Building & Construction
For 25 years we have provided advice on all building contracts and on building contract disputes including payment claims, disputes over variations, Construction Contract Act claims, disputes over delays in building works and claims over defective works.
Our clients include builders, developers, sub-contractors and owners of both residential and commercial property needing advice and representation on all building contract and payment disputes.
We advise clients before they sign building contracts on important terms and help clients having problems with their builders.
Because our offices are not located in the CBD our rates are substantially lower, often up to 20% lower, than most commercial law firms.
We have successfully handled large construction disputes in the courts, in the State Administrative Tribunal ('SAT') and in the Building Disputes Tribunal for all sorts of clients including construction companies, structural steel companies, sub-contractors, developers and home owners.
We handled a case involving the owners of Lots in a Mandurah Canal subdivision in dispute over access to jetties and the case was won.
We represented a prominent winery in dispute with a builder that was set down for a 4 day trial in the SAT. On day 2 of the trial the other side's lawyers advised us their client would not continue defending the case and they consented to judgment for all of our client's claims and completed rectification work as ordered by the SAT.
Advice on Fines & Penalties and Possible Defences
A common breach of the Building Act 2011 and the Planning and Development Act 2005 is carrying out building work without a permit.
In a recent case we were successful in obtaining a reduced fine for our client building company of $15,000, when a fine of up to 2 million dollars could have been imposed.
Pursuant to the Building Act 2011, the penalty that applies is:
a. for the first offence - a fine of $50,000
b. for the second offence - a fine of $75,000
c. for a third or subsequent offence - a fine of $100,000 and imprisonment for 12 months.
Under section 40(5) of the Sentencing Act 1995, the penalty is five times the amount of the maximum fine if the offender is a company which sees the fines above increase to $250,000, $375,000 and $500,000 respectively.
Under section 9 of the Building Act 2001 the penalty is a fine of $50,000 for a first time offence. Pursuant to section 40(5) of the sentencing Act 1995 the penalty is five times the amount of the maximum fine if it is a company, which equals $250,000.
Under section 223 of the Planning and Development Act 2005 the penalty is a fine of $200,000. Under section 40(5) of the Sentencing Act 1995 the penalty is five times the amount of the maximum fine if it is a company, which equals $1,000,000.
Therefore, the total maximum penalty is a fine up to $1,250,000.
We can provide you with advice on how you may receive a reduced penalty.
In September this year we represented a building company in a prosecution by the City of Canning.
The local council commenced a prosecution pursuant to the Planning and Development Act 2005 (WA) against our client for carrying out building works without approval.
There were three charges against our client and the maximum fines which could be imposed exceeded 2 million dollars.
The reason the fines available were so high is because the legislation requires that for a breach by a company a penalty of 5 times the penalty for an individual is imposed.
At the sentencing hearing we submitted that a fine in the low range should be imposed for the following reasons:
The work carried out wasn’t a significant departure from what was approved, there was no element of mischief or pre-meditation;
A guilty plea was entered at the earliest possible opportunity;
The company had no prior convictions;
The breaches were easily and quickly remedied;
The commercial benefit gained from the breaches was minimal and unintentional;
There was no inconvenience or harm caused by the breaches.
His Honour accepted our submission that this was a small family run company and therefore the increased penalty that is imposed against companies should not apply.
His Honour commended our client on taking immediate steps to reverse the breaches, entering an early guilty plea and entering into discussions with the Prosecutor to agree on some of the facts in dispute. He said this was of considerable public benefit in saving the Court and the City of Canning’s resources.
His Honour imposed a penalty of $5,000 per offence being $15,000 in total. This was a great result considering our client could have been required to pay over 2 million dollars.
If you have received a prosecution notice from your local council it is crucial that you contact us immediately so we can provide you with our advice on how to ensure that you take all the necessary steps to ensure you will receive a reduced penalty.