Judicial Remedies for Construction Defects: Common Law, Equity or Statute?

Philip Britton

May 2016

A paper based on talks to the Society of Construction Law New Zealand in Auckland on 17th March, Christchurch on 22nd March and Wellington on 23rd March 2016

If a construction project has defects what remedies can the building's owner then exercise, and against whom? The answer often depends on the provisions of the main construction contract, standard forms usually providing a defects correction period, with machinery under which rectification work can be organised and paid for. However, if the project is residential, no standard form may have been used and statutory adjudication will often be unavailable. Philip Britton considers the many differences between commercial/industrial projects and residential ones. He also looks at recent case law considering the assessment of damages for rectification work and the availability of specific performance to compel the builder to 'come back and get it right', as well as the impact of statutory protection for individual consumers.Although the paper's main focus is the common law, it includes insights from Australia and New Zealand, whose statutory regimes are more protective of residential consumers than English law.

Introduction: a residential scenario - Contrasts with commercial projects - Similarities and differences - Sue the statutory certifier? - Remedies against a builder or developer - The potential impact of standard forms - Consumers as claimants - Conclusions.

The author: Philip Britton LLB BCL is a Visiting Professor and former Director, Centre of Construction Law & Dispute Resolution, Dickson Poon School of Law, King's College London; also a Senior Fellow, Melbourne Law Masters. He is a consultant to the law firm Fairweather Law (Aldeburgh, Suffolk). E-mail philip.britton@marshwinds.co.uk.

Text: 22 pages