July 15th, 2009 at 04:38am
Under Immigration Law
Throughout the historic 2008 presidential campaign, Barack Obama and John McCain have disagreed and debated over issues such as the war in Iraq, the economy, and faith and values, rarely agreeing on a problem or solution. However, when it comes to the need to reform United States immigration laws, both candidates seem to be on the same wavelength and both are determined to secure U.S. borders and provide a path to citizenship for law-abiding undocumented immigrants and their families.
According to barackobama.com, the problems with immigration laws include a forty percent explosion in undocumented immigrants since 2000, broken immigration bureaucracy and unsuccessful immigration raids, which produced only 3,600 arrests in 2006.
Obama said, “The time to fix our broken immigration system is now … We need stronger enforcement on the border and at the workplace … But for reform to work, we also must respond to what pulls people to America … Where we can reunite families, we should. Where we can bring in more foreign-born workers with the skills our economy needs, we should.”
The Democratic nominee wants to secure the borders by adding needed personnel, infrastructure and technology at U.S. borders and ports. Obama and running mate Joe Biden want to improve the immigration system by keeping immigrant families together and providing business owners with the workers they need to contribute to the economy. In addition, “Obama and Biden will remove incentives to enter the country illegally by cracking down on employers who hire undocumented immigrants,” according to his website.
The Democratic ticket would also change immigration laws by requiring that undocumented immigrants pay a fine, learn English and go to the back of the line if they want to become United States citizens. Furthermore, Obama and Biden want to work with Mexico to promote economic development so that immigrants will not feel the need to enter the U.S. illegally to earn suitable wages to support their families.
McCain and running mate Sarah Palin also favor reforming immigration laws to promote a secure border, a path to citizenship and punishment for companies that hire undocumented workers.
“As you know, I and many other colleagues twice attempted to pass comprehensive immigration legislation to fix our broken borders; ensure respect for the laws of this country; recognize the important economic contribution of immigration laborers; apprehend those who came here illegally to commit crimes; and deal practically and humanely with those who came here, as my distant ancestors did, to build a better, safer life for their families, without excusing the fact they came here illegally or granting them privileges before those who have been waiting their turn outside the country,” McCain said.
To secure U.S. borders McCain will set guidelines to secure the border through physical and virtual barriers, deploy unmanned aerial vehicles in border states, and continue the utilization of the US-VISIT visitor security program.
McCain and Palin would prosecute “bad-actor” employers who hire undocumented workers by creating a database that would quickly verify a job applicant’s work eligibility status. The Republican would also reform immigration laws by creating a temporary worker program that meets the labor needs in this country by ensuring that students who are educated in America have the opportunity to work in this country upon graduation and reforming caps for the H-1B visa program to rise and fall with the demand for workers and market conditions.
And like their Democratic counterparts, the Republican ticket would change immigration laws by requiring all undocumented workers to enroll in a program to resolve their citizenship status, which will require them to pay fines, learn English, pass a citizenship course and guarantee that no one who enters this country illegally will get a green card before those applying legally.
By Law Article
July 15th, 2009 at 04:38am
Under Immigration Law
Throughout the historic 2008 presidential campaign, Barack Obama and John McCain have disagreed and debated over issues such as the war in Iraq, the economy, and faith and values, rarely agreeing on a problem or solution. However, when it comes to the need to reform United States immigration laws, both candidates seem to be on the same wavelength and both are determined to secure U.S. borders and provide a path to citizenship for law-abiding undocumented immigrants and their families.
According to barackobama.com, the problems with immigration laws include a forty percent explosion in undocumented immigrants since 2000, broken immigration bureaucracy and unsuccessful immigration raids, which produced only 3,600 arrests in 2006.
Obama said, “The time to fix our broken immigration system is now … We need stronger enforcement on the border and at the workplace … But for reform to work, we also must respond to what pulls people to America … Where we can reunite families, we should. Where we can bring in more foreign-born workers with the skills our economy needs, we should.”
The Democratic nominee wants to secure the borders by adding needed personnel, infrastructure and technology at U.S. borders and ports. Obama and running mate Joe Biden want to improve the immigration system by keeping immigrant families together and providing business owners with the workers they need to contribute to the economy. In addition, “Obama and Biden will remove incentives to enter the country illegally by cracking down on employers who hire undocumented immigrants,” according to his website.
The Democratic ticket would also change immigration laws by requiring that undocumented immigrants pay a fine, learn English and go to the back of the line if they want to become United States citizens. Furthermore, Obama and Biden want to work with Mexico to promote economic development so that immigrants will not feel the need to enter the U.S. illegally to earn suitable wages to support their families.
McCain and running mate Sarah Palin also favor reforming immigration laws to promote a secure border, a path to citizenship and punishment for companies that hire undocumented workers.
“As you know, I and many other colleagues twice attempted to pass comprehensive immigration legislation to fix our broken borders; ensure respect for the laws of this country; recognize the important economic contribution of immigration laborers; apprehend those who came here illegally to commit crimes; and deal practically and humanely with those who came here, as my distant ancestors did, to build a better, safer life for their families, without excusing the fact they came here illegally or granting them privileges before those who have been waiting their turn outside the country,” McCain said.
To secure U.S. borders McCain will set guidelines to secure the border through physical and virtual barriers, deploy unmanned aerial vehicles in border states, and continue the utilization of the US-VISIT visitor security program.
McCain and Palin would prosecute “bad-actor” employers who hire undocumented workers by creating a database that would quickly verify a job applicant’s work eligibility status. The Republican would also reform immigration laws by creating a temporary worker program that meets the labor needs in this country by ensuring that students who are educated in America have the opportunity to work in this country upon graduation and reforming caps for the H-1B visa program to rise and fall with the demand for workers and market conditions.
And like their Democratic counterparts, the Republican ticket would change immigration laws by requiring all undocumented workers to enroll in a program to resolve their citizenship status, which will require them to pay fines, learn English, pass a citizenship course and guarantee that no one who enters this country illegally will get a green card before those applying legally.
By Law Article
July 15th, 2009 at 01:05am
Under Insurance Law
The following Q&A’s have been provided to help you better understand Insurance Law.
Q. Our home recently burnt down accidentally and now the insurance company is refusing to pay the claim due to the presence of white ants although we had another claim some years ago which was assessed and adjusted by their representative and the claim paid with the white ant damage being noted at that time with ongoing renewals continuing to be offered without condition. Can they do that?
A. No. Any insurers who deny claims for these reasons have little understanding of how their policy operates as they suffered no prejudice with the operating cause being fire not white ant damage provided it has not become worse and the fire was not set to cover this up.
Q. I recently went to my chiropractor for manipulations to my neck to assist with pain management and now six months later I am far worse off than before. What can I do?
A. It would appear that the manipulations were not successful and this may be due to a failure by the chiropractor to adopt the standard of care appropriate to treat your condition which may allow you to sue him in negligence for damages.
Q. I recently went out with some friends on a Friday night and became slightly the worse for wear. Although the events of that are rather hazy I do recall that we got into a fight in which I was injured. I was taken to hospital and had treatment for various bruises, lacerations and abrasions to my body. The next day on going back to collect my car I found it had been badly damaged during the course of the fight. I claimed against my insurance company but they have refused to pay it suggesting that I was responsible for causing the damage to it. What can I do?
A. Obviously you would be able to prove there was a fight and you suffered injuries and were taken to hospital. As a result, as there would be no difficulty in determining where the fight scene was which I assume to be adjacent to your motor vehicle then in these circumstances provided your bonafides are not in doubt then the insurer should pay your claim and if they do not then you have remedies at law. Suffice to say a comprehensive motor vehicle policy covers all types of accidental damage which occurs to a motor vehicle.
Q. I was involved in a car accident and I have lodged a third party claim with the other driver’s insurance company who are refusing to pay saying that I caused the accident which is incorrect because the other driver smashed into me from the right hand side. What should I do?
A. You need to find a solicitor who is an expert in insurance property damage claims as they possess fundamentally different knowledge from personal injury lawyers who deal with workers compensation, motor accident acts claims and public liability/personal injury matters. A property damage insurance lawyer will be able to address the necessary problems you confront and should be able to get the claim paid by the other party’s insurer.
Q. Recently my son was at a sporting activity where he was playing up, physically abused by his teacher and forced to leave the event to seek medical attention as a result. Do we have a claim for professional negligence against the teacher or school as I wish to teach them a lesson?
A. Although you would be entitled to make a claim against both the school and the teacher, the question is whether you would be successful in damages. The simple answer in New South Wales is no, unless your child sustained serious ongoing injury or has suffered serious psychiatric illness. Since the medical evidence indicates that he will make a full recovery, the school should be approached to take disciplinary action against his teacher.
Q. Recently I took a couple of my newly born pups to see a local vet where they contracted a virus and subsequently died. What should I do?
A. To put it simply, you should contact the vet and say that you are looking for an apology and compensation. If the animals were not particularly valuable then it would not appear to be a case in which it would justify you retaining a solicitor. Do the best you can in the circumstances.
Q. What happens if someone communicates a full transcript of what a member of parliament said in parliament through the media which has had the effect of seriously impacting my business?
A. This does not amount to defamation as it is the record of a conversation the subject of parliamentary privilege and where true there is no damage at law.
Q. Recently my son was overcome by a smoke machine at a school function which triggered a severe asthma attack, resulting in him being rushed to hospital and admitted to intensive care where he responded to treatment. Is there anything we can do in the circumstances?
A. No. Although you have the potential to pursue a personal injury claim on behalf of your son, the fact that he is in the process of making a full recovery precludes you taking action for damages at common law.
By Law Article
July 14th, 2009 at 03:01pm
Under Divorce Law
With the divorce rate at an all time high, it is important to have a full understanding of divorce laws. Nearly 50% of all marriages will end in a divorce. Therefore, it is vital that you know the ins and outs of the laws. Divorce laws do vary from state to state so it is important that you check with the laws for your particular state. However, there are some general laws that apply across the board.
If you are looking for an alternative to the more traditional litigation, divorce mediation might be an option. A mediator’s main priority is to try and help the two parties come to a mutual agreement. The neutral third party is there to ensure that both parties are getting a fair deal. A mediator can work with the spouses to work through problems such as child support, custody, visitation, property division, alimony and much more.
Another alternative to the more traditional litigation is collaborative law. For those divorcing couples who wish to avoid litigation but require strong legal representation, they should consider collaborative law. Collaborative law gives you the ability to retain a team of divorce professionals.
Some people believe that one party will receive a majority of the property division. However, it is more likely that the marital assets will be divided fairly evenly for both parties. Therefore, it is vital that both parties create some clear priorities and decide what is really important to them.
Health insurance and taxation are two other important issues when considering a divorce. If your insurance coverage is through your soon to be ex-spouses employer, then it will be important that you continue to have coverage for yourself and any children involved. This can all be worked out through legal litigation. With regards to taxes it is important to determine what dependency exemptions both parties are eligible for.
There are a variety of divorce laws that are set in place for divorcing couples. Divorce is not an easy situation for anyone. However, by knowing and understanding the divorce laws in your particular state, you can ease some of the headache associated with divorce.
By Law Article
July 13th, 2009 at 11:37pm
Under Administrative Law
As already indicated, the role of law as a means of controlling behavior is very limited. It is a weapon in the state’s normative armory but it is rarely the strongest and in some areas it is totally ineffective. It is an essential backstop in persuading officials and citizens to avoid corrupt behavior. It reinforces ethical standards for the good and provides some potentially strong reasons for those who are not (although the strength of those reasons is limited by the perceived likelihood of detection). However, the main game lies elsewhere. Law actually has a role to play in that ‘main game’ by creating institutional structures, setting out the powers of public officials, and monitoring the exercise of those powers under judicial review.
In best practice regimes, law already does these things. However, there are a number of ways of moving beyond best practice. Most of them ensure that the law is ‘in synch’ with ethical standards and institutional reform so that the three really do operate as a ‘trinity’ rather than as disparate, uncoordinated, and potentially conflicting integrity measures.
Determine What is Required
Law can play different roles – indicating what is acceptable and unacceptable behavior, providing reasons for action, removing offenders from the position where they can re-offend, creating institutions and structures, providing review mechanisms, etc. Every law that has a part to play in the integrity system of a jurisdiction should be considered in terms of the role it is intended to play and the role that it can play, and be amended accordingly.
In this process, drafters and politicians should always be aware that there is a more constructive use of laws than merely imposing higher penalties. They should also be aware of the value of laws that declare values and the means to achieve those values.
However, where penalties are involved, consideration should be given to the harm that is caused by corruption and the forms of penalty that will weigh most heavily with potential offenders.
Ensure that Laws Reflect and Back up Ethical Codes
Following the drawing up of the general public sector ethical code, the laws creating offences for public officials and those who deal with them should be reconsidered to ensure that they play their backstop role. First, public sector reformers should consider at what point on the normative continuum legal sanctions should be imposed. Secondly, laws should be re-drafted in terminology that reflects the ethical norms they are supporting. Thirdly, such laws should be considered for their consistency with ethical standards, ensuring that the most grievous ethical breaches are criminalized and that behavior which is ethical is not.
Setting the Powers of Public Servants
We have already remarked on the importance placed on ‘legality’ by public servants. Laws should spell out what public servants have the power to do and the purposes for which they have been given those powers. Legislators should consider very carefully the purposes for which power is given and ensure that they provide only the powers that are needed. (This should be contrasted by the tendency to grant very broad powers to public officials. This is not surprising where laws are frequently proposed by the same public servants who would exercise them). Such an approach also makes judicial review and administrative law generally easier because one can interpret the inevitable ambiguities in the powers conferred in terms of the purposes for which they are given and the justifications for doing so.
By Law Article
July 13th, 2009 at 05:39pm
Under Admiralty Law
The Civil Procedure Act 2005 (NSW) commenced operation on 15 August 2005. The Act represents a major progression in the regulation of civil litigation in NSW. For the first time in history civil proceedings in the Supreme, District and Local Courts and the Dust Diseases Tribunal will be governed by one set of common rules.
The sections of various Acts that have been moved into the CP Act are largely sections governing common procedural, as opposed to substantive matters. Those sections include matters of common concern to all the courts such as, case management regimes, costs and interest.
The Act will also streamline and simplify procedures and remove unnecessary differences between courts. It will lead to time and costs savings for the courts, the legal profession and the public. The Act also makes provisions allowing courts to utilise new technologies such as electronic lodgement of documents by clients and more efficient court management practice.
The Uniform Civil Procedure project, which formulated the Act and its accompanying rules, commenced in early 2003. A working party was established and chaired by Justice Hamilton of the Supreme Court of New South Wales. The party consisted of representatives of the District Court, the Local Court, the Bar Association, the Law Society of New South Wales and the Attorney General’s Department.
The guiding philosophy of this process was to deliver a common set of rules across the various levels of jurisdiction within the NSW judicial system. Under this policy three specific goals were targeted; to provide a common set of rules, simplified where possible, but without radical changes in substance or form.
The Civil Procedure Bill was finalised in September 2004.
The new Act and rules generally apply to civil proceedings in the Supreme, District and Local Courts and the Dust Diseases Tribunal. The Act and rules largely reflect existing provisions and continue to use phrases that have a settled legal meaning. The Civil Procedure Act contains some provisions moved form the Supreme Court Act 1970, the District Court Act 1973 and the Local Courts (Civil Claims Act) 1970.
A number of acts have been repealed in the wake of the new Act. Statutes that regulate civil procedure such as the Arbitration (Civil Actions) Act 1983, the Damages (Infants and Persons of Unsound Mind) Act 1929, the Judgment Creditors Remedies Act 1901 and the Local Courts (Civil Claims) Act 1980.
The relevant provisions of these Acts that have survived the consolidation process have generally been moved into the CP Act and rules and the Local Courts Act 1982.
Despite the prevailing policy of the project to streamline civil procedure and create a uniform regime, some differences between different courts have been maintained. In most instances this was a matter of practicality. The approach adopted recognises the fact that not all proceedings are the same. For example simple debt claims in a Local Court should not be subject to the same requirements as complex proceedings in the Supreme Court.
In other cases time constraints prevented the working party from moving specialist civil rules regarding probate and appeals to the Court of Appeal into uniform rules. It is intended that work will commence on moving these specialist rules into the uniform rules after the commencement of the initial set. The Corporations Rules and the Admiralty Rules, will not be moved into the uniform rules because they operate on a federal basis and are therefore apply nationally.
The main changes in terms of structure are moving directions and case management rules to an early position in the CP Act. This step was taken to embody the overriding purpose to give effect to the requirement of a just, quick and cheap disposal of proceedings.
Apart from the above alteration to structure the order of the Supreme Court Rules and the District Court Rules has essentially been maintained, that is, the process from beginning to end. This has been done to keep the rules both logical and familiar to users.
The CP Act gives a statutory basis for the issue of practice notes and regulates the relationship between itself, the CP rules and the remaining balance of the present rules. The senior judicial officer will be able to issue practice notes to deal with specific aspects of civil proceedings in a court. Under the operation of s 15 of the Act the practice notes will be subject to the CP rules and they will be disallowable under Part 6 of the Interpretation Act.
Furthermore s 17 allows the Uniform Rules Committee to approve forms for use in civil proceedings. New simple common forms address a number of concerns that have been raised about the existing forms and will meet future electronic filing requirements. The forms are available on court websites, at court registries and via legal publishing companies.
This simplified set of common forms will be used in all courts. This helped to give effect to an important objective of the project as it will save on costs. Practitioners will only have to keep one set of forms on their records and fill the required categories depending on which court they were in.
In all three courts there are to be two forms only of originating process, that is, statement of claim and summons. Additionally the rules as to pleadings and discovery and interrogatories are to be maintained.
The recently harmonised rules that have been adopted on a federal level regarding subpoenas are to be adopted by the CP Act.
By Law Article
July 12th, 2009 at 02:58am
Under Criminal Law
The following Q&A’s have been provided to help you better understand Criminal Law.
Q. Am I likely to get off a speeding charge if I can prove that my car’s speedo was in error?
A. No, but this would be taken into account when you are sentenced.
Q. Unfortunately I do not have a good driving record; I am separated from my wife who does not have a driver’s licence which means that I have to take my son to and from child care. Will this be taken into account although I have recently committed another driving offence?
A. Yes. The court takes a very poor view of repeated transgressions by drivers particularly where they are young and have a bad driving history. Courts often take into account these circumstances but more particularly where the offender’s continuing employment is likely to be affected.
Q. I have just ended a short term relationship with my former girlfriend who is threatening that if I do not return to her she will report me to the police saying that I sexually assaulted her?
A. This situation is not uncommon and involves both males and females alike. Irrespective of gender if you are blackmailed by someone to return to a relationship which you have terminated then do not hesitate to approach your lawyer and have them contact the police to ensure that you are adequately protected.
Q. I am 40 years old and involved in sales and I have recently been charged for the second time with high range PCA. What should I do?
A. The courts do not like drink-driving offences and more so where they are high range PCA. Where this type of offence has been repeated within a period of five years then the penalties are severe involving disqualification, fine and/or imprisonment. In all such cases proper legal advice should be obtained in order to mitigate the sentence and questions of financial hardship associated with losing your licence need to be ventilated with the court to obtain consideration.
Q. Recently I was picked up for exceeding the speed limit by more than 30 kph and I am concerned that I am may lose my driver’s licence when this matter comes before the court. I need to know what to do?
A. In NSW where you are exceeding the speed limit by over 30 kph it is an serious offence as it constitute dangerous driving. Aggravated dangerous driving occurs where a person exceeds the speed limit by more than 45kph which involves automatic suspension of licence and in some cases a term of imprisonment.
Q. Do courts take into account a prior drink driving record and does it have any appreciable effect on the sentence handed down?
A. In NSW a prior drink driving offence within a period of five years has an appreciable effect on the sentence imposed by any court. For a low range PCA for a first offender there is an automatic minimum disqualification period of three months apart from the question of fines or imprisonment. In the case of a second offence committed within a five year period there is an automatic minimum disqualification period of six months apart from the questions of fine and imprisonment once again. The lesson is, if you have been caught once for drink driving don’t get caught again irrespective of whether the courts are only meant to take a prior offence into account within a five year period as they are entitled to consider the whole of your driving record when imposing sentence.
Q. I was recently at a sporting event and my conduct was a bit untidy. As a result I said some derogatory things about one of the teams playing and unfortunately I was sitting amongst a lot of their supporters. Apparently they called the police. Whilst I was standing up cheering I felt an arm on my shoulder which I attempted to shrug off. The next thing I knew I was being wrestled to the ground by police and taken to a nearby police station where I was subsequently charged. The charges included – resisting arrest and striking a policeman whilst on duty. Is this serious?
A. Yes. Unfortunately resisting arrest and striking a police office in the performance of his duties carries an extended gaol term. In your case the matter needs to be properly explained to the court to mitigate your sentence.
Q. I am a young person who has had a AVO taken out against me as it is alleged that I have had a sexual relationship with a minor. What do I do in the circumstances?
A. You will need to obtain the services of a competent criminal lawyer to aggressively defend you with respect to the AVO. Under no circumstances whatsoever should you speak to the police given the gravity of the allegations against you and rely upon your right to silence. If the police call on you then you should refer them to your lawyer and if arrested the police should give you the opportunity to contact them prior to being interviewed. In all these cases it is absolutely imperative that you be properly represented and say nothing to anybody in any context whatsoever about this matter. The success or otherwise of these types of cases often depend upon whether you have made admissions including what other evidence you have furnished to the police which provides them with an opportunity to obtain further information against you.
Q. Recently I was charged with sexual assault by my ex-wife who suffers from mental illness. She has a history of bizarre behavioural problems but despite this the police would not listen. What should I do?
A. Any form of sexual assault is a serious matter which can lead to a long term of imprisonment. Under no circumstances should you make any admissions to the police thereby exercising your right to silence. Given the seriousness of the allegation you should retain a competent criminal lawyer who can assist you to deal with this matter. Fortunately you will be put to unnecessary expense and unless the police have acted maliciously the costs to defend yourself are not recoverable.
Q. I lent some money to a friend who was in financial trouble on strict terms and conditions about repayment. Subsequently he defaulted and I continued to discuss the matter with him until he indicated he wasn’t going to pay me back. During the course of discussions it was agreed I would visit him at his home to ascertain what could be done to remedy the situation. I attended his home and after much discussion a fight broke out which led to him being hospitalised. What should I do?
A. Given the serious nature of what happened you should immediately retain a competent criminal lawyer to assist you. Serious assault cases can lead to extended periods of imprisonment if there are no mitigating circumstances.
By Law Article
July 11th, 2009 at 08:56pm
Under Construction Law
The following Q&A’s have been provided to help you better understand Building & Construction Law.
Q. My next door neighbour has backfilled behind a decorative wall on one side of my property which is within my boundary and despite repeated attempts to stop this my neighbour continues to disregard my wishes. Is there anything I can do?
A. You need to retain a solicitor to write to your neighbour to serve them with notice that this practice is to stop and that they are to remove the backfill from your premises otherwise you will obtain equitable relief and take action against them for trespass.
Q. I went to a large well known building company which is involved in the design and construction of luxury homes. Some years ago I obtained a DA but construction has still not gone ahead as I had some reservations on the design. I have had a number of conversations with them and nobody seems to want to do what I want. What should I do in the circumstances?
A. There are a number of choices available to you including the following:
(i) Find another builder.
(ii) Negotiate with your current builder to find a satisfactory way of having your instructions carried out.
(iii) Buy the plans from them and have another builder do the building work for you.
(iv) If you have signed a building contract with them then seek specific performance.
(v) If there are misrepresentations involved then pursue your remedies at law.
(vi) If there are any breaches of the Home Building Act, Trade Practices Act or any other Act then pursue your remedies there.
Q. I applied for a DA some time ago to build some home units and for a variety of reasons only limited work has commenced on site. I wish to maintain the DA and on sell the property which will be far more valuable if this can be done. What can I do?
A. Obviously if you allow the DA to lapse you will have to apply for a new one which you may find it difficult to obtain. Irrespective you will need to prove to the local council that substantial works have commenced on the site and provided you have enough time you should carry out substantial earthworks which may assist you in this regard.
Q. Do I have to go to the local court to take action against a builder for defects?
A. No. Often where small building matters are started in the civil claims court the CTTT will refuse to accept them as it considers the former venue to be a more appropriate one within which the matter is to be heard.
Q. Do solicitors have an automatic right of appearance before the CTTT?
A. No. If the value of a building claim before the CTTT falls below $25,000 solicitors must approach the tribunal for leave to appear on behalf of their client.
Q. Do lawyers bring any value to proceedings before the CTTT NSW?
A. Yes. Often irrespective of the value of the matter before the tribunal complex contractual issues may arise where the member would appreciate some assistance in this regard.
Q. Do lawyers have any automatic right of appearance before the CTTT?
A. Yes. On matters over and above $25,000 up to the jurisdictional limit of $500,000.
Q. Are experts’ reports important in building and construction and home warranty matters?
A. There is a significant variation in the types of reports which are required for a wide range of building matters. Often these reports go to the heart of the matter and serve to explain issues which are essential to the court or tribunal’s understanding of what has or has not occurred. In home building matters experts’ reports are required not only to identify the range of defects but also to quantify and perhaps suggest rectification or repair as appropriate.
Q. When is home warranty insurance not required?
A. Where the value of the works is less than $12,000.
Q. How long is the defects liability period?
A. 13 weeks.
Q. For how long does home warranty insurance provide protection?
A. For six years.
Q. Are licensed builders required to perform all building work in NSW?
A. No. For a building work above $1,000 licensed contractors are required but with large building works that is, above three storeys, there is no current licensing regime for builders who service this area.
Q. What does home warranty insurance cover?
A. Formerly it used to cover both defects and the death, disappearance and insolvency of the builder, however today defects remain to be addressed directly by the builder with the latter three categories the subject of insurance.
Q. I have designed and constructed a number of houses over many years and I am concerned as to whether I could be pursued by a building warranty insurer where they have settled with the claimant and my involvement has been zero?
A. Yes. The old system was predicated on the basis that the insurer would either pay to have the works rectified or cash settle the matter. Irrespective once this had been done the builder would be pursued to recover the monies paid to the claimant.
Q. Are all defects recoverable from the builder?
A. Where the defects are within tolerance then neither rectification nor compensation can be claimed from the builder.
Q. Is it normal to prepay the builder prior to the commencement of works?
A. Where the value of building works is less than $20,000 a 10% deposit is required by the builder. Where the value exceeds this figure then only a 5% deposit may be claimed. As for other payments relating to the building works they may be either preclaimed or claimed during the course of construction. With most building contracts there is a retention which can be held back pending satisfactory completion of the works mainly to cover defects.
Q. Should a home warranty certificate be sighted before the builder commences work on site?
A. Yes. Although building warranty insurance is of limited value as it now no longer covers defects it is extremely important where builders or building companies go to the wall which occurs with greater frequency in times of an economic downturn.
Q. What should I do where I am physically threatened by the builder and I am dissatisfied with the progress and quality of the works performed?
A. First you should report it to the police. Second – retain a lawyer and obtain independent legal advice. Third – if you are in arrears bring the arrears up to date. Fourth – refuse to pay where the builder is clearly in breach of contract. Five – check all variations to ensure that they are properly claimed and are within time.
Q. How effective is disputes resolution when dealing with Australian construction and infrastructure projects?
A. Parties in dispute are often dissatisfied with the disputes resolution procedures in contracts. Unfortunately disputes are widespread throughout Australia and are normally associated with cost overruns irrespective as to how or why they arise. Essentially the majority of parties are not satisfied with the time, cost, process and outcome of disputes resolution. A lot of this can be traced back to insufficient time being applied to disputes resolution clauses at the time of precontractual negotiations. As in all these cases very little time is spent on precontractual matters with some contractors preferring to issue documentation themselves without referring it for proper legal advice to avoid these issues. The fees charged in this area are not a cost but investment in the future and it gets back to the age old adage of being penny wise but pound foolish. Who can afford the increased costs of unsatisfactory disputes resolution or litigation when the real money should have been spent up front obtaining proper legal advice and assistance rather than throwing buckets of money at a process which will surely leave one party badly disadvantaged and potentially wearing substantial costs.
By Law Article
July 10th, 2009 at 08:55pm
Under Construction Law
SECURITY OF PAYMENT ACT
The Building and Construction Industry Security of Payment Act 1999 (NSW) (”Security of Payment Act”) applies to all building and construction work in New South Wales except any residential building work carried to which the Home Building Act 1989 applies.
The intention of the government was to make it simpler for contractors or subcontractors to obtain progress payment for any building and construction work done, even though there is no written agreement.
A statutory debt is created under the Security of Payment Act without the rigmarole of going through the court system first to obtain judgment. This debt is then enforceable through the court system just like any other judgment/order of the court.
Payment Claim – Applicant
A payment claim:
1 must identify the construction work
2 must indicate the amount of the progress payment
3 must state that it is made under the Security of Payment Act
4 be served within either the period determined by the contract or 12 months after the construction work was last carried out
5 cannot be in respect of the same reference date
6 can include an amount not paid under a previous claim
Payment Schedule – Respondent
A payment schedule:
- must be served within the time required by the contract or within 10 business days after the payment claim is served
- must identify the payment claim
- must indicate the amount (if any) to be paid
- if the amount is less than the claim, then the reasons for it
If a payment schedule is not served or if a payment schedule is served for a lesser amount which is not paid, the claimant may:
- recover any unpaid amount as a debt
- make an adjudication application
- may serve notice of intention to suspend work under the contract
Adjudication Application
A contractor may apply for adjudication of the payment of a claim whether or not a payment schedule is served. There are a number of formalities which have to be complied with to ensure that the adjudication application is in proper form. The other party responds to the adjudication application by putting in an adjudication response which, like all of these documents has to be in writing. An adjudicator is appointed by the ANA based on fixed criteria. After considering all the evidence the adjudicator must give a determination in writing including the reasons for it.
Enforcement
If the adjudicator finds in favour of the claimant, the respondent must pay the adjudicated amount within five business days (or a later date determined by the adjudicator) after notification of the determination. If the respondent fails to do so then the claimant may:
- apply to the ANA for an adjudication certificate and file it in the relevant court as a judgment for debt and enforce the judgment accordingly;
- suspend any further work under the contract after giving the respondent due notice of its intention.
A respondent is not able to apply for a stay or any other order preventing the payment either under the payment claim or even if the adjudicator has made an error in the determination. Nor can the respondent bring a cross-claim against the claimant and an action for recovery. The respondent must initiate another proceeding and pay the adjudicated amount into court.
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