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Cover page
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Introduction
In construction law, a claim refers to a formal assertion of rights or demands made by a
party to the other. In most cases, these parties are involved in the same construction project,
for example, a subcontractor and the contractor (Bailey et al., 2011). These claims are based on
issues that arise during construction and include delays, delayed payments and changes in the
scope, among others. In most construction contracts, contractors may request compensation
for damages caused by the failure of the other party to fulfil its obligations (Anderson et al.,
2021). This encompasses what a construction claim is all about. Additional payments or
extension of time for completing a project are the most common ways of compensation. For
parties making claims in construction projects, they are tasked to provide notice, have a basis
for the claim, specify the damages or relief sought and document their claim(s).

The Australian construction industry has grown over the last decade. This has seen the
number of construction claims increase. The government has adopted and enforced laws to
deal with these claims. The Design and Building Practitioners Act 2020 (NSW) and Home
Building Act 1989 (NSW) are some of such laws that will be analysed in this paper with a
detailed evaluation of Part 4 of the Design and Building Practitioners Act 2020 (NSW) and
section 18B of the Home Building Act 1989. The paper will focus on understanding the following
three aspects of the Acts: the building work covered, who the owner can make a claim against
and how the pleading would be differently drafted for the court.

Type of building work covered

Part 4 of the Design and Building Practitioners (DBP) Act 2020
The type of building work covered in these two legislations is different. Part 4 of the
Design and Building Practitioners (DBP) Act 2020 (NSW) primarily focuses on the duty of care on
a person who carries out construction work on a residential property. The person has a duty to
exercise reasonable care to avoid economic loss caused by defects from the building or
construction work done. The building work covered by DBP includes residential building works
within the meaning of the Home Building Act 1989.The building work involves various activities
related to construction, repair, alteration, renovation or demolition.1 The construction work for

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Design and Building Practitioners Act 2020(NSW)
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this buildings include the building work, the preparation of regulated designs and other
designs , the manufacture and supply of building products and supervision, coordination ,
managing and or substantive control of the building work. The design work including the
architectural and engineering drawings and other design works related to buildings and
certification work which entails certification practitioners who certify the building work to
comply with the law is also part of the building work covered by the DBP.

Section 18B of the Home Building Act 1989

Section 18B of the Home Building Act (HBA) 1989 relates to the warranties in residential
building work. It is specific to residential building work and covers new home construction,
renovation, repair works and quality standards. The Act, specifically in this section provides
homeowners with legal remedies if building work done is defective, substandard or does not
meet the contract specifications.2 They can also make claims if the work fails to meet standards
that had been agreed upon or results in defects. The building work also covers the structural
elements, roofing, electrical and plumbing among other major building works in residential
properties.

Claimants and who they can make a claim against

Part 4 of the Design and Building Practitioners (DBP) Act 2020
The owner of the residential building or land under which construction work is carried is
the claimant and makes a claim against the building and design practitioners and other parties
involved in the design and construction works and has breached their duty of care. This involves
the architects, engineers and other building professionals involved in the design and
construction processes. The designing, construction and certification processes are also part of
these processes. The owner is entitled to damages for breach of duty of care owed whether or
not construction work was carried out as per the contract or arrangement.

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Home Building Act 1989(NSW)
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Section 18B of the Home Building Act 1989

The owner of the land makes a claim against the builders and developers. The focus
here is on those involved in the physical construction of the building, including the contractor
on site, builders and developers. The statutory warranties are, however, not limited to a
contract to do the residential work for the owner of the land but also implied to the principal
contractor, who has been contracted to do the building work. It also includes the subcontractor
whom the contractor has engaged. Claims made under this legislation primarily deal with
defective work issues by focusing on the quality and workmanship of the construction. The
claim is, therefore, directed to the party responsible for any defective work that the owner of
the land has established. Defects in plumbing and electrical works, among other major
construction works, together with quality standards, form the basis of the claims by the owner
of the land.

Differences in pleading for court

Part 4 of the Design and Building Practitioners (DBP) Act 2020
The pleading should focus on establishing the breach of duty of care owed to the owner
by the design and building practitioners. There should be a demonstration that the design or
construction works for the building works failed to comply with the law and the breach has
caused harm or loss to the owner. If the owner has suffered any economic loss from the breach,
it should be well-documented in the pleading to present before the court. For an economic loss,
there should be proof that the owner suffered from the damage caused by the defects due to
the practitioners’ breach of duty of care. The practitioner will be liable for the losses, including
any reasonable costs of providing alternative accommodation where necessary. The legal team
must, therefore, focus on demonstrating how the building practitioners failed to meet their
statutory obligations by outlining specific breaches that include deviations from the approved
designs or substandard documentation. Under Part 4 of DBP, the owner must have the pleading
before the court and have detailed evidence to substantiate the claim.

Section 18B of the Home Building Act 1989

When drafting a pleading for the court related to a claim under section 18B of the Home
Building Act 1989, the legal team should focus on proving that the work performed by the
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contractor was defective. There should also be proof that any breach that leads to the claim
falls within the scope of the residual building contract. Any substandard workmanship or
materials used should be detailed in the pleading and linked to the damages suffered by the
owner. The owner and the legal team must also include in the pleading any defects in the work
carried out by the contractors, including specifications of the nature and extent of these defects
and their impact on the functionality of the building, including its safety and those of the
occupants.

The difference between drafting the pleadings for the court for claims in these two legislations
is based on the type of building work, specific elements that need to be established in the
claims and the parties involved.

Conclusion
The scope of building works in the two legislations differs, with Part 4 of the DBP
focusing mainly on the design, construction and maintenance works and their regulations. The
owner owes the person involved in the building works a duty of care which must be met, failure
to which the person is liable for any damages met by the owner. The legislation emphasizes the
quality and safety of the structure. Under section 18B of the HBA, the focus is on residential
building works and rectifying the defects in the work. If the landowner encounters economic
loss, the contractor must compensate.

The parties against whom claims are made in the two legislations also vary. In part 4 of DBP, the
claimant, the owner, seeks remedies from designers and builders. It can also involve other
parties involved in the building project. Section 18B of HBA provides owners with the power to
make claims against the builders/contractors who are responsible for the defective residential
works.

Preparations of pleading for the court also differ. When preparing to substantiate a
claim under Part 4 of the DBP, a more compressive and detailed presentation must be
presented before the court compared to that under s18B of the HBA. The claimant must
provide evidence that the developer failed to comply with the design and construction
standards, which typically involves understanding and documenting complex technical details.
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Preparation of pleadings under s18B of HBA is more straightforward as it requires identifying

the defects and their rectification.

Part 4 of the Design and Building Practitioners Act 2020 encompasses various building
aspects and parties by placing a regulatory burden on the practitioners in their works. Section
18 of HBA, on the other hand, holds contractors accountable for any defects caused.

The construction industry remains a vital sector of Australia’s economy. The need to have rules
and legislation is inevitable to regulate the industry. Owners have the privilege of claiming in
case of any breach. The contractors owe the owner a duty of care and must deliver work with
minimum or no defects expected. Liddy & Turner (2018). established that construction claims
are among the most worrying and unpleasant events for a building project. Most contractors
aim to make profits from the projects they are involved in and sometimes risk doing
substandard work. Despite the high competition in the industry, there have been cases of
breach of duty of care by contractors. Contractors have adopted various measures and
strategies to deal with the evolving industry that is becoming more complex and riskier from
the increasing number of claims, most leading to compensation affecting their profit margins.
These two legislations remain pivotal in regulating the construction industry (Hughes & Thorpe,
2014).

Bibliography
Articles, Books and Journals
Anderson, D., Bailey, J., Britton, P., Dixon, M., & Royce, D. (2021). Construction Law.

Bailey, I. H., Bell, M., & Bell, C. (2011). Construction law in Australia. Lawbook Company.
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Hughes, R., & Thorpe, D. (2014). A review of enabling factors in construction industry
productivity in an Australian environment. Construction Innovation, 14(2), 210-228.

Liddy, W., & Turner, J. (2018). Building regulatory reform in Australia. Journal of Building
Survey, Appraisal & Valuation, 7(1), 68-79.

Legislations
Design and Building Practitioners Act 2020(NSW)

Home Building Act 1989(NSW)