Case Study: Building Defects – Cladding Court Case

The subject of this case study is a construction litigation case of a mixed-use building in NSW that CJK has been involved with since 2021.

The multi-storey building contains a mixture of commercial and retail tenancies and residential apartments with the Occupation Certificate being issued in 2017. The building was constructed with external cladding and was found to have building defects, so the Owner’s Corporation took the builder to court.

Christina was engaged as an expert witness by a construction law firm who represented the builder. She was briefed to provide her independent expert opinion on the external cladding and whether it should be removed and replaced at the expense of the builder.

After reviewing a multitude of documents and drawings, the relevant Building Code, and conducting onsite inspections, Christina concluded that the Aluminium Composite Panels and their installation complied with the Deemed-to-Satisfy Provisions of the Australian National Construction Code at the time of approval.

Years of meetings, reports and communication with the lawyers and participating in conclaves with the opposing expert witness finally resulted in an outcome. The outcome was in the builder’s favour!

The opposing council reviewed the reports and evidence given by Christina and subsequently admitted that the builder was not at fault. It was found that the cladding was compliant at the time, does not present a safety issue today and does not need to be replaced.

We do not know how much the Owner’s Corporation spent on legal fees but it is safe to say it would have been more cost effective to have a fire safety engineer assess the cladding before they decided to take legal action. Not all cladding must be removed to ensure the safety of a building and its occupants. This is determined in a case-by-case basis.

Here are some key points to consider:

• Compliance with Building Code: Ensure building materials are assessed against the Deemed-to-Satisfy Provisions of the National Construction Code at the time of approval.
• Cost-Effective Approach: The case highlights the importance of assessment by fire safety engineers. Before pursuing legal action, having an expert evaluate a fire safety defect beforehand can potentially save money.
• Other Legal Options: Mediation and expert determination are other dispute resolution options that can be utilised.