What is a Major Defect?
The HBA defines a major defect as one that ‘has caused or is likely to cause’ the inability to inhabit or use the building, the destruction of the building, or a threat of collapse of the building. The recent case of Stevenson v Ashton clarified that a defect may be classified as ‘major’ even if it is only ‘likely to cause’ these consequences. There does not need to be actual or imminent damage. This means that homeowners should take any potential defect seriously and seek expert advice to determine the severity of the issue.
Expert and Lay Evidence
Expert evidence is often relied upon to assess defects in a property, but the recent case of Stevenson v Ashton clarifies that lay evidence, including observations and photographs, may also be used to determine whether a ‘defect’ is major. Homeowners should take note of any observations they make, such as the location of staining, the absence of relevant elements of the work, and the fact of water ingress during a rain or flooding event. These observations can assist in determining what is likely to occur in the future.
Considerations for Homeowners
When assessing a property for defects, homeowners should consider the design life of the structure and the materials used. They should also take note of how long the defect has existed and whether the defect has resulted in any damage that might indicate the likelihood the premises will become uninhabitable or be destroyed. Homeowners should seek expert legal advice to determine the severity of any defects and take steps to rectify any issues to ensure the safety of the building.
The recent case of Stevenson v Ashton provides clarity on what constitutes a ‘major defect’ under the Home Building Act 1989 (NSW) (HBA). Homeowners should take note of the implications of the case and consider expert and lay evidence when assessing their property for defects. Homeowners should also conduct regular checks and assessments of their property to ensure any issues are resolved promptly to ensure the safety of the building.