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Homeowners launch legal action to force builder to demolish their house and start again

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Media Release

Published on

A Melton West family has launched legal proceedings in the Victorian Civil and Administrative Tribunal in a bid to force one of Australia’s biggest home builders to demolish their defective home and start again.

Slater and Gordon has lodged a statement of claim at VCAT on behalf of Earl and Shelley Softley, detailing a litany of serious structural faults that became evident at their home soon after it was completed by Metricon Homes in 2010.

The claim alleges Metricon failed to undertake construction works in a proper and workmanlike manner or in accordance with all relevant laws and that the builder failed to meet a contractual obligation to rectify at its cost any failures affecting the home’s structure.

The Softley’s lawyer, Robert Auricchio, said the case is significant and will be watched with keen interest, both by major players in Victoria’s domestic construction industry and hundreds of new homeowners whose houses have developed severe structural problems due to the phenomenon known as slab heave in recent years.

“This is a significant case which, if successful, will be the first time VCAT has ordered the demolition and reconstruction of a house in the state of Victoria,” Mr Auricchio said.

Mr Auricchio said the Softleys house was displaying serious structural faults due to slab heave, which affects many homes, particularly in Melbourne’s north and western suburbs where the soil is reactive and prone to swelling and contracting with changing moisture levels.

“When the Softley family contracted Metricon to build their first home, like so many other families they believed that by going to a large volume builder they would have some assurance that any faulty works would be rectified,” Mr Auricchio said.

 

“Sadly this has not proven the case and now the Softleys find themselves with no other option but to seek legal action.”

Despite repeated requests to Metricon to fix the house and several approaches to the Building Commission, the house is continually developing new cracks, has bowed ceilings, internal walls lifting off the floor and separation is occurring between the ceiling and walls.

Mr Auricchio said Slater and Gordon began investigating slab heave in 2011 and has since been approached by more than 100 homeowners experiencing similar problems to the Softley family.

In a submission to a Department of Treasury and finance review of consumer protection frameworks earlier this year, the firm called for the establishment of a task force to examine the slab heave issue.

“Unfortunately this offer was rejected and now we are forced to commence proceedings on behalf of families like Earl and Shelley softly,” Mr Auricchio said.

Background

In February 2009 the Softleys and Metricon entered into a new homes contract under which the builder agreed to build a dwelling for the sum of $200,140.

A key term of the building contract was that Metricon undertake works in a proper and workmanlike manner and in accordance with all relevant laws and that Metricon would rectify at its cost any structural failure of the foundations, load bearing brickwork and structural timber and steelwork in the wall or roof framing.

Between October 2009 and February 2010, Metricon carried out the works and the sum of $200,140 was paid by the Softleys to Metricon.

It will be alleged in the VCAT hearing that the works were not carried out in a workmanlike manner or in accordance with all legal requirements and that reasonable care and skill was not employed in the execution of the building works.

The failures include:

  • There was not proper backfilling and compacting of the site during construction to prevent water penetrating under the footings and into the foundation material
  • There was an absence of drainage system in accordance with the terms of the building contract – Metricon did not put in place a drainage system by the time it was complete, thereby failing ensure that water would not pond on or against the footing, allowing water to penetrate the slab during construction
  • There were missing downpipes, cut off drains and an absence of flexible fitting piping which allowed uncontrolled water penetration of and around the slab edge during construction
  • The slab was not constructed to maintain the required 85mm thickness and was not properly vibrated
  • Other faults include: missing double studs under girder truss locations, missing stud ties and incorrect fittings

The tribunal will hear that by late 2010, the Softley house was displaying symptoms of severe structural failure, with extensive cracking evident both internally and externally.

It will hear that repeated requests for rectification resulted in sub-standard fixes and the problems persisted.

VCAT will also hear that the site was wrongly classified as a Class H site when it should have been classified Class E, denoting extremely reactive soil and a requirement for a particular footing system that was not employed in this case.

The particulars of damage include:

  • Cracking in walls
  • Bowing in ceilings
  • Movement in tiles
  • Internal walls lifting off floor
  • Separation from the ceiling of internal walls
  • Cracks in floors and
  • Footing system failure

The tribunal will be asked to order that the house be demolished and rebuilt at an estimated cost of $259,729.

The Softleys are claiming damages, interest and costs.