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Dealing with Building Defects and Strata Insurance Claims

Dealing with Building Defects and Strata Insurance Claims

By | Articles, Body Corporate

The sudden collapse of a Miami apartment block on June 24, killing more than 98 people, made headlines around the world and focused attention on the horrific consequences of unaddressed building defects.

Initial findings on the collapse of the Champlain Towers South in the Florida suburb of Surfside suggest long-term degradation of reinforced concrete supports in the underground parking garage caused by water penetration from a leaking pool was a major factor.

In Australia, the increasing popularity of living close to work, retail and transport facilities means ever more high-rise apartments in our major cities and regional centres. As a result, developers rapidly construct new blocks to meet the demand, not always with the rigour required of modern construction and building codes.

High profile local cases of building defects such as the slanting of Sydney’s Opal Tower and the fire at Melbourne’s Lacrosse building have highlighted some of the legal issues involved for owners in such properties, which we’ll look at in this post.

Building defects and strata properties

A building defect can be caused in a number of ways, from faulty workmanship to poor design, use of defective materials, or a failure by a builder to follow standards set out in the National Construction Code.

For a fault caused by any of these means to be considered a defect, it must carry the risk of damage or destruction to the building or make it unable to be used for its intended purpose. This is considered a major defect.

A minor defect, by contrast, is any defect that is not a major defect and will usually be a cosmetic fault.

Common building defects include damage caused by inadequate waterproofing or cracks which appear in walls, ceilings and floors due to issues with a building’s structure.

In Queensland, a building defect is a faulty or unsatisfactory work under the terms of the Queensland Building and Construction Commission Act (‘the Act’).

Under the Act, statutory warranties exist in relation to new buildings, enforced by the QBCC. Within these periods, the builder is responsible for remedying any defects.

Defect liability periods in Queensland

Defect liability periods are the time limits in Queensland within which an owner or body corporate can make a claim against the builder to remedy defects.

Structural, or major, defects such as water leaks, major cracks and structural failure have a defect liability period of six years + six months from the ‘practical completion’ date of the building in Queensland.

Non-structural defects such as frayed carpet, or paint and tiling defects, for example, have a 12-month defect liability period.

Once a defect is detected and known about, it must be reported to the builder within 12 months through lodgment of a defective building work complaint with the Queensland Building & Construction Commission.

Defects found on both individual and common property in strata properties are covered by the statutory warranty. The body corporate may bring an action to have the defect remedied on behalf of a lot owner.

It’s important for a body corporate to act quickly once a building defect is known about as after the expiration of the warranty, responsibility for rectification will generally fall on the body.

It should be noted that a body corporate is not responsible for building defects within lots unless those defects relate to the structure of a building and the building was created in a building format plan.

Strata insurance claims

Strata insurance is taken out by a body corporate to cover public liability, damage to common property and common area contents, theft, recovery after a catastrophe, and legal liability for office bearers.

Many strata insurance policies include excluding any loss or damage arising from an existing defect in the building’s construction and/or design.

Such exclusion may leave a body corporate with limited or no cover in relation to building defects.

Bodies corporate should also check a similar exclusion is not part of the public liability coverage of the policy so that they are covered in the case of personal injury that might result from a building defect.

A body corporate can reduce its exposure by establishing the practical completion date of the building and being aware of the statutory warranty period; commissioning a defect report well before the expiry of the warranty; actioning any defects identified in the report before the liability defection period expires.

Consult specialist legal professionals

OMB Solicitors’ specialist practitioners in this area of the law mean we regularly advise bodies corporate on the complexities of strata insurance policies when building defects arise in buildings.

We will help advise on the fine print of the policy. We will also provide a body corporate with the right advice to enforce rectification of defects through the QBCC, or a separate contractual claim against a developer or builder in relation to defects.

Call us Gold coast Solicitors today if advice is required on any of the issues raised in this article.

accredited specialist

Choosing a Family Lawyer – What is an Accredited Specialist?

By | Family Law

OMB Family Law Partner, Abbi Golightly, is an Accredited Specialist in Family Law and has been since 2009.

So, what does that really mean for you, our clients?

The Queensland Law Society developed a process of assessment and accreditation in the main areas of practice in Queensland, including Family Law.  The QLS operate the Specialist Accreditation Scheme as a method by which to identify those members of the Queensland Law Society who have demonstrated a high level of expertise in a particular area of law.

In order to achieve Accredited Specialist status, there are a number of requirements that have to be satisfied to the highest level.  First and foremost, the lawyer has to have been practising almost exclusively within the relevant area of law for at least five years.  Thereafter they must pass the stringent assessment program offered by the QLS.

This assessment process involves interviews, exams and submitting examples of work and in order to pass, each discipline must be passed.

Once achieved, Accredited Specialist status is maintained by undertaking a higher level of professional development every year in order to maintain a level of knowledge that is expected of a specialist.

You can identify an Accredited Specialist by the QLS logo that can only be used with the approval of the QLS.

Here at OMB Solicitors, you can see that logo on our website and in our email signatures.

Why does having an Accredit Specialist matter in family law?  Family Law is one of the most complex areas of law.  It involves traversing many legal disciplines but also involves a skill set of empathy, understanding, compassion and negotiation skills.

When you see the Accredited Specialist symbol, you can be confident that your lawyer has a skill set that will be applied to help you achieve the best outcome possible in the circumstances.  It also means that that skill set is passed on to other members of our family law team, who will be trained by the best in the business also.

The Countdown is on – the merger of the Family Law Courts is nearly upon us

The Countdown is on – the merger of the Family Law Courts is nearly upon us

By | Family Law

On 1 September 2021, the family law courts Federal Circuit and Family Court of Australia will commence operations.

The new court is being touted as an opportunity to change the conversation about family law disputes in Australia.  That conversation is focused with great emphasis on dispute resolution (where it is safe to do so) before commencing proceedings and if proceedings are required, ensuring parties are aware of the ramifications for them and their families.

For those families that require judicial intervention, the process is intended to be transparent and more efficient with resolution without undue delay.  It is also designed to have a focus on the safe resolution of disputes for vulnerable families, with the increasing rate of family violence in our community prompting that focus.

There will be, for the first time in over 20 years, one single entry point, a single set of rules and forms and case management processes designed to provide a streamlined approach to family law litigation.  Whether or not that eventuates, is yet to be seen.

Chief Justice of the Family Court of Australia and the Federal Circuit Court of Australia, the Hon Will Alstergren said that for decades, people in the legal profession, and the wider community, have been calling for change and commenting that the “system” wasn’t working. “The Courts have responded to these calls for change. The Federal Circuit and Family Court of Australia will provide a completely new family law system which focuses on risk, responsiveness, and resolution. There will also be a significant focus on compliance with court orders, demonstrated by the establishment of a new National Compliance List which will also commence on 1 September 2021.”

In response to the increasingly unacceptable delays, the Chief Justice has said that we need to do things differently and the system will identify risk and safety at the very beginning of every case as a priority, where parties will be given ongoing opportunities for dispute resolution where it is safe to so, and if cases cannot be resolved, it will be listed for a trial before a judge much earlier than previously experienced.

The use of Court Registrars and Court-appointed Family Consultants will be integral to the new system to undertake the triage and case management of all matters filed. As far as possible, duty lists will be conducted by Registrars and interim hearings will be conducted by Senior Registrars which is designed to alleviate the front end case management burden on Judges and ensure that they are able to hear and determine trials and deliver judgments in the matters that require judicial attention as quickly and efficiently as possible.

The newly proposed system will see the following time frame for Court events:

  • First Court event within 6 – 8 weeks of filing
  • Mediation or dispute resolution within 5 – 6 months of filing
  • A trial within 12 months of filing

To facilitate these changes the Commonwealth Government has provided more than $100 million in new funding. The Courts have now been able to undertake an intensive recruitment drive to secure the services of highly skilled and energised family law practitioners to assist the Courts’ existing hardworking and diligent Registrars and staff. The number of Judges has also been increased to the highest-ever number of Division 2 (or Federal Circuit Court) judges and the highest number of Division 1 (or Family Court) judges since 2007.

Here at OMB Family Law, we are across all of the proposed changes to processes and procedures and will be ready, come 1 September 2021 to embrace the new way of Family Law litigation.

If you have any concerns or queries about how your matter will be managed post 1 September 2021 or discuss any family law matter, contact our Accredited Specialist lead family law team on 55550000.

vaccination

No-Fault Compensation Scheme

By | Articles, Compensation

Since COVID-19 vaccination conspiracy theories have flooded social media, political campaigns and patient advocacy groups, one question remains unanswered and that is, who is liable in the event one develops adverse side-effects from the vaccine?

Australia has a long-standing compulsion for systematic and routine vaccines that are at times a legislative requirement. These include, ‘No Jab No Pay’ and ‘No Jab No Play’ in some Australian states. While some vaccines may be mandated, Australia does not provide a no-fault injury compensation scheme for rare vaccine injuries.

No-Fault Compensation Scheme – What is it?

A no-fault vaccine compensation scheme recompenses individuals who have sustained an injury following the administrations of a certified manufactured vaccine.

Australia in contrast to its international counterparts, the USA, UK and New Zealand, does not have a no-fault vaccine compensation scheme. This means that an individual that sustains a vaccine-related injury must bear the associated costs in accessing treatment via our publicly funded health systems and will not obtain any compensation for their pain and suffering. As a result, those affected are forced to embark on a complex and expensive litigation process to seek compensation and related expenses.

Australia’s Current Position

Australia currently has a fault-based system for handling negligence claims. The process is long and arduous and can take years to be settled or decided. The issue associated with the current fault-based system is that settlement may not cover long-term costs associated with care and other expenses.

Recently, Prime Minister Scott Morrison announced a new vaccine indemnity scheme. This scheme means that health practitioners that have been found liable as a result of adverse events from administering the COVID-19 vaccines will be compensated by the Commonwealth of Australia.

It is well established that Pfizer is the vaccine of choice for under-60’s in Australia. However recently, the national cabinet stated that “GPs can continue to administer the AstraZeneca to Australians under 60 years of aged with informed consent”.

The real implementation of the indemnity scheme, therefore, is design to support allied health practitioners and reduce the real and perceived impediments in administering the AstraZeneca vaccine to the under-60’s population. It seeks to shift exposure to possible claims from existing insurers to the Commonwealth of Australia.

However, this does not negate nor prohibit patients from suing health practitioners for negligent advice in relation to the purported risks and benefits of a particular vaccine.

This falls well short of a no-fault injury compensation scheme to allow for compensation award to include income indemnities, reimbursement of medical expenses, personal assistance expenses and travelling expenses that be resultant of the vaccination injury.

Moving Forward

The current use of ‘first in human’ phase III clinical trial rollout makes it foreseeable albeit rare that a vaccine-related injury may occur. Notably, rare vaccine injury is not a new phenomenon. Guillain-Barre syndrome is another rare vaccine-related injury that is caused by the influenza vaccine.

With the current climate and public questioning the safety of the vaccine as a result of blood clots occurring from the AstraZeneca vaccine, one would think that the Australian Government ought to implement a no-fault vaccination scheme. Of course, if it is the proposition of the Government that being vaccinated is for the benefit of society, society should be safeguarded from the possible risk of a vaccine injury. It follows that the Australian Government should recompense individuals who fall victim to a vaccine-related injury.

The implementation of a no-fault vaccination scheme could increase public trust in the system rather than undermine current hesitancy and lack of confidence in the vaccine program. Hence, it would be timely that Australia now legislates and introduce a no-fault compensation scheme for all vaccinations. This is a crucial step in navigating a pathway forward from the COVID-19 pandemic.

Family Law Court Australia

Family Law Court’s Merger – Important Things to Know

By | Articles, Family Law

Whilst the majority of the legal profession was and remains staunchly opposed to the merger of the Family Court and Federal Circuit Court, the reality is that it will be upon us soon and we must adjust to the new systems in place. It is important also that our clients know the changes that are soon to occur in the system that they may be litigating in, or considering entering.

With thanks to Jacky Campbell at Forte Family Lawyers (published via www.cch.com.au) here are the ten most important things to know about the merger:

  1. The Court will now be known as The Federal Circuit Court and Family Court of Australia.
  2. The new Court will commence operation on 1 September 2021.
  3. There will only be one Court, but there will be two divisions of that Court. What is currently known as the Family Court of Australia, will become the Federal Circuit Court and Family Court of Australia (Division 1).  The Federal Circuit Court of Australia will become the Federal Circuit Court and Family Court of Australia (Division 2).
  4. All proceedings will be commenced in Division 2. All appeals will be filed in Division 1.
  5. Division 2 will also hear general federal law matters as well as Family law.
  6. Whilst all Appeals will be heard in Division 1, the Chief Justice can also direct that a matter be transferred from Division 2 to Division 1 in particular circumstances.
  7. There is no appeal from the decision of the Chief Justice to transfer or refuse to transfer a matter from Division 2 to Division 1.
  8. There will be new Rules of Court to abide by.
  9. The Federal Government has indicated that there will be 35 specialist Judges in Division 1 and 43 in Division 2 (nationwide).
  10. There is a diversity of view on whether or not this new system will be better than our current one. Most of us agree that the new court won’t be better unless the Government provides it with more resources.

To a greater or lesser extent, we are very much in wait and see mode.  Watch this space.

sharing pets

Every Dog has its Day – Dogs, Definitions and Decisions on Shared Care

By | Articles, Family Law

In 2021 Australia, pets are without doubt an integral part of the majority of families. With the decision to defer having children until later in life or not at all, couples after separation are often faced with the decision about who gets “custody” of the dog (or cat or both!).

If parties can reach a private arrangement about what happens with the family pet, then that is one thing, but what happens when you can’t?

In a recently published decision of the Federal Circuit Court of Australia in Brisbane, Her Honour Judge Turner has looked carefully at the capacity of the family law courts to determine disputes, on an interim basis about the “custody” of pet dogs.

On 10 February 2021, the Court published Davenport & Davenport (No.2) [2020] FCCA 2766 (8 October 2020) (austlii.edu.au) in which the Court was tasked with deciding a self-represented Husband’s application for an interim “shared custody” arrangement for a dog.

For reasons that we will explore, Her Honour decided there was no jurisdiction to make any such Order.

After a short relationship, during which no children were born, the Wife made an Application for property adjustment Orders under s79 of the Family Law Act.  These types of applications fall within the definition of “matrimonial cause” under s4 of the Family Law Act which defines a ‘matrimonial cause” as

Proceedings between the parties to a marriage with respect to the property of the parties to the  marriage or either of them, being proceedings (i) arising out of the marital relationship.

The wife, on a final basis, sought to retain possession of the dog, conveniently referred to “D”.  There was a dispute between the parties regarding who paid for him etc but that was a matter for a final decision.

Dogs have long been treated by the family law courts as “personal property” which is defined in the Butterworths Legal Dictionary as “all forms of property other than real property; that is all forms of property other than land and interests in land (excluding leaseholds).  Personal property is traditionally divided into two classes: chattels real and chattels personal. A “chattel” is a movable possession and can be considered something capable of being the subject of action possession (a “chose” in possession”) or something that cannot be physically possessed but recoverable by a course of action (“a chose in action).

Importantly, as the Wife sought Orders on a final basis regarding possession of the dog, the Court confirmed that it had jurisdiction to hear that final application, but the Husband’s application was an interim one, which brought with it different considerations.  The Court considered that the interim application was not one for the adjustment of property interests and did not therefore fall within Part VIIII of the Family Law Act.  The Court further relied upon the decision (one of many!) in Strahan and Strahan (interim property orders) within which the Court determined that there must be jurisdiction to make interim property orders before they could be considered.

The Husband did not assist the Court in providing any authority or legislation which addressed whether the Court had jurisdiction to deal with “shared custody” of “D” the dog. The Family Law Act previously referred to “custody” however it pertained to children, the definition of which, obviously does not include dogs.  The Application therefore did not fall within the category of interim parenting decisions, which the Court could have entertained.

The Court relied upon the authority of Gaynor & Tseh [2018] FamCA 164 when confirming that the Court had no jurisdiction to make the Orders sought by the Husband.  In that authority the Court stated:

Th Family Law Act makes no reference to pets.  It was conceded by the applicant that a dog does not fit within any other category of property than a chattel. Hard as that may be for the applicant, and perhaps other dog lovers to accept, the law here concerns the alteration of interests in property. Most significantly, the issue is the question of the alteration of a property interest on an interim basis.

Whilst sympathizing with the Husband and dismissing his application for want of jurisdiction, Her Honour concluded by saying:

The Court is aware that for many people pets are regarded as members of the family however there is no provision under the Family Law Act and no specific legislation that deals with issues such as the “custody” of a pet whether that be a dog, cat, bird, lizard, fish or any of the wonderful creates that we share the planet with that would empower the court to make orders for shared custody of a pet.

The case highlights further why reaching an agreement (which can include matters which otherwise the Court may not permit) is the best outcome for all concerned, including your dog! Contact Gold Coast family lawyer for your free preliminary discussion about your family law issues (pet-related or otherwise).

Telehealth

COVID-19 and the Effect on Workers Compensation and Personal Injury Litigation

By | Articles, Compensation, Insurance

Covid-19 has had a significant effect on our global situation and the way in which we are required to adapt to what is now considered a new normal way of life. Specifically, in the legal sphere of workers compensation and personal injury litigation; employers, insurers and lawyers are faced with the challenge of arranging independent medical examinations’ (“IME“) with social distancing measures and government health directives affecting how they proceed.

However, one takeaway from the COVID-19 crisis is the opportunity of finding newfound solutions and creative services to deliver safe and defendable mechanisms to assist injured or ill people return to work and/or functioning capacity. As such, telehealth (albeit by video conference or by telephone) for IME’s has become an essential development to ensure the continuing progress of litigation during the current pandemic.

What is telehealth?

Telehealth is one of the many terms used to describe the application of technology to provide non-face-to-face contact with patients. Other terms include “telemedicine” and “e-health”. Telehealth services include, but are not limited to, remote doctor and other specialists, psychologists, occupational therapists and patient consultation via video link or telephone. Telehealth is not just a technological advancement. It is the solution to assist workflow and also patients to be assessed at in the comfort of their own home.

Recent Case Decision

A recent decision in the Supreme Court of Rockhampton, Tyndall v Kestral Coast Pty Ltd [2020] QSC 56, dealt with whether the request for IME both by a rheumatologist and vascular surgeon via telehealth was unnecessary.

Crow J ordered that “in the event that the Plaintiff is unable to personally attend the examination due to COIVID-19 travel restrictions, the assessment is to be undertaken by video conference and the plaintiff is to submit to any pathology as requested by the [specialist]”. This demonstrates the Courts willingness to adapt and work with social distancing restrictions.

Paradigm shift

The Australian Government has introduced temporary telehealth services to the Medicare Benefits Schedule (MBS). This is separated into three categories, namely face-to-face, video-conferencing, and tele-conferencing when videoconferencing is not an available means of service. Allied health services have experienced a significant influx in the demand for the MBS telehealth consultation, of which half of these consultation were conducted via videoconferencing. Evidenced by the recent decision and move with telehealth in general, it seems that post-pandemic, telehealth may well be here to stay and will continue its advancement to facilitate the new norm for clinicians and patients alike.

How Telehealth Works

There are many ways in which IME’s can take place.

  1. Interview Based
    .
    This takes place either via telephone or video conferencing. This may be conducted for either psychiatric or physical assessment. This includes a preliminary review of medical records as provided and the conduction of an appointment style examination.
  1. Interview based with supporting Allied Health provider under supervision and direction of specialist
    .
    Like an interview-based appointment, however, in this circumstance an allied health worker is physically present with the ‘patient’ during the examination and under the direction of the specialist conducting the physical examination.
  1. Unsupported physical examination whereby the specialist conducts the examination
    .
    Again, similar to the above, though in this circumstance there is no one physically present. The specialist in this circumstance make visual observation and guides the ‘patient ‘ to undertake movements for virtual assessment of tenderness, gait and other necessary observations that are required to be addressed to determine a claim, required payment (from insurer), resolve the particular dispute and or support the claimant back to work / functioning capacity.

OMB Goal Coast solicitors work closely with health care providers to ensure that you are the centre of care and your workers compensation claim or personal injury matter is a smooth experience. We here at OMB Solicitors will ensure that you are provided with the best available treatment providers and, if needed, your independent medical assessment is conducted within the comfort of your own home.

For more advice, please contact a member of the OMB Insurance team to speak with one of our friendly staff and discuss how we may be able to assist you with Family Lawyers Gold Coast.

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