Building Defects, Death and Dying

On Death & Dying (grief)

The Swiss American psychiatrist Dr. Elisabeth Kubler Ross in her landmark 1969 work “On Death and Dying” described the five steps people go through when they are told they have a terminal disease and are about to die. The five steps are: denial, anger, bargaining, depression and acceptance.

People who have bought an apartment with building defects go through a similar range of emotions and it’s important for strata managers and body corporate members to be able to identify them.

Denial – if we can put people on the moon and feed billions of people, how is it possible that the apartment I paid $600,000 for …….. leaks!!!  It can’t be possible and yet it still leaks every time it rains. This stage is a short one.

Anger – some people just like being angry. And it can last for years. Strata managers are particularly familiar with this stage as they are the first to be called when there’s a problem. After a while this anger is transferred to the builder, developer, government and anyone else who might be remotely connected to the building.

Bargaining – here the owner negotiates about how they’ll deal with the defect. “I’ll deal with it after my exam, overseas holiday, cosmetic surgery or [whatever other excuse they can find]” or “This is the problem of my strata manager, building manager, local member, Office of Fair Trading and [anyone else but me], they should deal with it.”

Depression – it’s all too hard. The builder has come back dozens of times, there’s more silicon in the roof than in 100 Dolly Partons and the roof still leaks. There’s nothing that can be done except give up.

Acceptance – This is the revelation that the defects won’t fix themselves, I’m the person responsible for the building and I need to deal with it. It’s only at this point that things begin to move in a constructive direction.

And different people move through the stages at different speeds. In my experience, owners who have a commercial or business background are able to get to acceptance more quickly than others. It is up to them as well as strata managers to understand what stages the owners are going through and to help them through the stages. This is important as the more owners reach acceptance, the more likely:

(a) they act in a constructive and co-ordinated way;

(b) consequential damage to lot and common property is minimised;

(c) key limitations periods associated with insurance policies and litigation are not missed; and

(d) the defects get addressed in an appropriate way.

Phoenix Companies, River Phoenix and Government Inaction


In Greek mythology, a phoenix is a long-lived bird that is cyclically regenerated or reborn.  Associated with the sun, a phoenix obtains new life by rising from the ashes of its predecessor. Mmmmm. That’s a bit boring. Let’s start again.

TISM’s (This Is Serious Mum) 1995 anthem “I’m on the drug that killed River Phoenix” is actually a scathing indictment on many people’s addiction to vicariously following celebrities and their excesses and premature deaths. As with a number of TISM songs, it is a comment on the fairly vapid state of popular culture. This really has nothing to do with phoenix companies but I thought I’d work it in anyway due to the very tenuous connection between the name River Phoenix and Phoenix companies.

In my experience, I have seen a lot of builders engage in phoenix company activity and its evil twin, company name swapping (where the name of a company is changed and another company is incorporated with a name identical to the former name of the first company)

The relevant legislation that the Commonwealth Parliament has finally put forward to begin to address phoenix company activity is the Corporations Amendment (Phoenixing and Other Measures) Bill 2012.

The Phoenixing and Other Measures Bill, which was passed in May 2012, gives ASIC power to order the winding up of a company when, among other reasons, it appears to ASIC that the company is no longer carrying on its business.  This could be used in relation to name swapping but in reality is a pretty tame piece of legislation.

On the other hand, the Corporations Amendment (Similar Names) Bill 2012, which has some real teeth by seeking to impose liability on a director for debts incurred by a company (the debtor company) when that director was also the director of a ‘failed company’ with the same or a similar name as the debtor company, is still in limbo. Well, it’s really not in limbo. Rather it was drafted but never even introduced into Parliament. Indeed, given it was a bill originally drafted under a Labor Government, I think we can be pretty confident this Bill will not be introduced into Parliament anytime soon.

So, there’s still some work to be done on this front and the ultimate and final death of the phoenix is yet to occur.  But if the Commonwealth starts taking phoenixing activity seriously, we’ll be ready to fry that bird ….

DIY Property Development


From the country that gave you the Volkswagen (Volk – people, Wagen – car), the people’s car, now comes the latest idea for the people.

Do it yourself property development.

In Kreuzberg, a trendy suburb in Berlin, a community has bandied together to develop a large apartment complex that is designed to precisely meet their needs.

The homeowners collaborated with the developer and consultants and all decisions from planning, to building standards, to the location of communal rooms and the layout of the balconies were made jointly. That is, all decisions were made according to the desires of the homeowners as a whole.

An innovator in the car industry has now become an innovator in the property development industry.  How long will it take until a smart developer grabs this idea and runs with it in Australia?

See the link below for more information

Goldilocks and the Three Rectification Orders



In a land far, far away there once lived a little girl called Goldilocks.

Now Goldilocks lived in an apartment full of defects and every time it rained, water used to come in from the balcony until one day Goldilocks finally contracted a dust disease from inhaling mould spores.When coming back from the hospital and a double lung transplant, Goldilocks decided to take a short cut through the forest to get home quickly.

Many people believed that the forest was a foreboding and dangerous place, but Goldilocks knew that this was an irrational fear based on cultural paradigms instilled by a patriarchal society that regarded the natural world as an exploitable resource, and hence believed that natural predators were in fact intolerable competitors.  Other people avoided the woods for fear of thieves and deviants, but Goldilocks felt that in a truly classless society all marginalised peoples would be able to “come out” of the woods and be accepted as valid lifestyle role models.

So, while walking through the forest, she stumbled upon a house and walked in to see three bowls of porridge which were labelled ‘ACT rectification order’, ‘Queensland direction to rectify’ and ‘NSW rectification order.’

She sat down and tested the bowl entitled ‘NSW rectification order’ and exclaimed ‘This one is far too weak!’  She then tasted the Queensland direction to rectify and exclaimed ‘The cook didn’t follow the recipe!’  She then came to the last bowl labelled ‘ACT rectification order’, tasted it and said ‘This is just right although I think it would have been slow to make.’

If you were the Victorian minister in charge of implementing a new regime of rectification orders for Victoria (which has not had any rectifications orders except against plumbers for defective plumbing work), what would be the moral of the story?

We are expert cooks on rectification orders.  If you want one whipped up, ring us now. Here’s one we made earlier …


QBCC and the Decline of Western Civilisation


In the 12th episode of Kenneth Clark’s epic television series Civilisation, Clark argues that the French Revolution led to the dictatorship of Napoleon and the dreary bureaucracies of the 19th century.

It would seem that in 21st century Queensland, dreary bureaucracies are alive and well. Some might even say thriving. I know this from personal experience.

Having made extensive and considered submissions to the QBCC for the issue of a direction to rectify building defects which were designed to make the exercise of QBCC’s discretion easier, I was stunned to learn that the only response QBCC had was that I had not filled in the proper form. When I pointed out that such a form might be an adequate way of dealing with a defective driveway but was in no way appropriate for extensive and complex defects in a large body corporate, it was as if I was talking to a brick wall. Knowing that resistance was futile, I obediently filled in the correct form.

The trouble was these submissions also contained a complaint against the building certifier which would hopefully lead to the QBCC applying to QCAT for disciplinary proceedings and QCAT ordering that the building defects be rectified at the cost of the building certifier.

Notwithstanding my multiple references to two complaints in previous telephone conversations with the QBCC, when I followed up on progress on this particular complaint, there was no acknowledgement of the existence of such a complaint but rather, I was informed that a different form was required for this complaint.

It then became abundantly clear that the QBCC’s ability to read is restricted to only words appearing on forms produced by the QBCC.

This extraordinary and unhealthy obsession with process brought to mind a description of the fictional alien race from the Hitchhiker’s Guide to the Galaxy known as Vogons, one of the most unpleasant races in the Galaxy:

“Not actually evil, but bad-tempered, bureaucratic, officious and callous. They wouldn’t even lift a finger to save their own groundmothers from the Ravenous Bugblatter Beast of Traal without orders – signed in triplicate, sent in, sent back, queried, lost, found, subjected to public enquiry, lost again, and finally buried in soft peat for three months and recycled as firelighters.”

Luckily, body corporates have administrative law remedies against QBCC when things go pear shaped.

And who you gonna call?

Victoria and the Zombie Apocalypse: The Place to Be?


People often ask me how I survive the bitter cut and thrust of office politics and still have time to put out my blog. To tell the truth, there’s not a lot of action around the TEYS Lawyers water cooler. That’s mainly because we don’t have one.

However, as in every workplace, there can be subtle and hidden tensions. For example, one thing on which Michael Teys and I do not see eye to eye is the imminence of the Zombie Apocalypse. We tiptoe around the topic but I intuit that he believes that it is not very realistic and it’s just not gonna happen, ever, period.

I suppose Victorians probably thought the possibility of systemic corruption in the system of builder registration was the same – it is not very realistic and it just doesn’t happen, ever, period.

However, just over a year ago, Melbournians awoke to the following headline on the front page of The Age: “Warning on thousands of buildings”.

The ruckus arose from a report by the Victorian Ombudsman being tabled in the Victorian Parliament which found, amongst other things, that builders who had failed competency assessments were granted registration and others were approved despite not having sat any tests at all. There was also evidence of an “industry” where third parties would illegally complete required paperwork on behalf of applicants in return for a fee.

The Ombudsman called for an investigation into all building registrations approved by a former long-serving Builders Practitioners Board registrar, Mr Peter Brilliant, who personally approved hundreds – possibly thousands – of licences between 1998 and 2012. Ah yes, just what Victorian apartment owners needed, a joker in the pack of allied building professionals.

So, in response the Victorian Building Commission (now known as the Victorian Building Authority) accepted this recommendation by the Ombudsman and begun this investigation.

It is now late February 2014 and the apartment owners of Victoria are not any closer to knowing if their apartment block was built by a builder who shouldn’t have been licensed. The question is, how long will this investigation take? I suspect it will only be complete after the next state election which is due this year.

As Bernard Woolley remarked in Yes, Minister “Two kinds of government correspond with the two kinds of minister: one sort folds up instantly and the other sort goes round and round in circles.”

NSW: Dysfunctional Since 1788


The history of NSW is littered with examples of governance which is anything but world class.

Beginning with The New South Wales Corps (aka The Rum Corps) which was formed in England in 1789 as a body of troops who were to look after law enforcement in New South Wales. As the young colony was short of coins, rum soon became the medium of trade. The Rum Corps earned its moniker by being able to use their position and wealth to buy all the imported rum and then exchange it for goods and labour at very favourable rates.

Such problems with governance have regularly surfaced in New South Wales over the years. The aftermath of the Wood Royal Commission into the NSW Police Service, for example, meant that the NSW Police were no longer the best money could buy.

But what of the development industry? Surely that’s different?

Well, Gong Gate, the Independent Commission Against Corruption’s phone tap evidence exposing bribery at Wollongong City Council showed that developer slush funding of political parties has been a contentious issues in state politics for many years now.

Following Gong Gate, from 2010 property developers were banned from making political donations in NSW. However, this didn’t stop cheques being written at a Liberal Party fundraiser in April 2012.

And for those of you in other states sniggering and saying well, what else would you expect in NSW, you may find you have the same problems …