PAINTING and DECORATING DISPUTES

Painting and decorating disputes regularly feature in matters dealt with by the Building Disputes Tribunal.

Painting and decorating adds the final touches to any new home or renovation. The work is generally the last to be undertaken on any project, it is almost always undertaken over surfaces prepared/supplied by other trades, and painters are expected to ‘make good’ every defect and blemish in the substrate. An added difficulty is that painters will seldom have exclusive possession and control of the work site and will often be required to work in sub-optimum conditions with other trades working around and over them creating dust and damaging finished surfaces.

On the other hand, some painting contractors lack the necessary skills and/or fail to have adequate quality assurance processes in place to ensure they achieve the agreed/specified finish, and/or to complete their work by the due date for completion.

In the circumstances, it is little wonder that painting disputes are commonplace. Whether you are a home owner, principal, contractor or subcontractor, the Building Disputes Tribunal can assist with the resolution of your dispute.

You can use any of our dispute resolution processes to resolve your dispute, however, adjudication under the Construction Contracts Act 2002 is typically the dispute resolution process of choice.

What types of disputes arise in adjudications?

Default liability

The Construction Contracts Act 2002 provides for a regime under which a payee (the contractor who is seeking payment) can issue its invoice in the form of a payment claim which requires the payer (the person or company who has engaged the contractor to provide services) to respond with either payment in full or a payment schedule which meets the requirements of the Act.

If the payer fails to pay or issue a valid payment schedule, the payee is entitled to initiate an adjudication claim for payment in full on the basis of default liability. If the payee can establish that it has issued a valid payment claim and no valid payment schedule has been provided in response, an adjudicator must determine the matter in the payee's favour and payment must be made within two working days of receipt of the adjudicator's determination.

A default liability claim can only be brought by the payee not a payer.

Claim on the Merits

A claim on the merits may be brought as an alternative to a default liability claim or on a standalone basis.

If you are a respondent to a default liability claim, you may also wish to consider initiating your own adjudication on the merits.

Disputes on the merits are adjudication claims which consider the substantive rights and obligations of the parties in terms of the construction contract that governs their relationship, or in the case of a contract with a residential occupier, the statutory warranties that are implied into every residential building contract under s362I of the Building Act regardless of whether there is a written building contract. Typical merits based painting disputes include disputes in relation to:

  • non-payment for work undertaken;
  • contract interpretation – what the parties actually agreed;
  • scope of work;
  • quality of work;
  • quality of materials;
  • time for completion;
  • payment – the value of the work undertaken in the absence of express agreement as to price;
  • estimates v actual cost;
  • variations – whether certain work is in fact a variation to the agreed scope of work and the value of that varied work;
  • defective work;
  • scope and cost of rectification work;
  • repudiation/cancellation of the contract; and
  • damages for breach of contract.