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What is a contractor’s right to rectify defects?

08 March 2013

When defects are identified in building projects the employer may decide to bring in a third-party contractor to rectify the mistakes.

However, this may result in the employer being unable to recover any expenditure unless this is done correctly.

Contractor’s rights

If contractors are hired to carry out building works it is vital that the terms of a contract are carefully considered when determining whether or not the contractor has a right to return to the site. Even in the absence of a contract, the employer should take care before instructing a third party to remedy any defects and will need to demonstrate to the court that he has acted reasonably to mitigate any loss.

Woodlands Oak Ltd v Conwell

This was highlighted by the case of Woodlands Oak Ltd v Conwell. The building work was covered by a verbal agreement. When he finished the contractor asked if there were any snagging items that he needed return to the site to put right. As the employer had concerns, he did not allow the contractor back to carry out those works and instead hired a third party to finish the job. The employer did not pay the contractor for his final account so the contractor sued for the outstanding amount. The employer counterclaimed for the cost of the snagging works.

Court of Appeal

The case went to the Court of Appeal which upheld the decision that the contractor had no right to return to the site to rectify the defects, but that the employer had failed to take reasonable steps to mitigate his loss. The court made it clear that if the employer had notified the contractor of the defects, the contractor would have fixed them at no extra cost. As the employer had simply passed the matter to a third-party contractor, he had acted unreasonably and could not recover any money in his counterclaim against the contractor.

For clear advice about disputes please contact our property litigation team.

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Nick Cox LLB (Hons)
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