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Opportunity to Rectify and Mitigation of Loss

Opportunity to Rectify…

Those working in the building and construction industry will be familiar with the concept of providing an opportunity to rectify defects. Whether you are a principal, homeowner, head contractor or subcontractor, it’s relevant to all levels.

Why should I provide the contractor the opportunity to rectify defective works?

It comes down to a duty to mitigate loss. For example, if works remain defective post practical completion the principal, homeowner, or head contractor depending on the terms of the contract, may be entitled to engage others to rectify the alleged defects. They may then seek to claim damages against the contractor it had engaged who carried out the alleged defective work.

However, it is generally a good idea to provide the contractor with an opportunity to rectify before engaging a third party to undertake the remedial work. Otherwise, the potential claim for damages may be affected by a failure to mitigate loss.

There are circumstances where the principal, homeowner or contractor would not be failing their duty to mitigate loss by not providing an opportunity to rectify. This is determined based on the facts of each case and the terms of the relevant contract.

Defects

Caught in a dispute regarding defective workmanship and need assistance?

If you are involved in a dispute and / or need legal advice about this topic, contact us at Klein Legal today. Klein Legal are dispute resolution and litigation experts.

This is general information only and does not constitute legal advice.

If you or someone you know wants more information or needs help or advice about this topic, please contact us on (07) 5458 6855 or email mklein@kleinlegal.com.au.