The South Australian Building Work Contractors Act 1995 has always been a curious piece of legislation. By section 32, it sets up some statutory warranties which apply to domestic (i.e. residential) building work. These statutory warranties are very much in the same vein as the warranties which would in any event be implied as a matter of common law. Then, by section 37, it sets up some quite wide statutory powers, whereby the Magistrates Court can do various things, including ordering the builder to perform remedial work (a surprising power, since the law has for a long time set its face against granting injunctions for this purpose, since such injunctions are notoriously in spawning further disputes) and making an order for compensation where there has been a breach by the builder of the section 32 statutory warranties. It also confers a power on the Magistrates Court flowing in the other direction: to require payment of an amount due under a domestic building contract. Note the numbers: 32 is the warranties and 37 is the powers.

Anomalously, these powers are vested in the Magistrates Court regardless of the amount in dispute. It seems pretty clear that Continue reading →