Your preferred office location:
  1. Home
  2. /
  3. HHG Articles
  4. /
  5. HHG Construction Law Series Part 12.3 (Warranties): How the Law Deals with Defects Outside of Warranties
15 Sep 2016

This is the third and final article in our series on warranties in construction contracts. So far, we have looked at two essential but often overlooked features of product or workmanship warranties, being:


(a)    their nature as contractually binding promises; and


(b)   their risk-shifting function.


In this third and final part of our series on warranties, we consider other ways in which the law deals with claims by owners and head contractors for the losses suffered by defects in the workmanship and/or materials supplied by construction contractors.


First, there is the duty implied by law in all construction contracts to perform construction works to a proper and workmanlike standard.  Construction works which fall below this standard will be treated as a breach of the construction contract and dealt with in a way that is similar to breaches of warranty.


There is also the general law of negligence that imposes a duty on suppliers of workmanship and materials.  That duty is to ensure that the labour and material that is supplied at each stage in the contracting and supply chains does not cause reasonably foreseeable personal injury, property damage, or, in most construction-related cases (with some limited exceptions), financial losses.


Where the defects are hidden from view, these duties may still be owed after (sometimes, a long time after), the warranty period in relation to the same defects has expired.  Also, since this duty applies universally (with certain limited exceptions that only rarely apply in  a construction context), a properly formulated case in negligence may in appropriate cases leave less room for argument about where the duty starts and ends and whether it applies to the specific defects in question.


There is, in addition, a range of statutory duties that apply to those who supply labour and materials outside of an employment context (as construction contractors do).  Some of these statutory duties apply specifically to construction works (or even more specifically to home building works) whilst others apply generally to consumer supplies (or even more generally to supplies of goods and services for a price).  Depending on the circumstances of the relevant supply, these statutory duties may, in a construction context, include:


          the duty to perform home building works in a proper and proficient manner (which is virtually the same as the duty of proper and workmanlike performance implied by law into construction contracts but may be subject to different limitation periods and in some cases, different remedies); and


          the duty  to supply materials that are fit for sale (or “merchantable”), fit and safe to be used for their intended purpose and having the same quality and features as any  sample shown to the buyer or description given to the buyer, before the sale.


These duties may correspond or partially overlap, in their scope and content, with the contractual and general law remedies.  However, there may also be differences in how long you have to enforce your rights or the remedies that are available to you for breaches of these duties.  For example, you may have both a general law and a statutory right to be compensated for a latent (hidden) defect that you did not discover until the warranty period ended, but to be compensated for it under the general law, you would have to prove that the defect was caused by the builder’s negligent failure to take reasonable care in carrying out the defective works, whereas to recover under the statute you would only need to prove that the works were (for whatever reason) defective.


The  point is that your rights and obligations are not confined to the terms of any product or workmanship warranty, the law in this area is not “one size fits all”, and even long after a builder’s or manufacturer’s warranty has expired, you may still have other enforceable legal rights available to you.


HHG Legal Group’s construction law and commercial litigation lawyers have the skill and expertise to advise contractors and suppliers about their rights and obligations under builders’ and manufacturers’ warranties and the best ways to deal with claims for faulty or defective workmanship or material supplies. 


This is general information only, and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters please contact Daniel Morris or Murray Thornhill Freecall 1800 609 945 or email us now. 

*This is general information only, and does not constitute specific legal advice. Please consult one of our experienced Legal Team for specific advice relevant to your situation.

Supporting Western Australians for more than 100 years

"Always fast and thorough service. Thank you"

Sitka Pil

"My circumstances at the time I made contact with HHG were dire following my argument being rejected by two no win no fee firms. Following my initial meeting with HHG's employment law team I was left feeling extremely positive by the response and concern shown by HHG in regards to their support of my argument along with their preparedness to pursue an outcome on my behalf.

I accept the fact that nobody really wins in these cases (mental health/ workplace) however the end result was what would be considered most favourable and far in excess of what would have been achieved had I not sought the advice from HHG.

I have no hesitation in recommending HHG to anyone caught up in the messy circumstances I found myself in at the time.

Great advice and five-star commitment to their client!!"

Nathan Lynch

"Thank you for such great assistance with the transaction of Flying Domestics on behalf of Lorna Good. It has been such a pleasure to work with the HHG Legal Group and I look forward to working with you in the future."

Jim Goodwin

"Simon Creek and his team were at all times empathic, professional and confident.  My matter needed to be addressed within a pressing time frame, and their availability at short notice and contact after hours was much appreciated.  It caused me considerable stress, but having such a thoroughly reliable and competent team to call on helped me to feel in control. Although I hope not to need their services again in future, I would be confident in doing so!"

Dr Lana Bell

"A good outcome is what we can expect.  A great outcome is a sign of a company which does the very best for their clients. A very big thank you to Daniel Morris for showing empathy towards my small and much needed legal action.

To HHG Legal Group, thank you for a great outcome.  I would recommend your company to anyone seeking legal services."

Jan Atkinson

"Your support this morning was amazingly kind, not to mention your totally reassuring competence, knowledge and wisdom that you used on my behalf.  It was extremely reassuring to have your knowledgeable support, and I particularly appreciated your real and obvious kindness to me. It means so much at a very difficult time. I'm so grateful to you."

Family Law Client

"Janene was very professional and we established a good rapport quickly. The subject of death and wills can be quite confronting to deal with, however, Janene's approach was soft and accommodating."

Lynette Livesey

"A big thank you to HHG for their professional service, continued support, and wide range of legal knowledge. Our clients have given us nothing but kind words regarding HHG Legal Group and so we have no hesitation in referring and recommending Simon Creek and HHG Legal Group for their outstanding services and legal expertise."

Nigel Plowman, Director at Mckinley Plowman & Associates

"Simon is a friendly and practical legal advisor. I have received great feedback from the clients I have referred to him and his team at HHG Legal Group."

Richard Beal, Director at BDO

"Over the last few years, I have been impressed by Simon’s legal ability, management skills, entrepreneurial spirit, personal integrity and people skills. He appears to be that rare breed of lawyer – both knowledgeable and commercial."

Michael Malone, Founder of iiNet

"Our family has been a client of HHG Legal Group over many years.  Business has included drawing up of wills for three generations and preparing of probate for my father in law. I would have no hesitation in recommending HHG Legal Group to anyone requiring such services."

Bernice Climie

"You should be congratulated for the manner in which your staff address clients and we found our dealings with your company, once again a very pleasant experience and we would like to truly thank you for your efforts."

Steve Harvey and Jane Powell

"HHG Legal were absolutely fantastic. Extremely responsive and brought calm to our chaotic family situation through their knowledge and caring attitude. Extremely professional from our very first contact with them and they expertly guided our family though the required legal process over almost a 12 month period."

Amanda Williamson

"Fantastic team! They really care about their client. Tim Colcutt is a 'go that extra mile' guy who gives his client his all. I can't recommend HHG and Tim enough."

Kerry Samson

"I had a fantastic lawyer in Matthew Lilly. He helped me out a great deal with good, sound advice in a friendly, professional manner. First class, thanks Matthew"

Graeme Hammond

"Marine Plant Systems has been working with HHG Legal Group for a few years now and they continually provide first-class service. Their professional advice has been invaluable to our company."

Carolin Grimm - Marine Plant Systems

"We were kept up to date at all times. Pricing was always updated over the time period so we remained "in budget". Personal access to someone whenever I had questions. All in all a great experience without too much fuss."

Rosslyn Tasker - COO Altusq Pty Ltd

"Good service you can count on."

Miles Lee

"HHG Legal Group has provided outstanding support as I have taken the journey of buying a business, their professionalism is beyond reproach. Their assistance throughout the Due Diligence process has been invaluable, I would fully recommend them."

Mark Armitage

"Very friendly and efficient service - what a pleasure working with Matthew."

Jacques Taylor

"I highly recommend Daniel from HHG Lawyer in Mandurah. When dealing with a complicated legal property matter recently I was extremely impressed by Daniel's honesty and integrity and the legal advice I received. I am very happy with the service from HHG Legal."

Tony Walker

"Lisa, thank you so much for representing me in court, honestly, I would not have had the outcome I got without you. Once again, Thank you so much."


"Matthew Lilly was excellent in processing our project. He achieved the excellent result that we required on our project.

We would give Matthew a 5 star rating.

We will definitely commission Matthew for any further projects if we have the need."


"I have had the pleasure of being represented by Ms Lisa Riley. Lisa helped me in December 2020 when I was charged. Lisa was extremely supportive, reassuring, and preserved with her investigation of the laws and was able to save me from a terrible outcome. Another incident occurred in August 2021 in which I sought Lisa’s help. Lisa preserved and was very patient with me. This only got resolved this year. When she advised me that she was leaving her old firm, I insisted that she remain my lawyer, as I had the utmost faith in her. Hence I moved over to HHG. Lisa took no shortcuts in my defence and continued to preserve for the toxicology report that ultimately saved me. She kept me up-to-date with the progress and provided support. Having someone as understanding as Lisa was a huge gift, to me and my family. You have gained a huge asset in Lisa joining your firm.

Thank you, Lisa, forever grateful for your work, and if ever needed, I will be sure to refer to you"


"We can highly recommend HHG Legal Group and particularly Mr Blair Campbell (Special Counsel / Dispute Resolution)

Blair worked with us as we navigated a very difficult third party dispute.

Blair’s expertise, wisdom, and the way he guided us in a very measured and calm manner gave us great encouragement and comfort. Blair helped us to focus on what we needed to and to trust the process.

Blair was always responsive to us, he always got back to us very promptly to answer our questions and to help us to step through some really hard days.

We are very grateful for Blair’s expertise and wisdom along with his empathy and care, this truly made the difference for us."

Wayne and Janice Belcher

Preferred office location:

Please select your nearest office location so we can show you the most relevant information.