04 Apr Urban Myths and Half Truths
Just how long have you got to make a claim against your plumber’s warranty insurer? And why you should be extremely careful about any legal advice you get.
It’s become pretty obvious to the team at Metropolis that very few people know what significant consumer rights exist for making claims against plumbers in Victoria concerning defective work and any damage arising from that work. Unfortunately people are being given supposed advice that is nothing more than an urban myth or at best only a half truth.
We have recently seen some shocking examples where unknowing consumers have been grossly misled by the wrong information and have lost out as a result. In some cases they have lost out to the tune of hundreds of thousands of dollars.
This includes one case where the property owner was advised verbally and then in writing by a very senior official of the Plumbing Industry Commission (now the VBA) that they had no rights to make a claim on the plumber after the expiry of 6 years from the plumbing work being completed; trouble is that information was a complete urban myth and entirely wrong. What’s even more concerning about this case is that the VBA actually has no role in any insurance claims or civil litigation against plumbers anyway, yet here was one of its officers providing authoritative advice about something they had no knowledge about, nor any right to be providing advice on. Given it came on official Government Department letterhead and from the industry regulator for plumbers, it’s no wonder the property owner accepted what they were told at the time, but as a direct result, the property owner didn’t find out what their rights actually were until more than 10 years after the work was finished – by which time it was absolutely too late to make a claim (as discussed below). They have now been left with a massive repair bill for their building, all of which should have been paid for by the consumer protection insurance of the plumber, or the plumber himself, if a claim had only been made in time.
In another case a client sought legal advice from a large CBD legal firm which cost her over $1,500 and was told she effectively had no useful rights to pursue the plumber anyway; this is an example of a half-truth. And in another, the client engaged another large CBD legal firm only to be led a merry chase for 2 years pursuing the wrong parties and getting nowhere with their claim while paying the lawyers bills all the way for what turned out to be useless advice – again an example of a half-truth.
We have written in other previous blogs what some of the extensive rights are for consumers who become the victims of defective plumbing work in Victoria so we recommend you read those for more information on that front. What’s really concerning though is that you would expect a range of supposed experts to be right across all of this like the proverbial rash – but they just aren’t.
As another example of a half-truth, some people including some lawyers also think that the Statute of Limitations (set in the Limitation of Actions Act 1958) only allows up to 6 years for any claim to be brought against a plumber, but they forget there are some key exceptions to nearly everything. Plumbing being one of them.
So what’s the story?
First off, there’s 10 years to make any claim against a plumber in Victoria. Section 134A of the Building Act 1993 sets the scene very clearly. The specific wording is:
“Despite anything to the contrary in the Limitation of Actions Act 1958 or in any other Act or law, if a compliance certificate is issued in respect of plumbing work under Part 12A, an action (including a counter-claim) for damages for loss or damage arising out of or concerning any defects in the work cannot be brought more than 10 years after the date of issue of the certificate”.
Secondly, all consumers of plumbing services in Victoria have significant, Australian best consumer protection rights, far in excess of those conveyed by other legislation including the much vaunted Australian Consumer Law (ACL). Those rights come from the Licenced Plumbers General Insurance Order 2002 (“the Order”). Again check out our previous blogs on this.
The fundamental and really quite startling problem we see again and again is that nearly all lawyers know absolutely nothing about the Order, so people just don’t get the advice they pay for. When the lawyers then go and seek expert advice from barristers hoping the barrister will know the answers instead, those barristers also turn out to know nothing about the Order either, hence the advice coming back to the lawyers is once again fundamentally and fatally flawed. Consequently people repeatedly get given misleading or straight out wrong legal advice by their lawyers that is nothing but incompetence mixed with half-truths. When confronted by this, many lawyers also understandably get very defensive and a very concerning number won’t ever admit they were wrong either. Yet, wrong they have been. 100% wrong. Along with their barristers. And on many, repeated occasions.
It remains a complete mystery to us why the unique protections of the Order are not widely understood in this state. Lawyers and barristers for starters are extensively trained professionals. They are well paid to know all of this and to protect their client’s interests even in unusual situations – after all that’s why you engage them in the first place. State Legislation is no mystery and the consumer protection of the Order has been around since 1997 so anybody who has been through law school or practiced since then should know all about it. But they don’t. It appears nobody is teaching this obscure area of law at University yet alone afterwards, nor does anybody bother to actually research the issue when it comes up. But as the same lawyers keep reminding us mere mortals, ‘ignorance is no excuse’.
When confronted by matters where the protections of the Order would be of enormous use to a client, it is only to be expected that the uninformed lawyer often then sends the client in the wrong direction – typically a paper chase based on Contract Law. Many of these cases just turn into lawyers picnics; we have never seen a duly successful outcome on a single one where plumbing defects were concerned. Equally in many cases clients are told they have no rights to sue a plumber at all because the plumber was engaged by the builder of their property, not by the client themselves i.e the lawyers say there is no relationship in contract and therefore no right to sue. Wrong! 100% wrong!
So here’s the executive summary: you need to get the right, specialist advice about any claim or potential claim involving a licenced plumber in Victoria. Unless they can prove to you that they are intimately familiar with the Order, do not under any circumstances rely on advice you obtain from a lawyer or barrister otherwise you will almost certainly be dealt a package of urban myths and half-truths whilst paying them for the privilege of providing you with that totally inadequate or completely wrong advice. Ditto unfortunately also for the VBA which simply has no role in any such claims or litigation and should not be providing any advice on these points at all.
Such is the sad and sorry situation we have in Victoria today. Maybe someone can explain why it’s like that but no matter what the answer is, it’s just not acceptable and whilst it remains like that people will continue to have their significant consumer rights compromised.
The team at Metropolis Solutions remains the only experts working in this field as both expert forensic plumbing assessors and expert plumbing claims preparers and we are here to help you when very unfortunately, you might need our specialist assistance whether you are a plumber or a consumer affected by defective plumbing work.