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Clause 26
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Question 1

We, as principal agents, have issued the Final Completion Defects List for an industrial project. There are a number of defects to the floors which the contractor has agreed to remedy. The client cannot stop production to enable the sub-contractor to do these works until shut down in December. The main contractor is unhappy with this, saying he wants to complete the work now so that he can achieve Final Completion (and thereby get payment of the final account). Can we make the contractor wait for these two months before he can access the building to complete the defects? He has completed all other defects on the list. We cannot find anything relating to this in the JBCC.

Ref: P26.001

Answer

Clause 16.2 specifically requires the employer to give "reasonable access" to the contractor post practical completion and therefore to the subcontractor to fulfill this obligation. In this case the tender conditions should have addressed this issue. I assume they did not. Therefore the contractor must be given final completion with the defect being noted. The right to have the defect still exists. Should this not be addressed the employer, after giving notice, can have the defect repaired and sue the contractor for the damages suffered as he is covered by the LDLP.

SPECIAL NOTE: The 5.0 Edition incorporates most of the Preliminaries 3.0 clauses related to the site in clause 16.0 SITE AND ACCESS.

Question 2


It is an age old debate around the liability for the repairs to cracks in plaster work on building projects post completion. The matter around this project is as follows:

Practical and Works Completion certificates have been issued and the contractor is busy with the Final Completion List post the 90 day period. Several cracks have appeared around v-joints in plasterwork and in plastered walls. The contractor in question is locked in a debate with myself regarding the liability of the repair of these cracks. For information it is approximately 12 months since PC was issued due to non-performance by the relevant contractor

I am of the opinion that these are defects to be rectified at the contractor costs, they are of the opinion that these are maintenance matters. I recall you defining that all defects up to FC are the contractor’s responsibility. Please can you advise in you professional opinion, for this and future projects. Is there any reference that you can advise to either a case or a definition that defines the opinion.

Ref: P26.002

Answer

The defects list produced in terms of 26.2.2 is the principal agent's judgement of the "defects" that are not acceptable and therefore require rectification to achieve final completion. Clearly there is no particular case or definition related to what would or would not qualify as such a defect as the list would be infinite and would continue to change as new and different materials and construction methods develop or change

Obviously there can be many reasons for cracks developing in plaster work and a number of them could and would not necessarily be the liability of the contractor - soil conditions, sand composition, professional consultant’s specification etc. In terms of the agreement it is your judgement that counts. Apply your mind, expertise and experience in a fair and reasonable manner and live with the consequences!