The construction defect list is one of the most important pieces of evidence in construction defect claims. It is one of the keys to the success of the claim both in court and in arbitration. This article is going to address the defect list, one of the most common mistakes in construction lawsuits.
How Does This Article Help You?
This article gives you an easy explanation and guidance. How to prepare a construction defect list to meet Thai law requirements regarding the burden of proof and standard of proof When you go to a Thai court or Thai arbitration centre. This explanation and guidance will help you prove your damages and/or remedies regarding defects in your construction. It gives you more chances to win the case.
However, the defect claim is subject to the default of the owner under the provisions of the construction contract. Also, construction law and other factors related to law procedure (See the limitation of defect claims below.)
Easy Definition of Defect List
In order to give an easy definition of the construction defect list. Let’s say there are two main types of defects: the small defect and the serious defect. An easy way to define these two types of defects is that a small defect means the work is not as beautiful as it should be. But it is still usable without hazards like painting, skimming, etc. A serious defect means the work can’t be used as it is or is not safe to use because there is no standard material or structure in the building.
Some defects are easy to see, but some aren’t. Some may appear during construction, some at the time of delivery, or after delivery, before or after warranty periods. The information in this article applies to both small and serious defects that appear before the end of the warranty period.
How Most People Prepare Their Defect List?
Most owners do the same. Preparing a defect list and damage list themselves without knowing and understanding the duty of proof and standard of proof in the Thai legal system. Here is an important note: although the contractor has liability for both the small and serious defects mentioned in the signed contract, But the owner has a duty to prove defects and damages. And the proof must meet a legal standard.
The voice of a third party is louder than the voice of the disputant. This legal theory has been accepted since the Roman age until this day. That is why preparing a defect list and an estimate of damages list without certification by a third constructor is a common mistake.
This mistake had a serious effect on the compensation amount paid to the owner. Although the Thai Court has the right to decide the amount of damages without providing evidence, it often does not cover the damages in reality.
Recommendation to Prepare the Defect List
Due to a question of law regarding the burden of proof and standard of proof. Therefore, the defect list must clearly provide the defect details and the damage details. It should be prepared by a third-party contractor or a construction consultant. The amount of damages should refer to the middle price or the market price of the construction, which is prepared yearly by the Department of Business Development. Making a defect list this way gives credibility to both the defect and the amount of damage.
In conclusion, when making decisions, the court or arbitrator uses the rule of the preponderance of the evidence or balance of probabilities. Better evidence is the winner.
Law reference: Sections 222 to 225 of the Civil and Commercial Code (CCC). Sections 85 and 104 of the Civil and Commercial Procedure Code Supreme Court Judgement No. 1086/2509
Limitations of Defect Claim
As mentioned above, a defect claim is subject to the default of the owner under the provisions of the construction contract. Also, construction law and other factors related to law procedure Here is the limitation on defect claims under the Civil and Commercial Code.
1. If the defect in the work originates from the nature of the material supplied by the owners or from instructions given by him, the contractor is not liable unless he knew of the unfitness of the materials or the impropriety of the instructions and did not give notice of it. Section 591 of the CCC
2. If the owner has accepted defective work either expressly or impliedly, the contractor is not liable unless the defect was such that it could not be discovered when the work was accepted or had been concealed by the contractor. Section 598 of the CCC
You may be interested in reading the Construction Delay Claim and Construction Extra Work Claim.
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