How Construction Defect List works in Phuket Thailand
Construction Defect List is one of the most important evidences in construction defect claims. It is one of the key of success of the Claim both in Court and in Arbitration. This article, we’re going to the defect list, one of the 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 with the Thai law requirement regarding burden of proof and standard of proof. When you go to Thai Court or Thai Arbitration Center. This explanation and guidance help you to prove your damages and/or remedies regarding defects of your construction. It gives you more chances to win the case. However, it is subject to your own default of construction contract. Also, other factors related to law procedure.
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 defect, the small defect and the serious defect. An easy way to define these two defect types are; A small defect means the work is not beautiful as it should be. But, it is still usable without a hazard like painting and skimming etc.; A serious defect means the work can’t be used as it is or it is not safe to use like no standard material and structure of the building.
Some defects are easy to see but some aren’t. Some may appear during the construction, some at the time of delivery or after delivery before/after warranty periods. Information in this article applies to both small and serious defects which 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 a liability for the both small and serious defects mentioned according to the signed contract. But the owner has a duty of proof of defect and damages. And the proof must attain a legal standard.
That is why preparing a Defect list and Estimate Damages list without certification by a third constructor is a common mistake, this mistake has a serious effect on the compensation amount paid to the owner. Although the Thai Court has a right to decide the amount of damages without evidence provided. It often does not cover the damages in reality. A voice of a third party is louder than the voice of the disputant. This legal theory has been accepted since Roman age until this day.
Recommendation to Prepare the Defect List
Due to a question of Law regarding Burden of Proof and Standard of Proof. Therefore, the defect List must clearly provide the Defect details and the Damages details. It should be prepared by a third party constructor 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 creates credibility to both the defect and the amount of damages.
In conclusion, when making decisions, the Court or The Arbitration use the rule of preponderance of evidence or balance of probabilities. Better evidence is the winner.
Law reference; Section 222 to 225 of the Civil and Commercial Code. Section 85 and 104 of the Civil and Commercial Procedure Code. Supreme Court Judgment No.1086/2509
You may be interested in reading the Construction Delay Claim and Construction Extra Work Claim.
Finally, if you are looking for a Law firm in Phuket for a Construction Dispute. We are professional services both in Court and Thai Arbitration Institute, just feel free to contact us.
Article By; Akenarin Thongplod, Thai Barrister at Law,