Most purchasers of real estate in Queensland engage a pest inspector and/or a builder to carry out an inspection of the property they are interested in purchasing before settlement and as part of the conveyancing process. Those engaged owe a duty of care to ensure they are not negligent in carrying out the work for you or otherwise breaching implied conditions of the retainer to act with the competence and diligence of a professional inspector. If they do carry out an inspection, and you rely on that inspection later to find out there is damage to the house caused by termites or other pests or structural or other defects, then you have a right to complain and consider recovery for the damage that this causes you. The measure of those damages may be different depending on the situation but the costs to repair or replace structures or part of houses and take other remedial steps can be many thousands of dollars.
The situation is not unfortunately unique or even rare, and has occurred and occurs on many occasions. We have assisted clients in claims against pest inspectors who have failed to detect termite damage and building inspectors not identifying matters that would have meant that the client would not have bought the property or if they had, would have negotiated significantly reduced prices.
In one matter that was before the courts, the Plaintiff purchased a house that was about 70 years old with a condition on the contract that the seller would provide a white ant inspection report. The report that was given said that there was “nil” white ant activity. Settlement occurred and shortly afterwards, only a matter of weeks, the plaintiff engaged a worker to carry out some minor alterations and at such time, they discovered considerable termite activity and damage. They took an action in negligence (because they had not engaged the inspector directly, they didn’t have a cause of action for breach of contract) and an expert gave evidence that the termite activity would have been active for at least 2 or 3 months including when the inspection was undertaken and that termites had in fact been located and treated some months before. The defendant, the inspector, could give no reason why he had overlooked the damage caused by the termites.
The Court considered that the pest controller should have regarded the area, being the roof, as an important area of inspection and should have detected the tell-tale signs of termite activity. The failure to do so amounted to a breach of his duty of care he owed to the plaintiff and the damages were awarded being the amount of the repair costs for the termite damage.
Aitken Whyte Lawyers
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