By Harriet Warlow-Shill

19 July 2019

In last month’s article, we have considered the importance of getting proper legal advice before entering into a domestic building contract.

Legal advice is crucial to mitigate risks faced during the building process. However, not all risks can be fully avoided. An unfortunate reality in the construction industry is how often things can go wrong.

When plans and timelines begin to unravel, it is important to not panic and begin working towards a resolution. This blog outlines some of the common steps undertaken when faced with a construction dispute. While the exact process will inevitably differ from case to case, this may be a useful guide for what first time litigants can expect.

The most common forum for domestic building disputes is VCAT. However, the dispute must first go through a number of stages before it reaches a hearing at VCAT. These stages are designed to provide as much opportunity as possible for the parties to reach a resolution without the need for a binding decision.

Domestic Building Dispute Resolution Victoria

Domestic Building Dispute Resolution Victoria (DBDRV) is the first port of call for disputes that cannot be resolved by the parties alone. A dispute cannot proceed to VCAT until parties have first been to DBDRV and obtained a certificate confirming their attempt to settle.

DBDRV will either facilitate a conciliation conference with the parties or make a determination that the matter is not suitable for conciliation. It is important to remember that anything said during conciliation is confidential and cannot be used as evidence should the matter proceed to a hearing.

Application

Should conciliation fail, the parties will receive a certificate from DBDRV allowing the dispute to proceed to VCAT. An application to VCAT will be accompanied by Points of Claim setting out the details of the dispute and any expert reports available.

Directions Hearing

In most cases, VCAT will required parties to attend a directions hearing. This serves the purpose of ensuring that the hearing is conducted as fairly and efficiently as possible. The directions hearing is used to identify the issues in dispute and to set a procedural timetable for the filing and service of documents.

Hearing

While VCAT hearings are less formal than court proceedings, a number of rules and formalities must still be observed. The applicant (the person bringing the case) will present their case first and call their witnesses. The respondent (the person defending the case) will then have the opportunity to present their side of the story and call their own witnesses. In some instances, the Member overseeing the hearing may also ask the witnesses questions. At the conclusion of the hearing, the Member will either make a decision orally provide a written decision up to six weeks later.

However before taking any action it is often useful to have an upfront conversation with your builder. If the relationship can be saved you will save yourself many thousands of dollars.

 

If you have any queries about this article or need advice on a construction dispute, please do not hesitate to get in contact with Harriet Warlow-Shill or a member of our construction law team.

 

Disclaimer
The material contained in this publication is meant to be informational only and is not to be construed as legal advice. Tisher Liner FC Law will not be held liable or responsible for any claim, which is made as a result of any person relying upon the information contained in this publication.

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