Nightmare on Elm Street! Domestic Building Disputes
By Sam Recht
21 February 2017
Have you or are you building a residential home and it has become your worst nightmare? What do you do? Where do you go?
A domestic building dispute can be any dispute concerning the construction of a home in Victoria. Domestic building disputes can arise between different parties, typically between owners and builders, subcontractors, engineers and architects, or all of the above!
Domestic Building disputes in Victoria are resolved through the Domestic Building List of the Victorian Civil and Administrative Tribunal (VCAT).
Issuing proceedings for domestic building disputes begins when one party files a claim at VCAT. The Application should contain Points of Claim and clearly set out the basis of the claim. If your claim is for less than $10,000, legal representation is not permitted unless VCAT grants permission. However, if your claim is for an amount greater than $10,000, it is advised that you seek legal representation. Once an Application is filed with VCAT, a Directions Hearing will follow in which the Applicant is required to file Points of Claim if he/she has not already done so. The Respondent will be directed to file and serve a Defence or Defence and Counterclaim. For building disputes, it is especially important to take photographs of the defective work at an early stage, and to engage a building consultant to provide evidence by way of a written report on the defects and costs of rectification. The Experts Report will be used as evidence of the sub-standard work, the subject of the claim.
One of the orders made at the Directions Hearing will be to refer the matter to mediation. This is ordered to take place as soon as possible as it is an opportunity for the parties to try and resolve their dispute. Therefore, both parties and their legal representation must attend the mediation. This process is efficient and cost effective, however, the mediator cannot make a binding decision for you, nor can they offer their opinion about which party has a better case. Depending on the amount of the claim, if the dispute does not settle, a Compulsory Conference may be ordered to be held 3-6 months later. Within the Compulsory Conference, the Tribunal Member will often present his/her opinion on which party is more likely to be successful in the dispute. This will often motivate the parties to reach a settlement.
If the dispute fails to settle at both mediation and the Compulsory Conference, it will be listed for trial before a Tribunal Member of VCAT. Depending on the complexity of the matters in dispute, trials can be lengthy and very expensive to run. Unlike in other jurisdictions, the successful party is not guaranteed to recover their legal costs from the losing party, thereby providing further incentive to settle at mediation or a Compulsory Conference.
If you are involved in a domestic building dispute it is imperative that you seek advice from a lawyer.
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By Jeremy Quah
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