Resolving Building Disputes Through VCAT
If you find yourself in the unfortunate position where you’re in a dispute with your builder or the owner of a property, you may be able to take your dispute to VCAT to have it resolved.
Here are the steps involved:
Domestic Building Dispute Resolution Victoria (DBDRV)
It is surprising how often we find the poured concrete slab is not level. Uneven concrete will not fix itself and if left unchecked will cause more and more damage to your home as time passes.
Before applying to the DBDRV, you must have taken reasonable steps to resolve the dispute within the last three months to be eligible
Check your eligibility – only certain types of parties (owners, builders, etc) can apply and the dispute must be about ‘domestic building work’
If eligible, apply by completing the online application form on the DBDRV website
A Dispute Resolution Officer will then check your eligibility and assess whether the dispute is suitable for conciliation. If it is, a building assessment may be undertaken on DBDRV’s request and then a conciliation will be undertaken at the DBDRV.
Lodge Application and pay fee
If a dispute is eligible for the DBDRV’s service, you must apply to the DBDRV before applying to VCAT (unless you need an immediate injunction)
You must file an application to VCAT’s Building and Property List and attach a copy of your DBDRV Conciliation Certificate and pay the prescribed application fee. Usually, the application is accompanied by Points of Claim
The person who files the Application is referred to as the “Applicant”
Process
Upon the filing of an application in the Building and Property List, the principal registrar will classify the proceeding according to the amount claimed.
Where the amount claimed is less than $25,000, the application will be reviewed by a member and will usually be listed for hearing without any orders being made
Where the amount claimed is between $25,000 and $100,000, the first listing will usually be a directions hearing or mediation (depending on the amount claimed and the complexity of the case)
Where the amount claimed exceeds $100,000, the matter is usually listed for a directions hearing to determine the timetabling
Directions Hearing
A directions hearing may be scheduled by the Tribunal on its own initiative or because it was requested by a party
A directions hearing is not the full hearing. It is a short hearing where the VCAT member decides how the case should be managed.
Points of Claim
A Points of Claim sets out the Applicant’s dispute and legal claims made against an opposing party (referred to as the “Respondent”) – eg breach of contract – as well as the damages the Applicant is seeking. A Points of Claim should include:
details of the contract (if any) including the full names of the parties
fully itemised particulars of the claim (including details of incomplete or defective works referencing any expert reports) and the relief or remedy sought.
Points of Defence
Upon receipt of the Points of Claim, the Respondent is then required to file and serve a Points of Defence which sets out the facts and basis the Respondent denies the claim. The Respondent may also file and serve a Points of Counterclaim if they also have a claim against the Applicant. The Respondent will then be required to pay an application fee for its Points of Counterclaim.
List of Documents
VCAT may require the parties to exchange Lists of Documents, which set out the documents the parties intend to rely on in the proceedings, which may include:
building contract; notices; variations; extensions of time
quotations and/or invoices
expert reports
correspondence between the parties
Mediation and Compulsory Conference
VCAT will usually set a date for the parties to attend a mediation or compulsory conference before a full hearing
At either a mediation or a compulsory conference, the parties in dispute attend to identify the disputed issues and questions of law to be decided, develop options, consider alternatives, and try to reach an agreement to settle the proceeding. All communications during the mediation or compulsory conference are on a without prejudice basis
A mediation is conducted by VCAT accredited mediators, who may or may not be a VCAT member. Whereas a compulsory conference is conducted by a VCAT member
If a mediation or compulsory conference is unsuccessful, the proceeding will usually be listed for a final hearing. If it is successful (eg a settlement offer is accepted), settlement is confirmed when it is recorded in writing and signed by the parties.
Witness Statements
Where witness statements are ordered, each statement must consist of a narrative of the evidence to be given by each witness
Leave of the Tribunal is required to call evidence of material facts that is not included in a witness statement
The witnesses will then be required to attend the hearing for cross-examination
Expert Reports
Expert witness evidence may be relied upon by the Tribunal to form an opinion about a technical matter that is relevant to the issues to be determined in a proceeding. Any expert report must comply with VCATPN2 – Expert Evidence.
Tribunal Book
A Tribunal Book contains all relevant documents in one book and must be prepared in accordance with the Practice Note PNBP1.
Hearing
A VCAT hearing allows all parties in a dispute to present their case, ask questions and provide evidence. A VCAT member listens and makes a decision to resolve the dispute, either at the end of the hearing or in a written judgement provided at a later date. The Applicant must pay the hearing fee where applicable.