Pursuing a Domestic Building Dispute Through VCAT
Since the establishment of Domestic Building Dispute Resolution Victoria (DBDRV) most domestic building disputes must go through mandatory conciliation processes conducted by DBDRV before proceeding to the Victorian Civil and Administrative Tribunal (VCAT). Only if a dispute is assessed by DBDRV as unsuitable for conciliation, or the matter remains unresolved after attempted resolution, may the parties apply to have the matter determined by VCAT.
This article provides an overview of the types of claims that may be determined by VCAT and explains the process of pursuing a domestic building dispute.
What types of building matters can be heard by VCAT?
VCAT has jurisdiction to make orders considered fair to resolve a range of domestic building disputes brought to its building and construction list. Common matters involve claims for incomplete and / or defective domestic building work. The following types of matters may be heard:
- Domestic building matters with a single tradesperson. Mandatory conciliation through DBDVR is not required for certain matters involving a single tradesperson engaged directly to perform only one type of job from a prescribed category of domestic building work including, but not limited to, electrical work, installation of floor coverings, insulation, painting, plastering or tiling work.
- Domestic building matters for which a Conciliation Certificate has issued. This is a certificate confirming that the matter was determined by DBDRV as unsuitable for conciliation or that the parties attempted conciliation but did not resolve the matter.
- Applications for injunctive relief such as an application for VCAT to make an order that prevents a party from doing something that may cause damage or loss.
- Applications for review of a decision made by DBDRV.Reviewable decisions include the issue of a dispute resolution order, the issue of a notice of breach of resolution order, an alleged failure by DBDRV to issue a Certificate of Conciliation within the prescribed time or a decision to pay money out of the DBDRV trust fund.
Proceedings are commenced by lodging with VCAT the appropriate application form with the prescribed fee.
A Points of Claim should accompany the application with details of any building contract, full names of the parties, the site address, itemised particulars of the facts concerning the claim and the amount or remedy sought. It is important to clearly identify incomplete and / or defective building works in the Points of Claim. This can be supported by an expert report with itemised defects, recommended steps to rectify or complete the works, and the estimated cost to fix each item. Claims should be calculated carefully and may relate, not only to the direct costs of rectifying building work, but incidental costs such as loss of amenity, loss of rental income, storage costs, legal fees and expert fees.
The tribunal will usually notify the other party. However it is common for parties to also notify the other side when commencing proceedings by serving them with the application and supporting documents.
If you are responding to an application, you may need to file a Points of Defence or Points of Counterclaim which should clearly respond to the Points of Claim and set out the material facts relied upon.
If documents do not contain all of the information necessary to consider or respond to a claim, either party may seek further particulars by serving a request on the opposing party and a copy with VCAT. However, to avoid costs orders, the particulars sought must be specific and not in the form of interrogatories.
Case management at the VCAT
The manner in which a case in the building and construction list proceeds generally depends on the type of dispute to be heard (as described above) and the monetary value of the claim.
Generally, for claims less than $25,000 a VCAT member will review the application and schedule a hearing.
For claims between $25,000 and $100,000 a mediation is usually scheduled.
Claims for over $100,000 are reviewed by a member of VCAT who may either arrange for a mediation or directions hearing.
The purpose of a directions hearing is to:
- determine how the case should be managed and how long it is likely to take;
- identify the supporting documents that each party will need to provide;
- enquire about expert or other witnesses that will be used;
- determine whether the parties must attend a mediation or compulsory conference; and
- set a timetable and a final hearing date.
Can I be represented by a lawyer?
A party must request permission to be represented by a lawyer or other professional in VCAT proceedings unless there is an automatic right to representation. In building disputes, an automatic right to representation generally arises for a party who is a municipal council, body corporate, public authority, or builder’s warranty insurer, or if the other party to the proceedings is a professional advocate (such as a lawyer).
Additionally, if a party to VCAT proceedings is granted permission to be represented by a lawyer or other professional, then any other party to those proceedings has an automatic right to representation.
A request to be represented is made at the directions hearing, final hearing, mediation or compulsory conference, as relevant. If the request is denied parties must be ready to present the case themselves.
Preparing a case
The purpose of the VCAT hearing is to allow the parties to present their case by making submissions, giving evidence, questioning witnesses and providing supporting documents.
The tribunal member will run the hearing, listen to and consider each parties’ submissions and evidence, and determine the case. The tribunal member’s decision will be provided in writing after the hearing.
It is important to use the appropriate forms and follow VCAT rules and procedures when filing pleadings and preparing evidence to support your case.
You should start preparing your case early. Identifying and coordinating suitable expert witnesses to ensure they have knowledge and experience in the required area, are available on allocated hearing dates, and have sufficient time and information to prepare reports to support your case can take time.
Within 28 days of receiving a Notice of Hearing, the parties should provide copies of all documents and reports upon which they will be relying, to the other side.
All evidence should be brought to the hearing such as the building contract, notices under the contract, variations, quotations, invoices, expert reports and witnesses.
Resolving your dispute through ADR
‘VCAT provides alternative dispute resolution (ADR) services such as mediation, compulsory conferences and fast track mediation and hearings (for claims up to $15,000). Parties may meet in confidence to explore options to resolve the dispute with the assistance of a mediator or VCAT member. Any agreement reached can be documented in legally binding consent orders.
For proceedings where a claim is $15,000 or less, representation by a professional advocate is normally not permitted.
Domestic building disputes can be complex, and parties involved can run into considerable time and expense if they do not carefully prepare their case and follow VCAT processes and directions.
An experienced construction lawyer can explain the process involved in pursuing a claim through VCAT, help identify suitable expert witnesses, assist in preparing your case and, if relevant, represent you in VCAT proceedings.