The Law Handbook 2024

Chapter 6.3: Building or renovating a house 573 building disputes have to be lodged with the DBDRV first, before parties can proceed to VCAT. Home owners need to take reasonable steps to try to resolve the dispute directly with their builder before the DBDRV will accept the dispute. Once an application is received by the DBDRV, a dispute resolution officer talks to each party and assesses whether the dispute is suitable for conciliation. Section 45C of the DBC Act sets out the assessment criteria that a dispute resolution officer uses to assess whether an application should be accepted or rejected. The DBDRV may organise an independent building expert to carry out a building assessment to determine whether or not domestic building work is defective or incomplete. If the parties are unable to resolve their dispute at the DBDRV conciliation conference, the chief dispute resolution officer may issue the parties with a certificate indicating that the dispute is not resolved. Either party can then apply to VCAT to make a ruling about the dispute. The DBDRV is a heavily engaged service and consumers should anticipate delays in the processing of their disputes. VCAT’s Building and Property List VCAT’s Building and Property List has exclusive and monetary jurisdiction to hear and determine all domestic building disputes, including home warranty insurance claims. Before VCAT can hear a dispute, an application must be filed with the VCAT registrar, with the appropriate fee. Applicants should be prepared before commen­ cing VCAT proceedings. You should know what is wrong with your building, how it is to be repaired, and the repair costs. All this information should be supported with written reports and quotations. Due to the COVID-19 pandemic, there are delays in VCAT processing cases. Since 2022, the County Court has been accepting domestic building disputes. Consult your lawyer about this option. For more information, see VCAT’s website (www. vcat.vic.gov.au) . Mediation The VCAT registrar may first refer a matter to mediation, where a qualified, independent mediator helps the parties resolve their dispute. If mediation is successful, the mediator notifies VCAT. If mediation is unsuccessful in smaller matters (where the dispute is for no more than $10 000), the VCAT hearing proceeds immediately. Directions hearing Where mediation is unsuccessful in matters involving more than $10 000, a directions hearing is held (on the same day as the mediation, if possible). More complex disputes are referred to a directions hearing. At a directions hearing, a VCAT member sets out the steps that parties must take before a dispute is heard by VCAT. Compulsory conference VCAT, or the principal registrar, may also require the parties to attend one or more compulsory conferences before the proceeding is heard by VCAT. The aim of a compulsory conference is to: • identify and clarify the issues in dispute; • promote settlement; • identify questions of fact and law; and • allow directions to be given concerning the conduct of the proceeding. VCAT’s powers VCAT can make any order it considers fair, including: • ordering the payment of money, including money owing, damages or restitution; • varying a term of a domestic building contract; • declaring a term of a domestic building contract is or is not void, or varying a contract to avoid injustice (note, section 14 of the DBC Act states that arbitration clauses in domestic building contracts are void); • ordering the refund of money paid under a domestic building contract; and • ordering rectification of defective building work or completion of incomplete work. VCAT can: • award costs (s 109 Victorian Civil and Administrative Tribunal Act 1998 (Vic)); • refer questions of law to the Trial Division of the Supreme Court or the Court of Appeal (s 148); and • grant leave to parties to be legally represented.