Avoid disputes by being actively involved in your project. Take independent advice where necessary and always seek a second opinion from a qualified professional. Stay informed, ask questions and maintain good communications with your builder.
The building process is inherently difficult, and things A document that sets out what a person wants to happen to their money and other property after they die. go wrong; do not escalate disputes and be prepared to compromise. Keep a realistic perspective on issues as they arise. Quarrelling with the builder over In Victoria, a child or young person under 18. See also infant. items is counterproductive. Remember you and the builder are committed to each other until the end of the project and disputes may sour the relationship. Even if you have a good relationship with your builder, do not get complacent and do not stray from the requirements of the An agreement that the law will enforce..
Building disputes can be time-consuming and very costly. Often consumers find that the money they have spent on legal proceedings would have been better spent repairing defects.
First, attempt to resolve your dispute with the builder. If this does not bring satisfaction, refer your complaint to the Domestic Building Dispute Resolution Victoria (DBDRV) (see ‘Where to get help’ at the end of this chapter). Court proceedings about a civil dispute (not a criminal case). is a last resort. If litigation is necessary, ensure that your lawyer provides you with an estimate of likely legal The amount charged by a lawyer for legal work. Lawyers can only charge the amount agreed with the client in a costs agreement or the amount stated by a court in its rules. The party who loses a case usually has to pay all their own costs plus most of the costs reasonably incurred by the other side. See also indemnity costs. so that you can decide whether to proceed with the dispute or simply repair the defects yourself.
VCAT’s Building and Property List has The authority of a court or tribunal to hear matters brought before it, based on some factor such as area or law, amount of money claimed, or geographic area. to hear disputes arising from domestic building works (see ‘VCAT’s Building and Property List’, below).
Since 4 July 2016, a building surveyor or the VBA can issue a builder, including an owner–builder, a A legally proper instruction by one person (or body) to another, so that the person is bound to take action, or make a decision, as instructed. Compare dictation. to fix building works. A copy of these directions must be sent to the owner. It is an A criminal act prohibited by state or commonwealth criminal law. An offence is either a summary offence (minor) or an indictable offence (serious). for a builder to fail to comply with a direction to fix building works.
Since 1 September 2016, the VBA’s powers to discipline builders and building practitioners have been expanded with a new system of ‘show cause’ notices. These may be issued following a Under the Australian Consumer Law, a person who buys goods or services for less than $40 000 or for personal or home use. complaint. A The requirement that a party convince a government authority or a court why some decision should not be made against them. For example, to get bail, an accused person might have to show a court why they should not be held in prison. A defendant who has to show cause has a reversed burden of proof (i.e. it is the defendant, not the prosecution, that has to prove something). notice may not necessarily address the consumer’s concern about the work and may distract a builder from completing the work and repairing defects.
Domestic Building Dispute Resolution Victoria
The Domestic Building Dispute Resolution Victoria (DBDRV) is an independent Victorian Government agency that assists home owners to resolve disputes with their builders. It is a free Formal delivery of legal documents to a person to tell them there are court proceedings against them which they must defend, or to make sure a witness in a case knows when they have to go to court to give evidence.. Since 24 April 2017, all domestic building disputes have had 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 A person or organisation directly involved in a court case. Parties include the plaintiff or applicant, the defendant, and any third party added to the action, but not independent witnesses. and assesses whether the dispute is suitable for A form of alternative dispute resolution. The parties negotiate with the help of an independent person called a conciliator. The aim is to sort out the dispute by mutual agreement, rather than having a decision made by a court or tribunal. See also arbitration; mediation; negotiation.. Section 45C of the DBC A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. 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 A promise in a contract. For example, a promise by a manufacturer that goods will be repaired or replaced if they turn out to be faulty. insurance claims. Before VCAT can hear a dispute, an application must be filed with the VCAT The officer in charge of the administrative section of a court, which is known as the registry. See also prothonotary., with the appropriate fee.
Applicants should be prepared. 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.
For more information, see VCAT’s website (www.vcat.vic.gov.au).
A form of alternative dispute resolution where an independent person (a mediator) is appointed to help the parties come to agreement. Mediators do not decide the outcome of the dispute. They help the parties consider the issues and best possible outcome. Parties may choose to use mediation instead of going to court, or the court may order the parties to go to mediation as a way of avoiding a court hearing. See also arbitration; conciliation; negotiation.
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 The time and place at which a court or tribunal hears the parties argue their case and makes a decision. proceeds immediately.
A short hearing between the judge and the lawyers in a case to decide how the case will be run until the hearing starts. For example, information can be given about the legal points the parties disagree about and the evidence that can be admitted.
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.
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 can make any order it considers fair, including:
- ordering the payment of money, including money owing, A court order for money to be paid to someone to compensate them for a loss suffered as a result of a civil wrong or breach of contract. For example, a person who caused a serious permanent injury to another person can be ordered by the court to pay damages that compensate the injured person for their loss of income from being unable to work. See also aggravated damages; compensatory damages; general damages; liquidated damages; nominal damages; special damages. or Making good, returning things to the way they were. For example a court can order restitution of stolen goods to someone who is entitled to them; a party to a contract that has been rescinded is entitled to restitution that restores the status quo.;
- varying a term of a domestic building contract;
- declaring a term of a domestic building contract is or is not Having no legal effect. A void agreement has something wrong with it, so it cannot be a legally binding contract. For example, a verbal agreement to buy land would be void, because the law says those contracts have to be in writing., or varying a contract to avoid injustice (note, s 14 DBC Act states that A form of alternative dispute resolution where the parties appoint an independent person (an arbitrator) to sort out their dispute. Arbitration is often the method choose to solve commercial construction and shipping disputes. It is less formal than a court hearing. An arbitrator’s decision is final and generally cannot be appealed. 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.
- (1) A standard set of working conditions, including pay rates, for a particular industry. (2) A court decision that a party receive compensation, such as an award of damages to compensate them for physical injuries. costs (s 109 Victorian Civil and Administrative A body set up to hear and decide disputes, usually with less formality and less strict rules of evidence than in a court proceeding. Act 1998 (Vic));
- refer questions of law to the Trial Division of the Supreme An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate. or the Court of The review of the decision of a lower court by a higher court. If an appeal is successful, the higher court can change the lower court’s decision. (s 148);
- grant leave to parties to be legally represented.