Articles

By Lovegrove & Cotton: Construction and Planning lawyers.

Residential building contracts are governed by the Domestic Building Contracts Act 1995 (DBCA). If there is any dispute to do with a residential building (domestic dwelling) the dispute has to be resolved in the VCAT.

Claims for less than $10,000

Lawyers are barred from appearing and only lay advocates can appear in these matters, as they are small claims.

The Dispute Resolution Process

There is a prescribed VCAT Application form which can be accessed at
https://www.vcat.vic.gov.au/sites/default/files/resources/VCAT_ApplicationToBuildingAndPropertyList_draft2.pdf The claimant has to complete the form and pay the fee.

Points of Claim need to be attached. There is some artistry in preparing Points of Claim, and only the very brave would draft them without the deployment of an experienced construction law firm.

The Points of Claim and the fee are filed with the Registrar at the VCAT. Once filed, the Registrar will ordinarily set down a directions hearing and, at the directions hearing, a Tribunal Member will provide a list of orders. The orders will typically state the following:

• Points of Defence and Counterclaim to be filed by given date;
• The matter to be set down for mediation on a suitable date;
• Often an order that expert witness reports (for example, in regards to building defects), in compliant VCAT Guideline format, should be furnished, filed and served to the parties on a given date;
• Often there are orders for discovery where the parties are required to compile a list of documents, citing in numerical order all documents germane to the building contract. The parties are afforded the opportunity to inspect the documents in the list.

The Mediation

At the mediation a mediator nominated and remunerated by the Tribunal will preside over a mediation/dispute resolution conference. Parties must attend. Typically, lawyers and their experts will attend the mediation with the view to assist in negotiation and put forward their client’s positions and cases.

Mediators cannot compel the parties to settle, as they are facilitators and “cajolers” if you will. If the mediation is successful, terms of settlement are drafted and executed, and the dispute resolution process is aborted. Remember: a mediator is generally more concerned about getting a settlement than the justice of your case.

When mediations don’t settle

If there is no settlement, another directions hearing will be convened and the case will be set down either for a Compulsory Conference or for trial. Further, any additional interlocutory steps that have been neglected will be regularised. In addition, there will be a timetable for those matters that need to be attended to prior to trial. For example, witness statements, a Tribunal Book of Key Documents, and so on.

Compulsory Conferences – What are they?

Compulsory Conferences are very much like Mediations, except the convener of the Compulsory Conference will always be a Tribunal Member and the Member will, after hearing from both parties, provide a view on which party has a more meritorious case. This is useful as it gives the parties an ‘inkling’ or a ‘leg up’ as it were. Nevertheless, the Compulsory Conference Convenor cannot compel a settlement.

Trial

If a matter doesn’t settle either by negotiation, mediation or compulsory conference, the matter goes to trial. Typically a barrister and a solicitor will be briefed along with expert witnesses and they appear before a Tribunal Member. Trials can take anywhere between 4-5 days to several weeks to conclude and after the case concludes, it may take some months before the decision is published. Awards for costs do not necessarily follow the outcome so it is not necessarily ‘to the victor go the spoils’. Trials are very debilitating, very costly and attended by considerable risk. It follows that it is absolutely critical that a top construction law firm is engaged – www.lclawyers.com.au – such are the dire consequences that follow from a loss.