How do I resolve my domestic building dispute (in Victoria)?

How do I resolve my domestic building dispute (in Victoria)?

18 Nov 2021

In Victoria, the Domestic Building Contracts Act regulates residential building contracting and the contractual interaction between residential builders and owners.

The Victorian Civil and Administrative Tribunal is where you resolve domestic building disputes.

However, before a residential building dispute goes to the VCAT, it must, at first instance, go to the DBDRV.

The DBDRV appoints a mediator that with the cooperation of the parties tries to resolve the dispute – if this is not possible, the dispute can then be referred to the VCAT.

To issue legal proceedings VCAT an application must be lodged via the application form available on the VCAT’s website.

Once filed, the VCAT will ordinarily set down a directions hearing.

At the directions hearing, there will typically be an order for the matter to go to mediation, and sometimes the tribunal member will make an order that the parties provide a statement of claim and sometimes a statement of defence and/or counterclaim.

Prior to the mediation, the parties are required to furnish a ‘position paper’ that provides a summary of the dispute.

Although lawyers are not compulsory, in most cases, construction lawyers do attend and they are often accompanied by technically qualified expert witnesses.

The mediator does their level best to settle the matter with the assistance of the parties and their advocates.

If the matter settles, the terms of settlement are written up and signed off as a deed of settlement.

If the mediation is unsuccessful, the case is then referred back to a directions hearing.

At the directions hearing, the tribunal member may make orders for all, or some of the following:-

  • Completion of statement of claim, statement of defence/and or counterclaim
  • Reply to defence or counterclaim
  • The preparation and exchange of lists of discoverable documents
  • The preparation, filing and exchange of expert witness reports
  • Timelines for the completion of the above tasks

Once the above steps have been completed, ordinarily, there will be a further directions hearing

At that directions hearing, typically orders will be:

  • The setting down of a date for a compulsory conference
  • Setting of a date for trial
  • Any further orders that the parties require
  • In circumstances where one of the parties (or both) have not complied with orders, further orders that generate new deadlines

If a matter goes to compulsory conference, the parties are required to attend

At the compulsory conference a tribunal member typically presides and then the member

  • Gives both sides the opportunity to present  a summary of their cases
  • Typically caucuses with both parties
  • And sometimes gives an indication where they see the respective merits of the case

If the matter settles, the settlement is written up and signed by the parties and the case concludes.

If the matter does not settle, the case will proceed to trial and full hearing.

At the hearing, the following tends to occur:

  • The parties will be legally represented by construction lawyers and/or barristers
  • Each party will tender their expert evidence that will be proffered by the expert witnesses
  • Depending on the complexity of the dispute and the amount involved, the hearing range will be from a number of days to a number of weeks

Once the case is concluded, the tribunal member will hand down a written decision.

This piece is prepared by Lovegrove & Cotton, including Jordan Davies, Senior Paralegal.

 

Lovegrove & Cotton: Experts in Residential Building Dispute Resolution

The above summary is a very condensed, if not abbreviated, version of the process at VCAT. As construction law is a complex area, a potential disputant is well advised to engage a well experienced construction lawyer to have conduct of the dispute resolution process. Lovegrove & Cotton have practised in this area for 30 years. One of our lawyers co-authored ‘the Users Guide to the Domestic Building Contracts Act’, Lovegrove on Building Control. The principal of Lovegrove and Cotton, Justin Cotton has 20 years of experience in the resolution of building disputes and this of course includes a wealth of experience at the VCAT.