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 Domestic Builders Dispute Resolution Victoria (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 in 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 prepare 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 this 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.

Disclaimer

This article is not legal advice and discusses it’s topic in only general terms. Should you be in need of legal advice, please contact a construction law firm. The experienced team at Lovegrove & Cotton can help property owners and building practitioners resolve any type of building dispute.

^{Written by Jordan Davies, former Lawyer at Lovegrove & Cotton}