Builders Under Inquiry of the Victorian Building Authority
Part 4 of the Domestic Building Contracts Act 1995 (Vic) (“the DBCA”) provides that in circumstances where a dispute has arisen for works which are subject to a Major Domestic Building Contract may seek the services of the VBA to examine whether the works performed by the builder are defective. More specifically, section 48 of the DBCA states that a report must be produced after an inspection as to the result of the VBA’s inspection.
If the Builder fails to carry out any recommendations contained in the VBAs inspector’s report, the Builder runs the risk of subjecting itself to an inquiry of its conduct under section 179 of the Building Act 1993 (Vic) (“the Building Act”). An inquiry of this nature is very serious for a Building Practitioner and can be tantamount to ‘the horse bolting’. It is serious for a number of reasons; firstly, it’s almost always costly, but can also result in the Builder being reprimanded, conditions placed on its licence or suspension.
One has to ask the question, why do Builders allow situations such as these progress to an inquiry? The answers are varied but can include Builders being too cavalier and having a ‘bulletproof’ mentality, being ignorant of the process and the consequence of non-compliance, or not willing to admit fault and just ‘ignoring’ the seriousness of the situation.
As mentioned above, we see too many Builders come to us once the inquiry into their conduct has begun. While we have achieved many great results for clients who come to us at this stage, we have a better strike rate of fortifying our client’s legal standing and getting a higher level of outcome for Builder’s when they seek advice in the first instance. It is also commonly known that the ‘front-end’ handling of the matter almost always produces smaller legal bills than a ‘back-end’ cleaning up.
What Should Builders Do if a Dispute Arises?
If a dispute arises under a Major Domestic Building Contract you should seek the services of an experienced construction lawyer immediately. The lawyer will be able to guide you through the situation and will advise of you of which cards to play at what time. With early and sharp advice, one may even be able to avoid the powers of section 48 of the DBCA being invoked. If however the section 48 powers have been invoked and a VBA inspector has produced a report, again, seek the advice of your lawyer who is experienced in liaising with the VBA, has a rapport with the VBA and who is also intimate with the process.
Builder’s have a tendency to sweep issues such as these under the carpet, which is by far the worst course of action to take. The Builder must always keep open and clear channels of communication between all parties involved (including the lawyer) to give themselves an opportunity of a successful outcome.
