Building disputes in Victoria are resolved through the Domestic Building List of the Victorian Civil and Administrative Tribunal.
If you have a domestic building dispute (i.e. any dispute to do with the construction of a Victorian home) then the dispute has to be referred to the VCAT.
Regardless of the parties to the dispute, whether it be a dispute between an owner and a builder, or a residential subcontractor, an engineer or an architect, the disputants have to have their differences of affairs resolved at the VCAT.
To issue proceedings, one files a claim in the VCAT. If the dispute is for less than $10,000, legal representation is barred unless the tribunal grants leave.
There will usually be a directions hearing and the parties will be required to file a statement of claim and if there is any contrary view as regards to the claimant’s entitlement, the respondent will lodge a defence and maybe a counterclaim. At some stage there will be an order for discovery whereby the parties have to furnish all documents relating to the dispute and in most building disputes technical experts will be retained to provide evidence on defects and costs of rectification.
Your choice of expert, just like your choice of lawyer, is often critical to the winning or losing of a case, so for God’s sake make sure you get a top construction lawyer and a well-credentialed technical expert witness.
As a general rule, within three months of the claim being filed the matter will be referred to mediation. Both sides have to attend the mediation – often with solicitors in tow – and mediators do their very best to try to settle the matter. Alas, if it doesn’t settle, the dispute finds its way to a compulsory conference (CC).
The CC will occur ordinarily from six to nine months after the claim is issued. The difference between a CC and a mediation is that a CC convener – a tribunal member – will often proffer a view on who would be most likely to win the case. This often proves to be a powerful dispute resolution incentive. Mediators, on the other hand, are not allowed to proffer an opinion on chances of success as their mandate is limited to facilitation or cajolement.
If the dispute does not settle at either the mediation or the CC, it will be listed for trial before a tribunal member. Trials tend to run for weeks, cost a bundle and are nerve-wracking affairs. The winners often don’t get their costs back – little wonder that more than 90 per cent of cases never end up in trial.