Six Ways to Win Your Next Building Case 7

Friday, August 2nd, 2013
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In building disputes, success is often influenced not only by the facts of the case but also by the strategies employed by each party, and throughout my time as a barrister serving the construction industry, I have observed that builders can increase their chances of positive outcomes by adopting a few straightforward techniques

So what are the keys to winning? Here’s a few pointers:

1. Get a good lawyer

This is an obvious first step. A number of firms which specialise in construction can be found on the web. Look at their track record and learn what is said about them through word of mouth.

It is important to use a lawyer who specialises in the building industry. Construction law is a highly specialised area – too much so for a legal generalist to provide the best advice and representation.

2. Engage a building consultant

Most disputes are about building defects or quantification of building work, so it is important to engage a good building consultant with a strong track record.

The consultant’s area of expertise should be appropriate for the nature of the dispute. Where the dispute relates to design, for instance, your consultant will need experience in this area. Likewise, an engineer is needed where engineering failure is alleged. Also, the consultant should have experience in being subject to cross-examination.

This is a particularly important point. The wrong choice of consultant could significantly jeopardise your case. There have been several cases recently where the Bench has reprimanded one of the parties for poor expert evidence and inflated estimates of rectification costs.

3. Be up front

In order to give you the best chance, both your lawyer and your consultant need to be fully aware of anything which could jeopardise your case so they can be prepared to handle any issues or arguments your counter-party may bring up.

Where there were delays, defects or overcharging, your lawyer needs to know about these – as well as matters such as rectification costs, the length of any delays and what the contract stipulates with regard to claims for delays.

4. Get a written legal opinion

It is always good to get a written legal opinion at the outset of the case, which should provide you with an idea about best and worst case scenarios and the likely scenario in terms of chances of success, the amount that will be retrieved and the cost of litigation.

Insurers who are professional litigants always demand this type of information. You should as well.

5. Have deep pockets

Building disputes can drag on for lengthy periods and it is important that you have sufficient financial resources in order to go the distance.

It is equally important to be aware of your opponent’s financial position and the likelihood as to whether or not they will be able to pay in the event your case is successful.

6. Don’t be ruled by emotion

Never allow negative personal feelings to motivate you to take legal action. Building disputes are about dollars and getting things done, period.

As the old Italian saying goes, “if you want revenge, dig two graves.”

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  1. Michelle Janczarski

    A good article indicative of the author’s extensive experience in this field. The importance of receiving a detailed written legal opinion at the outset of the matter cannot be overstated.

  2. Moustafa Ismail

    I appreciate this road map,

  3. Colin McClelland

    Six simple rules, no grey shades, excellent advice. Will place in the "memory bank". Loved the last comment, you may win the battle and personal satisfaction, but do you ever win the war?

  4. Jenna Corbett

    Really? With VCAT, Consumer Affairs and the VBA all full of colluding Building Industry cronies, and not interested in helping consumers one bit

  5. Matt Campbell

    I agree with Stephen on the point of getting a legal opinion from the outset. Providing all relevant documents at the start will assist the lawyer in providing that legal opinion and could also have the added benefit of saving money spent on costs by being efficient and getting straight to the 'nitty gritty'.

  6. Mark Whitby

    So why is getting good legal help number one Stephen?
    Is that what happened with Metricon vs Hooper and Metricon vs Softley.
    I seem t remember that Metricon lost both cases… twice.
    Was this good legal first step advice to go to the supreme court?
    And was the experienced Metricon's Building Consultant any help?

  7. Mukesh shah

    All the points are perfect special emphasis should be given to point no 2,3,4and6 .an experienced consultant will turn the tables in our favour is very true.