More often than not it will be the Building Owner that makes Application to the Tribunal for resolution of building defect and/or payment issues.

The process can be generally described, as follows:

Application

The Building Owner, Builder and/or other parties are named in the Application and the dispute is then required to be formalised by way of a legal statement, generally known as Points of Claim. The document will make reference to the domestic building contract and it is required to define by way of summary the issues in dispute, such as, what work is alleged to be defective and/or what monies are claimed due.

Mediation

Most matters are referred directly to Mediation at first instance. A standard mediation is held at the Tribunal rooms and a Tribunal Member/Mediator as appointed to the matter to facilitate discussions between the parties. Our experience in these matters has shown that the majority of disputes are resolved at this stage. It is important to prepare and for the client to by fully appraised of their legal standing, prior to the mediation date to ensure the best results.

In some cases, much correspondence can be entered into between the parties’ solicitors to define the parameters of the dispute. It is our general practice to provide clients with precise estimates or a cap on legal costs for each stage of the proceedings which ensures that solicitor and client alike maintain a strong focus on the key issues.

As a final note on mediation, we further make it our practice to devise a strategy for the conduct of mediations so that account can be had of the facts in issue, the personalities of the disputing parties, as well as, the constraints on costs and preparedness of the builder to return to site, versus receipt/payment of monies by way of compensation.

Directions Hearings

These hearings are generally of an administrative nature to set down and ensure compliance with a timetable for the exchange of documents, reports, position statements, Points of Claim and Defences.
Compliance with procedural VCAT orders is quite strictly maintained by the Tribunal and opposing parties alike.

The VCAT structure has now developed to the stage where most parties are legally represented.

Compulsory conference

This stage of the proceedings is unique to the Tribunal. The Compulsory Conference is similar to a Mediation, but for the fact that the Tribunal appointed Mediator takes a more active role in directing the parties, including advising on recommended terms of agreement and the likely outcome of the case should it proceed to a hearing. The Mediator essentially states their opinion by saying words to the effect of, “if I was called to decide the case upon the information before me, the outcome would be…”.

This process has the advantage of bringing the dispute to a head, but without the cost consequences of a hearing.

As with Mediation, the majority of matters that proceed to a Compulsory Conference resolve by way of an agreed settlement.

Hearing

A Tribunal hearing is akin to the traditional Court hearing whereby each party is called to give evidence and a Tribunal Member, acting in a capacity not unlike a Judge, hands down their decision.

Generally, each party prepares and exchanges Witness Statements and/or Expert Reports. In addition, there are some proceedings which are peculiar to the VCAT such as the practice of “Hot Tubing” Expert Witnesses to formulate and agree on a common position between the parties.

As to the matter of costs, it is the general position that the losing party will be required to pay the costs of the successful party on a scale- hence the actual amount of legal costs incurred is not normally received in full.

VCAT Legal Costs