Residential Building Disputes – Consider all Alternatives

21/02/2018

There are thousands of disputes relating to the quality of building works in particular concerning the construction of residential property including units, apartments, townhouses, duplexes, houses.  The Home Building Act 1989 deals with obligations and rights of the parties including the Builder and Owner.

Often disputes arise out of a claim that the Builder has not completed the building works or a claim that the works are defective.  Often building disputes relate to a claim that the owner has failed to pay for the building works.  These often involve difficult factual matters.

In disputes relating to the Home Building Act many cases are appealed.  Surprisingly there are many appeals which are successful for one reason or another.  The best protection against a successful appeal is for proper preparation of the case at first instance.

The preparation requires knowledge of the law, how the Tribunal works and processes cases and careful consideration of the requirements to be successful.  This is despite the best intentions in setting up the Civil and Administrative Tribunal (NCAT) that the process would be simple, cost efficient and effective.

Since the Home Building Act commenced there have been many amendments and particular including amendments in 2014.

NCAT in part is a Tribunal without Lawyers being involved.  Leave is usually granted for Lawyers to act for the parties to the litigation when the dispute is considered complicated.

It is difficult for a person not engaged in litigation at NCAT on a regular basis to be able to prepare the documentation and evidence required to satisfy the “strict” standards required to prove ones case or to defend a case brought against you.

There is significant commercial judgment to be considered in bringing a case or defending the claims that have been commenced.

There is a real question as to what is the adequacy of evidence to prove a fact.

In addition to prove an “opinion” requires appropriate expert evidence.  For example, it is a matter of opinion as to whether work is defective and in those circumstances any evidence to be relied upon by way of an appropriate expert.  We refer to our article dated 11 May 2017 dealing with the need for expert evidence to prove opinion.

Where there is a contest between two “experts” it is critical to your case that the expert engaged on your behalf is accepted.  Do not think that an “expert” who agrees with everything you want to be said is good for your case.  If that expert’s opinion and evidence is not accepted then your case will suffer greatly if not terminally.

We at Watson & Watson know many “experts” and those who profess to be “experts”.  We are aware of many good experts whose evidence is generally accepted by the Tribunal or Court dealing with your matter.

The factual matters (as distinct from the opinion evidence of experts) must be assembled and produced before the Tribunal in the appropriate form.  Expert evidence is often based upon the factual matters and assumptions that have been provided to the Expert.  Those factual matters and assumptions must be proved separately.

Further a case will also depend upon the application of the appropriate law to the factual matters.

If a Court or Tribunal makes an error in the application of the law this would leave an opportunity available to Appeal the decision.

Not all matters that are decided incorrectly are appealable.

On the other hand if one is successful at first instance, however the decision when critically looked at is one that there is a good prospect of a successful appeal one needs to very carefully consider your options.

The outcome of a successful appeal against a decision in your favour at first instance can be catastrophic.

One example is an Owner (who has assets) may be successful against a Builder at first instance however the Builder appeals the decision.

In such circumstances if the Builder is insolvent or likely to be insolvent the Owner needs to carefully consider his or her position.  If the Owner is successful the Owner might not recover his or her verdict.  On the other hand if the Builder is successful on the appeal then it is likely that the Builder will receive a cost order in its favour in relation to the original hearing and in relation to the appeal.  Those costs will be payable by the owner and if the owner has sufficient assets (which includes the property) then those assets are available to satisfy those orders.

Great consideration must be given to possible outcomes legally and commercially. 

Often we are asked to advise in relation to an appeal by a party who has received an adverse decision at first instance or a party who has received a decision in his or her favour at first instance.  This is often by way of obtaining from us a second opinion having regard to the evidence and outcome at first instance when the matter was undertaken by Solicitors, Counsel and with experts other than Watson & Watson.

If you have received an outcome which is different to your expectation and you wish to obtain a second opinion please do not hesitate to contact Richard Watson or his Personal Assistant Shereen DaGloria to obtain advice in relation to your prospects on an appeal and to discuss your concerns.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 02 9221 6011.