You've made an application to VCAT to resolve your dispute. What next?
Building or renovating a house can be a very exciting time. It can also be a very stressful time, especially if the relationship between you and your builder does not work out and throughout the construction period it deteriorates.
With the current changes in the Building and Construction legislation, a party cannot make an application directly to VCAT. They have to apply to the Domestic Building Dispute Resolution Victoria (DBDRV) and, provided the conciliation at DBDRV is unsuccessful, they can then proceed to file their claim with the Tribunal. The DBDRV process is a separate topic, which will be addressed in a different article. This article will describe the initial process that the Tribunal requires the parties to comply with.
We are often asked “Can I go straight to Court”? If you are involved in a domestic type of construction, you must make an application to the Victorian Civil and Administrative Tribunal (VCAT). Courts have no jurisdiction (i.e. not allowed to hear) over domestic building disputes. An application supported by a document called “Points of Claim” has to be submitted to the Tribunal. The Tribunal then processes the application and then allocates a date for the parties to mediate. Mediation is a vital part of the process and you cannot dispose of that step and proceed directly to the hearing.
You may ask “Why do I have to mediate?” There are several reasons as to why the Tribunal wants you to meet with the other party for mediation. Some of them are:
(1) You may finalise the dispute before it gets nasty and extremely expensive;
(2) You may finalise your relationship with the other party largely on terms that you require;
(3) You have some control over the outcome of the matter;
(4) You do not have to waste your time instructing lawyers and not attending work while you need to be present at the hearing of the matter;
(5) You dispose of the stress of litigation.
The process of mediation is sometimes a tedious process however, if the parties are able to resolve the dispute by negotiation, it is well worth going through it. On the day of the mediation the parties will get in the same room with a mediator (and their lawyers) and, taking turns, present their position. They will then be separated into different rooms and the mediator will talk to each party separately. The mediator will seek offers from the parties and will pass on the offers, if instructed to do so, to the other party.
This to-ing and fro-ing can be unnerving, however, well worth if the parties resolve their differences.
If agreement is reached, the parties will sign a document called “Terms of Settlement” and the proceeding is finalised. If however, the parties are not prepared to settle, the matter will be listed for a hearing. Sometimes it cannot be avoided, however, we encourage all our clients to settle at mediation, if there is a possibility, to avoid further costs, inconvenience and stress.
Please talk to us if you have any questions in respect to the process of mediation or any other step in litigation. Call us at (03) 9555 7233.
This article provides information that is general in nature and is not a substitute for legal advice.