We set out below a general overview of the litigation process in the event that the dispute with the building professional or developer cannot be commercially resolved prior to commencing proceedings.
Alleged Defects Identified
Broadly speaking, a defect must result from defective design, defective or faulty workmanship, defective materials, or a failure to comply with the structural performance requirements of the National Construction Code.
Under the Home Building Act 1989 (NSW), there are two types of defects, major defects and non-major defects.
Read more – Building Defect Claims FAQs: What is considered a defect?
Retaining Home Building Dispute Lawyers
We will advise you on a number of matters including:
- whether you have reasonable prospects of successfully making a claim against the building professional or developer;
- what evidence (lay and expert) is required to make out the claim; and
- our recommendations as to the resolution strategy we ought to be instructed to execute to attempt to commercially resolve the dispute.
Subject to having reasonable prospects of success, we will, on your behalf, commence proceedings in the New South Civil & Administrative Tribunal or Court against the building professional or developer or in Court depending on the quantum of the claim.
We, on your behalf, will prepare all pleadings and obtain the necessary evidence.
At the first direction hearing, the Tribunal or Court will set down a timetable for the exchange of the parties’ pleadings and evidence.
Parties’ Exchange Pleadings and Evidence
During the course of the proceedings the parties will exchange pleadings and their evidence.
For example, in response to your originating process, the building professional or developer will file and serve a defence and will have an opportunity to serve evidence in response to your evidence.
Generally speaking you will have a further opportunity to serve further evidence in reply before the hearing.
Work Orders & Rectification
Rectification of the alleged defective building work by the responsible party is the preferred outcome. This means that the Tribunal or Court prefers to order the building professional to return to the property to rectify the alleged defects. These orders are known as Work Orders.
We use a number of strategies to bring the building professional back to the property to rectify the alleged defects and ensure the rectification works have been undertaken property.
If the rectification works are completed properly, we consider this to be a great outcome because it often means that legal costs are saved in having to prepare for and attend the final hearing.
If all the alleged defects have been rectified satisfactorily in accordance with the Work Orders, the litigation process can be finalised.
In the event that the Work Orders have not been complied with or Work Orders are, for whatever reason, not an agreed or suitable course, the claim will proceed to a final hearing.
At a final hearing, the parties present their evidence, their witnesses are cross-examined and the parties’ legal representatives make legal submissions. Depending on the complexity and nature of the dispute, these hearings can last from between a few hours to a number of weeks.
Following the final hearing, the Tribunal Member, Judge or Justice will reserve their decision and provide written reasons for his or her determination or judgment.