Building Litigation Support
​​In the realm of construction and real estate, disputes and litigation are not uncommon. From construction defects to contract disagreements, navigating legal matters in the building industry requires specialized knowledge and expertise. This is where litigation support expert witnesses step in. In this article, we delve into the crucial role these professionals play in supporting the resolution of building disputes and ensuring justice in legal proceedings.​
"I am in dispute with my builder, how can I resolve my building matter
without legal action?"​​
​​Almost my default, through the process of building your new home, you form a relationship with your builder, or in some cases the building supervisor.
As construction of your new home progresses that relationship should be both enjoyable and rewarding as your new home evolves.
On occasion the complexities of building can cause your relationship with your builder to unravel! eroding your confidence and causing uncertainty. Where do you turn for support if you find your client/builder relationship falling into dispute? In some cases you can feel like your builder 'owns the build' and concerns you have are going unheard. Often you can only communicate with a representative of the 'builder' frustrating your attempts to resolve your concerns.​
Rectifying this situation as soon as possible is in the interest of all stakeholders,
most importantly yours, the Home Owner!​​​​​
Understanding Litigation Support - Expert Witnesses
Litigation support expert witnesses are seasoned professionals with extensive experience and expertise in various aspects of the building industry, including architecture, building condition, building defect identification, construction management, and building codes. They are called upon to provide impartial, expert opinions and testimony in legal proceedings related to building disputes, serving as an effective, easy to understand bridge between technical complexities and legal interpretations.
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Roles and Responsibilities of the Expert Witness
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Expert Analysis: Litigation support expert witnesses conduct thorough analyses of building-related issues at the heart of legal disputes, such as construction defects, design flaws, building code violations, or project management failures.
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Evidence Presentation: They compile and present evidence, including reports, documentation, visual aids, and expert opinions, to support their findings and strengthen the client's case in court.
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Expert Testimony: Expert witnesses testify under oath in court proceedings, presenting their opinions, analyses, and conclusions to help judges and juries understand complex technical matters relevant to the case.
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Consultation and Strategy: Beyond testimony, they provide valuable consultation and strategic guidance to legal teams and other, helping them navigate the intricacies of building-related issues, Building Code(s), Relative Building & Workmanship Standards.
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Alternative Dispute Resolution: In addition to traditional court proceedings, expert witnesses may participate in alternative dispute resolution methods such as mediation or arbitration, facilitating constructive negotiations and settlements outside the courtroom. Your Litigation support - expert witnesses offer specialised knowledge and expertise in a wide range of building-related disciplines, including but not limited to:
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Architecture and design
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Identification of Building Defects
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Building maintenance issues
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Structural engineering
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Construction management
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Building codes and regulations compliance
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Workmanship standards
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Building materials and technologies
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Environmental compliance and sustainability
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Benefits of Litigation Support Expert Witnesses:
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Technical Expertise: Expert witnesses provide in-depth technical knowledge and analysis to help unravel complex building issues and clarify key points for the court / ruling authority.
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Impartiality and Objectivity: Their impartial and objective perspective adds credibility to their testimony, enhancing the persuasiveness of their arguments in legal proceedings.
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Case Strengthening: Expert witness testimony can significantly strengthen a client's case by providing authoritative opinions and evidence-based analysis to support legal claims or defences.
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Cost-Effective Resolution: Resolving building disputes through expert testimony can often lead to faster, more cost-effective resolutions compared to prolonged litigation processes.
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Risk Mitigation: By identifying and addressing building-related issues early in the legal process, expert witnesses help mitigate risks and liabilities for all parties involved.
Conclusion: In the complex landscape of building disputes and litigation, the expertise and testimony of litigation support expert witnesses are invaluable assets. Their role in providing objective analysis, expert testimony, and strategic guidance contribute to fair, efficient, and informed resolution of building-related legal matters. By leveraging their specialised knowledge and experience, parties involved in building disputes can navigate legal proceedings with confidence and integrity, ultimately achieving just outcomes that uphold the principles of fairness and accountability in the building industry.​​​​​​​​​​
How can I resolve my Building Dispute and avoid legal action
This article is in no way intended as legal advice we are not lawyers. We are however expert industry consultants with an excess of forty years industry experience. The information offered here is presented in the hope of assisting you by sharing knowledge and information you may not be aware of.​​
Historical documented examples are not hard to find where Legal and Litigation Costs in a protracted building dispute have exceeded the actual rectification costs of defective or substandard building work.​
​"What is my most effective course of action to resolve my Building Dispute?"Navigating a building dispute can be overwhelming and frustrating, the builder seems to know everything about the build, and we as home owners don't seem to have any support to have our building concerns addressed.​
Reaching out to an Expert Witness - Building Consultant gives you the tools and confidence to navigate your building dispute to achieve a desirable outcome​.
The Process:
- Consultation Meeting with you to discuss your building concerns
- Site Inspection
- Building Report
- Actionable sequential resolution process plan.
- Pragmatic Meeting with your builder.​
The completion of the above process sees you in a much stronger position to negotiate a fair and acceptable outcome with your builder and likely avoid further disputes arising.
Your building report contains a wealth of verified information about your build including:
* Details around your specific items of concern
* Holistically detailed building report
* Reference of any defective or substandard works to the appropriate Building Code, Australian Standard and Practice Notes.​
With this valuable information at hand and the personal professional support of Peter at ConsulTec to negotiate with your builder, empowers your position greatly to resolve your building matter. The evidence based content of your report puts your builder on notice to comply with his lawful obligation and responsibilities as Registered Building Practitioner (RBP) - Victorian Building Authority.​
Achieving resolution by exhausting all avenues of negotiation in your building matter is the most desireable and cost effective strategy you can employ, prior to engaging in expensive litigation.​
"What if we can't achieve resolution of our Building Dispute by Negotiation?"
In the event you are unable to resolve your dispute or have your building concerns addressed
Your ConsulTec Building Report remains a valuable asset as admissible evidence with expert witness support if you proceed to:​Conciliation
Arbitration
VCAT
Tribunal
DBDRV
While it is always in the best interest of both parties to avoid litigation, ​In the event you are unable to reach resolution amicably, you always retain the option to engage a lawyer.
Hoping the above information has been of assistance to you.If you would like further information around an Expert Witness Building Report Melbourne or Expert Witness Report cost / fees, please enquire below.​
You can read more on this topic on our Dilapidation Reports page
VMIA Domestic Building Insurance Claims
You’ve decided to lodge a claim
Direct steps to Lodge a Claim with your Domestic Building Insurance
1. Notify your builder
2. Secure the site
3. Review your contract documents
4. Contact your RBS
5. Detail your items of concern
6. Engage an Independent Building Consultant
7. Submit your DBI-VMIA Claim
8. Engage your new builder
9. What if my VMIA Claim is rejected?
10. More Help with the DBI Claim Process​
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Claim Process In More Detail
1. Notify your Builder
Notify your builder in writing you intend to lodge a consumer claim with your Domestic Building Insurance (DBI) – Victorian Managed Insurance Authority.
Even though you’ve exhausted your dispute resolution process, Taking this action puts your builder on final notice prior to the authorities getting involved, it just may trigger him into a positive response.
It also confirms to your builder you are taking control of your building site.
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2. Secure the site
You need to ensure there is temporary fencing protecting your site. You may be able to make an arrangement with the hire company of any temporary fencing already in place, or if required source a temporary fencing company to install for you.
If possible-practical, your new home is securely locked.
Insurance. At this point it is unlikely the builder’s ‘all risk’ insurance will still be in force at your property. Examine your insurance options to cover your property.
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3. Review your contract documents
Review your contract documents including plans and specification, identify any items of work on your property.
Maintain a record of everything in writing, your builder concerns, significant conversations (builder), dealing with the authorities as proceed.
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4. Contact your RBS – Registered Building Practitioner
Your RBS is the person who issued and is executing your building permit to date, apart from informing him you’re in the process of engaging a new builder, he will advise you of the status of the permit and any outstanding items of works, ie: ‘Not Approved’ Inspection Notices
5. Detail your items of concern
Document as meticulously you can, each area of concern you have about the building, items you consider a contract breach, non-compliant, defective or substandard workmanship.
Recording relevant dates is important along with photographic record.
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6. Engage an Independent Building Consultant
Contact your ConsulTec independent Building Consultant.
Working collaboratively with you we will inspect your property and compile a ‘Defects and Stage Report” also known as a ‘Building Status Report.
Your Report is an important and effective asset to you as you proceed through the claim process and will enhance your peace of mind around the ‘status of your build’ though expert analysis and recommendations
Personalised support from Consultec alleviates the mind mangle of ‘what and where to from here’ ratifying each step in the process with you to expedite your new home to completion.
For all stakeholders Your Building Report is Critical:
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Your Report confirms to the VMIA, all builder defects requiring rectification,
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scope of works to completion,
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Items work in breach of your contract
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All existing and / or non-compliant items of work
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It informs your new (third party) builder you re-contract with to clearly identify:
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Confirmed defects for rectification
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Scope of Unfinished Work
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It also documents the existing works completed, ensuring they are not included in his (third party builder) Builders warranty
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Your Financial Institution
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As your final build price will likely vary from the original builder’s contract price, the building report combined with the third party builders contract price forms a transparent package when dealing with your financier.
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By accurately and comprehensively documenting the ‘Scope of Works’ enhances your prospects of gaining the competitive price for the remaining works, ie: a less than reputable builder may include cost of works for items of works already completed
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7. Submit your DBI-VMIA Claim: Domestic Building Insurance -Victorian Managed Insurance Authority
Please be aware, for your claim to be accepted your Builder must be categorised by ONE of the following
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Has Died
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Has become insolvent (bankrupt)
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Has disappeared
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Ignored a or failed to comply with a VCAT – Victorian Civil Administrative Tribunal
Examine your building documents file (or building permit package you should have received form your RBS) to see if you can locate your ‘DBI Warranty Insurance Certificate.
If you cannot locate the certificate, search https://www.dbi.vmia.vic.gov.au/Property-Search.
With your Certificate, Building Reports & Building Documents go to the DBI Portal and submit your claim https://www.buildvic.vic.gov.au/ClaimsPortal/LoginClaimant.
The process then becomes self-explanatory
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8. Engage your new builder
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This stage requires some energy if your build is only partially complete, ConsulTec has a series of assistance channels for support if you require.
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When calling for your Tenders – Quotations, it is ensure you provide the competing builders with a copy of your building report.
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Take care when you examine and compare you’re your third party builder quotes to ensure they are clear and concise about the scope of works to complete your new home.
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9. What if my VMIA Claim is rejected?
Take you Claim / Dispute to:
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DBDRV – Domestic Building Disputes Resolution Victoria http://www.dbdrv.vic.gov.au/
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Consumer Affairs – Victoria’s Building Disputes – Defects and Delays https://www.consumer.vic.gov.au
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VCAT – Victorian Civil Administrative Tribunal. http://www.vcat.vic.gov.au/
The reader may be critical of my inclusion of VCAT down the list of options.
This is definitely not legal advice, it is only my opinion from my years in the building industry and my observations, by submitting your DBI-VMIA Claim, the regulatory authorities will apply ‘pressure to comply’ to your original builder that you have been unable achieve effectively to date. If your builder hasn’t died, disappeared or become insolvent, there remains the option for him to respond and fore fill your contract, born from his own interest to avoid his Builders Licence from being compromised.
VCAT is experiencing extensive time delays to have cases heard, Google will tell you the current wait times! And a budget is required to present a case employing Lawyers, Barristers….
Historical view of Victoria’s Building Industry Control and Regulation
Informative Topic (By Peter Grundy)
I am in complete agreement with the University of Melbourne’s previously listed information article by Dr Paulo Vaz-Serra, outlining what can be viewed as a looming crisis in the manner Victoria’s building industry manages and regulates itself. If there was ever a time for ‘buyer be ware’, it is now for Victorian new home buyers.
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In quoting Dr Paulo Vaz-Serra’s take on the current state of the industry: “Australia plans to build an extra 1.2 million quality homes in five years, but we don’t have the people or regulatory processes to achieve this”
Having been actively involved in Victoria’s building industry as a self-employed registered builder for more than forty years, I have witnessed and been a part of the evolution of the Sectors various government and associated regulatory bodies responsible for:
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Builder Registration
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Home Owner’s Warranty (Domestic Building Insurance-DBI)
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Builder Compliance
My initial ‘Builders Registration’ and the inception of the first consumer protection (for domestic building works) was with the Housing Guarantee Fund Limited (HGFL) Victoria, established in 1984.
The Progressive Building Regulatory Bodies since the HGFL Days:
Housing Guarantee Fund Limited (HGFL)
Building Control Commission (BCC)
Building Practitioners Board (BPB)
Victorian Building Authority (VBA)
(soon to be further revamped to the Building and Plumbing Commission - BPC)
Now we have a building industry that is controlled more by an insurance company ‘Victorian Managed Insurance Authority – (VMIA) via the Domestic Building Insurance – (DBI), than the Regulatory Body Victorian Building Authority.
This performance history of the regulatory bodies is not confidence inspiring for Victoria’s New Home buying and domestic building consumers, more so when you consider the following industry news excerpts:
Victorian Building Regulatory Bodies – Historical Articles
Informative Topic 3. THE AGE Nov 2012
Credit & Thanks to Richard Baker and Nick McKenzie
The demise of the Victorian Building Commission comes after The Age this year exposed a culture of extravagant spending that in part led to a $3 million budget shortfall, conflicts of interest involving senior commission officials and a failure to act on warnings that unregistered inspectors were approving work on thousands of homes.
And
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The abolition of the commission comes nearly 12 months after a damning Auditor-General's report found that 96 per cent of 401 building permits it examined that were issued by private and council surveyors failed to meet basic standards.
You can read the Entire Article at https://www.theage.com.au/national/victoria/shake-up-in-building-industry-20121128-2aep9.html
WOTTON KEARNEY 24 October 2024
Thanks & Credit to : Andrew Brennan, Sarah Metcalfe, Nick Lux and Jordan Bova
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The Victorian government will abolish and replace the Victorian Building Authority following an independent review that found significant management and cultural failures.
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A new regulator, the Building & Plumbing Commission, will be created by merging the Victorian Building Authority with other agencies, offering expanded powers to enforce building defect repairs and manage disputes.
And
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Released today, the ‘Victorian Building Authority – The Case for Transformation’ report (Report) found that there was “no doubt that the VBA’s management and culture failed consumers”.
The failures of the VBA identified in the Report included:​
- Duplicated, delayed, lost or ignored complaints
- Conducting no to very few technical inspections
- Complainants being told to provide their expert reports for the VBA’s review
- Focusing only on practitioners and issues identified by complainants and not addressing others
- Referring complaints to other agencies, and
a dismissive culture towards complainants.
