Civil Litigation

What is a Dispute?

A civil dispute can be stressful, cause unnecessary delay and financial loss. If not managed quickly, a dispute can become protracted and may need to be resolved by taking legal action or proceeding through a tribunal or court.

Disputes usually relate to commercial claims or claims for defective or incomplete building work, delays, unanticipated or unexplained price increases, variations, insurance claims and non-payment by a homeowner.

Residential building work in New South Wales is governed by the Home Building Act 1989 (NSW) and associated Regulations which prescribe minimum building standards, consumer protection provisions and statutory warranties for all home building work.

Tribunals- NCAT

Applications to NCAT may be lodged by homeowners, building contractors and insurers regarding a ‘home building’ matter, which includes residential work performed by a building contractor or tradesperson such as a new home, extension, renovation or external work such as swimming pools and retaining walls. In NCAT proceedings, rectification of the defective building work by the party responsible is generally the preferred outcome.

A party to NCAT proceedings is not automatically permitted to be legally represented and must request permission before a matter is heard or at the hearing. Permission to be represented is generally allowed if:

-proceedings in the Home Building List are more than $30,000;

-the other party is a lawyer or represented by a lawyer;

- the other party is a government agency;

-the Tribunal is satisfied that a party will be at a disadvantage if not represented;

- the Tribunal believes that the matter involves complex issues.

Generally, claims for breach of statutory warranties must be made within six years for major defects and within two years for other defects. Otherwise, for claims regarding the supply of building goods or services, applications must be lodged within three years.

Dispute Resolution

Conciliation or mediation is often used to resolve the matter before proceeding to a tribunal hearing. This is a private process whereby a tribunal member encourages the parties to reach an agreement and binding terms of settlement prepared.

Ideally, civil disputes may be managed through sensible and practical negotiation between the parties. However, for many reasons a resolution is not possible as communication breaks down, or the parties are uncertain (or disagree) about their legal position.

See our 'Alternative Dispute Resolution' services.