Building Dispute Resolution: A Comprehensive Guide for Contractors and Homeowners
Q1: Established Business Dispute Resolution Procedures
- Litigation: A case brought to court where the judge makes the decision.
- Arbitration: The parties present arguments and evidence to an independent third party, the arbitrator, who makes a determination.
- Conciliation: The conciliator helps people in a dispute to identify the disputed issues, develop options, consider alternatives, and try to reach an agreement.
- Mediation: The mediator assists the people in dispute to identify the disputed issues, develop options, consider alternatives, and try to reach an agreement.
Q2: Recording and Record Keeping Procedures for Dispute Resolution
a) External Dispute Resolution Processes
- Who: Parties involved in the dispute, witnesses
- What: Documentation of the dispute, including notes, minutes, and evidence
- When: Throughout the dispute resolution process
- Where: At the location of the dispute or a neutral location
- Why: To provide a record of the dispute and its resolution
- How: Written notes, audio recordings, or video recordings
- Have a witness: To provide an impartial account of the dispute
b) Internal Dispute Resolution Processes
- Always have witnesses: To ensure transparency and accountability
- Done confidentially and discretely: To protect the privacy of the parties involved
- Record stuff and make sure other people can see you: To provide evidence of the dispute and its resolution
- Written notes: To document the key points of the dispute and its resolution
Q3: Accessing External Mediators and Conciliators
External mediators and conciliators can be accessed through organizations such as the Master Builders Association for building disputes or the Australian Institute of Architects for design disputes.
Q4: Typical Building Business Disputes
a) Examples of Typical Building Business Disputes
- Money
- Time
- Quality
b) Reasons for Disputes
Fraudulent activities, such as unauthorized payments or misrepresentation of services.
c) Parties Involved in Disputes
- Subcontractors
- Owners/Clients
- Suppliers/Manufacturers
d) Dispute Resolution Processes for Disputes
- Coffee shop conferencing
- Mediation
- Conciliation
- Arbitration
- Litigation
Q5: Identifying and Clarifying Issues in Waterproofing Residential Disputes
Identifying Issues
- Flood tests/tanking
- Infrared technology
Clarifying Issues
- Consult the subcontractor
- Expert advice through building consultants
Q6: Unacceptable Dispute Resolution Processes
- Blackmailing
- Going on strike
- Threats or violence
Q7: Consulting with External Conciliators
- Seeking expert advice
- When both parties disagree with the mediator’s options or alternatives
Q8: Relevant Statutory Laws for Dispute Resolution
- Home Building Act: Deals with licenses, contracts, and insurances.
- Security of Payment Act: Deals with payment disputes between principles, contractors, subcontractors, and suppliers.
Q9: Dispute Resolution in Accordance with Common Law
The three-tier court system in NSW for litigation:
- Local Courts: Cases up to $60-72k, Magistrates adjudicate, Civil matters, Mental health matters, Family Law matters.
- District Court of NSW: Cases up to $750k, Judges adjudicate, Civil and Criminal matters are heard.
- Supreme Court of NSW: Cases over $750k, Single Judge adjudicates, The most serious Civil and Criminal Matters.
Q10: Court and Charges for a Builder in a Matter Involving a Death on a Building Site
a) Court
- Supreme Court
b) Charges
- Manslaughter charges
Q11: Parties and Proceedings in a Disputed Development Application
Parties will find themselves at the Land and Environmental Court, where the court will decide whether or not the development is approved by overriding the local government’s decision.
Q12: Impact of the Security of Payments Act on Dispute Resolution
The Security of Payments Act sets out rules and procedures for builders and subcontractors regarding payments, claims, and withholding payments. These rules and procedures can help resolve disputes.
Q13: Use of a ‘Scott Schedule’ in Disputes over Incomplete Work
A ‘Scott Schedule’ allows parties to itemize defective and incomplete work that is the subject of a home building dispute.