Formal Dispute Resolution
Since the advent of the CCA 2004 formal dispute resolution will always be client driven as a result of a desire to re-negotiate the contract price The Building Commission’s role is administrative and they can only make decisions on the information before them. An illustration of this problem can be seen below where the issue of a BRO was against the wrong party. The SAT’s role is judicial taking into account both evidence and probability. Therefore, it is the forum for determining the facts of the case. Especially, relevant circumstances which may not be evident in the contract documentation.
The client’s initial enquiry to the Building Commission was in August 2015.
The building complaint was formalised early 2016.
The BRO was issued in
The Building Commission
The BRO was set aside by the SAT in late May 2017.
So you can see why it’s imperative to
receive outstanding payments whilst these
formalities are progressing.
The State Administratice Tribunal
The first SAT hearing will be to establish the facts and see if the case is ready to proceed to a formal hearing. Evidence requirements and most of all the expert witnesses attending. These will also establish the likely duration of the final hearing. The first hearing may also grant access to the builder to attend to the items of complaint. The order of a Scott Schedule may be necessary to determine quantum if there is likely to be a monetary award. If you are not familiar with a Scott Schedule here is one from the net:
The amounts alleged by the client usually exceed the Builder’s that is why the expert witness is important. They are usually required to agree on the remedy and costs prior to the final hearing.
Some damages claims may even exceed the contract price.
Anyone who has run the gauntlet of the BC and subsequent BRO review request by the SAT will grasp how Australia can clock up $7 billion p.a. and all because a client doesn’t want to pay the agreed contract price.
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