The System
What is the Law anyway?
The adversarial system of formal Dispute Resolution tends to transform the courtroom into a legal boxing-ring where the judge or members must ultimately determine who has landed the most blows. If we are concerned about reducing not only the financial cost but also the human cost of our justice system then we must first give importance to the discovery of truth, rather than legal performances. Australians deserve more than that.
Alternative Dispute Resolution (ADR) is obviously not appropriate in all cases nor is it, in itself, going to provide a solution to the escalating cost of justice.
ADR is just a simple more cost-effective means of resolution, and a more constructive method of dealing with conflict where people leave with their self respect intact.
Over the years I have met many builders, I was on the Contracts Committee at the HIA and Housing Committee at the MBA for many years and socially at the AIB and they all seemed decent blokes. They would want to do their best, they were competitive with each other and wouldn’t risk losing a referral over a trivial matter or delaying payment.
Human Cost
Before I get into the various options open to both parties consider the effect a building dispute will have on you, your relationships, (people will be sick of hearing about it) your partner and kids and of course the money.
The music in this clip will be how you’ll feel whilst trying to be the “Life and Soul of the Party”.
Do you think you can do that?
and will it be worthwhile?
A good overview can be found here: ***********
Getting the Facts
What are the possible solutions?
What work needs to be done or payment made in order that the project gets completed by the agreed date.
Late Completion is a breach of contract and rent may be payable for late completion regardless of an absence of a liquidated damages clause.
Weighing Up the Facts
Do an MS Project to see the best and cost effective way to achieve PC by near the agreed date.
If that opportunity has passed then the most cost effective way forward.
If damages are on the horizon then paying a bit more now will be cheaper in the long term.
Acting on the Facts
Complete any remedial work by the agreed date.
Make payment by the agreed date.
Do an MS Project realistically illustratiing when the handover will be and achieve it.
An adjudication under the CCA 2004 legislation may be the starting point (I hope not) if there is a large amount of money payable not commensurate with any alleged defect. The adjudicator’s fee is payable 50% by each party. Both are required to lodge a deposit with the Adjudicator. This application is best through the AIB and not Building and Energy or the Resolution Institute (RI) as the costs are capped. With the adjudicators appointed by the AIB (I am a member of both) you won’t get a celebrity barrister dealing with it and charging a fortune.
Sometimes all that is required is the issuing of a summons.
Then attendance at the Small Claims Tribunal where all you’ll need is my evidence sworn on the day.
The same applies to the District Court .
Application to the AIB to appoint an adjudicator under the CCA 2004 Legislation.
Attending to Lawyer’s correspondence. For the record Lawyers don’t like these little disputes (unless they’re friends of the family) and are keen to settle.
Then there’s Building and Energy. For the record Building Remedy Orders are issued by ex-police officers. That’s their training.
Then there’s attendance at the SAT where you don’t need a watch, you need a calendar.
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