The Legal Process

Preparing for Hearing of a Residential Building Dispute

The Consumer, Trader & Tenancy Tribunal (CTTT) is the preferred jurisdiction for determining residential building claims.

The CTTT has a jurisdictional limit of $500,000. Claims can also be heard in the Local Court, District Court and Supreme Court. However the defendant has the right to have residential building claims transferred to the CTTT.

The District Court has a jurisdictional limit of $750,000 and the Supreme Court has an unlimited jurisdiction.

Choosing the right court to have your case heard is important. Building claims relating to commercial or industrial property cannot be heard in the CTTT.

Whether your claim is heard in the CTTT or one of the other courts each jurisdiction is bound to determine your claim in accordance with law. The CTTT is not bound by the rules of evidence but the rules of natural justice do apply. In practice, this means that evidence should be prepared in much the same way as if prepared for court.

The procedures in the CTTT are more informal then the other courts however applicants still have the onus of proving their case on the balance of probabilities.

Building cases consist of legal issues and factual issues.

Legal issues are usually argued by lawyers. Factual issues are matters of evidence for a party and his or her experts to give.

Legal issues can relate to the terms of the contract, the nature of the contract, breaches of contract, termination and repudiation of the contract and the right to damages.

A case is only as good as the evidence that supports it.

In building claims, cases are won and lost on the quality of expert evidence. Your expert’s report must be in accordance with the rules of court and be independent and objective for it to be given weight by the tribunal or court.

It is a condition of admission of an expert report in court proceedings that the expert acknowledge that his or her primary duty is to the court.

You will give your evidence in the form of a statement or affidavit. This will tell your side of the dispute. Your affidavit will relate the facts in the first person. It will recite relevant conversations and will refer to documents and photos that support your case. It may also make admissions. It cannot contain opinions; only expert evidence can contain opinions.

Expert Reports

Care must be taken to ensure that your expert report conforms with the strict court or tribunal rules. Each court has rules setting out the form and content of reports.

If the report does not conform to the rules, the report may be rejected in part or wholly. This can have dire consequences for what may otherwise be a good case.

Please feel free to talk to us about this issue. Otherwise, ensure that the expert is recognised by a professional association or the OFT.

Checklist for preparation for a Residential Building Dispute

The following list is not necessarily exhaustive, depending on the particularities of your case but serves as a guide only:

• Do you have the written contract?
• Do you have the HOW insurance Policy?
• Do you have an expert report?
• Does it conform with court rules?
• Have you or the other party terminated the contract?
• Has the matter been referred to the OFT for pre-hearing intervention?
• Has the other party made any admissions?
• Have you prepared a witness statement?
• Have you prepared corroborative witness statements?
• Do you hold relevant documents, including invoices?

At Baker McDonell we can assist you to prepare your case for hearing in the CTTT or appropriate court, including reviewing expert reports and advising on evidence and preparation of pleadings.