Will Disputes and Family Provision Claims in New South Wales
A complaint must first be lodged with NSW Fair Trading for all home building disputes. A complaint can be made online at NSW Fair Trading’s website here.
The dispute may be referred to a building inspector. The building inspector’s role is to:
meet the consumer and trader on site;
inspect the items in dispute;
assist the parties to achieve a suitable outcome; and
record the terms of any resolution reached by the parties.
The Building Inspector may issue a Rectification Order requiring the trader to carry out certain work.
The Order must be complied with by a given date. Builders wishing to rectify defects can’t be unreasonably refused access to the site by the home owner. In order to prevent rectification work being stalled, Fair Trading inspectors can include provisions in a Rectification Order that requires the home owner to pay any money owed under the contract.
Where the Rectification Order is complied with, and the consumer is satisfied with the outcome, the matter is finalised.
If the Order is not complied with, the trader may be subject to disciplinary action. The consumer may take other options including lodging a claim with the New South Wales Civil and Administrative Tribunal.
The New South Wales Civil and Administrative Tribunal “NCAT” can hear and determine applications lodged by home owners, traders and insurers about residential building work up to the value of $500,000 under the Home Building Act 1989. Home building disputes are heard within the Consumer and Commercial Division of NCAT.
Section 32 of the Civil and Administrative Tribunal Act 2013 gives parties’ the ability to appeal, seek permission, or ‘leave’ to appeal, to an NCAT Appeal Panel from decisions made in the Consumer and Commercial Division.
Appealing is not an ideal process when a party feels that there is a problem with the decision of the Tribunal.
A party can:
- Ask the tribunal to set aside the decision where:
- All parties consent to this course; or
- The decision was made in the absence of a party and the Tribunal is satisfied that the party’s absence has resulted in the party’s case not being adequately put to the Tribunal.
- Ask the Tribunal to set aside proceedings or a decision where there has been a failure to comply with provisions of the Act or the procedural rules in relation to commencement or conduct of the proceedings;
- Ask the Tribunal to correct an obvious error in a decision or the reasons for decision.
Examples of an “obvious error” include:
i. An obvious clerical or typographical error in the decision or reasons;
ii. An error arising from an accidental slip or omission;
iii. A defect in form; and
iv. An inconsistency between the orders and the reasons for decision.
It must be determined whether the party has the right to appeal, and this depends on the type of decision, of which there are three: final, ancillary or interlocutory. It is difficult to determine which one a decision may come under and ultimately it is decided by the Appeal Panel.