When talking to your builder doesn’t work anymore, you would have to present your case by undergoing the litigation process. A good construction litigation lawyer can help represent you in court so that you get to enforce your rights.
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Litigation is a type of legal process where the resolution is in the hands of a jury and judge. This is done within courts and tribunals, which has different sets of rules and laws it follows.
It is also a form of building dispute resolution for the more serious building disputes. These happen when initial negotiations do not work out, therefore needing a formal setting such as a court.
Court cases can take up your time and money. You have to be wise enough to quickly solve the dispute as early as you can. Or, you have to be prepared to defend your claims and enforce your rights in court.
While resolving a building dispute, enforcing your rights to a court through litigation should become your last resort. You shall have exhausted all means to make amends with your builder before deciding to go on a court trial.
If any of the alternative solutions to resolve building disputes are helpless to your case, then you better prepare. You must be prepared to present your case in court will all of your supporting documents. You would have to enforce your rights to a favourable resolution.
A court decision is very powerful since it is decided depending on what the laws say and the evidence present. It is an impartial view of the situation, so it may be in your favour or not. It would depend on how well you state your case and know your rights on the relevant laws.
It also gives you the platform to address the issue a more public avenue. The problem gets solved in a lawful way. So when it is in your favour, you are sure to get back the compensation you deserve.
But, it can also work against you. You might end up spending more money, and the conflict might heat up when it could be just solved in its earlier stages.
So in applying for litigation, make sure that you exhausted all means to reach your builder. You must exhausted options like initial talks or in writing a letter of demand before going to court.
The litigation process could vary from each Australian state to another, but it follows a simple structure. The things that can happen in each of the stages also depends on the gravity of the situation. These steps are:
This is a type of contract with a fixed contract price and duration. While the details of the contract should be fixed even before its execution, you can still add variations.
After filing your claim and have shown it to the other party, you wait for a written response. They would have to respond within a certain number of days stated in the claim and give out their defence. Or else, the case will be further dealt with.
The case would be then dealt through a meeting arranged by a tribunal. This is called as mediation or a case management conference, where clarifications to the case are raised. It also seeks to look for a solution to the problem through a mediator, before going to the actual hearing.
If the problem is solved and the two parties come up with a mutual agreement, then there is no need for further legal. But if they don’t, then the court hearing happens.
This is where you and the other party would have to state your case to a judge and jury. The hearing may have a series of preliminary trials before the main hearing to better have clear look on the dispute.
The main court hearing would be the deciding factor for your case. So, it is important to state your case with relevant proof, so you could better enforce your rights on the dispute. And as the one filing the claim, you would have to present it first.
After the main hearing, the judge and the jury would have to come up with judgement after looking at the cases of the two parties. You can know the decision immediately after the hearing or a few days after through a written notice.
If the decision is favourable, then problem solved. But if not, you can always appeal it to a higher court or tribunal.
In applying for litigation, you would need to pay a certain application fee depending on the court or tribunal. You would also need a lawyer to represent you in court. Lawyer fees may vary depending on your negotiations with your lawyer. But as a client, you have the right to:
In addition to these costs, you would have to give your time to attend to all the court hearings too.
Contracts Specialist could represent and help you with any legal process on building disputes such as litigation. Our construction lawyer knows how NSW courts and tribunals work and they can guide you through the legal processes required.
They can help you in the legal process of both Fair Trading and the NSW Civil and Administrative Tribunal (NCAT). So that, you get to solve the problem and enforce your rights as efficient as you can.
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