Advice on Taking a Builder to NCAT

suchan on 06/06/2023 - 17:50

Hi OzBargainers,

Hoping for some advice / tips on how to prepare for an NCAT hearing.

Earlier in the year I got the keys to my current place after my builder has finished construction.

We have since observed a few things that led us to decide to take them to NCAT:
* Defects that we raised prior to handover and builder promised to fix but didnt eventuate
* Defects and exclusions that we raised within the first 90 days of warranty but not yet fixed
* Builder essentially ignored (possibly blocked) our calls / emails / texts for last two months
* Raised with NSW Fair Trading - also ignored calls and emails - advised to proceed straight to NCAT

We have been given a hearing date which is at the end of this month and we are trying to prepare for the hearing. Hoping to tips / advice if anyone's been to such hearing before and what you have done to best prepare for it

Thanks

Home & Garden

Comments

  • Protractor on 06/06/2023 - 17:57
    +4

    L-A-W-Y-E-R ……lawyer…..

    • Dundundunnnn on 06/06/2023 - 20:34

      NCAT prevents legal representation for either party.

      • Protractor on 06/06/2023 - 20:38
        +2

        Maybe in attendance at NCAT, but surely not legal advice. Makes no sense. Most builders have a lawyers ear.

        • Dundundunnnn on 06/06/2023 - 20:40

          Correct. No attendance or participation unless the member approves it, which is rare. NCAT is intended to be a low cost process man to man.

  • orangetrain on 06/06/2023 - 18:33

    I would check notices to cancel ABN/ACN on a daily basis

  • zangbangapda on 06/06/2023 - 18:33
    +3

    Hi, im sorry to hear of your situation. A lawyer not worth the cost for NCAT at this stage, unless they are major structural defects.

    NCAT has preference to order the builder to fix the problems by the certain date, and monetary compensation is more of a last resort, especially for minor defects. So be prepared to have the builder back.
    If the builder fails to fix the problem by a certain date as ordered by NCAT, their builder licence will not be renewed. so you can see this is usually a strong motivation.

    Make sure you prepare a list of issues and have good photos for NCAT, and stick to facts about the defects as much as possible, without focusing too much on the unanswered emails and calls.
    It might take longer than expected, there will be a couple of mediation rounds. Sounds like this is the first appearance date, so I wouldnt expect it to be a final hearing. Down the track you might want to consider an independent building report would also be helpful, but not an overdone one.

    But stay strong, and good luck.

    • suchan on 06/06/2023 - 18:54

      Hi,

      Thanks for your reply. Your advice aligned with my real estate agent who said that it's better to come to the hearing as myself without a lawyer first. Perhaps appeal to the judge that I'm just an everyday hard working person who needed mediation in my situation. Coming with a lawyer may make me look like a corporate with big bucks?

      The plumber (contracted by the builder) who came to fix the plumbing issues told me that it may be better to request for another builder to fix the defects rather than getting the original builder. He said that another owner lodged them to Fair Trading. Fair Trading got the builder to come to rectify some painting defects but they did such a terrible job he'd probably be better off doing it himself.

      there will be a couple of mediation rounds.

      There can be more than one? That's news to me. What could cause multiple mediation rounds?

      Thanks for the advice about getting an independent building report. I did engage a building inspector who detailed all the existing issues that are not obvious to my untrained eye.

      • Muzeeb on 06/06/2023 - 19:05
        -1

        Perhaps appeal to the judge

        Is it a judge at NCAT? Seems a bit overkill to use a judge at an NCAT hearing.

        • suchan on 07/06/2023 - 20:01

          Sorry, I don't know who will be present at the hearing. I just assumed

      • Protractor on 06/06/2023 - 19:17

        I'd be lawyering up from the getgo. Especially if this is your residential HOME.
        The reason I say this is based on what you have inferred about the 'attitude of the builder'
        RE agent opinion is as useful as online armchair lawyers are.
        Your taking opinions from all the over the shop. A (one with experience in this field) lawyer is (usually) organised and has a methodical approach to sorting it. Even if you get advice and direction and then go along with prepared notes etc, you'll have a better idea .
        Re the lawyer making you look like Andrew Forrest, you watch too much American TV.
        Just write down everything first hand to take to a lawyer or provide it before you sit down with them.Make it clear concise and with dates and times as applicable. I'd avoid any more meetings or convos with the builder without a witness (at least one) from your side

        • suchan on 07/06/2023 - 19:56

          Thanks for your thoughts. I took your advice and called my lawyer today. Started the call by saying, "how much do you think it'll cost me to get you to represent me for my NCAT hearing?" But the call took on a different direction.

          He gave me the following advice:
          - My hearing is a "Notice of direction", which in a nutshell means a decision wont be made on the day and will probably require (like other posters said) multiple mediation rounds. What I need to do first of all is to find out how much exactly it'll cost the builders (or another builder) to rectify all the issues.
          - One way is to engage a quantity surveyor first (which apparently is something I should've done prior to starting NCAT proceedings). My understanding is: The quantity surveyor can give me a close estimate of how much it'll cost to rectify issues. If I can show the court that I have multiple paper / email trails of my attempts to get the original builder to fix but not getting it then I could've got it fixed by other builder and NCAT can order the orig builder to reimburse me for it. But usually a quantity surveyor cost a lot of money hence he thinks it may be too late to do it now.
          - As an alternative, I contacted another builder to ask if they could give me a quote on remediation work.
          - Depending on how much it'll cost them to fix the issue then perhaps I can decide whether to go back to the lawyer and pay him for his time, which could be at least $2-3k.

          • Protractor on 07/06/2023 - 20:02

            @suchan: If you book a lawyer meeting have as much stuff written down as possible.You can lose time thinking on the go. Use the opportunity to lobby your local member to get the fed govt to set up a dodgy builder website. Keep a diary or notes on all of the journey.
            Hope it all works out.

      • zangbangapda on 06/06/2023 - 20:05

        Yeah, it sounds like it may take more than one NCAT application to get anything done from this builder. You could absolutely ask the builder to pay for another contractor to do the job and its a good call, though NCAT will likely ask the builder to come back if its the first one.

        Multiple mediation rounds are quite likely, unless you and the builder reach an agreement at the first round. NCAT prefers mediations and only resort to a hearing and a decision if it cant be mediated after multiple attempts. Looks like this builder has had other complaints and already knows his ways around.

        There are good lawyering up advice. Its definitely better than online advice haha but many things can go unexpected, including from high legal costs, the builder also lawyering up and then leading to longer and more complicated disputes. NCAT was designed for disputes without lawyers, so I would say give it a try.

  • helpme on 06/06/2023 - 19:17

    (profanity) me, people should really be sent to jail for stuff like this

    • Protractor on 06/06/2023 - 19:46
      +1

      The contracts from the HIA are basically self regulated crap. And the industry is pretty much self regulated, ergo, they wrote the rules to protect themselves long ago .Shit builders just go bust & rename at a later date, anyway.They leave some nasty scars behind on Mum & Dad family home owners, and a whole lot more, besides. 'Builder' has as much ethical cred these days as car salesperson.Maybe less.

    • Tee Rex Arms on 06/06/2023 - 19:48

      Jail for a civil matter? Please

      • randomusername2017 on 06/06/2023 - 20:07

        If you insist.. Ѻ𝆘𝆘Ѻ

      • Protractor on 06/06/2023 - 20:15
        -2

        Over the top perhaps, for a minor few offences, and maybe a single BIG stuff up, but I do think if a builder is found to have a habit of ripping ppl off or building lemons then some custodial thinking time is warranted. If not that,they they should at least be banned from the industry. It's a pretty poor reflection on any industry when there is little real impetus from the collective to scrape the scum off the bottom of their feet.

        • Tee Rex Arms on 07/06/2023 - 14:08
          -1

          Civil vs criminal. /thread

          • Protractor on 07/06/2023 - 14:12

            @Tee Rex Arms: No deterrent, no behaviour change

            • Tee Rex Arms on 07/06/2023 - 14:13

              @Protractor: Sanctions by way of monetary penalty. You’re not going to serve a custodial sentence for a dodgy build.

              • Protractor on 07/06/2023 - 14:22
                -2

                @Tee Rex Arms: As it stands no. How does a financial penalty financially deter a bankrupt lemon builder?

                As the next building surge occurs Australia will see more lemons than ever and more Phoenix builders pop up. The sooner they create a prevention strategy the better, and I'd argue that the trauma and loss of asset livability is a real good reason to have some state sponsored thinking time. So hopefully there is reg and law reform in this space. Especially given the victim rates is set to rise, and the industry self regulation has clearly failed too many times.
                In the interim the state consumer law authorities should set up a public register website reflecting all reported building defaults and major defects,(over a certain number) with the builders details available so building companies and consumers can avoid the dodgy ones.
                People building a once in a lifetime home should be properly protected from avoidable builder quality impacts. Good tradies & builders have nothing to fear, and everything to gain from a cleaner more accountable system

  • Euphemistic on 07/06/2023 - 16:26

    Is it worth getting a professional to inspect and report the defects? Make it a little impartial so they can’t play the ‘you’re just a hysterical customer’ card.

    • suchan on 07/06/2023 - 19:58

      Thanks, I did get the professional to inspect and I sent the report to the builder but crickets …

  • S321 on 13/07/2023 - 15:17

    You can seek leave to be legally represented in NCAT proceedings. If your case is complex they may grant leave. Talk to your lawyer and they will advise you of the process.

  • pushandpaul on 06/10/2023 - 19:05

    How did you get on @suchan?

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