Building service and home building work contract complaints
As part of its function, the Building Commission provides an avenue for both consumers and builders to resolve disputes relating to the carrying out of regulated building services and home building work contracts. These services are provided to parties as an alternative to the commencement of court proceedings.
The Building Commission remains impartial when dealing with a building service or home building work contract complaint, with decisions being made having regard to the evidence presented by the parties.
1. Process for making a complaint
Who can make a complaint?
A complaint under the Building Services (Complaint Resolution and Administration) Act 2011 can be made by any person who is adversely affected by the carrying out of regulated building services.
A complaint may be made to the Building Commissioner by:
- a person whose interests are being or have been adversely affected by the carrying out of a regulated building service (ie the owner of the work or an affected third party); or
- an owner or builder under a contract for home building work valued between $7,500 and $500,000.
Not only may a person who has directly contracted a building service lodge a complaint, but also any person adversely affected by that building service. This can include a neighbour whose property has been damaged as a result of unsatisfactory building services or some other third party.
Time limits for making a complaint
There are time limits for lodging complaints with the Building Commissioner. In general, a complaint cannot be considered more than six years after completion of the work.
You should consider the following when ascertaining the completion date of a regulated building service:
- If the work was done under a permit and the person responsible for the work ceases their responsibility under the permit, the work is completed when the notice of cessation is given.
- If not the above, the work is completed when the notice of completion is given.
- If the work is not carried out under a permit, then the work is completed on the date that practical completion is achieved.
For specific home building work contract matters (contract variations, breach of contract, termination payments) the time limit for making a complaint is generally three years from when the contract was entered into or from when the cause of dispute arose.
Making a complaint
Before initiating a complaint with the Building Commission, read the important information provided in the Building complaint resolution guide. Complete the Notice of proposed complaint and provide it to the party against who the complaint is going to be made at least 14 days before submitting a formal complaint to the Building Commissioner.
If a satisfactory response to your notice of proposed complaint is not received, complete the Building complaint form and lodge it with the Building Commission together with copies of relevant documents and the complaint fee.
When preparing your complaint form, detailed information is required to enable proper investigation of the complaint. The Building Commissioner may, in writing, require a person making a complaint provide further details about the complaint. Where these details are not provided within a reasonable time, the Building Commissioner may refuse to accept a complaint.
Payments can be made by cheque, credit card, EFTPOS or cash (in person).
Withdrawal of a complaint
A building service complaint or a home building work contract complaint, or parts thereof, may be withdrawn by the complainant at any time throughout the complaint process unless the complaint has been referred to the State Administrative Tribunal (SAT).
Each complaint is unique and a solution to one complaint is not necessarily suitable for another. This is why there is a range of ways to resolve your complaint under the Building Services (Complaint Resolution and Administration) Act 2011.
Once accepted by the Building Commissioner, your complaint may be dealt with through any number of the following ways:
- Interim order.
- Building remedy order for rectification and/or payment.
- Home building work contract remedy order for rectification and/or payment.
- Referral to the SAT.
This variety of dispute resolution techniques is intended to prevent relatively low cost disputes from proceeding to court.
2. Building complaint resolution guide
Building complaint resolution guide: A guide for consumers
A guide to the steps involved in making a complaint about a building service or home building work.
When dealing with building disputes relating to regulated building services, the onus is on the parties to provide sufficient evidence to substantiate their respective positions. Depending on the complexity and nature of the issue evidence in the form of photographs or a report from a building expert may be required. The Guidelines for building complaint reports publication can help in understanding what is required.
3. Notice of proposed complaint
Notice of proposed complaint
A sample Notice of Proposed Complaint for your use.
4. Complaint form
For information on how to complete the complaint schedule of the form, download the Example complaint schedule.
Please read the Guide to the provision of evidence to support a building work complaint for information about what evidence may be required to support your complaint.
5. Previous reasons for decisions
Viewing previous reasons for decision may assist parties to a building dispute prepare their case. Previous decisions of the State Administrative Tribunal (SAT) and the Building Disputes Tribunal are available on the AustLII website.
6. Conciliation, outcomes and appeals
You and the respondent may choose to opt for conciliation or else parties may be required to attend a conciliation conference.
A conciliator may:
- communicate with the parties;
- arrange and facilitate conferences about the complaint; and
- give advice and make recommendations to assist in reaching an agreement.
If the parties can agree to an outcome, the Building Commissioner can make an order to give effect to the agreement. If the parties do not agree to an outcome, your complaint will be referred back to the Building Commissioner for further consideration.
Interim building service order
In some cases, if there is a risk of significant loss or damage occurring, the Building Commissioner can make an interim building service order to stop work or take other action before a final decision is made.
Building remedy order
The Building Commissioner may issue a building remedy order if satisfied the regulated building service subject to the complaint has not been carried out in a proper or proficient manner or is faulty or unsatisfactory.
A building remedy order may require a person who carried out the regulated building service to:
- remedy the work;
- pay costs associated with having someone else remedy the work; or
- pay reasonable compensation.
The Building Commissioner cannot issue orders for work or payments valued over $100,000 without the consent of the parties. The State Administrative Tribunal (SAT) cannot order work or payments of more than $500,000 against an unregistered person. There is no limit to work or payments the SAT can order against a registered building service provider. If you think the remedy you are seeking is in excess of these limits, you may need to take your complaint through the relevant court rather than this building complaints resolution process.
Home building work contract remedy order
A home building work contract remedy order can be issued by the Building Commissioner if satisfied that the order is justified.
A home building work contract remedy order may consist of, but is not limited to, an order:
- to stop an action in breach of the contract, or require work to be done;
- to pay an amount payable under the contract;
- requiring specified work to be done;
- that an amount is not payable under the contract, or if already paid, an order to repay the amount;
- for compensation for loss or damage; or
- declaring that an amount of money claimed for work done is not payable.
Referral of a complaint to the SAT
Complex or intractable disputes are referred to the SAT for determination. If your complaint is referred to the SAT, both you and the respondent will receive written notification of the decision. The complaint will then be dealt with by the SAT.
A conciliation conference is an opportunity for you to settle or reduce the size of your dispute by agreement. The focus is not upon who is right or wrong but on what each party would do to put an end to or reduce the size of the dispute. You should consider many factors before you decide not to settle your dispute with the other party. A few of these are:
The power to choose: If you do not negotiate a reasonable settlement with the other party, the decision will be taken out of your hands. Experience has shown that it is extremely rare for both parties to be satisfied with a resolution by a third party such as the Building Commissioner or the SAT.
Time: In settling your dispute by agreement, you control how long it takes. If not, your dispute will be resolved in accordance with a timeframe not of your choosing. Your dispute will be subject to the priorities and workloads of people and agencies outside of your control. Resource restrictions will limit the speed with which your complaint can be dealt with. Settlement enables you to bring your complaint to an end in the shortest possible time.
Cost: The financial cost of continuing a dispute should not be overlooked, even in a low cost jurisdiction like the Building Commission or SAT where you can represent yourself. Obtaining legal or technical advice and engaging experts to give evidence are expensive. Even if you are successful and are awarded costs, such costs usually only cover a portion of the amount you will have expended.
Stress: Disputes have a personal cost. Often disputes must be managed while either or both parties are employed full-time and have family responsibilities, all of which suffer while you are involved in your dispute. While a settlement might not seem to be satisfactory, the sooner a settlement is achieved, the sooner the stress begins to dissipate and life can return to normal.
Do I have to conciliate?
Yes. If you have received a Conciliation Notice, you are required to attend the conciliation conference in person.
The Building Services (Complaint Resolution and Administration) Act 2011 contains penalties of up to $5,000 for an individual and $25,000 for a company for failing to attend a conciliation conference without a reasonable excuse.
What happens at a conciliation conference?
A conciliation conference is a meeting of the parties and a conciliator to attempt to settle the dispute. The conciliator will meet around a table with the parties together and also with the parties separately. The conciliator will allow each party in turn to outline their position and will give them the opportunity to respond to the other party. The complainant usually goes first because it is to the complainant’s issues to which the respondent needs to respond..
The conciliator may meet with each party separately to explore the issues and may outline the strengths and weaknesses of the party’s case and present options for settlement. The conciliator may ‘workshop’ or ‘reality test’ each party’s position to ensure they are aware of the likely consequences of failing to settle.
Can what I say in a conciliation conference be repeated in other proceedings if the complaint does not settle?
No. The Act provides that anything lawfully said in a conciliation proceeding cannot be used in other proceedings.
Practically, this means the parties can negotiate openly in a conciliation conference. They might make offers for the purpose of trying to settle the dispute that they would not make when the matter is to be determined by a third party. Any such offer cannot be used against the offering party in another proceeding. For example, Party A might offer to settle the dispute for half of what he/she was asking. In other proceedings, Party B could not use Party A’s offer as evidence that he/she would settle for 50 per cent less.
What should I do to prepare for a conciliation conference?
If you are a complainant, you should make sure your fully completed complaint form includes all of the items in dispute with the respondent. If you intend to complain about items that were not in your original complaint, you should ensure that you have sent copies of the additional items, properly completed and in the correct format, to the respondent and the Building Commission well in advance of the conciliation conference. Items sought to be added to the complaint at a conciliation conference may be excluded from the proceedings and may need to be the subject of a new complaint.
You should consider obtaining legal or technical advice so that you are aware of the strengths and weaknesses of your position.
You should take the time to properly assess all the costs of maintaining your complaint so that you can evaluate any offers made by the respondent and in turn make realistic offers or counter offers.
You should know which items matter the most to you and which you might be prepared to let go.
You should set aside plenty of time for the conciliation and have arrangements in place for things such as child minding. Despite the period scheduled for the conference, if a matter has the potential to settle it should not be adjourned due to family or work commitments.
What should I bring to the conciliation conference?
You should bring:
- the conciliation notice;
- your copy of the fully completed complaint form and all attachments and other relevant documents;
- technical reports that are not attached to you complaint; and
- any other information you think would assist to explain or support your case.
The Building Commission cannot provide copies of documents or technical equipment. If you need a device to show photos or video such as a computer then you should bring one with you including everything you need to run it, for example, a short extension cord or double adaptor.
Every effort will be made not to schedule conciliation conferences at meal times. In the event that a meal break is necessary, there are limited options for obtaining food at or near the Building Commission. You should consider bringing a snack with you in case the conference is adjourned and you want to eat.
Representation is not permitted in a conciliation conference unless you have been granted permission by the Building Commissioner.
Please note: Tea, coffee and child-minding facilities are not available at the Building Commission.
Parties to a dispute who are aggrieved by a decision of the Building Commissioner to refuse to accept a complaint, may apply to the State Administrative Tribunal (SAT) for leave to have that decision reviewed.
Likewise any person aggrieved by an order issued by the Building Commissioner may apply to the SAT for a review of that order.
An application to the SAT must be made within 28 days from the date of issue of the Building Commissioner's order or decision.
If you have any queries about the appeal process, contact the SAT or seek independent advice from a legal practitioner.
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