Where it is decided

NCAT and court

Most residential building disputes in New South Wales are heard by NCAT. Larger and commercial matters go to the courts. Which applies depends on the claim, not on preference.

General information, not legal advice. This page sets out how the law generally applies. It does not take account of your circumstances, and you should get advice about your own situation before acting on it. The official sources this page is written from are listed on it; where they differ from anything here, they are the authority.

Who this page is for

Choosing the forum is part of the case

People usually come to this question late. They have tried talking, they have written the letters, and now they want to know where the argument actually gets decided and what that will involve. The honest answer is that the forum is part of the strategy, and choosing the wrong one costs time that a limitation period may not give back.

For residential work, NCAT’s Consumer and Commercial Division is the usual home. It can order money to be paid, order work to be done or not done, and deal with defective and incomplete work. It is built to be used without a lawyer, which is a real advantage on a modest claim. It is also busy, evidence-driven and less forgiving of a case that has not been prepared than its informality suggests.

Before NCAT will take most home building applications, the dispute has to go to NSW Fair Trading and Building Commission NSW first, and evidence of that investigation has to be attached unless the matter is exempt. NCAT lists the exemptions, and they include a matter where the time for lodging a claim is due to expire within three months. That step is not a formality to be got past. An inspector can issue a rectification order, and a dispute can be resolved at that stage without anyone filing anything.

Commercial construction, larger claims and disputes that are not home building claims go to the courts. There the process is more formal: pleadings, discovery, expert evidence under court rules, and a costs regime in which the losing party ordinarily pays a proportion of the winner’s costs. That last difference changes how a matter should be run from the first letter onward.

How we help

What the work actually is

Working out where the claim belongs, and when

Which forum, whether the Fair Trading referral applies to you, and whether any limitation period is close. Where a statutory warranty period is near its end, that question is urgent and comes before everything else.

Preparing the case rather than the complaint

An application is not a letter of grievance. It needs the claim identified, the loss quantified, the documents organised and the expert evidence addressed to the right questions. Most of the value in a building case is created before the first listing.

Running the matter through its directions

Building matters proceed by directions: points of claim, points of defence, expert reports, conclaves and joint reports, hearing. We keep the matter on that timetable, because a party who misses directions loses ground that is expensive to recover.

Advising honestly on settlement and on stopping

Many building disputes should settle, and some should not be run at all. We will tell you when the likely recovery does not justify the cost and the risk, and what the cheaper alternatives are. That advice comes early, while it is still useful.

Questions

Questions people ask first

What is the difference between NCAT and a court?

NCAT is a tribunal. It hears many residential building claims, is generally faster and less formal, and is designed to be usable without a lawyer. Courts deal with larger and more complex matters, including most commercial construction disputes, with more formal procedure and a different approach to costs. Which one applies depends on the nature and size of the claim rather than on what either party would prefer.

Do I have to go to Fair Trading first?

For most home building disputes, yes. NCAT states that home building disputes must first be referred to NSW Fair Trading, and that evidence of the investigation must be attached unless the matter is exempt. The exemptions include an appeal against an insurer’s decision, claims involving an unlicensed contractor, and a matter where the time for lodging a claim is due to expire within three months. Assume the referral applies to you until you are advised otherwise.

Can I run it myself?

In NCAT, often yes, and for a straightforward claim that is a sensible thing to do. Where the matter turns on expert evidence, where there is a counterclaim, or where the other side is represented and well resourced, the imbalance starts to matter. Get advice on the shape of the case even if you then run it yourself.

How long will it take?

We do not publish timeframes, because they depend on the list, the evidence, the number of parties and how hard the matter is fought. What we can tell you at the outset is the sequence of steps and what each of them requires from you, which is usually the more useful thing to know.

If I lose, do I pay the other side's costs?

In the courts, costs ordinarily follow the event, so a losing party usually pays a proportion of the winner’s costs. In NCAT the position is different and costs orders are more limited, though not impossible, and the rules vary with the amount in dispute. It is a question to ask before you start, not after.

Proceedings have already started. Can you take it over?

Yes. Tell us the next date in the matter when you make contact, because directions and deadlines will already be running and some of them will be close. Bring everything that has been filed and served, in the order it happened.

Can I appeal an NCAT decision?

Some decisions can be appealed internally to the NCAT Appeal Panel. An internal appeal can be made as of right on a question of law; an appeal about the merits of a decision requires leave. NCAT publishes the procedure and its own guideline on internal appeals, and an appeal is not a second hearing of the same case.

What to bring

Whether a matter belongs in NCAT or a court, the same material decides it — and the next date, if there is one.

The contract and the plans.
The date the work was completed, and the dates the problems appeared.
Your Fair Trading or Building Commission NSW complaint, and anything the inspector produced.
Any rectification order, and what has happened since it was made.
Every expert or inspection report, and the invoices for them.
Anything already filed or served in NCAT or a court, and the next date in the matter.
A realistic figure for what you say the loss is, and how it is made up.