The Importance of Experts in Construction Disputes

When you find yourself involved in a VCAT dispute concerning home construction, whether you’re the builder or the homeowner, the role of expert evidence cannot be underestimated.

Despite parties believing they have ample “evidence” through emails, conversations, and their own interpretations of documents and works, it’s challenging, if not impossible, for the Tribunal to make a fair judgment based solely on this evidence. Why? Because it lacks the crucial quality of being entirely independent and prepared by someone duty-bound to assist the Court or Tribunal as an expert.

In VCAT, Practice Note PNVCAT2 outlines that:

“Expert evidence may be utilised by the Tribunal to form an opinion on a specialised or technical matter relevant to the issues in a proceeding. When expert evidence is presented in the form of a written report and/or verbal testimony, it’s vital that the expert’s opinion is solidly grounded, comprehensive, impartial, objective, and falls within the scope of their expertise.”

Even though you engage and compensate the expert, they are not your advocate and must remain impartial to fulfill their obligation to the Court or Tribunal. Again, Practice Note PNVCAT2 lays out the duties of an expert witness as follows (clauses 8 – 10):

  • An expert has a paramount duty to the Tribunal, not to the party who engaged them
  • An expert witness has an overriding duty to assist the Tribunal on matters relevant to their expertise
  • An expert witness is not an advocate for any party in the proceeding

Typically, we recommend obtaining an expert report for disputed matters. The timing of this recommendation depends on the specific circumstances of your dispute.

It’s crucial to select an expert with appropriate expertise (such as a mould expert, quantity surveyor, engineer, or general building consultant) based on the particulars of the dispute. Additionally, ensure the expert has no conflicts preventing them from acting, no business relationship with you that could question their independence, and the availability to prepare the report as needed.

While you may want to initially reach out to an expert, we suggest that their engagement and ongoing communication be handled through our office to safeguard their independence.

Once the expert has prepared their report, it provides an opportunity to negotiate with the other party and potentially reach an agreement. The report also helps clarify and narrow the remaining disputed issues.

We understand that when you feel “wronged,” the last thing you want is to spend more money defending yourself or making a claim against another party. While there are costs associated with engaging an expert, ultimately, their report could save you thousands of dollars in unnecessary legal expenses and provide clarity on your position and the merits of your claim or a claim against you.

Contact us for an obligation free chat.

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