As of 1 July 2024, the Tasmanian Civil and Administrative Tribunal (TASCAT) has been able to hear disputes regarding residential building works to which the Residential Building Work Contracts and Dispute Resolution Act 2016 (the Residential Building Act) applies as part of its new Civil and Consumer Stream.
The ability to refer certain disputes to TASCAT is in addition to already existing pathways such as litigious proceedings in court.
The model for the new Civil and Consumer Stream is based on a similar model in Victoria, which requires the parties to a dispute to attempt mediation before a matter is heard in a tribunal.
TASCAT is a specialist Tribunal that resolves applications, appeals and other matters through mediations and conciliations and conducting hearings. It is intended to provide a quicker and cheaper alternative to the court system.
This article looks at the process to have a residential building dispute heard by TASCAT and considers what impact this reform is likely to have on the residential building industry.
Mediation through CBOS
For a matter to be heard by TASCAT, a builder or homeowner must first lodge a notice of dispute with the director of CBOS (the Director) under the Residential Building Act.
Under that process, the Director must refer certain residential disputes to mediation.
For a matter to be referred to mediation, the following requirements must be met:
- the dispute must involve residential building work;
- the lodging party must have made reasonable attempts to resolve the dispute;
- the dispute must have been lodged within 6 years of practical completion or, if there is no date for practical completion, within 6 years of the last day that works were performed; and
- the matter must not be the subject of an adjudication application under the Building and Construction Industry Security of Payment Act 2009 (the SOPA).
The door to TASCAT
If a matter is resolved at mediation, the agreement must be recorded in a settlement document which may be registered by the Director. If the matter fails to settle, the mediation panel may issue a certificate stating that the matter has failed to settle at mediation.
A party may refer the matter to TASCAT if:
- the matter is not resolved (provided they have obtained a certificate from the mediation panel to that effect); or
- the Director refuses to refer a matter to mediation; or
- a party is aggrieved by the Director’s decision to register or not to register a settlement agreement.
A referral must be made within 28 days of the Director’s decision or 28 days from the issuance of the certificate of mediation.
TASCAT has broad powers. It can determine whether works undertaken were defective, determine the scope of a contract (including whether or not a term of a contract is “unjust” and unenforceable) and whether or not statutory requirements under the Residential Building Act were complied with.
It can also make orders that a builder complete or rectify works within a certain timeframe, or that one party pay another a sum of money.
However, there are some matters that are carved out from it’s jurisdiction. These are:
- any matters which are currently subject to an adjudication application under the SOPA;
- any matters which are subject to proceedings under other legislation;
- any matter which is subject of a work-completion claim issued under the Residential Building Act prior to 1 July 2024; and
- any dispute arising under a contract entered into before 1 January 2017.
Will the TASCAT system be better?
As noted at the outset of this article, some of the main intended attractions of TASCAT are its speed and cost efficiency relative to the courts. This is achieved by having specialist members available to hear a matter who are bound by traditional rules of evidence or procedure. It is a system designed to assist self-represented parties.
Due to the increased formalities and broad usage, hearings in the Magistrates and Supreme Courts can be subject to backlogs for civil and criminal matters.
However, there are some features of building disputes that may cut across the benefits of running matters in TASCAT to some degree.
Firstly, because one of the requirements for a referral is that a mediation is first conducted and a certificate issued, there is potential for the process to become just as lengthy as traditional litigation, particularly if mediation dates cannot be allocated promptly.
Secondly, building disputes are inherently complex and attempting to speed through the issues can be difficult. Building disputes also typically involve an interplay of statutory warranties, statutory requirements and civil liability on top of the central contractual dispute. Further, parties will still need to rely on reports by experts such as surveyors and engineers to prove matters in dispute (e.g. that building works were defective).
The complexity of building disputes means an objective of providing a lower cost jurisdiction may be difficult to achieve in practice.
Impact on the building industry
Because of the nature of the disputes available for referral to TASCAT, we foresee that it will be used more often by homeowners than builders.
Builders are more often concerned with the non-payment of invoices, which can be more quickly dealt with by the adjudication of a payment claim under the SOPA. The more common scenario of what will come before TASCAT will likely involve a homeowner who, after paying for building works, discovers defects and seeks rectification from a builder.
More information
If you have queries about this article or about how these changes will impact you or your business, please contact:
| Brett Cassidy Principal M: 0438 368 053 E: bcassidy@pageseager.com.au |
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| Mathew See Lawyer T: (03) 6235 5132 E: msee@pageseager.com.au |
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Published: 22 August 2024
