Victorian Consolidated Legislation

Domestic Building Contracts Act 1995 - SECT 53

Settlement of building disputes

53. Settlement of building disputes



(1) The Tribunal may make any order it considers fair to resolve a domestic
building dispute.

(2) Without limiting this power, the Tribunal may do one or more of the
following-

   (a)  refer a dispute to a mediator appointed by the Tribunal;

   (b)  order the payment of a sum of money-

   (i)  found to be owing by one party to another party;

   (ii) by way of damages (including exemplary damages and damages in the
        nature of interest);

   (iii) by way of restitution;

   (ba) order the payment of a sum of money representing a part payment under
        a major domestic building contract if-

   (i)  the requirement in paragraph (b) of section 42 has been met but the
        requirement in paragraph (a) of that section has not; and

   (ii) the Tribunal is satisfied that the work required to complete the
        contract (including rectifying any defects) is minor in nature and not
        such as would prevent the owner from occupation and quiet enjoyment of
        the building;

   (bb) order payment of a sum of money representing the amount of any money
        in dispute (including an amount on account of costs) to be paid into
        the Domestic Builders Fund pending the resolution of the dispute;

   (bc) order payment of a sum of money to be paid out of the Domestic
        Builders Fund representing the amount of any sum paid into the
        Domestic Builders Fund in accordance with an order under paragraph
        (bb);

   (c)  vary any term of a domestic building contract (including the
        completion date, the contract price, a provisional sum or the amount
        to be paid for any prime cost item);

   (d)  declare that a term of a domestic building contract is, or is not,
        void under section 132;

   (e)  declare void any unjust term of a domestic building contract, or
        otherwise vary a domestic building contract to avoid injustice;

   (f)  order the refund of any money paid under a domestic building contract
        or under a void domestic building contract;

   (g)  order rectification of defective building work;

   (h)  order completion of incomplete building work.





(3) In awarding damages in the nature of interest, the Tribunal may base the
amount awarded on the interest rate fixed from time to time under section 2 of
the Penalty Interest Rates Act 1983 or on any lesser rate it thinks
appropriate.

(4) In determining whether a term of a contract is unjust under subsection
(2)(e), the Tribunal may have regard to-

   (a)  the intelligibility of the contract generally, and of the term in
        particular;

   (b)  the extent to which the term, and its legal and practical effect, was
        accurately explained to the building owner before the term was agreed
        to and the extent to which the building owner understood the term and
        its effect;

   (c)  the relative bargaining power of the parties to the contract;

   (d)  the consequences to the parties to the contract if the term is
        complied with or not complied with and the relative hardship of those
        consequences to each party;

   (e)  whether or not it was reasonably practicable for the building owner to
        reject, or negotiate for a change in, the term before it was agreed
        to;

   (f)  the relationship of the term to the other terms of the contract;

   (g)  whether the building owner obtained independent legal or other expert
        advice before agreeing to the term;

   (h)  whether unfair pressure, undue influence or unfair tactics were used
        to obtain the building owner's consent to the contract or the term;

        (i)    whether at the time the term was agreed to the builder knew, or
               could probably have found out by asking, that the term would
               cause the building owner hardship;

   (j)  the conduct of the parties to the contract after the term was agreed
        to;

   (k)  whether the term is usually found in domestic building contracts;

   (l)  the justification for the term;

   (m)  whether the term is unconscionable, harsh or oppressive;

   (n)  any other factor the Tribunal thinks is relevant.

(5) Despite anything to the contrary in this section, in determining whether a
term of a contract is unjust, the Tribunal is not to have regard to any
injustice arising from circumstances that were not reasonably foreseeable when
the term was agreed to.