DOMESTIC BUILDING CONTRACTS ACT 1995 - SECT 53 Settlement of building disputes
DOMESTIC BUILDING CONTRACTS ACT 1995 - SECT 53
Settlement of building disputesS. 53(1) amended by No. 15/2016 s. 10(2).
(1) VCAT may make any order it considers fair to resolve a domestic building dispute.
S. 53(2) amended by No. 15/2016 s. 10(1).
(2) Without limiting this power, VCAT may do one or more of the following—
S. 53(2)(a) amended by No. 15/2016 s. 10(1).
(a) refer a dispute to a mediator appointed by VCAT;
(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;
S. 53(2)(ba) inserted by No. 101/1998 s. 6.
(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
S. 53(2)(ba)(ii) amended by No. 15/2016 s. 10(1).
(ii) VCAT 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;
S. 53(2)(bb) inserted by No. 101/1998 s. 6.
(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;
S. 53(2)(bc) inserted by No. 101/1998 s. 6.
(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.
S. 53(3) amended by No. 15/2016 s. 10(1).
(3) In awarding damages in the nature of interest, VCAT 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.
S. 53(4) amended by No. 15/2016 s. 10(1).
(4) In determining whether a term of a contract is unjust under subsection (2)(e), VCAT 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;
S. 53(4)(n) amended by No. 15/2016 s. 10(1).
(n) any other factor VCAT thinks is relevant.
S. 53(5) amended by No. 15/2016 s. 10(1).
(5) Despite anything to the contrary in this section, in determining whether a term of a contract is unjust, VCAT is not to have regard to any injustice arising from circumstances that were not reasonably foreseeable when the term was agreed to.