Disputes in the building and construction industry are common and often challenging to avoid. But, as a Master Builders member, you have a team of specialist staff on your side.
Dispute resolution
Dispute resolution is one of Master Builders' core services and we can help you to manage disputes that arise in your business. Our specialised dispute services team can assist parties and facilitate ‘without prejudice’ conferences.
If your client contacts Master Builders to make a complaint, we'll discuss the issues with them in general.
Most disputes can be resolved without the need for a formal dispute management process, but if we think a more formal request for assistance is warranted, we will ask your client to put their concerns in writing.
Any contact that we have with your client, whether on site or at the office, will only be undertaken with you present.
If the matter can't be resolved informally, we may invite both parties to a ‘without prejudice’ conference, where we will facilitate discussion. If money is an issue in the dispute, where possible, the disputed amounts of money may be deposited into Master Builders holding account until the matter is resolved.
We may also refer you to one of our panel solicitors, who specialise in building and construction industry law.
As a member, you will receive your initial half hour discussion at no cost, however, the solicitor will discuss with you their costs if you need to engage them to represent you, review or draft documents, or give advice.
Communication
Communication is the key to avoiding, minimising and managing disputes. Many disputes arise because of poor communication.
Misunderstandings and unrealistic expectations happen often on a building site – and instead of being resolved via open and honest communication, a lack of communication can cause both parties to become emotional, which means you can (perhaps unnecessarily) end up in a dispute situation.
As a contractor or tradie, it's important to develop an open line of communication with your client from day one and encourage them to discuss any issues or problems as early as possible.
If you think an issue has been misunderstood, make sure you clarify with your client – taking the time to ensure both parties are clear on issues early on can help you avoid a much more complicated situation later.
Contracts in writing
Getting your contracts in writing is the golden rule to avoiding or minimising disputes down the track.
For residential projects, once a contract is in place and work has begun, you must document (in writing) any variations, no matter how minor. Your client may not know that all variations must be in writing; however, as the contractor, you should insist on a written contract and written variations, as it will protect both you and the client in the long run. This equally applies to timely administration when lodging extensions of time and progress claims.
If you find yourself in a dispute situation with a client, the conditions outlined in your contract will also determine the correct procedure for dispute resolution.
Having a written contract is particularly important when completing work for friends or family, as not having one in place can become a very costly mistake and cause disputes that could ruin relationships.
Our wide range of contracts have been specifically tailored for the building and construction industry and contain standard clauses about dispute resolution.
Get help early
The sooner you call Master Builders for help, the better. We can guide you through the process and discuss the options available to resolve a disagreement or problem, before it turns into a situation that requires a formal dispute management process.
What if the dispute can’t be resolved?
Master Builders actively encourages both parties to reach an amicable agreement to resolve their issues. However, we can't make a formal determination enforceable on one or either party.
If joint agreement can't be reached, the matter may be referred to one of the following:
Queensland Building and Construction Commission (QBCC)
The owner or contractor may lodge a formal complaint with the Queensland Building and Construction Commission (QBCC) for defective work or non-complete work.
The QBCC promotes informal documented agreements between parties, without the need for further intervention. They encourage both sides to take responsibility and develop a better understanding of how to avoid conflict through communication and documentation.
However, if a dispute can't be resolved informally, the QBCC can:
- Assess defective building work
- Direct rectification work
- Issue an infringement notice and licence demerit points
- Post contractor performance records on their website
Pursue parties in court.
Go to the QBCC website for more information.
Queensland Civil and Administrative Tribunal (QCAT)
The Queensland Civil and Administrative Tribunal (QCAT) decides disputes related to building activities for:
- Domestic and commercial building work
- Disciplinary proceedings against building certifiers and contractors.
QCAT also reviews decisions made by:
- The QBCC relating to disciplinary proceedings and licensing and permits
- The QBCC relating to rectification of work, insurance claims, exclusions and bans for domestic building work
- An adjudication registrar.
For the dispute to be heard by QCAT it must be about:
- Erection or construction of a building
- Renovation, alteration, extension, improvement or repair of a building
- Provision of electrical work, water supply, sewerage or drainage or other like services for a building
- Demolition, removal or relocation of a building
- Any site work including the construction of a swimming pool, retaining structures, driveways or landscaping but only if associated with the erection, construction or renovation of a house or building
- Preparation of plans and specifications, or bills of quantity related to the building work
- Inspection of a completed building
- Work prescribed under a regulation.
QCAT has standard forms and procedures for lodging an application in relation to a building dispute. However, the parties are required to first participate in a dispute resolution process with the QBCC before making an application to QCAT. A letter from the QBCC advising of the outcome of the dispute resolution process must be provided when commencing a QCAT application. Failure to do so may result in the dismissal of the application.
QCAT has jurisdiction to consider disputes involving domestic building work of all values but only commercial disputes for a claim or counter claim of up to $50,000 unless both parties agree to have QCAT consider a dispute of a higher amount.
Visit the QCAT website for more information.
Adjudication Registry
The Building Industry Fairness (Security of Payments) Act 2017 (The Payments Act) was created to provide an alternative to the court system and is a cost-effective solution to resolving payment disputes in the building and construction industry. It applies to all construction work (as defined in the Payments Act), including the supply of related goods and services in Queensland.
While the Act doesn't cover residential building work, other than for owner builders or non-resident owners, a subcontractor on a residential project can call on the BIF Act to obtain payment from the contractor. A contractor (builder or subcontractor) carrying out work on a commercial project can also use the Payments Act to obtain payment from an owner or contractor.
The Payments Act provides a process for resolving payment disputes for work done under building and construction contracts. The Adjudication Registry – a branch of the QBCC – oversees the administration of this process.
If you have issued a progress payment claim (in the manner required by the Payments Act) and you have not been paid, you may be able to take advantage of adjudication.
Adjudication
The adjudication process involves the referral of a payment dispute to an adjudicator for a decision.
If the claimant does not receive a payment schedule or is not satisfied with the amount acknowledged, the claimant may elect to seek an adjudication of the claim. The request for an adjudicator must be lodged with the QBCC registrar whose role it's to appoint an accredited adjudicator.
Where the claimant elects to proceed with adjudication, in place of other enforcement options, there are a number of requirements that must be met.
Read more about progress payments and getting paid.
The courts
The court that a dispute is referred to will depend on the monetary amount that is being disputed.
- The Magistrates Court is the first level of the Queensland Courts system. Civil cases can be dealt with by the Magistrates Court if the amount in dispute is $150,000 or less. If the amount is greater than $150,000, the District or Supreme Court will deal with the case.
- The District Court hears appeals from cases decided in the Magistrates Court and disputes involving amounts of more than $150,000, but less than $750,000.
- The Supreme Court is the highest court in Queensland and includes the trial division and the Court of Appeal. The Supreme Court hears all civil matters involving amounts of more than $750,000.
- The Court of Appeal hears appeals from the District and Supreme Courts, and from many tribunals. A dissatisfied party in a civil case can seek an appeal, that is, a review of the court’s decision or the sentence imposed.
Visit the Queensland Courts website for more information about the courts.
Remember: if a dispute can't be avoided, it's important to apply sound commercial judgement by pursuing a course of action that minimises your loss – having to go through the process of litigation should always be a last resort.
Need more information?
If you haven’t found the answer to your questions on our website, give us a call or email us.
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