NCAT Conduct of Proceedings for NSW Home Building Disputes

What it is

NCAT is the NSW Civil and Administrative Tribunal. Its Consumer and Commercial Division hears home building claims up to 500 thousand dollars. The conduct of proceedings is governed by the Civil and Administrative Tribunal Act 2013, the Civil and Administrative Tribunal Rules 2014 and Procedural Direction 3 which deals with expert evidence in the Consumer and Commercial Division. NCAT is not a court. It is meant to be quicker, cheaper and less formal, but the procedural skeleton still controls how a hearing actually runs.

How a matter moves through NCAT

A claim starts when the homeowner or the builder files a home building application with NCAT and pays the fee. The Tribunal then sets a first directions hearing, usually within four to six weeks.

Directions hearings

A directions hearing is a short procedural appearance, normally 10 to 20 minutes, in front of a Tribunal member. The member sets a timetable. The timetable will set dates for points of claim, points of defence, expert reports, the Scott schedule, lay witness statements and a final hearing window. There is usually more than one directions hearing on a contested defect case.

Compulsory conciliation

Before the final hearing the file is sent to a conciliation conference under section 37 of the Civil and Administrative Tribunal Act. Conciliation is confidential and without prejudice. Most building matters settle here or narrow significantly. If conciliation fails, the matter returns to the directions list and progresses to hearing.

Expert reports under Procedural Direction 3

Each party briefs an independent expert, usually a building consultant for liability and a quantity surveyor for cost where the scope is large. The expert must read the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules 2005 and sign an acknowledgement. The expert owes a paramount duty to the Tribunal, not to the party paying the fee. A report that does not acknowledge the Code is liable to be rejected.

The Scott schedule

Procedural Direction 3 requires the parties to prepare a Scott schedule. It is a table that lists every alleged defect on a single row. Each row contains the defect description, the homeowner position, the homeowner cost claim, the builder response, the builder cost figure and a column the Tribunal completes at hearing. The Scott schedule becomes the spine of the hearing.

Hearing day

A defect hearing usually runs one to three days. The Tribunal member opens by walking through the Scott schedule row by row.

Concurrent evidence

NCAT routinely uses concurrent expert evidence, sometimes called hot tubbing. Both experts sit in the witness box at the same time. The member runs through each defect and asks each expert to comment on cause, scope and cost. The lawyers then ask short follow-up questions. This is faster than traditional sequential cross-examination and surfaces real disagreement quickly.

Lay evidence

The homeowner gives evidence on practical complaint and rectification history. The site supervisor or project manager gives evidence on the build sequence. Cross-examination is brief by court standards. The member intervenes if a question goes outside the Scott schedule.

Submissions

Closing submissions are often oral and short. For larger files the member orders written submissions within 14 to 28 days of the last hearing day.

Builder duties during the proceeding

The builder must keep the site accessible for joint expert inspection, must produce contract files and variations on request and must not destroy or alter alleged defective work without leave. A builder who refuses access risks an adverse Jones v Dunkel inference. The builder also retains its rectification obligations under the statutory warranties in section 18B of the Home Building Act 1989 while the matter is on foot.

Homeowner duties

The homeowner must give the builder reasonable access to inspect alleged defects and to attempt rectification if the Tribunal so orders. The homeowner must mitigate loss. A homeowner who runs straight to a third party trade for full rectification before the builder is offered a chance to inspect risks a reduced costs award.

Common errors

Filing without a written defect schedule or expert report. Letting the timetable slip and forcing an adjournment. Briefing an expert who has not signed the Code of Conduct acknowledgement. Submitting a Scott schedule that bundles three defects in one row. Claiming rectification at the highest market quote rather than a reasonable cost. Treating conciliation as a tactical box-tick rather than a genuine settlement attempt. Asking witnesses to address matters outside the Scott schedule.

The hearing is won on the quality of the schedule and the credibility of the expert. Everything else is supporting evidence.