What makes a building consultant?
You probably wonder what “consultants” really know about building; how do these “collar and tie” people qualify as experts? It’s a common question asked on building sites.
Truth is, the “consultant” probably has been in your shoes many times. A typical building consultant is often a technically minded person who is motivated to improve the industry.
Consultants are professional problem solvers, putting into practice their knowledge, skills and experience of:
- their passion for engineering
- energy efficiency
- quantity surveying
- a specific trade
- building disputes of a contractual nature.
When is a building consultant considered an “expert’?
A building dispute expert is an industry consultant. You can’t just call yourself an expert; you have to earn that title.
An expert is an experienced industry practitioner who has the skills needed to provide both written and oral independent evidence to the Courts.
How does an “expert consultant” help deliver a fair ruling on disputes?
A dispute arises when neither party will concede or negotiate. Lawyers and judges are not experienced builders, so they rely on “experts” to guide them in solving the disputes before them. They can then deliver a reasonable ruling.
How a building dispute expert can help the court
- The (court’s) experts are qualified individuals who reveal to the courts any shortcomings and /or oversights of builders who (maybe) don’t keep up with vital changes and improvements in the industry.
- The expert provides an opinion on why the work is defective, what the builder can do to rectify the defect and how much it will cost.
- The expert’s report at other times might exonerate the builder by confirming the builder has complied with the contract documents.
- On the assumption there will likely be a formal hearing, the Expert Witness has produced an independent Expert Report that contains both evidence and expert opinion.
- The Expert Report must also follow the Queensland Uniform Civil Procedure Rules 1999 – Part 5 r428 (UCPR) if the dispute realtes to work done in Queensland.
- The reposrt must assist the Court – not the party paying the Expert’s fee.
The Queensland Building And Construction Commission
The QBCC’s Early Dispute Resolution (EDR) procedure is now mandatory for domestic building work before you can apply for a hearing at QCAT.
This is a free service and can be very helpful if the issue in dispute is the standard of workmanship, alleged defects or, scope. But, disagreement on costings (for example) is not for the QBCC inspector to settle.
QBCC inspectors are well trained in separating building issues from contractual issues. But when the QBCC determines an issue is “contractual” in nature, or when the QBCC review decision is still not acceptable to one of the parties, that disgruntled party might then resort to making an application to QCAT.
It is human nature to feel that the homeowner’s expert becomes your opponent
The reality is that neither is true! The appointed expert /s should report their independent opinion, based on supporting evidence. They report the technical information necessary to assist the court. They are neither friend, nor foe!
With or without a lawyer, the Tribunal will often request the claimant’s application includes an independent “Expert Report”. That is when you might ask yourself and your lawyer, “Can I expect the expert’s report (that I’m paying for) will lend weight to my position?”
The QCAT Member (or a Judge) hearing the dispute would insist that independence is paramount. Under cross examination, any display of favouritism (written or verbal – intentional or not) is cannon fodder for the opposing lawyer to request the Tribunal or Court disregard ALL the Expert’s evidence.
The consultant’s reputation would be forever tarnished as a “hired gun” and he / she would lose all credibility in the eyes of the court, because Transcripts of Court and Tribunal hearings are on public record.
Top three tips for builders to avoid disputes:
- Keep your client informed of any delay or change. Issue Variations without delay.
- Keep your knowledge and skills current. The construction industry is evolving. Attend courses, seminars, roadshows, etc.
- Insist on “no short cuts!” Supervise your subcontractors.
Three tips for the builder in dispute:
- The first step is to contact Master Buillders and/or the QBCC to proceed through EDR.
- Your case can “sink or swim” based on the records you keep. Diary, photos, emails etc are vital evidence.
- Master Builders and the Institute of Building Consultants (IBC) consist of consultant members who specialise in construction, pest management, pool safety, waterproofing, energy efficiency, asbestos, private certifiers, designers and structural engineers. Some of these serve in Queensland and interstate as an expert witness. Master Builders also offers help to members involved in building disputes.
So, the expert witness is neither friend nor foe!
The experts has an important task and it isn’t simply a question of whether he is a friend or foe. It’s about coming to the right and just decision to determine what is best for both parties in a building dispute.
If you need an independent, expert witness, then call Paul Cavallo on 0419 868 008