Expert Witness Report
Require an expert witness report for a building dispute?
Only settle for experienced independent expert advice. Our reports comply with NCAT Procedural Direction 3 Code of Conduct.
If you have a building dispute that is impending and has not been resolved between you and your Builder or Contractor, or you need an independent expert to assist with mediation or to be present in an NCAT hearing.
Building Inspection Sydney has the experience knowledge to get you through the process.
Expert Witness Report - Stage 1
Our Senior Building Consultant attends the property to conduct the investigation. This is where we record our observations, take photographic evidence, and we may conduct testing and sampling. Our inspectors take as much time as required to ensure we have captured all the facts and obtained a substantial amount of evidence to assist with the report.
The cost of stage 1 - $800.00 to $2,000.00 (depending on the size and complexity of the project)
Expert Witness Report - Stage 2
Once all the facts and evidence has been gathered, we take the time to compile the report. The report format has been constructed to comply with NSW Courts and Tribunals. Reports take 1-2 weeks to put together, recording as many details as possible and ensuring complete accuracy so that you can put your best case forward. A draft report will be submitted for review, and after we revise the report, we will take the time to go through the report over the phone, to ensure you completely understand all the facts, findings and recommendations.
Our reports are comprehensive and can exceed over 50 pages. Our reports refer to all the relevant Australian Standards, National Construction Code, Home Building Act.
The cost of stage 2 - $800.00 to $2,000.00 (depending on the size and complexity of the project)
How to lodge a building complaint and resolve a building dispute
Unfortunately, building and renovating does not always go to plan. Fortunately, there are regulatory bodies that protect the consumer and in some cases, the Contractors.
Step 1 - Discuss your concerns
Discuss your concerns as soon as you become aware of any issues. It may be a simple misunderstanding that can be quickly resolved through constructive communication.
If you are concerned about the quality of the work, refer to the NSW Guide to Standards and Tolerances. The guide will help you understand what standard of work is acceptable. Engage an independent building inspector. Our inspectors will inspect the site and report on the quality of the workmanship. The report will identify and explain any substandard workmanship or work that is not in accordance with the contract, Building code, Australian Standards, and manufactures guidelines.
Step 2 - Write a letter
Confirm in writing with your Contractor or Builder or consumer what was agreed to be done and by when. Ensure the letter is dated and keep a copy of all correspondence. Consider using email or registered post, as these methods provide proof that the communication was sent.
Step 3 - Contact NSW Fair Trading
If you are unable to resolve the building dispute, the next step is to contact NSW Fair Trading to assist with dispute resolution.
The Consumer or the Contractor can formally request Fair Trading to assist. However, both parties need to agree to attempt resolution.
Builders, developers, owner-builders and tradespeople must warrant that, among other things, their work has been performed with due care and skill. By law, a homeowner, or subsequent purchaser, can enforce these warranties within certain time periods after the work was completed.
Step 4 - Engage an Independent Expert Witness
We can assist consumers, owners, builders and tradespeople with any Building dispute. Often once we have recorded our evidence and prepared our report, the matter can be resolved without having to waste time and money through NCAT. As independents to both parties no matter whom we are engaged by, we will come to a fair conclusion.
Step 5 - Apply for NCAT Mediation
If parties were unable to resolve the building dispute with FairTrading, then it would be often referred to NCAT (NSW Civil & Administrative Tribunal) for mediation.
What to expect during NCAT Mediation
There are no fixed rules about what happens in mediation. Generally, the mediator will
Explain the mediation process and outline their role
Ask each party to express their concerns while everyone listens.
Ask for suggested options which are likely to be acceptable to everyone.
Speak to the parties separately to help them identify the strengths and weaknesses of their case the alternatives to having the case determined at a hearing
Help the parties come to a final agreement.
Who is the Mediator
Some mediators are Tribunals Members, and others are specialist mediators. The mediator does not decide the case. Their role is to help identify your concerns, think about the options for resolving the dispute and reach an acceptable agreement.
How to Prepare for Mediation
Before your mediation session, you should:
Make a list of all your concerns and what you think the other party’s concerns may be.
Write down some options for resolving the case.
Think about what will happen if the case does not settle.
Bring any relevant documents, such as medical reports, building investigator reports and expert witness reports. You may be directed to provide evidence or exchange other information before the mediation.
Visit the LawAccess NSW website for information on how to prepare for mediation.
Coming to an Agreement
If the parties come to an agreement at the mediation, they should make a written record and sign it. The mediator will make copies for the parties.
If the parties want NCAT to make orders in terms of their agreement, the case will be listed before a Tribunal Member to consider that application.
NCAT can only make consent orders if it has the power to do so. Otherwise, it can note the agreement of the parties.
If you don't settle
If your case does not settle, it will be listed before a Tribunal Member to decide what the next step will be.
If you do not participate in mediation
If the applicant does not participate, the mediator will list the case before a Tribunal Member to consider whether the application should be dismissed.
If the respondent does not come, the case will be listed before a Tribunal Member to decide what the next step will be.
Step 6 - Apply for an NCAT Hearing
A hearing is where a Tribunal Member listens to both sides of the case, considers the evidence presented and then makes a legally binding order.
The Tribunal Member will sit at the front of the hearing room facing the parties. Parties sit at tables facing the Member. NCAT hearings are generally sound recorded, so there is an accurate record of what is said.
Most NCAT hearings are open to the public. Be prepared to have other people in the hearing room when you are presenting your case. People such as other parties waiting for their hearing, or friends and family will sit at the back of the room. Other Tribunal Members, Conciliators, NCAT staff members and security officers may also be present.
The Tribunal Member will ask questions about your application, and both parties show their evidence and ask questions of each other. The Tribunal Member may ask that evidence is sworn or affirmed. After each party has given their evidence, the Tribunal Member will make a decision based on the evidence and in accordance with the law.
If your case involves home building, the Tribunal Member at the hearing may order an independent expert to assess the building work and prepare an expert report for NCAT and the parties. Experts possess home building-related expertise such as construction, plumbing, electrical, structural engineering and concreting.
The experts' costs will be met equally by you and the other party.
Where NCAT appoints an expert, you will not be able to call your own expert witness or tender any other expert report except with the leave of NCAT.
Learn more about engaging an expert.
When adjourning a matter, NCAT may make procedural directions and set a timetable for when they must be completed, for example, directions as to the exchange of documents.
Parties must comply with the directions and timetables set, and they cannot be altered except by leave of NCAT. If you cannot comply with the directions, you should contact NCAT.
Failure to attend hearings
If a party fails to attend a hearing, NCAT may deal with the matter in the absence of the party, including dismissal of the case or an order as to costs.
Presenting your case
The Tribunal Member will explain what happens at the hearing. The applicant will usually be asked to speak first, followed by the respondent. You may be asked to take an oath or affirmation as a formal promise, to tell the truth. The Member will usually ask questions along the way.
When it is your turn, it is important that you keep your statements concise and relevant to the hearing. The Tribunal Member may ask you to move on to your next point if you are repeating yourself, if the point you are making is not helping to clarify the issues in dispute, or if you are providing evidence that is not relevant.
How is a decision made
The Tribunal Member will generally make their decision at the hearing after the parties have presented their evidence.
An Expert Witness Report is generally considered substantial evidence, which may assist your case.
When a matter involves complicated legal arguments, the Tribunal Member may need to 'reserve' their decision. This means that a decision is not made immediately after the hearing. Instead, the Tribunal Member will take time to review the evidence and relevant legislation before making their decision at a later date.
When finalised, the reserved decision is provided to the parties in written form and contains the orders and the Tribunal Member's reasons for the decision.
You will need to provide NCAT and the other party with relevant documents in support of your case. For example:
Minutes of meetings
Plans and drawings
Photographs and film (CCTV footage).
Place your documents in a folder and label them for easy access during the hearing. Bring copies of your documents to give to the other parties and to the Tribunal Member.
If you need evidence for your hearing and the person and organisation will not provide you with that information, you can request a summons.
Affidavits and statements
Written evidence can be given to NCAT before the hearing in the form of an affidavit or a written statement.
An affidavit is a written record of the facts of the case as you see them. Affidavits are sworn or affirmed in front of a Justice of the Peace (JP) or a solicitor. Visit the NSW LawAccess website for information on how to write an affidavit.
A written statement can be used as evidence to support a case. A statement only needs to be signed by the person and does not have to be sworn or affirmed. Visit the NSW LawAccess website for information on how to prepare a statement.
Attaching documents to an affidavit or statement
If you refer to other documents in a statement or affidavit, attach and number them in the order. For example, 'Paul Jones Pty Ltd has an equal opportunity policy (see Attachment 1) and a separate harassment policy (see Attachment 2).'
Witnesses can provide a statement or affidavit in support of your case. They may also be called to give evidence in person at the hearing.
If you need evidence of a technical nature, you may want to engage an expert to provide you with a report. The expert may also give verbal evidence at the hearing.