What do you want to do ?
Respond to an application – Building and construction disputes
When you get a notice from VCAT, find out what this means for you and decide what to do.
What the notice means
If you’ve received a notice from us, someone has made an application against you to VCAT – the Victorian Civil and Administrative Tribunal. This means they have a dispute with you and have applied to VCAT to have it resolved.
You are called the respondent. The person who made the application is the applicant.
Try to settle
Even if an application has been made against you, you can still try to resolve the dispute yourselves at any time before a hearing.
Get help and advice before you come to VCAT
We can help you understand how to respond to the application. We can’t give you legal advice or tell you what to write in your response. These organisations may be able to help you.
Why you should come to VCAT
It’s very important that you don’t ignore the application made against you. At VCAT, you can have your say and explore options to resolve the dispute.
If you don’t come to a hearing, we can make a decision that affects you and can be enforced by a court.
How much VCAT costs
There is generally no fee for you to defend yourself at VCAT, but there may be other costs involved. For example, if you:
- make a counterclaim (your own claim against the other party)
- decide to use a lawyer
- have expert witnesses prepare evidence for you.
You can ask for these costs to be paid by the applicant in the hearing. AT VCAT each party pays their own costs unless the member decides it is fair that another party pays your costs.
You need to pay your own out-of-pocket expenses such as travel, parking or time off work.
Important
Whenever you email or write to VCAT about your case you must also send a copy to the other parties.
What happens next
1
You’ve received a notice from VCAT
2
Read and understand the documents
Carefully read and understand the notice and the application made against you.
We sometimes ask you to provide us with material or documents before you come to VCAT. We may also ask you to attend a directions hearing where we decide on what will happen next in the case.
The notice we send you tells you what you need to do next.
If you need legal help and advice there are organisations that can help you.
3
Decide if you want to make your own claim
If you have your own claim against the applicant, you can submit an application to VCAT. This is called a counterclaim. You may need to pay an application fee and share payment of the hearing fees with the applicant.
Don’t confuse defending yourself against a claim with making your own claim. If you simply want to defend yourself against the applicant's claim, you don’t need to make your own application.
For example, if the claim against you is by the builder for the payment of money it says you owe under a contract, and you think the work is incomplete or defective, you can make a counterclaim asking for an order for the builder to complete or fix the works, or pay you an amount so you can arrange to have it completed or fixed.
Submit your counterclaim as soon as possible after receiving the notice from VCAT.
If it’s a small claim we can arrange to have both claims heard together.
For other cases we tell you when we can hear your case at a directions hearing.
4
Send your documents to everyone involved in the case
If you are attending a hearing or mediation at VCAT before there has been a directions hearing, you must send copies of any documents that support your case to VCAT and to all other parties in the case.
You need to send these before you come to VCAT.
If you’re attending by phone or videoconference, make sure you do this by email and by the deadline we tell you in your notice.
Documents might include your points of defence, receipts for building work, evidence of damages, evidence from building experts and/or copies of a contract.
What are points of defence?
This is a document responding to the application that says if you agree or disagree with the case and why. This is also called a defence.
5
Prepare your case
You need to be ready to present facts and answer questions about the case. There are documents to organise and decisions to make.
The notice you receive from us tells you how we will handle your case. Find out how you prepare for: directions hearing, mediation, compulsory conference or final hearing.
You can choose to speak on your own behalf when you come to VCAT. If you want to use a lawyer or other professional to represent you, find out if you can for your case.
6
If you settle the dispute before you are due to come to VCAT
If you reach an agreement (settle) before are due to come to VCAT, you can use this sample terms of settlement to record what you and the other parties have agreed to. You might want to get legal advice to check if the sample wording is right for you.
Tell us by email or by post that you have reached an agreement. All parties need to confirm this. Don’t send us a copy of your agreement.
VCAT will then make an order to finalise the case. We usually make an order that the case is struck out with a right to apply for reinstatement, and no orders as to costs.
What is a strikeout with a right of reinstatement?
A case that has been struck out and can be re-opened. If we strike out a case, any party can ask us to re-open it.
7
Ask for any support services you need
We offer services such as interpreters and security, as well as disability, family violence and Koori support.
8
Check the hearing details
Check the time, date and location (if you are coming to VCAT in person). This is shown on the notice we send you.
If you are coming to VCAT in person, look at the location and plan how to get there.
You can find out the time and room for your hearing at Upcoming hearings after 4.30pm on the day before your hearing.
9
On the day
At VCAT you may come to a mediation, hearing or a compulsory conference. At a mediation or compulsory conference you try to reach an agreement with the help of an independent mediator or a member.
If you are coming to a hearing, find out about what to expect on the day – including how to behave, and how the hearing works.
If you are attending by phone or videoconference
If you are attending by phone or video make sure you’re ready at the time we give you. (It’s too late to ask to attend by phone on the day of the hearing.)
Find out how to join a phone or videoconference.
If you are coming to VCAT in person
Arrive at least 30 minutes early to allow time to get through the security screening (similar to security at the airport) and find your hearing room.
When you arrive:
- Check your room at Upcoming hearings or speak to a staff member if you need help finding your hearing room.
- Go to the hearing room and be ready to present your case.
- Speak to a staff member if you have arranged security, disability support, an interpreter, or need help setting up your devices.
10
Get an outcome
You may reach an agreement (settle) at a mediation or compulsory conference. This agreement is put in writing and signed by all parties.
If you come to a hearing, the VCAT member makes a decision and gives an order. An order tells parties how the case has been decided and any action they must take. For example, ordering one party to pay another. All parties must follow VCAT's orders.
We give you the order at the end of the hearing or send it to you after the hearing. We will always give you reasons for the order we make, with the exception of an interim order. You can ask for these reasons in writing within 14 days of the hearing.
Help and support
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What do I do if I’m the wrong person?
If you get a letter or notice from VCAT to say you’ve been named in a VCAT application but you’re not the right person:
- speak to the person who made the application right away. Their details are in the letter we sent you. Confirm you’ve done this in writing, and send a copy to us
- apply for a directions hearing or order to ask to be removed from the application or to apply for the case to be dismissed
- talk to the member at the start of the hearing.
Find out about our commitment to a fair hearing for all parties
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Should I get a lawyer?
VCAT cannot give legal advice. If you do choose to get legal advice, you will need to pay any costs.
If you want to talk about what you should do, you can access free or low-cost legal advice or find a private lawyer.
If you want a lawyer or other professional representative to speak on your behalf at VCAT, let the other party know in writing before the hearing and ask permission when the hearing starts. You will need to explain why.For some case types you have an automatic right to representation.
If the claim is for goods and services under $15,000, we generally don’t allow a lawyer or other professional representative to speak for you at VCAT.
If you do choose to get legal advice, you’ll need to pay any costs.
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What happens if I miss my hearing?
What happens if you miss the hearing depends on if you’re the applicant or the respondent.
- If you’re the applicant and you don’t come to the hearing, the hearing can’t go ahead and your application may be dismissed or struck out
- If you’re a respondent and you don’t come, VCAT may make a decision that affects you and can be enforced by a court. For example, the member could make an order for costs against you.
If you have a reasonable reason for not coming, and you didn’t have someone come for you, you may be able to apply for a review and rehearing (called ‘reopening an order’).
You need to make this application within 14 days of finding out about the order. We may not agree to your request if you do not have a good reason for not attending. -
What’s a counterclaim?
If you have your own claim against the applicant, you can submit an application with VCAT. This is called a counterclaim.
Don’t confuse defending yourself against a claim with making your own claim. If you simply want to defend yourself against the applicant's claim, you don’t need to make your own application.
For example, a plumber is taking you to VCAT because they claim you didn’t pay them. Your counterclaim is that the plumber didn’t perform the work properly and didn’t complete the work you hired them to do. You want VCAT to order them to finish the job, or to pay the cost of another plumber to fix the defects and finish the job.
To make your own claim, you have to pay an application fee when you submit your application. The fee depends on the type of case, your fee category (standard, concession, corporate) and the value of your claim.
If you decide to make your own claim:
- Submit your claim to VCAT as soon as possible before the hearing.
- Write the reference number of the application made against you on your own claim form. This means both claims can be heard together.
- When you receive the hearing notice for your claim, contact us if both claims are not listed at the same date and time.
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What do I do if I haven’t received documents?
If you haven’t received documents that the other party is using to support their case within seven days, contact them directly to ask for a copy. Their contact details are on the application.