How to Resolve Building Disputes
If a dispute arises between you and your builder, SPASA Victoria recommends consumers follow the advice of Consumer Affairs Victoria (CAV):
Step 1: Try to resolve the dispute yourself by discussing the issue with your builder. You should also consider:
- keeping a record of all conversations you have had with your builder (eg contracts, invoices and written communications)
- taking photographs of work that is the subject of your dispute
Step 2: If you cannot resolve the problem by speaking to the builder directly, send them a letter or email formally outlining the issue and requesting a response.
By putting your concerns in writing, you will have a record of your discussions. This can be shown to a third party if you choose to take your complaint further later on, and it demonstrates that you have made a reasonable attempt to resolve the problem yourself. You should use registered mail if you are sending your correspondence by post.
You can use the CAV Example letter for an issue regarding building work (Word, 50.5 KB).
If you need further advice about resolving the issue, you can contact the Building Information Line on 1300 55 75 59 between 9:00 am and 5:00 pm, Monday to Friday (excluding public holidays).
Step 3: If you do not receive a response from your builder within a reasonable timeframe, and are unable to resolve the dispute yourself, you can lodge an online application for dispute resolution through Domestic Building Dispute Resolution Victoria (DBDRV). The DBDRV is equally accessible to building owners and builders.
DBDRV can resolve building disputes without the cost and time often associated with courts and tribunals, and has the power to issue dispute resolution orders to resolve disputes that are not completely resolved by agreement.
If your issue is of a legal nature you may consider contacting the Victorian Law Institute on Ph: 9607 9550, or seek advice from an independent legal advisor.
Help With Your Building Project: Try the CAV Self-help Tool
SPASA Victoria recommends consumers use the CAV self-assessment building tool for your project, to help you understand aspects of the building process, including:
Delays in building projects
For all building works, including the installation of a swimming pool, you may need assistance to calculate whether the project is delayed.
About the start date
You will need to know the start date of the building period. By law, a domestic building contract for work valued at more than $5,000 must contain either:
- the date work is to start
- how the start date will be determined (for example, 21 days from obtaining the building permit). If the date is not specified, the contract must also include a statement that the builder will do everything reasonably possible to ensure work will start as soon as possible
The contract may also state whether you had to supply any information for the project to start (for example, financial approval or 'evidence of financial capacity'). The 'start date' does not necessarily refer to the date construction begins on your site. For example:
- under your contract, your builder may be obtaining the building and planning permits for you
- your contract may say the start date is 21 days after the builder gets the last permit
Allowances for delays in your contract
By law, the builder must make a reasonable allowance for delays due to:
- inclement weather, taking into account the season when work will be carried out
- foreseeable factors, such as:
- public holidays, rostered days off and weekends
- breaks in continuity of work (for example, time to let the slab cure)
- other delays due to the nature of the work
The builder must state in your contract how many days have been allowed for each type of delay. This is outlined in section 32 of the Domestic Building Contracts Act 1995.
If it is not possible to estimate how long a delay is likely to be, the builder must identify the cause of delay in the contract and state that it is not possible to estimate. This is to make sure everyone involved is clear about what may delay the project.
Delays may be reasonable if:
- they arise from circumstances beyond the builder's control
- the builder could not have foreseen the cause of delay when you entered into the building contract
Delays due to foundation issues
You should not have to pay extra to deal with problems that the builder should have identified from the foundation data. For more information, view CAVs Foundations page.
SPASA Victoria Members & Consumer Complaints
The experience of SPASA Victoria is that the most common consumer complaints do not relate to unsatisfactory workmanship, but rather poor communication, usually based on misunderstandings or poorly communicated expectations.
SPASA Victoria strongly encourages consumers to make every effort to resolve the dispute directly with the pool building business in which you have entered into a contractual arrangement. The process of resolving disputes can be time-consuming and often requires compromise by one or both parties.
SPASA Victoria does not provide legal, building, technical or engineering advice
If your builder or retailer is a current member of the Swimming Pool & Spa Association of Victoria (SPASA Victoria ), he or she is bound by the Association’s Code of Ethics.
If you have a complaint against a member of the association, alleging a breach of our Code of Ethics, we are keen to ascertain the details of the matter.
Reporting a Code of Ethics Breach to SPASA Victoria
We ask that your correspondence provides as many details as possible about the building project, the nature of the problem that has occurred and full details of the SPASA Victoria member. It may be useful to provide photos, contracts and plans.
For all complaints against VBA Registered (click to Find a Practitioner) SPASA Victoria Pool Builder members we ask that consumers also provide a copy of the DBDRV (or VCAT) orders. Or if you have pursued the matter in the courts, we ask for copy judgements.
SPASA Victoria will not initiate any internal processes until consumers explain the issue fully, and in writing. Whenever a written complaint is received by the association concerning one of its current members, a copy is forwarded to the relevant member with a request that they respond in writing.
On receipt of a response from the member, the matter is referred to the association Board. The following extract from the association Policy & Procedures describes the process that follows:
5.2 INSTITUTING PROCEEDINGS
Any allegation of serious misconduct by a member shall be first brought to the attention of the Board to consider what action, if any, should be taken.
The Board shall consider the information referred to it so as to decide whether any disciplinary action should be commenced, and no further action should be required if the allegations appear to be unfounded or vexatious or frivolous, or raise matters of a trivial nature. The Board may also decide the matter can be resolved by appropriate communications with the member, which may involve the Board seeking relevant undertaking from the member.
If the Board considers there is a substantial allegation against a member, which if found to be proved or justified, would or may involve serious misconduct by a member. The Board should resolve to institute disciplinary proceedings against the member. For that purpose the Board should appoint a Disciplinary Sub-Committee to consider and hear the matters complained of in the allegations.
A Disciplinary Sub-Committee should consist of no more than three members who are experienced and well respected persons in the industry.
5.3 GUIDELINES - DISCIPLINARY SUB-COMMITTEE HEARINGS
The Disciplinary Sub-Committee conducting any disciplinary hearing should follow well recognised rules of procedural fairness to ensure there is no denial of natural justice against any member.
The Sub-Committee should ensure that the member concerned receives proper and sufficient notice from the Office of any hearing and that the hearing is fixed for a time and place which is both reasonable and convenient to all persons concerned. Except in exceptional circumstances at least fourteen days notice should be given.
The member shall with such notice, be given proper particulars of the complaint and of any breach of rules which are charged against the member. If the complaint has been made in writing the member shall be given a copy and also copies of any other relevant documents held by the Office prior to the hearing. If the complaint or charge is not in writing, a written summary or outline should be prepared by the Office and forwarded to the member.
The member shall be given every reasonable opportunity to prepare a defence against the complaint or charge, but is not entitled to delay proceedings unduly by seeking repeated adjournments or extensions of time.
If a member, having been given proper notice of a hearing shall fail to attend without any satisfactory explanation or without requesting any adjournment of the hearing date the Sub-committee may proceed to deal with the complaint in the absence of the member.
In addition to the Sub-committee the Credentials Officer shall be entitled to attend any hearing and assist the Sub-committee as required with details of any relevant matters or documents held by the Office in relation to the complaint or charge.
If it is found that any Sub-committee member has a conflict of interest it should forthwith be declared and, if challenged by the member charged, the Sub-committee member concerned should disqualify himself from participating further in the hearing.
If as a result of disqualification by conflict of interest there remain less than three Sub-committee members, the hearing should not proceed until the Board appoints eligible persons to make up a Sub-committee of three members to hear the proceedings.
At the hearing a member must be given every reasonable opportunity to present his response to the complaint or charge. If new evidence is produced at the hearing, of which either the member or the Office has no previous knowledge, an adjournment should be granted by the Sub-committee at the request of either the member or the Credentials Officer so that either party has an opportunity to present a reply to that evidence.
After hearing the evidence and allowing the member all reasonable opportunity to make submissions on the evidence, the Sub-committee should then consider that evidence and submissions and make its finding purely on the basis thereof, without taking any other matters into account.
If the Sub-committee finds that a complaint or charge is proved against a member it should afford the member the opportunity to make submissions as to any penalty to be imposed, before determining what penalty to recommend to the Board.
Where there are a number of complaints or charges against a member, each one should be dealt with separately as far as possible, with the member being given the opportunity to respond separately to each one, before any decision is made as to whether the complaint or charge is upheld or proved. However in considering penalty, the Sub-committee is entitled to take all charges or complaints into account.
If the member does not attend a hearing but submits a written statement of arguments or submissions by or on behalf of the member by any person including a legal practitioner, the Sub-committee shall consider them. However, without prior express approval legal representation is not permitted at the hearing and only in the most exceptionally serious circumstances should the Sub-committee give permission for legal representation.
5.4 BOARD DECISIONS AND REVIEW
The Sub-committee shall report to the Board its findings in regard to the complaint or charge and its recommendations as to any penalties which should be imposed by the Board. Such report should be tabled at the next Board meeting. The Board may either approve and confirm the Sub-committee’s decision, or not approve it or refer the matter back to the Sub-committee for further hearing. If the Board approves the Sub-committee’s decision it should not impose any different penalty. If it does not approve the decision it may impose a lower penalty, or no penalty at all, but it should not impose a higher penalty without referring the matter back to the Sub-committee for further hearing.
The decision of the Board shall be communicated in writing to the member as soon as possible after the Board meeting. If the decision is to impose a termination or a suspension of the membership, the Board shall include in such notice to the member the date from which the termination or suspension shall take effect. If the penalty is in the form of a fine, the Board shall notify the member the date within which the fine shall be payable. Unless there are special circumstances all fines should be payable within fourteen days from the date of the notice.
5.5 RIGHT OF APPEAL
Upon receipt of the notice the member shall have the right, upon written application made prior to the date upon which the penalty shall take effect or the fine shall be payable, to directly address a meeting of the Board, if the member should wish to make further representations to the Board as to the offence or as to the penalty imposed. Delivery of such written application to the Office will result in a stay of the penalty until the further Board meeting and if necessary the Office or the President may convene an emergency Board meeting at short notice to consider the matter.
At such Board meeting the member shall be entitled to appear personally, but without legal representation, and/or submit a written statement of any submissions made on behalf of the member. After considering any further representations by the member the Board may review its previous decision and make orders at that meeting varying the decision or referring the matter back to the Sub-committee to conduct a further hearing of the matter.
However any penalty previously imposed should not be increased by the Board without referring the matter to the Sub-committee.
Penalties imposed should be consistent with the complaint or charge and reflect the member’s previous history of disciplinary matters. The aim of the disciplinary system is to obtain compliance with the rules rather than to punish members. There should be a graduated set of penalties designed to encourage or compel proper modification of behaviour, before applying the ultimate punishment of expulsion or termination of membership.
Any failure by the member to pay a penalty by way of fine within the time limit set for payment, or otherwise to comply with the terms of any penalty, shall be considered at default within the meaning of Article 12 and will render the member liable to be treated as a non-financial member and to suffer suspension or termination of membership.
Outcomes of the association Disciplinary Proceedings are not made public.
Finally, if consumers want to lodge a formal complaint about a builder to the Victorian Building Authority, this can be actioned HERE.