Victorian Numbered Acts

BUILDING LEGISLATION AMENDMENT (CONSUMER PROTECTION) ACT 2016 (NO. 15 OF 2016) - SECT 15

After clause 12A of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 insert —

        " 12B     Costs in relation to domestic building work disputes generally

    (1)     This clause applies despite section 109 to a domestic building dispute that is a domestic building work dispute.

    (2)     Subject to subclause (3), the Tribunal must make an award of costs against an unsuccessful party to the dispute if the dispute had been referred for a conciliation conference and the party—

        (a)     refused to participate in the conciliation conference; or

        (b)     did not participate in the conciliation conference in good faith.

    (3)     The Tribunal is not required to make an award of costs against a party (the first party) under subclause (2) if it is satisfied that it would be unfair to do so, having regard to—

        (a)     whether another party has conducted the proceeding in a way that unnecessarily disadvantaged the first party to the proceeding by conduct such as—

              (i)     failing to comply with an order or direction of the Tribunal without reasonable excuse;

              (ii)     failing to comply with this Act, the regulations, the rules or the enabling enactment;

              (iii)     asking for an adjournment as a result of subparagraph (i) or (ii);

              (iv)     causing an adjournment;

              (v)     attempting to deceive another party or the Tribunal;

              (vi)     vexatiously conducting the proceeding; and

        (b)     whether another party has been responsible for prolonging unreasonably the time taken to complete the proceeding; and

        (c)     the relevant certificate of conciliation; and

        (d)     any other matter the Tribunal considers relevant.

        12C     Costs for withdrawal of application

    (1)     This clause applies if—

        (a)     a party to a domestic building work dispute applies to the Tribunal for the review of a decision to issue a dispute resolution order under Part 4 of the Domestic Building Contracts Act 1995 ; and

        (b)     the party withdraws the application.

    (2)     Despite section 109, the Tribunal must award costs against the party that withdrew the application unless the Tribunal is satisfied that it would be unfair to do so.

        12D     Costs on review of decision to issue dispute resolution order

    (1)     This clause applies despite section 109.

    (2)     This clause applies to an application to the Tribunal for review of a decision to issue a dispute resolution order.

    (3)     If the applicant is the builder, the Tribunal may award costs against the builder if the determination of the Tribunal is—

        (a)     to affirm the decision to issue the dispute resolution order; or

        (b)     to vary the dispute resolution order to increase the obligations on the builder or decrease the obligations on the building owner.

    (4)     If the applicant is the building owner, the Tribunal may award costs against the building owner if the determination of the Tribunal is—

        (a)     to affirm the decision to issue the dispute resolution order, including a dispute resolution order that includes a finding referred to in section 49D(1) of the Domestic Building Contracts Act 1995 ; or

        (b)     to vary the dispute resolution order to increase the obligations on the building owner or to decrease the obligations on the builder.

    (5)     In determining whether to award costs under this clause, the Tribunal must consider—

        (a)     whether the application was vexatious, frivolous or lacking in substance; and

        (b)     any certificate of conciliation relating to the domestic building work dispute to which the dispute resolution order relates; and

        (c)     any other matter the Tribunal considers relevant.".

Part 3—Regulation of building work and building practitioners

Division 1—Interpretation