How to prepare documents for a building dispute at VCAT
Last updated 14 May 2024
Last updated 14 May 2024
This fact sheet covers:
How to commence proceedings
Points of Claim
Points of Defence
Use of expert reports
How to prepare affidavits and witness statements
Filing and service of documents
How to amend documents
This fact sheet provides information about how to prepare the legal documents commonly required in the Building and Property List at the Victorian Civil and Administrative Tribunal (VCAT).
This fact sheet is relevant to homeowners who have either, been through the Domestic Building Dispute Resolution Victoria (DBDRV) process or fit within one of the exceptions to the requirement that a matter go through the DBDRV process.
Except in some limited circumstances, you must make an application at DBDRV – and complete the DBDRV process – before you can commence domestic building proceedings at VCAT.
You should check with VCAT to see if you need to go to DBDRV before making an application to the Building and Property List.
Domestic building disputes are heard in the Building and Property List at VCAT.
Application forms are available on VCAT’s website.
If you start a domestic building proceeding at a court, the other party can require the proceeding to be “stayed” (this means suspended), until the proceeding is dealt with at VCAT.
In your VCAT application form, you will need to include:
Contact details for you and the other party, including their address.
If you are seeking to review a decision of a warranty insurer – the insurer’s reference number and the date you received their decision.
If the other party is a company – attach a Current Company Extract to your application. This shows the company’s name, status and registered address. You can buy a current company extract through the Australian Securities and Investments Commission.
The site address (this is the property where the works were performed by the builder).
Details about the contract (you need to show that the builder agreed to do work at your property).
Itemised details of your claim, including a list of any incomplete and/or defective works.
The amount of your claim (or what you want from the builder if it is non-monetary). You will need to provide details about how the sum is calculated.
The orders you want VCAT to make, and the grounds you are relying on.
A ‘points of claim’ document, or a document setting out the details of the claim (this requirement will be discussed below).
You will need to lodge two copies of the application form with VCAT.
If you have been to DBDRV or Building Advice Conciliation Victoria (BACV) – provide one of: a Certificate of Conciliation issued by DBDRV; a rejection letter from DBDRV; a confirmation of complaint from BACV; a dispute resolution order or a notice of breach of dispute resolution order (where the contract was ended by the owner or builder was ended as part of the DBDRV process).
If you have other supporting documents like expert reports, quotations for the cost of completing the work or fixing defects, or other relevant documents like copies of invoices, photographs etc., you can provide these when you file your application. If you don’t provide them, VCAT may make orders asking you to provide the documents later.
If you are applying to have a decision of DBDRV or the Victorian Building Authority reviewed, you need to supply documents relating to the decision:
If you are seeking a review of DBDRV’s decision to issue or amend a dispute resolution order, you must provide a copy of the dispute resolution order.
If you are contesting DBDRV’s decision to issue a notice of breach of dispute resolution order, you must provide a copy of the notice.
If you are challenging a decision to pay money out of the DBDRV Trust Fund, you need to provide a copy of the decision.
VCAT charges a fee when you lodge an application in the Building and Property List. The amount of the fee will depend on the value of your claim against the builder.
If your matter proceeds to hearing, you may also be required to pay hearing fees. The amount of hearing fees you may need to pay will depend on the amount you are claiming, and the number of days the hearing goes for.
Check the VCAT website to work out how much you will be required to pay when you lodge your application.
VCAT will generally send a letter to the other party after you lodge your application with VCAT.
You can also notify the other party that you have lodged an application with VCAT. This is done by “serving” the other party with a copy of the VCAT application and any supporting documents.
You can serve a party by:
by handing the application to the person
by sending the application by post, fax or email at their last known residential or business address, or
by leaving it at the person’s last known residential or business address with a person who appears at least 16 years old and who lives or is employed there. If you choose this option, make a note of the date and time you delivered the document, and name of the person you left the document with.
More formal service obligations apply if you have filed a Summons to Appear. If you serve a Summons to Appear, an “Affidavit of Service” is required. The Affidavit sets out who you served, what you served on that person, when you served that person, and how you served the document. You will need to file the Affidavit of Service with VCAT.
Service is a common legal term. It refers to specific ways of providing, or delivering, a legal document to another person so that the court or tribunal is satisfied that the other person has received the document.
A Points of Claim is a written statement that sets out the facts of the applicant’s matter and what result the applicant is seeking. If possible, you should lodge a Points of Claim document with your VCAT application.
A Points of Claim is not compulsory – you can just prepare a less formal document setting out the details of your claim. However, even though it’s not compulsory, VCAT may order you to prepare and file a formal Points of Claim if needed by VCAT or requested by the other party at a directions hearing.
VCAT doesn’t have a set format for Points of Claim documents. However, they do provide an example Points of Claim to help write your own. It’s a good idea to use a plain font on all documents, such as Arial, size 11.
Your Points of Claim should be written as a series of numbered short paragraphs, each containing a separate fact that is central to your claim. It should:
include details of the building contract, including the full name of the parties as set out in the contract
state the address of the property
contain fully itemised particulars of the claim and the relief or remedy sought
identify any incomplete and defective works (which may be by reference to an attached expert’s report providing such report is clearly itemised), and
refer to relevant standard form contract clauses. E.g. “clause 1.2”. It is not necessary to recite clauses in full unless the words are significant to the claim.
Particulars of a pleading provide details about how a general allegation is founded and will be proved at trial. You should include “particulars” in your Points of Claim.
For example:
On 11 July 2016, the Applicant entered into a domestic building contract with the builder to construct a two-storey house at the property (Contract).
Particulars
The Contract is in writing. A copy can be provided on request”.
For example:
The terms of the Contract included:
Particulars
Statutory warranties implied by section 8 of the Domestic Building Contracts Act 1995 (Act)
For example:
In breach of the terms of the Contract, the building works performed by the Respondent were defective and incomplete”.
Particulars
The particulars of the building works that were defective and incomplete are contained in the expert report of Jane Citizen dated 11 July 2017. A copy of the expert report of Jane Citizen can be provided on request.
For example:
As a result of the builder’s breach of the Contract, the Applicant has suffered loss and damage of $11,111.
Particulars
$11,111 is the cost to rectify the defective works and complete the incomplete works at the property as detailed in the quotation by John Smith dated 11 July 2017. A copy of the quotation can be provided on request”.
Make sure that your Points of Claim adequately outline your claim. If you don’t provide proper particulars about your claim in your Points of Claim, the other party can make a request for “further and better particulars”.
More information about Points of Claim and requesting particulars is included in VCAT’s guide on Building and Property List (building disputes) – General procedures.
You do not need to include every single detail about what happened or to repeat yourself for emphasis. A short and concise statement will make it easier for VCAT to understand the issues in your claim.
Avoid drafting your Points of Claim to address matters you think the other side will raise as a defence to your claim. Your Points of Claim should only deal with the facts of your claim. You will have an opportunity to respond to the respondent’s version of the facts at the later stage.
Do not hold back key parts of your claim to try and surprise the other side at your VCAT hearing. If you do, you may not be permitted to raise this information later.
A Points of Defence is a written statement that is similar to a Points of Claim. It is prepared by the respondent to the claim, and responds to the points raised in the applicant’s Points of Claim.
Just like the applicant’s Points of Claim, a Points of Defence is not compulsory – you can just prepare a less formal document setting out the details of your defence. However, a formal Point of Defence must be filed if it is requested by VCAT or the other party.
There may be a timeframe for filing a response. This will be clearly stated in the notice from VCAT and you must file your response within that timeframe.
VCAT doesn’t have a set format for Points of Defence documents. However, they do provide a sample Points of Defence to help you write your own. It’s a good idea to use a plain font on all documents, such as Arial, size 11.
Your Points of Defence should be written as a series of numbered short paragraphs, each responding to a point within the applicant’s Point of Claim.
You need to make it clear which paragraph of the Points of Claim you are responding to when drafting your Points of Defence.
For example:
As to the Applicant’s Points of Claim dated 11 July 2017, the Respondent says as follows:
The Respondent denies the allegation at paragraph 1.
You shouldn’t simply deny or refuse to admit the applicant’s claims without elaborating on why you disagree with the allegation.
A material fact is a fact which is significant or essential to the issue. Set out the material facts of your case in a logical order and include particulars (see above for examples).
A set-off is a claim by the respondent that the applicant also owes the respondent money, and therefore the applicant’s original demand should be reduced to reflect this.
To claim a set-off, you will first need to justify any claims that were raised in the Points of Claim.
For example:
As to the Applicant’s Points of Claim dated 11 July 2017, the Respondent says as follows:
The Respondent denies the allegation at paragraph 1.
… etc.
And the Respondent otherwise says as follows:
Or alternatively, you may say:
And the Respondent otherwise says as follows:
In your Points of Defence, you can admit to the allegation, deny the allegation, not admit to the allegation, or not plead the allegation.
If the allegation is correct and you do not dispute it, you can admit the allegation
For example:
If the applicant alleges in paragraph 2 of the Points of Claim that:
On 11 July 2017, the Applicant entered into a contract with John Smith” and the contract was in fact dated 11 July.
And the contract was in fact dated 11 July. You might say in your defence:
As to the Applicant’s points of claim dated 11 July 2017, the Respondent says as follows:
…
If you need to make a minor correction to the allegation, but you otherwise agree, you can still admit the allegation.
For example:
As to the Applicant’s points of claim dated 11 July 2017, the Respondent says as follows:
…
If you do not agree with an allegation, you can deny it and write something in your defence.
For example:
As to the Applicant’s points of claim dated 11 July 2017, the Respondent says as follows:
…
If you don’t agree with what is being said, and don’t admit it, you can “not admit” what is said.
For example:
As to the Applicant’s points of claim dated 11 July 2017, the Respondent says as follows:
…
Or alternatively, you may say:
2. It does not admit the allegation in paragraph 2
If the paragraph of the points of claim doesn’t contain an allegation against you, you can “not plead”.
For example:
As to the Applicant’s points of claim dated 11 July 2017, the Respondent says as follows:
…
A copy of any available expert report should accompany the application if your claim involves incomplete and/or defective building works.
If you don’t provide a copy of any expert reports when you file your application, VCAT may make orders for providing the information later.
If you are a respondent to a proceeding, VCAT can make orders so that you have the opportunity to provide your own expert material.
The Expert Evidence Practice note discusses what expert reports must include.
An affidavit is a written statement that sets out evidence that can be used in VCAT.
It must only contain factual and truthful information, that is, things that you have personally done, seen, heard or experienced first-hand. The contents of an affidavit are sworn or affirmed to be true by the person who writes it.
An affidavit is a serious document. If a person lies in an affidavit they can be charged with the criminal offence of perjury.
You should use the VCAT template form to draft your affidavits.
You can adopt the same formatting as our example for Points of Claims (see above) – just make sure you label the document “Affidavit of [person’s name]”, instead of “Points of Claim”.
NOTE: If you are preparing a witness statement, the same general principles relating to affidavits will also apply.
A general application for the Building and Property List does not require an affidavit. However, if your application is an urgent application for an injunction, you will need to file an affidavit.
Affidavits will be required if certain applications are made during your VCAT proceedings, such as an injunction application or summons to appear.
An injunction application may be required during your VCAT proceedings if a substantive issue arises. Read the VCAT guide on Directions hearings and urgent hearings for further information.
A summons to appear may be requested by a party or VCAT for a person to attend a hearing and give evidence or produce certain documents. Read the VCAT Summon a witness page or the VCAT Summons to appear form and affidavit of service for further information.
Affidavits must be easy to read and understand. The most effective approach is to use headings that identify the subject matter of your affidavit and what each part is about.
Under the headings you should then divide your facts into paragraphs that are short and numbered. The outline of the relevant facts may follow a chronological order that maintains a narrative of the relevant facts of the situation that has occurred.
Aside from including facts that are relevant to your claim, your affidavit should be supportive of the orders you are asking VCAT to make in your application or response.
Affidavits should be typed.
Affidavits should be printed on one side of the page only.
Affidavits should include content which is divided into numbered paragraphs.
Each paragraph of the affidavit should, if possible, cover only one topic or subject matter but can include a series of subsequent details of events for this topic.
A separate affidavit must be filed for any witness evidence relied upon.
Not all “facts” are admissible in affidavits
Do not refer to anything said or documents produced in an attempt to negotiate or settle the dispute that were made without prejudice. This is not admissible as evidence.
If you are unsure about what can and cannot be included in an affidavit, you should seek legal advice.
Do not include facts based on information received by others. This is known as hearsay. If relevant, this witness should produce their own affidavit detailing these facts to avoid this.
You do not need to include every single detail about what happened or to repeat yourself for emphasis. A short and concise statement will make it easier for VCAT to understand the issues in your claim. Try to avoid reciting conversations you had or heard.
Do not hold back key parts of your claim to try and surprise the other side at your VCAT hearing. If you do, you may not be permitted to raise this information later.
Affidavits are sworn or affirmed to be true, so make sure everything in the affidavit is truthful or you may face penalties for perjury.
Only include relevant facts rather than opinion. Facts are anything that was seen, heard, or experienced first–hand by you. Do not include information that was told to you by someone else or that is based on your beliefs or views. This is an opinion and should not be included in an affidavit.
Any document that you refer to in your affidavit or witness statement must be copied and attached to the back of your document. This is known as an ‘annexure’ or ‘exhibit’. More than one annexure or exhibit can be referred to; however you must number or letter each one consecutively in the order you refer to them.
When you refer to a document which will be exhibited to your affidavit, you should describe the document, and where it will be exhibited. It is helpful if you indent the description of your exhibits in the body of the affidavit, this will help you to check your numbering before you finalise the document.
For example:
As to the Applicant’s points of claim dated 11 July 2017, the Respondent says as follows:
…
On 10 July 2017, the builder issued an invoice to the Applicant for $11,111.
Attached and marked “JS-1” is a copy of the invoice issued by the Builder on 10 July 2017.
When you refer to a document which will be exhibited to your affidavit, you should describe the document, and where it will be exhibited. It is helpful if you indent the description of your exhibits in the body of the affidavit, this will help you to check your numbering before you finalise the document.
A certificate must be attached to the first page of each annexure/ exhibit (we have included an example of a certificate on the next page of this fact sheet). The certificate must be headed in the same way as the affidavit and identified by the deponent’s initials followed by the number of the annexure e.g. if the person signing the affidavit is ‘John Smith’, the exhibits could be labelled ‘JS-1’, ‘JS-2’ etc.
The person who witnesses your affidavit will need to sign each certificate for each separate annexure or exhibit you have attached to your affidavit. They sign where it says “before me”, and must indicate in what capacity they have signed. Lawyers usually use a stamp.
Make sure you don’t attach original documents to your affidavit.
You can attach larger documents to your affidavit, but you will need to make sure the documents can be copied.
You will need at least three copies of your affidavit after you swear or affirm it. You should file the original affidavit at VCAT, keep a copy for yourself, and serve a copy of the affidavit on any other party in the proceeding.
The deponent is the person making the affidavit.
Once you have finished preparing your document, you will need to file the documents along with your application to VCAT. You can submit your documents by:
Victorian Civil and Administrative Tribunal
Building and Property List
GPO Box 5408
Melbourne VIC 3001
When you file your application at VCAT (by post or by hand delivery), make sure you have at least two copies. The original is kept by VCAT, and the photocopy becomes your copy.
When you file the application by email or fax, you keep the original copy.
If you need to make changes to documents that you have already filed, call the VCAT Building and Construction (Building and Property List) on 1300 1 8228.
If you want to make changes to your application, you will need to write to VCAT by post or email and quote the reference number given to you when you applied. You should also attach any documents that support why you want to make a change. You may be allowed to change your application before the final hearing and if VCAT accepts the request, they will send through an order that confirms the change.
All parties will need to be notified of any changes and new copies of documents that support the change should be sent. The other party may inform VCAT why they should not allow the change, and this could lead to a directions hearing.
A record must be kept of how and when the other party was notified of the changes. VCAT members may check this record. Read the VCAT Practice note on Common procedures for more information.
This resource was last updated on 14 May 2024. This is legal information only and does not constitute legal advice. You should always contact a lawyer for advice specific to your situation. Please view our disclaimer for more information.