Updated 30 June 2020
This resource is for homeowners who already applied to VCAT to hear a domestic building dispute and want to understand:
“Joinder” is the name of the process describing the addition of a new party to the dispute once proceedings have already started.
Complex building disputes can often involve several parties who may have caused or contributed to the problems in dispute. For example, the reason building works caused you problems may relate not only to the builder, but also architects, engineers, the builder’s subcontractors, suppliers, and/or other consultant involved in the building process.
It is usually more common for a respondent to want to join other parties, for example builders joining subcontractors, but applicants can also ask VCAT to join other parties to the proceedings after it has already commenced.
What is my role in the VCAT proceeding?
To understand the information on this page, you need to understand your role in the proceedings:
You are an Applicant if you are the party that applied to VCAT to start the proceedings.
You are a Respondent if you are responding to proceedings started by another party.
If you are unsure what your role is, have a look at any orders VCAT has issued in your matter, as they would list your name as an applicant or respondent.
VCAT can order new parties to be joined to ongoing proceedings on VCAT’s own initiative or because a party applied to join another party to the dispute.
VCAT usually cannot make an order about a party unless that party is formally involved in VCAT proceedings. By joining a party after proceedings already commenced, VCAT can give that party an opportunity to respond, so that the process is fair for all parties involved in a dispute.
VCAT will only make an order to join another party to a proceeding that has already commenced if VCAT is satisfied that the proposed claim against that new party is open and arguable.
Open and arguable means that there is enough evidence to suggest that the party to be joined is involved with the dispute, and it is open to the person trying to join a third party to make that claim.
If you are the applicant, you can only ask VCAT to join another party as respondent if you have an open and arguable claim against them. This claim does not need to be the same claim you have against the original respondent, but it does need to relate to the same loss or damage that you asked VCAT decide about.
If you find out that another party may have contributed to the loss or damage the original respondent caused you, you should obtain legal advice before trying to join that new party to VCAT proceedings. Joining a new party as respondent will likely increase costs like VCAT fees and expert reports, so you should talk to a lawyer about the risks involved and how to minimise risks and costs.
If you are the applicant, you can apply to VCAT to join another party to the proceedings by taking 4 steps:
STEP 1: Complete VCAT’s ‘Application for Directions Hearing or Orders’ form.
STEP 2: Prepare an affidavit briefly setting out the facts and circumstances that support your application. Your affidavit should attach (as an exhibit) any available relevant material demonstrating how those facts are supported by evidence.
STEP 3: Prepare a draft pleading in the form of a “Points of Claim” setting out your claim against the party to be joined. If you have already submitted a Points of Claim, you will need to file an Amended Points of Claim.
STEP 4: File your Application form, affidavit and draft pleading at VCAT and, on the same day, send a copy of these documents to all parties who are already part of the VCAT proceedings.
If you have questions about how to draft affidavits or Points of Claim for VCAT, please have a look at our resource on “How to prepare documents for a building dispute at VCAT”. This resource is available by clicking here.
You will know if a respondent is trying to join another respondent if you are served with (receive) the following bundle of documents:
When you receive these documents, carefully review the respondent’s draft pleading to find out why they are trying to join another party. In the draft pleading, the respondent should have outlined at least one of the following reasons:
Maybe – this depends on many factors, including the type and strength of the joinder application. You should obtain legal advice if the respondent is asking for a contribution or an apportionment.
If the builder is seeking to join another party as a respondent for an apportionment, the outcome of the joinder application could have a significant impact on the final outcome of your case.
After VCAT receives the respondent’s joinder application, a directions hearing will likely be listed. At this hearing, the VCAT member will hear and decide the application to join a party, and give directions for the next steps in the proceeding. You should prepare for and attend this hearing.
If you are the homeowner and the builder is applying to join another party, the builder will be responsible for satisfying VCAT that the other party should be joined. The other party may also decide to participate in the hearing if they object to being joined – if this happens, VCAT may give them leave to participate as an “intervener”.
If you don’t agree with the application to join the other party, you should prepare to explain to the VCAT member at the hearing the reasons why you disagree, and bring with you copies of any relevant documents (bring a copy for you, for the VCAT member and for each party involved).
As this is a complex area of the law, we strongly recommend that you obtain legal advice and prepare to attend the VCAT hearing.
Possibly. If a new party is joined to the proceedings, you will need to consider how this impacts your claim.
If you are the homeowner and your builder is successful in an application to have another person joined to your proceeding for an apportionment (under Part IVAA of the Wrongs Act), you then have an important decision to make.
You will need to decide if you wish to pursue a claim against the new party. If you decide to pursue a claim against the new party, you will need to amend your Points of Claim. You will not be able to recover the amount of liability apportioned to that new party unless you amend your claim to pursue that new party also. For example, if VCAT decides to apportion 80% of your loss and damages to your builder and 20% to your architect (who was joined on the builder’s application), unless you have pursued a claim against your architect also you will not be able to recover the 20% apportioned to the architect.
This is a complicated area of law and how you respond to a joinder application will depend on the facts of your case. We strongly recommend that you seek legal advice at this point to help you make an informed decision.