Joining parties to a building dispute at VCAT

What is joinder?

“Joinder” is the name of the process of adding a new party to the proceeding once the proceeding has started.

Complex building disputes can often involve several parties who may have caused or contributed to the problems in dispute. For example, a builder may be responsible for defective building work, but the architect or building designer, engineer or other consultants involved in the works could also be responsible for part of your loss (or the builder’s loss). 

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.  

Can VCAT join other parties to my building dispute?

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.

The added party may be added as an applicant, a respondent or only as a joined party or third party.

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. 

I am the applicant and I want to join another party as respondent

When can I apply to VCAT to join another party as respondent to my building dispute?

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 consider obtaining legal advice before trying to join that new party to your VCAT proceeding. Joining a new party as respondent will likely increase costs like VCAT fees and expert reports, so you may wish to talk to a lawyer about the risks involved and how to minimise those risks and costs.  

How do I join another party to my building dispute?

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 prepare a draft Amended Points of Claim, which highlights the changes you want to make to your pleading. 

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 How to prepare documents for a building dispute at VCAT.

I am the applicant and the respondent wants to join another party

How will I know if a respondent is trying to join another party?

You will know if a respondent is trying to join another respondent or a third party or joined party if you are served with (receive) the following bundle of documents:  

• An application for Directions Hearing or Orders, asking VCAT to join another party to the proceedings as a respondent. 
• An affidavit in support of the application. 
• A draft pleading, which may take the form of a Points of Defence, or an Amended Points of Defence (if a Points of Defence has already been filed).  

When you receive these documents, carefully review the respondent’s draft pleading to find out why they are trying to join another party.

A respondent cannot add another party as an applicant, but they might tell you if they consider another applicant needs to be added. For example, if you commenced the proceeding only in your name, but there is a co-owner of the property

In their draft pleading, the respondent should have outlined at least one of the following reasons:  

Contribution (under section 23 of the Wrongs Act): that means that the respondent is seeking a contribution from a third party (the Joined Party) if VCAT finds that the third party is responsible for the same loss or damage. The respondent usually makes that “third party claim” when the joined party did not directly engage with you (as the homeowner) and does not owe a duty to you. For example, a builder may seek a contribution from a supplier of defective windows installed by the builder.  

Apportionment (under Part IVAA of the Wrongs Act): that means that the respondent is asking VCAT to share (apportion) the responsibility owed to you between all wrongdoers who may have caused your loss or damage. This usually happens when both the respondent and the third party  engaged directly with you or owes you a duty. For example, a builder may ask VCAT to join your architect for the proposes of an apportionment defence because the architect’s design was flawed and caused part of the building problem.

Do I need to respond to the respondent’s application to join another party?

Maybe – this depends on many factors, including the type and strength of the joinder application. You should consider obtaining legal advice if the respondent is asking to join another party for a contribution or apportionment.  

If VCAT agrees to join a party to your proceeding for the purposes of the builder’s apportionment defence, for you to be able to recover the proportion of loss and damage caused by that new party, you will need to amend your own points of claim to make direct allegation against that third party.

This means that 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 outcome of your case if you do not amend your pleading to claim directly against the new party.  

What happens after VCAT receives the respondent’s joinder application?

After VCAT receives the respondent’s joinder application, a directions hearing will likely be listed. At this hearing, a VCAT member will hear and decide the application, and give directions for the next steps in the proceeding. You should prepare for and attend this hearing.  

If you are the owner and the builder is applying to join another party, the builder will be responsible for establishing 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.   

Do I need to amend my claim if a new party is joined to the VCAT proceedings?

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. Again, 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.