Some time ago I acted as an advocate for a distraught couple who had brought an application to the VCAT against a builder for defective work a few years after practical completion under the DBCA 1995 Victoria. The builder was not responding to service at his last known address so the presiding Senior Member joined the insurance company (Builders Warranty Insurance – now known as Domestic Building Insurance ) as a sufficiently interested party.
The claim against the builder was circa $15000. The insurance company was represented by junior Counsel in the directions hearing.
On the back of the joinder, and after obtaining leave to speak on behalf of the applicants, I (ambitiously) put it to the hearing the that the builder had simply disappeared – he was not at the hearing and nor had he acknowledged receipt of any documents. (Note: there are three events which enliven the Builders Warranty Insurance – a. Disappearance of the Builder b. Insolvency of the Builder and c. Death of the Builder)
The barrister acting for the insurer was quick to point out that he had located the whereabouts of the builder builder who was now apparently waitering at a restaurant in a leafy suburb of Melbourne for which he tendered the details. It seems the insurance company had pre-empted the “disappearance” argument.
There was some further discussion between the Senior Member, the barrister and myself but that is essentially where it wound up – the couple had exhausted their options at Consumer Affairs and via general negotiation, and equally their quest at the VCAT was unsuccessful due to the no show of the builder.
This is an all too familiar scenario in domestic building circles – the system is heavily weighted in favour of a builder who intentionally or unintentionally shirks his or her obligations under the Act, leaving the consumer holding the baby.