Why Better Expert Evidence Wins Property Claims

Damage to your home, apartment, investment property or commercial property?

Where do you start?

Evidence, Evidence and EVIDENCE!

Did I say - the evidence!?

Why? How? Who?

In any property damage building or insurance claim - the figuring out:

• what is wrong (the cause); and

• how to fix it (scope of works); and

• who was responsible; are all key issues.

Practically, these help a property owner establish how to address a cause (say stop a water flow) and how to repair.

BUT legally, these issues don’t just amount to who is responsible but amount to satisfying a cause of action and prove relief/damages. Evidence!

Remember proving:

• A section 8 Domestic Building Contracts Act claim against a builder is different from;

• A section 157 Water Act claim against a water corporation or section 16 against a neighbour and different to;

• A negligence clam against an engineer or breach of contract against another professional and different from;

• A claim under a property insurance policy.

Evidence of this kind doesn’t just manifest against a certain party. It needs to be properly obtained.

One inch out of place and a claim is not proved, a defence may be available and costs can be awarded against your client or YOU.

So don’t be offended if your lawyer asks to get better evidence. Better evidence? Yes, BETTER evidence.

Maybe the evidence obtained through your property manager, strata manager or insurer for a plumber, builder or leak detection report is right. Maybe, it even is right!

But remember as litigators we may seek more considered evidence for many reasons.

Let me give you a real example.

I once advised a property owner on a claim where they had managed it themselves and had an engineer report, a builder quote and a leak detection and mould report all making what were likely accurate written assertions.

However, orders existed for expert evidence to be filed and comply with a specific practice note and the ‘experts’ would be required to attend a conclave and trial too!

But there was an issue. A big issue!

When I contacted the experts to ask them to report in accordance with the expert practice note each said they had never heard of it. One even said I won’t do Tribunal work and had no actual mould qualification either.

Big issue. Yeah BIG issue.

Now, there are means to bring a person before a Court (subpoena) or Tribunal (summons to appear). But how do you think that will go?

So don’t be offended if your lawyer asks to get better evidence from a specific type of professional with a specific expertise, qualification or forensic experience.

It may be to ensure it is supported by objective reasoning, is set out in a manner that it will be accepted by the forum in which it is filed or to ensure the expertise and experience of the expert is of a certain standard or that questions are answered for certain legal proof.

It might just be because they want to know it can actually be relied upon!

This article is a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Tagged as:

• building disputes
• building law
• insurance law
• litigation
• property disputes
• legal practice