The Hardest Part of a Property Dispute Is the Uncertainty
One of the hardest parts of a property dispute isn’t the law.
It’s the uncertainty and the system.
Most mums and dads don’t expect to end up in a dispute about their home.
Then something goes wrong.
A building defect.
Water damage.
A failed renovation.
A dispute with a builder, plumber or neighbour.
Or an insurance claim that is denied.
Suddenly, they are expected to understand contracts, insurance policies, expert reports, liability, causation, evidence and dispute resolution.
And they want certainty.
Am I going to win?
How long will it take?
The problem is the uncertainty.
So people do something completely understandable.
They create their own certainty!
They tell themselves they have a strong case.
Interestingly, I often find sophisticated commercial clients approach disputes differently.
A business owner is more likely to get advice early, sit with uncertainty and then ask the difficult questions:
“What don’t we know?”
“What is the risk?”
“What evidence do we need?”
At the beginning of a dispute, you don’t know the other side’s case.
You don’t have their defence.
You don’t have the documents they have.
You don’t know what their experts will say.
And litigation isn’t about what’s fair based upon a general consideration of what happened it is about proving a cause of action and the necessary elements.
A good building and property damage lawyer doesn’t reinforce what a client wants to hear. They address uncertainty.
They gather evidence in a methodical way that has two benefits:
(1) to potentially prove a claim; and
(2) to understand how to fix the property.
So, going to a lawyer after commencing proceedings is topsy-turvy!
This is why I advocate strongly for 2 things:
- Access is not a solution:
Our dispute resolution systems could do much better. AFCA and DBDRV are designed to make access easier.
But making a process accessible doesn’t mean that someone understands whether they have a good claim.
The system encourages people to pursue first and ask experts later. That wastes the industry’s time and the meaningful big and real cases get lost in the numbers.
- Expert advice for certainty
I regularly see clients obtain expert engineering, plumbing and building advice themselves when they don’t understand the law or have experience gathering evidence. They assume it’s easy or they can teach themselves. Big mistake!
Then they embark on a claim that’s not formulated and the system encourages it!
My advice is that lawyers need to be part of the system earlier and the system needs to encourage homeowners to engage with experts. Only when this occurs will we actually see fairer outcomes for both homeowners, building practitioners and insurers
This article is a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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