Expert Paradise  By Bailey Compton 12 Oct 2023

The world has gone mad with report writing!

We do not seem to be able to do anything in this world without somebody providing an expert report! It seems to follow our government’s behaviour of always having to do a “feasibility” on everything. Remember, it took the Government something like seven feasibilities to understand we needed a second airport in Sydney. Now that I have criticised this world of report writing, I need to bring you to the importance of experts in defect cases before NCAT and the Courts.

Lawyers think they are the most important person in relation to building defect claims. Unfortunately, most lawyers do not know a claw hammer from a set of tweezers. Most lawyers think a buzz saw is something you use to cut your hair. In relation to defect matters, the lawyers rely on the experts.

In proceedings before any Court or Tribunal, the Court will consider experts from both sides. If it is a matter where the Owners Corporation is seeking compensation for defects to a property from a builder, the Court will hear from both the Builder’s expert and the Owners Corporation’s expert. They will weigh these two experts’ findings and make a determination. The lawyer really only summarises the matters, keeps the claim within the legal perimeters and acts as a secretary for the creation of evidence. It is the expert you select which often determines the success or failure of your matter.

In a matter before NCAT last year, we had an excellent expert. Sometime between him providing his report and the Hearing, he had major heart surgery. By the time the Hearing came around, our expert was not in a position to compete with the other side’s expert. This led to a good case becoming a difficult case.

The case law is clear; if you want to make a defect claim, you need to obtain a report from an expert. That expert report should be put to the builder before proceedings are initiated. We now have the second reason for an expert: we need it because the Courts require it before we start.

It is hard to select an expert. It is often selected because of the alliances with the Owners Corporation and the particular Solicitor. Owners Corporations should always seek a curriculum vitae from three experts before appointing any to undertake a report. It is always important that you ask for the following:-

1. In what cases has the expert provided a report; and
2. Somebody must look up those cases to see how the expert was considered by either the Court or the Tribunal.

If the expert is the most important person to your case, the selection of that expert becomes fundamental. Take some time, ask the right questions, and do the research if you want to obtain the best outcome for your Owners Corporation.