Age Old Builders Pty Ltd v Swintons Pty Ltd

In the recent decision of Age Old Builders Pty Ltd v Swintons Pty Ltd, the court was asked to determine whether certain clauses in a domestic building contract that referred to an expert or arbitrator for dispute resolution were void under the Domestic Building Contracts Act 1995. The case arose from a disagreement between the parties over the quality of work performed under a domestic building contract. The dispute was brought before the Victorian Civil and Administrative Tribunal (VCAT) and subsequently appealed to the Supreme Court.

The primary legal issue before the court was whether sections 14 and 132 of the Domestic Building Contracts Act 1995 rendered void any reference to an expert or arbitrator in a domestic building contract. The court had to distinguish between arbitration and expert determination, and determine whether these clauses fell foul of the statutory provisions. Section 14 of the Act provides that a domestic building contract is void to the extent that it excludes or restricts the right to refer a dispute to the Consumer Affairs Victoria, while section 132 provides that a contract is void to the extent that it provides for the resolution of a dispute by a person who is not an authorised building practitioner.

In determining the issue, the court examined the nature of the clauses in question and the context in which they were used. The court found that the clauses in question did not exclude or restrict the right to refer a dispute to Consumer Affairs Victoria, and therefore did not contravene section 14 of the Act. The court also found that the clauses did not provide for the resolution of a dispute by a person who was not an authorised building practitioner, and therefore did not contravene section 132 of the Act. The court held that the clauses in question were valid and enforceable.

The court's decision provides useful guidance for parties entering into domestic building contracts. It confirms that clauses which refer to an expert or arbitrator for dispute resolution are not necessarily void under the Domestic Building Contracts Act 1995, provided that they do not exclude or restrict the right to refer a dispute to Consumer Affairs Victoria, and that the expert or arbitrator is an authorised building practitioner. The decision also highlights the importance of carefully drafting dispute resolution clauses in domestic building contracts, to ensure that they are enforceable and do not fall foul of the statutory provisions.