NCAT vs VCAT: Key Differences for Building Disputes

When a building dispute between a homeowner and a builder cannot be resolved through negotiation, it typically ends up at a tribunal. In New South Wales, that tribunal is the NSW Civil and Administrative Tribunal, commonly known as NCAT. In Victoria, it is the Victorian Civil and Administrative Tribunal, known as VCAT. Both tribunals serve a similar purpose, but they operate under different legislation, follow different procedures, and have different requirements for how cases are managed and resolved.

Understanding these differences matters. If you file your application at the wrong tribunal, use the wrong forms, or miss a step that is mandatory in your state, you will lose time and potentially weaken your case. This guide provides a practical comparison of NCAT and VCAT for homeowners involved in building disputes, covering jurisdiction, filing processes, costs, timeframes, hearing formats, and appeal options.

Jurisdiction: Which Tribunal Applies to You

The threshold question is straightforward: the location of the building work determines which tribunal has jurisdiction.

NCAT handles building disputes where the building work was performed in New South Wales. It operates under the Civil and Administrative Tribunal Act 2013 (NSW) and the Home Building Act 1989 (NSW). Building disputes are heard in the Consumer and Commercial Division.

VCAT handles building disputes where the building work was performed in Victoria. It operates under the Victorian Civil and Administrative Tribunal Act 1998 (Vic) and the Domestic Building Contracts Act 1995 (Vic). Building disputes are heard in the Civil Division, specifically the Building and Property List.

If the building work was performed in another state or territory, a different tribunal applies. Queensland has QCAT, Western Australia has the State Administrative Tribunal (SAT), and each other jurisdiction has its own equivalent.

Filing Process

Filing at NCAT

To commence a building dispute at NCAT, you lodge an application through the NCAT website or in person at a registry. The application form requires you to provide details of your claim, the amount you are seeking, and the name and contact details of the respondent (the builder or contractor you are claiming against).

You must also provide supporting documents with your application, including the building contract, evidence of the defects or issues, and any correspondence with the builder. NCAT will then serve the application on the respondent and schedule a directions hearing or callover.

Filing at VCAT

Before you can file at VCAT for a domestic building dispute, you are generally required to first go through the Domestic Building Dispute Resolution Victoria (DBDRV) conciliation process. DBDRV is a free service that attempts to resolve building disputes through conciliation before they reach the tribunal.

If DBDRV conciliation is unsuccessful, DBDRV will issue a certificate that allows you to proceed to VCAT. You then lodge an application with VCAT, including your DBDRV certificate, details of the claim, and supporting documents.

This DBDRV step is a significant procedural difference from NCAT, where there is no mandatory pre-filing conciliation process.

Costs and Fees

Filing fees at both tribunals vary depending on the type of claim and the amount in dispute.

NCAT filing fees for building claims in the Consumer and Commercial Division generally range from approximately $50 for small claims up to several hundred dollars for larger claims. Fee schedules are published on the NCAT website and are updated periodically.

VCAT filing fees for building disputes in the Civil Division similarly range from around $70 to several hundred dollars depending on the amount claimed. VCAT also publishes its current fee schedule on its website.

Both tribunals offer fee waivers or reductions for applicants experiencing financial hardship. You may need to provide evidence of your financial circumstances to qualify.

Beyond the filing fees, the main cost in any building dispute is the preparation of evidence, particularly expert witness reports. These costs are similar regardless of which tribunal you are appearing before, typically ranging from $1,500 to $4,000 or more for a comprehensive expert witness report.

Pre-Hearing Requirements

The steps between filing your application and attending a hearing differ between the two tribunals.

NCAT Pre-Hearing Steps

• Directions hearing or callover. NCAT schedules an initial hearing to set directions for the case, including deadlines for filing evidence and expert reports.
• Mediation. NCAT may refer the matter to mediation, which is facilitated by a tribunal mediator. Mediation is encouraged but not always mandatory.
• Exchange of evidence. Both parties must exchange their evidence, including expert reports, by the deadlines set at the directions hearing.

VCAT Pre-Hearing Steps

• DBDRV conciliation. As noted above, this step must generally be completed before filing at VCAT.
• Directions hearing. VCAT holds a preliminary hearing to set the timetable for the case.
• Compulsory conference. VCAT may schedule a compulsory conference (similar to mediation) where a VCAT member facilitates settlement discussions.
• Exchange of evidence. Both parties exchange their evidence by the deadlines set in directions.

The key difference is the mandatory DBDRV step in Victoria, which adds time to the overall process but provides an opportunity to resolve the dispute before incurring the costs of tribunal proceedings.

Timeframes

Timeframes for building disputes vary significantly depending on the complexity of the matter, the tribunal's workload, and whether adjournments are granted.

NCAT Typical Timeframes

VCAT Typical Timeframes

VCAT timeframes tend to be longer than NCAT because of the mandatory DBDRV conciliation step and, in recent years, a significant backlog in the Building and Property List. However, both tribunals have experienced delays at various times, and actual timeframes can fluctuate.

Hearing Format

Both NCAT and VCAT are designed to be less formal than courts, but they still follow structured procedures during hearings.

NCAT Hearings

NCAT hearings are conducted by a tribunal member who may be a legal practitioner, a building professional, or both. The hearing follows a standard format:

• The applicant presents their case first, referring to their evidence and calling any witnesses
• The respondent has the opportunity to cross-examine the applicant and their witnesses
• The respondent then presents their case
• The applicant can cross-examine the respondent and their witnesses
• Both parties may make closing submissions

NCAT hearings are generally held in person at tribunal hearing rooms, though some matters may be heard by telephone or video conference, particularly for directions hearings and mediations.

VCAT Hearings

VCAT hearings follow a similar structure. One notable feature of VCAT is the more frequent use of concurrent expert evidence, sometimes called "hot tubbing." In this format, expert witnesses for both parties give evidence together, allowing the tribunal member to ask questions of both experts and to explore areas of agreement and disagreement directly.

VCAT hearings may also involve site inspections, where the tribunal member visits the property to view the defects firsthand. While NCAT can also order site inspections, they are more commonly used at VCAT in building disputes.

Expert Evidence Requirements

Both tribunals require expert evidence to comply with specific rules, but the details differ.

NCAT Expert Evidence Rules

Expert evidence at NCAT must comply with Schedule 4 of the Civil and Administrative Tribunal Rules 2014. Key requirements include:

• The expert must acknowledge their overriding duty to the tribunal
• The report must set out the expert's qualifications and experience
• The report must state the facts and assumptions on which opinions are based
• The report must distinguish between facts and opinions
• The expert must be available for cross-examination

VCAT Expert Evidence Rules

VCAT's requirements are broadly similar but are set out in the VCAT Act and relevant practice notes. Additional features include:

• The expert must provide a declaration of independence
• The tribunal may direct experts to confer and produce a joint report identifying areas of agreement and disagreement
• The tribunal may require concurrent evidence (hot tubbing)
• The expert must comply with any practice note on expert evidence issued by VCAT

Regardless of which tribunal your case is before, the quality and independence of your expert witness report are critical. For guidance on what makes a report effective, see our article on what makes a strong expert witness report.

Costs Orders

An important practical difference between NCAT and VCAT relates to costs orders, which determine whether the losing party has to pay the winning party's legal and expert costs.

NCAT generally operates on a "no costs" basis in the Consumer and Commercial Division. This means each party bears their own costs, regardless of the outcome. Costs orders may be made in limited circumstances, such as where proceedings were frivolous, vexatious, or where a party acted unreasonably.

VCAT also generally follows a "no costs" basis for domestic building disputes. However, VCAT has somewhat broader discretion to award costs in certain circumstances, including where a party has refused to participate in a DBDRV conciliation process or has acted unreasonably during the proceedings.

In practice, this means that in most building disputes at either tribunal, you should expect to pay your own expert witness fees and legal costs, regardless of whether you win or lose. This makes it important to budget for these costs from the outset.

Appeal Options

If you are unhappy with the tribunal's decision, both NCAT and VCAT provide appeal options, though the processes differ.

NCAT Appeals

Internal appeals at NCAT are heard by an Appeal Panel. You must seek leave to appeal, and the appeal is generally limited to questions of law or where there has been a significant procedural error. The Appeal Panel can affirm, vary, or set aside the original decision.

Further appeals from the NCAT Appeal Panel can be made to the Supreme Court of NSW on a question of law.

VCAT Appeals

VCAT decisions can be appealed to the Supreme Court of Victoria. Appeals are generally limited to questions of law. VCAT does not have an internal appeal panel in the same way as NCAT, so appeals go directly to the Supreme Court.

In both cases, appeals are not a simple rehearing of your case. They are focused on legal errors, and success rates are relatively low. This makes getting the first hearing right particularly important.

Side-by-Side Comparison

Frequently Asked Questions

For a complete overview, see our guide to expert witness reports for building disputes.