The Role of Expert Witnesses in Body‑Corporate Building Disputes
With Australia’s growing dependence on strata living, especially in densely populated cities like Sydney, Melbourne, and Brisbane, the number of strata-titled properties has surged. According to the Australian Bureau of Statistics, over two million Australians now live in strata schemes. But this increase comes with a spike in complaints related to common property defects, substandard workmanship, and builder non-compliance.
Bodies such as the NSW Civil and Administrative Tribunal (NCAT) and the Victorian Civil and Administrative Tribunal (VCAT) have been inundated with cases involving issues like water ingress, structural failure, and incomplete works. These matters often require more than anecdotal evidence or owner frustration — they demand impartial, technically sound assessments.
An expert witness plays a pivotal role in cutting through confusion. Their job is not to support a side but to provide the tribunal or court with an informed, unbiased opinion that clarifies the technical aspects of a dispute. This independence builds trust, helps resolve conflict, and supports a just outcome.
What Is an Expert Witness?
An expert witness in Australia is defined under the Evidence Act 1995 (Cth and NSW, s79) as someone who has “specialised knowledge based on training, study, or experience” and whose opinion is based substantially on that knowledge. They are appointed to assist the tribunal, not to advocate for a particular party.
In strata and building disputes, expert witnesses typically have qualifications in building surveying, engineering, architecture, or specific construction disciplines such as waterproofing or fire safety systems. Their role is to provide independent and expert insight that assists in interpreting the facts through the lens of construction law and industry standards.
Unlike a layperson’s testimony, expert opinion is permitted in legal proceedings because it offers clarity on complex matters. But with this privilege comes an overriding duty to the tribunal: the expert must remain unbiased, transparent, and stick strictly to their field of expertise.
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Why Expert Witnesses Matter in Body-Corporate Disputes
Strata disputes are rarely straightforward. They often stem from highly technical issues that general lawyers, strata committees, or owners may not fully understand. Misinterpreting building defects or compliance breaches can derail a case or delay resolution.
Expert witnesses help:
- Translate technical jargon into clear findings
- Determine whether a defect genuinely breaches codes or standards
- Identify root causes, such as design flaws or construction errors
- Present findings in formats that are admissible and persuasive in tribunal settings
Typical issues requiring expert involvement include:
- Waterproofing breakdown in balconies or bathrooms
- Cracking in walls, slabs, or structural elements
- Fire separation non-compliance
- Mechanical ventilation and plumbing faults
- Non-compliant cladding materials
Owner Inspections’ Advantage: Our team provides comprehensive analysis supported by photos, thermal imaging, and code references, allowing legal teams and strata managers to understand the issues clearly and act confidently.
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Where Expert Witnesses Are Most Needed
Body-corporate disputes often arise when defective building work affects multiple lot owners or shared amenities. These are high-stakes situations with financial and safety implications.
Common disputes requiring expert evidence include:
- Cracked or unsafe concrete slabs in underground parking
- Poorly installed or failed waterproof membranes causing rising damp
- Missing or corroded balustrades and façade elements
- Disputes over repair obligations (common vs lot owner responsibility)
- Builder warranty claims post-handover (especially within the statutory 6-year major defect period)
Legal and Ethical Duties of an Expert Witness
Being an expert witness carries legal obligations that must be strictly observed. These responsibilities ensure that the tribunal receives accurate, impartial advice free from external influence.
According to the Uniform Civil Procedure Rules 2005 – Schedule 7:
- An expert’s primary duty is to the court or tribunal, not the client
- All relevant facts, whether favourable or unfavourable, must be disclosed
- Conflicts of interest must be avoided and declared upfront
- Only areas within the expert’s actual expertise should be addressed
A legally compliant expert report includes:
- The expert’s credentials and experience
- Instructions received from the party
- Documents reviewed and relied upon
- Analysis methodology (e.g. destructive testing, thermal scans, standards referenced)
- A clear opinion with supporting logic and documentation
- A statement confirming the expert understands and complies with their duty
Why Owner Inspections stands out: Every report we deliver follows this structure. We understand the burden of proof and ensure that our methodology is transparent and replicable, giving courts and tribunals confidence in our findings.
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Understanding the Makita Criteria
The Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 case is a cornerstone of admissible expert evidence. It laid out five requirements:
- The expert must have specialised knowledge
- The opinion must be based wholly or substantially on that knowledge
- The reasoning leading to the opinion must be clearly explained
- The facts upon which the opinion is based must be explicitly stated
- The opinion must logically follow from the stated facts and reasoning
This means an expert can’t simply say, “In my opinion, it’s defective.” They must show their working.
At Owner Inspections, we align every expert report with the Makita criteria to ensure it meets the standards expected by NCAT, VCAT, and QCAT. Our reports not only offer opinions but explain exactly how those opinions were formed, grounded in codes like the NCC, AS 3740, and relevant manufacturer specifications.
How Expert Witnesses Support Dispute Resolution
An expert witness is often involved at multiple stages of a dispute. Their role is not limited to producing a report but includes active participation in efforts to settle the matter before reaching the courtroom.
The process usually includes:
- Property inspection (may involve invasive testing or moisture meters).
- Review of architectural plans, builder’s scope, and photographs.
- Compilation of evidence in a detailed, tribunal-compliant report.
- Participation in expert conclaves or joint expert conferencing.
- Appearance at tribunal hearings to clarify findings under oath.
In many cases, disputes are resolved during mediation once expert findings are presented, saving thousands in legal fees.
Owner Inspections provides:
- Evidence-based reports suitable for mediation and adjudication
- Collaboration with legal teams to refine issues
- Flexible attendance options for hearings (in person or remote)
The Evolving Role of Expert Witnesses
As construction technology and legal processes evolve, so does the function of the expert witness. Today, their involvement is not confined to post-dispute reporting. Increasingly, strata bodies and developers are using experts for:
- Preventive inspections before property handover
- Digital defect mapping using drones and BIM tools
- Ongoing audits during construction to flag compliance risks
- Post-defect rectification reviews to confirm effective remediation
Proactive expert engagement can reduce liability, protect value, and avoid disputes altogether.
Forward-thinking strata committees are now embedding expert assessments as part of their long-term asset management strategy.
How to Choose the Right Expert Witness
Not all experts are created equal. Choosing the right one can determine whether your case is dismissed or taken seriously.
What to look for:
- Current qualifications and licences (e.g. VBA, QBCC registration)
- Experience in tribunal or court settings
- Strong reputation for impartiality and thoroughness
- Clear, jargon-free communication style
- Use of technology (e.g. thermal cameras, drone imaging)
- Ability to meet deadlines and document properly
Ask these critical questions:
- Can they explain complex issues in plain language?
- Do they offer fixed pricing and timelines?
- Will they be available for joint conferencing or cross-examination?
Why choose Owner Inspections:
- Proven record of tribunal-admissible reports
- Transparent pricing, with no hidden extras
- Fully independent from any construction or insurance interests
- Reports enhanced with clear visuals and code references
Getting the Most Value from Your Home and Building Investment
Strata disputes can drag on for months, creating stress, financial loss, and strained relationships. Engaging an expert witness early can turn the tide by providing clear, trusted, and neutral evidence.
Expert witnesses:
- Protect your rights and financial interests
- Guide legal teams with technical accuracy
- Support fair outcomes based on facts
Need a reliable expert witness report for your body-corporate dispute?
Owner Inspections delivers neutral, tribunal-compliant insights that bring clarity and confidence to your case. Contact us today for fast, professional service trusted across NSW, VIC, and QLD.