Litigation

Litigation refers to the formal process of submitting a dispute to determination by the courts. Usually litigation is conducted by lawyers acting for the parties. Proceedings are commenced when one party, the ‘plaintiff’, files a writ with a court, and then serves that writ on the other party, known as the ‘defendant’. Having been served, a defendant must file ‘an appearance’ within the prescribed time limit. Failure to enter an appearance may result in the matter being determined in the defendant’s absence.

After entering an appearance, the parties usually exchange ‘pleadings‘. Pleadings are detailed documents which identify the facts that the parties rely on for the remedy sought, or in defence of the claim.

An important consideration in construction disputes is whether the construction contract contains an arbitration clause or a clause in which the parties agree to an alternative dispute resolution process. If a construction contract does include an arbitration clause or agreement to pursue another process (such as expert determination) and court proceedings have been commenced, a stay of the court proceedings may be ordered by the court. This will either temporarily or permanently stop the action from proceeding to enable the parties to comply with the process agreed in the contract.

Most courts operate a construction or building cases list managed by judges with experience in building disputes.