Statement of Claim or Summons:

Litigation in the building and construction industry can be a complicated and frustrating process. Whether one is a plaintiff for a defendant, the sheer quantity of paperwork that may be carefully assessed and analysed for a claim or a defence to be prepared, may be oppressive and daunting. The preparation of evidence itself is another matter, and this too can be the course of a great deal of stress and anxiety on part of the litigant.

Are you instituting proceedings against another party?

The first thing that must be determined is the nature of the claim that you may have against the other party and the best manner in which the dispute can be resolved. Litigation is costly and sometimes there may be better ways to diffuse a building and construction dispute. The building and construction industry has a special process through which some claims and disputes can be adjudicated. The adjudication process is handled under the Building and Construction Industry Security of Payment Act 1999 (NSW). If this is not the appropriate path, then a litigant may consider investigating options under the Alternative Dispute Resolution procedures. For more information, visitors are encouraged to see our sections on the “Adjudication” and “Alternative Dispute Resolution” practice areas.

In the event that litigation through the court system is the only viable way that a claimant may secure his rights, this will have to be approached with diligence and care. The litigation process is formally commenced with what is known as the originating process. This is either a Statement of Claim or a Summons. Depending on the value of the claim (i.e. how much is being sought) and what orders and remedies are being sought from the judge, the claim may go to a Tribunal (such as the Consumer Trader Tenancy Tribunal) or a Court (either the Local, District or Supreme Courts).

The originating process (Statement of Claim or Summons) will have what are known as pleadings, and these are separated into individual paragraphs so that the claim can be understood clearly. The pleadings will set out the cause of action, which is the right under which the litigant is suing the other party in the Building and Construction Law dispute. Drafting the Statement of Claim or Summons in a building and construction litigation matters must be completed with a very high level of detail and caution. Care must be taken so that no admission is made and so that no rights are waivered. Proper building and construction legal advice must be obtained from a civil or commercial litigator with experience in dealing with building claims and construction disputes, so that once the claim is filed, the case can be prosecuted efficiently and economically.

Are you responding to a Statement of Claim or Summons filed against you?

As with the individual who is filing a claim against a defendant, the defendant himself will also need to consider the sensitive nature of the Building and Construction Law matter, and the allegations which are made in the Statement of Claim or Summons. After being served with the originating process, the defendant will have a period of time in which to respond to it. This is a period of time established under statute and the rules of the Court. The defendant will need to obtain legal advice from a Building and Construction Solicitor as to (a) whether or not the claim is vexatious, in which case a motion may need to be filed seeking the proceedings be dismissed, or (b) the preparation of a detailed defence to the Statement of Claim or Summons.

The defence will be drafted in assimilate fashion to the Statement of Claim in that it will have pleadings which are broken down paragraph by paragraph. It should address all issues that arise in the Summons and make all appropriate denials. The defence will also be drafted so that it can be read in conjunction with the Statement of Claim or Summons, and so the real issues in dispute are apparent. Drafting a defence is also a highly sensitive process. Inferences can be made from any errors. Building and construction legal advice should be obtained from an experienced Building Lawyer or Construction Solicitor so that the preparation of these documents is completed to a high professional standard.

It should also be noted that a defendant may also be in a position to prepare a cross-claim against the litigant who has commenced proceedings. Often a dispute in the building and construction industry is a complex affair and there may be several possible claims and cross-claims that can be filed against either party. The same concerns and issues apply to the cross-claim as to the claim. For more information, see above for "instituting proceedings".

Statements of Claim or Summonses are the documents filed in a court or a tribunal under which litigation proceedings commence. It is imperative that these documents be drafted properly so that embarrassing errors do not need to be corrected at a later stage of the proceedings. In some cases, amendments to these originating processes may not be available, or may need to be made by consent of the other litigant, or with leave from the Court or Tribunal.

If you require assistance in relation to a Statement of Claim or a Summons, you may wish to contact our firm by telephone on (02) 9233 4048 or send an email to info@navado.com.au and make an appointment to see one of our solicitors. 

This webpage (and any material or wording appearing on this webpage) is provided for general information purposes only and does not constitute any Legal Advice. It does not take into account your objectives, your instructions or all of the relevant facts and/or circumstances. Navado accepts no responsibility to any person who relies on the information provided on this website. We further refer you to our Disclaimer.