The first of the Unisearch series, Legal Update: Building disputes, delved into the contentious area of building disputes, which continue to be at the forefront of litigation due to the highly technical and often complex nature of the cases.

The most common types of building disputes at the moment, according to Moschoyiannis, are around contractual matters, performance matters and liability.

“In the contractual area, there are disputes with the contracts, and they become very much a litigious matter for the lawyers, but sometimes, they need experts like myself and others to interpret the documents, the drawings and the design and see where the response for these are from an expert opinion in terms of performance. Everyone may know is very prevalent what appears to be in the industry because there are so many litigations, but there are also matters of design that have been disputed as well,” he said.

“And then, in terms of liability, matters of work, health and safety, slips and falls. They do relate back to building disputes on buildings that have just been completed, and what has become more common is engaging experts early on in what appears to be a dispute. We’ve done inspections at the start of construction with given documents and retained full pending disputes.”

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Building disputes can happen at a variety of stages, not just the new build stage, he added.

“There are certain defects that do not reveal themselves initially, particularly with water damage. What could be a leak or a stain in the ceiling could, five to 10 years later, become much more serious. The problems are there, and when things are built that may not comply with the building codes in terms of stairs and landing access ways and end up being tripping hazards due to non-compliance after the building was finished 10 or 15 years ago,” Moschoyiannis said.

“There’s still an issue there for trying to find who is liable, and it could be previous owners and whatnot. So, the lawyers will open it up and they’ll bring me to form an opinion and say, look, here is a hazard. What is the issue here on compliance? And we’ll go check the regulations at the time and form an opinion about what we think should have happened.”

Building disputes have also changed and evolved over time, with lawyers now seeking advice from experts as the “nature of construction” becomes more technical and difficult for those outside of the building industry to understand.

“Some lawyers understand construction very well, but our job is to form an opinion for the benefit of the court, to explain to the judge what we think is the problem. The nature of contracts has changed in terms of the larger projects now being very much design construct contracts, different contractual process for procuring buildings in the past where the building takes on a lot of design responsibility,” Moschoyiannis said.

“So, there’s a series of subcontracting, but nevertheless, at the end of the day, when there’s a defect, it’ll come up that there may be a design issue. We need to investigate the documents, design, who was responsible, and that’s brought in more players into the litigation and more experts to sort that out.”

From a sector perspective, Yong said he’s seeing a number of key trends in how experts are now engaged in litigation, both in the court and within clients.

“Independence is still non-negotiable. The courts are placing greater emphasis on expert impartiality, so the experts have to assess the facts objectively, and they have to avoid aligning with the interests of the party engaging them. The moment an expert appears to be an advocate for one side, they really compromise their credibility and their compliance with the code of conduct. The second is that disputes are more complex, and they often require multiple experts. So, the data and our experience show that high-stakes litigation increasingly demands input across multiple disciplines,” he said.

“There are also financial and regulatory components. This requires clear coordination and a really well-defined area of expertise, so that experts stay within their swim lanes. And the last thing is that experts have to show their working, so a strong CV isn’t enough. The courts and our clients demand transparency. So, how did the expert arrive at their conclusion? Every assumption, their methodologies, the data points, they have to be clearly articulated and tested. And, of course, if the reasoning isn’t explicit, there’s a risk the evidence won’t be accepted by the courts.”

In terms of what litigators within this space should expect throughout the remainder of 2025, Moschoyiannis added that regulation in different states will start to impact building disputes – and that building disputes will also only continue to rise.

“I can see there will be changes brought about by legislation. So, for example, in Victoria, they’re consolidating the building authorities to make the larger commission, and the focus will be on the residential and in New South Wales, who are approaching it in a different way, and we have a federal government that’s also pushing for more residences. So, these changes invariably may affect building disputes down the track, hopefully less, but we don’t know if they would,” he said.

“And the strata issue is also a big issue as well, with apartment dissatisfaction from the consumers, and I don’t know how that will pan out from a political point of view, dealing with it, but it may then ultimately come back into the litigation lawyers having to resolve or advocate for disputes.”