Construction litigation & evidence preservation.

In construction litigation, in principle whoever asserts a claim must prove it. You therefore have to show that a defect exists, what causes it and what its remediation costs. If this proof fails, the action fails, even if the defect actually exists. This is precisely why the state of the evidence is often more important than the legal question.

On top of this comes the time pressure. During the first six months after handover the presumption under section 924 ABGB works in your favour. After that the burden of proof is reversed: you have to show that the cause already existed at handover. For this an expert needs the condition that has not yet been repaired wherever possible. Anyone who waits too long or repairs prematurely destroys their own evidence.

The independent proceedings for taking evidence under sections 384 to 389 ZPO secure the evidence before the main proceedings run. They are admissible where it is to be feared that a means of evidence will be lost or its use made more difficult, for example because building work would cover the defect. The court appoints an expert who documents the current condition, the causes and the repair costs.

Important is the limit of the procedure: preservation of evidence alone generally does not preserve any limitation period. The warranty period under section 933 ABGB continues to run, so the main action must be brought in good time. It therefore makes sense to think of preservation of evidence and action together from the outset, so that the secured evidence is not rendered worthless by a missed deadline.

The court-appointed expert produces a finding and opinion on the cause, extent and remediation costs of the defect. Their findings strongly shape the outcome of the proceedings, because the court regularly follows them on technical questions. All the more important is that the questions to be put are complete and that the opinion is examined critically.

To be distinguished from this is the private opinion you commission yourself. It clarifies the cause, serves as an initial assessment and as leverage in settlement, but in proceedings it counts as qualified party submission and not as expert evidence in the narrower sense. Often the combination makes sense: the private opinion for quick orientation, the court opinion as the supporting evidence.

Anyone who conducts construction litigation bears a cost risk. The principle is set out in section 41 ZPO: the losing party reimburses the successful party the costs of the proceedings. In practice, however, a party rarely wins one hundred per cent. With only partial success section 43 ZPO applies, the costs are set off against each other or apportioned in proportion to success. Anyone who prevails with half of their claim often remains stuck with a corresponding part of the costs, including part of the expert fees.

The expert fees under the GebAG and the court fees under the GGG in particular, which are based on the amount in dispute, can be considerable. A sober weighing of prospects of success, amount in dispute and the opponent's solvency is therefore worthwhile. A well-prepared settlement limits the cost risk and often leads to a robust result faster than a contested judgment.