1. The respondents' application to dismiss the claim against Ms Cassimatis is dismissed.

2. Paragraph 15 of the applicants' amended points of claim is struck out.

3. Ms Irene Cassimatis is joined as a party to this proceeding pursuant to Section 60 of the Victorian Civil and Administrative Tribunal Act 1998.

For the Applicant: Mr McAndrew of Counsel instructed by Brian Ward and Partners

For the Respondents: Mr J. Twigg of Counsel instructed by Velos and Velos

1. Mr and Mrs Anderson bought a dwelling house at 31 Beaconsfield Parade pursuant to a contract of sale dated 27 June 1996 for a price of $1M. The house had been built at the request of Ms Cassimatis by N.T. & J. Economo, trading as Economo Design and Construction, in accordance with a cost plus contract dated 28 April 1993. Mr Michael Economo one of the principals of Economo Design and Construction was and is, Ms Cassimatis' husband.

2. In accordance with the provisions of the House Contracts Guarantee Act 1987 Housing Guarantee Fund Limited, the approved guarantor, issued Guarantee No. 0503 in accordance with the regulations made under the Statute, guaranteeing the work performed by the builder from 29 April 1993 to 27 April 2000. A certificate of occupancy issued to Ms Cassimatis on 16 August 1994.

3. On 27 March 1998 the Andersons made a claim on Housing Guarantee Fund Limited referring to "damage to floor boards on lower level of dwelling". On 2 June 1998, Housing Guarantee Fund Limited accepted the claim and directed the builder to rectify the "effect of termite infestation to entire dwelling".

4. On 7 April 1999 Mr Michael T. Economo filed an application in this Tribunal's Domestic Building List by way of Application No. 216/99 against the determinations of Housing Guarantee Fund Limited. In accordance with Section 16 of the House Contract Guarantee Act 1987 this "appeal" should have been made "within 28 days after receiving notice from [Housing Guarantee Fund Limited] of the decision". On 14 December 1999 pursuant to Section 126 of the Victorian Civil and Administrative Tribunal Act 1998 I extended the time within which the appeal might be brought to 7 April 1999 and added Mr James Economo, the other principal of Economo Design and Constructions as co-applicant.

5. Meanwhile, on 1 September 1999 the Andersons brought the present proceeding. In their amended points of claim dated 18 January this year, they seek damages, interests, costs and other relief against Mr James Economo and Ms Cassimatis. The claim against Mr Economo is brought in the tort of negligence against him in his character as builder. The claim against Ms Cassimatis is brought against her in her character as vendor upon the basis that she is alleged to have engaged in misleading and deceptive conduct contrary to the Fair Trading Act 1985. The Andersons say that they have suffered loss and damage based upon the cost of rectification of the termite damage to the house, loss of use of the house, stress and inconvenience.

6. On 14 September 1999 Deputy President Associate Professor D.J. Cremean ordered, pursuant to Section 82(1)(b), that this proceeding and No. A216/99 should be heard together and at the same time.

7. Mr Twigg, Counsel for Mr Economo and Ms Cassimatis, submits that the Tribunal has no jurisdiction to entertain the claim made against Ms Cassimatis. In his submission, that claim should be dismissed and Ms Cassimatis should cease to be a party to the proceeding. He further submitted that the key paragraphs of the applicants' points of claim raising the cause of action and negligence against Mr Economo did not properly allege an arguable case and should accordingly be struck out. Mr Twigg conceded that in a general sense the facts relied upon by the Andersons could, if proven, constitute the basis for a claim of negligence. If the relevant section of the points of claim were struck out, he did not oppose the grant of leave to re-plead.

8. Mr Twigg submitted that this Tribunal's jurisdiction in non-review matters depended upon identification of an "enabling enactment", within the meaning of the Victorian Civil and Administrative Tribunal Act 1998 authorising the bringing of an application (see Section 43 of the VCAT Act). The Tribunal's powers in a domestic building matter were those appearing in Sections 53 and 54 of the Domestic Building Contracts Act 1995. Section 53 headed "Settlement of Building Disputes" authorises the Tribunal to "make any orders it considers fair to resolve a domestic building dispute". There then follow in sub-sections (2) to (5) specific powers bestowed upon the Tribunal. Section 54 defines what a domestic building dispute is. The claim made by the Andersons against Mr Economo admittedly falls within the definition of domestic building dispute. Viewed in itself the claim made against Ms Cassimatis does not.

9. Mr Twigg noted that the Andersons and their Counsel (Mr McAndrew) conceded that the claim against Ms Cassimatis could not be brought on its own as a proceeding in this Tribunal's Domestic Building List. The basis upon which it is pressed as part of this proceeding was according to Mr Twigg upon the footing that Ms Cassimatis could be joined as a party pursuant to Section 60 of the Victorian Civil and Administrative Tribunal Act 1998 and that once joined relief could be sought against her on the basis that she was then a party to the proceedings. In Mr Twigg's submission this attempted use of Section 60 of the Victorian Civil and Administrative Tribunal Act was misconceived. He submitted:

"Section 60 can only apply on a proper construction, to join a party to a domestic building dispute. The vendor must therefore be a party to the domestic building dispute and not as contemplated by the current pleadings as a separate and distinct party with a separate and distinct cause of action."

10. Mr Twigg submitted likewise that Rule 9.06 of the Rules of Civil Procedure is of no assistance to the applicant.

"This is not apposite unless it were the joinder of the vendor to the domestic building dispute. The authority relied upon should be treated with caution as the VCAT only has the jurisdiction as set out in the enabling Act and in this case Section 53 of the DBC Act. It is confined therefore to the settlement of domestic building disputes and not to a dispute as contemplated between a vendor and a purchaser arising under a sale of land contract."

11. He referred to an unreported determination of Deputy President Associate Professor Cremean in the matter of Zettl v Joslin Holdings McKeddie Caroll (1997) VCAT DB 519/97.

12. Mr Twigg submitted that my decision of Sandra Newton T/as Flower Manor v Opsymoulis (1998) VConvR 58-529 giving a wide operation to Section 60 of the Victorian Civil and Administrative Tribunal Act was distinguishable. That decision depended upon a specific section in the Retail Tenancies Reform Act, namely Section 37 which said that the parties to a retail tenancy dispute were landlord/tenant and any parties joined by the Tribunal. In any event, in Mr Twigg's submission, the ruling in Newton's case was given ex tempore and "with the utmost hesitation".

13. Mr Twigg also submitted that the Fair Trading Act 1999 was no source of jurisdiction in the present circumstances. It commenced on 1 September 1999 and to rely upon it in these circumstances would be to give it an unjustified retrospective operation. He relied upon Kraljevich v Lake View and Star Limited [1945] HCA 29; (1945) 70 CLR 647, 652; J. & P. Lemming Holdings Pty Ltd v O'Keefe [1984] VR 105, 109; Keen Mar Corporation Pty Ltd v Labrador Park Shopping Centre Pty Ltd (1988) ATPR 40-853 @ 49, 195; Western Australia v Wardley Australia Limited [1991] FCA 314; (1991) 30 FCR 245.

14. Mr Twigg also raised the question whether the sale could be regarded as "in trade or commerce" (a requirement of jurisdiction under the Fair Trading Act 1999). The applicants filed an affidavit of their solicitor dated 31 January 2000 aimed at dealing with that issue. Mr Twigg said that in the circumstances he was unable to respond to the matters raised in that affidavit. He suggested therefore that the issue of whether the sale of the house to the Andersons by Ms Cassimatis was to be regarded as "in trade or commerce", I put aside for the moment, without any admission on the respondents the question whether Ms Cassimatis sold the house "in trade or commerce".

15. Mr Twigg finally submitted that the negligence claim made against Mr Economo and apparently based upon the decision of the High Court of Australia in Bryan v Malone (1995) 102 CLR 609 was not properly pleaded. He said that the decisions of the New South Wales Court of Appeal in Council of the Municipality of Woollahra v Sved (1996) Aust Tort Reports 81-398 and of the Court of Appeal of Victoria in Zumpano v Montagnese [1997] 2 VR 252 had restricted the width of the principals apparently enunciated by the majority of the High Court in Bryan's case. He said:

"On the basis of the current state of the law for the recovery of economic loss due to negligence, not only must the defects be of a structural nature as envisaged by the decision of Bryan v Maloney that the owners must have placed some reliance on the fact that James Economo was the builder. A more general duty of care as pleaded in paragraph 15 cannot succeed. The particulars subjoined to paragraph 15 are deficient to establish reliance by the Andersons."

16. He further submitted that it was encumbant upon the pleader to identify with particularity what duty lay upon the builder to avoid what economic loss to the applicants.

17. Mr McAndrew on behalf of the applicants said that his clients allege in effect that they are entitled to recover the same loss and damage from Ms Cassimatis, arising out of the misrepresentations she made to the Andersons concerning termite protection as may be recoverable from Mr Economo, the builder. It seems likely says Mr McAndrew, that Ms Cassimatis will raise the same issues as arise in the builder's appeal against Housing Guarantee Fund Limited's determination, namely whether the builder was guilty of defective workmanship or design. The appropriate method of eradicating termites and rectifying the damage and the proper measure of damage. It was convenient therefore to have these matters determined in the Tribunal rather than to have one dispute determined here and another elsewhere, perhaps in court, which would entail not only additional expense and delay but also raise the spectre of inconsistent findings in separate proceedings.

18. Mr McAndrew relied upon my decision in Newton's case and Birtles v The Commonwealth [1960] VicRp 39; [1960] VR 247, 250. In any event, he submitted the Fair Trading Act 1999 granted the Tribunal jurisdiction to hear the claim against Ms Cassimatis. In so far as the Fair Trading Act Section 107-111 provided for the Tribunal to hear matters which were formerly within the sole jurisdiction of the Courts, he submitted the change was a purely procedural one and conformably with general principle, a procedural change to the law would operate retrospectively. He relied upon Geschke v Del-Monte Home Furnishers Pty Ltd [1981] VicRp 80; [1981] VR 856; Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261, 267 per Dixon CJ.

19. Mr McAndrew drew my attention to Section 1 of the Domestic Building Contracts Act 1995 which states inter alia

(b) To provide for the resolution of domestic building disputes and other matters by the Victorian Civil and Administrative Tribunal" [emphasis added]

20. He also relied upon Section 59 of the Victorian Civil and Administrative Tribunal Act stating that the "parties" to a proceeding include persons joined pursuant to Section 60 of the Victorian Civil and Administrative tribunal Act.

21. Given that much was said about my own decision in Newton's case, I should say something about it and the circumstances which attended it. An urgent directions hearing was brought on some nine days before the final hearing was fixed before Judge Davey. I described the dispute in these terms:

"The essence of the dispute is this. The present landlord is a purchaser from the original landlord. He says that he was given to understand that the only entitlements of the tenant which is applicant in the proceeding were for a short-term monthly lease and that options provided for in the written lease which admittedly was made available to the present landlord as part of the vendor disclosure statement had not been exercised. The tenant on the other hand asserts that the options were exercised or remained exercisable and so she remains entitled to possession for some substantial period into the future and therefore retains an ability to sell her business carried on from the leased premises."

22. There was a late application to join as additional parties the original landlord and a number of real estate agents and their agencies and their principals who were involved in the sale and letting of the premises. (1998) VconvR 58-529, 68, 122-3

23. Section 60 of the Victorian Civil and Administrative Tribunal Act provides as follows:

"(1) The Tribunal may order that a person be joined as a party to a proceeding if the Tribunal considers that--

(a) the person ought to be bound by, or have the benefit of, an order of the Tribunal in the proceeding; or

(b) the person's interests are affected by the proceeding; or

(c) for any other reason it is desirable that the person be joined as a party.

(2) The Tribunal may make an order under sub-section (1) on its own initiative or on the application of any person."

24. I concluded in particular by reference to the annotation to be found in Williams Civil Procedure Victoria paragraph [9.06.10] (Service 121) that it would be proper to join those parties. At page 62, 125 I said:

"In the circumstances therefore I conclude that it would be proper to join these parties simply to have them bound by the findings of fact which might be made or to take the benefit of them if the findings of fact go in their favour even if no relief were sought against them. The more difficult issue is whether the Tribunal has jurisdiction assuming the joinder is effected to permit relief to be sought against those parties in the nature of third party relief. With the utmost hesitation and in the present circumstances as to time which I have already described, I have come to the conclusion that the Tribunal does have that jurisdiction."

25. I reached that conclusion based upon the fact that the Retail Tenancies Reform Act whilst granting jurisdiction to the Tribunal only to deal with disputes between landlord and tenant, stated in Section 37 that the parties to a dispute included those persons who in addition to the landlord and tenant, were joined as parties by the Tribunal and further, that Section 38 of the Retail Tenancies Reform Act 1998 which sets out the powers of the Tribunal in retail tenancy matters, specifically authorises the making of orders against "a party".

26. I returned to the same theme in the Retail Tenancies List in the matter of Russfam Pty Ltd v Benassi's Shoes Pty Ltd (1999) VconvR 58-533. In the Russfam case there was a dispute as to the market rent payable for leased premises. The landlord sought a declaration that a valuation conducted by a valuer, purportedly in pursuance of the lease, had not been carried out in accordance with its terms. Part of the relief sought entailed an application for relief against the valuer. In the event I was not obliged to make a final ruling on the point. At page 68, 154-5 however I remarked:

"The definition of the Tribunal's jurisdiction in these matters is based upon the requirement that there be a "dispute between landlord and tenant". It is this requirement that has formed the basis for most of the restrictions on the jurisdiction under the old arbitral system which several Supreme Court decisions referred to earlier and relied upon by Dr Croft have proceeded from. The 1998 Act is in slightly different terms. True it is that it requires that there be a dispute between a landlord and tenant and hence the existence of privity of estate between them, nevertheless, Section 37 provides that a party joined to the proceeding pursuant to Section 60 of the Victorian Civil and Administrative Tribunal Act 1998 is to be regarded as a party to the proceeding. Section 38 which sets out the powers of the Tribunal in retail tenancy proceedings in a number of paragraphs empowers the Tribunal to give relief against "a party". A possible interpretation of these provisions is that so long as there is a dispute between a landlord and a tenant, it is possible to join other parties to the proceeding provided the requirements of Section 60 of the Victorian Civil and Administrative Tribunal Act are made out and obtaining relief against them, even if that relief proceeds from what might be regarded as "collateral arrangements" rather than the provisions of the lease itself.

This interesting question is however a matter for another day."

27. By way of contrast, in Zettl's case, relied upon by the respondents, a decision of the Domestic Building Tribunal dated 12 March 1997 Dr Cremean, considered that Tribunal's power to grant relief against a company carrying on business as a licensed estate agent pursuant to the joinder power of the now repealed Section 56 of the then Domestic Building Contracts and Tribunal Act 1995. That section authorised the old Tribunal to join "another person" to the proceeding. Dr Cremean struck out the claim against the estate agency company. He said at paragraph 9:

"However it does seem to me that "another person" must be the one who is directly related to a "domestic building dispute". I have regard to the definition of that expression in SS.31 and 54 of the 1995 Act. It is not the case that a licensed estate agent can never be directly related to a domestic building dispute. It is not the case, therefore that a licensed estate agent can never fall within S.56 or is "another person". But in this particular case, having perused the various paragraphs in the statement of claim, I cannot see how it can be maintained that the second respondent is or was directly related to a domestic building dispute. The allegations made against the second respondent relate, almost entirely, to allegations of misrepresentation. These allegations which have nothing directly to do with the carrying out of domestic building work. They do not relate to the actual carrying out of such work."

28. Regrettably Dr Cremean's reasons do not provide either the text or a summary of the allegations made against the estate agency company.

29. In Greenhill Homes Pty Ltd v Domestic Building Tribunal [1998] VSC 34; (1998) 13 VAR 353, Byrne J. considered an appeal from the Domestic Building Tribunal. The builder, Greenhill Homes, had filed an application in the Domestic Building Tribunal seeking a declaration that the building contract between it and the proprietors Mr & Mrs Volpe was terminated. The Volpes filed a counter claim seeking various relief against the company and its directors. His Honour Judge Davey, the then Chairman of the Tribunal, declined to remove the directors as parties and the builder and the directors sought judicial review under Order 56 of the Rules of Civil Procedure. The relief sought against the directors of the building company was as here, under the Fair Trading Act 1985 for allegedly misleading and deceptive conduct. Byrne J. declined to remove the directors from the proceeding. He quoted Section 56 of the 1995 Act, since repealed, which stated:

"56 At any time the Tribunal may order that a sub-contractor, insurer, supplier or another person be joined as a party to any domestic building dispute before it."

"As I have already demonstrated, my general attitude to this legislation is that it should be construed liberally where this is necessary or convenient to ensure that all domestic building disputes and associated disputes are before the Tribunal. There are indications within the Act itself which suggest that Parliament intended this result, not only in the context of the definition of "domestic building dispute". The functions of the Tribunal are not limited to hearing and resolving only those disputes. Section 52 of the Act certainly includes this function, but it provides that the Tribunal is to hear and determine, matters referred to it under the Act, including domestic building disputes." [1998] VSC 34; (1998) 13 VAR 353, 363

31. On the following page His Honour declined to apply any ejusdem generis approach to the construction of Section 56 finding that there was no genus to apply and he rejected the contention that the class of persons who could be joined pursuant to Section 56 extended only to those directly involved in the domestic building.

32. Section 56 of the 1995 Act was repealed as part of the package of measures which vested the domestic building jurisdiction in this Tribunal and abolished the Domestic Building Tribunal. It is reasonable to infer that Section 56 was repealed on the basis, amongst others, that Section 60 of the Victorian Civil and Administrative Tribunal Act would do the work that Section 56 previously did. There is in my view, therefore, every reason to give Section 60, whose words are very wide, the same wide construction which Byrne J. accorded to the provisions of the repealed Section 56 of the 1995 Act. Section 53(2)(b) of the Domestic Building Contracts Act 1995 specifically authorises the Tribunal to order the payment of money or damages by "one party to another party" in the same manner as Section 38 of the Retail Tenancies Reform Act authorises the grant of certain forms of relief against "a party". Mr Twigg correctly observed that the Domestic Building Contracts Act 1995 has no equivalent provision to Section 37 of the Retail Tenancies Reform Act. On the other hand, Section 59 of the Victorian Civil and Administrative Tribunal Act is to the same effect viz. that a person joined under Section 60 of the Victorian Civil and Administrative Tribunal Act is to be regarded as a party to the proceeding. Even in the absence of such a provision, one might have thought that it is no more than a statement of the obvious. A power to join someone as a party must by the very nature of the power, have the effect when exercised of rendering that person a party to the proceeding with all that that entails.

33. In my view, provisions such as Section 60 of the Victorian Civil and Administrative Tribunal Act and the repealed Section 56 of the 1995 Act are purely procedural in their effect. In themselves, they cannot authorise the grant of relief against a party joined. To enable the Tribunal to grant relief against a joined party, not only must there be a power of joinder but it must also be demonstrated that the general law or some statute gives a right to relief against that party in the relevant circumstances and that this Tribunal has the jurisdiction to grant that relief. In Newton's case I found that the provisions in the Fair Trading Act 1985 giving an entitlement to recover damages for misleading and deceptive conduct created a general entitlement to recover damages from parties against whom the appropriate allegations of misleading and deceptive conduct are made. The power to order a party to pay money in accordance with Section 38 of the Retail Tenancies Reform Act provided the basis for the Tribunal to exercise that jurisdiction.

34. In the present instance Section 53(2)(b) authorises the Tribunal to require a party to pay money or damages. It was not suggested that as a matter of general law (in particular the Fair Trading Act 1985) the matters alleged against Ms Cassimatis would not, if proven, give an entitlement to recovery of damages.

35. Is this situation therefore, should an order of joinder be made? On the face of it, the only basis upon which the Tribunal can join Ms Cassimatis pursuant to Section 60 of the Victorian Civil and Administrative Tribunal Act would be on the basis that "for any other reason it is desirable that the person be joined as a party". There are, as Mr McAndrew correctly submitted, a substantial number of common issues arising in the proceedings in the Tribunal concerning the Economos and the claim made against Ms Cassimatis. It is, in my view, highly desirable and economical to have all those issues determined once and for all in a single hearing. If the claim against Ms Cassimatis were heard in court at another time there would be additional cost and the possibility of inconsistent findings. In my view these considerations demonstrate that joinder of Ms Cassimatis is "desirable". The Section states that the Tribunal "may" order that a person be joined. The use of the word "may" imports a discretion. See Section 45 of the Interpretation of Legislation Act 1983. For the reasons already given I am satisfied that this is a discretion which should be exercised favourably to the applicants.

36. Mr Twigg submitted that joinder of Ms Cassimatis and an adjudication upon the claim against her would be an abuse of the Tribunal's powers because Section 53 only empowered it to exercise the various powers set out in sub-section (2) "to resolve a domestic building dispute". In my view however, the making of orders such as this is calculated to resolve domestic building disputes. The Tribunal's powers of resolution under Section 53 are twofold. First, the matter may be referred to a mediator (presumably with the intent of obtaining a mediated settlement to the dispute) or secondly, the matter may be heard and determined and various classes of relief granted. A building dispute is the more effectively resolved by hearing and determination, if all related matters are heard and determined together. Where the matter is before a mediator, mediation may be more successful where all parties are before a mediator and all related disputes can be considered. There are a number of reasons for this. First, in situations where it seems appropriate that a sum of money by way of compensation or otherwise is payable to a particular party, the more parties amongst whom the duty of raising that matter can be spread, the more likely it is that that money will be forthcoming as part of a compromise mediated process. Moreover, one party may be more willing to compromise a particular point in the central domestic building dispute if it is satisfied that it has received some sort of compromise, release or limitation of liability or at least concluded its liability in a related matter. In that way, in my opinion, it can be demonstrated that the making of orders by way of joinder and if necessary, adjudication upon collateral but related matters can be of assistance in the resolution of a core domestic building dispute.

37. In so far as the claim against Ms Cassimatis can be justified by resort to joinder under Section 60 of the Victorian Civil and Administrative Tribunal Act (as in my opinion it can be) the applicants have not proceeded in the proper manner. It is clear from the terms of Section 60 that what is envisaged is that a proceeding be commenced between the immediate parties and the further party is added only with the authority of an order of the Tribunal. Ms Cassimatis has been added here simply as one of the respondents at the commencement of the proceeding. In the Greenhill case Byrne J. was confronted with a similar problem. He remarked:

"Strictly speaking, therefore, the procedure adopted by the parties before the Tribunal was not correct. It will be recalled that the proprietors in their application, simply included their claims against the directors in the application first made. The directors responded by seeking a ruling that they should be removed from the proceeding. The correct procedure should have been for the proprietors to seek an order under S.56 for the joinder of the directors and to amend their particulars of demand accordingly. This essentially procedural matter, naturally enough, did not distract the parties or the Tribunal from addressing the real point in contention and I shall say nothing further about it." [1998] VSC 34; (1998) 13 VAR 353, 362.

38. The parties before me were no more distracted by this issue than were those in the Greenhill case. I will therefore join Ms Cassimatis as a party pursuant to Section 60 of the Victorian Civil and Administrative Tribunal Act.

39. What I have said already indicates that it is strictly unnecessary for me to consider the possible application of the Fair Trading Act 1999. Given that the matter was argued before me and is of some importance, I believe I should say something as to it. I did not hear any argument as to the approach which should be adopted to retrospectivity with respect to so substantial a statute as the Fair Trading Act 1999. It constitutes not merely a series of amendments to an existing statute but is an entirely new statute consisting of some 165 sections. Needless to say much of what is to be found within it represents a re-enactment of what was to be found in the now repealed Fair Trading Act 1985. In the circumstances I think that it would be wrong to seek to apply a single characterisation to the entire statute either as substantive or procedural for the purposes of drawing the distinction which the rules as to retrospectivity require. Whether it is proper to draw this distinction as it were, section by section, I am inclined to doubt. Nevertheless, where there is a single integrated part of such a statute dealing with a particular subject matter, it is appropriate to proceed by characterising that entire part. Part 9 of the statute is headed "Functions of Tribunal" and bestows jurisdiction on this Tribunal in what are referred to as fair trading disputes and makes rules as to its exercise. Section 107 defines what a fair trading dispute is. In Section 108 in terms to some degree similar to Section 54(3) of the Domestic Building Contracts Act to bestow certain powers on the Tribunal. Section 109 bestows additional powers on the Tribunal with respect to certain fair trading disputes including a power to declare void "any unjust term of a contract". It is common ground between the parties that the present dispute would, issues of retrospectively to one side, be regarded as a "consumer dispute" within the meaning of Section 109 and therefore subject to those additional Tribunal powers. These additional powers are in my view clearly substantive changes to the law. They are an essential component of Part 9 and the retrospectivity or otherwise of one section in Part 9 can only be judged in light of existence of Section 109. Since Part 9 therefore entails changes to the substantive law and there is nothing in the Fair Trading Act to rebut the presumption that this section has no retrospective effect, it would be wrong to regard any other section in the part, which is an integrated whole, as capable of separate analysis and designation as procedural and therefore having a retrospective effect. With respect to the present domestic building dispute, Sections 107 to 109 of the Fair Trading Act 1999 if they applied, would:

(a) give the Tribunal jurisdiction to deal with them; and

(b) authorise the Tribunal to exercise a jurisdiction unknown to the general law to declare unjust terms void.

The total effect of these Sections therefore, is substantive rather than procedural. They should therefore not be given a retrospective effect unless something appears to rebut the presumption against that retrospectivity. I have not failed to notice the striking resemblance between the Tribunal's additional powers with respect to what are defined as "consumer disputes" by Section 109 of the Fair Trading Act and the powers of the Tribunal under the Domestic Building Contracts Act 1995 bestowed by Section 53(2)(e) and sub-section (4) of Section 53. It appears that the Fair Trading Act largely transcribes the same powers which the Tribunal already had with respect to domestic building disputes and makes them applicable generally to consumer disputes and trader-trader disputes as defined in Section 109 of the Fair Trading Act. The Fair Trading Act goes further in these circumstances authorising the Tribunal to make "such orders as seem just" rather than merely declaring contractual terms unjust and void. Can it be said that since the substantive changes to the law affected by the Fair Trading Act in the present circumstances largely reiterate powers which the Tribunal already had under a different statute renders it appropriate to treat the provisions as purely procedural and therefore retrospective? In my view such an approach would be wrong. Whilst there are circumstances such as the present where it would appear that Part 9 of the Fair Trading Act creates little change to the substantive law which the Tribunal is obliged to apply, there are other circumstances where it creates a substantial change. Consider a dispute between landlord and tenant of the sort which the Tribunal has jurisdiction to deal with under the Retail Tenancies Reform Act 1998 in which the claim is for monetary compensation of $8,000. This would be a "trader-trader dispute" within the meaning of Section 109(4) and would attract the Tribunal's additional powers under Section 109 of the Fair Trading Act giving the Tribunal power in appropriate circumstances to declare a covenant of a retail premises lease void where no such power existed either in common law or equity under the Retail Tenancies Reform Act or any other piece of landlord tenant legislation. Application of the Fair Trading Act in such a dispute clearly would work to effect a substantive change in the law. In my view, Part 9 of the Fair Trading Act cannot be treated as retrospective for the purposes of some disputes and not for others. Once taken as a whole it is seen to effect a change of substantive law on the basis of any set of facts it must be reckoned as a substantive and not a procedural enactment and therefore, one which has no retrospective effect.

40. The Fair Trading Act 1999 commenced on 1 September 1999. This proceeding was commenced on 1 September 1999. Would applying Part 9 of the Fair Trading Act 1999 to the present dispute entail giving the Part retrospective operation? In Maxwell v Murphy Sir Owen Dixon described the presumption against retrospective operation of statutes as:

"the general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to past events". [1957] HCA 7; (1957) 96 CLR 261, 267.

41. This rule is not infringed merely because a statute now attaches additional legal consequences to past events. See Geschke v Del-Monte Home Furnishers Pty Ltd [1981] VicRp 80; [1981] VR 856; Nicholas v Commission for Corporate Affairs [1988] VicRp 40; [1988] VR 289. But here, each of the events which is said to give rise to the respondents' liability to the applicants occurred before 1 September and therefore to apply the Fair Trading Act 1999 to this dispute would be to give it impermissible retrospective effect.

42. I therefore put the Fair Trading Act 1999 to one side.

43. The only remaining issue is the application to strike out those parts of the points of claim which constitute the claim against Mr Economo. There is no provision in the Tribunal's statutes or rules for a "pleading summons". In my view however, the authority bestowed on the Tribunal by Section 98 to regulate its own procedure authorises it to entertain procedural devices such as pleadings, summonses, if it desires to do so. Mr McAndrew took no objection to the employment of this procedure. One of the consequences however of this application not being made pursuant to a particular section of a statute or rule of court is that the precise basis for the attack on the pleading is not articulated in any formal sense. Mr Twigg submitted that the claim against Mr Economo was not properly pleaded but he did not say in direct terms that the pleading raised no cause of action on the one hand or on the other hand, that it was embarrassing to plead to. What he did say was that it did not properly plead the cause of action which a decision of the majority of the High Court in Bryan v Maloney showed that a subsequent owner might have against the builder of a house. Clause 13 of the points pleads the building contract between Mr Economo and Ms Cassimatis. Clause 14 pleads a series of terms of that agreement. Clause 15 asserts:

"The builder owed a duty of care to the proprietors in relation to the matters referred to in paragraphs 13 and 14 hereof".

44. There then follow a series of particulars which are said to give rise to the existence of the relevant duty. Mr Twigg said it was not proper simply to formulate the duty allegedly owed in tort by reference to terms of a contract to which by definition the alleged victim of the tort was not a party. Mr Twigg relied upon the judgment of Brooking JA in Zumpano v Montagnese [1997] 2 VR 525 where His Honour conducted an exhaustive analysis of the High Court's decision in Bryan v Maloney and concluded that the duty which it imposed upon a builder in favour of a subsequent purchaser is limited to latent structural defects which affect the value of the house. There is no doubt that his Honour Mr Justice Brooking embraced such a principle. Zumpano's case entailed a claim by Mr and Mrs Montagnese, purchasers of a house which had been erected by the Zumpanos, for damages associated with failure of a sub-contractor plumber to install a boundary trap. All three judges agreed that the judgment in favour of the Montagneses should be set aside but the majority of the Court Tadgell and Phillips JJA said that :

"While we agree, too, with much that His Honour [that is Brooking JA] has written, we prefer to rest our conclusion on this: that it was not open to the Magistrate to find any negligence on the part of the appellants."

45. The view adopted by Brooking JA of the scope of the Bryan v Maloney duty therefore was not the basis on which the majority of the Court decided in Zumpano's case [1997] 2 VR 525, 544. On the following page having considered the evidence their Honours said:

"It was not open to the Magistrate, in our opinion, to find that the appellants, if bound to take reasonable care, in relation to the installation of the sewerage works, stood in breach of that duty. On ordinary principles, the appellants were not to be held answerable for the default of their independent contractor."

46. Much of the judgment of Brooking JA was a criticism, express or implied, of the reasoning adopted by the High Court of Australia. The total effect of His Honour's judgements if accepted, is that their Honours of the High Court have left the law on the liability if any of the builder of the house to a subsequent purchaser in a state of substantial uncertainty. If that is correct, it is difficult for anyone, much less a lowly Tribunal to conclude with much confidence what is or is not a proper way of pleading a claim based upon the principles of Bryan v Maloney. Nevertheless there is nothing in Bryan v Maloney which simply renders a builder liable upon the terms of a contract to a non-party subsequent purchaser, nor even to oblige a builder to take "reasonable care" to perform the terms set out in the contract. In Bryan v Maloney a professional builder had constructed a house with inadequate footings. After a subsequent purchaser had taken possession cracks appeared in the walls as a result of the inadequate footings. The principal judgment of the majority was delivered by Mason CJ, Deane and Gaudron JJ. Most of their Honours' analysis was concerned with whether a relationship of proximity existed between the builder and the purchaser. They considered the relationship of proximity between the builder and the first owner and continued:

"It is in the context of the above-mentioned relationships of proximity that one must determine whether the relationship which exists between a professional builder of a house, such as Mr Bryan, and a subsequent owner, such as Mrs Maloney, possesses the requisite degree of proximity to give rise to a duty to take reasonable care on the part of the builder to avoid the kind of economic loss sustained by Mrs Maloney in the present case." (1995) 182 CLR 609, 625

47. Their Honours answered the question in the affirmative. The duty which they held existed was a duty to take reasonable care to avoid economic loss not a duty to take reasonable care that the terms of the contract were observed or some variation upon that theme. Clearly the existence of a contract is highly relevant to the existence of proximity and duty and the content of the duty may affect the precise terms of the duty (this is one of the questions which Brooking JA denoted Bryan v Maloney failed to answer). Even making every just allowance for the fact that the law on this subject is "developing" (as Mr McAndrew submitted) the duty alleged to exist here is not framed in the manner which the joint judgment in Bryan v Maloney suggests it should be.

48. Accordingly I will order that paragraph 15 of the applicant's amended points of claim be struck out.

49. There will be leave to re-plead and I will hear Counsel as to any consequential directions that may be required and the time within which the liberty to re-plead must be exercised.

50. As previously noted the claim against Ms Cassimatis may be brought upon the basis that she is joined as a party pursuant to Section 60 of the Victorian Civil and Administrative Tribunal Act 1998 not simply included as a respondent from the outset. In the circumstances for the avoidance of doubt I will make an order of joinder pursuant to Section 60.

51. I have heard no submissions as to costs and accordingly I will reserve that question.