Applicant v Respondent

84 Mr Turnbull is a structural engineer who gave evidence on behalf of Dr Milonas. The Senior Member considered Mr Turnbull's qualifications and experience to be 'impressive and very appropriate to the task. He was an impressive witness who provided a sound explanation for his opinions'.[73] IAL objected to Mr Turnbull's evidence that the cost of excavating the pool and associated earthworks would be $80,000 to $100,000 but the objection was overruled.[74] The Senior Member accepted the reconstruction methodology recommended by Mr Turnbull which entailed removal and replacement of the front fence; access from the front and underpinning by way of bore piers.[75]

85 Mr Turnbull disagreed with the report prepared by Mr Richardson on behalf of IAL that the cost of excavation and earthworks would be $14,000. Mr Turnbull's evidence was that Mr Richardson's evidence was 'fivefold short of the exercise'.[76] Mr Turnbull's evidence was that:

I would have thought that something closer to 80 to 100 thousand dollars would be the sort of mark. The piles would be sort of five - four or five thousand dollars ... work, 14 piles there and plus the steel, plus the infill. Yes, I would expect ... more. In general figures, around $100,000 or $80,000.[77]

This evidence provides a foundation for the Senior Member accepting the submission advanced on behalf of Dr Milonas that the cost of underpinning by way of bore piers would be $90,000.

86 Unless IAL can establish that the Senior Member erred in accepting the evidence of Mr Turnbull, there is no basis for its challenge the Senior Member's finding that the cost of demolition, removal and rebuilding of the pool exceeded the $200,000 limit under the policy. Mr Preller accepted that the cost of demolition, removal and rebuilding of the pool was $123,731, inclusive of a retention allowance.[78] This sum allowed $2,090 for excavation and earthworks.[79] Unless the Senior Member erred in accepting the evidence of Mr Turnbull that the cost of installing bore piers was in the range of $80,000 to $100,000, the cost of demolition, removal and rebuilding of the pool exceeds the $200,000 limit under the policy.

87 In truth, IAL challenges the weight accorded by the Senior Member to the evidence of Mr Turnbull compared to the evidence of Mr Preller and Mr Richardson. This does not constitute an error of law. IAL's challenge to the Senior Member's finding that the cost of demolition, removal and rebuilding of the pool exceeded the $200,000 policy limit has no real prospect of success. Leave to appeal is refused in respect of questions 16 and 17.

88 The Tribunal ordered IAL to pay Dr Milonas' interest pursuant to statute on the sum of $200,000 from 18 May 2017 until the date of payment. Dr Milonas' further and better particulars of loss dated 18 May 2017 included a claim for interest pursuant to s 57 of the Insurance Contracts Act 1984 (Cth). Section 57(1) and (2) of the Insurance Contracts Act provides:

(1) Where an insurer is liable to pay to a person an amount under a contract of insurance or under this Act in relation to a contract of insurance, the insurer is also liable to pay interest on the amount to that person in accordance with this section.

(2) The period in respect of which interest is payable is the period commencing on the day as from which it was unreasonable for the insurer to have withheld payment of the amount and ending on whichever is the earlier of the following days:

(a) the day on which the payment is made;

(b) the day on which the payment is sent by post to the person to whom it is payable.

89 The Senior Member did not make any finding that it was unreasonable for IAL to have withheld payment of $200,000 from 18 May 2007. Mr Marzella submitted that it is implicit in the Tribunal's order that the Senior Member had determined, in accordance with s 57(2) that it was unreasonable for IAL not to have made payment of the sum of $200,000 to Dr Milonas immediately upon receipt of the further and better particulars of loss and damage.[80] I do not accept this submission. The power to make an order pursuant to s 57 of the Insurance Contracts Act is contingent upon a finding that it was unreasonable for IAL to have withheld payment of $200,000. The Tribunal's order that IAL pay interest from 18 May 2017 required a finding that it was unreasonable for IAL to have withheld payment of $200,000 once it received Dr Milonas' particulars of loss and damage.

90 Although the particulars of loss and damage claimed payment of $200,000, the components of the claim included amounts which form no part of the Senior Member's assessment of Dr Milonas' loss. The particulars of claim include a claim for $54,000 for 'interest on original damages' and a claim for punitive damages in the sum of $34,397.[81] It was not unreasonable for IAL to have withheld payment of $200,000 prior to being put on notice of evidence supporting a conclusion that the cost of demolition and reconstruction of the pool would exceed $200,000.

91 Mr Turnbull gave evidence in respect of the cost of excavation and earthworks being $80,000 to $100,000 on 18 March 2019. This evidence, which was critical to the Senior Member's finding that the cost of excavation, demolition and removal of the pool would exceed $200,000, was not foreshadowed prior to 18 March 2019. Prima facie, it was not unreasonable for IAL to have withheld payment of $200,000 prior to this evidence being led before the Tribunal. However, whether it was unreasonable for IAL to have done so post 18 March 2019 will be a matter for the Tribunal to give further consideration to upon remittal of the question of interest to the Tribunal.

92 I grant IAL leave to appeal on questions of law 18 and 19 and uphold the challenge to that part of order 2 requiring IAL to pay Dr Milonas interest pursuant to statute on the sum of $200,000, calculated from 18 May 2017 to date of payment.

93 The Senior Member ordered IAL to pay Dr Milonas' costs of the proceeding from 21 December 2017 to 8 January 2020, such costs to be assessed by the Costs Court, in default of agreement on the relevant County Court scale applicable at the time when the costs were incurred on a solicitor-client basis. Rule 1.07 of the Victorian Civil and Administrative Tribunal Rules 2018 provides a default scale of costs as follows:

Unless the Tribunal otherwise orders, if the Tribunal makes an order as to costs, the applicable scale of costs is the County Court costs scale as defined in Rule 1.13 of Chapter I of the Rules of the Country Court.

94 The County Court no longer has its own scale of costs. The County Court Civil Procedure Rules 2018 r 1.13(1) provides that 'County Court costs scale' means a fee or charge that is 80 per cent of the applicable rate in Appendix A to Chapter I of the Supreme Court (General Civil Procedure) Rules 2015, or in the case of a circuit fee, the amount in schedule 1 to the County Court Civil Procedure Rules 2018. Rule 63A.01 of County Court Civil Procedure Rules 2018 requires the Supreme Court Appendix to be read as though each reference to the Supreme Court was a reference to the County Court.

95 The Supreme Court (General Civil Procedure) Rules 2015 do not make provision for the award of costs on a solicitor-client basis. Costs are awarded on either a standard or indemnity basis. There is therefore an internal inconsistency in the order requiring IAL to pay Dr Milonas' costs on a solicitor-client basis in accordance with the County Court costs scale. The County Court costs scale now operates by reference to the Supreme Court costs scale which makes no provision for solicitor-client costs. Putting this inconsistency to one side, it appears that the Senior Member intended to make a special costs order. IAL's primary challenge to this order is that it was not afforded an opportunity to make submission on the question of costs before being subject to a special costs order.

96 The Senior Member concluded that there were grounds pursuant to ss 109(3)(a)(ii); 109(3)(b) and 109(3)(e) of the VCAT Act to order IAL to pay Dr Milonas' costs of the proceeding for the period commencing immediately after 20 December 2017 to the date of judgment.[82] Prior to 20 December 2017 Dr Milonas had represented herself. Section 109(2) and (3) of the VCAT Act provides:

(2) At any time, the Tribunal may order that a party pay all or a specified part of the costs of another party in a proceeding.

(3) The Tribunal may make an order under subsection (2) only if satisfied that it is fair to do so, having regard to -

(a) whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding by conduct such as -

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse;

(ii) failing to comply with this Act, the regulations, the rules or an enabling enactment;

(iii) asking for an adjournment as a result of (i) or (ii);

(iv) causing an adjournment;

(v) attempting to deceive another party or the Tribunal;

(vi) vexatiously conducting the proceeding;

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding;

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law;

(d) the nature and complexity of the proceeding;

(e) any other matter the Tribunal considers relevant.

97 The Senior Member did not make any finding that the conduct engaged in by IAL constituted a failure to comply with the VCAT Act, regulations, rules or an enabling enactment. Any such finding would reflect adversely on IAL. Before the Senior Member had regard to s 109(3)(a)(ii) IAL should have been afforded an opportunity to address any provisional finding that it had failed to comply with the VCAT Act, regulations or rules. Further, it is implicit in the Senior Member's reliance upon s 109(3)(b) that she considered that IAL was responsible for unreasonably prolonging the time taken to complete the proceeding. The basis of any such finding is not disclosed in the reasons. The litigation was hard fought on both sides. The adjournment of the proceeding following the first six days of hearing was a direct consequence of Dr Milonas having represented herself and having failed to lead evidence which the Senior Member considered may have been critical to her claim succeeding. Based on my review of the transcript of the proceeding it does not appear that IAL was responsible, any more so than Dr Milonas and her legal representatives, for unreasonably prolonging the time taken to complete the proceeding.

98 Ultimately, the Senior Member might conclude that Dr Milonas is entitled to an order for costs based on the nature and complexity of the proceeding. The legal and factual issues in the proceeding were certainly complex. Dr Milonas succeeded in the proceeding. It is a matter for the Tribunal re-exercising the discretion conferred by s 109(2) as to whether, and if so, and to what extent the Tribunal has regard to s 109(3)(d) of the VCAT Act. On remittal, the Senior Member will also have to reconsider the question of whether any costs order, if made in Dr Milonas' favour, should be made on a standard or indemnity basis. If the Senior Member proposes to exercise the discretion to order costs on an indemnity basis, it will be necessary to identify the matters which justify the making of such an order.

99 I grant IAL leave to appeal on questions of law 20 and 21. I refuse leave to appeal in respect of questions 22 and 23. Mr Stuckey QC disavowed any reliance on question 22.[83] No submission was made in respect of question 23 during the hearing on 28 and 31 May 2021. I uphold IAL's challenge to order 3 of the Tribunal's orders on the basis of questions 20 and 21.

100 I shall provide the parties with an opportunity to make submissions on the costs of the proceeding. My provisional view is that any order for costs should reflect the relative success of the parties in the proceeding. Dr Milonas has succeeded in upholding the Tribunal's order that IAL is liable to indemnify her in the sum of $200,000. IAL has successfully challenged the Tribunal's orders in respect of interest and costs. The primary issue in the application for leave to appeal concerned the construction of cl 6B of the policy. My provisional view is that, based on Dr Milonas' success in respect of the principal issue in the proceeding, IAL should pay 75 per cent of her costs, including reserved costs, on a standard basis to be taxed in default of agreement. If either party wishes to put a different position, they will be afforded an opportunity to do so.

1. The applicant's application for leave to appeal on questions of law 1 to 17, 22 and 23 is dismissed.

2. The applicant is granted leave to appeal on questions of law 18, 19, 20 and 21 and the appeal on those grounds is upheld.

3. Paragraph 2 of the Tribunal's orders of 8 January 2020 is varied by deleting the words 'plus interest pursuant to statute calculated from 18 May 2017 to date of payment'.

4. Paragraph 3 of the Tribunal's orders of 8 January 2020 is set aside.

5. The proceeding be remitted to the Tribunal constituted by Judge Jenkins, Senior Sessional Member, for hearing and determination of the following issues:

(a) whether Insurance Australia Ltd should be ordered to pay interest on the sum of $200,000, and if so, from what date; and

(b) whether Insurance Australia Ltd should be ordered to pay Dr Milonas' costs of the proceeding in the Tribunal, and if so, on what basis.

6. If Judge Jenkins is not available, the Tribunal shall be constituted as determined by the President of the Tribunal.

1 Did the Tribunal err in finding that the written contract between Construction Facilities Pty Ltd and Paramount Building Solutions Pty Ltd (trading as Paramount Pools) was as a matter of law entered into by Construction Facilities as agent for the Respondent?

2 Whether there was any evidence to support the Tribunal's finding that the written contract between Construction Facilities Pty Ltd and Paramount Building Solutions Pty Ltd (trading as Paramount Pools) was as a matter of law entered into by Construction Facilities as agent for the Respondent?

3 Did the Tribunal fail to give reasons that disclosed its path of reasoning to explain why it was rejecting the objective meaning of the written contract between Construction Facilities Pty Ltd and Paramount Building Solutions Pty Ltd and concluding that Construction Facilities entered into it as agent for the Respondent?

4 Should the Tribunal have concluded on the evidence before it that the contract between Construction Facilities Pty Ltd and Paramount Building Solutions Pty Ltd ended at or about the time the Respondent dismissed Construction Facilities Pty Ltd as builder from the site?

C. When is Loss and Damage Sustained for Defective Building Work

5 Did the Tribunal fail to identify the correct legal test for when loss and damage was suffered in relation to defects within the meaning of clauses 6A and 6B of the Home Warranty Insurance policy?

6 Did the Tribunal err in concluding that the time that loss and damage is sustained in relation to defects within the meaning of the Home Warranty Insurance policy is different to the time that it is sustained under the common law, namely at the time the defect is discovered or manifests itself?

7 Did the Tribunal fail to properly identify the test for when loss and damage is sustained in relation to defects within the meaning of the Home Warranty Insurance policy?

8 Whether there was evidence upon which the Tribunal could conclude that the Respondent was aware of any defect (unspecified) as at November 2014?

9 Did the Tribunal fail to give reasons capable of explaining or disclosing its path of reasoning for determining how and when the Respondent suffered loss and damage within the meaning of the Home Warranty Insurance policy?

10 Did the Tribunal act contrary to its obligation under section 98(1)(a) of the Victorian Civil and Administrative Tribunal Act to comply with the rules of natural justice in permitting the Respondent to rely, in final submissions, upon the contention that the Appellant was estopped from relying upon clause 6A of the Home Warranty Insurance policy, where the Appellant had had no notice of the claim at the time evidence was adduced?

11 Did the Tribunal err in concluding that its findings of fact raised an estoppel precluding the Appellant from relying upon the terms of the Home Warranty Insurance policy?

12 Did the Tribunal fail to give reasons that disclosed its path of reasoning to explain why it was rejecting the evidence of Mr McNees as to what occurred on his attendance at the Respondent's property and adopting the contrary evidence of the Applicant?

E. Breach of Natural Justice: Breach of Duty of Good Faith

13 Did the Tribunal act contrary to its obligation under section 98(1)(a) of the Victorian Civil and Administrative Tribunal Act to comply with the rules of natural justice in permitting the Respondent to rely, in final submissions, upon the contention that the Appellant had breached its duty of utmost good faith, where the Appellant had had no particulars or notice of the claim at the time evidence was adduced?

14 Did the Tribunal err in its identification of the meaning and content of the duty of utmost good faith under sections 13 and 14 of the Insurance Contracts Act?

15 Did the Tribunal fail to give reasons that disclosed its path of reasoning to explain:

(a) what findings of fact it was making about the Appellant's conduct; and

(b) why that conduct was in breach of the duty of utmost good faith?

16 Did the Tribunal misapprehend the evidence before it in relation to the quantification of loss and damage?

17 Did the Tribunal fail to give reasons that disclosed its path of reasoning to explain why it was adopting the amounts additional to the estimate of Mr Preller that it awarded?

18 Did the Tribunal correctly identify the statutory test for awarding interest upon any award?

19 Did the Tribunal fail to make the necessary factual findings or give reasons that disclosed its path of reasoning to explain why it determined to make the award of interest that it did?

20 Did the Tribunal act contrary to its obligation under section 98(1)(a) of the Victorian Civil and Administrative Tribunal Act to comply with the rules of natural justice in not affording the Appellant a right to make submissions on the question of costs after making its findings and before ordering the award of costs on an indemnity basis?

21 Did the Tribunal make the necessary factual findings or give reasons that disclosed its path of legal reasoning that explained:

(a) how the Appellant had failed to act with due regard to the legitimate interests of the Respondent;

(b) how the Appellant failed to make adequate disclosure to the Respondent;

(c) how the Appellant failed to act fairly to the Respondent;

(d) how the Appellant failed to give a timely and informed response to the Respondent's initial claim;

so as to identify why a cost order for indemnity costs of the proceeding was appropriate?

22 Did the Tribunal identify any legal principle abrogating the Appellant's right to rely upon the terms of the Home Warranty Insurance policy in respect of an indemnity of $200,000 inclusive of reasonable legal costs?

23 Did the Tribunal act contrary to its obligation under section 98(1)(a) of the Victorian Civil and Administrative Tribunal Act to comply with the rules of natural justice in granting the Respondent the right run a further trial after the initial trial had concluded and the Appellant filed its final submissions?

1 The Appellant agreed to issue a policy of Home Warranty Insurance for a contract between Construction Facilities Pty Ltd and Paramount Building Solutions Pty Ltd which was established at trial and accepted by the Tribunal as the relevant written contract. There was no legal basis for the Tribunal's conclusion that the true contract was otherwise than as contained in the written document.

2 There was no evidentiary basis for the Tribunal's conclusion that the true contract was entered by Construction Facilities as agent for the Respondent. The Respondent had denied any knowledge of that contract by Construction Facilities and all of the documentary evidence was inconsistent with that conclusion, including the Home Warranty Insurance policy issued by the Appellant.

3 The findings of the Tribunal at [70] do not disclose any basis for a finding that Construction Facilities, in signing a contract in its own name, should be held to have done so as an agent for the Respondent or why the Appellant should be fixed with such a characterisation.

4 The Respondent's evidence was generally to the effect that Paramount Building Solutions was not seen on site after April 2007. Her evidence was that Construction Facilities was dismissed from the site in November 2008 or even earlier. That state of affairs was supported by the documentary evidence.

5 If the two parties to a construction contract have both ceased to perform it and have no further commercial interest in having it performed it should be inferred that they have abandoned it. On the evidence neither Construction Facilities nor Paramount Building Solutions took any step to further perform the contract after April 2007. For the purposes of calculating the policy period the building contract had ended by the end of 2008 after Construction Facilities was dismissed from the site.

C. When is Loss and Damage Sustained for Defective Building Work

6 The Tribunal determined that the test for when loss and damage is sustained for the purposes of the Home Warranty Insurance policy is a different test to the common law in Victoria and Australia for when loss and damage is sustained by building work that is carried out that contains defects, namely when the defect is discovered or otherwise becomes known or manifest.

7 The Tribunal did not identify a clear alternative measure in rejecting the common law position, nor explain when loss and damage would be sustained under the terms of the Home Warranty Insurance policy.

8 The correct measure is the same as in the common law and the decision was in error: loss and damage was only sustained when the Respondent discovered that the pool was too short.

9 The alternative finding of the Tribunal that the Respondent was aware of 'defects' in November 2014 is made in the absence of any evidence from the Respondent that she was aware of any particular defect in the pool that was not part of its incomplete state.

10 In making that alternative finding the Tribunal failed to identify what that defect was or any circumstance by which that conclusion was arrived at, including any aspect of the Respondent's evidence to that effect.

11 The Respondent in final submissions on 26 June 2019 sough to raise a range of legal arguments as to liability, including an argument that the Appellant should be estopped from relying upon the requirement that loss must occur within the policy period because the Respondent had given evidence that before she completed a claim form in November 2014, an unidentified person at the Appellant had told her over the phone to tick the box relating to incomplete works. This argument had not been advanced previously when the Respondent was cross-examined in November and December 2017. There was no opportunity to cross-examine her in light of this contention. The Appellant objected to it being relied upon but the Tribunal considered and accepted it. This was manifestly unfair to the Appellant.

12 The Tribunal does not seek to identify with precision what it was that the Appellant represented to the Respondent. It does not seek to identify what the Respondent did or refrained from doing as a result of any representation. It does not seek to address how any representation might continue operating after the rejection of the Respondent's claim in February 2015. It does not seek to identify with precision how the Respondent would be injured if the estoppel was not imposed.

13 The Tribunal's argument that a claim that the pool has not been completed necessarily means that the pool is defective and that, therefore, both the owner and the insurer should be treated as being aware of all defects in the construction of the pool is contrary to the terms of the Home Warranty Insurance policy.

E. Breach of Natural Justice: Breach of Duty of Good Faith

14 At the time the Respondent gave evidence and was cross-examined, no notice or particulars of this allegation had been given. To allow it to be argued in final submissions was a breach of natural justice.

15 The test apparently applied required an insurer to respond not simply to the claims made upon it formally and informally, but to undertake an investigation on behalf of the insured to identify those claims that an insured might bring against it. That misapprehends the scope of the duty.

16 The Tribunal does not, in its reasons, make clear what test or standard it was holding the Appellant to, nor what conduct it concluded had breached the duty. The Tribunal's finding was general and non-specific and did not seek to explain how the duty was breached. It is not possible to ascertain whether the Tribunal is of the view that the Appellant acted dishonestly or negligently, or to some other standard.

17 The Tribunal had before it the evidence of Mr Preller for the Appellant whom it assessed as 'an impressive witness who gave considered evidence and also made appropriate allowances'. It also had Mr Mladichek whose evidence was so unreliable that the Respondent disavowed reliance upon it.

18 The Tribunal did not make reasoned determination about the scope of the work or the reasonable costing of those works. Instead it took Mr Preller's costing and added approximately $140,000 to it without explaining how it was making that assessment. In fact it was simply accepting the submissions of the Respondent that were in turn not based upon any coherent evidence.

19 Interest was only awardable in respect of an insurance claim under section 57 of the Insurance Contract Act, which permits an award from the date that it was unreasonable for the insurer to have withheld payment. The Tribunal allowed interest from the date the Respondent first raised a claim for defects with the pool in the unsupported amount of $47,470, being May 2017. That was the first possible day that the Appellant could have paid the Respondent anything in respect of her claim for defective construction.

20 The Tribunal did not give reasons as to why by that date, or any other date, it was unreasonable for the Appellant to have withheld payment of $200,000 from the Respondent, particularly in light of the Tribunal's rejection of the Respondent's own evidence (as opposed to submissions) as to the proper quantification. The Tribunal has misapprehended the test it was required to apply.

21 The Tribunal did not afford the Appellant the opportunity to make submissions as to the question of costs under section 109 of the VCAT Act in light of its finding in the proceeding. In making such a special costs order without giving the Appellant an opportunity to be heard it failed to accord it natural justice.

22 The Tribunal did not, in its reasons make clear findings of fact nor explain why they caused it to exercise its discretion as it did. It's [sic] purported findings are at such a high level of generality that they cannot be attributed to any of the evidence or findings of fact, but they do all appear to relate to conduct prior to the commencement of proceedings, not the conduct of the proceedings itself. As such they would not satisfy the criteria for a costs order nor a special costs order.

23 Whilst recognising that the Home Warranty Insurance Policy limited the indemnity to $200,000 including the reasonable costs of enforcing the Home Warranty Insurance policy against the insurer, the Tribunal held that the Appellant had abrogated its right to rely upon that limitation by unidentified but reprehensible conduct. There is no legal principle that would abrogate the limit of the indemnity and so enlarge it.

24 The Tribunal afforded the Respondent so many indulgences that the cumulative effect was to breach the rules of natural justice by unfairly subjecting the Appellant to unfair prejudice.

[1] CB1003, 'Progress Claims Summary for Construction Facilities Pty Ltd'.

[2] Milonas v Insurance Australia Limited (Building and Property) [2020] VCAT 26, [105] ('Tribunal Decision').

[3] Transcript of Proceedings, T 95 L 22 (28 May 2021).

[18] Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148(2A) ('VCAT Act').

[19] Minister for Planning (Vic), 'Domestic Building Insurance Ministerial Order' in Victoria, Victoria Government Gazette, No S 98, 23 May 2003 ('Ministerial Order').

[23] Transcript of VCAT Proceedings, T 303 L 28-30 (18 December 2017).

[29] See generally DTR Nominees Pty Ltd v Mona Homes Pty Ltd [1978] HCA 12; (1978) 138 CLR 423; Bakers Investment Group (Aust) Pty Ltd v Caason Investments Pty Ltd [2014] VSC 598, [480].

[30] Applicant, 'Appellant's Submissions', 7 June 2021, [9].

[31] Applicant, 'Appellant's Amended Submissions', 19 April 2021, [50].

[34] [2006] NSWSC 377 ('Multiplex Constructions').

[38] Cf Yeung v Santosa Realty Co Pty Ltd (2020) 60 VR 161, 181 [83].

[39] Hawkins v Clayton (1988) 164 CLR, 588 (Deane J) ('Hawkins v Clayton').

[41] Applicant, 'Appellant's Amended Submissions', 19 April 2021, [45] (emphasis in original).

[42] [1993] VicRp 4; [1993] 1 VR 27 ('Pullen').

[45] [2014] QCA 233; [2015] 1 Qd R 476.

[46] Ibid 504-5 [45] (citations omitted).

[47] Ibid 506 [53]. See also Damien Cremean, Michael Whitten and Michael Sharkey, Brooking on Building Contracts (LexisNexis Australia, 6th ed, 2020) ch 10, 241.

[48] Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10; (2013) 247 CLR 613, 629 [24].

[50] Ibid 629 [25] (citations omitted).

[52] CB1787-804, Alann Richardson, 'Inspection Report', 28 June 2017.

[56] Brewarrina Shire Council v Beckhaus Civil Pty Ltd [2005] NSWCA 248, [69] ('Brewarrina'); Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613, 617.

[57] [2005] NSWCA 248.

[58] Ibid [67]-[69] (emphasis added).

[59] CB299, Respondent, 'Outline of Submissions', January 2018, [96].

[60] Applicant, 'Appellant's Amended Submissions', 19 April 2021, [50].

[61] Hawkins v Clayton (n 39) 588; see also Multiplex Constructions (n 34) [26].

[63] Transcript of Proceedings, T 145 L 24 (31 May 2021).

[64] CB298-9, Respondent, 'Outline of Submissions', January 2018, [91]-[97] (emphasis in original).

[65] Tribunal Decision (n 2) [218]-[219].

[66] Cf Kozanoglu v Pharmacy Board of Australia [2012] VSCA 295; (2012) 36 VR 656, 676 [121]; Forster v Legal Services Board [2013] VSCA 73; (2013) 40 VR 587, 610 [113].

[67] Glass (a pseudonym) v Chief Examiner [2015] VSCA 127; (2015) 50 VR 577, 598 [81].

[68] Chopra v Department of Education and Training [2019] VSC 488, [21]-[23].

[70] Myers v Medical Practitioners' Board of Victoria [2007] VSCA 163; (2007) 18 VR 48, 58-60 [42]-[46]; S v Crimes Compensation Tribunal [1998] 1 VR 83; O'Connor v County Court [2014] VSC 295, [38]-[39]; Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [2013] VSC 614, [18].

[71] Tribunal Decision (n 2) [256]-[261].

[72] CB304, Respondent, 'VCAT Applicant's Submission, 26 June 2019, CB404-6 [587]-[595].

[74] Transcript of VCAT Proceedings, T 672 L 29-36 (18 March 2019).

[75] Tribunal Decision (n 2) [258]; Transcript of VCAT Proceedings, T 671 L 19-22 (18 March 2019).

[76] Transcript of VCAT Proceedings, T 673 L 44-5 (18 March 2019).

[77] Transcript of VCAT Proceedings, T 673 L 46-47, T 674 L 1-2 (18 March 2019).

[80] Transcript of Proceedings, T 243 L 16-20 (31 May 2021).

[81] CB246, Respondent, 'Particulars of Loss and Damage Claimed'.

[83] Transcript of Proceedings, T 110 L 11-17 (28 May 2021).