18 In simple terms it might be argued that this application is not about the cause of the defects but whether the defects are the builder's responsibility and trigger the insurance policy. In determining whether the defects are the result of defective work performed by the builder (as defined in the policy) it will, in my view, necessitate a consideration of the cause of the defect so that the builder's liability or otherwise can be determined.
19 In considering whether to allow this stay application, I respectfully agree with the principles enunciated by Deputy President McKenzie in Dowie - it must be just and convenient to do so. The difficulty with allowing this application would be that the Tribunal could very well determine the application for review in a way that would otherwise prejudice the architect's (and the other Respondents') interests. It seems to me that taking into account the provisions of s60 of the VCAT Act it is desirable that all matters be determined at the same time and it would not be just and convenient to do otherwise. The Respondents' interests will clearly be affected by the outcome, and they should have the benefit of any decision that is made. One might expect in such circumstances that they would welcome an opportunity to be heard so as to minimise any potential liability. I am reinforced in this conclusion by the withdrawal of their stay application by the owners and the indication from Mr Marzella of Counsel who appeared on behalf of the Sixteenth Respondent building surveyor that, if the stay application was granted, he anticipated his client would seek leave to appear at the hearing in order to protect his interests.
20 Further, s97 of the VCAT Act requires the Tribunal to act fairly and in accordance with the substantial merits of the case. It is clearly desirable that all issues in relation to determining whether the defects are attributable to defective building work performed by the builder be determined at the same time to avoid duplication of evidence and any possibility of inconsistent findings, or findings which may be to the detriment of one of the Fourteenth to Seventeenth Respondents if they are denied an opportunity of 'defending' their interests.
21 I do not consider the costs which might be incurred by the builder or the architect depending on the outcome of this application to be a relevant factor to take into account. I am satisfied for the reasons set out above that it is in the interests of all parties that this application not be granted, it being desirable that all issues be ventilated and considered at the same time.
22 The application for a stay of the proceedings will therefore be dismissed, and the proceeding set down for a further directions hearing at which time the Applicants' application for joinder will be heard. I will also reserve the question of costs of this application with liberty to apply.