Burton v Mizzi (Building and Property) [2024] VCAT 106

1. The respondent shall pay the applicant $39,877.68.
2. The parties' costs are reserved. Any application for costs by either party shall be made in writing by 29 March 2024.

1. Ms Burton claims damages from Mr Mizzi, who was the owner builder of the house that Ms Burton purchased in December 2016.
2. Relying on a report by Dale Jameison dated 3 November 2017, Ms Burton alleges that there are 24 defects in the house. Relying on a quote from Stardust Constructions dated 18 February 2020, in which that company individually costed the 24 items identified by Mr Jamieson, Ms Burton alleges that the cost of rectifying the defects would be $46,658.00. Ms Burton has not had the alleged defects rectified, and so has not spent that sum. Impliedly, she claims the up-to-date cost of rectifying the defects.[1] Stardust Constructions' quote was a bit over two years old when Ms Burton issued the VCAT proceeding.
3. In her Points of Claim Ms Burton alleged that she was entitled to the benefit of warranties in respect of the quality of the building work. Ms Burton referred to section 8 of the Domestic Building Contracts Act 1995 (Vic) in paragraph 34 of the Points of Claim. Mr Mizzi filed and served his Points of Defence on 19 November 2022, and in paragraph 5 of that document he pleaded that Ms Burton had purchased the house by auction. Mr Mizzi did not otherwise refer to the Domestic Building Contracts Act 1995 (Vic).
4. Mr Mizzi defends the claim, and in reliance on a report by Glenn Edwards, disputes many of the items of alleged defects. Mr Mizzi concedes that some of the items were defective. He asserts that $8,568.12 should be awarded to Ms Burton.
5. The Points of Claim and Points of Defence make it very clear that the only issues in dispute in this proceeding are the identification of defects, and the assessment of damages. That is, no issue was raised on the pleadings about misleading and deceptive conduct by Mr Mizzi as vendor of the property, misrepresentation in the marketing of the house or the like. Having confined the dispute to such narrow issues - whether defects existed and if so what was the cost of rectification - the parties created a situation in which neither of them personally could give any relevant evidence.

1. Both parties were self-represented,[2] and it is appropriate that I mention some procedural issues.

Liability under section 137C of the Building Act 1993 (Vic) is in issue

1. The warranties under section 8 of the Domestic Building Contracts Act 1995 (Vic) do not apply where the owner of the house purchases it from an owner builder_._ It is apparent that at a directions hearing held on 8 February 2023, after the Points of Defence had been filed and served, the presiding Member construed the Points of Defence as containing a denial that section 8 of the Domestic Building Contracts Act 1995 (Vic) could be relied on by Ms Burton, but drew the parties' attention to section 137C of the Building Act 1993 (Vic) which has a very similar effect to section 8. That is, sub-sections 137C(1)(a) - (c) make these warranties part of the contract of sale of the house: that all domestic building work was carried out in a proper and workmanlike manner; that all materials were good and suitable for their purpose, and were new; and that the building work was carried out in accordance with all laws and legal requirements including the Building Act 1993 (Vic) and the regulations. Section 137(2) gives Ms Burton, as a successor in title to Mr Mizzi, the right to take proceedings for breach of the warranties as if she were a party to the contract between the builder and the first purchaser.
2. The presiding Member specifically stated in the Order of 8 February 2023: "The Tribunal notes its reference today, in discussions with the parties, to section 137C of the Building Act 1993 (Vic)".
3. Mr Mizzi did not amend his Points of Defence. I am satisfied that the effect of the Order of 8 February 2023 was to remove any suggestion that Mr Mizzi asserted a defence that section 8 of the Domestic Building Contracts Act 1995 (Vic) could not be relied on by Ms Burton. Instead, Mr Mizzi conceded the effect of section 137C of the Building Act 1993 (Vic) and defended the claim "on the merits", by denying Ms Burton's list of defects and her costings, and suggesting his own.

The parties relied on experts' reports but did not call the experts to give evidence orally

1. Whilst the parties' pleadings limited the issues to a contest between their experts, Mr Jameison and Mr Edwards, neither party called their expert as a witness in the hearing. Both sides said they were content to have the case determined by the Tribunal considering the written reports of Mr Jameison and Mr Edwards, and the related quotes, and making a ruling on them.
2. The Tribunal is not bound by the rules of evidence[3] and is able to receive information which might not be admissible as evidence in a Court proceeding.[4] The Tribunal can give such information appropriate weight. The Tribunal is directed by its governing legislation to conduct each proceeding with as little formality and technicality, and with as much speed, as the requirements of the Act and the enabling enactment and a proper consideration of the matters before it permit.[5] The Tribunal must act fairly and according to the substantial merits of the case in all proceedings.[6]
3. There have been a number of cases in which the Courts have commented on these obligations of the Tribunal, and in one case it was said that VCAT cannot apply Rafferty's rules, and in another that VCAT cannot dispense palm tree justice. With these comments in mind I spent some time at the commencement of the hearing doublechecking whether the parties were content to have the case determined on the basis of their experts' reports without the experts giving evidence orally and being available for cross examination,[7] and making it clear that it was possible for the Tribunal to adjourn the hearing to enable them to call their experts to give evidence. I then gave the parties some time to engage in settlement negotiations, in my absence and on a without prejudice basis, before the hearing got underway. At the end of those discussions the parties advised that they had not reached a settlement and that they wanted a determination by the Tribunal. The parties elected to proceed on the basis of the written experts reports and quotes in the absence of the experts and the quoting contractors.
4. The parties attended a mediation on 8 February 2023. In a practical sense, communications between the parties in a mediation are confidential. Certainly I do not know what the parties discussed in the mediation and at the commencement of the hearing I told the parties several times that I did not want them to inadvertently tell me what had been said in the mediation. Further, when issuing the proceeding Ms Burton sent the Tribunal a Certificate of Conciliation issued by DBDRV, which revealed that the parties had been through some sort of private negotiation there as well. Based on my general knowledge of how mediations are conducted, I am confident that the parties would have discussed the issues in dispute between them on those two occasions; that they knew what the issues for determination were; and they had considered the costs that they were prepared to incur in taking the case to a hearing and had made an informed decision not to call their experts to the hearing. In the hearing, both parties said that they did not consider that they could afford to have their experts attend the hearing.
5. I acknowledge that on one view I could have refused to determine the proceeding as the parties desired, adjourned the hearing and ordered them to cause their experts to appear regardless of the expense and delay that this would have imposed upon them. It seemed to me that adopting that approach would have been commercially unacceptable to the parties. On the basis of the parties' informed consent and election, I proceed to determine the case on the basis of their experts' reports and quotes.

1. Ms Burton said that she had spent $554.50 on Ferraro Plumbing Solutions in January 2023, to repair leaking from the freestanding bath caused by a defective waste component. Ferraro pulled out the bath, replaced defective plumbing components, and reinstalled and re-caulked the bath. Mr Burton's son emailed the invoice and two photographs to the Tribunal on 30 January 2023. This expenditure supersedes item 18 of Stardust Constructions' quote for $3,570.00 in respect of this item.
2. Ms Burton's son asserted that prices had risen. This was not 'evidence' but I accept that prices have risen. Similarly, Mr Mizzi opined that the value of Ms Burton's house had increased since she bought it. I accept that real estate prices have risen, but that is not a 'defence' upon which Mr Mizzi can rely.
3. I mentioned above that paragraph C of the prayer for relief in Ms Burton's Points of Claim enables the quantum of the claim to be adjusted.
4. There are several bodies of law on this subject, which I discuss below.

1. Mr Jamieson's report dated 3 November 2017 is 40 pages in length and contains written descriptions and photographs. On pages 39 & 40 Mr Jamieson wrote that he had prepared the report in line with the requirements of the Tribunal's Practice Note PNVCAT2, and the effect of paragraphs 1, 2, 3, 4, 10 and 11 is to say that he carried out an informed, non-destructive visual inspection, using the Building Code, and Australian Standards and manufacturers' data sheets where specifically referred to, as a guide. On page 2, under the heading "Particulars of our inspection and report", Mr Jamieson said that the report is a list of defects,[8] and in other words that it does not list all aspects of the house but then refer to aspects which in his view are not defective.
2. On page 2, Mr Jamieson wrote that the dwelling was a single storey brick veneer house and garage founded on a slab.
3. Mr Edwards' report dated 17 November 2022 contains his CV, which includes that he is a qualified Carpenter and Joiner with over 43 years' experience in residential construction, and with extensive knowledge of building requirements, Building Codes and Standards. On page 4, he says that he inspected Ms Burton's house on 19 October 2022, in the presence of Ms Burton and Mr Mizzi, and that he received various documents including the quote by Stardust Constructions, the Victorian Building Authority's Guide to Standards and Tolerances 2015, and the pleadings. Relevant to items 14 and 17 of Mr Jamieson's list of defects - missing doorstops in wet areas and inadequate fixing of toilets to the floor - on page 5 Mr Edwards said he had been unable to carry out a destructive investigation of the wet areas to determine if the waterproofing at the doorways returns to the perimeter waterproofing of the rooms, and that he had been unable to carry out a destructive investigation of the toilets to determine how the pans had been fixed to the floor.
4. Mr Edwards concedes seven items of defects and has obtained a quote dated 18 November 2022 for their rectification from Ground Up Excavation and Construction. The quote costs seven individual defects in amounts excluding GST, and on addition of the 10% GST the quote totals $8,568.12. For some reason Ground Up Excavation and Construction chose to use a different sequence of item numbers than did Messrs Jamieson and Edwards, but it has been possible to show Ground Up's quote against the relevant defect. Where Mr Mizzi conceded the existence of a defect (by adopting Mr Edward's report) but Ground Up did not provide a quote, I can only proceed on the basis that Mr Mizzi concedes Stardust Constructions' quote and agrees to adopt that figure.
5. I accept Mr Edwards' status as an expert on the existence (or otherwise) of building defects. In relation to some items, Mr Edwards added an "editorial opinion" on conveyancing issues, and as he does not purport to be an expert on conveyancing and as the vagaries of auction contracts were not raised in the Points of Defence, I must disregard that gratuitous commentary.
6. I set out below a table containing Mr Jamieson's list of alleged defects, the quote by Stardust Constructions relating to each alleged defect, Mr Edwards' opinion in reply, the quote by Ground Up Excavations relied upon by Mr Mizzi, and my analysis. I assess Ms Burton's claim at $36,070.62 including GST. My assessment takes into account that the amount Ms Burton paid to Ferraro Plumbing overtakes the Stardust Constructions quote in relation to the defect that Ferraro Plumbing repaired.
7. As I have stated above, Stardust Constructions' quote was dated 18 February 2020 which precedes the commencement of the proceeding, and Ferraro Plumbing's invoice was issued nine months after the commencement of the proceeding and about a year before the hearing. Building costs have increased since those dates. Apart from paying $544.50 to Ferraro Plumbing, which crystallises the cost of rectifying that one item, Ms Burton has not had any defects repaired. If she obtained a new quote now, it would likely be for more. If she did so, Mr Mizzi would doubtless argue that Ms Burton should not recover the difference between the original quote and the up-to-date quote because, objectively, she had failed to mitigate her loss and damage by allowing the cost of building to increase with the effluxion of time.
8. Apart from Ms Burton disclosing her payment to Ferraro Plumbing, which had the effect of reducing her claim because that payment superseded Stardust Constructions' quote for $3,570.00 in respect of the bath, and Ms Burton including paragraph C in her prayer for relief, neither party put any arguments on the question of how the quantum of the claim might be adjusted.
9. Section 184(2)(b)(ii) of the Australian Consumer Law and Fair Trading Act 2012 (Vic) empowers the Tribunal to order the payment of a sum by way of damages, including damages in the nature of interest. Such an order might have been appropriate had Ms Burton spent money having the defects rectified. As stated though, she has only paid out $554.50 to date.
10. In Hungerfords v Walker[9] the High Court held that when a plaintiff/applicant loses money due to a breach of contract by the defendant/respondent, the loss of the use of that money is recoverable in an award of damages. Mason CJ and Wilson J said[10]

Judged from a commercial viewpoint, the plaintiff sustains an economic loss if [their] damages are not paid promptly, just as [they] sustain such a loss when [their] debt is not paid on the due date. The loss may arise in the form of the investment cost of being deprived of money which could have been invested at interest or used to reduce an existing indebtedness. Or the loss may arise in the form of the borrowing cost, i.e., interest payable on borrowed money or interest forgone because an existing investment is realised or reduced ... Opportunity cost, more so than incurred expense, is a plainly foreseeable loss because, according to common understanding, it represents the market price of obtaining money. [Emphasis added]

1. The effect of this passage was that Mason CJ and Wilson J were saying that Ms Burton could be awarded a sum to compensate her for the consequences of Mr Mizzi not paying for the rectification of the defects. This would not be an award based on an up to date rectification quote (which has not been put in evidence in this case as there is no such quote), nor on the basis of a quoting builder adding a 'margin' or 'contingencies' to their quote (which again is not in evidence). Nor would it be an award literally of interest.
2. Under principles of mitigation of damage, a plaintiff/applicant must take reasonable steps to minimise the effects of a breach of contract. One aspect of this is that a plaintiff/applicant must take all reasonable steps to minimise the loss flowing from the breach, and may not recover damages for any part of the loss that is due to their failure to take such steps. However, this principle does not prevent the adjustment of the quantum of Ms Burton's claim, because in this case it is not suggested that by not repairing the defects earlier, the defects themselves have become more serious and thus more expensive to rectify. It is only suggested, by Ms Burton's son, that because of inflation the cost of rectification would have increased.
3. I am satisfied that it is appropriate to add an amount over and above the $36,070.62 which I have assessed, applying the principle enunciated in Hungerfords v Walker. As no evidence was led on how that amount should be calculated, and as Ms Burton had the Starlight Constructions quote some years before commencing the proceeding, in assessing the Hungerfords damages I would take into account an interest rate of 5% per annum, from the date this proceeding was issued, 4 March 2022, to date. As it is only a matter of days until 4 March 2024, and as I am not literally applying interest, I consider it appropriate to round up that 'interest calculation' to cover 2 full years, and arrive at a figure of $3,807.06. $36,070.62 + $3,807.06 = $39,877.68.
4. I will reserve the parties' costs. The value of a self represented party's own time in preparing the case in the period before the hearing are not compensable as "costs". However, Ms Burton had engaged legal practitioners for a period, and I expect both parties to have paid their experts, and possibly the quoting contractors, for their efforts. Ms Burton has paid an issuing fee on the proceeding. These types of expenses fall within the meaning of "costs". I draw the parties' attention to section 109 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), which provides that the Tribunal may order a party to pay another party's costs. Similarly, I draw their attention to sections 112 to 115 which set out how a party's formal offer of settlement can affect how the Tribunal may award costs.

Quote by Stardust Constructions 10 February 2020. Figures include GST

Quote by Ground Up Excavations 18 November 2022. Figures in the quote are stated as excluding GST but in this column they are shown as including GST

No control joint between the driveway and the house

Cut a control joint and repair damaged concrete $1,800.00

Defect denied "as a result of insufficient evidence" (page 24)

Mr Edwards' commentary and speculation on conveyancing is not within his area of expertise and is irrelevant.

Mr Edwards acknowledges that the roof tiles are chipped.

Poor quality touch ups of paint around windows and doors, and masking tape left on some surfaces in the property

Areas of over painting, and also of a failure to paint, are conceded . Claims that there are gaps between some internal fixing materials are denied on the bases that they are less than the 1 and 2mm referred to in the Guide to Standards and Tolerances and because of the age of the house. These are opinions which Mr Edwards is entitled to express as they are within his expertise.

Mr Edwards' commentary and speculation on conveyancing, made in the context of gaps in plaster which exceed the 1mm referred to in the Guide to Standards and Tolerances, is not within his area of expertise and is irrelevant.

' Price based on minimum call out fee' and with scaffolding included. $800.00 ex GST / $880.00 inc GST

I cannot accept the proposition that all of the necessary work to repair the defects in the painting could be done for a mere call out fee. Ground Up does not make an allowance for preparation, supply of groundcovers, or clean up.

Of the two quotes I must accept that of Stardust Constructions.

Over-flashing which is required in the portico had not been installed [item 11 also concerns the portico]

The omission of pressure over-flashings to the front portico soaker flashings is conceded to be a defect , but the rest of the roof flashings to the front portico are not defective

In various locations, flashing fell towards the house rather than away from the house

The fall towards the metal fascia on the house is 0.5°, and there is no evidence of rust or corrosion to the flashing as a result of the gradient and it was not observed to be holding water. Mr Edwards expresses this point in the negative - "There is insufficient evidence that the garage boundary wall flashing is not functioning properly" Defect denied

The existence of this defect is conceded (pages 13 and 24)

Mr Edwards' commentary and speculation on conveyancing is not within his area of expertise and is irrelevant.

Ground Up's quote is based on the minimum call out fee for a cleaner, and includes the cost of a neutral wash. I consider that removing smears of mortar requires more, and that it would be overly optimistic to think that a cleaner could do the whole task for just the callout fee.

No articulation joints between some windows and doors, and brick walls

Replace for windows and to stacker doors and create articulation joints $10,280.00

Valley irons damaged when roof tiles were installed

Mr Edwards says there is one small area in a valley in the right side of the portico which has a "non-corroded scuff", which is consistent with having been caused when the tiles were installed, but which has not caused any problems. Defect denied.

Page 17 of Mr Jamieson's report contains photograph of three areas in which valley irons have been damaged. This contradicts Mr Edwards' assertion that there was only one affected area.

I prefer Mr Jamieson's photographic evidence to Mr Edwards' description.

As Ground Up did not quote this item I take the quantum to be agreed at $2,675.00.

Powdercoat finish to a doorframe has been damaged, and an attempted repair on site has not succeeded

Mr Edwards describes this as a "scuff" as distinct from damage, and notes that Ms Burton has owned the house since 2016.

I consider Mr Edward's evidence to be the more logical. The photographs are consistent with the door frame being scuffed by one or more people walking through the door.

I am not persuaded that Ms Burton has proven that the section 137C warranty was beached by Mr Mizzi.

Mr Edwards says this allegation is very imprecise, with not even the location of the cracks having been identified. He concludes that there is no evidence of defective work. Defect denied.

I am not persuaded that Ms Burton has proven that the section 137C warranty was beached by Mr Mizzi.

In the portico, there are some holes in the roof which are large enough to allow birds to get into the roof space

Mr Edwards says there is a "small gap" between the ends of the portico eave soffits and the main roof, but that the objective of the relevant building code is to safeguard occupants from infection; and that there is no evidence that anyone has become infected as a direct result of birds entering the roof space

There should not be a gap. Therefore, this is a defect. Mr Edwards' advocacy exceeds his role and is to be disregarded.

Ground Up has not costed the rectification of this item, and I take the Stardust Constructions' quote to be agreed.

11A* [* Due to a typographical error by Mr Jamieson, there are two items numbered 11]

The bottom of the sliding laundry door has been damaged by nails protruding from the adjacent room

Mr Edwards says the nail damage has been repaired but that the necessary remedial painting has not been performed, which amounts to a defect

Necessary painting is conceded to have been omitted.

Ground Up has not costed the rectification of this item, and I take the Stardust Constructions' quote to be agreed.

In the bathroom, the vanity mixer tap is loose and requires adjustment

Defect denied, as Mr Edwards says the mixer is not loose

As a matter of logic I find that if the mixer is loose, it is more likely than not to have become so through usage over time and that Ms Burton has not proven that a s137C warranty has been breached.

The front door is out of plumb by 4mm over a length of 2m

Mr Edwards shows to my satisfaction that there is no defect here, within the Guide to Standards and Tolerances

There is no waterstop where the bathroom floor meets the passage

On pages 18 and 19 of his report Mr Edwards says he could only comment properly in respect of this alleged defect by carrying out destructive work, which he has not done.

Mr Edwards, and this Mr Mizzi, has not denied this item. I accept Mr Jamieson's opinion in those circumstances

In the ensuite and the bathroom, the showers have been completed without a hob, so that the shower does not finish at least 5mm above the floor thereby necessitating installation of a waterstop

On page 19, at paragraph 16.3, Mr Edwards conceded that water stop angles had not been installed at the perimeter of the showers. He then asserts that because the waterproofing is working, there is no defect. Mr Edwards does not say how he reached the conclusion that the waterproofing is working.

On page 24 Mr Edwards appears to say that the defect is denied "as a result of insufficient evidence" of its cause (page 24)

Mr Edwards conceded that water stop angles had not been installed at the perimeter of the showers. His other comments are mere advocacy.

Both showers, in the ensuite and the bathroom, are 'walk in' showers as distinct from having a shower base, and neither of them has an adequate fall of 1mm per 100mm

Mr Edwards uses a different device to measure the fall, and says it is between a minimum of 11mm and a maximum of 28mm in 1 metre, all of which are above the required standard of 10mm in 1 metre

I accept Mr Edwards' as the more accurate measure and so I dismiss this item.

None of the toilets have been properly secured to the floor. They are held down with silicone.

Mr Edwards says he could only comment properly in respect of this alleged defect by carrying out destructive work, which he has not done.

Defect denied "as a result of insufficient evidence" of its cause (page 24)

Mr Jamieson positively stated that he had observed that the toilet pans were not screwed to the floor.

I accept Mr Jamieson's positive evidence in preference to Mr Edwards' explanation of why he could not give evidence.

The rear of the bath has not been sealed with a flexible sealant.

Replace the bath with a 'back to wall' freestanding bath, $3,570.00

NOTE though: Ms Burton's hiring of Ferraro Plumbing to repair the leak in the bath at a cost of $544.50 supersedes Stardust Constructions' quote

Mr Edwards said that when he inspected the bath, the silicone around it had been cut and that Ms Burton said that her plumber had done that. However on page 4 of his report Mr Edwards said that Ms Burton had taken no part in his inspection.

On balance I am not satisfied that Ms Burton made any concession or admission to Mr Edwards.

I am satisfied that Ms Burton acted appropriately when engaging Ferraro Plumbing to repair the leak in the bath. Why would she engage a plumber if it were unnecessary? I find that Ferraro's charge of $544.50 dictates the assessment of the quantum of this item.

In the ensuite bathroom, the grout between the tiles in the shower is rough and thus not applied properly.

Defect denied "as a result of insufficient evidence" of its cause (page 24)

Mr Edwards' comment on this item is simply quibbling. Mr Mizzi was the owner builder of the house. Mr Jamieson describes, and then displays in photographs, defective grout. I find that there is sufficient evidence that Mr Mizzi is responsible for this defective grout.

In the ensuite bathroom, some tiles are too close together, and the grout lines are inconsistent

Replace tiles at shower screens. Remove and replace all floor tiles in bathroom, ensuite and laundry, $6,075.00

Defect denied "as a result of insufficient evidence" of its cause (page 24)

Similarly to item 19, in the face of photographs of the shower showing that grout lines are not consistent, Mr Edwards quibbles that he can't discern the location. I reject Mr Edwards' evidence in this respect.

Ground Up did not quote in respect of this item (which was quoted by Stardust Constructions to include items 14, 15, 16, 19 and 20).

The pedestrian access doorframe, between the garage and the house,has not been installed with full perimeter door seals

Before me are the two quotes, which objectively do not say how the respective figures have been calculated even though there are more words on Ground Up's quote.

The supply and fitting of a door seal is needed. This is a straight forward item of work, which could be performed by a contractor who was on site attending to other items.

The tops and bottoms of all external doors and all internal wet areas have not been sealed

One of the bedroom doors rubs on the floor carpet, showing that it is too big and needs to be cut down

Defect denied on the basis that it was not raised until years after the purchase of the house. The implication is that this is a maintenance item to be borne by Ms Burton as the homeowner

This is not a maintenance item. It is a defect which Ms Burton might have attended to earlier, but that is not the same thing. Had Ms Burton been claiming the cost of replacing the carpet, she might have been faced with an argument that she had not mitigated her damage. But she is not making such a claim.

The timber floors are out of level, and are not within the acceptable allowance of 4mm over 2 m.

Take up the flooring, grind the concrete slab, and relay the flooring $5,620.00

Stardust Constructions does not state how it assessed its cost of $5,620.00. Ground Up does explain how it costed the work at $3,905.00 inc GST, including the use of a self levelling screed.

In these circumstances I must prefer Ground Up's quote.

[1] In paragraphs A, B and C of the prayer for relief in her Points of Claim dated 3 March 2022, Ms Burton claimed $46,658.00, interest, and "Any other order the Tribunal deems fit". As it is common knowledge that building costs increase over time - even putting aside the well-publicised inflation experienced in Australia since the Covid 19 pandemic - I consider that paragraph C put Mr Mizzi on notice that Ms Burton would update the quantum of her claim. In addition, had Ms Burton spent the $46,658.00 in rectifying the defects, the claim for interest on that sum would have increased the claim above $46,658.00. Mr Mizzi was on notice from the outset that more than $46,658.00 was claimed.

[2] Ms Burton's legal practitioner wrote a letter of demand to Mr Mizzi, and clearly played a significant role in the preparation of her Points of Claim, but did not act for her in the proceeding.

[3] Section 98(1)(b) of the Victorian Civil and Administrative Act 1998 (Vic).

[4] Section 98(1)(c) of the Victorian Civil and Administrative Act 1998 (Vic).

[5] Section 98(1)(d) of the Victorian Civil and Administrative Act 1998 (Vic), which says "The Tribunal must ..."

[6] Section 97 of the Victorian Civil and Administrative Act 1998 (Vic).

[7] Section 102(1)(a) & (b) of the Victorian Civil and Administrative Act 1998 (Vic) requires the Tribunal to give the parties a "reasonable opportunity" to call or give evidence and to examine, cross-examine or re-examine witnesses. It is up to the parties to decide whether to take the opportunities. I did not refuse to allow the parties to cross-examine their opponent's experts; the parties waived their right to do so.

1. [8] Mr Jamieson wrote that the report identifies items that in his judgment do not reach an acceptable standard of quality, level of building practice, or meet requirements of relevant Australian Standards and the Guide To Standards and Tolerances published by the Building Commission

[9] [1989] HCA 8; (1989) 171 CLR 125.

[10] [1989] HCA 8; (1989) 171 CLR 125 at 143.