RESPONDENT Brent Williams (relevant building surveyor)

INTERESTED PARTY Deanne Bogusz (subject landowner)

RELEVANT MUNICIPALITY Port Phillip City Council

ADJOINING PROPERTY 110 Gladstone Street, Southbank

APPEALS BOARD An application for costs of and incidental to the proceeding pursuant to cl 16(3) of Sch 3 to the Act.

BEFORE Members Maynard (Chairperson), Irwin and Mulholland.

CITATION Butterfield v Williams [2025] VBAB 40

Having considered all the submissions and information placed before it, the Building Appeals Board (the BAB) determines that:

1. Pursuant to sch 3, cl 16(2) to the Building Act 1993, in finding it just to do so, the Respondent must pay the Applicant's costs of the proceeding, fixed in the sum of $6,714.70 by 30 April 2025.

_______________________ ________________________

For the Respondent Ms R Hull, senior technical assistant

1. On 4 September 2024, the Building Appeals Board (the BAB) determined the appeal comprising the proceeding. The orders made by the BAB on that day gave the parties liberty to apply for costs. Ms Sandra Butterfield (the Applicant) now seeks an order that their costs of and associated with this proceeding be paid by Respondent and/or Interested Party.
2. The Applicant is the owner of the property at 110 Gladstone Street, Southbank (the Adjoining Property).
3. Ms Deanne Bogusz (the Owner) is the owner of the property at 112 Gladstone Street, Southbank (the Subject Land) and is the Interested Party in these proceedings. She proposed conducting building work being additions and alterations to the house on the Subject Land.
4. The houses on the Subject Land and the Adjoining property share a party wall.
5. On 7 December 2023, Mr Brent Williams, the relevant building surveyor (RBS) and the Respondent in this proceeding**,** made a determination that protection work was required.
6. On or after 25 January 2024, the Owner served a protection work notice (form 7) on the Applicant. This notice gave details of the work that would be carried out on the Subject Land, and stated there would be temporary propping of the party wall, but did not give details of any other work that would properly be characterised as protection work. In addition, it stated that a dilapidation report would be prepared, and a contract of insurance put in place in accordance with s 93 of the Building Act 1993 (the Act).
7. On 25 February the Applicant responded to the protection work notice (form 8) requesting plans, specifications and details of the proposed protection work. On 13 March the Interested Party wrote to the Applicant giving a lot of detail about the building work in general, with very little further detail about the protection works; essentially that there is a drainage plan and that there would be temporary propping of the party wall.
8. The RBS wrote to the Interested Party on 27 March 2024 advising that the Protection Work Notice is deficient.
9. The Applicant received a report from Buildspect, Building Consultants, on 11 April regarding engineering issues and questions to ask regarding the protection works.
10. On 12 April the Applicant writes to the Interested Party copying in the RBS stating that the information supplied in relation to protection work is not adequate and that she requires:

engineering detail for lateral support of adjoining structures during demolition and protection of footings during excavation works, civil drainage detail and a dilapidation survey of 110 Gladstone Street

In addition, she requested any plans, drawings or specifications that were not included with the protection works notice.

1. On 18 June the Interested Party received a report from Ultimate Consulting Engineers. It stated:

The proposed works outlined in the engineering plans 0466A REV B Dated 12/06/2024 and architectural plans CD 002 B Dated August 2023 will not undermine the integrity of the party wall. It must be noted that two beams will be supported onto the existing party wall which will involve removing a few bricks only on 112 Gladstone Street, Southbank side of the party wall. The beams will connect to the party wall as per the below details, which can also be found in the engineering plans.

Regarding the pad footings in the rear which run along the boundary line they pose a very minor risk of causing any damage to 110 Gladstone Street, Southbank as they are not in close proximity to the existing dwelling or it's footing structure. As per standard practice the builder must take all pre-cautions in maintaining the stability of the structure during construction and if plans are followed and carried out correctly the risk of damage to 110 Gladstone Street, Southbank is very low. It must be noted that all construction poses some form of risk but in this case the risk is deemed as very low.

1. On 27 June 2024 the Interested Party wrote to the Applicant enclosing drainage plans, engineering drawings and the above report (although the Applicant says she did not receive this report until it was sent to her with the form 9 determination). Apart from the statement that "the excavation of the 3 x pad footings along the boundary is designed not to undermine the neighbour's backyard", there was no other reference to protection works in the documents.
2. On 12 July 2024, the RBS made a determination under s 87 of the Act that the owner's proposal for protection work was appropriate (Form 9 Determination).
3. On 26 July the Applicant appealed to the BAB under s 141(a) of the Act (the Appeal) in relation to the appropriateness of the proposed protection work.
4. After the Appeal was lodged the Applicant supplied the RBS and the Applicant with a report from Buildspect Building Consultants dated 12 April 2024 upon which she relied to draft her letter of 12 April. In addition, the Applicant provided a report from Engineering Elements dated 19 August 2024, which reviewed all existing documentation and was of the view that the protection works were limited to general notes to the builder/contractor maintain stability of the structure, but with no detail as to how this should be done. The report then made a number of detailed recommendations as to how the protection works should be carried out.
5. There were three outstanding issues when the Appeal was heard by the BAB on 4 September 2024. The BAB made findings which supported the Applicant's position on those three items. The Form 9 determination made by the RBS under section 87 of the Act as to the appropriateness of protection work was set aside and remitted back to the RBS to reconsider in accordance with the BAB's findings.

1. The BAB has jurisdiction to order that one party pay another party's costs of a BAB proceeding. Clause 16(2) of sch 3 to the Building Act 1993 (the Act) states:

The determination may include any order as to costs that the Building Appeals Board, on the application of a party to the proceeding, considers is just.

Unless the Building Appeals Board otherwise determines, a party to a proceeding before the Board must bear his, her or its own costs.

1. In Stewart v Building Practitioners Board & Anor,[1] Gillard J considered the operation of cl 17 of sch 3 to the Act. His Honour stated:

...It is clear from clause 17 that the Board does have power to make an order for costs. It establishes a general rule, namely, that there should be no order as to costs. But, it is clear that the Board may, in appropriate circumstances, refuse to follow the general rule and make an order for costs. One looks in vain to find any criterion to guide the Board when application is made to override the general rule and order costs.

However, in my opinion, the presence of the general rule requires that circumstances must be established to override the general rule, and that means something more than being a successful party.[2]

1. Therefore, there is no presumption that costs will be awarded to a successful party in a proceeding before the BAB.
2. Accordingly, we approach the question of costs guided by the principle that there must be circumstances which override the general rule in proceedings before the BAB; namely, that the parties must bear their own costs, before it will consider making an order for costs.
3. This approach is consistent with the opinion of Bell J in Martin v Fasham Johnson Pty Ltd[3], in discussing the costs discretion of the Victorian Civil and Administrative Tribunal (another 'bear own costs' jurisdiction). In that case, his Honour stated that:

...The discretion must be exercised judicially, which means that the Tribunal must act fairly, impartially and by reference to relevant considerations and not arbitrarily, capriciously or by reference to irrelevant considerations and not in a manner that frustrates the legislative intent.

The Tribunal is a creature of statute and, on the question of costs, it commences from a different starting point. Usually parties must bear their own costs, which no doubt reflects the general object of the Act. That object ... is to promote access to justice generally and to minimise the overall level of costs in tribunal proceedings as far as practicable.[4]

1. Although cl 16(2) of sch 3 to the Act does not give any guidance as to what circumstances an order for costs is considered just, the mere fact that the Applicant was successful in its Application does not of itself justify a costs order in its favour. There must be circumstances that justify overriding the general rule that the parties bear their own costs.

a) The RBS failed to fulfil his responsibilities under the Act and exercise his independent judgment when he assessed that proposed protection work was adequate and made the Form 9 Determination. > > b) The Applicant was vindicated by the Board's determination and should not be out of pocket for asserting her legal rights. > > c) The Applicant was required to employ an engineer to show that the Form 9 Determination was deficient. > > d) The issues raised by the Applicant in relation to the protection work were not resolved prior to the Appeal which required the Applicant to complete the appeal process. > > e) If documents relied on by the RBS had been provided earlier, the Applicant could have had the documents reviewed by an engineer and could have potentially avoided the need for the Appeal to be heard. > > f) The Applicant seeks legal costs of $22,431.85, engineering fees of $1,285.53, application fee $376.24 and title and other search fees $196.93; the combined total being $24,290.55. The Applicant has supplied copies of invoices in support of her claim.

SUBMISSIONS OF THE RELEVANT BUILDING SURVEYOR (RBS) (in summary)

a) The fact that the Applicant was successful does not of itself justify an order for costs. > > b) He relied on a structural engineer's advice in issuing his form 9 determination. > > c) He was not required to list the documents he relied on in forming his determination as that is not a requirement of the prescribed form in Schedule 4 to the Regulations. > > d) That the Owner was seeking an expeditious hearing, had no effect on the protection work notice process.

a) The Owner detailed some of the frustration she had communicating with the Applicant and progressing her time-sensitive building work.

b) The Owner does not consider she can be held responsible for the actions of the RBS in carrying out his professional duties.

1. While not finding that the RBS failed to exercise his professional judgement, we do find that the RBS failed to recognise the deficiencies in the original form 7 protection work notice and subsequent information supplied by the Interested Party which did not describe in sufficient detail how the Applicant's property would be protected. Consequently, the RBS should not have issued a form 9 determination.
2. Prior to the form 9 determination being issued, the Applicant asked valid questions and requested further detail about how her property would be protected. The RBS was on notice of the Applicant's concerns before he issued the form 9 determination.
3. Although the Applicant clearly raised her concerns with the Interested Party and the RBS, they remained unresolved, requiring the Applicant to proceed with the Appeal to the BAB, thereby incurring costs.
4. The RBS submits that he relied on the structural engineer's advice in issuing the form 9 determination. That advice is noted in paragraph 11 above. The advice stated there was minor or low risk to the Applicant's property and that the builder would take all precautions to maintain the stability of the structure.
5. We find that the engineering advice did not provide enough detail in relation to the protection works and should not, along with the other information supplied, have formed sufficient basis for a form 9 determination.
6. In addition, we find that if the RBS had expeditiously addressed the Applicant's concerns, then the Applicant need not have appealed the Form 9 determination and most of the Applicant's costs and expenses could have been avoided.
7. In addition, a further opportunity arose to resolve the Applicant's concerns after the Applicant supplied the Engineering Elements Report dated 19 August 2024.
8. We find that circumstances exist which override the general rule that costs do not ordinarily follow the event. The Applicant clearly and consistently raised her concerns about the form 7 protection works notice. The RBS had a number of opportunities to address these concerns but failed to do so. His defence of the Applicant's appeal had no chance of success.
9. Considering the above, any costs order must be against the RBS as it was his decision which was appealed. We accept the Owner's position that she is not responsible for the actions of the Respondent and is not a practitioner or expert in the field. We, therefore, will not make a costs order against the Owner.

1. We find it just to allow in full the engineering fees of $1,285.53, application fee $376.24 and title and other search fees $196.93; being a total of $1,858.70. These costs were unavoidably incurred by the Applicant.
2. With regard to legal costs, it is not usual practice to award the full costs incurred (indemnity costs). In K.S.J.A.D Nominees Pty Ltd v Goubran & Ors,[5] the BAB observed:

There is no scale of costs applicable to proceedings before the Board. Determining the appropriate quantum of costs is at the discretion of the Board, which will consider what is just in the circumstances. In rare cases, full indemnity costs might be ordered. However, there would need to be some egregious or contumelious conduct to warrant such an order...[6]

1. While we have found that costs are justified, the conduct of the Respondent is not such that an order for indemnity costs is warranted. Nor is it appropriate to order the Respondent to pay the Applicants' legal costs based on the County Court scale. This is a relatively minor matter more aligned with the Magistrates' Court scale of costs.
2. In all of these circumstances, we find that it is fair and reasonable to order the Respondent to pay solicitor's costs of $835 for preparation of the notice of appeal, $2,378 for general preparation and $1,643 for attendance at the hearing, being a total of $4,856.
3. Therefore, we award a total of $6,714.70.

[1] [2001] VSC 349.

[3] [2007] VSC 54.