APPLICANT Cambodian Buddhist Association of Victoria Inc. (Subject Land owner)

RESPONDENT Peter Argyriou (relevant building surveyor)

RELEVANT MUNICIPALITY Greater Dandenong City Council

SUBJECT LAND 159-171 Clarke Road, Springvale South

BEFORE Members L English (panel chair) and H van Ravenstein

CITATION Cambodian Buddhist Association of Victoria Inc. v Argyriou [2025] VBAB 48

Having considered all the submissions and information placed before it, pursuant to this tribunal's incidental powers, the proceeding is dismissed for want of jurisdiction.

_______________________ ________________________

For the Applicant Mr L Hong, representative of Applicant

1. On 29 June 2013, Peter Argyriou (Respondent) provided the Cambodian Buddhist Association of Victoria Inc (Applicant) with a 'fee proposal for consulting Building Surveying Services' (Fee Proposal) in relation to (then) proposed building work (Building Work) at 159-171 Clarke Road, Springvale South (Subject Land).
2. The Fee Proposal set out a 'scope' of work:

Conduct a preliminary assessment of the proposal and provide regulatory advice in respect to the Building Act 1993 (Act), current Building Regulations and Building Code of Australia (BCA) with reference to relevant Australian Standards.

Suggest Performance Assessments and/or Fire Engineering analysis (if required) for the project.

Attend any necessary pre-design meeting and/or site meeting as required by the stakeholders (Fee proposal allows for one [1] meeting).

Issue of Building Permit (single stage issue only).

Carry out mandatory building inspections (Fee proposal allows for six [6] inspections).

Issue of Occupancy Permit (included with inspections).

1. The Fee Proposal set out a total amount payable (including 'Government Permit Levy' of $2,652.95) of $11,426.95.
2. On 28 November 2014, the Applicant paid the balance of the amount payable under the Fee Proposal to the Respondent.
3. On 11 February 2015, the Respondent issued building permit number BS-U 25965/20150006/0 (Permit) and, thereafter, the Applicant engaged Dura Constructions (Builder) to carry out the Building Work on the Subject Land.
4. However, on 1 February 2019, the Builder wrote to the Respondent (relevantly):

During the course of construction, the Superintendent (under direction) removed 'parts of the scope of works from Dura's contract, as is broadly summarized below. Dura accordingly proceeded with construction for all elements under its adjusted contract scope, resulting in the completion of all contract works (in full) in August 2018.

The key parts of the scope of works that were removed from Dura's contact, which we understand are to be undertaken by others include;

a) All balustrades and handrails throughout

b) All external non-structural paving and landscaping

c) Toilet upgrades to the existing toilet facility as was a requirement of the building permit

d) The supply & installation of all door locks and associated furniture.

As Dura's contract scope of work has concluded, but given the above works were removed from our contract scope of work, Dura are unable to apply for an Occupancy Permit to bring closure to its practitioner's registration liability...

Having spoken with the VBA on this outcome, they have advised that a "Change of Builder in Building Permit Form" is required to be lodged with them to facilitate the process, but as this form must only be lodged by the RBS, we request that you populate this form (refer the below link) and lodge it back to the VBA.

https: //www.vba.vic.gov.au/building/building-permit-levy/suspension-of-building-permit

1. Despite the content of the above letter, the Applicant claims that the 'project' was completed in 2017.
2. On 11 February 2018,[1] the Permit lapsed.
3. On 30 January 2024, the Respondent met on site with representatives of the Applicant and noted a number of non-compliances
4. On 31 January 2024, the Applicant's representative emailed the Respondent:

As discussed on site, we look forward to receiving the checklist from your end.

- Accessible Toilet: To be re-designed as follows:

• Removal of shower
• Automated sliding door, relocation of signage
• Revised ambulant toilet layout

We would make changes accordingly after receiving your checklist to support the process of Occupancy Permit.

1. On 2 February 2024, the Applicant's representative sent another email:

If you could please let us know approximately when we might receive the revised checklist, that would be great.

1. On 20 February 2024, the Applicant's representative sent another email:

I'm writing to follow up on the revised checklist after our site meeting last month.

Could you please let us know when we could receive the checklist. Thank you.

1. On 29 April 2024, the Applicant's representative sent another email:

We have been trying to contact you over the past few months with no success.

Could you please get back to us on the checklist as discussed or respond to this email / call our office number.

1. On 20 June 2024, the Applicant appealed to the Building Appeals Board (BAB), under s 138(1)(a) of the Building Act 1993 (Act) for a review of the Respondent's 'refusal or deemed refusal' (Appeal) to issue an occupancy permit for the Building Work.
2. On 5 July 2024, the BAB held a directions hearing and gave directions and made orders, including:

(a) advise the Board and the Applicant in writing whether he does not have jurisdiction to issue an occupancy permit by reason of the building permit having expired; and

(b) if the Respondent does not have jurisdiction to issue an occupancy permit, advise the Board and the Applicant in writing as to what is action required to enliven his jurisdiction to issue an occupancy permit; and

(c) advise the Applicant in writing as to what, if any, outstanding items of work are required for him to be satisfied that the building or part of the building to which this proceeding relates is suitable for occupation.

1. The proceeding is listed for an administrative mention on 2 August 2024, by which date the parties must advise the Registrar in writing as to the status of the proceeding and their recommendations for the further conduct of the proceeding.

1. Some time between 5 July 2024 and 19 July 2024, the Respondent visited the Subject Land with a representative of the Applicant and inspected the Building Work.
2. On 19 July 2024, the Respondent wrote to the BAB and the Applicant (relevantly, with added emphasis):

(a) ... the Building Permit ... expired on February 11, 2018. Upon recently visiting the site, with the applicants, there were relatively minor design and building works items identified to be addressed in order to proceed with the issuance of the Occupancy Permit...

(b) ... since there were relatively minor design and building works items identified, the respondent may enliven the issuance of a supplemental Building Permit to capture the minor design and building works matters, coupled with issuance of the Occupancy Permit once satisfactorily completed.

(c) I spoke with Ms. Jasmine Mai of Foursight Architect earlier today.

I advised her that I shall be providing, in writing, outstanding items by no later than close of business on Monday, July 22, 2024. In summary, items will include, but not limited to, the following:-

1. A Building Permit application form [Form 1],
2. A summary of design items to address,
3. A summary of building work matter to address,
4. A summary of documents, statements, certificates for the Occupancy Permit issuance,...

1. On 21 July 2024, the Respondent emailed the Applicant's representative:

Further to item 2 (c) of the BAB directions and order, please find attach the following:-

1. A report of items to be addressed (part thereof - refer to item 1.3)
2. A Building Permit application form [Form 1]

Please refer to item 1.3 on page 2 of the report. Please forward remaining information which was presented to me on a phone at the inspection.

Copious information/documents need to be reviewed; thus I will require further time in order to report.

1. On 3 August 2024, the Applicant wrote to the BAB requesting an 'extension of time' for the administrative mention.
2. On 6 August 2024, the Respondent emailed the BAB and the Applicant (relevantly):

I have spoken with the Jasmine Mai at some length on this matter.

I can confirm the applicant (and representatives) have provided direction and supplied information pertaining to the project recently.

I do not object to the applicant's requests to extend time to November 8th, 2024 to comply with BAB directions and orders in lieu of August 2nd, 2024.

1. On 19 August 2024, the BAB gave directions and made orders listing the Appeal for a further administrative mention on 4 November 2024.
2. On 17 September 2024, the Applicant's representative emailed the Respondent:

Further to the checklist provided on 21st July 2024, we have taken actions to address the items requested.

Please find attached our following submission for the documents required on the Occupancy Checklist provided on 21st July 2024 for your review.

1. Building Permit Application
2. As - Built Drawings of the additional works as requested
3. Land Title Copy
4. Photo Report - in response to Occupancy Checklist

Please confirm when you receive this email and let us know if you require any further documents.

Please also provide us with a timeline of when the Occupancy Permit would be issued.,

thereby providing the Respondent with a signed building permit application form.

1. On 14 October 2024, the Applicant's representative again emailed the Respondent:

Further to our emails on 17 September 2024, can you please advise us on the timeline for when we can expect to receive the Occupancy Permit?

Please note that we are required to receive the Occupancy Permit by 04 November 2024. Alternatively, we will proceed with further administration as per BAB directions and Order.

1. On 17 October 2024, the Applicant's representative again emailed the Respondent:

I tried to contact you and left a message on your mobile this morning. Could you please return my call and update me on the status of the Occupancy Permit for the property mentioned above?

1. On 18 October 2024, the Applicant's representative again emailed the Respondent:

I tried to contact you and left a message on your mobile this morning again. Could you please return my call and update me on the status of the Occupancy Permit for the property mentioned above?

Please note that we are required to receive the Occupancy Permit by 04 November 2024. Alternatively, we will proceed with further administration as per BAB directions and Order.

1. On 22 October 2024, the Applicant's representative again emailed the Respondent:

I attempted to reach you earlier today and left a message on your mobile. When you have a moment, could you please return my call? I would appreciate an update on the status of the Occupancy Permit for the property mentioned above.

1. On 28 October 2024, the Applicant's representative again emailed the Respondent:

I tried to contact you and left a message on your mobile this morning again. Could you please return my call and update me on the status of the Occupancy Permit for the property mentioned above?

1. On 1 November 2024, the Applicant's representative again emailed the Respondent:

I tried to contact you and left a message on your mobile this morning again. Could you please return my call and update me on the status of the Occupancy Permit for the property mentioned above?

Please note that we are required to receive the Occupancy Permit by 04 November 2024. Alternatively, we will proceed with further administration as per BAB directions and Order.

1. On 1 November 2024, the Respondent replied:

Please excuse the delay, as I have succombed [sic] to personal/ medical matters over the past months.

In my time of duress, I have attempted to up with important dates and realised the scheduled VBA (BAB) on Monday, November 4th, 2024 hearing. This is administrative mention, in order words, an update for the Board. I am happy for the hearing to proceed or alternatively, you may wish to request a further extension. Expiditing [sic] an Occupancy Permit on this date maybe somewhat ambitious, but it shall not take too long.

To keep you informed, please find attached confirmation of the application being lodged with the VBA, which is pending payment.

In order to proceed to Building Permit issue, I require the following:-...

1. Thereafter, the Respondent set out a number of things required for the issue of a further building permit, including alterations/edits to the building permit application form and the working drawings, and:

A copy of a letter of agreement (and acceptance) between JRT Builders Pty Ltd (John Troiano) and Cambodian Buddhist Association of Victoria Inc. for the proposed work.

Alternatively, submit relevant extracts from the contract agreement.

Payment of permit fees, levies, administrative, other services to be paid prior to permit issue. I shall forward an invoice very shortly.

1. The 'confirmation' of the application for a building permit having been 'lodged' with the Victorian Building Authority indicates that it was lodged on 1 November 2024.
2. It would appear that the Applicant's representative and the Respondent spoke on the telephone. Following this conversation, on 3 November 2024, the Applicant's representative sent a further email to the Respondent:

Following up on our phone conversation from Friday, November 1, 2024, we are still awaiting the Occupancy Permit at your earliest convenience, as this matter has extended significantly.

As outlined in your previous email, I have revised the building permit application (Form 1) along with the necessary working drawings. Please find below a cost breakdown provided by JRT for the scope of works, noting that the additional work required to complete the Building Permit is approximately $30,000.00. Therefore, no formal contract or agreement has been executed between the contractor and the client.

In the meantime, please arrange for the invoice for permit fees as well as any applicable your consultancy fees to be forwarded to us. We kindly request that the permit levies be processed without further delay.

1. On 29 November 2024, the BAB held a directions' hearing in relation to the Appeal and, on 4 December 2024, the BAB gave directions and made orders arising from that directions' hearing. After recording that:

1. The parties have advised that an application for a building permit has been sent by the Applicant and received by the Respondent. 2. The Respondent has advised that subject to payment of the building permit application fee, a building permit will be issued during the week ending 6 December 2024.

1. The Respondent has further advised that subject to the building work, the subject of the building permit, being completed in accordance with the approved documents, an occupancy permit could be issued by 20 December 2024.,

the BAB listed the Appeal for administrative mention on 20 December 2024, and indicated:

If by 20 December 2024, neither party has advised the Registrar in writing of their recommendations for the further conduct of the proceeding, the proceeding will be listed for a further directions hearing at the Building Appeals Board's earliest convenience.

1. On 4 December 2024, the Applicant's representative emailed the Respondent:

Following our hearing on Friday, 29 November 2024, we have yet to receive the invoice required to process payment for the levies and proceed with amending the building permit.

Please forward us the invoice as soon as possible to avoid further delays.

1. On 5 December 2024, the Applicant's representative again emailed the Respondent:

Following up on my previous email below, can you please forward us the invoice as soon as possible to avoid further delays?

1. On 11 December 2024, the Applicant's representative again emailed the Respondent:

Following up on my previous email below, can you please forward us the invoice as soon as possible to avoid further delays?

1. On 17 December 2024, the Applicant's representative again emailed the Respondent:

I attempted to reach you and left a message on both your mobile and office phone this morning. I would appreciate it if you could return my call and forward the invoice to us at your earliest convenience to prevent any further delays.

1. On 20 December 2024, the Applicant's representative again emailed the Respondent:

I have tried to reach you and left a message on both your mobile and office phone this morning. I would appreciate it if you could return my call and forward the invoice to us at your earliest convenience to prevent any further delays.

Please note that we are required to receive the Occupancy Permit by 20 December 2024. Alternatively, we will proceed with further administration as per BAB directions and Order.

1. On 14 January 2025, the BAB gave directions and made orders (relevantly):

(a) requiring the Applicant to file and serve a Statement of Contentions by 24 January 2025;

(b) requiring the Respondent to, by 7 February 2025, file and serve a:

document titled Respondent's Statement of Contentions, which must respond to the Applicants' Statement of Contentions, and which must include the reasons for the decision the subject of this appeal and refer to any evidence or other material relied upon in support of that decision.

(c) allowing the Applicant the opportunity to file and serve a Statement of Reply by 14 February 2025; and

(d) listing the Appeal for an e-hearing on 27 February 2025.

1. We conducted the hearing on 27 February 2025. The Applicant was represented by Mr Hong and the Respondent did not appear.

1. Before considering the Appeal, we make some observations.

1. It appears to the panel that the Applicant is somewhat confused and has misunderstood the situation.
2. We also observe that the Respondent has failed to communicate in a timely manner with the Applicant.
3. From the detailed background set out above, our understanding of what has occurred is as follows:

(a) the Permit lapsed in 2018;

(b) the Respondent appears to be of the view[2] that this means that, even if an application had been made to him, he could not have issued an occupancy permit in respect of the Building Work;

(c) the Respondent's inspection in July 2024 identified 'relatively minor design and building works items';

(d) the Respondent then proposed the following solution:

(i) the Applicant applies for (and provides all necessary documents and pays the requisite fee for) a new building permit to authorise building works to address the 'design and building works items';

(ii) the Respondent assesses the documentation and issues a new 'supplemental' building permit;

(iii) the Applicant then has the building work authorised by the new building permit carried out;

(iv) the Respondent carries out all necessary inspections of the building work authorised by the new building permit;

(v) the Applicant then applies to the Respondent for an occupancy permit; and

(vi) (if satisfied that the building is suitable for occupancy), the Respondent issues an occupancy permit; and

(e) as at 29 November 2024, the Respondent had informed the BAB that:

(i) the only matter outstanding was payment of the requisite fee; and

(ii) subject to that fee being paid, the new building permit would be issued by 6 December 2024.

1. However, despite five separate requests, the Respondent did not provide the Applicant with an invoice to enable the fee to be paid.
2. He appears to have simply ignored the Applicant's correspondence.
3. He also failed to respond to the BAB.
4. We also note that his failure to communicate with the Applicant means that he has failed to disavow the Applicant of confusion surrounding the process to be adopted, with the Applicant seemingly thinking that it was waiting on an occupancy permit, not a new building permit.
5. We turn now to consideration of the Appeal.

1. As the BAB[3] observed in Levinson v Trevana (No 2):[4]

In an application under s 138(1)(a) of the Building Act, the Board hears the decision under appeal de novo. In other words, the function of the Board is to effectively stand in the shoes of the original decision-maker and decide the question under review again and afresh. In considering the appeal, the Board may consider matters not raised before the decision under appeal was made. This means that the Board's field of enquiry is not limited to only those circumstances that were before the original decision-maker but may extend to other matters which the original decision-maker had not considered.

1. Before we can 'stand in the shoes of' the Respondent and decide whether an occupancy permit should be issued in respect of the Building Work, we must first be satisfied that the Respondent has either refused, or is deemed to have refused, to issue an occupancy permit.

Has the Respondent refused to issue an occupancy permit?

1. We have set out the background to this matter in some detail.
2. It is clear from the above that there is nothing before us to suggest that the Respondent has refused to issue an occupancy permit.

Is there a deemed refusal by the Respondent to issue an occupancy permit?

An application for an occupancy permit required by a building permit must be made to the relevant building surveyor -

(a) by or on behalf of the owner of the building or the owner of the land, in or on which the building work has been carried out;...

1. Regulation 186 of the Building Regulations 2018 (Regulations) provides (in part):

(1) An application for an occupancy permit must be in the form of Form 15...[5]

(1) The relevant building surveyor must decide an application for an occupancy permit under this Division by -

(a) issuing the permit; or

(b) issuing the permit with conditions; or

(c) refusing the permit.

(2) The regulations may prescribe a time within which the relevant building surveyor must decide an application for an occupancy permit.

(3) The relevant building surveyor is taken to have refused an occupancy permit if the application is not decided within the prescribed time.

1. The means by which the 'prescribed time' is calculated is set out in reg 190 of the Regulations.
2. There is little to no information before us as to what occurred between the date on which the Permit lapsed (11 February 2018) and 30 January 2024.
3. While the Applicant claims that both it and the Builder made multiple attempts to contact the Respondent and obtain an occupancy permit, the only evidence of such attempts (set out in detail above) are from recent times, not from before the Permit lapsed.
4. Most significantly, there is no evidence of the Applicant (or someone acting on the Applicant's behalf) making an application (that is, submitting a Form 15 (as found in Schedule 4 of the Regulations)) to the Respondent for an occupancy permit.
5. Accordingly, the obligation for the Respondent to make a decision whether to issue an occupancy permit has never arisen.
6. It follows that the Respondent is not deemed to have refused to issue an occupancy permit.
7. There is no decision (or deemed decision) for us to reconsider.
8. For these reasons, we consider the only option open to us is to dismiss the Appeal for want of jurisdiction, as the BAB's jurisdiction has not been enlivened by either a refusal or a deemed refusal to issue an occupancy permit.

[1] We note that we were not provided with a copy of the Permit and rely on the Respondent's response to the BAB's directions and orders. That said, we do not doubt that the Permit has lapsed.

[4] [2021] VBAB 10, [4]. Footnotes omitted.

[5] As found in Schedule 4 of the Regulations.