Carter v Tarastar Pty Ltd (Building and Property) [2025] VCAT 704

1. Leave is granted to the applicants to file and serve Amended Points of Claim in the form of the proposed Amended Points of Claim exhibited to the affidavit of Jordana Mary Dymond dated 14 March 2025, save and except for the proposed amendments set out in paragraph 24(d) and paragraph 26 of the proposed Amended Points of Claim. For clarity, leave is refused to include in the Amended Points of Claim the proposed amendments set out in paragraph 24(d) and paragraph 26 of the proposed Amended Points of Claim.
2. Leave is refused for the file and service of the expert report of Mr Filicietti of 'Accord Building Consultants' dated 13 March 2025.
3. Leave is granted for the file and service of the supplementary expert report of Mr James Wilson of 'Built Assess' dated 23 December 2024.
4. Costs reserved with liberty to apply. I direct the principal registrar to forward any costs application to Senior Member Farrelly.
5. This proceeding, together with related proceeding BP1959/2021, is listed for directions hearing at 10:15am on 25 September 2025, at which time the tribunal will make orders for the future conduct of the proceeding.

1. In this proceeding, the applicants have brought claims against the respondents in respect of alleged defective building works affecting the subject home owned by the applicants, that home being unit 9 in a multi-unit development in Brighton, Victoria.
2. The first respondent (builder) is the builder who constructed the units pursuant to a building contract dated on or about 3 June 2010 with the then owner/developer of the subject property.
3. The second respondent, engaged to provide building surveyor services, procured the services of its employee/director, the third respondent Mr Tsaganas, as the relevant building surveyor for the construction works (the second and third respondents hereinafter collectively referred to as the surveyor).
4. The fourth respondent is the Owners Corporation (OC) holding various statutory obligations in respect of the common property in the development.
5. The claims of the applicants against the respondents are set out in the applicants' Points of Claim dated 9 September 2022. That Points of Claim references the various expert reports relied upon by the applicants in support of the allegations in respect of alleged defective building works.
6. By application filed 14 March 2025, the applicants seek leave to file and serve Amended Points of Claim and two further expert reports. The builder and the OC neither consent or object to the orders sought in the application. The surveyor, however, objects to the orders sought.
7. The hearing of the application came before me, by video link, on 18 June 2025. Mr Phillpott of Counsel represented the applicants. Mr Sedal of Counsel represented the surveyor. Mr Brown, solicitor, represented the builder. Mr Cohen, solicitor, represented the OC.
8. The application was supported by the affidavit of Jordana Mary Dymond dated 14 March 2025 (Dymond affidavit) which exhibited:
   • - the proposed amended Points of Claim (PAPOC). The PAPOC is a marked up document which clearly identifies the proposed amendments to the Points of Claim. The PAPOC is annexed to these reasons as 'ANNEXURE A';
   • - the expert report of Mr Filicietti of 'Accord Building Consultants' dated 13 March 2025 (Filicietti report);
   • - the supplementary expert report of Mr James Wilson of 'Built Assess' dated 23 December 2024 (further 2024 Wilson report).
9. The applicants filed a further affidavit of Jordana Mary Dymond dated 16 June 2025 (Dymond further affidavit).
10. The first respondent and the fourth respondent filed no material in respect of the application.
11. In support of its opposition to the application, the surveyor filed the affidavit of Andrew Charles Brennan dated 16 May 2025 (Brennan affidavit) together with written submissions dated 16 May 2025.
12. The Dymond affidavit is a short document which, apart from referencing the exhibits, provides little information as to the history of the proceeding. I note that the affidavit confirms that the applicants' current lawyers commenced acting for the applicants on 22 August 2023. The applicants' current lawyers are the third firm of lawyers who have represented the applicants in this proceeding since its commencement.
13. The Brennan affidavit is a very substantial document which presents a detailed history of the proceeding with reference to numerous exhibited documents including correspondence between the parties.
14. The Dymond further affidavit is a simple document, the purpose of which is to exhibit a letter from the applicants' lawyers to the surveyor's lawyers dated 11 June 2025, and the surveyor's lawyers' response letter of 13 June 2025.

1. The occupancy permit covering the subject building works was issued on 14 November 2011. Pursuant to s 134 of the Building Act 1993 (Vic) (Building Act), the applicants had 10 years from that date to commence a proceeding.
2. The applicants commenced this proceeding by application filed 1 November 2021, shortly before the expiry of the limitation period. The application was filed on behalf of the applicants by their then lawyers. The application provided no details as to the nature of the claims against the named respondents. The application form simply stated: 'Points of Claim to follow'.
3. There is no dispute that the application was served on the surveyor on 25 February 2022 when the Tribunal sent the application and notice of a directions hearing to the surveyor. The date of service is important having regard to the statutory time limitation for the bringing of a contribution claim pursuant to Part IV of the Wrongs Act 1958 (Vic) (Wrongs Act). There is no dispute that, by operation of s 24(4) of the Wrongs Act, the last date by which any contribution claim pursuant to s 23B of the Wrongs Act could be brought by the surveyor was 25 February 2023.
4. On 28 February 2022, the Tribunal received notification that the applicants' lawyers ceased to act. On 8 March 2022, the Tribunal received notification of new lawyers representing the applicants.
5. A directions hearing was conducted on 12 May 2022. Each of the parties were legally represented. Orders were made, amongst others, that the applicants file and serve Points of Claim and any expert reports relied upon by 15 July 2022. At the directions hearing the surveyor's lawyer voiced concern as to the need to know the nature of the claim brought against the surveyor, having regard to the limitation period under s 24(4) of the Wrongs Act. The surveyor's concern in this regard is confirmed in a notation, appearing under the heading 'Other Matters', made by the Tribunal member:

The second and third respondents noted the applicant's application was filed a number of months ago and at a time close to 10 years after the occupancy permit for the property was issued, that it fails to specify any details about the claim against the respondents and no points of claim accompanied the application. They are concerned if the applicants do not properly plead and particularise their claim within a short period, they will not be in a position to properly investigate and consider if they should join any further parties to the proceeding before any time limit expires under s24 of the Wrongs Act 1958...

1. By letter dated 15 July 2022, the applicants' lawyer requested the surveyor's consent to an extension of time to 16 September 2022 for the provision of the applicants' Points of Claim and expert reports. The Surveyor did not consent to the requested extension of time.
2. On 5 August 2022, the surveyor filed and served an application seeking orders pursuant to s 75, alternatively s 76 or 78, of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) that the applicants claim be struck out (the first s 75 application). In short, the surveyor asserted that, with no claim yet articulated by the applicants, and the approaching expiry of the limitation period under s 24 of the Wrongs Act, the proceeding brought by the applicant should be struck out/dismissed.
3. At a directions hearing on 19 August 2022, orders were made, amongst others, that:
   • - the first s 75 application was refused;
   • - the date by which the applicants were to file and serve Points of Claim was extended to 9 September 2022;
   • - the date by which the applicants were to file and serve expert reports was extended to 4 November 2022;
   • - any application for the joinder of a further party to the proceeding was to be made by 28 November 2022; and
   • - the proceeding was listed for a further directions hearing on 12 December 2022 at which time any joinder application would be heard and further orders would be made for the conduct of the proceeding.
4. The applicants filed and served Points of Claim on 9 September 2022. The Points of Claim references the expert reports relied upon by the applicants. As I understand it, those reports have been filed and served. At that time, there were no reports from Mr James Wilson or Mr Filicietti.
5. On 3 November 2022, the applicants notified the respondents of the applicants' efforts to gain a further expert report, and that they would in due course be seeking consent to an extension of time for the provision of such report.
6. On 10 November 2022 the applicants notified the respondents that BSS Group had inspected the property on 8 November 2022 and that the BSS expert considered a roof plumbing expert report was warranted.
7. By letter to the applicants dated 15 November 2022, the surveyor, amongst other things, noted the limitation of the allegations against the surveyor as set out in the Points of Claim:

The only defect for which it is alleged our clients are liable is set out in paragraph 24 of the POC as follows:

A competent relevant building surveyor, acting with reasonable care:

(a) would have known that stamped drawing A-1.5 Rev 8 depicted a step-down from the internal floor of Unit 9 to the Unit 9 balcony terrace of 100mm;

(b) would, on carrying out a final inspection of the Works, have noticed that the balcony terrace was approximately the same level as the internal floor of Unit 9 (Step-Down Defect), hence the Works failed to comply with the Stage 2 Building Permit;

(c) accordingly, pursuant to section 37A of the Building Act 1993 (Vic), would have issued a direction to fix the Step-Down Defect.

1. Also, in that letter of 15 November 2022 to the applicants, the surveyor expressed concern that the obtaining of further expert material by the applicants would presumably also mean that the applicants would seek to amend their Points of Claim.
2. On 15 November 2022, the surveyor also sent a letter to the builder's lawyers which states, amongst other things:

In Points of Claim dated 9 September 2022 (POC), the Applicants allege at paragraph 24(b) that a competent building surveyor, acting with reasonable care:

"would, on carrying out a final inspection of the Works, have noticed that the balcony terrace was approximately the same level as the internal floor of Unit 9 (Step-Down Defect), hence the Works failed to comply with the Stage 2 Building Permit"

The alleged Step-Down Defect is the only defect pleaded as against our clients.

So that our clients may consider their position as to whether further parties should be joined to the proceeding, please confirm:

7.1 that your client is the relevant builder for the purposes of the relevant works conducted at the Applicants premises;

7.2 whether any subcontractors were engaged by your client who may be relevant to the alleged Step-Down Defect; and

7.3 whether your client is aware of any other parties whose services may be relevant to the alleged Step-Down Defect.

1. As noted above, the orders made 19 August 2022 provided for a further directions hearing on 12 December 2022. Because of an administrative error on the part of the Tribunal, the proposed directions hearing for 12 December 2022 could not proceed. On 13 December 2022 the Tribunal made order in chambers re-listing the directions hearing on 27 February 2023.
2. On 24 February 2023, the surveyor filed:

(a) Points of Defence; and

(b) Notice claiming contribution from the builder pursuant to s 23B of the Wrongs Act.

As noted earlier, 25 February 2023 was the last day by which the surveyor could bring a contribution claim under s 23B of the Wrongs Act.

1. The surveyor's contribution claim against the builder specifically references the applicants' claim against the surveyor as set out in the applicants' Points of Claim and seeks, in the event the surveyor is ordered to pay the applicants any money in respect of such claim, contribution from the builder.
2. At the directions hearing on 27 February 2023 orders were made that:

(a) by 30 June 2023, the applicants must file and serve any further expert reports upon which they intend to rely;

(b) by 14 July 2023 the applicants must file and serve any application for leave to file and serve amended Points of Claim;

(c) the proceeding was listed for further directions hearing on 3 August 2023, at which time any application for leave to file and serve amended Points of Claim would be heard, and further orders made for the conduct of the proceeding.

1. By the date of the directions hearing on 3 August 2023, the applicants had not filed and served any further expert reports or any application seeking leave to file amended Points of Claim. At the directions hearing on 3 August 2023, the Tribunal made orders, including the following:
   1. By 10 August 2023 the applicants must file and serve the expert report of building consultant Mr J Wilson of Build Assess, and of Mr M Newell (plumbing report).
   2. By 17 August 2023 the applicants must file and serve the expert report of Mr N Kukulka, building surveyor.
   3. ...

The date by which the applicants must file and serve their application for leave to file amended points of claim, is extended to 31 August 2023. The applicants must file and serve any affidavit in support and submissions of not more than 3 pages.

By 29 September 2023 the respondents must file and serve their responses to the applicants' application together with affidavits in support and submissions of not more than 3 pages.

This proceeding together with related proceeding BP1959/2021 is listed for a further directions hearing on 8 December 2023 at 9:30am (allow 2 hours) at which time the Tribunal will hear the applicants' application and further orders will be made for the future conduct of the proceeding_._

1. On 10 August 2023, the applicants filed and served the expert report of Mr Newell (dated 29 March 2023) and a draft of an expert report of Mr Wilson (dated 19 July 2023).
2. On 23 August 2023, the applicants' current lawyers filed and served notice of them commencing to act for the applicants.
3. In September 2023 there was correspondence between the applicants and the surveyor in respect of the applicants seeking a further extension of time. No agreement was reached.
4. By letter to the respondents dated 15 November 2023, the applicants, amongst other things, set out their proposal for the next steps in the proceeding:

1. the time for compliance with order 1 of the orders of 3 August 2023, being the filing of the building report of Mr J Wilson of Built Assess by the applicants, is extended to 17 November 2023.
2. Orders 2, 4 and 5 of the orders of 3 August 2023 are vacated.
3. By 21 February 2024, the respondents are to file and serve any expert reports they intend to rely upon.
4. By 6 March 2024, the Applicants are to file particulars of loss and damage.
5. The matter is listed for a compulsory conference on a date not before 20 March 2024.
6. The directions hearing listed for 8 December 2023 is vacated.

Mr and Mrs Carter are not proposing to amend their Points of Claim and once the expert report of Mr Wilson is filed, their expert evidence that they will rely upon will be filed and served.

1. Proposed consent orders, in accordance with the above-mentioned proposed steps, were included with the correspondence.
2. On 4 December 2023, the applicants emailed the parties providing amended proposed consent orders which extended the proposed date for the file and service of the expert report of Mr Wilson to 8 December 2023.
3. The surveyor did not agree to the proposed orders, and the matter proceeded to the directions hearing on 8 December 2023. The Tribunal's orders, and preliminary notations, made at the directions hearing on 8 December 2023 include the following:

1. The applicants did not file an application seeking leave to file and serve Amended Points of Claim as indicated they would at the directions hearing on 3 August 2023.
2. The applicants continue to rely on the Points of Claim filed and served on 9 September 2022.

1. The applicants have not filed and served the expert report of Mr Kukulka and have not sought leave to do so.

1. By 8 December 2023 the applicants are to file and serve the report of Mr J Wilson of Built Assess.
2. By 2 February 2024 the applicants are to file and serve their Particulars of Loss and Damage.
3. By 22 March 2024 the each of the respondents are to file and serve any expert reports on which they intend to rely...
4. This proceeding ... is listed for a compulsory conference to be conducted on 8 May 2024 commencing at 10:00am ...

1. On 8 December 2023, the applicants filed and served the expert report of Mr J Wilson (dated 30 October 2023).
2. On 2 February 2024, the applicants filed and served Particulars of Loss and Damage.
3. On 6 May 2024, the Tribunal made orders by consent adjourning the compulsory conference to 14 October 2024. As I understand it, the adjournment was agreed by the parties to accommodate the request of the OC which was awaiting an expert report.
4. On 10 October 2024, the surveyor filed and served an application seeking order that the applicants' claims against the surveyor be summarily dismissed pursuant to s 75 of the VCAT Act (the second s 75 application). The second s 75 application was supported by the affidavit of James Michael Clifford dated 10 October 2024. Mr Clifford's affidavit reiterates the history of delays on the part of the applicants, and the limited nature of the claim brought against the surveyor as set out in the Points of Claim.
5. The reason/s why the surveyor considered a summary dismissal of the claim against it was warranted are not clearly articulated in the second s 75 application material. Presumably the surveyor considered the expert evidence provided by the applicants was insufficient to establish liability for the claim against the surveyor as articulated in the Points of Claim.
6. In any event, the compulsory conference proceeded, as listed, on 14 October 2024. Settlement was not achieved, and orders were made as to the future conduct of the second s 75 application:
   1. The surveyor to file and serve any further material, including submissions, by 15 November 2024;
   2. The applicants to file and serve response material by 10 December 2024; and
   3. The proceeding was listed for directions hearing on 5 February 2025 for the purpose of hearing the second s 75 application and making further orders for the conduct of the proceeding.
7. Thereafter the applicants and the surveyor corresponded as to the future conduct of the proceeding, including the second s 75 application, without agreement being reached. The matter proceeded to the directions hearing on 5 February 2025.
8. The Tribunal's preliminary notations appearing above the orders made at the directions hearing on 5 February 2025 confirm that:
   • - at the directions hearing, the surveyor sought to adjourn the hearing of the second s 75 application to the first day of the final hearing of the proceeding (which was not yet listed). Following the tribunal's refusal to grant this request, the surveyor confirmed that it did not wish to pursue the second s 75 application; and
   • - the applicants advised the Tribunal and other parties that they intended to obtain further expert material and that they would then likely seek to file and serve such material with amended Points of Claim.
9. The orders made at the directions hearing included the following:
   1. The second and third respondents' application for an order pursuant to section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) is struck out.
   2. Any application by the applicants for leave to file and serve any further expert report/s and/or for leave to file and serve amended points of claim, must be made by 14 March 2025, attaching the proposed further expert report/s and proposed amended points of claim.
   3. By 4 April 2025, the respondents must file and serve any material they rely upon in reply to the applicants' application.
   4. This proceeding is listed for a further directions hearing ... on 18 June 2025 at 2:15pm at which time any application by the applicants for leave to file and serve further expert reports and/or amended points of claim will be heard and further orders will be made for the future conduct of the proceeding ...
10. The applicants' application seeking leave to file and serve amended Points of Claim and the further 2024 Wilson report and the Filicietti report, together with the Dymond affidavit, were filed and served on 14 March 2025.

1. The Tribunal's power to order the amendment of a pleading derives primarily from s 127 of the VCAT Act which provides:

(1) At any time, the Tribunal may order that any document in a proceeding be amended.

(2) An order under subsection (1) may be made on the application of a party or on the Tribunal's own initiative.

1. The Tribunal also has a general power under section 80 of the VCAT Act:

The Tribunal may give directions at any time in a proceeding and do whatever is necessary for the expeditious or fair hearing and determination of a proceeding.

1. Section 97 of the VCAT Act prescribes the general duty of the Tribunal to act fairly:

The Tribunal must act fairly and according to the substantial merits of the case in all proceedings.

1. The parties agree that the High Court's decision in Aon Risk Services Australia Ltd v Australian National University[1] (Aon), sets out matters for consideration in an application to amend a pleading:

(a) whether there will be a substantial delay caused by the amendment;

(b) the extent of any wasted costs;

(c) whether there is an irreparable element of unfair prejudice caused by the amendment;

(d) concerns of case management arising from the stage in the proceeding when the amendment is sought;

(e) whether the grant of the amendment will lessen public confidence in the judicial system; and

(f) whether satisfactory explanation has been given for seeking the amendment at the stage when it is sought.

1. The High Court in AON also relevantly stated:[2]

An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend...

A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.

1. From the outset of its involvement in this proceeding, the surveyor asserted the importance of knowing the nature of the claim brought against it. Early in the proceeding, the surveyor raised its concern in relation to the limitation period in respect of a contribution claim under s 23B of the Wrongs Act. And from the date the applicants' Points of Claim were first provided, 9 September 2022, the surveyor has consistently asserted the limited nature of the claim brought against it.
2. It is logical and reasonable that the surveyor would assess and plan its defence and actions in the proceeding on the basis of the pleaded claim brought against it. Such assessment would naturally include whether expert opinion evidence should be obtained, and whether further protection should be sought by way of joining further parties to the proceeding for the purpose of contribution in respect of any liability, and/or the limitation of liability having regard to the apportionment of responsibility to a concurrent wrongdoer.
3. That the surveyor would act in such manner should be no surprise to the applicants who have been legally represented from the commencement of the proceeding. In any event, lest there be any doubt, the surveyor made its position clear.
4. On 15 November 2022, a short while after the Points of Claim were served, the surveyor clarified to the applicants the surveyor's view as to the limited nature of the claim brought against it.
5. In respect of the claim against the surveyor, the Points of Claim allege:
   • - the failure of the surveyor to recognise that the subject works did not comply with the relevant stamped drawings in respect of a step-down to the balcony, and
   • - the failure of the surveyor to issue a direction to fix in respect of the step-down defect; and
   • - the surveyor ought to have refused issuing the occupancy permit until step down rectification works had been carried out, or alternatively, the surveyor ought to have issued an occupancy permit with conditions as to rectification of the step-down defect.
6. This clarification was provided within the context of the applicants' notification that it would be seeking further expert material, and the surveyor's concern that any such further expert material might lead to the applicants seeking to amend their Points of Claim, and the surveyor's concern as to the expiry of the time limitation in respect of a contribution claim under s 23B of the Wrongs Act.

1. The surveyor says that the amended claim the applicants now seek to file, as set out in the PAPOC, raises new allegations against the surveyor. In my view, paragraphs 24(d) and 26 in the PAPOC do raise new allegations against the surveyor to the following effect:
   • - the alleged failure of the surveyor to identify that the building permit endorsed architectural drawings did not meet requirements under the Building Act and other relevant legislation in respect of the details of method of weatherproofing external walls and the terrace/balcony, and stormwater drainage to the balcony; and
   • - the alleged failure of the surveyor to identify at the final inspection the inadequate fall of the subject terrace/balcony.
2. Paragraphs 24 and 26 of the PAPOC set out the new allegations. Paragraph 26 expresses reliance in respect of such allegations on the Filicietti report dated 3 March 2025 and the report of Built Assess [Mr James Wilson] dated 30 October 2023. Notably, the PAPOC does not reference the further 2024 Wilson report in respect of the new allegations against the surveyor. The further 2024 Wilson report is only referenced in paragraph 18E in the PAPOC in respect of the claims brought against the builder.
3. The surveyor says that the new allegations in paragraph 26 of the PAPOC fundamentally change the claim against it by adding the alleged failure on the part of the surveyor to identify defects in the architectural drawings.
4. The applicants submit that the proposed amendments do not change the nature of the claim brought by them, but rather merely provide further particulars of the existing claim set out in the Points of Claim.
5. I do not accept the applicants' submission. In my view, an allegation that a surveyor has breached its duty of care by not identifying defects in construction drawings [at building permit stage] is fundamentally different to a claim that a surveyor has breached its duty by not recognising that constructed works do not comply with the construction drawings. I am satisfied that the PAPOC raises new allegations which fundamentally alter the nature of the claim brought against the surveyor.

1. The surveyor submits that allowing the amended claim against it would cause significant delay in the proceeding. The surveyor would almost certainly need to obtain expert opinion to respond to the new allegations and the expert material upon which the new allegations are founded. The surveyor says it would most likely also bring an application for the joinder of a further party to the proceeding - the person responsible for the relevant alleged defective drawings - for the purpose of an amended defence to include an assertion of apportionment of liability to such person pursuant to Part IVAA of the Wrongs Act.
2. I accept the surveyor's submission. Amended pleadings with new allegations and new expert material, inevitably lead to significant prolongation in the progress of a proceeding such as this.
3. The applicants submit that any delay would cause little if any prejudice having regard to the fact that the proceeding has not yet been listed for final hearing.
4. The lawyers for the parties would be aware that the Tribunal's current listing procedure is to wait, before listing a matter for final hearing, for confirmation from the parties that interlocutory orders have been complied with, together with confirmation as to the estimated time required to conduct a final hearing and the parties' readiness for final hearing.
5. In my view, the delay (before the matter would be considered ready for final hearing listing) resulting from the possible addition of a further party (even if only for the purpose of potential apportionment of responsibility under Part IVAA of the Wrongs Act) together with a new round of pleadings and expert evidence would be significant.
6. Very little is provided by the applicants as explanation for seeking to amend their Points of Claim at a stage when the proceeding had been on foot for more than 3 years, bearing in mind also that the applicants had previously notified the parties, in November 2023, that they were not proposing to amend their Points of Claim. The explanation proffered by the applicants is contained in paragraphs 16 of the Dymond affidavit:

During the course of the applicants considering the s.75 application, it was decided that the Applicants wanted to obtain further expert evidence to address the liability of the Second and Third respondents.

[The reference to the s 75 application is a reference to the second s 75 application filed by the surveyor on 10 October 2024]

1. In my view, the explanation is unsatisfactory. The surveyor, as far back as November 2022, gave notice to the applicants as to the limitations, as judged by the surveyor's lawyers, to the claim brought against the surveyor as set out in the Points of Claim. In the knowledge of such notification, the applicants subsequently confirmed to all parties that they did not propose to amend their claim. It seems that the applicants subsequently reassessed the strength of their claim with the result that they have changed their mind and now wish to bolster their claim against the surveyor with new allegations. As discussed above, I consider the PAPOC raises new allegations which fundamentally alter the nature of the claim brought against the surveyor.

1. The surveyor says that allowing the pleading amendment would raise an irreparable prejudice to the surveyor in that it is now too late to bring any further contribution proceeding under section 23B of the Wrongs Act (s 23B claim). As discussed earlier, the expiry date for bringing a s 23B claim was 25 February 2023, and the surveyor gave early notice to the applicants of its need to see the claim brought against it ( be served with the Points of Claim), so that it could assess whether to seek to join a party to the proceeding for the purpose of a s 23B claim.
2. On 24 February 2023, the surveyor filed a s 23B claim against the builder.
3. The surveyor says that, had the Points of Claim raised the allegation as to the failure on the part of the surveyor to identify alleged defective drawings, the surveyor may well have sought to join a party responsible for the drawings.
4. The applicants submit that there is no real prejudice to the surveyor as it has always been open to the surveyor, from the commencement of the proceeding, to make enquiries and identify potential respondents to a s 23B claim.
5. I do not accept the applicants' submission that there is no prejudice. It is clear that the surveyor was making enquiries and considering its plan of action, in respect of potential s 23B claims, before the expiry of the relevant statutory time period. The surveyor's correspondence to the applicants and to the builder on 15 November 2022 (noted earlier in these reasons) is testament to that, as is the fact that the surveyor did indeed bring a s 23B claim against the builder.
6. That the surveyor's enquiries did not result in it seeking to join any further party to the proceeding for the purpose of a s 23B claim is not surprising having regard to the limited nature of the claim brought against the surveyor as set out in the Points of Claim.
7. In my view, allowing the applicants to amend their claim against the surveyor in the form proposed would, by reason of the expiry of the statutory period for bringing a s 23B claim, raise a prejudice to the surveyor.
8. I note for completeness that, at least in respect of statutory time limits, there is no bar to the surveyor now seeking to add a defence asserting the potential apportionment of liability of a concurrent wrongdoer pursuant to Part IVAA of the Wrongs Act. Of course, an application would need to be made and considered. And of course, a defence as to the potential apportionment of liability to a concurrent wrongdoer is quite different to a claim for contribution against the same alleged wrongdoer.
9. Finally, I note that on around 28 June 2025 (10 days after the hearing before me on 18 June 2025) the applicants' lawyers sent an email to the Tribunal, with an attached ASIC search, requesting that it be directed to me. The purpose of the email was to inform me that the entity identified in the ASIC search was the architect responsible for the relevant construction drawings, and as noted in the ASIC search, that entity had a liquidator appointed on 12 March 2025.
10. No explanation was provided by the applicants' lawyers as to why they considered it appropriate to seek to present further evidence - unsworn, untested and without invitation - after the completion of the hearing before me. In my view it is clearly not appropriate, and I disregard it.

1. The applicants commenced this proceeding on 1 November 2021, just prior to the expiry of the 10 year statutory limitation prescribed in the Building Act. The originating application was filed with no articulated claim as to the alleged liability of the various respondents. The applicants were then represented by lawyers, and they have been represented by lawyers throughout the proceeding.
2. From the outset of its involvement in the proceeding, the surveyor alerted the applicants to the surveyor's need, having regard to time limitation in respect of s 23B claims, to understand the nature of the claim brought against it.
3. It took the applicants until 9 September 2022, 10 months after they commenced the proceeding, to file and serve Points of Claim articulating the claims brought against each of the respondents.
4. On 27 February 2023, the Tribunal made an order, amongst others, requiring the applicants to file and serve any application for leave to file and serve amended Points of Claim by 14 July 2023. By further order made 3 August 2023, the date by which the applicants were to file and serve any such application was extended to 31 August 2023.
5. On 15 November 2023, the applicants confirmed to the respondents that they were not proposing to amend their Points of Claim.
6. More than a year later, at a directions hearing on 5 February 2025, the applicants raised their change of mind in that they now wished to obtain further expert evidence and likely seek to amend their Points of Claim. Pursuant to orders made that day, on 14 March 2025 the applicants filed and served their application seeking leave to file and serve the further expert material and amended Points of Claim.
7. As discussed above, the PAPOC, insofar as it presents the applicants' case against the surveyor, fundamentally alters the nature of the claim sought to be brought against the surveyor. In my view, having regard to the history of the proceeding and the fact that statutory time limits are long expired, to now allow such fundamental amendment would likely erode public confidence in the Tribunal's ability and commitment to dispensing justice with fairness and efficiency.

1. The applicants submit that the overriding consideration is: what does the interest of justice dictate?
2. For the reasons discussed above, I find that the interest of justice dictates that the applicants be refused leave to amend their claim against the surveyor as proposed in the PAPOC. The applicants have not been denied sufficient opportunity to identify the issues they seek to agitate as against the surveyor. In my view it would be prejudicial and unfair to the surveyor to allow, more than 3 years after the commencement of the proceeding, the proposed amendments which would fundamentally change the nature of the claim brought against the surveyor.
3. As the proposed amendments are founded on expert opinion expressed in the Filicietti report, I will also refuse leave for the file and service of the Filicietti report.
4. The PAPOC also includes proposed amendments in respect of the allegations brought against the builder. Paragraphs 18D and 18E in the PAPOC set out additional allegations as against the builder, with express reference to the report of Mr James Wilson dated 30 October 2023 and the further 2024 Wilson report. The builder has raised no objection to such amendments, or to the file and service of the further 2024 Wilson report. As such I am satisfied it is reasonable that leave be granted to allow such amendments and the file and service of the further 2024 Wilson report.
5. Accordingly, I will:
   • - refuse leave to file and serve the Filicietti report;
   • - grant leave to the file and serve Amended Points of Claim in the form of the PAPOC, save and except for the proposed amendments to paragraph 24(d) and paragraph 26;
   • - grant leave to file and serve the further 2024 Wilson report.
6. I will reserve costs with liberty to apply.

1. The Applicants are, and since about 25 May 2017 have been, the registered proprietors of the land at 9/15 Well Street, Brighton (Unit 9).

1. The First Respondent (Builder) is and at all material times has been incorporated under the Corporations Act 2001 (Cth) and able to be sued.

(a) is and at all material times has been incorporated under the Corporations Act 2001 (Cth) and able to be sued;

(b) was, until about 14 November 2021, known as Nicholson Wright Pty Ltd, and thereafter has been known as CODEHQ Pty Ltd.

1. The Third Respondent (Mr Tsaganas) at all material times was:

(a) a registered building practitioner in the category of:

1. "building surveyor (unlimited)" (number BS-U 1329); and

1. "building inspector (unlimited)" (number IN-U 1282),

except for a 3-month period of suspension between 20 May and 20 August 2013, and a further period of suspension in 2015 - 2017 (as to which see Victorian Building Authority v Tsaganas [2017] VSCA 248); and

(b) a director and/or employee of the Second Respondent.

1. The Fourth Respondent is and at all material times has been:

(a) incorporated under section 28(1)(a) of the Subdivision Act 1988 (Vic) by registration of Plan of Subdivision PS636725G (Plan of Subdivision);

(b) able to be sued under section 28(2) of the Subdivision Act 1988 (Vic);

(c) the registered owner of the common property at 15 Well Street, Brighton (more particularly described in the Plan of Subdivision), as nominee of the owners for the time being of the lots at 15 Well Street, Brighton.

1. On or about 3 June 2010, the Builder entered into a contract for the construction of 10 apartments, basement garage and a front fence (Works) at 15 Well Street, Brighton (Contract).

The Applicants do not know the identity of the other contracting party/parties, or whether the Contract was in writing, oral or to be implied. The insurance certificate in the Vendor's Statement (defined in paragraph 15 below) refers to the Builder, states that the "Building Owner / Beneficiary" was Ashlyn Dale Pty Ltd and Hallinan Holdings Pty Ltd, and states that the contract date was 3 June 2010. Further particulars will be provided after discovery.

1. The Contract was a "domestic building contract" for the purposes of the Domestic Building Contracts Act 1995 (Vic) (DBCA), and accordingly the Contract included the following terms implied by section 8 of the DBCA:

(a) the Builder warranted that the work would be carried out in a proper and workmanlike manner and in accordance with the plans and specifications set out in the contract (section 8(a));

(b) the Builder warranted that all materials to be supplied by the builder for use in the work would be good and suitable for the purpose for which they are used (section 8(b));

(c) the Builder warranted that the work would be carried out in accordance with, and would comply with, all laws and legal requirements including, without limiting the generality of this warranty, the Building Act 1993 and the regulations made under that Act (section 8(c));

(d) the Builder warranted that the work would be carried out with reasonable care and skill (section 8(d));

(e) the Builder warranted that the home would be suitable for occupation at the time the work was completed (section 8(e));

(f) the Builder warranted that the work and any material used in carrying out the work would be reasonably fit for the purpose of constructing a residential building or would be of such a nature and quality that they might reasonably be expected to achieve that result (section 8(f)).

1. On a date not known to the Applicants, the Second Respondent was engaged to provide building surveying services in respect of the project.

The Applicants do not know the identity of the other contracting party/parties, or whether the contract was in writing, oral or to be implied. Further particulars will be provided after discovery.

1. The Second Respondent procured Mr Tsganas to act as the "Relevant Building Surveyor" in respect of the project.

1. On or about 25 June 2010, Mr Tsaganas issued a Building Permit (Stage 1 Building Permit) in respect of the Works.

The Applicants do not hold a copy of the Stage 1 Building Permit. Further particulars may be provided after discovery.

Stamped as part of the Stage 1 Building Permit was drawing A-1.5 Rev 3, which relevantly depicted a step-down from the internal floor of Unit 9 to the Unit 9 balcony terrace of 150mm.

1. On or about 25 or 26 November 2010, Mr Tsaganas issued Building Permit BS-1329/20101636/2 ("Stage 2 - To completion - includes fire service") (Stage 2 Building Permit) in respect of the Works.

The Stage 2 Building Permit was in writing and addressed to the "Owner" (described as "Jonathan Hallinan") and the "Agent" (described as "Brayshaw Architects").

The Stage 2 Building Permit relevantly provided that there was to be a mandatory inspection on "Completion of works", and that an occupancy permit would be required.

Stamped as part of the Stage 2 Building Permit was drawing A-1.5 Rev 8, which relevantly depicted a step-down from the internal floor of Unit 9 to the Unit 9 balcony terrace of 100mm.

1. On or about 19 October 2011, the Plan of Subdivision was registered.

1. On or about 14 November 2011, Mr Tsaganas represented that he carried out various inspections in respect of the Works.

The Occupancy Permit (defined in paragraph 14 below) recorded the following inspections:

1. On or about 14 November 2011, Mr Tsaganas issued Occupancy Permit 20101636 (Occupancy Permit).

The Applicants became owners of 9/15 Well Street

1. On or about 25 February 2017, the Applicants entered into a contract of sale to purchase Unit 9.

The contract of sale, and the associated Vendor's Statement dated 30 November 2016 (Vendor's Statement), were in writing.

1. On or about 10 June 2017, the Applicants became the registered proprietors of Unit 9.

1. By reason of section 9 of the DBCA, the Applicants thereupon became able to take proceedings for a breach of any of the warranties listed in section 8 of the DBCA as if the Applicants were parties to the Contract.

(a) water ingress caused by defective works in respect of the Unit 9 terrace balcony (Balcony Defects); and

(b) water ingress caused by defective works in respect of the common property roof above Unit 9 (Roof Defects).

In respect of the Balcony Defects, the Applicants rely on the following reports:

1. Mr Clinton Eldridge (Buildcheck) dated 27 November 2017, specifically:

(ii) Section 1.2 Internal Dampness - Lounge (pages 7 - 10);

(iii) Section 1.3 Loose Tiles and Efflorescence - Balcony (pages 11 - 14); and

(iv) Section 2.2 Flashing to Balcony Doors (page 28);

Mr Eldridge also made recommendations as to the scope of rectification (page 5).

1. Mr Fenton Moran (Domestic Building Dispute Resolution Victoria (DBDRV)) dated 6 September 2018, specifically:

(i) items 7 - 10 and 16 re rising damp, water penetration and water leaking (pages 11 - 15 and 23); and

(ii) items 14 - 15 re tiles and grout (pages 19 - 21);

1. Mr Geoff Clark (Vivid Civil Engineers) dated 17 November 2021, Section 3.1 Signs of Structural Issues (page 7), specifically:

(i) the tile clad deck is showing signs of water damage, with efflorescence observed within the tile grout;

(ii) drummy tiles throughout deck area indicates deteriorating tile connection/deck membrane;

(iii) ponding to deck area indicates insufficient grade on the deck.

(iv) grated drain points to the deck undersized; and

(v) tile deck is approximately the same level as the internal floor which is noncompliant to NCC-2019.

Mr Clark also made recommendations as to the scope of rectification (page 8).

1. Mr James Wilson of Built Assess dated 30 October 2023 which stated:

(i) The terrace leaks causing dampness and deterioration to the Applicants' property;

(ii) The terrace waterproofing does not comply with AS4654.2;

(iii) There is efflorescence in the mortar joints of the terrace tiling and the terrace tiling is damaged;

(iv) The bathroom and ensuite waterproofing is allowing water to penetrate behind the tile linings causing dampness and a loss of amenity and is not compliant with AS3740;

(v) A roof leak has caused irreparable damage to the gas fireplace;

(vi) The extraction fan to the master bedroom ensuite is not fit for purpose; and

(vii) The heater flues located which discharge flue gasses near the terrace do not comply with AS5601.1.

1. Mr James Wilson of Built Assess in his supplementary building report dated 23 December 2024 which stated:

(i) The performance requirement of the BCA has not been satisfied at the doors onto the balcony;

(ii) The failure to have a waterproofed freeboard or a waterproofed step-down to prevent water penetrating the building at the doorsills is a defect; and

(iii) The architectural drawings do not detail any step-down between the internal floor and the balcony floor.

In respect of the Roof Defects, the Applicants rely on the following reports:

1. Mr Clinton Eldridge (Buildcheck) dated 27 November 2017, specifically:

(i) Section 1.5 Water Stain to Powder Room Ceiling (pages 17 - 18); and

(ii) Section 2.1 Lagging to Pipes on Roof (page 27);

(iii) Section 2.2 Flashing to Balcony Doors (page 28);

Mr Eldridge also made recommendations as to the scope of rectification (page 5).

1. Mr Fenton Moran (DBDRV) dated 6 September 2018, specifically item 11 re water leaking (page 16).

1. Mr Peter Wenning (Wenning Technical Services) dated 23 January 2018, who identified roof plumbing defects including some specifically located over Unit 9, namely:

(ii) tray flashing joints (over Unit 9) (item 12 on page 6);

(iii) box gutter sump 1 overflow device (over Unit 9) (item 13 on page 7);

(iv) parapet and barge cappings and flashings (item 14 on pages 7 - 8);

(v) plant area roof drainage and overflow (item 15 on pages 8 - 9);

(vi) joints between intersecting roof sheets and flashings (item 16 on page 9);

(vii) box gutter sump 2 overflow device (item 17 on page 10);

(viii) box gutter changes of direction (item 18 on page 10);

(ix) box gutter sump 3 and 4 overflow devices (item 19 on page 11);

(xi) box gutter sump 5 overflow device (over Unit 9) (item 21 on page 12);

(xii) roof sheet turn down treatment (item 22 on page 12);

(xiii) roof sheet turn up treatment (item 23 on page 13);

(xiv) sarking to box gutters (item 24 on page 13);

(xv) capping turn down substandard (item 25 on page 14);

(xvi) box gutter depth substandard (item 26 on page 14);

(xvii) joints between intersecting flashings (item 26 on page 15);

(xviii) substandard cuts in capping to match profile of roof sheets (item 27 on page 15).

Mr Wenning also made recommendations as to the scope of rectification (item 29 on page 16).

Further, in respect of Unit 9 Mr Wenning opined (item 30 on page 16):

"We have been asked to identify and report the source, cause

and rectification of the water leak into Unit 9 Powder Room.

It is likely that the underlying cause of water entry is lack of turn-

up at the upper end of roof sheets under the ridge capping, and

inadequate laps, fixings and sealant in joints between flashings

1. Mr Geoff Clark (Vivid Civil Engineers) dated 17 November 2021, Section 3.1 Signs of Structural Issues (page 7), specifically:

(i) roof drainage appears to be non-compliant to AS3500; and

(ii) staining to the ceiling in areas indicates leakage of the roof/roof drainage,

Mr Clark also made recommendations as to the scope of rectification (page 8).

Further particulars may be provided. following expert evidence (which the Tribunal has ordered the Applicants to deliver by 4 November 2022).

1. By reason of the matters above, the Builder breached the warranties in paragraph 7 above in that:

(a) the work was not carried out in a proper and workmanlike manner and in accordance with the plans and specifications set out in the contract (section 8(a));

(b) all materials supplied by the builder for use in the work were not good and suitable for the purpose for which they were used (section 8(b));

(c) the work was not carried out in accordance with, and did not comply with, all laws and legal requirements including, without limiting the generality of this warranty, the Building Act 1993 and the regulations made under that Act (section 8(c));

(d) the work was not carried out with reasonable care and skill (section 8(d));

(e) the home was not suitable for occupation at the time the work was completed (section 8(e));

(f) the work and any material used in carrying out the work was not reasonably fit for the purpose of constructing a residential building or was not of such a nature and quality that they might reasonably be expected to achieve that result (section 8(f)).

1. The Applicants suffered loss and damage by reason of the aforesaid breach/es.

Cost of rectification of the defects and consequential damage caused thereby.

The Applicants rely on the expert report of Built Assess dated 30 October 2023.

In his report dated 27 November 2017, Mr Clinton Eldridge (of Buildcheck) estimated the cost of his scope of rectification work to be $186,500.

Further particulars may be provided following expert evidence. (which the Tribunal has ordered the Applicants to deliver by 4 November 2022).

The claim against Mr Tsaganas and the Second Respondent

1. Mr Tsaganas and/or the Second Respondent owed subsequent owners, including the Applicants, a common law duty of care.

See Moorabool Shire Council & Anor v Taitapanui (2006) 14 VR 55; [2006] VSCA 30.

More particularly, the aforesaid duty arose at law because:

1. at all relevant times, Mr Tsaganas and/or the Second Respondent held themselves out as possessing the skill to provide building surveying services;

1. Mr Tsaganas and/or the Second Respondent assumed responsibility for carrying out the building surveying services;

(i) the subsequent owner/s of land at 15 Well Street, Brighton, would have an interest in both the land and in the Works;

(ii) the purchase of the land and the Works by a subsequent owner would be a very significant investment;

(iii) the subsequent owner/s of the land, including the Applicants, would rely upon the building surveying services having been performed with reasonable care and skill, in entering an agreement to purchase the land and in paying a significant price for the land and the Works; and

(iv) if Mr Tsaganas and/or the Second Respondent failed to take reasonable care in conducting the building surveying services, the Applicants could suffer significant economic loss and/or damage to the Works due to defects in the Works.

1. the Applicants were vulnerable and at risk of harm in respect of any failure by Mr Tsaganas and/or the Second Respondent to take reasonable care in carrying out the building surveying services by reason of the matters aforesaid and because:

(i) the Applicants had no right to vet or veto the appointment of Mr Tsaganas and/or the Second Respondent as the provider of building surveying services;

(ii) the Applicants had no contractual relationship with Mr Tsgaanas and/or the Second Respondent;

(iii) the Applicants had no ability to oversee the work of Mr Tsaganas and/or the Second Respondent or assess the competence of Mr Tsaganas and/or the Second Respondent in the course of it performing its role as the provider of building surveying services for the Works; and

(iv) the Applicants did not have the building qualifications or expertise to independently assess the building surveying services or the Works;

1. the probability that harm would occur to the subsequent owner/s of the land and the Works, including the Applicants, if Mr Tsaganas and/or the Second Respondent failed to take reasonable care in performing the building surveying services was significant, because the building surveying services related to crucial elements of the Works;
2. the likely seriousness of the harm that could occur to the subsequent owner/s, including the Applicants, if Mr Tsaganas and/or the Second Respondent failed to take reasonable care in providing building surveying services was significant, because if critical parts of the Works proved inadequate then the cost to rectify the Works and/or damage to the value of the land would be significant;

1. the burden to Mr Tsaganas and/or the Second Respondent of taking precautions to avoid the risk of harm to the subsequent owner/s of the land, including the Applicants, in conducting building surveying services was low, because taking precautions to avoid the risk of harm required only that Mr Tsaganas and/or the Second Respondent exercise reasonable care and skill in performing a task which they had willingly undertaken for reward;

1. the imposition of a duty of care in the circumstances would not create indeterminate liability or discourage an activity of social utility; and

1. such a duty of care is compatible with Mr Tsaganas' and/or the Second Respondent's contractual and statutory obligations, which they willingly undertook for reward.

1. Pursuant to section 37A of the Building Act 1993 (Vic) if, after the inspection of building work, the relevant building surveyor believes on reasonable grounds that the building work fails to comply with the Act, the building regulations or the building permit issued in relation to the building work, the relevant building surveyor must give a direction to fix the building work.

The Applicants refer to and rely on the particulars under paragraph 13 above.

1. A competent relevant building surveyor, acting with reasonable care:

(a) would have known that stamped drawing A-1.5 Rev 8 depicted a step-down from the internal floor of Unit 9 to the Unit 9 balcony terrace of 100mm;

(b) would, on carrying out a final inspection of the Works, have noticed that the balcony terrace was approximately the same level as the internal floor of Unit 9 (Step-Down Defect), hence the Works failed to comply with the Stage 2 Building Permit;

(c) accordingly, pursuant to section 37A of the Building Act 1993 (Vic), would have issued a direction to fix the Step-Down Defect;

(d) would not have issued the occupancy permit while the Step-Down Defect existed.

(a) did not notice the Step-Down Defect at or before final inspection;

(b) did not issue a direction to fix the Step-Down Defect;

(c) instead, issued the Occupancy Permit in circumstances where it should have been refused (or, alternatively, issued with conditions in respect of the rectification of the Step-Down Defect).

The Applicants refer to the matters in paragraphs 22 to 25 above.

The Applicants rely on the report of Built Assess dated 30 October 2023.

The Applicants also rely on the report of Accord Building Consultants dated 13 March 2025 which opines that a relevant building surveyor:

(a) Would have identified that the stage 2 building permit drawings did not meet the requirements of the Building Act, Building Regulations, Building Code of Australia and Australian Standards with regard to:

1. The details and method of weatherproofing of external walls, and terraces/balconies, that is the Balcony Defects; and

1. The compliance of stormwater drainage to the balconies complying with AS3500.3-2003;

(b) Would have identified that the building permit endorsed architectural drawings did not provide a reasonable description or details regarding the waterproofing of the external walls or terraces/balconies at the Applicants' property;

(c) Would have identified that the building permit endorsed architectural drawings do not provide adequate design details of the terrace drainage to confirm how compliance with AS 3500.3-2003 has been achieved;

(d) Would have identified that the building permit endorsed architectural drawings do not provide a reasonable description of how to waterproof the external walls and terraces/balconies of the Applicants' property;

(e) Would, upon carrying out the final inspection, identified the following defects:

1. Lack of a stepdown at the doorways to the terrace in the Applicants' property and the potential for water to penetrate through the door openings causing damage; and

1. The reduced grade to the terrace of the Applicants' property being as minimal as 1 in 200 (5mm/m) in lieu of a minimum 1 in 100 gradient.

Further particulars may be provided following expert evidence. (which the Tribunal has ordered the Applicants to deliver by 4 November 2022).

1. The Applicants suffered loss and damage by reason of the aforesaid breach.

The Applicants refer to and repeat the particulars under paragraph 20 above. in respect of the cost of rectification of the Step-Down Defect and consequential damage caused thereby.

1. The Second Respondent is and remains vicariously liable for Mr Tsaganas' aforesaid breach.

1. Pursuant to section 46 of the Owners Corporations Act 2006 (Vic), the Fourth Respondent has a statutory obligation to repair and maintain:

(b) the chattels, fixtures, fittings and services related to the common property or its enjoyment.

1. In breach of the aforesaid obligation, the Fourth Respondent has not repaired or maintained the common property.

The Applicants refer to and repeat paragraph 18(b) above, and the particulars thereunder, in respect of the Roof Defects.

1. The Applicants suffered loss and damage by reason of the aforesaid breach.

The Applicants refer to and repeat the particulars under paragraph 20 above in respect of the cost of rectification of the Step-Down Defect and consequential damage caused thereby.

Domestic Building Dispute Resolution Victoria (DBDRV)

1. On 2 November 2018, the DBDRV issued a certificate of conciliation under section 46E of the DBCA in respect of the Applicants and the Builder.

1. On 10 November 2021, the DBDRV issued certificates of conciliation under section 45F of the DBCA in respect of the Applicants and the Second Respondent and Mr Tsaganas respectively.

1. By reason of the aforesaid certificates the Applicants were therefore entitled to commence this proceeding by reason of section 56 of the DBCA.

As against Mr Tsaganas (Third Respondent) and the Second Respondent:

1. An order that the Fourth Respondent repair and maintain the common property in respect of the Roof Defects.

................................................................

[1] [2009] HCA 27; (2009) 239 CLR 175.