1. The Applicant then engaged a consulting engineer and a consulting building surveyor to assess the proposed protection work.
2. On 2 June 2024, the Applicant served a completed Form 8 on the Respondent, indicating that the Applicant did not agree to the proposed protection work and setting out detailed reasons in support of its position.
3. On 1 August 2024, the Applicant emailed the Respondent's representative, seeking reimbursement for the expenses incurred in assessing the proposed protection work.
4. On 6 August 2024, the Respondent's representative replied (relevantly):

I have cc the Owner and the Project Management firm as the owner is liable to pay for these expenses.

The Owner is determining how to proceed with the development, so in the mean-time I have ceased work on the project.

Thank you for the update regarding the project and the involvement of the Owner and Project Management firm.

However, I would like to kindly request that the reimbursement for my expenses for accessing your Protection Work be processed as soon as possible.

1. Despite the Applicant making a number of attempts[5] to obtain reimbursement for the costs of assessing the proposed protection work, the Respondent has not reimbursed the Applicant for those costs.
2. It appears[6] that the Respondent has decided not to proceed with the Building Work.
3. On 17 September 2024, the Applicant referred this matter[7] to the Building Appeals Board (BAB) under s 155 of the Act.
4. On 7 October 2024, the BAB gave directions and made orders, including:
   1. By 21 October 2024 the Applicant must file with the Board and send it to the other parties a document titled Points of Claim, which must set out in numbered paragraphs:

(c) the amount claimed and how that amount has been calculated or derived.

1. By 4 November 2024 the Respondent must file with the Board and send to the other parties a document titled Points of Defence, which must:

(a) respond to each of the numbered paragraphs in the Applicant's Points of Claim; and

(b) raise any issue of jurisdiction (if any), by way of defence.

1. By 14 November 2024, parties must file with the Board and send to each other any documents, including copies of any invoices, that have not already been filed with the Board and sent to each other and which the parties intend to rely upon at the hearing.

1. This proceeding is to be determined 'on the papers' on or after 15 November 2024 subject to the Board ordering otherwise or a party requesting an oral hearing to be convened in lieu thereof.

1. On 6 November 2024, the BAB's registry emailed the parties (relevantly):

The respondent has not complied with Order #2, in Directions and Orders dated 7 October 2024.

The Board seeks comments from the respondent on when this will be filed.

If an extension of time is needed to file documents, please indicate the date to which an extension is being sought.

1. On 13 November 2024, the BAB's registry emailed the parties (relevantly):

We refer to our e-mail below dated 6 November 2024.

We note Registry has not received a response from the Respondent.

Can the Respondent please provide a response as soon as possible?

1. On 21 November 2024, (a differently constituted panel of) the BAB conducted a paper hearing.
2. On 19 December 2024, the Respondent's representative emailed the BAB's registry (relevantly):

Are you able to send through the correspondence relating with this matter as we don t have the details of the non compliance orders dated 7 October 2024 and the subsequent actions arising from this

Could you please forward at your earliest convenience, noting that our office is shutting from the 20th of December and back on the 13th of January 2025

Please see attached e-mail sent to all parties on 8 October 2024 which contains directions and orders dated 7 October 2024.

Please see attached non compliance e-mails sent on 6 November and 13 November 2024. The Board did not receive a response to these e-mails.

We attempted to call the Respondent a few times but were unable to get through. It went straight to voicemail, so we left a voice message requesting a call back.

The presiding panel ultimately decided to determine the matter on the papers (as per Order #5 in the attached orders) in the absence of the Respondent not filing a defence.

The determination in the matter is currently pending, and will be circulated to the parties when ready.

1. After the 21 November 2024 paper hearing, and before a determination was made, one of the members of the panel who had conducted that hearing became unavailable and was unable to complete the determination.
2. The BAB's registry informed the parties of the panel member's unavailability and enquired whether the parties consented to the other panel member completing the determination alone.
3. An objection was made to that course, as a consequence of which, we were empanelled to conduct a fresh paper hearing and determine the dispute.
4. We conducted a paper hearing on 28 March 2025.

1. The Applicant has filed invoices from its solicitor, engineer and building surveyor, totalling $7,348.00 (excluding GST), broken down as follows:

TDL Legal (construction lawyer): $484 (initial invoice) + $2,508 (subsequent invoice)

Drew Rudd Engineers (structural concerns assessment): $1,716

Philip Chun Building Compliance (compliance concerns assessment): $2,640

The Applicant respectfully asserts that all expenses incurred in relation to the assessment of both protection work notices were both reasonable, necessary and undertaken in good faith to safeguard the integrity of the Applicant's property.

The owner must pay to the adjoining owner all costs and expenses necessarily incurred by the adjoining owner in assessing proposed protection work and in supervising the carrying out of protection work in respect of the adjoining property and -

(a) agreed between the adjoining owner and the owner; or

(b) in the absence of an agreement, determined by the Building Appeals Board under Part 10.

1. Section 155 (which is in Part 10) of the Act provides:

If an owner and adjoining owner cannot agree in relation to a matter arising under Part 7, and the Building Appeals Board does not have jurisdiction to deal with that matter under any other provision of this Part, either of them may refer the matter to the Building Appeals Board.

1. We note a difference between the provisions of s 97 of the Act and the Applicant's submission.
2. The Act refers to the 'costs and expenses necessarily incurred ... in assessing proposed protection work', and the Applicant refers to 'the assessment of both protection work notices'.[8]
3. Noting this distinction, we now consider whether the amounts claimed are costs of assessing protection work (and whether the amounts are necessarily incurred).

1. The 'memorandum' prepared by Richard Drew of Drew Rudd Engineers (addressed to Tim Landy of TDL Legal):

We have reviewed the structural engineering drawings of Farrar D consulting engineers and the geotechnical report prepared by Intrax.

In our view the structural design available to us is insufficiently developed, and there is insufficient information to reasonably assess the engineering aspects of the proposed excavation and attendant shoring design.

1. We are satisfied that the engineering expenses charged by Drew Rudd Engineers ($1,716.00 plus GST) were wholly related to assessing the proposed protection work and were necessarily incurred.
2. Accordingly, we are satisfied that the Applicant ought to be reimbursed the full amount charged by Drew Rudd, that is, $1,716.00.[9]

1. The 'memo' from Shane Leonard of Phillip Chun to Mr Landy commences:

I have reviewed the documentation provided and I make the following observations and recommendations in regard to the Protection Works Notice.

1. Within the memo, Mr Leonard makes observations about deficiencies in the proposed protection work, however, at least one of those observations does not (in Mr Leonard's own words) relate to the Applicant's land.
2. Furthermore, some of the matters identified by Mr Leonard duplicate findings of the engineer and some of them do not involve an assessment of the proposed protection work, including:

The agreement of protection work does not authorise trespass for the purposes of carrying out building work. Whilst practically the Owner would require access to the airspace of the property at 29 Jessie Street Cremorne, this should be arranged via a civil agreement.[10]

1. Noting that we have not seen the letter of instruction provided to Mr Leonard, in light of the above matters, we do not think that the full amount charged by him was necessarily incurred in assessing the proposed protection work.
2. We consider there to be a need for us to exercise judgement as to what is reasonable in these circumstances.
3. Accordingly, we will order the Respondent to pay two thirds of the amount claimed in respect of the Phillip Chun invoice, that is, $1,760.00.

1. As noted above, the first communication to the Respondent from the Applicant's solicitor focussed on procedural matters (lack of a Form 7 and Form 8).
2. Indeed, the narration accompanying the first line item on the second invoice from TDL Legal is (with added emphasis):

Commence review Protection Works Notice and supporting documents.

1. In those circumstances, we do not accept that the legal fees in the first invoice from TDL Legal reflects costs necessarily incurred in assessing proposed protection work.
2. Accordingly, we will not make any orders regarding the first invoice from TDL Legal.
3. While we have not seen any communication to or from TDL Legal, it appears to us that their main role was to obtain the input of both Drew Rudd and Phillip Chun - two consultants who have the technical expertise to assess proposed protection work.
4. However, TDL Legal have charged $920.00 for:

Commence review Protection Works Notice and supporting documents.

Continuing review of protection works notice/noting reasons for disagreement.

1. This work appears to be either an assessment of the protection work notice (as opposed to an assessment of the proposed protection work) or duplication of the work carried out by the engineer and the building surveyor.
2. Accordingly, we do not think that this amount should be included in the amount to be reimbursed.
3. The remainder of the fees appear to us to be fees that were necessarily incurred in assessing the proposed protection work.
4. Accordingly, we will order the Respondent to reimburse the Applicant $1,588.00 in respect of the legal fees incurred,

1. We consider that amount of $5,064.00 to be costs that were necessarily incurred in assessing proposed protection work and will make orders requiring the Respondent to reimburse that amount to the Applicant.

[1] Clause 17 of Schedule 3 to the Building Act 1993 provides: 'Unless the Building Appeals Board otherwise determines, a party to a proceeding before the Board must bear his, her or its own costs'.

[2] We were not provided with a copy of the building permit.

[3] Curiously, the RBS's name does not appear on the Form 6.

[4] We do not appear to have a copy of these documents.

[5] The Applicant refers to five emails, but we have only seen two.

[6] The Applicant asserts this to be the case. We have not seen any documentation relating to this and conclude that the Applicant may be referring to oral communications.

[7] Lest there be any doubt, we are satisfied that a 'dispute' can arise even where one party is simply not responding to the other.

[9] In the absence of any information to the contrary, we have assumed that the Applicant has claimed, or is able to claim, input tax credits for GST paid to its consultants.

[10] Which we note really amount to legal advice, which we doubt Mr Leonard is qualified to give.