1. The following policy endorsement is contained in the document entitled 'Protection Works Notices'

It is noted and agreed that Section 2. Third Party Liability extends to indemnify the Named Insured for all amounts which the Named Insured becomes legally liable to pay as compensation for:

a) Property Damage to the Adjoining Property as a result of an Occurrence in connection with Protection Work conducted by the Insured during the Construction Period.

b) Personal Injury and Property Damage incurred by occupiers of the Adjoining Property and members of the public as a result of an Occurrence in connection with Protection Works conducted by the Named Insured during the insured Construction Period and for a period of twelve (12) continuous months after the end of the insured Construction Period.

Provided further that our liability under this endorsement will not extend to loss or damage to property which is listed on any heritage, historical or national trust listing unless specifically agreed in writing by Us, prior to the commencement of the Building Work.

No cover is provided under this endorsement unless the owner of the Adjoining Property has:

a) agreed to Protection Work;

b) agreed to the terms and conditions of this endorsement, and

c) provided Protection Work Response Notices prior to the Building Work commencing.

The protection work endorsement includes the following definitions:

Cover provided by this endorsement is limited For the purposes of this endorsement:

"Adjoining Property" means the adjoining property identified in the Protection Work Response Notices made under the Building Act 1993 provided by you to us.

"Building Work" means the building work identified in the Protection Work Response Notices.

"Protection Work" means the protection work specified in the Protection Work Response Notices.

"Protection Work Response Notices" means Form 3 and Form 4 made under regulations 602(2), 602(3), 602(4) and 602(5) of the Building Regulations 2006 (Vic).

This endorsement is subject to the terms, conditions, exclusions and definitions of the policy to which it is attached.

• Aon does not guarantee that the insurance outlined in this Certificate will continue to remain in force for the period referred to as the Policy may be cancelled or altered by either party to the contract, at any time, in accordance with the terms of the Policy and the Insurance Contracts Act 1984 (Cth).
• Aon accepts no responsibility or liability to advise any party who may be relying on this Certificate of such alteration to or cancellation of the Policy.
• Subject to full payment of premium
• This certificate does not:

- represent an insurance contract or confer rights to the recipient;

1. The following clauses are contained in the 2024 Renewal Schedule:

Insured: NEX Building Group Pty Ltd (and others as per quote slip) and/or its/their subsidiary and/or related bodies corporate, as defined in the Corporations Act 2001, (including those acquired or incorporated during the Period of Insurance) for their respective rights and interests.

Policy Wording: Aon/Allianz Annual Construction and Liability Wordings - based on expiring and as agreed.

The list of Endorsements does not include any s 93 Policy endorsement or reference to the endorsement document.

THE SUBMISSIONS OF THE APPLICANT (in summary form)

(a) The insurance policy 99-0007045CMD for the period 31 October 2023 to 31 October 2024 is not a contract of insurance in accordance with s 93 of the Act against damage caused by the protection work, by the Respondent's and/or Interested Party to the Adjoining Property and against liabilities likely to be incurred to adjoining occupiers and members of the public during the carrying out of the building work by the Interested Party.

(b) In particular the Applicant notes the following:

(i) A certificate of currency was provided and there was no reference whatsoever to the protection work or the Adjoining Property.

(ii) The Respondents and Interested Party still proceeded with the protection work despite not providing a copy of the contract of insurance. The Applicant sought a copy of the contract of insurance on multiple occasions.

(iii) The Applicant objected to the Interested Party's insurance policy, partly due to the Interested Party's continual refusal to provide a full copy of the insurance policy including the Schedule and the insurance policy failing to comply with s 93(1)(a) of the Act, mandating that the protection works insurance must be insurance

under which the owner of the damaged property can themselves directly claim, being "first party" indemnity insurance. The Applicant relies on the Court of Appeal decision in Colonial Range Pty Ltd v CES-Queen (Vic) Pty Ltd and another[2].

(iv) Pursuant to an Order of the BAB the Interested Party sent a schedule for year 2, certificate of insurance for year 2, endorsement and Insurance Policy. However, parts of the policy schedule were redacted including 'deductibles' payable in the event of a claim.

(v) The Certificate of Insurance for Year 1 neither expressly nor impliedly covers the Protection Work, nor does it identify any adjoining owners as interested parties. Accordingly, the Certificate of Insurance for Year 1 provides no identifiable cover under which the Applicant could make a claim in respect of any damage to the Applicant's Property caused by the Protection Work during the period 31 October 2023 to 31 October 2024.

(vi) Certificate of Insurance for Year 2 dated 25 March 2025 confirms the Applicant's Property and address together with an endorsement. The limit of construction works is not specified.

(vii) Based on the endorsement contained in the policy schedule (extracted above) neither the Applicant nor Respondents are listed as 'insured' under the policy schedule. The insurer on the policy schedule for year 2 is listed as AFC&S a division of Allianz Insurance Australian Ltd.

(viii) The definition of 'Insured' in the MDA Insurance Policy does not reference the Applicant.

(ix) Existing Property is specifically excluded under the MDS Insurance Policy unless an amount is specified against this item in the schedule. Schedule for Year 2 states no cover beside the existing property. The Adjoining Property would therefore not be covered.

(x) The insured party differs between the MDA Insurance Policy and the certificates of currency. As does the description of cover referenced in the Policy Schedule and terms outlined in the MDA Insurance Policy.

(xi) The Applicant relies on Tran v Santiago [2024] VBAB 130

(xii) The MDA Insurance Policy and Schedule for Year 2 do not contain any protection works endorsements.

(xiii) The endorsement does not identify that it forms part of the MDA Insurance Policy.

(xiv) There is no first party indemnity coverage on which the Applicant could claim directly under the policy if their property is damaged.

(c) The Applicant seeks a contract of insurance which complies with s 93 of the Act prior to completion of protection work and that a fully copy of such insurance is provided to the Applicant.

(d) The Applicant further says that the Respondents failed to provide a copy of the contract of insurance prior to commencing protection work.

THE SUBMISSIONS OF THE RESPONDENT (in summary form)

1. The Respondents have relied on the expertise of the Interested Party who is their builder to take out the appropriate insurance.

THE SUBMISSIONS OF THE INTERESTED PARTY (in summary form)

1. The protection work notice and package of documents included the 2023-2024 policies. At no time prior to signing off on the protection work did the Applicant raise an issue with the policies.
2. The Interested Party provided the following submissions:

(a) The Interested Party provided a copy of the construction insurance and liability policy (99-0007045) in respect of 31 October 2024 to 31 October 2025 (24-25 Policy) which included:

(i) A certificate of currency dated 25 March 2025

(ii) The policy schedule (24-25 Schedule)

(iii) A protection works endorsement (PW Endorsement) and

(iv) Policy wording for the 24-25 Policy.

(b) Protection work is now complete save for the minor works noted in paragraph 2.3.

(c) No provision of the Act requires the agreement contemplated by s 93 of the Act to be in writing or in any particular form. The Interested Party's position is that by signing the protection works notice the Applicant agreed to the 23-24 Policies.

(d) The 2024-2025 Policy clearly provides adequate cover for any losses suffered by the Applicant noting both its scope and coverage limit.

(e) The authorities relied on by the Applicant are distinguishable from the current matter. The Interested Party submits those cases should not apply as:

(i) The cases are distinguishable from the matter at hand, as the risks involved in the relevant protection work are much greater than the construction of a retaining wall approximately 1.7m from a residential dwelling and there are no complex geotechnical or other such engineering or construction risks; and

(ii) The cases extend the meaning of section 93 of the Act beyond what is reasonable and achievable by contractors in the residential building sector or available in the insurance market for residential works such as those the subject matter of this Application.

(iii) If the Applicant's position were to be accepted, in circumstances where the Interested Party submits such a product is not readily available, the cost of coverage would also render any smaller construction project of this nature commercially unviable

(f) No event has occurred which would trigger an insurance claim, and the Applicant has not sought to bring any claim against either the 2023-2024 or 2024-2025 policies.

1. I am tasked with determining the adequacy of the liability cover and concomitant compliance with s 93 of the Act or in other words the 'nature' of cover to be provided under the contract of insurance.
2. The BAB is not seized of jurisdiction in this proceeding to consider any compensation requests arising from protection work, supervision of protection work or any other matter which may be brought under ss 155 and/or 159 of the Act. This is because the proceeding before me is limited to a dispute referred pursuant to s 152 of the Act.
3. A preliminary issue has arisen based on the Interested Party's submissions. In particular, whether the dispute can be brought as the Interested Party contends the Applicant previously consented to the insurance by signing the Form 8. It is appropriate to first determine this preliminary issue.

Preliminary Issue: did the Applicant previously consent to the insurance?

1. The Interested Party has argued that as it included a contract of insurance in the protection works package of documents, that the signing of the Form 8 also meant the Applicant accepted the insurance.
2. The Act regulates the protection work process and includes the following:

(a) Section 84 of the Act provides for the giving of a notice to outline the proposed building work and the proposed protection work as well as any other prescribed information.

(b) Section 85 states that the adjoining owner, not later than 14 days after service of the notice, give to the owner a notice agreeing or disagreeing with the proposed protection work.

(c) Regulation 114 of the Building Regulations 2018 (Regulations) confirms the notice required to be given by the adjoining owner for agreeing, disagreeing or requiring more information in relation to the proposed protection must be in the form of a Form 8.

(d) The prescribed Form 8 contained in Schedule 4 of the Regulations provides the following possible responses for the Applicant:

1. The Act further defines protection work as follows:

(i) underpinning, including the provision of vertical support, lateral support, protection against variation in earth pressures, provision of ground anchors and other support for adjoining property; or

(iii) overhead protection for adjoining property; or

(iv) other work designed to maintain the stability of adjoining property or to protect adjoining property from damage from building work; or

(b) any work or use of equipment necessary for the provision, maintenance and removal of work referred to in paragraph (a) -whether or not the work or equipment is carried out or used on, over, under or in the air space above the land on which the building work is or is to be carried out or the adjoining property.

1. I note the above definition of protection work does not reference any contract of insurance required pursuant to s 93 of the Act. It relates solely to the physical works to be undertaken to protect the adjoining property.
2. There would appear to be no basis to accept that signing agreement to the proposed protection work would also include agreement to the contract of insurance. The requirement to take out a contract of insurance and agreement to it must occur prior to the undertaking of the protection work but this does not mean it is a protection work in and of itself. Accordingly, I do not accept that the signing of an agreement to the physical methods of protection work could equate to automatic consent to the insurance policy. This is particularly where there was no separate express request for the Applicant to review and indicate acceptance of the contract of insurance.
3. I further note that a party providing agreement or consent must generally be aware of what they are providing agreement or consent to.
4. In addition to the above, I note the policy provided within the protection work package of documents is not the current contract of insurance under appeal. The policies were from different years, and it is common for insurers to change the wording of the cover or exclusions contained in those policies.
5. Given the above, I do not accept that signing the Form 8 for proposed protection work was also an agreement to the contract of insurance or the new contract of insurance not seen or reviewed by the Applicant.

1. In order to determine the nature of the insurance, I will consider the following:

(a) The requirement of insurance pursuant to s 93 of the Act;

(b) The scope of cover provided under s 93(1)(a) and (b) of the Act; and

(c) The terms of the contract of insurance and whether it complies with the requirements of s 93 of the Act.

The requirement of insurance pursuant to s 93 of the Act

1. Section 3 of the Act defines adjoining property as:

adjoining property means land (including any street, highway, lane, footway, square, alley and right of way) which is so situated in relation to the site on which building work is to be carried out as to be at risk of significant damage from the building work;

1. Section 93(1) of the Act sets out the following requirements for cover:

(1) Before any protection work is commenced in respect of an adjoining property, an owner must ensure that a contract of insurance is in force, in accordance with this section, against -

(a) damage by the proposed protection work to the adjoining property; and

(b) any liabilities likely to be incurred to adjoining occupiers and members of the public during the carrying out of the building work and for a period of 12 months after that building work is completed.

1. The amount of insurance cover must be sufficient to cover the risks identified in both limbs of section 93(1)(a) and (b) under the policy terms.
2. Under s 93(3) of the Act, the owner must lodge a copy of the contract of with the adjoining owner before the commencing of the protection work.
3. Under s 93(4) and (5) of the Act the owner must arrange for the relevant renewal for a period of 12 months after the completion of building work and lodge a copy of a document evidencing the renewal or extension of the contract of insurance with the adjoining owner.

The scope of cover provided under s 93(1)(a) and (b) of the Act

1. The Supreme Court of Appeal case Colonial Range Pty Ltd v CES Queen (Vic) Pty Ltd [2016] VSCA 328 (CES Queen case) has been referenced by the Applicant and disputed by the Interested Party.
2. The Interested Party disputes the application of the CES Queen case on the basis that it related to a large project and not to the construction of a single residential dwelling.
3. The CES Queen case is primary authority on how s 93 of the Act should be interpreted. The case provided statutory interpretation of s 93 of the Act and the cover which is required to be provided. It further reviewed insurance contract principles, indemnity and the application of policy endorsements. The Supreme Court of Appeal's interpretation of s 93 of the Act and how it applies does not differ due to the nature of the building work being undertaken. This is because the Act does not differentiate between the requirements of small and large construction projects.
4. It should also be noted that the BAB has reviewed numerous contracts of insurance taken out to comply with s 93 of the Act. Whilst the BAB is aware there are sometimes challenges in obtaining the correct insurance (usually by way of policy endorsement), it is not impossible or unusual for this insurance to be obtained.
5. I note the Court in the CES Queen case held that:
   1. The Encyclopaedic Australian Legal Dictionary defines these insurances as follows:

A form of indemnity insurance protecting the insured against loss of or damage to property. Damage to property means disturbance of the physical integrity of the subject property... "Property" has been held to include money: ... It is presumed that an insured, under a contract of property insurance, intends to protect only his or her own interest. The presumption may be rebutted if the insured is under a duty to insure on behalf of others, or if it is shown that the insured's intention was to insure on behalf of others: ...

A form of general insurance providing cover in respect of the insured's liability for loss or damage to another person: ... Under a contract of liability insurance, the insurer has no obligation to indemnify the insured until he or she becomes subject to a liability covered by the policy: ... The liability must be enforceable by law: ....

1. Section 93(1)(a), in terms, requires insurance 'against damage to ... the adjoining property'. The text is most consistent with a requirement to ensure that there is property damage insurance. That would ordinarily mean insurance upon which the owner of the damaged property can itself claim.
2. By contrast, s 93(1)(b) clearly requires liability insurance. The specific obligation in s 93(1)(b) of the Act is for there to be insurance against 'any liabilities'. The party suffering loss cannot claim under this policy (unless specific legislative provisions operating on death or deregistration of the insured apply), but the owner who has incurred the liability to the damaged party can claim on the policy and thereby have funds to meet the claim.

1. We have concluded earlier that the ordinary meaning of s 93(1)(a) is that what is required is insurance upon which the owner of the damaged property can itself claim: what we have termed first party indemnity insurance. This interpretation is consistent with the legislative purpose. The legislative purpose provides no warrant, in this case, for a departure from the ordinary meaning.
2. Based on the text of the Act and the CES Queen case, I consider the correct interpretation of the required cover for section 93(1)(a) relates to damage to the physical integrity of the adjoining property. The adjoining property as defined in the Act includes the entire land comprising of the adjoining property. The definition of land would encompass anything permanently affixed to the land such as buildings, based on the broad definition of land.[3] The cover must provide what the court deemed 'first party indemnity insurance', the Court's reference to this phrase means an insurance policy under which the adjoining owner was able to claim on the insurer either as a named insured or on some other basis. In short they are contemplated in the policy as an insured either by express statement or included by way of reference.
3. Section 93(1)(b) is for any liability likely to be incurred to the occupiers of the adjoining property or members of the public.
4. The CES Queen case suggest that liability cover is a form of general insurance providing cover in respect of the insured's liability for loss or damage to another person.
5. I note the provision of section 93(1)(b) of the Act is consistent with section 11(7) of the Insurance Contracts Act 1984 (Cth) which defines a contract of liability insurance as:

A contract of general insurance that provides insurance cover in respect of the insured's liability for loss or damage caused to a person who is not the insured.

1. I note the definition of liability insurance as taken from the Encyclopaedic Australian Legal Dictionary is:

A form of general insurance providing cover in respect of the insured's liability for loss or damage to another person: (CTH) Insurance Contracts Act 1984 s 11(7). Under a contract of liability insurance, the insurer has no obligation to indemnify the insured until he or she becomes subject to a liability covered by the policy: Distillers Co Bio-Chemicals (Aust) Pty Ltd v Ajax Insurance Co Ltd[1974] HCA 3; (1974) 130 CLR 1; 2 ALR 321. The liability must be enforceable by law: Smit Tak Offshore Services v Youell [1992] 1 Lloyd's Rep 154; (1991) 7 ANZ Ins Cas 61-091.

1. The case of Hronopoulos v Building Appeals Board [2022] VSC 376 provided further clarification of the meaning of s 93(1)(a) and 93(1)(b) of the Act as follows:
   1. In its own language, s 93(1)(a) speaks of the owner's obligation to obtain insurance for 'damage ... to the adjoining property'. The subject matter of the insurance is damage to someone else's adjoining property. The section does not speak of an obligation on the owners to obtain insurance cover for the risk of their liability for doing damage to the adjoining property.
   2. By contrast, s 93(1)(b) is not stated to be concerned with protection works or damage to property. But more importantly and unlike s 93(1)(a), it speaks of the owner's obligation to obtain insurance for 'any liabilities' to adjoining occupiers and members of the public during the carrying out of the building works and for some time thereafter. That is liability insurance. The subject matter of such insurance is the risk of being liable to pay compensation for harm done to persons by the activity of the liable party.
2. In addition to the above, I note the case of You v Thomas [2014] VSC 255 (2 June 2014) (You case). The Court made the following relevant findings:

(a) that the Act allows an Adjoining Owner to be either named in the contract or identified as an insured under s 48 of the Insurance Contracts Act 1984 (Cth) (ICA). A contract in which the Adjoining Owner is not specifically named as an insured will not, for that reason alone, fail to comply with s 93(1)(a). However, an insurance contract upon which the Adjoining Owner was unable to recover would necessarily fail to comply with s 93(1)(a) for it would not indemnify the Adjoining Owner against loss. It was the Court's opinion that s 93(1)(a) requires that the Adjoining Owner be insured under the contract.

(b) to comply with s 93(1) an insurance policy must cover:

(i) damage by the proposed protection work to the adjoining property (s 93(1)(a)). This element of the Act is concerned with protection work; and

(ii) any liabilities likely to be incurred to adjoining occupiers and members of the public during the carrying out of the building work (s 93(1)(b)). This element of the Act is concerned with building work.

(c) as s 93(1)(b) is liability insurance it follows that the adjoining owner is not the insured under the contract since the adjoining owner is the person who may be covered by any liability payable.

1. It should be noted that building work and protection work do have different definitions under s 3 of the Act. However, a method of building may also be a protection work in and of itself due to the lower impact of a construction type on the adjoining property when compared to another.

Do the terms of the contract of insurance comply with s 93 of the Act

1. Generally, a contract of insurance is comprised of the policy terms and the schedule together with any policy endorsement(s) (if listed separate to the schedule). A policy endorsement may be used to either include or exclude cover. This may vary the cover provided under the policy terms.
2. A certificate of currency does not form part of the contract of insurance, it is a document which confirms whether the contract of insurance is still on foot. This is likely why the certificate of currency provided to the BAB clearly states that it cannot be relied on as representing the contract of insurance:

- represent an insurance contract or confer rights to the recipient;

1. Given this, it is important to have regard to the policy terms, policy schedule and the policy endorsement to determine whether the contract of insurance complies with s 93 of the Act.
2. I note the branding of the title page of the insurance policy states:

1. The policy terms reference a 'Schedule' in the contents which, presumably, is the schedule issued under Aon branding and has an Allianz stamp on it. The Policy wording confirms that Allianz is the insurer. Aon is referenced as the insured's broker on page 28 of the policy terms.
2. The Policy Schedule however indicates "Aon/Allianz Annual Construction and Liability Wordings - based on expiring and as agreed'. This is not a precise match to the policy terms provided and there is no 'Aon' branding on the policy terms. Further the policy terms provided are stated as being for Construction Risks - Material Damage and do not reference liability in the title.
3. The Policy Schedule as provided has not come directly from the insurer and is not directly issued by the insurer but rather the insurance broker. It is not uncommon for an insurance broker to issue a copy of the policy schedule and terms, however as Aon is referenced as the Insured's Broker, it is not acting under a commercial binder which means that if there is any alteration to the Policy Schedule by the broker it will not bind the insurer. It should be noted that the Policy Terms refer to the Schedule several times, but not all the information referenced as being in the Schedule can be found in the Policy Schedule (as provided to the BAB). For example, page 30 of the Policy Terms states that the Nominee for Legal Service is stated in the Schedule. A review of the Schedule provides no such information. It is possible only parts of the Schedule have been printed off, in which case the full contract of insurance has not been provided as required under s 93 of the Act.
4. Under the policy terms the insured is defined by the policy as the Named Insured but also includes any parent or subsidiary company of the named insured and any other organisation under the control of the Named Insured and over which it is exercising active management. The Policy Schedule confirms the named insured is Nex Building Group Pty Ltd and states that it includes any subsidiaries or related body corporates. The Interested Party is not expressly named in the policy terms and/or has not provided proof that it is a subsidiary or related body corporate. This may well be the case, but the Interested Party has not confirmed this with documentation despite the Applicant raising issue with the Named Insured.
5. The construction period definition refers to a commencement date of the period of insurance in respect to 'Contracts on Hand' at that date but only if shown as 'Included' in the Insured Operations in the Schedule of this Policy. This suggests that the policy is a master policy to cover all construction work undertaken.
6. An additional issue arises based on the Policy Terms confirming under the section "Endorsements" that the following endorsements will not apply, unless specifically included in the Schedule. This does not include any reference to the protection work endorsement.
7. The Policy Schedule provides a list of endorsements which do not reference the Endorsement document provided to the BAB. It is unclear why this has not been included in the Policy Schedule relied on.
8. The document provided as the policy Endorsement is not entitled as such but rather 'Protection Works Notices'. The document has been provided on Allianz letterhead. There is no statement that it forms part of the contract of insurance and/or the relevant insuring provisions of the policy. This brings into question whether it forms part of the contract of insurance. If it does not, then there is no cover.
9. The document provides a notation that "the endorsement is subject to the terms, conditions, exclusions and definitions of the policy to which it is attached". This should be the policy terms provided, however the document references 'Section 2' and states "Third Party Liability extends to indemnify the Named Insured for all amounts.....". However, schedule 2 in the policy terms provides additional costs and expenses in addition to the limits of liability, it is not providing third party liability in this provision. There is no section 2 in the Policy Schedule. It raises a question as to whether the policy terms provided is the document being referenced in this document or another policy. It raises a larger question of whether the BAB has received the correct policy terms.
10. The proposed insuring clause defines protection work as the protection work and building work as being those specified in the protection work response notices. The protection work response notices references:

Form 3 and Form 4 made under regulations 602(2), 602(3), 602(4) and 602(5) of the Building Regulations 2006 (Vic)

1. This definition is problematic as the Building Regulations 2006 are no longer in force and were revoked by the Building Interim Regulations 2017, approximately 7 years prior to the issuing of the endorsement. The applicable forms and regulations referenced are not applicable to the relevant Form 7 or Form 8 issued under the current Regulations.
2. This also has a flow on effect to the definition of 'Adjoining Property' which is defined as meaning the adjoining property identified in the protection work responses notices made under the Building Act 1993.
3. The Applicant does not have to be specifically named in the Endorsement to obtain the right to claim directly (first party insurance). The policy does have to be worded in a manner to permit the operation of sections 20 and 48 of the ICA. However, the failure to reference the correct forms which identify the adjoining property or to provide a reference to adjoining properties to the construction site do create an issue of compliance with sections 20 and 48 of the ICA.
4. Even if I was to accept that the document is a viable endorsement of the policy, the proposed endorsement covering liabilities appears to be restricted in a manner not compliant with the s 93(1)(b) of the Act.
5. The provision in the protection works notices document states:

"Personal Injury and Property Damage incurred by occupiers of the Adjoining Property and members of the public in connection with Protection Works conducted by the Named Insured during the insured Construction Period and for a period of twelve (12) continuous months after the end of the insured Construction Period."

(b) any liabilities likely to be incurred to adjoining occupiers and members of the public during the carrying out of the building work and for a period of 12 months after that building work is completed.

1. The specific obligation in s 93(1)(b) of the Act is for there to be insurance against 'any liabilities'. As noted above in the CES Queen case, Hronopoulos and You case, the position of s 93(1)(b) differs from s 93(1)(a) in that the party suffering a loss cannot claim under this policy (unless specific legislative provisions operating on death or deregistration of the insured apply), but the owner who has incurred the liability to the damaged party can claim on the policy and thereby have funds to meet the claim. The liabilities cover should also be expressed as being incurred to rather than by adjoining occupiers and members of the public.
2. Further the liabilities for which cover is required is expressed in s 93(1)(b) as arising not from protection work but rather 'the carrying out of building work'.
3. In addition to the issues noted, the referral of this insurance contract to the BAB for review may also cause the Applicant to have no effective insurance due to a requirement in the purported endorsement:

No cover is provided under this endorsement unless the owner of the Adjoining Property has:

(b) Agreed to the terms and conditions of this endorsement.

1. For reasons noted above, the purported endorsement (even if it forms part of the contract of insurance which is in doubt) does not meet both s 93(1)(a) and s 93(1)(b) of the Act.

1. I conclude that the nature of the insurance provided by the Respondents through their agent, the Interested Party, is not sufficient to meet the requirements of s 93 of the Act.
2. I cannot make further orders as requested for compensation because, as noted above, I am only empowered to consider the nature or amount of cover for the insurance.
3. Notwithstanding this, it should be noted that the Interested Party has stated the protection work is completed and there is minor waterproofing and drainage works left. Any new endorsement would likely only assist the prospective works. I note that most insurance policies are not retrospective in application.
4. The Applicant may wish to give consideration as to whether any damage or liability has occurred and/or whether a new policy will assist for prospective cover of any outstanding protection or building work.

[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] [2016] VSCA 328.

[3] See Section 38 Definitions of the Acts Interpretation Act 1984 (Vic) which states the definition of 'land' in all Acts and subordinate instruments (unless the contrary intention appears) includes buildings and other structures permanently affixed to land.