1. By a Protection Work Response Notice dated 25 September 2023, Mr Knight stated that further information and documentation was required (PWRN2).
2. On 20 November 2023, the Respondents responded to PWRN#2 and provided further documentation.
3. On 7 December 2023, Jaz Building Consultants issued a 'Notice of Determination Under Section 87 Of The Act' approving the Respondents proposal for protection work.
4. Pursuant to s 97 of the act, the Applicant provided to the Respondents copies of WAK's invoices for the assessment of PWN#1 and PWN#2 totalling $7,459.35. However, the Respondents failed to reimburse the Applicant.
5. On 17 December 2024, the Applicant filed with the BAB a Notice of Referral pursuant to s 155 of the Act.

(a) the Applicant was required to file with BAB and send to the Respondents her Points of Claim by 23 January 2025;

(b) the Respondents were required to file and serve their Points of Defence by 6 February 2025. Both parties complied with the Directions and Orders; and

(c) the Applicant was required to file her Statement in Reply (if any) by 13 February 2025.

Both parties complied with these Directions and Orders.

1. However, by an email to the BAB dated 25 February 2025, the Second Respondent alleged that -

(a) The Applicant's Statement of Reply raised new issues and introduced factual disputes not fully articulated in her Points of Claim;

(b) Mr Knight's dual role as a consultant engaged to assess the proposed protection work and a member of BAB raised concerns of procedural fairness.

1. The Respondents further requested an oral hearing to allow -

(a) A response to the Applicant's Statement of Reply;

(b) An examination of the legal and technical issues regarding Mr Knight's independence and whether an independent review was necessary; and

(c) Consideration of the rules of natural justice in relation to the perceived conflict of interest and its impact on procedural fairness.

(a) The Respondents were required to file and serve Further Statement of Contentions by 31 March 2025; and

(b) The Applicant was required to file and serve a document in response to the Respondents' Further Statement of Contentions.

1. Section 97 (Expenses of adjoining owner) states -

(1) 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.

(2) The costs and expenses of an adjoining owner which are agreed or determined may be recovered in a court of competent jurisdiction as a debt due to the adjoining owner.

1. Section 155 (Other disputes between owners and adjoining owners) states -

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

1. Building Appeals Board Practice Note 9B - 2023 states -
   1. What is regarded as 'necessarily incurred' will depend on the individual circumstances of each case. The Board will listen to evidence or read written material in order to decide whether the protection work costs were necessarily incurred.

THE SUBMISSIONS OF THE APPLICANT (in summary form)

1. The Applicant submits that pursuant to s 97(1) of the Act she is entitled to reimbursement from the Respondents of the costs she has incurred in having the proposed protection works assessed by Mr Knight.

THE SUBMISSIONS OF THE RESPONDENTS (in summary form)

1. The Respondents submit that to qualify for reimbursement -

(a) the costs incurred must be essential or indispensable to the technical assessment of the protection work; and

(b) the term "necessarily incurred" excludes costs for general advice, pre-litigation matters, duplicated analysis and administrative or procedural tasks that do not contribute directly to the statutory assessment.

1. WAK's review of the initial Form 7 merely duplicated the analysis that the Relevant Building Surveyor (the RBS) was mandated to perform.

His advice, which pre-empted the RBS's eventual rejection of the deficient notice, did not materially alter the outcome of the assessment process.

Having identified deficiencies in the Form 7, the fee of $2,475 is disproportionate.

The additional charges for the second assessment and further review were not necessary for the statutory assessment.

1. In his assessment of PWN2, WAK's commentary largely reiterated issues previously identified and offered no new or necessary technical input.

His advice extended into areas outside the scope of a strictly technical assessment, including design and construction matters which are not recoverable under s97.

WAK's claim that PWRN1 was invalid due to it being dated one day after PWN1 is without foundation.

His contention regarding the use of an outdated PWN conflicts with Mirvac v Building Appeals Board.

Concerns Regarding Competence and Conflict of Interest

1. Their concerns regarding WAK's technical judgement as evidenced by inconsistencies in his assessment of the design documentation.

Given the statutory requirement to avoid the appearance of impropriety under the Public Sector Code of Conduct, WAK's dual role as both the engaged consultant and a member of BAB raises issues of potential conflict of interest.

1. The evidence indicates that both the Applicant and WAK have been motivated by a desire to delay the rebuilding of the house.

WAK's excessive and often incorrect advice outside the statutory confines of a technical assessment, has facilitated a situation whereby the Applicant incurred continual fees under the expectation that these costs are recoverable from the Respondents.

Such conduct frustrates the objective of the Act to affect an efficient and cost-effective assessment of protection work.

1. The costs claimed were not necessarily incurred.

The work performed by WAK exceeded the statutory parameters.

The actions of the Applicant and WAK contributed to an unnecessary delay in the rebuild of the property.

THE APPLICANT'S STATEMENT IN REPLY (in summary form)

1. Other than they must be "costs and expenses necessarily incurred" and be "regarding 'protection work,' the parameters of "assessing proposed protection work" are not defined.

To ensure the protection work is 'appropriate' rather than simply 'adequate,' there would be a duplication or overlap of matters considered by the RBS and by the consultant.

It is appropriate for the consultant to include matters the RBS ought to identify in examining the appropriateness of the proposed protection work.

To suggest any assessment cannot duplicate or overlap the functions of the RBS is to suggest that an independent review does not fall under s97 and that the adjoining owner is not entitled to such a review.

1. The fees necessarily incurred included the review of PWN packages regarding complex proposed protection work due to the nature of the structures and proposed building work, preparation of detailed reports, review of further information, the report regarding further information and the identification of matter that let to the amendment of the Notice of Determination

1. The review identified issues with the documents including the non-inclusion of a Protection Work Response Notice, the failure to include prescribed details, the failure to use a prescribed form and a failure to include prescribed documents.
2. Such observations were correct, and it was left to the RBS to determine if the identified issues rendered the PWN invalid or that the proposed protection work was not appropriate.

1. The Respondents have included the building insurance and the planning permit application in an attempt to demonstrate that my aim was to delay the build and engaged my RBS to achieve this, as stated in paragraph 6 of their Points of Defence. The denies this allegation.

1. The Respondents have failed to show any basis why they should reimburse Applicant the costs and expenses necessarily incurred by her in assessing the proposed protection work.

1. The word "necessarily" signifies that only those costs strictly required for the adjoining owner's assessment and/or supervision of the protection work are recoverable.

Expenses incurred must have been reasonably required to enable the adjoining owner to assess the adequacy of the proposed protection work to protect the adjoining property.

The word 'necessarily' imposes a higher bar than 'reasonableness;' the costs must have been indispensable or unavoidably incurred, not merely convenient or preferred.

s97 is not a blanket entitlement for the adjoining owner to recover every cost related to the project or dispute. The section is aimed at technical evaluation expenses such as obtaining expert engineering advice to review the proposed protection work.

The legal standard imposes a strict filter on the Applicant's claim. Many aspects of WAK's work were procedural or consultative in nature, not strictly necessary for assessing the proposed protection work , and only a portion of the claimed $7,459.35 meets the "necessarily incurred' test.

1. The Act requires the adjoining owner's consultant to demonstrate he/she undertook an independent engineering critique or expert review that was 'necessarily incurred.' Repackaging or duplication does not meet that standard.
2. The table below shows a breakdown between the above distinctions -

Report WAK's Commentary Technical Assessment

1. The Respondents submit that the amounts in the table below reflect the costs necessarily incurred in assessing the proposed protection works -

Report Amount claimed Eligible reimbursement

Conflict of Interest and Natural Justice Concerns

1. As a BAB member, Mr Knight has inside knowledge of what the BAB tends to allow.

He could leverage this knowledge to pad the recoverable portion of his work and segregate the non-recoverable parts as "no charge" or ancillary, which could unfairly advantage the Applicant.

1. There is a risk of a perception that from his position, Mr Knight relied on confidential or no-public insights to benefit the Applicant's case.

His experience on the Board may have led him to include arguments about form validity, service etc. thereby bolstering the Applicant's legal position in ways beyond pure technical and building matters.

The Respondents did not have the benefit of a BAB member in their team, so the overlap of Mr Knight's adjudicative role and advocacy role creates an uneven playing field.

This asymmetry edges into using one's public position for private benefit.

1. The scenario 'BAB member represents private client before own Board' can erode trust.

A fundamental principle of natural legal is that justice must not only be done but be seen to be done.

The rules of natural justice (procedural fairness) include the rule against bias, actual or perceived. Even if Mr Knight had no further input into the Board's determination, the perception is coloured by his status.

Even if BAB's governing rules do not explicitly forbid it, the spirit of impartial justice would caution against a member taking on paid work that then comes for determination by his peers.

1. If driven by his familiarity with worst case scenarios before the BAB, Mr Knight went above and beyond, the Respondents should not have to bear costs that exceeded what was necessary for the Applicant's protection.

It may be appropriate for the Board to record in its reasons that Mr Knight's role was considered, but the determination of costs payable by the Respondents was based solely on the merits under s 97, without influence from his status.

1. The evidence shows that only a portion of Mr Knight's services were necessarily incurred in assessing the proposed protection work estimated at $1,170.00.

APPLICANT'S RESPONSE TO RESPONDENTS' FURTHER STATEMENT OF CONTENTIONS

1. The Applicant submits that the nature of the WAK reports is not a basis for not awarding her the costs she has incurred or that there has been a conflict of interest. The WAK invoices clearly reflect the nature of the work done and did not include costs for natters outside s97.

Assessment of the proposed protection work would include matters that the parties' respective RBS's would consider when assessing a PWN.

In making his Determination the Respondents' RBS accepted the WAK reports resulting in the Application not appealing his Determination.

The Act does not provide that an assessment of proposes protection is limited to a structural assessment and the Respondents' RBS is responsible for that assessment and approval or rejection of the proposed protection work.

The time taken for the assessment and reports detailing Mr Knight's findings is consistent with protection work involving demolition, party walls, propping, boundary footings, boundary wall construction for a second storey and overhead precautions.

Conflict of Interest and Natural Justice Concerns

1. The Respondents have not provided any evidence to support their contention that as a BAB member, Mr Knight is more attuned to the assessment costs the Board would allow.

1. The Respondents have not identified any examples of Mr Knight having used "insider knowledge" in the preparation of his reports.

Undermining Public Confidence and Natural Justice

1. Mr Knight was engaged based on his comprehensive experience in the building industry and his extensive knowledge in protection work matters.

The Respondents' submission that public confidence may have been undermined or natural justice denied is not supported by evidence.

1. The Applicant submits that the assessments completed by Mr Knight fall under s 97, the invoices detail the nature of the work undertaken and the Respondent's RBS adopted the reports.

1. We have considered the parties written and oral submissions. Based on our considerations, we make the following findings.

1. The BAB has previously held that a current member of the BAB is at liberty to assist a client in assessing building and construction documentation and the preparation for a hearing before the BAB but is not permitted to appear at the hearing either on behalf of the client or as a witness.
2. Mr Knight reviewed the protection work documentation served on the Applicant by the Respondents and provided the Applicant with three reports critical of that documentation and the actions of the Respondents' building surveyor.
3. However, we find that the Respondent's building surveyor accepted Mr Knight's third report on which he based his Determination that the revised proposed protection work was appropriate.
4. In any event, the Respondents have failed to provide any evidence that Mr Knight -

a) Structured his invoices with an eye to s 97 recovery; > > b) Used insider knowledge; > > c) His behaviour undermined public confidence or > > d) The spirit of natural justice cautions against a member of the BAB taking on paid work that comes for determination by his peers.

5. Finally, we place on the record that our Determination below is based solely on the merits of the s 97 claim without regard to Mr Knight's role here as consultant to the Applicant and as a member of the BAB.

Assessment of the Costs incurred by the Applicant

1. The nature and complexity of the proposed protection work, particularly around the party walls, adjoining footings, demolition and the like, gave rise to the adjoining owners seeking out an independent technical review to make an informed response. That is exactly what s 97 of the Act contemplates.
2. Mr Knight identified that the PWN1 package was lacking information and had some significant errors and omissions. While the Owner relies on Mirvac Victoria Pty Ltd v Building Appeals Board & Ors[2] (the Mirvac Decision), the adjoining owner appointed a consultant to review the package provided, the Mirvac Decision does not stand for the proposition that the assessment is unnecessary. It doesn't follow that an adjoining owner's expert shouldn't check whether the package satisfies the statutory requirements and supports the RBS's appropriateness determination.
3. The initial assessment by Mr Knight prompted revisions and informed the process, so the expenditure was still necessary, even if some of the errors and omissions could be considered as valid having regard to the Mirvac Decision.
4. Nothing was preventing the owners from reviewing the package before it was sent out to prevent the detailed review of Mr Knight being required.
5. The owners are well informed and many of the costs could have been resolved by putting these efforts into a review at the time.
6. Similarly, the RBS could have reviewed and provided clear direction via a Determination that assisted those preparing the PWN2 and PWN3 packages to ensure that all relevant protection work matters were addressed rather than the adjoining owner having to incur these costs.
7. Save for what is set out below, we conclude and find that the costs were necessarily incurred under s 97 of the Act on the basis that the nature and complexity of the proposed works and protection work warranted the owner seeking an independent technical review for the adjoining owner to make an informed response to the Form 7.

PWN2 Invoice 2 ($3,245) and PWN 3 Invoice 3 ($1,739.35)

1. The invoices reflect expert tasks that were necessary to assess the proposed protection work within the meaning of s 97, namely, reviewing the Form 7 packages, analysing adequacy of proposed measures (including temporary works and sequencing), advising on further information, and reporting.
2. Only costs "necessarily incurred" are recoverable under s 97 of the Act. We accept that a portion of the claimed time addressed form validity and procedural points rather than the technical adequacy of protection work, being propping/sequence/temporary works and the like.
3. We will allow only the proportion that reflects independent technical critique (being the adequacy of proposed propping/sequence/temporary works) as distinct from general design critique, procedural points, or administrative follow ups.
4. The RBS's acceptance of the third report and the subsequent s 87 determination confirm the work had real utility, not mere duplication.

We conclude and find 35% of the costs were necessarily incurred under s 97, being the proportion considered to be the technical review of the proposed protection work; for example, the adequacy of proposed propping/sequence/temporary works) as distinct from general design critique, procedural points, or administrative follow ups.

(a) Neither s 97 nor PN 9B limits 'assessing proposed protection work' to structural calculations. Reasonable examination of forms, content and adequacy of the notices and supporting documents sits within the assessment task, because the RBS must decide 'appropriateness/adequacy' of the protection work on the whole.

(b) The adjoining property owner's consultants should have taken greater care with the preparation of the PWN packages. Additional costs were incurred by the adjoining owner through no fault of their own.

(c) Nothing was preventing the Respondents spending the effort that they have now belatedly taken to review the PWN packages that were served. This would have limited the time spent by Mr Knight and reduced the costs to the adjoining owner.

(d) Duplication with the RBS - Section 97 allows an adjoining owner to obtain an independent assessment. Some overlap with the RBS's role is expected and proper. The test is whether the work was necessary, not whether it was unique. The invoices and reports explain how the work assisted the assessment.

(e) The Applicant's consultant (WAK) reviewed PWN#1 and PWN#2 and identified gaps and risks. The RBS ultimately accepted the third WAK report and issued the s 87 determination approving revised protection work, which shows the expert input was material and useful to the statutory process, not gratuitous.

(f) The WAK accounts show the dominant tasks were technical review, report drafting and follow up on further information. To the extent there are minimal admin entries, they are ancillary to the assessment and very small in context of the overall review.

1. The Respondents will be ordered to pay the Applicant the sum of $4,967.18.

[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] [2024] VSC 782.