1. The Applicants allege that Yarra Valley Water failed to comply with s 151 of the Water Industry Act 1994 (as it existed in 2009) by failing to notify the municipal council that its work would interfere with an asset owned or maintained by the municipal council. In essence, the Applicants allege that work carried out by Yarra Valley Water or its subcontractors or sub-subcontractors interfered with a stormwater drain owned or maintained by the Second Interested Party. The Applicants allege:
   1. Alteration of the Council drain at the Property caused interference to rain water flows from ... Monterey to the Property.

1. ... Monterey's Corner drain pit area inundated for several years.
2. Council contacted the Applicants over the drain in 2013.

1. Alteration of the Council drain caused subsidence in the DSE above and beside the side of HCB dig-out Works in 2009 (and later on 20 September 2011).

1. As a result of 2009 Works to remove and alter the Council drain, the DSE suffered severe subsidence which possibly contributed to sewer failure, and did contribute to YVW explanations of unspecified "subsidence" for such failure.
2. YVW's explanations of "subsidence" causalty would be unconscionable given the role of YVW's Works in causing such subsidence.
3. It is not clear to me what loss has been suffered by the Applicants. Even if the Applicants prove that the Property suffered subsidence, nothing is alleged which draws a causal nexus between that subsidence and any loss suffered by them. For example, it is not alleged that the Applicants expended monies in remedying any such subsidence. Moreover, insofar as the Applicants allege that an asset owned by the responsible authority has been interfered with, that is a matter as between the responsible authority and the entity which caused that interference. I find that the Applicants do not have standing to prosecute a claim for damage caused to an asset owned by the responsible authority.
4. Accordingly, I find that paragraphs 151 to 166 of the pleading do not disclose an arguable claim as against Yarra Valley Water.

Paragraphs 167-170: Events on or around 27 March 2009: On-site Works

1. Paragraphs 167 to 170 recite certain background facts that make no allegation against any of the Respondents, nor do I consider those background facts to have any direct relevance to the claims made against any of the Respondents.

Paragraphs 171-179: Events on or around 28 March 2009: Deceit in Visit & "Inspection" of Works

1. Paragraphs 171 to 179 relate to the backfill of pits or trenches excavated by Yarra Valley Water's subcontractors or sub-subcontractors, when remedial work was carried out in 2009. The Applicants allege that the backfill resulted in a clay pile located in the rear of the Property. They state:
   1. The Applicants suffered loss as a result of the clay pile concealing the IS, leaving it effectively inaccessible and is non-compliant condition hidden.
2. As I understand the allegation, the IS referred to in the above paragraph is the inspection shaft of the House Connection Drain. The allegations do not, however, explain how or what loss was suffered by the Applicants. In my view, if the inspection shaft or inspection opening for the House Connection Drain was covered or damaged, then that is a matter as between the First Interested Party and the entity which caused that situation. I fail to see how the Applicants, as tenants, have standing to prosecute any claim relating to that asset, especially where there is no allegation that this situation has adversely affected their quiet enjoyment of their leasehold interest.
3. Accordingly, I find that paragraphs 175 to 179 of the Further Amended Points of Claim do not disclose an arguable claim as against Yarra Valley Water.

Paragraphs 180-185: Events on or around 29 March 2009: Deceit in Offer of Post-Works CCTV

1. The Applicants allege:
   1. Post-Works CCTV is industry-standard activity for a new or altered sewer.
   2. YVW never arranged for such CCTV for the 2009 HCB Works.
2. The Applicants allege that they suffered loss because of a representation or expectation that a CCTV survey would be undertaken after the remedial works were completed in 2009. They allege that as a result of their reliance on there having been a CCTV survey, they suffered loss by being unable to identify faulty sewer assets as soon as possible.
3. There is no allegation of any representation on the part of any of the Respondents that a CCTV survey would be conducted. Moreover, the pleading does not identify what loss was suffered, in any event. Finally, the allegation relates to work carried out to the assets owned or maintained by Yarra Valley Water. As I have already indicated, the manner in which Yarra Valley Water carries out its remedial work of its own assets is a matter for it. It carries the risk that its work is done properly and in the event that this is not the case, any loss to users of those assets may result in liability. For example, if it fails to remedy problems with its assets, with the result that a user suffers sewage spill causing damage, then it may be liable for that damage. However in the present case, no allegation is raised identifying any causal nexus between the failure to carry out a CCTV survey (if indeed required) and any financial loss suffered by the Applicants.
4. Accordingly, I find that paragraphs 180 to 185 of the Further Amended Points of Claim do not disclose an arguable claim as against Yarra Valley Water.

Paragraphs 186-196: Conduct in the Nature of Conspiracy: 2009 HCB Works

1. The Applicants allege:
   1. Further to allegations disclosing conduct in the nature of trespass and fraud, YVW, Lend Lease and Abidance (the 1st Combination) combined to use unlawful means of trespass both to land and to goods (Combined Means of Trespass) and various means to evade Compliance (Combined Means of Compliance Evasion) in 2009 HCB Works.
2. As I understand the allegations raised by the Applicants, the alleged trespass relates to an encroachment over the southern boundary of the easement when remedial works were undertaken in 2009. As I have already indicated, I do not consider that entering upon the Property in order to perform remedial work constitutes trespass, having regard to ss 123 and 133 of the Water Act 1989.
3. The Applicants allege that they suffered loss and damage as follows:
   1. The Applicant suffered loss and damage from the 1st Combination by:
      1. Becoming accountable for cost of non-compliant Works and expert inspection thereof, as for the post-20 September 2011 HCB-IS; and
      2. Deception and non-disclosure by YVW, Lend Lease and Abidance, such damage was realised as implied liabilities pursuant to ss177C(6) of the Water Industry Act 1994 and s 178 of the Water Act 1989.
4. The allegation set out in paragraph 195 of the pleading fails to draw any causal nexus between the alleged conspiracy and any financial loss suffered by the Applicants as a result thereof. Moreover, I am not persuaded that the Tribunal has jurisdiction to entertain a claim founded upon the tort of conspiracy.
5. Accordingly, I find that paragraphs 186 to 196 of the Further Amended Points of Claim do not disclose an arguable claim as against Yarra Valley Water.

Paragraphs 197-204: Conduct in the Nature of Fraud: Reticulation Sewer (retic) Works 2009

1. The allegations set out under paragraphs 197 to 204 relate to the relining of the main reticulation sewer pipe. As I have already indicated, this is an asset owned or maintained by Yarra Valley Water. In Yarra Valley Water's letter dated 24 February 2009, it stated that this work would be done within 6 to 8 weeks. Yarra Valley Water concede that this work was not done until 2010. Although it is not clear from the pleading, it appears that the Applicants allege that the work was never done.
2. As I have already indicated, whether the work was done in 6 to 8 weeks from 24 February 2009 or 2010 or not at all, of itself, does not give rise to a cause of action, even though that in-action may be the reason why users have suffered loss or damage. In particular, if the main reticulation pipe is defective and no remedial work is done to rectify that problem, then Yarra Valley Water runs the risk of causing sewer spillage. It is the spillage and any consequential damage caused thereby which gives rise to the cause of action against Yarra Valley Water. The fact that Yarra Valley Water failed to carry out remedial work, if proved, is merely evidence pointing to the reason why the spillage occurred.
3. However, the pleading makes no allegation that the Applicant suffered financial loss as a result of any further spillage occurring because of a failure to re-line the main reticulation sewer within the timeframes suggested in the 24 February 2009 letter. All that is said in the pleading is:
   1. As a result of YVW failure to effect relining to mend the retic's structural damage, the Applicant suffered interference to sewage disposal, and to enjoyment of the Property by themselves and their children.
4. No details are provided as to what is meant by the word interference. In the absence of any allegation to the effect that the failure to re-line the main reticulation pipe caused a sewage spill - which then led to loss or damage being suffered by the Applicants, the pleading is meaningless.
5. Accordingly, I find that paragraphs 197 to 204 of the pleading do not disclose an arguable claim as against Yarra Valley Water.

Paragraphs 205-212: Conduct in the Nature of Conspiracy: 2009 retic Works

1. Paragraphs 205 to 212 of the pleading alleges that as a result of Yarra Valley Water failing to re-line the main reticulation pipe within the 6 to 8 weeks stated in the 24 February 2009 letter, it committed a fraud and it conspired with Lend Lease in effecting that fraud.
2. For the reasons that I have already outlined above, this aspect of the pleading fails to disclose a justiciable cause of action as against either Yarra Valley Water or the other Respondents. There is no allegation of any reliance placed on the alleged misrepresentation, nor is there any allegation making a causal nexus between the alleged misrepresentation and any loss or damage suffered by the Applicants.
3. Accordingly, I find that paragraphs 205 to 212 of the pleading do not disclose an arguable claim as against Yarra Valley Water.

1. Paragraphs 213 to 226 recount various factual events - primarily concerning notification or attempts to notify Yarra Valley Water.

There are, however, some allegations concerning the effects of sewer spillage:

1. In or around July 2009, the Applicants detected intermittently sewage odours carried by wind at the front of the house in the evenings.

1. From around this period the house's landline phone started to become very unreliable to the extent that the Applicant is resorted to pre-paid mobile phone and even the shopping centres' public phone.
2. A landline socket in the bedroom next to the bathroom was later found to have extreme oxidisation and crystallisation from long exposure to moisture...

1. From around this time also the Applicants' rear-left bedroom attracted severe mold [sic] on the walls, compelling intensive weekly and sometimes daily cleaning.

Particulars

The mold [sic] was a result of constant spill at the westernmost (bathroom) gully trap under the balcony.

1. Although the above paragraphs allege that the Applicant's quiet enjoyment of their leasehold interest has been adversely affected by sewage spills, it is not alleged that the spill is tied to any act or omission on the part of the Respondents.
2. Accordingly, I find that paragraphs 213 to 226 of the pleading do not disclose an arguable claim as against Yarra Valley Water.

Paragraphs 227-232: Events: Early Spring 2009 External Sewage Spills

1. The Applicants allege that in or around September 2009, the Second Applicant found a sewage spill at the house's northeast gully trap.
2. These paragraphs of the pleading do not suggest that any of the Respondents are responsible for that sewage spill; nor do those paragraphs raise any other allegation against the Respondents.
3. Accordingly, I find that paragraphs 227 to 232 of the pleading do not disclose an arguable claim as against Yarra Valley Water.

Paragraph 233-247: Conduct in the Nature of Deceit: External Sewage Spill, 14 November 2009

1. The Applicants allege that on 14 November 2009, they discovered another external sewage spill. They further allege that Yarra Valley Water advised them that the sewage spill stemmed from a blockage in the pipework belonging to the Property, rather than from any problem in the assets owned or maintained by Yarra Valley Water:
   1. YVW document Sewer Blockages states that crew will "provide your [sic] with options for clearing the blockage in your pipes. These options include you engaging your own plumber or we can clear it for you for a fee".

Particulars

An historical AMS entry for the Property from 13 June 2000 sites a quote of $140 for clearance action by contractor Barry Bros.

1. YVW never gave the Applicants an option for clearing the sewer for a fee.
2. In the premises YVW and Lend Lease knew or should have known as false its assertions on "internal stoppage", and advice to call a plumber.
3. The Applicants relied on the assertions and advice as representing an individual's mistake or apathy and not a clear refusal by the Licensee to meet its obligations.
4. As a result of the deceit the Applicant suffered loss by continued recourse to public toilets, laundromats and an Internet cafe, with associated expenses.
5. It is unclear to me how a blockage in the sewer pipes belonging to the Property give rise to a cause of action as against any of the Respondents. There simply is no causal nexus between the factual allegation that there was a blockage in the sewerage pipes belonging to the Property and any act or omission on the part of all Yarra Valley Water or its subcontractors or sub-subcontractors. Nowhere in paragraphs 233 to 247 is it alleged, for example, that any of the Respondents are responsible for the blockage.
6. Accordingly, I find that paragraphs 227 to 247 of the pleading do not disclose an arguable claim as against Yarra Valley Water.

Paragraphs 248-252: Events: Further Contact with YVW, Continued Spill

1. The Applicants allege that in January 2010, the First Applicant phoned Yarra Valley water to seek help with the external sewage spill. They allege:
   1. YVW told the First Applicant that they refused to send someone unless the Applicant's first cited as referee a registered plumber's license number.
   2. In the premises,YVW's refusal was unconscionable.
   3. The Applicants' loss continued by recourse to public toilets, laundromats and an internet cafe and the associate loss in time, travel and expense.
2. For the reasons which I have already set out above, without establishing any causal connection between a malfunction in an asset owned or maintained by Yarra Valley Water to any loss or damage suffered by the Owner, the allegation that Yarra Valley Water refused to send someone to investigate the cause of a sewage spill does not give rise to a cause of action.
3. Consequently, I find that paragraphs 248 to 252 of the pleading do not disclose an arguable claim as against Yarra Valley Water.

Paragraphs 253-270: Events: Further Contact with Corpella, Continued Spill

1. Paragraphs 253 to 270 recount certain events surrounding the sewage spill in 2009-2010. The Applicants allege that Yarra Valley Water eventually sent someone to investigate:
   1. YVW sent the same man as before, who found the IS buried and its cover ajar.
   2. The man sent performed by:

1. telling the First Applicant to leave the IS cover lid ajar; 2. rodding the entire HCD and beyond with several cable;

1. checking the IS to find a narrow muddy seepage;

1. staying silent again on the First Applicants query on the Call to Return.
2. That allegations set out in paragraphs 253 to 270 do not raise any allegation as against any of the Respondents. Indeed, paragraph 269 concedes that Yarra Valley Water attended the Property and undertook work, even though the work related to the sewerage belonging to the Property, rather than its own asset.
3. Accordingly, I find that paragraphs 253 to 270 of the pleading do not disclose an arguable claim as against Yarra Valley Water.

Paragraphs 271-278: Deceit: YVW Notice of Inspection Visit 2010

1. The Applicants allege that by letter dated 19 July 2010, Yarra Valley Water stated that it would determine a solution to prevent sewer blockages:
   1. Based on YVW's conduct in events for more than a year later, the letter's assertion about determining a solution was clearly a falsehood.
   2. In the premises the letter of request was misleading and unconscionable because YVW, not the Applicants, bore responsibility for YVW's Works.

1. The Applicants were confused by the letter's request and vagueness about Works, and worried intensely that the letter portended more trouble, but they relied on the letter's assertion that YVW was deferring decision and responsibility.
2. The Applicants relied on the assertions and began accepting as normal the dysfunctional sewer, as loss continued.
3. The allegations set out under paragraphs 271 to 278 are difficult to reconcile with the pleading as a whole. In particular, it is not alleged that the asset owned and managed by Yarra Valley Water is currently defective or that there are continual sewer spillages of more recent time. That being the case, I fail to understand how any representation that Yarra Valley Water would determine a solution can give rise to damages. The pleading simply did not make that allegation clear.
4. Moreover, according to Mr Stuckey, the letter dated 19 July 2010 stated precisely the opposite to what the Applicants allege; namely, that Yarra Valley Water would undertake work. Indeed, it is common ground that that is precisely what occurred in 2011.
5. Consequently, I find that paragraphs 271 to 278 of the pleading do not disclose an arguable claim as against Yarra Valley Water.

Paragraphs 279-301: Deceit YVW Visit, CCTV & Turbojet September 2010

1. In paragraphs 279 to 301 of the pleading, the Applicants raise various allegations that contractors engaged by one of the Respondents (it is not clear which of the Respondents engaged the contractors) made certain representations concerning the House Connection Drain, to the effect that its condition was in a devastated, irrepairable condition, with collapsed pipes and tree roots near the house, near the corner and in between.
2. The Applicants allege that the representation was false. They further allege:
   1. In all of the false assertions during the September 2010 period, YVW and Lend Lease knew they were making false positive assertions but did so intending to permit ongoing damage to the Property's sewer assets.
   2. The Applicants relied on the false assertions as being borne of abuse of authority but accepted the warnings without expense to themselves alternatively Corpella, and resigned themselves to YVW's unwillingness to resolve the problem in an area of their exclusive charge.
   3. The Applicants continue to incur a loss as a result of YVW's and Lend Lease's conduct, through now with added loss from exertion to investigate and solve the problems themselves.
3. The allegations referred to in paragraphs 279 to 301 of the pleading are difficult to understand. On one hand, it is alleged that Yarra Valley Water and Lend Lease represented that there were problems with the sewer within the Property (rather than the assets owned or maintained by Yarra Valley Water). However, it is not alleged that this state of affairs is incorrect. Indeed, the narrative set out in the allegations exemplifies a problem within the Property's sewer. The bold assertion that the representations were false is unsupported with any allegation that the Property's sewerage is in a serviceable condition.
4. Moreover, nothing is alleged to show a causal nexus between the damaged sewerage and any particular loss suffered by the Applicants. In fact, no actual loss is pleaded in reliance upon the alleged representation.
5. Consequently, I find that paragraphs 279 to 301 of the pleading do not disclose an arguable claim as against Yarra Valley Water.

Paragraphs 302-311: Failure to Protect Sewers: Condition of OB in CCTV 2010

1. In paragraphs 302 to 311, the Applicants allege that Yarra Valley Water and Lend Lease failed to protect the reticulation sewer pipe and associated fittings, as they were obliged to do under s 93 of the Water Industry Act 1994 and s 178 of the Water Act 1989.
2. Even if it can be established that either or both of Yarra Valley Water and Lend Lease failed to carry out their statutory functions, with the result that the reticulation sewer pipe and associated fittings were either not maintained or fell into disrepair, no allegations are made as to what loss was suffered by the Applicants as a consequence thereof.
3. Further, as I have previously observed, the mere fact that assets owned or maintained by Yarra Valley Water fall into disrepair does not, of itself, give rise to a cause of action. Something needs to happen as a consequence of that circumstance, which ultimately leads to a loss suffered by the Applicants. Without establishing any loss occasioned by reason of the alleged misconduct on the part of Yarra Valley Water or Lend Lease, no cause of action arises.
4. Consequently, I find that paragraphs 302 to 311 of the pleading do not disclose an arguable claim as against Yarra Valley Water.

Paragraphs 312-320: Events: Ongoing Spill, Dead Sewer

1. Paragraphs 312 to 320 of the pleading recount events relating to the work that was done to the Property's sewer from October 2010 to the middle of 2011. This entailed replacing some of the vitreous clay sewer pipe and unblocking sections of that sewer.
2. The Applicants allege that the House Connection Drain was filled with some obstruction, comprising an accumulation of black septic sewage. However, no allegation is made that the blockage arises because of any act or omission on the part of the Respondents. Moreover, nothing is alleged to indicate that the Applicants have suffered any loss and damage as a result of the blockage.
3. Consequently, I find that paragraphs 312 to 320 of the pleading do not disclose an arguable claim as against Yarra Valley Water.

Paragraphs 321-326: YVW Visit 21 August 2011: Still Refusal of responsibility

1. Paragraphs 321 to 326 of the pleading sets out various actions taken by the First Applicant. No allegations are raised against any of the Respondents.
2. Consequently, I find that paragraphs 321 to 326 of the pleading do not disclose an arguable claim as against Yarra Valley Water.

Paragraphs 327-329: Events: Defective HCB-OB, Emergency Dig-Out

1. Paragraphs 327 to 329 allege that Yarra Valley Water made certain admissions regarding the condition of the House Connection Branch. However, no allegations are raised against any Respondents in those paragraphs.
2. Consequently, I find that paragraphs 327 to 329 of the pleading do not disclose an arguable claim as against Yarra Valley Water.

Paragraph 330-336: 2011 Conduct in the Nature of Conspiracy

1. Paragraphs 330 to 336 of the pleading again raise the issue of trespass and a conspiracy to injure. On this occasion, the allegations are raised in the context of remedial work undertaken in 2011. For the reasons which I have already articulated above, I do not consider that undertaking remedial work to the assets owned or managed by Yarra Valley Water constitute an actionable trespass, even in circumstances where work encroaches beyond the boundary of the easement onto the Property.
2. In any event, the allegations as to any loss or damage suffered do not provide adequate detail to enable me to be satisfied that there is any causal connection between the alleged acts and the alleged loss:
   1. By such combinations of trespass and Compliance evasion, and with such intent to damage, the 4th Combination carried out the acts thereof.
   2. The Applicant suffered loss from the 4th Combination's means, where:
      1. the Applicants became accountable for the cost of non-compliant Works, including expert inspection thereof, is clear from the later post-20 September 2011 non-compliant HCD-IS;
      2. as a result of the 4th Combination's deception and non-disclosure, and further to that previously in the premises and also involving Abidance, such damage was realised as implied liabilities pursuant to ss 177C (6) of the Water Industry Act 1994 and s 138 and s 178 of the Water Act 1989.
3. The Applicants allege that they became accountable for the cost of non-compliant work. However, the work referred to in paragraphs 330 to 336 relates to work carried out to the assets owned or maintained by Yarra Valley Water. No allegation is made as to any actual loss suffered by the Applicants.
4. Consequently, I find that paragraphs 330 to 336 of the pleading do not disclose an arguable claim as against Yarra Valley Water.

Paragraphs 337-339: Conduct in the Nature of Breach of Contract

1. The Applicants allege that Yarra Valley Water had duties to the Applicants in a Customer Service Code of the Essential Services Commission. They further allege that Yarra Valley Water failed to honour its Guaranteed Service Level [which caused a] profound breach of the trust expected between the Applicants and Licensee.
2. The Applicants do not allege that they suffered any loss as a result of the alleged breach of trust. Moreover, it is unclear on what legal basis such a claim is made or whether the Tribunal has jurisdiction to deal with a claim couched in those terms.
3. In my view, paragraphs 337 to 339 of the Further Amended Points of Claim do not disclose an arguable claim as against Yarra Valley Water and I so find.

1. Paragraphs 340 to 343 of the pleading purport to set out the Applicants' Prayer for Relief. In particular, allegations are made that by reason of the matters referred to in the pleading, Yarra Valley Water are liable to the Applicants under s 74 of the Water Industry Act 1994 and the Water Act 1989.
2. Section 74 of the Water Industry Act 1994 has been repealed and it is unclear whether any of the alleged flows occurred during the period when that section was operative. In any event, relief is also sought under the Water Act 1989.
3. However, as I have already indicated, the pleading suffers from significant defects in failing to establish any causal connection between any act or omission on the part of Yarra Valley Water and the loss or damage suffered by the Applicants.
4. Having regard to the fact that the Applicants are not legally trained and embracing a generous interpretation of the pleading, I assume that the pleading relies, in part, on s 16 or s 157 of the Water Act 1989 to establish a cause of action justiciable in the Tribunal. However, fundamental to an action under either s 16 or s 157 of the Water Act 1989, is a requirement to establish a causal connection between the unreasonable flow of water or interference with a reasonable flow of water (in the case of an action under s 16) or flow of water as a result of intentional or negligent conduct on the part of the water authority (in the case of an action under s 157) and the injury or damage suffered by the claimant.
5. In the present case, the pleading is plagued with largely unsubstantiated allegations of deceit, conspiracy and trespass, which appear to be the cornerstone of the alleged loss or injury suffered by the Applicants. This is not a case where it is alleged that a person's property or goods have been damaged by reason of an unreasonable flow of water or because of a flow of water resulting from intentional or negligent conduct on the part of a water authority.
6. Here, the particulars of loss and damage, which are set out under paragraph 355 of the pleading, claim rental costs, cleaning costs, and other associated costs but do not tie those costs to any act or omission on the part of the Respondents. Although the pleading concedes that there were problems with the Property's own sewerage system, nothing is said how any costs associated with that fall at the feet of the Respondents. In particular, there is no clear allegation to the effect that a sewage spill was caused as a result of a blockage in the assets owned or maintained by Yarra Valley Water and which then led to the Applicants suffering loss or damage.

1. Mr Tesarsch of counsel appeared on behalf of Abidance. He adopted the submissions made by Mr Stuckey. He further added that the pleading and the affidavits filed in behalf of the Applicants, miss a fundamental point; namely, they do not disclose a cause of action against Abidance.
2. Mr Tesarsch submitted that there is no allegation of negligence against Abidance and no allegation that it did anything wrong. He argued that Abidance was two steps removed from the relationship between Yarra Valley Water and the Applicants. In particular, Abidance was a subcontractor of Lend Lease, who was contracted by Yarra Valley Water.
3. Mr Tesarsch submitted that the pleading was so defective that it could not be cured by amendment. He further argued that the voluminous affidavit material filed by the Applicants further confused the situation and, on any view, it was impossible to identify a cause of action from reading that material. According to Mr Tesarsch, the claims made by the Applicants, as set out in their Prayer for Relief, ought to be directed at the First Interested Party, pursuant to ss 68 and 72 of the Residential Tenancies Act 1997.
4. I accept the submissions made by Mr Tesarsch. In my view, nothing in the pleading establishes a cause of action justiciable by the Tribunal as against Abidance. Further, I am unable to distil any cause of action from the affidavit material filed by the Applicants which may provide some lifeline to cure defects in the pleading. In my view, the claim as against Abidance should be dismissed.

CLAIM AGAINST THE THIRD RESPONDENT (LEND LEASE)

1. Mr Jones of counsel appeared on behalf of Lend Lease. Like Mr Tesarsch, he adopted the submissions made by Mr Stuckey. Mr Jones submitted that apart from paragraph 137 of the pleading, the remainder of the pleading only raised allegations against Lend Lease which were couched in terms of a conspiracy to injure or alternatively trespass.
2. He submitted that the Tribunal does not have jurisdiction to hear and determine a claim couched in terms of trespass or the tort of conspiracy. Mr Jones referred me to extracts of Pizer's Annotated VCAT Act (5th Edition) where the learned authors state:

The VCAT is a creature of statute and its jurisdiction "derives entirely from statute": Director of Housing v Sudi [2011] VSCA 266; (2011) 33 VR 559; [2011] the SCA 266 at [19] per Warren CJ. Thus, it has been said that:

• The VCAT's jurisdiction, "extensive though it is, is precisely defined in the various enabling enactments": Roads Corporation v Maclaw No 469 Pty Ltd (2001) 19 VAR 169; [2001] VSC 435 at [19] ...

As a creature of statute the VCAT has no inherent jurisdiction: R v Perkins [2002] VSCA 132 at [16]; ...

1. I respectfully accept the commentary set out by the learned authors in Pizer's Annotated VCAT Act. Insofar as the Applicants claim against the Second, Third or Fourth Respondents, the enabling legislation is the Water Act 1989, as there being no direct contract or service provided between those entities and the Applicants. The relevant provision of that Act; namely s 16, specifically defines the ambit of any enquiry to loss or damage caused either by an unreasonable flow of water or interference with a reasonable flow of water. Causes of action based on the tort of conspiracy or trespass do not, in my view, fall within the purview of s 16 of the Water Act 1989.
2. It appears that Mr Jones concedes that paragraphs 137 to 139 of the pleading, implicitly allege that remedial work performed in 2009 adversely impacted on the Property's House Connection Drain, leading to the Applicants suffering continual loss from sewerage and sewage disposal services failure.
3. Even if that allegation can be understood from a plain reading of the pleading, nothing is alleged to draw a causal link between such an allegation and any actual loss suffered by the Applicants. In particular, if the House Connection Drain was damaged as a result of work carried out by one or more of the Respondents, nothing is pleaded to link that damage to any loss suffered by the Applicants. The Applicants are tenants of the Property and have no reversionary interest in the sewer assets belonging to the Property. If those assets are damaged, then the cost to make good those assets is a loss incurred by the First Interested Party.
4. However, the mere fact that Property assets are damaged does not mean that a cause of action arises between the Applicants and the entity responsible for causing that damage. More needs to be shown, linking that damage to the Applicants' loss. On my reading of the pleading, I am unable to identify that link. For that reason, I am of the opinion that there is no arguable case raised against Lend Lease and the claim against it should be dismissed.

1. Mr Thomas, of counsel, appeared on behalf on the Fourth Respondent (Do All Drainage). Like Mr Tesarsch and Jones, he adopted the submissions made by counsel for the other Respondents. Mr Thomas noted that only 13 paragraphs make reference to Do All Drainage. Those paragraphs relate to allegations of conspiracy. For the reasons which I have already outlined above, I am of the opinion that the Applicants' claim against Do All Dainage, grounded under the tort of conspiracy or trespass is not arguable, at least in the Tribunal.
2. The involvement of Do All Drainage, like Lend Lease and Abidance is one or more steps removed from any direct relationship with the Applicants. Those entities did not provide any direct service to the Applicants, nor enter into any contractual relationship with them. Moreover, no allegation is raised against Do All Drainage under the Water Act 1989. In my view, the claim against Do All Drainage is not open and arguable and should be dismissed.

1. The Applicants have filed written closing submissions in reply, to supplement their oral submissions made during the hearing and their affidavits filed prior to the hearing. Taking the Applicants' oral submissions and all material filed by them into consideration, I am unable to identify further facts or points of law which would cure the defects so patently obvious in the pleading.
2. At its best, the pleading together with all material filed on behalf of the Applicants alleges that one or more of the Respondents carried out remedial work which encroached upon the Property, thereby creating a trespass. The pleading alleges that, for some unknown reason, one or more of the Respondents had conspired to deceive and injure the Applicants, although it is not clear what injury was suffered as a result of that alleged conspiracy. Those facts and circumstances do not give rise to an arguable claim as against any of the Respondents.
3. The only allegation which might raise the potential for a cause of action against Yarra Valley Water concerns the implicit suggestion that the sewerage system of the Property was damaged by remedial work carried out by Yarra Valley Water through its contractors or the subcontractors of those contractors. However, as I have already indicated, the allegation (if made) stops short of alleging that this factual circumstance resulted in an unreasonable flow of water or an interference with a reasonable flow of water, giving rise to injury, loss or damage suffered by the Applicants. In the absence of a pleading setting out the factual and legal basis of this circumstance, the pleading does not disclose an arguable case against Yarra Valley Water or any of the other Respondents.
4. Notwithstanding that the Applicants have filed voluminous affidavit material, made three attempts at formulating points of claim, made oral submissions; and were given leave to file closing written submissions, no further material has been advanced to persuade me that the pleading is capable of being cured. For that reason, I find that the claims made against the Respondents are misconceived or lacking in substance, justifying an order under s 75 of the Victorian Civil and Administrative Tribunal Act 1998 summarily dismissing those claims. In making that order, I am mindful that it is a serious matter for the Tribunal, in an interlocutory proceeding, to deprive a litigant of the chance to have their claim heard in the ordinary course. However, I am persuaded that the claims made against the Respondents are so obviously unsustainable in fact or law and are bound to fail.

[1] [2000] VCAT 821.

[2] [1983] HCA 25; (1983) 154 CLR 87 at [99].

[3] [2010] VCAT 1125.

[4] Fancourt v Mercantile Credits Pty Ltd [1983] HCA 25; (1983) 154 CLR 87 at 99; Lay v Alliswell Pty Ltd (2001) VSC 385 at paragraph 14; State Electricity Commission of Victoria v Rabel [1998] 1 VR 102, and Forrester v AIMS Corporation [2004] VSC 506.

[6] Taitapanui v HIA Insurances Services Pty Ltd [2002] VCAT at paragraph 8.

[7] Burke v Victoria [2002] VCAT 1397 at paragraph 3.

[8] Arrow International Australia Pty Ltd v Indevelco Pty Ltd [2005] VCAT 306.

[9] Zaparenko v Perpetual Trustees Victoria Ltd [2006] VCAT 2147 at paragraph 11.

[10] Klona v Cummins Engine Co Pty Ltd [2002] VCAT 733.

[11] State Electricity Commission of Victoria v Rabel [1998] 1 VR 102,

[12] Barbon v West Homes Australia Pty Ltd [2001] VSC 405 at paragraph 16-17.

[13] [2001] VCAT 406 at paragraph 11.

[14] [2001] VSC 405.

[15] Paragraph 4 of the Applicants' Further Amended Points of Claim.

[16] Paragraph 5 of the Applicants' Further Amended Points of Claim.

[17] Paragraph 6 of the Applicants' Further Amended Points of Claim.

[18] Letter from Yarra Valley Water addressed to the Applicants dated 24 February 2009.