1. The respondent is granted leave to file its Amended Points of Defence dated 22 May 2025 and its Amended Points of Counterclaim dated 22 May 2025. To avoid any misunderstanding, the respondent shall file and serve fresh copies of those documents by 27 June 2025.
2. By 16 July 2025, the applicant must file and serve any Reply to the Amended Points of Defence and Points of Defence to the Amended Points of Counterclaim.
3. By 30 July 2025, each party shall file and serve a List of Documents, listing:

(a) in Part 1 of Schedule 1, all documents in the party's possession, custody or power, relating to the questions in this proceeding;

(b) in Part 2 of Schedule 1, those documents which the party objects to produce for inspection on the ground of privilege, and the basis upon which privilege is claimed; and

(c) in Schedule 2, documents relating to the questions in this proceeding which the party has had, but no longer has, in its possession, custody or power, and as to each such document when it was last in the party's possession, custody or power and the party's belief as to what has become of it_._

A document "relates to the questions in this proceeding" if it is a document on which the party relies; that adversely affect the party's own case; that adversely affect another party's case; or that support another party's case. For the removal of doubt, the communications between the applicant and Mr Guicas resulting in him receiving the reports of Alpine Cost Research, BSS Group and Method Construction Australia relate to the questions in this proceeding.

1. Upon having been given reasonable notice of the wish to inspect, each party shall permit any other party to inspect a document in Part 1 of Schedule 1 of its List of Documents. Each party shall supply a photocopy of any such document on request, with the party requesting the copy paying the photocopying cost.
2. The hearing listed on 17 September 2025 is vacated.
3. Noting that paragraph 3 of the Order made 22 July 2024 stated that a party will not be allowed to present any evidence at the hearing which is not contained in a witness statement without justifying the need to do so to the Tribunal, that paragraph is confirmed and:

(a) any new witness statement which is required by a party obtaining discovery of documents from its opponent including discovery of documents relating to the communications between the applicant and Mr Guicas resulting in him receiving the reports of Alpine Cost Research, BSS Group and Method Construction Australia shall be filed and served by 29 August 2025; and

(b) any new witness statement in reply shall be filed and served by 19 September 2025.

1. Noting that paragraph 6 of the Order made 26 February 2025 required the applicant to file and serve a Tribunal Book of Common Documents, any addition to the contents of the Tribunal Book shall be filed by the applicant and served by 26 September 2025. The added documents must be numbered, with page numbers immediately following those in the original Tribunal Book. The applicant shall also file an updated index, listing the documents in the original Tribunal book and the added documents.
2. The principal registrar is directed to list the proceeding for hearing after 3 October 2025, with an estimated duration of 4 days. The parties will be advised of the new hearing date as soon as practicable.
3. The date by which the parties are to file the summary, chronology and trial running sheet required by paragraph 7 of the Order made 26 February 2025 is extended to 26 September 2025.
4. The date by which the parties are to file and serve outlines of opening submissions, under paragraph 7 of the Order made 26 February 2025 is extended to the date 7 days before the new hearing date.
5. Costs are reserved. A party who seeks costs shall file with the Tribunal and serve on their opponent submissions of no more than 7 pages in length, within 14 days of the date of this Order. The party against whom costs is sought, shall file with the Tribunal and serve on their opponent submissions in reply within 28 days of the date of this Order. The Tribunal will determine the cost application/s on the papers. If either party files a costs submission, the principal registrar is directed to refer the file and the costs submission/s to me on 31 July 2025.

• 1 The respondent seeks leave to amend its Points of Defence and its Counterclaim.[1]

1. The current expression of the applicant's claim is in its Amended Points of Claim dated 10 May 2023. In that document the applicant pleads that it was the proprietor, and the respondent was the builder, under a contract dated 5 April 2019 for the construction of 17 residential apartments for a contract price of $3.3 million.
2. Put in the simplest of terms, the applicant pleaded that there was a Superintendent appointed under the contract who, under clause 37 of the terms of the contract, was to deal with progress claims by the respondent, by issuing a payment schedule which the applicant was obliged to pay. Clause 39 of the terms provided that if the respondent committed a substantial breach of the contract, the applicant could serve a show cause notice, and if the respondent did not show reasonable cause within a time limit, the applicant could take work out of the respondent's hands and suspend payment until it became due and payable. The applicant paraphrased clause 39.6, as saying that when the work which was taken out of the respondent's hands had been completed, the Superintendent was to assess the cost and certify as money due and payable the difference between that cost and the amount which would otherwise have been paid to the respondent if it had completed the work.
3. The applicant alleges that the Superintendent issued a payment schedule pursuant to clause 37, evidencing the Superintendent's opinion that $405,723.46 was due from the respondent to the applicant. When the respondent did not pay, the applicant served a formal demand. The applicant claims $405,723.46 as a debt arising from the Superintendent's certificate, and alternatively as damages arising from the respondent's breach of the obligation under the building contract to pay the certified sum.
4. The first version of the respondent's Points of Defence was dated 22 September 2023. The respondent denied liability. Using a form of drafting which requires the reader to closely observe the text and interpret it, the respondent pleaded the clause 37.2 had particular wording and that the respondent denied that it had breached that clause. Other paragraphs criticised the Amended Points of Claim as being vague and embarrassing.
5. The Tribunal conducted a number of directions hearings. It listed a compulsory conference in the proceeding, which was held on 12 March 2024. The Tribunal did not make an Order for discovery in the traditional style, instead ordering the parties to prepare written witness statements[2] and to file a Tribunal Book of Common Documents. Subsequently the Tribunal extended the time limits for those steps[3] and added an Order that a party "will not be allowed to present any evidence at the hearing which is not contained in a witness statement without justifying the need to do so". Whilst that Order calls for the disclosure of some relevant documents, it does not equate to an order for discovery because it literally only requires a party to disclose documents upon which it intends to rely. It does not require disclosure of documents which support the opponent's case, or harms the party's own case. In my view, that very limited approach to discovery might be suitable in a small claim, but is inappropriate in a dispute over more than $400,000.00.
6. The applicant filed and served witness statements, including the witness statement of Anthony Guicas dated 13 September 2024 (449 pages including attached documents). Mr Guicas was the Superintendent. His witness statement included paragraphs about his issuing of progress certificates /payment schedules numbered 12 and 13 between May and July 2021. At paragraph 17 he said that he was provided with these documents by the applicant: a quantity surveying progress report by Alpine Cost Research; a building inspection report by BSS Group; and quotations from Method Construction Australia Pty Ltd for a scope of works to rectify identified defects in the work performed by the respondent. He also wrote of preparing another progress certificate/ payment schedule, number 14 in November 2021.
7. At paragraph 21 of his witness statement, Mr Guicas wrote that the progress certificate 14 represented his "opinion as to the amounts that were payable between the parties, and that (he) reached (his) assessment on the basis of (his) inspections and on the information/reports supplied in the reports of [Alpine Cost Research, BSS Group and Method Construction Australia] which (he) verified, and which he concluded fairly and accurately describe the state of the works and the costs to rectify defects in the works".
8. The respondent says that these 3 reports were not discovered by the applicant. The first time the respondent became aware of the documents was when it received the witness statement.
9. On considering the witness statement and the 3 reports, the respondent resolved to amend its Points of Defence, to present two analyses:

(a) that the progress certificate /payment schedule prepared by the Superintendent was invalid because the Superintendent did not perform the function required under clause 37.2. That clause (which appeared as Special Condition 43) spoke of the Superintendent "noting the payment [if any] due from the Owner to the Builder" (emphasis added, and words in the [square brackets] were in the original text). The respondent's submission is that the issuing of the progress certificate /payment schedule document does not create a liability or make a sum "due", but merely records a liability which is due under the contract. The respondent alleges that there was no such liability under the contract.

(b) that the Superintendent's receipt of the reports of Alpine Cost Research, BSS Group and Method Construction Australia in private communications with the applicant evidenced a lack of independence, which amounted to a breach by the applicant of its obligation to appoint an independent superintendent.

1. The respondent's proposed Amended Points of Defence and Amended Points of Counterclaim articulated those points.
2. The respondent's counterclaim, procedurally, has a somewhat chequered history.
3. At a directions hearing on 26 April 2023 the applicant was given leave to file and serve Amended Points of Claim by 10 May 2023, and the respondent was required to file and serve Points of Defence by 10 August 2023. This Order does not mention a counterclaim.
4. An Order which was made in Chambers on 13 September 2023, the main subject of which was rescheduling a directions hearing due to the administrative requirements of the Tribunal, extended the date for the Points of Defence to 30 October 2023. This Order does not mention a counterclaim.
5. In an Order made at a directions hearing on 25 September 2023, recitals D and F stated that the respondent had foreshadowed that it wished to file a counterclaim, and that the parties were not seeking Orders regarding expert witness reports.
6. The Points of Counterclaim was filed without leave, in the sense that following on from recital D in the Order of 25 September 2023, paragraph 2 of that Order required the respondent to file any counterclaim by 30 October 2023. It was filed around 17 months late. At the end of the day, the respondent is on strong ground to obtain an extension of time to file a counterclaim because its claim was not statute barred.[4] The substance of the Counterclaim is the respondent seeks the release of a security bond, $151,363.64.
7. The Points of Counterclaim was filed on 11 March 2025, with Amended Points of Defence of the same date. At this time, the respondent did not have leave to amend its Points of Defence. In paragraph 1 of the Points of Counterclaim the respondent repeated the admissions and positive allegations of fact stated in its ('invalid') Amended Points of Defence. It alleged that the applicant had issued two Show Cause Notices and a Take Out Notice; that by wrongfully taking out all of the works from the hands of the respondent the applicant acted in bad faith and breached the contract, on the basis of which the respondent served a valid notice of termination which brought the contract to an end; and that accordingly the applicant was obliged to return the retention sum of $151,363 .64 to the respondent. Alternatively, the respondent claimed that sum on a quantum meruit.
8. The respondent filed and served Amended Points of Counterclaim, without leave, dated 22 May 2025. It is not marked or underlined to show the differences between the document and the original Points of Counterclaim filed on 11 March 2025. The two documents look quite similar.
9. By its Application for Directions Hearing or Orders filed 3 April 2025, which was filed after the case had been listed for hearing on 17 September 2025, the respondent sought "leave for the filing of an amended points of defence" (emphasis added) and it foreshadowed the filing of an affidavit in support. During today's directions hearing it because apparent that the respondent was seeking leave to file the Amended Points of Defence and Amended Points of Counterclaim, and an order for discovery by the applicant of the communications between it and Mr Guicas resulting in him having the reports of Alpine Cost Research, BSS Group and Method Construction Australia when he was preparing progress certificates /payment schedule, numbered 12, 13 and 14.
10. The applicant opposes the respondent's application, making submissions on the effect of clauses 37 and 39 of the terms of the building contract, and on the issues of the respondent's delay in complying with previous timetabling orders of the Tribunal, its delay in bringing this application given that it received Mr Guicas' witness statement in September 2024, and submitting that if the amendments were made the consequential timetabling orders would cause the adjournment of the hearing listed on 17 September 2025.
11. Again to be brief, on the basis of the decision of the Supreme Court of Queensland in Covecorp Constructions Pty Ltd v Indigo Projects Pty Ltd [5] ('Covecorp') I find that the issues sought to be raised by the respondent in its proposed Amended Points of Defence and Amended Points of Counterclaim are arguable, and for that reason that it should be permitted to file and serve those documents.
12. Covecorp Constructions Pty Ltd arose from an application for summary judgment by the plaintiff "relying" on payment certificates issued by a superintendent. Those certificates were to the effect that the plaintiff builder owed the respondent proprietor $261,908.00. The plaintiff pleaded that the certificates were invalid because they were not issued in accordance with the relevant clauses of the General Conditions of the building contract, and that the substance of the deficiency in the certificates was that they reduced the amount payable to the plaintiff by that amount as money said to be due by the plaintiff to the defendant.
13. The contract's clauses in Covecorp are not identical clauses 37 and 39 of the contract between the parties in this VCAT case, but they are sufficiently similar for the analysis by Muir J to be of great assistance. Notably His Honour said:

(a) at paragraph 13, citing and quoting from Wulguru Heights Pty Ltd v Merritt Cairns Constructions Pty Ltd [6], that it is possible for a payment certificate to be challenged even though it is only provisional. The certificate was merely a statement that there was an amount of money due claimed by the proprietor from the plaintiff contractor. The issuing of the certificate did not create the liability. Were this not the case, "by merely asserting a claim for an amount of damages the (proprietor) could avoid the obligation which would otherwise arise ... The 'moneys due' must be more than merely an amount which the (proprietor) asserts the contractor is liable to pay".

(b) at paragraph 16, the alleged overpayment [ ie, leading the superintendent to deduct $261,908.00 ] has no higher status than a claim by the proprietor.[7]

1. Once it is recognised that the superintendent's certificates can be challenged, leave to amend must be granted. The applicant's submissions about delay, and the respondent's failure adequately to explain its delay, are undoubtedly relevant on the question of costs but are not sufficient to result in leave to amend being refused.
2. As to the respondent's application for discovery, I am satisfied that the application has merit because of the amounts in dispute, and of course because once leave is given to amend the Defence the effect of the Superintendent being given the three reports is a relevant issue. In view of the amounts claimed in the claim and the counterclaim, an order for mutual discovery is called for.
3. In the parties' written submissions, both sides sought costs. Indeed the applicant sought costs whether it defeated the respondent's application for leave to amend, or whether that application was granted. Costs do not follow the event in the Tribunal, and Counsel for the parties agreed that a costs application could be made by either party and determined on the papers.

[1] Once again, the combination of the Tribunal's adoption of electronic file records in favour of paper documents; the hearing being held online; the Tribunal's receipt of large numbers of documents electronically minutes before the commencement of an interlocutory hearing which cannot be read until after the hearing; and the Tribunal's long-standing practice of publishing written decisions on Austlii in the interests of transparency results in this Order being accompanied by written reasons despite section 117(1) of the Victorian Civil and Administrative Tribunal Act 1998.

[2] Order 22 July 2024, paragraphs 1 - 3.

[3] Order 26 February 2025, paragraphs 2 - 6.

[4] Eaton v Storer [1882] UKLawRpCh 230; (1882) 22 Ch D 91

[5] [2002] QSC 262.

[6] [1995] QCA 273; [1995] 2 Qd R 521.

[7] Muir J also said, at paragraph 40, but it was incongruent for the builder in that case to rely on a certificate of the superintendent to claim payment from the owner, whilst arguing that the certificate contained an error. I note in passing that it is also clear that Muir J's analysis of the payment certificate regime was not influenced by Covecorp seeking summary judgment. That is, there is no reference in His Honour's judgment to the Court placing a heavy onus on Covecorp because it sought summary judgment, rather than judgment at the conclusion of a contested hearing.