1. The Respondent submitted, in summary:[6]
   1. The BAB appeal process is distinct from a legal proceeding.
   2. Section 149 of the Act sets out the determinations which the Board can make in relation to an appeal and the powers that it has. The provision precludes the Board from making a "determination" as to costs in the present circumstances. The determinations which can be made under s 149(1) in relation to the decisions to issue the Building Notice and Building Order do not include any determinations as to costs.
   3. Subsection 149(4) only allows the Board to make ancillary or incidental orders that would "give effect to its determinations on an appeal" and no determination has been made.
   4. The Board has not made, and cannot now make, a determination in relation to the decisions to issue the Building Notice and Building Order by virtue of the 'decision having been withdrawn'. Once the Building Notice and Building Order were withdrawn, there ceased to be any operative or extant decision for the Board to review. The statutory framework governing the Board's functions does not contemplate ongoing jurisdiction in circumstances where the impugned decisions have been rescinded. The jurisdiction of the Board is dependent upon the existence of a reviewable decision, and where that decision no longer exists, the foundation of the appeal necessarily falls away.
   5. The determinations that may be made by the Board pursuant to s.149 - affirming, quashing, varying or setting aside the decision under review - all presuppose the ongoing existence of a decision capable of being affirmed, quashed, varied or set aside. Once the Notice and Order were withdrawn, there was no longer a decision to which the statutory powers in s.149 could attach. The Board cannot exercise powers in a vacuum and cannot determine an appeal that has "become devoid of subject matter".
   6. The Act does not provide for declaratory relief or advisory opinions in the absence of an extant decision.
   7. The jurisdiction of the Board to award costs is expressly limited by the statutory framework.[7] While the Board has a discretionary power to make costs orders, the default position is that each party bears their own costs.
   8. The reference in clause 16(2) of Schedule 3 to the Act that "a determination may include any order as to costs..." should be read as meaning that an order for costs can only be made in conjunction with or ancillary to a determination. This is further supported by ss 149(1) and (4).
2. The balance of the Respondent's submissions went beyond the scope of this preliminary question on jurisdiction and were directed to whether any order for costs should be made.

1. Section 142 of the Act confers on the Applicant, as the owner of a building or land, a right to appeal to the Board against the Respondent failing within a reasonable time or refusing to cancel the Building Notice and his subsequent making of the Building Order. As with any other statutory right or entitlement, the Applicant was at liberty to exercise or not exercise (i.e. waive) her right of appeal to the Board. Having exercised that right in commencing these appeals, the Applicant is also at liberty, subject to leave of the Board and any other consequential orders including as to costs, to withdraw or discontinue them. As Digby J observed in Colonial Range v CES-Queen:[8]

The Act contemplates that the Applicant owner, like a litigant in a court system can bring its own process to an end when it chooses, subject to possible cost consequences and any order or direction which the Board is empowered to make.

1. Pursuant to s 110 of the Act, the Respondent was entitled to cancel the Building Notice if he considered it appropriate to do so after considering any representations by the Applicant. Similarly, pursuant to s 116, the Respondent was empowered to cancel the Building Order upon a request by the Applicant. The actual circumstances and reasons leading to the Respondent's decision to cancel the Notice and Order are not presently material to this preliminary question.
2. It may be accepted, as the Respondent has submitted, that upon his cancellation of the relevant Building Notice and Building Order, there is no longer any subject matter for the Board to consider or determine, nor any action to be taken pursuant to s149 of the Act. The Board's powers prescribed in s 149(1), namely, to affirm, quash, vary or set aside (and substitute or remit), all refer to, and therefore presuppose the existence of, a "decision under appeal".
3. Curiously, the only "decision" referred to in s 142 is in ss (1)(a): a decision to serve a Building Notice on the owner. None of the other prescribed acts or omissions in respect of Building Notices or Building Orders such as the making of a Building Order or the refusal to amend or cancel one, include reference to any "decision" for the purposes of s 149. It is unclear whether that apparent disconnect was intended by Parliament or is the product of drafting oversight. Notwithstanding, I tend to the view, in the absence of any submissions from the parties on this point, that s 142 should be interpreted, as a matter of necessary implication, such that each of the prescribed acts or omissions must be preceded by some form of decision to perform or refrain from performing them as the case may be. On that basis, s 149 can operate according to its terms. Otherwise, s 149 could not operate to require the Board to consider and determine say an appeal against the making of a Building Order, which is unlikely to have been intended by the legislature.
4. In the absence of any application by the Applicant to amend her appeals to being against the Respondent's more recent decisions to cancel the relevant Building Notice and Building Order, her appeals, as they presently stand, are, in a practical sense, at an end. So much was recognised by Chairperson Riegler on 19 September 2025 when he granted leave to the Applicant to withdraw the appeals, subject to any claims for cost. In circumstances where an owner's interests are no longer affected by a Building Notice or Building Order, save for any debate in relation to costs, withdrawal or discontinuance of the appeal is the obvious and sensible course.
5. For those reasons, I do not accept the Applicant's submission that notwithstanding the cancellation of the subject Building Notice and Building Order, the Board is required to continue on to a hearing to consider and determine her appeals against the Respondent's previous refusal to cancel the Building Notice and to issue the Building Order, or to make any determinations in accordance with s 149 in respect of that previous state of affairs which have since been superseded by the Respondent's decision to cancel both. In my view, the relevant statutory provisions do not indicate an intention by Parliament, upon the cancellation or withdrawal of a Building Notice or Building Order, the subject of an appeal under s 142, which requires the Board to nonetheless proceed to a hearing and determination merely to satisfy s149.
6. That assessment is not inconsistent with the decision of Cameron J in Carson v Turner [9] to effect that the Board 'must consider and determine an appeal'. There, Her Honour was concerned with whether the Board had jurisdiction (or power) to strike out proceedings as an abuse of process. The decision, and Her Honour's consideration of the relevant statutory framework, was not concerned with appeals before the Board, such as the present, in which the subject Building Notice and Building Order have been cancelled during the course of the proceeding prior to any final hearing by the Board.
7. Here, those events have rendered the appeal process "irrelevant and of no utility".[10] To proceed with any such hearing, in the present circumstances, would be a moot exercise and a gross waste of time, money and other resources.
8. In that regard, I am cognizant of the recent decision in Carew v Casey,[11] involving an appeal against a Form 9 determination by a registered building surveyor in respect of protection works. However, during that proceeding, the subsequent owner of the subject land decided not to proceed with the building work which necessitated the protection work order in the first place. In considering the relevant statutory provisions and the decision in Carson v Turner, Member Shaw determined the appeal by quashing the determination because the supervening events did not affect the existence of the determination.[12] By contrast, in the instant case, the subject Building Notice and Building Order no longer exist.
9. Other approaches have been taken to the appropriate disposition of an appeal upon its withdrawal. In her submissions, the Applicant referred to the AAT's decision in Nandacumaran v Victorian Building Authority.[13] There, the Applicant appealed to the Building Appeals Board against the decision of the Building Practitioner's Board to cancel his registration. The applicant subsequently withdrew his appeal. By virtue of s 146(1) of the Act, the cancellation of his registration was held to take effect from the date of the Board's determination of appeal. The Board determined, upon the applicant withdrawing his appeal, to 'dismiss it prior to determining the merits of the matter'.
10. As observed recently in the matter of 1615-1617 Malvern Road, Glen Iris,[14] although there is no express provision within the enabling legislation stating that the Board may regulate its own procedures, there are provisions of the Act which are indicative of that proposition. For instance, cl 15(f) of Schedule 3 requires the Board, in the conduct of a proceeding, to proceed with as little formality and technicality and with as much expedition as the requirements of the Act and the Regulations and the proper consideration of the matter before it permit. In that decision, the Board opined that:

... those implied powers also give the Board jurisdiction to make an order permitting a party to withdraw their proceeding. This is to be distinguished from an order summarily dismissing a proceeding against the opposition of an Applicant.

1. The only apparent basis for the Applicant's resistance to withdrawing the appeals is her concern, heightened by the Respondent's position, that if she does so, the Board may no longer have jurisdiction in relation to costs. For the reasons developed below, that concern is unfounded.
2. Accordingly, I consider that the appropriate disposition of the appeals is to affirm Chairperson Riegler's previous grant of leave to the Applicant to withdraw the appeals and to order that they are discontinued.
3. The question then becomes, in light of that disposition of the appeals, whether the Board has (or retains) jurisdiction to entertain any applications for costs of the proceedings and/or to make any orders in respect of costs. For the reasons which follow, I am firmly of the view that it does.
4. I do not accept the Respondent's submission, to effect, that the Board does not have jurisdiction to make an order for costs unless it first makes a determination in accordance with s 149. Subsection 149(4) does not elucidate on the Board's powers in respect of costs because, in my view, such orders cannot be characterised as "ancillary or incidental", nor can they be said to be "necessary to give effect to" any substantive determination the Board may make pursuant to s 149.
5. Clause 16 of Schedule 3 to the Act is entitled "Determinations and reasons". Subclause (2) provides that a determination may include any order as to costs that the Board, on the application of a party to the proceeding, considers is just. Two observations may be made. First, cl 16 does not contain any delimiting reference to only determinations made pursuant to s 149. Second, it does not expressly preclude orders for costs being (able to be) made in proceedings in which no determination on the merits has been made or, as here, is any longer required.
6. Further, cl 16 is not the sole legislative source of the Board's power to order costs. Clause 17 of Schedule 3 is entitled "Costs", and provides that unless the Board otherwise determines, a party to a proceeding before the Board must bear his, her or its own costs [emphasis added]. In my view, that provision permits the Board to determine questions of costs (where a party or parties seek other than to bear their own) whether or not any determination is made, or required to be made, on the substantive merits of an appeal. Preliminary questions are a perfect example.
7. In Walsh v Singh, the Board opined:[15]

No determination has been made in this proceeding, given that the Building Order was cancelled before the matter could be listed for hearing. Therefore, the application for costs falls to be determined under Clause 17.

1. A similar approach was taken more recently in McDonald v Wales.[16]
2. Even though the subject Building Notice and Building Order, in an operative sense, no longer exist, it does not follow that their cancellation could somehow erase these proceedings from existence. In that regard, the Respondent's submissions, if accepted, would have the effect, as a matter of principle, of potentially denying an Applicant (or other affected or interested party) any scope for costs or other relief in respect of regulatory action taken, regardless of whether that action was validly taken at the time or (at the other end of the spectrum) might have been entirely frivolous or oppressive, simply because during the course of the proceedings, the action was cancelled or withdrawn.
3. The Board's power to order costs is concerned, inter alia, with the circumstances giving rise to the proceedings before it and the parties' conduct of those proceedings. The power is circumscribed by two touchstones. The statutory default position on costs is that each party bears its own. That position may only be displaced if the Board considers that a different order is just. The approach to be taken by the Board, and the considerations relevant in determining costs claims, are well-settled.[17] Suffice to say that circumstances must be established to override the general rule, which means something more than being a successful party.

1. For the foregoing reasons, the Board determines that it has jurisdiction, notwithstanding the Respondent's cancellation of the subject Building Notice and Building Order, to consider and determine any claims for costs of the proceeding.

_______________________ ________________________

Member M Whitten KC Acting Registrar C McBurney

[1] Together with s 177D of the Act and principle 5 of the VBA Code of Conduct for Building Surveyors.

[2] Citing Carson v Turner & Ors [2019] VSC 427 at [62] to [67].

[3] Citing Sugar X Pty Ltd v Maloney [2019] VBAB 47 at [3(d)] and Nandacumaran and Victorian Building Authority [2022] AATA 3150 at [10].

[4] Citing Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 177.

[5] Specifically, orders 4 to 6 concerning any claims for costs.

[6] Written submissions dated 22 and 23 (in reply) October 2025.

[7] Referring to clauses 16(2) and 17 of Schedule 3 to the Act.

[8] (BAB4 - Protection Works) [2017] VSC 317 at [78].

[9] [2019] VSC 427 at [62] to [67].

[10] Colonial Range v CES Queen, ibid, at [85].

[14] [2024] VBAB 128 at [21], [22].

[15] [2018] VBAB 41 at [16], citing Stewart v Building Practitioners Board & Anor [2001] VSC 349, [66-73].

[17] E.g. for recent decisions, see Grist v Owners Corporation 1 [2025] VBAB 37 and Gorey & Anor v Cheng [2025] VBAB 100.