APPLICANTS James Holman and Raelene Sambrook (Subject Land owners)

RESPONDENTS Ross Calia, Vincenzo Calia and Carmel Calia (Adjoining Property owners)

SUBJECT LAND 623 Brunswick Street, Fitzroy North

ADJOINING PROPERTY 621 Brunswick Street, Fitzroy North

BEFORE Members P Chau (Chairperson), M Otteren and P Irwin

CITATION Holman & Anor v Calia & Anor [2025] VBAB 119

Having considered all the submissions and information placed before it, the Building Appeals Board (the BAB) determines that:

1. By 30 December 2025, the Applicants are to carry out the following works at their own cost:

(a) Have a licensed plumber replace the existing in ground earthenware stormwater line at the south east corner of the Subject Land with a new PVC service.

(b) Have a licensed plumber check and ensure the integrity and water tightness of the stormwater plumbing at the east end of the Subject Land. This is to include, roof gutters, downpipes, air conditioning condensate and in ground stormwater plumbing to the legal point of discharge.

(c) A report by the plumber to be provided to the Applicant and the Respondent confirming that the services have been leak tested and founded to be substantially leak free.

1. By 30 December 2025, the Respondents are to carry out the following works at their own costs:

(a) Request the City of Yarra check that the footpath pavement is suitably conducting the water from the downpipe in question away from the Subject Land and Adjoining Property and provide the City of Yarra's response to the Applicants.

1. The parties' respective claims for construction costs relating to the External Party Wall as set out in their claims and counterclaims are dismissed and all such costs are to remain borne by the party which incurred the cost.
2. Pursuant to sch 3, cl 16(3) to the Act, liberty to apply on the question of costs relating to the Application only, subject to such liberty being exercised within 14 days from the date of this determination.[1]

_______________________ ________________________

1. The Applicants, James Holman and Raelene Sambrook, are the owners of the Subject Land at 623 Brunswick Street, Fitzroy North**.**
2. The Respondents, Ross, Vicenzo and Carmel Calia, are the owners of the Adjoining Property at 621 Brunswick Street, Fitzroy North.
3. On 2 March 2025, the Applicants commenced an application to the Building Appeals Board (BAB) by referring a matter under s 158 of the Building Act 1993 (Act) to the BAB (Application).
4. Section 158 of the Act provides that:

(1) If a dispute arises between the owners of buildings with a party wall about the construction of the wall or how much of the cost of construction is to be met by each of the owners, any of the owners may refer the matter to the Building Appeals Board.

(2) Subsection (1) is in addition to and does not take away from the Subdivision Act 1988.

1. The hearing of the Application was held on 15 July 2025.
2. We have considered the parties' oral and written submissions and the materials filed in the proceeding.
3. We have also had regard to:

(a) the Act and the Building Regulations 2018 (Regulations); and

(b) a site inspection of the Subject Land and Adjoining Property conducted by us on 28 July 2025.

1. This is a dispute between the owners of two adjoining 19th century terrace houses regarding the wall that separates the two and damage to that wall at its east end.
2. The Subject Land and Adjoining Property benefit from shared walls at the South boundary of the Subject Land and North boundary of the Adjoining Property.
3. The two buildings, in the area of concern, present as substantially structurally original.
4. The title status of the boundary walls of the properties vary along their lengths with the key section of wall the subject of the Application consisting of:

(a) an 8.15 metre section of double brick wall that bounds the front, internal rooms of both properties (Internal Party Wall); and

(b) a separate, 2.44 metre section of double brick wall that bounds the front verandah, balcony and garden of the Subject Land and a front room of the Adjoining Property (External Party Wall).

1. The External Party Wall is further separable into two sub-sections being:

(a) a section that bounds the front, paved verandah and balcony of the Subject Land and which shows the most cracking and structural distress (Verandah Wall); and

(b) a section that bounds the front, permeable garden of the Subject Land (Garden Wall).

1. The External Party Wall is the 'party wall' the subject of the dispute and the Application.
2. The two properties face approximately due east so the External Party Wall is in the south east part of the Subject Land and the north east part of the Adjoining Property.
3. The Party Wall has suffered movement, cracking and distress and the dispute centres upon the likely cause/s of this cracking and movement, the scope of appropriate remedial works and the responsibilities of each party for such works.

THE BAB's JURISDICTION UNDER SECTION 158

1. Section 158 of the Act allows owners of buildings with a party wall to refer disputes about either:

(a) the construction of the party wall; or

(b) cost of the construction,

1. However, the term 'party wall' used in s 158 is not defined in the Act or the Regulations.
2. In the Supreme Court of Victoria decision of Walsh v Elson[2], the term 'party wall' was deemed to have any of four meanings, being:

(a) "a wall of which the two adjoining owners are tenants in common; or

(b) a wall divided vertically into two portions, one belonging to each of the adjoining owners; or

(c) a wall which belongs entirely to one adjoining owner subject to an easement in the other to have it maintained as a dividing wall; or

(d) a wall divided vertically into two portions, each owned by one, but being subject to a cross-easement in favour of the other portion."[3]

1. In addition to the submissions of the parties and the title documents provided (including PS445111J), we have had regard to the following documents which were not provided by either of the parties:

(a) Lot Plan 40748 (LP40748), which is a lot plan referred to in the easement register attached to PS445111J; and

(b) Instrument AP121385Y, which is missing from Land Victoria's database.

1. It is clear from LP40748 and PS44511J that the Internal Party Wall is a party wall as defined by the fourth limb of Walsh v Elson.
2. That is, the Internal Party Wall is a party wall that:

(a) is divided vertically into two portions, each owned by the Applicants and Respondents, as shown in LP40748; and

(b) is subject to cross-easements in favour of both the Applicants and the Respondents as indicated by:

(i) easement E-1 in PS445111J; and

(ii) easements E-2 and E-3 on LP40748.

1. However, the dispute and Application relate to the External Party Wall, which is less clear.
2. In that regard, the Applicant's submissions, including those of its consultant, Mr Sprague of Cito Construction, contradictorily asserts that:

(a) the External Party Wall is 'not a parti [sic] wall' and 'maintenance of this Boundary Wall is the responsibility of the Property owners of Lot 621'; but

(b) despite being a boundary wall which is 'not shared across the boundary of the properties, functions in a manner indistinguishable from a traditional party wall;' and

(c) the definition of party wall for the purposes of s 158 ought to be determined broadly to include the External Party Wall.

1. The Respondents do not challenge the jurisdiction of the BAB to deal with the matter referred to the BAB and accept that the External Party Wall is a party wall for the purposes of s 158 of the Act.
2. On the balance of probabilities, we find that the External Party Wall is a party wall consistent with the third limb of Walsh v Elson.
3. That is, the External Party Wall is a party wall that is owned by the Respondent but subject to an implied easement of support to maintain the External Party Wall as a dividing wall because:

(a) although:

(i) neither PS445111J nor LP4078 shows the External Party Wall as an easement; and

(ii) the External Party Wall physically sits entirely within the title boundary of the Adjoining Property;

(b) the External Party Wall is used:

(i) by the Parties as a dividing wall that separates the Adjoining Property from the Subject Land's garden, verandah and balcony; and

(ii) by the Applicant as support for the Subject Land's verandah, balcony and associated roof and storm water drainage structures.

1. Although we accept the Applicant's submission that the External Party Wall is a party wall for the purposes of s158, we do not accept the Applicant's submission that the maintenance of the External Party Wall is solely the responsibility of the Respondents.
2. This is because:

(a) the External Party Wall is used by the Applicant as support for the Subject Land's verandah, balcony and associated roof and storm water drainage structures; and

(b) access to the north face of the External Party Wall:

(i) can only be gained through the Subject Land; and

(ii) is restricted by fencing and gates on the Subject Land controlled by the Applicant.

1. Accordingly, we find that maintenance of the External Party Wall is the joint responsibility of the parties, with:

(a) the Applicant primarily responsible for maintenance of the north face and brick leaf of the External Party Wall; and

(b) the Respondent primarily responsible for maintenance of the south face and brick leaf of the External Party Wall.

1. The term 'construction' is not defined in the Act but the term "construct" is defined in section 3 of the Act as:

(a) build, re-build, erect or re-erect the building; and

1. The carrying out of repairs to the External Party Wall fits within this definition.
2. We thus confirm that we have the jurisdiction to make the necessary determination with regard to any repair work to the External Party Wall or costs to such works which may be in dispute.
3. With regard to works to other parts of the buildings or sites that may be relevant to the External Party Wall, we also find we have the necessary jurisdiction so long as such works:

(a) are necessary and reasonable to ensure the repair and maintenance of the External Party Wall; and/or

(b) substantially affect the External Party Wall, even if such works are not directly made to the External Party Wall.

1. Examples of such works may include the foundation or footings to which the External Party Wall is founded on or other building items, such as stormwater drains, which may be affecting or causing defects to the External Party Wall.

1. The Applicants' technical and engineering submissions about the state of the External Party Wall are extensive and have all been considered.
2. In summary the Applicant contends:

(a) The External Party Wall has suffered distress in recent years from foundation movement.

(b) The dominant pattern of this foundation movement is settlement of the south east corner of the house and, in particular, the east-most extremity of the External Party Wall which protrudes beyond the house and verandah.

(c) The foundation movement has been caused by a lack of bearing capacity of the foundation, softening in common parlance.

(d) The foundation softening has been caused by water ingress.

(e) The water ingress has emanated entirely or substantially from the downpipe (DPA) at the north east corner of the Subject Land that services the first floor verandah and ground floor canopy of the Adjoining Property.

(f) The External Party Wall is unstable and potentially dangerous.

(g) Differential movements of up to 70mm have occurred.

(h) Remedial works are required that reverse a substantial part of the movement, ensure future stability and repair the structure.

1. Although engineering reports by certified structural and geotechnical engineers were provided by the Applicants to support their case, the Applicant's primary expert and technical submissions are provided by Mr Sprague, of Cito Constructions.
2. Mr Sprague is a registered builder of many years' experience, but does not have any engineering qualifications or expertise.
3. Mr Sprague was the only expert that attended the hearing of the Application on behalf of the Applicants.

1. The Respondent' technical and engineering submissions about the state of the External Party Wall are also extensive and have all been considered.
2. In summary the Respondent contends:

(a) The building movement and distress is broadly as asserted by the Applicant, although there is some difference in the figures.

(b) The movement and distress has not been caused dominantly, or at all by DPA but by a number of influences within the Subject Land over many years, including defective plumbing, poor site drainage and vegetation causing drying of the soil.

1. Similar to the Applicant's engineering reports by certified structural and geotechnical engineers were provided by the Respondents to support their case.
2. The Respondents'[4] primary expert and technical submissions are provided by Ms Khani of Melbourne Forensic Structural Engineering.
3. Ms Khani is qualified, registered structural engineer with many years of experience.
4. Ms Khani was the only expert that attended the hearing of the Application on behalf of the Respondent.

THE APPLICANTS' EXPERT EVIDENCE OF MR JAMES SPRAGUE

1. Mr Sprague is a builder but also introduced himself as an expert in the causation investigation process in detail. Mr Sprague's report was not presented in accordance with BAB-Practice-Note-5-2020 or any other court or tribunal practice note.
2. Mr Sprague gave evidence as diverse as his opinions of the motivations of others and provided extensive opinion regarding causation.
3. One of Mr Sprague's contentions was that water discharging from the DPA was flowing back towards the building line and reaching the foundations of the External Party Wall. The Respondent presented photographic evidence of Mr Sprague pouring water behind the downpipe in an effort to prove his hypothesis.
4. Mr Sprague contended that differential movements of up to 70mm required addressing. This contrasts with the measured levels available from the Strength Engineering report and Ms Khani. Of these Ms Khani's evidence is preferred, given her qualifications and expertise but also due to her appearance at the hearing to support her reported findings and answer our queries.
5. Ms Khani measured 46mm north to south across the front of the house on the Subject Land and 14mm from the front of the house to the eastern end of the nib wall. Of these two measurements it is only the 14mm that is relevant to the area of Mr Sprague's concern.
6. Mr Sprague described being able to deform the brickwork of the External Party Wall over a significant area by hand action from upon a scaffold. The BAB accepts this evidence as informative.
7. We are, however, not satisfied that Mr Sprague is qualified to provide evidence regarding causation.
8. For these reasons we give little weight to his opinions regarding causation which are, in brief:

(a) Mr Sprague contended that water was emanating from the DPA and running back towards the building. We are not convinced that this has been established to be the dominant or material flow of water but neither are we excluding the possibility that some water could flow towards the building as contended.

(b) Mr Sprague contended, without supporting evidence, that this water was reaching the foundation of the eastern end of the External Party Wall. We are not satisfied that this is occurring.

(c) Mr Sprague further contended that the foundation of the eastern end of the External Party Wall was saturated to the point of not being able to carry the weight of the footing without settlement as a result of this water inundation. There is no evidence for this and it is contrary to the geotechnical evidence.

(d) Mr Sprague offered further opinions regarding appropriate structural remedial works which we do not accept as this is outside his expertise.

THE APPLICANTS' EXPERT REPORT OF STRENGTH ENGINEERING

1. Strength Engineering (Strength) is a consulting engineering firm.
2. Strength's report was not presented in accordance with BAB-Practice-Note-5-2020 or any other court or tribunal practice note.
3. Strength's report was co-authored by Ulas Hazar and Hamed Fayeghi. Neither were nominated as the responsible author. No information about the qualifications and experience of the authors were provided.
4. Strength did not appear at the hearing.
5. For the above reasons we give little weight to Strength's opinions which include:

(a) A range of possible influences contributing to foundation and building movement were identified.

(b) An accompanying report by Oz Geos Geotechnical and Structural dated 25/07/2024, was cited. This report described an investigation that only reached the foundation with penetration testing rods so provided only very limited information which suggested a sound bearing capacity.

(c) Resin injection to the foundation was recommended without any explanation explaining its strengths and limitations and comparing and contrasting it to other solutions.

THE RESPONDENTS' EXPERT EVIDENCE OF MS SARA KHANI

1. Ms Khani is a qualified structural engineer with extensive experience in forensic investigation and limited her evidence to her field of expertise.
2. Ms Khani's report was presented in accordance with BAB-Practice-Note-5-2020.
3. Ms Khani provided opinion on causation and an appropriate scope of remedial works informed by an inspection and report of Civil Test.
4. Civil Test did not appear but no contradictors of their evidence emerged. They inspected, sampled and tested the foundation material in the area of concern and established that it was within the normal moisture content range. This means it was not saturated.
5. Ms Khani concluded, consistently with her measurements and observations and with Civil Test's results that the External Party Wall had suffered from seasonal reactive volumetric changes in the foundation exacerbated by a range of site factors.
6. She was not able to quantify apportionment to each factor but all were influences from within 623 Brunswick Street. These included, previously derelict roof drainage, previous vegetation and its removal, previously un-reticulated air conditioner condensate discharge, previously blocked stormwater outlet, inadequate surface drainage, and ongoing unsound earthenware stormwater service.
7. Ms Khani opined that if these abnormal influences could be resolved, after a period of at least 12 months for the foundation to stabilise, the External Party Wall can be repaired without the need for underpinning. She cautioned that ongoing reactive movement is still possible and impractical to fully control.
8. Furthermore, Ms Khani explained that underpinning, either by bulk concrete or resin injection would be unlikely to be effective and may cause other damage.
9. Ms Khani's opinions are consistent with the available evidence and engineering principles and are logical and consistent.
10. Whilst Ms Khani's recommendations do not provide full restoration of either movement or distress, in the context of a building of this age and condition, on balance, we are satisfied that they are appropriate.

1. The External Party Wall has suffered movement and distress over many years. This results from variations in foundation moisture from site conditions within the Subject Land.
2. These include but may not be limited to defective[5] roof and stormwater plumbing, a lack of surface drainage, prior vegetation and an un-reticulated air conditioning condensate discharge. Some of these issues have been addressed over the course of various works conducted to the External Party Wall and stormwater system of the Subject Land.
3. Currently, however, the most appropriate remedial works are to control the factors causing or exacerbating abnormal foundation conditions before repair to the External Party Wall is considered.
4. It is not realistic to expect this, a frail old building on a highly reactive site, to have the structural integrity or consistency of performance of a modern building.
5. Full restoration is impractical within the scope of a realistic determination regarding repairs. It may be practical within the scope of a major restoration which is outside the scope of this Application and the Dispute.
6. Accordingly, we accept Ms Khani's expert submission that the soil conditions of the two properties be stabilized first, before further, more substantial works be considered.
7. Pending the outcome of any soil stabilization works, the parties should then work together to determine whether any further works are actually required.
8. In that regard, we note it would be open for either party to refer any subsequent disputes that may emerge about such future works or costs of such to the BAB under s 158 of the Act.
9. Returning to the subject dispute of this Application, the BAB determines and directs that:

(a) the Applicants are to carry out the following works at their own costs:

(i) Have a licensed plumber replace the existing in ground earthenware stormwater line at the south east corner of the Subject Land with a new PVC service.

(ii) Have a licensed plumber check and ensure the integrity and water tightness of the stormwater plumbing at the east end of the Subject Land. This is to include, roof gutters, downpipes, air conditioning condensate and in ground stormwater plumbing to the legal point of discharge.

(iii) A report by the plumber to be provided to the Applicant and the Respondent and confirming that the services have been leak tested and founded to be substantially leak free.

(b) the Respondents are to carry out the following works at their own costs:

(i) Request the City of Yarra check and ensure that the footpath pavement is suitably conducting the water from the downpipe in question away from the Subject Land and Adjoining Property and provide to the Applicant written confirmation of the City of Yarra's response.

1. The parties' claims and counterclaims for each other to pay, in whole or in part, construction and consultancy costs spent to date are dismissed and the BAB determines that such costs are to remain borne by the party which incurred them.

[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] Walsh v Elson [1955] VicLawRp 2; (1955) VLR 276.

[4] Corrected by determination made on 15 October 2025 under cl 18(1)(a) of Sch 3 to the Building Act 1993, Orders 1 and 2, deleting 'The Applicant's' and substituting 'The Respondent's', and deleting 'constructions' in para 43 of the Reasons dated 3 October 2025.

[5] Corrected by determination made on 15 October 2025 under cl 18(1)(a) of Sch 3 to the Building Act 1993, Order 3, deleting 'deflective' and substituting 'defective' in para 70 of the Reasons dated 3 October 2025.