Joybay Pty Ltd & Anor: in the matter of an Application under Section 68 of the Domestic Building Contracts Act 1995 (Vic) [2019] VSC 620 (18 October 2019)

1 The Domestic Buildings Contracts Act 1995 (Vic) ('DBCA') and the Building Act 1993 (Vic) ('Building Act') (together, 'building legislation') regulate building works with respect to residential properties in Victoria. The building legislation is important consumer protection legislation.

2 The building legislation requires that all major domestic building works (that is, works valued in excess of $5,000) be carried out by a registered builder, save where an owner-builder has obtained a permit to carry out building works on its own behalf. Prior to the commencement of construction, the builder or owner‑builder must obtain approved domestic building warranty insurance to cover any claims for defects by the owner of the relevant property, or a subsequent purchaser.

3 In the current case, the applicants are the registered proprietors of a number of residential apartments in a three level building in Victoria Street, North Melbourne. It appears that the apartments were constructed within the shell of an existing building. The apartments were constructed pursuant to a contract between the former owner of the building and a registered builder. However, contrary to s 136 of the Building Act, the builder did not obtain approved domestic building warranty insurance with respect to the construction of the apartments ('building works').

4 Section 137B of the Building Act provides, among other things, that it is an offence to sell a property within six and a half years of the issue of an occupancy certificate without domestic building warranty insurance. However, s 68 of the DBCA provides an exemption from the operation of s 137B of the Building Act if certain conditions are met. The question in this proceeding is whether persons other than owner‑builders, including the applicants in this proceeding, are eligible to apply for an exemption under s 68 of the DBCA.

5 The failure of the builder to obtain domestic building warranty insurance has created significant difficulties for the applicants. First, the building surveyor overseeing the building works refused to issue a certificate of occupancy for the apartments, on the basis that the apartments were not covered by domestic building warranty insurance. An appeal of that determination to the Building Appeals Board ('Board') was successful, and the apartments are now tenanted. However, the Board imposed a condition that the apartments may not be sold without domestic building warranty insurance within six and a half years of the date of the issue of the certificates of occupancy.

6 The applicants then sought to obtain domestic building warranty insurance for the apartments, but were unsuccessful. They made an application to a senior member of the Victorian Civil and Administrative Tribunal ('VCAT') pursuant to s 68 of the DBCA to be relieved of their obligations to hold domestic building warranty insurance. That application was unsuccessful, on the basis that the applicants were not parties subject to the requirements of s 137B of the Building Act. They seek leave to appeal the decision of a Senior Member of VCAT under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act'). As in the application before VCAT, there is no contradictor to the current application.

7 The building was purchased by Errol Property Group Pty Ltd ('EPG') in or about 1996. EPG, which is now deregistered, obtained planning and building permits for converting the building into a mixed use commercial development, and obtained development funding from Suncorp-Metway Limited.

8 At some stage during the course of the development, EPG altered its plans, and decided to construct nine apartments in place of the gym originally proposed for level two, now owned by the first applicant ('Joybay'), and a residential apartment on level one, of which the second applicant ('Sailoman') is currently the mortgagee in possession, in addition to the office suites.

9 The building works were carried out by a registered builder, Mr George Haintz, who was also a director of EPG. However, as noted above, Mr Haintz had not obtained domestic warranty insurance in respect of the building works as required by s 136 of the Building Act. The building works were, however, carried out pursuant to a building permit issued by a registered building surveyor. The issue of a building permit without any evidence of domestic building warranty insurance breached s 24A(1) of the Building Act.[1]

10 Before the building works were completed, EPG experienced funding difficulties. On 17 October 2007, in an effort to alleviate those funding difficulties, EPG sold level two of the building to Joybay.

11 The apartments were substantially complete by late 2010.

12 In around July 2011, EPG defaulted under its loan to Suncorp-Metway Limited, and a receiver and manager was appointed. EPG was subsequently de-registered. Thus, all the works ceased, including those works in respect of the common areas of the building.

14 In April 2014, Sailoman took an assignment of the mortgage over the apartment on level one from Suncorp-Metway Limited. After taking possession of the apartment as mortgagee in possession, Sailoman proceeded to complete the development of the building, including the outstanding works in respect of the common areas of the building.

15 After the completion of the works, the applicants engaged the services of a consultant building surveyor, Mr Ari Akritidis, to review the works. On 11 April 2016, Mr Akritidis made an application on behalf of the applicants to a registered private building surveyor, Mr Liddy, for occupancy permits in respect of the apartments. Mr Liddy was the building surveyor who issued the original building permit, presumably at a time when it was anticipated that EPG would develop the building solely for commercial purposes.

16 On 19 April 2016, Mr Liddy refused the application for the occupancy permits, on the basis that domestic building warranty insurance had not been obtained for the building works. On 28 April 2016, the applicants lodged an appeal against Mr Liddy's determination with the Board pursuant to s 144 of the Building Act.

17 The appeal was heard by the Board on 9 June 2016. Mr Akritidis gave evidence that the apartments and the building were fully compliant with the Building Code, and that occupancy permits ought be issued. Mr Liddy did not object to the issuing of occupancy permits on any ground connected with the state of the apartments.

18 On 5 July 2016, the Board determined to set aside Mr Liddy's decision, and remitted the decision to him for reconsideration in accordance with the Board's directions.

19 The Board directed that occupancy permits be issued for each of the apartments. However, the Board imposed a condition that:

each occupancy permit is to be subject to the condition that the owner of the lot may not sell the lot within six and a half years of the issue of the occupancy permit without having domestic building warranty insurance.[2]

20 The applicants then attempted to obtain domestic building warranty insurance by engaging a new builder. However, the new builder was advised by an accredited insurer that it would not allow any domestic building warranty insurance to be taken out by any person other than the builder who completed the works.

21 The applicants consider that the practical effect of Mr Haintz's failure to obtain domestic building warranty insurance, and the decision of the Board, is that while the apartments may be occupied by tenants, the apartments cannot be sold by the applicants prior to 2023 without falling foul of s 137B of the Building Act.

22 The evidence advanced on behalf of the applicants before VCAT and this Court shows that, apart from the absence of domestic building warranty insurance, there are no defects or deficiencies in the apartments which would create a risk or impose a burden on any subsequent purchaser of the apartments or any of them. The Board was provided with a substantial number of reports and certificates concerning the state of the apartments prior to directing the building surveyor to issue the occupancy certificates.

23 As noted above, on 29 August 2018 the applicants lodged an application to VCAT pursuant to s 68 of the DBCA for exemption from the operation of s 137B of the Building Act. The application was heard by a Senior Member on 4 October 2018.

24 The applicants submitted that VCAT should grant an exemption under s 68 of the DBCA, because of the following exceptional circumstances:

(i) the builder negligently, carelessly or contemptuously failed to take out builders warranty insurance at or immediately prior to the commencement of construction;

(ii) the builder is bankrupt;

(iii) the company that was, at the relevant time, the registered proprietor of Lot 4 (the second applicant's unit) is deregistered;

(iv) the private building surveyor did not require or request that building warranty insurance be obtained;

(v) the appellants have taken all reasonable steps to procure and obtain building warranty insurance and have been denied the grant of such insurance absolutely;

(vi) the dwellings have been constructed in compliance with all requirements of the Building Act the Building Regulations and Australian Standards, as is evidenced by the grant by the Building Appeals Board of Certificates of Occupancy

25 Further, those circumstances made compliance with s 137B impossible, and the consequent inability to sell the apartments causes the applicants undue hardship.

26 On 12 October 2018, the Senior Member dismissed the application. The Senior Member's reasons provided, relevantly, as follows:

1. The applicants submitted that s68 can apply to buildings built other than by an owner-builder.

1. The headings of s 68 of the DBC Act and s 137B of the Building Act both referred to owner-builders. Mr Schlicht submitted that in accordance with the decision of the High Court of Australia in Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd, [1978] HCA 11; 18 ALR 639 at 644 it is inappropriate that:

... the unambiguous words of s52 [of the Trade Practices Act] should be given some unnaturally confined meaning because of the heading...

1. I accept Mr Schlicht's submission, where the words in the relevant section are unambiguous. However, I am not satisfied that they unambiguously mean what the applicants submit. I do not take the headings into consideration in interpreting the sections.

1. Mr Schlicht submitted that as s 68 allows 'a person' to make application, Parliament has not limited the person who can apply to an owner-builder, and therefore has not limited the relevant contracts to owner-builder contracts. He said that under s 37B(l)(c) of the Building Act it is contemplated that a building can be exempted from the operation of the DBC Act by the Tribunal.

I am not satisfied that this subsection assists the applicants, as the section provides that this is a circumstance where s137B does not apply, therefore it would be unnecessary to seek exemption from it under s 68.

Section 137B(1)(b)

1. Having regard to this subsection, s 137B does not apply to the construction of a home under a major domestic building contract, which the applicants agreed occurred or should have occurred, unless in accordance with subsection (5), The applicants also agreed that subsection 137B(5) did not apply.

1. I am satisfied that s 68 of the DBC Act only applies to exempt a building from the operation of s 137B of the Building Act. I am not satisfied that the applicants' properties are of a type contemplated by that section.

27 Accordingly, while it was not explained at length in her reasons, the Senior Member held that, by reason of the building works having been carried out under one or more major domestic building contracts, the provisions of s 137B did not apply to the apartments[3], and as such, the applicant had no standing to bring an application under s 68 of the DBCA.

28 Section 148 of the VCAT Act requires that, in order for the Court to grant leave to appeal, the applicant must show that the proposed appeal will have 'real prospects of success'.[4] On 28 November 2018, Judicial Registrar Clayton made orders listing the application for leave to appeal together with the appeal if leave were granted.

29 In their notice of appeal filed on 8 November 2018, the applicants identified the following question of law:

Whether the applicants by reason of s 68 of the [DBCA] are entitled to an exemption from the operation of s 137B of the Building Act.

30 The grounds of appeal relied upon by the applicants are as follows:

(1) The Tribunal erred in law in holding that s 68 of the [DBCA] only applied to owner builders.

(2) The Tribunal erred in law in not finding that the discretion to consider an application under Section 68 of the [DBCA] to grant an exemption under section 137B of the Building Act 1993 on the application of an owner of the land or any other person who is entitled to possession of the Building is a broad and unfettered discretion.

(3) The only relevant considerations for an application under section 68 of the [DBCA] for exemption under section 137B of the Building Act are the merits of the application.

(4) The Tribunal erred in law by failing to exercise the discretion afforded to it under section 68 of the [DBCA] when it accepted as a matter of fact that:

(a) the Applicants were persons for the purposes of the [DBCA];

(b) that there were exceptional circumstances; and

(c) full compliance with s.137B of the [Building Act] was impossible or would cause undue hardship.

(5) The Tribunal erred in law in finding that subsection (5) of section 137B of the Building Act did not apply to the First and Second named Plaintiffs.

(6) The Tribunal erred in law in holding that that the properties of the First and Second named Plaintiffs were not of a type of building to which section 1378 of the Building Act could apply.

(7) The Tribunal erred in law by refusing the application despite finding exceptional circumstances pertaining to the application on the evidence and that it was impossible for the Applicants to comply with s 137B of the [DBCA].

31 While the proposed notice of appeal refers to a number of grounds of appeal, the key question in this application for leave to appeal, as articulated in the applicants' submissions, is whether, upon the proper construction of the building legislation, the applicants have an entitlement to apply for an exemption under s 68 of the DBCA.

32 The legislative framework governing the domestic building industry has been in place, largely in its current form, since the enactment of the Domestic Contracts and Tribunal Act 1995 (Vic) ('original Act'), the predecessor legislation to the DBCA.[5] The object of the original Act, as set out in the Explanatory Memorandum for the Domestic Building Contracts and Tribunal Bill 1995 ('Explanatory Memorandum'), was, among other things, 'to enable building owners to have access to insurance if work carried out under a major domestic building contract is incomplete or defective.'

33 Part 7 of the original Act made a number of amendments to the Building Act which introduced the provisions which are, along with s 68 of the DCBA, the subject of the current proceeding. Accordingly, this is not a case where the relevant legislative framework evolved over time, which means that the applicants' submission that s 68 of the DBCA was enacted to fill gaps in s 137B of the Building Act carries less force. As shown by the relevant extracts of the Explanatory Memorandum which follow, the amendments to the Building Act introduced by the original Act provide a comprehensive regime in an attempt to ensure that all major domestic building works are covered by domestic building warranty insurance:

PART 7 - AMENDMENT OF THE BUILDING ACT 1993[6]

...

Clause 137 provides that building surveyors cannot issue a building permit in relation to domestic building work under a major domestic building contract unless the building practitioner holds a certificate under Part 11 of the Building Act 1993, or is a registered architect, and has the required insurance cover for that work. Where a new builder has been engaged for such domestic building work for which a building permit has been issued, the new builder must notify the relevant building surveyor, within 14 days of commencement, of the required insurance by which the new builder is covered.

...

Clause 139 substitutes and amends section 135 of the Building Act 1993 to enable the Minister for Planning, by order published in the Government Gazette, to require building practitioners in specified categories to obtain insurance of a specified type and amount. A person is covered by the required insurance if: (a) the person holds the required insurance; (b) the work carried out is covered by the required insurance; (c) in the case of a person managing the carrying out of the work, if their work and the building work itself is covered by the required insurance; or (d) the person is not a party to the required insurance but is specified or referred to as a person to whom the insurance cover extends.

...

Clause 140 substitutes section 136 of the Building Act 1993 to make it an offence for a builder to work as a builder or as a building manager without the required insurance. Substantial penalties apply for breach of this provision.

...

Clause 142 inserts new sections 137A, 137B, 137C, 137D and 137E into the Building Act 1993.

Section 137A provides that the Ministerial Order under section 35 which prescribes the required insurance for domestic builders may, subject to such exemption and exclusions set out in the order, cover losses resulting from: (a) breaches of the implied warranties contained in the Domestic Building Contracts and Tribunal Act 1995; (b) defective building work, (c) non-completion of the work; or (d) the builder's misleading or deceptive conduct in contravention of the State or Commonwealth consumer protection law, but will not cover losses resulting from the criminal conduct of the builder. The required insurance will protect the person for whom the domestic building work was performed and extend, where relevant, to successors in title of the owner of the building or land.

Section 137B makes it an offence for an owner-builder to sell a building within 7 years of its completion without having obtained a report containing the matters required by the Minister for Planning as published in the Government Gazette and the required insurance which may be limited only by any defects disclosed in the report. A registered builder is exempt from obtaining a defects report if the required insurance is in place. Where these and certain other procedural steps have not been complied with, the contract is voidable at the purchaser's option at any time prior to completion of the contract. A person who seeks to have 4 or more homes constructed by one builder may apply to the Director for exemption from the requirement to be insured in relation to that building work, and effectively defer compliance with this section until any of the homes are to be sold.

This latter provision merely provides an option to a financier/developer who may not wish to obtain the benefit of insurance cover but will be required to provide such insurance protection to a purchaser at the time of sale.

Section 137C prescribes certain warranties in relation to owner-built homes. These provide that the vendor warrants: (a) that the domestic building work was carried out properly and to the appropriate standards; (b) that materials used were suitable for their intended purpose, and were new unless otherwise stated in the contract; and (c) that the work was carried out in accordance with all applicable laws and regulations. Successors in title are covered by these warranties. Any provision attempting to limit or remove the warranties is void except where the person knew or ought reasonably to have known of the breach.

Section 137D provides that insurance required in respect of owner-built homes: (a) may insure each person entitled to the benefit of any of the warranties contained in section 137C against any loss resulting from a breach of that warranty, and (b) must provide that the insurer is not liable in respect of any defect which is referred to in the report provided to the purchaser under section 137B.

Section 137E provides that a person must not enter into a contract for the sale of land on which a home is being constructed, or is to be constructed before the completion of the contract, unless the building work is or will be constructed under a major domestic building contract or Part 2 of the House Contracts Guarantee Act 1987 applies to the building work.

This means that the vendor must either be a registered domestic builder or engage a registered domestic builder under a major domestic building contract.

This provision seeks to ensure that the purchaser will have the protection of minimum contractual provisions and/or implied statutory warranties and the required insurance.

...

Clause 144 amends section 169(2)(e) of the Building Act 1993 to require that, in applications for registration as a builder, the applicant must provide proof of their insurance cover, or, to the extent that builders intend to work on domestic building work, their eligibility for such insurance where insurance or eligibility is required.

This latter requirement contemplates that in the case of domestic building work a policy may be taken out in respect of each major domestic building contract.

Clause 145 substitutes section 172(2) of the Building Act 1993 to require that on the yearly anniversary of registration, builders pay the required fee, and show that until the next anniversary or, subject to such conditions as the Board may require, such earlier date approved by the Board, he or she will hold the required insurance, or to the extent that builders are engaged in major domestic building work, that he or she is eligible for the required insurance. Section 172(4) is substituted for a provision ensuring that a builder breaching these requirements is suspended until the fee is paid and proof of their insurance or eligibility for insurance is provided to the Building Practitioners' Board.

...

Clause 147 inserts a new section 176(2A) into the Building Act 1993 to create an offence of carrying out domestic building work under a major domestic building contract without registration.

34 As a result of the enactment of the original Act, ss 24A, 135, 136, 137A, 137B, 137C and 137D of the Building Act came into force, as reproduced below:

24A Further limitations on the issue of building permits

(1) The relevant building surveyor must not issue a building permit in relation to building work unless the relevant building surveyor is satisfied that -

(a) the building work is to be carried out by a builder who is specified under section 24B for that work; and

(b) the builder is named in the building permit; and

(c) in the case of building work carried out under a major domestic building contract -

(i) if the cost of the building work exceeds the prescribed amount, the following names are identical -

(A) the name of the person who is named as the builder in the contract;

(B) the name of the person specified as the builder in a certificate of insurance from the insurer providing the required insurance in relation to the building work; and

(ii) the major domestic building contract was entered into by a person entitled to do so under section 29 of the Domestic Building Contracts Act 1995 ; and

(d) in the case of a builder who is a body corporate, there is specified in the building permit the name of a natural person on whom directions, notices and orders under this Act directed to the body corporate can be served.

...

135 Order requiring insurance

(1) The Minister may, by order published in the Government Gazette -

(a) require building practitioners in specified categories or classes of building practitioners or any part of a class or category of building practitioners to be covered by insurance; and ...

(c) specify the kinds and amount of insurance by which building practitioners and persons in each specified category or class or part of a category or class are required to be covered.

136 Offence to work as building practitioner without required insurance

(1) A building practitioner (other than a builder carrying out or managing or arranging the carrying out of domestic building work) must not carry out work as a building practitioner unless the building practitioner is covered by the required insurance.

Penalty: 500 penalty units, in the case of a natural person.

2500 penalty units, in the case of a body corporate.

(2) A builder must not carry out or manage or arrange the carrying out of domestic building work under a major domestic building contract unless the builder is covered by the required insurance.

Penalty: 500 penalty units, in the case of a natural person.

2500 penalty units, in the case of a body corporate.

(3) Despite section 135(6), a builder referred to in subsection (2) is taken not to be covered by the required insurance if the name of that builder specified in the major domestic building contract is not identical to the name of the builder specified in the certificate of insurance from the insurer providing the required insurance in relation to the building work.

137A Insurance for domestic building work

(1) Without limiting section 135, if an order under that section requires a builder to be covered by insurance relating to the carrying out of domestic building work or managing or arranging the carrying out of domestic building work, the insurance required by the order may, subject to any exemptions or exclusions set out in the order, relate to losses resulting from -

(a) breaches of warranties implied into the major domestic building contract for that work under the Domestic Building Contracts Act 1995 ;

(b) domestic building work which is defective within the meaning of that Act;

(c) non-completion of the domestic building work;

(d) conduct by the builder in connection with the major domestic building contract for that work which contravenes section 18, 29, 34 or 151, or Subdivision B of Division 1 of Part 3-2, of the Australian Consumer Law (Victoria).

...

137B Offence for owner-builder to sell building without report or insurance

(1) This section does not apply to -

(a) the construction of a building (other than a home) by -

(i) a registered building practitioner; or

(ii) an architect registered under the Architects Act 1991; or

(b) except as provided in subsection (5), the construction of a home under a major domestic building contract; or

(c) a building that is exempted from the operation of this section by VCAT under the Domestic Building Contracts Act 1995; or

(d) a building to which section 137E applies.

(2) A person who constructs a building must not enter into a contract to sell the building under which the purchaser will become entitled to possess the building (or to receive the rent and profits from the building) within the prescribed period unless -

(a) in the case of a person other than a registered building practitioner -

(i) the person has obtained a report on the building from a prescribed building practitioner that contains the matters that are required by the Minister by notice published in the Government Gazette; and

(ii) the person obtained the report not more than 6 months before the person enters into the contract to sell the building; and

(iii) the person has given a copy of the report to the intending purchaser; and

(b) the person is covered by the required insurance (if any); and

(c) the person has given the purchaser a certificate evidencing the existence of that insurance; and

(d) in the case of a contract for the sale of a home, the contract sets out the warranties implied into the contract by section 137C.

Penalty: 100 penalty units.

(3) A contract entered into in contravention of subsection (2) is not void by reason only of the contravention but is voidable at the option of the purchaser at any time before completion of the contract.

(4) A person who enters into a major domestic building contract with a builder for the construction of more than 4 homes may, with the consent of the builder, apply in writing to the Director of Consumer Affairs Victoria within the meaning of the Australian Consumer Law and Fair Trading Act 2012 to exempt the builder from the requirement to be covered by the required insurance in respect of that building work.

(5) If, on an application under subsection (4), the Director of Consumer Affairs Victoria, in writing, exempts a builder from the requirement to be covered by insurance in respect of building work -

(a) the builder is not required to be covered by the required insurance in respect of that building work; and

(b) this section (except subsection (2)(a)) applies to the sale of a home constructed under that major domestic building contract.

...

prescribed period means -

(a) in relation to a contract for the sale of a building on which domestic building work has been carried out -

(i) 6 years and 6 months (or such longer period (not exceeding 10 years) as is prescribed) after the completion date for the construction of the building; or ...

137C Warranties for purposes of homes under section 137B

(1) The following warranties are part of every contract to which section 137B applies which relates to the sale of a home -

(a) the vendor warrants that all domestic building work carried out in relation to the construction by or on behalf of the vendor of the home was carried out in a proper and workmanlike manner; and

(b) the vendor warrants that all materials used in that domestic building work were good and suitable for the purpose for which they were used and that, unless otherwise stated in the contract, those materials were new; and

(c) the vendor warrants that that domestic building work was carried out in accordance with all laws and legal requirements, including, without limiting the generality of this warranty, this Act and the regulations.

(2) In addition to the purchaser under a contract to which section 137B applies, any person who is a successor in title to the purchaser may take proceedings for a breach of the warranties listed in subsection (1) as if that person were a party to the contract.

...

137D Insurance requirements for the purposes of homes under section 137B

(1) Without limiting section 135, if an order under that section requires a person to whom section 137B applies to be covered by insurance for the purposes of section 137B in respect of the sale of a home the insurance required by that order -

(a) may, subject to any exemptions or exclusions set out in the order, relate to losses resulting from breaches of warranties implied into the contract for the sale of the home under section 137C; and

(b) must provide that the insurer is not liable in respect of any defect which is referred to in the report provided to the purchaser under section 137B, if a report is required under that section.

(2) An order under section 135 may require insurance cover of a kind referred to in subsection (1)(a) to extend to each person who is or may become entitled to the benefit of any of those warranties.

68 Exemptions from owner-builder restrictions on sale

(1) A person may apply to VCAT to have a building exempted from the operation of section 137B of the Building Act 1993.

(2) VCAT may exempt a building from the operation of section 137B of the Building Act 1993 if it is satisfied that -

(a) there are exceptional circumstances; or

(b) full compliance with section 137B is impossible or would cause undue hardship.

(3) In granting an exemption VCAT may impose any conditions it considers appropriate.

36 The above provisions ('relevant provisons') require that all building works are required to be carried out pursuant to a building permit. Domestic building works may be carried out by a registered builder, or an owner builder. In order to be registered, a builder must carry approved insurance. A building permit can only be issued for domestic building works if the building surveyor is satisfied that the building works are covered by domestic building warranty insurance. Further, it is an offence for a builder to carry out domestic building works without domestic building warranty insurance, and it is an offence for an owner‑builder to sell a building within a prescribed period of time without domestic building warranty insurance, unless they have an exemption from the Director of Consumer Affairs under s 137B(5) of the Building Act, or from VCAT under s 68 of the DBCA.

37 Taken together, the relevant provisions enact a scheme designed to safeguard against domestic building works being carried out without the requisite insurance. The only gap in these safeguards appears to be in circumstances such as the current case, where a building permit is issued for non‑domestic building works, and where no further or amended permit was applied for when the nature of the works changed over the course of the development, thus not alerting the building surveyor to the need for domestic building warranty insurance.

38 Counsel for the applicants submitted that s 137B of the Building Act provides for four classes of persons who are exempt from the requirement to obtain domestic building warranty insurance, being:

(a) registered builders constructing a building which is not a house;

(b) owner-builders;

(c) persons constructing more than four domestic dwellings under the one contract; and

(d) persons who apply to VCAT under s 68 of the DCBA where there are:

(i) exceptional circumstances;

(ii) compliance is impossible; or

(iii) compliance would cause undue hardship.

39 The appellants submitted that the reference in s 68 of the DBCA to 'any person' extends the class of persons who can apply for an exemption beyond owner builders to parties in the position of the applicants.

40 The applicants submitted that the relevant provisions, to the extent that there appears to be some tension between them, should be construed in a manner which promotes harmony between them, referring to the following statement of the plurality of the High Court in Commissioner of Police (NSW) v Eaton:[7]

In accordance with ordinary rules of construction concerning the internal operation of a statute, the Police Act should be construed in a way which best achieves a harmonious result. The same principle of consistency informs the construction of two statutes which may share a field of operation.[8]

41 The applicants' submissions also referred to s 35 of the Interpretation of Legislation Act 1984 (Vic) in support of their submission that, in enacting s 68 of the DCBA, the legislature intended to provide an additional ground of exemption from the requirement to obtain domestic building warranty insurance over and above those contained within s 137B(1) of the Building Act. The applicants submitted that to interpret the building legislation in the manner preferred by the Senior Member would frustrate the legislative intention evidenced by s 68 of the DCBA.

42 The applicants submitted that the Senior Member's conclusion that the apartments are not buildings which are covered by s 137B of the Building Act renders s 68 of the DBCA ineffective, in that it would provide no remedy to parties in the position of the applicants: that is, where domestic building works have been carried out by a registered builder who fails to obtain domestic building warranty insurance. The applicants submitted, in summary, as follows:

(a) the policy objective underpinning the building legislation is to provide protection to owners of domestic buildings through compulsory insurance;

(b) however, the Building Act does not contemplate a situation where builders undertake domestic building works without insurance, which constitutes an exceptional circumstance within the meaning of s 68 of the DBCA;

(c) the Senior Member's 'carve out' from the operation of s 68 of the DBCA any domestic building constructed pursuant to a major domestic building contract, thus barring an application of the nature made by the applicants, is an error of law;

(d) the applicants otherwise meet the test for an exemption under s 68 of the DBCA;

(e) the Senior Member's analysis ignores the legislative intent of s 68 of the DBCA;

(f) the applicants submitted as follows:

First, the Tribunal's application of the prohibition provided in s 137B(1)(b) is far narrower than even a restrictive interpretation of s 68 would suggest. It ignores the entitlement asserted by the appellants in the present case and provided for in s 68 to apply to the Tribunal for an exemption from the very restriction imposed by 137B(1)(b) or (2)(b) provided by the DBC Act, which permits the applicants, having taken all reasonable steps to procure the relevant insurance cover and being rejected, to obtain an order to be exempted from the requirements of Section 137B, including s 137B(1) & (2)(b) on such conditions as the Tribunal may determine.

(g) the purpose of s 68 of the DBCA is to fill a gap in the earlier legislation, being the Building Act, which did not contemplate exceptional circumstances, where it is impossible to obtain insurance. The applicants submitted as follows:

Secondly the introduction in 1995 of clause 68 of the DBC Act is clearly designed to fill a 'gap' in the legislation as drafted in the Building Act. Section 68 contemplates a 'catch all' class of persons not otherwise dealt with under Section 137B. If this were not the case then the only way in which an entitlement could have been held to exist within the Tribunal's understanding of the meaning of Sections 68 and 137B would have been if the application were made solely by an owner builder. To adopt this logic would make the subsequent enactment of Section 68 not only meaningless but a nonsense.

Section 68 is purposefully designed, structured and drafted to definitively, positively and comprehensively state the circumstances in which there is an entitlement to seek the indulgence of the Tribunal to obtain an exemption.

There is no basis in law or logic to limit the scope of the entitlement of a person to apply under Sections 68(1) and ()2) by reference to the scope of restriction found in s 137B(1)(b) or for that matter s 137B(2)(b) whilst ignoring not only the purpose underlying that section of the Act enunciated in plain speech in the explanatory memorandum, but in sections 68(1) and (2) and also in section 137B(1)(c).

(h) and further, the applicants submitted as follows:

The Tribunal's conclusion as to the effect of s 137B(1) is not an answer to the question of whether or not s 68 confers an entitlement to apply for an exemption when that section is considered in conjunction with Section 35. Sole reliance on s 137B(1)(b) necessarily assumes that there is no entitlement to seek exemption under Section 68.

The relevant part of Section 137B is in fact 137(1)(c) which provides that Section 137B does not apply to a building that is exempted from the operation of 137B by VCAT under the DBC Act. If that relevant part of 137B does not articulate or confer a right on the Tribunal to grant an exemption, then Section 68 does nothing at all. That sits poorly with settled principles of statutory interpretation. It is clearly intended to do something, and what it does is what it says - it states in terms that, in an identified set of circumstances, an entitlement is provided to seek an exemption.

43 Accordingly, in summary, the applicants submitted:

(a) s 137B(2) and (3) prohibit the applicants from selling the apartments within a certain period;

(b) s 137B(1) extends the class of persons exempted from the operation of s 137B(2) and (3) to persons granted an exemption pursuant to s 68 of the DBCA;

(c) notwithstanding the heading to s 68 of the DBCA, which refers to 'owner builders' the reference to 'any person' extends the class of people entitled to obtain an exemption to parties in the position of the applicants; and

(d) given that the evidence establishes that there are exceptional circumstances, an exemption should be granted. This Court could grant the exemption on terms (such as the retention of a fund in Court or in a solicitors' trust account to remedy any defects), or alternatively remit the matter to VCAT to determine the terms upon which an exemption should be granted.

44 The applicants' submissions did not deal directly with the question of whether the apartments fall within the terms of s 137B(1)(b) of the Building Act, which excludes 'the construction of a home under a major domestic building contract' from the operative provisions of s 137B. The logical extension of the applicants' submissions, while not expressed in such terms, is that, if the objective of the building legislation is to ensure that all major domestic building works are covered by domestic building warranty insurance, then s 137B(1)(b) should be construed as reading 'the construction of a home under a major domestic building contract where the building works are covered by the required insurance'.

45 The applicants' submissions also did not deal with the question of how any determination by VCAT, or, for that matter, this Court, that the applicants are entitled to an exemption from the requirement to hold domestic building warranty insurance sits with the condition imposed by the Board upon the granting of occupancy certificates for the apartments. I understand from the supplementary submissions filed by the applicants that if successful in their appeal, the applicants intend to approach the Board to seek a variation of the orders made on 5 July 2016.

46 The principles of statutory construction are well settled. As stated by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority,[9] a court is required:

to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of a statute or the canons of construction may require the words of a provision to be read in a way that does not correspond with the literal or grammatical meaning'.[10]

47 In my view, the decision of the Senior Member, insofar as she found that s 137B of the Building Act did not apply to the apartments, at least on the basis of the literal interpretation of the Act, was correct, such that VCAT's jurisdiction to make an order under s 68 of the DBCA was not enlivened. Section 137B(1) excludes from the operation of s 137B the construction of a home under a major domestic building contract, save in the circumstances prescribed by s 137B(5). Accordingly, on a literal construction of s 137(1) of the Building Act, the consequences prescribed by ss 137B(2) and (3) will not follow in the event that the applicants sell the apartments without domestic building warranty insurance. No offence is committed, and no contract of sale is voidable by reason of the absence of domestic building warranty insurance with respect to the apartments.

48 The evidence of Mr Mercuri is that 'a building contract for $650,000 was entered into and completed.' No particulars of the building contract were provided. However, a 'major domestic building contract' is defined within s 3 of the Building Act as having the same meaning as a major domestic building contract has in the DBCA. Section 3 of the DBCA defines a major domestic building contract as:

a domestic building contract in which the contract price for the carrying out of domestic building work is more than $5000 (or any higher amount fixed by the regulations).

49 Accordingly, the definition of a major domestic building contract focuses upon the substance of the works to be carried out under the contract, rather than the manner in which the contract is described. Section 137B(1)(b) expressly excludes works carried out under a major domestic building contract from the operation of ss 137B(2) and (3) of the Building Act.

50 Section 136(2) of the Building Act provides that it is an offence for a builder to carry out domestic building work without domestic building warranty insurance. However, that prohibition that does not concern the applicants, as it imposes obligations upon builders, not owners. The Building Act provides no sanction for any other party involved in carrying out domestic building works without the required insurance, such as an owner or mortgagee in possession, save as provided for under ss 136 and 137B of the Building Act. The Building Act is also silent as to the impact of lack of insurance upon the validity of any contract of sale entered into by the owner of a building where building works have been carried out without the builder obtaining domestic building warranty insurance, where the owner is not an owner-builder.

51 Section 137B(4) of the Building Act provides that a person who entered into a major domestic building contract for the construction of more than four homes may, with the consent of the builder, apply to the Director of Consumer Affairs to exempt the builder from the requirement to be covered by domestic building warranty insurance. This would be an option open to Joybay, given that it owns multiple apartments, but it would have no practical effect, save for reducing the exposure of the builder to prosecution under s 136 of the Building Act. Such an application would have no impact upon the ability of the applicants to sell the apartments, or their exposure to any penalty, given my finding that the applicants are not exposed to the penal provisions of s 137B of the Building Act.

52 In his submissions in support of the application for leave to appeal, counsel for the applicants submitted that a finding that s 137B did not apply to the apartments, such that there was no entitlement on the part of the applicants to apply for an exemption under s 68 of the DBCA creates an unfortunate gap in the building legislation, which can be remedied by construing s 68 as enabling any person to apply for an exemption from the requirement to obtain domestic building warranty insurance.

53 I accept that the Court must endeavour to construe legislation in such a way as to give effect to its purpose, and to promote its harmonious operation. In the current case, given the plain language of the relevant provisions, while the reference to 'any person' in s 68 of the DBCA extends the class of persons beyond owner builders, it cannot extend to those who are, by reason of the express exclusions in s 137B(1) of the Building Act, not subject to the operation of s 137B in the first place. Section 137B(1) expressly, and in plain language, excludes works carried out under a major domestic building contracts from the operative provisions of s 137B, presumably on the basis that the drafters of the original Act assumed that the obligations imposed by, among other provisions, ss 24A(1), 135, and 136 of the Building Act upon building surveyors and builders would be effective in ensuring that all major domestic building works carried out by registered builders would be covered by domestic building warranty insurance.

54 Accordingly, the ordinary grammatical meaning of the words in s 137B of the Act means that the obligations ordinarily imposed upon owners of buildings or renovated within the previous six and a half years do not apply where the building works were carried out by a registered builder pursuant to a major domestic building contract. Setting aside for the moment the condition imposed upon the applicants by the Board, any subsequent purchaser would have no recourse to insurance in the event that the applicants had no assets to meet any claim for breach of the statutory warranties conferred by the building legislation. In my view, it is improbable and inexplicable that the legislature could have intended to leave such a gap in what is important consumer protection legislation.

55 However, the task of statutory construction is not limited to discerning the plain or grammatical meaning of the words used in a statute. As noted by Kiefel CJ and Keane J in The Queen v A2; The Queen v Magennis; The Queen v Vaziri,[11] a decision delivered while judgment was reserved:

Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. "Mischief" is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve.[12]

None of these cases suggest a return to a literal approach to construction. They do not suggest that the text should not be read in context and by reference to the mischief to which the provision is directed. They do not deny the possibility, adverted to in CIC Insurance Ltd v Bankstown Football Club Ltd, that in a particular case, "if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance". When a literal meaning of words in a statute does not conform to the evident purpose or policy of the particular provision, it is entirely appropriate for the courts to depart from the literal meaning. A construction which promotes the purpose of a statute is to be preferred.[13]

56 Indeed, in some cases, although not many, it is permissible and appropriate to read words into a statute in order to best give effect to the ascertainable legislative intention underpinning the relevant statutory provision.

57 The principles governing the occasions when it is permissible to read words into a statute to give effect to the intention of the legislature are set out in the decision of the Court of Appeal in DPP v Leys,[14] which referred to the following prerequisites:

(a) the Court must know the mischief the relevant statute was intended to address;

(b) the Court must be satisfied that by inadvertence the drafters and the legislature had overlooked, and thus omitted to deal with, an eventuality which must be dealt with if the purpose of the Act was to be achieved;

(c) the Court must be able to state with some certainty what words the drafters would have used and the legislature would have approved to overcome the omission if its attention had been drawn to the defect before the enactment of the relevant statute; and

(d) the modified construction must be reasonably open, that is, it must be possible to 'read in' or imply the additional words into the relevant statutory provision without giving to the provision an unnatural, incongruous or unreasonable construction, and the provision as modified must produce a construction that is in conformity with the statutory scheme.[15]

58 These principles are relevant to the current application, as it seems to me that the only way to achieve the outcome contended for by the applicants (and, I accept, intended by the legislature) would be to read words into s 137B(1) of the Building Act.

59 I accept that the clear intention of the legislature is to ensure that all major domestic building works, and the warranties implied into all major domestic building contracts, are covered by domestic building warranty insurance. The building legislation contemplates that all domestic building works will be carried out by either registered builders, owner builders, or major residential developers. The obligations imposed upon registered builders are designed to be secured by, among other things, s 136 of the Building Act. The obligations of owner builders are designed to be secured by ss 137B, 137C, and 137D of the Building Act, (which also provides a mechanism by which major residential building developers can be exempted from the requirement to hold domestic building warranty insurance), save that s 68 of the DCBA provides an exemption to owner builders (or their successors in title) in exceptional circumstances, or where it would cause hardship. The terms of s 24A(1) of the Building Act, which prohibits a building surveyor from issuing a building permit for domestic building works in the absence of the required insurance, provide an additional safeguard.

60 As noted in the applicants' supplementary submissions:[16]

The regulatory schemes imposed by both the Building Act and the DBC Act, insofar as they relate to Domestic Dwellings are clear; it is to ensure that domestic dwellings are constructed to proper standards and provide protection to both owners and subsequent purchasers of such dwellings (if those dwellings are purchased within six and a half years of the date of the issue of a Certificate of Occupancy) with a form of protection in the event of defects arising in the dwelling within that time.

61 I agree that there is a gap in the building legislation, which is illustrated by the circumstances of the current case, that is, where the safeguards imposed by the relevant provisions have failed, if s 137B(1)(b) is to be given its literal construction. The gap is in the protection afforded to consumers under the building legislation, in that the building legislation imposes no obligations upon parties in the position of the applicants in the current case to hold domestic building warranty insurance. Absent any amendment by the legislature, the gap can only be remedied by reading words into s 137(1)(b) of the Building Act. Section 68 of the DCBA cannot be construed in order to enable the applicants to apply for an exemption from obligations to which they are not subject in the absence of any modification of s 137B(1)(b) of the Building Act. The question is whether the reading in of qualifying words is permissible in accordance with the prerequisites laid down by the Court of Appeal in DPP v Leys.[17]

62 The applicants in their supplementary written submissions submit that, while it is unusual, it is permissible and appropriate for the Court to read in the words 'where the works are covered by the required insurance', as the requirements of the test set out in DPP v Leys[18] are met.

63 I agree. First, as discussed above, the legislative intention behind the amendments to the Building Act by the original Act are clear: being to ensure that owners and subsequent purchasers of new and renovated homes are protected by insurance for a period following the completion of domestic building works.

64 Secondly, and further to the above, I am satisfied that the legislature did not intend that, in circumstances such as the current case, parties in the position of the applicants in this proceeding would be able to sell newly constructed or renovated residential buildings without domestic building warranty insurance. As noted above, the building legislation has a number of safeguards to prevent this occurring, by imposing penalties upon builders and building surveyors who carry out such works, or permit such works to proceed. It seems to me to be highly unlikely that the legislature intended, in cases where those safeguards have failed, to allow residential dwellings to be sold without domestic building warranty insurance. I have no doubt that if the drafters of the original legislation had turned their minds to circumstances such as those in the current case, s 137B(1) would have been amended to include the words I propose to read into s 137B(1)(b) of the Building Act.

65 Thirdly, while I consider that it is theoretically possible that another mechanism or device could be used to achieve the desired result, the insertion of the words 'covered by the required insurance' into s 137B(1)(b) seems to me to be the simplest way of achieving the objectives of the legislature. While the building legislation strives to ensure that all domestic building works carried out by registered builders is covered by the required insurance, s 137B of the Building Act is directed at parties other than builders commissioning or carrying out domestic building works. Further, it is this provision which invokes the exception under s 68 of the DBCA, which I agree is an exemption which may appropriate to be invoked by parties in the position of the applicants.

66 Finally, the proposed modified construction of s 137B(1)(b) is not only reasonably open, but rather, having regard to the objects and the statutory scheme of the building legislation, is actually necessary to address a gap in the building legislation which has been identified by the current application, keeping in mind the fact that the building legislation is important consumer protection legislation, and the proposed construction of s 137(1)(b) of the Act strengthens, rather than diminishes, the protections conferred upon purchasers of newly built or renovated properties.

67 Accordingly, I consider that it is permissible, indeed necessary to construe s 137B(1)(b) of the Act in the terms indicated above. This leaves the question as to whether, notwithstanding the reference in the heading of s 68 of the DBCA to owner builders, the applicants are eligible to apply for an exemption from the requirements of ss 137B(2) and (3) of the Building Act. The question of construction of s 68 boils down to one issue: whether the reference to owner builders in the heading of s 68 of the DBCA confines the reference to 'A person' at the commencement of s 68 of the DBCA to owner builders.

68 Section 68 of the DBCA was enacted in its current form in 1995, with the passage of the original Act. Accordingly, s 36(2A) of the Interpretation of Legislation Act 1984 (Vic), which applies to statutory provisions enacted after 31 December 2000, does not apply, such that the common law applies with respect to the relevance of headings for the purpose of statutory interpretation. At common law, while a heading to a section may be used as an aid to construction, it does not form part of the statute. Further, a heading must give way to the text of a statutory provision if it conflicts with an otherwise unambiguous provision in the statute[19], and cannot be used to impose an unnaturally constricted meaning upon the words of those substantive provisions[20].

69 Section 68 is expressed in very broad terms: that is, 'any person' may apply for an exemption. As discussed earlier in these reasons, one might expect that the drafters of the original Act assumed that in most, if not all cases, the only parties needing to apply for an exemption under s 68 of the DBCA would be owner builders. However, given the overarching scheme of the building legislation, allowing s 68 of the DBCA to be confined by the language of the heading would be unduly restrictive. Rather, the eligibility for exemption should be open to all parties caught by the operation of s 137B of the Building Act, properly construed. If the applicants are caught by the operation of s 137B of the Building Act, they should be eligible to apply for an exemption from its terms in the same manner as any other person caught by the operation of s 137B of the Building Act.

70 Further, on my preferred construction of the building legislation, the applicants have standing to apply for an exemption under the Act. I accept that the applicants are entitled to an exemption from the requirements of s 68 of the DBCA. First, it is apparent from the factual matters referred to the these reasons that there are exceptional circumstances. Secondly, while s 68(2)(a) and (b) are expressed in the alternative, I also accept that full compliance with s 137B is impossible. The evidence is that the applicants, or more accurately, the builder engaged by the applicants, has been unable to procure domestic building warranty insurance for the apartments. Given that the original builder completed the building works some nine years ago, is bankrupt and carried out the building works in contravention of s 136 of the Building Act, I can readily infer that it would be practically impossible for the original builder to apply for domestic building warranty insurance, even if he could be persuaded to do so. The requirements of s 68(2) of the DBCA have been met.

71 Accordingly, I will grant leave to appeal and allow the appeal. In doing so, I note that there was no error in the reasoning of the Senior Member; indeed, I agree with the Senior Member that, on a plain reading of the words of s 137B of the Building Act, the applicants were not eligible to apply for an exemption under s 68 of the DCBA, as they were not parties upon whom were imposed obligations under s 137B. The contention that it is possible to read words into s 137B(1)(b) to extend the operation of s 137B to parties in the position of the applicants was not advanced before the Senior Member.

72 The fact that these reasons address different issues not raised before the Senior Member is not an insurmountable barrier to granting leave to appeal, or indeed, to allowing the appeal.

73 The jurisdiction of this Court to grant leave to appeal under s 148 of the VCAT Act is founded upon the identification of a question of law.[21] Here, the question of law was stated in very broad terms: that is, 'whether the [applicants] by reason of s 68 of the [DCBA] are entitled to an exemption from the operation of s 137B of the [Building Act]?'

Despite their jurisdictional significance, fairness requires that the Court will not read a notice of appeal or other originating process narrowly and will address questions of law that are identified in the document stating grounds of appeal and perhaps also from surrounding circumstances. Even where a notice of appeal or originating process fails altogether to state questions of law, it is therefore still necessary to decide whether questions of law are none the less articulated by reference to the document as a whole.[22]

75 Further, given that there is no contradictor to the current application, no issue of procedural fairness arises in determining the application on grounds not advanced below, or grounds other than those advanced in the proposed notice of appeal. Finally, in determining the application for leave to appeal, and the appeal, it is significant that this Court is exercising its supervisory jurisdiction. As stated by the Court of Appeal in Cosmopolitan Hotel (Vic) Pty Ltd v Crown Melbourne Limited:[23]

... courts will not read a notice of appeal narrowly so as to oust the appellate jurisdiction of VCAT.[24]

76 Turning now to the form of orders, I will make declarations consistent with these reasons. I will, however, remit to VCAT, being an expert tribunal with respect to the domestic building industry, the question of whether any conditions should be imposed upon the applicants' exemption from s 68 of the DBCA, and the nature of any such condition.

77 Accordingly, I will grant leave to appeal and allow the appeal. I will hear further from counsel regarding the form of order to give effect to these reasons, and the question of costs.

[1] Section 24A was introduced into the Building Act by the Building (Amendment) Act 2004. The evidence suggests that the construction of the apartments commenced in about 2007. It may well be the case that the building permit was issued when it was contemplated that the building works were purely commercial in nature, and no amended permit was applied for when EPG's plans for the building changed.

[2] Clause II (b) of the Board's determination.

[3] That much is also apparent from the discussion between the Senior Member and Counsel recorded in the transcript of the hearing before the Senior Member.

[4] Justice Legislation Amendment (Court Security, Juries and Other Matters) Act 2017, s 31(3).

[5] The reference to 'Tribunal' in the title was removed after the transfer of the dispute resolution jurisdiction to VCAT.

[6] Explanatory Memorandum, Domestic Building Contracts and Tribunal Bill 2015 (Vic), pp. 19-21.

[7] [2013] HCA 2; (2013) 252 CLR 1.

[9] [1998] HCA 28; (1998) 194 CLR 355.

[11] [2019] HCA 35.

[14] [2012] VSCA 304; (2012) 44 VR 1.

[16] The applicants' supplementary submissions were filed in response to their attention being drawn to the decision of the Court of Appeal in DPP v Leys [2012] VSCA 304; (2012) 44 VR 1. For completeness, I will grant the applicants leave to amend their notice of appeal accordingly.

[17] [2012] VSCA 304; (2012) 44 VR 1. The test laid down by the Court of Appeal was acknowledged by the High Court in Taylor v The Owners - Strata Title Plan no 11564 [2014] HCA 9; (2014) 253 CLR 531.

[18] [2012] VSCA 304; (2012) 44 VR 1.

[19] Silk Bros Pty Ltd v State Electricity Commission of Victoria [1943] HCA 2; (1943) 67 CLR 1. See the discussion in Pearce & Geddes, 'Statutory Interpretation in Australia' (6th ed, 2006, LexisNexis).

[20] Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594, 601.

[21] Coliban Heights Pty Ltd v Citisolar Vic Pty Ltd [2018] VSCA 191 [38].

[23] [2014] VSCA 353; [2014] 45 VR 771.