The applicant ('owner') owns a 2-bedroom, 2 storey attached townhouse which was built by the respondent ('builder'). The two bedrooms are on the first floor. There is a compact balcony at the rear of bedroom 2, at the rear of the first floor. The balcony sits above the large meals / living area at the rear of the ground floor, which opens out onto the rear garden. The ground floor kitchen sits underneath bedroom 2. The balcony is a long way from the master bedroom which is also on the first floor.
On 5 August 2024 the Tribunal determined this proceeding in favour of the owner against the builder, with damages to be determined.
The assessment of damages was listed for 30 October 2024. The hearing date was changed to 1 July 2025. At that hearing the respondent applied for an adjournment of the hearing of the assessment of damages. My Order of 1 July 2025 set out the history of the proceeding leading to the determination of liability on 5 August 2024, and the apparent inadequacy of the grounds for the builder's application for the adjournment. I adjourned the builder's application for the adjournment, and made directions that by 23 July 2025 the builder was to file and serve an affidavit or statutory declaration by a director in support of the application for the adjournment, giving evidence of the facts relied upon. The Order said that if the builder filed and served that material, the owner could reply by 6 August 2025, but that if the builder did not file and serve that material it would be deemed to have withdrawn its application for the adjournment and the hearing of the assessment would proceed on 11 August 2025.
The builder did not file or serve an affidavit or statutory declaration by 23 July 2025, or at all.
The builder did, however, file and serve - by email at 2:24pm on Sunday, 10 August 2025 - a report by Mr Jordan Karantonis, Structural and Civil Engineer, dated 10 August 2025 addressing the defects in respect of which the owner was seeking damages.
At the hearing on the afternoon of 11 August 2025 both parties appeared. Mr Jordan Karantonis attended to give evidence. The owner did not have at the hearing Mr Leopold Chung, who was the Structural and Civil Engineer who had prepared a report dated 22 May 2023 upon which the owner relied.
I began the hearing by asking the owner whether he intended to call Mr Chung, and he said that he did not. This was unsurprising as the owner did not know that the builder had even engaged an engineer until the afternoon of the day before the hearing, which for good measure was a Sunday.
This raised an issue of procedural fairness.[1] I explained to the parties that the Tribunal was not bound by the rules of evidence[2] and so - unlike a Court - it 'could' receive Mr Chung's report into evidence[3] but that proceeding in his absence would mean that Mr Chung would not be able to say to the Tribunal on oath or affirmation that his report was true and correct and that it reflected his expert opinion, or for example that he wished to correct it or supplement it in some respects, and also that the builder could not cross-examine him.[4] These matters might result in the Tribunal giving Mr Chung's report less weight than it otherwise would have.
It was also the fact that the builder had filed and served the report of Mr Karantonis without leave, extremely late, and that Mr Karantonis even said in his report that he hoped the Tribunal would exercise its discretion to consider his report.
The owner said that he wanted to proceed with the hearing. As he had done on 1 July 2025 when the builder sought the adjournment of the assessment of damages, the owner said that he had waited a very long time to have a hearing and he submitted that the builder had generally failed to engage in the Tribunal proceedings.
The builder was also prepared to proceed. In his report Mr Karantonis replied to and commented upon Mr Chung's report, so there was no question of the builder being taken by surprise by the owner relying on Mr Chung's report.
Whilst I accept that it is not simply up to the parties to determine whether it is appropriate to proceed where the Tribunal's procedures are not complied with, particularly when the parties are self-represented,[5] I also recognise that in cases involving relatively small sums it is commercially understandable that parties may wish to have their dispute determined on the basis of the evidence they present, rather than being sent away to incur further costs and delay, particularly as the Tribunal is required to conduct proceedings with as little formality and technicality, and to determine each proceeding with as much speed, as a proper consideration of the matters before it permits.[6]
I ruled that the hearing would proceed.
I accept Mr Chung's report as setting out his observations and opinions as a Structural and Civil Engineer. He set out his professional qualifications and experience in his report, and in Appendix C acknowledged his obligations to the Tribunal as an expert witness and his compliance with Practice Note PNVCAT2.
Mr Karantonis gave evidence on oath and verified that his report was true and correct and reflected his expert opinion, and that he did not seek to correct or alter it in any respects. He included in the report a statement of compliance with Practice Note PNVCAT2.
Mr Karantonis stated in his report that he had not inspected the property but had prepared his report solely on the basis of his perusal of documentation, and his examination of relevant building standards, codes and statutes. He also wrote that he provided reasonable assessments of quantum for any items which he regarded as being validly claimed by the owner. He described his methodology as being to carry out a desktop review, including an analysis of Mr Chung's report, photographs and chronology.
I find that both Mr Chung and Mr Karantonis are qualified to give evidence as Structural and Civil Engineers.
The owner cross-examined Mr Karantonis at some length. In my view Mr Karantonis answered the owner's questions without evasion and generally maintained the positions that he had disclosed in his written report. He did, however, make a concession in relation to a missing flashing on one of the external doors. Mr Karantonis said that he acknowledged that a flashing was missing, and he said that in his view flashing could be fitted for $570.00.
One aspect of Mr Karantonis' evidence given in cross examination was that his professional experience includes advising insurers in relation to defect claims against builders. He described how he considered such claims. As the owner makes a claim in relation to the allegedly leaking compact balcony at the rear of bedroom 2, Mr Karantonis said that when he advises an insurer in relation to a balcony he carries out a number of steps including carefully measuring the levels on the balcony to see whether it has a 1 in 100 fall towards the drain; checking for cracked tiles and damaged grout; checking to see whether the occupant of the premises has been maintaining the balcony, by observing whether there is evidence of pot plants on the tiles. After giving this background Mr Karantonis said that he did not consider that Mr Chung presented 'evidence' which would convince him that the builder was liable to the owner.
The problems with this evidence from Mr Karantonis was that liability has already been determined and the builder has not sought to overturn that determination; that the builder first engaged constructively in this Tribunal proceeding when it appeared at the assessment of damages hearing on 1 July 2025 but then failed to present any material by way of affidavit or statutory declaration to verify the assertions that it had put forward on that day in support of its application for an adjournment; and of course that Mr Karantonis' expertise is in engineering not in the law and it is not his role to determine whether the owner has satisfied his burden of proof. So, without reading Mr Karantonis' report in an unduly pedantic way, I disregard his conclusions on legal issues. In any event, Mr Karantonis' statement that there is a 'two-year limitation of actions period' affecting property owners' claims against builders was an error. It is likely in my view that Mr Karantonis was seeking to allude to statements about inspections in the Guide to Standards and Tolerances.
After Mr Karantonis' cross-examination Mr Issa of the builder gave some evidence on oath. He properly sought to focus on the assessment of damages, although in the course of his evidence he made a number of self-serving statements which the owner disputed. The comments made by Mr Issa, which were relevant to the assessment of damages, were really confined to the matter of time. The owner's claim is certainly not statute barred. Mr Issa's evidence, seen in that light, was to the effect that the owner purchased the house at an auction in August 2016 and settled the purchase in March 2017. The builder rectified some minor matters after settlement, but then did not hear from the owner for some 4 years and has learned that during that period the owner had leased the house to tenants. Mr Issa argued that matters which the owner was seeking to categorise as building defects were instead matters of wear and tear inflicted on the property by the tenants, or matters requiring maintenance by an owner.
The owner responded to Mr Issa's arguments by denying them, particularly denying the assertions that the builder had been cooperative and had rectified some defects, as well as denying the purported distinction between defects and matters requiring maintenance. It should be said that the builder's failure to engage in the Tribunal proceedings until 1 July 2025, which led to the determination of the case on liability, included the builder's omission to give any discovery of documents. Whilst the builder served Mr Karantonis' report on the owner the day before the hearing, the builder did not take the opportunity to give discovery of documents even at that late stage, so that none of Mr Issa's claims of the builder cooperating with the owner were verified by objective evidence.
It is clear from the owner's oral evidence and the pages of evidentiary documents filed and served by the owner between the commencement of the proceeding and the hearing of the assessment of damages that the owner rented out the house between a date shortly after settlement of the purchase and February 2021. When tenants were renting the property, they were making complaints to the owner's estate agents about the bifold doors, as well as maintenance items which are irrelevant to this proceeding, and at least one of the owner's tenants moved out of the property out of frustration at the continual unsatisfactory performance of the bifold doors.
I now proceed to assess the owner's damages in light of the report of Mr Chung, the report of Mr Karantonis and his oral evidence, and the evidence given orally by Mr Issa as responded to by the owner.
[2]
THE 12 DEFECTS ASSERTED BY THE OWNER IN HIS POINTS OF CLAIM AND IN HIS PARTICULARS OF LOSS AND DAMAGE, AND THE MONETARY CLAIMS AS STATED BY MR CHUNG
[3]
Repairs carried out by the owner, and paid for:
[4]
Builder's response, based on Mr Karantonis evidence
[5]
Gate replacement: security, backyard and front gate
[6]
Electrical wiring for security system and home system
[7]
I now discuss the disputed items.
Mr Chung's report is dated 22 May 2023, which is at least 3 years after the most recent repair carried out by the owner. In paragraphs 3.3 and 3.4 of his report Mr Chung set out the instructions he had received from the owner, including the owner's description of the items which he had had repaired. The substance of the owner's oral evidence was that he had given accurate descriptions to Mr Chung, so that Mr Chung's statement of his instructions was correct. Further of course the owner had prepared the Points of Claim and the Particulars of Loss and Damage, given discovery of invoices evidencing payments made to contractors to carry out repairs, given discovery of quotations, and section 136 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) prohibits a person from knowingly giving false or misleading information to the Tribunal.
[8]
Item 2, 22 March 2018 side gate repairs $154.00
[9]
In September 2024 the owner had filed and served 120 pages of evidentiary documents and included in that bundle was an email from the owner's estate agent to the owner in which the agent advised that it had engaged a tradesperson to repair the side gates at a cost of $154.00. The agent did not pass on the tradesperson's invoice, but this is sufficient evidence of this expense having been incurred and paid.
Mr Karantonis' desktop review methodology did not enable him to make any statement which, objectively, supported his view that the owner's claim should not succeed.
I award $154.00 in respect of this item.
[10]
Item 3, 22 March 2018 air-conditioning repairs $291.00
[11]
The owner's bundle of evidentiary documents also contained an invoice from Danicon Pty Ltd dated 12 December 2017, addressed to the estate agent who was managing the property on behalf of the owner. The invoice was for a callout/service fee of $189.00 including GST. On this invoice Danicon wrote that at the time of their inspection the air-conditioner was about one year old; that the owner's tenant had previously complained about the same issue - leaking; and that 'Whilst on site (we) put nitrogen and a gush of water came outside through drainpipe. It is most likely that the drainpipe is kinked or was not installed properly. Remove the blockage this time. If same problem occurs again we advise go through builder/warranty'.
This text in this invoice is the best evidence of the state of the air-conditioner, which is that an air-conditioning installer thought it most likely that the drainpipe was kinked. There is no evidence putting a contradictory position. Mr Karantonis' desktop review methodology did not enable him to counter the owner's evidence. Obviously, the author of this invoice was not called to give evidence, and after 8 years one wonders whether their recollection would be very vivid anyway. As liability has been determined, on the basis of this evidence I find it more likely than not that the air-conditioner was defectively installed, and that $189.00 was incurred by the owner as a result. There is no written evidence filed by the owner in relation to a figure of $291.00.
I award $189.00 in respect of this item.
[12]
Item 5, 12 August 2019 gate strike repairs $300.00
[13]
The owner had filed and served an invoice from Oakleigh Locksmiths Pty Ltd dated 21 May 2019 in the sum of $300.00 including GST. The narration on the invoice was, 'sliding door - realigned strike and pack out and key', and 'upstairs bedroom replace hand set' - parts $40.00 for each; labour $100.00; service call $120.00. The invoice is marked 'Paid'. That is, the invoice is not related to the gate.
Given the absence of any contradictory evidence as to this expense being incurred, or to the effect that the owner was overcharged, I find that the owner incurred this expense.
However, I accept Mr Karantonis' submission that adjustments to a striker are a maintenance item.
I am not persuaded that the owner has suffered damages of $300.00 related to the gate for which the builder is liable. I disallow this part of the claim.
[14]
Item 6, 10 February 2020 replacement of air-conditioner $3,470.00
[15]
The owner had filed and served an email dated 10 February 2020 from the estate agent who in 2020 managed the property as a rental property on behalf of the owner, Space Property Co. In that email the author wrote that an air-conditioning technician had attended the site to inspect the Mitsubishi split system. The technician found the system to be short on refrigerant gas, and to have a broken panel. The panel was not a part which could be purchased separately anymore. The technician quoted $1,169.00 including GST to carry out repairs, on the basis that further testing could show that there were additional leaks, in which case an additional callout fee of $220.00 would be applied plus further costs for further repairs. Alternatively, the technician could supply and install a new Fujitsu split system for $3,470.00 including GST.
The owner opted for the second alternative. He gave written instructions to the estate agent to proceed. The owner has not given discovery of an electronic funds transfer or the like evidencing this payment, but when estate agents manage investment properties they commonly pay for maintenance and repair expenses incurred on the landlord's instructions out of the tenant's rent. Ultimately the effect of diverting funds in this way is that the expense is borne by the landlord. I am satisfied that the owner paid $3,470.00 including GST to replace the air-conditioner.
In substance the builder argued that this claim was not proven; that air-conditioning units are in effect consumables and require replacement occasionally; that if the air-conditioning unit was defective the owner could have made a claim under the manufacturer's warranty, rather than waiting several years to sue the builder.
The technician's observation that a panel on the air-conditioning unit was broken seems to me to establish that this was caused by human intervention, and that the air-conditioning unit was not installed with a broken panel. As the builder was not in possession of the property after the sale in 2017, whoever broke the panel was not the builder.
There is no evidence that if there was a kink in the air-conditioning unit's drainpipe that it would cause the unit to fail.
Obviously there is no available evidence of the amount of time that the air-conditioning unit was used. On balance I am not persuaded that the owner's payment to replace the air-conditioner is an element of damages caused by any breach of obligation by the builder. I disallow this part of the claim.
[16]
Item 7, 9 October 2020 replacement of bifold doors $8,300.00
[17]
The owner filed and served a quote given by City Handyman on 19 September 2017 to the estate agent which was then managing the property on behalf of the owner, as a rental property. The quotation was for $2,337.00 including GST. The quoted work was to repair balcony doors, which City Handyman had inspected and found to have split top and bottom rails, and be waterlogged and weathered, and the bifold doors to have a gap between them which caused a draught. The quotation was for the replacement of the doors, and the disposal at the tip the old doors and materials.
The bundle of documents filed and served by the owner in September 2024 also contained a series of emails between the owner and his estate agent, in which the estate agent was reporting that the builder had promised to repair the bifold doors but over many months had failed to do so. In late January 2018 the owner's tenants told the agent that they would vacate the property as they were frustrated with the persistent failure of the owner as landlord to repair defects.
In the same bundle is email correspondence from Space Property Co, which had replaced the previous estate agent, to the owner in May 2019 reporting that the new tenant in the property was complaining about the bifold doors not operating properly, jamming, being hard to close, and causing draughts. In the same bundle is further email correspondence from Space Property Co to the owner in late January 2020, basically setting out the same complaints about the bifold doors.
The owner had filed and served an invoice issued by Precision Window and Door Replacement of Narre Warren dated 9 October 2024 for $8,300.00, for the replacement of the bifold doors.
Mr Karantonis' report contained a submission that the builder should not be held liable. I make no criticism of Mr Karantonis being 'partisan' in this respect, and I think that his view is greatly influenced by his experience in advising insurers in relation to building matters. Mr Karantonis ran an argument that the builder had repaired the doors shortly after settlement and that thereafter there was no evidence that flashing had been installed, and that in his opinion the lack of a flashing caused the problems with the doors. This argument is not based on objective facts. However, assuming it to be true that the builder repaired the doors and left them without a flashing, then Mr Karantonis' argument would actually favour the owner because it would suggest that the builder's repair of the doors was defective.
On the whole this is a contest between convincing evidence on the part of the owner that the bifold doors were defective, failed to perform properly, could not be repaired, and were replaced on the one hand, and a recreation without a factual basis on the other. I am satisfied that the owner suffered damages of $8,300.00 for which the builder is liable.
This is the largest item in dispute and was the most hotly contested.
In 2024 the owner filed and served a quotation from Plenty River RV dated 29 July 2024, for $19,228.00 including GST, of which $18,700.00 including GST was for 're-waterproofing of external flashing and balcony'. This document is stated to be an invoice, but it has not been paid and it can only be understood as a quotation, which was not accepted by the owner.
On 4 August 2025 the owner filed and served a quote by ARC Building Services Pty Ltd in the sum of $23,650.00 including GST. The quotation said that the repairs required to address water ingress into the building 'due to incorrect waterproofing of the balcony which was not compliant with AS 4654.2 or NCC Vol 2' was, 'Removal of tiling and screed layer, check for damaged joists or structure beneath, alter grading on substrate to allow appropriate degree of fall to drain, surface preparation 2500 mm x 1300 mm for waterproofing, apply waterproofing membrane and provide waterproofing compliance for works undertaken, re-tile surface and finishing'.
The quotation also said that the quoted price 'assumes no structural damage from water ingress to below structure. If during works structural damage is found, alternate plan will need to be made to address issue and revised quote will need to be provided'.
As the owner wanted to proceed with the hearing of the assessment of damages, I proceed on the basis that he has accepted the risk of bearing additional cost of repairs, if structural damage is discovered.
Mr Chung's report is stated in several paragraphs to have been based on a 'visual and non-invasive investigation'.
In relation to item 8 Mr Chung said, at paragraph 7.2 iv, 'The balcony floor tiles should be removed to ascertain the balcony waterproofing condition', however these other comments by him, which I quote, also relate to item 8:
Water stains were discovered in multiple areas of the living room ceiling, accompanied by the presence of mould and a sagging ceiling. Use of a thermal imaging camera revealed that the moisture levels in the affected ceiling areas were actively high. Upon inspection of the roof exterior, it was observed that the flashing was poorly installed, with visible gaps identified in several areas.
In bedroom 2, the carpet near the balcony sliding door was found to be wet. The use of a thermal imaging camera clearly indicated that the affected area had a high moisture level.
The flooring of the upstairs balcony was observed to be developing mould, indicating the presence of trapped moisture beneath the flooring tiles. We were informed that water ingress had occurred on multiple occasions, further supporting the likelihood of moisture buildup in the balcony area.
In the kitchen area, water was observed to be dripping from the hanging light pendants. The source of the leaks could not be determined with certainty. Therefore, we recommend conducting an invasive inspection to assess the condition of the floor joists and investigate the cause of the leak . [In paragraph 7 Mr Chung notes the kitchen is on the ground level of the house].
I note here that the owner has not had any invasive tests done on the balcony.
On page 22 under the heading Balcony Conditions Mr Chung wrote,
[20]
Before the site inspection, we were informed that there have been multiple instances of significant water ingress from the balcony. This water ingress has resulted in damage to the bedroom carpet and belongings on multiple occasions. If the weather-tightness of the windows, doors and balcony flooring is not functional and allows water entry when the sliding doors are closed, it would be considered the builder's defect. Additionally, a leaking waterproof balcony is also considered a defect according to Building Code of Australia and AS 4654.2. The mould growth on the flooring tile could possibly indicate the active moisture trapped under the tiles for a prolonged period". [Emphasis added]
[21]
Under this paragraph are 5 photographs of dirty tiles. Mr Karantonis says - and I agree - that a semicircular mark on the tiles appears to be consistent with a pot plant having sat on the tiles. The photographs of themselves do not prove that the tiles were mouldy when the photographs were taken or subsequently. If the tiles have mould on their surface, the photographs do not prove that the mould has come from below. The tiles have not been analysed by Mr Chung and there is no express commentary from him to the effect that mould had or could penetrate the glazed surface of the tiles.
On page 23 under the heading Living Room Mr Chung wrote,
[22]
During the site inspection, water stains were discovered in multiple locations on the ceiling, accompanied by the presence of mould and a sagging ceiling. The use of a thermal imaging camera revealed thermal anomalies in these areas, indicating a significant amount of moisture still present in the ceiling plastering.
[23]
Under this paragraph are 10 photographs of the living room including of its ceiling, and water stains of perhaps 1 sq m are clearly visible on the ceiling.
On page 27 under the heading Bedroom 2 Mr Chung wrote,
[24]
During the site inspection, we noticed that the carpet section towards the balcony area was wet and upon thermal imaging assessment, it appears that there was active moisture in the carpet. The client reported that the water ingress issue occurred despite the sliding door being closed.
[25]
Under this paragraph are 5 photographs of Bedroom 2, the most important of which are two photographs which show the thermal imaging device being used.
Mr Karantonis' evidence on this item focused on submissions that Mr Chung had not carried out invasive testing or destructive investigation to confirm the exact membrane failure point, nor to determine whether the leak is a result of the original construction of the balcony or deterioration over time. He wrote that the Building Code of Australia and AS 4654.2 (to which Mr Chung also referred) require external balconies to be maintained, the membranes and sealants at junctions and penetrations inspected every 12 months, that debris from drainage outlets be cleared, and that any cracked tiles or damaged grout be addressed immediately. He wrote that there was no evidence that the balcony membrane, drainage outlets, or sealants had been maintained since the building was completed. He wrote that the observed leak was consistent with an aged membrane and clogged or deteriorated drainage details, not necessarily a latent defect from construction. He did not interpret Mr Chung's photographs as showing mould on the tiles.
Mr Karantonis wrote that if there was any waterproofing failure in the balcony, it did not follow that full replacement was warranted. A reasonable and proportionate approach was targeted remediation at identified leak locations, resealing of junctions, and localised tile or membrane renewal where required. Associated ceiling work should be limited to repairing the stained section following successful balcony remediation.
He concluded that the claimed cost of $22,000.00 (i.e., which was the figure stated in the Particulars of Loss and Damage, rather than in the quote by ARC Building Services) was unreasonable in the absence of clear evidence of membrane failure or construction non-compliance. He recommended that a payment of $2,500.00 be made to the owner on a goodwill basis.
Again, I make no criticism of Mr Karantonis being partisan or acting as an advocate for the builder, because I am satisfied that his approach is consistent with his professional experience of advising insurers. However, I think he has crossed the line in relation to this item and gone beyond the role of an expert witness. Whilst it is apparent that Mr Chung has not taken measurements of levels, I cannot accept Mr Karantonis' assertion that there is 'no evidence' supporting the owner's claim, when there are observations of damaged, sagging and mouldy areas of the ceiling, and the excessive moisture identified by Mr Chung using the thermal imaging camera. There is also the very obvious point that the meals / living area is directly below the balcony, and that bedroom 2 is adjacent to the balcony. On the balance of probabilities, it is more likely than not that the balcony is the source of this water entry.
The photograph which Mr Karantonis says is indicative of a pot plant having been on the balcony is insufficient, in my view, to amount to a defence. ARC Building Services says the balcony is 2500 mm x 1300 mm in area. Judging by the size of the semicircular shape in the photograph, if that was the mark left by a pot plant, I would be satisfied that the pot plant was not large. There is certainly no indication of there having been a massive, heavy pot plant on the balcony of sufficient heft to have caused damage to grout or tiles. Indeed Mr Karantonis focuses on what he says Mr Chung did not identify, rather than saying for example that his observations of Mr Chung's photographs revealed cracks in tiles or damaged mortar in the vicinity of the suspected pot plant. There is no evidence of some intervening cause, having taken place after the builder built the townhouse, causing the balcony to leak.
I am satisfied on the evidence, on the balance of probabilities, that the balcony is defective as a result of poor workmanship by the builder, and not that the balcony is failing to perform as a result of some intervening cause. As to the quantum, the best evidence is that of ARC Building Services. Mr Karantonis' suggestion that $2,500.00 be allowed to the owner is the sort of pragmatic, commercial approach that a person might adopt in a mediation or negotiation when putting a settlement offer. Objectively, it is not a finding of an expert witness that the owner's damages amount to $2,500.00.
I award $23,650.00 to the owner.
[26]
Item 9, plumbing repairs to basins and sinks $1,200.00
[27]
In his report Mr Chung states that in all bathrooms, the base of the sink was not sealed and caulked, and a visible gap is noted. The pipe penetration was not sealed or flashed properly. Every time the tap is turned on, the basin leaks into the cabinet. Mr Chung, at paragraph 6.1, adopts $1,200.00 as the appropriate quantum, but without giving an explanation as to how it is assessed.
The quotation from Plenty River RV dated 29 July 2024 which the owner mainly filed in relation to the re-waterproofing of the balcony, included a quote for $480.00 to 'refit basins and sink waste'.
This quotation is the best evidence of the cost of this repair.
Mr Karantonis stated his opinion that tapware and basin waste leaks are plumbing maintenance matters, and that such items require periodic resealing. He also asserted, incorrectly, that the owner's rights in relation to the basins and sinks was statute barred. On its own text, Mr Karantonis' report does not deal with the owner's claim because Mr Chung reported that the sinks were not caulked, which is an omission by the builder to complete the installation, whereas Mr Karantonis talks about maintaining sealing which has been installed. The two engineers are talking at cross purposes.
In the circumstances I award $480.00 to the owner.
[28]
Item 10, gate replacement: security, backyard and front gate $5,500.00
[29]
Mr Chung does not comment on this item, apart from adopting $5,500.00 as the cost. He does have a photograph of the entry gate on page 17 of his report, with the description, 'The entry gate latch could not reach the mounting plate as the frame post was installed too far (away)'. I accept that the entry gate and the front gate are the same thing. Mr Chung is not saying that the front gate has to be replaced. As a matter of logic, if the mounting plate and the post were too close together, that would be a more difficult problem than if - as Mr Chung has observed - the two are too distant. In that latter situation, something could be done to build up either the plate or the post, so that the gate latch worked. One would expect that this exercise would cost a few hundred dollars.
Mr Karantonis incorrectly asserts that this claim is statute barred, but his better point is that the conditions of which the owner complains are matters which should be dealt with as maintenance by a property owner. Because I am satisfied that Mr Chung is not saying that the gates need to be replaced, I accept Mr Karantonis' view. This means that the owner has not produced any evidence on quantum in relation to this item. I am not prepared to invent a cost of this repair and so I disallow this part of the claim.
[30]
Even given Mr Chung's report, there is no satisfactory evidence in relation to this item. Mr Chung refers to some timber window frames not being painted properly, but that is a different matter. He does not explain how $300.00 would be calculated.
Mr Karantonis essentially says that coatings need to be renewed periodically, so that this is not a defect.
It is now some 8 years since the owner acquired the property. I accept Mr Karantonis' view and disallow this part of the claim.
[31]
Item 12, electrical wiring for security system and home system $550.00
[32]
Mr Chung does not comment on this item. The owner has not filed a quote in support of the quantum.
Mr Karantonis says that, on the documents filed and served by the owner including Mr Chung's report, the owner saw an electrical wiring problem when he began occupying the property in 2021. He has never done anything about it. Mr Karantonis says that this is a maintenance item and not a defect.
I accept Mr Karantonis' view and disallow this part of the claim.
[33]
Adding the amounts conceded by the builder, to the amounts I have found to be due to the owner in the discussion above, I find that the total amount payable by the builder to the owner is $33,196.00.
[34]
The owner claimed $3,520.00 for loss of rent allegedly incurred as a result of building defects. This claim is unsustainable as a matter of law. There is no suggestion in any of the oral evidence, or the documents filed by the owner, that when the builder sold the townhouse in 2017 it knew that the owner was purchasing the townhouse in order to lease it out for profit and that it was foreseeable to the builder that if there were defects in the property that the owner's income from the property might be diminished.
Put at its most basic, the remedy available to the proprietor of domestic dwelling, for breach by the builder of its warranties of quality under the Domestic Building Contracts Act 1995 (Vic), are to be assessed by reference to the reasonable cost of repairing the defects.
I do not assess the owner as having sustained any damages which are compensable by the builder in respect of this item.
[35]
The owner paid the filing fee on the commencement of this proceeding, and $1,100.00 to Mr Chung for his expert's report.
Whilst costs do not follow the event in VCAT, the owner substantially succeeded in the proceeding.
Sections 115A and 115B of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) empower the Tribunal to order a party to reimburse fees paid by the opposing party. Section 115B(3) sets out the criteria to which the Tribunal must have regard when considering whether to make such an order. I am satisfied that the criteria under sub sections 115B(3)(b) & (c) warrant an order for reimbursement of the filing fee being made. First, as demonstrated by the matters set out in my order of 1 July 2025 and by the builder's decision not to file an affidavit or statutory declaration in support of its application for an adjournment, the builder failed to comply with numerous orders of the Tribunal without reasonable excuse and caused an unreasonable delay in the proceeding. Secondly, the result of the proceeding is that the owner substantially succeeded in it. That second criterion, under sub section 115B(3)(c) is somewhat unusual in that there could no result of the proceeding if the fee by which the proceeding was initiated were not paid. However, the criterion is there and the result of the proceeding was that the owner substantially succeeded.
As a self-represented litigant, any time or effort expended by the owner in prosecuting his case is not compensable by an order for costs. However, the expense incurred in engaging Mr Chung can be awarded to him within the concept of costs. Section 109 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) provides that the Tribunal can order a party to pay another party's costs, but only if it is fair to do so having regard to the criteria set out in sub section 109(3), which include whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding, the relative strengths of the claims made by each of the parties in the proceeding, and the nature and complexity of the proceeding. That last criterion, under sub section 109(3)(d) raises the question of whether the owner was justified in engaging Mr Chung. If he were not justified in doing so, then he should not be reimbursed for that expenditure. I am satisfied that it was necessary for the owner to engage Mr Chung. As to the other criteria, I am satisfied that by its extraordinary inaction before 1 July 2025 the builder was responsible for prolonging unreasonably the time taken to complete the proceeding, and that the strength of the owner's claim far outweighed the builder's position.
Accordingly, I order the builder to reimburse to the owner the filing fee of $523.10 and to pay the owner's costs of $1,100.00.