APPLICANTS Jennifer Marshall and Steven Marshall (Subject Land owners)

RESPONDENT Municipal Building Surveyor for Cardinia Shire Council

BEFORE Members J Shaw (panel chair) and P Jolly

CITATION Marshall & Anor v Municipal Building Surveyor for Cardinia Shire Council [2025] VBAB 137

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

1. Pursuant to sch 3, cl 16(2) to the Building Act 1993, the application by the Applicants for their costs of the proceeding to be paid by the Respondent is refused.
2. The proceeding is otherwise dismissed.

_______________________ ________________________

1. On 2 June 2025, the Building Appeals Board (the BAB) determined the appeal (Determination). The orders made by the BAB on that day gave the parties liberty to apply for costs. The Applicants now seek an order that their costs of and associated with this proceeding be paid by the Respondent.
2. The Applicants claim costs in the amount of $2,009.06 from the Respondent. The Respondent submits that no order for costs should be made.

1. The BAB has jurisdiction to order that one party pay another party's costs of a BAB proceeding. Clause 16(2) of sch 3 to the Building Act 1993 (the Act) states:

The determination may include any order as to costs that the Building Appeals Board, on the application of a party to the proceeding, considers is just.

Unless the Building Appeals Board otherwise determines, a party to a proceeding before the Board must bear his, her or its own costs.

1. In Stewart v Building Practitioners Board & Anor,[1] Gillard J considered the operation of cl 17 of sch 3 to the Act. His Honour stated:

...It is clear from clause 17 that the Board does have power to make an order for costs. It establishes a general rule, namely, that there should be no order as to costs. But, it is clear that the Board may, in appropriate circumstances, refuse to follow the general rule and make an order for costs. One looks in vain to find any criterion to guide the Board when application is made to override the general rule and order costs.

However, in my opinion, the presence of the general rule requires that circumstances must be established to override the general rule, and that means something more than being a successful party.[2]

1. Therefore, there is no presumption that costs will be awarded to a successful party in a proceeding before the BAB.
2. Accordingly, we approach the question of costs guided by the principle that there must be circumstances which override the general rule in proceedings before the BAB; namely, that the parties must bear their own costs, before it will consider making an order for costs.
3. This approach is consistent with the opinion of Bell J in Martin v Fasham Johnson Pty Ltd[3], in discussing the costs discretion of the Victorian Civil and Administrative Tribunal (another 'bear own costs' jurisdiction). In that case, his Honour stated that:

...The discretion must be exercised judicially, which means that the Tribunal must act fairly, impartially and by reference to relevant considerations and not arbitrarily, capriciously or by reference to irrelevant considerations and not in a manner that frustrates the legislative intent.

The Tribunal is a creature of statute and, on the question of costs, it commences from a different starting point. Usually parties must bear their own costs, which no doubt reflects the general object of the Act. That object .... is to promote access to justice generally and to minimise the overall level of costs in tribunal proceedings as far as practicable.[4]

1. Although cl 16(2) of sch 3 to the Act does not give any guidance as to what circumstances an order for costs is considered just, the mere fact that the Applicants were successful in their Application does not of itself justify a costs order in their favour. There must be circumstances that justify overriding the general rule that the parties bear their own costs.

1. The Applicants submit that the following circumstances justify overturning the statutory presumption that the parties should bear their own costs:

(a) The Respondent was aware that the Applicants had only recently purchased the Subject Land, and that they had limited savings;

(b) They were unaware of the 'unapproved use' of the building at the time of their purchase;

(c) They informed the Respondent that the imposition of the building order that was the subject of the appeal (Building Order) would cause them financial hardship;

(d) Notwithstanding the above matters, the Respondent proceeded to make the Building Order rather than engaging with the Applicants to resolve the issues;

(e) The Applicants had returned the building to a Class 10a building with no access to the mezzanine floor prior to the Building Order being made, which returned it to the same state that it had been after the previous owner had carried out after the making of an earlier building order in August 2014; and

(f) Pursuant to the Determination, the BAB determined that the Building Order 'should never have been made', and that no building work was required by the orders made as part of the Determination because the Applicants had already carried out the necessary work.

1. The Applicants submit that they could have avoided the cost of engaging a building surveyor to represent them had the Respondent engaged with them in good faith to resolve the issues.
2. By an email dated 18 June 2025 from the Respondent, the Respondent submits that the costs sought by the Applicants are 'unreasonable'. The Respondent submits that

Council has been working with the [Applicants] for years to achieve compliance, and the submitted costs are part of consultation with Council...

it should be remembered that it is the [Applicants who are] in the wrong for purchasing a property without checking their buildings for compliance with the Building Regulations.

We consider it unfortunate that, in all the circumstances set out, that the MBS did not engage with the Applicants to explain what steps could be taken by the Applicants to avoid the Building Order being issued.

1. However, we also accept the Respondent's submission that the Applicants, or their conveyancer, could have undertaken enquiries to determine whether the building was able to be used as a Class 1a building.
2. We do not consider that the submissions made in support of an award of costs justify departing from the standard rule that the parties bear their own costs. As such, we refuse the application.

[1] [2001] VSC 349.

[3] [2007] VSC 54.