APPLICANTS Richard O'Bryan and Oliver Da Silva (Adjoining Property owners)

RESPONDENT Strod60 Pty Ltd (ACN 630 670 889) (Subject Land owner)

ADJOINING PROPERTY 62 Raglan Street, Daylesford

BEFORE Members L English (panel chair) and P Paras

CITATION O'Bryan & Anor v Strod60 Pty Ltd [2025] VBAB 90

1. The answers to the Threshold Questions are as follows:

(a) Do the buildings on 60 Raglan Street, Daylesford and 62 Raglan Street, Daylesford share a party wall?

(b) If the buildings on 60 Raglan Street, Daylesford and 62 Raglan Street, Daylesford share a party wall, is there a dispute between the owners of 60 Raglan Street, Daylesford and 62 Raglan Street, Daylesford?

(c) If:

1. the buildings on 60 Raglan Street, Daylesford and 62 Raglan Street, Daylesford share a party wall; and
2. there is a dispute between the owners of 60 Raglan Street, Daylesford and 62 Raglan Street, Daylesford,

is that dispute a dispute about the construction of the party wall or how much of the cost of construction is to be met by each of the owners?

1. The Registrar is directed to list the proceeding for a further direction hearing in order to make directions as to the further conduct of the proceeding.
2. Any application for the costs of the proceeding is reserved until after the Board has made its final principal determination.

_______________________ ________________________

1. On around 22 May 2023, Richard O'Bryan and Oliver Da Silva (Applicants) (who are the registered proprietors of 62 Raglan Street, Daylesford (Adjoining Land)) commenced proceedings (Appeal Proceedings) under s 144 of the Building Act 1993 (Act) seeking orders from the Building Appeals Board (BAB) compelling the Municipal Building Surveyor (MBS) for the Hepburn Shire Council (Council) to take action (under Part 8 of the Act) in relation to the land situated at 60 Raglan Street, Daylesford (Subject Land).
2. The Appeal Proceedings were commenced (at least in part) on the basis of the Applicants' belief that:

(a) the masonry wall of the building on (or near) the western boundary of the Subject Land (Respondent's Building) (immediately adjacent to the building on the Adjoining Land (Applicant's Building), which itself is constructed on (or near) the eastern boundary of the Adjoining Land) has, through neglect or otherwise, become structurally deficient; and

(b) the non-masonry wall of the Respondent's Building (immediately adjacent the deck and private open space to the rear of the Applicant's Building and constructed on (or near) the eastern boundary of the Adjoining Land) should be, but is not, a fire-rated wall,

and enforcement action was therefore required to be carried out by the MBS to address these matters.

1. Order After the Appeal Proceedings (which are now complete) were underway, on around 21 September 2023, the Applicants commencing further proceedings (Dispute Proceeding) referring (under s 158 of the Act) a dispute to the BAB, seeking:

(a) a determination that the walls mentioned above (collectively, Walls) are, for the purposes of s 158 of the Act, 'party walls';

(b) determinations about the required construction standard of the Walls;

(c) orders requiring certain works to be performed on the Walls; and

(d) orders determining apportionment of the costs of those works.

1. Section 158 of the Act provides:

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

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

1. The owner of the Subject Land, Strod60 Pty Ltd (Respondent), denies that the Walls are party walls, therefore the BAB can only consider, and make determinations in relation to, the dispute if it first finds that the Walls are party walls.
2. On 11 December 2024, the BAB held a directions hearing and, on 18 December 2024, the BAB gave directions and made orders, identifying three Threshold Questions to be determined at a preliminary hearing:

(a) Do the buildings on the Subject Land and the Adjoining Land share a party wall?

(b) If the buildings on the Subject Land and the Adjoining Land share a party wall, is there a dispute between the Applicants and the Respondent:

(c) If:

(i) the buildings on the Subject Land and the Adjoining Land share a party wall; and

(ii) there is a dispute between the Applicants and the Respondent,

is that dispute about the construction of the party wall or how much of the cost of construction is to be met by each of the owners.

1. We conducted the preliminary hearing to consider the Threshold Questions on 8 May 2025.
2. For the reasons set out below, we have concluded that the Walls are not party walls.[1]

1. The term 'party wall' is not defined in either the Act or the Building Regulations 2018.
2. In Walsh v Elson (Walsh),[2] O'Bryan J observed:[3]

As was pointed out by Fry J in Watson, v. Gray (1880), 14 Ch. D. 192, at pp. 194-5, the term "party wall" may have various meanings. It may mean (a) a wall of which the two adjoining owners are tenants in common, or (b) a wall divided vertically into two portions, one belonging to each of the adjoining owners, or (c) a wall which belongs entirely to one adjoining owner subject to an easement in the other to have it maintained as a dividing wall, or (d) a wall divided vertically into two portions, each owned by one, but being subject to a cross easement in favour of the other portion.

1. The Australian Encyclopaedia of Forms & Precedents[4] 'picks up' the meaning from Walsh:

The term 'party wall' may be used at common law in any one of four senses. It may mean:

1. A wall of which the two adjoining owners are tenants in common.
2. A wall divided longitudinally into two halves, one half belonging to each of the adjoining owners.
3. A wall belonging entirely to one of the adjoining owners, but subject to an easement or right in the other to have it maintained as a dividing wall between the two properties.
4. A wall divided longitudinally into two halves, each half belonging to the owner of the land upon which it stands but subject to a cross-easement in favour of the other half.

The applicable definition will depend on the given circumstances. For example ... the second scenario will apply where the centre of the wall is situated on the boundary line between parcels'.

1. In Wong v Zhang & Anor[5] (Wong), the BAB[6] observed:[7]

According to the definition of 'party wall' in the Encyclopaedic Australian Legal Dictionary, in order for a wall to be a 'party wall', it must provide support to each house or structure. It defines 'party wall' as:

'A wall common to two houses or other structures and from which each draws support.' (emphasis added).

1. In Wong, the BAB then considered Walsh and observed:[8]

the expression 'party wall' can encompass certain types of walls that do not provide structural support to the relevant buildings/structures.

1. From the above, we identify five scenarios (which may overlap) where a wall may be regarded as a 'party wall':

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

(b) a wall divided longitudinally into two halves, one half belonging to each of the adjoining owners;

(c) a wall belonging entirely to one of the adjoining owners, but subject to an easement or right in the other to have it maintained as a dividing wall between the two properties;

(d) a wall divided longitudinally into two halves, each half belonging to the owner of the land upon which it stands but subject to a cross-easement in favour of the other half; and

(e) a wall that is common to two structures which supports both of those structures (Fifth Scenario).

1. We consider below whether any of these scenarios applies in this case. Before doing so, it is convenient to make some comments on the evidence relied on by the parties.

1. In advance of the hearing, the Applicants filed and served a range of documents (many of which were ultimately not relevant to the determination of the Threshold Questions), including:

(a) three documents, referred to by the Applicants as 'lay person's submissions', authored by:

(i) Mr David Penman;

(ii) Mr Tim Carroll; and

(iii) Mrs Angeline O'Bryan; and

(b) a number of reports procured by the Applicants, including:

(i) a 'Consultants Advice Notice' prepared by, and an email from, Mr Gino Catania of GinCat Fire Engineering; and

(ii) a 'Drainage Assessment' prepared by Mr Simon Merrigan, a land surveyor[9] with the firm, Miller Merrigan; and

(iii) an expert witness report prepared by Mr Merrigan (for Victorian Civil and Administrative Tribunal proceedings) in relation to alleged unreasonable flow of water from the Subject Land to the Adjoining Land.

1. The Applicants called evidence from Mr O'Bryan (which, at the direction of the BAB,[10] he gave as 'sworn' evidence) but did not call any evidence from anyone else.
2. The Applicants also sought to rely on:

(a) two engineering reports (one authored by Peter Ryan and one authored by Stanley Nyandowe of Infradesign (Infradesign Report)) obtained by the Respondent in response to action taken by the MBS before the Dispute Proceeding commenced;

(b) a letter sent by the Respondent's then solicitor to the Applicants (Solicitor's letter); and

(c) a (very brief) expert report (authored by Rocco Carinci of Rincovitch Consulting (Carinci Report)) procured and filed by the Respondent in the Dispute Proceeding, which the Respondent had previously indicated (well in advance of the hearing) was 'withdrawn' and would not be relied on by the Respondent.

1. During his evidence, Mr O'Bryan opined on a range of matters.
2. Noting that Mr O'Bryan lacks the necessary impartiality of an expert witness, we have treated some of this evidence with caution, placing little weight on his opinions, particularly where they were unsupported by objective evidence or where there is conflict between them and other material before us.

(a) documents put to Mr O'Bryan during cross-examination; and

(b) documents that were tabled during presentation of the Respondent's submissions,

Absence from the hearing of various (potential) witnesses

1. Authors of various documents that were before us were not called to give evidence.

1. The Applicants relied heavily on a passage from the Infradesign Report (more below) and:

(a) made allegations that there were (at least) two different versions of the Infradesign Report;

(b) at an earlier directions hearing, sought orders that Council be ordered to provide an unredacted copy of the Infradesign Report;[11] and

(c) did not make any application to have Mr Nyandowe[12] available for cross-examination at the hearing.

(a) sought to rely on the Infradesign Report; and

(b) did not themselves call any expert evidence,

we could draw an adverse inference against the Applicants regarding Mr Nyandowe's absence from the hearing.[13] However, we do need to draw any inferences in relation to Mr Nyandowe. As detailed below, that part of the Infradesign Report relied on by the Applicants speaks for itself.

1. In an earlier directions hearing, the Applicants applied for orders that Mr Carinci be summonsed to appear at the hearing.[14] Mr Carinci's absence is explained by the fact that the BAB refused that application. Accordingly, we do not draw any inferences against the Applicants regarding Mr Carinci's absence.
2. There is no reasonable explanation for the failure by the Applicants to call Mr Penman, Mr Carroll, Mrs O'Bryan, Mr Catania or Mr Merrigan therefore, where necessary, we infer that any evidence they would have given would not have assisted the Applicants' case.
3. During his evidence, Mr O'Bryan stated that he had obtained reports in relation to the Walls[15] from six different experts (which, we understand includes Mr Catania), however the Applicants did not call any expert witnesses to give evidence. There is no reasonable explanation for the failure by the Applicants to call any expert evidence, therefore we infer that any evidence those experts would (or could) have given to the BAB would not have assisted the Applicants' case.

1. In circumstances where the Respondent had obtained reports from engineers (including, in particular, the Carinci Report) but had not called the authors of those reports to give evidence, there might be a basis for drawing an adverse inference regarding the failure by the Respondents to call those witnesses to give evidence.
2. However, any such inference can only be drawn if there is an unexplained failure to call witnesses.
3. The Applicants filed a chronology, in which they stated (with added emphasis):

Enquiries regarding Infradesign, offices recorded at Como centre South Yarra, they have never had a tenant by that name. Cold call led me to a reception in Zimbabwe. Via company search and a lot of foot work, Stanley Nyandowe operates his business from an upstairs room at [Mr Nyandowe's home residence]. trying to serve this guy court documents, I observed him entering the property at night, then his children denied his presence. As requested further information, including a peer review as required under structural engineer code of conduct in Victoria, refused on many occasions.

and continued, quoting the response from Mr Nyandowe:[16]

... I do NOT appreciate your harassment and your actions have been traumatic to me. Please BACK OFF. You threatened to take action against me and I do NOT FEEL SAFE ANYMORE... PLEASE BACK OFF, I DO NOT WANT TO KNOW YOU, OR WORK WITH YOU NOR WORK FOR YOU... PLEASE, PLEASE, PLEASE BACK OFF... Your actions are a Harassment and coercion to me and they should stop.

1. The Respondent put a number of documents to Mr O'Bryan during cross-examination, including:

(a) security camera footage of Mr O'Bryan taken at Mr Nyandowe's home residence, wherein Mr O'Bryan (who was apparently attempting to serve a subpoena in relation to a different matter) falsely represented that he was trying to deliver a 'valuable' parcel to Mr Nyandowe;

(b) the emails from Mr Nyandowe to Mr O'Bryan (cited in the Applicants' chronology, and quoted above); and

(c) an email from the 'Head of Operations, Business Development' of Rincovitch Consulting describing Mr O'Bryan's attempts to contact various people at that firm as 'escalating to a level of harassment'.

1. In answer to questions, Mr O'Bryan asserted his view that it was reasonable for him to make direct contact with experts engaged by another party and to ask them to have their reports 'peer reviewed' and to 'point out' to them their professional obligations under their 'code of conduct'.
2. The Respondent submitted that the absence of the witnesses was explained by their feelings of discomfort resulting from Mr O'Bryan's conduct.
3. We find it highly irregular for Mr O'Bryan to have attempted to contact witnesses in the way he did and for the reasons he expressed. In our view, expert evidence filed in a BAB proceeding should be tested by way of cross-examination in the hearing before the BAB. Direct contact by an opposing party to the witness demanding their report be 'peer reviewed' is neither reasonable nor appropriate.
4. In these circumstances, we are satisfied that there is a reasonable explanation for the absence of both Mr Nyandowe and Mr Carinci[17] from the hearing.
5. Accordingly, in assessing the Respondent's case, we do not draw any adverse inferences as a result of the absence of Mr Nyandowe and Mr Carinci.
6. We stress that this does not mean that we have found that Mr O'Bryan did harass anyone. We need not make any such findings. We simply find that there is a reasonable explanation for the absence of Mr Nyandowe and Mr Carinci from the hearing.
7. Of course, while we have not drawn any adverse inferences, we place little weight on (in particular) the Carinci Report (which states conclusively that the Walls are not party walls) as it is untested.[18]

1. Mr O'Bryan testified that there is a rendered masonry wall constructed on (or near) the boundary of the Subject Land, which:

(a) for some distance to the north of the Applicants' Building is up to approximately 700 mm high, and functions as a retaining wall (Northern Retaining Wall Portion), retaining soil at a higher finished ground level on the Subject Land than is found on the Adjoining Land;

(b) a short distance to the north of Applicants' Building, rises up to become the gable end western wall of the Respondent's Building (Building Wall Portion); and

(c) for some distance to the south of the Respondent's Building continues at a height of up to approximately 700 mm high, and functions as a retaining wall (Southern Retaining Wall Portion), retaining soil at a higher finished ground level on the Subject Land than is found on the Adjoining Land.

1. Throughout the presentation of both his evidence and the Applicants' submissions, Mr O'Bryan's focus was primarily on the masonry wall, however there is an additional wall under consideration which is not constructed of masonry.
2. This wall is a (presumably) timber framed wall, clad with fibre cement sheets (or similar), and containing a six-panel, glazed window, which (apparently) sits atop part of the Southern Retaining Wall Portion, abutting a deck and the private open space to the rear of the Applicant's Building adjacent to the eastern boundary of the Adjoining Land.
3. The evidence shows, that, for its entire length, the masonry wall is constructed wholly within the boundary of the Subject Land. Similarly, the evidence shows that the non-masonry wall is constructed wholly within the boundary of the Subject Land.
4. The evidence shows that the masonry wall was constructed after the Applicants' Building was built.
5. There is no evidence about when the non-masonry wall was constructed.

1. The evidence shows that the relevant portion of the Applicants' Building (that is, the part on (or near) the eastern boundary of the Adjoining Land which sits alongside the masonry wall of the Respondent's Building), is constructed wholly within the Adjoining Land.
2. Mr O'Bryan gave evidence that there is a gap of approximately 10 mm between the western wall of the Respondent's Building and the eastern wall of the Applicants' Building and further that he:

cannot unequivocally confirm that [the eastern wall of the Applicants' Building] is a timber clad wall.

1. Mr Carroll stated (relevantly, with added emphasis):

My name is Tim Carroll, I am a builder who built the loft building in the rear of 62 Raglan Street around 2017...

1. Both properties were built in the 1850s, the east wall of 62 Raglan Street is hard up against the west wall of 60 Raglan. 62 Raglan Street is of timber construction 60 Raglan is brick. The gap separating the buildings is estimated at 25mm...

Because of the construction technique adopted protection of the structural integrity of 62 Raglan Street via flashings between the two structures is totally dependent on the proper maintenance and integrity of the masonry wall at 60 Raglan Street. If not water penetration between the buildings would corrode the timber weatherboards of 62...

1. After Mr O'Bryan's testimony had concluded, and he was making submissions, he expressed an opinion (not previously referred to in any material filed with the BAB or in his oral evidence, and not put in a manner that enabled it to be tested by the Respondent), that the Applicants' Building was not originally built to the boundary, and that it was extended to (or near to) the boundary in the 1920s (after the Respondent's Building was constructed).
2. He then said:[19]

I've got one engineer, who has written a structural engineering report on next door, saying that he believes the roof structure of [the Applicants' Building] is supported by that wall...,

suggesting that extension might have resulted in replacement of the ridge beam of the Applicants' Building, which Mr O'Bryan suggested in submissions is supported by the masonry wall of the Respondent's Building - despite him also submitting that:

I cannot tell you unequivocally whether the roof of this building is supported on that wall or not.

1. No evidence at all, let alone independent or objective evidence, was tendered in relation to the claimed extension to the Applicants' Building. Indeed, Mrs O'Bryan (who was not called to give any evidence) stated to the contrary:

Under your consideration are some of the oldest buildings in the State of Victoria. My family owns Poets Lodge, built in 1860 and located at 62 Raglan Street Daylesford, this adjoins the neighbours [sic] property 60 Raglan Street, built 1862.

1. Mr O'Bryan's evidence in relation to the claim that the roof of the Applicants' building is supported by the masonry wall of the Respondent's Building included him stating:

without invasive investigation, the issue of support is unproven.

Reliance on the Infradesign Report and the Solicitor's Letter

However Infradesign noted the observation for a reason. That is why the Applicants summonsed him to the BAB...[20]

1. The portion of the Infradesign Report relied on by the Applicants says:

It also appears that part of the roof of 62 Raglan Street is supported on the subject wall.

1. The Infradesign Report continues (with added emphasis):

If our observation is correct, it suggests a malpractice as structures can not be structurally dependent on the neighbour structures on the neighbour's property unless in the case of a party wall...

and makes a number of recommendations, including (with added emphasis):

We also recommend that it be conclusively determined whether the roof from 62 Raglan is resting on 60 Raglan Street. (the subject wall). It is important to ensure that the structure is independently supported and not supported on a wall that is showing signs of stress as indicated by the crack as repair work may compromise the neighbour's (62 Raglan St) structure if not independently supported... This recommendation is also intended to reduce the load on the subject wall should it be loaded by structures from the neighbour which the wall may NOT have been designed for in the first place...

1. The Applicants also relied on the Solicitor's Letter, which quoted the Infradesign report and appeared to adopt as fact that which the Infradesign Report had clearly indicated was a mere possibility requiring further investigation, concluding:

We place you and your co-owner, Oliver Gerald da Silva, on notice that our client holds you responsible for damage to the wall and costs to date. Our client reserves the right to recover from you engineering and builder fees incurred to date.

1. The Infradesign Report does not conclude that the Applicants' Building is supported by the Respondent's Building - it notes that it might be, and expressly says that further investigation should be carried out to conclusively determine whether it is or not.
2. Furthermore, the Infradesign Report contains no rationale or reasoning underpinning the observation that the Applicants' Building might be relying on the Respondent's Building for support.
3. Despite claiming to put the Applicants 'on notice' on the basis of the apparent support, neither the tone, nor the content of the Solicitor's Letter can change the conclusion in the Infradesign Report. The Solicitor's Letter is not evidence that the Applicants' Building is supported by the Respondent's Building.
4. Before turning to our findings of fact, we make a brief comment regarding deficiencies in the Applicants' evidence.

1. In this matter, in seeking to invoke the jurisdiction of the BAB, the Applicants must provide evidence which shows that there is at least the reasonable possibility that the masonry wall may be a party wall.
2. The Respondent submitted that the Applicants had not provided sufficient evidence to meet this burden. We agree. Particularly in relation to the claim that the Applicants' Building is supported by the masonry wall.
3. This situation arises, at least in part, because the Applicants did not carry out sufficient investigations to answer key questions of fact in this case.

(a) on the one hand, asserting that the Applicants' Building is supported by the masonry wall; and

(b) on the other hand, providing sworn testimony that the question of support cannot be positively determined without 'invasive investigation'.

1. Given the burden on the Applicants, we consider that:

(a) the Applicants should have carried out investigations (including, to whatever extent necessary invasive investigations within the Applicants' Building)[21] to obtain sufficient evidence to establish whether the Applicants' Building is supported by the masonry wall; and

(b) the assertion that the Applicants' Building is supported by the masonry wall should not have been made without objective evidence supporting that assertion.

1. During the hearing, the Applicants ultimately expressly indicated that the only wall they were claiming to be a 'party wall' was the Building Wall Portion of the masonry wall (that is, where the wall sits alongside the Applicants' Building), however other parts of the Applicants' case appeared to be advanced on the basis that they were continuing to seek some form of relief in relation to the non-masonry wall.
2. Therefore, for completeness, we continue to address both Walls.
3. On the evidence before us, we are unable to find that:

(a) the Applicants' Building was extended at any time after the Respondent's Building was constructed; or

(b) the ridge beam (or any part of the roof structure) of the Applicants' Building is supported in any way by the masonry wall of the Respondent's Building.

1. Noting our comments above regarding inferences to be drawn regarding absent witnesses (in particular, that any evidence Mr Carroll may have given would not have assisted the Applicants' case), we find:

(a) the Respondent's Building is a masonry building, and was constructed after the Applicants' Building was built;

(b) the Respondent's Building is constructed entirely within the property boundaries of the Subject Land;

(c) both of the Walls are 'external' walls of the Respondent's Building;

(d) the Applicants' Building is a timber building, and was constructed before the Respondent's Building was built;

(e) the (relevant part of) the Applicants' Building is constructed entirely within the property boundaries of the Adjoining Land;

(f) the eastern wall of the Applicants' Building is an 'external' wall of that Building;

(g) each of the two buildings were constructed separately, without any reliance or support on the other; and

(h) where the two buildings are alongside one another:

(i) the external wall of the Respondent's Building is constructed of masonry;

(ii) the external wall of the Applicant's Building is constructed of timber clad with weatherboards; and

(iii) there is a gap of approximately 25 millimetres between the masonry wall and the wall of the Applicant's Building.

1. We turn now to consideration of whether these facts support a conclusion that the Walls are party walls.

1. A considerable amount of the time taken by Mr O'Bryan to give evidence was dedicated to what he referred to as 'background', where he set out at great length his assertions about a crack in the masonry wall and the history of interactions with the MBS and various other Council officers and representatives.
2. Mr O'Bryan also asserted that the Respondent's Building had been modified without the necessary planning or building permits and alleged that the Respondent had been 'negligent' and it was the Respondent's 'negligence' that had caused the crack in the masonry wall, posing a risk to the Applicants.
3. Despite citing Walsh, the Applicants did not submit that either of the Walls are party walls on the basis of any of the scenarios identified in Walsh, rather, the Applicants claim that the Walls are party walls can be distilled down to a claim that the Applicants say there is 'structural reliance' by them on:

(a) the masonry wall, in respect of which they rely on four claimed factors:

(i) flashings are attached to the masonry wall and the roof of the Applicants' Building;

(ii) the roof of the Applicants' Building is supported by the masonry wall;

(iii) the masonry wall acts as a retaining wall (below the level of the finished floor level of the Respondent's Building); and

(iv) fire separation should be provided by the masonry wall; and

(b) the non-masonry because fire separation should be provided by the non-masonry wall.

1. Before turning to the Applicants' novel claim regarding 'structural reliance', we consider it appropriate to apply Walsh to this matter.
2. Significantly, the Applicants do not claim that:

(a) there is one wall of which the Applicants (on the one hand) and the Respondent (on the other) are owners as tenants in common;

(b) there is one wall divided longitudinally into two halves, one half of which belongs to the Applicants (with the other half owned by the Respondents); or

(c) there is one wall divided longitudinally into two halves, each half of which belongs to the owner of the land upon which it stands and subject to a cross-easement in favour of the other half,

and we observe that these claims, if they had been made, could not possibly have been supported by the evidence. As noted above, the Walls are constructed wholly on the Subject Land. Accordingly, the Walls belong entirely to the Respondent.

1. There is no express easement identified on any of the title documents.
2. The Applicants argue that there is an implied easement (addressed in greater detail below), however they do not argue that the easement right is the right as described in Walsh and the Australian Encyclopaedia of Forms & Precedents:

an easement or right in the other to have it maintained as a dividing wall between the two properties.

1. And that cannot in any event be argued. The Walls are not relied on as 'dividing walls':

(a) the masonry wall sits alongside the weatherboard wall of the Applicants' Building; and

(b) the non-masonry wall is constructed on (or near) the boundary of the Subject Land adjacent to the private open space of the Adjoining Land.

1. Accordingly, on the basis of the legal principles established in Walsh, the Walls are not 'party walls'.
2. However, the Applicants submitted that there is 'confusion' as to what a party wall is and further submitted that the Walls in this case are party walls because the Applicants are 'structurally reliant' on the Walls.
3. This is similar (but not identical) to the Fifth Scenario identified above (repeated for convenience):

a wall that is common to two structures which supports both of those structures.

1. It is helpful to recall the matters on which the Applicants rely.

1. The Applicants' claim in relation to the masonry wall rests on four limbs:

(a) flashings are attached to the wall of the Respondent's Building and the roof of the Applicants' Building;

(b) the roof of the Applicants' Building is supported by the wall of the Respondent's Building;

(c) the masonry wall acts as a retaining wall; and

(d) fire separation should be provided by the masonry wall.

1. The non-masonry wall sits alongside the private open space to the rear of the Applicants' Building (apparently atop part of the extent of the masonry wall which the Applicants say acts as a retaining wall to the south of the Applicants' Building).
2. The Applicants do not claim that the non-masonry wall supports any part of the Applicants' Building.
3. Accordingly, the only possible claim in relation to the non-masonry wall is that it should provide the Applicants with fire protection.
4. Therefore, the Fifth Scenario could only apply to the masonry wall.
5. We turn now to considering:

(a) whether the masonry wall is common to the Applicants' Building and the Respondent's Building; and

(b) whether the masonry wall supports both the Applicants' Building and the Respondent's Building.

1. We have set out above our findings that the masonry wall is the external wall of the Respondent's Building and sits on the Subject Land alongside the weatherboard external wall of the Applicants' Building (which is on the Adjoining Land).
2. Accordingly, the masonry wall is not 'common' in the sense of it being the sole dividing or separating wall between the buildings.
3. The Applicants' Building has its own external wall, which is also constructed on (or near) the boundary.
4. However, as we understand the Applicants argument, they argued that because the masonry wall (might) provide support to the roof of the Applicants' Building, it is therefore a 'common wall' because the Applicants enjoy an easement right in relation to it.

1. In O'Bryan & Anor v Braszell[22] (Braszell), the BAB[23] observed:

The title for the Applicants' property does not indicate any party walls or easements on the relevant section where the structures are located on the allotment. We note generally and based on the Walsh decision and general practice that such details would typically be recorded on the property title of both the Applicants and Respondent. [24]

1. We agree. In those cases (such as referred to in Wong) where buildings are built from the outset as buildings which are intended to draw support from a common wall, it is usual practice to record an express party wall easement on title documents to the land on which the buildings are built.
2. As was the case in Braszell, there is no easement recorded on the title documents.

Implied easement - doctrine of lost modern grant?

1. The Applicants submitted that the BAB should not find that a wall can only be a party wall if there is an express easement, but that an implied easement could come into existence by operation of the 'doctrine of the lost modern grant'[25] and further submitted that that is what has occurred in this case.
2. This appears to arise largely from the Applicants' claim that the Applicants' Building (which was constructed before the Respondent's Building) was extended in the 1920s (after the Respondent's Building was constructed) and, at that time, the new ridge beam of the Applicant's Building was (with or without permission) 'checked into' the then existing masonry wall of the Respondent's Building.
3. While not being aware of any authority on point, the Respondent accepted the proposition that the doctrine of the lost modern grant might apply to create an implied 'party wall' easement but submitted that the necessary factors are not present in this case.
4. In Valmorbida v Les Denny Pty Ltd,[26] Gorton J observed:
   1. The criteria for the emergence of an easement from 20 years' use of a neighbour's property are otherwise expressed in different ways. It is said that the use must have been 'nec vi, nec clam, nec precario' - that is, without violence, without stealth and without permission. It is also said that the use must have been 'as of right', and have been with the knowledge of, but without the consent of, the neighbour. These requirements overlap, and must be understood in the context of the underlying rationale and reasoning processes for which the law recognises the emergence of an easement in these circumstances.
   2. As noted above, the rationale for the development of the fiction was to promote certainty of peoples' interests in land. But the finding of an easement places a burden on the servient tenement. Accordingly, if it is to be just, there must be something in the conduct of the registered proprietors of the servient tenement that makes it appropriate to burden that property with an easement that the proprietors never in fact agreed to grant and for which they received no consideration. That gives rise to the notion of 'acquiescence'; if a person had notice of the use, and did nothing to prevent it for 20 years, then, just as if there were a statutory limitation period, they could no longer be permitted to complain if the use were to become permanent...[27]
5. Mr O'Bryan himself testified that he does not know whether the roof of the Applicants' Building is in fact supported by the masonry wall (more below).
6. Furthermore, the Applicants did not present any evidence that the Respondent (or the Respondent's predecessors in title) had any knowledge of the support the Respondent's Building is said to be providing.
7. In these circumstances, even if we do find that the Applicants' Building is supported by the masonry wall, it would be impossible for us to find that the support provided by the masonry wall to the Applicants' Building was done openly and obviously and with the knowledge of the Respondent's predecessors in title.
8. The doctrine of lost modern grant clearly cannot apply.

Implied easement - Subdivision Act 1988?

1. The Applicants also sought to rely on s 12(2) of the Subdivision Act 1988 (Subdivision Act), which implies easements over:

(a) all land on a plan of subdivision of a building;

(b) that part of a subdivision which subdivides a building;

(c) any land affected by an owners corporation; and

(d) any land on a plan of subdivision which expressly states that s 12(2) of the Subdivision Act applies to it,

1. We do not find that there is an implied easement either as a result of the doctrine of the lost modern grant, or by application of the Subdivision Act.
2. The masonry wall is not common to the Applicants' Building and the Respondent's Building.

Does the masonry wall support both buildings?

1. In Braszell, the BAB[28] observed:[29]

The photographs show that the building on the Applicants' and Respondent's properties each have separate external walls. External walls are often load bearing walls which suggest that each building has independent structural supports relying on its respective external walls.

1. The same applies in this case. There is no evidence before us to support a conclusion that the roof of the Applicants' Building is supported by the masonry wall (indeed, while asserting on one hand that it is, Mr O'Bryan gave sworn evidence to the effect that he actually does not know whether the Applicants' Building is supported in any way by the masonry wall).
2. Each of the buildings are stand-alone structures with their own external walls (which sit alongside each other) made of separate and distinct materials. The buildings were constructed at different times (notably, in this regard, the Applicants' Building was constructed before the masonry wall).
3. Accordingly, we conclude that the roofs of both of the buildings are supported by their own external walls.
4. The masonry wall is not providing any support to the Applicants' Building.

(a) the masonry wall is not a party wall; and

(b) the non-masonry wall is not a party wall.

1. However, as noted above, the Applicants did not expressly put their case in reliance on established principles.
2. Rather than relying on 'support', they argued that because they are 'structurally reliant' on the Walls, the Walls 'act in the same way as party walls' and we should therefore find that the Walls are party walls.
3. As noted above, this 'structural reliance' is said to arise

(a) in relation to the masonry wall, in four ways:

(i) flashings are attached to the wall of the Respondent's Building and the roof of the Applicants' Building;

(ii) the roof of the Applicants' Building is supported by the wall of the Respondent's Building;

(iii) the masonry wall acts as a retaining wall; and

(iv) the Applicants rely on the masonry wall for 'fire separation'; and

(b) in relation to the non-masonry wall, the Applicants rely on it for 'fire separation'.

1. As noted above, this is a novel argument. We consider each of the elements of it below.

1. As noted above, Mr Carroll opined that the flashings are necessary to protect the weatherboard external wall of the Applicants' Building.
2. This is not a conclusion regarding 'structural reliance'.
3. In any event, the fact that there are flashings present to protect the outer surface of the external wall of the Applicants' Building does not surprise us and does not lead us to the conclusion that the masonry wall (to which the flashings appear to be attached) is a party wall.
4. We do not accept the proposition that the presence of flashings over the gap between the external wall of the Applicants' Building and the external wall of the Respondent's Building (the masonry wall) makes the masonry wall (or, for that matter, the external wall of the Applicants' Building) a party wall.

(a) we have not found that the roof of the Applicants' Building is supported by the masonry wall; and

(b) we conclude that the roofs of both of the buildings are supported by their own external walls.

1. Accordingly, we cannot (and do not) accept that the alleged support makes the masonry wall a party wall.
2. Before turning to the last two elements of the Applicants' argument, we record that both of them share two common features:

(a) the Applicants rely on a notion of 'structural reliance' (as a proxy for 'support'); and

(b) the Applicants rely on assertions about risk to the Applicants' Building (or the Adjoining Land more generally).

1. We do not accept that some general notion of 'structural reliance' can be a proxy for 'support', with the effect that any finding of such reliance leads to a conclusion that a wall is a party wall.
2. We think the authorities are clear - party walls are either party walls because they support buildings on two different properties, or for other reasons not involving support (about which we have made findings above).
3. The notion of 'structural reliance', as put to us by the Applicants (discussed in greater detail below), clearly goes further than 'support'.

1. The Applicants asserted (with scant evidence)[30] that the Respondent has carried out works without permits and that those works were carried out in a negligent manner, causing the crack in the masonry wall.
2. The Applicants sought to rely on the alleged negligence as a reason why we should find that the Walls are party walls, thereby giving the BAB jurisdiction to resolve the dispute, inferring that there was no other possible means of them obtaining any relief.
3. The Applicants submitted:

In Bradburn versus [sic] Lindsay (1983) All ER 408 where a party is guilty of negligence where the wall falls into disrepair through neglect the party with the wall will have breached their duty of care and would be responsible for the cost of rectification.

1. We accept that this proposition is likely to apply in Victoria. But it would be equally true of a wall that is not a party wall. Indeed, the text ('the party with the wall') suggests that the wall in that case was not a party wall.
2. The Applicants also submitted:

Section 158 of the Act is a remedial provision, which enables parties to resolve disputes before the BAB. The expression 'party wall' should be given an expansive interpretation so that parties are able to seek the assistance of the BAB, without the parties needing to seek declarations from a court.

1. In so far as this is submission relates to the alleged negligence, we disagree. If (as the Applicants allege) the Respondent has been negligent (a matter about which we make no findings), the proper course would be to seek a remedy from the courts, which deal with neighbour and boundary disputes (which have always been the domain of the courts) every day.
2. The BAB's facilitative jurisdiction is not intended to oust jurisdiction of courts. The BAB's expertise is in relation to building and construction matters. The BAB is not expert at assessing claims of negligence.
3. The fact that the Applicants perceive risk to their property does not preclude the usual civil remedies. There is simply no reason for the BAB to be vested with jurisdiction because something is said to be a risk to a neighbouring property, and no reason why allegations such as the Applicants are making ought be resolved in different places, depending on a conclusion as to whether the Walls are party walls.
4. This is particularly the case here, where, despite relying on a claim that the Walls are party walls, the Applicants hold the Respondent wholly responsible for the state of the Walls and seek orders requiring the Respondent to bear the full costs of rectification or repair works to the Walls.
5. A conclusion that the Walls are not party walls does not mean that the Applicants cannot pursue a remedy in relation to their concerns. It simply means that they cannot pursue a remedy in the BAB.
6. The asserted risk has therefore had no impact on our consideration of the Threshold Questions.
7. We return to the last two elements of the Applicants' argument.

1. The Applicants submitted that the fact that the masonry wall is a retaining wall means that there will be a landslide if it fails and such landslide will affect them, in that soil from the Subject Land would fall onto the Adjoining Land.
2. We accept as true the basic proposition that a failure in a retaining wall might lead to the ingress onto a neighbouring property of soil that was otherwise held back by the retaining wall.
3. However, we do not accept the argument, as put by the Applicants, that this means (in this case) that the Applicants draw some form of 'structural reliance' from it, or, even if they do, that that 'reliance' on the structural soundness of the retaining wall makes the retaining wall a party wall.
4. This proposition is entirely unsupported by authority and does not make any sense to us. There is simply no need to characterise a wall as a party wall because it is a retaining wall.
5. We do not find that the masonry wall is a party wall because it is a retaining wall.

1. The final category of 'structural reliance' identified by the Applicants was the notion of 'fire separation'.
2. The Applicants asserted that, because the Applicants (should be able to) rely on the Walls for fire separation purposes, the Walls are both party walls.
3. Again, this proposition is entirely unsupported by authority and does not make any sense to us. There is simply no need to characterise an external wall of a building as a party wall because current building regulations require walls constructed on (or near) a boundary to have a certain fire rating.
4. Fire ratings of external walls on or near boundaries seek to protect buildings from fire spreading to those buildings, not to protect other buildings from the risk of fire spread from those buildings.
5. This is reflected in the email from Mr Catania (which the Applicants filed):

From a fire engineering point of view the risk the Building Regs and Code is trying to address is fire spread to a building.

i.e. an owner must protect themselves from fire, by a fire rated wall that has rating from the outside only.

Eg Bushfires are fires from outside, brick veneer or approved fire rated systems to protect from fires on adjoining boundaries.

The same applies for windows on a boundary where in Volume 1 of the BCA, the intent is to protect from outside under BCA Clause 3.2.

Therefore the neighbours' wall should be fire rated from the outside to meet the prescriptive requirements of the BCA/Regs...

1. We disagree with the notion that the Applicants 'rely' on the Walls for fire separation purposes and we do not find that the Walls are party walls for this reason.

1. As we have found that the Walls are not party walls, there is no reason for us to consider the further two Threshold Questions.
2. On its face, the finding that the Walls are not party walls appears to lead to the conclusion that the BAB does not have jurisdiction to deal with the dispute between the parties. This conclusion would mean that the matter would be dismissed for want of jurisdiction. However, the BAB will hear from the parties before final orders are made

[1] We have considered all of written and oral submissions made by the parties and (relevant) material filed with the BAB, however, we do not consider it necessary to refer to or cite all of the material put before us, instead focussing on the key points leading to our findings.

[2] [1995] VLR 276.

[4] LexisNexis Australia. Cited in Wong v Zhang & Anor [2019] VBAB 10 at [13].

[6] Constituted by Members Lodge (panel chair), Kurban and Knight.

[9] Mr O'Bryan referred to Mr Merrigan as a civil engineer, however we note that Mr Merrigan states in his VCAT evidence report 'My academic qualifications are: Bachelor of Applied Science (Surveying), 1992 at RMIT; Master of Landscape Architecture, 2000 at Melbourne University'.

[10] Pursuant to s 15 of the Evidence (Miscellaneous Provisions) Act 1958 (as in force immediately before its repeal) (per cl 2 of Sch 3 to the Building Act 1993).

[11] Which resulted in the BAB issuing a 'summons to produce' to Mr Nyandowe.

[12] The Applicants made an application for a summons to be served on Hepburn Shire Council to require it to provide an unredacted version of the Infradesign Report. After considering that application at a directions hearing, the BAB ordered the Respondent to file and serve an unredacted version of the report and issued a 'summons to produce' to Mr Nyandowe', requiring him to produce other documents referred to in his report. The Applicants did not apply for a summons to be made requiring Mr Nyandowe to appear at the hearing.

[13] The 'rule' in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. Noting that the BAB is not actually bound by the rules of evidence (cl 3(d) of sch 3 to the Building Act 1993).

[14] Orders that were vigorously opposed by the Respondent.

[16] Which the Applicants allege was 'drafted by' the director of the Respondent - an allegation about which we do not (as we do not need to) make any finding.

[17] In addition to the fact that the BAB refused the Applicants' application to summons him to attend.

[18] As discussed below, the Infradesign Report observes that further investigation is required.

[19] Noting that this report was not filed with, or tendered to, the BAB, and the unidentified author of it was not called to give evidence.

[20] No application was made for a summons to compel Mr Nyandowe to attend. See footnote 12.

[21] Reference was made to requests to enter the roof space of the Respondent's Building. We do not accept that entering the roof space of the Respondent's Building would have been of much assistance in answering the question as to whether the Applicant's Building is supported by the masonry wall. In our view, an inspection (which, may or may not require invasive investigation) of the Applicants' Building's roof space would be much more likely to provide evidence of the means of support of the roof of the Applicants' Building.

[23] Constituted by Members Hodges (panel chair) and Van Ravenstein.

[25] See, for example, Valmorbida v Les Denny Pty Ltd [2023] VSC 680.

[26] [2023] VSC 680.

[27] At [13] and [14]. Footnotes omitted.

[28] Constituted by Members Hodges (Chairperson) and Van Ravenstein.

[30] Though we note that we do not need to (and do not) make any findings about these allegations.