The purposes of the statutory scheme are to ensure proper standards of building and construction, to protect the public from delinquent and unscrupulous building practices and to maintain the standing of the building industry.

1. A private building surveyor's functions are set out in of the BA.[6] Section 76 provides that a private building surveyor may:

(b) carry out inspections of buildings and building work; and

(c ) issue occupancy permits and temporary approvals.

1. Subsection 24(1)(a) provides:

(1) Subject to Division 4, the relevant building surveyor must not issue a building permit unless he or she is satisfied that -

(a) the building work and the building permit will comply with this Act and the building regulations; and

Despite the terms of an appointment under this section, a private building surveyor, carrying out any functions set out in section 76, must comply with this Act and the regulations.

1. Accordingly, there are further specific provisions which deal with certain powers and duties of the building surveyor, to give effect to his/her primary functions, for instance: s 34;[7] s 35;[8] s 36;[9] s 37;[10] s 38;[11] s 106;[12] s 112;[13] and s 115.[14]
2. The Building Regulations 2006 ('BR') prescribe a general professional standard in relation to all registered building practitioners. Hence, Regulation 1502 provides:

(a) perform his or her work as a building practitioner in a competent manner and to a professional standard.[15]

1. The Australian Institute of Building Surveyors (Victorian Chapter) publication 'Roles and Responsibilities of Building Surveyors' states:

The combination of experience, tertiary qualifications and professional liability insurance means that the building surveyor is comparable to other building professionals, such as architects and engineers. The building control legislative scheme is thus designed with the object of ensuring that building surveyors and other registered building practitioners act with a high degree of professionalism and integrity, in order to protect the public.[16]

1. The above broadly sets out the framework within which a registered building surveyor is required to perform his/her functions and duties. There is no question that the building surveyor owes a duty of care to any party, whether building owner, Owner Builder or subsequent purchaser, who may suffer detriment and consequential loss as a result of the building surveyor's failure to comply with the BA and BR and/or negligent performance of his/her duties thereunder. Accordingly, a building surveyor must exercise due care and skill in performing those duties and functions otherwise prescribed by the BA, the BR and the Building Code of Australia ('BCA').
2. Accordingly, for the purpose of this case, before the Respondent may be found liable for any part of the damages claimed, it is essential to identify precisely what aspect of his duties were breached, if any; and whether there is a causal connection between any such breach and the claimed consequent damage and loss.
3. In relation to the contractual claim against AABP, in addition to the express terms of the Fee Proposal the Applicant relies upon implied terms and statutory warranties.[17] Under cross-examination the Respondent in fact conceded the implied terms alleged under paragraph 5 of the Points of Claim. However, paragraph 6 contains broadly similar implied terms to those sought to be relied upon in Lewis v Threadwell & Ors.[18] I concur with the observations made in that case by Senior Member Young as follows:[19]

Save for the term that the service would be rendered with due care and skill, which is sought to be implied in the pleadings, all the other terms which are sought to be implied, appear to fix the building surveyor with the type of duties that one might expect on a trade practices action or a sale of goods action as to quality or as to fitness for purpose. The role of a building surveyor is fixed by the legislation, and is tied to certification in accordance with minimal requirements as set out in the Building Act, the Regulations and the Building Code Australia (BCA). In this particular instance, it must be remembered that the second respondent is not employed either as an architect or designer where some such terms may be implied. In this particular instance, the second respondent is obliged to comply with the BCA and various statutory requirements and to exercise due care and skill.

1. The Applicant was not and should never have been dealt with, as an Owner Builder. Accordingly, on 1 March 2009, when the Respondent issued the building permit to the Applicant, he did so in contravention of the prohibition in s 24A(2) of the BA.
2. The Applicant was effectively 'duped' into applying for an Owner Builder Certificate of Consent by Terry Bartzis, builder and his son George Bartzis, solicitor.
3. Notwithstanding the fact that the Building Practitioners Board ('BPB') had issued the Applicant with an Owner Builder Certificate of Consent, she should never have been issued an Owner Builder permit; and the Respondent failed in his duties towards her by treating her throughout the project as an Owner Builder. Prior to the issue of a building permit, the Respondent was on notice that the Applicant proposed to engage a registered builder to perform major domestic building work.
4. Prior to the commencement of building work, the Applicant entered into a major domestic building contract with Civic Home Improvements (Vic) Pty Ltd ('CHI');[20] for the construction of a concrete slab and framing.[21] The building permit should have been issued [or amended] to comply with s 24A(2) [and not s 24A(3)] of the BA.
5. The Respondent breached his statutory duty; and/or was in breach of his duty of care to the Applicant, as the relevant building surveyor, in:
   • (a) issuing a building permit to the Applicant as Owner Builder;
   • (b) consistently failing to comply with his statutory duties; and
   • (c) consistently failing to perform in a competent manner and to a professional standard.
6. The Applicant suffered loss and damage as a consequence of:
   • (a) engaging builders who were unregistered and/or not covered by the requisite insurance;
   • (b) defective building work and non-complying building work;
   • (c) malicious damage by unknown third parties; and
   • (d) delay.
7. Consequently, the Respondents are liable for the loss and damage which she has suffered.

1. The Respondents' rely upon the Owner Builder Certificate of Consent issued to the Applicant by the BPB. Consequently, s 24(2) of the BA applied and the prohibition in s 24A(2), against issuing the building permit, did not apply.
2. The Respondents' contend that the duty owed to the Applicant is to be construed solely in accordance with a building surveyor's obligations under the BA and BR. Essentially, these duties are confined to the three activities set out in s 76(a)-(c) of the BA. The reasonableness of knowledge to be attributed to the Respondent is relevantly confined within the scope of these duties. In this manner, the Respondent's conduct has not relevantly caused the respective losses claimed by the Applicant.
3. The Respondent attributed all of the problems associated with the building project, to the Applicant, encompassing:
   • (a) The initial non-complying slab;
   • (b) The circumstances leading to the demolition of the first frame;
   • (c) The circumstances leading to the issue of a Stop Work Order and Building Notice, in respect of the second frame; and
   • (d) Any delays in the issue of an amending building permit, rectification and completion of the building work.

1. The parties were in general agreement, as to the issues raised by this proceeding, as follows:
   • (a) Was the Applicant an 'Owner Builder'?
   • (b) What is the scope of the duty of a building surveyor:
     • (i) To issue a building permit;
     • (ii) Over the course of a building project; and
     • (iii) To an Owner Builder?
   • (c) Was the First Respondent entitled to have issued an Owner Builder permit to the Applicant?
   • (d) Has there been a breach of the Respondent's duty, as the building surveyor appointed by the Applicant?
   • (e) Has the loss and damage which the Applicant alleges she incurred, been caused by any breach of duty? and
   • (f) Are general damages recoverable?

1. The following terms have been abbreviated as follows:
   • (a) Building Act 1993 as 'BA';
   • (b) Building Regulations 2006 as 'BR'
   • (c) Domestic Building Contracts Act 1996 as 'DBCA';
   • (d) Occupational Health and Safety Act 1985 as 'OHSA';
   • (e) Building Commission as 'BC';
   • (f) Building Practitioners Board as 'BPB';
   • (g) Building Code of Australia as 'BCA';
2. The following persons and entities have been abbreviated as follows:
   • (a) Vincent Urbano Concreter as 'Urbano';
   • (b) Roy Hodgson Draftsman as 'Hodgson';
   • (c) Terry Bartzis Builder as 'Terry B';
   • (d) George Bartzis Solicitor as 'George B';
   • (e) Civic Home Improvements (Vic) Pty Ltd , as 'CHI';
   • (f) Heino Laukert, Builder of CHI as 'Laukert';
   • (g) Barry Gale Engineers as 'BGE';
   • (h) Steve Fraser of APDD Pty Ltd as 'Fraser';
   • (i) David Landy Engineer of D.M. Landy & Associates Pty Ltd as 'Landy';
   • (j) Laurie Mitchell of Buildinspect Building Consultants as 'Mitchell';
   • (k) Terry Phyland Engineer of Buildinspect as 'Phyland';
   • (l) Peter Stewart Builder as 'Stewart';
   • (m) John Dowling Builder as 'Dowling'; and
   • (n) Tim Landy of Robinson Gill, Lawyers as 'Tim Landy'.

1. On behalf of the Applicant, the Applicant filed a detailed witness statement[22] with exhibits; and gave oral evidence.
2. On behalf of the Respondents, the following witnesses filed witness statements[23] and gave oral evidence:
   • (a) The Respondent;[24]
   • (b) Urbano;[25]
   • (c) Hodgson;[26] and
   • (d) George B.[27]

1. The evidence was detailed and the supporting documentation voluminous. It is necessary to record the chronology of events in some detail as the issues raised in this case are dependent upon findings as to:
   • (a) the Respondent's reasonable knowledge at critical times;
   • (b) whether his actions or failure to act in a certain way constituted a breach of the duties which he owed as the relevant building surveyor; and
   • (c) whether any such breach of duties were a cause of any of the loss and damage claimed.

1. The Applicant was born in Singapore and is now an Australian citizen, having resided in Australia for 11 years. She is now 52 years old and at the time of the Hearing lived in a rented apartment, supported by an allowance provided by her ex-husband.
2. Prior to the building project, which is the subject of the claim, the Applicant had had no experience in the building and construction industry. She did have some training as a draftsperson in Singapore and from that experience and her knowledge of Photoshop, she was able to make amendments to the building plans, when instructed by the various building practitioners involved in the project.
3. On 16 August 2008, the Applicant purchased vacant land at 6 Croydon Road Surrey Hills ('the building site') with the intention of building a home for herself and her two children. She was then residing in rental accommodation with her children and former partner, John Orders, whose surname she has adopted.
4. The Applicant obtained a Certificate of Consent from the BPB on 17 December 2008, to be an Owner Builder in respect of the construction of a new home and garage at the building site ('the building project'). Her claim relates to her engagement of AABP to provide building surveying services; and to the Respondent's appointment as the relevant building surveyor.
5. The Applicant had never built a home before; had never undertaken an Owner Builder course; and had no knowledge of the domestic building regulatory scheme in Victoria.
6. In essence, the Applicant claims that she was 'duped' into applying to be an Owner Builder by the first builder to whom she had been referred. She was an Owner Builder in name only, and in reality, only ever acted as a building owner. The Respondent was well aware of her circumstances and the fact that she always intended to engage a registered builder to perform major domestic building work. In applying for a building permit as an Owner Builder, she relied upon the expertise of the Respondent.
7. Throughout the building project, the Applicant relied and acted upon the advice given to her by various registered building practitioners. In particular, at no stage did she understand the role of an Owner Builder or assume or perform such role in relation to the building project.
8. Her relationship with Mr Orders broke down as a result of the stress of the building dispute. She is now medicated for depression.

1. The Respondent was born and educated in England. He completed a 3 year Diploma in Building Studies at Wilton Technical College in the early 1990's. Prior to coming to Australia, he worked:
   • (a) for a Quantity Surveying business for 6 months; and
   • (b) for a company that employed building surveyors who did work for a municipal council, for 1 year.
2. He migrated to Australia in about 2000/2001 and has lived in Victoria ever since. He was first employed as an assistant building surveyor with Mackenzie Group Consulting for 4 years. He then worked for BSGM Building Surveyors as an assistant building surveyor for 3-4 years. Thereafter, he set up his own practice and was first registered as a building surveyor in Victoria in 2008, based upon mutual recognition of his overseas qualifications.[28]
3. The Respondent established AAPB when he registered as a building surveyor. He established a home office at Berwick and a virtual office in Melbourne. He also established a website.[29]
4. At the time when the Applicant first approached the Respondent, he had been operating his business as a registered building surveyor for less than 12 months.

1. The Respondent had not undertaken any formal vocational training in Australia and otherwise accumulated his knowledge while on the job. He was cross-examined extensively about the domestic building regulatory regime and demonstrated a very general understanding, while having some difficulty or showing reluctance in answering some questions.
2. The Respondent estimated that he would have issued at least 10 Owner Builder permits up to 1 March 2009.

1. The Respondent admitted under cross examination that:
   • (a) In performing his role as the appointed building surveyor:

(i) Neither the building permit, nor a Notice in accordance with BR 317, was ever displayed on the building site;

(ii) He never recorded the names of any registered builder on the building permit, because none had been appointed when it was first issued and the Applicant never changed her status from Owner Builder;

(iii) Furthermore, he did not record any registered builders in his file for the purpose of the occupancy permit, because the Applicant had not advised him to do so;

(iv) At no time during the project did the Respondent advise the Applicant that either Laukert or Terry B should be noted on the building permit and covered by insurance;

(v) He had prepared Inspection Reports in the form of emails sent after an inspection. However, he agreed he did not prepare any formal reports, as he believed he did not have to;

(vi) He made no hand written notes on site during any site inspections, other than some brief notes which appear on the Plans; and

(vii) He made no file notes of any of his telephone conversations, other than as confirmed by subsequent emails.

(b) He assumed that the Applicant would be using registered builders, as disclosed in her application for an Owner Builder's permit. Where builders are not notified to the building surveyor prior to issuing a building permit, then the builder will not be recorded on the permit;

(c) When he issued a building permit to the Applicant, as an Owner Builder, all registered building practitioners become that Owner Builder's subcontractors;

(d) He described the frame which he inspected on 29 (or 30) April 2009 as 'substantially non-compliant'; and later conceded that the frame was 'substantially defective';

(e) He agreed that a builder engaged under a major domestic building contract will be 'A person who is in charge of the carrying out of building work' for the purpose of the BA and BR and not the Owner Builder. However, he did not issue a direction to Laukart to rectify the defective frame, 'because he is not my client';

(f) If he became aware of any breaches of the DBCA, he agreed he had a duty to take action as appropriate, as the relevant building surveyor. For instance, if he was aware of an unregistered builder, he agreed he would have to take action, such as advising the home owner that the builder must be registered. However, he did not consider that he had a duty to enquire of builders on a building site;

(g) Where he had to issue Orders or Notices he was entitled to charge an additional fee;

(h) He agreed with most of the implied terms alleged under paragraph 5 of the Points of Claim, although these had been denied in the corresponding paragraph of the Points of Defence; and

(i) He acknowledged that his function as a relevant building surveyor is an important part of the consumer protection provisions of the BA and the DBCA.

54 In his witness statement he confirmed that, as an Owner Builder, the Applicant was responsible for the works on site, and he did not need to concern himself with her 'subcontractors'. Furthermore, it was for the Applicant to manage her 'subcontractors' and any problems caused by them were her responsibility, not his.

1. In relation to the defective and non-complying building work generally, the Respondent:
   • (a) attributed responsibility for all defects and non-compliance, including the need to issue a Stop Work Order in respect of the second frame, to a failure on the part of the Applicant to properly supervise the building work as Owner Builder;
   • (b) conceded that the frame constructed by Laukert [CHI] was substantially defective, but he still insisted that it could have been rectified and blamed the Applicant for the failure to do this; and
   • (c) blamed the Applicant for any fall out between various building professionals.
2. I note that there were a number of actions taken by the Respondent toward the Applicant, which Applicant's Counsel submitted were evidence of vindictive behaviour on the part of the Respondent toward the Applicant, for instance:

• (a) his refusal to accept an application for a building permit unless it had his logo on it;
  • (b) his refusal to provide the Applicant with details of the work claimed on his invoices;
  • (c) his provocative email regarding the VCAT proceedings brought against the Applicant by CHI, for payment for the defective first frame;[30]
  • (d) apparently intervening in the relationship between the Applicant and certain parties such as Terry B and Hodgson, by advising them of certain things which the Applicant had done;
  • (e) his refusal to consent to his replacement as relevant building surveyor;

1. his refusal to comply with the BC's directions to provide documents and information to the new building surveyor, Mr Lorenzini;[31] and

• (g) his refusal to discover his file, which he could not explain.

3. While these matters may reflect adversely upon the Respondent's professional conduct and did cause some unreasonable delay, they do not otherwise serve to substantiate the specific claims made in this Application.

1. Mr Orders, an electrician, introduced the Applicant to Terry Bartzis ('Terry B'), who told her he was a registered builder with 38 years experience and would be able to help her get the project done quickly, especially as his son, George Bartzis ('George B'), a solicitor, would be able to assist with any legal issues, including the planning permit. Terry B said he would build her house, as the builder, for a cost of $185,000. She relied upon his advice.
2. The Applicant learned much later that Terry B was in fact only registered as a domestic builder limited to carpentry works and accordingly was not suitably registered to build a home. She was also subsequently advised by her solicitors that Terry B did not have the required insurance and accordingly a building permit would never have been issued to him as a builder.

1. During late 2008, Terry B raised with the Applicant the issue of being an Owner Builder. He was very keen for her to make such application and during one of their meetings at his house, his son George B produced an Owner Builder application form. The Applicant did not know what being an Owner Builder meant and it was never explained to her.
2. George B filled out the form himself, using information which his father and the Applicant gave to him. George B seemed to know what he was doing and both father and son gave the Applicant confidence that everything was in order. George B sat on one side of her while his father sat on the other.
3. Neither George nor Terry B read any document to her or explained anything to her in the Owner Builder application. She did not read the Application; and she did not read 'Understanding the Application Process'.[32] She did not ask any questions, as she trusted them.
4. Once the form was completed, George B told the Applicant to sign it, directed her as to the documents she needed to attach to the form and take it directly to the BPB, to allow works to commence without delay.
5. At this time, the Applicant had no idea what obligations she was assuming as an Owner Builder; she did not know what was the BPB; and otherwise believed that what she was doing was appropriate. She relied upon the advice and direction of Terry and George B and trusted their advice.
6. By letter dated 17 December 2008, the Applicant received a Certificate of Consent from the BPB. She does not recall whether an information sheet was enclosed and did not pay any attention to it. In particular, she has no recollection of seeing, and did not read any Application Kit. If George B had the Owner Builder Kit he did not give a copy to her. The Respondent confirmed in oral evidence that he had no knowledge of whether the Applicant did or did not receive such Kit.
7. In late 2008, Terry B advised the Applicant that, owing to ill-health, he could not undertake the building works. Terry B in fact came back into the building project at a later stage.

1. George Bartzis[33] (George B) is the son of Terry B and a practising solicitor. He confirmed that he performed building work for his father on the building site at weekends. He had no knowledge of what took place during the week; and agreed he did not know what his father was saying to the Applicant.
2. In relation to the Owner Builder Application Kit, George B stated:

I certainly did not provide any advice or direction to her in relation to becoming an Owner Builder

I do not recall filling out an Owner Builder application form for her and I do not think that I did

1. However, George B was not asked to identify whether he recognised his handwriting in the completed form, the original of which was produced to the Tribunal.
2. George B stated that his father had operated Talon Constructions Pty Ltd for a number of years, of which he was also a Director. While his father was a registered builder he was only a carpenter. Nevertheless, he was aware that his father subsequently demolished the first frame, and rebuilt a new frame with extensive brickwork.[34]
3. At one point he suggested that he had seen the Applicant carrying out construction work herself, with power tools. When challenged by the Tribunal about this testimony, George B could give only one example: once when he was on site, his father was positioning a bottom plate and asked the Applicant if the location was what she wanted; she had suggested that the position (of a built in robe) could be moved, and Terry B complied.
4. In my view, the content and tenor of George B's evidence raises serious concerns as to his reliability and credibility. In particular:
   • (a) There is no evidence that the Applicant ever engaged in performing building work or used power tools as alleged;
   • (b) He claimed not to be aware of major problems with the frame constructed by his father, notwithstanding that he admitted to assisting his father with building work on the site at weekends; he was otherwise familiar with the scope of the works; and he was aware of the Stop Work Order because of illegal work;
   • (c) While he assisted his father in relation to all documentation and legal requirements, he purported to have limited knowledge as to the applicable regulatory regime and pertinent aspects of his father's position. In particular:

(i) He claimed not to be familiar with the requirements under the BA for insurance;

(ii) In his statement he says that his father did have insurance, whereas in oral evidence he did not know his father's insurance arrangements;

(iii) He agreed that he had assisted his father with the letter of demand;

(iv) He agreed there no was written agreement between the Applicant and his father, who was therefore in breach of the DBCA; and

(v) He agreed that he had not found an insurance policy which shows that the building works were covered for 2009.

1. In about October 2008, the Applicant engaged Roy Hodgson[35] ('Hodgson') to provide drafting services for the building project. Hodgson told the Applicant he might get a planner to discuss the plans, so the Applicant approached Adie Zagami Town Planner, who was recommended to her by a friend.
2. In his witness statement, Hodgson says that he understood that the Applicant was building as an Owner Builder [although he made no written record to that effect] and she intended to live in the home. In his oral evidence he said that he advised the Applicant of the process and that she should obtain advice from the BC. [At a subsequent meeting the Applicant said she did not have time to read the lengthy and complex Owner Builder documentation.]
3. The Applicant provided to Hodgson earlier drawings[36] and asked for amendments to be incorporated. On 28 November 2008, Hodgson forwarded drawings to the Applicant,[37] which were then used to apply for the planning permit.
4. Hodgson agreed that the Applicant paid him $5,000 cash for the design and copies. She refused to sign his fee proposal, which she said was too long and complex.
5. The witness statement originally filed on behalf of Hodgson contained paragraph 11 as follows:

I understand that Ms Orders now alleges that Steve Maloney and AABP are responsible for the delays and difficulties she encountered on the Project. I cannot see on what grounds she would make this allegation. According to my recollection, Mr Maloney was a capable building surveyor who dealt with Ms Orders patiently. My experience of the Project was that such problems as it did encounter resulted from the fact that Ms Orders made numerous changes to the building's design and that she did so without prior consultation with the building professionals engaged on the Project.

1. Under cross-examination he agreed that he could not make the statement in paragraph 11 of his Statement and that it should be deleted.
2. He agreed that his involvement was very limited. In particular, he was not aware:
   • (a) whether the Applicant had engaged CHI as registered builder under a major domestic building contract;
   • (b) that CHI engaged Vince Urbano as concreter [not registered]; or
   • (c) that the licensed plumber told the Applicant to put the tank underground.[38] He agreed that he assumed that the Applicant gave the directions to place the tank in the ground.
3. Paragraph 10 of his witness statement states:

Throughout the course of the Project, my point of contact was Ms Orders herself, as owner-builder. Although she engaged a number of subcontractors, I do not recall that she engaged a builder to oversee the entire Project or parts of it.

1. This statement appears to be inconsistent with the following:
   • (a) In oral evidence he agreed that he did not know that the Applicant had engaged Phyland and Terry B and that she took their advice in relation to changes to the plans;
   • (b) The contemporaneous note prepared by Hodgson, when he first discussed the Project with the Applicant in late 2008, which records that he was told by the Applicant that she had a builder, Terry Bartzis, and the figure $200K is also noted;[39] and
   • (c) In correspondence from Hodgson to the Applicant he refers to 'your builder'.[40]
2. There appears to have been a serious falling out between the Applicant and Hodgson following his receipt of earlier drawings prepared by him, which appeared to have been amended without his prior knowledge or consent.[41] In his oral evidence, Hodgson said that he had received a phone call initiated by the Respondent, who told him someone had been amending his drawings. Hodgson asked the Respondent to email him the amended drawings, which he did.[42] After Hodgson received these amended drawings, there are a series of somewhat acrimonious emails between Hodgson and the Applicant where Hodgson assumed that the Applicant was personally responsible for the unauthorised changes.[43] The Applicant gave extensive evidence about the circumstances leading up to these amended drawings, which I will deal with elsewhere.
3. In my view, the evidence of Hodgson did not assist the Respondent's case. His witness statement was substantially undermined in oral evidence and he appeared to have formed certain views about the role performed by the Applicant in the building process, for which he could provide no basis. I am also concerned that his evidence was tainted by a mindset against the Applicant, as reflected in the following email sent by Hodgson to the Respondent's solicitors dated 2 May 2012, in which he states:[44]

I wish you and Steve all the best at VCAT and look forward to hearing of a favourable outcome.

1. The Applicant obtained the name of the Respondent, as a potential building surveyor for her project, from an online advertisement.
2. On 14 January 2009, the Applicant telephoned the Respondent and told him she was building a 2 storey house and that she had a builder and a Certificate of Consent.
3. He requested certain preliminary information and then emailed to her, under the letterhead of AABP, a document described as a Fee Proposal, offering to provide building surveying services,[45] together with an application for a building permit.
4. The Respondent agreed that the Applicant had engaged his services on the basis of the written Fee Proposal, whereby his services as a building surveyor would be provided.[46] He understood that AABP was a separate legal entity to himself, but it could not be the relevant building surveyor, which must be a natural person.
5. The Respondent also agreed that the Fee Proposal provided that he would arrange and carry out four mandatory inspections. He further agreed that his duties included:
   • (a) providing advice following such inspections about any concerns; and
   • (b) ensuring that all works on site complied with the BA and BR.

1. On about 20 January 2009, the Applicant again telephoned the Respondent to advise him that she did not know how to complete his application for a building permit. He suggested a meeting during which he could help her complete the form.
2. On 24 January 2009, the Respondent attended the Applicant's home, as arranged, at which time she advised him that she had not been involved in a building project before and that she did not know how to fill in an application for a building permit. He responded to the effect: [47]

that's okay, just fill in your name and address and I will do the rest.

1. The Applicant completed: her name, current address and project address; and the Respondent completed all other sections of the form, including the estimated cost of the building of $200,000. The Applicant told him that the slab and frame would be built by a registered builder. He did not query this and asked her to sign the form. He also asked for a copy of the Certificate of Consent to be attached to the application for building permit. The Applicant had no reason to believe that everything was not in order and relied upon the Respondent's apparent expertise.
2. The Respondent could not recall what was said at this meeting, but did not dispute the Applicant's evidence.
3. He also agreed that he was aware of the responsibilities of an Owner Builder, at the relevant time, as described in the Owner Builder Application Kit and Information Statement.[48]
4. The Respondent took away the application form from their initial meeting. For the purpose of issuing a building permit to the Applicant, he relied solely on the Owner Builder Certificate of Consent, which he agreed was given to him in the following circumstances:
   • (a) He did not have any discussion with the Applicant about the Certificate of Consent;
   • (b) He knew she was not going to perform the building work herself and did not dispute that she told him she was engaging a registered builder;
   • (c) He did not obtain any information about registered builders or insurance;
   • (d) She told him she was obtaining quotes prior to the issuing of a building permit and he had seen quotes on her desk when he went to her house;
   • (e) He did not ask her what part of the building work she was proposing to have constructed under a major domestic building contract;
   • (f) He assumed that the Applicant would have had the Owner Builder Information Kit because she had a Certificate of Consent and would have had to sign a Statutory Declaration. He further assumed that the BC had the responsibility to check or confirm information and be satisfied she had the ability to be an Owner Builder, but he agreed that he did not consciously think about this at the time. He was not aware that the Certificate of Consent serves to restrict an Owner Builder to one building project every three years. The process does not otherwise assess the competency of a person to be an Owner Builder; and
   • (g) He did not ask any questions about the Applicant's ability to act as an Owner Builder and did not believe he was under any obligation to alert her to the risks and obligations of an Owner Builder or provide any advice and did not do so.

It is not my role to provide basic regulatory advice about Owner Builders.[49]

1. The Respondent agreed that he expected that the Applicant would have to engage builders, carpenters and concreters and that they would be engaged under a major domestic building contract. However, he did not accept that s 24A(2) of the BA applied and asserted that the Applicant fell under s 24A(3), which applies to an Owner Builder. He considered that it was her obligation to tell him otherwise and seek an amendment to the permit. In the meantime, he considered that she fell under 24A(3) of the BA because she was an Owner Builder.[50]
2. The Respondent confirmed that at no time before or after issuing the permit did he advise the Applicant, either verbally or in writing, about the circumstances in which a registered builder should be covered by insurance and engaged under a major domestic building contract; or her obligation to notify him of their particulars within 14 days, so they could be noted on the permit.
3. The Respondent further confirmed his understanding that he did not have to give any of the above advice. He relied wholly upon the Applicant's Owner Builder status. It was an Owner Builder's obligation to ensure that they engaged registered builders with requisite insurance. Any change of builder must be advised by the owner to the building surveyor. He did not consider that he had any obligation to make enquiry of the Owner Builder.
4. On 16 February 2009,[51] there is an exchange of emails between the parties wherein the Respondent has endorsed comments upon the Applicant's email, which refers to getting information from her registered builder, that is, prior to the issue of the building permit. The Respondent did not enquire as to particulars of such builder or their insurance.
5. The building permit provided for four mandatory notification stages, which the Applicant understood that the builder would organise. When she was advised that Terry B was too ill to continue, she sought quotes from other builders.[52]
6. By this time, the Applicant had now engaged Roy Hodgson Draftsman; Allan Seward Civil Engineer and Barry Gale Civil Engineer.[53] However, as at 24 January 2009 there was only a preliminary drawing, and no engineering drawings. Hodgson subsequently provided drawings directly to the Respondent.
7. By Regulatory Advice Note date 27 January 2009,[54] addressed to the Applicant and Hodgson, the Respondent sought various particulars for the Permit.
8. The Applicant agreed that she arranged for the Protection Work Notices to be served upon neighbours, as instructed by the Respondent.[55]
9. On 1 March 2009, [56] the Respondent issued the building permit.
10. The Respondent said that he believed that the Applicant was the 'builder' and that her registered builders were merely 'subcontractors'.[57] Subsequently, he asserted that he did not need to know about the registered builders until the time of issuing the Occupancy Permit, when they would need to be recorded on that Permit, instead of the building permit. I agree with Applicant's Counsel that such a belief is:
    • (a) contrary to the legislative requirements;
    • (b) contrary to the Practice Note;
    • (c) contrary to the Information Kit; and
    • (d) inconsistent with his email of 13 December 2010,[58] in which he queries the involvement of Phyland and Dowling, noting that neither were recorded on the building permit.
11. In summary, the Respondent dealt with the Applicant on the following basis:[59]
    • (a) She presented herself as an Owner Builder, having applied for and been issued the requisite Certificate of Consent;
    • (b) He took the Owner Builder Certificate of Consent at face value and did not assess her eligibility or suitability to be an Owner Builder;
    • (c) He has no obligation to advise or enquire about an owner's understanding of the BA or DBCA or whether they had requisite knowledge to comply with their obligations as an Owner Builder; [60]
    • (d) The following reference in the Owner Builder Information Kit, under the role of a building surveyor:

Help you to achieve compliance within the regulations[61]

refers to the building surveyor's duties to obtain all requisite information required for the issue of a building permit;

(e) As an Owner Builder, the Applicant had undertaken to supervise building work not carried out by her and it was not his responsibility to ensure or enquire whether she was able to do this;

(f) When he issued the building permit to the Applicant he considered that he had a sound knowledge of the BA and BR; and the DBCA and the regulatory requirements;

(g) He never agreed to provide additional consultancy services to her, outside his obligations as the relevant building surveyor;

(h) He issued the building permit prior to the Applicant engaging any builder;

(i) The Applicant, as Owner Builder, is then obliged to notify the relevant building surveyor of the appointment of any subsequent builder so they can be noted on the Occupancy Permit;

(j) He first learnt that a builder was on site when he was called to a slab inspection, but agreed he made no enquiries as to what builder/s had been engaged;

(k) He regarded the Applicant as the Owner Builder, throughout the building project, even after she engaged registered builders;

(l) As the Owner Builder, the Applicant was responsible for what happened on site, including overseeing the works;

(m) He agreed that the Applicant would not be performing the work herself, but he did not know what knowledge she had of building; and he did not know what work she would be doing;

(n) It was the Applicant's obligation to advise the building surveyor that she no longer wished to be an Owner Builder, which would give rise to the issue of an amended permit recording a registered builder;

(o) It was not his responsibility to advise her about major domestic building contracts or requisite insurance as he was dealing with her as an Owner Builder. He was not thinking in terms of an owner who might be 'duped' by an unscrupulous builder;

(p) It was not his responsibility to monitor dubious or unscrupulous builders; and

(q) He agreed that the role of an Owner Builder was not easy and not one he would take on himself.

1. The Applicant was referred by Hodgson to another builder, Heino Laukert ('Laukert') of Civic Home Improvements Pty Ltd ('CHI').[62]
2. In about January/February 2009, she first met Laukert who told her he was a registered building practitioner, would be able to build the slab and frame for her and that he had insurance to cover the works[63] (although she later discovered that he did not have any such insurance).
3. On 4 March 2009, the Applicant signed an HIA contract with CHI[64] and then advised the Respondent that she had engaged Laukert of CHI as her builder. The Respondent told her that was okay and she agreed for him to communicate directly with Laukert, which she thought was appropriate, as she knew nothing about building.
4. On 7 March 2009, CHI commenced building works.
5. The Applicant would often be on site to take pictures, but she never supervised the building work or gave instructions to the workers in relation to how they should perform their work. She did not complain about workers at any stage. She would often bring them coffee, beer and cooked meals. She was happy to see the slab poured and she believed the workers were happy. She denied being 'emotionally involved in the project' or 'demanding'.[65]
6. The Applicant said that issues arose during the early weeks concerning an underground water tank, which was not shown on the plans. In addition, there were many deviations from the approved drawings and problems with the slab.
7. The Applicant said that it was the plumber's idea to install an underground water tank. She was agreeable and left the installation of the tank to the concreter, Vincent Urbano, and the plumber. She agreed that she did not discuss the underground water tank with the Respondent, as she left this to CHI, as the builder.
8. The Respondent confirmed that there are currently no documents from CHI in his file, notwithstanding that he did receive emails and facsimile transmissions from them. The Respondent's explanation was that he suffered a corruption of his hard drive in 2009 which he referred to a friend to retrieve his files.
9. Counsel for the Applicant produced copies of emails and facsimile transmissions between the Respondent and CHI;[66] and one between the Respondent and the Applicant, which refers to his conversations with CHI. The Respondent could not explain why the fax was not on his file, suggesting it may have been because it was inconsequential.
10. By letter dated 28 October 2011, the Respondent's solicitors advised that the Respondent did not recall any correspondence between him and CHI or TCS [Terry B]. The Respondent agreed they must have been his instructions at the time.
11. In my view, the Respondent's evidence about the missing CHI files is both unsatisfactory and unconvincing.

1. Urbano was engaged by CHI [Heino Laukart] to lay the slab for the building works. Urbano was not a registered builder. He understood that the Applicant was the Owner Builder for the project, although he did not see any documentation to that effect.
2. His witness statement contains the following references:[67]
   • (a) 'she was on site overseeing the works most days';
   • (b) 'I recall that she was difficult to work for';
   • (c) 'she was very emotionally involved in the project';
   • (d) 'she was very demanding';
   • (e) 'as far as I could tell she did not have any building expertise or previous construction experience'.
3. Significantly, the statements in paragraphs (a) to (d) above were not confirmed by Urbano in his oral evidence. In particular:
   • (a) The Applicant came to the building site most days to see the works progress and take photos, she was happy and excited to see her house being built. She was not directing what to do, just asking about what was happening;
   • (b) The Applicant was never demanding to him and she never made any complaints about him;
   • (c) The Applicant made him and his crew, coffee and cakes; and when the slab was finished, she prepared a meal for them and brought it to the site, with beer;
   • (d) They never had any disputes and he had no difficulties with her and no complaints;
   • (e) The only time he observed the Applicant being a bit emotional and in tears was when the works were stopped; and she was demanding of CHI after that issue; and
   • (f) 'By overseeing the works' he meant that the Applicant attended the site to observe works in progress.
4. Urbano gave no evidence of the Applicant otherwise being difficult or emotionally involved.
5. Urbano confirmed that he rang the Respondent directly to organise a number of inspections. At the first pre-slab inspection, the Respondent placed a Stop Work Order upon discovering a water tank. Laukert was the site supervisor.
6. The Applicant only ever saw Urbano on site. She confirmed that he was engaged by CHI; she did not employ or retain him; she did not agree to pay him; and never discussed being an Owner Builder with him.
7. In my view, the evidence of Urbano does not assist the Respondent's case and is otherwise materially consistent with the evidence of the Applicant.

First Mandatory (Slab) Inspection - 12 & 13 March 2009

1. The Respondent confirmed that he was contacted by the concreter Urbano to book an inspection of the slab. The Respondent attended the site for the first time on 12 March 2009 and again on 13 March. Two inspections were required for a tree root barrier.
2. When he attended the site on 13 March 2009, the Respondent agreed there were a number of men present, but could not remember seeing the Applicant. He did not remember what happened other than by reference to his subsequent email. Other than his email, he does not have any notes of his inspection. He remembered seeing a water tank and he was shocked because he did not know anything about that - not being on the permit plans. He observed that the tank projected into the structural foundation which did not comply with the permit and therefore the BA. He agreed that what he inspected were illegal building works. He agreed this was a substantial departure from the permit and of substantial concern. He had a 'significant concern' as to whether the tank would comply with the structural design.
3. The Respondent was aware that a concreter was engaged to do work. However, he did not make any enquiries to ascertain:
   • (a) that CHI were appointed as registered builder and had in fact engaged the concreter;
   • (b) who was in charge of the work, as he believed that the Owner Builder was in charge of the work; or
   • (c) who was the registered builder who performed the work, as he assumed that the Applicant would have instructed the builders to install the tank.

1. The Respondent agreed that:
   • (a) He knew the work must have been carried out by a builder, who had to be registered and covered by the required insurance. However, he did not consider he had to make any enquiries of the workmen on site as it was not his role or statutory obligation to enquire into or ensure that the workmen satisfied other regulatory requirements;
   • (b) He made no enquiries of anyone as to why there was no Notice on site advising about the builder; or whether there were approved structural drawings on site. He did not see a sign at any stage. He agreed that all building sites required a sign, but he did not take any action; and
   • (c) He did not issue any directions under the BA or a Building Notice. He did issue an oral Stop Work on site pending confirmation by the engineer.
2. As a consequence of the Stop Work Order, Urbano could not work that day, and demanded an extra $500 cash, which the Applicant said she delivered to his home.[68]
3. The Applicant then had difficulty obtaining requisite advice from an engineer:

• (a) She called BGE but they had no-one available;

1. She called another engineer to prepare a report, but the Respondent refused to accept another engineer's report, insisting that it must be BGE;[69]

• (c) Eventually, BGE sent an engineer to the site; he spoke to Urbano; remained for 10 minutes and charged $605.

4. Following the first mandatory inspection there followed a series of emails between the Respondent, BGE and the Applicant concerning an amendment to the building permit to accommodate the water tank.[70]
5. The Applicant states to the effect that the Respondent continued to deal directly with her building practitioners. In particular:
   • (a) The Respondent contacted Laukert directly regarding inspections and other matters;[71] and there were a lot of disputes between the Respondent, Laukert, BGE and the Applicant; and
   • (b) The Applicant never received any prior written notification of inspections of the slab stage works from the Respondent.
6. By email dated 17 March 2009, the Respondent advised the Applicant that four inspections had been carried out to date; an additional fee would therefore be charged for the further three requisite inspections; and a further fee would also be charged for a variation to the building permit, required because of the placement of the water tank.[72]
7. By email dated 18 March 2009, BGE advised the Respondent that it would be updating its drawings to reflect the amendments by reason of the inclusion of the water tank.[73]
8. By email dated 19 March 2009, having received the updated engineering drawings, the Respondent advised the Applicant that the reinforcement inspection carried out that day was approved (unconditionally). He requested that she complete an application for an amended building permit for the revised structural works.[74] At that time he considered that, because the footings and reinforcement complied with the amended structural engineering designs incorporating the water tank: he could approve the reinforcement; and amending the building permit was an administrative matter that could be dealt with as the project continued.[75] Concrete for the footings was poured on 20 March 2009.[76]
9. The Respondent followed up the application for an amended building permit in respect of the water tank, by email on 1 May 2009 and again on 2 August 2009.[77]
10. Laukert continued with the works and completed the frame during March/April 2009. The Applicant was not advised by the Respondent about any problems having the frame proceed before the issues with the slab were resolved.
11. During the period 10 April to 9 May 2009, the Applicant was overseas. Accordingly, she was not present for the first frame inspection.
12. On 29 April 2009, while in Singapore, the Applicant received a phone call from Laukert demanding $44,000. He said that the Respondent had inspected and approved the frame subject to the approval of the engineer.
13. The parties gave differing accounts of the precise timing and circumstances of the first frame inspection.

1. The Respondent said that a couple of days prior to frame inspection, he learnt that CHI was engaged as the builder.[78] The Respondent said that 'James' of CHI requested a frame inspection on about 30 April 2009.
2. On about 1 May 2009, the Respondent conducted a frame inspection and found departures from the engineering drawings: the truss layout was not in accordance with the plan; the frame had a 'distinct wobble'; and there were some other minor discrepancies. He advised James and asked that the engineer look at it.[79]
3. In relation to the frame inspection, the Respondent:
   • (a) did not consider that he should then take a closer look at the workmanship, to ascertain what needed to be done;
   • (b) agreed there was a lot of poor workmanship;
   • (c) did not make any enquiries of Laukert as to whether he was registered, as he did not consider that was his responsibility;
   • (d) would have made a list of defects on site but does not have that list and does not specifically recall; and
   • (e) would not have kept any list on file, once he sent the email.
4. On 1 May 2009, an email records James of CHI forwarding photos to the Respondent as requested. The Respondent did not recall requesting photos from James of CHI and did not recall whether this related to the resolution of minor issues referred to by him in a subsequent email to the Applicant. He agreed that it would not be appropriate to receive photos as proof of rectification works having been performed. However, he then confirmed that he would approve an inspection subject to receipt of a photograph demonstrating compliance with small omissions, such as the provision of a fire hydrant.
5. The email referable to the frame inspection[80] is dated 1 May 2009, in which the Respondent refers to an inspection of the previous day, that is 30 April. This email was sent to BGE only.
6. The email refers to:

...the frame actually wobbles when you are standing on the first floor.

It appears that all the bracing specified on your drawings has been installed.[81]

1. The Respondent agreed that the email is not identified as an inspection report [although he said it was] and it did not go to the Applicant or the builder CHI.
2. At this point of the Hearing, the Respondent was cross-examined extensively about the Structural Drawings; the meaning of certain notations which he had made upon such Drawings; and his recollection and understanding generally as to the nature of defects and incomplete work following the first frame inspection.[82] I do not propose to summarise this evidence in any detail other than to summarise its effect:
   • (a) The Respondent had not made any written notes to accompany and explain the notations made on the Plans;
   • (b) He could not recall precisely what his system of ticks was meant to indicate, other than (presumably) approval;
   • (c) He could not recall precisely what his system of circling items was meant to indicate, other than (presumably) non-compliance in some respect;
   • (d) He could not otherwise explain many of the notations at all;[83]
   • (e) Not all of the defective items which appear to be identified on the Plan, including the circled items, were reflected in his subsequent email to BGE;[84]
   • (f) He also agreed that he either did not notice and/or did not identify, by way of notation on the Plans, many defects;[85]
   • (g) He could not explain why he did not record the issues of concern and agreed that he should have kept better records;
   • (h) He agreed that the frame showed very poor workmanship;
   • (i) He conceded that the frame was 'substantially non-compliant' and 'substantially defective';
   • (j) He agreed that the report prepared by Phyland[86] lists many defects which he did not identify at all; and on the basis of Phyland's report, the frame was substantially non-compliant;
   • (k) In his witness statement, the Respondent stated:

The frame appeared to have been constructed largely in accordance with the building permit documentation. However, I had a number of queries for the structural engineer...[87]

(l) Notwithstanding other concessions made, the Respondent continued to endorse the above statement and still believed he approached the inspection in the right way;

(m) He confirmed that the form of Inspection Report which he was using in 2011 was not set up in his system at the relevant time;

(n) After conducting the frame inspection, the Respondent did not issue an Order[88] but rather an oral approval of the frame to Laukert, subject to engineer's sign off. He did not record this instruction to Laukert but confirmed this in writing to the Applicant days later;

(o) He did not think about the costs to the Applicant involved in further amended drawings, engineer inspections and amended building permit;

(p) He agreed that the defects with this frame were not standard industry practice, as advised in his email to the Applicant; and

(q) He agreed that he tried to convey to the Applicant not to be too concerned. He believed at the time that the outstanding matters could be resolved by the engineers.

1. Following the Applicant's receipt of Laukert's telephone demand for payment; and the Respondent's email advice to CHI on 1 May 2009 that the frame had a 'distinct wobble'; Laukert confirmed to the Applicant by email on 5 May 2009 that the Respondent told him the frame was approved. To this point, the Applicant had received no direct advice from the Respondent following the frame inspection.
2. It is appropriate to set out two emails, to which I will comment further in due course.
3. On 5 May 2009, the Applicant sent the following email to the Respondent:

Please see reply from builder (Civic Home Improvement).

My understanding is that the framework structure is unstable. Have you passed the frameworks inspection?

If necessary, I may have to get another company engineer to check on BGE's drawings. Please advise.[89]

1. The Respondent then sent an email to the Applicant, also dated 5 May, as follows:

Who says the framework is unstable? All I have stated is that there is a wobble to the frame, which is unusual.

I carried out a frame inspection with Heino on site and a number of minor issues were resolved by his carpenter whilst I was on site.[90] There were other items that I raised at the time of the inspection and even though Heino and his truss manufacturer offered assurances on the installation, it did not fully comply with the structural documentation and I sought the comments of your structural engineer (standard industry practice).

Therefore the inspection was Approved subject to the engineer signing off on my queries, as there were a number of elements not strictly in accordance with the structural design documentation (this is not unusual).

[the Respondent then sets out what he notified the structural engineer]

This is standard industry practice within the industry when alterations occur on site. If your engineer inspects the frame and is OK with its construction then the frame will be approved.

My professional advice to you is to get the frame inspected by BGE and then take whatever action you feel necessary after receiving the engineer's report - otherwise we will just go around in a circle issuing emails to no avail.[91]

1. The Respondent agreed that his email to BGE effectively sought an engineer's sign off to the frame as-built. If BGE did so, the construction would still not comply with the drawings, although structurally sound. The Respondent further agreed that the engineer would need to have prepared new certified drawings and computations to accompany a further application for an amended permit. None of this was advised to the Applicant.
2. The Respondent could not explain why, instead of referring the matter to BGE, he did not issue a direction to CHI to comply with the plans or else amend the plans and submit for an amended permit, at CHI's expense.
3. The Applicant did not understand what the Respondent's email [of 5 May 2009] meant, in view of the identified wobble. While still overseas, the Applicant endeavoured to arrange for BGE to conduct an inspection and provide a report.[92] She tried to get CHI to pay for this while CHI continued to make demands for payment for the frame.[93] At this stage the Applicant did not know whether the 'wobbly frame' was due to bad design or bad workmanship.
4. On 9 May 2009, the Applicant arranged for an independent carpenter, David Rowe, to inspect the frame. In addition, her children took photos and videos.[94] Mr Orders also identified defective works to bring to the attention of the structural engineer.
5. A video taken by her children on 9 May 2009, was played to the Tribunal which demonstrated obvious defects including: incorrect gauge bracing; wobbly frame; short noggins; and insecure window/door frames.
6. On 12 May 2009, Mr Navin Datt of BGE attended for a site inspection in the presence of Laukert (who continued to demand payment)[95] and Mr Orders, on behalf of the Applicant. Both Laukert and Datt left the site before completing the inspection.
7. By email dated 12 May 2009, Laukert advised that CHI would undertake rectification works, in accordance with the concerns raised by BGE. However, he demanded payment of $30,000 prior to the commencement of such works.
8. On 14 May 2009, there was an exchange of emails between the parties. The Respondent advised the Applicant that it was her responsibility, as Owner Builder, to construct the building as per the approved building permit documentation;[96] and that no further work could be carried out until the frame was unconditionally approved. The Applicant understood that she required the engineer's sign off.
9. On 15 May 2009, the Applicant met with BGE, at which time she:
   • (a) Raised concerns about the wobble in the frame;
   • (b) Was told it was normal for there to be a wobble until construction was completed;
   • (c) Conveyed that the builder alleged he would 'pay off' the engineers;
   • (d) Conveyed that the concreter told her that BGE had attended the site for 10 minutes only [when they charged for 3 ½ hours]; and
   • (e) Received their agreement to reduce their charge for the frame inspection.
10. BGE then produced amended drawings dated 15 May 2009 [comprising 10 pages plus 6 pages of rectification]. However, the Applicant was told that she had to pay their bills before she could get them. She subsequently received a hard copy on 19 May 2009.
11. On 18 May 2009, the Applicant received the following:
    • (a) An email from CHI advising additional costs, apparently in excess of their previous demand for $30,000 up front;
    • (b) A letter from BGE confirming that the frame was not constructed according to the plans and specifications; and referring to 'a substantial number of defects' including a list, and further stating that 'there may be additional items not on this list';[97] and
    • (c) A separate letter from BGE by which they resigned as engineer.[98] The Applicant said that their resignation was not by mutual agreement, as suggested by their letter of resignation.
12. In reference to BGE's list of defects, the Respondent admitted that at his inspection on 1 May 2009, he did notice items 1, 2, and 8 but cannot recall items 3, 4, 5, 6, 7, 9, 10, 11, 12, and 13, which he would have included in his email if he had noticed them.
13. The Respondent agreed that if all the recommendations were carried out, the frame would still not conform with the plans and therefore would still be illegal.
14. The Applicant explained that she believed BGE resigned because the Respondent had insisted that BGE be responsible for the defects, which BGE refused to do.
15. Following BGE's resignation, the Applicant had a lot of difficulty finding another structural engineer willing to take responsibility for BGE's structural drawings and computations; and also for Laukert's 'as-built' works.[99]
16. By letter dated 28 May 2009,[100] from CHI to BGE, CHI listed items which were said to have been rectified and stated that the owner would have to have discussions with Hodgson about item 9. However, the Applicant did not have this letter at the time and had no such discussions with Hodgson.
17. At this point, at a loss to know what to do, the Applicant sought advice through the Building Advice and Conciliation Victoria and eventually engaged Tony McDonough solicitor of Khor & Burr, who recommended a building consultant, Steve Fraser ('Fraser') of APDD Pty Ltd.[101]
18. On 4 June 2009, the Respondent asked the Applicant to contact David Landy Engineer of D.M. Landy & Associates Pty Ltd ('Landy').[102]
19. On 10 June 2009, after conferring with the Respondent and Fraser, Landy agreed to take on the job.[103]
20. Between 29 April and 19 July 2009, the Applicant made numerous attempts to cause CHI to carry out the necessary rectification works. She also enlisted the help of Hodgson, as he had originally recommended CHI.[104]
21. She had not arranged for any tradespeople beyond CHI. Once the frame was rectified and completed, Mr Orders was to perform all the electrical work and organise other trades at that stage.
22. On 29 June 2009, the Applicant requested the Respondent, by email, to provide particulars of documents to address the issues with the frame. In response, the Respondent said:

a complete set of documentation will be required for review.

1. The Applicant did not understand this reply and Laukert refused to provide her with any relevant documents.[105]
2. Hodgson was cross-examined about the state of the first frame and from the photos shown to him he agreed that he would not have approved the frame and would have sought rectification. At inspections, he would take notes in a notebook and write a report and would later attend to check that rectification had been done. He would not rely upon photos.

1. On 25 June 2009, the Applicant's solicitor served a Notice of Substantial Breach of Contract on CHI.[106]
2. By letter dated 9 July 2009,[107] the Applicant's solicitor provided to the Respondent, Structural Rectification Drawings prepared by Landy, asking whether he required a further building permit.
3. By letter dated 20 July 2009,[108] the Applicant's solicitor provided to the Respondent a report of Landy's inspection of the frame, dated 16 July 2009.[109] The Applicant's solicitor sought confirmation from the Respondent that he would be unable to approve the frame stage in view of the defects identified in Landy's report.
4. No response was received to either of these letters. The Respondent said he did not recall whether he responded to these letters, although he denies not responding in his defence. No responses were discovered.
5. The Respondent could not explain why he failed to respond. He initially denied that it was either unprofessional or a breach of his duties not to respond. He then admitted that it was unprofessional and it would have been better if he had responded. He did not consider the consequences for the Applicant. He conceded that he did understand that his duties as the relevant building surveyor included taking into account how his acts or omissions might affect the building owner.
6. On 20 July 2009, CHI was terminated for failing to comply with the Notice of Substantial Breach.[110]
7. The Respondent agreed that he must have known that the Applicant had engaged CHI under a major domestic building contract. When she indicated that she proposed to engage another builder [subcontractor] he gave her no advice because he still understood that she was an Owner Builder. In his view, it was not his duty to advise her as to the regulatory requirements, although he conceded that she should not be an Owner Builder.
8. Subsequently, CHI sued the Applicant in VCAT for the cost of the frame, although the defects were so numerous and serious, it could not be rectified and had to be demolished.

1. On 10 July 2009, Landy inspected the frame and reported defects to the Applicant by letter dated 16 July 2009.[111] The Applicant then sought further quotes for rectification of defects.[112]
2. The Respondent said that he would have read the Landy report upon receipt. The report indicates substantial non-compliance, which the Respondent conceded, but still insisted that the frame largely complied with the plans and Building Code.[113]
3. On 27 July 2009, Laurie Mitchell ('Mitchell') of Buildinspect Building Consultants inspected the frame, at the request of the Applicant's solicitor.
4. In his report dated 28 July 2009, Mitchell stated that the numerous defects and non-compliant building works may not be able to be repaired and would need to be rebuilt in accordance with approved documentation and legal requirements. He also suggested that an engineer be consulted with regard to the unstable structure.[114]
5. By email dated 2 August 2009, the Respondent advised the Applicant that he had not approved the frame and could not do so until the list of defects identified by BGE had been rectified. The Applicant was confused by earlier advice,[115] by which she understood that the frame had been approved and requested the Respondent's report on his inspection. No report was forthcoming. The Respondent failed to return phone calls or respond to correspondence of the Applicant's solicitor.[116]
6. On 4 August 2009, Terry Phyland ('Phyland') Engineer of Buildinspect, conducted an inspection and reported upon the frame.[117] In his report he stated that:

The defects were so numerous ...I recommend that the building be demolished and re erected correctly.

1. Schedule D to Phyland's Report sets out a list of defects. When referred to this report, the Respondent confirmed that he did not notice or cannot recall noticing items 1, 2 or 3.
2. On 5 August 2009, the Applicant engaged Phyland to 'supervise the reconstruction of the property'.[118] Phyland subsequently met with Terry B to decide what to do.
3. The Applicant said that Phyland provided to her a sheet containing his stamps.[119] Phyland told her she could cut and paste these stamps onto any amended plans. In fact the Applicant would electronically scan and paste the stamp onto the amended plan.
4. The Applicant explained how she made amendments to the Plans, as directed by Terry B or Phyland, using Photoshop.

1. In about August 2009, Terry B had recovered and was keen to perform building work for the Applicant. He offered to rectify or demolish and rebuild the frame, by September 2009, at a total cost of $15,000 for his labour plus cost of materials.
2. The Applicant provided to Terry B:
   • (a) a set of working drawings prepared by Roy Hodgson Design;
   • (b) structural drawings prepared by BGE;
   • (c) a list of defects requiring rectification;
   • (d) photos taken by the engineers, BGE and Landy; and
   • (e) the window schedule from Trend Windows.
3. The Applicant also advised Terry B that Phyland was now the supervising engineer and he should work closely with him. The Applicant also advised the Respondent that she had found a new builder, Terry B, to rectify the frame.
4. Terry B subsequently advised the Applicant that the frame was so defective that it needed to be demolished and rebuilt. Believing she had no option, the Applicant agreed to this course of action and the terms of payment previously advised by Terry B. However, subsequently, Terry B would frequently demand cash payments from the Applicant and refuse to give her receipts. He would also give her lists of materials to order or buy, at different times and directed her to pay for the materials or the accounts for them, which otherwise bore his mobile number.
5. The Applicant did not sign a written contract with Terry B and he never provided the requisite Certificate of Insurance for a major domestic building contract. She did not ask about insurance because she said that she did not know anything about it.
6. On about 13 and 14 August 2009, Terry B demolished the frame, without providing any bracing for the south boundary brick wall. As a consequence, on 15 August 2009, while George and Terry B were both working on site, the brick wall and boundary fence collapsed, falling into the neighbour's property, causing damage to their property, including the children's trampoline.
7. In his witness statement, the Respondent states that he was telephoned by Laukart in late August advising that the frame constructed by CHI had been demolished.
8. On 25 August 2009, the Respondent emailed the Applicant, seeking an update.[120]
9. In oral evidence the Respondent said that he did not know what was happening on site and it was up to the Applicant to employ a registered builder or subcontractor. It was not his responsibility that she had problems with other building practitioners.

1. Terry B constructed a new frame. However, it did not comply with the approved drawings. Terry B told the Applicant that the layout was wrong. He said that the designer 'had two left eyes', the building was crooked and there were too many windows. The Applicant told Terry B to discuss these matters with her supervising engineer as she knew nothing about building. As a consequence, at various stages, Terry B and/or Phyland would instruct the Applicant to make changes to the drawings and submit the changes to Council for approval. At no stage did the Applicant herself understand what changes required amendments to the building and/or planning permit.
2. Both parties gave a differing account as to how the first [attempted] inspection of the second frame came about.
3. On 25 August 2009, the Respondent emailed the Applicant,[121] noting that the frame had been demolished and that another structural engineer had been appointed. He requested advice in writing of her intentions so that he could advise 'the correct regulatory procedure that may be applicable.'
4. On 16 September 2009 the Applicant said:
   • (a) She was contacted by Terry B who told her that the Respondent proposed to put a stop order on site because of brick work outside the frame, which prevented him from conducting a frame inspection. He said to her, words to the effect:

I should not worry about it and that in his 38 years of building experience, not one frame that was not built in accordance with the drawings had been ordered to be demolished by the building commission.

(b) She then saw Phyland at his office and was told everything is okay; and that she should amend the working drawings to reflect the 'as-built' frame so that they could be submitted to the Council;

(c) She was told to arrange a site meeting with the Respondent and Terry B;

(d) She was told that Terry B had made some changes; and

(e) She was told that Terry B would instruct her as to what changes to make to the drawings.

1. On 16 September 2009, the Respondent said that he conducted a frame inspection, saying that someone had instructed him to check on Terry B's 'as-built' frame, as it had not been built in accordance with the building permit. He observed substantial non-compliance, because a brick wall had been constructed prior to mandatory frame inspection. He agreed the works were illegal. He has no notes of the inspection taken at the time. He could not recall whether anyone was on site. He rang the Applicant and told her he would have to issue a Stop Work Order and Building Notice and agreed to have a meeting, he said because he was trying to be reasonable.
2. Although the Respondent made the decision to issue a Stop Work Order and Building Notice at the site inspection, in fact he did not issue the Order and Notice until 2 weeks later.

1. On 2 October 2009, the Respondent conducted a further frame inspection, in the presence of the Applicant, Phyland and Terry B, at which the following occurred:
   • (a) the Applicant presented the amended working drawings to the Respondent, as requested by Phyland. These drawings were still bearing Roy Hodgson Design's Title block;
   • (b) The Applicant then described the following exchange between the parties:

Respondent: has this drawing been amended by Roy Hodgson?

Applicant: No, I made the changes as that is what Terence Phyland told me to do.

Phyland: she can update the working drawings to reflect the as built, as she is the Owner Builder - just strike out Roy Hodgson's title block.

(c) The Applicant said that the Respondent then took out his pen and struck out Hodgson Design's Title block [this is denied by the Respondent]. After further discussion, the Respondent agreed to destroy the drawings provided to him and that any further amended drawings would not make any reference to 'Roy Hodgson Design';

(d) Phyland told the Applicant to attend the Boroondara Council, to have the planning permit updated to reflect the changes he had discussed and made with Terry B. Phyland further advised the Applicant and the Respondent that BGE's computations were still applicable; and

(e) The Respondent, at the conclusion of the meeting, stated that he would issue a Stop Work Order and Building Notice, despite Phyland's objection, by reason that he could not inspect the frame, owing to the brick work that had been put up by Terry B; and because the frame was not being built in accordance with plans.

1. The Respondent agreed that he made no enquiry as to the position of Terry B and gave no advice in relation to engaging a registered builder or requisite insurance.
2. Subsequently, in November 2009, the Applicant learnt that the Respondent had not in fact destroyed the drawings as agreed but had instead forwarded them to Hodgson, advising that the Applicant had amended them. The Applicant said that this led to a dispute between her and Hodgson, with whom she had never had any prior conflict,[122] which caused her further stress and anxiety.[123]
3. The Respondent agreed that he sent Hodgson an email with drawings because of a query about the staircase.[124] The Respondent did not recall Hodgson telephoning him and asking for the drawings, which he understood had been changed. His email does not refer to any prior conversation. He denied trying to cause trouble for the Applicant by forwarding these drawings.
4. In my view, the Respondent's evidence about his further dealings with Hodgson was confused and unconvincing and reflected a continuing pattern of dealing directly with building practitioners, without reference to the Applicant.

1. On 2 October 2009, following the site inspection, the Respondent issued a Building Order To Stop Work; and also a Building Notice to show cause why the brick facade should not be demolished. The Respondent did not otherwise specify in the Building Order and Building Notice in what respects the works did not comply with the approved drawings.[125] Furthermore, the Building Notice was not accompanied by any inspection report.
2. On the same day, the Respondent also issued an invoice for the inspections on 16 September and 2 October 2009, plus fees for notices and fees in advance for checking revised documents.[126]
3. The Respondent agreed that the Building Notice did not indicate what works had been performed not in accordance with the building permit and planning documentation. However, he contended that the Applicant could look at the plans to discern the defects. The Applicant subsequently sought further information.
4. The Respondent agreed that while the Notice must be served on the owner, it is common practice to copy notices to the builder. However, the Respondent relied upon the Applicant being an Owner Builder. Furthermore, he was not informed that Terry B was the builder. He understood only that he was her carpenter.
5. At this point, the Applicant was receiving conflicting advice from the Respondent and Phyland. The Respondent could not remember being told by Phyland to the effect that the Stop Work Order was not warranted as he could conduct a frame inspection by looking behind the wall.
6. The Respondent otherwise denied that he should have issued a direction under s 37 to the responsible registered builder.

1. On 2 October 2009, the Applicant gave to the Respondent revised drawings originally prepared by Hodgson, which still bore his stamp. The Applicant said that the Respondent then told her that the drawings in that form were improper or not appropriate, whereupon he crossed out Hodgson's title block, took the drawings away and told her to redraw the drawings without Hodgson's stamp. The Applicant then provided revised drawings without Hodgson's stamp.
2. In the meantime, the Respondent scanned and emailed the revised drawings which bore Hodgson's stamp, to Hodgson. Hodgson and the Respondent each gave differing accounts as to how this came about. The Respondent said he had a query from Hodgson concerning the staircase and emailed the scanned plans at his request. Hodgson, on the other hand said the Respondent contacted him, with a query about the staircase and only then asked to see the revised plans. He first became aware of changes made to his original plans when he received an email from the Respondent. The Respondent said that he believed Hodgson was still the draftsman for the project and agreed that this led to a breakdown in the relationship between the Applicant and Hodgson.
3. Prior to 2 October 2009, Hodgson said that the Applicant made changes to the working drawings to conform with 'as-built'.
4. Hodgson later emailed the Applicant raising concerns that she had used amended plans bearing his title block without his knowledge or consent.[127]

1. On 5 October 2009,[128] the Respondent advised the Applicant of the documentation which he required to progress the Stop Work Order. The Applicant said she asked Phyland what to do and he advised her to obtain an amended Planning Permit.
2. By letter dated 5 October 2009, the Applicant wrote a letter to the Boroondara Council seeking a 'minor amendment' to the Planning Permit. Terry B told her to write that she needed wheel chair access for her 85 year old father. It was also Terry B's idea to remove the windows. All the words used in this letter were as instructed by Terry B,[129] who also told her to take certain photos and attach them to her letter. The amendments were subsequently approved.

1. By October 2009, the Applicant was dissatisfied with the way Terry B had constructed a new frame, contrary to approved plans and drawings, and arranged for another builder, Peter Stewart ('Stewart'), to rectify the problems, so that the frame could be approved.
2. When the Applicant appointed Stewart as a builder, the Respondent agreed that he did not give any advice and did not note him on the permit.
3. On 4 November 2009,[130] the Applicant sent to the Respondent:
   • (a) Planning permit with endorsed plan;
   • (b) Compliance Frame & Steel prepared by Phyland;[131] and
   • (c) Roof Truss manual;

1. On 6 November 2009, Stewart emailed to the Respondent the approved planning permit issued by the Boroondara Council, dated 4 November 2009, asking whether the drawings were acceptable.[132]
2. On 6 November 2009, the Respondent emailed the Applicant:

we have also been contacted by Peter Stewart who is assisting you with your project and provided us with some information. Can you please confirm if the attached invoice has been settled and confirm how payment was made.[133]

1. The Applicant replied, stating that the invoice had been paid on 4 November 2009, the same day that the approved amended planning permit was sent to him. The Respondent did not reply until 16 November 2009, when he again sought email confirmation as to Stewart's appointment. On the same day the Applicant wrote to the Respondent advising him that Peter Stewart of Wattleglen was now the registered subcontractor builder.[134] The Applicant said she did not understand the difference to the reference to 'builder' and 'subcontractor builder'.
2. By email dated 16 Nov 2009, the Applicant authorised the Respondent to deal with her 'new subcontractor builder' [Stewart]. The Respondent understood that Hodgson was still the Draftsman. He was never aware that the Applicant was undertaking any drafting work in relation to the structural drawings.
3. On 18 November 2009, the Respondent emailed to the Applicant, a Cancellation of Stop Work Order[135] together with a form for the Applicant to complete to amend the building permit, which she also completed on 18 November 2009.[136]
4. On 19 November 2009, the Applicant emailed the Respondent attaching an application for a building permit dated 18 November 2009[137] and drawings for his review.[138]
5. On 23 November 2009, the Respondent emailed the Applicant, with a copy to Hodgson and Stewart, requesting certain additional documents.[139] Hodgson replied to the Respondent to the effect that items now being raised were not reflected in his original drawings and he was not aware of the basis for the Building Notice.[140]
6. On 24 November 2009, the Applicant emailed the Respondent[141] to advise that Phyland is still using BGE drawings with minor changes.
7. On 24 November 2009, the Respondent replied that the Building Notice has been cancelled but that she should not proceed with any amended works until the variation to the building permit has been issued.[142]
8. When the Applicant received no response from the Respondent concerning the amended plans, Stewart arranged a site meeting with the Respondent on 25 November 2009. It became apparent that the plans did not correspond with the 'as-built' construction. Furthermore, the drawings provided by the Applicant did not have Hodgson's stamp.
9. On 25 November 2009, the Respondent emailed the Applicant, referring to the site meeting and discrepancy between drawings and 'as-built'. He then records two options which had been discussed:
   • (a) Provide fully detailed documents for the as-built/proposed structure for regulatory review and issue of an amended building permit; or
   • (b) Demolish existing structure and start again.[143]
10. By email dated 27 November 2009, the Applicant summarised the result of the 25 November site meeting and items that remained outstanding for the new builder.[144]
11. In the meantime, George B demanded payment of $25,000 cash upfront before his father would return to complete the frame. He refused to provide a timesheet for hours worked on site and was angry that another builder had been engaged.
12. On 1 December 2009,[145] the Applicant emailed Hodgson attaching Planning Permit and Ground Floor and 1st Floor Plans, which the Applicant says were sketches. The Applicant also states:

5. The design (attached) was created by me; therefore you also do not own it.

1. On 2 December 2009, Hodgson replied stating that she could not use his plans, without engaging another architect or draftsperson.[146]
2. Hodgson had refused to permit the Applicant to use his drawings. When the Respondent sent drawings with the lines on it to Hodgson on around 24 November 2009, he assumed that he was still the designer as named on the application for an amended building permit.[147]
3. By 20 December 2009:
   • (a) the Applicant had engaged Ausdraft, as the new draftsman, who made amendments to the drawings after attending the site.[148] The Applicant did not use their title block on the amended plans as they told the Applicant that they did not have the approval of Hodgson;[149] and

(b) the Respondent had still not commented upon the amended planning permit or working and engineering drawings provided to him.[150]

1. By letter dated 20 December 2009, the Applicant again requested a response, advising that the timber and other materials were exposed to the elements.
2. On 20 December 2009, the Applicant forwarded the amended drawings prepared by Ausdraft, without their title block, except the last page which was prepared by the Applicant.[151] Accordingly, the Respondent was now supplied with a different set of drawings to those supplied on 19 November 2009.
3. On 21 December 2009, the Respondent replied by email advising that his office would be closed for the holiday period and he would not be reviewing the drawings until he returned to work on 4 January 2010.[152]
4. On 5 January 2010, the Applicant followed up the Respondent by email, but received no response.[153]

1. On 5 January 2010, the frame and slab were subjected to malicious damage when windows were smashed, wet concrete poured into the sewer pipes and frame members extensively cut. As a consequence, on 7 January 2010, the City of Boroondara issued an Emergency Order because the frame was now unsafe. The Applicant secured the site with fences and cameras and a sign stating that the site had been vandalised.
2. Subsequently, both CHI and Terry B sued the Applicant in VCAT for payment of their costs, which the Applicant said she was forced to settle because she could not afford to finance a contested hearing. Terry B died in 2011.
3. On 4 February 2010, the Respondent emailed the Applicant requesting another application to amend the building permit; and sought a Certificate of Compliance for the new structural design, and a copy of the engineer's report and recommendations on the damage caused by the vandalism.[154]
4. There followed the following exchange of emails:

[from the Applicant to the Respondent][155]

I had sent you the building permit on 18 November 2009 (see attached)

You have delayed the project since 4 November 2009; do you need another three months?

[From the Respondent to the Applicant][156]

thanks for your colourful e-mail - trust the litigation is going well

as you should be aware, it is your builder's fault that you are in this situation - YOU are the builder.

I lifted the Stop Work Notice on your property sometime ago and advised you that you could continue working in accordance with the APPROVED DOCUMENTATION ONLY. Obviously you wanted to proceed with your amended design and that takes time to review.

In regards to the application form, if you wish me to use the outdated application form, then I can do so, just provide me with written confirmation from Roy, Barry and Alan that they are the respective designers for their elements of the project.

Otherwise provide an updated application form or this could drag on for another three months.

I'm sure we would all like to get this project completed.

1. On 5 February 2010, the Applicant submitted a further application for a building permit to the Respondent, as requested.[157] By this time, following months of delay since the construction of the new frame, the materials were damaged by the weather.

1. Phyland recommended his friend John Dowling ('Dowling'), a builder, to assist in repairing the frame and slab, which had been damaged.
2. On 10 February 2010, Dowling commenced rectification works.
3. On 1 March 2010, Phyland issued to the Respondent a Certificate of Compliance - Inspection, for the inspection of Dowling's frame installation for the upper floor stud and roof trusses.[158]
4. On 30 March 2010, the Applicant emailed the Respondent requesting that he contact Dowling to arrange a frame inspection.[159] The Applicant was told by Dowling that the Respondent did not make an appointment with him but merely turned up on site to inspect the frame on 31 March 2010. The Applicant received no advice from the Respondent following this inspection.
5. The Applicant was referred to plans dated 10 May 2010, which bear various amendments which she highlighted. Phyland, who was supervising Dowling's work, never told her that these changes required amendments to the Planning Permit.
6. On 25 May 2010, the Applicant emailed the Respondent to enquire about the status of his 31 March 2010 frame inspection.[160] In reply, the Respondent stated that he had made an informal site visit only; he did not inspect the frame; and did not take any plans with him to the site.
7. On 27 May 2010, the Applicant requested the Respondent to provide her with details of his invoices 191 and 312 and in particular with which subcontractors he had liaised.[161] The Respondent replied by email:

the invoices stand as they are and I will not be providing any further breakdown... If the above is not to your liking, then you may contact the building commission or your solicitor.[162]

1. Despite further requests, the Respondent continued to refuse to provide any details.[163]
2. The Respondent now says that he did not keep any records of any details. He agreed it was reasonable for her to ask. He responded the way he did as he believed his invoice was valid. He did not keep any time sheets for his work. This was consistent with his prior experience in other employment.
3. During late May 2010, while the Applicant was overseas, the Respondent wanted to inspect the site. The Applicant said that no-one was allowed on site. The Respondent threatened to use his powers to enter the site and to report the Applicant to the BC.[164] The Respondent continued to insist on a site inspection before the week ending 11 June 2010, after he claimed to have spoken to a 'Karam' at the BC. Upon returning from overseas the Applicant contacted both the BC and the Boroondara Council and was advised in each case that no employee of that name worked there.
4. On 13 June 2010, the Applicant provided to the Respondent a typed application for an amended building permit [number three].[165] Under the heading 'Owner Builder' appear the words:

I intend to carry out the work as an Owner Builder [Yes/No]

Yes, after frame construction; No, before frame construction

1. The Respondent refused to accept this application because it was not on his company's form. He also noted that:[166]

Your statement 'Yes, after frame construction; No, before frame construction' is not acceptable. You were listed as the 'Owner Builder' for all the works and remain so as far as we are aware.

1. In my view, the notation endorsed on this building permit application is significant in that it confirms the Applicant's understanding that she played no role in the building project, as builder, up to the frame stage. Furthermore, the Respondent's reply indicates a failure or refusal to recognise what in fact had been the status quo to that point in time. The Applicant's endorsement in the application again placed the Respondent on notice that the building permit should have been amended to reflect the status quo and recorded a registered builder for the slab and frame stage, together with details of required insurance.
2. On about 17 June 2010, the Respondent inspected the site and notes in his witness statement:

I found that Ms Orders had completed the second story of the frame and had covered the roof and clad the walls. The building was largely finished, but there had still been no approved frame inspection and an amended building permit reflecting the as built structure had still not been issued (nor indeed had an application for the amended building permit yet been made). I told Ms Orders that I would therefore have two issue another Building Notice and Stop Work Order.[167]

1. On 21 June 2010, the Respondent issued a Stop Work Order under s 112 and a Building Notice under s 106, requesting the Applicant to show cause why she should not be required to demolish the façade.[168] Significantly, the Order and Notice were in the same form as had been previously issued and cancelled on 18 November 2009 and 24 November 2009 respectively. Accordingly, the issue of the removal of the brick cladding to allow inspection of the frame had apparently already been addressed and resolved.
2. On 5 July 2010, the Respondent emailed the Applicant, advising that he would not approve the frame or accept the Certificate of Compliance issued by Phyland.[169] There is no explanation as to why the Certificate of Compliance prepared by Phyland, was not acceptable.
3. The Applicant still needed to obtain [and provide to the Respondent] an amended planning permit, amended working drawings, and amended structural drawings corresponding with the as-built structure.
4. On 3 November 2010, the Applicant's new solicitor Tim Landy ('Tim Landy') of Robinson Gill, wrote to the Respondent requesting that a course of action be found to enable the frame to be completed as soon as possible.[170]
5. On 9 November 2010, Tim Landy again wrote to the Respondent requesting a response.[171]
6. On 24 November 2010, Tim Landy provided revised drawings and a fourth building permit application and cheque to the Respondent. There was no planning permit for the amended drawings at that time. Tim Landy also confirmed arrangements made by telephone for a site inspection on 26 November 2010.[172]
7. The Respondent cashed the cheque provided to him but failed to attend the scheduled site meeting.
8. On 29 November 2010, the Respondent wrote to Tim Landy, returning all documents, claiming that they had been sent to him water damaged.[173] The site meeting was rescheduled to 9 December 2010.[174]
9. On 13 December 2010, Tim Landy received an email from Lesley Cruickshank of AABP, referring to a meeting between the Respondent, Dowling and Phyland the previous week and advising that a Building Order would be issued. Curiously, the email also queried the involvement of Phyland and Dowling, noting that neither had been recorded on the building permit.[175]
10. By reply the same day, Tim Landy requested details of what documentation was required to progress matters.[176] No response was ever given to this request.
11. The next correspondence received from the Respondent was dated 7 February 2011 when he issued a Building Order to demolish the frame and issued his tax invoice for his fees in connection with issuing such order.[177]
12. By letter dated 3 March 2011, the Applicant applied to the Building Appeals Board challenging the Building Order.[178]
13. On 7 March 2011, the Council approved an amended Planning Permit and plans which refers to the Applicant's letter dated 27 January 2011.[179] By this time the Applicant said that her solicitors told her what she had to do.[180]
14. By 11 March 2011, the Applicant had engaged Les Kroenert & Associates Structural Engineers.[181]
15. On 22 March 2011, the Respondent received:
    • (a) The amended planning permit, with plans which differed from those previously provided on 24 November 2010; and
    • (b) A Certificate of Compliance for the new structural design and a copy of the engineer's report and recommendations on the damage caused by the vandalism.[182] These documents had been sought on 4 February 2010.

1. The Building Appeals Board conducted a hearing on 21 April 2011 at which time the Respondent, through his barrister, indicated that he would consent to being terminated as the relevant building surveyor. The matter was adjourned to enable the Applicant to make application to the BC for consent to the Respondent's termination as relevant building surveyor.
2. Subsequently, the Respondent refused consent to be terminated, unless his outstanding tax invoices were paid and he was given a release from 'liability from future suit.' The Respondent further stated in his letter that the Applicant... 'Should not assume that [he] will not object to being removed as the registered building surveyor.'[183]
3. By letter dated 15 June 2011,[184] to the Applicant's solicitors, the BC confirmed that the Respondent was terminated as building surveyor and certain directions had been given to him.[185]
4. Mr Alan Lorenzini is now the relevant building surveyor.
5. The Respondent continued to delay the Applicant's project by not complying with a direction of the BC to provide Mr Lorenzini with a copy of his file and relevant documents. The Applicant was required to seek the intervention of the BC to compel the Respondent to hand over the documents.[186]
6. By letter date 17 May 2012,[187] from the BC to Tim Landy, the BC confirmed that the Applicant's complaint that the Respondent had failed to comply with the direction of the BC, was substantiated and the Respondent cautioned.

1. In my view, the Applicant was an impressive witness. In particular:

(a) She gave her evidence in a clear and unreserved manner;

(b) She had a comprehensive recollection of conversations and correspondence;

(c) Her evidence was consistent and her explanations plausible; and

(d) Her evidence was not contradicted or materially undermined under cross-examination.

1. I note that in some parts of witness statements filed on behalf of the Respondents,[188] the Applicant is variously described as being 'unreasonable'; 'emotionally involved'; attending the site each day 'overseeing' the works in a demanding manner; unlawfully amending the architectural and engineering drawings; and through her unreasonable conduct, falling out with most if not all of the building practitioners involved with the project. In my view, there was no evidence to substantiate any of these descriptions.
2. Significantly, it was never put to the Applicant during cross-examination that:
   • (a) she was overseeing the works on a daily basis, or on any other basis;
   • (b) she was demanding; or
   • (c) her unreasonable conduct caused her to fall out with most if not all of the building practitioners involved.
3. I am satisfied that the Applicant:
   • (a) was conversant with architectural drafting;
   • (b) did not intentionally seek to depart from the approved building permit documents, other than to the extent instructed by one of the registered building practitioners, whom she had engaged from time to time; and
   • (c) did not intentionally or knowingly seek to infringe the copyright of Hodgson.
4. Furthermore, I am satisfied that the Applicant, in good faith, followed the advice of:
   • (a) Terry and George B, who persuaded her to register as an Owner Builder in the first place;
   • (b) The Respondent, who issued the Owner Builder permit;
   • (c) Laukart, a registered builder, who was responsible for the construction of the slab and first frame, including substantially defective and non-conforming building work;
   • (d) Phyland, a registered engineer, upon whose advice and instruction the Applicant amended the approved drawings; and
   • (e) Terry B, who rebuilt the frame, and upon whose advice and instruction the Applicant made further amendments to the approved drawings.

1. In contrast to the Applicant, in my view, the Respondent gave his evidence in a guarded and often defensive manner. While it is understandable that he would not recollect many details, his recollection generally was poor and sporadic.
2. Significantly, at the conclusion of his evidence, when given the opportunity to do so, the Respondent elected not to address or clarify a number of concerns raised by the Tribunal. In summary, the concerns raised were as follows:

1. In view of the Respondent's expressed view that the Applicant remained an Owner Builder throughout his dealings with her, why did he not always deal directly with her? In particular, site inspections were arranged by the builders actually performing the work; and not all correspondence was copied to the Applicant.
2. Did the Respondent at any stage see the Applicant on site supervising the works, as one would expect a builder to do?
3. Did the Respondent assume that the Applicant delegated or appointed another party to perform her duties under the Permit?
4. How did the Respondent satisfy himself that the obligations of the Owner Builder vis a vis the Permit were being performed? In particular did the Respondent at any time seek to ascertain from the Applicant what role she performed as an Owner Builder?
5. Is the Respondent aware that some unscrupulous builders persuade unsuspecting or inexperienced building owners to apply to be an Owner Builder? What role, if any does he see a building surveyor play in identifying or preventing such abuse?

1. Prior to this Hearing, was it the Respondent's view that the defects he identified at inspection could have been rectified?
2. What did 'Approved' mean, when he issued an Approval subject to the Engineer's sign off?
3. How did he expect the Engineer to sign off on those defects which comprised incomplete works or clearly defective workmanship as distinct from new works or works not conforming with the specifications?[189]
4. The manner in which the First Frame inspection was handled raises a scenario of:
   • (a) impermissible delegation of functions where the Respondent apparently did not propose another site inspection; and
   • (b) inadequate identification of defects to the Applicant, where the Applicant was then required to seek not only a report from BGE but also an additional independent expert report which revealed a more extensive list of defects.

1. The absence of any correspondence between the Respondent and CHI:
   • (a) was not raised during the Discovery process;
   • (b) was first raised by the Applicant's solicitor;
   • (c) was first met with an initial response that there was no such correspondence;
   • (d) was next met with a response that there had been a computer failure; and
   • (e) there was no evidence as to such computer failure or what if any other documents were lost as a result.
2. The allegation that the computer hard-drive was 'corrupted' in 2009 does not explain why the CHI facsimiles and attachments were not kept on the file.[190]

1. The Respondent did not explain why he delayed in issuing the Stop Work Order by two weeks, during which time the building work could have proceeded.
2. It is also not apparent how the Stop Work Order and the Building Notice comply in their terms, as neither disclose the defects to be rectified.

1. It is appropriate to examine the provisions dealing with the issue of building permits generally and Owner Builder permits in particular.
2. Section 16 of the BA provides:

(1) A person must not carry out building work unless a building permit in respect of the work has been issued and is in force under this Act and the work is carried out in accordance with this Act, the building regulations and the permit.

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

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

(2) Subsection (1) does not apply to building work exempted by or under this Act or the regulations.

1. The authority to issue a building permit is conferred upon a municipal or private building surveyor appointed under Part 6 of the BA.[191]
2. The term 'Owner Builder' is not defined in either of the BA or the DBCA. However, in 2004, new sections were inserted in the BA,[192] as part of legislative reforms to protect Owner Builders.

1. It is appropriate to set out certain extracts from the relevant Second Reading Speech which stated in part as follows:[193]

The main purpose of the Building Legislation (Amendment ) Bill is to amend the Building Act 1993 to prevent speculative builders avoiding insurance and registration requirements by falsely claiming to be Owner Builders. The bill also enables a home owner to make more fully informed decisions about carrying out domestic building work as an Owner Builder.

The bill provides that a prospective Owner Builder must obtain a certificate of consent from the Building Practitioners Board before applying for a building permit for domestic building works where the cost of the work is more than $12000.

When applying for a certificate of consent, the bill requires an Owner Builder to confirm that they have read an information statement published by the Building Commission on their rights and responsibilities as an Owner Builder.

The bill ensures that genuine Owner Builders and registered builders can continue to operate. Its provisions will help to protect consumers from exposure to unregistered builders who seek to bypass the existing domestic builder registration system by operating as, or through, Owner Builders...

Home owners are often unaware of the extent of the risks and liabilities they are exposed to when choosing to take out, or being 'duped' into taking out, a building permit as an Owner Builder...

1. The prescribed Information Statement is designed to alert a prospective Owner Builder to their rights and responsibilities. In particular, the Statement highlights those circumstances in which an Owner Builder should engage registered builders covered by requisite insurance; as well as the ongoing obligations placed upon Owner Builders regarding the building work and advising the building surveyor. Relevant extracts from the Information Statement current at the relevant time, are as follows:[194]

An Owner Builder is a person who carries out building work on his or her own land. This generally does not include registered builders...

Owner builders take on many of the responsibilities of a builder. Depending on the circumstances, these may include:

Supervising building work and/or carrying out the work themselves

Ensuring the work meets relevant building regulations, standards and other laws

Arranging for building inspections as required by law at particular stages of the building work

Obtaining an occupancy permit or certificate of final inspection from the relevant building surveyor on completion of work.

If you engage a builder for the entire project then you are not an owner-builder. The builder needs to be registered if the work costs over $5,000 and provide domestic warranty insurance if the work is valued over $12,000.

If you engage a number of builders to construct various parts of the work and also do some small components yourself, you can be an Owner Builder.

• Undertake parts of the building work yourself, except in areas that require licensed tradespeople, such as electricians and plumbers (unless you are an electrician or plumber).
• Contract out some of the work to Registered Building Practitioners or tradespeople.

If you enter into a contract with a person to complete any building work and the contract price is more than $5,000 the person must be a Registered Building Practitioner and must enter into a written domestic building contract [which] must include certain minimum terms...[and where]...the contract price is more than $12,000, that person must ensure that the work is covered by domestic building insurance.

If you engage this person before the building permit is issued, you must notify the relevant building surveyor when you make the application for the building permit. If you engage this person after a building permit has been issued, you must give the relevant building surveyor written notice of the engagement within 14 days, including the building practitioner's registration details.

If you do not comply with this requirement, you may be prosecuted by the Building Commission.

Tradespeople carrying out the following domestic building work as a single trade only do not need to offer you a major domestic building contract for work over $5,000: [following is a list of relevant works]

1. In an effort to protect consumers from being 'duped' into becoming Owner Builders, the relevant building surveyor was prohibited from issuing an Owner Builder permit, if the work was going to be carried out under a major domestic building contract.

24A Further limitations on issue of building permit

(2) The relevant building surveyor may consider an application for a building permit for domestic building work that is to be carried out under a major domestic building contract but must not issue the permit unless he or she is satisfied that -

(a) the work is to be carried out by a builder who is registered under Part 11 in the appropriate class of domestic builder and is covered by the required insurance; and

(b) each architect to be engaged in the building work is an insured architect.

(3) The relevant building surveyor may consider an application for a building permit for domestic building work where the cost of the work (estimated in accordance with section 201) is more than $12,000 and the work is not to be carried out under a major domestic building contract but must not issue the permit unless he or she is satisfied that -

(i) a builder who is registered under Part 11; or

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

(b) the Applicant has been issued with a certificate of consent for the work; or

(c) the Applicant is the Director of Housing within the meaning of the Housing Act 1983.

1. If an owner proposes to engage a builder for the entire building project, then they cannot be an Owner Builder and a permit must be sought under s 24A(2). In that instance, the building surveyor must be satisfied that the work will be carried out by a builder, registered in the appropriate category, who is also covered by the required insurance.
2. If an owner proposes to undertake the building project by either performing part or all of the building work personally; or the owner proposes to engage a number of builders and/or subcontractors to perform part or all of the work, then they may apply for a Certificate of Consent and apply for a building permit under s 24A(3), as an Owner Builder. However, in undertaking that role, the owner will assume many responsibilities under the building legislation as a builder.[195]
3. Owner builders are permitted to carry out domestic building work as 'builder' only if they have a Certificate of Consent. Specifically s 25B of the BA provides:

An owner of land or a building must not carry out domestic building work as builder on that land or in respect of that building if the cost of the work (estimated in accordance with section 201) is more than $12,000 unless the owner -

(a) has been issued with a certificate of consent for the work; or

(b) is a builder who is registered under Part 11; or

(c) is an architect who is registered under the Architects Act 1991; or

(e) is carrying out the work in accordance with an emergency order, a building notice or a building order made under Part 8.

1. Pursuant to section 25C of the BA, owners who wish to become Owner Builders must apply to the BPB. Specifically, s 25C provides:

25C Application for owner-builder certificate of consent

(1) A natural person may apply to the Building Practitioners Board for the issue of a certificate of consent to carry out domestic building work on land_._

(i) a statutory declaration by the Applicant stating that the Applicant has read the information statement published under section 25I; and

1. The prescribed particulars are set out in regulation 201, and the Certificate of Consent, if granted, must state the information set out in regulation 203. Critically, the application and the subsequent consent form, if granted, must describe the proposed domestic building work.
2. In this instance, the proposed domestic building work, as stated on the Certificate[196] is described as 'construction of a new home and garage'.[197]
3. It is a requirement that a prospective Owner Builder sign a statutory declaration that he or she has read the information statement [contained in the 'Application Kit').
4. The BPB must issue a Certificate of Consent if the applicant complies with s 25C, s 25D and s 25E. However, generally, an Owner Builder is precluded from obtaining a Certificate of Consent for the purpose of applying for a building permit, more than once in a three year period.[198]
5. There are no express provisions within s 24A or Division 3A placing any obligation upon a building surveyor to ensure that an Owner Builder is aware of his or her risks and responsibilities, which is otherwise achieved by means of the Application Kit.[199]
6. The evidence has clearly established that the Applicant satisfied the requirements for a Certificate of Consent and subject to satisfactory provision of documentation accompanying an application for building permit, was entitled to the issue of a building permit as an Owner Builder.

Was the Respondent in breach of his duty in issuing the building permit?

1. In assessing the reliability and veracity of evidence on this fundamental issue, I am faced with an Applicant who presented a clear and consistent account of:
   • (a) her initial dealings with Terry and George B;
   • (b) her involvement in the whole process for applying for a Certificate of Consent; and
   • (c) her initial dealings with the Respondent in completing the application for a building permit.
2. On the other hand, I am faced with evidence of George B who, as indicated above, did not have a precise recollection of his dealings with the Applicant at the relevant time and otherwise was not an impressive witness. In the case of the Respondent, he either professed no recollection or did not refute the Applicant's evidence.
3. Accordingly, I accept the evidence of the Applicant to the following effect:
   • (a) At the time when she first consulted Terry B, she had no prior knowledge or experience of:

(ii) building a domestic residence or dealing with builders;

(iii) the significance of the distinction between a registered building practitioner and a subcontractor;

(iv) the role and responsibilities of an Owner Builder;

(v) the distinction between obtaining a builder permit as an Owner Builder and a registered builder for the building work being recorded on such permit; or

(vi) the significance of a major domestic building contract and requisite insurance for the benefit of the building owner.

(b) She was 'duped' by Terry B into applying for a Certificate of Consent and applying for a building permit as Owner Builder;

(c) The application for a Certificate of Consent was completed in her presence by George B and signed by the Applicant;

(d) She either did not receive or did not in fact read the Information Statement;

(e) Neither Terry nor George B gave her any advice or read any document to her in relation to her application for a Certificate of Consent;

(f) She relied upon and trusted the advice of Terry and/or George B to the effect that an application for a Certificate of Consent was appropriate for her and would facilitate the obtaining of a building permit;

(g) In their initial telephone contact, the Applicant advised the Respondent that she had or was proposing to use a builder;

(h) In their initial meeting, the Applicant advised the Respondent that:

(i) she had never previously been involved in a building project and did not know how to complete an application for a building permit; and

(ii) the slab and frame would be constructed by a registered builder.

1. The Respondent conceded and I accept that:
   • (a) He largely completed the application for building permit for the Applicant;
   • (b) He relied solely upon the Owner Builder Certificate of Consent for the purpose of issuing a permit to the Applicant;
   • (c) He did not turn his mind to s 24A;
   • (d) He did not turn his mind to the relevant BC Practice Note (2006-56 Owner Builder Certificates of Consent);[200] or the BC Owner Builder Information Kit;[201]
   • (e) He made no enquiry and gave no advice about:

(ii) the Applicant's competencies as an Owner Builder;

(iii) registered builders or requisite insurance;

(iv) what building work was being constructed under a major domestic building contract.

1. In my view, the above statutory provisions have the following intention and effect:
   • (a) The BPB [and in turn the building surveyor] is entitled to assume that the Applicant has read the Application Kit and understood the obligations, risks and responsibilities of an Owner Builder;[202] which is clearly the intention and effect of the requisite statutory declaration;
   • (b) If a Certificate of Consent is issued by the BPB, in apparent compliance with all regulatory requirements, a building surveyor, and the Respondent in this case, is entitled to rely upon such Certificate as evidencing an informed and eligible prospective Owner Builder; and
   • (c) Prior to issuing a permit under s 124A(3), there is no obligation upon such building surveyor to make further enquiry of the building owner or to give any advice to the building owner, beyond advice necessary to complete the application for building permit and provide requisite documentation.
2. It was not any part of the Respondent's duties and it was not otherwise incumbent upon him to enquire as to:
   • (a) how the Applicant came to be applying for a permit as an Owner Builder; or
   • (b) what builder/s she proposed to engage and for what part of the building project; or
   • (c) whether she understood the circumstances in which to engage a registered builder covered by required insurance under a major domestic building contract.
3. Furthermore, the Respondent was not obliged to give general regulatory advice.
4. The fee proposal[203] of AABP provided that its services extended to advice in respect of:
   • (a) 'preliminary documentation';
   • (b) 'public protection and adjoining properties'; and
   • (c) 'certification required for a certificate of final inspection or occupancy permit'.
5. These matters are all properly within the ambit of the duties of a building surveyor.
6. There is nothing in the BA or BR which gives the building surveyor, either expressly or by necessary implication, any responsibility:
   • (a) in the process whereby the BPB issues a Certificate of Consent; or
   • (b) prior to issuing the building permit, to ensure that the Applicant was fully appraised of:

(i) the relevant regulatory requirements and the risks pertaining to being an Owner Builder; or

(ii) the requirements for builder registration, insurance and engaging builders, where appropriate under a major domestic building contract.

1. Whether an application for a building permit for domestic building work falls under s 24A(2) or (3), is not determined by the building surveyor, in the first instance. It is determined by an applicant having regard to the process by which the applicant proposes to undertake the relevant building project. I will return to these subsections shortly.
2. The matter does not end with the issue of an Owner Builder permit. In my view, for reasons more fully developed below, while a building surveyor is entitled to accept the Certificate of Consent at face value in the first instance, circumstances may arise subsequently, as they did in this case, where the proper exercise of his powers and duties warrant further enquiry.
3. The Applicant had not identified to the Respondent that she proposed to engage a registered builder to both undertake and supervise all building work on site, up to completion of the frame stage. While a building owner may always perform many peripheral functions in the course of the building project, even where a permit is issued under s 24A(2), the essential pre requisite in s 24A(3) for ... 'and work is not to be carried out under a major domestic building contract' is that:
   • (a) The building work encompassed by the plans and specifications accompanying the application for permit, will be managed by the building owner as the nominated builder under the permit;
   • (b) The Owner Builder assumes the role and responsibilities as builder for the purpose of the Act, and may therefore be subject to directions and orders from the building surveyor; and
   • (c) The building work may be undertaken in whole or in part by the owner; and may otherwise be the subject of multiple building contracts.
4. In this case, the Applicant was clearly not engaging a registered builder to undertake all domestic building work encompassed by the building permit, that is, the construction of a new home and garage. The Applicant had clearly expressed her intention to engage a builder to construct the slab and frame only and that was the extent of the work for which she contracted CHI.
5. Section 24(3) does not mean that the Owner Builder will not enter into a major domestic building contract for part of the building work. Indeed, unless the Owner Builder is performing a major part of the construction personally, such contract/s would be inevitable.
6. Respondent's Counsel submitted that the issuing of the Certificate of Consent triggers s 24A(3), as opposed to s 24A(2), and thus determines to what documents the Respondent must have regard, before issuing a building permit. In my view, this interpretation must be correct.
7. The Certificate of Consent was for a new home and garage. The term 'domestic building work' used in s 24A(2) and (3), must be read as referring to the whole subject matter of the proposed building permit.[204] As the contract with CHI extended only to the slab and frame, it was not a major domestic building contract caught by (3).
8. The permit did not need to extend beyond the frame stage, if that was as far as the Applicant proposed to engage the [initial] builder. The Respondent had not been informed otherwise and was entitled, in the first instance, to treat the application as a normal Owner Builder application.
9. If the Applicant had chosen to nominate a registered builder to be responsible for say the slab and frame stage only, then a permit could have been applied for under s 24A(2). The Applicant could then have applied for a separate permit, as Owner Builder, to encompass the balance of the domestic building work to complete the new home and garage. To the extent to which the owner elects to individually engage specialist trades people,[205] such specialist work would be exempt from the requirement for a major domestic building contract.
10. I accept Respondent Counsel's submission to the effect that the Owner Builder regime is set up to permit the Owner Builder to make his or her own choices as to how to undertake the domestic building work. The statutory regime in respect of Owner Builders and the Certificate of Consent, does not place a greater obligation on a surveyor when he or she is engaged by an Owner Builder.
11. In this case, the mere fact that the Applicant had told the Respondent that she had no prior building experience did not of itself affect the scope of the duties otherwise imposed upon the Respondent, nor was it sufficient to alert the Respondent to the circumstance in which the Applicant came to have made an application for a Certificate of Consent.
12. In accepting that the Applicant was effectively deceived by Terry B to apply for an Owner Builder permit, it does not follow that the Respondent was on notice of such deception or that there was anything so compelling in the nature of the initial application for a building permit, as to alert him that it was misconceived and untenable. I note that the building permit was issued on 1 March 2009; the contract with CHI was signed on 4 March 2009; while the Applicant had emailed the Respondent on 27 February, without mentioning CHI, stating in part:

I can start work on 1st March 2009, please give me the building permit asap...[206]

1. Furthermore, I accept that it is not within the Respondent's reasonable contemplation that the Applicant would be 'duped' by unscrupulous builders, who also sought to avoid their obligations under the DBCA.[207]
2. While none of the cases to which I was referred were directly comparable to the circumstances of the current case, they are instructive as to the confined ambit of the duties of a building surveyor, namely to exercise due care and skill in the performance of those statutory functions and powers bestowed by the BA and BR.
3. In Lewis v Threadwell & Ors[208] ('Threadwell') Senior Member Davis, referring to Senior Member Young in Taitapanui v HIA Insurance Services,[209] stated:

[I]t is clear that the duty of a building surveyor and inspector is to act in conformity with the requirements of the Act and Regulations and this is his sole function. Thus, in my view, it would be wrong to burden a surveyor or inspector with issues in relation to design, supervision, or workmanship except insofar as those issues relate to the Act and Regulations. The issues of design, supervision and workmanship are for an architect or supervising builder, not for a surveyor or inspector who is exercising a statutory function.

1. In Lawley v Terrace Designs Pty Ltd & Ors, Senior Member R.J. Young said:[210]

1. The decision of the Court of Appeal in Shire of Moorabool v Taitapanui [2006] VSCA 30 (24 February 2006) held that a building surveyor does owe a duty of care to subsequent purchasers. The leading judgement of Ormiston and Ashley JJA considered that the statutory scheme to administer residential building in Victoria was of substantial importance as a feature of the relationship between the building surveyor and subsequent purchasers in assessing whether any duty of care existed.
2. I do not consider that the building surveyor has a general duty to subsequent purchasers to avoid economic loss caused by inadequate footings. I consider the purport of the building surveyor's duty as outlined in the decision of the Court of Appeal was that the building surveyor had a duty to carry out the duties set out for him in the BA and BR and that is the compass of his duties, ie. the BA and BR set the boundaries of the duty that a building surveyor has to subsequent owners.
3. As I said in Taitapanui the position the private building surveyor has is a statutory position created by the building regime enacted in the BA and BR in 1993. He has an important role in ensuring the purpose of objects of the BA and BR are achieved. His is essentially a checking and inspection role; but to reiterate what I said above, it is not a general or supervisory role but to carry out those acts specified in the BA and BR in the manner required by the legislation.
4. In Capital Brake Service Pty Ltd v Meagher,[211] emphasis was given to the importance of not, in effect, expanding the content of the duty, with the benefit of hindsight, but rather focusing upon what was reasonably within the Respondent's knowledge:

There is a great danger, particularly in professional negligence matters, of applying an unrealistic hindsight judgment. Any fool can be wise after the event. That is not the test. The Court must be careful to judge the conduct of a defendant, where negligent failure to warn is asserted, by reference to what the defendant reasonably knew at the relevant time. Not after the loss has been suffered.

1. In this case, the Respondent had no knowledge, at any stage, of the allegation now made by the Applicant that she had been persuaded by Terry and George B to become an Owner Builder. He also had no prior knowledge of the circumstances in which she engaged CHI or subsequently engaged Terry B.
2. The Applicant submitted to the effect that the Court of Appeal decision in Moorabool Shire Council & Ano v Taitapanui & Ors,[212] is directly relevant to the circumstances of this case. I disagree. While the Taitapanui case certainly clarified the nature and scope of the duties of a building surveyor, the case otherwise raised quite different legal issues to the current case.
3. The Taitapanui case commenced in the Tribunal and raised the following issue:

[the case] raises an issue concerning liability in negligence for pure economic loss caused by the collapse of part of the foundations of a house (and for other consequential damage). The property had been purchased by ... ("the Taitapanuis"). They claimed that the loss resulted from breaches of duty owed to them as subsequent purchasers in respect of the careless and incompetent performance by the ... "the surveyor"), of his functions as a building surveyor engaged by the builder of the house on behalf of the property owners some three years earlier...[213]

1. Defects in the building were not apparent prior to the Taitapanuis purchasing their property and only became apparent, progressively, after they took occupation. Subsequently, it was ascertained that the wrong footing system had been installed which, as a consequence, could not support the external walls.

It was accepted at the tribunal that the plans and other documents submitted to [the building surveyor] with the application for the building permit were inadequate in a considerable number of respects, in particular because the footings as specified were of stump and pad design. The tribunal held that [the building surveyor] had been in substantial default by issuing the permit. That default arose in the first place because, contrary to the regulations, no specifications had been provided describing the materials and methods to be used. Moreover, the plans did not identify the particular external wall material, although it did show a wall thickness of 250 mm which ought to have alerted [the building surveyor] to the likelihood that masonry product would be used. So the tribunal held that [the building surveyor] had failed in his basic functions of ensuring that the application contained sufficient information to ensure compliance with the regulations. It described his conduct as amounting to "gross carelessness and incompetence. The learned judge in the Trial Division said the tribunal was clearly justified in saying that the plans were "completely inadequate and [appeared] in effect to have been done by a thumbnail dipped in tar". The tribunal also noted that some 20 other construction defects had been identified, most of which [the building surveyor] should have picked up in the course of his inspection - in particular, subfloor defects in the bearers and joists, defects in the roof framing, clear shortcomings in the flashings and a failure to provide the correct safety glass for certain window and door panels.[214] [footnotes omitted]

Quite apart from the surveyors role in inspecting buildings which are under construction ... the surveyor must not issue a permit unless he or she is satisfied, inter alia, that the building work will comply with the Act and the regulations - into the latter of which is incorporated the Building Code of Australia. No doubt it is with that responsibility in mind that the regulations prescribe, as we have said, the documents which must be provided with an application for a permit, and which empower the surveyor to require additional information. A permit, when granted under the hand of the surveyor, is a written certification which both authorises building work and declares that the building work as described in the application will comply with the Act and the regulations.

[98] In the present case, the permit should never have been issued. [the building surveyor], as the tribunal found, failed his basic statutory function "to the extent of gross carelessness and incompetence". He issued the permit when the material provided by the application was, as he must have known, much lacking. Because he issued the permit in those circumstances, the critical design flaw - which must have required refusal of the permit - went unrecognized.[215] [footnotes omitted]

1. Significantly, in the current case, there was no issue as to the adequacy of the documentation examined and approved by the Respondent at the time of issuing the initial building permit and it has not been suggested otherwise. The problems subsequently encountered in the building project arose by reason of successive builders' failure to comply with the permit plans and seriously defective building work.
2. The Tribunal found that a private building surveyor does owe a duty of care to current owners of a property and made orders in favour of the Taitapanuis against the building surveyor, his Council employer and the builder's insurer. The appeals of the building surveyor and the Council were dismissed by Smith J and by the Court of Appeal.
3. His Honour Maxwell P characterised the Taitapanui case as follows:

... by both the known, inevitable, dependence of each subsequent owner upon the proper performance of the surveyors function, and the assumption of responsibility by the surveyor, in accordance with his statutory duties, to ensure that the house as constructed complied with the building regulations.

1. The current case is not concerned with the existence of a duty to avoid economic loss to subsequent owners or indeed the existence of such a duty of care to the owner who contracted with a building surveyor. For instance it was quite clear in the Taitapanui case that:

...the surveyor - like the builder and the engineer - has a responsibility to the first owner to take reasonable care to ensure that the house as constructed complies with all applicable building regulations.[216]

1. However, the Taitapanui case did identify other principles which bear exploring.
2. First, the issue of 'vulnerability' was examined, with reference to earlier cases:

...the vulnerability of the plaintiff has emerged as an important requirement in cases where a duty of care to avoid economic loss has been held to have been owed. 'Vulnerability', in this context, is not to be understood as meaning only that the plaintiff was likely to suffer damage if reasonable care was not taken. Rather, 'vulnerability' is to be understood as a reference to the plaintiff's inability to protect itself from the consequences of a defendant's want of reasonable care, either entirely or at least in a way which would cast the consequences of loss on the defendant.[217]

1. The examples which are then cited focus upon the extent to which a plaintiff had no way of ascertaining or appreciating the risk to which they may be exposed, as compared to the degree of knowledge and control which could be exercised by the respondent party. In my view, this is a significant issue in this case, which must be examined, both at the time when the initial building permit was issued and thereafter during the course of the building project. I will return to the question of vulnerability shortly.
2. Secondly, the Taitapanui case identified a number of aspects of the duty of care owed by a building surveyor, such as:
   • (a) It was obviously foreseeable by the surveyor that the negligent inspection and certification of the house was likely to cause economic loss, of the kind sustained by the current owners, at the time when the defects first become apparent;[218]
   • (b) In ordinary circumstances, the surveyor undertakes the responsibility of inspecting the house in the knowledge that the presence or absence of defects will be relevant to the soundness and safety of the house 'for a period during which it is likely that there will be one or more subsequent owners';[219]
   • (c) The surveyor:

... [has] complete control over the discharge of the statutory functions of granting the necessary permits. Like the first owner, the subsequent owner is completely powerless to influence that process;[220] and

(d) The owners (first and subsequent) of the house will rely - or will necessarily be dependent - on the building inspections having been done with reasonable care. Each owner is vulnerable to any failure on the part of the defendant to take such care.[221]

1. These aspects of a building surveyor's duty of care become relevant in the context of the alleged ongoing breaches addressed below.

1. The Respondent conceded to the effect that he was not ignorant of the potential for unscrupulous builders and vulnerable building owners.
2. It must also be acknowledged that the Applicant was a very intelligent, organised and highly competent building owner who instructed a range of building practitioners: builders; draftsmen; engineers; and planning consultants; during the course of the building project. She dealt with the local Council in relation to the planning permit; and she organised for a notice of protection works to be served upon neighbours. She also amended plans, as instructed, using her drafting and computer skills. In short, she was a very 'hands on' building owner, in many essential respects.
3. In what respect, if any, can the Applicant be said to be vulnerable in the sense of having an inability to protect [herself] from the consequences of [the Respondent's] want of reasonable care?
4. In my view, the Applicant's vulnerability arises in the following context:
   • (a) her first language is not English;
   • (b) at the time when she first became involved in the building process, she had resided in Australia for about 8 or 9 years;
   • (c) she had no prior knowledge or experience of the building industry; building regulation; contractual documentation or other documentation in the regulatory process; dealing with building practitioners or the local municipality; or managing or supervising the construction of a home;
   • (d) the Respondent, as the appointed registered building surveyor, was the only building practitioner with whom the Applicant dealt, who had the authority to approve the various mandatory inspections and ultimately issue an occupancy permit; and
   • (e) the Respondent was best placed to identify whether the nominated builder under the building permit was in fact performing the role contemplated by the BA and BR.
5. There is no question that the Respondent was not responsible for bearing a greater duty of care by reason only of any of the above characteristics. However, in issuing an Owner Builder permit and dealing with the Applicant, as the builder for the building project, it was incumbent upon the Respondent to ensure that the builder complied with regulatory requirements. While this of course did not extend to the Respondent in any way assuming responsibility for personally supervising the building work or indeed attending the site to ensure that the nominated builder or site supervisor, did so. At the same time the Respondent, could not merely turn a blind eye once comprehensively alerted to the reality of the Applicant's circumstances and the role which in fact she did or did not perform.
6. In my view, the evidence clearly reveals that by the time of the first slab inspection, the Respondent was on notice that the Applicant was not in reality an Owner Builder and was neither capable of performing that role nor actually purporting to perform that role. My view is reinforced by the fact that the Respondent:

• (a) dealt directly with builders on site when organising, attending and advising the result of, inspections;
  • (b) more often than not, corresponded, by email or telephone, directly with various building practitioners, without reference to the Applicant;
  • (c) more often than not, failed to deal with the Applicant in a manner which recognised her as the nominated builder; and

1. failed to enforce proper disclosure on site as to the builder and site supervisor.[222]
2. Having been deceived or misled by Terry B and Laukert as to their regulatory responsibilities for registration, contractual compliance and insurance, the Applicant, in effect, relied upon a false sense of security in the Respondent's implicit endorsement of the status quo. The duty of the Respondent in this context, did not arise by reason of any duty to advise the Applicant of such regulatory requirements at the outset. Rather, the Respondent had a duty to comprehend, recognise and respond accordingly to a situation which did not accord with the building permit which had been issued. It was his duty to manage the building permit in a manner which ensured regulatory compliance. He did not consistently deal with the Applicant as builder, but variously dealt with other building practitioners, thus seriously blurring the lines of responsibility and communication. The supervision and control of the building process was clearly beyond the Applicant; she was not in fact performing that role and that should have been patently obvious to the Respondent.

1. The Respondent attended the building site on 12 and 13 March 2009 for the slab inspection, following a request by Urbano. The Applicant was not on site at the time and did not speak to the Respondent.
2. At that inspection, the Respondent said he was 'shocked' to find an illegal water tank had been installed under an area where the structural slab was to be poured; and that this was a 'significant concern' due to the structural implications. The Respondent made no notes or report of his inspection but issued an oral Stop Work Order only, pending confirmation by the engineers BGE.
3. In the circumstances, given that there had been building works performed contrary to the building permit, which potentially raised a concern as to the structural integrity of the foundation, then consistent with his duty to enforce the BA and BR, it was appropriate for the Respondent to have proceeded as follows:
   • (a) to make inquiries to ascertain who was responsible for the building work;
   • (b) to ascertain who was the person in charge of supervising and carrying out of the non-compliant building work;
   • (c) to ask Urbano whether he was the builder or who had engaged him;
   • (d) to require a notice to be displayed in accordance with Regulation 317; and
   • (e) to issue a direction under s 37 of the BA 'to the person in charge of carrying out of the building work' to ensure compliance.
4. If such proper inquiries had been made at this stage then the Respondent would have been on notice that:
   • (a) CHI was engaged as a registered builder under a major domestic building contract;
   • (b) CHI was responsible for engaging the subcontractors on site;
   • (c) CHI was responsible for the non-complying building works; and
   • (d) Laukart was a registered builder and the responsible site supervisor for CHI.
5. Furthermore, at this early stage, the Respondent should have sought the Applicant's compliance with s 25A as to written notification of the registration and insurance of any appointed building practitioners, which would have secured the interests of the Applicant, at least to that extent.
6. Furthermore, proper inquiry at this early stage would have established that the Applicant was not in fact performing the role of a builder, as envisaged by the legislation. In such a case, the Respondent should have sought an amendment to the building permit to record CHI as the registered builder. In that case, the responsibility to comply with the building permit or seek any requisite amendments, is placed directly upon the responsible registered builder, who was in fact supervising the building works.
7. What damage, if any, flowed as a consequence of any breach of duty by the Respondent at this stage? In my view, none for which the Respondent is liable.
8. The inclusion of a water tank, not otherwise provided for in the plans, was not a matter about which the Respondent had any knowledge prior to the first site inspection. The Applicant had relied upon her builder and no application to amend the permit was made, as required, prior to non-conforming building works. In the event, by the time the concrete was finally poured for the footings, the Respondent had sought and obtained the approval of the structural engineers and was awaiting the Applicant's application for an amended building permit. Consequently, the Applicant had her slab and water tank.
9. The Respondent then permitted the building project to proceed to the frame stage in accordance with the building permit, there having been approved amended structural drawings to include the water tank in respect of the 'as-built' structure.
10. In relation to the Applicant's alleged cash payment to Urbano of $600 [which was denied by Urban], I accept Respondent Counsel's submission that there is no basis for claiming that the Respondents were responsible for his demand, and payment, if indeed one was made.
11. Following completion of the slab, CHI proceeded with the construction of the frame, without a complying major domestic building contract and without requisite insurance. In my view, as indicated above, the Respondent was in breach of his duty of care to the Applicant:
    • (a) by continuing to purport to treat her as the builder, on the record; and
    • (b) in failing to enforce the requisite endorsement on the building permit, disclosing particulars of the registered builder and insurance.

1. The [first] frame was constructed during April 2009, when the Applicant was in Singapore.
2. By this time, the evidence shows that the Respondent was in the habit of dealing directly with various building practitioners involved in the building project, and did not in fact deal with the Applicant as if she were the builder. In particular:
   • (a) inspections were arranged directly with the builder on site;
   • (b) discussions were conducted and correspondence entered into directly with the engineers; and
   • (c) the Applicant did not attend site inspections, and was not advised about the result of inspections before other building practitioners.
3. In addition, the Respondent was well aware that the Applicant did not perform any building work; had never been seen on site by him; and in evidence conceded that she had no building experience and should not have been an Owner Builder. In these circumstances, particularly in view of the experience with the slab inspection, it was again incumbent upon the Respondent to have made enquiries as to the role being performed by building practitioners on site, to ensure compliance with the BA and BR.
4. The Respondent conducted the mandatory Frame Stage inspection on about 29 or 30 April 2009 in the presence of Laukart. The evidence reveals substantial defects and non-compliance in the building works, to the extent that it was subsequently recommended by engineers[223] that the frame could not be rectified and should be demolished.
5. The Respondent:

• (a) failed to detect many of the substantial defects and items of non-compliance in the works, which were readily identifiable;[224]
  • (b) failed to explore the cause of the frame 'wobble' or identify the non-complying building work in respect of the cantilever beam;
  • (c) failed to make notes at the inspection or properly record those defects which he did identify;
  • (d) failed to prepare a comprehensive report itemising the defects and other items of non-compliance with the building permit; [225]

1. failed to directly advise the Applicant, in the first instance, as to the outcome of the frame inspection;[226]

• (f) failed to inquire whether Laukart was registered; and
  • (g) failed to ascertain who was in charge of supervising and carrying out the building works.

6. If the building permit had properly recorded the registered builder responsible for the construction and supervision of the slab, then in light of the findings made by the Respondent at the first frame inspection, it was incumbent upon him, consistent with his statutory obligations, to enforce compliance with the building permit, BA and BR, pending a further inspection, to have issued an Order directed at CHI, to rectify the defects and non-compliance, in accordance with the permit; and/or otherwise seek appropriate amendments to the permit.
7. At the site inspection, the Respondent purported to issue an oral approval of the frame but subject to the engineer's sign off. Such form of 'approval' was subsequently confirmed in writing by the Respondent and formed the basis upon which CHI demanded payment from the Applicant.[227]
8. In my view, the form of 'approval' was inappropriate, confusing, and problematic for the Applicant.
9. An engineer's 'sign off' could be properly and appropriately sought where there are non-complying building works, in terms of the permit documentation, which may still be structurally sound and comply with the BA, BR and BCA [although an amendment to the planning and permits may still be required]. However, in this case, as confirmed by subsequent expert reports, the frame exhibited significant defects, which at best and at the very least, required rectification. Accordingly, the Respondent's form of qualified approval[228] effectively amounted to an impermissible delegation to another building practitioner to approve a mandatory inspection where clearly:
   • (a) rectification works were required to be done; and
   • (b) a further inspection would need to be performed by the building surveyor.
10. The Respondent's explanation of his conditional form of approval appears in his witness statement thus:[229]

...I told Laukart, as I subsequently told Ms Orders, that if the engineers were satisfied with the frame from a structural point of view, the frame would be unconditionally approved. However, as I explain below and as Ms Orders was very well aware, BGE would not confirm that the frame met the intent of their structural design.

1. Such a statement underlies the serious failure on the part of the Respondent to identify relevant defects and non-compliance at the site inspection. Under cross-examination, he sought to explain what he really required of BGE, namely that they should check the frame for structural integrity, then prepare revised drawings to show the as-built structure, then conduct an inspection and issue a Certificate of Compliance-Inspection under the BA and thereby assume legal liability for the frame. As pointed out by Applicant's Counsel, there are no contemporaneous documents to this effect. In any event, BGE refused to comply and the Applicant was forced to engage alternative engineers.
2. When the Respondent finally emailed the Applicant, on 5 May 2009, with a copy to CHI, he misinformed her in the following respects:
   • (a) By suggesting that a number of minor issues had been resolved while he was on site. However, under cross-examination, he conceded that while he gave directions about what was to be done, he did not know whether the rectification was done at all, or properly; and
   • (b) By stating that it was standard industry practice to seek comments from the structural engineer. However, he did not inform the Applicant that the frame was 'substantially non-compliant'.
3. The Respondent was referred to an email dated 1 May 2009 from James of CHI which contained photos and said:

As per your request, please find attached the photos of building works at the 6 Croydon Road, Surrey Hills property.[230]

1. The Respondent said he could not recall why he requested these photographs but did not deny that it could have been to approve the minor issues he had raised on site. No explanation was given as to why these photos were not retained on his file. To the extent that the Respondent was prepared to approve rectification works by photograph and without a further site inspection, is a questionable practice.
2. In my view, the proper course of action following the first frame inspection was clearly to have:
   • (a) issued a direction to CHI under s 37 of the BA;
   • (b) serve a Building Notice on the Applicant under s 106 of the BA; and
   • (c) issue a Building Order to stop work under s 112 of the BA.
3. Failure to adopt any of these measures constitutes a significant failure on the part of the Respondent to perform his functions and duties in a professional and competent manner. In effect, he abrogated his responsibilities and merely threw the problems back upon the Applicant, who was entirely ill-equipped to manage the situation and indeed misinformed by the Respondent as to the seriousness of the problems.[231] In my view, the Respondent's negligent advice to the Applicant and the negligent way in which he chose to behave following the frame inspection, created a chaotic situation for the Applicant, where she was faced with disgruntled engineers; further unnecessary inspections and expert reports at her expense; and unjustified claims for payment from the builder.
4. The next critical question is what quantifiable damage did this cause to the Applicant?
5. The Applicant's claim is made up as follows:
6. It is apparent that the Applicant made three payments to CHI totalling $52,851.70 prior to the Respondent's frame inspection:
   • (a) on 4 March 2009 the Applicant paid $4,400 as deposit;[232]
   • (b) on 20 March 2009 the Applicant paid $39,600;[233] and
   • (c) on 3 April 2009 the Applicant paid $8,851.70.[234]
7. These payments appear to have been made in advance of the Applicant's contractual obligation to do so under the contract with CHI, which provided for a deposit of $4,400; the sum of $39,600 upon completion of the slab; and the sum of $44,000 upon completion of the framing.[235] Accordingly, the advance payment of $8,851.70 must be referable to the framing.
8. Respondent's Counsel submitted that the Respondent is not responsible for the Applicant having paid all of these sums. In any event, it is submitted that these payments are referable to the construction of the slab and installation of the slab reinforcement, which the Applicant still has.
9. Following a claim by CHI against the Applicant at VCAT,[236] the Applicant paid CHI $11,000 by way of settlement, so that the issues in dispute between the parties were never litigated. The CHI contract provides that the amount referable to the construction of the frame is $44,000. The amount in fact paid by the Plaintiff was $8,851.70 plus $11,000 totalling $19,851.70.
10. Respondent's Counsel submitted that the Respondent should not be liable for any amount paid or settled under the CHI contract under which there was no legal obligation to pay any money by reason that the major domestic building contract did not comply with s 40 of the DBCA and Regulation 12.
11. The Applicant was legally represented and said that she paid CHI to get rid of the matter, because she could not afford to run the case. Respondent's Counsel further submitted that the settlement reached between the Applicant and CHI, on the basis of a non-complying contract, is not within the reasonable contemplation of the Respondents. As a result, they cannot be liable for any amount the Applicant paid CHI.[237] I disagree.
12. If the Respondent had:
    • (a) required particulars of the registration and insurance of CHI;
    • (b) refused approval following inspection of the frame; and
    • (c) required CHI, as the responsible builder, to rectify the defects and comply with the building permit;

then responsibility for rectifying defective and non-complying building works would have been placed fairly upon the responsible builder.

1. It is not to the point that the Respondent may not have predicted the precise circumstances in which the Applicant in fact paid money to her builder. The question is, whether it is reasonably foreseeable that the Applicant will be likely to suffer loss in the event that an unregistered [in the appropriate category] and uninsured builder performs defective building work in the circumstances which occurred. In my view, it is reasonably foreseeable.
2. Accordingly, in relation to the first frame, the Applicant is entitled to be compensated by the Respondent:
   • (a) for the sum of $19,851.70;
   • (b) her reasonable legal costs associated in defending and settling the claim made by CHI;
   • (c) expenditure incurred on materials for the first frame, excluding those items referable to the slab, which has been retained;[238] and
   • (d) the reasonable cost of demolishing the first frame.[239]
3. There is no entitlement to any recompense for payments made which are referable to the construction of the slab.

1. It is not in contention that the works carried out by Terry B were also substantially non-compliant and which resulted in a Stop Work Order and Building Notice.
2. Respondent's Counsel submitted to the effect that the Respondent cannot be held liable for any work or defective building work of Terry B in circumstances where the Applicant:
   • (a) failed to notify the Respondent of her intention to demolish the first frame;[240] and
   • (b) failed to apply for requisite changes to the planning and building permit to reflect proposed changes to the plans.[241]
3. In my view, these objections cannot apply where the Respondent is, in effect, in continuing breach of his statutory obligations and duty of care, in a context where the responsible supervising builder was not recorded on the building permit.
4. According to the Applicant's evidence, she did advise the Respondent that she had engaged another builder prior to any demolition or further works being undertaken. In view of previous findings, the manner in which the building work was allowed to continue, without a registered builder covered by requisite insurance, was due entirely to the neglect of the Respondent in failing to require, before any building work proceeded, requisite changes to the building permit. In effect, the scenario which pertained to CHI was again repeated in relation to Terry B.
5. Following the relevant inspection for the second frame, the Respondent again:
   • (a) failed to inquire as to who was in charge of the work;
   • (b) failed to inquire as to whether that person was registered and covered by the required insurance;
   • (c) failed to direct the person in charge of the work to rectify the work;
   • (d) failed to direct the person in charge of the work to display a notice in accordance with Regulation 317;
   • (e) failed to amend the permit to record Terry B as the builder and the required insurance particulars; and
   • (f) failed to keep any notes of this inspection; and
   • (g) failed to issue an appropriate inspection report.
6. Inquiries would have revealed that Terry B: was a registered builder, limited to carpentry works; had carried out substantial works outside of 'carpentry works'; was not covered by the required insurance; and did not have a contract which complied with the DBCA. The Respondent may also have determined that Terry B should be referred to the BC for investigation.
7. The works which Terry B constructed are substantially non-complaint. The Respondent could not inspect the frame, because the external brick wall had been constructed, obscuring the frame. The Respondent determined that the brick wall should be demolished, which precipitated the issue of a demolition order.
8. Furthermore, the frame did not comply with the permit documentation, there being substantial deviations to the permit. In the normal course of events, Terry B should have been directed to rectify the defective and non-compliant building work.
9. In my view, the costs incurred as a result of the building work undertaken by Terry B flow as a direct consequence of the Respondent's continuing breach of his duty of care and failure to enforce regulatory requirements. To this end, it does not matter whether the Respondent was in fact aware that Terry B had demolished the first frame or that building proceeded in non-compliance with the then building permit. The Respondent failed to make proper enquiries at an early stage, where it should have been clear to him that the Applicant was not the builder. Accordingly, the Respondent failed to ensure that the building permit recorded the builder registered in the appropriate category and covered by requisite insurance. The Applicant reasonably relied upon the Respondent's continuing implicit endorsement of the building permit, in that respect.

Delay in Issuing Stop Work Order ['SWO'] and Building Notice ['BN']

1. As detailed above, following the Respondent's site inspection on 16 September 2009, he determined that the building work did not comply with the planning permit or approved building permit and that a SWO and BN should be issued.
2. Inexplicably, the Respondent failed to issue a SWO and BN until over 2 weeks later, on 2 October 2009, following a further frame inspection. By email dated 5 October 2009,[242] the Respondent requested further documentation, including an amended planning permit and amended architectural drawings. The Applicant attended to these matters[243] and forwarded the amended planning permit to the Respondent.[244]
3. On 18 November 2009, the Respondent cancelled the SWO.
4. On 24 November 2009, following advice received from the Applicant,[245] the Respondent cancelled the BN,[246] but also advised the Applicant that she should not proceed with any amended works until the variation to the building permit has been issued.[247]
5. On 25 November 2009, the Respondent again attended the site and discovered that the as-built building did not correspond with the structural drawings and the working drawings.
6. The Applicant was dealing extensively with her engineers and subsequently with new draftsmen and was also herself amending the plans. The amendments in fact were certainly more than minor and subsequently became more extensive. Following the site meeting on 25 November 2009, the Applicant confirmed to the Respondent what she understood she needed to provided to him, which he in turn endorsed.[248]
7. In my view, it was not the role of the Respondent at any stage to be instructing the Applicant as to how she should be dealing with building practitioners such as appointed engineers or drafts persons. The Respondent did not know and nor was it his responsibility to know that the Applicant amended plans, ostensibly on the instruction of either Terry B or Phyland.
8. However, the chronology of events as detailed within, evidences a disturbing mismanagement of the permit process, which I will return to shortly.
9. Respondent's Counsel submitted that if the Applicant were in fact duped by unscrupulous builders, then the Respondents have no liability. Counsel relied upon National Australia Bank Ltd v Nemur Variety Pty Ltd.[249] In that case, an insurance broker paid customers' premiums to another intermediary which purported to be acting as agent for the insurer. That intermediary fraudulently endorsed cheques and the Bank credited those cheques to a third party's account. The broker sued the Bank for damages for conversion of the cheques and for breach of duty in negligently paying the proceeds of cheques and in negligently effecting a telegraphic transfer. The Court of Appeal held that the broker was not entitled to recover damages for consequential losses because the cause in fact of these consequential losses was the fraud of the intermediary, not the Bank's default.[250] Furthermore, the Bank's duty owed to a customer to exercise reasonable care and skill with respect to cheques and telegraphic transfers is purely contractual and not tortious.[251]
10. In my view, Nemur's case is readily distinguishable on its facts and findings. There is no question that the scheme put in place for Owner Builder permits was specifically directed at dealing with unscrupulous builders who may either masquerade themselves as an Owner Builder or procure a genuine building owner to front their building works as an Owner Builder. Furthermore, a building surveyor is an integral part of the scheme of domestic building regulation, which includes the objectives of consumer protection and enforcing prescribed building standards. While the Respondent does not bear any responsibility for the actions of another building practitioner or indeed any other person, in procuring a building owner to act as an Owner Builder, the liability of the Respondent to the Owner Builder otherwise arises from his failure to perform his statutory duties with due care and diligence.

1. On 5 January 2010, the building work was vandalised by unknown third parties.
2. Respondent's Counsel referred to a number of authorities which deal with the break in causation caused by unforeseen events, such as intervening criminal acts.
3. In Alexander v Cambridge Credit Corp:[252]

It is well-established that, in contract as in tort, the intervening act, sufficient to constitute a novus actus interveniens and break the chain of causation, can be the act of a third party: Pounder v North Eastern Railway Co [1892] 1 QB 385; Cobb v Great Western Railway Co [1894] AC 419 and Weld-Blundell v Stephens [1920] AC 956. However, the intervening act of a third party will not operate as a novus actus interveniens if the contractual duty of which the defendant is in breach was to guard against the very act of the intervener or that class of act: London Joint Stock Bank v Macmillan & Arthur [1918] AC 777; De La Bere v Pearson Ltd [1908] 1 KB 280; Stansbie v Troman [1948] 2 KB 48 and Schilling v Kidd Garrett Ltd [1977] 1 NZLR 243. Further, an abnormal intervening event, which combines with the defendant's breach of contract to cause damage to the plaintiff, will generally break the chain of causation unless the intervening act was of a kind which was to be reasonably anticipated: The Wilhelm (1866) 14 LT 636 and Monarch Steamship Co Ltd v Karlshamns Oljefabriker.

1. Criminal conduct of a third party is not within the reasonable contemplation of the parties, and is not regarded as a cause of a plaintiff's loss. In Modbury Triangle Shopping Centre v Anzil[253] the High Court found that, though the shopping centre's failure to leave the lights on in the car park facilitated the assault on the plaintiff, it did not cause his injuries. Not only is criminal conduct outside reasonable contemplation of a defendant; it is also outside a defendant's control.[254]
2. In Hay Property Consultants Pty Ltd & Anor v Burzic[255] the Court of Appeal held that a valuer who had engaged in misleading and deceptive conduct was not liable for the diminution in value caused by vandalism, which was an 'abnormal intervening act'.
3. On any view, the Respondent's statutory duties and duty of care owed to a building owner in the performance of those duties does not extend to the prevention of vandalism or deliberate malicious conduct by anyone.
4. The Respondent was not responsible for any malicious damage caused to the building work. Furthermore, notwithstanding the breaches of the statutory duty and breach of his duty of care toward the Applicant, it was not reasonably foreseeable that the malicious damage would flow from such breaches and there is no sufficient causal connection between such breaches and the occurrence of the malicious damage. Accordingly, the Respondent is not liable for any rectification costs in relation to such damage.
5. As a consequence of the vandalism, serious structural damage was caused to the building work.[256] The repair work was to be carried out by the Applicant's builders (presumably Wattleglen Homes).[257] However, it is unclear whether such repairs have been completed.
6. Regardless of any conduct of the Respondent, the frame could not be approved until it was repaired and any structural alterations documented by the structural engineer.

Assessment of Damages for Second Frame and Alleged Delays

1. The failure of the Respondent to ensure proper compliance with the building permit resulted in:
   • (a) the Applicant engaging and continuing with an initial builder for the second frame, Terry B, who was neither appropriately registered nor insured; and
   • (b) the relevant responsible builder not being required to rectify defective building work or otherwise comply with permit documentation.
2. In consequence, the Applicant has suffered loss and consequential damage as a result of defective building work and non-complying building work.
3. The difficulty at this point is to determine:
   • (a) to what extent building work associated with the second frame was indeed defective;
   • (b) to what extent building work associated with the second frame did not comply with the permit documentation;
   • (c) to what extent any non-complying building work under (b) was subsequently reflected in amended planning and building permits; and
   • (d) to what extent building repairs were a direct result of the malicious damage.
4. The Respondent is not liable for any cost associated with (c) and (d) above.
5. Unfortunately, Applicant's Counsel has not clearly identified the cost attributable to each of the above paragraphs.
6. The loss claimed by the Applicant in respect of the second frame is set out at subparagraphs 39(h) and 54(a) of the Points of Claim as follows:
   • (a) the amounts paid by the Applicant in relation to the new frame constructed by TCS Carpentry (Terry B), being ($47,908.70);
   • (b) the settlement paid to TCS, being $15,500;
   • (c) general damages for inconvenience and loss of amenity in the sum of $25,000; and
   • (d) the amount required to rectify the slab and the frame, as quoted by Wattleglen Builders in the sum of $80,207.60.[258]
7. According to Phyland's report,[259] as at 29 October 2009, 'the building is now back to 1st floor stage, full frame and base steel work approved'. Phyland's report, which dealt with the defects in the first frame, otherwise does not deal with any defective or non-complying work, in the second frame.
8. The Wattleglen Homes quotation clearly encompasses rectification works as a result of the malicious damage. It also encompasses additional work beyond that which Terry B was instructed to perform. Most critically, it is not apparent from the quotation, which works relate to the rectification of defective building work or non-complying building work, attributable to Terry B.
9. The Tribunal has no evidence of what has occurred since March 2011. In particular, there is no evidence as to what part of the structure constructed by Terry B has been retained.
10. In addition, at the Hearing, the Applicant led evidence of a bundle of invoices which she had paid and which included invoices in respect of Bunnings and Boroondara Council, some of which more likely relate to repairs following the vandalism. I accept Respondent's Counsel submission that it is impossible to ascertain to what purpose the various invoices relate and whether they properly reflect rectification costs not associated with the consequences of the vandalism.
11. Finally, the Applicant claims an amount on account of rental payments from 1 September 2009, amounting to $48,129.83 and continuing. This amount is claimed on the basis of consequential loss as the result of alleged delays caused by the Respondent.
12. In my view, the following circumstances have contributed to the delay in the progress of building work, which has occurred since mid July 2009 and more particularly since mid November 2009:
    • (a) On the part of the Respondent:

(i) failing to reply to enquiries of the Applicant and/or her solicitor;

(ii) delay in issuing a SWO and BN following the second frame inspection;

(iii) increasingly unprofessional and obstructive behaviour;

(iv) confusing instruction or lack of instruction of the Respondent in his dealing with the Applicant and other building practitioners; and

(v) issuing a further SWO and BN, ostensibly for the same reasons as the previously cancelled Order and Notice.

(b) the malicious damage caused to the building work in January 2010; and the time taken for rectification works;

(c) on the part of the Applicant, extensive changes made to the permit documentation, which appear to have been directed at both complying with the 'as-built' structure; and providing for additional features desired by the Applicant.[260]

454 In turn, these factors have all contributed to the delay in issuing an Occupancy Permit and the need for the Applicant to rely upon rental accommodation.

1. Respondent's Counsel submitted that the Applicant is effectively precluded from claiming any general damages for stress, anxiety, loss of amenity and inconvenience.
2. First, Counsel contended that non-economic 'general' damages for distress are rarely awarded for breach of contract unless they proceed from physical inconvenience caused by the breach of contract or unless the contract is one the object of which is to provide enjoyment, relaxation, or freedom from molestation.[261] There is no such common law restriction in respect of claims in negligence.
3. Secondly, the Applicant does not qualify for the purpose of the Wrongs Act 1958, which provides in s 28LE:

Restriction on recovery of damages for non-economic loss

A person is not entitled to recover damages for non-economic loss in any proceeding in a court in respect of an injury to a person caused by the fault of another person unless the person injured has suffered significant injury.

1. Under s 28LB:

injury means personal or bodily injury and includes -

non-economic loss means any one or more of the following -

1. Section 28LC(4) provides that Part VBA extends to a claim for damages for non-economic loss, even if the claim is founded on breach of contract or any other cause of action.
2. Section 28LF sets out the procedure for determining whether an injury, whether psychiatric or not, is a significant injury.
3. Accordingly, an award for general damages arising from a psychological injury cannot be made unless the claimant establishes a significant injury in accordance with the provisions of Part VBA. In this case the Applicant has not complied with this procedure.
4. The other aspect of non-economic loss, which was not developed by Applicant's Counsel, is inconvenience.
5. In Thomas v Powercor Australia Ltd[262] Forrest J considered the application of Part VBA in the context of a claim for damages for physical inconvenience, and whether personal or bodily injury, including psychological or psychiatric injury, encompasses a claim for such inconvenience. After considering a number of authorities, His Honour concluded:[263]

It follows from this excursus that a claim for damages that involves any component of mental distress, anxiety or stress is caught by the definition of injury and therefore Part VBA of the Wrongs Act applies. So claims in the past that have been allowed as being for "mental distress or anxiety" as part of a claim for inconvenience must be put to one side.

The question remains then whether a claim can be made for inconvenience alone where no mental harm is alleged as a consequence of that inconvenience.

In my opinion, notwithstanding the difficulties associated with identification of what constitutes physical inconvenience and also ensuring that no allowance is made for any element of mental distress, this category of damage remains claimable in tort ...[264]

The end result is, I think, that if a claim is to be made for inconvenience there needs to be a strong evidentiary foundation that the tortious act led to a genuine inconvenience of some significance (be that in terms of impact or duration).[265]

1. In this case, I am not satisfied that the Applicant has established an evidentiary basis for a genuine inconvenience of some significance caused by the negligence of the Respondent, which is separate and distinct from the claim for the cost of incurring rental accommodation.

1. If it is found that the Respondents are liable for the alleged loss and damage, the Respondents rely on the following evidence of contributory negligence of the Applicant:
   • (a) failing to read her obligations as set out in the Application Kit;
   • (b) signing a statutory declaration stating that she had read and understood the Application Kit when she said she had not read it;
   • (c) failing to follow up with the BC or anyone else as to what it meant to be an owner-builder;
   • (d) failing to read her obligations under the CHI contract;
   • (e) failing to follow up with anyone else her obligations under the CHI contract;
   • (f) failing to enforce her rights under the CHI contract so as to avoid payment;
   • (g) making significant alterations to working drawings and structural drawings;
   • (h) continuing to amend plans so that the as-built structure did not comply with the working drawings and structural drawings; and
   • (i) failing to apply for a further amendment to the planning permit for the as-built home until 27 January 2011.
2. Respondents' Counsel submitted that a reasonable person would not have entered into such a significant and costly project without taking steps to inform themselves of the risks and responsibilities associated with that project. I accept that it was the Applicant's responsibility to acquaint herself with the Owner Builder Application Kit and the rights and responsibilities clearly set out therein. However, once the building permit was issued, the Applicant reasonably relied upon the advice of the Respondent.
3. Any failure on the part of the Applicant thereafter, to read and understand contractual documentation or otherwise make further enquiry, does not absolve or diminish the responsibility of the Respondent from enforcing the BA and BR, as they relate to the management of a building permit.
4. However, in my view, the Applicant does bear responsibility for some of the delays in the building process, as acknowledged above. Accordingly, I propose to reduce the compensation otherwise payable in respect of rental accommodation by 50%.

1. The Respondent was not in breach of his duty of care when he issued an Owner Builder building permit to the Applicant in the first instance.
2. AABP was in breach of the Fee Proposal in that it failed or refused to provide any basis for the alleged outstanding fees.
3. AABP was in further breach of the Fee Proposal in that it failed or refused to provide the services of the Respondent in accordance with the express terms of that Proposal.
4. The Respondent was in breach of his duty of care to the Applicant in failing or refusing to enforce the BA and BR in relation to the proper management of an Owner Builder building permit.
5. The Respondent was in breach of his duty of care to the Applicant in failing or refusing to enforce the BA and BR in relation to requiring an amendment to a building permit which recorded the relevant registered builder and particulars of requisite insurance.
6. The Respondent was in breach of his duty of care to the Applicant in that he comprehensively failed to perform his statutory duties as a building surveyor by:
   • (a) not dealing with the Applicant as a builder, in the manner required for the purpose of an Owner Builder permit;
   • (b) conducting mandatory and other inspections and site attendances, where:

(ii) he dealt directly with a number of building practitioners, often without reference to the Applicant;

(iii) he failed to take any notes at his inspections, save for some notations on the building plans;

(iv) he failed to prepare a report following such inspections;

(v) he failed to make any record of telephone conversations relating to his dealings with the Applicant and other building practitioners;

(vi) he failed to identify defects, including substantial defects; and

(vii) he gave inadequate, misleading and confusing advice to the Applicant in relation to the result of inspections and what was required of her;

(c) purporting to approve the first frame, subject to engineers sign off, which neither constituted a meaningful 'conditional' approval nor gave adequate direction and instruction to the Applicant or other relevant building practitioners, as to what was required;

(d) determining to issue a Stop Work Order and Building Notice in relation to the second frame, and then failing to do so for two weeks;

(e) issuing a Stop Work Order and Building Notice in relation to the second frame without specifying the nature of the non-complying and/or defective work;

(f) issuing a further Stop Work Order and Building Notice ostensibly on the same basis, after the earlier Order and Notice had been cancelled; and

(g) otherwise causing unjustifiable obstruction and delay.

476 The Applicant suffered financial loss as a direct and foreseeable consequence of the Respondent's breach of statutory duties and negligence.

1. In relation to the Fee Proposal, the Applicant is entitled to be compensated by AABP in relation to payments made for inspections and other attendances charged in relation to the Respondent from and including the first frame inspection.
2. In relation to the first frame constructed by CHI, the Applicant is entitled to be compensated by the Respondent:
   • (a) for the sum of $19,851.70;
   • (b) her reasonable legal costs associated in defending and settling the claim made by CHI;
   • (c) expenditure incurred on materials for the first frame, excluding those items referable to the slab; and
   • (d) the reasonable cost of demolishing the first frame.
3. In relation to the second frame constructed by Terry B, the Applicant is entitled to be compensated by the Respondent for the following items:
   • (a) the reasonable cost of rectifying defective building work, to the extent to which such defects and corresponding costs are readily identifiable from tendered expert reports; and/or receipted accounts;
   • (b) the reasonable cost of rectifying non-complying building work, not otherwise the subject of amended planning and building permits; and
   • (c) the professional fees associated with complying with the requests of the Respondent following the first frame inspection, including the fees of BGE; Landy, Mitchell; Phyland; Fraser; and Khor & Burr solicitors.
4. In relation to delay, the Applicant is entitled to be compensated by the Respondent for 50% of the cost of rental accommodation incurred by the Applicant during the period 25 November 2009 until 15 June 2011.
5. The counterclaim will be dismissed.
6. I will hear the parties on the question of costs and the appropriate form of final orders.

DOMESTIC BUILDING CONTRACTS ACT 1995 (THE 'DBCA')

Section 5 of the DBCA provides, in part:

(a) the erection or construction of a home, including - ...

(23) A reference to a home in subsection (1) includes a reference to any part of a home.

Section 53 of the DBCA, provides, so far as it is relevant to this Application:

(1) The Tribunal may make any order it considers fair to resolve a domestic building dispute.

(2) Without limiting this power, the Tribunal may do one or more of the following -

(a) refer a dispute to a mediator appointed by the Tribunal;

(i) found to be owing by one party to another party;

(ii) by way of damages (including exemplary damages and damages in the nature of interest);

(ba) order the payment of a sum of money representing a part payment under a major domestic building contract if -

(i) the requirement in paragraph (b) of section 42 has been met but the requirement in paragraph (a) of that section has not; and

(ii) the Tribunal is satisfied that the work required to complete the contract (including rectifying any defects) is minor in nature and not such as would prevent the owner from occupation and quiet enjoyment of the building;

(bb) order payment of a sum of money representing the amount of any money in dispute (including an amount on account of costs) to be paid into the Domestic Builders Fund pending the resolution of the dispute;

(bc) order payment of a sum of money to be paid out of the Domestic Builders Fund representing the amount of any sum paid into the Domestic Builders Fund in accordance with an order under paragraph (bb);

(c) vary any term of a domestic building contract (including the completion date, the contract price, a provisional sum or the amount to be paid for any prime cost item);

(d) declare that a term of a domestic building contract is, or is not, void under section 132;

(e) declare void any unjust term of a domestic building contract, or otherwise vary a domestic building contract to avoid injustice;

(f) order the refund of any money paid under a domestic building contract or under a void domestic building contract;

(g) order rectification of defective building work;

(3) In awarding damages in the nature of interest, the Tribunal may base the amount awarded on the interest rate fixed from time to time under section 2 of the Penalty Interest Rates Act 1983 or on any lesser rate it thinks appropriate.

(4) In determining whether a term of a contract is unjust under subsection (2)(e), the Tribunal may have regard to -

(a) the intelligibility of the contract generally, and of the term in particular;

(b) the extent to which the term, and its legal and practical effect, was accurately explained to the building owner before the term was agreed to and the extent to which the building owner understood the term and its effect;

(c) the relative bargaining power of the parties to the contract;

(d) the consequences to the parties to the contract if the term is complied with or not complied with and the relative hardship of those consequences to each party;

(e) whether or not it was reasonably practicable for the building owner to reject, or negotiate for a change in, the term before it was agreed to;

(f) the relationship of the term to the other terms of the contract;

(g) whether the building owner obtained independent legal or other expert advice before agreeing to the term;

(h) whether unfair pressure, undue influence or unfair tactics were used to obtain the building owner's consent to the contract or the term;

(i) whether at the time the term was agreed to the builder knew, or could probably have found out by asking, that the term would cause the building owner hardship;

(j) the conduct of the parties to the contract after the term was agreed to;

(k) whether the term is usually found in domestic building contracts;

(m) whether the term is unconscionable, harsh or oppressive;

(n) any other factor the Tribunal thinks is relevant.

(5) Despite anything to the contrary in this section, in determining whether a term of a contract is unjust, the Tribunal is not to have regard to any injustice arising from circumstances that were not reasonably foreseeable when the term was agreed to.

Section 54 of the DBCA defines a 'domestic building dispute' so far as it is relevant to this Application, as follows:

(1) A domestic building dispute is a dispute or claim arising -

(ii) a building practitioner (as defined in the Building Act 1993); or

in relation to a domestic building contract or the carrying out of domestic building work; or

(2) For the purposes of subsection (1), a dispute or claim includes any dispute or claim in negligence, nuisance or trespass but does not include a dispute or claim related to a personal injury.

(3) A reference to a building owner in this section includes a reference to any person who is the owner for the time being of the building or land in respect of which a domestic building contract was made or domestic building work was carried out.

Under s 3 of the BA, the term 'domestic building work' is defined as having the same meaning as it has in the DBCA.

SECTION 108 FAIR TRADING ACT 1999

Section 108 of the Fair Trading Act 1999 was substantially re enacted in Section 184 of the Australian Consumer Law and Fair Trading Act 2012, with effect from 1 July 2012, as follows:

184 Settlement of consumer and trader disputes or small claims

(1) VCAT may hear and determine a consumer and trader dispute.

(2) VCAT may do one or more of the following in relation to a consumer and trader dispute -

(a) refer a dispute to a mediator appointed by VCAT;

(i) found to be owing by one party to another party;

(ii) by way of damages (including exemplary damages and damages in the nature of interest);

(d) declare that a term of a contract is, or is not, void;

(e) order the refund of any money paid under a contract or under a void contract;

(f) make an order in the nature of an order for specific performance of a contract;

(k) order a party to do or refrain from doing something;

If the supplier has default listed the purchaser with a credit reference agency in relation to a perceived debt owing, VCAT, in addition to declaring that there is no debt owing, may order the supplier to contact the credit reference agency and have the default listing removed from the purchaser's credit record.

(3) The power to make an order under subsection (2)(j) may only be exercised by a judicial member of VCAT.

(4) In awarding damages in the nature of interest, VCAT may base the amount awarded on the interest rate fixed from time to time under section 2 of the Penalty Interest Rates Act 1983 or on any lesser rate it thinks appropriate.

317 Provision and display of permit information

(1) A person who is in charge of the carrying out of building work on an allotment must take all reasonable steps to ensure that a copy of the building permit and one set of any approved plans, specifications and documents relating to that permit are available for inspection at the allotment concerned while the building work for which the building permit was issued is in progress.

(2) A person who is in charge of the carrying out of building work on an allotment must -

(i) the registration numbers and contact details of the builder and building surveyor; and

(ii) the number of the relevant building permit and the date of issue of the permit -

are displayed on the allotment in a conspicuous position accessible to the public prior to the commencement of building work (including demolition or removal of a building on the allotment); and

(b) take all reasonable steps to ensure that a copy of that information continues to be so displayed and remains visible and legible for the duration of the building work to which the permit applies.

(a) perform his or her work as a building practitioner in a competent manner and to a professional standard; and

(b) immediately inform the client in writing if a conflict of interest arises or appears likely to arise between his or her interest as a building practitioner and that of his or her client; and

(c) receive remuneration for his or her services as a building practitioner solely by the professional fee or other benefits specified in the contract of engagement or by the salary and other benefits payable by the building practitioner's employer.

A building practitioner who contravenes the requirements of regulation 1502 may be the subject of an inquiry under section 179 of the Act.

1. [3] A doctor's certificate was provided indicating that the Applicant had a history of depression and associated anxiety symptoms.

[4] TB 2.278, Tab 42: also refer to Respondent's email 27 May 2010 at TB 2.280, Tab 43.

[5] [2010] VSC 295 at [44] This passage was adopted with approval by His Honour Judge Shelton in the County Court Building Cases Division in Brirek Industries Pty Ltd v McKenzie Group Consulting (Vic) Pty Ltd [2011] VCC 294 at [99].

[7] Which deals with the requirement for building surveyors to carry out inspections at mandatory notification stages as defined in Regulation 7.1.

[8] Which deals with the power of a building surveyor to cause an inspection of building work at any time.

[9] Which deals with the power of a building surveyor in the conduct of inspections.

[10] Which deals with directions by the building surveyor to a person in charge of carrying out the building work and the issue of a building notice.

[11] Which deals with the obligation upon a building surveyor to issue a certificate of final inspection.

[12] Which deals with the circumstances in which a building notice may be issued.

[13] Which deals with the circumstances in which a stop work building order may be issued.

[14] Which deals with matters which the building surveyor must refer to the BC.

[17] As set out in POC 5 and 6 respectively.

[18] [2004] VCAT 547 at [39].

[20] Which encompassed: slab and frame, with windows.

1. [21] Such building work should be performed by a builder registered in the appropriate category and covered by the requisite insurance; bricklaying of the external walls would also have constituted major domestic building work. This work is to be distinguished from certain specialised work which is exempt under the DBC Regulation 6(b): hydraulic services (plumbing); roof plumbing; electrical; insulation; internal walls and ceilings (plastering); internal floor coverings (carpet, tiles, lino etc); painting (both internal and external); a flat-pack kitchen installed by an Owner Builder; flyscreens etc; and TV antenna.

[24] Witness Statement signed on 7 May 2012, as amended and adopted on 8 June 2012.

[25] Witness statement signed on 17 May 2012.

[26] Witness statement signed on 2 May 2012.

[27] Witness statement signed on 30 May 2012.

[28] Refer ss 170(1)(b)(ii) and 170(5) of the BA.

1. [31] Exhibits CC, DD, EE, FF, GG and HH.

[33] Ex 11: Witness statement confirmed 15 June 2012 minus paragraphs 9 and 10.

[34] TB Vol 2 Tab 10 photo 33 shows the collapsed brick wall.

[36] Preliminary drawings had been prepared by Terry B's godson, who could not afford the time to complete.

[38] The Applicant gave evidence that she relied on the advice of the plumber and concreter, in this regard.

[40] Exhibit U: email of 9 December 2008; and Exhibit Y: letter dated 28 November 2008.

[41] Exhibit RH-2 to Hodgson's witness statement: TB 3.326.

[42] Under cover of email dated 24 November 2009, which otherwise makes no reference to the circumstances of the amended drawings, as explained in the Applicant's evidence.

[43] Exhibit RH-2 to Hodgson witness statement: TB 3.326; 3.327 and 3.328.

[47] TB 2.4, Applicant's Witness Statement paragraph 15.

[48] Ex N; Page 5 of the statement lists questions identifying the requisite knowledge of an Owner Builder, with which the Respondent agreed.

[49] The Respondent under cross-examination.

[50] Refer also Respondent's witness statement at paragraph 7; TB 3.3.

[52] Between 19 and 25 February 2009: TB 4.174, 4.175, 4.179, 4.182, 4.184, 4.187.

[53] All of whom are noted on the Application for Building Permit dated 24/01/09: TB 3.38.

1. [55] TB 3.28, 3.29 3.30 all prepared by the Applicant; TB Vol 4A 4.191, email from the Applicant to the Respondent enclosing Work Protection Notices.

[57] Refer also, Points of Defence filed 18 August 201: especially paras 14(b)(ii); 16(a); para 18 - particulars para (vii); 20(b)(iii); 22(b)(i); 25((b)(vi) and (vii); 31(b)(ii); para 55 - particulars).

[59] Refer also to Exhibit 9: Amended witness statement of Respondent.

[60] TB 4.599: Application Kit for an Owner Builder summarises the responsibilities assumed as a builder.

[62] In his evidence Hodgson agreed he gave the Applicant Laukart's details.

1. [63] The Council said she needed to make sure that the builder had insurance. Laukert pointed to Particulars of Contract (TB 2.38) which indicated CHI had Home Owners Warranty insurance.

[64] Exhibit 4 to affidavit; and TB 2.32.

[65] A description given in the witness statement of Vincent Urbano, which he could not substantiate in his oral evidence: TB 3.333, paragraph 3.

[68] Urbano denied receiving such cash.

1. [69] TB 3.53: By email to the Applicant dated 17 March 2009, the Respondent confirmed that an inspection carried out that day was not approved; he refers to additional approvals and says that if she used an engineer other than BGE then BGE would still have to approve.

[73] TB3.55. Those drawings are at TB4.204A-E.

[75] Respondent's witness statement at [19].

[76] Refer photos taken by the Applicant behind tab 10, with the numbers 13, 14, and 15.

[78] Cf evidence of the Applicant that she advised the Respondent upon signing a contract with CHI.

[79] Exhibit 6 to affidavit. The Applicant said that she only saw this email during Discovery process in an earlier proceeding against CHI.

[80] TB Vol 3, 3.74 email from the Respondent to BGE.

[81] Cf Phyland report which says that: "vi. Bracing incorrectly applied".

[83] Including the arrow endorsed on 4.47 Plan S7A.

[85] The Respondent was referred to photos taken by the Applicant's daughter on 25 April and 2 May 2009.

[88] He agreed he could have issued a Building Notice and a Stop Work Order.

1. [90] The Respondent agreed that he did not later check that this had been done. He also made no enquiries as to who was working on site.

[97] Exhibit 13 to affidavit; TB Vol 2 Tab 13.

[99] Exhibits 15, 16 and 17 to affidavit.

[102] Exhibit 19 to affidavit; TB Vol 3, Ex 21, 3.100.

[104] TB Vol 4B, 4.249 email dated 15 June 2009.

[107] Vol 2 Tab 26 2.196 and 2,197 & 2.199

[108] Vol 2 Tab 26 2.196 & 2,197 and 2.199.

[114] Exhibit 24 to affidavit; TB Vol 2, 2.191.

[116] Exhibits 26 and 27 to affidavit.

[117] TB Vol4, 4.370-4.374; report dated 26 October 2009.

[120] Ex SM 26 to Respondent's witness statement; TB 3.8.

1. [122] Contrary to the witness statement of Hodgson, who said he found the Applicant difficult and then impossible to work with, the Applicant said that she never had any problems, arguments or complaints with Hodgson.

[123] TB 3.326: Email dated 24 November 2009 from Hodgson to the Applicant alleging unauthorised amendments to and use of his plans.

[124] Being drawings which the Applicant says the Respondent put a strike through Hodgson's stamp.

[137] In which she copied names from previous permit; together with copies again of Compliance Frame & Steel and Roof Truss manual.

[138] These drawings were still using the Hodgson's design.

[144] Exhibit 32 to affidavit; TB 2.226, 4.377; 3.172.

[146] TB 3.330. Hodgson explains his position in quite some detail.

[150] Refer exchange of emails 3.240, 3.149, 3.151. Respondent did not reply to building permit application.

1. [151] Exhibit 4; Not enough head room for stairs provided by TB and Phyland. She went to Phyland who said there was enough head room so that part was left alone.

[154] Exhibit 36 to affidavit; TB 3.178.

[165] Exhibit 46 to affidavit; TB 3.216.

[172] Exhibit 59 to affidavit; TB 3.242.

[174] TB 3.263 refers to a site meeting on 3/12/2010, the Applicant was not present.

[175] TB 2.331: Exhibit 54 to affidavit.

[176] TB 2.331: Exhibit 54 to affidavit.

1. [180] TB 3.276; Plans commencing 3.277 dated 14.02.2010 have been endorsed by Council cf plans commencing 3.251 which bear a later date, 12/05/2010.

[183] TB 2.348, letter dated 6 May 2011.

[185] Ex DD and Ex EE 536, Letter from BC dated 16 June 2011 to Respondent is in identical terms.

[186] Ex FF, Vol 4B 4.538; and Ex GG Vol 4B 4.543 a being relevant correspondence.

[188] Refer in particular to the statements of Urbano, Hodgson and Bartzis.

[189] For instance, timber measurements of 70x30 instead of the specified 60x40.

[190] Exhibit Q: Exchange of emails and faxes between Respondent and CHI and the Applicant.

[192] Sections 24A, 24B and 24C and Division 3A.

[193] Ms Delahunty Minister for Planning Assembly 3 June 2004.

[194] TB 4.596-4.627. refer pages 3, 8 and 10.

[195] All of which are comprehensively covered in the Information Statement which a prospective Owner Builder is required to declare that they have read.

1. [197] Section 5(23) DBCA provides that: A reference to a home in subsection (1) includes a reference to any part of a home.

[198] Section 25E(1)(e), subject to (4).

[202] Refer form of declaration required to be made by an applicant for a Certificate of Consent: TB 4.624.

[204] See in particular Respondents' Final Submissions at [24].

[205] Refer exemptions applicable under Regulation 6(b) of the DBCA Regulations.

[207] Refer also National Australia Bank Ltd v Nemur Variety Pty Ltd [2002] VSCA 18; (2002) 4 VR 252 at 274-5 per Batt JA.

[208] [2004] VCAT 547 at [39].

[209] [2003] VCAT 375 (at [39]).

[210] [2006] VCAT 1363 (11 July 2006) at paragraphs 242-244.

[211] [2003] NSWCA 225 per Ipp JA at [30].

[212] [2006] VSCA 30 the 'Taitapanui case'.

[213] At para 47 per Ormiston and Ashley JJA.

[217] At paragraph 10 per Maxwell P quoting from Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515 At 530-1, [23].

[219] At paragraph 30(1) referring to Bryan v Moloney (1995) 182 CLR 609 at 627.

1. [222] Regulation 317 deals with the provision and display of information on the building permit and prescribes a penalty. The Respondent agreed that there was never (as far as he ever saw) any sign or notice as required by regulation 317.

[223] Both Phyland and Mitchell reported that the frame could not be rectified and should be demolished.

[224] Refer report of BGE dated 18 May 2009 which identified 13 issues: see TB at 2.128; and report of Landy: Exhibit Z.

[225] Cf evidence of Hodgson who readily identified defects from photographs and said he would have prepared a report with photographs and required rectification and then a further inspection.

1. [226] Following his oral qualified approval on site to Laukert, the Respondent emailed BGE one or two days later on 1 May 2009, without any advice to the Applicant. TB: 3.74.

[227] TB 2.121, email from James of CHI to the Applicant on 7 May 2009; and TB 4.385.

[228] The Respondent admitted that his current form of Pro forma inspection report does not contain the option of 'approved subject to...; Refer Exhibit P.

[231] Refer email of Respondent TB 3.81.

[235] CHI also claimed 'variations' totalling $15,460.50.

[236] Exhibit 8; and POC 25. Refer also paragraph 15 of CHI POC; TB 2.45; CHI was not permitted to demand any payment from Ms Orders under the contract because Regulation 12 of the DBR Regulations 2007 was not complied with.

1. [237] Refer Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd [1998] HCA 38; (1998) 192 CLR 603, at 615 - 616 where McHugh J dealing with alleged losses flowing from a breach of contract, observed... 'a contract breaker must be taken to have reasonably contemplated that its breach may force the innocent party into litigation with third parties and that the innocent party may conclude it is in its best interest to compromise the third party's claim.'

[238] Exhibit Z: Refer Attachment D to Phyland's report. It is apparent from the list contained in this attachment that some items, that the accounts for Austral Bricks and Fulton, at least, may need to be excluded.

[239] I note that the sum of $4,807 has been previously claimed for cost of demolition, but it is unclear where this amount comes from: TB 4.459.

[240] TB3.119. When the Respondent subsequently discovered that the frame had been demolished, he emailed the Applicant for an update.

[241] TB3.113 email dated 28 July 2009 in which the Respondent sets out the requirement for amendments to building and planning permits and seeks the Applicant's advice.

[248] 25 November 2009 (TB3.168); and 27 November 2009 (3.172).

[249] National Australia Bank Ltd v Nemur Variety Pty Ltd [2002] VSCA 18; (2002) 4 VR 252 at 274-5 per Batt JA.

[250] Per Phillips and Batt JJA. [1], [2], [41].

[251] Per Callaway and Batt JJA. [9], [45]-[48].

[252] (1987) 9 NSWLR 310 McHugh JA as he then was said at 361-362.

[253] [2000] HCA 61; (2000) 205 CLR 254.

[254] Modbury Triangle Shopping Centre v Anzil at [40], [42], and [152].

[255] [2010] VSCA 247; see especially Neave JA at [86] - [92].

[256] Detailed in the report of the Applicant's insurer's loss adjustor dated 15 February 2011 at TB3.285 and the report of the truss manufacturer Pryda dated 25 November 2010 at TB3.298.

[257] Pursuant to the quote she obtained on 20 January 2010 (EX JJ).

[260] The Applicant made amendments to her plans between the time she obtained her amended planning permit on 5 November 2009 and a further amended planning permit on 7 March 2011.

[261] Baltic Shipping Company v Dillon [1993] HCA 4; (1992) 176 CLR 344 at 365 per Mason CJ.

[262] [2011] VSC 586.