1. The [Builder] claimed extra $7,047 on top of the FIXED site cost on the day of the signing of contract which never discussed before in any of the 8 estimates we received from sales representatives. We were explained that extra cost as a result of site investigation, a breakdown of that extra cost is as follows with brief reasons:
   • $1,977 for providing earthworks to create level building platform for construction
   • $1,790 for additional allowance of 5 cubic meters of rock excavation and removal
   • $3,280 for providing concrete piers and design fee

b. The term "FIXED site cost" is in fact not fixed.

1. It failed to inform us that the site is in an area of quaternary basalt, and has a high likelihood of hitting a substantial amount of rock.

1. As described above, I found that the Owners had withdrawn their claim based on allegedly fixed costs.

1. There is no suggestion that the Owners were told the site they already owned is in an area of quaternary basalt, but if the McGregor Geotechnical report was competent, it provided both parties with information on the likelihood of hitting rock. No evidence was given by the Owners about what difference this information would have made to them.

1. This was not pleaded but there were a number of suggestions from the Owners that the Builder should have built up above the rock, rather than digging down into it. One was made by Mr Mladichek in his addendum (since withdrawn) and questions were asked of the Builder's witnesses in examination in chief and cross-examination.
2. However as there is evidence from Mr Patel that this was not discussed between the parties, and as the Owners have not provided an engineering design and costing to show it was physically and commercially feasible, I do not take it into account.
3. Further, I accept the evidence of Mr Sciessere that if the home were sited higher, the difference between the level of the road and the level of the garage would make it too steep to easily get cars into the garage.

1. I declare that for the reasons given above, no further sum is payable by the Owners to the Builder for rock. The Builder's counterclaim is dismissed.

[1] Transcript, page 65, line 17 and following

[2] Victorian Civil and Administrative Tribunal Act 1998, s98(1)(b)

[3] Calculation of quantity of rock which could reasonably be ascertained from foundations data

[4] This is the in-ground volume. The issue of how rock should be measured is discussed further below.

[6] Transcript, page 26, line 7. The neighbour's property is the west side of the Owners'.

[7] JG King v Sansome & Anor (Domestic Building) 2009 [VCAT] 2226

[8] A payline is the line of excavation, backfill, compacted backfill or embankment which is described in the specifications or shown on the drawings which describe or show the limits to which earthworks are paid for.

[9] See general comments at paragraph 138 regarding Mr Mladichek's evidence

[10] [2009] VCAT 2226 at paragraph 75

[11] Transcript of 18 January 2013, page 231, line 10

[12] The relevance of this invoice was not made clear to me. If it is in addition to the 60m3 for trenches, the total trench volume appears to be 65m 3.

[13] [2009] VCAT 2226 at paragraph 79.

[14] [2009] VCAT 2226

[15] At my direction this case was brought to the attention of the parties by letter of 29 November 2012

[16] Transcript of 17 December 2012, page 187 line 27 and following.