1. The legislation is well known and has been often canvassed in this List and I will not set it out again. Suffice to say that the proportionate liability regime in Victoria is governed by Part IVAA of the Wrongs Act. Claims for indemnity and contribution may be brought under section 23B of the Wrongs Act.[2]

1. Again, the practice of the Building and Property List in dealing with joinder applications is well known and has been set out in detail in many decisions.[3] The first matter to note is that:

It is a serious matter to join a party to a proceeding, and is a discretion that should not be exercised lightly because of the possible cost implications for the party joined, and the other parties to the proceeding.[4]

1. It is also well established that for joinder to be allowed, the Respondents case against the Proposed Joined Parties needs to be open and arguable' and the Tribunal ought to take the Respondents' case at its highest.[5]
2. As DP Aird (as she then was) said in H Building at [19]-[21] (footnotes omitted):[6]

19. In considering any application for joinder the Tribunal will not be concerned with the substantive merits of the allegations that the proposed respondent is a concurrent wrongdoer for the purposes of an apportionment defence under Part IVAA of the Wrongs Act 1958, or a claim for contribution and indemnity under that Act. Nor is the hearing of a joinder application the time to determine contested questions of fact or law including questions of statutory interpretation.

20. The Tribunal is not a court of pleadings and the tendency by many proposed parties in seeking to oppose joinder applications by focussing on pleading nuances is discouraged. In allowing an application for joinder the Tribunal must be satisfied that the proposed pleadings reveal an open and arguable case supported by particulars, such that:

(i) the proposed Points of Defence where a respondent seeks to take advantage of Part IVAA clearly articulate a legal cause of action the applicant has, or would have had, but for the proposed respondent being dead or wound up or the expiry of any relevant limitations period, against the proposed respondent;

(ii) the proposed Points of Claim, where a respondent claims contribution and/or indemnity under s23B, clearly sets out the respondent's claim against the proposed party; and

(iii) the affidavit material filed in support of the application for joinder demonstrates there is some evidence that, if proven at the final hearing, supports the allegations set out in the proposed pleading. It is not necessary or desirable for comprehensive affidavit material containing all of the evidence to be filed in support of a joinder application.

21. Relevant particulars are important. Generally, a pleading which simply states that a duty of care is owed, or a contractual relationship exists, without giving particulars of the duty or the contract and the alleged breach, will not reveal an open and arguable case.

Unless the affidavit material clearly establishes that the application is misconceived, for instance because the proposed party was not incorporated until after the date of the contract, extensive affidavit material filed in opposition to a joinder application generally does no more than reinforce that there is an open and arguable case to which the proposed party has a defence.

THE APPLICATION FOR JOINDER FOR THE PURPOSES OF PART IVAA

1. In summary, each party opposing joinder for the purposes of Part IVAA does so on a legal and factual basis. Legally they contended that:
   1. the Applicant's claim is not an apportionable claim; and
   2. the Proposed Joined Parties are each not a 'concurrent wrongdoer' within the meaning of section 24AH of the Wrongs Act.
2. Factually, they contend that the allegations are misconceived and/or no evidence has been provided to support the allegations.
3. I will address the application under Part IVAA in the following manner below. I will summarise:
   1. the proposed pleading, evidence and submissions in support of the application to join the Surveyor Parties;
   2. the submissions and evidence given by the Surveyor Parties in opposition;
   3. the proposed pleading and submissions in support of the application to join the Plumbing Parties and the Roof Plumbing Parties;
   4. the submissions and evidence given by them in opposition; and
   5. the Applicant's submission in opposition;

1. THE APPLICATION AGAINST THE SURVEYOR PARTIES

1. It is helpful to set out relevant extracts from the APOD, insofar as they relate to the proposed third respondent ('Konjarski') and the proposed fourth respondent ('CBS').
2. In paragraph 18, the Respondents admit that they were 'owner-builders of the Project, or, put another way, owner builders of the dwelling on the Property'.
3. In paragraphs 29-30 they allege in summary that:
   1. Konjarski was a registered building practitioner in the category of Building Surveyor, and a director and an officer, employee, or agent of CBS; and
   2. CBS is a company carrying on business as a building surveyor and liable for Konjarski's conduct as a director and/or agent of CBS. The particulars provided are section 128 and section 129(2)-(3) of the Corporations Act 2001(Cth). They also plead that CBS was the principal of Konjarski, and/or the employer of Konjarski and vicariously liable for all acts and omissions committed by Konjarski. No particulars are provided of that allegation.
4. At paragraph 41, the APOD pleads that 'Konjarski and CBS (collectively, the Building Surveyor) were subject to the duty to:
   1. ensure that construction of the Project complied with the Building Act and the Regulations made thereunder, all relevant Australian Standards, including that the Builder had in place the applicable statutory domestic building insurance;
   2. issue Building Permits in respect of various stages of the Project and the Property's construction, only after being satisfied that the documentation for each stage of the building of the Property complied with all relevant and regulatory requirements, including that the Builder had in place the applicable statutory domestic building insurance, and approval of same;
   3. conduct prescribed mandatory inspections at the statutorily required stages of the Project and check and approve whether the works complied with all relevant regulatory requirements, including cover by the applicable statutory domestic building insurance policy;
   4. approve various stages of the works thereby permitting the Builder to proceed to the next stage of the works, including ensuring ongoing coverage by the statutory domestic building insurance;
   5. satisfy itself by obtaining a copy from the Builder of the domestic building insurance issued for the Property;
   6. satisfy itself that the Builder had in place domestic building insurance for the Property; and
   7. satisfy itself that the Property met the requisite energy rating as held out by Paul or as required pursuant to the building permit and / or occupancy permit.'
5. These duties are defined collectively as 'the Building Surveyor Duties'. The particulars of these allegations are stated as:

The terms in the above subparagraphs are implied by operation of Sections 19, 24, 33 to 38, 76, 77, 135 to 137E of the Building Act and are referred to as the "building surveying services."

1. At paragraphs 44-5, the APOD sets out the alleged breaches of the Building Surveyor Duties. Surprisingly, given the extent of duties pleaded at paragraph 41 (set out at paragraph 19(a)-(g) above), the alleged breaches appear to only relate to a failure to check the plumbing works and to satisfy themselves the property would meet a particular energy rating. The pleading is that 'the Building Surveyors breached the Building Surveyor Duties in the following manner:
   1. In breach of the Building Act Warranties, Konjarski and CBS failed to ensure that the [plumbing works] and the [roof plumbing works] complied with the Building Act and the Regulations made thereunder, all relevant Australian Standards, including that the Builder had in place the applicable statutory domestic building insurance; and
   2. in breach of the Building Act Warranties, failed to satisfy themselves that the Property met the requisite energy rating:
      1. as held out by Paul as owner-builder; and/or
      2. as required pursuant to the building permit and/or occupancy permit.'

1. I repeat, there is no pleaded allegation by the Respondents that the Surveyor Parties failed to ensure that the Respondents had in place the applicable statutory domestic building insurance, despite their pleading that the Surveyors had an obligation to check this. However after being served with the affidavit of Konjarski (set out below), the First Respondent filed an affidavit in response.
2. Ms Eade deposed that she does not agree that Paul was an owner builder such that he was exempt under section 25E of the Building Act. She did not understand in what capacity Paul was undertaking the construction and that she did not sign the application for a building permit. However, she said Konjarski was always aware that they were constructing two units and he was required to be satisfied of the existence of insurance in the name of the building company operated by Mr Eade, Momentum Developments Pty Ltd. Counsel for the Respondents, Mr O'Halloran, submitted that in light of the matters deposed to by Ms Eade, they may seek to withdraw the admission that they carried out the works as an owner builder.
3. She also exhibited documents relating to the windows and deposed that she had had a conversation with 'Shorty' from 'Shorty's Glass' who said words to the effect that the windows installed are not double glazed but achieve the same energy rating as a double glazed window.

1. The Respondents submitted that:
   1. the claims made by the Applicant in the FAPOC are apportionable claims within the meaning of the Wrongs Act;
   2. in the case of CBS, it should it be joined even though it alleges it effectively subcontracted its obligations as the relevant building surveyor;
   3. there is no basis upon which the Proposed Joined Parties can resist joinder by the POCC; and
   4. it is appropriate for VCAT, in all the circumstances, to hear and determine the proceeding as a whole, as between all the parties, in a single trial.
2. The Respondents contend that the Surveyor Parties had a duty to ensure that the energy rating was achieved, and that relevant insurance was in place. They say that those duties are contained within sections 19, 24, 33, 38, 76, 77, and 135 to 137E Building Act. Konjarski signed the relevant documentation, which had the effect of the Surveyor Parties warranting that all laws and requirements under the Building Act were complied with. Further, any assessment of whether they delegated the duty, and if it was effective, are properly questions for trial.
3. Further, as noted at paragraph 20 above, Mr O'Halloran submitted that in light of the matters deposed to by Ms Eade, they may seek to withdraw the admission that they carried out the works as an owner builder. He also submitted that any criticisms of or deficiencies in the pleadings, such as matters raised which may be outside the Tribunal's jurisdiction (being a federal matter within the meaning of Thurin)[7] could be resolved if the Respondents are given leave to file a further version of the POCC and the APOD. I note here that Counsel and the solicitors for the other parties advised they would strenuously oppose any such applications, and stressed that for the purposes of the present application, the Tribunal must limit itself to the matters pleaded, not any potential amendments. I agree.

1. The Surveyor Parties oppose the joinder on the following grounds:
   1. Factually, it was CBS which was retained by the Respondents, not Konjarski. The Respondents have provided no evidence or pleading to establish a basis for joining Konjarski personally.
   2. Selleck alleges that Surveyor Parties have certified the property as a 6.3-star energy rating. However there is no evidence before the Tribunal to show how they certified it. On the contrary, Konjarski's evidence is that the Respondents provided him with the relevant certification.
   3. The Surveyor Parties were entitled to and did rely on certificates issued by registered building practitioners (sections 128 and 238 Building Act).
   4. Any plumbing or roof plumbing defects are claimable against the licensed plumber and/or his insurer and are not open and arguable apportionable claim as against the Surveyor Parties.
   5. Insofar as the energy rating for the property, it was the Respondents who chose the type of windows and glazing. Any loss or damage is not founded in negligence or a failure to take reasonable care by the Surveyor Parties. Eade was not a tortfeasor and the Applicant's claim is not an apportionable claim.
   6. Because the Respondents constructed the dwelling as owner builders, there was no 'applicable statutory domestic building insurance' (as is pleaded in the APOD) and so the Surveyor Parties had no duty or obligation to investigate or assess whether the Respondents had 'statutory domestic building insurance' at the time of issuing the building permit or occupancy permit.
   7. As Mr Eade was a registered builder, he was exempt from the requirement to obtain a Certificate of Consent from the Victorian Building Authority to build as an owner builder (section 25E of the Building Act). Accordingly, there can be no failure on the part of the Surveyor Parties when issuing the building permit or the occupancy permit.

1. Konjarski deposed that:
   1. he was appointed as the building surveyor by the Respondents;
   2. Mr Eade was a registered domestic builder who undertook the construction along with Ms Eade as owner builders;
   3. as Mr Eade was a registered builder, he was exempt by section 25E of the Building Act from the requirement to obtain a Certificate of Consent from the Victorian Building Authority to build as an owner builder;
   4. as owner builders, the Respondents were not required to provide a contract or domestic building warranty insurance at the time of construction. While they were required to obtain a report and insurance pursuant to section 137B of the Building Act prior to selling the property, that is not a matter over which the building surveyor has any responsibility or ongoing obligation;
   5. prior to issuing the building permit, Konjarski was required to be satisfied that the construction would comply with the Act, Regulations and the Building Code of Australia. One of the considerations required was that the house would achieve a minimum of a 6-star energy rating;
   6. Konjarski was entitled to (by section 128 Building Act) and did rely on a NatHERS certificate (Nationwide House Energy Scheme Certificate) and endorsed drawings provided by the Respondents which certified the building would achieve a 6.4-star rating when built. Konjarski stamped the NatHERS certificate and the endorsed drawings as part of the approved building permit documentation.
   7. During the building works, all mandatory inspections required under the permit were undertaken by a registered building inspector at the request of Konjarski. Konjarski does not know why the inspector failed to identify the lack of double glazed windows in the final inspection. It might be difficult to assess on-site if a window is double glazed once installed.
   8. The Respondents were responsible for ordering, paying for and installing the windows and so their installation must have been a deliberate choice by them; it cannot be said to be a mistake.
   9. Had the inspector identified the windows, before an occupancy permit would be issued the Respondents would have been required, at their cost, to replace the windows or seek a variation and supply updated energy rating certificates. The Applicant's loss and damage is caused by the Respondents.
   10. Prior to issuing the occupancy permit, Konjarski was entitled to (by section 238 Building Act) and did rely on plumbing compliance certificates issued by the Plumbing Parties and the Roof Plumbing Parties, glazing certificates in respect of the windows and the shower screens, and certification signed by Paul Eade as to Town Planning Compliance and Sustainability Measures.

2. THE APPLICATION AGAINST THE PLUMBING AND ROOF PLUMBING PARTIES

1. In respect of the Plumbing Parties, the Respondents allege at paragraphs 31-2 that:
   1. the proposed fifth respondent ('Ries') was a registered and licensed plumber, and a director and an officer, employee, or agent of Ries Plumbing; and
   2. the proposed sixth respondent ('Ries Plumbing') was liable for Ries's conduct as a director and/or agent. The particulars provided are section 128 and section 129(2)-(3) of the Corporations Act 2001 (Cth). They also allege that Ries Plumbing was the principal of Ries, and/or the employer of Ries, and vicariously liable for all acts and omissions committed by Ries. No particulars are given of these allegations.
2. At paragraphs 35-7, they allege that Ries and Ries Plumbing completed plumbing works and that Ries was subject to duties under the Plumbing Regulations 2008 (Vic) to carry out the work in a good and workmanlike manner, and to exercise such proper or reasonable care that a prudent registered plumber would exercise. It is alleged that these duties are 'owed to the world at large, including the Owner, pursuant to r14 Plumbing Regulations'.
3. A similar pleading is made against the proposed seventh and eighth respondents, ('Fisher' and 'Fisher Plumbing' respectively), in respect of the roof plumbing works, at paragraphs 32-4 and 38-40. The particulars provided include references to section 128 and section 129(2)-(3) of the Corporations Act 2001 (Cth).
4. The APOD then sets out the alleged defective work carried out by the Plumbing and Roof Plumbing Parties (at paragraph 43). Surprisingly, there are no particulars given of how each of these defects constitute a breach of the alleged duties.

1. The Respondents made the same general submission as at paragraph 25 above. Further, they say (in relation to both the Plumbing Parties and the Roof Plumbing Parties):
   1. the Plumbing and Roof Plumbing Parties had to exercise reasonable care to carry out the work in a proper and workmanlike manner. That is a duty owed to the Respondents and the Applicant, and the world at large;
   2. in the case of the Plumbing and Roof Plumbing Parties which are natural persons, they were directors of the relevant corporate veils. They conducted the work through the corporate veils, but were the natural persons who signed off on the work and are registered and licenced plumbers within the meaning of sections 221O-221M Building Act;
   3. the Plumbing and Roof Plumbing Parties knew, or at least ought to have known of the standards in section 137C, and indeed, all relevant standards that applied to them as registered, licenced plumbers;
   4. the Respondents also contend that the Applicant has waived her right to claim against the Respondents, which leaves open her claim as against the Plumbing and Roof Plumbing Parties who owe the duties independently of the Respondents; and
   5. whilst the Wrongs Act requires an allegation of a failure to take reasonable care, the duty owed is to complete work in a proper and workmanlike manner. Failure to do so is a negligent act which causes economic loss. The failure can be:
      1. contractual (ie, derived from provisions of the contract of sale with standards, and remedies, governed by the contract and the law of contract); or
      2. tortious, in the sense that a common law or statutory duty is not met (ie, derived from the Building Act or the duty to complete the project in a proper and workmanlike manner).

1. The Plumbing Parties adopt the submissions of the other opposing parties, and say further:

1. The Applicant's claim is not an apportionable claim. The Applicant's claim against Ms Eade is based on a breach of the warranties provided in section 137C of the Building Act which places the liability solely on the vendor (Ms Eade). The warranties contained in the Building Act do not 'arise from a failure to take reasonable care'. 2. The Plumbing Parties are not a 'concurrent wrongdoer' within the meaning of section 24AH of the Wrongs Act. There is no allegation in the pleadings that either of them: 1. are liable for the damage the subject of the Applicant's claim; 2. owe a duty of care to Ms Peck; or 3. have any other liability to Ms Peck.[8]

1. Factually, it was the company Ries Plumbing which was engaged by Mr Eade. Any claim against Ries personally is bound to fail.

1. Damien Ries filed an affidavit in which he deposed that it was the company Ries Plumbing Pty Ltd which was engaged by Mr Eade, which rendered the invoices and which was paid by Mr Eade.

1. The Applicant opposes the joinders for the purposes of Part IVAA of the Wrongs Act, on the following grounds:
   1. the Applicant's claim is not an apportionable claim; and
   2. the Proposed Joined Parties are each not a 'concurrent wrongdoer' within the meaning of section 24AH of the Wrongs Act.

1. The Applicant's claim against the Respondents as pleaded in the FAPOC is for breaches of the warranties provided under section 137C of the Building Act. Relevantly, that section states:

S 137C. Warranties for purposes of homes under section 137B

(1) The following warranties are part of every contract to which section 137B applies which relates to the sale of a home -

(a) the vendor warrants that all domestic building work carried out in relation to the construction by or on behalf of the vendor of the home was carried out in a proper and workmanlike manner; and

(b) the vendor warrants that all materials used in that domestic building work were good and suitable for the purpose for which they were used and that, unless otherwise stated in the contract, those materials were new; and

(c) the vendor warrants that that domestic building work was carried out in accordance with all laws and legal requirements, including, without limiting the generality of this warranty, this Act and the regulations.

1. Apportionable claims within the meaning of section 24AF of the Wrongs Act are relevantly, those claims 'for economic loss or damage to property in an action for damages (whether in tort, in contract, under statute or otherwise) arising from a failure to take reasonable care'. The terms in which the claim is framed are the starting point for deciding whether the claim is apportionable.[9]
2. The Applicant and Proposed Joined Parties contend that none of the warranties implied by section 137C of the Building Act are in respect of 'a failure to take reasonable care'. As the Applicant's FAPOC does not rely in any way on concepts of 'duty of care', or 'reasonable care', the Respondents' application must fail.
3. The Respondents submit that whether a particular build was undertaken in 'a proper and workmanlike manner' (within the meaning of the subsection 137C(1)(a) warranty) necessitates questions of standard of care, standard industry practice, and departure from established standards, including relevant Australian Standards. That is, the subsection (1)(a) warranty may involve questions of a duty of care. They refer to Kettyle v E. Cheong Garden Pty Ltd & Ors, where Senior Member Walker held in the context of a duty of care in negligence:

... the standard of care required ... was to use reasonable care to avoid economic loss to the Owner from a failure on his part to construct the Unit properly and according to the plans. 'Properly' in this context means in a proper and workmanlike manner and using good and sufficient materials.[10]

Are the section 137C(1) warranties absolute?

1. The parties all referred to decisions considering whether the warranties implied by section 8 of the Domestic Building Contracts Act 1995 (Vic) ('DBC Act') are or are not apportionable. The parties and I are not aware of any decided cases to date involving the owner builder warranties implied by section 137C of the Building Act.
2. The Applicant and Plumbing Parties submit that the warranty in subsection 137C(1)(a) is very similar in terms to the subsection 8(a) warranty of the DBC Act. They say that I should follow the authorities which indicate that the subsection 8(a) warranty is not apportionable, including Bellini v Meldan (Vic) Pty Ltd and Upton v Hartman Construction & Development Pty Ltd.[11]
3. They say that that given the similarities between subsection 137C(1)(a) and subsection 8(a), and following the decisions that the warranty in subsection 8(a) is not apportionable, then the warranty in subsection 137C(1)(a) must also not be apportionable.
4. It is my view that these are questions that should be properly determined at the final hearing, not on an interlocutory joinder application. The determination of these issues will have a significant impact on the application of Part IVAA to proceedings involving owner builder warranties.
5. The parties should have the opportunity to make considered submissions on statutory interpretation and in relation to the authorities. For example, one obvious difference which needs to be considered is that there is no equivalent in section 137C to the subsection 8(d) warranty. Does this support or detract from the Respondents' contention that that there is a similarity between 'reasonable care' and 'proper and workmanlike standard'? Further, even if it is to be so interpreted, there are competing authorities as to whether the subsection 8(a) warranties are apportionable.[12] In light of Owners Corporation PS623721 v Shangri-La Construction Pty Ltd,[13] which was handed down following the hearing in this application, the question may have now been determined contrary to the Applicant and Plumbing Parties' submission.

Does the material reveal an open and arguable case that the Applicant's claim is apportionable?

1. However, having said that, I am not satisfied that it is appropriate to join the Proposed Joined Parties on the basis of the pleadings and evidence currently before me. The Respondents' submission is that in order to determine whether a particular build was undertaken in 'a proper and workmanlike manner', questions of standard of care, standard industry practice, and departure from established standards, including relevant Australian Standards, must be examined. Notwithstanding this submission, the Respondents have not provided any particulars in their pleadings, nor taken me to any evidence, addressing standards of care, standard industry practice, established standards or Australian Standards.
2. The items for which the Respondents seek apportionment with the Proposed Joined Parties are listed at paragraphs 26, 27, 35, and 36 of the POCC, and paragraphs 43(a) and 43(b) of the APOD. There is nothing pleaded for those lists of items which addresses the question of standards of care or industry practice or established standards or Australian Standards. The particulars do refer to an expert report obtained by the Respondents of Bob Lorich dated 15 July 2022. I was not taken to the expert report during the hearing, and it was not referred to in the supporting affidavit material, however there is a copy on the Tribunal file which I have perused.
3. Mr Lorich does not provide any opinion as to what the relevant standards of care, standard industry practises, established standards, or Australian Standards, in relation to the roles of each proposed joined party. At his highest, Mr Lorich states only:

At [3] and [8.3] Once again the Building Surveyor has issued a Final Certificate & could be held responsible for the lack of double glazing.

At [8.4] This item is claimable against the roofing plumber (Or his insurer) who carried out the work on site.

At [9.0] There is a clear claim against the following consultants & trades in my opinion:

e- Ice Konjarski from Certified Building Surveying.

1. For the sake of completeness, even though the Respondents do not appear to plead the Applicant's expert report, I also perused the expert report of Phillip Naughton dated 19 October 2021, which is relied on in the FAPOC. Mr Naughton makes no comments at all about any standards owed or breached by the Proposed Joined Parties.
2. As a result, based on the pleadings and evidence before me, and on the evidence referred to in the pleadings, I am not satisfied that the Respondents have demonstrated an open and arguable case that any of the Proposed Joined Parties were required to and failed to take reasonable care.

Are the Proposed Joined Parties a 'concurrent wrongdoer'?

1. For a person to be a 'concurrent wrongdoer' sharing responsibility in respect of an applicant's claim, the person alleged to be a 'concurrent wrongdoer' must be liable for the damage that is the subject of the applicant's claim, where the word 'liable' has the meaning of liable by way of cause of action known to the law.[14]
2. If the only objection from the Proposed Joined Parties was that factually, they did not do anything wrong, I would nevertheless be open to joining them to the proceeding. There is some evidence before me in expert reports that the Plumbing and Roof Plumbing Parties carried out defective work. There is a factual dispute on the affidavits referred to above about the energy rating of the property and the role of the building surveyor in that. There is also evidence that the individual proposed parties, Ries and Fisher, signed certificates as they were required to do as conditions of their licence/registration. Similarly, Konjarski as the building surveyor, issued permits and may have some liability in his personal capacity for so doing. Whether or not the Proposed Joined Parties actually did anything wrong would be a matter to be determined at trial.
3. However, the question is not simply one of the facts alleged. In order to determine whether there is an arguable legal liability from each of the Proposed Joined Parties to the Applicant, I must also consider the pleadings.

Does the material reveal an open and arguable case that they are concurrent wrongdoers?

1. I agree with the Applicant's submission that the Respondents have failed to set out in any pleading how any or all of the Proposed Joined Parties owe a legal liability to the Applicant. As SM Farrelly said in McClafferty:

In my view, there is a necessary nexus between the apportionment of responsibility between concurrent wrongdoers, and the existence of a cause of action known to law in the hands of the applicant as against each concurrent wrongdoer ...

In my view a respondent seeking to limit its liability by an apportionment defence must present an arguable case as to the existence of that nexus. The respondent must say why the alleged other concurrent wrongdoer is liable to the applicant, or would be liable if not dead or wound up, for the loss and damage being claimed by the applicant.[15]

1. The POCC and APOD plead each of the Proposed Joined Parties owed various duties. The APOD pleads various duties owed by the Surveyor Parties under sections 19, 24, 33 to 38, 76, 77, and 135 to 137E of the Building Act, but does not plead to whom the duty is owed. Each of these sections sets out specific tasks that a building surveyor is required to do. None of them make any reference to a duty owed to the Applicant, or to anyone else, or raises a failure to take reasonable care.
2. The APOD alleges that the Plumbing and Roof Plumbing Parties were 'subject to duties under the Plumbing Regulations 2008 (Vic)' and that these duties are 'owed to the world at large, including the Owner, pursuant to regulation 14'. This regulation provides as follows:

Any registered plumber, licensed plumber or other person authorised to carry out plumbing work under the Act must carry out plumbing work in a good and workmanlike manner.

1. It will be observed that this regulation sets out a specific obligation for a plumber. There is nothing in the regulation which refers to a duty to the Applicant or to anyone else, or raises a failure to take reasonable care. While in my view it is arguable as a general proposition that a subcontractor plumber may owe a duty to an owner and a subsequent owner (analogous to a building surveyor because of their statutory obligations to be licensed and to issue compliance certificates), this will be a question of fact, and the facts giving rise to the duty must be specifically pleaded. It is not enough simply to refer to a regulation which itself does not refer to a duty.
2. The APOD then sets out the alleged defective work carried out by the Plumbing and Roof Plumbing Parties (at paragraph 43). Surprisingly, there are no particulars given of how each of these defects constitute a breach of the alleged duties.
3. Further, in the POCC, the Respondents plead that each of the Proposed Joined Parties owed duties to them as implied terms of their retainers. The pleading does not go on to explain how these duties are also owed to the Applicant. In circumstances where there appears to be no vulnerability between the Respondents and each of the Proposed Joined Parties, it appears unlikely that a duty of care would be owed to the Respondents, let alone the Applicant.
4. The Applicant helpfully set out in her submission the relevant principles which must be addressed by the Respondents in order to establish that their sub-contractors owe a proprietor, or any subsequent proprietor, a duty of care. The following principles may be distilled:[16]
   1. the concept of 'vulnerability' considers whether or not a party can protect their own interest, including by an examination of contractual and/or statutory provisions which may be available to that party;
   2. if that party is so protected by certain contractual and/or statutory provisions, then it cannot be said that that party is 'vulnerable'; and
   3. the common law should not be used to alter the primacy of the contract and the allocation of economic risk between parties, however, statutes may supplement the common law to provide protection to a class of people.
5. The Respondents have failed to provide at least some evidence to address these principles. I agree with the Applicant that in the current application, the Respondents have failed to plead any proper detail or material facts in support of a duty of care. For this reason alone, there has been a failure to demonstrate that it is open and arguable that any or all of the Proposed Joined Parties are a 'concurrent wrongdoer'.
6. At its highest, the POCC establish only that each of the Proposed Joined Parties were all subject of a contract with Mr Eade. Unless those contracts are somehow said to be novated to the Applicant, which is not the case, then there is no other legal liability to the Applicant articulated.

THE APPLICATION FOR JOINDER FOR THE PURPOSES OF INDEMNITY OR CONTRIBUTION

1. Leave is not required for joinder for the purposes of a counterclaim or cross-claim. A counterclaim or cross-claim is a separate application which is filed in the same proceeding for administrative convenience.[17] In the present matter, the Respondents filed the POCC and paid the fee for a new application. But for the administrative processes adopted by the Tribunal, the counterclaim 'would otherwise have been a separate proceeding'.[18]
2. Having said that, it is open to the Respondents to the counterclaim or cross‑claim to make an application for orders under section 75 of the Victorian Civil and Administrative Act 1998 (Vic) summarily dismissing or striking out all, or any part, of the claim that is frivolous, vexatious, misconceived or lacking in substance; or is otherwise an abuse of process.
3. The Proposed Joined Parties have raised issues with the POCC. The Respondents have conceded they need to amend the POCC, at the very least to deal with the reliance on the Corporations Act 2001 (Cth). As noted above, the pleadings against each of the incorporated proposed parties rely on section 128 and section 129(2)-(3) of the Corporations Act 2001 (Cth). Following the decision in Thurin, it appears that the Tribunal may not have jurisdiction if this allegation involves a federal matter.
4. Other complaints about the POCC include the lack of particulars as to the basis on which the alleged contractual terms are to be implied. In respect of the Plumbing and Roof Plumbing Parties, I note that as presently pleaded they appear to mirror the section 8 warranties implied by the DBC Act. If that is the pleader's intention, then it seems misconceived, as plumbing works are excluded from the DBC Act. In respect of the Surveyor Parties, the criticisms made of the APOD apply equally to the POCC. If the reliance on the Corporations Act 2001 (Cth) is removed, the Respondents must identify the causes of action against the companies.

1. For the above reasons, I will allow the joinder of the Proposed Joined Parties for the purpose of indemnity or contribution, but will order the Respondents to file amended points of counterclaim. Based on the pleadings and evidence before me, I refuse the Respondents' application to join them for the purposes of a defence under Part IVAA. The question of costs is reserved.

[1] The document is not headed 'proposed' but the Respondents seek leave to file and serve it in order to amend the Points of Defence filed 29 August 2022: Respondents' Submissions 28 September 2022 at [6].

[2] Although this document is headed 'Points of Counterclaim', it includes the cross-claims proposed against the Proposed Joined Parties.

[2] In Thurin v Krongold Constructions [2022] VSCA 226 ('Thurin') at [33], the Court of Appeal raised, but did not answer, the question whether the Tribunal has jurisdiction to hear claims under section 23B. Until this question is decided in the negative, I will continue to follow the Tribunal's practice since its commencement that it does have jurisdiction.

[3] Including Adams v Clark Homes Pty Ltd [2015] VCAT 1658; McClafferty v Greg Smith Pty Ltd [2019] VCAT 299 ('McClafferty'); Owners Corporation 1 Plan No PS63800J v Equiset Construction Melbourne Pty Ltd [2019] VCAT 671 ('Equiset'); Owners Corporation 1 PS538430Y v H Building Pty Ltd (ACN 091 236 912) (under external administration) [2019] VCAT 680 ('H Building'); Owners Corporation PS646781P v Verve Constructions Pty Ltd [2019] VCAT 642; McCann v Shangri-la Construction Pty Ltd [2020] VCAT 80 ('McCann').

[4] Per DP Aird in McCann (n 4) at [7]-[8].

[5] Zervos v Perpetual Nominees [2005] VSC 380; (2005) 23 VAR 145.

[6] H Building (n 4) at [19]-[21].

[8] Although the Plumbing Parties' submission refers to a duty of care or any other liability owed to Ms Eade, I presume they mean the Applicant Ms Peck, as this is what must be established in order to be a concurrent wrongdoer under Part IVAA (see paragraphs 53ff below).

[9] Tanah Merah Vic Pty Ltd v Owners Corporation No 1 of PS613434T [2021] VSCA 72 at [115].

[10] [2012] VCAT 1097 [111].

[11] [2021] VCAT 833 and [2022] VCAT 224 respectively.

[12] For example, as well as the two cases in the previous footnote, Owners Corporation PS623721 v Shangri-La Construction Pty Ltd [2022] VCAT 1499; Kettyle v E. Cheong Garden Pty Ltd & Ors [2012] VCAT 1097; McCann (n 4); LU Simon Builders Pty Ltd v Allianz Australia Insurance Ltd & Ors [2013] VCAT 468; Owners Corporation No 1 of BS613436T v LU Simon Builders Pty Ltd [2019] VCAT 286; Jinalea Pty Ltd v Mace [2019] VCAT 1732; Mazzeo v Camilleri [2021] VCAT 150; Barton v Stiff [2006] VSC 308.

[13] [2022] VCAT 1499 at [133].

[14] McClafferty at [46], relying on St George Bank Ltd v Quinerts Pty Ltd [2009] VSCA 245, at [76], [77] (Nettle JA).

[16] Bevendale Pty Ltd v Equiset Construction (Epping) Pty Ltd [2010] VCC 805; Woolcock Street Investments Pty Ltd v CFG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515; Brookfield Multiplex Ltd v Owners - Strata Plan No 61288 [2014] HCA 36; (2014) 254 CLR 185.

[17] Forty Third Janelda Pty Ltd v Allen [2009] VCAT 138 at [10]; ACN 005 918 959 Pty Ltd v Moulieries [2022] VSC 555 at [106].

[18] Clements v Barlow [2010] VCAT 1113 at [17].