Plaintiff v Defendants

2 Given the relatively limited nature of the matters which remain in dispute, I will not embark upon an exhaustive recount of the background to this proceeding and chronology of events. In summary, the following relevant events took place:

(a) on 7 March 2013 Mr Flanagan issued a Protection Work Notice ("Notice") addressed to Mrs Cerantola and her husband, which specified the nature of certain protection works proposed to be carried out by the builder engaged by Valorne;

(b) the Notice specified what the Cerantolas were required to do under s 85 of the Act, namely:

the adjoining owner must respond to a notice under section 84 of the Act by giving to the owner within fourteen (14) days a notice under section 85 of the Act -

(i) Agreeing to the proposed protection work; or

(ii) Disagreeing to the proposed protection work; or

(iii) Requiring more information.

Failure to respond will be taken as agreement to the proposed protection work.

(c) on 21 March 2013 Mrs Cerantola and her husband sent a document headed "Protection Work Response Notice" ("Response Notice") to Mr Flanagan. The Response Notice contained a notation circling (ii) against the words "Disagree with the proposed protection work for the following reasons", under which was written the words:

Further information to be provided.

(d) on 21 March 2013 Mr Flanagan responded by email to Mrs Cerantola informing her that the Response Notice was unacceptable, and provided her with a further six days to provide reasons why she disagreed with the proposed protection works;

(e) on 27 March 2013, Mrs Cerantola's solicitors, Best Hooper, wrote to Mr Flanagan referring to, among other things, previous protection notices, confirmed that Mrs Cerantola disagreed with the proposed protection works, and requested an extension of time to respond to the Notice, suggesting Friday, 5 April 2013;

(d) on 28 March 2013, Mr Flanagan responded to Best Hooper stating that the Response Notice was "incomplete/ inappropriate", that he had allowed Mrs Cerantola further six days to respond, and he had determined the protection works were appropriate;

(e) on 1 April 2013 Mr Flanagan advised the builder that the protection works were appropriate and could be carried out;

(f) the protection works were carried out between 2 April and 5 April 2013;

(g) on 5 April 2013 Mrs Cerantola issued a document headed "Notice of Referral of Matter to the Building Appeals Board". The other parties nominated on the form were R.A. Melchiari, (an engineering consultant retained by Mrs Cerantola), a representative of the builder engaged by Valorne, and Mr Flanagan;

(h) on 18 July 2013 the Board conducted a hearing. Mr Flanagan had been notified about the hearing, and attended. Mr and Mrs Cerantola were present, along with Mr Melchiari. Mr Melchiari produced a written submission outlining his concerns with the proposed protection works. Mr Flanagan had not been provided with this document prior to the hearing, and was not prepared to deal with it;

(i) at the hearing, the Board stated that there were other persons who needed to be present and the matter would be adjourned so that "stern directions" could be made against persons not present;

(j) on 29 July 2013 the Board served a document headed "Notice of Directions Hearing" to be held on 1 August 2013, upon, among others, Valorne;

(k) on 31 July 2013 the solicitor for Valorne was informed by an officer of the Board that as the hearing would be a directions hearing only, no witnesses would be required;

(l) at the hearing on 1 August 2013 , at which both Mr Flanagan and a barrister retained by Valorne attended, it became apparent that the Board was going to order the building works to stop; and

(m) on 2 August 2013, the Board issued directions ("2 August orders").

(a) joined Valorne as a party to the proceeding;

(b) ordered Valorne to stop all building work on the site immediately until such time as the Board makes a determination regarding the adequacy of the protection work ("stop work order");

(c) gave directions regarding the filing and service of further expert reports and submissions; and

(d) adjourned the appeal to a date to be fixed.

4 The 2 August orders included the following under the heading "Reasons of the Board":

1. The parties are referred to the requirements of s88 (1) (c) of the Building Act, which requires that building work ceases whilst an Appeal is on foot.
2. The Board has formed a preliminary view that the protection work may be inadequate based on evidence provided by the Appellant at the previous hearing. In particular the Board refers to the geotechnical investigations carried out on behalf of the Second Respondent. The Board cannot make any final determination as to the adequacy of the protection work until the supplementary information sought is provided.
3. The Board notes that worker safety may be compromised on the site given the lack of clarity of the protection work which may have been carried out. The Board would have issued the direction to stop work based on the above reasons even if the Board did not take into account the possible compromise of workplace safety.

5 Building works on the site ceased immediately and various subcontractors were stood down.

6 On 5 August 2013, Valorne issued a proceeding in this Court, seeking that the stop work order be quashed, and seeking urgent interlocutory relief. The matter came before Judd J in the Practice Court on the afternoon of that day. The Board was represented by Ms Ruth Hamnett, a solicitor employed by the Victorian Building Authority (a statutory body related to the Board) instructed by a Registrar of the Board. Ms Hamnett, on behalf of the Board, opposed the application for interim relief, and submitted as follows:

(a) When it comes to issuing stop-work orders, it's not a question of natural justice, but a question of public safety, and the [Board] stands in the shoes of the relevant building surveyor in that circumstance and they are required to issue a stop-work order if they are concerned that protection works may not be adequate to protect public safety; and

(b) the Board made a decision in the interests of public safety to issue a stop-work order.

7 The hearing was adjourned to the following day, and the Board was represented by Mr Niall SC. Mr Niall did not oppose Valorne's application for interim relief, but was not instructed to consent to the orders sought by Valorne.

8 On 6 August 2013, Judd J made orders providing that the operation of the stop work order be suspended until the hearing and determination of Valorne's interlocutory application for such relief, or further order, and published short written reasons. His Honour found at [20] - [23]:

The plaintiff was not given notice of, and did not attend, the previous hearing, and had no opportunity to address the evidence on which the Board apparently acted to reach the conclusion that the protection work may be inadequate. Nevertheless, the Board acted upon that evidence and made to make an order that was highly prejudicial to the plaintiff.

The plaintiff contended that the decision of the Board was void on at least two grounds. The first round was a denial of procedural fairness; and the second, that the Board did not have the power to make an order stopping all work on the site.

The allegation of a denial of procedural fairness is readily articulated. The plaintiff contended that it was entitled to any notice of the appeal, but received none. At the proceeding on 18 July, the Board expressed the view that work should be stopped, based on the evidence not available to the plaintiff. When notice was then given to the plaintiff, two days before a hearing described as a directions hearing, the plaintiff's solicitor was informed that witnesses were not required. To any reasonable person, such a statement would have conveyed the clear impression that the hearing was not one that would result in the making of any substantive order, based on evidence, that may be prejudicial to the interests of the plaintiff.

The plaintiff has, in my opinion, established a strong arguable case that it was denied procedural fairness. Further, the order made extends to all works on site. The plaintiff contended that the scope of the order goes beyond that which was required under s 88(1) of the Act, which only related to works connected with the protection work.

Putting that distinction to one side, it would be a curious outcome, even absurd, if the Board was authorised to stop works unconnected with the protection works. In the present case, the protection works were completed months ago. Once again the plaintiff has, in my view, made out a strong case to argue that the order is void on this ground.

I turn to the balance of convenience. The evidence discloses that the developer has already suffered a substantial loss as a consequence of the suspension of work and, if the suspension is to continue, will suffer and continue to suffer very substantial loss. The protection work was completed some months ago. The work that was carried out was reviewed by the engineers and certified as appropriate. Evidence was given by John Kyrgios, a structural engineer engaged by the plaintiff, to the effect that there was no reason why works could not safely resume on the site.

9 On 13 August 2013 Valorne's solicitors informed Mrs Cerantola by way of letter of the orders made by Judd J on 6 August 2013, referred to a telephone conversation that a solicitor employed by them had with Mrs Cerantola on 8 August 2013, and requested that she notify them as to whether she wished to take any further part in the proceeding.

10 Mrs Cerantola responded by email on 15 August 2013, stating that:

Your staff member has totally misrepresented me.

11 On 27 August 2013, Valorne's solicitors filed extensive written submissions with respect to the ongoing appeal before the Board, which was listed for 8 October 2013. The introductory section of the submissions summarised Valorne's position with respect to the appeal, as follows:

The Appeal is opposed by the Second Respondent for the following reasons:

1. The appeal is not valid as the Appellant has not complied with the requirement of service of a protection works response as set out in Section 85 of the Building Act 1995 (Vic) (the "Act") and Regulation 602(5) of the Building Regulations 2006 (the "Regulations").
2. The protection works described in the protection works notice dated 7 March 2013 which is the subject of this Appeal ("Disputed PWN") were completed prior to or on the day that this Appeal was lodged with the Building Appeals Board. All requirements pursuant to the Act and/or the Regulations with respect to the Disputed PWN have been fulfilled and accordingly, no question arises before the Building Appeals Board for its consideration.

1. The protection works described in the Disputed PWN are adequate and appropriate, particularly so in circumstances where:

1. the engineering design accompanying the Disputed PWN has been independently reviewed and approved by another structural engineer; and 2. the matters contained in an updated A.S. James Pty Ltd Geotechnical Report dated 22 August 2013 and obtained pursuant to the directions made by the Building Appeals Board dated 2 August 2013 ("Updated As James Report") which state, inter alia, that whilst there is "still potential for anticipated minor settlements [to occur] as a new equilibrium is reached: 1. "these minor settlements will not produce large movements or even movements significant enough to give rise to concern as to the adjoining driveway"; and 2. "no signs of movement were evident at our inspection of 15 August 2013".

1. the matters contained in a letter from John Kyrgios and Associates Pty Ltd dated 23 August 2013 and obtained pursuant to the directions made by the Building Appeals Boar dated 2 August 2013 which state inter alia that based on the matters contained in the Updated AS James Report no updated protection work structural engineering design is required.

Accordingly, based on the Updated AS James Report and other material included with these submissions, the Second Respondent seeks that the Appeal be dismissed 'on the papers' without the need for a further hearing.

12 The submissions made in paragraphs (A) and (B) above formed the basis for Valorne's submissions in this proceeding regarding the relief sought by it in its Amended Originating Motion. Notwithstanding these submissions, the Board proceeded to hear the appeal on 8 October 2013, and has reserved its decision.

13 Valorne filed and served an amended originating motion on or about 11 October 2013, which sought the following substantive relief:

(a) that the decision made by the Board on 2 August ordering Valorne to stop all building work on the site immediately until such time as the Board makes a determination regarding the adequacy of the protection work be quashed;

(b) a declaration that Mrs Cerantola's application to the Board made on 5 April 2013 challenging Valorne's Protection Work Notice dated 7 March 2013 ("appeal") was invalid and/or a nullity, on the basis that the second defendant is deemed to have agreed to the proposed protection work under section 85(3) of the Act; and

(c) costs.

14 Prior to the hearing of this proceeding on 7 November 2013, there was an exchange of correspondence between the parties, in particular between Valorne and the Board. The outcome of this exchange was that the Board consented to the orders sought in paragraph 13(a) above, neither consented to or opposed the orders in paragraph 13(b) above, and resisted Valorne's claim for its costs of the proceeding. Mrs Cerantola's position remained somewhat unclear, but the Court received a copy of a letter from her to the solicitors for Valorne dated 17 October 2013. This letter canvassed issues regarding the protection works at the property, enclosed an email she sent to the Board on 15 April 2013 seeking to add Valorne as a party to the appeal, enclosed a copy of a receipt for a registered post item which she said was in respect of the documents sent by her to Valorne concerning the appeal lodged by her with the Board, and stating:

I respectfully request that I not be nominated as a second defendant in these proceedings (with no cost to myself) as I cannot contribute any more than what I have stated in this letter.

Please consider my situation. I do not wish to be part of or oppose these proceedings. I simply would like and deserve for my property to be fixed safely.

15 At the hearing, counsel on behalf of Valorne pressed Valorne's claims that the Board should pay Valorne's costs of the proceeding up to and including the hearing before Judd J on 6 August 2013. Mrs Cerantola also appeared at the hearing. She did not oppose an order quashing the decision of the Board to issue the stop work order, but did oppose an order declaring that the appeal was invalid and/or a nullity.

16 Notwithstanding the fact that there was no opposition to an order quashing the stop work order, it is accepted practice[1] that the Court does not automatically "rubber stamp" orders which involve a finding that a tribunal, statutory authority, or inferior court has made an error of law.

17 Valorne relies upon the following grounds in seeking to quash the stop work order:

1. The first defendant (the "Board") denied the plaintiff natural justice by deciding to direct the plaintiff to stop all building work on site immediately until such time as the Board makes a determination regarding the adequacy of the protection work, without giving the plaintiff any opportunity to be heard, alternatively, any reasonable opportunity to be heard, as follows:

(a) an appeal to the Board under Part 7 (Protection of Adjoining Property) of the Building Act 1993 (Vic) was issued by the second defendant on or about 4 April 2013 ("the Appeal");

(b) the plaintiff:

(i) was not a party to the appeal;

(ii) was, until on or about 29 July 2013, unaware of the appeal;

(iii) was not given any notice whatsoever of a hearing to be conducted by the Board on 18 July 2013 (the "18 July Hearing");

(c) at the 18 July Hearing:

(i) the second defendant made submissions to the Board;

(ii) the Board decided to order the plaintiff to immediately stop all building works onsite pending determination of the Appeal (the "Decision");

Particulars

The plaintiff was first informed of the 18 July Hearing on or about 29 July 2013 and the Decision at the hearing on 1 August 2013, referred to below, and is otherwise unaware of the particulars of the 18 July Hearing and the Decision.

(d) subsequent to the 18 July 2013 Hearing, on a date presently unknown to the plaintiff, the Board conducted a site inspection from the street (the "Site Inspection");

Particulars

The plaintiff was first informed of the Site Inspection at the hearing on 1 August 2013, referred to below, and is otherwise unaware of the particulars of the Site Inspection.

(e) on or about 29 July 2013, the plaintiff received a notice from the Board to attend the Board for a hearing to be conducted on 1 August 2013, this being the first notice which the plaintiff received concerning the Appeal;

(f) on 31 July 2013 the plaintiff, by its solicitors, sought an adjournment of 14 days to allow its engineers time to respond to the allegations raised by the second defendant's engineer and to allow the plaintiff a reasonable opportunity to respond to the allegations and to prepare for the hearing;

Particulars

A copy of the letter is in the possession of the plaintiff's solicitors and may be inspected by appointment.

(g) by email sent and received on 31 July 2013, in response to the letter referred to above, the Board advised the plaintiff's solicitors that the request for an adjournment had been considered by the Chair of the Board and that "...as the matter is a Directions hearing it will be proceeding as scheduled and attendance of all parties is required";

Particulars

A copy of the email is in the possession of the plaintiff's solicitors and may be inspected by appointment.

(h) further, on 31 July 2013, Ms Marija Caruana-Smith, solicitor at Giannakopoulos Solicitors, had a telephone conversation with Ms Katelyn Dolman, Senior Appeals Officer of the Board, and was informed to the effect that the matter was only proceeding as a directions hearing and that the plaintiff would not need to have any witnesses present;

(i) on 1 August 2013 the Board conducted a hearing (the "1 August Hearing"), at which time the Board advised the plaintiff that it intended to either:

(i) direct the plaintiff to immediately stop all building works on site; or

(ii) direct the third defendant to issue a Building order to Stop Work on the plaintiff;

(j) at the 1 August Hearing the plaintiff:

(i) requested that the Board not make such an order until such time as the plaintiff had an opportunity to provide expert reports addressing any concerns which the Board had; and

(ii) requested that the Board advise the plaintiff of the basis of its concerns regarding the site so that it could respond;

(k) in response to these requests the Board advised the plaintiff that:

(i) the Decision was 'not negotiable';

(ii) the Board would provide a written statement of reasons.

(l) on 2 August 2013 at approximately 4.26 pm the Board served the Decision on the plaintiff's solicitors with reasons;

1. Further, in relying on section 88(1) of the Building Act 1993 (Vic) as a basis for the making of the Decision, the Board erred in law, and/or exceeded its jurisdiction, in that:

(a) section 88(1) provides that protection work to which a protection works notice is required must not be carried out before any of the matters listed in sections (a)-(c);

(b) the protection work to which the protection works notice in the present case relates was:

(i) confined to soil remediation works along the eastern boundary of the site; and

(ii) carried out and completed by the builder in late March/early April 2013;

(c) the building works on site as at 1 August 2013 were at an advanced stage, with the 3-storey concrete structure fully completed in accordance with all engineering designs and relevant approvals;

(d) the Decision is directed to all building works on site, which presently refers to the following works, inter alia;

(i) completion of framing and trusses;

(ii) installing the roof and roof plumbing;

(iii) plumbing rough-in;

(iv) electrical and data cabling rough-in;

(v) installation of furring channels, stud work and plasterboard linings; and

(vi) installation of windows and doors.

(e) future works scheduled for the following months include:

(i) painting and tiling;

(ii) completing fit-out, including architraves, skirting and internal doors;

(iii) installing and commissioning of the lift;

(iv) fitting off and commissioning of electrical, hydraulic and mechanical services;

(v) render, installing stairways and balcony and stair balustrade; and

(vi) landscaping;

(f) none of the building works presently conducted on site, or the future works to be conducted on site, relate to any protection work under the protection works notice which is the subject of the Appeal.

1. Further, the Decision was so unreasonable that no reasonable tribunal could have reached it.

18 There is no question that the Board is bound by the rules of natural justice, both at common law and by statute. Section 15(3)(c) of Schedule 3 to the Act expressly provides that the Board is bound by the rules of natural justice.

19 The uncontradicted evidence relied upon by Valorne, as summarised in paragraph 1 of its grounds of appeal, demonstrates that, in making the stop work order, the Board's conduct amounted to a breach of the rules of natural justice. The stop work order had, if not set aside, quite significant economic consequences for Valorne and its contractors and sub-contractors. To make the stop work order with little effective notice to Valorne, based upon evidence not able to be identified and tested by Valorne, and providing Valorne with no real opportunity to be heard amounted to a breach of the obligations of procedural fairness which warrant quashing the stop work order. On that basis, there is no need to consider the other grounds relied upon by Valorne at paragraphs 2 and 3 of its amended originating motion.

20 The issue remains whether the Board's conduct was so egregious that it is open for this Court to make an order for costs against the Board. It is settled authority that while the Court's wide discretion as to costs cannot be fettered, an order for costs will not ordinarily be made against an inferior court which has made an error of law save in extreme circumstances. In El Deeb v Magistrates' Court of South Australia,[2] the Full Court reviewed the authorities and stated:

What [the authorities] disclose is a well established practice not to award costs against a court whose decision is set aside by way of judicial review, merely on the basis that the court has erred. The cases indicate that an order for costs will be made if something like misconduct, corruption or perversity is established. Of course, these are only instances of the circumstances in which an order for costs will be made.

21 The issue was also considered by the Court of Appeal of this Court in The Magistrates' Court of Victoria at Heidelberg v Robinson and anor.[3] The Court reviewed in some detail the approach traditionally adopted by English and Australian courts to applications for costs against Justices or a Magistrates' Court. In summary, the relevant principles are as follows:

(a) if an inferior court chooses to participate in proceedings in order to defend its own decision and is unsuccessful, costs may be awarded against it;

(b) in other cases, only very rarely will an order for costs be appropriate;

(c) a Magistrate is not to be ordered to pay costs for acting on an erroneous view of the law, even though it is very plain that that view was wrong, unless the Magistrate has really chosen to ignore the law;

(d) in order to be liable for costs, there must be some element of perversity, impropriety, misconduct, or gross ignorance; and

(e) serious impropriety or misconduct can include a failure to observe a fundamental principle of justice, notwithstanding they were ignorant of that principle. A distinction might be drawn between rules of substantive law and the fundamental rules of natural justice. As stated by Brooking JA:[4]

The superior court may be prepared to regard even "an astonishing blunder" in a matter of substantive law as not exhibiting "gross ignorance" in necessary sense and in the absence of "perversity" may decline to make an order for costs against the inferior court ... But when one is concerned, not with some "ordinary" rule of substantive law, but with the fundamental principles concerning procedural fairness or natural justice, the inferior court may be held not to be excused by its own ignorance ...

But in saying this I do not wish to suggest that a mere blunder should attract an award of costs: the approach should still be benign, or reasonably so, where a bona fide mistake has been made.

22 That the principles referred to above apply equally to statutory tribunals is apparent from the findings of the Court of Appeal in Psychologists Registration Board v HWT.[5] In this matter, the Court of Appeal confirmed that costs should only be awarded against a statutory tribunal which acts in excess of its powers where it can be demonstrated that the tribunal has been "guilty of serious misconduct or corruption or has acted perversely".[6]

23 These principles have been adopted by single judges of this Court in cases involving statutory tribunals, such as medical panels.[7]

24 Finally, the most recent occasion when an award for costs was made against an inferior court was in Zukanovic v Magistrates' Court of Victoria at Moorabbin,[8] where J Forrest J ordered that the plaintiff's costs be paid by the Magistrates' Court on the basis that the Magistrates' conduct was perverse in laying and determining a contempt charge against a person in court "on the spot". His Honour found:[9]

It is tolerably clear that once the Magistrate perceived an arguable slight on the Court's authority he made up his mind as to how to deal with Mr Zukanovic and chose to ignore essential aspects of procedural fairness.

His Honour made a deliberate decision to deal with Mr Zukanovic on the spot - this was not a mistake or an error of law; he was appalled by the conduct of Mr Zukanovic (whether another Magistrate or Judge would have been is not to the point.) It was imperative given that he was laying and determining a charge of contempt, that he exercised his judicial power fairly and properly. He failed to do this.

25 Therefore, it can be seen from the authorities that a failure of a court or tribunal to observe fundamental principles of procedural fairness, whether in ignorance or otherwise, may amount to conduct which is of a "perverse" character, in the legal sense, notwithstanding that the conduct of itself may not amount to misconduct or impropriety. Accordingly, in the current case, the Court's discretion to make an order for costs against the Board is enlivened. The question is whether the Board's failure to accord natural justice in this case is so flagrant or egregious to warrant making an order for costs.

26 The Board led no evidence in relation to the making of the stop work order and the events leading up to that time. Accordingly, the evidence relied upon by Valorne, most of which was prepared in support of its application for interim or interlocutory relief before Judd J, is uncontested. The Board did rely upon an affidavit sworn by Ms Nafsika Sahinidis, the general counsel of the Victorian Building Authority, regarding the circumstances in which the Board learned of the application before Judd J, the instructions provided and approach taken by the Board in the hearing before Judd J, and the subsequent correspondence between the Board and Valorne in the lead up to the hearing of the proceeding. Counsel for the Board relied upon the authorities referred to in the paragraphs above, and submitted that the approach taken by the Board at the hearing before Judd J was entirely proper and appropriate, particularly in the absence of a proper contradictor. She submitted that, given the authorities' insistence that costs would only be awarded in the rarest of cases, the conduct of the Board did not warrant a finding of misconduct or perverse conduct.

27 I agree with the submissions of counsel for the Board that there was no ground for making an adverse order for costs against the Board on the basis of its conduct in the hearings before Judd J. True it was that on 5 August 2013 the solicitor appearing on behalf of the Board indicated that the Board opposed the relief sought by Valorne, necessitating an adjournment of the hearing to the following day. However, that was in circumstances where the Board's solicitor was sent to court in the middle of the afternoon, having had little notice of the application, a very limited period of time to review the extensive material filed by Valorne, and barely any opportunity to seek instructions. The next day, counsel briefed by the Board, Mr Niall SC, informed the Court that the Board would not take an active role in the application, and would abide by the outcome of the application, save that counsel was available to assist the Court in relation to the relevant statutory framework and factual background. I agree that the Board's approach in that regard was entirely proper.

28 However, in my view the conduct of the Board in the period leading up to the making of the stop work order amounted to a wilful disregard of the fundamental principles of natural justice, such that the making of a costs order in Valorne's favour is warranted. The uncontested evidence is that there was not one isolated act or error that could be excused, but rather a series of events which, taken alone and as a whole, amounted to a flagrant breach of natural justice. It is apparent from the evidence of Mr Flanagan that the members of the Board were aware at the 18 July 2013 hearing that a necessary party, that is Valorne, was not in attendance. The members then went on their own evidence gathering exercise, without notice to Valorne. It is apparent from the evidence of Valorne's solicitor, Ms CaruanaSmith that the Board, by the hearing on 1 August 2013, had already made up their mind in relation to the stop work order, and effectively denied Valorne the opportunity to make any submissions regarding whether the stop work order was either warranted or even open to the Board to make, noting that this did not appear to be a course of action being pressed by Mrs Cerantola or her engineer. The Board members would have been aware, following their inspection of the site, of the scale of the development on the site and the potentially severe consequences of making the stop work order. However, they did not allow Valorne a reasonable period of time, or in fact any time at all, to put evidence before the Board regarding the necessity and appropriateness of making the stop work order. In short, the Board's conduct was high handed and draconian.

29 Valorne was faced with no real practical alternative but to come to Court. Not only did it have to come to Court, but it also had to, in a very short period of time, gather together a substantial body of evidence, including expert evidence, in order to satisfy the Court that interim relief ought to be granted. It should not be unduly out of pocket in that regard.

30 Accordingly, I will order that the Board pay Valorne's costs of the proceeding, on a standard basis, up to and including the hearing on 6 August 2013.

31 Paragraph 3A of the Amended Originating Motion seeks declarations that:

(a) the plaintiff's Protection Works Notice under section 84 of the Building Act 2994 was served on the second defendant on about 7 March 2013;

(b) the second defendant did not within 14 days of service of the Protection Works Notice give the plaintiff any response to the Protection Works Notice, as required under s 85(1) of the Building Act 1993;

(c) pursuant to s 85(2) of the Building Act 1993, the second defendant is deemed to have agreed to the proposed protection work described in the Protection Works Notice; and

(d) accordingly, there was no basis for any appeal to the First Defendant.

32 It is correct to say that Mrs Cerantola's Protection Works Response notice was defective, in that it did not provide reasons why she opposed the proposed protection works. Also, s 88 of the Act is somewhat ambiguous in its terms. Section 88(1) provides as follows:

Work not to be carried out until protection requirements met

(1) An owner who is required by the building regulations to carry out protection work in respect of an adjoining property must not carry out any building work giving rise to that requirement until -

(a) the adjoining owner agrees or is deemed to agree to the protection work; or

(b) the matter is determined by the relevant building surveyor under this Part; or

(c) in the case of an appeal to the Building Appeals Board in relation to the matter, the matter is determined by the Building Appeals Board.

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

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

33 It is not entirely clear from the above section whether an owner may carry out protective works provided that the relevant building surveyor had determined they were appropriate, notwithstanding that the period in which the adjoining owner might lodge an appeal had not yet expired. In the current case, Mr Flanagan informed Mrs Cerantola on 21 March 2013 that her response notice was defective, and gave her until 27 March 2013 to provide her reasons for opposing the proposed works. On 27 March 2013, solicitors instructed by Mrs Cerantola, Best Hooper, wrote to Mr Flanagan. The letter included the following:

Our client has a number of concerns about the works proposed in the most recent notice dated 7 March 2013. We confirm the advice in our client's email to you dated 21 March 2013 that she disagrees with those proposed works. We will respond on our client's behalf once she has had an opportunity to consider her position.

Given the Easter weekend, we will endeavour to respond by Friday 5 April 2013.

34 On 28 March 2013 Mr Flanagan responded as follows:

As you are aware, the amended protection notices were served on your client on 7th March 2013. A signed response (Form 4) was received via fax on 21st March, disagreeing with the proposed (amended) protection works. That response, however, did not provide any reasons as to why the adjoining owner disagreed with the protection works and it was considered incomplete/inappropriate. In fairness, a further 6 days was afforded to your client to provide reasons why they disagreed with the works. Notwithstanding your letter of the 27th March 2013, no reasons for disagreeing with the proposed protection works have been received in this office by the COB Wednesday 27th March 2013.

Despite your request for a further extension in time to the 29th March 2013 I have to advise that in accordance with Section 87 of the Building Act, I have determined these protection works appropriate.

I advise that the period for an appeal to the Building Appeals Board against this decision is 14 (fourteen) days as prescribed under Regulation 1601.

35 Notwithstanding the reference in the letter above to the period for an appeal to the Board being fourteen days, on 1 April 2013 he advised the builder that the protection works were appropriate, and the works were carried out between 2 April and 5 April. Mrs Cerantola lodged her appeal with the Board on 5 April 2013, that is, well within fourteen days of 28 March 2013.

36 Mrs Cerantola opposed Valorne's application for relief, primarily on the basis that she believed the protection works carried out on this occasion and on previous occasions were inadequate, and that she was aggrieved with the conduct of Valorne and its contractors generally. She did not address me on the legal merits of the application for a declaration. The Board's position was that it would abide by the decision of the Court.

37 In my view, while there is indeed a strongly arguable case that Mrs Cerantola should be deemed to have accepted the protection works ("the deemed acceptance"), there are, in the current case, good reasons not to exercise the Court's discretion to make declarations in the current case. First, the Board has reserved its decision, and may well decide in favour of Valorne, such that any declaration would be of no utility. Secondly, based upon the evidence before me, it seems to me that there is at least an argument that the protection works should not have proceeded in the fourteen days following the letter of Mr Flanagan to Best Hooper of 28 March 2013 refusing an extension of time and notifying Best Hooper of his determination that the protection works were appropriate. The recipient of that letter would no doubt be under the reasonable apprehension that the works would not proceed prior to the expiry of the appeal period. In those circumstances, the conduct of Mr Flanagan in informing the builder on 1 April 2013 that the works could proceed seems somewhat high handed, particularly in circumstances where he was aware that Mrs Cerantola opposed the works, albeit for unspecified reasons. Finally, although the evidence does not seem to be quite up to the mark, and I have not had the benefit of argument on the matter, there could be some argument that by not raising the question of the validity of the appeal until submissions were presented to the Board at the appeal, Valorne may be found to have waived any right to rely upon the deemed acceptance, or be estopped by relying upon the deemed acceptance.

38 Accordingly, while I would not shut Valorne out from pursuing this relief at a later time, if the matter goes beyond the current hearing at the Board, I am not disposed to make the declarations sought by the Board on this occasion.

[1] see paragraph 6.3 of Practice Note No 4 of 2009.

[2] [1999] SASC 113.

[3] [2000] VSCA 198; (2000) 2 VR 233.

[5] [2000] VSCA 118, at [11], and the authorities cited there.

[7] Ripper v Kotzman [2008] VSC 448, and Smith v Lloyd and ors (No 2) [2007] VSC 436.

[8] [2011] VSC 160.