RESPONDENT Patrick Volpe and Maria Volpe (Subject Land owners)

BEFORE Members H Hodges (panel chair) and P Paras

CITATION Reich & Anor v Volpe & Anor [2025] VBAB 99

Having considered all the submissions and information placed before it, the Building Appeals Board (BAB) determines pursuant to s 161 of the Building Act 1993 (the Act), that:

1. Within 30 days from the date of this Determination the Respondents must pay the sum of $2,012.50 to the Applicants.
2. Pursuant to sch 3, cl 16(3) to the Act, liberty to apply on the question of costs, subject to such liberty being exercised within 14 days from the date of this determination/these determinations.[1]

_____________________ ________________________

1. The Applicants are the owners of 62 Campbell Street, Kew. (Adjoining Property).
2. The Respondents are the owners of 60 Campbell Street, Kew. (Building Site).
3. On 7 September 2024, the relevant building surveyor determined that protection work was required for the Adjoining Property due to the construction of a double storey dwelling with proposed brick wall to be built near eastern boundary within zone of influence of neighbouring land.
4. On 5 October 2024 the Respondents served a protection work notice (Form 7) together with documentation. The protection work was described as:

footings and bored piers (location as per drawings attached along with this documentation) will be dug with supervision at all times close to the western boundary of property 62 with a 200mm distance away from the boundary, to ensure the safety and structural integrity of current fence and your assets. the current fence will not need to be removed and will be structurally enforced during and throughout the construction to ensure safety to all, we will not need to access your property for this purpose of construction, and security will also be supervised daily to ensure access to construction site are controlled and logged again enhancing the safety of adjoining properties. After piers and footings been completed, a 110mm AFS wall with concrete core fill will be constructed following, and exposed section above the existing boundary fence will be rendered. All construction work will be conducted or supervised by a registered builder as approved and shown on the building permit. Again not require access into your property and proper dust control with water spray will be in place.

1. On 11 October 2024 the Adjoining Owners engaged an engineer, Mr Genitsaris, to review the protection work and provide advice on same. Mr Genitsaris provided four reports at a total cost of $6,825.
2. The Applicants sought payment of the engineering costs from the Respondents less the $2,100 already paid, being a total of $4,725.
3. Additional matters were raised by the parties such as a dilapidation report, insurance required under s 93 of the Building Act 1993 (Act) and payment of future supervision of the carrying out of protection work. We are unable to deal with these matters in a proceeding referred under s 155.
4. On 19 June 2025 we held an e-hearing with the attendance of all parties.

1. The following section of the Act is relevant to a consideration of this dispute:

(1) The owner must pay to the adjoining owner all costs and expenses necessarily incurred by the adjoining owner in assessing proposed protection work and in supervising the carrying out of protection work in respect of the adjoining property and -

(a) agreed between the adjoining owner and the owner; or

(b) in the absence of an agreement, determined by the Building Appeals Board under Part 10.

(2) The costs and expenses of an adjoining owner which are agreed or determined may be recovered in a court of competent jurisdiction as a debt due to the adjoining owner.

1. The Applicants have provided the following information:

(a) On 12 October 2024 the Applicants provided a copy of the quotation for the work and sought payment from the Respondents.

(b) On 14 October 2024 the Respondents provided an email response but did not agree to make payment for the invoice.

(c) On 17 November 2024 the Adjoining Owners served the first report of the Engineer together with the Form 8 requesting more information for the proposed protection work. A second and third report were later generated and shared with the Respondents on 19 November 2024.

(d) On 19 November 2024 the Respondents indicated a disagreement with the Engineer's costs. The Adjoining Owners responded to the Respondents confirming the requirements of s 97 of the Building Act 1993 (Act).

(e) On 9 December 2024 the relevant building surveyor made a Form 9 Determination pursuant to s 87 of the Act.

(f) On 20 December 2024 the Applicants sent a Fourth report from the engineer to the Respondents. The Applicants further requested $2,100 and a further amount of $4,725 which had not been paid.

(g) On 13 January 2025 the Applicants requested the engineer distinguish costs of assessing protection work from other fees and costs for other matters. The engineer provided a response on the same date confirming all work was related to assessing proposed protection work.

(h) On 29 January 2025 the Respondents offered $2,100 to settle the costs claimed by the Applicants.

(i) On 30 January 2025 the Respondents paid $2,100 to the Adjoining Owners. Accordingly, the Applicants now seek the remaining amount of $4,725.

1. At the hearing, evidence from their Engineer was given regarding the costs incurred for assessing the protection work.
2. The Applicant provided a letter dated 11 October 2024 which confirms the rate per hour of $350 and request for initial 6 hour work deposit for $2,100 with no GST added.
3. An invoice dated 20 December 2024 was also filed in the proceeding, which states it is for 'Engineer's consultation regarding proposed protection works'. The invoice covers all reports up to and including Report 4 from 20 December 2024. The cost of these works was $6,825, less the first paid invoice of $2,100, leaving a total of $4,725.

1. The Respondents made the following submissions:

(a) The reimbursement of protection work notice only becomes due and payable once a registered building surveyor has made a Form 9 Determination.[2] The Respondents rely on the VBA Protection Work Statement 2018.

(b) The Form 9 Determination was made on 9 December 2024.

(c) The Respondents note the Invoice dated 20 December 2024 seeks payment of 19.5 hours at $350 per hour. The Respondents say only 4.3 hours properly relate to assessing protection work and 15.2 hours relate to other work (site visits not undertaken 3 hrs, Report 1 & 2, for 4.3 hours non-protection work, Report 3 - boundary/legal title matters not protection work matters for 1.25 hours and Report 4: post-Determination reporting 6.6 hours not eligible to claim from owner).

(d) The Respondents paid 6 hours which they say is in excess of the 4.3 hours they consider necessary and reasonable. The balance of $4,750 is disputed.

(e) The following table is what the Respondent's consider necessary and reasonable. Further, the Respondents' engineer confirmed the hours dedicated to assessing protection work and which were not:

(f) In the email dated 13 January 2025 the engineer confirmed that all work as noted in the invoices related to assessing the proposed protection work. However, he noted that comments relating to overlooking did not include nay research.

(g) The Gencon report deals with non-protection work related matters including:

(i) Overlooking/privacy screens

(ii) Boundary encroachment

(iii) Drainage systems

(iv) Structural design assessments

(v) Other planning and building works matter outside the Form 7.

(h) The Respondents believe that the costs are outside of market benchmarking and that the hourly charge out rate should be $250.

(i) The Respondents have also included a more detailed table of works that they consider to be non-protection work related matters and reasons for same.

(j) The Applicants made payment without agreement permitted by s 97 of the Building Act 1993 (Act).

(k) The Respondents state the site visit did not occur and it should not have taken 3 hours. Further, no permission was provided to enter their property.

(l) The submissions of the Applicants do not reconcile with Report 1 from the engineer Mr Genitsaris.

(m) The document size referred to by Mr Genitsaris was for overlooking rather than protection work assessment.

(n) The Respondents' engineer provided a report in which he provided examples regarding the work items performed or material sought by the Applicants' engineer which was not required for assessing protection work. This included the following:

(i) a complete set of architectural drawings is not required.

(ii) the engineering drawing notes on drawing no 10 were unrelated to protection work. However, a typographical error was rectified.

(iii) a site inspection was undertaken and updated structural drawings were provided to show the detail of the existing brick wall and proposed structural footing. Piers were introduced to accommodate the angle of repose. Further, a site inspection was conducted and footing probe completed on the boundary steel fence. Piers were introduced to accommodate the angle of repose. The engineer was of the view no underpinning was required for the steel fence footing.

(iv) The engineer formed the view that some of the request of levels of the land and information on the fence footing depth was not reasonably practical. The existing steel fence footing depth is provided on the updated structural drawing, and the existing brick retaining wall footing is much lower than proposed structure footing.

(v) The north (front) of the structure has had additional piers with shallow strip footing adopted into the updated design to accommodate the engineer's concerns. The proposed design is sufficient to control and mitigate the risk of damage to the boundary brick fence footing.

(vi) Current stormwater drainage design complies with the BCA performance requirements.

(vii) Overlooking and setback are not part of protection work.

(viii) Dilapidation and insurance are not part of the Form 7 an 8 process.

(ix) The retaining wall beside retaining wall/fence has had a site inspection and footing probe completed at the boundary of the colour bond steel fence. Updated structural drawings show detail between the existing brick wall and the proposed structure footing. Piers have bene introduce to accommodate the angle of repose.

(x) Update structural drawings show the details between the existing fence and the proposed structure footing. Piers have been introduced to accommodate the angle of repose.

1. The Respondents noted the following in relation to the expert engineer's fees:

(a) The market guide of $250 per hour at 4 hours should have been sufficient for reasonably incurred fees.

(b) The reasonable hours incurred by Mr Genitsaris would be 4.35 hours.

(c) The owners have paid 6 hours at $350 per hour.

(d) The hours calculated by the Respondents deducted the following:

(i) Report 4 had 6.6 hours billed after the Form 9 Determination which were not for assessing protection work.

(ii) Report 3 had 1.25 hours billed outside protection work definition

(iii) Reports 1 & 2 had client consultations, 50% of which were attributed to non-protection work allowed by owner. Accordingly, 4.3 hours should be removed.

(iv) Invoiced site visit not performed on owner's property.

(v) The owners have deducted procedural administration matters such as comments on Form 6 and 7 service, demand for full architectural drawings, request for full structural set, comment on general note in drawings, request for land levels and re-establishment survey/boundary, drainage items, overlooking or setback issues, debris and concrete spill protection, dilapidation report, insurance, reviewing land survey, Report 4 includes 6.6 hours after Form 9 Determination was not challenged.

APPLICANTS' SUBMISSIONS IN RESPONSE (in summary form)

1. The Applicants provided the following information:

(a) The protection work costs were necessarily incurred.

(b) The Applicants deny the Form 9 limited the ability to challenge the scope of the protection work.

(c) The reports were all necessary to assess the protection work

(d) The Applicants do not accept the market benchmarking put forward by the Respondents.

(e) The Applicants required a professional opinion of a qualified engineer. There is nothing in the engineer's invoice which suggests it is not necessarily incurred in assessing the adequacy of proposed protection work. The engineer had to spend more time due to the inadequate material and need to revise protection work.

1. It is apparent in the materials that the following is in dispute:

(a) Whether the Applicants were required under s 97 of the Act to attempt to obtain the Respondents' agreement on costs or seek several quotations for assessing protection work.

(b) Whether the costs incurred by the expert were necessarily incurred in accordance with the requirements of s 97 of the Act.

Whether the Applicants were required to attempt to obtain agreement on costs or seek several quotations prior to arranging an expert opinion

1. The Board has previously considered this question in the decision in Yu & Anor v Pantazopoulos & Anor[3] .
2. We accept and adopt the statutory construction outlined in this prior decision of the Board and note it is consistent with other Boad determinations.[4]
   1. In my view, s 97(1) of the Act has a 'chapeau' which outlines the ability to claim for costs necessarily incurred in assessing protection work. Section 97 then provides two options as to how the costs can be fixed, and these are set out in ss 97(1)(a) and 97(1)(b). Neither of the options under ss 97(1)(a) or 97(1)(b) can be read without the context of the chapeau which provides a general right for those costs of assessing protection work to be paid by the 'owner', conditional on those costs being necessarily incurred.
   2. I note the use of the conjunction 'or' between the two provisions of ss 97(1)(a) and 97(1)(b) suggests that there are two options by which costs necessarily incurred for assessing protection work can be determined, that is by either agreement or a determination of the Board.
   3. I do not consider that 97(1)(a) means the owner's agreement is required prior to the adjoining owner incurring the costs. The owner may agree or not agree to the costs, in whole or in part, that the adjoining owner says they have necessarily incurred assessing protection work. If no such agreement can be reached as to the costs to be reimbursed, the owner or adjoining owner has the option under 97(1)(b) to request that the Board determine those costs.
   4. There is no wording contained in s 97 of the Act that the adjoining owner would need to apply to the owner for prior agreement of future costs expenditure by providing costs estimates, scope of works or proposed methodologies for agreement of prospective costs.
   5. I consider this view is supported by the explanatory memorandum for the Building (Further Amendment) Bill 1997 which amended s 97 of the Act to include the assessment of protection work as a cost which must be paid by the owner to the adjoining owner. The explanatory memorandum explains under clause 10 that this amendment was included within the Act:

...to allow for the expenses of an adjoining owner incurred in assessing proposed protection work to be re-imbursed.

1. The explanatory memorandum reflects the use of the past tense and states the expense is to be reimbursed. This phrasing would suggest the preferred approach is to reimburse costs owing or paid rather than likely prospective costs. This reflects the wording within the primary provision itself, that is, that "costs necessarily incurred" (emphasis added). Both section 97 of the Act and the explanatory memorandum refer to a cost in the past tense suggesting that the adjoining owner must have already accrued the cost. It does not relate to prospective costs.
2. I acknowledge that a party could still provide information such as cost agreements, scope of works or costs estimates to assist the parties in reaching an agreement once the costs are properly incurred and known. However, it would not appear to be a requirement to trigger the adjoining owner's entitlement to cost reimbursement under the compensatory provision as outlined under s 97 of the Act. There is nothing precluding the use of such documents as evidence of whether the costs were necessarily incurred if an assessment of the costs is required to be undertaken if the party wishes to provide them, however it is not mandatory.
3. From a practical perspective, it might not always be feasible to produce prospective costs documents and obtain agreement given the time frames within which an adjoining owner is required to engage necessary experts for assessment of protection work and return the Form 8. Further, this method would also prevent underpayment or overpayment of an adjoining owner's costs based only on an estimate.[5]
4. Based on the wording of section 97 of the Act and the explanatory memorandum to this provision of the Act, we consider that there is no requirement for an Adjoining Owner to obtain or attempt to obtain an agreement on prospective costs for assessing the protection work. The language of the Act suggests that the costs are necessarily incurred which is in the past tense and indicative that it is retrospective in operation.
5. We confirm the Act rather than any VBA statement is the primary consideration for the BAB. On our view of the VBA statement, there is limited information other than the sections of the Act regarding the seeking of compensation pursuant to s 97 of the Act. In the main, the document discusses the substance of the Form 7, Form 8 and Form 9 process rather than compensation process.
6. We are also fortified in this belief by the alternative option under s 97(b) of the Act referencing an order from the Board if it cannot be agreed on what costs were necessarily incurred between the Building Site Owner and Adjoining Owner. It is highly unlikely that an Adjoining Owner could obtain an order from the BAB for prospective costs and obtain an expert opinion within the 14-day period to return the Form 8.

Whether the costs incurred by the expert were necessarily incurred in accordance with the requirements of s 97 of the Act

1. Section 97 of the Act permits the reimbursement of costs necessarily incurred for assessing protection work. The Act defines protection work as follows:

(a) permanent or temporary work of -

(i) underpinning, including the provision of vertical support, lateral support, protection against variation in earth pressures, provision of ground anchors and other support for adjoining property; or

(ii) shoring up of adjoining property; or

(iii) overhead protection for adjoining property; or

(iv) other work designed to maintain the stability of adjoining property or to protect adjoining property from damage from building work; or

(b) any work or use of equipment necessary for the provision, maintenance and removal of work referred to in paragraph (a) -

1. The term protection work is clearly defined and relates to the technical or construction aspects of the protection work to prevent loss or damage to the adjoining property.
2. We note the Building Appeals Board decision in K.S.J.A.D Nominees Pty Ltd v Goubran & Ors[6] has outlined how the phrase 'necessarily incurred' should be interpreted. The case noted that:

30. ......The Macquarie Concise Dictionary defines the word necessarily as:

1. by or of necessity; 2. as a necessary result.

1. that cannot be dispensed with; 2. happening or existing by necessity; 3. acting or proceeding from compulsion or necessity; not free; involuntary...

1. Moreover, it does not adopt the phrase in connection with [the assessment of proposed protection work], which might have given it wider application if that was intended. That distinguishes s 97 from other provisions such as s 98 of the Building Act, which do incorporate the phrase in connection with.

1. The question whether costs and expenses claimed under s 97(1)(b) have been necessarily incurred is, ultimately, a finding of fact. Therefore, the onus rests on an adjoining owner to establish, on the balance of probabilities, that the cost or expense claimed was necessarily incurred.
2. The case of Leahy v Railway[7] also made the following observations regarding s 97(1):

... to establish a successful claim for costs of assessing protection work, the Board must be satisfied of the following:

(a) The claim must be for assessing the protection work and not extraneous matters.

(b) The costs must be necessarily incurred not relate to speculative future costs.

(c) The costs were required to achieve the function of assessing the protection works.

1. It is our view that necessarily in the context of assessing the costs incurred would include costs that were required to assess the protection work and the costs incurred were required to achieve the function of assessing protection work. This approach is consistent with prior determinations of the Board.[8]
2. Accordingly, we now turn our attention to the costs claimed in the invoice rendered by Mr Genitsaris. We have placed into a table each item from the invoice with commentary on each item and whether we consider it necessarily incurred for assessing the proposed protection work.
3. First, we have reviewed the $350 hourly rate of Mr Genitsaris. Based on the known industry rates for experienced engineers and engineers that provide advice in relation to the assessment of protection work, we consider this rate is reasonable and within the range of market rates charged. We have also noted that GST has not been charged.
4. Second, we have assessed the invoice number B241001a dated 20 December 2024 which provides an itemised description of service and time spent for each of the items.
5. We have listed our consideration of the items and time fractions claimed and encapsulated our findings in the table below:

Lines 1 to 3 are considered to have been time spent for engineering services provided for the review of proposed PW, initially proposed as part of the Form 7 and documents which accompanied the Form 7; We note that Invoice B241001 dated 11/11/24 states "initial fee as quoted 6hrs @$350/hr" and $2,100 was charged. We therefore consider that the time spent for these 3 lines, being 6.5hrs, is for the services quoted for the amount of $2,100, noting however that Invoice B241001a, dated 20/12/24, indicates 6.5hrs;

We further note that Engineering Report 1 included advice in relation to non-protection work items and that we consider that 3 hours for travel and time on the adjoining property site would be at an upper limit. Based on the above, we accept the amount of $2,100 that was quoted based on 6.0hrs (but 6.5 hrs were spent) to be reasonable. We also note that this amount has been paid by the Respondent.

We accept that services by Mr Genitsaris would have been required to review the response from the Respondent's Architect and Engineer, and that 0.75 hours is reasonable.

In general, we accept that additional assessment of proposed Protection Work following the issue of ER1, and therefore costs incurred, would have been required, additional to the initial assessment, covered by Engineering Report 1.

A total of 1.4 hours has been charged for consultation with the client at this stage, presumably to discuss the response received to Engineering Report 1 and for the preparation of Engineering Report 2. Based on the response and the content of Engineering Report 2, we do not consider it reasonable that 1.4 hours is required for discussions with the client (Applicants) in relation to the assessment of proposed protection work. Instead, we consider that 0.75hrs is a reasonable amount of time to discuss matters in relation to the assessment of proposed PW.

We accept that a second report (ER2) was required to be prepared, based on the response to ER1, and we accept that 3.0hrs is reasonable for the preparation of Engineering Report 2. This would have required time to review the response to ER1 and further updated documents and a new Form 7.

19 November 2024 report 3 (ER3) & consult with client

We consider it reasonable that 1.25 was taken for review of the further response, preparation of Engineering Report 3, and consultation with client. We note that structural drawings were amended and issued at this stage, to include the piers at the boundary between the two sites.

As the Form 9 was issued on 9/12/24, we consider that the period for assessing proposed protection work has, in principle, ceased and assessment or review of proposed Protection Work is fundamentally for the purpose of any appeal which may be actioned. Therefore, we do not consider that the preparation of Engineering Report 4 is part of the assessing proposed protection work.

18 December 2024 View determination and documents

11.75@ $350 = $4,112.50, less $2,100 already paid, balance owed = $2,012.50

1. We note our commentary regarding the costs incurred after the Form 9 determination. Section 97 of the Act provides compensation for costs necessarily incurred in assessing "proposed protection work". Under s 87 of the Act the Form 9 is then a determination as to the appropriateness of the proposed protection work. If the Form 9 determines the proposed protection work is appropriate, it is approved by the relevant building surveyor unless an appeal is lodged, and a determination of the BAB overrules it.
2. In taking into account the overarching process under the Act, we do not consider that the protection work can be deemed 'proposed' after the rendering of a Form 9 determination. We consider that other wording within s 97 of the Act supports such a finding given the additional compensation which can be claimed is for "...supervising the carrying out of protection work in respect of the adjoining property...". Similarly, s 98 of the Act also refers to protection work rather than proposed protection work. The Act clearly makes a distinction between proposed protection work for which costs of assessment which can be claimed, and the supervision of protection work for which compensation can be claimed. We consider this use of language of the Act was deliberate and purposeful. Based on the wording of the Act, we form the opinion that once the proposed protection work is agreed or determined by Form 9 that it is no longer 'proposed' and simply becomes 'protection work'.
3. Given this, we consider that regard to the date of the Form 9 determination should be had to determine whether the costs incurred were necessarily incurred for assessing proposed protection work as opposed to considering the Form 9 determination. Whilst we accept that a review of the Form 9 would be advisable to understand if the proposed protection work was deemed appropriate or not appropriate, the Act does not allow this to be reimbursed as a cost of assessing proposed protection work. Given this, we cannot award the costs of this report.
4. The comments in the above table are to indicate what costs we consider have been necessarily incurred pursuant to s 97 of the Act. As noted previously in this determination, this finding is ultimately a finding of fact by the BAB based on its technical knowledge and experience in this area.
5. Our findings which reduce some of the costs does not mean that the engineer, Mr Genitsaris, has improperly billed the Applicants. The BAB notes that there is often advice required by adjoining property owners which does not fall within the assessment of proposed protection work - but is nonetheless advice which is required to wholistically advise on the protection work process. For example, insurance and a dilapidation survey are part of the protection work process, but they do not fall within the ambit of assessing the proposed protection work itself as defined by the Act or as outlined in the Form 7. Further, an adjoining owner may disagree with the Form 9 determination and consider an appeal. In some circumstances, it may be remiss of the engineer to fail to provide certain advice whether or not it falls within s 97 of the Act.
6. We consider that there are items and time fractions which, whilst certainly useful for the Applicants to receive advice or discussion on, were not necessarily incurred for the assessment of proposed protection work. That is, the work was not, in our view, wholly or in part necessarily incurred to achieve the function of assessing the proposed protection work. This was the reason we have decreased the time fractions claimed.
7. We will make a determination consistent with our findings.

[1] Clause 17 of Schedule 3 to the Building Act 1993 provides: 'Unless the Building Appeals Board otherwise determines, a party to a proceeding before the Board must bear his, her or its own costs'.

[2] See paragraph 12.5 of the Respondents' Statement of Defense

[4] See for example; Maniatis & Anor v Mitchell [2022] VBAB 94

[5] Yu & Anor v Pantazopoulos & Anor [2023] BAB 71.

[8] See for example Maniatis & Anor v Mitchell [2022] VBAB 94.