2 The proceeding is amended so as to add an application for review of the respondent's refusal of a claim for the rectification of dry rot at the applicant's property at 11 Sutherland Road, Armadale, as sought in a request dated 10 December 2003 from Yarrayea Grove Pty Ltd, trading as Master Menders on behalf of the applicant.

3 Adjourned to directions hearing 9.30 am. 29 April 2004.

Mr M. Settle, Counsel instructed by McMahon Fearnley

Mr R. Powell, Counsel instructed by Nadia Plantamura, Legal Officer for the respondent.

1 On 4 November 2002 Ms Siddalls filed an application in the Tribunal seeking review of the rejection of her claim with respect to alleged defects in extension work carried on 11 Sutherland Road, Armadale. On 4 August 2001 Ms Siddalls and her husband Stuart Weir bought the property at 11 Sutherland Road at auction from Anthony and Catherine Seaholme. The house was a single fronted brick residence constructed almost a century before and renovated in 1996 by Mr Rod Allen trading as Rod Allen Constructions. Mr Allen is now said to be insolvent.

2 Ms Siddalls and Mr Weir commissioned a report into the state of the house from Archicentre which delivered a report dated 27 December 2001. This report identified a number of problems and defects in the property. Subsequently Mr Weir and Ms Siddalls commissioned a further report, this time from Mr Setford of Coghlan Lorich who delivered a report dated 8 May 2002. On the basis of those reports they lodged a claim with the respondent, Housing Guarantee Fund Limited which administers a Government funded indemnity scheme to cover insurance liabilities originally written by insolvent members of the HIH and FAI group of companies. In a letter dated 8 November 2002 HGF rejected the claim leading to the commencement of the present proceedings. HGF had appointed Mr James Campbell of Building Assist who inspected the property on 27 September 2002 and prepared the report which led to the rejection of the claim.

3 The matter was fixed for mediation on 20 February 2003. That mediation was adjourned to enable Ms Siddalls and Mr Weir to locate a copy of the original building contract. The contract was not located until May 2003. Meanwhile an organisation known as `Master Menders' had given a quotation for the completion of remedial work in the sum of $49,940.

My wife and I were concerned about the cost of the proceedings and on our own behalf attempted to negotiate a settlement. We eventually agreed to an order striking out our application.

5 On 25 July 2003 Deputy President Professor Cremean made an order by consent:

This proceeding is struck out with a right to apply for reinstatement.

This order had been made as a consequence of a letter written by Rigby Cooke, Lawyers, acting for Housing Guarantee Fund which stated:

I confirm my instructions that the HGF will consent to your application being struck out with no order as to costs but on the basis that no future claim be made against HGF in relation to the items comprising your present application.

6 Rigby Cooke wrote to the Registrar of the Tribunal in a letter dated 30 July 2003. They referred to the consent order made 25 July 2003 and continued:

HGF consented to the application being struck out with no orders as to costs. It did not consent to the right of reply for reinstatement.

We ask that the order be amended to reflect the parties' intend.

7 I have been told that this letter was not copied to Ms Siddalls. On 1 August 2003 Deputy President Cremean ordered:

2. This proceeding is struck out with no order as to costs.

8 Ms Siddalls and Mr Weir then asked `Master Menders' to carry out the repairs for which they had quoted. Mr Weir says that on 10 December 2003:

I received an urgent call from Rob Simpson, Principal of Master Menders. Mr Simpson told me and I verily believe that on them having opened up the floor to the rear extension they had discovered that serious defects existed in the construction of the sub-floor and that the required remedial work would need to be far more extensive (and costly) than originally envisaged. In particular they had discovered the presence of significant dry rot that would necessitate the lifting, inspection and remediation of the entire rear extension floor.

Master Menders provided a report addressed to Housing Guarantee Fund Limited dated 10 December 2003 which reported:

We found ... excessive moisture and the presence of dry rot Serpula lacrymans.

J.D. Thornton of the CSIRO in Melbourne has done extensive research on the development and control of this fungi, and has stressed that urgent and extreme measures need be taken to halt it's (sic) growth.

We have seen Serpula lacrymans reduce brand new timber to pulp within several weeks.

9 Mr Weir says that HGF has declined to reconsider the matter and regards it as closed by the order made 1 July 2003.

10 Ms Siddalls applied for the reinstatement of the matter and the application came on before Senior Member Robert Davis on 10 February. On that day Mr Davis made orders for the filing of affidavits and statements of legal contentions.

11 The matter came on for hearing before me on 31 March 2004.

12 Mr Settle, Counsel for Ms Siddalls submitted that this proceeding should be reinstated to enable Ms Siddalls to prosecute a claim for HGF to rectify the dry rot.

13 He stressed that Ms Siddalls did not have the advantage of legal representation but that HGF did and was in any event a `professional litigant'. He submitted that the HGF letter which was evidence of the settlement which the parties reached was ambiguous in so far as it used the terms `items comprising your present application' and the expression `future claim'. Mr Settle submitted that in the circumstances described the contra proferentem rule applied against HGF. He submitted that the dry rot which is the serious problem now identified should not be regarded as being within the description `items comprising your present application' nor he submitted should the reinstatement of the present application be regarded as a `future claim'. He gave an example of a form of release which HGF could have employed but which it failed to use. He referred to Section 10 of the Domestic Buildings Act which he submitted in any event constrained the form of release which HGF could obtain in the circumstances.

14 Mr Settle said that even if contrary to his primary submission this matter was to be regarded as having been `struck out' rather than withdrawn, then Ms Siddalls should be regarded as having withdrawn the proceeding, HGF's letter could have employed the language from Section 74 of the Victorian Civil and Administrative Tribunal Act 1998 which provides for withdrawals of proceedings and prohibits the making of a further application `in relation to the same facts and circumstances' without leave. This phrase he said could have been employed by HGF.

15 According to Mr Settle, the claim which his client now wished to propound was `a pending claim and not a future claim'. He said that when a proceeding is struck out it nevertheless remains a pending proceeding. He referred to the statement of Warren CJ (as she now is) in Tanska v Transport Accident Commission [2000] VSC 56, 16 to this effect.

16 In reply Mr Settle submitted that the HGF's contention that the arrangement between the parties in the consent orders extinguished the applicant's claim was not consistent with the order which merely struck the claim out.

17 He submitted that any reliance by the HGF upon the doctrines of res judicata, issue estoppel or functus officio was misconceived and that those doctrines were irrelevant.

18 Mr Powell, Counsel for the housing Guarantee Fund opposed the application to reinstate. He referred to the original application made by Ms Siddalls which stated the following grounds:

(1) An extension to our property was undertaken by the builder in 1996-7 at the request of the former owners.

(2) The claim is for failing to comply with the architectural drawings and Building Code when completing the work.

(3) The builder did not provide proper drainage or ventilation to the sub-floor in the new extension.

(4) The southern boundary wall is not fit for retaining purposes.

(5) Dampness as a result of the defects has caused damage to the extension floor.

19 He referred to paragraphs 11 and 12 of the complaints specified in the Tribunal application which were as follows:

11 Significant damp problems in new eastern extension identified as per Archicentre report (copy attached).

Inadequate building materials in south boundary wall.

12 Further confirmation of drainage problems as per Coghlan Lorich report (copy attached).

20 Mr Powell referred also to paragraphs 12, 13, 15 and 19.1 of the Coghlan Lorich (Buildspect Report) which paragraphs are as follows:

12 On inspecting the exterior of the recent addition I found that the adjoining ground to the south was built up some 300 - 450mm above the internal floor level. This is evidenced and can be seen in photographs 3 and 4. Due to the built-up ground, no sub-floor ventilation for the base of the new south floor was possible and a subsequent area of dead air in the sub-floor has been created.

12 Further viewing of the exterior of the building, I found that sub-floor ventilation was very poor and well below that required by Building Code of Australia, which would have required as a minimum, 600mm2 of ventilation per metre run of wall, however due to the dead air pocket, the ventilation should have been increased by at least 50 percent. Current ventilation across the rear wall of the living room can be seen in photograph 3, where only one metal sub-floor ventilator was sited.

15 On viewing the sub-floor area of the meals/living room, I found that the sub-floor soil was saturated, also very little clearance was presence, see paragraph 6 and 7. The heating bats are also contributing to blocking the poor ventilation which currently exists. Note: on the original drawing TP1, a section through the meals area showed what appears to be fill between the walls with a concrete infill slab floor, however the as built is concrete stumps, timber bearers and joists and jarrah strip floor.

19.1 The sub-floor ventilation must be immediately increased at both the original residence and the recent addition. At the visible areas of the original building it would be prudent to install period type cast iron ventilators, perhaps at approximately 1.2m spacing in the front (east and north wall). In the light court area along the south wall, pressed metal galvanised sub-floor ventilators can be installed if preferred. At the recent addition, kitchen/meals/living, I would recommend that slimline ventilators be installed at approximately 1m spacings. Due to the dead air in the sub-floor area along the south wall it is recommended that some mechanical assistance be given to providing radically improved air floor along the south wall. The most appropriate method in this situation would be to provide a 150mm P.V.C. shaft along the sub-floor area up past the roof guttering with a wind driven rotating cowl of exhause-type ventilator fitted to the top of the shaft. The most appropriate position for the mechanical shaft and cowl would be at the west end of the light court opposite the bathroom.

21 He referred to the following passages from the Archicentre report:

2 GROUND/PAVED LEVELS OUTSIDE ARE HIGHER THAN SUB-FLOOR GROUND LEVELS. THIS ALLOWS WATER TO SEEP AND POND UNDER THEIR HOUSE CAUSING DAMP RELATED DETERIORATION (CUPPED FLOORS). IT IS RECOMMENDED THAT EXTERIOR LEVELS BE LOWERED TO ALLOW WATER TO BE DIVERTED AROUND THE HOUSE.

6 SUB-FLOOR VENTILATION AT RATE OF 600MMX2 PER METRE RUN OF WALL REQUIRED.

8A HEATING DUCTS LAYING ON GROUND. RECOMMEND MIN 150MM CLEARANCE ABOVE GROUND - FOR AIR & WATER TO PASS THRU.

10 CROSS VENTILATION IS A REQUIREMENT - SHOULD BE A 600 X 600 OPENING TO ALL ROOMS UNDER THE DOORWAYS USUALLY.

13 FLOOR IS CUPPED - DUE TO MOISTURE IN SUB-FLOOR GROUND.

22 Mr Powell also noted that the Archicentre report referred to maintenance items being `damp', `framing', `regulations', `stumps/piers and timber rot'.

23 Against this background Mr Powell said that the arrangement which led to the consent orders constituted a binding agreement to settle the proceeding. HGF gave valuable consideration `namely its consent to the owner's application for orders striking out the proceeding, and its agreement to draw its own costs of the proceedings'. He said there was no uncertainty as to the meaning of the terms. Accordingly, the effect of the settlement agreement `is to extinguish any right that the owner may have had to have the proceeding reinstated, at least in so far as reinstatement is brought to allow the claims which were part of the original claim to continue to be prosecuted'. He said `it is not to the point ... that new facts have come to light, or that rectification costs are allegedly higher than initially envisaged by the owner.' He submitted that if an entirely new and separate defect has come to light `then the proper course for the owner to take is to make a further claim on the Fund in respect of that new defect.' He said in any event there was no new defect. The underlying defect was a lack of sub-floor clearance ventilation and inadequate drainage `the manifestation of those defects is: sub-floor moisture, damage to the floor boards, and dry rot, all of which conditions have been referred to in one or other or both of the owner's expert reports'. He referred to Williams Civil Procedure [23.01.140] where the learned author states with citation of authorities:

The court will grant a stay of a proceeding if the proceeding has been settled and the plaintiff, in breach of the terms of settlement, seeks to continue the proceeding.

24 Further, said Mr Powell, the agreement in itself created a res judicata. He referred to the decision of Gavan-Duffy J in Wells v D'Amico [1961] VicRp 103; [1961] VR 672. He said that the Tribunal's orders made 1 August 200 `themselves create a res judicata'. The Tribunal can only modify its decisions in certain defined circumstances set out in Section 119 and 120 of the Victorian Civil and Administrative Tribunal Act 1998 dealing effectively with what is known in Court as the `slip rule' and the reopening of determinations on substantive grounds where given in the absence of a party who has a reasonable excuse for not attending. Otherwise he said the Tribunal's powers to reopen an order are not ` "at large", so that, for instance, having set aside a decision under review on one day, the Tribunal (perhaps constituted by a different member) cannot subsequently affirm it on another. The same result must apply to orders made by consent, as consent orders can and do support a defence of res judicata.' He referred to a number of authorities.

25 He said the settlement also constituted an accord and satisfaction. He referred to the judgment of Dixon J (as he then was) in McDermott v Black [1940] HCA 4; (1940) 63 CLR 161, 183 where His Honour said:

`The essence of accord and satisfaction is the acceptance by the plaintiff of something in place of his cause of action. What he takes is a matter depending on his own consent or agreement.'

`If the agreement is to accept the promise in satisfaction, the discharge of the liability is immediate; if the performance, then there is no discharge unless and until the promise is performed.'

[1940] HCA 4; (1940) 63 CLR 161, 185

`The owner agreed to accept the Fund's consent to having the original proceeding struck out, and its promise to bear its own costs, in substitution for the owner's claims. In those circumstances, it is submitted, whatever liability the Fund may have had to the owner, arising out of her claim, was extinguished immediately upon the parties agreeing to enter into the settlement agreement.'

Alternatively he said if the settlement agreement was an accord executory, it became an accord in satisfaction once the order was made excluding the applicant from any liability for costs.

28 Finally, said Mr Powell, the Tribunal was functus officio. He conceded that generally a strike out in a proceeding would not render the Tribunal functus officio, Kataria v Gold Sea Pty Ltd [2003] VCAT 506; Smith v Hermitage Properties Pty Ltd [2003] VCAT 103, [17]. The Tribunal would be functus officio if a proceeding were dismissed or withdrawn. He submitted that effectively the owner withdrew her application and that she raised no objection to the removal of the ability to apply for reinstatement, hence the matter should be viewed objectively and there being no right of reinstatement `on 1 August 2003 the Tribunal became functus officio in relation to the proceeding'. He said even where liberty to reply was reserved a Court or Tribunal was functus officio except with regard to a matter involving or arising out of the working out of that order. He referred to the judgment of McLelland J in Phillips v Walsh (1990) 20 NSWLR 206, 209. He said:

`Where liberty to apply is granted in relation to a final order, it is limited to matters concerning the implement of the earlier order.'

He referred to a number of authorities. Finally, he said even if the Tribunal was not functus officio

`the orders that the Tribunal can nevertheless make are limited to orders concerning the implementation of the Tribunal's orders. The Tribunal is not at liberty to reinstate the proceeding, for to do so, would be to make an order which is substantially different to its orders made on 1 August 2003.'

29 In Tanska v Transport Accident Commission Warren J (as she then was) said:

The first matter to be considered is whether a proceeding once struck out can be reinstated. The striking out of a proceeding is a different matter to that where, for example, a proceeding is dismissed or a judgment is ordered. In the latter examples the matter has usually been determined on the merits and disposition has occurred. The general approach adopted by this court in considering the power to reinstate an action which has been struck out is to regard the power as part of the inherent jurisdiction of the court to be exercised where it thinks fit (see Mason v Ryan [1884] VicLawRp 115; (1883) 10 VLR (L) 335, 340; Miller v Hanson [1891] VicLawRp 135; (1891) 17 VLR 715, 716; Roberts v Gippsland Agricultural and Earthmoving Contracting Co Pty Ltd [1956] VicLawRp 86; [1956] VLR 555, 565). More recently Kaye J in R. v McGowan & Anor [1984] VicRp 78; [1984] VR 1000 at 2004 adopted the approach that it is only possible to terminate an action by judgment or discontinuance but that an action which is struck out remains pending being a means convenient to the parties and the arrangements of court lists. On the basis of the authorities it was open, therefore, to the Master to order that the County Court proceeding be reinstated.

30 The order here, whether in its original or amended form was one of strike out not of dismissal. The proceeding remained in existence as Her Honour's analysis quoted above shows. There is no question of functus officio. Nor given that a strike-out order is by its nature interlocutory and not final is there any question of there being some unfitting inconsistency in one member reinstating what another member has struck-out. Had Professor Cremean intended to terminate this proceeding, no doubt he would have dismissed it.

31 Nor is this order an order of withdrawal. This is not a case where liberty to apply has been reserved, therefore I believe no guidance can be found in the cases on a Court's authority to deal with matters pursuant to such a reservation.

32 I therefore put to one side and reject all arguments based on these matters.

33 The respondent seems on firmer ground in the reliance which it placed through its Counsel on the decision in Wells v D'Amico. In that case, a respondent's motor vehicle crashed into a shop damaging the structure and the stock. The complainant's solicitor commenced proceedings in the local Court of Petty Sessions but by mistake sued only for the damage to the stock and failed to claim for the damage to the building. An oral settlement was reached between solicitors acting for the parties but the complainant and his solicitor realised their error and declined to execute the terms of settlement or accept the tender of the amount claimed in the complaint, namely £65. They then issued a new complaint for the full amount of the damage, namely £118. Gavan Duffy J held that there had been an effective settlement of the first proceeding even without the execution of a deed of release and the settlement of that proceeding discharged the entire cause of action including any claim for damage to the building. It may seem paradoxical that the concept of res judicata (meaning a `res' adjudicated upon) could extend to a settlement where there is no adjudication at all; but His Honour's conclusion appears to be supported by a dictum of Lord Fitzgerald in Darley Main Colliery Limited v Mitchell (1886) 11 App Cas 127, 149. More pertinently in the famous and controversial case of Brunsden v Humphrey (1884) 14 QBD 141. The English Court of Appeal held that a settlement of a claim for property damage to a cab involved in a traffic accident did not operate as an adjudication and therefore release of any claim for personal injury to the cabman sustained in the same accident. The settlement was arrived at by the cabman taking money paid in to the County Court. There was no judgment of the Court. Counsel for the cabman, Waddy QC had submitted that the doctrine of res judicata could not operate because there had been no judicial determination (1884) 14 QBD 141, 143. Both the majority of the Court, Sir Baliol Brett MR and Bowen LJ and Lord Coleridge CJ in dissent assumed that the doctrine of res judicata would apply as long as the claim for the personal injury damage was the same cause of action as the claim for property damage. The majority held that it was not. Lord Coleridge was of opinion that it was.

34 The question then is whether the claim which the applicant now seeks to press for the cost of rectifying dry rot is the same `cause of action' which was the subject of the settlement and the orders made by Professor Cremean.

35 These sorts of issues have proven perplexing. In Brunsden v Humphrey over a century ago, the English Court of Appeal was divided. The majority held that the claim for property damage to the cab was not the same cause of action as the cabman's claim for personal injuries. In dissent Lord Coleridge asked if this meant that a person injured in a traffic accident had separate causes of action for injuries to a limb on the one hand and to the clothing which covered that limb on the other hand. Over a century later the Victorian Court of Appeal reached a similar conclusion to the one which the majority of the English Court of Appeal reached in Brunsden v Humphrey but by a different route. In Linsley v Petrie [1998] 1 VR 427 following a motor accident Ms Petrie was injured and her car was damaged. Exercising a right of subrogation Ms Petrie's insurer sued Linsley for damages for negligence inflicting property damage. A magistrate held that Linsley had not been guilty of any negligence. When damages for personal injury were brought in the Court it was contended on behalf of Linsley that there was an issue estoppel with regard to the Magistrate's determination on negligence and the claim against him for personal injuries must fail. Two of the judges Hayne JA and Smith AJA held that the two causes of action were not the same because of differing standards of care. The third Judge, Callaway JA held that it would be unconscientious to allow Linsley to take advantage of the estoppel effectively imposed upon Ms Petrie by the equitable right of subrogation exercised by her insurer. His Honour was doubtful as to the primary reasons adopted by the other two judges. Smith AJA said that the question as to whether the same parties were involved in the proceeding was one of substance and since in truth the Magistrates Court proceedings were controlled by the insurer the parties were not the same. Hayne JA (as His Honour then was) specifically disagreed with this view of things.

36 The situation here is even more complex. The present proceeding was one which seeks a review of an insurer's determination under a policy of insurance issued pursuant to the terms of the Building Act in an approved gazetted form. The proceeding is not in the form of ordinary common law inter partes litigation. Again, in Brunsden v Humphrey; Linsley v Petrie and D'Amico v Wells the various claims all arose out of damage occurring in the same traffic accident. Here, the initial claim and the claim now sought to be propounded manifestly arise out the same building contract between Ms Siddalls' predecessor, the Seaholmes and the now insolvent builder. It is clear however from the form of insurance policy that it is contemplated that there may be successive claims for different defects so long as those claims relate to the relevant building contract and are brought within the appropriate period and fall under the total insurance cap. It may well be that the present situation rather more closely resembles a claim under a statutory compensation scheme such as that established by the Transport Accident Act 1986 than it does an ordinary common law proceeding.

37 In Transport Accident Commission v Dafopoulos [1997] 2 VR 232 the Court of Appeal considered the ability of a person injured in a transport accident in December 1991 to make a claim for compensation for an injury which manifested itself for the first time in October or November 1992. The Transport Accident Act 1986 in Section 68 at that time provided that a claim for compensation had to be made within one year `if the injury did not manifest itself at the time of the accident, after the injury first manifested itself'. The applicant admittedly had suffered injuries which manifested themselves at the time of the accident but elected to make no claim for compensation with regard to them. The Transport Accident Commission took the view that once any injury had manifested itself the one year time limit commenced to run and having expired in December 1992 it was not competent for the applicant to make an initial claim for compensation in June 1993. Phillips JA accepted the Commission's submission. Tadgell JA held that the claim for compensation was competent. He said:

Suppose, for example, that a victim of a motor car accident suffers a stout blow to a lower leg, producing no more by way of manifestation of injury and instance severe pain, which dissipates within days, and bruising which lasts for no more than a few weeks. Injury of that kind, while appreciable and perhaps even severe, would not merit compensation under the Act (save any reasonable costs of medical services in excess of the threshold prescribed by S.43(1)(b)) if it did not result in loss of earnings of the victim for more than five working days after the accident and did not produce any measurable impairment. The subsequent loss of the lower leg from supervening osteomyelitis attributable to the blow, the disease first manifesting itself more than a year after the accident, would prima facie be compensable under the Act. Whether the osteomyelitis were a discrete injury would presumably be a question of fact. If it were a discrete injury, I can see no reason why a valid claim for compensation for the result of it should not be made within a year after express manifestation, even if no claim has been made within a year following the accident in respect of the initial pain and bruising. If the osteomyelitis were not, as a mater of fact, a discrete injury, which result might be compensatable under the Act even if a claim made within one year of the happening of the accident had not mentioned it but had merely claimed for pain and bruising. It was conceded for the applicant that the original claims might in those circumstances be treated as covering the more serious condition.

[1997] 2 VR 232, 236-7

38 Tadgell JA therefore held that the compensation claim was competent. Ormiston JA was dubious - but with some hesitation concurred with Tadgell JA.

39 It is clear from the nature of the underlying insurance policy that there can be separate and distinct or to use the language adopted by Tadgell JA in Dafopolous `discrete' claims with regard to different defects in the insured building. In my view if the claim for dry rot can be regarded as a `discrete' claim separate from the initial claim then for the purposes of the application of the doctrine of res judicata the claim for dry rot would not be regarded as `the same cause of action' as the initial claim. Tadgell JA clearly conceived that the onset of osteomyelitis coming from the same traumatic blow as caused pain and bruising could be a discrete injury. Osteomyelitis might or might not result from the `stout blow' referred to by His Honour. Similarly dry rot might or might not result from the ventilation and dampness problems which were the subject of the initial claim. In my view the dry rot represents a new and separate or `discrete' defect. It comes from the same underlying cause but nevertheless represents a further and distinct stage in the same way as the osteomyelitis in the example given by Tadgell JA did. I do not accept that the references in the Archicentre report identified by Mr Powell mentioning timber rot as a `maintenance' item constitute the identification of the present major dry rot problem described by Master Menders. The Archicentre report defines maintenance item as `any items of repair which is common to homes of similarly age or types of construction and as described in the Home Maintenance Guide including decorative features and finishes.' I take that definition to identify maintenance items as in effect matters of fair wear and tear. Nor does the fact that the Archicentre report attaches a series of standard form commentaries on a number of common building issues amount to the inclusion in the original claim even if one regards the Archicentre report as having been incorporated y reference thereinto of a claim for dry rot.

40 In my view accepting that the doctrine of res judicata can apply in Tribunal proceedings, Lambidis v Commissioner of Police (1995) 37 NSWLR 320. The doctrine does not operate to bar reinstatement in the present circumstances.

41 For the same reasons the doctrine of accord and satisfaction represents no bar either. The accord and satisfaction, assuming that one operated here, operated with regard to the subject matter of the original claim not with regard to the dry rot claim.

42 I accept Mr Powell's submission that there was a binding settlement agreement evidenced principally by the correspondence from Rigby Cooke on behalf of HGF. HGF gave consideration in agreeing to a concession that there be no order as to costs in the proceeding. Given that there is a general presumption against the award of costs as between party and party, in accordance with Section 109(1) of the Victorian Civil and Administrative Tribunal Act 1998 this was a fairly slender concession. Nevertheless, I accept Mr Powell's submission that it was more than merely nominal consideration. Nevertheless, the settlement agreement extended only to the items comprised in the initial application not to the dry rot. Accordingly, it matters not whether the prosecution in the Tribunal of a claim for rectification or compensation for the dry rot is characterised as a `future claim' or not since it does not relate to the items in the settlement agreement it is not barred by the settlement.

43 It follows that I reject the grounds urged by the Fund in opposition to an order for reinstatement but a problem remains. The logic of the case which I have accepted is that what is now being pursued is a new and separate claim from the one which was the foundation of the present proceeding. Mr Powell submitted, as I have already noted, that the appropriate course for an applicant in these circumstances to follow is to file a new and separate proceeding to review the new and separate insurers determination. Mr Settle offered no explanation as to why his client had elected to seek to reinstate the present proceeding rather than commencing a new one. He specifically denied that this was a strategy to avoid some mandatory time limit for instance. The question then is, is it competent to amend this proceeding upon reinstatement so that it will comprehend the new issue now sought to be agitated. In Stolfa v Transport Accident Commission (1997) 12 VAR 343 I concluded for the reasons which I there gave that the power to regulate its own procedure granted to the former Administrative Appeals Victoria in the State of Victoria by Section 35 of the Administrative Appeals Tribunal Act 1984 authorised that Tribunal to amend a review proceeding so as to have it extend to a new and separate determination for review despite that new determination having been made after the date of the commencement of the proceeding. In my view Section 98 of the Victorian Civil and Administrative Tribunal Act 1998 which is materially the same effect as Section 35 of the 1984 Act would authorise this Tribunal to do the same as the old Administrative Appeals Tribunal could do in Stolfa. The point is perhaps clearer in this Tribunal than it was in the former Tribunal because the Victorian Civil and Administrative Tribunal Act 1998, Section 127 gives this Tribunal a general power to amend documents. In my view, it is appropriate that I should make an order amending the application in the present proceeding to reinstate it without such amendments would be pointless.

44 I will adjourn this matter to a further directions hearing to enable directions to be given as to its future progress. It will be a matter for the member dealing with the final hearing to confine the proceeding to the dry rot and not re-open the items already settled.

45 I have heard no submissions as to costs and so I will reserve them.