Victorian Civil and Administrative Tribunal Act 1998 sections 3, 75, 80, 94, 109,117, and Schedule 3 - Victorian Civil and Administrative Tribunal Rules 2018 rules 4.32(4) and (5) - Oaths and Affirmations Act 2018 section 23 - Oaths and Affirmations (Affidavits, Statutory Declarations and Certifications) Regulations 2018 regulation 7.

Home Office v Harman [1983] 1 AC 280 - Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] VicRp 54; [1996] 2 VR 34 - Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 110 ALR 685.

Practice Note PNBP1 "Building and Property List (building disputes) - General Procedures".

Respondent's application under section 75 of the Victorian Civil and Administrative Tribunal Act 1998

Singh v Singh Homes Pty Ltd (Building and Property) [2025] VCAT 248

1. The applicants' filing of the Further Amended Points of Claim on 3 February 2025 is hereby validated. Leave to file that document is granted. Any applicable time limit is extended to 4 February 2025.
2. The respondent's application under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 for orders striking out that the applicants' Amended Statement of Claim and Further Amended Statement of Claim is dismissed.
3. The respondent's application under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 for orders striking out the experts report by Rene White on the letterhead Houspect, dated 3 June 2024 and filed on 3 February 2025 as an Exhibit to the Further Amended Points of Claim filed 3 February 2025 is dismissed.
4. By 31 March 2025, the respondent may file with the Tribunal and serve on the applicants a request for further and better particulars of the Further Amended Points of Claim.
5. By 11 April 2025, the applicants shall file with the Tribunal and serve on the respondent further and better particulars pursuant to any request served by the respondent under paragraph 4.
6. Any dispute as to the validity of a request, or the sufficiency of the further particulars, served under paragraphs 4 or 5 shall be determined by the Tribunal. Any party seeking such a determination shall complete and file an Application for Directions Hearing or Orders seeking the determination, no later than 25 April 2025. The Application must specify the aspects of the request or response which require determination, and contain a copy of the letter requiring the opposing party to remedy the asserted defect which was sent before the Application for Directions Hearing or Orders was filed.
7. The date by which the respondent must file and serve Points of Defence to the Further Amended Points of Claim, under paragraph 2(a) of the Order made 11 December 2024 is not extended and remains 23 May 2025.
8. The date by which the respondent may file and serve Points of Counterclaim, under paragraph 2(b) of the Order made 11 December 2024 is not extended and remains 23 May 2025.
9. The date by which the respondent must file and serve its expert's report, under paragraph 2(c) of the Order made 11 December 2024 is not extended and remains 23 May 2025.
10. The date by which the applicants must file and serve any Reply / Points of Defence to Counterclaim, under paragraph 4 of the Order made 11 December 2024 is not extended and remains 6 June 2025.
11. This paragraph replaces paragraph 5 of the Order made 11 December 2024. By 6 June 2025 each party shall file with the Tribunal and serve on their opponent a List of Documents, listing -

(a) in Part 1 of Schedule 1, all documents in the party's possession, custody or power, relating to the questions in this proceeding;

(b) in Part 2 of Schedule 1, those documents relating to the questions in this proceeding which the party objects to produce for inspection on the ground of privilege, and the basis upon which privilege is claimed; and

(c) in Schedule 2, documents relating to the questions in this proceeding which the party has had, but no longer has, in its possession, custody or power, and as to each such document when it was last in the party's possession, custody or power and the party's belief as to what has become of it_._

A document "relates to the questions in this proceeding" if it is a document on which the party relies; that adversely affect the party's own case; that adversely affect another party's case; or that support another party's case.

1. Consistently with paragraph 5 of the Order made 11 December 2024, by 13 June 2025 each party shall supply to their opponent a copy of any document listed in Part 1 of Schedule 1 of its List of Documents. Alternatively, upon having been given reasonable notice of the wish to inspect, each party shall permit their opponent to inspect a document in Part 1 of Schedule 1 of its List of Documents and then supply a copy of any such document on request, by 13 June 2025.
2. The mediation remains listed at 9:30am on 18 June 2025, and paragraphs 6 - 8 of the Order made 11 December 2024 are confirmed.
3. Costs reserved.

1. The respondent's interlocutory application gives rise to an "interim order", as defined in section 3 of the Victorian Civil and Administrative Tribunal Act 1998 ("VCAT Act"), and section 117 of the VCAT Act does not require the Tribunal to give reasons for an interim order. When VCAT is not required to give reasons, the provision of reasons that do not reveal the path of reasoning does not even constitute an error of law.[1]
2. It is appropriate, though, that reasons be given in relation to the respondent's interlocutory application.
3. The next significant scheduled steps in the proceeding are that the respondent must file and serve Points of Defence and its expert report by 23 May 2025, and that the parties must attend a mediation on 18 June 2025. The applicants said on the Application for Directions Hearing or Orders dated 4 February 2025 (the "Form") that the application was urgent because of those impending dates. The Tribunal listed the application for hearing on 17 March 2025. In view of the current backlogs and pressures on the Tribunal, this period of some six weeks between initiation and hearing is as short as the Tribunal was able to achieve. The Tribunal did not make directions, under section 80 of the VCAT Act, for the filing and service of documents relevant to the interlocutory application. The Tribunal is empowered to do so, but it is very draining on resources for the Tribunal to have to make a bespoke Order each time an interlocutory application is filed.
4. Allowing a few days for the respondent to serve the Form and supporting documents on the applicants, the parties had around five weeks to file the relevant material with the Tribunal.
5. The Tribunal has long operated with relatively few procedural rules of the kind which apply in the Courts. It has done so to support its flexibility, given the very broad range of cases with which it deals, both in the sense of the degree of complexity of the issues and the amounts of damages which are sought. The Tribunal does not have a procedural rule requiring parties to file and serve their material in support, or in opposition, to an interlocutory application a certain number of days before the hearing.
6. As the Tribunal increasingly receives documents from parties filed electronically, and the Tribunal itself moves towards adoption of a digital case management system, it is apparent that it will have to set time limits for the filing of material in relation to interlocutory applications. In my observation, in the Building and Property List in particular, a practice has grown amongst legal practitioners to file voluminous quantities of documents very shortly before an interlocutory hearing. In the absence of a formal Rule, a Practice Note or an Order which sets a time limit, this late filing of documents does not amount to a breach of an obligation.
7. The difficulty that this causes the Tribunal is that the registry is unable to cope with the receipt of large numbers of documents shortly before hearings. Section 109(1) of the VCAT Act provides that costs do not follow the event, so the Tribunal lacks an easily used power to incentivise legal practitioners to file and serve documents in a timely manner. If the Tribunal were to adjourn interlocutory hearings on the basis that documents were filed very late, it would simply compound the problem of backlogs confronting the Tribunal and cause parties to incur additional legal costs which may not be compensable under section 109. If the Tribunal refused to consider documents filed late - when the filing was not a breach of an obligation - it would likely be told that it had made an error of law, particularly towards a self-represented party. So, the current "design" of the Tribunal, as expressed in the VCAT Act puts it in a very difficult position.

1. The respondent is a builder. The applicants say that they entered a contract with the respondent, for it to build a new single storey dwelling for them in Truganina for $459,513.88, of which they had paid $413,544.49 by the time the respondent terminated the building contract.
2. Both sides have been represented by legal practitioners throughout this VCAT proceeding, which the applicant issued in May 2024 after the parties had participated in a conciliation conducted by DBDRV.
3. In the Form the respondent sought orders that "the applicants' pleadings and expert report be struck out".
4. The grounds of the application, stated in the Form, were that:

the applicants' Amended Statement of Claim and Further Amended Statement of Claim do not comply with the Orders made 11 December 2024, or Practice Note PNBP1 (and)

the applicants' expert report filed on 24 January 2025 does not comply with the Orders made 11 December 2024, or Practice Note PNBP1.

1. The Tribunal's power to strike out pleadings lies in section 75(1) of the VCAT Act_._ That power extends to striking out "part of a proceeding", and those words may mean that the Tribunal can strike out the applicants' experts report. Perhaps more accurately, the Tribunal's obligations and powers under sections 80, 97 and 98 of the VCAT Act extend to enabling the Tribunal to rule that information can be inadmissible as evidence. Clause 8(1) of Schedule 3 to the VCAT Act, which applies under section 94 and which gives the Tribunal considerable power and discretion in relation to expert evidence, provides that the Schedule does not limit any power of the Tribunal set out in other legislation.
2. The applicants oppose the respondent's application.
3. There is a degree to which the respondent's application is symptomatic of "scorched earth policy" tactics which seems to be increasing in litigation in the Building and Property List. The applicants submitted that the application was little more than a delaying tactic or one designed to cause the applicants to incur costs. However, the respondent's Counsel submitted that its application was essential to enhance the prospects of the proceeding being resolved before reaching a lengthy and expensive final hearing. I gained the impression that the interlocutory application was initiated by the respondent's solicitors without Counsel's input, but I may be speculating. Clearly the parties' solicitors take different views of sections 97 and 98(1)(d) of the VCAT Act.

1. The effect of rules 4.32(4) and (5) of the Victorian Civil and Administrative Tribunal Rules 2018 is that documents filed after 4:00pm on a weekday are deemed to be filed the next day on which the registry is open. If the Tribunal sets a date by which a document is to be served, a document served after 4:00pm on a weekday is deemed to be filed the next day on which the registry is open. The Tribunal had not set a timetable for the filing of documents relating to this interlocutory application.
2. By the commencement of the hearing, the following documents had been filed electronically and served in relation to the application:

(a) from previous filings, the Tribunal had the applicants' original Points of Claim dated 10 May 2024 [214 pages, including attachments], Amended Points of Claim filed 28 January 2025 [169 pages, including attachments] and Further Amended Points of Claim filed 3 February 2025 [200 pages, including attachments].

Each iteration of the Points of Claim referred to its annexures as "Exhibits". For example, paragraph 3 of the original Points of Claim pleaded the existence of the building contract between the parties, and Exhibit A was a copy of the contract, on numbered pages A1-59. In paragraphs 12 - 17 of the original Points of Claim the applicants pleaded that they had obtained a "private inspection report" in March 2024 which listed defective and incomplete building works. In paragraphs 16 the applicants pleaded that this report was a "non-VCAT compliant report" and in the hearing before me the applicants' legal practitioner said that the applicants had obtained this report in order to prepare their claim and were not intending to rely on it in the litigation. They were only intending to rely on a "VCAT compliant report". This private inspection report is Exhibit E to the original Points of Claim and was said to have numbered pages E1-82. A perusal of Exhibit E shows that it was prepared by Mr Jesse Wronski and that it is set out under the letterhead "Darbecca". Unusually[2], in paragraph 22 of the original Points of Claim the applicants pleaded that they intended to instruct Mr Wronski, who they said was an expert witness within the meaning of section 3 of the VCAT Act, to convert the private report into a VCAT compliant report.

The first 12 pages of the Amended Points of Claim filed 28 January 2025 is the entire text of the original Points of Claim (without its Exhibits), all of which is crossed out in red. On page 13 the Amended Points of Claim dated 24 January 2025 follows. It has 14 pages and is then followed by its Exhibits. Its Exhibit A is the building contract. On my perusal of the document, the Darbecca / Wronski report is not exhibited. However, Exhibit L to this document is a report by Rene White on the letterhead Houspect, dated 3 June 2024. Its page numbers are L1 - L53.

The first 12 pages of the Further Amended Points of Claim filed 3 February 2025 is also the entire text of the original Points of Claim (without its Exhibits), all of which is crossed out in red. Pages 13 to 26 is the entire text of the Amended Points of Claim (without its Exhibits), all of which is crossed out in red. Commencing on page 27 and ending on page 44 is the Further Amended Points of Claim dated 3 February 2025, followed by its exhibits. Again, its exhibit A is a copy of the building contract. The Darbecca / Wronski report is not exhibited. However, its Exhibit L is the same report by Rene White on the letterhead Houspect, dated 3 June 2024. Its page numbers are L1 - L53.

Broadly speaking, the style of the Further Amended Points of Claim is to contain allegations: [paragraphs 1 - 3] of the existence of the building contract and the contract price; [paragraph 4] significant terms of the contract, for example those relating to variations, suspension of works, termination of the contract pursuant to notice, and liquidated damages; [paragraphs 5] respondent's requests for variations and the alleged invalidity of those requests, alleged breaches of the contract, alleged invalidity of a notice of intention to terminate the contract served by the respondent, purported suspension of works by the respondent and the allegation that it was not entitled to suspend works and therefore that the respondent breached the contract, alleged repudiation of the contract by the respondent, delay, failure to complete, damages caused by delay, alleged defective and incomplete works (in respect of which the pleading adopts some content of the report by Rene White), and the prayer for relief.

(b) affidavit of Isabella Griffin, legal practitioner for the respondent, sworn 7 March 2025 in support of the interlocutory application, with a bundle exhibit of five pages.

(c) affidavit of Eimad Daniel, legal practitioner for the applicants, sworn 17 March 2025. This was filed electronically at 5:12pm on 17 March 2025, and emailed to me by the registry at 8:35am on 18 March 2025. With exhibits this document is 70 pages in length.

(d) affidavit of Jamie Griffin, legal practitioner for the respondent, sworn 17 March 2025, in response to the affidavit of Eimad Daniel sworn 17 March 2025. This was filed electronically at 6:46pm on 17 March 2025, and emailed to me by the registry at 9:35am on 18 March 2025 - after the commencement of the hearing.

(e) two sets of submissions of the respondent, dealing with the applicants' pleadings and Mr White's report respectively, both dated 17 March 2025.

(f) applicants' outline of submissions, also filed electronically at 5:12pm on 17 March 2025, and emailed to me by the registry at 8:35am on 18 March 2025.

1. Neither party objected to the other party's material on the basis of late service.

1. Counsel for the respondent skilfully submitted that its application was warranted, if not brought about, by a concern to avoid costs being incurred unnecessarily in the proceeding; to avoid a scenario in a final hearing where the applicants changed their position, for example by their expert revealing a change of opinion which went to the issues of whether building works were defective, how defects could appropriately be rectified, and the quantum of the claim - after the parties had incurred significant expense in preparing for a final hearing on the applicants' "original version" of their expert's opinion; that because the applicants' Further Amended Points of Claim contained "extraneous material", the respondent was unsure whether it was required to plead to that material; and that the applicants' Further Amended Points of Claim did not properly particularise the alleged defects and incomplete work, or properly break down the alleged cost of rectification and completion. The Further Amended Points of Claim had been filed and served without leave.
2. The respondent also submitted that the expert's report of Rene White was deficient in a number of respects, and that his standing as an "expert" was highly questionable. The asserted deficiencies included that Mr White had adopted the opinion of another expert - apparently Mr Jesse Wronski - without explanation and instead of forming his own opinion on some matters. The respondent submitted that in relation to the allegations of defects and incomplete work, that Mr White's report was so lacking in detail that if the respondent engaged an expert on those matters, that expert would not be able to "reply". Thus the respondent is at risk of wasting money on obtaining an expert's report, which the applicants will cause to be deficient.
3. Counsel submitted that the respondent had appropriately put the applicants on notice of the various deficiencies, and given the applicants the opportunity to address them, only to find that the applicants refused to do so. The respondent had required the applicants to disclose the letter of instructions given to Rene White, and that letter had only recently been disclosed. The respondent is still uncertain of the documents, as distinct from the letter of instructions, given to Rene White. Counsel said that of course Rene White could be cross-examined about his report, and the various deficiencies, but that time spent on the hearing was expensive for all parties and that this was an undesirable course to adopt. The respondent submitted that the presence of the Darbecca report in the disclosed materials caused great uncertainty on the respondent's part.
4. As I indicated above, the substance of the applicants' submission in reply was that the respondent was engaging in pedantry for tactical reasons; that it was extraordinary for a builder who has engaged legal practitioners to assert that it "cannot understand" the claim brought against it in view of the very contents of the Further Amended Points of Claim and the informative Exhibits which obviously would have been disclosed to the respondent eventually in the process of discovery, but by being served with the pleading assisted the respondent; that the criticisms made by the respondent's legal practitioners in correspondence exhibited to Ms Griffin's affidavit were general in nature, rather than specific, and that any alleged uncertainty on the part of the respondent could be cured by the respondent serving a request for further particulars.
5. In reply, Counsel for the respondent submitted that a bad pleading cannot be cured by the provision of particulars.
6. Counsel for the respondent also "invited" the applicants to give an undertaking to the Tribunal that under no circumstances would they seek to amend their claim or their expert change his opinion, if the applicants persisted in their opposition to the interlocutory application. The respondent would hold the applicants to their undertaking, and if additional costs were incurred because the deficiencies in the applicants' pleading and expert's report prevented the case from being settled at mediation or caused the hearing to be protracted, the respondent would seek an appropriate order for costs.
7. Both sides cited passages from numerous cases in which Courts have referred to the function and desirability of pleadings. The passages cited largely "cancel each other out". For example, the respondent cited Singleton v East Gippsland Building Permits Pty Ltd [2023] VCAT 943, in which the Tribunal cited Croft J in Pizza Fellas Pty Ltd v Eat Now Pty Ltd [2017] VCAT 589 in which His Honour said that pleadings "give notice to the other party of one's case and thereby ensure procedural fairness" and that they aided efficiency. However, Croft J was sitting as a member of this Tribunal in Pizza Fellas , so his comments are not binding. Also, the passage cited by the respondent commences with Croft J saying that "VCAT is not a court of pleadings and thus the rules of pleadings need not be applied with the same vigour to proposed points of claim that come before VCAT".
8. The applicants cited cases, in VCAT and in Courts, in which those bodies had said that pleading summonses in VCAT were undesirable because they invited "excessive semantical debate"; that a party is entitled to know what case it must meet before the final hearing commences, but the opponent's case must not be outlined with "exquisite particularity"; that the onus was on the party who sought the striking out of their opponent's pleading to establish that the discretion to strike it out should be exercised; that a party who is unhappy with their opponent's pleading can request further particulars; and a colourful quote from a Western Australian court in which a judge noted that the plaintiff's claims in that building case were "(not) of a kind that are unfamiliar to any lawyer regularly practising in the construction area. None of them are exceptional. All of them are capable of clear enunciation and comprehension and appear to give rise to arguable causes of action. It seems to me, that only a lawyer interested in technical advantage, obfuscation and delay could feign ignorance of the substantive issues that emerge from that pleading in the case which has to be met". Quite.

1. Another indication of the respondent's approach to this litigation was to submit that the Tribunal should not have regard to the affidavit sworn by Mr Daniel, legal practitioner for the respondent, on 17 March 2025 because it was not an affidavit.
2. The asserted deficiency in the affidavit is that whilst it begins with the words, "I, Eimad Daniel of Level 40, 140 William Street, Melbourne in the State of Victoria, Solicitor, make oath and say as follows:", it lacks the words, above the jurat clause, "The contents of this affidavit are true and correct and I make it knowing that a person making a false affidavit may be prosecuted for the offence of perjury".
3. The "missing" text was said to be required by the Oaths and Affirmations Act 2018.
4. I spent some time considering this submission_._ Section 23 of that Act provides that "An affidavit may be in the prescribed form" (emphasis added), which, by Regulation 7 of the Oaths and Affirmations (Affidavits, Statutory Declarations and Certifications) Regulations 2018 is set out in Schedule 1 of those Regulations. That prescribed form contains the "missing" text.
5. The Oaths and Affirmations Act 2018 itself does not require the "missing" text to be included. Even if it did, section 29 of that Act provides that "An affidavit is not invalid merely because of an inadvertent non-compliance with a requirement imposed by this Part (of the Act) that does not materially affect the nature of the affidavit". So, if it was mandatory for the "missing" text to be included, subject to it being shown that the text was missing due to inadvertence, the affidavit would be valid.
6. Because it is not mandatory for Mr Daniel's affidavit to have been in the prescribed form of Schedule 1 the Oaths and Affirmations (Affidavits, Statutory Declarations and Certifications) Regulations 2018, the "missing" text is not actually missing, and the words at the beginning of the document - "make oath and say" - are sufficient to establish that the document is indeed an affidavit, when it is seen that the document has been executed in the manner required by sections 25 and 26 of the Oaths and Affirmations Act 2018.

(a) The "instructions/expert engagement letter" that Mr Daniel sent to Mr Rene White. Exhibit A to the affidavit is that letter and some related emails. As such, this part of the affidavit goes to the respondent's complaint that Mr White had not fully disclosed in his report the documents by which he was given instructions.

(b) The history of the applicants' filing and service of Mr White's expert report, the Amended Points of Claim and Further Amended Points of Claim. Mr Daniel said that when the Tribunal held its directions hearing on 11 December 2024, he asked for the opportunity to "re-file" Mr White's report, as he wasn't sure if it had been filed appropriately. Mr Daniel also says that after serving the Amended Points of Claim pursuant to the Order of 11 December 2024, he received an email from Ms Griffin in which she objected to that pleading and invited him to amend it, and that he filed and served the Further Amended Points of Claim. [Paragraph 11 of Ms Griffin's affidavit quotes her letter, including the invitation to further amend the pleading].

(c) The respondent's omission to serve a request for further particulars of the applicants' pleadings, and Mr Daniel's assertion that the respondent had not raised any concerns or objections to Mr White's report dated 3 June 2024 until 24 January 2025, including at the directions hearing 11 December 2024.

1. That last point relates to the applicants' submission that the respondent, objectively, understands the case it must meet. In the written submissions of the applicants, dated 17 March 2025, Mr Daniel expands on this point, in a section headed, "The (respondent) builder is aware of the defects and incomplete building works and comprehends the overall claims made against it which it is required to meet".
2. In paragraph 9 of the submissions Mr Daniel wrote that on 4 March 2025 the respondent filed an experts report by "James Wilson of Built Access in the County Court of Victoria (which) was produced in response to the (applicants') VCAT compliant report which was also filed at the County Court".
3. The "VCAT compliant report" is the report of Mr White. Whilst the assertion of fact in paragraph 9 of the submissions is not stated in an affidavit, and the report of Mr Wilson has not been exhibited or otherwise place before the Tribunal, the more curious aspect of the submission is the reference to the County Court. In the hearing before me Mr Daniel revealed that there are defamation proceedings on foot between the parties in the County Court. Neither side disclosed which party was the plaintiff in the proceeding. The respondent has not filed an affidavit, in relation to this interlocutory application, referring to the report of Mr Wilson.

1. The respondent objected to the Tribunal taking into account in any respect the report of Mr Wilson, as to do so would be a breach of the Harman undertaking. As should be apparent from the above, the only information before me is that such a report exists. I have no idea of the contents. Mr Daniel's purpose in referring to it is to meet the respondent's submission that it cannot understand the case that it must meet.
2. The "Harman undertaking", which has that name because its source is the decision of the House of Lords in Home Office v Harman [1983] 1 AC 280, can be summarised as the implied undertaking by the party who receives documents in the process of discovery that it will not use any documents or information received except for the purposes of the litigation in which the documents were disclosed. In Home Office v Harman a legal practitioner had received documents in discovery, and had disclosed them to a journalist.
3. In Mobil Oil Australia Ltd v Guina Developments Pty Ltd[3] the Victorian Court of Appeal said that the Harman undertaking arose because the giving of discovery in civil proceedings is a very serious invasion of the privacy and confidentiality of the litigant's affairs, and whilst the public interest in securing that justice is done between the parties is considered to outweigh the private and public interest in the maintenance of confidentiality, the process of giving discovery "should not be allowed to place upon the litigant any harsher or more oppressive burden than is strictly required for the purpose of securing that justice is done". The implied undertaking does however also arise when information is produced for one legal proceeding, which may be relevant to another. In Springfield Nominees Pty Ltd v Bridgelands Securities Ltd[4] a written statement which was created for the purposes of litigation which was settled, as opposed to having gone to trial, could be used in another proceeding involving different parties, but only if the Court made an order allowing that to occur. The Court noted that if the first case had gone to trial and the statement had been introduced as evidence, it would have been on the public record and would have been available to be used in the second proceeding. As the first proceeding was settled, the statement was not on the public record. The Court was prepared to make an order allowing the statement to be used in the second proceeding, even though such orders should only be made in special circumstances, on the facts of that case.
4. Accordingly, on the limited information available to me - which basically is confined to being told in a submission rather than in an affidavit that a report by Mr Wilson exists - I will not have regard to the fact of its existence for the purpose of this interlocutory application.
5. However, as I set out below, I am satisfied that the respondent is in a position to understand the case against it.

Should any of the applicants' pleadings be struck out?

1. The respondent's application is very broad. It does not merely seek the striking out of the most recent Further Amended Points of Claim, but rather all of the pleadings. If that were ordered, the Tribunal would be left with an "empty" initiating Application and the applicants would then have to replead.
2. The fact that the Further Amended Points of Claim was filed without leave does not cause a problem. The respondent invited the applicants to amend the Amended Points of Claim, and the applicants did so within the seven days suggested by the respondent. The Tribunal can extend a time limit after it has expired. I will do so in this case.
3. The fact that the Further Amended Points of Claim contains Exhibits does not cause a problem. It is somewhat unconventional for a legal practitioner to attach exhibits to a pleading, but the practice is not "banned" by any procedural rule. What possible objection can there be to attaching a copy of a building contract to a pleading which alleges that the parties have entered into that building contract? The respondent would have to plead to the allegation that the contract existed. It could choose to say whether or not it conceded that the Exhibit was an accurate copy of the contract. It would not be required to address pages of the contract in its Points of Defence.
4. The fact that the previous iterations of the Points of Claim have been physically included in the bundle of documents making up the Further Amended Points of Claim, and that they have been crossed out in red, does not cause a problem. It might be considered unnecessary to include the two previous versions in this document. There might be some quibble that the Further Amended Points of Claim entirely replaces the text in the Amended Points of Claim, rather than substituting a phrase here or there. However, the Order of 11 December 2024 simply ordered the applicants to "file and serve Amended Points of Claim which must include fully itemised particulars of the claim including the loss and damage and/or other relief or remedy sought". It did not say that the applicants had leave, for example, to "amend paragraph 5 of the Amended Points of Claim", or to file and serve a document in the form exhibited to an affidavit in support. The Order was wide ranging, and the applicants complied with the Order.
5. To succeed in its interlocutory application, the respondent's objection must therefore rely on assertions that the Further Amended Points of Claim is so ambiguous, unclear, or confusing as to require it to be struck out, or that it pleads non-existent causes of action.
6. The Tribunal does not have "rules of pleading" in the same way as the Courts. However, Practice Note PNBP1 "Building and Property List (building disputes) - General Procedures" sets out procedures which require the filing and service of Points of Claim and Points of Defence. Clause 2 of PNBP1 says that the Tribunal can vary the operation of the Practice Note by making a direction or order, but this implies that unless such an order is made the steps set out in the Practice Note are compulsory. Clause 8 (b) requires Points of Claim to contain "fully itemised particulars of the claim and the relief or remedy sought", and clause 8(c) requires them to "clearly identify any incomplete and defective works (which may be by reference to an attached expert's report providing such report is clearly itemised)". Clause 9 requires Points of Defence to engage in the proceeding, with clause 9(a) stating that they should "not contain bare denials or refusals to admit". Clause 10 seeks to have parties file Points of Claim and Points of Defence with all necessary particulars in them, to avoid the service of requests for particulars, but clauses 11 and 12 allow parties to file and serve a request for further particulars and require a party who receives such a request to respond within 14 days.
7. Obviously, there is a difference between an applicant's pleading being deficient, and the allegations in the applicant's pleading being denied by the respondent.
8. In paragraph 4v(i) of the Further Amended Points of Claim the applicants plead that clause 18.1 and item 17 of the Appendix to the building contract obliged the respondent to pay the applicants liquidated damages if it failed to complete the building works by the Completion Date as defined in the contract. Clause 18 appears on pages A29 & A30 of Exhibit A. Appendix 17 is at pages A48 & 49. In paragraph 26 of the Further Amended Points of Claim the applicants allege they "suffered liquidated damages of $32,467.81", and the particulars given suggest that this is not calculated by reference to Appendix 17. That does not warrant the Further Amended Points of Claim being struck out. As the applicants are not seeking leave to again amend their pleading, this is a matter which can be raised in the respondent's Points of Defence.
9. In paragraph 29 of the Further Amended Points of Claim the applicants claim damages of $220,770.00 "being the total costs of rectifying the defective and incomplete building works as defined in the VCAT compliant report dated 3 June 2024". The particulars sub joined to that paragraph identify Mr Rene White's report of 3 June 2024, and state that a copy of it is Exhibit L. The particulars then contain extracts from that report, being 17 headline items, some broken into sub items [eg, item 7 "External painting" is broken into sub item 18 - paint end grains of external timber cladding, and sub item 30 seal frame and footings]; contains a column headed "Scope of works to rectify", which contains text against each of the items [eg, for item 7 the description is very simple - "painting as per items"] ; and contains a column headed "Labour and materials $"; and one final column headed "Total $". [Again using item 7 as an example, those last two columns show 2 hours labour at a cost of $100.00, and materials of $50.00, leading to a total of $150.00]. The total claimed for rectification is $36,162.00.
10. The particulars sub joined to paragraph 29 continue with a similar claim for the cost of completing incomplete work. That claim is an "estimate" of $186,608.00, and it is followed by an extract from Mr Rene White's report which contains 20 items which are said to require completion. The respondent objects that the cost estimates in this part of the particulars contain a range between the low and high figure, for the cost of completion. [For example, item 8 is completion of heating and cooling fit off, and supply and installation of units and ducts; the low estimate is $8,500.00 and the high estimate is $13,000.00]. Paragraph 30 of the Further Amended Points of Claim says that, "Due to the time passed since the issuing of the VCAT compliant report, and the likely future date for the hearing of this matter, the applicants are seeking the highest costing estimates allocated for the completion of works to allow for inflation and price increases". It would be more conventional for the pleading to claim the amount current at the date of the pleading, or the date of an expert's costing close to the date of the pleading, and to foreshadow that the costings would be updated closer to the hearing. In my view paragraph 30 of the Further Amended Points of Claim has the same effect. The way paragraph 30 is expressed does not disadvantage the respondent to the extent that it would warrant the Further Amended Points of Claim being struck out.
11. The respondent also objects that three items of this extract from Mr Rene White's report concerning incomplete works uses figures which are expressly based on information which Mr White says was given to him by the applicants. They are items 4, 7 and 9, relating to tiles, electrical fit off and supply of appliances plumbing fixtures and shower screens. The respondent protests that Mr White has not formed his own opinion on those items, or alternatively stated why he adopts the costings given to him by the applicants. However, the alleged deficiencies in this part of the particulars does not warrant the striking out of the whole pleading.
12. As the applicants have not sought leave to again amend the pleading, my conclusion is that the Further Amended Points of Claim should not be struck out; that the respondent should file and serve its Points of Defence; and that the applicant can respond in the Reply which was provided for in paragraph 4 of the Order made 11 December 2024. Additionally, as I do not consider the Further Amended Points of Claim to be so "bad" as to make it impossible or undesirable for the respondent to seek further particulars - if it chooses to do so - it should be given that opportunity.

Should the expert report of Mr Rene White be struck out?

1. Obviously a respondent who is confronted with what it regards as being an inadequate expert's report - for example, because it fails adequately to set out the path of reasoning leading the expert to express the opinions in the report, or because the expert makes statements on matters which go beyond their expertise - can challenge the report at the final hearing and vigorously cross-examine the expert. In this case, though, the respondent seeks to have Mr White's expert report excluded from the proceeding. The respondent does not suggest that the applicants could not file and serve a report by another expert, or even file and serve another report by Mr White supplementing his current report. No doubt the respondent faces a tactical decision, of whether pressing Mr White for more detail would possibly harm the respondent by making Mr White's evidence more credible.
2. On page L4 of the exhibited copy of Mr White's report, he refers to Practice Note PNVCAT2 and sets out information about his qualifications and his acknowledgement of his duty to the Tribunal. He sets out his CV at page L23. Pages L5 to L10 set out in chart form his views on defective and incomplete work, and my perusal of this part of the report indicates that the charts have been copied and pasted into the particulars sub joined to paragraph 29 of the Further Amended Points of Claim. Pages L11 to L22 contain a series of photographs of allegedly defective or incomplete work. Pages L23 to L53 contain text explaining Mr White's observations and opinions.
3. The affidavit of Ms Griffin sworn 7 March 2025 contains some material on the basis of which the respondent asserts that Mr White is not an "expert". Those criticisms are replied to in paragraphs 26-32 of the applicants' written submissions. I am satisfied that the controversy about Mr White's expertise is a matter that can be dealt with when Mr White gives evidence in the hearing, and that any doubt raised by Ms Griffin is not so great as to cause me to determine that his report is inadmissible. Assertions that statements in Mr White's report go beyond his expertise (for example, that his expertise might relate to identifying defects but not to the specification or costing of rectification work) are matters which can be raised in the hearing by way of cross examination and submissions as to the weight to give his evidence.
4. My conclusion is that the report of Mr White should not be struck out or determined to be inadmissible.

Should the applicants be required to give an undertaking?

1. No.
2. The applicants are not required to give an undertaking, because if they want to amend the pleadings again or file another experts report, they will need to apply for leave.

1. The Tribunal refers many building disputes to compulsory conferences or mediations. The Tribunal is conscious of the costs which parties incur in taking their cases to that stage, and the costs which are incurred in giving discovery of documents. The Tribunal considers many factors, including the amount in dispute and the apparent complexity of the issues in dispute, when deciding whether to require the parties to make discovery of documents before proceeding to an ADR meeting. So far, an order for discovery has not been made.
2. During the hearing, the respondent submitted that the applicant's expert Mr White had referred in his report to a non-VCAT compliant expert report, which had not been disclosed to the applicants. This was the report by Mr Jesse Wronski under the letterhead "Darbecca". In fact it was exhibited to the original Points of Claim. The respondent sought an order for discovery. The applicants agreed with the respondent's submission that any privilege in that non-compliant report had been waived, and that the respondent was entitled to see it. The applicants agreed that formal discovery should be made by both sides. I take opportunity to include an order for discovery.

1. Costs do not follow the event in VCAT proceedings. At the end of the hearing, in which time I had not made a decision on the interlocutory application, I suggested that I would reserve costs. The parties agreed that that was appropriate.
2. The parties' legal practitioners are well aware of subsections 109(2) and (3) of the VCAT Act. Clearly, the respondent's application failed, but the respondent improved its position compared to that which it held under the Order made 11 December 2024, in that it was essentially reminded of its right to seek further particulars. The applicants' opposition to the respondent's application succeeded, and the applicant had criticised the respondent for not seeking further particulars if that is what it thought was required.
3. Whether or not costs are eventually awarded to the applicants, the respondent might consider whether its own costs of bringing this failed application were wisely incurred. Given the preparation of two affidavits, two sets of submissions, and a Brief to Counsel, those costs would not be insubstantial.

[1] Chopra v Department of Education and Training [2019] VSC 488 at paragraph [107].

[2] A pleading usually asserts facts, not intentions.

[3] [1996] VicRp 54; [1996] 2 VR 34.

[4] (1992) 110 ALR 685.