Has Mrs Singleton been compensated for the losses claimed and/or are the claims negligible?

1. There is a clear difference of opinion between the parties on these factual questions. While I accept the Surveyors' contention that many years have passed since the disputed events, there was no evidence before me that witnesses will be unavailable. The strength of their recollections and the weight of their evidence should be tested during the hearing. Further, the expert opinion of Mr Perna alone demonstrates that the claim value is not negligible. The Surveyors have filed an expert report of Mr Akritidis. These expert opinions will need to be tested. In those circumstances, it is clear there is an open and arguable case to be determined after evidence has been given and tested during a hearing.

1. For the reasons above, I will give Mrs Singleton leave to file and serve the proposed Second Further Amended Points Of Claim dated 16 February 2023, provided that any claim based on "the Australian Consumer Law (Victoria), given effect by section 8 of the Australian Consumer Law and Fair Trading Act 2012", is deleted.
2. The application by the first and second respondents for an order striking out the proceeding under s 75 of the Act is dismissed.
3. I will list the proceeding for a directions hearing on the next available date to make orders for the future conduct of the proceeding, which presumably will be to have the matter listed for hearing.
4. Any application for costs or any other orders must be made by filing and serving an Application for Directions Hearing/Orders with material in support. It may be appropriate to determine costs on the papers, unless a party objects. Otherwise it may be dealt with at a later directions hearing.

[1] See Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 97, 98; VCAT Practice Note 3, [17]-[19].

[2] Paul Gerard McGuiness dated 12 July 2023.

[4] [2008] VSC 83, [10].

[5] Worldwide Enterprises Pty Ltd v Westpac Banking Corporation [2010] VCAT 1125; Fleming v South East Water [2013] VCAT 349, [6]-[7]; Khani-E v Simonds Homes [2019] VCAT 1446, [20]-[21].

[6] Ausecon Developments Pty Ltd v Kamil [2015] VCAT 1474, [1]; Owners Corporation No 1 PS537642N v Hickory Group Pty Ltd [2015] VCAT 1683, [9]

[7] [2022] VCAT 1499, [263].

[8] [2004] VCAT 547, [54].

[9] Thurin v Krongold Constructions [2022] VSCA 226.

[10] See, eg, Owners Corporation 1 PS538430Y v H Building Pty Ltd (Under external administration) and Ors [2019] VCAT 1485, [6]-[10] (Deputy President Aird).

[11] Orders v Maloney & Anor [2013] VCAT 324, [10]-[11] (Vice President Judge Jenkins).

[12] [2022] VCAT 29, [33].

[13] [2022] VSCA 105.

[14] [2023] NSWCA 66.

[15] Report of SP Building Surveyors dated 14 February 2023, 8.