1. The respondent must pay to the applicants damages in the sum of $45,558.22.
2. The respondent may make an application for damages in the nature of interest in respect of the sums unpaid under the contract. Any such application must be made within 30 days and must be supported by short submissions setting out the basis upon which interest is claimed and setting out any relevant calculations.
3. The applicants may make an application for damages in the nature of interest in respect of the sum determined to be payable to them. Any such application must be made within 30 days must be supported by short submissions setting out the basis upon which interest is claimed and setting out any relevant calculations.
4. When awarding damages in the nature of interest, the Tribunal may set off the amount due to one side against the amount due to the other side.
5. Each party has leave to make an application for costs within 30 days. Any such application should be supported by short submissions referring to s 109 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act') and, if appropriate, s 112 of the VCAT Act. If a party is relying on an offer made, the offer should be exhibited to an affidavit.
6. Each party has leave to make an application for reimbursement of fees within 30 days. Any such application should be supported by short submissions referring to s 115B and s 115C of the VCAT Act.
7. Any application made under these orders must be referred by the principal registrar to Senior Member Edquist who will make orders regarding the manner in which any application is to be dealt with.

1. This determination arises out of a major domestic building contract made in March 2019 between Mr Zhendong Song and his daughter Ms Jie Song ('the owners') with M.T.V. Building & Construction Pty Ltd t/as VoJo Construction ('the builder'). The contract concerned the renovation and alteration of an existing house and the construction of a new townhouse at the owners property in Argyle Street Fawkner, Victoria.
2. The proceeding has a long history, which is summarised below, from [4].
3. The purpose of this determination is to:

(a) make a determination in respect of an outstanding claim made by the owners that there is a defect in a shower in the laundry;

(b) make a determination in respect of a defect pressed by the owners, namely an allegedly defective solar panel, in respect of which new evidence has become available;

(c) make assessments of the cost of completing a number of items of incomplete work which were left outstanding when the contract was brought to an end;

(d) make monetary orders, leaving for resolution at a later time any claim for interest in the nature of damages, and reimbursement of fees.

1. Within a year of execution of the contract, the parties had fallen into dispute as to whether it was the responsibility of the owners or the builder to connect the stormwater drain which the builder had created on the property to the Melbourne Water stormwater drain in Argyle Street. Despite attempts by the parties to settle the dispute, it could not be resolved and on 19 May 2020 the owners lodged an application with Domestic Building Dispute Resolution Victoria ('DBDRV').
2. The dispute between the parties escalated to include disputes about variations. Ultimately, at least 10 variations were claimed by the builder, although a number were resolved without been determined by the Tribunal.
3. On 22 August 2020, the builder sent to the owners a fixing stage invoice for $97,500.00. The builder suspended work until the invoice was paid.
4. On 12 November 2020, DBDRV made an order requiring the owners to pay a total of $100,965.07. This sum was comprised of the fixing stage invoice of $97,500.00, interest on late payment, and a variation of $1,100.00 in respect of the front fence.
5. The owners complied with the order by making payment by the end of November. The owners claimed a refund of $7,365.78 which they insisted had been overpaid. This dispute remained in issue at the time the owners began this proceeding on 5 December 2020.
6. Even though the owners had made payment of the disputed fixing stage invoice, the builder declined to return to the site immediately, saying that it was unable to do so until after Christmas. It later became clear that by this point the builder had taken another job for cash flow purposes and was committed on another site.

THE OWNERS' FIRST NOTICE OF INTENTION TO TERMINATE THE CONTRACT

10 On 17 December 2020, the owners gave notice to the builder that the builder was in substantial breach of the contract and demanded the default be remedied within 10 days in accordance with the contract. The builder did not respond by 27 December 2020. Despite asserting an entitlement to end the contract at that point, the owners did not do so even though the builder did not return to work.

THE BUILDER'S INVOICE IN CONNECTION WITH WORK ON THE EXISTING DWELLING

1. On 12 January 2021, the builder sent the owners invoice #6 for $72,800.00 in respect of work carried out in relation to the existing dwelling. The covering notice was to the effect that work would not recommence until the invoice was paid. From the owners' point of view, this opened up a new dispute, because it was the first time that the builder had indicated that work in relation to the existing dwelling was not covered by the contract.

12 On 19 March 2022, the owners issued a further notice to the builder headed 'Notice to the builder of being in substantial breach of the contract again'. The notice referred to clause 43.2 of the contract and asserted that the builder had:

(a) suspended the carrying out of the building works;

(b) delayed the building works for a long time;

(c) caused defects referred to in 'Expert Witness Report for 48 Argyle Street Faulkner' dated 24 February 2022 and 'Expert Witness Supplementary Report for 48 Argyle Street Faulkner' dated 16 March 2022.

13 By notice dated 8 April 2022, the owners gave a further notice to the builder. This referred to both the notices of 17 December 2020 and 19 March 2022 and advised that 'it is with great regret we are sending you this further written notice to end this Contract'.

14 The question of whether the owners had lawfully terminated the contract on 8 April 2022 became an issue in the proceeding.

THE CLAIMS PRESSED BY THE PARTIES AT THE HEARING

1. On 5 December 2020, the owners lodged a claim at the Tribunal in connection with the stormwater drain dispute.
2. On 28 May 2021, the owners amended their points of claim.
3. On 29 October 2021, the builder filed a defence and counterclaim. In the counterclaim, the builder sought an order that the owners pay to it $72,800.00 in respect of invoice #6 on the basis that all the work it had performed in relation to the existing dwelling (as distinct from the construction of the new town house) was performed as a variation to the contract. The builder also claimed $16,143.20 in respect of another 8 variations. It was acknowledged by the builder at the hearing that the eighth variation - which related to the rebuilding of the front fence at a cost of $1,100.00 - had already been paid by the owner. The net claim for variations made by the builder, other than variation #6 for $72,800.00, was accordingly limited to $15,043.20.
4. The owners filed a defence to the counterclaim on 22 February 2022. They also amended their points of claim on 15 March 2022. Importantly, this pleading made it clear that the owners were seeking damages of $241,165.45 together with costs and disbursements of $7,460.00.
5. The owners filed a further amendment to their points of claim on 8 January 2023. The importance of this document is that it made it clear that the owners had terminated the contract on 8 April 2022.
6. The issues before the Tribunal when the first hearing began in July 2023 were:

(a) who is responsible for the cost of connecting the stormwater drain constructed on the site by the builder to the Melbourne Water stormwater drain in Argyle Street outside the site?

(b) does the contract include the work to the existing dwelling?

(c) did the owners lawfully terminate the contract, and what are the consequences?

(d) is the builder liable to the owners for delay damages, and if so, in what amount?

(e) are the owners entitled to reimbursement of $7,365.78 or any part of that sum?

(f) for what variations is the builder entitled to be paid?

(g) what is the adjusted contract sum?

(h) how much has been paid by the owners under the contract?

(i) are there defects in the builder's work and, if so, what is the cost to rectify them?

(j) are the contract works incomplete and, if so, what is the cost to complete the works?

21 The first hearing began before me on 10 July 2023, and continued on 11, 12, and 13 July 2023. Mr Song and Ms Song appeared in person. They both gave evidence. They called as an expert a building consultant, Mr Andrew White.

1. The builder was represented by Mr Tony Mitevski, the son on the principal of the builder, Mr Voja Mitevski. Mr Tony Mitevski was assisted throughout the hearing by his sister Ms Violetta Talevski. Voja Mitevski and Tony Mitevski and Violetta Talevski all gave evidence. The builder also called two of its subcontractors, Mr Vance Stankovic and Mr Zoran Lazarevski. The builder called as expert witnesses two quantity surveyors, Mr Gareth Tiong and Mr Thomas Chai. A view was held on the fourth day of the hearing.

1. I published a determination with reasons about three weeks after the conclusion of the first hearing, on 8 August 2023. I did not make final orders, but made a series of declarations. They included declarations that:

(a) (Not relevant here)

(b) the scope of the work under the contract does not require the builder to take the stormwater drain constructed within the site boundary across the site boundary to join the Melbourne Water Stormwater drain in the street;

(c) the scope of the work under the contract includes alterations and additions to the existing house on the site;

(d) the owners' termination of the contract in April 2022 was unlawful;

(e) the owners' claim for liquidated damages for delay must be dismissed;

(f) the builder is entitled to an award in respect of variations of $13,138.00 but its counterclaim is otherwise to be dismissed;

(g) the adjusted contract sum including variations is $403,138.00;

(h) the owners are entitled to have credited against the contract sum, apart from progress payments made against invoices, the following amounts:

(i) $3,000.00 paid in advance in respect of the benchtop variation;

(ii) $2,000.00 paid for kitchen appliances;

(iii) $1,100.00 paid under an order from DBDRV regarding repairs to the front fence; and

(iv) a credit of $4,180.00 in respect of screw piles not installed;

(i) (not relevant here)

(j) the builder is liable to the owners for defects in the sum of $1,813.00.

1. Because the liability of the builder to the owners in respect of both damages in respect of incomplete work and damages in the nature of interest remained to be assessed, I listed the proceeding for a further hearing concerning assessment of damages on 9 October 2023, and made programming orders for the filing and serving of further evidence.
2. The further hearing scheduled for 9 October 2023 had to be vacated because the applicants appealed the orders made 8 August 2023 to the Supreme Court by notice filed on 6 September 2023.
3. The appeal was heard by Justice Quigley on 26 November 2024. On that day, Justice Quigley granted leave to the owners to file the notice of appeal out of time. (It had been filed one day late.) Justice Quigley also denied Mr Tony Mitevski leave to appear on behalf of the builder, on the basis that he failed to persuade the Court to dispense with the requirement of Rule 1.17 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), which restricts the ability of a corporation to be represented before the Court by a non-solicitor. The decision was otherwise reserved.
4. On 17 January 2025, Justice Quigley published her orders with reasons. Order 1 dealt with the successful application for an extension of time mentioned above. Order 2 dealt with the unsuccessful application by Mr Tony Mitevski to appear on behalf of the building company, also mentioned above.
5. In order 3, leave to appeal was granted and the appeal was allowed only insofar as it related to an alleged shower defect. In order 4, leave to appeal was refused on all other questions of law. In order 5, order 1(j) of the orders made by the Tribunal on 8 August 2023 was set aside insofar as it failed to incorporate the liability (if any) in respect of the alleged shower defect referred to in item 13.8 of Mr David White's report dated 24 February 2022 ('the White Report'). By order 6, the Tribunal was directed to reconsider the assessment of liability for defects referred to at order 1(j) of the Tribunal's orders made 8 August 2023 by:

(a) incorporating an assessment of the liability (if any) in respect of the alleged shower defect at item 13.8 of the White Report; while

(b) maintaining and adopting its liability assessment in respect of the other defects set out at [123]-[140] of its reasons.

1. Order 7 related to the costs of the appeal. This order does not warrant discussion here.

1. As a result of the orders made by Justice Quigley, the proceeding was remitted back to the Tribunal for further consideration.
2. A directions hearing was held on 14 February 2025. Although there was an appearance on behalf of the builder by Mr Tony Mitevski, there was no appearance by either Mr Song or Ms Song, and the directions hearing was adjourned to 31 March 2025.
3. On 31 March 2025, Mr Song appeared on behalf of the applicants, and Mr Tony Mitevski appear on behalf of the builder. The proceeding was listed for a final hearing on 4 July 2025.
4. That hearing was, by an order in Chambers, later bought forward to 1 July 2025.

1. The scope of issues to be dealt with at the second hearing was framed by the orders made at the directions hearing on 31 March 2025 in the following terms:

(a) the damages to be awarded following the findings made by the Tribunal in the orders of 8 August 2023 and the accompanying reasons;

(b) the assessment of liability for defects referred to at order 1(j) of the Tribunal's orders by incorporating an assessment of the liability (if any) in respect of the alleged shower defect at item 13.8 of the White Report;

(c) any other defect (although the Tribunal noted that there may be an issue as to whether any new defects can be raised at this point);

(d) the final orders the applicants would like the Tribunal to make.

1. Because, at the first hearing, the Tribunal had not been able to assess damages in respect of incomplete work because not all the relevant evidence was to hand, the formulation of the final orders necessarily required the Tribunal to determine the liability of the builder to the owners for damages in respect of incomplete work.

1. At this hearing, Mr Song appeared on his own behalf and on behalf of his daughter, Ms Jie Song. Mr Tony Mitevski appeared on behalf of the builder. The builder was given an opportunity to cross-examine Mr Song at the hearing, and Mr Song cross-examined Mr Tony Mitevski.

1. The parties were given an opportunity to file further material prior to the final hearing. The owners, at the hearing, relied on a number of documents including:

(a) a statutory declaration concerning incomplete work filed by Mr Song made 28 August 2023 ('Incomplete Work Declaration');

(b) an affidavit sworn by Mr Song on 21 March 2025 in respect of a defective solar panel ('March affidavit');

(c) written submissions prepared for the final hearing dated 2 May 2025 ('May submissions');

(d) a further affidavit sworn by Mr Song on 2 May 2025 ('May affidavit');

(e) the schedule of incomplete work prepared by their expert Mr Andrew White, which appears at pages 28-31 of the White Report.

THE BUILDER'S SUBMISSIONS ABOUT INCOMPLETE WORK

1. The builder filed a document headed 'Further evidence regarding liability or quantum' and 'notice of service' dated 25 September 2023 ('the September submissions') in compliance with the orders made on 8 August 2023. The first part of the document referred to specific paragraphs of the Tribunal's reasons dated 8 August 2023. The builder then set out a number of statements regarding specific items of incomplete work. Those comments were relevant to the issues related to be determined, and the Tribunal has had regard to them. The document also contained a number of annexures, which I now comment upon in turn.

38A One of the annexures to the September submissions was a public notice titled 'Proclamation of Peace and Integrity' which had been witnessed by a public notary on 5 July 2023. This document is not relevant to the proceeding and is put to one side.

38B Another annexure was headed 'Fee structure: Terms and Conditions' which appeared to be a statement of a claim being pursued by Mr Tony Mitevski pursuant to 'Canon Law 5057'. This document is irrelevant to the proceeding, and is disregarded.

38C Another schedule was headed 'Court Appearance Schedule' and was followed by the following demand:

These fees must be paid immediately after my case is finished. Failure to pay fines and fees will have an additional fee of $50,000 for breach of contract.

38D A schedule of fees was then sent out, which began with a claim for fees in respect of appearance 'Under protest and duress-Hourly fee $75,000.00'. There were about 18 other claims relating to use of tradename material, the provision of private information or time used in court appearances. These fees appear to be personally claimed by Mr Tony Mitevski. That is the case, the claim is misconceived on the basis that he has no standing in the proceeding. If the fees are claimed on behalf of the builder, then the claim must be pressed at the appropriate time under s 109 of the VCAT Act. For these reasons, this annexure is set aside.

38E The penultimate schedule was headed 'Trespass-Fee Schedule'. The first item claim was 'Failure to Honour God Given Rights' in respect of which are stated fee was $20,000.00. There were about 36 other categories of fee. No basis was given for how these fees were claimed. The schedule is put to one side.

38F The final schedule related to 'Services to others and/or Corporation(s)'. The fees included an hourly rate of $500.00 for each of studying, analysing, research, preparing documents, answering questions and providing information. The fees claimed increased to $75,000.00 per hour 'While under threat, duress, coercion'. It is conceivable that these were fees which Mr Tony Mitevski proposed to charge the builder for the assistance he rendered in connection with this proceeding. If that is the case, he must take the issue of fees up with the builder. No explanation was otherwise given as to why the fees were set out or why they were relevant to the case. This schedule is also set aside.

1. Prior to the hearing on 1 July 2025, Mr Tony Mitevski filed two other submissions on behalf of the builder.

39A The first was dated 20 June 2025 and was headed 'Prerogative Directive and Notice of Equitable Supersession'. It is addressed not only to the principal registrar of the Tribunal, but also to myself, to Justice Quigley of the Supreme Court and to the Attorney-General of Victoria. In the document an alleged objection to a procedural irregularity was raised. This seemed to relate to the fact that the hearing on 1 July 2025 had initially been scheduled for 4 July 2025, and that this was an irregularity. Putting aside the fact that there is nothing in the complaint, the notice was supported by references to a number of relevant documents including an ATO Tax File number Declaration and Withholding Declaration and also Form 5A-Writ of Execution (Supreme Court of Victoria). I put this document to one side.

39B The complaint that the hearing had irregularly been rescheduled from 4 July 2025 to 1 July 2025 was repeated in a further document filed on 27 June 2025 by Mr Tony Mitevski, who described himself 'De Jure Crown in Right for the Magna-Mater Society: House of Zita-Makedon Charitable International Trust (MMZMCIT), acting for, acting for M.T.V Building & Construction Pty Ltd, on the land of the Wurundjeri Woi-warrung people of Kulin Nation, whose sovereignty has never been ceded'. The notice went on to assert, amongst other things, MMZMCIT's equitable interest in assets involved in this proceeding, demanded fiduciary disclosure, rebutted the 'plaintiff's' claims, and sought procedural relief at the 1 July 2025 hearing including under the Trustee Act 1958 (Vic). This document was discussed briefly at the hearing on 1 July 2025. I ruled the hearing would not be adjourned and explained why the document was irrelevant to the issues in the proceeding.

39C Mr Tony Mitevski filed a second document dated 27 July 2025, headed 'Consolidated Notice of Equitable Interest, Fiduciary Disclosure, Rebuttal Pendente Lite and Motion to Stay'. On this occasion he described himself as Attorney-in Fact In -Trust (EIN 98-6124802), Executor-in-Trust, Bona Fide (Protected) Purchaser, Beneficial Entitlement Holder as Settlor, De Juror Crown in Right, MMZMCIT. He sent the document to a number of individuals including the Tribunal CEO, myself, Acting Senior Member Nash, Justice Quigley, the Attorney General (Victoria) and the Attorney-General (Commonwealth), and to a number of institutions including the Sheriff's Office, Victoria, the High Court of Australia, the Magistrates Court of Victoria, the Australian Human Rights Commission, the United Nation's Human Rights Committee and the International Criminal Court. The document comprised 13 different sections including a notice of equitable interest pendente lite, a written demand for a new agreement, a notice of fiduciary disclosure and an accounting demand, payment terms, instructions to the sheriff, and 'Multi-Jurisdictional Considerations'. I put this document to one side on the basis that it is irrelevant to the proceeding.

1. At the hearing on 1 July 2025 the owners sought to claim damages for this alleged defect which they had been unable to press at the first hearing due to lack of evidence. In the reasons dated 8 August 2023, the Tribunal had said the following about the solar HWS, at [145]:

The builder installed solar panels on the roof. The owners' complaints are that they do not know what brand has been installed, and that the solar panels are not connected to the hot water system. The parties will have leave to provide further evidence about this issue concerning both liability and the cost to complete.

1. It follows that it was permissible for the owners to press this claim further at the second hearing.
2. The builder, in its September submissions, acknowledged that the solar HWS panel had been installed on the roof and connected to the water tank. However, the panel had not been connected to the hot water unit itself, as this was to be done at completion stage.
3. In his March affidavit, Mr Song deposed that when Mr White (the owners' expert) inspected the site, he found the solar panel had been installed on the roof but the storage unit was on the ground and had not been installed. This is consistent with the builder's position.
4. Mr White did not climb on the roof to check the panels.
5. Mr Song went on, in his March affidavit, to depose that after he became owner-builder he completed the installation of the Rheem storage unit on the ground in accordance with the relevant working drawing. However, after being connected to electricity and water, the system did not work. Mr Song had to call Rheem to check why. A Rheem technician came to the site on 10 February 2023 and found that the solar panel was not manufactured by Rheem and was not compatible with Rheem's system. This evidence was supported by a brief report from the Rheem technician which was exhibited to the affidavit.
6. Mr Song appended to his affidavit a quotation from David Rotstein of Hotwater Professionals which stated that the panel must match the tank and that it was best to replace the panel as the quality of the Rheem tank was good. Mr Rotstein quoted $1,430.00 inclusive of GST to supply a compatible Rheem panel and an installation kit. Delivery of $88.00 was also quoted. Installation was quoted separately, at $1,320.00. The total of these quotations is $2,838.00, inclusive of GST. This is the amount claimed by Mr Song.
7. I accept Mr Song's evidence on these matters, and will award the owners $2,838.00 in relation to the solar panel issue.

1. Mr Song's May submissions fill 27 paragraphs and run over slightly more than three pages. Many of the submissions are irrelevant, as Mr Song sought to persuade me to review a number of the determinations made in the orders of 8 August 2023 even though a number of those determinations had been the subject of an appeal to the Supreme Court and had been upheld in the Supreme Court.
2. I note that in respect of the issues where the Supreme Court has upheld the determination dated 8 August 2023, the only avenue for review of the Supreme Court decision available to the applicants is to the Court of Appeal. It is not open for me to review those issues.

1. Paragraphs [1]-[6] of the May submissions, covering the first two pages of the document, contained a set of submissions as to why the Tribunal's determination, regarding the responsibility of the owners to take the stormwater drain constructed within the site boundary across the site boundary to join the Melbourne Water stormwater drain, was wrong.
2. These submissions were intended to be supported by paragraphs [4]-[15] of the May affidavit sworn by Mr Song.
3. This matter has been determined by the Tribunal. The Tribunal's determination on the issue has, as discussed above, been appealed to the Supreme Court and the decision of the Tribunal has been upheld. The Tribunal has no jurisdiction to further review the decision concerning the stormwater drain.

THE TRIBUNAL'S DECISION CONCERNING TERMINATION OF THE CONTRACT

1. Paragraphs [7]-[10] of the May submissions contain contentions as to why the Tribunal's decision concerning the termination of the contract was wrong. The owners intended to support the submissions by paragraphs [16] and [17] of Mr Song's May affidavit.
2. The Tribunal's decision of 8 August 2023 on this issue has been appealed to the Supreme Court unsuccessfully. The matter is closed. The Tribunal cannot review the matter further.

THE OWNER'S ENTITLEMENT TO CLAIM REASONABLE DELAY DAMAGES

1. Paragraphs [11] and [12] of the May submissions contain arguments suggesting that the Tribunal's determination that the owners are not entitled to claim delay damages was wrong.
2. This determination was appealed to the Supreme Court and the appeal was rejected. The Tribunal cannot review the issue further.

THE OWNERS' ENTITLEMENT TO CLAIM REASONABLE DAMAGE ABOUT THE UPGRADE OF THE BENCHTOP

1. The Tribunal did not make an award to the owners in respect of any defect in the benchtop. The Tribunal did make an award to the builder of $3,600.00 inclusive of margin in respect of an extension of the benchtop, at [101] of the reasons dated 8 August 2023.
2. Paragraphs [13]-[15] of the May submissions contain arguments as to why damages about the upgrade of the benchtop are recoverable. The owners intended to support these submissions by [22] and [23] of Mr Song's May affidavit.
3. The issue of the benchtop variation was considered by the Supreme Court on the appeal, at Question 5(a). It is not open to further review by the Tribunal.

THE OWNERS' ENTITLEMENT TO CLAIM REASONABLE DAMAGE ABOUT THE STAIRCASE BALUSTER

1. Paragraphs [16] and [17] of the May submissions contain reasons as to why the owners are entitled to claim reasonable damage about the staircase baluster. The owners intended to support these submissions by paragraphs [24]-[28] of the May affidavit.
2. In the reasons dated 8 August 2023, at [91], the Tribunal allowed a variation of $1,160.00 in respect of a variation of the staircase baluster. Although this determination does not appear to have been appealed to the Supreme Court, it still stands as the determination of the Tribunal. The Tribunal does not have jurisdiction to review its own determinations except in very limited circumstances, which do not apply here. This issue is closed.

THE OWNERS' ENTITLEMENT TO CLAIM REASONABLE DAMAGE ABOUT A VARIATION TO SHOWER ON THE GROUND FLOOR

1. Paragraphs [18] and [19] of the May submissions contain submissions as to why the owners are entitled to claim damage concerning the variation to the shower on the ground floor. The owners intended to support these submissions by reference to paragraph 29 of the May affidavit.
2. The Tribunal, in its reasons of 8 August 2023, at [95], allowed a variation of $1,700.00 in respect of this shower.
3. The owners appealed this decision (at Question 5(b)) but the Supreme Court rejected the appeal. The Tribunal cannot review the matter again. It is closed.

THE OWNERS' ENTITLEMENT TO CLAIM $2,365.78 INTEREST FOR LATE PAYMENT BY ORDER MADE BY THE DBDRV

1. At paragraphs [20] and [21] of the May submissions the owners seek to recover the sum of $2,365.78 which they were ordered to pay to the builder by DBDRV.
2. At the hearing in July 2023, the owners sought to recover this sum when they made a claim for reimbursement of $7,365.78. This claim was dealt with by the Tribunal at [83] and [84] of the reasons of 8 August 2023. The claim for reimbursement of interest was rejected. The Tribunal has no jurisdiction to review its own determinations. This matter is closed.

THE BUILDER'S LIABILITY FOR DEFECTIVE FLOORBOARDS

1. At paragraph [22] of the May submissions, the owners make reference to paragraph [30] of the May affidavit. This relates to the issue of the builder's liability for defective floorboards. Mr Song deposes that the floorboard defect was confirmed to exist by Mr White and by the Tribunal.
2. The reference to the Tribunal's view must be a reference to the complaint that the floorboards were not running parallel with the perimeter walls. This defect was discussed at paragraphs [132]-[135] of the reasons of 8 August 2023. The claim was dismissed on the basis that to award damages would be to enable the owners to exploit a technical defect in order to secure a windfall award of damages.
3. The Tribunal's decision on this issue was considered by the Supreme Court during the appeal, at [109]-[112] of the judgement, and the Tribunal's decision was upheld.
4. The issue cannot now be re-litigated in the Tribunal. It is closed.

1. Mr Song, in his May submissions, makes reference to the shower defect at [24] and [25]. He does little more than refer to paragraph [31] of his May affidavit, in which he had deposed that after the termination of the contract he, in the capacity of owner-builder, engaged All Rang Maintenance & Building Services Pty Ltd to fix the defect at a cost of $5,141.00 inclusive of GST.
2. Justice Quigley made the following observations about the shower defect in her judgement, at [113]-[119]:
   1. The defect referred to by the applicants is described at item 13.8 of Mr White's report dated 24 February 2022 as follows:
      1. There has been a shower installed into the laundry.
      2. There has been no visible water stop provided for the shower cubicle.
   2. Insofar as the defect referred to in the expert report is raised, the grounds alleged that the defect is identified in the expert report and an estimated cost to remediate is $3,478.75 (including GST). The Owners submitted that they engaged a tradesperson to remediate it at $5,141 (including GST) and sent the evidence to the Tribunal during the hearing. A copy of the invoices was included in their affidavit material filed with the Court. No mention of this item is made in the Tribunal's order relating to defects summarised at [139] of the Tribunal's Reasons.
   3. On its face, the omission at [139] appears to be an inadvertent error. From [123]-[139] of the Tribunal's Reasons, the Tribunal goes through each defect identified in items 13.1-13.7 of the report and makes a finding as to the existence of the defect and damage allowance. The laundry shower defect, which is item 13.8, is the final defect listed in the report and is the only defect omitted by the Senior Member. This indicates to me that this final item was omitted in error.
   4. The omission is unfortunate because there is nothing else in the Tribunal's Reasons which indicate whether the Senior Member accepted Mr White's evidence as to the existence of the alleged defect or the estimated cost to remediate it.
   5. It is clear from the Tribunal transcript that the defect was discussed at the Tribunal hearing. It shows that on 12 July 2023 (being the day before the site inspection), both Mr White and Mr V. Mitevski were questioned about the existence of the alleged shower defect. In particular, the exchange between Mr V. Mitevski and the Senior Member commencing at page 412 of the Court Book demonstrates that the Senior Member would determine whether the alleged defect existed after completing the site inspection. In the exchange, Mr V. Mitevski denied the existence of the defect and (on the hypothetical scenario that the Member were to accept the evidence of the defect) challenged the quantum of the repair costs. In the exchange, the Senior Member also foreshadowed that he would provide Mr V. Mitevski with an opportunity to put MTV's position as to the existence of the defect after the site inspection.
   6. While the Senior Member at [11] of the Tribunal's Reasons notes that 13 July 2023 was to be the final day in which the hearing came before him, the parties only provided the Court with hearing transcripts for 10-12 July. It is unclear whether this is because 13 July 2023 was used solely for the site inspection (and thus no transcript was produced) or due to an oversight.
   7. There is no material before me which directly indicates what the Senior Member's finding was in respect of the alleged defect. What is in evidence is the expert report and the invoice for the payment of the works which corresponds with the defect assessed by the expert.
3. I have reviewed my notes of the hearing conducted on 12 July 2023. These notes indicated Mr Voja Mitevski, under cross examination, deposed that the allegedly missing water stop had been installed 'where the tap is'. When he was asked whether $3,478.75 would be a reasonable cost to rectify the defect, he answered that it was 'too much' and suggested that a figure in the range $1,700.00-$1,800.00 would be reasonable.
4. My notes of the hearing on 12 July 2023 confirm that a site inspection occurred on the afternoon of that day.
5. I observe that no transcript of the hearing held on 13 July 2023 was made available to the Supreme Court. I have checked my notes of the hearing. They establish that the shower in the laundry was discussed early in the morning of 13 July 2023. I recorded that Ms Talevski gave evidence that the builder did not build the shower hob. She asked why they would put in a hob if the owners were going to redo the bathroom in any event.
6. I note that this evidence is not necessarily inconsistent with the evidence given by Mr Voja Mitevski, which was that the water stop had been installed near the tap.
7. Ms Talevski's evidence is, however, consistent with Mr White's opinion that there was 'no visible water stop provided for the shower cubicle'.
8. I note that the builder called no expert to respond to Mr White's evidence as to the existence of the defect. For this reason, I find the defect is established.
9. I have checked the Tribunal's records and have located an email from Mr Song sent to the Tribunal on 12 July 2023 enclosing 'evidence for cost of fixing defective laundry and shower on ground floor'. The existence of these documents is broadly consistent with Mr Song's recollection that he sent evidence to the Tribunal about the shower defect on 13 July 2023.
10. Two quotations were attached to Mr Song's email of 12 July 2023. One was for $1,000.00 and the other one was for $4,180.00. The total of the two quotations is $5,180.00, which of course exceeds the amount claimed by Mr Song.
11. The builder made no submissions in opposition to the claim made by Mr Song for damages of $5,141.00, and I will award this sum to the owners in respect of the shower.

1. One set of issues which could not be resolved following the first hearing, due to insufficient evidence, related to the assessment of the owners' claims for damages in respect of work within the scope of the contract which the builder did not complete.

1. Pursuant to the orders made by the Tribunal on 8 August 2023, Mr Song filed a statutory declaration made 28 August 2023 which confirmed the contents of a detailed statement concerning incomplete ('Incomplete Work Declaration').
2. In the Incomplete Work Declaration, Mr Song deposed that since he had been acting as owner-builder, he had spent 'much time and huge money on this project'. Although some documents were exhibited to the Declaration, Mr Song deposed that the owners believed that they had provided enough evidence to support their claim for damages, and did not keep evidence as to the cost of completion of the works in the nature of time records. Nor did they keep all the receipts for money spent on work carried out by themselves. However, they did keep some subcontractors' invoices and had provided invoices to their expert Mr White.
3. Although Mr White's report referred to a large number of items of incomplete work, he did not, according to Mr Song, record all of it. Examples are two toilets, and a steel cover on pit 1 of the stormwater drainage system. Another example is cleaning the windows and glass doors, which took a long time because packing tape had not been removed in a timely manner by the builder.
4. Mr Song's Incomplete Work Declaration was not as helpful as it might have been, because in support of his claim he submitted about 26 documents which comprised invoices, quotations, bank documents proving payment, and receipts. The exhibited documents were not attributed to any particular item of incomplete work. Some of the items were self-explanatory, but a number were not. About four of them appeared to be relevant to the completion of the external stormwater drain connection. As this claim has been dismissed, the result is at about 20% of the documentation was irrelevant.

1. Mr White referred to incomplete works at pages 28, 29, 30 and 31 of his report dated 24 February 2022. In respect of each item, Mr White set out a costing based on materials used (where applicable) and labour. From those items where a single hour of labour was claimed, it appears that Mr White used the following labour rates:
   • electrician- $62.00 per hour
   • painter - $62.00 per hour
   • caulker - $62.00 per hour
   • locksmith - $62.00 per hour

In my view, bearing in mind the rates were used in an assessment of damages prepared in February 2022, these rates are reasonable.

TREATMENT OF BUILDER'S MARGIN, CONTINGENCY AND GST

1. It is necessary to make a comment about Mr White's treatment of builder's margin, contingency and GST. In assessing the cost to rectify the defects, he added to the base cost of materials and labour a loading of 25% to cover builder's margin, 10% for contingency and 10% for GST. In assessing the cost of completion of the contract works, he added builder's margin of 20%, and GST of 10% but did not apply contingency.

COST OF COMPLETION TO BE ASSESSED FROM POINT OF VIEW OF THE BUILDER

1. As explained at the hearing, and confirmed in the reasons of 8 August 2023 at [66], as the owners unlawfully terminated the contract, the builder is entitled to be put in the same position as it would have been had the contract been fully performed. This means that the builder is entitled to be paid the full contract price, but at the same time must credit to the owners the cost to the builder of completing the work under the contract and also rectifying defects in the works. These assessments must be made using prices for labour and materials current at the time of termination of the contract, namely April 2022.
2. In an endeavour to assist the parties to understand the practical implication of this principle, the Tribunal, when it fixed the final hearing for 4 July 2025 (before the date was changed to 1 July 2025), observed that its decision in Nerwa Constructions Pty Ltd v Koka (Building and Property) [2025] VCAT 79 ('Nerwa') might be relevant to the assessment of damages.
3. In Nerwa, the Tribunal determined that the owner had wrongfully terminated the contract. In assessing what the cost of rectifying defects in the works or completing the works under the contract would have been to the builder at the time of termination of the contract in June 2019, the Tribunal considered that the best evidence regarding the cost of rectification or completion of a number of items was contained in the evidence of the owner's expert, Mr Buchanan.
4. When assessing the cost of rectification of defects and completion of the contract works, Mr Buchanan had proceeded on the basis that the works were to be carried out by an independent contractor rather than to be carried out by the builder. The significance of this was that an independent contractor would add a loading for preliminaries and builder's margin. Mr Buchanan's worksheets disclosed the addition of a loading of 10% for preliminaries and a separate loading of 15% for builder's margin on top of the base cost of materials and labour. I formed the view that the appropriate way to deal with these markups was to strip them out from Mr Buchanan's costings. The simplest way to do this was to take 25% off his total assessment.[1]
5. In the present case, the builder did not present evidence as to the cost of completion of the works as at the time of termination of the contract in April 2022. The best evidence of this was to be found in Mr White's costings, which had been prepared in February 2022. As noted above, Mr White had proposed adding to the base cost of materials and labour 20% for builder's margin and 10% for GST. I will proceed on the basis of Mr White's base assessments of the cost of materials and labour, but I will not apply to any builder's margin. I will apply GST of 10% where appropriate.

1. I now set out the list of items of incomplete work extracted from Mr White's report which was set out in the reasons of 8 August 2023.
2. The incomplete items according to Mr White were:

• Preliminaries
• Site preparation
• Plumber-water tank
• Solar HWS
• Roof plumber
• Stormwater
• Mechanical
• Electrician
• Plumbers fit-out
• Stairs
• Internal fix
• Kitchen
• Laundry
• WC
• Bathroom
• Laundry
• Toilet
• Painting
• Polished floors
• Front porch render
• Brickwork
• Driveway
• Landscaping
• Front porch tiling
• PC items
• Builders clean

• Double glazed window
• Painting inside garage
• External paint
• Stormwater connection
• Remove concrete path
• Hire of jackhammer
• Bin
• New concrete path
• Concrete premix
• New concrete path
• Install downpipes
• Bin
• Upgrade electrical meter box and switchboard

1. Mr Song exhibited what appear to be 4 relevant documents to his Incomplete Work Declaration. The first was in receipt issued by P & F Prost (Vic) Pty Ltd ('Prost') dated 12 August 2022 in the sum of $40,000.00. The second was received from Prost dated 15 August 2022 in the sum of $800.00. The third was an account from Di Mase Berry & Co Pty Ltd dated March 2023 in the sum of $990.00. The relevant work was identification of cover levels and inverter levels of all drainage pits. The fourth was an invoice from R & S Grating dated 11 August 2022 in relation to the provision of a galvanised trench and a galvanised trench grate and ancillary items, plus delivery. The total charge was $555.81.
2. As noted in the reasons, the stormwater drainage can be dealt with summarily, because I have found that the builder was not responsible for taking the stormwater drain installed on the site out to the Melbourne Water asset in the street. Accordingly, this was not an item of incomplete work.

1. The preliminaries envisaged by Mr White included transfer of permits to a new builder. Mr Song exhibited to his Incomplete Work Declaration a tax invoice issued by BSP Melbourne Pty Ltd ('BSP') relating to the construction of a dwelling, dated 21 June 2022, concerning a building permit fee, an inspection, lodgement with the Council, and a 'VBA' levy, totalling $801.70. On the basis of this invoice, I will award this sum to the owners.
2. The next document exhibited by Mr Song to his Incomplete Work Declaration was an invoice for $149.00 from Edway Training Pty Ltd relating to a white card issued on 21 April 2022. This invoice relates to the compulsory training concerning Occupational Health & Safety which Mr Song would have had to undertake in order to obtain registration as an owner builder. I will allow this sum to the owners.
3. Insurance may not have been taken out by Mr Song when he became owner builder. In the event, no insurance invoice was exhibited, so nothing will be allowed for this item.

1. Mr White opined that a site clean would be necessary and estimated the cost at $500.00. This is one of the items in respect of which the owners did not keep timesheets. There is evidence from Mr Song that he spent time cleaning the windows and doors. It is not a stretch of the imagination to envisage that when the builder was terminated in the course of the job, the site would have required a clean up. I am satisfied, on the balance of probabilities, that this would have been the case. The builder did not make any submission regarding the site clean. I will adopt Mr White's costing of $500.00 and award that sum to the owners.

1. Mr White allowed $50.00 for covering one of the pits. Mr Song exhibited to his Incomplete Work Declaration an invoice from Bunnings dated 15 October 2022 for a storm pit in the sum of $158.22. I will allow this cost to the owners.

1. Mr White opined that the owners would incur a charge of $400.00 in relation to a bin. I accept that it would have been necessary for rubbish removal following the site clean up. $400.00 is a reasonable allowance for a small bin, in my experience, and I will allow this sum to the owners.

1. The water tank is positioned on the eastern side of the new townhouse at the rear. The owners' complaint was that the plumbing work was incomplete. The parties were given leave to provide further evidence about this item concerning both liability and the cost to complete using April 2022 prices. I now address the available evidence relating to a number of aspects of the issue.

1. Mr Song exhibited to his Incomplete Work affidavit an invoice from P C Paving & Concrete $1,000.00 dated 16 July 2022 relating to a concrete base for the water tank. This item was allowed for by Mr White. His costing for materials was $350.00, and for labour $600.00, a total of $950.00. This is very close to the actual cost incurred. I will allow $1,000.00 to the owners for this item.

1. Mr White allowed $200.00 for labour to install the water tank in position. I accept this work is necessary. Despite a lack of timesheet evidence from the owners, I accept $200.00 as a reasonable figure, and will award this sum.

1. Mr White identified a number of activities necessary to set the water tank up. The activities include connecting pumps to toilets, running internal stormwater drains from the downpipes, running internal stormwater drains to paved areas and providing plastic pits and providing garden taps. These activities all require a licensed plumber.
2. The builder, in its September 2023 submissions, acknowledged that the connection of the water tank to the plumbing remained to be completed when the contract was terminated.
3. No invoices were tendered by the owners at the hearing on 1 July 2025 which suggests that at the time of the hearing the work had not been done.
4. Mr Voja Mitevski deposed at the hearing that the down pipes had been connected to the stormwater system within the property boundary and that surface drainage to the retention pits had been installed. The builder restated that this was the position in its submissions of September 2023, confirming that all the underground stormwater pipes had been connected within the site. I find this evidence is credible, given that the contract was not terminated until 8 April 2022: Mr White inspected the property on 8 February 2022. In other words, it is quite possible the builder completed some of the required plumbing work before the contract was terminated. For this reason, I disallow the claims relating to the connection of the downpipes to the stormwater system and the surface drainage pits.
5. However, it is necessary to deal with the remaining items identified by Mr White. These were setting the water tank up by connecting it to pumps from the toilets, and the installation of garden taps. Significantly, the builder did not contend in its submissions of September 2023 that items had been completed.
6. In respect with the connection of the pumps, Mr White allowed $800.00 for the cost of labour, which I regarded as reasonable for a plumber. I will allow this sum. GST of $80.00 will also be allowed, bringing the total to $880.00.
7. For the provision of garden taps, Mr White allowed $50.00 for materials, $500.00 for a plumber, and $1,200.00 for hand excavation of trenches. On the basis of Mr White's evidence, I will allow $1,750.00 in respect of this item. GST of $175.00 will be allowed also, bringing the award to $1,925.00.

1. This item has been dealt with above as a defect. No further discussion is required.

1. Mr White allowed $800.00 for installation of downpipes inclusive of labour and materials. As noted above, Mr Voja Mitevski deposed at the hearing that the downpipes had been connected to the stormwater system, and I have accepted this evidence. Accordingly, a further allowance for a roof plumber to install the downpipes is not warranted.
2. A second reason for rejecting the claim is that no invoice was submitted by the owners in relation to this work. I confirm that this claim is dismissed.

1. The issue here is not the external stormwater connection issue, which has been dealt with. Rather, Mr White considers that the downpipes had not been connected to the stormwater system installed within the property boundary. Mr White also opined that surface drainage to the retention pits must be installed. Mr Voja Mitevski deposed at the hearing that these items had been attended to, and I have accepted this evidence. The parties were given leave to provide further evidence about both liability and quantum. The owners have submitted no further evidence. This claim is dismissed.

1. Mr White opined that cooling and heating vents had not been installed and also that the ducted heating vents had not been installed. Mr Voja Mitevski deposed at the hearing, through an interpreter, that the cooling and heating vents had been installed. However, the builder in its submissions of September 2023 clarified that it was only the heating ducts that had been installed, but the vent grills on the ceilings had not been installed.
2. Mr Song exhibited to his Incomplete Work Declaration an invoice from Able Heating & Cooling dated 8 December 2022 in the sum of $1,280.00 inclusive of GST in respect of the supply and installation of grills for air-conditioning and heating, fitting controls and testing the units. Mr Song provided proof of payment of this invoice.
3. I accept that this work was carried out, and regard the invoice as reasonable. I will allow $1,280.00 inclusive of GST in respect of this item.

1. Mr White opined that the electrical lights were yet to be fitted off and that the power board has to be installed. Telecom, TV antenna and TV connection points also had to be installed. Power also had to be run underground from the mains to the new house. The total assessment of the work by Mr White, inclusive of materials and labour by an electrician, was $4,008.00.
2. Mr Tony Mitevski deposed at the hearing that these items had been attended to. The parties were given leave to put in further evidence about both liability and quantum regarding electrical issues.
3. In its submissions about incomplete work of September 2023, the builder confirmed that the power board had been installed and that the power had been run underground from the mains to the new house. I interpose to comment that the builder must here have been referring to the power board in the old house, because it was from the old house that power was run to the new house.
4. Importantly, in its submissions of September 2023, the builder acknowledged that light fittings and power points and switches remained to be performed at the completion stage.
5. Indirect evidence that the electrical works remained to be completed when the builder was terminated is to be found in the invoice from Able Heating & Cooling referred to above, which notes that, together with the final gas connection, 'electrics' are to be completed by the owners.
6. Direct evidence regarding the cost of completing the electrical works is to be found in the form of a quotation from JODS Electrical Pty Ltd ('JODS') in the sum of $6,050.00, which has been signed in Chinese characters (presumably by Mr Song) on 17 July 2022. Mr Song also provided proof of payment.
7. On the basis of Mr White's opinion regarding the need to complete the electrical works, and the quotation from JODS which I am satisfied was paid by the owners, I allow $6,050.00 in respect of this item.

1. Mr White opined that the gas supply, the fitting out of all plumbing fixtures to the rear unit and connection to the water mains had to be done. Mr Voja Mitevski deposed at the hearing that this work has been done. The builder maintained its position that the fit off had been completed in its submissions of September 2023.
2. My understanding following the site inspection was that this work had been done as the new townhouse was being occupied. However, my understanding is not determinative of the issue as at the time of termination, because my site inspection took place in August 2023, long after Mr White's inspection.
3. The owners were given leave to put in further evidence about the matter. They were directed to present evidence about any payment made for the work. If the builder had performed the work, the builder was to put in evidence about that.
4. In the event, only the owners submitted further evidence. Specifically, Mr Song exhibited to his Incomplete Work Declaration a quotation from Genuine Plumbing & Drainage Pty Ltd in the sum of $6,600.00 inclusive of GST in connection with the fit off of the WC, basins, kitchen, shower and laundry, installation of cooktop, hot water service, dishwasher and water tank and installation of rollovers to downpipes.
5. In the absence of any responsive submission or evidence from the builder, I allow $6,600.00 inclusive of GST for the plumber's fit off.
6. A related invoice was also submitted by Mr Song. This was an invoice from Serious Investment Group Pty Ltd, a distributor for Toto, in respect of the supply of two Umbria closed couple pans, and one round soft closed seat. The total of the invoice is $1,265.00 inclusive of GST. I will allow this sum to the owners.

1. Mr White opined that the stairs still required to be polished, and allowed a rate of $62.00 per step, a total of $754.00 exclusive of GST. In the absence of any contrary evidence or submission from the builder, I allow this claim plus GST. The total allowed, accordingly, is $829.40.
2. Mr White also opined that nonslip strips needed to be placed on the treads at $15.00 a step. For 12 steps the total was $180.00. With GST, the total is $198.00. I will allow this figure.

1. Mr White considered that several items required attention. A roof access cover had to be installed. He allowed $5.00 for materials and $31.00 for labour, a total $36.00. I accept these figures. With GST, the total is $39.60. I will award this sum.
2. Mr White also opined that the front door lock required installation. He allowed $62.00, which appears to me to be very reasonable for the attendance of a locksmith. I will allow $62.00 plus GST, a total of $68.20.
3. Mr White also considered that 8 internal door handles had to be installed. At $62.00 per door handle, the total allowance is $496.00, plus GST, a total of $545.60. I allow this claim.

1. Mr White opined that the caulking remained to be done in the kitchen. He allowed $15.00 for silicon, and two hours labour of $104.00 per hour, a total of $208.00. I calculate total of $223.00, in contradistinction to Mr White's calculation of $238.00. I will allow $223.00 plus GST, a total of $245.30.

1. Mr White noted that the clothes dryer required an exhaust duct. He allowed $150.00 for materials, and $248.00 for labour, a total of $398.00. I will allow this sum plus GST, which brings the total up to $437.80.
2. The next issue was a missing external clothes line. Mr White allowed $248.00 for installation. I will allow this claim without GST, as there is no evidence that an independent contractor did the work.
3. The remaining issue in the laundry was a missing shower screen. Mr White allowed $300.00 plus GST for the screen inclusive installation. Liability is not an issue, because Ms Talevski conceded at the hearing that the bathroom was not finished. I regard an allowance of $330.00 inclusive of GST for the supply and installation of a shower screen to be very reasonable. I will allow this claim.

1. Mr White opined that caulking had to be completed. He allowed $10.00 for materials and $62.00 for labour, a total of $72.00, exclusive of GST. These figures are reasonable and I will allow a total of $79.20 inclusive of GST for this claim.

1. There are a number of items relating to the bathroom. Mr White allowed $31.00 for the placing of a toilet roll holder. I would have had no hesitation in allowing this figure save for the fact that the installation of 2 toilet roll holders was included in the invoice of a firm called Golden Carpentry, which rendered an invoice for a number of items totalling $500.00. To allow this figure of $31.00 separately would enable the owners to claim for the same item twice. Accordingly, this particular claim is disallowed.
2. Mr White opined that it would cost $248.00 to supply and install a shower screen. I regard this figure as eminently reasonable, even when GST of $24.80 is added. I will allow $272.80 inclusive of GST.
3. Mr White assessed the cost of caulking at $52.00 per hour, a total of $124.00. I regard this figure as reasonable, and will allow it together with GST of $12.40, a total of $136.40.
4. In respect of a missing towel rail, Mr White opined that an allowance of $31.00 was appropriate. I accept this figure and will allow it plus GST, a total of $34.10.
5. Mr White again allowed $31.00 for a missing toilet roll holder. This appears to be an error as there is only one toilet roll holder in the bathroom. This particular claim is disallowed.
6. The next item is a missing mirror. Mr White allowed $62.00 for the supply and installation of a mirror. I will allow this plus GST, a total of $68.20.
7. As the exhaust fan was not ducted to the exterior, Mr White allowed $150.00 for the acquisition of an exhaust fan and $300.00 for the necessary roof preparation, a total of $450.00. I allow this total plus GST, a grand total of $495.00, for this claim.
8. Mr White allowed $100.00 for a harness. This will be related to safe access at height. The item is claimed separately by Mr White, and is dealt with below. No allowance will be made in connection with the fitting of an exhaust fan to the bathroom.

1. As in the bathroom, Mr White allowed $150.00 for an exhaust duct plus $300.00 for installation, a total of $450.00. I will allow $495.00 inclusive of GST for this item.
2. Mr White also allowed $398.00 for an exhaust duct. I will reject this claim as it appears to be an exercise in double counting.
3. Mr White allowed $62.00 for the installation of a door lock. A lock is appropriate in a bathroom, and the figure is reasonable. I will allow $68.20 inclusive of GST.
4. Mr White assessed the cost of necessary caulking at $104.00. I will accept this figure plus GST, and will allow $114.40 for this item.

1. Mr White allowed $31.00 for the installation of a toilet roll holder. He also allowed $62.00 for caulking. I do not understand these claims as allowances have already been made in respect of the water closet and for the toilet in the bathroom.

1. In respect of painting Mr White allowed for both painting and for the erection of scaffolding. He assessed the cost of painting at $7,000.00, which I regard as reasonable for painting the interior and exterior of a house in 2022. I will allow $7,000.00 plus GST, a total of $7,700.00.
2. Mr White also allowed $2,000.00 for the supply and erection of scaffolding. This figure was not challenged by the builder, and will I allow it plus GST, total of $2,200.00.

1. Mr White assessed the cost of polishing the floors at $2,600.00. I have recorded above that when I inspected the house I considered that the floors looked good. This work had clearly been done. I will allow $2,600.00 plus GST, a total of $2,860.00.

1. Mr White assessed the cost of rendering the façade and the square column with a base coat at $568.00, comprising $70.00 for materials and $498.00 for labour. The cost of rendering these areas with a topcoat was costed at $618.00. The labour figure was the same but the cost of materials increased to $120.00. The total of $568.00 plus $618.00 is $1,186.00. I will allow this total plus GST, a grand total of $1,304.60.

1. Mr White assessed the cost of necessary caulking of the brickwork at $11.60 per l/m, at $498.00. He made a separate allowance of $250.00 for materials. The total is $748.00. I will allow this figure plus GST, a grand total of $822.80.

1. Mr White opined that the builder had not constructed a plain concrete driveway with F62. He assessed the cost of constructing the driveway at $16,000.00 plus GST. Ancillary items included by Mr White included $300.00 for crushed rock, $1,000.00 labour for preparation, $700.00 for bin hire, $3,000.00 for 27 m² of permeable concrete, and $800.00 for a slab for a shed. The total assessment of Mr White was $22,600.00 plus GST, a total of $24,860.00.
2. Mr Song exhibited in his Incomplete Work Declaration an invoice from Concept Concrete dated 14 September 2022 for a total sum of $23,722.00 inclusive of GST. This included a 100 mm thick area of plain concrete paving at a cost of $13,000.00 plus ancillary items including 28 m² of permeable concrete, and a machinery charge and labour for preparation of $1,300.00. There was a separate allowance for plumbing works of $749.10. The need for the plumbing work was not explained, and I put this item to one side.
3. The actual cost of the driveway work, without the plumbing, is $1,122.00 more than Mr White's assessment, but I will allow the actual cost of $23,722.00, exclusive of GST as I am satisfied that the works plus GST were paid for. With GST, the total amount I will allow is $26,094.20.

1. The contract scope of works included 'Landscaping and/or paved areas required by Plan'. Mr White allowed $3,000.00 for landscaping. Although no detail was given as to what this figure was to cover, it was not contested. I allow $3,000.00 plus GST, a total of $3,300.00 for landscaping.
2. Mr White allowed for other items including feature rocks $60.00, top soil $250.00, plants $600.00, tan bark $400.00, turf / grass $300.00, bin $400.00, garden shed $900.00, bike rack $200.00, gate and fence between buildings $900.00, mailboxes $600.00, meter box surround $600.00, gas meter bollard $300.00. Some of these features are not readily apparent from the contractual plans.
3. Mr Song exhibited to his Incomplete Work Declaration an invoice from Palm Place Nursery dated 10 November 2022 for $664.00 (presumably inclusive of GST). This covered soil, at $325.00, a delivery charge of $59.00, and a further figure for '1.5m White Ice' (presumably roses). I will not allow this figure, as I am allowing $3,300.00 for landscaping on the basis of Mr White's assessment.

1. Mr White allowed $70.00 materials for the provision of adhesive and grout, and $700.00 for labour involved in tiling the front porch. A further $104.00 was allowed for grouting the front porch. The total of these items, exclusive of GST, is $874.00. With GST, the total is $961.40. I will allow this figure.

1. The owners claim a very large number of PC items and seek a contract sum adjustment of $19,825.00 exclusive of GST in their favour.
2. Prime cost and provisional sums are dealt with in the contract at clause 33. Pursuant to clause 33.4, if the actual price of supplying a prime cost item or a provisional sum item is less than the allowance, the difference is to be deducted from the contract price. On the other hand, if the actual price is more than the allowance, the difference plus a stipulated margin on the difference is to be added to the contract sum.
3. The prime cost and provisional sum items listed by Mr White are as follows:
   • Tiles $120.00
   • Down lights x 25 $625.00
   • Shower screens $900.00 x 2 $1,800.00
   • Shower rose or head $80.00 $160.00
   • Pendant lights $160.00
   • External light x 5 $125.00
   • Smoke detectors x 2 $180.00
   • Exhaust fans x 2 $100.00
   • Floor tiles $120.00
   • Vanity tap $75.00
   • Mirror $250.00
   • Towel rails x 2 $160.00
   • Toilet roll holders x 2 $100.00
   • Cupboard handles x 26 $260.00
   • Sink tap $120.00
   • Oven $800.00
   • Hot plates $600.00
   • Range hood x 2 $800.00
   • Laundry tap $100.00
   • Clothes line $300.00
   • Washing machine taps $90.00
   • Solar Hot water service $7,000.00
   • Water tank $2,500.00 1 $2,500.00
   • Water tank pump $400.00
   • Light switches $150.00
   • Power points $150.00
   • TV antenna $250.00
   • Antenna points x 2 $50.00 $100.00
   • Entrance door lock $200.00
   • Privacy locks x 2 $110.00
   • Door handle standard latches x 3 $120.00
   • Carpet $1,800.00
4. The basis upon which most of these items were inserted by Mr White in a list of incomplete work is not clear.
5. The prime cost and provisional sums are found in Schedule 2 of the contract. The list of prime cost items is limited to 'kitchen appliances, oven, stovetop & range hood' and 'tiles'. I note that the list of prime cost items prepared by Mr White included:

(a) the oven: $800.00 expended against an allowance of $800.00;

(b) hotplates: $600.00 expended against an allowance of $600.00;

(c) range hood: $800.00 expended against an allowance of $400.00.

1. The parties were given leave to put on evidence regarding these items. None was forthcoming.
2. The total allowance for the kitchen appliances in Schedule 2 for the oven, the stove top, and the range hood was $2,000.00. The total cost of these items identified by Mr White above is $2,200.00. It may be that an adjustment of $200.00 plus margin ought to be made in the builder's favour. However, the builder has not claimed this.
3. A second prime cost item stipulated in Schedule 2 for 'tiles'. An allowance is made of $40.00 per m². This appears to be exactly what has been allowed by Mr White.
4. The only provisional sum stated in Schedule 2 is labour for the tiles. This is allowed at $50.00 per m². If this is the item in respect of which the owners seek an adjustment, this is not made clear.
5. For these reasons, I allow nothing for prime cost and provisional sum item adjustments to the owners.
6. The builder, in its final submissions regarding incomplete work, noted that a number of PC items had been purchased by it and had been placed in storage but had not been installed at the time of termination. They included two toilets at a cost of $2,600.00 each, taps for the laundry, vanity, kitchen and shower at a cost of approximately $800.00, door handles at a cost of approximately $440.00, a laundry sink at a cost of about $350.00, and exhaust fans costed at about $150.00. The total estimated cost was $4,340.00. As these items have been stored offsite by the builder, the owners have not taken possession. After the termination of the contract the builder would have been at liberty to return the items to the supplier (if possible) or to use them on another project, or sell them. In any event, no award to either the builder or the owners in respect of these items is warranted.

1. Mr White allowed $800.00 for a builder's clean. This presumably is a separate cleanup of the site to that for which an allowance of $500.00 has been claimed as part of the owner's site preparation costs. Given that $500.00 has been allowed already for the first claim, I will allow a further $300.00 only in respect of the final builder's clean. As the work is almost certainly to be carried out by the owners personally, no GST will be allowed.

1. Mr White allowed $560.00 in respect of a window clean. The window clean has already been allowed for as part of the site preparation costs. This claim is dismissed.

1. Mr White allows $100.00 for a harness to facilitate working at height. A harness would seem to be unnecessary as an allowance has been made for a scaffold already. This claim is not accepted.

Summary of damages allowed for incomplete work in the new house

1. The total assessment of the cost of completing the contracted work relating to the new townhouse is $71,457.12 comprising the following allowances:
   • building permit fee, inspection, and lodgement with Council, and VBA levy: $801.70
   • health and safety (white card) training: $149.00
   • site clean: $500.00
   • covering one of the pits: $158.22
   • bin: $400.00
   • concrete base for the water tank: $1,000.00
   • positioning water tank: $200.00
   • connection of the pumps: $880.00
   • provision of garden taps: $1,925.00
   • installation of grills, fitting controls and testing the units: $1,280.00
   • electrical works: $6,050.00
   • plumber's fit off: $6,600.00
   • toilet pans and seat: $1,265.00
   • stair polishing: $829.40
   • nonslip strips on the treads: $198.00
   • roof access cover: $39.60
   • front door lock: $68.20
   • internal door handles: $545.60
   • caulking in the kitchen: $245.30
   • clothes dryer exhaust duct: $437.80
   • external clothes line: $248.00
   • laundry shower screen: $330.00
   • caulking in laundry: $79.20
   • bathroom shower screen: $272.80
   • caulking in bathroom: $136.40
   • towel rail: $34.10
   • mirror: $68.20
   • bathroom exhaust fan duct: $495.00
   • laundry exhaust duct: $495.00
   • installation of door lock in bathroom: $68.20
   • caulking: $114.40
   • painting: $7,700.00
   • scaffolding: $2,200.00
   • floor polishing: $2,860.00
   • rendering the façade and the square column: $1,304.60
   • caulking of the brickwork: $822.80
   • driveway: $26,094.20
   • landscaping $3,300.00
   • tiling and grouting the front porch: $961.40
   • final builder's clean: $300.00

1. The preliminaries envisaged by Mr White included transfer of permits to a new builder. Mr Song exhibited a second invoice from BSP, this time relating to alterations and additions to a dwelling, dated 22 June 2022. This was for a building permit fee, and inspection, and lodgement with the Council. The total of the invoice was $673.70. I will also award this sum to the owners.

1. Mr White allowed $1,200.00 for the installation of a double glazed window. The figure comprised $800.00 for the supply of the window, and $400.00 for installation. The supply of the window will attract GST, as will the work of a contractor to install the window. $1,200.00 plus GST of $120.00 is awarded, a total of $1,320.00.

1. Mr White considered that the interior of the garage remained to be painted. He allowed $1,536.00 for this. The figure was not challenged, and I will allow it. As the work is likely to be carried out by professional painter, GST will be attracted. The total award will be $1,689.60.

1. Mr White estimated that the cost to paint the external fascia would be $658.00. This figure was not challenged and I will allow it. GST is also to be included. The total award will be $723.80.

1. Mr White allowed for the laying of the 25lm of pipe to connect the storm water. He allowed $300.00 for the provision of 25lm pipe, and $600.00 for labour. These figures suggest that the allowance is for connection of the downpipes to the drains, rather than taking the stormwater from the existing house to the street. This claim will be allowed. As a contractor will be required, $900.00 plus $90.00 GST will be allowed, a total of $990.00.

1. Mr White allowed a number of items relating to the removal a path along the side of the existing house including labour, hire of a jackhammer and hire of a bin for rubbish removal. He also allowed the creation of two new paths. My reading of the specification indicates that although an allowance was made for the creation of the driveway, a storage shed and a clothesline, there was no allowance for paths. The path claim is not allowed.

1. Mr White allowed for the installation of new downpipes. $100.00 was allowed for materials, and $200.00 for labour, a total of $300.00. As the services of a plumber will be required, GST of $30.00 will be allowed on labour and materials. The total award will be $330.00.

1. Mr White allowed $400.00 for the hire of a bin. This presumably related to the cost of removing offcuts and debris from the site at the completion of the project after the builder's final clean. This allowance appears reasonable, and the claim will be allowed with GST, a total of $440.00.

1. Mr White allowed $2,500.00 exclusive of GST in connection with the upgrading of the electrical meter box and the switchboard. In the Reasons of 8 August 2023, I discussed the electrical work subcontract relating to the existing house. The relevant contractor, Mr Vance Stankovic gave evidence that he had caried out electrical work in the house. The work discussed with Mr Voja Mitevski included the relocation of the power board in the original house and taking power to the new house. The builder, in its submissions about incomplete work dated 25 September 2023, confirmed that the power board was installed and that power was run underground from the mains to the new house. There is no evidence that the upgrading of the meter box and the switchboard was discussed by Mr Voja Mitevski with Mr Stankovic. These works are not listed in the specification. The claim for upgrading the meter box and switchboard is dismissed.

1. The last item listed by Mr White is the connection of the stormwater system with the Melbourne Water drain in the street. This claim was dismissed in the Reasons of August 2023. The owners unsuccessfully appealed that determination to the Supreme Court. The matter is closed as far as the Tribunal is concerned.

Summary of awards made for incomplete works in the existing house

1. The total assessment of the cost of completing the contracted work relating to the new townhouse is $6,167.10 comprising the following allowances:
   • building permit fee, inspection, lodgement with Council: $673.70
   • double glazed window: $1,320.00
   • painting inside garage: $1,689.60
   • painting external fascia: $723.80
   • 25 l/m of pipe to connect the storm water: $990.00
   • installation of new downpipes: $330.00
   • bin: $440.00

1. I have above awarded the following further sums were defects:
   • $2,838.00 in relation to the solar panel issue;[2]
   • $5,141.00 in respect of the shower.[3]
2. I have previously awarded defects the sum of $1,813.00 to the owners in respect of defects.[4] The addition of $2,838.00 and $5,141.00 brings the total award for defects to $9,792.00.

FINAL CONTRACT RECONCILIATION AND SUMMARY OF FINAL ORDERS

1. In the orders made on 8 August 2023 I declared:

(a) the contract made between the owners and the builder includes four pages of civil design prepared by BCE;

(b) the scope of the work under the contract does not require the builder to take the stormwater drain constructed within the site boundary across the site boundary to join the Melbourne Water Stormwater drain in the street;

(c) the scope of the work under the contract includes alterations and additions to the existing house on the site;

(d) the owners' termination of the contract in April 2022 was unlawful;

(e) the owners' claim for liquidated damages for delay must be dismissed;

(f) the builder is entitled to an award in respect of variations of $13,138.00 but its counterclaim is otherwise to be dismissed;

(g) the adjusted contract sum including variations is $403,138.00;

(h) the owners are entitled to have credited against the contract sum, apart from progress payments made against invoices, the following amounts:

(i) $3,000.00 paid in advance in respect of the benchtop variation;

(ii) $2,000.00 paid for kitchen appliances;

(iii) $1,100.00 paid under an order from Domestic Building Dispute Resolution Victoria ('DBDRV') regarding repairs to the front fence; and

(iv) a credit of $4,180.00 in respect of screw piles not installed.

(i) the amount paid or deemed to be paid under the contract by the owners is $361,280.00 leaving a balance due of $41,858.00;

(j) the builder is liable to the owners for defects in the sum of $1,813.00;

(k) the liability of the builder to the owners for damages in respect of incomplete work remains to be assessed at a further hearing;

(l) the liability of the builder to the owners for damages in the nature of interest remains to be assessed.

1. It is now necessary to consider the final monetary orders (excluding any order for damages in the nature of interest, costs and reimbursement of fees) to be made.
2. The starting point is that in the orders of 8 August 2023 I declared that the adjusted contract sum including variations is $403,138.00.
3. The total of the payments made by the owners to the builder under the contract was $351,000.00, comprising the following payments:[5]
   • deposit $19,500.00
   • base stage $39,000.00
   • frame stage $58,500.00
   • lock-up stage $136,500.00
   • fixing $97,500.00
4. When these payments of $351,000.00 are taken away from the adjusted contract sum of $403,138.00, he could be seen that a balance of $52,138.00 remained to be paid.
5. I also declared on 8 August 2023[6] that the owners were entitled to have credited against the contract sum, apart from progress payments made against invoices, a total of $10,280.00, comprising the following amounts:

(a) $3,000.00 paid in advance in respect of the benchtop variation;

(b) $2,000.00 paid for kitchen appliances;

(c) $1,100.00 paid under an order from DBDRV regarding repairs to the front fence; and

(d) a credit of $4,180.00 in respect of screw piles not installed.

1. When this credit is taken into account, it can be seen that a balance of $41,858.00 remained to be paid by the owners to the builder.[7]
2. The owners are entitled to a credit in respect of damages to be paid by the builder in respect of defects. The amount allowed for defects has increased from $1,813.00 to $9,792.00.[8] When $9,792.00 is taken into account, the amount remaining to be paid to the builder is reduced to $32,066.00.
3. I have found above, at [184], that the owners are entitled to damages in relation to incomplete contract work in the new house totalling $71,457.12. When this sum is set off against the amount which is notionally due to the builder, it can be seen that the owners are entitled to payment by the builder of the sum of $39,391.12.
4. Finally, I have found, at [195], that the owners are entitled to damages in relation to incomplete contract work in the existing house totalling $6,167.10. When this sum is added to the sum of $39,391.12, the grand total due to the owners is increased to $45,558.22. I will make an order accordingly.
5. As stated in the orders made on 8 August 2023, damages in the nature of interest remain to be assessed. The builder may be entitled to interest under the contract on the monies found to have been due to it. On the other hand, the owners may also be entitled to an award of interest as they have ultimately been successful.
6. Both parties will be given leave to make an application for damages in the nature of interest within 30 days.
7. Each party will be given leave to make an application for costs or reimbursement of fees.

[1] [2025] VCAT 79, [130].

[5] These payments were listed at [112] of the Reasons dated 8 August 2023, save that the last payment of $97,500.00, which was for the fixing stage, was erroneously described as the frame stage.

1. [7] This sum was identified in Order 1(i) made 8 August 2023.