APPLICANTS Belinda Spiteri and Beau Spiteri (Adjoining Property owners)

RESPONDENT Adnan Ramadan (relevant building surveyor)

INTERESTED PARTIES Natt Arian and Hero Arian (Subject Land owners)

SUBJECT LAND 11 Palisades Boulevard, South Morang 3752

CITATION Spiteri & Anor v Ramadan [2025] VBAB 108

1. Having considered all the submissions and information placed before it, the Building Appeals Board determines that it would not be appropriate to award costs in this matter.
2. The proceeding is otherwise dismissed.

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1. With the consent of the parties, the Building Appeals Board (BAB) made orders dated 7 August 2024:

(a) quashing the relevant building surveyor's (RBS) determination under s 87 of the Building Act 1993 (Act);

(b) providing that parties may apply for costs (costs claim), subject to such liberty being exercised by 5 September 2024; and

(c) providing that submissions in reply (if any) by the parties, would need to be filed and served within 3 weeks of receiving the costs claim.

1. On 5 September 2024, the Applicants (Adjoining Owners) sought orders from the BAB 'for costs to be awarded in favour of the Applicants and against the Respondent and Interested Party, in the amount of $8,377.78, however the [BAB] deems appropriate.'

(a) the Owners repeatedly issued deficient versions of the Form 7 to the Adjoining Owners;

(b) the Adjoining Owners, guided by their building surveyor, consistently made their view known, for over two years, that the Form 7 was deficient and because of that any determination of the RBS would be quashed. The various iterations of the deficient Form 7 are as follows:

(i) Form 7 dated 19 November 2021 (received on 21 November 2021);

(ii) Form 7 dated 24 May 2022 (received 25 May 2022);

(iii) Form 7 dated 4 October 2023 (received on 30 October 2023); and

(iv) Form 7 dated 9 July 2024 (received on 2 August 2024).

1. The Adjoining Owners also noted that the matter was further confused and prolonged by the final Form 7 (9 July 2024) being issued after the determination of the RBS dated 3 June 2024. No explanation was provided as to why this Form 7 was issued completely outside the protection works process under the Act, causing the Adjoining Owners to again waste resources and time in considering it.
2. The Adjoining Owners were subsequently forced to commence the proceeding in relation to the determination made by the RBS dated 3 June 2024, notwithstanding the fact that the Owner and the RBS had over two years to properly complete the protection works process in accordance with the Act.
3. The Adjoining Owners submitted that the Interested Parties (Owners) and RBS vexatiously litigated the proceeding.
4. The Adjoining Owners sought costs of $8,377.78 from the Owners and/or the RBS, being:

(a) legal fees - $7,219.30;[1]

(b) fees to the building surveyor - $742.50;

(c) fee to Landata- $39.74; and

(d) fees to the BAB (to bring the proceeding) - $376.24.

1. The RBS opposed costs being awarded against the RBS on the following basis:

(a) the RBS is not the owner and he has no financial responsibility for protection works;

(b) the Adjoining Owners agreed to quash the Form 9, so their cost claim is unnecessary;

(c) there was no delay or misconduct from the RBS in his handling of this matter; and

(d) the law states each party pays their own costs, and there is no reason to depart from this position.

1. The Owners did not provide submissions opposing the costs order.
2. Having regard to the BAB's orders dated 7 August 2024, parties which were served with a Costs Claim were required to file a Defence to Costs Claim by 26 September 2024.
3. The BAB provided a follow up email on 9 October 2024 and a further email (and a text) in January 2025.
4. On 30 January 2025, the Owners advised that the retaining wall, which was the subject of the protection work appeal before the BAB, is not yet built, and noted:

... Therefore, it is fair to discuss the costs once we got permission to rebuild the retaining wall until then there is no point to discuss any costs.

Once more I repeat my request for your esteemed board to rule that the retaining wall to be permitted to be rebuilt as currently it is not safe and could collapse any minute.

1. Following receipt of the email of 30 January 2025, the BAB wrote to all of the parties, noting that there was no matter before the BAB relating to the rebuilding of the retaining wall, and the BAB would not wait until that retaining wall was built.
2. The BAB provided a very short extension of time for submissions, but, as noted above, the Owners did not provide submissions on costs.

1. The BAB has jurisdiction to order that one party pay another party's costs of a Board proceeding. Clause 16(2) of Schedule 3 to the Building Act 1993 (Act) states:

The determination may include any order as to costs that the Building Appeals Board, on the application of a party to the proceeding, considers is just.

Unless the Building Appeals Board otherwise determines, a party to a proceeding before the Board must bear his, her or its own costs.

1. Clause 15(3)(f) of Schedule 3 to the Act provides:

(f) must proceed with as little formality and technicality and with as much expedition as the requirements of this Act and the regulations and the proper consideration of the matter before it permit; and ....

1. In Stewart v Building Practitioners Board,[2] Gillard J considered the operation of cl 17 of sch 3 to the Act. His Honour stated:
   1. ...It is clear from clause 17 that the Board does have power to make an order for costs. It establishes a general rule, namely, that there should be no order as to costs. But, it is clear that the Board may, in appropriate circumstances, refuse to follow the general rule and make an order for costs. One looks in vain to find any criterion to guide the Board when application is made to override the general rule and order costs.
   2. However, in my opinion, the presence of the general rule requires that circumstances must be established to override the general rule, and that means something more than being a successful party.
2. Accordingly, the question of costs is guided by the principle that there must be circumstances which override the general rule in proceedings before the Board; namely, that the parties must bear their own costs, before it will consider making an order for costs.
3. This approach is consistent with the opinion of Bell J in Martin v Fasham Johnson Pty Ltd[3], in discussing the costs discretion of the Victorian Civil and Administrative Tribunal (another 'bear own costs' jurisdiction). In that case, his Honour stated that:
   1. ...The discretion must be exercised judicially, which means that the Tribunal must act fairly, impartially and by reference to relevant considerations and not arbitrarily, capriciously or by reference to irrelevant considerations and not in a manner that frustrates the legislative intent. ...
   2. The Tribunal is a creature of statute and, on the question of costs, it commences from a different starting point. Usually parties must bear their own costs, which no doubt reflects the general object of the Act. That object .... is to promote access to justice generally and to minimise the overall level of costs in tribunal proceedings as far as practicable.
4. Although clause 16(2) of Schedule 3 to the Act does not give any guidance as to what circumstances an order for costs is considered just, the mere fact that the Adjoining Owners were successful in their application does not, of itself, justify a costs order in its favour. There must be circumstances that justify overriding the general rule that the parties bear their own costs.

1. For a costs application, there are two principal issues:

(a) firstly whether costs should be awarded; and

(b) secondly, if cost are awarded, the quantum of those costs.

1. Part 7 of the Act[4] reflects a general position that:

(a) the reasonable costs and expenses incurred by an adjoining owner are reimbursed by the owner; and

(b) the owner must compensate any adjoining owner for inconvenience, loss or damage suffered in connection with the protection work.

1. The scheme reflects that the adjoining owner is forced to be involved in protection works as a result of the building work of the owner, whereas the owner is involved as a result of their decisions regarding the proposed building work.
2. However, it is still necessary to find something more than the mere success of the adjoining owner.
3. Based on the information provided to the BAB, the BAB does not accept the submissions of the Adjoining Owners that the RBS and Owners conducted the proceeding (or the protection works negotiations) vexatiously.
4. If the parties agree to quash a determination under s 87 of the Act, it is often difficult to determine whether:

(a) the s 87 determination was clearly invalid; or

(b) the owner was generously allowing the process to recommence, so that the adjoining owner could present their information again to the RBS, despite there being strong grounds supporting the determination, in law.

1. It would generally be against the intention of the Act for the BAB to conduct a detailed examination of the lawfulness of a s 87 determination, merely to determine a costs application.
2. Further, given that the RBS is an independent officer that exercises statutory power, the RBS generally adopts a 'Hardiman' approach, whereby the effective contradictor is the interested party (ie the adjoining owner), rather than the RBS. As a general observation, costs in an appeal against s 87 determination are more likely to be awarded against the owner (ie interested party) rather than the RBS (despite the RBS making the decision.[5]
3. Based on the submissions of the parties, this did not appear to be a case where the owner had sought to resile from the s 87 determination before the appeal to the BAB was commenced.
4. In this case, based on the submissions and information provided, and the actions of the party, there were reasonable arguments to support a cost order against the Owner:

(a) the Owners issued a fresh Form 7 after the purported s 87 determination was made;

(b) issuing a fresh Form 7 is arguably incompatible with submissions that the s 87 was effective in law and added complexity to the matter;

(c) the issuing of four Form 7s arguably indicated that there have been problems with the process that has been adopted by the Owners, which has resulted in the Adjoining Owners needing to incur expenses, and needing to initiate an appeal against the s 87 determination; and

(d) the Adjoining Owners needed to initiate this appeal, so that an inappropriate s 87 determination was not implemented.

1. However, despite the arguments in support of a costs order, ultimately, the BAB was not persuaded to award costs against the Owners or RBS on this occasion:

(a) given the duty under clause 15(3)(f) of Schedule 3 to the Act, it would be inappropriate for the Board to determine the merits of an application, when there are consent orders to quash a determination - accordingly, it would be inappropriate to assess whether the matters outlined in paragraphs (a) to (d) of clause 31 above are accepted by the Board; and

(b) in the absence of finding for the Adjoining Owner on the matters outlined in paragraphs (a) to (d) of clause 31 above, there is insufficient basis for awarding costs in this matter.

1. Given that the BAB has determined that it would not be appropriate to award costs in this matter, there is no need to consider the quantum of costs.

[1] The Adjoining Owners initially filed an invoice and a 'pre-Bill'. However, in January 2025, with the leave of the BAB, the Adjoining Owners filed an invoice in substitution for the 'pre-Bill' and .

[2] Stewart v Building Practitioners Board [2001] VSC 349.

[3] Martin v Fasham Johnson Pty Ltd [2007] VSC 54.

[4] See, particularly, ss 97 and 98 of the Act.

[5] This is analogous to successful appeals to the Supreme Court against decisions of the BAB, where costs are more likely to be awarded against the active contradictor, rather than against the BAB.