APPLICANT TheBuildCo.Com.Au Pty Ltd (ACN 624 823 445) (building practitioner)

RESPONDENT Ross O'Meara (relevant building surveyor)

INTERESTED PARTY Sandeep Dhaliwal (Building Site owner)

RELEVANT MUNICIPALITY Macedon Ranges Shire Council

BEFORE Members A Maynard (panel chair), G Zuccala and E Morrison

CITATION TheBuildCo.Com.Au Pty Ltd v O'Meara [2025] VBAB 52

Having considered all the submissions and information placed before it, the Building Appeals Board (BAB) determines that:

1. Pursuant to s 149(1)(a) of the Building Act 1993 (the Act), the decision of the Respondent to give a written direction to fix dated 18 December 2024 is affirmed.
2. Pursuant to sch 3, cl 16(3) to the Act, liberty to apply on the question of costs, subject to such liberty being exercised within 14 days from the date of this determination.[1]

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1. TheBuildCo.com.au (the Applicant) was engaged by Mr Sandeep Dhaliwal (the Owner) to build a house on land owned by the Owner at 39 Pearl Court, Kyneton (the Subject Land).
2. On or before 18 December 2025, Mr Ross O'Meara, the relevant building surveyor (Respondent), completed an inspection report which includes details and photographs of items of work that require rectification.
3. The Respondent issued a written direction to fix dated 18 December 2024, under s 37A of the Building Act 1993 (the Act).
4. The written direction to fix (the Direction) listed twelve items of work that did not comply with the Building Regulations 2018 (the Regulations) and did not comply with the approved building permit documentation. The Direction required the builder to do the following actions before the Direction expired on 17 February 2025:

Carry out building work to ensure compliance with the Building Act 1993, Building Regulations 2018 and/or building permit as follows:

1. Remove the existing paving around the perimeter of the dwelling.
2. Replace the paving around the perimeter of the dwelling in accordance with NCC 2019.1 related to height and slope and in accordance with the structural engineers specification.
3. Place the weep holes in accordance with NCC 2019.1 around the base of the dwelling and above the windows.
4. Provide verification from the structural engineer for the as constructed location of the articulation joints.
5. Relocate the drainage pipe in the grassed alfresco area.
6. On 19 December 2024, the Applicant commenced this appeal under s 138A of the Act against the decision of the Respondent to give the Direction.

1. The submissions of the Applicant in summary form are:

(a) The Direction is incorrect and was not given in good faith.

(b) The works alleged to be non-compliant are incomplete.

(c) Any deficiencies in any work will be rectified before completion.

(d) Works are currently suspended due to monies owed by the Owner.

(e) No oral direction to fix was given by the Respondent prior to issuing the Direction.

(f) Little or no attempt was made by the Owner to raise the alleged deficiencies before the Direction was given.

(g) Furthermore, s 37HA of the Act provides that a building surveyor or authorised persons may stay the operation of a direction to fix if the building work is subject to a domestic building work dispute. In circumstances where the Direction was issued after works have been validly suspended, and while there is an obvious and ongoing domestic building work dispute that was known to the Respondent prior to the Direction being given, it is submitted by the Applicant that the giving of the Direction was inappropriate, unfair and prejudicial to the Applicant's rights under the building contract.

1. The submissions of the Respondent in summary form are:

(a) As of 21 January 2025, no domestic building dispute has been lodged under Part 4 of the Domestic Building Contracts Act 1995 to warrant a stay of the Direction.

(b) Builder payments or contractual disputes are not relevant to the non-compliant building work.

(c) An oral direction to fix was not appropriate because the work that required rectification would take more than the seven day timeframe provided in an oral direction to fix.

(d) The Respondent considers that the Owner did raise the deficiencies before the Direction was given. He has a copy of an email from the Owner to the Applicant dated 30 November 2024 setting out the deficiencies in the building work.

(e) The Respondent was directed by the Victorian Building Authority to investigate any building non-compliance issues.

THE SUBMISSIONS OF THE OWNER (in summary form).

1. The submissions of the Owner outline his concerns about the failure of the Applicant to provide access to the site for inspection, contractual issues, the quality of the work done and the security of the site.

1. We confirm that our role in this Appeal is to determine whether the Respondent's decision to give the Direction should be affirmed, quashed, varied or set aside. We play no role in determining other issues that might be in dispute between the parties.
2. We note that the Applicant failed to attend the hearing of this Appeal on 13 March 2025.
3. In addition, we note that the Applicant's submission does not address the detail of the building work required by the Direction, except to state that works are incomplete.
4. We have considered the written submission, oral evidence and the report and photographs prepared by the Respondent.
5. We are persuaded by the evidence provided by the Respondent and find that the items of building work listed in the Direction are not simply incomplete items as argued by the Applicant but are work carried out containing deficiencies.
6. We find therefore that the decision to give the Direction should be affirmed.
7. We note that s 37HA of the Act provides that the RBS or an authorised person may stay the operation of a direction to fix if the building work is the subject of a domestic building work dispute and it has been referred for conciliation under Part 4 of the Domestic Building Contracts Act 1995 (the DBCA).
8. No party to this Appeal has provided evidence substantiating that any dispute concerning the building work on the Subject Land has been referred for conciliation under Part 4 of the DBCA.

[1] Clause 17 of Schedule 3 to the Building Act 1993 provides: 'Unless the Building Appeals Board otherwise determines, a party to a proceeding before the Board must bear his, her or its own costs'.