1. Following the 28 February 2025 hearing, the Tribunal received 8 written submissions, as follows:

(a) On 28 February 2025, Mr Turnbull provided a written submission on interest. He seeks $32,463.26 (increased from his initial claim for $10,771.97).

(b) On 14 March 2025, Mr Turnbull provided a written submission on costs, which he seeks on an indemnity basis. Mr Turnbull has not quantified his costs.

(c) On 11 April 2025, the Tribunal received a written submission regarding interest from the owners of units 12, 15, 16, 17 and 18. These individuals are not parties to the proceeding. It is unclear from their submission whether these owners are body corporate committee members. These owners request that no interest be ordered, or that the decision on interest be deferred while they "try to rectify the issues caused by the mismanagement of this matter by" the owners corporation manager ('BCG').

(d) On 16 May 2025, lawyers on behalf of Owners Corporation 1 No. PS 435164S ('OC1') and Owners Corporation 2 No. PS 435164S ('OC2') provided a written submission (in summary) that:

(i) Mr Turnbull named the wrong entity (Owners Corporation No. PS 435164S) as respondent; and

(ii) an adverse order for costs or interest should not be made against either OC1 or OC2 because neither was given proper notice of the proceeding by BCG.

(e) In a reply submission dated 30 May 2025, Mr Turnbull (in summary):

(i) requests that the respondent's name being corrected to OC1 (and he filed an application for orders to this effect);

(ii) submits that "more notice" of the proceeding would not have changed the outcome for OC1;

(iii) submits that OC1's "real complaint is BCG's conduct throughout the proceeding" and OC1 is at liberty to pursue BCG for costs in a separate proceeding; and

(iv) confirms his application for costs and interest.

(f) OC1 and OC2 (via lawyers) provided a written submission on costs dated 9 June 2025. They note Mr Turnbull's application to substitute OC1 as the respondent. They oppose a costs order being made against OC1, submitting that OC1 "should not be held vicariously liable for actions of [BCG]". Further, they say "OC1 contends there has been no relationship of agency between OC1 and BCG in this proceeding".

(g) On 12 June 2025, Peter Razos provided a submission by email, on behalf of "8 members within the Owners Corporation 1". It is not clear from the submission what position Mr Razos holds or which unit/s he owns. However, Mr Turnbull's submission dated 16 June 2025 states that Mr Razos is an executive committee member and owns 8 of the 18 units in the building. Mr Razos submits that OC1 should not be held liable, or alternatively OC1 bears less of the overall liability than OC2.

(h) Mr Turnbull provided a written costs submission dated 16 June 2025 in reply to OC1 and OC2's submission dated 9 June 2025. Mr Turnbull maintains there was agency between OC1 and BCG saying (in summary) that:

(i) OC1 gave express delegated authority to BCG to act as its managing agent before the proceeding; and

(ii) at least one member of the executive committee (being Mr Razos) was aware of the proceeding and gave instructions to BCG from at least 31 May 2024.

1. The issues I must determine in this proceeding are:

(a) Should the named respondent be changed/corrected?

(b) Was the (correct) respondent on notice of the claim and the hearing and afforded the opportunity to respond?

(c) Is the applicant entitled to interest the damages?

(d) If the applicant is entitled to interest, how is interest to be calculated?

(e) Is the applicant entitled to costs in the proceeding?

(f) If the applicant is entitled to costs, what costs?

1. I have determined these issues 'on the basis of documents' (being written submissions outlined above) under section 100 of the VCAT Act.
2. I note that individuals, who are not parties to this proceeding, have provided written submissions ('Individual Submissions'). There was no Tribunal order for submissions to be made by these individuals, and their submissions address matters which are not the subject of the hearing before me. OC1 and OC2 have lawyers who have prepared written submissions for them on the issues. Whilst I note the Individual Submissions, my decision focuses solely on the above issues and is made with regard to the parties' submissions.

SHOULD THE NAMED RESPONDENT BE CHANGED/CORRECTED?

1. The respondent named on Mr Turnbull's application is 'Owners Corporation No. PS 435164S'.
2. It is now apparent that there are two Owners Corporations created by Plan of Subdivision numbered PS 435164S. These are Owners Corporation 1 No. PS 435164S (OC1) and Owners Corporation 2 No. PS 435164S (OC2). In submissions dated 16 May 2025, lawyers representing OC1 and OC2 point out that the named respondent (Owners Corporation No. PS 435164S) is not a legal entity.
3. OC1 and OC2 say Mr Turnbull must identify which of them his claim is against and the relevant entity should be given an opportunity to defend itself.

1. Mr Turnbull says the intended respondent is OC1. In summary, Mr Turnbull says:

(a) Owners Corporation No. PS 435164S is used as "short-hand" for OC1. He says that in "all public documents" OC1 is referred to as Owners Corporation No. PS 435164S. Two example documents highlighted by Mr Turnbull are:

(i) the 2024 AGM minutes which are stated to be "for members of Owners Corporation No. PS 435164S"; and

(ii) the contract appointing the owners corporation manager which identifies the owners corporation as "Plan No. PS 435164S" and appoints a manager for "Owners Corporation No. PS 435164S";

(b) an executive committee was appointed to make decisions for both OC1 and OC2 and the management costs/servicing expenses for OC1 and OC2 are "shared costs" paid by all owners. In support, Mr Turnbull refers to a statement of estimated servicing expenses for "Owners Corporation No. 435164S" which refers to "shared costs"; and

(c) the subject drainage pit is on OC1 common property, and OC1 is responsible for the repair and maintenance of the pit. Neither OC1 nor OC2 disputes that the pit is on OC1 common property. Mr Turnbull says it is therefore clear that the intended respondent was OC1, not OC2.

(d) Mr Turnbull applies for an order amending the name of the respondent to Owners Corporation 1 No. PS 435164S (OC1), under section 127(2) of the VCAT Act. This application is not opposed.

1. I am satisfied that the proper respondent to Mr Turnbull's claim is, and the respondent to his claim was always intended to be, Owners Corporation 1 No. PS 435164S (OC1).
2. Under section 127 of the VCAT Act, I have the power to order any document in a proceeding be amended.
3. I note that, in Riga v Peninsula Home Improvements,[1] Senior Member Walker found that the name of a party is able to be corrected after a proceeding has been heard and determined. In that case, the amendment was made under section 119 of the VCAT Act, but the analysis similarly applies to section 127 (as seen in McNiece v Vella (Building and Property)[2]).
4. In making the correction, Member Walker noted that:

What the Applicants are seeking to do here is not the joinder of any other party but rather, to replace a business name in the title to the application with the name of the entity that that business name represents. That does not involve the replacement of a party with another party.[3]

1. The Courts similarly have drawn this distinction between "correcting a mistake or description" and "changing an identity".[4] In the current matter, the former is sought. Mr Turnbull is not seeking to join a new party or change the identity of the respondent. He seeks to correct an error in the name of the respondent, namely the omission of "1" in between "Owners Corporation" and "No. PS 435164S".
2. I will order this correction under section 127 of the VCAT Act.

WAS OC1 ON NOTICE AND AFFORDED THE OPPORTUNITY TO RESPOND TO THE CLAIM?

1. If the respondent is amended to OC1, OC1 says it "ought then be afforded natural justice to respond to the proceeding". OC1 cites section 98(1)(a) of the VCAT Act which confirms the Tribunal is bound by the rules of natural justice.
2. OC1 says it "did not initially participate in this proceeding because its Owners Corporation Manager, Body Corporate Guardians (BCG), did not give OC1 notice of the proceeding". OC1 says that BCG acted "without authorisation" and says it "should not be held vicariously liable for the actions of their former OC manager when BCG was acting well outside the scope of its authority for OC1".

1. Mr Turnbull says "if the OC's authorised representative, BCG, acted without authority, that is not the fault of the applicant". He says "more notice" would not have changed the outcome for OC1. Mr Turnbull says OC1's "real complaint" is with BCG's conduct.

1. OC1 appears to seek a rehearing of issues of liability and damages. I am functus officio on those issues. In any event, as set out below, I am satisfied that OC1 was afforded natural justice and given the opportunity to defend itself throughout the proceeding.

1. Ms Nola Brooks of BCG was, at all relevant times during this proceeding, the appointed manager of OC1. OC1 and OC2 have confirmed in their written submissions that they appointed Ms Brooks to act as their joint owners corporation manager. I am satisfied on the evidence that BCG was, at least up until and including 28 February 2025, OC1's agent and representative in this proceeding. Since 28 February 2025, in relation to Mr Turnbull's applications for interest and costs, OC1 has been represented in the proceeding by lawyers.
2. OC1 does not submit that Mr Turnbull or the Tribunal failed to communicate with it in relation to the claim and proceeding. OC1's issue appears to be with its appointed manager. Any claims or issues OC1 may have against the owners corporation manager regarding how the proceeding was managed on their behalf and/or whether the manager acted according to her retainer are matters as between those entities. Any such claims would need to be brought separately in an appropriate forum.
3. In their 11 April 2025 submission, the owners of units 12, 15, 17 and 18 (who are not parties to this proceeding) similarly refer to mismanagement and communication failures by BCG. These owners ask that the Tribunal's decision on interest "be deferred" while they "try to rectify issues caused by the mismanagement of this matter by BCG".
4. There may be legitimate concerns or complaints about the way in which OC1's manager handled this proceeding and communicated with owners about the claim and proceeding. However, such concerns or complaints are not a reason for me to defer my decision on interest or costs.

1. I am satisfied that OC1 was afforded natural justice in this proceeding by the Tribunal, having regard to the following:

(a) OC1 was notified of Mr Turnbull's claim. Mr Turnbull's lawyers wrote to the Tribunal on 11 April 2023 confirming they had posted and emailed the Tribunal application (which set out Mr Turnbull's claims) to the respondent, care of its agent BCG. There is no dispute that BCG's address was the address for service for notices to OC1. At the 31 October 2024 hearing, Ms Brooks confirmed the application was sent to BCG's correct address.

(b) As set out above, the owners corporation committee was appointed to make decisions for both OC1 and OC2. BCG forwarded Mr Turnbull's application to the committee. Mr Turnbull's lawyers advised the Tribunal on 11 April 2023:

In relation to the matter the subject of this application, this firm has had email communications with Body Corporate Guardians, including an email from them advising that letters from us had been referred to the owners corporation committee.

(c) It is evident that BCG received notices from the Tribunal about this proceeding, given that:

(i) Ms Brooks appeared on behalf of the respondent at the first directions hearings in this proceeding on 18 April 2023;

(ii) Ms Brooks attended three hearings in this proceeding, on 30 January 2024, 24 April 2024 (injunction hearing) and 31 October 2024, on behalf of the respondent; and

(iii) a solicitor appeared on behalf on the respondent, with Ms Brooks, at the 24 April 2024 injunction hearing.

(d) It is evident that committee members were on notice of the claim and the proceeding, given that:

(i) an owners corporation committee member attended the hearing on 31 October 2024;

(ii) on 23 April 2024, the parties together submitted a "Proposed Minute of Order" including an agreed scope of works for the respondent (Scope of Works). The proposed orders were made by the Tribunal on 24 April 2024 by consent. At the hearing on 31 October 2024, Ms Brooks and the committee member confirmed the Scope of Works was underway; and

(iii) on 24 April 2024, the Tribunal ordered the respondent provide certain documents to all unit owners, including copies of Tribunal orders. The committee member who attended the hearing on 31 October 2024 confirmed she had received the documents.

(e) OC1 was given ample opportunity to file a defence to Mr Turnbull's claim. At the directions hearing on 18 April 2023, which Ms Brooks attended, an order was made for the respondent to file points of defence by 11 August 2023. When no defence was filed by this date, on 6 September 2023 (by orders made 'in chambers') the Tribunal extended the date to 26 September 2023.

(f) At the directions hearing on 24 April 2024, which Ms Brooks and a solicitor attended on behalf of the respondent, in orders made by consent, the Tribunal extended to 8 August 2024 the date by which the respondent was to file material it intended to rely upon for the assessment of damages.

(g) OC1 was given the opportunity to file written submissions on interest and costs, and has done so.

1. Whilst the subject drain is on OC1 common property, there is a suggestion in Individual Submissions that others caused or contributed to the drainage issue. There is no evidence in support of these submissions. In any event, liability in respect of Mr Turnbull's claim was determined on 27 September 2023. That part of the hearing has concluded. It is a matter for the respondent if it wishes to bring a separate claim against any third party. The issues for determination by me are confined to those set out above in paragraph 9 above.
2. Similarly, Individual Submissions seek orders as to how monies payable ought to be levied as between unit owners. This is not a matter for me to decide in this case. The claim in this proceeding is Mr Turnbull's claim against OC1. The decision on liability was made on 27 September 2023. The assessment of damages occurred on 31 October 2024. What is left for me to determine are Mr Turnbull's claims for interest and costs against OC1.
3. Having been satisfied that OC1 was afforded procedural fairness in this proceeding, I now address Mr Turnbull's applications for interest and costs.

1. Mr Turnbull seeks interest of $32,463.26.
2. This comprises interest of $19,638.45 from 23 February 2023 (when he commenced this proceeding) to 28 February 2025 (when I delivered my damages assessment) at the current penalty interest rate of 10% per annum.
3. Mr Turnbull also claims interest of $12,824.81 prior to 23 February 2025, from the date of repairs. He claims interest from 16 July 2018 (last repair invoice) to 23 February 2023 (commencement of this proceeding) at the variable RBA cash rate + 2%, which he submits is comparable to the market rate.

1. Mr Turnbull claims interest pursuant to section 19(3)(ab) of the Water Act 1989 (Vic) ('Water Act') or pursuant to section 165(1)(c) of the Owners Corporation Act 2006 (Vic) ('OC Act').
2. Section 19(3)(ab) of the Water Act provides that, in exercising jurisdiction conferred under section 19(1) (which includes a claim under section 16), the Tribunal may make an order awarding damages in the nature of interest.
3. Section 165(1)(c) of the OC Act provides (relevantly) that, in determining an owners corporation dispute, VCAT may award damages, including exemplary damages and damages in the nature of interest.
4. "Owners corporation dispute" is defined in section 162 of the OC Act to mean "a dispute or other matter arising under the OC Act or the regulations or the rules of an owners corporation that affects an owners corporation" and expressly includes:

(b) an alleged breach by a lot owner or an occupier of a lot of an obligation imposed on that person by this Act or the regulations or the rules of the owners corporation; or

(c) the exercise of a function by a manager in respect of the owners corporation; or

(d) a term of a contract of appointment of the manager of an owners corporation, including whether a term is fair; or

(e) the disposal by an owners corporation of goods abandoned on the common property.

1. Under either of these Acts, the Tribunal has the power to award damages in the nature of interest.
2. In his Points of Claim, Mr Turnbull pleads alternative causes of action under the Water Act and the OC Act. Liability was determined in this proceeding pursuant to section 78 of the VCAT Act, with no hearing on the merits, and the Tribunal did not identify in its order under which of these Acts liability was determined.
3. On available information, I am not persuaded that this proceeding involves an owners corporation dispute under the OC Act. I note that none of the subsections to section 162 of the OC Act appear to apply. Further, on its face, the agreed Scope of Works involves replacement and upgrade of drains, rather than repair or maintenance works by the OC.
4. I am satisfied that the Water Act applies to this claim. There is no dispute between the parties that there was an unreasonable flow of water to Mr Turnbull's unit from the common property drain.
5. On 28 February 2025, I assessed damages pursuant to the Water Act. This is evident from my (oral) decision on damages where I described the claim as involving a "flow of water" onto Mr Turnbull's land from common property.
6. In any event, in the Points of Claim, the first remedy Mr Turnbull seeks (identified as 'A') is compensation under section 16 of the Water Act. Having determined that the Water Act applies and awarded damages under section 19(3)(ab) of the Water Act, it is not necessary for me to determine whether the OC Act also applies. Regardless, any interest award would be the same under either Act.

1. The power, or discretion, of the Tribunal to award interest is limited to situations where the award is "fair".[5]
2. Mr Turnbull seeks interest on the basis that it is more than 6 years since the repair works were completed and, due to the respondent not reimbursing him, he has been out of pocket in the amount of $97,259.62.
3. I am satisfied in the circumstances of this case that it is fair to exercise the discretion to award interest to Mr Turnbull, on the basis that he has suffered loss due to deprivation of the use of the money which was spent on repairs for which the respondent has been found liable.

1. Mr Turnbull seeks interest of $19,638.45 for the period of 23 February 2023 (when he commenced this proceeding) to 28 February 2025 (when I delivered my decision/ assessment), at the current penalty interest rate.
2. In my view, it is fair to award interest on the judgement sum for this period. In assessing damages in the nature of interest, it is appropriate and fair, and consistent with other VCAT decisions (including Izett St Pty Ltd v Applgold Pty Ltd (No 2) (Building and Property)[6]), to calculate interest from the date of commencement of the proceeding.
3. In addition, Mr Turnbull claims interest prior to 23 February 2025, from the date he undertook repairs. He claims interest from 16 July 2018 (last repair invoice) to 23 February 2023 (commencement of proceeding) at the variable RBA cash rate + 2%, which he submits is comparable to the market rate.
4. Mr Turnbull submits that it is "prejudicial" not to award interest on the invoices as he "has carried the cost of those repairs for almost 5 years before, as a last resort, commencement of this VCAT proceeding".
5. I am not persuaded that Mr Turnbull is entitled to damages in the nature of interest for the period between rectification and commencing this proceeding. It was a matter for Mr Turnbull to decide when he commenced this proceeding. OC1 had no part to play in that decision. I make no allowance of interest for that period.
6. This is consistent with the approach taken by Deputy President Riegler in Izett St Pty Ltd v Applgold Pty Ltd (No 2) (Building and Property).[7] Deputy President Riegler noted that, under section 60(1) of the Supreme Court Act 1986 (Vic), the Court awards interest from the commencement of the proceeding to the date of the judgment. Whilst not binding, this section is a relevant factor to consider and Deputy President Riegler saw "no reason why the Tribunal would depart from the practice applicable to the Supreme Court and order damages in the nature of interest from a date that precedes the commencement of the proceeding".[8] Neither do I.

1. Under both the OC Act and Water Act, the Tribunal may award damages in the nature of interest on the rate fixed under section 2 of the Penalty Interest Rates Act 1983 (Vic) ('Penalty Interest Rate Act') or any lesser rate the Tribunal considers appropriate.[9]
2. Mr Turnbull claims interest on the penalty interest rate. The current penalty interest rate fixed by the Attorney-General under section 2 of the Penalty Interest Rate Act is 10% per annum.
3. The respondent has made no submissions on the applicable interest rate.
4. I consider it fair and appropriate to apply the penalty interest rate of 10% per annum in the circumstances of this case, noting that Mr Turnbull paid the rectification costs more than 6 years ago, that there is no dispute the subject drain is on (OC1) common property and the respondent filed no defence in the proceeding, and having regard to interest awards in other cases (including Glenrich Builders Pty Ltd v Modonesi[10] and Izett St Pty Ltd v Applgold Pty Ltd (No 2)[11]).
5. I accept Mr Turnbull's interest calculations of $19,638.45 applying the penalty interest rate.
6. Accordingly, I will order that OC1 pay Mr Turnbull interest of $19,638.45.

1. Mr Turnbull seeks an order that OC1 pay his costs of the proceeding on an indemnity basis. He has not quantified this claim.
2. Mr Turnbull seeks costs pursuant to section 165(1) of the OC Act and sections 109(2) and 109(3)(d) of the VCAT Act.
3. As set out above, I have awarded damages under the Water Act and am not persuaded on available information that this proceeding involves an owners corporation dispute under the OC Act. It is however clear the VCAT Act applies to this proceeding.
4. The primary position under section 109(1) of the VCAT Act is that each party is to bear their own costs in the proceeding.
5. Under section 109(2) the Tribunal may order that a party pay all or a specified part of the costs of another party, but only if the Tribunal is satisfied that it is fair to do so having regard to matters in section 109(3).
6. Mr Turnbull submits that, with regard to:

(a) section 109(3)(a), the respondent unnecessarily disadvantaged him by failing to comply with the Tribunal's orders without reasonable excuse, including not filing a defence, requesting adjournments, and delaying the proceeding;

(b) section 109(3)(b) and as a consequence of its non-compliance, the respondent was responsible for prolonging unreasonably the time taken to complete the proceeding;

(c) the relative strengths of the parties' claims under section 109(3)(c), no claims in the proceedings were contested;

(d) the nature and complexity of the proceeding under section 109(3)(d), which ought to have been straight-forward (being a claim for reimbursement of repair costs) but Mr Turnbull had no option but to commence a proceeding due to non-payment; and

(e) section 109(3)(e) (any other matters), it was reasonable and appropriate for Mr Turnbull to retain lawyers in the circumstances of this case, noting (amongst other things) the compliance issues.

1. I am satisfied that it is fair to award costs against the respondent in this proceeding, having regard to the matters in section 109(3) for these reasons put forward by Mr Turnbull.

1. Mr Turnbull seeks costs on an indemnity basis "because the applicant's costs incurred to date (counsel and solicitors fees) are largely due to the respondent's history of ignoring and failing to comply with VCAT orders throughout the Proceeding, even though it was fully aware of the orders". He says: "The relatively simple complaints were dragged out by the respondent's repeated failure to comply with VCAT orders over 2 years".
2. Rule 1.07 of the Victorian Civil and Administrative Tribunal Rules 2018 (Vic) provides that "Unless the Tribunal otherwise orders, if the Tribunal makes an order as to costs, the applicable scale of costs is the County Court costs scale as defined in Rule 1.13 of Chapter I of the Rules of the County Court". I see no reason in this case to depart from the primary position under Rule 1.07.
3. Nettle JA noted in Pacific Indemnity Underwriting Agency Pty Ltd v Maclaw No 651 Pty Ltd[12] that, there may be "occasions when it is appropriate to award costs in favour of a successful claimant in Domestic Building List proceedings on an indemnity basis. But those occasions will be exceptional".
4. I am not satisfied that exceptional circumstances exist warranting an order for costs on an indemnity basis. I accept Mr Turnbull's submission that OC1 ought to have complied with the Tribunal's orders and ought not to have caused delays. I have taken these matters into account in awarding costs under section 109(3).
5. I will order that OC1 must pay Mr Turnbull's costs in the proceeding, including any reserved costs, to be taxed by the Costs Court on a standard basis in accordance with the County Court scale, in default of agreement.

1. In his reply submissions on costs dated 30 May 2025, Mr Turnbull seeks orders under sections 168(1)(a), (b) and (c) of the OC Act that, when lot owner contributions are levied by OC1, Mr Turnbull not be required to contribute to the payment of any costs order in his favour.
2. Such orders were not sought by Mr Turnbull in his Points of Claim dated 21 February 2023 or at the hearing. It is not appropriate for Mr Turnbull to seek a new order via reply submissions.
3. In any event, the Tribunal is only able to make an order under section168(1) if the Tribunal has made "an order under section 165 relating to the payment of money by the owners corporation". As I have not made an order under section 165 of the OC Act, section 168 of the OC Act would not apply.

[1] [2000] VCAT 56.

[2] [2015] VCAT 271.

[3] [2000] VCAT 56 at [16].

[4] Tran v Ibrahim and Ors [2014] VSC 264), Bridge Shipping Pty Limited v Grand Shipping S.A. [1991] HCA 45; (1991) 173 CLR 231.

[5] Fisher v Trady Enterprises Pty Ltd (Building and Property) [2025] VCAT 887 at [113], Owners Corporation No.1 of PS613436T v LU Simon Builders Pty Ltd (No. 2) (Building and Property) [2019] VCAT 468 at [8].

[6] [2022] VCAT 927.

[9] Section 165(2) OC Act, section 19(4) Water Act.

[10] [2013] VCAT 543.

[11] [2022] VCAT 927.

[12] [2005] VSCA 165.