VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
CIVIL DIVISION
BUILDING AND PROPERTY LIST	
vcat reference No. BP1264/2020	
CATCHWORDS	
Claim by the owner builders of a house they had renovated, who sold the house to purchasers and were held to be liable to the purchasers for damages for breach of warranties implied in the contract of sale by s137 of the Building Act 1993 in a VCAT proceeding, against, amongst others, the building surveyor.
Application by the building surveyor to strike out the owner builders’ fifth iteration of their Points of Claim, or alternatively for summary dismissal of the proceeding against the building surveyor, under s75 of the Victorian Civil and Administrative Tribunal Act 1998.
Moorabool Shire Council v Taitapanui [2004] VSC 239; Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; Plunkett v Portier Pacific Pty Ltd [2024] VCAT 205; Shininggarden Pty Ltd v Omega Building Group Pty Ltd [2024] VSC 583.	

first APPLICANT	Darren Mason	
second applicant	Jessica Mason	
first RESPONDENT	Jacob Cordell	
second respondent	BJP Holdings Pty Ltd (ACN 074 343 285) t/as Inespark	
third respondent	Russell Adams	
fourth respondent	Mr Barry Park	
WHERE HELD	Melbourne	
BEFORE	Deputy President I Lulham	
HEARING TYPE	Application by the second and fourth respondents under section 75(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998	
DATE OF HEARING	25 September 2024	
DATE OF ORDER	8 October 2024	
CITATION	Mason v Cordell (Building and Property) [2024] VCAT 976	

Order
1	The applicants’ claim against the second and fourth respondents is summarily dismissed.
2	The second and fourth respondents’ costs of the proceeding, including this section 75 application, are reserved.
3	The principal registrar is directed to send the second and fourth respondents the next Notice of Directions Hearing which is issued in this case, so that the parties can make submissions on the second and fourth respondents’ costs application and the Tribunal can determine that application.
4	The parties are notified that if costs are awarded to the second and fourth respondents, it is likely that the costs will be assessed by the Costs Court, and as such the second and fourth respondents need not file and serve a bill of costs before that next directions hearing.

I Lulham 
Deputy President			

APPEARANCES:		
For the applicants (respondents to the section 75 application)	
In person	
For the first respondent	In person	
For the second and fourth respondents (applicants in the section 75 application)	

Ms Tran legal practitioner	
For the third respondent	In person	

Reasons
1	Mr and Mrs Mason carried out renovations to a house in suburban Melbourne as owner builders over a number of years. They sold the house to a Mr and Mrs Fraser. The Frasers sued the Masons in VCAT proceeding BP1637/2017, seeking damages for breach of the warranties implied into the contract of sale by s137C of the Building Act 1993, arising from significant defects in the house. In the proceeding the Masons were ordered to pay the Frasers damages of $96,700.00 and $13,071.80, plus interest, costs and filing fees. Mr and Mrs Mason were represented by Counsel in that proceeding.
2	Mr Barry Park, who conducts his business through the company BJP Holdings Pty Ltd, was the building surveyor in respect of some of the Masons’ renovations, which has been described as “the second storey works”. Mr Park and BJP are the fourth and second respondents in this proceeding, but were not parties in BP1637/2017. The Masons had advised the Tribunal in BP1637/2017 that Mr Park would be a witness for them, but in fact they did not call him.
3	For the sake of convenience, I will refer to Mr Park and BJP as “the building surveyor”.
4	Mr and Mrs Mason appealed against parts of VCAT’s Orders, again represented by Counsel: Mason v Fraser [2021] VSC 461.
5	The Supreme Court extended the time for the Masons’ filing of the Notice of Appeal, granted the Masons leave to appeal, and dismissed all grounds of the appeal, apparently with costs.
6	Mr and Mrs Mason issued this VCAT proceeding BP1264/2020 on or about 10 August 2020. They attached Points of Claim to the initiating Application. Mr Park was not a respondent.
7	The Order made at the first directions hearing on 18 March 2021 suggests that the Masons raised the prospect of applying to join Mr Park as a respondent. The Order recites that the Points of Claim were inadequate. The Masons were ordered to file Amended Points of Claim. The effect of paragraphs 2 and 3 of the Order, was that if the Masons articulated a claim against Mr Park in the Amended Points of Claim, that would be treated by the Tribunal as an application to join him as a respondent, which application could be allowed on the papers. The Masons were also ordered to serve on the other parties copies of the two VCAT Orders in proceeding BP1637/2017.
8	Paragraph 3 of the Order directed the Masons to provide quite specific details in the Amended Points of Claim in relation to four aspects of their claim. It is not uncommon for the Tribunal to make orders of that kind where parties are self-represented, as it is in all parties’ interests for a case to proceed efficiently. Where the initiating Application form, or the original Points of Claim, are irregular or fail adequately to articulate the claim sought to be made, the Tribunal can draw the applicant’s attention to the matters which must be addressed.
9	The second directions hearing was held on 17 August 2021, and the Order reveals that the Masons sought an extension of time to file and serve their Amended Points of Claim. The Tribunal joined Mr Parker as fourth respondent, and extended the time for the Amended Points of Claim to 22 October 2021. Paragraph 4 of the Order drew the Masons’ attention to paragraph 3 of the Order of 18 March 2021, and also ordered the Masons to set out, in the Amended Points of Claim, full particulars of the claims for damages against each of the four respondents.
10	The months between August 2022 in February 2023 were wasted. The Masons failed to appear at a compulsory conference, bringing about an Order striking out the proceeding under s87 of the Victorian Civil and Administrative Tribunal Act 1998 (“VCAT Act”), and on 22 February 2023 the Tribunal granted a review of that Order under s120 of the VCAT Act. In the review, the Masons were ordered to pay the building surveyor’s costs thrown away, which reflects the Tribunal’s finding that the Masons were at fault in not appearing at the compulsory conference, and that setting aside the order against them was an indulgence. Paragraph 4 of the Order made 22 February 2023 ordered the Masons to file Further Amended Points of Claim by 28 April 2023, and directed the Masons to deal with seven subjects in that pleading. The Order listed a further directions hearing to be held on 30 May 2023.
11	The Order made at the directions hearing on 30 May 2023 contains a finding by the Tribunal that the Further Amended Points of Claim – that is, the third iteration of the Points of Claim – were inadequate and not in compliance with the Order made 22 February 2023. It ordered the Masons to file and serve a fourth pleading – to be called the Second Further Amended Points of Claim – by 25 August 2023, and scheduled a further directions hearing to be held on 23 November 2023.
12	The Order made at the directions hearing on 23 November 2023 contains a finding by the Tribunal that the Second Further Amended Points of Claim was inadequate. It ordered the Masons to file and serve a fifth pleading – to be called the Third Further Amended Points of Claim – by 25 June 2024. The amount of time allowed for the filing of this fifth pleading was very generous.
13	This brings us to today’s application by the building surveyor. The Masons filed and served their Third Further Amended Points of Claim on 27 February 2024. Because the document has not headed correctly, it is best to simply call this the Fifth Points of Claim. It was filed over four years after the proceeding was commenced.
14	On 29 May 2024, the building surveyor applied under s75(1)(a) of the VCAT Act for these Orders, in the alternative:
(a)	the summary dismissal of the Masons’ claim against the building surveyor; or
(b)	the striking out of paragraphs 10 &16, 17-20, 22 and 26(c) of the Masons’ Fifth Points of Claim – which would have the effect of striking out the Masons’ claim against the building surveyor.
15	With the application form, the building surveyor included an affidavit of Ms Tran, their legal practitioner, in support and a written submission.
16	An Order was made on 3 June 2024 setting out a timetable for the hearing of the s75 application. It listed the application for hearing on 25 September 2024; ordered the Masons to file and serve any affidavit in opposition by 5 July 2024, and any written submission by 9 August 2024.
17	The Masons did not file an affidavit or written submission. I do not consider them to have materially “breached” the Order of 3 June 2024, as it is unusual for the respondent to a summary dismissal application to file an affidavit that goes beyond explaining the delay or exhibiting some relevant correspondence, given that these applications are run by analysing the pleadings rather than on the basis of evidence, and because the expression “any written submission” arguably left it open to the Masons to elect to simply make an oral submission.
18	At today’s hearing the building surveyor relied on the written submission, and the Masons made submissions orally.
19	I well understand that legal proceedings can seem technical to self-represented litigants. Nevertheless I was advised in the hearing that in the previous directions hearings at which the Masons’ various Points of Claim have been held to be inadequate, the presiding Members advised them to consider obtaining legal advice; and as I have noted above, in three of the written Orders issued after the directions hearings the presiding Member has directed the Masons to the deficiencies in their Points of Claim and identified the subjects which had to be covered. It cannot be said that the Masons were simply directed to “comply with the Supreme Court Rules of pleading” and left to their own devices. Objectively, the Tribunal has gone to considerable lengths to assist the Masons, as self represented litigants.
20	In making the Masons’ submissions in reply in today’s hearing, Mr Mason said the following:
(a)	Moorabool Shire Council v Taitapanui [2004] VSC 239 establishes that the building surveyor owed the Masons a duty of care;
(b)	the Masons only made claims against the building surveyor in respect of defects in the work which he could observe, and they excluded any defects which the building surveyor could only have detected by carrying out destructive tests, but that they had not said this in the Fifth Points of Claim;
(c)	the Masons claimed between $20,000.00 and $30,000.00 against the building surveyor;
(d)	VCAT was there to give people access to justice.
21	With respect, these were very broadbrush arguments, which did not address the deficiencies in the Fifth Points of Claim which the building surveyor’s legal practitioners have gone to great lengths to point out in their letter of 29 May 2024 (which was exhibited to Ms Tran’s affidavit), or in the written submission filed with the s75 application.
22	The argument that VCAT exists to give parties access to justice was unimpressive in this context. It suggests that the Masons think sections 97 and 98(1)(d) of the VCAT Act mean that the Tribunal must give access to the Masons but pay no regard to the interests of the respondents, and that s78 of the VCAT Act does not apply to them. The Masons had engaged legal practitioners in both VCAT proceeding BP1637/2017 and in their appeal, and I am satisfied that they understand the legal issues arising in those proceedings and in this proceeding. In the above letter of 29 May 2024 the building surveyor’s legal practitioners made submissions about the role of a building surveyor under the Building Code of Australia; the statutory functions of the building surveyor under the Building Act 1993 (Vic) which they submitted did not run to being a contract administrator; the warranties imposed on the Masons by section 8 of the Domestic Building Contracts Act 1995 (Vic); and the function of an occupancy permit issued by building surveyor.
23	In the letter of 29 May 2024 the legal practitioners also submitted that in the Fifth Points of Claim the Masons asserted that the building surveyor failed to identify defective building works. They said that if the building surveyor had identified defecting building works, the Masons as owner builders would still bear the responsibility to rectify them. They submitted that the experts reports filed by the Masons to date had not been prepared by building surveyors and did not address the reasonableness of the building surveyors’ conduct. Further, as owner builders, the Masons contributed to their own loss by failing to perform the building works with due care and skill in accordance with the building permit documentation, which the Masons apparently assert is evidence of the building surveyors’ breach of obligation.
24	I have carefully read the Fifth Points of Claim and whilst I do not propose to refer to that document here in microscopic detail, I will say here that it undoubtedly fails in its task of fairly putting the building surveyor on notice of the basis of the claim made against it, and informing the building surveyor of the case which it must meet. Simply focusing for the moment on paragraphs 10 & 16, 17-20, 22 and 26(c):
(a)	the Masons allege they engaged Mr Park, but give no particulars of the engagement or of the terms of the alleged retainer;
(b)	in paragraph 19 the Masons say they “understood that the contractual relationship with the (sic) Mr Park was to perform oversight of the permit conditions …(etc)”, without giving particulars of where that “understanding” came from. As paragraph 19 was intended to convey a claim of breach of contract, it is inconsistent with the principle of objectivity; and
(c)	in paragraph 20 they use a similar form of words, that the Masons “understand that the terms of the contract included …”, and in in paragraph 20(g) that the Masons “believe that [the building surveyor] is liable for the following costs due to his negligence … His failure in not identifying non-compliant issues…”.
25	These are not pedantic criticisms, particularly in the context of this being the Mason’s fifth pleading, four years in the making, where the Tribunal has repeatedly counselled the Masons on what they must address in their Points of Claim.
26	Over the last few decades, the way in which civil litigation is conducted has evolved from a situation in which the parties were largely left to conduct their cases they saw fit to the position where the Court and Tribunals actively manage cases. Even though VCAT does not have detailed procedural rules in the style, for example, of those applicable to litigation in the Supreme, County and Magistrates’ Courts, the same principles apply. Section 80 of the VCAT Act empowers the Tribunal to make directions, and it is no accident that the orders made by the Tribunal in directions hearings are called Orders. They are not requests or recommendations.
27	A major milestone in this evolution of procedure was AON Risk Services Australia Limited v Australian National University [2009] HCA 27. The ANU was suing its insurers and AON, its broker. At the commencement of a trial listed for four weeks, the ANU settled with the insurers and then sought leave to amend its case against AON – in effect a file the equivalent of “amended points of claim” in a VCAT proceeding. The trial judge gave the ANU leave to amend, and AON appealed from that decision. The controversy went as far as the High Court.
28	In granting leave to amend, the trial judge had said that justice is the paramount consideration, and trumped case management considerations including the availability of court resources, and that even though the explanation for ANU’s delay was ‘unsatisfactory’ it was important that the proposed amended iteration of the claim raised real triable issues.
29	The High Court unanimously overturned the trial judge’s decision (which had been upheld in an appeal), although for different reasons. Significant statements by the High Court included:
(a)	Ordering an adjournment and giving leave to amend involves the exercise of the Court’s discretion. The proper exercise of the discretion is not to be considered solely by reference to whether AON’s wasted legal costs could be reimbursed by ANU. “Whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system”. The trial judge did not exercise the discretion properly.
(b)	Discussing a line of authority culminating in Queensland v J L Holdings [1997] HCA 1, “It might be thought a truism that case management principles should not supplant the objective of doing justice between the parties according to law. Accepting that proposition, JL Holdings cannot be taken as authority for the view that waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of interlocutory discretions (concerning amendment of pleadings). Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes”.
(c)	In the first appeal against the trial judge’s decision, the Court of Appeal held that the proposed amendment raised an arguable claim; that no case management considerations required a refusal of leave to amend; that AON could be compensated by an order for costs (and in this context, one of the judges had said the amendment would not cause substantial injustice, and that any injustice was capable of remedy by an order for costs); and evidence was not lost as a result of the delay in ANU seeking to raise its new claim in the amendment. However, the High Court said that a fundamental premise of case management is that what may be just, when amendment is sought, requires account to be taken of other litigants, not just the parties to the proceeding itself. Additionally, it is not the case that a party has a “right” to amend: the question of further amendment is dependent on the exercise of the court’s discretionary power.
(d)	Whilst personal litigants (ie, individuals) are likely to feel the strain of litigation more than corporations, an incorporated defendant (respondent) is still disadvantaged by delay in litigation because it may be required to carry a contingent liability in its books of account, with consequent effects on its ability to plan financially, and to divert resources to deal with the litigation.
30	The separate judgment of Heydon J is remembered for its poetic final paragraph, but perhaps what stands out most now is His Honour’s comment that the delay by the trial judge in ruling on the application to amend was “deplorable”. Heydon J’s judgment was thought, for a time, to have ushered in a new era in which procedural directions would be enforced, adjournments would be extremely difficult to obtain, and late orders for the amendments of pleadings extremely rare. That has not come to pass.
31	The Masons’ arguments in the hearing before me suggested that they assumed they had a right to amend, and as identified in AON, that assumption is misplaced.
32	It is noted in passing in AON that in 1987 the House of Lords in the UK had  referred to the pressure on the courts caused by the great increase in litigation, and the consequent necessity that, in the interests of the whole community, legal business should be conducted efficiently. Since the Covid 19 pandemic these pressures have substantially impacted VCAT, as discussed in Plunkett v Portier Pacific Pty Ltd.
33	There is another point which was not raised by the parties in the hearing of the s75 application, but which clearly arises and which one would expect to be pleaded in a Defence if the Masons were to ever file a proper pleading. In the hearing, I asked the Masons whether they had given any consideration to, or heard of, the principles enunciated in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45, and they answered in the negative. Were this proceeding to continue between the Masons and the building surveyor, it would be likely in my view that the building surveyor would submit that claims which the Masons seek to bring in this proceeding could have and should have been brought in proceeding BP1637/2017.
34	I am satisfied that the Fifth Points of Claim are inadequate, in articulating a claim by the Masons against the building surveyor. Had the building surveyor not made its s75 application, an Order could have been made by the Tribunal on its own volition stating that the Masons had not complied with the Order made 23 November 2023 and that the Fifth Points of Claim was a nullity. As all the previous iterations of the Points of Claim had been determined by the Tribunal to be inadequate, the Masons would be left with an initiating Application form which did not articulate their claim. Thus, after a period of four years the Masons would have an empty, rather than a “generally endorsed” Application form, and it is likely that the proceeding would be struck out.
35	Apart from the Masons saying in the hearing before me that if the Tribunal considered Fifth Points of Claim to be inadequate they could file another document – which also reflects their misguided assumption that they have a “right” to amend –  they only mentioned, in the broadest terms, Moorabool Shire Council v Taitapanui [2004] VSC 239.
36	However, that decision is of no assistance to them in this application. That case concerned the question of whether a building surveyor owed a duty of care to a subsequent purchaser of a house (so transposing it to the issue before me, whether a duty was owed to the Frasers, not to the Masons). In the judgment there are various references to the “owner”, in the sense of the ‘original owner who engages the building surveyor and a builder’. It is not said in the judgment that the building surveyor owes a duty of care to the builder, or a duty to be a contract administrator. I would draw the Masons’ attention to paragraphs 33, 37, 40, 44, 48, 79, and 119 of the judgment.
Orders
37	The building surveyor applied for orders, in the alternative:
(a)	summarily dismissing the Masons’ claim against the building surveyor; or
(b)	striking out of paragraphs 10 &16, 17 -20, 22 and 26(c) of the Masons’ Fifth Points of Claim – which would have the effect of striking out the Masons’ claim against the building surveyor.
38	Obviously, summarily dismissing the proceeding would deprive the Masons of their “day in court” and would be more a drastic remedy than striking out paragraphs of the Fifth Points of Claim. It is always said that the power of summary dismissal should be exercised cautiously.
39	If the offending paragraphs were struck out, unless the Masons applied for and obtained leave to file and serve a Sixth Points of Claim, the result would be all but identical to summary dismissal. To apply for leave the Masons would have to draw a proper pleading. After so many previous Orders pointed them to the matters which would have to be pleaded, I can have no confidence that they would comply, and I do not propose to do point out  again what a proper pleading should contain. The Masons would have to address the issue of their delay in seeking properly to pleading their claim, over this period of over four years, and address issues of prejudice which one would expect the building surveyor to raise in opposition. Clearly, in an application for leave to amend the quality of the Sixth Points of Claim would be considered. That would not be done in the context of a respondent seeking to strike out the pleading and thus having the burden of establishing why that should occur, but rather would be in the context of the Masons seeking leave to file the document, and thus having the burden of establishing that the new pleading raises arguable claims in an appropriate form. An application for leave to amend might present the opportunity to debate the applicability of Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45. By not engaging legal practitioners to draw the pleading to date, the Masons have imposed considerable costs on the building surveyor, and perhaps on the other respondents. There may be cause to consider an application that the Masons provide security for costs, under s79 of the VCAT Act.
40	On balance, I am satisfied that it is appropriate to summarily dismiss the Masons’ proceeding against the building surveyor. After the Masons have had five opportunities and some four years to file a proper pleading and taken up considerable resources of the Tribunal in the process – at the expense of litigants in other proceedings who have been seeking hearings in their matters – I do not consider it unreasonable to take this course.
41	The building surveyor expressly sought costs of its application. That subject could not sensibly be raised for argument before the outcome of the application was known. The most efficient way to deal with this is to order that the next time the proceeding comes back to the Tribunal for directions – as it continues between the Masons and the first and third respondents – that the building surveyor be notified and  that the parties make their submissions then.

I Lulham 
Deputy President