VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
CIVIL DIVISION
BUILDING AND PROPERTY LIST	
vcat reference No. BP1945/2020	
CATCHWORDS	
Domestic building work – dispute between owner and builder over relocation and re-erection of residential dwelling – claim by builder for payment of balance of contract price and other amounts - breach of contract and statutory warranties – defective workmanship - expert evidence; damages in the nature of interest.	

APPLICANT	Moving Views Property Developments Pty Ltd (ACN 091 528 791)	
RESPONDENT	Loraine Hoo	
WHERE HELD	Melbourne	
BEFORE	Member R Bennett	
HEARING TYPE	Hearing	
DATE OF HEARING	6 February 2023	
DATE OF ORDER	28 October 2024	
CITATION	Moving Views Property Developments Pty Ltd v Hoo (Building and Property) [2024] VCAT 1019	
Order
1	The respondent must pay the applicant the sum of $70,037.50
2	The applicant must pay the respondent the sum of $2,308.30.
3	The amounts payable by each party to the other are to be set-off against each other, resulting in a net payment by the respondent to the applicant of $67,729.20.
4	The respondent must pay the applicant interest in the sum of $26,609.26.
5	The parties have leave to make an application for costs. Any such application must be made in writing within 42 days of the date of these orders. The parties are referred to the provisions of section 109 of the Victorian Civil and Administrative Tribunal Act 1998, especially the matters set out in s.109(3) of the Act. The Principal Registrar is directed to refer any costs application to Member Bennett who may make further orders and determine the application on the papers.
6	If no application for costs is made, there will be no order as to costs.

R Bennett
Member			

APPEARANCES:		
For Applicant	Ms J Dodd of Counsel	
For Respondent	Ms L Hoo, in person	

Reasons
INTRODUCTION
1	In February 2019, Lorraine Hoo (‘Owner’) entered into a domestic building contract with Moving Views Pty Ltd (‘Builder’) for the purchase and relocation of a single storey timber veneer home to her property in Scarsdale, rural Victoria (‘Property’).
2	By March 2020, the home was relocated to the Property and set on stumps installed by the Builder.
3	The Builder has come to the Tribunal seeking payment of the balance of the contract price and other amounts due. By counterclaim, the Owner seeks damages for breach of contract, including the cost of completion and rectification of the building work. 
4	The hearing ran for 4 days commencing on 6 February 2023. The proceeding was further heard on 23 November and concluded on 24 November 2023. The Builder was represented by Ms J Dodd of Counsel. The Builder called a director, Mr G Schembri, an employee carpenter, Mr M Mifsud, and other witnesses to give evidence on behalf of the Builder. The Builder also called an expert building consultant, Mr S Brownhill, to give evidence in respect of his report dated 23 March 2023.
5	The Owner was self-represented and gave sworn evidence.  She called two builders, Mr M Forsyth and Mr R Ford, to give expert evidence in respect of their reports dated 25 March 2020 and 24 December 2021, respectively. She also called her daughter-in-law, Ms A Hanson, to give lay evidence.
6	During the hearing, the parties agreed a list of issues for determination by the Tribunal. The Builder filed closing submissions on 10 July 2024. The Owner has not filed closing submissions, which were due by 4 September 2024.
ISSUES
7	The issues I must determine are:
Nepean Contract (contract dated 17 December 2018 for purchase and relocation of a home in Parkdale, Melbourne, to the Owner’s Property)
(1)	Did the applicant breach the Nepean contract?
(2)	If so, what loss (if any) has the respondent suffered as a result of that breach?
Barkly Contract (new contract dated 6 February 2019 for purchase and relocation of a home in Ringwood to the Owner’s Property)
(3)	How much has the respondent paid the applicant pursuant to the Amended Barkly Contract?
(4)	How much is owing to the applicant under the Amended Barkly Contract?
(5)	What is the unpaid balance of the contract price?
(6)	Is the respondent liable to pay:
(i) 	late removal fees; and
(ii) 	double-handling fees?
(7)	Is the applicant liable for any damage to the respondent’s driveway?
If so, what is the reasonable cost of rectification?
(8)	Who is responsible for the delay in completion of the re-erection works?
(a) 	If the applicant is responsible for the delay, what amounts (if any) are owed by the applicant in respect of:
(i) 	loss suffered by the respondent;
(ii) 	delay damages payable to the respondent?
(b) 	If the respondent is responsible for the delay, what amounts (if any) are owed by the respondent in respect of tarpaulin rental?
(9)	Were the re-erection works carried out by the applicant defective?
(a) 	If so, what is the reasonable cost of rectification?
(10)	What is the status of the Record of Agreement?
(11)	Is the applicant entitled to payment for the additional costs incurred and works carried out in performing its obligations under the Record of Agreement?
SUMMARY OF FINDINGS
8	For the reasons below, I find that the Builder is entitled to be paid $70,037.50, being the balance owing under the Amended Barkly Contract together with some of the other amounts claimed. The Owner is entitled to be paid $2,308.30 on her counterclaim.
CLAIMS & BURDEN OF PROOF
9	The Builder brings its claim under the Amended Barkly Contract, alleging a breach of contract by the Owner and claiming the following amounts from her:
Re Contract dated 6 February 2019 for purchase of a home in Ringwood to be relocated and re-erected for $140,250 including GST
Balance of contract price - $44,923.50 (balance of 3rd instalment - $37,909.50 plus balance of final instalment - $7,014)
Tarpaulin rental - $10,240
Late payment fees - $8,000
Late removal fee - $3,024
Double handling fees - $13,500
Sub-total - $79,367.50
Plus, Additional works - $5,500
Total - $84,867.50
10	During the hearing, the Builder withdrew its claims for $8,000 for late removal fees and $5,500 for additional works. Accordingly, I do not have to determine Issue (11).
11	The Builder has the burden of proof to satisfy the Tribunal on the balance of probabilities of the facts necessary to establish its claims under the contract, which is the subject of the dispute. If the Builder is unable to prove its claims on the balance of probabilities, they must be dismissed.
12	By counterclaim, the Owner disputes the Builder’s claims and alleges the Builder breached the contract, particularly failing to carry out the relocation and re-erection work in a proper and workmanlike manner or with reasonable care and skill.
13	The Owner claims damages in the sum of $354,983.20, calculated as follows:
Cost to substitute Barkly contract for Nepean contract - $15,000
Cost to rectify defective work – $14,124.80
Increased cost to complete building work – $234,358.40
Damage to Owner’s Property - $5,000
Delay damages – $86,500 (173 weeks x $500 per week)
14	At the hearing, I explained to the Owner that she has the burden of proof to satisfy the Tribunal on the balance of probabilities of the facts necessary to establish her claims against the Builder. If she was unable to prove her claims on the balance of probabilities, they must be dismissed.
LEGAL PRINCIPLES
15	The parties agreed that the domestic building work under the Amended Barkly Contract involved works associated with the relocation of the house to the Property. The contract states that it is not a ‘major domestic building contract’, as that term is contemplated under the provisions of the Domestic Building Contracts Act 1995 (Vic) and the non-relocation building works were to be carried out by the Owner as an owner-builder. 
16	In relation to the Owner’s counterclaim, the main question is whether the Builder breached the contract by failing to perform its obligations to relocate and re-erect the house on the Owner’s property on time, in a proper and workmanlike manner and/or with reasonable care and skill.
17	As to what damages the Owner is entitled to recover, the ‘ruling principle’ is that, where a person suffers loss because of a breach of contract, that person is to be placed in the same position as if the contract had been performed. 
18	In claims involving defective or non-compliant building work, this is usually assessed by determining the cost to rectify the defects or make the work compliant, provided that the rectification work is: (a) necessary to produce conformity with the terms of the contract; and (b) a reasonable course to adopt in all the circumstances.
OWNER’S EVIDENCE
19	There is no requirement for a party to be legally represented in a hearing before the Tribunal. However, in building dispute cases such as this case, the parties can be assisted by legal representation.
20	The Owner was legally unrepresented throughout the hearing. This was unfortunate as I found her evidence and cross-examination of the Builder’s witnesses to be sometimes misguided and poorly prepared. For example, the Owner produced an audio recording of an on-site meeting with the Builder, which went for about an hour. The recording was of discussions between the Owner and the Builder about problems with the re-erection of the home on the Owner’s property and negotiations between the parties to try to resolve the problems. I found the evidence to be of little assistance to the Owner’s claims against the Builder, as the discussions did not directly concern the items which are the subject of the Owner’s counterclaim. A further example is the Owner proposed to call her treating doctor and other medical practitioners as witnesses to give evidence about the Owner’s medical condition. I informed the Owner at the start of the hearing that the witnesses would not be material to her claims against the Builder. The Owner does not plead a claim against the Builder for damages for stress, anxiety or mental upset. The Owner also proposed adducing evidence of the experience of other clients of the Builder. Again, I informed the Owner that this evidence was irrelevant to the issues in dispute in this proceeding. 
21	I suggested to the Owner on several occasions during the hearing that her defence and counterclaim may benefit from some legal advice or assistance. I gave her the opportunity to obtain legal assistance.
22	It is clear to me from a reading of the Owner’s pleadings and witness statements, and listening to the Owner’s evidence during the hearing, that she has become extremely emotionally invested in her dispute with the Builder and the ensuing litigation.  Unfortunately, this has coloured her evidence and distorted her recollection of events and presentation of her defence and counterclaim.  For example, the Owner alleges the Builder is unlicensed and this has something to do with its performance of the contract. Even if it was true, the allegation has nothing to do with the alleged breaches of the contract, which only concerns the performance of work associated with relocating and re-siting a house from one property to another. The Owner also seems to distrust the Builder and alleges dishonest behaviour. For example, the Owner’s pleadings and witness statements contain unnecessary and highly personal comments regarding the Builder’ witnesses. The Owner’s evidence about her dealings with the Builder were at times inconsistent with contemporaneous correspondence.
23	Because of the Owner’s condition, I do not doubt she has tried to provide truthful evidence but I found her evidence to be generally inadequate or unreliable. I also find the evidence of the Builder’s witnesses to be preferred because their evidence was generally supported by contemporaneous correspondence or materials. For example, my findings in relation to the Amended Barkly contract are based on an acceptance of the Builder’s evidence, in preference to the Owner’s evidence, which was not supported by the documents or was inconsistent with the materials. 
24	I also found the evidence of Ms Hanson, the Owner’s daughter-in-law, to be of no assistance to the Owner’s case.
BACKGROUND
25	I consider the following background is relevant:
26	On 17 December 2018, the parties entered into a contract for the purchase and relocation of a home in Parkdale, Melbourne, to the Owner’s Property (‘Nepean contract’).
27	The Owner paid a deposit and building permit fees between 21 and 23 December 2018.
28	On 30 January 2019, the Builder informed the Owner that the Nepean house had become unavailable for purchase by the Builder. 
29	The Owner paid the balance of deposit on 1 February 2019. 
30	On 6 February 2019, the parties signed a new contract for the purchase of a home in Ringwood, in Melbourne’s east, to be relocated and re-erected on the Owner’s Property for $140,250 including GST (‘Barkly contract’).
31	On 19 June 2019, an amended version of the Barkly Contract was sent to the Owner, which included a new Schedule of Works at clause 1D and an amended payment schedule (‘Amended Barkly Contract’).
32	The Barkly house was divided into three sections (as part of the relocation process) and delivered to the Property between 30 July 2019 and 4 August 2019, but could not be delivered into position because of wet weather conditions and were placed on stands near the entrance to the Property.  
33	On 16 August 2019, the Owner filed an application with the DBDRV, which resulted in the parties entering into a Record of Agreement on 26 February 2020 (‘Record of Agreement’).
34	Pursuant to the Record of Agreement, the Builder returned to the Property and completed the process of stumping, re-joining the house sections and re-pitching the roof between 29 February 2020 and 23 March 2020.	
NEPEAN CONTRACT – BREACH BY BUILDER?
35	Before the Barkly contract (the main contract which is the subject of the claim and counterclaim), the parties entered into the Nepean contract.
36	The Owner alleges the Builder breached this contract by failing to proceed with the purchase and relocation of the house. As a result, she was forced to enter another house purchase contract with the Builder for a greater price and claims $15,000, being the difference in price between the Nepean contract and the Barkly contract. 
37	The Builder denies the Owner’s claim and says that the contract was mutually terminated. In January 2019, the Builder informed the Owner that the home had become unavailable for purchase by the Builder. Accordingly, the Builder could not perform the Nepean contract. The Owner accepted the contract could not be performed.
38	The Builder offered the Owner another house under a different contract or a refund of monies paid under the Nepean Contract. The Owner accepted the Barkly contract as a replacement contract for the Nepean Contract instead of a refund of the monies paid under the Nepean contract. Accordingly, the Owner accepted the Builder’s offer. 
Findings
39	After considering the parties’ evidence and the Builder’s submissions, I accept the Nepean home became unavailable for purchase and the Builder informed the Owner of this. I also find that the parties terminated the Nepean contract by agreement.  Further, I find that the Owner accepted the Builder’s offer to enter into another house purchase and relocation contract and the monies paid by the Owner under the Nepean contract were credited to her under the subsequent Barkly contract.
40	Accordingly, I find that there was no breach of the Nepean contract by the Builder or any loss suffered by the Owner by reason of entering into the Barkly contract, being the house replacement contract.
41	The Owner’s counterclaim fails in this regard.
BARKLY CONTRACT & AMENDED BARKLY CONTRACT
42	On 6 February 2019, the parties signed the Barkly Contract.
43	The terms of the Barkly contract included:
a.	the Owner was responsible for obtaining planning and building permits and would incur a $4,500 double-handling fee, if any delay occurred (Item 11);
b.	the Owner was responsible for any costs incurred by the Builder as a result of delay in moving the house from the original owner’s property (Item 11); and
c.	any tarpaulins supplied by the Builder incurred a rental fee of $80 per week for each tarpaulin, after 2 weeks from the time of delivery (Item 8).
44	The Barkly Contract was prepared by Ms Schembri, an employee of the Builder, who simply amended the Nepean contract and credited the amounts paid by the Owner under that contract. The Builder explains this is why the Barkly contract is mistakenly dated 20 December 2018, although it was sent to the Owner on 31 January 2019 and signed on 6 February 2019. 
45	The Barkly contract was amended following discussions between the parties in May and June 2019.  On 19 June 2019, the Builder emailed the Owner an amended version of the Barkly contract, which included a schedule of works at clause 1D and a revised payment schedule at item 6 of the Schedule (‘Revised Payment Schedule’). The Builder issued a replacement invoice in respect of the second progress payment, which accorded with the amount payable in the Revised Payment Schedule. That day, the Builder sent the Owner a text message stating that he had sent her an email, to which the Owner responded “Thank you George” on 20 June 2019. 
46	On 24 June 2019, the Builder sent an email to the Owner requiring that she sign the amended agreement and pay the replacement invoice by 28 June 2019. The Builder then sent her a text message with a photograph of the printed email. That day, the Owner responded to the Builder’s email regarding the amended agreement but did not indicate if she agreed to or would sign that document.
47	On 27 June 2019, the Owner again emailed the Builder requesting further amendments to the Barkly contract. On 28 June 2019, the Builder responded to her email: 
a.	requesting that the Owner sign and return the amended agreement provided on 19 June 2019 and pay the replacement invoice issued the same day; and  
b.	otherwise stating that it did not agree to the further amendments requested. 
48	On 28 June 2019, the Owner sent the Builder photographs of a signed “Barkly contract”, which contained the schedule of works at clause 1D and the Revised Payment Schedule. However, unlike the revised agreement that had been sent to her by the Builder, the Owner’s revised agreement: 
a.	contained a handwritten amendment in respect of cl 6 stating “I, Loraine Hoo, do not agree with clause 6 and sign this contract on the basis of it being void”; 
b.	on the signature page, appeared to contain the Builder’s signature from the original Barkly Contract, which was dated 6 February 2019; and 
c.	had been newly signed by the Owner, with her signature being dated 28 June 2019; 
49	By 2 payments on 28 June and 30 June 2019, the Owner paid the full balance owing in accordance with the Builder’s invoice dated 19 June 2019, which had been issued in accordance with the Revised Payment Schedule.
50	At the hearing, the Builder’s director, Mr Schembri, gave evidence that the Builder had not agreed to any of the Owner’s proposed further changes to the Barkly contract. The Owner concedes this point.
51	Accordingly, the Builder submits that the version of the Barkly contract signed by the Owner on 28 June 2019 is not binding. Further, despite not been signed by either party, the Builder submits the Amended Barkly Contract comprises the document sent by the Builder on 19 June 2019 and the agreement between the parties.
Amount Paid under the Amended Barkly Contract 
52	The Builder submits the Tribunal can rely on the contemporaneous invoices, receipts and electronic payment records to determine the balance owing by the Owner under the Amended Barkly Contract, as follows:
a.	the purchase price for the Barkly was $127,500 (plus GST), which is equal to $140,250 (incl GST);
b.	the Owner paid $19,387 (incl GST) by way of deposit for the Nepean across two payments on 21 and 23 December 2018;
c.	in respect of the deposit payment for the Barkly, the payment schedule in the Barkly Contract: 
i.	lists the total deposit payable as being $19,125 (plus GST);  
ii.	records the receipt of $17,625 (plus GST) – which totals the $19,387 paid by the Owner – towards the deposit on 23 December 2018; and 
iii.	deducts the amount received from the total owing, leaving a balance of $1,500 (plus GST) that remains payable. 
d.	on 31 January 2019, the Builder issued an invoice for the balance of the deposit under the Barkly Contract, which accords with the original payment schedule;
e.	The Owner paid $1,650 (incl GST) on 1 February 2019; 
f.	The Builder issued a progress payment invoice in accordance with the Barkly Contract on 15 April 2019, which was cancelled by reason of the Revised Payment Schedule;
g.	in accordance with the Revised Payment Schedule, a replacement invoice was issued on 19 June 2019 incorporating the two progress payments that were owing by that point, totalling $50,737 (including GST); 
h.	the Owner paid the full outstanding balance by two payments on 28 and 30 June 2019; 
i.	a further invoice for $25,202.50 (incl GST) was issued by Moving Views on 2 March 2020, pursuant to the DBDRV Record of Agreement; and 
j.	the Owner paid the 2 March invoice in full by two payments on 3 and 4 March 2020. 
53	Accordingly, the Builder submits, of the total purchase price of $140,250.00 (incl GST), the Owner has paid $96,976.50 (incl GST), comprising: 
a.	deposit for the Nepean contract in the sum of $19,387 (incl GST) which was credited as part payment of the deposit for the Amended Barkly Contract; 
b.	additional deposit for the Amended Barkly contract in the sum of $1,650 (incl GST); 
c.	progress payments totalling $50,737 (incl GST); and 
d.	further payment pursuant to the Record of Agreement in the sum of $25,202.50 (incl GST).  
54	This leaves a balance of $43,273.50 outstanding in respect of the purchase price. 
How much is owing to the Builder under the Amended Barkly Contract? 
55	The Builder claims the Owner is also liable to reimburse it the sum of $16,524, comprising:  
a.	additional costs of $3,024 that were incurred because of the late removal of the house from the original owner’s property; and 
b.	double-handling fees totalling $13,500, which were incurred by reason of the need to return to the Owner’s Property to re-locate the house sections onto the site in March 2020 owing to bad weather conditions at the time the house was first delivered to site. 
56	The Builder relies on item 11 of the Schedule to the Amended Barkly Contract, which makes the Owner responsible for the costs of storage and double-handling fees in circumstances where there is a delay in delivery of the house sections to the site.  
57	The Builder submits it took reasonable steps to reduce the total cost to the Owner in respect of the delay by leaving the house at the original owner’s property until the Owner obtained planning permission. If it had placed the house sections in storage (as anticipated under item 11 of the Schedule), the total cost to the Owner would have been $30,135.00, calculated as follows: 
a.	11 weeks’ storage at $95 per section per week, totalling $3,135.00; 
b.	double-handling fees incurred at the time of re-locating the house sections from storage to the Property, totalling $13,500; 
c.	double-handling fees incurred at the time of re-locating the house sections from their stands on the Property to the site for the purpose of stumping works, totalling $13,500. 
58	Accordingly, the Builder submits it reduced the total cost to the Owner by $13,611.
Findings
59	Having considered the parties’ evidence and the Builder’s submissions, and there being no submissions to the contrary from the Owner, I find that the Amended Barkly Contract is constituted by the agreement sent by the Builder to the Owner on 19 June 2019 and gives rise to the Builder’s right of action against the Owner in the proceeding.
60	I further find the amount owing to the Builder by the Owner under the Amended Barkly Contract is $43,273.50, together with $16,524 pursuant to item 11 of the Schedule to the Amended Barkly Contract (see reasons in paragraphs 97-99 below). Therefore, the Owner is liable to pay the Builder the sum of $59,797.50.
Is the Builder liable for any damage to the Owner’s driveway? 
61	The Owner alleges that when the Builder delivered the house to the Property in July 2019 and placed it on stands inside the entrance to the Property, the Builder damaged the front driveway and entrance she had built in readiness for the relocation of the house. The Owner claims the cost of repairing the damage to the driveway is $4,500 to $5,000, based on an estimate she has received from a contractor. The estimate was not produced at the hearing.
62	The Builder disputes liability for the damage to the Property and submits the Owner has failed to provide any or sufficient evidence to establish liability in respect of the damage to her driveway. The Builder further submits that any damage was caused by the wet weather conditions on 30 July 2019, rather than any act on its behalf. Further, the Owner has failed to provide any evidence of the cost of rectification and, therefore, has failed to provide a basis for any damages to be awarded in her favour. 
Findings
63	I accept the Builder’s submissions, there being no submissions to the contrary from the Owner. I find the Owner’s evidence is insufficient to establish liability on the part of the Builder for any damage to the driveway.
64	Accordingly, this part of the Owner’s counterclaim fails.
Who is responsible for the delay in completion of the re-erection works? 
65	By her counterclaim, the Owner seeks damages for delay by the Builder in performing the Amended Barkly contract. The Owner claims that the building work under the contract (being the relocation and siting of the house on stumps on the Property) should have been completed by mid-2019. The Builder did not complete the relocation and siting of the house until 23 March 2020. The Owner claims $86,500 for delay damages, based on 173 weeks x $500 per week.
66	The Builder disputes the Owner’s claim for delay damages and submits there is a clear chronology of relevant events leading up to completion of the house relocation and siting work, which supports the Builder’s position. These events include:
a.	On 20 February 2019, the Builder obtained a building permit (‘Removal Permit’) for the works involved in removing the Barkly from the original owner’s property (‘Removal Works’).
b.	On 12 April 2019, the Builder submitted the building permit application for the works involved in relocating the Barkly onto the Site (‘Re-erection Works’). 
c.	After receiving necessary information from the Owner, including a soil report and plan of survey, the Builder finalised the plans for the relocation, which were completed on 3 March 2019.
d.	The Removal Works commenced on 23 April 2019.
e.	On 25 April 2019, Ms Spiteri wrote to the Owner:
i.	confirming that the Removal Works had commenced; 
ii.	noting that the Builder was “at a standstill” with the paperwork until the planning permit was issued; and 
iii.	suggesting that the Owner find out whether the council would allow the house to be placed on stands at her property until the permit was issued. 
67	As the Barkly house was ready for removal in the week of 13 May 2019, it became necessary to store the house until the Builder was able to transport it to the Owner’s property. The Builder arranged for the Barkly house to remain on the original owner’s property until it was able to be delivered. 
68	As the original owner had arranged for building works to commence on their property once the Barkly house was removed, their building works needed to be delayed until the Barkly house could be removed. This led to the original owner being charged two variation fees by their builder for the delay in commencement. The variation documents were sent to the Builder on 26 July 2019 and the Builder paid the sum of $3,024 in respect of the delay. 
69	The Owner obtained a planning permit for the re-location of the Barkly house on 26 June 2019.
70	On 9 July 2019, the Owner sent the Builder the septic permit. This was the final requirement for the building permit, which was issued on 12 July 2019.
71	On 24 July 2019, the Builder carried out the foundation works on the Property by excavating the stump holes. The certificate of compliance in respect of the stump holes was issued on 26 July 2019.  
72	On 30 July 2019, the Builder placed the first house section on stands at the entry to the Property because due to wet site conditions it could not be delivered all the way to the site. The second and third house sections were delivered and similarly placed on stands on 1 and 4 August 2019, respectively.
73	The Builder’s witness, Mr Mifsud, gave evidence about the issues with the delivery of the house. Mr Mifsud referred to the wet conditions at the site and lack of drainage, as well as the size and depth of the crushed rock that had been used in constructing the driveway. The Builder notified the Owner of the delivery difficulties.
74	On 12 August 2019, the Builder and the Owner met at the Property to discuss the site problems posed by wet weather and other factors. The Builder relies on the 12 August recording produced during the hearing by the Owner. The Builder submits the recording demonstrates that the Builder made an offer to the Owner as follows:
a.	if they were to “wait until the ground dries up”, the Builder will compensate the Owner “for the next few months” in the sum of “$500 per week”;
b.	the Builder would come back to finish the Re-Erection Works as soon as there was “a good clear patch” and, in the meantime, it would “just keep taking $500 a week off the contract”, to which the Owner responded “thank you”.
75	The Builder understood the matter had been resolved at the 12 August meeting. However, the Owner filed an application with the Domestic Building Dispute Resolution Victoria (‘DBDRV’) in late-August 2019. 
76	On 23 September 2019, the Builder wrote to the Owner to arrange a visit to assess whether the house sections would be able to be delivered to the site. On 26 September 2019, the Owner responded: 
To whom it may concern 
This matter has now been referred to the DBDRV for various reasons, regarding several issues which (may) be governed under consumer / contract / common / building and/or other law.
Communication was expected in writing by 17 August 2019, after the on-site meeting on 12 August 2019, as promised by Moving Views P/L, however once again there has been zero contact since. 
This is not the first occasion of a complete lack of contact or any level of customer service, from you.
From the beginning this whole venture has proven to be an unimaginable nightmare once the initial deposit of 15% was paid to you for “The Nepean”, on 21/12/18, and the contract had been signed. 
On several occasions you had been emailed to clarify issues concerning your level of customer service, your contract and its contents, invoices sent and payments requested, and other questionable interactions/practices since the start. 
Taking into consideration the history of ongoing issues dating back to December 2018, and the fact various situations that have arisen from this are hugely impacting on every aspect of life, on legal advice the matter has been lodged with the DBDRV so that a satisfactory outcome will be reached. 
The DBDRV has considered this carefully and the case has since been placed on the urgent list. 
It is disappointing to see that either George or Carmen did not find it important to get in touch themselves when they are very aware of my situation, when they are very quick and persistent to be in touch when money is concerned as has been evident from day 1. 
Not at any time did I fail to meet my obligations as the customer/consumer/“owner builder” Please direct all correspondence and communication regarding this via email only from now on. Sincerely 
Loraine Hoo 
77	On 26 February 2020, the parties attended a mediation convened by the DBDRV and entered into the Record of Agreement. 
78	On 2 March 2020, the Builder confirmed that the three house sections were in position on the site and the stump holes had been cleared. 
79	A certificate of compliance in respect of the Re-Erection Works was issued on 23 March 2020.  
80	On 2 April 2020, the Builder received an email from the DBDRV confirming that: 
a.	access to the property was no longer being provided and the Builder is not to return; 
b.	the Owner had requested a refund of the first payment made under the Record of Agreement; and 
c.	the DBDRV would be investigating whether the Builder had breached the Record of Agreement. 
81	On 13 May 2020, the Owner filed a ‘Notice of failure to comply with record of agreement’ with the DBDRV. 
82	On 14 August 2020, the DBDRV issued a Certificate of Conciliation noting that:
a.	The Owner had alleged a failure to comply with the Record of Agreement;
b.	“it has not been determined whether the [Record of] Agreement has been complied with”; and
c.	due to contested non-compliance with the Record of Agreement, the dispute was not resolved by conciliation.
83	The Builder disputes the Owner’s claim for delay damages. It submits there was no delay within the meaning of the Amended Barkly Contract prior to 4 August 2019, when the third house section was delivered to the Property.
84	By 4 August 2019, the Builder had until at least 9 November 2019 to complete the Re-Erection Works in accordance with cl 1D of the Amended Barkly Contract (being 120 days from the date on which the building permit was granted), plus two days for each wet weather day between 12 July and 9 November.
85	In any event, the Builder contends the Owner is responsible for all delay to the completion of the Re-erection works from 26 September 2019. 
86	Alternatively, based on the evidence that was adduced during the hearing, the Builder contends no binding agreement was reached between the parties regarding any delay damages that may be payable if the Builder is found liable for any delay between 12 August 2019 and 26 February 2020 (when the Record of Agreement was entered into). 
Findings
87	Having considered the parties’ evidence and the Builder’s submissions (there being no submissions to the contrary from the Owner), I find the delay to the building work under the Amended Barkly Contract was attributable to the Owner or circumstances beyond the control of the Builder. In particular, the Builder could not carry out the work until the Owner obtained the planning permit in June 2019 and building permit in July 2019. I also accept the Builder’s evidence that the sections of the Barkly house could not be delivered to site until the wet site conditions in July / August 2019 dissipated. Further, by lodging her application with the DBDRV in August 2019, the Owner caused work to stop until the Record of Agreement was reached in February 2020.
88	Further, I find there was no agreement concluded between the parties at the 12 August 2019 meeting for the Builder to pay the Owner $500 per week until the site conditions improved. It is clear the Owner did not accept the Builder’s offer by deciding to refer the dispute to the DBDRV after 12 August 2019.
89	I also find the Owner’s claim for delay damages has no legal basis. The Amended Barkly contract does not give the Owner a right to damages for any delay to the work by the Builder. The Owner does not set out in her pleadings a basis at common law or in equity for delay damages in any circumstances. 
90	I accept the Builder’s submission the Amended Barkly Contract operates such that the Owner bears the risk of any delay to the completion of the Re-erection Works. 
91	Accordingly, the Owner’s claim for delay damages fails.
92	I further find that the Amended Barkly Contract makes the Owner responsible for the additional costs caused to the Builder as a result of any delay, including where no party is at fault.
93	I accept the Builder’s evidence that it incurred double handing fees of $13,500 (being $4,500 per house section x 3) because of delays in obtaining the planning permit. I also accept the Builder’s evidence that it incurred the delay costs paid to the original owner of the Barkly house because no planning or building permit had been obtained by 13 May 2019.
94	Accordingly, I find the Owner liable under the Amended Barkly Contract to pay the Builder $16,534, for double handing fees of $13,500 and delay costs of $3,024 paid to the original owner of the Barkly house.
Tarpaulin Hire 
95	Item 8 of the Schedule to the Amended Barkly Contract states that:  
a.	the Builder will provide tarpaulins to cover the sections of the house during preparation, transportation and relocation; 
b.	these tarpaulins will be provided free of charge for a period of 14 days from the arrival of the house sections at the purchaser’s property; and 
c.	thereafter, a fee of $80 per tarpaulin per week will be charged for rental of the tarpaulins. 
96	The Builder gave evidence that it supplied 2 tarpaulins to protect the roof of the Barkly house from bad weather in August 2019.
97	The Builder submits the Owner is liable to pay rental for the tarpaulins from 19 August 2019 (being 2 weeks after the tarpaulins were installed) until 24 November 2020 (being the date of commencement of the proceeding). This equates to $10,240, calculated at 64 weeks x $160 per week.
98	The Owner disputes the claim for tarpaulin rental and gave evidence that the tarpaulins were torn and weather damaged shortly after being installed and, accordingly, were not fit for purpose. The Builder denies this.
Findings
99	I do not accept the Owner’s evidence regarding the damaged nature of the tarpaulins at the time of installation. Photographs of the house taken after March 2020 show the tarpaulins in a damaged state but not at the time of installation. Further, I infer from the parties’ evidence that the tarpaulins were intended to provide short term weather protection, as it was envisaged the Owner would arrange for her own building contractor to carry out and complete the building work required to obtain an occupancy permit. I understand the Owner was to arrange for the building work to be carried out shortly after March 2020.
100	Therefore, the Owner had the opportunity to return the tarpaulins in the months following completion of the relocation and siting work by the Builder. It is clear on the evidence that she retained the tarpaulins until the Builder commenced the proceeding. In this regard, the Owner missed an opportunity to limit her liability to the Builder for the tarpaulin rental.
101	I find on the evidence before me that the Owner is liable to pay the rental of 2 x tarpaulins claimed under the Amended Barclay Contract in the amount of $10,240.
Were the re-erection works carried out by the Builder defective? 
102	The Owner alleges the siting and re-erection works carried out by the Builder in February and March 2020 were defective. The Owner called two builders, Mr M Forsyth and Mr R Ford, to give expert evidence in respect of their reports dated 25 March 2020 and 24 December 2021, respectively.
103	The Builder called a building consultant, Mr S Brownhill, to give evidence in respect of his report dated 23 March 2023.
Stumping and Foundation Works  
104	In respect of the stumping works, Mr Ford opined that, based on his inspection of the site and excavation around one stump, the concrete pads were missing from the stump holes. Mr Ford also raised an issue of sub-floor unevenness.
105	Mr Forsyth raised other issues with the sub-floor and foundation works, including: 
a.	failure to properly secure the external floor joists to the laminated bearers; 
b.	the house could be physically shaken sideways at the time of his inspection; and 
c.	insufficient tie-down straps to external stumps. 
106	The Builder asserts that concrete footings were poured following the inspection of the stump holes in July 2019. Mr Schembri gave evidence that it was his standard practice to pour concrete footings to a depth of 300-400mm to “make a more solid foundation”. This supports the evidence of Mr Mifsud, who was present at the site when the concrete was poured and gave evidence that:
a.	the concrete truck could not get to the Site, so the concrete was brought up the driveway in wheelbarrows; and 
b.	the stump holes were a minimum of 800mm deep, with the concrete pad taking up a minimum of 300mm at the bottom of the hole, which he measured against the 300mm shovel that he uses specifically for such foundation works. 
107	Mr Mifsud has produced a copy of the invoice showing the volume of concrete that was delivered, being 4.5m3. The Builder also relies on photographs by the Owner in or around July 2019, which show poured concrete at the base and around the edge of various stump holes before any further stumping works were carried out.
108	Mr Ford accepted that there may have been a concrete pad below the stump that was simply covered by a layer of clay. He also accepted that the volume of concrete delivered in July 2019 was consistent with concrete pads having been poured in each stump hole to a depth of 300 - 400mm. 
109	Mr Brownhill’s gave evidence that, at his inspection in 2021, he found the floors inside the house were largely level and he was unable to find any evidence indicating that the stumps had been sinking over time, which would be expected if there were no concrete pads supporting them. When asked whether he had noticed any unevenness in the floor levels, Mr Ford conceded that he did not notice “any springiness or movement underfoot”. Similarly, Mr Forsyth commented that “the house is very level” and that this was “not the issue”. 
110	The Builder submits the evidence establishes that these issues were no longer present by the time Mr Brownhill inspected the Property.
Sub-Floor Clearance 
111	In respect of the sub-floor clearance, Mr Brownhill agrees that the Builder has failed to allow sufficient sub-floor clearance to certain areas below the house. 
112	Mr Brownhill is of the view that the problem can be easily rectified by a contractor removing soil and debris below the house to achieve the required clearance.
Further Alleged Defects 
113	Mr Brownhill also agrees that additional fixings to the floor joists are required and, of the 130 stumps installed, there are 5 stumps which do not provide sufficient bearer support. 
114	The Builder submits that the following matters were raised by the Owner’s experts based on the mistaken assumption that the Builder was required to complete construction to a lock-up stage and are attributable directly to the temporary nature of the works carried out by the Builder: 
a.	the failure to properly secure the timber post of the main building; 
b.	any alleged defect arising from Mr Forsyth’s assertion that he was able to physically shake the building at the time of his inspection; and 
c.	allegedly inadequate fixings to re-joined areas. 
115	In respect of the damage caused to the house during removal and relocation, the Builder submits it agreed to provide replacement plaster to rectify damage to the lounge and hallway, and thus no longer presses its claim for quantum meruit in respect of the plaster that was delivered to the site.
116	It further submits there is no evidence on which the Tribunal can be satisfied that any damage to the house was excessive, unreasonable or otherwise outside the scope of damage that was anticipated in the Amended Barkly Contract.  The Owner did not lead any evidence of the condition of the Barkly house prior to dismantling and removal. Mr Forsyth conceded during his evidence that he did not know what condition the Barkly was in prior to removal and that none of the damage he saw stuck out to him as particularly unreasonable in the context of a house relocation.
117	The Builder submits the Owner has failed to establish most of the defects alleged by her expert witnesses. In particular, Mr Brownhill’s evidence should be accepted to the exclusion of the opinions of Mr Ford and Mr Forsyth, both of whom proceeded based on the erroneous assumptions that: 
a.	The Builder was required to complete construction to a ‘lock-up’ stage; and
b.	The Owner was not an owner builder and had no independent responsibility for completing domestic building works after the delivery of the home to her property.
Findings
118	Save for the matters in the paragraphs below, I accept the Builder’s evidence and the Builder’s expert evidence in preference to the Owner’s experts’ evidence. I find the Owner’s experts have based some of their opinions on the mistaken assumption that the Builder was responsible for all building work.  In this case, there is a clear distinction between the scope of building work under the Amended Barkly Contract, for which the Builder is responsible, and the non-relocation and siting work, for which the Owner is responsible as owner-builder.
119	I find on the evidence before me, the Builder installed the stumps on concrete pads as required and the stumps were installed correctly. I also find the Builder carried out the sub-floor works and Re-Erection Works in a proper and workmanlike manner. If there were any issues with floor levels or sub-floor unevenness at the time of inspection by the Owner’s experts, such issues were not identified by the Builder’s expert in 2021 and appear to have resolved over time.
120	I accept the expert evidence of both parties and find the Builder carried out the following work defectively:
a.	Inadequate sub-floor clearance and levelling;
b.	additional fixings to the floor joists are required; and
c.	there are 5 stumps which do not provide sufficient bearer support:
Quantum of Rectification Works 
121	The parties’ experts have provided limited estimates of potential rectification costs. I asked the expert witnesses during the hearing to give an estimate of costs to fix the items of defective work.
122	In summary, Mr Brownhill’s evidence and Mr Ford’s and Mr Forsyth’s evidence as to quantum was as follows:
Defect	Ford (incl. GST)	Forsyth (incl. GST)	Brownhill (incl. GST)	
Inadequate sub-floor clearance - removal of sub-floor debris and levelling the ground	$2,000	N/A	$880	
additional fixings to the floor joists	$1,000	$800 - $1,000	$218.30	
stumps not providing sufficient bearer support	$3,630 (for installation of 5 new stumps)
OR
Cleating beams subject to RBS approval	$4,400 - $6,600
OR

$1,500	$2,310

OR

$1,210	
Total	$6,630	$2,300 - $7,600	$2,308.30 - $3,408.30 	
123	The Builder submits that Mr Brownhill’s evidence regarding quantum should be preferred to the expert opinion of Mr Ford or Mr Forsyth, as it is based on a clear understanding of the Builder’s obligations under the contract.
124	I accept the Builder’s submissions, there being no submissions to the contrary, and prefer Mr Brownhill’s cost estimates as the reasonable cost of rectification. I accept Mr Brownhill’s evidence because, of the expert witnesses, he was the only professional building consultant and I found his evidence was more persuasive than the other experts.
125	Accordingly, this aspect of the Owner’s counterclaim succeeds. I will allow $2,308.30 for rectification costs, based on Mr Brownhill’s costing of the alternative remedy of cleating the beams to existing stumps. 
What is the status of the Record of Agreement? 
126	The Builder submits that, because of what the DBDRV describes as “contested non-compliance” with the Record of Agreement, it can no longer be relied on as binding. On a proper application of the provisions of the Domestic Building Contracts Act 1995 (Vic) (‘the Act’), the Builder contends a breach by any party must result in the Record of Agreement ceasing to have effect. Specifically, sections 46G and 46H of the Act state as follows:
46G Notice of failure to comply with conciliated agreement 
(1) 	A party to a domestic building work dispute may give written notice to the chief dispute resolution officer if an action recorded in a record of agreement for the dispute has not been taken within the time specified in the record of agreement. 
… 
46H Notice of non-compliance with conciliated agreement 
(1) 	If, on receiving a notice under section 46G, the chief dispute resolution officer determines that the action was not taken within the specified time⎯ 
(a) 	the record of agreement ceases to have effect; and 
… 
127	In this case, the Notice provided by the Owner was given under section 46G. While there has been no determination of non-compliance by the chief dispute resolution officer (‘CDRO’), both parties allege the Record of Agreement has been breached:
a.	The Owner contends the Builder breached the Record of Agreement by reason of the alleged defects in respect of the Re-Erection Works; and
b.	The Builder contends the Owner breached the Record of Agreement by failing to pay the second payment of $25,202.50.
128	Importantly, section 46E(2)(c) of the Act – which provides for the CDRO to issue a certificate of conciliation on the basis that the dispute was not resolved – states that such a certificate can only be provided in circumstances where:
a.	the dispute was not resolved by conciliation;
b.	the dispute is no longer suitable for conciliation; or
c.	there is contested non-compliance with a record of agreement or a dispute resolution order.
129	The Builder further submits the Act treats these circumstances as giving rise to the same outcome for the parties; that is, effectively commencing the dispute from scratch before the Tribunal.
Finding
130	I accept the Builder’s submissions, there being no submissions to the contrary, and find the Record of Agreement ceased to have effect. Accordingly, it is no longer binding on the parties.
OWNER’S COUNTERCLAIM 
131	By her Amended Points of Counterclaim and Explanation of Costs and Damages, the Owner claims damages totalling $328,634.70, comprising:
a.	liquidated damages/delay damages totalling $60,000; 
b.	building permit fees - $6,315; 
c.	planning permit fees - $2,800; 
d.	septic permit fees - $124.80; 
e.	“increase in house purchase cost”- $10,000; 
f.	“increase in site costs” -$5,000; 
g.	repair to driveway entrance and drainage -$4,500; 
h.	additional rubble -$450; 
i.	removal of asbestos - $5,700; 
j.	appointment of building surveyor, estimated to cost between $15,000 to $18,500; 
k.	increase in costs for trades, totalling $15,000; 
l.	increase in costs for materials, totalling $24,500; 
m.	completion of works (effectively, rectification costs) -$148,014.90; and 
n.	interest on monies paid totalling $31,230. 
Delay Costs Agreement 
132	For the above reasons, I have found the Owner has failed to prove her claim for “liquidated damages/delay damages/loss/damages” in contract or at common law. There was no enforceable agreement reached at the 12 August 2019 meeting under which the Builder would pay the Owner $500 per week.
Rectification & Completion Costs 
133	For the above reasons, I have found the Owner has failed to prove her claim for rectification costs, save for $2,308.30. The Owner did not produce any evidence or lead any expert evidence regarding the quantum of her claim for defective or incomplete work. In any event, the Builder is not liable for the Owner’s claim for completion costs as the work to complete the house is outside the scope of work under the Amended Barkly Contract, and within the scope of work for which the Owner is responsible as owner-builder.
Weather Damage 
134	The Owner’s expert witnesses gave evidence that there had been significant weather damage to the home during the period from March 2020 to November 2021, when Mr Ford inspected the Property. The Builder submits, to the extent that the Owner’s counterclaim incorporates the rectification of that weather damage, the Builder is not liable for any such costs where: 
a.	the house has been in the Owner’s exclusive possession since 2 April 2020, when the DBDRV informed the Builder she had revoked permission for the Builder to access the property; 
b.	items 8 and 11 of the Schedule to the Amended Barkly Contract provide the Owner is responsible for:  
i.	ensuring that the tarpaulins protecting the house remain intact and secured; 
ii.	any weather and/or water damage to the house after it is delivered onto the Property; 
iii.	installing the roof as soon as possible after completion of the Re-Erection Works; and 
c.	the Owner has failed to take any steps to mitigate her loss by promptly carrying out the further works necessary to complete the installation of the roof in or about April 2020. 
135	The Owner has argued that she was ready to install the roof in March 2020 but could not do so because the roof frame was incomplete. However, the Builder submits it was only obliged to re-pitch the roof “as it was originally erected prior to relocation”, whereas the Owner was required to supply and fit “any roof material”. Mr Mifsud’s evidence is that various parts of the roof frame as “originally erected” – including the battens, valley boards and fascia – were unable to be used for the purpose of the tin roof that the Owner intended to install. Therefore, the supply and fitting of those “roof materials”, being part of the framing works, fall within the Owner’s obligations. 
136	The Owner also argued the Builder is liable for the weather damage because the tarpaulins were not secured in a “proper workman like manner”, as required under item 8 of the Schedule. For example, Mr Forsyth’s evidence was that the tarpaulins had been secured in a temporary manner that would likely hold for a few weeks, while Mr Ford set out various alternative methods of securing the tarpaulins that was likely to hold for a longer period of time (at most a few months). 
137	However, the Builder submits the Owner’s experts’ opinions fail to account for the context of the Builder’s obligations. The Amended Barkly Contract anticipates the tarpaulins will provide only temporary protection on the basis that the Owner was expected to construct the roof as soon as possible once the Re-Erection Works were complete. At the time the Builder secured the tarpaulins and left the Site in late-March 2020, the Owner asserted that she was ready to immediately commence the roofing works, so it was not anticipated by any party that a more permanent installation would be required. However, she chose not to take these steps. 
138	The Owner also argued that she should not be responsible for rectifying the weather damage because ownership of the Barkly house was never transferred to her. The Builder submits there is no legal basis for such an argument in the circumstances.
Finding
139	I accept the Builder’s submissions, there being no submissions to the contrary, and find the Owner has failed to prove her claims for the above losses.
Building Surveyor and Permit Fees 
140	I find on the evidence before me the Owner has failed to prove her claim for building surveying fees and permit fees against the Builder.  In the circumstances, there is no legal basis on which the Owner may be entitled to these fees. The building surveying and permit fees are the Owner’s responsibility as owner-builder. The Amended Barkly Contract does not make the Builder responsible for these fees.
Miscellaneous Further Amounts 
141	For the above reasons, I have found there is no legal basis on which the Owner may be able to recover the following amounts from the Builder:
a.	The “increase in house purchase cost”, being the additional $10,000 that the Owner agreed to pay for the purchase of the Barkly after the Nepean became unavailable. This cost cannot properly be described as a loss suffered by reason of any identifiable breach of contract.
b.	The “increase in site costs” has not been established on the evidence. Specifically, both the Nepean Contract and the Barkly Contract contained identical provisions regarding the calculation of site costs. The statement of charges shows that the site costs were calculated by reference to the existing conditions at the Site. Therefore, the Owner did not incur any site costs other than those specified in the relocation agreement.  
c.	Interest on monies paid totalling $31,230 – Interest is only payable to a party in respect of amounts that are owing to that party. In the absence of any substantive claim for a refund of monies paid to the Builder, there is no proper basis for the Owner to claim the payment of interest on those amounts. 
142	Further, the Builder submits there is no evidentiary basis on which the Owner may be able to recover any of the following amounts: 
a.	In respect of the removal of asbestos, even if there was evidence of the presence of asbestos, the Owner has not adduced any evidence to establish that the cost of its removal would be $5,700. 
b.	Similarly, in respect of the additional rubble for the driveway and the repair costs for the entrance and drainage – which the Owner estimates at $450 and $4,500, respectively – she has not adduced any evidence capable of establishing that she has suffered loss in these amounts.
c.	In respect of the additional costs for trades and materials (estimated by the Owner at $15,000 and $24,500, respectively), there is no evidentiary basis on which the Tribunal can be satisfied that the Owner has suffered such loss. 
Findings
143	I accept the Builder’s submissions and find the Owner has failed to prove on the balance of probabilities any entitlement to the amounts claimed in the above paragraph.
INTEREST
144	The Builder claims interest on the net award of damages to it from the date of commencement of the proceeding, being 24 November 2020.
145	The Owner has not made any submissions in response to the Builder’s claim for interest.
146	The Builder does not assert or rely on any term of the Amended Barkly Contract that requires the Owner to pay interest to the Builder. Under s53(2)(b)(ii) of the Domestic Building Contracts Act 1995 (Vic) (‘DBC Act’), the Tribunal may order the payment of a sum of money by way of damages (including damages in the nature of interest). Therefore, any claim for interest must be made on the basis that it is claimed as loss or damage suffered by reason of the actions of the Owner, that is, damages in the nature of interest not a contractual right to interest.
147	However, the DBC Act does not provide that interest is always paid on amounts owed. Parliament could have chosen to have required the Tribunal to award interest where damages are awarded unless good cause is shown to the contrary, as it has for claims in the Supreme Court It has not done so.
148	Section 97 of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’) requires the Tribunal to “act fairly and according to the substantial merits of the case …” and section 98(1)(c) of the VCAT Act entitles it to “inform itself on any matter as it sees fit”, subject, of course, to being bound by the rules of natural justice. Accordingly, the test for whether the Tribunal should award interest is if it is “fair” to do so.
149	The fact that a party has been awarded a sum of money does not mean that that party has an automatic entitlement to damages in the nature of interest. The Tribunal must be satisfied that it is fair to make such an order. 
150	The observations made in the authorities concerning interest in the nature of damages under the Supreme Court Act provide useful guidance when considering an application for interest under s53 of the DBC Act. In particular, the statement of Gillard J in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (No 3) [2003] VSC 244: 
There are three main objectives of the award of interest. First, as compensation to the judgment creditor for being out of the funds from the date of commencement of the proceeding until judgment; secondly, to deter judgment debtors from delaying proceedings and thereby having the use of the money for a long period; and finally, to encourage defendants to make realistic assessments of their liability in a case and to take bona-fide steps to compromise the claim.
151	I have considered these objective as well as the following matters in determining whether it is fair to award interest in this proceeding.
152	I am satisfied that it is fair to award interest for the following reasons. Whilst these factors individually might not be sufficient to make an award of interest, I am satisfied that collectively it is fair to do so because:
a.	The Builder has been wholly successful in its claim.
b.	The Owner failed to pay the balance of the contract price when the Builder completed the building work in March 2020.
c.	The Owner defaulted on an agreement to pay, which was concluded through the DBDRV process.
d.	The Owner’s counterclaim has failed, save for a minor award of damages for defective building work.
e.	The balance owing to the Builder was payable in March 2020 and it is reasonable that that amount should not be eroded by the passage of time.
f.	The Owner is largely responsible for the delay in payment of the amount owing to the Builder under the Amended Barkly Contract. 
g.	The delay in payment by the Owner following demands for payment and the issuing of the proceeding means that the Builder has lost the use of the money during the period of the delay.
153	I consider that the commencement of the proceeding is a fair time from when the interest should begin to accrue for the following reasons.
154	Although s53(2)(bb) of the DBC Act does not state that interest in the nature of damages is paid from the commencement of the proceeding, under s60 of the Supreme Court Act, the ability to award such interest is limited to the time from the commencement of the proceeding.
155	Section 53(3) of the DBC Act says that in awarding damages in the nature of interest, the Tribunal may base the amount awarded on the interest rate fixed from time to time under section 2 of the Penalty Interest Rates Act 1983 (Vic) (‘Penalty Interest Rates Act’) or on any lesser rate it thinks appropriate.
156	The Builder does not seek interest at a specified rate. The Amended Barkly Contract provides that the Builder is entitled to interest on monies owing, where the Owner defaults in payment, of 2% higher than the rates fixed for the time being by section 2 of the Penalty Interest Rates Act.
157	The current interest rate fixed under section 2 of the Penalty Interest Rates Act is 10%. I cannot fix a higher rate of interest, only a lesser rate if I think appropriate.
158	I find that 10% is appropriate on the basis that it is the current interest rate fixed under the Penalty Interest Rates Act. I note that, under the Amended Barkly Contract, the Builder could seek interest at a higher rate if the Owner was late in making payments.
159	I will order the Owner pay interest on the net award of damages to the Builder in the amount of $26,609.26, calculated at 10% per annum of $67,729.20 for the period commencing 24 November 2020 until 28 October 2024, being 1,434 days at $18.56 per day. 
CONCLUSION
160	For the above reasons, I find the Builder has proved its claims for monies owed under the Amended Barkly Contract in the amount of $70,037.50, calculated as follows:
Item	Amount	
Balance owing under contract	$43,273.50	
Plus, delay costs and double handling fees	$16,524	
Sub-total	$59,797.50	
Plus, tarpaulin hire	$10,240	
Total	$70,037.50	

161	I also find that the Owner has failed to prove her claims against the Builder on the balance of probabilities, save for $2,308.30, being the assessed cost to rectify the building work.
162	Accordingly, I will make orders in respect of the Builder’s claims and the Owner’s counterclaim and interest on the net amount awarded to the Builder.
163	I will grant leave to the parties to address the Tribunal on the question of costs.

R Bennett
Member