Bestawros v Sorace (Building & Property) [2015] VCAT 288

Significance

A third party can be joined to proceedings regarding a domestic building dispute in the Victorian Civil and Administrative Tribunal (tribunal) if one of the preconditions in section 60 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (Act) is met. However, this is subject to the tribunal's discretion and whether the claim made against the joined party has a strong nexus to the domestic building dispute.

Facts

Mr and Mrs Bestawros (applicants) purchased a residential property from Mr and Mrs Sorace (respondents), who, as owner-builders originally constructed a residential dwelling on the property. The applicants claimed that the concrete slab and footings of the dwelling suffered from abnormal subsidence, resulting in significant cracks. The respondents claimed that the movement of the concrete slab and footings was caused by a chain of trees planted adjacent to the property on land which was owned or managed by Melton City Council.

The applicants sought to join Melton City Council as an additional respondent relying on section 60 of the Act. Melton City Council submitted that the joinder should be refused, principally on the ground that the claim alleged against them was not justiciable in the tribunal.

Decision

The tribunal ordered the joinder of Melton City Council as a party to the proceedings. Senior Member E. Riegler's reasoning was as follows:

  • section 60 of the Act does not of itself confer jurisdiction where no jurisdiction exists;
  • the jurisdiction of the tribunal is defined through enabling legislation, in this case the Domestic Building Contracts Act 1995 (Vic); 
  • once vested with jurisdiction to hear a domestic building dispute, the tribunal may grant relief against a party joined under section 60 of the Act provided there is a strong nexus between the claim made against the joined party and the dispute;
  • the allegations raised against the council demonstrated a strong nexus to the issues in dispute; and
  • the interests of the council were likely to be affected by the outcome of the proceedings.