Liden v Musumeci

[2025] VCC 809

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMERCIAL DIVISION

Revised
Not Restricted
Suitable for Publication

BUILDING CASES LIST

Case No. CI-20-04862

EFFI LIDEN	Plaintiff
V
CONNIE MICHELLE MUSUMECI	First Defendant
And
COMMERCIAL FITOUT SERVICES PTY LTD (ACN 107 989 677)	Second Defendant

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JUDGE:	HER HONOUR JUDGE A RYAN
WHERE HELD:	Melbourne
DATE OF HEARING:	26 March 2025, submissions filed 9 and 16 April 2025
DATE OF JUDGMENT:	24 June 2025
CASE MAY BE CITED AS:	Liden v Musumeci & Anor
MEDIUM NEUTRAL CITATION:	[2025] VCC 809

REASONS FOR JUDGMENT
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Subject:BUILDING, PRACTICE AND PROCEDURE

Catchwords:              Whether building works undertaken by the defendants complied with an order granting specific performance of a deed of settlement entered into by the parties

Legislation:Civil Procedure Act2010

Cases Cited:Jones v Dunkel (1959) 10 CLR 298; Beyond Rest Collingwood Pty Ltd v Beams Projects Pty Ltd [2025] VSC 291

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr L P Wirth	Rothwell Lawyers Pty Ltd
For the Defendants	Mr R A Harris	MGA Lawyers

HER HONOUR:

1The parties are neighbours. The plaintiff owns 37 Brunel Street, Aberfeldie. The defendants own the house next door at 35 Brunel Street. The first defendant and her husband, Domenic Musumeci, are directors of the second defendant. The parties have been in litigation for some years over building works which the defendants undertook on their property. The plaintiff claims the construction of the defendants’ adjoining dwelling had caused substantial and unreasonable harm to her property.

2This matter involves a discrete dispute about whether the defendants have complied with a court order dated 8 November 2024 (‘the order’).[1] The order was made by consent and granted specific performance of a deed of settlement entered into by the parties. By the terms of the order, the defendants were required to undertake various specified building works. The defendants contend they have complied with the order and performed the necessary works. This is disputed by the plaintiff who argues the works done were non-compliant.

[1] Order made by Her Honour Judge Kirton by consent dated 8 November 2024

3By this application, the plaintiff seeks supplemental orders to give effect to the order.

Background

4By writ filed on 2 November 2020 (and served on 1 November 2021), the plaintiff sought damages against the defendants, together with injunctive relief.

5The plaintiff relied upon the expert evidence of:

(a)   Russell Brown of RI Brown Pty Ltd;

(b)   Tim Gibney of TGA Engineers; and

(c)   David White of White Building Reports Pty Ltd.

6The defendants relied upon the expert evidence of Tom Casamento of TMC & Associates.

7On 30 September 2022, the experts engaged in a joint conference and produced a joint report of experts. The joint report outlined a number of defects with the construction of the defendants’ dwelling and identified the necessary repairs to be carried out to 35 Brunel Street.

8The parties subsequently entered into a deed of settlement dated 28 April 2023 (‘the deed’). Attached to the deed was a copy of the joint expert report.

9Clause 1.1 of the deed required the defendants to carry out the following works:

(a)   install a cut-off drain along the northern edge of the driveway and western wall of 35 Brunel. The drain is to be installed into stiff clay at a depth of approximately 500-600 mm to intercept sub-surface flows. The cut-off drain is to be substantially as specified by Gibney in Figure 4 of his May 2020 Report, except that it is no longer specified to be installed below the garage slab;

(b)   clean the cavity between the boundary walls of 35 Brunel and 37 Brunel;

(c)   rectify the existing flashing at the roof level on the boundary between 35 Brunel and 37 Brunel, and install new flashing between the pool wall and the garage wall, to prevent water ingress between the walls.

10Clause 1.2 provided that the works were to be performed by fully licensed trades in a proper and workman-like manner. The works were to be completed no later than 25 April 2023. Once the defendants completed the works, they were to be inspected by Mr Gibney, a civil and structural engineer retained by the plaintiff. Clause 1.6 of the deed stated that should Mr Gibney (acting reasonably) identify any defect in the defendants’ works, the defendants were to remedy them forthwith in accordance with Mr Gibney’s directions.

11The defendants carried out certain works in around June 2023. Mr Gibney inspected these works and reported that the defendants had not complied with clause 1.1 of the deed.

12On 12 December 2023, the plaintiff applied for judgment against the defendants seeking an order for enforcement of the deed.

13Further works were carried out by the defendants. Mr Gibney inspected those works on 10 and 11 September 2024. On 14 October 2024, he reported that the defendants had not complied with clause 1.1 of the deed. His opinion was that the works in question had not been satisfactorily completed.

14The order was in the following terms:[2]

[2]Court book 249

1.There be judgment in favour of the plaintiff on its application dated 12 December 2023 for enforcement of the Deed of Settlement dated 28 April 2023 (the Deed).

2.By 6 December 2024 at 4.00pm, the defendants must comply with clause 1.1 of the Deed, by carrying out or causing to be carried out the following works (as defined in clause 1.1 of the Deed):

a.   Install a cut-off drain along the northern edge of the driveway and western wall of 35 Brunel Street Aberfeldie VIC 3040. The drain is to be installed into stiff clay at a depth of approximately 500-600mm to intercept sub-surface flows. The cut-off drain is to be substantially as specified by Gibney in Figure 4 of his May 2020 Report except that it is no longer to be installed below the garage slab;

b.   Clean the cavity between the boundary walls of 35 Brunel and 37 Brunel Street Aberfeldie VIC 3040; and

c.   Rectify the existing flashing at the roof level on the boundary between 35 Brunel and 37 Brunel, and install new flashing between the pool wall and the garage wall, to prevent water ingress between the walls.

3.The proceeding is listed for a directions hearing on 18 December 2024 at 9.30am or so soon after as the business of the Court allows for the purposes of confirming whether the defendants have complied with paragraph 2 of these orders or whether further orders are necessary.

4.  By 11 December 2024 at 4.00pm, the defendants are to file evidence confirming they have complied with paragraph 2 of these orders.

5.  The defendants pay the plaintiff’s costs of the plaintiff’s application for enforcement on the standard basis to be taxed in default of agreement.

6.  The plaintiff is entitled to be paid and to commence a taxation of the costs referred to in paragraph 5 within 30 days of these orders, in default of agreement.

15Between November and early December 2024, the defendants carried out further work. As evidence of compliance with the order, the defendants filed an affidavit of Domenic Musumeci dated 11 December 2024 and an expert report of Mr Casamento dated 12 December 2024. Mr Musumeci deposed that the works referred to in paragraph 2 of the order had been carried out and completed by 6 December 2024.

16The matter did not end there as the plaintiff was not satisfied the defendants had complied with their obligations. In support of her contention that the works had not been done properly, the plaintiff relied on an expert report of Mr Russell Brown dated 5 February 2025. The plaintiff also swore an affidavit dated 20 March 2025, which attached four photographs she took on 13 March 2025 showing the works carried out by the defendants.

17The defendants note that the plaintiff did not call any evidence from Mr Gibney to opine whether the works done since his report dated 14 October 2024 had been satisfactorily performed. The plaintiff said at trial that she had made several attempts to contact Mr Gibney for the purpose of giving further evidence but he was unavailable.[3] It would be unfair, according to the plaintiff, to infer anything from his absence at the hearing.

[3]Transcript 34.27-35.12

18Mr Casamento provided a further expert report dated 18 March 2025 on behalf of the defendants. He reiterated that the works had been satisfactorily completed.

19The matter came on for hearing before me on 26 March 2025, pursuant to orders made on 18 December 2024 and 23 January 2025. The parties filed submissions before the trial, together with competing summaries of the facts and contentions.

20The issue at trial was whether the defendants had complied with paragraph 2 of the order in respect of three matters, namely:

(i) the cut-off drain;

(ii) cleaning of the cavity; and

(iii) flashing.

21Dealing with these matters in turn:

(1)  Cut-off drain

22The defendants have installed a cut-off drain as was required under clause 2(a) of the order.

23Mr Brown said in his report dated 5 February 2025 that photographs taken by the plaintiff revealed the plastic used around the pit was approximately 100mm short. However, when he gave his oral evidence at the hearing he changed his mind based on his review of four photos which he was provided with prior to giving his oral evidence.[4] Mr Brown conceded these photos resolved the concerns he had identified in his report and showed that the black plastic did wrap around completely. He went on to say that there was some plumbing done in and around the plastic which may or may not affect its functionality. Mr Brown explained that if the pipe used had penetrated the black plastic, there may well be some damage which is not shown in the photos. Mr Brown conceded it was pure conjecture on his part when he opined that the plumbing work in respect of the sealing of black plastic might not have been done in a workman like manner.

[4]        Exhibit ‘D1’

24The evidence given by Mr Casamento was to the effect that if the pipes, when laid, penetrated the plastic sheeting (which was pure speculation by Mr Brown), then the usual practice is for the plumber to seal the penetration with tape. He noted Mr Brown had conceded there was no evidence that any of the pipes laid had penetrated through the plastic. In his report dated 18 March 2025, Mr Casamento stated that the photographs he took showed the full extent of the membrane which laps under the strip drain. In his opinion, the plastic membrane has been installed correctly. He said that generally the plastic around the pipe is sealed with tape to ensure there is no water leaking to that point. Accordingly, the defendants say this is a non-issue as the evidence led clearly establishes that the pipes laid did not penetrate through the plastic.

25Furthermore, the first defendant’s husband, who is a structural engineer, had inspected the cut-off drain works and appeared to be satisfied with how they were conducted. Mr Musumeci gave evidence about this in his affidavit of 11 December 2025 at paragraph 8 and he was not challenged about this in cross-examination. Mr Liden did not give evidence. The defendants submitted it could be inferred that his evidence would not have assisted the plaintiff in respect of the matter raised by Mr Brown, relying on a Jones v Dunkel[5] inference. Pausing here, I am not satisfied that such an inference should be drawn – it could not be assumed that Mr Liden was a witness who the plaintiff should have called. In any event, the issue of compliance with the order ultimately turned on the experts’ evidence, such that Mr Liden’s lay opinion, even accepting he is an engineer, would not be determinative.

[5] (1959) 101 CLR 298

26The defendants say the attack in paragraph 8 of the plaintiff’s submissions dated 9 April 2025 on Mr Musumeci’s evidence and the four photographs (Exhibit ‘D1’) is unfounded, and noted no objection was taken to his evidence during the trial. Additionally, the plaintiff’s own expert, Mr Brown, relied upon these photographs. Accordingly, the defendants maintain they had complied with paragraph 2(a) of the order.

27In response, the plaintiff’s submission in relation to the cut-off drain was that the evidence filed did not demonstrate that the defendants had complied with paragraph 2 of the order. The evidence was equivocal about the completeness of the black plastic wrap which Mr Brown addressed in his report. It was said that the photographs produced on the morning of the hearing gave Mr Brown further concern. That concern, the plaintiff agreed, was necessarily categorised as conjecture, because neither party had an expert inspecting the completion of the work, and the defendants had not produced adequate evidence demonstrating proper completion of the work. Accordingly, the plaintiff says, the defendants had not filed evidence that the cut-off drain had been properly completed, and they ought to do so. If that requires them to dig up the drain and have an independent plumber, nominated by the plaintiff, conduct an inspection and produce a report confirming the work is satisfactory, then that is a matter of the defendants’ own making. It is therefore an appropriate order for the Court to make.

Analysis

28The issue is whether the cut-off drain has been installed in compliance with the order. There is no dispute that it has been installed. Mr Brown’s remark that the quality of plumbing work done relating to the potential penetration of black plastic by the pipes might be an issue, as he accepted, was pure conjecture on his part in the absence of any evidence to that effect. Mr Casamento pointed out that the photos provided showed quite clearly that the pipes in question had not penetrated any black plastic during the construction of the cut-off drain.

29In these circumstances, there is no warrant in my view to make an order, as suggested by the plaintiff, that the defendants should be directed to dig up the cut-off drain and have it reviewed by an independent plumber on the off chance there could be some unsubstantiated problem.

30The end result is that there is no probative evidence before the Court to show that the installation of the cut-off drain by the defendants was faulty and non-compliant. That being so, I am satisfied the defendants have complied with paragraph 2(a) of the order and no further orders are required.

(2)  Cavity

31Mr Musumeci cleaned out the mortar in the gap in the cavity between the walls at the front of the properties. He did not clean out any mortar at the back of the property between the neighbour’s pool fence as he was not aware of any requirement to do so.

32Mr Brown noted in his report dated 5 February 2025 that there was still granular material and grout between the wall servicing the swimming pool and the adjoining wall. The result was that the cavity had not been cleaned, contrary to the requirement contained in the joint report.

33Mr Casamento dealt with this issue in his report dated 17 March 2025. He referred to his earlier report dated 12 December 2024 in which he noted that the mortar between the brick wall boundary along the south side had been extensively cleaned out, apart from a small amount at the base. He did not regard this to be a structural issue as there is no potential for the mortar to cause any lateral pressure on the walls. This small amount of mortar cannot expand.  He noted that the owner of 35 Brunel Street advised that every attempt to remove the small amount of mortar residue remaining at the base of the walls was undertaken but it was impossible to do so.

34The obligation to clean the cavity set out in the order mirrored the obligation contained in clause 1.1 of the deed. The issue that arose at trial was whether this requirement extended for the complete length of the boundary walls between the two properties or only for a section at the front where there was a gap between the two dwellings.

35The plaintiff argued that the joint expert report, upon which the deed is based, adopts the same language without expressing any opinion about whether it is causally related to any damage to the plaintiff’s property – whether at the front of the properties or along the pool wall. Mr Casamento’s oral evidence that the experts’ intention was confined only to the cavity to the front of the properties finds no support in any of the reports and is inconsistent with his own report.

36The plaintiff referred to a passage in Mr Casamento’s report of 16 August 2022, where he wrote at paragraph 4.4:

The garage wall on the neighbouring property has not been cleaned of the spasmodic mortar debris attached to the blockwork wall. The 25mm clear gap between the boundary wall ... and the garage wall of [the defendants’ property] has been compromised, and must be cleaned out in accordance with proper building practice and the Building Order issued by the Relevant Building Surveyor. This has not caused or attributed any distress to the building [being the plaintiff’s property].

37Accordingly, the plaintiff noted that Mr Casamento had conceded that the cavity needed to be cleaned. However, his observation about the need to clean the gap between the boundary wall and the garage wall does not contain any qualification about any particular part of the boundary wall that requires cleaning. He makes no distinction between the front and rear part of the boundary wall in his report.

38The defendants argued it would be futile to make any order as the remaining mortar between the plaintiff’s pool fence and the defendants’ wall did not cause any detrimental impact to the plaintiff’s property. In response, the plaintiff submitted the structural importance of the requirement to clean the cavity was beside the point. The distinction between the front and rear of the boundary wall finds no support in the text of the deed or the judgment, and is unsupported by any document leading to the agreement that the defendants would clean the cavity.

Analysis

39The resolution of this issue falls to be determined as a matter of construction. The order made reflected the wording in the deed. Self-evidently, applying the well-known contractual principles relating to construction of contracts, the parties’ subjective intentions are inadmissible – the deed must be construed objectively. The objective approach requires reference to the text and its ordinary meaning, together with context and the purpose of the contract and/or the clause in question. The question is what a reasonable businessperson would have considered the terms of the contract to mean, having regard to the objective background circumstances.[6]

[6] Beyond Rest Collingwood Pty Ltd v Beams Projects Pty Ltd [2025] VSC 291, [51] (Niall CJ)

40The mortar in the cavity was raised as an issue between the experts as it might have been a factor affecting the stability of the dwellings. Mr Casamento agreed it was good practice to remove any mortar in these circumstances – hence the term in the deed. The plaintiff notes that the joint expert report on which the deed is based adopts the same language  without adopting any opinion about whether it is causally related to the plaintiff’s property – whether at the front of the property or along the pool wall. The plaintiff argued that Mr Casamento’s oral evidence that the cleaning was to be confined only to the cavity at the front of the properties finds no support in any of the reports and is inconsistent with his own report. I agree.

41The order and the deed upon which the order is based did not contain any restriction or qualification about the extent of the boundary wall to be cleaned. The wording used is unambiguous and contains no qualifications about the area to be cleaned. Mr Casamento’s subjective view as to what the clause means is inadmissible. Additionally, it should be noted that the order was made by consent of the parties. The defendants could have but did not seek to limit the extent of the boundary wall to be cleaned. Having consented to the order in paragraph 2(c) which is clear in its terms, the defendants are bound by the order made.

42I am satisfied the defendants have cleaned the cavity at the front part between the dwellings as best they can. There is no dispute that the remaining part along the boundary wall was not cleaned. In my view, the defendants were required to clean this area as well and therefore, have not complied with paragraph 2(b) of the order.

(3)  Flashing

43The defendants did instal a new flashing and guttering at the east end of the garage roof to prevent water ingress between the walls to resolve the issue identified with the flashing. In his report dated 12 December 2024, Mr Casamento stated that the new flashing and guttering had been installed to prevent water ingress between the walls and was deemed satisfactory.

44Despite this, there was no real dispute at the hearing that water was ponding in an area between the new and old flashing in the gutter, which meant it was not draining properly.

45The plaintiff gave evidence at trial that there was water coming down the wall. Mr Brown referred to the ponding of water in the gutter and observed there was a small water stain in the area. It was suggested there could be a hole in the silicone used in the gutter which was allowing water to leak through. So whilst this issue had been attended to by the defendants, Mr Brown considered the work done by the plumber engaged on their behalf was arguably defective because the gutter was not draining properly.

46The plaintiff notes the defendants say it would be prudent to allow them access to the plaintiff’s property to determine if there is in fact a defect, which if present, the defendants will engage a plumber and rectify the issue. The plaintiff is willing to provide access to the rear of her property, if needed. For the sake of clarity, the plaintiff says the order of the Court should be to the effect that the defendants rectify any defect in the flashing. It may be appropriate to then order that an independent plumber, nominated by the plaintiff, inspect and report on whether the flashing has been satisfactorily completed.

47The defendants submit that if it is found that they have not complied with any part of the order, the order contemplated by paragraph 24(a) of the plaintiff’s submissions should be made. This provides that the defendants comply with paragraph 2 of the order by a date to be fixed. The defendants do not agree with the making of the orders contemplated in paragraphs 24(b)-(d) of the plaintiff’s submissions, and ask to be heard before the Court considers making any such orders. These orders proposed that if the defendants did not comply with any further order made, the plaintiff could do all things reasonably necessary to cause the works to be carried out and the defendants pay the plaintiff any costs she might incur in doing those works.

Disposition and orders

48By reason of the foregoing, I am satisfied the defendants have complied with the order for the installation of the cut-off drain.

49For the reasons given above, the defendants have not complied with the order regarding the cleaning of the cavity between the boundary walls of the two dwellings.

50As for the final issue regarding flashing, the defendants accepted there was a potential leaking issue identified that needed to be investigated following the installation of the new gutter. It is appropriate therefore to order that the defendants inspect and rectify any defect in the flashing so as to ensure compliance with the order.

51In the first instance, the defendants should be ordered to clean the cavity and rectify the flashing by a particular date. The plaintiff should then be given an opportunity to be satisfied that these works have been done properly which may involve an expert, or an experienced plumber inspecting the completed works. In the hopefully unlikely event that there remains an ongoing issue with the further works done, I would reserve liberty to the plaintiff to apply for an order that she be permitted to undertake those works at the defendants’ cost.

52It is timely now to remind the parties of their ongoing obligations under the Civil Procedure Act 2010 to minimise delay and costs and to do their best to resolve this protracted dispute.

53The parties will be directed to confer and agree upon minutes of orders to give effect to these reasons, including costs.

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Certificate

I certify that these 13 pages are a true copy of the Reasons for Judgment of Her Honour Judge A Ryan delivered on 24 June 2025.

Dated: 24 June 2025

Associate to Her Honour Judge A Ryan