Zaitsev v Building Appeals Board

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2018 00942

BORIS ZAITSEV	Plaintiff
v
BUILDING APPEALS BOARD	First Defendant
and
ALAN ANTHONY LORENZINI	Second Defendant

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JUDGE:	QUIGLEY J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 May 2019
DATE OF JUDGMENT:	3 June 2019
CASE MAY BE CITED AS:	Zaitsev v Building Appeals Board & Anor
MEDIUM NEUTRAL CITATION:	[2019] VSC 364

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JUDICIAL REVIEW – Appeal from the Building Appeals Board - Order 56 – Certiorari to quash the determination of the Building Appeals Board – Internally inconsistent determination of the Building Appeals Board – Impossible to comply – Irrationality - Wednesbury unreasonableness – Failure to take into account a relevant consideration – No evidence – Building Regulations 2006 – Building Code of Australia – Remittal to the Building Appeals Board – Building Act 1993 ss 124, 149, 160, 162, sch 3.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D.\V Aghion	Boris Pogoriller
For the First Defendant	No appearance	Victorian Government Solicitor’s Office
For the Second Defendant	No appearance	Clyde & Co

HER HONOUR:

Introduction

1. The plaintiff Boris Zaitsev (‘the Plaintiff’) by originating motion seeks relief in the nature of certiorari to quash the Determination and Orders (‘the Determination’) of the first defendant, the Building Appeals Board (‘the Board’) dated 28 June 2018.

1. The Plaintiff is the owner of land at 30 Cromwell Street, North Caulfield, where a two storey plus basement dual occupancy residential building is under construction.  The construction history of the building is a somewhat unhappy and complicated one.  A summary of the history is set out in the affidavit of the Plaintiff sworn 20 August 2018.[1]  In brief, the construction of the building commenced in 2009.  The basement and framework above the basement were completed.  Construction stalled in 2010 following discovery of problems with the building.  The second defendant, Alan Anthony Lorenzini (‘the Second Defendant’), was appointed as the relevant building surveyor in late 2013 after the appointment of the original relevant building surveyor, Mr Tsaganas was terminated.

   [1]Court Book, Zaitsev v Building Appeals Board & Anor (Supreme Court of Victoria, S ECI 2018 00942, Justice Quigley, 17 May 2019) E28 (‘CB’).

1. Construction recommenced in early 2014 pursuant to building permits issued by the Second Defendant.  The framework was demolished down to ground level, rectification works were undertaken in relation to the basement, and the dwellings were reconstructed to lock-up stage.

1. After the discovery of further problems with the building, including the basement following the rectification works in the newly constructed superstructure above, the Second Defendant issued several building notices and building orders in relation to the building namely:

(a)A building order for minor work dated 16 March 2015, requiring replacement of flashings to the balconies and some windows (BOMW No.1);

(b)A building notice dated 11 August 2015 requiring the Plaintiff as owner to show cause why the basement concrete walls should not be replaced with structure that complies with AS3600 (BN…