To see some of the more significant matters (reported and unreported) that Joel has appeared and advised in, please go to 'Extended Biography'.
Overview of Practice
Joel is a trusted commercial adviser to a wide range of clients. His increasing focus is in the building and construction field (from smaller domestic building disputes to larger security of payment issues), together with property law (advising on easements, owners' corporations, leasing disputes, and nuisance matters) and insurance. He often advises parties from the earliest stages of their disputes (including on obtaining expert evidence), and is experienced in the preparation and running of trials, both led and unled. He has a keen interest in alternative dispute resolution in the construction sphere.
Joel accepts briefs in all Courts and Tribunals (state and federal). He read with Jeremy Twigg QC in 2014.
To view Joel's full CV, and to find some of his published works, you can visit his LinkedIn profile.
Relevant Skills and Experience
Joel continues to accumulate skills and experience which enhance his practice. These include:
Joel has also authored a number of practice papers (nuisance and trees, implied subdivision easements, briefing in domestic building matters, security of payment legislation in the building industry) and academic articles (see his LinkedIn).
Joel is a member of Melbourne TEC Chambers, the Commercial Bar Association, and the Building Disputes Practitioners Society.
While his practice is by no means limited to them, the clients Joel most commonly represents include:
If you fall into any of these categories, Joel probably has had a client in your situation before.
Why building and property?
Joel's choice of a career in law is in contrast to the two preceding generations of Silver men, who were practicing architects (in Perth and Melbourne), as well as qualified builders. Despite breaking that cycle (or deadly cycle, as his engineer friends describe it), Joel's familarity and comfort with these former Silver professions has provided him with the foundations needed to pursue his construction law practice.
The list below is a selection of some of Joel's more significant cases (either reported, or involving a level of research that can be used in other matters).
Banking and Finance
ANZ Banking Group Ltd v Loftus  VSC 342 (Supreme Court of Victoria, led by Paul J Hayes, now QC), appeal from a decision of an Associate Justice.
Sgargetta v National Australia Bank  VSCA 159 (Victorian Court of Appeal, led by Paul J Hayes, now QC), appeal from County Court of Victoria concerning the construction of a Deed of Settlement.
Building and Construction
Argyle Building Services v One Three Wilson  VCC 1567 – acting for builder in claim for recovery of progress claim under Building and Construction Industry Security of Payment Act 2002, where construction contract ABIC SW-2008 H Vic standard form Simple Works Contract for Housing in Victoria contract – relevance of whether tax invoice has been served following issue of a valid payment claim.
RF Construction Management v Wightman Street  VCAT Ref BP512/2019, disputing concerning release of bank guarantee at practical completion under ABIC SW-2008 Simple Works Contract – interlocutory order obtained requiring release of bank guarantee pending resolution of dispute, where delay damages claimed – submissions concerning Sugar Australia Pty Ltd v Lend Lease Services Pty Ltd  VSCA 98
Defence to Prosecutions
Brooker v Chelvadurai  H12586906 (Magistrates' Court of Victoria), for the accused, prosecuted by Maroondah City Council – matter concerned meaning of 'building work' within the Building Act 1993, accused had inspected works based on engineering drawings he had prepared, issued Certificates of Compliance – Builder had failed to obtain a building permit – Maroondah alleged inspections are 'building work' – charges dismissed as inspections not considered 'building work'
Acrow Formwork and Scaffolding v Major Scaffolding  VCC 2111, dispute between contractor and labour services subcontractor – subcontractor ceased work as a result of industrial dispute and contractor sought to terminate – identity of contracting parties – whether subcontractor repudiated agreement (where cessation of work attributable to third party) – contract repudiated and terminated.
Bayraktar v Sherridon (Building and Property)  VCAT 1863, domestic building dispute – acting for builder in claim relating to general owner complaints of defective or incomplete works – reasonableness of rectification proposals (defective brickwork)
Polzella v Govern Constructions, Roh Floor (Building and Property)  VCAT 1675, domestic building dispute – owner contracted builder to install timber floor, floorer to sand and coat – splits appeared in timber boards after project completed – alleged timber affected by "edge-bonding" adversely affected by by polyurethane coating – Tribunal rejected allegation, found floorer acted properly.
Raniti-CBMS v Ryan (Building and Property)  VCAT 281, trial concerning a domestic building contract with an insurer-determined scope of works - issues concerning surface and subsurface drainage – need for building permit.
Bitu-Mill v Australian Commercial Builders  D13835669 (Magistrates' Court of Victoria), defence and counterclaim concerning defective asphalt pavement, involving matters of design responsibility, express and implied warranties, exclusion clauses.
Harmonious Blend Building Corporation (t/a Clark New Homes) v Ibraham (Building and Property)  VCAT 1084 (led by Jeremy A F Twigg, now QC), defence and counterclaim to action by Builder under the Domestic Building Contracts Act 1995.
Commercial & Contracts
Megasealed Bathrooms & Balconies v Bendan Bathrooms  VCC 864 – application for default judgment, in claim for breach of franchise agreement (seeking restraint of trade, restraint over confidential information) – distinction between debt and damages – necessary elements of pleading to enable default judgment (as opposed to summary judgment).
Israfoods (2006) Ltd v J & D Consortium Pty Ltd  VSC 323 – application for summary judgment on distribution agreement – agreement to be interpreted in accordance with laws of Israel – expert report on laws of Israel filed by plaintiff alone – defendant did not file witness statements detailing relevant surrounding circumstances – discretion to grant summary judgment under Civil Procedure Act 2010, where Court required to construe commercial contract according to foreign law.
Asian Restaurants Concepts Franchising & Ors ('Noodle Box') v Mt Gravatt Noodle Box & Ors  SC ECI 2017 00160 (Supreme Court of Victoria) – acting for parties associated with former franchisee on application by franchisor for interlocutory injunction to force urgent closure post-termination of franchise agreement - issues concerning Franchising Code of Conduct, restraint of trade clauses - whether franchisee required to cease trade and terminate lease - whether franchisee entitled to renew agreement - injunction refused.
O'Neill v Bundall Consulting Pty Ltd (Civil Claims)  VCAT 1534 – successful action for recovery of monies from accountant, where accountant maintained mortgage over property and refused to remove unless alleged debt paid –debt paid under protest – Tribunal ordered monies refunded.
Liu v BJ Bennett & Co  (VCAT No.C83/2018) – claim by landlord against agent for alleged failure to exercise reasonable care when recommending a tenant – property raised several months in following discovery of a cannabis grow-house – agent found to have taken all care required, claim dismissed.
Sharma v Sharma  F13320117 (Magistrates' Court of Victoria) – claim between Indian nationals, uncle paid for niece to live and study in Australia (2001-7) - in 2015, alleges oral loan agreement in 2000, no contemporaneous notes - uncle to make subjective determination that niece capable of repayment - repayment term void for uncertainty, recovery barred after 6 years (Limitation of Actions Act 1958, s 5) - words giving rise to agreement not proven to standard in Watson v Foxman.
Raamish & Ayra v City of Melbourne  VSC 277 (Supreme Court of Victoria) – action in equity and misleading conduct for injunction and damages concerning alleged arrangement to berth ferry.
Lowther v Wood (t/a Hudson Advisory Group) (Civil Claims)  VCAT 1499 – action against mortgage broker and financial adviser under Australian Consumer Law for alleged misleading advice.
Goldsmith v Brous  SCI14-05226 (Supreme Court of Victoria, led by Paul J Hayes, now QC), defence to defamation action (settled at mediation).
Red Earth Developments (Aust) Pty Ltd v Heng Yang Developments Pty Ltd (Building and Property)  VCAT 65, successful resistance of application by developer under section 120 to re-open case – developer received VCAT application other than at registered address listed on the application – registered address changed, without informing the Tribunal or the builder – developer's evidence held not to be credible, default order upheld.
The King David School  H234/2019 (VCAT), settling evidence and running application to exempt school from sections 38, 44, 107 and 108 of the Equal Opportunity Act 2010, permitting the school to take measures to ensure relative gender levels in each form
Lorich v Buildspect Consulting Pty Ltd (Civil Claims)  VCAT 1088, case dealing with leave to make a second application to reopen a default order under section 120 of the VCAT Act – leave previously given where no attendance on first reopening application – client attended the first application, was unsuccessful – leave sought on basis of fresh evidence to be led – held that the same principles concerning setting aside default orders under the Rules of Court dictate when leave may be given under section 120
Featherston v OC RP000755 (Owners Corporations)  VCAT 122, interpretation of phrase 'may be arranged by' in context of whether a 25%-plus lot owner can require an owners' corporation to conduct a special resolution by ballot (based on lot entitlement) instead of show of hands (based on attendance)
Espedido v Physiotherapy Board of Australia (Review and Regulation)
Planning and Environment
Marks v Mornington Peninsula Shire Council  VCAT 919, application to amend planning permit retrospectively – shed constructed on hobby farm in Green Wedge Zone (GWZ) – consideration of if shed for an agricultural purpose.
Owners' Corporation PS507084R v Marley  VSC 95, and  VCAT 1598, trial in VCAT followed by appeal under section 148 of the Victorian Civil and Administrative Tribunal Act 1998 – claim by Owners' Corporation for an implied easement (right of way) over external terrace of a top-floor apartment providing access to the building roof, under subsection 12(2) of the Subdivision Act 1988 – case involving similar facts to Body Corporate No 413424R v Sheppard (2008) 20 VR 362 -– VCAT member failed to apply test in Sheppard or disclose path of reasoning – appeal allowed.
Ventura v Ventura (2018) 56 VR 118;  VSC 485, application by originating motion under section 49 of the Property Law Act 1958 – three co-vendors (mother, son, daughter) entered into a Contract of Sale of Real Estate – son refuses to sign related documents to enable conveyancing solicitor to process transfer, where all other parties are ready, willing, and able to perform - application by co-vendors against other co-vendor to perform the Contract of Sale, including signing Client Authorisation Form (or in his absence Prothonotary, under s 22 of the Supreme Court Act 1986) – Contract of Sale held to include obligations as between vendors and purchasers, as well as between vendors and vendors
Martin v Dyson (deceased)  SCI 2015-05051 (Supreme Court of Victoria), claim for equitable interest by proprietary estoppel over land occupied by client's parents, then client, upon promise by uncle (owner of land) of a life interest - family home sold to fund establishment of new dwelling on occupied land - whether promise extended to client - whether expectations of client/parents from promise were reasonable, or benefits amortised over 20 years' occupation (matter settled at trial).
Frigo v Perry (Owners Corporations)  VCAT 730 – instructed by Moonee Valley Legal Centre on referral from Justice Connect – action in nuisance, interference with easements implied by section 12(2) of the Subdivision Act 1988 over driveway to rear lot on on a "battleaxe block" - front owner prevented from accessing side of own home via driveway by locked gate - neighbour required to permit access.
Murthy v KPS Services Pty Ltd  SCI 2015 00728 (Supreme Court of Victoria), application under Transfer of Land Act section 90(3) to remove caveat lodged without a legitimate basis, indemnity costs sought – defendant withdrew caveat before hearing, offered to pay party/party costs - application pursued despite withdrawal – indemnity costs obtained.
Property (Tree Dispute)
Cianci v City of Melbourne  J10297803 (Magistrates' Court of Victoria), claim by homeowner for damages arising from street trees, nuisance and negligence – applicability of Road Management Act 2004 s 107, Wrongs Act 1958 s 83 – question of when damage arose (settled at trial)
O'Sullivan v The Hon. Daniel Andrews, Premier of Victoria (2016) 50 VR 600;  VSC 560 (Supreme Court of Victoria, led by Daryl J Williams QC) application for mandamus following nomination to fill vacancy in Legislative Council, but no joint sitting called as specified in section 27A of the Victorian Constitution.
Shurat HaDin – Israel Law Centre v Lynch  NSD2235/2013 (Federal Court of Australia, led by Marcus Solomon SC), action concerning unlawful discrimination under the Racial Discrimination Act 1975 (settled prior to trial).
JMG v Murray Human Services Inc (Residential Tenancies)  VCAT 875 – successful defence of NDIS service provider following notice to vacate, where tenant opposed for alleged non-compliance with Disability Act 2006 – services provided to tenant in rental property owned by the provider, but not a "group home" or "residential service" – tenancy subject to usual provisions of the Residential Tenancies Act 1997.
Director of Housing v Clyde  No. R2017/25483/00 (VCAT) – instructed by King & Wood Mallesons on referral from Justice Connect – tenant served with notice to vacate by Director, without offer of alternative accommodation – issue whether notice issued in the correct form – question of nature of evidence Director must lay before the Tribunal where nuisance alleged – consideration of Burgess v Director of Housing  VSC 648 – following initial adjournment, Director resolved to offer tenant new housing.
Lazarous v Kypri (Building and Property)  VCAT 2148, urgent interlocutory application brought following lockout of the tenant by the landlord - failure by landlord to particularise breaches in ostensible notices of breach, re-entry before time set under Property Law Act 1958 sub-s 146(2) – shown serious question to be tried, harm to tenant not adequately remedied by damages – interlocutory injunction granted – second injunction obtained after landlord removed water metre – landlord subsequent abandoned insistence on validity of notices of breach.
Glowell International v Biggin & Scott Commercial and 418 St Kilda Road (Building and Property)  VCAT 1342, issues concerning applicability of the Retail Leases Act 2003, construction of the terms of the lease, letter of offer versus signed lease - whether accounting fees incurred solely for litigation are damages or costs.
Grenville Trading v Braszell (Building and Property)  VCAT 877 (led by Thomas G Moloney), question of issue estoppel – failure of supermarket floor, second preliminary question - landlord sought declaration that lease not renewed due to finding on first preliminary question - tenant says breaches by landlord were not the subject of the previous hearing - whether Tribunal finally determined that tenant not entitled to withhold rent for alleged breach by landlord - whether tenant entitled to renew lease - held issue not finally determined.