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Lovegrove Smith & Cotton

Address: 2/405 Little Bourke Street Melbourne CBD VIC 3000

03 9600 ...

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Lovegrove Smith & Cotton are construction & planning law experts. Three construction law partners with a complement of dedicated construction lawyers make us one of the largest construction & planning boutique law practices in Australia.

Our firm was established in 1993.

There are areas of the law where this firm is without peer, primarily in the construction-related sector. Stephen Smith is the Managing Partner and prior to joining the firm was a senior barrister of 25 years standing. Another of our partners,, was the principal...

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Business Hours

Monday 9:00am to 5:00pm
Tuesday 9:00am to 5:00pm
Wednesday 9:00am to 5:00pm
Thursday 9:00am to 5:00pm
Friday 9:00am to 5:00pm


Legal Professional Privilege And Expert Evidence – What Must An Expert Disclose?

Legal professional privilege protects certain communications between lawyers and clients, and lawyers and experts, with the effect that those communications do not have to be disclosed during legal proceedings. However, not all documents produced by experts in the course of litigation will be protected by privilege.

The Critical Ingredients Of Mitigation In Building Misconduct Matters

They key to resolving misconduct investigations is not always about denying every allegation at every cost. This week Justin Cotton, partner and head of practitioner advocacy, talks about the broad based strategy that must be used, dispassionately, when trying to resolve misconduct inquiries in the best possible fashion for the building practitioner.

How To Issue A Building Dispute In VCAT – What You Need To Know

The Victorian Civil & Administrative Tribunal (VCAT) is established to hear and decide on a range of matters – including domestic building disputes – without the formality, procedures and cost of the traditional court system. Read Michelle Janczarski’s article to find out what you need to know when issuing a building dispute in VACT.

Building Directions, Notices And Orders. Where Does The Responsibility Lie? (Victorian Readership)

It is uncontroversial that both municipal building surveyors and private surveyors have the power to issue building notices and building orders pursuant to the Building Act 1993 (“the Act”) and Building Regulations 2006 (“the Regulations”). However, when building disputes arise, the question of who should be issued with a building order or notice is often misunderstood. The purpose of this article is clarify who building surveyors have the power to issue directions, notices and orders to, and in what circumstances.

To the Victor the Spoils…Unless it’s the Costs Award Powers Under Section 109 of the Victorian Civil and Administrative Tribunal (Victorian readership)

This article looks at the problematic nature of costs at VCAT. Having regard to the interpretation of section 109 of the Victorian Civil and Administrative Tribunal Act 1998 traditionally to the victor goes the spoils. Section 109 has resulted in the innocent being burdened with costs which traditionally would be awarded against the wrongdoer.

Taking On The Local Council: How To Resolve A Planning Dispute At VCAT

When planning a development project, all developers hope that their planning permit will be approved by the local Council without any problems or delays. However, this isn’t always the case and any condition or delay of grant of the planning permit can have an extremely detrimental effect upon the viability and profit of the development. Luckily for developers, the Victorian Civil and Administrative Tribunal (VCAT) provides a recourse for them to challenge the decision of a Council regarding planning permits.

What is a Restrictive Covenant? (Australian readership)

A restrictive covenant is a private agreement between two or more landowners that imposes restrictions on the use and development of a piece of land. Restrictive covenants can be registered on the title of that piece of land, and will then be legally binding on all subsequent owners. This article by Michelle Janczarski, Solicitor, Lovegrove Solicitors, discusses the nature of restrictive covenants, common circumstances where they are used, and ways to remove or alter restrictive covenants.

Possession is 9/10ths of the Law: So What is Adverse Possession? (Australian readership)

It is commonly known that there is a doctrine of ‘Adverse Possession’ which lets someone who encroaches onto their neighbours land take legal title of that land in certain circumstances. It is important to know that isn’t enough to use part of your neighbour’s land as your own, or deprive them of using it. There are requirements that must be met to establish an adverse possession claim. If, however, the requirements are met then an adverse possession claim can be an excellent way to obtain legal title over a parcel of land that your neighbour hasn’t stopped you from using as your own or, as in some cases, you didn’t even realise was not part of your land.

What Does Unfair Dismissal Mean? (Australian readership)

This article looks at the onerous nature of unfair dismissal legislation which businesses need to be aware of in this tough economic climate. Critical concepts of protected employees, unfair dismissal and remedies available under the Fair Work Act 2009 are explored.

Building Surveying Fees And The Race To The Bottom

Building Surveying Fees and the Race to the Bottom (Australian readership) If there is one profession that should have the power to charge healthy fees that are commensurate with the risk involved to practitioners, it is the building surveying profession. What other profession is legislated as an industry gate keeper?

What Is A Fair And Reasonable Estimate? (Victorian readership)

Whether you are an owner or a builder you should know what your rights and responsibilities are under a cost plus contract. This article explores what is involved in establishing a fair reasonable estimate of building cost as well as how VCAT interprets section 13 of the Domestic Building Contracts Act 1995.

Is There Such Thing As A ‘Right To A View’?

A common problem with sweeping views is the very real possibility that it is only a matter of time until someone decides they want to build in front of you and blocks the beautiful view that, most likely, induced you to buy that particular property in the first place. Once that happens, the next question is whether you can enforce a ‘Right to a View’ to prevent the impairment of your aspect from being blocked or obscured.

Risky Territory: Taking Over the Guard from an Earlier Builder

Justin Cotton, Partner and Head of Practitioner Advocacy, gives an overview on what builders need to be aware of and the associated risks when taking over work from terminated or insolvent builders, owner builders and insurance jobs. It can be a hornets nest if a secondary builder ends up in a VCAT dispute with the owner, a quagmire trying to separate your own defects from those of the first builder, and grasping hold of the legitimate variations.

Heritage Overlays: Part 2 - Developing in a Heritage Overlay Area

In Part II of a two-part series, Jennifer Barry looks at the elements considered by Councils when determining whether to grant a planning permit in relation to potential development of a property in a heritage-listed area.

Heritage Overlays: Part I - The Implications Beyond the Home

In Part I of a two-part series, Jennifer Barry looks at the implications of a heritage-overlay on aspects of a residential property beyond the home. While heritage-listed properties offer many benefits and privileges in terms of the beauty and history of your home, it is important to be aware of the additional requirements when renovating or building on your property, as owners of a Melbourne heritage-listed home found out the hard way when they applied to replace the fence on their property.

Why ‘Fessing Up’ Trumps Defeat in the Trenches: The Need to Present Convincing Mitigation in Building Misconduct

For misconduct matters involving private certifiers or other building practitioners, getting a plea in mitigation right is about getting all the key ingredients together the first time. This is not necessarily about ‘waving the white flag’, as Justin Cotton (Partner and head of practitioner advocacy) writes in today’s article.

International Commercial Litigation: the Dangers for Business, and the Solutions to Mitigate Risk

In a globalised world, it is more true than ever that there is a wealth of opportunity for businesses prepared to engage with the world and undertake international trade and enter overseas ventures. However as is the case in most aspects of life, the path which leads to great rewards, winds its way through unchartered territories and along lost coastlines, with potential risks present every step of the way. This article exposes some of the dangers lurking in the shadows which can obliterate the unwary, and proposes some potential solutions to make the experience safer, by engaging in a degree of front-end planning.

When is a Concrete Crack a Defect? Intro by Stephen Smith (Australian readership)

Some years ago we had the pleasure of having Angelo Simonetto in our employ. Angelo is now the manager of the legal department at the MBA and by all accounts is doing a sterling job. When he was with us he wrote one of the best articles that have ever been published by lawyers that have graced this firm. ‘When is Concrete Crack a Defect’ is an absolute beauty and I commend it to you.

Who Pays the Piper Calls the Tune: Building Certification and the Perils of Conflict of Interest

Is the very nature of private building surveying or certification inherently prone to conflicts of interest? In this week’s bulletin, Justin Cotton, Partner and head of Practitioner Advocacy, takes an in depth look at a major NSW decision on conflict of interest for private accredited certifiers, before examining the situation in Victoria. He finds that while there may be differences in style, the nature of conflict of interest and its capacity to lead to misconduct investigations remains the same

3 Part Series on Debt Collection Prelude (Australian readership)

This week we would like to inform you about an upcoming 3 part series on debt collection, which will be presented over the forth coming weeks in Lovegrove Solicitors’ e-bulletin. The aim is to look at what steps to take to maximise the chance of debt recovery, beginning from the moment of first incurring a debt until finally receiving payment of that debt.


In many high end residential building projects, the role of the architect in administering the contract is key, as is their involvement in design of the works. Justin Cotton, Partner, examines why the architect administering such contracts can be said to be ‘wearing two hats’, that of the Owner’s agent but also an impartial umpire in valuing payment claims.

The Currency of Registration: Why it’s Critical for Engineers in Construction to be Registered (Victorian readership)

It is crucial for engineers to be registered under the Victorian Building Act. Justin Cotton Partner & Head of Practitioner Advocacy at Lovegrove Solicitors, clinically analyses the importance of registration for engineers with reference to the Victorian Building Act. This article is a must read for all those in the engineering profession as it is an offence to use the title of engineer, if the use relates to the building industry and one is not registered in the appropriate class.


This article highlights the importance of lodging payment schedules on time and filing notices of appearance. The article considers a Victorian court decision on point; where payment schedules were lodged late and allegations of fact were taken to be admitted due to a failure to lodge a notice of appearance. The article was written by Justin Cotton, Partner of Lovegrove Solicitors and although the case concerned was decided in 2010, the points raised are still relevant today. The article is well worth a read for any in the construction industry, especially builders and sub-contractors.