A40 Construction and Maintenance Group Pty Ltd v Smith - [2021] VSC 575

IN THE SUPREME COURT OF VICTORIA

AT MELBOURNE
COMMON LAW DIVISION
EMPLOYMENT AND INDUSTRIAL LIST

S ECI 2021 01543

A40 CONSTRUCTION AND MAINTENANCE GROUP PTY LTD AS TRUSTEE FOR THE A40 CONSTRUCTION UNIT TRUST	Plaintiff
v
AMANDA SMITH	First Defendant
ANDREW GOULSBRA	Second Defendant

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JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	9 September 2021
DATE OF RULING:	10 September 2021 (given ex tempore, revised)
CASE MAY BE CITED AS:	A40 Construction and Maintenance Group Pty Ltd v Smith & Anor
MEDIUM NEUTRAL CITATION:	[2021] VSC 575

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PRACTICE AND PROCEDURE – Stay application pursuant to s 57 of the Domestic Building Contracts Act 1995 (Vic) – Whether proceeding was an action arising wholly or predominantly from a domestic building dispute – Defendants’ application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D T J Stavris	Kyard Business Law
For the Defendants	Mr I Fatah, solicitor	Boutique Lawyers

TABLE OF CONTENTS

Background......................................................................................................................................... 1

Pleadings.............................................................................................................................................. 1

Defendants’ submissions................................................................................................................. 6

Plaintiff’s submissions..................................................................................................................... 7

Applicable Principles........................................................................................................................ 8

Conclusion......................................................................................................................................... 11

HER HONOUR:

Background

By summons filed on 30 August 2021, the defendants apply to have this proceeding stayed on the basis it could be heard by the Victorian Civil and Administrative Tribunal (‘the Tribunal’) pursuant to s 57(2) of the Domestic Building Contracts Act 1995 (‘the Act’). The plaintiff opposes the application.

I will dismiss the defendants’ application for reasons that follow.

Pleadings

This proceeding was commenced by writ and statement of claim filed on 11 May 2021 and was entered into the Employment and Industrial List (Common Law Division) on 12 May 2021.

On 30 July 2021, the defendants filed a defence.

On 27 August 2021, the plaintiff filed a reply.

The following facts are agreed:

(a) the plaintiff operates a building business;[1]
[1]The plaintiff pleads it operates a business as a licensed builder. The defendants deny this and say that the plaintiff has been a registered builder since 1 July 2021 and one of its directors, Mr Landy, has been a registered builder since 9 November 2011.

(b) there was an employment relationship between the first defendant and either the plaintiff company or its trustee, from about February 2014 until about July 2017;[2]

(c) the second defendant is the registered proprietor of the land known as 469 Healesville-Koo Wee Rup Road, Healesville (‘the property’);[3] and

(d) building works were undertaken on the property and the plaintiff invoiced the second defendant for building works.[4] The second defendant paid some of those invoices.[5]

[2]Statement of claim filed 11 May 2021 [4]; Defence filed 30 July 2021 [2].

[3]Ibid [2]; Ibid [3].

[4]Ibid [6]; Ibid [6].

[5]Ibid.

On 5 April 2016, the second defendant executed a written contract with a cover page titled “Victorian New Homes Contract” and with his property listed.[6] The defendants say that the building contract was with Mr Thomas Landy, who is named as the “registered building practitioner” in the contract.[7] The plaintiff says it is a party to the contract. The contract names A40 Construction Unit Trust…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] VSC 575
Decision Date: 10 September 2021 (given ex tempore, revised)

CaseChat Overview and Summary

The application in A40 Construction and Maintenance Group Pty Ltd v Smith was heard in the County Court of Victoria. The plaintiff, A40 Construction, a company involved in construction and maintenance, sought to enforce a judgment against the defendants, Smith. The dispute arose from a domestic building contract where A40 Construction claimed the defendants failed to pay for services rendered. The defendants sought a stay of the proceedings under section 57 of the Domestic Building Contracts Act 1995 (Vic), arguing that the matter was predominantly a domestic building dispute and should be dealt with under the relevant provisions of the Act.

The primary legal issue for the court to determine was whether the proceeding was an action arising wholly or predominantly from a domestic building dispute. The defendants argued that since the matter involved a domestic building contract, it should be stayed under the provisions of the Act. A40 Construction contended that the proceeding was not predominantly a domestic building dispute, as it primarily concerned the enforcement of a judgment rather than the original contractual obligations.

The court dismissed the defendants’ application for a stay. In its reasoning, the court noted that the proceeding was about enforcing a judgment and not about the original domestic building contract. The court found that the primary nature of the proceeding was to enforce a judgment debt and, as such, it did not arise wholly or predominantly from a domestic building dispute. Consequently, the application for a stay was dismissed.

The court’s decision was final, and no further orders were made regarding the stay application. The proceeding to enforce the judgment debt continued without the intervention of the provisions under the Domestic Building Contracts Act 1995 (Vic).

Orders