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APM Group (Aust) Pty Ltd v Centurion Australia Investments Pty Ltd

APM Group (Aust) Pty Ltd v Centurion Australia Investments Pty Ltd

Case [2022] VSC 637 25 October 2022

Statutory Construction

Adverse Possession

Easements & Covenants

Breach of Contract

Statutory Interpretation

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

TECHNOLOGY, ENGINEERING AND CONSTRUCTION LIST

S ECI 2020 02323

APM GROUP (AUST) PTY LTD (ACN 095 366 546)	Plaintiff
v
CENTURION AUSTRALIA INVESTMENTS PTY LTD (ACN 166 487 118) ATF CENTURION MELBOURNE STUDENT VILLAGE TRUST	Defendant

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JUDGE:	Stynes J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 July 2022
DATE OF JUDGMENT:	25 October 2022
CASE MAY BE CITED AS:	APM Group (Aust) Pty Ltd v Centurion Australia Investments Pty Ltd
MEDIUM NEUTRAL CITATION:	[2022] VSC 637

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BUILDING AND CONSTRUCTION — Statutory construction — Whether the Domestic Building Contracts Act 1995 (Vic) applies to building work performed in relation to student accommodation — Domestic Building Contracts Act 1995 (Vic) ss 5(1)(a), 5(1)(e), 6(1)(c), 6(2) applied — Domestic Building Contracts Regulations 2017 (Vic) reg 8(b) applied — Verraty Pty Ltd v Richmond Football Club Ltd (2020) 63 VR 150 applied.

STATUTORY CONSTRUCTION — Domestic Building Contracts Act 1995 (Vic) s 5(1)(a) — Whether building work comprises the construction of a ‘home’ — Whether premises are ‘residential premises’ — Whether premises are ‘intended for permanent habitation’ — Re Maclaw No 651 Pty Ltd v HIH Casualty and General Insurance Ltd (1999) 15 VAR 302 applied — H Buildings v Owners Corporation [2017] VSC 802 applied.

STATUTORY CONSTRUCTION — Domestic Building Contracts Act 1995 (Vic) s 5(1)(e) — Whether building work is ‘on land that is zoned for residential purposes under a planning scheme’ — Effect of the Planning and Environment Act 1987 (Vic) and Victorian Planning Provisions — Consideration of mixed use zone and mixed use purposes — Fletcher Construction Australia Ltd v Southside Tower Developments Pty Ltd (1996) 11 VAR 1 applied — Piastrino v Seascape Constructions Pty Ltd [2022] VSC 202 applied.

STATUTORY CONSTRUCTION — Domestic Building Contracts Act 1995 (Vic) s 6(1)(c) — Whether building work relates to ‘a building intended to be used only for business purposes’ — Re Maclaw No 651 Pty Ltd v HIH Casualty and General Insurance Ltd (1999) 15 VAR 302 applied.

STATUTORY CONSTRUCTION — Domestic Building Contracts Act 1995 (Vic) s 6(2) — Domestic Building Contracts Regulations 2017 (Vic) reg 8(b) — Whether building work relates to ‘premises that are used or intended to be used at a school, university or other educational or training institution as accommodation for students or staff’ — Definition of ‘at’ — Degree of association or connection between premises and educational institution — Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205 applied.

WORDS AND PHRASES — ‘domestic building work’ — ‘domestic building contract’ — ‘home’ — ‘residential premises’ — ‘permanent habitation’ — ‘land zoned for residential purposes’ — ‘mixed use zone’ — ‘mixed use purpose’ — ‘business purposes’ — ‘student accommodation’.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	R Craig QC and W Stephenson	Thomson Geer
For the Defendant	R Andrew	Colin Biggers & Paisley

TABLE OF CONTENTS

A.. Introduction

B... Summary of Decision

C.. Background

D.. The DBCA

E...…

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

AGLC: APM Group (Aust) Pty Ltd v Centurion Australia Investments Pty Ltd [2022] VSC 637
Case: [2022] VSC 637
Decision Date: 25 October 2022

CaseChat Overview and Summary

The case between APM Group (Aust) Pty Ltd and Centurion Australia Investments Pty Ltd was heard in the Supreme Court of Victoria. The central dispute was whether the Domestic Building Contracts Act 1995 (Vic) applied to building work carried out on premises intended for student accommodation. The primary legal issue was whether the construction work constituted 'domestic building work' under the Act, and if the premises were 'residential premises' intended for permanent habitation or used for business purposes. The court had to determine whether the building work was performed on land zoned for residential purposes and whether the premises were used or intended to be used at an educational institution as accommodation for students or staff.

The court examined various sections of the Act, including sections 5(1)(a), 5(1)(e), 6(1)(c), and 6(2), as well as relevant regulations. It considered the definitions of 'home','residential premises', and 'permanent habitation', applying precedents such as Re Maclaw No 651 Pty Ltd v HIH Casualty and General Insurance Ltd and H Buildings v Owners Corporation. The court also assessed whether the land was zoned for residential purposes, taking into account mixed use zones and purposes, and referred to Fletcher Construction Australia Ltd v Southside Tower Developments Pty Ltd and Piastrino v Seascape Constructions Pty Ltd. Additionally, the court evaluated whether the premises were intended for business purposes or for use by students or staff at an educational institution, applying Collector of Customs (Tas) v Flinders Island Community Association.

In its reasoning, the court concluded that the building work did not constitute 'domestic building work' under the Act. The premises were not intended for permanent habitation or used solely for business purposes, and they were not located on land zoned for residential purposes. Furthermore, the association between the premises and the educational institution did not meet the statutory requirements for student accommodation. The court found that the work did not fall within the scope of the Domestic Building Contracts Act 1995 (Vic).

The Supreme Court of Victoria ruled that the Domestic Building Contracts Act 1995 (Vic) did not apply to the building work performed on the premises. The court's decision was grounded in the interpretation of statutory provisions and relevant case law, which determined that the work did not meet the criteria for 'domestic building work'.

Orders