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Bahl Enterprises Pty Ltd v Sikandar

Bahl Enterprises Pty Ltd v Sikandar

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Case Copied 3 July 2025 38 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2023 05351

BAHL ENTERPRISES PTY LTD (ACN 118 818 152)	Applicant
v
ARBAB SIKANDAR	Respondent

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JUDGE:	OSBORN JA
WHERE HELD:	Melbourne
DATE OF HEARING:	25 June 2025
DATE OF JUDGMENT:	3 July 2025
CASE MAY BE CITED AS:	Bahl Enterprises Pty Ltd v Sikandar
MEDIUM NEUTRAL CITATION:	[2025] VSC 394

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EXTENSION OF TIME —Whether time for application for leave to appeal on question of law should be extended — Unexplained delay —Period of delay significant — Proposed ground of appeal directed to the question whether VCAT order beyond jurisdiction on its face — Consequential hearing under order not yet completed — Extension of time granted.

LEAVE TO APPEAL FROM VCAT— Domestic building dispute — Whether Tribunal order determining liability and providing for subsequent assessment of damages within ambit of s 78 of the Victorian Civil and Administrative Tribunal Act 1998 — Whether Tribunal functus officio after determination of liability under s 78 — Meaning of ‘determine’ in s 78 — Consistent with statutory text, context and purpose for s 78 to extend to determination of a proceeding by way of a decision as to liability coupled with an order providing for the consequential assessment of damages — No real prospect of success — Leave to appeal refused.

LEAVE TO APPEAL FROM VCAT — Whether respondent caused ‘unnecessary disadvantage’ for the purposes of s 78 by failing to take an active part in proceedings —Where delay and inaction found to unnecessarily disadvantage applicant — No real prospect of success — Leave to appeal refused.

LEAVE TO APPEAL FROM VCAT — Whether Tribunal failed to consider that the applicant’s documents comprising the claim were deficient — Where points of claim sufficiently identified cause of action for damages arising from breaches of implied warranties — Where documents provided basis for the assessment of damages by reference to rectification costs — No real prospect of success — Leave to appeal refused.

Victorian Civil and Administrative Tribunal Act 1998, ss 3, 75, 76, 77, 78, 80, 98, 109, 111, 120, 148.
Supreme Court (General Civil Procedure) Rules 2015, rr 21, 51, 52.
Domestic Building Contracts Act 1995, s 4(b).

Concrete Construction Systems Pty Ltd v Inglese [2024] VSC 266; Brandwill Holdings Pty Ltd v Peter Jonson [2014] VSC 356; Shire of Sherbrooke v F L Byrne Pty Ltd (1986) 63 LGRA 320; Victorian Economic Development Corporation v Clovervale Pty Ltd & Ors (1992) 1 VR 596, referred to.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	L Wirth	Hughes Legal Pty Ltd
For the Respondent	A Flower (solicitor)	FCG Legal Pty Ltd

HIS HONOUR:

Introduction

This case raises a question of significant practical importance concerning the ambit of the power granted to the Victorian Civil and Administrative Tribunal (the ‘Tribunal’) pursuant to s 78 of the Victorian Civil and Administrative Tribunal Act 1998 (the ‘Act’). Under that provision…

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: [2025] VSC 394
Decision Date: 3 July 2025

CaseChat Overview and Summary

The case of Bahl Enterprises Pty Ltd v Sikandar involved a dispute concerning a domestic building contract, where the applicant sought leave to appeal from the Victorian Civil and Administrative Tribunal (VCAT). The applicant argued that VCAT had failed to consider certain documents, that the respondent had caused unnecessary disadvantage, and that VCAT's order was beyond its jurisdiction. The Supreme Court of Victoria was tasked with determining whether the applicant's application for leave to appeal was filed within the requisite time and whether the grounds for appeal were sufficient.

The court considered several legal issues, including whether the time for the application for leave to appeal should be extended due to unexplained delay, whether VCAT's order determining liability and providing for subsequent assessment of damages was within its jurisdiction, whether the respondent's delay and inaction caused unnecessary disadvantage to the applicant, and whether VCAT failed to consider that the applicant’s documents were deficient. The court also needed to interpret the meaning of ‘determine’ in section 78 of the Victorian Civil and Administrative Tribunal Act 1998 to decide whether VCAT was functus officio after determining liability.

The court found that while there was an unexplained delay, the proposed ground of appeal, which was whether VCAT's order was beyond its jurisdiction, was significant enough to warrant an extension of time. The court held that section 78 of the Act extended to a determination of a proceeding by way of a decision as to liability coupled with an order providing for the consequential assessment of damages. The court also found that there was no real prospect of success on the grounds of unnecessary disadvantage or deficient documents, and therefore, the application for leave to appeal was refused. The court considered the statutory text, context, and purpose of the Act, as well as relevant case law, in reaching its decision.

The Supreme Court granted an extension of time for the application for leave to appeal but ultimately refused leave to appeal on the merits.

Orders