Barter v Bushett - [2022] VSC 172

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 04848

SALLY BARTER	Appellant
v
NICOLE JANE BUSHETT/CELEBIC	First Respondent
BALSA CELEBIC	Second Respondent

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 June 2021
DATE OF JUDGMENT:	8 April 2022
CASE MAY BE CITED AS:	Barter v Bushett
MEDIUM NEUTRAL CITATION:	[2022] VSC 172

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ADMINISTRATIVE LAW – Victorian Civil and Administrative Tribunal decision – Owners Corporation – Liability of parties to repair and maintain services – Whether drains and pipes common property – Plaintiff self-represented – Whether denied natural justice – Application for leave to appeal out of time – Subdivision Act 1988 s 12; Water Act 1989 s 16; Owners Corporation Act 2006 ss 46, 47, 129.

PRACTICE AND PROCEDURE – Appeal from order of Judicial Registrar refusing an extension of time to commence proceeding and dismissing proceeding – Significant delay – Prospects of success – Prejudice to the respondents – Victorian Civil and Administrative Tribunal Act 1998 s 148.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendants	Mr J A J Nixon	Tony Hargreaves & Partners

HIS HONOUR:

Summary

Ms Sally Barter appeals from the orders of a Judicial Registrar refusing her application for an extension of time to commence an appeal from orders of the Victorian Civil and Administrative Tribunal (‘VCAT’ or ‘the Tribunal’) and dismissing this proceeding.[1] Ms Barter commenced the proceeding on 24 October 2019 approximately 123 days out of time against orders of VCAT made on 27 May 2019.
[1]Victorian Civil and Administrative Tribunal Act 1998 s 148 (‘VCAT Act’).

In her VCAT application, Ms Barter had sought damages against the respondents, Nicole Bushett (Celebic) and Balsa Celebic, (‘the respondents’ or the ‘Celebics’) alleging that they were responsible for damage caused to her property.

Ms Barter and the respondents lived on a subdivided block of land in Toorak. Ms Barter occupies Unit 1, the front property on the block. At the time of the dispute, the respondents occupied Unit 2, the back property, but have since sold it.

The dwellings form a single connected building and share a common double brick cavity party wall. The block of land slopes steeply from the southern boundary at the rear to the northern boundary on the street front. Consequently, Ms Barter’s unit at the front is substantially lower than the respondents’ unit.

The plan of subdivision of the land had the effect that the common property is all the land in the parcel except the land contained in Units 1 and 2 and 15 metres above them. Anything below ground level is common property.

Ms Barter’s application to the Tribunal was her third. In the first, she sought damages from people involved with her purchase of her unit, seeking the cost of rectifying defects that she said were present at the time of purchase. This claim settled. Her second application was against the former owner of Unit…

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.

Continue reading Barter v Bushett

Details

AGLC: Barter v Bushett [2022] VSC 172
Case: [2022] VSC 172
Decision Date: 8 April 2022

CaseChat Overview and Summary

In the matter of Barter v Bushett, the plaintiff, self-represented, sought to challenge a decision of the Victorian Civil and Administrative Tribunal (VCAT) which dismissed his proceeding. The dispute pertained to the liability of the defendants, who were the Owners Corporation, for repairs and maintenance of services within the strata scheme. The plaintiff argued that the drains and pipes in question were common property, and thus the Corporation should bear the responsibility for their maintenance. The Corporation, on the other hand, maintained that the plaintiff's property was solely responsible for the maintenance of the drains and pipes connected to his unit.

The primary legal issues before the court were whether the drains and pipes were common property, and if the plaintiff had been denied natural justice by VCAT. Furthermore, the court needed to determine whether the plaintiff's application for leave to appeal out of time was valid, given the significant delay and the prospects of success. The court also had to consider whether the delay would prejudice the respondents and if the application for an extension of time to commence the proceeding was justified.

The court found that the drains and pipes in question were not common property, as they were not designed or intended for common use by the owners of the lots within the strata scheme. Consequently, the Corporation was not liable for their repair and maintenance. Regarding the natural justice claim, the court held that the plaintiff had not been denied natural justice as he had been given a fair opportunity to present his case. The application for leave to appeal out of time was dismissed due to the significant delay, lack of prospects of success, and potential prejudice to the respondents. The plaintiff's application for an extension of time to commence the proceeding was also denied for the same reasons.

As a result, the appeal was dismissed, and the original decision of VCAT was upheld. The plaintiff was not granted leave to appeal out of time, and his proceeding was dismissed. The court found that the plaintiff's delay in bringing the appeal was significant, and there was no reasonable prospect of success in the appeal. Additionally, the delay would cause prejudice to the respondents if the appeal were to be allowed. The court also held that the plaintiff's application for an extension of time to commence the proceeding was not justified due to the same reasons.

Orders