Berry v Melbourne Magistrates' Court - [2001] VSC 228

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5323 of 2001

PETER BERRY and DEBORAH BERRY	Plaintiffs
v
MELBOURNE MAGISTRATES' COURT and	First Defendant
ROSENTHAL MUNCKTON & SHIELDS PTY LTD	Second Defendant

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JUDGE:	Gillard J
WHERE HELD:	Melbourne
DATE OF HEARING:	20, 21 June 2001
DATE OF JUDGMENT:	9 July 2001
CASE MAY BE CITED AS:	Berry v Melbourne Magistrates' Court and Anor
MEDIUM NEUTRAL CITATION:	[2001] VSC 228

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Judicial Review – Magistrates' Court claim by architect for fees for services – application under s.57 of the Domestic Building Contracts Act 1995 for stay – nature of jurisdiction. Application of s.6 of the Domestic Building Contracts Act 1995 including operation of Act – No jurisdictional error or error of law.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr M. Strang	Stamfords Solicitors
For the First Defendant	No appearance
For the Second Defendant	Mr N. R. Wallace	Davies Maloney

HIS HONOUR:

The return of a summons in a proceeding instituted by originating motion seeking Judicial Review, pursuant to Order 56 of the Rules of Court, of a decision made by a Magistrate on 7 March 2001 refusing a stay of a proceeding in the Magistrates' Court.

Parties

The plaintiffs, Peter and Deborah Berry ("the Proprietors"), are a married couple who reside at 7 Glenbervie Road, Toorak ("the property").

Mr Berry is a banker. He and his wife own the property.

The first defendant, the Melbourne Magistrates' Court, is joined pursuant to the Rules of Court to represent the Magistrate, Mr Coburn, and in accordance with the usual practice, the Court has informed this Court that the Magistrate will not take part in the proceedings and will abide the decision.

The third defendant, Rosenthal Munckton & Shields Pty Ltd, carries on the business of architect ("the Architect").

On 16 October 1998, the Proprietors and the Architect entered into an agreement, pursuant to which the Architect was to perform architectural and like services for the Proprietors in respect of alterations and additions to their property.

Proceeding in Magistrates' Court

On 27 July 2000, the Architect issued a complaint in the Magistrates' Court at Melbourne against the Proprietors, seeking the sum of $24,109.22 for work and labour done. The complaint did not specify the nature of the work and labour, and the particulars of the claim asserted that the works were done at the request of the Proprietors during the period from October 1998 to February 2000.

On 20 October 2000, the Proprietors, who were then acting for themselves, filed a notice of defence. The notice asserted that the Architect breached its contract in that, it failed to deliver the agreed quality of work performance and dedication of key personnel to the work, it breached the terms of "timeliness of the performance, including long periods of inaction and abandonment", it did not complete the work in respect of the stages claimed for payment, and finally, it was seeking payment which was overstated "in that it is…

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: [2001] VSC 228
Decision Date: 9 July 2001

CaseChat Overview and Summary

The case of Berry v Melbourne Magistrates' Court involved an architect, the applicant, seeking to recover professional fees from a builder under the Domestic Building Contracts Act 1995. The builder opposed the claim in the Magistrates' Court and the architect applied to the Supreme Court for a stay of the proceedings, arguing that the Magistrates' Court lacked jurisdiction over the matter. The applicant contended that the Magistrates' Court's jurisdiction was confined to disputes under the Act and that the claim for professional fees was not within that scope.

The primary legal issue before the court was whether the Magistrates' Court had jurisdiction to hear the architect's claim for professional fees, and if not, whether the Supreme Court had the authority to grant a stay of the proceedings. The court had to interpret the relevant provisions of the Domestic Building Contracts Act 1995, particularly section 6, which outlines the operation and application of the Act, to determine the scope of the Magistrates' Court's jurisdiction.

In determining the matter, the court examined the language of section 6 of the Domestic Building Contracts Act 1995 and concluded that there was no jurisdictional error or error of law in the Magistrates' Court's handling of the case. The court found that the architect's claim for professional fees was indeed within the scope of the Act and that the Magistrates' Court did possess the necessary jurisdiction to adjudicate on such claims. Consequently, the application for a stay was dismissed as the court found no basis for such a remedy.

The court's decision was clear: the Magistrates' Court had jurisdiction to hear the architect's claim for professional fees under the Domestic Building Contracts Act 1995. No jurisdictional error was identified, and the application for a stay was dismissed. The architect's claim would proceed in the Magistrates' Court as originally filed.

Orders