Brocon Group Pty Ltd v Strathmore on the Park Pty Ltd (Ruling)
[2025] VCC 1136
•13 August 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
BUILDING CASES LIST
Case No. CI-25-01001
| BROCON GROUP PTY LTD (ACN 120 337 813) | Plaintiff |
| V | |
| STRATHMORE ON THE PARK PTY LTD (ACN 616 832 298) | Defendant |
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JUDGE: | HER HONOUR JUDGE KIRTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 June 2025 | |
DATE OF RULING: | 13 August 2025 | |
CASE MAY BE CITED AS: | Brocon Group Pty Ltd v Strathmore On The Park Pty Ltd (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1136 | |
REASONS FOR RULING
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Subject:CONTRACTS - BUILDING AND CONSTRUCTION – DOMESTIC BUILDING CONTRACTS
Catchwords: Building and construction – domestic building dispute – application under s 57 Domestic Building Contracts Act 1995 (Vic) to stay the proceeding on the basis that it concerns a “domestic building dispute” – whether proceeding could be heard by VCAT under subdivision 1 of Part 5 of the Act
Legislation Cited: Domestic Building Contracts Act 1995 (Vic); Victorian Civil and Administrative Tribunal Act 1998 (Vic); Victorian Civil and Administrative Tribunal Rules1998 (Vic); Victorian Civil and Administrative Tribunal Rules2018 (Vic); Civil Procedure Act 2010 (Vic).
Cases Cited:Impresa Construction v Oxford Building [2021] VCC 1146; Uber Builders and Developers Pty Ltd v MIFA Pty Ltd & Anor [2021] VCC 1677; Mooney & Anor v Fanissa Pty Ltd [2024] VCC 1032; Nettleton v Vero Insurance Ltd & Anor [2008] VSC 554.
Ruling: Application granted; proceeding is stayed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | M T LaPirow | Davies Moloney |
| For the Defendant | K J Naish | Darrer Muir Fleiter Lawyers |
HER HONOUR:
1 This is an application by the defendant (Strathmore) for the proceeding:
(a) to be stayed pursuant to s 57 of the DomesticBuilding Contracts Act1995 (Vic) (the Act); or
(b) alternatively, to be dismissed (alternatively stayed) under s 57A of the Act.
2 Strathmore submits the proceeding is a ‘domestic building dispute’ as defined by s 54 of the Act, as:
(a) it arises out of the construction of 18 residential townhouses (the Works) in the suburb of Strathmore, Victoria, being land owned by Strathmore (the Property). These are clearly domestic buildings and the work to build them was domestic building work;
(b) Strathmore and the plaintiff (Brocon) entered into an HIA Victorian Costs Plus Contract (the Contract) to construct the Works on 2 September 2022. This is a domestic building contract;
(c) by its statement of claim, Brocon seeks payment for an invoice for works undertaken at the Property;
(d) Strathmore disputes any liability to pay, and further disputes that the Contract is enforceable, because Brocon did not give a reasonable estimate of the total cost as required by s 13 of the Act; and
(e) the proceeding is accordingly a dispute between a building owner and a builder in relation to a domestic building contract or the carrying out of domestic building work, as contemplated by s 54 of the Act.
3 Further, no certificate of conciliation has been issued by Domestic Building Dispute Resolution Victoria (DBDRV). Brocon has not requested Strathmore to participate in a conciliation with DBDRV, and no conciliation has been conducted, nor has Brocon obtained leave to commence this action in this court, as is required by s 57A of the Act.
4 Strathmore opposes the application. It accepts that ‘the Contract was subject to various provisions of the Act which may, in many circumstances, establish that VCAT is the primary tribunal to hear and determine such matters.’[1] However it submits there are two reasons why the Court should not accede to the application:
(a) following the reasoning of Burchell J in Impresa Construction v Oxford Building[2] (Impresa) and in Uber Builders and Developers Pty Ltd v MIFA Pty Ltd & Anor[3] (Uber); and
(b) although the cause of action is for the balance of money owed under a "regulated" contract, it is not a "dispute" within the meaning of the Act.
[1]Plaintiff’s submissions dated 11 June 2025 [1].
[2]Impresa Construction v Oxford Building [2021] VCC 1146 (‘Impresa’).
[3]Uber Builders and Developers Pty Ltd v MIFA Pty Ltd & Anor [2021] VCC 1677 (‘Uber’).
The legal principles – section 57
5 Section 57 of the Act provides as follows:[4]
[4]Domestic Building Contracts Act 1995 (Vic) s 57 (‘the Act’ or ‘DBC Act’).
VCAT to be chiefly responsible for resolving domestic building disputes
(1)This section applies if a person starts any action arising wholly or predominantly from a domestic building dispute in the Supreme Court, the County Court or the Magistrates' Court.
(2)The Court must stay any such action on the application of a party to the action if—
(a)the action could be heard by VCAT under this Subdivision; and
(b)the Court has not heard any oral evidence concerning the dispute itself.
(2A)The Court is not required to stay an action referred to in subsection (1) if the Court is satisfied that the action raises, or there are reasonable grounds for the Court to consider that the action may in the future raise, a controversy involving federal subject matter (within the meaning of section 57A(1) of the Victorian Civil and Administrative Tribunal Act 1998 ) that VCAT has no jurisdiction to exercise judicial power to resolve.
(3)This section does not apply to any matter struck out by VCAT under section 77 of the Victorian Civil and Administrative Tribunal Act 1998.
(4)If an action is stayed under this section, any party to the action may apply to VCAT for an order with respect to the dispute on which the action was based.
(5)If a person applies to VCAT under subsection (4) VCAT must notify the Court and on such notification the Court must dismiss the action.
(6)Subsection (5) does not apply if VCAT refers the matter to the Court under section 77(3) of the Victorian Civil and Administrative Tribunal Act 1998.
6 I recently considered this section and the authorities in my decision of Mooney & Anor v Fanissa Pty Ltd[5] (Mooney). I concluded ‘there is little room for debate about the meaning of s 57(2). The legislation provides that if the prerequisites are met, the Court must stay the proceeding if the action could be heard by VCAT.’
[5]Mooney & Anor v Fanissa Pty Ltd [2024] VCC 1032 (‘Mooney’).
7 The prerequisites to a stay are that:
(a) the action arises wholly or predominantly from a domestic building dispute;
(b) the Court has not yet heard any oral evidence; and
(c) the action could be heard by VCAT under the Subdivision.[6]
[6]Nettleton v Vero Insurance Ltd & Anor [2008] VSC 554, 10 [15].
8 The section does not apply in certain circumstances, none of which are relevant here (if federal subject matter is raised or the matter was previously struck out by VCAT under s 77 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act)).
9 In Mooney I set out the background to and purpose of s 57. I also discussed the previous decisions applying this section, including the decisions of Burchell J in this Court of Impresa and Uber. I refer to and repeat paragraphs 19 – 42 of Mooney.
10 I concluded in Mooney that while I agreed with the findings of Burchell J that case management considerations may be imported into the construction of s 57(2)(a) (i.e. could VCAT hear the action), the case management concerns her Honour noted in Impresa and Uber in 2021 are no longer relevant today.
11 The authorities establish that s 57 is a mandatory provision. If an application is made, the Court has no discretion to not stay the proceeding if the criteria in s 57 are met, namely that the action arises wholly or predominantly from a domestic building dispute, and the Court has not yet heard any oral evidence, and the action could be heard by VCAT under the Subdivision.
The present application
12 As noted above, Brocon concedes that ‘the Contract was subject to various provisions of the Act which may, in many circumstances, establish that VCAT is the primary tribunal to hear and determine such matters.’ However, it distinguishes this proceeding on two grounds:
(a) notwithstanding Mooney, the availability of VCAT to actually hear matters is not practically tenable, following the reasoning of Burchell J in Impresa and Uber; and
(b) although the cause of action is for the balance of money owed under a contract regulated by the Act, it is not a ‘dispute’ within the meaning of the Act.
13 I will discuss each of those submissions in turn.
Could the action be heard by VCAT?
14 Brocon’s submission relies on the evidence of its director Salvatore Broccio[7] demonstrating the alleged ‘financially parlous state’ of Strathmore, highlighting the prejudice of delay.
[7]Affidavit of Salvatore Broccio dated 6 June 2025.
15 Brocon also relies on the evidence of its solicitor, Colman Francis Moloney[8], that he looked at the VCAT website which states it takes an average of 52 weeks from initiation to a hearing.
[8]Affidavit of Colman Francis Moloney dated 4 June 2025.
16 Brocon wishes to take advantage of the rules and procedures available in this Court, which it says are not available in VCAT.
17 That argument misconceives the operation of s 57. As I pointed out in Mooney, ‘the question is not whether this Court would be able to manage the proceeding “better” than VCAT; it is whether VCAT is capable of hearing it[9].
[9]Mooney (n 5) [51].
18 Brocon’s submission may be relevant to an application under s 77 of the VCAT Act, which involves a ‘comparison of jurisdictions’. On the other hand, s 57 of the DBC Act does not require a comparison of jurisdictions. Instead, s 57 requires the Court to consider only the subject matter of the action, VCAT’s jurisdiction and the stage the proceeding has reached in the Court[10].
[10]Mooney (n 5) [48].
19 Accordingly, whether the rules of this Court and the Civil Procedure Act 2010 (Vic) (the CPA) ‘provide a means to more promptly and expeditiously process commercial disputes than VCAT,’ as Brocon submits, is not a relevant consideration. Similarly, whether a trial date may be set earlier in the Court than in VCAT is not a relevant consideration.
20 I note here that even if those matters were relevant, I do not accept them. No trial date has yet been allocated in this proceeding. If it were to be listed today, the first available date will be at least 11 months away. That is not earlier than VCAT has indicated on its website, nor is it quicker than VCAT’s Building and Property List’s (BPL) current timeframes, as I noted in Mooney[11].
[11]Mooney (n 5) [51].
21 Further, while this Court has rules of practice and procedure, so does VCAT through the VCAT Act, the Victorian Civil and Administrative Tribunal Rules1998 (Vic), the Victorian Civil and Administrative Tribunal Rules2018 (Vic) (the VCAT Rules) and its Practice Notes. Those rules are well defined and have been judicially interpreted for more than 25 years. Interlocutory processes in VCAT’s BPL are case managed with the same rigour as they are in the Building Cases List in this Court. While the CPA does not apply in VCAT, ss 80, 97 and 98 of the VCAT Act may be used to similar effect. The option for a summary judgment application is available (ss 75, 76, 78 VCAT Act). There is much jurisprudence, including from the Court of Appeal, on the application of those sections. The main advantage this Court has over VCAT is the possibility to enter judgment in default of appearance or defence. Given the response from Strathmore in this matter, such a default is unlikely to occur.
22 I also note that in light of Strathmore’s foreshadowed defence, Brocon may wish to amend its claim to seek relief under s 13(3)(b) of the Act. It is surprising that Brocon would oppose this stay application if it will seek relief which may require VCAT to make the determination.
Does the action arise wholly or predominantly from a domestic building dispute?
23 Brocon submits that although the cause of action is for the balance of money owed under a contract regulated by the Act, it is not a ‘dispute’ within the meaning of the Act. As best I understand this submission, it is that a simple claim for monies owed is not a ‘domestic building dispute’. Brocon seems to contend that to fall within that definition, the dispute must involve ‘building related matters’ such as ‘the nature of the work undertaken, the quality of the work undertaken, the completion of the work required under the contract and the materials used on the contract.’
24 Brocon submits that a specialised tribunal, such as VCAT, with ‘experience in building related matters, where expertise in building issues is particularly relevant to the determination’ is the appropriate jurisdiction to determine ‘building related matters’. However, in the present case, where the defendant simply has not paid the plaintiff, this Court has jurisdiction.
25 I do not accept these submissions for the following reasons.
26 First, the definition of ‘domestic building dispute’ in s 54 of the Act does not exclude simple claims for monies owed. The relevant definition is ‘a dispute or claim arising between a building owner and a builder in relation to a domestic building contract or the carrying out of domestic building work’[12]. The definitions of domestic building contract and domestic building work in ss 3 and 5 of the Act do not exclude a claim for monies owed. Further, that contention is expressly contradicted by s 53, which provides that VCAT may make any order it considers fair to resolve a domestic building dispute, including to ‘order the payment of a sum of money found to be owing by one party to another party’[13].
[12]DBC Act (n 4) s 54(1)(a)(i).
[13]DBC Act (n 4) s 53(2)(b)(i).
27 Second, I do not accept that the present dispute is simply a claim for unpaid monies. The nature of the defence foreshadowed in the affidavit of Warren Alfred Thompson cannot be clearer that the dispute concerns the interpretation of a domestic building contract and the application of the Act to that contract.[14] Section 13 and similar sections were included in the Act as part of its consumer protection measures. Strathmore seeks to avail itself of those protections. That is exactly the type of dispute that VCAT (and its predecessors) was established to resolve[15].
[14]Affidavit of Warren Alfred Thompson dated 16 April 2025, 3 [15-18].
[15]Mooney (n 5) [11]-[18].
Conclusion and Orders
28 As I have determined that the prerequisites to s 57(2) have been met, namely:
(a) the action arises wholly or predominantly from a domestic building dispute;
(b) the Court has not yet heard any oral evidence; and
(c) I am satisfied that VCAT can hear this action,
I am obliged to stay the proceeding. The word ‘must’ in s 57(2) is an imperative term.
29 I will order the proceeding is stayed under s 57(2) of the Act.
30 It is not necessary to consider Strathmore’s alternative application that the proceeding be dismissed or stayed under s 57A of the Act.
Costs
31 My preliminary view is that Brocon should pay the costs of and incidental to this application on an indemnity basis. Brocon should always have been aware of ss 57 and 57A of the Act and Mooney. Strathmore has provided evidence on affidavit that it made an open offer to Brocon on 17 March 2025 to discontinue the proceedings, to which it would agree with no order as to costs. The offer was rejected.
32 I note that Brocon has made no submissions on the costs of this application. I will give Brocon 7 days to do so (by filing a written submission limited to 2 A4 pages and any affidavit in support). If no submission is received, I will make the order foreshadowed above. If a submission is received, Strathmore may file a responsive submission limited to 2 A4 pages and any further affidavit in support 7 days later. I will then determine the costs of and incidental to this application after that date.
33 In respect of the costs of the proceeding, there may or may not be costs thrown away. Presumably, Brocon will commence a proceeding in VCAT. Any such application would cause VCAT to notify this Court, which will then dismiss this proceeding[16]. If the parties cannot agree at the conclusion of the VCAT proceeding as to the costs of this proceeding, and/or if VCAT is unable or unwilling to determine the costs of this proceeding, the parties will have liberty to make a further application in this Court.
[16]DBC Act (n 4) s 57(5).
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Certificate
I certify that these 9 pages are a true copy of the ruling of her Honour Judge Kirton delivered on 13 August 2025.
Dated: 13 August 2025
Mahi Joshi
Associate to Her Honour Judge Kirton
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