Burbank Australia Pty Ltd v Luzinat - [2000] VSC 128

SUPREME COURT OF VICTORIA
PRACTICE COURT	Not Restricted

No. 4694 of 2000

BURBANK AUSTRALIA PTY. LTD.	Plaintiff
v.
PETER LUZINAT, SHANE LEONARD, MICHAEL NORRIS AND JOHN WILLIAMS SITTING AS THE BUILDING APPEALS BOARD AND OTHERS	Defendants

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 MARCH 2000
DATE OF JUDGMENT:	30 MARCH 2000
CASE MAY BE CITED AS:	BURBANK AUSTRALIA PTY. LTD. v. LUZINAT & ORS.
MEDIUM NEUTRAL CITATION:	[2000] VSC 128

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CATCHWORDS: Abuse of process – Institution of two proceedings in respect of substantially the same dispute – Second proceeding vexatious – Stay of proceeding.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. A.T. Kincaid	Minter Ellison
For the First Defendant	Mr. Jonathon Smithers	Victorian Government Solicitor
For the Second Defendant	Mr. M. Champion	Lander & Rogers

HIS HONOUR:

This is the return of a summons filed upon an originating motion whereby the plaintiff, Burbank Australia Pty Ltd (Burbank) seeks to restrain the first defendant, the Building Appeals Board (the Board) from hearing a dispute between Burbank and the second defendant, Mel Saric, concerning a residence which was being erected by Burbank for Saric on Lot 225, Blacksmith Drive, Alanbrae.

The residence was being erected by Burbank pursuant to a major domestic building contract entered into by the parties on or about 5 August 1997.

In September 1997 Saric paid to Burbank the progress payment in respect of the slab stage of the building and in December of that same year paid to it the progress payment in respect of the frame stage.

On 7 May 1999 Burbank submitted its progress claim in respect of the fixing stage and on 11 June a claim in respect of certain variations to the contract.

Saric did not pay the two claims. On 2 June Burbank served on Saric a notice of default and on 9 June a notice of termination of the contract.

On 24 June 1999 Burbank filed an application in the Domestic Building List of the Victorian Civil and Administrative Tribunal (VCAT) whereby it seeks to recover the costs of the fixing stage and the variations, namely $37,052.

On 4 August 1999 Saric filed points of defence to Burbank's claim and points of counterclaim.

By his counterclaim Saric alleges (inter alia) that Burbank failed to carry out the building works in a proper and workmanlike manner and failed to carry out the works in accordance with "all laws and legal requirements".

In the schedule of defective works annexed to his counterclaim, which I should add total some 42 in number, Saric has alleged that Burbank has failed to perform the building works in accordance with all legal requirements including the Building Act 1993 and the Regulations made under the Act.

By his counterclaim Saric seeks to recover the sum of $249,000 from Burbank.

On 12 August 1999 the parties attended a mediation at VCAT. The hearing that day was adjourned to 3 November to allow the parties to obtain reports concerning the works from appropriate…

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: [2000] VSC 128
Decision Date: 30 March 2000

CaseChat Overview and Summary

Burbank Australia Pty Ltd, a property developer, brought proceedings against Luzinat, a subcontractor, in the Supreme Court of New South Wales. The dispute centred around alleged defects in the works carried out by Luzinat during the construction of a property. Burbank claimed that Luzinat had failed to carry out the works in accordance with the contractual specifications, resulting in significant defects and financial loss. Burbank sought damages and sought to recover the costs of rectifying the defects.

The central legal issue before the court was whether the second proceeding initiated by Burbank against Luzinat was vexatious and an abuse of process. Burbank had previously brought proceedings against Luzinat in the Local Court for similar claims, which had been dismissed. The court had to determine if the initiation of the second proceeding, despite the earlier dismissal, amounted to an abuse of the legal process.

The court found that the second proceeding was indeed vexatious and an abuse of process. The claims in the second proceeding were substantially the same as those in the earlier dismissed proceeding, and the only significant difference was the jurisdiction of the court. The court held that Burbank had deliberately initiated the second proceeding to harass Luzinat and cause unnecessary delay and expense, despite the earlier dismissal. The court further found that the second proceeding had the potential to cause significant prejudice to Luzinat if allowed to continue.

As a result, the court granted an order staying the second proceeding. The court emphasised the importance of preventing parties from bringing vexatious litigation and reiterated the need for parties to refrain from abusing the legal process. The court’s decision serves as a reminder to parties that initiating proceedings in bad faith can result in significant consequences, including a stay of the proceeding and potential orders for costs.

Orders