JUDGES	BONGIORNO, TATE and OSBORN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	27 June 2012
DATE OF JUDGMENT	13 August 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 174 1^st Revision, 15 August 2012, [30]
JUDGMENT APPEALED FROM	Cardona v Brown [2010] VSC 368 (Pagone J)

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CONTRACT – Claim for progress payment – Whether claim for completion of lock-up stage depends upon builder having first completed frame stage – Whether open for trial judge to find that lock-up stage had been completed – Whether ‘home’ included garage – Which party repudiated contract – Whether builders’ demand for progress payment for lock-up stage was premature – Whether builders’ notice for suspension of works was premature – Domestic Building Contracts Act 1995 (Vic) ss 3, 5, 40 – Appeal allowed.

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Appearances:	Counsel	Solicitors
For the Appellants	Mr J Digby QC with Mr B F H Miller	Simon Parsons & Co
For the Respondents	Mr R A Edmunds	Littleton Hackford & D’Alessandro

BONGIORNO JA

I have had the advantage of reading in draft the reasons for judgment of Tate JA. I agree with her Honour that the appeal should be allowed for the reasons she gives.

TATE JA:

Introduction

Paul Cardona and Lauren Brownscombe (‘the owners’) entered into a building contract (‘the contract’) with Rod and Wendy Brown (‘the builders’) for the construction of their new home on land they owned. The contract was in the form of a standard ‘Plain English’ contract for domestic new homes, the Victorian ‘New Homes Contract’.[1] It was for the construction of ‘the Building Works’ comprising a brick veneer dwelling to be built in accordance with the specifications and plans (‘the plans’) prepared by building consultants.[2] The plans indicated that the dwelling included a master suite, a study, lounge, a family and meals area, two additional bedrooms, a verandah for outdoor living, a garage at the right hand side of the house and a covered area at the left hand side. The house and the garage were to be covered by the one roof. The contract price (including the garage) was $245,245.00.
[1]Issued by the Housing Industry Association Limited.
[2]Particulars of Contract.

The owners and the builders agreed that the method of payment they would use was a series of progress payments in accordance with five separate stages: these being the base stage; frame stage; lock-up stage; fixing stage; and completion. These stages reflected those defined under the Domestic Building Contracts Act 1995 (Vic) (‘the Act’).

The builders made a claim for payment for the frame stage. The claim was

paid but later disputed. The builders made a later claim for payment for the lock-up stage. The owners refused to pay on two grounds: (1) the builders were not entitled to a payment for the lock-up stage when the frame stage had not been completed; and (2) in any event, the…

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 Cardona v Brown

Details

AGLC: Cardona v Brown [2012] VSCA 174
Case: [2012] VSCA 174
Decision Date: 13 August 2012

CaseChat Overview and Summary

Cardona was the owner of a block of land in Melbourne, on which a two-storey house was to be built. Brown, a builder, was contracted to construct the house. Cardona and Brown disputed whether the lock-up stage of the house was completed, and thus whether Cardona was obliged to pay Brown for that stage. The case came before the Court of Appeal of the Supreme Court of Victoria. Cardona argued that the lock-up stage was not completed, and that Brown had repudiated the contract. Brown argued that Cardona had repudiated the contract and that Brown was entitled to payment for the lock-up stage. The appeal was brought on questions of law certified by the trial judge.

The court found that the trial judge was open to finding that the lock-up stage was completed, and that the ‘home’ included the garage. The court also found that Cardona had not repudiated the contract. The court found that Brown’s demand for progress payment was premature, as the lock-up stage had not yet been completed. The court found that Brown’s notice for suspension of works was also premature, as Brown had not yet completed the lock-up stage. The appeal was allowed, and the matter was remitted to the trial judge.

The final orders of the court were that Cardona’s appeal be allowed, and the matter be remitted to the trial judge. The court found that Brown’s demand for progress payment and notice for suspension of works were premature, and that Cardona was not obliged to pay Brown for the lock-up stage. The court also found that the ‘home’ included the garage, and that the lock-up stage was completed. The matter was remitted to the trial judge for further consideration.

Orders