Cardona v Brown - [2010] VSC 368

IN THE SUPREME COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

No. 8722 of 2009

PAUL CARDONA and LAUREN BROWNSCOMBE	Appellants
v
ROD BROWN and WENDY BROWN	Respondents

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JUDGE:	Pagone J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 August 2010
DATE OF JUDGMENT:	23 August 2010
CASE MAY BE CITED AS:	Cardona & Anor v Brown & Anor
MEDIUM NEUTRAL CITATION:	[2010] VSC 368

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JUDICIAL REVIEW - Decision of VCAT – Building Contract – Domestic Building Contracts Act 1995 (Vic) – Entitlement to claim for construction stages dependent on separate definitions – Proper construction of “lock up stage” – Repudiation and suspension of contract.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr J Digby QC and Mr B Miller	Simon Parsons & Co Lawyers
For the Respondents	Mr R Edmunds	Littleton Hackford & D’Alessandro Solicitors

HIS HONOUR:

The plaintiffs (“the owners”) seek to set aside orders made by VCAT in favour of the defendants (“the builders”). On 7 August 2009 VCAT, constituted by Deputy President Macnamara, ordered that the owners pay the builders $125,431.17 together with costs.

The dispute between the parties arises from the performance of a building contract between them for the builders to construct a brick veneer dwelling on the owners’ land for the sum of $245,245.00. A building permit was issued by a private building surveyor, Mr Roger Kidd, and the builders commenced the works around 22 September 2006. The strip footings were poured, stumps were installed, base brick work was completed and the base stage progress payments were paid on 16 November 2006. On 4 December 2006 the builders requested payment of the frame stage progress payment pursuant to the contract. That claim of $36,786.75 was paid and, at around this time, the owners appeared to be happy with the work which had been completed although disagreement has since arisen about whether the frame stage progress payment claim could have been made. At some point there arose a significant dispute between the parties about the roof trusses which formed part of the work during the frame stage. That dispute was the trigger of subsequent disagreement between the owners and the builders but the state of the trusses is not directly relevant to the issues which I must decide which, rather, depend upon whether there was an error of law in the VCAT decision to enliven the Court’s jurisdiction under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).

On 14 February 2007 the owners received a progress claim for the lock-up stage payment of $85,835.75 which they refused to pay. On 6 March 2007 the builders suspended works in reliance upon clause 35 of the contract and the non payment of the lock-up stage progress payment. On 26 April 2007 the owners’ solicitors informed the solicitors for the builders that the claim for the lock-up stage payment could not have been made and, amongst other things, required the builders to return to the site to…

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 [2010] VSC 368
Case: [2010] VSC 368
Decision Date: 23 August 2010

CaseChat Overview and Summary

The case of Cardona v Brown involved a dispute between the appellant, Cardona, and the respondent, Brown, concerning the enforcement of a building contract. The dispute was heard in the Supreme Court of Victoria, which was asked to review a decision made by the Victorian Civil and Administrative Tribunal (VCAT). The primary issue was the interpretation of specific terms within the Domestic Building Contracts Act 1995 (Vic), particularly regarding the definition of the "lock up stage" and the entitlement to claim for construction stages that depended on these definitions. Additionally, the court examined whether the contract was properly repudiated and suspended.

The court was required to determine the proper interpretation of the "lock up stage" as defined by the Act, and how this definition impacted the appellant's entitlement to claim for construction stages. The court also had to consider whether the respondent's actions constituted a repudiation of the contract and whether the appellant's suspension of work was justified. These issues were critical in resolving the dispute over the enforcement of the building contract and the respective rights and obligations of the parties.

The court found that the definition of the "lock up stage" as per the Act did not align with the common understanding of the term. It held that the respondent's actions did not amount to a repudiation of the contract, and the appellant's suspension of work was not justified. The court concluded that the respondent was entitled to continue with the construction works as per the contract terms. The appeal was dismissed, and the decision of VCAT was upheld.

The final orders of the court were that the appeal was dismissed, and the decision of VCAT was confirmed. The respondent was entitled to proceed with the construction works, and the appellant's claims for additional costs related to the construction stages were not upheld.

Orders