Carlos Constructions Pty Ltd v Housing Guarantee Fund Ltd - [2002] VSC 444

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 6133 of 2002

CARLOS CONSTRUCTIONS PTY LTD	Applicant
v
HOUSING GUARANTEE FUND LTD & ANOR	Respondents

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JUDGE:	BONGIORNO J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 October 2002
DATE OF JUDGMENT:	9 October 2002
CASE MAY BE CITED AS:	Carlos Constructions Pty Ltd v Housing Guarantee Fund Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2002] VSC 444

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J. Nixon	De Marco & Co.
For the First Respondent	Ms S.A. Kirton	Minter Ellison
For the Second Respondent	Ms A. Duggan	McCracken & McCracken

HIS HONOUR:

This is an application for relief from non-compliance with s.148 of the Victorian Civil & Administrative Tribunal Act 1998 in respect of a proposed appeal from VCAT to this Court.

Section 148 imposes a time limit of 28 days after the order of the Tribunal as being the period during which an application for leave to appeal a decision of the Tribunal on a question of law must be made. In this instance the plaintiff issued an originating motion on 25 June 2002 seeking leave to appeal in respect of a decision given on 28 May 2002. The Act, specifically s.148(2)(b), requires that an application for leave to appeal must be made in accordance with the Rules of the Supreme Court.

Chapter 2 Order 4 of the Rules of the Supreme Court contains the procedure for making application for leave to appeal from a tribunal, including VCAT. Rule 4.08(1) requires an applicant to file a summons within seven days seeking the relief sought in the originating motion, that is to say, leave to appeal. Sub-rule 2 says: "The application is taken to be made when the summons is filed."

The combination of s.148(2)(b) and those Rules would seem to lead to the conclusion that, although contained in the Rules, the requirement that the application be taken to be made when the summons is filed is probably statutory.

However, notwithstanding all of that, s.148(5) permits this Court to extend or abridge any time limit fixed by or under this section. It does so without reference to criteria, but it would be assumed that it implies that such an extension or abridgment would be granted when it is in accordance with the justice of the case to do so.

This case involves a claim by a builder against the Housing Guarantee Fund Ltd in respect of a decision that that Fund made to indemnify the builder in respect of work which was required to be done on a property upon which the builder had originally worked. Payment by the Fund gives the Fund total recourse to the builder for the amount paid. The argument centres around whether the owner of the building, the second respondent to this application, in fact notified the Fund within time or not. The builder complains that she did not. The Fund decided that she had. Of particular significance is the fact that…

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: [2002] VSC 444
Decision Date: 9 October 2002

CaseChat Overview and Summary

The case of Carlos Constructions Pty Ltd v Housing Guarantee Fund Ltd & Anor involves the applicant, Carlos Constructions Pty Ltd, seeking relief from non-compliance with section 148 of the Victorian Civil and Administrative Tribunal Act 1998. The applicant sought leave to appeal a decision of the Victorian Civil and Administrative Tribunal (VCAT) to the Supreme Court of Victoria. The primary dispute revolves around whether the Housing Guarantee Fund Ltd correctly indemnified the applicant for work done on a property and whether the applicant's claim for relief from non-compliance under section 148(5) should be granted.

The legal issues in this case centered on the interpretation of section 148 of the VCAT Act, specifically the 28-day time limit for applying for leave to appeal a decision of VCAT on a question of law. Additionally, the court had to consider whether the statutory payment made by the Housing Guarantee Fund Ltd to the second respondent, Prudence Ellen Wales, was justified and whether the Tribunal's decision in not extending the time limit was correct. Furthermore, the court needed to assess whether the proposed appeal raised a question of law or if it was merely a disagreement with factual findings.

The court's reasoning focused on the statutory framework provided by section 148(5) of the VCAT Act, which allows the Supreme Court to extend or abridge the time limit for appealing a VCAT decision. The applicant argued that the Tribunal failed to exercise its discretion properly, but the court found that the proposed appeal seemed to be centered around factual disputes rather than a clear question of law. The court concluded that the Tribunal's decision not to extend the time limit was not attended by sufficient doubt to warrant a review. Moreover, the court found that the applicant's proposed appeal did not clearly raise a question of law, but rather appeared to be a challenge to factual findings. Therefore, the application for relief from non-compliance was refused.

In summary, the Supreme Court of Victoria dismissed the applicant's application for relief from non-compliance with section 148 of the VCAT Act, and the court ordered that the applicant pay the costs of the Housing Guarantee Fund Ltd and Prudence Ellen Wales. The court found that the Tribunal's decision was correct and that the proposed appeal did not raise a question of law, but rather involved disagreements with factual findings.

Orders