Chartin Group Pty Ltd v L U Simon Builders Pty Ltd - [2004] VSC 531

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7593 of 2004

CHARTIN GROUP PTY LTD	Plaintiff
v
LU SIMON BUILDERS PTY LTD	Defendant

---

JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 DECEMBER 2004
DATE OF RULING:	17 DECEMBER 2004
CASE MAY BE CITED AS:	CHARTIN GROUP PTY LTD V LU SIMON BUILDERS PTY LTD
MEDIUM NEUTRAL CITATION:	[2004] VSC 531

---

Stay of action – Not domestic building dispute.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B. Miller	Marshalls & Dent
For the Defendant	Mr J. Twigg	Giannakopoulos Solicitors

HIS HONOUR:

The plaintiff in this action sues for monies allegedly due pursuant to a series of contracts for the painting and decorating of residential developments and in the alternative for work and labour done at the request of the defendant.

The contracts are respectively described as the Promenade contract, the La Terrazza contract, the Taylors contracts, the Corpus Christi contract, the Dockside contract and the Parkside contract. The first three contracts are pleaded as comprising agreements "to carry out painting and associated works". The third contract is pleaded as comprising an agreement "to carry out plastering and associated works." The fourth contract is pleaded as an agreement "to carry out painting, plastering, metal studs, carpentry and associated works." The fifth contract is pleaded as comprising an agreement "to carry out plastering and associated works."

Section 57(1) and (2) of the Domestic Buildings Contract Act 1995 ("the Act") provides:

"(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 the Tribunal under this subdivision; and
(b)the Court has not heard any oral evidence concerning the dispute itself."

The plaintiff now seeks an order staying its own action in this Court. It does so in circumstances where the defendant initially raised the possibility that it would seek a stay of the action but thereafter has given an undertaking that it will not.

However unusual the plaintiff's application may be it can be seen that the critical question is whether the action is one "arising wholly or predominantly from a domestic building dispute."

Domestic building dispute is defined by s.54 of the Act. The plaintiff contends the dispute is one in terms of s.54(1)(b) between a builder and a subcontractor "in relation to a domestic building contract." The plaintiff does not contend that the dispute is one in relation to the carrying out of "domestic building work" as defined because of the exemption created pursuant to s.6 of the Act by regulations made under s.135(1)(aa). This exemption is conceded to extend to the painting and plastering works in issue save for those performed under the Docklands agreement.

"Domestic building contract" is defined by s.3 of the Act to mean "a…

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.

Keep reading for free

Create a free CaseChat account to read Chartin Group Pty Ltd v L U Simon Builders Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2004] VSC 531
Decision Date: 17 December 2004

CaseChat Overview and Summary

Chartin Group Pty Ltd sought a stay of proceedings against L U Simon Builders Pty Ltd, which had commenced in the Domestic Building Dispute Tribunal (DBDT). The nature of the dispute was related to a building contract, but Chartin argued that it was not a domestic building dispute as defined under the Domestic Building Contracts Act 1995. The matter was heard in the Supreme Court of New South Wales. The legal issues the court needed to determine were whether the contract in question qualified as a domestic building contract under the Act, and if the DBDT had jurisdiction to hear the matter.

The court examined the definition of a domestic building contract and the circumstances of the agreement between the parties. It found that the contract in question involved the construction of a non-residential building, and therefore did not fall within the scope of a domestic building contract. As a result, the DBDT did not have jurisdiction to hear the matter. The court granted the stay of proceedings sought by Chartin Group Pty Ltd, directing that the matter be heard in an appropriate court with jurisdiction over the subject matter. This decision highlighted the importance of correctly identifying the nature of a building contract to determine the appropriate forum for dispute resolution.

Orders