ADMINISTRATIVE LAW – Effect of order dismissing proceeding under s 78(2)(b)(i) of the Victorian Civil and Administrative Tribunal Act 1998 – Order sought by respondent/applicant by counterclaim in domestic building dispute – Conduct of applicant disadvantageous and prejudicial to respondent/applicant by counterclaim – Order found to have intended to dismiss both claim and counterclaim in proceeding – Victorian Civil and Administrative Tribunal Act 1998, ss 78(2)(b)(i), 120.
In April 2015, Giuseppe and Gwynneth Inglese (the ‘Ingleses’) entered into a domestic building contract with Concrete Construction Systems Pty Ltd (‘Concrete’), to build 66 residential units on land owned by the Ingleses at 267–280 Maroondah Highway, Ringwood, Victoria. Although the works reached practical completion in October 2016, the parties were in dispute about the performance of the contract. Concrete sought payment for variation works, while the Ingleses claimed the cost of rectifying defects.
On 17 November 2017, Concrete filed a claim against the Ingleses in the Victorian Civil and Administrative Tribunal (‘Tribunal’), seeking payment for variations and other amounts it claimed to be owed under the contract. The Ingleses filed a defence and counterclaim on 30 April 2018, seeking liquidated damages for delays and damages for the cost of rectifying defects. Both the claim and the counterclaim were for about $2,200,000.
On 16 September 2020, the Tribunal…
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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AGLC
Concrete Construction Systems Pty Ltd v Inglese [2025] VSCA 218
Case
[2025] VSCA 218
Decision Date
CaseChat Overview and Summary
The case of Concrete Construction Systems Pty Ltd v Inglese, heard in the Supreme Court of Victoria, concerns a dispute arising from a domestic building contract. The respondent, Inglese, sought an order under section 78(2)(b)(i) of the Victorian Civil and Administrative Tribunal Act 1998, dismissing a claim brought by Concrete Construction Systems Pty Ltd on the grounds that the claim was disadvantageous and prejudicial. Concrete Construction Systems subsequently filed a counterclaim. The primary issue before the court was whether the order dismissing the claim also effectively dismissed the counterclaim and whether the appeal was available from the Tribunal’s reasons.
The court considered the scope of the term 'proceeding' in section 78 of the Act, focusing on the legislative intent to establish the Tribunal as a flexible and efficient forum. It was determined that the Tribunal's intention in dismissing the claim was also to dismiss the counterclaim, given that the order was aimed at addressing the overall disadvantageous conduct by Concrete Construction Systems. The court also examined the relevant case law, including ACN 115 918 959 Pty Ltd v Moulieris, to support its interpretation of the term 'proceeding'. The court concluded that the dismissal of the claim inherently included the dismissal of the counterclaim.
Further, the court addressed the issue of whether an appeal was available from the Tribunal's reasons for the order. It found that there was no evidence of legislative intent to provide for an appeal from the Tribunal's reasons, and thus, no appeal lay from the Tribunal’s reasons. This conclusion was supported by the cases of Marke v Victoria Police, Goodrich v Racing Victoria Racing Appeals and Disciplinary Board, and O’Bryan v Lindholm.