JUDGE:	Harris J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 April 2024
DATE OF JUDGMENT:	24 May 2024
CASE MAY BE CITED AS:	Concrete Construction Systems Pty Ltd v Inglese
MEDIUM NEUTRAL CITATION:	[2024] VSC 266

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ADMINISTRATIVE LAW – Application for leave to appeal from Victorian Civil and Administrative Tribunal – Meaning of ‘proceeding’ in s 78 of the Victorian Civil and Administrative Tribunal Act 1998 – Meaning of ‘determine the proceeding in favour of’ in s 78(2)(b)(i) of the Victorian Civil and Administrative Tribunal Act 1998 – Application for extension of time – Inadequate explanation for delay – Prejudice to respondents – Low prospect of success of appeal – Inappropriate to grant declaratory relief sought – Brandwill Holdings Pty Ltd v Jonson & Ors [2014] VSC 356 – Victorian Civil and Administrative Tribunal Act 1998, ss 78, 119, 120, 148.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Gurr SC with Mr N Andreou	Robert James Lawyers
For the Respondents	Mr B Reid	Lovegrove & Cotton

TABLE OF CONTENTS

The orders the subject of the application for leave to appeal................................................... 1

Procedural background to the s 78 Order and the s 120 Order................................................. 3

Concrete Construction’s notice of appeal...................................................................................... 8

Application for an extension of time to appeal.......................................................................... 10

The statutory provisions and authority relevant to an application for an extension of time for leave to appeal.............................................................................................................................. 10
The parties’ submissions on the application for an extension of time to appeal the s 78 Order.............................................................................................................................................. 11
Consideration – the delay was significant, and the explanation was inadequate............. 17
Prejudice to the Ingleses from the late application................................................................ 23
Impact on Concrete Construction if no extension is granted............................................... 24
Extension of time – merit of proposed appeal........................................................................ 25

The proposed appeal of the s 78 Order........................................................................................ 26

The construction of s 78.............................................................................................................. 28
Authority on the power in s 78(2)(b).............................................................................. 31
What is a ‘proceeding’ under that section?.................................................................... 33
What does it mean to ‘determine the proceeding in favour of’ an applicant........... 35
Conclusion as to the scope of s 78(2)(b)(i)...................................................................... 39

The effect of the s 78 Order made by the Tribunal................................................................. 40
Conclusion – the effect of the s 78 Order................................................................................. 48

The proposed appeal against the s 120 Order............................................................................. 48

Whether declaratory relief of the nature sought in the application is appropriate............ 50

Orders declaring the meaning of Tribunal Orders................................................................ 50
Alternative more appropriate mechanisms for clarifying the meaning of an order......... 51

Conclusion......................................................................................................................................... 53

HER HONOUR:

Mr and Mrs Inglese, the respondents, owned land in Ringwood, Victoria on which they decided to have residential units constructed. In April 2015, they entered into a domestic building contract, as developers, with the applicant building company, Concrete Construction Systems Pty Ltd, for 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 Concrete Construction Systems Pty Ltd v Inglese

Details

AGLC: Concrete Construction Systems Pty Ltd v Inglese [2024] VSC 266
Case: [2024] VSC 266
Decision Date: 24 May 2024

CaseChat Overview and Summary

In the case of Concrete Construction Systems Pty Ltd v Inglese, the applicant, a company involved in a dispute with an individual, sought leave to appeal a decision made by the Victorian Civil and Administrative Tribunal (VCAT). The nature of the dispute involved the interpretation of certain sections of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), specifically sections 78, 119, 120, and 148. The applicant argued that VCAT had incorrectly interpreted the terms "proceeding" and "determine the proceeding in favour of" in section 78(2)(b)(i) of the Act. Furthermore, the applicant sought an extension of time to appeal the decision and requested declaratory relief.

The legal issues before the court were whether VCAT's interpretation of the relevant sections was correct, whether the applicant had provided an adequate explanation for the delay in lodging the appeal, and whether the applicant's delay would prejudice the respondents. The court also considered the likelihood of success of the appeal and whether it was appropriate to grant the declaratory relief sought by the applicant. The court examined relevant case law, including Brandwill Holdings Pty Ltd v Jonson & Ors [2014] VSC 356, to assist in its determination.

The court found that VCAT's interpretation of the relevant sections of the Act was correct and that the applicant's explanation for the delay in lodging the appeal was inadequate. The court held that the applicant's delay would prejudice the respondents, and there was a low prospect of success of the appeal. The court also found that it was not appropriate to grant the declaratory relief sought by the applicant. Consequently, the court dismissed the application for leave to appeal and the application for an extension of time to appeal. No further orders were made by the court.

Orders