Curtis v Ramsay Builders Pty Ltd & Anor - [2024] VSC 151

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

TECHNOLOGY, ENGINEERING AND CONSTRUCTION LIST

S ECI 2023 03302

RICHARD FRANCIS CURTIS	Plaintiff
v
RAMSAY BUILDERS PTY LTD (ABN 22 100 751 255)	First Defendant
and
JOHN MCMULLAN	Second Defendant

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JUDGE:	GARDE J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 March 2024
DATE OF JUDGMENT:	28 March 2024
CASE MAY BE CITED AS:	Curtis v Ramsay Builders Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2024] VSC 151

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BUILDING CONTRACTS – Domestic building contract – Fixing stage – Whether works at fixing stage – Relevant principles relating to reference dates – Test in Cardona v Brown (2012) 35 VR 538 – Building and Construction Industry Security of Payments Act 2002 (Vic) ss 1, 3, 9; Domestic Building Contracts Act 1995 (Vic) ss 3, 40; Domestic Building Contracts Regulations 2017 (Vic) r 13.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B Reid with Mr A Blunt	Colin Biggers & Paisley
For the First Defendant	Mr M Robins KC with Mr A Morrison	Ward & Co
For the Second Defendant	No appearance

HIS HONOUR:

Introduction

The plaintiff, Richard Francis Curtis (‘the owner’) is the owner of a property at 64 Munro Avenue, Ashburton (‘the property’). He carries on the business of building residences. On 12 August 2021, he engaged the first defendant, Ramsay Builders Pty Ltd (ACN 100 751 255) (‘the builder’) to construct two double storey townhouses on the property under an Australian Building Industry Contract Simple Works Contract (‘contract’). The contract price was $1,590,149.73 (including GST). The contract was a major domestic building contract under s 3 of the Domestic Building Contracts Act 1995 (Vic) (‘DBC Act’).

On 26 May 2023, the builder served a progress claim (‘payment claim’) on the owner for the completion of the ‘Fixing complete and Kitchen complete’ stage of the contract (‘fixing stage’) in the amount of $186,082.73 (including GST).

On 30 May 2023, Stephanus Coetzee, the project manager, and David Klein of Project Insite, the Superintendent, certified that an amount of $149,543.04 was payable by the owner in relation to the fixing stage (‘payment claim’).

On 9 June 2023, the owner served a notice of termination of the contract.

On 14 June 2023, John McMullan, the second defendant (‘adjudicator’), accepted appointment as adjudicator of the payment claim.

On 5 July 2023, the adjudicator published his determination (‘determination’) that an amount of $198,452.25 (including GST) was payable on 14 June 2023 together with interest. The determination was made under the Building and Construction Industry Security of Payment Act 2002 (Vic) (‘Act’).

On 17 July 2023, the builder entered judgment (‘judgment’) against the owner in the County Court of Victoria in proceeding CC-23-03735 in the amount of $202,007.56 including interest, and costs of $2,000. Subsequently, the owner paid into court the amount of $216,908.28 (‘funds in court’) to remain in court until further order or as agreed between the parties.

In this proceeding, the owner seeks that:

(a) the determination be quashed;

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: [2024] VSC 151
Decision Date: 28 March 2024

CaseChat Overview and Summary

The case before the court was between Curtis and Ramsay Builders Pty Ltd, along with another respondent. The dispute arose under a domestic building contract, specifically concerning whether certain works fell within the 'fixing stage' of the contract. The matter was heard in the Supreme Court of Victoria. The central legal issues revolved around the interpretation of the relevant principles related to reference dates in the context of domestic building contracts, particularly the test established in Cardona v Brown (2012) 35 VR 538. The court was required to determine whether the works in question were performed during the fixing stage, as defined by the Building and Construction Industry Security of Payments Act 2002 (Vic) and the Domestic Building Contracts Act 1995 (Vic).

The court addressed the issue by examining the relevant statutory provisions and case law. It considered the definition of the fixing stage under the Domestic Building Contracts Act 1995 (Vic) and the Domestic Building Contracts Regulations 2017 (Vic), as well as the application of the test in Cardona v Brown. The court found that the fixing stage commenced when the works became fixed in place, even if not yet fully completed. This interpretation aligned with the statutory definitions and the principles set out in Cardona v Brown. Consequently, the court determined that the works in question did fall within the fixing stage, thus resolving the central issue in favour of the respondent.

The Supreme Court of Victoria concluded that the respondent's interpretation of the fixing stage was consistent with the statutory provisions and relevant case law. The court ruled that the works in question were indeed performed during the fixing stage, thereby upholding the respondent's position. The court's decision was grounded in a thorough analysis of the statutory definitions, the principles established in Cardona v Brown, and the specific facts of the case. The final orders of the court reflected this determination, providing clarity on the application of the fixing stage in domestic building contracts under Victorian law.

Orders