Dona Homes (Vic) Pty Ltd v Stevens - [2005] VSC 499

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7739 of 2004

DONA HOMES (VIC) PTY LTD (ACN 005 350 578)	Appellant
v
JAMES STEVENS	Respondent

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JUDGE:	HABERSBERGER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 JANUARY 2005
DATE OF JUDGMENT:	21 DECEMBER 2005
CASE MAY BE CITED AS:	DONA HOMES (VIC) PTY LTD v STEVENS
MEDIUM NEUTRAL CITATION:	[2005] VSC 499

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Administrative Law – Appeal from a decision in an application in the Domestic Building List of the Victorian Civil and Administrative Tribunal – Decision based on new claims by proprietor and expert evidence in relation to the proprietor's claims, notice of which had not been given to the builder before the hearing – Denial of procedural fairness.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr S.C. Smith	Kennedy Guy
For the Respondent	Mr G.F. Hellyer	Nevin Lenne Gross

HIS HONOUR:

By a building agreement dated 30 September 2001, the appellant, Dona Homes (Vic) Pty Ltd ("the builder") agreed with the respondent, James Stevens, and his wife, Joanne Stevens, ("the proprietors") to construct a house and associated works on their land situated at 2 (formerly Lot 37) Chiswick Court, Tarneit. The contract price was $167,270. On 30 August 2002, the house was handed over to the proprietors. Over the following year or so the parties fell into dispute as to a number of items of alleged defective work and, on 23 October 2003, the proprietors lodged an application with the Domestic Building List of the Victorian Civil and Administrative Tribunal ("VCAT"). It appears that, for some unknown reason, the Tribunal later treated the application as one made by Mr Stevens alone.

The application came on for hearing before the Tribunal on 8 and 9 July 2004 when its decision was reserved. On 29 July 2004 the Tribunal published its reasons for its decision and ordered the builder to pay to Mr Stevens the sum of $31,690.40. This is an appeal against that order brought by leave granted by a Master on 20 October 2004 in a proceeding commenced by originating motion by the builder on 25 August 2004.

The questions of law raised in the notice of appeal essentially concern procedural aspects of the conduct of the hearing before the Tribunal, rather than any error of law in the reasoning of the Tribunal. They can be summarised as follows:

(a)The proprietors were permitted to assert new claims and to rely on evidence, notice of which had not been given to the builder.
(b)The Tribunal did not provide an equal opportunity to the builder to present its case.

There was no issue before me that, notwithstanding the statutory requirement to conduct its proceedings in an informal manner, the Tribunal is under a legal obligation to act fairly, to comply with the rules of natural justice and to give each party a reasonable opportunity to call evidence relevant to the issues before it and to examine, cross-examine or re-examine witnesses and to make submissions.[1]…

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: [2005] VSC 499
Decision Date: 21 December 2005

CaseChat Overview and Summary

Dona Homes (Vic) Pty Ltd sought to appeal a decision of the Victorian Civil and Administrative Tribunal which found against the builder in an action brought by the proprietor, Mr Stevens. The dispute arose out of the construction of a home by the builder for the proprietor under a contract. The proprietor alleged that the builder had failed to comply with various obligations under the Home Building Act 1989 (Vic). The builder denied liability and the matter was referred to the tribunal for determination. The tribunal found in favour of the proprietor and ordered the builder to pay damages. The builder appealed to the Supreme Court on the basis that the tribunal had denied it procedural fairness by allowing new claims and expert evidence to be presented by the proprietor at the hearing, without notice to the builder.

The central legal issue was whether the tribunal's decision was tainted by procedural unfairness. The builder argued that it was denied a procedurally fair hearing because the proprietor presented new claims and expert evidence at the hearing, without having provided prior notice to the builder. The builder submitted that this was a breach of natural justice and procedural fairness, as it did not have an opportunity to respond to the new claims and evidence. The builder submitted that the tribunal should not have allowed these to be presented at the hearing. The proprietor argued that the new claims and evidence were merely an elaboration of the original claims, and did not constitute new claims. The proprietor submitted that the builder had been given adequate notice of the general nature of the claims, and that it was not required to give specific details of the new claims and evidence before the hearing.

The court found in favour of the builder and held that the tribunal had indeed denied the builder procedural fairness. The court held that the proprietor had presented new claims and expert evidence at the hearing, without having given notice to the builder beforehand. The court found that these new claims and evidence went beyond what was initially disclosed, and constituted new claims. The court held that the builder was entitled to be given notice of any new claims and evidence before the hearing, so that it could prepare its response. The court found that the builder had not been given such notice, and that this was a breach of procedural fairness. The court held that the tribunal's decision was therefore invalid, and quashed the decision.

The court ordered that the matter be remitted to the tribunal for rehearing, with directions that the proprietor must give the builder notice of any new claims and expert evidence before the hearing. The court held that the builder was entitled to a fair hearing, and that this included being given notice of any new claims and evidence before the hearing. The court held that the tribunal had failed to ensure that the builder had a fair hearing, and that this was a breach of procedural fairness. The court held that the decision of the tribunal was therefore quashed, and that the matter must be reheard before the tribunal, with the appropriate directions given.

Orders