Eiken v Housing Guarantee Fund Ltd - [2001] VSC 23

SUPREME COURT OF VICTORIA AT MELBOURNE
COMMON LAW DIVISION	Not Restricted

No. 6596 of 2000

IDAR PER EIKEN & ROSALIE MAY EIKEN	Appellants
v
HOUSING GUARANTEE FUND LTD and JOHN BECA	Respondents

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JUDGE:	Eames J
WHERE HELD:	Melbourne
DATE OF HEARING:	8, 9 February 2001
DATE OF JUDGMENT:	16 February 2001
CASE MAY BE CITED AS:	Eiken v Housing Guarantee Fund & Beca
MEDIUM NEUTRAL CITATION:	[2001] VSC 23

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Appeal against decision of Master – application for leave to appeal from decision of Victorian Civil and Administrative Tribunal Act, s.148 – whether Tribunal adopted wrong standard of proof, or failed to properly evaluate weight of evidence – adequacy of reasons for decision – whether questions of law or fact were raised by notice of appeal – decision not attended by sufficient doubt to justify leave – whether, in any event, outcome of case would differ if claimed errors of law were corrected on appeal.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr M. Scarfo	Michael Mackinnon
For the First Respondent	Ms K. Pettigrew	Solicitor to Housing Guarantee Fund
For the Second Respondent	Mr G. Lucas	Lander & Rogers

HIS HONOUR:

This is an appeal, referred to me from the Practice Court, against a decision of Master Wheeler given on 6 October 2000 dismissing an application for leave to appeal brought by the appellants with respect to a decision given on 28 July 2000 in the Victorian Civil and Administrative Tribunal (“VCAT”) by a Deputy President (hereinafter referred to as “the Tribunal”) sitting in the Domestic Building List.

The Tribunal dismissed an application brought by the appellants against the first respondent, Housing Guarantee Fund Ltd, for damages pursuant to the House Contracts Guarantee Act 1987 and against the second respondent, John Beca, seeking damages for negligence and/or breach of duty with respect to electrical work performed by the second respondent on premises owned by the appellants.

The proceedings before VCAT arose out of a fire which occurred on 29 March 1997 at the premises of the appellants at 6 Honda Drive, Mill Park. The house was extensively damaged by the fire and the plaintiffs also suffered loss of a significant number of their personal belongings. The appellants had moved into the house in November 1996 after it had been built by builders Z & J Stojanovic. An MMFB fire officer, Mr Cahill, attended the scene some hours after the fire for the purpose of ascertaining the origin and cause of the fire, and he removed a transformer which had been attached to a downlight in the ceiling of the first floor of the property. He concluded that the fire had started in the ceiling of the first floor, adjacent to the location of the transformer and downlight. The fire had been attended by other members of the MMFB, one of whom completed a report known as an AIRS Incident Report, in which it was stated that the fire had started not on the first floor but within the roof…

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: [2001] VSC 23
Decision Date: 16 February 2001

CaseChat Overview and Summary

The case of Eiken v Housing Guarantee Fund Ltd was heard in the Court of Appeal of the Supreme Court of Victoria. The matter arose from an appeal against a decision made by the Master of the Supreme Court, which in turn had followed a decision of the Victorian Civil and Administrative Tribunal. The dispute centred around the adequacy of the Tribunal's reasons for its decision and whether it had adopted the wrong standard of proof, or failed to properly evaluate the weight of the evidence. The applicant, Eiken, sought leave to appeal against the Master’s decision, arguing that the Tribunal had made errors in its assessment of the evidence and its application of the law.

The primary legal issues that the Court of Appeal needed to address were whether the Tribunal had adopted an incorrect standard of proof, whether it had failed to properly evaluate the weight of the evidence, and whether the reasons provided by the Tribunal were adequate. Additionally, the Court had to consider whether the notice of appeal had raised questions of law or fact, and whether there was sufficient doubt in the decision to warrant leave to appeal. A further consideration was whether, even if the claimed errors of law were corrected on appeal, the outcome of the case would differ.

In its reasoning, the Court of Appeal noted that the Tribunal’s decision was not attended by sufficient doubt to justify leave to appeal. The Court found that the Tribunal had provided adequate reasons for its decision, and that there was no evidence to suggest it had adopted the wrong standard of proof or failed to properly evaluate the weight of the evidence. The Court also determined that the notice of appeal did not raise questions of law or fact that warranted further consideration. Ultimately, the Court concluded that even if the claimed errors of law were corrected, the outcome of the case would not differ. Consequently, the appeal was dismissed, and no leave to appeal was granted.

Orders