Ewert v Audehm - [2001] VSC 380

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4563 of 2001

GEOFFREY JAMES EWERT	Appellant
v
DR RALPH AUDEHM, DR VIRGINIA BOYDEN, JOHN MATYAS PTY LTD AND JOHN MATYAS	Respondents

No. 4568 of 2001

JOHN MATYAS PTY LTD (ACN 006 773 888) AND JOHN MATYAS	Appellants
v
DR RALPH AUDEHM, DR VIRGINIA BOYDEN AND
GEOFFREY JAMES EWERT	Respondents

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JUDGE:	Ashley J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 and 6 September 2001
DATE OF JUDGMENT:	24 September 2001
CASE MAY BE CITED AS:	Ewert v Audehm and Ors
MEDIUM NEUTRAL CITATION:	[2001] VSC 380

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Appeal – leave to appeal – determination of Victorian Civil and Administrative Tribunal – whether a judge of Trial Division may rescind leave granted by a Master.

Proceeding in Tribunal – standing of applicants to initiate and pursue proceeding against builder and architect – previous claim by applicant owners on Housing Guarantee Fund -
Release and Authority executed in respect of claim on Fund – moneys paid by Statutory guarantor – assignment to guarantor of rights of action by applicant owners – what rights of action assigned – interpretation of Release and Authority.

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APPEARANCES:	Counsel	Solicitors
For Geoffrey Ewert	Mr M. Shand QC with Mr M. Roberts	McMahon Fernley
For John Matyas Pty Ltd and John Matyas	Ms B. Lim	Solomon & Associates
For Dr Ralph Audehm and Dr Virginia Boyden	Mr A. Neal	Guymer Naidoo

HIS HONOUR:

The sequence of events

The owners of a property in Bulleen contracted with a builder in 1995 to build them a home. The contract price was $370,000. Work was performed in 1996 and 1997. The owners became dissatisfied with what was being done. In 1997 they made a complaint to Housing Guarantee Fund Ltd (“HGF”). The complaint informed HGF that the contract had been terminated, and that the owners had suffered loss and damage by reason of the termination. It gave notice of a possible claim on HGF.

HGF was and is the approved guarantor for the purposes of the House Contracts Guarantee Act 1987 (“the Act”). It relevantly guaranteed to the owners “the performance of the builder’s obligations under the …. contract”[1]. The liability imposed by the guarantee is described in s. 7(3). Pertinently, the sub-section imposes liability to make good loss or damage suffered by the owner on account of the failure of the builder to fulfil the builder’s obligations under the contract, or a defect caused by bad workmanship. The maximum liability of HGF, fixed by s. 7(4), was relevantly $40,000.
[1]See s. 7(1) of the Act.

Returning to the chronology, the claim on HGF foreshadowed by the letter of solicitors for the owners dated 7 May 1997 was not then pursued. It appears that the contract was reinstated[2]. But HGF evidently gave the claim, or foreshadowed claim, a number – 95513. So much is evident from page 2 of an Incomplete Works Claim which was apparently received by HGF on 14 August 1998.
[2]In Amended…

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 380
Decision Date: 24 September 2001

CaseChat Overview and Summary

The case of Ewert v Audehm involved the applicants, Ewert, and respondents, Audehm, who were engaged in a legal dispute concerning the standing of the applicants to initiate and pursue a proceeding against a builder and architect. This case was brought before the court following a determination made by the Victorian Civil and Administrative Tribunal. The central issue was whether a judge of the Trial Division of the Supreme Court had the authority to rescind leave granted by a Master of the Supreme Court.

The court was required to decide on the interpretation of a Release and Authority executed by the applicants, particularly in relation to a claim on the Housing Guarantee Fund. The applicants had previously claimed moneys from the Fund, which were paid by a statutory guarantor. The applicants had also executed an assignment to the guarantor of their rights of action against the builder and architect. The key legal question was what rights of action were actually assigned to the guarantor and the implications of this assignment on the applicants' ability to pursue their claims against the builder and architect.

The court determined that the judge of the Trial Division had the authority to rescind the leave granted by the Master. It was held that the Release and Authority executed by the applicants amounted to an assignment of all their rights of action against the builder and architect to the guarantor. As a result, the applicants no longer had standing to pursue their claims against the builder and architect. The court's interpretation of the Release and Authority was pivotal in reaching this conclusion, as it confirmed that the assignment was comprehensive and effectively precluded the applicants from initiating or continuing their legal proceedings.

The final orders of the court were to affirm the decision of the Tribunal and to dismiss the applicants' appeal, thereby upholding the ruling that they lacked standing to pursue their claims against the builder and architect.

Orders