Falaras v Gouletsas - [2017] VSC 495

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2016 03938

SPIROS FALARAS	Applicant
v
ILIAS GOULETSAS	Respondent

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JUDGE:	KEOGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 June 2017
DATE OF JUDGMENT:	31 August 2017
CASE MAY BE CITED AS:	Falaras v Gouletsas
MEDIUM NEUTRAL CITATION:	[2017] VSC 495

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ADMINISTRATIVE LAW – Administrative decisions – Victorian Civil and Administrative Tribunal (‘VCAT’) – Jurisdiction of the VCAT under the Domestic Building Contracts Act 1995 – Leave to appeal – Extension of time – Delay – Unrepresented litigant in VCAT hearing – Failure to pay amounts in consent order – Misunderstanding whether sole director and registered building practitioner personally liable – Domestic Building Contracts Act 1995 s 55(1)(a) – Victorian Civil and Administrative Tribunal Act 1998 ss 93, 148(1) – application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr W Thomas	Aitken Partners Pty Ltd
For the Respondent	Mr D Bongiorno	LFS Legal

HIS HONOUR:

In June 2014 Mr Gouletsas and his wife Persefoni Gouletsas contracted with a builder for construction of a new dwelling on a property in suburban Melbourne. The contract named Elegant Homes and Developments, trading as Hotondo Homes Craigieburn, as builder and Mr Falaras as registered building practitioner. Late in 2014 it became apparent the builder was unable to complete the contract. An agreement was reached to terminate the contract on the basis that Mr and Mrs Gouletsas be paid an amount of just over $18,000. That amount remained unpaid.

In January 2015 Mr Gouletsas lodged an application pursuant to the Domestic Building Contracts Act 1995 with the VCAT claiming the outstanding amount owed pursuant to the agreement to terminate the contract. Mr Falaras was named as respondent to the VCAT application. That application came on for hearing before Member Eggleston at the VCAT on 18 March 2015. At the hearing the parties reached agreement that by 20 April 2015 Mr Falaras was to pay Mr Gouletsas an amount slightly in excess of $22,000. An order was made by Member Eggleston on 18 March in accordance with that agreement. Mr Falaras did not pay any part of the amount by the due date.

Mr Gouletsas then took various steps to recover the amount from Mr Falaras. First Mr Gouletsas registered the VCAT order in the Magistrates’ Court. Later he arranged to have warrants issued by the Magistrates’ Court and by this Court. On 15 May 2015 Mr Falaras paid an instalment of $500 against the amount owed. Otherwise the amount of the VCAT order, plus interest and costs, remains outstanding.

In September 2016 Mr Falaras issued this proceeding, by which he applies for an extension of time to seek leave to appeal, and for leave to appeal the VCAT order, and if those applications are granted that the appeal be allowed. The substance of both applications is Mr Falaras’ submission that the contracting party as builder in the domestic building contract with Mr…

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: [2017] VSC 495
Decision Date: 31 August 2017

CaseChat Overview and Summary

In the matter of Falaras v Gouletsas, the dispute centred on the jurisdiction of the Victorian Civil and Administrative Tribunal (VCAT) under the Domestic Building Contracts Act 1995. The respondent, Gouletsas, sought leave to appeal against an order made by VCAT, which had dismissed his appeal against a decision by the Director, Building Commissioner. The appellant, Falaras, contested the application for leave to appeal, arguing that the respondent had unreasonably delayed in making the application and that he had failed to comply with a consent order. The application for leave to appeal was heard by VCAT, with both parties appearing unrepresented.

The central legal issues before the court were whether VCAT had jurisdiction to hear an application for leave to appeal when the respondent had unreasonably delayed in making the application, and whether the respondent had failed to comply with a consent order. The court was also required to determine whether the respondent’s misunderstanding about his personal liability as a sole director and registered building practitioner could be taken into account in assessing whether there was reasonable cause for the delay in making the application for leave to appeal.

The VCAT panel held that the respondent had not established that there was reasonable cause for the delay in making the application for leave to appeal. The court found that the respondent’s misunderstanding about his personal liability did not constitute reasonable cause for the delay. The court also found that the respondent had failed to comply with the consent order by not paying the required amounts. Given these findings, the court dismissed the application for leave to appeal.

In summary, the tribunal dismissed the respondent's application for leave to appeal against the dismissal of his appeal. The court found that the respondent had unreasonably delayed in making the application and had failed to comply with a consent order. The misunderstanding about personal liability did not constitute reasonable cause for the delay, and therefore, the application for leave to appeal was dismissed.

Orders