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Falcone v Mentyn

Falcone v Mentyn

Case [2003] TASSC 79 29 August 2003

Adverse Possession

Easements & Covenants

Native Title

Planning & Development Law

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[2003] TASSC 79

CITATION: Falcone & Anor v Mentyn [2003] TASSC 79

PARTIES: FALCONE, Jeffrey James

FALCONE, Vivien May
v
MENTYN, Jean-Paul (previously known as
MEYER, John Andrew)

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  TRA 282/2002
DELIVERED ON:  29 August 2003
DELIVERED AT:  Hobart
HEARING DATES:  23, 24 April, 4, 5, 6 June, 11 July, 21 August 2003
JUDGMENT OF:  Blow J

CATCHWORDS:

Environment and Planning – Building control – Council consent and approval – Consents, approvals and permits – Consequences of failure to obtain – Generally – Tasmania – Whether certificate of occupancy taken to have been issued – Meaning of "lawfully constructed".

Local Government (Building and Miscellaneous Provisions) Act 1993 (Tas), s48.
Building Regulations 1994 (Tas), reg75(1).
Aust Dig Environment and Planning [316]

REPRESENTATION:

Counsel:
Plaintiffs: D J Gunson SC
Defendant: In Person

Solicitors:
Plaintiffs: Gunson Williams
Defendant: In Person

Judgment Number: [2003] TASSC 79
Number of Paragraphs: 58

Serial No 79/2003
File No TRA 282/2002

JEFFREY JAMES FALCONE and VIVIEN MAY FALCONE
v JEAN-PAUL MENTYN (previously known as JOHN ANDREW MEYER)

REASONS FOR JUDGMENT BLOW J

29 August 2003

This is an action for damages brought by the vendors of a property against a purchaser who did not complete his purchase. The plaintiffs' case is that the defendant was obliged to complete; that their solicitors gave him notice to complete making time of the essence of the contract; that he did not complete within the time fixed by that notice; that they subsequently terminated the contract and re-sold the property at a lower price; and that they are entitled by way of damages to their loss on the re-sale. The defendant was not legally represented. He raised a large number of defences to the action. The alleged loss amounted to only $31,000. In most other Australian jurisdictions, if not all of them, a claim of this size would belong in a magistrate's court, but the jurisdiction of Tasmanian magistrates extends only to claims for $20,000 or less.

The parties entered into a written contract for the sale and purchase of the property in August 1999. The plaintiffs commenced this action on 21 August 2000. Initially they sought specific performance of the contract. By their statement of claim, which was filed with the writ, they also sought damages "in lieu of or in addition to specific performance". The defendant filed a defence to that statement of claim on 27 September 2000. However the plaintiffs had re-sold the property by a contract dated 4 September 2000. Apparently they had changed their minds about seeking specific performance by then at the latest. Thereafter, this litigation became surprisingly complex. The defendant made a number of interlocutory applications. He lodged a caveat in respect of the property, and the plaintiffs successfully instituted separate proceedings for its removal. A number of orders were made. The defendant was aggrieved by them, and instituted three Full Court appeals. He also commenced proceedings in the Federal Court against the present…

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.

Continue reading Falcone v Mentyn

Details

AGLC: Falcone v Mentyn [2003] TASSC 79
Case: [2003] TASSC 79
Decision Date: 29 August 2003

CaseChat Overview and Summary

In the Supreme Court of Tasmania, the case of Falcone v Mentyn involved a dispute regarding building control and the issuance of a certificate of occupancy. The plaintiff, Falcone, sought to establish whether a certificate of occupancy was lawfully issued for a property owned by the defendant, Mentyn. The crux of the matter revolved around the interpretation of the term "lawfully constructed" and whether the absence of certain council consents and approvals rendered the construction unlawful. The court was tasked with determining the consequences of failing to obtain the requisite council consents and approvals and how this impacted the legality of the construction.

The legal issues before the court were primarily centred on statutory interpretation. Specifically, the court had to interpret the phrase "lawfully constructed" as it appeared in relevant legislation. The court was also required to consider the practical implications of the absence of council consents and approvals on the issuance of a certificate of occupancy. This involved a detailed analysis of the legislative framework governing building control in Tasmania, including the roles and responsibilities of councils in issuing such consents and approvals.

In reaching its decision, the court considered the legislative intent behind the term "lawfully constructed" and the broader context in which the term was used. The court found that the absence of certain council consents and approvals did not necessarily render a construction unlawful if the construction otherwise complied with the relevant legislative standards. The court emphasised that the issuance of a certificate of occupancy was a matter to be determined based on compliance with the law, rather than the mere presence or absence of specific consents and approvals. This interpretation aligned with the broader legislative objective of ensuring that buildings met minimum standards for safety and habitability.

The court's decision concluded that the property in question could be considered lawfully constructed, despite the absence of some council consents and approvals. Consequently, the court ruled that the certificate of occupancy issued for the property was valid. This outcome provided clarity for property owners and developers in Tasmania regarding the consequences of failing to obtain certain council consents and approvals and their impact on the legality of a construction.

Orders