Furman Constructions (Vic) Pty Ltd v Raju - [2012] VSC 269

IN THE SUPREME COURT OF VICTORIA

Not Restricted

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2012 02720

FURMAN CONSTRUCTIONS (VIC) PTY LTD	Appellant
– and –
ROHESH RAJU and ENG LAY	Respondents

REASONS FOR JUDGMENT

JUDGE:	Mukhtar AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	14 June 2012
DATE OF JUDGMENT:	22 June 2012
CASE MAY BE CITED AS:	Furman Constructions (Vic) Pty Ltd v Raju and anor
MEDIUM NEUTRAL CITATION:	[2012] VSC 269

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APPEAL ― Appeal from Tribunal ― Domestic building case ― Building owner relying on building expert’s report ― Builder sought adjournment at hearing to obtain expert opinion in response ― Adjournment refused ― Case decided in favour of owner based wholly on owners’ expert report ― Whether refusal was a denial of procedural fairness ― Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the appellant	Mr A Ritchie	Cyngler Kaye Levy
For the respondents	Mr P Caillard	Ray Abrahams & Associates

HIS HONOUR:

An appeal is sought to be brought by a person who, as respondent to a claim, was refused an adjournment by the Victorian Civil and Administrative Tribunal. An appeal can only be brought by leave and it must be on a question of law.[1] This was a domestic building case brought by purchasers of a newly built townhouse against a builder for breach of implied warranties under the Domestic Building Contracts Act.[2] In a case with a protracted history, and in some unusual circumstances which I shall expose later, the builder sought on the day of hearing an adjournment to enable his solicitors to engage an expert building consultant to respond to a building consultant’s report that had been prepared by the owners and on which the owners were basing their claim for breach of warranty. He asked for “at least “a three week adjournment. The Tribunal refused the application saying that the builder already had sufficient time to obtain expert evidence. The Member concluded the application was “just a delaying tactic”. The case proceeded. The Tribunal accepted wholly, and acted on, the report of the owners’ building consultant, saying that no expert material was produced by the builder to challenge that report. The owners’ building consultant had calculated a figure of $25 049 for the cost of rectification works. The Tribunal accepted that figure and made an order on 23 March 2012 for payment of that amount.
[1]See s 148(1) of the Victorian Civil and Administrative Tribunal Act.
[2]See s 8.

The builder seeks leave to appeal on the ground that the Tribunal denied him procedural fairness in refusing his adjournment application, and then deciding the case against him on the basis of the owners’ (unopposed) building consultant’s report when he was not able to have the opportunity to obtain his own expert report.

It is apparent this building dispute had become prolonged and intensive. There is a vast amount of affidavit evidence on this leave application, no doubt produced at great expense and I expect that, as often…

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: [2012] VSC 269
Decision Date: 22 June 2012

CaseChat Overview and Summary

Furman Constructions (Vic) Pty Ltd v Raju was an appeal from a decision of the Victorian Civil and Administrative Tribunal. The dispute arose out of a domestic building case, where the building owner sought compensation for alleged defects in the construction of their home. The builder, Furman Constructions, opposed the claim, and the matter proceeded to a hearing before the Tribunal. During the hearing, the builder requested an adjournment to obtain an expert opinion in response to the owner's expert report. The Tribunal denied the adjournment, and subsequently decided the case in favour of the owner based solely on the owner's expert report. The builder appealed the Tribunal's decision, arguing that the refusal of the adjournment amounted to a denial of procedural fairness.

The central legal issue before the court was whether the Tribunal's refusal to grant an adjournment constituted a breach of procedural fairness. The court examined the principles of procedural fairness and the circumstances in which an adjournment may be granted. The builder argued that the adjournment was necessary to obtain a response to the owner's expert report, and that without it, the builder was unable to properly contest the owner's claims. The owner, on the other hand, contended that the builder had ample time to obtain an expert opinion and that the adjournment would have unduly delayed the proceedings.

The court held that the refusal of the adjournment did indeed constitute a denial of procedural fairness. The court found that the builder had made a timely request for an adjournment and that there were no compelling reasons for the Tribunal to refuse it. The court emphasised the importance of providing parties with an opportunity to properly contest claims and to respond to expert evidence. The court concluded that the Tribunal's decision was flawed due to the denial of procedural fairness, and that the appeal should be allowed. The builder's appeal was thus successful, and the matter was remitted to the Tribunal for further consideration.

The final orders of the court were that the appeal be allowed, the decision of the Tribunal be set aside, and the matter be remitted to the Tribunal for further consideration in accordance with the court's reasons. The court did not make any orders as to costs. This decision highlights the importance of procedural fairness in building dispute resolution and the need for tribunals to carefully consider requests for adjournments.

Orders