Gevah Constructions Pty Ltd v GRN Australia Pty Ltd - [2006] VSC 266

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 9132 of 2005

GEVAH CONSTRUCTIONS PTY LTD (ACN 005 974 596)	Appellant
V
GRN AUSTRALIA PTY LTD (ACN 108 435 927)	Respondent

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JUDGE:	HARGRAVE J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 July 2006
DATE OF JUDGMENT:	31 July 2006
CASE MAY BE CITED AS:	Gevah Constructions Pty Ltd v GRN Australia Pty Ltd
MEDIUM NEUTRAL CITATION:	[2006] VSC 266

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Appeal – discretionary decision of Victorian Civil and Administrative Tribunal under s. 78 of Victorian Civil and Administrative Tribunal Act 1998 (Vic) – whether pre-conditions for exercise of discretion existed – whether exercise of discretion involved an error of law justiciable on appeal under s. 148(1) of Victorian Civil and Administrative Tribunal Act 1998 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr V Ruta	Jack Bock Lawyers
For the Respondent	Mr J Brett	Deacons

HIS HONOUR:

Factual Background to Appeal

The appellant (“Gevah”) is a property developer. The respondent (“GRN”) is a distributor of polystyrene products. In November 2004, GRN agreed to supply, install and render polystyrene sheets on the exterior of 15 home units being constructed by Gevah (“the contract”).

The contract price was calculated by reference to calculations of the total area to be covered by the polystyrene sheets and rendered, including an allowance for wastage. The calculations upon which the contract price was based were made by Gevah. In these circumstances, the contract contained a provision to protect GRN in the event that more polystyrene sheets were required than those specified in the contract. In this respect, the contract provides:

“Variations:
As per Gevah Constructions calculations, the area calculated for the works involved (allowing for waste) is 1150 sqm. Since each 40 mm “M” Grade Polystyrene sheet is 3 m this area is equivalent to 384 sheets.
GRN Wallboards and Gevah Constructions P/L agree that, should extra polystyrene be needed to complete the project, Gevah Constructions to pay $215.70 for each extra sheet (Excluding GST) for the supply and render. This is equivalent to $71.90 per square metre. (Excluding GST).
Additional cartage will be charged at $120.00 per delivery (Excluding GST).”

The 15 units were to be constructed in three stages of five units each. After completion by GRN of its part of stage 2 of the works, it became apparent to GRN that extra polystyrene sheets would be required to complete stage 3. By letter dated 10 March 2005, GRN informed Gevah that it had already used 343 polystyrene sheets in the completion of stages 1 and 2. Accordingly, the 384 polystyrene sheets referred to in the contract would be insufficient to complete stage 3. Gevah was put on notice that extra charges would be made for additional sheets in order to complete stage 3. Specific reference was made in this letter to the term of the contract to which I have referred above.

It appears that there was no response to this letter from GRN to Gevah.…

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: [2006] VSC 266
Decision Date: 31 July 2006

CaseChat Overview and Summary

Gevah Constructions Pty Ltd sought judicial review of a decision of the Victorian Civil and Administrative Tribunal (VCAT), which dismissed its claim for damages against GRN Australia Pty Ltd. The dispute arose from a building contract, where Gevah alleged GRN failed to perform its obligations, leading to financial loss. The primary issue before the court was whether the Tribunal’s decision to dismiss the claim constituted a discretionary decision under s. 78 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) and whether any errors of law were made.

The court considered whether the Tribunal had correctly identified the pre-conditions for exercising its discretion to dismiss the claim and whether the exercise of that discretion involved an error of law. It was necessary to determine if the Tribunal's decision could be subject to judicial review under s. 148(1) of the Act. The court found that the Tribunal had indeed exercised a discretionary power but did not find that any error of law was made in the exercise of that discretion. The Tribunal’s findings were based on a proper application of the relevant legal principles to the evidence presented.

In conclusion, the court upheld the Tribunal’s decision, dismissing Gevah's appeal. The Tribunal was found to have correctly exercised its discretion and no error of law was identified that warranted setting aside the decision. The orders of the Tribunal remained in place, with Gevah's claim for damages against GRN being dismissed.

Orders