Housing Guarantee Fund Ltd v Ryan - [2005] VSC 214

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8747 of 2004

HOUSING GUARANTEE FUND LTD	Plaintiff
v
GLENN RYAN	First Defendant
NARDIA PAPAS	Second Defendant

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JUDGE:	Mandie J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 June 2005
DATE OF JUDGMENT:	23 June 2005
CASE MAY BE CITED AS:	Housing Guarantee Fund Ltd v Ryan
MEDIUM NEUTRAL CITATION:	[2005] VSC 214

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STATUTES – interpretation – appeal from VCAT – whether the indemnity provided by the State under s.37 of the House Contracts Guarantee Act 1987 (Vic) extends to the right to interest from an insurer granted by s.57 of the Insurance Contracts Act 1984 (Cth) – whether an assessment of the costs payable under the State’s indemnity could be referred to the principal registrar of VCAT pursuant to s.111 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).

PRACTICE AND PROCEDURE – whether leave should be granted to add additional questions of law not argued before VCAT.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Murdoch, QC Mr S Stuckey	D Giannakopoulos
For the Defendants	Mr G Uren, QC Mr D Aghion	Rigby Cooke

HIS HONOUR:

This is an appeal by the plaintiff Housing Guarantee Fund Ltd (“HGFL”) against a decision of the Victorian Civil and Administrative Tribunal (“VCAT”) in which it was ordered that HGFL pay certain interest and costs to the defendants.

On 25 November 2004 Master Wheeler gave HGFL leave to file a Notice of Appeal against the said decision of VCAT. In case the Master’s order does not amount to the granting of leave to appeal, within the meaning of s.148(1)(b) of the Victorian Civil and Administrative Tribunal Act (Vic) 1998 (“the VCAT Act”), I indicated at the outset that I would insofar as necessary grant HGFL leave to appeal and no objection was taken to this course by the defendants.

The appeal arises in the following circumstances. The defendants were persons insured by “HIH”[1] for the purposes of the House Contracts Guarantee Act 1987 (Vic) (“the Guarantee Act”) and made claims against HGFL under Part 6 of the Guarantee Act, headed “DOMESTIC BUILDING (HIH) INDEMNITY SCHEME”. Part 6 of the Guarantee Act enacts what the parties referred to as “the rescue package” which was designed to protect house owners who would otherwise have been unable, due to the demise of HIH, to recover damages suffered by them. The central provision of the rescue package is s.37 of the Guarantee Act which provides that, subject to Part 6, the State of Victoria must indemnify any person who is entitled to an indemnity under a HIH policy to the extent of the indemnity under that policy. Part 6 renders HGFL responsible for the administration of the indemnity scheme and the Domestic Building (HIH) Indemnity Fund and provides that HGFL acts on behalf of the State for the purposes of Part 6.
[1]See the definition of “HIH” in s.35 of the House Contracts Guarantee Act 1987 (Vic).

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 Housing Guarantee Fund Ltd v Ryan

Details

AGLC: Housing Guarantee Fund Ltd v Ryan [2005] VSC 214
Case: [2005] VSC 214
Decision Date: 23 June 2005

CaseChat Overview and Summary

The Housing Guarantee Fund Ltd sought to appeal a decision of the Victorian Civil and Administrative Tribunal (VCAT), which had ruled on the scope of indemnity provided under the House Contracts Guarantee Act 1987 (Vic) and the extent to which it covered interest owed by an insurer as per the Insurance Contracts Act 1984 (Cth). Additionally, the appellant questioned the appropriateness of referring an assessment of the costs payable under the indemnity to the principal registrar of VCAT, as permitted by the Victorian Civil and Administrative Tribunal Act 1998 (Vic). Furthermore, the appellant sought leave to add new questions of law not previously argued before VCAT.

The court was required to determine the scope of indemnity provided by the State under section 37 of the House Contracts Guarantee Act 1987 (Vic) and whether it included the right to interest granted by section 57 of the Insurance Contracts Act 1984 (Cth). Additionally, the court had to assess whether an assessment of the costs payable under the indemnity could be referred to the principal registrar of VCAT under section 111 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). The court also needed to decide if leave should be granted to include new questions of law that had not been argued before VCAT.

The court held that the indemnity provided by the State did not extend to the right to interest from the insurer. It also found that the assessment of costs payable under the indemnity could indeed be referred to the principal registrar of VCAT. However, the court refused leave to add new questions of law as they had not been argued before VCAT, as this would not have been fair to the respondent.

The appeal was dismissed, and the decision of VCAT was upheld. The court's ruling clarified the scope of indemnity under the House Contracts Guarantee Act 1987 (Vic) and affirmed the procedure for cost assessments under the Victorian Civil and Administrative Tribunal Act 1998 (Vic).

Orders