JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	1 May 2025
DATE OF RULING:	27 June 2025
CASE MAY BE CITED AS:	Icbudak v Alsa Constructions
MEDIUM NEUTRAL CITATION:	[2025] VSC 377

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APPEAL – Application for an extension of time to appeal cost orders made by the Victorian Civil and Administrative Tribunal – Icbudak v Symmetric Homes Pty Ltd (Building and Property) (Costs) [2024] VCAT 595 – Applicants sought costs of rectifying alleged defects to their house – Icbudak v Symmetric Homes Pty Ltd (Building and Property) [2021] VCAT 1074 – Huang v Frankston City Council [2024] VSCA 38 – Explanation for delay – Whether any prejudice has been caused by the delay – Merits of the proposed appeal – Discretionary nature of cost decisions – Francis v Wilson [2023] VSC 410 – Real prospect of success – Extension of time to appeal granted.

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APPEARANCES:	Counsel	Solicitors
The Applicants in person
For the Respondents	Mr J Twigg KC with Mr L Hogan	Ward & Co. Legal Consultants

TABLE OF CONTENTS

Material

Background

Applicable Principles

Extension of Time
Cost rulings are discretionary
Error of Law

Notice of Appeal

Analysis

Length of delay
Explanation for the delay
Applicants’ submissions
Respondents’ submissions
Analysis - explanation of delay

Whether delay has occasioned respondents to suffer prejudice
Merits of the proposed appeal
Applicants’ submissions
Respondents’ submissions
Analysis – merits of appeal

Conclusion

HER HONOUR:

Neset Icbudak and Hulya Icbudak filed a notice seeking to appeal cost orders made by the Victorian Civil and Administrative Tribunal (‘Tribunal’). Their notice of appeal was filed more than three months late. The applicants seek an extension of time. The respondents oppose the application.

Material

The applicants are self-represented. They rely on two affidavits of the first applicant, Mr Icbudak, respectively sworn on 12 December 2024 and 25 February 2025, and their outline of submissions filed on 27 March 2025.
The respondents rely on the affidavit of their solicitor, Marvin Lyle Ward, sworn on 6 March 2025, and their outline of submissions filed on 24 April 2025.

Background

The applicants issued a Tribunal proceeding seeking the costs of rectifying alleged defects to their house from the respondents (‘Tribunal proceeding’).
The respondents to the Tribunal proceeding were:
(a)the first respondent, Symmetric Homes Pty Ltd (‘Symmetric’), a building company – its director, Mr Yorenc, was also a registered builder;
(b)the second respondent, Alsa Constructions, a building company controlled by Mr Alinc;
(c)the third respondent, Mr Alinc, was a registered builder; and
(d)the fourth respondent, Mrs Alinc, Mr Yorenc’s sister.
The applicants alleged that the respondents had breached implied warranties. The applicants asserted their rights as subsequent owners per ss 8 and 9 of the Domestic Building Contracts Act 1995 (Vic).[1]
[1]See Icbudak v Symmetric Homes Pty Ltd (Building…

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 Icbudak v Alsa Constructions

Details

AGLC: Icbudak v Alsa Constructions [2025] VSC 377
Case: [2025] VSC 377
Decision Date: 27 June 2025

CaseChat Overview and Summary

In the matter of Icbudak v Alsa Constructions, the applicant sought an extension of time to appeal costs orders made by the Victorian Civil and Administrative Tribunal (VCAT). The applicant had previously sought and obtained costs for rectifying alleged defects in their house from Symmetric Homes Pty Ltd, a matter that was decided by VCAT in 2021. The current application concerns the costs associated with that decision, which were the subject of a further VCAT determination in 2024. The applicant argued that they should be granted an extension to appeal the cost orders on the basis of delay, and without prejudice to the respondent.

The primary legal issues the court had to determine were whether there was a satisfactory explanation for the delay in lodging the appeal, whether any prejudice had been caused by the delay, and whether the proposed appeal had a real prospect of success. The court also considered the discretionary nature of cost decisions and the appropriate criteria to apply in granting an extension of time. The applicant's arguments were supported by references to previous cases such as Huang v Frankston City Council and Francis v Wilson, which provided guidance on the principles to be applied in such circumstances.

The court found that the applicant had provided a satisfactory explanation for the delay, and that no prejudice had been caused to the respondent as a result. The applicant's explanation was deemed reasonable, and the court accepted that the delay was not due to any fault or neglect on their part. In terms of the merits of the proposed appeal, the court was satisfied that there was a real prospect of success, based on the arguments presented and the applicable legal principles. The court emphasised the discretionary nature of cost decisions and noted that the matter was suitable for appeal. Accordingly, the court granted the application for an extension of time to appeal the costs orders.

The final orders of the court were that the applicant be granted an extension of time to appeal the costs orders made by VCAT, and that the applicant's application for an extension of time be otherwise dismissed without costs. This decision provides useful guidance for parties in similar situations, highlighting the importance of providing a satisfactory explanation for any delay in lodging an appeal and demonstrating that the proposed appeal has a real prospect of success.

Orders