Imerva Corporation Pty Ltd v Kuna
[2016] VSC 461
•18 August 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
judicial review and appeals list
S CI 2015 06503
| IMERVA CORPORATION PTY LTD (ACN 124 486 308) | Plaintiff |
| v | |
| ANTON KUNA & JAGA KUNA | Defendants |
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JUDGE: | McDonald J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 and 21 July 2016 |
DATE OF JUDGMENT: | 18 August 2016 |
CASE MAY BE CITED AS: | Imerva Corporation Pty Ltd v Kuna |
MEDIUM NEUTRAL CITATION: | [2016] VSC 461 |
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ADMINISTRATIVE LAW – Application for leave to appeal from Victorian Civil and Administrative Tribunal on questions of law – whether parties to a major domestic building contract had agreed that the progress payments regime prescribed by the Domestic Building Contracts Act 1995 did not apply – whether plaintiff able to contend that defendants were estopped from insisting upon compliance with the statutory regime for progress payments – decision of Tribunal not attended by sufficient doubt to warrant the grant of leave to appeal – Victorian Civil and Administrative Tribunal Act 1998 s 148 – Domestic Building Contracts Act 1995 ss 11, 40, 132 – Domestic Building Contract Regulations 2007 reg 12.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Robins QC | Guymer Lawyers Pty Ltd |
| For the Defendants | Mr R Andrew | Noble Lawyers |
HIS HONOUR:
The plaintiff (‘Imerva’) seeks leave to appeal against orders made by the Victorian Civil and Administrative Tribunal (‘the Tribunal’) constituted by Senior Member Walker dated 27 November 2015. Leave to appeal is sought pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’).[1]
[1]Summons on Originating Motion filed 23 December 2015, [1].
The proceedings in the Tribunal involved a dispute between Imerva and Anton and Jaga Kuna (‘the owners’) in respect of a major domestic building contract within the meaning of the Domestic Building Contracts Act1995 (‘the Act’).
Under the contract Imerva agreed to construct two units for the owners for a price of $1,983,024.00 inclusive of GST.
‘Schedule 3 Method 2’ of the contract states that the parties agreed:
(i) that the Progress Payments fixed by Section 40 of the Domestic Building Contracts Act 1995 do not apply; and
(ii) that instead the percentage of the Contract Price and the amounts payable are as follows:[2]
Thereafter a table, annexed to this judgment marked ‘Annexure A’, prescribes progress payments of varying percentages and amounts for 20 separate stages totalling $1,983,024.00.
[2]‘Victorian New Homes Contract for 4 Inner Crescent Brighton’ dated 13 January 2013, 9.
Immediately following on from Schedule 3 Method 2, at page 10 of the contract is a document headed ‘Attachment 1’. Thereunder appears the sub-heading ‘FORM 1 OF THE REGULATIONS – REGULATION 6(A) WARNING TO OWNER – CHANGE OF LEGAL RIGHTS’.[3] The full text of this document, with the initials redacted, is annexed to this judgment marked ‘Annexure B’.
[3]Ibid 10.
Both at first instance and in the current proceedings it was not in dispute that payments totalling $872,531.00 were made by the owners to Imerva.[4] This sum was comprised of seven progress payments made in accordance with the Schedule, which is ‘Annexure A’ to this judgment.
[4]Imerva Corporation Pty Ltd v Kuna (Building and Property) [2015] VCAT 2058, [265]; Transcript of Proceedings, Imerva Corporation Pty Ltd v Kuna (Supreme Court of Victoria, S CI 2015 06503, McDonald J, 20 July 2016 – 21 July 2016) T90 LL29–30, T97 LL19-23, T146 LL21-24.
Building work had commenced in February 2013. As work proceeded disputes arose between the parties, including as to the quality of the work and the liability of the owners to meet further progress payment claims. On 7 April 2014, the owners served a Notice to Remedy the Breach of Contract in accordance with cl 43.2 of the contract providing Imerva with 10 days to remedy the breach identified in the notice. On 11 April 2014, Imerva served a Notice to Remedy Breach pursuant to cl 42 of the contract complaining of non-payment of progress payments 8, 9 and 10 totalling $356,144.00. On 24 April 2014, the owners served a notice on Imerva terminating the contract. On 29 April 2014, Imerva served a notice on the owners terminating the contract.
On 6 May 2014, Imerva commenced proceedings in the Tribunal. Imerva claimed a total of $529,820.62,[5] including sums for the three unpaid progress claims ($356,944.00), variations ($79,319.07), and for delay costs ($69,260.00).[6] In addition, Imerva claimed interest under the contract, a 10% builder’s margin on the unpaid progress claims and variations, and GST.[7]
[5]Imerva Corporation Pty Ltd v Kuna (Building and Property) [2015] VCAT 2058, [14].
[6]Ibid [16].
[7]Ibid.
The owners counterclaimed seeking $634,568.00 for the return of all of the progress claims they had made after the base stage; $1,103,476.00, being the additional cost to complete the units; and $82,704.00, being the costs of rectification and incomplete works.[8]
[8]Ibid [17].
In the current proceedings, Mr Robins QC, who appeared for Imerva, submitted that the question of whether the owners were entitled to rely upon the schedule of progress payments prescribed by s 40(2) of the Act, rather than the schedule annexed to this judgment, was the ‘killing ground’[9] in the application for leave to appeal. This is an apt description. For the reasons which follow, I have concluded that the owners were entitled to rely upon s 40(2) of the Act. The application for leave to appeal is dismissed.
[9]Transcript of Proceedings, Imerva Corporation Pty Ltd v Kuna (Supreme Court of Victoria, S CI 2015 06503, McDonald J, 20 July 2016) T3 LL16–18.
Relevant legislation
Before turning to the questions of law which are the subject of the application for leave to appeal, it is appropriate to set out in detail the provisions of the Act which regulate progress payments in respect of major domestic building contracts. Part 3 of the Act contains provisions that only apply to major domestic building contracts. A major domestic building contract is defined in s 3(1) of the Act as ‘a domestic building contract in which the contract price and the carrying out of the domestic building work is more than $5000 (or any higher amount fixed by the regulations)’. There is no issue in the current proceedings that the contract between Imerva and the owners was a major domestic building contract.
Section 11(1)(a) of the Act provides:
(1)A builder must not demand or receive a deposit under a domestic building contract of more than –
(a) 5% of any contract price that is $20000 or more;
…
before starting any work under the contract.
Penalty: 100 penalty units.
Sections 40(2) to (4) of the Act provides:
(2)A builder must not demand or recover or retain under a major domestic building contract of a type listed in column 1 of the Table more than the percentage of the contract price listed in column 2 at the completion of a stage referred to in column 3.
Penalty: 50 penalty units.
TABLE Column 1 Column 2 Column 3
Type of contractPercentage
of contract price
StageContract to build to lock-up stage 20% Base stage " 25% Frame stage Contract to build to fixing stage 12% Base stage " 18% Frame stage " 40% Lock-up stage
Contract to build all stages 10% Base stage " 15% Frame stage " 35% Lock-up stage " 25% Fixing stage
(3)In the case of a major domestic building contract that is not listed in the Table, a builder must not demand or receive any amount or instalment that is not directly related to the progress of the building work being carried out under the contract.
Penalty: 50 penalty units.
(4)Subsections (2) and (3) do not apply if the parties to a contract agree that it is not to apply and do so in the manner set out in the regulations.
Section 132(1) of the Act provides:
Subject to any contrary intention set out in this Act –
(a)any term in a domestic building contract that is contrary to this Act, or that purports to annul, vary or exclude any provision of this Act is void; and
(b)any term of any other agreement that seeks to exclude, modify or restrict any right conferred by this Act in relation to a domestic building contract is void.
Mr Andrew, who appeared for the owners, submitted without any opposition, that insofar as sub-ss (2) and (3) of s 40 of the Act each prescribe a penalty of 50 penalty units, these provisions create criminal offences.[10] I accept this submission. There is no provision in the Act which indicates that the penalties prescribed by s 40(2) and 40(3) are civil penalties. To the contrary, s 59 (Tribunal may hear dispute regardless of related criminal proceedings) and s 131 (time limit for criminal proceedings) are consistent with the offences created by s 40(2) and 40(3) being criminal rather than civil.
[10]Transcript of Proceedings, Imerva Corporation Pty Ltd v Kuna (Supreme Court of Victoria, S CI 2015 06503, McDonald J, 20 July 2016) T109 LL14–15, T110 LL22–23.
Section 194 of the Australian Consumer Law and Fair Trading Act2012 (‘ACL Act’) provides that proceedings for an offence under a ‘Consumer Act’ may be brought by the Director or a person authorised by the Director. The word ‘Director’ is defined in s 3 of the ACL Act as the ‘Director of Consumer Affairs Victoria’. ‘Consumer Act’ is defined in s 3 of the ACL Act as including ‘an Act listed in Schedule 1’. Schedule 1 includes the Domestic Building Contracts Act1995.
The upshot of the provisions set out above is that the Director may bring criminal proceedings for offences against the Act, including s 40(2) and 40(3), at any time up to three years after the offence was committed in accordance with s 131 of the Act.
Leave to appeal
The jurisdiction conferred by s 148 of the VCAT Act is confined to appeals on a question of law. An appeal under s 148 is not an appeal by way of rehearing. Rather, the proceeding is in the nature of judicial review.[11] Where an appellant under s 148 seeks to have an order set aside and reversed, the question of law must be such that, if there is shown to be error in respect of that question, an appellant’s claim to relief will thereby be advanced.[12] On an application for leave to appeal the question of law must bear directly upon the relief which is sought in the appeal and it must be shown that there is sufficient doubt attending that question to justify the grant of leave to appeal.[13]
[11]Osland v Secretary to the Department of Justice (No 2) (2010) 241 CLR 320, [18]–[21].
[12]Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331, [9].
[13]Ibid [9]–[13]. See also Update Pty Ltd v Commissioner of State Revenue [2014] VSCA 218, [2]; Naim v Medical Board of Australia [2013] VSCA 205, [28]–[29]; Myers v Medical Practitioners’ Board of Victoria (2007) 18 VR 48, [28]–[30].
The plaintiff’s Originating Motion filed on 23 December 2015 identifies six questions of law. As noted above, the primary issue both in the Tribunal and in the application for leave to appeal concerned the construction of s 40(4) of the Act and reg 12(a) of the Domestic Building Contract Regulations 2007 (‘the Regulations’). As such, it is appropriate in the first instance to address questions 1 and 2 of the questions of law which raise this issue. Questions 1 and 2 are as follows:
1. What is the proper construction of Section 40(4) of the Domestic Building Contracts Act1995 (“the Act”) and Regulation 12(a) of the Domestic Building Contracts Regulations2007 (“the Regulations”) and in particular:
(a) Is the affixing of initials by a building owner to a page including Form 1 of the Regulations a sufficient signature for the purpose of these provisions; and
(b) Does the term “before the execution of the contract” mean:
(i) before the mere act of the signing of the contract; or
(ii) before completion of all formalities, such as signing, sealing and delivery, or satisfaction of any escrow provision or condition precedent, as may be necessary to give validity or legal efficacy to the contract?
2. Did the Tribunal err in law in finding that the Section 40 warning in the building contract dated 13 January 2013 (“the Contract”) was not signed by the Defendants in circumstances where the Defendants admitted that they initialled the page including the Section 40 warning before delivering the signed document to Imerva? (collectively with paragraph 1 “the Section 40 decision”)?[14]
[14]‘Originating Motion Between Parties’ filed 23 December 2015, 4.
For the reasons set out below I have concluded that there is insufficient doubt attending either question 1 or question 2 to justify the granting of leave to appeal.
Questions 1 and 2
Mr Robins submitted that by initialling Attachment 1 to the contract (see ‘Annexure B’ to this judgment) the owners and Imerva had complied with s 40(4) of the Act: i.e. they had agreed that s 40(2)-(3) did not apply and they had done so in the manner set out in reg 12(a) of the Regulations.[15] Mr Robins submitted that by initialling the bottom right hand corner of Attachment 1, the owners had signed a warning in the form of Form 1 in the schedule to the Regulations.[16] He submitted that it was irrelevant that the owners’ initials did not appear on the line adjacent to the word ‘SIGNATURE’ where it appears in Form 1.[17]
[15]Transcript of Proceedings, Imerva Corporation Pty Ltd v Kuna (Supreme Court of Victoria, S CI 2015 06503, McDonald J, 20 July 2016) T7 LL18–22.
[16]Ibid T8 LL5–18.
[17]Ibid T8 L20 – T9 L1.
Consideration of Questions 1 and 2 involves the construction of s 40 of the Act together with reg 12 of the Regulations. In Treasurer of Victoria v Tabcorp Holdings Ltd[18] the Victorian Court of Appeal stated:
Interpreting a particular provision requires consideration of the legislative context and – where relevant – the legislative history. But if the words are clear and unambiguous, and can be intelligibly applied to the subject-matter, the provision must be given its ordinary and grammatical meaning, even if the result may seem inconvenient or unjust. These principles apply to a taxing statute as to any other.[19]
[18][2014] VSCA 143.
[19]Ibid [2] citing Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 305; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27, 49.
Applying the ordinary and grammatical meaning of s 40(4) and reg 12, it is clear that the owners did not agree in the manner set out in the Regulations that sub-ss (2) and (3) of s 40 of the Act were not to apply. In order for the parties to a domestic building contract to avoid the operation of s 40(2)-(3) they must do two things. First, they must agree that sub-ss (2) and (3) are not to apply. Second, they must record that agreement in the manner set out in the Regulations. This requires owner to acknowledge, in the space provided, they have read the prescribed warning. Plainly, the owners did not acknowledge the prescribed warning in the manner set out in the Regulations. No signature or mark appears in the designated place.
In addition to the plain words of s 40(4) of the Act, legislative context strongly supports the conclusion that compliance with reg 12 is a mandatory pre-condition to the non-application of sub-ss (2) and (3). Section 40(2) prescribes a criminal offence with a penalty of up to 50 penalty units for a builder to demand, recover or retain progress payments in excess of the amounts prescribed in Column 3 of the table which is part of s 40(2). The fact that non-compliance with s 40(2) exposes a builder to potential criminal sanction strongly supports the conclusion that in order to avoid the operation of s 40(2), there must be strict compliance with s 40(4). This includes the requirement that any agreement avoiding the operation of s 40(2) be in the form prescribed by the Regulations.
The conclusions set out above renders it unnecessary for me to express any concluded view as to whether the owners’ act of initialling (the bottom right hand corner of Attachment 1 to the contract) amounts to signing. However, for the sake of completeness I shall address this issue.
Mr Andrew submitted that the owners’ initials—not in the place designated by the Regulations—did not constitute a signed acceptance by them for the purposes of reg 12(a).[20] He pointed out that each page of the contract had been initialled by both Imerva and the owners.[21] This included page 8, headed ‘Schedule 4 Method 1’.[22] The contents of this Schedule replicate the progress payment table in s 40(2) of the Act for a contract to build all stages. I accept Mr Andrew’s submission that if the owners’ initials in a corner of the page constituted a signed acceptance, this would mean that the owners accepted both the progress payments prescribed by s 40(2) as well as the different schedule of progress payments set out at page 9 (see ‘Annexure A’ to the judgment) which had also been initialled. Plainly, the owners could not have agreed to both schedules. I accept Mr Andrew’s submission that by initialling each page of the contract the owners and Imerva were simply acknowledging that each page was part of the contract. The owners’ initials in a corner of the page did not constitute a signed acknowledgement by them that s 40(2) and (3) did not apply.
[20]Transcript of Proceedings, Imerva Corporation Pty Ltd v Kuna (Supreme Court of Victoria, S CI 2015 06503, McDonald J, 20 July 2016) T105 LL15–20.
[21]Ibid T105 LL6–11.
[22]Ibid T103 LL24–29.
The estoppel/unconscionability decision
Both in the Tribunal proceedings and in the current proceedings Imerva contended that if it and the owners had not complied with s 40(4) of the Act, the owners were nevertheless estopped from relying on s 40(2) of the Act. Question 6 of the questions of law in the Originating Motion is as follows:
6.Did the Tribunal err in law in its approach to the principles expressed in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 and Commonwealth v Verwayen (1990) 170 CLR 394 in finding that:
(a)there was no estoppel upon which Imerva could rely to allow recovery of the Schedule 3 Method 2 progress payments despite an express or implied representation made by Paritsi as actual agent of the Defendants at or about the time of the execution of the Contract to the effect that the Defendants had signed the warning contained in Form 1 of the Regulations (“the Representation”) and the Plaintiff (“Imerva”) had thereafter performed the Contract in reliance upon the Representation and the assumptions arising therefrom; and/or
(b)it was not unconscionable for the Defendants to rely upon Section 40(2) and (3) of the Act and 12(a) of the Regulations despite the Representation and/or the circumstances that:
(i)the draft Contract was settled by the Defendants’ daughter who was a fully qualified solicitor and where the draft Contract contained the Warning and the Clause required in Forms [sic] and 2 of the Regulations;
(ii)Paritsi as an actual agent of the Defendants, and as an experienced person in building and construction, had reviewed and approved the method of progress payments contained in Schedule 3 Method 2 of the Contract prior to execution of the Contract; and
(iii)At the time of the Representation the Contract was still subject to the escrow or condition precedent terms of the handwritten letter agreement dated 13 January 2013? (“the estoppel/unconscionability decision”).[23]
[23]‘Originating Motion Between Parties’ filed 23 December 2015, 5.
Leave to appeal in respect to Question 6 is refused on the ground that to do so would be inutile. During the proceedings at first instance both the plaintiff and the defendants erroneously accepted that Imerva could contend that the owners were estopped from relying on s 40(2) of the Act, albeit that the owners argued that the estoppel was not made out.[24] Imerva should not have been permitted to advance its estoppel argument. On a proper construction of the statutory scheme prescribed by the Act, estoppel is not available to qualify the rights conferred upon owners by the operation of s 40 of the Act and reg 12 of the Regulations.
[24]See Respondents, ‘Submissions’ dated 24 August 2015 filed in proceeding No. D411/2014, [8]-[18].
Whether general law principles relating to estoppel will apply to a statutory prohibition depends ‘upon the construction of the particular statutory provision, in its context and informed by an understanding of its purpose.’[25]
[25]Tudor Developments Pty Ltd v Makeig (2008) 72 NSWLR 624, [73]. See also Kok Hoong v Leong CheongKweng Mines Ltd [1964] AC 993, 1015–1017.
Section 40(2) creates a criminal offence punishable by up to 50 penalty units for a builder to demand, recover or retain progress payments in excess of the percentages of the contract price prescribed in the table which forms part of s 40(2) of the Act. Section 40(4) allows the parties to avoid the operation of s 40(2) by agreeing that the provision is not to apply, and doing so in the manner set out in the Regulations. The purpose and effect of ss 40(2), 40(4) and 132 of the Act and reg 12 of the Regulations is to confer a benefit upon the owners. The relevant benefit is to prevent a builder from ‘front-loading’ progress payments under a building contract.[26] The operation of this benefit is brought into sharp focus by the facts of the present case. It was not disputed that, at the time of the termination of the contract in April 2014, the owners had paid Imerva a sum equivalent to 44% of the total contract price.[27] It was also not in issue that had the progress payments been in accordance with the table prescribed in s 40(2), the amount which the owners would have been required to have paid Imerva would have been limited to 15% of the contract price. This differential is reflected in the Tribunal’s decision that the owners were entitled to recover $634,568.00 from Imerva from the $872,531.00 which had been paid to it at the time of termination of the contract.[28]
[26]Transcript of Proceedings, Imerva Corporation Pty Ltd v Kuna (Supreme Court of Victoria, S CI 2015 06503, McDonald J, 20 July 2016) T85 L29 – T86 L3.
[27]See ibid T86 L22-23, T113 L28-30, T117 L26-27.
[28]Imerva Corporation Pty Ltd v Kuna (Building and Property) [2015] VCAT 2058, [265].
To the extent that the legislature has qualified the operation of s 40(2)-(3) of the Act, it has done so expressly in s 40(4). The operation of s 40(2) can only be avoided in circumstances where there has been strict compliance with the terms of s 40(4) of the Act and reg 12 of the Regulations. Further, the effect of s 132 of the Act is that any term of a contract which purports to exclude the operation of s 40(2) is void, save for a term which complies with s 40(4) and reg 12. The Act provides for the consequences of a contravention by way of criminal sanction prescribed by s 40(2). The statutory scheme leaves no room for a builder to contend that an owner is estopped from insisting upon compliance with s 40(2) of the Act.
In Tudor Developments Pty Ltd v Makeig,[29] the New South Wales Court of Appeal held that estoppel could not be pleaded by a vendor against a purchaser seeking to rescind a contract of sale in reliance on s 96A(3) of the Home Building Act1989 (NSW). The court concluded that the availability of estoppel was precluded by the language of s 96A(3), its purpose, its statutory context and the history of the statute.
[29](2008) 72 NSWLR 624.
Section 96A provided, relevantly:
(1)A developer must not enter into a contract for sale of land on which residential building work… is to be done, on the developer’s behalf unless a certificate of insurance evidencing the contract of insurance required under section 92 by the person who did or does the work for the developer, in a form prescribed by the regulations, is attached to the contract of sale.
…
(3)If a person contravenes sub-section (1) in respect of a contract, the contract is voidable at the option of the purchaser before the completion of the contract.
…
Basten JA considered that a purpose of s 96A(3) was to ‘protect purchasers from themselves’.[30] The same observation can be made in respect of the combined effect of ss 40(4) and 132 of the Act. The table of progress payments prescribed by s 40(2), combined with the potential criminal sanction for non-compliance, confers a benefit upon building owners. The requirement that s 40(2) can only be avoided if there has been compliance with the terms of s 40(4) and reg 12(a) is designed to strictly prescribe the circumstances in which building owners forego the benefits conferred by s 40(2) of the Act.
[30]Ibid [71].
The clear consumer protection purpose of ss 11, 40(2) and (4), 132 and reg 12(a) weighs heavily in favour of the conclusion that estoppel may not be raised to avoid the operation of the progress payment schedule prescribed by s 40(2) of the Act.[31]
[31]Cf Spirovski v Univest Assett Merchants Syndicators Pty Ltd & Anor [2013] VSC 728, [85], [88], [91]; Everest Project Developments Pty Ltd v Mendoza [2009] VSC 366, [98]; Considine v Citicorp Australia Ltd [1981] 1 NSWLR 657, 662–663; Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502, 510; Coshott v Barry [2015] NSWCA 257, [96].
If the conclusion set out above is erroneous and Imerva was entitled to contend that the owners were estopped from relying upon the operation of s 40(2), I would nevertheless refuse to grant leave to appeal.
Mr Robins accepted that in order to succeed in any challenge to the Tribunal’s estoppel finding, Imerva had to establish that the owners’ reliance upon s 40(2) of the Act was unconscionable.[32] I raised with Mr Robins whether he could identify any authority in which a court had concluded that it was unconscionable for a party to insist upon another party complying with a statutory provision, non-compliance with which constituted a criminal offence.[33] He could not point to any such authority.[34]
[32]Transcript of Proceedings, Imerva Corporation Pty Ltd v Kuna (Supreme Court of Victoria, S CI 2015 06503, McDonald J, 20 July 2016) T23 LL26–29, T24 L28 – T25 L2.
[33]Ibid T25 LL5–12.
[34]Ibid T25 LL17–18.
The effect of the statutory scheme prescribed by the Act is that absent strict compliance with s 40(4) and reg 12, it is a criminal offence for a builder to demand or retain progress payment in excess of those prescribed by s 40(2) of the Act. Relevantly, the Tribunal concluded:
I cannot spell out from the facts referred to any representation which would make it inequitable for the Owners to rely upon the protection that the Act intended to give them.[35]
This reasoning, which acknowledges the beneficial character of s 40(2) of the Act, is not attended by any error.
[35]Imerva Corporation Pty Ltd v Kuna (Building and Property) [2015] VCAT 2058, [52].
Mr Robins accepted that if the questions of law regarding s 40 and estoppel were decided against Imerva there would be nothing left to be determined in the leave to appeal application.[36] This concession was properly made. Whilst there are several other questions of law in the plaintiff’s notice of appeal, their utility is contingent upon Imerva succeeding in either of these question of law. This conclusion applies equally to Imerva’s contention that the Tribunal failed to apply properly the principle in Jones v Dunkel in respect of the failure of the owners to call Mr Paritsi as a witness.[37] The inferences which Mr Robins contended should have been drawn as a consequence of the failure to call Mr Paritsi[38] were only relevant to Imerva’s contention that the owners were estopped from relying upon s 40(2) of the Act. Any adverse inferences which may have been drawn from the failure to call Mr Paritsi do not detract from the two bases upon which I have rejected the estoppel question of law. First, a plea of estoppel was not available to defeat the owners’ reliance upon s 40(2) of the Act. Second, even if estoppel was available, it was not unconscionable for the owners to rely upon that provision.
[36]Transcript of Proceedings, Imerva Corporation Pty Ltd v Kuna (Supreme Court of Victoria, S CI 2015 06503, McDonald J, 20 July 2016) T42 LL27 – T43 LL 4.
[37]‘Reply Submissions of the Plaintiff/Appellant’ dated 17 June 2016, [32].
[38]Transcript of Proceedings, Imerva Corporation Pty Ltd v Kuna (Supreme Court of Victoria, S CI 2015 06503, McDonald J, 20 July 2016) T17 LL7–15, T27 L26 – T28 L13.
The application for leave to appeal is dismissed. I shall hear the parties on the question of costs.
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Annexure A
Annexure B
3
11
0