Imerva Corporation Pty Ltd v Kuna - [2016] VSC 461

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]…

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: [2016] VSC 461
Decision Date: 18 August 2016

CaseChat Overview and Summary

In the case of Imerva Corporation Pty Ltd v Kuna, the Court was tasked with determining whether the plaintiff, Imerva Corporation, had the right to appeal a decision made by the Victorian Civil and Administrative Tribunal (VCAT) regarding a dispute over progress payments under a domestic building contract. The defendants, Kuna, argued that the progress payments regime prescribed by the Domestic Building Contracts Act 1995 did not apply to their contract and sought to enforce the statutory regime. The central issue before the Court was whether the Tribunal's decision contained sufficient doubt to warrant the grant of leave to appeal.

The Court examined the nature of the contractual agreement between the parties, the applicability of the statutory regime, and the potential for an estoppel preventing the defendants from insisting on compliance with the statutory regime. The Court concluded that the Tribunal's findings were well-reasoned and supported by evidence, and that the decision did not contain sufficient doubt to merit an appeal. The Court held that the defendants were not estopped from enforcing the statutory regime, and that the plaintiff's arguments did not present a substantial question of law warranting appellate jurisdiction.

In light of the above, the Court dismissed the plaintiff's application for leave to appeal, affirming the Tribunal's decision. The Court found that the statutory regime for progress payments was applicable to the defendants' domestic building contract, and that the defendants were not estopped from enforcing the statutory requirements. The Court's decision underscores the importance of clear contractual terms and the need for parties to adhere to the statutory framework governing domestic building contracts in Victoria.

Orders