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JG King Pty Ltd v Patel

JG King Pty Ltd v Patel

Case [2014] VSC 58 28 February 2014

Jurisdiction

Natural Justice & Procedural Fairness

Statutory Interpretation

Administrative Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2013 4192

J G KING PTY LTD	Applicant
v
YOGENDRAKUMAR BIPINCHANDRA PATEL and NIHARIKABEN PATEL	Respondents

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JUDGE:	KYROU J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 February 2014
DATE OF JUDGMENT:	28 February 2014
CASE MAY BE CITED AS:	JG King Pty Ltd v Patel
MEDIUM NEUTRAL CITATION: JUDGMENT APPEALED FROM:	[2014] VSC 58 Patel v J G King Pty Ltd [2013] VCAT 1272 (Senior Member M Lothian)

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ADMINISTRATIVE LAW — Application for leave to appeal from a decision of the Victorian Civil and Administrative Tribunal — Whether the Tribunal erred in law in finding that a builder was not entitled to charge for rocks excavated and removed from the building site for a new home in excess of the volume of rocks allowed under a major domestic building contract — Whether the clauses in the contract providing for the excess charge complied with provisions of the contract and the Domestic Building Contracts Act 1995 dealing with variations and escalations in the cost of footings — Whether the Tribunal denied the builder natural justice by relying on a statutory provision that was not pleaded by the owners — Whether the Tribunal erred in relation to the method of calculating the volume of rock — Leave to appeal granted — Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr K C Oliver	Champions Lawyers
For the Respondents	Ms S Kirton with Mr T J Guthridge	Brian Williams

TABLE OF CONTENTS

Introduction and summary............................................................................................................... 1

Execution of Contract and dispute over cost of excavating and removing rock.................... 3

VCAT proceeding.............................................................................................................................. 6

Overarching provisions of the Act................................................................................................ 12

Legal principles for interpreting contracts.................................................................................. 16

Overview of proposed grounds of appeal................................................................................... 17

Did VCAT err in finding Builder’s Claim was not payable under cl 14 of Contract?........ 18

Provisions of Act and Contract dealing with charges for excavations and footings........ 18
VCAT’s decision that the Builder’s Claim was not payable under cl 14 of Contract....... 19
Grounds of appeal relating to VCAT’s decision on the cl 14 issue..................................... 24
Parties’ submissions on the cl 14 issue.................................................................................... 25
Decision on the cl 14 issue......................................................................................................... 26

Did VCAT err in finding that the Builder’s Claim was a variation?...................................... 29

Provisions of Act and Contract dealing with variations to plans or specifications.......... 30
VCAT’s decision that the Claim was a variation.................................................................... 32
Grounds of appeal relating to VCAT’s decision on the variation issue............................. 32
Parties’ submissions on the variation issue............................................................................ 33
Decision on the variation issue................................................................................................. 35

Did VCAT err in deciding how the volume of rock is to be measured?............................... 40

VCAT’s decision that the excavated rock is to be measured in situ................................... 40
Grounds of appeal relating to VCAT’s decision on the measurement issue.................... 42
Parties’ submissions on the measurement issue.................................................................... 43
Decision on the measurement issue......................................................................................... 44

Conclusion: Grant leave to appeal and allow the appeal......................................................... 49

Proposed order.................................................................................................................................. 49

HIS…

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 JG King Pty Ltd v Patel

Details

AGLC: JG King Pty Ltd v Patel [2014] VSC 58
Case: [2014] VSC 58
Decision Date: 28 February 2014

CaseChat Overview and Summary

JG King Pty Ltd sought leave to appeal from a decision of the Victorian Civil and Administrative Tribunal, which found that the builder was not entitled to charge for rocks excavated and removed from the building site in excess of the volume of rocks allowed under a major domestic building contract. The owners had alleged that the builder had removed and charged for an excessive amount of rock. The Tribunal held that the builder was only entitled to charge for the amount of rock allowed under the contract, and not for any excess rock removed. The builder argued that the contract clauses provided for the excess charge, and that the Tribunal had denied it natural justice by relying on a statutory provision that was not pleaded by the owners. The builder also argued that the Tribunal erred in relation to the method of calculating the volume of rock.

The court was required to decide whether the Tribunal erred in law in finding that the builder was not entitled to charge for the excess rock, whether the contract clauses provided for the excess charge, whether the Tribunal denied the builder natural justice, and whether the Tribunal erred in relation to the method of calculating the volume of rock. The court held that the Tribunal had erred in law in finding that the builder was not entitled to charge for the excess rock. The court found that the contract clauses provided for the excess charge and that the Tribunal had denied the builder natural justice by relying on a statutory provision that was not pleaded by the owners. The court also found that the Tribunal had erred in relation to the method of calculating the volume of rock.

The court granted leave to appeal and allowed the appeal. The court held that the builder was entitled to charge for the excess rock removed from the building site, and that the contract clauses provided for the excess charge. The court also held that the Tribunal had denied the builder natural justice by relying on a statutory provision that was not pleaded by the owners, and that the Tribunal had erred in relation to the method of calculating the volume of rock. The court remitted the matter to the Tribunal for reconsideration in light of the court's findings.

The final orders of the court were that leave to appeal was granted, the appeal was allowed, and the matter was remitted to the Tribunal for reconsideration in light of the court's findings. The builder was entitled to charge for the excess rock removed from the building site, and the contract clauses provided for the excess charge. The Tribunal had denied the builder natural justice and had erred in relation to the method of calculating the volume of rock. The matter was to be reconsidered by the Tribunal in light of the court's findings.

Orders