Knight v Mackay - [2008] VSC 602

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6466 of 2008

CHRISTOPHER KNIGHT	Plaintiff
v
SYLVIA BEATRIZ MACKAY, CRAIG JAMES MACKAY and THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL	Defendants

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JUDGE:	WILLIAMS J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 December 2008
DATE OF JUDGMENT:	22 December 2008
CASE MAY BE CITED AS:	Knight v Mackay and ors
MEDIUM NEUTRAL CITATION:	[2008] VSC 602

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APPEAL – Victorian Civil and Administrative Tribunal – Domestic Building dispute – Orders for damages and indemnity costs made in absence of builder - Refusal of application for review under s 120 Victorian Civil and Administrative Tribunal Act 1998 – Tribunal finding that no “reasonable excuse” for non attendance provided – Whether Tribunal erred in construction of term “reasonable excuse”.

ADMINSTRATIVE LAW – Relief in nature of certiorari – Whether denial of natural justice by failure to consider issue of notice and service – Discretionary considerations – Effect of unsuccessful application for review – Delay – Comparative hardship – Uncompleted domestic building works - Family living in shed on site

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Hanson	Waters Timms Pty Ltd
For the Defendants	Mr A Kirby	Moray & Agnew

TABLE OF CONTENTS

The proceeding before the Court.................................................................................................... 7

The appeal from the 6 May 2008 orders......................................................................................... 7

The amended notice of appeal.................................................................................................... 8

Conclusion..................................................................................................................................... 9

The application for review of the 14 March 2008 orders........................................................... 10

Should the time for bringing the application under O 56 be extended?............................ 10

Conclusion................................................................................................................................... 12

Should the relief be granted?.................................................................................................... 13

Conclusion................................................................................................................................... 15

HER HONOUR:

These proceedings arise in the context of a domestic building dispute between the plaintiff builder, Mr Knight, and the first and second defendants, Mrs and Mr Mackay. They were the parties to a written building contract dated 4 August 2005 under which Mr Knight agreed to construct a brick veneer dwelling on the Mackays’ land at 40 Finsbury Road, Devon Meadows, for a price of $297,000. Mr Knight’s address in the contract was stated to be “4 Lady Nelson Crt Corinella”.

The Mackays and their four children suffer from varying degrees of deafness. Mr Knight also suffers from a hearing difficulty. At the time of the building contract, Mr Mackay was conducting an earthworks business and Mr Knight’s evidence is that he was “handy” and agreed to carry out some of the building work himself in order to save money, with the result that they agreed a cheap “lockup stage if needed” price. Mrs Mackay receives a disability pension.

Mr Knight says that Mr Mackay told him that before he could proceed with the building, he needed to complete the sale of a property at Pearcedale. He said that he would buy a caravan for his family to live in on site whilst the house was being built. Between about January and October 2006, the Mackays and their four children did live in a caravan at the property. The children were then aged from…

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 Knight v Mackay

Details

AGLC: Knight v Mackay [2008] VSC 602
Case: [2008] VSC 602
Decision Date: 22 December 2008

CaseChat Overview and Summary

In the case of Knight v Mackay, the respondent, Mr Mackay, sought damages and indemnity costs from the appellant, Mr Knight, for incomplete domestic building works. The dispute originated in the Victorian Civil and Administrative Tribunal (VCAT) and proceeded to the Court of Appeal. The primary issue before the court was whether VCAT erred in its interpretation of the term “reasonable excuse” when Mr Knight failed to appear at a hearing. The appellant argued that VCAT should have granted a review under section 120 of the Victorian Civil and Administrative Tribunal Act 1998 due to a lack of notice and service of the application for review.

The Court of Appeal held that VCAT was not required to consider whether it had jurisdiction to grant a review. The court found that VCAT had properly exercised its discretion in declining to grant a review, considering factors such as the delay in lodging the application for review and the comparative hardship caused to both parties. The court noted that Mr Knight had ample time to prepare for the hearing and had not provided a satisfactory explanation for his absence. The court also highlighted that Mr Knight had the opportunity to present his case but chose not to do so. The appeal was dismissed, and the orders made by VCAT were upheld.

Orders