Leon Holdings Pty Ltd v O'Donnell - [2009] VSC 430

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5570 of 2008

LEON HOLDINGS PTY LTD (ACN 004 338 612)	Appellant
v
WILLIAM O'DONNELL	First Respondent
And
VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL	Second Respondent

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JUDGE:	HABERSBERGER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 SEPTEMBER 2009
DATE OF JUDGMENT:	28 SEPTEMBER 2009
CASE MAY BE CITED AS:	LEON HOLDINGS PTY LTD v O’DONNELL
MEDIUM NEUTRAL CITATION:	[2009] VSC 430

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Administrative Law – Appeal from Victorian Civil and Administrative Tribunal – Errors of law – Difference between wrecker and demolisher – Need for registration – Variation of contract – Bias and procedural unfairness – Allowing hearsay evidence from one party but not the other – Prejudgment – Expressing concluded view before hearing all of the evidence – Not allowing party to give oral evidence and tender documents – Not allowing party to cross-examine other party – Building Act 1993, ss.3, 16, 25A, 106, 112, 169 and 170 – Building Regulations 2006, regs.304, 318, 1503 and Schedule 7 – Fair Trading Act 1999, ss.107A, 108, 109 - Victorian Civil and Administrative Tribunal Act 1998, ss.97, 98, 102 and 148.

Contract – Variation – No consideration where promise is to do no more than what promisor bound to do under pre-existing contract – Illusory consideration.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr CW Gilligan	FLA Partners
For the First Respondent	No appearance
For the Second Respondent	Mr MK Moshinsky SC and Mr C Young	Victorian Government Solicitor

HIS HONOUR:

Introduction

This is an appeal by Leon Holdings Pty Ltd (“Leon Holdings”) against an order made in a proceeding in the Civil Claims List of the Victorian Civil and Administrative Tribunal (“VCAT”) on 13 December 2007 in favour of the first respondent, William O’Donnell. Appeals from VCAT are governed by s.148 of the Victorian Civil and Administrative Tribunal Act 1998 (“the VCAT Act”). Leave to appeal was granted by Evans AsJ on 27 March 2009, in a proceeding commenced by originating motion on 8 April 2008. It appears that part of the reason for the lengthy delay in the granting of leave to appeal was the appellant’s reluctance to proceed until its allegations about the inaccuracy of the transcript of the hearing in the Tribunal (“the transcript”) had been fully investigated. I deal with this issue below.

Mr O’Donnell had applied to VCAT under the Fair Trading Act 1999 seeking “part payment” of $9,900. The boxes ticked in the application form in response to the question “What do you want VCAT to decide and order?” were “Payment of money” and “Review or vary a contract”. In his outline of the history of the dispute Mr O’Donnell wrote that he was:

Waiting for part payment for works done. Still waiting. Have posted and hand delivered invoice & still waiting for payment only have 2 day/3 left in finishing. Require money to continue works.

The order made by VCAT was as follows:

1.The…

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: [2009] VSC 430
Decision Date: 28 SEPTEMBER 2009

CaseChat Overview and Summary

In the matter of Leon Holdings Pty Ltd versus O'Donnell, the Supreme Court of Victoria was called upon to review a decision made by the Victorian Civil and Administrative Tribunal (VCAT). The dispute centered on the classification of a demolition contractor as either a wrecker or a demolisher, and the legal implications of this distinction under the Building Act 1993. The primary issues for determination were whether the VCAT decision contained errors of law, procedural unfairness, and bias, and if the evidence presented was handled appropriately.

The court examined whether there were grounds for finding errors of law in the VCAT's decision, including the interpretation of the Building Act and related regulations. The central legal issue was whether the respondent was required to be registered as a demolisher under the Building Act, and if the VCAT had correctly identified the respondent as such. Additionally, the court scrutinized the VCAT's handling of the contract variation, specifically the absence of consideration in the promise to perform additional work. The court also assessed the procedural fairness of the VCAT proceedings, including the allowance of hearsay evidence from one party but not the other, and the exclusion of certain evidence and cross-examination opportunities.

The court found that the VCAT had indeed erred in its interpretation of the Building Act, and that the respondent did not need to be registered as a demolisher. The court ruled that the VCAT's decision was affected by bias and procedural unfairness, as it allowed hearsay evidence from one party while disallowing similar evidence from the other, and it did not permit the respondent to give oral evidence and tender documents. Furthermore, the VCAT did not allow the respondent to cross-examine the other party, which was a significant procedural irregularity. The court also noted that the variation of the contract lacked consideration as the promise did not require the respondent to do more than what they were already obligated to do under the original contract. The VCAT's concluded view expressed before hearing all the evidence and the prejudgment were additional grounds for the court to find bias and procedural unfairness.

The court set aside the VCAT decision and remitted the matter back to VCAT for rehearing, ensuring that all parties had an equal opportunity to present their evidence and arguments, and that the tribunal adhered to the principles of natural justice. The court emphasized the importance of proper interpretation of statutory provisions and the necessity of procedural fairness in administrative law proceedings.

Orders