Lockwood Dell Pty Ltd v Valastro
[2004] VSC 197
•4 June 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 8595 of 2003
| LOCKWOOD DELL PTY LTD (ACN 006 456 935) | Appellant |
| v | |
| DOMINIC VALASTRO and ROSA VALASTRO | Respondents |
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JUDGE: | Balmford J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 May 2004 | |
DATE OF JUDGMENT: | 4 June 2004 | |
CASE MAY BE CITED AS: | Lockwood Dell Pty Ltd v Valastro | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 197 | |
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Appeal – Victorian Civil and Administrative Tribunal – property – claim by appellant that purchased house was defective – whether Tribunal erred in failing to award compensation in respect of certain damage – whether evidence supported respondent’s submission that property was sold as incomplete – findings open to Tribunal on the evidence – appeal of Tribunal’s orders dismissed.
Victorian Civil and Administrative Tribunal Act 1998 s 148
Building Act 1993 s 137C
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr C Moyle | James Logan & Associates |
| For the Respondents | Mr R Lawson | Frank J Horvat & Co Pty. |
HER HONOUR:
Introduction
This is an appeal on a question of law under section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (“the VCAT Act”) against two orders made by the Victorian Civil and Administrative Tribunal, constituted by Deputy President Cremean (“the Tribunal”) on 2 October 2003 and 7 November 2003 in its Planning List.
The order of 2 October 2003 reads:
1.I order the Respondents to pay the Applicant the sum of $1,253.00.
2.Direct that this matter be listed at a directions hearing before me on a convenient date. Allow one day.
The order of 7 November 2003 related to costs and to the retention of tapes and exhibits. No submissions were made by either party on the appeal from this order.
On 19 December 2003 Master Wheeler granted leave to appeal in respect of the following question of law:
On the whole of the evidence did the Tribunal err in failing to award the applicant compensation in respect of:
(i)electrical works;
(ii)the rear balcony; or
(iii)holes in the brickwork?
The Master also ordered that any appeal by the applicant against the order be returnable before the trial Judge. A notice of appeal was lodged, one day out of time. After hearing argument, I made orders extending the time for the filing of the notice of appeal and granting leave to appeal against the decision of the Tribunal in respect of the following question of law:
On the whole of the evidence did the Tribunal err in failing to award the applicant compensation in respect of:
(i)electrical works;
(ii)the rear balcony;
(iii)holes in the brickwork;
(iv)dampness to sub-floor; or
(v)failure to provide grading during the course of construction?
In Spurling v Development Underwriting (Vic) Pty Ltd[1] Stephen J said:
In the case of decisions of magistrates the position in Victoria is well established by a line of decisions culminating in Taylor v Armour & Co. Pty. Ltd., [1962] VR 346, in which the Full Court of this State held that in the case of any question of fact the Court should treat the matter as an appeal from the verdict of a jury and should not make up its own mind upon the evidence but rather confine itself to seeing whether there was evidence upon which the magistrate might, as a reasonable man, come to the conclusion to which he did come. In saying this the Full Court stated that it was following the view of Herring, CJ, in Young v Paddle Bros. Pty. Ltd., [1956] VLR 38; [1956] ALR 301. The Chief Justice, in that case, adopted as the test whether "on any reasonable view of the evidence that decision can be supported"; a party aggrieved can thus only succeed if a decision contrary to the view of the magistrate is "the only possible decision that the evidence on any reasonable view can support" (see at VLR p. 41).
[1][1973] VR 1 at 11
In S v Crimes Compensation Tribunal[2] Phillips JA said, speaking of passages similar to that cited above from Spurling:
The word “reasonably” is used in this context, I suggest, just to emphasise that, when judging what was open and what was not open below, we are speaking of rational tribunals acting according to law, not irrational ones acting arbitrarily. The danger of using the word “reasonably” lies in its being taken to suggest that a finding of fact may be overturned, on an appeal which is limited to a question of law, simply because that finding is regarded as “unreasonable”. That is not the law as I understand it, at least in Australia. A finding of fact will be overturned on an appeal on a question of law only if that finding was not open.
[2][1998] 1 VR 83 at 91
Those two authorities set out the basis on which the Master’s question can properly be regarded as a question of law and thus as open on this appeal under section 148 of the VCAT Act.
The respondents, as owner-builders, built a two-story dwelling on land known as 25 Dorset Drive Greenvale, which they sold to the appellant for $362,500 by a contract of sale dated 24 August 2001. Settlement took place on 5 November 2001. The appellant brought proceedings in the Tribunal pursuant to section 137C of the Building Act 1993 claiming damages of approximately $63,000 being the cost of rectification of defects, including the five items enumerated in the Master’s order as amended. The hearing occupied 6 days.
The finding of the Tribunal
The principal finding of the Tribunal was that the appellant knowingly purchased an incomplete house, not a house which was defective. The Tribunal ordered payment of compensation in the sum of $1253, made up of $253 for a gas leak and the installation of an insinkerator, being two items which the respondents conceded, and a further item amounting to $1,000 in respect of defective workmanship concerning brick sills. Otherwise the Tribunal found the claim to be not maintainable, on the ground that the house was incomplete and that this was, or should have been, known to the applicant at the time of entering into the contract of sale.
That was certainly a finding which was open to the Tribunal on the evidence. The Tribunal referred in its decision to the evidence of Mr Biner, the agent who acted on the sale, that the signboard advertising the property for sale read “simply add finishing touches and make the dream come true” and to the clear indication in the evidence of Mr Biner that the property would have fetched considerably more had it been in a finished state. A report from Archicentre dated 6 August 2001 listed 23 items under the heading “incomplete work” and a copy of that report was attached to the contract of sale and must be taken to have been known to the appellant.
The Master’s order
As to the five items in the Master’s order as amended, there is evidence in respect of each from which the Tribunal could find either that that item was a matter of incomplete construction rather than a defect, or otherwise that no compensation was payable in respect of that item.
Electrical works
The evidence of Mr Carlson, a director of the appellant, was that when he inspected the property on 29 or 30 October, and when the purchase was completed on 5 November, it was apparent to him that the electrical works for the house were not completed. That is evidence on which the Tribunal could rely.
Rear balcony
Mr Lawson, for the respondents, submitted, and I accept, that there was no specific claim made by the appellant before the Tribunal in respect of the rear balcony. The only reference to balconies in the Particulars of Loss and Damage forming part of the Points of Claim is in item (f) which reads “sealing and painting external lining, completion of external steps including balustrading leading out of laundry, sealing of underside of balconies”. That item is expressed to relate to matters requiring completion, rather than the repair of defects, and it was open to the Tribunal to find that that was the nature of the claim in respect of the rear balcony.
Holes in the brickwork
The evidence of Mr Hegarty was that the holes in question had been made for rods to be put through the wall to support the scaffolding on which the bricklayers worked when the house was being constructed. He did not know why the scaffolding had been removed. He said that the approved plans for the building required the outside of the brickwork to be covered with an applied finish, and to apply that finish it would be necessary to work from a scaffold. On that evidence the Tribunal could find that the holes were necessary to enable re-erection of scaffolding needed for the completion of the incomplete house in accordance with the approved plans.
Dampness to sub-floor
The evidence of Mr Atchison, an engineering and building consultant, and Mr Trabsky an engineer was that an agricultural pipe installed at the base of the sub-floor was too high and would not take water away. However, Mr Moyle, for the appellant, conceded that Mr Hegarty’s opinion had been that the agricultural pipe was not too high and that is evidence on which the Tribunal could have found that there was no defect in that context entitling the appellant to compensation.
Grading
Mr Moyle submitted, if I understood him correctly, that it was common ground that proper grading work had not been carried out before the sale, and as a result water had collected in the sub-floor. He cited the evidence of Mr Atchison and Mr Trabsky (both engineers called for the appellant) and Mr Hegarty (called for the respondent) to that effect. However, that again was a matter as to which it was open to the Tribunal to find that it indicated that the house was incomplete, rather than defective, at the time of the sale. The submission that damage from dampness caused by the lack of grading should be compensated was, as Mr Moyle conceded, incapable of being dealt with on this appeal in the absence of relevant evidence.
Conclusion
For the reasons given, the answer to the Master’s question must be No. The appeal will be dismissed in so far as it relates to the Tribunal’s orders of 2 October 2003. As I have said, no submissions were put before me in respect of the orders of 7 November 2003 and accordingly the appeal will also be dismissed in so far as it relates to those orders. Counsel may wish to make submissions as to the costs of the present matter.
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