Lockwood Dell Pty Ltd v Valastro - [2004] VSC 197

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…

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: [2004] VSC 197
Decision Date: 4 June 2004

CaseChat Overview and Summary

Lockwood Dell Pty Ltd sought to appeal a decision of the Victorian Civil and Administrative Tribunal (VCAT) in which it was found that the house it purchased from Valastro was defective, but that VCAT had not awarded compensation for certain damage. Lockwood Dell claimed that VCAT had erred in failing to award compensation for damage to the property, and in accepting that the property was sold as incomplete. The dispute centred on whether the evidence presented supported VCAT’s findings and whether it had properly applied the law.

The central issues for the court were whether VCAT erred in its findings regarding the compensation for the damage and the status of the property at the time of sale. Lockwood Dell argued that the evidence demonstrated that the property was not sold in a complete condition, and that VCAT should have awarded compensation for the damage. Valastro countered that the property was sold as incomplete, and that VCAT's findings were supported by the evidence. The court had to determine if the evidence was such that VCAT could reasonably make the findings it did, and whether there was any error in the application of the law.

The court examined the evidence and the reasoning of VCAT, concluding that the Tribunal's findings were open to it on the evidence. The court found that there was no error in VCAT's assessment of the evidence, nor in its application of the relevant statutes. The court held that VCAT had properly considered the submissions and evidence before it and had not erred in its findings. Consequently, the appeal was dismissed.

No further orders were made by the court beyond dismissing the appeal. The decision confirmed VCAT's authority to make findings based on the evidence presented, and upheld its decision not to award compensation for the damage in question.

Orders