JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 August 2021
DATE OF JUDGMENT:	3 September 2021
CASE MAY BE CITED AS:	Lucic v Henry
MEDIUM NEUTRAL CITATION:	[2021] VSC 548

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ADMINISTRATIVE LAW – Appeal from Victorian Civil and Administrative Tribunal – Domestic building disputes – First proceeding between owner and builder resolved by terms of settlement – Mutual release – Owner commenced second proceeding for defective work – Tribunal found claimed defects not covered by release given in terms of settlement of first proceeding – Leave to appeal – Where party seeks to raise a point on appeal not argued below – Whether Tribunal misconstrued release – Whether Tribunal failed to consider that owners ought to have known of claimed defects when terms of settlement signed – Adequacy of reasons – Domestic Building Contracts Act 1995 (Vic), ss 8, 10 – Victorian Civil and Administrative Tribunal Act 1998 (Vic), ss 117, 148.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr JAF Twigg QC	Ferdinand Zito & Associates
For the Respondents	Mr MT Flynn QC with Mr TL Bevan	David Joseph & Co

HER HONOUR:

In October 2012, Vinko Lucic entered into a domestic building contract with Sebastian Henry, and subsequently built a three-storey house in St Kilda for Mr Henry and Pippa Joseph. In 2014, Mr Lucic and his company Ontrak Homes Pty Ltd brought a proceeding in the Victorian Civil and Administrative Tribunal, seeking to recover money they claimed was owing for work done on the house. Mr Henry counterclaimed for damages in respect of defective work, having already terminated the contract.

The first Tribunal proceeding settled on 30 October 2014, with Mr Henry agreeing to pay Mr Lucic and Ontrak a total of $40,000. The terms of settlement, signed by Mr Henry and Mr Lucic on 30 October 2014, included a mutual release.

In about April 2015, Mr Henry and Ms Joseph noticed water leaking into the first floor living room, apparently from the second floor balcony above. Ms Joseph contacted Mr Lucic, who did some work on the balcony in an attempt to fix the leak. His efforts were unsuccessful, and the leaking continued. Mr Henry and Ms Joseph also identified a water leak into the kitchen from the first floor balcony, and a large leak from the skylight above the lightwell.

Mr Henry and Ms Joseph brought a second Tribunal proceeding in October 2019, claiming damages in respect of four items of defective work (the claimed defects), including the three water leaks. Mr Lucic’s response was that the claimed defects did not exist, or alternatively they were covered by the terms of settlement in the first Tribunal proceeding.

The Tribunal, constituted by Senior Member Walker, heard the second Tribunal proceeding on 6 and 7 August 2020. Both…

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 Lucic v Henry

Details

AGLC: Lucic v Henry [2021] VSC 549
Case: [2021] VSC 548
Decision Date: 3 September 2021

CaseChat Overview and Summary

Lucic v Henry involved the owners, the Lucics, and the builder, Mr Henry, in a dispute over defective work done on their property. The matter was heard by the Supreme Court of Victoria, following an appeal from the Victorian Civil and Administrative Tribunal (VCAT). The owners had previously entered into a settlement agreement with the builder, which included a mutual release, resolving the initial dispute. Subsequently, the owners initiated another proceeding against the builder for alleged defects not covered by the release. VCAT determined that the claimed defects were not included in the release and dismissed the owners' claims. The owners sought leave to appeal, arguing that VCAT misconstrued the release, failed to consider that the owners should have known of the defects at the time the settlement was signed, and provided inadequate reasons.

The central legal issues before the court were whether the Tribunal misconstrued the mutual release, whether the Tribunal failed to consider that the owners should have known about the defects at the time the settlement was signed, and whether the reasons provided by VCAT were adequate. The owners contended that the Tribunal misinterpreted the release by not considering the broader context and purpose of the settlement. They also argued that VCAT did not adequately consider that the owners should have been aware of the defects when they signed the terms of settlement. Furthermore, the owners claimed that VCAT's reasons were insufficient, as they did not address all the arguments and evidence presented.

The court held that the appeal should be dismissed. The court found that the Tribunal correctly interpreted the mutual release and appropriately considered the context and purpose of the settlement. The court also determined that VCAT was not required to consider whether the owners should have known about the defects at the time the settlement was signed, as this was not a ground of appeal before the Tribunal. Lastly, the court found that VCAT provided adequate reasons, as the decision addressed the key issues and provided sufficient justification for the conclusions reached. Consequently, the owners' appeal was dismissed, and the decision of VCAT was upheld.

The final orders of the court were that the appeal be dismissed, with the owners to pay the builder's costs of the appeal. The court found that the Tribunal's decision was correct and that the owners' arguments on appeal did not warrant a different outcome. The owners were also ordered to pay the builder's costs of the appeal, reflecting the court's view that the appeal was without merit.

Orders