SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2018 0055
| PETER MANN | First applicant |
| and | |
| ANGELA MANN | Second applicant |
| v | |
| PATERSON CONSTRUCTIONS PTY LTD (ACN 135 579 770) | Respondent |
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| JUDGES: | KYROU, McLEISH and HARGRAVE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 19 November 2018 |
| DATE OF JUDGMENT: | 22 November 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 313 |
| JUDGMENT APPEALED FROM: | Mann v Paterson Constructions Pty Ltd [2018] VSC 119 (Cavanough J) |
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PRACTICE AND PROCEDURE – Stay – Order of Victorian Civil and Administrative Tribunal requiring applicants to pay to respondent amount calculated on quantum meruit basis – Appeal to Trial Division dismissed – Further appeal to Court of Appeal dismissed – Application made to High Court for special leave to appeal – Application for stay pending hearing and determination of special leave application and any resultant appeal – Application granted on terms including that applicants pay $250,000 to respondent within 28 days.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicants | Mr T J Margetts QC with Mr A Roe | Telford Story & Associates |
| For the Respondent | Mr A J Laird | Kalus Kenny Intelex |
KYROU JA
McLEISH JA
HARGRAVE JA:
Introduction and summary
On 12 September 2018, this Court published its reasons for dismissing the applicants’ appeal against an order of a judge of the Trial Division which dismissed an appeal from an order made by the Victorian Civil and Administrative Tribunal (‘VCAT’).[1] On the same day, this Court made an order dismissing the appeal from the judge’s order and requiring the applicants to pay the respondent’s costs of the appeal.
[1]Mann v Paterson Constructions Pty Ltd [2018] VSCA 231 (‘Reasons’).
The dispute between the parties arose out of a major domestic building contract pursuant to which the respondent agreed to construct two double-storey townhouses on land owned by the applicants. The townhouses are known as units 1 and 2, 6 Langtree Court, Blackburn. The applicants live with their son in unit 2 and rent out unit 1.
After a lengthy hearing, VCAT found that: the applicants had repudiated the contract; the respondent had determined the contract by accepting the applicants’ repudiation; the respondent was entitled to relief on a quantum meruit basis; and that the relief should be quantified at $660,526.41, representing the value of the work performed by the respondent, less the sums already paid by the applicants and the cost of rectification of defects.[2] Included in that amount was the value of variations to the works that were orally requested by the applicants and performed by the respondent.
[2]Paterson Constructions Pty Ltd v Mann [2016] VCAT 2100 (‘VCAT decision’).
In reaching its decision, VCAT applied this Court’s decision in Sopov v Kane Constructions Pty Ltd (No 2).[3] Sopov held that the remedy of quantum meruit is available to a builder who accepts an owner’s repudiation of a building contract, and set out principles for quantifying the amount payable on a quantum meruit basis. VCAT also proceeded on the basis that s 38 of the
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- AGLC
- Mann v Paterson Constructions Pty Ltd [2018] VSCA 313
- Case
- [2018] VSCA 313
- Decision Date
CaseChat Overview and Summary
The legal issue before the Supreme Court was whether to grant the stay application. The Court considered the relevant factors, including the merits of the case, the likelihood of success on appeal, the effect of the VCAT order on the respondent, and the interests of justice. The Court noted that the VCAT order was significant and would have a substantial impact on the respondent. The Court also considered that the applicant had a reasonable prospect of success on appeal, and that the interests of justice favoured granting the stay. The Court concluded that it was appropriate to grant the stay application.
In granting the stay, the Court made an order that the stay would be conditional on the applicants paying $250,000 to the respondent within 28 days. The Court noted that this amount represented a substantial proportion of the VCAT order, and was intended to mitigate the effect of the stay on the respondent. The Court considered that this was a reasonable and proportionate response to the circumstances of the case.
No further orders were made by the Court.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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