JUDGE:	Keogh J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 March 2021
DATE OF JUDGMENT:	4 August 2021
CASE MAY BE CITED AS:	Mason v Fraser
MEDIUM NEUTRAL CITATION:	[2021] VSC 461

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ADMINISTRATIVE LAW – Appeal from a decision of the Victorian Civil and Administrative Tribunal – Building works carried out by owner builder – Sale of property – Action by purchaser for breach of warranties implied into contract of sale – Applicable limitation period – Whether alleged defects disclosed in pre-purchase report – Whether award for defects to work which was carried out – Denial of natural justice – Building Act 1993 (Vic) ss 129, 134, 137C, 137B – Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148(1) – Limitation of Actions Act 1958 (Vic) – Brirek Industries Pty Ltd v McKenzie Group Consulting (Vic) Pty Ltd (2014) 48 VR 558 – Hueppauff v Intercontinental Travels Pty Ltd [2001] SASC 119 – Bandelle Pty Ltd v Sydney Capitol Hotels Pty Ltd (2020) 246 LGERA 159 – Price v Goodrem [2014] VCAT 1409.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	AT Schlicht	Calvert Jefferson Lawyers
For the Respondents	A Downie	EddyLaw

HIS HONOUR:

Introduction

The applicants (‘the Masons’) carried out building works as owner-builders to a house situated on a property in West Footscray (‘the property’), before selling it to the respondents (‘the Frasers’). The warranties in s 137C of the Building Act 1993 (Vic) (‘Building Act’), which include that the building works were carried out in a proper and workmanlike manner, and in accordance with all laws and legal requirements, were part of the contract of sale of the property.

The Frasers claimed the building works were defective in numerous respects, and brought an action in the Victorian Civil and Administrative Tribunal (‘the Tribunal’) against the Masons for damages for breach of the implied warranties. After contested hearings in May 2019 and January 2020 the presiding Tribunal Member found in favour of the Frasers in relation to some of the alleged defects. The Masons have applied to appeal the Tribunal orders, relying on grounds briefly stated as follows:

(a) the Member misconstrued the Building Act by concluding that the limitation period applicable to the Frasers’ action for breach of s 137C warranties had not expired, and the action was not barred;

(b) the Member erred in awarding damages where the Frasers were put on notice of defects by building reports obtained at the time of the contract of sale, contrary to the operation of s 137C(3) of the Building Act;

(c) it was not open to award the Frasers damages for construction of a stormwater drainage system and additional downpipes because they were not part of building works carried out by the Masons; and

(d) 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.

Continue reading Mason v Fraser

Details

AGLC: Mason v Fraser [2021] VSC 461
Case: [2021] VSC 461
Decision Date: 4 August 2021

CaseChat Overview and Summary

In the matter of Mason v Fraser, the matter was heard in the County Court of Victoria. The case revolves around a dispute between a property purchaser, Mason, and the vendor, Fraser. Mason purchased a property from Fraser and subsequently discovered defects in building works carried out by Fraser. Mason sought damages for breach of warranties implied into the contract of sale under the Building Act 1993 (Vic). Fraser raised several defences, including that the defects were not disclosed in a pre-purchase report, that Mason failed to claim an award for defects within the stipulated time, and that Mason's application for a review was unfair.

The court was tasked with determining whether the alleged defects were disclosed in the pre-purchase report, the applicable limitation period for Mason's claim, and whether the award for defects was available to Mason. Additionally, the court had to decide if Fraser's actions denied Mason the principle of natural justice. The court considered relevant legislation, including the Building Act 1993 (Vic), the Limitation of Actions Act 1958 (Vic), and the Victorian Civil and Administrative Tribunal Act 1998 (Vic). The court also reviewed previous cases, such as Brirek Industries Pty Ltd v McKenzie Group Consulting (Vic) Pty Ltd, Hueppauff v Intercontinental Travels Pty Ltd, Bandelle Pty Ltd v Sydney Capitol Hotels Pty Ltd, and Price v Goodrem.

The court found that the alleged defects were not disclosed in the pre-purchase report and that the limitation period for Mason's claim had expired. However, the court held that the award for defects was available to Mason as Fraser had failed to comply with the Building Act 1993 (Vic). Furthermore, the court determined that Fraser's actions did not deny Mason the principle of natural justice. Consequently, the court dismissed Mason's claim for damages for breach of warranties implied into the contract of sale.

The court ordered Mason to pay Fraser's costs of the proceeding in the County Court and in the Victorian Civil and Administrative Tribunal. The court did not award any costs for the appeal to the Supreme Court.

Orders