Mason v Fraser - [2020] VSC 374

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 01107

JESSICA MASON AND DARREN MASON	Applicants
v
CASSANDRA FRASER AND DARREN PETER FRASER	Respondents

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JUDGE:	Keith JR
WHERE HELD:	Melbourne
DATE OF HEARING:	1 April 2020
DATE OF JUDGMENT:	1 April 2020
CASE MAY BE CITED AS:	Mason v Fraser
MEDIUM NEUTRAL CITATION:	[2020] VSC 374

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PRACTICE AND PROCEDURE – Appeal from decision of VCAT - Applicants seek stay of orders, pending determination of Supreme Court matter - Leave to appeal only granted if appeal has real prospect of success - Applicants assert they are still paying interest, therefore the respondents are secure – Applicants assert if they pay now, and are later successful on appeal, the respondents may not be able to pay - Respondents offered to hold funds in an account until matter resolved – Respondents further undertook not to commence bankruptcy proceedings until matter is resolved – Court not satisfied the respondents lacks the ability to repay damages were appeal to be successful - Offer of respondents to not commence bankruptcy does not relieve the Court of the need to balance the competing positions of the parties - COVID-19 has not prevented property transactions taking place, or financial institutions providing financial facilities - Applicants have not demonstrated the existence of special or exceptional circumstances – Applicants also need to establish an arguable ground of appeal - Application for stay ought not to be a forum to consider the substantive merits of the application for leave, or the appeal – Court satisfied the applicants have established an arguable ground of appeal - Appeal unlikely to be rendered nugatory - Application for stay dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr AT Schlicht	Michelle Calvert-McCredie
The Respondents in person

JUDICIAL REGISTRAR:

On 26 February 2020, the applicants, Jessica Mason and Darren Mason (‘the Masons’) filed in this Court a Notice of Appeal seeking leave to appeal pursuant to s 148 of the Victorian Civil and Administrative Act 1988 ( ‘VCAT Act’). The application is for leave to appeal from two orders of VCAT, the first dated 18 July 2019 and the second dated 28 January 2020. The orders were made in proceedings arising under the Building Act 1993.

The respondents, Cassandra Fraser and Darren Peter Fraser (‘the Frasers’) had purchased a property from the Masons in 2013. The property is a two-story house in Robbs Road West Footscray (‘the house’). Prior to 2013 the house had been renovated by the Masons. The VCAT proceedings concerned defects in the house and a claim for damages for breach of warranties implied into the contract of sale by s 137C of the Building Act 1993.

The order of VCAT dated 18 July 2019 required the Masons to pay the sum of $96,700 to the Frasers. The total amount claimed by the Frasers was in excess of $200,000.

When the VCAT decision and order were handed…

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 [2020] VSC 374
Case: [2020] VSC 374
Decision Date: 1 April 2020

CaseChat Overview and Summary

In the matter of Mason v Fraser, the applicants sought a stay of orders made by the Victorian Civil and Administrative Tribunal (VCAT) pending the determination of an appeal to the Supreme Court. The applicants argued that they continued to incur interest on the judgment debt and that if they were to pay the judgment amount while the appeal was pending, the respondents might be unable to repay them should the appeal be successful. The respondents offered to deposit the funds into an interest-bearing account and to refrain from initiating bankruptcy proceedings until the matter was resolved. The Supreme Court was tasked with determining whether the applicants had demonstrated the existence of special or exceptional circumstances to warrant a stay of the VCAT orders.

The court examined whether the applicants had established an arguable ground of appeal and whether there were special or exceptional circumstances that warranted a stay of the VCAT orders. The applicants argued that the ongoing interest payments and the potential inability of the respondents to repay them if the appeal were successful constituted exceptional circumstances. The court noted that the respondents had offered to hold the funds in an interest-bearing account, which alleviated some of the applicants' concerns about ongoing interest payments. However, the court found that the applicants had not demonstrated exceptional circumstances, as the ongoing interest payments did not necessarily render the appeal nugatory, nor did the offer to hold funds in an account provide a definitive resolution to the applicants' concerns.

The Supreme Court held that while the applicants had established an arguable ground of appeal, they had not demonstrated the existence of special or exceptional circumstances that would warrant a stay of the VCAT orders. The court emphasised that the application for a stay should not serve as a forum to consider the substantive merits of the appeal. Consequently, the court dismissed the application for a stay of the VCAT orders. The applicants were required to continue making interest payments, and the respondents were not precluded from pursuing bankruptcy proceedings if the applicants failed to satisfy the judgment debt.

The court's final orders were that the application for a stay of the VCAT orders was dismissed. The applicants were to continue making interest payments on the judgment debt, and the respondents were not stayed from pursuing bankruptcy proceedings should the applicants fail to satisfy the judgment debt. The appeal to the Supreme Court was to proceed without a stay of the VCAT orders.

Orders