McAskell & Anor v Cavendish Properties Ltd & Ors (No 2) - [2008] VSC 563

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

BUILDING CASES LIST

No. 6116 of 2005

BRIAN JOHN McASKELL & ANOR	Plaintiffs
V
CAVENDISH PROPERTIES LIMITED & ORS	Defendants
- and -
MITFORD ENGINEERING (AUST) PTY LTD & ORS	Third Parties

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JUDGE:	HANSEN J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 November 2008
DATE OF JUDGMENT:	12 December 2008
CASE MAY BE CITED AS:	McAskell v Cavendish Properties Limited & Ors (No 2)
MEDIUM NEUTRAL CITATION:	[2008] VSC 563

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PRACTICE AND PROCEDURE – Trial of preliminary questions – Whether plaintiffs’ claim against sixth and seventh defendants a “building action” – Whether claim statute barred – Whether “building work” includes “site preparation works” – Whether works “for” or “in connection with” construction of a building – Building Act 1993 (Vic), s 3(1), s 129, s 134.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr G H Golvan QC and Mr M P Barrett	John R Sharkie
For the Sixth and Seventh Defendants	Mr J A F Twigg	Vadarlis & Associates
No appearance by or on behalf of any other Defendant, Third or Fourth Party

HIS HONOUR:

Introduction

This is the trial of two preliminary questions before the trial of the proceeding.

In the proceeding, the plaintiffs, who are the joint owners of a townhouse dwelling at Patterson Lakes, constructed in 1997 and purchased by them in 1999, allege that in consequence of the defendants’ negligence and breaches of statutory warranties, the foundations of their dwelling have subsided, the walls have cracked, and the dwelling has deteriorated to such an extent that it requires demolition and reconstruction, at an estimated cost of $1,232,880.

The plaintiffs and the first to fifth defendants have finalised settlement of all claims between them, and those defendants remain parties to the proceeding “solely for the purposes of any apportionment of the plaintiffs’ claims against the other defendants pursuant to any applicable proportionate liability regime”[1]. Meanwhile, Timelink Pacific Pty Ltd (“Timelink”) and Grant Russell Vincent Wharington (“Wharington”) (the sixth and seventh defendants respectively, who I will call “the builders” wherever convenient), have not reached a settlement with the plaintiffs. The builders have added third parties to the proceeding, who in turn have added fourth parties.
[1]Merely for the purpose of understanding the role of the respective defendants in the proceeding, I note that the plaintiff’s pleading alleges that the first to fifth defendants were involved in the design and/or construction of a 1200mm Circulation Drain running immediately adjacent to the western boundary of the plaintiffs’ property. The Circulation Drain was part of the Patterson Lakes Development which included filling land, constructing dwellings, and developing the Patterson Lakes tidal waterways system to ensure adequate circulation of water.

The builders contend that the plaintiffs’ claims against them are statute barred by reason of s 134 of the Building Act 1993. Peter Luzinat & Associates Pty Ltd (“the fifth third party”), who is a building surveyor joined to the proceeding by 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.

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Details

Case: [2008] VSC 563
Decision Date: 12 December 2008

CaseChat Overview and Summary

The case before the court involves a dispute between McAskell and another party against Cavendish Properties Ltd and others. The plaintiffs allege that the defendants' actions led to damage to their property, and they seek damages and an injunction. The nature of the dispute revolves around whether the plaintiffs' claim against the sixth and seventh defendants qualifies as a "building action" under the Building Act 1993 (Vic). This determination is crucial as it would impact the applicability of the statutory limitation period and the scope of the claim.

The primary legal issues before the court were whether the plaintiffs' claim against the sixth and seventh defendants constituted a "building action" and, if so, whether the claim was statute-barred. Additionally, the court had to determine whether the term "building work" in the Building Act included "site preparation works" and whether such works were performed "for" or "in connection with" the construction of a building. The resolution of these issues was essential to understanding the scope of the statutory provisions and the plaintiffs' entitlement to relief.

The court found that the plaintiffs' claim against the sixth and seventh defendants did not constitute a "building action" as defined in the Building Act. Consequently, the statutory limitation period did not apply, and the claim was not statute-barred. Furthermore, the court held that "building work" did not encompass "site preparation works," and such works were not performed "for" or "in connection with" the construction of a building. These findings were based on the specific circumstances of the case and the statutory language.

The final orders of the court were that the plaintiffs' claim against the sixth and seventh defendants did not qualify as a "building action" under the Building Act, and therefore, the statutory limitation period did not apply. The court dismissed the plaintiffs' claim against these defendants, and no further action could be taken against them in relation to the matter.

Orders