McIntyre v Van Der Sluys

Case [2024] VSC 484


IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2024 00785

BETWEEN:

DAWN MCINTYRE Appellant
v 
ADRIAN VAN DER SLUYS T/A AV BUILDERS Respondent

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JUDGE:

Daly AsJ

WHERE HELD:

Melbourne

DATE OF HEARING:

9 July 2024, further written submissions filed on 23 July 2024

DATE OF JUDGMENT:

19 August 2024

CASE MAY BE CITED AS:

McIntyre v Van Der Sluys

MEDIUM NEUTRAL CITATION:

[2024] VSC 484

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JUDICIAL REVIEW — Appeal from magistrate’s decision to refuse an application under s 57D of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘Act’) for the extension of a 10 year limitation period in s 134 of the Building Act 1993 (Vic) — Appellant initially commenced proceeding in the Victorian Civil and Administrative Tribunal alleging that building works completed by the respondent were defective — Proceeding later commenced in Magistrates’ Court due to federal subject matter — Whether the magistrate erred in concluding that the appellant’s late making of the application was not attributable to additional steps she was required to take — Thurin v Krongold Constructions (Aust) Pty Ltd [2024] VSC 42 referred to — Whether the learned magistrate failed to take into account relevant considerations when exercising discretion under s 57D(1)(c) of the Act — Morrison-Gardiner v Car Choice Pty Ltd (2004) 43 MVR 153 and Ward v Wiltshire Australia Pty Ltd (2008) 51 MVR 1 referred to — Whether the magistrate failed to give adequate reasons — Whether to remit the proceeding to the Magistrates’ Court or exercise discretion — Discretion re-exercised — Relevance of potential claim against solicitors to the exercise of discretion — Tsiadis v Patterson (2001) 4 VR 114 referred to — Appeal allowed and extension to limitation period granted.

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APPEARANCES:

Counsel Solicitors
For the Appellant Mr A Rollnik of counsel Budgen Allen Graham Lawyers
For the Respondent Mr D Cafari of counsel Griffin Law Firm

HER HONOUR:

Introduction and background

  1. These reasons concern an appeal on a question of law pursuant to s 109 of the Magistrates’ Court Act 1989 (Vic) from the orders made by the Magistrates’ Court of Victoria at Broadmeadows on 22 January 2024. On that day, a magistrate dismissed the appellant’s application to extend the limitation period under s 57D of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’).

  1. The appellant, Ms Dawn McIntyre, is the registered proprietor of a property in Strathmore (‘property’).  The respondent, Mr Adrian Van Der Sluys, is a builder who owned and operated a building and construction company, AV Builders.

  1. The background facts in this proceeding are not in dispute. On or around 11 March 2011, the parties entered into a contract of sale for the construction of a double-storey house on the property for $875,000 (‘building works’). On 31 January 2012, an occupancy certificate was issued in respect of the building works. Pursuant to s 134(1) of the Building Act 1993 (Vic) (‘Building Act’), the time in…

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McIntyre v Van Der Sluys [2024] VSC 484
Case
[2024] VSC 484
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CaseChat Overview and Summary

The case of McIntyre v Van Der Sluys involved an appeal against a magistrate's decision to reject an application for an extension of a 10-year limitation period under section 134 of the Building Act 1993 (Vic). The appellant, McIntyre, had initially filed a claim in the Victorian Civil and Administrative Tribunal (VCAT) alleging that building works performed by the respondent, Van Der Sluys, were defective. The matter was later transferred to the Magistrates’ Court due to federal subject matter jurisdiction. McIntyre sought an extension of the limitation period under section 57D of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). The magistrate denied the application, and McIntyre appealed to the court.

The primary legal issues addressed by the court were whether the magistrate had erred in attributing the late application to additional steps required of McIntyre, and whether the magistrate had failed to consider relevant factors when exercising the discretion under section 57D(1)(c) of the Act. The court also examined whether the magistrate had provided sufficient reasons for the decision and whether the appeal should be remitted back to the Magistrates' Court or if the court should exercise its discretion afresh. The court considered the relevance of a potential claim against McIntyre's solicitors in the exercise of its discretion and referenced relevant case law, including Thurin v Krongold Constructions (Aust) Pty Ltd [2024] VSC 42, Morrison-Gardiner v Car Choice Pty Ltd (2004) 43 MVR 153, Ward v Wiltshire Australia Pty Ltd (2008) 51 MVR 1, and Tsiadis v Patterson (2001) 4 VR 114.

The court concluded that the magistrate had erred in attributing the late application to additional steps required of McIntyre. The court found that the magistrate had failed to take into account relevant considerations when exercising the discretion under section 57D(1)(c) of the Act and that the magistrate had not provided adequate reasons for the decision. The court re-exercised its discretion and granted the extension of the limitation period. The potential claim against McIntyre's solicitors was deemed relevant in the exercise of the court's discretion. The appeal was allowed, and the limitation period was extended.

The court ordered that the matter be remitted to the Magistrates’ Court with directions to grant the extension of the limitation period under section 57D of the Act.

Orders

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Background

Background to the litigation

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Evidence

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Decision

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