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McIntyre v Van Der Sluys

McIntyre v Van Der Sluys

Case [2024] VSC 484 19 August 2024

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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

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’).

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.

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…

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 McIntyre v Van Der Sluys

Details

AGLC: McIntyre v Van Der Sluys [2024] VSC 484
Case: [2024] VSC 484
Decision Date: 19 August 2024

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