Metricon Homes Pty Ltd v Hooper - [2015] VSC 110

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE

Not Restricted

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2014 1749

BETWEEN

METRICON HOMES PTY LTD (ACN 005 108 752)	Plaintiff
- and –
GRAHAM HOOPER	Defendant

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JUDGE:	DIGBY J
WHERE HELD:	Melbourne
DATES OF HEARING:	21 & 22 October 2014 and 3 December 2014
DATE OF JUDGMENT:	26 March 2015
CASE MAY BE CITED AS:	Metricon Homes Pty Ltd v Hooper
MEDIUM NEUTRAL CITATION:	[2015] VSC 110	Revised: 1 April 2015

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JUDICIAL REVIEW – Section 148(1) Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) – Questions of law – Factual findings and inferences not open to Tribunal – Factual findings unreasonable – Wednesbury unreasonableness – Tribunal’s obligations to act fairly (s 97 VCAT Act), to afford natural justice (s 98(1) VCAT Act), to provide a reasonable opportunity to call or give evidence (s 102(1)(a) and (b) VCAT Act) – Incorrect application of the Building Code of Australia 2006 (BCA) – Scheme of the BCA – Options to satisfy BCA Performance Requirements – Provisions of AS 2870 – Tribunal’s errors in determining damages – Notice of contention – Tribunal’s errors in construing the Building Contract.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Gobbo QC with Mr B Carr	CBP Lawyers
For the Defendant	Mr J Twigg SC with Mr T Sedal	Legro Lawyers

HIS HONOUR:

Overview

This appeal concerns a decision of the Victorian Civil and Administrative Tribunal (“the Tribunal”) in Proceeding D972 of 2012 (“the VCAT proceeding”), by which the Senior Member upheld the defendant owner’s claim for the costs involved in the demolition and reconstruction of his house at Tarneit in Victoria. The house had suffered from extensive damage as a result of unacceptable movement of the slab upon which the house was constructed. The Senior Member found that the slab concerned had experienced unacceptable movement because the earthen fill upon which it was founded had not been adequately compacted by the plaintiff builder.

The plaintiff builder contests the decision of the Tribunal. Its principal argument in this appeal is that the Senior Member had no evidentiary basis upon which to conclude that it had imported and placed fill on the site under the slab or that such fill was inadequately compacted.

Summary of application

By Originating Motion dated 14 April 2014, pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (“the VCAT Act”), Metricon Homes Pty Ltd (“the Builder”) seeks leave to appeal in the VCAT proceeding, and if leave is granted, appeals against:

(a)Order 6 and the orders of the Tribunal made on 3 December 2013 (refusal to allow further soil testing); and

(b) Order 1 of the orders of the Tribunal made on 18 March 2014 (the substantive orders on the owner’s claims); and

(c) Order 1 of the orders of the Tribunal made on 1 April 2014 in the proceeding (“the Costs Orders”).

The Builder submits…

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: [2015] VSC 110
Decision Date: 26 March 2015

CaseChat Overview and Summary

In Metricon Homes Pty Ltd v Hooper, the dispute arose from a building contract where the plaintiff, Metricon Homes Pty Ltd, a builder, and the defendant, Mr. Hooper, the homeowner, had a disagreement over the quality of construction and the resulting damages. The case was heard by the Supreme Court of Victoria, which had jurisdiction to review decisions of the Victorian Civil and Administrative Tribunal (VCAT).

The central legal issues involved whether VCAT had erred in its interpretation of the Building Code of Australia 2006 (BCA) and the Australian Standard AS 2870. Specifically, the court examined whether VCAT correctly applied the law in determining that Metricon Homes had breached the contract by failing to construct the house to the required standard. Additionally, the court scrutinized whether VCAT had properly assessed the damages awarded to Mr. Hooper, and whether it had acted fairly and afforded natural justice in its proceedings.

The court found that VCAT had indeed erred in its interpretation of the BCA and AS 2870, leading to an unreasonable conclusion regarding the breach of contract. The Tribunal had not correctly applied the provisions of the BCA, which provides options to satisfy performance requirements, and had failed to provide a reasonable opportunity for Metricon Homes to present evidence. Furthermore, VCAT's determination of damages was flawed, as it did not consider all relevant factors and misapplied the notice of contention provisions. The court concluded that these errors amounted to a failure to act fairly and to afford natural justice, and thus, the decision was subject to judicial review.

The final orders of the court included setting aside the VCAT decision and remitting the matter back for reconsideration, ensuring that all legal principles were correctly applied, and that both parties had a fair opportunity to present their cases.

Orders