Metricon Homes Pty Ltd v Hooper - [2014] VSC 12

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2014 00174

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

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JUDGE:	Mukhtar AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	28 January, 3 February 2014
DATE OF REASONS:	4 February 2014 (Decision pronounced on 3 February)
CASE MAY BE CITED AS:	Metricon Homes Pty Ltd v Hooper
MEDIUM NEUTRAL CITATION:	[2014] VSC 12

APPEAL – Leave to appeal from the Victorian Civil and Administrative Tribunal – Interlocutory order – Order made in the course of hearing – Substantial building dispute − Application by builder to permit further expert investigations into cause of defects – Concurrent expert evidence already conducted and completed – Application refused − Competing considerations on the balance of justice – Natural justice – Principles applicable to appellate intervention on interlocutory discretionary orders – Leave to appeal refused – Victorian Civil and Administrative Tribunal Act 1998, ss−97, 98(1)(a), 102(1) and 148

REASONS FOR DECISION

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A C Neal SC with Mr B B Carr	David Naidoo &Associates
For the Defendant	Mr T G Sedal	Hayden Legro Lawyers

HIS HONOUR:

Yesterday, 3 February 2014, the Court finished the hearing of the plaintiff’s application for leave to appeal under s 148 of the Victorian Civil and Administrative Tribunal Act. The challenge was to an interlocutory discretionary order made by Mr Walker, a Senior Member of the Tribunal, at a time when this building case had been adjourned after eight days of hearing. It is due to resume tomorrow and is expected to take another five days. Thus the Court obtained a situation of great urgency.

The application for leave to appeal was refused. The Court now publishes its reasons. But first, a prologue.

There was much material. Argument spread intensively over two days. Such is the urgency of the case that it is not possible to give reasons with attention to every facet of the case especially its technical elements. The demands put on the Court in such a technical case are a demonstration why it is that interlocutory discretionary decisions in a part heard trial are rarely the subject of appeal. The Court on appeal is made to have a re-enactment of much of the part heard trial. Moreover, this Court cannot be expected to assess, beyond forming an impression, the complex technical issues concerning the causes of the defective concrete slab and the underlying soil conditions which appears to be the dominant matter for determination in the Tribunal hearing. That is why it is said that the litigation should be left to run its course rather than fragment it with interlocutory appeals.

In the end, it will be seen that what has weighed the heaviest in my consideration in refusing leave to appeal is that the order sought to be impeached (which, it is asserted, could have had the effect of preventing the plaintiff…

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: [2014] VSC 12
Decision Date: 3 February 2014

CaseChat Overview and Summary

Metricon Homes Pty Ltd sought leave to appeal from an interlocutory order made by the Victorian Civil and Administrative Tribunal (VCAT) in a substantial building dispute. The dispute centred on the builder's application to permit further expert investigations into the cause of defects in a residential property. The application was made after concurrent expert evidence had already been conducted and completed. VCAT refused the application, balancing competing considerations on the principles of natural justice and the balance of justice. Metricon appealed against the refusal of leave to appeal VCAT's interlocutory order.

The central legal issues before the court were whether the refusal of leave to appeal constituted an appealable interlocutory order and, if so, whether the applicant demonstrated a serious question to be tried. The applicant needed to establish that the order was plainly wrong or that it was so plainly right that no reasonable tribunal could have made it. The court also considered the principles applicable to appellate intervention on interlocutory discretionary orders, including the need to balance the interests of natural justice and the balance of justice.

The court found that the refusal of leave to appeal an interlocutory order was indeed appealable, but the applicant failed to demonstrate that the order was plainly wrong. The court emphasised that interlocutory orders, particularly those involving discretionary decisions, are generally not amenable to appellate review unless there is a clear error of law or a manifest injustice. The applicant did not demonstrate that VCAT's decision was so plainly wrong or manifestly unjust as to warrant appellate intervention. The court held that the applicant had not made out a serious question to be tried and dismissed the application for leave to appeal.

No further orders were made by the court.

Orders