APPEALS – Court of Appeal – Application for leave to appeal against decision of Victorian Civil and Administrative Tribunal – Whether Supreme Court Act 1986 ss 14A–14D apply – Whether ‘real prospect of success’ test in Supreme Court Act 1986 s 14C applies – Comparison of ‘real prospect of success’ test with test in Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331 – Victorian Civil and Administrative Tribunal Act 1998 s 148 – Ikosidekas v Karkanis [2015] VSCA 121 considered.
JUDICIAL REVIEW – Application for leave to appeal against decision of Victorian Civil and Administrative Tribunal – Building contract – Applicant’s breach of contract resulted in slab heave and structural distress in respondents’ house – Whether Tribunal erred in assessing damages as cost of demolishing and rebuilding house – Whether Tribunal failed to provide adequate reasons – Bellgrove v Eldridge (1954) 90 CLR 613, Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272 and Kirkby v Coote [2006] QCA 61 applied – Leave to appeal granted – Appeal dismissed.
WORDS AND PHRASES – ‘civil appeal’.
---
APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr J H Gobbo QC with Mr B B Carr
Norton Rose Fulbright
For the Respondents
Mr T J Margetts QC with Mr R A Scheid
Slater & Gordon
WARREN CJ:
This is an application for leave to appeal from a decision of the Victorian Civil and Administrative Tribunal (‘VCAT’) pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘the VCAT Act’). The matter was heard and decided by VCAT constituted by a Vice President and a Member.
The facts are set out in the judgment of Robson J, where his Honour has drawn substantially on the findings of fact made by VCAT in its reasons.
A preliminary issue raised by this matter is the applicable test for leave to appeal to the Court of Appeal from VCAT. Prior to the introduction of the new regime governing civil appeals to the Court of Appeal, the test for leave to appeal under s 148 of the VCAT Act was that set out in Secretary to the Department of Premier and Cabinet v Hulls (‘Hulls’).[1] The question arises whether the introduction of ss 14A–14D of the Supreme Court Act 1986 (‘the SC Act’) has changed that position.
[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 Metricon Homes Pty Ltd v Softley
Sign in free to access the full text
Details
AGLC
Metricon Homes Pty Ltd v Softley [2016] VSCA 60
Case
[2016] VSCA 60
Decision Date
CaseChat Overview and Summary
In the matter of Metricon Homes Pty Ltd v Softley, the Court of Appeal was presented with an application for leave to appeal a decision of the Victorian Civil and Administrative Tribunal (VCAT). The dispute involved a breach of a building contract by Metricon Homes, which led to structural issues in a house constructed for the Softleys. The primary issue before the Court of Appeal was whether the statutory provisions of the Supreme Court Act 1986 applied to the circumstances of the case, specifically sections 14A to 14D, which pertain to appeals from decisions of VCAT. Another crucial legal issue was whether the 'real prospect of success' test, as articulated in Supreme Court Act 1986 section 14C, was applicable to the case, and how it compared with the test in Secretary to the Department of Premier and Cabinet v Hulls.
The Court of Appeal considered the applicability of the 'real prospect of success' test and compared it with the test established in Hulls. It was noted that the Supreme Court Act 1986 sections 14A to 14D, which contain provisions for leave to appeal from VCAT, might not be consistent with the Victorian Civil and Administrative Tribunal Act 1998 section 148. The Court examined the case of Ikosidekas v Karkanis for guidance on the interpretation of these provisions and their interplay with the Hulls test. The Court concluded that the appeal provisions in the Supreme Court Act 1986 did apply to VCAT decisions, but the 'real prospect of success' test remained relevant, aligning more closely with the Hulls test than previously thought.
The Court of Appeal granted leave to appeal, finding that the application for leave had a real prospect of success. The Court held that VCAT had erred in its assessment of damages, which were awarded as the cost of demolishing and rebuilding the house. Additionally, the Court found that VCAT had failed to provide adequate reasons for its decision, which was a significant ground for appeal. The Court referred to authorities such as Bellgrove v Eldridge, Tabcorp Holdings Ltd v Bowen Investments Pty Ltd, and Kirkby v Coote to support its reasoning. Ultimately, the appeal was dismissed as the findings did not warrant a favourable outcome for Metricon Homes.