Mirvac (Docklands) Pty Ltd v Philp - [2004] VSC 301

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4963 of 2004

MIRVAC (DOCKLANDS) PTY LTD (ACN 080 378 641)

Plaintiff

PETER EVAN PHILP
and
VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

First Defendant

Second Defendant

AND

No. 5213 of 2004

MIRVAC (DOCKLANDS) PTY LTD (ACN 080 378 641)

Plaintiff

PETER EVAN PHILP
and
VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

First Defendant

Second Defendant

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JUDGE:	Byrne J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 August 2004
DATE OF JUDGMENT:	30 August 2004
CASE MAY BE CITED AS:	Mirvac (Docklands) Pty Ltd v Philp
MEDIUM NEUTRAL CITATION:	[2004] VSC 301	First Revision 21 August 2005

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Administrative law – Domestic Building Contract – contract of sale of apartment "off the plan" – whether Domestic Building Contract – whether contract to arrange or manage the carrying out of domestic building work whether Victorian Civil and Administrative Tribunal has jurisdiction to determine dispute.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J.G Bolton	Jerrard & Stuk Lawyers
For the firstnamed Defendant	Mr AC Archibald QC with Mr JB Davis	Arnold Bloch Leibler
For the secondnamed Defendant	No Appearance

HIS HONOUR:

These proceedings raise important questions as to the jurisdiction of the Victorian Civil and Administrative Tribunal with respect to domestic building disputes arising out of sales of apartments off the plan.

Background

By contract of sale of real estate dated 26 May 2000 entered into between Mirvac (Docklands) Pty Ltd ("Docklands") and Peter Evan Philp, Mr Philp agreed to purchase from Docklands the land and improvements described in the particulars of sale as Lot 347 on stage 5 of an unregistered Plan of Sub-division PS428541D for $950,000. The subject matter of the sale did not then exist. It was an area on the eleventh floor of the west tower of Building 2, Yarra's Edge at Docklands. Work on the construction of this tower had not commenced. It was a sale "off the plan".

The plans annexed to or referred to in the contract were of extreme generality. The area which is the subject of the contract described as an apartment "generally described in the Building Plans and Specifications and identified by the address set out in the Particulars of Sale". The plans referred to are 26 drawings which appear from their description to be little more than floor plans for the various levels, two sections and four elevations. Included in the contract are two undimensioned floor plans showing alternative general layouts of the apartment. Each is endorsed with the caveat:

"The information on this floor plan is believed to be correct but is not guaranteed. Dimensions and specifications are subject to changes without notice. Prospective purchasers must rely on their own enquiries".

The specifications are in fact only three pages setting out nothing more than a list of fixtures, fittings and finishes without any detail as to type or quality.

The particulars of sale disclose that, of the price, $872,989 is attributed to the construction component. By special…

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: [2004] VSC 301
Decision Date: 30 August 2004

CaseChat Overview and Summary

In the matter of Mirvac (Docklands) Pty Ltd versus Philp, the dispute was brought before the court concerning the sale of an apartment "off the plan". The buyer, Philp, alleged that the contract was governed by a Domestic Building Contract (DBC), and sought relief under the Home Building Act 1990 (Vic). Mirvac contended that the contract was not a DBC and that the Victorian Civil and Administrative Tribunal (VCAT) lacked jurisdiction to hear the case. The Supreme Court of Victoria was tasked with determining the nature of the contract and the applicable jurisdiction.

The court had to decide whether the contract was indeed a Domestic Building Contract and, if so, whether it was one that merely arranged or managed the execution of building work, which would render it outside the scope of the DBC. Additionally, the court needed to determine whether VCAT had the jurisdiction to hear the dispute. These questions centred on the interpretation of the contract and the relevant statutory provisions, particularly the definition of a "domestic building contract" under the Home Building Act 1990 (Vic).

The court examined the terms of the contract and found that it did not fall within the definition of a Domestic Building Contract as it did not pertain to the construction of a residential building. Instead, the contract was for the sale of a completed apartment, which had already been constructed. The court held that the contract was not a DBC and that VCAT did not have jurisdiction to hear the dispute. Consequently, the court dismissed the buyer's application, finding that the dispute should be resolved in the appropriate court with the relevant jurisdiction.

The court ordered that the buyer's application be dismissed with costs. This outcome underscored the importance of accurately classifying contracts and understanding jurisdictional boundaries in the context of building disputes.

Orders