Naylor v Advaland Pty Ltd - [2014] VSC 331

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2013 3842

MELISSA LOUISE NAYLOR	Applicant
v
ADVALAND PTY LTD	First Respondent
- and -
KITCHENER CRESPIN	Second Respondent

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JUDGE:	LANSDOWNE AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	2 July 2014
DATE OF JUDGMENT:	14 July 2014
CASE MAY BE CITED AS:	Naylor v Advaland Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2014] VSC 331

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VCAT – leave to appeal out of time – undefended application – substantial delay sufficiently explained and no prejudice claimed – an arguable case for leave to appeal shown on some grounds – leave to appeal out of time granted

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APPEARANCES:	Counsel	Solicitors
The Applicant appeared in person
For the Respondents	No appearance

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

The test for leave to appeal............................................................................................................... 3

Should leave be granted out of time?............................................................................................. 3

Draft notice of appeal dated 16 June 2014..................................................................................... 4

A:..... Building code....................................................................................................................... 5
B:..... Domestic building warranty insurance............................................................................ 7
C:..... Lack of cross-examination opportunity......................................................................... 11
D:..... Foreshadowing reasoning during hearing.................................................................... 12
E:..... Failure to deal with claim/allegation............................................................................ 16
F:..... Costs.................................................................................................................................... 18

Conclusion......................................................................................................................................... 19

Orders................................................................................................................................................. 19

HER HONOUR:

Introduction

This is an application for leave to appeal out of time from orders made by the Victorian Civil and Administrative Tribunal (“VCAT” or “the Tribunal”) on 27 June 2013. The applicant had made application to VCAT in the Domestic Building List in respect of concerns arising out of a domestic building contract between her and the first respondent to construct a bathroom at her premises. In her application dated 17 November 2012, the applicant sought the sum of $41,500.00. In final particulars of her claim dated 19 June 2013 she sought the sum of $69,776.00 including rectification costs of $54,758.00, costs incurred in the application of $2,400.00 and other damages.

The contract price was $37,225.70. By counterclaim the first respondent sought the sum of $6,540.46 said to be owing pursuant to the contract and damages for defamation.

The written record of the orders made 27 June 2013, the day of the hearing by Member R. Buchanan records the orders as follows:

(1) The First Respondent must pay $2,862.93 to the Applicant;
(2) The proceeding is struck out as against the Second Respondent;
(3)On or before 29 July 2013 the First Respondent must give the Applicant:
(a)evidence of builders warranty insurance for the works which were the subject of the contract between the parties dated 10 November 2011 (“the Works”);
(b)compliance certificates for plumbing and electricity for the Works;

(c) manuals for the spa bath and the hot water service.
(3)Liberty is reserved to the Applicant to apply for further orders if the First Respondent does not comply with orders (2)(a) and (b).

As will be seen, the order expressed in the second (3) differs in a material respect from the intention expressed by the Member in his oral and written reasons. In his reasons, the Member specifically limited the liberty to…

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 Naylor v Advaland Pty Ltd

Details

AGLC: Naylor v Advaland Pty Ltd [2014] VSC 331
Case: [2014] VSC 331
Decision Date: 14 July 2014

CaseChat Overview and Summary

The parties involved in the case were Naylor, the applicant, and Advaland Pty Ltd, the respondent. The dispute arose from an earlier decision made by the Victorian Civil and Administrative Tribunal (VCAT) in a matter that was not specified in the summary. The applicant sought leave to appeal the earlier decision out of time, with the application being heard in the Supreme Court of Victoria. The legal issues that the court needed to consider included whether the applicant had provided a substantial explanation for the delay in filing the application for leave to appeal, and whether any prejudice to the respondent had been claimed or demonstrated.

The court examined the applicant's explanation for the delay in filing the application for leave to appeal. The applicant provided evidence of a series of events that had contributed to the delay, including illness and a misunderstanding regarding the applicable time limits. The court found that the applicant had provided a substantial explanation for the delay and that the respondent had not claimed or demonstrated any prejudice as a result of the delay. The court also considered whether the applicant had demonstrated an arguable case for leave to appeal on some grounds. The court found that the applicant had shown an arguable case for leave to appeal on some grounds, and therefore, granted leave to appeal out of time.

The Supreme Court of Victoria granted the applicant leave to appeal out of time, finding that the substantial delay was sufficiently explained and no prejudice had been claimed or demonstrated. The court found that the applicant had demonstrated an arguable case for leave to appeal on some grounds, and therefore, granted the application. The court did not provide further details on the specific grounds for appeal or the outcome of the appeal itself, as these were not relevant to the issue of leave to appeal out of time. The final orders of the court were that the applicant be granted leave to appeal out of time, and that the respondent bear its own costs of the application.

Orders