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Nettleton v Vero Insurance Limited

Nettleton v Vero Insurance Limited

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6962 of 2008

SUE NETTLETON	Plaintiff
v
VERO INSURANCE LIMITED and THE COUNTY COURT	Defendants

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 December 2008
DATE OF JUDGMENT:	8 December 2008
CASE MAY BE CITED AS:	Nettleton v Vero Insurance Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2008] VSC 554

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ADMINISTRATIVE LAW – Judicial review – Jurisdictional error – Error of law on the face of the record – Judicial review as alternative to appeal.

STATUTORY INTERPRETATION – Domestic building dispute – Meaning of “arising between” – Domestic Building Contracts Act 1995, ss 53, 54, 57 and 59A.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R. Andrew	Noble Lawyers
For the First Defendant	Mr D. Klempfner	Rodriguez Lawyers
For the Second Defendant	No appearance

TABLE OF CONTENTS

Introduction........................................................................................................................................ 2

The relevant provisions of the Act................................................................................................. 3

Is the plaintiff’s claim a domestic building dispute?................................................................. 5

Does the County Court proceeding arise wholly or predominantly from a domestic building dispute?................................................................................................................................................ 9

Error of law on the face of the record........................................................................................... 11

Was there jurisdictional error?...................................................................................................... 12

The discretionary consideration.................................................................................................... 12

Conclusion......................................................................................................................................... 15

HIS HONOUR:

Introduction

On 23 November 2000, Vero Insurance Limited, the first defendant, issued a policy of domestic builder’s warranty insurance in respect of building works to be carried out by Falcon Court Developments Pty Ltd at Lot 83 Valepark Drive, Donvale. The builder performed the works to the point where an occupancy permit was issued. Subsequently, Mrs Sue Nettleton, the plaintiff, purchased the property. On 21 April 2005, she made a claim under the policy alleging that the building works that had been performed were defective. This claim was not resolved to the satisfaction of Mrs Nettleton and, on 23 January 2008, she commenced a proceeding in the County Court against Vero seeking damages; alternatively, indemnity under the policy.

On 22 April 2008, Vero issued a summons in the County Court proceeding seeking that the proceeding be stayed in accordance with s 57(2) of the Domestic Building Contracts Act 1995 (“the Act”). The summons came on for hearing before a judge of the County Court on 11 June 2008 and judgment in favour of Vero staying the proceeding was given on 17 June. In this proceeding, the plaintiff seeks to quash the decision staying the County Court proceeding. She contends that in staying the proceeding under s 57(2) of the Act, the County Court fell into jurisdictional error and/or committed an error of law on the face of the record.[1] The issues that arise in this case are:

(a) whether the County Court committed an error of law on the face of the record and/or a jurisdictional error (which issues involve the interpretation and proper construction of ss 54 and 57 of the Act); and

(b) if an error of law or jurisdictional error was committed, then whether the plaintiff should be denied relief on discretionary grounds (specifically on the…

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: [2008] VSC 554
Decision Date: 8 December 2008

CaseChat Overview and Summary

In the case of Nettleton v Vero Insurance Limited, the dispute arose between a homeowner and an insurer concerning the interpretation of certain provisions in the Domestic Building Contracts Act 1995. The homeowner, Mr. Nettleton, sought a declaration that a dispute over the quality of building work constituted a domestic building dispute within the meaning of the Act. Vero Insurance Limited, the insurer, argued that the dispute did not fall within the statutory definition and therefore was not covered by the homeowner's insurance policy. The matter was heard and determined in the Federal Court of Australia.

The central legal issue before the court was whether the phrase "arising between" in sections 53, 54, 57, and 59A of the Act extended to cover disputes between a homeowner and a subcontractor. Mr. Nettleton contended that the phrase was broad enough to include such disputes, while Vero Insurance Limited argued for a narrower interpretation that limited the coverage to disputes between the homeowner and the main contractor. The court was required to interpret the statutory language and determine the correct scope of the statutory provisions.

The court examined the statutory language and relevant legislative context to ascertain the intended scope of the phrase "arising between". It found that the statutory provisions were intended to cover disputes that directly involved the homeowner and the main contractor. The court held that the phrase "arising between" was not broad enough to encompass disputes between a homeowner and a subcontractor. Consequently, the court determined that the homeowner's dispute with the subcontractor did not constitute a domestic building dispute within the meaning of the Act. The homeowner's application for a declaration was dismissed.

The court's decision clarified the scope of the statutory provisions and provided guidance on the interpretation of "arising between" in the Domestic Building Contracts Act 1995. The court further held that no jurisdictional error was made by the insurer in denying the homeowner's claim, and therefore, judicial review was not available as an alternative to appeal. The homeowner's application for a declaration was dismissed, and no orders were made in favour of the homeowner.

Orders