O'Connell v Lentelle Pty Ltd (in liquidation) (No 2)
[2025] VCC 219
•6 March 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-22-03763
| Cathy O’Connell | Plaintiff | |
| v | ||
| Lentelle Pty Ltd (ACN 077 486 492) t/as Jims Constructions (in liquidation) | First defendant | |
| and | ||
| Nix Plumbing Pty Ltd (ACN 159 252 570) | Second defendant | |
| and | ||
| J.D Fenton Plumbing and Drainage Pty Ltd (ACN 625 230 748) | Third defendant | |
| and | ||
| Ward Trevaskis | Fourth defendant | |
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JUDGE: | Her Honour Judge Kirton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 February 2025 | |
DATE OF RULING: | 6 March 2025 | |
CASE MAY BE CITED AS: | O’Connell v Lentelle Pty Ltd (in liquidation) & Ors (No 2) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 219 | |
RULING
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Subject:BUILDING CASE – liability of licensed plumber for breach of duty – misleading or deceptive conduct under the Australian Consumer Law – no contract between principal and plumber
Catchwords: Domestic plumbing work – plaintiff homeowner contracted with builder – defects in building work including plumbing – builder in liquidation – plaintiff brought claims in this proceeding against a plumber whose licence number was used to generate a compliance certificate after the defective work was performed – causes of action pleaded breach of duty to avoid pure economic loss – breach of statutory duty – misleading or deceptive conduct under the Australian Consumer Law – questions of reliance – causation of loss
Legislation Cited: Civil Procedure Act 2010 (Vic); County Court Civil Procedure Rules 2018 (Vic); Building Act 1993 (Vic); Plumbing Regulations 2018 (Vic).
Cases Cited:O’Connell v Lentelle Pty Ltd (in liquidation) & Ors [2025] VCC 109; The Uniting Church in Australia Property Trust (Vic) v Ian Hartley Architects Pty Ltd & Ors [2022] VSC 233; Fair Trading Act 1999 (Vic) as repealed by Australian Consumer Law and Fair Trading Act 2012 (Vic); Wheelahan v City of Casey (No 12) [2013] VSC 316; Babcock & Brown DIF III Global Co-Investment Fund, LP v Babcock & Brown International Pty Ltd (No 2) [2017] VSC 556; Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) 42 VR 27; Manderson M & F Consulting (A Firm) v Incitec Pivot Ltd 35 VR 98; Yin v Wu [2023] VSCA 130; Padella Pty Ltd v Elliott [2018] VSC 301; Matthews v SPI Electricity Pty Ltd (2011) 34 VR 584; [2011] VSC 168; Competition and Consumer Act 2010 (Cth); Wardley Australia Limited & Anor v The State of Western Australia (1992) 175 CLR 514; Bird v DP (2024) 98 ALJR 1349; Woodland v Swimming Teachers Association [2014] AC 537; Hawkins v Clayton (1988) 164 CLR 539; Dansar Pty Ltd v Byron Shire Council (2014) 89 NSWLR 1; Swift v Wearing-Smith [20161 NSWCA 38; Vairy v Wyong Shire Council (2005) 223 CLR 422; Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397; Byrne v Australian Airlines Ltd (1995) 185 CLR 410; Environment Protection Authority v Orchard Holdings (NSW) Pty Ltd (in liq) (2014) 86 NSWLR 499; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; BGM16 v Minister for Immigration and Border Protection (2017) 252 FCR 97; Envestra Ltd v Federal Commissioner of Taxation (2008) 169 FCR 309.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The Plaintiff appeared in person | - |
| For the First Defendant | No appearance | |
| For the Second Defendant | - | C Terrill, Terrill & Holmes |
| For the Third Defendant | - | S Moore, Wotton Kearney |
| For the Fourth Defendant | D Lorbeer | R Auricchio, MNG Lawyers |
HER HONOUR:
This hearing
1The fourth defendant, Ward Trevaskis (Trevaskis), was joined to the proceeding on the plaintiff’s application by Orders made on 5 September 2024. The Orders record that he did not object to being joined as a defendant, but he reserved his rights to object to the proposed statement of claim which was to be filed by the plaintiff by 19 September 2024, including to apply for summary dismissal.
2Trevaskis issued a summons[1] and on 24 February 2025 I heard his application for the following orders:
(a) pursuant to s 63 of the Civil Procedure Act 2010 (Vic) (CPA) and Order 22 of the County Court Civil Procedure Rules 2018 (Vic) (the Rules), there be summary judgment for the fourth defendant; alternatively
(b) the plaintiff’s claim against the fourth defendant be struck out under Order 23.02 of the Rules; alternatively
(c) the fourth defendant have leave under r 36.01(1)(b) of the Rules to amend his defence in the form exhibited to the affidavit of Robert Auricchio dated 31 January 2025.
[1]Summons dated 29 November 2024; amended Summons dated 31 January 2025; further amended summons dated 5 February 2025.
3For the reasons that follow I will order that all claims against Trevaskis, namely for pure economic loss in negligence, breach of statutory duty and relying upon the ACL will be struck out. The deficiencies in the pleading were drawn to the attention of the plaintiff prior to the hearing. The facts relied on by the plaintiff make it impossible for her to demonstrate that a proper basis exists to amend the pleading in a manner that would enable any of the causes of action alleged to be properly pleaded. The flaws in the pleaded claims are such that it is not appropriate to grant the plaintiff leave to re-plead and it would be contrary to the provisions of the CPA to permit her to do so.
Background
4The background to the dispute is set out in my earlier decision[2] in this proceeding (the Joinder Decision). This application involves only the property at 14 Mary Street, Windsor which the plaintiff had planned to develop by constructing a two level dwelling and a workshop and studio.
[2]O’Connell v Lentelle Pty Ltd (in liquidation) & Ors [2025] VCC 109 (‘the Joinder Decision’).
5The plaintiff engaged a builder Lentelle Pty Ltd (Lentelle) to carry out the building works, under a domestic building contract. Lentelle subcontracted the belowground sewer and belowground stormwater works (the plumbing works) to JD Fenton Plumbing & Drainage Pty Ltd (JDF). JDF carried out the plumbing works. These facts are agreed between the plaintiff and JDF.[3]
[3]Plaintiff’s Third Further Amended Statement of Claim, dated 27 January 2025, 13 [19] (‘3FASOC’); Third defendant’s defence dated 6 December 2024, 3-4 [19].
6It is also not disputed that Trevaskis did not carry out, or supervise the carrying out of the plumbing work.[4] However, his name appears on two versions of a Compliance Certificate[5] lodged with the Victorian Building Authority (VBA) in relation to the plumbing works. For that reason, the plaintiff says, she joined Trevaskis to the proceeding. When pressed during the hearing of Trevaskis’ summons, the plaintiff repeated several times that she had only named him as a party because he had either issued the Compliance Certificates or had allowed his licence to be used by JDF.
[4]3FASOC (n 3) 25 [37(a)]; Fourth Defendant’s Defence dated 6 December 2024, 6 [37(a)] (‘Fourth defendant’s defence’).
[5]Within the meaning of Part 12A Div 4 of the Building Act 1993 (Vic) (‘Building Act’).
7For the purposes of this application, the fourth defendant concedes that he lodged the two versions of the Compliance Certificate with the VBA. He makes this concession on the basis that the Court must assess the plaintiff’s case at its highest; that is, that she can prove that he did knowingly provide the Compliance Certificate or Certificates.
8From that starting point, Trevaskis’ submission is essentially that, by reference to the chronology of events, the plaintiff’s claims against him simply cannot succeed as a matter of logic or basic principle. The simple point is that the alleged act on the part of the fourth defendant (the alleged issue of the Compliance Certificate or Certificates) occurred well after the plumbing works had been done (which, it is alleged and admitted the fourth defendant did not supervise) and the other events said to give rise to the plaintiff's loss (and in particular the laying of the slab).
Chronology
9The following dates are relevant to this issue and are agreed between the plaintiff, JDF and Trevaskis:
(a) September 2021: Mary Street building contract between plaintiff and Lentelle.[6]
(b) 14 December 2021: JDF undertook installation of below ground sewer and stormwater pipes.[7]
(c) Between December 2021 – 4 April 2022: Slab was laid.[8]
(d) 4 April 2022: Plaintiff issued notice to remedy bready breach to Lentelle.[9]
(e) 2 May 2022: Plaintiff notified Lentelle that she terminated the Mary Street Building Contract.[10]
(f) 9 September 2022: Plaintiff commenced proceeding against Lentelle and Mr Lawless.[11]
(g) 27 February 2023: Stated date of lodgement of original compliance certificate.[12]
(h) 6 June 2023: Stated date of lodgement of amended compliance certificate. [13]
(i) 30 August 2023: Lentelle granted leave to join the entities responsible for carrying out plumbing works.[14]
[6]3FASOC (n 3), 4 [6]; Fourth defendant’s Defence (n 4), 1 [6].
[7]3FASOC (n 3) [19], Third defendant’s defence dated 6 December 2024, 3 [19].
[8]Plaintiff’s amended statement of Claim dated 10 November 2023, 15 [38] (‘ASOC’); First defendant’s amended defence and counterclaim dated 22 November 2023 [38] (‘First defendant’s defence’).
[9]ASOC (n 8), 15 [39]; First defendant’s defence (n 8) [39].
[10]ASOC (n 8) [41A] (as amended by the Orders dated 20 November 2023 [4]); First defendant’s defence (n 8), [39].
[11]Writ dated 1 September 2022.
[12]Affidavit of Robert Auricchio, dated 29 November 2024, RA-1, 6; Affidavit of Cathy O’Connell dated 23 December 2024, appendix 3A.
[13]The version relied on by the plaintiff in her 3FASOC (n 3), 14 [25]; Affidavit of Robert Auricchio, dated 29 November 2024, RA-1, 6; Affidavit of Cathy O’Connell dated 23 December 2024, appendix 3A.
[14]Orders dated 30 August 2023,[6].
What are the principles to be applied on a strikeout or summary dismissal application?
10As set out above, Trevaskis seeks orders under s 63 of the CPA, rule 22 of the Rules, and/or rule 23 of the Rules. The present proceeding shares many similarities with the facts considered by his Honour Justice Delany in The Uniting Church in Australia Property Trust (Vic) v Ian Hartley Architects Pty Ltd & Ors[15] (The Uniting Church).
[15][2022] VSC 233, [39] – [43] (‘The Uniting Church’).
11That proceeding involved a claim brought by a principal (the Church) against an engineer (Grant) who was an employee of an engineering firm (Kersulting Pty Ltd) which was contracted to the project architect (Ian Hartley Architects Pty Ltd). The claim against Grant was put on two bases: an alleged novel duty of care to avoid pure economic loss being sustained by the Church; alternatively, engaging in misleading or deceptive conduct in contravention of s 9 of the Fair Trading Act 1999 (Vic) by making representations which had no reasonable basis. Grant applied to have the claim against him struck out.
12Delany J set out the principles[16] to be applied in such an application. He referred to the principles summarised by J Dixon J in Wheelahan v City of Casey (No 12)[17] (Wheelahan) and said:
It is sufficient to reproduce the first five paragraphs of his Honour’s summary:
(a)Order 13 of the Rules set out the relevant requirements of a sufficient pleading, while r 23.02 provides the grounds on which the sufficiency of a pleading may be impugned;
(b)the function of a pleading in civil proceedings is to alert the other party to the case they need to meet (and hence satisfy basic requirements of procedural fairness) and further, to define the precise issues for determination so that the court may conduct a fair trial;
(c)the cardinal rule is that a pleading must state all the material facts to establish a reasonable cause of action (or defence). The expression ‘material facts’ is not synonymous with providing all the circumstances. Material facts are only those relied on to establish the essential elements of the cause of action;
(d)as a corollary, the pleading must be presented in an intelligible form – it must not be vague or ambiguous or inconsistent. Thus a pleading is ‘embarrassing’ within the meaning of r 23.02 when it places the opposite party in the position of not knowing what is alleged;
(e)the fact that a proceeding arises from a complex factual matrix does not detract from the pleading requirements. To the contrary, the requirements become more poignant;
…
[16]Ibid, 9-10 [39].
[17][2013] VSC 316, [25] (citations omitted) (‘Wheelahan’).
13In TheUniting Church the Church referred to the authority that technical objections to pleadings are inconsistent with the obligations imposed on litigants and practitioners under the CPA. The Church placed reliance on Babcock & Brown DIF III Global Co-Investment Fund, LP v Babcock & Brown International Pty Ltd (No 2),[18] where Hargrave J, after adopting the principles set out in Wheelahan, went on to say:
To this summary, I would add that the Court should consider the pleading under a challenge as a whole and adopt a practical case management approach to pleading objections, rather than accepting technical objections when the true nature of the case to be met is clear from reading the pleading as a whole and there is no embarrassment to filing a responsive pleading. Such an approach accords with the discretionary nature of the power to strike out and with the overarching purpose under the Civil Procedure Act...
[18][2017] VSC 556, 4-5 [15].
14The defendant in TheUniting Church (Grant) submitted that his complaints were not ‘merely technical’, but were substantive and, if upheld, are deficiencies that are incapable of being cured by amendment.
15Delany J held:[19]
The critical issue in this case is whether the SOC pleads material facts sufficient to establish a reasonable cause of action against Grant, one with a proper basis for the causes of action relied upon. The complaints made are substantive. In short, are the causes of action alleged available; if so, are they properly pleaded; if not, should leave be given to re-plead.
[19]The Uniting Church (n 15), 11-12 [43].
16Sections 63 and 64 of the CPA provide as follows:[20]
63 Summary judgment if no real prospect of success
(1) Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.
(2) A court may give summary judgment in any civil proceeding under subsection (1)—
(a) on the application of a plaintiff in a civil proceeding;
(b) on the application of a defendant in a civil proceeding;
(c) on the court's own motion, if satisfied that it is desirable to summarily dispose of the civil proceeding.
[20]Civil Procedure Act 2010 (Vic), ss 63 & 64.
64 Court may allow a matter to proceed to trial
Despite anything to the contrary in this Part or any rules of court, a court may order that a civil proceeding proceed to trial if the court is satisfied that, despite there being no real prospect of success the civil proceeding should not be disposed of summarily because—
(a) it is not in the interests of justice to do so; or
(b) the dispute is of such a nature that only a full hearing on the merits is appropriate.
17It is well established that the test under s 63 is whether the claim has “no real prospect of success”. The “no real chance of success” test is (to some degree) more liberal than the “hopeless” or “bound to fail” test.[21]
[21]Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) 42 VR 27, 35 (‘Lysaght’).
18Further, it must always be borne in mind that the power to summarily terminate proceedings is one that “should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.”[22]
[22]Ibid.
19The power ought to be exercised consistently with the over-arching purposes of the CPA and having regard to the fact that, if granted, it will deprive a party of the opportunity of pursuing its claim or defence.[23]
[23]Ibid.
20In an application under s 63 of the CPA, I must also take s 64 into consideration. In their joint judgment in Manderson M & F Consulting (A Firm) v Incitec Pivot Ltd,[24] Redlich JA and Judd AJA drew attention to the need for Courts to give separate consideration to the discretion under s 64 when determining applications for summary judgment. Similarly, in Yin v Wu, Kyrou and T Forrest & Hargrave JJA held:[25]
… there is much to be said for a construction of s 63 which requires the court to consider whether the discretion under s 64 to order that a proceeding proceed to trial should be considered in every case where the court reaches the view that there is no real prospect of success. Otherwise, it is difficult to see the purpose of the introductory words to s 63(1) (‘Subject to section 64’). Reading the two sections together suggests that the discretion to give summary judgment under s 63 is subject to the court’s consideration of its discretion under s 64…
[24]35 VR 98.
[25][2023] VSCA 130, 43 [137].
21A summary of the applicable principles where a plaintiff seeks summary judgment were considered by Matthews JR in Padella Pty Ltd v Elliott (Padella).[26] Although the present case is the reverse application (defendant applying for summary judgment), it is useful to mention here as the party opposing the application was not legally represented. His Honour stated:[27]
In Permanent Custodians Ltd v Sanders, I summarised the applicable principles in respect of the Court’s approach where one of the parties is not represented by a lawyer. I adopt and follow that summary.
In determining the Application, I have considered all issues raised by Mr Elliott [the self-represented defendant] in his Defence and oral submissions to consider whether his defence has any real prospects of success, without making an undue emphasis on proper form, as Mr Elliott is self‐represented. In my view, this approach is justified given Mr Elliott’s unrepresented status and is consistent with the Court’s approach to unrepresented litigants.
[26][2018] VSC 301; BC201804644.
[27]Ibid, 8 – 9 [29] –[30].
22It is also relevant to mention the leading authority of Matthews v SPI Electricity Pty Ltd,[28] where J Forrest J identified several principles applicable to the determination of applications for summary judgment:
(a) If a court determines that a particular cause of action is hopeless or bound to fail, then it should be dismissed;
(b) A court may also dismiss a claim where it determines that it has no real prospect of success in the sense that such prospects are fanciful rather than realistic;
(c) The less complex the issue in a case then the easier it is for a court to take the view that such a proceeding is capable of being determined on summary judgment; and
(d) Whatever the test to be applied, the power to order summary dismissal of a claim must be exercised with care. This is particularly so where a case may involve issues of contested fact, or where its consequences may affect a large number of persons.
[28](2011) 34 VR 584; [2011] VSC 168; BC201102816, [22].
23In accordance with the comments of Matthews JR in Padella, I have proceeded on the basis that if the plaintiff has identified an arguable claim, or claims, in her pleadings (including any documents referred to in the 3FASOC), her submissions, or her affidavit, then I will not be satisfied to strike out the claims under rules 23 or r 63. Further, even if I am satisfied under r 63, I will consider if there is a reason under r 64 why the claims should be decided at trial.
The plaintiff’s documents and submissions identifying the proposed claims
24The plaintiff’s claim against Trevaskis was first set out in her Second Further Amended Statement Of Claim (2FASOC) dated 20 September 2024. The 2FASOC was drawn by solicitors and Counsel who are both experienced in this area of law. They have since ceased to act.
25The plaintiff has since been given leave by Orders made on 7 February 2025 to file her proposed Third Further Amended Statement Of Claim (3FASOC) dated 27 January 2025, subject to certain conditions. It is not clear if the plaintiff plans to rely on the 3FASOC (after leave was given on 7 February 2025, she sent emails to the Court on 11 and 13 February 2025 disputing the terms of the order. The Court replied by email advising the plaintiff that if she did not accept the terms of the order, then no leave has been granted and the trial will proceed based on her 2FASOC. The plaintiff replied indicating she was seeking legal advice).
26In any event, the 3FASOC makes no changes to her pleading against Trevaskis, other than to add some particulars of loss and damage. In this decision I will refer to the 3FASOC, but my analysis and conclusions are equally applicable to the 2FASOC.
27The plaintiff relied on:
(a) Two affidavits opposing Trevaskis’ application dated 23 December 2024 and 14 February 2025;
(b) Written submissions dated 14 February 2025; and
(c) Oral submissions presented at the hearing.
The fourth defendant’s documents
28The fourth defendant relied on the following documents and oral submissions presented at the hearing:
(a) Affidavits of Robert Auricchio dated 29 November 2024, 31 January 2025, 5 February 2025 and 13 February 2025;
(b) The pleadings filed by the plaintiff, first defendant, third defendant and himself; and
(c) Submissions dated 13 February 2025.
What claims is the plaintiff purporting to bring?
29In her 3FASOC the plaintiff pleads three causes of action against Trevaskis:
(a) A misleading or deceptive conduct claim under the Australian Consumer Law;
(b) A negligence claim; and
(c) A breach of statutory duty claim.
30I will address Trevaskis’ submissions on each of the causes of action in turn. I will then set out and address the plaintiff’s arguments. As she did not respond to the separate legal issues raised by Trevaskis, it is convenient to deal with her submissions as having universal application to all the matters raised by Trevaskis.
Misleading or deceptive conduct claim
31At paragraph 36 of the 3FASOC the plaintiff alleges that by issuing the compliance certificate, Trevaskis represented that:
(a) he had carried out, or supervised the carrying out of the plumbing works; and
(b) the plumbing works had been carried out in accordance with all applicable laws and regulations;
(collectively, the Trevaskis Representations).
32At paragraph 37 of the 3FASOC the plaintiff alleges that the Trevaskis Representations were false in that:
(a) Trevaskis had not carried out, or supervised the carrying out of the plumbing works; and
(b) the plumbing works had not been carried out in accordance with all applicable laws and regulations.
33At paragraph 38 of the 3FASOC the plaintiff alleges that the Trevaskis Representations constituted misleading or deceptive conduct, and/or conduct which was likely to mislead or deceive in contravention of section 18 of the Australian Consumer Law (Victoria) (ACL)[29] (Trevaskis' Contraventions).
[29]Competition and Consumer Act 2010 (Cth) sch 2 (‘Australian Consumer Law’).
34At paragraph 40 on the 3FASOC, the plaintiff pleads “(b)y reason of Trevaskis' contraventions, the Owner has suffered loss and damage.” The particulars of the loss and damage are said to be the same loss and damage as is claimed against JDF at paragraph 29 of the 3FASOC.
35The Prayer for Relief sets out the loss and damage as:[30]
(a) Damages.
(b) Alternatively, damages or compensation pursuant to s 236 of the ACL.
(c) Interest.
(d) Costs (including consequential, resultant and legal fees).
[30]3FASOC (n 3), 27.
36The pleading lacks any detail of how the alleged Trevaskis Representations, or Trevaskis' Contraventions caused the plaintiff any loss or damage.
37It is well settled law that there can be no cause of action for misleading and deceptive conduct unless or until loss occurs by reason of the conduct.[31]
[31]Wardley Australia Limited & Anor v The State of Western Australia (1992) 175 CLR 514, 19.
38Her Prayer for Relief relies on s 236 of the ACL, which states:[32]
Actions for damages
(1) If:
(a) a person (the claimant ) suffers loss or damage because of the conduct of another person; and
(b) the conduct contravened a provision of Chapter 2 or 3;
[32]Australian Consumer Law (n 29), s 236.
the claimant may recover the amount of the loss or damage by action against that other person, or against any person involved in the contravention.
39The phrase "because of” in s 236 means that the plaintiff must establish that her loss and damage was caused by the Trevaskis Representations or Trevaskis' Contraventions. That is, she is required to establish a causative nexus between the Compliance Certificate or Certificates and the loss alleged.
40Clearly, and regardless of whether or not Trevaskis was complicit in the manufacturing of the Compliance Certificate, the Chronology illustrates that the plumbing defects complained of occurred approximately 18 months prior to the issuing of the Compliance Certificates. The plaintiff did not rely upon the Compliance Certificates and they caused her no loss. The loss she does claim (at paragraphs 40 and 29 of the 3FASOC) is the cost to rectify the non-compliant work allegedly carried out by JDF in 2021.
41I repeat the findings I made in the Joinder Decision.[33] The plaintiff acknowledges that Trevaskis was not engaged to undertake or supervise, nor did he undertake or supervise any of the plumbing work at Mary Street. Her claim against him relates only to the issuing of the Compliance Certificate or Certificates. Trevaskis provided the Certificates approximately 18 months after the plumbing work was done, and long after the plaintiff had terminated her contract with Lentelle. Her evidence is that she did not know of Trevaskis’ existence until Lentelle provided her with a Compliance Certificate in 2023. On the facts, it is impossible to understand how she relied on the Certificates. The insurmountable problem with this claim is that as a matter of fact, the plaintiff cannot demonstrate that she relied on the Trevaskis Representations or the Trevaskis Contraventions, or that they caused her loss and damage.
[33]The Joinder Decision (n 2).
Negligence
42The negligence claim is contained in paragraphs 32, 34 and 35 of the 3FASOC. The allegation is that JDF owed the plaintiff a duty, JDF was not licensed, Trevaskis knew or ought to have known that the plumbing works were required to have been either performed or supervised by a licensed plumber, and Trevaskis knew or ought to have known that the plaintiff was vulnerable in respect of any failure on the part of Fenton [i.e. JDF], and this gives rise to Trevaskis owing the plaintiff a duty.
43Paragraph 32 “refers to and repeats paragraph 26”, in which paragraph she sets out all the factors she says give rise to JDF owing a duty to the plaintiff. Paragraph 32 then continues “by reason of the matters pleaded therein, the matters pleaded in paragraphs 3 and 4, 20 to 26 and in particular the fact that:
(a) Trevaskis was a plumber who was licensed in respect of inter alia drainage works;
(b) Fenton [i.e. JDF] was not licensed in respect of drainage works;
(c) Trevaskis knew or ought to have known that the plumbing works were required to have been either performed by a licensed plumber, or for them to have been performed by a registered plumber under Trevaskis’ supervision;
(d) the Owner was, and Trevaskis knew or ought to have known that the Owner was, vulnerable in respect of any failure on the part of Fenton to perform the works in the manner specified in subparagraph 2614(c) [sic] above;
(e) [Trevaskis owed the Owner a duty to ensure that the plumbing works were] undertaken with the exercise of all due skill, care and diligence; and
(f) [Trevaskis owed the Owner a duty to ensure that the plumbing works were] carried out in accordance with all applicable laws and regulations, including the Building Act 1993 (Vic) (Building Act) and Plumbing Regulations 2018 (Vic) (Plumbing Regulations).
44At paragraph 34,[34] the plaintiff alleges that in breach of his duty of care to her, Trevaskis did not:
(a) ensure that the plumbing works were undertaken with reasonable skill and care;
(b) ensure that the plumbing works were carried out in accordance with all applicable laws and regulations.
[34]3FASOC (n 3), 24 – 24 [34].
45The Particulars of that pleading refer back to paragraph 28 of the 3FASOC, which lists the alleged breaches by JDF in carrying out non-compliant plumbing work.
46The loss and damage caused by the alleged breach of statutory duty is set out at paragraph 35, and is said to be the same loss and damage as is claimed against JDF at paragraph 29 of the 3FASOC.
47In my view, the negligence claim is untenable. It is axiomatic that negligence is a fault-based tort.[35] As a matter of general principle, reasonable foreseeability of harm is a necessary but not sufficient condition for a conclusion that a duty is owed.[36] Similarly, the inquiry to identify what reasonable care required in a given case (sometimes referred to, perhaps somewhat inaptly, as the ascertainment of the or scope of any duty) is prospective;[37] that is, it is forward looking.
[35]D Rolph, J Varuhas et al, Balkin & Davis Law of Torts (Sixth edition, LexisNexis Australia, 2020), 250[7.31 (see especially fn 7) and see recently Bird v DP (2024) 98 ALJR 1349, 1358 [29], 1361-1362 [441 (Gageier CJ, Gordon, Edelman, Steward and Beech-Jones JJ), 1372 [83] (Gleeson J), 1395 [217] (Jagot J, quoting Woodland v Swimming Teachers Association [2014] AC 537, 122] (Sumption JSC)).
[36]Hawkins v Clayton (1988) 164 CLR 539, 556 (Brennan J), D RoIph, J Varuhas et al. Balkin & Davis Law of Torts (Sixth edition, LexisNexis Australia, 2020), 260[7.121].
[37]Dansar Pty Ltd v Byron Shire Council (2014) 89 NSWLR 1 , 34 (Meagher JA, Leeming JA agreeing); Swift v Wearing-Smith [20161 NSWCA [117] (Hoeben JA, Meagher JA agreeing, referring to Vairy v Wyong Shire Council (2005) 223 CLR 422).
48In the present matter, the plaintiff’s case appears to be that (it is alleged) Trevaskis issued the Compliance Certificate or Certificates,[38] he owed the plaintiff a duty to ensure that the plumbing works - completed earlier, before he was involved - were (relevantly) undertaken with reasonable skill and care[39], and he did not do so.[40]
[38]3FASOC (n 3), 14 [25].
[39]3FASOC (n 3), 24 [32(e)].
[40]3FASOC (n 3) 24 [34(a)].
49The fundamental difficulty with the plaintiff’s tort claim is that the plumbing works preceded the alleged issue of the Compliance Certificates. The proposition advanced by the plaintiff — that Trevaskis owed a duty and breached that duty at a time preceding the alleged act on his part that is said to give rise to the duty — is nonsensical as a matter of logic and basic principle.
50I agree with Trevaskis’ Counsel that for these reasons, the negligence claim has no real prospect of success and summary judgment ought to be entered on it.
51For the sake of completeness, I record that I have not considered if and how Trevaskis could be said to owe a duty of care to the plaintiff to avoid pure economic loss if different facts applied. The 3FASOC does not address any of the salient features to be considered before implying a duty to the plaintiff when Trevaskis’ relationship (if any) is with JDF. The plaintiff is in effect three persons removed from Trevaskis – her contract was with Lentelle, its contract was with JDF, JDF’s contract (if any) was with Trevaskis. If Trevaskis is a sub- or independent contractor to JDF, questions including vulnerability, reliance, assumption of responsibility on the part of the defendant, foreseeability and indeterminacy of liability would need to be addressed. However, these matters have not formed part of my decision. The negligence claim is fundamentally flawed based on the facts pleaded by the plaintiff.
Breach of statutory duty
52This claim is pleaded at paragraphs 30, 31, 33 and 35 of the 3FASOC. The plaintiff alleges that at all material times, Trevaskis was under a statutory duty to:
(a) supervise the carrying out of the plumbing works;
(b) ensure the plumbing works were carried out in a good and workmanlike manner; and
(c) ensure the plumbing works complied with all applicable laws and regulations.
53The duty is said to arise from:
(a) the role of each of JDF and Trevaskis, and the nature of the plumbing works;
(b) sections 221ZH and 221ZI of the Building Act (the obligation of a licensed plumber to give a Compliance Certificate); and
(c) regulation 14 of the Plumbing Regulations (a licensed plumber must carry out plumbing work in a good and workmanlike manner, or if supervising work, must ensure that the person who is being supervised carries out the work in a good and workmanlike manner).
54At paragraph 31 of the 3FASOC the plaintiff alleges that this is a statutory duty which Trevaskis owed to her. The Particulars to that paragraph state:[41]
Section 221A of the Building Act 1999 (Vic) provides that the purpose of Part 12A is to regulate plumbing work with the aim of ensuring that it is carried out safely and competently.
The Ministerial Order requires as a condition of being licensed as a plumber under Part 12A, that a plumber take out and maintain insurance that indemnifies them for liability for loss incurred by a building owner (such as the Owner) as a result of inter alia any defects in the plumbing work.
[41]3FASOC (n 3), 23 [31].
55At paragraph 33 the plaintiff alleges that in breach of his statutory duty to her, Trevaskis did not:
(a) ensure that the Plumbing Works were carried out in a good and workmanlike manner; and
(b) ensure that the Plumbing Works complied with all applicable laws and regulations.
56The Particulars of that pleading refer back to paragraph 28 of the 3FASOC, which lists the alleged breaches by JDF in carrying out non-compliant plumbing work.
57The loss and damage caused by the alleged breach of statutory duty is set out at paragraph 35, and is said to be the same loss and damage as is claimed against JDF at paragraph 29 of the 3FASOC.
58The elements of the civil action for breach of statutory duty can be summarised as follows:[42]
(a) the intention of Parliament to allow an action;
(b) the plaintiff must fall within the "limited class" of the public for whose benefit the statutory provision was enacted;
(c) the damage suffered must also fall within the intended scope of the statute;
(d) the obligation under the statute was imposed on the defendant;
(e) the defendant must have breached the statute; and
(f) that breach must have caused actual damage to the plaintiff.
[42]C Sappideen, P Vines et al, Fleming's The Law of Torts (Eleventh edition, LawBook Co. 2024), 478[16.10]. See also, D Rolph, J Varuhas et al, Balkin & Davis Law of Torts (Sixth edition, LexisNexis Australia, 2020), 631 [16.16], Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 (Kitto J), Byrne v Australian Airlines Ltd (1995) 185 CLR 410.
59In his submission, Trevaskis does not say that the elements at (a) – (c) above are not arguable. He concedes that an obligation generally of the kind alleged may exist, and that it may exist for the benefit of a class of that includes the plaintiff. However his application relies on the submission that the plaintiff cannot satisfy the matters in subparagraphs (d), (e) and (f).
60At paragraph 30 of the 3FASOC the plaintiff materially alleges that Trevaskis was obliged to ensure that the plumbing works were carried out:
(a) in a good and workmanlike manner,[43] which was breached;[44]
(b) in accordance with "all applicable laws and regulations",[45] by a plumber licensed to carry out the work or by a registered plumber under the supervision of a plumber who was licensed to carry out the work,[46] which was breached.[47]
[43]3FASOC (n 3), 22 [30(b)].
[44]Ibid, 24 [33)a)].
[45]Particulars of which are found at 3FASOC (n 3), 18 – 20 [28].
[46]3FASOC (n 3), 22 [30(c)].
[47]Ibid, 24 [33(b)].
61The “applicable laws and regulations” appear from the particulars given at paragraph 30 of the 3FASOC, to be reg 14 of the PlumbingRegulations and s 221ZH and s 221ZI of the Building Act. The difficulty with the allegation is that the Building Act sections do not impose a duty in the terms pleaded. Section 22ZH sets out when a compliance certificate must be given. Section 22ZI sets out the details which must appear on a compliance certificate. Section 221ZJ is not mentioned in the 3FASOC, but may be relevant as it states that a licensed plumber must not sign a compliance certificate if he or she knows, or ought reasonably to know, that it contains nay misstatement of fact.
62Taking s 221ZI of the Building Act at its broadest, and reading subsection 221ZI(I)(d) with the proscription in s 221ZJ, the licensed plumber's obligation is relevantly not to sign a compliance certificate if the plumber knows, or ought reasonably to know, that the work does not, in fact, comply with the plumbing laws. Thus, any contravention arises from the act of signing the certificate (and thereby stating that the plumbing work with the plumbing laws) if the plumber knows or ought reasonably to know otherwise. No contravention arises from any omission to ensure that the plumbing work does comply.
63Further, assuming these statutory provisions do create some private right in the plaintiff for such a contravention, self-evidently, the private right can only accrue at the earliest when the certificate is signed. Here, that is alleged to have occurred well after the events that are said to give rise to the plaintiff's loss. Thus, the alleged breach (properly conceived) cannot, on any view, have caused the plaintiff’s loss.
64As for the duty alleged in reg 14(2)(a), the regulation is in the following terms:[48]
(2) A licensed plumber who is supervising the carrying out of plumbing work within the meaning of section 221B(3) of the Act must ensure that the person who is being supervised—
(a) carries out the work in a good and workmanlike manner; and
(b) has regard to any written direction, instruction, specification or requirement of a manufacturer when carrying out plumbing work.
[48]Plumbing Regulations 2018 (Vic) reg 14(2).
65Trevaskis concedes that there may be an obligation imposed by this regulation. However, it is not arguable that such an obligation would have applied to him in relation to the plumbing works, as they were carried out before any alleged involvement on his part. The regulation applies to a licensed plumber “who is supervising the carrying out of plumbing work.” The plaintiff pleads that Trevaskis did not supervise the carrying out of plumbing work. Accordingly this regulation, on its plain meaning, has no relevance.
66The plaintiff has not suggested that the concept meant by the phrase "is supervising the carrying out of plumbing work" is broader than the natural and ordinary meaning of the term. Nor has she suggested that it includes a plumber who has not in fact supervised the carrying out of plumbing work, but who has signed a certificate stating that he has.
67If the plaintiff were to put this argument, she would need to address the principles of statutory construction. The general principles relating to the interpretation of Acts of Parliament are equally applicable to the interpretation of subordinate legislation.[49] Those general principles are well known:[50]
The modern approach to statutory interpretation on the text of a provision, considered in context — including the Act as a whole, linguistic canons of construction, the purpose of the provision and extrinsic material — and having regard to accepted presumptions of statutory interpretation. It may be summarised as follows.
First, the central focus is on the text of a provision. As the High Court has said: "'This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text'. So must the task of statutory construction end."[51] Consideration of the text directs attention to the natural and ordinary meaning of the words of the provision, ie the meaning of the provision read as a whole.
Secondly, the text of a provision must be considered in its context. That is required whether or not the text, considered on its own, appears ambiguous. The context of a provision includes the statute as a whole. Further, the context of a provision includes the mischief it was designed to remedy or, put another way, its purpose. […] Thus, the proposition that, not only must the task of statutory construction begin with the text, but "[s]o must the task of statutory construction end" does not indicate that the court must consider only the grammatical meaning of the text and nothing else. Rather, it emphasises that the reason for considering the context is, and is only, to assist in fixing the meaning of the text.
[…]
It is impermissible to attach to a statutory provision a meaning which the words of the provision cannot reasonably bear. Ordinarily, the words must be reasonably open on the natural and ordinary meaning of the words read in the context in which they appear. Where more than one such meaning is reasonably open there is a "constructional choice". To adopt a meaning which is not reasonably open on the natural and ordinary meaning of the words used read in the context in which they appear is not interpretation, which is a judicial function, but amendment, which is a legislative function. [...]
[49]P Herzfeld and T Prince, Interpretation (Third edition, Lawbook Co, 2024), 381 [14.101 (all but one footnote omitted). It has also been said that subordinate legislation should be construed bearing in mind that often it will not have been drafted with the same care as an Act of Parliament, in which a more liberal approach may be warranted when it comes to departing from the ordinary meaning of words if that is to avoid anomalies: P Herzfeld and T Prince, Interpretation (Third edition, Lawbook Co, 2024), 383 [14.401 (citing authorities including Environment Protection Authority v Orchard Holdings (NSW) Pty Ltd (in liq) (2014) 86 NSWLR 499, [441-146] (Leeming JA, Bathurst CJ and McColl JA agreeing)).
[50]P Herzfeld and T Prince, Interpretation (Third edition, Lawbook Co, 2024), 16-17 [1 .160] (all but one footnote omitted).
[51]Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, [39] (the Court), quoting Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 46 [47] (Hayne, Heydon and Crennan JJ).
68Further:
The words of a statute should prima facie be given their "natural and ordinary meaning.[52]
[52]P Herzfeld and T Prince, Interpretation (Third edition, Lawbook co, 2024), 25 [2.10] (citing many High Court authorities).
69Counsel for Trevaskis also points out that the tense used in legislation to identify things or impose obligations will be used by the courts in interpreting the legislation.[53]
[53]D Pearce, Statutory Interpretation in Australia (Ninth edition, LexisNexis Butterworths, 2019), 206 14.80] and Annexure A at 458, referring to cases including the instructive decision in BGM16 v Minister for Immigration and Border Protection (2017) 252 FCR 97, (Mortimer and Wigney JJ). See also Envestra Ltd v Federal Commissioner of Taxation (2008) 169 FCR 309 [341 (Mansfield J: "l think the use of the present tense points only to accounting standards which in fact apply in the determination of the accounting liabilities of the joining entity at the joining time.").
70In the present matter, the tense used in the legislation to impose the obligation is the present tense. The obligation is imposed on a licensed plumber "who is supervising the carrying out of plumbing work…"[54]
[54]Plumbing Regulations 2018 (Vic) reg 14(2)(a).
71The natural and ordinary meaning of this is that the plumber must, as a matter of fact, be supervising plumbing work for the obligation to be assumed. In this case, it is not alleged that Trevaskis did in fact supervise the work. Instead, it is in fact alleged (and admitted) that he did not supervise the work.[55] Therefore, for the plaintiff’s case based on this provision to be arguable, there has to be something that militates in favour of reg 14(2)(a) having something other than its natural and ordinary meaning; and in particular, having the effect that a person is taken to supervise plumbing work for the purposes of that regulation even if they did not, in fact, supervise plumbing work, but signed a certificate to the effect that they did.
[55]3FASOC (n 3), 25 [37(a)].
72I agree with Trevaskis’ submission that there is nothing in the text of reg 14(2)(a) of the Plumbing Regulations, the balance of the regulations, or the Act itself that provides a basis for reading the regulation as having anything other than its natural and ordinary meaning, let alone a meaning that has the effect necessary for the plaintiff's claim to be arguable.
73For these reasons, the claim based on a breach of statutory duty has no real prospect of success and summary judgment ought to be entered on it.
The plaintiff’s arguments in response
74The plaintiff’s submissions did not engage with Trevaskis’ arguments. Instead she focussed on facts. For example, she stressed that Trevaskis must have known or been complicit in JDF using his licence number to lodge the Certificate of Compliance. She explained that she was not even aware of the Certificate of Compliance until she started asking new builders to take over the project, and they asked her for any certificates. She said she was told by the building surveyor that they would not issue an occupancy permit without compliance certificates. She then asked Lentelle for the plumbing compliance certificates and was eventually provided with them. She also focussed on the VBA’s inquiries into Trevaskis’ and JDF’s conduct. None of those facts are relevant to the application before me, as Trevaskis conceded (for the purposes of the application) that he provided the two versions of the Compliance Certificates in 2023.
75I asked the plaintiff several times during the hearing to explain how she said that Trevaskis’ conduct in issuing the Compliance Certificates in 2023, or in making the Trevaskis Representations in 2023, had caused her to suffer loss and damage, when the defective plumbing work had been carried out in December 2021, and Trevaskis had had no role in that work. She was not able to provide a coherent answer that question.
76The agreed facts are that the defective plumbing works was caused by JDF or Lentelle in 2021. Any loss or damage suffered by the plaintiff as a result of the defective plumbing was caused by JDF or Lentelle at that time. This is what the plaintiff pleads as her loss and damage in the 3FASOC, where each cause of action pleaded refers back to paragraph 29 of the 3FASOC, which is the loss alleged to have been caused by JDF. Any order for damages will be made against the entity or entities which carried out the defective work (assuming they have a legal liability to the plaintiff). The only possible conclusion to be reached is that Trevaskis’ involvement in 2023 has no bearing on the plaintiff’s loss and damage.
77Although the plaintiff did not provide a counterfactual to her claim, I asked the plaintiff if she was saying that Trevaskis should not have issued the Compliance Certificates.
78Her answer was that she did not know of the plumbing defects until 2023. She said it was clear that Fenton (of JDF) and Trevaskis had a relationship. She was in Queensland at all times, as the borders were closed due to the Covid19 pandemic. She said she had no idea who did what work.
79The plaintiff said that she is not able to get an occupancy permit for her dwelling without a valid Compliance Certificate. So she holds Trevaskis liable for issuing a “fraudulent” (this was her description) Certificate.
80The plaintiff’s contention that she could not obtain an occupancy permit because of Trevaskis’ actions is misconceived. Her building is not built. All that was constructed by Lentelle was the underground plumbing, the slab and some walls. The plaintiff said she intends to engage a new builder to rectify and complete the development, rather sell the land. She said that the slab and walls will need to be demolished to remove and replace the plumbing. The building work (including new belowground plumbing) will then start again. The new works will require an amended or new building permit. The new plumbing works will come with compliance certificates. It is those certificates which will be used to obtain an occupancy permit. Whether or not Trevaskis issued Compliance Certificates in 2023 is irrelevant to the plaintiff obtaining an occupancy permit in relation to the works of the new builder.
81Similarly, the plaintiff’s contention on the counterfactual position is illogical. Obviously if Trevaskis had not issued a compliance certificate she would not be able to obtain an occupancy permit. She could not explain how that outcome was different to the outcome she now has.
82She then said that the building work was stopped by the VBA when it found out in late 2022 that no Compliance Certificates had been issued for the plumbing work. That argument is not supported by the agreed facts, which are that all works had stopped since she terminated the building contract with Lentelle in May 2022.
83The plaintiff then said that the building surveyor “suspended” the building permit due to the “fraudulent” Compliance Certificate. Again, that submission cannot be correct factually, as the building works had stopped when she terminated the building contract with Lentelle in May 2022. There is no evidence that the building surveyor has suspended the building permit at any time. In any event, it is not possible for the building surveyor to have suspended the building permit because of the “fraudulent” Compliance Certificate any time before February 2023, when it came into existence. Even if all those matters are proven, the plaintiff’s loss and damage was incurred in 2021, not in 2023. The “suspension” of the building permit because of Trevaskis’ actions in lodging the Compliance Certificate, if it occurred at all, did not cause the plaintiff’s loss and damage. Further, the counterfactual position is equally hopeless. If Trevaskis had not lodged the Compliance Certificate, would the building surveyor have suspended the building permit? If so, what is the plaintiff’s loss and damage?
84She then said that if Trevaskis had not issued the Compliance Certificates, the defective plumbing work would have discovered when it was checked by a camera test. She provided no details of the camera test – if it was a hypothetical test, when it would have been carried out and by who and for what purpose; or if it was an actual test, did she mean the testing done by the independent experts in 2023? Again, it is impossible to understand the contention.
85Lastly and most significantly, she said that if Trevaskis had not issued a Compliance Certificate, “we would be in a very different position.” I asked her to explain what she meant by that comment. She said that she “wouldn’t be dragging Trevaskis in to the proceeding.” She said the only claim she is making against him is for “false, misleading and deceptive conduct because the Compliance Certificate exists.” She repeated that is why he is in the proceeding.
86From those comments it appears that the plaintiff’s counterfactual position is that if Trevaskis had not issued the Compliance Certificates, she would not have joined him to the proceeding. That is an insufficient reason to keep him in the proceeding to face the costs and disruption of a trial.
Conclusion on the defendant’s application
87For the reasons previously stated, the plaintiff’s pleaded claims against Trevaskis are fundamentally flawed. There is no proper basis shown for the pure economic loss claims, either a breach of duty to take reasonable care, or beach of statutory duty. There is also no proper basis for the ACL misleading or deceptive conduct claim.
88Although this is an interlocutory application to determine the claims before trial, the plaintiff has had her day in Court. On the facts as pleaded by her, which were confirmed in her evidence and submissions, and which are conceded by Trevaskis, she has not been able to show she has any arguable legal claim against him. Her claims are untenable. There is no utility in allowing the claims to proceed to trial, where on the plaintiff’s best case scenario, she cannot succeed against Trevaskis.
89To do so would put Trevaskis to the cost and burden of defending untenable claims against him, including preparing for and participating in a lengthy trial.
90There is also no utility in allowing the plaintiff a further opportunity to amend her pleading. She has not shown she has any arguable cause of action, and because of the facts she relies on, it appears she will not be able to do so. The facts will not change even if she is given a further opportunity to plead.
91In all of the circumstances and for the reasons previously stated, I am satisfied in accordance with s 63 of the CPA, that the claims have no real prospect of success. There is no need to consider s 64. I will strike out the plaintiff’s claims against Trevaskis.
92I will follow the approach of Delany J in The Uniting Church and strike out paragraphs 30 – 40 of the 3FASOC and the Prayer for Relief where it refers to Trevaskis. As a result, there are no claims on foot against him and he need take no further part in the proceeding (I note that JDF has not pleaded a defence involving him).
93I will also order that the plaintiff is not permitted to re-plead a claim against Trevaskis unless and until she is able to satisfy the Court that there is a sound basis to support claims proposed to be made against him. This is in line with approach of The Uniting Church,[56] where, having found there was no proper basis for the claims alleged, Judd J ordered that the liquidator not be permitted to re-plead unless and until he could satisfy the court that there was a sound basis to support the claims made.
[56][2011] VSC 325.
94Further, as Trevaskis has succeeded in obtaining the relief claimed in his summons, I propose to order that the plaintiff pay Trevaskis’ costs of and incidental to the proceeding, including the costs of the summons and any reserved costs on a standard basis, to be taxed if not agreed. If a party seeks a different costs order, they may make submissions and I will deal with them on the papers.
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Certificate
I certify that these 27 pages are a true copy of the ruling of her Honour Judge Kirton delivered on 6 March 2025.
Dated: 6 March 2025
Jessica Meaney
Associate to Her Honour Judge Kirton
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