JUDGE:	CAMERON J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 August 2018
DATE OF JUDGMENT:	29 August 2018
CASE MAY BE CITED AS:	Pegasus Building Pty Ltd v Curlis; Laghaien v Curlis
MEDIUM NEUTRAL CITATION:	[2018] VSC 484

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BUILDING AND PLANNING – Appeal from Magistrates’ Court – Builder found guilty of undertaking building works beyond scope of building and planning permits – Whether building and planning permits impliedly authorised works – Works claimed to be necessary for structural integrity – Interpretation of permits – Implied authority – Building Act 1993 s 61 – Planning and Environment Act 1987 s 126(1).

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr T L Bevan	Franzese & Associates
For the Respondent	Ms S Porritt with Mr P Smallwood	Beck Legal

HER HONOUR:

What are these cases about?

The question in these cases is whether the removal of the roof over the front (or western) section of the property at 10 Taylor Street, Fitzroy North, described in Certificate of Title Plan 116283 Volume 09666 Folio 124 (‘the Property’), in the course of building works, contravened the relevant planning and building permits issued in respect of the works on the Property.

In proceedings in the Magistrates’ Court, it was found that it did.

That decision is now the subject of an appeal to this Court.

Background

There are two proceedings before the Court. Pegasus Building Pty Ltd (‘Pegasus’) is the appellant in proceeding number S CI 2018 00020. Soheil Laghaien (‘Laghaien’) is a registered builder and the sole director of Pegasus, and is the appellant in proceeding number S CI 2018 00021. I will refer to Pegasus and Laghaien collectively as ‘the appellants’. Each proceeding raises substantially identical issues. Accordingly, the matters were heard as one. I indicated to the parties that I would deliver one judgment in respect of both proceedings.

At this point, it is convenient to explain the three sections of the roof over the Property. The first section of the roof is the western section, facing the street, which extends as far as the chimney. This section of the roof, which I will refer to simply as ‘the Roof’, is the subject of this appeal. The second section of the roof is the section over the rear of the building which extends eastwards from the chimney to the back of the original footprint of the Property. I will refer to this as the ‘second section of the roof’. The third section of the roof, which is not relevant to this proceeding, is the new roof to be constructed over the addition to the Property, being the two storey extension. Whilst these proceedings primarily concern only the Roof, the respondent maintained arguments…

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 Pegasus Building Pty Ltd v Curlis

Details

AGLC: Pegasus Building Pty Ltd v Curlis; Laghaien v Curlis [2018] VSC 484
Case: [2018] VSC 484
Decision Date: 29 August 2018

CaseChat Overview and Summary

The case of Pegasus Building Pty Ltd v Curlis involved an appeal against a decision by the Magistrates' Court, which had found the builder, Curlis, guilty of undertaking building works beyond the scope of the building and planning permits. The dispute centred on whether the building and planning permits implicitly authorised the works performed by Curlis, which he claimed were necessary for the structural integrity of the building. The matter was brought before the court to determine the interpretation of the permits and to establish whether the builder had implied authority to undertake the additional works.

The legal issues at the heart of the case included the interpretation of the relevant statutory provisions, specifically sections 61 of the Building Act 1993 and section 126(1) of the Planning and Environment Act 1987. The court was required to ascertain whether the permits implicitly authorised the works in question, and if so, to what extent. Furthermore, the court had to determine whether the works performed by Curlis were necessary for the structural integrity of the building, and whether these works fell within the scope of the permits. The builder argued that the permits impliedly authorised the works, while the opposing party contended that the works went beyond the scope of the permits.

The court carefully examined the terms of the permits and the statutory provisions to determine whether there was any implied authority for the works performed. It was found that the permits did not explicitly or implicitly authorise the works carried out by Curlis, and that the works went beyond the scope of the permits. The court held that the builder was not entitled to rely on an implied authority to undertake the works, and that the permits did not authorise the works claimed to be necessary for structural integrity. The court further found that the builder had failed to obtain the necessary approvals and permits before undertaking the works. Consequently, the decision of the Magistrates' Court was upheld.

As a result of the court's decision, Curlis was found to be in breach of the building and planning permits. The court did not provide specific orders in the judgment, but it is likely that the builder will be required to obtain the necessary approvals and permits for the works carried out, or face potential fines, penalties, or other legal consequences.

Orders