Presser v Ocean View Properties Pty Ltd - [2006] VSC 143

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
BUILDING CASES LIST

No. 6228 of 2005

DANIEL PRESSER AND EVA PRESSER	Plaintiffs
v
OCEAN VIEW PROPERTIES PTY LTD (ACN 081 330 752)	Defendant
- and -
ONE BEACH STREET PTY LTD (ACN 085 384 578)	First Third Party
- and -
GROCON PTY LIMITED (ACN 006 772 238)	Second Third Party/Fourth Party
- and -
AIRTHRUST PARQUETRY FLOORING PTY LTD (ABN 29 007 343 339)	First Fifth Party
-and-
KATSALIDIS PTY LTD (ACN 007 368 149)	Second Fifth Party

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JUDGE:	HABERSBERGER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 MARCH 2006
DATE OF JUDGMENT:	12 APRIL 2006
CASE MAY BE CITED AS:	PRESSER v OCEAN VIEW PROPERTIES PTY LTD
MEDIUM NEUTRAL CITATION:	[2006] VSC 143

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Contract – Application for a stay of proceeding pursuant to s.57 of the Domestic Building Contracts Act 1995 - Sale by developer of penthouse apartment in residential complex – Defective parquetry flooring – Subsequent Settlement Agreement between purchasers and developer for developer to rectify outstanding defects – Proceeding by purchasers against developer for breach of Settlement Agreement – Addition of parties, including builder, sub-contractor and architect – Whether proceeding was an "action arising wholly or predominantly from a domestic building dispute" – ss.3, 5, 54(1) and 57 of the Domestic Building Contracts Act 1995.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr J.M. Forrest	Clayton Utz
For the Defendant	Mr P.C. Greenham	Minter Ellison
For the First Third Party	Mr A. Ferguson	McMahon Fearnley Solicitors
For the Second Third Party/Fourth Party	Mr M.G. Roberts	Deacons
For the First Fifth Party	No appearance
For the Second Fifth Party	Mr M.T. Settle	Charlseworth Josem

HIS HONOUR:

The Application

This is an application by Grocon Pty Ltd ("Grocon"), the fourth party and second third party, to stay this proceeding pursuant to s.57 of the Domestic Building Contracts Act 1995 ("the Act") on the basis that it is an "action arising wholly or predominantly from a domestic building dispute" (s.57(1) of the Act). Grocon submitted that pursuant to s.57(2) of the Act the proceeding must be stayed because the action could be heard by the Victorian Civil and Administrative Tribunal ("the Tribunal") and the Court had not heard any oral evidence concerning the dispute itself. The application was supported by an affidavit sworn on 9 March 2006 by Steve Coker, a Project Manager employed by Grocon. Although other possible discretionary grounds for staying the proceeding were mentioned in Mr Coker's affidavit, the argument before me, as I understood it, was limited to the ground set out above.

Background

In their statement of claim indorsed on the Writ filed on 25 May 2005, the plaintiffs, Daniel Presser and Eva Presser, pleaded that by an agreement in writing dated 16 November 1999 made between them and the defendant, Ocean View Properties Pty Ltd ("Ocean View") ("the Construction and Sale Agreement"), Ocean View agreed to develop and sell to them the land known…

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 Presser v Ocean View Properties Pty Ltd

Details

AGLC: Presser v Ocean View Properties Pty Ltd [2006] VSC 143
Case: [2006] VSC 143
Decision Date: 12 April 2006

CaseChat Overview and Summary

The matter of Presser v Ocean View Properties Pty Ltd involved a dispute between the purchasers of a penthouse apartment and the developer, Ocean View Properties. The purchasers alleged that the penthouse apartment, which they had purchased from the developer, was sold with defective parquetry flooring. Following the sale, a Settlement Agreement was executed between the purchasers and the developer, under which the developer agreed to rectify the outstanding defects in the apartment. The purchasers subsequently commenced proceedings against the developer for breach of the Settlement Agreement. The developer applied to the court for a stay of the proceedings under section 57 of the Domestic Building Contracts Act 1995, arguing that the dispute arose wholly or predominantly from a domestic building dispute and thus fell within the scope of the Act.

The court was required to determine whether the proceeding was an "action arising wholly or predominantly from a domestic building dispute" within the meaning of section 3 of the Act. The court also had to consider whether the proceeding was subject to the dispute resolution provisions of the Act under section 5 and whether the court had the power to stay the proceeding under section 57 of the Act. The court had to examine the nature and scope of the dispute between the parties and consider whether it fell within the definition of a domestic building dispute under the Act.

The court held that the proceeding was an "action arising wholly or predominantly from a domestic building dispute" within the meaning of section 3 of the Act. The court found that the primary dispute between the parties was about the quality of the work carried out by the developer in relation to the parquetry flooring in the penthouse apartment. The court noted that the addition of other parties, including the builder, sub-contractor and architect, did not alter the nature of the dispute, which remained a domestic building dispute. The court also held that the proceeding was subject to the dispute resolution provisions of the Act under section 5 of the Act and that the court had the power to stay the proceeding under section 57 of the Act. Accordingly, the court granted the developer's application for a stay of the proceeding.

The court ordered that the proceeding be stayed for a period of six months, during which time the parties were required to attempt to resolve the dispute through the dispute resolution process provided for under the Act. The court also ordered that if the parties were unable to resolve the dispute within the six-month period, the proceeding could be resumed subject to the parties providing the court with a certificate from the dispute resolution body confirming that the dispute had not been resolved.

Orders