Prestige Home Builders Pty Ltd v Bartolic
[2018] VSC 98
•6 March 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 05029
| PRESTIGE HOME BUILDERS PTY LTD (ACN 081 377 639) | Plaintiff |
| v | |
| STEPHEN BARTOLIC | First Defendant |
| VASILKA BARTOLIC | Second Defendant |
| TIM SMITH | Third Defendant |
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JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 March 2018 |
DATE OF RULING: | 6 March 2018 |
CASE MAY BE CITED AS: | Prestige Home Builders Pty Ltd v Bartolic & ors |
MEDIUM NEUTRAL CITATION: | [2018] VSC 98 First revision: 7 March 2018 |
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PRACTICE AND PROCEDURE – Stay – Application for stay of VCAT orders that plaintiff pay monies in respect of construction contract to the defendants pending determination of appeal – VCAT stay order conditional upon plaintiff paying monies into VCAT Small Claims Trust Account – VCAT stay order inoperative – Whether special circumstances arise – Whether estoppel arises – Application refused – Tomlinson v Ramsey Food Processing Pty Limited 256 CLR 507 – Maher v Commonwealth Bank of Australia [2008] VSCA 122 – Imerva Corporation Pty Ltd v Kuna [2017] VSCA 168 – Supreme Court (Miscellaneous Civil Proceedings) Rules 2008, r 4.04 – Supreme Court (General Civil Procedure) Rules 2015, r 64.39, 66.16 – Domestic Building Contracts Act 1995, ss 40(2), 40(5).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Twigg QC with Mr N Wallwork | DSA Law |
| For the First and Second Defendants | Mr M Settle | HDL Legal and Consulting |
HER HONOUR:
Introduction
Prestige Home Builders Pty Ltd (‘Prestige Home Builders’) seeks leave to appeal decisions of the Victorian Civil and Administrative Tribunal (‘the Tribunal’). The Tribunal proceedings concerned a construction dispute. Prestige Home Builders wishes to appeal orders requiring it to pay monies to Mr and Mrs Bartolic. After proceedings in this Court commenced, Prestige Home Builders obtained a stay in the Tribunal that was conditional upon it paying monies into the Tribunal’s trust account. It did not make those payments and accordingly the stay did not become effective. It has now made an application for a stay in this Court. That application is opposed by Mr and Mrs Bartolic. The Court is informed that they have caused a statutory demand to be issued against Prestige Home Builders and that there is an application to set it aside.
This ruling concerns whether or not a stay should be ordered. The questions for determination are as follows.
1. Are there special circumstances warranting a stay?
2. Are Prestige Home Builders estopped from making this stay application?
3. Should a stay be ordered?
Background
Mr and Mrs Bartolic issued proceedings in the Tribunal alleging, amongst other things, that Prestige Home Builders breached s 40 of the Domestic Building Contracts Act 1995 (‘the DBC Act’). They sought the return of monies paid in respect of a construction contract. They also sought orders and costs.
On 31 July 2017, the Tribunal made orders that Prestige Home Builders pay Mr and Mrs Bartolic the sum of $257,500. Those orders also gave Mr and Mrs Bartolic the opportunity to make an application for interest and costs.
Prestige Home Builders now seeks a stay in respect of the order that it pay the sum of $257,500.
On 22 September 2017 (with reasons given on 1 December 2017), the Tribunal made the following further orders:
1. First respondent [Prestige Home Builders] must pay to the applicants [Mr and Mrs Bartolic] damages in the nature of interest assessed at $87,760.60.
2. The first respondent must reimburse to the applicants fees paid by the applicants in the proceeding totalling $1,787.90.
3. The first respondent must pay to the applicants costs assessed at $49,640.
Prestige Home Builders also seeks a stay in relation to the three orders above.
On 12 December 2017, Prestige Home Builders filed an originating motion in this proceeding. The originating motion seeks leave to appeal the orders made in the Tribunal, an extension of time in respect to appeal the orders made on 31 July 2017, costs and, the following:
An order pursuant to r 4.04 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (Vic) that the orders made 31 July 2017 and 1 December 2017 be stayed pending determination of this originating motion and any subsequent appeal.
A summons filed by Prestige Home Builders on 19 December 2017 sought a stay in the same terms. The summons was supported by an affidavit sworn by the sole director of Prestige Home Builders, Mr Riste Jankulovski, sworn 13 December 2017 (‘the first Jankulovski affidavit’) and an affidavit sworn 23 February 2018 (‘the second Jankulovski affidavit’).
On 8 January 2018, the Tribunal made the following orders (‘the stay order’):
1.Pursuant to section 149(1) of the Victorian Civil and Administrative Tribunal Act 1998 the orders of the Tribunal dated 31 July 2017 and 22 September 2017 are stayed pending the hearing and determination of the first respondent’s application dated 11 December 2017 to the Supreme Court of Victoria for leave to appeal from those orders.
2.Pursuant to section 149(2) of the Victorian Civil and Administrative Tribunal Act 1998 as a condition of granting the stay, the first respondent must pay $257,500 into the VCAT Small Claims Trust Account Westpac BSB 033-222 Account Number 103380 by 4pm on 22 January 2018.
3.The first respondent must provide to the Tribunal and the solicitors for the applicants a copy of the receipt obtained upon making the payment referred to in order 2.
4. No order as to costs.[1]
[1]Exhibit ‘SKR-1’ to the affidavit of Sasha Kate Roberts affirmed on 27 February 2018.
It is common ground between the parties that Prestige Home Builders has not paid the monies into trust in response to Order 2 above. Accordingly, given that Prestige Home Builders has not met the condition of granting the stay, it did not become operative.
Mr and Mrs Bartolic oppose the stay. They rely upon the affidavit of their solicitor, Sasha Kate Roberts, affirmed on 27 February 2018 (‘the Roberts affidavit’).
On 14 February 2018, orders were made setting down the leave to appeal, and appeal if leave is granted, for hearing on 15 October 2018.
Are there special circumstances warranting a stay?
Prestige Home Builders says that there are special circumstances warranting the grant of a stay for three reasons.
Firstly, it submits the legal consequence of the factual findings of the Tribunal is that Prestige Home Builders has committed a criminal offence and may be exposed to penalty beyond that ordered by the Tribunal. It says, amongst other things, the Tribunal did not consider the nature of the charge reportedly found to have been proven, nor the proper standard to which it must be satisfied of the elements constituting the charge or the proper operation of s 40(5) of the DBC Act, and that the second respondent in the Tribunal proceedings, a Mr Smith, did not give evidence. It submits that ss 40(2) and (3) of the DBC Act provide that where a court finds a charge proven against the builder, a refund may be ordered under s 40(5). Those sections provide for penalties in respect of breaches of the ‘Limitation and Progress Payments’ scheme. The penalties in ss 40(2) and (3) are criminal in nature: Imerva Corporation Pty Ltd v Kuna (‘Imerva’).[2]
[2][2016] VSC 461, [24] (McDonald J) and upheld on appeal [2017] VSCA 168, [55]-[58], [90] (Tate JA).
Secondly, Prestige Home Builders submits that the Tribunal failed to consider the proper operation of s 40(5) of the DBC Act, the provision under which a ‘refund’ can be ordered by a court of monies paid in breach of the ‘limitations on progress payments’ scheme contained within s 40 of the DBC Act. It says that it appears from the relevant passage in the Tribunal’s reasons that it was not aware of section 40(5), notwithstanding it is the provision which empowers the Tribunal to order that monies demanded and retained be refunded. It says the conclusion of the Tribunal that it was fair that a refund be ordered demonstrates the manner in which it misapprehended the task before it.
Prestige Home Builders submits that there is a public interest in judicial determination of s 40(5) for the purpose of establishing a proper understanding of how s 40(5) operates to affect the relationship between owners and builders. It will add to the public benefit by having a better understanding of how those sections operate.
Thirdly, Mr and Mrs Bartolic have served a statutory demand on Prestige Home Builders, relying on the orders the Tribunal made on 31 July 2017. On 15 December 2017, Prestige Home Builders applied to have that statutory demand set aside. The application is pending and is set for directions on 7 March 2018. It is opposed by the Mr and Mrs Bartolic. In the absence of a stay it is possible, Prestige Home Builders says, that the Court will refuse that application to set aside the statutory demand.
Prestige Home Builders refers to a potential winding up application that it says the Mr and Mrs Bartolic have indicated they will pursue in the event the application to set aside is refused. It says that while it is confident it can successfully oppose any such application on the basis that there is a real dispute as to the debt purportedly owed, it is in the interests of the overarching purpose of the Civil Procedure Act 2010 (‘the CPA’) being the just, efficient, timely and cost-effective resolution of the real issues in dispute that the parties not incur the expense of engaging in those insolvency proceedings until the present application for leave to appeal and any appeal is determined. To give effect to the overarching purpose in accordance with s 8 of the CPA, Prestige Home Builders says the Court must order there be a stay.
On the other hand, Mr and Mrs Bartolic say that the draft notice of appeal does not refer to a finding of beyond reasonable doubt in respect of whether the charge was proven.[3]
[3]Exhibit ‘RJ-4’ to the first Jankulovski affidavit.
Analysis
It was common ground between the parties that, although this application is made under r 4.04 Supreme Court (Miscellaneous Civil Proceedings) Rules 2008, the authorities concerning stays under the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’) are relevant.[4] In particular, the principles in Maher v Commonwealth Bank of Australia are applicable.[5] I adopt those principles which are as follows:
[4]Rules 64.39, 66.16.
[5][2008] VSCA 122 (Dodds-Streeton JA).
In Cellante and Ors v G Kallis Industries Pty Ltd (‘Cellante’), Young CJ (with whom Brooking J agreed), cited with approval the observation of Mahoney JA (with whom Moffit P and Glass JA agreed) in Re Middle Harbour Investments Ltd (in liq) that:
“…where an applicant for a stay has not demonstrated an appropriate case but has left the situation in the state of speculation or of mere argument, weight must be given to the fact that the judgment below has been in favour of the other party.”
Young CJ concluded that an applicant for a stay under Rule 66.16 must show special or exceptional circumstances to take the case out of the general rule that an appeal does not operate as a stay.
The Court has a wide discretion, which is not circumscribed by rigid rules. It should take into account all the circumstances of the case.
In Scarborough’s v Lew’s Junction Stores Pty Ltd (approved in Cellante), Adam J recognized that special circumstances might exist where a successful appellant would be deprived of the fruits of the appeal if a stay of execution were not granted. In such a case, the appeal might be rendered nugatory.
In Cellante, Young CJ stated that special circumstances would ‘exist where for whatever reason, there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed’.
An appeal could be rendered nugatory in that sense in a variety of ways. The test could be satisfied where a defendant appeals and there is a real risk that the plaintiff would remove the proceeds of the judgment from the jurisdiction. Similarly, special circumstances may be recognised where, for example, although the respondent is solvent, the subject matter of the appeal is, in substance, irreplaceable.
The prospect that the appeal may be rendered nugatory must be balanced against the principle that the successful party is entitled to the fruits of the judgment. A stay should not be granted unless there is at least an arguable ground of appeal, although otherwise speculation as to the ultimate prospects of success is usually inappropriate. [6]
[6]Maher v Commonwealth Bank of Australia [2008] VSCA 122 [21]-[27].
I now consider Prestige Home Builder’s submission about special circumstances being constituted because of findings of a criminal nature in s 40(2) of the DBC Act.
Prestige Home Builders refers to the finding that it breached s 40(2) of the DBC Act, and the Tribunal order it refund $257,500 to Mr and Mrs Bartolic.[7] Section 40 of the DBC Act states:
[7]Bartolic v Prestige Home Builders Pty Ltd (Building and Property) [2017] VCAT 1102[57].
Limits on progress payments
(1) In this section—
"base stage" means—
(a)in the case of a home with a timber floor, the stage when the concrete footings for the floor are poured and the base brickwork is built to floor level;
(b)in the case of a home with a timber floor with no base brickwork, the stage when the stumps, piers or columns are completed;
(c)in the case of a home with a suspended concrete slab floor, the stage when the concrete footings are poured;
(d)in the case of a home with a concrete floor, the stage when the floor is completed;
(e)in the case of a home for which the exterior walls and roof are constructed before the floor is constructed, the stage when the concrete footings are poured;
"frame stage" means the stage when a home's frame is completed and approved by a building surveyor;
"lock-up stage" means the stage when a home's external wall cladding and roof covering is fixed, the flooring is laid and external doors and external windows are fixed (even if those doors or windows are only temporary);
"fixing stage" means the stage when all internal cladding, architraves, skirting, doors, built-in shelves, baths, basins, troughs, sinks, cabinets and cupboards of a home are fitted and fixed in position.
(2)A builder must not demand or recover or retain under a major domestic building contract of a type listed in column 1 of the Table more than the percentage of the contract price listed in column 2 at the completion of a stage referred to in column 3.
Penalty: 50 penalty units.
TABLE Column 1 Column 2 Column 3 Type of contract Percentage of contract price Stage Contract to build to lock-up stage 20% Base stage " 25% Frame stage Contract to build to fixing stage 12% Base stage " 18% Frame stage " 40% Lock-up stage Contract to build all stages 10% Base stage " 15% Frame stage " 35% Lock-up stage " 25% Fixing stage
Section 40(5) provides that if a charge under s40(2) is found proven by a Court against a builder, it may order the builder to refund the building owner. Section 40(2) provides for a penalty of 50 units. There is authority indicating a breach of section 40(2) may attract a criminal sanction.[8]
[8]Imerva [2016] VSC 461 [17]; [2017] VSCA 168 [89].
I do not consider that the assertion by Prestige Home Builders of a concern about criminality constitutes a special circumstance for the following reasons.
Firstly, there was no penalty imposed by the Tribunal. What Prestige Home Builders seek to stay are orders for compensation, interest and costs. Staying these orders has no impact on the alleged finding of criminality.
Secondly, and perhaps unsurprisingly in light of the above, the draft notice of appeal does not raise the issue of a finding of a criminal nature. The reference to s 40(2) of the DBC Act is in the first ground of appeal:
The Tribunal erred by failing to apply the standard of proof set out in Briginshaw v Briginshaw (citation omitted) when finding that it was satisfied with each of the elements of the charge in s 40(2) of the DBC Act were proven against the appellant.
The first question of law stated in the notice of appeal is as follows:
Whether, in proceedings commenced by an applicant seeking a ‘refund’ pursuant to s 40(5) of the DBC Act, the Tribunal must assess the evidence by reference to the standard of proof set out in Briginshaw v Briginshaw (citation excluded) in order to make a finding that a charge under s 40(2)(ii) of the DBC Act is proven.
Thirdly, there is no evidence to suggest that a criminal sanction is being pursued. This matter does not fall into the category of cases where there are criminal proceedings concerning the same subject matter and a stay of a civil proceeding is sought.[9] There is no evidence in either of Mr Jankulovski’s affidavits to even suggest an apprehension of criminal proceedings.
[9]McMahon v Gould (1982) 7 ACLR 202.
Fourthly, Prestige Home Builders made a reference in oral submissions to a critical concern being that the finding could lead to ‘other penalties’ under s 128 of the DBC Act. Section 128 refers to convictions in respect of ‘an offence against this Act in respect of which a default penalty is provided, or ‘[a person] is served with an infringement notice in relation to such an offence’. There is no ‘default penalty’ in respect of s 40(2). Section 125 of the DBC Act provides for the serving of infringement notices in respect of certain offences listed in Schedule 2 of the Act. There is no reference to s 40(2) in that Schedule and thus s 125 is not applicable to that section. Given that s 40(2) has neither the default penalty nor attracts an infringement notice under Schedule 2, s 128 is not applicable.
Turning now to Prestige Home Builders’ submission that there is a special circumstance because the construction of s 40, and in particular s 40(5) is of public interest.
In respect of s 40(5) of the DBC Act, the fifth ground of appeal is stated as follows:
The Tribunal erred by failing to find that the appellant recovered nor retained any funds, and that consequently there were no payments that could be refunded by the appellant pursuant to s 40(5) of the DBC Act.
The fourth question of law is stated as follows:
Whether, on the proper construction of s 40(5) of the DBC Act, an application seeking a ‘refund’ of payments pursuant to s 40(5) must demonstrate that the respondent received or controlled those payments.
The Court of Appeal referred to ss 40(2) and 40(5) in Imerva. This decision was not relied upon by either party during the first Tribunal hearing. (The Court of Appeal decision in Imerva was handed down on 29 June 2017 and the first Tribunal hearing occurred on 3 July 2017.[10]) The Tribunal referred to Imerva in its reasons.[11]
[10]The Court of Appeal upheld the decision at first instance: Imerva Corporation Pty Ltd v Kuna [2016] VSC 461 (McDonald J).
[11]Bartolic v Prestige Home Builders Pty Ltd (Building and Property) [2017] VCAT 1102 [33]
I do not consider that the construction of s 40(5) of the DBC Act is an issue of such public interest that it constitutes special circumstances that warrant the granting of a stay. There is no material before the Court to support that proposition.
Turning now to Prestige Home Builders’ submission that insolvency proceedings constitute special circumstances and so a stay should be ordered.
Impecuniosity of an appellant does not, on its own, constitute special circumstances. The Court of Appeal has stated ‘the desire to avoid bankruptcy is not, of itself, sufficient to warrant the grant of a stay’.[12]
[12]Seifert v Chaudhary [2012] VSCA 17, [14] (Weinberg JA).
There is no material before the Court to support the submission that the appeal would be rendered nugatory because of the statutory demand or potential insolvency proceedings. Indeed, Prestige Home Builders’ submission was that it ‘was confident it will successfully oppose the statutory demand’. This is not a situation where, to allow a winding up application to proceed may have ‘obvious and significant implications for the capacity of the appellant to prosecute the appeal’.[13] Rather, the submission was that it is in the interests of the overarching purpose of the CPA that the parties not incur the expense of the insolvency proceedings until the present application for leave to appeal, and any appeal, is determined.
[13]McMahon v National Foods Milk Ltd [2008] VSCA 237 [2] (Maxwell P).
The question of solvency or otherwise may well be affected by the Tribunal’s orders. The application for winding up and this proceeding may be intimately connected. However, there is no evidence before me of this. There is no evidence that the parties are the same (for instance, whether or not Mr Smith is also a party in the winding up application). There is no material before the Court regarding the solvency or otherwise of Prestige Home Builders.
Given the above, I do not consider the potential insolvency proceedings, and the winding up application listed for directions on 7 March 2018 constitute special circumstances warranting a stay.
Given the failure to establish special circumstances, it is unnecessary to consider whether there is an arguable ground of appeal. Had I been required to do so, I would have assessed the prospects neutrally.
There were submissions about Prestige Home Builder’s application for an extension of time as Mr and Mrs Bartolic submit the application for leave to appeal from the Tribunal’s 31 July 2017 orders is 105 days’ late. (There was a submission, not strenuously argued, that perhaps those orders were not final.) There has been no explanation for the delay other than a suggestion that as Mr Jankulovski was representing Prestige Home Builders he misapprehended the appeal time frame. Mr Jankulovski deposes that he had legal representation early in the proceedings but does not depose as to when he obtained legal advice in respect of the 31 July 2017 orders.[14] Prestige Home Builders’ prospects of obtaining an extension of time are uncertain.
[14]Jankulovski second affidavit, [11].
Are Prestige Home Builders estopped from making this stay application?
Mr and Mrs Bartolic submitted that estoppel applies. They submit that the Tribunal’s stay order had the following nature:
(a) it was a final order;
(b) it could be appealed (this is conceded by Prestige Home Builders);
(c) the same question is being determined in this application, that is, the subject matter is the same;
(d) the parties are the same;
(e) the order is completely effective and therefore final and conclusive; and
(f) it is immaterial that the stay is being determined by this Court under a different rule, that is, that it is exercising a different power to that exercised by the Tribunal below in relation to the stay as there is nothing different between this application and the one before the Tribunal.
On the other hand, Prestige Home Builders says that no estoppel arises for the following reasons:
(a) the stay sought in this application is sought under a different power in comparison with the stay sought by the Tribunal; and
(b) the stay ordered by the Tribunal is an interim order. It is of an interlocutory nature. It does not determine the substantive rights of parties.
I adopt the following statement of principle enunciated by the High Court in Tomlinson v Ramsey Food Processing Pty Limited.[15]
An exercise of judicial power, it has been held, involves ‘as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons’. The rendering of a final judgment in that way ‘quells’ the controversy between those persons. The rights and obligations in controversy, as between those persons, cease to have an independent existence: they ‘merge’ in that final judgment. That merger has long been treated in Australia as equating to ‘res judicata’ in the strict sense.
Estoppel in relation to judicial determinations is of a different nature. It is a common law doctrine informed, in its relevant application, by similar considerations of finality and fairness. Yet its operation is not confined to an exercise of judicial power; it also operates in the context of a final judgment having been rendered in other adversarial proceedings. It operates in such a context as estoppel operates in other contexts: as a rule of law, to preclude the assertion of a right or obligation or the raising of an issue of fact or law.
Three forms of estoppel have now been recognised by the common law of Australia as having the potential to result from the rendering of a final judgment in an adversarial proceeding. The first is sometimes referred to as ‘cause of action estoppel’. Estoppel in that form operates to preclude assertion in a subsequent proceeding of a claim to a right or obligation which was asserted in the proceeding and which was determined by the judgment. It is largely redundant where the final judgment was rendered in the exercise of judicial power, and where res judicata in the strict sense therefore applies to result in the merger of the right or obligation in the judgment. The second form of estoppel is almost always now referred to as ‘issue estoppel’. Estoppel in that form operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment. The classic expression of the primary consequence of its operation is that a ‘judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies’. The third form of estoppel is now most often referred to as ‘Anshun estoppel’, although it is still sometimes referred to as the ‘extended principle’ in Henderson v Henderson. That third form of estoppel is an extension of the first and of the second. Estoppel in that extended form operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding. The extended form has been treated in Australia as a ‘true estoppel’ and not as a form of res judicata in the strict sense. Considerations similar to those which underpin this form of estoppel may support a preclusive abuse of process argument.
The present significance of the recognition of those three forms of estoppel is that each has the potential to preclude assertion of a right or obligation, or the raising of an issue of fact or law, between parties to a proceeding or their privies. Absent a principled basis for distinction – and none has been suggested – one principle must govern the identification of privies for the purpose of all forms of estoppel which result from the rendering of a final judgment in an adversarial proceeding.
… The doctrine of abuse of process is informed in part by similar considerations of finality and fairness. Applied to the assertion of rights or obligations, or to the raising of issues in successive proceedings, it overlaps with the doctrine of estoppel. Thus, the assertion of a right or obligation, or the raising of an issue of fact or law, in a subsequent proceeding can be simultaneously: (1) the subject of an estoppel which has resulted from a final judgment in an earlier proceeding; and (2) conduct which constitutes an abuse of process in the subsequent proceeding.
Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. …
[15]256 CLR 507 (French CJ, Bell, Gaigler and Keon JJ) [20]-[26]. Citations omitted.
I do not consider that the stay orders made by the Tribunal fall within the definition of issue estoppel referred to above. In particular, they do not concern a ‘judicial determination directly involving an issue of fact or of law [which] disposes once for all of the issue, so that it cannot afterwards be raised’. There was no substantive determination of such issues. The stay is in the nature of an interlocutory or procedural order. Although it can be appealed, this is because the definition of order in s 3 of the Tribunal Act includes an ‘interim order’. Accordingly, the fact it can be appealed does not point to it being a final determination of rights.
The Court of Appeal decision in Melbourne City Investments Pty Ltd v Layton Holdings Limited[16] supports this conclusion. It concerned a decision by a trial judge not to stay a proceeding as an abuse of process. The Court of Appeal held that the trial judge’s stay decision was ‘interlocutory in the sense that it was not capable of engaging the principles of res judicata or issue estoppel’.[17]
[16][2015] VSCA 235.
[17]Melbourne City Investments Pty Ltd v Layton Holdings Limited [2015] VSCA 235 [34] (Tate JA, Beach JA and Robson AJA).
For completeness, I make reference to an authority relied upon by Mr and Mrs Bartolic: Kuligowski v Metro Bus.[18] It concerned a stay where substantive findings about rights were made by a review officer. That is not the case here.
[18]220 CLR 363.
I refer to the principles outlined in Tomlinson v Ramsey Food Processing Pty Limited[19] above. I consider abuse of process is an issue that arises in circumstances such as these where the same stay (on the same material) is sought at the Tribunal and in this Court. I do not accept the distinction that because of the different legislation and rules under which the application is brought they are different applications. They are substantively the same.
[19]256 CLR 507.
However, as there were no submissions before me concerning abuse of process, I will not make any findings regarding whether there is an abuse of process.
Should a stay be ordered?
I will decline the application for a stay.
Prestige Home Builders has not established the special circumstances that are necessary to deprive Mr and Mrs Bartolic of the fruits of the judgment in the Tribunal.
Alternatively, I would decline to exercise the discretion to grant stay orders on the basis that Prestige Home Builders obtained the Tribunal stay order.
The Tribunal stay order was conditional upon it paying monies into the Tribunal trust fund and it did not meet that condition. It should not have sought to agitate the same application again (in the absence of new material).
Finally, I observe that Prestige Home Builders did not act in a timely manner to seek leave to appeal the 31 July 2017 orders. As discussed above, it has made an application for extension of time. Whilst it would be inappropriate for me to determine whether time should be extended in this application, I have observed above that the outcome of the application is uncertain. The failure to seek leave to appeal within time is another factor that weighs against exercising the discretion to grant Prestige Home Builders’ stay application.
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