Prestige Home Builders Pty Ltd v Bartolic - [2018] VSC 98

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] VSC 98
Decision Date: 6 March 2018

CaseChat Overview and Summary

Prestige Home Builders Pty Ltd, a builder, was involved in a dispute with the Bartolics, the owners of a property, regarding a construction contract. The Bartolics applied to the Victorian Civil and Administrative Tribunal (VCAT) for an order under the Domestic Building Contracts Act 1995 that Prestige pay them money in respect of the contract. VCAT made the order and Prestige sought to appeal to the Supreme Court. In the meantime, Prestige applied to the Supreme Court for a stay of the VCAT orders pending the determination of the appeal. VCAT had stayed its orders on condition that Prestige pay money into the VCAT Small Claims Trust Account. Prestige's application to the Supreme Court was to seek a stay of the VCAT orders without having to make the payment. The court was required to determine whether it should grant the stay and, if so, whether the stay should be conditional upon Prestige paying money into the VCAT Small Claims Trust Account. The court considered the relevant statutory provisions and case law, including Tomlinson v Ramsey Food Processing Pty Limited, Maher v Commonwealth Bank of Australia, and Imerva Corporation Pty Ltd v Kuna. It concluded that there were no special circumstances that warranted the Supreme Court staying the VCAT orders without the payment into the VCAT Small Claims Trust Account, nor was there any estoppel that would prevent the Supreme Court from imposing the condition. The application for a stay of the VCAT orders was refused. The court did not make any orders as to costs.

Orders