Professional Floor Services Pty Ltd v Techcor
[2009] VCC 560
•22 April 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
COMMERCIAL LIST
BUILDING CASES DIVISION
Case No. CI-09-00241
| PROFESSIONAL FLOOR SERVICES PTY LTD | Plaintiff |
| v | |
| TECHCOR DEVELOPMENTS PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE SHELTON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 8 April 2009 |
| DATE OF JUDGMENT: | 22 April 2009 |
| CASE MAY BE CITED AS: | Professional Floor Services Pty Ltd v Techcor Developments Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0560 |
REASONS FOR JUDGMENT
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Catchwords: Application to set proceeding aside – Rule 8.09(a) – does issuing of proceeding at VCAT pursuant to Fair Trading Act 1999 preclude the issuing of a subsequent proceeding in the County Court pursuant to s.16(2)(a)(i) of the Building and Construction Industry Security of Payment Act 2002? – Application refused
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J A F Twigg | Giannakopoulos Solicitors |
| For the Defendant | Mr P Lithgow | Neil McPhee & Associates |
| HIS HONOUR: |
1 This is an application brought pursuant to Rule 8.09(a) by the defendant to set the proceeding aside.
The Facts
2 These are not in dispute.
3 The plaintiff carried out flooring works for the defendant at Yarra Glen. The defendant alleges that the works carried out by the plaintiff were defective and incomplete. It accordingly commenced proceedings against the plaintiff in the Victorian Civil & Administrative Tribunal (“VCAT”), seeking orders that the plaintiff return to site and rectify defects, alternatively, for damages for breach of contract. These proceedings were issued on 3 December 2008 pursuant to Part 9 of the Fair Trading Act 1999 (“the FT Act”).
4 Subsequently, on 23 January 2009, the plaintiff issued this proceeding claiming the sum of $113,797.20 pursuant to s.16(2)(a)(i) of the Building and Construction Industry Security of Payment Act 2002 (“the SOP Act”). This provision allows a party who has served “a payment claim” under the SOP Act where “a payment schedule” has not been provided by the respondent “to recover the unpaid portion of the claimed amount from the respondent, as a debt due to the claimant, in any court of competent jurisdiction”.
The Issues
5 Is the plaintiff entitled to issue this proceeding in view of the defendant having issued a proceeding at VCAT? This question can be further refined to “is VCAT a court of competent jurisdiction for the purposes of s.16(2)(a)(i) of the SOP Act.
Discussion and Conclusions
6 It is not in dispute that a “consumer and trader dispute”, as defined in s.107 of the FT Act, exists between the parties and that the defendant properly brought its proceeding in VCAT.
7 The defendant particularly relies upon s.111 of the FT Act which provides:
“Exclusion of other jurisdiction
(1) Once an application has been made to the Tribunal in accordance with the Victorian Civil and Administrative Tribunal Act 1998 in respect of a consumer and trader dispute or in respect of any other matter in respect of which the Tribunal has jurisdiction under this Act, the issues in dispute are not justiciable at any time by a court unless—
(a) the proceeding in that court was commenced before the application to the Tribunal was made and that proceeding is still pending; or (b) the application to the Tribunal is withdrawn or struck out for want of jurisdiction; or (c) the Tribunal refers the proceeding to that court under section 77 of the Victorian Civil and Administrative Tribunal Act 1998. (2) Subsection (1) applies to all the issues in dispute, whether as shown in the application or emerging in the course of the proceeding in the Tribunal.”
8 It was not suggested by the plaintiff that any of the three exceptions in s.111(1) was applicable.
9 Mr Lithgow, who appeared for the defendant, submitted that it was irrelevant that the plaintiff’s claim under the SOP Act was not a “consumer and trader dispute” and that once VCAT jurisdiction is invoked then the SOP Act claim was an ancillary dispute which could be dealt with by VCAT. He submitted that the requirement of s.16(2)(a)(i) that the SOP Act claim must be brought in a “court of competent jurisdiction” did not exclude VCAT from hearing the SOP Act claim and that in fact VCAT was a “court of competent jurisdiction” within the meaning of s.16(2)(a)(i).
10 Mr Lithgow referred me to a number of authorities in support of this submission.
11 In Potter v Archirom Investments Pty Ltd [2005] VCAT 2707, His Honour Judge Bowman, sitting as Vice-President of VCAT, had to consider whether “a court” as referred to in s.32(7) of the Sale of Land Act 1962, applied to VCAT. He stated, at paragraph 25:
“The simple question for determination is whether or not this Tribunal is ‘a court’ for the purposes of s.32(7) of the Sale of Land Act. In other words, the basic issue is whether or not this Tribunal has jurisdiction in relation to the operation of that sub-section.”
12 He concluded:
“As previously stated, this Tribunal has been found to be a court for the purposes of some statutory provisions, but not for others. In my opinion, for the reasons set out above, it is a court for the purposes of s.32(7) of the Sale of Land Act.”
13 Mr Lithgow relied on three other cases where VCAT was held to be “a court” or “a court of competent jurisdiction”.
14 In Temptress Nominees Pty Ltd v Constantinou [2001] VCAT 1443 ((2001) V ConvR 58-563) at paragraph 41, Deputy President McNamara held that VCAT was “a court of competent jurisdiction” for the purposes of the Retail Tenancies Reform Act 1998.
15 In Wan v Yatrasone Pty Ltd [2003] VCAT 513, Member Vassie considered a condition in a standard contract for the sale of a business which provided that “court proceedings” relating to a dispute arising under the contract could not be commenced, except in the case of urgent interlocutory relief, unless the parties had gone to mediation. Member Vassie stated, at paragraph 13, that the question whether VCAT was “a court” was one to which there was no simple answer. He pointed out that VCAT was not “a court” upon which federal legislation could confer jurisdiction since its membership did not satisfy the requirements of Chapter 3 of the Constitution. He indicated though that VCAT was “a court” for the purposes of the provisions of the Corporations Act 2001 of the Commonwealth relating to external administration and insolvency. Member Vassie concluded that for the purposes of the general condition in the contract, VCAT was “a court”.
16 In Labour v Pehlivan [2005] VCAT 1900, Senior Member Vassie had to consider whether VCAT was “a court of competent jurisdiction” for the purposes of the Consumer Credit (Victoria) Code which was in force in Victoria by virtue of the Consumer Credit (Victoria) Act 1995, Section 5. Although it was not argued before him that the Tribunal was not “a court of competent jurisdiction”, Senior Member Vassie held that it was.
17 Pizer’s Annotated VCAT Act, 3rd edition, at paragraph [1282] makes the point that VCAT “is clearly not a court in the strict sense”. It states that, however, VCAT may be “a court” within the terms of a particular statutory provision and gives examples where this was so held. It also gives examples of where VCAT has been held not to be “a court” for the purposes of other statutory provisions.
18 As is evidenced from the above, whether or not VCAT is to be regarded as “a court” or “a court of competent jurisdiction” is a matter to be determined in the context of the particular statutory provision under consideration.
19 In my view, VCAT is not a court of competent jurisdiction for the purposes of s.16(2)(a)(i) of the SOP Act for the following reasons.
20 Firstly, it was not in issue that the County Court, as a court of competent jurisdiction, has jurisdiction to deal with a claim made pursuant to s.16(2)(a)(i) of the SOP Act.
21 Secondly, VCAT “is a creature of statute, and its jurisdiction, extensive though it is, is precisely defined in various enabling enactments” – Roads Corporation v Maclaw No. 469 Pty Ltd [2001] VSC 435, per Balmford J, at para 19. Neither s.43 of the Victorian Civil & Administrative Tribunal Act 1999, which provides:
“How is original jurisdiction invoked?
The original jurisdiction of the Tribunal is invoked—
(a) by a person who is entitled by or under an enabling enactment to do so applying to the Tribunal in accordance with section 67; or (b) by a matter being referred to the Tribunal under an enabling enactment in accordance with section 69; or (c) in any other way permitted or provided for by the enabling enactment.”
nor the SOP Act give VCAT jurisdiction to hear actions brought pursuant to s.16(2)(a)(c) of the SOP Act. “Enabling enactment” is defined in s.3 of the Victorian Civil & Administrative Tribunal Act 1999 as meaning “an enactment by or under which jurisdiction is conferred on the Tribunal”.
22 Thirdly, to imply that in all the circumstances VCAT has jurisdiction to deal with the plaintiff’s claim is totally inconsistent with s.16(4) of the SOP Act. This provision quarantines or isolates a claim under s.16(2)(a)(i) of the SOP Act. To grant the defendant’s application and allow VCAT to hear the plaintiff’s claim under the SOP Act would totally frustrate the purpose of s.16(2)(4)(b) of the SOP Act by mingling the plaintiff’s claim with the defendant’s claim. This could not be done in the County Court. It is inappropriate that it could be done at VCAT.
23 Fourthly, s.47(3) of the SOP Act envisages that a tribunal, such as VCAT, might hear disputes under a construction contract separately from proceedings under the SOP Act.
24 The defendant’s application is refused.
25 I will hear from the parties on the question of costs and other appropriate directions in relation to the proceeding before this Court.
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