Shaw v Yarranova Pty Ltd - [2006] VSCA 291

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 9046 of 2003

JOHN RASHLEIGH SHAW
	Appellant
v.
YARRANOVA PTY LTD and NEWQUAY STAGE 2 PTY LTD	Respondents

---

JUDGES:	WARREN, C.J., EAMES and NEAVE, JJ.A.
WHERE HELD:	Melbourne
DATE OF HEARING:	29 August 2006
DATE OF JUDGMENT:	15 December 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 291	FIRST REVISION 5 FEBRUARY 2007

---

CONTRACT – Sale of apartment “off-the-plan” by way of a contract of sale – Whether contract of sale covered by Domestic Building Contracts Act 1995 – Whether a “Major Domestic Building Contract” Domestic Building Contracts Act 1995, ss 3, 4, 5, 6, & 42 – Statutory interpretation – Consideration of the position of the Act within legislative regime – Appeal dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J.D. Merralls, Q.C. with	Coadys
Mr J.A.F. Twigg
For the Respondents	Mr A.J. Kelly, S.C.	Arnold Bloch Leibler

WARREN, C.J.:

The appellant seeks to set aside a decision of Bell, J. that a contract to purchase an apartment “off the plan” within an in-built high rise development was not a major domestic building contract within the meaning of the Domestic Building Contracts Act 1995 (the “DBC Act”). The consequence of the judgment below was that the developer, Yarranova Pty Ltd (“Yarranova”), the first respondent to the appeal, was entitled to rescind a contract for sale between it and the plaintiff, John Rashleigh Shaw.

It was agreed between the parties as follows:
1.   The lot to be sold under the Contract of Sale (“Contract”) between the plaintiff and first defendant (being Lot 1002, CPT 464 and ST166 on a proposed plan of subdivision PS 438893N ”Lot 1002”) did not exist at the date of the Contract.
2.   When registered, the land comprised in the proposed plan of subdivision would be known as New Quay, Docklands.
3.   The apartment constructed on Lot 1002 did not exist at the date of the Contract (“the Apartment’).
4.   The defendants are not registered builders within the meaning of the Building Act 1993 (Vic).
5.   The defendant did not construct any homes on the land.
6.   No contract for the construction of a home on Lot 1002 existed at the date of the Contract.
7.   Special condition 18.1 of the Contract provides that:
“The vendor will enter into a Major Domestic Building             Contract with a Builder for the Works.”
8.   Special condition 26.1 of the Contract provides that:
“The purchaser hereby acknowledges that the vendor   intends to proceed with and complete the Works in   response to the market demand and the timing for   commencement of the Works will be made by the vendor                  at its sole, absolute and unfettered discretion.”
9.   Performance of the Works was necessary for the purposes of inter alia the creation of Lot 1002 and construction of the Apartment.
10. By a design and construct contract dated 15 December 2000 (“design and construct contract”), the second defendant engaged Bovis Lend Lease Pty Limited, a registered builder, to undertake the construction…

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.

Keep reading for free

Create a free CaseChat account to read Shaw v Yarranova Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] VSCA 291
Decision Date: 15 December 2006

CaseChat Overview and Summary

In the case of Shaw v Yarranova Pty Ltd, the dispute involved the sale of an apartment that was purchased off-the-plan. The plaintiff, Shaw, sought to establish whether the contract of sale was covered by the Domestic Building Contracts Act 1995 (Vic). The defendant, Yarranova, argued that the contract did not fall under the Act, which governs major domestic building contracts. The matter was heard and determined by the Supreme Court of Victoria.

The primary legal issue for the court to resolve was whether the contract for the sale of the apartment constituted a “Major Domestic Building Contract” as defined in the Domestic Building Contracts Act 1995. The court had to interpret the relevant sections of the Act and determine if the contract fell within its scope, particularly focusing on sections 3, 4, 5, 6, and 42 of the Act. This interpretation required a consideration of the overall legislative framework and the intention behind the Act.

The court examined the nature of the contract and the statutory provisions in detail. It found that the contract did not qualify as a “Major Domestic Building Contract” under the Act. The reasoning was grounded in the specific terms of the contract and the statutory definitions provided. The court held that the contract did not meet the criteria set out in the Act, and therefore, it was not subject to the provisions of the Domestic Building Contracts Act 1995. Consequently, the appeal brought by Shaw was dismissed.

As a result of the court's decision, Yarranova was not subject to the obligations and protections provided by the Domestic Building Contracts Act 1995 in relation to the sale of the apartment. The judgment clarified the boundaries of the Act and reinforced the importance of statutory interpretation in determining the applicability of building contract laws.

Orders