Shelcon Pty Ltd v Duhovic - [2007] VSC 430

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 7436 of 2007

SHELCON PTY LTD	Plaintiff
v
DUHOVIC AND ANOTHER	Defendants

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JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 OCTOBER 2007
DATE OF JUDGMENT:	18 OCTOBER 2007
CASE MAY BE CITED AS:	SHELCON PTY LTD v DUHOVIC & ANOR
MEDIUM NEUTRAL CITATION:	[2007] VSC 430

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APPLICATION for leave to appeal – Section 148 of the Victorian Civil and Administrative Tribunal Act 1998 – Domestic Building List – Preliminary determination as to parties to the building contract – no arguable error of law in reasons – material findings of fact as to background circumstances and as to probabilities – open to the Tribunal to treat circumstantial evidence as it did – justiciability of interim order not decided – potential further claim in tort not decisive – leave refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Mackinnon	Michael Mackinnon
For the Defendants	Mr J.J. Isles	Stephen Peter Byrne

HIS HONOUR:

In this matter the plaintiff seeks leave to appeal pursuant to s.148 of the Victorian Civil and Administrative Tribunal Act 1998 (“VCAT Act”). The principles to be applied are most conveniently summarised by the Court of Appeal in The Secretary of the Department Of Premier and Cabinet v Hulls.[1]
[1](1999) 3 V.R. 331.

In the present case three principal issues have been agitated before me. Firstly, whether the decision of the Tribunal that is in issue constitutes an order for the purposes of the section. Secondly, whether the reasons disclosed an arguable vitiating error of law. And thirdly, whether if the first two questions are answered in the affirmative nevertheless leave should be refused because the plaintiff still has on foot a claim for alternative relief.

It is necessary to say something about the background to the matter. The Tribunal had before it a claim with respect to allegedly defective concreting works carried out at 310 Camp Road, Broadmeadows. The plaintiff alleged that the works were neither completed nor executed properly, nor rectified insofar as they were defective. He sued the defendants to this proceeding firstly, in contract and secondly, in negligence. Having considered the points of claim and defence, Senior Member Cremean took the view that it was sensible to determine as a preliminary question who were the contracting parties to the arrangement pursuant to which the concreting work was done. In so doing he no doubt had regard in part to his obligation under s.98(1)(d) of the VCAT Act to conduct each proceeding with as little formality and technicality and determine each proceeding with as much speed, as the requirements of the Act and a proper consideration of the matters before him permitted.

In the event after hearing evidence and submissions on 7 June 2007 he ultimately ordered on 28 June 2007:

(1)I determine that the contract with the applicant was made with SMK Developers Pty Ltd and not with the respondents or with either of them;

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 Shelcon Pty Ltd v Duhovic

Details

AGLC: Shelcon Pty Ltd v Duhovic [2007] VSC 430
Case: [2007] VSC 430
Decision Date: 18 October 2007

CaseChat Overview and Summary

The applicant, Shelcon Pty Ltd, sought leave to appeal against a decision of the VCAT, which involved a dispute under the Domestic Building List. The issue at hand was a preliminary determination concerning the parties to a building contract. The VCAT had ruled that the building contract was not between Shelcon and the respondent, Duhovic, but rather between Duhovic and another party, which was not the subject of this appeal.

The legal issues the court needed to address were whether the VCAT had made an arguable error of law in its reasons, whether the findings of fact were material, and if the VCAT's treatment of circumstantial evidence was appropriate. Additionally, the court considered the justiciability of the interim order and the potential for a further claim in tort. The court found that there was no arguable error of law in the VCAT's reasons, that the material findings of fact were properly made, and that the VCAT was open to treat the circumstantial evidence as it did. The court also noted that the justiciability of the interim order and the potential for a further claim in tort did not affect the outcome of this appeal.

Based on the reasoning provided, the court concluded that Shelcon had not demonstrated an arguable error of law in the VCAT's decision. The court found that the VCAT had made material findings of fact and that its treatment of the circumstantial evidence was within its discretion. Consequently, the court refused leave to appeal.

Orders