Shen v Hatfield - [2019] VSC 360

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 00053

SHANE SHEN	Applicant
v
GLENN HATFIELD	Respondent

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JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 May 2019
DATE OF JUDGMENT:	31 May 2019
CASE MAY BE CITED AS:	Shen v Hatfield
MEDIUM NEUTRAL CITATION:	[2019] VSC 360

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ADMINISTRATIVE LAW – Application for leave to appeal from decision of Victorian Civil and Administrative Tribunal – Damages for breach of contract assessed as at date of breach – Whether Senior Member failed to exercise jurisdiction conferred by s 53(1) of the Domestic Building Contracts Act 1995 by not assessing damages as at date of making orders – Whether Senior Member failed to assess damages in accordance with Robinson v Harman (1848) 1 Ex 850 – No error of law – Application for leave to appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Gray (a solicitor)	Just Law
For the Respondent	No appearance

HIS HONOUR:

The applicant is the owner of vacant land in Broadmeadows. The respondent is a registered builder. By a major domestic building contract dated 20 June 2015 (‘the contract’), the respondent agreed to construct four dwelling units on the land for the applicant for a price of $433,750. Following some excavation and in–ground plumbing work done by the respondent, a dispute arose concerning a claim by the respondent for additional payment and his demand for a new contract. After negotiations between the parties broke down, the respondent suspended work and purported to terminate the contract.

The applicant then claimed that the respondent had repudiated the contract and, by notice dated 5 May 2016, purported to determine the contract himself, on the grounds of repudiation and also on the basis of s 41 of the Domestic Building Contracts Act 1995 (‘Act’). On 20 December 2016, the applicant commenced a proceeding in the Victorian Civil and Administrative Tribunal (‘VCAT’) claiming damages from the respondent of $277,197.80.[1]
[1]Shen v Hatfield (Building and Property) [2018] VCAT 1864, [1]–[5] (‘Shen’).

Senior Member Walker upheld the applicant’s contention that the respondent had engaged in repudiatory conduct which entitled the applicant to terminate the contract.[2] On 27 November 2018, the Senior Member ordered the respondent to pay the applicant $218,876.27. This sum was based upon the Senior Member’s assessment of damage flowing from the breach of contract in February 2016. The amount awarded by the Senior Member was $59,976 less than the amount claimed by the applicant. That amount was based upon the cost of completing the building works in November 2018.[3]
[2]Ibid [81].
[3]Ibid [86]–[87].

The applicant applies pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 for leave to appeal from the order of the Senior Member.[4] The applicant submits that the Senior Member erred in law by failing to take into account evidence from a quantity surveyor of increased building costs of $59,976 between February 2016,…

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 Shen v Hatfield

Details

AGLC: Shen v Hatfield [2019] VSC 360
Case: [2019] VSC 360
Decision Date: 31 May 2019

CaseChat Overview and Summary

The matter of Shen v Hatfield involved an application for leave to appeal from a decision of the Victorian Civil and Administrative Tribunal. The central issue was the assessment of damages for a breach of contract, specifically whether these damages should be assessed as at the date of the breach or the date of the making of orders. The appeal was brought by the respondent, Shen, against the decision of the Senior Member of the tribunal, Hatfield.

The primary legal issues that the court needed to resolve were whether the Senior Member had failed to exercise the jurisdiction conferred by section 53(1) of the Domestic Building Contracts Act 1995 and whether the Senior Member had correctly assessed the damages in accordance with the principles set out in Robinson v Harman (1848) 1 Ex 850. The court had to determine if there was any error of law in the Senior Member's decision that warranted an appeal.

In examining the decision, the court found that the Senior Member had not erred in law. The court held that the Senior Member had exercised the jurisdiction conferred by section 53(1) of the Act and had correctly applied the principles of Robinson v Harman in assessing the damages. The court determined that there was no legal error in the Senior Member's assessment of damages, and thus the application for leave to appeal was dismissed. The court's reasoning was based on the interpretation of the statutory provisions and the application of established legal principles in the context of the Domestic Building Contracts Act 1995.

Orders