SMA Projects Australia Pty Ltd v Jovanovic - [2006] VSC 176

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5944 of 2005

SMA PROJECTS AUSTRALIA PTY LTD	Plaintiff
v
STEVE JOVANOVIC	Defendant

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JUDGE:	Mandie J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 April 2006
DATE OF JUDGMENT:	10 May 2006
CASE MAY BE CITED AS:	SMA Projects Australia Pty Ltd v Jovanovic
MEDIUM NEUTRAL CITATION:	[2006] VSC 176

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VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL – Appeal to Supreme Court – claim and counterclaim in the Tribunal’s jurisdiction under Part 9 of the Fair Trading Act 1999 – whether oral reasons inadequate so as to constitute or show error of law.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Whelen	Middletons
For the Defendant	[See para [30] herein]

HIS HONOUR:

Introduction

This is an appeal on questions of law, by leave[1], pursuant to s.148 of the Victorian Civil and Administrative Tribunal Act 1998 (“the VCAT Act”), from an order of VCAT, constituted by a member thereof (“the Tribunal”). The order was made by the Tribunal on 8 April 2005 in two proceedings[2] in the jurisdiction of VCAT relating to consumer and trader disputes, under Part 9 of the Fair Trading Act 1999. Each of the proceedings was a “small claim” as defined by s.107A of the Fair Trading Act.
[1]Master Evans granted leave to appeal by order dated 14 June 2005.
[2]Numbers C532 of 2005 and C1355 of 2005.

The appellant, SMA Projects Australia Pty Ltd (“SMA Projects”), was the unsuccessful party in the two proceedings and the respondent, Steve Jovanovic (trading as Get Clean – “Mr Jovanovic”), was the successful party below.

Mr Jovanovic conducted a cleaning business and, in proceeding number C532 of 2005 commenced on 9 February 2005, he claimed the sum of $4,610 from SMA Projects. The “Application to Civil Claims List” referred to a contract dated 14 July 2004 for the cleaning of 48 units under construction for the sum of $14,000 which was completed on 21 September 2004 and “duly paid” two weeks later. The document continued that “part two of the contract provided for subsequent cleaning of $40 per hour, which cleaning was performed, and results in the debt claimed.” In relation to that claim, after hearing both proceedings together, the Tribunal ordered SMA Projects to pay Mr Jovanovic the sum of $4,610 as claimed by him.

In proceeding number C1355 of 2005 commenced on 22 March 2005 SMA Projects counterclaimed the sum of $8,530.50. The “Application to Civil Claims List” outlined the history of the dispute as follows: “this is a counterclaim … Get Clean did not adequately complete the works and despite requests to rectify faulty workmanship they did not complete their contractural obligations. Accordingly, another contractor was brought in to complete the works – costs associated with counterclaim.” The Tribunal dismissed the counterclaim by SMA Projects.

The amended notice of appeal filed 20 June 2005 stated three purported questions of law:

1)Whether an agreement made without consideration is enforceable. (I note…

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: [2006] VSC 176
Decision Date: 10 May 2006

CaseChat Overview and Summary

In the matter of SMA Projects Australia Pty Ltd against Jovanovic, the dispute involved a claim and counterclaim under Part 9 of the Fair Trading Act 1999, heard and determined in the Victorian Civil and Administrative Tribunal (VCAT). The central issue in this case was whether the reasons given by the Tribunal were inadequate or contained an error of law, thereby necessitating an appeal to the Supreme Court. The Tribunal had dismissed the respondent's counterclaim and ordered the appellant to pay the respondent's costs of the claim. The respondent argued that the Tribunal's oral reasons were inadequate and contained an error of law.

The primary legal issue before the Supreme Court was whether the oral reasons provided by the Tribunal were sufficient to demonstrate a sound legal basis for its decision, or if they constituted a material error of law. This required a review of the reasoning provided by the Tribunal, considering whether it appropriately addressed the relevant legal principles and factual findings necessary to support the outcome. The respondent contended that the Tribunal's reasons did not adequately explain the basis for dismissing the counterclaim and for ordering costs against the appellant.

The Supreme Court examined the reasoning provided by the Tribunal and concluded that while the reasons were brief, they did not constitute an error of law. The Court found that the Tribunal's decision was supported by a sound understanding of the applicable law and the facts of the case. The reasons, although not detailed in writing, were deemed adequate in the context of the oral proceedings. Consequently, the Court dismissed the appeal, holding that the Tribunal's decision was correct and no error of law was present. The appeal was therefore dismissed with costs.

Orders