Song v M.T.V. Building & Construction Pty Ltd - [2025] VSC 3

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2023 04223

Zhendong Song	First Applicant
Jie Song	Second Applicant
v
M.T.V. Building & Construction Pty Ltd	Respondent

---

JUDGE:	Quigley J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 November 2024
DATE OF JUDGMENT:	17 January 2025
CASE MAY BE CITED AS:	Song v M.T.V. Building & Construction Pty Ltd
MEDIUM NEUTRAL CITATION:	[2025] VSC 3

---

PRACTICE AND PROCEDURE — Application for extension of time to file notice of appeal pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) — Delay of one day — User error on RedCrest e-filing system — Self-represented litigants —Adequate explanation — Time period required for extension trifling — No prejudice — Extension granted —Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 148(2), (5).

PRACTICE AND PROCEDURE — Application by non-solicitor for leave to represent company — Supreme Court (General Civil Procedure) Rules 2015 r 1.17 — Repeated advice to non‑solicitor of requirements to make formal application — Late filing of notice of appearance — No proper participation in proceeding until trial — Attempted late filing of affidavit attaching extensive pseudo‑legal material — Oral application at trial — Application based on pseudo‑legal arguments — Challenge to jurisdiction of the Supreme Court of Victoria — Not in the interest of justice to grant leave — Leave to appear refused — Worldwide Enterprises Pty Ltd v Silberman & Anor [2009] VSC 165; Lettieri v Strangio [2008] VSCA 205, applied —Nelson v Greenman & Anor [2024] VSC 704, considered.

PRACTICE AND PROCEDURE — Costs — Self‑represented litigants — Self‑represented litigants entitled to costs orders and to recover disbursements — Cachia v Hanes (1994) 179 CLR 403, Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333; Hoe v Lennox [2020] VSC 262, McKechnie v Ma’a (in his capacity as the Governor of Port Phillip Prison) [2024] VSC 768, Ganesh v National Australia Bank Ltd [2021] VSCA 45, considered.

ADMINISTRATIVE LAW — Appeal from the Victorian Civil and Administrative Tribunal — Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148 — Domestic building contract — Whether question of law with real prospect of success identified — Leave to appeal granted on one question of law only — Omission by Tribunal to consider defect claimed by owners in decision and orders — Appeal allowed on one question of law only — Consequent orders.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Self-represented
For the Defendant	No appearance

TABLE OF CONTENTS

Introduction

Background

Permit and Contract
Stormwater dispute
Disputed Variations
Fixing stage invoice
DBDRV Orders
Owners’ notice to show cause
Application to the Tribunal
Orders of the Tribunal
Appeal to the Supreme Court of Victoria

Questions of Law and Grounds of Review

Questions of law
Grounds of Review
Question 1
Question 2
Question 3
Question 4
Question 5

Preliminary Matters

Extension of time to…

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 Song v M.T.V. Building & Construction 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: [2025] VSC 3
Decision Date: 17 January 2025

CaseChat Overview and Summary

The case of Song v M.T.V. Building & Construction Pty Ltd involved the appellants, who were self-represented litigants, appealing against the decisions made by the Victorian Civil and Administrative Tribunal. They sought to challenge the Tribunal's decision regarding a domestic building contract and were represented by someone who had repeatedly been advised to make a formal application to represent the company. The appellants sought an extension of time to file their notice of appeal due to an error in the RedCrest e-filing system and argued for leave to represent the company despite repeated advice against it. They also contended for costs in relation to their self-representation.

The court had to decide whether the appellants' application for an extension of time to file a notice of appeal was justified, given the one-day delay due to user error in the e-filing system. The court also needed to determine whether it was in the interests of justice to grant leave for the non-solicitor to represent the company, considering the appellants' history of failing to comply with procedural requirements and their late submission of an affidavit with pseudo-legal arguments. Additionally, the court had to address the issue of costs for the self-represented litigants.

The court granted the appellants' application for an extension of time to file the notice of appeal, finding that the delay was trifling and there was no prejudice caused to the respondent. However, the court refused the appellants' application for leave to represent the company, citing the lack of formal application and their failure to properly participate in the proceedings. The court also noted that the appellants' arguments were based on pseudo-legal material and were not in the interest of justice. Regarding costs, the court ruled that the self-represented litigants were entitled to costs orders and to recover disbursements, in line with previous decisions.

The court ordered that the appellants' application for an extension of time to file the notice of appeal was granted, but their application for leave to represent the company was refused. The court also ordered that the appellants were entitled to costs for their self-representation, following established legal principles.

Orders