Swintons Pty Ltd v Age Old Builders Pty Ltd - [2005] VSCA 217

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 4181 of 2003

SWINTONS PTY LTD

Appellant

(Respondent below)

AGE OLD BUILDERS PTY LTD

Respondent

(Appellant below)

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JUDGES:	CHARLES, CALLAWAY and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 May and 28 June 2005
DATE OF ORDERS:	28 June 2005
DATE OF REASONS:	2 September 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 217	2nd Revision 13 September 2005

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Statutory interpretation – Domestic building contracts – Clauses requiring compulsory reference to arbitration – Whether Domestic Building Contracts Act 1995 prohibits reference of existing disputes to arbitration – Plain meaning of section – Extrinsic material – Domestic Building Contracts Act 1995, sections 14, 53, 57 and 132.

Practice and Procedure – Appeals – Outline of submissions – Practice Statement CA1 of 1995 [1995] 1 VR 249, para.9 – Failure to comply – Adjournment of appeal at cost of non-complying party – Procedure to be followed when comprehensive submissions warranted.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr E.N. Magee, Q.C. with Ms P. Neskovcin	Hoeys Lawyers
For the Respondent	Mr G.J. Digby, Q.C. with Mr J.H. Shaw	Mason Sier Turnbull

CHARLES, J.A.:

On Tuesday 28 June 2005 this Court pronounced orders dismissing the appeal in this matter. Chernov, J.A. has prepared reasons (which I have read) for joining in the making of these orders, and I agree with his Honour’s reasons.

The appeal was originally listed for hearing on 30 May 2005, at which stage the Court and the respondent had a three-page amended outline of the appellant’s submissions dated 26 May 2005. This was a most uninformative document.[1] At the outset of the hearing senior counsel for the appellant proffered a lengthy document in substitution for it. The respondent’s counsel complained, with every justification, that they were taken by surprise and that the new document provided a full written argument of the appellant’s case, which is contrary to the provisions of Practice Statement CA 1 of 1995[2]. The case was adjourned, at the appellant’s expense, so that an outline of submissions in conformity with that Practice Statement might be filed and provided to the respondent.[3]
[1]With commendable candour, senior counsel for the appellant informed the Court that he took sole responsibility for that amended outline.
[2][1996] 1 V.R. 249.
[3]The obligations of counsel in drafting outlines of argument have recently been set out in a helpful paper, “Of Stuff and Silk”, by Dr C.L. Pannam, Q.C., contained in the Victorian Bar News, Winter 2000, at p.55.

Paragraph 9 of that Practice Statement reads:

“Outlines of submissions should not take the form of a written argument or be of inordinate length. Their purpose is to identify and summarise the points, not to argue them fully on paper. They should contain a succinct statement of each major contention of fact or law together with the relevant references to pages of the appeal book, authorities and legislation.”

Neither the amended outline of 26 May 2005 nor the document proffered at the beginning…

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: [2005] VSCA 217
Decision Date: 2 September 2005

CaseChat Overview and Summary

In the case of Swintons Pty Ltd v Age Old Builders Pty Ltd, the primary dispute was whether a clause in a domestic building contract that mandated compulsory arbitration of existing disputes was prohibited by the Domestic Building Contracts Act 1995. The matter was heard and determined by the Supreme Court of Victoria. The appellant, Swintons, argued that the statutory provisions prevented the enforcement of such a clause, while the respondent, Age Old Builders, contended that the clause was valid and enforceable. The court was tasked with interpreting relevant sections of the Act to resolve the dispute.

The court had to decide whether the plain meaning of the Domestic Building Contracts Act 1995 sections 14, 53, 57 and 132 prohibited the reference of existing disputes to arbitration. The central issue was whether the statutory provisions precluded the enforcement of contractual arbitration clauses that sought to apply to disputes that had arisen prior to the execution of the contract. The court also considered whether extrinsic material could be used in interpreting these sections. Furthermore, the court examined the appellant's compliance with the Practice Statement CA1 of 1995 [1995] 1 VR 249, para.9, concerning the outline of submissions, and the consequences of non-compliance, such as the adjournment of the appeal at the cost of the non-complying party.

The court found that the plain meaning of the relevant sections of the Domestic Building Contracts Act 1995 did not prohibit the reference of existing disputes to arbitration. It held that the statutory provisions did not preclude the enforcement of contractual arbitration clauses that applied to pre-contractual disputes. The court also determined that extrinsic material could be considered in interpreting the provisions. As for the appellant's failure to comply with the Practice Statement CA1 of 1995 [1995] 1 VR 249, para.9, the court decided to adjourn the appeal at Swintons' cost due to the complexity of the issues. The court concluded that comprehensive submissions were warranted in this case.

The final orders of the court were that the appeal was to be adjourned at the cost of the appellant, Swintons Pty Ltd. The court further directed the parties to file comprehensive written submissions addressing the issues of statutory interpretation and the enforceability of the arbitration clause within a specified timeframe.

Orders