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Thurin v Krongold Constructions (Aust) Pty Ltd

Thurin v Krongold Constructions (Aust) Pty Ltd

Case [2024] VSC 42 16 February 2024

Jurisdiction

Limitation Periods

Statutory Interpretation

Administrative Law

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
TECHNOLOGY, ENGINEERING AND CONSTRUCTION LIST

S ECI 2023 00644

DAVID THURIN	First Plaintiff
and
LISA THURIN	Second Plaintiff
v
KRONGOLD CONSTRUCTIONS (AUST) PTY LTD (ACN 103 839 149)	Defendant

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JUDGE:	Garde J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 January 2024
DATE OF JUDGMENT:	16 February 2024
CASE MAY BE CITED AS:	Thurin v Krongold Constructions (Aust) Pty Ltd
MEDIUM NEUTRAL CITATION:	[2024] VSC 42

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JURISDICTION – Federal jurisdiction – Victorian Civil and Administrative Tribunal (VCAT) lacking jurisdiction to hear and determine federal issues – Referral of matter by VCAT to Supreme Court under Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’) s 77(3) – Nature and extent of the power of the Supreme Court to extend limitation periods under VCAT Act s 77(4) – Purpose of VCAT Act s 77(4) – Meaning and effect of s 77(4) – Whether proceeding commenced in the Supreme Court involves the same subject matter as a proceeding in VCAT – Whether late commencement of proceeding attributable to additional steps the plaintiffs were required to take to have proceeding determined by the court – Whether it is fair and reasonable to extend the limitation period.

LIMITATION OF ACTIONS – Building dispute referred by VCAT to Supreme Court – Proceeding in VCAT commenced within limitation periods in Building Act 1993 (Vic) (‘Building Act’) ss 134 and 134A – Parties in VCAT on notice of subject matter within limitation period – Power of Supreme Court under VCAT Act s 77(4) to extend limitation period – Whether VCAT Act s 77(4) and Building Act ss 134 and 134A are inconsistent – Whether VCAT Act s 77(4) or Building Act ss 134 and 134A more specific provision – Intention of Parliament in enacting VCAT Act s 77(4).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr M Roberts KC Dr C Parkinson KC Mr L Stanistreet	Herbert Smith Freehills
For the Defendant	Mr J Twigg KC Dr K Weston-Scheuber	Neslihan Dastan
For Casper Architecture and Design Pty Ltd (ACN 078 809 604)	Mr N Hopkins KC Mr K Naish	DLA Piper Australia

HIS HONOUR:

Introduction

I have two applications before me concerning the power of the Supreme Court to extend limitation periods under s 77(4) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’). By a summons filed 12 October 2023, David and Lisa Thurin seek to join Casper Architecture and Design Pty Ltd (ACN 078 809 604) (‘Casper’) as a defendant to this proceeding. Likewise, by a summons filed 21 November 2023, the current defendant, Krongold Constructions (Aust) Pty Ltd (ACN 103 839 149) (‘Krongold’) seeks to join Casper as a defendant to this proceeding for the purposes of a contribution claim under Part IV and an apportionment claim under Part IVAA of the Wrongs Act 1958 (Vic) (‘Wrongs Act’). Krongold also seeks to join Swan Hardware & Staff Pty Ltd (ACN 005 273 165), the trustee of the…

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 Thurin v Krongold Constructions (Aust) Pty Ltd

Details

AGLC: Thurin v Krongold Constructions (Aust) Pty Ltd [2024] VSC 42
Case: [2024] VSC 42
Decision Date: 16 February 2024

CaseChat Overview and Summary

Thurin v Krongold Constructions (Aust) Pty Ltd involved a dispute concerning the jurisdiction of the Victorian Civil and Administrative Tribunal (VCAT) and the power of the Supreme Court to extend limitation periods. The plaintiffs, Thurin, alleged that the defendant, Krongold Constructions, had breached building contracts. Initially, the matter was heard by VCAT, but it was later referred to the Supreme Court due to jurisdictional issues. The core legal questions revolved around the extent of the Supreme Court's authority to extend limitation periods under the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) section 77(4), and whether this extended to situations where the VCAT proceeding was initiated within the statutory limitation periods set out in the Building Act 1993 (Vic) sections 134 and 134A.

The court needed to determine the nature and purpose of the power granted by VCAT Act section 77(4) and whether it allowed for the extension of limitation periods in cases where the initial VCAT proceedings were timely. Additionally, the court had to consider whether the Supreme Court's power under section 77(4) could be exercised to extend limitation periods in cases where the late commencement of the proceeding was due to the additional steps required for the case to be heard by the court. The court also examined whether it was fair and reasonable to extend the limitation period in this context.

The Supreme Court held that VCAT Act section 77(4) did not empower it to extend limitation periods in situations where the VCAT proceeding was commenced within the limitation periods prescribed by the Building Act. The court reasoned that the purpose of section 77(4) was to provide a mechanism for the Supreme Court to address jurisdictional errors by VCAT, not to extend limitation periods that were already satisfied. Furthermore, the court found that the Building Act was the more specific statute governing the limitation periods in building disputes, and therefore, it took precedence over the more general provision in the VCAT Act. Consequently, the Supreme Court declined to extend the limitation periods, affirming that it was not fair and reasonable to do so given the plaintiffs' prior compliance with the statutory timeframes.

The final orders of the court were that the proceeding in the Supreme Court was dismissed for being out of time, and the referral from VCAT was quashed. The plaintiffs' application for an extension of the limitation period was denied.

Orders