Voitin v GP Building Holdings Pty Ltd & Anor - [2023] HCATrans 82

[2023] HCATrans 082

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M75 of 2022

B e t w e e n -
CLARE MAREE VOITIN
Applicant
and
GP BUILDING HOLDINGS PTY LTD (ACN 145 944 163)
First Respondent
ROUBAL BEIRUTI
Second Respondent
Application for special leave to appeal

EDELMAN J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 9 JUNE 2023, AT 1.59 PM

EDELMAN J: In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR P.G. CAWTHORN, KC appears with MR D.H. CONNORS and MR T.B. GORTON for the applicant. (instructed by Rothwell Lawyers)

MR D.J. FARRANDS, KC appears with MS L.E. MILLS for the respondents. (instructed by SLF Lawyers)

EDELMAN J: Yes, Mr Cawthorn.

MR CAWTHORN: This Court in Farah v Say-Dee and the Full Federal Court in Grimaldi settled a number of issues concerning the two limbs of Barnes v Addy liability, particularly the requisite quality of knowledge to found liability. What those decisions did not settle was whether a finding of knowing receipt as opposed to knowing assistance required the standard of comfortable satisfaction propounded by Briginshaw.

GLEESON J: Mr Cawthorn, why does that matter in circumstances where the Court of Appeal said that the appropriate approach was to apply the standard in section 140 of the Evidence Act?

MR CAWTHORN: Well, section 140 has the third limb, which is about the gravity of the allegations. These were grave allegations. They concerned a knowing receipt of trust money. If trust money is received, self‑evidently, we would say something that involves dishonesty, is money that does not belong to the person. It is known not to belong to the person. And they know they have to return it. So, we submit that the third limb of section 140 was engaged and Briginshaw was also engaged.

GLEESON J: But, Mr Cawthorn, at paragraph 91 of the Court of Appeal’s reasons, the Court of Appeal said:

the judge was required to have the principles explained in Briginshaw ‘in mind’.

So, what is the issue?

MR CAWTHORN: Paragraph 91, line 5 said:

the judge’s invocation of Briginshaw and the presumption of innocence on the ultimate question of knowledge was in error.

GLEESON J: That was an error, because the reference to presumption of innocence by Sir Owen Dixon only related to a finding of criminality.

MR CAWTHORN: Yes, but the invocation – what the Court of Appeal said was the judge’s invocation of Briginshaw was an error, that is what we say – we say the Court of Appeal ought to have applied Briginshaw and not have found the judgment was in error. We submit, in ‑ ‑ ‑

EDELMAN J: Mr Cawthorn, it is rather difficult to read that sentence saying that the judge’s invocation of Briginshaw was in error as a suggestion that the Court of Appeal is saying that Briginshaw did not…

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 Voitin v GP Building Holdings Pty Ltd & Anor

Details

AGLC: Voitin v GP Building Holdings Pty Ltd & Anor [2023] HCATrans 82
Case: [2023] HCATrans 82
Decision Date

CaseChat Overview and Summary

In *Voitin v GP Building Holdings Pty Ltd & Anor*, the Supreme Court of New South Wales considered a dispute concerning the alleged breach of a building contract. The plaintiff, Mr Voitin, sought damages from the defendants, GP Building Holdings Pty Ltd and another party, for alleged defects in construction work carried out at his property. The core of the dispute revolved around whether the defendants had fulfilled their contractual obligations and whether the plaintiff had suffered loss as a result of any alleged breaches.

The primary legal issue before Gleeson J was to determine whether the building works were completed in accordance with the terms of the contract and, if not, whether the plaintiff was entitled to damages for the rectification of any defects. This involved an assessment of the evidence presented by both parties regarding the quality of the workmanship and the extent of any alleged non-compliance with the contract specifications.

Gleeson J's reasoning focused on the interpretation of the building contract and the application of common law principles relating to breach of contract and damages. The court carefully examined expert evidence concerning the alleged defects and considered whether these defects constituted a breach of the implied warranty of good and workmanlike performance. The judge ultimately found that certain defects did exist and that these amounted to a breach of contract by the defendants, entitling the plaintiff to compensation. The court ordered the defendants to pay damages to the plaintiff for the cost of rectifying the identified defects.

Orders