Walia v Stay Cool Heating and Airconditioning
[2012] VSC 449
•28 SEPTEMBER 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
No S CI 2010/00195
| MANJIT SINGH WALIA | Appellant |
| v | |
| STAY COOL HEATING & AIRCONDITIONING PTY LTD (ACN 072 687 275) | Respondent |
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JUDGE: | DIXON J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 25 SEPTEMBER 2012 | |
DATE OF JUDGMENT: | 28 SEPTEMBER 2012 | |
CASE MAY BE CITED AS: | WALIA v STAY COOL HEATING & AIRCONDITIONING | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 449 | |
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APPEAL – Appeal from a decision of the Victorian Civil and Administrative Tribunal sitting in the civil claims list – Building dispute – Inadequate reasons for finding on counter claim – Court remits matter to the tribunal for the provision of further and better reasons – challenge pursuant to liberty to apply to adequacy of further and better reasons – application turns on its own facts.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr A Singh, solicitor | Verduci Lawyers |
| For the Respondent | Mr M Bramich, solicitor | Bramich Legal |
HIS HONOUR:
On 22 December 2009, The Victorian Civil and Administrative Tribunal heard a dispute in the civil claims list between the appellant (‘the developer’) and the respondent (‘the contractor’). The developer appealed the tribunal’s order on a single ground – that the tribunal failed to give adequate reasons for the findings in support of orders made.
On 23 November 2010, Osborn J heard and determined the appeal, which succeeded. The court stayed the tribunal’s order and remitted the proceeding to the tribunal, constituted by the same member, with a direction that it provide further and better reasons for its finding as to the quantum of the sum that should be allowed on the cross claim, namely $3,304. Liberty to apply was reserved.
The history of the application before the tribunal, its reasons for its decision and the reasoning of this court in remitting the matter are set out in Walia v Stay Cool Heating & Airconditioning Pty Ltd.[1] As subsequent applications have been brought pursuant to liberty to apply, the reasoning of Osborn J remains central in this proceeding and, in large part, defines the outcome on this application.
[1][2010] VSC 565.
I need not set out here Osborn J’s reasoning. The identified deficiency in the tribunal’s reasoning did not permit an inference of underlying error of law to be drawn; it was simply a case of deficient reasons. In fashioning appropriate relief, Osborn J gave the tribunal the opportunity to provide further reasons for the figure of $3,304, which it had awarded on the cross, claim, that being the identified deficiency.
I pause to note that by the tribunal’s original decision, the contractor was found entitled to the sum of $6,000 and the developer recovered damages allowed at $3,304, resulting, after set-off, in a conclusion that the developer owed the contractor $2,696. The tribunal’s order was for $2,196. The difference of $500 is not explained, but the developer raised a $500 variation in the reconciliation before me. Because the identified deficiency in the reasons was limited to the allowance of $3,304 in quantifying the counterclaim that is not a matter with which I am presently concerned. A party cannot use liberty to apply to revisit the court’s reasons in this fashion.
It is necessary to describe the events that have transpired since judgment in the appeal.
On 20 June 2011, the tribunal published further reasons. They were in these terms:
1.This proceeding has been remitted back to myself pursuant to an order made by his Honour Justice Osborn on 23 November 2010. The directions by his Honour is that I provide further and better reasons for my finding as to the quantum of the sum that I allowed for the respondent on the cross claim being $3,304.00
2. With respect to the respondent’s quantum totalling $17,091.44:
(a)I disallowed the respondent’s claim for legal costs of $1,100.00
(b)I disallowed the fees claimed by JSR Services of $13,809.00, Sharp and Pendrey of $594.00 and O’Connor Associates Pty Ltd of $3,277,50.
(c)I disallowed the sum of $1,885.14 with respect to unit 2 given my acceptance that the airflow tests by Mr Romano to that unit were satisfactory.
3.On my finds (sic) there were partial airbalance issues only with units 1 and 4 but there were also heat issues which were not the fault of the applicant. The heat issues were a bigger issue than the airbalance. I attributed 25% to the airbalance and the rest to heating and extreme weather experienced. The respondent’s lack of significant concerns at the time on perceived issues worked against him.
4.(a) I allow $816.00 with respect to ducts/dampeners. This issue was restricted to the master bedroom of unit 1 principally.
(b)The respondent failed to prove on the balance of probability that the issue with the condenser was the responsibility of the applicant.
(c)Other issues I considered were matters between the respondent and the respondent’s builder.
5. I therefore allowed the respondent a total amount of $3,304.00
The developer remained dissatisfied with the adequacy of the tribunal’s reasoning and exercised liberty to apply pursuant to Osborn J’s order.
On 13 April 2012, McMillan J ordered that the proceeding be again remitted to the tribunal. McMillan J directed that the tribunal provide further and better reasons (in addition to the reasons provided pursuant to Osborn J‘s judgment) for its finding as to the quantum of the sum of $3,304 allowed on the cross claim. It appears that the developer’s solicitors were also corresponding with the Registrar of the tribunal.
Following the second remitter, the tribunal again published further reasons on 6 July 2012, with correspondence from the Registrar stating: ‘Please be advised that [the] Member has advised that his last response is his final response and no further response will be provided to your correspondence’. The further reasons were in the following terms:
1.This proceeding has been remitted back to myself pursuant to an order made by her Honour Justice McMillan dated 13 April 2012. The order by her Honour is that further and better reasons (in addition to reasons already provided) be given as to the quantum of the sum allowed on the cross claim being $3,304.00
2. The quantum sought by the respondent initially totalled $17,091.44.
3.A significant number of the issues that the respondent has alleged against the applicant are not the responsibility of the applicant but have occurred through the actions of the builder and in the manner that the builder has constructed the property.
4.On the evidence and arguments submitted by the parties I did not accept that the respondent had any claim against the applicant whatsoever with respect to units 2 and 3.
5.That with respect to units 1 and 4 there were partial airbalance issues that were the responsibility of the applicant but there were heat/other issues with those units as well and that these issues were significantly larger than the airbalance issues. I attributed 25% to airbalance matters and 75% to other issues not attributable to the applicant.
6.I allowed the respondent the sum of $816 with respect to the materials being ducts/dampeners in units 1 and 4.
7.With respect to other matters I acknowledged that the respondent’s witness O’Connor Associates Pty Ltd provided estimates as to damage claimed:
(a)I have disallowed the approximate allowance for duct inspection and access panels which delete the sum of $2,000.00 off per unit.
(b)I have reduced the remaining figure of $6,200.00 by 20% as it was an estimate giving an amount of $4,976.00 per unit.
(c)I have allowed 25% off the figure of $4,976.00 giving an amount of $1,244.00 per unit.
8. The respondent’s loss is therefore:
(a) $1,244.00 x 2 (units 1 and 4) $2,488.00
(b) Cost of materials $ 816.00
$3,304.00.
9.Apart from what I have previously ordered with respect to costs and disbursements I have disallowed both on the following grounds:
(a)The ultimate figure obtained by the respondent was below $10,000.00.
(b)Additionally pursuant to s 109 of the VCAT Act that there is no proper basis to award any party any further costs and disbursements.
10.The delay in providing my additional reasons has unfortunately arisen because the VCAT registry lost/misplaced the file in this proceeding.
Before me, the developer first contended that $3,804 was the proper sum that the tribunal’s reasoning should explain. This enlivens the $500 discrepancy that I have noted. I reject that submission for the reason already given.
I am satisfied that the tribunal has now explained how it quantified the sum of $3,304. Paragraph 7 of the tribunal’s reasons makes clear that the assessment of the developer’s loss commenced with the ‘estimates as to damage claimed’ that were provided by the witness O’Connor Associates Pty Ltd, who was called for the developer. Regrettably, the tribunal did not in its second further reasons set out what that evidence was but I am satisfied that it can be inferred from paragraph 7 that it was the sum of $8,200 per unit. So much is clear because the remaining figure, after disallowing $2,000 per unit, is $6,200.
The tribunal reasons to an allowance of $1,244 per unit in the following subparagraphs of paragraph 7. Firstly, because it was an estimate, the tribunal reduced by 20% O’Connor’s figure after the disallowance ($6,200). The tribunal then allowed 25% of that reduced figure ($4,976). The allowance of 25% of that reduced figure ($1,240) reflects and follows on the finding expressed at paragraph 5 of the second further reasons. The contractor was only responsible for 25% of the rectification works being the works associated with airbalance matters. In the tribunal’s original reasons, it discusses other matters affecting that apportionment.
Consistently through each set of reasons, the tribunal explained that it allowed rectification of units 1 and 4 only, because it did not find any basis for rectification of units 2 and 3. That finding explains the calculation of the respondent’s loss in paragraph 8(a) of the second further reasons. The tribunal allows the sum of $2,488 (2 units at $1,244 each) to which it adds the cost of materials for units 1 and 4. Careful analysis of these figures shows that there is a small typographical error resulting in an over calculation in favour of the contractor of $8.
This reasoning process demonstrates how the tribunal arrived at the figure of $3,304.
The developer challenged the adequacy of these further reasons, directing the court’s attention to the impossibility of reconciling the matters referred to in paragraph 2 of the further reasons with the statement in paragraph 2 of the second further reasons. These paragraphs state the quantum as initially sought by the contractor and identify the items that the tribunal disallowed. Osborn J did not identify any inadequacy in the reasoning in that respect. These figures are not relevant to the quantification of the $3,304 that was remitted back to the tribunal.
Next, the developer contended that the tribunal has not identified the opening amount from which the reconciliation proceeds. As I have already stated, I am satisfied that the amount was $8,200, sourced from O’Connor’s evidence. The developer then contended that $8,200 was not justified by evidence, but that is not a matter that relevantly arises in this proceeding as leave to appeal was confined to the issue of the adequacy of the tribunal’s reasoning. Whether the finding is unsupported by any evidence is a different question.
I am satisfied that the further reasons do provide a link between the quantum being allowed on the contractor’s claim and the findings made on the merits about that claim which originate in the developer’s evidence called from O’Connor.
I will dismiss the developer’s application brought pursuant to liberty to apply. I will hear from the parties about further orders as, subject to any further submission, I see no reason why the stay on the decision of the tribunal made on 22 December 2009 should not now be lifted and on the question of costs.
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