Wilson v Kyle

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2017 02023

MICHAEL WILSON	Appellant
v
PETER KYLE	Respondent

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JUDGE:	Gorton J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 August 2021
DATE OF JUDGMENT:	1 September 2021
CASE MAY BE CITED AS:	Wilson v Kyle
MEDIUM NEUTRAL CITATION:	[2021] VSC 537

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ADMINISTRATIVE LAW – Appeal from a decision of the Victorian Civil and Administrative Tribunal – Domestic building dispute – Whether builder lawfully terminated contract – Whether builder in substantial breach of the contract – Evidence of capacity to pay contract price – Leave to appeal granted on one ground – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P van Eps
For the Defendant	Mr A Schlicht	Vadarlis & Associates

TABLE OF CONTENTS

A.  Background................................................................................................................................... 1

B.  Ground 1 – Was there legal error in the Tribunal’s finding that Mr Kyle was not in ‘substantial breach’ of the contract at the time he terminated?................................................................. 2

C.  Ground 2 – Did the Tribunal err in law in determining that Mr Wilson had failed to produce written or other reasonable evidence to pay the contract price?........................................ 6

C.1.The approach of, and factual findings made by, the Tribunal...................................... 6

C.2.Mr Wilson’s legal challenges.............................................................................................. 9

C.3.Were the surrounding communications relevant?........................................................ 10

C.4.Did the Tribunal wrongly fail to have regard to the fact that Mr Wilson had paid the outstanding amount owing?............................................................................................ 11

C.5.Did the Tribunal misconstrue the contractual requirement?...................................... 11

C.6.Was the Tribunal bound to have regard to the fact that Mr Kyle could have, but did not, contact Mr Wilson’s bank directly?................................................................................. 12

D.  Ground 3 – Was the notice to remedy ‘conjunctive’ and, if so, did the Tribunal err?. 13

E.  Ground 4 – Was the Tribunal obliged to consider whether the breach was of an essential term?........................................................................................................................................................ 14

F.  Final comments and disposition.............................................................................................. 15

HIS HONOUR:

A.  Background

1. Mr Wilson, the applicant, owns a property in Bena, Gippsland.  He engaged Mr Kyle, the respondent, to build him a house on that property for $337,190.  Difficulties arose between them.  Mr Kyle sought payment of an invoice for $50,578.50 for work done, and evidence of a capacity to pay the contract price.  The latter request was made pursuant to cl 11.3 of the building contract, which required Mr Wilson to provide Mr Kyle with ‘written or other reasonable evidence’ that he had the ‘capacity to pay the balance of the Contract Price or any variation’ within 14 days of being asked to do so.  On 10 December 2014, Mr Kyle commenced a proceeding in the Victorian Civil and Administrative Tribunal (‘the Tribunal’), in which he claimed $50,578.50 for the overdue invoice and an order that Mr Wilson provide evidence of his capacity to pay the contract price.  Shortly after, by letter dated 12 December 2014, Mr Kyle gave formal written notice to Mr Wilson of his contention that Mr Wilson was in breach of the contract by failing…