SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 7134 of 2003
WINSLOW CONSTRUCTORS PTY. LTD. Appellant
v.
MT HOLDEN ESTATES PTY. LTD. Respondent
---
No. 7345 of 2003
LANIGAN BALDWIN PTY. LTD. Appellant
v.
MT HOLDEN ESTATES PTY. LTD. Respondent
---
JUDGES: | CALLAWAY and BUCHANAN, JJ.A. and HANSEN, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 28 July 2004 | |
DATE OF JUDGMENT: | 8 September 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 159 | |
---
Building and construction – Design and civil engineering works for subdivision of land – Claim by developer in Victorian Civil and Administrative Tribunal for damages under Domestic Building Contracts Act 1995 – Whether dispute a “domestic building dispute” under that Act – Whether works fell within that Act or Subdivision Act 1988 – Jurisdiction of Victorian Civil and Administrative Tribunal – Statutory interpretation – Subdivision Act 1988 - Domestic Building Contracts Act 1995 ss.3, s.5, s.54.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Appellant Winslow | Mr A.C. Archibald, Q.C. | L.F. Sartori |
| For the Appellant Lanigan For the Respondent | Mr P. Zappia Mr P. Zappia Mr S.G. O’Bryan, S.C. | Herbert Geer & Rundle Rossi Ryan & Raniga |
CALLAWAY, J.A.:
BUCHANAN, J.A.:
We have had the advantage of reading in draft the reasons for judgment prepared by Hansen, A.J.A. We agree that these appeals should be allowed, and generally for the reasons his Honour gives.
In our opinion:
(a)In s.5 of the Domestic Building Contracts Act 1995 “a home” does include “homes”, so that, for example, paving work for two adjacent homes, would be “associated work” within the meaning of s.5(1)(a)(i), but that does not change the operation of the section, which does not apply to work performed in contemplation of merely prospective homes on a proposed residential subdivision.
(b)Section 5(1)(a)(i) does not apply, because, for the reason we have just given, there was insufficient nexus with the erection or construction of a home or homes for the work done by the appellants to be “associated work” of the kind referred to in that sub-paragraph.
(c)Section 5(1)(a)(ii) does not apply, because there was no provision of the specified services to a property on which it could be said that a home or homes was or were to be. Again homes were simply in prospect.
(d)Section 5(1)(e) does not apply, because, even if “a building” in that paragraph does include a home, the work the appellants did was not work in respect of which a building permit was required under the Building Act 1993.
(e)The other paragraphs of s.5(1) need not be considered, because paragraph (f) depends on the preceding paragraphs and it was conceded that, if Winslow’s appeal succeeded, Lanigan’s appeal must succeed too. We therefore say nothing about s.5(1)(g).
We would also leave open whether “a building” in s.5(1)(e) might include a home. We agree with the learned trial judge that, in Fletcher Construction Australia
Ltd. v. Southside Tower Developments Pty. Ltd.[1], Byrne, J. did not decide that “a building” in s.5(1)(e) does not include a home. On…
Keep reading for free
Create a free CaseChat account to read Winslow Constructors Pty Ltd v Mt Holden Estates Pty Ltd and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2004] VSCA 159
- Decision Date
CaseChat Overview and Summary
The legal issues VCAT had to resolve included determining whether the works constituted a "domestic building dispute" under the DBCA, whether the DBCA applied to the works in question, and if the works were covered by the Subdivision Act 1988. Additionally, the tribunal needed to interpret the definitions in both the DBCA and the Subdivision Act 1988 to ascertain the correct jurisdiction for the dispute.
VCAT found that the works in question did not fall within the scope of the DBCA as they were integral to the subdivision of land. Consequently, the tribunal did not have jurisdiction to hear the claim for damages under the DBCA. Instead, the works were subject to the Subdivision Act 1988, and any disputes arising from these works should be addressed under that Act. The tribunal meticulously interpreted the statutory definitions and legislative purposes to conclude that the works were not domestic building works for the purposes of the DBCA, and therefore, VCAT did not have the jurisdiction to entertain the claim for damages under the DBCA.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.