Winslow Constructors Pty Ltd v Mt Holden Estates Pty Ltd - [2004] VSCA 159

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 7134 of 2003

WINSLOW CONSTRUCTORS PTY. LTD. Appellant

MT HOLDEN ESTATES PTY. LTD. Respondent

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No. 7345 of 2003

LANIGAN BALDWIN PTY. LTD. Appellant

MT HOLDEN ESTATES PTY. LTD. Respondent

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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

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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.

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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 S.G. O’Bryan, S.C.
Mr D.A. Klempfner

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…

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.

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Details

Case: [2004] VSCA 159
Decision Date: 8 September 2004

CaseChat Overview and Summary

The Victorian Civil and Administrative Tribunal (VCAT) was tasked with a dispute between Winslow Constructors Pty Ltd, a construction company, and Mt Holden Estates Pty Ltd, a land developer. The central issue was whether the works carried out by Winslow Constructors were subject to the Domestic Building Contracts Act 1995 (DBCA), and consequently, whether VCAT had jurisdiction to hear a claim for damages under that Act. Mt Holden Estates argued that the works performed by Winslow Constructors were integral to the subdivision of land and should be governed by the Subdivision Act 1988, rather than the DBCA.

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