Yahome Pty Ltd v Delic - [2013] VSC 52

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

JUDICIAL REVIEW AND APPEALS LIST

S CI 2012 3756

YAHOME PTY LTD (ACN 123 170 703)	Plaintiff
v
ROSE DELIC and OTHERS	Defendants

---

JUDGE:	DALY AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	15 October 2012
DATE OF JUDGMENT:	28 February 2013
CASE MAY BE CITED AS:	Yahome Pty Ltd v Delic
MEDIUM NEUTRAL CITATION:	[2013] VSC 52

---

JUDGMENT

---

APPEAL from Victorian Civil and Administrative Tribunal – Procedural fairness – Refusal to grant an adjournment – AON Risk Services Pty Ltd v Australian National University (2009) 239 CLR 175 applied – Tribunal’s duty to self represented litigants – Duty of Tribunal to arrange interpreters and expert witnesses – Application for leave to appeal and appeal dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms H.J.E. Van den Heuvel	Ferraro & Company Pty Ltd
For the Defendants	Mr A.P. Dickenson	Johnston Construction Lawyers

HER HONOUR:

Yahome Pty Ltd (“Yahome”) is a company engaged in construction of new residential developments. The principal of Yahome is Mr Xiaoy Lin (“Mr Lin”). Ms Rose Delic, Mr Thanh Huynh and Ms Kristine Caberoy (“purchasers”) are the owners of three townhouses constructed by Yahome in Burnside Heights. The three townhouses were part of a group of eight constructed by Yahome under eight separate building contracts with Ms Linh Thuy Nguyen (“vendor”). The purchasers entered into “off the plan” sales contracts with the vendor while the townhouses were under construction.

Upon or shortly prior to the settlement, each of the purchasers complained to the vendor (either directly or through the vendor’s agent) regarding the state of the townhouses, and apparent defects that had not been rectified by Yahome. Further, upon taking possession of the townhouses, each of the purchasers became aware of other defects in the townhouses. Communications between the purchasers, the vendor, and Yahome did not resolve the purchasers’ grievances. Ultimately, the purchasers commenced a proceeding in the Victorian Civil and Administrative Tribunal (“VCAT”),[1] from which this appeal is brought.[2] In January 2012 they engaged a solicitor, Johnston Construction Lawyers. Ferraro & Co had already been engaged to act on behalf of Yahome.
[1]Proceeding No. D672/2011.
[2]By reason of the orders of Mukhtar AsJ on 25 July 2012, Yahome’s application for leave to appeal was referred to be heard together with the appeal.

In the VCAT proceeding, the purchasers claimed damages from Yahome for the cost of the rectification of the alleged defective works (“defects”), and consequential losses said to arise out of the need to rectify the defects, such as the cost of alternative accommodation, and the cost of the removal and storage of furniture. They relied upon building inspection reports and expert evidence regarding the cost of rectification from two building consultants. In its defence in the VCAT proceeding, Yahome did not expressly deny the existence of the defects. It did not file any expert evidence within the time provided for by orders made at a directions…

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 Yahome Pty Ltd v Delic

Details

AGLC: Yahome Pty Ltd v Delic [2013] VSC 52
Case: [2013] VSC 52
Decision Date: 28 February 2013

CaseChat Overview and Summary

Yahome Pty Ltd was involved in a legal dispute with Delic, which was heard and determined by the court. The case originated from a decision by the Victorian Civil and Administrative Tribunal, where the Tribunal had refused to grant an adjournment to Yahome Pty Ltd, which argued that this refusal amounted to a breach of procedural fairness. The dispute was subsequently appealed to the higher court, which was tasked with determining whether the Tribunal's refusal to grant an adjournment was justified and whether the procedural fairness was upheld.

The court was required to decide whether the Tribunal's refusal to grant an adjournment constituted a breach of procedural fairness. This involved examining the principles established in AON Risk Services Pty Ltd v Australian National University, where it was held that procedural fairness is a fundamental requirement in administrative law. Additionally, the court had to consider the Tribunal's duty towards self-represented litigants and whether the Tribunal had adequately fulfilled its duty to arrange for interpreters and expert witnesses as needed. The overarching issue was whether the Tribunal's actions met the standards of procedural fairness as required by law.

In reaching its decision, the court considered the principles of procedural fairness and the specific circumstances of the case. The court found that the Tribunal had acted within its discretion in refusing the adjournment, and that the Tribunal's decision did not breach the principles of procedural fairness. The court emphasised that the Tribunal had a duty to ensure fairness but was not obligated to grant every request for an adjournment. The court also determined that the Tribunal had adequately fulfilled its duty to arrange for interpreters and expert witnesses, as there was no evidence to suggest otherwise. Consequently, the appeal was dismissed, and the decision of the Tribunal was upheld.

The court's final orders were that the appeal be dismissed and that the decision of the Tribunal remain in place. The court did not grant leave to appeal to a higher court, affirming the Tribunal's determination. The court's ruling underscored the importance of procedural fairness while affirming the Tribunal's discretion in managing the proceedings.

Orders