Applicant v Respondent

1 The applicant, Hi-tech Aluminium Windows Pty Ltd t/a Windows By Design ('Hi-tech'), manufactures windows and doors. The respondent, Maric Developments Pty Ltd ('Maric'), is a builder. In 2013 and 2014 it built an apartment complex in West Footscray and contracted Hi-tech to supply glazed windows for the price of $55,312.99.

2 On 12 April 2022, Maric filed an application against Hi-tech in the Victorian Civil and Administrative Tribunal's Civil Claims List. Maric's claim alleged that Hi-tech had failed to build the glazed windows in accordance with the agreed specifications and had thereby breached their contract, supplied goods which were not fit for purpose and had engaged in misleading or deceptive conduct. It withdrew the last claim. In its original VCAT application, Maric sought as its 'Desired Outcome' 'payment $1,400.00, Exchange/Replace' which amount was claimed as the 'cost to try and repair door 4 in unit 1'.

3 Hi-tech applied to strike out Maric's application under s 75 of the Victorian Civil and Administrative Tribunal Act 1998 ('VCAT Act'), which deals with summary dismissal of a proceeding, or to strike it out under s 78, for conduct of a proceeding causing disadvantage.

4 On 8 August 2023, at a directions hearing, a Member of the Victorian Civil and Administrative Tribunal ('VCAT' or the 'Tribunal') granted Maric leave to file and serve amended points of claim. In its amended points of claim, dated 9 August 2023, Maric sought orders that Hi-tech pay it: the sum of $21,882.40 plus GST for rectification of the windows, the sum of $1,400.00 that it had paid to Hi-tech for failed rectification works or, alternatively, damages for breach of contract.

5 At a further directions hearing on 21 August 2023, before another Tribunal Member, Hi-tech continued to oppose Maric's application and its amended points of claim and sought the striking out of the application under s 75 or s 78 of the VCAT Act.

1. The pleading between the applicant and the respondent is a contractual dispute alleging the respondent supplied out of specification windows and doors.

2. The pleading does not set out the factual basis upon which it is alleged the applicant has suffered a loss in relation to the alleged defective supply. If the applicant has not suffered a loss, there can be no cause of action.

3. The Tribunal has jurisdiction to hear and determine a consumer and trader dispute under s 184 of the Australian Consumer Law and Fair Trading Act 2012. Consumer and trader dispute is defined under s 182 to include a claim between a purchaser and supplier of goods. The contractual dispute in this proceeding is such a dispute and justiciable by the Tribunal under s 184.

4. The claim is not brought under s 217 of the Australian Consumer Law and Fair Trading Act 2012. No breach of the Australian Consumer Law or the Australian Consumer Law and Fair Trading Act 2012 is alleged. The limitation period under s 217 does not apply to the contract dispute.

5. The limitation period ... under s 5 of the Limitation of Actions Act 1958 has expired. The cause of action arose when the respondent allegedly breached the contract by delivering the allegedly out of specification windows in 2014. However, it has not been determined whether the limitation under s 134(1) of the Building Act 1993 applies to the contractual dispute.

6. The claim for $1,400 is sufficiently pleaded.

7. Although the respondent was not successful in having the proceeding struck out, the respondent has been put to the expense of litigating the applicant's deficient pleading. The respondent is entitled to costs of the application.

7 The Member rejected Hi-tech's strike out application and made the following interlocutory orders:

1. By 18 September 2023 the applicant must file and serve amended Points of Claim.

2. The applicant must pay the respondent's costs of the application fixed in the sum of $2,200.

3. By 25 September 2023 the registrar is directed to refer the file to Member Rowland in chambers to make further directions.

4. The respondent's application under sections 75 and 78 of the VCAT Act is otherwise dismissed.

8 Hi-tech seeks leave to appeal the first, second and fourth interlocutory orders.

9 The parties requested the Court to decide this proceeding on the papers and I do so in this judgment.

10 Hi-tech contends that the Member ought to have found that:

a. Maric's claim did not have an appropriate basis and should have been struck out pursuant to s 75 or s 78 of the VCAT Act; or in the alternative,

b. Maric's claim was beyond the time limitations prescribed by s 217(4) of the Australian Consumer Law and Fair Trading Act 2012 (Vic) and should have been struck out.

Question of law one and proposed ground of appeal one - applications under s 75 and s 78 of the VCAT Act

1. The Member ought not to have decided that the Respondent's application under s 75 or s 78 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) failed as her Findings in her Orders of 21 August 2023, at points 1& 2, state that the Applicant had not suffered loss or correctly pled a loss which should have been terminal at law to the claim, resulting in its being struck out.

12 The parties did not address whether Hi-tech's questions of law were valid questions of law for the purposes of s 148(1) of the VCAT Act. I will proceed on the assumption that they are.

13 Hi-tech's proposed ground of appeal associated with its first question of law is:

The Member did not correctly interpret the application of s 75 and s 78 of the VCAT Act as the Member reported[1] in the same orders that there was no basis for the claim in that no loss was pled with regard to the subject matter of the claim. In the transcript, it will be seen that the Member said that the claim was not capable of operation, however, instead of ordering the claim struck out as the Respondent's s 75 or s 78 claims would require, the Member both struck out the claim while ordering it continue which is not a permutation of the actual statute of s 75 or s 78 of the VCAT Act.

Legislation relevant to proposed ground of appeal one

14 Section 75 of the VCAT Act provides in relevant parts:

Summary dismissal of unjustified proceedings

(1) At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion -

(a) is frivolous, vexatious, misconceived or lacking in substance; or

(b) is otherwise an abuse of process.

(2) If the Tribunal makes an order under subsection (1), it may order the applicant to pay any other party an amount to compensate that party for any costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding.

(3) For the purposes of this Act, the question whether or not an application is frivolous, vexatious, misconceived or lacking in substance or is otherwise an abuse of process is a question of law.

15 Section 78 of the VCAT Act provides in relevant parts:

(2) This section applies if the Tribunal believes that a party to a proceeding is conducting the proceeding in a way that unnecessarily disadvantages another party to the proceeding by conduct such as -

...

(f) vexatiously conducting the proceeding;

(3) If this section applies, the Tribunal may -

(a) order that the proceeding be dismissed or struck out, if the party causing the disadvantage is the applicant; or

16 Hi-tech submitted that it has satisfied the requirements for the grant of leave to appeal. It argued that Maric's claim was pleaded incoherently, and this caused it prejudice in responding to it. The Member accepted that the pleading did not set out the factual basis upon which Maric alleged that it had suffered loss because of the supply of the allegedly defective windows. Without loss, Maric had no cause of action.

17 Hi-tech referred to the Member's statement that she was going to strike out the pleading with a right to replead. Hi-tech submitted that the Member had not correctly applied the law as the Tribunal did not have power under s 75 to both strike out a claim and simultaneously to permit a new claim be made on another basis entirely.

18 Hi-tech submitted that it had been prejudiced by the Tribunal not making striking out the proceeding and by granting Maric leave to re-plead.

19 Hi-tech also referred to Maric's amended points of claim filed on 18 September 2023, after the directions hearing on 21 August 2023, which did not contain a pleading of the amount of $1,400.00 claimed. Those amended points were, of course, not before the Member on 21 August 2023. Hi-tech contended that in the September particulars Maric stated that it was the cause of the original window rectifications not continuing in the following passage:

On 12 November 2021, the Applicant (Maric) sent the Respondent (Hi-tech) an email requesting the Respondent to hold off on rectifying Door 4 because the owner of the apartment had raised further concerns regarding Door 2.

20 Hi-tech also relied on the statement contained in Maric's September amended points of claim that:

The agreement between the parties was that the Respondent would manufacture and supply windows for the Building which were in accordance with the Documentation for a total sum of $55,313. [emphasis in Hi-tech's submission]

21 Hi-tech submitted that although Maric sought damages for breach of contract, its amended September particulars of claim concerned the original manufacture and delivery of the windows and not any contract for the repair of the defective windows. Maric's breach of contract claim concerned only the original manufacture and delivery of the windows.

22 Maric submitted that Hi-tech's application for leave to appeal had no real prospect of success and accordingly, leave to appeal should be refused or, if leave were granted, the appeal should be dismissed.

23 Maric disputed Hi-tech's submission that its claim did not properly plead a cause of action. It argued that Hi-tech had failed to establish that the Tribunal was required to summarily dismiss, or strike out, all or part of its proceeding. A 'high threshold' must be met before the Tribunal could exercise its power of summary dismissal under s 75. As the High Court stated in Fancourt v Mercantile Credits Pty Ltd:[2]

The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless there is no real question to be tried.

24 Maric contended that the Member did not strike out the entire claim but ordered amended points of claim be filed to address the concerns that she had raised. She exercised the Tribunal's amendment power under s 127. Maric argued that, while the Member expressed concerns about the way in which its claim for loss was pleaded, she found that the claim for $1,400.00 was sufficiently pleaded and that that part of the claim could continue. In any event, s 75 enabled the Tribunal to summarily dismiss or strike out 'all, or any part, of a proceeding', which included striking out pleadings while allowing the matter to proceed. The Tribunal did not find that Maric's claims unnecessarily disadvantaged Hi-tech so as to make s 78 applicable.

25 While Hi-tech's application was dismissed, Maric had to re-plead its claim and pay Hi-tech's costs of the application. Accordingly, Hi-tech was not unfairly prejudiced by the order, given that any prejudice was cured by the costs order made in its favour.

26 Maric submitted that its claim raised serious questions to be tried, which should be tested at a final hearing through the ordinary processes of calling or tendering evidence and making submissions. These questions included: what were the terms of the agreement between the parties? Did Hi-tech breach the terms of the agreement when supplying the windows to Maric? If so, what loss and damage did Maric suffer as a result of the breach, and how should such loss and damage be quantified?

Analysis of the first question of law and proposed ground of appeal one

27 At the outset, it is important to state that the Tribunal Member was being asked to exercise a discretion to strike out a proceeding. Hi-tech bears the onus of establishing that the Member erred in the exercise of the discretions conferred by s 75 and s 78 of the VCAT Act.

28 I am not satisfied that Maric's conduct could be described as conducting the proceeding in a way that unnecessarily disadvantaged Hi-tech by vexatiously conducting the proceeding within the meaning of s 78(1)(f) of the VCAT Act or otherwise. Therefore, the Tribunal did not err in refusing to exercise its discretion under s 78(2)(a) to dismiss or strike out the proceeding.

29 In reaching this conclusion, I have taken into account that the Tribunal is not a court of pleading,[3] and must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of the VCAT Act, the enabling enactment and a proper consideration of the matters before it permit.[4] Hi-tech has not been denied natural justice as Maric's claim is sufficiently expressed to enable it to respond.

30 A failure to particularise a claim does not of itself give foundation to a finding that the proceeding is frivolous, vexatious, misconceived or lacking in substance or is otherwise an abuse of process.[5]

31 The Member did take into account that, if Maric had not suffered a loss, there could be no cause of action. In that regard, she referred the parties to the New South Wales Court of Appeal decision in C & E Critharis Constructions Pty Ltd v Cubic Metre Pty Ltd.[6] She found that the points of claim did not set out the factual basis upon which Maric alleged that it suffered a loss from the supply of allegedly defective windows. Nevertheless, the Member did not conclude that Maric had no cause of action. Rather, she found that Maric had sufficiently pleaded a claim for $1,400.00, which was the cost of Hi-tech's attempt to repair the glazing in door 4 of unit 1 of the apartment complex. She rejected Hi-tech's argument based on lack of privity of contract and found that Maric was a party to the contract and entitled to bring its claim.

32 The Member described Maric's proceeding as 'a very complicated case' which she would not let go forward until it was properly pleaded.[7] At one point, the Member did state that she was going to strike out the pleading with a right to replead because the loss claimed had not been pleaded properly. However, at a later point, the Member decided not to strike the claim out altogether, but to permit Maric to reinstate it once it had provided its new amended points of claim and after Hi-tech had the opportunity to attack them. She gave Maric four weeks to deliver its amended points of claim and ordered that it pay Hi-tech's costs of the application fixed at $2,200.00.

33 The Tribunal's power to order the amendment of documents pursuant to s 127 of the VCAT Act applies to points of claim filed in a proceeding.[8] In Makrenos v Papaioannou[9] Kaye J observed that the Tribunal must contemplate, in deciding an application to amend an applicant's points of claim, whether the proposed amendments are 'so obviously bad in law that it would be futile to permit them to be included'.[10] His Honour also noted that an applicant was not required to frame the proposed amendments in accordance with 'rules of pleadings, nor with the precision or specificity required of pleadings'.[11]

34 The Member's orders followed the common practice in courts and tribunals of permitting a party to replead or restate their claim when they have not dealt with all the necessary elements of the cause of action but may be able to do so. The Member made no error in adopting that approach. I do not consider that the contents of Maric's September amended points of claim assist Hi-Tech's submission that the Member should have struck out the proceeding. Those points of claim were not before the Member and the fact that the details of claim alter during the interlocutory stages of a proceeding emphasises that it is often best to wait until the final hearing to decide legal issues raised by the parties.

35 I am satisfied that any prejudice incurred by Hi-tech by the Member permitting further amended points of claim was cured by the costs order made in its favour.

36 The proceeding appears to involve real questions to be tried regardless of deficiencies in Maric's initial or amended points of claim. Those questions concern the terms of the contract between the parties, whether it has been breached and what loss can be established as a result of any breach. In those circumstances, it would not have been appropriate for the Member to have granted Hi-tech summary judgment and struck out the proceeding under s 75 of the VCAT Act.

37 Hi-tech has not established that its proposed first ground of appeal, that the Tribunal erred in not dismissing Maric's application under s 75 or s 78 of the VCAT Act, has a real prospect of success as is required by s 148(2A) of the VCAT Act.[12] I do not consider that this ground justifies the grant of leave to appeal.

Question of law two and proposed ground of appeal two

The Member ought not to have decided that simultaneously s 184 of the Australian Consumer Law and Fair Trading Act 2012 (Vic) applied [point 3 of her Findings] and yet that s 217 of the same Act did not apply. As s 217 should apply, the claim is beyond statutory limitations and should have been struck out.

39 Hi-tech's proposed ground of appeal two associated with its second question of law states:

The Member was confused on the reading or interpretation of the Australian Consumer Law and Fair Trading Act 2012 (Vic) in that she ordered that s 184 of that Act applied while stating that s 217 did not apply which appears to be inaccurate on normal interpretation of the Act; and thus contrary to the Act.

Legislation relevant to proposed ground of appeal two

40 Section 182 of the Australian Consumer Law and Fair Trading Act 2012 ('ACLFTA') defines a consumer and trader dispute in terms that include:

(1) In this Chapter a consumer and trader dispute is a dispute or claim arising between a purchaser or possible purchaser of goods or services and a supplier or possible supplier of goods or services in relation to a supply or possible supply of goods or services.

(2) For the purposes of subsection (1), a dispute or claim includes any dispute or claim in negligence, nuisance or trespass that relates to the supply or possible supply of goods or services but (except as provided in subsection (3)) does not include a dispute or claim related to a personal injury.

41 Section 184 of the ACLFTA provides in relevant parts:

Settlement of consumer and trader disputes or small claims

(1) VCAT may hear and determine a consumer and trader dispute.

(2) VCAT may do one or more of the following in relation to a consumer and trader dispute -

(a) refer a dispute to a mediator appointed by VCAT;

(b) order the payment of a sum of money -

(i) found to be owing by one party to another party;

(ii) by way of damages (including exemplary damages and damages in the nature of interest);

(iii) by way of restitution;

(c) vary any term of a contract;

(d) declare that a term of a contract is, or is not, void;

(e) order the refund of any money paid under a contract or under a void contract;

(f) make an order in the nature of an order for specific performance of a contract;

(g) order rescission of a contract;

(h) order rectification of a contract;

(i) declare that a debt is, or is not, owing;

(j) make an order for the possession of land;

(k) order a party to do or refrain from doing something;

42 Section 217 of the ACLFTA provides:

(1) A person who suffers loss, injury or damage because of a contravention of a provision of this Act may recover the amount of the loss or damage or damages in respect of the injury by proceeding against any person who contravened the provision or was involved in the contravention.

(2) Except in accordance with section 182(3), a person may not recover in VCAT an amount for any personal injury suffered.

(3) A proceeding under this section may be brought before VCAT or in any court of competent jurisdiction.

(4) A proceeding under subsection (1) must not be commenced more than 6 years after the date on which the cause of action accrued. (emphasis added)

43 Hi-tech relied on s 40 of the VCAT Act, which provides that the Tribunal has both original and review jurisdictions. The enabling legislation required by s 42 to enliven the Tribunal's jurisdiction to hear a claim in the Civil Claims List for goods and services is contained in the ACLFTA, as VCAT has no power to hear matters arising under Commonwealth law.[13]

44 Hi-tech submitted that an applicant could not lodge an application under one provision of an enabling enactment and then seek to invoke the jurisdiction of the Tribunal under every section of that, or other, enactments.[14] The Tribunal has no common law jurisdiction, and could not acquire jurisdiction by consent of the parties even if that had been given in this case.

45 Hi-tech also submitted that Maric's claim was not commenced in time. The contract claim, as pleaded in the particulars of claim, was out of time.

46 Hi-tech submitted that the limitation periods contained in s 217 applied to the entire ACLFTA, save for personal injury claims, and applied to an application for damages for breach of contract made under s 184. Maric was claiming an award for damages. The Member erred in finding that s 184 applied, but s 217 did not.

47 Maric contended that its claim was not made under s 217(1) of the ACLFTA, as it did not allege that Hi-tech contravened any provision of that Act. Rather its claim was in contract. The dispute falls within s 184 of the ACLFTA because it is a 'consumer and trader dispute'.

48 A consumer and trader dispute under s 184 of the ACLFTA is not limited to claims for breach of that Act. As Richards J stated in in Weber v Carkeek:[15]

The grounds on which the Tribunal may make an order in relation to a consumer law dispute include, but are not confined to, breach of a provision of the ACL. They extend to common law and equity. This is not because the Tribunal has common law or equitable jurisdiction. It is because Parliament has given the Tribunal broad jurisdiction and powers in relation to consumer law disputes, which are to be exercised in accordance with the same legal principles that courts must apply.

...

The same reasoning applies to an order for the payment of money found to be owing, or an award of damages, under s 184(2)(b) of the Fair Trading Act. The Tribunal must apply the law, including, where relevant, the common law of contract, in determining whether to make such an order in relation to a consumer law dispute.

49 Her Honour expressed a similar opinion in Teen Entertainment Enterprise Network Pty Ltd v A&H Natoli Pty Ltd stating:[16]

The grounds on which the Tribunal may make an order under s 184 are diverse. They include contract, tort, and equity. They extend to breach of an applicable statutory provision, including provisions of the ACL.

50 Maric submitted that the Tribunal was correct in deciding that s 184 applied because its claim gave rise to a dispute about windows which were manufactured and supplied by Hi-tech. Maric's claim was not made under the ACLFTA and therefore the limitation period in s 217 did not apply. Nor did s 5(1)(a) of the Limitation of Actions Act 1958, which contains a six-year limitation period for contract claims.

51 Maric in its written submissions to the Tribunal contended that Hi-tech's supply of windows to it was 'building work' under the DBCA. Its claim was a 'building action' to which the 10-year limitation under s 134(1) of the DBCA applied. The occupancy permit was issued on 6 March 2015, so the 10-year limitation period has not expired, and Maric's claim was made within time. At the directions hearing, the Member referred the parties to the Tribunal's decision in Willoughby v Renma Screen & Blinds Pty Ltd,[17] which held that the construction and supply of windows was not domestic building work under s 5 of the Domestic Building Contracts Act 1995 ('DBCA'). This was because the construction of windows offsite and their delivery to, but not installation in, a home, was a contract to construct and supply the windows and not a contract for the construction of a home. In 2010, at the time of the supply of the windows in that case, the DCBA and regulation 6 of the Domestic Building Contract Regulations excluded from the DCBA work that was carried out under a contract in relation to one only of specified types of work, including glazing.[18]

52 Maric then ceased to rely on the DBCA and did not pursue that submission at the oral hearing. It relied on a claim of breach of contract which came within the Tribunal's jurisdiction under s 184 of the ACLFTA. It argued that some windows delivered did not meet the agreed specifications and that Hi-tech had thereby breached the contract and must compensate Maric.

53 However, Maric submitted that the Tribunal correctly decided not to determine at the strike-out hearing the question of whether a limitation period applied. This was in accordance with the statement of Mason CJ, Dawson, Gaudron and McHugh JJ in Wardley Australia Ltd v Western Australia.[19]

54 Maric submitted that this was not 'the clearest of cases'. The Member observed during the directions hearing:[20]

MEMBER: I think that part has expired. But whether you can make a claim in contract and rely not on that limitation period but the Building Act limitation period, probably remains open. I don't know. I'd have to see what you're pleading or whether the Building Act limitation period applied.

MARIC'S COUNSEL : Yes. Thank you.

MEMBER: I don't know. I haven't looked into it.

MARIC'S COUNSEL: No, I understand.

MEMBER: There are lots of difficulties with this case. As I say, I think it is a very complicated case because you've got the issues about loss and I've referred you to that Critharis decision and you need to deal with that.

MEMBER: Now, bearing in mind what you said here, is that the respondent is going to be taking a limitation period.

MARIC'S COUNSEL: Yes.

MEMBER: You need to set out why the limitation period - you need to set out the facts which say how it doesn't apply. I don't think and I don't consider - and I'll have to look this up and give you some authority for this. But the way I read - just to answer a few of the other points. The Tribunal has jurisdiction to hear this case under 182 and 184. It's not under s 217.

The limitation period under s 217 doesn't apply to the facts of this case because you're bringing out a contract case against the respondent. You're not relying on a breach of the Australian Consumer Law and the Australian Consumer Law and Fair Trading Act.

MARIC'S COUNSEL: Yes.

Analysis of the second question of law and the second proposed ground of appeal

55 The Member correctly decided that the Tribunal had the jurisdiction to hear the case under ss 182 and 184 of the ACLFTA because it was a claim in contract in a consumer-trader dispute. Hi-tech was the trader and Maric was the consumer in the dispute regarding the windows which Hi-tech manufactured and supplied. Richards J's judgments supported that conclusion that the Tribunal possessed jurisdiction. Therefore, the limitation period contained in s 217 did not apply as Maric was not alleging that Hi-tech had contravened a provision of the ACLFTA. The Member considered that the contractual limitation period under the Limitation of Actions Act had expired because the six year limitation period commenced to run when the windows were delivered. However, the Member observed:[21]

But whether you can make a claim in contract and rely not on that limitation period but the Building Act limitation period, probably remains open. I don't know. I'd have to see what you're pleading or whether the Building Act limitation period applied.

...

There are lots of difficulties with this case. As I say, I think it is a very complicated case because you've got the issues about loss and I've referred you to that Critharis decision and you need to deal with that.

56 The Member was correct not to determine whether the proceeding had been commenced after the limitation period had expired. She acted in accordance with the High Court's approach in Wardley Australia Ltd v Western Australia:[22]

We should, however, state in the plainest of terms that we regard it as undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases. Generally speaking, in such proceedings, insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify a confident answer to the question.

57 The High Court's approach in Wardley applies to summary judgment applications made under s 75 of the VCAT Act, whether the limitation provision relied on is contained in the Limitation of Actions Act or the ACLFTA. [23]

58 This was not the 'clearest of cases' that justified the limitation question being decided before the end of the Tribunal hearing. Hi-tech's arguments regarding limitation periods were best addressed at the final hearing, after evidence regarding Maric's loss had been provided to the Tribunal.

59 To understand the context in which the Member made her decision not to strike out Maric's claim on the basis of a limitation defence, the following points need to be noted. First, as I have mentioned, is the Wardley approach described above that limitation defences should only be decided in interlocutory proceedings in the clearest of cases. In my opinion, that approach applied to Hi-tech's applications. Secondly, Hi-tech relied on the limitation period contained in s 217 of the ACLFTA which, contrary to Hi-tech's submission, was not applicable because Maric was not alleging a contravention of a provision of that Act. Thirdly, as Maric's claim was made under the Tribunal's jurisdiction under s 184 of the ACLFTA, a possible limitation defence to a claim in contract under s 5(1) of the Limitation of Actions Act might have been available. However, at the directions hearing, Hi-tech made it clear that it was not relying on s 5(1), but on the limitation period in s 217 of the ACLFTA. Its lawyer stated at the directions hearing that Hi-tech had 'narrowed' and was not pleading, and was no longer 'agitating', that the limitation contained in the Limitation of Actions Act 'applies anymore'.[24] It is therefore unnecessary to consider the question which might have otherwise arisen, whether a consumer and trader dispute, which arises from a contract claim, is to be characterised as a statutory claim under s 184 and therefore as not subject to the limitation period in s 5(1), rather than a claim in contract to which s 5(1) does apply.[25] Fourthly, Maric's case was that the limitation period did not commence to run until it became aware of the defect in the glazing, rather than when the goods were delivered. However, Maric's approach was not correct, as the limitation period commenced when the contract was breached,[26] which, on Maric's case, appears to have been when the windows were delivered. Fifthly, neither party made submissions about the Tribunal decision in Willoughby v Renma Screens & Blinds Pty Ltd,[27] to which the Member referred them_,_ and its consideration of the availability of the 10 year limitation period contained in s 134 of the Building Act 1993.

60 In the context of the uncertainty about the applicable limitation provision that prevailed at the directions hearing, the Member adopted the sensible approach of giving Maric the opportunity to deliver amended points of claim to clarify what loss it had suffered and why it said that particular limitation periods did not apply. The Member did not err in the exercise of discretion in taking the course that she did.

61 I have also taken into account that, while applications can be made for leave to appeal interlocutory orders, such applications should be approached with caution, when the whole of the respondent's case may not be before the Tribunal. Such applications can fragment proceedings and add to their length and cost.[28]

62 In my opinion, Hi-tech has not established that its proposed second ground of appeal has a real prospect of success as required by s 148(2A) of the VCAT Act. Leave to appeal on the proposed second ground of appeal is refused.

63 For the above reasons, Hi-tech has not established that its proposed appeal has a real prospect of success. Hi-tech's application for leave to appeal the interlocutory orders of 23 August 2023 is therefore dismissed.

64 Costs usually follow the event, which in this case would require Hi-tech to pay Maric's costs of this proceeding on a standard basis. However, I will give directions for the parties to file submissions about costs, if they wish.

[1] 'Reported' may be intended as 'recorded'.

[2] (1983) 154 CLR 87, 99; Towie v Victoria [2008] VSC 177; (2008) 19 VR 640, [30].

[3] Barbon v West Homes Australia Pty Ltd [2001] VSC 405 at [16]- [17].

[5] Worldwide Enterprises Pty Ltd v Westpac Corporation [2010] VCAT 1125, [11].

[6] [2020] NSWCA 348.

[7] Transcript of Proceedings, Maric Developments Pty Ltd v Hi-tech Aluminium Windows Pty Ltd t/a Windows By Design (Victorian Civil and Administrative Tribunal, Member Rowland, 21 August 2023), 31 ('T').

[8] Construction Engineering (Aust) Pty Ltd v Victorian Managed Insurance Authority [2007] VCAT 875 at [6].

[9] [2008] VSC 83.

[12] See Kennedy v Shire of Campaspe [2015] VSCA 47 at [12] and Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 25 at [29].

[13] Thurin v Krongold Constructions (Aust) Pty Ltd (2022) 407 ALR 187; [2022] VSCA 226.

[14] Ingram v McLennan & Assoc Pty Ltd [2014] VCAT 133.

[15] [2020] VSC 366 [116], [118].

[16] [2020] VSC 388, [32].

[17] [2023] VCAT 303.

[19] [1992] HCA 55; (1992) 175 CLR 514 at 533.

[22] [1992] HCA 55; (1992) 175 CLR 514 at 533 (Mason CJ, Dawson, Gaudron and McHugh JJ) ('Wardley').

[23] Baker v Culvenor [2019] VSC 224 [32].

[25] Steedman v Greater Western Water Corporation [2023] VCAT 128, considering the Water Act 1989.

[26] See eg Gibbs v Guild [1881] UKLawRpKQB 183; (1881) 8 QBD 296, 302.

[27] [2023] VCAT 303.

[28] Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 at [14].