Ausecon Developments Pty Ltd v Kamil [2015] VCAT 1474 | Case summary

The application for an order under section 75 of the VCAT Act relied on the matters already outlined above. On the material before me, I consider that there is no basis upon which I could properly conclude that the VCAT proceeding is frivolous, vexatious, misconceived or lacking in substance. It appears to be common ground that a house, in which Mr Kamil now resides, was built on Lot 397 for Mr Kamil by Ausecon, pursuant at the very least to an agreement between Mr Kamil and Ausecon. Leaving aside whether the agreement was in the nature of a costs plus contract or a major domestic building contract, the dispute centres around whether or not the builder has been paid in full for the works performed on that construction. The builder says that he has not; Mr Kamil appears to be arguing that, if one has regard to the complex investment relationship between the parties, the builder has been compensated for the construction work on Lot 397. There is a genuine issue in dispute, which is sought to be tried. The Points of Defence relied upon by Mr Kamil are not a complete defence such as to warrant a finding, without hearing evidence, that the claim by Ausecon is lacking in substance.
I therefore dismiss the application insofar as it seeks orders under section 75 of the VCAT Act.
In relation to the application for orders under section 77 of the VCAT Act, I consider it appropriate to dismiss the application for the following reasons:
First, on the limited facts before me, the dispute between Ausecon and Mr Kamil is a quintessential domestic building dispute, for which the VCAT is undoubtedly the first port of call.
Second, the VCAT proceeding is well advanced. The matter is listed for a 5-8 day hearing to commence on 12 October 2015. Ausecon has retained the services of an expert surveyor, and filed his report with the VCAT.
Third, the matters raised by Mr Kamil in his Points of Defence, that is, the set off claimed by virtue of the complex investment agreements between Ausecon/Mr Abdullah and OS Developments/Mr Kamil, are matters which fall within the definition of a consumer and trader dispute pursuant to section 182 of the ACL, and the VCAT therefore has jurisdiction to determine these matters under sections 184 and 224 of the ACL.

Ausecon Developments Pty Ltd v Kamil

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Judgment (13 paragraphs)

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Cases Cited (1)

Ausecon Developments Pty Ltd v Kamil (Building and Property) [2015] VCAT 1474 (16 September 2015)