Carlos Constructions Pty Ltd v Housing Guarantee Fund Ltd [2002] VSC 444

8. Chapter 2 Order 4 of the Rules of the Supreme Court contains the procedure for making application for leave to appeal from a tribunal, including VCAT. Rule 4.08(1) requires an applicant to file a summons within seven days seeking the relief sought in the originating motion, that is to say, leave to appeal. Sub-rule 2 says: "The application is taken to be made when the summons is filed."

11. The combination of s.148(2)(b) and those Rules would seem to lead to the conclusion that, although contained in the Rules, the requirement that the application be taken to be made when the summons is filed is probably statutory.

14. However, notwithstanding all of that, s.148(5) permits this Court to extend or abridge any time limit fixed by or under this section. It does so without reference to criteria, but it would be assumed that it implies that such an extension or abridgment would be granted when it is in accordance with the justice of the case to do so.

17. This case involves a claim by a builder against the Housing Guarantee Fund Ltd in respect of a decision that that Fund made to indemnify the builder in respect of work which was required to be done on a property upon which the builder had originally worked. Payment by the Fund gives the Fund total recourse to the builder for the amount paid. The argument centres around whether the owner of the building, the second respondent to this application, in fact notified the Fund within time or not. The builder complains that she did not. The Fund decided that she had. Of particular significance is the fact that the Fund made its decision and notified that decision to the builder but he took no steps in relation to that decision so that the Fund made the statutory payment to the second respondent, the claimant. It paid a sum of something just over $4,000, either to her or on her behalf to other contractors.

20. This case then commenced with a series of affidavits - (which, with respect to whoever drew them, seemed to be designed to confuse rather than to enlighten) - to depose to facts which were never really in dispute. The situation that ultimately this Court now faces is that an application has been made for relief under s.148(5) in respect of a claim which, at its best, is something just over $4,000. If such relief is given, an application for leave to appeal would then be made. If leave was granted an appeal would be heard; and all of that, if in fact a question of law can be distilled out of the allegations made by the applicant.

23. Having regard to the proposed notice of appeal which the applicant puts before this Court, I am not satisfied that a question of law would necessarily be raised by any appeal. The proposed appellant seems to be complaining about wrong factual decisions made by the Fund and then the Tribunal. Mr Nixon says that a statement to the effect that the Tribunal failed to exercise its discretion properly raises a question of law. Well it might, if in fact that allegation were particularised in a way which raised questions of law. Mere allegations of failure to exercise a discretion properly may or may not raise a question of law, depending upon the facts.

26. However that may be, the question that now confronts me is whether I ought to grant the leave necessary under s.148(5) to extend the time for making application for leave to appeal, and then whether leave to appeal ought to be granted. Having regard to the material that was before the Tribunal, namely, that set out in Exhibit CG12, its decision is not attended by sufficient doubt to justify its being ventilated on an application in this Court. In all probability, the Tribunal was correct in refusing leave to extend the time within which an application could be made. In any event, the refusal of leave in this case subjects the proposed appellant to no substantial injustice on the merits. It seems to me that a merits review of this decision would almost certainly have resulted in the applicant being refused that relief. Accordingly, there is nothing to be gained at this point by granting him the indulgence he seeks under s. 148(5).

29. The application, accordingly, to extend time to bring this application for leave to appeal is refused.

I order that the applicant pay the Housing Guarantee Fund Ltd's costs to be taxed.

I order that the applicant pay the respondent Prudence Ellen Wales's costs to be taxed, including costs reserved.

I certify that this and the 2 preceding pages are a true copy of the reasons for Judgment of Bongiorno J of the Supreme Court of Victoria delivered on 9 October 2002.