Victorian Civil and Administrative Tribunal|2023-10-06

For the reasons given above, the Owner is not entitled to the sum of $52,705.59 as claimed for the cost of removing and replacing the whole of Strictly Cabinets' work.
However, I will order that Strictly Cabinets repay the Owner the deposit for the work on the ensuite bathroom in the sum of $406.31.

Issue 3 - Owner's claim for expenses incurred due to the absence of a kitchen for over 12 months

The Owner claims $2,800.00 for expenses because of the absence of a kitchen for over 12 months, calculated by reference to additional food costs.

Issue 4 - Owner's claim for reimbursement of VCAT application fee

The Owner claims reimbursement of $494.50, being her application fee paid to VCAT.
This head of claim is not available by way of compensation. However, under ss 115B and 115C of the VCAT Act, I may order a respondent to reimburse an applicant for the amount of the application fee if I find that the applicant 'substantially succeeded' in their claim.
Given the above findings, patently, the Owner has not been substantially successful in this proceeding, and so I make no such order.

Issue 7 - Owner's claim for 2 days lost income

As a self-represented litigant, the Owner is not entitled to recover the costs for her own time in preparing for the hearing or otherwise.[78]
Accordingly, the Owners' claim to be compensated for 2 days' lost income when appearing before the Tribunal on 12 July 2022 and 27 October 2022 fails.

Because the Contract 'is of no effect', Strictly Cabinets has lost any entitlement to be paid the balance of the aggregate contract price, in the sum of $9,500.31.[79] Accordingly, the counterclaim is dismissed.

Given that the Owner has been substantially unsuccessful in pursuing her claims against Strictly Cabinets, and Strictly Cabinets has been wholly unsuccessful in pursuing its counterclaim, my preliminary view is that each party should bear their own costs of this proceeding in accordance with s 109(1) of the VCAT Act.
However, in my orders, I will allow the parties time to apply for an order for costs in their favour, including an explanation why the usual presumption that each party should bear their own costs (s 109(1)) should not apply here.

[1] Arithmetically, the correct amount is $32,412.71.

[2] Arithmetically, the correct total is $52,704.59.

[4] Seachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd & Ors [2008] VCAT 1479, [35] (Acting President Judge Ross).

[5] Tomasevic v Travaglini & Anor (2007) 17 VR 100; [2007] VSC 337, [141] (Bell J).

[7] Teen Entertainment Enterprise Network Pty Ltd v A&H Natoli Pty Ltd [2020] VSC 388, [41] (Richards J).

[8] Christ Church Grammar School v Bosnich & Anor [2010] VSC 476, [40] (Sifris J).

[10] Exhibits to the Volta Statement, pp 3-6.

[13] Volta Statement, [12], and exhibits, NVE 83.

[15] Volta statement [17]; and exhibits to the Volta Statement, NVE 9-15.

[16] Exhibits to the Volta Statement, NVE 93.

[20] Exhibits to the Volta Statement, NVE 98.

[21] Exhibits to the Volta Statement, NVE 32.

[23] POC, [12]. I have not seen the email by which this request was made.

[25] Exhibits to the Volta Statement, NVE 40.

[27] Exhibits to the Volta Statement, NVE 100.

[30] Exhibits to the Volta Statement, NVE 103.

[33] Exhibits to the Volta Statement, NVE 102.

[34] Using the term 'without prejudice' in a document will usually be evidence of an intention that the document is privileged, but use of that term is neither necessary nor determinative: Barrett Property Group Pty Ltd v Dennis Family Homes Pty Ltd (No 2) (2011) 193 FCR 479; [2011] FCA 276, [39] (Bromberg J); Rodgers v Rodgers [1964] HCA 25; (1964) 114 CLR 608, [7].

[35] Exhibits to the Volta Statement, NVE 106-108.

[38] POC, attachments, 93-94. The table also referred to contact between the Owner and Domestic Building Dispute Resolution Victoria.

[41] POC, attachments, 90-92. See also POC, [5].

[42] DBC Act, s 3 'major domestic building contract' as modified by operation of Domestic Building Contracts Regulations 2017 (DBC Regs), r 6.

[45] See, by analogy, BSA Advanced Property Solutions (Fire) Pty Ltd v Ventia Australia Pty Ltd [2022] NSWCA 82 ('BSA Advanced'), [80] (The Court).

[48] Drossos, [35]-[36]. See also, Bagust v Wilson (Domestic Building) [2010] VCAT 1315, [19]-[20] (Riegler SM, as he then was).

[49] Pavey & Matthews Pty Ltd v Paul [1987] HCA 5; (1987) 162 CLR 221 ('Pavey'). See also Drossos, [35].

[50] David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; (1992) 175 CLR 353 (David Securities), 379, cited in Marshall v Marshall [1999] 1 Qd R 173 at 178 (McPherson J).

[54] Pavey, 229 (Mason and Wilson JJ).

[55] Pavey, 228 (Mason and Wilson JJ).

[56] Mann v Paterson Constructions Pty Ltd; (2019) 267 CLR 560; [2019] HCA 32 [204] (Nettle, Gordon and Edelman JJ).

[57] Benedetti v Sawiris [2013] UKSC 50, [14] (Clarke LJ) and [139] (Reed LJ).

[58] Julian Bailey, Construction Law (3rd edition, LPP) (Bailey), [6.213].

[61] POC, [19], particulars. The report is included at POC, attachments, 67-80.

[64] Exhibits to the Volta Statement, p NVE 4.

[66] Exhibits to the Volta Statement, NVE 9-12.

[68] Photograph of the original butler's pantry produced by Ms Volta in evidence.

[70] Exhibits to the Volta Statement, p NVE 4.

[78] Ganesh v National Australia Bank Limited [2021] VSCA 45, [85] following Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403, 410.

[79] Fotopoulos v Landmark Building Design Pty Ltd (Building and Property) [2020] VCAT 1130, [34] (Nash M).

Civil and Administrative Tribunal Act 1998

Building Contracts Act 1995

Building Contracts Regulations 2017

Crowe v Strictly Cabinets Pty Ltd (Building and Property) [2023] VCAT 1141 (6 October 2023)

Crowe v Strictly Cabinets Pty Ltd

At a glance

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Decision date

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Judgment (49 paragraphs)

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Legislation Cited (3)

Cases Cited (8)

Crowe v Strictly Cabinets Pty Ltd (Building and Property) [2023] VCAT 1141 (6 October 2023)