Victorian Civil and Administrative Tribunal|2003-05-28|Before: Mr J

Curcio v HGF & SPV Homes Pty Ltd [2003] VCAT 1041 (28 May 2003)

Domestic Building List; Application to Re-open Determination; Section 120 Victorian Civil and Administrative Tribunal Act 1998

2. The second respondent must pay the costs of this day of the applicant and the first respondent to be taxed in default of agreement in accordance with County Court Scale "A".

For Second Respondent: Mr Victor Kiriakidis in person

1. This proceeding was commenced on the 25th of September 2002. Mr Curcio has made claims against Housing Guarantee Fund Ltd as the administrator of the HIH Indemnity Fund and the builder, SPV Homes Pty Ltd. The matter was referred to mediation which was unsuccessful and the mediator, Ms Falduti, directed that it be listed for a small claim hearing. That listing was effected on the 17th of April 2003 and the matter came on for hearing before me.

2. On the 17th Mr Curcio was represented by his solicitor Mr Pastro; Housing Guarantee Fund Limited was represented by Mr Powell of Counsel and there was no appearance for SPV.

3. The Tribunal records indicate that a notice of the hearing on the 17th of April was forwarded by ordinary post to SPV on 6th March. The matter proceeded to a hearing and I ordered that Housing Guarantee Fund Limited's determination as insurer with regard to some three items be annulled and that it pay the applicant, Mr Curcio, the sum of $7,850. I also directed the fund to pay Mr Curcio's costs taxed in accordance with County Court Scale "A". It will be noted that I made no orders against the second respondent SPV Homes Pty Ltd which as previously noted was not present at the hearing.

4. Now I have before me an application under Section 120 of the Victorian Civil and Administrative Tribunal Act 1998 whereby SPV seeks to have the orders which I made on the 17th of April reopened. It says that it did not receive notice of the hearing and has thereby been deprived of natural justice. The Secretary of SPV, Mrs Jordano Kiriakidis has made an affidavit sworn on the 27th of May 2003. She says that she attended the Mill Park Post Office and signed the register on 28th April 2003 and collected a registered mail envelope No. RL290808810 addressed to her husband from Housing Guarantee Fund Limited, the first respondent. Included in the package of materials from Housing Guarantee Fund was a copy of the order which I made on the 17th. Mrs Kiriakidis says this was the first that she knew of the hearing or the determination and as a result her company instructed solicitors Novatsis and Alexander to make an application pursuant to Section 120 of the Victorian Civil and Administrative Tribunal Act 1998 to have the order set aside. She says that she has made enquiry of her husband and her two adult sons both of whom say that they did not receive notice of the hearing.

5. Before further consideration of the merits of the application I should say something as to my jurisdiction to make the orders sought. Section 120(1) of the Victorian Civil and Administrative Tribunal Act states:

"A person in respect of whom an order is made may apply to the Tribunal for a review of the order if the person did not appear and was not represented at the hearing at which the order was made."

(a) hear and determine the application if it is satisfied that the applicant had a reasonable excuse for not attending or being represented; and

(b) if it thinks fit, order that the order be revoked or varied."

7. The first question is whether SPV in the circumstances has standing to make an application under Section 120. As my narration of facts has indicated, no order was made against SPV on the 17th of April. Presumably what has led SPV to make this application has been the demand of the first respondent, Housing Guarantee Fund Limited which will be seeking indemnity from it. Be that as it may, no order was made in the Tribunal on the 17th of April against SPV. Is that a conclusive answer to this application? My mind has fluctuated on the point. In the end however, I believe it is not a complete answer.

8. The person who is entitled to make an application under Section 120 is "a person in respect of whom an order is made". Had Parliament meant a person against whom an order was made, no doubt it could have said so. It has chosen the phrase "in respect of" which is generally regarded as being the widest possible phrase to denote a connection between two subject matters. The authorities on this point are numerous; the best known is a decision of Mann CJ in Trustees, Executors and Agency Company Limited v Reilly [1941] VicLawRp 22; [1941] VLR 110, 111. SPV certainly is connected with the orders that were made on the 17th of April in two ways. First, it is a party to the proceeding in which they were made and secondly, as I have already explained, it is a party against whom indemnity is likely and indeed has been sought. In those circumstances I believe SPV does have standing to apply under Section 120.

9. A reopening was opposed by the other two parties, namely Mr Curcio who is represented by his solicitor Mr Pastro and Housing Guarantee Fund Limited, represented by Mr Powell of Counsel. Mr Pastro generally supported the submissions made by Mr Powell. He referred to the authorities relative to Rule 49.02 of the Rules of the Supreme Court dealing with similar issues to Section 120 of our statutes. These cases he submitted, indicate that an applicant for re-opening is required to show not only a reasonable excuse for his, her or its absence from the relevant hearing but also to show that there was a good defence on the merits available to it. As it is Mrs Kiriakidis' affidavit does not say anything in any detail or substance as to the merits of any case which her company might desire to put Whilst I do not have an independent recollection of the matters that were argued at the hearing before me, Mr Pastro says that there were two issues, stormwater drainage and pillars. With respect to both matters I reached determinations in favour of Mr Curcio.

10. Mr Powell says that Housing Guarantee Fund Limited had accepted liability with regard to the stormwater drain and the contest was purely as to quantum. It would not be competent now having regard to the expiry of the relevant deadline for SPV to challenge the issue of liability relative to the stormwater.

11. As to the pillars, Mr Pastro says that I determined that issue in favour of Mr Curcio by rejecting an argument based on res judicata or issue estoppel arising out of a compromise of earlier proceedings. Mr Powell says in those circumstances there was no reason to think that I would reach any different conclusion or that any other member of the Tribunal would reach a different conclusion were that issue reopened. Section 120 gives a discretion to reopen and Section 45 of the Interpretation of Legislation Act 1984 means that a power introduced by the word "may" is one that can be exercised or not in discretion. I take Mr Powell's submission to be that even if the other matters required by Section 120 were established as a matter of discretion I should not permit a reopening because there was little or no prospect that a re-hearing would reach any different conclusion to the earlier one.

12. I felt it inappropriate to regard the proofs offered by SPV as inadequate in failing to go to the merits because the notice issued by the Tribunal could well lead SPV or indeed its solicitors to the view that the issue of merits would not be considered today at all. In the circumstances I felt that I should do no more than seek an indication in the most general terms from Mr Kiriakidis who rather than Novatsis and Alexander represents SPV today. He said that his company desired to re-open the issue of the stormwater drain, not only as to quantum but also as to liability. He did not give any clear explanation as to what his company's case would be with regard to the pillars.

13. Having said so much I believe I should now return to the initial and primary question, namely whether it is demonstrated that to use the words of Section 120(4) of the statute, the applicant had a reasonable excuse for not attending and not being represented at the hearing.

14. Mrs Kiriakidis was not cross-examined and so to the extent that I sought clarification of the terms of her affidavit it had to be by questions addressed to Mr Kiriakidis at the bar table. He says that not only did SPV not receive the notice of hearing apparently posted on the 6th of March but also it did not receive from the Tribunal, as distinct from Housing Guarantee Fund Limited, a copy of the orders that were made on the 17th of March. Again, the Tribunal's records indicate that such a letter was sent. Mr Kiriakidis said there were no particular difficulties with the post at the address to which these notices were sent, namely 87 Blossom Park Drive, Mill Park. Other material in the file indicates that that is the company's proper address and that is the address which Mrs Kiriakidis gives in her affidavit.

15. Certain it is that there are instances when things go astray. In discussions with one of my colleagues earlier today, he described a recent experience where he was about to proceed in the absence of a party who according to the Tribunal's records had received notice of the hearing when the solicitor for the party that was represented asked that that course not be followed. The reason she did that was because she realised that the notice which should have gone to her opponent had been stapled to the notice addressed to her client. So both notices had gone to her or her client but not to her opponent. Accordingly, even although I think a judge in a court in Victoria would be entitled to take judicial notice of the fact that the mails in Australia are generally reliable and therefore sitting on a Tribunal I can do likewise with the more ample power that I have to inform myself as I seek fit, the mails are not infallible and things can and do go wrong.

16. If matters went no further than this I believe the proper course for me would be simply to accept Mrs Kiriakidis' affidavit and despite the misgivings that I have as to the substance of the case that SPV might be able to make, grant this application.

17. However matters do go further. In SPV's case. Not only did one notice not arrive, a second notice, namely the one covering the orders of the Tribunal. It is frankly difficult to credit and leaves one with the beginnings of some scepticism. There was also the fact that the notice from Housing Guarantee Fund Limited was despatched by registered mail. However, Mr Powell did not assert that that expensive and inconvenient course was adopted for any particular reason of difficulty in receipt of mail in the past.

18. Mr Pastro however called Mrs Curcio to give evidence and she produced a letter from solicitors, Mahons, then acting for Mr Kiriakidis senior and SPV Homes Pty Ltd dated the 10th of October 2000. Paragraph 13 of that letter says "on 4th of October 2000 our client was served with an order made on the 3rd of October in our client's absence. Our client never received a copy of that application."

19. I was then given a copy of the summons for directions which was issued on the 20th of September 2000 together with a delivery confirmation advice receipt. The document is signed by J. Kiriakidis, whom I take to be Mrs Kiriakidis. I invited Mr Kiriakidis to ask Mrs Curcio any questions he might care to put. I gave him the opportunity of a stand-down to confer with his mother; but he indicated that he had nothing which he desired to add.

20. Putting all these things together, lightning does strike sometimes as my colleagues experience which I have just described indicates. It is highly unlikely that it would strike twice, so close together in March and April; and when I put that together with the material relative to the earlier proceedings between the same parties I am forced to the conclusion that it is more probable than not that these communications, both of them, did in fact reach SPV. If SPV and its officers did not acquaint itself and themselves with the contents of those documents, it was not because they did not arrive. Hence I do not accept that there is a reasonable excuse for non-attendance and this application fails.

Civil and Administrative Tribunal Act 1998

Legislation Act 1984

Curcio v HGF & SPV Homes Pty Ltd [2003] VCAT 1041

At a glance

Court

Decision date

Before

Source

Judgment (27 paragraphs)

Curcio v HGF & SPV Homes Pty Ltd [2003] VCAT 1041 (28 May 2003)

Parties

Legislation Cited (2)