3 The following references to factual matters are made solely for the purposes of the applications before me and do not in any way represent findings of fact on the merits. They are not intended to have any binding effect upon the principal application, and are included only so as to make these rulings more understandable and place them in context. This qualification does not apply to such matters as the dates upon which events in the chain of litigation occurred.
4 This dispute concerns the construction of a dwelling on land at 1215 Malvern Road, Malvern. It is alleged by Houndalas that he entered into a building agreement with Burnham pursuant to which Burnham agreed to construct the dwelling. There were terms of the agreement concerning the times at which various steps would be taken, the manner in which the construction works would be carried out and the like. Alternatively, it is alleged that Houndalas and Burnham entered into a project management agreement pursuant to which Burnham would act as project manager of the construction of the dwelling. Again, there were terms relating to the total construction cost, a completion date of the project, the care and skill to be taken and the like. In relation to the building agreement, it is alleged that Burnham breached several of the terms and, in December 2003, effectively ceased work and abandoned the site. By so doing, Burnham repudiated the building agreement, which repudiation was accepted by Houndalas. A further and alternative claim is made against Burnham in negligence. It is also alleged that Burnham made to Houndalas a number of representations which were false and misleading and in contravention of the Fair Trading Act 1999.
5 In relation to the project management agreement, it is alleged that Burnham breached various terms of it, and effectively failed to finish the project in reasonable time with due diligence, or at all. A further and alternative claim based in negligence is also made. Houndalas seeks damages.
6 The history of the litigation before this Tribunal could be summarised briefly as follows. On approximately 8th March 2005, Houndalas issued an application out of this Tribunal. Annexed to such application were Points of Claim, which, in essence, set out the matters referred to above. However, paragraphs 40, 42, 48, 50 and 56 made reference to and placed reliance upon the Trade Practices Act 1974, which is, of course, a Commonwealth Act.
7 On 21st April 2005, a directions hearing was conducted by Deputy President Aird. A timetable was set in place, including orders that Houndalas file and serve itemised particulars of loss and damage by 6th May 2005 and that Burnham, who at this stage does not appear to have had legal representation, file and serve Points of Defence by 20th May 2005.
8 On 13th May 2005, Houndalas filed and served Particulars of Loss and Damage. These were comparatively brief, consisting, in essence, of an amount for the total cost of construction plus interest, less either the total amount allowed in the project management agreement, or, alternatively, in the building agreement. Thus, Houndalas claimed damages of either $454,272.57 or $369,272.57. The details of the total cost of the construction, which was put at $719,272.57, are, on their face, extremely brief.
9 On 17th June 2005, a further directions hearing was conducted by Senior Member Walker. A new timetable was arranged, and this included orders that Houndalas by 15th July 2005 provide further particulars of the loss and damage claim, setting out how the figure specified for building costs was made up. It also included an order that Burnham file and serve Points of Defence by 12th August 2005.
10 On 18th July 2005, Houndalas filed and served Further Particulars of Loss and Damage. These further particulars were constituted by a detailed list of expenses. The list includes expenses from "Con's diary" and from "NAB chequebook". As I pointed out from the bench, some of the items listed do not strike me as being construction costs that would have been lost as a result of the change of builders. An example of this is the item "pre-building costs", which include such matters as architects' fees.
11 In any event, Burnham was dissatisfied with this method of providing Further Particulars of Loss and Damage, and wrote to the Senior Registrar of this Tribunal complaining of the "grossly inadequate" nature of particulars being supplied in this fashion.
12 A further directions hearing was conducted by Senior Member Cremean on 3rd August 2005. It is noted that Burnham failed to attend and a modest costs order was made against him. The orders of 17th June 2005 were confirmed and the directions hearing adjourned to the date of the compulsory conference, which had previously been set for 21st October 2005.
13 On 18th August 2005, Houndalas' solicitors wrote to the Registrar of this Tribunal pointing out that Burnham failed to file and serve his Points of Defence within the time ordered, and foreshadowing an application for judgment in default of defence.
14 A further directions hearing was conducted on 4th October 2005 before Member Walsh. The date of the compulsory conference was vacated, and it was refixed on 16th December 2005. Member Walsh ordered the parties to file and serve Position Papers (including the ordered particulars), Houndalas to do this by 28th October 2005 and Burnham to respond by 30th November 2005.
15 On 21st November 2005, Burnham wrote to this Tribunal, claiming Houndalas had failed to provide the Position Paper by 28th October 2005, and claiming that details of the claim had still not been verified and that his patience was at an end.
16 On 13th December 2005, Burnham again wrote to this Tribunal claiming that he had not been served with the Position Paper and that, accordingly, he had no particulars of loss and damage. In the circumstances, he sought an adjournment of the compulsory conference. In his letter, there is reference to a telephone conversation indicating that Houndalas' Position Paper had been forwarded to VCAT on 2nd November 2005, but Burnham had no copy of this.
17 On 16th December 2005, a compulsory conference which served as a directions hearing was conducted by Senior Member Lothian. The dispute was not resolved. A detailed timetable, culminating in a hearing date of 29th May 2006, was set out. Burnham was ordered to file and serve Points of Defence (and any counterclaim) by 27th January 2006. Dates were also set for the filing and serving of witness statements, expert reports, and the like. There appears to have been no order in relation to Further Particulars of Loss and Damage. Burnham is recorded as having been present.
18 On 22nd January 2006, Burnham wrote to this Tribunal stating that the orders of 16th December 2005 had been sent to the incorrect address, and were only received by him on 20th January 2005. He now wished to engage a legal practitioner to act on his behalf, and sought that the time for his filing and serving Points of Defence and any counterclaim be extended to 10th February 2006. The Senior Registrar responded by letter on 24th January 2006, pointing out that the extension of dates in relation to previously made orders required the written consent from all parties involved.
19 On 21st February 2006, Houndalas issued an application seeking that he be granted judgment in the sum of $454,272.57, plus costs, in default of a defence having been filed by Burnham. The attached letter pointed out the number of occasions upon which Burnham had failed to file and serve Points of Defence as ordered.
20 On 23rd February 2006, Doyles, Construction Lawyers, informed the Tribunal that they had been engaged to represent Burnham. That firm continues to act for Burnham.
21 A further directions hearing was conducted by Senior Member Cremean on 1st March 2006. He ordered a new timetable, culminating in a hearing date of 30th October 2006. Amongst his orders are the following. By 15th March 2006, Houndalas was to file and serve any Amended Points of Claim, including in the same any allegations to be made under the Fair Trading Act 1999. (I accept that, at this directions hearing, it was pointed out that VCAT has no jurisdiction to deal with matters relating to the Trade Practices Act, it being Commonwealth legislation). By 29th March 2006, Burnham was to file and serve any request for further and better particulars of the amended claim. These were to be filed by Houndalas by 19th April 2006. Burnham was ordered to file and serve Points of Defence by 10th May 2006, and a further order was made that, in the event that he failed to comply with this, the proceeding would stand determined against him in an amount and for costs to be assessed. This particular order was expressed as prevailing over the balance of the timetable. The application to enter judgment in default of defence was dismissed. An undertaking by Burnham to pay the previously ordered costs was noted, and he was ordered to pay a further amount in respect of the costs of 1st March 2006.
22 On 14th March 2006, Houndalas filed Amended Points of Claim. The amendments did little more than add to paragraphs 40, 42, 48, 50 and 56 that there had been contravention of ss.4 and 11 of the Fair Trading Act - s.4 in relation to paragraphs 42 and 50, and s.11 in relation to paragraphs 40 and 48. The references to the Trade Practice Act were not deleted, despite the discussion at the directions hearing on 1st March 2006. For some reason reference to s.4 and 11 of the Fair Trading Act was also added to paragraphs 10 and 11 despite the fact that such reference was already there.
23 On 19th April 2006, Houndalas filed Further and Better Particulars of the claim, these apparently being pursuant to a request of 23rd March 2006. The majority of the particulars so supplied is to be found by reference to annexures to the document. These annexures are a report from Prowse Quantity Surveyors; a report from BSGM Consulting Building Surveyors; and what appear to be the same lists previously supplied and referred to in paragraph 10 above. Some other particulars are provided in narrative form in the document itself.
24 On 28th April 2006, Burnham requested a directions hearing at which application would be made for various orders. These included a dismissal pursuant to s.78 of the Act; alternatively, a self-executing order in relation to the service of Further and Better Particulars by Houndalas (no submission was made to me in relation to this particular order, which I would not have been minded to grant in any event); the striking out of those paragraphs of the Amended Points of Claim which contain reference to the Trade Practices Act; and the amending of the timetable.
25 On 4th May 2006, Houndalas filed with this Tribunal an application for orders that Burnham had been vexatiously conducting the proceeding; that the proceeding be determined in favour of Houndalas pursuant to s.78 of the Act because of the failure of Burnham to comply with orders of the Tribunal without reasonable excuse; and that Burnham pay to Houndalas the damages sought. The letter accompanying this application referred to Burnham failing to pay the amount of costs ordered against him by Senior Member Cremean.
26 On 8th May 2006, Burnham indicated that further orders would be sought at a directions hearing on 9th May. These included proposed orders that various paragraphs of the Amended Points of Claim be struck out pursuant to s.75 of the Act on the grounds that they were misconceived, lacking in substance or otherwise an abuse of process. A lengthy affidavit of Mr Mulcahy, complete with a number of exhibits, was also filed. A previous and substantial affidavit with exhibits had been filed by him on 28th February 2006.
27 On 9th May 2006, a directions hearing was conducted by Senior Member Davis. Burnham undertook to pay an outstanding costs order, and Senior Member Davis extended the time in relation to the self-executing order of Senior Member Cremean to 20th June 2006. The directions hearing, involving as it did the applications pursuant to ss.75, 77 and 78, was otherwise adjourned. The existence of the application pursuant to s.77 necessitated the hearing of that application by a judicial member, and accordingly, and sensibly, all applications were adjourned so that they could be heard at the same time. Ultimately, the applications came on for hearing before me on 19th June last. The time in relation to the self-executing order was then extended by me.
28 I have set out the history of this litigation in very considerable detail because some appreciation of it is necessary in order to better understand the applications made and the ruling which I shall make. In addition, given the history of this matter, it could be that further preliminary arguments occur in which case a history of the litigation to this point in time might be useful.
29 Against this background, and before proceeding to a ruling, I shall set out summaries of the cases advanced by the parties in the order in which they were presented. I shall refer only to those arguments which I consider to be of importance or relevance. For example, a considerable amount of time was spent arguing about the email address to which a document had been sent, an issue which I consider to be of no great moment.