Integrated Technologies Australia Pty Ltd (ACN 111 906 202)

Application under section 77 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic)

Integrated Technologies Australia Pty Ltd v Wai Sing Lai (Building and Property) [2025] VCAT 696

1. Pursuant to section 77(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) this proceeding is struck out.
2. Pursuant to section 77(3) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), this proceeding is referred to the Supreme Court of Victoria.
3. The principal registrar is directed to cause the VCAT file for this proceeding to be conveyed to the Registrar of the Supreme Court of Victoria.
4. The parties' costs of this proceeding, including their costs of the application under section 77 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), are reserved and are hereby also referred to the Supreme Court of Victoria.

1. In 2021 Integrated Technologies Australia Pty Ltd ("ITA") issued this VCAT proceeding against Wilson Wai Sing Lai and Anitha Shu Ting Wong ("the Owners") and Eastcon Pty Ltd ("the Builder") claiming payment of money said to be due for the performance of services in auditing electrical and home automation works which had already been carried out in the Owners' home, and providing a draft scope of works for future home automation works and remediation. ITA alleged that it provided the scope, and a quotation for the design and documentation of an integrated home automation system, which was accepted, and that thereafter it supplied and installed an integrated home automation system.[1] ITA pleaded that the Builder was the Owners' agent in receiving the scope of works and quotation, and in accepting the quotation.[2] ITA alleged that its proffered written agreement ("residential installation contract") was not signed but that arising from the Owners' conduct in directing ITA to perform the scope and in requesting variations they are bound, or should be bound, by the residential installation contract. Alternatively, ITA claims payment from the Owners pursuant to the residential installation contract entered into by the Builder as their agent,[3] or on a quantum meruit,[4] or for goods and services supplied to the Owners at their request.[5]
2. The Owners defend the claim. Amongst other things, they deny having any contract with ITA, asserting that the Builder had no authority to enter any contract on their behalf, and that the Builder engaged ITA as its subcontractor.[6] The Owners also seek to set off an alleged overpayment, and they assert that ITA's services were not rendered with due care and skill in breach of the consumer guarantees under section 60 of the Australian Consumer Law.[7] The latter allegation is to the effect that the things supplied by ITA were defective and in that respect the Owners pleaded that they would rely on an expert's report by Mr Pasquale Valpied.
3. The Owners also brought a claim in VCAT against the Builder, by filing and serving Points of Claim dated 7 January 2025. In that pleading the Owners alleged they had engaged Weston Consulting Pty Ltd to provide project management services, which included the selection of a competent builder. The Owners say that they entered into a cost plus major domestic building contract with the Builder in reliance on Weston's advice. Weston had, and breached, its fiduciary duties to the Owners because of a conflict of interest which affected its selection of the Builder. The Builder was bound by section 18 of the Australian Consumer Law not to engage in conduct which was misleading or deceptive, or likely to mislead or deceive, in trade or commerce, and by the consumer guarantee set out in section 60. The Owners alleged that the Builder contravened the prohibition in section 18 and failed to meet the consumer guarantee under section 60, and that the Builder breached its domestic building contract with the Owners.
4. On 13 December 2024 the Owners issued proceeding S ECI 2024 06770 in the Supreme Court of Victoria against Weston, the Builder, and individuals who are officers of both companies.[8] It is sufficient to say that elements of the Statement of Claim in the Court proceeding are consistent with the Owners' allegations in the VCAT proceeding. The Owners allege that Weston's services to the Owners were subject to the consumer guarantee under section 60 of the Australian Consumer Law,[9] that the Builder's services to the Owners were also subject to that consumer guarantee,[10] that those services were deficient in relation to which allegation the Owners rely on the expert's report of Mr Pasquale Valpied, and that the Builder contravened the prohibition in section 18.[11]
5. Where the Owners mention the "Australian Consumer Law" in the above pleadings, and in correspondence passing between the parties' legal practitioners, they refer to it as "Schedule 2 of the Competition and Consumer Act 2010 (C'th)".[12] In paragraph 11A of their Amended Points of Defence dated 7 January 2025 they plead that the Tribunal has no jurisdiction to hear and determine the proceeding.
6. Which brings us to today's application by the Owners, for an order dismissing this VCAT proceeding so that the issues can be dealt with by the Supreme Court in its proceeding S ECI 2024 06770.
7. Having heard the parties' submissions, I conclude that it is appropriate to make an Order under section 77 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). The strongest grounds are first, that doing so would enable the parties to have all of their disputes dealt with in the one, Supreme Court, proceeding; and secondly that the risk of there being inconsistent findings of fact made by the Supreme Court and VCAT in separate proceedings would be averted.
8. The third ground raised by the Owners is the submission that the President's decision in Plunkett v Portier Pacific Pty Ltd.[13] In paragraph 40 of his Reasons for that decision Woodward J described the resource challenges faced by the Tribunal in dealing with large, complex disputes which can require lengthy hearings. His Honour said at paragraph 41(d) & (e) that the exercise of the discretion to make an order under section 77 involves a subjective balancing process in which the relevant factors will vary and in which both the question of the comparative weight to be given to particular factors in the circumstances of a particular case and the decision whether the power should be exercised, are matters for individual judgment and, to a significant extent, matters of impression; and that the appropriate test is not whether it is clear that VCAT is an inappropriate forum, but is a less stringent test, namely, whether the subject matter of particular proceedings would be more appropriately dealt with by another tribunal, a court, or any other person or body.
9. It is apparent that the dispute which is the subject of the Owners' Supreme Court proceeding includes a number of issues that overlap with those in this VCAT proceeding; that there are parties in common in both proceedings; that the Owners' claims in equity could not all be brought in VCAT, but that all of the issues present in the VCAT proceeding could be brought in the Supreme Court; and that the hearing of the Supreme Court proceeding is likely to be complex and lengthy all of which make the subject matter of this VCAT proceeding more appropriately dealt with by the Supreme Court with, or as part of, its proceeding S ECI 2024 06770.
10. The final potential ground, that the manner in which the Owners refer to the Australian Consumer Law, is somewhat problematic. I do not consider it to be necessary to express a firm view on that third, potential ground.
11. I do not seek to say too much about the Constitutional point. As it is clear that this Tribunal does not have jurisdiction to hear a "matter" arising under Commonwealth law,[14] in various cases the question has arisen whether a party who expressly refers to "Schedule 2 of the Competition and Consumer Act 2010 (C'th)" has actually invoked Commonwealth law, or whether as a matter of a slip or ambiguous drafting, or - in view of the large number of persons who represent themselves in VCAT litigation - arising from ignorance of the distinction between Commonwealth and Victorian law and the existence of the Australian Consumer Law (Victoria), they have not done so but have "really" sought to rely on the Australian Consumer Law (Victoria). There are situations in which laws that might apply to a set of facts are clearly different and the purpose of a party relying on one rather than the other are transparent,[15] but less so where the text in Schedule 2 of the Competition and Consumer Act 2010 (Cth) is both a Commonwealth law and a law of Victoria. It would be regrettable if the law on this issue evolved to the point where a party could effectively remove a proceeding from this Tribunal by a tactical choice of legislation.
12. I simply mention a few recent cases without drawing a conclusion.
13. In Van Sanden v Mercedes-Benz Australia/Pacific Pty Ltd [2025] VCAT 128 Deputy President Wilson surveyed the authorities and the mechanism in section 77 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) in paragraphs 4 - 16 of his Reasons. Having said in paragraph 12 that the reason why a "straightforward" conclusion that the Tribunal lacks jurisdiction in a proceeding in which a party says it relies on Schedule 2 of the Competition and Consumer Act 2010 (Cth) "is because it is well known in Victorian case law that the 'text' of Sch 2 of that Commonwealth law has also been enacted by the Parliament of Victoria as a Victorian law". DP Wilson noted that in Citta Hobart Pty Ltd v Cawthorn[16] the High Court explained that whether a 'matter' falls within federal jurisdiction is not what the party intends but rather something that the tribunal or court considering the jurisdictional question must assess objectively. The party's subjective intention or motive for asserting reliance on a law, right, duty or obligation is irrelevant, as is the question of whether the party even knows that the law they rely on is a Commonwealth law.
14. Van Sanden v Mercedes-Benz arose from Mr Van Sanden's purchase of a used Mercedes-Benz car in Western Australia, sight unseen, and his attempt to assert rights against Mercedes-Benz as the 'manufacturer' under the consumer guarantee provisions of the Australian Consumer Law. DP Wilson identified correspondence by Mr Van Sanden in which he expressly referred to the Competition and Consumer Act 2010 (Cth) as the basis of his claim. DP Wilson's objective assessment was that Mr Van Sanden was relying on Commonwealth law and not Victorian law, even though (at paragraph 80) "this is not a case where it is possible to objectively characterise his allegations as one solely reliant on Sch 2 of the Consumer and Competition (Cth) as the Victorian law found in the 'text' of Sch 2, enacted by the ACLFTA as a Victorian law as the Australian Consumer Law (Victoria)".
15. In Coady v Yachting Victoria Inc[17] at paragraph 34 DP Wilson said that, "While I have regarded the issues in [previous Court proceedings brought by Mr Coady arising from the same yacht race as was the subject of this case] as not forming part of the same 'justiciable controversy' in the civil claim between the parties in this case, the issue was not argued before me and I confess it is possible that I might be wrong about that. The operation of this aspect of the Australian constitutional doctrine of federal jurisdiction is difficult to explain simply, and the High Court has not sought to establish a precise test about it, other than to say that identification of what is and what is not part of a 'single justiciable controversy' - and thus the one 'matter' within the meaning of Ch III of the Commonwealth Constitution - can be 'in the end, ... a matter of impression and of practical judgment', although that is not the test". At paragraph 38 of his Reasons DP Wilson said that as soon as Mr Coady alleged that his daughter had been discriminated against on the basis of her sex, he created a 'matter' which was a justiciable controversy in federal jurisdiction, and deprived the Tribunal of jurisdiction. Mr Coady also applied to amend a pleading during the hearing of his case, to make new allegations of direct reliance on specific Commonwealth laws relating to the recognition and enforcement of arbitral awards in Australia.
16. Decisions of VCAT are not precedents in the way of Court decisions. Their importance sometimes lies in the fact that the Tribunal is the first legal body to consider particular issues.
17. In D'Angelo v The Domicile Group Pty Ltd [18] the Supreme Court was faced with the unusual situation where applicants in VCAT, whose final hearing had commenced, asserted that VCAT did not have jurisdiction because they had relied on section 18 of Schedule 2 of the Competition and Consumer Act 2010 (Cth). McDonald J was not satisfied that the applicants' advancing of claims under section 18 caused VCAT to have no jurisdiction. At paragraph 18 His Honour said that he did not accept the applicants' contention that simply because their pleading referred to the Australian Consumer Law and not the Australian Consumer Law and Fair Trading Act 2012 (Vic), that it should be read as referring to the Australian Consumer Law as it operates as a law of the Commonwealth. His Honour said that it does not follow from section 8 of the Australian Consumer Law and Fair Trading Act 2012 (Vic) that the plaintiff must use the expression "Australian Consumer Law (Victoria)" to mean the Victorian law. It was necessary to examine the context in which the reference appears, and that doing so compelled His Honour to conclude that the reference to the Australian Consumer Law in the applicants' Amended Points of Claim and Further Amended Points of Claim was a reference to the Australian Consumer Law as a Victorian law.

1. I am satisfied that it is appropriate to make an order under section 77(3) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) transferring the subject matter of this proceeding to the Supreme Court of Victoria.
2. The referral also includes the question of costs in the VCAT proceeding, both generally and in relation to the application under section 77 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).

[1] Paragraphs 7 - 10 of the Points of Claim dated 21 December 2021.

[2] Paragraphs 8 & 9, and paragraph (j) of the Particulars sub joined to paragraph 11, 13, 14(a) of the Points of Claim dated 21 December 2021.

[3] Paragraph 17 of the Points of Claim dated 21 December 2021.

[4] Paragraph 18 of the Points of Claim dated 21 December 2021.

[5] The allegation of goods and services supplied to the Owners at their request is in paragraph 19 of the Points of Claim dated 21 December 2021. ITA amended its Points of Claim on 15 June 2024, deleting this basis of its claim. The pleading was otherwise unaltered.

[6] Paragraph 9 of the second and third respondents' Amended Points of Defence dated 7 January 2025.

[7] Paragraph 20 of the second and third respondents' Amended Points of Defence dated 7 January 2025.

[8] The Writ appears as page 464 in the bundle of exhibits to the affidavit of Imran Fatah affirmed 15 December 2024.

[9] Paragraph 9 of the Statement of Claim dated 13 December 2024.

[10] Paragraph 15 of the Statement of Claim dated 13 December 2024.

[11] Paragraph 29 of the Statement of Claim dated 13 December 2024.

[12] For example, in paragraph 20 the second and third respondents' Amended Points of Defence dated 7 January 2025. There are multiple references to the legislation in this form.

[13] [2024] VCAT 205.

[14] Meringnage v Interstate Enterprises Pty Ltd [2020] VSCA 30.

[15] Where, for example, a defendant has concurrent liability in tort and contract but the limitation periods and the assessment of damages differ; where an injury caused to a plaintiff could be characterised as the result of the defendant's breach of a common law duty but also of statutory duties under anti-discrimination laws, and so on.

[16] [2022] HCA 16.

[17] [2025] VCAT 427.

[18] [2025] VSC 395.