Philp v Mirvac [2004] VCAT 367

Victorian Civil and Administrative Tribunal|2004-03-10|Before: Mr J, Batt J

Domestic building - Interlocutory injunction - tests to be satisfied

1. that exhibit MVO6 to the affidavit of Michael Vincent O'Brien sworn 9 March 2004 be returned to the First Respondent immediately following the determination by the Tribunal of the application heard 10 March 2004 and no copies of it be retained on the Tribunal's file;

2. the legal advisers for the Applicant not show or provide any copy of or disclose any information in exhibit MVO6 to the Applicant or to anyone else, and to return all copies of MVO6 to the Respondent immediately following the determination of the application heard 10 March 2004.

3. The orders made on 5 March 2004 are continued, as is the undertaking then given, pending the hearing and determination of the proceeding.

5. I direct the Principal Registrar to re-list this matter on a convenient date for the purpose of making directions with respect to its further conduct.

Mr J. W. K. Burnside Q.C. with Mr J. B. Davis of Counsel

1. I have listened carefully to the arguments of both sides in this matter and I have considered their written submissions respectively. I have also considered the affidavit material in the case.

2. Constraints of time do not allow me to provide reasons for decision any more detailed than these.

3. The Applicant argues that the injunction I granted on 5 March 2004 should be confirmed pending hearing and determination of the matter.

4. The confirmation of the 5 March orders is opposed by the First Respondent. The Second Respondent has not appeared.

5. I wish to make clear from the outset that I am satisfied on the facts of this case that the Tribunal is not lacking jurisdiction either to make the orders sought or their continuance. I am satisfied that I have before me a matter which is properly described as a domestic building matter.

6. In my view this matter falls under s54 of the Domestic Building Contracts Act 1995 as a "domestic building dispute". I am satisfied the work involved is "domestic building work" within s5 and not excluded under s6. In my view, on the materials, the First Respondent is a "builder" considering paragraphs (b) and (c) of the definitions of that expression in s3(1). I am satisfied the contract between the parties (or material parts of it, and to that extent, in that case) is a "domestic building contract" also as defined in s3(1).

7. It follows that I consider I may proceed to determine whether the injunctive orders may be continued or not or whether they should be discharged.

(b) the balance of convenience must lie in the direction of their continuance if the orders are to be continued.

9. I am satisfied to the requisite degree that a serious question to be tried does exist. I refer to s11(1) of the 1995 Act. Considering that provision, the issue is whether in law the First Respondent may have resort to the Deposit Bond. I do not regard the argument, that it may not do so, as lacking any respectability at all. I note the observations of Batt J in Alex Focus [1998] 3VR at 395.

10. There is a further serious issue to be tried in my view and that concerns whether, upon its proper construction, the Deposit Bond has indeed already expired.

11. The next question is where the balance of convenience lies.

12. I consider, after some anxious consideration, that it lies in favour of continuing the orders in question. I rely upon these factors -

(b) the undertaking given by the Applicant (such that if the Orders should not have

been made, if ultimately found to be so, the undertaking may be resorted to);

whether an illegality may have occurred and if ultimately found to be so, by not continuing the orders, conduct proscribed by the Act will have occurred).

13. Further I am not persuaded any discretionary consideration inclines me away from continuing the orders. I cannot see in this regard that there is any delay of the kind which is such as to disentitle to relief being continued.

14. It is true that the First Respondent, on one analysis, may be prevented from having resort to the Deposit Bond by the orders being continued. However I would point out that if the first serious issue to be tried is decided against it, ultimately, then there was no lawful entitlement to the Bond in the first place. Secondly I point out the second serious issue to be tried - namely, that if it is decided that the Bond on its proper construction has already expired, then it is not my confirmation of the orders which is precluding resort to it. Lastly I point to the undertaking given by the Applicant - which should suffice in the event of the First Respondent suffering loss by the orders being made. I was not persuaded that the undertaking was not made honourably or was hollow. I had the advantage of seeing the Applicant give sworn evidence.

15. The orders I made on 5 March 2004 I continue until further order pending the hearing and determination of the proceeding. The undertaking I record as being given again.

16. I direct the Principal Registrar to re-list this matter on a convenient date for the purpose of making directions with respect to its future conduct.

Building Contracts Act 1995

At a glance

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Decision date

Before

Source

Judgment (26 paragraphs)

Parties

Legislation Cited (1)