Plaintiff v Defendant

"(1) This section applies if a person starts any action arising wholly or predominantly from a domestic building dispute in the Supreme Court, the County Court or the Magistrates' Court.

(2) The Court must stay any such action on the application of a party to the action if -

(a) the action could be heard by the Tribunal under this subdivision; and

(b) the Court has not heard any oral evidence concerning the dispute itself."

4 The plaintiff now seeks an order staying its own action in this Court. It does so in circumstances where the defendant initially raised the possibility that it would seek a stay of the action but thereafter has given an undertaking that it will not.

5 However unusual the plaintiff's application may be it can be seen that the critical question is whether the action is one "arising wholly or predominantly from a domestic building dispute."

6 Domestic building dispute is defined by s.54 of the Act. The plaintiff contends the dispute is one in terms of s.54(1)(b) between a builder and a subcontractor "in relation to a domestic building contract." The plaintiff does not contend that the dispute is one in relation to the carrying out of "domestic building work" as defined because of the exemption created pursuant to s.6 of the Act by regulations made under s.135(1)(aa). This exemption is conceded to extend to the painting and plastering works in issue save for those performed under the Docklands agreement.

7 "Domestic building contract" is defined by s.3 of the Act to mean "a contract to carry out, or to arrange or manage the carrying out of, domestic building work other than a contract between a builder and a subcontractor."

8 In the present case the contracts pursuant to which the plaintiff sues are conceded by it to be contracts between a builder and a subcontractor.

9 The plaintiff contends, however, that the disputes are "in relation to a domestic building contract" because they relate to works undertaken on behalf of the plaintiff builder in performance of head contracts comprising domestic building contracts.

10 In my view this contention must fail. The dispute between the parties is in relation to the contracts alleged in the statement of claim. The limitation of the notion of domestic building contract which is to be found in its definition does not create a situation where no domestic building dispute can arise between a builder and a subcontractor. Section 54(1)(b) provides that a dispute between a builder and a subcontractor in relation to the carrying out of domestic building work will be a domestic building dispute. The difficulty in the present case is as I have said that the definition of domestic building work has been confined by regulation. The present case would be caught by the definition of domestic building work but for the exemption contained in the regulation. It is conceded this exemption applies to the majority of the work in issue and it follows from the terms of s.57(1) of the Act that the action in this Court cannot be characterised as arising wholly or predominantly from a domestic building dispute.

11 The Court of Appeal has recently affirmed that the provisions of the Act must be understood in context.[1] In the present case, however, no contextual considerations have been identified which would or could lead to a different conclusion from the plain meaning of the legislation and the regulations. The Act itself provides for the better definition of building works to which it does and does not apply. The plain effect of the regulations made pursuant to the Act is to exclude works done by a subcontractor of the type principally (if not wholly) in issue in this case. Accordingly the application for stay will be dismissed.

12 I do however propose to order mediation of the matter forthwith because it is apparent from discussion with counsel that the expedition of mediation was a significant factor in the Plaintiff's desire for a change of venue from this Court to the Victorian Civil and Administrative Tribunal.

[1] Winslow Constructions v Mt Holden Estates [2004] VSCA 159