Plaintiff v Defendants

1 The plaintiff, a home builder, has applied for leave to appeal from an order of the Victorian Civil and Administrative Tribunal which dismissed its counterclaim.

2 The Court has seen fit to apply a rule of expedition under rule 4.14 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008. That rule states:

(3) If it is satisfied that the justice of the case requires, the Court may order that, subject to any order otherwise, an application for leave to appeal be heard and determined by the Court which, if leave is granted, is to hear and determine the appeal and may give directions accordingly.

3 I have informed the parties that this rule is coming to be used more frequently, particularly in domestic building cases, where the estimated time for the hearing of the leave application is not much less than the expectable time that will be taken on the hearing of the appeal, if leave be granted. They tend to be building cases which have run for many days in the Tribunal. In this case it was a four day hearing. In my own experience, in such cases a legal issue can be identified, in the sense of gaining an understanding of what the legal elements of the case were. But, in order to properly expose the question of law, plaintiffs are impelled to take the Court through an excursion of the evidence and the technical details of the case as a first step to overcome the usual attack made by respondents that the questions of law are conceived to obscure what is in truth an attempt to have an impermissible merits review. More than that, it is frequently the case in my experience, especially in building cases, that whilst a question of law can be broadly identified, respondents virulently go on the attack saying that leave to appeal should be refused because the decision was not attended with sufficient doubt, or, is bound to fail. In those situations, the Court can be induced to in effect carry out the similitude of an appeal to see if it has any merits.

4 And so it was in this case. The estimate given for the leave application was for half a day. I doubt if half a day would have been enough. The respondent contended that the applicant's case was hopeless. Were I to evaluate that contention, I would have to examine the substantial amount of material that has been exhibited to the plaintiff's affidavit in support.

5 For my part, I think it is not enough for the Associate Judges to whom applications for leave are being made to look at the reasons and be selfsatisfied that there is a question of law. On the Hulls[3] test, I have to also be satisfied that the decision is attended with some doubt. Here, the plaintiff was the builder and the defendants were the owners. They made a building contract in March 2002 to build a home on the defendants' land at a new estate in Epping. The contract included an allowance for removal of rock. I shall not go into the details of the contract but confine myself to isolating two clauses of the contract documentation referred to in the Tribunal's judgment. An Item 4.1 concerned "fixed site costs". That item included this contractual provision:

An allowance of five cubic metres has been made for rock excavation and a removal from site. Should the actual amount exceed this allowance the balance will be charged by variation at $358 per cubic metre.

6 An Item 6.2, under the heading "excavation" said:

An additional allowance of five cubic metres has been made for rock excavation and removal from site above five cubic metres included in the fixed site costs (total ten cubic metres). Should the actual amount exceed this allowance the balance will be charged by variation at $358 per cubic metre.

7 Avoiding the details, it turned out that much more than five cubic metres of rock had to be removed. There was a total of 131 cubic metres which had to be removed at great expense. The claim by the builder was $46 989 from which he deducted $3580 for the ten cubic metres under the contract. The case has its various dimensions because there were other grounds upon which the builder sought to make this claim. But in essence, the Tribunal acknowledged that the builder would be entitled to that extra sum because, as is manifest, the parties made an agreement at the outset allowing for such an allowance to be made. However, the Tribunal decided the case on the basis that the Domestic Building Contract Act has its own legislative regime concerning the grounds upon which or the means by which a variation is to be claimed. The Tribunal seems to have fastened on the word "variation" in the original contract and from there concluded, ipso facto, that the right to claim the cost of extra excavation of rock depended upon proper compliance with the legislative regime under the Act.

8 The question was whether that was necessarily so. The parties had at the very outset agreed to the builder's entitlement to make the prospective claim. It was already a fixed contractual obligation. It was not a variation in the sense, as often happens in building cases, where one party has a change of mind or wishes to adapt the works to be done in some way.

9 Therefore, to my mind there was, superficially at least, a question to be considered by this Court whether that was the correct analysis, either as a matter of contractual construction or as a matter of construction of the Act. There is more to the case than that but that seemed to me to be the primary question.

10 But despite all that, the defendants by their counsel insist that the case is hopeless, and leave ought not be granted.

11 If the aspiration in modern litigation is to minimise delay and cost, more so now under the ethos of the Civil Procedure Act, then I think the expedition rule in cases such as this does just that. To fully hear the leave application, alone, would require this Court to set aside another day later on this year to hear argument for half to one day. Then, in my experience it is not unknown for an appeal to occur if leave to appeal is refused. That adds to more delay and cost.

12 Apart from that, I see it as wasteful to spend half to one day hearing a leave application, to grant leave to appeal, and then to add further expense by having another hearing of a day in the Trial Division to hear the appeal proper.

13 It is for those reasons that the Court saw fit to apply the expedition rule.

[1] [2013] VSC 238, esp at [4].

[2] (a judicial review case) [2013] VSC 340, esp at [21].

[3] Sec to the Dept of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331, esp at [10] and [13].