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[2011] VCAT 2267
General information, not legal advice.
Victorian Civil and Administrative Tribunal
2011-12-02
Original judgment source is linked above.
[1] The tribunal Book was admitted into evidence by consent as Exhibit A-3.
[2] Agreed Statement of Facts, Introductory Note C.
[3] See the points of claim filed in the Spiteri application (D736/2008) dated 15 September 2009.
[5] See TB 31 clause 3.6 of the insurance policy.
[6] Further amended points of claim dated 24/11/10 para 3 and points of defence dated 17/12/10 para 3.
[7] Further amended points of claim dated 24/11/10 para 4 and points of defence dated 17/12/10 para 4.
[8] Statement of agreed facts para 9 and TB 576 to 580.
[9] See the Points of Claim against Civil Test as the joined party filed in the Spiteri application dated 24 March 2010.
[10] See the Points of Defence filed by Civil Test as the joined party filed in the Spiteri application dated 17 June 2010.
[11] See Further Amended Points of Claim filed by the applicants and the insurer in the Spiteri application (D736/2008) dated 24 November 2010.
[12] See points of claim filed by Homes as applicant against the insurer and Spiteri dated 13 May 2010.
[18] Which can include trees, watering, site drainage and plumbing leaks (TB 654).
[20] Statement of Steven Buffington Exhibit JP-3 paragraph 33.
[22] Witness Statement of Adrian Roads Exhibit R-1 paragraph 21. Witness Statement of David Kelly Exhibit R-6 paragraph 6.
[23] Witness Statement of Adrian Roads Exhibit R-1 paragraph 22. Witness Statement of Mark Davis Exhibit R-3. Witness Statement of Bruce Adams Exhibit R-8 paragraph 8.
[25] Witness Statement of Bruce Adams Exhibit R-8 paragraph 8.
[26] Witness Statement of Adrian Roads Exhibit R-1 paragraph 28. Witness Statement of David Kelly Exhibit R-6 paragraph 9-13. Witness Statement of Bruce Adams Exhibit R-8 paragraph 11.
[28] Homes Points of Claim against Civil test paragraphs 2-5 and Further and Better particulars filed by Homes.
[38] Ex R5 and Transcript pages 102-109.
[39] TB 701- 710 - Report of TD&C Pty Ltd - December 2009 and Exhibit R4 and Transcript pages 79-97.
[46] Agreed Document No. 4. TB 590-619.
[54] Witness Statement of Adrian Roads Exhibit R-1 paragraph 21. Witness Statement of David Kelly Exhibit R-6 paragraph 6.
[55] Witness Statement of Adrian Roads Exhibit R-1 paragraph 22. Witness Statement of Mark Davis Exhibit R-3. Witness Statement of Bruce Adams Exhibit R-8 paragraph 8.
[56] Witness Statement of Bruce Adams Exhibit R-8 paragraph 8.
[57] Witness Statement of Adrian Roads Exhibit R-1 paragraph 28. Witness Statement of David Kelly Exhibit R-6 paragraph 9-13. Witness Statement of Bruce Adams Exhibit R-8 paragraph 11.
[59] See for example Brown at TB 104 to 106; Turnbull at TB 707 to 708; Holt TB 185 to 188; Censeo TB 236 to 238.
[65] Woolcock Street Investments Pty Ltd v CDG Pty Ltd & Anor [2004] HCA 16; (2004) 216 CLR 515 at 529; Bryan v Moloney (1995) 182 CLR 609 at 617_._
[66] Perre v Apand at [10]-[11], [104], [108]; Woolcock at [23]-[24], [31]-[33], [80].
[67] Woolcock (supra) per Gleeson CJ, Gummow, Hayne and Heydon JJ at paragraphs [14], [15], [17].
[68] Further Amended Points of Claim dated 24 November 2010 at paras 6 and 7.
[71] TB 26 definition of 'defective' in relation to Domestic Building Work.
[72] TB 27 exclusions from Domestic Building Work.
[73] Points of Claim in the Appeal Applications paragraph 9.
[76] Serong v Dependable Developments Pty Ltd (Domestic Building) [2009] VCAT 760 at paras 66 and 349_; Lawley v Terrace Designs Pty Ltd (Domestic Building)_ [2006] VCAT 1363 at para 318.
Spiteri & Ors
Stonehenge Homes & Associates Pty Ltd
Domestic Building Contracts Act 1995 - s 8 Warranties - sections 5(1)(e), 6(f) and 30 - claim by a number of subsequent purchasers against builder of homes - joinder of geotechnical engineer as party - whether contract between builder and joined party- whether joined party owed duty of care to builder, original owner and subsequent owners where the claim is for pure economic loss - Woolcock St Investments Pty Ltd v CDG Pty Ltd & Anor [2004] HCA 16; (2004) 216 CLR 515 applied and Perre v Appand [1999] HCA 36; (1999) 198 CLR 180 applied - whether insurer under Domestic Building Insurance Policy entitled to recovery against builder subrogating to the rights of the owners under a number of insurance policies - cross applications by builder seeking declarations that payments of claims by insurer under a number of insurance policies to the owners wrong in fact and law - questions of fact and law agreed by the parties answered by the Tribunal.
(2004) 216 CLR 515
(1999) 198 CLR 180
(1995) 182 CLR 609