Owners Corporations V. Lu Simon Builders Pty Ltd And Others: A Case Of Breach Of Contract And Negligence, Essay.

You must:

1. Attend in person Victorian Civil Administrative Tribunal and observe a case from the Civil claims list. Please note that you bmay need to visit VCAT more than once to find a suitable case to report and to gain a deeper understanding of the VCAT process.

2. You need to research sources to fill the gaps in legal reasoning adopted by the Tribunal Member such as relevant legislation.

3. You must use footnotes (AGLC compliant) to reference your sources.

4. You must also provide an AGLC compliant bibliography recording all sources. Additional information on this task and its requirements are provided below.

The case is between the Owners Corporations and Lu Simon Builders Pty Ltd and others before the Civil Division of the Victorian Civil and Administrative Tribunal at Melbourne. The facts of the case imply the breach of contract on part of Lu Simon by acting in contravention of the warranties as per the provisions enshrined and envisaged in the Domestic Building Contracts Act of 1995.   The hearing before the Civil Division of the Victorian Civil and Administrative Tribunal commenced only on the making of written and oral submissions by both the parties to the case. The documentation used during the proceedings of the case was primarily in electronic format. As a result, the staff of the court displayed the documents to the witnesses involved in the case in computer screens at the respective witness boxes. The onus rested on any party to raise questions upon the relevancy and validity of any document provided that these kinds of questions are raised at the earliest. Even though there was a short debate pertaining to the relevancy and validity of some documents, both the parties agreed upon the finality of the documents to be presented in the tribunal and subsequently, a full list of documents were submitted to the tribunal by the solicitors representing Lu Simon.  

The Civil Division of the Victorian Civil and Administrative Tribunal ruled against the respondents holding them liable for breach of the Consultant Agreement and failure to undertake due diligence thereby being directed to pay damages to the applicant as per the provisions envisaged and incorporated under Part IV AA of the Wrongs Act of 1958. The Building Act of 1993 has also been delved into for the purpose of the understanding of the standards related to works pertaining to construction of buildings. Section 7 of the Building Act of 1993 implies that the Governor-in-Council has the power to formulate and pass regulations for the purpose of to construction of buildings. The Building Act of 1993 is of great importance as it lays down the procedures which are pertinent to the issuance of permits relating to construction of buildings and occupancy. Such permits would aid in the resolution of conflicts in an effective and efficient manner pertaining to the matters related to construction of buildings and occupancy. Sub-section 1 of Section 16 of the Building Act of 1993 implies that work must not be commenced unless a building permit has been issued. Such a provision also implies that the work is in compliance with the Act, Regulations and permit. The Building Code of Australia has played an extremely important role with regard to the resolution of the issues which were pertinent to the case in order to conclude upon a comprehensive judgement by the Civil Division of the Victorian Civil and Administrative Tribunal. In accordance with Regulation 109 of the Building Regulations of 2006, the Building Code of Australia is treated as a legislation that can be construed as per the rules of statutory interpretation. 

Legal regulations and procedures

Various observances can be made from the judgment made by the Civil Division of the Victorian Civil and Administrative Tribunal at Melbourne in the case of Owners Corporations v. Lu Simon Builders Pty Ltd and others. It is implied form the case that the judgement was passed against the respondents Lu Simon Builders Pty Ltd and others thereby holding them liable on various grounds. The Civil Division of the Victorian Civil and Administrative Tribunal also followed the principles of natural justice with regard to the hearing of both the sides taking account of the doctrine of Audi Alteram Partem which means that both the sides should be heard by the court or tribunal depending upon the scenario of the case. The International Fire Engineering Guidelines were delved into by the tribunal in this case.

The construing of the Building Code of Australia was prayed before the Civil Division of the Victorian Civil and Administrative Tribunal by one of the respondents, the Gardener Group in their averment. However, the Civil Division of the Victorian Civil and Administrative Tribunal concluded that the Gardener Group acted in contravention of Section 18 of the Australian Consumer Law which is the Second Schedule of the Competition and Consumer Act of 2010. In this aspect, the tribunal found that the Gardener Group failed to exercise reasonable care with respect to due diligence thereby acting in a negligent manner. As a result, the tribunal relied upon the judgement made by the Court of Appeal of New South Wales in the case of Heydon v. National Road and Motorists Association Ltd. with respect to deceptive means in the providing of legal advice. The case of Boland v. Yates Property Corporation was also referred to by the Civil Division of the Victorian Civil and Administrative Tribunal regarding the success and failure of results in a simultaneous manner in a case where negligence and deception are pertinent to the same kind of material facts. The respondent Elenberg Fraser was unable to provide whether the design for the building complied with the requirements of legislation, most notably the Building Code of Australia.  The respondents Elenberg Fraser, the Gardener Group and Thomas Nicolas have acted in contravention of the provisions of breach of contract thereby failing to exercise reasonable care and acting in negligence as far as the undertaking of the duties and obligations are concerned.

As Australia is under the ambit of the jurisdiction of the common law of England and Wales, the cases which have set precedents can be referred to by the court or judicial authority established by law to exercise jurisdiction comprehensively. In the case of Donoghue v Stevenson, the plaintiff fell ill after consuming a ginger beer in which a snail was found to be floating. As a result she was not only diagnosed with gastroenteritis but also experienced panic attacks thereby being admitted at the Royal Infirmary at Glasgow. In this case, it was held by the House of Lords that the defendant failed to take any reasonable care thereby acting in negligence of the duty it owed to the plaintiff. The judgment of the case implies that the manufacturers owe a duty of care to the people who are potential consumers of their goods and services. The case has acted as a precedent for many cases with regard to the serving as guideline for courts and tribunals in order to determine and identify the aspects for concluding upon the finality of the judgement. The principles regarding the legalities involved in the duty of care have been established by the case. In the case of Grant v. Australian Knitting Mills, the purchaser experienced skin irritation as a result of wearing woolen underwear.  Later on, it was found out that the garments contained massive amounts of sulphur dioxide and sulphites. In this case, it was held by the High Court of Australia, if a manufacture fails take reasonable care of the consumer, it acts in breach of its legal duty of care thereby acting in negligence. It is one of the landmark cases in Australian Law related to the welfare of and protection of the consumers. In the case of Home Office v Dorset Yatch Company, a group of boys were taken by the Home Office to Brownsea Island. The boys who escaped at night had a collision with a yacht when they were yachting. As a result, the owners of the yacht filed a suit against the Home Office on grounds of negligence. In this case, it was held by the House of Lords that the Home Office was liable for negligence as it had acted in breach of its duty to undertake reasonable care of the boys thereby failing to prevent them from escaping. As a result, it can be observed from the case of Owners Corporations v. Lu Simon Builders Pty Ltd and others that the Civil Division of the Victorian Civil and Administrative Tribunal at Melbourne has acted in a proper and appropriate manner thereby deriving a comprehensive solution with regard to the making of a ruling against the respondents, Lu Simon Builders Pty Ltd. taking account of the precedents set by the courts in the cases as aforesaid.

Observances from the judgment

It can also be stated that there are alternative forms of dispute resolution instead of litigation in order to save time and costs. Such alternative forms of dispute resolution include arbitration, mediation and conciliation. Taking account of the merits of the case, it can be observed that the best alternative form of dispute resolution would be arbitration. In this regard, the Commercial Arbitration Act of 2011 would be delved into for the purpose of understanding the procedures relating to the appointment of arbitrators and the significance and validity of the arbitral award as far as the facts of the case are concerned. The Melbourne Commercial Arbitration and Mediation Centre may also have an important role to play in this regard with reference to the resolution of the dispute through alternative means. The means of Alternative Dispute Resolution which can be exercised by the Civil Division of the Victorian Civil and Administrative Tribunal is mediation as per Section 88 of the Victorian Civil and Administrative Tribunal Act of 1998. It would also help the people residing in the Australian state of Victoria to a great extent with regard to the resolution of their disputes.

The primary reason for the opinion by the Civil Division of the Victorian Civil and Administrative Tribunal is to ensure that negligence is prevented and due care is to be exercised while providing services. The rationale behind such an opinion is also inclusive of the fact that the respondents acted in contravention of the Consultant Agreement thereby leading to breach of contract. The evidences are backed up by appropriate legislations and case laws as aforesaid. 

Conclusion

As observed from the aforesaid part, it can be concluded by stating that the critical overview pertaining to the liabilities of the respondents has been justified and are appropriate. It is also imperative that the cases and relevant legislations have been mentioned accordingly in order to comprehend upon the decision of the Tribunal. The procedures related to mediation on part of the Victorian Civil and Administrative Tribunal has also been considered in order to imply the concept of Alternative Dispute Resolution.

Boland v. Yates Property Corporation (1999) 167 ALR 575

Competition and Consumer Act 2010

Sarah Healy,. "Swimming against the Tide." (2016) 6 King's Inns Student L. Rev.  39

Geraint Howells and Stephen Weatherill. Consumer protection law. (Routledge, 2017)

Ken Oliphant and Donal Nolan. Tort law: text and materials. (Oxford University Press, 2017)

Vicki Waye, "Mandatory mediation in Australia’s civil justice system." (2016) 45(2-3) Common Law World Review 214-235.