Analysis Of Lacrosse Tower And Hyblewski And Versa Tile Cases

Read either the case of Lacrosse Tower or both the Hyblewski and Versa Tile Cases and, write a brief analysis of the case. The analysis should be as follows:

1. Brief Introduction, which should include

1. A general introduction to your Case Note

2. A summary of relevant facts

2. Issues arising - these are the key questions or problems that are brought before the court/tribunal and the parties want them answered. Each party's arguments will be in support of or against these questions. Ordinarily, a statement of an issue should begin thus: 'Whether.

3. Law applicable, including Regulations and Legislation. You may include in the list any.

Relevant Facts

Hyblewski v Bellerive Homes Pty Ltd. [2019] ACTSC 44

The Supreme Court had released a judgment which had serious implications on the defendants who were considered to be involved in certain actions that were relating to defective building works which in compliance with the Building Act 2004 (ACT) as such also raised certain serious questions relating to the apportionment of the responsibility regarding the building cases in the ACT.

The plaintiff in this particular case had purchased a land in the ACT in order to build a residential property and there was a builder as well as a certifier respectively who were the defendants of this case who had several defects in the building works. The plaintiff had settled with the builder during the course of the hearing and thus, the case proceeded against the certifier only. The plaintiff had also claimed for damages for numerous amounts of defects and the certifier was considered to deny the liability for those defects by arguing about the standard of care which required the certifier by lessening the fact that the builder had to provide him with certain statutory warranties and in addition to such, it had also been argued upon that the aesthetic appearance along with the quality of building work was not considered to be the responsibility of the certifier. However, both of these statements had been rejected by the Court.

The issues that had been raised in the court of law in order to decide the case were whether there were any defects in the construction of the building. What kind of contractual duty did the certifier have. Did the certifier breach any contractual agreement. What were the damages that were flowing from the breach of any contractual agreement. Lastly, whether the apportionment provisions in ss 140 and 141 of the Building Act applicable.

The relevant law that was considered to be applicable in this particular case were the Building Act 2004 (ACT) with respect to sections 19, 28, 37, 42, 42(1), 42(1) (c), 42(1) (d)(i), 42(2), 43, 43(2), 43(3), 44, 44(2), 44(2) (a), 44(2) (b), 44(5), 88, 140, 141, 141(1). In addition to such, other statutory provisions such as Building (General) Regulation 2008 was also considered to be applicable with respect to sections 31, 31(b), 32, 32(1) (b), 32(2), 33 and the Planning and Development Act 2007 (ACT).

In this particular case the plaintiff had alleged which was also admitted by the second defendant that as an outcome or a consequence of the appointment regarding the second defendant as the certifier and along with such the payment that had been made by the plaintiff there had been a contractual agreement formed between the second defendant and the plaintiff which was considered to contain the implied term that the asset would carry out the work for certification with due care and skill. It can be understood from the case of Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175. The counsel regarding asset had submitted that due to the absence of the terms on the document which had been appointed by the certifier the content relating to the requirement or necessity to exercise reasonable care and skill would have to be determined by having regard to the statutory provisions of the Building Act. After gathering and collecting of evidences the Counsel regarding Asset had provided a submission which was considered to on the basis of the oral evidence that the implied term in the contract required the certifier to take a certain overall view at each stage inspection and along with such in order to exercise the professional judgment there would be certain visual cues that would have to be understood in order to prompt investigations further. It can be observed from the case of Alexander v Cambridge Credit Corp (1987) 9 NSWLR 310. The Asset had not placed any kind of reliance upon any fine print regarding the standard form that had been used for each of the stage certificate and therefore, it was considered to unnecessary in order to determine the relationship relating to the statements on the certificate as well as the statutory obligations of the certifier. It can be understood from the case of Dunn v Hanson Australasia Pty Ltd [2017] ACTSC 169; (2017) 12 ACTLR 138.

Key Issues

The certifier was considered to be found liable for the defects that had been provided due to the building works and it had been held by the Court that if the certifier had executed his statutory provisions along with the contractual duties with certain amount of reasonable care and skill then he would have identified the defects and along with such notified the builder that would have remedied them. While the certifier was not considered to require to identify or rectify all the defects in the works it had been found by the judge that there were these specific defects that the certifier should have remedied as the breaches that had been found were considered to be the cause for the loss that had been suffered.

Through such it can be analyzed and comprehended that with respect to the apportioning liability regarding the statutory provision only allowed the liability or the responsibility for apportionment for each defendant to be wholly liable. Similarly, in this particular case the certifier was considered to be the only defendant who had been found responsible since the other previous defendants had already settled with the plaintiff before any judgment and thus, the apportionment to the builder was not considered to be applicable in this case and thus, the certifier had to bear all the responsibility with respect to the damages that had been suffered.

101 Construction Pty Ltd v Raiz (Building and Property) [2015] VCAT 1473

The proceedings in this specific case is considered to arise from the building dispute that concerns a warehouse in Victoria Street Fitzroy, that had been transformed into a two-level residential dwelling which also had a provision for retail or the commercial offices which was considered to be on the ground floor and had a significant water entry that was considered to cause consequential damage to the ceilings as well as other parts of the building. The plaintiff as well as the defendant had both instigated their applications which were considered to be heard in the Victorian Civil and Administrative Tribunal.

The parties were considered to file consent minutes which would be dated on 16^th of August 2016 and such stated that the respondent had abandoned the participation regarding the above proceedings with the help or consent of the Plaintiff and such minutes were also considered to reserve the costs. These proceedings were considered to be heard by a Senior Member of VCAT and in the first proceeding the Owner had sued the Builder who was considered to be seeking compensation and the amount for such was considered to be assessed by the building consultant as certain reasonable cost that would be in relation to the repairing and completion of the internal as well as external works. The second proceeding was considered to comprise of the Builder who had sued Dr. Danny Raiz who was regarded as the director as well as the sole shareholder and of Versa-Tile which was considered to be the trustee of the family trust for the outstanding amount and along with the delay of the liquidated damages. The Tribunal had also delivered similar reasons for both of the proceedings.

Applicable Laws

The issues concerning this particular scenario was considered to be who were the parties that were contracting and how did the contractual agreement come to an end. Whether there had been any scope of the work under the contractual agreement and whether the works of such were considered to be defective or incomplete.

The relevant law that was considered to be applicable was section 53 of the Domestic Building Contracts Act 1995 which also conferred wide extensive powers to the Tribunal. It also applied the case regarding Age Old Builders Pty Ltd v Swintons Pty Ltd [2003] VSC 307 which gave the expression relating to the Domestic Building Act’s objectives where it was considered to be convenient in order to highlight briefly the two different aspects that would be in relation to the Act’s policy and the first establishment would be considered to be of the tribunal as such is considered to be the primary forum for any resolution for any of the disputes under any contracts relating to domestic building and along with such the aim is considered to be made apparent through several sections of the statutory provision. In addition to such, it also dealt with procedural fairness where they finding of the contract contained certain mutual mistake as to the parties relating to the contractual agreement.

The applicant had submitted that the Senior Member had erred in finding that the builder relating to the case had not repudiated the contractual agreement through the application of a legal test relating to repudiation through the reference of the subjective intentions for the builder regardless of the objective test that had been provided for a reasonable individual in Versa-Tile’s position that had taken the Builder’s behaviour or the conduct into account. These passages were considered to identify the relevant legal test which would make it an objective one through the case of Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623. There had not been any indication of the Senior Member failing to apply for any objective test that would have been detected or identified previously for determination of the repudiation as the Building Contract had also occurred.

The order that had been provided was considered to be for the respondent or the defendant to pay certain amount and they also had the liberty to apply on the questions relating to costs as well as interest. In addition to such, it had also been stated that with respect to the findings of the Tribunal’s findings that had been set out through its Reasons that had been dated 15^th of September 2015, the claim had been made by the Applicant through the proceeding that had set-off against the claim which was made by the Applicant in the proceeding such that the claim was considered to be wholly extinguished as well as thereby dismissed.

Therefore, it can be understood that the applicants were considered to have instituted and established certain error of law through the Tribunal that had been described and the other questions relating to law had been provided by the applicants who pressed such had not been established and such did not identify with any other error of law by the Tribunal. The question after such was considered to be regarding the order that the Court should have made after taking into consideration the liquidation of the Builder as well as the admission of the liquidators relating to the amount which had been awarded against the Builder to versa-Tile as well as the provisions. Therefore, there was an opportunity given to the Builder, the liquidator to make certain submissions which they would wish for form of orders.

References

101 Construction Pty Ltd v Raiz (Building and Property) [2015] VCAT 1473.

Age Old Builders Pty Ltd v Swintons Pty Ltd [2003] VSC 307.

Alexander v Cambridge Credit Corp (1987) 9 NSWLR 310.

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175.

Building (General) Regulation 2008.

Building Act 2004 (ACT).

Building Contracts Act 1995.

Dunn v Hanson Australasia Pty Ltd [2017] ACTSC 169; (2017) 12 ACTLR 138.

Hyblewski v Bellerive Homes Pty Ltd. [2019] ACTSC 44.

Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623.

Planning and Development Act 2007 (ACT).