Shaw v Yarranova Pty Ltd

[2006] VSC 45

Supreme Court of Victoria

Built by Barristers,
For Australian Law.

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Interrogate

Catchwords

1. Building and Construction
2. › Domestic building contracts
3. › Definition of 'domestic building contract'
4. › Contract for sale of apartment 'off the plan'
5. › Whether contract to 'arrange or manage the carrying out of' domestic building work
6. › Whether developer's obligations under contract of sale made it a domestic building contract
7. › Domestic Building Contracts Act 1995 (Vic), ss 3(1), 5(1), 8, 9
1. Building and Construction
2. › Domestic building contracts
3. › Definition of 'domestic building work'
4. › Work 'associated with the construction or erection of a building'
5. › Whether developer's facilitation obligations constituted domestic building work
6. › Domestic Building Contracts Act 1995 (Vic), s 5(1)(e)
1. Statutory Interpretation
2. › Purposive construction
3. › Interpretation of definitions in regulatory legislation
4. › Absurdity of competing construction
5. › Statutory scheme as context for interpretation
6. › Domestic Building Contracts Act 1995 (Vic), s 3(1)
7. › Building Act 1993 (Vic), s 137E(a)
1. Practice and Procedure
2. › Stare decisis
3. › Coordinate jurisdiction
4. › Duty of trial judge to follow earlier decision of judge of same court
5. › Whether earlier decision clearly wrong
6. › Judicial comity between judges of coordinate jurisdiction

Quick Take

A contract for the sale of an apartment 'off the plan' by a developer who is not a registered builder, which requires the developer to enter into a major domestic building contract with a registered builder for the construction works, is not itself a 'domestic building contract' or 'major domestic building contract' within the meaning of the Domestic Building Contracts Act 1995 (Vic). The developer's obligations to facilitate the construction do not constitute 'domestic building work' under s 5(1)(e). This means buyers in such arrangements cannot invoke the protections of the Domestic Building Contracts Act against the developer directly under the contract of sale, though they retain the benefit of statutory warranties under ss 8 and 9 through the separate building contract. The decision of Byrne J in Mirvac v Philp to the contrary should not be followed.