VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
civil DIVISION
CIVIL CLAIMS LIST		VCAT REFERENCE NO. C7058/2019
CATCHWORDS	
Claims made by the purchaser of an apartment, from a private seller, for breach of the contract of sale  – Sale of Land Act 1962 section 48A – Australian Consumer Law and Fair Trading Act 2012 section 217 – Wagner v Usatov [2014] VCAT 1198.	

APPLICANT	Ming Han	
RESPONDENT	Stephen Thomas Pirrie	
WHERE HELD	Melbourne	
BEFORE	Deputy President I. Lulham	
HEARING TYPE	Hearing	
DATE OF HEARING	13 December 2019	
DATE OF ORDER	19 December 2019	
Date of reasons	19 December 2019	
CITATION	Han v Pirrie (Civil Claims) [2019] VCAT 1996	

Order

The proceeding is struck out for want of jurisdiction.

I. Lulham
Deputy President
APPEARANCES:		
For Applicant	In person	
For Respondent	No appearance	

Reasons

1.	The Applicant purchased a residential apartment from the Respondent. The Applicant claims damages from the Respondent, in effect for breach of the contract of sale. The Applicant complains that some appliances in the apartment were faulty, and that the Respondent failed to give the Applicant two keys to the apartment. The appliances are ‘fixtures’, which means that at law they are “part of the land” and not separate “chattels”.

2.		The Applicant acknowledges that the Respondent was a “private seller”, and not for example a developer of real estate or a person who is in the business of selling apartments.

3.	The first question that arises, then, is whether the Tribunal has jurisdiction (that is, power) to hear and determine the Applicant’s claim. The Respondent did not appear at the Tribunal, and so neither conceded nor challenged the Tribunal’s jurisdiction.

4.	If the Tribunal does not have jurisdiction, it does not mean that the Applicant cannot sue the Respondent. It simply means that he must do so in a Court, such as the Magistrates’ Court.

5.	The significance of the Respondent being a private seller is that the Tribunal does not have jurisdiction under the Australian Consumer Law and Fair Trading Act 2012. Briefly, the sale of land falls within the definition of “services”, and VCAT only has jurisdiction under that Act in respect of services which were supplied “in trade or commerce”. Developers sell land (and apartments are ‘land’ for these purposes) in trade or commerce, but private sellers do not.

6.	There is a limited extension to VCAT’s jurisdiction in relation to sales of land, created by section 48A of the Sale of Land Act 1962. However, it does not apply.

7.	The first thing to note is that the section does not say something as simple as “VCAT can hear a case arising from the sale of land”.

8.	Omitting irrelevant words, section 48A of the Sale of Land Act 1962 includes the following:

48A	Application of Australian Consumer Law and Fair Trading Act 2012

(1)		… Part 8.2 … of the Australian Consumer Law and Fair Trading Act 2012 extend and apply (with any necessary modifications) to this Act as if any reference in those provisions to the Australian Consumer Law and Fair Trading Act 2012 were a reference to this Act.

…

 (4)	In this section—

	this Act includes the regulations.

9.	Part 8.2 of the Australian Consumer Law and Fair Trading Act 2012 includes the following:

217	Actions for damages 

(1)	A person who suffers loss, injury or damage because of a contravention of a provision of this Act may recover the amount of the loss or damage or damages in respect of the injury by proceeding against any person who contravened the provision or was involved in the contravention. 

(2)	Except in accordance with section 182(3), a person may not recover in VCAT an amount for any personal injury suffered. 

(3)	A proceeding under this section may be brought before VCAT or in any court of competent jurisdiction. 

(4)	… 

10.	The result of section 48A is that section 217(1) must be read as if it says:

(1) 	A person who suffers loss, injury or damage because of a contravention of a provision of the Sale of Land Act 1962 or a provision of the regulations made under the Sale of Land Act 1962 may recover the amount of the loss or damage or damages in respect of the injury by proceeding against any person who contravened the provision or was involved in the contravention. 
 
11.	The VCAT case of Wagner v Usatov was one in which the seller of land breached the Sale of Land Act 1962, by not disclosing all relevant information to the purchaser as required by section 32 of that Act. VCAT awarded an amount of damages to the applicant.

12.	Senior Member Vassie explained the effect of the interplay between the above sections of the two Acts as follows:

46.	Section 217 of the Australian Consumer Law and Fair Trading Act 2012 (‘the 2012 Act’) creates a right of action for a person who suffers loss because of a contravention of that Act and confers upon VCAT a jurisdiction to determine any proceeding brought to pursue that right of action. So far as is presently relevant, s217 provides:
 
(1) 	A person who suffers loss, injury or damage because of a contravention of a provision of this Act may recover the amount of the loss or damage or damages in respect of the injury by proceeding against any person who contravened the provision or was involved in the contravention.

...

(3)	A proceeding under this section may be brought before VCAT or in any court of competent jurisdiction.
 
47.	Section 48A of the Sale of Land Act is headed ‘Application of Australian Consumer Law and Fair Trading Act 2012’. Section 48A(1) provides: 

(1) 	Sections 125, 195 and 196 and Part 8.2 (except section 213) of the Australian Consumer Law and Fair Trading Act 2012 extend and apply (with any necessary modifications) to this Act as if any reference in those provisions to the Australian Consumer Law and Fair Trading Act 2012 were a reference to this Act. 

	Section 217 of the Australian Consumer Law and Fair Trading Act is within Part 8.2. 

48.	The combined effect of those two sections is that a person who claims to have suffered loss as a result of a contravention of a provision of the Sale of Land Act 1962 may bring a proceeding at VCAT, under s 217 of the 2012 Act, to recover the amount of the loss against any person who contravened the provision of the Sale of Land Act. In other words, it is as if the words ‘this Act’ in s 217 were ‘the Sale of Land Act 1962’ instead.
 
49.	… 

50.	Chapter 7 of the 2012 Act confers another jurisdiction upon VCAT: a jurisdiction to hear and determine a ‘consumer and trade dispute’, which includes a dispute or claim arising between a purchaser and a supplier of ‘services’. The applicable[] definition of ‘services’ in the Australian Consumer Law (Victoria) includes an interest in real property that is granted ‘in trade or commerce’. The sale of land by the Usatovs to Mr Wagner and Ms Brennan was the supply of an interest in real property, but there was no evidence that could have led to a conclusion that the sale took place ‘in trade or commerce’; usually the sale of a residential property by a vendor who is not in the business of selling land or who has not conducted a business upon the property will not be a sale ‘in trade or commerce’. So there is no point in considering whether, apart from any obligation that s 32 of the Sale of Land Act imposed, the Usatovs had other obligations under the general law, or under the Section 173 Agreement itself, to disclose the planning permit, or condition 14 of the planning permit, or the Section 173 Agreement, before the contract was entered into or before settlement occurred; VCAT has no jurisdiction to decide such questions. 

51.	I have decided, however, that there was a contravention of s 32 of the Sale of Land Act. There is jurisdiction under s 217 of the 2012 Act to award the amount of any loss proved to have been suffered because of the contravention. 

12.	In the current case, all the claims made by the Applicant are made on the basis that the Respondent breached terms of the contract of sale. No claims are made on the basis that the Respondent breached an obligation under the Sale of Land Act 1962, for example by not disclosing information properly in a section 32 statement.

13.	It follows that the Tribunal does not have jurisdiction and that the proceeding must be struck out.

I. Lulham
Deputy President

19 December 2019