[1981] VR 131
R v LEVINE EX PARTE DE JONG
SUPREME COURT OF VICTORIA
MURRAY, J
29 May, 04 June 1980
[1981] VR 131
Administrative law — "Small claim" — Contract of sale of land with condition
for rendering of services — Claim for faulty work — Collateral agreement
continuing to have effect after conveyance — Tribunal's jurisdiction — "Claim
that has arisen not more than two years previously" — Construction — Cause of
action must arise within the period — Whether relief should be refused — Costs — Small Claims Tribunals Act 1973 (No. 8486), s2(1)
.
(1) A "small claim", which by the definition in s2(1) of the Small Claims
Tribunals Act 1973 is confined to claims arising out of contracts for the
supply of goods or for the provision of services, arose from a condition in a
contract for the sale of land whereby the vendors undertook to remedy certain
defects in the dwelling sold thereunder. The circumstance that the principal
purpose of the contract was the sale of land, did not require that the
condition for the rendering of services be ignored.
(2) The conveyance to the purchasers of the land sold by the contract did not
effect a merger of the condition for the rendering of services in the
conveyance, for the condition constituted a collateral agreement which
continued to have effect.
(3) S2(1) of the Act--which provides that a "Small Claim" is "a claim that has
arisen not more than two years previously"--requires that the relevant cause
of action must arise within the period.
(4) The Tribunal having exceeded its jurisdiction by making an award in
respect of a claim arising more than two years previously, it was not
appropriate, in the exercise of the Court's discretion, to refuse relief by
way of prerogative writ to the applicants by reason of their conduct.
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[1981] VR 131
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