B and T Constructions (ACT) Pty Ltd v Construction Occupations Registrar

B and T Constructions (ACT) Pty Ltd appealed to the Supreme Court of the Australian Capital Territory against decisions of the ACT Civil and Administrative Tribunal (ACAT) which had confirmed a rectification order issued by the Construction Occupations Registrar. The dispute concerned alleged departures from approved building plans in a development, specifically regarding the materials used for the façade, the provision of translucent glass inserts to balconies, and the quality of balustrades. The Owners – Units Plan 3324, as the Owners Corporation, was the second respondent in the proceedings.

The legal issues before the Supreme Court included whether the primary judge erred in dismissing the appeal against ACAT's decision. Central to this was the interpretation of "loss and damage" under section 36 of the *Construction Occupations (Licensing) Act 2004* (ACT) and whether the rectification order, which required works not complying with approved building plans, was validly made. The court also considered the nature of an appeal removed to the Supreme Court under section 82 of the *ACT Civil and Administrative Tribunals Act 2008* (ACT).

The court reasoned that the Owners Corporation, as the owner of the common property, had a legitimate interest in ensuring the building was constructed in accordance with the approved plans. The fact that the building work did not comply with the approved plans was not in dispute. The court found that the rectification order was properly made under section 38 of the *Construction Occupations (Licensing) Act 2004* (ACT) as the non-complying items constituted departures from the approved plans. The court also determined that the definition of "loss and damage" in section 36 was not a prerequisite for issuing a rectification order under section 38.

The appeal was dismissed, and B and T Constructions (ACT) Pty Ltd was ordered to pay the respondents' costs.