CES Queen (Vic) Pty Ltd v Colonial Range Pty Ltd (Orders) - [2015] VSC 564

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

TECHNOLOGY ENGINEERING AND CONSTRUCTION LIST

S CI 2014 03891

CES QUEEN (VIC) PTY LTD (ACN 153 232 663)	Plaintiff
v
BRYAN THOMAS and STEPHEN KIP (sitting as the Building Appeals Board)	First Defendant
And
COLONIAL RANGE PTY LTD (ACN 070 855 220)	Second Defendant

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JUDGE:	VICKERY J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 OCTOBER 2015
DATE OF JUDGMENT:	14 OCTOBER 2015
CASE MAY BE CITED AS:	CES QUEEN (VIC) PTY LTD v COLONIAL RANGE PTY LTD (ORDERS)
MEDIUM NEUTRAL CITATION:	[2015] VSC 564

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BUILDING – Effect of uncertain determination by Building Appeals Board – Appeal to Building Appeals Board from determination of relevant building surveyor in relation to protection works arising from proposed demolition works – Uncertainty as a ground of jurisdictional error considered - Building Appeals Board in making an uncertain determination failed to exercise its statutory function – Jurisdictional error found - Declaration that uncertain determination invalid – Protection works appeal remitted to Building Appeals Board for re-hearing and determination - Building Act 1993 ss 1(c), 84, 85, 87, 88, 141 and 149.

ADMINISTRATIVE LAW - Effect of uncertain determination by Building Appeals Board – Appeal to Building Appeals Board from determination of relevant building surveyor in relation to protection works arising from proposed demolition works – Uncertainty as a ground of jurisdictional error considered - Building Appeals Board in making an uncertain determination failed to exercise its statutory function – Jurisdictional error found - Declaration that uncertain determination invalid – Protection works appeal remitted to Building Appeals Board for re-hearing and determination - Building Act 1993 ss 1(c), 84, 85, 87, 88, 141 and 149.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Roberts QC Mr L Connoly	Moray & Agnew
For the First Defendant	Ms C M Harris	Victorian Building Authority
For the Second Defendant	Mr P Solomon QC Mr N Wood	Hoeys Lawyers

HIS HONOUR:

Background

These reasons, and the consequent orders made, arise from the judgment of the Court in CES Queen (Vic) Pty Ltd v Thomas & Ors (No 2)[1] (the ‘Proceeding’) delivered on 1 April 2015. The background to this decision is set out below.
[1][2015] VSC 120.

On 13 March 2015 I stated a further question for hearing on 16 March 2015 and determination pursuant to Rule 47.04 of the Supreme Court (General Civil Procedure) Rules (2005) (the ‘Rules’). The question set down for determination by the Court on this occasion was:

What is the effect of the determination of the Building Appeals Board (the ‘Board’) dated 30 June 2014, as amended on 18 July 2014 (reference number 446544) (the ‘Board’s Determination’)?

The background facts giving rise to the statement of this question are set out in earlier decisions.[2] By way of summary:

(a) The Plaintiff, CES Queen (Vic) Pty Ltd (‘CES Queen’) is the owner of a property situated at 150 Queen Street, Melbourne (‘CES Queen’s Land’); a planning…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] VSC 564
Decision Date: 14 OCTOBER 2015

CaseChat Overview and Summary

CES Queen (Vic) Pty Ltd sought judicial review of a determination by the Building Appeals Board, which had considered an appeal from a relevant building surveyor's decision regarding protection works necessitated by proposed demolition. The applicants contended that the Board's determination was uncertain, constituting a jurisdictional error, and thus invalid. The dispute reached the Court, which was tasked with examining whether the Building Appeals Board had indeed erred in its determination and, if so, what remedy was appropriate.

The central issue before the Court was whether the Building Appeals Board's determination was so uncertain that it amounted to a jurisdictional error. Specifically, the Court had to consider whether the Board had failed to exercise its statutory function by making a determination that was not clear or ascertainable. The applicants argued that the Board's decision was not a genuine exercise of the statutory power, as it left critical questions unresolved. This necessitated an examination of the statutory framework under the Building Act 1993, which outlines the Board's functions and powers, particularly in relation to appeals and the making of determinations.

The Court found that the Building Appeals Board had indeed made an uncertain determination, which constituted a jurisdictional error. The Board's decision failed to provide a clear and ascertainable outcome, thereby not fulfilling its statutory obligations. As a result, the Court held that the determination was invalid and remitted the matter to the Board for a re-hearing and a fresh determination. This decision was grounded in the principle that a statutory body must exercise its powers in a manner that is certain and capable of being understood, and that uncertainty can render a determination ineffective.

In light of the findings, the Court issued a declaration that the Building Appeals Board's determination was invalid due to jurisdictional error. The Court ordered that the appeal regarding the protection works be remitted to the Building Appeals Board for re-hearing and a new determination. The Court emphasised the importance of clear and ascertainable decisions in administrative law, ensuring that statutory bodies adhere to their legislative mandates.

Orders