| 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…
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- Case
- [2015] VSC 564
- Decision Date
CaseChat Overview and Summary
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
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Background
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Evidence
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Decision
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