CES Queen (Vic) Pty Ltd v Thomas - [2014] VSC 602

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. S CI 03891 of 2014

CES QUEEN (VIC) PTY LTD	Plaintiff
v
BRYAN THOMAS and STEPHEN KIP (sitting as the Building Appeals Board) and	First Defendant
COLONIAL RANGE PTY LTD	Second Defendant

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JUDGE:	VICKERY J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 October 2014
DATE OF JUDGMENT:	3 December 2014
CASE MAY BE CITED AS:	CES Queen (Vic) Pty Ltd v Thomas & Ors
MEDIUM NEUTRAL CITATION:	[2014] VSC 602	1^st revision: 25 March 2015

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ADMINISTRATIVE LAW – Judicial review of determination of an appeal by the Building Appeals Board under the Building Act 1993 (Vic)– Whether the Board empowered to determine a collateral challenge to the appointment of the original decision maker – Director of Housing v Sudi (2011) 33 VR 559 considered – Principles in Sudi applied, however legislative scheme distinguished – Board empowered under the Act to determine collateral issue – Legal effect of original decision maker when appointment as a private building surveyor under the Act invalid – Whether Board empowered to substitute its own decision.

BUILDING - Scheme of the appeal provisions relating to the Building Appeals Board under the Building Act 1993 (Vic) considered - Judicial review of determination of an appeal by the Building Appeals Board under the Building Act 1993 (Vic)– Whether the Board empowered to determine a collateral challenge to the appointment of the original decision maker – Director of Housing v Sudi (2011) 33 VR 559 considered – Principles in Sudi applied - Legislative scheme distinguished – Board empowered under the Act to determine collateral issue – Legal effect of original decision maker when appointment as a private building surveyor under the Act invalid – Whether Board empowered to substitute its own decision.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr PRD Gray QC with Ms EA Bennett	Maddocks
For the First Defendant	Ms C Harris	General Counsel, Victorian Building Authority
For the Second Defendant	Mr J Pizer QC with Mr JM Forrest	Hoeys Lawyers

HIS HONOUR:

Background

The Plaintiff and Applicant in this matter, CES Queen (Vic) Pty Ltd (‘CES Queen’) is the registered proprietor of a property situated at 150 Queen Street, Melbourne (‘CES Queen’s Land’). CES Queen plans to replace the existing building on its site with a large 71 storey residential tower to be known as ‘Tower Melbourne’. A planning permit has been issued for this purpose. Demolition of the present building situated on its land is necessary to make way for its proposed development.

Colonial Range Pty Ltd (‘Colonial’), the Second Defendant and Respondent in this matter, owns the property next door. This property comprises 140 Queen Street, Melbourne and another adjoining parcel of land situated at 21-27 McKillop Street (together ‘Colonial’s Land’). A planning permit has been issued to build a hotel and retail premises on these sites.

Colonial is concerned that demolishing the building on CES Queen’s Land may cause physical damage to the buildings…

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: [2014] VSC 602
Decision Date: 3 December 2014

CaseChat Overview and Summary

CES Queen (Vic) Pty Ltd sought judicial review of a decision made by the Building Appeals Board in relation to an appeal under the Building Act 1993 (Vic). The central issue in the case was whether the Board had the authority to address a collateral challenge to the appointment of the original decision maker. This matter came before the court to determine the extent of the Board’s powers under the Act, particularly in relation to the legal validity of decisions made by an individual whose appointment as a private building surveyor was subsequently found to be invalid.

The court examined the legislative framework governing the Building Appeals Board and the principles established in Director of Housing v Sudi. While the principles in Sudi were acknowledged, the court found that the specific provisions of the Building Act distinguished this case. The court concluded that the Board was empowered to determine the collateral issue regarding the appointment of the original decision maker. Furthermore, the court addressed the legal consequences of the invalid appointment and whether the Board could substitute its own decision in light of these findings.

Ultimately, the court found that the Board had the authority to review the collateral issue and determine the validity of the original decision maker's appointment. The court upheld the Board’s decision on the basis that it was empowered to address such collateral challenges under the Act. The invalidity of the original decision maker’s appointment was found to have legal ramifications that the Board was entitled to consider.

The court's final order was to affirm the decision of the Building Appeals Board, emphasising the Board's authority to address collateral issues and the importance of ensuring the validity of decision makers within the legislative framework.

Orders