Eunomia Developments Pty Ltd v Secretary of the Department of Customer Service

[2021] NSWLEC 1279

Land and Environment Court

New South Wales

Medium Neutral Citation:

Eunomia Developments Pty Ltd v Secretary of the Department of Customer Service [2021] NSWLEC 1279

Hearing dates:

19 May 2021

Date of orders:

19 May 2021

Decision date:

20 May 2021

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) The Building Rectification Order dated 26 February 2021 is substituted for the Order set out in Annexure A.

(3) Liberty to apply to the Court is granted to either party on giving 3 days’ notice.

Catchwords:

APPEAL – rectification order – conciliation conference – agreement reached – order substituted

Legislation Cited:

Land and Environment Court Act 1979, ss 34, 39

Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020, ss 33, 49

Cases Cited:

Phillips v Walsh (1990) 20 NSWLR 206

Category:

Principal judgment

Parties:

Eunomia Developments Pty Ltd (Applicant)
Secretary of the Department of Customer Service (Respondent)

Representation:

Counsel:
A Pickles SC (Applicant)
T Liu (Respondent)

Solicitors:
Mills Oakley (Applicant)
Department of Customer Service (Respondent)

File Number(s):

2021/87786

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings concern an appeal against a building work rectification order issued on 26 February 2021 (“the order”) pursuant to the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 (“RAB Act”). The final orders on this appeal, outlined in [10] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The order requires rectification works that primarily address waterproofing issues at a residential apartment building at 2 Mitchell Road, Alexandria. The order was issued by the respondent pursuant to s 33 of the RAB Act, and the appeal by the applicant is lodged pursuant to s 49(1) of the RAB Act.

3. On appeal, the Court has all the functions and discretions of the respondent, whose decision is the subject of the appeal (see s 39 of the Land and Environment Court Act 1979 (“LEC Act”)). In addition, s 49 of the RAB Act sets out the powers of the Court on an appeal against a building work rectification order as follows:

(3) On hearing an appeal, the Court may—

(a) revoke the building work rectification order, or

(b) modify the building work rectification order, or

(c) substitute for the building work rectification order any other order that the Secretary could have given, or

(d) find that the building work rectification order is sufficiently complied with, or

(e) make any order with respect to compliance with the building work rectification order as the Court thinks fit, or

(f) make any other order with respect to the building work rectification order as the Court thinks fit.

4. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 19 May 2021. I presided over the conciliation conference.

5. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The decision agreed upon involves substituting the order with a modified order that refines the scope of rectification works required for bathrooms within the individual apartments in the building.

Whether the proceedings can be disposed of in accordance with the agreement

6. As the presiding Commissioner, I am satisfied that the decision agreed upon by the parties and set out in their signed agreement is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). The parties’ decision involves the Court exercising the function under s 49(3)(c) of the RAB Act to “substitute for the building work rectification order any other order that the Secretary could have given.”

7. I also consider that the grant of liberty to apply is appropriate in circumstances where compliance with the substituted order could be hindered if there are any issues that arise, such as with the selection of an independent auditor, with the supply of stone materials (for the bathrooms) from Europe, or with obtaining the consent of the individual strata title owners for the carrying out of works in their apartments. As outlined by McLelland J in Phillips v Walsh (1990) 20 NSWLR 206 at 210, “In a final order, liberty to apply is often expressly reserved as authority to make a subsequent application for the purpose of dealing with a matter involved in or arising in the course of working out the order.” The exercise of liberty to apply requires notice to be given to the other party, usually in the form of a Notice of Motion.

The requirement to dispose of the proceedings

8. Having reached the state of satisfaction that the decision agreed upon in the proceedings is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act compels me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

9. In making the orders to give effect to the agreement between the parties in the appeal, I was not required to make, and have not made, a determination on any arguments raised by the parties in documents filed in the appeal or on any discretionary matters that those arguments may raise.

10. The Court orders that:

1. The appeal is upheld.

2. The Building Rectification Order dated 26 February 2021 is substituted for the Order set out in Annexure A.

3. Liberty to apply to the Court is granted to either party on giving 3 days’ notice.

……………………….

J Gray

Commissioner of the Court

Annexure A (122872, pdf)

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