Geocon Constructors (ACT) Pty Ltd ACN 163 299 769 v Construction Occupations Registrar (Administrative Review)
[2025] ACAT 41
•25 February 2025
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
GEOCON CONSTRUCTORS (ACT) PTY LTD ACN 163 299 769 v CONSTRUCTION OCCUPATIONS REGISTRAR (Administrative Review) [2025] ACAT 41
AT 108/2024
Catchwords: ADMINSTRATIVE REVIEW – interlocutory application for access orders and other procedural directions in connection with an application for a merits review of a decision by the registrar to make a rectification order – where rectification order was made at a time when the complainant owners corporation had commenced a proceeding against the applicant in the ACT Supreme Court claiming damages for defective work, which was ongoing –– where the applicant claimed it was denied access to the premises by the owners corporation to enable it to respond to the notice of intention to make a rectification order – consideration of an owners corporation’s power to compel a unit owner to give access for inspection – where the applicant claimed it was denied procedural fairness in the making of the registrar’s decision because the registrar refused to further extend time for the applicant to obtain expert reports – whether alleged denial of procedural fairness in the making of a decision is relevant to a merits review of the decision considered – whether the registrar should be ordered to provide particulars comprising a comprehensive list of defects the subject of the rectification order – whether agreed access orders should be made – consideration of the issue the Tribunal must decide – consideration of the proposed scope and timing of the applicant’s expert evidence.
Legislation cited: ACT Civil and Administrative Tribunal Act 2008, s 7
Building Act 2004, s 6
Construction Occupations (Licensing) Act 2006, s 38(1)
Legislation Act 2001, ss 47(5) and 47(6)
Unit Titles (Management) Act 2011, ss 24, 28, 31
Subordinate
Legislation cited: Building (General) Regulation 2008 (R 31) s 45; schedule 3, s 3.1
Tribunal:Temporary Presidential Member M. Orlov
Date of Orders: 25 February 2025
Date of Reasons for Decision: 25 February 2025
Date of Publication: 16 June 2025
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 108/2024
BETWEEN:
GEOCON CONSTRUCTORS (ACT) PTY LTD (ACN 163 299 769)
Applicant
AND:
CONSTRUCTION OCCUPATION REGISTRAR
Respondent
AND:
THE OWNERS – UNITS PLAN NO 4421
Party Joined
TRIBUNAL:Temporary Presidential Member M. Orlov
DATE:25 February 2025
ORDER
The Tribunal orders that:
The rectification order dated 9 September 2024 is stayed until further order.
The party joined is to make all necessary arrangements for the applicant’s nominated experts to have unrestricted access to all parts of the common property mentioned in items 123 to 133 of the schedule to the applicant’s application for interim or other orders dated 13 February 2025 (the Schedule) on 5, 6 and 7 March 2025 and, if required, on each day between 13 and 19 March 2025, including those days and the weekend, for the purpose of determining whether the defects identified in schedule 3 of the rectification order exist.
The party joined is to make all necessary arrangements for the applicant’s nominated experts to have access to the relevant parts of the residential units mentioned in items 1 to 122 of the Schedule on stated days between 13 and 19 March 2025, for the purpose of determining whether the defects identified in schedule 3 of the rectification order exist.
By 16 April 2025, the applicant must file and serve on each other party:
(a)all lay, expert and documentary evidence on which it intends to rely at the hearing;
(b)a written submission setting out what it says is the correct or preferable decision on the facts of the case and the reasons why that would be the correct or preferable decision.
The application is listed for directions on Tuesday, 29 April 2025 at 9:30 am.
The parties have liberty to apply on 24 hours’ notice in writing, except in the week commencing Monday, 21 April 2025.
………….………………………………..
Temporary Presidential Member M. Orlov
REASONS FOR DECISION
By an application for interim or other orders filed on 13 February 2025, the applicant seeks orders for the party joined to provide or facilitate access to 122 individually owned units and 11 areas that are common property. The application is supported by an affidavit of Geoffrey Shaw, dated 13 February 2025. The applicant also relies on written submissions prepared by Mr Buckland of counsel, dated 13 February 2025.
The applicant submits that the tribunal should make access orders in the form sought in the application and that, in the absence of such orders, the applicant will be denied procedural fairness as it will be unable to respond to all of the allegations made against it by the respondent. The applicant submits that it is evident from the rectification order that the defects require expert evidence to establish their existence and that the respondent relied upon expert investigations to satisfy itself as to the existence and extent of defects in the premises. Further, the applicant submits that the chronology in Mr Shaw’s affidavit makes it clear that the applicant was not able to put forward a substantive response to the notice of intention to make a rectification order (NOI) before the respondent made the order. Finally, the applicant submits that “these proceedings are, in effect, the first time that the applicant will be able to put forward a complete case in response to the matters which are the subject of the rectification order”.
I heard the application on 20 February 2025. Other issues traversed at the hearing included directions for the preparation of the applicant’s lay and expert evidence, the filing and service by the respondent of a comprehensive list of defects the subject of the rectification order, the procedures to be followed for the applicant’s requirements for access to be notified to the party joined and for the party joined to arrange for access to be given and whether the stay of the rectification order should continue.
After adjourning the hearing at the parties’ request, I was provided with draft consent orders. In summary, these provided for:
(a) the stay of the rectification order to continue until further order;
(b) the applicant to give the party joined by 26 February 2025, three weeks’ notice of any inspection;
(c) the party joined to provide access notices to unit owners two weeks before the date of inspection previously notified by the applicant;
(d) the party joined to provide the applicant with a finalised schedule of inspection one week before the date of the relevant inspection;
(e) the respondent to file and serve a comprehensive list of defects the subject of the rectification order by 7 March 2025;
(f) if following the service of the list of defects, the applicant requires access to additional parts of the complex, the applicant is to give the party joined by 12 March 2025, three weeks’ notice of any further inspection. The earlier mentioned process for arranging access is then repeated;
(g) lastly, the applicant to file and serve any lay and expert evidence by 30 May 2025 and for any expert evidence to cover the following issues:
(i)whether or not a construction service has been provided other than in accordance with the Constructions Occupations (Licensing) Act 2004 (COLA) or an operational act, including the National Construction Code (NCC) and any applicable standard;
(ii)what work, if any, would be required to rectify the work done as part of the construction service to achieve compliance with the abovementioned requirement; and
(iii)matters addressing whether a rectification order ought to be made in respect of each defect.
The parties made extensive submissions on the question whether the stay should be continued until further order or lifted only in respect to the preparation of a program of works in accordance with paragraph 2 of section 2 of the rectification order.
I am persuaded that the stay should be continued until further order. However, I am not persuaded that orders should be made in accordance with the agreed position adopted by the parties. These reasons explain why and the rationale for the orders I propose to make instead.
The rectification order
The rectification order relates to five categories of alleged defective building work. For convenience of reference, the defect categories and sub-categories set out in schedule 3 of the order are reproduced below.
Alleged non-compliant building work
Areas affected
Defect 1 – Glass balustrades
1a
Balustrades within residential units (considered to be a systemic issue)
Unit property
1b
Rooftop balustrades
Common property
Defect 2 – construction of the pool area
2a
Pool concourse
Common property
2b
Membrane, tiling and waterproofing defects
2c
Pool gate and pool safety barrier defects
2d
Pool stair handrails
Defect 3 – Membrane, tiling and water ingress
3a
Water ingress level four
Common property and unit property
3b
Residential units tiling and waterproofing
Unit property
3c
Common areas tiling and waterproofing
Common property
3d
Level 5 Common Area/Sky Park waterproofing membrane
Common property
3e
Tower A and B roof waterproofing membrane and water ingress
Common property
Defect 4 – Windows and doors
4a
Water leakage in residential units
Unit property
4b
Construction and installation of glazed units
Unit property
4c
Non-labelled glass in residential units and common areas
Common property and unit property
Defect 5 – Ventilation and HVAC systems
5a
Ventilation in residential units
Unit property
5b
Ventilation in common areas
Common property
In respect to each defect sub-category, schedule 3 of the rectification order:
(a) includes a description of the defect;
(b) specifies the provision of the Building Act 2004, NCC 2016 and, where relevant, Australian Standard that the respondent alleges the applicant breached in providing the relevant constructions service;
(c) lists the evidence on which the respondent considered in making the decision.
This comprises Attachments A to ZA to the rectification order.
Attachments E to O relate to defect 1. Access Canberra inspection reports comprising Attachments E to I were first given to the applicant in February 2020. Expert reports comprising Attachments J and L were first given to the applicant in October 2021. An expert report comprising Attachment M was first given to the applicant in September 2022. The other attachments (none of which are expert reports) were served with the notice of intention to make a rectification order (NOI) in May 2024.
Attachments M and P to U relate to defect 2. Expert reports comprising Attachments P, Q, S and T were first given to the applicant in October 2021. The expert report comprising Attachment M was first given to the applicant in September 2022. The expert reports comprising Attachments R and U were served with the NOI in May 2024. It is presently unclear whether Attachment R, which is a report by Advanced Structural Designs dated March 2021, was provided at an earlier time.
Attachments Q to S, U to X and Z relate to defect 3. Expert reports comprising Attachments Q to S, W and X were first given to the applicant in October 2021. The expert reports comprising Attachments R, U and V and the Access Canberra inspection report comprising Attachment Z were served with the NOI.
Attachment M relates to defect 4 and is an expert report first given to the applicant in September 2022.
Attachment ZA relates to defect 5 and is an expert report first served on the applicant with the NOI.
It is apparent that the applicant has been in possession of much of the evidence later relied upon by the respondent in making the decision under review for a considerable period of time before the NOI was issued in May 2024.
There is no evidence before me about the circumstances in which the material was provided to the applicant or what the applicant did with it. Nor is there any evidence about the dealings between the applicant and the party joined that preceded the party joined deciding to incur the expense of commissioning a series of expert reports covering the issues dated between January 2021 and October 2021. It is reasonable to infer from the fact that the party joined commenced proceedings against the applicant and other parties in the Supreme Court of the ACT in December 2023 claiming damages for the cost to rectify the defects, that the parties were in dispute for some time, the applicant was on notice of the grounds of dispute and any previous attempts at resolution had failed.
Alleged denial of access to enable the applicant to respond to the NOI
Based on the description of the defects in the rectification order, it would be expected that the presence of many of the defects would be obvious on inspection if they exist, particularly where common property is affected. Examples include:
(a) rooftop balustrades with loose brackets and fixings, missing bolts and loose, missing or rusting acorn nuts (defect category 1b);
(b) leakage, water ingress issues and corrosion issues identified in the pool concourse area (defect category 2a);
(c) tiling and waterproofing issues identified in the pool concourse area (defect category 2b);
(d) the pool gate failing to self-close in windy conditions (defect category 2c);
(e) water ingress identified on level 4 (defect category 3a);
(f) tiling and waterproofing issues identified in common areas, particularly de-bonded, drummy, loose and cracked floor tiles and water overflowing from the gym shower into the gym area (defect category 3c);
(g) waterproofing membrane issues identified in the level 5 common area/Sky Park (defect category 3d);
(h) waterproofing membrane and waterproofing systems issues identified on the roofs of Tower A and Tower B (defect category 3e); and
(i) non-labelled glazing in gym and conference room (part of defect category 4c).
As mentioned earlier, Mr Shaw’s affidavit fails to mention anything about the earlier dealings between the applicant and the party joined. It does not shed any light on why the applicant needed independent experts to identify whether defects (many of which are documented in photographs) exist, nor on the presumed lack of capacity of the applicant, by its employees and agents, to inspect and identify whether the defects exist at any earlier point in time before the respondent issued an NOI.
Correspondence exhibited to Mr Shaw’s affidavit shows the applicant retained experts some 2 months after being served with the NOI and that in the later part of July and the first half of August 2024 it made various requests to the party joined to provide or facilitate access to individually owned units and parts of the common property.
An obvious difficulty for the party joined in complying with requests for access to individual units is that s 28(1) of the Unit Titles (Management) Act 2011 (UTMA) provides that an owners corporation does not have a right to enter a unit in the units plan without the consent of the owner or occupier, except in accordance with the section. As I sit regularly in the ACAT’s unit titles list, I am aware that negotiating consent for an owners corporation to enter unit property is notoriously difficult and time-consuming to arrange, particularly in a large apartment complex where many of the units are likely to be rented. The statutory alternative is for an owners corporation to proceed under section 28(3) of the UTMA. If entry to a unit is required to inspect the common property, a person may do so on behalf of the owners corporation if the executive committee authorises the entry, and the person to enter, by resolution and gives the owner or occupier written notice that entry must be allowed on a stated day not less than seven days before the entry to which the notice relates. Where a unit owner or occupier has specified a postal address for service of notices the giving of timely notice can be problematic.
If valid notice is given and the owner or occupier refuses to allow entry, the only alternative is for the owners corporation to apply to the ACAT on an urgent basis for an order against the respondent unit owner or occupier allowing entry and, if necessary, for the owners corporation to engage a locksmith to gain entry and recover the cost from the unit owner under s 31 of the UTMA. In the past, the tribunal has approached the question of access in such circumstances on the basis that s 28(3) authorises entry for the purpose of inspecting ‘defined parts’ of the building the owners corporation is required to maintain under s 24 of the UTMA, whether or not they are part of the common property. Relevantly for present purposes, the ‘defined parts’ of the building in question include any part of a balcony on the building.
It appears from Mr Shaw’s affidavit that the timing of the applicant’s requests for access to units failed to consider the statutory constraints on the capacity of the party joined to make arrangements for access to residential units at short notice to suit the convenience of the applicant’s experts.
However, as I have mentioned earlier, many of the defects relate to common property where access should not have presented any difficulty. Mr Shaw’s affidavit shows that after some initial miscommunications, the strata manager informed the applicant by email on 2 August 2024 that the party joined was willing to facilitate access to common property areas on three business days’ notice on any weekday.
According to a letter written by the applicant’s in-house counsel, Mr Flint, to the respondent on 15 August 2024, by that date the applicant had completed its inspection of the rooftop (defect 1b), pool area (defect 2d) and the common area glazing in the gym and conference room (defect 4) and that inspections of other parts of the common property were scheduled on 21, 22 and 26 August 2024. Presumably, those dates were chosen to suit the convenience of the applicant’s experts. Mr Shaw’s evidence does not explain what happened in relation to those arrangements – in particular, whether the inspections went ahead and, if not, why not.
Why the applicant was unable or chose not to provide any response to the NOI in those circumstances, even if limited to responding to the existence of alleged defects in the common property, is not apparent from Mr Shaw’s affidavit.
Mr Shaw’s affidavit also does not explain the apparent failure of the applicant to take any steps to obtain access for its experts after it received notice of the respondent’s decision to make a rectification order in early September 2024, nor at any time since the commencement of this proceeding on 4 October 2024 before filing the present application on 13 February 2025 in response to orders I made on 22 January 2025.
The applicant’s grounds for merits review of the registrar’s decision
The application for review of a decision filed on 4 October 2024 sought orders that the decision to make a rectification order and the rectification order itself be set aside in their entirety on the grounds that the preconditions to making a rectification order under section 38(1) of the COLA were not satisfied. In the alternative, the decision under review should be set aside or varied in part “such that the rectification work required to be carried out by the applicant is reduced, the terms and scope of which is to be determined following consideration of evidence and submissions made by the applicant” on “such further or alternative grounds as the applicant may raise after undertaking further enquiries, obtaining expert evidence and legal advice”. In the further alternative, the decision and the rectification order be set aside and remitted to the respondent for reconsideration in accordance with any direction or recommendation of the tribunal “informed by the evidence and submissions made by the applicant”.
At a directions hearing on 18 November 2024, Presidential Member Lucy ordered the respondent to provide to the Tribunal, the applicant and the party joined, by midday on 13 December 2024, a document identifying with specificity each alleged defect and the provisions alleged to have been breached. The document was required to “identify with precision the unit or units and/or parts of the common areas in which the defect is said to have occurred”. As I understand it, the order was made at the applicant’s request and over the respondent’s objection. On 13 December 2024, Presidential Member Lucy extended the time for compliance to 17 January 2025 (order 3 of 13 December 2024).
The matter was then allocated to me for further case management and for hearing.
On 22 January 2025, I set aside order 3 of 13 December 2024 because I was not satisfied that it was necessary or appropriate to order particulars considering the grounds on which the applicant sought merits review of the decision and particularly where the evidentiary basis for the decision was clearly identified and had been given to the applicant. I ordered the applicant to file and serve a document, by 7 February 2025, setting out the order or orders the Tribunal should make, the grounds on which the Tribunal should make the orders, the grounds for disputing that any building work listed under the five defect categories and relevant subcategories in section 3 of the rectification order does not comply with the relevant provisions of the legislation, building code and Australian Standards referenced in the rectification order and the grounds, if any, on which it would not be appropriate for the Tribunal to make a rectification order if it finds that the pre-conditions for making a rectification order exist.
On 10 February 2025, the applicant filed a document titled ‘Orders Sought by the Applicant and Grounds” (Applicant’s Grounds).
One of the primary grounds on which the applicant says the decision under review should be set aside and remitted to the respondent for reconsideration is that it was denied procedural fairness by the respondent’s failure to further extend the time for the applicant to obtain reports from experts of its choosing to address the issues raised in the NOI.
Denial of procedural fairness may provide grounds for a court to make an order quashing an administrative decision in an application for judicial review of the decision but it is not a ground that is relevant to a merits review, where, as it is sometimes said, the tribunal ‘stands in the shoes of the decision maker’. If there was a denial of procedural fairness in the making of the decision under review, a merits review provides an affected party an opportunity to provide relevant evidence and submissions to the tribunal, so that the Tribunal’s decision is made on an appropriately informed basis.
A second primary ground on which the applicant says the decision under review should be set aside and remitted to the respondent for reconsideration is that the rectification order allegedly fails to identify with sufficient particularity and precision the alleged defects, their location and the provisions of the Building Act, NCC 2016 and/or Australian Standards that are said to have been contravened. There are no particulars of the alleged lack of particularity.
Additionally, the applicant contends that the rectification order requires the applicant to conduct further investigations into the extent of certain defects, when such investigations could and should have been carried out before the rectification order was made. The reasons for this are not stated. Presumably the applicant is referring to the single instance where the alleged balustrade defects are said to be indicative of a systemic issue.
Further, the applicant contends that “the significant ambiguity of the basis for the rectification order weighs against the merits of the rectification order being determined by the Tribunal due to the unfairness on (sic) the applicant arising from the case against it not being known”. No particulars of the alleged ambiguity or unfairness are provided.
In relation to applicant’s response to the specific defect categories and sub-categories, the following may be gleaned from the schedule to the Applicant’s Grounds.
Defect 1a – balcony balustrades within residential units
Based on inspections of balcony balustrades conducted on an unspecified date or dates by one of the applicant’s experts (Mr Davidson) of units 45, 77, 79, 126, 150, 185, 220, 237, 244, 254, 255, 318, 326, 381, 398, 414, 420 and 426 – i.e. 21 of 39 units listed in schedule 3 of the rectification order – the applicant denies that defect 1a exists in any of the balconies of those units and in units 44, 57 and 73 (which have the same balcony design as units 45, 57 and 73) for stated reasons.
Mr Davidson needs to inspect the balconies of the remaining units (94, 216, 218, 224, 234, 260, 265, 266, 282, 305, 311, 316, 319, 322, 323, 333, 340, 412 and 423) to determine whether the alleged defects exists.
Further, the applicant says that “multiple units” where a metal bar installed to reduce the gap between the barrier and the balcony slab has not been adequately fixed to the structure (as mentioned in the second bullet point on page 6 of the rectification order) have not been identified. This is true.
Defect 1b – rooftop balustrades
The applicant does not expressly dispute that the defects exist.
Defect 2a – pool concourse
The applicant denies that it provided a construction service in relation to the pool on the basis that the Certificate of Occupancy and Use dated 22 February 2018 (at page 65 of the T-docs) identifies the builder as someone other than the applicant. Presumably, the applicant intends to prove that it neither did the work, nor supervised the doing of the work involved in the construction of the pool.
This is an important threshold issue and invites consideration whether it is preferable to decide it as a separate question ahead of any other issues.
The applicant accepts there is corrosion of steel bolts, steel angles and Kingflor panels beneath the pool concourse slab, some water ingress and corrosion of steel spa features elements and that steel reinforcement in the access door below the pool and in the core drilled vents is exposed and visible.
The applicant requires access for its experts to the pool concourse and surrounding areas to undertake inspections and undertake water testing to determine the source of any water ingress onto the level 5 slab, verify whether water is entering any habitable space below the level 5 slab and assess the claim that rainwater accumulating on the pool concourse drains back into the pool and is not serviced by an adequate stormwater system.
Defect 2b – membrane, tiling and waterproofing defects
The applicant does not expressly dispute that the defects exist.
Defect 2c – pool gate and pool safety barrier defects
The applicant does not expressly dispute that the defect exists but says it intends to brief an expert to examine the issue. Why the applicant needs an expert to tell it whether the pool gate is not self-closing in windy conditions is not immediately apparent.
Defect 2d – pool stair and handrails
The applicant denies that it provided a construction service in relation to this work on the same grounds stated in its response to defect 2a – namely, another entity was the builder.
Defect 3a –water ingress level 4
The applicant accepts there is water ingress to the level 4 corridor.
Defects 3b, 3c, 3d and 3e – tiling and waterproofing to residential units and common areas, including level 5 common area/Sky Park and Tower A and B roof
The applicant accepts there is water ingress to units 65, 70, 219 and 425 and is willing to do work to address the issue.
The applicant requires access for its experts to determine whether the other defects exist.
Defect 4a – water ingress via windows in residential units
Based on an inspection of units 12, 150, 185, 220, 255, 381 and 426 by Mr Davidson on an unspecified date or dates, where he was unable to observe any direct evidence of water ingress and where the applicant contends condensation arising from ordinary habitation is an equally plausible reason for the presence of mould and water marks on or near the windows and verbal reports of water ingress by occupants of the units, the applicant contends that the existence of the defect is not proved.
Mr Davidson requires access to units 9, 29 and 57 to ascertain whether the identified defect exists.
Defect 4b – construction and installation of glazed units
Based on an inspection of units 12, 79, 150, 185, 220, 381, 414 and 420 by Mr Davidson on an unspecified date or dates, the applicant admits the existence of incorrectly installed window seals in units 381 and 420 and moisture between specified glazed panels in units 220 and 414 and denies the existence of any alleged glazing defects in units 12, 79, 150, 185 and 220.
Mr Davidson requires access to units 9, 44, 73, 224, 266, 319, and 426 to determine whether any of the alleged defects exist in those units.
Defect 4c – non-labelled glass
Based on an inspection of the glazed doors leading into the gym and conference room by Mr Davidson on an unspecified date or dates, the applicant denies the alleged defect exists in that area.
Mr Davidson requires access to units 44, 224, 426 and the glazed wall separating the gym and conference room to determine whether the alleged defect exists in those areas.
Defect 5a – ventilation in residential units
The applicant appears to admit that the defects exist and is willing to undertake works to address the defects.
Defect 5b – ventilation in common areas
The applicant contends that the evidence on which the respondent relied does not provide a proper basis for making the rectification order.
Reasons given for identified access requirements
The schedule identifies the units where the applicant’s expert, Mr Davidson, has not previously obtained access to enable him to determine whether the alleged defect or defects exist. The schedule also identifies the common areas where the applicant’s experts require access to determine whether the alleged defects exist.
These requirements are clearly legitimate and concern issues I am required to decide.
However, the applicant claims it also requires access to units and parts of the common property to enable it to determine the scope of works that may be required to address any defects and to make submissions to the Tribunal about the appropriate scope of works, including whether they should be specifically prescribed in the rectification order (in circumstances where the rectification order is not prescriptive in relation to the scope of works required to make allegedly non-compliant building work compliant).
I consider this later when I discuss the scope of the expert evidence on which the applicant proposes to rely.
Should the respondent be ordered to provide a “comprehensive list of defects the subject of the rectification order”?
I remain unpersuaded that there is any justification for an order in the terms agreed by the parties – namely, that the respondent is to file and serve a comprehensive list of defects the subject of the rectification order – whether by 7 March 2025 or any other date.
Counsel for the applicant did not mention in oral submissions any reason why the order was necessary to address any perceived “unfairness (to) the applicant arising from the case against it not being known”, as asserted in the Applicant’s Grounds.
Counsel for the respondent was unable to identify for me which specific defect sub-categories required further amplification or particularisation but informed me that the intention is to confine the list to matters that are “within the scope” of the existing expert reports on which the rectification order is based.
It is apparent from the responses contained in the schedule to the Applicant’s Grounds that the applicant understands the allegations made against it and is well aware of the case it has to meet. While the inability to gain access to some parts of the complex may have precluded the applicant’s experts from expressing an opinion whether the defects identified in particular units or parts of the common property exist, this does not mean the applicant is not aware of the case it has to meet. Indeed, as appears from the schedule to the Applicant’s Grounds, the applicant’s stated reasons for requiring access make it pellucidly clear that the applicant has a firm grasp not only of what the case is about but also how the applicant wishes to conduct its case before the Tribunal.
The respondent may consider the applicant and the Tribunal will be assisted by having the specific location of some defects listed in schedule 3 of the rectification order better identified. That is a matter for the respondent. It does not require an order from the Tribunal, particularly where the order appears to be premised on the applicant being disadvantaged by not knowing the case against it – a premise that has not been demonstrated to my satisfaction. Moreover, if the rectification order fails to identify the location of the defects with sufficient particularity, as the applicant contends, it is open to the applicant to argue that the existence of the defect has not been established, particularly if it is the case that the respondent relied exclusively on expert reports without conducting its own inspection of any part of the premises.
The respondent may consider, in light of the applicant’s specific responses in the schedule to the Applicant’s Grounds, that schedule 3 of the rectification order contains some errors and/or omissions that require correction or amendment. It is open to the respondent to file and serve a document identifying the specific respects in which the respondent intends to submit at the hearing that the Tribunal should vary the terms and/or scope of any rectification order the Tribunal may be persuaded to make. I have already mentioned some respects in which the conditions imposed by the rectification order appear to me to lack power – specifically, those mentioned in subparagraphs 16(f) and (g) on page 4.
If and when the respondent files and serves such a document and seeks leave to rely on it, the question whether any proposed changes are “within the scope” of the controversy that gave rise to the decision under review will need to be considered by the other parties and the Tribunal. Any discretionary considerations, such as delay to the hearing and any other potentially adverse impacts on the parties, would need to be considered at the same time.
Should the agreed access orders be made?
The application for interim or other orders includes a schedule listing the units and parts of the common property to which the applicant requires access for inspection by identified experts to enable them to determine whether the alleged defects exist.
I am satisfied that an access order should be made. I am not satisfied that the procedure for arranging access reflected in the proposed consent orders is appropriate. I consider it is likely to be productive of delay and unnecessary inconvenience and cost to the parties and is inconsistent with the tribunal principles in section 7 of the ACT Civil and Administrative Tribunal Act 2008.
The applicant’s experts are available to conduct inspections on 3, 5, 6, and 7 March and between 13 and 19 March, including on the weekend. Presumably, they are also able to work on preparing their evidence on those days.
I propose to order the party-joined to make arrangements for the applicant’s nominated experts to have unrestricted access to those parts of the common property mentioned in items 123 to 133 of the schedule on 5, 6 and 7 March 2025 and, if required, between 13 and 19 March 2025.
Arranging access to the residential units will take more time and will require the party joined to comply with the requirements in section 28(3) and (4) of the UTMA. I propose to order the party-joined to take all necessary steps to arrange for the applicant’s nominated experts to have access to the residential units mentioned in items 1 to 122 of the schedule on stated days between 13 and 19 March 2025.
If the party joined encounters difficulties in obtaining compliance with a valid notice given under section 28(3)(b), it should file a unit titles application in the ACAT seeking appropriate orders against the relevant unit owner or occupier, with a request that the application be brought to my attention immediately and listed for hearing on an urgent basis.
At this stage, it is not necessary to decide what should happen if the party-joined is unable to arrange access to any particular unit in accordance with the proposed orders.
The issues the Tribunal is required to decide
Before I discuss the proposed scope and timing of the applicant’s lay and expert evidence, it is appropriate to set out what I consider to be the issues the Tribunal has to decide. They are:
(a) first, whether the applicant provided the construction service, or part of the construction service – relevantly, the doing or supervising of ‘building work’ within the meaning of section 6 of the Building Act 2004 – to which each sub-category of defects listed in schedule 3 of the rectification order relates;
(b) second, whether the construction service, or part of the construction service, the applicant provided in relation to each sub-category of defects listed in schedule 3 of the rectification order was provided otherwise than in accordance with the COLA or an operational Act – relevantly, the Building Act 2004;
(c) third, whether it is appropriate to make a rectification order considering:
(i)any injury, loss or damage caused, or that could have been caused, by the contravention (the first mandatory consideration);
(ii)how the proposed order may affect people affected by the contravention (the second mandatory consideration); and
(iii)anything else the Tribunal, standing in the shoes of the decision-maker, considers relevant;
(d) fourth, if the Tribunal decides to make a rectification order:
(i)what ‘stated action’ to rectify work done as part of a construction service should the applicant be required to take;
(ii)what written information should the applicant be required to give the registrar about a thing required to be done under the order; and
(iii)within what period should the applicant be required to do what the order requires it to do.
The Applicant’s Grounds raise the first issue only in relation to defects 2a and 2d. Whether the work in question was done as part of a construction service provided by the applicant is a question of fact that is likely to turn on lay and documentary evidence.
The second issue requires the Tribunal to be satisfied that the relevant defect exists. The existence of a ‘defect’ may be established by evidence that the work does not comply in one or more respects with a provision of the Building ACT, NCC 2016 and/or applicable Australian Standard. It may also be established by reference to the tolerances guide as in force from time to time.[1] Most of the defects listed in schedule 3 of the rectification order appear to be of a kind where their presence or absence should be readily observable. According to the Applicant’s Grounds, the existence of some defects is admitted and others denied. The applicant’s position in relation to the remainder will become apparent once the experts complete their inspections.
[1] Building (General) Regulation 2008 (R 31) section 45; schedule 3, section 3.1. Pursuant to Legislation Act 2001 ss 47(5) and 47(6) the relevant tolerances guide is the Guide to Standards and Tolerances 2015
The third issue requires two mandatory considerations to be addressed. The first, relating to injury, loss or damage caused, or likely to be caused, by the contravention, may require the Tribunal to consider evidence about any reduction in safety, reliability, durability, soundness, functionality, accessibility, serviceability, service life, usability, usefulness, amenity, aesthetic quality, value or efficiency of the thing affected by the contravention and any adverse effect on the health of a user of the thing affected by the contravention. Where the applicant has admitted that a defect exists, the Applicant’s Grounds do not claim that the contravention has not caused, or is not likely to cause, any injury, loss or damage so as to make it unnecessary to undertake work to rectify the contravention. That may change once the experts complete their inspections.
Also relevant to the third issue, is that the Applicant’s Grounds state that the commencement of proceedings in the Supreme Court claiming damages and potential difficulties that may be caused by the same or similar issues being litigated in two places is a reason to decide not to make the rectification order.
The applicant’s primary position, as appears from the Applicant’s Grounds, is that the decision to make a rectification order should be set aside and the matter remitted to the registrar for reconsideration. The applicant’s alternative position is that the rectification order should be varied in stated respects, including by extending the time within which the applicant should be required to develop the Program of Works setting out the scope of works and limiting the level of detailed information to be provided with the Program of Work. The reasons given for the latter include that the rectification order does not need to be prescriptive in relation to matters provided for by legislation and it is not desirable that it do so. Further, the imposition of requirements on building work that are more onerous than the statutory requirements for carrying out ‘building work’ with the meaning of the Building Act is impermissible and ultra vires.
This feeds into the fourth issue, which concerns the extent to which it may be considered necessary or appropriate for the rectification order to be prescriptive in relation to the ‘stated action’ to rectify any defects found to exist. The example given under section 38(1) of the COLA makes it clear that it is sufficient for a rectification order to require that rectified work must comply with a stated performance requirement without the need to prescribe how that outcome should be achieved. The rectification order identifies the requirements of the Building Act, NCC 2016 and, in some cases, relevant Australian Standards with which the building work done in respect to each defect sub-category does not comply. If there is a genuine dispute about the applicable performance standards with which any rectified work must comply, the Tribunal is open to receiving evidence and submissions that assist in resolving the issue.
The proposed scope and timing of the applicant’s expert evidence
The agreed position of the parties reflected in the proposed consent orders is that the applicant should have until 30 May 2025 to file and serve its lay and expert evidence and that the expert evidence is to address stated matters in relation to each defect the subject of the report, including what work, if any, would be required to make non-compliant building work comply with relevant requirements of the Building Act, NCC and relevant Australian Standards.
In essence, this provides for the applicant to prepare expert evidence in relation to matters presently the subject of paragraph 2 of the rectification order conditions (section 2) which require the applicant to prepare and serve a scope of works setting out the full scope of works for rectifying the defects identified in section 3 of the rectification order. The order, which is presently stayed, requires the applicant to prepare the program of works within 2 months of the date of the order.
Paragraph 1.4(a) of the Applicant’s Grounds states that the timeframe for the applicant to prepare and serve the program of works should be extended to allow 3 months from the date the applicant has accessed all parts of the complex specified in section 3 of the order (as amended) or such further time as the registrar may allow. The extended timeframe is said to be necessary because the development of the program of works can commence only once inspections are complete.
This may explain why the applicant says it needs until the end of May to prepare its evidence.
Paragraph 1.6 of the Applicant’s Grounds states that “if a rectification order is made, the applicant may submit that it is appropriate for the rectification order to prescribe, in respect of a given alleged contravention…a specific scope of works”. The applicant does not presently contend that it is appropriate to do so in respect of any particular defect sub-category. Inevitably, if the issue were to be raised, the timeframe for the hearing would blow out significantly and any potential forensic disadvantage associated with the conduct of parallel proceedings in the ACAT and the Supreme Court involving the same experts would be magnified.
As matters stand, the Applicant’s Grounds do not require the Tribunal to decide the issue. In those circumstances, I am not persuaded that evidence going to the scope of the proposed rectification works is relevant to the issues I am required to decide, nor that it is appropriate to set a timetable that accommodates the preparation of such evidence.
I propose to allow the applicant until 16 April 2025 to file and serve all of the material on which it intends to rely.
In the meantime, the parties should consider what steps are required to enable the final hearing to take place in late May or early June 2025. I will list the application for directions on Tuesday, 29 April 2025 at 9:30 am for that purpose.
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Temporary Presidential Member M Orlov
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