Jolley v Construction Occupations Registrar
[2025] ACAT 40
•1 December 2023
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
JOLLEY v CONSTRUCTION OCCUPATIONS REGISTRAR & ANOR No.4 (Administrative Review) [2025] ACAT 40
AT 21/2021
Catchwords: ADMINSTRATIVE REVIEW – where Tribunal found that the correct or preferable decision was to make a rectification order – where the parties could not agree the content of rectification order – where the statutory requirements for the doing and supervision of building work provided by the Construction Occupations (Licensing) Act 2008 and the Building Act 2008 apply to work carried out under a rectification order in the same way as they apply to any building work – where the registrar lacked power to order the entity against whom a rectification order is made to pay for alternative accommodation and/or parking arrangements and the cost of relocation for owners who may be denied access to their unit and/or parking space during the performance of the building work – rectification order made – application for costs order in favour of party-joined refused
Legislation cited: ACT Civil and Administrative Tribunal Act 2008, s 48
Building Act 2008 s 6, part 4
Construction Occupations (Licensing) Act 2006
Cases cited:CIC Australia Ltd v ACT Planning and Land Authority [2013] ACTSC 96
Jolley v Construction Occupations Registrar [2023] ACAT 65
Tribunal:Senior Member M. Orlov
Senior Member Prof T. Foley
Date of Orders: 1 December 2023
Date of Reasons for Decision: 1 December 2023
Date of Publication: 16 June 2025
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 21/2021
BETWEEN:
ANDREW JOLLEY
ApplicantAND:
CONSTRUCTION OCCUPATIONS REGISTRAR
RespondentAND:
THE OWNERS – UNITS PLAN NO 3941
Party Joined
TRIBUNAL:Senior Member M. Orlov (presiding)
Senior Member Prof T. Foley
DATE:1 December 2023
ORDER
1.The application by the party joined for an order that the applicant pay the costs of the party joined is dismissed.
2.The applicant must take the action stated in the attached rectification order to rectify building works the applicant supervised as nominee of Chase Building Group Pty Ltd (in Liquidation) in relation to a residential apartment building known as ‘Manhattan on the Park’ constructed by that entity on Block 1 Section 52 City, within the period stated in the order.
………………………………..
Senior Member M. Orlov
for and on behalf of the Tribunal
Premises to which the order applies
Block 1 Section 52 City (240 Bunda Street, Canberra ACT, ‘Manhattan on the Park’)
Lessee
The Owners – Units Plan No 3941 (in respect to the common property and as agent for the owners of individual units)
Issued to
Andrew Jolley
Construction Occupation
Builder (former)
Occupation Class
Class A (surrendered on 3 August 2023)
License Number
200428485 (surrendered on 3 August 2023)
Date of Order
1 December 2023
RECTIFICATION ORDER
The Tribunal makes this order pursuant to section 68(3) of the ACT Civil and Administrative Tribunal Act 2008 and section 38 of the Construction Occupations (Licensing) Act 2004.
1.You, Andrew Jolley, must take the action stated in the order to rectify building work you supervised as nominee of Chase Building Group Pty Ltd (in Liquidation) in relation to a residential apartment building known as ‘Manhattan on the Park’ constructed by that entity on Block 1 Section 52 City.
2.You must complete the stated action within a period ending 12 months from the date of the order, or such further period of time as the registrar may allow in writing.
3.Where you are not licenced, authorised or qualified to do a thing required to be done as part of or in connection with the stated action, you must arrange and pay for the thing to be done by someone who is licensed, authorised or qualified to do the thing.
4.You must facilitate the appointment by the lessee of an eligible entity as certifier for the building work at your cost.
Program of works
5.By 31 January 2024, or such further time as the registrar may allow in writing, you must provide to the registrar a program of works to be carried out in compliance with the order detailing what work will be done; where, how and when the work will be done; and who will do the work.
6.The program of works must:
(a)include sufficient information in relation to the scope of works, repair methodology and scheduling of works to satisfy the registrar that the building work, if done in accordance with the program of works will comply with the Building Act 2008, the building code and relevant Australian standards and be completed within the period specified in the order;
(b)specify the separation of works by trade, including a brief description and expected commencement and completion dates by each trade, represented by a Gantt chart or similar program diagram and show the critical path;
(c)include an estimate of access and storage requirements and the time or times of day and duration of work involving loud noise, vibration, or unpleasant odours.
Balcony waterproofing and tiling (Defect 2)
7.You are required to take the action stated in paragraphs 8 to 13 to rectify the installation of waterproofing and tiling to the balconies of the following units in contravention of section 42(1)(c) of the Building Act 2008:
(a)Level 3 – 324
(b)Level 4 – 401, 402, 403, 408, 409, 410, 413, 414, 415, 416, 421
(c)Level 5 – 501, 502, 504, 508, 509, 510, 511, 512, 513, 514, 515, 516, 517, 519, 523
(d)Level 6 – 601, 602, 604, 608, 609, 610, 611, 612, 613, 614, 615, 616, 621, 623
(e)Level 7 – 701, 703, 708, 709, 711, 712, 714, 715, 716, 717, 724
(f)Level 8 – 801, 802, 809, 810, 811, 813, 816, 817, 823
(g)Level 9 – 901, 902, 909, 910, 911, 912, 913, 914, 915, 916, 917
(h)Level 10 – 1002, 1003, 1009, 1010, 1011, 1012, 1013, 1014, 1015, 1016, 1017, 1024
(i)Level 11 – 1101, 1108, 1109, 1110, 1111, 1113, 1114, 1116, 1117,
(j)Level 12 – 1202, 1209, 1210, 1211, 1212, 1213, 1214, 1216, 1217
(k)Level 13 –1301, 1309, 1310, 1311, 1312, 1313, 1314, 1316, 1317, 1321, 1323, 1324
(l)Level 14 – 1408, 1409, 1410, 1413, 1414, 1415, 1416, 1417, 1421
(m)Level 15 – 1501, 1502, 1508, 1509, 1510, 1512, 1513, 1514, 1515, 1516, 1517, 1521, 1523, 1524
(n)Level 16 – 1601, 1602, 1603, 1605, 1606, 1607, 1608, 1609, 1610, 1611, 1612, 1614
8.Rectify the waterproofing and tiling of each balcony in accordance with Option 1 described by Messrs Joannides and Stephenson and detailed in Sketch 01 – Free Edge Balcony Repair and Sketch 02 – Movement Tile Joint Repair (and where applicable in accordance with Note 2) in exhibit PJ9, unless paragraph 10 applies.
9.Provide evidence to the registrar of compliance with the hold point at (4) of Option 1 and, if necessary, the hold points at (6) and (7), in the form of a certificate that records the date and time of inspection, the result of the inspection and whether approval is given to proceed in accordance with Option 1 –
(a)signed and dated by an authorised representative of the manufacturer or supplier of Bostik Dampfix Gold waterproofing membrane, or if this cannot be arranged, a suitably qualified consultant or person approved by the registrar who is independent of the builder or trade contractor that does or supervises the doing of the work,
(b)counter-signed and dated by an authorised representative of the builder or trade contractor that does or supervises the doing of the work, who is present at the inspection.
10.If the hold point at (7) does not result in approval to proceed with Option 1 or the balcony presents with waterproofing membrane defects extending beyond the width of the outer perimeter of free edge balconies (including curved balconies) exposed in accordance with (2) of Option 1, carry out the rectification in accordance with Option 2 unless the registrar has given written approval for the work to be done in a different way.
11.Supply and instal –
(a)Bostik Dampfix Gold waterproofing membrane in accordance with AS 4564.2 and any specifications or recommendations provided in writing by the manufacturer or supplier,
(b)all necessary movement control joints and new ceramic balcony floor tiles that are of the same or substantially the same quality, appearance, and finish as the existing tiles using grout that is of same or substantially the same type and colour as the existing grout, in accordance with AS 3958.1 and any specifications or recommendations provided in writing by the manufacturer or supplier of the replacement tiles and grout.
12.Clean and make good consequential damage to the soffit and exposed edges of affected balcony slabs.
13.In addition to the evidence mentioned in paragraph 8, provide evidence to the registrar of satisfactory completion of the work in the form of a report by a certifier:
(a)detailing the work done to each balcony and the results of hold point inspections at appropriate stages of waterproofing membrane and control joint installation;
(b)certifying that in the opinion of the certifier the work complies with the Building Act, including the building code and relevant Australian Standards.
Glass balcony balustrade panels (Defect 4)
14.You are required to take the action stated in paragraphs 15 and 16 to rectify the supply and installation of defective glass balustrade panels (marked ‘Phu Phong’) to the balconies of the following units in contravention of sections 42(1)(a) and 49 of the Building Act 2008:
(a)Level 3 – 304, 318
(b)Level 4 – 402, 404, 406, 408, 409, 413, 414, 415, 416, 418, 419, 421, 422, 423, 424
(c)Level 5 – 501, 502, 503, 504, 506, 507, 508, 510, 512, 513, 514, 515, 516, 517, 518, 519, 520, 521
(d)Level 6 – 601, 604, 611, 614, 615, 616, 617, 621, 623
(e)Level 7 – 702, 705, 709, 710, 712, 713, 722
(f)Level 8 – 801, 803, 804, 809, 810, 811, 813, 814, 818, 819, 820, 824
(g)Level 9 – 902, 903, 904, 906, 909, 910, 912, 914, 918, 922, 923, 924
(h)Level 10 – 1001, 1002, 1008, 1009, 1011, 1013, 1014, 1016, 1017, 1023, 1024
(i)Level 11 – 1101, 1102, 1103, 1106, 1117, 1109, 1111, 1113, 1115, 1116, 1121, 1122, 1123, 1124
(j)Level 13 – 1301, 1305
(k)Level 14 – 1410, 1415
15.Remove and dispose of all glass panels where any delamination is apparent and replace with new laminated toughened Grade A safety glass supplied and installed in accordance with AS 1288 and AS 2208.
16.Provide evidence to the registrar of satisfactory completion of the work in the form of a report by a certifier detailing the work done to each balcony and certifying that in the opinion of the certifier the work complies with the Building Act, including the building code and relevant Australian Standards.
Basement slab cracking (Defect 6)
17.You are required to take the action stated in paragraphs 18 to 20 to rectify the construction of the Basement Level B1 suspended floor slab and transverse beams and the Basement Level B2 slab in contravention of sections 42 and 49 of the Building Act 2008.
18.Arrange for a structural engineer to:
(a)inspect and record the location of each crack greater than 1.0 mm wide requiring repair in accordance with the recommendations of Messrs Joannides, Stephenson, Hazelton and Buchanan on page 11 of exhibit A7;
(b)prepare a repair method statement providing for:
(i)removal of any areas of vertical displacement or ‘stepping’ at crack locations;
(ii)cleaning and surface preparation of cracks, including grinding of crack edges if recommended by the structural engineer;
(iii)a hold point requiring the structural engineer to inspect the cleaned and prepared cracks before giving approval to proceed with crack sealing;
(iv)injection of an appropriate epoxy as specified by the structural engineer, including injection from the top side and underside of any cracks that may be prone to water ingress;
(v)inspection of the completed work by the structural engineer.
19.Carry out the rectification of the cracks in accordance with the repair method statement prepared in accordance with paragraph 18.
20.Provide evidence to the registrar of satisfactory completion of the work in the form of a report by the structural engineer detailing the work done and certifying that in the opinion of the structural engineer the work has been done in accordance with the repair method statement and complies with the building code and relevant Australian Standards.
General
21.You must minimise, to the extent reasonably practicable, the disruption to the use and enjoyment by the occupiers of the Premises, including but not limited to impeding access, excessive noise, vibrations, odours or dust caused by the work.
22.You must give The Owners – Units Plan No 3941, or its authorised representative, at least 2 weeks' written notice if access is required to a unit to perform work (except where access requirements to the unit have been notified previously and remain unchanged);
23.You must:
(a)make good any damage to the Premises, services and equipment caused by the work or persons doing the work;
(b)remove and dispose of all waste generated by the work;
(c)upon completion of the work leave all areas of the Premises affected by the work in a clean and tidy state.
………………………………..
Senior Member M. Orlov
for and on behalf of the Tribunal1 December 2023
REASONS
1.The Tribunal gave its decision in this matter with reasons on 26 October 2023. Order 2 required the parties to confer and submit a draft rectification order giving effect to the Tribunal’s decision by 7 November 2023. The parties sought and were granted an extension of time for that purpose. No party asked to relist the matter pursuant to liberty to apply granted by order 3. Instead, on 22 November 2023, the Tribunal was notified that the parties were unable to reach agreement and three different versions of a draft rectification order were submitted without any explanation for the differences and the reasons for disagreement.
2.On 24 November 2023, the Tribunal circulated a draft rectification order and informed the parties it proposed to make the order on 1 December 2023. The parties were invited to consider the proposed order and provide any comments in writing by 4.00 pm on 29 November 2023. If any party wished to relist the matter for a short hearing in relation to the proposed order the Tribunal advised it could make itself available on 28 or 29 November in the afternoon and could sit after 4.00 pm if necessary to accommodate the availability of counsel.
3.On 28 November 2023, the registrar provided details of the evidence to be provided to the registrar of satisfactory completion of the work.
4.On 29 November 2023, the applicant and the party joined provided their respective written comments on the draft order. The respondent informed the Tribunal the same day that it supported the submissions of the party joined but otherwise agreed with the draft order proposed by the Tribunal.
5.No party has requested the Tribunal to relist the matter for hearing in relation to proposed order.
6.The Tribunal has considered the parties’ submissions and made some changes to the final order. It is appropriate to provide brief reasons for the differences.
Evidence to be given to the registrar of satisfactory completion of the work
7.The Tribunal has made some changes to the insertions proposed by the registrar. These appear in paragraphs 13, 16 and 20 of the final order.
8.Where a certifier must be appointed to perform certain designated functions provided for in paragraphs 13 and 16 in addition to the certifier’s statutory role under the Building Act, the Tribunal is not persuaded that photographic evidence of the kind suggested by the registrar is reasonably necessary or likely to serve as useful evidence of satisfactory completion of the relevant work.
9.In the case of the crack repairs, the Tribunal has added a requirement for the repair method statement to provide for inspection of the completed work by the structural engineer.
The applicant’s submissions
10.The Tribunal is satisfied that units 908, 1511, 1604 and 1611 should not be included in the order dealing with the repair of waterproofing and tiling for the reasons stated by the applicant in paragraph 1 of the submissions.
11.The Tribunal does not accept that units listed in paragraph 2 of the applicant’s submissions should be excluded from the order. The matters raised in paragraphs 3 to 6 of the applicant’s submissions appear to be an attempt to reopen issues already decided by the Tribunal.
12.The Tribunal found at [150] of the reasons that the metal plate substituted for the originally specified T-section to be installed to the free edge balconies was not fit for purpose because it did not allow for vertical termination of the waterproofing membrane at balcony edges and that there is evidence it did not allow for expected thermal expansion, which exacerbated the waterproofing issues. At [153] of the reasons, the Tribunal found that defective workmanship manifested, among other things, as efflorescence staining to balcony slab edges, which is treated as a defect under the Tolerances Guide. Finally, the Tribunal found at [155] of the reasons that these and other things were systemic issues caused by a failure to carry out the waterproofing and tiling of external balconies in a proper and skilful way.
13.The Tribunal considers that it is appropriate for the certifier to carry out hold point inspections at appropriate stages of waterproofing membrane and control joint installation and to report on the results as part of the evidence of satisfactory completion of the work to be provided to the registrar. This is now reflected in paragraph 13 of the final order.
14.It is unclear whether the applicant’s submission that he should be able to obtain his own expert report as to the most appropriate rectification solution is directed at what is now paragraph 18(b) of the final order. The Tribunal decided at [337] of the reasons that the stated action to rectify the slab cracking should involve epoxy injection as agreed by the experts and the controversy whether it is necessary or preferable to grind the cracks beforehand was best left to the certifying engineer to decide. The repair method statement for which paragraph 18(b) of the final order provides for this.
The submissions of the party joined
15.The Tribunal has approached the issues raised by the party joined in relation to the applicability of the Building Act 2008 (Building Act) on the basis that work required to be done to rectify building work carried out in contravention of section 42 of the Act is, by definition, ‘building work’ within the meaning of section 6 the Act. It could not be otherwise. It does not cease to be ‘building work’ because it is work required by a rectification order, regardless of whether the order is made by the registrar or the Tribunal. The statutory requirements for the doing or supervision of ‘building work’ provided by the Construction Occupations (Licensing) Act 2008 (COLA) and the Building Act apply to work carried out under a rectification order in the same way as they apply to any ‘building work’. If building approval is required, it must be obtained. If a certifier must be appointed for the building work, it must be done. If building work is being carried out in contravention of the Building Act, the registrar has available the full range of statutory powers provided for by the Act, including the power to issue a stop notice under Part 4. The Tribunal considers it is neither necessary nor appropriate for a rectification order to be prescriptive in relation to matters that are provided for by legislation that applies to the work and to the entity or entities responsible for doing or supervising the work.
16.The Tribunal has provided for the appointment of a certifier at the applicant’s cost in paragraph 4 of the final order.
17.The Tribunal accepts the applicant’s submissions in relation to the need to incorporate the requirements of the notes on page 3 of the methodology for rectifying waterproofing and tiling defects provided by Messrs Joannides and Stephenson. This now appears in paragraphs 8 and 10 of the final order.
18.The Tribunal has included unit 1216 in paragraph 7(j) of the final order. Unit 1512 was already included and appears in paragraph 7(m).
19.The Tribunal accepts the submissions of the party-joined that circumstances may arise where an occupant of a unit may be unable to access, use or occupy their unit for a period of time while work is carried out on the balcony of their unit. The Tribunal accepts also that work in the basement carpark may prevent access to designated car spaces. These are unavoidable consequences of the nature of the work that must be done, regardless of whether the work is done by the owners corporation in the discharge of its statutory repair and maintenance obligations or by or on behalf of the applicant pursuant to the rectification order.
20.However, while it may appear ‘fair’ to make an order requiring the applicant to pay for alternative accommodation and car-parking because, as the party joined submits, where the Tribunal has found that the applicant failed to discharge his statutory duties under the COLA “owners ought not to bear the cost of the need to temporarily relocate (including, to the extent necessary, their possessions and car parking) where does the Tribunal get power to make such an order?
21.Neither the party joined nor the registrar has pointed to any relevant source of power in the COLA. On the Tribunal’s reading of the Act, compensation may be claimed only in the circumstances provide for by section 45 of the COLA, which do not apply here.
Costs
22.It is convenient to deal with the application brought by the party joined for an order that the applicant pay the costs of the party joined pursuant to section 48(1) of the ACAT Act. As the Tribunal said at [347] of the reasons, it is bound by the decision of the ACT Supreme Court in CIC Australia Ltd v ACT Planning and Land Authority [2013] ACTSC 96 that section 48(1) of the Act does not create a general discretion for the tribunal to order costs. The submission of the party joined to the contrary is incorrect. Where the Tribunal lacks power to make a costs order in favour of the party joined, the only proper course is for the Tribunal to dismiss the application.
Extension of time for appeal and stay of the rectification order
23.The applicant has requested that the Tribunal make an order extending the time to lodge an application for appeal within the tribunal under section 79(3) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) to 19 January 2024.
24.The applicant has requested also that the Tribunal make an order under section 56(d) of the ACAT Act that, in the event the applicant files and application for appeal by 19 January 2024, that the rectification order be stayed until final order.
25.Rule 94 of the ACT Civil and Administrative Tribunal Procedures Rules 2020 provides that an application for appeal must be lodged no later than 28 days after the day the order of the tribunal in the original application were made or any further time the tribunal allows. Rule 38(2) provides that the tribunal may, by order, extend the time for making an application. Section 151C of the Legislation Act 2001 provides that an application for an extension of time may be made after the relevant time has ended.
26.The applicant has submitted that the 28-day period ends on 29 December 2023. This is incorrect. The fact that the prescribed period ends on a day that is not a ‘working day’ within the meaning of section 151A of the Legislation Act 2001 – relevantly, a day when the Tribunal registry is open – means that the period is extended pursuant to section 151A(2) to the next day that is a ‘working day’, which is Tuesday, 2 January 2024. Normal listing of matters – including in the Review and Regulation directions list – commences on Monday 8 January 2024.
27.The Tribunal is aware that the applicant recently lodged an application for appeal against the Tribunal’s decision dated 26 October 2023 and the interim decisions by Senior Member T. Foley and Presidential Member G. McCarthy dated 19 November 2021 and 8 June 2022 respectively – presumably in the mistaken belief that the 28 day period for lodging an appeal was due to expire – and subsequently withdrew the application when reminded by registry staff that the Tribunal had not made final orders and time for lodging an appeal had not commenced to run.
28.Given that circumstance, the Tribunal is not presently persuaded that the applicant needs an extension of time or that it would be in the interests of justice to grant one. Should circumstances change it is, of course, open for the applicant to seek to persuade an appeal tribunal that time should be extended.
29.Once the application for appeal has been lodged, the parties should consider whether to make a joint application for the appeal to be removed to the Supreme Court under section 83(1) of the ACAT Act. The parties should be aware also that under section 85(2), the president may decide not to deal with an appeal if the president considers that the appeal could be dealt with more conveniently or effectively by the Supreme Court and it would be appropriate for the Supreme Court to do so. In that case, the applicant may appeal to the Supreme Court under section 86(1)(a)(iii).
30.The Tribunal considers that it would be premature to make any decision in relation to a stay of the rectification order until it has been determined where any appeal will be dealt with.
………………………………..
Senior Member M. Orlov
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