Jolley v Construction Occupations Registrar (No 2)

[2025] ACTSC 347

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Jolley v Construction Occupations Registrar (No 2)
Citation:	[2025] ACTSC 347
Hearing Date:	1 May 2025
Decision Date:	6 August 2025
Before:	Mossop J
Decision:	See [101]
Catchwords:	BUILDING AND CONSTRUCTION – RECTIFICATION ORDERS – Whether rectification order should be issued – discretionary decision – forensic decision by nominee not to provide evidence of quality assurance processes made it more difficult to make findings that he was not culpable for defects – financial burden of rectification order a consequence of nominee’s own decisions – rectification order made STATUTES – INTERPRETATION – Costs powers of the ACAT – where s 48 of the ACAT Act is simply not coherent – where explanatory material is concerningly significant in the provision’s construction – CIC Australia correctly decided – ACAT has only a narrow costs power STATUTES – PRESUMPTIONS – Presumption of reenactment – where a not coherent provision amended subsequent to a relevant judicial decision – where amendments consistent with existing interpretation – presumption of reenactment may have more work to do in the ACT than in larger jurisdictions as there is often a tighter feedback loop between judicial decisions and legislative action PRACTICE AND PROCEDURE – COSTS – Costs powers in ACAT appeal proceedings removed to the Supreme Court – Supreme Court retains its own costs powers and discretions in removed appeal proceedings – ACAT limited costs regime a relevant consideration in the exercise of the costs discretion
Legislation Cited:	ACT Civil and Administrative Tribunal Act 2008 (ACT) ss 6, 8, 26, 48, 48A, 49, 82, 83 ACT Civil and Administrative Tribunal Bill 2008 (ACT), cll 48, 49 BuildingAct 2004 (ACT) Construction Occupations (Licensing) Act 2004 (ACT), ss 31(2), 38(1) Court Procedures Act 2004 (ACT) Court Procedures Rules 2006 (ACT), rr 1701, 1707, 5001, 5052(1)(a), Pt 2.17 Courts and Other Justice Legislation Amendment Act 2018 (ACT) Courts Legislation Amendment Act 2014 (ACT) Freedom of Information Act 2016 (ACT) Justice and Community Safety Legislation Amendment Bill 2010 (ACT) Legal Profession Act 2006 (ACT) Legislation Act 2001 (ACT), s 139 Unit Titles (Management) Act 2011 (ACT), s 31
Cases Cited:	B & T Constructions (ACT) Pty Ltd v Construction Occupations Registrar [2013] ACTSC 219 CIC Australia Ltd v ACT Planning and Land Authority [2013] ACTSC 96; 277 FLR 26 Council of the Lapw Society of the ACT v Legal Practitioner 202021 (No 2) [2022] ACTSC 204; 18 ACTLR 166 Hollier v Australian Maritime Safety Authority (No 2) [1998] FCA 975 Insurance Australia Ltd v Albrecht (No 2) [2015] ACTSC 94 Jolley v Construction Occupations Registrar (Administrative Review) [2023] ACAT 65 Jolley v Construction Occupations Registrar (Administrative Review) (No 4) [2025] ACAT 40 Jolley v Construction Occupations Registrar [2025] ACTSC 55 PAAN Investments Pty Ltd (in liq) v Commissioner for Revenue for the Australian Capital Territory [2014] ACTSC 161; 290 FLR 1 Transcon Holding Pty Ltd v Aged Care Quality and Safety Commissioner [2023] FCAFC 60; 297 FCR 39
Texts Cited:	ACT, Parliamentary Debates, Legislative Assembly, 19 August 2008, p 3286 (Simon Corbell, Attorney‑General) Explanatory Statement, ACT Civil and Administrative Tribunal Bill 2008 (ACT) Explanatory Statement, Justice and Community Safety Legislation Amendment Bill 2010 (ACT) Revised Explanatory Statement, Courts Legislation Amendment Bill 2013 (ACT) Standing Committee on Legal Affairs, Legislative Assembly for the ACT, Scrutiny Report (Report No 55, 10 June 2008) Standing Committee on Legal Affairs, Legislative Assembly for the ACT, Scrutiny Report (Report No 59, 25 August 2008)
Parties:	Andrew Jolley ( Appellant) Construction Occupations Registrar ( First Respondent) The Owners – Units Plan No 3941 (Second Respondent)
Representation:	Counsel S Robertson SC with A Greinke and O Bellhouse-Smith ( Appellant) N Oram ( First Respondent) P A Walker SC with J N Bird (Second Respondent)
Solicitors Mills Oakley ( Appellant) ACT Government Solicitor ( First Respondent) Clayton Utz (Second Respondent)
File Numbers:	SCA 7 of 2024 SCA 8 of 2024
Decision Under Appeal:	Tribunal:	ACT Civil and Administrative Tribunal
	Before:	Senior Member Orlov and Senior Member Professor Foley
	Date of Decision:	26 October 2023 1 December 2023
	Citation:	[2023] ACAT 65 [2025] ACAT 40
	Case Title:	Jolley v Construction Occupations Registrar (Administrative Review) Jolley v Construction Occupations Registrar (Administrative Review) (No 4)
	Tribunal File Number:	AT 21/2021

MOSSOP J:  

Introduction

1․On 26 February 2025, the court gave its reasons addressing the majority of issues raised by Mr Jolley’s Notice of Appeal, the Registrar’s Notice of Contention, the Owners Corporation’s Notice of Contention and the Owners Corporation’s Notice of Appeal: Jolley v Construction Occupations Registrar [2025] ACTSC 55 (Jolley). The court subsequently made directions relating to the filing and service of written submissions and any additional evidence in relation to the outstanding issues. Oral submissions were made on 1 May 2025.

2․These reasons relate to the outstanding issues. They should be read in light of the reasons in Jolley, and they assume a familiarity with those reasons.

Remaining issues

3․The outcome of Mr Jolley’s appeal, the Registrar’s Notice of Contention, the Owners Corporation’s Notice of Contention and the Owners Corporation’s appeal are summarised in Jolley at [209]-[212]. The outstanding grounds of appeal or contention are as follows:

(a)Mr Jolley’s Notice of Appeal: ground 10 (decision to make a rectification order);

(b)the Owners Corporation’s Notice of Contention: ground 2(d) (decision to make a rectification order); and

(c)the Owners Corporation’s Notice of Appeal: ground 1 (costs).  

4․Because the court found that the decision of the ACAT was affected by errors of law, the ACAT’s discretion to make a rectification order miscarried and, as a consequence, the discretion needs to be re-exercised.

5․In addition to the question of costs raised by ground 1 of the Owners Corporation’s Notice of Appeal, it is necessary to address, to the full extent possible, the question of the costs of the proceedings in this court.

6․It is convenient to first address matters relevant to the decision whether to make a rectification order, and then to address the two costs issues.

Grounds 10 and 2(d) are unnecessary to deal with separately

7․Ground 10 of Mr Jolley’s appeal and ground 2(d) of the Owners Corporation’s Notice of Contention may be dealt with briefly. Ground 10 (set out in full at Jolley [19]) asserted that the ACAT erred in finding that it was appropriate to make the rectification order and ought to have concluded that it was not. Ground 2(d) (set out in full at Jolley [23]) asserts that a failure to have the defective work corrected when Mr Jolley had actual or constructive knowledge of it made it appropriate to exercise the discretion to issue the order to him.

8․Both of these relate to the ultimate exercise of discretion by the ACAT as to whether or not to make a rectification order. Having regard to the fact that other errors on the part of the ACAT require that the discretion as to whether or not to make a rectification order be re‑exercised by the court in any event, it is not necessary to separately determine either of those grounds. To the extent to which any substantive point would have been made in relation to those grounds, it can be made in relation to the re‑exercise of the discretion.

Defects 2 and 6: Re-exercise of discretion in relation to rectification order

Position of the parties

9․Following the publication of the reasons in Jolley and the conclusions there expressed, Mr Jolley did not seek to persuade the court that, when re‑exercising the discretion as to whether or not to make a rectification order, no order should be made in relation to Defect 2 (Balcony Tiling and Waterproofing) and Defect 6 (Basement Slab Cracking). He confined his submissions on the issue of the re‑exercise of the discretion to Defect 4 (Delamination of Balustrade Glass Panels).

10․The Owners Corporation submitted that the decision of the Tribunal in relation to Defect 2 and Defect 6 was supported by reasoning that has not been impeached. The Registrar did not take a position, although made some submissions relevant to the re‑exercise of the discretion to make a rectification order.

Decision

11․It is appropriate to make a rectification order in relation to Defects 2 and 6 essentially for the reasons given by the Tribunal.

12․Mr Jolley provided a construction service — namely supervision of waterproofing and tiling of external balconies by Chase Building Group Pty Ltd (Chase) and supervision of the construction of the basement floor slabs by Chase — in contravention of s 31(2) of the Construction Occupations (Licensing) Act 2004 (ACT) (COLA): Jolley v Construction Occupations Registrar (Administrative Review) [2023] ACAT 65 at [298(a)], [298(e)] (ACAT).

13․It would be consistent with the purpose of the COLA to require rectification of non‑compliant building works by those with a connection to the works: ACAT [299].

14․The injury, loss and damage caused, or that could have been caused, by the contraventions is as set out in relation to Defect 2 at ACAT [302] and in relation to Defect 6 at ACAT [305].

15․The rectification work will involve substantial inconvenience and disruption to the owners of units, although the disruptions to access and parking arising from the rectification of the basement level slabs may be easier to manage: ACAT [310]-[311]. Disruption will occur whoever undertakes the rectification work.

16․Both defects require remedy and someone, either the owners of units through the Owners Corporation or Mr Jolley, will have to pay for rectification.

17․It may be accepted that Mr Jolley did not, himself, carry out the defective building work. Instead, it was carried out by Chase, a company of which he was the sole director, secretary and shareholder.

18․Mr Jolley did have in place “supervision systems” relating to the carrying out of the building work but, as the ACAT concluded, those were inadequate to ensure that the building work was carried out in accordance with the requirements of the BuildingAct 2004 (ACT).

19․The passage of time since the building work was carried out and the liquidation of Chase likely means that Mr Jolley must personally bear the entirety of the liability without being able to pursue claims against trade contractors who carried out defective work. However, the findings of the ACAT make it clear that Chase was undertaking rectification works over the years following the issuing of the certificate of occupancy and use issued on 8 August 2013: ACAT [3]-[5]. There is no evidence that Chase took steps to bring proceedings against those responsible for any of the defects then identified. Nor is there evidence that Mr Jolley, the sole director, secretary and shareholder of Chase, was unaware of the defects that had then manifested themselves but remained unresolved. The decision to wind up Chase was made by Mr Jolley, who had access to professional advice as to the prudence of that decision at that time. As the ACAT found: “If he did not seek advice in relation to the company’s and his potential exposure to a rectification order where there were known defects in the Manhattan Apartments when he decided to wind up Chase, he has no one to blame but himself. If he was given incorrect advice, his remedies may lie elsewhere”: ACAT [327]. These facts tend to lessen the significance of the potential inability to now bring proceedings to recover damages from any such third party.

20․Mr Jolley’s lack of awareness of the potential for a rectification order is a matter that can be considered. It, however, is not of great significance in circumstances where the law has been determined to apply, where he appears to have been aware that he was under an obligation to ensure that the building was constructed in accordance with the requirements of the Building Act, and where the rectification order provisions were in force at the relevant time.

21․Consideration of these matters leads me to conclude that, notwithstanding the significant burden that making a rectification order is likely to place upon Mr Jolley, it is appropriate to make such an order.

22․There was no challenge to the ACAT’s conclusion as to the extent of the remedy required, other than the number of units affected by Defect 2. It is appropriate to make a rectification order to substantially the same effect as that made by the ACAT, except extending the obligation to the additional units identified in Jolley. The time in which the rectification work is to be carried out will be amended so as to recognise the fact that work has not been done during the pendency of the administrative review proceedings.

Defect 4: Re-exercise of discretion in relation to rectification order

Position of the parties

23․Mr Jolley submitted that his culpability, or lack thereof, in relation to Defect 4 was a relevant consideration for the purposes of exercising the discretion conferred by s 38(1) of the COLA. He submitted that, on the ACAT’s findings, he had no culpability “in any meaningful sense” in relation to the latent defect in the glass balustrade panels. He relied upon the finding of the ACAT at [246], which was to the effect that supervision of the work during installation at the site would not have alerted anyone to the fact that the glass was defective, and that the Tribunal was unable to say whether appropriate quality assurance processes would have made a difference. His submission was that the absence of culpability was a strong factor tending against the making of a rectification order in relation to Defect 4. He emphasised that the existence of a discretion as to whether or not to issue a rectification order indicated that there were cases in which, even though there was non‑compliance, a rectification order would not be made.

24․Mr Jolley also pointed to:

(a)the significance of the burden that would be placed upon him in relation to up to 104 of the balcony balustrades; and

(b)the fact that he no longer holds a relevant licence.

25․Consistently with the submissions that he made to the ACAT, Mr Jolley submitted:

(a)there is now no reasonable prospect of him recovering any money from Chase or from those who actually designed and constructed the non‑compliant work; and

(b)to make such an order would be a disproportionate result in circumstances where he bore no culpability and where he was unaware, when accepting the appointment as nominee, that he may be personally liable to correct or pay for non‑compliant work.

26․The Owners Corporation emphasised that, because of the existence of the defects, someone was going to have to pay to have them remedied. That would either be the owners of the units (acting through the Owners Corporation) or Mr Jolley.

27․While, by the time of oral submissions, the Owners Corporation did not challenge the finding of the ACAT at [246], counsel pointed to the other findings relevant to the assessment of Mr Jolley’s role, in particular, those at [228] and [235]. The submissions of the Owners Corporation emphasised that Mr Jolley could have given evidence about why the supplier of the glass for the balustrades was chosen and the attempts made to ensure that the product was fit for purpose and complied with applicable Australian Standards. Instead, Mr Jolley’s evidence disclosed that he knew nothing about the applicable Australian Standards and knew nothing about how the glass was sourced other than that there would have been some kind of tender process. The Owners Corporation submitted that the reasons of the ACAT at [251]‑[253] implied that “Mr Jolley had actual or constructive knowledge of the delaminated glass but he did nothing to rectify it”. The Owners Corporation submitted that Mr Jolley was aware of the delamination problem before he wound up Chase, and that he deregistered Chase at a time when limitation periods against other parties had not expired.

28․The submissions of the Registrar emphasised that the purpose of a rectification order under the statute was to serve the public interest and require that non‑compliant buildings be rectified. He submitted that how the contravention occurred and the culpability of the licensee may have “little to no weight” in the exercise of the discretion. He submitted that, if Mr Jolley wished to rely upon certain matters such as a lack of culpability, the financial burden of complying with the rectification order or the fact that the corporate licensee had ceased to exist, then it would be for Mr Jolley to provide evidence in sufficient detail to enable the decision‑maker to be satisfied of the relevant facts, and if he failed to produce such evidence in circumstances where it was particularly within his knowledge, then the court may draw the inference that the evidence would not have assisted his case.

29․The Registrar also submitted that the expiry of limitation periods would be a factor that weighed in favour of making a rectification order. That is because the only means of causing non‑compliant work to be rectified in the public interest would be making a rectification order against a relevant licensee.

Findings of the ACAT

30․The findings of the ACAT in relation to the balustrade panels were as follows (at [244]):

(a)the Vietnamese sourced glass in balustrade panels installed in the Manhattan Apartments:

(i)     has a latent manufacturing defect;

(ii)    is not fit for purpose;

(iii)    accordingly, does not comply with the standard under clause A2.1 of BCA – 2011;

(b)the building work done by Chase in relation to the installation of the balustrades, does not comply with section 42(1)(a) and section 49 of the Building Act.

31․So far as the role of Mr Jolley was concerned, the ACAT found:

228.Mr Jolley said in cross examination:

(a)He “would've put a tender out” for the selection of glass.

(b)He did not have any understanding of the requirements of the relevant Australian Standards. He did not look at them to see what they required and he was not aware that there were two applicable Standards.

(c)He did not tell any of the people comprising his 'supervision structure' to check the relevant Standards to see what they required.

(d)He now knows that glass had to be marked with kite markings showing that it had been tested to comply with AS/NZS 2208.

(e)He did not inspect the glass that was supplied and installed to check whether it had the requisite kite markings and did not cause anyone else to do so.

(f)Nobody reported to him that the glass did not have the requisite kite markings.

…

235.It would be otherwise if the glass had been supplied without such labels. While it may be open to doubt whether glass that was permanently marked by the manufacturer also had removable labels affixed as evidence of compliance with AS/NZS 2208 and where there is reason to be sceptical about the adequacy of the quality assurance and inspection processes Chase implemented, there is no evidence as to what happened at the time of installation. Nobody involved in the supply and installation of the balustrades gave evidence. Neither the architect’s specification for glass balustrade panels nor the trade contract with Sunshine was produced. It is not even clear whether the glass was supplied by Sunshine, or whether Sunshine was responsible for the installation of the balustrade system using glass procured by Chase or a third party.

…

246.In this case, the contraventions of the Building Act were the result of a latent defect in the glazing materials used in the construction. We accept that supervision of the work during installation at site would not have alerted anyone to the fact that the glass was defective. Whether it might have made a difference earlier, if appropriate quality assurance processes had been implemented in relation to the selection, manufacture and procurement of the glass, is not possible to say. The evidence did not touch on this issue. In those circumstances we are not satisfied that a contravention of section 32(2) of the COLA at the time of construction has been established.

(Footnote omitted.)

The “no culpability” submission

32․So far as the principal submission made on behalf of Mr Jolley was concerned (that he lacked any relevant culpability for the failure to meet the required standards), I do not accept that was the case.

33․The court is performing the role of the ACAT appeal tribunal, exercising an administrative discretion in proceedings where there is no onus or burden of proof. The ACAT is not bound by the rules of evidence and may inform itself in any way it thinks fit: respectively, ACT Civil and Administrative Tribunal Act 2008 (ACT) (ACAT Act), ss 8 and 26. So too for this court when performing the role of the appeal tribunal, either by reason of r 5052(1)(a) of the Court Procedures Rules 2006 (ACT) or by implication from ss 82 and 83 of the ACAT Act. In determining whether or not to make a rectification order, the Tribunal proceedings did not involve any party bearing an onus of proof. Rather, consistent with the approach taken in administrative tribunals, for the purpose of determining whether the making of a rectification order is appropriate, the Tribunal must act upon material that is probative. It is open to the Tribunal to give weight to evidence, or a lack of evidence, according to the capacity of each party to have adduced such evidence: see Transcon Holding Pty Ltd v Aged Care Quality and Safety Commissioner [2023] FCAFC 60; 297 FCR 39 at [96] and the cases cited therein.

34․The relevant unchallenged findings of fact are set out above. The Owners Corporation placed emphasis upon the admissions made in Mr Jolley’s evidence about his very limited knowledge or oversight of the selection of materials for the glass balustrades (ACAT [228]) and the limited evidence available about the process that was undertaken (ACAT [235]). On the other hand, Mr Jolley placed reliance upon the finding made by the ACAT at [246] that it was not possible to make a finding that quality assurance processes would have made a difference because the evidence did not touch on this issue.

35․It is important to understand the context in which the findings of the ACAT were made. They were made in the context of the ACAT having decided that a “‘failure to ensure’ that the construction services comply necessarily must involve some failure of supervision as a causal factor”. I have found that the imposition of that causal requirement was erroneous, although the issue of causation may be relevant to the exercise of discretion: Jolley [166].

36․The fact that the Tribunal could not say whether or not quality assurance would have made a difference for the purposes of considering whether a failure of supervision was a causal factor does not also determine that Mr Jolley lacked culpability for the balustrade defects. Rather, it is an illustration of the proposition that failing to present relevant evidence to the ACAT is a forensic strategy which cuts both ways. On the one hand, denying the ACAT evidence as to who was responsible for the sourcing and supply of the balustrade glass, and the quality assurance processes adopted, meant that the ACAT was unable to be positively satisfied that appropriate quality assurance processes in relation to the selection, manufacture and procurement of the glass would have prevented defective glass being installed (ACAT [246]). However, on the other hand, it also made it impossible to be positively satisfied that the defects could not have been avoided by such processes, and hence, that Mr Jolley lacked “culpability”.

37․While failing to produce evidence which it was natural to expect Mr Jolley to have had available to him made it more difficult to make findings adverse to him, it also had the effect of making it more difficult to make findings in his favour.

38․So far as his “no culpability” submission is concerned, the court is left in the position where:

(a)there is no positive finding by the ACAT that proper supervision of the quality assurance processes engaged in by Chase would have made no difference; and

(b)there were admissions made by Mr Jolley in his evidence to the ACAT indicating substantial deficiencies in his approach to supervision in relation to the glass balustrades.

39․In those circumstances, it is not possible to conclude that he had “no culpability” in relation to the defects in the balustrade glass. Had he wished to establish an evidentiary foundation for his “no culpability” submission, he might readily have put on evidence demonstrating the quality assurance processes that were adopted in order to demonstrate in turn that, despite his lack of engagement with the quality of materials used for the balustrades, either there were no means of avoiding using defective glass or the processes adopted by Chase that he had put in place were so good that he should be treated as not being “culpable” when it came to rectification of defects.

Decision on rectification order

40․Having regard to the findings of fact made by the ACAT and the admissions made by Mr Jolley during the course of his evidence which are recorded in the decision of the ACAT, I consider that it is appropriate as a matter of discretion to make a rectification order that extends to the rectification of the glass balustrades. In reaching that conclusion, I do not consider that the matters identified by Mr Jolley are sufficient to indicate that such an order should not be made. In addition to the matters taken into account in relation to Defects 2 and 6 (set out at [13], [17]-[20] above), I have also considered the following:

(a)The balustrades are defective due to delamination, as found by the ACAT at [243]‑[244].

(b)The balustrades require rectification, as found by the ACAT at [303].

(c)The injury, loss or damage caused, or that could have been caused, by the contravention is as described by the ACAT at [243].

(d)The rectification process is likely to cause substantial inconvenience to the unit owners, but that will be the case whoever carries out the rectification work.

(e)Chase and Mr Jolley controlled the construction process and the quality assurance processes relating to the selection of materials. The Owners Corporation and unit owners were dependent upon the builder and its nominee to achieve the standards required by the Building Act.

(f)The admissions made by Mr Jolley during the course of cross‑examination indicate a significant lack of engagement with his duty as a nominee in relation to the supervision of the quality of the materials used in the construction of the balustrades. That conclusion is easier to reach in circumstances where he might have put forward evidence to the ACAT or this court relevant to an assessment of his role and the systems and processes adopted in relation to quality assurance, but did not do so.

(g)Although there was no evidence as to the likely cost of replacing the relevant balustrades, it is likely to be substantial. There was, however, no evidence that would suggest that Mr Jolley lacked the ability to pay any such amount or that it would be personally oppressive for him to do so.

(h)For the reasons given earlier, I have not concluded that Mr Jolley was not “culpable” in relation to the defective glass. However, I also do not accept the submission by the Registrar that culpability is irrelevant to whether or not to issue a rectification order. Rather, it appears to be a subject matter open to a decision‑maker to take into account.

41․Having taken these matters into account, I consider that it is appropriate to make a rectification order that extends to the rectification of the glass balustrades.

Costs appeal

42․Ground 1 of the Owners Corporation’s Notice of Appeal identified as the relevant question of law the following:

Does the Tribunal have a discretion to make a costs order under section 48(1) of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (ACAT Act) otherwise than in accordance with the types of orders and circumstances specified in section 48(2)?

43․The ground then went on to assert that the Tribunal erred in concluding that s 48(1) did not provide the Tribunal with a general discretion to award costs.

The Tribunal’s reasons

44․The reasons of the Tribunal on the subject of costs were as follows:

The owners corporations’ costs

345.Section 48(1) of the ACAT Act provides that the parties to an application must bear their own costs unless the Act or another territory law otherwise provides or the tribunal otherwise orders.

346.The Tribunal considers that this is an application where it would have been appropriate to make an order that Mr Jolley pay the costs of the owners corporation if the decision in CIC Australia Ltd v ACT Planning and Land Authority and Ors (CIC) did not preclude it from doing so.

347.In that case, Penfold J held that section 48(1) does not create a general discretion for the Tribunal to order costs. The decision is binding on the Tribunal. Although the costs aspect of the decision in CIC has been cited by the ACT Supreme Court and the Court of Appeal the correctness of the decision has never been reconsidered or tested.

348.Where the law as it currently stands precludes the Tribunal from making a costs order in cases of this kind, it appears to us that the question whether the COLA should be amended to provide for the Tribunal to be able to order costs in appropriate circumstances is a matter that should be given urgent consideration. A decision to make a rectification order involves a decision to take regulatory action in the public interest, including to protect the integrity of the scheme for the licensing of construction occupations and the regulation of building works. It is an essential part of the Registrar’s statutory function to take such action in appropriate cases and to support the decision where review is sought.

349.In this case, the decision-maker did not give evidence and the Registrar did not serve any fresh evidence to support the decision under review or to answer the lay and expert evidence on which Mr Jolley relied. The burden of preparing expert evidence fell by default on the owners corporation. During the hearing, counsel for the owners corporation did all of the heavy lifting in relation to disputed factual issues. The same is true in relation to the extensive written submissions dealing with the facts. Save for submissions on the law and the exercise of discretion, the Registrar’s participation in the proceeding was essentially passive.

350.Cases of this kind are expensive to run, which may explain the Registrar’s approach. However, it is inherently unfair for a party in the position of the owners corporation to have to bear the substantial cost of seeking to justify a decision of the Registrar to take regulatory action in the public interest without any ability to recover its costs from the licensee in the event of a successful outcome.

(Footnotes omitted.)

45․In the additional reasons given on 1 December 2023 (found in Jolley v Construction Occupations Registrar (Administrative Review) (No 4) [2025] ACAT 40), the ACAT added the following:

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.

Submissions

46․The submissions of the Owners Corporation analysed the decision of Penfold J in CIC Australia Ltd v ACT Planning and Land Authority [2013] ACTSC 96; 277 FLR 26. It was submitted that authorities relevant to judicial comity indicated that the court should not simply adhere to the conclusion reached by Penfold J without considering for itself whether it is correct. The Owners Corporation submitted that the court should consider the issue for itself and decide that her Honour’s decision was wrong.

47․It submitted that s 48(1) of the ACAT Act conferred a discretion that was not constrained by s 48(2). Subsection (2) was said to operate as a departure from the default position (that each party is to pay their own costs) in the circumstances specified in that section. The Tribunal otherwise has a broad discretion to make a different costs order if it is satisfied that it is appropriate to do so.

48․The Owners Corporation agreed that, consistent with the reasons of Penfold J, there are three possible interpretations of the provision: the broad interpretation; the broad interpretation with limits; and the narrow interpretation. It pointed to certain extrinsic material not considered by her Honour, namely Standing Committee on Legal Affairs, Legislative Assembly for the ACT, Scrutiny Report (Report No 55, 10 June 2008) (Scrutiny Report No 55), debates in the Legislative Assembly on 19 August 2008 and a letter from the Attorney‑General on 20 August 2008 written to the chair of the Standing Committee on Legal Affairs in response to Scrutiny Report No 55.

49․The Owners Corporation submitted that the legislative intention was to confer a wide power to award costs not limited to the circumstances specified in s 48(2). It submitted that s 48(1) establishes a default position that may be departed from if the ACAT Act or another Act “otherwise provides”, or if the Tribunal otherwise orders. The circumstances listed in ss 48(2), 48A and 49 should be characterised as express examples of the types of orders that a party might expect could be made in the circumstances described in those sections. It submitted that, so far as the small claims jurisdiction of the ACAT was concerned, the inability to recover costs could be seen as an impediment to the access to justice principle reflected in ss 6(b)‑(c) of the ACAT Act. The Owners Corporation submitted that any subsequent amendments made to s 48 did not indicate that the Legislative Assembly had adopted or confirmed the interpretation of Penfold J in CIC Australia.

Mr Jolley’s submissions

50․Mr Jolley submitted that the decision in CIC Australia was correct when it was decided and, in any event, was not plainly wrong. It should not be departed from, particularly in circumstances where the Legislative Assembly has subsequently amended s 48 without disapproving CIC Australia.

51․Mr Jolley contended that the additional extrinsic material in fact supports the interpretation adopted by Penfold J. He submitted that it was significant that the section had been amended after the decision of Penfold J in CIC Australia without any alteration of the interpreted words. The relevant amendments were the Courts Legislation Amendment Act 2014 (ACT) and the Courts and Other Justice Legislation Amendment Act 2018 (ACT). He submitted that the legislature had the opportunity to amend the provision if it had intended to confer a broad costs power, but it did not. He placed particular reliance upon the 2018 amendments as indicating that the legislature had acted on the basis that s 48(1) did not confer a broad discretionary power.

Registrar’s submissions

52․The Registrar’s submissions included an analysis of the alternative meanings able to be given to s 48(1) and the derivation of the individual powers granted in the paragraphs of s 48(2). The Registrar submitted that the interpretation of s 48(1) as involving a broad discretionary power was not supported by the provision’s text or the context in which it appeared, in particular, the terms of ss 48(2) and 48A.

Decision

The decision in CIC Australia

53․CIC Australia was an appeal from the ACAT. The relevant question of law was identified by Penfold J and answered as follows (at [144]):

Question 1: Does ACAT have power to make costs orders under s 48 of the ACAT Act apart from the power to make costs orders of the kinds specified in s 48(2) in the circumstances specified in s 48(2)?

Answer: No. ACAT’s only powers to make costs orders are found in s 48(2) of the ACAT Act and any other applicable legislative provisions.

54․Penfold J’s decision involved a detailed analysis of the terms of s 48 and its legislative and non-legislative context.

55․Her Honour commenced at [40] by observing (undoubtedly correctly):

Section 48 is a very peculiar provision. It consists of several elements cobbled together apparently without regard to their combined effect, and is simply not coherent.

56․Nevertheless, her Honour identified three potential interpretations (at [47]):

(a)“Broad costs power with Examples”: this involved s 48(1) conferring a broad discretionary costs power, with examples of how the power might be used set out in s 48(2).

(b)“Broad costs power with Limits”: this involved s 48(1) conferring a broad discretionary costs power that, in the circumstances set out in s 48(2), could only be exercised as set out in that subsection.

(c)“Narrow costs power”: this involved s 48 only conferring a costs power in the circumstances set out in s 48(2) to make orders as described in that subsection.

57․Her Honour then examined s 48(2)(a), s 49 and the note in s 32 containing a cross‑reference to s 48(2)(d). She assessed whether or not the terms of those different provisions would support, or tell against, any of the three possible interpretations.

58․Her Honour concluded that:

(a)the terms of s 48(2)(a) would support either a Broad costs power with Examples or a Narrow costs power (at [50]);

(b)section 49 supported a Narrow costs power (at [52]); and

(c)the note in s 32 also supported a Narrow costs power (at [53]).

59․Penfold J then turned to examine the legislative purpose as set out in s 6 of the ACAT Act. She concluded (at [56]) that there was “nothing in the objects of the legislation that clearly establishes that ACAT is intended to have only a limited costs power rather than a broad discretionary costs power”.

60․Her Honour then examined a number of decisions in relation to a provision said to be a predecessor to s 48 (at [57]‑[64]). She considered that these previous decisions were of limited significance given the different language used in s 48, in particular, the qualifications in s 48(2).

61․Her Honour referred to general statements as to the jurisdiction of a tribunal to award costs in an earlier decision of the Supreme Court (at [65]‑[66]).

62․Next, she turned to explanatory material relating to the ACAT Act as originally enacted in 2008, as well as in relation to the Bill which inserted s 48(2)(b) (see the Justice and Community Safety Legislation Amendment Bill 2010 (ACT)). So far as the Explanatory Statement for the ACT Civil and Administrative Tribunal Bill 2008 (ACT) was concerned, Penfold J observed that the explanation of cl 48 was “clearer than s 48 itself” (at [68]). The Explanatory Statement indicated that the circumstances in which the ACAT could otherwise order were limited to the three circumstances in ss 48(2)(a), (b) and (c). Similarly, her Honour observed at [70] that the Explanatory Statement to the 2010 Bill relating to the insertion of s 48(2)(d) indicated “a clear legislative assumption that s 48 provides only very limited exceptions to ‘the general rule that parties … must bear their own costs’”.

63․As a result of the Explanatory Statements relating to these two stages in the evolution of s 48, Penfold J concluded that the explanatory material supported a conclusion that s 48 is intended to confer a “Narrow costs power” (at [71]).

64․Her Honour made reference to statutory provisions in other jurisdictions but noted that the ACT provisions were significantly different.

65․Her Honour concluded by referring back to her observations that s 48 was “not coherent” and that there was “no possible interpretation of it that makes sense of all the words of the section” (at [77]). She indicated that the “Narrow costs power” was correct, identifying three reasons (at [83]):

(a)Sections 48(2)(a) and 49 are provisions that directly support that interpretation.

(b)The interpretation is also supported by the contrasting approach to costs powers found in the legislation establishing the Victorian, Queensland and Western Australian tribunals.

(c)Most significantly, her Honour indicated that her conclusion relied heavily on non‑legislative materials being the note in s 32 and the explanations of s 48 found in the two Explanatory Statements.

66․Her Honour pointed out that it was “concerning” that extracts from the two Explanatory Statements should have such a significance for the interpretation of s 48 and made observations about the process by which such Explanatory Statements are prepared (at [84]).

Additional extrinsic materials

67․In relation to the ACT Civil and Administrative Tribunal Bill 2008 (ACAT Bill), Scrutiny Report No 55 included, under the heading “Are the provisions of the Bill concerning the costs of a matter such as to ensure that access to the tribunal is inexpensive?”, the following:

A stated object of the Bill is “to ensure that access to the tribunal is simple and inexpensive, for all people who need to deal with the tribunal” (paragraph 6(b)). Against this yardstick, some questions might be asked with respect to the provisions of the Bill concerning costs.

Subclause 48(1) provides that “[t]he parties to an application must bear their own costs unless this Act otherwise provides or the tribunal otherwise orders”. Subclause 48(2) then specifies some circumstances in which the tribunal may order a party to pay costs to another party.

The first question is whether subclause 48(2) is an exhaustive statement of when the tribunal may make a costs order.

If it is, then there is a question whether the circumstances specified are wide enough. A party to a civil dispute may find it necessary to go to considerable expense, even if a lawyer is not called upon. A party may need to pay for medical and other expert reports. A respondent to the case may well feel aggrieved that they cannot recover any expenses if they win the case. An applicant may feel that their damages have been swallowed up in expenses.

The Committee considers that there should be some explanation of why the usual rule in civil matters that “the loser pays” does not apply in the civil disputes jurisdiction of the tribunal.

68․The Attorney‑General’s response to the Standing Committee on Legal Affairs, which is reproduced in an annexure to Standing Committee on Legal Affairs, Legislative Assembly for the ACT, Scrutiny Report (Report No 59, 25 August 2008), included the following:

Costs

The Committee considers that there should be some explanation of why the usual rule in civil cases that the “loser pays” does not apply in the civil disputes jurisdiction of the tribunal. The costs policy in the Bill starts from a “user pays” principle, but allows for adjustment depending on the circumstances. I note that clauses 48 and 49 are wide in their application, allowing the tribunal to award costs in a variety of circumstances including where the tribunal finds in favour of the party, where a party causes unreasonable delay, and where a party contravenes an order.

69․In the Legislative Assembly, the Attorney‑General repeated those words during his speech in reply on the presentation of the ACAT Bill: ACT, Parliamentary Debates, Legislative Assembly, 19 August 2008, p 3286 (Simon Corbell, Attorney‑General).

70․It is notable that, even though s 48 relates to all aspects of the ACAT’s jurisdiction, the quoted statements all relate to an issue in the “civil disputes” jurisdiction, where the Tribunal was to be given jurisdiction previously only exercised by a court.

71․The extrinsic material does provide some support for the proposition that s 48 contains a power to award costs that is not confined to the circumstances listed in the paragraphs of s 48(2). That is because the Attorney‑General’s answer indicates that the ACAT Bill “allows for adjustment depending on the circumstances”. That is consistent with there being a general power of adjustment. The answer then refers to cll 48 and 49 of the ACAT Bill being “wide in their application”, and makes reference to a power to award costs “including” the three circumstances corresponding to the paragraphs of s 48(2) as enacted. There is also the reference to finding in favour of “the party”, which is more general than the language of “the applicant” used in cl 48(2)(a) of the Bill and s 48(2)(a) of the Act.

Amendments since CIC Australia

72․The Courts Legislation Amendment Act 2014 (ACT) amended s 48(2)(a) so as to allow the ACAT to make a costs order not only in relation to the filing fee paid by a successful applicant but also “any other fee incurred by the applicant that the tribunal considers necessary for the application”. It also made an amendment to s 48(2)(d) and omitted the note to s 48(3).

73․The Courts and Other Justice Legislation Amendment Act 2018 (ACT) inserted the words “or another territory law” after “this Act” in s 48(1). It also added a note to s 48(2) providing a cross‑reference to s 31 of the Unit Titles (Management) Act 2011 (ACT).

74․It is also relevant to note the subsequent insertion of s 48A, which provides a power to award costs where an applicant for review of a decision under the Freedom of Information Act 2016 (ACT) is successful. That provision is consistent with s 48 operating narrowly. If s 48 operated broadly so as to give a general costs power, then a provision such as s 48A would have been of less significance, as the Tribunal would already have a power to award costs.

Conclusion

75․As I have indicated earlier, I agree with Penfold J’s statement that “s 48 is simply not coherent”. The fundamental problem arises from the use of the word “However” at the commencement of s 48(2), as that suggests a qualification of what is stated in subs (1) rather than an implementation of the capacity of the Tribunal to “otherwise order”. Notwithstanding the incoherence of the language used, it was necessary to give the provision a meaning in order to answer the question posed in that case.

76․Accepting, as Penfold J did, the incoherence of the language used as a starting point, in my view, the decision of Penfold J was correct when made and the interpretation of s 48 as conferring only a narrow costs power remains the correct one. The explanatory material that was before her Honour clearly supported the conclusion that she reached. While the additional material could support an interpretation that gives a broader power to award costs, I do not consider that the additional explanatory material pointed to by the Owners Corporation is sufficient to compel a different interpretation to that ultimately reached by Penfold J.

77․I consider that Penfold J correctly analysed the consistency of s 48(2)(a), s 49 and the note in s 32 with each of the interpretations which she identified. The Owners Corporation accepted that her Honour was correct in concluding that these provisions did not support an interpretation of s 48 conferring a “Broad costs power with Limits”. The Owners Corporation contended that subs (2) should be interpreted as providing statutory examples of where the costs power may be exercised, but not limiting the costs power to those circumstances. That would be a novel form of legislative provision, not reflected in predecessor legislation or equivalent legislation in other jurisdictions. A non‑limiting example which is not stated to be an example is not a familiar legislative drafting technique. There is no indication that such novelty was intended. Confining the paragraphs of s 48(2) to examples which did not constrain a general power is not consistent with the very specific language used in the paragraphs of subs (2). Recognising that proposition, having regard to the incoherence of the drafting of the section, and using what indications there are from the text and context of the provision, I consider that Penfold J’s decision was correct when it was made.

78․The legislative amendments since that time are consistent with the costs power being one which is confined to the specific circumstances outlined in s 48(2). It is not necessary to engage with the debate over the reenactment presumption other than to say that, in a small jurisdiction such as the Territory, there is often a tighter feedback loop between court decisions and legislative action which may mean that the presumption has more work to do than in larger jurisdictions.

79․The amendments made to s 48 in 2014 and 2018, as well as the insertion of s 48A, tend to reinforce the conclusion that the interpretation reached by Penfold J is the interpretation that would best achieve the purpose of the Act for the purposes of s 139 of the Legislation Act 2001 (ACT). That is for the following reasons.

80․First, the 2014 amendment substituted the terms of s 42(2)(a) so as to add, in addition to the reference to the filing fee for the application, a reference to “any other fee incurred by the applicant that the tribunal considers necessary for the application”, as well as some examples. The Revised Explanatory Statement for this amendment indicates (at p 1) that the amendment was intended to “clarify that the ACT Civil and Administrative Tribunal (ACAT) has power to award incidental costs” (see, to similar effect, the description of the clause at p 3). It is clear from this that the legislative assumption was that s 48 had an operation consistent with the scope found by Penfold J. That is because if, as the Owners Corporation contended, s 48(1) provided a general power and s 48(2) simply provided examples as to how that power may be exercised, there would be no reason to expand the scope of s 48(2)(a) in order to “clarify” the scope of power. Rather, the general discretionary power to award costs would have always existed.

81․Second, the insertion of s 48A by the Freedom of Information Act 2016 (ACT) tends to support the correctness of the approach in CIC Australia and indicate that the legislature had subsequently acted upon the basis that s 48 had the scope identified by Penfold J. Section 48A provides a specific power to make an award of costs in freedom of information cases. Had s 48(1) contained within it a broad power to award costs, with s 48(2) simply providing examples of when it might be used, then s 48A would have been unnecessary because any successful applicant in a matter under the Freedom of Information Act would have been able to rely upon s 48.

82․Third, the 2018 amendment was intended to clarify an apparent inconsistency between s 31 of the Unit Titles (Management) Act 2011 (ACT) and s 48 of the ACAT Act. It is of less significance in determining the present question because, although the two ACAT decisions which provided the impetus for the amendment made reference to CIC Australia, the explanatory materials summarised the effect of s 48 in a manner that reflected its incoherent terms rather than clearly on the basis of the narrow interpretation in CIC Australia.

83․I have recorded that I consider that the decision in CIC Australia is correct. In those circumstances, it is unnecessary to consider the various authorities to which reference was made about the precise circumstances in which a single judge of the Supreme Court should follow an earlier decision of another single judge as a matter of judicial comity.

84․For those reasons, ground 1 of the Owners Corporation’s Notice of Appeal must be dismissed.

Costs of proceedings in the Supreme Court

Submissions

85․Mr Jolley submitted that, by reason of the order made under s 83(2) of the ACAT Act removing the ACAT appeal proceedings to this court, the Supreme Court was exercising an appellate function ordinarily reserved to an ACAT appeal tribunal. He submitted that those functions should be exercised in the same way as they would have been exercised had no order under s 83(2) been made. He noted that, had the matter been heard by the appeal tribunal, there would have been no power to award costs.

86․In the alternative, if the court considered that it had power to award costs and that the power should be exercised in the ordinary way, he submitted that the court should order that each party bear its own costs because the appeal was in the nature of a test case or because Mr Jolley succeeded on some matters even though he failed on others. He submitted that any order should not apply to the costs of the Registrar, who did not act as a contradictor in an adversarial sense.

87․The Owners Corporation pointed out that the Supreme Court had previously made orders that costs follow the event in appeals that had been removed to the court from the ACAT: B & T Constructions (ACT) Pty Ltd v Construction Occupations Registrar [2013] ACTSC 219 and PAAN Investments Pty Ltd (in liq) v Commissioner for Revenue for the Australian Capital Territory [2014] ACTSC 161; 290 FLR 1. The Owners Corporation also pointed to Council of the Law Society of the ACT v Legal Practitioner 202021 (No 2) [2022] ACTSC 204; 18 ACTLR 166, but submitted that the decision in that case turned upon the specific provisions of the Legal Profession Act 2006 (ACT).

88․The Owners Corporation submitted that Mr Jolley had been overwhelmingly unsuccessful in his appeal. To the extent to which he was successful, the Owners Corporation’s Notice of Contention was successful on the point that it raised. It also submitted that it was successful in part of its own appeal, namely the question of which units were to be covered by a rectification order. It submitted that costs should follow the event and Mr Jolley should be ordered to pay the Owners Corporation’s costs. Insofar as Mr Jolley asserted that this was a test case, although the Owners Corporation accepted that the determination of the legal issues in the appeal may be of interest more broadly in the construction industry, it pointed out, as identified in Hollier v Australian Maritime Safety Authority (No 2) [1998] FCA 975 and Insurance Australia Ltd v Albrecht (No 2) [2015] ACTSC 94 at [6], that the clarification of the law is a feature inherent in common law litigation and therefore much litigation involves a public interest going beyond the interests of the parties. It submitted that this inherent feature provides no ground for departure from the usual rule as to costs.

89․The Registrar submitted that there was not any inconsistency between the ACAT Act and the Court Procedures Act 2004 (ACT) or the Rules in relation to costs in removed proceedings. The Registrar submitted that the Supreme Court is given a broad discretionary power to award costs. Relevant considerations in the exercise of that discretion “may include the statement of statutory intention contained in s 48(1) of the ACAT [Act], as well as the objects and principles of the ACAT Act”. So far as the outcome in the present case was concerned, the Registrar submitted that the issue of costs could only be determined once the outcome was known and with the benefit of the court’s reasons for decision.

Decision

90․The essential issue relates to the extent to which the removal of proceedings into the Supreme Court pursuant to s 83 of the ACAT Act changes their character from the character they would have had if they had remained before the appeal tribunal of the ACAT. Specifically, the issue is whether removal means that the limited costs regime in s 48 of the ACAT Act continues to bind the Supreme Court, or whether removal means that removed appeals are then subject to the ordinary costs power of the Supreme Court. In the event that the ordinary costs power is to apply, there is a question as to whether the limited costs regime in the ACAT under s 48 of the ACAT Act is a fact that should influence the exercise of the discretion on costs.

91․Cost orders were made in both B & T and PAAN. No relevant reasons were given as to the availability of a power to award costs. Both cases were impliedly determined on the basis that the proceedings, having been removed into the Supreme Court, were not subject to the limitations that would have existed had the proceedings remained in the appeal tribunal of the ACAT. In neither decision was there any reference to any special considerations that might exist by reason of the limited costs power available to the ACAT under s 48 of the ACAT Act.

92․I accept the Registrar’s submission that there is no inconsistency between the provisions of the ACAT Act and the provisions of the Court Procedures Act and the Rules relating to costs orders made by the Supreme Court.

93․The most straightforward, and in my view the correct, approach is to treat the removed proceedings as being subject to the costs powers available in the Supreme Court. Although the Court is exercising the administrative appellate function that would otherwise have been exercised by the appeal tribunal, it remains the Supreme Court. The court’s statutory powers under the Court Procedures Act and the Rules continue to apply except to the extent to which they are qualified or excluded by the terms of the ACAT Act. Those powers include the general power to award costs and determine the quantum of costs payable under a costs order identified in Pt 2.17 of the Rules, including rr 1701 and 1707. Whether Pt 2.17 applies directly or only as a result of r 5001 does not need to be determined in this case.

94․The second question is the extent to which the limited power to award costs that exists in the Tribunal is relevant to the exercise of this court’s discretion as to whether or not to award costs. In my view, the limited costs regime in the ACAT is a relevant consideration. The range of applications that may be made to the ACAT are extensive, and the significance of the limited scope of costs that may be awarded in the Tribunal will vary depending upon the nature of the jurisdiction being exercised and the parties to the dispute. It is likely that, in determining whether or not to remove an appeal into the Supreme Court, consideration will be given to the fact that the proceedings will be moved from a very limited costs jurisdiction into a jurisdiction where costs orders are simply in the discretion of the court. However, the fact that the potential exposure of parties to a costs order is likely to be considered by the Tribunal when determining whether to exercise the removal power under s 83(2) does not mean that the issue cannot or should not be considered by this court in the proceedings before it. Because of the variety of matters arising under the multitude of statutes which give jurisdiction to the ACAT, it is not appropriate to attempt to articulate any generally applicable statements about the appropriateness of orders for costs in removed appeals.

95․In the circumstances of the present case, the proceedings involved complex contested issues relating to construction defects in a substantial residential development. The principally active parties were Mr Jolley (the former director, secretary and shareholder of the construction company, Chase) on the one hand and the Owners Corporation of the building in which the defects are present on the other. The underlying dispute concerns who will be required to carry out very substantial rectification works in the building. All parties were legally represented and had briefed barristers for the purposes of the proceedings in the ACAT. In addition, two out of the three parties briefed senior counsel for the purposes of the removed proceedings. I accept that the determination of the appeal has involved determination of questions of some significance for the construction industry generally. However, Mr Jolley’s motivation for the making of the application to the ACAT, and the appeal, is to avoid the liability that he would incur pursuant to the rectification order made by the Registrar. I do not accept that the case is appropriately characterised as a test case.

96․The parties sought that I give an indication of my views in relation to costs to the full extent that it was possible but subject to an entitlement, if they wished, to be further heard on the issue. As I understand it, that position was adopted in order to avoid the necessity for a further hearing and hence the expenditure of substantial further costs.

97․As between Mr Jolley and the Owners Corporation, I consider that costs should effectively follow the event. Although Mr Jolley achieved some success in his appeal by reason of the Notice of Contention and the re‑exercise of discretion, he has, as a matter of substance, been unsuccessful. In relation to the Owners Corporation’s appeal, the Owners Corporation lost on the costs argument but succeeded as to the scope of the rectification order. Recognising that the costs issue was the more substantial of the points raised in the Owners Corporation’s appeal, it is appropriate to make some adjustment to the overall outcome to reflect that lack of success.

98․So far as the position of the Registrar is concerned, given the limited role that the Registrar played, and that this was done pursuant to the Registrar’s statutory responsibilities, I consider that the Registrar should neither pay nor receive costs.

99․Dealing with the matter on the tentative basis that I indicated, I will make orders to the following effect, which will operate unless any of the parties wish to be further heard:

(a)Mr Jolley is to pay 90 percent of the Owners Corporation’s costs of his Notice of Appeal, the Registrar’s Notice of Contention and the Owners Corporation’s Notice of Appeal and Notice of Contention.

(b)There is no order as to costs as between the Registrar and either Mr Jolley or the Owners Corporation.

Conclusion

100․In summary:

(a)Ground 10 of Mr Jolley’s Notice of Appeal and ground 2(d) of the Owners Corporation’s Notice of Contention are unnecessary to determine.

(b)Upon the re‑exercise of the discretion under the COLA, a rectification order relating to Defects 2, 4 and 6 should be made.

(c)Ground 1 of the Owners Corporation’s Notice of Appeal relating to the costs power of the ACAT is dismissed.

(d)A costs order should be made against Mr Jolley in favour of the Owners Corporation in relation to the proceedings in the Supreme Court, but there should be no order as to the costs of the Registrar.

(e)The parties agreed that, if a rectification order was made, there should be a stay granted in terms that were agreed, and I will make such an order.

Orders

101․The orders of the Court are:

(1)The appeals in SCA 8 of 2024 and SCA 7 of 2024 are each allowed in part.

(2)Order 1 made by the ACT Civil and Administrative Tribunal made on 26 October 2023 and order 2 made on 1 December 2023 are set aside, and a rectification order is made in accordance with the Schedule.

(3)Mr Jolley is to pay 90 percent of all of the Owners Corporation’s costs of his Notice of Appeal, the Registrar’s Notice of Contention and the Owners Corporation’s Notice of Appeal and Notice of Contention.

(4)There is no order as to costs as between the Registrar and either Mr Jolley or the Owners Corporation.

(5)Order 2 is stayed:

(a)for a period of 28 days; and

(b)in the event that any party files a Notice of Appeal in respect of order 2 within 28 days, until further order of this court or the Court of Appeal.

(6)The parties have leave to be further heard in relation to the correction of any error in the Schedule or in relation to the costs of the proceedings in the Supreme Court so long as they notify the Associate to Mossop J by email (copied to each other party) within seven days.

Schedule

RECTIFICATION ORDER

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)
Licence Number	200428485 (surrendered on 3 August 2023)
Date of Order	6 August 2025

1․You, Andrew Jolley, must take the action stated in these orders (the order) to rectify building work you supervised as nominee of Chase Building Group Pty Ltd 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 30 September 2025, 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 2004 (ACT), 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; and

(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 s 42(1)(c) of the Building Act 2004:

(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, 702, 703, 708, 709, 711, 712, 714, 715, 716, 717, 724.

(f)Level 8 – 801, 802, 803, 809, 810, 811, 813, 816, 817, 823.

(g)Level 9 – 901, 902, 908, 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, 1506, 1508, 1509, 1510, 1511, 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; and

(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 install:

(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; and

(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 9, 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; and

(b)certifying that in the opinion of the certifier the work complies with the Building Act 2004, 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 ss 42(1)(a) and 49 of the Building Act 2004:

(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, 1109, 1111, 1113, 1115, 1116, 1117, 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 2004, 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 ss 42 and 49 of the Building Act 2004.

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; and

(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; and

(c)upon completion of the work leave all areas of the premises affected by the work in a clean and tidy state.

I certify that the preceding one hundred and one [101] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date:

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Amendments

14 August 2025          At paragraph [101] in order 5, pursuant to r 1613(2) of the Court Procedures Rules 2006 (ACT), omit the words “Orders 1-4 are” and substitute “Order 2 is”.