May21 Pty Ltd v Building Appeals Board - [2023] VSC 203

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

TECHNOLOGY, ENGINEERING AND CONSTRUCTION LIST

S ECI 2022 03744

MAY21 PTY LTD (ACN 163 938 074)	First Plaintiff
FEC MAY22 PTY LTD (ACN 632 983 950)	Second Plaintiff
v
BUILDING APPEALS BOARD	First Defendant
SHANE LEONARD	Second Defendant
VICTORIAN BUILDING AUTHORITY	Third Defendant

---

JUDGE:	Stynes J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 February 2023
DATE OF JUDGMENT:	20 April 2023
CASE MAY BE CITED AS:	May21 Pty Ltd v Building Appeals Board
MEDIUM NEUTRAL CITATION:	[2023] VSC 203

---

ADMINISTRATIVE LAW — Judicial review — Error of law on the face of the record — Review of determination of the Building Appeals Board made under the Building Act 1993 (Vic) — Determination of the Building Appeals Board quashed and matters remitted.

BUILDING AND CONSTRUCTION — Statutory construction — Application for staged building permit — Contract for whole of the building work — Matters a relevant building surveyor may have regard to when estimating the cost of the whole of the building work for which a staged building permit is sought — Building Act 1993 (Vic) s 205I(2)(a)(i) applied — Verraty Pty Ltd v Richmond Football Club Ltd (2020) 63 VR 150 applied.

STATUTORY CONSTRUCTION — Building Act 1993 (Vic) s 205I(2)(a)(i) — Whether relevant building surveyor is required to adopt the contract price as the estimate of the cost of the whole of the building work — Australia and New Zealand Banking Group Ltd v Commissioner of Taxation (1994) 48 FCR 268 applied — Manns v Kennedy [2007] NSWCA 217 applied.

WORDS AND PHRASES — ‘estimate’ — ‘having regard to’ — ‘contract price’— ‘staged permit’.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	J Twigg KC and C Dawlings	Moray & Agnew
For the Third Defendant	P Hanks KC and G Ayres	Weir Legal and Consulting

Contents

A.. Introduction

B... Summary of decision

C.. The Building Act 1993 (Vic)

D.. Background

E... The Board’s determination

F... Submissions

G.. Legal principles

G.1 Error of law on the face of the record
G.2 Statutory construction

H.. Consideration

I.... Other matters

J.... Orders

HER HONOUR

A Introduction

This is a judicial review of a determination made by the first defendant, the Building Appeals Board (‘the Board’). The Board is a statutory body established under the Building Act 1993 (Vic) (‘the Act’) with power to determine disputes that may be referred to it under the Act.[1] In this case, a dispute arose between applicants for a building permit and a building surveyor about the building surveyor’s estimate of the cost of the work for which the permit was sought. The plaintiffs are the applicants for the permit, and the second defendant is the building surveyor who is described as the ‘relevant building surveyor’ under the Act.[2]
[1]See Building Act 1993 (Vic) pt 10 (‘Act’).
[2]See ibid s 3(1) (definition of ‘relevant building surveyor’).
Four preliminary questions were raised for the Board’s determination:
(a)Question 1 –…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read May21 Pty Ltd v Building Appeals Board and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] VSC 203
Decision Date: 20 April 2023

CaseChat Overview and Summary

May21 Pty Ltd sought judicial review of a decision made by the Building Appeals Board under the Building Act 1993 (Vic). The Board had determined the amount of a staged building permit for a project undertaken by May21. The crux of the dispute was whether the relevant building surveyor was obligated to base the estimate of the total building cost on the contract price, as May21 argued, or if the surveyor had the discretion to consider other factors, as the Board had found. The matter was heard in the Supreme Court of Victoria.

The primary legal issue before the court was the interpretation of the Building Act 1993 (Vic) section 205I(2)(a)(i), particularly in relation to what factors a relevant building surveyor must consider when estimating the cost of building work for which a staged permit is sought. May21 contended that the contract price should be the sole basis for the estimate, whereas the Board held that the surveyor had the discretion to consider other relevant factors. The court was tasked with determining the correct interpretation of the statutory provisions and whether the Board's decision reflected an error of law.

The court examined the statutory language and relevant case law, particularly Verraty Pty Ltd v Richmond Football Club Ltd and Australia and New Zealand Banking Group Ltd v Commissioner of Taxation. The court concluded that the Building Appeals Board had erred in law by not recognising that the relevant building surveyor must adopt the contract price as the estimate of the cost of the whole of the building work, unless there was a valid reason not to do so. The Board's decision was thus quashed, and the matter was remitted for reconsideration in light of the court's interpretation.

The final orders of the court were that the determination of the Building Appeals Board be quashed, and the matter be remitted to the Board for reconsideration in accordance with the court's reasons. May21's application for costs was reserved pending the outcome of the remitted proceedings.

Orders