May21 Pty Ltd v Building Appeals Board

May21 Pty Ltd sought judicial review of a decision by the Building Appeals Board, which had determined an application for a staged building permit. The Board had made the determination under the Building Act 1993 (Vic). The primary issue was whether the Board had erred in law by not treating the contract price as the estimate of the cost of the whole of the building work for which the staged permit was sought. This issue arose from the interpretation of section 205I(2)(a)(i) of the Building Act 1993 (Vic).

The court examined whether the statutory phrase "having regard to" in the Building Act meant that the relevant building surveyor must adopt the contract price as the estimate. The court considered Australia and New Zealand Banking Group Ltd v Commissioner of Taxation (1994) 48 FCR 268 and Manns v Kennedy [2007] NSWCA 217. These cases held that the phrase "having regard to" does not necessarily compel adoption of the contract price. Instead, it allows for a consideration of various factors in determining the estimate. The court concluded that the Building Appeals Board had failed to properly apply the statutory provision and had erred in law.

The court quashed the determination of the Building Appeals Board and remitted the matter to the Board for reconsideration in light of the correct interpretation of section 205I(2)(a)(i) of the Building Act 1993 (Vic). The court did not make any further orders beyond the quashing of the determination and the remittal of the matter.