Meier v Construction Occupations Registrar (Administrative Review)
[2023] ACAT 47
•25 August 2023
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
MEIER v CONSTRUCTION OCCUPATIONS REGISTRAR (Administrative Review) [2023] ACAT 47
AT 81/2021
Catchwords: ADMINISTRATIVE REVIEW – review of rectification order made under Construction Occupations (Licensing) Act 2004, Part 4 – validity of discretion to exercise power to make a rectification order – limitation period for the making of a rectification order – application of the term “entity” for the purposes of sections 34, 35 and 38 of the Construction Occupations (Licensing) Act 2004 – statutory construction of the Construction Occupations (Licensing) Act 2004 and the Building Act 2004 – whether the nominee of one licensee is responsible for the supervision of work undertaken by another licensee – nominee is responsible for “relevant construction services” per section 31 of the Construction Occupations (Licensing) Act 2004 and is therefore responsible for work performed by subcontractors
Legislation cited: Building Act 2004 ss 6, 7, 42, 49, 136
Construction Occupations (Licensing) Act 2004 ss 6, 7, 8, 28, 31, 34, 35, 38
Subordinate
Legislation cited: AS 3500.3.2003 – Plumbing and drainage: Part 3 Stormwater drainage cl 9.3.6, 9.3.7, 9.4
AS 3700:2001 – Masonry structures cl 4.7.2, 11.4.14, 12.7.2.3
Cases cited:Adams v Lambert [2006] HCA 10
Briginshaw v Briginshaw [1938] HCA 34
Comcare v Power [2015] FCA 1502
Deputy Commissioner of Taxation v Woodhams [2000] HCA 10
Diploma Constructions (WA) Pty Ltd v South Central WA Pty Ltd [2015] WASC 289
Helkeast Pty Ltd v Ruckschloss [2017] ACTSC 65
Koundouris v Construction Occupations Registrar [2015] ACAT 92
Jolley v Construction Occupations Registrar [2021] ACAT 112
Jolley v Construction Occupations Registrar [2022] ACAT 47
List of
Texts/Papers cited: Building Code of Australia 2009, Vol 1, Class 2-9 Buildings
Guide to Standards and Tolerances 2007, developed by Victorian Building Commission et al
Tribunal:Senior Member Prof P Spender
Senior Member G Tomlins
Date of Orders: 25 August 2023
Date of Reasons for Decision: 25 August 2023
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 81/2021
BETWEEN:
KURT MEIER
Applicant
AND:
CONSTRUCTION OCCUPATIONS REGISTRAR
Respondent
AND:
THE OWNERS – UNITS PLAN NO 3664
Party Joined
TRIBUNAL:Senior Member Prof P Spender
Senior Member G Tomlins
DATE:25 August 2023
ORDER
The Tribunal orders that:
1.The decision under review is varied so that:
(a)the applicant is required to prepare and serve on the party joined and the respondent a program of works by 29 September 2023.
(b)the applicant must complete all works required to be undertaken by the rectification order by 28 May 2024.
2.The decision is otherwise confirmed.
………………………………..
Senior Member Prof P Spender
For and on behalf of the Tribunal
REASONS FOR DECISION
1.In the reasons below, a reference to ‘ACAT’ or ‘tribunal’ refer to the ACT Civil and Administrative Tribunal generally, whereas ‘Tribunal’ refers to the presently constituted tribunal. The respondent is referred to from time to time as the Registrar.
Summary of decision
2.The Tribunal has concluded that the respondent gave the applicant valid notice of intention to make a rectification order under the Construction Occupations (Licensing) Act 2004 (COLA)[1] on 11 March 2021 and the respondent correctly served a rectification order upon the applicant on 20 July 2021. The applicant provided the relevant construction service referred to in the rectification order as nominee of the builder. As nominee, the applicant is responsible for the relevant construction service, including the design and engineering of the same, and this responsibility extends to the work carried out by subcontractors. The Tribunal, standing in the shoes of the respondent, is comfortably satisfied that the construction service contravened the COLA and the Building Act 2004 (Building Act) and it is appropriate to make a rectification order in relation to the applicant. The decision under review is therefore substantially confirmed but the timing of the parties’ consequential obligations has been adjusted in the orders above.
[1] The relevant provisions of the COLA are set out in Annexure 1 below
Background
3.This application concerns building work that was undertaken at Block 32, Section 52 Lyons (the land or the premises). The applicant held a Class B Builders Licence,[2] and in late 2008 he was approached by a representative of the owner of the land to erect a couple of two-storey buildings consisting of 14 residential units and a basement carpark upon the land (Lido or Lido Project or the building).[3] The owner of the land had obtained conditional development approval for the Lido Project on 8 October 2007 and unconditional development approval on 13 December 2007. A firm of building design consultants prepared the architectural plans up to this stage.[4]
[2] Licence number 19741029 – Tribunal documents filed 6 October 2021 (Tribunal documents), page 724
[3] Witness Statement of Kurt Meier dated 16 December 2022 at [11]-[12]
[4] Witness Statement of Kurt Meier dated 16 December 2022 at [13]
4.Meier Constructions Pty Ltd ACN 137 401 006 (Meier Constructions or the Builder or the company) was incorporated on 29 May 2009.[5] The applicant was the sole director of the company, and the applicant’s wife was the only shareholder.[6] On 9 June 2009 the applicant caused the company to apply for a construction practitioner licence.[7] The applicant agreed to being appointed as the nominee for the company in the aforementioned application.[8] The company was subsequently granted a Class B Builders Licence.[9]
[5] Witness Statement of Kurt Meier dated 16 December 2022 at [14], ASIC, Historical Extract for Meier Constructions Pty Ltd dated 17 April 2023 (Exhibit R1)
[6] Witness Statement of Kurt Meier dated 16 December 2022 at [14], ASIC, Historical Extract for Meier Constructions Pty Ltd dated 17 April 2023
[7] Tribunal documents, pages 724-726
[8] Tribunal documents, page 726
[9] Licence number 2009506 – Tribunal documents, page 20
5.Building approval for the Lido Project was issued on 29 June 2009 and on 2 July 2009 the applicant signed a Building Commencement Notice Application Form on behalf of the Builder and as the nominee.[10] On 29 July 2009, the Building Commencement Notice was issued.[11]
[10] Witness Statement of Kurt Meier dated 16 December 2022 at [15], Tribunal documents, page 20
[11] Tribunal documents, page 21
6.The Builder and the owner signed a contract for the Lido Project on 4 August 2009.[12] The applicant described this contract as a “cost plus” contract with a fixed upper limit, for “construction only”, not “design and construction”.[13]
[12] Witness Statement of Kurt Meier dated 16 December 2022 at [16], citing Witness Statement of Kurt Meier filed 22 December 2021, Annexure B
[13] Witness Statement of Kurt Meier dated 16 December 2022 at [16]
7.An amended development approval for the Lido Project issued on 22 September 2009. A second firm of building designers prepared the architectural plans for this stage. This amendment received building approval on 27 November 2009.[14]
[14] Witness Statement of Kurt Meier dated 16 December 2022 at [17]
8.A Certificate of Occupancy and Use for the Lido Project was issued on 17 June 2011.[15]
[15] Witness Statement of Kurt Meier dated 16 December 2022 at [18], Tribunal documents, page 22
9.On 5 April 2019 the Registrar served a notice of intention to make a rectification order under section 34 of the COLA (the 2019 Notice of Intention) upon the applicant.[16] On 31 May 2019, the applicant responded to the 2019 Notice of Intention.[17] The company was placed into liquidation on 20 June 2019[18] and was de-registered on 2 June 2020.[19]
[16] Tribunal documents, pages 394, 395-407
[17] Tribunal documents, pages 416-423
[18] Tribunal documents, page 651
[19] Witness Statement of Kurt Meier dated 16 December 2022 at [19], ASIC, Historical Extract for Meier Constructions Pty Ltd dated 17 April 2023
10.A further notice of intention to make a rectification order was served upon the applicant on 11 March 2021 (2021 Notice of Intention).[20] The applicant sent a response to the 2021 Notice of Intention on 29 March 2021.[21]
[20] Tribunal documents, pages 644-649
[21] Tribunal documents, pages 658-667
11.On 20 July 2021 the respondent made an order pursuant to section 38 of the COLA (rectification order) requiring the applicant to rectify certain defects which the respondent stated had been done as part of a construction service at the premises.[22] The applicant sought review of the rectification order by means of an application that was filed in the tribunal on 25 August 2021. By an order made on 27 September 2021, the owners corporation of the premises – Units Plan No 3664 – was joined as a party to the proceedings.
[22] Tribunal documents, pages 8-16. The relevant text of the rectification order is set out at Annexure 2 below
12.Relevant documentation was filed in the application for review which is referenced below.
13.A hearing was held on 17 April 2023 to 19 April 2023. A view of the premises was conducted on 18 April 2023. The parties filed and served submissions after the hearing on 28 April 2023 and 8 May 2023.
The applicant’s contentions
14.The applicant argued that the rectification order must be set aside because:
(a)there was and is no power to make the rectification order (Contention 1); and
(b)the rectification order should not be made as a matter of discretion. (Contention 2).[23]
Contention 1: No power to make the rectification order
[23] Applicant’s statement of facts and contentions dated 16 December 2022 at [2]
15.The applicant argued that the tribunal’s jurisdiction is derived from the COLA. Section 38 of the COLA relevantly requires “an entity” to take stated action to “rectify work” done as part of a “construction service”. The applicant argued that the power to make a rectification order is subject to and conditional upon:
(a)the rectification order being made before the relevant dates contained in section 35(5) of the COLA;
(b)the entity, as a matter of fact, having provided the construction service, or part of the construction service to which the notice relates; and
(c)the Registrar being satisfied that the entity contravened the COLA or, relevantly, the Building Act and it is appropriate to make a rectification order.[24] The applicant’s arguments on this ground will be discussed under Contention 2 below.
Limitation period
[24] The relevant provisions of the COLA and the Building Act are set out in Annexure 1 below
16.The applicant argued that section 35(5) of the COLA limits the power of the Registrar (and correspondingly, the tribunal) to make a rectification order, and the expiration of the period referred to in that provision provides a substantive right of immunity to the making of an order. The applicant submitted that section 35(5) of the COLA is part of a long stop limitation regime, providing a 10-year limitation period from the date of the certificate of occupation, subject only to express exceptions providing an extension to a maximum of 11 years.[25] The purpose of the provision is apparent from the text, the nature of the provision and extrinsic material. The exceptions are directed to where a major defect manifests itself close to the end of the 10-year period. The exceptions allow the Registrar sufficient time to investigate the defect (one year from the date the Registrar first became aware of the act that caused the contravention) and to issue a notice of intention, consider submissions and issue a rectification order (one year from the date the act that caused the contravention was the subject of a notice of intention).[26]
[25] Applicant’s facts and contentions dated 16 December 2022 at [12]
[26] Applicant’s facts and contentions dated 16 December 2022 at [13], citing Building and Construction Legislation Amendment Bill 2019, Explanatory Statement, pages 20-21
17.The applicant argued that the interpretation that best gives effect to the purpose of section 35(5) is that:
(a)the one-year extension starts to run when the act that caused the contravention/defective works was first the subject of a notice of intention. It is not permissible for the Registrar to issue successive notices under section 34 up to the 10-year period so as to continue to extend the limitation period; and
(b)the exception only applies to the extent that the act that caused the contravention/defective works that are the subject of the rectification order was also the subject of the section 34 notice. The exception does not operate for all purposes.[27]
[27] Applicant’s facts and contentions dated 16 December 2022 at [14]
18.The applicant’s argument continued that the exception will only operate where the Registrar has issued a notice that meets the description of section 34 notice. A notice made under section 34 of the COLA will be a nullity if:
(a)it fails to meet a requirement made essential by the COLA; or
(b)it could reasonably mislead a recipient as to what is necessary to comply with the notice.[28]
[28] Applicant’s facts and contentions dated 16 December 2022 at [16], citing inter alia Adams v Lambert [2006] HCA 10 at [25]-[29]
19.The applicant contended that the apparent purpose of the section 34 notice of intention is to give the recipient fair notice of why the Registrar intends to make a rectification order to allow the entity the opportunity to investigate the alleged defective work and provide submissions as to why a rectification order should not be made and provide an undertaking that meets the requirements of the COLA.[29] In this context, the section 34 notice of intention must identify sufficiently the following to allow the entity a fair opportunity to make submissions:
[29] Applicant’s facts and contentions dated 16 December 2022 at [22], citing Koundouris v Construction Occupations Registrar [2015] ACAT 92 at [49]
(a)what works are alleged to require rectification;
(b)how those works are proposed to be ordered to be rectified;
(c)why the entity is proposed to be made responsible to rectify those works, and in particular:
(i) the relevant construction services that were provided by the entity; and
(ii) how the acts done as part of providing those construction services caused it to contravene the COLA or, relevantly, the Building Act, so as to cause the defective works.[30]
[30] Applicant’s facts and contentions dated 16 December 2022 at [23]
20.The applicant submitted that the rectification order was prima facie out of time because:
(a)the Certificate of Occupancy and Use was issued on 17 June 2011;
(b)consequently, the 10-year limitations period ended on 17 June 2021; and
(c)the rectification order was made on 20 July 2021.[31]
[31] Applicant’s facts and contentions dated 16 December 2022 at [24]
21.The applicant noted that there is no evidence that the Registrar only first became aware of the act that allegedly caused the contravention within six months before the end of the 10-year period.
22.The applicant argued that each of the defects the subject of the rectification order (save for the storm water drainage tie-in) were the subject of the 2019 Notice of Intention which was issued on 5 April 2019, more than one year before the making of the rectification order.[32]
Validity of the 2021 Notice of Intention
[32] Applicant’s facts and contentions dated 16 December 2022 at [26]
23.Further, the applicant said that the 2021 Notice of Intention, which the Registrar contended was a notice given under section 34 of the COLA, is not such a notice. He argued that the 2021 Notice of Intention does not meet the basic requirements of the COLA and is misleading, particularly to the extent that the respondent asserted that the defects listed in the “Respondent’s List of Defects to be Rectified” filed on 4 October 2022 (Respondent’s List of Defects) are the subject of the 2021 Notice of Intention.[33] The applicant argued that certain items on the respondent’s List of Defects were defects that could not fall within the scope of the 2021 Notice of Intention and, correspondingly, the rectification order. The example given was items 17 to 21 of the Respondent’s List of Defects.[34]
Did the applicant provide construction services under Part 4 of the COLA?
[33] Applicant’s facts and contentions dated 16 December 2022 at [27]
[34] Applicant’s facts and contentions dated 16 December 2022 at [28]
24.The applicant invited the Tribunal to question whether the applicant had necessarily provided the relevant construction services that gave rise to any defects and, more generally, if the applicant is an “entity” for the purposes of Part 4 of the COLA.[35]
The COLA does not require the nominee of one licensee to supervise the construction services provided by another licensee
[35] Applicant’s facts and contentions dated 16 December 2022 at [38] and footnote 32, citing Jolley v Construction Occupations Registrar [2022] ACAT 47
25.In submissions that were filed subsequent to the hearing, the applicant argued that the role of the nominee in this circumstance is only to:
(a)supervise the construction services provided by the corporate licensee in respect of which they act as nominee; and
(b)ensure that all construction services provided by the corporation in respect of which they act as nominee comply with the COLA and the operational acts including the Building Act.[36]
[36] Applicant’s supplementary submissions filed 28 April 2023 at [1.7(a)], page 5
26.Importantly, the applicant argued that the COLA does not require the nominee of one licensee to supervise the construction services provided by any other licensee other than the corporate licensee in respect of whom they are appointed. Therefore, for example, the nominee of a corporate builder is not required to supervise construction services by a corporate plumber. Applying this to the present circumstances, the applicant asserted that the COLA did not require the applicant to supervise the plumbing work performed by plumbers on the premises or supervise the building or plumbing plan certifier.[37]
Contention 2: Not appropriate for the tribunal to exercise the discretion to make the rectification order
[37] Applicant’s supplementary submissions filed 28 April 2023 at [1.7(b)], page 5
27.The applicant argued that the tribunal must decide for itself whether or not a rectification order should be made and there is no presumption that the Registrar’s decision was correct.[38] In deciding whether the reviewable decision is the correct or preferable decision, the applicant argued that the tribunal should be guided by the principles in Briginshaw v Briginshaw (Briginshaw) to make findings of fact that are based on material that is logically probative.[39] The Briginshaw test requires the tribunal to be “comfortably satisfied” when making findings of fact.
[38] Citing Comcare v Power [2015] FCA 1502 at [58] per Katzman J
[39] [1938] HCA 34
28.The applicant argued that the Registrar had acted on a number of false assumptions.[40] Further, the benefits and burdens of a potential rectification order are relevant matters to the exercise of the discretion to make such an order.[41] Therefore, if cracking does not cause a building to be structurally unsound so as to give rise to a risk to public safety, it could not result in a rectification order that requires major works to a building.[42] Overall cracking that is superficial or amounts to an aesthetic issue that does not compromise the structural integrity cannot found the basis for a rectification order. For example, in respect of the defect at Item 7.2.5,[43] the cracks in unit 10 which are said to be due to excessive settlement/footing displacement, the applicant argued it cannot possibly be suggested that the applicant rectify the footings of a multiunit development so as to achieve sufficient strength and rigidity to prevent superficial cracking from occurring in the future. On this basis the rectification order must be set aside.[44]
[40] Applicant’s facts and contentions dated 16 December 2022 at [37]
[41] Applicant’s facts and contentions dated 16 December 2022 at [41]
[42] Applicant’s facts and contentions dated 16 December 2022 at [41]
[43] Respondent’s list of defects to be rectified dated 4 October 2022, page 4
[44] Applicant’s facts and contentions dated 16 December 2022 at [42]
The respondent’s contentions
29.The respondent argued that the COLA provides for the making of rectification orders in relation to an entity in certain circumstances.[45] ‘Construction service’ is defined in section 6(2) as the doing or supervision of work in a construction occupation. ‘Construction occupation’ is defined in section 7, and includes ‘builder’, which is further defined in section 8 as an entity that provides, has provided or proposed to provide a building service. ‘Building service’ is defined in section 8(2) as the doing or supervising of building work.[46] The definition of ‘building work’ in the dictionary to the COLA points the reader to section 6 of the Building Act. That section of the Building Act defines building work as, relevantly, “work in relation to the erection, alteration or demolition of a building”.[47] The applicant did not dispute that the work which fell within the ambit of the rectification order constituted ‘building work’ in the COLA and the Building Act.
[45] As the rectification order was made on 20 July 2021, the relevant version of the COLA is republication 58, which was in force from 24 June – 23 August 2022
[46] Respondent’s submissions on legal issues dated 7 March 2023 at [7]
[47] Respondent’s submissions on legal issues dated 7 March 2023 at [8]
30.The respondent further argued that the reference to “operational act” under, inter alia, section 34(1)(a) of the COLA refers to the definition in section 42 of the Building Act which requires building work to be carried out in accordance with the Building Code of Australia (BCA), in a proper and skilful manner, and in accordance with approved plans. If the supervision of building work is carried out in a way that results in a contravention of any of these requirements the nominee will have provided a construction service that is not in accordance with the Building Act. Such a contravention permits the issuing of a notice of intention under section 34 and will ultimately found the making of a rectification order in section 35 of the COLA.[48]
[48] Respondent’s submissions on legal issues dated 7 March 2023 at [17]
31.Applying the legislative provisions to the present case, the Builder, Meier Constructions, was obliged to comply with the Building Act in constructing the units plan development which is the subject of these proceedings. In particular, the Builder was obliged to comply with the requirements of section 42 of the Building Act in completing the buildings. It was also an offence for the Builder to construct a building in such a way that the resulting building did not comply with the BCA pursuant to section 49(2) of the Building Act.[49] The applicant, as nominee of Meier Constructions for the construction of the development, was responsible for the supervision of the construction services provided by Meier Constructions, and was obliged to ensure that Meier Constructions complied with all relevant operational acts, including the Building Act.[50] A breach of the Building Act by Meier Constructions as builder was thus a failure by the applicant to ensure compliance with those obligations, in accordance with his statutory role as nominee. Such a breach justifies the making of a rectification order against him.[51]
Limitation period
[49] Respondent’s outline of submissions on facts dated 19 April 2023 at [6]
[50] Respondent’s outline of submissions on facts dated 19 April 2023 at [8]
[51] Respondent’s outline of submissions on facts dated 19 April 2023 at [9]
32.The respondent argued that the applicant has impermissibly used the purposive approach to read words into a statute and the applicant’s submissions are a gloss on the statute which does not emerge from the language of the statute itself.[52] The respondent drew the Tribunal’s attention to the language of section 35 of the COLA and argued that the Tribunal should apply the words of the statute.[53] The time limit for making a rectification order is set out in section 35(5). Neither the applicant nor the respondent relied upon subparagraph (a) of that provision, so it is not relevant to the current proceedings.[54]
[52] Respondent’s submissions on legal issues dated 7 March 2023 at [28]-[29]
[53] Respondent’s submissions on legal issues dated 7 March 2023 at [26]
[54] Applicant’s facts and contentions dated 16 December 2022 at [25]. The Tribunal notes that the respondent made the following statement in its submissions on legal issues dated 7 March 2023 at [27] in relation to section 35(5)(a): ‘[f]or completeness, the Respondent does not rely upon this paragraph, and it is not presently relevant’.
33.The respondent contended that subsection 35(5)(b) applies in the present case. This provision allows the respondent to make a rectification order within one year after an entity was given a notice under section 34 if that notice was given before the end of the 10-year period. If a notice which complies with section 34 is issued within the 10-year period, the respondent has the power to make a rectification order within the year after that section 34 notice is issued.[55]
Validity of the 2021 Notice of Intention
[55] Respondent’s submissions on legal issues dated 7 March 2023 at [27]-[28]
34.The respondent argued that the applicant’s submission about the validity of the 2021 Notice of Intention erected “edifices around the requirements of a valid notice” for the “implicit purpose of making that section harder to satisfy”.[56] Although it is true that section 34 requires a notice of intention to provide details of the rectification order that may be made, this does not mean that the notice must state the action required to rectify specific work done as part of a construction service. This, submitted the respondent, follows for a number of reasons:
(a)a rectification order can require the entity to do a number of things, as set out in section 38(1), including demolishing part of a building or starting or finishing work in relation to which a construction service has been provided. A notice under section 34 need only give details of the steps which the addressee will be required to take in order to give details of the rectification order which may be made, consistent with section 34. Notably, the details of the rectification order are different and distinct from the work which must be carried out pursuant to such an order.[57]
(b)Section 38(3) makes it clear that a rectification order need not state how a thing to be done under an order is to be done. The respondent questioned how a notice under section 34 would need to state the action required to rectify specific work if that is not required to be stated in a rectification order itself.[58]
(c)The respondent described section 34 as a ‘procedural fairness’ provision and asserted that the applicant need only be given notice of the steps he would be required to take if the respondent makes the rectification order contemplated. Those steps are “necessarily conditional given that section 34 is a notice provision and subject to submissions in response made by the addressee. It would be unworkable for the notice provision to require the detail submitted by the applicant in circumstances where the notice was preliminary, and dependent upon the submissions made by the recipient thereof”.[59]
[56] Respondent’s submissions on legal issues dated 7 March 2023 at [30]
[57] Respondent’s submissions on legal issues dated 7 March 2023 at [31]
[58] Respondent’s submissions on legal issues dated 7 March 2023 at [31]
[59] Respondent’s submissions on legal issues dated 7 March 2023 at [31]
35.Therefore, properly construed, section 34 does not require the recipient be given notice of the work necessary to comply with the rectification order or how the works are proposed to be ordered to be rectified.[60] In this respect, the respondent relied upon the observations of the tribunal in Jolley v Construction Occupations Registrar[61] (Jolley) where Senior Member Foley asked whether the section 34 notice in that case contained “all the information that was necessary to fulfil that statutory purpose to be served by the notice”.[62] In particular, Senior Member Foley found that the notice in that case:
[i]nforms the recipient, in detail, of the rectification order that may follow. It provides an explanation of why the order is being considered by serving copies of the [relevant] reports. It informs him he can make submissions to avoid, alter or instead provide an undertaking to the rectification order. … It does not fail a test of validity if it neglects to do more.[63]
[60] Respondent’s submissions on legal issues dated 7 March 2023 at [32]
[61] [2021] ACAT 112
[62] [2021] ACAT 112 at [69]
[63] [2021] ACAT 112 at [69]
36.The respondent argued that the 2021 Notice of Intention complies with section 34 of the COLA, and is valid, because the notice:
a. provided details of the proposed rectification order, including the steps that the applicant would be required to take to comply with the order which was proposed to be made;[64]
b. provided notice of why the respondent proposed to make the rectification order, including the nature of the defects alleged and how those defects contravened the BCA;[65] [and]
c. invited the applicant to make a submission in relation to the proposed rectification order.[66]
The COLA does not require the nominee of one licensee to supervise the construction services provided by another licensee
[64] Respondent’s submissions on legal issues dated 7 March 2023 at [35], citing Tribunal documents 646‑648
[65] Respondent’s submissions on legal issues dated 7 March 2023 at [35], citing Tribunal documents 644‑646
[66] Respondent’s submissions on legal issues dated 7 March 2023 at [35], citing Tribunal documents 648
37.The respondents described this argument as “one of the applicant’s key submissions” being that the Builder, and by extension the Builder’s nominee, are not responsible for a range of matters, including the design or engineering of the building work, or the work carried out by subcontractors who are also required to be licensed under the COLA.[67] The respondent asked rhetorically:
[I]f the applicant’s position is correct, and the builder is not responsible for defects arising from defective design or responsible for plumbing, electrical, gasfitting or other subcontractor works, what remains?[68]
[67] Respondent’s further submissions dated 8 May 2023 at [11]
[68] Respondent’s further submissions dated 8 May 2023 at [13]
38.In response to the applicant’s submission on this issue, the respondent first focussed upon the law and in particular the overarching obligation of the nominee to supervise the building work. As the respondent stated in their submissions:
[S]upervision of building work carried out in a way or resulting in a contravention of any of these requirements [under sections 16 of the COLA, section 42 of the Building Act and the BCA] is the provision of a construction service by the nominee otherwise than in accordance with the Building Act. Such contravention permits the issuing of a notice of intention under section 34, and ultimately founds the making of a rectification order in section 35 [of the COLA].[69]
[69] Respondent’s submissions on legal issues dated 7 March 2023 at [17]
39.The respondent argued that it does not matter whether the nominee designed the building work (or by extension whether the applicant carried out the non‑complying building work). Even if the applicant relied upon the designs of others in designing the building and carrying out the building work that does not alleviate him from personal responsibility for the supervision of the work carried out by his company.[70] It was the applicant’s responsibility to supervise the works to make sure that his company complied with its obligations as builder. Whether the company chose to provide those services directly, or through a subcontractor, it was still responsible at law for the end result. The respondent relied upon the comments of Mitchell J in Diploma Constructions (WA) Pty Ltd v South Central WA Pty Ltd[71] (DiplomaConstructions) regarding the defective design of a building:
Another premise behind the appellant’s submission is that the design and the construction of a building are mutually exclusive concepts, at least in the circumstances of this case. I do not accept that premise. The ordinary meaning of the term ‘construct’ - to form by putting together parts; build; frame; devise - inherently comprehends aspects of design. Whether the construction of a building is satisfactory may depend on the configuration of the building, the materials used for the building and the methods used to place or join material chosen. The choices made about many of these matters may be regarded as aspects of both design and construction of the building. The Act does not exclude the Tribunal having regard to such matters so long as construction is involved. It is sufficient that the work can be characterised as the construction of a building carried out by the builder. If the work can be so characterised, it does not matter whether or not the work is also characterised as an aspect of design.[72]
[70] Respondent’s submissions on legal issues dated 7 March 2023 at [18]
[71] [2015] WASC 289
[72] [2015] WASC 289 at [35] (citations omitted)
40.Diploma Constructions was cited by Walmsley AJ in the ACT Supreme Court in Helkeast Pty Ltd v Ruckschloss.[73]
[73] [2017] ACTSC 65
41.The respondent argued that the applicant’s submission was wrong on the facts in that it ignored the relevant facts and in particular that each of the respondent’s witnesses gave evidence that the defects in the design and construction of the development which they had identified “would have come to the attention of a builder acting reasonably, and this would have prompted such a builder to take steps to raise concerns about the design with relevant experts”.[74] The respondent argued that the applicant (for and on behalf of the building company of which he was the sole director and nominee) was obliged to review the design provided to him before and during construction thereof, and raise issues with that design as they came to his attention. As stated by Mr McInnis in the hearing, “no design is 100% perfect”,[75] and it therefore follows that the design is a collaborative process to ensure that a compliant, sound building is constructed.[76]
[74] Respondent’s further submissions dated 8 May 2023 at [15]
[75] Transcript of proceedings, 18 April 2023, page 21
[76] Respondent’s further submissions dated 8 May 2023 at [16]
Party joined contentions
42.The party joined supported the submissions of the respondent.
Consideration of Contention 1: No power to make the rectification order
Whether the applicant is an “entity” for the purposes of sections 34, 35 and 38 of the COLA
43.“Entity” is defined in section 34(1)(a) of the COLA as a licensee or former licensee. The applicant is the nominee of Meier Constructions, which was engaged to perform the construction service. He is also a licensee or former licensee. He is or was the holder of Class B Builders Licence, number 19741029.[77] As stated by Presidential Member McCarthy in Jolley v Construction Occupations Registrar (Jolley II):[78]
The words “a licensee or former licensee” in section 34(1) are unambiguous and should be given their ordinary meaning, namely a person (whether they be an individual, a corporation or partnership) that is (or was) a licensee for the purposes of the COLA irrespective of what role the licensee might perform. …
Being a licensee, he is an ‘entity’ for the purpose of section 34 (1). The Registrar therefore had jurisdiction to make a rectification order against him. …
To ask whether a nominee of a licensee can be the subject of a rectification order ignores the central question: is the person who is the subject of a rectification order ‘a licensee or former licensee’? In this case, the answer to that question is plainly “yes”. The applicant admits he is a licensee.[79]
[77] Tribunal documents, page 724
[78] [2022] ACAT 47
[79] [2022] ACAT 47 at [92]-[94]
44.When construing section 34 in Jolley II, the Presidential Member also stated:
In this case, where the words of section 34(1) are unchanged, their meaning (including the meaning of ‘licensee or former licensee’) should be determined by reference to all material that is available at the time the determination is made. In the case of the rectification order, that time was 18 March 2021 when the order was made. …
The material presently available (and that was available when the rectification order was made) includes the 2019 [Explanatory Statement] which, as the party joined pointed out, states:
A rectification order can be made with respect to a licensee. All nominees are licensees …
Example 4 confirms that to be so.[80]
[80] [2022] ACAT 47 at [126]-[128]
45.Example 4 states as follows:
Examples of licensee or former licensee
4 a licensed plumber, who is the nominee of a licensee that is a corporation, does or supervises plumbing work as the nominee of the licensee …
46.The Tribunal applies the reasoning in Jolley II to the present rectification order that was made on 20 July 2021 and concludes that the applicant is an entity for the purposes of sections 34, 35 and 38 of COLA.[81]
The COLA does not require the nominee of one licensee to supervise the construction service provided by another licensee
[81] This conclusion may be further buttressed by the amendments made to COLA pursuant to the Building and Construction Legislation Amendment Act 2019 which applied to the rectification order made in these proceedings on 20 July 2021. However, it is not necessary for the Tribunal to decide this issue.
47.Section 31 of the COLA states that the role of the nominee of a licensed corporation is to supervise the construction service of the corporation for which the nominee is responsible (the relevant construction service) and to ensure that the relevant construction services comply with the COLA and the operational acts. In this case, the relevant construction service is building work. As the respondent noted, ‘construction service’ is defined in section 6(2) of the COLA as the doing or supervision of work in a construction occupation.[82] The Tribunal notes the definitions of ‘builder’, building service’ and ‘building work’ relied upon by the respondent in the submissions discussed above. The applicant did not dispute that the work which fell within the ambit of the rectification order constituted ‘building work’ in the COLA and the Building Act. The applicant is responsible for the “relevant construction services” in section 31 of the COLA. The relevant construction services are building work which is erection, alteration or demolition of a building at the premises. This term is wide and contemplates work performed by subcontractors and others involved in designing and constructing the building. This is clear from the decision in Diploma Constructions quoted above – it is sufficient that the work can be characterised as the construction of the building carried out by the Builder.
[82] Respondent's submissions on legal issues dated 7 March 2023 at [7]
48.This interpretation is consistent with the broad legislative scheme in the COLA which is intended to protect the public by requiring defective works to be rectified by those who are responsible for the defects.[83] As stated by the applicant, the COLA and the operational acts protect the public suffering harm by reason of building defects. Public safety is a primary consideration.[84]
[83] Jolley v Construction Occupations Registrar [2022] ACAT 47 at [65]
[84] Applicant’s facts and contentions dated 16 December 2022 at [40]
49.Therefore, the Tribunal concludes that the applicant was responsible for the design and construction of the building at the premises as a matter of statutory construction of the relevant provisions of the COLA and the Building Act. Further, the applicant’s responsibility as nominee for the relevant construction service extends to the work carried out by subcontractors.
50.The respondent also argued that the applicant was generally responsible for the building work in fact, because of the evidence that the defects in the design and construction of the development would have come to the attention of a builder acting reasonably, and would have prompted such a builder to take steps to raise concerns about the design with the relevant experts.[85] This is discussed in more detail below when the Tribunal considers the evidence led in the proceeding.
The Validity of the 2021 Notice of Intention
[85] Respondent’s further submission dated 8 May 2023 at [15]
51.As discussed above, the applicant argued that the 2021 Notice of Intention was invalid because it omitted certain defects listed in the respondent’s List of Defects that was subsequently filed in the proceedings on 4 October 2022. The Tribunal agrees with the arguments made by the respondent that section 34 requires a notice of intention to provide details of the rectification order that may be made but it does not mean that the notice must state all actions required to rectify the alleged defects. The reason for this is that the legislation contemplates that a somewhat iterative process flows from a notice of intention.
52.In Jolley, Senior Member Foley identified the purposes that the notice of intention must fulfil under section 34(2) of the COLA. First, it must inform the recipient of the details of the subsequent rectification order that may follow. Second, it must explain to the recipient why the Registrar intends to make that order. Third, it must encourage the recipient to make submissions about the making of the order, including means to avoid it by giving the rectification undertaking instead.[86] Each of these purposes is satisfied by the text of the 2021 Notice of Intention.[87] It informed the applicant in some detail of the rectification order that might follow, it provided the expert reports which gave an explanation of why the rectification order was being considered and it informed him that he could make submissions to avoid, alter or provide an undertaking regarding the rectification order. Using the language of the High Court in DeputyCommissioner of Taxation v Woodhams,[88] the 2021 Notice of Intention contained all the information that was necessary to fulfil the statutory purpose to be served by the notice.[89] The omission of certain particulars of the alleged defects from the 2021 Notice of Intention did not invalidate the notice.
Limitation Period: Was the rectification order statute-barred?
[86] Jolley v Construction Occupations Registrar [2021] ACAT 112 at [69]
[87] Tribunal documents, pages 644-650
[88] [2000] HCA 10
[89] Jolley v Construction Occupations Registrar [2021] ACAT 112 at [68]-[70]
53.The Tribunal recognises the importance of the arguments made by the applicant regarding the long stop limitation period that is stated in section 35(5) of the COLA. However, the Tribunal considers that the respondent has complied with this provision because section 35(5)(b) allows the Registrar to make a rectification order under section 38 of the COLA one year after the entity was given notice if the Registrar has given the entity a notice under section 34 before the end of the 10-year period. The 10-year period is defined in section 35(6) of the COLA to mean the period starting on the later of several days which includes the date that the Certificate of Occupancy and Use was issued. In this case, a Certificate of Occupancy and Use was issued for the premises on 17 June 2011.[90] As stated above, a valid notice of intention was served on 11 March 2021. This notice of intention fell within the 10-year period that ran from the Certificate of Occupancy and Use. Under section 35(5)(b), the Registrar had a further year to serve the rectification order and they did so on 20 July 2021.
[90] Witness Statement of Kurt Meier dated 16 December 2022 at [18]
54.The Tribunal notes the arguments made by the applicant asserting that section 35 of the COLA does not contemplate the Registrar issuing successive notices of intention so as to evade the long stop limitation period in section 35(5) of the COLA. The Registrar issued an earlier notice of intention on 31 May 2019 (referred to above as the 2019 Notice of Intention). The applicant argued that the 2019 Notice of Intention was in substantially the same terms as the 2021 Notice of Intention, apart from the storm water drainage tie-in. The Tribunal considers that there is a material difference between the two notices of intention but does not consider that the legislation precludes the Registrar from issuing successive notices of intention provided that procedural fairness is afforded to the recipient of the notice of intention. In that respect, the Tribunal refers to the purpose of the notice of intention which is discussed above. The Tribunal also observes that a process flowed from the 2019 Notice of Intention whereby the applicant engaged with the Registrar regarding the defects. The Tribunal recognises the submission that successive notices of intention may potentially undermine the long stop limitation period in section 35 of the COLA, however we do not consider that one notice of intention within the 10-year period has that effect, particularly when the language of section 35 contemplates that the Registrar can act on the ‘latest’ event in section 35(5) and the ‘later’ of the days nominated in section 35(6).
55.As regards the applicant’s submissions that the 2021 Notice of Intention was “misleading”, the Tribunal rejects this submission and refers to its discussion above about the terms of the 2021 Notice of Intention as well as its findings that the terms of the 2021 Notice of Intention were adequate to fulfil the requirements of section 34 of the COLA.
Conclusion on Contention 1
56.The Tribunal concludes that the Registrar (and by extension the Tribunal) has the power to make the rectification order. For the sake of completeness, the Tribunal notes that there was a faintly pressed submission made by the applicant that the rectification order was invalid due to its terms because the rectification order must order the applicant to take stated action to rectify particular “work” done as part of a construction service. The applicant alleged that the rectification order does not identify any work done as part of a construction service provided by the applicant and it is otherwise not possible to determine what is the subject of the rectification order.[91] In response, the respondent argued that this submission is not made out on the face of the rectification order.[92] An edited version of the rectification order is set out in Annexure 2 of these reasons. It is clear on the face of the rectification order that the respondent has ordered the applicant to take stated actions to rectify particular work as part of a construction service.
Contention 2: Not appropriate to exercise the discretion to require rectification
Introduction
[91] Applicant’s facts and contentions dated 16 December 2022 at [44]
[92] Respondent’s submissions on legal issues dated 7 March 2023 at [37]
57.The Tribunal agrees with the applicant’s assertion that it must decide for itself whether or not a rectification order should be made and there is no presumption that the Registrar’s decision is correct. The applicant also argued that the Registrar had acted on a number of false assumptions which were articulated in a general way in the applicant’s submissions.[93] However the expert reports provided by the respondent were challenged by the applicant in some detail, as discussed below. The Tribunal also agrees that it must decide whether the reviewable decision is correct or preferable, standing in the shoes of the Registrar, and there is no such thing as a legal onus of proof when the Tribunal is undertaking this task. The Tribunal considers that the statements made by Katzman J in Comcare v Power[94] support these propositions. Insofar as the Tribunal should be guided by the principles in Briginshaw, the Tribunal notes that the Briginshaw test requires the tribunal to be comfortably satisfied when making findings of fact. Because these proceedings involve occupational elements the Tribunal will apply the Briginshaw test in its discussion of the findings of fact which are set out below. To emphasise the point, the Tribunal is comfortably satisfied that the findings of fact set out below are justified by the evidence.
Is the rectification order justified on the evidence?
[93] Applicant’s facts and contentions dated 16 December 2022 at [37]
[94] [2015] FCA 1502 at [58]
58.Generally speaking, as outlined above, the applicant argued that if cracking does not cause a building to be structurally unsound so as to give rise to a risk to public safety, it could not result in a rectification order that requires major works to a building. On this basis the rectification order must be set aside.[95] The respondent and party joined relied on the rectification order and the expert reports it referenced. This evidence was supplemented by expert reports filed in the proceedings by all parties, as set out below.
[95] Applicant’s facts and contentions dated 16 December 2022 at [42]
59.The respondent and party joined provided four expert reports and the applicant filed two expert reports in support of their respective contentions. The discussion of the evidence below is arranged by setting out under each defect alleged in the rectification order the respondent’s and party joined’s evidence first followed by the applicant’s evidence and contentions. The Tribunal will then separately consider Contention 2, that is whether the discretion to require a rectification order is justified on the evidence. The Tribunal will then generally conclude on Contentions 1 and 2.
Contention 2: The Evidence
60.The defects identified in section 4 of the Rectification Order of 20 July 2021[96] are discussed below, taking into account the Respondent’s List of Defects.[97] These alleged defects are grouped under three main headings: structural and façade issues, water intrusion and leakage, and stormwater management.
[96] Tribunal documents, page 12
[97] Respondent’s List of Defects filed 4 October 2022
61.In addition to the tribunal documents, several submissions and expert reports were filed by the parties. They are listed below with information about the qualifications of the authors of the reports:
(a)Witness statement of Kurt Meier dated 13 December 2021 (First Witness Statement of Kurt Meier).[98] As stated above, Mr Meier is the applicant in the proceedings, and was the director and nominee of the Builder. He became a licensed builder in the ACT in 1974 and has nearly 50 years’ experience in the industry.[99]
(b)Witness statement of Kurt Meier and index of documents dated 16 December 2022 (Second Witness Statement of Kurt Meier).[100]
(c)Expert report of David Carmichael dated 28 February 2022 (First Carmichael Report).[101] Professor Carmichael is an Emeritus Professor of Civil Engineering, University of New South Wales, and Unisearch. He is a structural engineer who consults and formerly lectured in construction, engineering, and project management. He has published nearly 200 technical papers and edited several books on these subjects.
(d)Expert report of David Carmichael dated 31 March 2023 (Second Carmichael Report).[102]
(e)Witness statement of Allyson Hogan and index of documents AMH-1 dated 7 March 2023 (Witness Statement of Allyson Hogan).[103] Ms Hogan was the solicitor for the applicant when this document was filed.
(f)Expert report of Ross Brown dated 23 March 2022 (First Brown Report).[104] Mr Brown is a hydraulic engineering consultant from Unisearch at the University of New South Wales. He is a licensed plumber, drainer, and gas fitter with additional relevant qualifications of an Associate Diploma of Engineering (Plumbing Services) as well as a Diploma of Plumbing Services. He is also a lawyer, and his present position is a hydraulic engineer with Abel & Brown Pty Ltd.
(g)Expert report of Ross Brown dated 7 September 2022 (Second Brown Report).[105]
(h)Expert report of Dennis Stephenson on behalf of Diagnostech Pty Ltd dated 9 September 2022 (Diagnostech Report).[106] Mr Stephenson is the Managing Director of Diagnostech and has over 30 years’ experience in the construction and remedial building industry. He has an Advanced Diploma in Construction Management, is a qualified building supervisor and an accredited E1 Certifier. He also has qualifications in waterproofing, plastering, corrosion and protection of reinforced concrete and occupational health and safety.
(i)Expert report of Don McInnes on behalf of Sellick Consultants Pty Ltd (Sellick) dated 29 April 2022 (Sellick Report).[107] Mr McInnes is a structural engineer who ran Sellick from 1991 until his retirement about two years ago. He is currently a project director for Sellick.
[98] Exhibit A2
[99] Witness Statement of Kurt Meier dated 16 December 2022 at [4]
[100] Exhibit A4
[101] Exhibit A3
[102] Exhibit A6
[103] Exhibit A5
[104] Exhibit R5
[105] Exhibit R6
[106] Exhibit R4, entitled ‘Supplementary Building Defects Report’
[107] Exhibit PJ1, entitled ‘Inspection Report: Structural Review of Townhouses ‘Lido’
62.Insofar as they referenced primary materials, the experts relied upon the Building Code of Australia 2009, Vol 1, Class 2-9 Buildings (the Relevant BCA Requirements) and the Guide to Standards and Tolerances 2007[108] (the Guide to Standards and Tolerances 2007).
Defect 1: Structural and Façade Issues
[108] Guide to Standards and Tolerances 2007 developed by the Victorian Building Commission et al
63.This is described in the rectification order as Defect 1 – Structural Provisions.[109]
Whether there was cracking in the walls, ceilings and floors of the structure
[109] Tribunal documents, page 10
64.The Diagnostech Report identified the following cracks in the units:
(a)Unit 2, crack in wall lining greater than 1mm above the entrance door.[110]
[110] Diagnostech Report dated 2 September 2022 at [7.2.1.4], page 16
(b)Unit 2, crack in wall lining greater than 2mm in the kitchen.[111]
[111] Diagnostech Report dated 2 September 2022 at [7.2.1.4], page 16
(c)Unit 2, crack in wall lining greater than 1mm above the door of bedroom 1.[112]
(d)Unit 3, large diagonal crack in the wall lining greater than 2mm in the entrance lobby.[113]
(e)Unit 3, cracked tiles along the door threshold to bedroom 2.[114]
(f)Unit 4, crack in living room wall greater than 2mm. It was noted that this wall is common to bedroom 2.[115]
(g)Unit 4, crack in the ceiling and wall lining of the entrance stairwell greater than 1mm.[116]
(h)Unit 10, crack in the wall lining above the north terrace access door in the living room greater than 1mm.[117]
(i)Unit 10, crack in the wall lining above the laundry door greater than 1mm.[118]
(j)Unit 10, crack in the wall lining above the door to bedroom 1 on the level two landing.[119]
(k)Unit 12, crack in the wall above the entrance door in the entrance lobby greater than 3mm.[120]
(l)Unit 13, two cracked floor tiles in the entrance stairwell.[121]
[112] Diagnostech Report dated 2 September 2022 at [7.2.1.4], page 16
[113] Diagnostech Report dated 2 September 2022 at [7.2.1.4], page 16
[114] Diagnostech Report dated 2 September 2022 at [7.2.1.4], page 16
[115] Diagnostech Report dated 2 September 2022 at [7.2.1.4], page 16
[116] Diagnostech Report dated 2 September 2022 at [7.2.1.4], page 16
[117] Diagnostech Report dated 2 September 2022 at [7.2.1.4], page 16
[118] Diagnostech Report dated 2 September 2022 at [7.2.1.4], page 16
[119] Diagnostech Report dated 2 September 2022 at [7.2.1.4], page 16
[120] Diagnostech Report dated 2 September 2022 at [7.2.1.4], page 16
[121] Diagnostech Report dated 2 September 2022 at [7.2.1.4], page 16
65.The Diagnostech Report quoted Section 9.15 of the Guide to Standards and Tolerances 2007: Cracking in plasterboard, hard plaster and other plaster elements:
Cracking in walls, ceilings and bulkheads that is greater than 1mm is a defect if it is visible from a normal viewing point.[122]
[122] Diagnostech Report dated 2 September 2022 at [7.2.1.3], page 15, [quoting Guide to Standards and Tolerances 2007 (Vic), page 44]
66.Mr Stephenson also identified cracks greater than 2mm in the basement floor slab.[123] The Diagnostech Report quoted Section 1 of the Guide to Standards and Tolerances 2007:
Cracking in concrete … paving, patios, driveways, etc where the Builder did not make allowances for shrinkage or general movement of the concrete shall be assessed in accordance with table 1.01 and is defective where the limits in that table are exceeded – crack width 1.5 mm.[124]
[123] Diagnostech Report dated 2 September 2022 at [7.4.2], page 46
[124] Diagnostech Report dated 2 September 2022 at [7.4.2.3], page 48, [quoting Guide to Standards and Tolerances 2007 (Vic), page 16]
67.Mr Stephenson identified another structural issue impacting the walls, which was the excessive settlement and footing displacement of unit 10.[125] Unit 10 is the only unit with footings partly on the ground and partly on the carpark basement. In total 12 defects, relating to building movement, including a 10mm crack and three 5mm cracks, were identified.[126]
[125] Diagnostech Report dated 2 September 2022 at [7.2.5], page 25
[126] Diagnostech Report dated 2 September 2022 at [7.2.5.4], pages 29-30
68.Façade cracking was also identified. The Diagnostech Report noted 32 issues,[127] all of which involved cracking. Four cracks were over 4mm wide. There was evidence of drummy render is several areas.[128] Cracks were also identified in the common walls, the concrete kerbs to the basement carpark driveway and a crack greater than 5mm was identified in a masonry planter box wall adjacent to unit 3.[129] The Diagnostech Report quoted the Guide to Standards and Tolerances 2007 as follows:
(a) Section 3.10, Cracked Masonry Units – “a masonry unit is defective when visible surface cracks exceed a width of 2mm”.[130]
(b) Section 9.01, Cracking in External Rendered Surfaces – “crack greater than 1mm is a defect”.[131]
[127] Diagnostech Report dated 2 September 2022 at [7.3.1.4], pages 34-36
[128] For example, Diagnostech Report dated 2 September 2022 at Appendix A, page 24 of 37, Items 138 and 139
[129] Diagnostech Report dated 2 September 2022 at [7.5.1.4], page 52
[130] Diagnostech Report dated 2 September 2022 at [7.5.1.3], page 52, quoting Guide to Standards and Tolerances 2007 (Vic), page 26]
[131] Diagnostech Report dated 2 September 2022 at [7.5.1.3], page 52, [quoting Guide to Standards and Tolerances 2007 (Vic), pages 20 and 41]
69.The applicant submitted that there were no cracks in the plasterboard when the Certificate of Occupancy and Use was issued nor were there cracks during the three month maintenance period.[132] He also indicated that he had no way of determining what caused the cracking at Lido.[133] However, he understood from industry knowledge that it is not uncommon for plasterboard in walls and ceilings to crack in new buildings due to settlement.[134] Other potential causes include failure by the occupier or management company to carry out regular maintenance work or address accidental damage in a timely manner.[135] He anticipated that it would not be difficult or expensive for the owners of the relevant units to conduct remedial repairs (patching and painting).[136]
(2)The rectification order may also require the entity to give the registrar written information about a thing required to be done under the order. …
(3)However, a rectification order need not state how a thing required to be done under the order is to be done. …
(4)Subsection (5) applies if—
(a) the order requires the entity to do a thing; and
(b) the entity—
(i)is not licensed, authorised or qualified to do the thing; or
(ii)if a licence, authorisation or qualification is not required to do the thing—does not have appropriate experience and skill to do the thing.
(5)The entity must arrange, and pay for, the thing to be done by someone who—
(a) is licensed, authorised or qualified to do the thing; or
(b) if a licence, authorisation or qualification is not required to do the thing—has appropriate experience and skill to do the thing.
(6)The rectification order must state a period within which what is required to be done must be done.
(7)The stated period for a rectification order other than an emergency rectification order must not be less than 1 month after the day the rectification order is given to the entity. …
(8)A copy of the rectification order must be given to the land owner.
2.‘building work’, ‘nominee’ and ‘supervise’ are defined in the Dictionary of COLA as follows:
a.building work—see the Building Act 2004, section 6.
b.nominee, of a corporation or partnership, means a person who is appointed as a nominee of the corporation or partnership under section 28
c.supervise includes direct
Building Act
6Meaning of building work
(1)In this Act:
building work means—
(a) work in relation to the erection, alteration or demolition of a
building, and includes disposal of waste materials generated—(i)by the alteration of a building other than a building
excluded under the regulations; or(ii)by the demolition of a building (but not part of the
building); or
(b) work in relation to repairs of a structural nature to a building.
7Meaning of building
(1)In this Act:
building includes—
(a) a structure on or attached to land; and
(b) an addition to a building; and
(c) a structure attached to a building; and
(d) fixtures; and
(e) part of a building, whether the building is completed or not.
42Requirements for carrying out building work
(1)Building work must not be carried out except in accordance with the
following requirements:(a) the materials used in the building work must comply with the
standards under the building code for the materials in buildings
of the kind being built or altered;(b) the way the materials are used in the building work must comply
with their acceptable use under the building code for buildings
of the kind being built or altered;(c) the building work must be carried out in a proper and skilful
way; …(d) for building work that requires building approval under
division 3.3, the building work—(i)must be carried out in accordance with approved plans; or
(ii)if plans have not been approved for the building work—
must not be carried out; …
(f) for building work required to be done only by a licensed
builder—(i)the building work must be carried out by or under the
supervision of the builder mentioned in the building
commencement notice; and(ii)the builder’s licence must authorise the doing of the
building work;
(g) the building licensee in charge of the building work must take—
(i)all the safety precautions stated in or with the application
for the building approval; and(ii)any other safety precaution that a certifier or building
inspector may require the building licensee to take under
section 46.
(2)The regulations may prescribe considerations to be taken into account to decide whether building work is carried out in a proper and skilful way.
49Complying with building code
(1)A person commits an offence if the person—
(a) is a licensed builder; and
(b) carries out building work; and
(c) either—
(i)knows the building work does not, or will not, result in a
building that complies with the building code; or(ii)is reckless about whether the building work does or will
result in a building that complies with the building code.
Maximum penalty: 500 penalty units, imprisonment for 5 years or
both.(2)A person commits an offence if—
(a) the person is a licensed builder; and
(b) the person carries out building work; and
(c) the building work does not, or will not, result in a building that
complies with the building code.Maximum penalty: 50 penalty units.
(3)An offence against subsection (2) is a strict liability offence.
(4)For an offence against subsection (2), building work is taken not to result in a building that complies with the building code if, for any provision of the building code with which the building must comply—
(a) the building does not, or will not, comply with the
deemed-to-satisfy provision of the building code; and(b) the approved plans for the building work do not state a
performance solution under the building code(5)A person commits an offence if the person—
(a) carries out building work; and
(b) intends to carry out the building work in a way that will not
result in a building that complies with the building code.Maximum penalty: 300 penalty units, imprisonment for 3 years or
both.(6)For this section, building work is taken to result in a building that
complies with the building code if—(a) the building complies with the building code as in force at the
time the approved plans for the building work were approved;or
(b) if there are no approved plans for the building work or approved
plans are not required for the building work—the building
complies with the building code as in force at the time the
building work is carried out.
136Building code
(1)In this Act:
building code means—
(a) the Building Code of Australia prepared and published by the
Australian Building Codes Board as amended from time to time
by—(i)the Australian Building Codes Board; and
(ii)the Australian Capital Territory Appendix to the Building
Code of Australia; and
(b) a document prescribed by regulation.
Annexure 2
The terms of the rectification order
1.Under section 38 of the Construction Occupations (Licensing) Act 2004 (COL Act), I order you, Kurt Meier, to take the stated actions as described in Section 4 of this order to rectify the defects identified in Section 3 done as part of a construction service at Block 32 Section 52 Lyons …. (the premises).
Section 1 – Background
2.On 11 March 2021 the Deputy Construction Occupations Registrar (Deputy Registrar) issued you with a Notice of Intention (NOI) to issue a rectification order to you, Kurt Meier, as nominee for Meier Constructions Pty Ltd (ABN: 47137401006) (Meier Constructions), in relation to construction services provided by Meier Constructions at the premises.
3.The NOI was issued to you as the licensee that provided the construction service at the premises to which the NOI relates. You are a licensee as:
a.you hold a Class B Builder licence (Licence No 19741029).
b.you were appointed as the nominee for Meier Constructions builders’ licence on 9 June 2009; and
c.you were listed as the nominee for the construction services provided by Meier Constructions at the premises.
4.Your role as nominee was to supervise the construction services provided by Meier Constructions at the premises and ensure the construction services complied with the COL Act and associated operational Acts (including the Building Act).
5.A Certificate of Occupancy and Use was issued for the premises on 17 June 2011 (Attachment A).
6.On 15 May 2012, the Registrar received a complaint regrading external and internal deterioration of building elements, undue dampness, and unhealthy conditions for occupants of the property.
7.On 12 December 2013 the Registrar received a building report prepared by Mr John Palmer of Building Durability Pty Ltd identifying major defects in relation to the property.
8.During May 2018, Access Canberra received further complaints from residents of the building relating to major defects in the property.
9.Access Canberra commissioned Mr Darren Sweetnam of Diagnostech Remedial Building Consultants to inspect the property and outline current observable defects.
10.Diagnostech’s report dated 7 March 2019 revealed several defects (Diagnostech report), which evidenced a construction service provided otherwise than in accordance with the applicable Building Code of Australia (BCA).[377] …
[377] Tribunal documents, pages 8-16
Section 2 – Decision to Issue a Rectification Order …
Section 3 – Defects requiring Rectification …
Defect 1 – Structural provisions …
Defect 2 – Weatherproofing …
Defect 3 – Storm water drainage (tie in) not adequate for development …
Section 4 – Rectifying Identified Defects …
Section 5 – Failure to comply with the rectification order …
Section 6 – Further information …
0
9
5