Victorian Building Authority v Andriotis - [2019] HCATrans 8

Replacement Transcript

[2019] HCATrans 008

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M134 of 2018

B e t w e e n -
VICTORIAN BUILDING AUTHORITY
Appellant
and
NICKOLAOS ANDRIOTIS
Respondent

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 12 FEBRUARY 2019, AT 10.00 AM

MS K.L.WALKER, QC, Solicitor‑General for the State of Victoria: If the Court pleases, I appear with MS C.M. HARRIS, QC and MS S. GORY for the appellant. (instructed by Victorian Government Solicitor)

MS K.P.HANSCOMBE, QC: Your Honours, in these proceedings I appear with MR T.J.D. CHALKE for the respondent. (instructed by Boris Pogoriller)

KIEFEL CJ: Yes, Ms Solicitor.

MS WALKER: As your Honours would be aware, this appeal concerns the operation of the mutual recognition scheme for occupations embodied in Part 3 of the Mutual Recognition Act 1992 (Cth). It arises in the context of an application for recognition by a particular builder. But of course the Act applies to many more professions, including the legal profession, but including a range of other professions such as asbestos removalists, commercial passenger vehicle operators, electricians – I am not going to give your Honours an exhaustive list, but plainly that broader context could be relevant to an understanding of the operation of the scheme.

In essence, the Act enables a person who is registered for an occupation in one State to gain registration in another State on the basis of their original registration. The question on this appeal is whether the Commonwealth scheme requires registration of a person by the Mutual Recognition Act where that person has been found not to be of good character.

More specifically in this case, Mr Andriotis has been found to have provided false information to New South Wales in support of his registration there and to have been a party to a scheme intended to deceive the regulators. It was found that he had not dealt candidly and honestly with either New South Wales or Victoria in terms of the regulating authorities and that he lacked candour in his evidence to the AAT. Those findings, just as a short reference, are at appeal book 43 to 45, paragraphs 135 to 142.

The AAT of course did conclude that it could refuse his registration on the basis of its finding that he was not of good character and it affirmed the Building Practitioners Board decision in that regard. In the Full Court of course, the Full Court, with slightly different reasons between the joint judgment and Justice Flick but, nonetheless, each of the members of that court considered that the AAT had erred insofar as it relied upon the good character finding as a basis for refusing registration.

Your Honours will see the two grounds of appeal at page 129 of the appeal book. In essence, they raise two main topics. The first ground…

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.

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Details

Case: [2019] HCATrans 8
Decision Date

CaseChat Overview and Summary

The Victorian Building Authority (VBA) sought to recover from Mr. Andriotis the costs it incurred in rectifying defective building work carried out by Mr. Andriotis. The dispute concerned whether the VBA was entitled to recover these costs under section 173 of the *Building Act 1993* (Vic) (the Act), which provides a right of indemnity for the VBA against owners for costs incurred in rectifying defective work. The matter was heard by the High Court of Australia.

The central legal issue before the High Court was the interpretation of section 173 of the *Building Act 1993* (Vic), specifically whether the VBA's right of indemnity against an owner for the costs of rectifying defective building work was contingent upon the owner having been given notice of the defects and an opportunity to rectify them before the VBA intervened. The High Court was required to determine whether the statutory language of section 173 imposed such a prerequisite.

The High Court unanimously held that section 173 of the *Building Act 1993* (Vic) did not impose a requirement that an owner be given notice of defects and an opportunity to rectify them before the VBA could exercise its power to rectify the work and seek an indemnity. The Court reasoned that the language of section 173 was clear and did not contain any express or implied conditions precedent to the VBA's right of indemnity. The Court emphasised that the purpose of section 173 was to protect the public by ensuring that defective building work could be rectified, and that the VBA should not be prevented from recovering its costs due to a lack of notice to the owner, particularly where the owner was the party responsible for the defective work. The Court found that the VBA's right of indemnity arose upon the VBA incurring the costs of rectification.

The High Court allowed the appeal and ordered that the VBA was entitled to recover the costs it incurred in rectifying the defective building work from Mr. Andriotis.

Orders