Victorian Building Authority v May21 Pty Ltd - [2024] VSCA 150

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0060

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

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JUDGES:	EMERTON ACJ, NIALL and OSBORN JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	13 June 2024
DATE OF JUDGMENT:	28 June 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 150
JUDGMENT APPEALED FROM:	[2023] VSC 203 (Stynes J)

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BUILDING AND CONSTRUCTION – Statutory construction – Application for leave to appeal from decision of trial division judge on an application for judicial review of a determination of the Building Appeals Board – Dispute with respect to the basis of an estimate utilised to calculate a levy imposed on a building permit – Whether judge erred in holding that where a contract price is specified in an application for a staged building permit pursuant to s 205H(1A)(a) of the Building Act 1993, the relevant building surveyor is not required to estimate the cost of the whole of the building work (including labour and materials) under s 205I(2)(a)(i) of the Act by reference only to the specified contract price – Matters to which a relevant building surveyor may have regard – Meaning of ‘having regard to’ – Relevant building surveyor not required to treat contract price for the building work as the exclusive basis for the estimation – No error – Leave to appeal refused.

Building Act 1993, ss 205G, 205H(1), 205H(1A), 205HA, 205I(2)(a)(i), 205L.

Obian v The King [2024] HCA 18, R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322, considered; Manns v Kennedy [2007] NSWCA 217, referred to.

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Counsel
Applicant:		Mr P Hanks KC with Mr G Ayres
First and Second Respondents:		Mr JAF Twigg KC with Mr CFE Dawlings
Third Respondent:		No appearance
Fourth Respondent:		No appearance
Solicitors
Applicant:	Weir Legal and Consulting
First and Second Respondents:	Moray and Agnew
Third Respondent:	Victorian Government Solicitor
Fourth Respondent:	Lander & Rogers

EMERTON ACJ
NIALL JA
OSBORN JA:

Introduction

This is an application for leave to appeal with respect to a decision of Stynes J on an application for judicial review of a determination of the Building Appeals Board (the ‘Board’).
The Board had before it a dispute with respect to the basis of an estimate utilised to calculate a levy imposed upon a building permit pursuant to pt 12 sub‑div 4 of the Building Act 1993 (the ‘Act’).
Upon receipt of an application for a staged building permit, the Act requires the relevant building surveyor in part to estimate ‘the cost of the whole of the building work (including the cost of labour and materials)’.[1]
[1]Building Act 1993, s 205I(2)(a) (‘Act’).
The estimate must be made having regard to the information contained in the building permit application[2] which must— (a) specify the contract price for the whole of the building work (including the cost of…

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: [2024] VSCA 150
Decision Date: 28 June 2024

CaseChat Overview and Summary

In the case of Victorian Building Authority v May21 Pty Ltd, the appellant, May21 Pty Ltd, sought leave to appeal against the decision of a trial division judge who had dismissed its application for judicial review of a determination of the Building Appeals Board. The primary dispute centred on the basis for calculating a levy imposed on a building permit, specifically the estimate of the cost of building work for the purposes of determining the levy. The matter was heard in the Supreme Court of Victoria.

The legal issues before the court involved the interpretation of sections 205H(1A)(a) and 205I(2)(a)(i) of the Building Act 1993. The central question was whether a relevant building surveyor was mandated to base their estimate solely on the contract price specified in an application for a staged building permit. Additionally, the court examined the phrase "having regard to" in section 205I(2)(a)(i) and the permissible matters a surveyor could consider when making an estimate.

The court ruled that there was no error in the judge's interpretation of the statutory provisions. The court held that the Building Act did not require a surveyor to treat the contract price as the exclusive basis for their estimate, and that they could consider other relevant factors. The phrase "having regard to" permitted a broader consideration of matters than a strict adherence to the contract price alone. Consequently, the court found no grounds for the leave to appeal and dismissed the application.

The court's final order was that the application for leave to appeal be refused.

Orders