Wood v Construction Occupations Registrar (Appeal)

Case •

[2024] ACAT 23

•

5 March 2024

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

WOOD v CONSTRUCTION OCCUPATIONS REGISTRAR (Appeal) [2024] ACAT 23

AA 39/2023 (AT 49/2023)

Catchwords:               APPEAL – administrative review – review of administrative decision to refuse an owner-builder licence – whether condition for grant of licence, namely the appellant was an owner of the land on which the proposed work was to be done is met, notwithstanding title search recording a company as the owner of the land – whether the applicant is an owner, pursuant to s184A of the Legislation Act 2001, because the appellant (as a director of the company) exercises functions of the company – consideration of s 184A – applicant is not an owner – no connection between the appellant exercising functions on behalf of the company and the company’s ownership of the land – appeal dismissed

Legislation cited:        Construction Occupations (Licensing) Act 2004 s 17

Legislation Act 2001 s 184A

Subordinate

Legislation cited:        Construction Occupations (Licensing) Regulation 2004 s 16

Tribunal:Presidential Member G McCarthy

Member M Hanna

Date of Orders:  5 March 2024

Date of Reasons for Decision:      5 March 2024

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          AA 39/2023

BETWEEN:

DUNCAN LEONARD WOOD
Appellant

AND:

CONSTRUCTION OCCUPATIONS REGISTRAR
Respondent

APPEAL TRIBUNAL:        Presidential Member G McCarthy

Member M Hanna

DATE:5 March 2024

ORDER

The Tribunal orders:

  1. Appeal dismissed.

    ………………………………..

Presidential Member G McCarthy
For and on behalf of the Appeal Tribunal

REASONS FOR DECISION

  1. This appeal concerns the respondent’s decision made on 5 June 2023 to refuse to issue the appellant with an owner-builder licence pursuant to section 17 of the Construction Occupations (Licensing) Act 2004 (the COL Act).

  2. Among other requirements to be issued with an owner-builder licence, section 16(1)(a) of the Construction Occupations (Licensing) Regulation 2004 (the COL Regulation) provides:

    16 Eligibility to be owner-builder
    (1) An individual is eligible to be an owner-builder only if—
    (a) the individual owns the land where the building work allowed under the owner-builders licence is proposed to be undertaken; and
    (b) the building work has building approval under the Building Act 2004; and

    (c) the individual has not been issued with an owner-builders licence in relation to other land (a previous licence) in the 5 years before applying for the owner-builders licence (the current licence).

  3. An “individual” is defined in the Dictionary to the Legislation Act 2001 (the Legislation Act) to mean “a natural person”.

  4. A title search records the land on which the appellant wanted to undertake the proposed building work (the land) is owned solely by a company, Total Messaging Service Pty Ltd (TMS), not the appellant. The respondent decided the appellant did not own the land and therefore refused the appellant’s application for an owner-builder licence.

  5. The appellant applied to the Tribunal for review of the respondent’s decision. He relied on sections 168 and 184A of the Legislation Act to contend he is an owner of the land and, being an individual, section 16(1)(a) of the COL Regulation is met. The original tribunal disagreed and, for that reason, confirmed the decision under review.

  6. On appeal, the appellant submitted the original tribunal incorrectly construed and applied section 184A and that, properly construed, section 184A(1) causes him to be an owner of the land.

The appellant’s submissions

  1. The appellant’s argument involved a series of steps culminating in a conclusion, he said, that the title search regarding the land should be construed or understood as including him as an owner of the land in addition to TMS.

  2. He began with the proposition that the title search constitutes a statutory instrument. He then submitted a statutory instrument is “a law”, citing section182 of the Legislation Act, which in turn engaged section 184A which provides:

    184A References to entity
    (1) In a law, a reference to an entity includes a reference to a person exercising a function of the entity, whether under a delegation, subdelegation or otherwise.

    (2) To remove any doubt, this section applies to all entities, whether or not in or for the Territory, including entities established under a law of another jurisdiction.

  3. In summary, as we understood it, the appellant submitted TMS is “an entity” for the purposes of the title search (it being “a law”). He then submitted that because he is a director of TMS,[1] he is therefore a person “exercising a function of the entity” and therefore, pursuant to section 184A(1), he is himself “included” as an entity for the purposes of the title search and is therefore an owner of the land in addition to TMS.

    [1] The appellant and his wife are the directors and shareholders of TMS

  4. Returning to section 16(1)(a) of the COL Regulation, the appellant then submitted that because he is an individual and an owner of the land section 16(1)(a) is met. He then submitted that because the respondent agreed, he said, that all other preconditions or requirements for him to be issued an owner-builder licence were met, so the decision under review should have been set aside by the original tribunal and the licence issued together with compensation for building costs incurred by the appellant in the expectation a licence would be issued.

Respondent’s submissions

  1. The respondent accepted the land title search “is capable of coming within the definition of a statutory instrument”.[2] The respondent accepted too that an “entity” for the purposes of section 184A(1) includes “a corporation established under, a law as well as a person occupying a statutory position”.[3] We understood this to mean, appropriately, an acceptance that TMS is an entity for the purposes of section 184A(1) and that the appellant, as a director of TMS, exercises functions on behalf of TMS.

    [2] Respondent's submissions dated 24 January 2024 at [18]

    [3] Respondent's submissions dated 24 January 2024 at [19]

  2. The respondent disagreed, however, that section 184A(1) causes the appellant, personally, also to hold rights held by TMS or to impose on the appellant, personally, duties or obligations imposed on TMS.

  3. The respondent submitted section 184A(1) is to ensure the functions of the entity (in this case, TMS) “are not avoided simply by the fact that those functions are exercised by someone for, on behalf and in the name of the entity. In other words, [pursuant to section 184A(1), the applicable] law applies to the delegate [or subdelegate] as if it were the entity when [the delegate or subdelegate] is performing the functions of the entity.”[4]

    [4] Respondent's submissions dated 24 January 2024 at [21]

  4. In support, the respondent noted section 184A(1) was inserted into the Legislation Act by the Statute Law Amendment Act 2005. The respondent referred to the explanatory note to the provision inserting section 184A(1) which states:

    This amendment inserts a new section to make it clear that a reference in an ACT law to an entity established otherwise than under ACT law includes a reference to a person exercising a function of the entity, whether under a delegation, subdelegation or otherwise. The Legislation Act, section 239(2) already deals with delegates and subdelegates of entities established under ACT law. The amendment complements the amendments of section 185.

  5. The respondent then noted section 239 of the Legislation Act, which states:

    239 Exercise of delegation by delegate
    (1) A delegate must exercise the delegation subject to any conditions, limitations or directions in the instrument making or evidencing the delegation.
    (2) All territory laws apply to the delegate in the exercise of the delegation as if the delegate were the appointer.
    (3) Without limiting subsection (2), if the exercise of a function by the appointer is dependent on the appointer’s state of mind and the function is delegated, the function may be exercised by the delegate on the delegate’s state of mind.
    (4) Anything done by or in relation to the delegate in the exercise of the delegation is taken to have been done by or in relation to the appointer.
    Note 1 Section 94 provides that a delegation under a law that is in force immediately before an amendment of the law continues to have effect as if made under the amended law.
    Note 2 Section 196 gives a delegate the powers necessary or convenient to exercise a delegated function.
    (5) In this section:

    state of mind includes knowledge, intention, opinion, belief or purpose.

  6. Taking these legislative provisions, the respondent submitted section 184A(1) cannot be applied to a title search. The respondent submitted that for the reference to TMS to include any delegate exercising the functions of TMS, such as the appellant, would have “far-reaching, unintended, and chaotic consequences for the land titles system, and the law concerning body corporates.”[5]

Consideration

[5] Respondent's submissions dated 24 January 2024 at [26]

  1. Section 16(1)(a) of the COL Regulation is directed to ownership of land. It requires, as a fact, that the “individual” applying for the owner-builder licence be the owner of the land on which the proposed work is to occur. It does not involve the doing of anything by anyone.

  2. Section 184A(1), meanwhile, is directed to a person “exercising a function” of the entity. It entails the concept that when a person is “exercising” a function, or doing something, on behalf of the entity (pursuant to a delegation or otherwise), the entity is taken to have exercised that function or done the thing that the entity is required or authorised to do under the “law” in which the entity is identified.

  3. The appellant submitted that section 184A(1) “is only talking about a reference to the entity, and not whether that entity is exercising any function, the person (ie a delegate), only needs to be authorised to exercise a function.”[6]

    [6] Further written submissions of the appellant sent by email on 27 February 2024

  4. With respect, and fatal to the appellant’s argument, that submission is contradicted by the words in section 184A(1) regarding the person, namely “exercising a function” – not “authorised to exercise a function”. In other words, section 184A(1) does not extend the meaning of entity to a person for all purposes simply because the person is authorised to exercise a function on behalf of the entity. The “person” is included only if and when the person is “exercising a function” on behalf the entity and only in the context of the law requiring the exercise of the function by the entity.

  5. For example, if an entity is required or authorised under a law to register for a benefit or apply for a licence or provide information, for the purposes of that “law” section 184A(1) means the entity is taken to have done so if a person exercises that function pursuant to a delegation (or otherwise) on behalf the entity.

  6. None of this has anything to do with ownership, which is a static legal fact. In particular, referring to section 184A(1), ownership does not involve a person exercising a function on behalf of anybody. It is a status obtained consequent on a process. True, a director might conduct the process on behalf of a company, but section 184A(1) could only validate the process not the resulting ownership. It follows that section 184A(1) is irrelevant for the purposes of section 16(1)(a) of the COL Regulation which is solely concerned with ownership.

  7. Applying that principle to the facts in this case, TMS owns the land as recorded on the title search. The appellant’s position as a director of TMS has no bearing on TMS’s ownership of the land: TMS is a separate legal entity from the appellant. Section 184A(1) arguably assisted by validating functions the appellant exercised on behalf of TMS to cause TMS to become the owner of the land, but it does not assist the appellant also to be an owner of the land.

  8. In the original hearing, the appellant relied also on section 168 of the Legislation Act to contend section 16(1)(a) is met. On appeal, the appellant did not press that claim. He stated that if his submission with reliance on section 184A(1) does not succeed, he accepted that an argument with reliance on section 168 could not succeed. We have therefore not considered section 168 further.

    ………………………………..

Presidential Member G McCarthy

For and on behalf of the Appeal Tribunal

Date of hearing: 27 February 2024
Appellant: Self-represented
Counsel for the Respondent: Mr N Oram
Solicitors for the Respondent: ACT Government Solicitor

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