Yao v Aude Development Pty Ltd

[2022] SADC 123

District Court of South Australia

(Civil)

YAO v AUDE DEVELOPMENT PTY LTD

[2022] SADC 123

Judgment of his Honour Judge Durrant  

12 October 2022

CONVEYANCING - THE CONTRACT AND CONDITIONS OF SALE - GENERALLY - CONDITIONS PRECEDENT AND SUBSEQUENT

By a written contract the parties agreed to the sale and purchase of land and prior to settlement the construction of a house on the land. The contract was subject to performance of a special condition pursuant to which the respondent would provide to the applicant a Certificate of Practical Completion in respect of the house signed by a Licensed Builder. The respondent provided a Certificate of Practical Completion in the form of a statement of compliance. It was agreed that provision of a statement of compliance could perform the special condition but it was disputed that the statement provided did perform the special condition.

Held:

(1) The statement of compliance provided certified the Practical Completion of the house and had been signed by the Licensed Builder, such as to perform the special condition.

(2) The applicant had failed to settle the contract for the sale and purchase of land and the respondent had lawfully terminated the contract.

Development Act 1993 (SA) s 45; Planning, Development and Infrastructure Act 2016 (SA) s 146; Building Work Contractors Act 1995 (SA) s 32, referred to.
Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; Abergeldie Contractors Pty Ltd v Fairfield City Council [2017] NSWCA 113; Mears v Costplan Services (South East) Ltd [2019] EWCA 502, considered.

YAO v AUDE DEVELOPMENT PTY LTD
[2022] SADC 123

Nature of this Action and Reasons

1. The parties elected to transfer this action to the Fast Track List and these reasons, following a Fast Track trial, are in the Fast Track form.[1]

   [1]    Uniform Civil Rule 316; Record of Outcome FDN13.

   Significant Background

2. On 28 May 2019, the applicant Ms Yanyi Yao and the respondent Aude Development Pty Ltd executed an Agreement for Sale and Purchase of Land (the Agreement).[2] The parties agreed that Aude Development had to procure, before settlement, the building of a house on the subject land located at 11 Newman St, Magill (the land).[3]

   [2]    Exhibit A1, Agreement for the Sale and Purchase of Land dated 28 May 2019; List of Issues and Agreed Facts – Statement of Agreed Facts, [1].

   [3]    List of Issues and Agreed Facts – Statement of Agreed Facts, [2].

3. The Agreement was subject to the performance of a Special Condition whereby a ‘Certificate of Practical Completion must be signed by Licensed Builder and must be provided to Purchaser prior to settlement’.[4] While the parties did not define the term ‘Certificate of Practical Completion’, it is an agreed fact for that purpose that ‘[t]he parties meant “statement of compliance’…(although the parties do not agree whether such statement should be provided under Development Act 1993 (SA) or Planning, Development and Infrastructure Act 2016 (SA))’.[5]

   [4]    Exhibit A1, Agreement for the Sale and Purchase of Land dated 28 May 2019, cl 16, Items 8 and 18.

   [5]    List of Issues and Agreed Facts – Statement of Agreed Facts, [7].

4. On 12 January 2022, the conveyancer for Aude Development provided Ms Yao a ‘Statement of Compliance…[p]ursuant to Regulation 83AB of the Development Act’[6] The dispute in this case is whether provision of that statement performed the Special Condition.[7] If it did, it is accepted that Ms Yao has failed to settle and the Agreement has been terminated.[8]

   [6]    Development Regulations 2008, r83AB; Exhibit A2, Statement of Compliance dated 4 January 2022.

   [7]    List of Issues and Agreed Facts- List of Issues, [1]; Exhibit A1, Agreement for sale and purchase of land dated 28 May 2019, cl16, Item 18.

   [8]    Exhibit A5, Letter LG Conveyancing to Ms Yao dated 9 May 2022; T5.7-29. 

   Uncontested Matters

5. Facts and documents were agreed for the purpose of the trial as follows.[9]

   Documents

   [9] List of Issues and Agreed Facts; Exhibit A1, Agreement for Sale and Purchase of Land dated 28 May 2019; Exhibit A2, Statement of Compliance dated 4 January 2022; Exhibit A3, Extract of building licence Wei Yuan; Exhibit A4, Letter LG Conveyancing to Ms Yao dated 7 April 2022; Exhibit A5, Letter LG Conveyancing to Ms Yao dated 9 May 2022; Exhibit R6, Statement of Compliance under Planning, Development and Infrastructure Act 2016.

6. Exhibit A1, Agreement for Sale and Purchase of Land dated 28 May 2019; Exhibit A2, Statement of Compliance dated 4 January 2022; Exhibit A3, Extract of building licence Wei Yuan; Exhibit A4, Letter LG Conveyancing to Ms Yao dated 7 April 2022; Exhibit A5, letter LG Conveyancing to Ms Yao dated 9 May 2022; Exhibit R6, Statement of Compliance under PDI Act.

   Agreed Facts

7. On 28 May 2019, Ms Yao and Aude Development entered into the Agreement being Exhibit A1 (Agreed Fact 1).[10]

   [10] Exhibit A1, Agreement for Sale and Purchase of Land dated 28 May 2019.

8. The Agreement was for the purchase of a house and land and Aude Development was required to procure the building of a house on the land before settlement (Agreed Fact 2).

9. The building works on the land are practically complete (Agreed Fact 3).

10. Paragraph 1, Item 18 (Special Conditions) of the Agreement provides that ‘Certificate of Practical Completion must be signed by Licensed Builder; and must be provided to Purchaser prior settlement’ (Agreed Fact 4).

11. Clause 16.1 of the Agreement provides that the Agreement is subject to the performance of the Special Conditions including the Special Condition described in Agreed Fact 4 (Agreed Fact 5).

12. Certificate of Practical Completion is not defined for the purposes of the Agreement (Agreed Fact 6).

13. The parties meant ‘statement of compliance’ for this purpose (although the parties do not agree whether such statement should be provided under Development Act 1993 (SA) or Planning, Development and Infrastructure Act 2016 (SA)) (Agreed Fact 7).

14. Clause 2.2 of the Agreement provides that ‘A reference to an Act of Parliament includes a regulation, by-law, requisition or order made under that Act and any amendment to or re-enactment of that Act, regulation, by-law, requisition or order from time to time in force’ (Agreed Fact 8).

15. Aude Development’s conveyancer provided a statement of compliance around 12 January 2022 which is Exhibit A2 (Agreed Fact 9).[11]

    [11] Exhibit A2, Statement of Compliance dated 4 January 2022.

16. Mr Wei Yuan signed that statement of compliance. Mr Wei Yuan is a licensed building work supervisor but not a licensed building work contractor per the attached search Exhibit A3 (Agreed Fact 10).[12]

    [12] Exhibit A3, Extract of building licence Wei Yuan.

17. At the time the Agreement was entered into, the relevant legislation was the Development Act 1993 (SA) (now repealed) (Agreed Fact 11).

18. On 4 January 2022, when the statement of compliance was signed and provided, the Planning, Development and Infrastructure Act 2016 (SA) was in force (Agreed Fact 12).

19. Pursuant to Item 8 of the Agreement, Aude Development specified a settlement date of 22 January 2022 (although the parties do not agree whether that settlement date was valid under the terms of the Agreement) (Agreed Fact 13).

20. Ms Yao did not settle on 22 January 2022 (or at any subsequent time) (Agreed Fact 14).

21. Aude Development issued a Notice to Complete on 7 April 2022 which is Exhibit A4 (although the parties do not agree whether that notice to complete was valid under the terms of the Agreement) (Agreed Fact 15).[13]

    [13] Exhibit A4, Letter LG Conveyancing to Ms Yao dated 7 April 2022.

22. Aude Development terminated the agreement on 9 May 2022 by notice from Aude Development’s solicitors which is Exhibit A5 (although the parties do not agree whether that termination was valid under the terms of the Agreement) (Agreed Fact 16).[14]

    [14] Exhibit A5, letter LG Conveyancing to Ms Yao dated 9 May 2022.

23. That the house is a class 1A building for both the purposes of the Development Act 1993, and the Planning, Development and Infrastructure Act 2016, being a two-storey townhouse (Agreed Fact 17).   

    Contested Issues of Fact and Law

24. Ms Yao and Aude Development also agreed a list of contested issues of fact and law:[15]

    [15] Uniform Civil Rule 316.7; List of Issues and Agreed Facts.

    1.On a proper construction of the Agreement for the Sale and Purchase of Land and an Addendum to the Agreement dated 28 May 2019 (Agreement):

    1.1.For the purpose of providing a “Certificate of Practical Completion” in accordance with Item 18:

    1.1.1.does a “Statement of Compliance” issued under the Development Act 1993 (SA) comply; or

    1.1.2.is the “Statement of Compliance” required to be issued under the Planning, Development and Infrastructure Act 2016 (SA).

    1.2.If a “Statement of Compliance” issued under the Development Act 1993 (SA) complies for the purposes of paragraph 1.2:

    1.2.1.Does that Statement of Compliance comply if it is signed by Mr Wei Yuan?

    1.2.2.Does that Statement of Compliance comply if it does not state the licence number of the relevant builder?

    1.2.3.Does that Statement of Compliance comply if it does not state the “description of the building work to which this statement relates”?

    1.2.4.Does that Statement of Compliance comply if it does not state the “date of approval of building work to which the statement related”?

25. Ms Yao submitted the Certificate of Practical Completion had to strictly comply with the format of the statement of compliance published under the Planning, Development and Infrastructure Regulations 2016.[16] Alternatively, Ms Yao submitted, the Certificate of Practical Completion had to strictly comply with the format of a statement of compliance contained in the Development Regulations 1996, and had to be signed by a Licensed Builder, and had to be completed to the extent that the licence number of the relevant builder was inputted, a ‘description of the building work to which th[e] statement relate[d]’ was recorded, and the ‘date of approval of building work to which the statement related’ was stated.[17]

    [16] Planning, Development and Infrastructure Act (Commencement) Proclamation 2017; Planning, Development and Infrastructure Act (Commencement) Proclamation 2019; Development Regulations 1996, R83AB; Planning, Development and Infrastructure Regulations 2016, R104(3); Exhibit A2, Statement of Compliance dated 4 January 2022; Exhibit R6, Statement of Compliance under Planning, Development and Infrastructure Act 2016.

    [17]  Development Regulations 1996, R83AB.

26. Aude Development submitted that a document entitled a statement of compliance would be sufficient if in substance it certified Practical Completion and was signed by a Licensed Builder. Alternatively, Aude Development submitted, if the ‘statement of compliance’ was required to be in the format contained in the Development Regulations 1996,[18] the statement of compliance provided had been effectively completed in that form. 

    [18] Development Regulations 1996, R83AB, Sch 19A.

    Conclusions and findings on contested issues of law and fact

27. The Agreement contains terms and conditions ordinarily expected and commonly found in agreements for the sale and purchase of land.[19] By the addition of a Special Condition and Other Terms and by the annexure of documents, the parties also agreed that Aude Development would procure the construction of a house on the land prior to settlement.[20]

    [19] Exhibit A1, Agreement for Sale and Purchase of Land dated 28 May 2019, cll 1-28, Other Terms- Electronic Conveyancing.

    [20] Exhibit A1, Agreement for Sale and Purchase of Land dated 28 May 2019, Other Terms- Annexure A (Plan of Division), (TurnKey Specifications), Sunset), Annexure B, Annexure C- Building Specifications, Annexure D- Sample By-Laws; List of Issues and Agreed Facts – Statement of Agreed Facts, [2]; The Agreement in Other Terms- Annexure A refers to the clauses set out therein as Special Conditions. Clause 2.1 and Item 19 of the Agreement say that Annexure A contains Other Terms. That is an important distinction because the Agreement is subject only to the Special Conditions in Item 18 albeit that by operation of clause 2.2 of the Agreement to the extent of any inconsistency the Special Conditions and Other Terms prevail.

28. The Special Condition contained in Item 18 protects Ms Yao as the Agreement remains conditional until the provision to Ms Yao by Aude Development of certification by a Licensed Builder that the house on the land is practically complete. Further, Annexure B contains a draft plan of division for the land which must be obtained and the building plans for the construction of the house on the land. Annexure C- Building Specifications to the Agreement attaches photos of bathroom and kitchen fittings, appliances, doors and a list titled ‘Inclusions/Specifications’, which are the specifications for the procured house.[21] Finally, within seven days of the ‘practical complete date’, Ms Yao is entitled to a pre-settlement inspection of the house.[22]

    [21] In respect of those specifications, Other Term 2 authorises Aude Development to procure in its discretion any alteration to or to substitution of items of a similar quality to the standard in the Building Specifications, without the necessity to consult or obtain consent from Ms Yao. In the event of alteration or substitution, Ms Yao agreed she ‘will have no claim upon or resource [sic] against the Vendor in respect of any such alteration variation or substitution nor delay or refuse to settle by reason of any alternation [sic] variation or substitution’.

    [22] While the parties agreed that right to inspect before Settlement, the Agreement is silent as to any consequence of the inspection.

29. The Special Condition and Other Terms contain important capitalised terms which have not been defined in the Agreement; ‘Practical Completion’,[23] ‘Certificate of Practical Completion’,[24] and ‘Licensed Builder’.[25] In construing the Agreement, I must read it whole, objectively, in context and I must determine the meaning of contractual terms by what a reasonable businessperson would have understood those terms to mean.[26]

    [23] Exhibit A1, Agreement for Sale and Purchase of Land dated 28 May 2019, Item 8; See also Other Term 1.9 which uses the term ‘practical complete date’.

    [24] Ibid, Item 18.

    [25] Ibid.

    [26] Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7, [28].

30. The determining issue in this case is whether, for the purpose of providing a Certificate of Practical Completion in accordance with Item 18 of the Agreement, the statement of compliance provided to Mr Yao complied with the Special Condition contained in Item 18. Three alternatives were contended by the parties as to the format of the Certificate of Practical Completion.

31. First, the Certificate of Practical Completion was not required to be in any particular form. Second, the Certificate of Practical Completion was required to be completed in the strict format of a statement of compliance contained in the Development Act 1993, and third, the Certificate of Practical Completion was required to be completed in the strict format of the statement of compliance published under the Planning, Development and Infrastructure Act 2016.[27]

    [27] Planning, Development and Infrastructure Regulations 2016, rr 103H, 104; Exhibit R6, Statement of Compliance under Planning, Development and Infrastructure Act 2016.

32. Aude Development submitted the Agreement and particularly the Special Condition referenced Practical Completion in the sense that term is ordinarily used in building and construction contracts. I have given Practical Completion such ordinary commercial meaning and find that Practical Completion means that stage in the carrying out and completion of building works when the works are complete except for minor defects which do not prevent the works from being reasonably capable of being used for their stated purpose.[28]

    [28] Abergeldie Contractors Pty Ltd v Fairfield City Council [2017] NSWCA 113, [23], [41]- [42], [48]- [49]; Mears v Costplan Services (South East) Ltd [2019] EWCA 502, [14], [74]; see also AS 4000-1997 General Conditions of Contract.

33. In respect of the meaning of the term ‘Licenced Builder’, both parties referred to the licensing regime under the under the Building Work Contractors Act 1995.[29] Ms Yao sought to rely on a distinction between registration and licensing under that Act; while Aude Development submitted that in both cases such a person was licensed.[30] Irrespective of such distinction, the Building Work Contractors Act 1995, does not use or define the term ‘Licensed Builder’. As that is a contractual term only, I have given those words in the Agreement their ordinary meaning: builder means a person who builds houses or other structures;[31] and licence means a permit from an authority to do a particular thing or carry on a trade.[32] On that basis, I find the term ‘Licensed Builder’ in Item 18 of the Agreement means a person who holds a permit from an authority to build houses or other structures.

    [29]  Building Work Contractors Act 1995, Part 3.

    [30] Ibid.

    [31] Compact Oxford Dictionary, Second Edition, Revised, Oxford University Press.  

    [32] Ibid.

34. The first alternative and principal submission of Aude Development is that the Certificate of Practical Completion required no particular form and the statement of compliance provided to Ms Yao both certified Practical Completion and was signed by a Licensed Builder. Whether the provision of the statement in this case performed the Special Condition, submitted Aude Development, was therefore simply a matter of fact. Put another way, Aude submitted that if I find the statement of compliance provided to Ms Yao was both signed by a Licensed Builder and certified Practical Completion, the Special Condition had been performed in this case.

35. I do find that the statement of compliance provided to Ms Yao:[33]

    ·instructed that it ‘need[ed] to be completed and returned to Council following the completion of all building work (with the exception of Class 10 buildings)’…‘[p]ursuant to Regulation 83AB of the Development Act’;

    ·‘relate[d] to building work located at 11 Newman St Magill 5072 approved in Development Application no. 170/0488/17’;

    ·was ‘signed by the building work contractor responsible for carrying out the relevant building work’; 

    ·certified ‘[t]he building work [at 11 Newman St Magill 5072 approved in Development Application no. 170/0488/17] (disregarding any variation of a minor nature that has no adverse effect on the structural soundness or safety of the building, or on the health of the occupants of the building, or any variation undertaken with the consent of the relevant authority) ha[d] been performed in accordance with the documents referred to in Part B’;

    ·certified in Part B (by or on behalf of the owner) that the documents issued for the purposes of the building works at 11 Newman St, Magill included all contract documents, attachments, instructions, variations and clarifying correspondence issued for the purpose of the building works approved under the Development Act 1993, and further that any conditions of approval relating to those buildings work had been satisfied; and

    ·noted that pursuant to s 45(1) of the Development Act 1993, a person must not perform building work or cause it to be performed, except in accordance with technical details, particulars, plans, drawings and specifications approved under that Act.

    [33] Development Regulations 2008, r 83AB, Sch 19A.

1. The second alternative and the alternative submission of Aude Development was that, if the statement of compliance was required to be in the legislative format contained in schedule 19A to the Development Regulations 2008, it had been provided to Mr Yao in that format. Ms Yao submitted the statement had not been in that strict format because it had not stated the ‘description of the building work to which th[e] statement relate[d]’ and had not stated the ‘date of approval of building work to which the statement related’.[34] Further, Ms Yao submitted, the statement had not been properly completed because it had not been signed by a Licensed Builder and had not stated the licence number of the relevant builder.

   [34] Development Regulations 1996, R83AB.

2. The third alternative and the principal submission of Ms Yao was that the Certificate of Practical Completion had to be strictly completed in the published format under the regulations to the Planning, Development and Infrastructure Act 2016. While that Act had not commenced at the time of execution of the Agreement, it was submitted by Ms Yao that on a proper construction of the transitional provisions to the Planning, Development and Infrastructure Act 2016, the statement which had to be provided by Aude Development under the Agreement, had to be in the strict format under that Act.

3. That principal submission of Ms Yao was premised on a construction of the transitional provisions of the Planning, Development and Infrastructure Act 2016, which required in respect of development approvals granted under the repealed Development Act 1993, a statement of compliance to be given to the relevant planning authority after the operative date of the Planning, Development and Infrastructure Act 2016, in the format required under that Act. From a practical perspective, Ms Yao urged that the statement required by the Special Conditions had to be in that format because the provision of a statement of compliance under the Planning, Development and Infrastructure Act 2016, established her entitlement to occupancy of the house the subject of the Agreement and founded her right to be indemnified for defective works under the Building Work Contractors Act 1995. 

4. Much argument in this case was directed to what the parties meant by the term ‘statement of compliance’ contained in the Agreed Facts. That argument was framed by reference to the repealed and replacement Acts. I am conscious however that the term ‘statement of compliance’ is not a contractual one and cl 2.2 of the Agreement therefore does not operate (contrary to the submission of Ms Yao) to give that term a legislative meaning. The term ‘statement of compliance’ is used to establish a fact that is not required to be proved; an agreed fact.

5. While the parties acknowledged in agreed facts the term statement of compliance appeared in planning legislation, that does not constitute an agreement that the Certificate of Practical Completion had to be provided in any particular format, under either the Development Act 1993, or the Planning, Development and Infrastructure Act 2016.[35] To the contrary, that outcome was positively disavowed. The agreed facts do not substitute or replace the words ‘Certificate of Practical Completion’ in the Agreement and nor do they alter or impact the requirement that a Certificate of Practical Completion must be provided to Ms Yao. Further, Agreed Fact 7 does not amend or rectify the Agreement. Agreed Fact 7 is simply part of the factual framework in this case.

   [35] Agreed Fact 7.

6. I have earlier found that the purpose of the Special Condition contained in Item 18 is to protect Ms Yao because the Agreement is subject to the provision to Ms Yao by Aude Development of certification that the house on the land is practically complete. It is not in dispute that the provision of a statement of compliance can perform the Special Condition. On that basis, I consider the dispute in this case is properly resolved by regard to the purpose of the Special Condition, the meaning of Practical Completion and Licensed Builder and whether the statement of compliance provided performed that condition. The issues in this case require the proper construction of the Agreement and an application of the proved facts.

7. Ms Yao submitted the Special Condition was intended to do more than provide her the protection I have identified. She submitted that the provision of a completed statement of compliance in the format published under the Planning, Development and Infrastructure Act 2016, was intended to provide her with other important rights. Provision would, she submitted, establish her right of occupancy of the house. Further, Ms Yao submitted, without a properly completed statement of compliance stating the licence number of the relevant builder, the ‘description of the building work to which th[e] statement relates’ and the ‘date of approval of building work to which the statement related’, she would not know who to sue for defective works and the statutory warranties contained in the Building Work Contractors Act 1995, would be impacted. 

8. In respect of any right to occupancy, the Agreement records Ms Yao ‘will be given vacant possession, subject to any Tenancies’.[36] Possession though is different to occupation. In this case, as the house is a class 1A building, any right of occupation exists only if certain legislative criteria are satisfied.[37] The performance of the Special Condition or the provision of a statement of compliance under the Agreement, has no role to play in that respect.  

   [36] Exhibit A1, Agreement for Sale and Purchase of Land dated 28 May 2019, cl 6.1.

   [37] Planning, Development and Infrastructure (General) Regulations 2017, R103H; That the house is a class 1A building for both the purposes of the Development Act 1993, and the Planning, Development and Infrastructure Act 2016, being a two-storey townhouse, is agreed; List of Issues and Agreed Facts – Statement of Agreed Facts, [17].

9. The provision of statements of compliance to relevant planning authorities constitute a statutory tool in the achievement of the objects of planning legislation. Under the Development Act 1993, statements of compliance were required to be provided to the relevant planning authority so as to ensure that building work has been carried in accordance with the approvals granted.[38] Statements of compliance under the Planning, Development and Infrastructure Act 2016, are now to be provided to the planning authority for the same purpose.[39]

   [38] Development Act 1993, s 45.

   [39] Planning, Development and Infrastructure Act 2016, s 146.

10. Statements of compliance are not legislatively required to either provide information to identify parties to suit or to establish or identify the building warranties impliedly given by building work contractors in every domestic building work contract.[40] There is no basis for the assertion of Ms Yao that the statutory warranties contained in the Building Work Contractors Act 1995, would be impacted by the format of a statement of compliance given in this case under the Agreement. Warranties under that Act are implied into the building contract and it is that contractual obligation – between owner and builder - which is the foundation of any entitlement.

    [40] Building Work Contractors Act 1995, s 32.

11. The Agreement in this case is between vendor and purchaser. Ms Yao is not a party to any building contract and any right she might have in respect of warranties and indemnity or insurance under the Building Work Contractors Act 1995 arises from the statute, not her contract with the vendor Aude Development. Further, she is not a developer under the planning Acts and any rights granted to her in that regard are statutory, not contractual.

12. Further, the criticism made by Ms Yao that the statement provided fails to state either the ‘description of the building work to which this statement relates’ or the ‘date of approval of building work to which the statement related’ is of no substance. The statement provided does describe the building work to which the statement relates as building work located at 11 Newman St Magill as approved in Development Application no. 170/0488/17. While the statement provided does not expressly state the ‘date of approval of building work to which the statement related’, the reference to the numbered approval would allow that date (if needed) to be easily obtained and, the omission of that detail could not result in any prejudice or disadvantage to Ms Yao, assessed against the purpose of the Special Condition.

13. As for whether Mr Yuan is a Licenced Builder, I have earlier found the ordinary meaning of that term to mean a person who holds a permit from an authority to build houses or other structures. On that basis, I do find that Mr Yuan was a Licensed Builder for several reasons. The parties agreed that ‘Mr Wei Yuan is a licensed building work supervisor but not a licensed building work contractor per the attached search Exhibit A3’.[41] Exhibit A3, being an official extract of licenses issued under the Building Work Contractors Act 1995, records the status of Mr Yuan as a licensee with a licensed status granted on 5 November 2018. Finally, Exhibit A3 establishes Mr Yuan is a registered building work supervisor with a condition limiting his residential building work to national construction code class 1 to 10 not exceeding two storeys.[42]

    [41] Agreed Fact 10 Exhibit A3, Extract of building licence Wei Yuan.

    [42] Building Work Contractors Act 1995, Part 2.

14. Ms Yao did seek to draw a distinction between registration and licensing under the under the Building Work Contractors Act 1995.[43] Whatever distinction the Act might draw in that respect, it does not assist in my determination of a contractual term, the application of agreed facts to that term and whether Mr Yuan signed the Certificate of Practical Completion as a Licensed Builder under the Agreement.

    [43] Ibid, see also Part 3.

15. For these reasons, I find the statement of compliance provided by the broker to Ms Yao to be a Certificate of Practical Completion under Item 18 of the Agreement as it both certified Practical Completion and was signed by a Licensed Builder, Mr Yuan. Further, I find that provision of that statement to Ms Yao performed the Special Conditions under the Agreement. It follows that Ms Yao failed to settle the Agreement and it has been lawfully terminated by Aude Development.

16. I will hear the parties as to the form of any orders to be made and as to costs.