austlii:tas/TASCAT/2025/212
General information, not legal advice.
TASCAT
2025-11-24
Member Brimfield, Member Edquist
Original judgment source is linked above.
Citation: Fagan & Anor v Luxe Concrete By Design [2025] TASCAT 212
Parties: Patrick Fagan & Suzanne Ormshaw (Applicants)
Zak Waller trading as Luxe Concrete By Design (ABN 62 106 326 616) (Respondent)
Catchwords: Residential building - Meaning of "residential building work" in Residential Building Work Contracts and Dispute Resolution Act 2016 - What building disputes does the Tribunal have jurisdiction to hear - Whether driveway works carried out separately from a dwelling are residential - Parliament's intention in granting Tribunal jurisdiction to deal with building disputes.
Extension of time - Factors relevant to granting an extension of time for residential building disputes - Inconsistent limitation periods between Tribunal and Courts.
Legislation Cited: Residential Building Work Contracts and Dispute Resolution Act 2016; Residential Building (Miscellaneous Consumer Protection Amendments) Act 2023; Tasmanian Civil and Administrative Tribunal Rules 2021; Acts interpretation Act 1931 (Tas); Domestic Building Contracts Act 1995 (Vic); Home Building Act 1989 (NSW); Tasmanian Civil and Administrative Tribunal Act 2020
Cases Cited: Viccars v Leader Earthworks Pty Ltd [2025] NSWCATCD; Dinneen v EE Construct & Landscaping Pty Ltd [2023] VCAT 1212; Maclaw No 651 Pty Ltd v HIH Casualty and General Insurance Limited [1999] VCAT 24; [1999] 15 VAR 302; Shao v AG Advanced Construction Pty Ltd [2019] VSCA 93; Allianz v Waterbrook [2009] NSWCA 224; Grygiel v Baine and Others [2005] NSWCA 218; Winslow Constructors Pty Ltd v Mt Holden Estates Pty Ltd [2004] VSCA 159.
Moving residential building disputes to the TASCAT will make it simpler, faster and cheaper to resolve such disputes, and dramatically improve the resolution of building disputes within Tasmania.
Mr Speaker, this Bill provides the TASCAT with original jurisdiction to hear residential building work dispute matters. This will bring Tasmania in line with other jurisdictions and will be an important step in providing a more timely and cost-effective dispute resolution pathway for Tasmanian property owners and building contractors alike.
Under the Bill, a residential building work dispute application may be lodged with the TASCAT if the parties to the dispute have attempted mediation and a certificate of mediation has been issued by the mediation panel appointed by the Director of Building Control. A building dispute application can then be lodged to the TASCAT, which is an application for the commencement of proceedings.
(1) In this Act, a residential building is a building, or structure, that is classified under Volume One of the NCC as -
(c) a class 10 building, if that building is associated with a class 1a building or class 2 building.
(f) structures or devices to mitigate the fire hazard in respect of special fire hazard buildings, within the meaning of the Building Regulations; and
(b) a system of sewage, or of sullage, drainage or removal; or
(c) a system of storm water drainage or roof drainage; or
(a) a system for lighting, heating, ventilation, air conditioning or cooling;
(2) For the purposes of this Act, the following work is residential building work:
(a) erecting, re-erecting, constructing, altering, repairing, underpinning, demolishing or removing a residential building;
(b) adding to, or removing a part of, a residential building;
(c) the restoration, maintenance, renovation, alteration, extension, improvement or repair of a residential building;
(d) work, on the land on which building work referred to in paragraph (a) , (b) or (c) is being, or is to be, carried out, that is work in preparation for the use of that land for residential purposes or in preparation for that or other residential building work, including, but not limited to -
(i) work required to gain access, or to remove impediments to access, to that land, part of that land or other land related to any other residential building work, including the construction of a road to enable access to the residential building or to that land or part of that land; and
(ii) site clearance, earth moving, excavation, tunnelling, boring and filling; and
(iv) the erection, maintenance or dismantling of plant and equipment; and
(v) work required in preparation for the erection of a prefabricated dwelling;
(e) all associated work carried out in conjunction with work referred to in paragraph (a) , (b) or (c) including, but not limited to -
(i) the provision, installation, alteration, repair or removal, of all, or a part of, a relevant system in relation to the residential building or the land on which the residential building is, or is to be, situated; and
(ii) the erection, re-erection, construction, alteration, repair or removal of buildings, structures and fixtures associated with a residential building; and
(iii) the cleaning, painting and decorating of the inside and outside surfaces of the residential building; and
(f) the prefabrication of any component that is to form part of a residential building, including the manufacture of a prefabricated dwelling, regardless of where that prefabrication is carried out;
(g) any work carried out on any part of a prefabricated dwelling, or on any prefabricated component of a dwelling, in preparation for the erection of the prefabricated dwelling or component, regardless of where that work is carried out;
(h) any other work that is prescribed by the regulations to be residential building work.
(3) Although a caravan, motor vehicle, trailer, aeroplane or boat is not a residential building, if the caravan, motor vehicle, trailer, aeroplane or boat is, or is to be, used as a residence on any land, the following work is residential building work:
(a) all work done in relation to the use of the land for residential purposes, including, but not limited to, landscaping, paving and the erection, construction or removal of any building or fixture associated with the caravan, motor vehicle, trailer, aeroplane or boat;
(b) the provision of water supply, sewerage or drainage to the land on which the caravan, motor vehicle, trailer, aeroplane or boat is, or is to be, situated;
(c) loading, unloading or transporting a building or structure that, if fixed to land, could be a residential building, regardless of whether the loading, unloading or transportation is solely on the land on which the building or structure was or is to be located;
(d) loading, unloading or transporting a prefabricated building or structure that, if fixed to land, could be a residential building, regardless of whether -
(i) the building or structure is whole or in parts; and
(ii) the loading, unloading or transportation is solely on the land on which the building or structure was or is to be located;
(e) any other work that is prescribed by the regulations to be residential building work in relation to the land on which the caravan, motor vehicle, trailer, aeroplane or boat is, or is to be, situated.
(4) For the purposes of subsections (2) and (3) , buildings and fixtures associated with a residential building or a caravan, motor vehicle, trailer, aeroplane or boat include, but are not limited to, passageways, retaining structures, driveways, paths, fencing, paving, garages, carports, workshops, storage sheds, swimming pools and spas.
(5) Despite subsections (2) and (3) , the following work is not residential building work for the purposes of this Act:
(b) any work that is exempted from the application of this Act in accordance with section 10 ;
(c) work for the purposes of the subdivision of land;
(d) work in relation to a building, caravan, motor vehicle, trailer, aeroplane, or boat, intended to be used only for business purposes;
(e) work in relation to a building, caravan, motor vehicle, trailer, aeroplane, or boat, intended to be used only for the accommodation of animals;
(f) other work that is prescribed by the regulations not to be residential building work.
Defines the types of residential building work to which this Act applies, including fire systems, plumbing systems and gas supply systems.
Residential building work is taken to include any prefabrication of components
manufactured off site. So if the owner purchases a kit home, they are still covered under this Act.
The Act includes residential improvements including driveways, fences, retaining walls and landscaping.
[1] See for example Viccars v Leader Earthworks Pty Ltd [2025] NSWCATCD or Dinneen v EE Construct & Landscaping Pty Ltd [2023] VCAT 1212.
[2] See the decision of Judge Davey in Maclaw No 651 Pty Ltd v HIH Casualty and General Insurance Limited [1999] VCAT 24; [1999] 15 VAR 302.
[3] See Shao v AG Advanced Construction Pty Ltd [2019] VSCA 93 at [46], and Allianz v Waterbrook [2009] NSWCA 224 at [97].
[4] See Grygiel v Baine and Others [2005] NSWCA 218 at [58].
[5] Other Civil and Administrative Tribunals in other states have a separate jurisdiction to deal with consumer-trader disputes under the relevant state based Australian Consumer Law legislation which would permit the dispute to otherwise be dealt with. This Tribunal does not currently have that jurisdiction.
[6] Section 8B(1)(a), Acts interpretation Act 1931 (Tas).
[7] See Schedule I, section 3(2), definition of "dwelling" which uses the words "in conjunction with," Home Building Act 1989 (New South Wales) and section 5 of the Domestic Building Contracts Act 1995 (Vic) which uses the words in conjunction with).
[10] See Part 6, Division 1 and Division 3 of the Act.
[8] The Director of Building Control might consider making this clearer in their letters to parties and I will direct a copy of these reasons be provided to them.
[11] The Honourable Elise Archer MP, second reading speech, Residential Building (Miscellaneous Consumer Protection Amendments) Bill 2022.
[9] Section 10(1)(c), Tasmanian Civil and Administrative Tribunal Act 2020.
Fagan & Anor
Luxe Concrete By Design [2025] TASCAT 212