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[2025] ACAT 42
General information, not legal advice.
ACT Civil and Administrative Tribunal
2025-06-16
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Source: the ACT Civil and Administrative Tribunal (www.acat.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
GEOCON CONSTRUCTORS (ACT) PTY LTD v CONSTRUCTION OCCUPATIONS REGISTRAR (No 2) (Administrative Review) [2025] ACAT 42 AT 108/2024 Catchwords: ADMINSTRATIVE REVIEW – review of a decision by the registrar to make a rectification order – where the registrar proposed to reconsider the scope of the rectification order in light of new expert evidence foreshadowed by the owners corporation – where parties agreed it was preferable to set aside the decision and substitute a decision not to make a rectification order in relation to a large number of defects to allow that to happen – where the applicant conceded it would be appropriate to include certain defects in any final rectification order and the parties proposed to argue whether certain others should be included also – where the owners corporation indicated it may not be willing to abide by the outcome of the regulatory process if it did not agree with the applicant’s proposed rectification methodology – where any programme of works would require access, scheduling and coordination issues for different trades to be worked out at the same time depending on the final scope of the rectification order – where there was no justification for the applicant to be required to plan and execute the same kind of work in different areas on a piecemeal basis – decision set aside and substituted by a decision not to make a rectification order, leaving it open for the registrar to issue a fresh notice of intention to make a rectification order if the registrar thinks fit.
Legislation cited: ACT Civil and Administrative Tribunal Act 2008, ss 22B 68(3) Building Act 2004, s 42(1) Construction Occupations (Licensing) Act 2006, ss 34, 38, 123A Subordinate Legislation cited: ACT Civil and Administrative Tribunal Procedures Rules 2024, r 129(1) Construction Occupations (Licensing) Regulation 2004, s 42A, schedule 4 Cases cited: Geocon Constructors (ACT) Pty Ltd v Construction Occupations Registrar (No 1) [2025] ACAT 41 Jolley v Construction Occupations Registrar [2023] ACAT 65 Jolley v Construction Occupations Registrar [2025] ACAT 40 Tribunal: Senior Member M. Orlov
Date of Orders: 12 June 2025 Date of Reasons for Decision: 16 June 2025 Date of Publication: 16 June 2025 AUSTRALIAN CAPITAL TERRITORY ) CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 108/2024
BETWEEN: GEOCON CONSTRUCTORS (ACT) PTY LTD Applicant AND: THE OWNERS – UNITS PLAN NO 4421 Party Joined AND: CONSTRUCTION OCCUPATIONS REGISTRAR Respondent
TRIBUNAL: Senior Member M. Orlov
DATE: 12 June 2025
ORDER The Tribunal orders that:
The decision to make a rectification order is set aside and substituted by a decision not to make a rectification order.
The hearing on 13 June 2025 is vacated.
………..(signed) ……….. Senior Member M. Orlov REASONS FOR DECISION
The background to this application is explained in an earlier interlocutory 1 decision dated 25 February 2025.
The application was listed for final hearing for two days commencing on 12 June 2025. At 3:00 pm on the first day, I made final orders setting aside the registrar’s decision to make a rectification order and substituting a decision not to make a rectification order and vacated the second day of the hearing. The order was made with the support of the applicant and party joined and over the opposition of the respondent. I will explain briefly how and why this came about.
The period before the lunch adjournment was occupied by a detailed discussion about potential outcomes depending on how certain legal and factual issues may be decided. Indications I gave as to how I thought the hearing should proceed resulted in the applicant conceding it would be appropriate to include certain 2 defects in any final rectification order, the applicant and respondent agreeing that 3 I should hear submissions in relation to several other defects and a consensus of all parties that the decision to make a rectification order in relation to all other 4 defects should be set aside and substituted by a decision not to make a rectification order.
Although initially the parties were in favour of the Tribunal remitting the latter category to the registrar for reconsideration, after the implications of doing so were explored the parties did not press for this for several reasons.
First, the applicant’s stated position was that the Tribunal lacked power to make a split decision – i.e. to make a rectification order in relation to some matters and
1 Geocon Constructors (ACT) Pty Ltd v Construction Occupations Registrar (No 1) [2025] ACAT 41 2 Defect 1b (rooftop balustrades); defect 4a (water ingress into units 9, 57 and 381); defect 4b (construction and installation of glazed units in twelve units); and defect 5a (ventilation in residential units) 3 Defect 1a (Tower A and Tower B balcony balustrades); defect 3c (common area tiling and waterproofing); and defect 3e (Tower A and B roof waterproofing membrane and water ingress); 4 Defect 2a (Pool concourse); defect 2b (membrane, tiling and waterproofing defects); defect 2c (pool gate and pool safety barrier); defect 2d (pool stair handrails); defect 3(a) (water ingress); defect 3b (residential units tiling and waterproofing); defect 3d (Level 5 common area/Sky Park waterproofing membrane); defect 5b (ventilation in common areas) to remit others to the registrar for reconsideration. I was not called upon to decide this given the way the matter proceeded.
(a) failed to properly identify and adequately describe the scope of building work the registrar now wished to contend was carried out otherwise than in accordance with the provisions of s 42(1) of the Building Act 2008, the building code and relevant standards;
(b) failed to properly identify and adequately describe the respects in which the registrar now wished to contend the building work contravened these provisions; and
(c) partly but not entirely as a consequence of (a) and (b), failed to properly identify and adequately describe the “stated action to rectify” non-compliant work.
Third, these deficiencies were compounded by the absence of adequate reasons for the registrar’s decision – noting that the applicant failed to ask the registrar for a statement of reasons within 28 days after the day the decision was made, as it was entitled to do under s 22B of the ACT Civil and Administrative Tribunal Act 2008 and the registrar failed to serve on the applicant and the Tribunal a statement of reasons within 14 days of receiving the application for review of the decision, as required by rule 129(1) of the ACT Civil and Administrative Tribunal 5 Procedures Rules 2024.
Fourth, the registrar anticipated that if updated evidence is obtained it may be necessary to demolish, rather than repair, the podium slab, which would have a knock-on effect on other defects, such as the pool concourse tiling and
5 A statement of reasons served under rule 129 must (a) set out the findings on material questions of fact, (b) refer to the evidence or other material on which those findings are based, (c) identify the relevant law and (d) give reasons for the decision. The Tribunal has power under s 22C of the ACAT Act to declare that a reasons statement is not sufficient, in which case s 22D provides that the decision maker must, within 28 days, give an additional statement containing the information, evidence, material or anything else required to make the reasons statement sufficient. waterproofing. In support of this, the party joined submitted that some of the evidence on which the registrar based the decision was incomplete and, in some respects, out-of-date. Specifically, it was claimed that certain structural elements providing support for the podium slab had deteriorated due to ongoing water penetration to an extent that it was now necessary to demolish, rather than repair, the podium slab. The party joined flagged that it intended to provide a raft of updated expert evidence to the registrar for consideration.
Fifth, the party joined conceded that some of the evidence on which the registrar relied was inadequate to support the decision to make a rectification order, including that there was a lack of current evidence of water ingress into some units and the report dealing with alleged inadequacies in the ventilation in common areas was not in proper form and omitted basic requirements for expert opinion evidence. The party joined proposed to provide the registrar with up-to-date evidence of complaints by unit owners of water leakage and a fresh report dealing with the common area ventilation issues.
Sixth, the registrar submitted that some categories of defects were considered to be systemic, rather than being confined to the specific units identified in the rectification order. This was particularly the case in relation to the tiling and waterproofing of balconies. The registrar acknowledged the necessity to disclose to the applicant the evidentiary basis and reasoning for any decision to extend the scope of the rectification order to include all the balconies of all units in Towers A and B and for the applicant to be given an opportunity to respond to the new material.
Seventh, while the registrar would be required to afford procedural fairness to the applicant in the event the matters were remitted to the registrar for reconsideration, setting the decision aside and substituting a decision not to make a rectification order meant that the registrar would have to issue a fresh NOI and the applicant would have the benefit and protection of the consultation process for which s 34 of the Construction Occupations (Licensing) Act 2004 (COLA) provides.
Shortly before the lunch adjournment, it became apparent the party joined wished to reserve to itself the right to be consulted in relation to any decision whether the registrar should accept the applicant’s proposed scope of works and repair methodology and, subject to advice of its own experts, withhold its agreement to the proposed scope of works and repair methodology and propose its own alternative. Counsel for the party joined went as far as to suggest that his client could not be compelled to accept a solution with which it did not agree and in such circumstances would be entitled to refuse access to the premises to allow the applicant to carry out work required by the rectification order.
This is not how the statutory scheme for the making of a rectification order works.
In Jolley v Construction Occupations Registrar [2023] ACAT 65, the tribunal (of which I formed part) said at [340]: [340] It must be kept in mind that this proceeding concerns regulatory action that the Registrar – and now the Tribunal – has decided should be taken in relation to Mr Jolley. The role of the owners corporation as an interested party and active participant in the review of the Registrar’s decision is now at an end. The owners corporation must be given advance notice of what work will be done and where and when it will be done, so that appropriate arrangements can be made for access to be given (if necessary, by the Executive Committee exercising its statutory power to authorise entry under section 28(3) of the Unit Titles (Management) Act 2011) and to minimise the inconvenience and disruption to owners and occupiers of the affected units. However, the owners corporation has no further role in deciding what work should be done, where and how it should be done and overseeing the performance of the work to ensure it is done satisfactorily.
A rectification order requires an entity to take stated action to rectify non-compliant work – e.g. the entity must ensure that rectified work complies with a 6 stated performance requirement of the building code. The order may require the entity to give the registrar written information about a thing to be done under the order – e.g., a report by a structural engineer about whether rectified work complies with relevant structural standards or a certificate issued by a building 7 certifier that the finished work complies with the Act. The order need not state how a thing required to be done under the order is to be done – e.g., an order
6 COLA, s 38(1)(a) 7 COLA, s 38(2) requiring an entity to rectify a building so that it complies with a stated performance requirement of the building code need not specify how the work is to be undertaken or how the building may be redesigned or altered to comply with 8 the requirement. The order must state the period within which what is required 9 to be done must be done.
Where a rectification order requires an entity to take stated action to rectify non-compliant work but does not state how the stated action is to be done, as is typically the case, it is usual for the order to require the entity to provide the registrar with a programme of works to be carried out in compliance with the order. The programme of works generally must include sufficient information in relation to the scope of works, repair methodology and scheduling of works to satisfy the registrar that the building work, if done in accordance with the programme of works, will comply with the Building Act, building code and applicable standards within the period specified in the order. Where the scope of works is likely to be extensive, involving multiple trades and having the potential to cause significant disruption to owners and occupiers, the programme of works may be required to specify the separation of works by trade, including a brief description and expected commencement and completion dates of the work to be done by each trade in the form of a Gantt chart or similar programme showing the critical path and include an estimate of access and storage requirements and the time or times of day and duration of work involving loud noise, vibration or 10 unpleasant odours.
The responsibility to develop a suitable programme of works lies with the entity alone. Whether the programme of works satisfies the registrar that the work, if done in accordance with the programme of works, will comply with the relevant statutory requirements, building code and applicable standards within the period specified in the order is a matter for the registrar. The order may require the entity to provide written information to the registrar about the work to enable the
8 COLA, s 38(3) 9 COLA, s 386) 10 See e.g., the rectification order made in Jolley v Construction Occupations Registrar (No 4) [2025] ACAT 40 registrar to attain the necessary state of satisfaction.
It is standard practice in design and construct contracts to specify the performance requirements the end product must satisfy and to mandate, often in considerable detail, the information the contractor must provide to satisfy the principal that the contract requirements will be met. This may include the development of detailed work method statements, inspection and test plans and other quality assurance procedures adapted to meet the project requirements.
The registrar’s power to do likewise is found in s 38(2) of the COLA.
For example, in Jolley v Construction Occupations Registrar (No 4) [2025] ACAT 40 the rectification order required certified inspection records to be prepared for hold points during the performance of waterproofing and tiling works to balconies, signed and dated by an authorised representative of the manufacturer of the waterproofing membrane or a suitably qualified consultant or other person approved by the registrar and counter-signed and dated by an authorised representative of the builder or trade contractor doing or supervising the doing of the work who is present at the inspection. In addition, the order required a report to be prepared by a certifier detailing the work done to each balcony and the results of hold point inspections at appropriate stages of waterproofing membrane and control joint installation and certifying that in the opinion of the certifier the work complies with the Building Act, the building code and relevant standards. A similar report by a certifier was required in relation to the replacement of defective glass balustrade panels. A structural engineer was required to inspect and map the location of cracks greater than a certain width in the basement slab, be involved in developing a repair method statement, inspect the works on completion and certify that the work was done in accordance with the repair method statement and complied with the code and relevant standards.
The rectification order in the present case does not state how the rectification work should be done. The applicant’s grounds of review dated 10 February 2025 stated that “if a rectification order is made, the applicant may submit that it is appropriate to prescribe, in respect of a given alleged contravention…a specific scope of works” but did not contend that it was appropriate to do so, at least at that stage, in respect to any particular category or sub-category of defects. In an earlier interlocutory decision in this matter, in which I refused to make consent orders providing for the applicant to file and serve expert evidence addressing the work required to make non-compliant building work comply with the Building Act, the building code and relevant standards, I said: Inevitably, if the issue were to be raised, the timeframe for the hearing would blow out significantly and any potential forensic disadvantage associated with the conduct of parallel proceedings in the ACAT and the Supreme Court involving the same experts would be magnified. As matters stand, the Applicant’s Grounds do not require the Tribunal to decide the issue. In those circumstances, I am not persuaded that evidence going to the scope of the proposed rectification works is relevant to the issues I am required to decide, nor that it is appropriate to set a timetable 11 that accommodates the preparation of such evidence.
The party joined sought to justify its position on the grounds that it had anticipated any disputes about the scope of the rectification works would be decided by the Tribunal and, to that end, that parties would be given the opportunity to put on expert evidence and to test the evidence by cross-examination but the opportunity to do so was foreclosed by my approach to the conduct of the proceeding as outlined above.
In that context, it is appropriate to observe that the registrar’s decision to make a rectification order that does not state how non-compliant work should be rectified 12 is not reviewable at the instance of the party-joined.
The fact that the party joined is actively prosecuting an action for damages for defective work against the applicant in the Supreme Court does not preclude it from making a complaint to the registrar about non-compliant work with the object of persuading the registrar to make a rectification order. Nor does the existence of a proceeding in the Supreme Court necessarily make it inappropriate for the registrar to make a rectification order, although the existence of such a proceeding and the stage it has reached when a decision has to be made may be
11 Geocon Constructors (ACT) Pty Ltd v Construction Occupations Registrar (No 1) [2025] ACAT 41 at [84]- [90] 12 COLA, s 123A; Construction Occupations (Licensing) Regulation 2004, s 42A and schedule 4 one of the factors to be considered in deciding whether it is appropriate to make a rectification order.
The Supreme Court action apparently involves something like fourteen parties and may be expected to take years to resolve at significant cost to the parties. If the party joined obtains an award of damages, it will have to engage a builder to carry out the rectification work. On the most optimistic view, it is likely to be years before the premises are restored to a satisfactory state of repair. In such circumstances, a rectification order may provide a more immediate and less costly pathway for the party joined to obtain practical redress.
However, the party joined cannot have it both ways. If it is not willing to abide by the outcome of the regulatory action and instead wishes to reserve its position in relation to the applicant’s proposed scope of work and repair methodology, including whether it will cooperate to allow the applicant to comply with the rectification order depending on whether it agrees with the registrar’s decision to accept the applicant’s programme of works, there is a real question whether it is appropriate to make a rectification order.
When I raised these issues with the parties, the party joined altered its position to submit the preferable decision was to substitute a decision not to make a rectification order, leaving the party joined free to provide the respondent with whatever further information was thought necessary and the respondent to restart the process by issuing a fresh NOI. The applicant joined in that submission, noting that it was extraordinary that the party that had originally sought the rectification order now proposed that it should not be made. The respondent submitted that the public interest was better served by the Tribunal deciding the three issues the parties had agreed earlier should be argued – namely, defect 1a (Tower A and Tower B balcony balustrades), defect 3c (common area tiling and waterproofing) and defect 3e (Tower A and B roof waterproofing membrane and water ingress).
I am satisfied that it is not appropriate to do so at this stage for the following reasons.
First, if a rectification order is made in relation to the balcony balustrades to address defect 1a, the work may require, at one extreme, the complete redesign and installation of a new balustrade system or, at the other, simply installing metal plates or strips to reduce or close the gap between the exposed edge of the balcony slab and the inside face of the glass balustrade. Either way (and there may be other solutions) there is a potential for balcony tiling and waterproofing to be compromised by the works. There was a consensus that no rectification order should be made in relation to defect 3b, involving alleged tiling and waterproofing defects potentially affecting all balconies on every level of Tower A and B, because the registrar proposed to revisit the issue based on further evidence to be provided by the party joined. The programme of works to rectify defects 1a and 3b (assuming for present purposes that an order is made in respect to both) although involving different trades, would require access, scheduling and coordination issues to be worked out at the same time.
The same reasoning applies to defect 3c (common area tiling and waterproofing). The programme of works should address all tiling and waterproofing issues that may be the subject of a rectification order, rather than require the applicant to plan and execute the same kind of work in different areas on a piecemeal basis.
The controversy in relation to defect 3e (Tower A and B roof waterproofing membrane and water ingress) involves a contest of expert evidence as to whether work to rectify acknowledged defects should be confined to the roof edges or require wholesale removal and replacement of the roof waterproofing. The respondent submitted that the matter should be remitted to the registrar for reconsideration. Accordingly, this issue would not result in a rectification order being made.
That leaves the defects the applicant conceded would be appropriate to be included in any final rectification order – namely defect 1b (rooftop balustrades); defect 4a (water ingress into units 9, 57 and 381); defect 4b (construction and installation of glazed units in twelve units); and defect 5a (ventilation in residential units). In relation to defects 4a and 4b, it appears the owners corporation intends to provided updated information to the registrar about complaints by owners and occupiers about water leakage through windows.
In Jolley v Construction Occupations Registrar [2023] ACAT 65, the tribunal said at [341]: Mr Jolley must arrange for the work to be done by an appropriately licensed builder at his cost. He is entitled to arrange for the work to be done in the most cost and time efficient way that suits the builder’s work methods and access requirements, subject to the work being completed within the period stated in the order.
There may be circumstances where it is appropriate for the registrar to make separate rectification orders in relation to discrete work ‘packages’, rather than a single order covering every aspect of the non-compliant work. However, where the registrar proposes to revisit the question whether a rectification order should be made in relation to most of the alleged non-compliant work based on new or updated evidence to be supplied by the party joined, I can see no good reason to carve out a small section of work for the purpose of making a limited rectification order simply because the applicant does not contest that the work should form part of any final rectification order the registrar or the ACAT ultimately may make.
As the merits of the application remain undetermined, the effect of this decision is to leave open the option for the registrar to issue a fresh NOI to the applicant. It will be a matter for the registrar to determine whether the party joined is willing to abide by the outcome of the regulatory process and, if not, to consider what weight should be given to this in deciding whether it is appropriate to make a rectification order.
……………………………….. Senior Member M. Orlov
GEOCON CONSTRUCTORS (ACT) PTY LTD
CONSTRUCTION OCCUPATIONS REGISTRAR