ACT Civil and Administrative Tribunal|2023-10-26|Before: Member Prof

For the reasons given, we are satisfied that it is appropriate to make a rectification order requiring stated action to rectify defect 2 (waterproofing and tiling of balconies), defect 4 (delamination of glass balustrade panels) and defect 6 (basement slab cracking).
We not persuaded that it is appropriate to make a rectification order in relation to defect 5 (loose balustrade capping), or defect 7 (water ingress into internal spaces).
We are not persuaded that the stated action to remedy defect 2 (waterproofing and tiling) should require wholesale removal or replacement of the waterproofing and tiling to each affected balcony - i.e. Option 2 developed by Mr Joannides and Mr Stephenson - unless it is apparent that there is no other way to make the works compliant. We consider the stated action should be as described by Mr Joannides and Mr Stephenson in Option 1. While generally we think it is preferable not to be unduly prescriptive in describing the 'stated action' to be taken in most cases, in this case the remediation of defective waterproofing otherwise than by complete replacement requires close supervision and enforcement of 'hold points' at critical stages as Option 1 provides. The only change we would make is at the last step (item 8). Where removed tiles extend beyond 1.0 metre with inadequate selvedge, instead of proceeding with full removal and replacement in accordance with Option 2, we consider Mr Jolley should have an opportunity to propose an alternative solution to the Registrar for approval. If there is no alternative solution, or the Registrar does not approve the alternative proposed by Mr Jolley, the default position should remain that Option 2 must be implemented.
The units where stated action is to be taken in relation to defect 2 should be listed in the order.
We consider that stated action to remedy defect 4 (delaminated glass balustrade panels) should be to replace all glass balustrade panels where any delamination is apparent. On the one hand, we consider removal and replacement of only some delaminated glass based on a subjective assessment of the location and extent of delamination in individual panels is not appropriate where the glass has been found not fit for purpose as a result of a defect in the manufacturing process. On the other, it is now more than 10 years since the project was finished. The unquantified risk that delamination may occur at some unspecified time in the future in glass panels that presently show no evidence of delamination in our view does not justify making an order for wholesale removal and replacement of all Vietnamese sourced glass. While recognising that the approach we favour will require replacement of some panels where the delamination is relatively minor, in our view this represents an appropriate balance between the competing interests and gives appropriate weight to the public interest considerations involved in deciding to make a rectification order.

Section 48(1) of the ACAT Act provides that the parties to an application must bear their own costs unless the Act or another territory law otherwise provides or the tribunal otherwise orders.
The Tribunal considers that this is an application where it would have been appropriate to make an order that Mr Jolley pay the costs of the owners corporation if the decision in CIC Australia Ltd v ACT Planning and Land Authority and Ors [170] (CIC) did not preclude it from doing so.
In that case, Penfold J held that section 48(1) does not create a general discretion for the Tribunal to order costs. The decision is binding on the Tribunal. Although the costs aspect of the decision in CIC has been cited by the ACT Supreme Court[171] and the Court of Appeal[172] the correctness of the decision has never been reconsidered or tested.
Where the law as it currently stands precludes the Tribunal from making a costs order in cases of this kind, it appears to us that the question whether the COLA should be amended to provide for the Tribunal to be able to order costs in appropriate circumstances is a matter that should be given urgent consideration. A decision to make a rectification order involves a decision to take regulatory action in the public interest, including to protect the integrity of the scheme for the licensing of construction occupations and the regulation of building works. It is an essential part of the Registrar's statutory function to take such action in appropriate cases and to support the decision where review is sought.
In this case, the decision-maker did not give evidence and the Registrar did not serve any fresh evidence to support the decision under review or to answer the lay and expert evidence on which Mr Jolley relied. The burden of preparing expert evidence fell by default on the owners corporation. During the hearing, counsel for the owners corporation did all of the heavy lifting in relation to disputed factual issues. The same is true in relation to the extensive written submissions dealing with the facts. Save for submissions on the law and the exercise of discretion, the Registrar's participation in the proceeding was essentially passive.
Cases of this kind are expensive to run, which may explain the Registrar's approach. However, it is inherently unfair for a party in the position of the owners corporation to have to bear the substantial cost of seeking to justify a decision of the Registrar to take regulatory action in the public interest without any ability to recover its costs from the licensee in the event of a successful outcome.

[1] Chase Group is now known as Chase Construction. Its website states that "Since 2003, Chase Construction has grown to be an experienced and dependable construction company, delivering projects of differing scale and facility. In this time, developers have trusted our team of professionals to deliver award winning and contemporary buildings known for superb finishes and attention to detail". One of the projects mentioned is Manhattan on the Park, which won an MBA award in 2014 for 'Best Apartment Building 3 Levels & 4 Storeys & above" - see https://chaseconstruction.com.au/projects/manhattan-on-the-park/ Another Chase project for which Chase Construction claims credit is the Childers Square commercial office building completed in 2009.

[2] In fact, the correct edition is BCA-2011, which is referenced in the rectification order.

[3] Jolley v Construction Occupations Registrar & Anor [2021] ACAT 112

[4] Jolley v Construction Occupations Registrar & Anor [2022] ACAT 47

[12] Building Regulation, section 6 and schedule 1

[16] COLA, section 28(6)(b); COL Regulation, section 19(c)

[25] Transcript of proceedings, page 447 lines 16-17

[26] Transcript of proceedings, page 447 lines 43-45

[27] Transcript of proceedings, page 451 lines 16-20

[28] Transcript of proceedings, page 447 lines 16-17

[29] Applicant's Outline in Reply, dated 8 June 2023

[30] Applicant's Outline in Reply, dated 8 June 2023, [1]-[4]

[35] [2017] ACTCA 36 at [58]- [60], [64], [83]

[38] Definition of 'building code' in the Building Act, section 136(1); see also Building Regulation, section 43A

[44] Building Act, section 42(2) and Building Regulation, section 31 (material and work standards) and section 32 (construction tolerances)

[45] Building Regulation, section 31(a)

[46] Building Regulation, section 31(b)

[47] Building Regulation, section 31(c)

[48] Building Regulation, section 31(d)

[49] Building Regulation, section 31(e)

[50] Building Regulation, section 31(f)

[51] Building Regulation, section 31(g)

[53] Building Regulation, section 32 and schedule 3, part 3.1

[54] Building Act, section 136(1); see also Building Regulation, section 43A

[59] Jolley v Construction Occupations Registrar & Anor [2022] ACAT 47 at [92]- [96]; Hill v Construction Occupations Registrar [2021] ACAT 21 at [55]

[60] See the discussion of section 39A of the COLA in Hill v Construction Occupations Registrar [2021] ACAT 21

[62] COLA, section 34(2) - the minimum time the Registrar must allow for submissions is 5 working days after the entity receives the notice. In this case, Mr Jolley was given 10 days initially. This was extended by several months.

[63] The dictionary, part 1 in the Legislation Act 2001 provides that "contravene includes fail to comply with". Pursuant to section 144 of the Act, the definition applies to all Acts and statutory instruments. Thus, an entity contravenes the COLA or an operational Act when it fails to comply with it.

[67] COLA, section 38(4). Except in the case of an emergency rectification order, the stated period for rectification must be not less than 1 month after the day the rectification order is given to the entity - COLA, section 38(4)

[68] COLA, section 123A; COL Regulation, section 42A and schedule 4

[69] COLA, sections 123B, 123C(a); COL Regulation, section 42B and schedule 4

[71] Respondent's Opening Submissions dated 30 April 2023, [6]

[74] National Association of Testing Authorities, Australia

[75] Exhibit A1, paragraph 8 (Tribunal Book, page 1166)

[76] Exhibit A1, paragraph 15 (Tribunal Book, page 1166)

[77] Exhibit A1, paragraph 16 (Tribunal Book, page 1166)

[78] Exhibit A1, paragraph 17 (Tribunal Book, page 1166)

[79] Exhibit A1, paragraph 17 (Tribunal Book, page 1166)

[80] Exhibit A1, paragraph 19 (Tribunal Book, page 1167)

[81] Exhibit A1, Tab 4, paragraph 1.6 (Tribunal Book, page 1239)

[82] Exhibit A1, Tab 4, paragraph 4.1.2 (Tribunal Book, page 1308)

[83] Exhibit A1, Tab 4, paragraph 4.1.2 (Tribunal Book, page 1308)

[84] Exhibit A1, Tab 4, paragraph 4.2 (Tribunal Book, page 1309)

[85] Exhibit A1, paragraphs 20, 29, 30 (Tribunal Book, page 1168)

[86] Exhibit A1, Tab 7 (Tribunal Book, page 1357)

[87] Exhibit A1, paragraph 32 (Tribunal Book, page 1168)

[89] AS 3958.1 - 2007 Ceramic Tiles, Part 1: Guide to installation of ceramic tiles

[92] AS 4564.2 clause 2.6..1.1 and Table 2.1 for terrain categories 3 and 4 and regional wind speeds of 45 m/s

[96] AS 3958.1 clauses 5.6.1, 5.6.4.2, 5.6.4.3

[97] Building Regulation, section 31(a) and (b) and section 32

[98] Guide to Standards and Tolerances 2007, clause 13.04

[99] Guide to Standards and Tolerances 2007, clause 13.05

[100] Guide to Standards and Tolerances 2007, clause 13.07

[101] Guide to Standards and Tolerances 2007, clause 13.08

[102] Guide to Standards and Tolerances 2007, clauses 11.01, 11.02

[103] Exhibit A1, Tab 16 (Tribunal Book, page 1491)

[104] Exhibit A1, Tab 17 (Tribunal Book, page 1524)

[105] Australian Standard AS 3740 - 2010 Waterproofing of domestic wet areas

[106] Exhibit A1, Tab 17 (Tribunal Book, page 1524)

[107] Exhibit PJ7 (Tribunal Book, pages 1646-1649)

[108] Exhibit PJ7 (Tribunal Book page 1647)

[109] Exhibit PJ7 (Tribunal Book page 1648)

[110] Exhibit PJ7 (Tribunal Book page 1648)

[111] Exhibit PJ7 (Tribunal Book, page 1648)

[117] Transcript of proceedings, page 142 lines 29-31

[118] Transcript of proceedings, page 145 line 24 to page 146 line 18

[119] Transcript of proceedings, page 160 lines 14-18

[120] Transcript of proceedings, page 160 lines 37-41

[121] Transcript of proceedings, page 160 line 37 to page 161 line 6

[122] Transcript of proceedings, page 152 line 25

[123] Transcript of proceedings, page 156 lines 31-32

[125] Part A1 - Interpretation defines 'Registered Testing Authority' to mean an organisation: (a) registered by the National Association of Testing Authorities (NATA) to test in the relevant field; (b) outside Australia registered by an authority recognised by NATA through a mutual recognition agreement; or (c) recognised as being a Registered Testing Authority under legislation at the time the test was undertaken.

[126] Part A1 - Interpretation defines 'Certificate of Conformity' to mean a certificate issued under the ABCB scheme for products and systems of certification stating that the properties and performance of a building material or method of construction or design fulfil specific requirements of the BCA.

[129] Exhibit R6 (Tribunal Bundle, page 681)

[130] AS 1288, clause 1.4.54; AS/NZS 2208 clause 1.4.12

[131] AS 1288, clause 1.4.32; AS/NZS 2208, clause 1.4.4

[133] The classification of glazing materials as Grade A or Grade B is covered by AS/NZS 2208.

[134] Standards Australia Handbook HB 125-2007 'The glass and glazing handbook (Including guide to AS 1288 - 2006, Glass in buildings - Selection and installation' referenced in Exhibit PJ3 (Tribunal Book, page 2391)

[135] Exhibit A1, Tab 17 (Tribunal Bundle, page 1523)

[136] This appears to be a reference to British Standard BS 6206: 1981 - Specification for impact performance requirements for flat safety glass and safety plastics for use in buildings

[137] This appears to be a reference to American National Standard ANSI Z97.1: Safety Glazing Materials Used in Buildings

[138] Exhibit R3 (Tribunal Book, page 303)

[139] Exhibit R2 (Tribunal Book, page 56)

[140] Exhibit R1 (Tribunal Book, page 16)

[141] Exhibit PJ3, paragraph 258 (Tribunal Book, page 2393)

[143] Exhibit PJ-1, paragraphs 5.4, 5.5 (Tribunal Book, page 2279)

[144] Exhibit PJ1, paragraph 10.2 (Tribunal Book, page 2305)

[149] Transcript of proceedings, page 166 lines 1-2.

[150] Exhibit R2 (Tribunal Book, page 56)

[151] Exhibit R3 (Tribunal Book, page 303)

[152] Exhibit R3 (Tribunal Book, page 303)

[156] Victory Homes Pty Ltd v Construction Occupations Registrar [2020] ACAT 53 at [83]- [85]

[158] COLA, section 123A; COL Regulation, section 42A and Schedule 4

[165] Respondent's Closing Submissions, dated 25 May 2023 at paragraph 57

[168] Applicant's Outline of Closing Submissions, 25 May 2023, [146]

[169] Applicant's Outline of Closing Submissions, dated 25 May 2023 at paragraph 147

[171] see e.g. Director-General Community Services Directorate v HJ [2018] ACTSC 6 at [93] per McWilliam AsJ (as she then was)

[172] GJ v AS (No 4) [2017] ACTCA 7 at [95]

Civil and Administrative Tribunal Act 2008

Construction Legislation Amendment Act 2016

Occupations (Licensing) Act 2006

Titles (Management) Act 2011

(General) Regulation 2008

Occupations (Licensing) Regulation 2004

Occupations (Licensing) Act 2004

Construction Legislation Amendment Act 2019

Occupation (Licensing) Regulation 2004

JOLLEY v CONSTRUCTIONS OCCUPATIONS REGISTRAR & ANOR (Administrative Review) [2023] ACAT 65 (26 October 2023)

Legislation cited: ACT Civil and Administrative Tribunal Act 2008, ss 68, 69

Building Act 2004 (R16), ss 37, 42, 49, 51, 88, 136, 142

Building and Construction Legislation Amendment Act 2016, ss 7, 8

Construction Occupations (Licensing) Act 2006 (R26), ss 6, 16, 28, 31, 34, 35, 36, 38, 123, 123A, 123B, 123C

Legislation Act 2001, ss 97, 104, 144

Unit Titles (Management) Act 2011, s 28

Subordinate

Legislation cited: Building (General) Regulation 2008 (R11), ss 6, 31, 32, 43A

Construction Occupations (Licensing) Regulation 2004 (R22), ss 19, 42A, 42B

Cases cited: B & T Constructions (ACT) Pty Ltd v Construction Occupations Registrar [2013] ACTSC 219

CIC Australia Pty Ltd v ACT Planning and Land Authority [2013] ACTSC 96

Hill v Construction Occupations Registrar [2021] ACAT 21

Jolley v Construction Occupations Registrar & Anor [2021] ACAT 112

Jolley v Construction Occupations Registrar & Anor [2022] ACAT 47

Koundouris v The Owners - Units Plan No 1917 [2017] ACTCA 36

Victory Homes Pty Ltd v Construction Occupations Registrar [2020] ACAT 53

JOLLEY v CONSTRUCTIONS OCCUPATIONS REGISTRAR & ANOR

At a glance

Court

Decision date

Before

Source

Judgment (124 paragraphs)

Parties

Legislation Cited (9)

Cases Cited (2)

JOLLEY v CONSTRUCTIONS OCCUPATIONS REGISTRAR & ANOR (Administrative Review) [2023] ACAT 65 (26 October 2023)

Cited By (1)