Victorian Civil and Administrative Tribunal|2003-08-01|Before: Mr J

Mt Holden Estates Pty Ltd v Lanigan Baldwin Pty Ltd [2003] VCAT 937 (1 August 2003)

domestic building - work to which the Act applies -

Lanigan Baldwin Pty Ltd, Winslow Constructions Pty Ltd

2. Accordingly, I determine the Tribunal has jurisdiction.

3. The Summonses of the First and Second Respondents (dated, respectively, 21 November 2002 and 17 December 2002) are dismissed.

4. I reserve liberty to the Applicant to make application for costs.

5. I direct that this matter be returned to a directions hearing. Allow two hours.

1. In the Application in this matter, filed on 25 October 2002, the Applicant seeks damages from each of the Respondents. The Application is brought also under the Fair Trading Act 1999.

2. In a summons filed on 21 November 2002 the Second Respondent seeks the dismissal or the striking out of the proceedings.

3. In a separate Summons filed on 17 December 2002, the First Respondent seeks, in effect, the same orders.

4. In support of their respective positions numerous affidavits have been filed with the Tribunal. The include the following - affidavit of Dino Stranio sworn 21 November 2002 and 28 February 2003; Nicholas Mitchell sworn 17 December 2002; Paul Cummaudo sworn 17 January 2003, 21 January 2003, 22 January 2003 and 5 February 2003; Francis Ryan sworn 21 January 2003; Louis Sartori sworn 27 February 2003, 20 March 2003 and 26 March 2003; Prakash Raniga sworn 19 March 2003; James O'Donahue sworn 20 March 2003; Vincent de Fazio sworn 26 March 2003; Sarah Field sworn 31 March 2003. I have read and considered the contents of each of these affidavits. I have also read and considered the lengthy written submissions provided by each party. Short summaries have also been received.

1. The applicant ("Mt. Holden") is and was at all material times the:

(a) owner of the land known as Mt. Holden Estate situated at 250 Reservoir Road, Sunbury ("the Land"); and

(b) developer of a residential subdivision on the Land.

2. The first respondent ("Lanigan") is and was at all material times a consulting engineer.

3. The second respondent (whose correct name is Winslow Constructors Pty Ltd) ("Winslow") performed earthmoving and civil engineering works at all material times.

4. The Land was to be the subject of a subdivision into residential lots by Mt. Holden in four stages, namely Stages 1, 2, 3 and 4 ("the subdivision")

5. Lanigan was retained by Mt. Holden in relation to each Stage of the subdivision to:

(a) design the construction of roads, drainage, water and sewer reticulation works upon the Land for each stage of the subdivision in accordance with the requirements of the Hume City Council and the relevant utility authorities ("the works");

(b) act as superintendent under the respective contracts for each stage of the subdivision.

6. The works for Stage 1 of the subdivision are not in dispute in this proceeding (as someone other than Winslow performed them).

7. Mt. Holden engaged Winslow to carry out the works for Stage 2 of the subdivision on the Land.

8. The engagement of Winslow to perform the Stage 2 works was pursuant to a written contract made on or about 13 February 2001 between Mt. Holden and Winslow.

9. The scope of the works for Stage 2 of the subdivision and the works to be performed under that contract by Winslow are set out in the contract documents, including the engineering drawings.

10. The scope of works described for Stage 2 of the project in the contract is stated as "earthworks, roadworks, drainage, sewer and water reticulation construction (section 4 paragraph 2 specification for contract No. 3078/2)

11. The Stage 2 works by Winslow for Mt. Holden achieved practical completion on 12 December 2001, alternatively 16 November 2001 and a three month maintenance period in accordance with the Subdivision Act 1988 commenced.

12. On or about 21 September 200 1, Winslow was engaged by Mt. Holden carry out the works for Stages 3 and 4 of the subdivision on the Land.

13. This engagement was pursuant to a written contract constituted by agreed contract documents.

14. The scope of works for Stages 3 and 4 of the subdivision and the works to be performed under that contract by Winslow are set out in such contract documents, including the engineering drawings.

15. The scope of works described for Stages 3 and 4 of the project in the contract is stated as "earthworks, roadworks, drainage, sewer and water reticulation construction (section 4 paragraph 2 specification for contract No. 3078/3).

16. Practical completion of the Stage 3 and 4 works by Winslow was achieved on 23 July 2002 and a three month maintenance period in accordance with the Subdivision Act 1988 commenced.

17. Winslow performed the works on the Land set out in the contract documents for Stage 2 and for Stages 3 and 4 of the subdivision, including performing the works set out on the engineering plans which form part of those contract documents.

18. A statement of compliance in relation to each stage of the project to be issued under the Subdivision Act 1998, is a pre-condition to the issuing of titles by the Registrar of Titles in relation to a plan of subdivision.

19. As at 25 October 2002, the date of the Application, no statement of compliance was issued under the Subdivision Act 1988 in respect of the Stage 2 or Stages 3 and 4 works performed by Winslow for Mt. Holden and no Titles relating to Stages 2, 3 and 4 had been issued.

20. The works were carried out before the subdivision plan was approved and titles were issued by the Registrar of Titles.

21. Neither Winslow nor Mt. Holden has built any homes on the Land.

(b) no homes being constructed or completed on the Land; and

(c) no contracts for the construction of any homes on the Land;

in respect of that part covered by the Stage 2 works, at any time from the time when Winslow commenced those works until practical completion was achieved.

23. As at 28 February 2003 there was one home in the process of being constructed on the Land in respect of that part covered by the Stage 2 works. This home is a display home constructed by or on behalf of Mt. Holden.

24. During the time that the works on stage 2 and stages 3 and 4 were performed by Winslow, there were:

(b) no homes being constructed or completed on the Land;

(c) no domestic building contracts for the construction of any homes on the Land;

(d) no titles issued by the Registrar of Titles in relation to the land; and

(e) no sales of any titles to any prospective homeowner.

25. As at 28 February 2003 there were still no homes, in the process of being constructed or completed, on the Land in respect of that part covered by the Stage 3 and 4 works.

26. The planning authorities, permits and regime applicable to the Land are set out in:

(d) the agreed extracts from the Hume planning scheme.

6. It is also agreed that the following are in dispute:-

(a) Whether any part of the works carried out by either of the Respondents falls within s.5 of the Domestic Building Contracts Act 1995;

(b) Whether either of the Respondents is a builder as defined in such Act;

7. Relevant provisions of the Domestic Building Contracts Act 1995 are as follows:-

builder" means a person who, or a partnership which-

(b) manages or arranges the carrying out of domestic building work; or

(c) intends to carry out, or to manage or arrange the carrying out of, domestic building work;

"domestic building dispute" has the meaning set out in section 54;

(a) the erection or construction of a home, including-

(i) any associated work including, but not limited to, landscaping, paving and the erection or construction of any building or fixture associated with the home (such as retaining structures, driveways, fencing, garages, carports, workshops, swimming pools or spas); and

(ii) the provision of lighting, heating, ventilation, air conditioning, water supply, sewerage or drainage to the home or the property on which the home is, or is to be;

(b) the renovation, alteration, extension, improvement or repair of a home;

(c) any work such as landscaping, paving or the erection or construction of retaining structures, driveways, fencing, garages, workshops, swimming pools or spas that is to be carried out in conjunction with the renovation, alteration, extension, improvement or repair of a home;

(e) any work associated with the construction or erection of a building-

(i) on land that is zoned for residential purposes under a planning scheme under the Planning and Environment Act 1987; and

(ii) in respect of which a building permit is required under the Building Act 1993;

(f) any site work (including work required to gain access, or to remove impediments to access, to a site) related to work referred to in paragraphs (a) to (e);

(g) the preparation of plans or specifications for the carrying out of work referred to in paragraphs (a) to (f);

(h) any work that the regulations state is building work for the purposes of this Act.

(2) A reference to a home in sub-section (1) includes a reference to any part of a home.

6. Building work to which this Act does not apply

(a) any work that the regulations state is not building work to which this Act applies;

(b) any work in relation to a farm building or proposed farm building (other than a home);

(c) any work in relation to a building intended to be used only for business purposes;

(d) any work in relation to a building intended to be used only to accommodate animals;

(e) design work carried out by an architect or a building practitioner registered under the Building Act 1993 as an engineer or draftsperson;

(f) any work involved in obtaining foundations data in relation to a building site;

(g) the transporting of a building from one site to another.

(1) A "domestic building dispute" is a dispute or claim arising-

(ii) a building practitioner (as defined in the Building Act 1993); or

(iv) an architect- in relation to a domestic building contract or the carrying out of domestic building work; or

(ii) a building practitioner (as defined in the Building Act 1993); or

(iv) an insurer- in relation to a domestic building contract or the carrying out of domestic building work; or

(ii) a building practitioner registered under the Building Act 1993 as an engineer or draftsperson- in relation to any design work carried out by the architect or building practitioner in respect of domestic building work.

(2) For the purposes of sub-section (1), a dispute or claim includes any dispute or claim in negligence, nuisance or trespass but does not include a dispute or claim related to a personal injury.

(3) A reference to a building owner in this section includes a reference to any person who is the owner for the time being of the building or land in respect of which a domestic building contract was made or domestic building work was carried out."

8. The submission of the Applicant is that the jurisdiction of the Tribunal has been properly invoked in this case. The Applicant (which, as appears, is a property developer) submits that the works carried out by the Respondents are works to which s5 of the 1995 Act applies. Reliance is placed on ss5(1)(a), 5(1)(e), 5(1)(f) and 5(1)(g). Accordingly, such works fall within the definition of "domestic building work" under s3(1) of the Act. From this it is said to follow that the contracts under which those works were carried out are each a "domestic building contract" also under s3(1). Therefore the disputes between the parties over such works or under such contracts are domestic building disputes. See again s3(1) and also s54(1) of the Act. It is submitted also that each Respondent is a "builder" under the Act, as that expression is defined. It submits it is also a "building owner" for the purposes of the Act. The net result, is, therefore, that the Tribunal has jurisdiction. The Summonses, thus, should be dismissed.

9. The Second Respondent submits, however, that the Tribunal does lack jurisdiction. It submits that it is not a "builder" within the Act and the Applicant is not a "building owner". It is said the Applicant "is a land developer for profit". The Act, it is said, applies to residential land owners and builders and should not be held to apply in this case. It is submitted that the actual existence of a house or building "is a precondition to the operation of the Act". However the works of the Second Respondent under its contract do not involve the "erection or construction" of a house or a building under s5. The construction of any houses, it is said, "is well in [sic] the future and not certain". They are works of a "preparatory or infrastructural" kind, namely "earthmoving and certain civil engineering works". They are not within the definition of "domestic building work". They cannot, therefore be carried out under a "domestic building contract" as defined. If so, disputes under the contract cannot be domestic building disputes under s54(1). The Act, thus, does not apply to give the Tribunal jurisdiction. It is said that, if the Act applies to the Second Respondent, "it would lead to disruption and confusion in the earthmoving and civil engineering industries".

10. Further the Second Respondent submits that the Tribunal lacks jurisdiction in any event because of the Subdivision Act 1988 which applies instead to the activities of the Second Respondent. It is argued, having regard to provisions in that Act, that the works carried out by the Second Respondent are not domestic building works, but are, rather, subdivision works carried out on the land in question under the Subdivision Act to satisfy permit conditions. That Act, it is submitted, regulates "infrastructure" work, such as the work here, whereas the Domestic Building Contracts Act is concerned with "regulating the construction of homes and with relationships between homeowners and builders". The two Acts thus regulate "separate and distinct spheres of activity".

11. The First Respondent says that it was the engineer engaged to design the works and to act as superintendent under the construction contracts. But it says the claims made against it do not arise out of a domestic building dispute under s54(1) of the Act. The Applicant is not a "building owner" and the works carried out were not domestic building works. Thus the 1995 Act does not apply. The dispute is not one arising, moreover, in relation to a domestic building contract as required by the Act. In particular, the work of the First Respondent is not "domestic building work" under s5. It was infrastructure work relating to a proposed residential subdivision: it was work relating to the design and construction of wetlands. The Act should be read as one regulating the rights and obligations of builders and homeowners in relation to the construction of residential dwellings. Here, however, there was no home on the land when the works were performed; nor, as regards s5(1)(a)(i) was there any associated work. The Act should be read as a whole to exclude it from applying to infrastructure works carried out for a proposed subdivision. The Act therefore does not apply in this case. Indeed, on such a construction, it may be said that the Act was designed to deal with building disputes of a "modest" nature and not with "large commercial transactions involving developers". In any event, considering its provisions, the Act does not apply in this case to give jurisdiction.

12. It is perfectly true that in Fletcher Construction Australia Ltd v Southside Tower Development Pty Ltd (unreported, 9 October 1996) Byrne J said that Parliament's intention in the 1995 Act was "to provide a legislative framework for contracts and disputes concerning building work of a more modest character and to protect parties to more conventional domestic building projects from the consequences of an inequality of bargaining power rather than to interfere with major commercial transactions". This was quoted by Eames JA in HIA Insurance Services Pty Ltd v Davy [2003] VSCA 73 at [36]. It remains true, however, that developers are not a class apart for any purpose whatever. In particular, though, they are not excluded from the operation of the 1995 Act. The criterion for the operation of the Act is not the modesty of one's means. The fact is that the 1995 Act extends to commercial undertakings if its requirements otherwise are satisfied. The work "home" is even defined to mean "any residential premises" and to include "any part of a commercial or industrial premise" that is used as a residential premise. See s3(1) Cases of modest character, and other cases too, fall within the 1995 Act if it applies.

13. Equally, I reject any analysis of the 1995 Act, if this was what was intimated by the Second Respondent, that a land developer for profit somehow stands outside the Act because they cannot be a building owner. Anyone, if they meet the statutory definition, is capable of being a building owner no matter whether they are a land developer for profit or not. Building owners are building owners, if they meet the Act's requirements, whether they are also land developers for profit or not.

14. It is well known that the Domestic Building Contracts Act 1995 has a distinct consumer focus but the correct approach to interpreting the Act is to eschew pre-conceptions. Its object however may be considered by virtue of s35(a) of the Interpretation of Legislation Act 1984. Otherwise, though it is a matter of construing its provisions. It is then a matter of deciding whether something does or does not fall within a provision once properly construed. If it does fall within its provisions, meaning the Act applies, then that is an end of the matter. It is also an end of a matter if it does not fall within the Act's provisions. For, then, the Act does not apply, by definition. It would be a case of acute conflict between Acts, if something did not fall within its provisions only because it falls within the provisions of some other Act. Conflicts of this nature between Acts, fortunately, are rare. See, for example, comments of Aickin J in China Ocean Shipping Co v South Australia [1920] ArgusLawRp 118; (1980) 27 ALR 1 at 25.

15. I have considered the submission of each of the parties in light of the materials on affidavit and in light of the agreed facts. Having done so, I must indicate that I reject the view that the Tribunal lacks jurisdiction in this matter. In my view the Tribunal does have jurisdiction.

16. In the first place I am satisfied that the case comes under s5 of the 1995 Act. The Act in my view applies to the work carried out by either or both of the Respondents. In that regard, I have considered also the objects of the Act set out in s4. See Interpretation of Legislation Act 1984 s35(a). This means that the work is "domestic building work" under the Act: see s3(1) ("domestic building work"). Each contract under which such work was carried out is in my view a "domestic building contract": see s3(1) ("domestic building contract"). Each Respondent was at the time, I am satisfied, a "builder" as defined carrying out work for the Applicant which was a "building owner": see s3(1) ("builder" and "building owner") and s54(2). Disputes between them arising in relation to such contracts or in relation to the carrying out of such work are, therefore, in my view, domestic building disputes within the definition of "domestic building dispute" in s3(1) ("domestic building dispute") and s54(1) of the Act.

17. As regards both ss s5(1)(a)(i) and (ii) I reject the view that a home must actually be in existence before the Act can apply. The Act nowhere says, expressly, that that must be so. It is in my view, a misreading of s5(1)(a) to say that that is what is intended. The focus of s5(1)(a) is not the erection or construction of a home. It is, rather, work done on its erection or construction. Although the Act applies to homes when they come into existence, it applies in the meantime to work done on their erection or construction. It is not possible, in my view, to read s5(1)(a) any other way. If the Act applied only to homes after they come into existence (that is, that the actual existence of a home or building "is a precondition to the operation of the Act") work done on their erection or construction beforehand would not be within the Act. Yet, on a plain reading of s5(1)(a), this could not possibly be so. The Act in my view applies both to existing homes and to work done on the erection or construction of homes being built.

18. This reading of s5(1)(a) is made all the plainer, I consider, by para (ii). That refers to "the home or the property on which the home is, or is to be". Clearly, in my view, Parliament contemplated the Act applying even though a home was not yet in existence. That is why it referred to a home which "is, or is to be". The words "is to be" must indicate future tense. In terms of s5(1)(a)(ii), this shows that Parliament intended the Act to apply to the provision of the services in question even if a home was not yet in existence. It must follow from this consideration alone that the existence of a home cannot be a precondition to the application of the Act at all. But it follows, in any event, from a plain reading of s5(1)(a) itself.

19. In the circumstance that, as at 28 February 2003, only one home (a display home at that) was in the process of being constructed, I do not see, therefore, that the Act cannot apply. The whole of the land in time is, or was to be, the subject of subdivision into residential lots. This means, I would think, that homes will be built on the land. They are future possible homes, it is true, that do not yet exist. But I do not think that, before the Act can apply to works "associated" with the erection or construction of such homes, the homes must first exist. Parliament in my view, as I have indicated, cannot be taken to have spoken only of homes actually existing in order for the Act to apply. In my view the Act, including s5(1), lies in wait, as it were, for homes to be erected or constructed from time to time whether on the Applicant's or anyone else's land. But it applies in the meantime to work done on their erection or construction. In the meantime, also, it applies to "associated work" by virtue of s5(1)(a)(i).

20. There is nothing in s5(1)(a)(i) that prevents the Act from applying to "associated" works carried out in advance of the erection or construction of a home. That is, if, also, the works truly are "associated" works. I do not consider Parliament would have intended the 1995 Act to apply to "associated" works carried out only after a house was erected or constructed. By ordering their work, in a particular way, parties might, by that means, overcome the effects of the legislation. This is not consistent with the objects of the Act (in particular the object in s4(a)) and I should not interpret the Act in a way that defeats its objects. But if I do interpret the Act this way, it is apparent that Parliament was mindful that the Act should extend to works done on future possible homes. That is another reason why s5(1)(a) is not confined to homes already built. If it was, otherwise "associated" works might be carried out, before a home was built, to which the Act did not apply, to which it otherwise would apply. In legislation with a consumer focus, Parliament cannot have intended this result. Often, the mischief, which Parliament is dealing with in the Act, is in the work done on erection or construction, rather than in the finished product.

21. If s54(1)(a) does not require a home to be actually erected or constructed for the Act to apply, then it is still a matter of deciding whether works are "associated" or not under para (i). The word "associated" is not defined in the Act but is used also in s54(1)(e) while s54(1)(c) uses the expression "in conjunction with". Although the Act does not define the word, s54(1)(a)(i) mentions "associated" work as including "landscaping" and "paving" and also the construction of any building or fixture "associated with the home" and there it mentions "retaining structures, driveways, fencing, garages, carports, workshops, swimming pools or spas". At no stage, though, does s5(1)(a)(i) exhaust the word "associated" because it is defined only ever inclusively - "associated work, including, but not limited to...". Similarly when it uses the expression "associated with" - "associated with the home (such as...)".

22. In my view, work is "associated work" under s5(1)(a)(i) if it is work which is related to the home or to the erection or construction of a home. In my view it cannot be work which is "associated", if it is work which is unrelated. For, then, there would no association. The word "associated" itself indicates the need for the work to be related, but that need is indicated also by the examples of "landscaping" and "paving" which are given. Work done on landscaping and paving is work which is related to a home or to the erection or construction of a home. Usually the home will be a new home of course, but that is not a material consideration in the present context. But if the work is related to a home the erection or construction of a home then, in my view, it is "associated work". However, it is not "associated work" if it is not related.

23. Accepting, as I do, that s5(1)(a) (and paras (i) and (ii)) do not require a home to be actually in existence before the Act can operate, it is a matter then of deciding whether the activities of the First and Second Respondents are included or not.

24. I am reasonably satisfied that the activities of the Respondents do not fall under s5(1)(a) as "erection or construction" work on a home. Those words in my view include only work done on actual erection or construction (such as foundations or footings and framing work) and do not extend to work done of a preliminary kind (such a site levelling) which enables erection or construction to take place. The provision in s5(1) is concerned with the work done on the erection or construction of a home and not with work done which enables erection or construction work to be undertaken or to be commenced.

25. The First Respondent was retained to design the construction of roads, drainage, water and sewer reticulation works for each stage of the subdivision and to act as superintendent under the contracts for each stage. The Second Respondent was engaged to actually carry out the works stated as "earthworks, roadworks, drainage, sewer, and water reticulation".

26. It may be correct to characterize the activities of the First and Second Respondents as "preparatory" or "infrastructural" but these are not expressions used in the Act in s5(1)(a)(i). Categorizing them in this way cannot be the answer or defining criterion to whether they are "associated" works or not. The test of association, in my view, is relational as I have said. It is not whether something occurs earlier in point of time than another, or whether it is preliminary or not except as I have indicated. If something is related, it is, in my view, associated irrespective of when it occurs or at what stage it occurs save as I have mentioned. It is not a question of whether it is ancillary or adjunctive if there is no relation bringing about association in the first place. In any event I would have thought that "landscaping" and "paving", particularly on new estates, are preparatory or infrastructural. They may occur before any new home erection or construction takes place. Landscaping, particularly, may be needed before any erection or construction actually takes place. Yet s5(1)(a)(i) gives, as instances of "associated work", work done on "landscaping" and "paving". Clearly, then, preparatory or infrastructural works at least of this kind are not excluded.

27. The activities of the Respondents, though, are, I think, relational to new home construction, and meet the test of association. To enable new home construction on an estate, as in this case, earthworks, roadworks etc are clearly needed. Without them, new home construction cannot go ahead. Homes require drainage, sewer etc. But none of those are works which are carried out without design input. They do not occur haphazardly. Equally, the contracts under which they are carried out need superintendence to ensure that they are carried out properly and in accordance with contractual specifications and stipulations.

28. In my view, therefore, the activities of the First and Second Respondents fall within s5(1)(a) or s5(1)(a)(i) of the Act. I reject a view that for either such provision to operate a home must already be in existence. I consider their activities fall within the description of "associated work" done on the erection or construction of a home under s5(1)(a)(i).

29. At the same time I am not satisfied, however, that the works of the Respondents fall within the latter part of s5(1)(a)(i). I am not satisfied that what they have been doing is work on the "erection or construction of any building or fixture associated with the home". They have not, to my mind, engaged in any work on the erection or construction of any building of fixture etc. Their work is not, in my view, work on "retaining structures, driveways, fencing, garages, carports, workshops, swimming pools or spas" which are the statutory examples given.

30. On the other hand, I consider that the activities of the Second Respondent do also fall within s5(1)(a)(ii). Once more I indicate my view that under s5(1)(a) it is not necessary for a home to be already in existence for the Act to apply. This is made all the clearer, though, in the case of s5(1)(a)(ii), because, as I have mentioned, it refers to the provision of services to the home or to the property on which the home "is to be". This is very plainly speaking in the future tense. The services which are mentioned in s5(1)(a)(ii) include "water supply, sewerage or drainage". The Act applies to work which is done on those, by virtue of s5(1)(a)(ii). Yet if I consider the Second Respondent's contract with the Applicant, I note that the Second Respondent is engaged to carry out works which include "drainage, sewer and water reticulation".

31. I have mentioned the submission of the Second Respondent that the works of the Second Respondent cannot be domestic building works under s5(1)(a) or s5(1)(a)(i), or otherwise, because they are subdivision works under the Subdivision Act 1998. That Act, however, and the Domestic Building Contracts Act 1995 are not mutually exclusive. Work under one may also qualify as work done under the other. I was not persuaded by the contrary contention. In any event, work under the Subdivision Act 1988 is not excluded from the Domestic Building Contracts Act under s6 of the latter which is the critical reference point. When passing the latter Act, Parliament had a clear opportunity to exclude work done under the former and, expressly, did not do so. In any case if there was a conflict between the two Acts, Parliament's later expression of intention, in the 1995, prevails.

32. I have mentioned so far only s5(1)(a) of the 1995 Act.. But I consider that the case against both Respondents, as far as jurisdiction is concerned, comes plainly under s5(1)(e) in any event. I may take it on the materials, I think, that s5(1)(e)(i) is satisfied: that the Applicant's land is zoned residential under a planning scheme under the Planning and Environment Act 1987. I think I may take it also on the materials that s5(1)(e)(ii) is satisfied, namely, that any building constructed or erected on that land would require a building permit under the Building Act 1993. But once both paras (i) and (iii) are satisfied, if I assume this is so, it is then only a question of whether the opening words of s54(1)(e) are satisfied also - "any work associated with the construction or erection of a building". In my view, however, those words are satisfied in this case. I consider a "building" as defined in s3(1) of the Act includes a home. A "building" includes any structure and a "home" means any residential premises. Homes are built on the Applicant's land and, if and when built, each of these will be, in my view, a structure. Again, as with s5(1)(a) I do not consider that a building must be in existence, first of all, for s5(1)(e) to operate. I have the same reasons for saying so as before. In the case of this provision, though, the situation is made, I think, clearer in that s5(1)(e)(ii) speaks of a building permit which "is required" and not of one which has been obtained: in other words, it is contemplating, plainer still, future buildings. If so, then it is a question again of deciding whether the works of the First and Second Respondents are works "associated with" the construction or erection of a building. Those words, in my view, carry also the same relational requirement as before namely that such works which are not related to the construction or erection of a building are not associated with it. But, in my view, the works of the First and Second Respondents are plainly so related for the reasons I have given and, in my view, are, for those same reasons, "associated".

33. There is also a question whether jurisdiction exists under s5(1)(f) of the Act so far as concerns at least the Second Respondent. The expression "site work" is not defined but examples are given of "work required to gain access, to remove impediments to access, to a site". In my view the work undertaken by the Second Respondent is "site work" within the ordinary meaning of that expression in that the Second Respondent has engaged in earthmoving works on site. That work would seem to me to be site work. Perhaps even it may fairly be said that the Second Respondent's earthmoving has had as one of its purposes the removal of impediments to access to the site. If so, and in so far as so, site work is clearly involved. But if site work is involved in the case of the Second Respondent I cannot see it as other than "related to" the work in s5(1)(a)(i) or s5(1)(a)(ii) or s5(1)(e). The words "related to" are words of wide import. But earthmoving work ("earthworks") and work on drainage, sewer and water reticulation, all seem to me to be, if "site" works, then site works related to the erection or construction of homes or related to associated work or related to the erection or construction of buildings or related to associated work.

34. Lastly I should wish to mention also s5(1)(g). This seems to concern only the First Respondent directly. In my view, jurisdiction can also be justified against that party under this provision. The First Respondent's retainer is one to provide design and superintendency. Design work of the kind in question presumably does involve the preparation of plans and specifications. If so then it seems to me that s5(1)(g) applies. I could only see the plans and specifications as ones relating to the erection or construction of homes or buildings or relating to associated work. It seems to me that their preparation is solely for the purpose of carrying out such work. However, if not so, I could see them as being for the carrying out of site work by the Second Respondent. On this basis, work done on their preparation is work to which the Act applies by virtue of s5(1)(g).

35. To answer the first question posed for my consideration, for the reasons I have given, I am satisfied that all of the works, or such parts as the provisions relate to, carried out by both of the Respondents do fall within s5 of the Domestic Building Contracts Act 1995.

36. I consider that in carrying out relevant works each such Respondent was a builder as defined in the Act. The work was in my view domestic building work under s5 of the Act (see s3(1)) and each Respondent at the time was carrying out such work and was thus a "builder" within the definition of that expression in s3(1).

37. I consider that any dispute arising between the parties in relation to such works is a domestic building dispute. See s3(1) ("domestic building dispute"). I regard the Applicant as a "building owner" as defined in s3(1) ("building owner"). A building owner is a person for whom domestic building work is being carried out. Or, as in the case of the Applicant, a building owner is the owner of land in respect of which a domestic building contract was made or domestic building work was carried out: see s54(3). That definition is, I consider, satisfied in this case.

38. I determine the Tribunal does have jurisdiction.

39. In consequence I dismiss the Summonses of the First and Second Respondents.

40. I direct that this matter be listed for directions when convenient.

Subdivision Act 1998

Fair Trading Act 1999

Environment Act 1987

Mt Holden Estates Pty Ltd v Lanigan Baldwin Pty Ltd [2003] VCAT 937

At a glance

Court

Decision date

Before

Source

Judgment (119 paragraphs)

Mt Holden Estates Pty Ltd v Lanigan Baldwin Pty Ltd [2003] VCAT 937 (1 August 2003)

Parties

Legislation Cited (3)

Cases Cited (1)