On 1 February 2024, the Building Commissioner issued a building work rectification order (BWRO) under the Residential Apartment Buildings (Compliance and Powers) Act 2020 (RAB Act) against a developer alleging “serious defects” in the building works carried out by the builder that was engaged by the developer in relation to an apartment building in in Jannali NSW.
Our commercial litigation lawyer, Jason Koh, acted for the builder in this case.
As the builder was not itself the subject of the BWRO, it could not appeal against the BWRO to the Land and Environment Court, which is the usual course. The builder questioned the legality of the BWRO and urged the developer to appeal against it. The developer did not do so and the time for it to appeal against the BWRO expired.
The builder then filed an application for judicial review of the legality of the BWRO to the Supreme Court, seeking that the BWRO be set aside because the Building Commission exceeded his powers under the RAB Act on numerous grounds including:
- many of the “serious defects” alleged cannot properly be considered “serious” (and the Building Commission has no power to issue a building work rectification order for defective building work that is not “serious”); and
- in alleging some of the building works were “serious defects”, the Building Commissioner relied upon the mere failure of those works to meet their respective “deemed-to-satisfy” solutions of the National Construction Code, whereas the RAB Act required that the building works must fail to meet their respective “performance requirements”.
After about one year of progressing the matter in the Supreme Court, the Building Commission, two business days before the final hearing of the builder’s application, revoked the BWRO, effectively surrendering to the builder’s application.
The Building Commissioner was ordered by the Supreme Court to pay the builder’s legal costs. You can view the Supreme Court’s judgment on the question of costs here: https://www.caselaw.nsw.gov.au/decision/197426ede9adddc200ea7c9f
This case highlights that:
- Public bodies do not always make their decision according to law, and such decisions are liable to be set aside. Before acceding to the demands of a public body’s decision, you should give consideration to and obtain legal advice about the legality of that decision.
- Even if a public body makes a decision that is not directed at you but may still affect you in some indirect way, you should obtain legal advice about protecting or advancing your position.