{"id":2091,"date":"2020-08-21T05:25:21","date_gmt":"2020-08-21T05:25:21","guid":{"rendered":"https:\/\/kerinbensonlawyers.com.au\/resources\/?p=2091"},"modified":"2020-08-23T04:19:02","modified_gmt":"2020-08-23T04:19:02","slug":"act-case-note-victory-homes-pty-ltd-v-construction-occupations-registrar-anor-administrative-review-2020-acat-53","status":"publish","type":"post","link":"https:\/\/kerinbensonlawyers.com.au\/resources\/act-case-note-victory-homes-pty-ltd-v-construction-occupations-registrar-anor-administrative-review-2020-acat-53\/","title":{"rendered":"ACT Case Note: VICTORY HOMES PTY LTD v CONSTRUCTION OCCUPATIONS REGISTRAR & ANOR (Administrative Review) [2020] ACAT 53"},"content":{"rendered":"

This application was for review of a decision by the respondent on 22 March 2019 to make a rectification order pursuant to section 38 of the Construction Occupations (Licensing) Act 2004<\/em> (COLA<\/strong>) requiring the applicant to take certain stated actions to rectify building work done at premises in Bruce, ACT (premises<\/strong>).<\/p>\n

The applicant raised a threshold issue whether, on the proper construction of section 35(3) of COLA, the rectification order made on 22 March 2019 was invalid because it was made more than 10 years after the day on which the \u2018act that caused the contravention happened, or ended\u2019, which the applicant claimed was a day that was earlier than 18 September 2008, when a certificate of occupancy was issued. The applicant\u2019s position was that if the Tribunal was satisfied that the 10 year period had expired, the Tribunal should make an order under section 68(3) of the ACT Civil and Administrative Act 2008<\/em> (ACAT Act<\/strong>) setting aside the decision and substituting a decision not to make a rectification order on the grounds that the respondent had no jurisdiction to do so, without entering upon the merits of the decision.<\/p>\n

The applicant acknowledged that its submissions were contrary to a decision of the Tribunal in Koundouris v Construction Occupations Registrar & Ors <\/em>(Administrative Review) [2015] ACAT 92 (Koundouris<\/em><\/strong>) but submitted that the decision was wrong and that we should not follow it.<\/p>\n

As it appeared that a preliminary question would dispose of this issue without the need for a full hearing on the merits, a preliminary question was formulated as follows: whether on the proper construction of section 35(3) of COLA when the respondent made the rectification order, the 10 year period mentioned in section 35(3) had expired such that the respondent had no power to make the order?<\/p>\n

However, during the hearing of the preliminary question it became apparent that the answer to the preliminary question would not have any relevance to the outcome of the hearing.<\/p>\n

In short, the limitation on the registrar\u2019s power to make a rectification order arises if, and only if, two conditions are met: first, that \u201ca submission is made\u201d and second, that the \u201csubmission \u2026 satisfies the registrar\u201d that the act that caused the contravention happened, or ended, more than 10 years before the relevant day. The \u2018submission\u2019 referred to in section 35(3) is the \u201csubmission made within the time mentioned in the notice\u201d referred to in section 35(1)(c).<\/p>\n

ACAT was satisfied that, on the proper construction of section 35(3) and in circumstances where it is conceded by the applicant that no submission was made to the respondent about the expiry of the 10 year period, either within the five day period for submissions stated in the section 34 notice or within any extension of that period granted subsequently:<\/p>\n