ACT tribunal rules on order against Chase Building Group's nominee to fix Manhattan on the Park defects

Manhattan on the Park, a 16-storey residential tower block containing 330 units on Bunda Street, was found to have a series of building defects detailed in a December 2018 report by Diagnostech, a remedial building consultancy firm.

The defects were alleged by the Construction Occupations Registrar Nick Lhuede to have breached the 2011 version of the Australian Building Code.

That report came after another firm, Peak Consulting, prepared a series of reports detailing alleged defects in the building works, including significant ones with balcony waterproofing at various levels.

The development, which is described on its website as winning two awards, in 2011 had approval for excavation work before approval for construction one year later.

In March this year, Mr Lhuede issued Andrew Jolley, nominee of Chase Building Group, the licence holder of the construction, with a rectification order for work at the tower.

Mr Lhuede initially issued a notice of intention to issue such an order containing allegations of breaches based on the defects in the consultants' reports.

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Mr Jolley in June applied for the ACT Civil and Administrative Tribunal (ACAT) to review the validity of the intention notice and the rectification order.

During an August hearing, Chris Erskine SC for Mr Jolley argued that the notice did not identify - explicitly or implicitly - any failure of his supervision and therefore it was invalid under the relevant section of the Construction Occupations (Licensing) Act 2004.

Mr Erskine said a rectification order against a nominee should be related to only supervision and not the building work itself because sections of the act state that a nominee's role is supervision only rather than carrying out building work.

Another defence was that the notice was invalid because it initially incorrectly referred to the 2013 version of the Australian Building Code before Mr Lhuede changed it to 2011.

Mr Erskine said the correct code cited should have been 2010 because it was the version applicable at the time of the first building commencement notice in April 2011.

In response, Nigel Oram SC for Mr Lhuede said there was another section of the Act that sees a nominee as responsible for the building works and not simply for supervising them.

"The effect is that the nominee is responsible, in the same way as the corporation, for providing the construction services, being both the doing and the supervision of the building work," a recent ACAT judgment states in summarising Mr Oram's arguments.

He said it was not appropriate or necessary to split the construction service into two component parts.

The rectification order must identify the defective building works, not the supervision of those works, Mr Oram said.

In relation to the building code, he said Mr Jolley was left in no doubt what the alleged breaches were and why they are said to be breaches.

Mr Oram provided a comparison of the 2010, 2011 and 2013 codes and said there was no material difference among them.

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In a recent judgment, ACAT senior member Tony Foley ruled that the rectification order was valid with the tribunal saying arguments for Mr Lhuede were persuasive.

"The notice of intention did not need to particularise supervision failures," Mr Foley said.

He said the tribunal found the nominee's responsibility under the act goes beyond supervision to ensuring the construction services comply with legislations.

"The tribunal finds the notice of intention did not need to cite the Building Code of Australia," Mr Foley said.

"If it cited an incorrect version, that does not render the notice invalid."

The owners corporation for the building units' owners is the party joined to the proceedings.

The ACAT judgment states that Chase Building Group entered liquidation in 2017.

Mr Jolley has been contacted for comment.

Diagnostech's managing director Dennis Stephenson said their report could not be provided due to the legal proceedings.

The next stage in the case is the filing of evidence.

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