Phoenix Palm Development Pty Ltd v The Secretary of the Department of Customer Service [2024] NSWLEC 1812

Phoenix Palm Development Pty Ltd v The Secretary of the Department of Customer Service [2024] NSWLEC 1812

The substitution of the Building Work Rectification Order is appropriate as the defects identified constitute serious defects under the RAB Act, the applicant is properly subject to the order, Defects 4 and 5 have been rectified and may be omitted, and the agreement between the parties is within the Court's power; thus, the appeal is upheld and the original order is substituted.

Parties
Applicant: Phoenix Palm Development Pty Ltd; Respondent: Department of Customer Service
Jurisdiction
Australia
Judgment Date
17 December 2024
Procedural Posture
Appeal Under Residential Apartment Buildings (compliance and Enforcement Powers) Act 2020 S 49 / Final Orders Following Conciliation Conference
Outcome
Appeal upheld; Building Work Rectification Order substituted; liberty to apply granted
Legal Topics
Building Work Rectification Orders, Appeals, Conciliation Conferences, Compliance and Enforcement
Building and Construction Law Administrative Law Building Work Rectification Orders Appeals Conciliation Conferences Compliance and Enforcement

Case Brief

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Parties

Phoenix Palm Development Pty Ltd

Applicant

Department of Customer Service

Respondent

Procedural Posture

Appeal Under Residential Apartment Buildings (compliance and Enforcement Powers) Act 2020 S 49 / Final Orders Following Conciliation Conference

Legal Issues

  1. 1 Whether the Court should substitute the Building Work Rectification Order with the terms proposed by the parties
  2. 2 Whether defects identified in the original rectification order are serious defects under the relevant legislation
  3. 3 Whether defects 4 and 5 should be deleted from the substituted order

Ratio Decidendi

The substitution of the Building Work Rectification Order is appropriate as the defects identified constitute serious defects under the RAB Act, the applicant is properly subject to the order, Defects 4 and 5 have been rectified and may be omitted, and the agreement between the parties is within the Court's power; thus, the appeal is upheld and the original order is substituted.

Court Disposition

Appeal upheld; Building Work Rectification Order substituted; liberty to apply granted

Orders

  • The appeal is upheld.
  • The Building Work Rectification Order dated 8 September 2023 is substituted for the Order set out at Annexure A.