On 1 August 2003, Professor
Cremean in the Victorian Civil and Administrative Tribunal,
handed down his decision in the case of Mt. Holden Estates
v Lanigan Baldwin Pty Ltd & Winslow Constructors Pty
Ltd VCAT D689/2002. The exclusive jurisdiction of VCAT
with respect to domestic building disputes has been significantly
extended by this decision. The case involved a dispute between
a developer, a supplier of infrastructure works and a design
engineer.
The developer argued
that VCAT had jurisdiction to hear a dispute between the
developer and the contractor that carried out infrastructure
works and the engineer who designed a subdivision because
the dispute related to domestic building works. The works
carried out were design and civil contracting works required
to subdivide land into residential allotments including:
grading, filling of dams, road laying, cross overs, sewerage,
drainage, water reticulation and the like.
The Tribunal found that:
1) the works fall within s5 of the Domestic Building Contracts Act 1995
and as such are building work to which the Domestic Building
Contracts Act applies;
2) the engineer and the contractor were builders within the definition
of “builder” under the Act;
3) the works were “domestic building work” as defined
by the Act;
4) the dispute between the parties was a “domestic building
dispute” within the meaning of the Act; and
5) the developer of the estate was a “building owner” as
defined by the Act.
On that basis, VCAT had exclusive jurisdiction to deal with this
dispute as a domestic building dispute.
This decision arguably
means that all contracts for “infrastructure works” for
residential subdivisions are domestic building contracts
that will need to comply with the requirements of the Act,
including the warranty and insurance provisions in the Act.
The contractors carrying out the design and infrastructure
works, being “builders”, may also require registration
as "domestic builders".
The decision is on appeal.
We are indebted to Mr
John Bolton of counsel for bringing this case to our attention.
(Mr Bolton acted as counsel for one of the parties).
Written by Peter
Macnish
