Eunomia Developments Pty Ltd v Secretary of the Department of Customer Service [2021] NSWLEC 1279

Land and Environment Court New South Wales

Medium Neutral Citation: Eunomia Developments Pty Ltd v Secretary of the Department of Customer Service [2021] NSWLEC 1279 Hearing dates: 19 May 2021 Date of orders: 19 May 2021 Decision date: 20 May 2021 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The appeal is upheld. (2) The Building Rectification Order dated 26 February 2021 is substituted for the Order set out in Annexure A. (3) Liberty to apply to the Court is granted to either party on giving 3 days' notice. Catchwords: APPEAL – rectification order – conciliation conference – agreement reached – order substituted Legislation Cited: Land and Environment Court Act 1979, ss 34, 39 Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020, ss 33, 49 Cases Cited: Phillips v Walsh (1990) 20 NSWLR 206 Category: Principal judgment Parties: Eunomia Developments Pty Ltd (Applicant) Secretary of the Department of Customer Service (Respondent) Representation: Counsel: A Pickles SC (Applicant) T Liu (Respondent)

Solicitors: Mills Oakley (Applicant) Department of Customer Service (Respondent) File Number(s): 2021/87786 Publication restriction: No

Judgment 1. COMMISSIONER: These proceedings concern an appeal against a building work rectification order issued on 26 February 2021 ("the order") pursuant to the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 ("RAB Act"). The final orders on this appeal, outlined in [10] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 2. The order requires rectification works that primarily address waterproofing issues at a residential apartment building at 2 Mitchell Road, Alexandria. The order was issued by the respondent pursuant to s 33 of the RAB Act, and the appeal by the applicant is lodged pursuant to s 49(1) of the RAB Act. 3. On appeal, the Court has all the functions and discretions of the respondent, whose decision is the subject of the appeal (see s 39 of the Land and Environment Court Act 1979 ("LEC Act")). In addition, s 49 of the RAB Act sets out the powers of the Court on an appeal against a building work rectification order as follows: (3) On hearing an appeal, the Court may— (a) revoke the building work rectification order, or (b) modify the building work rectification order, or (c) substitute for the building work rectification order any other order that the Secretary could have given, or (d) find that the building work rectification order is sufficiently complied with, or (e) make any order with respect to compliance with the building work rectification order as the Court thinks fit, or (f) make any other order with respect to the building work rectification order as the Court thinks fit. 1. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 19 May 2021. I presided over the conciliation conference. 2. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The decision agreed upon involves substituting the order with a modified order that refines the scope of rectification works required for bathrooms within the individual apartments in the building.