The nominee for a now-deregistered construction firm has lost another bid to halt a rectification order for a series of defects at an award-winning, $190-million residential tower in Canberra.
Manhattan on the Park, a 16-storey tower block on Bunda Street, was found to have a series of building defects detailed in a December 2018 report by building consultancy firm Diagnostech.
In March 2021, the Construction Occupations Registrar issued Andrew Jolley, nominee of Chase Building Group, the licence holder of the construction, with a rectification order for work at the tower.
Mr Jolley is now the director of a company that was formerly Chase after the latter was deregistered in October 2017.
Last November, the ACT Civil and Administrative Tribunal ruled that the order was valid after Mr Jolley argued he had only a supervisory role.
He said that under the Construction Occupations (Licensing) Act 2004, such an order against a nominee should be related to only supervision and not the building work itself.
Following that ruling, Mr Jolley made an application to determine whether the registrar had power to issue a rectification order under the 2004 act to a nominee before the start of the Building and Construction Legislation Amendment Act 2019.
He argued that part four - relating to rectification orders - of the 2004 act does not authorise the registrar to issue a rectification order to a nominee before the enactment of the 2019 act, which made changes to the former.
Mr Jolley argued that before the 2019 act, a licensee should not be construed as including a nominee.
Among his other supporting points, he said a licensee and nominee are "separate and distinguishable" concepts.
He said it was ambiguous as to whether a licensee can include a nominee and that the ambiguity should be determined in favour of him because such a rectification order was "akin to a penalty".
Among the registrar's arguments was that the 2004 act did not make a distinction between nominees and licensees.
The registrar cited various sections that provided "overlapping spheres of responsibility" for works that made a nominee criminally, professionally and civilly responsible for defective works.
In a recent judgment, tribunal presidential member Geoff McCarthy dismissed Mr Jolley's arguments, saying most were unpersuasive.
Mr McCarthy said the applicant tried to misconstrue the wording in the legislation related to the nominee-licensee issue.
"Nothing in the words exclude a nominee because the nominee only supervised another licensee who carried out construction work or provided a construction service," he said.
Mr McCarthy found the applicant to be a licensee because he held a Class A builder's licence and he was therefore subjected to the rectification section in the 2004 act.
"I have been on the labyrinth-like journey that the applicant submitted I must go [on], but nothing on the journey persuaded me to read down the meaning of the word 'licensee' to exclude a licensee who is a nominee for another licensee," he said.
"To be a nominee, a person must be a licensee."
Regarding the ambiguity Mr Jolley cited, Mr McCarthy said he was not persuaded one existed and that the rectification was not a penalty.
"The money is not a penalty payable to the registrar, to general avenue or to anyone else," he said.
"It is a payment in return for goods and services provided."
Mr McCarthy said the applicant's argument about the legislation changes had difficulty because the words in the relevant section "have never changed".
Another firm, Peak Consulting, also prepared a series of reports in 2014-16 detailing defects in the building works, including significant ones with balcony waterproofing at various levels.
The building, which is described on its website as winning two awards, in 2011 had approval for excavation work before approval for construction one year later.
The owners corporation for the building units' owners is the party joined to the proceedings.
The case was listed for further directions and included the filing of more evidence.
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