Beware The Cute Technical Point
By Justin Cotton – Head of Practioner Advocacy at Lovegrove Solicitors
In a salutary lesson to combatants before the VCAT, a recent example shows the Tribunal to be a pragmatic adjudicator, with one eye to the intention of legislation and how best to implement it.
In a late 2011 case before the Domestic Building List, the Insurer for a roof plumber tried to argue that the owner could not claim against the plumber at VCAT for domestic building works, because it was the wrong jurisdiction. This was on the grounds that the claim related to plumbing work and that plumbing work was excluded from the Domestic Building Contracts Act by virtue of it being a single trade. In other words, if the work related to plumbing work only, it was excluded from the Act (the DBCA) because of Clause 6 of the Regulations that says:
“6. Building work to which the Act does not apply – work to be carried out under a contract for one type of work only.”
This argument was opposed by the Applicant owner and the Tribunal agreed with the Owner, in ruling that there was jurisdiction. It was effectively accepted that Clause 6 of the Regs only applies where there is only a single trade performing the whole of the work, for example
with a direct agreement between an owner and a plumber. This was not the case here, as the roof plumber was just one of several subcontractors engaged by the Builder.
The Tribunal found that if the Insurer’s narrow interpretation was to be accepted, it would mean that the Act would not give the Tribunal jurisdiction to hear and determine a dispute between a builder and its subcontractor in relation to any of those single trades referred to in Regulation 6, unless the subcontractors did more than one type of work on site. Member Riegler determined that this could not have been the intention of parliament when the Act was drafted. On matters of interpreting laws, the purpose of an Act needs to be looked at, and the purpose of the DBCA was to “itself provide jurisdiction to the Tribunal to resolve practically all disputes arising out of the construction of a residential dwelling.”
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