Rectification Orders: The Registrar’s Powers

By Farah Tam

In our previous newsletter entitled “Three Cautionary Cases: B & T, Jolley and Koundouris”, we examined how regulatory and civil exposure can affect construction practitioner with respect to rectification orders (‘RO’).

This newsletter builds on that discussion by examining the power of the Construction Occupations Registrar (‘Registrar’) to make rectification orders.

Who issues rectification orders?

The Construction Occupations (Licensing) Act 2004 (‘COLA’ or ‘the Act’) grants powers to the Registrar to issue ROs as per Part 4 and s 103. This includes sections 34, 35 and 38.

Prior to issuing a RO, the Registrar must issue a Notice of Intention (‘NoI’), if the Registrar believes on reasonable grounds that the licensee or former licensee (the entity) has provided a construction service inconsistent with the Act or where it is appropriate to make a RO.

The Registrar may issue a RO provided it is satisfied that:

  1. the entity has contravened the COLA or an operational Act; and
  2. it is appropriate to make RO.

The Registrar may require the entity to rectify defective works, however, it must not state how a rectification work is to be undertaken.

What is the purpose of rectification orders?

The purpose of ROs is to provide protection for the public and the consumers, while ensuring the integrity of the regulatory regime and public records.

Can Rectification Orders be Challenged?

In the previous newsletter, the authorities suggested that RO can be challenged if the issues relate to jurisdictional defects, procedural unfairness, lack of sufficient evidentiary foundation, limitation issues or significant uncertainty or ambiguity about the specific terms.

Collectively, the authorities suggest that reasonable satisfaction under section 35 is based on the assessment of the relevant legislation and the material available to the Registrar, rather than a conclusive court determination.

Can RO be wholly set aside or varied?

The assessment as to whether the ROs can be wholly set aside or varied is subject to the assessment of the Tribunal. For instance, if the Registrar did not include significant details or parts of the ROs are ambiguous, it may be varied.

Can the Registrar issue a fresh NoI?

The Registrar may only make RO if:

  1. the Registrar first became aware of the act that caused the contravention within 6 months before the end of the 10-year- period – 1 year after the entity was given the notice; or
  2. if the registrar gave the entity a notice under section 34 before the end of the 10-year period – 1 year after the entity was given the notice; or
  3. in any other case – the day the 10-year period ends.

The 10-year period is defined as starting on the later of:

  1. the day the act caused the contravention happened or ended; and
  2. the day any relevant certificate was issued under the Building Act including a certificate of occupancy.

The relevant sections above show that the Registrar is subject to a time limit. It is unlikely that the Registrar may issue a fresh NoI if:

  1. The Registrar was not aware of the contravention or defects; and
  2. if the defects were not initially a part of the existing NoI.

How we can help

Our team at Crisp Law has extensive experience in construction disputes, including statutory liabilities like the one discussed. If you are unsure how you can protect yourself, we recommend reaching out to our experts.

Telephone: +61 2 8042 8701

Email: admin@crisplaw.com.au

 

References

Construction Occupations (Licensing) Act 2004 (ACT) ss 34, 35, 38

Photo by Josh Olalde on Unsplash

 

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