Chen & Anor v Kevin McNamara & Son Pty Ltd & Anor

[2012] VSCA 63

Victorian Court of Appeal

Built by Barristers,
For Australian Law.

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Interrogate

Catchwords

1. Arbitration
2. › Building contracts
3. › Legislative prohibition on reference of disputes to arbitration
4. › Whether works carried out under domestic building contract
5. › Whether arbitration clause void
6. › Domestic Building Contracts Act 1995 (Vic), ss 3, 4, 5(1), 14, 54
1. Building and Construction Law
2. › Building permits
3. › Exemptions from requirement for building permit
4. › Classification of buildings and structures under Building Code of Australia
5. › Whether structure a 'class 10b structure'
6. › Whether 'retaining wall, swimming pool or the like'
7. › Approach to classification — structure as a whole not component parts
8. › Building Act 1993 (Vic), ss 3, 16
9. › Building Regulations 2006 (Vic), reg 1801
10. › Building Code of Australia, cll 1.3.1, 1.3.2, 1.3.3
1. Statutes
2. › Interpretation
3. › Approach to construction of inter-related statutes
4. › Text as surest guide to legislative intention
5. › Whether court may depart from discernible intent on policy grounds
6. › Role of purpose and context in statutory construction

Quick Take

When classifying a structure under clause 1.3.2 of the Building Code of Australia, the classification must be determined by reference to the structure as a whole and the purpose for which it was designed and constructed, not by reference to its individual component parts. A large underground rainwater storage tank is not a 'retaining wall, swimming pool, or the like' within class 10b, even though it incorporates retaining walls as structural components and holds water.