Australia, Jan. 11 -- New South Wales Land and Environment Court issued text of the following judgement on Dec. 17:

1. COMMISSIONER: These proceedings concern an appeal pursuant to s 49(1) of the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 (RAB Act) against the Building Works Rectification Order issued to the applicant by the respondent on 8 September 2023 under s 33 of the RAB Act (BWRO), requiring the applicants to carry out rectification works primarily relating to waterproofing, fire safety, structural systems and building enclosure elements at a residential apartment building at 351 Hume Highway Bankstown (constituted in Strata Plan 95613) (Premises).

2. The Court has power to dispose of these proceedings under its Class 2 jurisdiction pursuant to s 18(l) of the Land and Environment Court Act 1979 (LEC Act).

Background

3. On 5 July 2023, the respondent issued the applicant with a notice of intention to issue the BWRO (Notice). Representations in response to the Notice were received from the Owners Corporation on 10 July 2023 and JD Law Group on 26 July 2023.

4. Notwithstanding these representations, the BWRO was issued by the respondent on 8 September 2023 pursuant to s 33 of the RAB Act.

5. On 5 October 2023, the applicant commenced these proceedings, being within the time period specified in s 49(2) of the RAB Act.

6. Following the termination of a conciliation conference arranged by the Court under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) on 16 July 2024, the matter was listed for hearing on 3 and 4 December 2024.

7. Prior to the commencement of the hearing, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties and requested that the matter be listed for a further s 34 conference. The Court granted this request, and the matter was listed for a s 34 conference on 3 December 2024, following which the hearing was vacated. I presided over the conciliation conference.

8. The decision agreed upon involves the substitution of the BWRO with a substituted building works rectification order that primarily provides additional time for works to be carried out and removes the requirement to rectify Defects 4 and 5 (Substituted Order).

9. The parties provided a signed s 34 agreement and supporting jurisdictional statement on 3 December 2024.

Jurisdictional considerations

10. To make orders in accordance with the parties' agreement, I must be satisfied that the decision to make orders substituting the BWRO is a decision that the Court can make in the proper exercise of its functions (being the test applied by s 34(3) of the LEC Act). In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

*Rest of the document and Footnotes can be viewed at: (https://www.caselaw.nsw.gov.au/decision/193cc5469db41d757395c347)

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