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How does statutory interpretation impact building disputes in NSW? Written laws like the Home Building Act, building codes, and industry standards often leave room for multiple interpretations. This article explains how courts apply statutory interpretation rules, such as the extrinsic materials rule under section 34 of the NSW Interpretation Act 1987 and highlights a recent case where interpretation determined the outcome of a defective building work claim.
A recent case conducted by Swaab illustrated how statutory interpretation can apply in building disputes.
Written laws include Acts of Parliament, industry codes of conduct, building standards and codes and regulations. When people draft these laws, they do their best to make them clear but often the drafting results in several alternative meanings. Lawyers are required to interpret these laws and there may be several possible meanings
To assist in the interpretation of a written law, rules may apply including the extrinsic materials rule. This rule is set out in section 34 of the NSW Interpretation Act 1987. Section 34 provides that some documents can be used in statutory interpretation. These are documents such as the second reading speech in parliament for a bill. In the second reading speech the minister responsible for the proposed act of parliament often gives a description of what the new act sets out to do and achieve. This speech can be used in working out what parts of that statute say.
Other documents include reports of Royal Commissions, Law Reform Commissions, committees of enquiry or similar bodies laid before either house before the provision was enacted and also reports of committees of the parliament before a provision was enacted.
These documents can however only be referred to if the relevant provision is ambiguous or obscure or if the ordinary meaning leads to a result that is absurd or unreasonable.
A recent case conducted by Swaab illustrates the extrinsic evidence rule. In this case, our clients made a claim against a builder for defective building work. Our clients said that the relevant Australian Standard set out what the builder ought to do in his work to build a retaining wall. However, the builder disagreed with our client's interpretation of that standard and said that the standard actually meant something different. The builder said he had complied with the standard and carried out the work in accordance with his interpretation.
In order to prove that his interpretation of the standard was correct, the builder relied on an internet article that seemed to have been issued by the body that made the relevant standard. The article said there had been a committee meeting for the standard body and that meeting had decided that one ought to interpret the standard in the way the builder urged the court.
The question for the tribunal was whether the copy of the internet article could be used to interpret the Australian Standard.
The tribunal said that it would not allow the internet article
to be used. It was 'extrinsic material' but it was not
something that could be said to have held the views of the body
that made the standard. It was only the views of a committee
of that body and not the views of the board.
As a result the views in the article were irrelevant and the
article could not be used to interpret the standard.
As a result, the tribunal found it could not use the article and found for the home owners and in that, it agreed with their interpretation of the standard. The tribunal then went on to find that builder had carried out defective building work and the home owners were entitled to win their claim.
So, in this case, the rules of statutory interpretation decided the outcome of a building case.
For further information please contact:
Nicholas Hufton, Special Counsel
Phone: + 61 2 9777 8308
Email: nih@swaab.com.au
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
