Black v Toowoomba Resort Pty Ltd
[2005] QSC 19
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- Unreported Judgment
- Black v Toowoomba Resort Pty Ltd[2005] QSC 19
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Black v Toowoomba Resort Pty Ltd[2005] QSC 19
Reported at [2005] 1 Qd R 577
Black v Toowoomba Resort Pty Ltd[2005] QSC 19
Reported at [2005] 1 Qd R 577
SUPREME COURT OF QUEENSLAND
PARTIES: | GREGORY JOHN BLACK T/AS GREG BLACK CONSTRUCTIONS v |
FILE NO/S: | |
Trial | |
PROCEEDING: | Hearing |
ORIGINATING COURT: | |
DELIVERED ON: | 22 February 2005 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 15 December 2004 |
JUDGE: | McMurdo J |
ORDER: |
|
CATCHWORDS: | PROCEDURE – COURTS – CONCURRENT JURISDICTION OF DIFFERENT COURTS – CASES OTHER THAN UNDER CROSS-VESTING LEGISLATION – building dispute over student accommodation – where proceedings currently before Commercial and Consumer Tribunal – whether Supreme Court has jurisdiction over dispute MISCELLANEOUS PROCEDURAL MATTERS – DECLARATIONS – JURISDICTION –– building dispute over student accommodation – whether dispute involves domestic building work – whether temporary accommodation a dwelling PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS – DECLARATIONS – JURISDICTION – building dispute over student accommodation – whether dispute involves domestic building work – whether student accommodation intended to be used only for business purposes PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS – DECLARATIONS – JURISDICTION – building dispute over student accommodation – triplex building – where lack of particulars of claim – whether dispute a minor commercial building dispute Commercial and Consumer Tribunal Act 2003 (Qld) ss 40, 157, 158(1), 168, schedule 2 C & E Pty Ltd v CMC Brisbane Qld [2004] 2 Qd R 244 |
COUNSEL: | R Kelly for the applicant |
SOLICITORS: | Kym Fleur Legal Solutions for the applicant |
[1] McMURDO J: The applicant is a builder who has undertaken building work for the respondent upon the respondent’s land adjacent to the University of Southern Queensland in Toowoomba. The applicant claims to be owed various amounts totalling about $172,000.00. The respondent says that the applicant was in breach of contract in a number of respects for which the applicant should pay to it a total of $316,377.00.
[2] The applicant brought proceedings in what was then the Queensland Building Tribunal. Those proceedings are now in the Commercial and Consumer Tribunal (“the Tribunal”). Section 168 of the Commercial and Consumer Tribunal Act 2003 (Qld) (“the CCT Act”) repealed the Queensland Building Tribunal Act 2000 (Qld) and by s 157, the Queensland Building Tribunal was abolished. By s 158(1) a proceeding such as this, which was started in the Queensland Building Tribunal, but not finished before the relevant date which is 1 July 2003, must continue under the CCT Act. The relevant provisions of the Queensland Building Tribunal Act in relation to the former Tribunal’s jurisdiction were identical to those which define the jurisdiction of the present Tribunal, which are contained now in the Queensland Building Services Authority Act 1991 (Qld).
[3] A subcontractor has been joined as a party to those proceedings and there have been extensive pleadings exchanged. Although it was the applicant who commenced the proceedings currently before the Tribunal, the applicant now says that the Tribunal has no jurisdiction to determine any, or at least some of the claims the subject of that proceeding.
[4] By this Originating Application, the applicant seeks declaratory relief to the end of establishing its right to have all or some of the issues determined by a court rather than by the Tribunal. To a large extent, that requires a consideration of whether any, and if so, how much of the relevant building work was “domestic building work” as defined in s 8 of the Domestic Building Contracts Act 2000 (Qld). It seeks declaratory relief as to what constitutes the contract or contracts between the parties and whether they entered into a regulated contract under s 9 of that Act. It seeks further declaratory relief to the effect that Part 4A of the Queensland Building Services Authority Act, which is headed “Building contracts other than domestic building contracts”, applies to this dispute.
[5] The respondent says that in all respects the Tribunal has jurisdiction to determine what is in issue between the parties. The sub-contractor who has been joined as a party in the Tribunal is not a party to this application, having advised that it has no wish to be heard on the present issues.
[6] If, as the respondent argues, the Tribunal has in all respects jurisdiction, then that jurisdiction is effectively exclusive, because s 40(1) of the CCT Act provides that if a proceeding is started in a court and if the proceeding could be heard by the Tribunal, the court must order the entity who started the proceeding, to start the proceeding again before the Tribunal. Section 40(2) provides that if the Tribunal considers it does not have jurisdiction to hear all matters in the proceeding before it, it may order the entity that started the proceeding to start the proceeding again before a court. As yet the Tribunal has not shown any intention to make an order under s 40(2) and the applicant apprehends that if it commences a proceeding in a court, which replicates that which is before the Tribunal, the respondent will argue that the court should summarily dispose of it under s 40(1). Accordingly, the applicant argues that there is utility in the declarations it seeks as to the Tribunal’s jurisdiction.
The Building Work
[7] The respondent has been developing on its site of approximately 1.7 hectares what it calls the “Toowoomba Resort”. The development has three stages of which most of the presently relevant work is within stage two. Another builder constructed stage one. The development consists of a number of single storey buildings separated by driveways and landscaped areas. Each of the buildings consists of two or three semi-detached units. Each unit is self-contained and comprises various numbers of bedrooms, bathrooms, living and dining areas, together with laundry facilities and a garage. According to the plans and drawings of the buildings and the development as a whole, the units would seem to be well suited for use as a permanent residence by an owner occupier. The respondent’s intention has been and is to rent them to students, the respondent’s principal adding that it is the “respondent’s eventual intention to subdivide and sell the units”.
[8] The parties contracted for the applicant to construct the eleven units within stage two. That involved the construction of five buildings, being four duplexes and a triplex. In about September 2002, the applicant provided a quotation to construct those eleven units for a certain price. The respondent then asked the respondent to break up its quote into one for seven of the units with a separate quote for the four other units, which the applicant did. Subsequently, the respondent asked the applicant to further break up its quotations so that there were three: one covering four units within two duplexes, another covering a further two duplexes and the third covering the triplex. The respondent told the applicant that it needed to enter into three contracts rather than one for the entirety of stage two, because this was required by its financier. Consequently, the parties signed three contract documents in terms which record three distinct contracts, and for prices which total the applicant’s original quote for the eleven units.
[9] In March 2003, the parties made a further contract for the applicant to do certain concreting work which is also the subject of the case before the Tribunal.
The Claims and Counter-claims
[10] The applicant maintains that upon a proper analysis, there is but one contract for the construction of the eleven units within stage two and that the separate forms of contract were not intended to have effect as separate contracts. Nevertheless, in the course of the works the applicant submitted distinct invoices corresponding with the distinct forms of contract, and the applicant’s pleading in the Tribunal to some extent distinguishes between the amounts claimed under the various contract documents. Before giving credit for certain amounts, the applicant claims a total of $248,796.71 made up of the following:
| | Invoices relating to a contract for the two duplexes containing units 7, 8, 32 and 33 (“Contract 1”) | $ 83,759.08 |
| | Invoices for the contract for the two duplexes containing units 37, 38, 39 and 40 (“Contract 2”) $ | $ 101,381.30 |
| | Invoice on the concreting contract | $ 2,708.84 |
| | Variations not specifically attributed to certain contracts | $ 58,137.50 |
| | Additional payment made to an engineer | $ 473.00 |
| | Cost of repairs to another unit not constructed by the applicant | $ 2,335.98 |
| TOTAL: | $ 248,796.71 | |
There is no claim specifically attributed to the contract for the triplex (“Contract 3”), although it is possible that some of the (un-attributed) variations totalling $58,137.50 relate to that building. The distinction between the work of the construction of the triplex and the construction of the other units is relevant to the Tribunal’s jurisdiction, as I will discuss.
[11] Against those sums, the applicant’s pleading allows a credit of $54,600.00 for work within Contracts 1 and 2 (the contracts for the duplexes). Other amounts totalling $21,432.20 have been allowed in relation to items which seem to be referrable to all eleven units.
[12] Within its counter-claim, the respondent claims first a total of $32,650.00 for liquidated damages for delay, of which there is a distinct component for Contract 3 of $9,800.00. The respondent also claims that, on a proper accounting under Contracts 1, 2 and 3, the respondent is owed a very small sum ($28.82), and upon the concreting contract the respondent should be repaid $31,445.15. The third and largest component of its counter-claim is for the rectification of defects, for which it claims a total of $284,903.64.
[13] For some defects, the respondent’s pleading distinguishes between Contracts 1, 2 and 3, and there are claims for rectification costs, which total $4,077.29, which are described as referrable to contract 3. However, most of the amounts claimed are described under the heading “general rectifications”, without an allocation of amounts to particular contracts, and of these the largest is an amount of $228,987.93 which is the estimated cost of rectifying alleged defects in brick ties. The counter-claim alleges that each of the buildings is defective in that respect. It asserts that “insufficient brick ties have been affixed to secure the external brick skin to the timber framework...this is consistently incorrect in every location tested” and instances testing within three of the units, including two units within the triplex. It does not appear what amount is or would be claimed for the rectification of the brick ties within the triplex. There must be a reasonable prospect that of the total of $228,987.93, in excess of $50,000.00 is referrable to the triplex, containing as it does three of the eleven units.
The Tribunal’s Jurisdiction
[14] As I have mentioned, the proceeding was commenced prior to the commencement of the operation of the CCT Act so that by s 158(1) of that Act the proceeding “must continue under this Act”. As the matter was argued, the Tribunal’s jurisdiction is to be determined under the current legislation rather than by reference to that which was relevant when the proceeding was commenced. As I have said, in relevant respects there is no difference between the respective statutes and it will be sufficient to refer to the current legislation.
[15] Section 8 of the CCT Act provides that the Tribunal has jurisdiction to deal with the matters it is empowered to deal with under that Act or “an empowering Act”. The Queensland Building Services Authority Act is an “empowering Act”, as is the Domestic Building Contracts Act.[1]
[16] Part 7 of the Queensland Building Services Authority Act 1991 (Qld) empowers the Tribunal to determine a “building dispute”, which that Act defines[2] as follows:
“(a)a domestic building dispute; or
- a minor commercial building dispute; or
- a major commercial building dispute if the parties to the dispute consent to the dispute being heard by the Tribunal under section 79”.
[17] Each of those terms within the definition of “building dispute” is itself defined.[3] Broadly speaking, a domestic building dispute is a claim or dispute relating to “reviewable domestic work”. A commercial building dispute is a claim or dispute, relating to “reviewable commercial work”. A commercial building dispute is a major commercial building dispute if “the claim or the counter-claim exceeds $50,000.00”; otherwise it is a minor commercial building dispute.
[18] The Act defines the term “reviewable domestic work” as follows:
“…domestic building work under the Domestic Building Contracts Act 2000, except that for applying section 8(8) of that Act the definition “excluded building work” in that Act is taken not to mean anything mentioned in paragraphs (b), (c) or (d) of the definition.”
The term “reviewable commercial work” is defined to mean:
“… Tribunal work other than reviewable domestic work”.
[19] It is necessary then to go to the Domestic Building Contracts Act for its definition of “domestic building work”. That Act defines “domestic building work” by section 8 in these terms:
“Meaning of “domestic building work”
8.(1)Each of the following is “domestic building work”—
(a)the erection or construction of a detached dwelling;
(b)the renovation, alteration, extension, improvement or repair of a home;
(c)removal or resiting work for a detached dwelling.
(2)However—
(a)removal work for a detached dwelling is “domestic building work” only if the dwelling is intended to be resited at another place and used, at the place, as residential premises; and
(b)resiting work for a detached dwelling is “domestic building work” only if the dwelling is intended to be used at the place at which it is being resited as residential premises.
(3)“Domestic building work” includes—
(a)work (“associated work”) associated with the erection, construction, removal or resiting of a detached dwelling; and
(b)work (“associated work”) associated with the renovation, alteration, extension, improvement or repair of a home.
(4)Without limiting subsection (3), associated work includes—
(a)landscaping; and
(b)paving; and
(c)the erection or construction of a building or fixture associated with the detached dwelling or home.
Examples of buildings and fixtures for subsection (4)(c)—
Retaining structures, driveways, fencing, garages, carports, workshops, swimming pools and spas.
(5)For the erection or construction of a detached dwelling, “domestic building work” includes the provision of services or facilities to the dwelling or the property on which the dwelling is, or is to be, situated.
(6)For the renovation, alteration, extension, improvement or repair of a home, “domestic building work” includes the provision of services or facilities to the home or the property on which the home is situated.
Examples of services and facilities for subsections (5) and (6)—
Lighting, heating, ventilation, air conditioning, water supply, sewerage and drainage.
(7)Also, “domestic building work” includes—
(a)site work relating to work mentioned in subsection (1), (3), (5) or (6); and
(b)work declared under a regulation to be domestic building work if there are reasonable grounds for considering the work to be domestic building work.
(8)However, “domestic building work” does not include excluded building work.
(9)In this section—
(a)a reference to a detached dwelling includes a reference to any part of a detached dwelling; and
(b)a reference to a home includes a reference to any part of a home; and
(c)a reference to site work includes a reference to work required to be carried out to gain access, or to remove impediments to access, to a site.
(10)In this section—
“removal work”, for a detached dwelling, means work relating to the dwelling carried out at the place at which the dwelling is located for relocating the dwelling to another place.
“resiting work”, for a detached dwelling, means work relating to the dwelling carried out at a place for resiting the dwelling at the place following its removal from another place.”
[20] A “detached dwelling” is defined[4] to be:
“(a) a single detached dwelling; or
(b) a duplex.”
In C & E Pty Ltd v CMC Brisbane Qld [2004] 2 Qd R 244, it was held that this reference to a detached dwelling or a duplex should be read as referring also to detached dwellings or duplexes, so that a contract for the construction of ten separate houses involved domestic building work.[5]
[21] Section 8(8) provides that domestic building work does not include “excluded building work” which is a term defined in schedule 2. The relevant part of that definition provides that excluded building work is involved in “a building intended to be used only for business purposes”.[6]
[22] For the Tribunal to have jurisdiction in relation to all matters in dispute between these parties, each question for its adjudication must involve either a domestic building dispute or a minor commercial building dispute, because it is common ground that the parties to the proceedings before the Tribunal have not consented as would be required for the Tribunal to have jurisdiction in relation to a major commercial building dispute. There is no consent in any form from the sub-contractor, and it is conceded that neither the applicant nor the respondent has consented in the terms required by the Queensland Building Services Authority Act, which provides by s 79(2) that there must be a written consent which includes an acknowledgment that the consent cannot be withdrawn.
The Arguments as to Jurisdiction
[23] The applicant submits that none of its work was domestic building work, so that in no respect is there a domestic building dispute. If that is correct, then all of the dispute or disputes would involve a commercial building dispute, which is a major commercial building dispute and outside the Tribunal’s jurisdiction. The applicant argues that there are two reasons why none of the work was domestic building work. The first is that none of the units is a “detached dwelling”, because none is a dwelling. Secondly, it argues that all of the work is excluded building work because it is work relating to a building intended to be used only for business purposes.
[24] It submits that a dwelling is a place where someone dwells, or “abides as a permanent resident”, citing the Macquarie Dictionary (3rd edition) at 666. The submission is that a dwelling must have an element of permanence, which is lacking here because the respondent had these units built with the intention that they be used for student accommodation, which the applicant argues is “temporary accommodation”. However, the term “dwelling” is undefined, and according to at least one ordinary meaning it is “a place of residence”.[7] In my view, a student who lives in one of these units during the university term would be using it as a dwelling. The applicant’s submission would impose some required element of permanency which is not expressed by the statute. Moreover, the submission seems in tension with the terms of s 13 of the Domestic Building Contracts Act which provides:
“Meaning of “home”
13.(1)A “home” is any residential premises.
(2) A “home” includes a part of commercial or industrial premises used as residential premises.
(3) However, a “home” does not include the following –
(a)premises not intended to be used for permanent habitation;
(b)a guesthouse, hostel or similar residential premises;
(c)a motel, residential club, residential hotel, residential part of licensed premises or serviced apartments;
(d)a hospital, nursing home, aged care home or hostel or retirement village;
(e)residential premises associated with a hospital or educational institution;
(f)residential premises specifically set aside as a place at which specialised care services are supplied to children or disabled persons residing at the place;
(g)a prison or similar establishment;
(h)a caravan;
(i)residential premises declared under a regulation not to be a home if there are reasonable grounds for considering the premises not to be a home.
…
(5) Subsection (3)(e) applies to residential premises associated with an educational institution only if the premises –
(a)are used, or intended to be used, only or mainly by students of the institution; and
(b)are not a detached dwelling.”
In particular, the terms of s 13(5) indicate that residential premises associated with an educational institution and used only or mainly by its students could be a “detached dwelling”.
[25] The further difficulty with this submission is that it focuses upon the subjective intent of the person for whom the building work is performed, rather than upon the character of the building itself. The distinction is demonstrated by the judgments in Parker v Queensland Building Services Authority [2001] Qd R 644 albeit in relation to different provisions. As I have said, the relevant plans and drawings for this building work clearly provide for the construction of units each of which has rooms and facilities which would make it suitable for residential use and indeed for “permanent” occupation by an owner. In my view, the work involves or does not involve the construction of a dwelling according to the character of what is being constructed, as that character objectively appears from the material which defines what is to be constructed such as the contract documents, plans and drawings. The building containing the triplex is not within the definition of “detached dwelling” although it does contain three dwellings. But looking at what appears in the plans and drawings, the four buildings containing the other eight units are plainly detached dwellings.
[26] The applicant’s further submission, that all of these buildings are excluded building work because they were intended to be used only for business purposes, should also be rejected. It seems clear that the respondent’s intention in having this work performed was to make money from letting the constructed units and perhaps also from their ultimate subdivision and sale. But in my view, the intended use of the building in this context is its use according to the nature and purpose of its occupation as a building. The applicant’s submission focuses upon the intended exploitation of the building as property, rather than upon its use as a building through its occupation. If the applicant’s submission was accepted, it would exclude much of the beneficial operation of the statutory scheme of which the Domestic Building Contracts Act is a part. In the case where a person, who has constructed a house only with the intention of renting it, later sells it to an owner occupier, the purchaser would not have the benefit of the warranties implied by Part 4 of the Domestic Building Contracts Act. And if the focus was on the subjective intent of some person, there would be the further difficulty that the operation of much of the statutory scheme might depend upon the existence of an undisclosed intention. By the plan and drawings for the duplexes, it is apparent that the intended use of those units was in their occupation as residences or dwellings.
[27] It follows, that the applicant’s submissions to the effect that none of this is domestic building work, must be rejected. In my view, all of the work involved in this construction of stage 2 was domestic building work, save for that involved in the construction of the triplex building. Because the triplex is not a detached dwelling as defined, its construction was not domestic building work, and at least to the extent that there is a claim or dispute relating to the performance of the triplex, it is a commercial building dispute.
[28] The respondent accepts that a dispute relating to the triplex is a commercial building dispute but submits that the Tribunal has jurisdiction because the amount involved in any claim or counter-claim does not exceed $50,000.00. As I have mentioned, upon the applicant’s claim, there is no part specifically attributed to the triplex. The matters making up the component of $58,137.90, are to some extent demonstrated by the relevant invoice,[8] from which it appears that some of that claim, with further particularisation, could be attributed specifically to the triplex. With further particulars, it is likely also that some of what is claimed in this invoice could be attributed solely to the domestic work of the construction of one or more of the duplexes. And much of this $58,137.00 relates to the work involved in the construction of stage two as a whole: for example, the engineer’s fees of $10,680.00. It is possible that there is at least enough of the total claim of $58,137.90 which relates only to domestic building work so that what remains as a claim relating to commercial work could not exceed $50,000.00. If so, then the applicant’s claim would still be within the Tribunal’s jurisdiction. Of course, this involves some speculation as to what a further particularisation of this component of the claim would reveal. But in the present context, it is for the applicant to prove the facts from which it argues that the Tribunal has no jurisdiction, and the applicant has failed to demonstrate that there is within its claim as a whole anything which is a major commercial building dispute.
[29] As I have mentioned, the respondent’s counter-claim includes a claim for insufficient brick ties, which is a claim apparently referrable to all eleven units and for which the likely alleged cost of rectifying the triplex would exceed $50,000.00. There is also within the counter-claim a specific claim in relation to the triplex contract of $4,077.29. This is an Originating Application, in which the applicant seeks to demonstrate that the Tribunal lacks jurisdiction on the basis of uncontroverted facts and on the present evidence, I am not prepared to find that, with further particularisation, the counter-claim relating to the triplex would be shown to exceed $50,000.00 and to declare that the Tribunal lacks jurisdiction in that respect.
[30] The result is that within this proceeding, the applicant has failed to demonstrate that the Tribunal lacks jurisdiction in any respect. Upon the present evidence, and without a factual inquiry unsuited to the summary determination of an Originating Application, I cannot conclude that the Tribunal either has jurisdiction in all respects or instead lacks jurisdiction in relation to part of the applicant’s claim or part of the respondent’s counter-claim.
[31] I return to s 40 of the CCT Act, which provides as follows:
“40Transfer of proceedings between tribunal and the courts
(1)If a proceeding is started in a court and the proceeding could be heard by the tribunal under this Act, the court must order the entity that started the proceeding to start the proceeding again before the tribunal under section 31.[9]
(2)If the tribunal considers it does not have jurisdiction to hear all matters in a proceeding before the tribunal, the tribunal may order the entity that started the proceeding to start the proceeding again before the court.
(3)The tribunal may make an order under subsection (2) even though the proceeding has previously been transferred from a court to the tribunal under subsection (1).
(4)However, if the tribunal makes an order under subsection (2), a court must not make an order under subsection (1) relating to the proceeding.
(5)For the time limit fixed for the start of a proceeding, the time between when the proceeding is started and when an order is made under subsection (1) or (2) does not count.”
[32] Consistently with these reasons, I would expect the Tribunal to require the respondent to provide further particulars of its counter-claim in order to confirm its jurisdiction. In the event that it is revealed that part of the counter-claim, in an amount exceeding $50,000.00, is wholly attributable to the triplex, then pursuant to s 40(2), the Tribunal may order the applicant to start again before a court, as the applicant wishes to do. It should be unnecessary for the Tribunal to make that order once its lack of jurisdiction sufficiently appears: it could simply stay the whole of the proceedings upon the applicant’s undertaking to sue in a court. Should the applicant decide to issue court proceedings, without any order or stay by the Tribunal, then s 40(1) would apply only if that court considered that the whole proceeding could be heard by the Tribunal.
Remaining Issues
[33] There was a substantial debate as to whether the parties made but one contract for the entirety of stage two or, as the documents evidence, three distinct contracts. For the applicant to demonstrate that inconsistently with the forms of contract signed by the parties there was but one contract for the whole of stage two, there would have to be a hearing in which the facts are more fully explored than was appropriate for, or attempted in, this summary hearing.
[34] The applicant seeks a declaration that the parties have not provided a consent in the terms required by s 79(2) of the Queensland Building Services Authority Act for the Tribunal to hear the whole of the dispute. But as I have said, the respondent does not argue otherwise and there is no need for a declaration in those terms.
[35] The applicant also seeks a declaration to the effect that what it says was the one contract for the construction of stage two was not a “regulated contract” as defined in s 9 of the Domestic Building Contracts Act. Had I accepted the applicant’s argument that none of the work was domestic building work then it would follow that, whether there was one contract or three contracts for these eleven units, there was no regulated contract within s 9. But because the applicant has failed on that argument, its case on this issue is one for which an essential premise is that there was but one contract, from which it argues that this “mixed purpose contract”[10] is not a mixed purpose contract of the kind within s 9(3). As that premise is not presently established, this claim for declaratory relief must also be refused.
[36] The other issue raised by this application is whether the “the contract” is a “building contract” within Part 4A of the Queensland Building Services Authority Act. Again, because the applicant seeks declaratory relief upon the premise that there was but one contract, this claim must also be refused.
Conclusion
[37] Each of the declarations as sought[11] must be refused. The Originating Application will be dismissed. I shall hear the parties as to costs.
Footnotes
[1] Definition of “empowering Act” in schedule 2 to the CCT Act.
[2] In schedule 2.
[3] Schedule 2 of the same Act.
[4]Schedule 2 to the Domestic Building Contracts Act.
[5] By the application of s 32C Acts Interpretation Act 1954 (Qld).
[6] Paragraph (a)(ii) of the definition in schedule 2.
[7] Oxford English Dictionary (2nd edition).
[8] Numbered 0195.
[9] Section 31 (How to start proceedings).
[10] As that term is used in s 9 and defined in schedule 2 of the Act.
[11] Ultimately as per a draft order handed up in argument.