ACCENT ON HOMES PTY LTD and GHIANN PTY LTD
[2005] WASAT 321
•12 DECEMBER 2005
ACCENT ON HOMES PTY LTD and GHIANN PTY LTD [2005] WASAT 321
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2005] WASAT 321 | |
| BUILDERS' REGISTRATION ACT 1939 (WA) | |||
| Case No: | VR:235/2005 | 27 SEPTEMBER 2005 | |
| Coram: | MR C RAYMOND (SENIOR MEMBER) | 12/12/05 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application granted | ||
| B | |||
| PDF Version |
| Parties: | ACCENT ON HOMES PTY LTD GHIANN PTY LTD |
Catchwords: | Builders' Registration Act 1939 Application for leave to review decision of Building Disputes Tribunal |
Legislation: | Builders' Registration Act 1939 (WA), s 12A, s 41 Home Building Contracts Act 1991 (WA), s 17 State Administrative Tribunal Act 2004 (WA), s 27 |
Case References: | Tangent Nominees Pty Ltd and Edwards & Anor [2005] WASAT 119 Wilson v Metaxas [1989] WAR 285 Nil |
Orders | 1. Leave is granted to review the decision of the Building Disputes Tribunal reflected on Order to Pay no 149/2004-05.,2. The matter is referred to a directions hearing, together with matter VR 283/2005 on 19 January 2006. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : BUILDERS' REGISTRATION ACT 1939 (WA) CITATION : ACCENT ON HOMES PTY LTD and GHIANN PTY LTD [2005] WASAT 321 MEMBER : MR C RAYMOND (SENIOR MEMBER) HEARD : 27 SEPTEMBER 2005 DELIVERED : 12 DECEMBER 2005 FILE NO/S : VR 235 of 2005 BETWEEN :
- ACCENT ON HOMES PTY LTD
Applicant
GHIANN PTY LTD
Respondent
Catchwords:
Builders' Registration Act 1939 Application for leave to review decision of Building Disputes Tribunal
Legislation:
Builders' Registration Act 1939 (WA), s 12A, s 41
Home Building Contracts Act 1991 (WA), s 17
State Administrative Tribunal Act 2004 (WA), s 27
Result:
Application granted
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Category: B
Representation:
Counsel:
Applicant : Mr G Slattery
Respondent : Mr G Wates and Ms J Wates
Solicitors:
Applicant : Arns and Associates
Respondent : Self-represented
Case(s) referred to in decision(s):
Tangent Nominees Pty Ltd and Edwards & Anor [2005] WASAT 119
Wilson v Metaxas [1989] WAR 285
Case(s) also cited:
Nil
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Summary of the Tribunal's decision
1 The applicant applied for leave to review the decision of the Buildings Disputes Tribunal (Disputes Tribunal) reflected in order to pay no 149/200405 dated 30 March 2005.
2 The State Administrative Tribunal (Tribunal) found that the Disputes Tribunal had erred in determining the dispute between the parties concerning four dwelling units as if they were governed by one contract, whereas each was the subject of a separate building contract. Consequently, the basis upon which the Disputes Tribunal had determined issues depending upon the date of completion of the units, the decision was open to doubt. This resulted in two of the three proposed grounds of review having a reasonable prospect of success. Although the Tribunal would ordinarily have been inclined to refuse leave to review on the proposed additional ground that the respondent was not entitled to a price adjustment because the Disputes Tribunal was said to have erred in regarding certain work as a provisional sum item, there were a number of issues raised in a related application for leave to review the same decision commenced by the respondent, and in all the circumstances, the most appropriate course was to grant leave to review the matter as a whole.
3 The Tribunal accordingly granted leave to review the Disputes Tribunal's decision and referred the matter to a further directions hearing to program the matter to a final hearing.
The application
4 The applicant has applied for an order for leave to review the decision of the Building Disputes Tribunal (Disputes Tribunal) reflected in order to pay no 149/200405 dated 30 March 2005.
5 The decision is reviewable by the State Administrative Tribunal (Tribunal) subject to leave being granted under s 41 of the Builders' Registration Act 1939 (WA) (BR Act).
6 The grounds on which it is sought to review the decision are set out in a document headed Notice of Appeal which is attached to the application.
7 The first ground challenges an award of $1171 made to the respondent in relation to the theft of appliances from a unit the subject of a building contract between the parties. It is submitted that the theft
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- occurred after the date of practical completion and that, accordingly, under the contract, risk lay with the respondent.
8 The second ground of the proposed review challenges compensation awarded of $4867 as a result of adjusting the cost of brick build-ups on the basis that they were to be regarded as provisional sum items.
9 The third ground of the proposed review challenges an award of $23 220 in respect of loss of rent. The challenge is made on the basis firstly that it is stated that the Disputes Tribunal lacked jurisdiction to make an award for loss of rental. Alternatively, it is asserted that the compensation was wrongly assessed because the Disputes Tribunal failed to correctly assess the date of commencement and failed to allow extensions of time for completion claimed by the applicant. Further, it is asserted that no loss of rental occurred because the properties were for sale during the relevant period and there was no evidence that the properties would have sold had no overrun occurred. The amount of the weekly rental used in assessing loss is also challenged on the basis there was insufficient evidence produced to support the assessment.
10 After the commencement of the above proceedings, the respondent also made an application to review the decision, being the matter of Ghian Pty Ltd and Accent on Homes Pty Ltd file no VR 283 of 2005. To facilitate the hearing of the matters, the Tribunal issues directions programming them to a hearing at the same time and also directed that regard be had to the documents filed in matter VR 283/2005 as if filed in this matter. A corresponding order was made in VR 283/2005 that regard be had to the documents filed in VR 235/2005 as if filed in that application.
The decision under review
11 Reference will be made to those parts of the Disputes Tribunal's reasons for decision which are relevant to the proposed grounds of review.
Ground 1
12 In dealing with the claim for loss of rent, the Disputes Tribunal at par 9.4 stated as follows:
"9.4 The Builder also claimed that the Owners could have let the units earlier than they did. The Owners had additional finishing work to do, but they stated that the range and extent of uncompleted and faulty work of the Builder and his failure to perform under the Order to
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- Remedy held them up. In view of the fact that Units 1 and 2 were completed a little later than Unit 4, we consider that it is reasonable to take the date of 9 December as a fair compromise for all units, which allowed the Owners to commence their own work unit by unit."
13 In its context, it is clear that the reference is to 9 December 2003. Indeed, in par 9.2, the Disputes Tribunal expressly states that the assessed date of practical completion was 9 December 2003.
Ground 2
14 In relation to the build-up issue, the Disputes Tribunal referred, at par 7.1, to the contractual provision, stating that the brick build-up cost "may need to be adjusted once extent has been determined on site, and will be adjusted with a variation issued to the clients". The Disputes Tribunal concluded that the contract contemplated an adjustment to the price and rejected the applicant's argument that the price was fixed.
Ground 3
15 The reasons for decision do not address any jurisdictional issue.
16 In relation to extensions of time, the Disputes Tribunal found that the applicant had made a request in a general way for an extension of time by way of a letter dated 11 July 2003. After referring to this letter, the reasons continue:
"This was not followed up with a letter determining the period actually required. The estimate was three to five weeks. It can be taken that the time of period [sic] of three weeks was known. The fact that they did not subsequently ask for another period of two weeks or more indicates that such a claim was not valid and that the delays were due to other causes - if any applied." (at par 9.1).
17 The reasons proceed to make findings as to the date of commencement of the work being 16 December 2002, that a loss of rent claimed of $1290 per week for the four units was not disputed as a reasonable rental figure and that, as stated, the assessed date of practical completion was 9 December 2003. It was found that there had been an overrun of 18 weeks which, at $1290 per week, resulted in the total amount awarded of $23 220.
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Considerations
18 In order to be entitled to leave to review the decision, it is incumbent on the applicant to show that the decision of the Disputes Tribunal is obviously wrong, or attended with sufficient doubt, such that if it were not to be reversed, a substantial injustice would result: Tangent Nominees Pty Ltd and Edwards & Anor [2005] WASAT 119. The Tribunal retains a broad discretion to grant or withhold leave see Tangent NomineesPty Ltd and Edwards & Anor above and Wilson v Metaxas [1989] WAR 285 at 294.
19 The effect of s 27 of the State Administrative Tribunal Act 2004 (WA) is that, once leave is granted, the basis upon which the original decisionmaker arrived at its decision becomes irrelevant. The review before SAT is by way of a hearing de novo. The purpose of the review is to produce the correct and preferable review at the time of the decision upon the review.
20 The documentation in the Tribunal file is extremely difficult to follow. The respondent complained on a number of occasions that it had not received documents due to be filed and served by the applicant. As far as can be ascertained, the respondent did ultimately receive the relevant documents. But the respondent complains that the document put up by the applicant as a sample of the contracts entered into between the parties is not a true copy. Little seems to turn on this for present purposes because it is not disputed that the contracts were all in the standard MBA Home Building Works Contract Edition 3 form. Reliance can be placed, therefore, on the printed general terms. Some of the documents provided, such as the complaint form originally lodged with the Disputes Tribunal, are incomplete, although that may be the fault of the Disputes Tribunal because the pagination is in accordance with the index to those papers.
21 Be that as it may, it appears to be common cause that there were four separate contracts entered into, one applying to each of the four units in question.
22 It suffices to say for present purposes that in relation to ground 1, that cl 26(e) does provide that the works shall be at the risk of the owner in all respects upon practical completion and that the Disputes Tribunal found that practical completion occurred on 9 December 2004. Although that finding may be open to some doubt, as referred to further below, if correct, this ground of review has reasonable prospects of success.
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23 In relation to ground 2, on the face of it, the findings of the Disputes Tribunal appear to have been open to it. In submissions put on behalf of the applicant, it was said that the Disputes Tribunal failed to take into account evidence that the applicant sent a variation to the respondent for signature prior to the execution of the contract.
24 If the variation was not signed, there may be little merit in the applicant's argument because the applicant proceeded with the works on the basis of the documentation as it then existed.
25 In relation to ground 3, as already observed, the Disputes Tribunal made no findings in relation to jurisdiction. In the applicant's submissions, it is argued that there was no power under "section 12(a) [sic] of the Act". This is understood to be a reference to s 12A of the BR Act. That submission is correct but the sample contract annexed to the affidavit of Gregory Grainger sworn 9 June 2005, in support of the application, reflects that the contract was one to which the Home Building Contracts Act 1991 (WA) (HBC Act) would apply. As already mentioned, the complaint form is incomplete and the last page, which requires the relief sought to be set out, is missing. Nevertheless, the documentation attached clearly shows that a claim was being made for construction delays, and that claim could only have been advanced under s 17 of the HBC Act. On the face of it, there is therefore little merit in the jurisdictional point.
26 The alternative grounds in relation to the loss of rental issue challenge the findings on which the delay claim is based.
27 It must be said that the findings made by the Disputes Tribunal in relation to the loss of rent claim are open to considerable doubt.
28 While the applicant contends that a more generous extension of time for practical completion should have been granted, the letter relied upon by the Disputes Tribunal hardly seems capable of being interpreted as a claim for three weeks' delay. It refers to consistent inclement weather over the past three to five weeks. At best, it therefore points to some interruption, but not necessarily continual delay for a period of three, or for that matter, five weeks. No reference is made to any notices which might constitute compliance with the contract requirements in order to claim an extension of time.
29 Further, the reasons for decision treat the relationship between the parties as if it was governed by a single contract. It is clear that the date of commencement and completion for each of the four units needs to be
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- assessed separately, and it certainly was not open for the Disputes Tribunal to take the view that as "Units 1 and 2 were completed a little later than Unit 4, we consider that it is reasonable to take the date of 9 December as a fair compromise for all units".
30 While the ground for review raises a number of ancillary issues, it is not necessary to make a separate determination in relation to each one of them. It is apparent that there is sufficient doubt as to the manner in which the loss of rental claim has been determined to find that the ground, generally, has reasonable prospects of success.
31 If the Tribunal were to be considering this application on its own, it would be inclined to refuse leave in respect of ground 2 above. But, there is also the application made by the respondent's herein in which they seek a review of the decision on different grounds. Some of the issues raised in that application are confused. Indeed, if that application were to be considered in isolation, the Tribunal would have refused leave in relation to certain grounds. But, having regard to both applications and all the issues raised, the Tribunal concludes that the most convenient course open is to permit a review of all matters in issue, on the basis that directions will be issued in due course, to ensure that the issues are more accurately defined and that papers are presented to the Tribunal in an orderly way.
Orders
32 For the above reasons, the Tribunal orders as follows.
1. Leave is granted to review the decision of the Building Disputes Tribunal reflected in Order to Pay no 149/200405.
2. The matter is referred to a directions hearing, together with matter VR 283/2005 on 19 January 2006.
I certify that this and the preceding [32] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR C RAYMOND, SENIOR MEMBER
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