ADCOCK and MOSMAN BAY CONSTRUCTION PTY LTD - [2021] WASAT 98

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   ADCOCK and MOSMAN BAY CONSTRUCTION PTY LTD [2021] WASAT 98
MEMBER:   MS KY LOH, MEMBER
MS S CHURN, SESSIONAL MEMBER

HEARD:   9 AND 10 MARCH 2021
DELIVERED          :   29 JULY 2021
FILE NO/S:   CC 1274 of 2020
BETWEEN:   TONY ADCOCK
First Applicant
FIONA KNOBEL
Second Applicant
AND
MOSMAN BAY CONSTRUCTION PTY LTD
Respondent

Catchwords:

Building services complaint - Cracks and other damage to neighbouring residence due to vibration from compacting works - Entitlement of neighbours to make building service complaint - Costs

Legislation:

Building Act 2011 (WA), s 19(3), s 20(c)
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(1), s 5(2), s 5(5), s 36(1), s 36(1)(a), s 36(1)(b), s 36(1)(c), s 38(1)(a), s 38(1)(b), s 38(2), s 38(2)(b), s 38(3)
Building Services (Complaint Resolution and Administration) Bill 2010 (WA)
Building services (Complaint Resolution and Administration) Regulations 2011 (WA), reg 5
Building Services (Registration) Act 2011 (WA), s 3, s 11
Building Services (Registration) Regulations 2011 (WA), reg 3, reg 13
State Administrative Tribunal 2004 (WA), s 9, s 63(1), s 63(2)

Result:

Application granted in part

Category: B

Representation:

Counsel:

First Applicant	:	In Person
Second Applicant	:	In Person
Respondent	:	Non-Appearance

Solicitors:

First Applicant	:	N/A
Second Applicant	:	N/A
Respondent	:	N/A

Case(s) referred to in decision(s):

Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32; (2016) 213 LGERA 81
Wolfenden and Mandurah Homes Pty Ltd [2020] WASAT 127 (S)

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The owners of a house at No 10 Garden Street Swanbourne (No 10), Mr Tony Adcock and Ms Fiona Knobel (owners), claim compensation for damage to their house caused during compacting works undertaken by the builder, Mosman Bay Constructions Pty Ltd, during the construction of their neighbour's house at No 12 Garden Street Swanbourne (No 12).
Indeed, the vibration from the compacting works were so intense that neighbours across the road experienced their whole house shaking and windows rattling. The owners' son likened the experience to an earthquake.
The engineering expert identified limestone at No 10 and No 12, and that vibration of soil through earthmoving equipment at No 12 could cause vibration to surrounding houses that are founded on the limestone.
The owners also claim for damage to their wall and gate at the front of their house when the builder's director reversed a bulldozer into the wall and gate.
For reasons set out below, we are satisfied that the builder has failed to carry out its construction work in a proper or proficient manner or was faulty or unsatisfactory. We will issue a building remedy order requiring the builder to pay the owners a sum of money, to be determined following receipt of a revised quote from the owners, to compensate for that failure.

Issue for determination

The primary issue for determination is whether the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read ADCOCK and MOSMAN BAY CONSTRUCTION PTY LTD and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] WASAT 98
Decision Date: 29 JULY 2021

CaseChat Overview and Summary

The case of Adcock and Mosman Bay Construction Pty Ltd involved a dispute between the owners of neighbouring properties, No 10 and No 12, over damage caused to No 10 by vibration from compacting works on No 12. The matter was heard in the Supreme Court of Western Australia. The owners of No 10 alleged that the construction of a two-storey residential dwelling on No 12 by Mosman Bay Construction Pty Ltd (the builder) caused cracks and other damage to their property, and sought a building services complaint against the builder.

The primary legal issue the court had to decide was whether the owners of No 10 were entitled to make a building services complaint against the builder under s 11 of the Building Registration Act, given that they were not the direct recipients of the building service. The court also had to determine whether the builder was a 'building service contractor' and 'registered building services provider' at the time of the compacting works, and whether the prescribed amount of $500,000 applied to the compensation sought by the owners.

The court found that the owners of No 10 were entitled to make a building services complaint against the builder as their interests in their own property were adversely affected by the carrying out of the regulated building service. The court held that the builder was a 'building service contractor' as a principal builder, and as such, a 'registered building services provider' at the time of the compacting works. The court further held that there was no impediment to a compensatory BRO being made against the builder as the compensation sought by the owners was less than the prescribed amount of $500,000.

The court ordered that a building services complaint be made against the builder for the damage caused to No 10 by the compacting works, and that the builder be ordered to pay compensation to the owners of No 10. The court also ordered that the costs of the proceeding be paid by the builder.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Under s 11 of the Building Registration Act, only building service contractors are entitled to carry out a 'prescribed building service', which is relevantly prescribed in the Building Services (Registration) Regulations 2011 (WA) (Building Registration Regulations) to include 'builder work as a principal builder'. In turn, relevantly, under the Building Registration Regulations: •'builder work' means, under reg 13, building work:a)for which a building permit is required; andb)with a value of $20,000 or more based on the value of the work estimated under Schedule 2; andc)carried out in an area of the State set out in Schedule 3; d)but does not include certain types of building work (which are not applicable to these proceedings).•'principal builder' is defined under reg 3 as a person who carries out, or undertakes to carry out, the builder work for another person. Under s 38(2) of the Building Services Act, a BRO cannot be made against an unregistered building services provider, although this impediment does not relevantly apply if the amount ordered under the BRO does not exceed the prescribed amount: s 38(2)(b) of the Building Services Act. The prescribed amount has not been prescribed by regulations, and is set at $500,000 pursuant to s 38(3) of the Building Services Act. In the Macquarie Dictionary Online (as at 29 July 2021), the following terms carry the following meanings:•'proper' is relevantly defined as '… 2. conforming to established standards of behaviour or manners; correct or decorous';•'proficient' is relevantly defined as '… 1. well advanced or expert in any art, science, or subject; skilled'; •'faulty' is relevantly defined as '… 1. having faults or defects'; and•'unsatisfactory' is defined as '… not satisfactory; not satisfying specified desires or requirements; inadequate'. In this case, the owners allege that their interests in their own property (No 10) is adversely affected by the carrying out by the builder of the regulated building service. As such, they are entitled to make a building services complaint against the builder for damage caused by the regulated building service. In our view, it matters not that the builder was not directly carrying out the building service on No 10, as the field of complainants are not expressly confined to the homeowner (unlike for home building work contract complaints). The building permit issued by the Town of Claremont clearly identifies the builder as a registered building contractor for the construction of a two storey residential dwelling at No 12 with an estimated value of $2,598,260 for the building work. We are satisfied that the builder was a 'building service contractor' as a principal builder, and as such, a 'registered building services provider' at the time of the compacting works and site works. There is no express assertion by Mr Walling that the builder ceased to be a registered building services provider at the time it became insolvent. To the extent that it can be implied it also ceased to be a registered building services provider, for reasons set out in [83]-[84], there is no impediment to a compensatory BRO being made against the builder as the compensation sought by the owners is less than the prescribed amount of $500,000.