AFRA CONSTRUCTIONS PTY LTD and YARAN PTY LTD

Case •

[2014] WASAT 74

•

24 JUNE 2014

No judgment structure available for this case.

AFRA CONSTRUCTIONS PTY LTD and YARAN PTY LTD [2014] WASAT 74



STATE ADMINISTRATIVE TRIBUNALCitation No:[2014] WASAT 74
BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)
Case No:CC:864/2013DETERMINED ON THE DOCUMENTS
Coram:MS N OWEN-CONWAY (MEMBER)24/06/14
29Judgment Part:1 of 1
Result: Tribunal declined to make home building work order
Application dismissed
B
PDF Version
Parties:AFRA CONSTRUCTIONS PTY LTD
YARAN PTY LTD
FAYAR GORJY
SHAHYAR GORJY

Catchwords:
Home building work contract ­ Assignment ­ Satisfaction and accord ­ Turns on own facts

Legislation:
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5(2), s 11(1)(d), s 12, s 43(1)(b)
Home Building Contracts Act 1991 (WA), s 3
State Administrative Tribunal Act 2004 (WA)

Case References:
Waldron and AFRA Constructions Pty Ltd [2013] WASAT 207

Orders
On the applicant's application and determined on the documents by Member Natasha Owen­Conway, it is on 24 June 2014 ordered that:,CC 865 of 2013,1. The current respondents in this proceeding are Yaran Pty Ltd, Mr Fayar Gorjy and Mr Shahyar Gorgy and the proceeding is amended to correctly refer to each of the above as the respondents.,2. The applicant's application to hear this proceeding with any other matter (save CC 866 of 2013, CC 867 of 2013 and CC 864 of 2013) is refused.,3. This proceeding is to be heard with CC 866 of 2013, CC 867 of 2013 and CC 864 of 2013.,4. Pursuant to s 43(1)(b) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), the Tribunal declines to make a home building work order.,5. The application is dismissed.,CC 866 of 2013,1. The current respondents in this proceeding are Yaran Pty Ltd, Mr Fayar Gorjy and Mr Shahyar Gorgy and the proceeding is amended to correctly refer to each of the above as the respondents.,2. The applicant's application to hear this proceeding with any other matter (save CC 865 of 2013, CC 867 of 2013 and CC 864 of 2013) is refused.,3. This proceeding is to be heard with CC 865 of 2013, CC 867 of 2013 and CC 864 of 2013.,4. Pursuant to s 43(1)(b) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), the Tribunal declines to make a home building work order.,5. The application is dismissed.,CC 867 of 2013,1. The current respondents in this proceeding are Yaran Pty Ltd, Mr Fayar Gorjy and Mr Shahyar Gorgy and the proceeding is amended to correctly refer to each of the above as the respondents.,2. The applicant's application to hear this proceeding with any other matter (save CC 865 of 2013, CC 866 of 2013 and CC 864 of 2013) is refused.,3. This proceeding is to be heard with CC 865 of 2013, CC 866 of 2013 and CC 864 of 2013.,4. Pursuant to s 43(1)(b) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), the Tribunal declines to make a home building work order.,5. The application is dismissed.,CC 864 of 2013,1. The current respondents in this proceeding are Yaran Pty Ltd, Mr Fayar Gorjy and Mr Shahyar Gorgy and the proceeding is amended to correctly refer to each of the above as the respondents.,2. The applicant's application to hear this proceeding with any other matter (save CC 865 of 2013, CC 866 of 2013 and CC 867 of 2013) is refused.,3. This proceeding is to be heard with CC 865 of 2013, CC 866 of 2013 and CC 867 of 2013.,4. Pursuant to s 43(1)(b) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), the Tribunal declines to make a home building work order.,5. The application is dismissed.

Summary
The applicant claimed loss and damage caused by the respondents' failure to pay for invoices relevant to four separate home building contracts.  The Tribunal found there was no loss proved to have been suffered by the applicant caused by the alleged failure to pay invoices on time, or caused by the respondents' conduct at all.  The Tribunal found further, that any claims arising from any home building contract were the subject of a deed of assignment executed by the applicant releasing the respondents from any claims.  Further, the Tribunal found any claims by the applicant against the respondents were the subject of a settlement agreement which was performed, and by means of which the applicant's claim in these proceedings were satisfied.  The Tribunal declined to make a home building work order and dismissed the applicant's four proceedings against the respondents.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA) CITATION : AFRA CONSTRUCTIONS PTY LTD and YARAN PTY LTD [2014] WASAT 74 MEMBER : MS N OWEN-CONWAY (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 24 JUNE 2014 FILE NO/S : CC 864 of 2013
    CC 865 of 2013
    CC 866 of 2013
    CC 867 of 2013
BETWEEN : AFRA CONSTRUCTIONS PTY LTD
    Applicant

    AND

    YARAN PTY LTD
    FAYAR GORJY
    SHAHYAR GORJY
    Respondents

Catchwords:

Home building work contract ­ Assignment ­ Satisfaction and accord ­ Turns on own facts

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5(2), s 11(1)(d), s 12, s 43(1)(b)


Home Building Contracts Act 1991 (WA), s 3
State Administrative Tribunal Act 2004 (WA)

Result:

Tribunal declined to make home building work order


Application dismissed

Summary of Tribunal's decision:

The applicant claimed loss and damage caused by the respondents' failure to pay for invoices relevant to four separate home building contracts. The Tribunal found there was no loss proved to have been suffered by the applicant caused by the alleged failure to pay invoices on time, or caused by the respondents' conduct at all. The Tribunal found further, that any claims arising from any home building contract were the subject of a deed of assignment executed by the applicant releasing the respondents from any claims. Further, the Tribunal found any claims by the applicant against the respondents were the subject of a settlement agreement which was performed, and by means of which the applicant's claim in these proceedings were satisfied. The Tribunal declined to make a home building work order and dismissed the applicant's four proceedings against the respondents.


Category: B


Representation:

Counsel:


    Applicant : Mr Mal Afrasiabi (Director of Applicant)
    Respondents : Mr Fayar Gorjy (Acting as Agent)

Solicitors:

    Applicant : N/A
    Respondents : N/A



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

Waldron and AFRA Constructions Pty Ltd [2013] WASAT 207

REASONS FOR DECISION OF THE TRIBUNAL:

The complaint to the Building Commissioner of Western Australia

1 On 3 July 2013, the delegate of the Building Commissioner of Western Australia (Commissioner) made a decision to accept four complaints, each dated 8 May 2013, by AFRA Constructions Pty Ltd (applicant) against Yaran Pty Ltd (Yaran) as the 'Respondent' made pursuant to s 5(2) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) and each concerning a breach of a separate home building work contract (HBWC) for construction of a dwelling on Lots 7, 8, 10 and 11, No 15 Ferguson Street, Falcon (15 Ferguson Street). This is evidenced by the date of the complaint form, the Commissioner's receipt number for the lodgement of the complaint form (856225 for each matter referred to the Tribunal concerning construction on Lots 7, 8, 10 and 11, 15 Ferguson Street), and the description of the complaint. In each referral to the Tribunal, the one original complaint form has been copied, and on the front of the form the address of the dwelling has been altered to refer to a particular Lot (7, 8, 10 or 11) at 15 Ferguson Street.

2 The Tribunal concludes that the Commissioner treated the one complaint as four individual complaints, each concerning an allegation of a failure to pay progress payments pursuant to, and in accordance with, an individual HBWC for the construction of a dwelling on an individual Lot at 15 Ferguson Street. Having so treated the complaint, the Commissioner's delegate referred each of the four complaints to the Tribunal pursuant to s 11(1)(d) of the BSCRA Act and each complaint was given a separate Tribunal proceeding number as follows:


    • CC 865 of 2013 concerning a HBWC to construct a dwelling on Lot 7, 15 Ferguson Street;

    • CC 867 of 2013 concerning a HBWC to construct a dwelling on Lot 8,15 Ferguson Street;

    • CC 866 of 2013 concerning a HBWC to construct a dwelling on Lot 10, 15 Ferguson Street; and

    • CC 864 of 2013 concerning a HBWC to construct a dwelling on Lot 11, 15 Ferguson Street.


3 Section 12 of the BSCRA Act provides that upon referral of the complaint to the Tribunal, the complainant is taken to be the applicant for the purposes of the State Administrative Tribunal Act 2004 (WA) (SAT Act).

4 Because of the common fact of these four matters, the Tribunal shall make an order that they are heard together. These reasons for decision concern all four matters.




The correct respondents

5 The Tribunal notes that the complaint to the Commissioner was made against 'Yaran Property Group' (page 2 of the complaint form) but the complaint has proceeded against only Yaran. The Tribunal notes that the complaints did not proceed before the Commissioner against Messrs Fayar and Shahyar Gorjy (both directors and shareholders of Yaran) who admit that they are also parties of each of the HBWCs.

6 The Tribunal considers that this was an error on the part of the Commissioner's delegate, and the Tribunal shall order that the name of the respondent in the Tribunal proceedings be amended to include Messrs Fayar and Shahyar Gorjy, as it was the clear intention of the applicant to complain against Yaran and Messrs Fayar and Shahyar Gorjy as the 'Yaran Property Group', being the admitted parties to the relevant HBWCs. Yaran, and each of Mr Fayar and Mr Shahyar Gorjy, shall hereafter be referred to as the respondents in each of the four complaints referred to the Tribunal by the Commissioner's delegate.

7 On the occasion of each directions hearing, Mr Fayar Gorjy attended and Mr Shahyar Gorjy also attended on 18 July and 22 October 2013. At all times in the Tribunal, both Mr Fayar and Mr Shahyar Gorjy had the opportunity to participate in the proceedings and did so through the actions of Yaran. Messrs Fayar's and Shahyar Gorjy's positions are the same as that of Yaran.




The nature of the claim against the respondents

8 The applicant claims that the respondents' alleged failure to make progress claims 'for nearly five months' in breach of each of the four HBWCs:


    … caused a lot of hardship and damage to AFRACON, a few clients of FALCON has applied for damages and Loses [sic]. Which currently in proceeding 'SAT', AFRACON requests the Building Commission and 'SAT' to arrange and Link any claim against AFRACON to be heard with this complaint and YARRAN [sic] pay all the claims lodged by the client's FALCON.

9 As and by way of background, the applicant has been a party to proceedings in the Tribunal both as an applicant (for claims pursuant to HBWCs against contracting owners of the dwellings constructed at 15 Ferguson Street) and as a respondent (for claims based upon faulty, unsatisfactory and non­proficient building work and breaches of HBWCs made by owners, for whom the applicant had constructed dwellings at 15 Ferguson Street). The applicant asserts that the respondents' alleged five month delay in making progress payments in respect of a total of four invoices, each issued pursuant to a specific HBWC concerning Lots 7, 8, 10 or 11, 15 Ferguson Street, caused:

    1) the applicant loss and damage in that it has been the subject of complaints for delay in completion of a number of dwellings for the owners of those dwellings constructed on a number of the Lots at 15 Ferguson Street; and

    2) the applicant loss and damage in that it has been the subject of complaints concerning faulty, unsatisfactory and non-proficient work in construction of a number of dwellings at 15 Ferguson Street, and resulted in the Tribunal making orders against the applicant in those other proceedings.


10 The applicant says all of those claims against it are the fault of the respondents' failure to pay on time the progress claims issued pursuant to the terms of four HBWCs for the construction of dwellings on Lots 7, 8, 10 and 11, 15 Ferguson Street.

11 The applicant asserts that the four invoices that were not paid for a period of five months are:


    • invoice 87 ($28,000 dated 11 October 2011);

    • invoice 83 ($28,000 dated 6 October 2011);

    • invoice 79 (5 October 2011); and

    • invoice 37 (3 September 2011).

    Only invoice 87 (concerning Lot 11) and invoice 83 (concerning Lot 10) were produced to the Tribunal.


The nature of the applicant's loss and damage claimed against the respondents

12 The applicant asserts the respondents' breaches caused it to lose the benefit of all of its other contracts to construct a dwelling at 15 Ferguson Street. As will be seen, the applicant claims from the respondents the monetary sum necessary for the respondents to meet the orders for payment to, and for remedial work to be performed for, the benefit of owners of Lots at 15 Ferguson Street made in a number of other Tribunal proceedings.

13 The applicant's final written submissions quantify the applicant's loss at $374,309.28, none of which has been the subject of any evidence.




Privity of contract issues

14 At this point it is necessary for the Tribunal to note that it is admitted that the applicant and respondents executed four HBWCs in respect of Lots 7, 8, 10 and 11, 15 Ferguson Street. It also seems to be common cause that the respondents were not the ultimate beneficiaries of the four HBWCs, and that either third parties were assigned the benefit of the four HBWCs for the construction of Lots 7, 8, 10 and 11, 15 Ferguson Street after construction of the same had commenced, or the HBWCs with the respondents were terminated and new HBWCs were executed with the new owners of the Lots after the respondents, or one of them, had sold the land to the new owners.

15 The respondents assert in each of CC 864 of 2013, CC 865 of 2013, CC 866 of 2013 and CC 867 of 2013 that they assigned the benefit of the four HBWCs to third parties to whom they had sold Lots 7, 8, 10 and 11, 15 Ferguson Street by way of four deeds of assignment to which the applicant was also a party. These alleged assignments occurred at different times in the construction of each of the dwellings on those Lots. The respondents rely on four alleged deeds of assignment and the express covenants therein to release them from liability to the applicant for any breach of the four HBWCs, which breaches they deny in any event.

16 The applicant, on the other hand, asserts that there were no assignments of the four HBWCs and, if there were, then the deeds of assignment do not bar the applicant's claims for breach of each of the HBWCs. The applicant's position is very unclear on the issue of privity of contract, and at times the applicant has referred to the respondents' attempt to 'cancel' the HBWCs, or one other of them. What is beyond doubt is that the respondents were not the owner of Lots 7, 8, 10 and 11, 15 Ferguson Street at the conclusion of the construction of the dwellings which were the subject of the four HBWCs. It follows that the four HBWCs were either assigned to the new owners or they were terminated and replaced with new HBWCs with the new owners. The applicant has not produced any evidence or given any oral evidence at any stage concerning how it came to pass that the new owners of Lots 7, 8, 10 and 11, 15 Ferguson Street were the parties to the four HBWCs with the applicant at the conclusion of the construction of those dwellings. The applicant simply says that the respondent remains liable for the delay in payment of the invoices referred to above.




The application to 'link' the complaints to 'claims against AFRACON'

17 At the initial directions hearing on 18 July 2013 in these proceedings, the applicant applied to have each of these matters linked or heard with disputes concerning the corresponding Lots at 15 Ferguson Street, between the new owner of the Lot/contracting party of a dwelling thereon and the applicant. At the time of the initial directions hearing, there were a substantial number of disputes concerning the applicant's construction of dwellings at 15 Ferguson Street, and each had achieved different stages of advancement in the Tribunal's dispute process.

18 The applicant did not identify any particular disputes which should be linked to any of the claims made by the applicant against the respondents. There have been no claims against the applicant in the Tribunal by the ultimate owners of Lots 7, 8, 10 and 11, 15 Ferguson Street. As referred to above, the applicant's claim is that the respondents' breaches of the four HBWCs caused the applicant's failure to comply with its contractual terms for the construction of a number of the dwellings at 15 Ferguson Street. Therefore, each of these complaints was incapable of being heard together with any other particular complaint against the applicant concerning construction of a dwelling at 15 Ferguson Street in the Tribunal. For this reason, the applicant's application to link these proceedings with any other matter before the Tribunal is refused.

19 Central to the applicant's argument is the assertion that the HBWCs for construction of 16 dwellings on the 16 Lots at 15 Ferguson Street were related and that all 16 dwellings were required to commence and be completed at the same time. The applicant's notice of complaint dated 14 April 2013 asserts that the construction of all 16 dwellings was 'inter dependant and mutually exclusive' (Tribunal's emphasis). The applicant, however, reiterated in submissions that the construction of the 16 dwellings was dependent on performance, all HBWCs commencing and progressing simultaneously to completion.

20 There is no contractual term that supports this conclusion. There was no dispute that all of the HBWCs for the construction of the 16 dwellings at 15 Ferguson Street are identical in their printed terms and special conditions. The Tribunal has had regard to each of the HBWCs with the respondents and the applicant concerning Lots 10 and 11, 15 Ferguson Street, and the express terms of the same are consistent with each HBWC being a stand-alone contract for the construction of a dwelling on a Lot at 15 Ferguson Street. There is no evidential basis to conclude that the respondents' performance of any one contract was to affect the applicant's performance of any other contract. For this further reason, the applicant's application to link each of its complaints against the respondents for breach of a HBWC with the claims by the ultimate owners against the applicant in respect of all or any other dwellings constructed at 15 Ferguson Street is refused.

21 The applicant submitted that the respondents, as the 'developers' of the strata scheme at 15 Ferguson Street to be constructed, knew and accepted that the applicant required all of the 16 dwellings at 15 Ferguson Street to be constructed simultaneously so that the construction of the 16 dwellings was profitable for the applicant. Whilst it may have been financially important for the applicant to construct all 16 of the dwellings simultaneously, there is no evidence that the respondents agreed to this requirement; that is, there is no evidence in the background facts and circumstances (such as the evidence permits) to support a finding that it was either an implied term, or an express oral term of the four HBWCs, that all 16 dwellings must be performed simultaneously with all other HBWCs for the construction of the other dwellings at 15 Ferguson Street.




The respondents' response in the Commission

22 Before accepting the applicant's complaints, the Commissioner's delegate called for Yaran to provide the Commissioner with its written comments and instructions in relation to the applicant's complaints. On 29 May 2013, Yaran (presumably on behalf of all of the respondents) emailed the Commissioner with an outline of the response in respect of the applicant's claim concerning Lots 10 and 11, 15 Ferguson Street. The respondents stated that they 'fully denie[d]' the claims made by the applicant to these 'contracts' [that is, Lots 10 and 11, 15 Ferguson Street]'. The Tribunal notes that the letter also relates to the HBWCs concerning Lots 8 and 9.

23 The Tribunal's interpretation of the respondents' response is as follows:


    a) By deed of assignment of each of the HBWCs between the applicant and the respondents, the applicant agreed to release the respondents from all liability relating to or arising from the same.

    b) Further to and apparently notwithstanding (a), on 3 September 2012 the parties agreed in writing to a full and final settlement of the dispute raised by the applicant that it was owed unpaid invoices and monies by the respondents. The written agreement is executed by Messrs Mal and Fred Afrasiabi on behalf of the applicant and by Messrs Faryar and Shahyar Gorjy in their own right and as directors of Yaran. The written agreement provides that the respondents shall pay the sum of $40,000 on 3 September 2012 and a further sum of $63,763 'within 4 months'. It is agreed that the sum of $63,763 'represents all extras payable in respect of the Falcon and 7 Lots at Bridgetown developments'.

    c) Further to (b) above, the respondents have paid to the applicant the sums of $40,000, as agreed on 3 September 2012.

    d) The applicant commenced Magistrates Court proceedings against all of the respondents, claiming the sum of $63,763 plus legal costs and interest on the sum claimed.

    e) On 14 March 2013, the respondents filed in the Magistrates Court a response admitting to $64,898.89 of the applicant's claim, which sum appears to constitute an admission of the whole of the applicant's claim in the Magistrates Court, based upon the settlement agreement referred to in (b) above.

    f) On 12 March 2013, the respondents drew a cheque, No 000535, payable to the applicant in the sum of $64,869.89, in accordance with the written agreement made on 3 September 2012 referred to in (b) above. It includes the sum of $702.27 for Magistrates Court costs, and $404.62 for interest in matter GCLM/3321/2013, in admission of the applicant's claim therein. The respondents tendered cheque No 000535 to the applicant under the cover of a letter dated 12 March 2013 which provides that the payment (by cheque) 'is made in full and final settlement of all monies owed by Faryar Gorjy, Shahyar Gorjy, Yaran Pty Ltd and their associated entities to [the applicant] for the Ferguson Street Falcon development and all 10 Lots at Highlands Estate Bridgetown, including but not limited to the monies claimed in the Magistrates Court Action No 3321 of 2013'.

    g) In respect of the applicant's claim for a specific amount of money for the cost of indemnity insurance paid for by the applicant to obtain the building licence for each of the dwellings, the respondents assert that the cost incurred by the applicant was necessary for the applicant to proceed to construction of the dwelling for the ultimate owner by way of assignment of the HBWC, or pursuant to a new contract following termination of any HBWC with the respondents; that is, the cost incurred by the applicant in obtaining the insurance was not thrown away or lost to the applicant.


24 The Commissioner's delegate wrote to the applicant on 6 June 2013 seeking a copy of the HBWC in the case of the construction of dwellings on Lots 7 and 8, 15 Ferguson Street. The applicant has never provided a copy of any HBWC for the construction of any dwellings on Lot 7 and 8, 15 Ferguson Street. Instead, the applicant filed with the Commissioner documents concerning the agreement of the respondents to pay the amount claimed by the applicant against the respondents in the Magistrates Court in matter GCLM/3321/2013 referred to above.

25 Notwithstanding that the applicant failed to produce the HBWC in respect of the construction of a dwelling on Lots 7 and 8, 15 Ferguson Street, the Commissioner's delegate accepted the complaint as being made pursuant to s 5(2) of the BSCRA Act, and a breach of a HBWC, as provided for by the Home Building Contracts Act 1991 (WA) (HBC Act). The Commissioner's delegate referred to a memorandum dated 8 December 2011 from Yaran wherein Yaran's business manager, Mr Robert Ford, made the statement that Yaran was the first entity to hold the beneficial interest 'in contract' in respect of Lots 7 and 8, 15 Ferguson Street; the second entity to hold the beneficial interest 'in contract' in respect of Lot 10, 15 Ferguson Street; and the third entity to hold beneficial interest 'in contract' in Lot 11, 15 Ferguson Street. Upon the basis of this admission, the Commissioner's delegate appears to have accepted that there was a HBWC between the applicant and Yaran, at least for the construction of a dwelling on each of Lots 7 and 8, 15 Ferguson Street at some point in time, even though no written contract was produced by either party. However, it was common cause that the parties had entered into a HBWC for the construction of a dwelling on each of Lots 7 and 8 in identical terms to the HBWCs for Lots 10 and 11. For the reasons referred to herein, and based on the concessions of the parties, the Tribunal finds on the balance of probabilities that the applicant and the respondents did enter into four HBWCs for the construction of dwellings on Lots 7, 8, 10 and 11, 15 Ferguson Street.




The respondents' response in the Tribunal

26 In the Tribunal the respondents denied liability for any claims made by the applicant for the reasons referred to in (a) to (d) above. The respondents filed a deed of assignment of the HBWC between themselves and the applicant concerning the construction of a dwelling on Lot 11 wherein the benefit of the HBWC was assigned to Mr Anthony James Nunn and Mrs Michelle Nunn (Deed Lot 11). The respondents filed an incomplete but executed copy of a deed of assignment of the HBWC between themselves and the applicant in respect of Lot 10, whereby the benefit of the HBWC was assigned to Mr and Mrs Prinsloo (Deed Lot 10). In respect of Lots 7 and 8, the respondents assert that they did execute two deeds of assignment to assign the benefit of the HBWCs for the construction of dwellings on Lots 7 and 8, but have been unable to locate the original or a copy of either deed of assignment.

27 Mr Faryar Gorjy declared in a statutory declaration that he has undertaken a search of Yaran's office and made enquiries of its solicitors, the assignees and the applicant, and has not been able to locate either of the deeds of assignment of the HBWCs in respect of Lots 7 and 8.




Applicant's contract to undertake the work for the development of the strata scheme at 15 Ferguson Street

28 Mr Mal Afrasiabi asserted that, at some time well prior to execution of the HBWCs to construct dwellings at 15 Ferguson Street, the applicant offered, and the respondents accepted the applicant's offer, to undertake work to two green title Lots which ultimately formed the strata scheme at 15 Ferguson Street, in preparation of the strata scheme. The respondents did not deny that assertion.

29 There is no evidence concerning the contract between the applicant and the respondents for the preparation of the strata development site, nor of the terms on which the respondents and the applicant agreed for the applicant to prepare the strata scheme Lots. This work is additional to, and separate from, the construction of the individual dwellings on the prepared and constructed Lots of the strata scheme at 15 Ferguson Street. The Tribunal appreciates that in order for the Lots to have been developed, site work was required, as well as work to install drainage, cabling and the construction of various aspects of common property, including a proposed common property driveway. No material was provided to the Tribunal concerning the contract for this work between the parties, or any details of such work. The only information Mr Mal Afrasiabi provided to the Tribunal was that when he agreed to do this work for the respondents it was required to be done urgently. Unfortunately, there was no attempt by the applicant to separate the work undertaken by the applicant for the respondents in development of the strata scheme and the Lots from the construction of the individual dwellings on the Lots. This may be because, as Mr Mal Afriasibi stated in evidence, it was all done together because of a real or perceived urgency. Evidence to support this urgency was not provided to the Tribunal.

30 The need to distinguish the work performed in respect of different contracts is necessary for the Tribunal to consider what alleged losses (if any) flowed from the breaches of which contracts. In these proceedings, the applicant claims that all of its alleged losses flowed from alleged breaches of the four HBWCs concerning Lots 7, 8, 10 and 11, 15 Ferguson Street. However, Mr Mal Afrasiabi asserted that the construction of various dwellings for individual owners of the Lots could not be completed and was delayed because the applicant had not constructed the common property driveway for the developer of the strata scheme. This fact alone demonstrates that the alleged losses suffered by the applicant were not all attributable to the respondents' alleged breaches of the four HBWCs as claimed in this proceeding.




The proceedings

31 As mentioned, this application was made by way of complaint to the Commissioner, and the Commissioner's delegate referred the complaints to the Tribunal. On 18 July 2013, the matters were listed for initial directions and orders were made to facilitate the filing of a statement of issues, facts and contentions in support and a statement of issues facts and contentions in response, which statements were expected to identify the relevant issues in dispute in each matter. The matters were adjourned to 22 October 2013 for further directions with a view to listing the matters for final hearing. The applicant did not file statements of issues, facts and contentions as ordered. On 12 September 2013, the applicant filed in the Tribunal a copy of an email from the applicant to the respondents dated 25 August 2011 and, what was expressed as, 'the translated transcribed from the voice recorded email sent by the director of Yaran Group Shahyar Gorjy', which document was incomprehensible and of no weight. The order made on 18 July 2013 directed the parties to specify, with particularity, the details of the disputes concerning the construction of the dwellings at each of Lots 7, 8 10 and 11, 15 Ferguson Street. The applicant's documents filed on 12 September 2013 did not focus on the issues in dispute.

32 The respondents filed a letter dated 13 September 2013 referring to:


    1) the deeds of assignment of each of the HBWCs;

    2) the release and discharge clauses of the deeds of assignment;

    3) an additional settlement agreement dated 3 September 2012 between the applicant and the respondents concerning, amongst other matters:


      • the disputes arising from the four HBWCs for the construction of the dwellings on Lots 7, 8, 10 and 11, 15 Ferguson Street and Bridgetown;

      • the payment of the sum of $40,000 pursuant to the settlement agreement;

      • the payment of the balance of the agreed amount and costs and interest pursuant to that agreement; and

      • the settlement of the Magistrates Court proceedings in full and final settlement of all of the applicant's claims as referred to in the respondents' letter dated 12 March 2013,

    all of which are referred to in (a) to (d) above of the respondents' response to the Commission.

33 On 13 February 2014 the respondents filed a letter indicating that only one complete deed of assignment was located by the respondents (Deed Lot 11). The respondents also filed:

    • a copy of the letter agreement dated 3 September 2012 signed by all parties;

    • a schedule supporting the calculation of the amount agreed to be paid by the respondents to the applicant as at 3 September 2012, which is signed by the applicant's directors as well as the respondents;

    • a copy of the cheque for payment of $64,869.89 by the respondents to the applicant, and the letter accompanying that cheque dated 12 March 2013; and

    • a copy of the account for 'Yaran Holdings Pty Ltd', showing the presentation and payment of the aforesaid cheque.


34 On 22 October 2013, the Tribunal listed the matter for mediation on 11 November 2013, largely at the request of the applicant's representative, Mr Mal Afrasiabi. The mediation did not result in a resolution by agreement and the matter was listed for a directions hearing on 6 December 2013. At the latter directions hearing, the Tribunal made orders for the respondents to file additional specific documents. The Tribunal afforded the applicant the opportunity to file any additional documents or submissions in reply to the respondents' response, notwithstanding the applicant's failure to file a statement of issues, facts and contentions in support as ordered earlier.

35 Both parties sought an order that the proceedings be determined on the documents and the submissions made to date. Neither party wished to devote any further time or funds to these proceedings.

36 On 17 February 2013, the applicant filed a letter in each matter quantifying the applicant's losses at $374,309.28. In the letter, the applicant advances the proposition that the letter agreement dated 3 September 2012, that the Magistrates Court proceedings claim and the payment received on 12 March 2013, do not relate to or compromise the applicant's claim in these proceedings. A number of additional invoices are identified as being payable, but the invoices themselves were not provided. The letter is, at best, a submission without any supporting evidence.




The issues


    1) Whether the applicant's four claims against the respondents for breach the four HBWCs, or either of them, is barred by reason of the express covenants and terms of four deeds of assignment between the applicant, the new owners of each of Lots 7, 8, 10 and 11, 15 Ferguson Street, and the respondents. Yes.

    2) Whether the applicant's four claims against the respondents for breach the four HBWCs, or either of them, is barred by reason of an agreement made on 3 September 2012, pursuant to which the respondents paid to the applicant $40,000 and expressly agreed to pay a further $63,763. Yes.

    3) Whether the applicant's four claims against the respondents for breach the four HBWCs, or either of them, is satisfied by reason of the applicant's acceptance of the sum of $40,000 and/or acceptance of the sums of $40,000 and $63,763, or acceptance of the payment of those sums. Yes.

    4) Whether the applicant's alleged loss and damage was caused by the respondents alleged breach of the four HBWCs. The applicant's alleged loss and damage was not caused by the respondents' failure to pay for invoices on time or at all.





The facts

37 The facts are ascertained from the documents provided by the Commissioner and filed by the parties along with oral submissions made by the parties at directions hearings.




Lot 11, 15 Ferguson Street

38 On 9 November 2011, the applicant and the respondents entered into a lump sum building contract for the applicant to construct a single storey dwelling on what was proposed to become Lot 11, 15 Ferguson Street (HBWC Lot 11). This contract complies with the definition of a home building work contract (s 3 of the HBC Act). The subdivision of the property had not taken place and no new strata title had been issued at that stage. No details were supplied of the terms of the dwelling to be constructed, or the 'works' as defined by the HBWC Lot 11 in terms of plans, specification or addenda. However, the Tribunal is aware that the plans, specification and addenda referred to in Waldron and AFRA Constructions Pty Ltd [2013] WASAT 207 (CC 124 of 2013) was produced by the local municipal council in that matter, pursuant to a summons to produce documents issued to the local municipal council's principal officer, issued on the Tribunal's motion, and the parties have agreed that the Tribunal may refer to that original exhibit as an exhibit in this proceeding. That exhibit comprises the plans for all of the dwellings to be constructed on the 16 Lots at 15 Ferguson Street and all of the common property areas of the strata development.

39 The terms of HBWC Lot 11 as to payment are provided for in the schedule of particulars to HBWC Lot 11, each of which provides that, pursuant to clause 7 of HBWC Lot 11, the following amounts are payable by the respondents to the applicant:


    • a deposit of 6.5% of the contract price$7,280;

    • '10% 20%' of the contract price, being '$11,200.00 $22,400.00', at the slab down stage of construction;

    • '15% 25%' of the contract price, being '$16,800.00 $28,800.00', at the completion of construction at plate height;

    • '20% 20%' of the contract price, being '$22,400.00 $22,400.00', at the completion of the stage of roof cover construction;

    • '15% 20%' of the contract price, being '$16,800.00 $22,400.00', at the completion of the lock up stage of construction;

    • '15% 4.5%' of the contract price, being '$16,800.00 $5,040.00', at the completion of 'practical completion'; and

    • '18.5% 4%' of the contract price, being '$20,720.00 $4,480.00', upon 'hand over'.


40 This totals $112,000.00, including GST. The amended percentages and sums are initialled, but there is no information before the Tribunal concerning who initialled the changes. The initials appear similar to those of Mr Mal Afrasiabi, and there appears to be only one set of initials, and no initials for the respondents. There is no evidence concerning when the changes to the percentages and sums were made and agreed to (assuming they were agreed to by both parties). However, there is no objection or dispute between the parties that the contract attached to the original complaint comprises the contract between the applicant and respondents.

41 It should also be borne in mind that the following are express terms of clause 7 of HBWC Lot 11:


    (a) The Owner shall pay to the Builder the deposit set out in Item 7 of the Schedule immediately on the later of the day that this Contract is signed or the day that the Owner is given a certificate that evidences the taking out of Home Indemnity Insurance.

    (b) Within TEN (10) working days of the Builder giving the Owner a notice that any of the Works described in Column 'A' of Item 7 of the Schedule have been completed, the Owner shall pay to the Builder that portion of the Contract Price mentioned opposite such Works in Column 'B' of Item 7 … .

    …

    (e) If the Owner does not pay any amount owing to the Builder by the due date for payment:


      (i) the Owner must pay interest for late payment at the rate set out in Item 8 of the Schedule on such amount that is unpaid from time to time; and

        (ii) the Builder may suspend the carrying out of the Works until payment is received in full.
    …

42 Clause 9 of HBWC Lot 11 states:

    …

    (b) Subject to this Contract the Builder shall complete the Works (bring the Works to Practical Completion (Clause 19(a)) by the time specified in Item 9(b) of the Schedule. The Builder is entitled to an extension to the time for completion of the Works due to delay from a cause beyond the Builder's sole control including:


      …

      (vii) any cessation of work pursuant to Clause 7(e)(ii)[.]


    (c) The Builder shall give to the Owner a notice of any extension of time to which the Builder is entitled within TWENTY (20) working days of the Builder being aware of both the cause and the extent of the delay.

43 On 9 November 2011, the applicant and each of the respondents signed a variation order to alter the layout of the kitchen bench.

44 As can be seen from clauses 7(e)(ii), 9(b)(vii) and 9(c) of the HBWC Lot 11, the applicant (as the 'Builder') was obliged to give the respondents (as the 'Owner') notice of any extension of time to which the applicant claimed entitlement, pursuant to clause 7(b) of the HBWC Lot 11, by reason of any delay by the respondents in payment of a stage progress payment, within 20 working days of the applicant being aware of both the cause and extent of the delay. Therefore, non­payment of any progress claim by the respondents (as the 'Owner') on the due date entitled the applicant (as the 'Builder') to issue a notice to the respondents, notifying the respondents that the applicant has suspended the carrying out of the construction of the dwelling which would continue until payment of the instalment amount. The applicant (as the 'Builder') was also obliged to serve the respondents with a notice of an extension of time for the practical completion of the contract, commensurate with the period of time that the applicant (as the 'Builder') was entitled to suspend work for non-payment of a progress claim, should the applicant have required additional time to reach practical completion pursuant to the terms of HBWC Lot 11.

45 As there is no contractual entitlement to claim interest on the unpaid instalment due (because item 8 of the schedule of particulars of the HBWC Lot 11 did not include any reference to the percentage of interest that would be payable in that event), the applicant, on the facts of this case, could not claim interest against the respondents pursuant to clause 7(e)(i) and item 8 of the schedule of particulars of HBWC Lot 11. The applicant, however, had a contractual right to suspend work pursuant to HBWC Lot 11 and serve notice on the respondents to extend the time for practical completion of the construction of the dwelling. There is no evidence that the applicant took this course so as to preserve its financial resources.

46 HBWC Lot 11 is not dated, but Deed Lot 11 provides that the date of the HBWC Lot 11 is 22 September 2011. There is no other document produced by the parties to the Tribunal which assists in identifying the date of the HBWC Lot 11.

47 On 18 March 2011, the applicant obtained the certificate of insurance for residential building work in respect of construction of a new single storey dwelling on Lot 11 Ferguson Street, Falcon, and the benefit of the certificate is expressed to be for 'L & P Pope'. By letter dated May 2011 from the respondents to the applicant, the respondents noted that the 'original building contract' for Lot 11 'Sajdl' was attached. These documents tend to suggest that as at some time prior to the execution of the HBWC Lot 11, there was a home building contract for the construction of a dwelling on Lot 11 between the applicant and a person known as Sajdl, and prior to that date, 'L & P Pope'.

48 By memo dated 8 December 2011, the respondents, through its servant or agent, Mr Ford, business manager, represented that the beneficial interest in the 'contract' before and during construction of Lot 11, 15 Ferguson Street had changed as follows:


    First: Daphne and Sannah Samura;

    Second: San San Win;

    Third: Yaran Pty Ltd; and

    Fourth: Anthony James and Michelle Nunn.


49 The contents of that memorandum are inconsistent with a finding that, as at March 2011 and May 2011, the applicant had entered into a home building contract with someone named Sajdl, and later 'L & P Pope'. The memorandum is inconsistent with the terms of the contract between the respondents and the applicant, and it suggests that there was one contract, the 'benefit' of which has been assigned three times. The memorandum does not identify the dates on which the beneficial interest in the contract changed from Samura to Win; Win toYaran; and, Yaran to Anthony James and Michelle Nunn. The Tribunal finds that the memorandum by Mr Ford is not an accurate record of the history of assignments of any HBWC concerning Lot 11, 15 Ferguson Street.

50 On 27 October 2011, the respondents and their directors, and the applicant along with Mr and Mrs Nunn, entered into Deed Lot 11. The document is expressed to be a 'Deed' and is executed by all parties and all signatures are witnessed as a deed. Relevantly, the recitals record that the respondents and the applicant entered into a building contract dated 22 September 2011 for work to be performed by the applicant on Lot 11, 15 Ferguson Street. It also recites that on 27 October 2011, the respondent executed a contract with Mr and Mrs Nunn to sell Lot 11 to them. It further recites that the respondents intended to assign to Mr and Mrs Nunn the benefit of the contract HBWC Lot 11. The Tribunal notes that although Deed Lot 11 bears the date of 27 October 2011, there is no information from either party concerning the date of settlement of the contract of sale of Lot 11 from the respondents, or any one of them, and Mr and Mrs Nunn.

51 Deed Lot 11 expressly provides:


    • The respondents have complied with all terms of the assigned HBWC Lot 11 (clause 2.3).

    • The respondents have not committed any act or omitted to do any act in relation to the assigned HBWC Lot 11 in respect of which the applicant has become entitled to take any action to terminate the building contract (clause 2.2).

    • The HBWC Lot 11 is, at the date of Deed Lot 11, and will be as at the assignment date, valid and subsisting (clause 2.1).


52 Clause 1 of Deed Lot 11 purports to assign all of the estate and interests of the respondents in HBWC Lot 11, and all of the rights and obligations of the respondents under the same, absolutely to Mr and Mrs Nunn, with effect from the assignment date. Clause 6 of Deed Lot 11 expressly provides that Mr and Mrs Nunn, as the assignees, shall at the time of the assignment pay to the respondents the sum specified in item 10 of the Schedule to Deed Lot 11, being an amount equal to the amount previously paid by the respondents to the applicant pursuant to the provisions of the HBWC Lot 11, and from that moment onwards Mr and Mrs Nunn, as the assignees of the benefit of HBWC Lot 11, shall assume 'full and exclusive liability in respect of all payments due on and after the assignment to the applicant pursuant to the [HBWC Lot 11]' (Tribunal's emphasis).

53 Item 10 of the Schedule to Deed Lot 11 provides that the amount payable to the respondents by Mr and Mrs Nunn as at 22 September 2011 (the date of the execution of HBWC Lot 11 according to the recitals of Deed Lot 11) is:


    • $7,280 (deposit)

    • $11,200 (slab down)

    • $18,480 including GST.


54 Clause 9 of Deed Lot 11 provides:

    …

    9.3 The assignee acknowledges and agrees that the balance of the revised contract price (after the payment of the amount previously paid by the assignor to AFRA Construction) payable by the assignee to AFRA Construction pursuant to the provisions of the building contract (as varied by this Deed) is the amount specified in item 11 of the Schedule.


55 Item 11 of the Schedule to Deed Lot 11 refers to the sum of $93,520 as at 22 September 2011.

56 The sum of the amounts referred to in items 10 and 11 of the Schedule to Deed Lot 11 ($18,480 and $93,520) equate to the contract price of the HBWC Lot 11. Items 10 and 11 of the Schedule to Deed Lot 11 provide for an adjustment to the amounts to be paid by Mr and Mrs Nunn to the respondents, and the sum for which they would become liable to the applicant in the event that the respondents paid to the applicant further monies pursuant to the HBWC Lot 11 prior to the date of assignment.

57 The applicant has agreed, as a party to Deed Lot 11, that the respondent had paid to the applicant, as at 22 September 2011, the deposit and half of the slab down payment referred to in the Schedule to HBWC Lot 11. Further, the applicant has agreed, as a party to Deed Lot 11, that the balance of the contract price referred to in HBWC Lot 11 shall be paid not by the respondents but by Mr and Mrs Nunn.

58 By reason of the following clauses, the applicant has agreed, as a party to Deed Lot 11, that it is barred from making any claim against the respondents under HBWC Lot 11 after the date of assignment for any monies due but unpaid by the respondents or for any money to become due under HBWC Lot 11. Further, the breadth of the release, discharge and bar includes all the current, as well as future, claims for monies under the HBWC Lot 11 whatsoever arising out of, or in any way connected with, HBWC Lot 11.

59 Clause 7 of Deed Lot 11 provides:


    7.1 AFRA Construction releases and discharges the assignor on and from the assignment date from all then existing and future liabilities claims and demands whatsoever arising out of or in any way connected with the building contract, to the intent that on and from the assignment date the assignor shall have no further obligations to AFRA Construction pursuant to the building contract.

    7.2 This release and discharge may be pleaded by the assignor against AFRA Construction in respect of any action suit claim proceeding demand cost charge or expense claimed by AFRA Construction against the assignor arising out of or connected in any way with the building contract whether arising or occurring before or after the assignment date.


60 Any existing liability on the date of assignment is to be paid by Mr and Mrs Nunn, and the respondents were discharged of any obligation to pay such monies; that is, only Mr and Mrs Nunn were liable to pay monies outstanding as at the assignment date. Whilst there is no evidence of the assignment date, there is no dispute between the parties that there is an effective assignment date. Neither party has provided that date to the Tribunal.

61 On 6 October 2011, before the date of Deed Lot 11 and settlement of the sale of Lot 11, the applicant issued an invoice (invoice 83) to the respondents in the sum of $28,800 including GST, being the sum due pursuant to the Schedule to HBWC Lot 11, for completion of the plate high stage of construction. Invoice 83 is one of the four invoices referred to in the complaint that the applicant asserts was not paid by the respondents for 'nearly 5 months', and upon which the applicant bases it claim for loss caused by the respondents' breach of HBWC Lot 11. Invoice 83 is the only invoice that originally was referred to in the notice of complaint that related to Lot 11.

62 On 14 November 2011, after Deed Lot 11, the applicant issued invoice 98 to the respondents in the sum of $22,400, being the sum due pursuant to the Schedule to HBWC Lot 11 for completion of the roof cover stage of construction.

63 The provisions of clause 7 of Deed Lot 11 operate to release and discharge the respondents from any claim for either invoice, or for any claim arising from HBWC Lot 11 by the applicant. The express terms of Deed Lot 11 discharges the respondents from liability for payment or for breach of HBWC Lot 11 by late payment of the invoice issued on 6 October 2011. The representation which the applicant has agreed with in clauses 2.2 and 2.3 of Deed Lot 11 is that the respondents as the assignor have complied with all of the terms and conditions of HBWC Lot 11. The applicant claims that it was the failure to pay invoice 83 as and when it fell due under HBWC Lot 11 that caused the applicant's loss, as it expended its resources to perform the construction of the dwelling whilst being kept out of funds for such a long time. The respondents were not liable for that invoice after the assignment date and were discharged from any liability arising from HBWC Lot 11 as of the assignment date.

64 Further, the applicant failed to address its decision not to exercise the power conferred on it by HBWC Lot 11 to suspend the works and serve notice of an extension of time to complete the construction (clause 9(b)(vii) HBWC Lot 11). Exercise of that power may have mitigated the applicant's losses (assuming there were any). In any event, that claim is not one that the applicant can proceed with against the respondents.




Lot 10, 15 Ferguson Street

65 The facts in relation to Lot 10 are similar to those of Lot 11. The document provided to the Commissioner dated 2 August 2011 indicates that the original HBWC for construction of a dwelling on Lot 10 was between the applicant and 'Nkeschand & Shivachand'. The letter from Yaran's business manager, Mr Ford, indicates that Yaran was the second beneficial owner of the 'contract' concerning Lot 10 following 'Nkeschand & Shivachand', the third beneficial owner being Mr and Mrs Prinsloo. The terms of HBWC Lot 10 are identical to those for HBWC Lot 11 as amended. There is also an insurance certificate noting an 'A Morris' as the owner of Lot 10. The respondents have provided a partially completed deed of assignment in respect of Lot 10 to Mr and Mrs Prinsloo (Deed Lot 10). Pages 3 and 4 of Deed Lot 10 are missing, but the respondents submit in their letter dated 11 February 2014 that Deed Lot 10 is in identical terms to Deed Lot 11, as the deeds were drafted as a standard instrument by the respondents' solicitors. This was not challenged by the applicant. The Tribunal accepts the respondents' assertion and is satisfied that the missing pages have been the subject of due search and enquiry (see statutory declaration of Mr Faryar Gorjy dated 11 February 2014) and cannot be found. The Tribunal finds that the missing pages of the Deed Lot 10 are identical to those pages in Deed Lot 11.

66 Deed Lot 10 was executed on 15 November 2011, and there is no information provided by either party concerning the effective assignment date in the case of HBWC Lot 10. The applicant's notice of complaint refers to invoice 87, which is dated 11 October 2014, and is expressed to be for the sum of $28,000. The applicant also provided the Commissioner with a further invoice, invoice 97, dated 11 November 2011, in the sum of $22,400. Both of these invoices were issued before the date of Deed Lot 10.

67 For the same reasons as referred to in the case of Lot 11, the Tribunal concludes that the respondents are released from liability for these sums and from all claims arising under HBWC Lot 10 as the assignment date. As in the case of Deed Lot 11, neither party has provided evidence of the date of the effective assignment, although it is beyond doubt that the assignment did take place.




Lots 7 and 8, 15 Ferguson Street

68 The respondents assert that the HBWCs with the applicant concerning Lots 7 and 8 were assigned to third parties but they do not assert who those third parties are. It is agreed that the respondents were not the owners of Lots 7 and 8 at the end of construction of the dwellings. The Tribunal is not aware to whom any HBWCs concerning these Lots were assigned. The documents refer to different individuals as the ultimate beneficial 'Owner' of these contracts.

69 Mr Faryar Gorjy has sworn a declaration that he has caused all due enquiry to be made for the original or a copy of the deeds of assignment in respect of any HBWCs concerning Lots 7 and 8. The applicant denies that there were deeds of assignment concerning the HBWCs concerning Lots 7 and 8. However, the applicant's representative, Mr Mal Afrasiabi, and co­director, Mr Fred Afrasiabi, have denied all assertions that they perceive to be negative to their case, even when those assertions are plainly correct. On balance, the Tribunal finds that any HBWCs between the applicant and the respondents were more probably than not assigned by way of a deed or deeds in exactly the same terms as Deed Lot 11 and that the claims arising from late payment of invoices issued pursuant to either contract are extinguished by the terms of such deeds for the reasons referred to above. Further, the applicant has never provided the Commissioner or the Tribunal with any invoices concerning Lots 7 or 8. The Tribunal concludes that there is no evidence at all of any invoices having been issued to the respondents in respect of any HBWCs concerning Lots 7 or 8. The Tribunal finds that more probably than not the applicant's claim against the respondents concerning HBWCs relating to Lots 7 and 8 are bound by the term of deeds of assignment in the same, or substantially the same terms as Deed Lot 11, even if there were invoices issued that were not paid in a timely manner.




Satisfaction and accord

70 In any event, the respondents say that regardless of any deeds of assignment, any claims that the applicant had against the respondents, have been compromised by an accord reached (3 September 2012) and satisfaction of that accord (3 September and 12 March 2013). The Tribunal has examined each of the documents provided by the respondents, including the spreadsheet signed by each of the applicant's directors in which reference is made to payments by the respondents and claims made by the applicant, concerning the construction of various dwellings at Falcon Street and in Bridgetown. The spreadsheet arrives at a figure that is signed by the applicant's directors which indicates agreement. The spreadsheet also appears to concern payments and claims arising from the work performed for the strata development (and another development in Bridgetown and the construction of dwellings in Bridgetown). Against this detailed background, the applicant has repeated that the compromise does not concern any property at 15 Ferguson Street, or any HBWC related thereto. The final agreed total referred to in the spreadsheet supports the agreement reached and recorded in the terms of the respondents' letter dated 3 September 2012 and the payments made on 3 September 2012 and 12 March 2013, both of which payments (by cheque) were unreservedly accepted and deposited by the applicant in full and final settlement of all claims that might be made by the applicant against the respondents.

71 The applicant's current assertion to now be owed over $300,000 for breaches is not accepted, and the Tribunal finds that the accord reached in September 2012 for a compromise of all claims between the parties was satisfied by the payment of the sum identified and agreed to in the accord. The Tribunal finds that the claims by the applicant have been satisfied, and the applicant has no right to make further claims against the respondents at all arising from the matters referred to in the satisfied accord, including matters arising from the four HBWCs.




The losses

72 Finally, the Tribunal concludes that the applicant has failed, in any event, to persuade the Tribunal that it has suffered any loss caused by any conduct of the respondents. The applicant's failure to meet the terms of the various HBWCs at 15 Ferguson Street, and to meet the standards of proficiency in construction identified in a series of matters before this Tribunal, cannot be attributed to the respondents' failure to pay four invoices on time, rather than being caused by its own failure to construct in accordance with the plans, specifications, addenda and to the requisite standard. There is no evidence or information of any description that the alleged losses were caused by the respondents. Further, the applicant has never sought to identify the alleged losses, save that it most recently claimed losses of over $300,000 in respect of a series of invoices which have never been provided to the Tribunal. The applicant did not articulate what its losses are and how they may be recovered as a matter of law and fact against the respondents. The applicant has not dealt with the fact that its remedy under the terms of the HBWCs was to suspend work on the construction of the dwelling for which it had not received payments of its progress claims until payment. The applicant's claim against the respondents for losses of such magnitude deny the facts of the reported matters involved the applicant's blatant failures to adhere to the terms of the HBWCs in question in the related matters and meet the basic standard of proficiency required by the BSCRA Act. The Tribunal finds there is no evidence to support the conclusion that, even if the respondents did fail to pay the four invoices as asserted, and even if the respondents remained liable to the applicant pursuant to any HBWCs concerning Lots 7, 8, 10 and 11, 15 Ferguson Street, the applicant has not established that it suffered any losses caused by the respondents' conduct.




Conclusion

73 For all of these reasons, the Tribunal finds that the applicant's claim that it has suffered losses caused by any alleged breaches by the respondents of any HBWCs between the parties for construction of a dwelling on Lots 7, 8, 10 and 11, 15 Ferguson Street to be unproved, alternatively barred by reason of the terms of deeds of assignment and release, and, in any event, satisfied by fulfilment of an accord reached on 3 September 2012. Pursuant to s 43(1)(b) of the BSCRA Act, the Tribunal declines to make a home building work order as defined by the BSCRA Act. Accordingly, there being no utility in this proceedings, the Tribunal dismisses the consolidated application.




Orders

74 The Tribunal makes the following orders.




CC 865 of 2013


    1. The current respondents in this proceeding are Yaran Pty Ltd, Mr Fayar Gorjy and Mr Shahyar Gorgy and the proceeding is amended to correctly refer to each of the above as the respondents.

    2. The applicant's application to hear this proceeding with any other matter (save CC 866 of 2013, CC 867 of 2013 and CC 864 of 2013) is refused.

    3. This proceeding is to be heard with CC 866 of 2013, CC 867 of 2013 and CC 864 of 2013.

    4. Pursuant to s 43(1)(b) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), the Tribunal declines to make a home building work order.

    5. The application is dismissed.





CC 866 of 2013

    1. The current respondents in this proceeding are Yaran Pty Ltd, Mr Fayar Gorjy and Mr Shahyar Gorgy and the proceeding is amended to correctly refer to each of the above as the respondents.

    2. The applicant's application to hear this proceeding with any other matter (save CC 865 of 2013, CC 867 of 2013 and CC 864 of 2013) is refused.

    3. This proceeding is to be heard with CC 865 of 2013, CC 867 of 2013 and CC 864 of 2013.

    4. Pursuant to s 43(1)(b) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), the Tribunal declines to make a home building work order.

    5. The application is dismissed.





CC 867 of 2013

    1. The current respondents in this proceeding are Yaran Pty Ltd, Mr Fayar Gorjy and Mr Shahyar Gorgy and the proceeding is amended to correctly refer to each of the above as the respondents.

    2. The applicant's application to hear this proceeding with any other matter (save CC 865 of 2013, CC 866 of 2013 and CC 864 of 2013) is refused.

    3. This proceeding is to be heard with CC 865 of 2013, CC 866 of 2013 and CC 864 of 2013.

    4. Pursuant to s 43(1)(b) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), the Tribunal declines to make a home building work order.

    5. The application is dismissed.





CC 864 of 2013

    1. The current respondents in this proceeding are Yaran Pty Ltd, Mr Fayar Gorjy and Mr Shahyar Gorgy and the proceeding is amended to correctly refer to each of the above as the respondents.

    2. The applicant's application to hear this proceeding with any other matter (save CC 865 of 2013, CC 866 of 2013 and CC 867 of 2013) is refused.

    3. This proceeding is to be heard with CC 865 of 2013, CC 866 of 2013 and CC 867 of 2013.

    4. Pursuant to s 43(1)(b) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), the Tribunal declines to make a home building work order.

    5. The application is dismissed.



    I certify that this and the preceding [74] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

    ___________________________________

    MS N OWEN-CONWAY, MEMBER

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WALDRON and AFRA CONSTRUCTION PTY LTD [2013] WASAT 207