AMATO and PLUNKETT HOMES (1903) PTY LTD
[2023] WASAT 10
•24 FEBRUARY 2023
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION: AMATO and PLUNKETT HOMES (1903) PTY LTD [2023] WASAT 10
MEMBER: MR D AITKEN, SENIOR MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 24 FEBRUARY 2023
FILE NO/S: CC 556 of 2022
BETWEEN: ELIO AMATO
Applicant
AND
PLUNKETT HOMES (1903) PTY LTD
Respondent
Catchwords:
Whether s 13(1) of the Limitation Act 2005 (WA) applies to a proceeding under s 51(2) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) - Whether a building remedy order creates a cause of action - Whether s 51(2) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) confers a right to apply for a building remedy work order to be revoked and replaced with a building remedy monetary order
Legislation:
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 36(1), s 36(1)(a), s 36(1)(b), s 36(1)(c), s 38, s 38(1)(a), s 51, s 51(2)
Limitation Act 2005 (WA), s 13, s 13(1)
State Administrative Tribunal Act 2004 (WA), s 43, s 47, s 60(2), s 82(1)
State Administrative Tribunal Regulations 2004 (WA), reg 11A, Sch 7
Result:
Strike out application dismissed
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | Mr A Buchan |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | Hotchkin Hanly |
Case(s) referred to in decision(s):
Guthrie v Spence (2009) 78 NSWLR 225
Wyloo Metals Pty Ltd v Quarry Park Pty Ltd [2021] WASC 356
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 14 April 2016 the Tribunal made a building remedy order (2016 work order) pursuant to s 36(1)(a) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) requiring the respondent, Plunkett Homes (1903) Pty Ltd (Plunkett Homes) to remedy parts of the building work which it had carried out at the property of the applicant, Mr Elio Amato (Mr Amato) at 62 Albert Street, North Perth.
Paragraphs 2, 3, 5 and 6 of the 2016 work order required Plunkett Homes to remediate the storm water system, the balcony door, the northern boundary wall, and the roof insulation in the manner specified in the order.
Mr Amato is seeking that the Tribunal, pursuant to s 51(2) of the BSCRA Act, revoke each of those parts of the 2016 work order and replace them with a monetary order under s 36(1)(b) of the BSCRA Act, on the basis that Plunkett Homes has not complied with the order.
Mr Amato sent a letter to the Tribunal by email on 29 March 2022 requesting the Tribunal to accept the letter as his application to the Tribunal under s 51 of the BSCRA Act.
The Tribunal informed Mr Amato by email on 10 May 2022 that he needed to lodge an application via the eCourts Portal, which he did on the same date.
Strike out application
Plunkett Homes has made an interim application (strike out application) under s 47 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) for an order that the parts of the proceeding relating to paragraphs 2 and 3 of the 2016 work order be struck out as being time barred by the operation of s 13(1) of the Limitation Act 2005 (WA) (Limitation Act)
Pursuant to orders made by the Tribunal, Plunkett Homes and Mr Amato have filed with the Tribunal and given to each other written submissions in respect of the strike out application and I have determined the strike out application on the documents pursuant to s 60(2) of the SAT Act.
For the reasons which follow I have decided to dismiss the strike out application.
Plunkett Home's contentions
Plunkett Homes contends that because paragraphs 2 and 3 of the 2016 work order did not specify any time for performance, then pursuant to s 82(1) of the SAT Act, those parts of the 2016 work order were effective immediately on 14 April 2016.
Plunkett Homes refers to s 13(1) of the Limitation Act, which provides that an action on any cause of action cannot be commenced if 6 years have elapsed since the cause of action accrued and contends that Mr Amato was required to commence what Plunkett Homes refers to as his application under s 51(2) of the BSCRA Act by no later than 16 April 2022, due to the operation of s 13(1) of the Limitation Act.
Plunkett Homes contends that Mr Amato commenced his application under s 51(2) of the BSCRA Act on 20 May 2022 and therefore the parts of his application relating to paragraphs 2 and 3 of the 2016 work order cannot be considered by the Tribunal.
Plunkett Homes says that if the Tribunal finds that s 13(1) of the Limitation Act does not apply to what it describes as an 'enforcement application' under s 51(2) of the BSCRA Act, a party with an allegedly unfulfilled building remedy order could sit on that order for an indefinite period and then seek to enforce it against the respondent in that matter whenever it is convenient for that party.
Plunkett Homes says that this could prejudice a respondent in several ways, including facing the prospect of being subject to an indefinite threat of being sued and the risk of evidence being lost.
Mr Amato's contentions
Mr Amato contends that the strike out action is without merit because the limitation period contained in s 13 of the Limitation Act does not apply to proceedings in the Tribunal, or alternatively, it does not apply to the invocation of s 51 of the BSCRA Act.
Consideration
Section 13(1) of the Limitation Act provides that an action on any cause of action cannot be commenced if 6 years have elapsed since the cause of action accrued.
A cause of action is a right to sue. This is clear from the following two decisions, in which the meaning of the term 'cause of action' in limitation of actions legislation was considered.
The first, which is referred to in Mr Amato's submissions, is the Western Australian Supreme Court decision in Wyloo Metals Pty Ltd v Quarry Park Pty Ltd [2021] WASC 356 at [137(b)] where Tottle J refers to a 'cause of action' being construed broadly as 'the fact or combination of facts which gives rise to the right to sue'.
The second is the New South Wales Court of Appeal decision in Guthrie v Spence (2009) 78 NSWLR 225 at [138] where Campbell JA (with whom Baston JA and Handley AJA agreed) states that a 'cause of action' is 'a particular right to sue that a particular person has'.
When a building remedy order is made by the Tribunal, that is the result of the Tribunal having dealt with a building service complaint pursuant to s 38 and s 36(1) of the BSCRA Act. The building remedy order does not create a cause of action; it is the remedy given to the person who made the building service complaint, if the Tribunal is satisfied under s 38(1)(a) of the BSCRA Act that the regulated building service which is the subject of the building service complaint has not been carried out in a proper and proficient manner or is faulty or unsatisfactory.
I will refer to a building remedy order made under s 36(1)(a) of the BSCRA Act as a work order and a building remedy order made under s 36(1)(b) or s 36(1)(c) as a monetary order.
Section 51(2) of the BSCRA Act does not confer any right on a person who is a party to a work order to apply for that work order to be replaced by a monetary order.
Section 51(2) of the BSCRA Act simply gives the responsible adjudicator, being either the Tribunal or the Building Commissioner as the case may be, the power to revoke a work order in whole or in part and replace it with a monetary order if the responsible adjudicator is satisfied that the work order has not been complied with or has been complied with in part only.
My understanding of the way in which the Building Commissioner decides whether to exercise the discretionary power under s 51(2) of the BSCRA Act is that the Building Commissioner considers this when correspondence is received from a complainant claiming that a work order made by the Building Commissioner has not been complied with.
From the commencement of the BSCRA Act in 2011, the Tribunal's process was initially like that of the Building Commissioner in situations where the Tribunal had made a work order.
However, the Tribunal subsequently established a process in which an applicant in whose favour a work order has been made lodges a socalled application with the Tribunal if they wish the Tribunal to consider making a monetary order under s 51(2) of the BSCRA Act.
The reason for establishing this process was solely for statistical and case management purposes. I know this because it was me and Senior Member Wallace (as Her Honour then was) who established this process.
The fact that, for statistical and case management purposes, the Tribunal has established a process for parties to make a so-called application does not mean that s 51(2) of the BSCRA Act gives a party a right to make any application.
There is no fee payable for making a so-called s 51(2) application to the Tribunal.
However, there is no mention of s 51(2) of the BSCRA Act in Sch 7 of the State Administrative Tribunal Regulations 2004 (WA), which sets out the applications to the Tribunal for which no fee is payable for the purposes of reg 11A of those regulations, made pursuant to s 43 of the SAT Act.
This illustrates that s 51(2) of the BSCRA Act does not provide for an application to be made to the Tribunal regarding the exercise of the power given to the Tribunal under this provision.
If the Tribunal exercises its power under s 51(2) of the BSCRA Act, this does not give rise to a new proceeding; it occurs as a continuation of the proceeding which was commenced by the referral of the building service complaint to the Tribunal by the Building Commissioner, which resulted in the work order being made by the Tribunal.
Conclusion
A work order does not create a cause of action and s 51(2) of the BSCRA Act does not give a party a right to make an application. It simply gives the responsible adjudicator the power to exercise its discretion to revoke a work order, in whole or in part, and to replace it with a monetary order.
For these reasons I do not accept Plunkett Home's contention that paragraphs 2 and 3 of the 2016 work order are time barred from being revoked and replaced with a monetary order under s 51(2) of the BSCRA Act by the operation of s 13(1) of the Limitation Act.
Consequently, I will make an order that the strike out application is dismissed, and list the proceeding for a further directions hearing to programme it to a final hearing, for the Tribunal to decide whether it should exercise its discretion to revoke the 2016 work order and replace it with a monetary order.
The delay in Mr Amato seeking the consideration by the Tribunal of whether to revoke the 2016 work order and make a monetary order under s 51(2) of the BSCRA Act, will no doubt be a factor in this consideration.
Orders
The Tribunal orders:
1.The interim application of the respondent dated 19 July 2022 is dismissed.
2.The proceeding will be listed for a directions hearing, to programme it to a final hearing.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR D AITKEN, SENIOR MEMBER
24 FEBRUARY 2023
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