AMPEZZO PTY LTD and FRANKEN

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

ACT: BUILDERS' REGISTRATION ACT 1939 (WA)

CITATION:   AMPEZZO PTY LTD and FRANKEN [2009] WASAT 109

MEMBER:   MR C RAYMOND (SENIOR MEMBER)

HEARD:   10 NOVEMBER 2008

DELIVERED          :   2 JUNE 2009

FILE NO/S:   CC 1929 of 2007

BETWEEN:   AMPEZZO PTY LTD

Applicant

AND

BRADLEY STEPHEN FRANKEN
ELAINE FRANKEN
Respondents

Catchwords:

Builders' Registration Act 1939 - Application for review of decision of Building Disputes Tribunal - Effect of Building Disputes Tribunal awarding compensation in respect of claims not referred to in preliminary notice - Whether Building Disputes Tribunal has power to amend claim - Whether claim amended - Consequences in relation to costs ordered

Legislation:

Builders' Registration Act 1939 (WA), s 12A, s 36(1), s 38(4)
Federal Court of Australia Act 1976 (Cth), s 32(1)
Home Building Contracts Act 1991 (WA)
State Administrative Tribunal Act 2004 (WA), s 87(1), s 87(3)

Result:

Application for review dismissed

Category:    B

Representation:

Counsel:

Applicant:     Mr S Walker

Respondents                 :     Mr W Vogt

Solicitors:

Applicant:     Western Legal

Respondents                 :     Vogt Graham Lawyers

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

Clintway Pty Ltd and The Owners of Strata Plan 21805 [2008] WASAT 294

Commodore Homes Pty Ltd and Deegan [2007] WASAT 45

DJL and The Central Authority (2000) 201 CLR 226

Jackson v Sterling Industries Ltd (1987) 162 CLR 612

Miles v Palm Bridge Pty Ltd [2001] WASC 42

Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Re Scott and Commissioner of Superannuation (1986) 9 ALD 491

Sparks v Bellotti (1981) WAR 65

Tangent Nominees Pty Ltd and Edwards [2006] WASAT 243

The Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. The State Administrative Tribunal reviewed a decision of the Building Disputes Tribunal as reflected in Order to Pay No 87/2007‑08 made on 12 October 2007.  The leave granted to review the decision was limited to the consideration of whether or not the Building Disputes Tribunal lacked jurisdiction because of non‑compliance with the requirements to give a preliminary notice before lodging a complaint, and if so, whether the costs order should be set aside and substituted with the Tribunal's own decision on costs.

2. The Tribunal confirmed its finding made during the leave application that the Building Disputes Tribunal's decision was clearly wrong insofar as it found that there had been compliance with the preliminary notice requirements of the Builders' Registration Act 1939 (WA) in circumstances in which the notice relied upon was served on the applicant builder some five months after the complaint had been lodged with the Building Disputes Tribunal. However, on review, and on an analysis of the facts, the Tribunal found that a building report provided by the respondent owners to the applicant builder some two weeks prior to lodging the complaint constituted substantial compliance with the preliminary notice requirements.