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
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.
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.
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- Case
- [2009] WASAT 109
- Decision Date
CaseChat Overview and Summary
The court delved into the statutory framework provided by the Builders' Registration Act 1939 to examine the extent of the Building Disputes Tribunal's authority. It was established that the Tribunal had the capacity to adjust a claim, which led to a consideration of the consequences of such an amendment, particularly in relation to the costs that were ordered. The court concluded that the Tribunal's decision to award compensation, despite the claims not being explicitly mentioned in the preliminary notice, was within its statutory powers. Consequently, the application for review was dismissed.
The court's decision was grounded in a thorough analysis of the statutory provisions and the procedural history of the case. It found that the Tribunal's actions were not only permissible but also aligned with the objectives of the legislation, which is to ensure fair and just outcomes in building disputes. The court's ruling upheld the Tribunal's decision, affirming that the Tribunal had the authority to award compensation even if the claims were not specified in the preliminary notice. The final orders reflected this decision, dismissing the application for review and upholding the Tribunal's Order to Pay No 87/2007-08.
Orders
Orders of the court
1. The application for review of the decision of the Building Disputes Tribunal reflected in Order to Pay No 87/2007-08 is dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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