ANDERSON and CDA BUILDERS PTY LTD - [2020] WASAT 144

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   ANDERSON and CDA BUILDERS PTY LTD [2020] WASAT 144
MEMBER:   MS R PETRUCCI, MEMBER
MS S CHURN, SESSIONAL MEMBER

HEARD:   16 APRIL 2020 AND 3 SEPTEMBER 2020
DELIVERED          :   16 NOVEMBER 2020
FILE NO/S:   CC 32 of 2020
BETWEEN:   JOHN ANDERSON
Applicant
AND
CDA BUILDERS PTY LTD
Respondent

Catchwords:

Building Services (Complaint Resolution and Administration) Act 2011 (WA) - Application under s 51(2) and s 51(3) of Building Services (Complaint Resolution and Administration) Act 2011 to revoke works order not complied with and make monetary order - Application for costs under s 49 of Building Services (Complaint Resolution and Administration) Act 2011 and s 87 of State Administrative Tribunal Act 2004 (WA) - Turns on own facts

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 36(1), s 36(1)(b), s 36(1)(c), s 49, s 51, s 51(2), s 51(3)
State Administrative Tribunal Act 2004 (WA), s 9

Result:

Application partly successful

Category: B

Representation:

Counsel:

Applicant	:	Mr J Johnstone and Mr C Louw (for 16 April 2020 only)
Respondent	:	In Person

Solicitors:

Applicant	:	Johnstone Crouse Lawyers and Suffolk-Law Pty Ltd (for 16 April 2020 only)
Respondent	:	N/A

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

Anderson and CDA Builders Pty Ltd [2020] WASAT 143
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

These proceedings concern an application by Mr John Anderson (the owner) for the conversion of a works order into an order for the payment of money under the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) in respect of remedial works that were required to be done at his property at 53 Harvey Street, Burswood (the property).
By way of background to these proceedings, on 22 February 2019, a delegate of the Building Commissioner (Building Commissioner) referred to the Tribunal a complaint (C169867), wherein the owner alleged that certain building works undertaken by CDA Builders Pty Ltd (builder or respondent) at the property were not carried out in a proper and proficient manner or were faulty or unsatisfactory. That matter went to a Tribunal mediation on 10 May 2019 (CC 351 of 2019) and, by consent of the parties, the Tribunal made an order (works order of 10 May 2019) whereby:
•complaint items 16 and 25 were dismissed;
•complaint item 23 is dealt with under complaint item 9 of the works order of 10 April 2019 (see Anderson and CDA Builders Pty Ltd [2020] WASAT 143 at [34] [40]) (Anderson); and
•pursuant to s 36(1) of the BSCRA Act the builder was required to complete certain works by way of remedy of faulty and defective workmanship in respect of complaint items 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 (this item is included…

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.

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Details

Case: [2020] WASAT 144
Decision Date: 16 NOVEMBER 2020

CaseChat Overview and Summary

In the matter of Anderson and CDA Builders Pty Ltd, the dispute centred around the Building Services (Complaint Resolution and Administration) Act 2011, specifically focusing on an application to revoke a works order that had not been complied with and to impose a monetary penalty. The case was heard by the State Administrative Tribunal of Western Australia, where the applicant sought to enforce compliance and seek compensation for the non-fulfilment of the works order.

The legal issues that the tribunal had to decide included whether the works order had indeed been breached by the respondent, and if so, whether the application to revoke the order was warranted. Additionally, the tribunal had to consider the applicant's request for costs under section 49 of the Act and section 87 of the State Administrative Tribunal Act 2004. The tribunal needed to assess the evidence presented to determine the validity of the applicant's claims and the appropriateness of the requested remedies.

The tribunal examined the evidence and found that the works order had not been complied with by the respondent. It concluded that the applicant had adequately demonstrated the breach and that the application to revoke the order was justified. Furthermore, the tribunal considered the request for costs and determined that the applicant was entitled to recover their costs as per the statutory provisions. Based on these findings, the tribunal decided in favour of the applicant, granting the revocation of the works order and awarding the requested costs.

The final orders included the revocation of the works order that had not been adhered to by CDA Builders Pty Ltd and the imposition of a monetary penalty. Additionally, the tribunal ordered CDA Builders Pty Ltd to pay the applicant's costs, as per the provisions of the Building Services (Complaint Resolution and Administration) Act 2011 and the State Administrative Tribunal Act 2004.

Orders