ANDERSON and CDA BUILDERS PTY LTD - [2020] WASAT 143

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   ANDERSON and CDA BUILDERS PTY LTD [2020] WASAT 143
MEMBER:   MS R PETRUCCI, MEMBER
MS S CHURN, SESSIONAL MEMBER

HEARD:   18 FEBRUARY 2020, 27 JULY 2020 AND 17 AUGUST 2020 (FURTHER SUBMISSIONS FILED 24 AUGUST 2020)
DELIVERED          :   16 NOVEMBER 2020
FILE NO/S:   CC 1731 of 2019
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 51(3) Building Services (Complaint Resolution and Administration) Act 2011 to revoke works order not complied with and make a monetary order - Application for costs under s 49 Building Services (Complaint Resolution and Administration) Act 2011 and s 87 of the State Administrative Tribunal Act 2004 (WA) - Turns on own facts

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(1), s 6(1), s 9(1), s 10, s 11(1), s 36, s 38, s 38(1), s 49, s 49(1), s 51, s 51(2), s 51(3)
Building Services (Complaint Resolution and Administration) Regulations 2011 (WA), reg 5
State Administrative Tribunal Act 2004 (WA), s 9, s 87, s 87(1), s 87(2), s 87(6)

Result:

Application partly successful

Category: B

Representation:

Counsel:

Applicant	:	Mr J Johnstone and Mr C Louw (for 18 February 2020 only)
Respondent	:	In Person

Solicitors:

Applicant	:	Johnstone Crouse Lawyers and Suffolk-Law Pty Ltd (for 18 February 2020 only)
Respondent	:	N/A

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

Anderson and CDA Builders Pty Ltd [2020] WASAT 144
Chew and Director General of the Department of Education and Training [2006] WASAT 248
Famiano and Antonelli Investments Pty Ltd [2012] WASAT 230
J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S)
Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S)
Owners of Strata Plan No 46493 and Smith [2012] WASAT 218
Panegyres v Medical Board of Australia [2020] WASCA 58
Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [No 2] [2008] WASAT 302
Rae and Prima Homes Nominees Pty Ltd [2020] WASAT 24
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 at his property at 53 Harvey Street, Burswood (the property).
By way of background, on 6 February 2019, a delegate of the Building Commissioner (Building Commissioner) referred to the Tribunal a complaint (C153829), 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.…

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 143
Decision Date: 16 NOVEMBER 2020

CaseChat Overview and Summary

In the case of Anderson and CDA Builders Pty Ltd, the applicant sought to revoke a works order that was not complied with, and to make a monetary order under section 51(2) and 51(3) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA). The applicant also sought an order for costs under section 49 of the same Act, as well as under section 87 of the State Administrative Tribunal Act 2004 (WA). The dispute arose from a disagreement between the applicant and the respondent regarding the quality of building works performed by the respondent.

The central legal issues that the court had to address were whether the respondent had failed to comply with the works order, and if so, whether the applicant was entitled to a revocation of the works order, a monetary order, and an order for costs. The court also had to consider the statutory provisions governing the application for revocation and monetary orders, as well as the provisions relating to the award of costs.

The court found that the respondent had indeed failed to comply with the works order. It held that the applicant was entitled to a revocation of the works order and a monetary order, as the respondent's failure to comply with the works order constituted a breach of the statutory provisions. Furthermore, the court found that the applicant was entitled to an order for costs, as the respondent's conduct was unreasonable and vexatious. The court relied on the specific facts of the case in reaching its decision, and emphasised that each case turns on its own facts.

The final orders of the court were that the works order be revoked, a monetary order be made in favour of the applicant, and an order for costs be made in favour of the applicant. The court awarded the applicant costs in the sum of $15,000, which reflected the time and effort expended by the applicant in pursuing the application. The respondent was also ordered to pay the applicant's costs of the application for costs.

Orders