APPLEBY and NU-WAY GLASS & GLAZING PTY LTD - [2022] WASAT 75

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   APPLEBY and NU-WAY GLASS & GLAZING PTY LTD [2022] WASAT 75
MEMBER:   MS C CONLEY, MEMBER
MR D M FRASER, SESSIONAL MEMBER

HEARD:   31 MAY 2022
DELIVERED          :   29 AUGUST 2022
FILE NO/S:   CC 1307 of 2021
CC 1783 of 2021

BETWEEN: DARRIN APPLEBY
NANCY APPLEBY
Applicants
AND
NU-WAY GLASS & GLAZING PTY LTD
Respondent

Catchwords:

Construction of dwelling by applicant owner-builder - Windows and doors supplied and installed by respondent - Complaints by applicants in respect of windows and doors - Determination of preliminary issue as to whether Tribunal has jurisdiction - Meaning of 'carried out' a regulated building service - Tribunal does not have jurisdiction because respondent did not carry out regulated building service

Legislation:

Builders Registration Act 1939 (WA), s 12A
Building Act 2011 (WA), s 3, s 37(1)
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s3, s 5, s 11(5), s 36, s 36(1), s 36(1)(a), s 36(1)(b), s 36(1)(c), s 37(1), s 38, s38(1)(a), s 51, s 55
Building Services (Complaint Resolution and Administration) Regulations 2011 (WA), reg 4A, reg 4, reg 5A, reg 5
Home Building Contracts Act 1991 (WA), s 3
Home Building Contracts Regulations 1992 (WA), reg 2A

Result:

Preliminary issue determined
Applications dismissed

Category: B

Representation:

Counsel:

Applicants	:	Mr A Prime
Respondent	:	Mr J Durczak and Mr D Malarouski (acting as Agents)

Solicitors:

Applicants	:	Anthony Prime Legal Services
Respondent	:	N/A

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

Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16
Gillett and Anor and Jamusen Enterprises Pty Ltd (Decision O.18207) [2008] WABDT 42 (3 December 2008)
Hawke and Ennis [2018] WASAT 118
Hopper and Buckeridge Nominees Pty Ltd T/As Affinity Windows (Decision O.20106) [2011] WABDT 29 (6 April 2011)
Lee and Holmes [2020] WASAT 108
Owners of Strata Plan 65323 and Palazzo Homes Pty Ltd [2020] WASAT 57
Shami and Teo [2017] WASAT 73
Teo and Parkin [2018] WASAT 7
The Owners of Richmond Quarter Strata Plan 66227 and Pindan Contracting Pty Ltd [2020] WASAT 103

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 9 December 2014 the applicants were granted an owner-builder approval by the Building Commissioner for the construction of a new dwelling at Lot 201/118 Warnbro Beach Road in Waikiki (Dwelling).[1]
[1] Exhibit 1 at page 213; Exhibit 2 at page 830.
On 22 December 2014, a building permit was issued under the Building Act 2011 (WA) (Building Act) to build the Dwelling with the building contractor identified as 'Mr D T Appleby' (Mr Appleby).[2] Mr Appleby is one of the applicants.
[2] Exhibit 1 at pages 221-212; Exhibit 2 at pages 828-829.
The applicants engaged the respondent to supply and install all external windows, doors and associated glass work to the Dwelling (windows and doors). The contract price was $100,074.40.[3]
[3] Exhibit 1 at pages 157-161; Exhibit 2 at pages 775-776.
The respondent supplied and installed the windows and doors during the construction of the Dwelling in 2015 and 2016.
The applicants took occupation of the Dwelling on or about 14 April 2016.
The applicants made two complaints to the Building Commission under the Building Services (Complaint Resolution and Administration) Act2011 (WA) (BSCRA Act) in respect of the windows and doors:
a)the first complaint was made on 28 May 2019; and
b)the second complaint was made on 19 September 2021.
On 25 June 2020 a building remedy order (O2019-366) was made against the respondent in respect of the first complaint. The applicants then complained that the respondent had not complied with the building remedy order. The first complaint was transferred to the Tribunal by the Building Commissioner on 17 August 2021 and on 28 September 2021 the Tribunal consented to the transfer of the proceeding in accordance with s 55 of the BSCRA Act (CC 1307-2021).
The second complaint was referred to the Tribunal by the Building Commissioner on 2 November 2021 under s 11(1)(d) of the BSCRA Act for the complaint to be dealt with under the BSCRA Act (CC 1783 of 2021).[4]
The preliminary issue for determination
[4] Exhibit 2 at pages 1-3 and 329.
At a directions hearing held in the Tribunal, Senior Member Aitken queried whether the Tribunal had jurisdiction to deal with the two complaints (CC 1307 of 2021 and CC 1783 of 2021) in light of the decision in Shami and Teo [2017] WASAT 73 (Shami).[5]
[5] Exhibit 1 at pages 323-343; Exhibit 2 at pages 946-967.
The preliminary issue for determination in each proceeding is whether the respondent is the person who carried out the regulated building service the subject of the complaints for the purposes of the BSCRA Act.

Proceedings in the Tribunal

On 21 April 2022 the Tribunal ordered that the preliminary issue in respect of each proceeding be heard and determined together and that evidence in one proceeding be evidence in the other proceeding.
On 31 May 2022 a hearing was held in the Tribunal in relation to the preliminary issue in each proceeding (Hearing). Mr Appleby gave evidence on behalf of the applicants and Mr Jarek Durczak and Mr Darius Malarouski gave evidence on behalf of the Respondent. Mr Durczak is a manager, and Mr Malarouski an assistant manager, of the respondent.
The applicants filed written submissions with the Tribunal.[6] Those submissions may be summarised as follows:
[6] Exhibit 2 at pages 936-942.
a)the work performed by the respondent is a regulated building service because it is home building work carried out by a person under a contract or arrangement for gain or reward;
b)the respondent was engaged to carry out part of the work of constructing the Dwelling, namely the supply and installation of the windows and doors;
c)home building work can include a contract for the carrying out of part of the works of the construction of the entire edifice, such as a contract for the supply and installation of external glass to a property. That specific contract, as in this matter, is an entire contract for the carrying out of the totality of a particular regulated building service, namely the home building work (pursuant to a contract) for the supply and installation of the windows and doors;
d)the following actions are consistent with the respondent being responsible for the carrying out of the regulated building service, namely the supply and installation of the windows and doors at the Dwelling:
i)the respondent quoted and contracted with the applicants for the supply and installation of the windows and doors;
ii)the respondent purchased or called for the required supply of goods for the construction of the windows and doors;
iii)the respondent supervised the performance of the supply of goods and services on the site;
iv)the respondent paid for the goods and services supplied;
v)the respondent paid for the cost of the goods and services incurred in the construction;
vi)the respondent rendered invoices to the applicants for those costs;
vii)the respondent receipted the funds paid by the applicants; and
e)the preliminary issue raised should be dismissed on the basis that the complaints have properly been made under s 5 of the BSCRA Act.
Mr Durczak also filed written submissions with the Tribunal on behalf of the respondent. Those submissions may be summarised as follows:
a)the respondent is not a building company and does not have a building licence;
b)the respondent was only engaged to supply and install doors and windows as per the applicants' specifications;
c)the respondent was not part of the design process; and
d)Mr Durczak visited the site only on a couple of occasions when extra manpower was required to assist with unloading and shifting heavy items.

The evidence in the Tribunal

Each of the parties filed various documents which were compiled into two hearing books prepared by the Tribunal and taken into evidence as Exhibit 1 and Exhibit 2. Exhibit 1 related to CC 1307 of 2021 and Exhibit 2 related to CC 1783 of 2021.
Mr Appleby gave evidence at the Hearing. His evidence may be summarised as follows:
a)a building permit was issued to the applicants;
b)the price for the construction of the Dwelling set out in the permit included the cost of the installation of the external doors and windows;
c)he went to various suppliers to get quotes;
d)he supplied the plans to Mr Durczak and various designs went back and forth between them over a period of months;
e)he made multiple visits to, and had discussions with, Mr Durczak who provided a number of quotes;
f)he paid a deposit to the respondent for the supply and installation of windows and doors (all external openings) for the Dwelling;
g)he paid over $100,000 to the respondent for the work;
h)the drawings and specifications for the windows and doors were sent to him;
i)the product was recommended by the respondent but the applicants had the final say about the colour of the product;
j)no other parties were engaged in respect of the external windows and doors;
k)when the Dwelling was at a level of readiness, the respondent came to install and fit the windows and doors;
l)he was asked by the respondent to arrange a lifting device to lift the doors and windows;
m)the windows and doors were installed;
n)he observed Mr Durczak on site on multiple occasions supporting his team and giving them direction and checking the installations;
o)the price included delivery and installation;
p)he made a complaint to the Building Commissioner and a building remedy order was made but the respondent was not forthcoming in coming to carry out the repairs;
q)he is not a registered builder and has no experience in building;
r)an architect drew up the plans;
s)he and his wife constructed the house;
t)he had organised a building supervisor to assist but the building supervisor had a medical condition and could not help him and he was not replaced;
u)various contractors had responsibilities to manage their teams - the bricklaying, concreting, electrical, plumbing, roof carpenters, kitchen, flooring, timber, and doors and windows (internal and external);
v)he organised the different trades and called in each team;
w)on any given day, a team leader managed the team and the work;
x)he paid the contractors once the scope of work was completed except for the respondent who was paid in advance;
y)he checked to see if all the doors and windows had been installed and whether there were any cracks in the frames, but he did not inspect the work because building is not his expertise;
z)he did not provide any of the materials for the respondent; and
aa)he provided the lifting device for use by the respondent's team out of goodwill.
We accept the evidence of Mr Appleby because his evidence was not disputed by the representatives of the respondent in that he was not cross-examined.
Mr Durczak gave evidence at the Hearing. His evidence may be summarised as follows:
a)in most cases a window schedule is prepared by the architect, but the architect did not prepare the window schedule in respect of the Dwelling;
b)he read the plans and discussed every single opening with Mr Appleby;
c)he provided revised quotes until Mr Appleby was happy;
d)he did not visit the site prior to the installation;
e)Mr Appleby organised for him to come to the site;
f)the respondent is not a building company and does not have a licence to operate;
g)the respondent is basically a reseller – it does not keep stock, but orders windows for a project and then installs them;
h)he had no say about where the doors and windows were placed;
i)Mr Appleby chose the windows, the colour and the glass;
j)the windows were assembled in Poland;
k)the doors and windows were installed over three months;
l)Mr Appleby told the respondent when he was ready for it to do the work.
m)he attended the site to assist the installers with two doors because extra manpower was required;
n)he usually does not go on site unless asked to come;
o)he supplied the windows;
p)Mr Appleby asked him to come to the site after, but not during the installation; and
q)he needed to ensure compliance with the Australian standards not from a building side but only from the glazing side.
We accept the evidence of Mr Durczak because it was not contested.
Mr Malarouski gave evidence that he assisted Mr Durczak. He gave evidence that the respondent had no control over the building specifications and that the respondent quotes, supplies and installs windows. He also gave evidence that he was not involved in the project.
We accept the evidence of Mr Malarouski because it was not contested.
For the purposes of the determination of the preliminary issue, we make the following findings of fact:
a)the applicants commenced discussions with Mr Durczak about the supply and installation of the windows and doors in 2014;[7]
[7] Exhibit 1 at pages 192-192; Exhibit 2 at pages 809-819.
b)Mr Appleby provided the respondent with plans and drawings of the Dwelling;[8]
[8] Exhibit 1 at pages 163-173; Exhibit 2 at pages 780-790.
c)Mr Durczak read the plans and drawings and discussed every single opening with Mr Appleby;
d)there were ongoing discussions between Mr Appleby and Mr Durczak about the windows and doors and revisions of quotes were provided to Mr Appleby by Mr Durczak;
e)Mr Durczak prepared drawings and specifications for the applicants for the windows and doors for the Dwelling based on those discussions;[9]
f)on 22 December 2015 a building permit was issued to Mr Appleby to build the Dwelling;[10]
g)after the building permit was issued, Mr Appleby engaged the respondent to supply and install the windows and doors for the Dwelling once he was happy with a revised quote;[11]
h)the windows and doors were installed by the respondent during the construction of the Dwelling;
i)Mr Appleby organised for the different teams engaged in the construction of the Dwelling to attend the site, including the installers of the respondent;
j)Mr Durczak did not attend the site prior to the installation of the windows and doors, but did attend the site to assist the installers with the doors and when requested to do so by Mr Appleby;
k)Mr Durczak ensured that the windows and doors complied with Australian standards from a glazing perspective; and
l)Mr Appleby checked to see if the windows and doors had been installed and whether there were any cracks in the frames, but he did not inspect the work.

The legislative framework

[9] Exhibit 1 at pages 178-191; Exhibit 2 at pages 795-808.

[10] Exhibit 1 at pages 211-212; Exhibit 2 at pages 828-829.

[11] Exhibit 1 at pages 157-158; Exhibit 2 at pages 775-776.

The long title to the BSCRA Act says that it is an Act to provide for, inter alia, a system for dealing with complaints about building services and home building work contract matters.
Under s 5 of the BSCRA Act, subject to the Building Services (Complaint Resolution and Administration) Regulations 2011 (WA) (BSCRA Regulations), a person may make a complaint to the Building Commissioner about a regulated building service not being carried out in a proper and proficient manner or being faulty or unsatisfactory. A building service complaint about the carrying out of a regulated building service may only be made by a person whose interests are being, or have been, adversely affected by the carrying out of the regulated building service.[12]
[12] BSCRA Regulations, reg 5.
The term 'regulated building service'[13] means any of the following:
[13] Defined in s 3 of the BSCRA Act.
(a)a building service carried out by a registered building service provider or an approved owner-builder;
(b)home building work that is -
(i)carried out by a person for another person under a home building work contract or other contract or arrangement for gain or reward; and
(ii)not carried out for a person who is in turn obliged to perform the work under another contract;
(c)any other service or work prescribed for the purposes of this definition[;][14]
[14] See reg 4A, reg 4 and reg 5A of the BSCRA Regulations for the services and work prescribed for the purpose of paragraph (c) of the definition of the term 'regulated building service'.
The term 'building service' means, relevantly for present purposes, 'building work as defined in the Building Act 2011 section 3'.
The term 'building work' is further defined in s 3 of the Building Act and means, relevantly for present purposes, 'the construction, erection, assembly or placement of a building or an incidental structure'.
The term 'building' is defined in s 3 of the Building Act and includes a part of a building.
The term 'home building work' means:
the whole or part of the work of
(a)constructing or re-constructing a dwelling including an existing dwelling and/or strata/community title dwelling; or
(b)placing a dwelling on land; or
(c)altering, improving or repairing a dwelling, including a strata/community title dwelling; or
(d)constructing or carrying out any associated work in connection with -
(i)any work referred to in paragraph (a) or (b); or
(ii)an existing dwelling, including a strata/community title dwelling[.][15]
[15] See the definition of 'home building work' in s 3 of the BSCRA Act and s 3 of the Home Building Contracts Act 1991 (WA) (HBC Act) and
The term 'home building work contract' means:
a contract between a builder and an owner for the performance by the builder of home building work, but does not include -
(a)a cost plus contract;
(b)a contract for the performance of home building work -
(i)for a builder who is in turn obliged to perform the work under another contract; or
(ii)if the amount stated in the contract as being payable under the contract for the work is $6 000, or such other amount as is prescribed, or less; or
(iii)if the amount stated in the contract as being payable under the contract for the work is $200 000, or such other amount as is prescribed, or more[.] [16]
[16] See the definition of 'home building work contract' in s 3 of the BSCRA Act and s 3 of the HBC Act. See also the prescribed amounts in the Home Building Contracts Regulations 1992 (WA), reg 2A.
The term 'builder' means 'a person who carries on, or 2 or more persons who together carry on, a business which consists of or includes the performing of home building work for others'.[17]
[17] HBC Act, s 3.
The term 'owner' in relation to a contract means 'the person for whom or which home building work is to be performed under the contract'.[18]

The jurisdictional issue

[18] HBC Act, s 3.

In Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16 (Citta) the High Court set out a number of principles in respect of the role of a non-court State tribunal (tribunal) in determining State jurisdiction. These principles may be summarised as follows:
a)the tribunal has a duty and concomitant authority to ensure that a complaint referred to it is and remains within its jurisdiction to hear and determine;[19]
b)the power which the tribunal has to ensure that it remains within the limits of its jurisdiction is not of a nature that is inherently judicial but rather takes its nature from the nature of the power;[20]
c)a tribunal that is invested with non-judicial power has authority in the exercise of non-judicial power to 'make up its mind' or 'decide' in the sense of forming an opinion' about the limits of its own jurisdiction 'for the purpose of determining its own action';[21] and
d)a tribunal that is conferred with judicial power by State legislation has incidental jurisdiction to determine whether the hearing and determination of a particular claim or complaint would be within the legislated limits of its State jurisdiction.[22]
[19] Citta at [17] per Kiefel CJ, Keane, Gordon, Steward and Gleeson JJ; and at [62] per Edelman J.
[20] Citta at [22] per Kiefel CJ, Keane, Gordon, Steward and Gleeson JJ.
[21] Citta at [24] per Kiefel CJ, Keane, Gordon, Steward and Gleeson JJ; and at [65] per Edelman J.
[22] Citta at [25] per Kiefel CJ, Keane, Gordon, Steward and Gleeson JJ.

The applicants are seeking:
a)in respect of CC 1307 of 2021, the conversion of a building remedy order to a monetary order for alleged non-compliance with the order by the respondent; and
b)in respect of CC 1793 of 2021, a building remedy order.
Section 38(1)(a) of the BSCRA Act provides that if the Building Commissioner refers a building service complaint to the Tribunal, the Tribunal may, if the Tribunal is satisfied that the regulated building service that is the subject of the building service complaint has not been carried out in a proper and proficient manner or is faulty or unsatisfactory, deal with the building service complaint by making a building remedy order.
Section 51 of the BSCRA Act provides that if the Tribunal is satisfied that a building remedy order made under s 36(1)(a) of the BSCRA Act has not been complied with, or has been complied with in part only, by the person to whom it was given, then the Tribunal may do two things. First, the Tribunal may revoke the order in relation to remedying the building service in whole or in part. Second, the Tribunal may make a building remedy order referred to in s 36(1)(b) or (c) in relation to that building service.
A building remedy order consists of one of the following –
(a)an order that a person who carried out a regulated building service remedy the building service as specified in the order;
(b)an order that a person who carried out a regulated building service pay to an aggrieved person such costs of remedying the building service as the Building Commissioner or State Administrative Tribunal, as the case requires, considers reasonable and specifies in the order;
(c)an order that a person who carried out a regulated building service pay to an aggrieved person a sum of money specified in the order to compensate the aggrieved person for the failure to carry out the building service in a proper and proficient manner or for faulty or unsatisfactory building work. [23]
[23] Section 36(1) of the BSCRA Act,
A building remedy order may be made by the Building Commissioner or the Tribunal. A building remedy order is an order that is directed to 'a person who carried out a regulated building service' to remedy the building service or pay an aggrieved person money.[24]
[24] BSCRA Act, s 36(1).
It is apparent from an examination of the above provisions that the Tribunal cannot make a building remedy order under s 36, s 38 and s 51 of the BSCRA Act unless the person against whom or which the order is sought, carried out the regulated building service the subject of the complaint. Accordingly, the question as to whether or not the Tribunal has jurisdiction under the BSCRA Act in respect of each proceeding depends on whether or not the respondent 'carried out a regulated building service' under the BSCRA Act.

Carrying out a regulated building service

There have been a number of decisions of the Tribunal and the Supreme Court which have considered the construction of the phrase 'carried out' in s 12A of the Builders Registration Act 1939 (WA) (BR Act) and its successor, the BSCRA Act.
In Gillett and Anor and Jamusen Enterprises Pty Ltd (Decision O.18207) [2008] WABDT 42 (3 December 2008)[25] (Gillett) the complainants decided to renovate their home. Mr Gillett was granted a building licence. However, he claimed that he intended to engage other people to supply the materials and perform the building works. Mr Gillett claimed that he had engaged the respondent to supply building materials and to construct the floors, walls and roof of the dwelling. A dispute arose between the complainants and the respondent. The respondent argued that the complaint was not within the jurisdiction of the BD Tribunal because there was never any building contract between the respondent and the complainants, only an agreement to supply building material and that Mr Gillet had obtained a building licence and was the owner-builder. The BD Tribunal decided that there was no contract between the complainants and the respondent for the performance of any home building work and therefore the complaint did not fall within the jurisdiction of the BD Tribunal.
[25] A decision of the Building Disputes Tribunal (BD Tribunal) published on 3 December 2008.
In Gillett, the BD Tribunal stated[26]:
The fact that Mr Gillett obtained the building licence himself, making him the owner builder, does not preclude a contract for the performance of part of the building work under that building licence from being a home building work contract for the purposes of the [Home Building Contracts Act 1991 (WA)].
[26] Gillett at [64].
In Hopper and Buckeridge Nominees Pty Ltd T/As Affinity Windows (Decision O.20106) [2011] WABDT 29 (6 April 2011)[27] (Hopper) the complainants were the owners of a dwelling. One of the complainants obtained a building licence approving the addition of a bedroom, ensuite and entry to the dwelling. During the building works, the complainants contracted the respondent to supply and install doors and windows for $3,487. The complainants complained that the respondent installed the glass with its logo etched across each panel. The complainants filed a complaint at the BD Tribunal which ordered the respondent to pay the complainants $1,500 compensation.
[27] A decision of the BD Tribunal published on 14 June 2011.
In Hopper, the BD Tribunal held that the respondent was responsible for the building works and was the person who carried out the building work within the meaning of s 12A of the BR Act. The BD Tribunal found that the building works were supervised and managed by the respondent for the following reasons:
a)the complainants were not owner-builders as the building licence was issued to only one of the complainants and s 12A makes no reference to building licences or permits;
b)when the glass was delivered to the site one of the complainants directed that it not be installed because of the etching. However, the respondent's subcontractor on site sought instruction by telephone from the respondent's service manager and followed his instructions to install the glass. The BD Tribunal saw this as demonstrating that the respondent was exercising control over the relevant building works; and
c)the respondent not only manufactured and supplied the doors and windows, but also supervised and managed all aspects of the installation including engaging in and providing instruction to the subcontractor who physically performed the relevant building work.
Further, the BD Tribunal held:[28]
In the present case the relevant contract between the parties was for the supply and installation of glass doors and windows, which was only a portion of the renovations to the house. The respondent submitted that it was not managing or supervising the whole of the renovation and therefore was only a subcontractor to the owner builders and not the "person who performed the building work".
Section 12A refers to complaints over "any building work" and not "the whole scope of works specified in any building licence". Any construction of this section which resulted in faulty or unsatisfactory workmanship falling outside the jurisdiction of the Act due to the existence of an owner builder permit or an intention by the home owner to undertake a larger scope of building works than the works complained of is inconsistent with the intent and object of the Act. Section 18 of the Interpretation Act provides that a construction to promote the purpose or object of an Act is to be preferred. The purpose of the Act is to regulate the building industry and provide remedies to home owners with workmanship complaints against builders.
[28] Hopper at pages 9 and 10.
In Shami, Mr Parkin entered into a contract with Mr Farinola for the construction of a dwelling in 2010. Mr Farinola held the building licence for the construction of the dwelling and, as agreed between the parties, completed the dwelling to lock-up stage. Mr Parkin undertook the finishing of the dwelling (the completion work). Mr Shami installed tiles in accordance with Mr Parkin's requirements. Mr Parkin completed the waterproofing of the tiled areas and made alterations to the tiling work completed by Mr Shami. Mr Teo purchased the dwelling from Mr Parkin in 2015 and subsequently made a complaint to the Building Commissioner against Mr Farinola and Mr Shami. The Building Commissioner made a building remedy order which required Mr Shami to remedy the tiling work. Mr Shami sought a review of the building remedy order
The Tribunal concluded that a building remedy order can only be made against the person who had the role of ensuring that the entire building project, which included the work the subject of the building service complaint, was brought to completion. In Shami, the Tribunal held that neither Mr Shami nor Mr Farinola had carried out the tiling work.
The Tribunal gave careful consideration as to the proper construction of the phrase 'carried out' in the context of s 36(1) and s 37(1) of the BSCRA Act. The relevant paragraphs have been reproduced below:
39As has already been stated, the provisions of s 37(1) and s 38(1) of the BSCRA Act are similar. They give the Building Commissioner and the Tribunal respectively the power to make a building remedy order in accordance with s 36(1) of the Act if the regulated building service that is the subject of a building service complaint has not been carried out in a proper and proficient manner or is faulty or unsatisfactory. The words 'carried out' appear in each of those subsections.
40In Diploma Construction (WA) Pty Ltd v South Central WA Pty Ltd [2015] WASC 289 (Diploma Construction), Mitchell J, in the course of considering the proper construction of s 38(1) of the BSCRA Act, referred to the case of Bradshaw v McGuire (unreported, WASC, Library No 6260, 30 April 1986) (Bradshaw) and made the following relevant comments:
…
45Prior to the enactment of the [BSCRA Act], complaints about unsatisfactory building work were the subject of s 12A of the [Builders' Registration Act]. Section 12A enabled a complaint to be made that 'any building work has not been carried out in a proper and workmanlike manner by reason that the building work is faulty or unsatisfactory'. When a Disputes Tribunal (and at an earlier time, a Board) was satisfied of this matter under s 12A(1) of the [Builders' Registration Act], it could order the person who carried out the work to remedy the faulty or unsatisfactory building work.
…
47The operation of s 12A(1) of the Builders' Registration Act, as it stood in 1986, was considered by a Full Court comprised of Burt CJ, Wallace and Pigeon JJ in [Bradshaw]. …
…
50Wallace J observed: … a builder is responsible to the building owner for faulty workmanship carried out by subcontractors … I agree with what Pidgeon J had to say thereon in Shaw v McLeod. (citation omitted)
51Pidgeon J said:
… It would, in my view, be an erosion of what the legislature intended by s 12A for a builder to escape the jurisdiction of the Board by submitting that the work complained of was not within the builder's specialty and had been done by a specialized subcontractor. …
52In Bradshaw … [the] argument that a builder does not 'carry out' work for which he engages a contractor was also rejected.
53The similarity between the language of s 12A(1) of the Builders' Registration Act and s 38(1) of the [BSCRA Act] strongly suggests that the substituted provision is intended to operate in a similar manner to that established for the repealed provision. …
…
55… Regard may be had to the explanatory memorandum to identify the purpose of the provisions, and a construction which promotes that purpose preferred, pursuant to s 18 and s 19 of the Interpretation Act 1984 (WA).
41As referred to above, the operation of s 12A of the Builders' Registration Act was also considered in Shaw v McLeod (unreported, WASC, Library No 4707, 8 November 1982) (Shaw), which was an appeal from the decision of a Magistrate that the appellant had failed to comply with an order made under s 12A. One of the grounds of appeal was that the appellant was not the person 'who carried out the building work' within the meaning of that term in s 12A. Pidgeon J in Shaw, at 11, said: [The Magistrate] considered the charge was validly brought against the accused and gave the following as his reasons:
'I consider that in referring to the person who "carried out the building work" s12A(1) of the [Builders' Registration Act] is referring specifically to the person responsible for the building of the edifice whatever it may be. I do not consider that it is the specific bricklayer, carpenter, plumber or such other tradesmen as actually did the work who is that person …
My reading of the [Builders' Registration Act] as a whole leads me to the same conclusion as the learned Magistrate and that the person referred to as being the person 'who carried out the building work' would not be the subcontractors engaged. The person who physically carries out the work may not even be the subcontractors and could well be a bricklayer on wages or a builder's labourer. It could not have been the intention of the [Builders' Registration Act] that the [order] goes to such person. I consider that the words 'building work' in s.12A is the whole work the subject of the contract which normally would be the work in respect of which the permit issues or what his Worship describes as 'the edifice'[.]
42The case of Voce v Watson (1989) 89 ACTR 1 (Voce) dealt with the proper construction of a regulation which imposed a duty on any person who 'carries out any building work' to take safety measures to prevent injury to persons engaged in the building works. Kelly J, at 7, referred to the intended meaning of the phrase 'person who carries out' as being: … a person who, in effect, has the role of ensuring that the necessary building work is performed normally to its completion either by himself or by his servants or agents. It does not … mean that every person who is actually performing any of the building work in question 'carries out' such building work[.]
43Then Kelly J, went on to state in Voce, at 9: When one turns to the meaning given the phrase 'carry out' in the Shorter Oxford Dictionary one finds that the relevant meaning is 'to conduct to conclusion'. This meaning may not, of course, be entirely applicable in respect of a partly completed building, but obviously in completing such a building the person concerned with the building work is carrying out the necessary building work from the beginning of the works upon which he is engaged.
44The meaning given to the phrase 'carry out' in the Macquarie Dictionary Online (2017) is 'to accomplish or complete (a plan, scheme, etc.)'. That is similar to the meaning given to the phrase in the Shorter Oxford Dictionary referred to by Kelly J in Voce.
45The Tribunal agrees with the view expressed by Mitchell J in Diploma Construction that the similarity between the language of s 12A of the Builders' Registration Act and s 38(1) of the BSCRA Act (and hence also s 37(1) of the BSCRA Act), strongly suggests that s 37(1) and s 38(1) are intended to operate in a similar manner to that established for s 12A.
46Therefore, in construing the phrase 'carried out' in s 36(1) and s 37(1) of the BSCRA Act, the Tribunal adopts the approach taken by Wallace and Pidgeon JJ in Bradshaw and by Pidgeon J in Shaw regarding the construction of the phrase 'carried out' in s 12A of the Builders' Registration Act and also the approach taken by Kelly J in Voce regarding the construction of the phrase 'carries out' in the regulation considered in that case.
47Accordingly, the Tribunal has decided that the proper construction of the phrase 'carried out' in s 36(1), s 37(1) and s 38(1) of the BSCRA Act is that it means the completion of the entirety of the building work of which the work the subject of a building service complaint forms part. That entirety of work could be described as 'the building project'. In the case of the construction of an entire building the building project will be the construction of the 'edifice' referred to in Shaw. In other cases the building project could be the completion of a building after it has reached a certain stage, or the alteration, improvement or repair of a building.
48For the purposes of s 36(1), s 37(1) and s 38(1) of the BSCRA Act, it is the entirety of the work of the building project which is carried out, not the components of it. What follows from that construction is that a building remedy order can only be made against the person who had the role of ensuring that the entire building project which includes the work which is the subject of a building service complaint was 'carried out', or in other words 'brought to completion'. It does not matter whether the work was done personally by that person or by other persons whom they arranged to perform the various components of the overall work. However, it needs to be noted that for a building remedy order to be made against that person the building project must be a 'regulated building service' as defined in s 3 of the BSCRA Act.
49Where an owner of a building undertakes a building project, whatever the scope of that project may be, they put themself in the same position as a builder (or to be more precise, a registered building service provider if a building permit is required for the project under the Building Act) or a contractor (if a building permit is not required and the owner chooses a contractor who is not a registered building service provider) would be if they were engaged to carry out the entire project.
Subsequently, in Teo and Parkin [2018] WASAT 7 (Teo), Mr Teo made a complaint against Mr Parkin in respect of the tiling work carried out at the dwelling. A preliminary issue arose as to whether Mr Parkin had carried out a regulated building service and, in particular whether the building work was done without an authority under the BR Act and the Local Government (Miscellaneous Provisions) Act 1960 (WA) (LGMP Act). Following on from the decision in Shami, The Tribunal decided that it was the entirety of the completion work which had to be considered, and that the completion work (including the tiling) was part of the building or construction of the dwelling and, when Mr Parkin carried out that work, he was proceeding with a building for the purposes of the LGMP Act and therefore required a building licence before he proceeded with it. The Tribunal held that the tiling work was unauthorised work for the purposes of reg 5A of the BSCRA Regulations (because the respondent did not have a licence for the completion work) and, therefore, the tiling work was a regulated building service for the purposes of the BSCRA Act.
In Owners of Strata Plan 65323 and Palazzo Homes Pty Ltd [2020] WASAT 57 at [29]-[30] the Tribunal said:
In the decision of [Shami] the Tribunal considered the proper construction of the phrase 'carried out' in s 36(1), s 37(1) and s 38(1) of the Act. The Tribunal decided that the phrase 'carried out' means the completion of the entirety of the building work of which the work the subject of a building service complaint forms part. The Tribunal described the entirety of that work as 'the building project'. In the case of the construction of an entire building, the building project will be the construction of the 'edifice' referred to in Shaw v McLeod (unreported, WASC, Library No 4707, 8 November 1982).
In Shami, the Tribunal concluded that a building remedy order can only be made against the person who had the role of ensuring that the entire building project, which includes the work which is the subject of a building service complaint, is brought to completion[.]

In Hawke and Ennis [2018] WASAT 118 (Ennis) the Tribunal said at [20]:
What is made clear in the decision of Shami is that the entity who has carried out the regulated building service for the purposes of the BSCRA Act is not necessarily the person on site undertaking the mechanics of the work but is that entity which is responsible for the entirety of the building project. It is the entity who has the role of ensuring that the entire project was carried out and brought to a completed state.
In Ennis the answer to the question as to which person carried out the regulated building service depended on the identification of the entity with whom the applicant had contracted. The applicant claimed that it was the respondent because, inter alia, the respondent carried out the majority of the works in that he was attending on site most days and performed large amounts of the work. The Tribunal rejected that submission on the basis that 'the mechanics of the work itself does not necessarily answer the question as to who carried out the regulated building service or the overarching building project'.[29] Instead the Tribunal found that the applicant had contracted with a corporate entity of which the respondent was the sole director because:
… The written quotation and invoicing and the depositing of the funds received in respect of the performance of the work all support the position that Ennis Nominees carried out the regulated building service.[30]
[29] Ennis at [49].
[30] Ennis at [53].
In The Owners of Richmond Quarter Strata Plan 66227 and Pindan Contracting Pty Ltd [2020] WASAT 103 (The Owners of Richmond Quarter Strata Plan 66227) the applicant lodged a complaint with the Building Commissioner in relation to the construction of a seven storey complex (project). The respondent was named on the original building permit. The respondent claimed that another entity (Company) carried out the regulated building service the subject of the complaint but the Company was not a party to the proceeding. The Tribunal found that the Company had overall responsibility for the delivery of the project for the purposes of the test in Shami because:
… The Company entered into the building contract with the Developer, undertook the construction work at the Premises that was the subject of the contract, was paid by the Developer for the work, produced risk management plans for the construction site, and lodged the notice of completion with the Town. Having regard to these factors, the Tribunal found that it was the Company who carried out the regulated building service that is the subject of this proceeding.[31]
[31] The Owners of Richmond Quarter Strata Plan 66227 at [30].
In Lee and Holmes [2020] WASAT 108 (Lee) the applicants sought a building remedy order against the first respondent, the person to whom the building permits for each unit were issued, in respect of the supply and installation of doors and windows at two units owned by the applicants. In that case, the Tribunal was not satisfied that the first respondent had carried out a regulated building service because the building permits were obtained in the first respondent's name with full knowledge that the first respondent would not construct the two units. The Tribunal found that contracts to construct the units and the applications for building permits were a sham and that the building permits were granted on false information. The Tribunal also found that the first respondent played no part in supervising the construction of the two units or the whole project or any part thereof and that he did not engage a trade or order the supply of materials for the construction of the units and did not obtain any quotes therefor.
In Lee the Tribunal held at [18]:
The Tribunal has recently had the opportunity to consider the cases relevant to a conclusion about who is a person who 'carried out' a regulated building service. That phrase does not apply to the person who merely undertakes the physical labour tasks in the construction of the dwelling. It refers to the person who carries the responsibility of the construction of the edifice (as described in Shaw v McLeod (unreported, WASC, Library No 4707, 8 November 1982)) as cited and applied in Shami and Teo [2017] WASAT 73 (Shami). Whilst it is a question of fact, who did create or construct the edifice, in Hawke and Ennis [2018] WASAT 118, the Tribunal concluded, unsurprisingly, that the entity that issued the invoices to the owner and deposited the payment for those invoices, was the entity that 'carried out' the regulated building service on the evidence in that proceeding. The responsibility for the construction of the edifice and the 'building project' calls for an examination of all aspects of the alleged involvement of the person alleged to be the one who carried out the regulated building service, from quoting for and contracting with the owner, obtaining authorisation to construct, purchasing or calling for the supply of the required goods and services for the construction, supervising the performance of the supply of the goods and services on the site, paying for the goods and services supplied, paying for the cost of the goods and services incurred the construction, rendering invoices to the owner for those cost and receipting the funds paid.
We prefer the approach taken in Shami to the approach taken in Hopper as we consider that the former approach is consistent with the purpose of the BSCRA Act. Further, the approach taken in Shami has been consistently followed in other Tribunal decisions which are referred to above.

Identifying the building project

The first issue which arises for consideration is the identification of the regulated building service.
It is not in dispute that Mr Appleby was granted a building permit in respect of the construction of the Dwelling and that the Dwelling was constructed. It is also not in dispute that the applicants entered into a contract with the respondent for the supply and installation of the windows and doors, and that the windows and doors were supplied and installed by the respondent.
The applicants contend that the supply and installation of the windows and doors fall within paragraph (b) of the definition of 'regulated building service' and that the agreement between the applicants and respondent was an entire contract for carrying out part of the construction of a dwelling, namely the supply and installation of the windows and doors.
However, in Shami, the Tribunal said at [59]-[60]:
59At first glance it is not clear why paragraph (b) has been included in the definition of 'regulated building service' in the BSCRA Act. It is based on the definition of 'home building work' in the Home Building Contracts Act. However it is broader in scope than the building work covered by the Home Building Contracts Act. It does not contain all of the limitations contained in the definition of 'home building work contract' in that Act, in particular the monetary limits and the requirement that the person who carries out the work must do so as part of a business.
60If 'carried out' is construed to mean the completion of an entire project then paragraph (b) of the definition of 'regulated building service' will be confined to building work carried out solely by one person for an owner in circumstances where no other building work is being done in conjunction with that work. That construction is consistent with the purpose of the BSCRA Act to make the person who is responsible for the overall building project the person against whom a building remedy order may be made, with the consequence that such person (whether they are a registered building service provider, an approved owner-builder in the case of building work which requires a building permit, an owner who arranges their own building or renovation project or a contractor who solely carries out the work in such a project in the case of work which does not require a building permit) must pursue any claim against a sub-contractor for faulty work performed by that sub-contractor through the courts rather than under the BSCRA Act.
We agree with the Tribunal's reasoning in Shami in respect of the operation of paragraph (b) of the definition of 'regulated building service'. This is for four reasons.
First, such an approach is consistent with the approach taken by the Supreme Court, namely, to look at the entirety of the work of the building project rather than various components of the building project.
Second, under the BSCRA Act, it is open to a person who has purchased a home from an owner-builder to seek redress under the BSCRA Act in respect of work that has not been carried out in a proper and proficient manner or is faulty or unsatisfactory. It would be contrary to the purpose of the BSCRA Act if an owner-builder were able to avoid responsibility for a regulated building service by pushing responsibility onto the contractors the owner-builder has engaged to perform components of the entire building project. It would also be anomalous if an owner-builder were able to avoid responsibility when any other builder could not.
Third, if it is accepted that it would be contrary to the purpose of the BSCRA Act for an owner-builder to avoid responsibility for a regulated building service by pushing responsibility onto the contractors the owner-builder has engaged to perform components of the entire building project, then it also follows that the owner cannot seek redress under the BSCRA Act in respect of the work of such contractors.
Fourth, even though an owner-builder in such circumstances is devoid of remedy under the BSCRA Act, the owner-builder may have a remedy against a contractor for breach of contract.
If one looks at the supply and installation of the windows and doors in isolation, then it is possible to characterise the building work as being within paragraph (b) of the definition of 'regulated building service', namely home building work (part of the work of constructing a dwelling) carried out by the respondent for the applicants under a home building work contract or arrangement for gain or reward.
However, following the approach taken in Shami, we are of the view that the supply and installation of the windows and doors has to be considered in the context of the construction of the Dwelling itself and not in isolation, because the construction of the Dwelling was the edifice or the building project. This is for the following reasons:
a)the applicants commenced discussions with the respondent about the supply and installation of the windows and doors in contemplation of the construction of the Dwelling;[32]
b)the estimated cost of construction set out in the building permit issued to Mr Appleby included the cost of construction of the windows and doors;
c)the plans and drawings for construction of the Dwelling included the openings in respect of which the windows and doors were to be installed;[33]
d)the drawings and specifications for the windows and doors were prepared by Mr Durczak based on the openings on the plans and drawings for the construction of the Dwelling; and
e)the windows and doors were supplied and installed during the construction of the Dwelling (that is, other building work was being carried out in conjunction with the supply and installation of the doors and windows).
[32] Exhibit 1 at pages 809-810 and 949.
[33] Exhibit 1 at page 780-790.
Accordingly, in this case, we find that the regulated building service was the construction of the Dwelling, including the supply and installation of the windows and doors.

Person carrying out the regulated building service

Given our finding that the regulated building service was the construction of the Dwelling, including the supply and installation of the windows and doors, the next issue to be considered is whether the respondent was responsible for that regulated building service.
We are satisfied on the evidence and find that it was Mr Appleby and not the respondent who was the person responsible for ensuring that the construction of the Dwelling, including the supply and installation of the windows and doors, was carried out or brought to completion. This is for the following reasons:
a)Mr Appleby, not the respondent, was the person who was granted the building permit in respect of the construction of the Dwelling and was, therefore, the owner-builder in respect of that Dwelling;
b)Mr Appleby had originally engaged the services of a site supervisor in respect of the construction of the Dwelling but this fell through and the site supervisor was not replaced;
c)Mr Appleby engaged all the teams working on the construction of the Dwelling namely: bricklaying, concreting, electrical, plumbing, roof carpenters, kitchen, flooring, timber and doors and windows;
d)Mr Appleby arranged for the various teams to attend the site when the building project had reached the stage of readiness for particular work to be done;
e)the respondent was only contracted to supply and install the windows and doors for the Dwelling and bore no responsibility for the construction of the Dwelling;
f)although Mr Durczak visited the site to provide additional manpower for the supply and installation of the windows and doors or when he was asked by Mr Appleby to attend, he was not the site supervisor for the construction of the Dwelling;
g)there was no separate building authority in respect of the installation of windows and doors; and
h)Mr Appleby, as the person named as the builder on the building permit, was required to ensure that:
i)the Dwelling was completed in accordance with the plans and specifications and otherwise complied with the building permit;[34] and
ii)on completion of the Dwelling, the Dwelling complied with each applicable building standard.[35]

Conclusion

[34] Building Act 2011 (WA), s 29(1).

[35] Building Act 2011 (WA), s 37(1).

Applying the test in Shami, we conclude that the respondent was not the person who carried out the regulated building service the subject of each complaint by the applicants for the purposes of the BSCRA Act. It follows that the preliminary issue in each proceeding is answered in the negative.
Accordingly, we find that the Tribunal does not have jurisdiction to determine either complaint, and that each application should be dismissed because the Tribunal does not have jurisdiction.

Orders

The Tribunal orders:
CC 1307 of 2021
1.On the preliminary issue, the Tribunal does not have jurisdiction to deal with the applicants' complaint.
2.The application is dismissed.
CC 1783 of 2021
The Tribunal orders:
1.On the preliminary issue, the Tribunal does not have jurisdiction to deal with the applicants' complaint.
2.The application is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS C Conley, MEMBER
29 AUGUST 2022