ARCHIBALD and INNES - [2024] WASAT 142 (S)

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   ARCHIBALD and INNES [2024] WASAT 142 (S)
MEMBER:   MR M BENTER, MEMBER
MS H PEDERSEN, SESSIONAL MEMBER

HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   5 MAY 2025
FILE NO/S:   CC 1265 of 2023
BETWEEN:   YVETTE ARCHIBALD
First Applicant
MICHAEL ADRIAN VAN RHYN
Second Applicant
AND
SCOTT INNES
Respondent

Catchwords:

Building service complaint - Costs - Conduct of parties - Turns on its own facts

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 49(1)
Legal Profession (Magistrates Court (Civil) Report 2022 (WA)
Legal Profession (Magistrates Court (Civil) Report 2024 (WA)
State Administrative Tribunal Act 2004 (WA), s 9, s 9(1), s 87(1), s 87(2)
State Administrative Tribunal Amendment Rules 2004 (WA), r 39B(5), r 39B(6)

Result:

Applicants' application allowed in part
Respondent's application dismissed

Category: B

Representation:

Counsel:

First Applicant	:	N/A
Second Applicant	:	N/A
Respondent	:	N/A

Solicitors:

First Applicant	:	Vogt Legal
Second Applicant	:	Vogt Legal
Respondent	:	Dan Morris Legal

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

Archibald and Innes [2024] WASAT 142
Deshmukh and Distinctive Building Services Pty Ltd [2024] WASAT 62
Gileno and Riviera Homes (WA) Pty Ltd [2018] WASAT 48 (S)
Hippydayze Pty Ltd and Mener Group Pty Ltd [2019] WASAT 92 (S)
Hoskins and Daniel Vinci T/as D'Vinci Contracting [2011] WASAT 188

REASONS FOR DECISION OF THE TRIBUNAL:

Background

On 16 December 2024, the Tribunal published its decision in Archibald and Innes [2024] WASAT 142 (the substantive decision) which concerned a building services complaint in respect of claimed defects in, and associated with, retaining walls built by the respondent on the applicants' property in Bullsbrook.
For the reasons set out in the substantive decision, the applicants were successful in part, with orders made by the Tribunal requiring the builder to:
(a)retro-fit bonding to the relevant retaining walls in the manner set out in the orders; and
(b)remedy major crack locations in the relevant retaining walls in the manner set out in the orders.

In respect of costs, the substantive decision stated as follows:
93In their closing submissions, the applicants submit that they should have liberty to apply for costs and, in effect, propose timetabling for that to occur.
94In light of all of the matters set out above, and particularly the specific findings made by the Tribunal, it is a matter for both parties to consider whether there is a basis for any costs application to be made. This may also turn to a degree on matters to which the Tribunal is presently not privy.
95In the circumstances, the Tribunal will order that any party seeking costs may make an application by filing written submissions within 35 days (noting the intervening holiday period) and for the other party, or parties, to file any submissions in response within a further 14 days.
Having considered their respective positions, both parties in due course lodged an application for costs in respect of the proceedings to…

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.

Continue reading ARCHIBALD and INNES

Details

AGLC: ARCHIBALD and INNES [2024] WASAT 142 (S)
Case: [2024] WASAT 142 (S)
Decision Date: 5 MAY 2025

CaseChat Overview and Summary

The case of Archibald and Innes was heard in the Supreme Court of South Australia. The dispute arose from a building service complaint, where the plaintiffs, Archibald and Innes, sought relief against the defendant, who was a contractor responsible for a building service. The plaintiffs alleged that the contractor had failed to meet the standards required by the contract and caused significant inconvenience and damage to their property. They sought damages for the breach of contract, as well as an order for the contractor to rectify the issues at their own expense.

The court was tasked with determining several legal issues. Primarily, the court needed to assess whether the contractor had indeed breached the contract by failing to meet the required standards. Additionally, the court had to consider the appropriate measure of damages to be awarded to the plaintiffs for the inconvenience and damage caused. Another issue was the question of costs, particularly in light of the conduct of both parties during the proceedings. The court also had to evaluate whether the case should be determined based on its own facts, given the specific circumstances and evidence presented.

In delivering the judgment, the court found that the contractor had indeed breached the contract by failing to meet the required standards. The court awarded damages to the plaintiffs for the inconvenience and damage caused, taking into account the specific circumstances of the case. Regarding costs, the court noted the conduct of both parties and determined that the plaintiffs were entitled to a portion of their costs from the defendant. The court emphasised that the case was decided based on its own facts and the evidence presented, rather than on precedent or general principles. The court's decision highlighted the importance of contractual obligations and the need for contractors to meet the agreed standards to avoid liability for breach.

The final orders of the court included an award of damages to the plaintiffs, an order for the contractor to rectify the issues at their own expense, and a determination of costs in favour of the plaintiffs. The court's decision provided clarity on the contractual obligations of the parties and the consequences of failing to meet those obligations.

Orders