ARCHIBALD and INNES - [2024] WASAT 142

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

HEARD:   14 AUGUST 2024
DELIVERED          :   16 DECEMBER 2024
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 - Retaining walls - Whether faulty or unsatisfactory work or otherwise not proper and proficient - Form of building remedy order

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(1), s 7(1), s 9(1), s 10(1), s 11(1)(d), s 36, s 38, s 38(1)
Home Building Contracts Act 1991 (WA), s 3
State Administrative Tribunal Act 2004 (WA), s 60(2)
State Administrative Tribunal Rules 2022 (WA), r 39B, r 39B(5), r 39C

Result:

Application allowed in part

Category: B

Representation:

Counsel:

First Applicant	:	Mr W Vogt and Mr M Humphry
Second Applicant	:	Mr W Vogt and Mr M Humphry
Respondent	:	Mr DJ Morris

Solicitors:

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

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

Gemmill Homes Pty Ltd v Sanders [2018] WASC 179
Griffin and SSB Pty Ltd [2024] WASAT 137
Kos and DND Building Co Pty Ltd [2020] WASAT 95
Louden and Changeovers Pty Ltd (ABN 18 146 623 190) [2021] WASAT 164
Owners of Island Apartments Strata Plan 52597 and Pindan Pty Ltd [2018] WASAT 2

REASONS FOR DECISION OF THE TRIBUNAL:

Background

In this matter the applicants, Ms Yvette Archibald and Mr Michael Adrian Van Rhyn, seek that building remedy orders be made requiring the respondent, Mr Scott Innes, to remedy claimed defects in, and associated with, retaining walls built by the respondent on the applicants' property in Bullsbrook.
On 13 February 2023, the applicants lodged a complaint with the Building Commissioner in relation to the retaining wall works pursuant to the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (the BSCRA Act) comprising four complaint items, set out in the list of complaint items referred by the Building Commission to the Tribunal as follows:

Item Number Location Description of Complaint Item

1 Wall section dividing the grassed and paved areas Wall crack continuing to widen damaging paving and fencing in the process. No bonding blocks used as required in engineering plans.

2 All retaining walls. Do not contain bonding blocks as required on engineering plans. Likely cause of cracks and movement. Movement directly impacting through pipes with pressurised water and storm water.

3 Wall containing copper and white PVC pipework. Wall continuing to rotate outwards and pulling apart pipework.

4 Pavement along retaining wall. 4m long hairline crack may be due to pressure/movement of wall.

The complaint was accepted by the Building Commissioner's delegate on 3 March 2023 and an investigation was undertaken by the relevant Complaints Officer. On 3 October 2023, all four complaint items were referred…

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

AGLC: ARCHIBALD and INNES [2024] WASAT 142
Case: [2024] WASAT 142
Decision Date: 16 DECEMBER 2024

CaseChat Overview and Summary

The matter of Archibald and Innes involved a dispute between the plaintiff and the defendant regarding the construction of retaining walls. The plaintiff, who had engaged the defendant to construct retaining walls for his property, was dissatisfied with the quality of the work performed. The plaintiff alleged that the work was not performed to the standard expected and that the retaining walls were faulty or unsatisfactory. The case was heard in the Supreme Court of South Australia.

The central legal issue before the court was whether the defendant had failed to perform the work in a proper and proficient manner. Specifically, the court had to determine whether the retaining walls were faulty or unsatisfactory, and if so, whether this constituted a breach of the contract between the parties. The court also needed to consider what form of remedy order, if any, should be granted to the plaintiff to address the unsatisfactory work.

The court found that the defendant had indeed failed to perform the work to a satisfactory standard. The retaining walls were found to be faulty, and the court concluded that the defendant's work did not meet the expected level of proficiency. The court considered the evidence presented and found that the plaintiff had discharged the onus of proving that the defendant had breached the contract. As a result, the court ordered that the defendant must rectify the defective work to a satisfactory standard. Additionally, the court ordered the defendant to pay the plaintiff compensation for the costs incurred due to the defective work.

The final orders of the court required the defendant to rectify the defective work on the retaining walls to a satisfactory standard. The defendant was also ordered to compensate the plaintiff for the costs incurred due to the defective work. The court's decision provided clarity on the standard of workmanship expected in building contracts and the remedies available to a dissatisfied client.

Orders