BACICH and T & H NOMINEES PTY LTD - [2025] WASAT 63

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   BACICH and T & H NOMINEES PTY LTD [2025] WASAT 63
MEMBER:   MR D AITKEN, SENIOR MEMBER
MR R AFFLECK, SENIOR SESSIONAL MEMBER

HEARD:   26 AND 27 MARCH 2025
DELIVERED          :   3 JULY 2025
FILE NO/S:   CC 26 of 2023
BETWEEN:   IVAN BACICH
Applicant
AND
T & H NOMINEES PTY LTD
Respondent

Catchwords:

Home building work contract (HBWC) complaint - Review of decision of original Tribunal to decline to make a HBWC remedy order - Whether the complaint properly made to the Building Commissioner within time - When did the cause of action arise for the breach of contract - Breach of contract by not obtaining a building permit for the patio constructed - What loss or damage suffered by the applicant - Ruling principle with respect to damages for breach of contract at common law applies to determination of compensation under s 43(1)(a) and s 43(2)(d)(i) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) - Did the applicant take all reasonable steps to mitigate his loss - The legislative requirements for obtaining retrospective approval (a building approval certificate) - Whether a party to a HBWC can be compensated under s 41(2)(d)(i) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) for non-financial loss or damage, such as emotional harm or personal injuries

Legislation:

Building Act 2011 (WA), s 9, s 51, s 54(3), s 57, s 57(1),
Building Regulations 2012 (WA), reg 4, reg 36, reg 36(2)(b)
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 6(3)(b), s 7(1), s 7(2), s 7(3), s 9, s 10, s 11(1), s 11(1)(d), s 37, s 41, s 41(2), s 41(2)(d), s 41(2)(d)(i), s 42, s 43, s 43(1), s 43(1)(a), s 43(1)(b), s 43(2)(a), s 43(2)(d), s 58(2), s 58(5), s 67,
State Administrative Tribunal Rules 2004 (WA), r 39B, r 39C,

Result:

Application partly successful

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	Mr S Lieberfreund

Solicitors:

Applicant	:	N/A
Respondent	:	Morgan Alteruthemeyer Legal Group

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

Baltic Shipping v Dillon (1993) 176 CLR 344
Morton Seed & Grain Pty Ltd v Phillbourne Manufacturing Pty Ltd [2018] WASC 386
Robinson v Harman (1848) 1 Exch 850
Summit Rural (WA) Pty Limited v Lenane Holdings Pty Ltd [2024] WASCA 122
Suri and Beyond Builders Pty Ltd [2024] WASAT 20
Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8; (2009) 236 CLR 272
The Owners of 52 Mill Point Road Strata Plan 62152 and Hanssen Pty Ltd [2021] WASAT 102
Wyloo Metals Pty Ltd v Quarry Park Pty Ltd [2021] WASC 356

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

This proceeding is an application by Mr Ivan Bacich (applicant) for review of the decision of the Tribunal, constituted by Member Barton and Sessional Member Fraser (original Tribunal) on 9 December 2022 in Matter Number CC 699…

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: [2025] WASAT 63
Decision Date: 3 JULY 2025

CaseChat Overview and Summary

In the case of BACICH and T & H Nominees Pty Ltd, the applicant sought to enforce a home building work contract (HBWC) against the respondent, alleging breaches including the failure to obtain a building permit for a constructed patio. The original Tribunal declined to make an order against the respondent, dismissing the applicant’s complaints. The applicant appealed this decision, seeking review under the Building Services (Complaint Resolution and Administration) Act 2011 (WA). The primary issues before the Tribunal were whether the Tribunal had jurisdiction to hear the complaint and, if so, what loss or damage the applicant had suffered due to the breach of contract, and what remedy should be ordered. The respondent conceded that it had breached the contract by not obtaining approval for the constructed patio, thus narrowing the scope of the dispute.

The first issue concerned the Tribunal’s jurisdiction, focusing on whether the complaint was properly made to the Building Commissioner and within the statutory time limits. The second issue was to determine the extent of the applicant’s loss or damage caused by the breach and the appropriate remedy under the Act. The Tribunal found that it did have jurisdiction to hear the complaint, as it was properly made and within the required timeframe. Regarding the loss or damage, the Tribunal considered the breach of contract by the respondent in not obtaining the necessary approval and concluded that the applicant had suffered financial loss. The Tribunal applied the ruling principle for damages for breach of contract under common law, determining that the applicant was entitled to compensation of $233.30 for the breach. This amount represented the cost of obtaining a building approval certificate retrospectively.

The Tribunal ordered the respondent to pay the applicant $233.30 as compensation for the breach of contract. This decision was made under sections 43(1)(a) and 41(2)(d) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA). The Tribunal found that the applicant had taken reasonable steps to mitigate their loss, and the statutory requirements for obtaining retrospective approval were satisfied. The Tribunal also noted that the applicant could not be compensated for non-financial loss or damage under the Act. This ruling clarified the scope of compensation available under the Act and provided a clear remedy for the applicant’s financial loss resulting from the respondent's breach of contract.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The decision of the original Tribunal pursuant to s 43(1)(b) of the BSCRA Act was to decline to make an order against the respondent and consequently to dismiss the 14 items of complaint made by the applicant in that matter (Dismissal Decision). The application for review is made under s 58(2) of the BSCRA Act, but s 58(5) of the Act provides that the Tribunal must give leave before the application for review can be made. The application for leave to review was heard by Senior Member Aitken on 6 October 2023 and on 11 October 2023 he gave leave to review the Dismissal Decision limited to the issue of whether the respondent breached the Contract by not obtaining approval from the City of Cockburn for the works carried out by the respondent under the Contract (the Constructed Patio). Senior Member Aitken gave his reasons for that decision orally on 11 October 2023. The matter was then referred to mediation, but that did not result in the resolution of the matter between the parties and the matter was listed for a directions hearing before Senior Member Aitken on 23 May 2024. At that directions hearing the legal representative of the respondent stated that the respondent concedes that it breached the Contract by not obtaining approval from the City of Cockburn for the Constructed Patio (the breach of the Contract).[1][1] The respondent had obtained a building permit to construct a patio at the applicant's property prior to carrying out the works, but that building permit was not for the Constructed Patio. As the result of that concession, the issue remaining to be determined by the Tribunal is what loss or damage the applicant has suffered by reason of the breach of the Contract and, consequently, what HBWC remedy order should the Tribunal make under s 43(1)(a) and s 41(2) of the BSCRA Act to compensate the applicant for that loss and damage. This will be dealt with below as Issue 2. Prior to the final hearing, the respondent raised the issue of whether the Tribunal has jurisdiction to determine this matter. This will be dealt with below as Issue 1, because it is appropriate to deal with the question of jurisdiction, before dealing with the other issue. For the reasons which follow, we have decided to make a HBWC remedy order pursuant to s 43(1)(a) and s 41(2)(d) of the BSCRA Act that the respondent pay the amount of $233.30 to the applicant as compensation for the breach of the Contract. The issues to be determined in the proceeding are:Issue 1: Does the Tribunal have jurisdiction to determine this matter? The respondent has raised two aspects of this issue. First, was the HBWC Complaint properly made to the Building Commissioner? Secondly, was the HBWC Complaint made to the Building Commissioner within time?Issue 2: If the answer to Issue 1 is 'yes', what loss or damage has the applicant suffered by reason of the breach of the Contract and what HBWC remedy order should the Tribunal make under s 43(1)(a) and s 41(2)(d) of the BSCRA Act? The engineer expert witnesses, Mr Peter Airey for the applicant and Mr Phillip Scott for the respondent (Expert Witnesses), each prepared a report, both of which were filed with the Tribunal and are included in the hearing book referred to in [18] below.[2] [2] Exhibit 1, pages 77 - 102 (Airey report) and pages 225 - 255 (Scott report).

Ratio Decidendi

Legal Principle Established

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