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
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…
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- Case
- [2025] WASAT 63
- Decision Date
CaseChat Overview and Summary
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.
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Decision
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