BARKER and THE RENOVATOR PTY LTD
[2005] WASAT 239
•2 SEPTEMBER 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: BUILDERS' REGISTRATION ACT 1939 (WA)
CITATION: BARKER and THE RENOVATOR PTY LTD [2005] WASAT 239
MEMBER: MR C RAYMOND (SENIOR MEMBER)
HEARD: 11 JULY 2005
DELIVERED : 2 SEPTEMBER 2005
FILE NO/S: VR 226 of 2005
BETWEEN: MARCIA BARKER
Applicant
AND
THE RENOVATOR PTY LTD
Respondent
Catchwords:
Application for leave to review decision of Building Disputes Tribunal - Invitation to Building Disputes Tribunal to reconsider reviewable decision
Legislation:
Builders' Registration Act 1939 (WA), s 41
State Administrative Tribunal Act 2004 (WA), s 27, s 31
Result:
Application granted
Category: B
Representation:
Counsel:
Applicant: Selfrepresented
Respondent: Mr D Oksuz
Solicitors:
Applicant: Self-represented
Respondent: As Agent
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of the Tribunal's decision
The application was for leave to review a decision of the Building Disputes Tribunal (the Disputes Tribunal) reflected in an Order to Pay No 137/2004‑05 dated 14 March 2005.
It was common cause that the Disputes Tribunal had conferred with an inspector of the Builders' Registration Board, in the absence of the parties, and had relied on information conveyed by the inspector in assessing the compensation awarded to the applicant. The applicant contended that the compensation was inadequate and that events subsequent to the hearing showed that there was additional defective work which it was suggested had not been taken into account in determining the quantum of compensation awarded.
The State Administrative Tribunal (the Tribunal) was satisfied that, at the very least, the parties were not aware of the information conveyed by the inspector to the Disputes Tribunal and whether any cost estimate which had been given, included an allowance for what was described as additional defective work. Further, the Tribunal concluded that the course followed had raised natural justice issues such that the decision was attended with sufficient doubt that if leave was not granted, a substantial injustice would result.
In the premises, the Tribunal concluded that the application for leave to review the decision should be granted but that the Disputes Tribunal should be invited pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) to reconsider its decision and if considered appropriate set the matter down for further hearing.
The application
This is an application for an order for leave to review the decision of the Building Disputes Tribunal reflected in an Order to Pay No 137/2004‑05 made on 14 March 2005 in terms of which the respondent was ordered to pay the applicant the sum of $3000.
The application is made pursuant to s 41(2) of the Builders' Registration Act 1939 (WA).
Background
As stated above the Order to Pay No 137/2004‑05 was issued on 14 March 2005.
The application was first lodged on 8 April 2005.
At a directions hearing on 28 April 2005, the Tribunal granted leave to amend the application to include an order for leave to be granted to review the decision of the Disputes Tribunal. The applicant was also directed to file a properly ordered and paginated copy of the application papers on or before 17 June 2005.
On 17 June 2005, a properly ordered and paginated copy of the application papers was filed pursuant to the above direction together with a further application expressed in somewhat different terms, as referred to in the following section.
At the hearing of the application for leave on 11 July 2005 the matter proceeded on the basis of the new application and no objection was taken to this course.
The grounds for review
The original application simply conveyed that following the obtaining of quotations the applicant had found that the ordered sum "does not cover much". It was further stated that the respondent had used an unlicenced roof painter and that an inappropriate paint had been used to coat the roof tiles and further, that the respondent had ignored the Order to Pay.
The new application did not clearly set out what decision was sought from the Tribunal but instead set out what might best be considered to be further grounds for the application. The relevant information set out in the application is as follows.
"DECISION SOUGHT
What decision do you want the SAT to make?
Following the decision of the BRB to award the sum of $3000 against The Renovator we have found additional evidence that shows the damage to the roof to be of a nature that is more severe that [sic] was previously expected. This could not have been seen by the BRB inspector when the site was checked as he did not inspect – climb on the roof or check the paint that was coating tiles on the extension. The roof on the extension has since been found to have tiles incorrectly seated with approx 20 Sq mtrs of tiles not sitting on the Battons [sic] with 30 tiles being incorrect. See attached report from PMC Roofing 8/6/05.
GROUNDS
On what grounds are you seeking review?
Mr Oksuz attended site with Arthur Barker and with an independant [sic] witness present and stated that he knowingly organised the roof to be coated by an unliscenced [sic] roof painter. The extension was done as a part of the job for Mrs Barker and she paid for the front to be done by the same painter. the [sic] roof has been checked by an independant [sic] roof restorer and it is found to have a paint that can not be removed or coated over as this paint is pealing [sic] reasonable repairs can not be completed. Additional to this Mr Oksuz Verbally [sic] undertook to fix other major points that were agreed to in the inspectors [sic] report as well as the additional list agreed to in order to remedy 181/2004‑05 [sic] Based on this information that has been found and the fact the BRB inspector did not thoroughly inspect the roof we ask that the awarded sum be increased to cater for the BJM Quotation to have all points rectified."
The decision under review
No reasons for decision were provided in the application papers. The Tribunal understands that written reasons for decision have not been provided.
The application does include the front sheet of the Disputes Tribunal's book of papers for the hearing of 4 November 2004. However, the documents on the file do not appear to correspond precisely with the index appearing on that front sheet.
Suffice it to say, that on the papers provided to the Tribunal, it is apparent that the respondent failed to comply with an order to remedy No 181/2004‑05, which was issued on 8 November 2004. The respondent made an attempt to carry out some work but a re‑inspection report prepared by Inspector Gronow dated 4 February 2005 shows that much of the work undertaken was unsatisfactory and that there were various items of work apparently not even attempted by the respondent.
Also included are a number of quotations. It is not entirely clear to what work they relate save that one quotation from Carleton Constructions dated 11 August 2004 in an amount of $15 650, including GST, is stated to refer to the rectification work listed in the "document from the Building Disputes Board [sic] dated 26 July 2004". Given that some work was carried out by the respondent it is understandable that there would have been some difficulty in relying on the quotations submitted.
The Tribunal was informed by the applicant that the Disputes Tribunal adjourned to consider the matter on the basis that it would proceed as soon as possible to deliver oral reasons for its decision. When the Disputes Tribunal reconvened later on the day of the hearing, it proceeded to give oral reasons for concluding that the appropriate amount to be awarded was $3000 and in the course of doing so, revealed that it had conferred with an inspector of the Board, presumably Mr Gronow, and had arrived at this conclusion based on the information provided by him.
The applicant stated that after the hearing, arrangements had been made for Mr Oksuz to meet with a builder who was prepared to assist the applicant, namely a Mr Barry Murtha. Mr Oksuz confirmed that out of a concern to resolve the matter he had agreed that Mr Murtha should provide a quotation for the actual work required and that he would then consider paying that amount to the applicant. He was surprised when Mr Murtha's quotation was presented to find that it was for an amount of $11 038 and that it included work not covered by the earlier order to remedy. The additional work was identified as being the cost of painting because the paint used was unsatisfactory and was peeling. The inspection reports show that the roof was covered in moss and that the moss had to be cleaned off and the paint made good. However, there is nothing to suggest that anyone was aware that when the moss was removed (and the respondent had not done this at any stage) it would reveal that the paint was unsatisfactory.
In addition, as I understood the applicant, it was discovered by Mr Murtha that there was a problem with the roof battens and that the tiles were not sitting on them properly. This would require additional work not previously contemplated.
In that regard I note that the reinspection report of 4 February 2005 recorded at paragraph 8(f) of the inspector's observation and comments that:
"It was evident however that a number of the roof battens have now become loose and disengaged from the rafters. The batten along the gutter line adjacent the front door has lifted away from three rafters and there are loose battens in the garage area. The attachment of the battens in these areas is assessed as faulty and unsatisfactory and further works are required by the builder."
In the new application form which has been set out in full above, the applicant describes this additional complaint and refers to a report from PMC Roofing dated 8 June 2005. A copy of a quotation of that date from PMC Roofing Pty Ltd refers, relevantly, to the following.
"(1)Rear extension.
Quote to replace approximate 30 broken or incorrect roof tiles, repair the bottoms of 3 hips, re-lay approximate 20sq mtrs of roof tiles not sitting on battens and repoint hips. $715.00"
It appears, although one cannot be certain because of the different descriptions used, that this is the same work as referred to in the above reinspection report of 4 February 2005.
Considerations
It is common cause between the parties that the Disputes Tribunal acted upon information provided by an inspector of the Builders' Registration Board, without the parties having any opportunity to know what was said, to cross examine, or to offer any comment. That costing may, or may not, have included the full extent of the defects concerning the roof battens.
If the parties are correct in what they say, there has been a breach of basic rules of natural justice. No final finding is made in that regard, given that this is only an application for leave to reveiw, and any final decision should not be made without the benefit of a transcript of the Disputes Tribunal proceedings, and/or the Disputes Tribunal's Reasons for Decision.
It is apparent that a further defect has been uncovered in the course of obtaining further quotations after the hearing before the Disputes Tribunal in March 2005. It is now alleged that the paint used was defective whereas previously, there was a reference only to the respondent's obligation to clean moss off the tiles and to make good the paint, that is, the areas of paint that might be affected by the cleaning operation.
In this Tribunal, by virtue of s 27 of the State Administrative Tribunal Act 2004 (WA) (the SAT Act), the review of a reviewable decision is by way of a hearing de novo. The obligation of this Tribunal is to produce the correct and preferable decision at the time of the decision upon the review. It would therefore be open to receive evidence in relation to any further claims which might be advanced within jurisdiction.
Under s 31 of the SAT Act, the Tribunal may at any stage of the proceeding for the review invite the decision‑maker to reconsider the decision.
By virtue of s 31(2) of the SAT Act upon being invited to reconsider the reviewable decisions, the decision‑maker may either affirm, vary or set aside and substitute a new decision.
If the decision‑maker varies the decision, or sets it aside, and substitutes a new decision, s 31(3) provides that unless the proceeding for review is withdrawn, the proceedings are taken to be for the review of the decision as varied or the substituted decision.
In my view, the appropriate course in this matter is to invite the Disputes Tribunal to reconsider its decision. If the Disputes Tribunal decides to set aside the decision, it will be able to have the inspector of the Board, presumably Inspector Gronow, made available to the parties so that his evidence can be properly given and tested. Given the history of the matter and the involvement of the members Disputes Tribunal, it is more appropriate that any further investigation be conducted by the Disputes Tribunal, rather than this Tribunal. In such circumstances, consideration might be given to holding a directions hearing to ensure that the parties are given every opportunity to present their cases properly at any subsequent hearing.
It follows from the above, that I consider that the Disputes Tribunal decision is attended with sufficient doubt and that a substantial injustice would result if leave to review the decision is not granted.
Order
For the above reasons, the orders made by the Tribunal are as follows:
1.The applicant is granted leave to review the decision of the Building Disputes Tribunal reflected in the Order to Pay No 137/2004‑05 dated 14 March 2005.
2.The Building Disputes Tribunal is invited to reconsider its decision and for that purpose the applicant shall serve on the Building Disputes Tribunal:
(a)a copy of the application VR 226/05 together with all supporting documents;
(b)a copy of this order and the reasons for decision;
such service to be effected forthwith upon receipt of this order and the said reasons for decision.
3.The matter otherwise be adjourned sine die.
4.There be liberty to apply.
I certify that this and the preceding [33] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR C RAYMOND, SENIOR MEMBER
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