Barr and Pyramid Constructions (WA) Pty Ltd
[2017] WASAT 10
•11 JANUARY 2017
BARR and PYRAMID CONSTRUCTIONS (WA) PTY LTD [2017] WASAT 10
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 10 | |
| BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA) | |||
| Case No: | CC:528/2016 | 4 AND 5 OCTOBER 2016 | |
| Coram: | MR C RAYMOND (SENIOR SESSIONAL MEMBER) MR J FISHER (SENIOR SESSIONAL MEMBER) | 11/01/17 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Proceedings successful in respect of one complaint but otherwise dismissed | ||
| B | |||
| PDF Version |
| Parties: | SHANE DAMIAN BARR PYRAMID CONSTRUCTIONS (WA) PTY LTD |
Catchwords: | Building Services (Complaint Resolution and Administration) Act 2011 (WA) Complaints by individual lot owners in strata scheme and by strata company in respect of same alleged faulty and unsatisfactory regulated building services Whether applicant or strata company appropriate complainant Whether regulated building service not carried out in proper and proficient manner, or faulty, or unsatisfactory |
Legislation: | Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5(1), s 11(1)(d) Strata Titles Act 1985 (WA), s 17, s 33 |
Case References: | The Owners of Strata Plan 57895 and Pyramid Constructions (WA) Pty Ltd [2017] WASAT 4 |
Orders | 1. Pursuant to s 36(1)(a) of the Building Services (Complaint Resolution and Administration) Act 2004 (WA) the respondent must on or before 7 March 2017 and at the strata scheme known as Urbano Uno at 128 Brown Street, East Perth, carry out the following remedial work.,(a) Lot 17,Complaint 17.1 - Kitchen and lounge room timber floors bowing consistent with damage by water,Action required,Take all necessary action in a proper and proficient manner to:,(i) remedy the cause and effect of water ingress to the left of the balcony sliding door; and,(ii) repair or replace bowing timbers;,and to achieve an aesthetically acceptable result.,2. The respondent must within the time stated in order 1 above make good any damage resulting from compliance or attempted compliance with order 1.,3. The parties have liberty to apply in the event that any practical difficulty arises in complying with orders 1 or 2 above.,4. The proceedings are otherwise dismissed. |
Summary | The applicant was one of 10 lot owners in a strata scheme comprising 24 lots, who lodged complaints with the Building Commissioner under s 5(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) against the respondent. The strata company had lodged identical complaints.,The Tribunal found in related proceedings, The Owners of Strata Plan 57895 and Pyramid Constructions (WA) Pty Ltd [2017] WASAT 4, that the strata company was entitled to advance the complaints made in these proceedings as relating to common property and consequently that the applicant was not entitled to advance the same claims which were accordingly dismissed. In respect of one complaint item the Tribunal found that the applicant was the appropriate claimant and that the work was faulty or unsatisfactory so that a remedial work order would accordingly issue. Orders were made consistent with these findings. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA) CITATION : BARR and PYRAMID CONSTRUCTIONS (WA) PTY LTD [2017] WASAT 10 MEMBER : MR C RAYMOND (SENIOR SESSIONAL MEMBER)
- MR J FISHER (SENIOR SESSIONAL MEMBER)
- Applicant
AND
PYRAMID CONSTRUCTIONS (WA) PTY LTD
Respondent
Catchwords:
Building Services (Complaint Resolution and Administration) Act 2011 (WA) Complaints by individual lot owners in strata scheme and by strata company in respect of same alleged faulty and unsatisfactory regulated building services Whether applicant or strata company appropriate complainant Whether regulated building service not carried out in proper and proficient manner, or faulty, or unsatisfactory
Legislation:
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5(1), s 11(1)(d)
Strata Titles Act 1985 (WA), s 17, s 33
Result:
Proceedings successful in respect of one complaint but otherwise dismissed
Summary of Tribunal's decision:
The applicant was one of 10 lot owners in a strata scheme comprising 24 lots, who lodged complaints with the Building Commissioner under s 5(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) against the respondent. The strata company had lodged identical complaints.
The Tribunal found in related proceedings, The Owners of Strata Plan 57895 and Pyramid Constructions (WA) Pty Ltd [2017] WASAT 4,that the strata company was entitled to advance the complaints made in these proceedings as relating to common property and consequently that the applicant was not entitled to advance the same claims which were accordingly dismissed. In respect of one complaint item the Tribunal found that the applicant was the appropriate claimant and that the work was faulty or unsatisfactory so that a remedial work order would accordingly issue. Orders were made consistent with these findings.
Category: B
Representation:
Counsel:
Applicant : No Appearance
Respondent : Mr R Shaw
Solicitors:
Applicant : N/A
Respondent : Lavan Legal
Case(s) referred to in decision(s):
The Owners of Strata Plan 57895 and Pyramid Constructions (WA) Pty Ltd [2017] WASAT 4
Introduction
1 The applicant, Mr Shane Damian Barr, lodged a complaint with the Building Commissioner pursuant to s 5(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) relating to a regulated building service provided by Pyramid Constructions (WA) Pty Ltd in the construction of a multistorey strata titled apartment building at 128 Brown Street, East Perth. The strata scheme is known as Urbano Uno. Mr Barr is the owner of strata Lot 17 being one of the apartments in the development which is described in strata plan 57895 registered on 27 January 2016. The strata company, incorporated on such registration occurring, being the Owners of Strata Plan 57895 (strata company), lodged a complaint with the Building Commissioner in respect of the same items of complaint and in respect of many other items of complaint.
2 It appears this complaint and complaints lodged by nine other lot owners completely overlapped the items of complaint made by the strata company to avoid the risk of any complaint item failing by reason of lack of standing. Under s 33 of the Strata Titles Act 1985 (WA) (ST Act) where the proprietors of lots the subject of a scheme are jointly entitled to take proceedings the strata company is expressly empowered to take the proceedings. The owners of such lots are entitled to jointly take proceedings in respect of the common property included within the scheme as common property is held by the proprietors as tenants in common in shares proportional to their unit entitlements (s 17 ST Act). On the other hand, a strata company has no standing to make a claim in respect of damage to a lot the title of which is held by the proprietor thereof.
3 All of these complaints were referred by the Building Commissioner to the Tribunal for determination pursuant to s 11(1)(d) of the BSCRA Act.
4 The 11 separate matters were listed for hearing over three days commencing on 4 October 2016. Due primarily to the extent of agreement reached by the expert witnesses in conferral prior to the hearing in accordance with the Tribunal's usual practices, the hearing was concluded in two days. The matters had not been consolidated. At the commencement of the hearing the Tribunal directed that the matters be heard together and that the evidence be evidence in all matters.
5 In the strata company proceedings, The Owners of Strata Plan 57895 and Pyramid Constructions (WA) Pty Ltd [2017] WASAT 4, the Tribunal dealt with all of the complaints duplicated in these proceedings relating to Lot 17 and we incorporate by reference the reasons for decision in that matter. The strata company has been ordered in those proceedings to give a copy of the Tribunal's reasons for decision to all applicants who have applied for orders in respect of the same items of complaint, within seven days of receipt of those reasons for decision.
6 The Tribunal found the strata company was entitled to a remedial work order in respect of two items of complaint. The remaining items of complaint, save one, were dismissed. The exception related to complaint item 17.1 concerning the kitchen and lounge room timber floors bowing consistent with water damage at the left of the sliding door. The Tribunal accepted that water ingress through the balcony sliding door was a contributing cause of the timber bowing. The Tribunal found that this evidenced faulty or unsatisfactory building work within the lot itself so that the strata company was not entitled to advance the complaint which properly could be advanced by Mr Barr. A remedial work order will accordingly issue in respect of this item of complaint. As the Tribunal accepted that the strata company could advance all other claims as they related to common property it follows that the Mr Barr is not entitled to do so in his own right, and all other items of complaint raised by Mr Barr fall to be dismissed.
Orders
The Tribunal will accordingly issue orders:
1. Pursuant to s 36(1)(a) of the Building Services (Complaint Resolution and Administration) Act 2004 (WA) the respondent must on or before 7 March 2017 and at the strata scheme known as Urbano Uno at 128 Brown Street, East Perth, carry out the following remedial work.
(a) Lot 17
Complaint 17.1 - Kitchen and lounge room timber floors bowing consistent with damage by water
Action required
Take all necessary action in a proper and proficient manner to:
(i) remedy the cause and effect of water ingress to the left of the balcony sliding door; and
(ii) repair or replace bowing timbers;
and to achieve an aesthetically acceptable result.
3. The parties have liberty to apply in the event that any practical difficulty arises in complying with orders 1 or 2 above.
4. The proceedings are otherwise dismissed.
I certify that this and the preceding [6] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR C RAYMOND, SENIOR SESSIONAL MEMBER
0
1
2