BARTHOLOMEUSZ and HARRIS - [2020] WASAT 77

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   BARTHOLOMEUSZ and HARRIS [2020] WASAT 77
MEMBER:   MS R PETRUCCI, MEMBER
MR R EASTON, SENIOR SESSIONAL MEMBER

HEARD:   15 MAY 2020
DELIVERED          :   22 JULY 2020
FILE NO/S:   CC 1890 of 2019
BETWEEN:   ROLAND BARTHOLOMEUSZ
Applicant
AND
LEE HARRIS
Respondent

Catchwords:

Building Services (Complaint Resolution and Administration) Act 2011 (WA) - Regulated building service complaint - Whether building service not carried out in a proper and proficient manner or is faulty or unsatisfactory - Whether order to remedy or order to pay is appropriate - Application for costs - Turns on its own facts

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(1), s 6(1), s 7(1), s 9(1), s 10, s 11(1), s 11(1)(d), s 36, s 38, s 49, s 49(1), s 51
Building Services (Complaint Resolution and Administration) Regulations 2011 (WA), reg 5
State Administrative Tribunal Act 2004 (WA), s 9, s 46(1), 46(2), s 87(1), s 87(2), s 87(6)

Result:

Application partly successful

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	In Person

Solicitors:

Applicant	:	N/A
Respondent	:	N/A

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

Brodun Construction and Love [2008] WASAT 174
Gemmill Homes Pty Ltd v Sanders [2018] WASC 179
J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S)
Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S)
Nelson v Mardesic (1998) 22 SR (WA) 42
Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [No 2] [2008] WASAT 302
Sanders and Gemmil Homes Pty Ltd [2017] WASAT 41
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

This is an application under the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act).
Mr Roland Bartholomeusz (the owner or applicant) is the owner of 3 Graelou Road, Lesmurdie (the property).
On 25 May 2019, the owner lodged a complaint against Mr Lee Harris, (the builder or respondent), who trades under the name, 'Harris Asbestos Removal' with the Building Commissioner regarding the removal of asbestos cement material (A.C.M.) roof sheeting and the installation of Colorbond roof sheeting at his property. In his complaint, the owner stated:
Mr Harris has failed to complete all the work he agreed on, relating to roof super six asbestos removal and a colourbond roof replacement. He has also taken inordinately long, 4months, to get to where we are at present, near completion, having commenced the work in the first week of January. I owe Mr Harris a balance of $2000- which I am not willing to pay until the work is completed. I have told him that if he is unwilling to complete the work I will have others do so and deduct those costs from what I owe him, assuming those costs are less than $2,000-. The outstanding work,…

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.

Continue reading BARTHOLOMEUSZ and HARRIS

Details

AGLC: BARTHOLOMEUSZ and HARRIS [2020] WASAT 77
Case: [2020] WASAT 77
Decision Date: 22 JULY 2020

CaseChat Overview and Summary

The case of Bartholmeusz and Harris involved a complaint under the Building Services (Complaint Resolution and Administration) Act 2011 (WA) regarding the quality of building services provided. The applicant, Bartholmeusz, alleged that the respondent, Harris, did not carry out the building services in a proper and proficient manner, resulting in defects that were faulty or unsatisfactory. The dispute reached the Tribunal, which had to decide on the appropriate remedy order and whether the relationship between the parties had irretrievably broken down, which would preclude a remedial order. Additionally, the Tribunal needed to determine whether an order to remedy or an order to pay was appropriate and whether an application for costs should be granted.

The Tribunal considered several factors in deciding the appropriate remedy order. It examined whether the relationship between the parties had irretrievably broken down, a critical factor in determining the likelihood of achieving finality in the dispute. The Tribunal noted that the applicant had not lost confidence in the builder's ability to perform remedial work and that the builder had not been refused access or demonstrated incompetence. Although there had been a breakdown in their relationship, the Tribunal concluded that it was not irretrievable enough to warrant denying the builder the opportunity to undertake the remedial work. The Tribunal also took into account the builder's willingness to arrange for someone else to do the work on his behalf.

Based on its findings, the Tribunal decided that an order to remedy was appropriate. It reasoned that while there had been a breakdown in the relationship between the parties, it was not at a stage where requiring the builder to undertake the remedial work would result in ongoing dispute. The Tribunal further decided that the builder should be ordered to undertake the remedial work and that costs should be awarded to the applicant for the application.

The Tribunal's final orders included a direction for the builder to undertake the remedial work within a specified period and an order for the builder to pay the applicant's costs for the application. These orders were based on the Tribunal's determination that the relationship between the parties had not irretrievably broken down and that the builder was capable of performing the necessary remedial work.

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

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Ratio Decidendi

Legal Principle Established

The Tribunal in considering what building remedy order to make has taken into account the following principles the Tribunal enunciated in Trengrove and Celebration Nominees Pty Ltd [2012] WASAT 65; (2012) 80 SR (WA) 77 (Trengrove) as set out in Gemmill at [33]:…(a)At the heart of the issue as to what order is appropriate is the question as to whether the relationship between the parties has irretrievably broken down. The fact that it is the builder asserting that the relationship has broken down does not matter. The principles equally apply whether it is a builder or an owner making the assertion. This is an important consideration for a number of obvious reasons, including the primary one, namely, to ensure some finality in litigation. If the Tribunal were to order remedial work in circumstances where the relationship between the parties has irretrievably broken down, it is likely not to result in finality of the disputes arising between those parties.(b)The Tribunal looks to the relationship between the parties and whether the owner has lost confidence in the builder, the willingness or otherwise of the builder to perform remedial works, whether it has performed remedial works which have been unsatisfactory, whether the builder has been refused access, and whether, for example, the extent of the remedial work itself evidences perhaps a lack of competence or ability on the part of the builder which justifies the owner losing confidence in the builder's ability. There is no right or requirement on a party to a complaint to elect the order(s): Gemmill at [131] and [135][139]. While the Tribunal notes the owner's concern regarding the quality of the builder's work, Mr Jones in his IBR, where he set out what action was required to remedy each defect, expressly stated that the respondent (the builder) was to undertake the rectification work. Mr Jones did not suggest that the builder was not competent to undertake the remedial work either in his report or in giving his evidence at the final hearing. Further, while the builder's personality may not be to the owner's liking, that is not, in the Tribunal's view, an irretrievable breakdown of the owner builder relationship and a personality difference is not in itself enough to not allow the builder the opportunity to undertake the remedial works. The statement made by the owner in his complaint to the Building Commissioner, on 7 May 2019 (page 42 of Exhibit 1) that he told the builder that 'if he [the builder] is unwilling to complete the work' that 'I [the owner] will have to do so' does not suggest the owner refuses to have the builder undertake the remedial work. The builder, although now only doing smaller jobs, stated that he could organise for someone to do the remedial work on his behalf. While the Tribunal accepts that there has been a breakdown in their relationship, which is a natural result of the dispute that has arisen between the owner and the builder, the Tribunal is not of the view that the breakdown is so irretrievable or at a stage where to require the builder to undertake the remedial work would result in ongoing dispute between them: Trengrove at [36].