BETHAM and TENDRS PTY LTD - [2024] WASAT 123

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   BETHAM and TENDRS PTY LTD [2024] WASAT 123
MEMBER:   MR M BENTER, MEMBER
MR S BURNS, SESSIONAL MEMBER

HEARD:   11 SEPTEMBER 2024
DELIVERED          :   21 NOVEMBER 2024
FILE NO/S:   CC 369 of 2024
BETWEEN:   MICHAEL BETHAM
Applicant
AND
TENDRS PTY LTD
Respondent

Catchwords:

Building Services (Complaint Resolution and Administration) Act 2011 (WA) - Home building work contract complaint - Failure by respondent to engage in proceedings - Whether builder breached contract to install swimming pool - Whether builder terminated contract without proper basis - Appropriate HBWC remedy order

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5(2), s 41, s 43
Corporations Act 2001 (Cth), s 109X, s 142, s 146, s 201, s 203AB(1), s 203AB(2)
Home Building Contracts Act 1991 (WA), s 3, s 17, Pt 2
State Administrative Tribunal Act 2004 (WA), s 63(2)

Result:

Application allowed in part

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	No Appearance

Solicitors:

Applicant	:	N/A
Respondent	:	N/A

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

Deshmukh and Distinctive Building Services Pty Ltd [2024] WASAT 15
Hutton, in the matter of Big Village Australia Pty Ltd (Administrators Appointed) [2023] FCA 48
Louden and Changeovers Pty Ltd (ABN 18 146 623 190) [2021] WASAT 164
Total Waste Management Pty Ltd v The City of Kalgoorlie-Boulder [2010] WASC 234

REASONS FOR DECISION OF THE TRIBUNAL:

Background

This is an application by the applicant, Mr Betham, seeking that orders be made against the respondent, Tendrs Pty Ltd, in relation to the supply and installation of a below ground swimming pool (the Works) that was contracted to be completed by the respondent at the applicant's home in Leeming.
After partly undertaking the Works, the respondent gave notice that it was terminating the Contract for the Works and left the site with the Works unfinished. The Works were ultimately completed by the applicant and, in this application, he seeks orders requiring the respondent to pay expenses and other compensation that he says were caused by the respondent's failure to complete the Works as contracted.

Evidence at the final hearing

The following witnesses gave evidence at the hearing:
(a)The applicant, Mr Betham;
(b)The applicant's partner, Ms Sheryle Ramsay; and
(c)Mr Grant Richardson, the owner and operator of a pool business called Pool Matrix, who provided advisory services to the applicant and undertook a small amount of work in relation to the completion of the swimming pool.
The following documents were marked as Exhibits in the course of the final hearing:
Exhibit 1:The hearing book prepared by the Tribunal for the purposes of the final hearing, comprising the application form and attachments lodged with the Tribunal by the Building Commissioner at the commencement of the proceedings, relevant orders made by the Tribunal and the documents lodged in the proceedings by the applicant pursuant to the Tribunal's orders;
Exhibit 2:Letter dated 10 September 2024…

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: [2024] WASAT 123
Decision Date: 21 NOVEMBER 2024

CaseChat Overview and Summary

The matter before the tribunal was a complaint under the Building Services (Complaint Resolution and Administration) Act 2011 (WA) involving BETHAM, a homeowner, and TENDRS PTY LTD, a building company. The dispute centred on whether TENDRS PTY LTD breached their contract to install a swimming pool and whether they terminated the contract without proper basis. BETHAM sought a Home Building Work Contract (HBWC) remedy order. The tribunal was tasked with determining the validity of the complaint and the appropriate remedy.

The legal issues before the tribunal were multifaceted. Firstly, it had to ascertain whether the respondent had indeed breached the contract by failing to properly install the swimming pool. Secondly, the tribunal needed to examine whether the respondent had valid grounds for terminating the contract. Additionally, it had to determine whether the respondent had complied with its obligations under the Corporations Act 2001 (Cth) concerning the notification of changes in registered office and principal place of business. The tribunal also needed to consider whether the respondent had failed to attend the hearing in accordance with the State Administrative Tribunal Act 2004 (WA).

The tribunal concluded that the respondent had breached the contract by failing to properly install the swimming pool and had terminated the contract without proper grounds. It found that the orders posted to the respondent at the Marangaroo address constituted proper service of those documents on the respondent, as per s 109X of the Corporations Act. The tribunal also determined that the hearing could proceed in the absence of the respondent, as per s 63(2) of the State Administrative Tribunal Act 2004 (WA). In relation to the resignation of Mr Baverstock as a director, the tribunal found that his resignation was ineffective as it would have left the company without the required one director, in contravention of ss 201 and 203AB(1) of the Corporations Act.

The tribunal ordered that TENDRS PTY LTD pay BETHAM $3,000 as compensation for the defective work and $5,000 as compensation for the distress and inconvenience caused. The tribunal also ordered that TENDRS PTY LTD pay BETHAM's costs of the complaint, being $1,750.

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

All Australian companies have obligations under the Corporations Act 2001 (Cth) (Corporations Act) to ensure that accurate information is provided to ASIC in respect of the company, including:(a)the requirement in s 142 to lodge a notice of change of registered office no later than 28 days after the change occurs; and (b)the requirement in s 146 to lodge a notice of change to the principal place of business no later than 28 days after the change occurs. As is plain from the company extract, the Marangaroo address has been recorded on the records of ASIC as:(a)the registered office of the respondent at all times from 30 July 2023; and(b)the principal place of business of the respondent at all times from 7 January 2015. Section 109X of the Corporations Act provides relevantly that, for the purposes of any law, a document may be served on a company by leaving it at, or posting it to, the company's registered office. In the circumstances set out above, the Tribunal finds that the orders posted to the respondent at the Marangaroo address constitute proper service of those documents on the respondent. Section 63(2) of the State Administrative Tribunal Act 2004 (WA) states:If a person, including a party, to whom notice has been given in accordance with the rules fails to attend, the hearing may be held in the absence of that person. On the basis of the above matters, it was determined by the Tribunal at the commencement of the final hearing that the hearing should proceed in the absence of the respondent. In relation to Mr Baverstock purportedly ceasing as a director of the respondent, the Tribunal notes that:(a)the ASIC company extract does not disclose the basis upon which Mr Baverstock is recorded as having ceased to be a director of the company; and(b)the company extract otherwise records that Mr Baverstock is a previous director and previous company secretary of the respondent and that, in respect of both roles, the 'cease date' is recorded as 6 March 2024, being the same date that the building complaint the subject of this application was accepted by the Building Commissioner's delegate.[3][3] Exhibit 1, page 14. It is not possible from the evidence before the Tribunal to ascertain the basis upon which Mr Baverstock 'ceased' to be a director of the respondent. However, to the extent that Mr Baverstock sought to resign as a director of the respondent, the provisions of the Corporations Act render any such resignation ineffective. In relation to the requirement for a company to always have at least one director, the Corporations Act provides relevantly:(a)at s 201, that a proprietary company must have at least one director; and(b)at s 203AB(1) that the 'resignation of a director of a company does not take effect if, at the end of the day that the resignation is to take effect, the company does not have at least one director'. While s 203AB(2) of the Corporations Act provides, in effect, that subsection (1) does not prevent the resignation of a director taking effect on or after the day the winding up of the company is taken to have begun, that exception is not relevant in respect of the respondent in this matter. The company extract clearly establishes that the respondent remained registered as at the date of the extract and there is no reference to any steps in respect of winding up of the company having been taken.