BGC CONSTRUCTION and VAGG & ANOR [2006] WASAT 367
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 367 | |
| BUILDERS' REGISTRATION ACT 1939 (WA) | |||
| Case No: | CC:804/2006 | 21 AUGUST 2006 | |
| Coram: | MR C RAYMOND (SENIOR MEMBER) MR T CAREY (MEMBER) | 14/12/06 | |
| 23 | Judgment Part: | 1 of 1 | |
| Result: | Leave granted to bring application for review Application upheld and consequential order made Directions programming any application for costs | ||
| B | |||
| PDF Version |
| Parties: | BGC CONSTRUCTION JOHN RAYMOND VAGG LINDA ROBERTS |
Catchwords: | Building disputes Review of decision of Building Disputes Tribunal Liquidated damages for noncompletion within stipulated period Meaning of "day" for purpose of liquidated damages clause Whether calendar day or working day Interest under s 32 and s 34 Supreme Court Act 1935 (WA) Appropriate rate of interest Whether those sections apply to Building Disputes Tribunal Whether Building Disputes Tribunal a "court" for purposes of those sections |
Legislation: | Anti-Discrimination Act 1998 (Tas) Australian Constitution (Cth), s 77(iii) Builders' Registration Act 1939 (WA), s 12A, s 28,s 35, s 36, s 36(1), s 36(2), s 38(1), s 38(3), s 39, s 40, s 41, s 43, s 44(3), s 45, Builders Registration Amendment Act 1991 (WA), s 37(2) Builders Registration Amendment Bill 1991 (WA) Fair Trading Act 1995(Vic) Home Building Contracts Act 1991 (WA), s 9(1), s 11, s 17(4), s 22, s 23, s 28 Industrial Relations Act 1979 (WA) State Administrative Tribunal Act 2004 (WA), Div 3, Pt III, s 87, s 87(2), s 105 Suitors Fund Act 1951 (NSW) Suitors Fund Act 1964 (WA) Supreme Court Act 1935 (WA), s 25(9), s 31, s 31(2), s 32, s 32(1), s 34 Supreme Court Act 1986 (Vic), s 33 Trade Practices Act 1974 (Cth) |
Case References: | Australian Postal Commission v Dao (No 2) (1986) 69 ALR 125 BGC Residential Pty Ltd and Parker [2006] WASAT 281 Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 Commonwealth of Australia v Wood (2006) 148 FCR 276 Commonwealth of Australia v Wood [2006] FCA 60 (9 February 2006) Forge v Australian Securities and Investment Commission [2006] HCA 44 Global Network Services Pty Ltd v Legion Telecall Pty Ltd [2001] NSWCA 279 McLoughlin & Anor v Western Power Corporation 80 WAIG 3084 North Australian Aboriginal Legal Aid Service Inc v Bradley [2004] 206 ALR 315 Orellana-Fuentes v Standard Knitting Mills Pty Ltd [2003] 57 NSWLR 282 R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] 123 CLR 361 Roads Corporation v Melbourne Estates Finance Co Pty Ltd (No 2) [1993] 2 VR 620 Shell Company of Australia Limited v Federal Commission of Taxation [1930] 44 CLR 530 Smith & Anor v Fiebig as executrix of the estate of the late Jean Drysdale-Green [2003] WADC 184 Tangent Nominees Pty Ltd v Edwards & Anor [2006] WASC 45 Trust Company of Australia Limited (trading as Stockland Property Management) v Skiwing Pty Ltd [2006] NSWCA 185 Volpe v Greenhill Homes Pty Ltd & Ors 12 VR… |
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Details
- AGLC
- BGC Construction and Vagg & Anor [2006] WASAT 367
- Case
- [2006] WASAT 367
- Decision Date
CaseChat Overview and Summary
BGC Construction sought a review of a decision made by the Building Disputes Tribunal which ruled that they were liable to pay Vagg and another respondent $7,772.35 for non-completion of a construction project within the stipulated period. The Supreme Court of Western Australia was tasked with determining the correct interpretation of the liquidated damages clause and the applicable interest rate.
The primary legal issues centred around the interpretation of the term "day" within the liquidated damages clause, whether it referred to a calendar day or a working day. Additionally, the court had to decide the appropriate rate of interest to be applied under sections 32 and 34 of the Supreme Court Act 1935 (WA), and whether these sections applied to the Building Disputes Tribunal, considering it a "court" for these purposes.
The court found that the term "day" in the liquidated damages clause should be interpreted as a working day, not including weekends or public holidays. As for the interest rate, the court held that sections 32 and 34 of the Supreme Court Act 1935 (WA) did not apply to the Building Disputes Tribunal, and thus, the tribunal was not considered a "court" for these purposes. The court subsequently determined the appropriate interest rate based on prevailing market rates.
The court granted leave to review the Building Disputes Tribunal's decision and remitted the matter back to the tribunal for reconsideration in light of the court's findings.
The primary legal issues centred around the interpretation of the term "day" within the liquidated damages clause, whether it referred to a calendar day or a working day. Additionally, the court had to decide the appropriate rate of interest to be applied under sections 32 and 34 of the Supreme Court Act 1935 (WA), and whether these sections applied to the Building Disputes Tribunal, considering it a "court" for these purposes.
The court found that the term "day" in the liquidated damages clause should be interpreted as a working day, not including weekends or public holidays. As for the interest rate, the court held that sections 32 and 34 of the Supreme Court Act 1935 (WA) did not apply to the Building Disputes Tribunal, and thus, the tribunal was not considered a "court" for these purposes. The court subsequently determined the appropriate interest rate based on prevailing market rates.
The court granted leave to review the Building Disputes Tribunal's decision and remitted the matter back to the tribunal for reconsideration in light of the court's findings.
Orders
Orders of the court
1. The applicant is granted leave to review the decision of the Building Disputes Tribunal made on 18 May 2006 that the applicant pay the respondents the sum of $7,772.35 within 14 days.
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
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