BGC Constructions Pty Ltd and Vagg & Anor

[2005] WASAT 265

JURISDICTION	: STATE ADMINISTRATIVE TRIBUNAL
STREAM	: VOCATIONAL REGULATION
ACT	:  BUILDERS' REGISTRATION ACT 1939 (WA)
CITATION	:  BGC CONSTRUCTIONS PTY LTD and VAGG & ANOR [2005] WASAT 265
MEMBER	:  MR C RAYMOND (SENIOR MEMBER) DR B DE VILLIERS (MEMBER) MR M SPILLANE (MEMBER)
HEARD	: 16 JUNE 2005
DELIVERED	: 4 OCTOBER 2005
FILE NO/S	:  VR 210 of 2005
BETWEEN	: BGC CONSTRUCTIONS PTY LTD

Applicant

AND

JR VAGG
L ROBERTS

Respondents

Catchwords:

Hearing of application for leave and review of decision of Building Disputes

Tribunal - Whether proceedings time-barred - Effect of admission

Legislation:

Builders' Registration Act 1939 (WA), s 41
Home Building Contracts Act 1991 (WA), s 17(2b)
Limitation Act 1935 (WA), s 44(1), s 44(3)

[2005] WASAT 265

Result:

Decision under review affirmed

Category: B

Representation:

Counsel:

Applicant	:	Mr C Marsh
Respondents	:	Self-represented

Solicitors:

Applicant	:	N/A
Respondents	:	N/A

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

Bucknell v Commercial Banking Co of Sydney Ltd (1937) 58 CLR 155
Busch v Stevens (1962) 1 ALL ER 412
Do Carmo v Ford Excavations Pty Ltd (1984)154 CLR 234
Hepburn v McDonnell (1918) 25 CLR 199

Lonsdale Sand and Metal Pty Ltd v Federal Commissioner of Taxation (1998)

162 ALR 220

Case(s) also cited:

Nil

[2005] WASAT 265

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of the Tribunal's decision

1              The applicant applied for leave to review a decision of the Building

Disputes Tribunal (Disputes Tribunal) dated 8 March 2005. The application for leave to review and the review itself were heard together.

2              The Disputes Tribunal had found that an admission had been made

by the applicant builder, the effect of which was that a complaint had been made to the Disputes Tribunal within three years from the time when the cause of action arose as required by s 17(2) of the Home Building Contracts Act 1991 (WA).

3              The respondents' case was that the Disputes Tribunal had determined

the matter on a basis which had not been argued before it, and that the applicant had, therefore, been denied the opportunity to tender documents, which, it was asserted, would have resulted in a different conclusion.

4              As the case was conducted before the Disputes Tribunal, the parties

had concentrated on the date on which practical completion had been achieved as the date on which the cause of action accrued. The claim was for damages for delay in completion of the respondents' dwelling by the applicant. The Disputes Tribunal had found that the running of time had been extended by a written admission made by the applicant. The parties had not been given an opportunity to address this issue.

5              The Tribunal found that the further evidence, which the applicant

indicated it would have adduced, would not have affected the operation of
the subsequent admission relied on by the Disputes Tribunal.

6              The Tribunal considered that the limitation issue raised was

sufficiently wide to permit the Disputes Tribunal to decide the matter on the basis which…