Bhowaniah and Essential First Choice Homes Pty Ltd (No 2)
[2017] WASAT 30
•17 FEBRUARY 2017
BHOWANIAH and ESSENTIAL FIRST CHOICE HOMES PTY LTD (No 2) [2017] WASAT 30
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 30 | |
| BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA) | |||
| Case No: | CC:1520/2016 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MS C WALLACE (SENIOR MEMBER) | 17/02/17 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Complaints made by jointapplicant Mr Poidevin are dismissed | ||
| B | |||
| PDF Version |
| Parties: | DANUSHA BHOWANIAH MARK POIDEVIN ESSENTIAL FIRST CHOICE HOMES PTY LTD |
Catchwords: | Legal standing of Mr Poidevin Principles of statutory construction Meaning of 'interests adversely affected' |
Legislation: | Building Services Complaint (Resolution and Administration) Act 2011 (WA), s 5, s 5(1), s 5(2), s 11(1)(d), s 36, s 36(1)(a), s 51 Building Services Complaint (Resolution and Administration) Regulations 2011 (WA), reg 5 Home Building Contracts Act 1991 (WA), s 3 State Administrative Tribunal Act 2004 (WA), s 39, s 39(1)(d), s 60(2) |
Case References: | Eclipse Resources Pty Ltd v The State of Western Australia (No 4) [2016] WASC 62 |
Orders | 1. The complaints, to the extent that they have been made by Mr Poidevin as joint applicant, are hereby dismissed except as to costs. |
Summary | The applicants lodged a complaint with the Building Commissioner in respect of a regulated building service performed by the respondent. That complaint was referred to this Tribunal by the Building Commissioner for determination. A preliminary issue arose as to whether Mr Poidevin, a joint applicant in the proceeding, had legal standing. The complaint lodged by the applicants comprised a mixture of home building works contract complaints and building service complaints. Given that Mr Poidevin was not a contracting party to the relevant home building works contract, he was found not to have legal standing in respect of the home building works contract complaints. In relation to the issue as to Mr Poidevin's legal standing to make a building service complaint, the Tribunal was required to consider whether Mr Poidevin had an 'interest' which has been 'adversely affected' by the respondent's performance of the regulated building service. Given that Mr Poidevin failed to identify an interest which he contended had been adversely affected, he was found not to have the requisite legal standing to make a building service complaint. The complaints, as made by Mr Poidevin, were therefore dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA) CITATION : BHOWANIAH and ESSENTIAL FIRST CHOICE HOMES PTY LTD (No 2) [2017] WASAT 30 MEMBER : MS C WALLACE (SENIOR MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 17 FEBRUARY 2017 FILE NO/S : CC 1520 of 2016 BETWEEN : DANUSHA BHOWANIAH
- MARK POIDEVIN
Applicants
AND
ESSENTIAL FIRST CHOICE HOMES PTY LTD
Respondent
Catchwords:
Legal standing of Mr Poidevin Principles of statutory construction Meaning of 'interests adversely affected'
Legislation:
Building Services Complaint (Resolution and Administration) Act 2011 (WA), s 5, s 5(1), s 5(2), s 11(1)(d), s 36, s 36(1)(a), s 51
Building Services Complaint (Resolution and Administration) Regulations 2011 (WA), reg 5
Home Building Contracts Act 1991 (WA), s 3
State Administrative Tribunal Act 2004 (WA), s 39, s 39(1)(d), s 60(2)
Result:
Complaints made by jointapplicant Mr Poidevin are dismissed
Summary of Tribunal's decision:
The applicants lodged a complaint with the Building Commissioner in respect of a regulated building service performed by the respondent. That complaint was referred to this Tribunal by the Building Commissioner for determination. A preliminary issue arose as to whether Mr Poidevin, a joint applicant in the proceeding, had legal standing. The complaint lodged by the applicants comprised a mixture of home building works contract complaints and building service complaints. Given that Mr Poidevin was not a contracting party to the relevant home building works contract, he was found not to have legal standing in respect of the home building works contract complaints. In relation to the issue as to Mr Poidevin's legal standing to make a building service complaint, the Tribunal was required to consider whether Mr Poidevin had an 'interest' which has been 'adversely affected' by the respondent's performance of the regulated building service. Given that Mr Poidevin failed to identify an interest which he contended had been adversely affected, he was found not to have the requisite legal standing to make a building service complaint. The complaints, as made by Mr Poidevin, were therefore dismissed.
Category: B
Representation:
Counsel:
Applicants : Self Represented
Respondent : Mr M Lang
Solicitors:
Applicants : N/A
Respondent : Jackson McDonald
Case(s) referred to in decision(s):
Eclipse Resources Pty Ltd v The State of Western Australia (No 4) [2016] WASC 62
Introduction
1 This matter involves a complaint made against the respondent originally lodged solely by Ms Danusha Bhowaniah (joint applicant in the proceeding) with the Building Commissioner on 9 May 2016, pursuant to s 5(1) and s 5(2) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act), raising allegations of faulty or unsatisfactory workmanship in relation to a regulated building service, as well as allegations of breaches of contract in respect of a home building work contract. The dwelling the subject of the complaint is located at 230 Dalmilling Drive, Ellenbrook in the State of Western Australia.
2 Ms Bhowaniah and the respondent entered into a Lump Sum Building Contract in the standard HIA Form which was executed by them on 24 July 2015. On 7 September 2016 Ms Bhowaniah emailed Ms Knight at the Building Commission and sought to add Mr Mark Poidevin as a joint applicant to the complaint. No reasons for that request were provided in that email correspondence. By return email on 8 September 2016, Ms Knight notified Ms Bhowaniah that Mr Mark Poidevin had been added as a joint applicant to the complaint.
3 On 22 September 2016 the complaint was referred to the Tribunal pursuant to s 11(1)(d) of the BSCRA Act. The complaints which have been referred by the Building Commissioner to this Tribunal are as follows:
1) The entire house inadequate flashing and no flashing above garage door.
2) Garage piers separating from garage after two weeks being laid. Vertical cracks running in mortar from floor to roof.
3) Entire house water pipe: 16 millimetre water pipe was installed instead of 18 millimetre as requested by owner.
4) Issue with written agreement builder not providing photos of repairs as they stated and agreed to in writing.
5) Entire house bricks approximately 500 or more bricks are chipped and mortar joints are under 5 millimetres and over 15 millimetres. Bricks are uneven on the outside corner of the garage and ensuite wall. Bricks are not sitting vertical to each other.
6) Laundry, ensuite and master bedroom slab penetration pipe located in slab not central to inner leaf of brickwork. Brickwork has been cut to chase the pipework which will provide less strength to the wall.
7) Front main entrance door timber frame damage.
8) Garage strut being split where nailed.
9) In hallway entrance of kitchen/dining (roof) strut hand saw cuts in it providing less strength and support to the whole beam.
10) Above bedroom 3 strut cracked, damaged split.
11) Contract issue builder changed plans whenever they wanted. Changes were made without the acknowledgment of the owner and then variations were issued and despite not signed the changes were made. Piers in garage do not line up, the piers are left offset to each other.
12) Garage floor there has not been any ableflex isolation joint material or the like installed between the garage floor and the brickwall of the house.
13) Laundry area damaged stitching and laundry area due to breach of SAT final order of 18 May 2016.
4 All of the above complaints with the exception of those referred to at numbered paragraph 3, 4 and 11, are building service complaints under s 5(1) of the BSCRA Act whereby the applicants are alleging that the relevant building works are faulty, or unsatisfactory, or work which has not been carried out in a proper or proficient manner. The complaint items referred to in paragraphs 3 and 11 above are contractual in nature in that they allege breaches of the home building works contract. The complaint item referred to in paragraph numbered 4 appears not to fall within the jurisdiction of s 5 of the BSCRA Act and, in the Tribunal's preliminary view, is misconceived and/or lacking in substance. However, it is not relevant to consider that matter further in these reasons.
5 The proceeding was listed for an initial directions hearing before the Tribunal on 11 October 2016. At that directions hearing, two preliminary matters were raised with the parties including the question as to whether Mr Poidevin had legal standing as joint applicant in the proceeding. That issue was the subject of affidavit material and submissions filed by the parties. The parties were informed on 16 December 2016 that the Tribunal had decided that it was appropriate to determine the preliminary issue of Mr Poidevin's legal standing, on the documents, pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) and the decision was therefore reserved on that date. These reasons address that preliminary issue.
Relevant legal framework and principles
6 In relation to what will be described as 'building service complaints', s 5(1) of the BSCRA Act provides as follows:
Subject to the regulations, a person may make a complaint to the Building Commissioner about a regulated building service not being carried out in a proper and proficient manner or being faulty or unsatisfactory.
7 In relation to a 'home building work contract complaint' (HBWC complaint), s 5(2) of the BSCRA Act provides as follows:
An owner or builder under a home building work contract may make a complaint to the Building Commissioner about a matter referred to in the Home Building Contracts Act 1991 section 17 or 20 or Schedule 1 clause 5.
8 In addition, in relation to building service complaints, reg 5 of the Building Services (Complaint Resolution and Administration) Regulations 2011 (WA) (BSCRA Regulations) provides as follows:
A building service complaint about the carrying out of a regulated building service may only be made by a person whose interests are being, or have been, adversely affected by the carrying out of the regulated building service.
9 In relation to HBWC complaints, relevantly, the Home Building Contracts Act 1991 (WA) (HBC Act) provides in s 3 as follows:
home building work contract means a contract between a builder and an owner for the performance by the builder of home building work[;]
owner in relation to a contract means the person for whom or which home building work is to be performed under the contract[.]
10 Although the position on who can make a HBWC complaint is fairly clear from the relevant excerpts of the legislation set out above, the question as to who can make a building service complaint deserves closer examination. The key question is whether the person making the building service complaint is a person whose 'interests' are currently being, or have been, 'adversely affected' by the carrying out of the regulated building service.
11 In the majority of building complaints lodged with the Building Commissioner and referred to this Tribunal, this question is easily answered because the regulated building service has been performed pursuant to either a written or oral contract entered into by the person making the complaint. However, the words 'adversely affected' are broad enough to include persons who are not party to the relevant contract and may include, for example, subsequent home owners who purchase a home either built for the previous owner, or in relation to which certain works have been undertaken for the previous owner, which the subsequent owner alleges to have not been carried out in a proper and proficient manner or which is faulty or unsatisfactory. In such an example the subsequent home owner may have legal standing to make a building service complaint on the basis that their interests are adversely affected if the home requires remedial works to be performed.
12 However, the current proceeding requires the Tribunal to consider whether the relevant wording of reg 5 of the BSCRA Regulations is broad enough to afford other persons legal standing to make a building service complaint in circumstances where they are not the home owner.
13 The principles of statutory construction are well established and are conveniently set out in Eclipse Resources Pty Ltd v The State of Western Australia (No 4) [2016] WASC 62 at [537] [543] (Beech J):
537 The principles of statutory construction are well-known, and were not in dispute in this case.
538 The proper construction of a statute is 'reached by the application of rules of interpretation accepted by all arms of government in the system of representative democracy'.
539 In the process of statutory construction, primary attention must be directed to the text of the statutory provisions.
540 In City of Kwinana v Lamont, the court said:
The High Court of Australia has iterated, and reiterated, that the starting point and ending point for the task of statutory construction is the statutory text. The context, including legislative history and extrinsic materials, has utility only to the extent that it assists in fixing the meaning of the statutory text: Thiess v Collector of Customs [2014] HCA 12 [22] (the court); Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 87 ALJR 98, 107 [39] (the court); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, 46 - 47 [47] (Hayne, Heydon, Crennan & Kiefel JJ). The duty of a court is to give the words of the statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, but not universally, that meaning will correspond with the grammatical meaning of the provision: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [78].
541 The language of the words of the statute must be interpreted having regard to their context. Part of that context is the purpose of the legislation insofar as it may be discerned from what the legislation says, as distinct from any assumption about the desired or desirable reach or operation of relevant provisions. A statutory purpose may appear from an express statement in the relevant statute, by inference from its terms and by appropriate reference to extrinsic materials. The purpose of the statute is not something which exists outside the statute. …
…
543 When the purpose of legislation is established, a construction that would promote that purpose shall be preferred to a construction that would not do so. Section 18 of the Interpretation Act 1984 (WA) is not directed to a construction which better achieves the object of an Act. Rather, the section assists when there is a choice between a construction that would promote the underlying object and one which would not. Nevertheless, as the principles set out above demonstrate, quite apart from the Interpretation Act, at common law the court has regard to the evident purpose and context in its wide sense when construing legislation.
14 In summary, the task of statutory construction must start and conclude with a consideration of the relevant wording of the provision itself. The provision must be considered in its context, that is, the statute in its entirety, the history of the legislative scheme and the intent and object of the statute.
15 With this in mind, it is clear from a consideration of the BSCRA Act in its entirety that the intent of s 5(1) of the BSCRA Act is to protect consumers, in relation to regulated building services which are not carried out in a proper and proficient manner or which are faulty or unsatisfactory. If such a complaint is established then the applicant may be entitled to receive the benefit of a building remedy order, pursuant to s 36 of the BSCRA Act, which includes orders that the person who carried out the regulated building service remedy that service; or pay the applicant the costs of remedying the building service; or pay the applicant a sum of money in order to compensate them for the failure to carry out the building service in a proper and proficient manner, or for faulty or unsatisfactory work.
16 It is also necessary to consider the ordinary and natural meaning of the words 'adversely affected' appearing in reg 5 of the BSCRA Regulations. The Macquarie Dictionary Online defines 'interest' inter alia as 'a share in the ownership of property, in a commercial or financial undertaking, or the like' and 'any right of ownership in property, commercial undertakings etc'. 'Adverse' is defined as, inter alia, 'opposing one's interests or desire'. In the context of a building service complaint, an adverse affect is reached through establishing that the work was 'faulty or unsatisfactory' or not performed 'in a proper and proficient manner', resulting in the need to remedy the regulated building service.
17 The person therefore with standing to make a building service complaint must have, when interpreting the legislation as a whole and the text of the provision itself, an 'interest' which is 'adversely affected' by the carrying out of the regulated building service to the extent that they may be entitled to orders issued under s 36 of the BSCRA Act. It is in the context of the statutory relief available to persons making a building service complaint that reg 5 of the BSCRA Regulations needs to be interpreted. In this regard, the Tribunal notes that in the current proceeding the applicants are seeking orders pursuant to s 36(1)(a) of the BSCRA Act to the effect that the respondent remedy the relevant building services.
Parties submissions and relevant procedural history
Material relied upon by the parties
18 In relation to the preliminary legal issue as to Mr Poidevin's standing as joint applicant, Mr Poidevin and Ms Bhowaniah filed affidavits with the Tribunal sworn 17 November 2016. The respondent filed an affidavit of Mr Michael Condelli (General Manager of the respondent) sworn 15 December 2016. In addition, the Tribunal had the benefit of all the referral documents provided to it by the Building Commissioner.
19 It is only paragraph 94 of Ms Bhowaniah's affidavit that appears to have any relevance to this particular issue. It provides as follows:
Mark Poidevin's back ground has been for the last 20 years in the construction industry and he have his trade qualification as a Carpenter and Training within the Construction Industry. Training covers concrete repair to high risk work including heavy vehicles Tickets from Cranes to bobcats. It is way easier for him to explain from a construction point of view and to understand the terms than it is for Danusha to do this as her background isn't construction. As the Applicant Mark Poidevin is a coplaintiff of the build, he has an 'interest' in the building and his interest has been adversely affected by the conduct of the builder[.] It is clear that Mr Poidevin is and has always been a party to the building contract and need to be remain in the Complaint.
20 Mr Poidevin addresses the issue in paragraph 5 of his affidavit. I will not set out that material because it is simply a replication of paragraph 94 of Ms Bhowaniah's affidavit which has already been cited above.
21 Mr Condelli's affidavit asserts the following relevant facts:
• At paragraph 8 that the respondent entered into a contract, on or about 24 July 2015, with Ms Bhowaniah to construct a dwelling at 230 Dalmilling Drive, Ellenbrook in the State of Western Australia. The contract is attached as 'MC1' and contains the signature of Ms Bhowaniah. It does not contain the signature or mention the name of Mr Poidevin.
• At paragraph 9 - Mr Condelli notes that Mr Poidevin is not and has never been a party to the relevant contract.
• At paragraph 16 - in or about August 2016, the respondent submitted a final invoice to Ms Bhowaniah for payment under the contract. A copy of the invoice is attached to the affidavit and marked 'MC4' and has been issued to Ms Bhowaniah. The invoice remains outstanding.
• At paragraph 17 on or about 1 November 2016, the respondent lodged a complaint with the Building Commission against Ms Bhowaniah seeking payment for the final invoice which remains outstanding under the contract. The complaint has been referred to the Tribunal, being proceeding CC 1903 of 2016.
Relevant history of proceedings
22 It is also relevant to note that there was a previous complaint lodged by Ms Bhowaniah with the Building Commissioner which was referred to this Tribunal, being proceeding CC 461 of 2016. That matter was finally determined at mediation through consent orders dated 18 May 2016. The Tribunal notes that proceeding included complaints both of a contractual nature and comprising of building service complaints in relation to the relevant dwelling. That complaint was not made in the name of Mr Poidevin. Indeed, included in the referral documents in that proceeding was an email dated 17 December 2015 sent by Ms Bhowaniah to Ms Enwood of the respondent which included the following final paragraph:
Your staff need to know how to respect me, they will get the same respect what they give me. Your staff need to know how to draw the line and be professional in your job and not lure on my partner, as he is a male and white skin like your staff. I won't tolerate this behaviour anymore infront of my face I'M THE OWNER AND NOT MARK, MAKE SURE YOU PASS THIS MESSAGE TO ALL YOUR STAFF.
(Original emphasis) (page 108 of the Building Commission referral documents in proceeding CC 461 of 2016)
23 Following the issuing of final orders in proceeding CC 461 of 2016, Ms Bhowaniah brought an application pursuant to s 51 of the BSCRA Act, being proceeding CC 1300 of 2016, seeking conversion of one of the orders made by the Tribunal on 18 May 2016. Ultimately that application was withdrawn. However, it is relevant to note that at the directions hearing in that matter on 6 September 2016, Mr Poidevin sought to represent Ms Bhowaniah. The Tribunal declined to allow Mr Poidevin to act as Ms Bhowaniah's representative on the basis that he did not meet the requirements set out in s 39 of the SAT Act. The following day Ms Bhowaniah approached the Building Commission seeking to have Mr Poidevin joined as an applicant to an ongoing complaint.
Determination
24 In relation to the two contractual complaints, the Tribunal notes that Mr Poidevin simply asserts that he is a party to the contract and therefore an owner. The relevant contractual documents are attached to the sworn affidavit of Mr Condelli. Mr Poidevin is not a named party to the home building work contract and is not a signatory to it. In order to make a HBWC complaint, Mr Poidevin would need to be the person for whom, or which, the home building work is to be performed (s 3 of the HBC Act).
25 The contractual documentation simply does not support the broad assertion made by Ms Bhowaniah and Mr Poidevin. On that basis, the only conclusion which can be reached is that he is not a contracting party and therefore has no legal standing under the relevant legislation to make a HBWC complaint. Therefore those contractual complaints, insofar as they are sought to be made by Mr Poidevin, will be dismissed.
26 That leaves the question as to whether Mr Poidevin has legal standing to make a building service complaint on the basis that his interests have been adversely affected by the relevant regulated building service. Unfortunately the material filed with the Tribunal by Ms Bhowaniah and Mr Poidevin does not address this relevant issue.
27 The affidavit material, in the main, simply refers to Mr Poidevin's experience generally in the construction industry. It does not identify what particular 'interest' has been 'adversely affected'. If Mr Poidevin was a party to the home building work contract, this could be easily ascertained. However, because he is not, the onus is on Mr Poidevin to identify what other interest he has in order to establish his legal standing to make a building service complaint.
28 In the Tribunal's view, the applicants appear to be confused as to what they intended to achieve by requesting the Building Commission staff to add Mr Poidevin as a joint applicant to the complaint. In the Tribunal's view, such a step was taken to ensure that Mr Poidevin could effectively speak on behalf of Ms Bhowaniah in the proceeding, given the Tribunal's refusal to allow him to represent her in proceeding CC 1460 of 2016. This appears to be why the request was made to the Building Commission the day following the relevant directions hearing in which that matter was raised and addressed. It also helps to explain why the affidavit material to which the Tribunal has referred at [19] details matters potentially relevant to considering whether a party can be represented pursuant to s 39 of the SAT Act. In this regard, in particular, the Tribunal refers to s 39(1)(d) which provides as follows:
At a hearing in a proceeding before the Tribunal a party to the proceeding may appear in person or may be represented by another person, but a party cannot be represented by a person other than a legal practitioner unless
…
(d) the person has particular knowledge or experience relevant to the matter that is being dealt with (other than experience obtained as or representing a party in another Tribunal proceeding)[.]
29 Setting out Mr Poidevin's experience in the construction industry may well be relevant to the Tribunal considering whether he meets the requirements of s 39(1)(d) of the SAT Act, but it is not relevant to the question as to his legal standing to be an applicant in this proceeding.
30 The Tribunal therefore also finds that Mr Poidevin does not have legal standing to make a building service complaint because he has not identified any interests which may have been adversely affected by the regulated building service.
Order
1. The complaints, to the extent that they have been made by Mr Poidevin as joint applicant, are hereby dismissed except as to costs.
I certify that this and the preceding [30] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS C WALLACE, SENIOR MEMBER