BOVILLA PTY LTD and JOHNSON
[2012] WASAT 46
•12 MARCH 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)
CITATION: BOVILLA PTY LTD and JOHNSON
[2012] WASAT 46
MEMBER: JUSTICE J A CHANEY (PRESIDENT)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 12 MARCH 2012
FILE NO/S: CC 2110 of 2011
BETWEEN: BOVILLA PTY LTD
Applicant
AND
MICHAEL JOHNSON
KATHRYN JOHNSON
Respondents
Catchwords:
Building - Current proceedings - Limits to State Administrative Tribunal jurisdiction - Whether order that proceedings are current proceedings is appropriate
Legislation:
Builders Registration Act 1939 (WA)
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 7, s 9, s 11, s 51, s 58(2), s 133, s 134, s 134(2)
State Administrative Tribunal Act 2004 (WA), s 84
Result:
Order made that respective claims are current proceedings and the Order to Pay dated 16 December 2011 be set aside
Category: B
Representation:
Counsel:
Applicant: Mr B Lynch
Respondents : Self represented
Solicitors:
Applicant: N/A
Respondents : N/A
Case(s) referred to in decision(s):
Capone and Ennis Construction Pty Ltd [2012] WASAT 21
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Certain proceedings had been referred to the State Administrative Tribunal by the Building Commissioner. Those proceedings had been transferred from the then Building Disputes Tribunal to the Commissioner under the transitional provisions of the Building Services (Complaint Resolution and Administration) Act 2011 (WA).
The President of the Tribunal determined that, in the particular circumstances of these proceedings it was appropriate that there be orders that the proceedings are 'current proceedings', with the result that they are to be referred back to the Building Disputes Tribunal for resolution.
Background
These matters concern the installation of a glass pool fence by Bovilla Pty Ltd (builder) at the residence of Mr and Mrs Johnson (owners) in East Fremantle.
On 31 March 2011, the owners filed Complaint No 0.20474 (D20474BC0292/11) dated 25 March 2011 with the Building Disputes Tribunal (BDT) raising allegations of faulty or unsatisfactory workmanship in respect of the pool fence.
On 20 May 2011 an inspector from the Builders Registration Board inspected the items of complaint and issued a report dated 24 May 2011 in respect of each of the items complained of.
On 10 June 2011 the Acting Deputy Registrar of the Building Disputes Tribunal made an Order to Remedy No 274/2010-11 requiring remedial work to be undertaken by the builder in respect of certain items and dismissed others.
The builder attempted on a number of occasions to undertake the remedial works required in the Order to Remedy, however, the owners were not satisfied that the matters had been adequately rectified and on 16 August 2011 requested that the matter be referred to a hearing so that the Order to Remedy could be revoked and an Order to Pay imposed. They confirmed that position in an email dated 7 September 2011.
On 13 September 2011 the Building Commission referred the matter to the State Administrative Tribunal (Tribunal) pursuant to s 11 of the Building Services (Complaints Resolution and Administration) Act 2011 (WA) (BS Act) for the Order to Remedy to be converted to an Order to Pay.
On 12 October 2011 the matter came on for directions before the Tribunal and was listed for final hearing on 8 December 2011 with the only matter in issue identified as:
'the respondent's alleged noncompliance with par 3 of the Order to Remedy No 274/2010-11 notwithstanding several attempts to ensure that the gate closes properly'.
On 8 December 2011 the final hearing was held by the Tribunal. There was no appearance by the respondent and, for the oral reasons given, an Order to Pay was made against the respondent in the sum of $5,687.
Immediately following that hearing on 8 December 2011 the respondent, applied under s 84 of the State Administrative Tribunal Act 2004 (WA) to review the decision made in it's absence.
Following receipt of the application for review the Tribunal made further orders on 8 December 2011 which stated:
1.The respondent's application under section 84 of the State Administrative Tribunal Act 2004 (WA) is listed for hearing at 9.30am on 16 December 2011.
2.If the application is successful, then the matter will be reviewed by the Tribunal on 16 December 2011.
On 16 December 2011 the matter was heard in compliance with these orders and following that hearing the Tribunal made the following orders:
1.The Tribunal is satisfied that the respondent had a reasonable excuse, within the terms of section 84 of the State Administrative Tribunal Act 2004 (WA), for not attending the final hearing on 8 December 2011. Accordingly the matter was heard on 16 December 2011.
2.By close of business on 30 December 2011 the respondent is ordered to pay the applicants $5,687.00, for the reasons given.
On 23 December 2011 the respondent against whom the orders were made sought an internal review of the Tribunal's decision of 16 December 2011 under s 58(2) of the BS Act.
That application was listed for directions on 19 January 2012 when it was programmed to final hearing on 24 February 2012.
On 3 February 2012 the Tribunal published a decision in Capone and Ennis Construction Pty Ltd [2012] WASAT 21 (Capone and Ennis Construction) which confirmed that matters, such as the present matter, where an Order to Remedy had been made by the BDT should have been finalised by the BDT and not have been transferred to this Tribunal.
In the circumstances to properly explain the situation to the parties and avoid unnecessary work in preparing for the review listed for 24 February 2012 the Tribunal brought the matter on for directions on 14 February 2012 and requested both parties attend.
On 14 February 2012, having explained the position to the parties, the applicant in the review proceedings who had been the respondent against whom the Order to Pay had been made in the initial proceedings consented to the matter being referred to the President of the Tribunal for an Order that the proceedings be treated as a 'current proceeding' pursuant to s 134(2) of the BS Act and be transferred back to the BDT.
Consent could not however be obtained for that course of action from the respondent who was represented by Mr Johnson, who had been the applicant in the initial proceedings, and the beneficiary of the Order to Pay, as he left the proceedings abruptly. The matter was therefore allowed to proceed to the final review hearing previously listed for 24 February 2012.
At that final review hearing both parties attended by telephone with the applicant in the review proceedings being represented by Mr Lynch and the respondent in the review proceedings being represented by Mrs Johnson.
As it had been Mr Johnson who had attended the directions hearing on 14 February 2012 the Tribunal again explained the position brought about by the decision in Capone and Ennis Construction to Mrs Johnson who was also not prepared to consent to the orders proposed. In such circumstances the Tribunal must consider and decide the matter.
Legislative framework
Since 29 August 2011 (commencement day), jurisdiction in building complaints concerning both poor workmanship and contractual claims, formerly vested in the BDT, was bestowed, in the first instance, on the Building Commissioner. Having decided to accept the application (as to which see s 7 of the BS Act), and subsequent to an investigation of the complaint being conducted (s 9 BS Act), the Building Commissioner has the options of dismissing the complaint, dealing with it itself by conciliation or determination, or referring the complaint to the Tribunal (s 11 BS Act).
The position regarding proceedings already commenced in the BDT prior to the commencement day is that, generally speaking, they were transferred on that day to the Building Commissioner by operation of s 133 of the BS Act. An exception exists however, in relation to any 'current proceeding', which is the subject of s 134 of the BS Act, which provides:
(1)In this section -
current proceeding means -
(a)a proceeding in respect of which a hearing has commenced before the former Tribunal, but which has not been concluded before the former Tribunal; or
(b)a proceeding in respect of which an order is made under subsection (2);
proceeding means -
(a)a proceeding to deal with a complaint under section 12A of the repealed Act; or
(b)a proceeding to deal with an application under the Home Building Contracts Act 1991,
but does not include a proceeding of an interlocutory or procedural nature.
(2)The State Administrative Tribunal constituted by the President of the Tribunal sitting alone may, on its own initiative or on the application of a party, order that a proceeding is a current proceeding for the purposes of this section.
(3)A current proceeding is to be dealt with and determined in accordance with the relevant provisions of the repealed Act and the Home Building Contracts Act 1991 as in force immediately before commencement day.
(4)For the purposes of dealing with a current proceeding the former Tribunal is to continue as constituted under the repealed Act immediately before commencement day.
As set out earlier, on 13 September 2011 the Building Commissioner advised the applicant and the respondent of the acceptance by the Building Commissioner of the complaint under s 7 the BS Act, and of its referral to this Tribunal pursuant to s 11 of the BS Act.
Are orders under s 134(2) appropriate?
There is no suggestion that the owner's claim is a current proceeding within part (a) of the definition of that expression in s 134. The matter has however been referred to me for consideration as to whether I should, pursuant to s 134(2), make orders that the claim is a current proceeding. The effect of such an order would be that the proceedings would be dealt with and determined by the BDT, in accordance with the relevant legislation in force immediately preceding the commencement day.
The immediate and obvious factor in favour of my making a s 134(2) order concerns the item in the owners' complaint in respect of which provision was made in the Order to Remedy for rectification works to occur, but which the owners claim have not been rectified. Under the legislation as it existed both before and after the commencement day, the only recourse available is revocation of the Order to Remedy and for an order for payment of money to be made (under the Builders Registration Act 1939 (WA), an order to pay, and under the BS Act, an order to pay or an order for compensation). However, s 51 of the BS Act makes clear that this Tribunal is empowered to make such an alternate order only in respect of building remedy orders made by it.
Were the owners' application to remain in this Tribunal, the Tribunal would be unable to deal with the alleged failure of the builder to comply with his rectification obligations under the Order to Remedy.
The result is that the best way forward is for the owners' complaint to be transferred back to the BDT. As I have mentioned, the mechanism to enable this is by an order under s 134(2), and I will make such an order in this case.
The proceedings before me concern an application to review the order made by the Tribunal on 16 December 2011 ordering the payment of $5,687. For reasons as discussed above, it is clear that that order was made without jurisdiction. It follows that it should not be allowed to stand. Accordingly, I will also make an order setting that order aside thus allowing the matter to be dealt with afresh by the Building Disputes Tribunal.
Orders
1.Pursuant to s 134(2) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), matter Nos CC 1449 of 2011 and CC 2110 of 2011 in the State Administrative Tribunal being proceeding No D20474 (Complaint No 0.20474 BC0292/11) in the Building Disputes Tribunal between Michael and Kathryn Johnson and Bovilla Pty Ltd is a current proceeding.
2.The order of the State Administrative Tribunal dated 16 December 2011 ordering Bovilla Pty Ltd to pay Michael and Kathryn Johnson the sum of $5,687 is set aside.
I certify that this and the preceding [29] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J A CHANEY, PRESIDENT