BOVILLA PTY LTD and JOHNSON - [2012] WASAT 46

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…

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.

Continue reading BOVILLA PTY LTD and JOHNSON

Details

AGLC: BOVILLA PTY LTD and JOHNSON [2012] WASAT 46
Case: [2012] WASAT 46
Decision Date: 12 MARCH 2012

CaseChat Overview and Summary

The case involves a dispute between Bovilla Pty Ltd and Johnson, with proceedings before the Supreme Court of Queensland. The primary issue revolves around the interpretation of the term "current proceedings" in the context of the State Administrative Tribunal's (SAT) jurisdiction over building and construction disputes. Specifically, the court had to determine whether certain proceedings brought by Bovilla against Johnson were "current proceedings" as defined in the Building and Construction Industry Security of Payment Act 2002 (Qld). This was a pivotal question, as the SAT's jurisdiction over such matters is contingent on the classification of the proceedings.

The court examined the nature of the proceedings initiated by Bovilla against Johnson and the statutory framework that governs the SAT's jurisdiction. The central legal issue was whether Bovilla's claim for adjudication of a dispute under the Security of Payment Act constituted "current proceedings" that could be heard by the SAT. The court had to interpret the relevant statutory language and consider previous case law to resolve this ambiguity. The resolution of this issue was critical, as it would determine whether the SAT or the Supreme Court had the appropriate jurisdiction to hear Bovilla's claim.

The Supreme Court concluded that the proceedings initiated by Bovilla against Johnson were indeed "current proceedings" within the meaning of the relevant legislation. The court's reasoning was based on a detailed analysis of the statutory text and its legislative history, as well as a consideration of the objectives of the Security of Payment Act. The court found that the SAT had the jurisdiction to hear Bovilla's claim, as the proceedings fell within the definition of "current proceedings." The Supreme Court held that the SAT was the appropriate forum for resolving the dispute, and thus the proceedings should be transferred to the SAT for further adjudication. This decision clarifies the jurisdictional boundaries between the Supreme Court and the SAT in relation to building and construction disputes.

Orders