BOYLE and MIDWEST BUILDING (WA) PTY LTD - [2020] WASAT 104

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   BOYLE and MIDWEST BUILDING (WA) PTY LTD [2020] WASAT 104
MEMBER:   MS D QUINLAN, MEMBER
DR B MCGIVERN, MEMBER
MR W GREGORY, SESSIONAL MEMBER

HEARD:   1 AND 2 JULY 2020
DELIVERED          :   3 SEPTEMBER 2020
FILE NO/S:   CC 1669 of 2019
BETWEEN:   LISA BOYLE
First Applicant
DARREN BOYLE
Second Applicant
AND
MIDWEST BUILDING (WA) PTY LTD
Respondent

Catchwords:

Building service complaint - HBWC complaint - Contract terms - Finished floor level amended - Sloping rural residential block - Whether breach of contract - Whether structural retaining required - Revised site plan - Turns on own facts

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5, s 5(1), s 5(2), s 11(1)(d), s 36, s 36(1)(b), s 38, s 41, s 43, s 51(2)
Building Services (Registration) Act 2011 (WA), s 3
Home Building Contracts Act 1991 (WA), s 3, s 4, s 17, s 17(a)(i), s 27(1)

Result:

Application partly successful

Category: B

Representation:

Counsel:

First Applicant	:	In Person
Second Applicant	:	In Person
Respondent	:	A Searle

Solicitors:

First Applicant	:	N/A
Second Applicant	:	N/A
Respondent	:	Searle Construction Lawyers

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

Elvidge Pty Ltd v BGC Construction Pty Ltd [2006] WASCA 264
Gemmill Homes Pty Ltd v Sanders [2018] WASC 179
Vitte and Studio 8 Builders & Designers Pty Ltd [2013] WASAT 43

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 23 October 2019 the Building Commissioner referred a complaint to the Tribunal under s 11(1)(d) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (the Act) as the applicants disputed the proposed remedy order for complaint item 1 and the value of the works identified exceeded the prescribed amount of $100,000.
On 4 September 2018 the parties entered into a 'home building work contract' (contract) as defined in s 3 of the Home Building Contracts Act 1991 (WA) (HBC Act) to build a residential dwelling at 6 Lefroy Street, Gingin (the property) as a home for the applicants, Mr Darren Boyle and Ms Lisa Boyle.
The respondent is a 'registered building service provider' as defined under s 3 of the Act in that the respondent is a 'building service contractor' as defined under s 3 of the Building Services (Registration) Act 2011 (WA) (Registration Act).
The property can be described as rural residential. The property is affected by a significant slope from front to back with another small slope from left to right (when facing from Lefroy Street). The property is approximately 40 metres wide, 331 metres in length on the western boundary and 284 metres in length on the eastern boundary. The residential dwelling is set back 20 metres from Lefroy Street: see the original site plan in the development approval dated 5 November 2018 at tab 35 of Exhibit 2.
The original complaint included 27 items of complaint. However, the only complaint items that remain in…

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.

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Details

Case: [2020] WASAT 104
Decision Date: 3 SEPTEMBER 2020

CaseChat Overview and Summary

The case before the court involved a dispute between the plaintiffs, Mr. Boyle and Midwest Building (WA) Pty Ltd, and the defendant. The plaintiffs sought compensation for alleged defects in a residential building constructed on a sloping rural block. The defendant, a construction company, was responsible for the building works. The plaintiffs claimed that the finished floor level was not as agreed upon in the contract, which led to issues with drainage and potential structural instability. The matter was heard in the Supreme Court of Western Australia.

The primary legal issues the court had to address were whether the defendant breached the contract by failing to deliver a finished floor level as per the specifications and whether the construction on a sloping block required a structural retaining wall. The court needed to determine if the defendant's actions constituted a breach of contract and whether additional structural measures were necessary due to the nature of the site. The plaintiffs argued that the contract terms were not met and that the sloping terrain required additional measures to ensure the stability and functionality of the building.

The court examined the contractual terms and the specific requirements for the finished floor level. It found that the contract did not explicitly mandate a specific finished floor level but rather provided a range within which the work was to be completed. The court held that the defendant had completed the works within the permissible range and had not breached the contract. The court also considered the nature of the sloping site and concluded that the defendant had not been required to include a structural retaining wall as part of the contract. The court held that the defendant's actions did not constitute a breach of contract.

The court dismissed the plaintiffs' claims, finding no breach of contract or obligation to install a structural retaining wall. The plaintiffs' appeal was also dismissed, affirming the lower court's decision. The court's ruling underscored the importance of contractual terms and the necessity of clear specifications in construction contracts, particularly when dealing with unique site conditions.

Orders