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…
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- Case
- [2020] WASAT 104
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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