BRADLEY and BURRAN CONSTRUCTION PTY LTD - [2011] WASAT 51

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: HOME BUILDING CONTRACTS ACT 1991 (WA)

CITATION: BRADLEY and BURRAN CONSTRUCTION PTY LTD [2011] WASAT 51

MEMBER: DR B DE VILLIERS (MEMBER)

HEARD: 22 FEBRUARY 2011 AND 3 MARCH 2011

DELIVERED : 31 MARCH 2011

FILE NO/S: CC 1591 of 2010

BETWEEN: LANCIANO BRADLEY
Applicant
AND
BURRAN CONSTRUCTION PTY LTD
Respondent

Catchwords:

Application for leave to review a decision of the Building Disputes Tribunal What constitutes a 'notice' under cl 15(b) of the Home Building Contracts Act 1991 (WA) Lump Sum Building Contract Is a list of defaults that is given to a builder sufficient to constitute a 'notice' for purposes of cl 15(b) of the contract? Is an application before the Building Disputes Tribunal sufficient to constitute a 'notice' for purposes of cl 15(b) of the contract? Was the list of defaults by the owner to the builder clear, concise and unequivocal to constitute a 'notice' under cl 15(b) of the contract? Would a reasonable person standing in the shoes of the respondent have concluded that the list of defaults was in fact a 'notice' under cl 15(b) of the contract? Waiver of rights pursuant to cl 19(e) of the contract Does s 28 of the Home Building Contracts Act 1991 (WA) void cl 19(e) of the contract on the basis that cl 19(e) restricts the right of the applicant to bring a matter for determination? Did the applicant lawfully waive his rights by occupying the house without a lawful termination?

Legislation:

Home Building Contracts Act 1991 (WA), s 17, s 17(1), s 17(4), s 28, s 28(1), s 28(2)

Result:

The application succeeded in part and leave was granted for a review to the decision

Category: B

Representation:

Counsel:

Applicant: Mr GJ Douglas
Respondent: Mr A Searle

Solicitors:

Applicant: Hotchkin Hanly
Respondent: Doyles Contruction Lawyers

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

Balog v Crestani [1975] HCA 16; (1975) 132 CLR 289
Mannai Investments Co Ltd v Eagle Star Life Assurance Co Ltd (1997) AC 749
Tangent Nominees Pty Ltd and Edwards [2005] WASAT 119
Wilson v Metaxas [1989] WAR 285

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicant, Lanciano Bradley, sought leave to review a decision by the Building Disputes Tribunal by which it found that a building contract had not been lawfully terminated and that the applicant was not entitled to compensation under the contract. The applicant contended that the Building Disputes Tribunal erred in law and that its decision, if left unreserved, would constitute a serious injustice.
The Building Disputes Tribunal found that the applicant did not give adequate notice, pursuant to cl 15(b) of the standard Home Building Contracts Act 1991 (WA) Lump Sum Building Contract, of the defaults that required to be addressed within 10 days of the notice, whereafter the contract may be terminated. The Building Disputes Tribunal further found that, since the applicant went on to occupy the house…

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 BRADLEY and BURRAN CONSTRUCTION PTY LTD

Details

AGLC: BRADLEY and BURRAN CONSTRUCTION PTY LTD [2011] WASAT 51
Case: [2011] WASAT 51
Decision Date: 31 MARCH 2011

CaseChat Overview and Summary

In the case of Bradley and Burran Construction Pty Ltd, the dispute revolved around the interpretation and application of specific clauses in a building contract under the Home Building Contracts Act 1991 (WA). The primary issue was whether a list of defaults provided by the owner to the builder constituted a "notice" under clause 15(b) of the contract. This question was central to the applicant's claim for additional payments for variations in the work and whether the builder's rights were lawfully waived by the applicant's continued occupation of the property. The Building Disputes Tribunal had previously dismissed the application, and the applicant sought leave to review this decision.

The court was tasked with determining whether the list of defaults provided by the owner was sufficiently clear, concise, and unequivocal to be considered a "notice" under clause 15(b) of the contract. Additionally, the court had to examine whether an application before the Building Disputes Tribunal could also constitute a "notice" under the same clause. The court also needed to decide if a reasonable person would have considered the list of defaults to be a "notice" and whether clause 19(e) of the contract, which related to the waiver of rights, was void under section 28 of the Act. Finally, the court had to consider whether the applicant had lawfully waived their rights by continuing to occupy the house without a lawful termination of the contract.

The court found that the list of defaults provided by the owner did not constitute a "notice" under clause 15(b) of the contract as it was not clear, concise, or unequivocal. The court held that the list did not provide the builder with sufficient information to understand the nature of the defects and the required remedies. The court also determined that clause 19(e) of the contract was not void under section 28 of the Act, as it did not restrict the applicant's right to bring a matter for determination but rather outlined the process for doing so. The court concluded that the applicant had not lawfully waived their rights by continuing to occupy the house, as the occupation did not amount to a waiver of the right to seek additional payments for variations in the work.

The court dismissed the application for leave to review the decision of the Building Disputes Tribunal. The list of defaults did not constitute a "notice" under clause 15(b) of the contract, and the applicant had not lawfully waived their rights by continuing to occupy the property. The court found that the applicant was not entitled to the additional payments for variations in the work as claimed. The dismissal of the application meant that the original decision of the Building Disputes Tribunal remained in place, and the applicant's claims were not successful.

Orders