Braham and Evans and Anor

Case [2007] WASAT 124


BRAHAM and EVANS & ANOR [2007] WASAT 124


Link to Appeal :

STATE ADMINISTRATIVE TRIBUNALCitation No:[2007] WASAT 124
BUILDERS' REGISTRATION ACT 1939 (WA)
Case No:CC:1636/200627 APRIL 2006
Coram:MR T CAREY (MEMBER)24/05/07
32Judgment Part:1 of 1
Result: Leave refused
Interim stay discharged
B
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Parties:MARK ANTHONY BRAHAM
WAYNE MURRAY EVANS
MICHELLE ANNE GRACE

Catchwords:

Building dispute ­ Application for leave to review decision ­ Jurisdiction and power to determine complaint and make orders ­ Whether decision on jurisdiction on preliminary issue basis final ­ Whether defects such that building work not completed for purposes of s 12A(1aa) Builders' Registration Act 1939 ­ Validity of preliminary notice ­ Whether period for response to notice reasonable ­ Whether notice "given" ­ Natural justice ­ Whether Disputes Tribunal required to give non­attendant builder notice of relief proposed ­ Whether respondents had standing to make complaint as "any person" under s 12A(1) Builders' Registration Act 1939 ­ Whether Disputes Tribunal erred in applying adverse costs provision in s 38(5) Builders' Registration Act 1939 to owner/builder

Legislation:

Acts Interpretation Act 1954­1962 (Qld), s 39(1)
Builders' Registration Act 1939 (WA), s 4(1)(a), s 12A, s 12A(1), s 12A(1a), s 12A(1aa), s 12(1aa), s 12A(2), s 12A(3), s 38(5), s 38(6), s 41, s 42
Builders Registration Regulations (WA)
Hire Purchase Act 1959 (Qld), s 42(1)(c)
Home Building Contracts Act 1991 (WA)
Interpretation Act 1984 (WA), s 75, s 75(1), s 76
State Administrative Tribunal Act 2004 (WA), s 31

Case References:

Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Content Living Pty Ltd v McIntosh & Anor [2005] WADC 173
Craig v State of South Australia (1995) 184 CLR 163
Dobby v Department of Social Security (Unreported, FCA; Full Court; 7 April 1995)
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Kowalski v Trustee, Mitsubishi Motors Australia Ltd Staff Superannuation Pty Ltd [2003] FCAFC 18
Russell v Duke of Norfolk [1949] 1 All ER 109
Salthouse and APG Homes Pty Ltd [2006] WASAT 43
Tangent Nominees Pty Ltd and Edwards & Anor [2005] WASAT 119
Tangent Nominees Pty Ltd and Edwards & Anor [2006] WASAT 243
Tangent Nominees Pty Ltd v Edwards & Anor [2006] WASC 45


Orders

1. The application for leave to review the decisions of the Building Disputes Tribunal reflected in Order to Pay No 34/2006-2007 and Costs Order No 1/2006-2007 is refused.,2. The interim stay of operation of the order to pay and costs order referred to in order 1 of this Tribunal dated 24 October 2006 is discharged.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : BUILDERS' REGISTRATION ACT 1939 (WA) CITATION : BRAHAM and EVANS & ANOR [2007] WASAT 124 MEMBER : MR T CAREY (MEMBER) HEARD : 27 APRIL 2006 DELIVERED : 24 MAY 2007 FILE NO/S : CC 1636 of 2006 BETWEEN : MARK ANTHONY BRAHAM

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Braham and Evans and Anor [2007] WASAT 124
Case
[2007] WASAT 124
Decision Date

CaseChat Overview and Summary

Braham and Evans and Anor involved a dispute related to building work and the jurisdiction of the Building Disputes Tribunal. The applicants sought leave to review decisions made by the Tribunal, including an Order to Pay and a Costs Order. The Tribunal had ruled in favor of the respondents, who were individuals with whom the applicants had building contracts, finding that the building work was not completed to a satisfactory standard and that the applicants had failed to provide adequate preliminary notices. The applicants contested the Tribunal's findings and jurisdiction, arguing that the decisions were flawed and that the Tribunal did not have the authority to make certain orders.

The primary legal issues before the court were whether the Tribunal's decision on jurisdiction was final, whether the building work was defective as defined by the relevant statute, the validity of the preliminary notice, the reasonableness of the response period, and the procedural fairness in the Tribunal's proceedings. Additionally, the court considered whether the respondents had standing to make their complaint, and whether the Tribunal correctly applied an adverse costs provision to the applicants.

The court found that the Building Disputes Tribunal had correctly exercised its jurisdiction and that the decisions on the merits of the complaint were not flawed. The court held that the building work was indeed defective under the statutory definition and that the preliminary notice was valid and properly served. The response period was deemed reasonable, and the Tribunal was not required to give the non-attendant builder notice of the proposed relief. The court also found that the respondents had standing to make their complaint, and the Tribunal did not err in applying the adverse costs provision. Consequently, the application for leave to review was refused, and the interim stay of the Tribunal's orders was discharged.

The final orders of the court were to refuse the application for leave to review the Tribunal's decisions and to discharge the interim stay of the Order to Pay and Costs Order issued by the Tribunal.

Orders

Orders of the court

1. The application for leave to review the decisions of the Building Disputes Tribunal reflected in Order to Pay No 34/2006-2007 and Costs Order No 1/2006-2007 is refused. 2. The interim stay of operation of the order to pay and costs order referred to in order 1 of this Tribunal dated 24 October 2006 is discharged.

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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