Brodun Construction and Love and Anor

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

ACT: BUILDERS' REGISTRATION ACT 1939 (WA)

CITATION:   BRODUN CONSTRUCTION and LOVE & ANOR [2008] WASAT 174

MEMBER:   DR B DE VILLIERS (MEMBER)

HEARD:   24 JULY 2008

DELIVERED          :   5 AUGUST 2008

FILE NO/S:   CC 1434 of 2006

BETWEEN:   BRODUN CONSTRUCTION

Applicant

AND

ROSS LOVE
First Respondent

JEROME BARLEY
Second Respondent

Catchwords:

Leave for review ­ Does the Building Disputes Tribunal have the power to prescribe a remedy ­ Discretion of the Building Disputes Tribunal ­ Error in law ­ Error in fact ­ Did the Building Disputes Tribunal err in law or in fact by electing a specific methodology to effect a remedy

Legislation:

Builders Registration Act 1939 (WA), s 12A, s 41(1)
Building Code of Australia

Result:

Leave to review dismissed

Category:    B

Representation:

Counsel:

Applicant:     Mr A MacPherson

First Respondent           :     Mr TM Retallack

Second Respondent      :     Self-represented

Solicitors:

Applicant:     Hotchkin Hanly

First Respondent           :     Maxim Litigation Consultants

Second Respondent      :     Self-represented

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

Gullan v Bacton Pty Ltd (1995) 15 SR (WA) 60

Tangent Nominees Pty Ltd and Edwards & Anor [2005] WASAT 119

Wilson v Metaxas (1989) WAR 285

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. The application questions the power of the Building Disputes Tribunal to elect the methodology to be used by a builder to remedy a defect.

2. The applicant accepts the order of the Building Disputes Tribunal to remedy, but it says the Building Disputes Tribunal erred in law and in fact by electing a specific way for the builder to comply with the order.  According to the applicant, it is within the discretion of the builder what remedy it wants to employ to address a problem.  The applicant therefore sought leave for the decision of the Building Disputes Tribunal to be reviewed.

3. The respondent opposed the application.  According to the respondent, the Building Disputes Tribunal has the power to opt for a specific remedy.  Although the Building Disputes Tribunal as a general practice would not specify a remedy, it does have the power to do so.  The respondent further argues that all the evidence was before the Building Disputes Tribunal and that it made its finding on the basis thereof.

4. The Tribunal found that the Building Disputes Tribunal did not err in law by electing a specific methodology to remedy the problem.  The Building Disputes Tribunal does have the power to prescribe a remedy, and although it may as a matter of practice not do so frequently, it does not diminish its right to elect a methodology.  The Tribunal also found that the specific methodology chosen by the Building Disputes Tribunal was in evidence before it, and after having considered the option proposed by the builder, it accepted the evidence of the owner's expert witness.  The Building Disputes Tribunal therefore did not err in fact.

5. The application for leave to review was therefore dismissed.

Issue

1. The applicant seeks leave to review a decision of the Building…