BROOK and BGC CONSTRUCTION PTY LTD
[2009] WASAT 35
•27 FEBRUARY 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: BUILDERS' REGISTRATION ACT 1939 (WA)
CITATION: BROOK and BGC CONSTRUCTION PTY LTD [2009] WASAT 35
MEMBER: MR M SPILLANE (MEMBER)
HEARD: 15 AUGUST 2008
DELIVERED : 27 FEBRUARY 2009
FILE NO/S: CC 334 of 2008
BETWEEN: CRAIG OWEN BROOK
Applicant
AND
BGC CONSTRUCTION PTY LTD
Respondent
Catchwords:
Application to extend time - Application for leave to review Building Disputes Tribunal decision - Builders' Registration Act 1939 (WA), s 12A(1)
Legislation:
Builders' Registration Act 1939 (WA), s 12A, s 12A(1), s 12A(1)(a), s 41(2)
State Administrative Tribunal Rules 2004 (WA), r 9, r 10
Result:
Application for leave refused
Application dismissed
Category: B
Representation:
Counsel:
Applicant: Mr P Marsh
Respondent: Mr S Pentony
Solicitors:
Applicant: HFM Legal
Respondent: Hotchkin Hanly
Case(s) referred to in decision(s):
Bradshaw v McGuire (unreported, WASC, 30 April 1986)
Gallo v Dawson (1990) 64 ALJR 458
O'Connor and Town of Victoria Park [2005] WASAT 161
Tangent Nominees Pty Ltd and Edwards [2005] WASAT 119
Well Holdings Pty Ltd v Agostino [2001] WADC 174
Wilson v Metaxas [1989] WAR 285
Wing Luck Foods v Lay Choo Lim [1989] WAR 358
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant sought leave to review a decision of the Building Disputes Tribunal in respect of an allegation of unsatisfactory construction of a carport at a unit in Wisbey Street, Bunbury.
The applicant also sought an extension of time as the application for leave was filed approximately eight days out of time.
The Building Disputes Tribunal had declined to make the orders sought by the applicant as it had not been satisfied on the evidence.
The applicant initially filed two grounds of review, the first of which was dealt with by consent which allowed all contractual issues to be remitted back to the Building Disputes Tribunal for hearing.
In respect of the second ground of review the applicant outlined eight specific issues where he said the Building Disputes Tribunal had either taken matters into account when they should not have, or they failed to take matters into account when they should.
Although this Tribunal was satisfied that the time for lodging the application should be extended, it was not satisfied that the applicant had shown that the decision by the Building Disputes Tribunal was wrong or attended with sufficient doubt that it should be set aside. Furthermore, the applicant did not demonstrate that if the decision was not reversed that a substantial injustice would result.
In the circumstances the application for leave was refused and the application was dismissed.
Introduction
This is an application for leave to review the decision of the Building Disputes Tribunal (BDT) delivered 29 January 2008 pursuant to s 41(2) of the Builders' Registration Act 1939 (WA) (BR Act). The application was lodged on 10 March 2008 and the orders sought are:
(1)That leave be granted to make the application out of time; and
(2)Leave be granted to review the decision of the BDT.
The two initial grounds on which leave was sought were:
(1)That the decision of the BDT purported to deal with the whole of the matter when only one ground was heard; and
(2)The decision of the BDT in relation to the issue before it was wrong both in law and on the facts.
Extension of time
The BR Act does not set down any time limit within which an application for review may be made to the State Administrative Tribunal (Tribunal). However, r 9 of the State Administrative Tribunal Rules 2004 (WA) (Tribunal Rules) states:
Subject to these rules, an application to the Tribunal under its review jurisdiction must be made within 28 days of
(a)the day on which the decision-maker gives a notice under the Act section 20(1);
(b)the day on which the decision-maker makes the decision under the Act section 20(5); or
(c)if, under the Act section 3(3)(a), the Act applies as if a person had made a decision, the day on which any provision of the enabling Act as to when the decision is taken to have been made has effect.
Rule 10 of the Tribunal Rules allows for an extension of time and states:
(1)The Tribunal, on application by any applicant, referring person or on its own initiative, may extend any time fixed under the Act, an enabling Act or these rules for the commencement of a proceeding.
(2)Under this rule, the Tribunal may extend time even if the time fixed expired before an application for an extension was made or the Tribunal on its own initiative considered extending the time.
The applicant requested that the 28 day time limit be extended up to and including the date of lodgement of the application, and an affidavit in support of the extension was filed by the solicitor acting for the applicant.
The principal considerations in the exercise of discretion regarding an extension of time have been referred to in a number of decisions of the Tribunal, principally that of O'Connor and Town of Victoria Park [2005] WASAT 161 where the then President identified the relevant authorities at [38] to [39] and referred in particular to the judgment of McHugh J in Gallo v Dawson (1990) 64 ALJR 458 at 459 where he stated:
In a passage quoted with approval and applied by Malcolm CJ (with whom Kennedy and Franklyn JJ agreed) in Girando and Anor v Girando (1997) 18 WAR 450 at 454, Kennedy J held in Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 at 198 as follows:
'In Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942 at 946; [1985] 2 All ER 517 at 520, the Court of Appeal accepted that, in relation to an application for an extension of time for appealing, there are four major factors to be considered in the exercise of discretion which is conferred upon the court. They are, first, the length of the delay, secondly, the reasons for the delay, thirdly, whether there is an arguable case and, fourthly, the extent of any prejudice to the respondent. There may in a particular case be additional factors, but I accept that the foregoing are the major factors in the present case.'
Dealing briefly with each of the four factors identified by Kennedy J:
The length of delay
In the present case, the application was lodged eight days out of time, which in all circumstances is a relatively short period.
The reasons for delay
In the affidavit supporting the application, it was explained that the reasons for decision of the BDT were forwarded to counsel on the same day as they had been received, namely, 4 February 2008.
Some days later counsel requested the transcript which was obtained on 14 February 2008 and again was immediately forwarded to counsel.
On or about 27 February 2008, it was learned that counsel had not been able to prepare the application due to illness and work commitments so it was prepared by the solicitors with some assistance from counsel and lodged with the Tribunal on 10 March 2009.
It was explained that the failure to comply with the time limit was not occasioned by any fault on the part of the applicant and the respondent had been informed of the applicant's intention to apply for review well before the time for review had expired.
Is there an arguable case?
It is clear from the decision that follows and in particular the issues raised and arguments put forward by the applicant, which, although ultimately unsuccessful, at the very least raised an arguable case for the purpose of extending time.
The extent of any prejudice to the respondent
Given that the respondent was informed of the intention to apply for a review well before the time allowed had expired and did not point to any prejudice it might suffer, the Tribunal is therefore not satisfied that any prejudice would be caused to the respondent by extending the time as requested.
In the circumstances the extension of time up to and including the date of lodgement of the application being 10 March 2008 is granted.
Application for leave
As stated earlier there were initially two grounds on which application for leave was sought namely:
(1)That the decision of the BDT purported to deal with the whole of the matter when only one ground was heard; and
(2)The decision of the BDT in relation to the issue before it was wrong both in law and on the facts.
In respect of (1) above, [11] of the BDT's reasons for decision made it clear that the contractual matters remained on foot to be decided by the BDT when it stated:
The Tribunal has a contractual jurisdiction pursuant to the Home Building Contracts Act 1991 ('the HBC Act'). Counsel for the complainant and the respondent stated in their submissions that the complainant did not wish the Tribunal to decide these matters on a contractual basis. The Tribunal has considered this matter only on the basis sought by the parties, particularly the complainant.
When the matter came on for hearing on 15 August 2008, it was accepted by both parties that the contractual matters in respect of which the parties were in dispute had not been dealt with by the BDT and both parties consented to that part of the matter being remitted back to the BDT for hearing.
In the circumstances, on 9 September 2008, this Tribunal ordered that:
1.By consent the contractual issues in the matter are remitted to the Building Disputes Tribunal for determination.
That only left the second ground to be determined which stated:
The decision of the BDT in relation to the issue before it was wrong both on law and on the facts.
Particulars of that ground were filed with the Tribunal on 26 May 2008 which expanded that general ground to include the following specific grounds:
1The BDT erred in law and in fact in [12] of its reasons by giving significance to the fact the Counsel for the Complainants did not suggest the wording of any remedy and submitted that the order sought was that the builder remedy to an acceptable standard when it was agreed between the parties and made know to the BDT that they sought only a determination of liability under Sl2 A (1) of the Builders Registration Act. (T:22 T:25)
2The BDT erred in law and in fact when, in paragraph 26 of its reasons it referred to the opinion of Mr Gomme about the cause of the flooding when his report was tendered by consent for the use of a sketch it contained and no other evidence. (T:22 - 25)
3The BDT erred in law and in fact in paragraph 26 of its reasons when it gave significance to the ultimate cause of the flooding instead of to the proximate cause (the relative levels) when the proximate cause was under the control of the builder.
4The BDT erred in law and in fact when, in paragraph 26 of its reasons it failed to take into account the photographs in evidence before it to explain and demonstrate the flooding of the carport.
5The BDT erred in law and in fact when, in paragraph 29 of its reasons, it incorrectly described the complaint as being really about inadequate design when the complaint has at all times been about the performance of the building as constructed.
6The BDT erred in law and in fact when, in paragraph 26, it characterised a complaint about a building as constructed as being really about inadequate design is in contradiction to its ruling in paragraph 23 that mere building in accordance with the contract is not a defence, the levels constructed being in accordance with the contract drawings.
7aThe BDT erred in law and in fact when in paragraph 31 it confused the evidence required to prove to the BDT that the building as constructed is unsatisfactory with the failure to carry out the work in a proper and workman like manner with the result that it fails to address the relevant issue.
7bThe submission was that the various levels and setback would have been apparent to a properly diligent builder and corrective steps should have been taken. (See Complainants' written submissions 11 and 12)
7cThe set back and levels were agreed at 1.766 m and the carport paving is .476m lower than the edge of the road paving from which the setback is measured.
7dThe issue the BDT failed to consider and determine is whether execution of the work in a proper and workman like manner required that a person carrying out the work should have noticed and inquired about the dimensions mentioned in 7c in the circumstances then apparent.
Prior to the hearing on 15 August 2008, the Tribunal was furnished with the following documents:
1)The BDT's reasons for decision of 29 January 2008;
2)The booklet of documents before the BDT at its hearing on 9 May 2007;
3)The affidavit of Mr Shane Daniel Pentonay opposing the application for leave to review and attaching various correspondence between the applicants and respondent's solicitors, and a transcript of the proceedings before the BDT on 9 May 2007;
4)A letter of 9 June 2008 from the applicant's solicitors enclosing:
1.Copy of the transcript of the BDT hearing on 9 May 2007; and
2.Copy of the booklet of papers provided at the BDT hearing on 9 May 2007; and
5)The respondent's outline of submissions dated 29 July 2008.
The applicant did not file any written submissions prior to the hearing and although offered the opportunity to adjourn to do so confirmed that they were content to proceed solely on the oral submissions made at the hearing.
The respondent also made oral submissions at the hearing.
Consideration
The principles to be considered for the granting of leave have been set out by this Tribunal in Tangent Nominees Pty Ltd and Edwards [2005] WASAT 119 and were acknowledged by both counsel in their submissions. Those principles recalled previous decisions of the Supreme Court in Wilson v Metaxas [1989] WAR 285; Wing Luck Foods v Lay Choo Lim [1989] WAR 358 and the District Court in Well Holdings Pty Ltd v Agostino [2001] WADC 174.
The decisions confirm that, generally speaking, this Tribunal should be slow to grant leave. It must be shown that there is no discernable basis for the decision on review or there is a significant question of law, or that the decision is wrong or attended with sufficient doubt. Further, it must be demonstrated that if the decision were not to be reversed that a substantial injustice will result.
Ground 1
The BDT erred in law and in fact in [12] of its reasons by giving significance to the fact the Counsel for the Complainants did not suggest the wording of any remedy and submitted that the order sought was that the builder remedy to an acceptable standard when it was agreed between the parties and made know to the BDT that they sought only a determination of liability under Sl2 A (1) of the Builders Registration Act.
This ground contemplates that [12] of the BDT's reasons was in some way significant in the BDT's conclusions and findings that began at [20] of its reasons for decision.
Paragraph [10] through to [16] of the BDT's reasons for decision are contained under the heading 'Submissions for the Complainants' and [12] states:
Counsel for the complainants did not suggest the wording of any remedy, submitting that the order sought was that the builder remedy to an acceptable standard, that is to make an order of the kind contemplated by s 12A of the Act quoted above. Counsel for the respondent resisted any such order, and did not suggest an alternative.
In his oral submissions before this Tribunal, counsel for the applicant referring to [12] above and stated:
Now, there is some question as to what significance the Tribunal gave to that, but the fact is that the learned chairman has placed it in his reasons for decision. In those circumstances, our submission is that he has clearly misunderstood there and is misdirecting himself as to the matter that he is being required to decide. His reasons don't set out the extent of the weight he gives to that, but nevertheless, it is an indication of an irrelevant consideration taken into account.
Following some exchanges clarifying the matter between counsel for the applicant and the Tribunal, the applicant confirmed that in respect of Ground 1 'it simply points to a potential irrelevant consideration'.
If one reads [12] of the BDT's reasons in the context of [11] immediately preceding it and [13] immediately following it can be seen that the BDT was simply outlining the case put by the complainant. They state:
11.The Tribunal has a contractual jurisdiction pursuant to the Home Building Contracts Act 1991 ... Counsel for the complainants and the respondent stated in their submissions that the complainants did not wish the Tribunal to decide these matters on a contractual basis. The Tribunal has considered this matter only on the basis sought by the parties, particularly the complainants.
12.Counsel for the complainants did not suggest the wording of any remedy, submitting that the order sought was that the builder remedy to an acceptable standard, that is to make an order of the kind contemplated by s 12A of the Act quoted above. Counsel for the respondent resisted any such order, and did not suggest an alternative.
13.Counsel for the complainant submitted that the basis for attributing liability to the builder pursuant to s 12A of the Act is that the builder, applying the ordinary skills of a builder, would know that the design was wrong and that changes would need to be made to produce a result that is suitable for the purpose it built for, that is as a residence and with the amenities of a residence, including, inter alia, usable parking.
Paragraph [12] was part of an explanation which then lead on to [13] where the BDT confirmed what they understood the complainant's case to be.
There is no evidence in the findings or the conclusions of the BDT contained at [20] onwards of its reasons, which shows that the BDT relied for its findings on the issues outlined in [12].
On the contrary, the BDT confirmed at [25] of its reasons the basis on which it determined the matter by stating:
… the complaint is therefore determined solely on the basis on whether the complainants have satisfied the Tribunal that the building work by the respondent that is complained of is within the scope of s 12A(1) of the Act. …
This Tribunal is not satisfied on the evidence before it that the BDT erred as is contended in Ground 1 and that they took into account an irrelevant consideration.
Ground 2
The BDT erred in law and in fact when, in paragraph 26 of its reasons it referred to the opinion of Mr Gomme about the cause of the flooding when his report was tendered by consent for the use of a sketch it contained and no other evidence.
A one and a half page letter dated 16 November 2005 addressed to the applicant from Mr Steve Gomme, a consulting engineer, attached to which was a sketch titled 'Carport Levels Unit 3' was included at page 98 of the booklet of documents before the BDT.
An exchange at page 23 of the transcript of proceedings before the BDT made it clear that only the sketch attached to that one and a half page report was to be admitted into evidence.
Paragraph [26] of the BDT's reasons state:
In regards to the complaint concerning the flooding, the Tribunal is unable to make any such finding. The evidence is generally vague and inconclusive. The evidence, noted above, only observes the presence of stormwater at some time with no explanation of how it got there other than a reference to levels. Indeed, the expert, Mr Gomme, attributes the flooding to a blocked drain in the laneway.
In that paragraph the BDT found that the evidence in regard to flooding was generally vague and inconclusive and that there was no explanation of how the stormwater got there, other than a reference to the levels.
The comment that Mr Gomme attributed the flooding to a blocked drain appears to be added by way of an addendum after the BDT commented on the evidence and made its finding.
Mr Gomme's report appeared to be the only expert opinion in the papers before the BDT.
If the BDT had as contended by the applicant relied on that opinion, it is likely that they would have made a finding that the flooding was the result of a blocked drain in the laneway as stated by Mr Gomme.
The BDT did not do this, instead they found there was no explanation of how the stormwater got there other than a reference to the levels.
To see where the reference to the levels comes from one must examine the exchange at page 23 of the transcript before the BDT, where the sketch attached to Mr Gomme's report was admitted. Council for the applicant stated:
The second page, a little sketch called 'section AA' …
…
Now what that demonstrates is, in layman's terms, when a vehicle drives into the carport the front wheels and the back wheels are at different levels. …
So in [26] of its decision the BDT appear to have taken notice of the reference to the levels in Mr Gomme's sketch which was in evidence, but ignored the comment in Mr Gomme's report where he attributed the flooding to a blocked drain, which was not in evidence as they found there was 'no explanation' of how the stormwater got there 'other than a reference to levels'.
In the circumstances the Tribunal is not satisfied that the BDT erred as contended in Ground 2
Ground 3
The BDT erred in law and in fact in paragraph 26 of its reasons when it gave significance to the ultimate cause of the flooding instead of to the proximate cause (the relative levels) when the proximate cause was under the control of the builder.
The applicant's submissions in respect of this ground were brief. They stated at page 39 of the transcript:
Now, what I am pointing to there derives from, if you like, the law of negligence. When an event occurs, there are a chain of circumstances that give rise to an event, but liability for harm or the consequences of that chain of events attaches to a person who is liable or responsible for the proximate cause, not for causes down the track.
It's not enough, for example, here for the builder to say the real cause of the water getting to this block and flooding it is the block council drain, to which Mr Gomme referred and which we excluded from the evidence for that very reason. The real test of the builder's liability is why did not the builder foresee that problem and deal with it?
Paragraph [26] of the BDT's reasons for decision was discussed under the last ground. However, we need to come back to it again in respect of this ground. To put [26] into context one must first look at [25] as [26] outlines the BDT's finding in respect of the complaint as clarified in [25] which states:
As the Tribunal does not accept that there is in any way to sheet some responsibility to the complainants for the levels, the complaint is determined solely on the basis on whether the complainants have satisfied the Tribunal that the building work by the respondent that is complained of is within the scope of s 12A(1) of the Act. The Tribunal notes in this regard that the complainants bear the onus of proof.
The BDT then goes on to state in [26]:
In regards to the complaint concerning the flooding, the Tribunal is unable to make any such finding. The evidence is generally vague and inconclusive. The evidence, noted above, merely observes the presence of stormwater at some time, with no explanation of how it got there other than a reference to the levels.
That finding is clear and unambiguous. In respect of the cause of the flooding the BDT made its findings based on the evidence put before it and simply stated that it was unable to make the finding urged upon it by the applicant, as, in the BDT's view, the applicant's own evidence was generally vague and inconclusive and 'merely observes the presence of stormwater at some time, with no explanation of how it got there other than a reference to the levels'.
In the last sentence of [26], as explained in the consideration of Ground 2, the BDT added a rider pointing to the comments of the applicant's own expert (which it is accepted were not before the BDT) and the fact that he had attributed the flooding to a blocked drain in the laneway.
However, as explained under Ground 2, it does not appear that the BDT relied on that opinion to reach their decision.
In the circumstances, the Tribunal does not accept that the BDT erred as contended in Ground 3.
Ground 4
The BDT erred in law and in fact when, in paragraph 26 of its reasons it failed to take into account the photographs in evidence before it to explain and demonstrate the flooding of the carport.
In respect of this ground, the only submission by the applicant was to the effect that:
The Tribunal made no reference to the evidence, the photographs, which set out the topography of the ground and the difference in the levels in a way that a person can see with their eye, when those were in fact in evidence before them. So that's Ground 4; simple as that.
On reading the reasons for decision, this contention is simply not correct. At [5] under the heading 'Evidence' the BDT stated:
Mrs Brook also explained a number of the photographs tendered, indicating that there was some run off from the road towards the unit.
Again, under the heading 'Submissions for the Complainants' at [16], the BDT stated:
In regard to the flooding, the submission made was that the flooding was difficult to establish through eyewitnesses, that the large paved areas in front of the unit sloped towards it. The result of stormwater runoff was the cause of collapsing ground, and the evidence given by Mrs Brook and the photographs were said to support this. (Emphasis added)
It was clear that the BDT acknowledged the photographs in evidence before it and as explained under the previous grounds stated at [26] of its reasons:
In regards to the complaint concerning the flooding, the Tribunal is unable to make any such finding. The evidence is generally vague and inconclusive.
There is no evidence to suggest that the BDT failed to take the photographs into account. They clearly acknowledged they were in evidence in respect of flooding but were not convinced by that evidence. The Tribunal is therefore not satisfied that the BDT erred as contended in Ground 4.
Ground 5
The BDT erred in law and in fact when, in paragraph 29 of its reasons, it incorrectly described the complaint as being really about inadequate design when the complaint has at all times been about the performance of the building as constructed.
In its oral submissions, the applicant stated:
What Ground 5 complains about in very short terms is that the Tribunal incorrectly described the complaint as being really about inadequate design.
To understand the BDT's reasoning one must first look at the transcript of proceedings before the BDT particularly page 53 where the chairman stated:
So to understand your case, what your case is notwithstanding the design a builder exercising their skills in constructing the design faced with the inadequacies of the design would not construct because of the obvious inadequacies?
Counsel answered:
Yes, exactly.
When you come to the reasons for decision, the BDT began its reasoning on the issue at [27] through to [30] and stated:
27.In regard to the carpark, the evidence is more complex and attributes a demonstrated cause to the defect that it claimed. The case advanced by the complainants is one based on a lack of utility of what has been built. That is demonstrated here by argument as to the appropriate dimensions required for a vehicle to fit into the carport, based upon dimensions in the Australian Standard applicable to commercial carparks. Put shortly, the levels at which the unit have been constructed do not allow for a sloping entry to the carpark to be constructed, to allow a vehicle of the type mentioned above referred to in the Standard to enter.
28.Clearly, what is being complained of is the' design, rather than the construction of the unit. The complainants, however, do not seek to pursue a claim in contract, that the unit is not fit for the purpose for which it was built, nor is it suggested that the design is sufficient to ground an order pursuant to section 12A (1) of the Act.
29.What is argued is that the respondent ought to have seen the defect in design during construction and taken steps to correct that defect. The lack of workmanship was said to be in the lack of exercise of the skill of a builder to rectify a bad design during construction of it. This is an argument devised to obtain an order pursuant to the Act, without needing to address what is really complained of, and that is an inadequate design.
30.The Tribunal accepts that if the evidence supported this contention advanced by the complainants then the complainants may be entitled to an order of the type claimed. This argument founders on the problem that the facts do not support the contention that the defect was of such a nature that the builder ought to have recognised and remedied it.
It is clear from those reasons, particularly at [27], that the BDT clearly understood 'the case advanced by the complainants' as being 'one based on a lack of utility of what has been built'.
In [28] the BDT confirmed that the complainants did not seek to pursue a claim in contract at that particular hearing and as has been stated earlier, the contract component has already been remitted back to the BDT for hearing.
In the first two sentences of [29] the BDT stated what it understood the applicant's argument to be namely:
What is argued is that the respondent ought to have seen the defect in design during construction and taken steps to correct that defect. The lack of workmanship was said to be in the lack of exercise of the skill of a builder to rectify a bad design during construction of it. ...
It is clear from that, that the BDT knew exactly what was being argued and what the applicant was attempting to achieve and in [30] the BDT acknowledged that with the proper evidence the applicant may well have succeeded and stated:
The Tribunal accepts that if the evidence supported this contention advanced by the complainants then the complainants may be entitled to an order of the type claimed. ...
Although the BDT understood the complainant's argument, at [30] they found:
This argument founders on the problem that the facts do not support the contention that the defect was of such a nature that the builder ought to have recognised and remedied it.
In the final sentence of [29] the BDT did comment that they believed the complainant's argument was:
... an argument devised to obtain an order pursuant to the Act, without needing to address what is really complained of, and that is an inadequate design.
However, although the BDT added that comment, it is clear from the explanation in [29] and [30] that the BDT recognised, understood and dealt with the applicant's contention, but found that the argument foundered on the problem that the facts did not support that contention.
In the circumstances, the Tribunal is not satisfied the BDT erred as contended in Ground 5.
Ground 6
The BDT erred in law and in fact when, in paragraph 26, it characterised a complaint about a building as constructed as being really about inadequate design is in contradiction to its ruling in paragraph 23 that mere building in accordance with the contract is not a defence, the levels constructed being in accordance with the contract drawings.
This ground raises largely the same issue as Ground 5 in that it claims that the BDT characterised the complaint as being really about inadequate design, but in this ground, the applicant refers to an alleged contradiction between the BDT's comments in [23] and [26] of its decision.
Paragraph [23] of the BDT's decision simply sets out the law as the BDT understood it, in a reply to a proposition put by the respondent. At page 15 of the transcript before the BDT, the chair, in an exchange with the respondent's counsel, stated:
So to put it shortly, you are saying that if they build what they are contracted to build then that's the end of the matter?
And counsel for the respondent stated in reply at page 16:
So in answer to your question, sir, we say 'yes' on a 12A case what is faulty or unsatisfactory it needs to be assessed in response of what the contract requires, what the parties have agreed, what the bargain suggests.
When [23] of the decision is read in the context of that exchange, it makes perfect sense and states:
Similarly it is no answer to say that if the unit was built in accordance with the contract between the parties, then that would be a sufficient answer to any claim of insufficient workmanship. In applying a statutory remedy the Tribunal must have regard to the boundaries of its jurisdiction and to the tests and remedies that the particular statute provides. The contract between the parties may define the building work to which section 12A of the Act applies, but the tests are the ones contained in the legislation (see Bradshaw v McGuire WASC (FC) (Unreported, 30 April 1986)). The proposition that construction in accordance with the contract between the parties is determinative of any claim based on section 12A of the Act advanced by counsel for the respondent is no adequate answer to the complaint.
In the Tribunal's consideration of Grounds 2 and 3, it explained how it saw the BDT's reasoning in respect of [26]. In the Tribunal's view [23] simply sets out the law in response to a proposition put by the respondent, whereas in [26] the BDT deals with its findings in respect of the flooding.
The Tribunal sees no contradiction or indeed no correlation between [23] and [26] and is not satisfied that the BDT erred in the way suggested in Ground 6.
Ground 7a
The BDT erred in law and in fact when in paragraph 31 it confused the evidence required to prove to the BDT that the building as constructed is unsatisfactory with the failure to carry out the work in a proper and workman like manner with the result that it fails to address the relevant issue.
Paragraphs 7b and 7c are not grounds in their own right, but rather explanations and state:
7bThe submission was that the various levels and setback would have been apparent to a properly diligent builder and corrective steps should have been taken. (See Complainants' written submissions 11 and 12)
7cThe set back and levels were agreed at 1.766 m and the carport paving is .476m lower than the edge of the road paving from which the setback is measured.
As with previous grounds, for a proper understanding of [31] of the BDT's reasons, it must be read in context with the two preceding [29] and [30].
As outlined in the consideration of Ground 5, the applicant's contention as put to the BDT was set out in the first two sentences of paragraph [29], and in paragraph [30] the BDT confirmed that if the evidence had supported that contention the applicant may have been entitled to an order of the type claimed, however, as previously outlined the BDT went on to state in the second half of [30]:
… This argument founders on the problem that the facts do not support the contention that the defect was of such a nature that the builder ought to have recognised and remedied it.
Paragraph [31] flows directly on from that and states:
The defect claimed was demonstrated to the Tribunal with a complex analysis of the Australian Standard, and the grade of the access that would be required for a vehicle of the type referred to, to enter. In support, the report by Mr Gomme, an engineer, and the helpful arguments of counsel for the complainants are crucial for any understanding of the complaint by the Tribunal. It does appear to the Tribunal that the very complexity of this argument demonstrates that the matters complained of would not have been reasonably apparent to the respondent, exercising the expected skills of a builder.
At [30] and [31] the BDT were attempting to explain that the argument set out in the first two sentences of paragraph [29], namely that:
(1)the respondent ought to have seen the defect in the design during the construction and taken steps to correct that defect; and
(2)the lack of workmanship being the lack of the exercise of the skill of the builder to rectify a bad design during the construction of it,
had floundered for the reasons set out in the second sentence of [30] that the facts do not support a contention that the defect was of such a nature that the builder ought to have recognised and remedied it and, further, that the argument was complex and that that very complexity demonstrated to the BDT that the issue would not have been reasonably apparent to the respondent exercising the expected skills of a builder.
There appears to have been no confusion by the BDT as of the evidence required to adequately prove the contention put forward by the applicant.
The BDT understood the applicant's arguments, but found on the facts and the evidence put before it by the applicant that the issue was complex and that the facts did not support the applicant's contention.
In the circumstances, the applicant has not satisfied the Tribunal that the BDT erred as contended in Ground 7a.
Ground 7d
The issue the BDT failed to consider and determine is whether execution of the work in a proper and workman like manner required that a person carrying out the work should have noticed and inquired about the dimensions mentioned in 7c in the circumstances then apparent.
7c stated:
The set back and levels were agreed at 1.766m and the carport paving is .476m lower than the edge of the road paving from which the setback is measured.
Counsel for the applicant explained the argument in respect of this ground at page 49 of the transcript stating:
The 'faulty and unsatisfactory' part was dealt with by the evidence dealing with the dimensions of the carport and the need for vehicles to get access and evidence about flooding and things of that nature. That's the first thing. It is then said that the 'proper and workmanlike' issue is that the builder should have seen this difficulty arising in the course of construction.
And later:
So the task that we set out to satisfy before the tribunal was to first of all show that the building work is faulty or unsatisfactory. For that we pointed to the dimensions that Mr Gomm[e] indicated, plus the results from the Australian standards, and to the photographs in the evidence of Mrs Brook, showing that water was coming into the carport and flooding it from the road.
Now, as it turns out, the tribunal didn't accept Mrs Brook's evidence and did not look at the photographs and found there was no flooding, but it made no finding at all about access into the carport. So it failed in that regard to even determine that issue.
...
... The 'proper and workmanlike manner' has to be addressed in this way. What would an ordinarily competent builder supervised to the extent required by law have seen and, if observed, done about the circumstances that were there at the time that the building was being built?
In the course of the hearing, it became clear that these differences in level are apparent on the drawings, that they were there for the builder to see, and the issue for the tribunal, which it has completely failed to address, is what did that builder see or should it have seen in the course of construction and should that have led them to question the levels and the design that was set out in the drawing?
Counsel for the applicant recognised that the BDT did not accept Mrs Brook's evidence and although counsel stated that the BDT did not look at the photographs, as stated earlier under Ground 4 that allegation is not borne out by paragraphs [5] and [16] of the BDT's reasons for decision.
At page 91 of the transcript before the BDT, counsel for the applicant accepted that there was no actual evidence before the BDT that a car could not actually access the carport when he stated:
It might be that you can in fact fit the car in but ... well, as Mr Pentonay says that, no-one tried it. Have a look at the photograph and you will see why no-one tried it. I did actually consider trying it with a 4 wheel drive and decided that I was likely to ground it.
The chairman then put it to counsel:
So what you're saying Mr Marsh is that at the end of the day, leaving aside what ever evidence there is as to the utility of what's there, that to establish a standard we look to the Australian ... to establish what is functional ... what may be satisfactory, we look to the Australian Standard?
Counsel answers:
'Yes, as a guide' ... there's any number of ways it could have been done and, you know, I could have ... we could have commissioned a survey of vehicles or a survey of carports, but at the end of the day this is all have [sic] been done there and it sets, in our submission a satisfactory guide. And we don't take the point that it misses by a couple of millimetres. What we say is that it's a long way out of the range.
As outlined above, counsel for the applicant in oral submissions contended that the BDT did not appear to make any specific finding about access into the carport. However, at [27] the BDT stated:
Put shortly, the levels at which the units have been constructed do not allow for a sloping entry to the carpark to be constructed, to allow a vehicle of the type mentioned above referred to in the Standard to enter.
In this ground the applicant contents that the BDT failed to consider and determine whether execution of the work in a proper and workman like manner required that a person carrying out the work should have noticed and enquired about the dimensions mentioned in Ground 7c or, as counsel put it, in oral submissions:
What did the builders see or should have seen in the course of construction and should that have lead them to question the levels and design that was set out in a drawing?
The BDT clearly dealt with those issues. In the first two sentences of 29, which has been referred to many times through this decision, the BDT identified that issue and answered it squarely in the second sentence of [30] where it stated:
This argument founders on the problem that the facts do not support the contention that the defect was of such a nature that the builder ought to have recognised and remedied it.
The Tribunal is therefore not satisfied that the BDT erred as is contended in Ground 7d.
Conclusion
The reasons for decision of the BDT demonstrate that the BDT understood the case being put by the applicant. In respect of the flooding, the BDT was unable to make the findings sought on the basis that the evidence was generally vague and inconclusive.
In respect of access to the carport, and the contention that the respondent ought to have seen the defect and taken steps to correct it during construction, the BDT found that that argument foundered on the problem that the facts did not support the contention put forward by the applicant.
On the case put by the applicant, the BDT was not satisfied on the evidence before it that the applicant made out their case and this Tribunal finds no error that is sufficient to satisfy the requirements for leave in this matter.
As referred to earlier, counsel for the respondent put forward the proposition which was clarified by the chairman as:
You are saying that if you built to what they contracted to build then that's the end of the matter.
In answer to that proposition, the BDT set out at [23] the position as it saw it. It referred to Bradshaw v McGuire (unreported, WASC, 30 April 1986) and in this Tribunal's view correctly rebutted that contention by stating:
[T]he proposition that construction in the accordance with the contract between the parties is determinative of any claim based on section 12A of the Act advanced by counsel for the respondent is no adequate answer to the complaint.
It was open to the applicant to frame its claim differently but it chose not to. In fact the chairman of the BDT raised that issue with counsel for the applicant at page 53 of the transcript and stated:
Chairman:I think it's common ground between the parties that the scope of this contract was a design and build. Do you have anything to say about ... presumably the specifications were designed to produce what's been produced. Do you have anything to say about the design in relation to workmanship issues? Is the design inadequacy in your ... as ... is it clearly arises in your allegations in complaint? Is that evidence of insufficient workmanship.
Counsel for the applicant replied: there is some confused authority about that and that's why we didn't rely on that.
...
you could make an argument that says it's a workmanship issue to properly prepare the drawings in accordance with the client's instructions or implied instructions and that would be to prepare drawings and ultimately to produce a working building.
Chairman:Right. So to understand your case, what your case is is notwithstanding the design a builder exercising their skills in constructing the design faced with the inadequacies of the design would not construct because of the obvious inadequacies?
Counsel for the applicant: Yes, exactly.
The BDT was not confused about what it was being asked to decide. In fact, it was very clear and as can be seen at a number of points throughout the transcript, it clarified the issue with counsel for the applicant.
The applicant sought to run a particular proposition which they tried to support with evidence which the BDT either found vague and inconclusive or not supporting the contention put or too complex.
The BDT accepted that if the evidence supported the contention advanced by the complainant, then the complainant may be entitled to an order of the type claimed. However, in respect of each of the issues put forward, found that the argument foundered on the facts.
In all the circumstances, this Tribunal is not satisfied as per the required test that there is no discernable basis for the BDT's decision or that there is a significant question of law or that the decision is wrong or attended with sufficient doubt.
Further, even if the Tribunal had been satisfied in respect of any one of those issues, it certainly has not been demonstrated by the applicant that if the decision were not reversed, that a substantial injustice would result.
Not being persuaded by any of the Grounds put forward by the applicant and not being satisfied as per the required tests application for leave is refused and the matter is dismissed.
Orders
1.The application for leave is refused.
2.The matter is dismissed.
I certify that this and the preceding [113] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR M SPILLANE, MEMBER
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