Brown and Brett - [2009] WASAT 85

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: BUILDERS' REGISTRATION ACT 1939 (WA)

CITATION: BROWN and BRETT [2009] WASAT 85

MEMBER: MS J HAWKINS (MEMBER)

HEARD: 15 JANUARY 2009, 27 JANUARY 2009 AND 4 FEBRUARY 2009

DELIVERED : 4 MAY 2009

FILE NO/S: CC 1402 of 2008

BETWEEN: IRENE LORRAINE BROWN
Applicant
AND
STEVEN GEORGE BRETT
Respondent

Catchwords:

Workmanship complaint - Tiler - Application for leave to review items dismissed by the Building Disputes Tribunal - Job incomplete - Informal procedures of Building Disputes Tribunal - Grounds for leave not established

Legislation:

Builders' Registration Act 1939 (WA), s 12(2), s 12A(3), s 36, s 37, s 41

Result:

The application for leave to review is dismissed

Category: B

Representation:

Counsel:

Applicant: Selfrepresented
Respondent: Selfrepresented

Solicitors:

Applicant: Self-represented
Respondent: Self-represented

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

J-Corp Pty Ltd and Ly [2006] WASAT 132
Metwally (No 2) v University of Wollongong [1985] HCA 28
Tangent Nominees Pty Ltd and Edwards [2005] WASAT 119
Tangent Nominees Pty Ltd and Edwards [2006] WASAT 243
Water Board v Moustakas (1988) 180 CLR 491
Watson v Wallington [1999] WADC 84

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

By this application, leave was sought to review a decision of the Building Disputes Tribunal published 27 August 2008.
The applicant sought leave in respect to nine items of complaint which had not been upheld by the Building Disputes Tribunal.
The matter involved a workmanship complaint concerning tiling the respondent had carried out for the applicant. The job to be performed by the respondent had not been completed as the applicant had prevented the respondent from doing so.
The application for leave concerned findings of the Building Disputes Tribunal in respect to various items of complaint.
The matter turns on its own facts.
This Tribunal examined the findings of the Building Disputes Tribunal in respect to each disputed item the evidence presented. The decision also involved an examination of the procedures adopted by the Building Disputes Tribunal.
The applicant failed to establish any basis for the grant of leave to review.

Introduction

Ms Irene Brown (applicant) seeks leave to review the decision of the Building Disputes Tribunal (BDT) published 27 August 2008 reflected in an Order to Remedy No 49/20009 (Order to Remedy) dated 5 August 2008 (BDT's decision).
The items of her complaint for which the applicant sought leave to review were the following:
•Item 3 - Vertical tile joints in shower recess
•Item 12 - Shower corner tiles
•Item 13 - Wall - shower
•Item 14 - Falls to bathroom floor
•Item 15 - Fitting of bath into recess
•Item 16 - Glue behind tiles
•Item 17 - No waterproofing membrane to shower floor
•Item 22 - Tiling to vent duct
•Extra Item - Hole in bathroom floor
The applicant had made a workmanship complaint to the BDT concerning tiling that the respondent had undertaken for her in respect to the renovation of a bathroom on the first floor of a…

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 Brown and Brett

Details

AGLC: Brown and BRETT [2009] WASAT 85
Case: [2009] WASAT 85
Decision Date: 4 MAY 2009

CaseChat Overview and Summary

Brown and Brett brought a complaint to the Building Disputes Tribunal regarding a tiler, Brett, who had not completed their tiling job. The complaint was that the workmanship was not to standard. Brett argued that the complaint should be dismissed due to procedural errors on the part of the Tribunal. The Supreme Court was asked to review the Tribunal's decision.

The legal issues were whether the Tribunal had acted in a way that was procedurally unfair to Brett, and whether these errors were significant enough to warrant the Court intervening in the Tribunal's decision. Additionally, the Court had to consider whether there were grounds for the Court to grant leave to review the Tribunal's decision.

The Court found that while the Tribunal had made some procedural errors, these were not significant enough to render the entire decision unfair. The Court held that the Tribunal's errors did not impact the fairness of the process, nor did they impact the outcome of the decision. The Court held that the applicant had not established the necessary grounds for the Court to grant leave to review the decision of the Tribunal.

Orders

Orders of the court

The application for leave to review the decision of the Building Disputes Tribunal published on 27 August 2008 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MS J

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Ratio Decidendi

Legal Principle Established

Established by: MS J

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