BRUCE CONSTRUCTION DESIGN PTY LTD and MIKLAVS - [2021] WASAT 166

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   BRUCE CONSTRUCTION DESIGN PTY LTD and MIKLAVS [2021] WASAT 166
MEMBER:   MR D AITKEN, SENIOR MEMBER
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   23 DECEMBER 2021
FILE NO/S:   CC 704 of 2021
BETWEEN:   BRUCE CONSTRUCTION DESIGN PTY LTD
Applicant
AND
ALEXIS MIKLAVS
Respondent

Catchwords:

Building Services (Complaint Resolution and Administration) Act 2011 (WA) - Application for extension of time to make application for leave to review - Application for leave to review - Whether remedial work order or payment order should be made - Factors relevant to exercise of discretion as to type of building remedy order which should be made - Inadequate reasons for decision - Whether substantial injustice will be suffered if decision left unreversed

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5(1), s 5(2), s 11(1)(d), s 36(1)(a), 36(1)(b), s 38, s 43, s 51, s 58(2), s 58(5)
Home Building Contracts Act 1991 (WA)
State Administrative Tribunal Act 2004 (WA), s 11(1), s 11(6), s 25(2), s 42, s 60(2), s 77, s 77(2)
State Administrative Tribunal Rules 2004 (WA), r 10

Result:

Time extended for application for leave to review
Leave to apply for review refused
Application for review dismissed

Category: B

Representation:

Counsel:

Applicant	:	N/A
Respondent	:	N/A

Solicitors:

Applicant	:	Larri Legal
Respondent	:	N/A

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

Centex Australasia Pty Ltd v Commissioner for Consumer Protection [2017] WASCA 79
Di Virgilio v McCleary [2012] WASC 437
Filimon and Rimmer [2013] WASAT 13
Gemmill Homes Pty Ltd v Sanders [2018] WASC 179
Goedhart and Western Australian Planning Commission [2006] WASAT 49
Hippydaze Pty Ltd and Mener Group Pty Ltd [2019] WASAT 92
Jackamarra v Krakouer and Anor (1998) 195 CLR 516
Jennings and Howitt [2019] WASAT 133
Jetpoint Nominees Pty Ltd and Lee [2021] WASAT 10
Kos and DND Building Co Pty Ltd [2020] WASAT 95
Miklavs and Bruce Construction Design Pty Ltd [2021] WASAT 48
Myran Holdings Pty Ltd and Bombak [2013] WASAT 20
Nelson v Mardesic (1999) 22 SR (WA) 42
O'Connor and Town of Victoria Park [2005] WASAT 161

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

In 2019 Bruce Construction Design Pty Ltd (Bruce Construction) carried out alterations and additions to the home of Ms Alexis Miklavs (Ms Miklavs) at 57 Margaret Street, Cottesloe (the home) under a building contract between them (building contract).[1]
[1] See Miklavs and Bruce Construction Design Pty Ltd [2021] WASAT 48 at [1].
Ms Miklavs lodged a complaint with the Building Commissioner under s 5(1) and s 5(2) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (Complaint Resolution Act) alleging faulty workmanship and breaches of the building contract.
The Building Commissioner referred the complaint to the Tribunal[2] (original proceeding) and after a final hearing the Tribunal made orders that Bruce Construction pay to Ms Miklavs first,…

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.

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Details

Case: [2021] WASAT 166
Decision Date

CaseChat Overview and Summary

Bruce Construction Design Pty Ltd has applied for an extension of time to make an application for leave to review the decision of the State Administrative Tribunal (Tribunal) made on 1 April 2020 to make a building remedy order and a contract remedy order in respect of an alteration and addition to Ms Alexis Miklavs' home at 57 Margaret Street, Cottesloe (the home) carried out by Bruce Construction under a building contract. The application for leave to review was lodged out of time and Bruce Construction has applied for leave to review the decision of the original Tribunal. The issues to be determined by the Tribunal in this review proceeding are: 1) whether the time for Bruce Construction to make the review application should be extended, and 2) if so, whether leave should be granted for Bruce Construction to apply for review of the decision of the original Tribunal. The Tribunal has decided to extend the time for Bruce Construction to make the review application, but to refuse leave to Bruce Construction to apply for review of the decision of the original Tribunal to make the building remedy order and the contract remedy order. Consequently, the review application is dismissed and the stay of the payment orders is lifted. The reasons for the decision are as follows. The Tribunal has decided to extend the time for Bruce Construction to make the review application, because the delay in making the review application was not significant, there is a satisfactory explanation for the delay, there is an arguable case for the review and although Ms Miklavs would suffer some prejudice if an extension of time is granted, the delay in making the review application is not significant and there is an arguable case for review. In deciding whether leave should be granted for Bruce Construction to apply for review of the decision of the original Tribunal to make the building remedy order, the Tribunal considered the following matters. Bruce Construction contended that the original Tribunal decision to make a building remedy order in the form of a monetary order, rather than a remedial work order, was wrong or attended with doubt, because the original Tribunal failed to take into account or give adequate weight to the fact that Bruce Construction had not been given a reasonable opportunity to perform any remedial work prior to Ms Miklavs' application being made for a building remedy order. The Tribunal found that the original Tribunal decision to make a building remedy order in the form of a monetary order, rather than a remedial work order, was wrong or attended with doubt, because the original Tribunal's reasons for the decision were inadequate. However, the Tribunal found that Bruce Construction would not suffer a substantial injustice if the original Tribunal decision were left unreversed, because if the matter were reheard it was not at all likely that a different outcome would result. In deciding whether leave should be granted for Bruce Construction to apply for review of the decision of the original Tribunal to make the contract remedy order, the Tribunal found that none of the grounds for review had been made out, because the original Tribunal's reasons for the decision to make the contract remedy order were adequate. It follows from the Tribunal's decision to refuse leave for Bruce Construction to apply for review of the decision of the original Tribunal to make the payment orders, that the Tribunal should make an order that the stay of the payment orders is lifted and an order that the review application is dismissed.

Orders