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, the amount of $38,160 for the costs of carrying out remedial work (building remedy order)[3] and secondly, the amount of $75,729 by way of compensation for breaches of the building contract by Bruce Construction (contract remedy order).[4]
[2] Pursuant to s 11(1)(d) of the Complaint Resolution Act, which became a proceeding in the Tribunal pursuant to s 42 of the State Admininstrative Tribunal Act 2004 (WA) (SAT Act).
[3] Pursuant to s 38 and 36(1)(b) of the Complaint Resolution Act.
[4] Pursuant to s 43 of the Complaint Resolution Act (being a HBWC remedy order).
Bruce Construction has made an application to the Tribunal seeking a review (review application) of the decision to make the building remedy order and the contract remedy order (together, the payment orders) and the Tribunal has made an order in this review proceeding staying the operation of the decision to make the payment orders.[5]
[5] Pursuant to s 25(2) of the SAT Act.
A review application cannot be made unless the Tribunal gives leave for a review and a review application must be made no later than 30 days after an order has been made.[6]
[6] Section 58(2) and s 58(5) of the Complaint Resolution Act.
The review application was lodged with the Tribunal out of time and Bruce Construction has applied for an extension of time[7] to make the review application and for leave to review the decision to make the payment orders.
[7] Pursuant to r 10 of the State Administrative Tribunal Rules (2004) (WA).
For the reasons which follow, the Tribunal has decided to extend the time for Bruce Construction to make the review application, but to refuse leave for a review. Consequently, the review application will be dismissed, and the stay of the decision to make the payment orders will be lifted.

Procedural history

The Tribunal which conducted the final hearing on 21 and 22 September 2020 in the original proceeding and made the decision to make the payment orders was constituted by Senior Member Eddy and Senior Sessional Member Affleck (original Tribunal). At the final hearing Ms Miklavs represented herself and Mr Timothy Bruce (Mr Bruce), as director, represented Bruce Construction.
The reasons for the decision to make the payment orders were published in Miklavs and Bruce Construction Design Pty Ltd [2021] WASAT 48 (original Tribunal decision).
The Tribunal for this decision is constituted by Senior Member Aitken.[8]
[8] Senior Member Aitken is a legally qualified senior member, which meets the requirement of s 58(5) of the Complaint Resolution Act regarding the constitution of the Tribunal for consideration of an application for leave to review.
This decision is determined entirely on the documents pursuant to s 60(2) of the SAT Act.
Bruce Construction has filed a copy of the transcript of the final hearing conducted by the original Tribunal. Bruce Construction and Ms Miklavs have each filed a statement of issues, facts and contentions, which includes submissions and references to passages from the transcript, together with documents in support of their statements.

Issues to be determined

The two issues to be determined by the Tribunal in this decision are:
1)Should the Tribunal grant an extension of time for Bruce Construction to make the review application?
2)If the first issue is answered in the affirmative, should the Tribunal grant leave to Bruce Construction to apply for review of the original Tribunal decision?

The exercise of the discretion to grant an extension of time

The general principles which apply to the exercise of the discretion to grant an extension of time are set out by Hall J in Di Virgilio v McCleary [2012] WASC 437 (Di Virgilio), at [38]-[41] as follows:
38The power to grant an extension of time to commence proceedings is generally discretionary in nature. The use of the word 'may' in r 9 confirms the existence of a discretion here. Whether the discretion should be exercised in favour of the appellant in any case depends on an assessment of the particular facts and circumstances.
39The discretion exists for the sole purpose of enabling a court or tribunal to do justice between the parties. It can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether there would be an injustice it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application for an extension of time: Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479, 459 (McHugh J).
40In a passage quoted with approval and applied by Malcolm CJ with whom Kennedy and Franklyn JJ agreed in Gerando v Gerando (1997) 18 WAR 450, 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 the 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.
41In O'Connor and The Town of Victoria Park Barker J noted that the four factors identified by Kennedy J in Esther Investments had been referred to in Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 by Brennan CJ and McHugh J. The correctness of those four factors had not been questioned by the High Court. Barker J applied those factors in determining whether an extension of time for a review of a decision of the Town Planning Appeal Tribunal should be granted in O'Connor.
Hall J notes at [45] of Di Virgilio, that those general principles are not exhaustive, nor do they limit the possible relevance of other factors. They are a useful guide to the exercise of the discretion, not a set of strict rules.
In Goedhart and Western Australian Planning Commission [2006] WASAT 49 at [21] the Tribunal stated that the threshold to establish an 'arguable case' is not particularly onerous and referred to the following statement by Kirby J in Jackamarra v Krakouer and Anor (1998) 195 CLR 516 at 540:
The party seeking indulgence [of an extension of time] bears the burden of persuading the decision-maker to grant its request. A consideration relevant to that exercise is whether the case is arguable. If it is hopeless, unarguable or bound to fail, the request for an extension of time will be refused. However, this is basically because to grant it would be futile.

The parties' contentions regarding an extension of time

Bruce Construction says that an extension of time to make the review application should be granted for the following reasons:
1)The number of days between the date of the payment orders and the date on which the review application was made is 40 days, being 10 days more than the allowed period, which is not a significant delay.
2)Bruce Construction was not legally represented at the time of the making of the review application nor prior to that and was, accordingly, disadvantaged in considering what courses of action were available to it regarding the payment orders.
3)The proposed grounds for review are clearly arguable.
4)The only prejudice which Ms Miklavs would suffer from an extension of time being granted is having to contest the submissions by Bruce Construction in the review proceeding, which would not cause any real prejudice to Ms Miklavs or a prejudice sufficient to overcome the likely injustice to Bruce Construction if an extension of time is not granted.
Ms Miklavs accepts that there was not a lengthy delay by Bruce Construction in making the review application and Ms Miklavs also accepts the reason given by Bruce Construction for the delay.
However, Ms Miklavs says that an extension of time should not be granted for the following reasons:
1)Ms Miklavs contends that Bruce Construction does not have an arguable case. I will refer to the reasons given by Ms Miklavs for this contention in the section of this decision regarding whether leave should be granted for review of the decision to make the payment orders.[9]
2)Ms Miklavs rejects the claim by Bruce Construction that the only prejudice she would suffer from an extension of time being granted is having to contest the submissions by Bruce Construction in the proceeding. Ms Miklavs says that the longer she and her family who live in the home have to wait for an order (whether for Bruce Construction to rectify defects or a monetary order) the longer they will have to live in a home with a substantial amount of defects, which includes water ingress and consequent mould, which adversely affects their health.

Extension of time to make the review application granted

[9] See [52] of these reasons.

I have reached the following conclusions in respect of the four factors referred to in [14] above:
1)The length of the delay of 10 days was not significant; Ms Miklavs accepts this.
2)The reason for the delay is satisfactory; Ms Miklavs also accepts this.
3)There is an arguable case for the review, in that it is not 'hopeless, unarguable or bound to fail'.[10]
4)Ms Miklavs' understandable desire for the original Tribunal decision not to be reviewed out of time is not, relevantly, a prejudice to her.[11] However, I accept Ms Miklavs' contention that there will be some prejudice to her if an extension of time is granted because there will then be the possibility of leave being granted for the review of the original decision, which may result in there being some delay before there is finality regarding the final order in the matter.
[10] See [16] of these reasons.
[11] O'Connor and Town of Victoria Park [2005] WASAT 161 at [49].
In these circumstances, I have decided that it is in the interest of justice between the parties that the time for Bruce Construction to make the review application be extended to 11 May 2021, which was the date on which the review application was lodged. Although there is some prejudice to Ms Miklavs by an extension of time being granted, that is outweighed by the fact that the delay in making the application for leave to review is not significant, there is a satisfactory explanation for it and there is an arguable case for review.

The criteria for the grant of leave to review

As noted by the Tribunal (constituted by Parry J) in Jetpoint Nominees Pty Ltd and Lee [2021] WASAT 10 at [38], the principles concerning whether leave should be granted, under s 58(5) of the Complaint Resolution Act, to apply for an internal review, under s 58(2) of the Complaint Resolution Act, of an order made by the Tribunal under s 38 or s 43 of the Complaint Resolution Act are well established.
The main considerations are as stated by the Tribunal in Myran Holdings Pty Ltd and Bombak [2013] WASAT 20 (Myran Holdings) at [8], based on the discussion in Filimon and Rimmer [2013] WASAT 13. Of course, the range of considerations is not closed, and other matters may be relevant in a particular case.
In Myran Holdings the Tribunal said the following at [8]:
The following principles can be gleaned from the discussion of the applicable criteria for the grant of leave to review under s 58(2) of the [Complaint Resolution] Act as discussed in Filimon and Rimmer [2013] WASAT 13:
1)It is necessary to show that the decision of the original Tribunal was wrong or attended with sufficient doubt.
2)It must be shown that if leave were not to be granted, the applicant would suffer a substantial injustice.
3)It will normally not be sufficient that the decision appealed from is apparently wrong or attended with doubt. Something more will need to be shown, such as that there is a significant question of law to be considered, or some other feature, which requires the consideration of the Tribunal to avoid a substantial injustice of (sic) leave were not to be granted.
4)The decisions of the original Tribunal are not to be read minutely and finely with an eye keenly attuned to the perception of error.
5)A broad view should be taken of all the material before the original Tribunal, and this Tribunal should be slow to grant leave to review or to allow reviews except in cases where, clearly, there is no discernible basis for the decision or, for example, where fundamental rules of natural justice have been breached.
6)Leave may be granted in respect of only some and not other grounds of the proposed review.
7)Having regard to the objects of the Tribunal, and because any review is by way of a hearing de novo, there is all the more reason to be particularly discerning about whether sufficient doubt exists to open the possibility of leave being granted.
8)In considering challenges to the weight of evidence, regard must be given to the expertise of the members of the original Tribunal.

Bruce Construction's grounds for the grant of leave to review

Bruce Construction contends that leave should be granted for review of the original Tribunal decision for the following reasons:
1)The lack of experience of Senior Member Eddy in the building industry and that 'in forming the [original Tribunal decision] [Senior Member] Eddy did not allow or give enough weight to the experience of [Senior Sessional Member] Affleck and his comments and questions raised during the hearing' (ground 1).
2)There is no discernible basis for the original Tribunal decision on the question of whether to make a monetary order rather than a remedial work order and, further and in the alternative to this, there is a question of law to be considered on that question (ground 2).
3)The original Tribunal erred in exercising its discretion to make a monetary order rather than a remedial work order and that decision was wrong or attended with sufficient doubt (ground 3).
4)There would be a substantial injustice suffered by Bruce Construction if the original Tribunal decision were left unreversed (ground 4).
I will deal with each of the grounds in turn, by considering the arguments presented by Bruce Construction and Ms Miklavs and I will then state my decision in respect of each ground.

Ground 1

There is no need for me to refer to the arguments presented by Ms Miklavs in respect of ground 1, because I do not accept any of the arguments presented by Bruce Construction in respect of ground 1 for the following reasons.
Bruce Construction says that 'in the opening of the hearing [Senior Member Eddy] made a comment to the effect that she had no experience in the building industry hence why [Senior Sessional Member Affleck] was assisting'. However, Bruce Construction has not identified in the transcript where this comment was made at the commencement of the final hearing. The only comment that Senior Member Eddy made at the commencement of the final hearing was 'I am Senior Member Lisa Eddy, and this is Senior Sessional Member Richard Affleck. He's the specialist member of the panel'.[12]
[12] ts 2, 21 September 2020.
Bruce Construction has referred to a section of the transcript[13] where Senior Member Eddy said that she was more used to the planning list than the building list and that when she took on the matter it was very early on when she started in the building list and it took her by surprise.
[13] ts 143-144, 21 September 2020.
The usual practice of the Tribunal when dealing with complaints of faulty or unsatisfactory building work is for the Tribunal to be constituted by a legally qualified member and a sessional member who is a registered building service practitioner (commonly referred to as a registered builder).
The original Tribunal was constituted by Senior Member Eddy and Senior Sessional Member Affleck.[14] Senior Member Eddy was an experienced legally qualified senior member of the Tribunal[15] and Senior Sessional Member Affleck is an experienced registered building service practitioner and civil engineer.
[14] Pursuant to s 11(1) and s 11(6) of the SAT Act, the President of the Tribunal specifies the Tribunal members who are to constitute the Tribunal for dealing with a particular matter.
[15] Senior Member Eddy, sadly, has since passed away.
The decision was made jointly by Senior Member Eddy and Senior Sessional Member Affleck. The contention by Bruce Construction that the original Tribunal decision was 'formed' solely by Senior Member Eddy and that she 'did not allow or give enough weight to the experience of [Senior Sessional Member Affleck] and his comments and questions raised during the hearing' is misconceived. The payment orders and the original Tribunal decision were made jointly by Senior Member Eddy and Senior Sessional Member Affleck, which is reflected in the use of the personal pronoun 'we' by the original Tribunal members in the original Tribunal decision.

During a final hearing in a building dispute matter, it is not unusual for the members who constitute the Tribunal to express preliminary views or make observations and to ask questions. That should not be regarded as being indicative of any final view, which will only be reached after the hearing has concluded and the Tribunal members have jointly considered all the evidence and submissions presented during the hearing. The fact that Senior Sessional Member Affleck made comments and asked questions during the final hearing cannot be taken to indicate what his position would be when making the final decision jointly with Senior Member Eddy.
Bruce Construction has also referred to parts of the transcript of the final hearing[16] in which it alleges that Senior Sessional Member Affleck stated that allowing a builder to remedy defects is 'the usual course of action'. I have read those parts of the transcript and I do not accept that this is what Senior Sessional Member Affleck, in fact, said.
[16] ts 113, 21 September 2020, ts 139, 21 September 2020 and ts 201-202, 22 September 2020.
Ground 1 has not been made out.

Ground 2

Bruce Construction says that the original Tribunal's reasoning on whether to make a monetary order rather than a remedial work order is short (being eight paragraphs long) with no consideration of previous decisions by the Tribunal or a court on this issue. Bruce Construction contends that it is plain from the original Tribunal's consideration of this issue that there is no discernible basis for its decision to make a monetary order.
Bruce Construction says that in recent Tribunal decisions which considered the question of whether to make a monetary order[17] rather than a remedial work order,[18] the Tribunal's consideration of the applicable issues, evidence and legal framework is significantly more detailed and extends to various matters not considered by the original Tribunal in the original Tribunal decision. In that regard, Bruce Construction refers to the decisions of the Tribunal in Hippydaze Pty Ltd and Mener Group Pty Ltd [2019] WASAT 92 (Hippydaze) and in Kos and DND Building Co Pty Ltd [2020] WASAT 95 (Kos).
[17] An order under s 36(1)(b) of the Complaint Resolution Act.
[18] An order under s 36(1)(a) of the Complaint Resolution Act.
Bruce Construction says that in Hippydaze the Tribunal identified the following matters (which are not exhaustive) that may be relevant to the exercise of the Tribunal's discretion to make a building remedy order in monetary terms:
a)whether there has been an irretrievable breakdown in the relationship between the parties;
b)whether the owner has justifiably lost confidence in the workmanship and skill of the builder;
c)whether the builder has previously attempted to remedy the regulated building service unsuccessfully; and
d)whether the builder has refused to perform remedial work when invited to do so.
Bruce Construction says that in Kos the Tribunal gave a detailed consideration of the applicable issues, evidence and legal framework when considering the question of whether to make a monetary order rather than a remedial work order, including the following matters:
a)The Tribunal said that it is common practice to give a builder an opportunity to remedy its own defective work. This is because an order to remedy compensates the owner while minimising the hardship to the builder who can usually carry out the work at substantially less cost than the amount charged by a third party contractor.
b)The Tribunal said that a finding that the parties' relationship has broken down is not determinative. That is because, in most proceedings, a breakdown in the relationship is a natural occurrence of a dispute arising between an owner and builder.
c)The Tribunal considered the applicants' claim that they had lost confidence in the builder to undertake the remedial works and ultimately held that this claim was unjustified based on the experience and previous awards won by the builder in that matter.
d)The Tribunal considered the builder's willingness to attend the property and rectify the complaint items.
e)The Tribunal considered that there are a number of advantages to an owner having the builder return to perform remedial work, which includes the opportunity to 'convert' the work order to a monetary order under s 51 of the Complaint Resolution Act if the work is not performed, or only partly performed, or performed in a faulty or unsatisfactory manner. If the owner were to engage a third party to rectify the builder's work, questions may arise as to who is responsible for any faulty remedial work, particularly if the underlying issues remain. Ensuring that liability remains clear in circumstances where subsequent remedial work is itself faulty or unsatisfactory is an advantage to the owner.
Ms Miklavs agrees that the matters in Hippydaze and Kos, set out above, are matters which should be considered by the Tribunal when deciding what type of building remedy order to make. However, Ms Miklavs contends that:
a)There was an irretrievable breakdown in the relationship between herself and Bruce Construction.
b)She has justifiably lost confidence in the workmanship and skill of Bruce Construction.
c)She allowed Bruce Construction opportunities to remedy defective building work, but Bruce Construction did not take up those opportunities. Ms Miklavs says that she and her family moved out of the property on two occasions to allow Bruce Construction to remedy the defects, but Bruce Construction's workmanship was poor and ineffective, so the defects were not remedied. She also says that sometimes Bruce Construction's tradespeople did not show up to do the work at all.
Ms Miklavs also refers to a passage in [54] of Kos, in which the Tribunal stated that the nature and extent of the complaints may raise concerns about the proficiency and competency of the builder and support a finding by the Tribunal that a monetary order is more appropriate than ordering a builder to perform remedial work, citing Jennings and Howitt [2019] WASAT 133 at [31].
The part of the original Tribunal decision which deals with the decision to make the building remedy order is at [228]-[240] as follows:
228We are satisfied that there are a number of items of work that Bruce Construction have not carried out in a proper and proficient manner or are unsatisfactory. We consider that we should deal with the Miklavs complaint by making a building remedy order.
229The Miklavs submit that the Tribunal should make a building remedy order that requires the payment of an amount of money to be paid by the respondent, with the amount of money being the amount it would cost them to have a third party carry out the remedial works. They have provided quotes for remedial work; one produced by Minchin & Sims, one by ICS Australia Building Services Group and a quote in relation to the Terrazzo tiles by Nanoworx.
230The respondent submits that it was prevented from finishing the building works because the Miklavs unreasonably prevented them from doing so. It submits that any building remedy order made by the Tribunal should require Bruce Construction to carry out remedial work rather than the payment of any money to the applicants. Bruce Construction says that it would not have cost it anything to carry out that remedial work, other than the cost of supervising the 'trades' who it would organise to remediate their works.
231Bruce Construction did not provide any alternative costings for works admitted to require remedial work or in relation to any of the other items. We do not accept Mr Bruce's evidence that it would not cost Bruce Construction anything to carry out remedial works at this stage, some considerable time after the company was last at the site.
232The Miklavs say that do not have any confidence in Bruce Construction and do not wish to allow them back onto their property. It is not for the Miklavs to elect the type of building remedy order that the Tribunal makes, however their preferences are relevant.
233Bruce Construction's preference to be ordered to carry out remedial work, rather than be required to make a monetary payment, is also relevant to us.
234Having seen the degree of distress the Miklavs experienced when dealing with Bruce Construction's representative in the course of the Tribunal hearing, and to a lesser degree, as reflected in the communications between the parties, and to the Tribunal, in the course of the proceedings, we have determined that we should not make a building remedy order requiring Bruce Construction to carry out remedial work.
235We have decided that we should make a building remedy order that Bruce Construction pay the Miklavs a specified amount.
236The Minchin & Sims quote for remedial works for the matters which we have found to be defective amount to $23,160. This does not include any quote for the repair of grouting to the Terrazzo tiles.
237The ICS quote for the same matters amounts to $28,166. This amount does not include the amount in the ICS quote in relation to Terrazzo tiles. We do not include this because the quote relates to a number of matters including drummy tiles. We are not satisfied that it correlates sufficiently to our findings in this matter in relation to the Terrazzo tiles.
238The Nanoworx quote to cut out grout lines and re-grout and to grind chipped tiles is $20,306. As discussed earlier in these reasons, this quote provides for an epoxy grout to be used, which is a higher level of specification than agreed to in the Miklavs' contract. Having regard to the difference in cost of using the epoxy grout that we were told, we consider that a sum of $15,000 is an approximation of the quote without epoxy glue.
239We are satisfied that the building remedy order should require Bruce Construction to pay the Miklavs an amount that equates to the quote from Minchin & Sims for the remedial work in addition to the Nanoworx quote as adjusted by us. We have used the Minchin & Sims quote because we think that quote is effectively corroborated by the ICS quote. Mr Peterson gave evidence that the ICS quote was made on the basis of carrying out each item of remedial work separately. He advised the Tribunal that if works were carried out together the total amount of the quote would be reduced.
240We will make a building remedy order requiring Bruce Construction to pay to the Miklavs the total amount of $38,160.
Section 77(2) of the SAT Act provides that the reasons that the Tribunal gives for a final decision have to include the Tribunal's findings on material questions of fact, referring to the evidence or other material on which those findings are based.
In the context of a consideration of s 77 of the SAT Act the Court of Appeal in Centex Australasia Pty Ltd v Commissioner for Consumer Protection [2017] WASCA 79 (Centex) at [103] set out the following propositions:
The statutory terminology used to define the obligation to provide reasons can and should be construed in the context of a line of decisions which, notwithstanding their dependence upon particular statutory provisions, inform the approach taken to the construction of particular statutory provisions such as those applicable to this case. The propositions established in those cases include the following:
(a)the primary function of reasons is to allow an appeal court to determine whether the decision involved appellable error and to provide procedural fairness to the litigants who are entitled to know why they have been successful or unsuccessful;
(b)the statement of reasons must explain the actual path of reasoning in sufficient detail to enable a court to see whether the decision is vitiated by error;
(c)reasons need not be lengthy and elaborate, nor do they require a reference to all of the evidence led or to every submission advanced by the parties;
(d)there is no mechanical formula which can be applied to determine whether reasons are adequate in any particular case - much will depend upon the particular circumstances of any individual case;
(e)usually it will be necessary to look at the reasons as a whole, viewed in the context of the evidence;
(f)where one set of evidence is accepted over a conflicting set of significant evidence the trial judge must set out his or her findings as to how it is that one has been accepted over the other;
(g)inadequacy of reasons does not necessarily amount to appellable error - rather, an appeal court will only intervene when the inadequacy is such as to give rise to a miscarriage of justice;
(h)appellable error arising from inadequate reasons does not necessarily result in a new trial - in an appropriate course the appeal court may itself determine the matter.
There is a discernible basis for the decision to make the building remedy order stated at [234] of the original Tribunal decision.[19] However, the original Tribunal decision does not explain in sufficient detail the path of reasoning to arrive at the decision to make a monetary building remedy order, rather than a remedial work order, in respect of other matters, such as those set out in Hippydaze and Kos, which were relevant to the situation in the original proceeding. A particular matter, which was relevant, but not addressed was that Mr Bruce stated during the original proceeding that Bruce Construction was willing to remedy the defects alleged by Ms Miklavs.
[19] See [42] of these reasons.
Accordingly, in my view ground 2 is made out in respect of the decision to make the building remedy order because an error of law has been made by the original Tribunal by not providing adequate reasons for its decision to make a monetary building remedy order rather than a remedial work order.
However, establishing that the original Tribunal has fallen into error is not in and of itself a sufficient basis on which leave to review should be granted. The applicant must also establish that if leave were not granted and the decision at first instance was left unreversed, that the applicant would suffer a substantial injustice.[20] I will deal with this when I deal with ground 4.
[20] Myran Holdings at [8](2), Jennings at [27] and Centex at [103](g).
In my view, ground 2 is not made out in respect of the decision of the original Tribunal to make the contract remedy order, for the following reasons:
a)In its statement of issues, facts and contentions in this review proceeding Bruce Construction refers to both the building remedy order and the contract remedy order. However, Bruce Construction has only referred to the reasons of the original Tribunal regarding the making of the building remedy order and the case law and principles regarding the question of whether the building remedy order should have been a remedial work order rather than a monetary order.
b)Bruce Construction does not seem to have recognised that the contract remedy order was made under s 43 of the Complaint Resolution Act in respect of Ms Miklavs' HBWC complaint[21] regarding contractual issues.
[21] See the definition of HBWC complaint in s 3 and the provision in s 5(2) of the Complaint Resolution Act.
c)The original Tribunal's reasons for making the contract remedy order can be seen in [144], [151]-[153] and [241]-[252] of the original Tribunal decision, which are as follows:
144It is not in dispute that the parties initially agreed to the contract sum of $400,000 and then agreed to some further works being added to the home building contract that included, amongst some other things, a roof terrace. The agreement to include additional works caused the contract price to be increased to $450,000.
…
151Although the parties agree that they entered into a contract for alterations and additions as per another builder's plans at a fixed price of $400,000, we have no evidence of a final contract in these terms being entered into. We accept that this was the agreement reached initially between the parties. However, they went on to agree to some changes to the other builder's plans that included the addition of a roof terrace, with the contract price of $450,000. This is the contract which was executed. We are satisfied that the parties entered into a contract for alterations and additions, based on another builder's plans, amended to incorporate a number of agreed changes including the addition of a roof terrace. The plans that reflected that agreement are those attached to the planning application made in or around December 2018.
152We are satisfied that the parties agreed to vary the contract after it was executed. This variation was to remove the roof terrace and necessarily related structures from the plans so that planning approval could be achieved in a timely fashion. The varied agreement was for alterations and additions in accordance with the Second Building Licence plans, the structural plans dated April 2019 and the construction plans dated May 2019.
153The agreed variation to the contract was not reduced to writing (other than by way of updated plans) and was not signed by the parties. While Mr Bruce asserts that the variation did not involve any reduction in the contract price, we do not accept that this was agreed between the parties. The Miklavs have no recollection of any such agreement and it does not make sense the any owner would agree to the deletion of a portion of agreed works without any commensurate reduction in contract price, particularly in the absence of any documentation or other evidence to support or justify why there would not be such a reduction.
…
241In relation to the contractual dispute, the applicants submit that a HBWC order should be made that requires the payment of an amount of money to them by the respondent.
242As can be seen from the table below, Mr Bird's quote in relation to the items not built under contract, excluding those items that were not referred or that we are not satisfied constitute a breach of contract amounts to $30,275. This total also excludes items NB-24 to NB30 as these relate to the variation of contract to remove the roof terrace.
243The ICS quote for the contract items that we have found were not built but should have been (excluding the roof terrace) amounts to $44,976. Mr Peterson made it clear that he had priced each item individually, and that if the works were carried out together, this would very likely result in an overall reduction in price. We think this reasonably explains the small difference between the ICS quote and the Minchin & Sims quote in relation to the contractual items.
244We are satisfied that it is reasonable in the circumstances to require Bruce Construction to pay to the Miklavs in accordance with Mr Bird's quote for the contract breaches.
245Mr Peterson priced the roof terrace works at $69,680 to provide on a remedial basis. We do not think it is reasonable to require Bruce Construction to make payment to the Miklavs on that basis, as we have accepted that they agreed to the contract variation. On their evidence, the contract never included an amount more than $50,000 to reflect the roof terrace works.
246Mr Bird quoted the roof terrace works at $45,454, based on what he assumed to have been the contract allowance for those works. The contract amount which was originally discussed as $400,000, changed to $450,000 to reflect the final agreement. Of that amount, 10% reflected goods and services tax.
247We accept Mr Bruce's evidence that there were some other changes to the original builder's plans that accompanied the addition of the roof terrace. Mr Bruce asserted that the removal of the roof terrace did not reduce the contract price at all. As we have discussed earlier, we do not accept that.
248The timing of the discussions between the parties, and the changes from the original agreement to build, the other builder's plans at a cost of $400,000 to the final contract agreement at the fixed price of $450,000 was short. From the Miklavs' perspective, the increase in cost to $450,000 from $400,000 was because of the addition of the roof terrace.
249Bruce Construction did not cause the variation to be reduced to writing and signed by both parties. It breached provisions of Pt 2 of the Home Contracts Act in failing to do so.
250Bruce Construction did not advise the Miklavs how the variation to remove the roof terrace would impact the contract price. Bruce Construction did not put forward any evidence from which we can make any realistic assessment of the amount of credit that should be given for the removal of the roof terrace, if it was not the same as the amount the contemplated contract price was changed when the roof terrace was added.
251In those circumstances, we consider that it is reasonable to include in a HBWC remedy order that Bruce Construction pay to the Miklavs $45,454.
252We are satisfied that we should make a HBWC remedy order requiring Bruce Construction to pay to the Miklavs a total of $75,729, being $45,454 plus $30,275.
d)Those reasons are adequate, because they explain the path of reasoning to arrive at the decision to make the contract remedy order.

Ground 3

Bruce Construction contends that the original Tribunal erred in exercising its discretion to make a monetary order rather than a remedial work order in favour of Ms Miklavs by:[22]
[22] See Bruce Construction's statement of issues, facts and contentions.
•failing to take 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 HBWC remedy order;
•failing to take account or give adequate weight to the fact that the usual order that follows the usual circumstances of a finding of faulty and/or unsatisfactory work is an order requiring the [builder] to remedy its own work;
•failing to take account or give adequate weight to the advantages afforded to both parties by a remedial (work) order which are not afforded to them by the making of a monetary order;
•failing to take account or give adequate weight to [Bruce Construction's] willingness to perform a remedial order;
•giving too much weight to [Ms Miklavs'] desire for a monetary order;
•giving too much weight to [Ms Miklavs'] claim that the relationship between the parties had broken down;
•not finding such breakdown to be irretrievable, or at a stage where to compel [Bruce Construction] to return would have inevitably resulted in an ongoing dispute between the parties; [and]
•giving too much weight to [Ms Miklavs'] claim that [she] had lost confidence in [Bruce Construction] without any consideration of whether this claim was justified.
Bruce Construction also contends that in the original Tribunal's reasoning in the original Tribunal decision:[23]
[23] See Bruce Construction's statement of issues, facts and contentions.
•The [original Tribunal] incorrectly recounted that [Bruce Construction] said it would not cost anything to carry out remedial works. [Bruce Construction's] evidence as reflected in the original Tribunal's decision at [230] was that the cost to Bruce Construction would be the supervision of trades who would be carrying out the remedial works (these trades being the same trades who completed the defective work and who are contractually obliged to [Bruce Construction] to remedy defects).
•The [original Tribunal] placed too much weight on the emotional response of [Ms Miklavs] during the hearing, for example [Ms Miklavs] leaving the hearing when [Senior Sessional Member] Affleck made the comment that builders would in the ordinary course be allowed to rectify defects.
•The [original Tribunal] placed little or no weight on the emotional response of [Ms Miklavs] being a natural occurrence of a dispute arising between an owner and builder. The [original Tribunal] failed to consider that any perceived breakdown in the relationship of the parties is not determinative as to whether to make a monetary order or remedial works order.
•In considering the relationship between the parties the [original Tribunal] generally referred to evidence of communications between the parties and in the course of the proceedings, but fails to refer to any evidence specifically.
•The [original Tribunal] failed to consider whether the breakdown in the relationship between the parties was irretrievable or at a stage where to compel [Bruce Construction] to return would have inevitably resulted in ongoing dispute between them.
•The [original Tribunal] placed too much weight on [Ms Miklavs'] claim that [she] had lost confidence in [Bruce Construction] to carry out remedial works and failed to consider whether this claim was justified in the circumstances, in particular whether:
i)the skills, expertise, reputation or past work of [Bruce Construction] justify such a claim being upheld; and
ii)the circumstances of [Bruce Construction] not having been given a reasonable opportunity to remedy the defects previously are relevant.
•The [original Tribunal] placed little or no weight on the willingness of [Bruce Construction] to perform a remedial order.
•The [original Tribunal] failed to consider whether the order made ensures finality in the litigation.
•The [original Tribunal] failed to consider the advantages offered to the parties should a remedial work order be imposed.
In support of those contentions, Bruce Constructions has referred to various parts of the transcript of the final hearing conducted by the original Tribunal.
Ms Miklavs contends as follows:
a)The original Tribunal members clearly demonstrated, in [11] of the original Tribunal decision (being at the outset of the decision-making process) that they turned their minds to the possibility of making a remedial work order.
b)The original Tribunal members stated at [232] and [233] of the original Tribunal decision that they considered the preferences of both parties in determining what order to make.
c)Bruce Construction was allowed access to the home on numerous occasions to enable it to conduct rectification works. However, Bruce Construction and its subcontractors failed to turn up to the home on those occasions. Bruce Construction also refused to accept many of the defects prior to the final hearing conducted by the original Tribunal.
d)Mr Bruce did a walk-through of the home and was going to send Ms Miklavs a timeline of the items that needed rectifying and when they would be rectified by, but Ms Miklavs never received this timeline from Bruce Construction, which is what prompted her to make a complaint, which resulted in the proceeding in the Tribunal.
e)Ms Miklavs says that her argument was always that she did not want Bruce Construction back at the home, because the relationship between the parties had irretrievably broken down and she had lost all trust in Bruce Construction. Ms Miklavs says that she made this clear in her opening and closing statements at the final hearing conducted by the original Tribunal.
f)Ms Miklavs refers to the statement made in Gemmill Homes Pty Ltd v Sanders [2018] WASC 179 (Gemmill Homes) at [135], which was cited in Kos at [51], that the Tribunal has no power to compel an owner or require an owner to allow access to his or her property to enable work to be carried out in accordance with a building remedy order.
g)Ms Miklavs says that she does not want Bruce Construction back at the home, because she does not trust Bruce Construction or their quality of workmanship.
h)Ms Miklavs says that she has made it clear that she will seek to stop Bruce Construction from coming onto her property because she does not trust them and is concerned that Bruce Construction may cause further damage to the home.
In Gemmill Homes at [107]-[110], [120]-[121], [125] and [133][135], Smith AJ (as Her Honour then was) made the following observations regarding the exercise of the discretion conferred on the Tribunal as to what type of building remedy order should be made in a matter before it where the Tribunal is satisfied that a building remedy order should be made:
107The general discretion conferred by s 38(1) of the Complaint Resolution Act to make a building remedy order is not limited by any mandatory considerations.
108Legal reasonableness provides the boundaries of the area within which a decision maker has a genuinely free discretion. It is, however, implied in a discretionary power conferred by statute that the discretion must be exercised reasonably.
109To determine the boundary, regard must be had to the scope, subject matter and purpose of the statutory discretionary power.
110Thus, it is necessary to consider the subject matter, scope and purpose of the statutory scheme that creates and confers on the Tribunal a discretion to make building remedy orders.
…
120One of the matters that will be relevant in the majority of matters that come before the Tribunal (where a building remedy order is sought) is the current state of the relationship between the parties. The Tribunal will need to determine whether the relationship is such that if a work order is made, such an order is workable, or whether the state of animosity between the parties is such that the co operation necessary to carry out such an order is absent, so that a payment or a compensation order is the appropriate order to be made.
121Thus, the relationship between the parties will be a relevant matter as to what type of building remedy order is sought by the complainant and whether the form of the order sought is opposed by the building service provider and the reasons why such an order is opposed.
…
125Although s 36(1) could be construed as providing an unfettered discretion to make any of the orders specified in s 36(1)(a), (b) and (c), where a statutory grant of power is silent on the matters to be taken into account, as set out in [107] - [110], the matters that a statutory decision maker (such as the Tribunal) are required to take into account may arise by implication from the subject matter, scope and purpose of the legislation.
…
133.It must be borne in mind that the statutory limits on the exercise of the discretion to make a building remedy order are only those set out in s 38. The repository of the power conferred to make an order (the Tribunal) must form an opinion that the regulated building service (that is the subject of the building service complaint) has not been carried out in a proper and proficient manner, or is faulty or unsatisfactory.
134If the requisite opinion is formed, the Tribunal is required to make a building remedy order. It then has to exercise the discretion conferred in s 36(1) to make a particular order in the form of s 36(1)(a), (b) or (c). Thus, no 'right' or requirement on a party to a complaint to elect arises.
135I do, however, agree with the point made in Nelson[24] that the Tribunal has no power to compel an owner or require an owner or a person who has the right to control entry to a property to allow access to a site to enable an amount of work to be carried out in accordance with a building service work order. If there is evidence that such access was likely to be denied then that would be a relevant matter of fact that the Tribunal could take into account.
[24] Nelson v Mardesic (1999) 22 SR (WA) 42.
In my view, ground 3 is not made out in respect of the contract remedy order, because Bruce Construction has not presented any arguments that the decision of the original Tribunal to make that order was wrong or attended with doubt. As I have already stated,[25] Bruce Construction does not seem to have recognised that the contract remedy order was made under s 43 of the Complaint Resolution Act in respect of Ms Miklavs' HBWC complaint regarding contractual issues. Bruce Construction has only presented arguments that the original Tribunal erred in exercising its discretion to make a monetary order, rather than a remedial work order when it made its decision to make the building remedy order.
[25]. See [48](b) of these reasons.
Because the reasons for the decision to make the building remedy are inadequate and the matters set out in Hippydaze and Kos[26] are not addressed in the original Tribunal decision, I accept that there is an argument that the decision of the original Tribunal to make the building remedy order in the form of a payment order, rather than a remedial work order, is attended with doubt. Accordingly, in my view, ground 3 is made out in respect of the decision of the original Tribunal to make the building remedy order.
[26] See [37]-[39] of these reasons.
However, as I have already stated,[27] establishing that the original Tribunal has fallen into error is not in and of itself a sufficient basis on which leave to review should be granted. The applicant must also establish that if leave were not granted and the decision at first instance was left unreversed, that the applicant would suffer a substantial injustice.[28] I will deal with this when I deal with ground 4.

Ground 4

[27] See [47] of these reasons.

[28] Myran Holdings at [8](2), Jennings at [27] and Centex at [103](g).

Bruce Construction contends that there would be a substantial injustice suffered by it if the original Tribunal decision and the payment orders were left unreversed, because a payment order is significantly different in nature and does not have the advantages offered by a remedial work order.
Ms Miklavs disputes that Bruce Construction would suffer a substantial injustice if the payment orders are not reversed. Ms Miklavs makes the point that the contract remedy order is comprised of:
a)the amount of $45,454 for work agreed not to be done under the building contract (the roof terrace), which has not been challenged by Bruce Construction; and
b)the amount of $30,275 for work which Bruce Construction failed to do altogether.
In Jennings and Howitt [2019] WASAT 133 (Jennings) the Tribunal (constituted by Senior Member Wallace, as Her Honour then was) considered whether leave should be granted under s 58(2) of the Complaint Resolution Act for the review of an earlier decision of the original Tribunal in that matter to make an order for the payment of monies under s 36(1)(a) of the Complaint Resolution Act. One of the grounds of appeal was that the original Tribunal had made an error of law by failing to exercise its discretion as to the appropriate type of building remedy order to be made, because it adopted the election of a monetary order by the respondent in review. The Tribunal decided that ground of appeal had been made out, but then, at [27]-[28] in Jennings, stated:
27However, establishing that the original Tribunal has fallen into error is not in and of itself a sufficient basis on which leave to review should be granted. The applicant must also establish that if leave were not granted and the decision at first instance was left unreversed, that the applicant would suffer a substantial injustice.
28It is common cause that when considering whether a substantial injustice will be suffered, the Tribunal considers whether a rehearing could result in a different outcome being reached, thus justifying the parties incurring additional costs, delay, inconvenience and the often experienced emotional turmoil associated with re-litigating the dispute.
That approach is consistent with the proposition stated by the Court of Appeal in Centex at [103](g)[29] (even though that was stated in the context of a different type of error) and I respectfully adopt that approach here.
[29] See [44] of these reasons.
I have read the transcript of the final hearing conducted by the original Tribunal in this matter and I note the following relevant passages in the transcript.
At the commencement of the first day of the final hearing, Mr Bruce confirmed that a list of defects was emailed to him by Ms Miklavs following a walk-through of the home with Mr Bruce on 4 February 2020. Mr Bruce also confirmed that there was no dispute that the items on that list are defects and that Bruce Construction was willing to remedy them.[30]
[30] ts 2-3, 21 September 2020.
The list of defects was identified in the hearing book.[31]
[31] ts 4, 21 September 2020.
Ms Miklavs said that Mr Bruce was meant to respond to her after he received the list of defects, saying how he was going to remedy those items and provide a timeline within which he was going to do that. Ms Miklavs said that she never received anything further from Mr Bruce, which is why she then engaged a lawyer and ended up at the Tribunal.[32]
[32] ts 3-4, 21 September 2020.
The original Tribunal members then sought clarification regarding whether the items of complaint which were before the Tribunal in the original proceeding aligned with the items in the list of defects and explained to Ms Miklavs that she might need to lodge a further complaint with the Building Commissioner if any of the items in the list of defects were not included in the complaint which was before the Tribunal.
As the original Tribunal members were going through that process, Mr Bruce asked if he could 'butt in' and said that Bruce Construction was willing and ready to fix the defects and he thought that 'going back through the delayings (sic) for the family' would just 'prolong the timeframes here'. He then said that cost is the thing that he would like to dispute, but that he was trying to not complicate this for the Miklavs family, and he wanted to get this resolved.[33]
[33] ts 24, 21 September 2020.
Senior Member Eddy (as the presiding member), responded to Mr Bruce by saying that if Ms Miklavs did not want to let Bruce Construction come back then that is her choice, but if the Tribunal thought that it would have been reasonable to let Bruce Construction to come back then this option might result in Ms Miklavs getting less money because it might reflect what Bruce Construction says it would have cost it to fix the defects.[34]
[34] ts 25, 21 September 2020.
Further on, Senior Member Eddy noted that Bruce Construction had not complied with the orders which had been made in relation to producing evidence. Senior Member Eddy noted that Bruce Construction was contending that it was willing to do the work and therefore the cost of carrying out the remedial work would be the cost to it, but that due to the lack of evidence from Bruce Construction there was no way for the Tribunal to determine that cost.[35]
[35] ts 31, 21 September 2020.
Senior Member Eddy also advised Mr Bruce that he could seek an adjournment to the following day of the final hearing which would give him time to identify what he would say is the correct cost to remedy the defects of each complaint item, compared to what Ms Miklavs said was the correct cost.[36] Mr Bruce chose not to seek that adjournment and the final hearing proceeded.
[36] ts 31, 21 September 2020.
In her opening statement, Ms Miklavs said that her evidence during the final hearing would show that for several months both on her own and with the assistance of a lawyer, which had come at great financial cost to her, she had tried to work with Bruce Construction regarding contractual issues and to resolve and fix minor and major defects, with no resolution and a lack of communication, response and action from Bruce Construction.[37]
[37] ts 71, 21 September 2020.
Ms Miklavs went on to say that her evidence would justify why she had lost all confidence in Bruce Construction's ability to carry out rectification works and to build items which had not been built. She also said that she had given Bruce Construction many opportunities to carry out rectification work and that Bruce Construction had had more than enough time to act. Ms Miklavs then said that due to the stress and anxiety from dealing with Mr Bruce she no longer trusted Bruce Construction.[38]
[38] ts 72, 21 September 2020.
Mr Bruce was given the opportunity to make an opening statement but chose not to do so.[39]
[39] ts 73, 21 September 2020.
Ms Miklavs called Mr Toby Bird as an expert witness. Mr Bird is a registered builder and the managing director of Minchin and Sims Builders Pty Ltd. Mr Bird had performed an inspection and prepared both an inspection report and a rectification cost estimate report for Ms Miklavs. In response to a question from Ms Miklavs, Mr Bird said that he would respond to the notification of a building defect within a week of receiving it by writing to the owner and he would plan to and implement how his company was going to rectify the defect and notify the owner of what work was going to be done and the date on which it would be done.[40] Mr Bruce did not challenge that evidence from Mr Bird.
[40] ts 107-108, 21 September 2020.
During the second day of the final hearing Ms Miklavs called Mr Craig Peterson as an expert witness. Mr Peterson is a registered building supervisor and the managing director of ICS Australia Building Services Group. Mr Peterson had performed an inspection and prepared a report for Ms Miklavs.

In response to a question from Ms Miklavs, Mr Peterson said that his company deals with defects quickly once it is aware of them, although he did not mention any specific time frame. Mr Peterson mentioned that his company does a lot of commercial work as well as residential work. Unfortunately, Senior Member Affleck then made a comment that in his experience in the realm of civil engineering work getting contractors to attend to defects is 'only slightly more difficult than pulling teeth'. Ms Miklavs said that she did not understand what that comment was meant to mean and asked whether it was okay that she sent emails to Bruce Construction to which there was no response. Senior Member Affleck said that he was not making any judgment about what Ms Miklavs had done in that regard and that he was referring to his experience in civil engineering work, not building work. At that point Ms Miklavs became distressed and explained that it did not seem like a fair comment.[41] Senior Member Affleck subsequently apologised for what he described as a 'silly comment', and Ms Miklavs thanked him for that.[42]
[41] ts 201-202, 22 September 2020.
[42] ts 205, 22 September 2020.
After Mr Peterson withdrew as a witness, Ms Miklavs requested to be able to make a comment and then stated that she was finding the hearing an extremely difficult process. She said that she had tried very hard to work with Bruce Construction on the defects, that she had welcomed him to come back and fix the defects and had been ignored for a very long period of time. Ms Miklavs said it was all well and good that now during the hearing Mr Bruce was agreeing that the complaint items are defects, but that months and months ago when she was asking for his attention she was ignored. Ms Miklavs then said that while she was sitting there in close proximity to Mr Bruce she was hearing 'sniggering comments and laughing' and it was very hard to stay composed during that, because it did not feel like Bruce Construction was taking it seriously.[43] Mr Bruce did not say anything in response to Ms Miklavs' assertion about his conduct. Senior Member Eddy stated that each party was allowed to have emotions and express them, as long as nobody was rude to the other person when they are speaking. Senior Member Eddy assured both Ms Miklavs and Mr Bruce that she and Senior Sessional Member Affleck were listening to both sides of the evidence and that they would not come to a conclusion until they had thoroughly looked at and understood both sides of the evidence and that they would remain impartial while they did that.[44]
[43] ts 203, 22 September 2020.
[44] ts 204, 22 September 2020.
After the lunch break on the second day of the final hearing Ms Miklavs and her husband, Mr Peter Miklavs were both affirmed and stated under affirmation that the facts which they had asserted in their statement of issues, facts and contentions dated 24 July 2020 were true.[45]
[45] Although only Ms Miklavs was the applicant, both Ms Miklavs and Mr Miklavs were stated to be the authors of the applicant's statement of issues, facts and contentions.
The Tribunal gave Mr Bruce the opportunity to cross-examine (question) Ms Miklavs and Mr Miklavs regarding the facts asserted by them in their statement of issues, facts and contentions.
In their statement of issues, facts and contentions in the original proceeding Ms Miklavs and Mr Miklavs stated that they had been trying hard to work with Bruce Construction to have defects fixed since September 2019 and that their family had moved out of the home two times for five days at a time, plus several times for the entire day, allowing Bruce Construction plenty of time and opportunity to resolve defects and complete the build. They also stated that they had several site meetings with Mr Bruce and that they had given him clear lists of defects. They identified those documents as a 'To do' list dated September 2019, a 'To do' list dated 4 October 2019, and a 'Building and Finishes Issues/Defects/Problems' document attached to an email dated 17 February 2020.
In cross-examination, Mr Bruce asked Mr Miklavs if Mr Bruce had called him in late February or March 2020 and Mr Miklavs had declined the call and sent a text saying, 'Please email me or message me'? Mr Miklavs answered that question by saying that after Mr Bruce had received the notice of proposed complaint,[46] Mr Bruce had called him and he had sent a text to Mr Bruce saying 'Please reply with an email or text message' and that Mr Bruce did not do that. Mr Bruce then did not pursue any further cross-examination and said, 'that's all I have got to say'.[47] Senior Member Eddy asked Mr Bruce if he had any further questions and Mr Bruce said 'That's all. Yes. I'm happy with everything. Yes. I think everything has been put forward'.[48]
[46] A notice of proposed complaint is a document required to be given by a complainant to a proposed respondent before they can lodge a complaint with the Building Commissioner.
[47] ts 266, 22 September 2020.
[48] ts 267, 22 September 2020.
Senior Member Eddy then asked Ms Miklavs and Mr Bruce how and when they would like to make closing submissions. Mr Bruce said that he would like to make his closing submissions orally and immediately and Ms Miklavs said that she wanted to submit written closing submissions.
In his brief oral closing submissions, Mr Bruce said that he had stated many times during the final hearing and leading up to the final hearing that he had always maintained a responsibility to rectify and remedy the agreed defects. Mr Bruce said that the only reason these defects have not been completed is the 'inexplicable condition of the client in not allowing [him] back to site'.[49]
[49] ts 271, 22 September 2020.
In my view, it is clear from the submissions made by the parties during the final hearing in the original proceeding and the evidence which was before the original Tribunal, that a number of matters arise which are relevant to the exercise of the discretion of the Tribunal regarding whether a building remedy order should be made under s36(1)(a) of the Complaint Resolution Act (a remedial work order) or under 36(1)(b) of the Complaint Resolution Act (a monetary order). These matters are:
a)Bruce Construction was given many opportunities by Ms Miklavs to remedy the building defects which had been identified and it failed to do so.[50]
b)Mr Bruce said at the outset of the final hearing that Bruce Construction was willing and ready to fix the defects and he thought that 'going back through the delayings (sic) for the family' would just 'prolong the timeframes here'.[51] I understand that comment to mean that Mr Bruce did not want the original Tribunal to consider the issue of why Bruce Construction had not remedied the building defects.
c)When Mr Bruce was given the opportunity during the final hearing to cross-examine (question) Ms Miklavs and Mr Miklavs regarding the facts asserted by them in their statement of issues, facts and contentions regarding their attempts to have Bruce Construction remedy the defects, Mr Bruce did not challenge those asserted facts.[52]
d)During the final hearing Mr Bruce gave a considerable amount of oral evidence regarding the making of the building contract and the building work carried out and he was cross-examined at some length by Ms Miklavs.[53] However, Mr Bruce did not give any evidence regarding any action he had taken to carry out remedial work in respect of the faulty or unsatisfactory building work.
e)Then in his closing submissions Mr Bruce said that the only reason the defects have not been completed is the 'inexplicable condition of the client in not allowing [him] back to site'.[54] However, Mr Bruce did not refer to any evidence which had been presented to the original Tribunal to justify that assertion.
[50] See [62]-[64], [70], [71] and [76]-[80] of these reasons.
[51] ts 24, 21 September 2020.
[52] See [78]-[80] of these reasons.
[53] ts 244-258, 22 September 2020.
[54] See [82] of these reasons.
In my view, due to the failure of Bruce Construction to take appropriate steps to remedy the faulty or unsatisfactory building work in a timely manner, despite being given the opportunity by Ms Miklavs to do so, Ms Miklavs has justifiably lost confidence in Bruce Construction undertaking any further remedial work and Ms Miklavs does not want to allow Bruce Construction access to her property to do any further work. That loss of confidence was noted by the original Tribunal in [232] of the original Tribunal decision.
I also note that in the original Tribunal decision, the original Tribunal found that:
a)There was no Addenda Specification in the building contract documentation and Ms Miklavs had not seen and/or signed the Addenda Specification which Bruce Construction claimed formed part of the contract documentation and put into evidence in the original proceeding.[55]
b)None of the various sets of plans put into evidence in the original proceeding were signed by either Ms Miklavs or Bruce Construction.[56]
c)There was an agreed variation to the building contract between Bruce Construction and Ms Miklavs to remove the roof terrace, which was not put into writing and signed by the parties.[57]
[55] Original Tribunal decision at [138], [139] and [157].
[56] Original Tribunal decision at [141] and [142].
[57] Original Tribunal decision at [152] and [153].
None of those findings have been challenged by Bruce Construction. In my view, they constituted a significant failure by Bruce Construction to fulfill its obligations under the Home Building Contracts Act 1991 (WA) (HBC Act), which applied to the building contract.[58] This is a factor which also justifies Ms Miklavs' loss of confidence in Bruce Construction undertaking any further work on the home.
[58] The building contract is a home building work contract for the purposes of the HBC Act and the failures referred to in [85] of these reasons did not meet the requirements of s 4 and s 7 of the HBC Act in respect of the making of a home building work contract and a variation of such a contract.
Taking a broad view of all the evidence which was before the original Tribunal, in my view, it was open to the original Tribunal to form the view that:
a)There is an irretrievable breakdown in the relationship between Ms Miklavs and Bruce Construction, because Ms Miklavs has justifiably lost confidence in Bruce Construction being able to perform the required remedial work, due to its failure to take action to do so after the walk-through on 4 February 2020 and its failure to perform remedial work when given the opportunity by Ms Miklavs to do so prior to that.
b)Ms Miklavs made it clear that she is not willing to allow Bruce Construction access to the home to perform any remedial work and the Tribunal has no power to compel Ms Miklavs or require her to allow Bruce Construction access to the home to perform remedial work.
c)Therefore, the original Tribunal could exercise its discretion to make the building remedy order in the form of a payment order, rather than a remedial work order.
In my view, if there were to be a rehearing of the question of whether the building remedy order should be in the form of a payment order or a remedial work order, in the circumstances of this matter, it is not at all likely that a different outcome would result and, therefore, there is not a sufficient doubt to open the possibility of leave being granted.
Therefore, in my view, no substantial injustice will be suffered by Bruce Construction by refusing leave for Bruce Construction to apply for review of the decision of the original Tribunal to make the building remedy order.
I accept the point made by Ms Miklavs at [58] of these reasons regarding the contract remedy order. Therefore, in my view, no substantial injustice will be suffered by Bruce Construction by refusing leave for Bruce Construction to apply for review of the decision of the original Tribunal to make the contract payment order.

Leave to apply for review refused

Ground 1 has not been made out, but grounds 2 and 3 have been made out in respect of the decision of the original Tribunal to make the building remedy order. However, ground 4 has not been made out in respect of the decision of the original Tribunal to make the building remedy order. Therefore, I have decided to refuse leave for Bruce Construction to apply for review of the decision of the original Tribunal to make the building remedy order.
None of the grounds have been made out by Bruce Construction in respect of the decision of the original Tribunal to make the contract remedy order. Therefore, I have decided to refuse leave for Bruce Construction to apply for review of the decision of the original Tribunal to make the contract remedy order.

Conclusion

It follows from my decision to refuse leave for Bruce Construction to apply for review of the decision of the original Tribunal to make the payment orders, that I should make an order that the stay of the payment orders is lifted and an order that the review application is dismissed.

Orders

The Tribunal will make the following orders:
1.The time for the applicant to make the application for leave to review is extended to 11 May 2021.
2.The application for leave to apply for review of the decision of the Tribunal to make the building remedy order and the HBWC order on 1 April 2020 in proceeding CC 638 of 2020 is refused.
3.The stay, made by the order of the Tribunal in this proceeding on 8 June 2021, of the operation of the building remedy order and the HBWC remedy order made by the Tribunal on 1 April 2020 in proceeding CC 638 of 2020 is lifted.
4.The application for review is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR D AITKEN, SENIOR MEMBER
24 DECEMBER 2021