BUILDING SERVICES BOARD and WEST - [2016] WASAT 143

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: BUILDING SERVICES (REGISTRATION) ACT 2011

CITATION: BUILDING SERVICES BOARD and WEST [2016] WASAT 143

MEMBER: JUSTICE J C CURTHOYS (PRESIDENT)
MR P DE VILLIERS (MEMBER)
MS D QUINLAN (MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 21 DECEMBER 2016

FILE NO/S: VR 158 of 2016

BETWEEN: BUILDING SERVICES BOARD
Applicant
AND
JEFFREY WEST
Respondent

Catchwords:

Registered building service practitioner - Registered building service contractor - Whether disciplinary matters exist - Misleading and deceptive conduct - Failure to comply with an order - Negligence

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 36
Building Services (Registration) Act 2011 (WA), s 53, s 56(2)(e), S 58(1)(i), s 58(3)
Home Building Contracts Act 1991 (WA), s 25C, s 25C(2)
State Administrative Tribunal Act 2004 (WA), s 60(2), s 87(1), s 87(2)

Result:

Disciplinary matters found to exist and the allegations proven - global fine of $15,000 imposed and costs of $3,200

Summary of Tribunal's decision:

The respondent was a registered building service practitioner and registered building service contractor. He traded under the business name Kameleon Homes. On 16 August 2016 the applicant cancelled the respondent's contractor registration and refused to renew the respondent's practitioner registration. The applicant then made three allegations to the Tribunal that disciplinary matters exist with respect to the respondent in that he had:
a) engaged in misleading or deceptive conduct in connection with a contract for the carrying out of a building service at 2 Ontario Crescent, Joondalup by knowingly providing a document to the Tribunal as evidence of some of the terms of that contract when the document was in fact not part of that contract as formed and which contained a forged signature;
b) failed to comply with an order of the Tribunal under which he was required to pay an agreed settlement sum of $50,000 to the owners of 2 Ontario Crescent by 13 October 2015; and
c) engaged in negligent conduct in that he demanded and received a deposit from the owners of 10 Nookawarra Place, Kelmscott without first obtaining insurance contrary to s 25C of the Home Building Contracts Act 1991 (WA).
The Tribunal found that the disciplinary matters exist with respect to the respondent as alleged. The Tribunal ordered the respondent to pay a fine of $15,000 and costs of $3,200.

Category: B

Representation:

Counsel:

Applicant: Ms D Mahiepala
Respondent: N/A

Solicitors:

Applicant: Department of Commerce
Respondent: N/A

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

Briginshaw v Briginshaw (1938) 60 CLR 336
Builders' Registration Board and Ongarezos [2006] WASAT 53
Builders' Registration Board of Western Australia and Elliott [2009] WASAT 44
Builders' Registration Board of Western Australia and Utopia Industries Pty Ltd [2006] WASAT 295
Building Services Board and Cramphorn [2016] WASAT 57
Building Services Board of Western Australia and De Coppi [2011] WASAT 182
Legal Practitioners Complaints Committee and Gandini [2006] WASAT 163
Legal Profession Complaints Committee and Wells [2014] WASAT 112 (S)
Medical Board of Western Australia and Roberman [2005] WASAT 81 (S)
Parkdale…

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: [2016] WASAT 143
Decision Date: 21 DECEMBER 2016

CaseChat Overview and Summary

The matter before the court involved the Building Services Board of Western Australia (the Board) and a registered building service contractor, West. The Board sought to have West's registration as a contractor cancelled, claiming that his conduct constituted disciplinary matters under the Building Services Registration Act 1996 (BSR Act). The Board alleged that West had engaged in misleading and deceptive conduct and had failed to comply with an order. West, on the other hand, argued that no disciplinary matter existed as there had been no conviction under the Home Building Act 1990 (HBC Act) for the alleged offence.

The central legal issues in this case revolved around whether West's actions constituted disciplinary matters under the BSR Act and whether his failure to comply with a statutory obligation to obtain home indemnity insurance (HII) amounted to negligence. The Board contended that West's failure to obtain HII before demanding payment from homeowners constituted misleading and deceptive conduct and a breach of his duty as a registered contractor. West argued that no disciplinary matter existed because there had been no conviction under the HBC Act.

In reaching its decision, the Tribunal examined previous cases to determine the standard of care expected of a reasonably competent builder or building services contractor. It found that the failure to comply with the statutory obligation to obtain HII before demanding payment constituted a departure from the expected standard of care, amounting to negligence. The Tribunal also considered the importance of conveying a clear message to the industry regarding the seriousness of such negligent conduct. Ultimately, the Tribunal decided that West's conduct did constitute a disciplinary matter under the BSR Act, warranting the cancellation of his registration.

The court ordered the cancellation of West's registration as a building service contractor, reflecting the Tribunal's finding that his conduct constituted a disciplinary matter. The decision underscored the importance of compliance with statutory obligations and the protection afforded to homeowners by compulsory home indemnity insurance.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In Builders' Registration Board of Western Australia and Elliott [2009] WASAT 44 at [59] the Tribunal considered what constitutes professional negligence. The Tribunal found it had been established that:… It is generally accepted that the standard required is the exercise of due care, skill and diligence, which requires the bringing to the task in hand the competence and skill usually employed by members of the particular profession[.] In Building Services Board and Cramphorn [2016] WASAT 57 at [72] (Cramphorn), the Tribunal was not persuaded that a failure to comply with the HBC Act constitutes negligence. The Tribunal found in Cramphorn that the conduct in issue amounted to a breach of the HBC Act rather than negligence and that a disciplinary matter might well have been made out if the allegation had been made under s 53(1)(a)(ii) of the BSR Act. Pursuant to s 53(1)(a)(ii) of the BSR Act, a disciplinary matter exists if after registration, the registered building service provider has been convicted of an offence against, amongst other legislation, the HBC Act. Under s 53(2) of the BSR Act, a reference in subsection (1)(a) to a conviction includes a finding of guilt, or the acceptance of a guilty plea, whether or not a conviction is recorded. The applicant submits that in the present matter (as was also the case in the matter of Cramphorn), a disciplinary matter under s 53(1)(a)(ii) of the BSR Act is not open to be made as no conviction for an offence under the HBC Act has occurred. The applicant submits that the preferred approach here is that taken in the matter of Building Services Board of Western Australia and De Coppi [2011] WASAT 182 (De Coppi) at [51] - [52]. The Tribunal found that s 25C of the HBC Act established that there is a duty on a builder not to demand any payment in relation to a residential building contract prior to providing the owner with an approved form of certificate that the requisite policy of insurance has been taken out. The Tribunal further found in De Coppi (at [55] - [56]) that a registered builder was responsible for ensuring that the requisite policies were in place and that in not doing so, was in breach of that duty. The Tribunal considered that the breach of that duty is 'clearly one which constitutes a departure from the conduct to be expected from a reasonably competent builder or building services contractor, and accordingly constitutes negligence'. The applicant contends that:a)whilst in this case the building work was not commenced such that the respondent could be convicted of the alleged offence under s 25C of the HBC Act, the failure of the respondent to comply with a statutory obligation to obtain HII was a breach of the duty as identified in De Coppi and meant that the owners did not have insurance for the deposit payment that they paid prior to the obtaining of HII or the commencement of the work;b)a clear message needs to be conveyed to the industry at large that negligent conduct of this nature in relation to the compulsory home indemnity insurance obligations and the protection it affords homeowners will be regarded seriously; andc)the respondent's conduct fell short of the standard of care to be expected of a building service contractor.