Burns v Builders' Registration Board
[2001] WASCA 411
•6 NOVEMBER 2001
BURNS -v- BUILDERS' REGISTRATION BOARD [2001] WASCA 411
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 411 | |
| Case No: | SJA:1082/2001 | 6 NOVEMBER 2001 | |
| Coram: | McKECHNIE J | 6/11/01 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Appeals dismissed | ||
| B | |||
| PDF Version |
| Parties: | BRIAN JOHN BURNS BUILDERS' REGISTRATION BOARD |
Catchwords: | Homes transported and placed on new land Whether such work is building work Words and phrases "home building work" "Placing dwelling on land" No new principles |
Legislation: | Home Building Contracts Act 1991 (WA), s 4(3), s 10(1), s 10(2), s 25D(2) |
Case References: | Lilley v Lindsay-Smith [2001] WASCA 168 Waugh v Kippen (1986) 160 CLR 156 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
BUILDERS' REGISTRATION BOARD
Respondent
Catchwords:
Homes transported and placed on new land - Whether such work is building work - Words and phrases "home building work" - "Placing dwelling on land" - No new principles
Legislation:
Home Building Contracts Act 1991 (WA), s 4(3), s 10(1), s 10(2), s 25D(2)
Result:
Appeals dismissed
(Page 2)
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr L A Tsaknis
Solicitors:
Appellant : In person
Respondent : E M Buttfield, Builders' Registration Board
Case(s) referred to in judgment(s):
Lilley v Lindsay-Smith [2001] WASCA 168
Case(s) also cited:
Waugh v Kippen (1986) 160 CLR 156
(Page 3)
1 McKECHNIE J: This is three appeals against three convictions under the Home Building Contracts Act on the single ground that the Magistrate erred in law and fact in finding that work carried out by the appellant constituted "home building work" within the meaning of the Home Building Contracts Act 1991.
2 The appellant was charged with three offences under that Act. They are:
(1) that on 11 September 1999, being a builder, he received payment in relation to residential building work which he had contracted to perform at 9 The Pass Road, Narrikup, without having first provided the owner of the property with an appropriate certificate evidencing the taking out of a policy of insurance which complied with s 25D of the Home Building Contracts Act;
(2) that on the same date, and being a builder, entered into a home building work contract in relation to work at 9 The Pass, Narrikup, such contract providing that he was entitled to receive from the owner who was also a party to the home building work contract, a deposit in excess of 6.5 per cent of the total amount payable to him; and
(3) that on the same date, and being a builder who was a party to a home building contract in relation to work at 9 The Pass Road, Narrikup, failed to ensure that the requirements of s 4(3) of the Home Building Contracts Act were complied with in respect of the home building contract work.
3 On 9 May 2001 the appellant stood trial and was convicted and fined. His argument before the Magistrate, in essence, was the same argument as he puts on appeal. In order to understand that argument it is necessary to know something about the background. Mr Burns' business is summarised in his letterhead which is as follows:
"Specialists and consultants in building transport. Buildings bought and sold on commission. Pre-used houses sold, and/or relocated; relevelling of sunken stumps, footings and chimneys. Innovative and creative expansion of houses."
4 It would appear that on 13 April 1999 Mr Burns had arranged and bought a house from Homeswest which was then situate at 9 South Coast Highway, Albany. On 11 September 1999 he entered into a contract with
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- a Ms J J Anthoine-Frost. I will refer to that contract shortly. Ms Anthoine-Frost gave evidence that she entered into the contract and paid a deposit of $5000 on that day. Her evidence also was, when she was asked:
" ... But specifically did you ever receive a notice setting out your rights under the Home Building Contracts Act?---No.
...
And did he ever provide you with documents in relation to the issue of home indemnity insurance?---No."
Those being the three matters which are relevant to the three complaints. She gave evidence that the contract in due course proceeded.
5 Mr Burns gave evidence that because Ms Anthoine-Frost had applied for a builder's permit she was in fact the builder. His evidence was that the building contract was actually $6000 or less. His evidence was:
" ... I'm stating that my building - - the housing building contract is - - only applied to the actual stumping of that house - - of that house onto the property, and that content of work was $6000 or less. And it was her - - the client's responsibility to go through the legal aspects of getting a permit. Part of that was to get a structural engineer's certificate to say that the building was all right to transport. ... "
6 His evidence about the $5000 was that it exceeded the cost of the house from Homeswest and was required to ensure payment. In his words, "I haven't really received a deposit off her at all."
7 The reasons of the Magistrate proceeded to set out the various forms of provisions of the Act and made findings of fact, although it does not seem that there was any factual matter really in issue:
" ... In any event for the purposes of this exercise I find that this is a home building work contract because the work provided for in the contract is home building work ... and Mr Burns is a builder under the definition within the Act."
8 The scheme and purpose of the Act is in issue. I adopt and rely upon the scheme and the purpose of the Home Building Contracts Act as set out by Hasluck J in Lilley v Lindsay-Smith [2001] WASCA 168 at [27] to [33].
(Page 5)
9 It is now necessary to turn firstly to the Act and to the contract. The Act is clearly a consumer Act. The long title provides that it is an Act for the regulation of contracts between consumers and builders for the performance of certain home building work, to make provision for home indemnity insurance, to amend the Small Claims Tribunal Act 1974, and for connected purposes.
10 There are a number of definitions which, in this case, are crucial to the resolution of this appeal. Under Interpretation, "builder" means a person who carries on, or 2 or more persons who together carry on, a business which consists of or includes the performing of home building work for others. That, in turn, focuses attention on the definition of "home building work". That is defined, relevantly, as follows:
" 'Home building work' means the whole or part of the work of –
(a) constructing or re-constructing a dwelling including an existing dwelling and/or strata title dwelling;
(b) placing a dwelling on land;
(c) altering, improving or repairing a dwelling, including a strata titled dwelling; or
(d) constructing or carrying out any associated work in connection with –
(i) any work referred to in paragraphs (a) or (b); or
(ii) an existing dwelling, including a strata-titled dwelling;"
12 Section 25D(2), which is in Pt 3A entitled "Home Indemnity Insurance" provides:
(Page 6)
- "(2) Subject to subsection (3), where the policy of insurance relates to work described in paragraph (b) of the definition of 'home building work' in section 3, the cost of the residential building work for the purposes of subsection 1(e) is only the cost of –
(a) placing the dwelling on the land including siting, stumping and any other work in connection with that placement; and
(b) any building work to the dwelling after placement."
14 I now turn to the contract in issue in this case. The contract relevantly provides as follows:
"BURNS agrees to supply, transport, re-stump and join together, two halves of weatherboard house, presently situated at 9 Sth. Coast Highway, Albany; onto rural holding, Plantagenet Location 6587, Chorkerup, (Lot 9) in the Plantagenet Shire."
15 The agreement then goes on to provide for the re-stumping and joining and matters for which Ms Anthoine-Frost would be responsible. The contract continues:
"Initial Deposit ... ... ... ... ... $ 5,000.00
Upon stumping each section ... ... $ 8,500.00 1st section
... ... $ 8,500.00 2nd section
After joining and finishing off above $ 2,500.00
Total $24,500.00"
16 The terms of payment are significant providing, in effect, for progress payments after each stumping and after joining and finishing off. The contract does not otherwise apportion costs to activities. In
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- particular, it does not apportion an amount less than $6000 in relation to building costs. On the contrary, just reading the contract, the contract seems to provide a considerable sum for stumping and joining and finishing off.
17 Mr Burns argues that the deposit is not a deposit as such but is effectively payment for the house and therefore comes within the provisions of s 10(2). That section is headed "Deposits and advance payments" and provides, relevantly by subs (1), that:
"A builder must not enter into a contract which provides that the builder is entitled to demand or receive from the owner any payment –
(a) before the commencement of the home building work to which the contract relates unless the payment is –
(i) a deposit of not more than 6.5% of the total amount payable to the builder under the contract for the home building work; or ... "
- There is a proviso to that in subs (2):
"Where a contract provides for the purchase by the owner of materials for a dwelling in a prefabricated form or of a dwelling that is transportable or for a similar arrangement, a payment for the materials or dwelling and associated work is a genuine progress payment for the purposes of subsection (1)(b)(i) –
(a) if property in the materials or dwelling passes absolutely to the owner on the payment being made; and
(b) notwithstanding that the materials or dwelling are not placed on or affixed to the land of the owner."
19 The evidence, as I have previously set out, was that notice was not given and a certificate of insurance was not provided. The deposit which
(Page 8)
- was actually paid is, of course, in excess of the 6.5 per cent provided for in s 10(1).
20 The case turns in the end on whether the appellant is a "builder" within the meaning of the Home Building Contracts Act as that term is defined and further defined by the definition of "home building improvements".
21 Although the appellant, who was unrepresented before the Magistrate and has appeared before me today in an unrepresented capacity, has argued strongly that he is not a builder and never has been, and although I am sure he honestly and passionately holds that belief, nevertheless I am quite satisfied that he does fall within the definition of "builder" within the meaning of the Act. As a result, I do not consider that the Magistrate has made any error of law and fact and the result is that each appeal must be dismissed.
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