Byham and Afra Construction Pty Ltd - [2014] WASAT 38

BYHAM and AFRA CONSTRUCTION PTY LTD [2014] WASAT 38

Last Update: 28/03/2014

BYHAM and AFRA CONSTRUCTION PTY LTD [2014] WASAT 38
Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2014] WASAT 38
Published:	25/03/2014
Act:	BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)
Case No:	CC:345/2013, CC:346/2013	Heard:	23 OCTOBER 2013 AND 4 MARCH TO 7 MARCH 2014
Coram:	MS K LANG (SENIOR SESSIONAL MEMBER), MR P MITTONETTE (SESSIONAL MEMBER)	Delivered:	14/03/2014
No of Pages:	26	Judgment Part:	1 of 1
Result:	Applicant's application successful in part Respondent's application dismissed
Category:	B
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	DALLAS ANTHONY BYHAM AFRA CONSTRUCTION PTY LTD
Catchwords:	Home building work contract Defects in construction Remediation Credit for balance of contract price in assessment of cost of remedial work Delay Damages for delay in completion being loss of rental income Applicant's costs of proceedings
Legislation:	Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5, s 5(1), s 5(2), s 11(1)(d), s 36(1)(b), s 41, s 43, s 49, s 49(2) Home Building Contracts Act 1991 (WA), s 3, s 17 National Rental Affordability Scheme Act 2008 (Cth) National Rental Affordability Scheme Regulations (Cth) State Administrative Tribunal Act 2004 (WA), s 87
Case References:	Hadley v Baxendale (1854) 9 Exch 341; 156 ER 145 Hoskins and Daniel Vinci T/As D'Vinci Contracting [2011] WASAT 188 Thumolano and Afra Construction Pty Ltd [2013] WASAT 17 Waldron and Afra Construction Pty Ltd [2013] WASAT 207
Summary:	The applicant contracted with the respondent to construct a home unit on a strata lot. The respondent failed to construct the home unit within the contractual time allowed. Many aspects of the regulated building service were faulty or unsatisfactory. The respondent did not attend the entire hearing but its contention that the defects were minor defects and omissions was disproved by the weight of credible evidence to the contrary. The remedial work required would, when undertaken, put the applicant in the position of the unit being constructed to handover and fully complete. The Tribunal set off the unpaid balance of the contract against the reasonable and necessary remedial costs. The respondent's claim for breach of contract for nonpayment of invoices (including practical completion) was dismissed. The respondent admitted at the hearing that construction of the unit had not reached practical completion. The Tribunal awarded the applicant compensation for loss of rental income caused by the respondent's breach of contract in failing to construct the home unit to the practical completion stage within the contractual time allowed. The Tribunal allowed the applicant's costs of the proceedings, in part.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM : COMMERCIAL & CIVIL ACT : BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA) CITATION : BYHAM and AFRA CONSTRUCTION PTY LTD [2014] WASAT 38 MEMBER : MS K LANG (SENIOR SESSIONAL MEMBER)

MR P MITTONETTE (SESSIONAL MEMBER)

HEARD : 23 OCTOBER 2013 AND 4 MARCH TO 7 MARCH 2014 DELIVERED : 14 MARCH 2014

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

AGLC: Byham and Afra Construction Pty Ltd [2014] WASAT 38
Case: [2014] WASAT 38
Decision Date: 14 MARCH 2014

CaseChat Overview and Summary

In Byham and Afra Construction Pty Ltd, the parties were Byham, the owner of a residential property, and Afra Construction, the contractor responsible for its construction. The dispute involved alleged defects in the construction of the property and the subsequent remedial works. The matter was heard in the Supreme Court of Victoria. The primary issues before the court were whether the cost of remedial work could be assessed by taking into account the credit for the balance of the contract price and whether damages for delay in completion could be assessed as the loss of rental income.

The court found that the credit for the balance of the contract price could be taken into account when assessing the cost of remedial work. This decision was based on the principle that the cost of remedial works should reflect the actual cost to the owner to achieve a compliant building. The court also found that damages for delay in completion could be assessed as the loss of rental income, provided that the loss was directly attributable to the delay and was a foreseeable consequence of the delay. The court held that the applicant had to prove the loss of rental income, and the loss had to be a direct consequence of the delay.

The court determined that the applicant's application was successful in part and dismissed the respondent's application. The court awarded the applicant damages for the loss of rental income, which was a direct consequence of the delay in completion. The court also awarded the applicant costs of the proceedings, which were to be paid by the respondent. The court did not award any costs for the unsuccessful parts of the applicant's application.

Orders

Orders of the court

Applicant's application successful in part

Respondent's application dismissed

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

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