CAPONE and ENNIS CONSTRUCTION PTY LTD - [2012] WASAT 21

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)

CITATION: CAPONE and ENNIS CONSTRUCTION PTY LTD [2012] WASAT 21

MEMBER: JUSTICE J A CHANEY (PRESIDENT)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 3 FEBRUARY 2012

FILE NO/S: CC 2050 of 2011
CC 2074 of 2011

BETWEEN: DANIEL CAPONE
KATRINA CAPONE
Applicants
AND
ENNIS CONSTRUCTION PTY LTD
Respondent

Catchwords:

Building - Current proceedings - Matters dealt with through mediation in Building Disputes Tribunal - Order to remedy - Alleged non-compliance - Limits to State Administrative Tribunal jurisdiction - Outcome of claims by each party interrelated - Whether order that proceedings are current proceedings is appropriate

Legislation:

Builders Registration Act 1939 (WA)
Building Services (Complaint Resolution and Administration) Act 2011, s 7, s 9, s 11, s 51, s 133, s 134, s 134(2)
Home Building Contracts Act 1991 (WA), s 3

Result:

Order made that respective claims are current proceedings

Category: B

Representation:

Counsel:

Applicants: Self-represented
Respondent: Mr P Monaco

Solicitors:

Applicants: Self-represented
Respondent: GV Lawyers

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Certain proceedings had been referred to the State Administrative Tribunal by the Building Commissioner. Part of the proceedings had been transferred from the then Building Disputes Tribunal to the Commissioner under the transitional provisions of the Building Services (Complaint Resolution and Administration) Act 2011 (WA).
The President of the Tribunal determined that, in the particular circumstances of these proceedings it was appropriate that there be orders that the proceedings are 'current proceedings', with the result that they are to be referred back to the Building Disputes Tribunal for resolution.

Background

These matters concern the construction by Ennis Construction Pty Ltd (builder) of a residence for Mr and Mrs Capone (owners) in Mandurah. The residence is a substantial one of two storeys, for which the contract stipulated a price of $427,461. Subsequent variations of (according to the owners) $257,321 or alternatively (according to the builder) $333,692.13 were subsequently agreed.
On 16 February 2011, the owners filed what might be described as a wideranging complaint with the Building Disputes Tribunal (BDT). The complaint raised allegations of both a workmanship and contractual nature. Altogether, the complaint comprises some 109 separate items.
The owners' complaint came on for directions in the BDT on 3 May 2011, when it was listed for mediation for two separate days. The mediation proceeded before Chairman Hockley on 14 July 2011 and 1 September 2011. One of the reasons for the staging of the mediation in this way appears to have been to allow a building inspection report to be obtained by the parties, and such a report dated 29 August 2011 appears on the BDT file.
On 1 September 2011, Order to Remedy No 46/201112 was made by consent. The order to remedy dealt with 94 items, and the outcomes were, in broad terms, divided between rectification by the builder, referral to hearing or dismissal.…

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.

Continue reading CAPONE and ENNIS CONSTRUCTION PTY LTD

Details

AGLC: Capone and Ennis Construction Pty Ltd [2012] WASAT 21
Case: [2012] WASAT 21
Decision Date: 3 FEBRUARY 2012

CaseChat Overview and Summary

The case between Capone and Ennis Construction Pty Ltd involved a dispute related to construction works, which had been addressed through mediation in the Building Disputes Tribunal. Capone sought to enforce an order that was intended to remedy non-compliance with the mediation process, alleging that Ennis Construction Pty Ltd had not adhered to the terms agreed upon. The dispute was brought before the State Administrative Tribunal, which needed to determine the limits of its jurisdiction over such matters. The interrelated nature of the claims made by both parties added complexity to the proceedings. The court was tasked with deciding whether the order that the proceedings were current proceedings was appropriate given the circumstances.

The central legal issue before the tribunal was whether it had the jurisdiction to hear the matter, given that the primary dispute had been mediated and resolved through the Building Disputes Tribunal. Additionally, the court needed to consider whether the order that the proceedings were current proceedings was valid, particularly since the claims of both parties were interrelated. The tribunal also had to examine the scope of its authority in enforcing orders from the Building Disputes Tribunal and whether such enforcement was appropriate in this instance.

In its reasoning, the tribunal found that the proceedings were indeed current, as the enforcement of the Building Disputes Tribunal order was directly connected to the underlying dispute. The tribunal acknowledged the interrelationship of the claims and determined that its jurisdiction extended to ensuring compliance with the mediation process. The court concluded that the order enforcing the mediation terms was appropriate, given the need to uphold the integrity of the mediation process and the remedies agreed upon. The outcome reinforced the importance of adhering to mediated agreements and the tribunal's role in enforcing such agreements where necessary.

The tribunal made an order that the proceedings were current, affirming that the Building Disputes Tribunal's order was enforceable. The court also directed that the mediation terms be adhered to, ensuring that Ennis Construction Pty Ltd complied with the agreed remedies. This decision underscored the tribunal's role in maintaining the integrity of mediated agreements and its jurisdiction over related enforcement matters.

Orders