Cardinal Constructions Pty Ltd v Reed - [1999] WADC 99

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: CARDINAL CONSTRUCTIONS PTY LTD -v- REED & ANOR [1999] WADC 99

CORAM: LA JACKSON DCJ

HEARD: 14 OCTOBER 1999

DELIVERED : 28 OCTOBER 1999

FILE NO/S: CIVO 173 of 1999

MATTER :IN THE MATTER OF AN APPEAL FROM THE DECISION OF THE BUILDING DISPUTES COMMITTEE GIVEN 15 JUNE 1999

BETWEEN: CARDINAL CONSTRUCTIONS PTY LTD
Appellant
AND
DAVID REED
JANICE PITTMAN
Respondents

Catchwords:

Miscellaneous matters - Appeal from Building Disputes Committee - Practice and procedure - Leave to appeal - Unconscionable conduct

Legislation:

Builders Registration Act 1939

Home Building Contracts Act 1991

Result:

Leave to appeal granted. Appeal allowed in part. Judgment for the appellant for $5,934.33 in lieu of judgment for the respondent for $265.67.

Representation:

Counsel:

Appellant: Ms C Bahemia
Respondents : Mr C Caine

Solicitors:

Appellant: Hammond Worthington
Respondents : Corrin Caine

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

Building Corporation v Earnshaw, unreported; DCt of WA; Library No D990039; 22 February 1999
Watson v Wallington (1999) WADC 84

Case(s) also cited:

J-Corp Pty Ltd v Casey (1993) 10 SR (WA) 43
Kioa v West (1985) 159 CLR 550
Wing Luck Foods v Lay Choo Lim [1989] WAR 358

LA JACKSON DCJ: This is an application for leave to appeal from a decision of the Building Disputes Committee (the "Committee") given on 10 June 1999. At my direction both the question of leave to appeal and the appeal itself were argued at the same time. On reflection I consider that procedure to be inappropriate. The application for leave to appeal should generally be considered separately.
The Committee is a statutory body created by the Builders Registration Act 1939. It consists of a chairperson who is a legal practitioner (s27) and one person as a representative of the interest of consumers and one person as a representative of the interest of builders (ss28, 35). Section 36(1) provides:
"At all its sittings the Disputes Committee shall act according to equity, good conscience and the substantial merits of the case and without regard to technicalities and legal forms, and shall not be bound by the rules of evidence but may inform itself upon any matter in such manner as it thinks fit."
The Committee is, as was described by Viol DCJ in Building Corporation v Earnshaw, unreported; DCt of WA; Library No D990039; 22 February 1999 an informal board designed to give relatively speedy and inexpensive relief to the parties involved in building disputes. In Watson v Wallington (1999) WADC 84 I considered the question of leave to appeal and canvassed various authorities on that subject. It is unnecessary for me to repeat that task. I merely re‑state what I there said at para 25:
"Although it is a matter for the exercise of judicial discretion, in general, the tests to be applied to the application for leave to appeal from a decision of the Committee should be as follows.
1.The applicant must show:
(a)either the decision…

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 Cardinal Constructions Pty Ltd v Reed

Details

AGLC: Cardinal Constructions Pty Ltd v Reed [1999] WADC 99
Case: [1999] WADC 99
Decision Date: 28 OCTOBER 1999

CaseChat Overview and Summary

Cardinal Constructions Pty Ltd, the builder, appealed against the decision of the Building Disputes Committee in a building dispute case. The dispute concerned the quality of construction work, particularly painting, repairs to a vanity top, brick paving, and the claim for late completion. The Committee ordered Cardinal Constructions to pay for the rectification of faulty painting, repair of the ensuite bathroom, repair of the vanity top, repair of the brick paving, and payment for late completion. The builder sought to appeal the decision on several grounds, including errors in law and fact, lack of jurisdiction, and the reasonableness of liquidated damages.

The court had to determine whether the Building Disputes Committee made errors in its decision and whether the builder was entitled to appeal. Specifically, the court needed to consider whether the Committee had jurisdiction to order payments for the exterior painting, whether it failed to provide natural justice, whether it allowed the builder to remedy the defects, and whether it erred in finding that the builder engaged in unconscionable conduct and in determining the reasonableness of liquidated damages. Additionally, the court had to decide whether the Committee correctly interpreted the building contract regarding obligations and responsibilities.

The court noted that the Building Disputes Committee was designed to provide speedy and inexpensive relief in building disputes and that appeals from its decisions were generally restricted. However, leave to appeal could be granted if the decision was plainly wrong or attended with sufficient doubt, or if substantial injustice would result from leaving the decision unreversed. In this case, the court considered whether the Committee's decision met these criteria and whether any important points of law arose for consideration. The court found that the Committee's decision involved errors in law and fact, and that it was in the public interest to grant leave to appeal to clarify these issues for future cases.

The court granted leave to appeal and addressed the merits of the appeal, setting aside the Committee's orders and dismissing the claims for non-flexible grout in the ensuite bathroom and late completion. The court also ordered that the builder remedy the exterior finishes, faulty painting, vanity top, and brick paving, and suspended the operation of a previous order. The court further directed that the builder's costs of the appeal be paid by the respondents.

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

The Committee is, as was described by Viol DCJ in Building Corporation v Earnshaw, unreported; DCt of WA; Library No D990039; 22 February 1999 an informal board designed to give relatively speedy and inexpensive relief to the parties involved in building disputes. In Watson v Wallington (1999) WADC 84 I considered the question of leave to appeal and canvassed various authorities on that subject. It is unnecessary for me to repeat that task. I merely re‑state what I there said at para 25: "Although it is a matter for the exercise of judicial discretion, in general, the tests to be applied to the application for leave to appeal from a decision of the Committee should be as follows.1.The applicant must show: (a)either the decision was wrong or the decision is at least attended with sufficient doubt to justify the granting of leave, and, (b)substantial injustice would be done by leaving the decision unreversed. 2.The consideration of the criterion in 1(a) is in the context(a)that it is designed to restrict appeals, (b)that there is a prima facie presumption in favour of the correctness of the decision of the Committee, and (c)that its proceedings will, by its nature, be relatively informal." Perhaps added to that list might be the cases in which an important point of wide application arises for consideration. In such cases, even though the decision of the Committee may plainly be correct, it may well be of assistance to future committees and to those involved in the building industry to grant leave to appeal so that a decision which may be of assistance can be given. Such an expansion would, I am sure, be in the public interest. In this case, as I have said, perhaps, on reflection, wrongly, I directed the appeal and the application for leave be heard together but nonetheless my task will be to consider whether leave to appeal should be granted and, if so, to at the same time deal with the merits of the appeal. The notice of appeal is as follows: "TAKE NOTICE that the District Court will be moved before a Judge in Chambers on the day of 1999 at o'clock in the noon or soon thereafter as Counsel can be heard, be Counsel for the abovenamed Appellant for orders that: 1.That part of the judgment of the Building Disputes Committee in Complaint No 0.1196 given on 10 June 1999 whereby the Committee ordered that the builder: (a)do pay the sum of $5,055.00 for rectification of faulty painting; (b)do pay $150.00 for repair to ensuite bathroom; (c)do pay $380.00 for repair to the vanity top; (d)do pay $1,650.00 for repair to the brick paving; and(e)do pay $6,200.00 for late completion. Be set aside and in lieu therefore, the following orders be made: (a)The Appellant do remedy the exterior finishes, the faulty painting, the vanity top, and the brick paving. (b)The claim for non‑flexible grout in the ensuite bathroom be dismissed. (c)The claim for late completion be dismissed. (d)operation of order no 62/99 be suspended pursuant to paragraph 41(3)(a) of the Builders Registration Act, 1939. (e)The Second Respondents do pay the Appellant's costs of the appeal. AND FURTHER TAKE NOTICE THAT the grounds of this appeal are as follows: 1.(As amended) The Disputes Committee erred in law in ordering the Appellant to make payment for exterior painting on the ground that: 1.1there was no valid complaint regarding the exterior painting before the Disputes Committee and therefore the Disputes Committee did not have the jurisdiction to make such Order; or alternatively1.2if there was a verbal complaint, the Disciplinary Committee failed to observe its own procedures on hearing the complaint and thereby failed to afford the Applicant natural justice. 2.erred in law in failing to allow the Appellant the opportunity to remedy the defects to the painting, vanity top and paving as contemplated by paragraph 17(4)(c)(ii) of the Home Building Contracts Act 1991. 3.erred in fact and in law in failing to take account of its order to remedy no 143 of 1999, in respect of the ensuite bathroom, and the builders compliance with the order. 4. erred in fact and in law in finding the Appellant engaged in unconscionable conduct in the formation of the contract on the grounds that there was no evidence before the Committee upon which it could reasonably find that the Appellant engaged in unconscionable conduct in the formation of the contract.5.erred in fact and in law in finding liquidated damages of $200.00 per week is a reasonable term to be implied into the building contract between the Appellant and the Second Respondents. 6.erred in law in finding that clause 18(e) of the building contract did not operate so as to relieve the Appellant from all his obligations and responsibilities under the contract (except those associated with the defects liability period)." Ground 1