CARTER and J-CORP PTY LTD - [2019] WASAT 77

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   CARTER and J-CORP PTY LTD [2019] WASAT 77
MEMBER:   MS P LE MIERE, MEMBER
MR W GREGORY, SESSIONAL MEMBER

HEARD:   6 & 7 DECEMBER 2018 AND 26 & 26 MARCH 2019
DELIVERED          :   24 SEPTEMBER 2019
FILE NO/S:   CC 140 of 2018
BETWEEN:   JENNIFER LOUISE CARTER
Applicant
AND
J-CORP PTY LTD
Respondent

Catchwords:

Building Services (Complaint Resolution and Administration) Act 2011 (WA) - Ponding of water in void under modular home - Adequacy of foundations - Adequacy of bracing - Terrain category determination - Appropriate remedial work - Loss of rental income - Order for remedial work rather than monetary compensation

Legislation:

Building Code of Australia 1996, Pt 3.1.2.(c), Pt 3.4.1.2(c)
Building Code of Australia 2011, Pt 3.1.2.(c), Pt 3.4.1.2(c)
Building Services (Complaint Resolution and Admistration) Act 2011 (WA), s 5, s 11(1)(d), s 36, s 36(1), s 36(1)(a), s 36(1)(b), s 36(1)(c), s 38, s 38(1)(a), s 41
National Construction Code 2011

Result:

Application partially successful

Category: B

Representation:

Counsel:

Applicant	:	Mr JC Yeldon
Respondent	:	Mr A Buchan

Solicitors:

Applicant	:	Pacer Legal
Respondent	:	Hotchkin Hanly

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

Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613
Diploma Constructions (WA) Pty Ltd v South-Central WA Pty Ltd [2015] WASC 289
Gemmill Homes Pty Ltd v Sanders [2018] WASC 179
The Owners of Strata Plan No 74602 v Brookfield Australian Investment Ltd [2015] NSWSC 1916
Total Investments Pty Ltd and Rapley Wilkinson Pty Ltd [2015] WASAT 29

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The applicant, Ms Jennifer Carter lodged a complaint with the Building Commissioner under s 5 of the Building Services (Complaint Resolution and Administration)Act 2011 (WA) (BSCRA Act) in respect of a regulated building service not carried out by the respondent, J Corp Pty Ltd in a proper and proficient manner or being faulty or unsatisfactory.
The Building Commission referred the complaint to the Tribunal under s 11(1)(d) of the BSCRA Act.
The matter was heard on 6 and 7 December 2018 and 25 and 26 March 2019.
At a directions hearing on 8 February 2019 the parties agreed relevantly:
•The respondent could file any further expert evidence including any associated drawings in relation to the issues of:
(a)sub-slab ventilation;
(b)sub-slab drainage;
(c)sliding and impact resistance of the premises; and
(d)costings to perform remedial work that the respondent considers necessary.
•The applicant could file any further expert report in relation to the proposed remedy the applicant seeks and costings for that remedy as well as any responsive evidence to the expert evidence filed by the respondent.

Relevant background

The complaint concerns a regulated building service carried out by the respondent in relation to a modular home at Baynton, in Karratha. The modular home is positioned on two concrete precast raft slabs positioned together. The slab(s) and the modular home (House) was constructed and installed by the respondent in about 2011. The…

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 CARTER and J-CORP PTY LTD

Details

AGLC: Carter and J-CORP Pty Ltd [2019] WASAT 77
Case: [2019] WASAT 77
Decision Date: 24 SEPTEMBER 2019

CaseChat Overview and Summary

The case involved a dispute between the applicant, Carter, and the respondent, J-Corp Pty Ltd, regarding the construction of a modular home. Carter alleged that the home experienced water ponding in a void beneath it, which was attributed to inadequate foundations and bracing. The matter was heard in the Supreme Court of Western Australia. Carter sought an order for the respondent to undertake remedial work to rectify the issues with the foundations and bracing, as well as compensation for the loss of rental income. J-Corp Pty Ltd argued that the terrain category determination was not accurate and that no remedial work was required.

The court had to determine whether the construction of the modular home complied with the Building Services (Complaint Resolution and Administration) Act 2011 (WA). Specifically, the court had to consider whether the foundations and bracing were adequate, whether the terrain category determination was appropriate, and what remedial work, if any, was required. Additionally, the court needed to decide whether Carter was entitled to compensation for the loss of rental income.

The court found that the foundations and bracing were inadequate, and that the terrain category determination was incorrect. The court ordered J-Corp Pty Ltd to undertake appropriate remedial work to address the issues with the foundations and bracing. The court also found that Carter was not entitled to compensation for the loss of rental income, as the matter was better addressed through remedial work rather than monetary compensation. The application was partially successful, as the court did not order monetary compensation for the loss of rental income but did order remedial work to be undertaken by J-Corp Pty Ltd.

Orders

Orders of the court

Application partially successful

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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