CHALAKUZHY and OLSEN
[2017] WASAT 104
•30 MAY 2017
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)
CITATION: CHALAKUZHY and OLSEN [2017] WASAT 104
MEMBER: MS C WALLACE (SENIOR MEMBER)
DELIVERED : 30 MAY 2017
PUBLISHED : 28 JULY 2017
FILE NO/S: CC 735 of 2017
BETWEEN: REJI PAUL CHALAKUZHY
Applicant
AND
RODNEY PAUL OLSEN
Respondent
Catchwords:
Transfer of matter from Building Commission to Tribunal Need for consent to be given - Whether Building Commissioner has power to vary a final order - Whether the power to make an ancillary or incidental order enables varying of a final order - The meaning of 'ancillary' and 'incidental' - Whether requiring a party to reach practical completion is an order which requires specified work to be performed
Legislation:
Building Services (Complaint Resolution and Administration Bill) 2010 (WA)
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5(2), s 5(3), s 10, s 11, s 11(1)(d), s 33, s 36, s 37(4), s 41, s 42, s 42(2), s 42(4), s 51, s 55
Home Building Contracts Act 1991 (WA), s 17
Result:
Consent to the transfer of the matter refused
Summary of Tribunal's decision:
The Building Commissioner sought, pursuant to s 55 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) to transfer a matter to the Tribunal. The matter the subject of the transfer was an application pursuant to s 51 of the BSCRA Act seeking to revoke home building work contract remedy order (as varied) No 1 of 2017 (HBWC remedy order 1 of 2017) made by the Building Commissioner, which had not been complied with.
At a directions hearing on 30 May 2017 the Tribunal made an order refusing to grant consent to the transfer of the matter and gave brief oral reasons. The primary reason for the refusal was on the basis that the final order the subject of the s 51 application had been sought to be varied by the Building Commissioner. The Building Commissioner sought to do so pursuant to s 42(4) of the BSCRA Act which allows the Building Commissioner to make 'ancillary' and 'incidental' orders. The Tribunal found that that provision did not empower the Building Commissioner to vary a final order.
In addition the Tribunal found that the content of HBWC remedy order 1 of 2017 was not capable of being the subject of a s 51 application as it could not be replaced by a monetary order. The order required the respondent builder to reach practical completion in the construction of the applicant's dwelling. To convert such an order to a monetary order required the contract between the parties to be terminated, yet the contract remained on foot.
The Tribunal also made observations that the order, by simply requiring practical completion to be achieved, was not an order which complied with s 41(2)(a)(ii), that is an order 'requiring any specified work to be done'. This is because the order did not clearly specify exactly what works were required to be performed in order to achieve practical completion.
For all of those reasons the application seeking the transfer of the matter from the Building Commission to the Tribunal was refused.
Category: B
Representation:
Counsel:
Applicant: In Person
Respondent: In Person
Solicitors:
Applicant: N/A
Respondent: N/A
Case(s) referred to in decision(s):
Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503
Director General of Department of Transport v McKenzie [2016] WASCA 147
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The proceeding involved a request by the Building Commissioner, pursuant to s 55 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) that the Tribunal consent to the transfer of a matter that the Building Commissioner had decided to deal with pursuant to s 51 of the BSCRA Act. Section 51 enables the Building Commissioner, or the Tribunal, to revoke a home building work contract remedy order (HBWC remedy order) which has not been complied with and to replace it with a new order.
The order the subject of the transfer application is home building work contract remedy order (as varied) No 1 of 2017 (HBWC remedy order 1 of 2017) dated 6 January 2017 in respect of a building service at 18 Leaside Way, Spearwood. The order required Mr Rodney Olsen, the respondent, to bring the building service at the property to practical completion within 63 days of the date of the order. Mr Reji Chalakuzhy is the owner of the relevant property and the applicant in the proceeding. The Building Commissioner sought to vary HBWC remedy order 1 of 2017 on 13 March 2017 by amending the date for compliance within which the respondent was to reach practical completion to 31 March 2017.
The proceeding was listed for an initial directions hearing before the Tribunal on 30 May 2017. At that time the Tribunal made an order refusing to consent to the transfer of the matter from the Building Commission. Oral reasons for the decision were provided to the parties who were in attendance at the directions hearing. The primary reason the Tribunal gave the parties for the refusal to give consent, was because the Tribunal was of the view that the Building Commissioner did not have jurisdiction to vary HBWC remedy order 1 of 2017 because it was a final order. The Tribunal also raised concerns with the parties as to whether HBWC remedy order 1 of 2017 was capable of being the subject of an application pursuant to s 51 of the BSCRA Act. Therefore, HBWC remedy order 1 of 2017, as varied, was not a matter which could be transferred to the Tribunal pursuant to s 55 of the BSCRA Act.
The Tribunal has decided to convert its oral decision made on 30 May 2017 into published reasons.
History of the complaint at the Building Commission
The applicant lodged a complaint with the Building Commission on 24 August 2016 against the respondent pursuant to s 5(3) of the BSCRA Act seeking that the Building Commissioner make a HBWC remedy order pursuant to s 42 of the BSCRA Act. In the complaint form the applicant set out the following:
Contractual completion date has not been met. More than five months delay already. Just achieved lockup stage. No work at site for the last six weeks. No response from builder to phone calls or emails.
Attached to the complaint lodged with the Building Commission was a copy of the home building works contract entered into between the parties and executed by them on 24 March 2015. The contract provided for the construction of a two bedroom residential home at 18 Leaside Way, Spearwood. The time for completion of the home set out in the contract was a period of 120 working days from the date of commencement.
It appears that the parties each provided documentation to the Building Commission, who having assessed the complaint, made the following order on 6 January 2017:
HOME BUILDING WORK CONTRACT REMEDY ORDER
NO. 1 OF 2017BUILDING SERVICE AT 18 LEASIDE WAY, SPEARWOOD
I, Peter Verrall, an authorised delegate, make the following order under the provisions of section 41(2) of the Building Services (Complaint Resolution and Administration) Act 2011:
1.The respondent is to bring the building service at 18 Leaside Way, Spearwood to practical completion within sixty three days of the date of this order.
2.The question of compensation and costs forming part of this complaint is to be considered by the Building Commissioner upon practical completion being achieved.
In February 2017, the respondent became seriously ill and was admitted to hospital. Due to his illness he was unfit to work and provided medical information to both the Building Commission and to the applicant in this regard. The respondent requested, in writing, that the applicant therefore afford him an extension of time within which to comply with HBWC remedy order 1 of 2017. The applicant agreed to extend time for compliance to 31 March 2017. The Building Commissioner then made the following order on 13 March 2017:
HOME BUILDING WORK CONTRACT REMEDY ORDER (AS VARIED)
NO. 1 OF 2017BUILDING SERVICE AT 18 LEASIDE WAY, SPEARWOOD
I, Peter Verrall, an authorised delegate, make the following variation to Building Remedy Order No. 1 of 2017 under the provisions of section 37(4) of the Building Services (Complaint Resolution and Administration) Act 2011:
The date for compliance with item 1. of Home Building Work Contract Remedy Order No. 1 of 2017 be varied to 31 March 2017.
In early April 2017 the respondent again approached the applicant seeking an extension of time within which to reach practical completion. That request was refused by the applicant. The parties were therefore informed by the Building Commission on 21 April 2017 that the matter would be referred to the Tribunal for determination.
A memorandum was then prepared by the Building Commission's authorising investigator on 26 April 2017 which noted and recommended the following:
Practical completion of the dwelling has allegedly not been achieved the Commission is unable to consider issuing a further Home Building Work Contract Remedy Order utilising section 51 of the CRAA Act 2011, until the matter of practical handover of the dwelling and possible consideration of the requirement for termination of the contract between the parties has been determined.
Recommendation
The Commission does not have jurisdiction to consider the matter of terminating the contract between the parties a referral to the State Administrative Tribunal is required for determination of the alleged noncompliance of item 1 of HBWC Order No. 1 of 2017.
An application pursuant to s 55 of the BSCRA Act was then prepared on behalf of the Building Commissioner dated 27 April 2017 which provided in the section of the application requiring the applicant to identify the decision they want the Tribunal to make:
A decision under section 51 in relation to alleged noncompliance with item 1 of Home Building Work Contract Remedy Order No.1 of 2017.
The ground on which the application is identified as having been made is set out below:
On 6 January 2017, as resolution to complaint C137442, HBWC Order No. 1 of 2017 was issued requiring the respondent to perform certain remedial works in connection with the building service at 18 Leaside Way, Spearwood. Item 1 of the HBWC order was required to be complied with by 31 March 2017. Extract 1. The respondent is to bring the building service at 18 Leaside Way, Spearwood to practical completion within sixty three days of the date of this order. 2. The question of compensation and costs forming part of this complaint is to be considered by the Building Commissioner upon practical completion being achieved. On the 4 April 2017 the complainant alleged that the respondent has failed to comply with the HBWC order, in particular that practical completion has not been achieved per item 1 as outlined in the HBWC order. Practical completion of the dwelling has allegedly not been achieved the Commission is unable to consider issuing a further Home Building Work Contract Remedy Order utilising section 51 of the CRAA Act 2011, until the matter of practical handover of the dwelling and possible consideration of the requirement for termination of the contract between the parties has been determined. The Commission does not have jurisdiction to consider the matter of terminating the contract between the parties a referral to the State Administrative Tribunal is required for determination of the alleged noncompliance of item 1 of HBWC Order No. 1 of 2017.
In addition, an investigation report was prepared pursuant to s 10 of the BSCRA Act following which a Notice of Decision was made by the Building Commission's authorised delegate on 28 April 2017 pursuant to s 11 of the BSCRA Act as follows:
Pursuant to section 11 of the Act, I have decided that item 2, as outlined in HBWC order No. 1 of 2017, be referred to the State Administrative Tribunal for the following reason:
1.The Building Commission has made application to the State Administrative Tribunal (the Tribunal) seeking its consent to transfer the matter of alleged noncompliance with item 1 of HBWC Order No. 1 of 2017 to the Tribunal for determination.
2.Item 2 of the complaint directly relates to item 1 and as such it is appropriate for this matter to be dealt with by the Tribunal in conjunction with a determination being made in relation to item 1.
Relevant legal framework
The applicant lodged a complaint with the Building Commission pursuant to s 5(2) of the BSCRA Act which provides as follows:
5.Making complaint about building service or home building work contract matter
…
(2)An owner or builder under a home building work contract may make a complaint to the Building Commissioner about a matter referred to in the Home Building Contracts Act 1991 section 17 or 20 or Schedule 1 clause 5.
Section 17 of the Home Building Contracts Act 1991 (WA) (HBC Act) provides as follows:
17.Breach of contract or Part 2, or entitlement to compensation, procedure in case of
If an owner or builder under a contract claims that -
(a)there has been a breach of -
(i)the contract, not being a breach in respect of which a building remedy order may be made under the Building Services (Complaint Resolution and Administration) Act 2011; or
(ii)a provision in Part 2;
or
(b)the owner or builder is entitled to compensation under Schedule 1,
then, subject to the Building Services (Complaint Resolution and Administration) Act 2011, the owner or builder may make a complaint under section 5(2) of that Act.
The applicant, in alleging that the respondent had not reached practical completion in respect of construction of the dwelling as required by the home building work contract, is alleging a breach of the contract to which s 17 of the HBC Act applies. If the Building Commissioner finds that the allegation of breach of contract is made out, then he has jurisdiction to make a HBWC remedy order pursuant to s 41 and s 42 of the BSCRA Act. Relevant excerpts of those provisions are set out below:
41.HBWC remedy orders
(1)In this section -
specified means specified in the HBWC order.
(2)A HBWC remedy order in respect of a complaint by an owner or builder under a home building work contract referred to in the Home Building Contracts Act 1991 section 17 (other than a complaint about a breach of section 15 of that Act) consists of one or more of the following -
(a)an order -
(i)restraining any specified action in breach of the contract or of a provision in the Home Building Contracts Act 1991 Part 2;
(ii)requiring any specified work to be done in the performance of the contract;
(iii)requiring any specified work to be done to ensure compliance with a provision of the Home Building Contracts Act 1991 Part 2;
(iv)requiring any specified work to be done to remedy a breach of the contract or of a provision of the Home Building Contracts Act 1991 Part 2;
(b)an order that a person pay a specified amount payable under the contract;
(c)an order declaring that a specified amount is not payable to a person under the contract and, if already paid, an order that the builder or owner repay that amount;
(d)an order that a person pay specified compensation for loss or damage
(i)caused by any breach of the contract or of a provision of the Home Building Contracts Act 1991 Part 2; or
(ii)referred to in the Home Building Contracts Act 1991 Schedule 1;
(e)an order declaring that a specified amount of money claimed or money claimed for specified work is not payable by a person.
…
(7)A HBWC remedy order may require that the order be complied with within a time specified in the order.
42.HBWC remedy order by Building Commissioner
(1)Subject to regulations made under section 11(5), the Building Commissioner may deal with a HBWC complaint by making a HBWC remedy order referred to in section 41(2), (4) or (5) if satisfied that the order is justified.
…
(4)The Building Commissioner may make any ancillary or incidental order the Building Commissioner considers appropriate.
If an order made by the Building Commissioner pursuant to s 41 has not been complied with, the Building Commissioner has jurisdiction to make a further HBWC remedy order pursuant to s 51 of the BSCRA Act which is set out below:
51.Failure to comply with order to do work, new order
(1)In this section -
responsible adjudicator, in relation to an order, means
(a)if the order was made by the Building Commissioner, the Building Commissioner; and
(b)if the order was made by the State Administrative Tribunal, the State Administrative Tribunal.
…
(3)If the responsible adjudicator is satisfied that a HBWC remedy order referred to in section 41(2)(a) to do any work has not been complied with, or has been complied with in part only, by the person to whom it was given by the responsible adjudicator, the responsible adjudicator may
(a)revoke the order in relation to the work or the part in question; and
(b)make an order against the person for the payment of a sum of money as compensation for the failure to comply.
(4)An order under subsection (3)(b) is taken to be a HBWC remedy order.
…
(6)Sections 37, 38, 42 and 43 apply to the making of an order under this section.
The ability of the Building Commissioner to transfer a proceeding to this Tribunal is provided in s 55 of the BSCRA Act which is set out below:
55.Transfer of proceeding
(1)The Building Commissioner may, with the consent of the State Administrative Tribunal and in accordance with the rules of the Tribunal, transfer a matter that the Building Commissioner has decided to deal with under section 37 or 42, or that is before the Building Commissioner under section 51, to the Tribunal.
Issues to be determined
When the Building Commissioner seeks the Tribunal's consent pursuant to s 55 of the BSCRA Act to transfer a matter, the Tribunal ordinarily gives its consent. It is only in rare instances that the Tribunal may refuse to give consent, examples of which include where the Tribunal is unable to determine the substance of the underlying application which is sought to be transferred.
As to whether the Tribunal was able to properly determine an application pursuant to s 51 of the BSCRA Act in respect of HBWC remedy order 1 of 2017, there were three issues which the Tribunal thought necessary to consider:
1)whether the Building Commissioner had jurisdiction to vary HBWC remedy order 1 of 2017 by amending the date for compliance in respect of order 1;
2)whether order 1 made as part of HBWC remedy order 1 of 2017 was an order which could be made pursuant to s 41(2) of the BSCRA Act; and
3)whether order 1 forming part of the HBWC remedy order 1 of 2017 was an order which could be the subject of an application made pursuant to s 51 of the BSCRA Act.
To consider the above issues requires the Tribunal to undertake the task of statutory interpretation in respect of the relevant provisions of the BSCRA Act.
Relevant principles of statutory interpretation
The general principles of statutory construction are well known. They are usefully set out in Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 where French CJ, Hayne, Crennan, Bell and Gageler JJ observed at [39]:
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text' [Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46 [47]]. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.
In all tasks of statutory construction, one starts and ends with a consideration of the statutory text itself in its proper context. The proper context includes a consideration of all other relevant provisions within the statute, the history of the legislative scheme and the object or mischief to which the statute is directed to remedying (as recently restated by the Court of Appeal in Director General of Department of Transport v McKenzie [2016] WASCA 147 (McKenzie) at [46] - [47]).
It is important to embark on the task of statutory construction by ensuring that the provision in question is construed consistently with the language and purpose of the statute as a whole. In this regard, an interpretation which is inconsistent with either the underlying object of the statute and/or which is inconsistent with other provisions of the statute, will not be an interpretation which ought to be given. It is important therefore not to fall into the dangerous practice of preemptively reaching a conclusion regarding the intended operation of the provision and to then work backwards in order to give that meaning effect (see McKenzieat [48]).
Consideration
1. Whether the Building Commissioner has jurisdiction to vary a final order
As previously mentioned, the Building Commissioner sought to vary HBWC remedy order 1 of 2017 on 13 March 2017 by amending the date for compliance with order 1. Although the order purports that the variation was made pursuant to s 37(4) of the BSCRA Act, the Tribunal's view is that that section reference was made in error. Given that the order is a HBWC remedy order, the provision which allows the Building Commissioner to make ancillary and incidental orders is set out in s 42(4) of the BSCRA Act and not s 37(4) of the BSCRA Act (which only applies to a building remedy order, and not to a HBWC remedy order). This error, in the Tribunal's view, is of no consequence and appears to be an administrative error only. The real issue before the Tribunal is whether the Building Commissioner had jurisdiction at the time that he sought to vary a final order to do so.
As set out at above and at [16] there is jurisdiction for the Building Commissioner when making either a building remedy order pursuant to s 36 of the BSCRA Act or making a HBWC remedy order pursuant to s 41 of the BSCRA Act to make any 'ancillary or incidental order' the Building Commissioner considers appropriate pursuant to s 37(4) of the BSCRA Act and s 42(4) of the BSCRA Act respectively.
The terms 'ancillary' and 'incidental' are not defined in the BSCRA Act. Nor have those terms been previously considered in any published decision. There is also an absence of any guidance in the Explanatory Memorandum which accompanied the Building Services (Complaint Resolution and Administration Bill) 2010 (WA) when it was introduced into Parliament.
As the cases to which the Tribunal referred at [22] [24] above establish, the language used in statutory provisions must be given their ordinary and natural meaning. The Macquarie Dictionary Online (2017) provides the following useful definitions:
Ancillary1. accessory; auxiliary.
2.an accessory, subsidiary or helping thing or person.
incidental1. happening or likely to happen in fortuitous or subordinate conjunction with something else.
2.incurred casually and in addition to the regular or main amount: incidental expenses.
3.something incidental, as a circumstance.
4.minor expenses.
5.incidental to, liable to happen in connection with; naturally appertaining to.
The Macquarie Dictionary Online (2017) provides the following useful definition of 'subsidiary':
1.serving to assist or supplement; auxiliary; supplementary;… .
2.subordinate or secondary[.]
It also provides the following definition for 'accessory':
1.a subordinate part or object; something added or attached for convenience … .
…
4.contributing to a general effect; subsidiary[.]
Lastly, 'auxiliary' is defined in the Macquarie Dictionary Online (2017) as:
1.giving support; helping; aiding; assisting.
2.subsidiary; additional[.]
In the Tribunal's view, the above definitions assist in supporting that a proper construction of the use of the words 'ancillary' and 'incidental' in s 42(4) of the BSCRA Act is that an ancillary or incidental order is one which is subordinate or supplementary in nature to the substantive order. In this regard it merely contributes to the general effect of the HBWC remedy order rather than having a significant role.
The question therefore is whether s 42(4) of the BSCRA Act operates in a way which affords the Building Commissioner jurisdiction to make an order extending the date for compliance with any HBWC remedy order after the final order has been made.
In the Tribunal's view this is not the intent of the legislature in enacting that provision for the following reasons:
1)Section 42(1) of the BSCRA Act empowers the Building Commissioner to make a HBWC remedy order. The jurisdiction to make an 'ancillary' or 'incidental' order pursuant to subsection (4), on a proper construction of the provision, is restricted to the date on which the HBWC remedy order is made. This is because, in the Tribunal's view, subsection (4) does not operate independently and is merely a subsection of s 42. Section 42 empowers the Building Commissioner to make a HBWC remedy order and as part of that order, to make any 'ancillary' or 'incidental' order. On a proper construction, therefore, the order which is 'ancillary' or 'incidental' cannot be made at a later time but supports and is subordinate to the HBWC remedy order at the relevant time that the Building Commissioner makes that order.
2)Additionally, in the Tribunal's view, s 42(4) of the BSCRA Act is not intended to empower the Building Commissioner to impose a compliance date in respect of a HBWC remedy order. That power is already afforded to the Building Commissioner in s 41(7) of the BSCRA Act which specifically authorises the Building Commissioner to 'require that the [HBWC remedy] order be complied with within a time specified in the order'. The presence of this provision lends weight to a construction of s 42(4) such that it is not intended to simply add to the jurisdiction of s 41(7). Consistently with the Tribunal's views set out in point 1) above, s 41(7) makes it clear that the time for compliance must be specified when the HBWC remedy order is made. This of course is common sense because otherwise the respondent required to comply with the HBWC remedy order would be unaware when compliance must be achieved.
3)The Tribunal's view is that s 42(4) does not empower the Building Commissioner to vary a final order. When one affords the words 'ancillary' and 'incidental' their natural and ordinary meanings, it is clear that any order of that nature, is reliant on and simply assists the operation of the substantive HBWC remedy order. It therefore cannot be a power to vary the substantive HBWC remedy order. To vary the terms of a HBWC remedy order, in the Tribunal's view, is not 'incidental' or 'ancillary' the ability to vary a final order at a later date is substantive in nature. This interpretation is consistent with the operation of other provisions of the BSCRA Act including s 33 of the BSCRA Act which empowers the Building Commissioner to vary or revoke an interim building service order. No such similar authority to vary has been given to the Building Commissioner in relation to final orders. The absence of a specific provision in this regard, in light of the inclusion of s 33 by the legislature, tends against an interpretation that the Building Commissioner can vary a final order through the vehicle of an 'ancillary' or 'incidental' order. If the legislature intended to so empower the Building Commissioner, it would have done so in clear terms as it has in s 33 in respect of varying interim orders.
4)In addition, if the Building Commissioner were able to vary a final order it would significantly impact on applicants' ability to exercise their rights pursuant to s 51 of the BSCRA Act whereby once a final order is not complied with, it can be revoked and replaced with a different order. An ability to vary a final order would also interfere with the exercise of parties rights to seek review of final orders made by the Building Commissioner pursuant to s 57 of the BSCRA Act.
In summary, the Tribunal's view is that on a proper construction of s 42(4) of the BSCRA Act, any ancillary or incidental order must be made by the Building Commissioner in conjunction with the final HBWC remedy order at the time that it is made. That section cannot be enlivened to make an order at some later date. In addition, the Tribunal's view is that the authority to impose a date by which an order is to be complied with, is not the authority set out in s 42(4), as that authority is clearly set out in s 41(7) of the BSCRA Act. In addition, any authority of the Building Commissioner to vary an order is limited to interim orders pursuant to s 33 of the BSCRA Act.
2. Is order 1 of the HBWC remedy order 1 of 2017 an order made pursuant to s 41(2) of the BSCRA Act?
On the basis that the Building Commissioner has sought to transfer to this Tribunal an application made pursuant to s 51 of the BSCRA Act in respect of a varied HBWC remedy order, and given that the Tribunal has found that the Building Commissioner did not have authority to vary a final order, that is sufficient grounds on which to refuse to consent to the transfer. However, in the Tribunal's view it is important to identify the other issues with HBWC remedy order 1 of 2017, particularly given that the Building Commissioner may continue to issue orders to parties of a similar nature.
It is therefore important to consider whether order 1 in HBWC remedy order 1 of 2017 is an order which in fact can be made pursuant to s 41(2) of the BSCRA Act. Section 41(2)(a)(ii) of the BSCRA Act empowers the Building Commissioner to make an order requiring any 'specified work' to be done in performance of the relevant contract. The wording used in the provision of course needs to be given its natural and ordinary meaning. In this regard assistance is again given by the Macquarie Dictionary Online (2017) as to the definition of 'specify':
1.to mention or name specifically or definitely; state in detail.
2.to give a specific character to[.]
In the Tribunal's view where an order which requires work to be performed, which if not complied with can lead to disciplinary action and/or an applicant seeking to exercise their rights pursuant to s 51 of the BSCRA Act, it is important that it is clear in the terms of the order what is being required of the respondent. This is consistent with the ordinary and natural meaning of the word 'specified'.
To specify work to be performed, such work must be set out in a clearly identified and unambiguous manner. It is not specifying work to be done to issue an order which is ambiguous, broad or vague in its terms.
Order 1 of HBWC remedy order 1 of 2017, however, simply provides '[t]he respondent is to bring the building service at 18 Leaside Way, Spearwood to practical completion …'. It is often the case that parties have differing views regarding what is required for a contract to reach practical completion. In the Tribunal's view this is not an order capable of being made under the legislation. This is because, in the Tribunal's view, it does not specify the work which is required to be performed in order to allow an assessment to be made by the parties, the Building Commissioner and the Tribunal as to whether the order has in fact been complied with once the date requiring compliance has passed.
3. Can HBWC remedy order 1 of 2017 be the subject of an application pursuant to s 51 of the BSCRA Act?
Lastly, the Tribunal's view is that the order made by the Building Commissioner is not able to be the subject of an application pursuant to s 51 of the BSCRA Act. This is another fundamental reason why the Tribunal could not consent to its transfer. An application pursuant to s 51 of the BSCRA Act requires the Building Commissioner, and this Tribunal on a transfer of the matter, to determine whether the order has been complied with, and if not, to make a monetary order in its place. As already identified by the Building Commission in its transfer application, no such monetary order can be made unless the contract itself is terminated thus allowing the applicant to engage alternative contractors (refer to [10] above).
The Tribunal notes that in this matter the contract remained on foot. Neither party had sought to terminate it. There is simply no jurisdiction in the BSCRA Act for the Building Commissioner or the Tribunal to impose a termination of the contract on the parties. That decision lies entirely with the parties themselves. The application therefore made by the Building Commissioner fails for this reason as well as it is seeking to transfer an order that does not lend itself to the usual rights afforded to applicants pursuant to s 51 of the BSCRA Act.
In addition, the Tribunal notes that the applicant, despite extending the date by which practical completion could be reached by the respondent, continued to rely on the provisions of the contract itself and intended to seek loss and damage suffered as a result of the alleged delay. In those circumstances, the order of the Building Commissioner achieved nothing. It did not amend the provisions of the contract in respect of when practical completion ought to be reached and nor did it change the nature of the applicant's complaint which essentially was a claim for compensation for delay. With all due respect to the Building Commissioner, the applicant ought to have been advised to either withdraw the complaint and wait for practical completion to be reached such that his claim for compensation could be fully realised or to seek legal advice to determine whether there were grounds on which he could terminate the contract and claim loss and damage. However, to proceed and make an order in the relevant terms, in this Tribunal's view, did nothing to advance the applicant's complaint.
The Tribunal notes for completion that order 2 made by the Building Commissioner (refer to [7] above) is not a HBWC remedy order and ought not to have formed part of HBWC remedy order 1 of 2017. It has no function whatsoever. It appears to be merely the provision of information to the parties which would have been better provided by way of correspondence.
Finally, the Tribunal notes that complaint item 2 was ultimately referred to the Tribunal pursuant to s 11(1)(d) of the BSCRA Act and was settled by the parties at mediation and a final order made on 24 July 2017. On that basis the decision of the Tribunal to refuse to consent to the transfer of order 1 of HBWC remedy order 1 of 2017 had no impact on the substantive claim of the applicant. If that were not the case, the applicant would have been required to consider making an application pursuant to s 57 of the BSCRA Act seeking review of order 1 of HBWC remedy order 1 of 2017. That course of action is however unnecessary.
Order
For the reasons set out above, the Tribunal's view was that consent ought not to be given to the transfer of the matter from the Building Commission to this Tribunal. The Tribunal therefore made the following order:
1.The Tribunal refuses to consent to the transfer of the proceeding from the Building Commissioner.
I certify that this and the preceding [46] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS C WALLACE, SENIOR MEMBER
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