CHALAKUZHY and OLSEN - [2017] WASAT 104

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…

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 CHALAKUZHY and OLSEN

Details

AGLC: CHALAKUZHY and OLSEN [2017] WASAT 104
Case: [2017] WASAT 104
Decision Date: 30 MAY 2017

CaseChat Overview and Summary

In this case, Chalakuzhy and Olsen were involved in a legal dispute concerning the transfer of matter from the Building Commission to the Residential Tenancies and Rooming Accommodation Tribunal. The central issue was whether the Building Commissioner had the authority to modify a final order without the parties' consent. Additionally, the court examined whether the power to issue ancillary or incidental orders could be used to alter a final order. The interpretation of the terms 'ancillary' and 'incidental' was also a matter of consideration, along with whether mandating a party to achieve practical completion constituted an order that required specific work to be carried out.

The court delved into the statutory framework governing the Building Commissioner's powers, specifically focusing on the conditions under which consent was necessary for the transfer of a matter. It assessed whether the power to make ancillary or incidental orders extended to modifying final orders and examined the scope and limitations of these powers. The court scrutinised the legislative language to determine the precise meaning of 'ancillary' and 'incidental' within the context of building-related disputes. Furthermore, it analysed whether an order compelling a party to reach practical completion was an order that mandated the performance of specific work.

Upon examining the relevant statutes and case law, the court concluded that the Building Commissioner did not possess the authority to alter a final order without the parties' consent. It determined that the power to issue ancillary or incidental orders was limited to matters that were genuinely supplementary to the main order and did not encompass the capacity to revise final orders. The court interpreted 'ancillary' and 'incidental' in a manner that aligned with their ordinary meanings, finding that an order requiring practical completion did not mandate the execution of specific work but rather was a condition for the resolution of the dispute. Consequently, the court ruled in favor of Chalakuzhy and Olsen, affirming that the Building Commissioner's actions were beyond their statutory authority.

In light of the court's decision, it was ordered that the matter be transferred to the Residential Tenancies and Rooming Accommodation Tribunal, with the Building Commissioner's attempt to vary the final order deemed invalid. The court's ruling underscored the importance of strict adherence to statutory mandates and the limitations of the Building Commissioner's powers in modifying final orders.

Orders