CHETTY and KULOWALL CONSTRUCTION PTY LTD - [2023] WASAT 98

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   CHETTY and KULOWALL CONSTRUCTION PTY LTD [2023] WASAT 98
MEMBER:   MS R PETRUCCI, MEMBER
MR R AFFLECK, SENIOR SESSIONAL MEMBER

HEARD:   17 JULY 2023 and 18 JULY 2023
DELIVERED          :   31 JULY 2023
PUBLISHED           :   23 OCTOBER 2023
FILE NO/S:   CC 1936 of 2021
BETWEEN:   SAROJA CHETTY
First Applicant
SIGAMONEY CHETTY
Second Applicant
AND
KULOWALL CONSTRUCTION PTY LTD
Respondent

Catchwords:

Building dispute - Defects in construction - Home building contract work - Breach of contract - Respondent's conduct - Costs of remedial work - Exercise of Tribunal discretion in making a building remedy order - Whether order to remedy or order to pay - Applicants costs of proceeding

Legislation:

Building Services (Complaints Resolution and Administration) Act 2011 (WA), s 5(1), s 5(2), s 11(1)(d), s 36, s 36(1)(b), s 36(1)(c), s 38, s 41, s 41(2)(b), s 49
Home Building Contract Act 1991 (WA), s 3
State Administrative Tribunal Act 2004 (WA), s 46(1), s 87, s 87(2), s 87(3)

Result:

Application partly successful

Category: B

Representation:

Counsel:

First Applicant	:	In Person
Second Applicant	:	In Person
Respondent	:	No Appearance

Solicitors:

First Applicant	:	N/A
Second Applicant	:	N/A
Respondent	:	N/A

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

Brooks and Gransden Building Company Pty Ltd [No 2] [2021] WASAT 86
Byham and Afra Construction Pty Ltd [2014] WASAT 38

REASONS FOR DECISION OF THE TRIBUNAL

Background

We heard the application over two days on 17 and 18 July 2023, following which we delivered our oral decision on 31 July 2023 where we made orders (see below at [88]).
We informed the parties that we would provide written reasons for our decision. Our reasons are as follows.

Introduction

On or about 22 May 2019 Saroja Chetty and Sigamoney Chetty (the applicants) signed a lump sum building contract (contract) with Kulowall Construction Pty Ltd trading as Opus Homes (the respondent) for the construction of a new residential dwelling in the Perth suburb of North Coogee (the property).
Two years later, starting on 22 July 2021, the applicants lodged various building service and home building work contract complaints against the respondent with the Building Commissioner.
The applicants made complaints under s 5(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) alleging the regulated building service provided by respondent was not carried out in a proper and proficient manner, or is faulty or unsatisfactory. The applicants rely on the building expert reports provided by Mr R Hall of Housecalls, Mr L Deshon of Home Integrity Building Consultants and Mr N Harrison, the inspection report of Mr I McGrath of the Department of Mines, Industry Regulations and Safety and finally the costings report provided by Mr G Brackenreg of Gavin Brackenreg Consultant (Megalong Nominees Pty Ltd).[1]
[1] Applicants bundle of documents filed on 30 June 2023 at pages 364 to 821 and 831 to 847.
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.

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Details

Case: [2023] WASAT 98
Decision Date: 23 OCTOBER 2023

CaseChat Overview and Summary

The case involved Chetty, a homeowner, and Kulowall Construction Pty Ltd, a construction company, in the context of a home building contract. Chetty engaged Kulowall to construct a new home, but upon completion, discovered significant defects. Chetty brought proceedings against Kulowall, asserting that Kulowall had breached the contract by failing to construct the home to the agreed standard. Chetty sought an order for Kulowall to remedy the defects and to compensate Chetty for the costs of the proceedings.

The central legal issues were whether Kulowall had indeed breached the contract by failing to construct the home to the required standard, and if so, whether the court should order Kulowall to remedy the defects or to pay for the remedial work. Additionally, the court had to determine whether Chetty was entitled to the costs of the proceedings from Kulowall. The primary focus was on the interpretation of the contract, the standard of workmanship, and the applicability of statutory provisions that allow for building remedy orders or payment orders in such disputes.

The court found that Kulowall had indeed breached the contract by not meeting the agreed standard. The court determined that the statutory provisions allowed for either a building remedy order or a payment order, depending on the circumstances. In this case, the court found that the defects were significant and complex, making it more appropriate to order Kulowall to pay for the remedial work rather than to require them to perform it themselves. The court also considered the costs of the proceedings and found that Chetty was entitled to an order for costs against Kulowall. The reasoning emphasised the importance of ensuring that the homeowner received a remedy that was both effective and timely, while also considering the practicalities of enforcement.

The court ordered Kulowall to pay Chetty for the costs of remedial work and also ordered Kulowall to pay Chetty's costs of the proceedings. This decision highlighted the court's discretion in choosing between a building remedy order and a payment order, and underscored the importance of contractual obligations and statutory protections for homeowners in construction disputes.

Orders