Clintway Pty Ltd and the Owners Of Strata Plan 21805
[2006] WASAT 342
•24 NOVEMBER 2006
CLINTWAY PTY LTD and THE OWNERS OF STRATA PLAN 21805 [2006] WASAT 342
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 342 | |
| BUILDERS' REGISTRATION ACT 1939 (WA) | |||
| Case No: | VR:263/2005 | 28 AUGUST 2006 | |
| Coram: | MR C RAYMOND (SENIOR MEMBER) | 24/11/06 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave granted on limited grounds | ||
| B | |||
| PDF Version |
| Parties: | CLINTWAY PTY LTD THE OWNERS OF STRATA PLAN 21805 |
Catchwords: | Application for leave to review decision of Building Disputes Tribunal Whether breach of the rules natural justice Effect of affirmation of Order to Remedy issued by Registrar Whether Disputes Tribunal has power to vary or extend terms of Order to Remedy |
Legislation: | Builders' Registration Act 1939 (WA), s 12A, s 12A(1), s 12A(1a), s 12A(1aa), s 12A(4a), s 33A, s 33A(3), s 35, s 41 Home Building Contracts Act 1991 (WA), s 35 State Administrative Tribunal Act 2004 (WA), s 9, s 27, s 29 |
Case References: | Tangent Nominees Pty Ltd and Edwards & Anor [2005] WASAT 119 BGC Constructions Pty Ltd and Vagg and Anor [2005] WASAT 265 Bradshaw v McGuire WASC (FC) (Unreported, 30 April 1986) Busch v Stevens (1962) 1 ALL ER 412 J-Corp Pty Ltd and Ly & Anor [2006] WASAT 132 Phoenix Timber Products Trading as Vintage Hardwoods and Skinner [2005] WASAT 315 Tangent Nominees Pty Ltd v Edwards & Anor [2006] WASC 45 |
Orders | 1. The application is amended in accordance with the proposed amended grounds of review set out in the applicant's interim application lodged on 23 February 2006.,2. The application is further amended by adding the following grounds of review:,"6. The applicant was denied procedural fairness because it was not informed of the case which it had to meet.,7. The Tribunal lacked jurisdiction to vary the Order to Remedy other than in accordance with s 12A(4a) of the Builders' Registration Act 1939 (WA)".,3. The applicant is granted leave to review the decision of the Disputes Tribunal made on 15 April 2005 under the amended ground 7 above only, and the application for leave is dismissed in respect of grounds 1 – 6 inclusive. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : BUILDERS' REGISTRATION ACT 1939 (WA) CITATION : CLINTWAY PTY LTD and THE OWNERS OF STRATA PLAN 21805 [2006] WASAT 342 MEMBER : MR C RAYMOND (SENIOR MEMBER) HEARD : 28 AUGUST 2006 DELIVERED : 24 NOVEMBER 2006 FILE NO/S : VR 263 of 2005 BETWEEN : CLINTWAY PTY LTD
- Applicant
AND
THE OWNERS OF STRATA PLAN 21805
Respondent
Catchwords:
Application for leave to review decision of Building Disputes Tribunal - Whether breach of the rules natural justice - Effect of affirmation of Order to Remedy issued by Registrar - Whether Disputes Tribunal has power to vary or extend terms of Order to Remedy
Legislation:
Builders' Registration Act 1939 (WA), s 12A, s 12A(1), s 12A(1a), s 12A(1aa), s 12A(4a), s 33A, s 33A(3), s 35, s 41
Home Building Contracts Act 1991 (WA), s 35
State Administrative Tribunal Act 2004 (WA), s 9, s 27, s 29
(Page 2)
Result:
Application for leave granted on limited grounds
Category: B
Representation:
Counsel:
Applicant : Mr P Kyle
Respondent : Mr M Atkinson
Solicitors:
Applicant : Kyle & Company
Respondent : Atkinson and Associates
Case(s) referred to in decision(s):
Tangent Nominees Pty Ltd and Edwards & Anor [2005] WASAT 119
Case(s) also cited:
BGC Constructions Pty Ltd and Vagg and Anor [2005] WASAT 265
Bradshaw v McGuire WASC (FC) (Unreported, 30 April 1986)
Busch v Stevens (1962) 1 ALL ER 412
J-Corp Pty Ltd and Ly & Anor [2006] WASAT 132
Phoenix Timber Products Trading as Vintage Hardwoods and Skinner [2005] WASAT 315
Tangent Nominees Pty Ltd v Edwards & Anor [2006] WASC 45
(Page 3)
Summary of Tribunal's decision
1 The applicant applied pursuant to s 41 of the Builders' Registration Act 1939 (WA) to review a decision of the Building Disputes Tribunal made on 15 April 2005.
2 The decision resulted in the Building Disputes Tribunal amending and, in effect, extending the time for compliance with an Order to Remedy which was first made by the Registrar of the Building Disputes Tribunal in 1996, but which was affirmed on a review by the Building Disputes Tribunal in 1997. Thereafter, certain remedial work had been carried out. The Building Disputes Tribunal found that the remedial work had failed and that the original problem was continuing.
3 The applicant challenged the decision on many grounds which were dependent upon an analysis of the true nature of the hearing conducted in 2005. The proceedings before the Building Disputes Tribunal resulting in the 2005 hearing followed a written complaint made by the respondent dated 19 November 2002 asserting that the original problem was continuing. The Tribunal analysed the proceedings and noted that the same complaint no O.8880 had been used throughout the proceedings. The only complaint form in evidence was that which was lodged in 1996. The findings of the Building Disputes Tribunal reflected only that the remedial works had failed, not that there was any defect in those works. The Tribunal concluded that the proceedings were in the nature of a relisting of the original proceedings for further determination following the 1997 hearing at which the Order to Remedy was affirmed.
4 As a result of this finding, many of the parties' contentions, based on alternative interpretations of the nature of the proceedings fell away.
5 The application for leave, by consent of the parties, was conducted on proposed amended grounds of review. The applicant's Statement of Issues, Facts and Contentions and submissions went beyond those grounds, without objection, and the Tribunal therefore determined the additional issues raised, indicating that it would amend the application to include grounds covering the submissions made.
6 One of the contentions raised, not covered by the original grounds, was that the applicant had been denied procedural fairness because it had been unable to identify the case it had to meet. The Tribunal noted that the Building Disputes Tribunal is not a court of pleadings, that it was open
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- to either party to request that the issues be identified prior to the hearing, and that the applicant had not done so. Further, a spokesperson for the respondent had explained at the outset of the hearing that it regarded the arguments raised at the 1997 hearing to be irrelevant; the issue was that the problem still existed, and the applicant had accepted responsibility if its remedial works were unsuccessful. The applicant was represented by legal counsel who was able to make closing submissions on each of the possible outcomes, depending on the nature of the proceedings.
7 The Tribunal concluded that the applicant had been provided with a sufficient indication of the case which the respondent wished to present, that there was nothing to indicate that the applicant had any difficulty in presenting its case, and accordingly concluded that there had been no denial of procedural fairness. If that conclusion was wrong, the Tribunal indicated that it had made no difference to the outcome of the proceedings, and in the exercise of its discretion, would not grant any remedy based thereon.
8 The applicant had further submitted that the Building Disputes Tribunal had erred in making an order purporting to extend and vary the original Order to Remedy on the basis that its powers were limited by s 12A(1aa) of the Builders' Registration Act 1939. The Tribunal accepted that there was sufficient doubt as to the Building Disputes Tribunal's power to proceed as it had and that there would be a substantial injustice if leave was not granted to the applicant to have the decision reversed, if it was correct in its contentions. In addition, there were a number of submissions made in relation to the reach of the order, insofar as it was asserted to extend a remedy to owners who had not been included in the original Order to Remedy and required procedures to be followed which it was contended could not be characterised as an Order to Remedy building work. In the circumstances, the Tribunal indicated that it would grant leave in terms which would allow all contentions relating to the content and reach of the Building Disputes Tribunal's order to be ventilated in the review.
9 Orders were made amending the application to reflect the additional grounds which had been argued. The Tribunal granted leave to review the Building Disputes Tribunal's decision limited to the added ground that the Tribunal lacked the jurisdiction to vary the Order to Remedy other than in accordance with s 12A(4a) of the Builders' Registration Act 1939 and dismissed all other proposed grounds of review.
(Page 5)
Background and the application for review
10 The applicant applies for leave to review a decision of the Building Disputes Tribunal (Disputes Tribunal) pursuant to s 41 of the Builders' Registration Act 1939 (WA) (BR Act). The decision was made on 15 April 2005. All references to sections of legislation in these reasons for decision are references to the BR Act unless otherwise stated.
11 During the course of the proceedings, the applicant (builder) filed amended grounds which formed the basis of the contest between the parties. A formal order granting leave for the amendment has yet to be made, and will be incorporated in the orders made herein. In order to better understand the grounds relied on, it is necessary to set out the background to the matter and the material findings made in the decision proposed to be reviewed.
12 In approximately 1991/1992, the applicant carried out a residential development involving the construction by it of a complex of 30 residential units in Moran Court in Beaconsfield, South Fremantle. The land is comprised in a duly registered strata plan and the respondent is the strata company incorporated on such registration. For convenience, the strata company and individual lot owners are referred to as the owner or owners. No issue is made as to identity of the claimant before the Disputes Tribunal. The land is situated overlooking an old quarry which is now used as a football ground. The eastern end of the quarry has a very steep face rising some 60 to 70 metres to the crest, on top of which are seven units, which feature in various degrees in the dispute. A site plan shows that these units are in a row close to the edge of the bank, and the plan reflects, prophetically, "Note: Engineer to check soil stability in this area". A complaint lodged with the then Building Disputes Committee in 1996 included claims that the land and a fence along this particular boundary were subsiding.
13 An inspector of the Builders' Registration Board (Board) inspected the property and provided a report, which reflected his observations that subsidence of the ground was occurring and that this was affecting the rear fence and brick paving. The report dealt only with Units 1, 3 and 4 concerning this issue. The inspector's report set out the action required to be undertaken by the builder, and relevantly, in each instance, it was:
"(a) Under the direction of a suitably qualified engineer, recover the fence, internal soil levels and associated works to the same levels and conditions established when the project was completed in 1991.
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- (b) Due to the extreme nature of the site and adjoining property, provide the Board with a copy of the design."
14 It is to be noted that the original inspector's report has not been provided to the Tribunal. The report included is dated 9 October 1996 and its heading reflects that it supersedes a notice of assessment dated 22 July 1996.
15 On 15 November 1996, the Registrar of the Disputes Committee, acting under his delegated powers, issued an Order to Remedy no 394/96 which required the builder to undertake the work precisely as set out by the inspector under the heading "Action Required". The inspector's report and the Order to Remedy both reflect a reference "O.8880". By its terms, the order was to be complied with within 28 days of the Order, or such further time as may be allowed on application.
16 Notwithstanding the terms of the above Order, the builder's engineer, in a letter dated 16 December 1996, asserted that all that was required was to make good the distortions in the fence line and ensure that the discharge of the water from the properties was diverted away from the rear fence line. On 7 February 1997, the same engineer wrote to the manager of the builder advising that no drawings for a design were necessary as the problem was so simple.
17 On 13 December 1996, the builder sought a review of the orders of the Registrar. The review hearing took place on 8 September 1997. The written reasons for decision, which were issued on or about 19 September 1997, reflect that although the Registrar's order contains many items of complaint, the only issue between the parties related to the subsidence of the ground and fence, and that disagreement was limited to how the problem should be remedied. As a result of that disagreement, the owners sought an order that the builder pay the cost of the remedial work to them. The builder, by its counsel, expressly accepted the Registrar's order and conveyed that the builder wished to have an opportunity to comply with it. Further, she stated that the builder accepted that if the method proposed did not correct the problem, then it would remain liable to remedy the faulty work. These reasons for decision reflect that the file no was "O.8880".
18 The builder proceeded to carry out the work in accordance with its engineering advice by installing a soakwell, straightening up the fence and putting some concrete around the feet of the posts holding up the fence,
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- filling holes or depressions where the ground had subsided with sand, compacting those areas and relaying the paving.
19 The reasons for decision of the Disputes Tribunal of 15 April 2005 reflect that on 29 September 1997, a letter from solicitors, Corser and Corser, reflected that Unit 2 had also been affected. On 19 November 2002, the builder was advised by letter that the matter was ongoing and all the Units 1 – 7 along the boundary were affected by continuing erosion. A copy of that letter was provided to the Disputes Tribunal and resulted in a hearing on 17 March 2005, the outcome of which is reflected in the reasons for decision of 15 April 2005.
20 The evidence of the owner of Unit 3 in the 2005 hearing was that the subsidence or erosion continued within 12 months of the remedial work having been carried out (T:77). The remedial work was carried out on behalf of the builder by another contractor. The person who carried out the actual work, Mr Alberto Sgro, gave evidence at the hearing. In effect, all that he did was to remove the affected brick paving, compact the sand, put the brick paving back, straighten the fence and put concrete against the fence to hold it straight (T:111). That description is typical of the work done in relation to the other affected Units 2, 3 and 4 which were the subject of the Order to Remedy. It is not clear who installed the soakwell, but there is no issue that it was installed. The work was carried out in accordance with the advice of the builder's engineer. According to Mr Sgro, no remedial work was carried out in respect of Unit 1 (T:117).
21 A director of the builder, Mr Nicol Stati, also gave evidence before the Disputes Tribunal. One of the matters to which he testified related to the original construction of the development and the provision of sandfill. He stated that about 400 – 600 metres (presumably cubic metres) of sand had been imported to level the site. This was because concrete tanks on the site had been demolished and the base of the tanks had been left in position, and it was thought cheaper to bring in fill so that the footings for the buildings could be dug into the sand. The fill was placed evenly over the entire site. He also testified that the sandfill had extended to approximately 1.0 metre beyond the fence line which was on the boundary of the sites on the quarry side of the development (T:85, T:86 and T:88). The depth of the fill was approximately 400 millimetres (T:85).
The decision under review
22 In the April 2005 written reasons for decision, the Disputes Tribunal set out the history of the dispute and made the following relevant findings.
(Page 8)
23 The letter of 19 November 2002 raised issues concerning all seven units along the boundary with the quarry, but Units 5, 6 and 7 had not made earlier claims in the 1996 proceedings and were time barred.
24 The original complaint had related to Units 1, 2, 3 and 4, but the Order to Remedy as made by the Registrar, and subsequently affirmed by the Disputes Committee, made no reference to Unit 2. The Tribunal found that the four units had remedial work completed by about the middle of September 1007. That finding, which appears inconsistent with the evidence of Mr Sgro in relation to Unit 1, has not been challenged – although the owners, in their written submissions to this Tribunal, assert that no work was done in respect of Unit 1.
25 The claims in respect of Units 1 – 4 were "within time in making the current claim for a failure of the remedial work".
26 The evidence of the builder that the further erosion, since the remedial work had been carried out, was due to rainwater or garden water draining out to the boundary and over the paving installed by most of the owners, was rejected. This was because Unit 7 had no garden and no paving. It had lost half a metre of ground and had been forced to relocate the fence closer to the unit. The Tribunal found that the effect of water was minimal and that the problem lay with the instability of the bank itself.
"At construction, the respondent (builder) simply assumed the site was stable notwithstanding the warning on the plan. It levelled the existing site and placed a layer of yellow sand on top to provide the necessary base for the houses. It assumed that the cliff face or bank was a flat face of limestone overlaid by a sand slope held in place by the vegetation growing on the sand. It did not, therefore, take any steps to retain the sand under the rear of Units 1 – 7, neither did it test the nature of the ground along the boundary. The yellow top layer of sand can be seen in the slope of the bank as part of the erosion."
27 The Disputes Tribunal found that it was obvious that the whole bank had sunk and was steadily eroding through the slippage of sand into the quarry. Further, that "the remedial work carried out was totally inappropriate and was nothing more than a temporary solution to a problem which was going to recur and shortly afterwards did so".
(Page 9)
28 The Tribunal found that the simple solution proffered by the builder's engineers had not worked and that the sand base had to be contained by a properly designed and constructed wall.
29 The Disputes Tribunal considered that good engineering practice would require that the remedial work be carried out to the whole length of the boundary.
30 The Disputes Tribunal then ordered as follows:
"(1) The respondent builder to prepare an engineering plan to stabilise and restore the grounds to its original level and further such a plan is to show the action required to permanently stabilise the ground level.
(2) The respondent to obtain the approval of the owners of Units 1, 2, 3 and 4 to the proposed actions.
(3) The respondent to provide to the Tribunal copies of its plan and the written approval of the owners before taking action on the remedial work.
(4) The respondent to complete action required by Orders (1) to (3) within six weeks of the date of this Order with liberty to apply for an extension of time if absolutely necessary.
(5) There be liberty on the part of the owners to apply to this Tribunal if untoward delays take place in remedying the situation."
The proposed amended grounds of review
31 The proposed amended grounds of review are expressed in these terms:
1) The complaint before the Tribunal was that the applicant (builder) failed to stabilise the land and the Tribunal should have held that there was no complaint of faulty or unsatisfactory work.
2) The Tribunal should have found there was no evidence that the applicant had any obligation to stabilise the land when the houses were built in 1992.
(Page 10)
- 3) The Tribunal should have found that the complaint was a work done in 1992 and was therefore statute barred pursuant to s 12A(1aa) of the BR Act.
4) The Tribunal should have found that the applicant (builder) was not the person who carried out the work the subject of the complaint.
5) The Orders made by the Tribunal were not Orders to Remedy the building work the subject of the complaint and were therefore beyond the jurisdiction of the Tribunal.
32 At the commencement of the hearing, the builder's counsel notified the Tribunal that ground 4 would not be pursued.
33 In addition, although not raised in the application, the proposed amended grounds, or the builder's Statement of Issues, Facts and Contentions, the builder's counsel argued that leave should be granted, and ultimately the decision under review should be set aside, on the grounds of a failure to comply with the rules of natural justice because the builder was not informed of what work was the subject of complaint. The point was first raised in submissions filed on behalf of the builder in response to the owner's Statement of Issues, Facts and Contentions.
34 No objection was made to these submissions, and as this Tribunal is bound to review decisions fairly and according to the substantial merits of the case and with as little formality and technicality as is practicable (s 9 of the State Administrative Tribunal Act 2004 (WA) (SAT Act)), the Tribunal will have regard to such submissions and determine the issues raised thereby.
The contentions of the parties
35 The parties' contentions are extensive. A number of the contentions are dependent upon an analysis of the true nature of the proceedings before the Disputes Tribunal in 2005, namely, whether:
(a) the hearing concerned the 1996 complaint about the 1992 work, relisted for further determination following the 1997 hearing (option A);
(b) the hearing was based on the 2003 complaint about the 1992 work (option B); or
(Page 11)
- (c) the hearing concerned the 2003 complaint about the 1997 work (option C).
36 The Tribunal has taken into account all of the written and oral submissions made on behalf of the parties. In effect, the submissions or contentions are subsumed within the following issues:
1) Did a breach of the rules of natural justice occur, and if so, what consequences flow therefrom?
2) Which of options A, B or C represent a proper analysis of the nature of the 2005 hearing before the Disputes Tribunal?
3) What consequences flow from the answer to 2, having regard to the parties' submissions?
37 In considering the above issues, in order to be entitled to leave to review the decision in question, the builder must establish that the decision is wrong, or at least attended with sufficient doubt, such that a substantial injustice would be done by leaving the decision unreversed. The Tribunal should be slow to grant leave to review or to uphold reviews of the Disputes Tribunal, except in cases where there is no discernible basis for the decision or, where fundamental rules of natural justice have been breached by preventing a party adequately being heard: Tangent Nominees Pty Ltd and Edwards & Anor [2005] WASAT 119 at pages 14 and 15 and the authorities there cited.
Did a breach of the rules of natural justice occur, and if so, what consequences flow therefrom?
38 The builder was represented at the hearing by Mr S Bonnie of counsel. At the commencement of the hearing, Mr Bonnie sought clarification as to the nature of the application before the Disputes Tribunal. The learned chairman of the Disputes Tribunal was not able to provide that clarification, indicating that it was necessary to establish the facts, that all that was evident at that stage was that there were general allegations to the fact that the paving is breaking up because the "soil is disappearing from beneath it" and that the reasons for that occurring might indicate whether any responsibility lay with the builder.
39 At that point, Mr Royal, a civil engineer who was called to give evidence on behalf of the owners, sought leave to address the Tribunal on the issue. One of the owners present also stated that Mr Royal was there
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- "basically to present our case" so that it is apparent he was expected to speak generally on behalf of the owners.
40 Mr Royal submitted that "the argument about what had happened at the previous Tribunal hearing (in 1996) is now irrelevant to the fact that the problem still exists and that the builder in his past statement has said that yes, he is responsible for that work. We are now claiming that it does not work".
41 This exchange must be assessed in the light of what occurred at the previous Tribunal hearing. As indicated above, the parties disagreed as to how the problem should be remedied and counsel for the builder pressed the Tribunal to permit the builder to carry out the remedial work in accordance with the Registrar's order. The Tribunal's reasons for decision reflect that counsel for the builder "told us that the builder accepts that if the method proposed by him does not correct the problem then he remains liable to remedy the faulty work".
42 There are a number of matters implicit in that statement, to which reference will be made further below, but importantly, the reasons for decision reflect that, on balance, the Disputes Tribunal considered that, notwithstanding that other engineers disagreed with the builder's proposed method, the builder should be allowed an opportunity to correct the problem. The Disputes Tribunal therefore affirmed the Order to Remedy no 394/96 in the terms in which it was expressed.
43 The object of the Disputes Tribunal was to ensure that the problem of which complaint had been made was remedied.
44 The Disputes Tribunal is not a court of pleadings, but it was open to either party to request pleadings, or that some other procedure be adopted to sufficiently identify the issues. There is nothing to suggest that the builder made any such request. The builder's solicitors filed submissions comprising some 62 paragraphs prior to the hearing in which, amongst other matters, they commented upon a report obviously provided by the owners, from David Royal Consulting Engineers. They also commented on a report provided by an inspector of the Builders' Registration Board on 9 December 2003, highlighting that the inspector had identified that erosion had occurred along the boundary, that this was an ongoing problem and that it could be aggravated by runoff caused by water and/or reticulation. The submissions denied that the rectification works previously carried out had been unsuccessful. In the final submission on the law, it was expressly submitted that the work carried out by the
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- builder in the original construction and in the remedial work subsequent to the Order to Remedy is neither defective nor unworkmanlike.
45 At the conclusion of the hearing, Mr Bonnie had no difficulty in making submissions which included a range of scenarios, including, if the complaint was a continuation of the complaint that was filed in 1966.
46 In these circumstances, the Tribunal considers that the builder had a sufficient indication of the case which the owners wished to present. It was explained sufficiently clearly by Mr Royal. Mr Bonnie did not then complain that he did not understand the case, and the transcript reflects that he had prepared for all the alternative positions. There is nothing to indicate that the builder had any difficulty in presenting its case. The Tribunal accordingly concludes that there was no denial of procedural fairness. If that conclusion is wrong and the circumstances do constitute a denial of procedural fairness, the Tribunal, in any event, considers that it made no difference to the outcome of the proceedings and, in the exercise of its discretion, would not grant any remedy in these circumstances: see The Laws of Australia (Thomson, par 2.5.330) and the authorities there cited.
What is the true nature of the hearing in April 2005?
47 Under s 33A of the BR Act, the Registrar has delegated to him the powers of the Disputes Tribunal to act in accordance with the written approval of the Disputes Tribunal or the chairperson. Any exercise of jurisdiction by the Registrar is reviewable by the Disputes Tribunal.
48 The jurisdiction of the Disputes Tribunal, and therefore that delegated to the Registrar, is the jurisdiction conferred by s 12A of the BR Act and by the Home Building Contracts Act 1991 (WA) (s 35). In this case, the jurisdiction being exercised was that under s 12A of the BR Act which, by its terms, requires that the Disputes Tribunal find that building work has not been carried out in a proper and workmanlike manner by reason that the building work is faulty or unsatisfactory, or that, in some respect (other than its being faulty or unsatisfactory), the building work has not been carried out in a proper and workmanlike manner.
49 It is patently clear from the terms of the Order to Remedy issued by the Registrar that it was based on the notice of assessment prepared prior thereto by the inspector of the Builders' Registration Board. The wording used is identical. There was nothing to indicate that there was any other evidence before the Registrar. The inspector's report reflected the
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- observations made and, although the evidence contained therein was extremely limited, it was sufficient for the Registrar to form a view, whether correct or not, that the subsidence was the responsibility of the builder. This was implicit by the inspector describing the action required by the builder which was to recover the fence, in terms of soil levels and associated works to the same levels and conditions established when the project was completed in 1991.
50 It was, of course, open to the builder to have the decision reviewed if it was considered to be wrong in any respect. That right was duly exercised, but as already canvassed above, the builder elected at the review hearing to accept the Registrar's order as made. The Disputes Tribunal referred above to the terms in which counsel for the builder pressed for an opportunity to comply with the Order to Remedy, namely, that "the builder accepts that if the method proposed by him does not correct the problem, then he remains liable to remedy the faulty work."
51 The Order to Remedy, as affirmed, must be understood in this context. If the levels could not be recovered, and by implication be maintained, at the same levels and conditions when the project was completed, it could not be said that the remedial work was successful.
52 As was put in submissions to this Tribunal on behalf of the builder, and is clearly correct, the Registrar could only have made the initial Order to Remedy, and it could only be affirmed by the Disputes Tribunal if the original building work had not been carried out in a proper and workmanlike manner within the meaning of s 12A(1) or 12(1a) of the BR Act. For reasons given above, that was implicit in the building inspector's report and the Registrar's order. It was also recognised by the builder's counsel acknowledging that if the remedial work did not correct the problem, the builder remained liable to remedy the faulty work.
53 It is not necessary to go any further than the above findings on this issue. There is, however, evidence subsequently acquired which points to the Registrar's original conclusion being correct. Building work is not restricted to brick and mortar. It includes all tasks necessary for the carrying out of building work, part of which is the carrying out of siteworks necessary to support the works. In this instance, Mr Stati's evidence before the Disputes Tribunal in the 2005 hearing establishes that the builder had a choice as to how to go about the construction of the footings. The builder could have dug out the base of the concrete tanks and carried out any hard digging that may have been necessary to remove limestone, or it could elect, as it did, to bring in fill. Having brought in
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- fill, it had to be adequately stabilised. It is clear from the Disputes Tribunal's findings in April 2005 that the fill was not adequately stabilised in 1991/1992 and that the remedial work carried out in 1997 had not solved the problem.
54 If the owner's case was that the remedial work was in itself defective, it would have given rise to a fresh complaint, unrelated to the 1996 complaint. In that event, as submitted for the builder, it would have been necessary for the owners to comply with the preliminary notice requirements of s 12A of the BR Act and a complaint could then have been made to the Disputes Tribunal accompanied by a copy of the preliminary notice. There is nothing to suggest that occurred. The documentation discloses only the original 1996 complaint form.
55 As reflected above, the matter was dealt with by the Tribunal under the same complaint no O.8880. In these circumstances, the Tribunal concludes that the correct option outlined above is option A, namely that the proceedings in April 2005 concerned the 1996 complaint about the 1992 work, relisted for further determination following the 1997 hearing.
56 The Disputes Tribunal's reasons for decision make no express finding to the above effect, its reasons refer only to the remedial work failing. There is no finding, as the builder submitted, that the remedial work was defective. All of this is consistent only with the above finding in favour of option A, as reflecting the basis upon which the 2005 hearing was conducted.
The consequences of the above findings
57 Obviously, the parties' respective submissions in relation to options B and C above fall away.
58 In relation to option A, the following issues arise from the builder's contentions and submissions in response to the owner's contentions. It is to be noted that a number of the builder's contentions fall away in light of the above findings that the Registrar's Order to Remedy was based, albeit on inference from the inspector's report, on a view that the subsidence or erosion arose from the builder having not carried out the work in a proper and workmanlike manner. It is therefore not surprising that, as the builder contends, there was no evidence that the work done in 1997 was faulty or unsatisfactory, but only that it did not solve the original problem.
59 Further, for the reasons given, the Tribunal holds that there was an obligation on the builder to stabilise the land when the units were built in
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- 1991 or 1992. If the builder intended to challenge that issue, it would have been necessary for it to have contested that matter in the review before the Disputes Tribunal of the Registrar's Order to Remedy.
60 The issues for determination are therefore as follows.
1) Was the claim statute barred pursuant to s 12A(1aa)?
2) Is the order made on 15 April 2005 defective for any of the following reasons?
(a) The order is not to remedy building work but an order to prepare a plan to stabilise and restore the ground.
(b) The order requires a remedy that goes beyond the scope of the original building work.
(c) The Disputes Tribunal had no jurisdiction to reopen the 1996 complaint other than by the exercise of the power expressed in s 12A(4a).
Was a reconsideration of the 1992 complaint statute barred pursuant to s 12A(1aa)?
62 Section 12A(1aa) provides that the Disputes Tribunal shall not have power to make an order under this section in respect of any building work following a complaint in respect of that work, unless such complaint is made before the expiration of six years from the time when the building work was completed; for the purposes of this subsection, building work is completed when the building to which the work relates becomes fit for occupation in a free and uninterrupted manner.
63 In the Tribunal's view, the above subsection operates to deal with a complaint made after building work has been completed. Once a complaint has been made within the above time frame, the Disputes Tribunal has power under s 12A to either make an Order to Remedy unsatisfactory building work, or building work that has not been carried out in a proper and workmanlike manner (other than its being faulty or unsatisfactory) or to order payment of the cost of remedying the building work, or, in the case of building work that has not been carried out in a proper and workmanlike manner (other than it being faulty or unsatisfactory), to order compensation. Under subsection 12A(4a), if the
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- Disputes Tribunal is satisfied that an Order to Remedy building work has not been complied with, or has been complied with in part only, the Disputes Tribunal may revoke the Order to Remedy and make an Order to Pay in accordance with the above.
64 In the Tribunal's view, subsection 12A(1aa) does not operate in any way to impose a time limit in relation to the Disputes Tribunal's above processes, subsequent to the lodging of a complaint.
Does the 2005 order go beyond the scope of the original building work?
65 If this issue is intended to raise a contention that there was no original obligation to stabilise the soil, that contention is rejected. It is rejected because the evidence of Mr Stati, a director of the builder, establishes that the filling of the site was carried out to enable the footings to be constructed more easily. It constituted part of the building work carried out by the builder, and to leave the fill in an unstabilised state cannot constitute the carrying out of building work in a proper and workmanlike manner.
66 In any event, the Tribunal does not consider that it is open to the builder to advance this contention. In the Tribunal's view, an Order to Remedy made under s 12A, when made by the Disputes Tribunal, or affirmed by it, is a final order which gives right to review proceedings pursuant to s 41 of the BR Act. It is final, because in order to make such an order, there must be a final determination as to who carried out the building work and that the building work is faulty or unsatisfactory, in either of the senses referred to in subsections 12A(1) or 12A(1a). Neither of those issues can be reopened in the event that an application is made pursuant to subsection (4a) to convert the Order to Remedy into an Order to Pay. Accordingly, unless and until the Order to Remedy is revoked and substituted with an Order to Pay, it constitutes a final judgment within the context of proceedings under the BR Act, although the operation of s 12A(6) may impact upon an attempt to establish a plea of res judicata in subsequent and related court proceedings. It is sufficient to find that, in relation to proceedings under the BR Act, once an Order to Remedy has been made by the Disputes Tribunal, whether that power is exercised by the Registrar or the Disputes Tribunal, that order determines all of the elements necessary to found its issue, subject only to the prescribed review rights.
67 If the contention is that the Order to Remedy goes beyond the scope of the original building work because it requires the applicant to prepare a
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- plan to stabilise and restore the ground, that issue will become subsumed by the last remaining issue, and will be dealt with further below.
Does the Disputes Tribunal have the jurisdiction to reopen the 1996 complaint other than in terms of s 12A(4a)?
68 The scheme under which the Registrar has power to exercise the jurisdiction of the Disputes Tribunal to issue an Order to Remedy has been set out above. As already stated, such an Order to Remedy is open to review by the Disputes Tribunal pursuant to s 33A of the BR Act. Pursuant to subsection 33A(3), in exercising that review, the Disputes Tribunal may confirm, vary or quash the decision or order.
69 If the Disputes Tribunal itself issues an Order to Remedy, the decision to do so is subject to review pursuant to s 41 of the BR Act. Pursuant to s 29 of the SAT Act, this Tribunal on review may affirm, vary or set aside the decision under review.
70 The above are the only statutory powers granted to vary an Order to Remedy, and consequently, it can be said that the decision of the Disputes Tribunal to vary the Order to Remedy and recast it in the form which it did is attended with sufficient doubt to justify the grant of leave subject to being satisfied that a substantial injustice would be done if the decision was left to stand. The Tribunal, of course, expresses no final view on the merits of this issue. The owners have contended that it was open to the Disputes Tribunal to make the order, which it did in April 2005, pursuant to the liberty to apply provision which was incorporated in the Order to Remedy. That, on the above conclusions, is a matter to be taken into account on final review, because the Tribunal is satisfied that there would be a substantial injustice if a builder were to be compelled to comply with an order which the Disputes Tribunal did not have jurisdiction to make.
71 The builder's submissions also challenge the April 2005 order on the basis that, by requiring the builder to prepare an engineering plan to stabilise and restore the ground, the order is not an Order to Remedy building work. In effect, the parties, by their opposing submissions, put in issue the permissible content of, and procedures applying to, an Order to Remedy. It is desirable that the terms of leave be wide enough to allow this issue to be fully ventilated. This should include the reach of the April 2005 order, as framed. In the builder's oral submissions, it raised that the original Order to Remedy had applied only to Units 1, 3 and 4, and that impacts upon the manner in which the April 2005 order could be framed. It may be in practical terms that no adequate remedial work could be undertaken on any of the individual units without addressing the entire
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- boundary, but whether that is so depends on building practice and engineering issues. If the builder's contentions are correct, the order should not be framed in terms which obliges that course to be followed.
Conclusion and orders
72 As already observed, the builder's Statement of Issues, Facts and Contentions and submissions have gone beyond the proposed amended grounds of review, which the Tribunal will amend, as the matter has been conducted as if the amendment had been granted.
73 It follows from the above findings that none of grounds 1, 2 and 3 of the proposed amended grounds of review is made out. As stated above, ground 4 is not pursued.
74 The outcome in respect of ground 5 is less clear because of the way in which the ground is framed. The submissions made in relation to the permissible content of an Order to Remedy are capable of falling under this ground. But that is not clear, because there were a range of submissions in relation to the permissible procedures applying to the issue of an Order to Remedy, which were argued, without objection, and in relation to which, for the above reasons, leave should be granted. If ground 5 was intended to relate to a new 2002 complaint (that is, the letter dated 19 November 2002), then the ground fails because the Tribunal has held that the letter did not constitute a new complaint and gave rise to the relisting of the 1996 complaint for further determination (option A). Because of this uncertainty and the need for the application to be amended to reflect grounds covering the extent of the submissions made, the appropriate course is for all of the proposed amended grounds of review to be dismissed. Leave can then be granted in accordance with the above findings.
75 The matter will be set down for a directions hearing in order to determine the most appropriate course to be followed in relation to the review on the grounds on which the leave to review will be limited. Pursuant to s 27 of the SAT Act, the purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review. Accordingly, if the builder's contentions in relation to the limitation placed upon the Disputes Tribunal under s 12A(4a) of the BR Act are upheld, subject to the submissions of the parties, this Tribunal would have to determine whether the Order to Remedy, as affirmed in 1997, should be left to stand, with the only course then open to the owners being to cause disciplinary proceedings to be taken for alleged noncompliance, or whether, instead, the Order to Remedy should be
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- revoked and an Order to Pay issued. As this issue will affect the evidence to be given at the review hearing, it is a matter which the parties should be in a position to address at the directions hearing.
76 The Tribunal accordingly makes the following orders.
1. The application is amended in accordance with the proposed amended grounds of review set out in the applicant's interim application lodged on 23 February 2006.
2. The application is further amended by adding the following grounds of review:
"6. The applicant was denied procedural fairness because it was not informed of the case which it had to meet.
7. The Tribunal lacked jurisdiction to vary the Order to Remedy other than in accordance with s 12A(4a) of the Builders' Registration Act 1939 (WA)".
3. The applicant is granted leave to review the decision of the Disputes Tribunal made on 15 April 2005 under the amended ground 7 above only, and the application for leave is dismissed in respect of grounds 1 – 6 inclusive.
I certify that this and the preceding [76] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR C RAYMOND, SENIOR MEMBER
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