COMMODORE HOMES (WA) PTY LTD and DEEGAN & ANOR [2007] WASAT 45

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2007] WASAT 45
Act:	BUILDERS' REGISTRATION ACT 1939 (WA)
Case No:	CC:86/2007	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	MR C RAYMOND (SENIOR MEMBER)	Delivered:	18/02/07
No of pages:	9	Judgment Part:	1 of 1
Result:	Application for leave to review granted Application for review upheld
Category:	A
PDF Version

Parties:	COMMODORE HOMES (WA) PTY LTD MICHAEL DEEGAN LINDA SENGSOURINHO
Catchwords:	Builders' Registration Act 1939 (WA) Application for leave and review of decision of Disputes Tribunal heard together Effect of Disputes Tribunal not following previous decision of State Administrative Tribunal
Legislation:	Builders' Registration Act 1939 (WA), s 41, s 42 Home Building Contracts Act 1991 (WA) State Administrative Tribunal Act 2004 (WA), s 27
Case References:	BGC Construction and Vagg & Anor [2006] WASAT 367 BGC Residential Pty Ltd and Parker [2006] WASAT 281 Electric & Musical Industries Ltd v Lissen [1938] 4 AER 221 Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 Re Sassoon (1933) 1 Chancery 858
Orders	On the application determined by Senior Member Clive Raymond on 19 February 2007, it is ordered that:,1. Leave is granted to review the decision of the Building Disputes Tribunal made on 22 December 2006.,2. The application for review is granted and the decision under review is set aside.,3. The Tribunal substitutes its own decision for the decision under review and orders that the applicant do pay the respondents the sum of $3210.,4. The Executive Officer of the Tribunal is directed to provide a copy of the reasons for decision in this matter to the Registrar of the Building Disputes Tribunal.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : BUILDERS' REGISTRATION ACT 1939 (WA) CITATION : COMMODORE HOMES (WA) PTY LTD and DEEGAN & ANOR [2007] WASAT 45 MEMBER : MR C RAYMOND (SENIOR MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 19 FEBRUARY 2007 FILE NO/S : CC 86 of 2007 BETWEEN : COMMODORE HOMES (WA) PTY LTD

Applicant

AND

MICHAEL DEEGAN

1st Respondent

LINDA SENGSOURINHO

2nd Respondent

Catchwords:

Builders' Registration Act 1939 (WA) - Application for leave and review of decision of Disputes Tribunal heard together - Effect of Disputes Tribunal not following previous decision of State Administrative Tribunal

Legislation:

Builders' Registration Act 1939 (WA), s 41, s 42

Home Building Contracts Act 1991 (WA)

(Page 2)

State Administrative Tribunal Act 2004 (WA), s 27

Result:

Application for leave to review granted

Application for review upheld

Category: A

Representation:

Counsel:

Applicant : Mr SD Pentony

1st Respondent : Self-represented

2nd Respondent : Self-represented

Solicitors:

Applicant : Hotchkin Hanley

1st Respondent : Self-represented

2nd Respondent : Self-represented

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

BGC Construction and Vagg & Anor [2006] WASAT 367
BGC Residential Pty Ltd and Parker [2006] WASAT 281
Electric & Musical Industries Ltd v Lissen [1938] 4 AER 221
Re Drake and Minister for Immigration and Ethnic Affairs (No…

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.

Keep reading for free

Create a free CaseChat account to read Commodore Homes (WA) Pty Ltd and Deegan & Anor and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] WASAT 45
Decision Date: 19 FEBRUARY 2007

CaseChat Overview and Summary

The dispute between Commodore Homes (WA) Pty Ltd and Deegan & Anor was brought before the court by the former, who sought leave and a review of the decision made by the Disputes Tribunal. The crux of the matter involved a disagreement regarding the interpretation and application of the Builders' Registration Act 1939 (WA). The primary concern was whether the Disputes Tribunal had correctly followed a previous decision rendered by the State Administrative Tribunal.

The central legal issue that the court needed to address was whether the Disputes Tribunal had erred in not adhering to the precedent set by the State Administrative Tribunal. Specifically, the court had to determine if the Tribunal's failure to follow this precedent was a ground for review under the applicable legislation. The court also had to consider whether the Tribunal had misapplied the law or acted beyond its jurisdiction in reaching its decision.

The court found that the Disputes Tribunal had not properly followed the precedent set by the State Administrative Tribunal, leading to an incorrect application of the law. The court held that this constituted an error in law, providing a valid ground for review. Consequently, the court granted the application for review, set aside the Tribunal's decision, and substituted its own decision in its place. The court ordered Commodore Homes (WA) Pty Ltd to pay Deegan & Anor the sum of $3210. Additionally, the Executive Officer of the Tribunal was directed to provide a copy of the reasons for this decision to the Registrar of the Building Disputes Tribunal.

Orders

Orders of the court

On the application determined by Senior Member Clive Raymond on 19 February 2007, it is ordered that: 1. Leave is granted to review the decision of the Building Disputes Tribunal made on 22 December 2006. 2. The application for review is granted and the decision under review is set aside. 3. The Tribunal substitutes its own decision for the decision under review and orders that the applicant do pay the respondents the sum of $3210. 4. The Executive Officer of the Tribunal is directed to provide a copy of the reasons for decision in this matter to the Registrar of the Building Disputes Tribunal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.