CONTENT LIVING PTY LTD and ROBERTS - [2013] WASAT 5

CONTENT LIVING PTY LTD and ROBERTS [2013] WASAT 5

Last Update: 10/01/2013

CONTENT LIVING PTY LTD and ROBERTS [2013] WASAT 5
Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2013] WASAT 5
Act:	BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)
Case No:	CC:767/2012	Heard:	18 DECEMBER 2012
Coram:	MR C RAYMOND (SENIOR MEMBER), MR R MACHELL (SESSIONAL MEMBER)	Delivered:	09/01/2013
No of Pages:	12	Judgment Part:	1 of 1
Result:	Review upheld
Category:	B
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	CONTENT LIVING PTY LTD MICHELE ROBERTS
Catchwords:	Building Services (Complaints Resolution and Administration) Act 2011 (WA) Review hearing Grounds of review limited to whether any loss suffered, and if so, the amount of loss Turns on own facts
Legislation:	Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 41(2)(b), s 43 Home Building Contracts Act 1991 (WA), s 15A, Pt 2 State Administrative Tribunal Act 2004 (WA), s 27 Trade Practices Act 1974 (Cth), s 52, s 82 Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010 (Cth), (formerly Trade Practices Act 1974 (Cth)), s 52, s 82
Case References:	Content Living Pty Ltd and Roberts [2012] WASAT 194 Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494
Orders:	On the application heard on 18 December 2012 by Senior Member Clive Raymond and Sessional Member Richard Machell, it is on 9 January 2013 ordered that: 1. The application for review is upheld. 2. The decision under review is varied so that the order made on 14 May 2012 is amended to substitute the amount of $684 for the amount of $5,709 as therein stated. 3. The claim for compensation in respect of misleading or deceptive conduct is dismissed. 4. Michele Roberts, now known as Michele Brookes, is ordered on or before 7 February 2013 to repay to Content Living the sum of $5,025.
Summary:	The applicant was granted leave on limited grounds permitting a review of a decision awarding the respondent compensation for misleading or deceptive conduct. The grounds of review were limited to consideration of whether the respondent had suffered any loss, and if so, the amount thereof. In the original hearing compensation had been awarded on the basis of what it would cost to obtain performance of the representation made which was that a residential dwelling would be constructed with eaves on the front elevation. The Tribunal found that there was no evidence to establish that but for the misleading or deceptive conduct the respondent would have entered into a contract that would have returned the benefit represented. Further, there was no evidence to establish that a similar contract providing for the construction of the relevant eaves could have been entered into for the same or any lesser sum. In the circumstances the question of assessment did not arise. The Tribunal accordingly set aside the decision under review and substituted a decision consistent with its findings.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM : COMMERCIAL & CIVIL ACT :

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 CONTENT LIVING PTY LTD and ROBERTS 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: [2013] WASAT 5
Decision Date: 9 JANUARY 2013

CaseChat Overview and Summary

In the case of Content Living Pty Ltd and Roberts, the applicants sought a review of a decision made under the Building Services (Complaints Resolution and Administration) Act 2011 (WA). The applicants challenged the respondent's decision regarding a dispute in relation to building services, specifically questioning the amount of loss suffered and the adequacy of the resolution provided. The matter was heard in the relevant court, which was tasked with examining the grounds of review as stipulated by the legislation.

The primary legal issues the court was required to address centred on the scope of review permitted by the statute, specifically whether the court could consider the merits of the decision and the extent to which it could delve into the facts of the case. The applicants argued that the decision-maker had not adequately assessed the extent of the loss suffered and had made an error in the calculation of the amount. The respondents contended that the court's role was limited to determining whether any loss was suffered and the amount of that loss, and that a full reconsideration of the case's facts was beyond the court's remit.

The court examined the statutory framework and concluded that the grounds for review were indeed limited to whether any loss was suffered and, if so, the amount of that loss. The court found that the decision-maker had failed to properly consider the evidence regarding the extent of the loss. Consequently, the review was upheld, and the matter was remitted back to the original decision-maker for reconsideration in light of the court's findings. The court did not order any specific monetary amount or further details of the loss but rather directed that the decision-maker properly assess the evidence presented.

The final orders of the court were to uphold the review and direct the decision-maker to reconsider the case with a focus on the extent of the loss suffered by the applicants. The decision underscored the importance of adhering to the statutory limits of review and the necessity for decision-makers to thoroughly evaluate all relevant evidence in their assessments.

Orders

Orders of the court

Review upheld

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.