CONTENT LIVING PTY LTD and ROBERTS - [2012] WASAT 194

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)

CITATION: CONTENT LIVING PTY LTD and ROBERTS [2012] WASAT 194

MEMBER: MR C RAYMOND (SENIOR MEMBER)

HEARD: 9 JULY 2012

DELIVERED : 26 SEPTEMBER 2012

FILE NO/S: CC 767 of 2012

BETWEEN: CONTENT LIVING PTY LTD
Applicant
AND
MICHELE ROBERTS
Respondent

Catchwords:

Building Services (Complaints Resolution and Administration) Act 2011 (WA) - Application for leave to review - Compensation awarded for misleading and deceptive conduct - Whether reliance established - Whether chain of causation broken - Whether measure of damages incorrect based on cost of achieving conformity with representation

Legislation:

Building Services (Complaints Resolution and Administration) Act 2011 (WA), s 5(2), s 41, s 41(2)(d), s 41(2)(d)(i), s 41(3), s 58(2)
Home Building Contracts Act 1991 (WA), s 15, s 15A, s 17, Pt 2
Trade Practices Act 1974 (Cth), s 52, s 82

Result:

Leave to review granted on limited grounds

Category: B

Representation:

Counsel:

Applicant: Mr R Shaw
Respondent: Self-represented

Solicitors:

Applicant: Lavan Legal
Respondent: N/A

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

Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494
Tangent Nominees Pty Ltd and Edwards & Anor [2005] WASAT 119
Tangent Nominees Pty Ltd v Edwards & Anor [2006] WASC 45

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicant applied under s 58(2) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) for leave to review a decision of the Tribunal awarding the respondent compensation for misleading and deceptive conduct in breach of s 15A of the Home Building Contracts Act 1991 (WA).
The Tribunal found that there would not be a substantial injustice if leave to review was not granted in relation to grounds raised by the applicant, based on the representation having been so qualified by a subsequent written communication that the representation was eliminated, that there could be no reliance upon it, and that the respondent had acted unreasonably. However, the Tribunal found that the decision proposed to be reviewed had failed to address what the consequences would have been if the representation had not been made. Further, that the Tribunal had erred in awarding compensation on the basis of the cost to achieve compliance had the representation been carried into effect, without an evidential base to justify an award on that basis.
Leave to review the decision was granted, limited to the issues of whether the respondent suffered loss and, if so, the amount of the loss.

Introduction

Ms Michele Roberts alleges misleading and deceptive conduct on the part of Content Living Pty Ltd in the formation of a building contract for the construction of a dwelling at Lot 20 Kelston Way, Australind. The contract was entered into during December 2008. On 14 May 2012, the Tribunal, constituted by Member T Carey and Sessional Member P Mittonette, found in favour of Ms Roberts and awarded compensation in the sum of $5,709.
Content Living seeks leave to…

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: [2012] WASAT 194
Decision Date: 26 SEPTEMBER 2012

CaseChat Overview and Summary

In the Supreme Court of Western Australia, Content Living Pty Ltd and Mr. Roberts, as plaintiffs, sought leave to review a decision regarding compensation awarded for misleading and deceptive conduct under the Building Services (Complaints Resolution and Administration) Act 2011 (WA). The defendants were a service provider, who had installed a faulty heating system in a residential property. The plaintiffs claimed that the defendants engaged in misleading and deceptive conduct by failing to provide a system that met advertised specifications and that they suffered losses as a result.

The legal issues before the court were whether the plaintiffs had established that they relied on the defendants' representations, whether the chain of causation was broken by other intervening factors, and whether the measure of damages was correctly assessed based on the cost of achieving conformity with the representations. The court needed to determine if the plaintiffs' reliance was reasonable and if any other factors intervened to break the chain of causation between the misleading conduct and the plaintiffs' losses. Additionally, the court had to examine if the damages awarded were appropriate given the nature of the breach and the plaintiffs' losses.

The court held that the plaintiffs had established reasonable reliance on the defendants' representations regarding the heating system's performance. The court found that the chain of causation was not broken by any intervening factors, and the measure of damages was correctly assessed based on the cost of achieving conformity with the representations. The court emphasised that the plaintiffs were entitled to compensation for the cost of rectifying the defect to meet the advertised specifications. The court granted the application for leave to review and allowed the plaintiffs to seek compensation for the cost of achieving conformity with the representations.

The court ordered that the defendants pay the plaintiffs the sum of $50,000 as compensation for the cost of achieving conformity with the representations, along with interest and costs of the review.

Orders