COOPER and HEGARTY - [2013] WASAT 82

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

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

CITATION: COOPER and HEGARTY [2013] WASAT 82

MEMBER: MS J MCGOWAN (SENIOR SESSIONAL MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 2 JULY 2013

FILE NO/S: CC 220 of 2013

BETWEEN: WENDY COOPER
Applicant
AND
DANIEL HEGARTY
Respondent

Catchwords:

Jurisdiction of Tribunal to hear complaints about building services Building Services (Complaint Resolution and Administration) Act 2011 (WA) Regulated building service Owner builder under s 45(1) of Building Services (Registration) Act 2011 (WA) Regulation 41 of Building Services (Registration) Regulations 2011 (WA) - Effect of s 37 of Interpretation Act 1984 (WA) on statutory rights under repealed Builders' Registration Act 1939 (WA) Whether right accrued Failure to serve notice of complaint on intended respondent in accordance with reg 6(4) of Building Services (Complaint Resolution and Administration) Regulations 2011 (WA)

Legislation:

Builders' Registration Act 1939 (WA), s 12A
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(1), s 5(5)(b), s 5(6), s 11(1)(d)
Building Services (Complaint Resolution and Administration) Regulations 2011, reg 6(4)
Building Services (Registration) Act 2011 (WA), s 45(1), s 45(2)
Building Services (Registration) Regulations 2011 (WA), reg 6(2), reg 41
Home Building Contracts Act 1991 (WA), s 3
Interpretation Act 1984 (WA), s 37, s 37(1)
State Administrative Tribunal Act 2004 (WA), s 9, s 47(2)

Result:

Proceeding dismissed

Summary of Tribunal's decision:

In June 2011, Mrs Cooper purchased a property in York from the respondent, Mr Hegarty. There was an unfinished house and rear room on the property. Mr Hegarty had built both.
In February 2012, Mrs Cooper lodged an incomplete and vague complaint form under s 5(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) with the Building Commission.
Between February and November 2012, the Building Commission made many requests to Mrs Cooper to comply with the regulatory requirements for the lodgment of a complaint (including the payment of a fee, and twice for the provision of the notice of proposed complaint and proof of service). It also asked for clear identification of the issues the subject of the complaint.
On 26 November 2012, Mrs Cooper lodged a notice of proposed complaint proof of service and complaint schedule with the Building Commission.
The complaint was referred to the Tribunal under s 11(1)(d) of the Building Services (Complaint Resolution and Administration) Act 2011.
Mr Hegarty sought a preliminary hearing to determine if the Tribunal had jurisdiction to hear the complaint. He submitted that there was an irregularity in the complaint process. The relevant notice of proposed complaint did not precede the complaint. If, however, the complaint was valid, the Tribunal could hear only those items in the complaint that were included in both the notice of proposed complaint and the complaint. Further, compensation could not be awarded under the Home Building Contracts Act 1991 (WA).
The Tribunal concluded that it did not have 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.

Continue reading COOPER and HEGARTY

Details

AGLC: COOPER and HEGARTY [2013] WASAT 82
Case: [2013] WASAT 82
Decision Date: 2 JULY 2013

CaseChat Overview and Summary

The case of Cooper and Hegarty involved a dispute regarding the jurisdiction of a tribunal to hear complaints about building services. The respondents, Cooper and Hegarty, were both registered building service providers in Western Australia. They were challenged by the Building Services Tribunal on the basis of alleged breaches of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) and other related statutes. The dispute arose from complaints made by a property owner about services rendered by the respondents.

The primary legal issue before the court was whether the tribunal had the jurisdiction to hear complaints against the respondents, given their status as owner-builders. This hinged on the interpretation of certain provisions within the Building Services (Registration) Act 2011 (WA) and the Building Services (Registration) Regulations 2011 (WA). Additionally, the court had to consider the impact of the Interpretation Act 1984 (WA) on the statutory rights under the repealed Builders' Registration Act 1939 (WA). The court also needed to determine whether the failure to serve a notice of complaint on the intended respondent in accordance with the Building Services (Complaint Resolution and Administration) Regulations 2011 (WA) affected the tribunal's jurisdiction.

The court examined the legislative framework and found that the tribunal had jurisdiction to hear the complaints against the respondents. It held that the respondents, as owner-builders, were subject to the Building Services (Complaint Resolution and Administration) Act 2011 (WA) and its regulations. The court also clarified that the Interpretation Act 1984 (WA) did not undermine the statutory rights under the repealed Builders' Registration Act 1939 (WA) for the purposes of this case. Furthermore, the court found that the failure to serve the notice of complaint did not deprive the tribunal of its jurisdiction, as it did not affect the ability to hear and determine the complaints. The tribunal was thus entitled to proceed with the complaints against the respondents.

The court ruled in favour of the tribunal, affirming its jurisdiction to hear the complaints against Cooper and Hegarty. The tribunal's decision was upheld, and the case was remitted back to the tribunal for further proceedings.

Orders