Craig Carle Homes Pty Ltd v Mr & Mrs P & R Rushton - [2001] WADC 173

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: CRAIG CARLE HOMES PTY LTD -v- MR & MRS P & R RUSHTON & ORS [2001] WADC 173

CORAM: LA JACKSON DCJ

HEARD: 18 JULY 2001

DELIVERED : 27 JULY 2001

FILE NO/S: CIVO 63 of 2001

BETWEEN: CRAIG CARLE HOMES PTY LTD
Appellant
AND
MR & MRS P & R RUSHTON
First Respondent
MR & MRS C & K MILLS
Second Respondent
BD, BW & PE WHITTINGTON
Third Respondent
GA & JC AND AG & BE MACINNES
Fourth Respondent
MR AC AUSTIN
Fifth Respondent
MR & MRS DA & MP CHARLTON
Sixth Defendant
MR P DYSON & MS S WALKER
Seventh Respondent
MR T MCLERNON
Eighth Respondent
MR T MAGEE
Ninth Respondent

Catchwords:

Appeal from decision of the Building Disputes Committee - Decided on own facts

Legislation:

Builders' Registration Act 1939, s 12A(1), s 26, s 36(1)

District Court Rules, O 8

Result:

Appeal dismissed

Representation:

Counsel:

Appellant:     Ms N Epis
First Respondent           :     Ms L Horwood
Second Respondent       :     Ms L Horwood
Third Respondent         :     Ms L Horwood
Fourth Respondent        :     Ms L Horwood
Fifth Respondent          :     Ms L Horwood
Sixth Defendant            :     Ms L Horwood
Seventh Respondent      :     Ms L Horwood
Eighth Respondent        :     Ms L Horwood
Ninth Respondent         :     Ms L Horwood

Solicitors:

Appellant:     Phillips Fox
First Respondent           :     Godfrey Virtue & Co
Second Respondent       :     Godfrey Virtue & Co
Third Respondent         :     Godfrey Virtue & Co
Fourth Respondent        :     Godfrey Virtue & Co
Fifth Respondent          :     Godfrey Virtue & Co
Sixth Defendant            :     Godfrey Virtue & Co
Seventh Respondent      :     Godfrey Virtue & Co
Eighth Respondent        :     Godfrey Virtue & Co
Ninth Respondent         :     Godfrey Virtue & Co

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

Building Corp (WA) v Earnshaw (1999) 21 SR (WA) 102
Cardinal Constructions Pty Ltd v Argo (1996) 16 SR (WA) 344
Qantas Airways Pty Ltd v Gubbins (1992) 28 NSWLR 26
Wilson v Metaxas [1989] WAR 285
Wing Luck Foods v Lay Choo Lim [1989] WAR 358

Case(s) also cited:

Niemann v Electronic Industries Ltd [1978] VR 431
Warren v Coombes (1979) 142 CLR 531

LA JACKSON DCJ: This is an application for leave to appeal against a decision of the Building Disputes Committee (the "Committee") pursuant to s 41 of the Builders' Registration Act 1939 (the "Act").
I was asked to deal with both the application for leave and the appeal itself. That is a common and I think sensible practice as the application for leave requires some consideration of the merits of the case.
The dispute between the applicant (the builder) and the respondents (the owners) concerns a number of units built in Yallingup. The appeal concerns a number of particular issues with which I will deal specifically in due course.
The Committee is established by s 26 of the Act. It has a chair person and deputy chair persons who are legal practitioners. The Act establishes panels of persons representing the interests of consumers and of persons representing the interests of builders. At each sitting the Committee consists of a chair person and a representative of the builders and a representative of the consumers. It is therefore a committee which has, at least so far as the builder's representative is concerned, its own expertise. Section 36 of the Act provides:
"At all its sittings the Disputes Committee shall act according to equity, good conscience, and the substantial merits of the case and without regard to technicalities and legal forms, and shall not be bound by the rules of evidence but may inform itself on any matter in such manner as it thinks fit."
In Qantas Airways Pty Ltd v Gubbins (1992) 28 NSWLR 26, Gleeson CJ and Handley JA at 32 were discussing a tribunal acting under an Act containing similar provisions to s 36(1) They said:
"Whilst this discretion is not unfettered it is a wide one and the Tribunal will not err in law merely because it acts on evidence which would not be admissible in Court or because there is no legally admissible evidence to support any of its findings."
In my view the statutory intent behind the creation of the Tribunal is to provide "a body constituted to provide summary and speedy resolution of disputes". Building Corp (WA) v Earnshaw (1999) 21 SR (WA) 102, 107. It is, as I have already noted, a body which includes representatives of consumers and builders. Such representation creates expertise upon which the Committee is expected to act.
The fundamental power of the Committee arises from s 12A of the Act. Subsection (1) provides
"Where on complaint being made to it by any person, including the Board, the Disputes Committee is satisfied that any building work has not been carried out in a proper and workmanlike manner by reason that the building work is faulty or unsatisfactory the Disputes Committee may by order in writing served on the person who carried out the building work order him to ‑
(a)remedy the faulty or unsatisfactory building work within such reasonable time as is specified in the order; or
(b)pay to the owner of the building such costs of remedying the building work that is faulty or unsatisfactory as the Disputes Committee considers reasonable in which case any costs so ordered by the Disputes Committee constitute a debt to the owner and are recoverable by him in a court of competent jurisdiction."
In par (b) the Committee is empowered to order payment of such costs as the Committee "considers reasonable" In my view that expression gives to the Committee a discretion wider than merely to order payment of an amount to rectify unsatisfactory work. It does not, in my view, require the Committee to closely examine to minute detail the cost of rectification. It is sufficient for the Committee to use what might be termed a "broad brush" approach. To require it to be more precise would, in my opinion, be likely to stultify the nature of the jurisdiction intended to be exercised by the Committee. The Committee should act in a common sense way and to make a reasonable assessment of the cost of remedying unsatisfactory work. If when it does so it fails to "dot the i's and cross the t's" it will not necessarily have made an appealable error.
An appeal lies only by leave.
Leave to appeal requires a number of considerations. With respect to appeals from interlocutory orders under the Supreme Court Rules the Full Court said in Wilson v Metaxas [1989] WAR 285 that one of the objects was to reduce the number of appeals as much as possible. In my opinion that also applies to appeals from decisions of a Committee. In Wing Luck Foods v Lay Choo Lim [1989] WAR 358 the Full Court said the requirement for leave meant that leave should be granted only where the decision was wrong or at least attended with sufficient doubt to justify the granting of leave and in addition substantial injustice would be done by leaving the decision unreversed. See also Cardinal Constructions Pty Ltd v Argo (1996) 16 SR (WA) 344, 351.
At the commencement of the hearing the appellant sought to substitute a Notice of Appeal with some changes as to the particular units referred to. This was opposed by the respondents claiming it caught them by surprise. I do not accept that the respondents have in any way been prejudiced by the amendments to the Notice of Appeal and I would allow the substitution of the Notice of Appeal.
The purpose of requiring leave is to promptly dispose of what are apparently frivolous appeals and to limit the number of appeals heard by the Court. (Cardinal Constructions). This is a case in which I think leave should be granted. The issues raised by the Notice of Appeal appear not to be frivolous and appear to be arguable.
In this case the Committee made orders in favour of the owners of units in Yallingup. There were a number of defects which had been the subject of a rectification order. This was not complied with and the Committee made orders for payment in lieu of rectification. There were differing problems at various units but the Committee treated the matter on a global basis making the same allowance for each of the units rather than examining each one individually. This seems to me to be a practical manner in which the Committee should exercise its jurisdiction. Provided there is some basis upon which such a method of dealing with the matters is appropriate, it is sensible for the Committee exercising a public function to do so in a common sense way rather than being too hide bound to the minutia of detail.
In this case the Committee had evidence from a number of the owners of the units as to problems which had been experienced in various areas. It had evidence from a number of persons of varying degrees of qualification but, with its own expertise, I see no reason why the Committee should not be entitled to prefer the evidence which accorded with its own expert knowledge in the area. This is not a case like a court of law where evidence is required to justify the decision of the Committee. The Committee is entitled to inform itself as it thinks fit and provided a reasonable opportunity is given to the parties to argue the matter then I do not think it appropriate that the District Court should interfere.
There were four areas of specific complaint.

Tiling

The Committee allowed $2,000 for each unit with respect to rectification of tiling. The evidence with respect to each of the units was different but the evidence was that the problem was an ongoing one and the Committee allowed a sum of $2,000 each on the basis that the tiles in each would have to be replaced.
The Committee has apparently allowed for the re‑tiling of all of the units because of some uncertainty as to the state of the floor. It required the builder to provide an Engineer's Certificate within 21 days. That certificate was not, and I am informed, still has not been provided. The failure by the appellant to supply such a report could properly lead the Committee to the view that there is a significant risk of there being underlying problems with the floors requiring the complete re‑tiling of the units. This would assist in the Committee's determination as to a proper allowance with respect to tiling.
I was urged on behalf of the respondents to order the appellant to provide that Engineer's Report. I declined to do so. It seems to me such matter should properly be dealt with by the Committee if it is desired by the parties that it be. The proper course would be that the respondents should go back to the Committee and seek an order enforcing the provision of the Engineer's Report so that such a report would be before the Committee rather than this Court. The Committee is clearly the appropriate body to deal with such issues and I would be loathe to make an order requiring the District Court to consider such a report.
Whilst the allowance of $2,000 per unit might be a slightly generous approach by the Committee there is evidence to support it and I do not consider the decision should be interfered with.

General repairs

There were a number of items of a general nature which required rectification. Once again, rather than a close examination of each unit the Committee has adopted a broad brush approach. Again, it seems the result might be somewhat on the generous side but again I do not consider that the Committee is in error in dealing with the matter in the way it has. The appellant relies on the evidence of Mr Feigan, an architect, who assessed the general repairs required. However, his assessment was contrary to that of Mr Smith the building inspector. Clearly, the Committee has preferred the evidence of the inspector and made the assessment in a global way based upon that assessment. It seems to me that was open to the Committee and should not be interfered with.

Balustrades

The Committee allowed $500 each with respect to Units 14, 16 and 18. There was no dispute that the balustrades were defective but there was no evidence as to the cost of rectification. In my opinion the Committee does not need evidence to make an assessment as to the cost of rectification. The amounts assessed are quite modest and I would not alter them.

Noise attenuation

During the hearing of this appeal the respondents sought to cross‑appeal claiming an additional $2,600 for the cost of noise attenuation work. They sought to do so on the production of a report from a sound engineer which had not been before the Committee. To do that the respondents required leave to adduce fresh evidence and then leave to file a cross‑appeal out of time in accordance with O 8 of the District Court Rules.
In my opinion the fresh evidence should not be admitted. There was no reason why such a report could not have been obtained and have been available to the Committee at the time of the various hearings before it. In the absence of that report there is no evidence before me which would justify a cross‑appeal. Once again the report could have been obtained at a much earlier stage and could have been the subject of a cross‑appeal within the time prescribed by the Rules. I would not allow the cross‑appeal to be made.
The appellant strongly argues that the contract between the owners and the appellant did not include noise attenuation needed if the units were to be duplexes and to be capable of strata titling. The Shire of Busselton said they were not and that the standards to be adopted were those applicable to a single occupancy dwelling. However the Committee found that it was always the intention of the owners to have units to the standard of duplexes and that the builder was aware of that. That was a finding that was open to the Committee and should not be interfered with. The Committee allowed $1,000 per unit. It did so on the basis that $500 would be needed to make interconnecting doors soundproof and allowed an additional $500 for other noise attenuation work.
The Committee acting judicially is required to give reasons. It has done so even though the reasoning is not always clear. That makes the task of deciding whether to allow the appeal more difficult. However in my view the Court ought not to be too critical of the way in which the Committee does its work. It should only be in cases where no justification for the orders can be seen. While this may be a borderline case I am not persuaded that the appeal should be allowed.
For these reasons the appeal should be dismissed.