D'AMBROSIA and DEMARTE
[2014] WASAT 89
•17 JULY 2014
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)
CITATION: D'AMBROSIA and DEMARTE [2014] WASAT 89
MEMBER: MS L WARD (MEMBER)
HEARD: 3 JULY 2014
DELIVERED : 4 JULY 2014
PUBLISHED : 17 JULY 2014
FILE NO/S: CC 592 of 2014
BETWEEN: DOMENIC D'AMBROSIA
Applicant
AND
DOMENIC DEMARTE
MARIA DEMARTE
Respondents
Catchwords:
Application to stay Building Remedy Order pending review - Applicable principles - Public interest considerations - No suggestion application for review would be nugatory - Relevance of delay in making stay application - Relevance of advice given by previous lawyers
Legislation:
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5, s 5(2), s 37, s 57(1)(c)
Civil Judgments Enforcement Act 2004 (WA), s 5, s 15
State Administrative Tribunal Act 2004 (WA), s 25, s 25(1), s 25(4)
Result:
Application for stay refused
Summary of Tribunal's decision:
The application for a stay of the Building Remedy Order was refused for several reasons. The reasons for refusal included that there was nothing to suggest that the review would be nugatory if the applicant complied with the Building Remedy Order. Further, the advice given by the applicant's previous lawyers was not a relevant public interest consideration. The delay in making the stay application was considered to be a relevant factor. This decision was delivered orally on 4 July 2014. These reasons have been edited and citations added.
Category: B
Representation:
Counsel:
Applicant: Mr S Hicks
Respondents : In person
Solicitors:
Applicant: Lawfield Legal Practice
Respondents : In person
Case(s) referred to in decision(s):
Croney v Nand [1999] 2 Qd R 342
Federal Commissioner of Taxation v Myer Emporium Ltd (No 1) (1986) 160 CLR 220
Phoenix Timber Products trading as Vintage Hardwoods and Skinner [2005] WASAT 315
Waldron and Afra Constructions Pty Ltd [2013] WASAT 207
Wilson v Church (No 2) (1879) 12 ChD 454
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Mr Domenic D'Ambrosia (applicant) filed an interim application in the Tribunal on 30 June 2014. At that time, the applicant also filed written submissions in support of the application.
The applicant sought a stay of the Building Remedy Order (BRO) made by the Building Commission on 24 April 2014.
On 2 July 2014, the applicant's lawyer filed a declaration with annexures in support of the application.
On the afternoon of 3 July 2014, the Tribunal heard the application for the stay. The applicant's lawyer attended the hearing and Mr Domenic Demarte and Mrs Maria Demarte (respondents) attended in person. Both parties had the opportunity to make oral submissions to the Tribunal.
The respondents opposed the stay application.
Basis of the stay
The applicant sought the stay on the basis of either:
•a suspension order under s 15 of the Civil Judgments Enforcement Act 2004 (WA) (CJE Act); or
•an order for a stay under s 25 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
At the hearing of the stay application, the applicant did not press seeking a suspension order under the CJE Act once s 5 of that Act was brought to his attention. In the Tribunal's view, the CJE Act does not apply to the stay application due to the operation of s 5 of the CJE Act. The CJE Act only applies to civil judgments given by the Supreme Court, District Court or Magistrates Court.
Accordingly, the stay application will be considered under s 25 of the SAT Act only.
Chronology
Before considering the parties' submissions, based on the documents before the Tribunal, the following dates and background information are relevant to the stay application, namely:
•In about May 2013, the applicant commenced removal of a tiled roof and construction of the respondents' tin roof on their established home in North Perth. The quote was in the amount of $42,130.
•Sometime in July 2013, work stopped on site prior to completion.
•On 2 July 2013, the respondents obtained an independent building report.
•By 6 August 2013, $22,000 had been paid by the respondents to the applicant for the work done to date.
•On 20 September 2013, the applicant commenced proceedings for the outstanding contractual amount in the Magistrates Court.
•On 11 November 2013, the Building Commission accepted a complaint from the respondents regarding the roofing and associated work which they claimed was defective in several respects.
•On 26 November 2013, the applicant's former lawyer, MGB Legal, responded to the complaint.
•On 26 November 2013, the Building Commission emailed MGB Legal and asked if the applicant intended to withdraw his Magistrates Court action and lodge a complaint with the Building Commission.
•On 2 December 2013, MGB Legal advised the applicant regarding a 'payment dispute' and referred to a 28 day time limit.
•On 19 December 2013, MGB Legal emailed the Building Commission and stated, 'my client is under the impression that the only recourse available to him in terms of a complaint to the Building Commission (payment dispute) is well out of time … he has little choice but to continue his Magistrates claim'.
•On 19 December 2013, the Building Commission emailed MGB Legal and stated, 'No this is incorrect. For home building work which falls under the Home Building Contract Act 1991 your client has 3 years in which to make a complaint to the Building Commission. Therefore his complaint is still within the appropriate timeframe'.
•On 11 March 2014, the Building Commission sent both parties a proposed BRO for comment. The proposed BRO included costings of the work required in the total amount of $35,793.30.
•On 25 March 2014, MGB Legal responded to the proposed BRO and queried the cost estimates. MGB Legal also noted that the Magistrates Court proceedings remains on foot at this stage.
•Ultimately, the BRO issued on 24 April 2014 in the amount of $35,793.30. The BRO was made by the Building Commissioner under s 37 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act).
•The BRO was due to be paid by the applicant within 14 days of the date of the BRO, which the Tribunal calculates to require payment by the applicant by 8 May 2014.
•On 5 May 2014, the application for review of the BRO was lodged in the Tribunal by the applicant's new lawyer, Lawfield Legal Practice (Lawfield). The Tribunal has jurisdiction to review a BRO made by the Building Commissioner under s 57(1)(c) of the BSCRA Act.
•On 13 June 2014, the Bailiff's Office informed the applicant's lawyer that it was enforcing a property seizure and sale against the applicant for the BRO amount.
•On 24 June 2014, the applicant's lawyer wrote to the respondents. The applicant offered to pay off the BRO in instalments pending the outcome of the Tribunal application. The applicant's lawyer stated that if the instalment proposal was not acceptable, then a suspension order would be sought in the Tribunal, based on the 'special circumstance' that the applicant's previous lawyer allegedly did not advise the applicant properly or claim a set off of approximately $22,130 under the contract.
General principles regarding a stay under s 25 of the SAT Act
The general principles regarding a stay under s 25 of the SAT Act are summarised below.
The commencement of a proceeding for the review of a decision does not affect the operation of the decision: s 25(1) of the SAT Act.
The starting point is that a successful party should be entitled to the fruits of his or her judgment; so there is an onus on the applicant for a stay of a decision to demonstrate a proper basis for a stay.
The discretion to stay execution of a decision pending an appeal is unfettered. The Tribunal needs to be satisfied that there is an arguable case for an appeal to ensure that the appeal has not been lodged simply to delay execution: see Croney v Nand[1999] 2 Qd R 342 at 348 and 349.
Appropriate circumstances may exist if it is shown that if a stay of execution is not granted, the appeal may be nugatory: see Wilson v Church (No 2) (1879) 12 ChD 454 at 458, or that serious injury will result to the applicant unless a stay is granted. An appeal will be nugatory when, because of the respondent's financial state, there is no reasonable prospect of recovering money paid to him or her pursuant to the judgment. Appropriate circumstances are not limited to that situation and will exist whenever there is a real risk that it will not be possible for a successful applicant to be restored substantially to his or her former position: see Federal Commissioner of Taxation v Myer Emporium Ltd(No 1) (1986) 160 CLR 220 at 223.
The Tribunal has previously held that these general principles should also apply to an application for a stay of a reviewable decision under s 25 of the SAT Act: see Phoenix Timber Products trading as Vintage Hardwoods and Skinner [2005] WASAT 315 at [10] to [14].
Subsection 25(4) of the SAT Act states that the Tribunal may make an order staying the operation of a decision that is the subject of a proceeding for a review only if it considers that it is desirable to do so after taking into account:
(a)the interests of any persons whose interests may be affected by the order;
(b)any submission made by or on behalf of the decision‑maker; and
(c)the public interest.
Applicant's submissions as to why the stay ought to be granted
The applicant's submission is essentially that the stay should be granted for the two reasons set out below.
Firstly, the applicant claims that the previous lawyer's failure to advise him in relation to the possibility of a counterclaim before the Building Commission of approximately $22,130 under the contract makes it in the public interest to do so. It was contended that the alleged error by the applicant's previous lawyer makes it in the public interest to grant the stay.
Secondly, the applicant submits that the application for review of the BRO has reasonable prospects of success. The applicant submits that he has a reasonable prospect of establishing in the Tribunal that he is entitled to a set off of some amount of between about $13,000 and about $22,000 under the contract.
Respondents' submissions as to why the stay should not be granted
The respondents contend that the money from the BRO is needed to go towards the cost of rectifying the work done by the applicant on their roof.
The respondents also say that if the applicant's review of the BRO is ultimately successful then they have the capacity to repay the BRO amount.
Consideration by the Tribunal
Having considered the submissions and documents before the Tribunal, the Tribunal is of the view that the stay of the BRO should not be granted to the applicant. The reasons for this conclusion follow.
Firstly, the interests of the respondents will be affected adversely if the BRO is stayed. The Tribunal accepts that the funds from the BRO are required to go towards rectifying the applicant's defective work on the respondents' roof.
Importantly, there is no suggestion that the review of the BRO will be nugatory due to the respondents' financial state. The respondents indicated to the Tribunal that they have the capacity to repay the BRO amount should that be ultimately required by the Tribunal. The applicant did not challenge the respondents' ability to repay, if required, the amount owed under the BRO.
Secondly, the public interest in this case lies squarely with the respondents being entitled to the fruits of the BRO. The alleged mistakes or omissions of the applicant's previous lawyer have, in the words of the applicant's current lawyer in their letter to the respondents dated 24 June 2014, 'nothing to do with you'. Whether or not the applicant has an action in negligence against his former lawyer in another jurisdiction is not highly relevant to the public interest which applies in the circumstances currently before this Tribunal. This is because the applicant has the possibility of recourse against his previous lawyer in another forum, and of recovering damages for loss. The possibility of this separate action has absolutely no bearing on the respondents, and nor should it impact adversely on them.
Another public interest factor which militates against the granting of the stay is that the application has been sought at a relatively late stage in the proceedings. In this case, the interim application was made after the due date for payment of the BRO and after the Bailiff's Office had become involved. The Tribunal notes that the application for review was lodged before the payment under the BRO was due. Section 25(1) of the SAT Act makes it very clear that the lodging of an application for review does not 'affect the operation of the decision or prevent the taking of action to implement the decision'. While there is no time bar to lodging a stay application at any stage of the proceedings, the Tribunal considers that this is a relevant public interest factor in the circumstances of this case.
Another public interest factor which militates against the granting of the stay is that the prospects of success of the application for review of the BRO may not, at this interlocutory stage, be considered to be reasonable, although this may of course alter once evidence is before the Tribunal. Currently, the applicant's review of the BRO appears to focus on a right to set off amounts he says are owed under the contract. However, the applicant is yet to lodge a 'HBWC complaint' under s 5 of the BSCRA Act. While the applicant has maintained throughout the complaint resolution process that he has a right to a counterclaim or set off, he is to this day yet to lodge a complaint at the Building Commission. In this regard, the Tribunal distinguishes Waldron and Afra Constructions Pty Ltd [2013] WASAT 207 (Waldron), which was cited by the applicant for the proposition that the applicant is 'entitled to be paid a reasonable amount for that work and has a set off for the value of that work'. In the Tribunal's view, Waldron does not apply to the facts of this case, as they have been provided to the Tribunal. In Waldron, the owner had made a claim for defective work and, in addition, the builder had also made an application to the Building Commission, pursuant to s 5(2) of the BSCRA Act, for a breach of the contract by the applicants: see [6] of Waldron.
Further in this case, the decision‑maker, namely the Building Commissioner, did not make any submissions in relation to the stay.
Conclusion
In conclusion, taking into account the factors listed in s 25(4) of the SAT Act, the Tribunal is satisfied that effect must be given to the BRO and that the application for a stay should be dismissed.
The Tribunal notes for the record that these are interlocutory findings and not a final determination of the merits of the case. It remains open for the applicant to revisit the submissions made and to support those submissions with whatever further evidence he wishes to adduce.
Orders
Accordingly, the Tribunal orders that:
1.The applicant's interim application pursuant to s 25(2) of the State Administrative Tribunal Act 2004 (WA) is dismissed for the reasons given.
I certify that this and the preceding [31] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS L WARD, MEMBER
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