D'AMBROSIA and DEMARTE - [2014] WASAT 89

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…

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: [2014] WASAT 89
Decision Date: 17 JULY 2014

CaseChat Overview and Summary

The case before the court involved an application by D'Ambrosia and Demarte to stay a Building Remedy Order pending a review. The nature of the dispute was centred around the enforceability of a Building Remedy Order against them. The court that heard this case was the Supreme Court of Queensland. The applicants sought a stay of the Building Remedy Order pending a review, and the primary concern was whether the court should grant such a stay and what principles should be considered in determining this.

The legal issues the court had to decide included the applicable principles for granting a stay of a Building Remedy Order pending a review, the public interest considerations involved in such a decision, and whether the delay in making the stay application or the advice given by previous lawyers should impact the decision. The court had to weigh these factors to determine if the application for a stay should be granted.

The court considered the principles applicable to granting a stay, noting that there was no suggestion that an application for review would be futile. It also assessed the public interest considerations, which included the potential harm to the applicants if the stay was not granted. The court examined the relevance of the delay in making the stay application and the advice given by previous lawyers. Ultimately, the court determined that the application should be granted based on the evidence and arguments presented. The court found that the balance of convenience favoured granting the stay, and there was no significant public interest that outweighed the applicants' interests in having the order stayed pending the review.

The final orders of the court were that the Building Remedy Order was stayed pending the outcome of the review, with specific conditions attached to the stay to protect the interests of the other party. The applicants were required to provide certain undertakings and security as part of the conditions of the stay. This decision was based on a careful consideration of the applicable legal principles, public interest considerations, and the circumstances of the case.

Orders