DEFENDI and LETHBRIDGE GLEN PTY LTD
[2010] WASAT 13
•1 FEBRUARY 2010
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: BUILDERS' REGISTRATION ACT 1939 (WA)
CITATION: DEFENDI and LETHBRIDGE GLEN PTY LTD [2010] WASAT 13
MEMBER: MR T CAREY (MEMBER)
HEARD: 14 DECEMBER 2009
DELIVERED : 1 FEBRUARY 2010
FILE NO/S: CC 1373 of 2009
BETWEEN: SILVANO DEFENDI
Applicant
AND
LETHBRIDGE GLEN PTY LTD
Respondent
Catchwords:
Building disputes Application for leave to review decision of Building Disputes Tribunal Rubber matting applied to concrete substrate in construction of tennis court Whether within Building Dispute Tribunal's jurisdiction Dismissal of workmanship claim based on failure to prove cause of problem attributable to respondent Significance of similar failure by respondent to prove alternative cause Dismissal of contractual claims based on abandonment and failure to perform contract Relationship between workmanship and contractual claims
Legislation:
Builders' Registration Act 1939 (WA), s 3(1a), s 12A, s 12A(1), s 41
Home Building Contracts Act 1991 (WA), s 3(1), s 17, s 17(1)(a)(i)
Result:
Leave to review refused
Application dismissed
Category: B
Representation:
Counsel:
Applicant: Ms M Fifield
Respondent: Self-represented
Solicitors:
Applicant: Avon Legal
Respondent: Self-represented
Case(s) referred to in decision(s):
Tangent Nominees Pty Ltd and Edwards [2005] WASAT 19
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant sought leave to review the dismissal of complaints to the Building Disputes Tribunal arising from the failure of a rubber matting surface to a tennis court laid by the respondent. The rubber matting was supplied by the applicant, having been imported from Italy some years earlier, and was laid upon an existing concrete substrate.
The Building Disputes Tribunal dismissed workmanship complaints made by the applicant on the basis of a perceived failure on the applicant's part to provide evidence establishing, as the cause of the failure, some aspect of the work performed by the respondent, as opposed to a number of other potential causes. The State Administrative Tribunal found this conclusion to have been open based on the evidence before the Building Disputes Tribunal.
The Building Disputes Tribunal rejected the applicant's contractual complaints, in part, because the applicant was unable to show that the respondent was responsible for the failure of the material when applied to the substrate, which was the reason for it being unable to complete the contract. The State Administrative Tribunal regarded the applicant's contention on the contractual claim as tantamount to requiring that a contractual claim succeed wherever the building contract is not performed, a proposition it rejected, having regard to the statutory regimes governing simultaneous workmanship and contractual claims.
Leave to review the decision of the Building Disputes Tribunal was refused and the application was dismissed.
Introduction
This is an application for leave pursuant to s 41 of the Builders' Registration Act 1939 (WA) (BR Act) to review a decision of the Building Disputes Tribunal (BDT) made on 12 August 2009 dismissing the applicant's workmanship and contractual complaints. The complaints concerned the manner of performance by the respondent of its contractual obligations to apply rubber matting to an existing concrete substrate for the purpose of constructing a tennis court at the applicant's premises.
The rubber matting was supplied by the applicant and originated from Italy. When problems appeared in the course of attempting to lay the matting, negotiations for a solution occurred. However, in the end result, the parties were unable to agree on the way forward, the full extent of the rubber matting was not laid, and the applicant made his complaints to the BDT.
The complaint of faulty and unsatisfactory workmanship included allegations that the respondent had failed to properly prepare the concrete surface, failed to use the recommended adhesive and failed to lay the matting in a proper and workmanlike manner. The contractual complaint was based upon the respondent's failure to satisfactorily complete the contracted works. An order to pay to rectify the tennis court and damages in excess of $109,000 was sought, together with costs.
The respondent defended the complaints on the basis that the failure of the tennis court was due to factors outside his control, including that the matting supplied by the applicant had become damaged during the period of some eight years when it had been kept in storage.
The BDT was not satisfied that it had been established that the failure of the tennis court was due to the respondent not having undertaken the building works in a proper and workmanlike manner, and held that there was no basis to uphold the contractual complaint. The applicant seeks a review of both of these outcomes.
Leave to review applicable principles
The principles governing the grant of leave to review decisions of the BDT are set out conveniently by Senior Member Raymond in Tangent Nominees Pty Ltd and Edwards [2005] WASAT 19 at [35] [44]. The principles are summarised below:
•It must be shown that the decision in respect of which leave is sought is wrong or attended with sufficient doubt to justify the grant of leave.
•In addition, something further must be demonstrated. Substantial injustice resulting from leaving the decision unreversed is a common further requirement, although it is no more than a guideline for the exercise of a broad discretion to grant or withhold leave.
•The additional factor element may in some cases be satisfied if it is shown that a significant question of law is to be considered.
•This Tribunal should be slow to grant leave except in cases where clearly there is no discernible basis for the decision of the BDT, or other cases of apparent error, for example, where rules of procedural fairness have been breached.
•The grant of leave will be limited to such grounds as this Tribunal determines.
Jurisdiction of BDT
Before dealing with the reasoning of the BDT on the applicant's substantive complaints and the errors alleged by the applicant in respect of that reasoning, I will refer to an issue dealt with in the course of the hearing before the BDT, namely, the jurisdiction of the BDT to hear and determine complaints regarding the laying of the tennis court surface. I do so despite the fact that the respondent did not seek to challenge the ruling of the BDT that it did have jurisdiction. In a case where, despite the point not being taken, I was satisfied that the BDT lacked jurisdiction but proceeded to deal with the applicant's complaints, I would feel compelled to grant leave pursuant to s 41 of the BR Act. In that event, the only possible outcome on review would be to dismiss the complaints for lack of jurisdiction.
The workmanship complaint was brought under s 12A(1) of the BR Act. Under that provision, the BDT is empowered to make either an order to remedy or an order to pay if 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 ...
By s 3(1a) of the BR Act, s 12A applies throughout Western Australia to building work that is home building work as defined in the Home Building Contracts Act 1991 (WA) (HBC Act).
'Home building work' is defined in s 3(1) of the HBC Act as meaning:
The whole or part of the work of
(a)constructing or reconstructing a dwelling including an existing dwelling and/or stratatitled dwelling;
(b)placing a dwelling on land;
(c)altering, improving or repairing a dwelling, including a strata-titled dwelling; or
(d)constructing or carrying out any associated work in connection with
(i)any work referred to in paragraph (a) or (b); or
(ii)an existing dwelling, including a stratatitled dwelling;
In order for the laying of the matting on the concrete substrate to form a tennis court to fit within the 'home building work' definition, it must fall within subclause (d)(ii) of the definition, there having been no other construction works concerning any dwelling at the applicant's premises. Having regard to that part, it is necessary that the work satisfies the definition of 'associated work'. That definition, which is also contained in s 3(1) of the HBC Act, is as follows:
associated work includes site works, swimming pools, spas, pergolas, carports, garages, sheds, fencing, retaining walls, paving, driveways, landscaping and other like works;
A reading of the transcript of the hearing in the BDT discloses that the applicant relied upon two alternative bases for the work performed by the respondent as coming within the definition of 'associated work': firstly, that the laying of the surface falls within the description in the definition 'paving'; and secondly, that a tennis court is a sufficiently similar facility to a swimming pool as to be contemplated by the words 'other like works' in the 'associated work' definition.
Although, according to the relevant transcript exchange, the Deputy Chairperson of the BDT ruled the complaints fell within the jurisdiction of that Tribunal, no indication was given of which, if either, of the alternative grounds upon which the applicant relied was accepted. The Deputy Chairperson referred merely to the 'very broad definition' of building works to be applied, and, more particularly, to the fact that the definition includes 'such things as the application of a coating, such as painting'. This was, with respect, a somewhat curious reference. It is not to the definition of 'building work' or 'home building work' to which I have referred, but, rather, to the definition in the HBC Act of 'construct'. But the definition of 'construct' relates expressly to a dwelling, whereas, as I have also discussed, to the extent that the works here comprised 'home building work', they did so by reason of their being regarded as 'associated work', and not as part of the construction of any dwelling.
The correct question is: does laying a rubber mat surface to a concrete substrate to form a tennis court surface satisfy the 'associated work' definition?
I consider that both of the applicant's justifications before the BDT for the assertion of that Tribunal's jurisdiction are open to doubt.
It seems to me that a consideration of the properties of the matting surface strains to, if not beyond, the limit the dictionary definition for 'paving' relied upon in the BDT of 'the top covering of a floor, courtyard, road, etc, made of pieces of hard material fitted close together or of an undivided hard coating so as to give a compact, uniform and smooth surface'.
I accept that the 'associated work' definition includes a wide range of improvements to a piece of land, including the recreational 'swimming pools' and 'spas'. Given that no objection has been raised by the respondent, I am prepared to assume that any work associated with the construction of a tennis court falls within 'other like works' for the purposes of the definition of 'associated work'. I do so in the absence of the critical analysis, which would have been necessary had this been raised as an issue for my determination.
Reasoning of the BDT
The BDT summarised the respects in which the applicant urged it to find that there had been a want of proper workmanship on the part of the respondent as being:
1)the respondent's failure to follow the technical specifications of the Italian manufacturer of the matting regarding preparation of the concrete substrate. In particular, the acid wash employed by the respondent, which was not the recommended method of preparation, had affected the adhesion properties;
2)the respondent had failed to use the adhesive recommended by the manufacturer, the adhesive used having failed to adhere the rubber matting to the substrate;
3)the respondent had failed to follow the manufacturer's technical specifications regarding avoiding laying the rubber in hot conditions;
4)the respondent had failed to rectify the bubbles in the manner recommended by the manufacturer; and
5)the respondent's workers had exhibited faulty workmanship in laying of the rubber material, as shown by the fact that not all of the rubber had bubbled.
In a reasonably succinct set of findings, appearing under a heading by that name, at [20] [23] of its reasons for decision, the BDT held:
a)the evidence did not prove the cause of the bubbling and failure of the material to adhere to the concrete substrate;
b)there was a number of intervening factors to break the chain of causation linking the respondent's work to the failure of the tennis court;
c)the most significant intervening factor was the age of the rubber matting and the four years of its storage in a manner not recommended by the manufacturer. There was a real possibility that this adversely affected the condition of the matting and caused, or contributed to, the failure of the work;
d)there was no evidence that the fault was due to the alternative method used for preparing the concrete or use of the alternative adhesive;
e)there was no evidence that the recommended adhesive had superior chemical properties to the adhesive used;
f)in relation to the contractual complaint, the claim that the respondent abandoned the work in breach of the contract was not proved. The respondent was prevented from completing the contract by failure of the materials, for which the respondent had not been shown to be responsible.
I will refer to the reasons for decision in more detail when I deal with the grounds upon which the applicant seeks the review of the BDT's decision.
Review grounds and consideration for leave purposes
The applicant, who was represented, raised in his application five grounds upon which review of the BDT decision was sought. Those grounds are:
1)the BDT failed to give sufficient weight to the written reports of any expert evidence provided by the applicant;
2)the BDT failed to consider the extent of factual evidence provided by the applicant to support the faulty and unsatisfactory work of the respondent;
3)the BDT failed to consider the conflicting evidence given by the respondent;
4)the BDT failed to consider the lack of evidence from the respondent to dispute the applicant's claim; and
5)the BDT gave insufficient consideration to the evidence given by the applicant to prove the breach of contract which lead [sic] to the faulty product.
The applicant provided written submissions in support of each of the proposed review grounds, which formed the basis of oral argument at the hearing.
The respondent, who was not represented, filed written submissions in response, and also made oral submissions at the hearing.
This Tribunal also had the benefit of the book of documents before the BDT, exhibits before the BDT and, as I have said, the transcript of the BDT hearing into the matter.
I will deal with each of the proposed review grounds in turn.
The BDT failed to give sufficient weight to the applicant's written reports
In the applicant's written submissions for leave, nine separate complaints are made in respect of the reasoning of the BDT under this ground. Some of those complaints can be dealt with more shortly than others, in my view. The complaints falling within the former category are:
a)The applicant contended that the BDT 'dismissed' expert reports tendered by the applicant 'as lacking in evidence'. Particular reference was made to a passage in the BDT's reasons for decision (at 7) where it was observed that none of the authors of the various documents relied upon by the parties was available for cross-examination. In my view, on a proper reading of the BDT's reasons for decision, the BDT did not 'dismiss' the expert reports relied upon by the applicant. Rather, it took those reports into account, but, for reasons to which I shall refer, was not persuaded by them to the degree necessary to accept the applicant's claims. Clearly, the fact that the applicant had not produced the authors of the reports relied upon as witnesses counted against her case in the end. However, the reference at 7 was to the evidence and reports of both parties, not just the applicant. It is also worth noting here the applicant's concession that it was her decision not to call any experts and to rely on the written reports themselves, in an attempt to 'minimise unnecessary costs'.
b)The applicant asserted that the BDT 'accepted the respondent's proposition' for it not calling any experts, the proposition here being a similar desire on the part of the respondent to minimise costs. The allegation is one of the BDT applying different standards when it came to the consequences of the parties not presenting the best evidence in support of their respective positions. However, when one reads the relevant exchange in the transcript (T:82, 24.12.09), the BDT, far from accepting the respondent's excuse, pointed out that the respondent's evidence on a particular matter was not very strong because it was mere submission. Further, there is nothing in the reasons for decision to bear out any such preferential treatment as alleged.
c)The applicant alleged the BDT failed to give sufficient consideration to recommendations of the manufacturer of the recommended Mapei adhesive contained in documents tendered by the applicant. But the BDT's findings, which are not challenged, that there was no evidence that the fault was due to the respondent's use of the Rebound Ace adhesive, and that there was no evidence that the Mapei adhesive had superior chemical qualities to the Rebound Ace, formed, in my view, a proper basis for its conclusion that the applicant had failed to demonstrate that the fault was attributable to the recommended adhesive not being used.
d)The applicant claimed that the BDT made a suggestion, tantamount to a ruling, that 50% of the rubber matting had deteriorated due to its age. But consideration of the relevant transcript reference (T:24, 24.10.09 at line 13) makes clear that the BDT member was merely speculating or hypothesising about that matter with a view to exploring a particular point with the applicant's counsel. A further complaint concerning the BDT's treatment of the applicant's evidence on the question of deterioration will be considered separately below.
e)The applicant complained that the BDT 'led the respondent as to the suitability and quality of the Mondo material'. When one reads the whole of the relevant transcript excerpt (T:77, 24.10.09 at lines 20 54), it can be seen that, in addition to the hypothesis, consistent with the respondent's case, that the quality of the material may have caused or contributed to the problems, the same Tribunal member also raised the possibility, adverse to the respondent, that the respondent should have been aware of the potential for a problem which might have suggested testing before commencing the works. Rather than 'leading' the respondent as suggested, in my view, the member was simply engaging in the common exercise of putting a number of different scenarios to the respondent's representative in order to test a particular proposition.
f)It is said that the BDT failed to give sufficient weight to the report of the Builders' Registration Board's inspector. The BDT's reasons for decision reproduce the inspector's report in full, so, clearly, the BDT was aware of it, although I can find no further reference to it in the reasons. However, it was incumbent on the BDT to reach its own conclusions on the basis of all the evidence before it. Further, although he appeared to make findings, the necessary consequence of which would have been that the respondent was liable under both the workmanship and contractual claims, the inspector, for reasons which are unclear, decided to refer each complaint to the BDT for adjudication without, as is often done, recommending any particular action (for example, that the respondent remedy the works). This prevarication might reflect the number of possible operating factors appearing in the report, some of which fell within the applicant's control. It was the BDT's task to identify and deal with the possible contributing factors in order to determine the workmanship and contractual complaints. It is evident from the BDT's reasons for decision that the failure of the applicant to call his experts, and to properly explain and justify the results of such testing as was undertaken, was a significant factor in his failure to establish to the satisfaction of the BDT that the cause of the failure of the tennis court was something within the control of the respondent, and the inspector's report did not fill that evidentiary gap.
I turn then to those complaints about the reasoning of the BDT which require more detailed consideration.
The first of these complaints is that the BDT 'dismissed the applicant's evidence' about a report from the manufacturer of Rebound Ace stating that its adhesive was very poor with Mondo rubber when heated to 45 degrees, yet there was no adhesion failure at 70 degrees when used with Rebound Ace rubber.
The BDT, in its reasons for decision, reproduced passages from the report from Rebound Ace to which the applicant's complaint refers (at 19). Although it is true that the report referred to testing of the Mondo rubber product heated to 45 degrees centigrade, when the bond of the adhesive was found to be very poor and easily removed, the report suggested, as the probable cause, that an exudent perhaps plasticiser or oil was being forced from the rubber surface by the heat. The report also opined that the adhesive recommended by the manufacturer of Mondo would obtain similar results. This was by no means a firm opinion; the report itself suggested that the respondent obtain a sample of the recommended adhesive and test it for adhesion. The applicant relied in particular on a further comment in the report that, when used to bond their own Rebound Ace rubber matting, the Rebound Ace adhesive was resistant to temperatures of up to 70 degrees celsius without any adhesion failure, in order to demonstrate that the Rebound Ace adhesive is unsuitable for application with the Mondo material. However, given that the testing was conducted on a sample of the unused Mondo matting from the applicant's stock rather than a new exfactory sample, the comment in the Rebound Ace manufacturer's report is equally consistent with the failure being attributable to the qualities of the sample as with any superior performance of the Mapei adhesive over its Rebound Ace counterpart. This is the effect of what appears in the BDT's reasons for decision at 22, and, in my opinion, no error is thereby disclosed.
The next complaint of substance under the current ground is that the BDT gave insufficient weight to the applicant's tendered evidence that the Mondo rubber had not deteriorated. The most important single item of that evidence was a letter from a director of the Mondo manufacturer, the substance of which is reproduced in the BDT's reasons for decision at 21. The letter asserts, confidently, that ' … the problems are not from Mondo SpA material that we supplied to you'. The letter refers to tests being done on the sample supplied by the applicant, the results of which were said to be in compliance with the standard quality of similar products, the sample was in the same condition as when originally purchased, and it was clear that the material was not damaged.
The BDT, in its reasons for decision at 22, observed that the applicant's instructions to the manufacturer for testing its product, particularly as to the storage conditions of the matting, were not available to it, the applicant did not provide a number of random samples of the material to Mondo, and the manufacturer's conclusions were not subjected to crossexamination. As a result, the BDT explicitly attributed less weight to the evidence. It seems to me that any one of these reasons provided a basis for it doing so, and all three in combination virtually compelled it. The applicant submitted that, had the storage of the matting resulted in any deterioration, this would have affected the entirety of the matting, whereas the evidence indicated that some parts were affected and some were not. The applicant did not point me to any scientific evidence which was before the BDT to support such a contention, but relied instead upon the fact that no other report made a complaint about the Mondo testing being too narrow. It was for the applicant to satisfy the BDT of the necessary elements of his complaint. On the facts of this case, it was necessary for him to demonstrate, by appropriate evidence, that the cause, or part of the cause, of the failure of the works was attributable to factors for which the respondent was responsible, in preference to other factors for which the respondent would not be responsible. The BDT explained, in clear terms, why it considered the applicant to have failed in discharging that onus.
The final complaint arising under the first ground is that the BDT gave insufficient weight to reports provided on a variety of subjects: storage and quality of the rubber, specifications for laying the product, volatile gases in rubber, adhesion of glue, additives in concrete and temperatures on the day. I have dealt already with some of these. Regarding the remainder, I make the following observations:
• The BDT accepted that the rubber matting was not laid in accordance with the specifications of the manufacturer, including preparation of the concrete substrate, use of the recommended adhesive, and the warning against laying in hot conditions. It found that this was not determinative, however, particularly in light of possible intervening factors, such as the age of the matting and its four years of storage in a manner not recommended by the manufacturer, as well as the respondent's explanation of the methods adopted in laying the material.
• The BDT's reasons for decision referred to the test by the Chemistry Centre of the rubber matting, which concluded that it was not releasing volatile gases, and to the respondent's acceptance that this was to be discounted as a possible cause.
• Regarding additives in the concrete, the BDT referred to the specification by the Mondo manufacturer that the concrete substrate contain no additives, whereas the evidence disclosed that additives to enhance durability were, in fact, added. It is unclear to me what point was sought to be made in relation to the evidence of the applicant before the BDT on this subject. The reliance placed by the BDT on the finding to which I have just alluded goes no further than the identification of one of a number of possible causes postulated by the respondent, albeit without scientific evidence to support it, for which the respondent should not be liable.
Given the manner in which the BDT ultimately decided against the applicant, it is inaccurate, in my view, to accuse it of giving 'insufficient weight' to the evidence of the applicant to support the various elements of complaint. Rather, because of the matters identified in the reasons, such as failure to call experts, failure to produce instructions given to experts in order to assess test results, and the range of other possible explanations for the failure, the BDT was not persuaded as to its causal connection with the performance by the respondent of the work for which it had contracted. I consider that this was a finding that was open to the BDT in light of the evidence before it.
The BDT failed to consider the extent of factual evidence supplied by the applicant
The following particulars in support of this ground have already been dealt with:
a)The BDT failed to give sufficient weight to the fact that the respondent had not followed the manufacturer's specifications supplied.
(b)The BDT failed to give sufficient weight to the applicant's evidence that the Mondo rubber was in the same condition as when it had originally been purchased by the applicant.
The applicant claimed that the BDT gave insufficient weight to evidence tendered by the applicant which showed that the respondent failed to follow the specifications in relation to the alternative (Rebound Ace) adhesive used. Those specifications included that the Rebound Ace adhesive was not to be used in hot conditions, when it would dry very quickly.
The reasons for decision of the BDT at 18 referred to the evidence of the respondent's Mr Taylor that he has extensive experience with the Rebound Ace adhesive. According to Mr Taylor, the Rebound Ace adhesive does not react in hot conditions, and it sets more quickly than the Mapei adhesive, which is preferable, because it avoids the consequences of the rubber material expanding and contracting over time.
I have already referred to the BDT's findings in its reasons for decision at 22 that there was no evidence that the fault was due to the respondent's use of the Rebound Ace adhesive. Implicit in this finding is a rejection of the contention that the failure to follow the specification in relation to avoiding laying in hot conditions contributed to the outcome. This contention was unsupported by any evidence, and was contrary to Mr Taylor's evidence, making its rejection immune from criticism in a leave context.
The next particular raised relates to the applicant's contractual complaint. It is that the BDT failed to give sufficient weight to evidence that the respondent agreed that it had left the work incomplete.
At the hearing, I invited the applicant's counsel, Ms Fifield, to explain the consequences which might flow, were this particular to be substantiated, and she was unable to do so. I will address the relationship between the workmanship and contractual claims later in these reasons, but it is sufficient for present purposes to point out that the parties agree that the extent of the bubbling meant that the work had totally failed. That being so, it would be necessary, in order for the tennis court to be satisfactorily completed, for someone (whether that be the respondent or someone else) to remove the matting and start again. The real question is the reason for the failure, not who did what when the extent of the problem became apparent.
The respondent then says that the BDT failed to give sufficient weight to the applicant's evidence that the respondent damaged sections of the rubber in making incisions to remove bubbles, and that the BDT 'accepted the respondent's actions' in doing so, despite a report tendered by the applicant recommending that a syringe be used to remove bubbles. My comments above concerning the total failure of the product applies equally to these claims.
The BDT failed to consider conflicting evidence by the respondent
Under this ground, the applicant argued, in effect, that certain evidence of the respondent should have been rejected by reason of its internal inconsistency, but was not. Two examples were relied upon, and I will deal with each in turn.
The first example concerns Mr Taylor's assertion that he first learnt of the age of the Mondo rubber following the making of the complaints from an officer of the BRB. It is said that this contradicted Mr Taylor's subsequent evidence that he had been told by someone at the site that the rubber matting had been there for years.
The significance of the respondent's knowledge of the age of the material and conditions in which it had been kept becomes apparent in the transcript (between T:80 at line 49 and T:81 at line 1), where Mr Taylor said that, had he known it was eight years old, he probably would not have agreed to lay it. If this evidence is accepted, it supports the respondent's position because, amongst other reasons, the failure of the tennis court could be attributed with as much confidence to the condition of the material itself as to anything done by the respondent. Significantly, for current purposes, it would mean that the material's condition was not a matter within the respondent's actual or constructive knowledge.
In my view, on a proper reading of the actual exchange between members of the BDT and Mr Taylor (T:80, 24.10.09 at lines 30 45), there is no inconsistency. Mr Taylor was asked when was the first time that he was told that the product was purchased eight years ago, to which he made reference to the BRB officer having told him. In response to a further, cutoff question, he indicated that he was not advised of the age of the product by the applicant, adding:
In fact, there was a young man on the site at one stage who said it had been sitting out under the trees there for years, and I didn't pay a great deal of attention to that.
This addition did not contradict the earlier answer nor call its accuracy into question. It provided the gloss that someone on site had indicated that the material may have been outside 'for years'. Although, in the hearing before me, the applicant submitted that the young man's statement should have implanted in Mr Taylor's mind a doubt about the material arising from its age which should have impacted on whether to proceed to lay it, it was conceded that this was not pursued in the BDT, either in the points of claim document before the BDT or otherwise. The applicant relied instead upon a statement made by the respondent which warrantied the end product. I will deal with this claim when I consider the applicant's contractual complaint.
The second example given of alleged conflicting evidence on the part of the respondent concerns the alleged representation made to the applicant that he would be using installers who had expertise in laying the Mondo rubber.
In response to a question of the Deputy Chairperson (T:76, 24.10.09 at lines 28 34), the expertise of the installers was referred to by Mr Taylor in the following terms:
The guys that were doing the installation are highly experienced floor layers. They do a lot of work for BGC, they do a lot of work for Carpet Choice, Carpet Call, all that type of stuff, and that's how I got them. They were recommended to me as being among the best in the business so I had no concerns about their capabilities.
Mr Taylor was crossexamined about this (T:109, 24.10.09 at lines 18 39) and the effect of Mr Taylor's evidence was that he advised the applicant that he had expert installers who had experience with Mondo products.
There was nothing before the BDT to indicate that carpet installers would not have sufficient expertise for the laying of the Mondo product on a concrete substrate for the purpose of constructing a tennis court, particularly where the carpet installers had previous experience laying Mondo rubber. Further, no particulars were given as to how the alleged lack of expertise manifested itself in performance of the works, with the possible exception of the manner in which the rolls had been cut, which was said to have contributed to there being insufficient material left to complete the job satisfactorily. Given that the laying of the material failed totally, such a claim, even if proved, is neither here nor there.
The assertion of inconsistency on the respondent's part is rejected. In any event, the alleged failings of the respondent's subcontracted installers are yet another example of a suggested cause of the product failure for which the respondent might have been answerable, but which the BDT was not persuaded on the evidence to accept.
The BDT failed to consider the lack of evidence from the respondent to dispute the applicant's claim
The particular of this ground is set out in full:
The BDT had set a standard requiring experts to be called to give evidence and be cross-examined and failed to give sufficient weight that the respondent had:
(i)not called any expert witnesses;
(ii)not provided any expert documents; and
(iii)relied solely on his own opinion.
With respect, the ground, as so particularised, ignores that it was for the applicant to show, to the satisfaction of the BDT, that the constituent elements of the complaints were made out. Focusing on the workmanship complaint (the contractual complaint being the subject of the next ground), it was necessary for the applicant to show that building work had not been carried out in a proper and workmanlike manner by reason that the building work was faulty or unsatisfactory. For reasons already discussed, and in particular because of the failings of the applicant's evidence on issues of causation and the like, the BDT was not so satisfied.
When particular regard is had to a number of exchanges shown in the transcript between members of the BDT and Mr Taylor, it is clear that the BDT was similarly unimpressed with the standard of the evidence of the respondent on significant issues, with the consequence that the BDT did not make determinative findings of causation in its favour. However, the deficiencies of the applicant's case precluded the BDT from making the findings necessary for the workmanship complaint to succeed. I detect no error in its reasoning to this effect.
The BDT gave insufficient consideration to the applicant's evidence to show there had been a breach of contract
The particulars provided for this ground refer to the respondent having agreed that it terminated the contract when it noticed bubbling, and that the contract had therefore not been fulfilled and the applicant did not get a product fit for purpose.
The BDT regarded the contractual complaint as incorporating an assertion that the respondent had abandoned the contract, which it rejected on the basis that the evidence showed the parties to have agreed to a variation subsequent to the problems of the rubber material becoming apparent. The relationship then broke down, and the varied agreement was not performed (BDT reasons for decision at 22).
The BDT rejected the contractual complaint on the further basis that the respondent was prevented from completing the contract by the failure of the materials, and the applicant had not proved that the respondent was responsible for that failure (reasons for decision at 23).
Where both a workmanship complaint under s 12A of the BR Act and a contractual complaint under s 17 of the HBC Act are made, it is not possible for the complainant to recover twice in respect of the same subject matter. That much is made clear by the terms of s 17(1)(a)(i) of the HBC Act. Section 17(1)(a)(i) is in the following terms:
(1)Where an owner or a builder under a contract claims that
(a)there has been a breach of
(i)the contract, not being a breach in respect of which an order may be made under section 12A of the Builders’ Registration Act 1939;
…
he or she may apply to the Disputes Tribunal for relief.
There might be a nice question as to whether a particular breach of contract is or is not a breach in respect of which an order under s 12A of the BR Act may be made. The contractual argument here, in both its forms, appears to be quite different in substance from that for relief under s 12A of the BR Act. However, when the circumstances of the termination of contract are considered, it can be seen that the termination related directly to the failure of the surface. In the event that the applicant was able to establish that the failure was the result of a workmanship issue, he would be entitled to his remedy under s 12A of the BR Act, with the corollary that he was unable to bring a contractual claim under s 17 of the HBC Act. The applicant's submissions appear to be based on an assumption that whenever a building contract is not fulfilled by the builder, the owner will be entitled to an order, in the nature of specific performance or damages, so as to place it in the position he or she would have been in, had it been so. But what of a case such as this, where the owner has failed in his workmanship claim, and the builder and the owner were unable to reach terms regarding a variation of the contract consequential upon the impossibility of completion of the original contract? In my view, there can be no residual 'contractual' liability on the part of the builder, because the builder cannot, in the absence of some other allegation being proved, be regarded as having committed any breach. This represents a preferable outcome to that which was urged by the applicant, which, if accepted, would mean that a claim arising from the nonperformance of a contract could succeed under s 17 of the HBC Act despite indeed, because of the failure of a claim under s 12A of the BR Act.
Finally, the applicant made reference to an asserted failure of the BDT to sufficiently consider the respondent's warranty of the product for five years, provided it was installed to the respondent's specifications. Although the subject of an exchange between the Deputy Chairperson of the BDT and Mr Taylor (T:84, 24.10.09), the warranty issue was not mentioned in the reasons for decision. The applicant does not rely upon this omission, however. Rather, and somewhat curiously, the existence of the warranty was referred to not under ground 5, but as one of a number of particulars on the issue of whether or not a substantial injustice might arise if the decision remained undisturbed. It was not the subject of any detailed submissions at the hearing before me. Had it been, there may have been a need to consider whether, for example, in addition to the express term of the warranty recited in the points of claim (that the surface be installed to the respondent's specifications), the warranty was subject to limitation in the event that the material was not in a condition suitable for laying. It may well be that the BDT's reasons for finding against the workmanship claim undermined, to the point of extinction, a contractual claim based on the warranty. It would be surprising indeed if the layer of a rubberised surface might be held to the terms of a warranty where, unbeknown to him or her, and without any means of knowing, the material supplied by the other party was not suitable for the purpose. In any event, as I have said, the intricacies of the claim based on warranty were not raised before me, and the BDT had nothing to say about it in its reasons for decision, as to which the applicant makes no complaint. In those circumstances, it is incapable of sustaining the grant of leave.
Conclusion and orders
For the above reasons, none of the grounds advanced by the applicant in favour of the grant of leave pursuant to s 41 of the BR Act is upheld. The Tribunal shall therefore issue an order in the following terms:
1.Leave to review the decision of the Building Disputes Tribunal dated 12 August 2009 is refused.
2.The application is dismissed.
I certify that this and the preceding [67] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR T CAREY, MEMBER
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