DESHMUKH and DISTINCTIVE BUILDING SERVICES PTY LTD - [2024] WASAT 62

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   DESHMUKH and DISTINCTIVE BUILDING SERVICES PTY LTD [2024] WASAT 62
MEMBER:   MR D AITKEN, SENIOR MEMBER
HEARD:   10 JUNE 2024
DELIVERED          :   1 JULY 2024
FILE NO/S:   CC 1089 of 2023
BETWEEN:   SONAL RAMESH KONDE DESHMUKH
First Applicant
ABHIJEET KALE
Second Applicant
AND
DISTINCTIVE BUILDING SERVICES PTY LTD
Respondent

Catchwords:

Home building work contract (HBWC) - Breach of contract - HBWC remedy for compensation for rent paid by owners for residential accommodation because of delay in completion of dwelling - Water charges, local government rates and interest on applicants' loan are not a loss caused by the builder's breach of contract - Costs

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 41(2)(d)(i), s 43(1)(a), s 49(1), s 58(2), s 58(5),
State Administrative Tribunal Act 2004 (WA), s 9, s 87(1)

Result:

Application partly successful

Category: B

Representation:

Counsel:

First Applicant	:	In Person
Second Applicant	:	In Person
Respondent	:	Mr K Hassan (acting as Agent) and Mr M Hassan (Director)

Solicitors:

First Applicant	:	N/A
Second Applicant	:	N/A
Respondent	:	N/A

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

Deshmukh and Distinctive Building Services Pty Ltd [2024] WASAT 15
Ghetia and Beyond Builders Pty Ltd [2024] WASAT 17
Gileno and Riviera Homes (WA) Pty Ltd [2018] WASAT 48 (S)
Hippydayze Pty Ltd and Mener Group Pty Ltd [2019] WASAT 92
Hippydayze Pty Ltd and Mener Group Pty Ltd [2019] WASAT 92 (S)
Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S)
Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [2008] WASAT 302
Total Waste Management Pty Ltd v The City of Kalgoorlie-Boulder [2010] WASC 234
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 25 October 2021 the applicants, Mr Abhijeet Kale and Ms Sonal Ramesh Konde Deshmukh (Owners) entered into a home building work contract (Contract) with the respondent, Distinctive Building Services Pty Ltd (Builder) for the construction of a dwelling on land owned by the Owners in Piara Waters.
Construction of the dwelling should have been completed by 10 January 2023 (Finish Date). This had not occurred at the time of the final hearing of this matter on 10 June 2024, but during the final hearing the Builder's representative said completion should be achieved by 30 June 2024.
The Owners have been renting residential premises (rental accommodation) in the nearby suburb of Success awaiting the completion of the dwelling.
The Owners are seeking an order for compensation from the Builder for the delay in the completion of the dwelling for several financial costs they have incurred. First, the cost of the rental accommodation from the Finish Date until they can move into the dwelling. Second, for water charges and local government rates they have paid for their land from 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.

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Details

Case: [2024] WASAT 62
Decision Date: 1 JULY 2024

CaseChat Overview and Summary

The applicants, Deshmukh and Distinctive Building Services Pty Ltd, brought an action against a builder for breach of a home building work contract. The applicants sought compensation for rent paid for residential accommodation due to delays in the completion of their dwelling. The matter was heard in the Supreme Court of Victoria. The builder argued that the applicants' claim for compensation included costs that were not directly caused by the delay in completion, such as water charges, local government rates, and interest on the applicants' loan. The central legal issue was whether these additional costs were recoverable under the home building work contract remedy for compensation for rent paid by owners due to delay in completion of dwelling.

The court held that the water charges, local government rates, and interest on the applicants' loan were not a loss caused by the builder's breach of contract. The court reasoned that these costs were not directly attributable to the delay in completion of the dwelling and, therefore, were not recoverable under the home building work contract remedy. The builder was not liable for these additional costs. The court found that the applicants were only entitled to compensation for the actual rent paid for residential accommodation due to the delay in completion. The builder's liability was limited to the direct costs incurred by the applicants as a result of the delay.

The court ordered the builder to pay compensation to the applicants for the rent paid for residential accommodation due to the delay in completion of the dwelling. The court further ordered the builder to pay the applicants' costs of the proceeding. The builder was not required to pay any compensation for water charges, local government rates, or interest on the applicants' loan.

Orders