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DESHMUKH and DISTINCTIVE BUILDING SERVICES PTY LTD

DESHMUKH and DISTINCTIVE BUILDING SERVICES PTY LTD

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Case Copied 6 March 2024 44 min read

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JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   DESHMUKH and DISTINCTIVE BUILDING SERVICES PTY LTD [2024] WASAT 15
MEMBER:   MR D AITKEN, SENIOR MEMBER
HEARD:   13 DECEMBER 2023
DELIVERED          :   6 MARCH 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:

Building Services (Complaint Resolution and Administration) Act 2011 (WA) - Claim for damages for delay in completion of dwelling while contract on foot - Application for leave to review decision of original Tribunal - Criteria for the grant of leave to review - Whether original Tribunal breached the rules of natural justice - Whether original Tribunal made an error in the exercise of its discretion to decline to make a HBWC remedy order - Principles in relation to an appeal against exercise of discretion - Proper construction of discretion to make a HBWC remedy order - Considerations concerning whether a HBWC remedy order is justified - Whether the applicants would suffer a substantial injustice if leave to review not granted

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5(1), s 5(2), s 11(1)(d), s 12(a), s 36(1), s 36(1)(a), s 36(1)(b), s 36(1)(c), s 38, s 38(1), s 38(1)(a), s 38(1)(b), s 41, s 41(1), s 41(2), s 41(2)(d)(i), s 43, s 43(1), s 43(1)(a), s 43(1)(b), s 58, s 58(2), s 58(5),
Home Building Contracts Act 1991 (WA), Pt 3A, s 25D
State Administrative Tribunal Act 2004 (WA), s 27, s 42, s 42(1), s 42(3), s 74(a), s 79

Result:

Leave granted to review order made by original Tribunal to decline to make a HBWC remedy order

Category: B

Representation:

Counsel:

First Applicant	:	J Jacobson
Second Applicant	:	J Jacobson
Respondent	:	Mr K Hassan (acting as Agent)

Solicitors:

First Applicant	:	Jacobson & Associates
Second Applicant	:	Jacobson & Associates
Respondent	:	N/A

Cases referred to in decision(s):

Alison Louise Lobbe atf Lobbe Newman Trust and Kelpie Endeavours Pty Ltd atf Testa Rossa Family Trust and Quality Builders Pty Ltd [2014] WASAT 110
Byham and Afra Construction Pty Ltd [2014] WASAT 38
Chellem and Kulowall Construction Pty Ltd [2022] WASAT 95
Filimon and Rimmer [2013] WASAT 13
Gemmill Homes Pty Ltd v Sanders [2018] WASC 179
Hadley v Baxendale (1854) 156 ER 145
House v R (1936) 55 CLR 499
Jetpoint Nominees Pty Ltd and Lee [2021] WASAT 10
Jones and Afra Constructions Pty Ltd [2014] WASAT 54
Kulowall Construction Pty Ltd v Chellem [2023] WASC 140
Lampman and Afra Constructions Pty Ltd [2014] WASAT 27
Myran Holdings Pty Ltd and Bombak [2013] WASAT 20
Ogle v Comboyuro Investments Pty Ltd (1976) 136 CLR 444
Owners of Island Apartments Strata Plan 52597 and Pindan Pty Ltd [2017] WASAT 25
Psaros Builders Pty Ltd v Owners of Strata Plan 52843 [2014] WASC 34
Waldron and Afra Construction Pty Ltd [2013] WASAT 207

REASONS FOR DECISION OF THE TRIBUNAL

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 15
Decision Date: 6 MARCH 2024

CaseChat Overview and Summary

The case of Deshmukh and Distinctive Building Services Pty Ltd was heard before the Supreme Court of Western Australia. The dispute involves the applicants seeking damages for delay in the completion of a dwelling under the Building Services (Complaint Resolution and Administration) Act 2011 (WA). The applicants, Deshmukh, alleged that the builder, Distinctive Building Services Pty Ltd, had not completed the work in a timely manner as agreed upon in the contract. The applicants sought leave to review the decision of the original Tribunal that had declined to make a Home Building Works Compensation (HBWC) remedy order.

The court was tasked with determining whether the original Tribunal had breached the rules of natural justice and whether it had erred in declining to make a HBWC remedy order. The applicants argued that the Tribunal had not properly considered their evidence and had failed to provide reasons for its decision. They also contended that the Tribunal had misconstrued the discretion to make a HBWC remedy order. The builder, on the other hand, asserted that the Tribunal's decision was correct and that the applicants had not demonstrated that the Tribunal had breached any principles of natural justice or made an error in the exercise of its discretion.

The court found that the original Tribunal had indeed breached the rules of natural justice by failing to provide adequate reasons for its decision. It also held that the Tribunal had misconstrued the discretion to make a HBWC remedy order, as it had not properly considered the applicants' evidence. The court concluded that the applicants would suffer substantial injustice if leave to review was not granted, and accordingly, granted the application for leave to review. The matter was remitted back to the Tribunal for reconsideration in light of the court's findings.

Orders