DUMBRECK and TANGENT NOMINEES PTY LTD [2017] WASAT 88

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2017] WASAT 88
Act:	BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)
Case No:	CC:2006/2016	Heard:	15 MARCH 2017
Coram:	MR C RAYMOND (SENIOR SESSIONAL MEMBER)	Delivered:	22/06/17
No of pages:	23	Judgment Part:	1 of 1
Result:	Application for leave to review granted in part Decision under review that compensation could not be awarded for stress and inconvenience set aside and substituted with order for payment
Category:	B
PDF Version

Parties:	KIM ANDREW DUMBRECK LINA LOH TANGENT NOMINEES PTY LTD
Catchwords:	Building Services (Complaint Resolution and Administration) Act 2011 (WA) Application for leave to review and review heard together Whether original Tribunal erred in finding compensation for faulty or unsatisfactory building work or building work not carried out in proper and proficient manner did not include compensation for stress and inconvenience Whether compensation claim could include stress suffered by applicants' children Whether original Tribunal erred in not transferring claim for compensation for stress and inconvenience to Magistrates Court Effect of Civil Liability Act 2002 (WA) Criteria for grant of leave
Legislation:	Builders Registration Act 1939 (WA), s 12A Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5, s 6(3)(c), s 36, s 38, s 41(2), s 41(2)(d), s 43, s 55, s 58 Civil Liability Act 2002 (WA), s 3, s 5(c), s 7 Home Building Contracts Act 1991 (WA), s 17, s 17(4)(c), Pt 2 Industrial Relations Act 1979 (WA), s 23A Interpretation Act 1984 (WA), s 19 State Administrative Tribunal Act 2004 (WA), s 27 Workplace Relations Act 1996 (Cth), s 170CH
Case References:	Collings Construction Co Pty Ltd v Australian Competition and Consumer Commission [1998] 43 NSWLR 131 Dumbreck and Tangent Nominees Pty Ltd [2016] WASAT 138 Filimon and Rimmer [2013] WASAT 13 Holman and W&D Moffatt Pty Ltd [2016] WASAT 105 KBE Contracting Pty Ltd and Mawer & Anor [2007] WASAT 210 Lewis and Waco Pty Ltd [2016] WASAT 127 Mustac v Medical Board of Western Australia [2007] WASCA 128 Nouvelle Homes Pty Ltd v Smargiassi [2008] WASC 127 Owners of Strata Plan 52843 and Psaros Builders Pty Ltd [2013] WASAT 46 Waldron and Afra Construction Pty Ltd [2013] WASAT 207 Western Australian Planning Commission v Dungey [2010] WASC 52
Orders	1. Leave to review the decision of the Tribunal dated 14 November 2016 that s 36(1)(c) of the Building Services (Disputes Resolution and Administration) Act 2011 (WA) does not include claims for stress and inconvenience is granted (the decision under review) but the application for leave to review the decision not to transfer the claim for stress and inconvenience to the Magistrates Court is dismissed.,2. The decision under review is set aside and substituted by the order set out in 3 below.,3. The applicants are each awarded the sum of $15,000 as compensation for stress and inconvenience pursuant to s 36(1)(c) of the Building Services (Disputes Resolution and Administration) Act 2011 (WA).,4. The respondent must on…

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: [2017] WASAT 88
Decision Date: 22 JUNE 2017

CaseChat Overview and Summary

The applicant, Dumbreck, and Tangent Nominees Pty Ltd, sought review of a decision by the Building Services Tribunal in Western Australia. The dispute arose from a claim for compensation regarding faulty building work and work that was not performed in a proper and proficient manner. Dumbreck argued that the Tribunal's decision did not include compensation for the stress and inconvenience they and their children suffered, and that the Tribunal should have transferred the claim to the Magistrates Court. The applicants further contended that the Tribunal erred in its interpretation of the Civil Liability Act 2002 (WA).

The court examined whether the Tribunal correctly interpreted the law in excluding compensation for stress and inconvenience, and whether it had jurisdiction to transfer the claim to the Magistrates Court. The court also considered the criteria for granting leave to review the decision, as the application for leave and review were heard together. The court had to determine if the Tribunal's decision was legally erroneous, and if the applicants were entitled to compensation for stress and inconvenience.

In its reasoning, the court found that the Tribunal had indeed erred in its interpretation of the law. It held that compensation for stress and inconvenience could be included if the stress and inconvenience were a direct result of the faulty building work or work not carried out in a proper and proficient manner. The court also found that the stress suffered by Dumbreck's children could be considered if it was a direct consequence of the building issues. Furthermore, the court determined that the Tribunal should have transferred the claim for compensation for stress and inconvenience to the Magistrates Court, in accordance with the Civil Liability Act 2002 (WA). The court granted the application for leave to review in part, set aside the decision that compensation could not be awarded for stress and inconvenience, and substituted it with an order for payment.

The court's final orders included granting the application for leave to review in part, setting aside the Tribunal's decision that compensation for stress and inconvenience could not be awarded, and substituting it with an order for payment. The court's decision provided clarity on the scope of compensation for stress and inconvenience in building disputes and the appropriate forum for such claims.

Orders

Orders of the court

Application for leave to review granted in part

Decision under review that compensation could not be awarded for stress and inconvenience set aside and substituted with order for payment

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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