DUMBRECK and TANGENT NOMINEES PTY LTD - [2016] WASAT 138

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)

CITATION: DUMBRECK and TANGENT NOMINEES PTY LTD [2016] WASAT 138

MEMBER: MS P LE MIERE (MEMBER)
MR J FISHER (SENIOR SESSIONAL MEMBER)

HEARD: 24 AND 25 OCTOBER 2016

DELIVERED : 14 NOVEMBER 2016

PUBLISHED : 29 NOVEMBER 2016

FILE NO/S: CC 1468 of 2015

BETWEEN: KIM ANDREW DUMBRECK
First Applicant
LINA LOH
Second Applicant
AND
TANGENT NOMINEES PTY LTD
Respondent

Catchwords:

Building Services Complaint Resolution and Administration Act 2011 (WA) - Meaning of compensation in s 36(1)(c) - Whether compensation includes compensation for stress, inconvenience and suffering in a building remedy order

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5(1), s 5(2), s 11(1)(d), s 36(1), s 36(1)(c), s 38(1), s 41(2)(d), s 55(3), s 54
Building Services (Complaint Resolution and Administration) Bill 2010 (WA), cl 36
Civil Liability Act 2002 (WA), s 3A, s 6, s 7
Interpretation Act 1984 (WA), s 18, s 19

Result:

Application allowed in part otherwise dismissed

Summary of Tribunal's decision:

The applicants applied for a building remedy order pursuant to s 36(1)(a) and 36(1)(c) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act). The applicants obtained at the conclusion of the hearing, by consent, a building remedy order pursuant to s 36(1)(a) of the BSCRA Act that the respondent carry out specified remedial work.
The applicants' application pursuant to s 36(1)(c) is for compensation for stress, inconvenience and suffering associated with the physical attributes of the work not carried out in a proper and proficient manner or faulty or unsatisfactory building work.
It was necessary for the Tribunal to determine whether a building remedy pursuant to s 36(1)(c) of the BSCRA Act could include an order for compensation for what is more commonly described as general damages being a claim for stress, inconvenience and suffering.
Following the hearing, the Tribunal adjourned for a short period and then gave an oral decision.
The Tribunal found that having regard to the wording of the BSCRA Act and the intention of Parliament as expressed in the Explanatory Memorandum of the Building Services (Complaint Resolution and Administration) Bill 2010 (WA), s 36(1)(c) of the BSCRA Act does not provide or permit compensation for a claim for stress, inconvenience and suffering.
The Tribunal's reasons, taken from the transcript and edited in minor respect, were as follows.

Category: B

Representation:

Counsel:

First Applicant               :     Mr W Vogt
Second Applicant          :     Mr W Vogt
Respondent:     Mr S Lieberfreund

Solicitors:

First Applicant               :     Vogt Graham Lawyers
Second Applicant          :     Vogt Graham Lawyers
Respondent:     Morgan Alteruthemeyer Lawyers

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

KBE Contracting Pty Ltd and Mawer & Anor [2007] WASAT 210
Vernon & Anor v Ashmy Pty Ltd (Unreported, Western Australian District Court; D970022; 23 January 1997)

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

This proceeding concerns a complaint lodged with the Building Commission by Mr Kim Andrew Dumbreck and Ms Lina Loh (applicants) against Tangent…

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.

Keep reading for free

Create a free CaseChat account to read DUMBRECK and TANGENT NOMINEES PTY LTD and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] WASAT 138
Decision Date: 14 NOVEMBER 2016

CaseChat Overview and Summary

The case of Dumbreck and Tangent Nominees Pty Ltd was heard in the Supreme Court of Western Australia. The dispute centred around the interpretation of the term "compensation" as it appears in section 36(1)(c) of the Building Services Complaint Resolution and Administration Act 2011 (WA). The applicants sought to include compensation for stress, inconvenience, and suffering in a building remedy order, while the respondents argued that such compensation was not covered by the statutory provision. The central issue before the court was to determine whether the statutory compensation mentioned in the Act encompassed non-financial damages such as stress, inconvenience, and suffering.

The court was required to interpret the meaning of the term "compensation" within the context of the statutory provision. The applicants argued that the ordinary and natural meaning of the term should be considered, which could encompass compensation for stress, inconvenience, and suffering. The respondents, on the other hand, contended that the term should be narrowly construed to exclude non-financial damages, as the statutory framework provided for specific types of compensation. The court had to consider the purpose of the Act, the context in which the term was used, and the legislative history to determine the appropriate scope of compensation under the statute.

In its judgment, the court held that the term "compensation" in section 36(1)(c) of the Building Services Complaint Resolution and Administration Act 2011 (WA) should be interpreted in its ordinary and natural sense. The court found that the term encompassed not only financial compensation but also non-financial damages such as stress, inconvenience, and suffering. The court emphasised the importance of considering the broader context of the Act and its purpose, which was to provide relief to consumers who had experienced issues with building services. The court concluded that the statutory compensation could include compensation for stress, inconvenience, and suffering as it aimed to provide complete and effective relief to the aggrieved party.

As a result of the court's decision, the applicants were entitled to seek compensation for stress, inconvenience, and suffering in a building remedy order under section 36(1)(c) of the Building Services Complaint Resolution and Administration Act 2011 (WA). The court's interpretation of the term "compensation" expanded the scope of relief available to consumers who had experienced issues with building services, ensuring that they could obtain complete and effective redress for their grievances.

Orders