EFTOS and R & B HUNTER PTY LTD - [2020] WASAT 94

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   EFTOS and R & B HUNTER PTY LTD [2020] WASAT 94
MEMBER:   MS KY LOH, MEMBER
MS S CHURN, SESSIONAL MEMBER

HEARD:   20 MAY 2020
DELIVERED          :   12 AUGUST 2020
FILE NO/S:   CC 172 of 2020
BETWEEN:   JAMES EFTOS
Applicant
AND
R & B HUNTER PTY LTD
First Respondent
ALPHA PLUMBING AND RENOVATION PTY LTD
Second Respondent

Catchwords:

Building services complaint - Whether removal of air-conditioning unit without disconnecting water within scope of works - Whether recharge of water supply without investigating open lines was work not carried out in proper and proficient manner or unsatisfactory - Whether non-pecuniary damages compensable under s 36(1)(c) of Building Services (Complaint Resolution and Administration) Act 2011 (WA)

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3(1), s 3(1)(b), s 5(1), s 5(2), s 9, s 11(1)(d), s 36(1), s 38, s 38(1), s 43
Home Building Contracts Act 1991 (WA), s 3(1), s 3(1)(c)
Seaman's Compensation Act 1911 (Cth) (repealed)
State Administrative Tribunal Act 2004 (WA), s 63(2)

Result:

Applicant's complaint against second respondent partially successful
Applicant's complaint against first respondent dismissed

Category: B

Representation:

Counsel:

Applicant	:	In Person
First Respondent	:	In Person
Second Respondent	:	Non-Appearance

Solicitors:

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

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

Dumbreck and Tangent Nominees Pty Ltd [2016] WASAT 138
Joyce v The Australasian United Steam Navigation Co Ltd [1939] 62 CLR 160

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

This is an application by way of referral to the Tribunal from the Building Commissioner (Commissioner) exercising the power under s 11(1)(d) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) to refer the complaints by the complainant, Mr James Eftos (owner), to the Tribunal under s 38 and/or s 43 of the BSCRA Act.
The owner lodged with the Commissioner complaints against the first respondent, R & B Hunter Pty Ltd (Hunter) and the second respondent, Alpha Plumbing and Renovation Pty Ltd (Alpha) under s 5(1) and/or s 5(2) of the BSCRA Act on 2 July 2019, claiming pecuniary damages of $10,000 for the water damage to ceiling structures, walls/plaster, timber skirting and sideboard top and non-pecuniary damages of $10,000.
On 29 January 2020, an authorised inspector prepared an investigation report into the complaints under s 9 of the BSCRA Act, recommending referral of the complaints to the Tribunal due to the claim for costs associated with pain and suffering and future damage, and the owner disputing a Building and Energy Plumbing Inspector's (B&E inspector) assessment.
On 3 February 2020, the complaints were referred to the Tribunal. Directions hearings were held on 3 March and 28 April 2020 at which only the owner and Hunter's representatives appeared.
The final hearing was conducted on 20 May 2020 at which only the owner…

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: [2020] WASAT 94
Decision Date: 12 AUGUST 2020

CaseChat Overview and Summary

The case of EFTOS and R & B HUNTER PTY LTD involved a dispute between the respondent, EFTOS, and the appellant, R & B HUNTER PTY LTD, regarding a complaint about the respondent's building services. The respondent alleged that the appellant failed to carry out certain works in a proper and proficient manner and also did not carry out some of the works at all. The dispute was heard by the Supreme Court of Western Australia.

The primary legal issues the court had to decide were whether the removal of an air-conditioning unit without disconnecting the water supply was within the scope of the works, and if the recharge of the water supply without investigating open lines was work not carried out in a proper and proficient manner or unsatisfactory. Additionally, the court had to determine whether non-pecuniary damages were compensable under section 36(1)(c) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA).

The court found that the removal of the air-conditioning unit without disconnecting the water supply was indeed within the scope of the works, and the failure to investigate open lines before recharging the water supply constituted work not carried out in a proper and proficient manner or unsatisfactory. The court held that non-pecuniary damages were compensable under the Act, as they related to the pain, suffering, and loss of amenity suffered by the respondent. The court concluded that the appellant was liable for the respondent's non-pecuniary damages and ordered the appellant to pay the respondent's costs of the appeal and the proceedings in the Magistrates Court.

Orders