FAQIRI and A & M CONSTRUCTION GROUP PTY LTD - [2022] WASAT 79

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   FAQIRI and A & M CONSTRUCTION GROUP PTY LTD [2022] WASAT 79
MEMBER:   MS V HAIGH, MEMBER
MR R AFFLECK, SENIOR SESSIONAL MEMBER

HEARD:   15 AND 16 DECEMBER 2021 AND 17 JUNE 2022
DELIVERED          :   5 SEPTEMBER 2022
FILE NO/S:   CC 173 of 2022
CC 1233 of 2020
CC 1572 of 2020

BETWEEN: FATIMA FAQIRI
First Applicant
HAFIZULLAH FAQIRI
Second Applicant
AND
A & M CONSTRUCTION GROUP PTY LTD
Respondent

Catchwords:

Building service complaint - Building remedy order - Whether work has not been carried out in a proper and proficient manner or is faulty or unsatisfactory - Monetary order sought by owner - Compensation - Failure to mitigate loss

Legislation:

Building Act 2011 (WA), s 3
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(1), s 7(1), s 9(1), s 10, s 11(1)(d), s 36(1), s 36(2), s 38(1)(a), s 38(1)(b)

Result:

CC 1233 of 2020 and CC 1572 of 2020
Applications partly successful
CC 173 of 2022
Application partly successful in relation to one item

Category: B

Representation:

Counsel:

First Applicant	:	In Person
Second Applicant	:	In Person
Respondent	:	Mr A Searle

Solicitors:

First Applicant	:	N/A
Second Applicant	:	N/A
Respondent	:	Searle Construction Lawyers

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

Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613
Diploma Construction (WA) Pty Ltd v South Central WA Pty Ltd [2015] WASC 289
Gemmill Homes Pty Ltd v Sanders [2018] WASC 179
Hippydayze Pty Ltd and Mener Group Pty Ltd [2019] WASAT 92
Jennings and Howitt [2019] WASAT 133
Lewis and Waco Pty Ltd [2016] WASAT 127
Nelson v Mardesic (1998) 22 SR (WA) 42
Owners of Strata Plan 59377 and Carine Homes Pty Ltd [2014] WASAT 39
Total Investments Pty Ltd and Rapley Wilkinson Pty Ltd [2015] WASAT 29
Waldron and Afra Construction Pty Ltd [2013] WASAT 207

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Mr Hafizullah Faqiri and Mrs Fatima Faqiri (owners) engaged A & M Construction Group Proprietary Limited (builder) of which Mr Amjad Umer Menom is the director, to build their double storey brick and tile home (Dwelling) at 9 Jeffrey Street Kewdale.
The Home Building Works Contract was signed on 7 September 2018 for a total sum of $540,000 (Contract).[1]
[1] Exhibit 1 pages 13 to 42.
The building work commenced on 20 October 2018 and was completed (aside from the matters the subject of this dispute) on 11 December 2019.
It is not in dispute that the owners supplied the designs and plans for the Dwelling.
The owners lodged three building service complaints with the Building Commissioner comprising 84 items.

CC 1233 of 2020 (BC 2020 - 670) - the first proceeding

On 16 May 2020 the owners lodged a building service complaint (Complaint 1) under s 5(1) of the Building Services (Complaint Resolution and Administration)…

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: [2022] WASAT 79
Decision Date

CaseChat Overview and Summary

The dispute involves complaints by Fatima and Hafizullah Faqiri about the quality of the building work carried out by A & M Construction Group Pty Ltd. The parties appeared before the State Administrative Tribunal in three separate proceedings. The Tribunal was required to determine whether the building works were carried out in a manner that was not proper and proficient or was faulty or unsatisfactory. If so, it was required to determine the appropriate form of the building remedy order and whether the owners were entitled to any compensation. The Tribunal found that the builder had carried out some of the building works in a manner that was not proper and proficient or was faulty or unsatisfactory. The Tribunal declined to make orders in relation to a number of items of complaint. It ordered the builder to remedy certain items and to pay compensation to the owners for the loss of amenity in relation to one item and for the cost of alternative accommodation while the roof was being remediated.

Orders