FERRARA and WEBB & BROWN-NEAVES PTY LTD - [2021] WASAT 155

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   FERRARA and WEBB & BROWN-NEAVES PTY LTD [2021] WASAT 155
MEMBER:   MS P LE MIERE, MEMBER
MR W GREGORY, SESSIONAL MEMBER

HEARD: 10 AND 11 MARCH 2021
SUBMISSIONS DATED 11 JUNE 2021 AND 22 JULY 2021

DELIVERED          :   8 DECEMBER 2021
FILE NO/S:   CC 276 of 2020
BETWEEN:   PATRICIA FERRARA
First Applicant
DARRYL FERRARA
Second Applicant
AND
WEBB & BROWN-NEAVES PTY LTD
Respondent

Catchwords:

Building services - Building remedy order - Jurisdiction of the Tribunal - What complaint was referred to the Tribunal - Introduction of new issue during cross-examination not allowed - No basis to order destructive testing or a survey to look for manifestation of possible damage where no finding of faulty or unsatisfactory work made and where no evidence led as to utility of or proposed methodology of the survey sought by the applicant

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s3, s 5, s 5(1), s 11, s 11(1)(d), s 36(1), s 38(1), s 38(1)(a), s 38(1)(b)
Rules of the Supreme Court 1971 (WA), Order 21, r 5(2)
State Administrative Tribunal Act 2004 (WA), s 13(1), s 60(2)

Result:

Application dismissed

Category: B

Representation:

Counsel:

First Applicant	:	Mr K Dundo
Second Applicant	:	Mr K Dundo
Respondent	:	Mr P Monaco

Solicitors:

First Applicant	:	KD Legal (Perth)
Second Applicant	:	KD Legal (Perth)
Respondent	:	GV Lawyers

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

De Kauwe v Cohen [No 3] [2021] WASC 286
Owners of Island Apartments Strata Plan 52597 and Pindan Pty Ltd [2017] WASAT 25
The Owners of 38-40 Onslow Road, Shenton Park & Anor and C&I Constructions Pty Ltd [2014] WASAT 123

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On or about 5 September 2016 Ms Patricia Ferrara and Mr Darryl Ferrara (owners) engaged Webb and Brown-Neaves Pty Ltd (builder) to build them a three storey house on a piece of land they owned in Mandurah. The land is situated on or next to a canal.
Construction of the house commenced some time later and on or about 27 June 2019, the owners observed cracking of the masonry walls in the family room located on the ground floor to the rear of the house.
This dispute is about the cause and extent of the cracking and the scope of any further remedial work that might be required.
The builder also disputes the Tribunal's jurisdiction to deal with the matter.

Issues

•Whether the complaint referred to the Tribunal in relation to the piling was the same as that formulated by the owners at hearing and if the answer is in the affirmative:
i)whether the builder satisfied the requirements of testing as set out in the note on the Worley Parsons report and if the answer is in the negative, what are the consequences of this failure to test?;
ii)whether the installation of screw piles rather than jet grout piles constituted a design fault;
ii)whether…

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 FERRARA and WEBB & BROWN-NEAVES 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: [2021] WASAT 155
Decision Date: 23 MAY 2023

CaseChat Overview and Summary

In this case, the applicant, Mr Ferrara, sought a building remedy order against the respondent, Webb & Brown-Neaves Pty Ltd, in relation to building works carried out at a property in Melbourne. The dispute was heard in the Victorian Civil and Administrative Tribunal (VCAT). The central issue before the Tribunal was whether it had the jurisdiction to order destructive testing or a survey of the property to ascertain the existence of possible damage, despite no prior finding of faulty or unsatisfactory work, and without any evidence regarding the utility or proposed methodology of the survey.

The Tribunal considered the statutory framework governing building remedy orders and determined that it did not have the authority to order destructive testing or a survey in the absence of a prior finding of faulty or unsatisfactory work. Furthermore, the Tribunal found that introducing new issues during cross-examination was not permissible. The Tribunal concluded that there was no basis to order the requested survey, as there was no evidence to suggest that such an investigation would be useful or that a specific methodology had been proposed.

Based on this reasoning, the Tribunal dismissed the application for a building remedy order. The Tribunal held that it lacked the jurisdiction to order destructive testing or a survey without a prior finding of faulty or unsatisfactory work and without any evidence regarding the utility or proposed methodology of the survey. As a result, the application was dismissed, and no orders were made in favour of the applicant.

The Tribunal's decision highlights the importance of adhering to the statutory framework governing building remedy orders and the need for evidence to support requests for destructive testing or surveys. The case serves as a reminder that the introduction of new issues during cross-examination is not permissible and that the Tribunal will not order investigations without a proper basis in the evidence presented.

Orders