FITZGERALD and MERCEDES GROUP PTY LTD - [2024] WASAT 102

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   FITZGERALD and MERCEDES GROUP PTY LTD [2024] WASAT 102
MEMBER:   MR D AITKEN, SENIOR MEMBER
HEARD:   26 AUGUST 2024
DELIVERED          :   17 SEPTEMBER 2024
PUBLISHED           :   17 SEPTEMBER 2024
FILE NO/S:   CC 338 of 2024
BETWEEN:   VICTORIA FITZGERALD
MATTHEW FITZGERALD
Applicants
AND
MERCEDES GROUP PTY LTD
Respondent

Catchwords:

Building Services (Complaint Resolution and Administration) Act 2011 (WA) - Building service complaint - Application for leave to review decision of original Tribunal to dismiss complaint item regarding the installation of windows - Criteria for the grant of leave to review - Whether there is a discernible basis for the decision - Whether the decision was wrong or attended with sufficient doubt - Whether the applicants would suffer a substantial injustice if leave to review not granted - Whether the Tribunal has the power to order the extension of a warranty

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5(1), s 11(1)(d), s 36(1), s 36(1), s 36(1)(a), s 36(1)(b), s 36(1)(c), s 38, s 38(1)(a), s 43, s 58, s 58(2), s 58(5)
State Administrative Tribunal Rules 2004 (WA), r 10

Result:

Leave refused and application for review dismissed

Category: B

Representation:

Counsel:

Applicants	:	Mr S Kikiros
Respondent	:	Mr M Lang

Solicitors:

Applicants	:	Hotchkin Hanly Lawyers
Respondent	:	Lang Litigation and Construction Law

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

Filimon and Rimmer [2013] WASAT 13
Fitzgerald and Mercedes Group Pty Ltd [2024] WASAT 33
Gemmill Homes Pty Ltd v Sanders [2018] WASC 179
Jetpoint Nominees Pty Ltd and Lee [2021] WASAT 10
Myran Holdings Pty Ltd and Bombak [2013] WASAT 20
Total Investments Pty and Rapley Wilkinson Pty Ltd [2015] WASAT 29

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The applicants, Mr Matthew Fitzgerald and Ms Victoria Fitzgerald made a building service complaint (Complaint) to the Building Commissioner against the respondent, Mercedes Group Pty Ltd on 9 November 2021 under s 5(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) concerning building work carried out by the respondent in the construction of a house in South Perth (the house), which was completed on 19 November 2015.
The Building Commissioner referred the Complaint to the Tribunal on 30 September 2022 under s 11(1)(d) of the BSCRA Act.
Item 5 of the Complaint was stated as 'Window Warranty – Windows were installed incorrectly resulting in noticeable "humps" in double glazing spacers, which is visually obvious and could result in escape of the contained argon gas in the future along with condensation build up. Builder has replaced 7 glass panels' (window complaint).
During the conduct of the proceeding in the Tribunal building remedy orders were made by consent in respect of some of the complaint items and one complaint item was withdrawn.
The remaining eight complaint items, which included the window complaint, were determined by the Tribunal constituted by…

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: [2024] WASAT 102
Decision Date: 17 SEPTEMBER 2024

CaseChat Overview and Summary

Fitzgerald and Mercedes Group Pty Ltd applied for leave to review a decision of the original Tribunal which dismissed their complaint regarding the installation of windows. The application was heard in the Supreme Court of Western Australia. The central legal issues revolved around the criteria for granting leave to review a decision by the original Tribunal, specifically whether there was a discernible basis for the decision, whether the decision was wrong or attended with sufficient doubt, whether the applicants would suffer substantial injustice if the leave to review was not granted, and whether the Tribunal had the authority to order the extension of a warranty.

The court examined the original Tribunal's decision, focusing on the discernible basis for the dismissal of the complaint item. It assessed whether the Tribunal's decision was correct or sufficiently doubtful to warrant a review. The court also considered whether denying the applicants leave to review would result in substantial injustice, and if the Tribunal had the power to order the extension of a warranty. The applicants argued that the Tribunal's decision lacked a discernible basis and that the Tribunal erred in its interpretation of the law. The court found that there was a discernible basis for the decision and that the applicants did not meet the criteria for leave to review. Additionally, the court concluded that the Tribunal did not have the power to order the extension of a warranty.

Consequently, the application for leave to review was dismissed. The court ruled that the Tribunal's decision was based on a discernible basis, was not wrong or attended with sufficient doubt, and that the applicants would not suffer substantial injustice if the leave to review was not granted. Furthermore, the court affirmed that the Tribunal lacked the power to order the extension of a warranty.

Orders