GALLUCIO and PHILLIP JOHN EDMAN TRADING AS WA CABINETS
[2012] WASAT 89
•4 MAY 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)
CITATION: GALLUCIO and PHILLIP JOHN EDMAN TRADING AS WA CABINETS [2012] WASAT 89
MEMBER: JUSTICE J A CHANEY (PRESIDENT)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 4 MAY 2012
FILE NO/S: CC 1584 of 2011
CC 138 of 2012
BETWEEN: ROBERT GALLUCIO
Applicant
AND
PHILLIP JOHN EDMAN TRADING AS WA CABINETS
Respondent
Catchwords:
Building - Current proceedings - Limits to State Administrative Tribunal jurisdiction - Whether order that proceedings are current proceedings is appropriate
Legislation:
Buidling Services (Complaint Resolution and Administration) Act 2011 (WA), s 7, s 9, s 11, s 51, s 133, s 134, s 134(1)(a), s 134(2)
Builders' Registration Act 1939 (WA), s 33A
Result:
Order made that respective proceedings are current proceedings
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Self-represented
Solicitors:
Applicant: Self-represented
Respondent: Self-represented
Case(s) referred to in decision(s):
Capone and Ennis Construction Pty Ltd [2012] WASAT 21
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Certain proceedings had been referred to the State Administrative Tribunal by the Building Commissioner. The proceedings had been transferred from the then Building Disputes Tribunal to the Commissioner under the transitional provisions of the Building Services (Complaint Resolution and Administration) Act 2011 (WA). Subsequently, fresh proceedings initiated with the Building Commission, intrinsically linked with the other proceedings, were also transferred to the Tribunal.
The President of the Tribunal determined that, in the particular circumstances of both proceedings it was appropriate that there be orders that the proceedings are 'current proceedings', with the result that they are to be referred back to the Building Disputes Tribunal for resolution.
Background
These matters concern the installation by the respondent (builder) of a kitchen, and specifically benchtops, cupboards and drawers, for the applicant (owners) at his home in Winthrop.
On 29 November 2010, the owner filed a complaint with the Building Disputes Tribunal (BDT), in which the owner raised by way of a workmanship complaint an allegation about the joints on the kitchen benchtop.
According to a building inspection report dated 6 April 2011, the complaint related to the imperfection on the surface of the kitchen worktop laminate and the premature deterioration of the vinyl wrap drawer and door fronts. The inspector made recommendations that the builder undertake remedial work in both cases.
On 21 April 2011, Order to Remedy No 233/201011 was made by a registrar of the BDT pursuant to s 33A of the Builders' Registration Act 1939 (WA). The order to remedy required the builder to remedy both the kitchen worktop and the drawers and doors of the kitchen cabinets in accordance with the inspector's report, with the order to be complied with within 28 days of its date.
On 26 September 2011, the owner requested that the order to remedy be converted to an order to pay in light of the builder's alleged failure to comply with the order to remedy.
On 4 October 2011, the Building Commission accepted the complaint pursuant to s 7 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BS Act) and determined that the complaint be referred to the Tribunal pursuant to s 11 of the BS Act.
On 31 October 2011, the matter (CC 1584 of 2011) came on for a directions hearing in the Tribunal, when it was listed for final hearing on 22 December 2011.
On 22 December 2011, the hearing was adjourned part heard to a date to be fixed, in order for the owner to file a new complaint regarding more extensive alleged problems with the bench top and cabinets that formed the basis of the order to remedy.
On 23 December 2011, the owner lodged a new complaint with the Building Commission. On 24 January 2011, the new complaint was accepted by the Building Commission and referred to the Tribunal for determination.
On 29 February 2012, both matters (CC 1584 of 2011 and CC 138 of 2012) came on for a directions hearing in the Tribunal, when the matters were consolidated, directions were made for reinspection by the inspector who prepared the first report, and the consolidated matter was listed for hearing on 27 April 2012.
On 3 February 2012, the Tribunal published its decision Capone and Ennis Construction Pty Ltd [2012] WASAT 21 (Capone) in which the President of the Tribunal confirmed that where, as in the present matter, an order to remedy was made by the BDT and a party seeks an order to pay in consequence of the other party's noncompliance with the order to remedy, the Tribunal is not empowered to make such an order, and that the matter should properly be redirected to the BDT. This is possible through the mechanism of an order that a proceeding is a current proceeding.
On 27 April 2012, when the consolidated matter came on for hearing, the effect of the Capone decision was explained to the parties. The parties were asked whether they consented to the matter being referred to the President for an order that the matter be treated as a current proceeding. Whilst the owner was prepared to consent to such an order, the builder was not.
Legislative framework
Since 29 August 2011 (commencement day), jurisdiction in building complaints concerning both poor workmanship and contractual claims, formerly vested in the BDT, was bestowed, in the first instance, on the Building Commissioner. Having decided to accept the application (as to which see s 7 of the BS Act), and subsequent to an investigation of the complaint being conducted (s 9 BS Act), the Building Commissioner has the options of dismissing the complaint, dealing with it itself by conciliation or determination, or referring the complaint to the Tribunal (s 11 BS Act).
The position regarding proceedings already commenced in the BDT prior to the commencement day is that, generally speaking, they were transferred on that day to the Building Commissioner by operation of s 133 of the BS Act. An exception exists however, in relation to any 'current proceeding', which is the subject of s 134 of the BS Act, which provides:
(1)In this section -
current proceeding means -
(a)a proceeding in respect of which a hearing has commenced before the former Tribunal, but which has not been concluded before the former Tribunal; or
(b)a proceeding in respect of which an order is made under subsection (2);
proceeding means -
(a)a proceeding to deal with a complaint under section 12A of the repealed Act; or
(b)a proceeding to deal with an application under the Home Building Contracts Act 1991,
but does not include a proceeding of an interlocutory or procedural nature.
(2)The State Administrative Tribunal constituted by the President of the Tribunal sitting alone may, on its own initiative or on the application of a party, order that a proceeding is a current proceeding for the purposes of this section.
(3)A current proceeding is to be dealt with and determined in accordance with the relevant provisions of the repealed Act and the Home Building Contracts Act 1991 as in force immediately before commencement day.
(4)For the purposes of dealing with a current proceeding the former Tribunal is to continue as constituted under the repealed Act immediately before commencement day.
On 13 December 2011 (in the case of the builder's claim) and on 14 December 2011 (in the case of the owners' claim), the Building Commissioner advised the applicant in each case of the acceptance by the Building Commissioner of each respective complaint under s 7 the BS Act, and of its referral to this Tribunal pursuant to s 11 of the BS Act.
Are orders under s 134(2) appropriate?
There is no suggestion that either claim brought by the owner is a current proceeding within part (a) of the definition of that expression in s 134. The consolidated matter has been referred to me for consideration as to whether I should, pursuant to s 134(2), make orders that the claim is a current proceeding. The effect of such an order would be that the proceedings would be dealt with and determined by the BDT, in accordance with the relevant legislation in force immediately preceding the commencement day.
The immediate and obvious factor in favour of my making a s 134(2) order concerns the owner's original complaint in respect of which an order to remedy was made, which the owner claims has not been complied with. Under the legislation as it existed both before and after the commencement day, the only recourse available is revocation of the order to remedy and for an order for payment of money to be made (under the Builders Registration Act 1939 (WA)), an order to pay, and under the BS Act, an order to pay or an order for compensation). However, s 51 of the BS Act makes clear that this Tribunal is empowered to make such an alternate order only in respect of building remedy orders made by it.
Were the owner's application to remain in this Tribunal, the Tribunal would be unable to deal with a substantial part of the consolidated matter. Further, although the Tribunal could technically deal with the new complaint, this would be wholly inappropriate given that the new complaint is in essence an extension of the original complaint.
The result is that the best way forward is for the whole of the consolidated matter to, in effect, be transferred back to the BDT. As I have mentioned, the mechanism to enable this is by an order under s 134(2), and I will make such an order in relation to both complaints giving rise to the consolidated proceeding.
It is regrettable that the effect of the Capone decision was not appreciated at the time the consolidated matter was listed for final hearing. Having said that, however, it is the result of the legislative provisions to which I have referred that any proceeding which is not a current proceeding within s 134(1)(a) of the BS Act must be referred to the Tribunal first before it is redirected to the BDT where that is called for. This applies in this case to both of the individual proceedings.
Orders
Pursuant to s 134(2) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) it is ordered that:
1.The proceeding in the Building Disputes Tribunal No O20207/01 between Robert Gallucio and Phillip John Edman Trading As WA Cabinets is a current proceeding.
2.The proceeding in the Building Commission No BC1247/11 between Robert Gallucio and Phillip John Edman Trading As WA Cabinets is a current proceeding.
I certify that this and the preceding [23] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J A CHANEY, PRESIDENT
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