Gemmill Homes Pty Ltd v Sanders

[2018] WASC 179

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   GEMMILL HOMES PTY LTD -v- SANDERS [2018] WASC 179

CORAM:   SMITH AJ

HEARD:   19 MARCH 2018

DELIVERED          :   19 JUNE 2018

FILE NO/S:   GDA 13 of 2017

BETWEEN:   GEMMILL HOMES PTY LTD

Appellant

AND

GEOFFREY FRANK SANDERS

Respondent

ON APPEAL FROM:

Jurisdiction              :   STATE ADMINISTRATIVE TRIBUNAL

Coram:   SENIOR MEMBER C RAYMOND

SENIOR SESSIONAL MEMBER R AFFLECK

Citation:   GEOFFREY FRANK SANDERS AND GEMMILL HOMES PTY LTD

File Number             :   CC 1205 of 2016

Catchwords:

Appeal from State Administrative Tribunal - Whether Tribunal empowered to make or revoke a trial order - Effect of a trial order - Validity of a trial order - Power of the Tribunal to correct an order made without power

Appeal from State Administrative Tribunal - Statutory construction - Whether a complainant has the right to elect a remedy - Whether the Tribunal erred in referring to a right to elect a remedy - Error not vitiating - Whether Tribunal impermissibly fettered discretion

Appeal from State Administrative Tribunal - Statutory construction - Meaning of specify - Whether Tribunal failed to specify how service is to be remedied

Appeal from State Administrative Tribunal - Matters Tribunal obliged to consider when making a building order - Whether Tribunal should only refuse a remedy order if the relationship of the parties has irretrievably broken down - Relationship had not irretrievably broken down

Appeal from State Administrative Tribunal - Whether Tribunal took into account an irrelevant consideration - Whether consideration of a further complaint irrelevant

Legislation:

Builders' Registration Act 1939 (WA), s 12A, s 12A(1a)(b)
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(1), s 5(1)(a), s 5(2), s 9(1), s 10, s 11, s 11(1)(d), s 30(1)(a), s 30(1)(b), s 30(1)(c), s 32(2), s 34(1), s 36, s 36(1), s 36(1)(a), s 36(1)(b), s 36(1)(c), s 37, s 38, s 38(1), s 38(1)(a), s 42, s 43, s 51, s 51(2), s 58, s 58(2)
Building Services (Complaint Resolution and Administration) Regulations 2011 (WA), reg 5
Companies (Western Australia) Code (WA), s 291(3), s 292(2)(a)
Home Building Contracts Act 1991 (WA), s 17, s 20, sch 1 cl 5
State Administrative Tribunal Act 2004 (WA), s 54(8), s 105

Result:

Appeal allowed in part

Category:    B

Representation:

Counsel:

Appellant	:	Mr A K Sharpe
Respondent	:	Mr G R Dean

Solicitors:

Appellant	:	GV Lawyers
Respondent	:	Bostock & Ryan

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

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613

Bond Corporation Holdings Ltd v Sulan (1990) 3 WAR 49

Centrex Australasia Pty Ltd v Commissioner for Consumer Protection [2017] WASCA 79

Dekker v Medical Board of Australia [2014] WASCA 216

Duro Felguera Australia Pty Ltd v Samsung C&T Corporation [2018] WASCA 28

Erujin Pty Ltd v Jacob [2017] WASC 35

Field Deployment Solutions Pty Ltd v SC Projects Australia Pty Ltd [2015] WASC 60

Giudice v Legal Profession Complaints Committee [2014] WASCA 115

Hughes v Dormley Pty Ltd as Trustee for the Poll Family Trust [2001] WASC 83

Jacob v Save Beeliar Wetlands (Inc) [2016] WASCA 126

Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61

Kruger v The Commonwealth of Australia (1997) 190 CLR 1

Laing O'Rourke Australia Construction Pty Ltd v Samsung C&T Corporation [2015] WASC 237

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Minister for Immigration & Citizenship v Lai (2013) 249 CLR 332

Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597

Mustac v Medical Board of Western Australia [2007] WASCA 128

Nelson v Mardesic (1999) 22 SR (WA) 42

Osland v Secretary, Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320

Presiding Member of the Southern Development Assessment Panel v DCSC Pty Ltd [2018] WASC 145

Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252

Salemi v MacKellar [No 2] (1977) 137 CLR 396

Sanders and Gemmill Homes Pty Ltd [2017] WASAT 41

Sargent v ASL Developments Ltd (1974) 131 CLR 634

Sean Investments Pty Ltd v MacKellar (1981) 3 ALN N102; (1981) 38 ALR 363

State of Victoria v Sutton (1998) 195 CLR 291

Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93

Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8; (2009) 236 CLR 272

The Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304

TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175

Trengove and Celebration Nominees Pty Ltd [2012] WASAT 65; (2012) 80 SR (WA) 77

Tulloh v Chief Executive Officer of the Department of Corrective Services [2018] WASC 105

Yao-Jing v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275

Table of Contents

1.0  Background

2.0  Exercise of original jurisdiction of the Tribunal - first hearing of the building service complaint (heard together with the contract complaint)

3.0  Application for leave to review the payment order made by Member Leslie

4.0 Earlier decisions of tribunals in Western Australia on building remedy orders

5.0 Decision of the Tribunal on the review

5.1  Issue 1 ‑ appropriate remedial method

5.2  Issue 2 ‑ appropriate form of building remedy order and Issue 4 ‑ the effect of the mediation orders

5.3  Issue 3 ‑ the amount of any monetary award

5.4  Conclusion and orders

6.0 The appeal to the court instituted under s 105 of the SAT Act

7.0  Are questions of law raised in the appeal and should leave be granted?

8.0  Grounds 6 to 9 of the grounds of appeal - is the 'trial' order and the order to revoke the 'trial' order valid?

9.0  Grounds 1 to 3 of the grounds of appeal

9.1  The practice of comity

9.2  Does a complainant have a right to elect a remedy? - The proper construction of the statutory discretion to make a building remedy order

9.3  Did the Tribunal err in referring to a complainant being entitled to elect a remedial work order or a monetary order?

10.0 Ground 4 ‑ did the Tribunal take into account an irrelevant consideration?

11.0  Ground 5 ‑ did the Tribunal fail to specify in its order how the regulated building service remedy is to be effected?

SMITH AJ:

1.0  Background

1. In 2010, Gemmill Homes Pty Ltd entered into a contract with Geoffrey Frank Sanders to build a home for Sanders in Embleton.  The home was built and practical completion was reached in mid‑2012.

2. On 7 April 2014, Sanders made a complaint to the Building Commissioner by filing a building complaint form pursuant to s 5(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (Complaint Resolution Act). A complaint can be made under s 5(1) to the Building Commissioner about work not being carried out in a proper and proficient manner or being faulty or unsatisfactory.

3. Sanders' complaint form listed two complaints:

   1.Cornice, ceiling and plaster cracking throughout the house.

   2.Plumbing delivers hot water to all cold water taps due to routing in hot ceiling space.[1]

   [1] Document book, page 5.

4. These complaints are referred to in these reasons as the building service complaint.  The complaint was referred to the State Administrative Tribunal by the Building Commissioner.[2]

   [2] Complaint Resolution Act, s 11(1)(d) empowers the Building Commissioner to refer a complaint to the Tribunal to deal with under s 38 or s 43 of the Complaint Resolution Act.

5. On 26 August 2014, the complaint was listed for mediation.[3]

   [3] Document book, page 8.

6. On 16 September 2014, Member Carey made orders adjourning the mediation to 16 February 2015 on the basis that the parties would undertake the steps outlined in the following order:[4]

   [4] Document book, pages 9 ‑ 10.

   2.The respondent shall by 31 October 2014 undertake the following trial:

   A  Activity room/Family room

   The respondent is to effect the following works to the cornices affixed to all walls of the activity room and the north wall and east return of the family room:

   (a)        Cut line to underside of cornice.

   (b)        Make good any damage to set coat.

   (c)Apply fibreglass/plaster grout to backs of cornice against wall plate and top of wall.

   (d)Make good all affected areas.

   B  Theatre room

   (a)Repair 4 x cracked corners to coffered ceiling.

   (b)        Make good all affected areas.

   3. The parties shall by 31 January 2015 undertake a joint inspection.

   4.The applicant shall take measurements of temperatures of cold water emissions from the front tap and appropriate locations in the house, recording time, external temperature and temperature in the roof space.

   5.The applicant shall by 31 January 2015 provide the respondent with a report of water temperatures recorded.

7. After further consideration, the parties agreed that the 'trial' specified in order 2 could not be carried out.  This was because the lower of the two ceilings of the activity and family room are affixed to joints.  The joints are in turn fixed to a plate anchored to the common wall between the activity and family rooms so that the fibreglass, plaster grout or scrim could not be applied.[5]

   [5] ts 15 August 2017, page 5; document book, page 221.

8. On 27 November 2014, Member Carey ordered that:[6]

   1.The mediation is terminated.

   2.The provisions of paragraphs 2, 3, 4 and 5 of the order made 19 September 2014 have lapsed or are revoked as appropriate.

   [6] Document book, page 12.

9. By a letter dated 21 May 2015, Sanders wrote to the Building Commission stating he also wished to make a complaint pursuant to s 5(2) of the Complaint Resolution Act, that Gemmill Homes had failed to comply with the home building work contract (the contract complaint). The contract complaint was referred to the Tribunal and also concerned cornices.

10. It was common ground that:[7]

    (a)item 20 of the home building work contract specification provided that cornices shall be affixed in accordance with the manufacturer's specifications; and

    (b)the cornices are gyprock and that the CSR specification was applicable.

    [7] ts 12 July 2016, page 4; document book, page 18.

11. Sanders claimed that the method of installation was in breach of contract by reason of the cornices being attached to the white set coat rather than to the grey float coat that is underneath, contrary to the requirements of the Australian Standards and the CSR specification.[8]

    [8] ts 12 July 2016, page 4; document book, page 18.

12. The contract complaint was consolidated with the building service complaint and referred to the Tribunal for hearing.

2.0  Exercise of original jurisdiction of the Tribunal - first hearing of the building service complaint (heard together with the contract complaint)

1. Following a hearing on 14 March 2016 before Member Leslie, the Tribunal reserved its decision.

2. On 12 July 2016, Member Leslie delivered a decision:

   (a)dismissing the plumbing complaint;

   (b)dismissing the cornice complaint insofar as it was based in contract; and

   (c)concluding that there was fault with the cracking and plaster shear that should be rectified.

3. Member Leslie made the following findings in so far as the complaints related to the cornices:[9]

   (a)The evidence given on behalf of Gemmill Homes by witnesses Mr Harrison and Dr Zurhar is preferred to the evidence of that of Mr Mogg (Sanders' witness) where there is a difference of view.

   (b)It is not accepted that Gemmill Homes is in breach of contract by reason of having affixed the cornices to the set coat.

   (c)It is accepted that the cracking in plaster shear present in Sanders' home is a result of movement and settlement in the house during and after the building period.  Such cracks are to be expected as part of the building process.  Given the evidence of Mr Harrison, the cracking may have been exacerbated by expansions and contractions within the building by reason of the extremes of heat that had been present in the roof space for reasons raised in dealing with the cold water issue.

   (d)It is not possible for the Tribunal to determine the extent to which the choices made, or not made, by Sanders in relation to the roof space heat issue may have contributed to the plaster issue.  Gemmill Homes has always been prepared to make good the plaster issue matters as part of its contractual obligations to Sanders, including its defects period obligations, or similar, and the Tribunal takes a view that it should do so.

   (e)It is not reasonable for Sanders to be left with a house that is affected by cracking and plaster shear in the way that the house is.  These are faults and they should be rectified.

   (f)The argument made on behalf of Gemmill Homes that an order to pay should be made is accepted.  In view of the evidence from both sides, there has been a significant breakdown in the relationship between the parties, such that it would be impossible now for Gemmill Homes to be able to satisfy Sanders' expectations on any remedial works.

   (g)A third party should undertake the remedial works at Gemmill Homes' cost.

   (h)Sanders' request for a work order is refused.  As to work to be performed, the remedial method recommended by Mr Mogg is rejected.  All three experts agree that Mr Harrison's proposed scope of works is a satisfactory way of remediating the plaster issues.

   [9] ts 12 July 2016, page 22; document book, page 36.

4. Member Leslie ordered Gemmill Homes pay Sanders $15,305.40 within 28 days of the date of the order.[10]  An order was also made to dismiss the contract claim.

   [10] Pursuant to Complaint Resolution Act s 36(1)(b), ts 12 July 2016, page 23; document book, page 37.

3.0  Application for leave to review the payment order made by Member Leslie

1. Sanders subsequently filed an application pursuant to s 58 of the Complaint Resolution Act seeking leave to review the orders made by Member Leslie. The application for leave to review was heard by Senior Member Wallace on 20 February 2017.

2. On 8 March 2017, Senior Member Wallace found that Member Leslie had not erred in dismissing the contract complaint, the plumbing complaint or the hot water complaint (of the building service complaint).[11]  However, Senior Member Wallace found that Member Leslie had erred in exercising the discretion to make a monetary order (in respect of the cornices building services complaint) rather than a remedial (work) order in favour of Sanders by:[12]

   (a)failing to take into account and give weight to Sanders' desire 'to elect' a remedial order; and

   (b)not giving adequate weight to the fact that the usual order that follows the usual circumstances of a finding of faulty and/or unsatisfactory work is an order requiring the respondent to remedy its own work given the advantages afforded to both parties by a remedial (work) order are not afforded to them by the making of a monetary order.

   [11] Sanders and Gemmill Homes Pty Ltd [2017] WASAT 41.

   [12] Sanders and Gemmill Homes Pty Ltd [2017] WASAT 41 [33].

3. Senior Member Wallace also found that Member Leslie erred in:[13]

   (a)giving too much weight to the breakdown in the relationship between the parties, in absence of a finding of a complete lack of confidence by Sanders in the workmanship of Gemmill Homes which would ordinarily be the case in a dispute of this nature;

   (b)not finding such breakdown to be irretrievable, or at a stage where to compel Gemmill Homes to return (to the home to provide building service) would have inevitably resulted in an ongoing dispute between the parties; and

   (c)giving weight to the fact that Sanders did not agree with Gemmill Homes' proposed remedial approach.

   [13] Sanders and Gemmill Homes Pty Ltd [2017] WASAT 41 [33].

4. Senior Member Wallace found that a substantial injustice would be suffered if the original decision in respect of the monetary order was left unreversed.[14] The Senior Member therefore granted leave to review, limited to the question as to what remedy order is appropriate to be made in favour of Sanders.[15]  Otherwise leave to review the decision was refused.

   [14] Sanders and Gemmill Homes Pty Ltd [2017] WASAT 41 [34].

   [15] Sanders and Gemmill Homes Pty Ltd [2017] WASAT 41 [35].

4.0 Earlier decisions of tribunals in Western Australia on building remedy orders

1. The general principles applied by Senior Member Wallace in the decision to grant leave to review, by Member Leslie and the Tribunal in the decision on the review of the decision made by Member Leslie (the decision the subject of this appeal), are principles enunciated and considered in Nelson v Mardesic[16] and in Trengove and Celebration Nominees Pty Ltd.[17]  It is important in this appeal to set out these principles and to consider the basis upon which the principles were formulated to determine whether the Tribunal on the review of the decision of Member Leslie erred in law as alleged in grounds 1 to 3 of the grounds of appeal.

   [16] Nelson v Mardesic (1998) 22 SR (WA) 42.

   [17] Trengove and Celebration Nominees Pty Ltd [2012] WASAT 65; (2012) 80 SR (WA) 77.

2. In Nelson, the Building Disputes Tribunal of Western Australia was empowered to make a building remedy order if satisfied that any building work had not been carried out under proper and workmanlike manner by reason that the building work is faulty or unsatisfactory.[18]  Upon forming the requisite opinion, the Building Disputes Tribunal was conferred with a discretion to make an order that the person who carried out the building work:[19]

   (a)remedy the fault to be faulty or unsatisfactory building work; or

   (b)pay to the owner of the building such costs as remedying the building work that is faulty or unsatisfactory as the Building Disputes Tribunal considers reasonable.

   [18] Builders' Registration Act 1939 (WA) s 12A.

   [19] Builders' Registration Act 1939 (WA) s 12A.

3. One of the members of the Building Disputes Tribunal in Nelson was Deputy Chairman Raymond, who also comprised one of the members of the Tribunal on the review of the decision made by Member Leslie in this matter.

4. Whilst building service complaints may be instituted under s 5(1)(a) of the Complaint Resolution Act by a person who is not in a contractual relationship with the person who provides the services, it is notable that the principles enunciated and applied in Nelson were in part drawn from the available remedies in common law that apply to maintenance and defects liability clauses in building contracts.

5. In determining whether a building remedy order should be made, in Nelson the Building Disputes Tribunal observed the starting point was to first consider the effect of remedies at common law during periods of maintenance and defects liability periods.  They said:[20]

   It is helpful to examine the nature of the maintenance or defects obligation.  In Cassidy v Engwirda Construction Company (No 2) [1968] Qd R 159 at 166, Hoare J adopted as correct a proposition advanced in Hudson's Building and Engineering Contracts (9th ed 1965) pp 285-288 that in the absence of express provision in the contract, the remedies under maintenance or defects liability clauses are in addition to and not in substitution for common law rights and that even where the defects have appeared within the defects liability period, the employer may sue for damages rather than call on the contractor to do the work subject to the damages being limited to the cost to the contractor doing the work at that time, rather than the possibly greater cost of bringing in another contractor either then or at a later date.

   Cassidy's case has been followed in various decisions of the Queensland Building Tribunal, for example:  see Jaremus Peter v Raffaele Renato and Sharon, C 430-96/12 May 1997.  In the 9th and 10th editions of Hudson the above principle was restated ((10th ed 1970) p 394, (11th ed) par 5-050 ff).  In both editions, the learned author recognised that the effect of the clause is to confer a right both on the owner and the builder, but in the later edition, the learned author criticised a conclusion reached in P & M Kaye Ltd v Hosier & Dickinson [1972] 1 WLR 146 at 166 to the effect that it is a necessary implication from the particular clause under consideration that the employer cannot, as he otherwise could, recover as damages from the contractor the difference between the value of the works if they had been constructed in conformity with the contract and their value in their defective condition, without first giving the contractor the opportunity of making good the defects.

   The learned author (at 5-051) stated that the above confirmed a submission made in the 10th ed based on either the failure to mitigate, or on the view taken up in Kaye's case that the failure to give the contractor the opportunity to remedy would be a breach of contract. Then in respect of the breach of contract approach said:

   'It is suggested however, that this latter view fails to take account of the not uncommon case of an owner who, by reason of a past history of unsatisfactory work or dilatoriness, may have reasonably lost confidence in the contractor's willingness or ability to remedy the defects satisfactorily, and who therefore reasonably prefers to bring in another contractor.  The needs of that situation would be better met, it is submitted, by founding any contractor's entitlement to seek a reduction of damages on the owner's unreasonable failure to mitigate damage, if that could be shown, rather than upon a right to damages of the contractor in such a case.  Since explicit language is rarely used in the clauses on this particular point, it is submitted that the courts should, notwithstanding Lord Diplock's dictum, be slow to imply a term that the contractor will in all cases have an unqualified right to re-enter and remedy defects himself for breach of which damages would be recoverable from the owner.'

   [20] Nelson v Mardesic (1999) 22 SR (WA) 42, 47.

1. Importantly, the Building Disputes Tribunal posed the question, what is the position in relation to defects arising after the defects liability period when there is no contractual basis upon which a builder can assert any right to be afforded the opportunity to carry out remedial work?  In answer to this question, they set out a number of principles that had been consistently applied by the Building Disputes Tribunal in the past.  These can be summarised as follows:[21]

   (a)The general practice has been to grant an order to remedy in preference to an order to pay on the basis that the more appropriate remedy is that which puts the innocent party in the position it would have been in had the contract been properly performed without unnecessarily burdening the party in breach.

   (b)There is good reason to adhere to that practice, subject to some qualifications.  If it is accepted that the builder should not be in a different position during the defects liability period, why should that also not be the case in relation to a defect which arises only after the defects liability period has expired, whether raised by an issue or a subsequent owner?

   (c)If, as suggested in Hudson's Building and Engineering Contracts (11th ed) the better jurisprudential basis for concluding that an owner's claim for damages for defects arising during the defects liability period could be reduced where the builder has not had the opportunity to carry out the work is founded on the duty to mitigate, that is a duty which applies at any time.

   (d)There is authority for the principle (in the law of contract) that if the party in breach either offers or evinces a willingness to provide substituted performance, the innocent party must act reasonably.  In the law of contract, the duty to mitigate may not extend this far as a party is entitled to exercise his right to performance of a contract, despite the other repudiation.

   (e)Where an application is brought for a building remedial order under s 12A of the Builders' Registration Act 1939 (WA), the owners are entitled to enforce statutory remedies and do not have to enter into a contract. Consequently, whether the duty to mitigate extends to acting reasonably does not arise. It is therefore not necessary to go any further than to accept the proposition that an owner is under a duty to mitigate his damages by reason that the owner has the right under the statute to seek an order to remedy but has elected not to do so and has thereby failed to mitigate the damages.

   [21] Nelson v Mardesic (1999) 22 SR (WA) 42, 48 ‑ 49.

2. After considering these principles, the Building Disputes Tribunal found:[22]

   In our view the following principles should be applied in determining whether or not to grant an order to remedy or an order to pay under s 12A.

   1.The relationship between the parties should be taken into consideration.  It is relevant whether the owner has lost all confidence in the builder and whether or not that view is justified.  It is relevant whether or not the owner has so conducted himself towards the builder that the builder would find it difficult to perform the remedial work.

   2.Ultimately, it is not possible to force a remedy upon the party entitled to it.  If an owner unreasonably refuses to permit the builder to carry out remedial work or insists upon an order to pay, the owner should be entitled to an order to pay but limited to what it would cost the builder to carry out the remedial work.

   3.Paragraph 2 applies in respect of a defect raised during or subsequent to the maintenance or defects liability period and whether raised by the initial owner or any subsequent owner, except where relief is sought under subs 12A(la)(b) where only the owner for whom the building work was carried out can seek an order to pay.

   4.Each case must of necessity be determined on its own facts.

   [22] Nelson v Mardesic (1999) 22 SR (WA) 42, 49.

3. The Building Disputes Tribunal also observed that there was nothing in s 12A of the Builders' Registration Act or the Home Building Contracts Act 1991 (WA) which expressly empowers the Building Disputes Tribunal to order an owner (or the person who at any particular time has the right of control entry to a property) to allow entry to the person bound by an order to remedy fault in unsatisfactory building work. Thus, if an owner conveyed an intention to refuse access to a site, the ordering of remedial work was effectively foreclosed and the making of a money order was then the only remedy available under s 12A.[23]

   [23] Nelson v Mardesic (1999) 22 SR (WA) 42, 46.

4. In Nelson, the owners did not wish the builder to return to the site, as they had lost all confidence in the builder and it was obvious, as far as they were concerned, that the builder was not competent to carry out the work.  A building inspector had also given evidence before the Building Disputes Tribunal that the standard of the builder's work was of a standard that he would not accept and it was his recommendation that the outstanding remedial work be carried out by another builder.

5. After having regard to this evidence, the Building Disputes Tribunal in Nelson found that the builder had not discharged the onus of establishing that the owners were acting unreasonably in insisting upon an order to pay.  They also found that the owners had elected to seek an order to pay and they were entitled to it.  It was the view of the Building Disputes Tribunal that it could not compel an owner to elect a particular remedy.

6. The Building Disputes Tribunal observed that if the builder had demonstrated that the owners were acting unreasonably in insisting on a payment order, the reasonable costs to which the owners would be entitled under s 12A(1a)(b) would be the cost to the builder of carrying out that remedial work, however that was not the case on the evidence before it. The Building Disputes Tribunal in Nelson made a payment order assessed at the cost of another builder to carry out the remedial work.

7. In Trengove,[24] Mr and Mrs Trengove made a number of workmanship complaints about their house which was built by Celebration Nominees Pty Ltd.  They sought an order to remedy and maintained that they had faith in Celebration Nominees Pty Ltd's ability to perform remedial works to their satisfaction.  However, Celebration Nominees Pty Ltd sought an order to pay on grounds of an irretrievable breakdown in the relationship between the parties and were willing to pay the costs of a third party performing the remedial work.

   [24] Trengove and Celebration Nominees Pty Ltd [2012] WASAT 65; (2012) 80 SR (WA) 77.

8. The single issue for determination for the Tribunal in Trengove, as in this appeal, was what was the appropriate remedy in the circumstances of the case.  The Tribunal expressed the view that it could be guided by the factors set out in Nelson and made the following observations:[25]

   (a)At the heart of the issue as to what order is appropriate is the question as to whether the relationship between the parties has irretrievably broken down.  The fact that it is the builder asserting that the relationship has broken down does not matter.  The principles equally apply whether it is a builder or an owner making the assertion.  This is an important consideration for a number of obvious reasons, including the primary one, namely, to ensure some finality in litigation.  If the Tribunal were to order remedial work in circumstances where the relationship between the parties has irretrievably broken down, it is likely not to result in finality of the disputes arising between those parties.

   (b)The Tribunal looks to the relationship between the parties and whether the owner has lost confidence in the builder, the willingness or otherwise of the builder to perform remedial works, whether it has performed remedial works which have been unsatisfactory, whether the builder has been refused access, and whether, for example, the extent of the remedial work itself evidences perhaps a lack of competence or ability on the part of the builder which justifies the owner losing confidence in the builder's ability.

   [25] Trengove and Celebration Nominees Pty Ltd [2012] WASAT 65; (2012) 80 SR (WA) 77 [36], [37].

9. The Tribunal in Trengove found that the relationship between the parties had irretrievably broken down.  It accepted the evidence given on behalf of the builder that whatever remedial work it performed, the owners would never be satisfied and that a further dispute between them would logically follow.  In these circumstances, the Tribunal made the building remedy order sought by Celebration Nominees Pty Ltd.

10. For reasons that follow, I do not agree that in the decision of the Tribunal in this matter the Tribunal inflexibly applied the principles considered in Nelson and Trengove.  Whilst the Tribunal clearly had regard to principles enunciated in these decisions, it determined the review on the relevant matters before it.

5.0 Decision of the Tribunal on the review

1. Following Senior Member Wallace's grant of leave to review, two senior sessional members were constituted as the Tribunal to review the order made by Member Leslie.[26]  The review hearing was held on 25 and 26 July 2017.

   [26] Pursuant to Complaint Resolution Act s 58(2).

2. On 15 August 2017, Senior Sessional Members Raymond and Affleck in oral reasons for decision made findings that the appeal should be upheld, the payment order made under s 36(1)(b) of the Complaint Resolution Act should be set aside and a building service remedy order (work order) under s 36(1)(a) of the Complaint Resolution Act be made.

3. The Tribunal found the issues for determination were as follows:[27]

   1.What is the appropriate remedial method?

   2.Should a remedial work order be made under s 36(1)(a), or should a monetary order be made under s 36(1)(b) or (c), or should any combination of such orders be made in favour of Sanders?

   3.If any monetary order is to be made in favour of Sanders, in what amount should such order be made?

   4.What is the effect on issues 2 and 3 of the orders made in mediation on 16 September 2014, for certain work to be conducted as a trial and the subsequent order made (also in mediation) on 27 November 2014, to the effect that the relevant 16 September 2014 orders had either lapsed or were revoked?

   [27] ts 15 August 2017, pages 2 ‑ 3; document book, pages 218 ‑ 219.

4. The Tribunal ordered that the hearing on the review proceed on the basis that both parties placed reliance on the evidence given at the original hearing, as supplemented by additional documents filed pursuant to directions issued by the Tribunal.

5. Oral evidence was given during hearing on the review by Sanders and Mr Domenico Morolo, a registered builder and licensed supervisor employed by Gemmill Homes.

6. The Tribunal made findings in respect of each of the issues it had identified.

5.1  Issue 1 ‑ appropriate remedial method

1. After setting out the summary of the evidence given at the original hearing before Member Leslie, the Tribunal observed that Sanders now concedes that the remedial method described by Gemmill Homes' expert witness, Mr Harrison, was appropriate as a method of remediation of the cornices. 

   
   

   This remedial method was described by the Tribunal as:[28]

   to provide a cut line along the cornice joint of all cracked cornices and plaster to completely isolate the cornice from the set coat, fill the bottom edge of the cornice with a bead of flexible and paintable sealant, and install scrim behind the cornices, at 450 mm centres and at all joints, and to cut out and re‑flush ceiling cracks, backblock joiners, and paint affected walls and ceilings.

   [28] ts 15 August 2017, page 4; document book, page 220.

2. The Tribunal, however, did not adopt this remedial method in its entirety because Mr Morolo had testified that there was little benefit in installing scrim and it would be very difficult to do so, particularly along cornices at the perimeter of the dwelling, as there was insufficient room without taking off roof sheeting.

3. The Tribunal found that subject to the omission of the installation of scrim, the appropriate remedial method was as proposed by Mr Harrison, including the making good of any damage caused by the remedial works, which Mr Harrison acknowledged would be necessary.[29]

5.2  Issue 2 ‑ appropriate form of building remedy order and Issue 4 ‑ the effect of the mediation orders

[29] ts 15 August 2017, page 4; document book, page 220.

1. The Tribunal considered these issues together.  In their view, the effect of the mediation order potentially impacted upon the appropriate form of a building remedy order.

2. The Tribunal noted that the parties had agreed that the 16 September 2014 order could not be carried out.

3. On 27 November 2014, a subsequent order had been made by the mediator to revoke the mediation orders, however the Tribunal found that it was beyond power of the mediator to do so. The reason why the Tribunal made this finding was that the order made on 16 September 2014, although expressed as a 'trial' order, was in reality a final order made pursuant to s 36(1)(a) of the Complaint Resolution Act to carry out remedial work in respect to the activity, family and theatre rooms.

4. The Tribunal, however, observed that the work constituted a trial in the sense that the effectiveness, or otherwise, of the repairs described to be undertaken would indicate whether the same repairs would be carried out throughout the dwelling, or whether the parties would remain in dispute about the appropriate repair method.

5. The Tribunal found that the only power granted to it to revoke a building remedy order is on review of a final order (as in this matter), or under the enforcement provisions in s 51 of the Complaint Resolution Act, upon failure to comply with a remedial work order. In light of this reasoning, the Tribunal consequently found that the order made on 27 November 2014 to revoke the 'trial order' was void and of no effect, as it was a nullity.

6. The Tribunal observed that there had been no application for leave to review the 'trial' order made on 19 September 2014 or, although not strictly necessary, the order made on 27 November 2014 to revoke.  In these circumstances, the Tribunal found that the 'trial' order stands.

7. The Tribunal then went on to observe that the 'trial' order does not properly describe the repairs to be undertaken, in that the order made a reference to providing a cut under the cornice and to the installation of fibreglass, or plaster grout, and it made no reference to the application of the flexible and paintable adhesive beads to the cornice, which is an essential part of Gemmill Homes' proposed remedial method, and without which the repairs would be doomed to fail.

8. The Tribunal then considered the appropriate form of the building remedy order and made the following findings:[30]

   [30] ts 15 August 2017, pages 6 ‑ 7; document book, pages 222 ‑ 223.

   (a)Usually the applicant (complainant) is entitled to elect whether to claim a remedial work order or monetary order (in lieu of the builder carrying out the remedial work).  If the latter applies, the amount to be ordered is the cost of a third‑party contractor carrying out the work, unless the applicant is considered to be acting unreasonably in insisting on this remedy.  In that event, the amount to be awarded will be limited to the cost the builder would incur had the builder been permitted to carry out the work.  This is because the applicant is considered not to have mitigated his loss.  The rationale for this approach, and the factors generally considered to be relevant, are set out in Nelson.[31]

   (b)The Tribunal nevertheless retains a discretion in determining the appropriate remedy, so that there may be circumstances when the general principles expressed in Nelson may give way.  Such cases are rare.  Trengove was such a case.  There the Tribunal found that the grant of a remedial order was appropriate, because the relationship between the parties had irretrievably broken down.

   (c)The respondent submits in this case that the relationship between the parties has irretrievably broken down and that it is best to break that relationship by making a payment order.  The grounds on which Gemmill Homes rely on to put this point are that Sanders:

   (i)refused entry to enable the trial repairs to be carried out;

   (ii)criticised the competency of trades used by Gemmill Homes;

   (iii)has no confidence in Gemmill Homes' competence to remedy the complaint;

   (iv)has gone to such extraordinary lengths in attempting to support his case, to the point of it becoming an obsession, which demonstrates as unreasonableness; and

   (v)that if there is any further cracking he will simply continue to litigate.

   [31] Nelson v Mardesic (1999) 22 SR (WA) 42, 48.

9. The Tribunal did not accept that the relationship between the parties had irretrievably broken down to the point that ordering Gemmill Homes to carry out remedial work would inevitably result in further litigation.

10. The Tribunal then set out the following findings as to why it had reached this view of the state of the relationship between the parties:[32]

    [32] ts 15 August 2017, pages 7 ‑ 10; document book, pages 223 ‑ 226.

    (a)The evidence establishes that Sanders was correct in identifying why the trial remedial work could not be carried out.

    (b)Sanders had been critical at different times to tradespersons and representatives of Gemmill Homes.  Sanders' evidence was that these persons had lied to him, in respect of a number of issues.

    (c)Sanders referred to lies given about the state of preparation of the house plans.  He had been told that they were almost finalised but in fact the plans had already been submitted to the local authorities for their approval without Sanders having sighted them.  This caused some weeks of delay because the house had not been located and the position specified by Sanders.

    (d)Sanders gave other examples of unsatisfactory work relating to:

    (i)the unsightly placing of a conduit for electrical wiring, which should have been put through the cavity within a brick pier;

    (ii)he was assured that a cooktop isolation switch could be installed within a cupboard; and

    (iii)when an electrician installing air‑conditioning for Sanders advised the installation was noncompliant, a representative of Gemmill Homes advised him that Western Power had inspected and approved the installation.  Sanders stated that Western Power later contradicted this advice.

    (e)Sanders was not cross‑examined in relation to any of this evidence, which the Tribunal accepted.

    (f)Notwithstanding these difficulties, Sanders informed the Tribunal that Gemmill Homes was able to perform its obligations to construct the dwelling and he saw no reason why they could not carry out work which Gemmill Homes acknowledged fell within their maintenance obligations.

    (g)Sanders denied making any critical comments about Gemmill Homes on any public forum, format or social media.

    (h)Sanders' view as to the reason for the cornice cracking and appropriate remedial method had been based on a report and evidence of his expert witness, Mr Mogg.  Whilst Sanders had gone further than Mr Mogg by claiming all the ceilings would need to be replaced, whereas Mr Mogg had stated that they all be repainted, Sanders readily accepted, when questioned by the Tribunal, that there was no contractual basis on insisting on the remedial method advised by Mr Mogg, and he would have to accept the remedial method proposed by Gemmill Homes.

    (i)Sanders accepted he had gone to great lengths to support his case because he did not have confidence in Gemmill Homes' experts.  Sanders pointed out that Mr Harrison in his initial report had accepted an incorrect method of fixing the cornices might be a cause of failure, but in his second report had retracted that opinion based on what he regarded as unpersuasive grounds, incorrectly construing Australian standards and manufacturers' requirements.  Sanders also considered that this was contradicted by Dr Zurhaar, who in evidence accepted the cracking would have been reduced if the cornices had been fixed to the flat coat.  Sanders also considered that Gemmill Homes' experts had failed to attribute any cause of failure, and had expressed the opinion that unless the cause of the cracking of the cornices was established, the effectiveness of any remedy could not be properly evaluated.  This evidence adequately explained Sanders' persistence.

1. The Tribunal also found that there was no doubt that Sanders went to extraordinary lengths to pursue his case, but sight must not be lost that this was litigation relating to building issues between a lay‑person and Gemmill Homes, a qualified builder with legal representation.  The Tribunal found that whilst this might have made the process difficult for Gemmill Homes, it did not, in their view, mean that Sanders was so unreasonable that a professional and workable relationship could not be maintained.

2. The Tribunal observed that:[33]

   (a)whilst Gemmill Homes now professes an irretrievable breakdown in its relationship with Sanders, it offered by a letter from its solicitors, dated 13 June 2017, to carry out other remedial work identified as being necessary to the roof framing, which is not the subject of these proceedings;

   (b)Gemmill Homes has included in its costings an amount which it now wishes to pay Sanders, in lieu of carrying out the roof repairs.  There is nothing identified which might have happened, after this date, which would justify such a change in position; and

   (c)as at 13 June 2017, the relationship was not thought by Gemmill Homes to be so bad that it could not carry out the roof repair.

   [33] ts 15 August 2017, page 10; document book, page 226.

3. The Tribunal observed that the refusal of leave to review the claim on contractual grounds and the water temperature issue had not resulted in further litigation (by Sanders).

4. The Tribunal also observed that Sanders has expressed his understanding that if less than a substantial degree of re‑cracking or new cracking occurs, this will not suggest that any responsibility lies with Gemmill Homes, and will be a matter for further maintenance.

5. The Tribunal then found that once it is determined that there is no irretrievable breakdown in the relationship likely to lead to ongoing litigation, if a remedial work order was made, an owner would generally be entitled to elect what remedy is sought (on the principles in Nelson).

6. The Tribunal then set out the reasons why it was of the view that a remedial work order should be made.  These were as follows:[34]

   (a)At least one of the advantages favouring such an order, as mentioned in Nelson, also exists in this matter.  Namely, that a remedial work order will avoid potential confusion as to liability if significant further cracking occurs after the necessary remedial work has been completed.  This is because Mr Harrison reflected in his first report that cornice cracking could be caused by any combination of nine causes, including deflection and movement, or up‑lift of the roof structure, large variances in temperature within the roof space, incorrect installation of Gyprock ceilings and cornices, and expansion and contraction of brickwork or internal walls.

   (b)Whilst in the original decision, the complaints in relation to cornices and ceilings were found to be faulty, there were no express findings as to any particular cause or factors which resulted in that conclusion.

   (c)Subsequent to the original hearing, Sanders commissioned a further building inspection report from a Mr Brent Wyatt, a registered builder, dated 6 December 2016.  The report, amongst other matters, raised non‑compliance issues with regard to the roof framing, including that roof tie down straps were not correctly installed.  Gemmill Homes responded by having the roof structure inspected by Mr Shane Just of the consulting engineering firm Structerre.  Mr Just found various deficiencies with the roof framing, including the tie down straps, but concluded that the deficiencies had not contributed to the cornice cracking which was attributed to growth of the clay masonry and minor movement in the timber members forming the ceiling structures.

   (d)Neither Mr Wyatt or Mr Just were called to give evidence, and there was, therefore, no opportunity for the parties, or the Tribunal, to test the views expressed.

   (e)It would be prudent for the parties to ensure that the necessary remedial work required to the roof structure which was not part of the proceedings be carried out before the remedial work to the cornices and ceilings so that there can be no future issue about whether the roofing structure defects might have contributed to any further significant cracking which might occur.[35]

   [34] ts 15 August 2017, pages 10 - 15; document book, pages 226 ‑ 231.

   [35] In those circumstances the order provided for a longer time than usual for the remedial work to the cornices to be carried out because the roof repairs first needed to be undertaken.

7. The Tribunal found that the remedial method proposed by Gemmill Homes will address Sanders' concern that the flexible sealant will adhere to the cornices to the float coat and should provide sufficient flexibility to cope some movement due to deflection of temperature due to deflection of timber or temperature variation.

8. The Tribunal observed that Sanders had stated that the cracking has increased significantly over time since September 2014 and that if the affected areas are now repaired and significant further cracking occurs in respect of the repaired areas at the locations, this would suggest either deflection of roof timbers and/or temperature variations within the roof space relative to internal temperature of the dwelling.  In these circumstances, the Tribunal found that the repair methodology, on its own, may be inadequate to address possible causes of failure of the cornices.  Further, if further significant cracking occurs there will be a need to explore design responsibility for the structure, and lack of ventilation in the roof space.

9. Consequently, the Tribunal expressed the view that if a monetary order were to be made, in lieu of a remedial work order, Sanders would probably make a complaint against the contractors who carried out the remedial work, and there would be confusion as to where responsibility finally lies.  Thus, it found there may be a real question as to whether Sanders would have any right to also make a new complaint against Gemmill Homes.  This was a factor the Tribunal found weighed strongly in the favour of a remedial work order being granted.

10. In light of its finding that the 'trial' order still stood, the Tribunal found a remedial work order should be made to exclude the areas of the house covered by the 'trial' order.  Such an order, it found, would contemplate that the parties could simply agree that Gemmill Homes will apply the same repair method to the areas covered by the 16 September 2014 mediation order.

5.3  Issue 3 ‑ the amount of any monetary award

1. The Tribunal then went on to find that monetary orders should be made pursuant to s 36(1)(c) of the Complaint Resolution Act to pay the cost of accommodation for Sanders whilst the remedial work is carried out. These costs were assessed at an amount of three weeks' accommodation, being $2,497. The Tribunal also allowed the cost of redirecting mail for one month in the sum of $28.00, being a total monetary order of $2,525.

5.4  Conclusion and orders

1. The Tribunal found that it was not appropriate that a remedial work order be expressed in specific terms to describe Gemmill Homes' proposed remedial method.  This was because, in its opinion, there remained the possibility that further deflection of roof timbers, which may be caused by high temperature build up in the roof space resulting in the expansion and contraction between masonry walls and timber members forming the ceiling structures, could be of such a degree that further significant cracking may continue to be experienced.  Consequently, the Tribunal found it should make an order that the necessary works be undertaken to remedy the cause and effect of the cracking so that if the repairs prove ineffective, Sanders would not be left without a remedy.

2. As contemplated in its oral reasons, the Tribunal made the following orders:[36]

   [36] The order by the Tribunal was made on 15 August 2017 and amended on 25 August 2017.

   1.The decision of the Tribunal reflected in order 1 of the order made on 8 August 2014 in matter CC 1141 of 2014 is set aside and substituted by orders 2 and 3 below.

   2.Pursuant to s36(1)(a) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), on or before 17 October 2017 the Respondent must:

   (a)Carry out and complete all necessary work at the Applicant's dwelling at 24 Tolworth Way, Embleton, Western Australia so as to remedy the cause and effect of all cracking to the cornices and ceilings within the dwelling in a proper and proficient manner so as to achieve an aesthetically acceptable result, save for that cracking which is present in the Activity room, Family room and Theatre room as described in the order of the Tribunal made on 16 September 2014 in matter CC 1141 of 2014;

   (b)Make good any damage caused by compliance with (a) above.

   3.Pursuant to s36(1)(c) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), on or before 21 August 2017 the Respondent must pay to the applicant the sum of $2,525.00.

   4.On or before 29 August 2017 the Respondent must advise the Executive Officer in writing, and provide a copy to the Applicant, advising whether or not it wishes to proceed with, or withdraw, the application by it for costs made in matter CC 1141 of 2014.

   5.On or before 29 August 2017 the Applicant must file with the Tribunal and provide to the respondent any application he might wish to make for costs;

   (a)Setting out all costs claim supported to the extent possible by vouchers, in sufficient detail to enable the Tribunal to assess and fix such costs;

   (b)Setting out his submissions as to the basis upon which it is contended such costs should be awarded.

   6.On or before 12 September 2017 the Respondent must file with the Tribunal and provide to the Applicant its written opposing submissions.

   7.Subject to further order, any application for costs shall be determined on the documents.

6.0 The appeal to the court instituted under s 105 of the SAT Act

1. Gemmill Homes contend that the Tribunal made the following errors of law:

   1.The Tribunal misconstrued s 38 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (Act) in that the Tribunal interpreted s 38 as generally entitling the complainant to elect the remedy which the Tribunal would make under s 36(1) in circumstances where s 38 provides for no such election.

   2.Further and alternatively to ground 1, the Tribunal impermissibly fettered its discretion under s 38(1)(a) to impose a building remedy order by proceeding on the basis that the complainant is generally entitled to elect the remedy which the Tribunal would make under s 36(1) in circumstances where the Tribunal's discretion is not so fettered on a proper construction of s 38 of the Act.

   3.Further and alternatively to grounds 1 and 2, the Tribunal impermissibly fettered its discretion under s 38(1)(a) by proceeding on the basis that the Tribunal would generally only refuse to make an order under s 36(1)(a) where the complainant expressed a preference for this order if the Tribunal found that there had been an irretrievable breakdown in the relationship between the complainant and the building services provider.

   4.The Tribunal took into account an irrelevant consideration in that, in determining that an order under s 36(1)(a) should be made, the Tribunal took into account the possibility that the respondent may wish to bring a new complaint in respect of the cornices, when the making of any order under s 36(1) would finally determine the respondent's complaint regarding the cornices such that no new complaint regarding the cornices could be made.

   5.Order 2 is invalid because it is an order which the Tribunal did not have jurisdiction to make in that order 2 is not an order within s 36(1)(a) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) because, on a proper construction of s 36(1)(a), an order made pursuant to s 36(1)(a) must specify how to remedy the regulated building service and order 2 does not specify how the regulated building service is to be remedied.

   6.The Tribunal made an error of law in characterising the order 2 of the Tribunal's orders dated 16 September 2014 as a final order made under s 36(1)(a) of the Act when the orders dated 16 September 2014 were expressed as 'trial' orders and were therefore of an interlocutory or interim nature.

   7.The Tribunal made an error of law in holding that order 2 of the Tribunal's orders dated 16 September 2014 was a valid order when the order was a remedial order of an interlocutory or interim nature and was therefore invalid because the Tribunal only had the power to make remedial orders of a final nature under s 36.

   8.The Tribunal made an error of law in concluding that order 2 of the Tribunal's orders dated 16 September had not been validly rescinded by order 2 of the Tribunal's orders dated 27 November 2014 in circumstances where the Tribunal was not functus officio and therefore had an inherent power to rescind an order made in jurisdictional error.

   9.Further and alternatively to ground 8, the Tribunal made a legal error in making an order which did not apply to the activity room, the family room and the theatre room given that the Tribunal had not validly exercised its jurisdiction to grant a remedy on 16 September 2014 and therefore the discretion to grant a remedy under s 36 of the Act should have been exercised with respect to the entirety of the home.

7.0  Are questions of law raised in the appeal and should leave be granted?

1. Section 105 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) provides that a party to a proceeding may appeal from a decision of the Tribunal to the court on a question of law, if the court gives leave to appeal. Leave to appeal should be granted if, in all the circumstances, it is in the interests of justice that leave be granted. It will be relevant to consider whether an applicant seeking leave to appeal has shown that there is sufficient doubt with respect to the decision under appeal to justify the grant of leave.[37]

   [37] Centrex Australasia Pty Ltd v Commissioner for Consumer Protection [2017] WASCA 79 [106].

2. Whilst described as an appeal, s 105 of the SAT Act confers original not appellate jurisdiction in the nature of judicial review to examine for legal error what has been done in the Tribunal.[38]  The existence of a question of law is not merely a qualifying condition to ground the jurisdiction of the court to hear the appeal, but also the subject matter of the appeal itself.[39]

   [38] Giudice v Legal Profession Complaints Committee [2014] WASCA 115 [71] (Buss JA).

   [39] Giudice v Legal Profession Complaints Committee [2014] WASCA 115 [73] (Buss JA); see also TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175, 178 (Gummow J); and Osland v Secretary, Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320 [21] (French CJ, Gummow & Bell JJ).

3. For reasons that follow, I am of the view that:

   (a)Leave to appeal should be allowed on grounds 6 to 9, as each of those grounds have been made out.

   (b)Leave to appeal should allowed on ground 5, as this ground has been made out.

   (c)Grounds 1, 2 and 3 have not been made out.  Whilst I agree the Tribunal erred in observing that a complainant who makes a building service complaint is entitled to elect a remedy, I am not satisfied that it has been demonstrated this finding is an error of law that is a vitiating error, that is, it is an error that might have affected the Tribunal's decision to make a building service remedy order.

   (d)Ground 4 has not been made out.

8.0  Grounds 6 to 9 of the grounds of appeal - is the 'trial' order and the order to revoke the 'trial' order valid?

1. Sanders concedes that the Tribunal fell into legal error in its approach to the mediation order made on 16 September 2014.  In particular, it is submitted and conceded on his behalf that:

   (a)the order was an interim or interlocutory order and not a final order;

   (b)as such it was duly rescinded by the order of Member Carey on 27 November 2014;

   (c)alternatively, there was no power to make the order and, therefore, it was not valid; and

   (d)as the mediation order had been validly rescinded, or was an invalid order, the Tribunal should have disregarded it when making its final order on 25 October 2017.

2. Consequently, it is conceded on behalf of Sanders that the Tribunal erred in law as identified in grounds 6 to 9 of the grounds of appeal.  This concession is, in my view, properly made.

3. However, it is contended that those errors did not affect the Tribunal's ultimate decision to order Gemmill Homes to remedy the defective work as these errors only affected the scope of the order.  Therefore, it is said those errors are vitiating only to the extent that they affected the scope of the Tribunal's order.

4. The order made by Member Carey was plainly a 'trial' order.  Its intended legal effect was not a final order.  On its terms it was an interim order.

5. Whilst the order was limited to an 'aspect of the matter' in that the order was limited to the repair of cornices to certain rooms of the house, pursuant to orders 2 and 5, the work was to be undertaken prior to the next mediation and order 3 required a joint inspection of the work after the trial was complete.  Plainly, the orders were simply steps to be undertaken prior to the convening of the next mediation between the parties.

6. The Tribunal is not empowered to make an interim order. The only interim orders that can be made are interim building service orders by the Building Commissioner, the pre‑conditions of which are that the Building Commissioner must form a requisite opinion as specified in s 30(1)(a), (b) or (c) of the Complaint Resolution Act.

7. The only jurisdiction the Tribunal has in relation to an interim building service order is a power to affirm, revoke, or vary an interim building service order made by the Building Commissioner.[40]

   [40] Complaint Resolution Act s 34(1).

8. Pursuant to s 54(8) of the SAT Act, a mediator who is a Tribunal member may make any orders necessary to give effect to the settlement of a matter or aspect of a matter in dispute between the parties. Such orders would necessarily dispose of the whole of the matter or aspect of a matter in dispute. If a mediation order is made in settlement of an aspect of a matter, the order would necessarily bind the parties in any subsequent stages of the proceedings between them.[41]

   [41] See Presiding Member of the Southern Development Assessment Panel v DCSC Pty Ltd [2018] WASC 145 [79] - [98].

9. As the legal effect of the order was an interim order that was to apply to an aspect of the matter (the subject of the building service complaint), the order was beyond the jurisdiction of Member Carey (as mediator) to make.  It follows, therefore, the error identified in ground 6 is made out.

10. In Minister for Immigration and Multicultural Affairs v Bhardwaj, Gaudron and Gummow JJ found that absent jurisdiction to make an order, the order is a decision that lacks foundation and is properly regarded, in law, as no decision at all.[42]

    [42] Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 [51].

11. However, a decision that is no decision at all may still have consequences while the decision is in force.  Le Miere J in Tulloh v Chief Executive Officer of the Department of Corrective Services explained:[43]

    [43] Tulloh v Chief Executive Officer of the Department of Corrective Services [2018] WASC 105 [21] ‑ [28]; see also Duro Felguera Australia Pty Ltd v Samsung C&T Corporation [2018] WASCA 28 [131] (Buss P & Murphy JA).

    In Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 (Plaintiff S157) a question was whether s 474 of the Migration Act 1958 (Cth), which provided in effect that a 'privative clause decision', a defined term, was not subject to judicial review precluded judicial review of a decision of the Tribunal in breach of the requirements of natural justice. The High Court held that s 474 did not prevent judicial review of decisions that involve jurisdictional error. Decisions of that character were not 'privative clause decisions' because they were not decisions made 'under' the Act. Gaudron, McHugh, Gummow, Kirby and Hayne JJ said:

    'This Court has clearly held that an administrative decision which involves jurisdictional error is "regarded, in law, as no decision at all" [76].'

    At [76] their Honours referred to Bhardwaj at [51] per Gaudron and Gummow JJ, [63] per McHugh J and [152] per Hayne J.

    Bhardwaj was considered by the Full Federal Court in Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 145 FCR 1 (Jadwan). Gray and Downes JJ concluded:

    'Only Gaudron and Gummow JJ, with the agreement of McHugh, as part of the reasoning, relied on the proposition that jurisdictional error on the part of the decision-maker causes an administrative decision to be of no legal effect. Gleeson CJ, Hayne J and Callinan J do not appear to have embraced the proposition. Kirby J in his dissenting judgment clearly did not [40].'

    Gray and Downes JJ also analysed the authorities and concluded that a decision that was no decision at all may still have consequences.  Their Honours also highlighted that the High Court had not explained in any detail what the consequences were for a decision that had no legal effect:

    'Gaudron and Gummow JJ did not explain in detail the consequences of the proposition that the decision has no legal effect. They did not deal with issues such as the status of the first decision of the IRT if the IRT had not chosen to ignore it and make another. Indeed, their Honours did not discuss what might be the factual, as distinct from the legal, consequences attaching to an administrative decision if no challenge to its validity is ever made, or if challenge to its validity is made out of time, or is made in proceedings to which someone bound or otherwise affected by the decision is not a party. Nor did their Honours say anything about the possible effect of an administrative decision after a court proceeding in which a party has made out a case of jurisdictional error on the part of the decision-maker, but the court has declined to grant relief in relation to the decision by reason of discretionary considerations [40].'

    After referring to the reasoning of the High Court in Plaintiff S157, Gray and Downes JJ concluded that Bhardwaj had a limited application:

    'In our view, Bhardwaj cannot be taken to be authority for a universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever. All that it shows is that the legal and factual consequences of the decision, if any, will depend upon the particular statute [42].'

    Kenny J agreed at [64].

    Those statements of Gray and Downes JJ were obiter because the court held that there had not been any jurisdictional error.  However, their Honours comments have been approved or followed by intermediate courts of appeal:  Minister for Immigration and Border Protection v Hossain [2017] FCAFC 82; Minister for Immigration and Citizenship v Maman (2012) 200 FCR 30; Director of Public Prosecutions (DPP) v Edwards [2012] VSCA 293; Purton v Jackson [2012] TASFC 2.

    Aronson, Groves and Weeks in Judicial Review of Administrative Action and Government Liability (6th ed, 2017), after referring to Bhardwaj, Plaintiff S157 and Jadwan offer the following 'interim conclusions':

    'For most contexts, the outcome of judicial review is retrospective, in the sense that the jurisdictionally flawed decision is treated as having had no relevantly adverse legal effect.  "Nullity" is a useful word to denote that outcome. It is not automatically the case, however, that jurisdictionally flawed decisions fail to produce legal consequences.  Nullity is a bundle of legal consequences.  Whether a decision has relevantly adverse legal effects, and if so, how many, are questions which will receive different answers in different contexts [10.120].'

    In my opinion the effect of the authorities is as follows.  First, an administrative decision which involves jurisdictional error is legally invalid.  Secondly, an administrative decision which is legally invalid does not necessarily have no legal effect unless and until it is set aside or declared to be invalid.  Thirdly, whether a legally invalid decision has any relevant legal effect before it is set aside or declared to be invalid depends upon the statutory framework under which and the context in which the decision is made.

1. In this matter, the method specified in order 2 of the 'trial' orders could not be carried out.  Consequently, no steps were taken in accordance with orders 2 and 3.  In these circumstances, as no acts were taken pursuant to the terms of the trial order, the order had no legal consequences.

2. As the 'trial' order was invalid, the Tribunal should not have had regard to it.  For these reasons, the errors identified in grounds 7 and 9 of the appeal are made out.

3. I also agree that the error identified in ground 8 is made out.  The Tribunal, having made an order without power, had power to correct the error by making a subsequent order to revoke the mediation order.[44]

   [44] Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 [52] ‑ [53] (Gaudron & Gummow JJ).

9.0  Grounds 1 to 3 of the grounds of appeal

9.1  The practice of comity

1. In support of grounds 2 and 3 of the appeal, a submission is put that the Tribunal erred in law by treating its previous decisions as establishing binding principles as to how to determine which remedy order to make. In particular, an argument is put that the Tribunal inflexibly applied its previous decisions and therefore impermissibly fettered its discretion conferred by s 38 of the Complaint Resolution Act.

2. It is not a novel principle that an administrative tribunal should adopt a consistent approach to the matters before it.  The integrity of decision‑making is better served by a tribunal that adopts consistency in its decisions.

3. Providing that general principles formulated to guide the exercise of discretion of a tribunal are squarely and relevantly raised in a matter, and the general principles are not inconsistent with the operative effect of the statute conferring the power on the tribunal to determine the matter before it, there is no reason why, at law, a tribunal cannot formulate and apply general principles to the exercise of a statutory discretion.

4. This principle emerges from the practice of comity.  The practice of comity is a nonbinding practice that courts and tribunals apply to previous decisions of a court or tribunal at the same level.

5. In The Owners of Strata Plan 18449 and City of Joondalup, President Barker and Senior Member Parry observed:[45]

   For reasons of comity and consistency, a member of SAT should also generally follow a decision of another member of the Tribunal (or a member of a former Tribunal which SAT has replaced) that is in point, unless satisfied that the earlier decision was clearly in error:  Re Scott and Commissioner for Superannuation (1986) 9 ALD 491 at 499. However, as the President is a judicial member and may review a decision of a non‑legally qualified member on a question of law under s 66 of the TPD Act, the Tribunal constituted by or comprising the President may depart from a decision of a non-legally qualified member or indeed a legally qualified member on a question of law. The President may in this way provide appropriate guidance to the Tribunal on questions of law, subject to any further guidance the Court of Appeal may give from time to time.

   [45] The Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304 [31].

6. In The Owners of Strata Plan 18449, President Barker and Senior Member Parry also observed that while, as presently constituted, the Tribunal was not bound to follow a decision of the single judge of the Supreme Court, comity and consistency requires that any decision which is in point should be followed unless the Tribunal considers that it is clearly wrong.[46]  This particular observation was, however, disapproved of by the Court of Appeal in Mustac v Medical Board of Western Australia as the Tribunal is not a court.[47]  This point is not, however, relevant to the disposition of any issues raised in this appeal.

   [46] The Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304 [30].

   [47] Mustac v Medical Board of Western Australia [2007] WASCA 128 [49] ‑ [50] (Martin CJ, Wheeler & Buss JA agreeing).

7. In Mustac, Martin CJ explained the practice of judicial comity as follows:[48]

   The practice of judicial comity is, of course, distinct from, but related to, the doctrine of precedent (or stare decisis) which compels each court in a judicial hierarchy to follow and apply decisions of any court higher in that hierarchy on questions of law.  The practice of judicial comity applies to augment that doctrine by creating a non-binding practice applicable to decisions of courts of co-ordinate jurisdiction, or as between a court in one judicial hierarchy, and a court at the same or a higher level in another judicial hierarchy, and provides that questions of law should usually (but not always) be determined the same way.

   [48] Mustac v Medical Board of Western Australia [2007] WASCA 128 [38] (Martin CJ, Wheeler & Buss JA agreeing).

8. The Chief Justice considered a number of cases in which the practice of comity was considered.  His Honour observed that all of the cases to which reference has been made refer to the practice in respect of issues of law, being most often questions of statutory construction, by including issues of common law and equity.[49]

   [49] Mustac v Medical Board of Western Australia [2007] WASCA 128 [43] (Wheeler & Buss JA agreeing).

9. The Chief Justice observed that the practice of judicial comity does not extend to issues of fact.[50]  His Honour then went on to set out three propositions that apply to the practice of comity.  These are as follows:[51]

   (a)judicial comity is a practice, not a legal principle, the practical application of which will vary depending upon the individual circumstances of the cases in question - so it could never operate to constrain the issues to be litigated as between parties and only arises when all the evidence and argument relevant to the question under consideration has been received;

   (b)the practice only applies as between courts of coordinate jurisdiction or to a situation in which a court is being asked to follow a decision of another court at an equivalent level or higher in a comparable judicial hierarchy; and

   (c)the practice is limited to questions of law, and has no application to questions of fact.

9.2  Does a complainant have a right to elect a remedy? - The proper construction of the statutory discretion to make a building remedy order

[50] Mustac v Medical Board of Western Australia [2007] WASCA 128 [45] (Wheeler & Buss JA agreeing).

[51] Mustac v Medical Board of Western Australia [2007] WASCA 128 [46] (Wheeler & Buss JA agreeing).

1. The issue raised in ground 1 is whether pursuant to s 38 of the Complaint Resolution Act a complainant is entitled to elect the remedy which the Tribunal would make and whether s 38 provides for such an election.

2. The proper construction of a statute or instrument is a question of law.

3. In ground 2, Gemmill Homes contends that the Tribunal impermissibly fettered its discretion on the basis that the complainant is generally entitled to elect the remedy which the Tribunal would make.

4. In ground 3, Gemmill Homes raises a contention that the Tribunal impermissibly fettered its discretion by proceeding on the basis that the Tribunal would generally only refuse to make an order to remedy defective building work where a complainant expressed a preference for such an order if the Tribunal found there had been an irretrievable breakdown in the relationship between the complainant and the building service provider.

5. In response, Sanders claims that grounds 1 to 3 do not properly raise any question of law concerning the proper construction of s 38(1)(a) of the Complaint Resolution Act. It is argued that Gemmill Homes' contentions in respect of grounds 1, 2 and 3 are based on a misreading of the Tribunal's reasons. In particular, the Tribunal's use of the words 'elect whether to claim' were used to simply recognise that a claimant may have a preference for a type of order that he or she wants the Tribunal to make, and that is a factor to which the Tribunal had regard to, but the Tribunal did not construe the preference of Sanders for a remedial work order to be more than one of the factors that it took into account.

6. Sanders also contends that the question of whether there was an irretrievable breakdown in the relationship between the parties was also simply one of the factors considered by the Tribunal when deciding between the two available remedies (a remedial work order or a monetary order).

7. With respect to the arguments put by counsel on behalf of Sanders, it is clear that if the errors alleged by Gemmill Homes can be made out, they constitute jurisdictional errors, that is the decision was made with regard to matters that are outside the limits of the matters authorised to be considered in the exercise of the statutory discretion conferred upon the Tribunal.

8. Section 38(1) of the Complaint Resolution Act provides:

   (1)If the Building Commissioner refers a building service complaint to the State Administrative Tribunal, the Tribunal may ‑

   (a)if the Tribunal is satisfied that the regulated building service that is the subject of the building service complaint has not been carried out in a proper and proficient manner or is faulty or unsatisfactory, deal with the building service complaint by making a building remedy order; or

   (b)otherwise, decline to make a building remedy order.

9. Section 36(1) of the Complaint Resolution Act provides:

   (1)A building remedy order consists of one of the following ‑

   (a)an order that a person who carried out a regulated building service remedy the building service as specified in the order;

   (b)an order that a person who carried out a regulated building service pay to an aggrieved person such costs of remedying the building service as the Building Commissioner or State Administrative Tribunal, as the case requires, considers reasonable and specifies in the order;

   (c)an order that a person who carried out a regulated building service pay to an aggrieved person a sum of money specified in the order to compensate the aggrieved person for the failure to carry out the building service in a proper and proficient manner or for faulty or unsatisfactory building work.

10. The discretion conferred on the Tribunal in s 38 of the Complaint Resolution Act to make a building remedy order is to be read together with s 36 which provides for three alternative categories of building remedy orders. The first is a work order. The second is a payment of reasonable costs of remedying the building services work order. The third is a payment of compensation order for the failure to carry out the building service in a proper and proficient manner, or for faulty or unsatisfactory building work.

11. If a work order made pursuant to s 36(1)(a) of the Complaint Resolution Act has not been complied with, or has been complied with in part, the Tribunal may, pursuant to s 51(2) of the Complaint Resolution Act, revoke the order in relation to remedying the building service, or the part in question, and make a building remedy order referred to in s 36(1)(b) or (c) in relation to that building service (a payment or compensation order).

12. The preconditions which enliven the discretion conferred on the Tribunal to make a building remedy order is that the Tribunal must be satisfied that the regulated building service (that is the subject of the complaint) has not been carried out in a proper and proficient manner, or is faulty, or unsatisfactory. There are, however, limitations upon the making of a building remedy order prescribed in s 32(2) of the Complaint Resolution Act which are not relevant to the matters raised in this appeal.

13. The general discretion conferred by s 38(1) of the Complaint Resolution Act to make a building remedy order is not limited by any mandatory considerations.

14. Legal reasonableness provides the boundaries of the area within which a decision‑maker has a genuinely free discretion.[52]  It is, however, implied in a discretionary power conferred by statute that the discretion must be exercised reasonably.[53]

    [52] Minister for Immigration & Citizenship v Lai (2013) 249 CLR 332 [66]; Jacob v Save Beeliar Wetlands (Inc) [2016] WASCA 126 [68] (McLure P, Buss JA & Newnes JA agreeing).

    [53] Kruger v The Commonwealth of Australia (1997) 190 CLR 1, 36 (Brennan CJ).

15. To determine the boundary, regard must be had to the scope, subject matter and purpose of the statutory discretionary power.[54]

    [54] Minister for Immigration & Citizenship v Lai (2013) 249 CLR 332 [67]; Jacob v Save Beeliar Wetlands (Inc) [2016] WASCA 126 [68] (McLure P, Buss JA & Newnes JA agreeing).

16. Thus, it is necessary to consider the subject matter, scope and purpose of the statutory scheme that creates and confers on the Tribunal a discretion to make building remedy orders.

17. By its long title, the Complaint Resolution Act is to provide for, among other matters, a system for dealing with complaints about building services, home building work contract matters and disciplinary matters and a system for ensuring compliance with laws about building services.

18. Section 5(2) of the Complaint Resolution Act enables an owner or a builder under a home building work contract to make a complaint about a matter referred to in s 17, s 20 or sch 1 cl 5 of the Home Building Contracts Act.

19. Under s 5(1) of the Complaint Resolution Act, a person may make a complaint to the Building Commissioner about a regulated building service not being carried out in a proper and proficient manner, or being faulty, or unsatisfactory. The right conferred by s 5(1) of the Complaint Resolution Act is not confined to persons who are in a contractual relationship with the person providing the building service. However, reg 5 of the Building Services (Complaint Resolution and Administration) Regulations 2011 (WA) limits the right of a person to complain under s 5(1) of the Complaint Resolution Act to a person 'whose interests are being, or have been, adversely affected by the carrying out of the regulated building service'.

20. A 'regulated building service' is defined in s 3 of the Complaint Resolution Act to mean:

    (a)a building service carried out by a registered building service provider or an approved owner­ ‑ builder;

    (b)home building work that is carried out under a contract or arrangement for gain or reward.

21. Once a building service complaint is accepted by the Building Commissioner, the Building Commissioner must cause an investigation of the complaint to be carried out.[55] Pursuant to s 10, the person authorised to carry out an investigation must prepare a report and under s 11, the Building Commissioner must consider the report and may dismiss the complaint, commence a conciliation, deal with the complaint under s 37 or s 42, or refer the complaint to the Tribunal for it to deal with under s 38 or s 43.

    [55] Complaint Resolution Act s 9(1).

22. Building remedy orders can be made by the Tribunal under either s 38, if the complaint is made under s 5(1) of the Complaint Resolution Act, or under s 43 of the Complaint Resolution Act (a HBWC remedy order) if it is a complaint about an owner or a builder under a home building work contract order.

23. It can properly be said to be implied, in the Complaint Resolution Act, that materials used in providing a regulated building service will be of an acceptable standard and the work carried out in the performance of a building service will be carried out competently.

24. Thus, if the Tribunal finds that a regulated building service (that is the subject of a building service complaint) has not been carried out in a proper and proficient manner, or is faulty or unsatisfactory, the Tribunal is empowered to make a building remedy order on referral of a building service complaint to it by the Building Commissioner.

25. Therefore, it follows that in making a building remedy order, the Tribunal must determine what work (the subject of the building service) has not been carried out in a proper and proficient manner or is faulty or unsatisfactory. These are findings of fact that the Tribunal must make. In making these findings, the Tribunal is obliged to have regard to any matters relevant to forming the requisite opinion prescribed by s 38(1)(a) of the Complaint Resolution Act.

9.3  Did the Tribunal err in referring to a complainant being entitled to elect a remedial work order or a monetary order?

1. One of the matters that will be relevant in the majority of matters that come before the Tribunal (where a building remedy order is sought) is the current state of the relationship between the parties.  The Tribunal will need to determine whether the relationship is such that if a work order is made, such an order is workable, or whether the state of animosity between the parties is such that the co‑operation necessary to carry out such an order is absent, so that a payment or a compensation order is the appropriate order to be made.

2. Thus, the relationship between the parties will be a relevant matter as to what type of building remedy order is sought by the complainant and whether the form of the order sought is opposed by the building service provider and the reasons why such an order is opposed.

3. Relevantly, two contentions emerge from the observations made in Nelson:

   (a)firstly, a complainant is entitled to elect to seek an order to pay; and

   (b)secondly, there is an onus on the building service provider to establish that complainants are acting unreasonably in insisting upon an order to pay.

4. Whilst I accept that the general principles discussed in Nelson are derived from the principles that apply in determining remedies under maintenance or defects liability clauses in building contracts which may have a general application to the discretion conferred upon the Tribunal by s 38 of the Complaint Resolution Act, it is doubtful that a person who provides a regulated building service (that is subject to a building service complaint) bears an onus of proof to prove that the complainant who seeks a payment order is acting unreasonably. The Tribunal in its original jurisdiction is not bound by the rules of evidence.[56]  In administrative proceedings, unless an onus is expressly created by statute or arises by inference from the statute, a party to proceedings does not legally bear an onus of proof of a particular material fact.[57]  However, it is not necessary to determine whether such an onus arises as found in Nelson as it is not raised in the matter before me, nor have I heard argument on this point.

   [56] Dekker v Medical Board of Australia [2014] WASCA 216 [75]; see also Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 [105] ‑ [107], [115] (Flick & Perry JJ) and Erujin Pty Ltd v Jacob [2017] WASC 35 [160] ‑ [161].

   [57] Yao-Jing v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275, 288.

5. I do not accept the principle that the person who makes the complaint has a right to elect to seek which remedy they should be entitled to.

6. Although s 36(1) could be construed as providing an unfettered discretion to make any of the orders specified in s 36(1)(a), (b) and (c), where a statutory grant of power is silent on the matters to be taken into account, as set out in [107] ‑ [110], the matters that a statutory decision‑maker (such as the Tribunal) are required to take into account may arise by implication from the subject matter, scope and purpose of the legislation.[58]

   [58] See also Jacob v Save Beeliar Wetlands (Inc) [2016] WASCA 126 [49] (McLure P, Buss JA & Newnes JA agreeing).

7. In Sean Investments Pty Ltd v MacKellar, Deane J observed:[59]

   [W]here relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards.  The ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide.

   [59] Sean Investments Pty Ltd v MacKellar (1981) 3 ALN N102; (1981) 38 ALR 363, 375.

1. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd, Mason J had regard to this observation made by Deane J in Sean Investments in the context of considering a ground of appeal.  Taking into account irrelevant considerations in judicial review Mason J summarised the following propositions:[60]

   (b)What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion.  If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive.  If the relevant factors ‑ and in this context I use this expression to refer to the factors which the decision-maker is bound to consider ‑ are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act.  In the context of judicial review on the ground of taking into account irrelevant considerations, this court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard:  see Reg v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49–50 , adopting the earlier formulations of Dixon J in Swan Hill Corp v Bradbury (1937) 56 CLR 746 at 757‑8, and Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505. By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject‑matter, scope and purpose of the Act.

   (c)Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law.  A factor might be so insignificant that the failure to take it into account could not have materially affected the decision:  see, eg, the various expressions in Baldwin & Francis Ltd v Patents Appeal Tribunal [1959] AC 663 at 693; Hanks v Minister of Housing and Local Government [1963] 1 QB 999 at 1020; R v Chief Registrar of Friendly Societies; Ex parte New Cross Building Society [1984] QB 227 at 260. A similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of an administrative decision: Reg v Bishop of London (1889) 24 QBD 213 at 226‑7; Reg v Rochdale Metropolitan Borough Council; Ex parte Cromer Ring Mill Ltd [1982] 3 All ER 761 at 769‑70.

   [60] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39 ‑ 41.

2. More recently, Mitchell J explained in Laing O'Rourke Australia Construction Pty Ltd v Samsung C&T Corporation:[61]

   It follows from this definition of the concept that, where action taken in the purported exercise of a statutory power is sought to be impugned for jurisdictional error, the only question will be whether what was done was authorised by the empowering legislation. The answer to that question will turn on the identification of the limits of the authority conferred by the relevant statutory provision, and an analysis of the facts to ascertain whether those limits have been exceeded. The identification of those limits may also be described as identifying the conditions for the valid exercise of the statutory power.

   The identification of the conditions for the valid exercise of the relevant statutory power is entirely a question of statutory construction.  The proper construction of the relevant statute is 'reached by the application of rules of interpretation accepted by all arms of government in the system of representative democracy'.

   Those rules require primary attention to be directed to the text of the relevant provisions.  There must be regard to the language of the statute viewed as a whole, considered in its context.  An important part of that context will be the purpose of the legislation, ascertained from what the legislation says (rather than any assumption about the desired or desirable reach or operation of the relevant provisions).  Once the purpose of the legislation is established, a construction that would promote that purpose shall be preferred to a construction that would not do so.

   Some rules of statutory construction relate to assumptions which are to be made in reading legislation. For example, it is presumed that legislation does not overthrow fundamental principles or depart from the general system of law without expressing that intention with irresistible clearness.  Where two alternative constructions of legislation are open, that which is consonant with the common law is to be preferred.

   [61] Laing O'Rourke Australia Construction Pty Ltd v Samsung C&T Corporation [2015] WASC 237 [98] ‑ [101].

3. Any failure to form the necessary requisite opinion governing the exercise of the power to make a building remedy order would have the effect that the decision is not authorised by the statute and is thus invalid as an excess of power.[62]

   [62] Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 [13] citing Salemi v MacKellar [No 2] (1977) 137 CLR 396, 401 (Barwick CJ).

4. As outlined in Nelson, in an action in contract, the innocent party is entitled to elect:

   (a)to terminate the contract for a breach of an essential condition, or a non‑essential term where there is a sufficiently serious breach[63] and if the contract is for building work, sue for damages to be assessed for the cost of necessary work to remedy the defects, together with consequential loss;[64] or

   (b)affirm the contract and sue for damages for the breach.

   [63] Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61 [47], [49].

   [64] Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613; Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8; (2009) 236 CLR 272; Hughes v Dormley Pty Ltd as Trustee for the Poll Family Trust [2001] WASC 83.

5. Whilst comity and consistency require that the Tribunal formulate well‑founded coherent principles to guide the exercise of the discretion conferred by s 38, the right of the innocent party to elect cannot, in my respectful opinion, be applied to the statutory remedies in s 36 of the Complaint Resolution Act. To imply a right on an owner to elect a remedy is to add a gloss to the statutory task the Tribunal must embark upon to exercise the discretion conferred by s 38 to make a building remedy order in the form of one (or more) of the orders specified in s 36(1).

6. Given that building service complaints will usually arise out of a contractual relationship to provide regulated building services (which may or may not have come to an end), it is relevant to regard building remedy orders as a statutory extension of a defects liability period.  However, the statutory remedy does not arise from a contractual relationship.  The right to a building remedy order arises out of defects in the work the subject of the regulated building service.

7. It must be borne in mind that the statutory limits on the exercise of the discretion to make a building remedy order are only those set out in s 38. The repository of the power conferred to make an order (the Tribunal) must form an opinion that the regulated building service (that is the subject of the building service complaint) has not been carried out in a proper and proficient manner, or is faulty or unsatisfactory.

8. If the requisite opinion is formed, the Tribunal is required to make a building remedy order. It then has to exercise the discretion conferred in s 36(1) to make a particular order in the form of s 36(1)(a), (b) or (c). Thus, no 'right' or requirement on a party to a complaint to elect arises.

9. I do, however, agree with the point made in Nelson that the Tribunal has no power to compel an owner or require an owner or a person who has the right to control entry to a property to allow access to a site to enable an amount of work to be carried out in accordance with a building service work order.  If there is evidence that such access was likely to be denied then that would be a relevant matter of fact that the Tribunal could take into account.

10. Whilst I am of the opinion that a complainant has no right to elect the remedy sought to be made by the Tribunal, I do not agree with the submission that in this matter the Tribunal erred in referring to a right to elect by a complainant, as I am not satisfied that this error affected the decision made by the Tribunal for the following reasons.

11. Firstly, the 'right to elect' referred to by the Tribunal in its reasons for decision is not an election within the meaning of this concept in common law.  The doctrine of election is to elect between two inconsistent rights.  Because the rights are inconsistent, neither one may be enjoyed without the extinction of another.[65]

    [65] Sargent v ASL Developments Ltd (1974) 131 CLR 634, 641 (Stephen J);.

12. It would be wrong to characterise the discretion conferred in s 38 of the Complaint Resolution Act, when read together with s 36, as creating mutually exclusive courses of action.[66]  However, the Tribunal did not apply such an approach.

    [66] State of Victoria v Sutton (1998) 195 CLR 291 [40] (Gaudron, Gummow & Hayne JJ).

13. Secondly, and importantly, whilst no right to elect is created by s 38 or s 36, in referring to such a 'right', the Tribunal did not take Sanders' preference for a remedial work order as anything other than a 'preference' and one of the relevant considerations it was required to consider on the facts before it in determining whether to make a building remedy order in the form prescribed in s 36(1)(a) or s 36(1)(b).

14. Put another way, whilst I agree that the Tribunal erred in referring to a right to elect by a complainant, this was not an error that vitiated the Tribunal's decision.

15. In Australian Broadcasting Tribunal v Bond, Mason CJ observed:[67]

    A decision does not 'involve' an error of law unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different.  The critical question on this aspect of the case is whether, but for the alleged error of law on which the respondents rely, the decision might have been different by reason of the possibility that the Tribunal would not have made the findings of fact relating to the settlement in the terms in which they were made.

    [67] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 353.

16. In Field Deployment Solutions Pty Ltd v SC Projects Australia Pty Ltd, Mitchell J found in respect of the test to be applied for a vitiating error made by the Tribunal that:[68]

    An applicant seeking review by an administrative tribunal may be regarded as having a right to have their review application determined according to law.  If a tribunal makes a demonstrable error of law which might have affected the ultimate decision, but which cannot be positively shown to produce an adverse outcome, then the dissatisfied party has not received the kind of review to which they were entitled.

    [68] Field Deployment Solutions Pty Ltd v SC Projects Australia Pty Ltd [2015] WASC 60 [100].

17. I am not satisfied that the error of the Tribunal in referring to a right to elect might have affected the Tribunal's ultimate decision.  To the contrary, when the reasons for decision of the Tribunal are read, the observation that such a right is a general entitlement of a complainant makes it clear that this was not a matter that affected the determination made by the Tribunal.

18. For these reasons, I am not satisfied that grounds 1 and 2 of the appeal have been made out.

19. In the alternative to grounds 1 and 2, Gemmill Homes pleads in ground 3 that the Tribunal impermissibly fettered its discretion under s 38(1)(a) by proceeding on the basis that the Tribunal would generally only refuse to make an order under s 36(1)(a) where the complainant expressed a preference for this order if the Tribunal found that there had been an irretrievable breakdown in the relationship between the complainant and the building service provider.

20. Whilst Gemmill Homes points out that the notion of an 'irretrievable breakdown in the relationship' does not appear anywhere in the text of the Complaint Resolution Act, I do not agree that the Tribunal fettered its approach to its discretion conferred by s 38(1)(a) by proceeding on such a basis.

21. On the facts found by the Tribunal, Sanders sought a building remedy order in the form of a remedial work order.  That was his preference which he was entitled to put to the Tribunal and the Tribunal was required to consider Sanders' expressed preference and the reasons why he sought such an order as relevant matters when determining the type of building remedy order it would make.

22. In opposing the work order sought by Sanders, Gemmill Homes raised its preference for a monetary order and squarely raised a factual issue in support of its preference which was that, in its opinion, there had been an irretrievable breakdown of the relationship between the parties.

23. An examination of the transcript of the submissions made on behalf of Gemmill Homes to the Tribunal reveals that this submission was the sole reason why Gemmill Homes opposed a building remedy order in the form of a work order and sought a payment order.[69]  As counsel for Sanders points out in this appeal, it was the 'central plank' in Gemmill Homes' case.

    [69] In closing submissions to the Tribunal, counsel for Gemmill Homes, Mr Monaco, made extensive submissions to the Tribunal as to why a finding of fact should be made that the relationship between the parties had broken down to such an extent that it would be unfair to Gemmill Homes to perform remedial work for Mr Sanders.  ts 26 July 2017, pages 20 ‑ 24.

24. For these reasons, I am not satisfied that the Tribunal erred as alleged in ground 3 of the appeal.

10.0 Ground 4 ‑ did the Tribunal take into account an irrelevant consideration?

1. Gemmill Homes contends in ground 4 that when determining that a building remedy order under s 36(1)(a) should be made the Tribunal, rather than make an order for the payment of money, took into account an irrelevant consideration. The irrelevant consideration is said to be the finding of the possibility that Sanders may wish to bring a new complaint in respect of the cornices, when the making of any order under s 36(1) would finally determine Sanders' complaint regarding the cornices. In these circumstances, no further complaint regarding the cornices could be made.

2. In oral submissions, counsel for Gemmill Homes developed this argument as a submission that by taking into account the possibility that Sanders may wish to bring a new complaint in respect of the cornices the Tribunal was effectively regarding s 36(1) of the Complaint Resolution Act as empowering the Tribunal to make an interim order. Counsel also submitted that it was not open for the Tribunal to contemplate that there could be a further order under s 36(1) as, at law, the only orders that can be made under that section are final orders to remedy a building service.

3. With respect to the submissions valiantly put by counsel, the difficulty with the argument is that the Tribunal did not find that if significant cracking continued after remedial work was performed a further complaint by Sanders against Gemmill Homes could be made and dealt with by the Tribunal by making a further order under s 36(1) of the Complaint Resolution Act.

4. The Tribunal found that there is a possibility that Sanders may wish to bring a new complaint in respect of the cornices after remedial work is carried out because it found as a matter of fact that it was unable to determine the cause of the significant cracking of the cornices.

5. When the matter was heard by the Tribunal, counsel, on behalf of Gemmill Homes, put to the Tribunal it was not necessary to determine why significant cracking of the cornices had occurred because Gemmill Homes accepted that the work was faulty and unsatisfactory and the Tribunal should make a remedy work order to make good the cornice cracking.[70]

   [70] ts 25, July 2017, page 46; document book, page 106.

6. The evidence before the Tribunal was that there was several possible causes of the significant cracking.  One of the causes could be defects in the roof structure.  Consequently, the Tribunal was of the opinion that the remedial work that Gemmill Homes had agreed to carry out to the roof framing should be completed prior to any work to remediate the cornices.

7. There was also evidence before the Tribunal that the significant cracking to the cornices had occurred over a long period of time and had not abated.

8. The Tribunal found that if it was to make a monetary order (which would result in a third party carrying out the remedial work) and further significant cracking occurred after the cornices were repaired, this would suggest that the cause of the cracking would be either deflection of roof timbers and/or temperature variations within the roof space relative to internal temperature of the dwelling.  The Tribunal contemplated that if this scenario was to occur there would be a need to explore the design responsibility of the roof structure and lack of ventilation of the roof space.

9. In these circumstances, the Tribunal contemplated that further work may be required to repair the cornices, and that if that was the case then if a remedial work order was made rather than a monetary order, Sanders would have a right to make a subsequent application to the Tribunal for an order under s 51 of the Complaint Resolution Act for a payment order.

10. Consequently, the fact that further cracking could occur was a matter that the Tribunal properly took into account when considering whether to make a remedial work order, or a payment order.  The Tribunal properly took into account that Sanders should not be left without a remedy for repair work that proves not to be effective.  In these circumstances, the Tribunal found that given that there is a possibility that the repair methodology on its own as proposed by Gemmill Homes may not resolve the ongoing significant cracking of the cornices because of the relevant consideration that there may be further complaint about cornice cracking and this was a matter that weighed strongly in favour of a remedial work order being made by the Tribunal.

11. As counsel for Sanders in the appeal points out, the Tribunal was alive to the possibility that the fixing of the current significant cracking of the cornices may not result in the cause of the cracking being resolved and to make a payment order would cause an injustice to Sanders as such an order would foreclose any further remedy available to Sanders pursuant to s 51.

12. For these reasons, I am not satisfied that the Tribunal erred as alleged in ground 4 of the appeal.

11.0  Ground 5 ‑ did the Tribunal fail to specify in its order how the regulated building service remedy is to be effected?

1. Order 2 of the order made by the Tribunal on 25 October 2017 is that Gemmill Homes must carry out and complete all necessary work at Sanders' dwelling so as to remedy the cause and effect of all cracking to the cornices and ceilings within the dwelling in a proper and efficient manner so as to achieve an aesthetically acceptable result, save for that cracking which is present in the areas described in the 'trial' order.

2. Gemmill Homes contends that s 36(1)(a) of the Complaint Resolution Act requires an order made by the Tribunal to state how the remedy is to be effected and not merely state that a defect must be remedied, that is, the order must state in detail how the remedy is to be carried out. It says if it were otherwise, the phrase 'as specified in the order' in s 36(1)(a) would be given no effect.

1. Gemmill Homes points out that the Tribunal in its reasons made clear that it was refraining from specifying how the cornices were to be remedied.  Gemmill Homes says that by not ordering which method should be used, the Tribunal has not resolved the dispute between the parties regarding how the cracking should be remedied.

2. An order of the Tribunal made under s 36(1)(a) is an order requiring the person who carried out a regulated building service to remedy the building service as specified in the order.

3. In Bond Corporation Holdings Ltd v Sulan,[71] Malcolm CJ observed that the meaning of the word 'specify' depends upon the context.  In that matter, the Full Court was called upon to construe the meaning of 'specify' in s 292(2)(a) of the Companies (Western Australia) Code (WA) (the Code).  Section 292(2)(a) applied to a direction to investigate the affairs of a company pursuant to s 291(3) of the Code.  Section 292(2)(a) provided that an instrument containing a direction shall specify the matters that are to be investigated.  The Chief Justice found the context of the meaning of the word specify in s 292(2)(a) and s 291(3) was such that 'specify' required definition of the subject matter of the investigation and the use of the word specify in such a case was simply 'make unambiguously clear'.[72]  In his Honour's opinion in that matter, a 'specification' of all of the affairs of the company from and including a specified date made unambiguously clear what was the subject matter of the investigation.

   [71] Bond Corporation Holdings Ltd v Sulan (1990) 3 WAR 49, 64.

   [72] Bond Corporation Holdings Ltd v Sulan (1990) 3 WAR 49, 64.

4. In this matter, the Tribunal was not invited to determine the cause of the significant cracking of the cornices and was presented with evidence that there were a number of possible causes for the occurrence of the defects to the cornices.  In such a case it was appropriate for the Tribunal to specify in the order that Gemmill Homes was to remedy the cause of all cracking to the cornices and ceilings within the dwelling in a proper and efficient manner so as to achieve an aesthetically acceptable result.  The use of the words 'to remedy the cause' in the order make it unambiguously clear that the remedial work is to embrace all possible causes of the faulty and unsatisfactory building service work that has resulted in the significant cracking.

5. However, I do agree that in light of the Tribunal's clear and unambiguous findings made about the method that is to be implemented to make good the cornices and ceilings,[73] to simply state in the order that Gemmill Homes is required to remedy 'the effect' of all cracking is not to specify how the regulated building service is to be remedied. Put another way, an order that simply requires Gemmill Homes to remedy the effect of the cracking is not to implement the findings made by the Tribunal as to how the defects in the work were to be remedied.

   [73] ts 15 August 2017, page 4.

6. For these reasons, I agree that order 2 is invalid as it does not specify the remedy, that is, the method the Tribunal found that is to be used to remedy the defects.

7. Order 2 is, however, capable of amendment to specify how the regulated building service is to be remedied.  In my opinion, an amendment could be made by deleting the words 'and effect' and by adding words that describe the method of remediation of the cornices as found by the Tribunal in its reasons for decision.[74]

   [74] ts 15 August 2017, page 4.

8. I will hear the parties as to the orders the court should make to give effect to the findings made in this appeal.

   I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

   VV
   ASSOCIATE TO THE HONOURABLE JUSTICE SMITH

   19 JUNE 2018

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION: GEMMILL HOMES PTY LTD -v- SANDERS [2018] WASC 179 (S)

CORAM:   SMITH J

HEARD:   22 JUNE 2018

DELIVERED          :   24 JULY 2018

FILE NO/S:   GDA 13 of 2017

BETWEEN:   GEMMILL HOMES PTY LTD

Appellant

AND

GEOFFREY FRANK SANDERS

Respondent

ON APPEAL FROM:

Jurisdiction              :   STATE ADMINISTRATIVE TRIBUNAL

Coram:   SENIOR MEMBER C RAYMOND

SENIOR SESSIONAL MEMBER R AFFLECK

Citation:   GEOFFREY FRANK SANDERS AND GEMMILL HOMES PTY LTD

File Number             :   CC 1205 of 2016

Catchwords:

Practice and procedure - Costs - Departing from general principle - Appeal properly brought - Appeal allowed in part - Both parties successful in part - Each party to bear own costs of appeal - Turns on own facts

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5(1), s 36(1)(a), s 36(1)(b)
Rules of the Supreme Court 1971 (WA), O 66 r 1

Result:

Each party is to bear own costs

Category:    B

Representation:

Counsel:

Appellant	:	Mr A K Sharpe
Respondent	:	Mr G R Dean

Solicitors:

Appellant	:	GV Lawyers
Respondent	:	Bostock & Ryan

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

Gemmill Homes Pty Ltd v Sanders [2018] WASC 179

SMITH J:

1. On 22 June 2018, I made an order that each party was to bear its own costs.  These are my reasons for making the order.

2. The general principle is that costs follow the event.[75]

   [75] Rules of the Supreme Court 1971 (WA) O 66 r 1.

3. In this matter, the appeal by Gemmill Homes Pty Ltd was allowed in part and the order made by the State Administrative Tribunal was varied to correct two errors in law.

4. The appeal arose out of an order made by the Tribunal on a review of an order made by a single member of the Tribunal who made a payment order under s 36(1)(b) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (Complaint Resolution Act). The order made by the single member arose out of a complaint being made by Geoffrey Frank Sanders under s 5(1) of the Complaint Resolution Act about work to a house not being carried out by Gemmill Homes in a proper and efficient manner or being faulty or unsatisfactory. The single member upheld the complaint in so far as the complaint related to cornice, ceiling and plaster cracking.

5. The Tribunal on a review of the decision of the single member set aside the payment order and made a building service remedy order which required Gemmill Homes to remedy the faulty work rather than pay an amount to Sanders to have the necessary work undertaken by a third party.[76]

   [76] Complaint Resolution Act s 36(1)(b).

6. Gemmill Homes appealed the decision of the Tribunal on the review.  Gemmill Homes effectively raised three issues in its grounds of appeal in this court.

7. The first issue was raised in grounds 1 to 4.  Gemmill Homes sought to vary the order of the Tribunal on the review to, in effect, reinstate a payment order.  Gemmill Homes was wholly unsuccessful on this issue.  However, I agreed (with one point put on behalf of Gemmill Homes in respect of grounds 1 and 2) that the Tribunal erred in law in making an observation that a person who makes a building service complaint is entitled to elect a remedy.  However, I was not satisfied that this error was a vitiating error, that is, an error that might have affected the Tribunal's decision on the review to make a building service remedy order.[77]

   [77] Gemmill Homes Pty Ltd v Sanders [2018] WASC 179 [136] ‑ [143].

8. The second and third issues were raised in the alternative to grounds 1 to 4.

9. The second issue was raised in ground 5 of the appeal and concerned an error of law that was unsuccessfully contested in part by Sanders.

10. The second issue was whether the order to perform remedial works contravened s 36(1)(a) of the Complaint Resolution Act by simply stating that Gemmill Homes was required to remedy the cause and effect of the cracking of the cornices and ceilings. Gemmill Homes was partly successful on this ground. I found that there was evidence before the Tribunal on the review that there were a number of possible causes for the occurrence of defects to the cornices and as the Tribunal on the review was not invited to determine the cause of the cracking it was appropriate to specify in the order that Gemmill Homes was to remedy the cause of all cracking to the cornices and ceilings within the dwelling in a proper and efficient manner so as to achieve an aesthetically acceptable result.[78]  I did, however, find that in light of the clear and unambiguous findings made about the method that is to be implemented to make good the cornices and ceilings, to simply state in the order that Gemmill Homes was required to remedy the effect of all cracking was not to specify how the regulated building service is to be remedied.[79]

    [78] Gemmill Homes Pty Ltd v Sanders [2018] WASC 179 [168].

    [79] Gemmill Homes Pty Ltd v Sanders[2018] WASC 179 [169].

11. The third issue went to errors of law raised in grounds 6 to 9 of the appeal.  Each of these grounds were conceded by Sanders.

12. The third issue was two-fold.  The first part of the issue was whether an interim order made by a single member of the Tribunal (which had been expressed to apply to particular rooms of the house) was valid and whether the interim order had effect as a final order, in relation to which the Tribunal on the review had no power to disregard.  The second part of the issue was whether the interim order had been revoked by a single member of the Tribunal prior to the hearing of the Tribunal on the review.  I found the interim order was plainly a 'trial' order and its intended effect was not final.[80]  I also found that the order was invalid as the interim order could not be carried out and the Tribunal on the review erred in having regard to the order.[81]  For these reasons, I found that grounds 6 to 9 had been made out.

    [80] Gemmill Homes Pty Ltd v Sanders [2018] WASC 179 [75].

    [81] Gemmill Homes Pty Ltd v Sanders [2018] WASC 179 [84].

13. The result of the appeal was to vary the order made by the Tribunal on the review.  The first amendment was to specify the particulars of the remedial method and the second was to remove the exclusion of certain rooms of the house from the order.

14. Although Gemmill Homes was not successful in seeking to set aside the building remedy order which could be said to be the main point of the appeal, it was successful in achieving certainty in the order in that there can be no question about how the effect of the cracking is to be remedied.  In addition, the remedial work is now to apply to the whole of the house rather than just the specified rooms of the house.  In these circumstances, the parties should be in a position where no uncertainty should arise in compliance by Gemmill Homes in remedying the effect of the cracking of the cornices, plaster and ceilings.

15. Gemmill Homes and Sanders were both successful in part in the appeal.  Whilst it could be said that Sanders may have had more success in the points put on his behalf in the appeal, it could not be said that Gemmill Homes did not properly bring the appeal before the court to correct errors of law as found by the court.  For this reason, I formed the opinion that the general principle as to costs should be departed from and made an order that each party was to bear its own costs of the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

VV
ASSOCIATE TO THE HONOURABLE JUSTICE SMITH

24 JULY 2018