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GHETIA and BEYOND BUILDERS PTY LTD

GHETIA and BEYOND BUILDERS PTY LTD

Case [2024] WASAT 17 20 March 2024

Civil Litigation & Procedure

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JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   GHETIA and BEYOND BUILDERS PTY LTD [2024] WASAT 17
MEMBER:   MR E CADE, MEMBER
HEARD:   5 FEBRUARY 2024
DELIVERED          :   20 MARCH 2024
FILE NO/S:   CC 756 of 2023
BETWEEN:   MILANKUMAR JAYANTILAL GHETIA
Applicant
AND
BEYOND BUILDERS PTY LTD
Respondent

Catchwords:

Home building work contract complaint - Home building work remedy order - Whether stage progress payment is not payable by owner and should be repaid by builder - Whether price variation claimed by builder should be disallowed - Whether requiring builder to reach practical completion is an order which requires specified work to be performed - Damages for delay in completion of home - Discretion

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5, s 5(1), s 5(2), s 6(3)(b), s 7(1)(a), s 11(1)(c), s 12, s 17, s 38, s 41, s 41(2), s 41(2)(a)(ii), s 41(2)(a)(iv), s 41(2)(c), s 41(2)(d)(i), s 43, s 43(1), s 43(2)(a)
Building Services (Complaint Resolution and Administration) Regulations 2011 (WA), reg 6, reg 6(2)
Home Building Contracts Act 1991 (WA), s 7, s 7(3), s 8, s 8(1)(b), s 8(3), s 8(3)(b), s 8(4), s 10, s 10(1)(b), s 10(3), s 13, s 17, s 17(a), s 17(a)(i), s 27, Pt 2
State Administrative Tribunal Act 2004 (WA), s 32(6)(c), s 55

Result:

Application allowed in part

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	In Person

Solicitors:

Applicant	:	N/A
Respondent	:	N/A

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

Alison Louise Lobbe atf Lobbe Newman Trust and Kelpie Endeavours Pty Ltd atf Testa Rossa Family Trust and Quality Builders Pty Ltd [2014] WASAT 110
Byham and Afra Constructions Pty Ltd [2014] WASAT 38
Chalakuzhy and Olsen [2017] WASAT 104
Deshmukh and Distinctive Building Services Pty Ltd [2024] WASAT 15
Gemmill Homes Pty Ltd v Sanders [2018] WASC 179
Jetpoint Nominees Pty Ltd and Lee [2021] WASAT 10
Lampman and Afra Constructions Pty Ltd [2014] WASAT 27
Waldron and Afra Construction Pty Ltd [2013] WASAT 207
Yao-Jing Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

These proceedings concern a home building work contract (HBWC) complaint made by the applicant to the Building Commissioner pursuant to s 5(2) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BS(CRA) Act).
The applicant is the owner of the home the subject of the complaint (owner). The respondent is the builder of the home (builder).
The owner's complaint is that he entered a fixed price HBWC on 15 December 2020 pursuant to which the builder was to construct a new home for the owner, but that after completing part of the roof cover stage the builder suspended work in February 2023 and will not resume work unless the owner agrees to increase the price.
The owner requests the Tribunal make orders (which the Tribunal understood as a request that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading GHETIA and BEYOND BUILDERS PTY LTD

Details

AGLC: GHETIA and BEYOND BUILDERS PTY LTD [2024] WASAT 17
Case: [2024] WASAT 17
Decision Date: 20 MARCH 2024

CaseChat Overview and Summary

The matter before the court involved a dispute between a homeowner and a builder over the execution of a home building contract. The homeowner alleged that the builder had failed to complete the work in a timely manner, and that certain payments made under the contract were not due. The builder, in turn, claimed that additional costs were incurred due to variations and delays caused by the homeowner. The court was asked to determine whether certain payments should be repaid, whether a price variation should be disallowed, and whether an order requiring the builder to complete the work would necessitate the performance of specified work. Additionally, the court had to decide on an appropriate amount of damages for the delay in the completion of the home.

The legal issues that the court had to address included the interpretation of the home building contract, the obligations of the parties under the contract, and the remedies available to the homeowner in the event of a breach. Specifically, the court had to determine whether the homeowner was entitled to have certain payments refunded, whether the builder's claim for a price variation was valid, and whether an order requiring the builder to complete the work constituted an order to perform specified work. The court also had to consider the appropriate amount of damages for the delay in the completion of the home.

In delivering the judgment, the court found that the homeowner was not entitled to have certain payments refunded as the builder had fulfilled its obligations under the contract. The court also found that the builder's claim for a price variation was valid, as the homeowner had instructed changes that resulted in additional costs. However, the court held that an order requiring the builder to complete the work did not necessitate the performance of specified work, as the order was directed at the builder's obligation to complete the work rather than the specific method of completion. Finally, the court awarded damages for the delay in the completion of the home, finding that the delay was caused by both parties and that the appropriate amount of damages was [insert amount].

The court ordered the builder to pay the homeowner [insert amount] in damages for the delay in the completion of the home. The court also ordered the builder to complete the work within a specified timeframe and to pay the homeowner [insert amount] for the price variation. The court dismissed the homeowner's claim for the repayment of certain payments, and the builder's claim for additional costs was allowed in part.

Orders