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…
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- AGLC
- GHETIA and BEYOND BUILDERS PTY LTD [2024] WASAT 17
- Case
- [2024] WASAT 17
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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