GHIANN PTY LTD and ACCENT ON HOMES PTY LTD

[2005] WASAT 320

GHIANN PTY LTD and ACCENT ON HOMES PTY LTD [2005] WASAT 320

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2005] WASAT 320
Act:	BUILDERS' REGISTRATION ACT 1939 (WA)
Case No:	VR:283/2005	Heard:	27 SEPTEMBER 2005
Coram:	MR C RAYMOND (SENIOR MEMBER)	Delivered:	12/12/05
No of pages:	5	Judgment Part:	1 of 1
Result:	Application granted
Category:	B
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Parties:	GHIANN PTY LTD ACCENT ON HOMES PTY LTD
Catchwords:	Builders' Registration Act 1939 ­ Application for leave to review decision of Building Disputes Tribunal
Legislation:	State Administrative Tribunal Act 2004 (WA), s 27 State Administrative Tribunal Rules 2004 (WA), r 9
Case References:	Nil Nil
Orders	1. The time for the bringing of this application for leave to review the decision of the Building Disputes Tribunal reflected in Order to Pay no 149/2004/05 is extended.,2. Leave is granted to review the said decision.,3. The application is adjourned to a directions hearing together with matter no VR235/2005 on 19 January 2006.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : BUILDERS' REGISTRATION ACT 1939 (WA) CITATION : GHIANN PTY LTD and ACCENT ON HOMES PTY LTD [2005] WASAT 320 MEMBER : MR C RAYMOND (SENIOR MEMBER) HEARD : 27 SEPTEMBER 2005 DELIVERED : 12 DECEMBER 2005 FILE NO/S : VR 283 of 2005 BETWEEN : GHIANN PTY LTD

Applicant

AND

ACCENT ON HOMES PTY LTD
Respondent

Catchwords:

Builders' Registration Act 1939 ­ Application for leave to review decision of Building Disputes Tribunal

Legislation:

State Administrative Tribunal Act 2004 (WA), s 27

State Administrative Tribunal Rules 2004 (WA), r 9

Result:

Application granted

(Page 2)

Category: B

Representation:

Counsel:

Applicant : Mr G Wates and Ms J Wates
Respondent : Mr G Slattery

Solicitors:

Applicant : Self-represented
Respondent : Arns and Associates

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

Nil

Case(s) also cited:

Nil


(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of the Tribunal's decision

1 The applicant applied for an extension of time to apply for leave to review the decision of the Building Disputes Tribunal (Disputes Tribunal) reflected in an order to pay no 149/2004­05 dated 30 March 2005.

2 The State Administrative Tribunal (Tribunal) concluded that one of the grounds of the proposed review relating to loss of rent had reasonable prospects of success. The Disputes Tribunal's decision in this respect was open to doubt because of the Disputes Tribunal's failure to make separate assessments for each of the four dwelling units in question, which were each the subject of separate building contracts. While other grounds of review were raised which had doubtful prospects of success, the Tribunal took into account that leave had been granted to review the decision in a related application commenced by the respondent so that the most appropriate course was to allow all matters in issue to be reviewed.

3 The delay in bringing the application arose from the applicant's failure to realise that it was not open to bring a cross­appeal in the other proceedings. The applicant proceeded with reasonable promptness to lodge the application once it became aware of the true position, and as the proposed review had reasonable prospects of success in relation to at least one ground of the proposed review, the Tribunal considered it appropriate to grant the extension of time sought together with leave to review the Dispute Tribunal's decision.

The application

4 The applicant has applied for an extension of time and for leave to review a decision of the Building Disputes Tribunal (Disputes Tribunal) reflected in an order to pay dated 30 March 2005.

5 The application was made on 2 June 2005, which is something in excess of two months past the date permitted for applying for a review ­ r 9 of the State Administrative Tribunal Rules 2004 (WA).

6 The delay in making the application occurred in the following circumstances. On 26 April 2005, the respondent herein made a separate application to the State Administrative Tribunal (Tribunal) to review the same decision, being matter no VR 235/2005. A directions hearing was heard in that matter on 26 May 2005 when the applicant was advised that there was no procedure for bringing a cross­appeal in those proceedings and that a fresh application would have to be made.

(Page 4)

7 The reasons for decision in the application VR 235/2005 are being handed down simultaneously with these reasons. As reflected therein, directions were made in both matters that regard would be had to the documents filed on either file. Reference is accordingly made to those reasons for decision.

The grounds for review

8 The grounds for review raise many issues. In a number of instances, the applicant claims to be entitled to the difference between what was originally claimed by the applicant and the amount awarded by the Disputes Tribunal. This is the position in relation to the brick build­up claim, an alleged failure on the part of the respondent to provide exhaust venting, the loss of rent claim and in relation to numerous items of alleged defective work.

9 The loss of rental claim asserts that an insufficient period of time was allowed. The Tribunal adopts the reasons for decision given in matter VR 235/2005 in relation to this issue. The Tribunal considers that the conclusions of the Disputes Tribunal in relation to the loss of rental claim are open to doubt.

10 A further ground is raised in relation to the cost of having a caveat removed from the applicant's property. In relation to that matter, the Disputes Tribunal's reasons for decision reflect, at par 1.3, that any claim in respect of the caveat had fallen away.

11 The Disputes Tribunal's findings in relation to defects and compensation awarded were, obviously, open to it on the evidence. It would be an exhaustive task to endeavour to assess each of the issues raised. Having regard to the conclusions which the Tribunal has reached in relation to the respondent's application VR 235/2005, and given that the applicant herein has reasonable prospects of success in relation to the loss of rental/delay claim, the Tribunal considers that the most appropriate course, subject only to consideration of the extension of time issue, is to grant leave to the applicant for the decision to be reviewed as a whole. Directions will, however, have to be issued to ensure that the matters in issue are properly defined so that the final review hearing can be conducted in a proper and orderly manner.

12 With regard to the extension of time, the delay has been explained, by the circumstances outlined above, and as there is some merit in the proposed review, and as no prejudice will be suffered by the respondent, the Tribunal will grant the necessary extension of time.

(Page 5)

Orders

13 For the above reasons, the Tribunal orders as follows:

1. The time for the bringing of this application for leave to review the decision of the Building Disputes Tribunal reflected in order to pay no 149/2004­05 is extended.

2. Leave is granted to review the said decision.

3. The application is adjourned to a directions hearing together with matter no VR235/2005 on 19 January 2006.

I certify that this and the preceding [13] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR C RAYMOND, SENIOR MEMBER