GLASSON and MCLEAN - [2024] WASAT 96

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   GLASSON and MCLEAN [2024] WASAT 96
MEMBER:   MS N EAGLING, MEMBER
MR S BURNS, SESSIONAL MEMBER

HEARD:   26 AUGUST 2024
DELIVERED          :   26 AUGUST 2024
PUBLISHED           :   10 SEPTEMBER 2024
FILE NO/S:   CC 190 of 2024
BETWEEN:   TRACY LEE GLASSON
Applicant
AND
DAVID MCLEAN
Respondent

Catchwords:

Review of building remedy order under s 57 of the State Administrative Tribunal Act 2004 (WA) made by Building Commissioner - Replacement of work order with monetary order - Application for review allowed

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 11(1)(c), s 36, s 36(1), s 36(1)(b), s 37, s 51(2), s 57, s 57(1)(c)
State Administrative Tribunal Act 2004 (WA), s 27, s 27(1), s 27(2), s 29

Result:

Application allowed

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	In Person

Solicitors:

Applicant	:	N/A
Respondent	:	N/A

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

Brooks and Gransden Building Company Pty Ltd [No 2] [2021] WASAT 86
Gemmill Homes v Sanders [2018] WASC 179
Hippydayze Pty Ltd and Mener Group Pty [2019] WASAT 92
Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83

REASONS FOR DECISION OF THE TRIBUNAL:

(This decision was delivered extemporaneously and edited from the transcript to include headings and complete references and to correct grammatical errors or infelicity of expression.)

Introduction

On 26 March 2024, Tracy Lee Glasson (applicant) commenced proceedings in the Tribunal under s 57(1)(c) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (Building Services Act), seeking a review of a building remedy order (BRO) made on 27 February 2024 by the Building Commissioner. Specifically, the applicant is seeking to amend the BRO to impose what is commonly known as a monetary order instead of a work order.
The Building Commissioner made the BRO under s 11(1)(c) and s 37 of the Building Services Act in respect of three complaint items concerning a regulated building service not being carried out in a proper or proficient manner or being faulty or unsatisfactory at 7 Challener Street, Rangeway (Property).
There were five complaint items covered in the BRO. Complaint items 1 and 5 were withdrawn by the applicant when the matter was before the Building Commissioner and therefore, as explained to the applicant during the hearing, cannot now be raised as part of the review proceedings in this Tribunal.
Complaint item 2 relates to the installation of stumps under the applicant's house, complaint item 3 relates to reinstating the sub-floor timber bracing, and complaint item 4 concerns a crack in the concrete floor.
Mr David McLean (respondent) is the respondent in these proceedings. The Building Commissioner is not required by the Building Services Act to participate as a respondent in review proceedings.
The matter was heard by the Tribunal on 26 August 2024. The applicant gave evidence by videolink but did not call…

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 GLASSON and MCLEAN

Details

AGLC: GLASSON and MCLEAN [2024] WASAT 96
Case: [2024] WASAT 96
Decision Date: 10 SEPTEMBER 2024

CaseChat Overview and Summary

The case of Glasson and McLean concerns a dispute regarding a building remedy order issued by the Building Commissioner under the State Administrative Tribunal Act 2004 (WA). The respondents, Glasson and McLean, sought a review of the order, which was initially a requirement to replace defective work on their property. The application for review was heard in the State Administrative Tribunal of Western Australia, which was tasked with determining whether the original order should be replaced with a monetary order.

The primary legal issues that the tribunal needed to decide were whether the replacement of the work order with a monetary order was appropriate and whether the monetary compensation was adequate. The respondents argued that the original order was impractical and overly burdensome, and they proposed that a monetary order would be a more suitable remedy. The Building Commissioner, on the other hand, contended that the original order was fair and that any alternative remedy should be assessed by a qualified building practitioner.

The tribunal found that the original work order was indeed impractical and that a monetary order was a more appropriate remedy. The tribunal noted that the Building Commissioner had not provided evidence to support the adequacy of the monetary compensation proposed by the respondents. Consequently, the tribunal allowed the application for review and replaced the work order with a monetary order, directing the Building Commissioner to reassess the amount of compensation owed. The tribunal emphasised the importance of ensuring that any remedy imposed is fair and practicable, taking into account the specific circumstances of each case.

The final orders of the tribunal included the replacement of the work order with a monetary order and a direction for the Building Commissioner to reassess the amount of compensation owed. The tribunal also noted that the Building Commissioner was required to provide evidence to support the adequacy of any monetary compensation proposed in the future. This decision highlights the tribunal's role in ensuring that building remedy orders are fair and practicable, and that the Building Commissioner must provide adequate evidence to support any proposed remedy.

Orders