GLASSON and MCLEAN
[2024] WASAT 96
•10 SEPTEMBER 2024
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 Complaint items 1 and 5 were withdrawn by the applicant when the matter was before the Building Commissioner and therefore, as explained to the applicant during the hearing, cannot now be raised as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 any evidence on her behalf. The respondent gave evidence by telephone and also called no evidence on his behalf. There is no dispute between the parties, and the Tribunal is satisfied based on all the evidence, that the respondent carried out a regulated building service in respect of the complaint items 2, 3 and 4. The two remaining issues which the Tribunal must consider and determine today are:
(1)whether the building work, the subject of complaint items 2, 3 and 4, was carried out in a proper or proficient manner or was faulty or unsatisfactory; and
(2)whether the BRO made by the Building Commissioner should be revoked and instead be replaced with a monetary order.
Jurisdiction of the Tribunal
The Tribunal in this proceeding is reviewing a BRO made by the Building Commissioner under s 37 of the Building Services Act. A BRO is described in s 36 of the Building Services Act as either being a work order, a monetary order or a compensation order. This Tribunal may, pursuant to s 57(1)(c) of the Building Services Act, review a BRO made by the Building Commissioner. The relevant time period within which an application for review can be made is 28 days and in this case the applicant was just within time.
An application for review under s 57 of the Building Services Act should not be confused with an application pursuant to s 51(2) of the Building Services Act, which allows for an application to be made to revoke a work order and replace it with a monetary order if a BRO ordering work to be done has not been complied with.
The nature of this review hearing is by way of a hearing de novo, and it is not confined to matters that were before the decision-maker, but may involve the consideration of new material, whether or not it existed at the time the decision was made: s 27(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). In the decision of Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83 at [122] the Court of Appeal held that the provisions in s 27 of the SAT Act make it plain that the applicant for review does not bear any legal or practical onus of identifying error in the original decision-maker's decision or showing that there should be some departure from that decision. Instead, the purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review: s 27(2) of the SAT Act.
The Tribunal is to act according to equity, good conscience, and the substantial merits of the case without regard to technicalities and legal forms. The powers of the Tribunal on review are found in s 29 of the SAT Act and we may make any order which we consider appropriate, including an order to affirm the decision that is being reviewed, vary that decision, or set it aside and substitute our own decision.
Applicant's evidence
The applicant gave evidence in support of her application. She presented as very emotional and stated that her dealings with the respondent had caused her immense stress. She remained firm in her view that the respondent did not complete the work proficiently and lied about which work was necessary to be completed in order to take advantage of her.
The applicant said that she does not trust the respondent or anyone associated with him. She agreed that she ordered the respondent from the property and did not allow him to return. In response to a question by the Tribunal about whether, if the Tribunal made an order today allowing the respondent to remedy the work, what her position would be, she said that she would not allow him access to the property. She accepted this may impact on the amount of money she would receive.
Respondent's evidence
The respondent gave evidence that he is a certified carpenter of 40 years or so. He said that, in an effort to resolve this matter, he has offered the applicant her deposit back (being $3,000 which was 50% of the total cost of the quote), and also offered for the remedial work to be done by someone else at his cost. He contacted the applicant to make a time to complete the work and also for the work to be inspected so that someone else could complete the work, but he was refused both times by the applicant.
In relation to the work that had been completed, his position was that he had done the best job he could, given the difficult circumstances of the job that he was dealing with.
However, in response to questions by the Tribunal, he seemed to accept that the work he had done did not comply with the relevant Australian Standards as to the depth of the stumps underground. He denied he was aggressive towards the applicant and said that he never wanted his relationship with the applicant to have developed in the way that it had.
Issue 1: Whether the building work, the subject of complaint items 2, 3 and 4, was carried out in a proper or proficient manner or was faulty or unsatisfactory
The first issue the Tribunal needs to determine is whether the work was faulty or unsatisfactory. In relation to item 2 (the stumps), the Tribunal is of the view that the work is faulty and unsatisfactory as the replaced stumps do not meet the minimum embedment requirement of 450 millimetres, as referenced in Australian Standard 1684.2.
In relation to item 3 (the bracing), the Tribunal accepts the evidence of the respondent and is aware, based on its own industry knowledge, that the bracing is generally completed at the end of the job. Given that in this case both parties accepted and gave evidence that the applicant had asked the respondent to leave the property before the work was completed and did not allow the respondent to come back, the Tribunal is of the view that this should not be assessed as faulty and unsatisfactory work.
In relation to item 4 (the cracking), the Tribunal is of the view that there is not sufficient evidence to assess this as faulty and unsatisfactory work. The Tribunal accepts, based on the proposed BRO of the Building Commissioner, that the crack appears to be new but as the Building Commissioner has noted, it is minor in nature and is not a structural crack.
However, in any event, even if the Tribunal is wrong on this point, the applicant has only provided a quote in relation to this complaint item with the amount of $1,000 stated. There is no breakdown on the quote as to the work required or the costings for it. The applicant has not called evidence in relation to this quote and the Tribunal finds that there is not a sufficient basis to make a monetary order in relation to this complaint item.
Issue 2: Whether the BRO for complaint item 2 should be replaced with a monetary order?
In relation to complaint item 2, the question is what is the appropriate form of the BRO? The applicant is seeking a monetary order based on the breakdown of the relationship between the parties and also the fact that she has lost confidence in the respondent's ability to perform the work.
In Gemmill Homes v Sanders [2018] WASC 179 at [124] (Gemmill Homes), the Supreme Court held that there is no right for a party to a complaint to elect whether a works order or monetary order is made. However, the applicant's preference and reasons for seeking a monetary order are relevant matters for the Tribunal to consider when determining the type of BRO to make (at [139]). The Tribunal should take into account the current state of the relationship between the parties and whether the relationship is such that, if a BRO is made, such an order is workable, or whether the state of animosity between the parties is such that the cooperation necessary to carry out an order is absent, so that a monetary order is the appropriate order (at [120]).
In Gemmill Homes at [135] the Court stated that the Tribunal has no power to compel an owner to allow access to a property in order to allow a works order to be carried out. However, 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. It may be appropriate in those circumstances to limit the amount of the monetary compensation to the amount that it would have cost the respondent to fix the work: see Brooks and Gransden Building Company Pty Ltd [No 2] [2021] WASAT 86 at [34].
The Tribunal has previously considered what other matters may be relevant to the discretion of the Tribunal under s 36(1) when determining the type of BRO to be made. In Hippydayze Pty Ltd and Mener Group Pty [2019] WASAT 92 (Hippydayze), the Tribunal at [126] referred to the following relevant factors, which it stated were not exhaustive:
… Other relevant matters which can be taken into account when the Tribunal exercises its discretion, particularly when exercising its discretion to make a building remedy order in monetary terms, include whether there has been an irretrievable breakdown in the relationship between the parties. Whether an owner has justifiably lost confidence in the workmanship and skill of the respondent. Whether the respondent has attempted to remedy the regulated building service previously unsuccessfully, and whether the respondent has refused to perform remedial work when invited to do so …
We find that a BRO in the form of a monetary order should be made against the respondent for the following reasons:
(a)the relationship between the parties has deteriorated to such an extent that the applicant has said she will not allow access to the property; and
(b)the respondent's evidence was that he had done all he could in relation to this work, so we have some concerns about whether the respondent is able to carry out the work.
The next question is what is the amount of the monetary order which should be made? Pursuant to s 36(1)(b) of the Building Services Act, the Tribunal may only make an order in respect of the costs of remedying the building service which the Tribunal considers reasonable.
The applicant has provided two quotes from Seaside, with the latest quote being for $10,500 in relation to complaint item 2. However, this quote does not provide any breakdown between materials and labour and the applicant did not call any evidence from anyone from Seaside who could give evidence explaining the basis for the amount in the quote. The applicant was informed by the learned Senior Member at the recent directions hearing for this matter that the Tribunal would need to be satisfied that she had proven her case, and that the Tribunal may have questions about how the amounts in the quotes are calculated. The Senior Member suggested to the applicant that she could call evidence by telephone, but she has chosen not to do so.
The respondent gave evidence that, if he was asked to quote on the same job again today, the amount would still be in the amount of $6,000, based on the amount of $200 per stump. He stated that 40% cent of that cost was comprised of materials and 60% was comprised of labour. Based on the Tribunal's industry knowledge, we find the respondent's quote to be reasonable whereas the quote provided by the applicant to be very inflated.
In the circumstances, the Tribunal finds that the appropriate amount of money to award to the applicant in relation to complaint item 2 is $6,000.
Orders
The Tribunal orders:
1.The application for review is allowed.
2.The decision of the Building Commissioner to make a building remedy order BC 02023-3376 made on 27 February 2024 requiring the respondent to rectify building services not carried out in a proper or proficient manner or being faulty or unsatisfactory at 7 Challener Street, Rangeway is set aside and substituted with an order in the following terms:
(a)Complaint item 2:
(i)Pursuant to s 36(1)(b) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), the respondent must pay the applicant the sum of $6,000 within 28 days from the date of this order.
(b)Complaint item 3:
(i)This complaint item is dismissed.
(c)Complaint item 4:
(i)This complaint item is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS N EAGLING, MEMBER
10 SEPTEMBER 2024
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