GROVE and THE CARPORT CO PTY LTD
[2022] WASAT 39
•11 MAY 2022
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION: GROVE and THE CARPORT CO PTY LTD [2022] WASAT 39
MEMBER: MS N OLDFIELD, MEMBER
HEARD: 21 APRIL 2022
DELIVERED : 11 MAY 2022
FILE NO/S: CC 219 of 2022
BETWEEN: MECHIEL GROVE
Applicant
AND
THE CARPORT CO PTY LTD
Respondent
Catchwords:
Home building work contract (HBWC) complaint - Contract terms - Time to complete construction - Whether breach of contract - Remedy order - Turns on own facts
Legislation:
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(2), s 11(d), s 41, s 43(1)
Home Building Contracts Act 1991 (WA), s 3
State Administrative Tribunal 2004 (WA), s 63(2)
Result:
Application successful
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | Non-Appearance |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
In December 2017 the applicant engaged the respondent to install a double carport and a separate single carport at his home (the property). On 28 June 2019 the Town of Cambridge issued a building permit for the construction of one double carport at the property.
The respondent commenced work on or about 20 January 2020 and installed two concrete post footings. The respondent failed to return to the property and the building permit expired on 28 June 2021.
On 23 July 2021 the applicant lodged a home building work contract (HBWC) complaint with the Building Commissioner and on 16 February 2022 the Building Commissioner referred the complaint to the Tribunal for determination.
Issues for determination
The issues for determination by the Tribunal are:
(1)Did the parties enter into a HBWC?
(2)If the answer to (1) is yes, did the respondent breach the HBWC?
(3)If the answer to (2) is yes, what (if any) is the appropriate HBWC remedy order?
Tribunal proceedings
The respondent did not attend the directions hearing held on 15 March 2022 and did not comply with the orders of the Tribunal made on that day.
Written notice of the final hearing was sent on 22 March 2022 by post and email to the respondent. The email of the respondent was verified as the email used by the respondent when corresponding with the Building Commissioner.
The respondent did not attend the final hearing on 21 April 2022. On the day of the hearing, attempts were made to contact the respondent by telephone and email, without success. The respondent did not contact the Tribunal on or prior to the day of the hearing to request an adjournment.
In accordance with s 63(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the final hearing was held in the absence of the respondent. Accordingly, the evidence on which the Tribunal relies in the determination of this application is the Hearing Book (HB) (compiled by the Tribunal from documents lodged with or generated by the Tribunal in relation to this matter and provided to the parties prior to the hearing) and the oral testimony of the applicant.
Legislative framework
Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act)
The entitlement to make a HBWC complaint to the Building Commissioner is contained in s 5(2) of the BSCRA Act:
An owner or builder under a home building work contract may make a complaint to the Building Commissioner about a matter referred to in the Home Building Contracts Act 1991 (WA) (HBC Act) section 17 or 20 or Schedule 1 clause 5.
If the Building Commissioner refers the complaint to the Tribunal pursuant to s 11(d) of the BSCRA Act, under s 43(1) the Tribunal may make a HBWC remedy order if satisfied such an order is justified and s 41 provides those orders may include orders requiring specified work be done and orders for the payment of a specific sum.
Section 3 of the BSCRA Act defines the terms 'home building work' and 'home building work contract' to have the meaning provided in the HBC Act.
Home Building Contracts Act 1991 (WA) (HBC Act)
Section 3 of the HBC Act relevantly defines:
1)'home building work' as constructing or carrying out any associated work in connection with an existing dwelling;
2)'home building work contract' as a contract between a builder and owner whereby the builder performs home building work;
3)'associated work' as including carports and garages;
4)'builder' as being a person who carries on, or two or more persons who together carry on, a business which consists of or includes the performing of home building work for others; and
5)'owner' in relation to a contract as being the person for whom or which home building work is to be performed under the contract.
Material facts
The Tribunal makes the following finding of fact. All monetary sums include GST unless stated to the contrary.
1)On or about 22 November 2017 the respondent provided to the applicant a quotation[1] for the construction of a double carport plus a single carport at the applicant's property. The total quoted cost was $51,820, comprised of $2,280 in relation to the planning and approval process, $33,750 in relation to the double carport and $15,790 in relation to the single carport.
[1] HB pages 21-23.
2)The respondent's client agreement and related notices[2] were sent by email by the respondent to the applicant on 11 December 2017.
[2] HB pages 25-49.
3)The applicant electronically signed acceptance of the quotation on 22 December 2017.[3]
[3] HB page 24.
4)On 22 December 2017 the applicant sent an email to the respondent regarding his intention to pay for the planning and approval stage of the carport construction. The respondent replied by email on the same day confirming its bank account details.
5)On 29 December 2017 the respondent sent an email to the applicant acknowledging receipt of the signed quotation and the applicant's payment.
6)The planning and approval process was protracted. The Town of Cambridge declined to approve the construction of two carport structures at the property and the parties verbally agreed to proceed with the construction of the double carport only.
7)On 28 June 2019 the Town of Cambridge granted a building permit[4] for the construction of one double carport. The building permit was valid until 28 June 2021.
8)The respondent notified the applicant of the approval by email on 1 July 2019. The applicant met with the respondent's director Mr Alan Benjamin Dickson[5] to discuss details of the carport construction and the applicant confirmed details of this conversation to the respondent by email on 28 July 2019.
9)In or about October 2019 the applicant telephoned the respondent to enquire why construction had not commenced. In that telephone conversation Mr Dickson stated to the applicant a deposit was required before work would start. The parties verbally agreed the applicant would pay a deposit of $15,000 with the balance due on completion and the respondent would complete construction by Christmas 2019.
10)The applicant paid the respondent $5,000 on 27 October 2019 and $10,000 on 30 October 2019.
11)There followed a protracted series of telephone calls and emails between the applicant and respondent, the applicant requesting construction begin and the respondent providing various reasons for the delay.
12)The respondent attended the property between 20 January 2020 and 7 February 2020 during which time two concrete post footings were installed.[6]
13)The respondent has not performed any further works at the property.
Did the parties enter into HBWC?
[4] HB pages 80-82.
[5] HB page 159.
[6] HB pages 157-158.
The parties clearly fall within the ambit of the HBC Act definitions of 'owner' and 'builder' and the construction of a carport falls within the definition of 'home building work'. Accordingly, the Tribunal finds the parties entered into a HBWC on 22 December 2017, initially comprised of the quotation which the applicant electronically signed on 22 December 2017 and the respondent's 'client agreement' document sent to the applicant on 11 December 2017.
Did the respondent breach the HBWC?
The applicant's complaint relates to the extensive delays in completing the works agreed to be performed under the HBWC. The respondent provided the Tribunal no explanation for the delay.
Clause 7 of the HBWC relevantly provides once the parties have entered into the contract the builder 'will commence the Work on a date as agreed between us' and 'the time within which the Work is to be completed is to be agreed between us'.
Based on the evidence provided, the Tribunal finds the parties verbally agreed the respondent would commence work within a reasonable time following the applicant's payment of $15,000 and the respondent would complete the works on or before 24 December 2019. Accordingly, the Tribunal is satisfied the respondent has breached the HBWC.
What is the appropriate HBWC remedy order?
The applicant seeks repayment of the $15,000 paid to the respondent in October 2019. In the absence of any evidence or submissions to the contrary, the Tribunal considers this reasonable.
The Tribunal will make a HBWC remedy order that the respondent pay the applicant the sum of $15,000 within 28 days.
Orders
The Tribunal orders:
1.The application is granted.
2.Pursuant to s 41(2)(c) and s 43(1)(a) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), the respondent shall pay the applicant the sum of $15,000 within 28 days of the date of this order.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS N Oldfield, MEMBER
11 MAY 2022
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