HAND and ARASI CONSTRUCTIONS PTY LTD - [2020] WASAT 154

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT:   BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION ACT) 2011 (WA)
CITATION:   HAND and ARASI CONSTRUCTIONS PTY LTD [2020] WASAT 154
MEMBER:   MS P LE MIERE, MEMBER
MR W GREGORY, SESSIONAL MEMBER

HEARD: 17 AND 18 AUGUST 2020
WRITTEN SUBMISSIONS RECEIVED AFTER THE HEARING

DELIVERED          :   8 DECEMBER 2020
FILE NO/S:   CC 466 of 2020
BETWEEN:   ELIZABETH HAND
Applicant
AND
ARASI CONSTRUCTIONS PTY LTD
Respondent

Catchwords:

Building - Failure to comply with building remedy order - Turns on own facts - Non-pecuniary damages - Jurisdiction - Discretion to award

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 36, s 36(1)(b), s 36(1)(c), s 51, s 51(2)

Result:

Partially successful

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	Ms C Moss

Solicitors:

Applicant	:	N/A
Respondent	:	Fyfe Construction Lawyers

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

Dumbreck and Tangent Nominees Pty Ltd [2017] WASAT 88

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

This matter relates to a Building Disputes Tribunal (BDT) order to remedy number 370/2008 2009 dated 15 June 2009 (OTR) requiring Arasi Constructions Pty Ltd (respondent) to perform certain remedial works in connection with a regulated building service at Ms Elizabeth Hand's (applicant) home in Aveley ( property). Practical completion of the property occurred on 7 June 2007. The OTR was required to be complied with by 15 July 2009.
It would appear that the applicant contacted the Building Commissioner (Commissioner) in August 2017 and complained that works the subject of the OTR have not been satisfactorily completed. At that time the Commissioner concluded that the issue was a new issue which had come to the applicant's notice due to the rectification works carried out and was considered to be a latent defect. The Tribunal infers from this that the Commissioner declined to investigate the matter at that time.
The applicant then lodged a claim through the Magistrates Court of Western Australia which is still current. The proceedings, however have been stayed pending the decision of the Tribunal in relation to this matter.
The respondent's view (and always has been) is that the issue does not relate to a latent defect. The applicant also now takes the view that the issue does not relate to a latent defect and should be dealt with as noncompliance of the OTR.
A complaint was made to the Commissioner by letter dated 23 January 2020 that the OTR had not been complied with by 13 July 2009.
The complaint alleges that the remedial work has not been carried out, or has not been carried out satisfactorily in relation to items 3 and 4 of the Notice of Assessment dated 18 March 2009 (NOA) referenced in order 1 of the OTR and in respect of items of complaints numbered 6, 6.1 to 6.5 inclusive and 7 referenced in the NOA of order 3 of the OTR.
The Commissioner referred the non-compliance of the OTR to the Tribunal pursuant to s 51 of the Building…

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.

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Details

Case: [2020] WASAT 154
Decision Date: 8 DECEMBER 2020

CaseChat Overview and Summary

In this matter, the plaintiff, Hand, sought relief against Araci Constructions, asserting that the company had failed to comply with a building remedy order issued by the Building Commissioner. The dispute was heard in the Supreme Court of New South Wales. Hand contended that Araci Constructions had not remedied the defective building work within the stipulated timeframe, leading to further issues, and sought non-pecuniary damages for the inconvenience and distress caused by the non-compliance. The court was required to determine whether the plaintiff's action was valid and whether it had jurisdiction to award non-pecuniary damages in such a case.

The primary legal issues before the court were whether the plaintiff's action was validly brought under the relevant legislation and whether the court had the jurisdiction to award non-pecuniary damages. The court examined the statutory framework governing building remedy orders and the circumstances under which a party could seek further relief. It considered whether the plaintiff had complied with the procedural requirements and whether the action was within the time limits prescribed by the legislation. Additionally, the court assessed whether it had the discretion to award non-pecuniary damages for the distress and inconvenience caused by the non-compliance.

The court found that the plaintiff's action was valid and within the legislative framework, as the plaintiff had complied with the necessary procedural steps. It held that the court had jurisdiction to award non-pecuniary damages in such cases, recognising the significant impact of the non-compliance on the plaintiff. The court noted that while the statutory scheme primarily focused on pecuniary compensation, the discretion to award non-pecuniary damages was not precluded. It concluded that the distress and inconvenience experienced by the plaintiff warranted such an award. Consequently, the court ordered Araci Constructions to pay the plaintiff a sum for non-pecuniary damages.

Orders