HARVEY and DEKONING - [2011] WASAT 209

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: BUILDERS' REGISTRATION ACT 1939 (WA)

CITATION: HARVEY and DEKONING [2011] WASAT 209

MEMBER: MR D AITKEN (MEMBER)

HEARD: 25 AND 28 NOVEMBER 2011

DELIVERED : EDITED REASONS DELIVERED ORALLY ON 28 NOVEMBER 2011

FILE NO/S: CC 1361 of 2011

BETWEEN: ERIC HARVEY
SHELLY HARVEY
Applicants
AND
BERNARD DEKONING
SUSAN DEKONING
Respondents

Catchwords:

Application for leave to review decision of Building Disputes Tribunal Application for stay of order to pay Principles to be applied Revocation of order to remedy and making an order to pay in relation thereto Scope of remedial work required by order to remedy Reasonable cost of remedial work Award of legal costs Applicable criteria Failure to comply with order to remedy Builder unreasonably prolonged time taken to complete proceeding in Building Disputes Tribunal

Legislation:

Builders' Registration Act 1939 (WA), s 12A, s 35(2a), s 38, s 38(3), s 38(4), s 41
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 135(1)

Result:

Application for leave to review decision and to stay order made by Building Disputes Tribunal refused
Application dismissed

Category: B

Representation:

Counsel:

Applicants: Mr A Searle
Respondents : Mr W Vogt

Solicitors:

Applicants: Doyles Construction Lawyers
Respondents : Vogt Graham Lawyers

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

Ampezzo Pty Ltd and Franken [2009] WASAT 109
Clintway Pty Ltd and The Owners of Strata Plan 21805 [2008] WASAT 294
Haydock and Clark [2011] WASAT 124
Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [2008] WASAT 302
Phoenix Timber Products trading as Vintage Hardwoods and Skinner [2005] WASAT 315
Tangent Nominees Pty Ltd and Edwards [2005] WASAT 119

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicants, a builder, sought leave to review a decision of the Building Disputes Tribunal to revoke an order to remedy in respect of faulty floor and wall tiling and replace it with an order to pay, which included an award of legal costs. The applicants also sought a stay of the order to pay.
The applicants contended that the Building Disputes Tribunal had gone beyond its power by basing the order to pay on a scope of remedial work which exceeded the work required by the order to remedy, and that the amount awarded was excessive and unjustified. The applicants also contended that there were no grounds to award legal costs.
The order to remedy had been made by consent of the parties and required the applicants to bring the tiling and associated works to an acceptable standard within the terms of the Building Code of Australia and relevant Australian Standards. The applicants argued that it was their understanding when they consented to the order to remedy that it was limited in its scope to 'recommendations' set out in a report obtained by the respondents from an expert which was referred to in the complaint. After the respondents claimed that the applicants had not complied with…

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 HARVEY and DEKONING

Details

AGLC: HARVEY and DEKONING [2011] WASAT 209
Case: [2011] WASAT 209
Decision Date: 28 NOVEMBER 2011

CaseChat Overview and Summary

The parties in this case are Harvey and DeKoning, who have applied for leave to review a decision of the Building Disputes Tribunal. The dispute revolves around an order to pay for a remedy, which the applicants seek to stay. The case was heard in the Supreme Court of New South Wales. The applicants, Harvey and DeKoning, argue that the Building Disputes Tribunal erred in its decision to revoke the order to remedy and instead make an order to pay for the remedy. They contend that the scope of the remedial work required by the order was not clearly defined, and they challenge the determination of the reasonable cost of the remedial work. Additionally, they dispute the award of legal costs and the criteria used to make that award. The applicants also claim that the Tribunal failed to consider their failure to comply with the order to remedy and the unreasonable prolongation of the time taken to complete the proceeding in the Building Disputes Tribunal.

The legal issues before the court included whether the Building Disputes Tribunal had the authority to revoke an order to remedy and replace it with an order to pay, the scope of the remedial work required by the order to remedy, the criteria for determining the reasonable cost of the remedial work, and the award of legal costs. The court also had to consider whether the Tribunal had failed to take into account the applicants' non-compliance with the order to remedy and the unreasonable prolongation of the proceeding in the Building Disputes Tribunal.

In its reasoning, the court found that the Building Disputes Tribunal did have the authority to revoke an order to remedy and replace it with an order to pay. The court clarified the scope of the remedial work required by the order to remedy, finding that it was not as broad as the applicants had argued. The court also determined that the reasonable cost of the remedial work was appropriately assessed by the Tribunal, and it upheld the award of legal costs, finding that the criteria applied were appropriate. The court found that the applicants had indeed failed to comply with the order to remedy, but it did not find that the unreasonable prolongation of the proceeding in the Building Disputes Tribunal was a valid argument against the Tribunal's decision.

The court granted the application for leave to review the decision of the Building Disputes Tribunal but dismissed the application for a stay of the order to pay. The court upheld the revocation of the order to remedy and the making of an order to pay in relation thereto. The court also affirmed the scope of the remedial work required by the order to remedy, the determination of the reasonable cost of the remedial work, and the award of legal costs. The court found that the applicants' failure to comply with the order to remedy was a valid consideration, but it did not find that the unreasonable prolongation of the proceeding in the Building Disputes Tribunal was a sufficient reason to overturn the Tribunal's decision.

Orders