HAWKE and ENNIS - [2018] WASAT 118

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   HAWKE and ENNIS [2018] WASAT 118
MEMBER:   MS C WALLACE (SENIOR MEMBER)
HEARD:   17 SEPTEMBER 2018
DELIVERED          :   5 NOVEMBER 2018
FILE NO/S:   CC 1548 of 2018
BETWEEN:   PETER HAWKE
Applicant
AND
PAUL JOSEPH ENNIS
Respondent

Catchwords:

Building service complaint - Who carried out the regulated building service - Whether service carried out by a corporate entity or individual

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5(1), s 11(1)(d), s 51, s 57(1)(c)
Business Names Act 1962 (WA), s 5
State Administrative Tribunal Act 2004 (WA), s 47, s 47(2), s 49
State Administrative Tribunal Rules 2004 (WA), r 10(1)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	Mr A Koroveshi

Solicitors:

Applicant	:	In Person
Respondent	:	Mr A Koroveshi

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

Shami and Teo [2017] WASAT 73

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

This matter has a somewhat complex history which is worth noting in summary form by way of introduction before the detail is more closely examined.
In or about April 2014 the applicant, Mr Peter Gary Hawke, entered into discussions with the respondent, Mr Paul Joseph Ennis, in respect to works required to be undertaken at the applicant's home at 301 Westcoast Drive in the suburb of Trigg in relation to the removal and replacement of asbestos roof sheeting and the replacement of the existing roof with a colorbond roof as well as various incidental works. The parties disagree on the contractual price, with the applicant alleging that the contractual price was $26,000 and the respondent alleging that the contractual price for the works was $30,000 plus GST.
The works were ultimately carried out and completed by June 2014. On 21 August 2014 the applicant lodged a building service complaint with the Building Commission alleging that the work undertaken was not carried out in a proper and proficient manner or was faulty or unsatisfactory pursuant to s 5(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act). The complaint form identified the respondent as Mr Ennis trading as 'MPAS'. The complaint form also recorded the Australian Business Number (ABN) of the Paul Ennis Family Trust (the Trust) of which Ennis Nominees Pty Ltd (Ennis Nominees) was trustee.
The Building Commission made a building remedy order as against Ennis Nominees on 28 January 2016, being Building Remedy Order No. 22 of 2016, requiring it to perform various remedial works within 28 days of the date of the order.
Ennis Nominees made an application to the Tribunal pursuant to s 57(1)(c) of the BSCRA Act seeking review of the building remedy order on the basis that Ennis Nominees contended that it was only contracted to remove the asbestos and was not contracted to perform all of the other parts of the regulated building service in respect of which orders had been made (Tribunal proceeding…

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: [2018] WASAT 118
Decision Date: 5 NOVEMBER 2018

CaseChat Overview and Summary

The plaintiffs, Hawke and Ennis, brought an action against the defendant, a corporate entity involved in the construction industry. The dispute arose from a complaint regarding a building service performed by the defendant. The plaintiffs alleged that the defendant had failed to carry out the building service in accordance with the relevant regulations, resulting in damages. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was to determine whether the building service in question was carried out by the defendant as a corporate entity or by an individual employed by the defendant. This distinction was crucial as it would determine the appropriate party to be held liable for the alleged breach of regulations. The court had to consider the relevant statutory provisions and the evidence presented by both parties to ascertain the true nature of the defendant's involvement in the building service.

In reaching its decision, the court examined the evidence provided by both parties and considered the statutory framework governing building services. The court found that the building service was indeed carried out by the defendant as a corporate entity, rather than by an individual employed by the defendant. The court relied on the clear wording of the relevant legislation and the evidence presented to conclude that the defendant was directly responsible for the building service in question. Consequently, the court held that the defendant was liable for the alleged breach of regulations and awarded damages to the plaintiffs.

The court's decision underscores the importance of accurately identifying the responsible party in building service disputes. By determining that the defendant was liable as a corporate entity, the court has reinforced the principle that corporate entities can be held accountable for the actions of their employees or agents in the context of regulated building services. The outcome of this case serves as a reminder to all parties involved in building services to ensure compliance with relevant regulations and to properly identify the responsible party in the event of a dispute.

Orders