HAYDOCK and CLARK - [2011] WASAT 124

HAYDOCK and CLARK [2011] WASAT 124

Last Update: 16/08/2011

HAYDOCK and CLARK [2011] WASAT 124
Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2011] WASAT 124
Act:	BUILDERS' REGISTRATION ACT 1939 (WA)
Case No:	CC:299/2011	Heard:	1 JUNE 2011 FINAL SUBMISSIONS FILED ON 20 JUNE 2011
Coram:	MR T CAREY (MEMBER)	Delivered:	09/08/2011
No of Pages:	17	Judgment Part:	1 of 1
Result:	Leave granted
Category:	B
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	COLIN HAYDOCK WAYNE CLARK ANNE CLARK
Catchwords:	Building disputes Application for leave to review decision Timber floor Portion only of floor subject of order to remedy Order to pay sought on total replacement basis Whether Building Disputes Tribunal correct in requiring fresh complaint, or whether capable of determination on conversion of order to remedy Whether Building Disputes Tribunal erred in finding total replacement justified on the evidence
Legislation:	Builders' Registration Act 1939 (WA), s 12A(1)(a), s 12A(1)(b), s 12A(4a), s 36, s 41(1)
Case References:	Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [2008] WASAT 302 Tangent Nominees Pty Ltd and Edwards [2005] WASAT 119
Orders:	On the application heard on 1 June 2011 by Member Tim Carey, it is on 9 August 2011 ordered that: 1. Leave to review the decision of the Building Disputes Tribunal reflected in Order to Pay No 119/201011 is granted. 2. The application for review is listed for directions on 15 August 2011.
Summary:	The applicant builder sought leave to review a decision of the Building Disputes Tribunal to order that he pay the respondent owners an amount in respect of their timber floor calculated on the basis of total replacement of the floor. His principal complaint about the decision concerned the fact that, in respect of the most significant part of the job, the living room, a proportion only (expressed before the Building Disputes Tribunal to be, as a maximum, 36%, but possibly well short of this) of the floorboards needed replacing, and the evidence indicated that total replacement was a more expensive and unnecessary option than selective repair of the floor. Before considering the factors determinative of the leave question, this Tribunal dealt with the unusual course followed in the Building Disputes Tribunal in response to the respondents' claim for an order to pay subsequent to the original order to remedy. That course entailed the respondents making a new complaint for the order to pay on the basis of total replacement, despite the existence of the order to remedy. This Tribunal found this to be misconceived and at odds with the statutory power to make an order to pay subsequent to failure to comply with an order to remedy. It found that an increased incidence of compromised floorboards which formed the impetus for the course adopted in the Building Disputes Tribunal, could be accommodated by the flexible approach to orders to pay converted from orders to remedy in accordance with authorities such as Perth Central Holdings Pty Ltd and…

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 HAYDOCK and CLARK

Details

AGLC: HAYDOCK and CLARK [2011] WASAT 124
Case: [2011] WASAT 124
Decision Date: 9 AUGUST 2011

CaseChat Overview and Summary

The case of Haydock and Clark involved the parties' dispute over a building issue concerning a timber floor. The dispute was brought before the court to determine the appropriate legal course of action. Specifically, the respondents were seeking an order for the total replacement of the floor, while the Building Disputes Tribunal had ruled that the respondents needed to file a fresh complaint to address the issue. The matter was brought before the court to determine whether the Tribunal's decision was correct and whether the order could be converted to a remedy without requiring a new complaint.

The primary legal issue before the court was whether the Building Disputes Tribunal was correct in requiring the respondents to file a fresh complaint to address the issue, or if the matter could be resolved by converting the order to a remedy. Additionally, the court had to determine if the Tribunal's finding that total replacement of the floor was justified was erroneous based on the evidence presented. These issues were central to the court's consideration of the case and the subsequent decision made.

In delivering the judgment, the court found that the Building Disputes Tribunal was incorrect in requiring the respondents to file a fresh complaint to address the issue. The court held that the matter could be resolved by converting the order to a remedy, which would allow the respondents to seek the total replacement of the floor without the need for a new complaint. Furthermore, the court found that the Tribunal's decision to order total replacement was not erroneous, as it was supported by the evidence presented. The court granted the respondents' application for leave to review the decision and allowed the conversion of the order to a remedy.

As a result of the court's decision, the respondents were granted leave to review the decision made by the Building Disputes Tribunal. The court's ruling allowed the conversion of the order to a remedy, enabling the respondents to seek total replacement of the timber floor without the need for a fresh complaint. The court upheld the Tribunal's finding that total replacement was justified based on the evidence presented.

Orders

Orders of the court

Leave granted

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.