| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : BUILDERS' REGISTRATION ACT 1939 (WA) CITATION : HAYDOCK and CLARK [2011] WASAT 124 MEMBER : MR T CAREY (MEMBER) HEARD : 1 JUNE 2011 FINAL SUBMISSIONS FILED ON 20 JUNE 2011
DELIVERED : 9 AUGUST 2011 FILE NO/S : CC 299 of 2011 BETWEEN : COLIN HAYDOCK Applicant
AND
WAYNE CLARK
ANNE CLARK
Respondents
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
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Legislation: Builders' Registration Act 1939 (WA), s 12A(1)(a), s 12A(1)(b), s 12A(4a), s 36, s 41(1) Result: Leave granted Category: B
Representation: Counsel:
Applicant : Self-represented
Respondents : Self-represented
Solicitors:
Applicant : Self-represented
Respondents : Self-represented
Case(s) referred to in decision(s):
Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [2008] WASAT 302
Tangent Nominees Pty Ltd and Edwards [2005] WASAT 119
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 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. 2 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 Doric Constructions Pty Ltd[2008] WASAT 302. 3 Regarding the merits of the decision, this Tribunal was critical of findings of the Building Disputes Tribunal concerning the availability and location of timber floor tradesmen with the requisite skill to perform selective repairs, and its conclusion that such repairs to the respondents' floor were not possible at a cost below that of total replacement of the floor, given the state of the evidence before it, including the absence of any evidence of practising tradesmen who may have the expertise required for the selective repair work. 4 The Tribunal granted leave based on the problems identified with the merits of the decision and the course adopted by the Building Disputes Tribunal in considering and determining the respondents' claim for an order to pay. (Page 4)
Introduction 5 This is an application under s 41(1) of the Builders Registration Act 1939 (WA) (BR Act) for leave to review a decision of the Building Disputes Tribunal (BDT) made on 25 February 2011, reflected in Order to Pay No 119/201011 (Order to Pay), in terms relevantly: 1. That Colin Haydock paid to Wayne Clark and Anne Clark the sum of $19,763 within 28 days, calculated as follows: | (a) | Attempted repair to floor | $Nil | | (b) | Replacement floor | $16,804 | | (c) | Dr Zurhaar's costs: $2,420 Attendance at hearing: $378 | $2,798 | | (d) | Skip bin hire | $161 | | $19,763 | 6 The Order to Pay resulted from the alleged failure of the builder, Colin Haydock (Mr Haydock), to comply with the terms of an order to remedy (Order to Remedy) made on 30 April 2010 against him, and in favour of Wayne Clark and Anne Clark (the Clarks). The Order to Remedy was in terms relevantly: That Colin Haydock rectify the faulty building work at 85 Horsford Road, Burnside as identified in the Builders' Registration Board notice of assessment dated 12 January 2010 within 60 days of the date of this Order. 7 Relevantly for current purposes, the faulty work identified in the inspector's report concerned the Clarks' complaints: 'Kitchen warped and split floor boards' and 'Living room floor boards with unsightly expansion cuts'. The complaints were made in relation to the Clarks' holiday residence at Burnside in the Margaret River area of Western Australia. It is apparent that the initial cause of the problems experienced in the two areas was excessive moisture leading to buckling of the floor at various points. According to the inspector's report, steps were taken by Mr Haydock to rectify the floor in both areas in 2007, not long after the floor was installed, involving replacement of some boards, and, in the living room, the insertion in some boards of expansion cuts. (Page 5)
However, by reason of further buckling in the kitchen, the inspector assessed the floor boards there as unsatisfactory. In relation to the living room, according to the inspector, the manner in which the expansion cuts were cut constituted poor workmanship. In addition, the inspector cited four instances of a board or part of a board having buckled above the remaining surface, which he also described as unsatisfactory. 8 There is no issue in the current application concerning the legitimacy of an order to pay. Although Mr Haydock made some attempt to justify the delay in complying with the order to remedy, he did not contend before the BDT that there should be no order to pay in the circumstances. Rather, he raised various arguments as to why the Clarks were not entitled to be reimbursed the cost of the total replacement of the living room floor, although he accepted before the BDT that total replacement of the kitchen floor was necessary. By the time of the BDT's consideration giving rise to the Order to Pay, the Clarks had arranged for another contractor, Eco Wood Floors, to effect repairs, based on the total replacement of the floorboards in both the kitchen and living areas, at a cost of $16,804. 9 The BDT's decision reflected in the Order to Pay is founded on the conclusion in respect of the living room area that the Clarks were entitled to be reimbursed on the basis of total replacement, rather than the replacement of individual floorboards as contended by Mr Haydock. Mr Haydock, in seeking leave to review the decision, contends that this conclusion is unsupported by the evidence before the BDT and is otherwise flawed.
Leave to review applicable principles 10 The principles governing the grant of leave to review decisions of the BDT are set out conveniently by Senior Member Raymond in Tangent Nominees Pty Ltd and Edwards [2005] WASAT 119 at [35] [44]. The principles are summarised below: • It must be shown that the decision in respect of which leave is sought is wrong or attended with sufficient doubt to justify the grant of leave. • In addition, something further must be demonstrated. Substantial injustice resulting from leaving the decision unreversed is a common further requirement, although it is no more than a guideline for the exercise of a broad discretion to grant or withhold leave. (Page 6)
• The additional factor element may in some cases be satisfied if it is shown that a significant question of law is to be considered. • This Tribunal should be slow to grant leave except in cases where clearly there is no discernible basis for the decision of the BDT, or other cases of apparent error, for example, where rules of procedural fairness have been breached. • The grant of leave will be limited to such grounds as this Tribunal determines. 11 Before applying these principles to the current matter, I need to deal with some unusual aspects of the manner in which the Clarks' claim for an order to pay was received and dealt with in the BDT.
Procedure employed in the BDT dealing with order to pay claim on total replacement basis 12 It appears that when the Clarks expressed their desire to pursue the conversion of the Order to Remedy to an order to pay calculated by reference to the total replacement cost, the Clarks were advised by the Deputy Chairman of the BDT, as it was constituted for the hearing, that it would be necessary for them to file a new complaint. I will refer to the rationale for that advice shortly. The Clarks consequently filed a new complaint, referring to the need for the floor to be replaced by reason of workmanship faults to be identified in a report by the Clarks' expert, Dr Zurhaar, on 30 September 2010. 13 Somewhat curiously, the BDT's reasons for decision bear three complaint numbers, being the complaint giving rise to the Order to Remedy, the new complaint lodged on 30 September 2010, and a document of Mr Haydock in the form of a 'complaint' which is more accurately described as a written submission in opposition to the claim and contentions of the Clarks. All that the BDT's reasons for decision have to say about the process leading to the decision reflected in the Order to Pay is that '[f]or various reasons the Builder did not effect repairs [in accordance with the Order to Remedy] and so the matter was brought on before the Tribunal for an Order to Pay'. 14 It seems clear from the transcript of the BDT hearing, particularly at T:29T:33, 24.02.11, that the reason the Clarks were advised to commence a new complaint was that the BDT took the view that the (Page 7)
Order to Remedy was limited in its scope to selective repair rather than total replacement. The Clarks could therefore not achieve an order to pay based on total replacement on conversion from the Order to Remedy. Some justification for such a limitation on the Order to Remedy is to be found in that order's incorporation of faulty building work as identified in the inspector's report, which, as I have said, comprised, in the living room, those floorboards containing expansion cuts and four other floorboards. This left a significant majority of the floor uncriticised. However, by the time the Clarks sought their order to pay, many more boards in the same area were claimed, and accepted by Mr Haydock, to be compromised. Further, by reason of the arguments that the extent of the compromised boards rendered selective repair of the floor unviable, the Clarks claimed total replacement was the only option available. 15 Although I understand the reason for the concern of the BDT given the developments in the Clarks' grievances regarding the floor, the advice of the Deputy Chairman to the Clarks, assuming it was as described above, was, with respect, misconceived. The Clarks' original complaint concerning the buckling of boards in their kitchen and living areas was dealt with by the BDT resulting in the Order to Remedy. It is not possible to hear and determine a new complaint based upon an enlargement of the number of compromised boards as if the Order to Remedy did not exist. 16 If the Order to Remedy were not complied with, as the Clarks contended, their rights, and the BDT's power, resided in s 12A(4a) of the BR Act. This is the provision for what in common parlance is referred to as the 'conversion of the order to remedy to an order to pay', but actually comprises the twofold process of revoking the order to remedy and making an order to pay. It appears that the BDT in this case acted in a way which barely resembles that process. It permitted, and indeed, on the Clarks' story, encouraged, a second complaint covering the same essential cause as the first complaint, and made a decision seemingly consistent with the second complaint, the effect of which was to countermand the Order to Remedy, without expressly revoking it, as it presumably would have had it invoked s 12A(4a) of the BR Act. 17 How then should the enlargement of the floorboards causing concern have been accommodated? The answer lies in the correct interpretation of the following words of limitation pertaining to orders to pay under s 12A(1)(b) of the BR Act: … such costs of remedying the building work that is faulty or unsatisfactory as the Disputes Tribunal considers reasonable. (Page 8)
18 This expression has been the subject of discussion in a number of matters, both in this Tribunal, and, when the District Court was vested with the relevant jurisdiction, in that Court. A convenient summary of the position appears in a decision of a full panel of this Tribunal, presided by Senior Member Raymond, in Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [2008] WASAT 302 (Perth Central Holdings) at [19] [24], which I reproduce: It is first convenient to deal with the issue of the proper approach to the making of an order under s 12A(1)(b) (order to pay). Some indication of the nature of that task given to the BDT (and, upon review, this Tribunal see BR Act s 41(5) and the State Administrative Tribunal Act 2004 (WA) (SAT Act), s 29(1)) may be found in these remarks of LA Jackson DCJ in Craig Carle Homes Pty Ltd v Rushton [2001] WADC 173, at [8]: In par (b) the [BDT] is empowered to order payment of such costs as the [BDT] 'considers reasonable'. In my view that expression gives to the [BDT] a discretion wider than merely to order payment of an amount to rectify unsatisfactory work. It does not, in my view, require the [BDT] to closely examine to minute detail the cost of rectification. It is sufficient for the [BDT] to use what might be termed a 'broad brush' approach. To require it to be more precise would, in my opinion, be likely to stultify the nature of the jurisdiction intended to be exercised by the [BDT]. The [BDT] should act in a common sense way and to make a reasonable assessment of the cost of remedying unsatisfactory work. The 'nature of the jurisdiction' alluded to by His Honour has, amongst other things, a strong flavour of the summary and practical, but fair, settlement of building disputes. Accordingly, the tests for leave to review a BDT decision, as formulated by both the District Court and this Tribunal, reflect that position: see Content Living Pty Ltd v McIntosh [2005] WADC 173 at [13] and [14]; Watson v Wallington [1999] WADC 84 at [25]; Tangent Nominees Pty Ltd v Edwards [2005] WASAT 119. And, as Hasluck J said of the Home Building Contracts Act 1991 (WA),expressly noting that that Act's scheme permitted access to the BDT: 'The decided cases suggest that remedial legislation of this kind should not be construed narrowly': Lilley v LindsaySmith [2001] WASCA 168 at [32]. Importantly, we are concerned with the statutory task of ascertaining what is a reasonable sum for the 'remedying' of certain work. Ordinarily, 'remedying' means, as The Macquarie Dictionary (4th Ed, 2005, Macquarie, Sydney) suggests, 'to put right, or restore to [its] … proper condition'. Parliament has not seen fit to constrain the Tribunal solely to a matrix of contractual damages principles … (Page 9)
Rather, all of the factors outlined earlier about the nature of the BDT's and therefore our statutory jurisdiction, suggest that in the context of the evident purposes of the BR Act, the respondent's objections in this case will not carry the day if what the applicant owner is proposing now by way of a sum representing remediation can fairly be said to be 'reasonable'. And, in this context what is reasonable might be informed by, but is certainly not limited to, contractual damages principles of reasonableness. Thus, a cautious approach to alleged 'betterment' by a plaintiff at common law might be relevant as regards what is an appropriate response and a reasonable sum, but it does not form a separate limiting jurisprudence in this jurisdiction. Likewise, while the common law might not embrace any rectification which appears to impose additional work upon the builder (because, for example, it might be suggested that construction and design defects are both being repaired), such an approach is not necessarily applicable where, as here, the Tribunal is required to take a 'broad brush' approach when making an order to pay. 19 On the facts of Perth Central Holdings, the applicant owner was allowed the full cost of repairs to a roof up to a waterproof state as was originally contemplated, although that cost had increased by reason of the lapse of time since the respondent builder's failure to comply with his contractual waterproofing obligations. This was despite the fact that, had those contractual obligations been fulfilled, a different course would have been adopted involving additional cost to the applicant. 20 The flexibility of approach to orders to pay for which cases such as Perth Central Holdings stand as authority should, in my opinion, have allowed the BDT to deal with the Clarks' claim for such an order, based on total replacement of the living room floor, on an application under s 12A(4a) of the BR Act for conversion of the Order to Remedy to an order to pay. 21 The consequences of the failure of the BDT to tailor its decisionmaking process to the requirements of the exercise of the applicable statutory power are potentially serious. I will postpone consideration of that question until I have determined the controversy regarding the substantive merits of the BDT's decision, being the first of the requirements for consideration in deciding whether leave should be granted.
Reasoning of the BDT 22 The BDT, in its reasons for decision published on 17 March 2011, identified, as the 'basic dispute' before it, whether part of the living room (Page 10)
floor only needed to be replaced, or whether this was impractical, given the area affected. 23 On that issue, the BDT noted (at [2.1] of its reasons for decision) that the Clarks relied upon the expertise of Dr Armand Zurhaar, who holds a Bachelor of Applied Science and has been involved in the building industry for over 20 years, including exposure to issues concerning timber floors. 24 The BDT summarised a report prepared by Dr Zurhaar, prior to the Clarks deciding to engage Eco Wood Floors to totally replace both areas, in the following terms: • The kitchen needed complete replacement, and generally 36% of the boards needed replacing. • How many of each side of damaged boards would also need replacing was difficult to estimate. • Once the number of boards exceeds 20% of the floor, a decision to replace the whole floor is justifiable on the basis of economics. • One issue with replacing specific boards was a variation in their width between 85 millimetres and 86 millimetres. • The area for repair was a sizeable part of the floor. • The house is out of Perth in the south-west of Western Australia. • 'It was unreasonable to expect the owners to pay for the 1% of builders who might be skilled enough to undertake repairs'. 25 Further, the BDT made reference to Dr Zurhaar's comment in crossexamination that repairs could be done at great expense and with uncertainty as to what the final job would look like. 26 The BDT also summarised Mr Haydock's evidence, and also the evidence of Mr Haydock's expert witness, Mr Paul Kiely, a carpenter by trade, whom the BDT referred to erroneously as an employee of the Australian Timber Flooring Association (ATFA), but who introduced his oral evidence in the BDT by advising his positions as President, Director and accredited inspector of ATFA. (Page 11)
27 The BDT recounted Mr Haydock's evidence to the effect that rectification of the original unsatisfactory work was possible by total replacement of the floorboards in the kitchen and by replacement of 27% of the remaining living area. Including timber cost, sand and seal, the total cost should have been $6,721. 28 The BDT summarised conclusions in a report prepared by Mr Kiely for the purposes of the BDT hearing as follows: • With the exception of the damaged areas, the integrity of the floor had not suffered and damaged boards could be replaced. • The witness was not aware of any rule concerning areas in excess of 20% requiring complete replacement. • A cost of between $5,000 and $6,000 was reasonable for the 27% of the area requiring replacement. • Replacement of the whole area had to be the last option. • ATFA advised caution over repairing another person's work, but in the end it was a commercial decision. 29 At [3.1] of the BDT's reasons for decision, under the heading 'Conclusions', the BDT explained its ultimate conclusion that the Clarks were justified in having the total floor (kitchen and living area) replaced, by reference to the following matters: a) While one can question the 20% figure suggested by Dr Zurhaar, the fact that the affected area was between 27% and 36% of the total area clearly put it in the category for consideration for total replacement. b) Most tradesmen will not repair a fairly extensive area because of the fact of not knowing how it will turn out. c) It was cheaper for the Clarks to get quotations locally to relay the whole floor, than to have a top tradesman from Perth do repairs who would wish to cover himself against any unforeseen contingencies. d) It is virtually impossible to say in an area of this size that a top tradesman replacing at least a third of the floor using considerable care and skill would be less expensive. (Page 12)
Review grounds 30 According to the application document, review was sought by Mr Haydock having regard to the following matters: a) That the finding of liability on the basis of full replacement cost for the floor ignores the fact that the replacement product (new timber) was different from the requirement of the original contract, and that a more costly sealant was used. b) That the order to pay reflected total replacement of the floor, when only between 28% and 37% of the total floorboards were damaged. c) The finding that complete replacement was necessary stood contrary to expert evidence that this was unnecessary. 31 The preponderance of argument, both before the BDT and this Tribunal, concerned the issue of repair versus total replacement, and I will restrict myself in these reasons to that broad issue. The different issue referred to as (a) above was in any event effectively abandoned before the BDT.
Did the BDT arguably commit an error on the merits? 32 In the course of the hearing on 1 June 2011, the parties were invited to comment directly upon each of the integers of the BDT's conclusions appearing at [3.1], which I indentified earlier as conclusions (a) (f). The invitation was extended in light of my own concerns as to the evidentiary basis of at least some of those conclusions. Although some of my concerns mirrored contentions appearing in the applicant's written outline of submissions, they also transgressed into new areas. To the extent that this occurred, the parties were able to, and did, address them in written submissions filed subsequent to the hearing. Of the six conclusions, (Page 13)
acceptance by both parties is evident only in respect of the sixth, identified as (f). 33 I will now consider each of the potentially problematic conclusions in turn.
• On the assumption of an affected area of between 27% and 36%, the living room floor was in the category for consideration for total replacement 34 At the hearing, Mr Haydock appeared intent on expending considerable energy in persuading me that this conclusion was flawed. He did this by reference to such matters as the apparent agreement by the respective experts for both parties at a site inspection of the floor that selective repair rather than total replacement was a possible solution, and the existence of factors tending to suggest that the experts' estimates of the percentage of boards needing replacing were exaggerated. 35 As I pointed out at the hearing, the conclusion goes no further than that the incidence of compromised boards put the whole floor in the category for consideration for total replacement. So confined, there is, in my view, nothing objectionable about it. It is true that part of Dr Zurhaar's reasoning included a criterion, which the witness indicated had been accepted in the District Court, that once it is accepted that more than 20% of boards require replacement, total replacement of the floor becomes an (or perhaps the) economically viable option. The BDT paid scant attention to any such rule of thumb, and certainly did not base its decision upon it. It suffices for present purposes to say that the conclusion presently being considered could not support a grant of leave in light of its limited nature.
• Most tradesmen would not repair a fairly extensive area due to the uncertainty of outcome 36 This conclusion is focussed upon the fact asserted by Dr Zurhaar that selective repair of a job performed by someone else brings its own peculiar set of problems: the additional skill sets and time required in comparison with laying a wholly new floor; the doubt that the repaired areas will be 'invisible' from the original; and the possibility that the repairer will assume responsibility for the performance not only of the repaired areas but the whole floor. 37 Mr Haydock challenged this conclusion as being based on the evidence of Dr Zurhaar which was not within his expertise to give. I do (Page 14)
not agree. Dr Zurhaar has had extensive experience in dealing with flooring issues, particularly on a technical level, which would have exposed him to the practical factors impacting upon the decisionmaking of individual tradesman. 38 In any event, in my view, the generality of the conclusion is such that it is no more influential in the making of the BDT's ultimate decision than the previous conclusion. It is the three more specific conclusions which I am about to consider, which resulted far more directly in the BDT concluding that the Clarks were justified in having the total floor replaced, which require greater scrutiny. 39 On my reading of them, the three conclusions to which I have just referred worked as a series of interlocking propositions to form the real substantial basis of the ultimate decision. I will therefore list and deal with a number of difficulties I have with them together.
• It was cheaper for the owners to get quotations locally to relay the whole floor, than the alternative of engaging a top tradesman from Perth to do selective repairs, given the difficulties involved
• It was virtually impossible to conclude, given the area involved, that a top tradesman replacing at least a third of the floor would be less expensive
• The cost put forward for a top tradesman of between $5,000 and $6,000 ignored the area concerned and need for at least two to three trips from Perth 40 The first and foremost difficulty is that the evidence before the BDT did not support the central twofold premise accepted by it that tradesmen with the skill required to perform the selective repair work could only be found in Perth and that the cost of engaging such a tradesman would be greater than the cost of a local tradesman to totally replace the floor. 41 Neither of the parties' experts, both of whom gave evidence on the availability of tradesmen of the requisite ability, gave evidence which limited the location of a suitably skilled tradesman to Perth. The closest that Dr Zurhaar went was to say (T:8, 24.02.11): … you're talking about 1% of the industry that's capable of doing that to that standard, and I think that's a bit unfair to say, 'Well, if you can find someone good enough, capable enough and prepared to do this down in Margaret River on a floor that's already got a problem attached to it', I think what you're expecting the owners to be able to find is not reasonable. (Page 15)
42 Mr Kiely cross-examined Dr Zurhaar about the issue at T:22 (line 44) to T:23 (line 48), 24.02.11. In that passage, Dr Zurhaar: · acknowledged that ATFA's accreditation system for floor timber operatives is rigorous; · did not dispute Mr Kiely's assessment that the skill level required for the selective repair task would be attained by those with an ATFA accreditation of four and above; · did not dispute Mr Kiely's estimate that out of some 600 ATFA members in Western Australia, at least 80 are accredited four and above; · said that he was not briefed to ascertain the availability of any such operator for the Clarks' job but that had he been, he would probably have been on the phone to Mr Kiely; and · admitted that he would defer to Mr Kiely 'in terms of knowing the state of the industry and those within the industry capable of doing it'. 43 It is clear that, prior to carrying the decision to totally replace the living room floor into effect, no contact was made with Mr Kiely, the person whom Dr Zurhaar would have contacted for the purpose, nor anyone else at ATFA, the representative body, to explore the possibility of, for example, someone local being available who, at a competitive cost, was capable of achieving a good outcome by selective repair. There was also no empirical evidence before the BDT to support Dr Zurhaar's assertion that the possibility of such a person being available within easy reach of Margaret River was extremely low, an assertion which was seriously undermined by Dr Zurhaar's concessions noted above. In these circumstances, the BDT's acceptance of the assertion, in the absence of any explanation for doing so, is difficult to fathom. 44 The second difficulty I have concerns the BDT's statement that it was virtually impossible to conclude that a top tradesman replacing at least a third of the floor would be somehow less expensive. It was for the Clarks to satisfy the BDT that facts existed tending to show that the selective repair of the faulty work was impossible or uneconomic. It was not for Mr Haydock to demonstrate that the reverse applied, which is the unstated premise underlying what the BDT said. (Page 16)
45 My final concern is that, discounting Mr Haydock's evidence on the basis of its partiality, there was, in fact, no evidence at all from a tradesman currently operating in the field who may arguably have had the expertise required for the selective repair upon which the BDT could properly draw any conclusion about relativity of the costings of the alternatives of selective repair and total replacement. Given the broad capacity of the BDT to inform itself on any matter in such manner as it thinks fit (see s 36 of the BR Act), and given that the applicants before it had failed to provide proper evidence on the costing issue, it could have invited the parties to produce the necessary evidence. It was certainly in no position to decide that issue in the Clarks' favour, as it did.
Conclusions 46 By reason of the problems I have identified with key elements leading to the BDT's decision on the merits, the first requirement for a grant of leave for review of the decision is satisfied. 47 What then is the effect of the findings made earlier regarding the BDT's failure to act in accordance with its powers under s 12A(4a) of the BR Act? The answer depends upon whether it can be said that the BDT completed (albeit erroneously) its adjudication of the Clarks' original complaint, or whether that still needs to occur. 48 In my view, it is not possible to ignore the course which the proceeding in the BDT followed. That course involved the Clarks' initial complaint filed on 2 September 2009, the Order to Remedy made on 3 May 2010, the Clarks' second complaint dated 30 September 2010 (after receiving the advice of the BDT that a second complaint was required) and the Order to Pay made on 25 February 2011, citing, amongst one other, both the Clarks' complaint numbers. 49 I have identified the respects in which the requirements of s 12A(4a) of the BR Act were not met in the decision reflected in the Order to Pay. Indeed, the BDT went to some length to ensure that they were not, by advising the Clarks that the 'new complaint' seeking an order to pay without reference to the original complaint was necessary. 50 I have concluded that the BDT's decision reflected in the Order to Pay resulted from a miscarriage of its powers, and is therefore a legal nullity. The BDT should be required, in order to uphold the integrity of the decisionmaking process, to complete its task, by determining the matter (being the Clarks' claim to convert the Order to Remedy to an order to pay), as part of the original complaint, in accordance with s 12A(4a) of (Page 17)
the BR Act. This is the additional factor in this case which justifies the grant of leave in Mr Haydock's favour. 51 Although the matter currently before me is limited to the issue of leave, and subject to any submissions to the contrary by the parties, it appears inevitable that, on review, the decision will be set aside and the matter sent back to the BDT for reconsideration. Assuming that occurs, the BDT may wish to have regard to the documents which have been before it previously, the oral evidence of the parties and their witnesses in transcript form, and such evidence in relation to the costing issue as the parties place before it.
Order |