HENRY and C&D SOLUTIONS (WA) PTY LTD
[2012] WASAT 8
•10 JANUARY 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)
CITATION: HENRY and C&D SOLUTIONS (WA) PTY LTD [2012] WASAT 8
MEMBER: MS NATASHA OWEN-CONWAY (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 10 JANUARY 2012
FILE NO/S: CC 1711 of 2011
BETWEEN: NEIL HENRY
Applicant
AND
C&D SOLUTIONS (WA) PTY LTD
Respondent
Catchwords:
Home building work contract Whether a contract to alter or improve a commercial building is a home building work contract Whether a complaint concerning a dispute between the parties to a contract to alter or improve a commercial building is capable of being the subject of a home building work contract complaint for the purposes of s 5(2) of the Building Service (Complaint Resolution and Administration Act 2011 (WA)
Legislation:
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5, s 5(1), s 5(2), s 7, s 9, s 10, s 11, s 11(1)(a), s 11(d), s 38, s 43, s 43(1), s 49
Home Building Contract Act 1991 (WA), s 3, s 17, s 20, Sch 1
State Administrative Tribunal Act 2004 (WA), s 47, s 47(1), s 47(2), s 57(1), s 57(2)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Ms L Teh
Solicitors:
Applicant: N/A
Respondent: Paul Fletcher & Co
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
On 27 October 2011, the authorised investigator appointed by the Building Commissioner of Western Australia made a decision to refer a complaint made by the applicant, Mr N Henry (on behalf of the Dwellingup Community Hotel Ltd), against the respondent, C&D Solutions (WA) Pty Ltd, to the State Administrative Tribunal pursuant to s 11(1)(d) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA).
The Tribunal has concluded that the dispute comprised in the complaint made to the Building Commissioner and referred to the Tribunal is not one in respect of which the Tribunal has jurisdiction to hear and determine. The complaint was misconceived and the matter was dismissed pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA).
The allegations contained in the complaint
On 20 July 2010, at the request of Mr Neil Henry (applicant), C&D Solutions (WA) Pty Ltd (respondent) wrote to the applicant noting that it had agreed to undertake the construction of a new toilet block at the rear of the commercial property known as the Dwellingup Community Hotel and some additional ancillary works thereto for the applicant. The price was agreed at $245,000 plus GST and the respondent requested a 15% deposit from the applicant. The deposit sought was paid on 20 July 2010 and a further sum of $66,000 was demanded by the respondent from the applicant on 14 September 2011 for 'Waste Treatment plant', as recorded in the respondent's tax invoice 33 of that date. The applicant alleges that the sum of $66,000 was paid to the respondent and that this sum was intended, and agreed with the respondent, to be the whole cost of the 'Biomax' waste treatment to be installed by the respondent to service the new toilet block to be constructed by the respondent.
In August 2010, the respondent demolished the existing toilet block in preparation for the construction of a new toilet block. The respondent provided and paid for temporary toilets until May 2011, and three round 'Biosystem' tanks were installed.
No further work was ever undertaken by the respondent, despite requests from the applicant to resume the incomplete contract works. The applicant terminated the contract with the respondent by letter dated 10 May 2011, following the respondent's failure to resume the work to complete the contract between the parties, as requested by the applicant.
The applicant engaged a new contractor to complete the construction of the new toilet block. After the commencement of the new contractor, the applicant received a request from the new contractor to pay an additional sum for the supply and installation of the 'Biomax' toilet system.
The applicant asserts that the respondent failed to pay for the supply of the 'Biomax' toilet system as represented in his tax invoice 33, notwithstanding payment of the sum of $66,000 to the respondent by the applicant for the supply and installation of the same. The applicant sought redress against the respondent by lodging the complaint against the respondent with the Building Commissioner of Western Australia (Building Commissioner).
The Building Commissioner
On 25 October 2011, the Building Commissioner's authorised officer expressly accepted the applicant's complaint pursuant to s 7 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BS(CRA) Act). The Building Commissioner's authorised officer also concluded that the matter concerned contractual issues and acknowledged that the contractual issues are 'seemingly outside the jurisdiction of the Commission'. The Building Commissioner's authorised officer referred the dispute to the Tribunal pursuant to s 11(d) of the BS(CRA) Act.
The law
Section 5 of the BS(CRA) Act provides:
(1)Subject to the regulations, a person may make a complaint to the Building Commissioner about a regulated building service not being carried out in a proper and proficient manner or being faulty or unsatisfactory.
(2)An owner or builder under a home building work contract may make a complaint to the Building Commissioner about a matter referred to in the Home Building Contracts Act 1991 section 17 or 20 or Schedule 1 clause 5.
…
Section 3 of the Home Building Contracts Act 1991 (WA) (HBC Act) defines a home building work contract (HBWC) to mean, relevantly:
… a contract between a builder and an owner for the performance by the builder of home building work …
Section 3 of the HBC Act defines 'home building work' and limits the work to that for the construction or reconstruction of, the alteration, improvement to and the construction or carrying out of defined associated work to a 'dwelling', including a strata titled 'dwelling'.
Section 3 of the HBC Act defines 'dwelling' to mean:
… a building occupied or intended for occupation solely or mainly as a place of residence … (emphasis added).
A complaint that may be made to the Building Commissioner pursuant to s 5(2) of the BS(CRA) Act is one falling within s 17, s 20 and Sch 1 of the HBC Act concerning a HBWC and is defined in s 3 of the BS(CRA) Act as a 'HBWC complaint'.
Section 7 of the BS(CRA) Act provides:
(1)After receiving a complaint under section 5 the Building Commissioner must decide whether, and to what extent
(a)to accept it; or
(b)to refuse to accept it.
(2)The Building Commissioner may make such inquiries as are appropriate to enable the making of a decision under this section.
(3)The Building Commissioner may refuse to accept a complaint under subsection (1) if
(a)the complaint is not made in accordance with this Act; or
…
(d)in the opinion of the Building Commissioner, the complaint is vexatious, misconceived, frivolous or without substance; …
The decision to accept a complaint by the Building Commissioner is not a decision that is capable of review by the Tribunal pursuant to s 57(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) or with the leave of the Tribunal pursuant to s 57(2) of the Act. The Tribunal has jurisdiction to grant leave to hear, and hear an application for review, a decision of the Building Commissioner who has 'refused to accept' a complaint but does not have any jurisdiction to undertake a review of a decision by the Building Commissioner to accept a complaint.
Following acceptance of a building service complaint or a HBWC complaint, the Building Commissioner must cause an investigation of the complaint to be carried out by one or more authorised persons: see s 9 of the BS(CRA) Act. The authorised officer must thereafter prepare a report: see s 10 of the BS(CRA) Act.
Section 11 of the BS(CRA) Act provides:
(1)The Building Commissioner must consider any report given to the Building Commissioner under section 10 and may, subject to the other provisions of this section
(a)dismiss the complaint; or
(b)commence a conciliation proceeding under Division 3; or
(c)deal with the complaint under section 37 or 42, as the case requires; or
(d)refer the complaint to the State Administrative Tribunal for it to deal with under section 38 or 43, as the case requires.
…
The Tribunal is vested with jurisdiction to 'deal with' a complaint referred to it 'under section 38 or 43'. Section 43(1) of the BS(CRA) Act provides that:
If the Building Commissioner refers a HBWC complaint to the State Administrative Tribunal, the Tribunal may
(a)if satisfied that the order is justified, make a HBWC remedy order; or
(b)otherwise, decline to make the order.
Section 47 of the SAT Act provides, relevantly:
(1)This section applies if the Tribunal believes that a proceeding
(a)is frivolous, vexatious, misconceived or lacking in substance; or
(b)is being used for an improper purpose; or
(c)is otherwise an abuse of process.
(2)If this section applies, the Tribunal may order that the proceeding be dismissed or struck out and make any appropriate orders.
(3)The Tribunal’s powers to act under subsection (2) are exercisable only by a legally qualified member.
(4)The Tribunal may act under subsection (2) on the application of a party or on its own initiative.
Tribunal observations of Building Commissioner's decision
The Building Commissioner could have refused to accept the applicant's complaint upon the basis that the dispute between the parties is not a HBWC complaint (see below) and is therefore misconceived or not made in accordance with the BS(CRA) Act: see s 7((1)(b); s 7(3)(a) and s 7(3)(d) of the BS(CRA) Act. However, he did not refuse to accept the complaint.
The Building Commissioner could have dismissed the complaint following investigation pursuant to s 11(1)(a) of the BS(CRA) Act. However, although the Building Commissioner's authorised officer notes:
[o]n its face it is a contract in relation to commercial building work and is seemingly outside the jurisdiction of the Commission
the complaint was not dismissed.
Reasons
At the hearing on 29 November 2011, the Tribunal made orders for directions for each party to prepare an outline of their submissions on the issue of jurisdiction. Upon consideration of the parties' submissions, and for the following reasons, the Tribunal concludes that:
•the dispute, which is the subject of the complaint referred by the Building Commissioner, is beyond the Tribunal's jurisdiction to deal with pursuant to s 38 or s 43 of the BS(CRA) Act;
•the dispute is misconceived for the purposes of s 47(1) of the SAT Act; and
•the dispute is dismissed pursuant to s 47(2) of the SAT Act.
The complaint does not allege that the work performed by the respondent is faulty or unsatisfactory or was not undertaken in a proper and proficient manner. Therefore, the complaint is not a building service complaint for the purposes of s 5(1) of the BS(CRA) Act.
The complaint is that the respondent breached the contract in failing to perform its obligations under the contract. However, the contract between the parties is not a HBWC, because it does not concern the construction or reconstruction of, the alteration, improvement to or the construction or carrying out of defined associated work to a 'dwelling' as defined by s 3 of the HBC Act. As such, the contractual dispute between the parties is not one that is capable of being the subject of a HBWC complaint made pursuant to s 5(2) of the BS(CRA) Act.
The matter that has been referred to the Tribunal is not a HBWC complaint (nor is it a building service complaint) and the Tribunal has no jurisdiction to deal with such a complaint. Accordingly, the dispute is beyond the jurisdiction of the Tribunal, is misconceived and is dismissed pursuant to s 47(2) of the SAT Act.
Costs
The respondent's submissions contain an application for an order for costs against the applicant. The Tribunal declines to make an order for costs in favour of the respondent and against the applicant. Section 49 of the BS(CRA) Act provides that the Tribunal may make such orders for costs as it thinks fit in relation to proceedings arising from a building service complaint or a HBWC complaint. In this matter, the Tribunal considers that the commencement of the complaint with the Building Commissioner was misconceived but that the issue of the application in the Tribunal, although misconceived, is not one in which the applicant was at fault. The Tribunal considers that the complaint has been misdirected to the Tribunal by the Building Commissioner and for those reasons does not consider it fit for the applicant to bear the costs of the respondent in these proceedings.
Order
The Tribunal orders as follows:
The application is dismissed pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA).
I certify that this and the preceding [27] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS NATASHA OWEN-CONWAY, MEMBER
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