HODGES and 101 RESIDENTIAL PTY LTD

[2015] WASAT 91

HODGES and 101 RESIDENTIAL PTY LTD [2015] WASAT 91

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2015] WASAT 91
Act:	BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)
Case No:	CC:1171/2014	Heard:	21 AND 23 APRIL 2015
Coram:	MR C RAYMOND (SENIOR SESSIONAL MEMBER)	Delivered:	24/08/15
No of pages:	20	Judgment Part:	1 of 1
Result:	Application for leave refused
Category:	B
PDF Version

Parties:	SUSAN HODGES 101 RESIDENTIAL PTY LTD
Catchwords:	Building Services (Complaint Resolution and Administration) Act 2011 (WA) Application for leave to apply for internal review under s 58(2) Whether Tribunal denied the applicant procedural fairness Whether original Tribunal erred in assessment of conflicting evidence Principles on which regard can be had to new evidence not before original Tribunal Whether original Tribunal erred in failing to have regard to alleged settlement agreement Effect of parol evidence rule
Legislation:	Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 58(2) State Administrative Tribunal Act 2004 (WA), s 27(1), s 79
Case References:	Council of the City of Greater Wollongong v Cowen (1955) 93 CLR 435 Filimon and Rimmer [2013] WASAT 13 Lackovic v Insurance Commission (Western Australia) (2006) 31 WAR 460 Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 Myron Holdings Pty Ltd and Bombak [2013] WASAT 20 Pearce & Anor and Germain [2006] WASAT 305
Orders	On the application heard on 21 and 23 April 2015 before Senior Sessional Member Clive Raymond, it is on 25 August 2015 ordered that:,1. The application for leave to review the decision of the Tribunal made on 18 July 2015 is dismissed.,2. The matter is listed for directions on 22 September 2015 at 10 am to address and program the hearing of the outstanding claim for delay damages.
Summary	The applicant applied for an internal review of a decision dismissing complaints made under the Building Services (Complaint Resolution and Administration) Act 2011 (WA).,The applicant also sought leave to adduce new evidence for the purpose of the leave application. The new evidence was alleged to demonstrate that there would be a substantial injustice if leave to review were not granted and, in some respects, to show that the Tribunal had erred in its decision.,The Tribunal outlined the principles to be applied in relation to applications to adduce new evidence. In respect of some of the evidence, the Tribunal found that it was appropriate to admit the evidence, but it did not impact on whether or not there would be a substantial injustice if leave to review were not granted. In relation to evidence which could have been led at the original hearing, the Tribunal found that the evidence was not likely to lead to an opposite result, and would therefore not be admitted.,As to the merits of the review, the Tribunal examined all of the grounds of the review and found that the original Tribunal had not erred in any of the respects alleged.,The application for leave to review was accordingly dismissed.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA) CITATION : HODGES and 101 RESIDENTIAL PTY LTD [2015] WASAT 91 MEMBER : MR C RAYMOND (SENIOR SESSIONAL MEMBER) HEARD : 21 AND 23 APRIL 2015 DELIVERED : 24 AUGUST 2015 FILE NO/S : CC 1171 of 2014 BETWEEN : SUSAN HODGES

Applicant

AND

101 RESIDENTIAL PTY LTD
Respondent

Catchwords:

Building Services (Complaint Resolution and Administration) Act 2011 (WA) - Application for leave to apply for internal review under s 58(2) - Whether Tribunal denied the applicant procedural fairness - Whether original Tribunal erred in assessment of conflicting evidence - Principles on which regard can be had to new evidence not before original Tribunal - Whether original Tribunal erred in failing to have regard to alleged settlement agreement - Effect of parol evidence rule

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 58(2)

State Administrative Tribunal Act 2004 (WA), s 27(1), s 79

Result:

Application for leave refused

Summary of Tribunal's decision:

The applicant applied for an internal review of a decision dismissing complaints made under the Building Services (Complaint Resolution and Administration) Act 2011 (WA).

The applicant also sought leave to adduce new evidence for the purpose of the leave application. The new evidence was alleged to demonstrate that there would be a substantial injustice if leave to review were not granted and, in some respects, to show that the Tribunal had erred in its decision.
The Tribunal outlined the principles to be applied in relation to applications to adduce new evidence. In respect of some of the evidence, the Tribunal found that it was appropriate to admit the evidence, but it did not impact on whether or not there would be a substantial injustice if leave to review were not granted. In relation to evidence which could have been led at the original hearing, the Tribunal found that the evidence was not likely to lead to an opposite result, and would therefore not be admitted.
As to the merits of the review, the Tribunal examined all of the grounds of the review and found that the original Tribunal had not erred in any of the respects alleged.
The application for leave to review was accordingly dismissed.

Category: B

Representation:

Counsel:

Applicant : In Person
Respondent : Mr C Bourhill

Solicitors:

Applicant : N/A
Respondent : Lavan Legal

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

Council of the City of Greater Wollongong v Cowen (1955) 93 CLR 435
Filimon and Rimmer [2013] WASAT 13
Lackovic v Insurance Commission (Western Australia) (2006) 31 WAR 460
Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125
Myron Holdings Pty Ltd and Bombak [2013] WASAT 20
Pearce & Anor and Germain [2006] WASAT 305

REASONS FOR DECISION OF THE TRIBUNAL:

The application for leave to review

1 On 18 July 2014, the Tribunal, constituted by Ms J McGowan, a senior sessional member, and Mr C Marsh, a sessional member (original Tribunal), delivered a decision dismissing aspects of a complaint made by the applicant concerning alleged misleading and deceptive conduct and breach of contract by the respondent. The contract related to the construction of a dwelling by the respondent for the applicant at Lot 179 Celestine Avenue, Wellard in the State of Western Australia. A further complaint alleging misleading and deceptive conduct relating to the time for completion of the dwelling was to be the subject of a later hearing, but that has not been pursued, pending the outcome of the proposed review proceedings.

2 The applicant has applied for leave to review the above decision pursuant to s 58(2) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act). The hearing of that application took place on 21 and 22 April 2015. The hearing took up some one and a half days due to the extent to which the applicant challenged aspects of the decision and the very comprehensive submissions advanced in support of the application.

3 The application for leave itself raised very limited grounds but reserved the right to expand the grounds of review when written reasons for decision were received. This must be understood to be a reference to a transcript of the oral reasons for decision which were provided as constituting the Tribunal's written reasons for decision pursuant to s 79 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). At the first directions hearing thereafter, the Tribunal (then differently constituted) ordered that the applicant file submissions detailing the errors alleged to have been made by the original Tribunal. As a result, the grounds of review have to be extracted from the submissions filed by the applicant.

4 The applicant's submissions comprise 12.5 tightly typed pages and comprise some 106 paragraphs under eight main grounds of review. The submissions made in many of these paragraphs could be read as stand-alone grounds of review, inconsistent with the main headings under which they appear, and in many other instances, the submissions overlap or repeat submissions made elsewhere within the document.

5 All of the applicant's submissions have been considered. However, it would not assist comprehension of these reasons for decision to repeat the submissions, and to treat each separately would result in unnecessarily prolix reasons for decision. The substance of the applicant's submissions will be dealt with under the following revision of the grounds of review as I understand them.

The grounds of the proposed review

1) New evidence should be admitted which demonstrates that:

(a) the original Tribunal erred in concluding that the Termico roof timber treatment (Termico treatment) provided by the respondent is as effective as Wespine Blue treated timber (Blue Pine treatment), or that such timber as treated by the respondent may properly be described as a treated timber;

(b) despite evidence from the respondent's Termico treatment contractor that the warranty would be amended to ensure that its warranty would apply for 25 years, the respondent and/or the Termico treatment contractor had refused to provide such amended warranty, which affected the original Tribunal's conclusion that even if the applicant had been misled in the relevant respect (contrary to the original Tribunal's findings), she had suffered no loss;

(c) the remedy to which the applicant should be entitled is now one for payment of a sum of money rather than a remedial work order (if successful on review).


2) The original Tribunal denied the applicant procedural fairness by not permitting the applicant to establish by cross-examination the difference between the Termico treated timber and a properly termed 'treated timber'.

3) In any event, on the evidence before the original Tribunal, the original Tribunal erred in finding that there is no difference between a Blue Pine treated timber roof frame and 'an untreated pine roof sprayed' with the Termico treatment.

4) The original Tribunal erred by misinterpreting the evidence of the respondent's witness, Ms Hayley Smith, and on a proper understanding of the evidence, should have found that the applicant was misled into believing that the dwelling would be constructed using a Blue Pine treated timber roof.

5) The original Tribunal erred in failing to take into account an agreement by the respondent to remedy all defects.

6) The original Tribunal erred in failing to take into account all the terms of the agreement between the parties, including oral and implied terms, and if it had done so, should have found that the garage and living room walls were to be constructed to allow for the ceilings to be installed at a height of 31 brick courses above the finished floor level.

The applicable legal principles

The criteria for the grant of leave

6 In Myron Holdings Pty Ltd and Bombak [2013] WASAT 20 (Bombak) at [8], the Tribunal set out the following criteria for the grant of leave as extracted from the comprehensive discussion in Filimon and Rimmer [2013] WASAT 13 (Filimon):

1) It is necessary to show that the decision of the original Tribunal was wrong or attended with sufficient doubt.

2) It must be shown that if leave were not to be granted, the applicant would suffer a substantial injustice.

3) It will normally not be sufficient that the decision appealed from is apparently wrong or attended with doubt. Something more will need to be shown, such as that there is a significant question of law to be considered, or some other feature, which requires the consideration of the Tribunal to avoid a substantial injustice of leave were not to be granted.

4) The decisions of the original Tribunal are not to be read minutely and finely with an eye keenly attuned to the perception of error.

5) A broad view should be taken of all the material before the original Tribunal, and this Tribunal should be slow to grant leave to review or to allow reviews except in cases where, clearly, there is no discernible basis for the decision or, for example, where fundamental rules of natural justice have been breached.

6) Leave may be granted in respect of only some and not other grounds of the proposed review.

7) Having regard to the objects of the Tribunal, and because any review is by way of a hearing de novo, there is all the more reason to be particularly discerning about whether sufficient doubt exists to open the possibility of leave being granted.

8) In considering challenges to the weight of evidence, regard must be given to the expertise of the members of the original Tribunal.

The above criteria must, of course, be read in the context of the recognition in Rimmer, at [10], that the Tribunal, in any event, has a broad discretion to have regard to other features which might require consideration on review in order to avoid a substantial injustice.

The admission of new evidence

7 Under s 27(1) of the SAT Act, the review of a reviewable decision is to be by way of a hearing de novo, and is not confined to matters that were before the decision-maker, but may involve the consideration of new material, whether or not it existed at the time the decision was made.

8 There is therefore usually no difficulty in new evidence being led at a review hearing subject to relevance. The existence of such evidence which might result in an opposite result from that expressed in the decision sought to be reviewed will be relevant to consideration whether a substantial injustice would result if leave were not to be granted. However, where the evidence was available at the time of the original hearing, different considerations, in my view, will apply at the stage of consideration of the application for leave.

9 In considering whether new evidence should be admitted on an appeal, the principles applied by the court in Western Australia is that a discretion should be exercised according to the principles outlined by the High Court in Council of the City of Greater Wollongong v Cowen (1955) 93 CLR 435 (Wollongong): see Lackovic v Insurance Commission (Western Australia) (2006) 31 WAR 460. In Wollongong, the High Court stated that consideration should be given to whether:

a) the evidence could not, by reasonable diligence, have been obtained at the trial;

b) had the evidence been adduced at the trial, an opposite result was likely; and

c) the new evidence was credible.

Consideration of the grounds of review

10 It is convenient to consider ground 1(a) in conjunction with ground 3 as the evidence sought to be admitted relates to the issues raised under ground 3.

Grounds 1(b) and 1(c)

11 As reflected in these grounds, the applicant wishes to rely on evidence from events which have occurred subsequent to the decision delivered on 18 July 2014 by the original Tribunal. It is not in dispute that since that date, the applicant had called for the respondent and/or the Termico treatment contractor to provide an amended warranty as the contractor, through Mr Simon Cherry, had given evidence it would do before the original Tribunal. The variation was to remove a provision which would exclude liability because a particular stamp did not appear on the timber to assert that it had been treated in accordance with an applicable Australian Standard. Either the Termico treatment contractor or the respondent has failed or refused to provide the amended guarantee. If it had been known by the original Tribunal that the guarantee would not be provided, that might have affected a finding of the original Tribunal that the applicant had not been put in a worse position than if the Blue Pine treatment had been used.

12 It is also common cause that subsequent to the handing down of the original decision, the respondent has terminated the contract (construction of the dwelling had ceased after the dispute arose between the parties concerning the treatment of roof timbers). As a result, the applicant asserts that the remedy sought by her should change from a remedial work order to seeking an order for monetary payment.

13 While the final decision would have to be made in a review hearing, it is unlikely that the applicant would have difficulty in placing this evidence before the review Tribunal, and it is also evidence relevant to whether there would be a substantial injustice if leave were not to be granted. Of course, the issue of the remedy arises only if the applicant were to be successful on review.

14 At the leave hearing, the representative for the respondent was unaware why a varied warranty had not been supplied. Attempts were made during the hearing to obtain instructions but Mr Cherry was not able to be contacted. An issue also arose concerning the new evidence which the applicant wished to advance raised by ground 1(a) which included an email communication from a representative from WESPINE Industries Pty Ltd which referred to an Australian Standard (AS 1604.1 -2012) and to pages of that document attached to the email. The attachments were not included with the email filed with the respondent's submissions. In the circumstances, the Tribunal gave both parties leave to file, in the case of the applicant, a complete copy of any Australian Standard upon which she wished to rely, and in the case of the respondent, a copy of any amended warranty certificate as might be issued by Termico to the applicant.

15 Both parties availed themselves of this opportunity. Relevant to this ground, the respondent has provided a letter, copied to the applicant, attaching an amended Termico warranty certificate in terms which remove the relevant exclusion. In the circumstances, the evidence of the difficulty in obtaining the certificate does not constitute a substantial injustice justifying the grant of leave. Whether leave should be granted will depend on the outcome of the other grounds of review and whether any substantial injustice might arise for other reasons.

Ground 2

16 The applicant asserts that she was denied procedural fairness because she was not permitted to cross-examine on the difference between the Termico treatment and the Blue Pine treatment.

17 The issue was first opened up when the applicant was giving evidence as a result of a question from the presiding member - which was implicitly based on an understanding that there were some material differences between the Blue Pine treatment and the Termico treatment. The applicant was asked by the presiding member whether something could be applied to the Termico treatment to bring it up to the same standard as the Blue Pine treatment. When the applicant attempted to answer that question, counsel for the respondent objected, outlining that the respondent's case was based on the fact that Blue Pine is exactly the same as the Termico treated pine, with the only difference being that one comes with a blue colour stain that indicates that it has been treated, while the other is its natural colour and then a spray is applied afterwards (T:111; 18.07.14). That objection set the basis for a later objection when the applicant attempted to cross-examine the Termico representative, Mr Cherry, who was giving evidence for the respondent. Counsel for the respondent objected to the line of cross-examination. Mr Cherry was asked how he could know that every single beam had been covered by the Termico treatment. The objection taken was that:

The applicant hasn't raised any evidence to suggest any aspect of the roof in particular is missing treatment because it has failed to be applied properly. The complaint was, 'I don't accept the spray on-site' not that the spray hasn't been applied properly or is missing in certain areas.

A fairly lengthy exchange then occurred between the presiding member and the applicant, the effect of which was that the Tribunal upheld the objection.

18 The issues between the parties were defined, as is often the case in building matters, by the completion of a Scott Schedule. The Scott Schedule included two item 8 complaints, both of which related to the roof frame having been made of allegedly untreated pine. The first item 8 was advanced on the basis of alleged misleading conduct relating to that issue. The second item 8 related to an alleged breach of contract by providing timber alleged not to be treated. Nowhere in the fairly lengthy description of those complaints set out by the applicant is there any reference to the respondent having applied a treatment which was defective because it had not covered all areas.

19 I consider that the objection was properly upheld and consequently there was no denial of procedural fairness.

Grounds 3 and 1(a)

20 The applicant asserts that the Tribunal erred in finding that there was no difference between the Blue Pine treatment and the Termico treatment of the roof frame.

21 The effect of the original Tribunal's findings was as asserted by the applicant. Having found that there had been no misleading conduct in relation to the treatment of the pine, the Tribunal went on to say that:

… the on-site spraying puts her in no worse position than if the blue pine had been used. Further, indeed, based on the evidence of Mr Cherry's statements, the on-site protection has given her better protection than that which she would have received if the roof had been constructed of blue pine because it covers ends and other areas where the envelope method of protection achieved in the factory would be compromised.

All that she is missing is blue spray which is of no purpose other than aesthetic which is, in effect, hidden once the roof is completed. The blue spray plays no role in protecting. Ms Hodges is in no worse position for which compensation ought to be ordered but possibly a better one. … (T:13; 18.07.14)

22 The applicant relies heavily on the evidence of two witnesses to support her case: the first, Mr Jack Stewart, who is a carpenter and joiner; the second, Mr Neil Bartlett, who is a civil engineer. The original Tribunal made numerous references to their evidence throughout the reasons for decision. Mr Stewart had no training or experience in pest control. Mr Bartlett admitted that pest control was not within his field of expertise. The original Tribunal preferred the evidence of Mr Cherry, who had 20 years' experience in relation to pest control.

23 On the evidence which was before the original Tribunal, the findings that, as I understand it in terms of effectiveness, there was no real difference between the Blue Pine and Termico treatments, was open to the Tribunal. I do not consider that any error is demonstrated on the part of the original Tribunal in this respect. The question remains whether the proposed new evidence would justify the grant of leave to review.

24 The new evidence comprises an email from a representative from WESPINE Industries Pty Ltd dated 8 May 2014 addressed to the applicant.

25 The email states that three pages of AS 1604.1 – 2012, which is the Australian Standard specification for Preservative Treatment Part 1: Sawn and round timber, are attached. The pages were not attached to the copy provided to the Tribunal. It is stated that the standard applies to treated structural and non-structural timbers for use in the construction and landscaping industries, and that timber treated to this standard must bear a brand mark indicating the particular hazard level of treatment, the treatment plant number and the preservative code number, all as detailed in section 8 of the standard. The author states that it would be reasonable to assume that if it was claimed that the timber was treated to H2, then it would need to comply with the branding requirements.

26 The email goes on to assert that:

• timber sold as 'treated timber' is treated under controlled, monitored, tested and process audited conditions in order to guarantee compliance with the relevant standards;

• it is branded in compliance with AS 1604.1 and is assessed for compliance using the method specified in AS/NZS 1605 (Series);

• AS 1684 Residential Timber Framed Construction is the standard used to specify the requirements of roof, wall and floor construction in Australia;

• this standard is called up in the 'BCA' (reference to the Building Code of Australia (BCA)); and

• AS 1684 also references AS 1604.1, so via AS 1684, the BCA references the timber treatment standard, albeit not directly.

It was as a result of this email, in particular as the pages of AS 1604.1 - 2012 are not attached, that the applicant was given leave, as outlined above, to file a complete copy of any Australian Standard upon which she wishes to rely.

27 The applicant has filed with the Tribunal what is presumably the three pages that were attached to the above email but not the complete standard.

28 It is impossible to properly interpret and understand the significance of the provisions contained within the three pages that have been provided which commence at clause 1.7.3. There is nothing to indicate when the standard came into effect, nor when the BCA - or as it is now known, the National Construction Code (NCC) - might have adopted its provisions. The code reference 2012 might suggest that the NCC could only have adopted it at some stage during or after 2012.

29 The evidence given for the respondent by Mr Matthew Ford, the general manager of the respondent, is that at the time of entering into the contract with the applicant (5 July 2013), the building industry was predominantly using raw pine that would be treated using 'EHB spray', a generic reference to the type of spray applied in the Termico treatment. Mr Ford's evidence is that, at the time of constructing the applicant's roof, the industry started transitioning to the use of Wespine Blue and that, because of this, the respondent's timber supplier was low on raw pine and provided a mix of raw and Wespine Blue. Termico was engaged to spray the whole roof (both the raw and Wespine Blue) which was completed in October 2013.

30 Mr Ford's evidence is consistent with AS 1604.1 - 2012 being adopted sometime after execution of the contract with the applicant.

31 The weight of the evidence of Mr Matthew Ford, Ms Hayley Smith, a pre-start manager employed by the respondent, and Mr Simon Cherry of Termico is consistent with there being a transition from EHB spray to the use of Wespine Blue as outlined.

32 The proposed new evidence was available prior to the hearing. The applicant could have requested a directions hearing and indicated that she wished to amend the Scott Schedule if she wished to assert that the contract required the respondent to comply with AS 1604.1 - 2012, but she did not do so. Even if she could be excused, as a layperson, for not following this course, her witness statement could have contained assertions which clearly raised the issue. Instead, the matter was raised only very obliquely in paragraph 85 of her statement where she stated:

From discussions with numerous carpenters, they confirm that treated pine for roof construction was deemed to be pine that is treated prior to delivery on site and usually is classed from H1 - H3 for construction (Annexure T). Such pine is required by the Australian Standards to have a stamp or brand identifying the treatment applied.

33 If the matter had been clearly raised prior to the hearing so that it was known that there would be an issue about whether the respondent had to comply with AS 1604.1 - 2012, the respondent would have had a proper opportunity to investigate the matter and it would have been properly explored before the Tribunal. The email was dated 8 May 2014 and the applicant's witness statement was only filed on 18 June 2014.

34 Even when the applicant was given the opportunity to put the full Australian Standard before the Tribunal following the conclusion of the leave hearing so that its effect could be properly assessed, the applicant has not done so. When regard is had to the proposed new evidence, it is evident that it cannot be demonstrated that:

a) the evidence could not, by reasonable diligence, have been obtained and used at the trial; and

b) had the evidence been adduced at the trial, an opposite result was likely.

It follows that the new evidence should not be admitted for the purpose of demonstrating that a substantial injustice would result, in order to justify the grant of leave.

Ground 4

35 This ground asserts that the original Tribunal misinterpreted the evidence of the respondent's witness, Ms Smith, and, had the evidence, including the evidence of the applicant, been properly understood, should have found that the applicant was misled into believing that her dwelling would be constructed with a Blue Pine treated timber roof.

36 The applicant relies in particular to a portion of the reasons for decision at pages 11 and 12 at which the following is stated:

The [T]ribunal is not satisfied that there was a representation made that the treated wood is treated at the factory. Hayley Smith presented a competent professional explanation as to why she would not have made such a statement and[,] underpinned with her experience with contracts and the wording of contracts and with building materials[,] made her a compelling witness whose evidence the [T]ribunal preferred over that of Ms Hodges.

The basis of that preference is not only the reliability of Ms Smith's evidence but also the inconsistencies in the statement relating to the terminology used regarding the pine in Ms Hodges' statement. At paragraph 79, Ms Hodges states that:


'I was told during the sales process that 101 Residential used treated pine to build the roof frame.'

At paragraph 81, she then says:

'At the time of signing my contract on 10 January 2013, I also checked with Hayley Smith at pre-start that the materials listed in the contract were for treated pine - my emphasis - and that is what I was told it was and that was what was advertised for in the specifications.'

She then confirmed that Hayley advised her that if the product was advertised as treated pine that was what would be used. But then at paragraph 84, she goes on to say:

'Based on the advertising material and the assurance from 101 Residential staff member, I took it that the [material] to be used for the roof frame was treated pine, also known as blue pine.'

At paragraph 87, she says:

'From the advertising material and the conversation with 101 staff, Paul Leveris and Hayley Smith, that my roof would be constructed out of materials that have this treatment applied [prior] to construction - my emphasis - then a wood borer spray would also be applied after construction.'

These extracts from Ms Hodges' statement have led the [T]ribunal to a conclusion that she confused herself, not only in relation to the statement that was made which seemed to grow in length but also as to the terminology 'treated pine' is blue pine and that her property would be built of blue pine with treatment applied before it left the factory. This is not consistent with the original representation that she alleged was made to her by Hayley Smith.

37 The applicant points out in her submission that the statement attributed to her from paragraph 87 of her witness statement has omitted the word 'prior' to construction. The applicant submits that 'this misinterpretation of the member led her to state that she concluded that she (that is, the applicant) had confused herself'.

38 The omission of the word 'prior' is an obvious oversight. There can be no doubt that the original Tribunal understood the applicant's case that she was led to believe that the treatment would be applied prior to construction.

39 A reading of the transcript and the applicant's witness statement show that she consistently interpreted any reference to treated timber as meaning that the timber would be treated prior to construction. It is in this respect that the original Tribunal has concluded that the applicant has confused herself. There is no contest on the evidence that Ms Smith confirmed that the roof would be constructed with treated pine, but she and the applicant were at cross-purposes. As reflected in her evidence, Ms Smith understood that, in accordance with the respondent's usual practice, that meant that the roof frame would be sprayed in situ using the Termico process. In her evidence, Ms Smith summed up the issue very well in the following terms:

So I think my understanding of the question that was being asked was different to what was - what you were actually asking. So I definitely would have confirmed that the roof timber was treated. But I was referring to a different type of treatment.

40 I do not consider that the reasoning of the original Tribunal can be faulted.

41 The applicant submits that an adverse inference should be drawn from the respondent's failure to call its sales representative, Mr Paul Leveris. In making this submission, the applicant refers to a number of paragraphs in her witness statement, being paragraphs 21, 39, 79 and 80, as supporting her evidence that she had been told by the salesperson, who she referred to as Paul, that the reference to treated pine in the respondent's advertising material was that of Wespine Blue, stating that the inclusion was the same as that for Easystart (page 6 of submissions, paragraph (f)).

42 Counsel for the respondent countered this by pointing out that:

• paragraph 21 simply states that Eastystart's standard inclusions included 'Wespine Blue timber roof frame (treated pine roof frame)';

• paragraph 36 referred simply to 101 Residential advertising material referring to 'treated pine roof frame';

• paragraph 39 merely referred to the applicant stating that she would not have contracted with the respondent if it did not state it was using treated pine to construct its roof frames;

• paragraph 79 simply stated that the applicant was told during the sales process that the respondent used treated pine to build the roof frame;

• paragraph 83 stated that Ms Smith had informed the applicant that if it was advertised as treated pine then that is what it would be; and

• at paragraph 87, it was stated that from the advertising material and the conversation with the respondent's staff, Mr Leveris and Ms Smith, the applicant's roof would be constructed out of this material (in context of paragraph 84, 'treated pine', also known as 'Blue Pine') that had this treatment is applied prior to construction and then a wood borer spray would also be applied after construction,

conveyed that the applicant's case was that she was told treated pine would be used and the issue was really what that meant.

43 The reference to paragraph 79 above is most likely a reference to what the applicant was told by Mr Leveris because he was the sales representative. The applicant would have dealt later with Ms Smith, who was the pre-start consultant. The words actually attributed to them were that treated pine would be used. In that context, paragraph 87 could be read simply as a conclusion of what the applicant understood, based on these discussions, but at best for the applicant, it is ambiguous. Counsel for the respondent pointed out that a tight program had been set for the matter (which, I assume, was probably at the insistence of the applicant who, at that stage, wanted to get her home completed) and that the applicant's statement had been filed and served on 18 June 2014 and the respondent's statements were filed nine days later. The respondent had assumed that the substantive issue was whether the references to treated pine meant that the applicant was entitled to have a Blue Pine treatment applied to her roof frames.

44 Counsel for the respondent also pointed out that the applicant's Scott Schedule referred only to Ms Smith by name. It is noted that the applicant only asserts in the Scott Schedule that when the owner queried the materials written on the addenda and whether they meant the use of treated pine because that is what was advertised, the consultant stated 'then that is what it will be'.

45 All of this points to any information having been conveyed by Mr Leveris or Ms Smith being consistently that treated timber would be used without any specific reference to Blue Pine treated timber, or a suggestion that the timber treatment would be applied prior to construction. It is noted that even the applicant did not refer in submission (f) referred to above to paragraph 87 of her statement, which, again, is consistent with the paragraph recording her conclusion based on her misunderstanding that a reference to treated timber necessarily meant a Blue Pine treated timber. I am not satisfied that any error is demonstrated in the reasoning of the original Tribunal on this issue, nor that it would be appropriate to draw any inference from the failure of the respondent to call Mr Leveris.

Ground 5

46 This ground raises that the original Tribunal erred in failing to take into account an agreement by the respondent to remedy all defects.

47 This ground is entirely misconceived. The applicant asserts that a final and binding agreement was reached whereby the respondent agreed that all of the complaints raised by her in the Scott Schedule would be remedied.

48 The evidence discloses there were negotiations between the parties but the respondent denies that a final and binding agreement was reached.

49 The applicant had the choice to rely on the alleged settlement agreement and take whatever legal action was necessary to enforce it, but she did not do so. At the commencement of the original hearing, the Tribunal sought clarification of the matters to be determined. It was clarified that there was an item 8 in the Scott Schedule alleging misleading conduct in relation to the treatment of the roof framing, a second item 8 alleging breach of contract in respect of the roof framing, an item 9 alleging breach of contract in relation to the failure to construct certain ceilings at a height of 31 brick courses which could be determined that day, and that there would then remain a claim for delay damages which would have to be resolved once all costs incurred by the applicant were known (see T:9-11; 07.07.15). No mention was made that the respondent was bound to comply with a settlement agreement in terms of which it had undertaken to provide a regulated building service. No specific mention was made of this issue at any time during the hearing.

50 At the conclusion of the original hearing on 7 July 2014, the Tribunal discussed with the parties an adjournment in order to deal with the delay claim (T:181; 07.07.15). During the discussion which followed, counsel for the respondent made a brief reference to the possibility of a resolution between the parties and an offer of resolution which was dependent on, as I understand the transcript, a two week extension of time, which was, according to the respondent, rejected by the applicant. The applicant made no submissions on this issue. The Tribunal had, shortly prior to that, indicated that the hearing was completed in respect of the issues heard that day and that no further evidence would be allowed on these issues.

51 This proposed ground of review cannot succeed.

Ground 6

52 This ground alleges that the original Tribunal erred in failing to take into account all the terms of the agreement between the parties, including oral and implied terms, and if it had done so, should have found that the ceilings in the garage and living room areas should have been constructed to a height of 31 brick courses above the finished floor level.

53 The original Tribunal set out in more than sufficient detail the basis upon which it came to a finding as to the terms of the contract between the parties. The signed contractual documents did not provide for ceilings at the height for which the applicant contends.

54 While the Tribunal is not bound by the rules of evidence, there are some essential rules which must be applied. One of these is the parol evidence rule which prevents extrinsic evidence being used to contradict the written terms of a contract: see Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 at [57].

The oral discussions on which the applicant seeks to rely would have this effect.

55 If, in fact, there was an agreement that the ceilings concerned would be constructed to a height of 31 brick courses, which, by common mistake, has not been included in the written contract, then that is a matter in respect of which it would be necessary to advance a claim for rectification. This is, however, an equitable remedy in relation to which the Tribunal does not have a general jurisdiction: see Pearce & Anor and Germain [2006] WASAT 305.

Conclusion and orders

56 It follows that, for the above reasons, none of the grounds for proposed review by the applicant are made out and the application for leave to review falls to be dismissed.

57 It is, however, necessary that the matter be listed for a directions hearing to address the remaining delay claim.

58 The Tribunal will accordingly cause an order to issue as follows:

1. The application for leave to review the decision of the Tribunal made on 18 July 2014 is dismissed.

2. The matter is listed for a directions hearing on 22 September 2015 at 10 am to address and program the hearing of the outstanding claim for delay damages.

I certify that this and the preceding [58] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR C RAYMOND, SENIOR SESSIONAL MEMBER