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
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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] WASAT 91
Decision Date: 24 AUGUST 2015

CaseChat Overview and Summary

In the case of Hodges and 101 Residential Pty Ltd, the respondent sought leave to apply for internal review of a decision made by the Building Services Tribunal of Western Australia. The dispute centred around the respondent's claim that the Tribunal had denied them procedural fairness during the original proceedings. Additionally, the respondent contended that the Tribunal had erred in its assessment of conflicting evidence and in failing to consider an alleged settlement agreement. The application for leave was made under the Building Services (Complaint Resolution and Administration) Act 2011 (WA).

The primary legal issues before the court were whether the Tribunal had indeed denied the respondent procedural fairness, whether the original Tribunal had erred in its assessment of conflicting evidence, and whether the Tribunal was in error for not considering the alleged settlement agreement. Furthermore, the court had to consider the principles governing the admissibility of new evidence not presented to the original Tribunal and the effect of the parol evidence rule.

The court held that the respondent had not demonstrated any procedural unfairness on the part of the Tribunal. It was found that the Tribunal had appropriately assessed the conflicting evidence and had not erred in its assessment. The court also ruled that the original Tribunal was not in error for failing to consider the alleged settlement agreement, as it was not relevant to the decision made. The court emphasised the importance of the parol evidence rule and noted that the respondent had not demonstrated grounds for departing from this principle. Consequently, the court refused the application for leave to apply for internal review.

No specific orders were made beyond the refusal of the application for leave. The respondent was not granted permission to seek internal review of the Tribunal's decision.

Orders

Orders of the court

Application for leave refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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