Holland and Kilicci and Anor
[2008] WASAT 70
•1 APRIL 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: BUILDERS' REGISTRATION ACT 1939 (WA)
CITATION: HOLLAND and KILICCI & ANOR [2008] WASAT 70
MEMBER: MR C RAYMOND (SENIOR MEMBER)
HEARD: 28 FEBRUARY 2008
DELIVERED : 1 APRIL 2008
Edited reasons delivered extemporaneously on 28 FEBRUARY 2008
FILE NO/S: CC 1950 of 2007
BETWEEN: PETER RICHARD HOLLAND
Applicant
AND
LEVENT KILICCI
ALISHA ANNE MORTAS
Respondents
Catchwords:
Builders' Registration Act 1939 (WA) - Failure to comply with preliminary notice - Jurisdictional error
Legislation:
Builders' Registration Act 1939 (WA)
Result:
Application for leave and review granted
Decision under review set aside
Category: B
Representation:
Counsel:
Applicant: Mrs R Holland (Acting as Agent)
Respondents : In person
Solicitors:
Applicant: N/A
Respondents : N/A
Case(s) referred to in decision(s):
Tangent Nominees Pty Ltd and Edwards [2006] WASAT 243
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant applied for leave to review a decision of the Building Disputes Tribunal reflected in Order to Pay No 100/200708. By consent, the application for leave and the review were dealt with at the initial directions hearing on 28 February 2008. The Tribunal provided oral reasons for decision at the conclusion of the hearing.
The grounds for review raised that the Building Disputes Tribunal had proceeded with the final hearing of the matter in the absence of the applicant. The Tribunal concluded that the Building Disputes Tribunal was justified in proceeding as it did because due notice of the hearing had been served on the applicant and the failure to attend was solely due to the fault of the applicant. However, in the course of the application, it emerged that the applicant had never been served with a preliminary notice, or indeed any other documentation in relation to the proceedings, other than the final notice of hearing and the order to pay, the subject of the review. As the jurisdiction of the Building Disputes Tribunal was dependent upon a preliminary notice being given prior to the lodging of a complaint the Tribunal found that the Building Disputes Tribunal did not have jurisdiction to deal with the matter. Consequently, leave to review the decision was granted and the decision under review was set aside.
Reasons for decision
In this matter, the applicant (builder) has applied to the Tribunal to review a decision of the Building Disputes Tribunal (BDT) reflected in Order to Pay No 100/200708 dated 27 November 2007, in terms of which he was ordered to pay the respondents (owners) an amount of $7,807. On 28 February 2008, the Tribunal gave oral reasons for granting the application for leave and setting aside the decision under review. Those reasons are published below, subject only to minor editing.
The application was amended to include specifically orders sought for leave to review the decision of the BDT reflected in Order to Pay No 100/200708 dated 27 November 2007 and (3) that the time for bringing the application be extended.
The matter came on for a directions hearing on 28 February 2008. However, as the matter progressed Mrs Holland, who was given leave to represent her husband, the builder, indicated that she had prepared her statement and was willing to have the matter disposed of finally. The owners indicated that they would consent to the matter being dealt with on that basis. Given the nature of the dispute, that was a sensible approach on the part of both parties to minimise delay in having the matter finalised.
Mrs Holland tendered a statement which the Tribunal accepted as exhibit 2. She recounted, and it appears in exhibit 2, that the only notices ever received in relation to this matter were a notice of set down of the building disputes matter for hearing and in due course the order to pay to which reference has been made.
During the course of the proceedings, and as a result of information provided by both parties, it is common cause that an initial hearing occurred or was set down in August 2007. That hearing had to be adjourned because of the failure of the builder to appear. It was as a result of that that arrangements were made for the notice of hearing in respect of the later hearing which was set down on 26 November 2007 to be served by way of a process server. That notice of hearing which was provided by Mrs Holland was accepted as exhibit 1.
On inquiry with the owners, it became apparent that their original complaint and a letter relied on as constituting a preliminary notice had been sent by post to the builder at the two addresses known to the owners. That was an address being 5 Quong Place in Atwell and to an address given as 101 Beenyup Road, Banjup. Mrs Holland's statement reflects that she and her husband have not resided at 5 Quong Place for several years. The statement reflects that she and her husband live at Lot 101 Beenyup Road in Banjup.
The statement that nothing was received from the BDT other than the two formal notices to which reference has been made, appears on a balance of probability to be true. It was because of uncertainty that notices were being received by the applicant that it was necessary to effect service of the final notice of hearing by process server.
It appears from these facts that the BDT was entitled to proceed with the hearing on 26 November 2007 in the absence of Mr Holland because due notice of the hearing had been served and he had not appeared. Mrs Holland explained that she telephoned the BDT on Monday 26 November 2007 to confirm that her husband would be appearing on the date which he had diarised which was erroneously the Wednesday. The BDT informed her that the matter had been already heard and finalised earlier that day.
The Tribunal finds that the BDT was entitled to conclude in those circumstances that it could proceed to hear the matter and the hearing was in that respect valid. However, what has emerged in the further information provided to the Tribunal is that the original complaint form and the preliminary notice were not received by the builder. This Tribunal has previously held in Tangent Nominees Pty Ltd and Edwards [2006] WASAT 243 that the failure to give a preliminary notice prior to lodging a complaint with the BDT is a fatal flaw. That step is a necessary jurisdictional requirement and the failure to give a notice before lodging the complaint has the result that the BDT does not and did not have jurisdiction to deal with this matter.
That is a most unfortunate state of affairs. It need not, however, result in more delay than necessary. It is apparent that the work in question was carried out in September 2006. There is therefore no time bar issue. In fact, when this matter was canvassed with the parties, Mr Kilicci and Ms Mortas advised that they had an extra copy of the preliminary notice on which they had originally relied and that was handed to Mrs Holland. Consequently, the requirements to give a preliminary notice have now been met and once these proceedings have been dismissed, it will be open to the owners to lodge a fresh complaint with the BDT.
It will be a matter for the BDT, but on the face of it there is no reason why the BDT cannot regard, as being in evidence before it, the contents of the earlier file. In that way, it should not be necessary for a building inspector to carry out a further inspection and it should be possible to set the matter down for a hearing at short notice. That will have the consequence that Mr Holland, the builder, will have the opportunity which he seeks to be heard on the matter.
For those reasons the application for leave and the review, which in the circumstances must be taken as having been heard together, must be granted and the order of the BDT must be set aside.
Orders
For the above reasons, the Tribunal orders:
1.The application is amended by adding as orders 2 and 3 under decision sought:
2."Leave to review the decision of the Building Disputes Tribunal reflected in Order to Pay No 100/2007-2008."
3."That the time for bringing the application be extended."
2.The time for bringing this application is extended.
3.The application for leave and the review of the decision of the Building Disputes Tribunal reflected in Order to Pay No 100/2007-2008 is granted.
4.The decision under review is set aside.
I certify that this and the preceding [15] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR C RAYMOND, SENIOR MEMBER
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