| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : PAINTERS' REGISTRATION ACT 1961 (WA) CITATION : HOLLOWAY and PERREAU [2010] WASAT 192 MEMBER : MR P McNAB (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 13 AUGUST 2010 FILE NO/S : VR 46 of 2010 BETWEEN : NATHAN HOLLOWAY SHARON LAIDLER
Applicants
AND
WENDY PERREAU
Respondent
Catchwords: Building and construction - Painting - Unsatisfactory painting work - Residential building - Whether painting work done in a 'proper and workmanlike' manner - Review of an order to pay made by the Painters' Registration Board - Whether leave required - Leave not required - Review sought by painter - Whether order to remedy or reduced compensation sum should be paid - Owner had sold premises - Impracticality of order to remedy - Tribunal accepting Inspector's report and industry-based assessment of compensation by Painters' Registration Board - Application for review dismissed
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Legislation: Builders' Registration Act 1939 (WA), s 16D(1), s 41(2)
Painters' Registration Act 1961 (WA), s 18, s 18(1), s 18(2) Result: Application for review dismissed Category: B
Representation: Counsel:
Applicants : Selfrepresented
Respondent : Selfrepresented
Solicitors:
Applicants : Self-represented
Respondent : Self-represented
Case(s) referred to in decision(s):
Allen and Guerinoni [2007] WASAT 253; (2007) 57 SR (WA) 66
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 This was a review of a decision of the Painters' Registration Board to make an order to pay in the sum of $3,025 in respect of alleged unsatisfactory workmanship by a painter. The respondent painter before the Painters' Registration Board, Mr Holloway, is the applicant for a review in this Tribunal. The applicant before the Painters' Registration Board, and the respondent in these proceedings, is the home owner, Ms Perreau. 2 Leave is not required to bring such a review, and the Tribunal declined to follow a previous decision of this Tribunal, from 2007, which suggested otherwise. 3 The Painters' Registration Board found that certain painting work on a house in High Wycombe was not carried out in a proper and workmanlike manner. The painter sought a review of the decision on the grounds that he ought to have been permitted to rectify the alleged defects or alternatively that he pay to the owner no more than the sum of $1,250. 4 The painter also raised certain essentially contractual matters (such as the wall colours chosen by the owner) which were not, in fact, matters originally in dispute between the parties. He also queried aspects of the Painters' Registration Board's procedures. He also wanted proof of the fate of the monies that he had been ordered to pay, asking, in effect, whether they had actually been spent on rectification work. The owner had sold the house and claimed that any compensation paid to her would, in any event, reflect a diminished sale price, reflecting, in turn, the poor state of the painting work. 5 The Tribunal ruled that these matters were either outside the jurisdiction of the Tribunal or irrelevant to the review. 6 The Tribunal had before it the Inspector's report, which was not challenged, and the expert industry-based judgment of the Painters' Registration Board on an appropriate compensation amount for the rectification work involved. The home owner relied upon these findings and the Tribunal also accepted this material. 7 The Tribunal found that there was evidence of unsatisfactory workmanship; indeed, the painter had admitted as much. (Page 4)
8 The Tribunal declined to make an order for rectification, mainly because the subject premises now belonged to a third party. 9 The Tribunal dismissed the application for review and affirmed the Painters' Registration Board's decision under review. 10 What follows is a formally revised and edited version of the reasons delivered orally by the Tribunal.
Introduction 11 On 10 March 2010, Mr Nathan Holloway (painter) sought a review in this Tribunal under s 18(1) of the Painters' Registration Act 1961 (WA) (PR Act) of a decision of the Painters' Registration Board (PRB) dated 10 February 2010, being an order to pay, namely order to pay No 6 of 2010. That decision of the PRB was in the following terms: Upon receiving complaint No CM027114-#4888 on 24 November 2009, and upon considering the evidence before it, inclusive of the Inspector's Notice of Assessment dated 2 November, 2009, the [PRB] in its meeting on Monday 8 February, 2010 pursuant to Section 16D(1)(b) of the Painter's Registration Act 1961 resolved:- Having been satisfied the painting work carried out by Mr Nathan Kevin Holloway [painter] was not carried out in a proper and workmanlike manner, the [PRB] orders that Mr Holloway [sic] to pay Ms. Wendy Perreau [the home owner] the amount of $3025 ... within fourteen days of the date of this order. (Original emphasis) 12 The order to pay reflected the poor state of painting work undertaken by the painter at premises known as No 7 Jaeger Court, High Wycombe, a dwelling then owned by the respondent home owner, Ms Perreau (respondent owner). These premises have now been sold by Ms Perreau and she no longer resides there.
Grounds of the review 13 The sole ground of review advanced by the painter was in these terms: To be able to rectify the defects or to have the order from the [PRB] cancelled. 14 However, a letter attached to the painter's application to this Tribunal lists 14 items of concern on his part. These concerns may be divided, I think, into the following four broad categories: (Page 5)
1) alleged communication problems about the colours chosen by the owner; 2) an alleged lack of opportunity to remedy defects, and the late communication of the same to the painter; 3) concerns about the inspection processes of the PRB and the outcome of the PRB's processes; and 4) a demand for proof as to the fate of the money paid or to be paid by the painter, namely: was the money, in fact, spent on rectification of the alleged unsatisfactory workmanship?
Limitations on the matters under review 15 At this point, I should observe that the review cannot extend to issues of the correct colours chosen by the owner in relation to the contractual obligations between the parties. This is in the respondent owner's own case below (in the PRB) and having regard to her approach in this Tribunal. In short, no real complaint was before the PRB as to that matter, and the issue was not addressed by the PRB's Inspector. 16 Nor, in my view, does the review extend to the various administrative or inspection procedures adopted by the PRB. These problems, if they exist, are for others to inquire into. 17 Nor is the question of proof of the fate of the sum payable under the order to pay in issue. What the owner does with any payment received (which is a form of compensation) is solely her or his own business. Here, in any case, the owner says that the sale price of the house reflected the poor state of the painting or finish at the point of sale, implying a discount or equivalent loss on the sale price. 18 These matters are simply irrelevant, either to this Tribunal's review jurisdiction in this case, or as regards the real matters in dispute between the parties. 19 In my view, there are only two relevant matters in dispute: First, was there unsatisfactory workmanship? And, secondly, if so, what remedy should be invoked: see s 16D(1) of the PR Act. (Page 6)
Nature of the review 20 It appears that only the painter can seek a review in this Tribunal: see s 18(2) of the PR Act defining who is a 'person aggrieved' for the purposes of the PR Act. And, unlike a review under the corresponding consumer protection laws dealing with builders, namely s 41(2) of the Builders' Registration Act 1939 (WA) - s 41(2), leave to bring a review is not required from this Tribunal: see s 18 of the PR Act. 21 To the extent that Allen and Guerinoni [2007] WASAT 253; (2007) 57 SR (WA) 66 suggests otherwise, it was wrongly decided. 22 The review is de novo, that is, afresh, and in all of the particular circumstances of this review where the painter could not attend the Tribunal in person (or arrange representation) for either the directions or the final hearing (because of an illness), the Tribunal both declined to order the production of formal reasons from the PRB, and conducted this review on the documents and written submissions. 23 These procedural matters were determined by orders of this Tribunal made in early April 2010, including orders for the refusal of an application for a stay of the order to pay.
The evidence 24 As the PRB's order, set out above, indicates, the principal, independent and uncontradicted evidence before the PRB - and indeed before this Tribunal - was the written assessment of the subject premises in December 2009 by Inspector Glendenning. 25 This report identified four matters. In summary, they were as follows. 26 First, there was noticed the poor preparation and lack of completion of painting on internal walls. Secondly, similar complaints were made out in respect of the closet walls and ceilings. Thirdly, broadly similar complaints were made out concerning the internal doors and frames. Fourthly, problems with certain timber cappings were identified. 27 The actions recommended for the rectification of all of these complaints were as follows: proper preparation, then fill and repainting, as may have been appropriate. (Page 7)
28 The original complaint by the respondent owner to the PRB was, as I have mentioned, specifically not about paint colours and only about workmanship: see the owner's complaint document, at 2. 29 The painter originally quoted $4,300 for preparation and painting of surfaces, ceilings, walls and the doorframes. For work to the standard described in the Inspector's report, to which I have referred above, the painter was nevertheless, apparently, paid in full, as per this quote. 30 The defence of the painter on this review was, in effect, to admit that there was further work to be done. Indeed, he says: '[Or] I can pay' - that is, pay to the respondent owner - 'the remaining amount for the week of work that was left[,] which would be $1[,]250'. 31 Also, the painter alleges that the job was cancelled three quarters of the way through and therefore that was the reason that there was in existence unfinished work.
Discussion of the case 32 I have concentrated on this review on the uncontradicted Inspector's evidence of the defects identified. The subsidiary complaints of spilled paint and other minor damage I have disregarded, as the Inspector's report sets out the main issues of concern (see above). The respondent owner relies upon the Inspector's report and also relies upon the PRB's, in effect, industry-based assessment of what would be a reasonable amount of just over $3,000 to rectify the problems identified in that report. 33 At this point, I need to make a number of further observations about the consumer protection standards applicable in this jurisdiction and the nature of any review. 34 First, just as this Tribunal is not reviewing the PRB's processes (see above), we are also not dealing with any contractual disputes, if there be any, between the parties. The contract between the parties is, of course, part of the factual matrix of the case and will, generally speaking, influence the appropriate standard of finish and the like, but it is not necessarily determinative of the appropriate consumer protection standard to be applied in each case. 35 Secondly, and concomitantly, the relevant issue to be determined will be: Is there evidence of unsatisfactory workmanship at the relevant time, that is, work which has not been carried out in a 'proper and workmanlike manner'? (Page 8)
36 Plainly, in this case, there was evidence of unsatisfactory workmanship. 37 Thirdly, if there is found to be unsatisfactory workmanship, the final issue that arises will be: What is a reasonable remedy under the governing statute? 38 Only two remedies are available: an order to pay or an order to remedy. Here, as already indicated, the applicant painter wishes to remedy, if that is practicable, or, alternatively, to pay only $1,250. 39 An order to remedy would be completely impractical in this case. This is for three reasons. 40 First of all, there is the obvious break-down in the relationship between the parties, noticed by the Tribunal during the proceedings. Secondly, there is the current, and apparently debilitating, illness suffered by the painter. However, most importantly, there would be the difficulty of arranging access to the subject premises, which have now been sold.
The order to pay 41 This inevitably leaves, and only leaves, as a remedy an order to pay. 42 The painter says $1,250 is a reasonable sum. The PRB in its expert and industry-based assessment, found the sum of $3,025 reasonable. This Tribunal is entitled to have regard to this assessment by the PRB and to its context. 43 I have also had regard to both the original contract price, the work that would be needed for rectification, and the amount submitted by the painter as reasonable. 44 Taking all these matters into account, I find that the sum of $3,025 is a reasonable sum and well within the experience of this Tribunal in respect of such cases. The order to pay should be confirmed.
Conclusion and orders 45 For all of those reasons, the orders of the Tribunal are as follows: 1. The application for a review of the Painters' Registration Board decision dated 10 February 2010 (order to pay No 6/2010) is dismissed, for the reasons given on 13 August 2010. (Page 9)
2. Consequently, the decision under review is affirmed. |