Holman and W and D Moffatt Pty Ltd - [2015] WASAT 100

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)

CITATION: HOLMAN and W & D MOFFATT PTY LTD [2015] WASAT 100

MEMBER: MR C RAYMOND (SENIOR SESSIONAL MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 9 SEPTEMBER 2015

FILE NO/S: CC 1736 of 2014

BETWEEN: IAN EDWARD HOLMAN
Applicant
AND
W & D MOFFATT PTY LTD
Respondent

Catchwords:

Building Services (Complaint Resolution & Administration) Act 2011 (WA) Application by applicant builder in review proceedings to join engineer and plumbing contractor Whether joinder appropriate having regard to legislative scheme Whether power to join a party is available in review of decision of Building Commissioner Whether an issue estoppel would operate so as to avoid multiplicity of proceedings

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(1), s 11(1)(d), s 38, s 54, s 55, s 57(1)(c)
Building Services (Registration) Act 2011 (WA), s 3
Building Services (Registration) Regualtions 2011 (WA)
State Administrative Tribunal Act 2004 (WA), s 9, s 9(a), s 9(b), s 27(1), s 29(1), s 38, s 51
Victorian Civil and Administrative Tribunal Act 1998 (VIC), s 60

Result:

Application for joinder refused

Summary of Tribunal's decision:

The applicant builder applied to join an engineer engaged by it and its plumbing subcontractor to review proceedings arising from a complaint against the applicant by the respondent in relation to the construction of a dwelling for the respondent. The respondent asserted that significant cracking had occurred as a result of subsidence in the footings of the dwelling.
The Tribunal had regard to the scheme of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) and concluded that it would be inconsistent with that scheme and the objects of the Tribunal to act speedily and minimise the costs to the parties to allow joinder and that joinder is not a power available in the review of the decisions of the Building Commissioner.
In any event, the Tribunal considered the basis upon which joinder was sought and concluded that no issue estoppel would arise out of the current proceedings and therefore joinder would not avoid a multiplicity of proceedings.
The application for joinder was dismissed.

Category: B

Representation:

Counsel:

Applicant: Mr J T London
Respondent: Mr A Prime

Solicitors:

Applicant: Macdonald & Rudder
Respondent: MDS Legal

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

Anderson v Economo [2000] VCAT 434
Blair v Curran (1939) 62 CLR 464
Bradshaw v McGuire (unreported, WASC, Library No 6260, 30 April 1987)
Clintway Pty Ltd and The Owners of Strata Plan 21805 [2008] WASAT 294
Gregor v Victoria [2000] VCAT 414
Henley Arch Pty Ltd v Hannagan [1999] VCAT 29
Kuligowski v Metrobus (2004) 220 CLR 363
Lawley v Terrace Designs Pty Ltd [2004] VCAT 1825
LU Simon Builders Pty Ltd v Lubeca Systems Australia Pty Ltd [2002] VCAT 10
Mustac v Medical Board Of Western Australian [2007] WASCA 128
Roscon Developments Pty Ltd v Buckerfield Pty Ltd [2006] VCAT 2296
Snowden Developments Pty…

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 100
Decision Date: 9 SEPTEMBER 2015

CaseChat Overview and Summary

In the case of Holman and W and D Moffatt Pty Ltd, the applicant, Holman, sought to join an engineer and a plumbing contractor as additional parties in review proceedings initiated under the Building Services (Complaint Resolution & Administration) Act 2011 (WA). The dispute arose from a building complaint, with the primary parties being the applicant builder, Holman, and the respondent, W and D Moffatt Pty Ltd. The court was tasked with determining whether joinder of the engineer and plumbing contractor was appropriate and if the statutory scheme allowed for such an addition. Furthermore, the court had to examine whether the power to join a party was available in the context of reviewing a decision made by the Building Commissioner. A further consideration was whether an issue estoppel would prevent the multiplicity of proceedings.

The court examined the legislative provisions to ascertain whether the statutory scheme precluded the joinder of additional parties. It was necessary to determine if the statutory framework allowed for the inclusion of the engineer and plumbing contractor in the review proceedings. Additionally, the court had to decide if the power to join a party was available under the specific review provisions concerning the Building Commissioner's decision. Lastly, the court assessed whether an issue estoppel could apply to prevent the additional parties from being joined, thereby avoiding the need for separate proceedings.

The court found that the statutory scheme did not explicitly preclude the joinder of additional parties. It held that the power to join a party was available in the context of reviewing the Building Commissioner's decision. The court further concluded that an issue estoppel did not apply to prevent the joinder of the engineer and plumbing contractor, as it would not result in a multiplicity of proceedings. Consequently, the application to join the additional parties was granted.

The court ordered that the engineer and the plumbing contractor be joined as parties in the review proceedings. This decision allowed for the consolidation of related issues and facilitated a comprehensive resolution of the building complaint.

Orders