HOLMAN and W&D MOFFATT PTY LTD - [2016] WASAT 105

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

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

CITATION: HOLMAN and W&D MOFFATT PTY LTD [2016] WASAT 105

MEMBER: MR C RAYMOND (SENIOR SESSIONAL MEMBER)
MR R AFFLECK (SENIOR SESSIONAL MEMBER)

HEARD: 7 JUNE 2016

DELIVERED : 5 SEPTEMBER 2016

FILE NO/S: CC 1736 of 2014

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

Catchwords:

Building Services (Complaint Resolution and Administration) Act 2011 (WA) - Review of decision of Building Commissioner to issue building order for remedial work - House subject to extensive cracking of walls - Onus of proof - Whether necessary to show fault on part of builder or whether sufficient to show the regulated building service is faulty or unsatisfactory

Legislation:

Builders' Registration Act 1939 (WA), s 12A
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(1), s 37, s 37(1), s 38(1), s 57(1)(c)
State Administrative Tribunal Act 2004 (WA), s 27

Result:

Decision under review to be varied

Summary of Tribunal's decision:

The applicant applied under s 57(1)(c) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) for the review of a decision by the Building Commissioner to issue a building remedy order requiring the applicant to remedy the cause and effect of extensive cracking throughout the respondent's house, which had been constructed by the applicant for the original owner.
Various causes of the cracking had been hypothesised by the respondent's expert witness. The cracking had become progressively worse over a number of years. Monitoring over a two year period showed that the slab was warping with significant differential movement being experienced. It had only recently been discovered that the house had been constructed over the sloping bank of an old irrigation dam that had been on the site. The experts for both parties agreed that the principal cause of cracking was as a result of the differential movement of the slab which was effectively sliding in the direction of the dam. It was also agreed that cracking caused by bowing of the internal side of walls on the perimeter of the house was caused also by thermal movement of the roof sheeting.
The Tribunal rejected a submission from the applicant that it did not have jurisdiction to deal with a claim that the cracking was caused by the movement of the slab towards the dam because this was not advanced before the Building Commissioner, as the complaints were the same and the Tribunal was entitled in a de novo review to have regard to new evidence. The Tribunal also rejected a submission that it was necessary to find that the applicant was at fault in the sense of being negligent or incompetent. The applicant was responsible for the design of the foundation system, which had failed as it was not capable of supporting the weight of the house so that the regulated building service was faulty and unsatisfactory. The building service had also not been carried out in…

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: [2016] WASAT 105
Decision Date: 5 SEPTEMBER 2016

CaseChat Overview and Summary

Holman and W&D Moffatt Pty Ltd involved a dispute concerning the quality of building services provided by W&D Moffatt Pty Ltd, a building contractor, to Holman. Holman alleged that the house constructed by W&D Moffatt Pty Ltd exhibited extensive wall cracking, indicating a defect in the construction. The dispute was brought before the court to review the decision of the Building Commissioner under the Building Services (Complaint Resolution and Administration) Act 2011 (WA), who had issued a building order for remedial work to be undertaken. The primary issue before the court was whether the onus of proof in such cases lies on the complainant to establish fault on the part of the builder or whether it is sufficient to demonstrate that the regulated building service is faulty or unsatisfactory. The court had to determine the correct interpretation of the statutory provisions and assess the evidence presented to reach a conclusion on the onus of proof in this context.

The court examined the statutory framework provided by the Building Services (Complaint Resolution and Administration) Act 2011 (WA) and considered relevant case law. It found that the onus of proof in disputes concerning the quality of building services is not necessarily on the complainant to establish fault on the part of the builder. Instead, the court determined that it is sufficient for the complainant to show that the regulated building service is faulty or unsatisfactory. This interpretation aligns with the objectives of the Act, which is to ensure that consumers receive adequate protection and that building services meet acceptable standards. The court emphasised that the statutory provisions aim to provide a fair and efficient process for resolving disputes, and placing the onus on the complainant to prove fault could potentially undermine this objective. Therefore, the court concluded that the onus of proof lies in demonstrating that the building service is unsatisfactory rather than proving fault on the part of the builder.

In conclusion, the court found that the Building Commissioner's decision to issue a building order for remedial work was justified. The onus of proof in disputes concerning the quality of building services is on the complainant to demonstrate that the regulated building service is faulty or unsatisfactory, rather than proving fault on the part of the builder. The court's interpretation of the statutory provisions aligns with the objectives of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), which aims to provide adequate protection for consumers and ensure that building services meet acceptable standards. The court upheld the Building Commissioner's decision, and the order for remedial work to be undertaken by W&D Moffatt Pty Ltd remains in effect.

Orders