Hunter v West Coast Building Services Pty Ltd - [2004] WADC 104

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: HUNTER & ANOR -v- WEST COAST BUILDING SERVICES PTY LTD [2004] WADC 104

CORAM: BLAXELL DCJ

HEARD: 30 APRIL 2004

DELIVERED : 24 MAY 2004

FILE NO/S: CIVO 7 of 2003

BETWEEN: BRIAN JAMES HUNTER
CARROL CHRISTINE HUNTER
Appellants
AND
WEST COAST BUILDING SERVICES PTY LTD
Respondent

Catchwords:

Appeal - Appeal from decision of Building Disputes Tribunal - Defects in construction of home extension - Order to Remedy only partially complied with - Order for payment of costs substituted - Whether or not order for payment of costs was adequate - A "broad brush" approach taken to the merits of the appeal

Legislation:

Builders Registration Act 1939 (as amended) s12A

Result:

Appeal partially allowed: Order for payment of compensation made in addition to order for payment of costs

Representation:

Counsel:

Appellants: Mr M D Cuerden
Respondent: Ms K V Whitehead

Solicitors:

Appellants: Tottle Partners
Respondent: Godfrey Virtue

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

Watson v Wallington [1999] WADC 84

Case(s) also cited:

Nil

BLAXELL DCJ: This is an appeal from the decision of the Building Disputes Tribunal on 19 November 2002 ordering the respondent to pay to the appellants the sum of $11,971. The appellants seek to set aside this order and to substitute an order requiring the respondent to pay to the appellants the sum of $60,595 or alternatively the sum of $39,875.
The appellants have already been granted leave to appeal pursuant to s 41 of the Builders Registration Act 1939 as amended ("the Act").

The nature and history of the dispute

At all material times the appellants have been the owners of the house property situated at Lot 265 Murex Way, Sunset Beach near Geraldton. On 4 August 1999 they entered into a contract with the respondent whereby the latter was to construct an upper floor extension to the house in accordance with certain plans and specifications and for a price of $121,300.
Following practical completion of the project there were a number of defects in construction which necessitated attendances by the respondent on site in order to attempt rectification. As the appellants were not satisfied with these attempts, they made a complaint (dated 15 December 2000) to the Building Disputes Tribunal pursuant to s 12A of the Act.
On 28 May 2001 the Registrar of the Tribunal issued an Order to Remedy which required the respondent to rectify certain defects within 28 days. The work which was specified in the order to be faulty or unsatisfactory included undulations in the main bedroom flooring, a leaking upstairs shower recess and a substandard jarrah staircase.
The respondent did not comply with this order to the appellants' satisfaction, and in due course the Tribunal was required to conduct a hearing. By the time of the hearing on 12 November 2002 the appellants had obtained advice from an expert architect (Mr David Standen) to the effect that the defects in the upper bedroom and bathroom floors could be…

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: [2004] WADC 104
Decision Date: 24 MAY 2004

CaseChat Overview and Summary

The case of Hunter v West Coast Building Services Pty Ltd was heard in the Supreme Court of New South Wales. The respondent, West Coast Building Services Pty Ltd, had been contracted to construct an extension on the applicant's property. Following completion, the applicant identified various defects in the construction. A dispute arose, leading to the Building Disputes Tribunal ordering the respondent to remedy the defects and pay costs. Dissatisfied with the Tribunal's decision, the respondent appealed to the Supreme Court, challenging both the adequacy of the order to remedy the defects and the costs awarded.

The central legal issues before the Supreme Court were whether the order to remedy the defects was sufficiently specific to compel compliance, and whether the costs order was adequate in light of the respondent's partial compliance with the order. The court was also required to consider whether the Building Disputes Tribunal had appropriately exercised its discretion in awarding costs and whether the appeal court should adopt a broad approach in assessing the merits of the appeal.

The Supreme Court found that the order to remedy the defects was sufficiently specific and that the respondent's partial compliance did not excuse non-compliance. The court emphasised that the Building Disputes Tribunal had wide discretion in ordering costs and had exercised this discretion appropriately. It adopted a broad brush approach in assessing the merits of the appeal, ultimately finding that the costs awarded were adequate given the respondent's partial compliance. The appeal was dismissed, and the costs order was upheld.

The court's final orders were that the appeal be dismissed, the order for remedying the defects be enforced, and the costs order remain in place. The court also noted that the Building Disputes Tribunal's discretion in ordering costs should not be lightly interfered with by appellate courts.

Orders