J Corp Pty Ltd and Chudy & Anor - [2008] WASAT 79

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: BUILDERS' REGISTRATION ACT 1939 (WA)

CITATION: J CORP PTY LTD and CHUDY & ANOR [2008] WASAT 79

MEMBER: MR C RAYMOND (SENIOR MEMBER)

HEARD: 15 OCTOBER 2007

DELIVERED : 10 APRIL 2008

FILE NO/S: CC 413 of 2007

BETWEEN: J CORP PTY LTD
Applicant
AND
JOZEF CHUDY
SHIMI MARIA CHUDY
Respondents

Catchwords:

Application for leave to review decision of Building Disputes Tribunal - Whether Building Disputes Tribunal acted within jurisdiction - Whether factual findings open on evidence - Duty to mitigate - Whether substantial injustice would result from refusal of leave

Legislation:

Builders' Registration Act 1939 (WA), s 36, s 41
Home Building Contracts Act 1991 (WA), s 16

(Page 2)

Result:

Application for leave to review refused
Application dismissed

Category: B

Representation:

Counsel:

Applicant: Mr A MacPherson
Respondents : Mr R Shaw

Solicitors:

Applicant: Hotchkin Hanley
Respondents : Lavan Legal

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

Commodore Homes (WA) Pty Ltd v Standley [2001] WADC 89
DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423
Harling v Eddy [1951] 2 KB 739
Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26
Pearce & Anor and Germain [2006] WASAT 305
Tangent Nominees Pty Ltd and Edwards & Anor [2005] WASAT 119
Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd [1938] 38 SR (NSW) 632
Watson v Wallington [1999] WADC 84
Weher v Thom [1969] WAR 39

(Page 3)

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 under s 41 of the Builders' Registration Act 1939 (WA).
The proposed grounds for review raised four principal issues for determination.
Firstly, whether the Building Disputes Tribunal had jurisdiction in relation to an estoppel asserted by the respondents. The Tribunal concurred with the decision of the Building Disputes Tribunal in terms of which the estoppel was characterised as common law estoppel, which consequently did not call into question the Building Disputes Tribunal's jurisdiction.
Secondly, whether particular factual findings upon which the decision was founded were wrong. The Tribunal examined each of the findings and found in all but one finding that it had not been demonstrated that the decision of the Building Disputes Tribunal was wrong or attended with sufficient doubt. Although the Building Disputes Tribunal had erred in finding that the builder should have paid a licence fee to the copyright owner of a design adapted by the builder, the Tribunal found that the finding was not essential to the Disputes Tribunal's overall conclusion.
Thirdly, whether the Building Disputes Tribunal erred in relation to the basis upon which it had found that the applicant made the relevant representation because of specific provisions in the contract whereby the respondents warranted that any plans constituting part of the contract did not infringe intellectual property of any third party and further, that they had not relied on any representation,…

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: [2008] WASAT 79
Decision Date: 10 APRIL 2008

CaseChat Overview and Summary

The applicant, J Corp Pty Ltd, sought leave to review a decision made by the Building Disputes Tribunal, with Chudy and another party as respondents. The underlying dispute involved a contractual disagreement related to construction work, where the Tribunal ruled in favour of the respondents. J Corp challenged the Tribunal's jurisdiction, factual findings, and the application of the duty to mitigate, arguing that the Tribunal's decision caused substantial injustice.

The court was required to determine whether the Tribunal acted within its jurisdiction, if the factual findings were supported by the evidence, and whether the duty to mitigate applied. Additionally, the court needed to assess whether denying leave to review would result in substantial injustice. The central issue was whether the Tribunal's decision was legally sound and whether there were grounds for the applicant to seek further judicial review.

The court found that the Tribunal had acted within its jurisdiction and that the factual findings were supported by the evidence. The duty to mitigate was appropriately applied, and there was no substantial injustice that would result from refusing leave to review. The Tribunal's decision was considered legally sound and there were no grounds for further judicial review. Therefore, the application for leave to review was dismissed, and the decision of the Building Disputes Tribunal was upheld.

Orders

Orders of the court

1. The applicant is refused leave to review the decision of the Building Disputes Tribunal made on 22 February 2007. 2. The application for leave to review the said decision is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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