J-CORP PTY LTD and LY & ANOR [2006] WASAT 132

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2006] WASAT 132
Act:	BUILDERS' REGISTRATION ACT 1939 (WA)
Case No:	CC:3106/2005	Heard:	16 JANUARY 2006
Coram:	MR C RAYMOND (SENIOR MEMBER)	Delivered:	24/05/06
No of pages:	16	Judgment Part:	1 of 1
Result:	Application for leave granted
Category:	B
PDF Version

Parties:	J-CORP PTY LTD VO LY SAI GHET DUONG
Catchwords:	Application for leave to review and review Whether obligation to construct in a proper and workmanlike manner requires dwelling to withstand site conditions Whether risk of site conditions lie with proprietors
Legislation:	Builders' Registration Act 1939 (WA), s 12A, s 12A(1), s 38(3), s 41, s 41(2) Home Building Contracts Act 1991 (WA), s 15, s 17
Case References:	Mansal Pty Ltd v Brokenshire (Unreported, Supreme Court of Western Australia; 3 December 1982) Tangent Nominees Pty Ltd and Edwards & Anor [2005] WASAT 119 Tangent Nominees Pty Ltd v Edwards & Anor [2006] WASC 45 Australian Broadcasting Commission v Australasian Performing Right Association Limited (1973) 129 CLR 99 Basildon DC v JE Lesser (Properties) Ltd (1985) 1 All ER 20 Bilek v Vata Investments Pty Ltd [2005] WASAT 153 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1981 – 1982) 149 CLR 337 Goldfields Homes Pty Ltd v Blacker (1999) 23 SR (WA) 75 Hide & Skin Trading Pty Ltd v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310 Ownit Homes Pty Ltd v Batchelor (1983) 2 Qd R 124 Shepperd v Ryde Corp (1952) 85 CLR 1 Wilson v Metaxas [1989] WAR 285 Wing Luck Foods v Lay Choo Lim [1989] WAR 358
Orders	On the application heard before Senior Member Clive Raymond on 24 May 2006, it is ordered that:,1. The minute of proposed amended grounds of appeal filed on 5 January 2006 stands as the amended grounds of review and further service thereof is dispensed with.,2. Leave is granted to the applicant to review the decision of the Building Disputes Tribunal reflected in Order to Remedy No 60/2005-06 dated 3 August 2005 in relation to grounds of review 2 and 3;,3. The costs of the application for leave, if any costs may ultimately be awarded, be reserved.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : BUILDERS' REGISTRATION ACT 1939 (WA) CITATION : J-CORP PTY LTD and LY & ANOR [2006] WASAT 132 MEMBER : MR C RAYMOND (SENIOR MEMBER) HEARD : 16 JANUARY 2006 DELIVERED : 24 MAY 2006 FILE NO/S : CC 3106 of 2005 BETWEEN : J-CORP PTY LTD

Applicant

AND

VO LY

SAI GHET DUONG

Respondents

Catchwords:

Application for leave to review and review Whether obligation to construct in a proper and workmanlike manner requires dwelling to withstand site conditions Whether risk of site conditions lie with proprietors

Legislation:

Builders' Registration Act 1939 (WA), s 12A, s 12A(1), s 38(3), s 41, s 41(2)

Home Building Contracts Act 1991 (WA), s 15, s 17

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: [2006] WASAT 132
Decision Date: 24 MAY 2006

CaseChat Overview and Summary

The applicant, J-CORP Pty Ltd, sought leave to review and review a decision of the Building Disputes Tribunal in relation to a dispute concerning the construction of a dwelling. The dispute arose from an obligation under a building contract to construct the dwelling in a proper and workmanlike manner, with the applicants arguing that this did not require the dwelling to withstand certain site conditions, and that the risk of such conditions lay with the proprietors. The case was heard before Senior Member Clive Raymond.

The legal issues before the court included whether the obligation to construct in a proper and workmanlike manner required the dwelling to withstand the site conditions, and whether the risk of such site conditions lay with the proprietors. The court had to determine whether the applicants' argument that the obligation did not include withstanding the site conditions was legally sound, and whether the proprietors bore the risk of such conditions.

In its reasoning, the court found that the applicants' argument that the obligation did not include withstanding the site conditions was not supported by the evidence. The court held that the obligation to construct in a proper and workmanlike manner did require the dwelling to withstand the site conditions, and that the risk of such conditions lay with the proprietors. Accordingly, the court granted leave to the applicant to review the decision of the Building Disputes Tribunal in relation to certain grounds of review.

The final orders of the court were that the minute of proposed amended grounds of appeal filed on 5 January 2006 stands as the amended grounds of review, leave is granted to the applicant to review the decision of the Building Disputes Tribunal, and the costs of the application for leave, if any costs may ultimately be awarded, be reserved.

Orders

Orders of the court

On the application heard before Senior Member Clive Raymond on 24 May 2006, it is ordered that: 1. The minute of proposed amended grounds of appeal filed on 5 January 2006 stands as the amended grounds of review and further service thereof is dispensed with. 2. Leave is granted to the applicant to review the decision of the Building Disputes Tribunal reflected in Order to Remedy No 60/2005-06 dated 3 August 2005 in relation to grounds of review 2 and 3; 3. The costs of the application for leave, if any costs may ultimately be awarded, be reserved.

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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