J-CORP PTY LTD and MCCUTCHEON
[2025] WASAT 121
•3 NOVEMBER 2025
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION: J-CORP PTY LTD and MCCUTCHEON [2025] WASAT 121
MEMBER: JUDGE F VERNON, DEPUTY PRESIDENT
HEARD: 15 SEPTEMBER 2025
DELIVERED : 18 SEPTEMBER 2025
PUBLISHED : 3 NOVEMBER 2025
FILE NO/S: CC 430 of 2025
BETWEEN: J-CORP PTY LTD
Applicant
AND
JANICE MCCUTCHEON
First Respondent
GRAEME MCCARTHY
Second Respondent
BUILDING COMMISSIONER
Third Respondent
ATTORNEY GENERAL OF WESTERN AUSTRALIA
Intervenor
Catchwords:
Interlocutory application - Application for a stay of the operation of a building remedy order - Application to adjourn review proceedings while Supreme Court proceedings are on foot
Legislation:
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5(1), s 36(1), s 36(1)(a), s 37, s 57(1)(c), s 86(j), s 91(1)
Commonwealth of Australia Constitution Act 1901 (Cth), s 75, s 76, s 77
Competition and Consumer Act 2010 (Cth)
Rules of the Supreme Court 1971 (WA), O 56, r 5(4)
State Administrative Tribunal Act 2004 (WA), s 9(a), s 9(b), s 25(2), s 25(4), s 25(6)(a), s 27(1), s 27(2), s 29, s 32(5), s 32(7)(e), s 46(3), s 76
Result:
Application for a stay of the operation of a building remedy order granted upon provision of an undertaking
Application for an adjournment of the proceedings dismissed
Programming orders made
Category: B
Representation:
Counsel:
| Applicant | : | Mr M Sims SC and Mr L Swanson |
| First Respondent | : | In Person |
| Second Respondent | : | No appearance |
| Third Respondent | : | Ms J Shaw SC |
| Intervenor | : | Ms J Shaw SC |
Solicitors:
| Applicant | : | Hotchkin Hanly |
| First Respondent | : | N/A |
| Second Respondent | : | N/A |
| Third Respondent | : | State Solicitor's Office |
| Intervenor | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307
Dobson and Legal Practice Board of Western Australia [2022] WASAT 80
Forrest & Forrest Pty Ltd v Minister for Aboriginal Affairs [2024] WASCA 96
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250; [2019] HCA 16
Hanssen Pty Ltd v Owners of Strata Plan 58161 [2024] WASCA 87
Legal Profession Complaints Committee and Rayney [2016] WASAT 142
Nugawela and Medical Board of Australia [2023] WASAT 82
Owners of Strata Plan 58161 and Hanssen Pty Ltd [2022] WASAT 77
PAG (WA) Pty Ltd v Commissioner for Consumer Protection [2018] WASAT 57
SH v Chief Executive Officer of Department of Communities [2019] WASCA 31
Soutorine and The Medical Board of Australia [2020] WASAT 5
Western Australian Planning Commission and Coogee General Store Pty Ltd [2007] WASAT 182
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
By an application dated 27 June 2025, J-Corp Pty Ltd (applicant) applied for review of a Building Remedy Order (a BRO) made on 30 May 2025 under s 37 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (Building Services Act) by a delegate of the Building Commissioner in relation to a house owned by Janice McCutcheon and Graeme McCarthy (respondents), being BRO O2024-0979 (the BRO).
The BRO requires the applicant, amongst other things, to conduct a full home re-pipe of Typlex piping that the applicant installed in the respondents' house.
The pipes installed in the respondents' house are given various names in the documents before me, including Typlex, Pro-Fit, and Iplex pipes. In these reasons I will call them 'the pipes'.
The applicant is a company in the BGC group of companies (BGC Group).
By an application dated 1 August 2025, the applicant applied for interlocutory orders:
(a)staying the operation of the BRO pending further order of the Tribunal, pursuant to s 25(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act); and
(b)adjourning the proceedings pending further order of the Tribunal, pursuant to s 32(5) or, alternatively, s 32(7)(e) of the SAT Act;
(together, the applications).
The applications were heard at the same time as identical applications in three other matters,[1] each concerning a BRO in similar terms to the BRO requiring another company in the BGC Group, Ventura Home Group Pty Ltd (Ventura), to conduct a full home re-pipe (amongst other things) of houses owned by each of the respondents in those proceedings. Separate reasons will be delivered in those matters, referring to these reasons, given the overlap of the issues in each matter.
[1] Ventura Home Group Pty Ltd and Simon Bosnich & Ors, CC 459 of 2025; Ventura Home Group Pty Ltd and Timothy Cox & Ors, CC 462 of 2025; Ventura Home Group Pty Ltd and Jamie Wright & Ors, CC 480 of 2025 (Ventura Home Group and Wright proceedings).
The principal basis on which the stay was sought was to ensure that the applicant is not required to carry out the work required under the BRO before the proceedings for review of the decision to make the BRO (review proceedings) have been determined.
The adjournment was sought to delay the review proceedings until determination of Ventura's application in the Supreme Court, commenced on 13 June 2025, for judicial review of the decision of a delegate of the Building Commissioner to make a BRO relating to the pipes installed in a house that is not the subject of any of the four applications before me (Supreme Court proceedings).
The respondents and the intervenor opposed the application for an adjournment. The respondents also opposed the application for a stay. The intervenor did not oppose the stay.
On 18 September 2025, I decided to make orders in the terms set out at the conclusion of these reasons (Orders), in summary, to:
(a)grant the application to stay the operation of the BRO until further order of the Tribunal, upon the applicant providing the respondents with an undertaking as to damages in the form set out in the Orders;
(b)refuse the application for an adjournment of the review proceedings; and
(c)program the review proceedings to a direction hearing to progress the matter to a hearing.
On 18 September 2025, I said that I would produce written reasons for my decision to make the Orders. These are those reasons.
Evidence
In determining the applications, I have had reference to the following affidavits:
(a)the affidavit of Adam Casotti sworn 1 August 2025. Mr Casotti is a registered building contractor and an employee of BGC Group involved in the managing, investigating and coordinating of BGC Group's response to plumbing failures relating to the pipes;
(b)the affidavits of Luke Swanson sworn 1 August 2025 and 22 August 2025. Mr Swanson is a partner of the firm of lawyers acting for the applicant;
(c)the affidavit of the first respondent, Janice McCutcheon, affirmed on 7 September 2025;
(d)the affidavit of Lilly Deluca affirmed on 11 September 2025. Ms Deluca is a lawyer employed by the firm of lawyers acting for the applicant; and
(e)the affidavit of Aleksandra Miller affirmed on 12 September 2025. Ms Miller is a lawyer employed by the State Solicitor's Office, acting for the intervenor.
In addition, I have had reference to an amended application in the Supreme Court proceedings dated 8 August 2025, which is attached[2] to Mr Swanson's affidavit dated 18 August 2025, filed in one of the other three proceedings.[3]
[2] LFS-12.
[3] Ventura Home Group and Wright proceedings.
Legal Principles
Stay of the Building Remedy Order
Section 25(2) of the SAT Act provides that I may make an order staying the operation of a decision that is the subject of a proceeding for review. Section 25(4) of the SAT Act provides that I may make that order only if I consider that it is desirable to do so after taking into account the interests of any person whose interests may be affected by the order, any submissions made by the decision-maker, and the public interest.
The decision-maker, namely the delegate of the Building Commissioner, has not made any submissions in relation to the applications.
Section 25(6)(a) of the SAT Act provides that, in making an order for a stay, I may require any undertaking as to costs or damages that I consider appropriate. At the hearing on 15 September 2025, the applicant's counsel provided a form of wording for an undertaking and said that the applicant did not oppose my requiring an undertaking if I considered it appropriate.
The principles for the exercise of a stay are summarised in Dobson and Legal Practice Board of Western Australia,[4] referring to the decision in Soutorine and the Medical Board of Australia[5] (Soutorine). I adopt what was said in those paragraphs, as follows:
[4] Dobson and Legal Practice Board of Western Australia [2022] WASAT 80 [57] to [58].
[5] Soutorine and The Medical Board of Australia [2020] WASAT 5 (Soutorine) [24] to [28].
57In Soutorine, Tottle J, sitting as Supplementary President of the Tribunal, was concerned with a decision by the Medical Board of Australia to take 'immediate action' to suspend Dr Soutorine's registration as a medical practitioner. His Honour enunciated the following principles, which have since been repeated and applied:
a)s 25 of the SAT Act provides the Tribunal with a wide discretion to grant a stay that must be exercised judicially;
b)any analysis of that discretion must begin with the terms of the statute, particularly s 25(4) of the SAT Act;
c)care must be taken in looking for guidance to:
i)jurisdictions with a different statutory basis for the power to grant a stay; and
ii)decisions concerned with the exercise of discretion to grant a stay in curial proceedings. In particular, where a stay application is brought within an application to review an administrative decision, a regulatory decision-making authority is not to be equated with the 'successful party' following a contest and determination;
d)s 25(4) of the SAT Act does not exhaustively list the matters relevant to the Tribunal's consideration; and
e)neither party bears an onus of persuading the Tribunal to grant a stay or not.
58As noted above, one of the matters for which regard must be had in an application under s 25(4) of the SAT Act is the public interest. The 'public interest' in a particular case must be understood within its statutory context … (citations omitted)
In PAG (WA) Pty Ltd and Commissioner for Consumer Protection,[6] Curthoys J said:
… the analogy with a stay pending appeal is not helpful. An appeal is premised on a decision after a hearing. The Commissioner is not the 'successful party' in any sense compared to a party who is successful after contested proceedings.
[6] PAG (WA) Pty Ltd and Commissioner for Consumer Protection [2018] WASAT 57 [25].
The respondents submitted that I should treat the stay application as analogous to a stay in curial proceedings, such that I should be satisfied that there are exceptional circumstances to justify the grant of a stay. The reference to curial proceedings is a reference to appeal proceedings from a judgment arrived at after trial. In making that submission, the respondents sought to distinguish this matter from Nugawela and Medical Board of Australia[7] (Nugawela), relying on their personal interest in the remedial work being carried out. The respondents also submitted that a presumption of correctness should apply to the decision to make the BRO.
[7] Nugawela and Medical Board of Australia [2023] WASAT 82 (Nugawela).
I accept that the respondents have a personal interest in the work specified in the BRO being performed, which the regulatory board in Nugawela did not have in the proceedings the subject of that decision. However, in my view, the process leading to the making of the BRO is not the equivalent of a judgment of a court after a contested hearing in which both parties lead evidence. On the evidence before me, the applicant was given the opportunity to make written submissions about whether the Building Commissioner (and, therefore, the delegate) had jurisdiction to make the BRO and whether the BRO should be made. In that response, it did not address all the matters now raised on review. The decision to make the BRO was then made on the papers, and on the results of the delegate's own inquiries.
In any event, the basis on which the Tribunal in Nugawela said that a decision of a regulatory authority was not to be equated with a successful party in curial proceedings was because the nature of the proceedings was a review 'de novo', that is afresh,[8] where there is no presumption that the original decision was correct.
[8] Nugawela [28]; State Administrative Tribunal Act 2004 (WA) (SAT Act), s 27(1).
Pritchard J said in Nugawela:[9]
In particular, a decision of a regulatory decision-making authority is not to be equated with a successful party in proceedings in which the issues have been contested and determined by a court or tribunal. That is because in review proceedings, the Tribunal engages in a hearing de novo, in which it determines, on the basis of all of the evidence then before it, what is the correct and preferable decision. The decision under review is not subject to any presumption of correctness. No error need be shown for the decision to be set aside or varied. No party bears any onus of proof. Instead, it is for the Tribunal to review the evidence and make a determination as to the correct and preferable decision as at the date of the determination. In those circumstances, it would not be appropriate to regard the Board as entitled to the benefit, on a stay application, of any presumption that its immediate action decision is the correct and preferable decision, so as to impose a higher threshold for the grant of a stay, over and above the Tribunal forming the view that the grant of a stay is 'desirable' having regard to the matters in s 25(4) of the SAT Act and any other considerations it considers relevant. (citations omitted)
[9] Nugawela [28].
That reasoning is equally applicable in this case.
The comments in Nugawela are consistent with what was said by Buss P in Forrest & Forrest Pty Ltd v Minister for Aboriginal Affairs[10] as follows:
… As Fox, Deane and Morling JJ said in Collins (411), it is 'unsound in determining the correctness of a decision to treat the decision itself as being probative of its own correctness'. In the present case, there was no presumption that the Minister's decision was correct. Accordingly, the Minister's decision did not, in itself, carry any weight.
[10] Forrest & Forrest Pty Ltd v Minister for Aboriginal Affairs [2024] WASCA 96 [58].
There is no basis for presuming the decision of the delegate to make the BRO is correct, or to give the decision itself weight, at an interlocutory stage any more than there is at a final hearing.
In Soutorine, Tottle J said:[11]
60… My assessment is that Dr Soutorine has raised a serious question to be resolved as to whether it is reasonable to believe that a suspension of his registration is necessary to protect public health and safety …
[11] In Souterine, the decisive factor appears to be that the doctor had undertaken not to perform certain procedures which meant that it could not be said it would jeopardise public safety if he was granted a stay: see [64].
Accordingly, I conclude that it is not necessary to show that there are special circumstances warranting the stay, or to be satisfied that the review proceedings have a reasonable prospect of success, in order to justify the grant of a stay under s 25 of the SAT Act. In my view, it is necessary, however, to show that there is a serious question to be resolved or, in other words, an arguable case.
Adjournment of the review proceedings
Section 32(7)(e) of the SAT Act provides that the Tribunal may adjourn a proceeding to any time and place. It is not in dispute that this allows me to make an order adjourning proceedings pending the outcome of Supreme Court proceedings.[12]
[12] Western Australian Planning Commission and Coogee General Store Pty Ltd [2007] WASAT 182 [11].
The relevant considerations in determining whether it is appropriate to adjourn the review proceedings are not prescribed in the SAT Act, but were identified in Owners of Strata Plan 58161 and Hanssen Pty Ltd[13] as follows:
[13] Owners of Strata Plan 58161 and Hanssen Pty Ltd [2022] WASAT 77 [11], [16], [17] and [18].
(a)the reason for the adjournment and any prejudice to the applicant for the adjournment if the hearing is not adjourned;
(b)any prejudice to the other parties to the proceedings if the adjournment is granted;
(c)the effect of the adjournment on the use of the Tribunal's resources;
(d)the impact of delay as a result of the grant of the adjournment; and
(e)the statutory framework within which the discretion falls to be exercised, which include that:
(i)the objectives of the Tribunal are to act as speedily, and with as little formality and technicality, as is practicable;[14]
(ii)the Tribunal is required to achieve resolution of the questions before it fairly;[15] and
(iii)the Tribunal is required to minimise the costs of proceedings to the parties.[16]
Order of consideration
[14] SAT Act, s 9(b).
[15] SAT Act, s 9(a).
[16] SAT Act, s 9(b).
The applicant's counsel submitted that I should determine the application for a stay first and then determine the application for an adjournment, because the decision to grant a stay would have an impact on the assessment of the appropriate approach to the adjournment.[17]
[17] ts 8, 15 September 2025.
There is a considerable degree of overlap in the considerations relevant to each application. Accordingly, it is difficult to approach the matter as the applicant's counsel suggests. In my view, the most appropriate approach is that suggested by the intervenor, which was essentially to consider the applications together.
In light of the relevant factors in relation to both the application for a stay and the application for an adjournment, these reasons proceed with a consideration of the following factors:
(a)the statutory framework;
(b)any prejudice to the applicant if a stay, or an adjournment, is not granted, the latter of which includes consideration of the prospects of success in the Supreme Court proceedings;
(c)any prejudice to the respondents if a stay, or an adjournment, is granted, which includes consideration of the impact of delay;
(d)whether there is a serious question to be determined in the review proceedings;
(e)the public interest;
(f)the impact of an adjournment on the Tribunal's objectives; and
(g)where the balance of convenience lies.
In addition, the respondents allege that the applications are an abuse of process, essentially on the basis that they are for an improper purpose. That issue is addressed at the end of these reasons.
What I say in these reasons should not be construed as findings of fact. In so far as I express views on the relative strength of the parties' positions on various issues, they are not more than preliminary views, based on untested evidence.
Statutory framework
The purpose of the Building Services Act is stated, in the preamble, to be to provide for a system for dealing with complaints about building services, home building work contract matters and disciplinary matters, and to provide for a public officer with functions relating to building services and complaints. One of the Building Commissioner's functions is to deal with complaints made to the Building Commissioner about regulated building services not being carried out in a proper and proficient manner or being faulty or unsatisfactory.[18]
[18] Building Services (Complaint Resolution and Administration) Act 2011 (WA) (Building Services Act), s 5(1) and s 86(j).
The power to make a BRO is set out in s 37 of the Building Services Act as follows:[19]
[19] Section 91(1) of the Building Services Act enables the Building Commissioner to delegate the power under s 37.
(1)Subject to regulations made under section 11(5), if the Building Commissioner is satisfied that a regulated building service that is the subject of a building service complaint has not been carried out in a proper and proficient manner or is faulty or unsatisfactory, the Building Commissioner may deal with the building service complaint by making a building remedy order.
(2)The Building Commissioner cannot make a building remedy order requiring —
(a)work to be done of a value estimated by the Building Commissioner to exceed the prescribed amount; or
(b)an amount exceeding the prescribed amount to be paid,
unless the respondent consents to the order being made.
(3)Unless a greater amount is prescribed by the regulations, in subsection (2) the prescribed amount is $100 000.
(4)The Building Commissioner may make any ancillary or incidental order the Building Commissioner considers appropriate.
A BRO is defined in s 36(1) of the Building Services Act as follows:
(1)A building remedy order consists of one of the following —
(a)an order that a person who carried out a regulated building service remedy the building service as specified in the order;
(b)an order that a person who carried out a regulated building service pay to an aggrieved person such costs of remedying the building service as the Building Commissioner or State Administrative Tribunal, as the case requires, considers reasonable and specifies in the order;
(c)an order that a person who carried out a regulated building service pay to an aggrieved person a sum of money specified in the order to compensate the aggrieved person for the failure to carry out the building service in a proper and proficient manner or for faulty or unsatisfactory building work.
Section 57(1)(c) provides that a person aggrieved by a BRO made by the Building Commissioner may apply to the Tribunal for review of the order.
Under s 29 of the SAT Act, the Tribunal has the same functions and discretions as the Building Commissioner in making the BRO and may affirm or vary the BRO, or set it aside and substitute its own decision, or refer it back to the Building Commissioner to be reconsidered.
In my view, the statutory context is not of particular assistance in resolving either the application for an adjournment or a stay, given the competing interests allowed for under the legislation.
Whilst one of the purposes of the Building Services Act is to provide for a system of resolution of complaints, including by the Building Commissioner issuing BROs, the Building Services Act also allows for those decisions to be reviewed by the Tribunal on the application of an aggrieved person, which includes a person required to do work under a BRO. As has already been noted, there is no presumption that the original decision is correct. The review is not predicated upon the applicant for review proving that the Building Commissioner, or delegate, was in error. The Tribunal is required to consider the matter afresh and make the correct and preferable decision at the time of its decision on review, on the material before it.[20]
[20] SAT Act, s 27(1) and s 27(2).
Prejudice to the applicant if the review proceedings are not adjourned
The applicant says that, if Ventura succeeds in the Supreme Court proceedings, it follows that the delegate did not have jurisdiction to make the BRO. Whilst the applicant and the respondents are not parties to the Supreme Court proceedings, it does not appear to be in dispute that, if Ventura is successful, the practical effect will be to bring the review proceedings to an end.
Accordingly, the applicant submits, in effect, that it should have the benefit of the decision in the Supreme Court proceedings before being required to incur the expense of progressing the review proceedings, and that this is a more efficient use of the Tribunal's resources.
The intervenor submits that there is no serious issue to be tried in the Supreme Court proceedings in light of the decision in Hanssen Pty Ltd v the Owners of Strata Plan 58161[21] (Hanssen). As a result, the intervenor submits that the refusal to adjourn the review proceedings pending determination of the Supreme Court proceedings would not render the review proceedings futile.
[21] Hanssen Pty Ltd v Owners of Strata Plan 58161 [2024] WASCA 87.
Consistent with the intervenor's submission, and for the following reasons, I have formed the view that Ventura has no prospect of success in the Supreme Court proceedings if those proceedings are determined by a single judge of the Supreme Court, and faces significant obstacles to success if those proceedings are determined by the Court of Appeal. This reduces the prospect that any costs spent in the review proceedings will be wasted or that the Tribunal's resources will be wasted in conducting the review proceedings.
Prospects of success in the Supreme Court proceedings
In the Supreme Court proceedings, Ventura seeks a declaration that s 37 of the Building Services Act is invalid to the extent that it purports to authorise the making of a BRO requiring replacement of the pipes Ventura had installed in a house,[22] and that consequentially, the delegate of the Building Commissioner had no jurisdiction to make a BRO in that case.
[22] The owners of which house are not a party to any of the four matters before me.
As I understand it, in the Supreme Court proceedings, Ventura argues, in summary, that:
(a)there are currently two actions on foot in the Federal Court of Australia involving BGC Group companies, the pipes' manufacturer, Iplex Pipelines Australia Pty Ltd (Iplex), and the owners of houses in which the pipes were installed (homeowners);
(b)the scope of the 'matter' in each of the Federal Court actions includes whether the homeowners have claims against BGC Group companies or Iplex in respect of defects in the manufacture, supply, or installation of the pipes;
(c)the decision to make a BRO in relation to the pipes forms part of the 'matter' in the Federal Court actions, and is a 'matter' arising under a law of the Commonwealth Parliament, namely the Competition and Consumer Act 2010 (Cth); and
(d)by reason of s 75, s 76 and s 77 of the Commonwealth Constitution, the Western Australian Parliament cannot confer judicial power in relation to that 'matter' on an entity, namely the Building Commissioner or its delegates, that is not a Court of the State and s 37 of the Building Services Act is invalid to the extent it purports to confer such power.
It is not in dispute that in order to succeed, Ventura must satisfy the Court that the answer to both of the following questions is 'yes':
(a)is the Building Commissioner exercising judicial power when making a BRO; and
(b)if the Building Commissioner is exercising judicial power when making a BRO, does the making of the BRO fall within a 'matter' arising under a law of the Commonwealth.
Accordingly, Ventura must fail in the Supreme Court proceedings if the Court decides the answer to either question is 'no'.
The applicant accepts that, in determining the Supreme Court proceedings, a single judge of the Supreme Court will be bound to follow the decision in Hanssen. In that case, the Court of Appeal decided that the Commissioner was not exercising judicial power in making a BRO.[23]
[23] Hanssen [111] to [116].
Accordingly, a single judge of the Supreme Court, following Hanssen, must decide that the Building Commissioner is not exercising judicial power in making a BRO, and the answer to the question referred to in [48(a)] is 'no'. It follows that Ventura has no prospect of success in the Supreme Court proceedings before a single judge.
In recognition of this inevitability, Ventura has informed the case management judge, Howard J, that it will seek an order under O 56 r 5(4) of the Rules of the Supreme Court 1971 (WA) (Rules) for the Supreme Court proceedings to be transferred to the Court of Appeal without first being determined by a single judge. Order 56 r 5(4) of the Rules allows a single judge dealing with a judicial review application, without deciding the application, to order that it be heard by the Court of Appeal.
The intervenor is a party to the Supreme Court proceedings and says that he intends to oppose the proposed application. The intervenor says that there is still benefit in the Court of Appeal having a first instance decision on the question in [48(b)] above, which has not previously been determined. The applicant's counsel conceded in oral submissions that there was some force to this argument.[24] The application to transfer the Supreme Court proceedings would, therefore, need to be argued. If that application is not granted, and the matter is heard by a single judge who, following Hanssen, decides against Ventura, it appears that Ventura's current intention is to appeal.
[24] ts 27, 15 September 2025.
In either case Ventura will have to persuade the Court of Appeal that Hanssen is plainly wrong.
I have not been informed of the basis on which the applicant will argue that Hanssen was wrongly decided and that the Building Commissioner, in making a BRO, is exercising judicial power. However, it seems likely, as the intervenor submits, that Ventura will have some difficulty persuading the Court of Appeal that a recent, considered, and unanimous decision of that Court is plainly wrong.
In addition, the applicant will also have to satisfy the Court that the answer to the second question, in [48(b)] above, is also 'yes'. In light of the difficulties the applicant faces in succeeding in the first question, I have not considered the prospects of success in the second question. There was no suggestion that it was not arguable. However, logically, the need to prove both must further reduce the applicant's overall prospects of success in the Supreme Court proceedings.
As a result, I conclude that Ventura has no prospect of success in the Supreme Court proceedings, if heard by a single judge, and there are significant obstacles to success before the Court of Appeal.
Accordingly, in my view, there is limited prejudice to the applicant in being required to pursue the review proceedings before the Supreme Court proceedings are decided.
Costs
Turning to the question of what costs would be thrown away, or wasted, if the review proceedings are not adjourned and the Supreme Court proceedings are ultimately successful, the applicant has not presented any evidence, or made any submissions, of what those costs are likely to be. However, in my view, those costs are unlikely to be substantial, even taking into account the likelihood that the applicant will be represented by senior counsel.
As I understand the issues, it appears likely that the length of the hearing will be relatively short, perhaps a few days. There will obviously be some preparation necessary. However, it appears on the material before me that some of that preparatory work has already been done, at least in developing the legal arguments raised with the delegate, and in compiling some factual evidence.
My view is not changed even if the costs of the four matters are considered collectively. The hearing is likely to be somewhat longer but still in the vicinity of a week or so. The legal issues in each case are identical. Whilst there are some factual differences between the matters, there appears to be a significant degree of overlap in the evidence to be led as far as the applicant is concerned.
It is also likely that the decision in this matter, and the other three matters, will be the basis of some precedent for later proceedings for review of similar BROs. There is no dispute that the review proceedings have a wider implication. Although there is no evidence before me of the number of BROs made in relation to houses in which BGC Group companies have installed the pipes, the pleadings filed in the Federal Court proceedings indicate that the number of houses where there had been three or more burst pipe events[25] was just under 900 as at August 2024.
[25] This being the category in the Western Australian Plumbing Failure Policy (2024) published in the Western Australian Government Gazette, No. 137, 12 November 2024, page 2661, into which the respondents in these proceedings and the other three proceedings fall.
In addition, the costs are unlikely to be significant relative to the overall costs that the applicant is likely to incur in pursuit of the Supreme Court proceedings, the Federal Court proceedings and the ongoing repair work that is already being done in relation to the replacement of burst pipes and repair of damage caused by those burst pipes, given the number of burst pipe events referred to in the Federal Court pleadings.
Prejudice to the applicant if the stay is not granted
The applicant submits that, if the stay is not granted, it will be required to perform work under the BRO before the review of the BRO is completed, rendering the review proceedings nugatory, or be at risk of prosecution for the failure to comply, or at risk of the respondents applying for a monetary order.
The respondents say that the review will not be rendered nugatory because the applicant has said it will continue to meet its obligations to remedy burst events, and it is very probable that the applicant will be required to repair zones in the house that must in any event be repaired under the BRO.
The BRO requires that the applicant conduct a full re-pipe of the respondents' house within 6 months of 30 May 2025, that is by 30 November 2025. It is not in dispute that this goes beyond the work that the applicant has been doing and says it will continue to do.
Mr Casotti says in his affidavit that BGC Group has been performing damage repair where there have been burst pipe events, and ceiling re‑pipes, on a voluntary basis. Mr Casotti says that the applicant has not performed a full home re-pipe of the respondents' house, but, in April 2025, had commenced a ceiling re-pipe, as well as works to remove and replace the pipes in a laundry and a bathroom. In her affidavit, Ms McCutcheon confirms that these works were completed in April and May 2025. On Mr Casotti's evidence, in order to complete the full re-pipe required by the BRO, the applicant must remove and replace the remaining pipes in a different laundry and bathroom, the kitchen, a powder room and an ensuite.
On Mr Casotti's evidence, based on re-pipe work the BGC Group has undertaken on six houses, a complete re-pipe takes 12 to 14 weeks to complete if the occupiers move out of their home while the work is being done, and 14 to 16 weeks if they do not do so. Accordingly, Mr Casotti says that there is a risk that the complete re-pipe of the respondents' house will not be complete by 30 November 2025 if the re-pipe work is not commenced by the end of August 2025. That deadline had passed as at the date of the hearing before me.
Accordingly, on Mr Casotti's evidence, there is a real risk that the required work would not be completed by 30 November 2025 in any event.
Mr Casotti says that a ceiling re-pipe is the most effective mitigatory measure to avoid burst pipe events and reduce the potential for hazards as a result of burst pipes. Mr Casotti does not say how he has arrived at this opinion, and it is not clear to me what Mr Casotti means by 'most effective', given that there does not appear to be any dispute that a ceiling re-pipe does not involve replacing all the allegedly defective pipes in the walls and there is still a risk that these may burst.
Mr Casotti also says that BGC Group has a policy of trying to perform ceiling re-pipes on a voluntary basis, doing 150 per month on single storey homes and 20 per month on double storey homes. He says that BGC is responding to five pipe failures per day, although this appears to have reduced to four pipe failures per day between his first affidavit sworn on 1 August 2025, and his later affidavits sworn on 18 August 2025 in the other three proceedings.
Mr Casotti says that BGC Group cannot do all the aspects of a full home re-pipe itself and must outsource some of the repair work. He says that this is at significant cost. He also says that BGC has 200 homes under construction and 9,000 homes with post completion maintenance obligations. However, these assertions were broad in their scope, with no detailed evidence. Accordingly, I find that, in considering the applications, I can give little weight to the implication that BGC does not have the resources to perform the work in the BRO, either alone or with the other three matters combined.
That said, however, it is obvious that, if the stay is not granted, the applicant will be required to perform work on the respondents' house, at a not insignificant cost of both time and resources, before the review of the BRO is determined, or be at risk of prosecution or the respondents seeking a monetary order. There is no dispute that the review proceedings will not be heard and determined by the latest date that the applicants are required to perform the work. If the applicant then succeeds in the review proceedings, it will be in a position where it has already undertaken work it is no longer legally required to undertake. Self-evidently, once the applicant has done that work, it cannot be put back in the position where it has not done the work.
Accordingly, in my view, whilst there may still be some collateral benefit to the applicant in having a matter determined in its favour, if that occurs, the review will be rendered nugatory if a stay is not granted.
Respondents' further submissions in relation to the applicant's prejudice
In relation to the issue of the applicant's prejudice if the stay is not granted, the respondents say that it is in the applicant's long-term interests to pre-empt these repairs, and that the applicant has been incurring unnecessary expense by replacing only the parts of pipes that have burst and not replacing other pipes at the same time when they have the opportunity. Whilst that is the respondents' opinion, it is apparently not the applicant's view and I am not in a position to form a view, one way or another, on the evidence before me.
Further, in relation to this issue, the respondents say that the applicant is seeking compensation for the repair costs. This is presumably a reference to the Federal Court action against Iplex, which appears to be some time away from a resolution, or to the possibility that the applicant has relevant insurance cover, about which I have no clear evidence. Even assuming, however, that the cost of repair is being funded by an insurer, there would appear to be a difference between undertaking repairs as burst pipe events occur and undertaking the pre‑emptive replacement of all the pipes in a house, with the latter apparently being more extensive and, therefore, more expensive, than the former. The fact that the applicant might ultimately be able to recover the cost of work done does not mean the review would not be rendered nugatory, given the potential that, if the BRO is set aside on review, the applicant would not have to perform the work at all.
I do not accept the respondents' submission that it follows from the fact that the applicant is repairing burst pipes as they occur that the applicant has impliedly accepted responsibility to replace all the pipes that have not burst.
The respondents also submit that the applicant has failed to 'mitigate their loss' by failing to take part in the industry response referred to in the Western Australian Plumbing Failure Policy (2024) (Plumbing Policy).[26] Participation in the industry response is voluntary. The applicant has not chosen to take part. I do not consider this to be relevant to either the application for an adjournment or for a stay.
[26] Western Australian Plumbing Failure Policy (2024) published in the Western Australian Government Gazette, No. 137, 12 November 2024, page 2661. See cl 12.9 and cl 12.12 in particular.
Prejudice to the respondents if the stay or adjournment are granted
Potential financial and emotional impacts of delay
The applicant concedes that the delay following a stay of the operation of the BRO will have a significant detrimental impact on each of the respondents, which will be greater if the stay is coupled with an adjournment of the review proceedings. In my view, that concession is appropriate.
In her affidavit of 7 September 2025, Ms McCutcheon describes the ongoing detrimental effect of the repeated burst pipes that have already occurred, and the fear of further burst pipes. She says that she and her husband, Mr McCarthy, have suffered nine burst pipes in their property over a period of nearly 4 years, with the first on 13 October 2021 and the latest on 12 October 2024. Ms McCutcheon says that each burst event causes enormous stress, financial cost, and inconvenience.
Ms McCutcheon says that the house was rented until February 2024, and the tenants received a reduction in rent for the duration of repairs for each event. A burst event in February 2024 resulted in the need to replace the entirety of the wooden floorboards on the ground floor and the carpet in two bedrooms. Ms McCutcheon says that, as she and her husband felt that they could no longer face the anxiety of dealing with upset tenants, they moved into the property themselves and rented out their own home, which has cost and tax implications for them. Ms McCutcheon says that she and her husband have spent many hours arranging entry for tradespeople undertaking repairs.
Ms McCutcheon says that she lives in fear of further burst pipes and the chaos they cause. She says that she and her husband check for leaks in the house every night before they go to bed.
There is no challenge to this evidence. I accept that the respondents have suffered adverse financial consequences as a result of the ongoing problem of pipes bursting. It may be inferred that it would be difficult to sell their house, and that its value has been reduced, given the risk of ongoing pipe burst events, although Ms McCutcheon does not say that the respondents want to sell their house.
I also accept that there is an emotional toll where a person has experienced numerous burst pipes and has to live with the risk that other pipes may burst at any time, and with the disruption to their normal lives in a house where building work is repeatedly being undertaken to replace burst pipes. I accept that there may be health risks associated with the flooding that results from a burst pipe event.
However, I do not accept that the stay will cause the respondents hardship that cannot be alleviated to some extent by the terms of the stay. Whilst the history suggests that there is a risk of a burst pipe event before a hearing, if the BRO is stayed, that may not occur. As noted, Mr Casotti's evidence indicates a recent, slight, decline in the daily rates of burst pipes.
In addition, I also find that the work that has been done to date has reduced the risk to some extent, given the replacement of a portion of the allegedly defective pipes.
The financial risks attached to delay, if not the emotional consequences, may be alleviated to some extent by conditioning the order for a stay on the provision of an undertaking as to damages. As I have said, the applicant did not oppose providing such an undertaking.
Length of the delay
Length of the delay if there is a stay but no adjournment
In my view, there is no basis for the respondents' submission that the applicant does not intend to prosecute the review proceedings, in the event that a stay is granted but an adjournment is not. The applicant's counsel said that the application would be pursued with 'appropriate vigour'.[27] In any event, if the review proceedings are not adjourned, the Tribunal's case management procedure should operate to ensure that the review proceedings progress in a timely way to a final hearing. Failure to comply with programming orders would expose the applicant to the risk that the matter would be dismissed for want of prosecution under s 46(3) of the SAT Act.
[27] ts 30, 15 September 2025.
It will necessarily take some time to complete the review proceedings. In my view, if the adjournment is refused but the stay is granted, and the Tribunal affirms the decision to make the BRO, the delay in the work under the BRO being performed is likely to be in the vicinity of between 9 to 12 months.
If the matter is heard within 6 months and a decision is handed down within 90 days thereafter, as required by s 76 of the SAT Act, the matter would not be determined until June 2026. If the Tribunal decides to affirm the delegate's decision, the Tribunal may include a reasonable time thereafter to comply with the BRO. Noting Mr Casotti's evidence referred to at [68] above, and assuming an allowance of 16 weeks at least, the principal work under the BRO would not be completed until at least the end of November 2026, a delay of around 12 months from the date the BRO requires the work to be done. Of course, that is just an estimate and there may be a greater delay. However, I consider it is unlikely the delay with be less than that estimate.
Length of the delay if there is a stay and an adjournment
The delay will be significantly greater if the stay is granted and the review proceedings are adjourned pending the outcome of the Supreme Court proceedings, despite the applicant's written submissions suggesting that the Supreme Court proceedings would cause relatively little delay. Those submissions were not pressed during the hearing of the applications, and they did not appear to take into account that success in the Supreme Court proceedings required the Court of Appeal to determine the matter.
At best, it is uncertain whether an order transferring the Supreme Court proceedings to the Court of Appeal will be made. That application will, in any event, delay the determination of the Supreme Court proceedings.
The intervenor suggested an estimate for completion of the Supreme Court proceedings of not before the end of 2026, if transferred directly to the Court of Appeal. That estimate strikes me as being realistic. There is no evidence that Ventura has sought, or intends to seek, to have the Supreme Court proceedings heard on an urgent basis. The likely time to completion will certainly be longer, in my view, of at least 2 years, if the matter must first be heard and determined by a single judge before being taken on appeal.
If Ventura is unsuccessful in the Supreme Court proceedings, it is likely that the review proceedings will then take a further 12 months. Accordingly, the respondents may be waiting up to 3 years or more before having an answer to whether the work under the BRO will be performed.
Prospects of success in the review proceedings
The strength of the applicant's case in the review proceedings is a matter that weighs in the balance against the other relevant factors. I can only approach the question of the strength of the case with a broad brush. It is not appropriate for me to give detailed consideration to the merits or to make any findings about those merits at this stage.
The applicant and Ventura seek review in identical terms in each of the four review proceedings. In summary, and in light of the applicant's submissions, I understand the grounds of review to be:
(a)the delegate's estimate of the cost of the re-pipe work as falling under the statutory limit of $100,000 did not include relevant costs in relation to the respondents' house, but rather were based on the probable costs of hypothetical works that were different to that house, and that there was no estimate of the damage to the contents of the house, which is a category of remedial work included in the BRO;
(b)on a proper construction of s 5(1) of the Building Services Act, the regulated building service provided by the applicant was not faulty or unsatisfactory merely because the applicant had installed pipes containing an unknown latent defect;
(c)the delegate did not have power to include an order in the BRO requiring the applicant to remedy damage directly caused by the plumbing failures to the house, and alternatively damage to the contents of the house, because these are not orders requiring the applicant to remedy the building service it carried out within the meaning of s 36(1)(a) of the Building Services Act;
(d)the applicant is not able to comply with the BRO within the meaning of cl 10.5 of the Plumbing Policy without reallocating resources already committed to the applicant's contractual obligations to construct other houses and its attendance on emergency burst pipe repairs, rectification works, ceiling re‑pipes and zone re-pipes; and
(e)the delegate failed to have regard to cl 10.3(d) of the Plumbing Policy, requiring that the delegate consider whether the respondents are able to receive a remedy in relation to the pipes, including through an insurance or other claim.
The grounds referred to in [96(a)], [96(c)] and [96(e)] above are expressed in terms of the delegate having made an error. It is not the role of the Tribunal to assess whether the delegate has made an error in making the BRO, or whether it is validly made. A reference to a 'decision' in the context of provision for administrative review of a 'decision' is ordinarily to a 'decision in fact made, regardless of whether or not it is a legally effective decision'.[28] That said, the Tribunal will, on review, be required to determine for itself the matters referred to in those paragraphs. As the hearing is a hearing de novo, it is the Tribunal's role to determine whether the BRO should have been made on the material before the Tribunal at the time of the Tribunal's decision, subject to the same constraints as the original decision-maker.[29]
[28] SH v Chief Executive Officer of Department of Communities [2019] WASCA 31 [29] following Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338, 342.
[29] Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250; [2019] HCA 16 [15] and [51].
Having considered the substance of the grounds, it appears that the argument in relation to some of the grounds is stronger than others. However, I conclude that it cannot be said that the applicant's case is without merit as was suggested by the respondents, although that merit remains to be determined after a substantive hearing. In my view, each ground raises a serious question and is at least arguable.
Public Interest considerations
I accept that the issues occurring in the respondents' house have occurred in a significant number of houses in Western Australia, although I do not know precisely how many. It follows from this that the outcome of the review proceedings has a broader public interest, at least to those people in whose houses the pipes have been installed. The decision in this case, and the other three cases, is likely to have implications for other homeowners and that adds to the need for the matter to be dealt with speedily. However, it also has broader implications for the applicant, Ventura (which is the applicant in the other three matters), and the BGC Group.
Overall, I do not consider that public interest adds to my consideration of whether to grant either the stay or the adjournment.
I do not consider the stay decision is particularly relevant to the protection of public confidence in the regulatory system. Even if a stay is ordered, the regulatory system will follow its course. I would expect, if a stay is ordered, the public would accept that it was not unreasonable to relieve the applicant of its obligation to do the work specified in the BRO until the Tribunal has determined whether the applicant should do that work.
The public interest is of more relevance in relation to the grant of the adjournment, given the greater potential delay, and the difficulties faced by Ventura in the Supreme Court proceedings. However, overall, I do not consider the public interest to be a significant factor in addition to those considerations.
Impact on the Tribunal's objectives
The Tribunal's main objectives in dealing with matters within its jurisdiction include:
(a)to achieve the resolution of questions, complaints, or disputes, and to make or review decisions, fairly and according to the substantial merits of the case; and
(b)to act as speedily and with as little formality as is practicable and minimise the costs to the parties.[30]
[30] SAT Act, s 9(a) and s 9(b).
I consider that each of these factors balances the other out. An adjournment would significantly undermine the objective that the Tribunal must deal with the matters before it speedily. A stay would not do so, as the proceeding will proceed to a final hearing if a stay, and not an adjournment, is granted. On the other hand, a review proceeding that is rendered nugatory, because the applicant will have to carry out the work before the Tribunal has decided whether the applicant should have to carry out the work, is not fair.
Contrary to the applicant's submission, there would appear to be no prospect that, in considering its jurisdiction, the Tribunal would arrive at a different decision from a single judge in the Supreme Court proceedings, given both are bound by the Court of Appeal in Hanssen. The prospects of the decision differing from the Court of Appeal would appear to be limited. In my view, that consideration is not a significant factor in determining these applications.
Balance of convenience
In my view, the balance of relevant factors favours a refusal of the adjournment, in light of the significant obstacles to success in the Supreme Court proceedings that I have referred to, the relatively limited costs of the review proceedings, the likely lengthy delay of some years in concluding the review proceedings if an adjournment and a stay are granted, and the significant ongoing detriment suffered by the respondents in delaying the resolution of the review proceedings.
In my view, however, the balance of convenience favours the grant of the application for a stay, in the absence of an adjournment, where the failure to grant a stay will render the review proceedings nugatory, the delay in resolving the review proceedings, in the absence of an adjournment, should be less than a year, the respondents' financial, if not emotional, detriment will be mitigated to some extent by an undertaking as to damages (which I consider appropriate) and the work the applicant has said it will do voluntarily, and the risks of burst pipe events may be inferred to have been reduced by the replacement of a number, albeit not all, of the pipes in the house.
Other matters
Abuse of process and improper purpose
In my view, there is no basis for the respondents' submission that the interlocutory applications are an abuse of process because they are for an improper purpose.
The respondents submitted that improper purpose was the applicant's alleged desire to delay having to do any remedial work for people in whose houses the pipes have been installed until after the Federal Court litigation is determined. The respondents correctly accepted that they bear the onus of establishing that the applicant had brought the proceedings for an improper purpose, and that the onus is a heavy one.[31]
[31] Legal Profession Complaints Committee and Rayney [2016] WASAT 142 [18].
Whilst the respondents are obviously anxious to have the remedial work on their houses completed and are suspicious of the applicant's motives in commencing the review proceedings and the Supreme Court proceedings, the submission that those proceedings, and the applications, have been made for an improper purpose finds little, if any, support in the evidence.
The exercise of the right to bring review proceedings, and the bringing of the applications, could not be said to evidence any improper purpose where it cannot be said that those proceedings are hopeless.
The high point of the respondents' submission, in my view, was that the applicant had sought the adjournment pending the completion of the Supreme Court proceedings, in circumstances where those proceedings have no prospect of success at first instance.
As I have said, the applicant has not disclosed the basis on which it argues that the Court of Appeal could find the decision in Hanssen 'plainly wrong'. However, in my view, the difficulties faced by the applicant in the Supreme Court proceedings do not allow me to conclude that the applications were brought for an improper purpose and are an abuse of process as a result.
Failure to raise Hanssen
In the intervenor's written and oral submissions, counsel for the intervenor commented negatively on the applicant's omission, in its supporting material, to refer to Hanssen and the proposed application to transfer the Supreme Court proceedings to the Court of Appeal. The intervenor did not, however, suggest any consequence flowing from that omission.
The applicant's counsel conceded that, with the benefit of hindsight, this omission should not have occurred.[32] In my view, it was a serious oversight.
[32] ts 22, 15 September 2025.
However, whilst none of the parties to the four applications are parties to the Supreme Court proceedings, the intervenor is a party to those proceedings. Accordingly, it was inevitable that these matters would be raised at the hearing on 15 September 2025, as they were.
Accordingly, I do not think that the omission is relevant to my consideration of the applications.
Conclusion
For the reasons referred to above, I have determined that it is desirable to order a stay of the operation of the BRO subject to the provision of an undertaking by the applicant and to dismiss the application for an adjournment of the review proceedings. I have also decided it appropriate to make orders programming the review proceedings to a directions hearing, as set out below.
Orders
The orders made on 18 September 2025 were as follows:
The Tribunal orders:
1.Pursuant to section 25(2) of the State Administrative Tribunal Act 2004 (WA) the operation of the Building Remedy Order O2024-979 made by the Building Commissioner against the applicant on 30 May 2025 is stayed pending further order of the Tribunal, upon the applicant making a written undertaking as to damages in the following terms and lodging that undertaking with the Tribunal:
J-Corp Pty Ltd hereby undertakes to the Tribunal to pay to any party restrained or affected by the Tribunal's order dated 18 September 2025 staying the operation of Building Remedy Order O2024-979 pending further order of the Tribunal such compensation as the Tribunal may in its discretion consider in the circumstances to be just, such compensation to be assessed by the Tribunal or in accordance with such directions as the Tribunal may make and to be paid in such manner as the Tribunal may direct.
2.A copy of any undertaking lodged pursuant to order 1 is to be served on the parties.
3.The parties have liberty to apply in relation to order 1 on giving 48 hours notice to the Tribunal and the parties.
4.The applicant's application dated 1 August 2025 to adjourn the proceeding is dismissed.
5.The matter is listed for a directions hearing at 10.30 am on Wednesday, 24 September 2025 at 565 Hay Street, Perth, Western Australia.
6.By 4 pm on Monday, 22 September 2025, the parties must file with the Tribunal and give to the other parties proposed orders to program the proceeding to a final hearing and their unavailable dates for a final hearing in November and December 2025, and January and February 2026.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
FB
Associate to the Deputy President Judge Vernon
3 NOVEMBER 2025
3
12
5