J-Corp Pty Ltd and O'Connor and Anor
[2008] WASAT 107
•16 MAY 2008
J-CORP PTY LTD and O'CONNOR & ANOR [2008] WASAT 107
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 107 | |
| BUILDERS' REGISTRATION ACT 1939 (WA) | |||
| Case No: | CC:1939/2007 | 6 MAY 2008 | |
| Coram: | MR C RAYMOND (SENIOR MEMBER) | 16/05/08 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave refused Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | J-CORP PTY LTD COLIN O'CONNOR MARIE ELDINA O'CONNOR |
Catchwords: | Builders' Registration Act 1939 (WA) Application for leave to review decision Turns on own facts |
Legislation: | Builders' Registration Act 1939 (WA), s 12A(4a), s 41, s 41(1) State Administrative Tribunal Act 2005 (WA), s 31 |
Case References: | Tangent Nominees Pty Ltd and Edwards & Anor [2005] WASAT 119 |
Orders | 1. The application for leave to review the decision of the Building Disputes Tribunal reflected in Order to Pay No 83/2007-08 is refused.,2. The application is dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : BUILDERS' REGISTRATION ACT 1939 (WA) CITATION : J-CORP PTY LTD and O'CONNOR & ANOR [2008] WASAT 107 MEMBER : MR C RAYMOND (SENIOR MEMBER) HEARD : 6 MAY 2008 DELIVERED : 16 MAY 2008 FILE NO/S : CC 1939 of 2007 BETWEEN : J-CORP PTY LTD
- Applicant
AND
COLIN O'CONNOR
MARIE ELDINA O'CONNOR
Respondents
Catchwords:
Builders' Registration Act 1939 (WA) - Application for leave to review decision - Turns on own facts
Legislation:
Builders' Registration Act 1939 (WA), s 12A(4a), s 41, s 41(1)
State Administrative Tribunal Act 2005 (WA), s 31
(Page 2)
Result:
Application for leave refused
Application dismissed
Category: B
Representation:
Counsel:
Applicant : Mr S Pentony
Respondents : Self-represented
Solicitors:
Applicant : Hotchkin Hanly
Respondents : Self-represented
Case(s) referred to in decision(s):
Tangent Nominees Pty Ltd and Edwards & Anor [2005] WASAT 119
(Page 3)
Summary of Tribunal's decision
1 The applicant applied under s 41 of the Builders' Registration Act 1939 (WA) for leave to review a decision of the Building Disputes Tribunal reflected in an Order to Pay dated 6 November 2007.
2 The State Administrative Tribunal rejected the applicant's submissions that the Building Disputes Tribunal had erred, or that the decision was attended with sufficient doubt, because it had relied on a method for testing for leaking doors and windows which was asserted not to be appropriate and had relied on what was alleged to be self-serving evidence from the owners, in order to conclude that there had been noncompliance with an Order to Remedy. The State Administrative Tribunal found that the inspector had been aware of the shortcomings in the test and had taken that into account. Although there was no further objective evidence of continued leaking from the owners, and therefore their evidence had to be approached with caution on that question, the Building Disputes Tribunal relied principally on the evidence of the inspector. In the absence of any acceptable evidence of what other tests should have been carried out, the State Administrative Tribunal found that the Building Disputes Tribunal was justified in relying on the evidence of the inspector. In any event, there was other evidence, not relied on by the Building Disputes Tribunal, which demonstrated that the applicant's attempt to comply with the Order to Remedy had not addressed any of the causes of leaking. Accordingly, if the reasons for decision were to be regarded as attended with sufficient doubt, it was manifestly clear that the Building Disputes Tribunal had, in any event, come to the correct conclusion, and therefore no substantial injustice could result from the refusal of leave to review the decision.
3 The State Administrative Tribunal also rejected the applicant's submissions that the Building Disputes Tribunal had erred in awarding compensation based on replacement of the doors and windows without investigating and finding what particular steps were necessary to prevent the leaks and costing those repairs. On the evidence before the Building Disputes Tribunal, including prior evidence given by a representative of the manufacturer of the doors and windows at a prior hearing, that only replacement would prevent leakage, and expert evidence tendered by the owners supporting this conclusion, the Building Disputes Tribunal was justified in restricting the enquiry to the cost of replacement. That was particularly so because the applicant had known for some four months prior to the hearing that
(Page 4)
- the respondents were contending that compensation should be awarded on that basis, and gave no indication of an intent to suggest some other remedy would be appropriate until at a very late stage in the hearing.
4 The application for leave to review the decision was accordingly refused and the application dismissed.
The application and issues for determination
5 On 4 December 2007, the applicant (the builder) made application to the State Administrative Tribunal (the Tribunal) under s 41(1) of the Builders' Registration Act 1939 (WA) (BR Act) seeking leave to review and the review of a decision of the Building Disputes Tribunal (the BDT) reflected in an Order to Pay No 83/2007-08 dated 6 November 2007. The order was issued immediately following the publication of the BDT's reasons for decision dated 5 November 2007.
6 Following an initial directions hearing heard on 20 December 2007, the BDT was invited by the Tribunal under s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) to reconsider its decision. The BDT complied with that request and provided supplementary reasons for decision which, in effect, affirmed the original decision.
7 Relevantly, the Order to Pay directed that the builder pay to the respondents (the owners) an amount of $58,109.40. That was the cost of replacement of certain windows and doors in the owners' residence, which had been constructed by the builder, and in relation to which the parties had been in dispute for a considerable period commencing well prior to the owners lodging a complaint with the BDT on 18 August 2004.
8 The parties filed written submissions and copies of the particular documents on which they relied, prior to the hearing of the application for leave on 6 May 2008. Two principal issues were identified, the determination of which, subject only to the qualification referred to below, is determinative of the application. Those issues are:
1) whether the BDT erred in relying on evidence from an inspector of the Builders Registration Board, Mr Gronow, concerning the manner in which he had tested the windows and doors for leaks, and consequently, whether there was a sufficient basis upon which to find that the builder had failed to comply with an Order to Remedy the leaking doors and windows;
- 2) in any event, that the BDT erred in assessing the amount of compensation payable, in that the parties were not required to exchange and lead expert evidence dealing with the question of what work, if any, was reasonably required to ensure compliance with the Order to Remedy.
9 The qualification referred to above is that the builder, by letter dated 24 April 2008, applied for the hearing listed for 6 May 2008 to be vacated, on the basis that it had concluded that unless evidence was placed before the Tribunal establishing that the testing method employed by Inspector Gronow was incorrect, which meant that an opportunity would be required for further testing to be carried out, the builder would have difficulty demonstrating that a substantial injustice would result, if leave to review the BDT decision was not granted. Following the hearing of that application, the Tribunal refused the application to vacate the hearing date, but granted leave at the hearing, if so advised, to apply for the leave application to be adjourned to allow further evidence to be provided as requested. Shortly, the reason for that course was that there was little purpose in adjourning the matter, if the builder was not able to demonstrate that the decision of the BDT was wrong or attended with sufficient doubt. Further, if the builder could so demonstrate, it remained possible that a substantial injustice might be demonstrated without the need for testing. These considerations form part of the criteria for the grant of leave in accordance with the principles determined in Tangent Nominees Pty Ltd and Edwards & Anor [2005] WASAT 119.
Issue 1 - Testing method
10 Prior to the BDT issuing an Order to Remedy to remedy defective work, which included the work the subject of these proceedings, Inspector Gronow used a garden hose to spray water onto the doors and windows. He described doing so in his report dated 28 July 2006 (p 87 of the BDT papers). The Tribunal informed the parties that it would have regard to all documentation contained in the Tribunal's file at the commencement of the hearing and neither party objected to that course. There is nothing in the material before the Tribunal, which included all of the documentation included within the BDT file and the book of documents used for the hearing before the BDT, which suggests that there was then any challenge made of the method of testing. That notwithstanding, the builder had a letter from the manufacturer of the doors and windows dated 22 September 2006, with at least part of a technical publication
(Page 6)
- prescribing a methodology for the field testing of windows and doors for water penetration. That documentation was provided by the builder to the BDT only on 13 July 2007, immediately prior to the final hearing on 17 July 2007, which resulted in the issue of the Order to Pay. The documentation was then provided to support the builder's criticism that the hose test used by Inspector Gronow during an inspection on 10 July 2007 to support a conclusion that the builder had failed to comply under the Order to Remedy was not an appropriate test. The Order to Remedy had issued on 28 November 2006. That followed immediately after the hearing on 24 November 2006 and 27 November 2006.
11 There is no transcript of the evidence given before the BDT on 24 November 2006 and 27 November 2006. It is, however, evident that the BDT concluded, on whatever evidence it had before it, that the doors and windows were leaking, that is, that they were defective, because that finding was a necessary prerequisite to the issue of an Order to Remedy.
12 The Order to Remedy No 176/2006-07 dated 28 November 2006 required, relevantly, that the builder rectify the leaking windows and sliding doors, replace all rusted/corroded screws fixings to comply with the Australian Standards; and rectify the leaking and warping to the front entry doors. Section 12A(4a) of the BR Act provides that if the BDT is satisfied that an Order to Remedy building work has not been complied with, or has been complied with in part only, the BDT may revoke the Order to Remedy and make an Order to Pay under the relevant subsections thereof. It is clear that the BDT, in making the Order to Pay, must have sought its authority to do so under these provisions. It is for that reason that the builder contends that the evidence is insufficient to demonstrate that the Order to Remedy had not been complied with.
13 Counsel for the builder made a number of submissions in an endeavour to demonstrate that the quality of the evidence, putting aside Inspector Gronow's test, to demonstrate noncompliance was unreliable or vague, such that there should, at the very least, be sufficient doubt as to whether or not the BDT decision was correct. It is the case that the owners submitted no fresh objective evidence such as photographs, after the builder's purported attempt to comply with the Order to Remedy, so that there is only the owners' say so that the windows continued to leak, and that evidence would have to be regarded as self-serving so as to be accepted only with caution. Further, reference was made to portions of the transcript to suggest that the builder member of the BDT had reservations as to the
(Page 7)
- method of testing used by Inspector Gronow. The Tribunal considers that the portions of transcript relied on are equivocal, and the builder may be drawing a long bow, but in the context of an application for leave, some doubt is raised as to whether there was sufficient evidence to find that the doors and windows continued to leak. The Tribunal will revert to this issue to conclude whether that element of doubt is sufficient to justify the grant of leave.
14 There was, however, additional evidence before the BDT which demonstrates conclusively that the builder failed to comply with the Order to Remedy.
15 Firstly, the only evidence given on behalf of the builder, by Mr Valentini, a manager employed by the builder, was to the effect that he gave instructions to the builder's maintenance supervisor to attend at the owners' dwelling and apply silicone to the joins between the frames of the doors and windows and the mortar, and that he instructed the manufacturers of the windows and doors to replace such seals as were necessary. Mr Valentini did not check the work which was carried out.
16 Secondly, a careful reading of Inspector Gronow's report dated 28 July 2006 reveals that the problem with the doors and windows was not related to the join between the respective frames and mortar. The leaks were within the frames of the windows and doors themselves. While the Order to Remedy does not express what work must be carried out, in the context of the only evidence to which the Tribunal was referred, Mr Valentini could not have misunderstood what work was required to be done.
17 Thirdly, the evidence of the owners was that no seals were replaced, and that evidence was never contradicted. There was therefore no attempt made to address the complaints which were the subject of the Order to Remedy.
18 Once regard is had to the above factors, the conclusion is inescapable, that the builder did not comply with the Order to Remedy. Further, the consequence of no work being undertaken, specifically addressing the complaints raised in Inspector Gronow's report of 28 July 2006, is that the doors and windows, which the BDT found to be defective resulting in the issue of the Order to Remedy, remained defective. It was not necessary for any further evidence to be given and it is not open to the builder to go behind the Order to Remedy and contend that without an appropriate test being carried out, the BDT conclusion that the builder had failed to comply with the Order to Remedy
(Page 8)
- was wrong. Although the reasons given by the BDT might, on the above basis, be said to be open to some doubt, it is manifestly clear that the conclusion was correct, having regard to the above factors. Accordingly, even if it were to be accepted that the reasons given by the BDT were open to some doubt, it cannot be contended that any substantial injustice has resulted.
19 In any event, the Tribunal does not accept that the BDT erred in relying on the test carried out by Inspector Gronow to establish whether or not the builder had complied with the Order to Remedy. Although the builder, shortly before the hearing, put in issue whether or not a correct testing process had been followed, the material relied upon by the builder was incomplete and the BDT declined to rely on it. Further, Inspector Gronow's report of 28 July 2006 demonstrated that he was aware of the limitations placed on the hose test which he applied and that was taken into account by him in expressing his views. Although in its supplementary reasons the BDT also relied on evidence from the owners, the fact that this was not referred to in the BDT's original reasons for decision indicates that the predominant basis upon which the BDT concluded that there had been noncompliance with the Order to Remedy was the evidence of Inspector Gronow. That some doubt might be placed on whether it is safe to rely on the owners' evidence is an inadequate basis upon which to conclude that the decision is sufficiently doubtful so as to justify the grant of leave. Further, if that conclusion is wrong, in any event, for the reasons given, it is not possible to demonstrate that any substantial injustice would result.
Issue 2 - Quantification of Order to Remedy
20 The amount awarded by the BDT was based on quotations provided by the owners to the BDT which the BDT copied to the builder on 9 March 2007. The builder had therefore had the owners' quotations for some four months prior to the hearing date on 17 July 2007. The BDT specifically found that the quotations were submitted to it as evidence of the reasonable cost of remedying the work. That is a significant statement, because, as counsel for the builder points out, the BDT, in awarding compensation, can only award the costs of remedying the building work that is faulty or unsatisfactory.
21 The statement of the BDT is supported by expert building consultant reports which were filed by the owners and which supported as the only means of remedying the leaks, the replacement of the windows and doors.
(Page 9)
22 Counsel for the builder submits that the BDT nevertheless erred, because it did not permit the builder to lead evidence putting in issue the extent of repairs necessary to comply with the Order to Remedy. The difficulty with that submission is that the builder, knowing that the owners were seeking a conversion of the Order to Remedy into an Order to Pay, and having been provided with the owners' quotations for replacement of the doors and windows, never came to the hearing prepared to run that case. When it became apparent during the hearing that the builder wished to contest the quotations and expressed the view, through Mr Valentini, that replacement was not necessary, the BDT allowed a short adjournment for Mr Valentini to discuss the matter and obtain costings from the manufacturer. In motivating that adjournment, Mr Valentini made reference only to the manufacturer and indicated that he would go to them and advise that he needed advice as to the costing to replace all the windows and frames, or whether the sashes could be replaced, and what was the best way to address the question [T:90] (Appeal Book p 97).
23 An exchange then ensued in which the Chairperson made it clear to Mr Valentini that he would be given an opportunity only to establish the reasonable cost of replacing the doors and windows and that he would not be given an opportunity to contend that any other remedy was available. That was because, as the Chairperson pointed out, the manufacturers of the windows had already said under oath that the only way to rectify the doors and windows was to replace them all [T:90] (Appeal Book p 97 line 15). The Tribunal was informed by the owners, and the statement was not challenged by the builder's counsel, that this was a reference to evidence given by a manager of the manufacturer concerned, Mr Dudley at the previous hearing.
24 That notwithstanding, counsel for the builder contended that the BDT was obliged to satisfy itself that was the case and that Inspector Gronow's report of 13 July 2007 suggested that other remedies were available. In the light of that evidence, it was submitted that the BDT should have investigated the issue.
25 The Tribunal does not consider that the statements made by Inspector Gronow in the report referred to, support the builder. All that Inspector Gronow stated was that there were steps which could be taken involving the provision of a weatherproof attachment on the top edge of the sash, and the fitting of a section of matching aluminium over existing sill edges. After referring to these possible measures, the report stated (p 5):
(Page 10)
- "The inspector is unable to determine if further modifications to the existing frames as suggested will ensure that the windows and doors will resist the penetration of moisture over their intended life, however they are accepted industry methods for sliding windows where windows and doors are exposed to severe conditions."
26 Reference was made during the hearing to many attempts having been made by the builder to prevent the leaking, prior to the issue of the Order to Remedy. As already pointed out, the dispute commenced sometime prior to the lodging of the complaint in 2004. In addition, the BDT had before it reports from the owners' consultants advocating that the only remedy was replacement, and the manufacturer of the doors had expressed the same view under oath. It is not surprising, in those circumstances, that the BDT declined, at a very late stage, to allow the builder to raise the issue. That is so, particularly given that the builder was aware of the claim it had to meet for some four months prior to the hearing.
Conclusion
27 For the above reasons, the Tribunal finds that the reliance by the BDT on Inspector Gronow's evidence relating to the inspection and tests carried out by him on 10 July 2007, and referred to in his report dated 13 July 2007 does not result in the decision in question being wrong or attended with sufficient doubt. In any event, if that conclusion is wrong, it is unarguable, on the evidence before the BDT, that the builder did not comply with the Order to Remedy, and in fact took no steps to do so, so that it may be inferred from the previous finding that the windows and doors were defective, that they remained in the same state. Further, the Tribunal is not satisfied that the BDT erred, in the circumstances of the case, in not allowing an enquiry as to whether any remedy other than replacement of the doors and windows was appropriate. Inspector Gronow's reference to other possible remedies, which accorded with industry practice, in the context of all the evidence, was anything but a positive assertion that the further measures to which he referred would remedy the problem. As the criteria for leave have not been met, leave to review the BDT decision must be refused and the application dismissed.
Orders
28 The Tribunal accordingly orders:
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- 1. The application for leave to review the decision of the Building Disputes Tribunal reflected in Order to Pay No 83/2007-08 is refused.
2. The application is dismissed.
I certify that this and the preceding [28] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR C RAYMOND, SENIOR MEMBER
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