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JENNINGS and HOWITT

JENNINGS and HOWITT

Case [2019] WASAT 133 12 December 2019

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JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   JENNINGS and HOWITT [2019] WASAT 133
MEMBER:   MS C WALLACE, SENIOR MEMBER
HEARD:   9 OCTOBER 2019
DELIVERED          :   12 DECEMBER 2019
FILE NO/S:   CC 971 of 2019
BETWEEN:   JEFFERY THOMAS JENNINGS
Applicant
AND
NEIL ALEXANDER HOWITT
First Respondent
JUSTINE SASCHA CANNING
Second Respondent

Catchwords:

Building Services (Complaint Resolution and Administration) Act 2011 (WA) - Application for leave to apply for internal review under s 58(2) - Criteria on application for leave - Proper exercise of the Tribunal's discretion in respect of nature of building remedy order - Whether a failure to build according to the provisions of a home building work contract constitutes building work not carried out in a proper and proficient manner - Whether substantial injustice will be suffered if decision left unreversed

Legislation:

Building Regulations 2012 (WA), Sch 4, cl 2
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5(1), s 11(1)(d), s 36, s 36(1), s 36(1)(a), s 36(1)(b), s 36(1)(c), s 38, s 38(1), s 58(2)
Home Building Contracts Act 1991 (WA), s 3(1)
Home Building Contracts Regulations 1992 (WA), reg 2A(b)
Planning and Development Act 2005 (WA), s 214(2)

Result:

Partly successful

Category: B

Representation:

Counsel:

Applicant	:	Mr M Lang
First Respondent	:	In Person
Second Respondent	:	In Person

Solicitors:

Applicant	:	Jackson McDonald
First Respondent	:	N/A
Second Respondent	:	N/A

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

Dumbreck and Tangent Nominees Pty Ltd [2017] WASAT 88
Filimon and Rimmer [2013] WASAT 13
Gemmill Homes Pty Ltd v Sanders [2018] WASC 179
Lewis and Waco Ltd [2016] WASAT 127
Myran Holdings Pty Ltd and Bombak [2013] WASAT 20
Waldron and Afra Construction Pty Ltd [2013] WASAT 207

REASONS FOR DECISION OF THE TRIBUNAL:

The application for leave to review

On 28 June 2017 the Building Commissioner received a complaint lodged by the respondents in this proceeding, Mr Neil Howitt and Ms Justine Canning, against the applicant in this proceeding, Mr Jeffery Jennings, pursuant to s 5(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act). The application alleged that the applicant had carried out a regulated building service, being the construction of a residential property in the suburb of Kalgan, in the City of Albany, Western Australia, which was faulty or unsatisfactory and/or which had not been carried out in a proper and proficient manner.
The complaint was referred to the Tribunal on or about 24 November 2017 pursuant to s 11(1)(d) of the BSCRA Act. The complaint became proceeding CC 2414 of 2017.
The respondents then lodged a further application with the Building Commissioner on 13 June 2018 raising additional complaints pursuant to s 5(1) of the BSCRA Act against the applicant. That application was also referred to the Tribunal pursuant to s 11(1)(d) of the BSCRA Act in October 2018 and became proceeding CC 1236 of 2018.
Both sets of proceedings were listed for final hearing concurrently for…

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.

Continue reading JENNINGS and HOWITT

Details

AGLC: JENNINGS and HOWITT [2019] WASAT 133
Case: [2019] WASAT 133
Decision Date: 12 DECEMBER 2019

CaseChat Overview and Summary

The appeal arose from a decision of the Building Commissioner under the Building Services (Complaint Resolution and Administration) Act 2011 (WA). The applicants, Jennings and Howitt, sought leave to apply for an internal review of the Commissioner's decision, which had been made under section 58(2) of the Act. The primary issue was whether the Commissioner had properly exercised his discretion in granting a building remedy order and whether a failure to build according to the provisions of a home building work contract constitutes building work not carried out in a proper and proficient manner. Additionally, the court needed to determine whether substantial injustice would be suffered if the decision was left unreversed.

The court examined the criteria for granting leave to apply for internal review and the standard of review applicable to the Commissioner's decision. It found that the Commissioner had not properly exercised his discretion in granting the building remedy order, as he had failed to consider the statutory criteria for such an order and had not provided reasons for his decision. The court also held that a failure to build according to the provisions of a home building work contract does not necessarily constitute building work not carried out in a proper and proficient manner. Finally, the court found that substantial injustice would be suffered if the decision was left unreversed, as the applicants would be forced to undertake costly repairs to their home.

The court allowed the appeal and granted leave to apply for internal review. It quashed the Commissioner's decision and remitted the matter to the Commissioner for reconsideration in accordance with the court's reasons. The court ordered that the Commissioner consider the statutory criteria for a building remedy order and provide reasons for his decision. It also directed that the Commissioner consider whether a failure to build according to the provisions of a home building work contract constitutes building work not carried out in a proper and proficient manner.

Orders