Jensen and Pyramid Constructions (WA) Pty Ltd
[2017] WASAT 11
•11 JANUARY 2017 AND AMENDED ON 1 MARCH 2017 PURSUANT TO s 83(1)(b) OF THE STATE ADMINISTRATIVE TRIBUNAL ACT 2004 (WA)
JENSEN and PYRAMID CONSTRUCTIONS (WA) PTY LTD [2017] WASAT 11
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 11 | |
| BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA) | |||
| Case No: | CC:529/2016 | 4 AND 5 OCTOBER 2016 | |
| Coram: | MR C RAYMOND (SENIOR SESSIONAL MEMBER) MR J FISHER (SENIOR SESSIONAL MEMBER) | 11/01/17 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Remedial work order issued by consent in respect of one complaint item Proceedings otherwise dismissed | ||
| B | |||
| PDF Version |
| Parties: | PETER JENSEN MELISSA JENSEN PYRAMID CONSTRUCTIONS (WA) PTY LTD |
Catchwords: | Building Services (Complaint Resolution and Administration) Act 2011 (WA) Complaints by individual lot owners in strata scheme and by strata company in respect of same alleged faulty and unsatisfactory regulated building services Whether applicant or strata company appropriate complainant |
Legislation: | Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5(1), s 11(1)(d) Strata Titles Act 1985 (WA), s 17, s 33 |
Case References: | The Owners of Strata Plan 57895 and Pyramid Constructions (WA) Pty Ltd [2017] WASAT 4 |
Orders | 1. It is ordered by consent that:,(a) Pursuant to s 36(1)(a) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), the respondent must on or before 7 March 2017 at Lot 18 of the strata scheme known as Urbano Uno, 128 Brown Street, East Perth, carry out the following remedial work:,Complaint item 18.7: Kitchen Rangehood (Fisher and Paykel) installed without the required recirculating air filters and not in accordance with the building licence. ,Action required: Block off ceiling opening, unblock air vents and amend electrics as required.,(b) The respondent must within the time frame stated in (1)(a) above make good any damage resulting from compliance or attempted compliance with order (1)(a). ,2. The proceedings are otherwise dismissed. |
Summary | The applicants, as owners of a lot together with nine other lot owners in a strata scheme comprising 24 lots, lodged complaints with the Building Commissioner under s 5(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) against the respondent. The strata company had lodged identical complaints.,The Tribunal found in related proceedings, The Owners of Strata Plan 57895 and Pyramid Constructions Pty Ltd [2017] WASAT 4, that the strata company was entitled to advance the complaints made in these proceedings as relating to common property, save in respect of one item of complaint, and consequently that the applicants were not entitled to advance the same claims which were accordingly dismissed. In respect of one item of complaint the Tribunal issued a remedial work order by consent. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA) CITATION : JENSEN and PYRAMID CONSTRUCTIONS (WA) PTY LTD [2017] WASAT 11 MEMBER : MR C RAYMOND (SENIOR SESSIONAL MEMBER)
- MR J FISHER (SENIOR SESSIONAL MEMBER)
- MELISSA JENSEN
Applicants
AND
PYRAMID CONSTRUCTIONS (WA) PTY LTD
Respondent
Catchwords:
Building Services (Complaint Resolution and Administration) Act 2011 (WA) Complaints by individual lot owners in strata scheme and by strata company in respect of same alleged faulty and unsatisfactory regulated building services Whether applicant or strata company appropriate complainant
Legislation:
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5(1), s 11(1)(d)
Strata Titles Act 1985 (WA), s 17, s 33
Result:
Remedial work order issued by consent in respect of one complaint item
Proceedings otherwise dismissed
Summary of Tribunal's decision:
The applicants, as owners of a lot together with nine other lot owners in a strata scheme comprising 24 lots, lodged complaints with the Building Commissioner under s 5(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) against the respondent. The strata company had lodged identical complaints.
The Tribunal found in related proceedings, The Owners of Strata Plan 57895 and Pyramid Constructions Pty Ltd [2017] WASAT 4,that the strata company was entitled to advance the complaints made in these proceedings as relating to common property, save in respect of one item of complaint, and consequently that the applicants were not entitled to advance the same claims which were accordingly dismissed. In respect of one item of complaint the Tribunal issued a remedial work order by consent.
Category: B
Representation:
Counsel:
Applicants : Mr P Jensen (In Person and as Agent)
Respondent : Mr R Shaw
Solicitors:
Applicants : N/A
Respondent : Lavan Legal
Case(s) referred to in decision(s):
The Owners of Strata Plan 57895 and Pyramid Constructions (WA) Pty Ltd [2017] WASAT 4
Introduction
1 The applicants lodged a complaint with the Building Commissioner pursuant to s 5(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) relating to a regulated building service provided by Pyramid Constructions (WA) Pty Ltd in the construction of a multistorey strata titled apartment building at 128 Brown Street, East Perth. The strata scheme is known as Urbano Uno. The applicants are the owners of strata Lot 18 being one of the apartments in the development which is described in strata plan 57895 registered on 27 January 2016. The strata company, incorporated on such registration occurring, being the Owners of Strata Plan 57895 (strata company), lodged a complaint with the Building Commissioner in respect of the same items of complaint and in respect of many other items of complaint.
2 It appears the applicants and nine other lot owners lodged complaints completely overlapping the items of complaint made by the strata company to avoid the risk of any complaint item failing by reason of lack of standing. Under s 33 of the Strata Titles Act 1985 (WA) (ST Act) where the proprietors of lots the subject of a scheme are jointly entitled to take proceedings the strata company is expressly empowered to take the proceedings. The owners of such lots are entitled to jointly take proceedings in respect of the common property included within the scheme as common property is held by the proprietors as tenants in common in shares proportional to their unit entitlements (s 17 ST Act). On the other hand, a strata company has no standing to make a claim in respect of damage to a lot the title of which is held by the proprietor thereof.
3 All of these complaints were referred by the Building Commissioner to the Tribunal for determination pursuant to s 11(1)(d) of the BSCRA Act.
4 The 11 separate matters were listed for hearing over three days commencing on 4 October 2016. Due primarily to the extent of agreement reached by the expert witnesses in conferral prior to the hearing in accordance with the Tribunal's usual practices, the hearing was concluded in two days. The matters had not been consolidated. At the commencement of the hearing the Tribunal directed that the matters be heard together and that the evidence be evidence in all matters.
5 In the strata company proceedings, The Owners of Strata Plan 57895 and Pyramid Constructions (WA) Pty Ltd [2017] WASAT 4, the Tribunal dealt with all of the complaints duplicated in these proceedings relating to Lot 18 owned by the applicants and we incorporate by reference the reasons for decision in that matter. The strata company has been ordered in those proceedings to give a copy of the Tribunal's reasons for decision to all applicants who have applied for orders in respect of the same items of complaint, within seven days of receipt of those reasons for decision.
6 In relation to complaint item 18.1, relating to water damage to the living room ceiling, the strata company and respondent advised the Tribunal during the hearing that a settlement of that issue had been reached. Mr Jensen confirmed the settlement. Consequently an order was made by consent in terms giving effect to that settlement. The Tribunal found the strata company was entitled to a remedial work order in respect of one other item of complaint. The remaining items of complaint were dismissed. As the Tribunal accepted that the strata company could advance all claims, save one other complaint item 18.7, as they related to common property it follows that the applicants are not entitled to do so in their own right, so that the complaints made by them, other than complaint item 18.7, fall to be dismissed.
7 In respect of complaint item 18.7, which relates to the rangehood installed in the kitchen, the parties consented to the terms of a remedial work order to be carried out in conjunction with any other remedial work which the respondent would be obliged to carry out at the strata parcel in respect of complaints made by the strata company. The order to be issued will require the work to be completed within the same time frame as reflected in the order to be issued in the strata company proceedings referred to above.
Orders
The Tribunal will accordingly issue orders:
1. It is ordered by consent that:
(a) Pursuant to s 36(1)(a) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), the respondent must on or before 7 March 2017 at Lot 18 of the strata scheme known as Urbano Uno, 128 Brown Street, East Perth, carry out the following remedial work:
Complaint item 18.7: Kitchen Rangehood (Fisher and Paykel) installed without the required recirculating air filters and not in accordance with the building licence.
Action required: Block off ceiling opening, unblock air vents and amend electrics as required.
(b) The respondent must within the time frame stated in (1)(a) above make good any damage resulting from compliance or attempted compliance with order (1)(a).
2. The proceedings are otherwise dismissed.
I certify that this and the preceding [7] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR C RAYMOND, SENIOR SESSIONAL MEMBER
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