KAMPANELLI and Hutgood Pty Ltd ACN 081 899 158

[2006] WASAT 364

KAMPANELLI and HUTGOOD PTY LTD ACN 081 899 158 [2006] WASAT 364

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2006] WASAT 364
Act:	BUILDERS' REGISTRATION ACT 1939 (WA)
Case No:	CC:703/2006	Heard:	8 DECEMBER 2006
Coram:	MR C RAYMOND (SENIOR MEMBER)	Delivered:	14/12/06
No of pages:	14	Judgment Part:	1 of 1
Result:	Application partially successful
Category:	B
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Parties:	ANTHEA KAMPANELLI HUTGOOD PTY LTD ACN 081 899 158
Catchwords:	Builders Registration Act 1939 (WA) Application for extension of time and for leave to review decision of Building Disputes Tribunal Criteria for extension of time Evidence not supporting Dispute Tribunals findings Appropriate course to be followed Invitation to Disputes Tribunal to reconsider decision pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA)
Legislation:	Builders' Registration Act 1939 (WA), s 12A(1), s 12A(1a) Home Building Contracts Act 1991 (WA), s 17 State Administrative Tribunal Act 2004 (WA), s 31
Case References:	State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liquidation) & Ors [1999] HCA 3 (9 February 1999) Tangent Nominees Pty Ltd and Edwards & Anor [2005] WASAT 119 Tangent Nominees Pty Ltd and Edwards & Anor [2006] WASAT 243 Honest Holdings Pty Ltd and Loly & Anor [2006] WASAT 189 Wilson v Metaxas [1989] WAR 285 Wing Luck Foods v Lay Choo Lim [1989] WAR 358 Well Holdings Pty Ltd v Agostino [2001] WADC 174 Lai & Anor and Costa [2006] WASAT 117
Orders	On the application determined by Senior Member Clive Raymond on 15 December 2006, it is ordered that:,1. The time for the bringing of this application for leave to review the decision of the Building Disputes Tribunal made on 14 February 2006 is extended.,2. The application for leave to review the said decision, insofar as it relates to the issue concerning the differing wall heights in the games room erected by the respondent is adjourned pending the Building Disputes Tribunal's reconsideration of that issue pursuant to the invitation to do so made in order 3 below.,3. Pursuant to s 31 of the State Administrative Tribunal Act 2004, the Building Disputes Tribunal is invited to reconsider its decision made on 14 February 2006, insofar as that decision relates to the applicant's claim concerning differing wall heights in the games room constructed by the respondent.,4. The application for leave to review the said decision is in all other respects dismissed.,5. The costs of the application, if any should be awarded, are reserved.,6. Within 10 days of the date of this order:,(a) the applicant must serve a copy of this order together with a copy of the Tribunal's reasons for decision dated 15 December 2006 on the Registrar of the Building Disputes Tribunal;,(b) file a declaration of service in accordance with (a) above on the Tribunal and serve a copy thereof on the respondent.,7. The proceedings are otherwise adjourned to a directions hearing on 22 March 2007 to enable the parties to provide the Tribunal with a status report as to the progress of the contemplated proceedings in the Building Disputes Tribunal.,8. The parties have liberty to apply to anticipate the above directions hearing if the need to do so arises.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : BUILDERS' REGISTRATION ACT 1939 (WA) CITATION : KAMPANELLI and HUTGOOD PTY LTD ACN 081 899 158 [2006] WASAT 364 MEMBER : MR C RAYMOND (SENIOR MEMBER) HEARD : 8 DECEMBER 2006 DELIVERED : 15 DECEMBER 2006 FILE NO/S : CC 703 of 2006 BETWEEN : ANTHEA KAMPANELLI

Applicant

AND

HUTGOOD PTY LTD ACN 081 899 158
Respondent

Catchwords:

Builders Registration Act 1939 (WA) - Application for extension of time and for leave to review decision of Building Disputes Tribunal - Criteria for extension of time - Evidence not supporting Dispute Tribunals findings - Appropriate course to be followed - Invitation to Disputes Tribunal to reconsider decision pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA)

Legislation:

Builders' Registration Act 1939 (WA), s 12A(1), s 12A(1a)

Home Building Contracts Act 1991 (WA), s 17
State Administrative Tribunal Act 2004 (WA), s 31

(Page 2)

Result:

Application partially successful

Category: B

Representation:

Counsel:

Applicant : Mr S Paonni
Respondent : Mr J Scurria

Solicitors:

Applicant : Sam Paonni
Respondent : Joe Scurria & Associates

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

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liquidation) & Ors [1999] HCA 3 (9 February 1999)
Tangent Nominees Pty Ltd and Edwards & Anor [2005] WASAT 119
Tangent Nominees Pty Ltd and Edwards & Anor [2006] WASAT 243

Case(s) also cited:

Honest Holdings Pty Ltd and Loly & Anor [2006] WASAT 189
Wilson v Metaxas [1989] WAR 285
Wing Luck Foods v Lay Choo Lim [1989] WAR 358
Well Holdings Pty Ltd v Agostino [2001] WADC 174
Lai & Anor and Costa [2006] WASAT 117

(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 The applicant sought an extension of time and leave to review a decision of the Building Disputes Tribunal made on 14 February 2006.

2 The application was initially made by the applicant on her own behalf without the benefit of legal advice or representation. Although not clearly expressed in the application, the submissions filed, with the benefit of legal representation, demonstrated that the applicant was endeavouring to raise a number of issues that had never been canvassed before the Building Disputes Tribunal, or which were dependent on fresh evidence, which could have been available at the time of hearing. As no error on the part of the Building Disputes Tribunal could be demonstrated the applicant's counsel did not press those proposed grounds. The sole ground remaining related to the dismissal of a claim made based on the walls in a games room being of a different height. It became apparent on an analysis of the transcript and the contractual documents including plans that the Building Disputes Tribunal had failed to understand properly the evidence before it. Because the Building Disputes Tribunal wrongly concluded that the height differential was caused by the applicant requiring changes to the works, the true issue had never been determined. The Tribunal concluded that it was appropriate in these circumstances, consistent with the principles expressed by the High Court in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liquidation) & Ors [1999] HCA 3 (9 February 1999) for it to grant leave to review the decision, provided that it was also appropriate to extend the time for the making of the application to the State Administrative Tribunal.

3 The Tribunal received additional submissions from the applicant after the hearing, in which the applicant sought to advance an additional ground for review, based on an alleged failure of the Building Disputes Tribunal to apply the terms of the contract, relating to the installation of ceiling lining. The Tribunal analysed the evidence before the Building Disputes Tribunal and the steps which had been taken to identify the issues for determination and concluded that this was not raised before Building Disputes Tribunal as an issue for determination. Accordingly, the Tribunal found that no error or sufficient doubt in the decision was established and accordingly the Tribunal declined to grant leave in respect of this proposed ground.

(Page 4)

4 As the applicant indicated to the Tribunal that she intended to lodge fresh claims in the Building Disputes Tribunal raising matters which had not previously been dealt with, the Tribunal considered that the appropriate course was to withhold the grant of leave at this stage in relation to the wall height issue and instead to invite the Building Disputes Tribunal to reconsider its decision pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA). That would avoid the parties having to go to a final review hearing on the matter while enabling the Building Disputes Tribunal to deal with all matters in issue between the parties. Orders were made to this effect and also reserving the parties rights in respect of costs.

The application

5 On 16 May 2006, the applicant (Owner) lodged an application with this Tribunal (SAT or Tribunal) seeking to review a decision made by the Building Disputes Tribunal (Disputes Tribunal) on 9 February 2006. No oral reasons for the decision were given but on 14 February 2006 the Disputes Tribunal issued an Order to Remedy No 334/2005-06 and an Order to Pay No 120/2005-06 against the respondent (Builder) in favour of the Owner. The Order to Remedy related to only one of several complaints made by the Owner which were dismissed. The Order to Pay was for an amount of $300. It is common cause that the Builder has complied with the Order to Remedy and has tendered payment pursuant to the Order to Pay, which the owner refused.

6 On 19 July 2006, in response to the Owner's request, the Disputes Tribunal published its written reasons for the decision.

7 The application to this Tribunal was completed by the Owner in person. The application is difficult to understand and the grounds relied upon raised the availability of evidence, not tendered before the Disputes Tribunal, which it is contended would result in a different outcome. Reference was made to a request for an extension of time to bring the application and appropriate orders were formulated and added to the application by way of an amendment made at a directions hearing on 1 June 2006. The matter was programmed to a hearing of the application for an extension of time and for leave to review the Disputes Tribunal's decision. At some time prior to the hearing Mr Paonni commenced to represent the Owner. No application was made to amend the orders sought by the Owner nor the grounds upon which she relied, but the submissions filed by Mr Paonni on her behalf served to clarify the grounds upon which a review was sought. At the hearing of the

(Page 5)

application it was conceded that save in one respect, the grounds relied upon related to matters which had not been raised at any time before the Disputes Tribunal or in respect of which it was sought to rely on evidence which was available but had not been put before the Disputes Tribunal. As no preliminary notice had been given in respect of the matters not raised, they are not within the ambit of matters which can be dealt with by SAT on review: see Tangent Nominees Pty Ltd and Edwards & Anor [2006] WASAT 243. Further, as no error could be demonstrated in respect of issues to which the further evidence related, the applicant did not press those issues. That left for determination only one issue, namely whether the Disputes Tribunal had erred in failing to provide a remedy in respect of a complaint that two side walls of the structure constructed by the Builder differed in height by 12 centimetres. The hearing before SAT was conducted on that basis. The parties joined issue thereon and on whether or not the owner should be entitled to an order extending time for the bringing of the application.

8 As one of the criteria for the grant of an extension is whether or not the Owner has an arguable case, it is convenient to deal firstly with the merits of the proposed review.

The merits of the proposed review

9 On 23 July 2001 the parties entered into a written contract for the construction of two prefabricated rooms by way of an extension to the Owner's dwelling. The larger room was to be approximately 12 metres by 6 metres and was to abut the eastern verandah of the dwelling for a distance of about 6 metres, with the 12 metre length running approximately north to south, so that it extended approximately 6 metres from the north-east corner of the dwelling. The smaller room was to be placed against the first room and was to join the verandah on the northern side of the dwelling as well. This room overlapped the larger room by approximately 4 metres on the north-east corner of the dwelling and ran approximately 5 metres to the west. For the length of this overlap of 4 metres a box gutter was fitted between the two rooms as the pitch of the two roofs converged into the gutter. The two rooms therefore abutted the northern verandah for a distance of 5 metres and the western verandah for 6 metres and met on the north-west corner of the verandah, so that the two rooms together formed a lopsided "T" with the top of the "T" being much longer and wider than its stem.

10 On or about 27 May 2002, the parties entered into a further contract in terms of which the Builder supplied the prefabricated components for

(Page 6)

another 14 metre by 5 metre room. The smaller of the above two sheds was removed and the new room was put in the same position, running 14 metres along the northern verandah of the dwelling. Whereas the centre line of the roof ridges of the original two rooms had both run north-south, the ridgeline in respect of the new shed ran east-west so that a gable end was formed where it met the larger of the two original rooms. Consequently, the pitch of this new room did not fall into the box gutter to which reference has already been made. It was common cause before SAT that the Builder had not been responsible for the removal of the smaller room and the erection of the larger new room.

11 The larger of the earlier two rooms was referred to before the Disputes Tribunal and in the proceedings before SAT as a games room and it and the smaller room were also referred to in the Disputes Tribunal's reasons for decision as the larger and smaller patio.

12 The Disputes Tribunal's reasons in relation to this issue are as follows:

"It was common cause that the smaller patio constructed by the respondent (Builder - parenthesis added) as part of the first contract dated 23 July 2001 for $15,815 was removed and a larger patio constructed by the respondent at the complainant's request pursuant to a second contract dated 27 May 2002 for $3,000. The ridge of the larger patio runs in the opposite direction (ie perpendicular to the games room ridge and not parallel as in the case of the smaller patio) and there was then no need for a box gutter to run along the length of the games room to join onto the larger patio. The Inspector suggested that the box gutter was made redundant and Mr Sucking [sic] (the Owner's engineer – parenthesis added) also says that the difference in wall height was caused by the box gutted [sic] being made redundant (foil [sic] 44, Booklet). The complainant never addressed this issue. She maintained that the box gutter was always required.

The Tribunal has no doubt that the difference in height of the walls of the games room was caused by the box gutter being made redundant when the complainant directed the respondent to remove the newly erected smaller patio and replace it with the larger patio.

(Page 7)

The reason why the complainant altered the plans and removed the smaller patio and replaced it with the larger patio is not clear.

The Inspector did indicate in his report that:


'The truss could have been modified in a manner that would suit the owners [sic] requirements.'

However, the Inspector did not say how that could have been achieved."

13 On their face, the above represent findings of fact based on the Disputes Tribunal's assessment of the evidence given to it by witnesses. While respect must be shown for the advantages of the trial judge in observing witnesses give their evidence, the traditional view, strongly reaffirmed by the High Court in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liquidation) & Ors [1999] HCA 3 (9 February 1999) emphasises that appeal courts must make up their own mind and in conducting appeals on the facts by way of re-hearing, must draw inferences from the facts for themselves.

14 In this instance, as a result of the exchanges which took place during the hearing, it became common cause between the parties that the evidence did not support the above findings and that the Disputes Tribunal had misunderstood the effect of that evidence.

15 The transcript of evidence and the two contracts, to which we have referred, entered into July 2001 and May 2002 reflect that the first contract included installation, while the second contract was for supply of materials only. Mr R Simpson, the company manager for the Builder, stated at page 9 of the transcript that the second contract was supply only and that "because of the change in the patio that changed the aspect in view of the lower eaves. The box gutter is no longer really necessary. But it was already in so it was already there and could not be changed". Whereas the first contract includes progress payments after the delivery of materials to site, that is, a final payment of $5815, the second contract expressly states that it is "Our price to supply the above". At page 29 of the transcript the Owner testified, although not particularly clearly, to an arrangement whereby she could contract direct with the Builder's tradespersons to carry out the installation if she wished. She testified that that person wanted $600 – presumably to install the second room and she made reference to her son helping him carry out the work and that her

(Page 8)

husband also assisted. The documentation demonstrates that there was a second supply only contract.

16 The reference to the box gutter being redundant was in itself a red herring. When one properly understands the changes which had been made the Owner's evidence was supported by the Builder that the box gutter remained. It continued to serve the games room roof but was "redundant" in the sense that it was not required for the new room for which materials had been supplied under the second contract. The reference in the reasons to "Mr Sucking [sic] also says that the difference in wall height was caused by the box gutted [sic] being made redundant" was wrong. At folio 44 of the Disputes Tribunal's book of papers, a letter from Mr Suckling appears dated 8 November 2005. In the last bullet point of that letter he states:

"The wall heights for the sidewalls of the extension were not the same, and were unsupported. The difference in heights as explained is due to the gutter location at the junction to existing."

17 It will be seen Mr Suckling makes no reference at all to the box gutter being made redundant. The box gutter was required as part of the first contract. It was because the box gutter was incorporated in those works that the walls are of a different height. The Dispute Tribunal's finding that the difference in height of the walls was caused by the box gutter being made redundant reflects a failure to appreciate the true effect of the design of the extensions as reflected in the drawings which were before the Disputes Tribunal. The reference to the gutter being "redundant" was first made by the Builders' Registration Board inspector, in a report dated 30 June 2005. The inspector there stated: "(T)he difference in between the walls was to satisfy the function of installing a box gutter between two adjoining roofs, which subsequently became redundant". The important statement there being made is that it was the installation of the box gutter which caused the difference in height, not the fact that subsequently it became "redundant" because a box gutter was no longer required to serve two roofs – although it obviously continued to perform its function in relation to the games room roof.

18 The issue therefore which the Disputes Tribunal was required to address, but did not, was whether the difference in height in the walls, as the games room was originally constructed, entitled the Owner to any remedy either under s 12A(1), or s 12A(1a) of the Builders Registration Act 1939 (WA) (BR Act), or possibly even as a breach of contract under

(Page 9)

s 17 of the Home Building Contracts Act 1991 (WA) (HBC Act). It is noted that the Inspector stated in his above report that the problem of the height difference could have been resolved by treating both ends of the trusses in the same manner. It was also stated that "the walls referred to have been built in accordance with the scope of the drawings and within reasonable tolerances thereto".

19 There was therefore, on the face of it, a contradiction between the evidence of the Owner, on oath, that the ceilings were at heights which differed by 12 centimetres, and that of the Inspector. The Inspector was not called to give evidence. There were statements made by Mr Simpson which, at best for the owner, corroborate her evidence on this issue, and at worst, are equivocal. At page 7 of the transcript Mr Simpson referred to a discrepancy of 200 millimetres from one side of the building to the other whereas at page 38 he referred to "a drop on one side of the building by about 150-200 millimetre, whatever it is, to allow a box gutter to go through to cover the water from both buildings' roofs".

20 There is sufficient doubt as to the decision of the Disputes Tribunal in relation to this issue as to meet the requirement for leave to review to be granted: see Tangent Nominees Pty Ltd and Edwards & Anor [2005] WASAT 119 in which the relevant criteria are set out. Further, if the work in question constitutes either a breach of contract, or has not been carried out in a proper and workmanlike manner, for either of the reasons set out in s 12A(1) and s 12A(1a) of the BR Act, consideration needs to be given to whether the Owner is entitled to a remedy – subject, to consideration of whether an extension of time should be granted for the bringing of the application. That will be considered after first addressing additional submissions received from the applicant's counsel on 11 December 2006, subsequent to the commencement of the preparation of these reasons for decision.

21 The Tribunal informed the Builder's solicitors that it was not necessary to respond to these additional submissions, for the reasons which follow. It is submitted that at the hearing before the Disputes Tribunal, the Owner contended that the Builder was contractually responsible for the lining of the ceiling to the room, and that the ceiling was meant to be lined with Hardiflex. Reference was made to the first contract dated 23 July 2001 which contains a reference "12.32 x 7.0 (span) with 6.0m portion of length lined with Hardiflex and Astrofoil insulation". It is submitted that the Disputes Tribunal failed to give adequate consideration to the documentary evidence, being the contract referred to and an earlier quotation document dated 13 July 2000.

(Page 10)

22 At the commencement of the hearing the Disputes Tribunal adopted the commendable course of clarifying with the Owner the issues that were required to be determined. This issue was not identified by the Owner. Although there were later references in the transcript to the lining of the ceiling they were in the context of an identified claim that the central truss had been modified by cutting out the lower cords. It was asserted that this had resulted in the wall being unstable and it had not been properly fixed. That was one of the issues identified. At page 24 of the transcript the Owner then identified that an arrangement had been made to replace the Hardiflex lining with gyprock for aesthetic reasons. There was no indication by the Owner that she was advancing any particular claim in respect thereof.

23 The issue was never dealt with by Mr Simpson for the Builder as if it was a current claim being made by the Owner. Commencing at page 38 of the transcript Mr Simpson testified as to his understanding of the contract and in that context referred to the stud walls which were to be lined with weatherboard. He stated there was to be no internal lining – which is taken to be a reference to the walls, but even if that is wrong, it formed no more than a statement of his understanding as to the contract.

24 The Dispute Tribunal's reasons for decision reflect that the issues which it identified for determination were as listed in the Board Inspector's report dated 11 August 2005 (folio 32 of the Dispute Tribunal's hearing book) (see pages 2 and 5 of the reasons for decision). In addition it identified that the subject matter of a fresh complaint lodged on 26 April 2005, relating to the differential wall heights, also required to be determined.

25 The Disputes Tribunal then set out its conclusions in respect of the matters identified commencing at page 10 of its reasons for decision and again the complaint items referred to relate to the Inspector's report. At page 7 of the reasons the Disputes Tribunal noted that there was considerable confusion in the Owner's evidence and stated that in respect "of the complaint that the games room was not constructed according to the complainant's (Owner's) instruction, the complainant explained that what she wanted was a raked ceiling with exposed 150 x 150mm beams. There is no evidence or reliable information put before the Tribunal to suggest that the respondent was obliged to install a raked ceiling with or without exposed beams."

26 It is in that context that the Disputes Tribunal stated at page 11 of its reasons that it was not a term of the contract between the complainant and

(Page 11)

the respondent that the games room be constructed with a raked ceiling and exposed beams of 150 millimetre by 150 millimetre but stated also "and further it was not a terms [sic] of the contract that the respondent (Builder) line the ceiling of the games room."

27 The Tribunal considers that the Owner is endeavouring to raise an issue which was, in truth, not an issue before the Disputes Tribunal. The Disputes Tribunal went further than was necessary in its statement of conclusions by making a reference to the ceiling but was endeavouring to deal with an aspect of the Owner's evidence relating to whether the contract provided for a raked ceiling with exposed beams. The evidence does establish that the ceilings were lined with gyprock but again that was a matter of incidental significance.

28 It is noted that in the Owner's complaint form to the Disputes Tribunal the Owner raised for determination workmanship issues itemised in an engineering report and initially included as a contractual dispute a concern about the raked ceiling but then deleted that complaint and it was not dealt with in any of the subsequent reports provided by the Builders' Registration Board's inspector.

29 In these circumstances, the Tribunal is not satisfied that the Disputes Tribunal's decision is attended with sufficient doubt or that any substantial injustice would flow from a refusal to grant leave in respect of this issue and the Tribunal declines to do so.

Extension of time

30 The Tribunal accepts the Owner's explanation for the delay in commencing the application for review in this Tribunal, that she initially delayed while awaiting the Dispute Tribunal's reasons for decision, which she had requested. While this might not be accepted as an acceptable excuse where a party has had the benefit of legal advice, the Owner was then acting personally. It is not unreasonable that a layperson should follow this course. It is not considered significant, as submitted on behalf of the Builder, that the Owner did not amend the application after receipt of the Dispute Tribunal's reasons for decision.

31 The Builder could not point to any real prejudice if an extension of time was granted. It was submitted that the Builder had complied with the Order to Remedy, and might not have done, if the application had been made in good time. With respect, little prejudice is seen in complying with an order, which the Builder was, in any event, obliged to comply

(Page 12)

with. The Owner seeks to increase the Builder's obligations, not to decrease them.

32 The Tribunal accepts that the Owner has an arguable case, indeed it has been demonstrated, and the Builder did not contend to the contrary, that the Disputes Tribunal had not understood that the box gutter formed part of the original construction under the first contract and that it was the accommodation of the gutter thereunder, which resulted in the walls being of different height.

33 In these circumstances, it is concluded that an extension of time should be granted and an order will issue to that effect.

Appropriate orders

34 It is apparent that the Disputes Tribunal has not given proper consideration to the real issue as to why the original contract was performed by installing walls of a different height, contrary to the contract drawings which appear to show walls of the same height, and whether in any event, whether that result could have been avoided by alterations to the truss design. If conclusions are reached favourable to the Owner, consideration will then also need to be given to the appropriate remedy, in the circumstances.

35 In addition, the Owner has endeavoured to raise new matters before this Tribunal, which were never before the Disputes Tribunal. Faced with the jurisdictional difficulties resulting from that course, the Owner's counsel indicated that a preliminary notice could be provided to the Builder and fresh claims made before the Disputes Tribunal. Accordingly, counsel pressed that instead of proceeding to a final review on this issue, that the matter be referred back to the Disputes Tribunal. The vehicle for this course is provided by s 31 of the SAT Act, which permits the Tribunal to invite the decision-maker to reconsider the decision at any stage of a proceeding for a review. There are advantages in following this course because the Disputes Tribunal would be able to hold a directions hearing, at which to canvass how the issue is to be properly determined. Clearly, it is desirable that the Board's inspector be available to give evidence and the Owner may well wish to have an appropriate expert witness give evidence on her behalf. In any event, if additional claims are to be raised, it makes sense if it is practicable to do so for those claims to be dealt with at the same time.

36 In these circumstances, the Tribunal will withhold the granting of leave to review the Dispute Tribunal's decision in relation to the wall

(Page 13)

height issue, so that it can be properly considered and determined by the Disputes Tribunal. Any variation of the decision will thereafter become the subject of the proceedings for review, subject to leave being granted in respect thereof.

37 As agreed with the parties, any entitlement of either party to pursue a costs order should be preserved.

38 The Tribunal accordingly orders as follows:

1. The time for the bringing of this application for leave to review the decision of the Building Disputes Tribunal made on 14 February 2006 is extended.

2. The application for leave to review the said decision, insofar as it relates to the issue concerning the differing wall heights in the games room erected by the respondent is adjourned pending the Building Disputes Tribunal's reconsideration of that issue pursuant to the invitation to do so made in order 3 below.

3. Pursuant to s 31 of the State Administrative Tribunal Act 2004, the Building Disputes Tribunal is invited to reconsider its decision made on 14 February 2006, insofar as that decision relates to the applicant's claim concerning differing wall heights in the games room constructed by the respondent.

4. The application for leave to review the said decision is in all other respects dismissed.

5. The costs of the application, if any should be awarded, are reserved.

6. Within 10 days of the date of this order:


(a) the applicant must serve a copy of this order together with a copy of the Tribunal's reasons for decision dated 15 December 2006 on the Registrar of the Building Disputes Tribunal;

(b) file a declaration of service in accordance with (a) above on the Tribunal and serve a copy thereof on the respondent.


7. The proceedings are otherwise adjourned to a directions hearing on 22 March 2007 to enable the parties to provide

(Page 14)

the Tribunal with a status report as to the progress of the contemplated proceedings in the Building Disputes Tribunal.

8. The parties have liberty to apply to anticipate the above directions hearing if the need to do so arises.

I certify that this and the preceding [38] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR C RAYMOND, SENIOR MEMBER