KBE CONTRACTING PTY LTD and MAWER & ANOR [2007] WASAT 210

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2007] WASAT 210
Act:	BUILDERS' REGISTRATION ACT 1939 (WA)
Case No:	CC:1602/2006	Heard:	23 MAY 2007
Coram:	MR C RAYMOND (SENIOR MEMBER) MS J HAWKINS (MEMBER)	Delivered:	23/08/07
No of pages:	26	Judgment Part:	1 of 1
Result:	Application for review successful in part
Category:	B
PDF Version

Parties:	KBE CONTRACTING PTY LTD MARK MAWER PAULA SAMIOTIS
Catchwords:	Builders' Registration Act 1939 (WA) Review of Building Disputes Tribunal decision Section 15A of Home Building Contracts Act 1991 (WA) Representations made by builder's salesman Effect of disclaimer in building contract Whether conduct of builder's salesman constituted misleading and deceptive conduct of builder Whether competent for Building Disputes Tribunal to award damages for emotional stress
Legislation:	Builders' Registration Act 1939 (WA), s 13 Home Building Contracts Act 1991 (WA), s 15, s 15A, s 17, s 17(2), s 17(3), s 17(4), s 17(4)(c), s 17(4)(c)(i) Interpretation Act 1984 (WA), s 18 Small Claims Tribunal Act 1974 (WA) State Administrative Tribunal (Conferral of Jurisdiction) Amendment Act 2004 (WA) State Administrative Tribunal Act 2004 (WA), s 27 Trade Practices Act 1974 (Cth), s 52, s 82, s 84(2)
Case References:	AL Underwood Ltd v Bank of Liverpool; AL Underwood Ltd v Barclays Bank [1924] 1 KB 775 Baltic Shipping Co v Dillon (1993) 176 CLR 344 Boncristiano v Lohmann [1998] 4 VR 82 Builders' Registration Board and Ongarezos [2006] WASAT 53 Butcher & Anor v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592 Hadley v Baxendale (1854) 9 Exch 341 Hall Brothers SS Co Ltd v Young [1939] 1 KB 748 Mustac v Medical Board of WA [2007] WASCA 128 Parker v South Eastern Railway Co (Ticket Case) (1877) 2 CPD 416 Phoenix Assurance Co Ltd v Berechree (1906) 3 CLR 946 Tame v State of New South Wales; Annetts & Anor v Australian Stations Pty Ltd (2002) 211 CLR 317 Tangent Nominees Pty Ltd and Edwards & Anor [2006] WASAT 245 Thorpe v Lochel & Ors [2005] WASCA 85 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 Vernon & Anor v Ashmy Pty Ltd (Unreported, Western Australian District Court; D970022; 23 January 1997) Walplan Pty Ltd v Wallace (1985) 8 FCR 27 Zoneff v Elcom Credit Union Ltd (1990) 94 ALR 445
Orders	1. The decision of the Building Disputes Tribunal reflected in an order to pay No 37/2006-07 dated 13 September 2006 is varied by deleting par 1 and substituting the following:,"1. That KBE Consulting Pty Ltd within 14 days pay:,(a) to Mark Mawer and Paula Samiotis the sum of $1572.00 being:,repayment of deposit $1500.00,interest thereon from 20 December 2005 to 12 September 2006 at 6% $72.00,(b) to Mark Mawer damages $500.00,in relation to patio contract 30199;",and the application for review is to that extent upheld.,2. The application for review is otherwise dismissed.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : BUILDERS' REGISTRATION ACT 1939 (WA)

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.

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Details

Case: [2007] WASAT 210
Decision Date: 23 AUGUST 2007

CaseChat Overview and Summary

In the case of KBE Contracting Pty Ltd and Mawer & Anor, the dispute was before the court regarding the interpretation and application of certain sections of the Builders' Registration Act 1939 (WA) and the Home Building Contracts Act 1991 (WA). The primary issue was whether the conduct of a builder's salesman constituted misleading and deceptive conduct, which would render the builder liable under the Act. Additionally, the court examined whether the Building Disputes Tribunal was competent to award damages for emotional stress in such cases.

The legal issues at hand required the court to determine whether representations made by the builder's salesman could be attributed to the builder and if those representations constituted misleading and deceptive conduct. Furthermore, the court had to consider whether the Building Disputes Tribunal had the authority to award damages for emotional distress resulting from the alleged misleading and deceptive conduct. These issues were pivotal in assessing the liability of the builder under the relevant legislation and the scope of remedies available to the aggrieved party.

In its reasoning, the court found that the conduct of the builder's salesman did not amount to misleading and deceptive conduct attributable to the builder. The court emphasised that the disclaimer in the building contract was effective and served to limit the builder's liability for the salesman's actions. Additionally, the court held that the Building Disputes Tribunal did not have the jurisdiction to award damages for emotional stress, as such damages were not explicitly provided for under the Act. Consequently, the decision of the Building Disputes Tribunal was varied to reflect these findings.

The final orders of the court mandated the variation of the Building Disputes Tribunal's decision to exclude the award of damages for emotional stress and to clarify that the builder was not liable for the salesman's conduct under the provisions of the Act. The court's decision underscored the importance of contractual disclaimers and the limited scope of remedies available in disputes concerning building contracts.

Orders

Orders of the court

1. The decision of the Building Disputes Tribunal reflected in an order to pay No 37/2006-07 dated 13 September 2006 is varied by deleting par 1 and substituting the following:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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