KELLER CONSTRUCTIONS (WA) PTY LTD -v- BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA [2011] WASCA 163

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WASCA 163
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:84/2010	Heard:	3 MARCH 2011
Coram:	PULLIN JA NEWNES JA HALL J	Delivered:	28/07/11
No of pages:	20	Judgment Part:	1 of 1
Result:	Appeal allowed
Category:	A
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Parties:	KELLER CONSTRUCTIONS (WA) PTY LTD BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA
Catchwords:	Building and construction Builders' Registration Act 1939 (WA), s 4 Appellant engaged to construct footings for 67 prefabricated transportable buildings and attach transportable buildings to the footings Whether contract or engagement to construct a 'building' Whether attaching to footings was to 'add to' or 'alter' transportable buildings Meaning of 'construct' Whether transportable building a 'building of a permanent nature' before or after attached to footings Meaning of 'building of a permanent nature'
Legislation:	Builders' Registration Act 1939 (WA), s 4
Case References:	Builders' Registration Board of Western Australia v Roroka Pty Ltd (Unreported, WASC, Library No 8776, 25 March 1991) Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Robinson v Local Board for the District of Barton-Eccles, Winton & Monton (1883) 8 App Cas 798

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : KELLER CONSTRUCTIONS (WA) PTY LTD -v- BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA [2011] WASCA 163 CORAM : PULLIN JA

NEWNES JA

HALL J

HEARD : 3 MARCH 2011 DELIVERED : 28 JULY 2011 FILE NO/S : CACR 84 of 2010 BETWEEN : KELLER CONSTRUCTIONS (WA) PTY LTD

Appellant

AND

BUILDERS' REGISTRATION BOARD OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MURRAY J

Citation : BUILDERS' REGISTRATION BOARD OF WA -v- KELLER CONSTRUCTIONS (WA) PTY LTD [2010] WASC 119

File No : SJA 1004 of 2010

(Page 2)

Catchwords:

Building and construction - Builders' Registration Act 1939 (WA), s 4 - Appellant engaged to construct footings for 67 prefabricated transportable buildings and attach transportable buildings to the footings - Whether contract or engagement to construct a 'building' - Whether attaching to footings was to 'add to' or 'alter' transportable buildings - Meaning of 'construct' - Whether transportable building a 'building of a permanent nature' before or after attached to footings - Meaning of 'building of a permanent nature'

Legislation:

Builders' Registration Act 1939 (WA), s 4

Result:

Appeal allowed

Category: A

Representation:

Counsel:

Appellant : Mr P J Urquhart

Respondent : Ms L B Black

Solicitors:

Appellant : Hotchkin Hanly

Respondent : Builders' Registration Board

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

Builders' Registration Board of Western Australia v Roroka Pty Ltd (Unreported, WASC, Library No 8776, 25 March 1991)
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Robinson v Local Board for the District of Barton-Eccles, Winton & Monton (1883) 8 App Cas 798

(Page 3)

1 JUDGMENT…

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

AGLC: Keller Constructions (WA) Pty Ltd v Builders' Registration Board of Western Australia [2011] WASCA 163
Case: [2011] WASCA 163
Decision Date: 28 JULY 2011

CaseChat Overview and Summary

The Builders' Registration Board of Western Australia sought a declaration that Keller Constructions (WA) Pty Ltd was required to be registered under the Builders' Registration Act 1939 (WA). The Board took the view that Keller had engaged in the construction of a building by attaching prefabricated transportable buildings to footings. Keller appealed against this decision, contending that the engagement was not the construction of a building within the meaning of the Act. The Full Court of the Supreme Court of Western Australia was required to determine the precise nature of the engagement and whether it constituted the construction of a building under the Act.

The court considered whether the engagement constituted a contract or engagement to construct a 'building', and whether attaching the transportable buildings to the footings constituted 'adding to' or 'altering' the buildings. The court held that the engagement was not the construction of a building because the footings were not part of the transportable buildings, and the attachment of the buildings to the footings did not amount to adding to or altering the buildings. The court also held that the transportable buildings were not buildings of a permanent nature either before or after being attached to the footings. The court found that the engagement did not involve the construction of a building within the meaning of the Act.

The appeal was allowed, and the declaration sought by the Board was set aside. The decision of the Supreme Court of Western Australia was affirmed.

Orders

Orders of the court

Appeal allowed

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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