Kettle and Benzie - [2012] WASAT 138

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)

CITATION: KETTLE and BENZIE [2012] WASAT 138

MEMBER: JUSTICE J A CHANEY (PRESIDENT)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 6 JULY 2012

FILE NO/S: CC 1789 of 2011

BETWEEN: JOHN KETTLE
SUSAN KETTLE
Applicants
AND
DANNY BENZIE
MICHELLE BENZIE TRADING AS SAXON CONSTRUCTIONS
Respondents

Catchwords:

Building Current proceedings Proceedings Building Disputes Tribunal Registrar's Order to Remedy Review of Building Disputes Tribunal Registrar's Order to Remedy Revocation of Building Disputes Tribunal Registrar's Order to Remedy

Legislation:

Builders' Registration Act 1939 (WA), s 12A(1), s 12A(4a), s 33A(1), s 33A(2), s 33A(3)
Building Code of Australia
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s (5), s 5(1), s 11(1)(d), s 36(1)(a), s 36(1)(b), s 107, s 133, s 134, s 134(1), s 134(2), s 134(3)
Building Services (Registration) Act 2011 (WA), s 107
Home Building Contracts Act 1991 (WA)

Result:

Application was partly successful and partly unsuccessful

Category: B

Representation:

Counsel:

Applicants: In person
Respondents : Mr A Searle

Solicitors:

Applicants: Self-represented
Respondents : Doyles Construction Lawyers

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

Capone and Ennis Construction Pty Ltd [2012] WASAT 21

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

On 8 November 2011, the Building Commissioner of Western Australia referred to the Tribunal three applications by Mr and Mrs Kettle against Mr and Mrs Benzie trading as Saxon Constructions. The applications had been made to the Building Disputes Tribunal pursuant to s 12A(1) of the Builders Registration Act 1939 (WA). Mr and Mrs Kettle had not been in a contractual relationship with Mr and Mrs Benzie. The Building Commissioner's referral was made pursuant to s 11(1)(d) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), which legislation repealed the whole of the Builders Registration Act 1939 (WA) on 29 August 2011 and made jurisdictional transitional provisions for complaints made to the Building Disputes Tribunal before, but not heard by, that date.
The applications were made on different dates. The first two applications were made to the Building Disputes Tribunal prior to 29 August 2011. The last of the three applications was lodged on 12 September 2011 at the offices of the Building Disputes Tribunal and purported to be made to the Building Disputes Tribunal, which, at that time, ceased to have jurisdiction to receive a complaint made, or purportedly made, pursuant to s 12A of the Builders Registration Act 1939 (WA), which, by that date, had been repealed. The last of the three applications was accepted and thereafter treated by the Building Commissioner as if it had been made pursuant to s 5 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA).
All three of the applications concern Mr and Mrs Kettle's property situated at Unit 1, 31 Troy Terrace, Daglish.
The President of the Tribunal declared that the first two applications made to the Building Disputes Tribunal by Mr and Mrs Kettle were each a 'current proceeding' on a proper interpretation of s 134 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), and, in particular, s 134(2) thereof. The consequence of such an order is that each of the first two applications, in point of time, was referred to the Building Disputes Tribunal for final resolution.
As to the last of the three applications made by Mr and Mrs Kettle against Mr and Mrs Benzie, that application could not be declared by the President of the Tribunal to be a 'current proceeding' pursuant to s 134(2) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), because it did not fall within the definition of a 'proceeding' as provided for by s 134(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA). There is therefore no statutory power conferred upon the Tribunal to refer that application to the Building Disputes Tribunal or back to the Building Commissioner.
Because the facts of the third application were related to the facts of the first two applications, and because the parties had not had the opportunity to address the Tribunal on the further directions to be made, the third application was adjourned to a member for further directions.

Introduction

On 8 November 2011, the Building Commissioner referred three applications before him to the Tribunal, pursuant to s 11(1)(d) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act). Two of the applications had been the subject of a complaint to the Building Disputes Tribunal pursuant to s 12A(1) of the now repealed Builders' Registration Act 1939 (WA) (BR Act) and were made on 11 September 2009 and 25 October 2010 respectively. The third application was made on 12 September 2011. The applications were consolidated and programmed for a hearing on 5 June 2012 and 6 June 2012. On 29 May 2012, the respondents' solicitor raised the issue of the Tribunal's jurisdiction to determine the applications. That raised questions as to whether any or all of the three applications are, or should be declared to be, current proceedings for the purposes of s 134 of the BSCRA Act. For that reason, the matter was referred to me as President of the Tribunal to deal with those questions.

The issues

The issues for determination in this matter are:
1)Whether the application made to the Building Disputes Tribunal on 11 September 2009 was a 'current proceeding' for the purposes of s 134(3) of the BSCRA Act.
2)Alternatively, whether the application made to the Building Disputes Tribunal on 11 September 2009 should be declared a 'current proceeding' by the President of the Tribunal pursuant to s 134(2) of the BSCRA Act.
3)Whether the application made to the Building Disputes Tribunal on 25 October 2010 should be declared a 'current proceeding' by the President of the Tribunal pursuant to s 134(2) of the BSCRA Act.
4)Whether the application accepted by the Building Commissioner on 12 September 2011 is a 'proceeding' for the purposes of s 134(1) of the BSCRA Act.
5)Further to 4) above, whether the application accepted by the Building Commissioner on 12 September 2011 can be the subject of a declaration by the President of the Tribunal that the matter is a 'current proceeding' pursuant to s 134(2) of the BSCRA Act.

Statutory framework

On 29 August 2011, the BSCRA Act received Royal Assent and became operative. Section 107 of the Building Services (Registration) Act 2011 (WA), which also received Royal Assent and came into effect on 29 August 2011, repealed the whole of the BR Act as of 29 August 2011. Consequently, s 12A and s 33A of the BR Act were repealed and the Building Disputes Tribunal ceased to have any jurisdiction, except as saved by s 133 and s 134 of the BSCRA Act, for what is defined as a 'current proceeding'. From 29 August 2011, the Building Disputes Tribunal could no longer receive new complaints pursuant to the repealed s 12A of the BR Act (or pursuant to the Home Building Contracts Act 1991 (WA)). Further, from 29 August 2011, the Building Disputes Tribunal could no longer hear and determine extant complaints or applications that did not fall within the definition of an actual or declared 'current proceeding', as provided for by s 134 of the BSCRA Act.
As I explained in Capone and Ennis Construction Pty Ltd [2012] WASAT 21 (Capone) (3 February 2012):
Since 29 August 2011 (commencement day), jurisdiction in building complaints concerning both poor workmanship and contractual claims, formerly vested in the BDT, was bestowed, in the first instance, on the Building Commissioner. …
The position regarding proceedings already commenced in the BDT prior to the commencement day is that, generally speaking, they were transferred on that day to the Building Commissioner by operation of s 133 of the BS Act. An exception exists however, in relation to any 'current proceeding', which is the subject of s 134 of the BS Act, which provides:
(1)In this section
current proceeding means
(a)a proceeding in respect of which a hearing has commenced before the former Tribunal, but which has not been concluded before the former Tribunal; or
(b)a proceeding in respect of which an order is made under subsection (2);
proceeding means
(a)a proceeding to deal with a complaint under section 12A of the repealed Act; or
(b)a proceeding to deal with an application under the Home Building Contracts Act 1991,
but does not include a proceeding of an interlocutory or procedural nature.
(2)The State Administrative Tribunal constituted by the President of the Tribunal sitting alone may, on its own initiative or on the application of a party, order that a proceeding is a current proceeding for the purposes of this section.
(3)A current proceeding is to be dealt with and determined in accordance with the relevant provisions of the repealed Act and the Home Building Contracts Act 1991 as in force immediately before commencement day.
(4)For the purposes of dealing with a current proceeding the former Tribunal is to continue as constituted under the repealed Act immediately before commencement day.
In Capone, the Tribunal concluded that it lacked jurisdiction to determine an application for the revocation of a Registrar's orders to remedy (which jurisdiction was conferred exclusively on the Building Disputes Tribunal pursuant to s 12A(4a) of the now repealed BR Act) and, as such, the application referred to the Tribunal by the Building Commissioner, where the owner sought such a determination, should be declared a 'current proceeding'. In Capone, both applications referred to the Tribunal were 'proceedings' as defined by s 134(1)(b) of the BSCRA Act. Further, in Capone, neither application was an actual 'current proceeding' for the purposes of s 134(1) of the BSCRA Act. The right to review the order made by the Registrar pursuant to s 33A(1) of the now repealed BR Act was conferred upon the Building Disputes Tribunal: see s 33A(2) and s 33A(3) of the BR Act. Such review jurisdiction has not been conferred upon the Tribunal.

Background facts

On 11 September 2009, the applicants lodged a complaint in the Building Disputes Tribunal against the respondents concerning certain items of workmanship undertaken by the respondents in the construction of their unit at Unit 1, 31 Troy Terrace, Daglish (application 1). Application 1 was nominated Building Disputes Tribunal case no 19236. That application progressed through the dispute determination process undertaken by the Building Disputes Tribunal to the point where the Registrar of the Building Disputes Tribunal made a decision, pursuant to s 33A(1) of the now repealed BR Act, that the respondents remedy certain items of building work undertaken by them. The Registrar made the order to remedy on 3 March 2010. The Registrar did not order the respondents to remedy all items of building work complained of in application 1, and ordered that certain items were to be determined by the Building Disputes Tribunal following a hearing.
The respondents obtained new legal representation. Sometime after the date of the Registrar's order to remedy in application 1, the respondents' solicitors sought a review of part of the Registrar's order to remedy in application 1. The respondents disclosed an intention to dispute that they were liable for certain items of building work which, they say, were not within their contract with the developer of the strata complex in question (Mr Stonehouse), from whom the applicants purchased their unit. The respondents intended to submit that they did not carry out the building work in respect of certain specific items, and were therefore not liable to the applicants to remedy the same.
The respondents also intended to assert certain alleged defects complained of were not the consequence of faulty building work, and that if there was a fault, the fault was in the design, for which they were not responsible (as they did not prepare or cause the design to be prepared). This issue concerned the construction of the suspended slab and whether the respondents had constructed that slab in compliance with the Building Code of Australia, particularly as to waterproofing and otherwise in compliance with the City of Subiaco's amendments to the approved plans (as they were obliged to do in compliance with the building licence granted to them by the City of Subiaco).
By directions made by the Building Disputes Tribunal on 30 June 2010, the respondents' application for a review of the Registrar's order to remedy (pursuant to s 33A(2) and s 33A(3) of the BR Act) was listed for final hearing. By that stage, the applicants had sought a revocation of the Registrar's order to remedy pursuant to s 12A(4a) of the BR Act. That matter was also listed for a final hearing. The Building Disputes Tribunal joined Mr Stonehouse, being the person for whom the respondents had constructed the strata complex in question, as a respondent, upon the basis that the respondents asserted certain work complained of was not their work but that of Mr Stonehouse.
On 2 November 2010, the Building Disputes Tribunal heard the parties on a preliminary issue whether the respondent was the correct respondent for the purposes of s 12A(1) of the BR Act in respect of those items of work that the respondents asserted were not undertaken by them, but rather, by Mr Stonehouse. On 3 December 2010 and following the hearing undertaken on 2 November 2010, the Chairperson of the Building Disputes Tribunal ordered that the respondent was, in fact and in law, the correct respondent, being the person who carried out the building work for the purposes of s 12A(1) of the BR Act. The Building Disputes Tribunal received evidence in the form of documents and statements concerning the preliminary issue referred to above. The evidence taken by the Building Disputes Tribunal on 2 November 2010 did not extend to hearing the detailed facts of the alleged faulty and unsatisfactory building work or the allegations of improper and unworkmanlike building work. Insofar as application 1 concerned Mr Stonehouse, it was dismissed. No action appears to have been taken in respect of application 1 thereafter in the Building Disputes Tribunal. The Building Disputes Tribunal did not hear any evidence or consider the issue of whether the alleged faulty items were the result of faulty building work or faulty design work. The Building Commissioner referred application 1 to the Tribunal on 8 November 2011.
On 25 October 2010, the applicants lodged a new complaint with the Building Disputes Tribunal concerning additional allegations of faulty and unsatisfactory building work and allegations of improper and unworkmanlike building work, pursuant to s 12A(1) of the BR Act. This application was nominated Building Disputes Tribunal case no 20110 (application 2). The allegations made in application 2, again, concern the applicants' home, and are related to application 1. It is fair to say that there is a degree of overlap between the allegations in application 1 and application 2, but there are new or fresh allegations in application 2. Application 2 progressed through the Building Disputes Tribunal determination process to the point where, on 15 March 2011, the Building Disputes Tribunal was in receipt of a report undertaken by the Builders' Registration Board Inspector. A note to the builder in that report states:
If you consider you should not be required to take the action set out in relation to each complaint and in relation to any complaint referred to the Registrar, you should submit your reasons for that, and any evidence you wish to be considered, in writing, to the Registrar within 9 days of receipt of this assessment.
There is no reference to the date the respondents received the report, but it was almost certainly some days following 15 March 2011. On 31 March 2011, the respondents' solicitors wrote to the Registrar, notifying the Registrar that the respondents objected to the conclusions in the report, and requested that application 2 be joined with application 1 and referred to the Building Disputes Tribunal for determination. As the issues concerning which person carried out the building work and the propriety of the slab formation touched on and concerned some of the items of complaint made in application 2, it could be expected that application 2 would be heard with application 1. This was not done. On 30 March 2011 and before receipt of the respondents' solicitor's letter dated 31 March 2011, the Registrar made an order to remedy pursuant to s 33A(1) of the BR Act in respect of some of the items of complaint encompassed in application 2. It is not clear whether the Registrar's order to remedy was actually issued to the parties. There is little information on the Building Disputes Tribunal file following the letter of 31 March 2011 from the respondents' solicitor until the referral of the application to the Tribunal on 8 November 2011. It is clear that the respondent intended to object to a Registrar's order to remedy and the objections disclosed an intention to seek a review of any order to remedy made by the Registrar, pursuant to s 33A(2) and s 33A(3) of the BR Act.
At sometime prior to 8 November 2011 and after 29 August 2011, application 1 and application 2 were both treated by the Building Commissioner as if they had been transferred to him by operation of law (s 133 of the BSCRA Act). Application 1 was given Building Commission case reference BC 335 of 2011, and application 2 was given the Building Commission case reference BC 334 of 2011.
On 12 September 2011, the applicants made a new complaint against the respondents. The complaint was made on a Building Disputes Complaint form. This third complaint again concerned the applicants' home and additional allegations of faulty and unsatisfactory building work and allegations of improper and unworkmanlike building work, pursuant to s 12A(1) of the then repealed BR Act (application 3). Application 3 was given Building Commission case no BC 1030 of 2011. There is a degree of overlap of the issues that arise in applications 1, 2 and 3, but application 3 contains new, or fresh, allegations of instances of faulty workmanship by the respondents. Application 3 was not given a Building Disputes Tribunal case reference number, presumably because the Building Disputes Tribunal ceased to have jurisdiction to receive new complaints of any kind by 12 September 2011. The only action taken by the Building Commissioner in this application was to refer the same to the Tribunal on 8 November 2011.
Upon referral of applications 1, 2 and 3 by the Building Commissioner, they were listed for an initial directions hearing in the Tribunal. Also, upon referral each application was provided with a Tribunal case reference number: application 1 was nominated Tribunal reference no CC 1789 of 2011; application 2 was nominated Tribunal reference no CC 1787 of 2011; and application 3 was nominated Tribunal reference no CC 1780 of 2011.
Applications 1, 2 and 3 first came before a Member of the Tribunal on 6 December 2011, when substantial programming orders were made across the three applications so as to program the entire dispute for a final hearing before the Tribunal. In the course of that directions hearing, the Member made an order that application 2 and application 3 be consolidated with application 1 (CC 1789 of 2011), and that application 1 (CC 1789 of 2011) be the lead application. Thereafter, in the Tribunal's case management process, applications 1, 2 and 3 were consolidated in one lead matter (CC 1789 of 2011).

No objection was raised to the Tribunal's jurisdiction at the initial directions hearing.
At the directions hearing, the applicants clarified that, in relation to application 1 and application 2, they pressed some disputed matters and sought a building remedy order pursuant to s 36(1)(b) of the BSCRA Act being the payment of a sum of money reflective of the cost of undertaking the remedial work concerning the items that had been the subject of the Registrar's order to remedy. They also sought a building remedy order pursuant to s 36(1)(a) of the BSCRA Act being a direction to the respondents to undertake remedial work. Because the respondents maintained at all times that they intended to put before the Tribunal additional facts to support a conclusion that the respondents were not liable for certain aspects of the construction, the Registrar's order to remedy, made on 30 March 2011 but not complied with, was not the focus of the parties' attention. The parties had been aware that, from 30 June 2010, the Building Disputes Tribunal had programmed application 1 at least for a review of some aspects of the Registrar's order to remedy. It also appears that application 2, insofar as the Registrar had issued an order to remedy, was to be the subject of a hearing and that the respondent sought a review of the Registrar's order to remedy.
At the initial directions hearing in the Tribunal, the parties agreed that liability for certain works had always been, and remained, in issue between the parties across all three applications.
The matter was adjourned for a very substantial period of time, on account of the applicants' lengthy holiday which they had booked sometime prior to 6 December 2011. The matter was listed for hearing on 5 June 2012 and 6 June 2012 in the Tribunal.

Respondents' objection to the Tribunal's jurisdiction

The respondent wrote to the Tribunal on 29 May 2012 requesting an urgent directions hearing in order to obtain orders to 'avoid unnecessary attendance at a full hearing scheduled for 5 6 June 2012'. The respondents' solicitor's letter submitted that, in the circumstances of the matter, applications 1, 2 and 3 are, or should be, considered 'current proceedings' pursuant to s 134(2) of the BSCRA Act, and should be referred to the Building Disputes Tribunal for determination. The respondents cited Capone in support. On that occasion, the Member made an order vacating the hearing on 5 June 2012 and 6 June 2012, and made a further order that the applications (now consolidated in CC 1789 of 2011) be referred to the President of the Tribunal to consider whether the applications, or any of them, are, or should be, declared 'current proceedings' for the purposes of s 134(1) or s 134(2) of the BSCRA Act.

Consideration and conclusion

The Tribunal is not satisfied that, in respect of application 1, the hearing of the preliminary issue on 2 November 2010 before the Chairperson of the Building Disputes Tribunal qualifies application 1 as a 'current proceeding' for the purposes of definition (a) of that term: see s 134(1) of the BSCRA Act. This is the answer to issue 1.
As noted in Capone the Tribunal does not have the jurisdiction to determine or the power to make an order to revoke the Registrar's order to remedy and substitute it with an order for the payment of a sum of money, as sought by the applicants. Further, the Tribunal does not have the jurisdiction to review a decision made by the Registrar pursuant to s 33A(1) of the now repealed BR Act, and does not have the power to set that order aside and substitute another therefor. Therefore, the Tribunal cannot hear and determine application 1 and application 2. Such jurisdiction is vested in the Building Disputes Tribunal in respect of matters that fall within the definition of an actual or declared 'current proceeding' (see s 134(1) and s 134(2) of the BSCRA Act). So that the issues in those applications can be dealt with, application 1 and application 2 should each be declared a 'current proceeding' pursuant to s 134(2) of the BSCRA Act. This is the answer to issue 2 and issue 3. Accordingly, an order to that effect will be made in respect of application 1 and application 2.
However, application 3 is not a 'proceeding' for the purposes of s 134(1) of the BSCRA Act. This is the answer to issue 4. Although application 3 was made on an outdated Building Disputes Tribunal form and refers to 'workmanship faults' (which is a reference, in practice, to a complaint made pursuant to s 12A of the now repealed BR Act), it was not made to the Building Disputes Tribunal as the Building Disputes Tribunal did not exist, jurisdictionally, for the purposes of a new complaint, after 29 August 2011. Application 3 was treated and accepted by the Building Commissioner as if it had been made pursuant to s 5(1) of the BSCRA Act. As such, it is not a matter that did seek (or could have sought as at that date) a determination of a right pursuant to s 12A of the BR Act, and does not fall within the definition of a 'proceeding' as provided for in s 134(1) of the BSCRA Act.
In respect of an application that is not a 'proceeding' as defined by s 134(1) of the BSCRA Act, the Tribunal has no power to refer the application to the Building Disputes Tribunal. This is the answer to issue 5.
Application 3 now falls to be determined in the Tribunal. The respondents' application that application 3 be declared a 'current proceeding' is dismissed.
The parties have not had the opportunity to consider these reasons for the purposes of making submissions as to appropriate directions on the programming and disposition of application 3 in the Tribunal. The parties are mindful of avoiding duplicity in proceedings and the waste of resources associated therewith. So as to allow the parties an opportunity to be heard on the manner in which application 3 (the only remaining application comprised in CC 1789 of 2011) is to be determined in the Tribunal, that application is listed for a further directions hearing before a Member on a date to be fixed.

Orders

1.Pursuant to s 134(2) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), it is ordered that the proceeding in the Building Disputes Tribunal No 19236 and Building Commission No 335 of 2011, being a proceeding between John Kettle and Susan Kettle and Danny Benzie and Michelle Benzie, trading as Saxon Constructions, is a current proceeding.
2.Pursuant to s 134(2) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), it is ordered that the proceeding in the Building Disputes Tribunal No 20110 and Building Commission No 334 of 2011, being a proceeding between John Kettle and Susan Kettle and Danny Benzie and Michelle Benzie, trading as Saxon Constructions, is a current proceeding.
3.The respondents' application that Building Commission Application No 1030 of 2011 between John Kettle and Susan Kettle and Danny Benzie and Michelle Benzie, trading as Saxon Constructions, referred to the Tribunal on 8 November 2011 is declared a 'current proceeding' pursuant to s 134(2) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), is dismissed.
4.The application is listed for a further directions hearing before a Member of the Tribunal on a date to be fixed.

I certify that this and the preceding [33] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J A CHANEY, PRESIDENT