Kulowall Construction Pty Ltd v Chellem - [2023] WASC 140

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   KULOWALL CONSTRUCTION PTY LTD -v- CHELLEM [2023] WASC 140
CORAM:   TOTTLE J
HEARD:   12 APRIL 2023
DELIVERED          :   3 MAY 2023
FILE NO/S:   GDA 13 of 2022
BETWEEN:   KULOWALL CONSTRUCTION PTY LTD
Appellant
AND
OBED CHELLEM
First Respondent
SHAZIA ALI
Second Respondent

Catchwords:

Administrative law - Appeal against decision of State Administrative Tribunal - Building services complaint - Home Building Work Contract complaint under the Building Services (Complaint Resolution and Administration) Act 2011 (WA) - Whether the Tribunal had jurisdiction to find the appellant was not entitled to increase the price under the Contract - Whether the Tribunal had jurisdiction to make an order for compensation - Turns on own facts

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5, s 7, s 8, s 9, s 10, s 11(1)(d), s 36, s 41(2), s 43
Home Building Contracts Act 1991 (WA), s 17
State Administrative Tribunal Act 2004 (WA), s 105

Result:

Leave to appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	J Jacobson
First Respondent	:	J M Healy
Second Respondent	:	J M Healy

Solicitors:

Appellant	:	Jacobson and Associates
First Respondent	:	Tang Law
Second Respondent	:	Tang Law

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

Chellem and Kulowall Construction Pty Ltd [2022] WASAT 95
Giudice v Legal Profession Complaints Committee [2014] WASCA 115
Owners of Island Apartments Strata Plan 52597 and Pindan Pty Ltd [2017] WASAT 25
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361

TOTTLE J:

Summary

The appellant (the builder) has applied for leave to appeal against orders made by the State Administrative Tribunal on 2 November 2022 in favour of the respondents (the owners). The orders were made pursuant to s 43 of the Building Services (Complaint Resolution and Administration) Act2011 (WA) and they required the builder to do the following:
(a)complete the building of a double-storey house at the owners' property at 34 Burnham Way, Girrawheen in accordance with a home building contract (the Contract) between the builder and the owners; and
(b)pay the owners the sum of $9,115 as compensation for loss or damage caused by the builder's breach of the Contract.
The application for leave to appeal is brought pursuant to s 105 of the State Administrative Tribunal Act 2004 (WA). In summary, the builder's grounds of appeal are to the following effect:[1]
(a)The Tribunal had no jurisdiction to find that the builder was not entitled to increase the price under the Contract because the complaint made by the owners to the Building Commissioner, in respect of which the Tribunal's orders were made, was not a complaint about either a breach of the Contract or an increase in price (ground 1).
(b)The Tribunal had no jurisdiction to make an order for the payment of compensation because the Tribunal made no finding that there had been an 'unlawful suspension' of the building work and because the complaint made by…

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: [2023] WASC 140
Decision Date

CaseChat Overview and Summary

Kulowall Construction Pty Ltd has applied for leave to appeal against the orders made by the State Administrative Tribunal on 2 November 2022 in favour of the respondents, Obed Chellem and Shazia Ali. The orders mandated the builder to complete the construction of a double-storey house according to the terms of the home building contract and to compensate the owners for losses due to the builder's breach of contract. The builder contends that the Tribunal lacked jurisdiction to find it was not entitled to increase the contract price and to order compensation. The court found that the owners' complaint was sufficiently broad to include the builder's justification for stopping work, thus the Tribunal had jurisdiction to assess the builder's right to increase the contract price. Furthermore, the Tribunal's finding that the builder's suspension of work was unlawful inherently included a rejection of the builder's justification for the suspension, thereby justifying the compensation order.

The builder's appeal for leave to challenge the Tribunal's jurisdiction was dismissed. The court determined that the owners' complaint was adequately comprehensive to cover the builder's justification for halting work, thereby granting the Tribunal jurisdiction to examine the builder's entitlement to raise the contract price. Additionally, the Tribunal's determination that the builder's work suspension was unlawful inherently entailed a rejection of the builder's rationale for the suspension, thereby justifying the compensation order. The application for leave to appeal has been denied, and the court will now address the issue of costs.

Orders