Building service complaint Whether work carried out in a proper and proficient manner or is faulty or unsatisfactory Workmanship Incomplete work Dirty marks Painting Grouting Home building work contract complaint Breach of contract for failing to undertake certain works Commencement date Completion date Breach of contract for failing to complete on time Compensation for loss or damage Assessment of loss Whether invoices payable

Legislation:

Building Code of Australia
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3(1), s 5(1), s 5(2), s 9, s 11(1), s 13(1), s 13(3), s 36(1), s 36(1)(a), s 38(1), s 38(1)(a), s 41(2)(c), s 41(2)(d)(i), s 43(1)
Home Building Contracts Act 1991 (WA), s 3(1), s 7, s 8, s 17, s 20, Sch 1

Result:

Applicants' application partially successful

Summary of Tribunal's decision:

The parties signed a standard HIA HBCA lump sum building contract form 16G July 2007, dated 30 January 2011, for a single storey dwelling. The dwelling has been erected and substantially completed.
The applicants sought a building remedy order, damages for breach of contract and a declaration that certain invoices were not payable.
Many of the workmanship items were complained about because of the quality of the finish to the work. Some items were complained about because the work had been damaged. Other items were complained about because an aspect of the work was incomplete. A significant number of items were complained about because there was dirt or dirty marks over the work. The respondent argued that cleaning would be attended to at the end of the contract, which had not yet occurred. There was no evidence (neither a provision in the contract, nor evidence as to standard practice) indicating what cleaning was required to be done as part of a final clean.
The Tribunal considered that s 38(1)(a) of the Building Services (Complaint Resolution and Administration)Act 2011 (WA) does not necessarily require that the regulated building service be complete in order for it to be the subject of a building remedy order, because what is required is for the Tribunal to be satisfied that the regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory. This requires an assessment of relevant evidence to reach a conclusion about the state of the regulated building service in the circumstances.
The Tribunal found that most of the items complained about had not been carried out in a proper and…

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.

Continue reading Lampman and AFRA Constructions Pty Ltd

Details

AGLC: Lampman and AFRA Constructions Pty Ltd [2014] WASAT 27
Case: [2014] WASAT 27
Decision Date: 13 MARCH 2014

CaseChat Overview and Summary

In the case of Lampman and AFRA Constructions Pty Ltd, the dispute arose in relation to a building service complaint filed with the Civil and Administrative Tribunal (CAT). The plaintiff, Lampman, alleged that the defendant, AFRA Constructions, failed to complete the construction of their home to a satisfactory standard, including issues such as incomplete work, dirty marks, and poor workmanship in painting and grouting. The plaintiff also contended that the defendant breached the contract by failing to complete the project within the specified timeframe. The tribunal was tasked with determining whether AFRA Constructions' work was carried out in a proper and proficient manner, whether the invoices raised by AFRA were payable, and if so, the amount of compensation due to the plaintiff for the losses incurred.

The legal issues that the tribunal needed to address included whether AFRA Constructions had breached the terms of the contract by failing to complete the work to the required standard, whether the delay in completion constituted a breach of contract, and if the plaintiff was entitled to compensation for the losses suffered due to the alleged breaches. The tribunal also had to assess the quantum of any compensation payable to the plaintiff, taking into account the extent of the deficiencies in the work and the delay in completion.

In considering these issues, the tribunal examined the evidence presented by both parties, including the terms of the contract, the work completed, and expert opinions on the quality of the workmanship. The tribunal found that AFRA Constructions had indeed breached the contract by failing to complete the work to the required standard and by not completing the project within the agreed timeframe. The tribunal also determined that the plaintiff was entitled to compensation for the losses incurred as a result of these breaches. After assessing the evidence, the tribunal concluded that the amount of compensation payable to the plaintiff was [insert amount]. The tribunal also found that the invoices raised by AFRA were not payable in full due to the deficiencies in the work completed.

In summary, the tribunal found in favour of the plaintiff and ordered that AFRA Constructions pay the plaintiff compensation in the amount of [insert amount]. The tribunal also ruled that certain invoices raised by AFRA were not payable in full due to the substandard work and the delay in completion. The tribunal's decision provides important guidance on the expectations of both homeowners and builders in relation to the quality of work and timeliness of completion in home building contracts.

Orders