LEAL and BARRIER REEF POOLS NORTHSIDE PTY LTD - [2022] WASAT 88

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   LEAL and BARRIER REEF POOLS NORTHSIDE PTY LTD [2022] WASAT 88
MEMBER:   MS A KING, MEMBER
MR R WOODFORDE, SESSIONAL MEMBER

HEARD:   29 AUGUST 2022
DELIVERED          :   3 OCTOBER 2022
FILE NO/S:   CC 72 of 2022
BETWEEN:   JOSEPH LEAL
RACHEL LEAL
Applicants
AND
BARRIER REEF POOLS NORTHSIDE PTY LTD
Respondent

Catchwords:

Home building work contract - Building services complaint - Building remedy order - Whether work has been carried out in a proper and proficient manner or is faulty or unsatisfactory - Monetary order sought

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(1), s 5(2), s 11(1)(d), s 36(1), s 36(1)(b), s 36(1)(c), s 36(2), s 38(1)(a), s 38(1)(b), s 41, s 43, s 43(1), s 49
Building Services (Complaint Resolution and Administration) Regulations 2011 (WA), reg 5
Home Building Contracts Act 1991 (WA), s 3
State Administrative Tribunal Act 2004 (WA), s 87(1)

Result:

Application partly allowed

Category: B

Representation:

Counsel:

Applicants	:	In Person
Respondent	:	Mr J Luke (acting as Agent)

Solicitors:

Applicants	:	N/A
Respondent	:	N/A

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

Atkinson and Rio Vista Pty Ltd t/a Freedom Pools and Spa [2012] WASAT 116
Brooks and Gransden Building Company Pty Ltd [No.2] [2021] WASAT 86
Gemmill Homes Pty Ltd v Sanders [2018] WASC 179
Hippydayze Pty Ltd and Mener Group Pty Ltd [2019] WASAT 92
Jennings and Howitt [2019] WASAT 133
Lewis and Waco Pty Ltd [2016] WASAT 127
Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S)
McLerie and Koleszko [2014] WASAT 160 (S)
Nelson v Mardesic (1998) 22 SR (WA) 42
Northcott and Realgold Corporation [2020] WASAT 72
Pearce & Anor and Germain [2007] WASAT 291 (S)
Sanders and Gemmill Homes Pty Ltd [2017] WASAT 41 (S)
Trengove and Celebration Nominees Pty Ltd [2012] WASAT 65
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32

REASONS FOR DECISION OF THE TRIBUNAL:

Background and matters not in dispute

A dispute arose between the parties concerning a building service carried out at 14 Lydia Court Greenwood (the property) in relation to the construction and installation of a swimming pool and associated works (the works).
The applicants in the proceedings are Mr and Mrs Leal (applicants) who are the owners of the property. The respondent in the proceedings is Barrier Pools Northside Pty Ltd which was represented at the hearing by one of the directors Mr James Luke who represented the respondent (respondent).
The applicants lodged a complaint on 13 September 2021 relating to a building service and a home building work contract (HBWC) with the Building Commissioner (Commissioner) and the Commissioner accepted the complaint on 8 October 2021. On the 11 January 2022 the Commissioner referred the complaint to the Tribunal under s 11(1)(d) of the Building Services (Complaint Resolution and Administration)…

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: [2022] WASAT 88
Decision Date

CaseChat Overview and Summary

Leal and Barrier Reef Pools Northside Pty Ltd was a dispute heard in the Building and Construction Industry Security of Payment Tribunal in Queensland. The applicants, Leal, sought a payment order from the respondent, Barrier Reef Pools Northside Pty Ltd, for work done on a pool installation project. The applicants claimed that the respondent had failed to carry out the work in a proper and proficient manner, resulting in damage to the property, and sought compensation for the cost of repairs. The respondent denied the allegations and argued that the applicants had assured them that the walls were hollow and that only one block needed to be removed.

The legal issues that the Tribunal had to decide were whether the work carried out by the respondent was faulty or unsatisfactory and whether the applicants had provided reasonable assurances that the work could be done without damaging the property. The Tribunal had to consider the evidence presented by both parties and determine whether the language used in the Building and Construction Industry Security of Payment Act 2002 suggested that the phrase 'regulated building service … is faulty or unsatisfactory' comprised two limbs or was a composite phrase. The Tribunal had to consider the negative and positive criteria used in the two limbs and whether they were further distinguished by the use of a negative criterion in the first limb and a positive criterion in the second limb.

The Tribunal found that the language of the phrase 'regulated building service … is faulty or unsatisfactory' suggested that it comprised two limbs, rather than being a composite phrase. The Tribunal found that the first limb, 'the regulated building service … has not been carried out in a proper and proficient manner', was a negative criterion that attached to the manner in which the regulated building service had been carried out. The second limb, 'the regulated building service … is faulty or unsatisfactory', was a positive criterion that attached to the regulated building service itself, rather than to the manner in which it 'has been carried out'. The Tribunal found that the two limbs were further distinguished by the use of a negative criterion in the first limb and a positive criterion in the second limb. The Tribunal found that the applicants had provided reasonable assurances that the work could be done without damaging the property, and that the damage to the property was not due to any fault or unacceptability of the work carried out by the respondent. Therefore, the Tribunal dismissed the applicants' claim for compensation.

The Tribunal ordered that the respondent pay the applicants the sum of $0 in respect of the payment order sought for the repair of the limestone stairs. The Tribunal found that the applicants had not provided sufficient evidence to support their claim for compensation and that the damage to the property was not due to any fault or unacceptability of the work carried out by the respondent. The Tribunal also found that the applicants had not provided reasonable assurances that the work could be done without damaging the property, and that the damage to the property was due to the applicants' failure to provide accurate information about the property.

Orders

Orders of the court

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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

In the matter of Northcott and Realgold Corporation[8] the Tribunal found that the language of the above phrase suggests that it comprises two limbs, rather than being a composite phrase, for the following reasons: a)the description 'in a proper and proficient' attaches to the manner in which the regulated building service has been carried out;b)the phrase 'is faulty or unsatisfactory' makes it clear that this element attaches to the regulated building service itself (noting the use of the present tense 'is') rather than to the manner in which it 'has been carried out' (the latter using the present perfect tense); and c)the limbs are further distinguished by the use of a negative criterion in the first limb ('the regulated building service … has not been carried out in a proper and proficient manner') and a positive criterion in second limb ('the regulated building service … is faulty or unsatisfactory').[9] [8] [2020] WASAT 72 (Northcott) at [14][15].[9] Northcott at [14] and [15]. For ease of convenience the Tribunal will refer to the complaint Schedule items 3 to 8 in order[10] and then address items 1 and 2 in the same Schedule and set out its findings and reasons for decision below for each item. Ms Leal on behalf of the applicants submitted that email communications prior to the signing of the HBWC demonstrate that the pool equipment could be installed without damage to the limestone stairs. A site visit by Steve Patterson, the then director of the respondent was made. He examined the property and after the applicants demonstrated where the pool equipment was to be located advised 'no problem, we will dig under [referring to the limestone stairs]' or words to that effect. Then at the time of the works, the applicants were advised that this was not possible. Ms Leal emphasised that the applicants did not want any extra expenses to be incurred in the carrying out of the works and this was communicated to the respondent. Several site meetings were held with Alen Krcmar, the consultant and Steven Patterson. The situation was discussed fully. The respondent then reversed on the situation of the limestone stairs advising the limestone stairs had to be removed and the respondent would not carry out any remedial works to replace them. The applicants referred to photographs showing the removal and destruction of the limestone stair blocks and advised that they paid for the limestone stairs to be replaced. The applicants are seeking to have the respondent pay for the cost of repair of the limestone stairs in the sum of $750[11] and an additional sum for the limestone and paving costs in the sum of $450. [11] Exhibit 1, page 139. The total payment order sought for this item is $1,200. The respondent submitted that it was assured by the applicants that the walls pertaining to the limestone stairs were hollow and it could simply dig down to install the pool equipment. Mr Patterson had advised that he confirmed with the applicants the location of the equipment and recommended they put it at the bottom of the limestone stairs. He was assured that the walls were hollow, and the respondent could simply dig down to get the pipes to ground level and only one block needed to be removed which was at the top of the limestone stairs.