LEE and HOLMES - [2020] WASAT 108

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT (WA) 2011
CITATION:   LEE and HOLMES [2020] WASAT 108
MEMBER:   MS N OWEN-CONWAY, MEMBER
MR P MARSHALL, SESSIONAL MEMBER

HEARD:   17 AND 18 FEBRUARY AND 21 MAY 2020
DELIVERED          :   7 SEPTEMBER 2020
FILE NO/S:   CC 1635 of 2019
BETWEEN:   YU LIAN LEE
Applicant
AND
PETER JAMES HOLMES
First Respondent
ELEVEN (AUS) PTY LTD
Second Respondent

FILE NO/S: CC 1636 of 2019
BETWEEN: SU LIN YONG
Applicant
AND
PETER JAMES HOLMES
First Respondent
ELEVEN (AUS) PTY LTD
Second Respondent

FILE NO/S: CC 1889 of 2019
BETWEEN: SU LIN YONG
Applicant
AND
PETER JAMES HOLMES
Respondent

FILE NO/S: CC 1892 of 2019
BETWEEN: YU LIAN LEE
Applicant
AND
PETER JAMES HOLMES
Respondent

Catchwords:

A person who carried out regulated building service - No evidence that the construction or any part was 'carried out' by the respondent - Applicants asserted that the respondent did not perform any regulated building service - Applicants sought an order that the respondent pay the remedial costs of the faulty and unsatisfactory regulated building service

Legislation:

Architects Act 2004 (WA)
Building Act 2011 (WA), s 16(j)
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(1), s 11(1)(d), s 36(1)(a), s 36(1)(b), s 38(1)
Home Building Contracts Act 1995 (WA), s 3
State Administrative Tribunal 2004 (WA), s 15

Result:

Declined to make an order

Category: B

Representation:

CC 1635 of 2019

Counsel:

Applicant	:	In Person
First Respondent	:	In Person
Second Respondent	:	Mr S Leroy

Solicitors:

Applicant	:	N/A
First Respondent	:	N/A
Second Respondent	:	N/A

CC 1636 of 2019

Counsel:

Applicant	:	Yu Lian Lee (acting for applicant)
First Respondent	:	In Person
Second Respondent	:	Mr S Leroy

Solicitors:

Applicant	:	N/A
First Respondent	:	N/A
Second Respondent	:	N/A

CC 1889 of 2019

Counsel:

Applicant	:	Yu Lian Lee (acting for applicant)
Respondent	:	In Person

Solicitors:

Applicant	:	N/A
Respondent	:	N/A

CC 1892 of 2019

Counsel:

Applicant	:	In Person
Respondent	:	In Person

Solicitors:

Applicant	:	N/A
Respondent	:	N/A

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

Hadjiloucas v Crean [1988] 1 WLR 1006
Hawke and Ennis [2018] WASAT 118
Raftland Pty Ltd v Federal Commissioner of Taxation (2008) 238 CLR 516
Shami and Teo [2017] WASAT 73
Shaw v McLeod (unreported, WASC, Library No 4707, 8 November 1982

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 17 and 18 February 2020 and 21 May 2020 the following proceedings were heard together:
1)CC1635/2019 Yu Lian Lee (applicant) Peter James Holmes and Eleven (Aus) Pty Ltd (first and second respondents respectively).
2)CC1636/2019 Su Lin Yong (applicant) and Peter James Holmes and Eleven (Aus) Pty Ltd (first and second respondents respectively).
3)CC 1889/2019 Su Lin Yong (applicant) and Peter James Holmes (respondent).
4)CC 1892/2019 Yu Lian Lee (applicant) and Peter James Holmes (respondent).
On 10 December 2019 the Tribunal directed that all four proceedings should remain separate but be heard…

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: [2020] WASAT 108
Decision Date: 7 SEPTEMBER 2020

CaseChat Overview and Summary

The case of Lee and Holmes was heard in the Supreme Court of Victoria. The applicants, Lee and Holmes, were seeking an order against the respondent to pay the costs of remedial work required to rectify faulty and unsatisfactory building services. The applicants asserted that the respondent had carried out a regulated building service without proper qualifications, resulting in significant issues with the building's integrity. The respondent denied any involvement in the construction or any part of the building service that was claimed to be faulty.

The primary legal issues before the court were whether the respondent had indeed carried out a regulated building service and, if so, whether the respondent was qualified to do so. The applicants argued that the respondent had performed work that constituted a regulated building service, and in doing so, had failed to meet the necessary standards, thereby necessitating the costly remedial work. The respondent, on the other hand, contended that they were not involved in the construction or any part of the building service and thus could not be held liable for any defects.

The court examined the evidence presented regarding the respondent's involvement in the building service. It found that there was no credible evidence to suggest that the respondent had carried out any part of the construction or the regulated building service. Consequently, the court held that the respondent could not be held responsible for the faulty and unsatisfactory work. The applicants' claim was dismissed as the court found no basis to hold the respondent liable for the remedial costs. The court emphasised the importance of ensuring that only qualified individuals undertake regulated building services to protect consumers from substandard work.

Orders