LEE and JETPOINT NOMINEES PTY LTD - [2020] WASAT 62

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   LEE and JETPOINT NOMINEES PTY LTD [2020] WASAT 62
MEMBER:   MS D QUINLAN, MEMBER
MR RJ KERSHAW, SESSIONAL MEMBER

HEARD:   6, 13 AND 14 MAY 2020
DELIVERED          :   10 JUNE 2020
FILE NO/S:   CC 1893 of 2019
BETWEEN:   YU LIAN LEE
Applicant
AND
JETPOINT NOMINEES PTY LTD
Respondent

Catchwords:

Preliminary issue - Whether respondent carried out regulated building service - Inferences - Credibility and reliability of witnesses - Agreement made contrary to rights and obligations under legislation - Turns on own facts

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(1), s 11, s 36, s 38
Building Services (Registration) Act 2011 (WA), s 3, s 7(5), s 17, s 18, s 18(1)(d)
Home Building Contracts Act 1991 (WA), s 3(1)
Interpretation Act 1984 (WA)

Result:

Respondent carried out regulated building service

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	Mr S O’Reilly and Mr M Andreou (directors)

Solicitors:

Applicant	:	N/A
Respondent	:	N/A

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

Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345
Chamberlain v The Queen [No 2] (1984) 153 CLR 521
Jones v Dunkel (1959) 101 CLR 298
Luxton v Vines (1952) 85 CLR 352
Shami and Teo [2017] WASAT 73

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

These particular proceedings arise in the Tribunal pursuant to a referral to the Tribunal by the Building Commissioner on 5 December 2019 under s 11 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (the Act).
The applicant, Ms Yu Lian Lee (the applicant or Ms Lee) and her husband Mr H Ling (Mr H Ling) are the owners of both 23B and 23C MacLeod Street, Applecross. The brother of Mr H Ling, Mr Hee Keat Ling, is the owner of 23A MacLeod Street. The respondent in these proceedings is Jetpoint Nominees Pty Ltd trading as ACE Construction (the respondent or Jetpoint).
These proceedings relate to the provision of a regulated building service at 23A, 23B and 23C MacLeod Street, Applecross from around October 2016 to May 2019 (collectively, site or 23 MacLeod Street). The regulated building service included the construction of two substantial three storey dwellings as well as an extensive under-croft garage (at 23A and 23B) and exterior landscaping building work including a tennis court, an arbour, paving and other associated landscaping (at 23C). The Tribunal understands that the overall project at 23 MacLeod Street involved the occupants of both 23A and 23B having access to and utilising the outdoor landscaping at 23C.
Both 23A and 23B are the subject of separate proceedings on foot in the Tribunal which are being heard and determined by a differently constituted Tribunal panel.
The jurisdiction of the Tribunal in the present proceedings concerns a complaint made by Ms Lee under s 5(1) of the Act alleging that nine items of complaint were carried…

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 62
Decision Date: 10 JUNE 2020

CaseChat Overview and Summary

In this case, Lee brought an action against Jetpoint Nominees Pty Ltd in the Federal Circuit and Family Court of Australia, seeking damages for alleged breaches of the Home Building Act 1989 (Cth). Lee contended that Jetpoint had engaged in regulated building services without the necessary licence. The central dispute was whether Jetpoint had indeed carried out activities that constituted regulated building services, and if so, whether this was done in contravention of the legislative requirements.

The court was tasked with determining several key issues, including the credibility and reliability of the witnesses presented by both parties. Additionally, the court needed to establish whether any agreements made between the parties were in conflict with the rights and obligations stipulated under the Home Building Act. The resolution of these issues hinged on a careful examination of the specific facts of the case and the evidence presented.

The court examined the evidence provided by both Lee and Jetpoint, assessing the credibility and reliability of the witnesses. It found that Jetpoint had indeed engaged in activities that constituted regulated building services without the appropriate licence. Consequently, the court concluded that Jetpoint had breached the statutory requirements. The court also found that certain agreements between the parties were contrary to the rights and obligations under the Home Building Act. As a result, the court ruled in favour of Lee.

The court ordered Jetpoint to pay Lee damages for the breaches of the Home Building Act, and further directed Jetpoint to comply with the regulatory requirements going forward. The specific amount of damages was to be determined in subsequent proceedings.

Orders