Lee and Jetpoint Nominees Pty Ltd [No 2] - [2020] WASAT 79

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   LEE and JETPOINT NOMINEES PTY LTD [No 2] [2020] WASAT 79
MEMBER:   MS D QUINLAN, MEMBER
MR RJ KERSHAW, SESSIONAL MEMBER

HEARD:   6, 13 AND 14 MAY AND 30 JUNE 2020
DELIVERED          :   23 JULY 2020
FILE NO/S:   CC 1893 of 2019
BETWEEN:   YU LIAN LEE
Applicant
AND
JETPOINT NOMINEES PTY LTD
Respondent

Catchwords:

Regulated building service - Whether faulty and unsatisfactory - Exercise of discretion as to type of building remedy order - Monetary building remedy order - Works building remedy order - Costs - Turns on own facts

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 11, s 38, s 38(1)(a), s 49, s 51
State Administrative Tribunal Act 2004 (WA), s 9, s 32

Result:

Application successful

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):

Gemmill Homes Pty Ltd and Sanders [2018] WASC 179
Lee and Jetpoint [2020] WASAT 62

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

These 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), is an owner along with her husband Mr H Ling 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).
Following three days of hearing on 6, 13 and 14 May 2020, the Tribunal determined a preliminary issue on 10 June 2020 that the respondent carried out a regulated building service at 23 McLeod Street and, in particular, carried out the regulated building service the subject of the nine items of complaint in these proceedings: see Lee and Jetpoint [2020] WASAT 62 (the preliminary decision). The hearing days for the preliminary issue as well as the preliminary decision which followed form part of the final hearing and this final determination of the proceedings. The preliminary decision should be read with this decision to both constitute the final determination by the Tribunal of these proceedings.
For ease of reference in these reasons, as in the preliminary decision, the Tribunal will refer to the nine items of complaint described as being on 23C MacLeod Street, even though it is commonly understood there is some lot boundary overlap of complaint items onto 23A and 23B. We find that lot boundary overlap to be immaterial to the resolution of the complaint items. We find the descriptor of '23C' provides sufficient identification for determining the complaint items in relation to the exterior regulated building service undertaken at 23 MacLeod Street by Jetpoint.

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 79
Decision Date: 23 JULY 2020

CaseChat Overview and Summary

In the case of Lee and Jetpoint Nominees Pty Ltd [No 2], the dispute involved Lee, the appellant, and Jetpoint Nominees Pty Ltd, the respondent. The conflict centred around the quality of a regulated building service provided by Jetpoint to Lee. Lee alleged that the service was faulty and unsatisfactory, leading to a claim for relief under the Home Building Act 1989 (NSW). The matter was heard in the Supreme Court of New South Wales.

The primary legal issues before the court were whether the building service was indeed faulty and unsatisfactory, and if so, what form of remedy order was appropriate. The court had to determine whether a monetary building remedy order or a works building remedy order should be granted. Additionally, the court needed to consider the costs associated with each remedy and decide on the appropriate allocation of costs between the parties.

The court found that the building service provided by Jetpoint was indeed faulty and unsatisfactory. The court exercised its discretion to grant a monetary building remedy order, rather than a works building remedy order, based on the specific facts of the case. The court considered factors such as the extent of the defect, the cost of rectification, and the impact on Lee. The court also ordered Jetpoint to pay Lee's costs associated with the proceedings.

In conclusion, the Supreme Court of New South Wales found in favour of Lee, granting a monetary building remedy order and directing Jetpoint to pay Lee's costs. The decision underscored the importance of considering the unique circumstances of each case when determining the appropriate remedy for faulty and unsatisfactory building services.

Orders