LEEUWENBURG and PHILLIPS
[2012] WASAT 149
•19 JULY 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)
CITATION: LEEUWENBURG and PHILLIPS [2012] WASAT 149
MEMBER: DR B DE VILLIERS (MEMBER)
MR P MITTONETTE (SESSIONAL MEMBER)
HEARD: 4 JULY 2012
DELIVERED : 19 JULY 2012
FILE NO/S: CC 461 of 2012
BETWEEN: RONALD LEEUWENBURG
Applicant
AND
JOHN STANLEY PHILLIPS
Respondent
Catchwords:
Is plumbing that was installed at the time of subdivision of land a 'regulated building service' for purposes of the Building Services (Complaint Resolution and Administration) Act 2011 (WA)?
Legislation:
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(1)
Building Services (Registration) Act 2011 (WA), s 3, s 17, s 18
Building Services (Registration) Regulations 2011 (WA)
Home Building Contracts Act 1991 (WA), s 3, s 3(1)
Water Services Licensing (Plumbers Licensing and Plumbing Standards) Regulations 2000 (WA)
Water Services Licensing Act 1995 (WA), s 95I
Result:
The application is dismissed since the dispute falls outside jurisdiction of the Tribunal. The plumbing installed at time of subdivision is not a 'regulated building service' under the Building Services (Complaint Resolution and Administration) Act 2011 (WA).
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Self-represented
Solicitors:
Applicant: N/A
Respondent: N/A
Case(s) referred to in decision(s):
Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719
Winslow Constructors Pty Ltd v Mt Holden Estates Pty Ltd; Lanigan Baldwin Pty Ltd v Mt Holden Estates Pty Ltd [2004] VSCA 159
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Mr Leeuwenburg sought an order for Mr Phillips to pay an amount of $8,212.00 to rectify the plumbing Mr Phillips did when the subdivision of the land took place. Mr Phillips, the registered plumber who installed the sewerage service for purposes of subdivision, refused to pay. Mr Phillips did the work in November 2007. Mr Leeuwenburg acquired the land in July 2011 and commenced construction of the dwelling in December 2011.
The preliminary question was whether the installation of a sewer line and sewer junction at the time of subdivision was a 'regulated building service' under s 5(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA).
The Tribunal found in regard to the preliminary question that the plumbing work done by Mr Phillips did not constitute a 'regulated building service', and that the dispute therefore fell outside the jurisdiction of the Tribunal. The reason is that (a) Mr Phillips was not, for purposes of these proceedings and pursuant to the relevant legislation, a 'registered building service provider'; (b) the work was not 'home building work' since it was not sufficiently connected to the construction of a dwelling; and, (c) the work is not otherwise 'prescribed' as required pursuant to s 3 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA).
The parties also made submissions and gave evidence about the substance of the claim. There was no need for the Tribunal to make a determination in regard to the issues of substance since the threshold question of jurisdiction had not been met and another court may be called upon to determine the substantial dispute.
The application was dismissed.
Issues
Two issues were before the State Administrative Tribunal (Tribunal), namely:
(a)Does the plumbing work undertaken by Mr Phillips at the time of subdivision constitute a 'regulated building service' under s 5(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BS(CRA) Act)?
and; if so,
(b)Should Mr Phillips be ordered to pay $8,123.00 to Mr Leeuwenburg for remedial work that had to be undertaken in regard to the sewer line and sewer junction installed by Mr Phillips?
Background
The events leading to the dispute are largely uncontested.
Mr Phillips, a registered plumber, was responsible for installing the sewer line and sewer junction in November 2007 when the subdivision of land took place. Two lots were created by the subdivision. The sewer junction was situated on an adjacent lot. The developer responsible for the subdivision is not a party to the proceedings. Mr Leeuwenburg acquired one of the lots 44 Canterbury Place, East Victoria Park in July 2011. The sewer line to connect the dwelling of Mr Leeuwenburg to the sewer main had to run across Lot 44a Canterbury Place, so as to connect with the sewer junction installed by Mr Phillips.
Mr Leeuwenburg retained Taff Design and Construction to build a dwelling on his lot. Taff Design and Construction, in turn, utilised the services of Mr Ranger, a registered plumber, of Midland Plumbing and Gas to install and connect plumbing for the new dwelling.
Mr Ranger realised, when he wanted to connect the plumbing system of the dwelling to the sewer junction on the neighbouring lot, that the sewer junction was at an inadequate depth to allow for the required fall from the dwelling to the sewer line. Mr Leeuwenburg authorised Taff Design and Construction to undertake remedial work, so as to provide for an adequate fall to the sewer line. The cost incurred to remedy the deficiency amounted to $8,213.00.
Mr Leeuwenburg says that before he authorised Taff Design and Construction to undertake the remedial work, he made attempts to establish contact with Mr Phillips who had installed the service, but to no avail. Mr Leeuwenburg, Mr Frost from Taff Design and Construction, and Mr Ranger say that the remedial work had to be done urgently, since it was close to Christmas and the builders on the adjacent lot, through which the sewer connection had to run, had indicated that they would lay the slab for the neighbouring dwelling immediately after the Christmas holidays. If the slab for the neighbouring dwelling had been laid before the new sewerage connection was in place, the cost to connect Mr Leeuwenburg's dwelling to the sewer main would have been much higher. Mr Leeuwenburg therefore authorised Taff Design and Construction to undertake the work.
After the remedial work had been done, Mr Leeuwenburg contacted Mr Phillips and requested a full refund for the remedial work.
Mr Phillips, who had not been aware of the unfolding events, refused to pay the remedial costs. Mr Phillips says that he and the Plumbers Licensing Board should have been notified, and if remedial action was required he would have undertaken it free of charge.
Mr Leeuwenburg commenced these proceedings for an order to pay.
The application was lodged with the Building Commission and it was transferred to the Tribunal on 22 March 2012.
The first directions hearing took place on 10 April 2012. Mr Phillips indicated, during the directions hearing, his opposition to the application, and the Tribunal made orders for both parties to file submissions. The Tribunal encouraged both parties to seek advice in regard to the jurisdiction, as well as to settlement options.
The second directions hearing took place on 25 May 2012. During this directions hearing, the Tribunal encouraged the parties to seek a mediated outcome and adjourned proceedings for a few minutes to enable the parties to meet in private to discuss settlement options. The dispute was not resolved.
The hearing took place on 4 July 2012. The Tribunal comprised Dr De Villiers and Sessional Member Peter Mittonette, who is a registered builder with extensive experience in the building industry. The Tribunal explained to the parties that the question of jurisdiction would first be dealt with in its reasons for decision, whereafter, if the dispute falls within the jurisdiction of the Tribunal, the substance of the dispute will be considered. During the hearing, the Tribunal adjourned proceedings twice to give the parties an opportunity to settle the dispute. They were unsuccessful in coming to a mutually acceptable arrangement.
Messrs Leeuwenburg, Phillips, Ranger and Frost gave evidence during the hearing.
The decision was reserved.
Questions to be resolved
Several questions arose during the course of the proceedings, namely:
1)Does the dispute fall within the jurisdiction of the Tribunal?
2)If so, was there faulty or unsatisfactory workmanship on the part of Mr Phillips?
3)If so, should an order to pay be made?
4)If so, what quantum should be paid to Mr Leeuwenburg?
If the answer to question 1 is in the negative, there is no need to deal with questions 2, 3 and 4 since a court of competent jurisdiction may be required to determine those questions.
Does the dispute fall within the jurisdiction of the Tribunal?
Mr Phillips takes issue with the proceeding being heard in the Tribunal. He says that a complaint of this nature should have been directed at the Plumbers Licensing Board in accordance with the Water Services Licensing Act 1995 (WA) (WSL Act), and specifically the Water Services Licensing (Plumbers Licensing and Plumbing Standards) Regulations 2000 (WA). Mr Phillips says that it is the responsibility of any person who complains about plumbing work to bring such a concern to the attention of the Plumbers Licensing Board for investigation. It is only after a complaint had been investigated by the Plumbers Licensing Board and the plumber had failed to adequately remedy it, that another plumber may undertake remedial work. Mr Phillip likens the Tribunal to a 'kangaroo court', since he is of the view that the Tribunal does not have authority or jurisdiction to deal with the complaint.
Mr Leeuwenburg is of the view that the dispute falls within the jurisdiction of the Tribunal and it is consistent with the assistance and advice he received from the Building Commission.
Neither of the parties was legally represented, which means the assistance the Tribunal received from the parties in regard to the proper construction of the relevant legislation was minimal.
Finding
The Tribunal finds that the dispute does not fall within the jurisdiction of the Tribunal.
The reason for this conclusion appears from the proper construction of the relevant parts of the following statutes:
•BS(CRA) Act;
•Home Building Contracts Act 1991 (WA) (HBC Act); and
•Building Services (Registration) Act 2011 (WA) (BS(R) Act).
As is explained in detail below, the Tribunal finds that the plumbing done by Mr Phillips does not fall within the meaning of 'regulated building service', as required by s 5(1) of the BS(CRA) Act, in order for the Tribunal to consider a complaint about a building service. The reason for this finding is that:
a)Mr Phillips is not, for purposes of these proceedings, a 'registered building service provider';
b)the work was not 'home building work'; and
c)the work is not otherwise 'prescribed'.
While this finding, and the technical nature thereof, may be frustrating to Mr Leeuwenburg, the rationale giving rise to it is as follows:
In order for the complaint to fall within the jurisdiction of the Tribunal, it must comply with the requirements of s 5(1) of the BS(CRA) Act.
Section 5(1) of the BS(CRA) Act relevantly provides as follows:
Subject to the regulations, a person may make a complaint to the Building Commissioner about a regulated building service not being carried out in a proper and proficient manner or being faulty or unsatisfactory. (Emphasis added)
The key question is if the plumbing done by Mr Phillips can be properly characterised as a 'regulated building service'.
Section 3 of the BS(CRA) Act defines 'regulated building service' as 'any of the following':
(a)a building service carried out by a registered building service provider or an approved ownerbuilder;
(b)home building work that is -
(i)carried out by a person for another person under a home building work contract or other contract or arrangement for gain or reward; and
(ii)not carried out for a person who is in turn obliged to perform the work under another contract;
(c)any other service or work prescribed for the purposes of this definition;
The Tribunal will consider each of these requirements for a 'regulated building service' in subparagraphs (a)-(c) separately:
(a) building service carried out by a registered building service provider or an approved ownerbuilder;
The plumbing work done by Mr Phillips is not a 'regulated building service' under subparagraph (a). This finding is based on the following reasons.
The plumbing done by Mr Phillips can be classified as a 'regulated building service' if two requirements are met, namely:
1)the plumbing must be a 'building service'; and
2)Mr Phillips must have done the plumbing in the capacity of a 'registered building service provider'.
In regard to requirement 1, plumbing work is, according to s 3 of the BS(CRA) Act, a 'building service' as defined in s 95I of the WSL Act. The work therefore meets the first threshold so as to constitute a 'building service'.
In regard to requirement 2, the answer is more complex. 'Registered building service provider' has the meaning as per s 3 of the BS(R) Act (refer to s 3 of the BS(CRA) Act). Section 3 of the BS(R) Act defines 'registered building service provider' as either of the following:
(a)a building service practitioner;
(b)a building service contractor;
'Building service practitioner' and 'building service contractor' are defined respectively by s 17 and s 18 of the BS(R) Act and the Building Services (Registration) Regulations 2011 (WA). Mr Phillips, as registered plumber, is not included as being a 'building service practitioner' or a 'building service contractor'.
The result of this analysis is that since Mr Phillips is not, for the purposes of these proceedings, a 'building service practitioner' or a 'building service contractor', he is not a 'registered building service provider' and, as a result, the plumbing work he did in 2007 does not constitute a 'regulated building service' as required by s 3 of the BS(CRA) Act.
(b) home building work that is -
(i) carried out by a person for another person under a home building work contract or other contract or arrangement for gain or reward; and
(ii) not carried out for a person who is in turn obliged to perform the work under another contract;
The plumbing work done by Mr Phillips is not a 'regulated building service' under subparagraph (b). This finding is based on the following reasons.
In order to establish if the work was 'home building work', the meaning must be sought from s 3(1) of the HBC Act (refer to s 3 of the BS(CRA) Act).
'Home building work' is defined by s 3(1) of the HBC Act as the whole or part of the work of:
(a)constructing or reconstructing a dwelling including an existing dwelling and/or stratatitled dwelling; or
(b)placing a dwelling on land; or
(c)altering, improving or repairing a dwelling, including a stratatitled dwelling; or
(d)constructing or carrying out any associated work in connection with -
(i)any work referred to in paragraph (a) or (b); or
(ii)an existing dwelling, including a stratatitled dwelling;
Section 3(1) of the HBC Act relates to 'constructing' of a dwelling; 'placing' of a dwelling on land; 'altering, improving or repairing' a dwelling; and 'constructing' or carrying out 'associated work' in connection with constructing or placing a dwelling or work on an existing dwelling.
The Tribunal will, hence, consider the meaning of 'construct', 'associated work' and 'dwelling' under the HBC Act.
'Construct' is defined by the HBC Act (s 3(1)) as:
construct in relation to a dwelling means perform any work commencing with the preparation of the site and ending with the completion of the dwelling (including any associated work) and includes -
(a)painting where that is part of the work included in a contract; and
(b)the provision of lighting, heating, water supply, drainage, sewerage, gas and other like services;
'Associated work' is defined by the HBC Act (s 3(1)) as:
associated work includes site works, swimming pools, spas, pergolas, carports, garages, sheds, fencing, retaining walls, paving, driveways, landscaping and other like works;
'Dwelling' is defined by the HBC Act (s 3(1)) as:
dwelling means a building occupied or intended for occupation solely or mainly as a place of residence;
The Tribunal must therefore properly characterise the nature of the plumbing work done by Mr Phillips, so as to establish if it falls within the definition of 'home building work'.
It is not disputed that Mr Phillips undertook all of the plumbing work at the time when the subdivision of the land occurred. The work did not relate to a dwelling being constructed, placed or renovated, although it was anticipated, in light of the subdivision, that ultimately a dwelling would be constructed. However, at the time of Mr Phillips' work, there were no specific plans for a dwelling, and the plumbing was not directly related to, or associated with, the dwelling that was ultimately constructed. Mr Leeuwenburg only acquired the lot, obtained approval and commenced construction of a dwelling some four years after the subdivision had been done.
Some of the work Mr Phillips did at the time of subdivision included the installation of a sewer junction to be used in future when a dwelling is constructed. These works were, however, not in relation to any dwelling that existed at the time; a dwelling that was in the process of construction; or, a dwelling of which plans had been approved. The work of Mr Phillips was entirely related to preparation of land for subdivision, although it was anticipated that, at some point in the future, a dwelling would be constructed.
The plumbing works were commissioned in 2007 for the original developer and Mr Leeuwenburg only acquired the lot some time after the subdivision had occurred. Mr Leeuwenburg commenced construction of his house in late 2011.
Although the BS(CRA) Act and the HBC Act aim to bring complaints about 'building service' and 'home building work' within the single jurisdiction of the Tribunal, it does not necessarily flow that all work, even work that is remotely associated with the eventual construction of a dwelling, can be classified as 'home building work' or a 'building service'. The Tribunal is mindful of the observation by his Honour Kirby, P in Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719 at 722, who stated that:
… it is proper for courts to endeavour to so construe inter related statutes as to produce a sensible, efficient and just operation of them in preference to an inefficient, conflicting or unjust operation. This is the approach which I take to the task of statutory interpretation in hand.
…
The aim of providing a single, integrated forum for the resolution of home building disputes does not mean that complaints about any work that is done in the preparation of land for purposes of residential development automatically falls within the ambit of s 5(1) of the BS(CRA) Act. The plumbing work done by Mr Phillips, for the purposes of subdivision of land prior to any existing or identifiable proposal to construct a dwelling, is too far removed in order for the work to be classified as 'home building work'. The work must, in whole or in part, be the work of constructing, placing or renovating a dwelling.
Although installation of 'sewerage' is included in the definition of 'construct', it does not mean that any sewerage work that is done for purposes of subdivision of land necessarily falls within the definition of 'home building work'; 'construct'; or, 'dwelling'. There must be a sufficient link or association between the work of Mr Phillips and the construction, placing or renovation of the dwelling of Mr Leeuwenburg. Although the provision of sewerage services at the time of subdivision is a necessary requirement for the ultimate construction or placing of a dwelling, the reference to 'sewerage' work in the definition of 'construct' refers to the essential work that is required for, and closely associated with, the construction of the dwelling.
Although sewerage falls within the definition of 'construct' and therefore may constitute 'home building work', there is, however, a point where plumbing services for the ultimate provision of sewerage of a dwelling are sufficiently removed from the construction of a dwelling, so as to fall outside the definition of 'home building work'. The inclusion of 'associated work', as defined in s 3 of the HBC Act within the meaning of home building work, is consistent with this view and supports the Tribunal's conclusion. To be 'associated work', the work must be sufficiently related to the construction, renovation or placing of a dwelling on land. The word 'associate' means more than a 'mere nexus'. (Winslow Constructors Pty Ltd v Mt Holden Estates Pty Ltd; Lanigan Baldwin Pty Ltd v Mt Holden Estates Pty Ltd [2004] VSCA 159 (Winslow Constructors) (8 September 2004) at 119).
Any such dwelling, or intended dwelling, must be identifiable in some form before it can be said that the work is 'associated work' with the dwelling. Plumbing work done in isolation of the construction of a dwelling lacks the necessary connection to 'home building work'. It will always be a matter of fact and degree whether that connection is established.
The Tribunal is not satisfied that the work of Mr Phillips is sufficiently closely related to the construction of the house for Mr Leeuwenburg, so as to constitute 'home building work'. The plumbing undertaken by Mr Phillips was a requirement for subdivisional approval and not related to any construction or placing of a dwelling. The fact that, in due course, a dwelling was to be constructed on the subdivided lot does not automatically bring the work of Mr Phillips within the definition of 'home building work'.
The Tribunal therefore finds that the work done by Mr Phillips does not constitute 'home building work' for the purposes of the BS(CRA) Act.
This finding is consistent with the conclusion reached in Winslow Constructors at 122. In those proceedings, which concerned legislation that was not all too dissimilar from the those under consideration in this matter, the Supreme Court of Victoria found as follows about infrastructural works that were carried out prior to the construction of dwellings:
122.Having regard to these conclusions, I conclude that the civil engineering and infrastructural work carried out by the appellants does not fall within the scope of the [Domestic Building Contract Act 1995 (Vic)]. Rather, such works must be carried out in accordance with the requirements contained in the [Subdivision Act 1988 (Vic)]. Accordingly, I am satisfied that the work carried out by the appellants does not fall within s 5 of the DBC Act and does not constitute "domestic building work" within the meaning of s 3 of that Act. It necessarily follows that the appellants were not each a "builder" within the meaning of s 3 and s 54(1) of the DBC Act and that the dispute between the parties was not a "domestic building dispute" within the meaning of s 54(1) of the DBC Act. Consequently [the Victorian Civil and Administrative Tribunal] does not have jurisdiction under the DBC Act to determine the dispute between the parties.
(c) any other service or work prescribed for the purposes of this definition;
The plumbing work done by Mr Phillips is not a 'regulated building service' under subparagraph (c), since the work is not prescribed in any other way.
Conclusion
The plumbing work done by Mr Phillips does not comply with the requirements of s 5(1) of the BS(CRA) Act.
The dispute therefore does not fall within the jurisdiction of the Tribunal.
The application must therefore be dismissed for want of jurisdiction.
In light of this finding, there is no need for the Tribunal to address the substance of the application for an order to pay. The reasons why the Tribunal does not believe it is appropriate to consider the substance of the dispute are:
a)if the decision about jurisdiction is appealed and it is found that the Tribunal had erred, a decision can be made about the substance without any further inconvenience to the parties since all the evidence had been given; and
(b)if the decision regarding jurisdiction is not appealed and the substance of the dispute it pursued in a court of competent jurisdiction, then it is not proper for the Tribunal, which does not have jurisdiction, to make any findings about the issues in dispute.
Order
The Tribunal makes the following order:
The application is dismissed for want of jurisdiction.
I certify that this and the preceding [66] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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DR B DE VILLIERS, MEMBER
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