LEEUWENBURG and PHILLIPS - [2012] WASAT 149

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…

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: [2012] WASAT 149
Decision Date: 19 JULY 2012

CaseChat Overview and Summary

The Leeuwenburg and Phillips case involved a dispute between the respondents, Leeuwenburg, and the appellant, Phillips, concerning whether certain plumbing work installed at the time of the subdivision of land qualified as a 'regulated building service' under the Building Services (Complaint Resolution and Administration) Act 2011 (WA). The case arose from a complaint made by Leeuwenburg against Phillips, an accredited plumber, about the quality of plumbing work performed during the subdivision process. Leeuwenburg argued that Phillips's work fell under the regulatory framework of the Act, while Phillips contended that the work was not subject to the Act's provisions.

The primary legal issue before the court was the interpretation of the term'regulated building service' as it appeared in the Building Services (Complaint Resolution and Administration) Act 2011 (WA). Specifically, the court had to determine whether the plumbing services provided during the subdivision of land constituted a 'regulated building service'. This interpretation was crucial because it would dictate whether Phillips's actions were subject to the regulatory mechanisms and complaint resolution processes outlined in the Act.

The court examined the statutory language and the context in which the term 'regulated building service' was used. It considered the purpose of the Act, which was to provide a mechanism for resolving complaints about building services. The court noted that the Act aimed to ensure that consumers received satisfactory building services and that practitioners met certain standards. In interpreting the term, the court looked at the broader legislative framework and the common law principles of statutory interpretation. Ultimately, the court concluded that the plumbing services in question were not 'regulated building services' under the Act because they were installed at the time of the subdivision of land and were not part of the ongoing maintenance or repair services that the Act was designed to regulate.

As a result of the court's reasoning, the appeal was dismissed, and Leeuwenburg's complaint about the plumbing work was not subject to the regulatory framework of the Building Services (Complaint Resolution and Administration) Act 2011 (WA). The court's decision clarified the scope of the Act and provided guidance on the types of building services that are regulated under the legislation.

Orders