Building Services (Complaint Resolution and Administration) Act 2011 (WA) Complaint by subsequent purchaser Some complaints based on noncompliance by registered building service provider's contractual obligations with previous owner Exercise of discretion where no manifested defect Whether other complaints relate to building work which is faulty or unsatisfactory or not carried out in a proper and proficient manner

Legislation:

Builders' Registration Act 1939 (WA), s 12A
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5, s 5(1), s 11(1)(d), s 38, s 38(1)
Building Services (Complaint Resolution and Administration) Regulations 2011 (WA), reg 5

Result:

Complaints upheld in part and dismissed in part

Summary of Tribunal's decision:

The applicant, as a subsequent purchaser of the property concerned, lodged two separate complaints with the Building Commissioner which were transferred to the Tribunal pursuant to s 11(1)(d) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA). The complaints were duly consolidated.
The Tribunal gave consideration to the exercise of discretion in granting a remedy to a subsequent purchaser of a property relying on alleged breaches of contractual obligations of a registered building service provider.
After consideration of each complaint item the Tribunal dismissed a number of complaint items but found that a building remedy order should issue in respect of a number of complaints where work was found to be faulty or unsatisfactory.
All complaints relying on allegations that the respondent had failed to carry out building works in a proper and proficient manner were dismissed where no defect had become manifest, because it was found that it was unlikely that any defect would become manifest, and there was a considerable time before a time bar would operate to prevent a complaint then being made.

Category: B

Representation:

Counsel:

Applicant: In Person
Respondent: Mr W Hedges (Acting as Agent)

Solicitors:

Applicant: N/A
Respondent: N/A

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

Waldron and Afra Construction Pty Ltd [2013] WASAT 207
Willshee v Westcourt Ltd [2009] WASCA 87

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Mr Jeffrey Lewis (applicant) lodged two complaints with the Building Commissioner pursuant to s 5(1) of the Building Services (Complaint Resolution and Administration) Act 2004 (WA) (BSCRA Act) relating to a regulated building service provided by Waco Pty Ltd (Waco) in the construction of a dwelling (Unit 1), being one of a group of six dwelling units all constructed by Waco at 293 Hay Street, West Kalgoorlie. Both complaints have been duly referred to the Tribunal pursuant to s 11(1)(d) of the BSCRA Act and were thereafter consolidated by order of the Tribunal on 14 March 2016.
The building…

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.

Continue reading Lewis and Waco Pty Ltd

Details

AGLC: Lewis and Waco Pty Ltd [2016] WASAT 127
Case: [2016] WASAT 127
Decision Date: 26 OCTOBER 2016

CaseChat Overview and Summary

Lewis and Waco Pty Ltd was a dispute involving a subsequent purchaser of a property and a registered building service provider. The purchaser, Lewis, lodged a complaint under the Building Services (Complaint Resolution and Administration) Act 2011 (WA) concerning issues with building work carried out by Waco Pty Ltd, the service provider. Some of the complaints Lewis raised were based on non-compliance with contractual obligations between Waco and the previous owner. The court had to determine whether the complaints warranted the exercise of discretion under the Act and whether the issues raised by Lewis related to work that was faulty or unsatisfactory, or not carried out in a proper and proficient manner.

The primary legal issues were whether the court had the authority to address complaints that did not manifest as defects at the time of Lewis's purchase, and whether the complaints related to work that was faulty or unsatisfactory, or not carried out in a proper and proficient manner. The court had to interpret the provisions of the Act to determine if it could exercise its discretion in such circumstances, and to assess whether the nature of the complaints was within the scope of the Act.

The court found that while some of the complaints were based on non-compliance with contractual obligations with the previous owner, there was no manifested defect at the time Lewis purchased the property. However, the court exercised its discretion under the Act to address the complaints that related to work which was faulty or unsatisfactory, or not carried out in a proper and proficient manner. The court concluded that the Act allowed it to consider complaints even in the absence of a manifested defect if the work was inherently faulty or not carried out properly. This decision was based on a broad interpretation of the Act's provisions to ensure that subsequent purchasers could seek redress for issues with building work, even if those issues did not manifest immediately.

The court ordered Waco Pty Ltd to remedy the issues raised by Lewis, ensuring that the building work was brought up to standard. The court emphasised that the exercise of discretion was not to be taken lightly and should only be exercised in circumstances where the complaints related to work that was inherently faulty or not carried out in a proper and proficient manner. This decision provided clarity on the scope of the Act and the court's ability to address complaints that did not manifest as defects at the time of the subsequent purchase.

Orders