LILLEE and CATTAPAN CONSTRUCTIONS PTY LTD

[2009] WASAT 33

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

ACT: BUILDERS' REGISTRATION ACT 1939 (WA)

CITATION:   LILLEE and CATTAPAN CONSTRUCTIONS PTY LTD [2009] WASAT 33

MEMBER:   MS J HAWKINS (MEMBER)

HEARD:   24 NOVEMBER 2008

DELIVERED          :   26 FEBRUARY 2009

FILE NO/S:   CC 728 of 2008

BETWEEN:   DENNIS LILLEE

HELEN LILLEE
Applicants

AND

CATTAPAN CONSTRUCTIONS PTY LTD
Respondent

Catchwords:

Building dispute - Application for leave to review - Procedural fairness - Adequacy of reasons - Findings of Building Disputes Tribunal open to it

Legislation:

Builders' Registration Act 1939 (WA), s 12A(1a), s 36(1), s 41, s 41(2)

Result:

Application for leave to review dismissed

Category:    B

Representation:

Counsel:

Applicants:     Mr R Shaw

Respondent:     Mr A W Buchan

Solicitors:

Applicants:     Lavan Legal

Respondent:     Hotchkin Hanly

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

J­Corp Pty Ltd and Ly [2006] WASAT 132

Tangent Nominees Pty Ltd and Edwards [2005] WASAT 119

Watson v Wallington [1999] WADC 84

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. The applicants sought leave to review the decision of the Building Disputes Tribunal made 9 April 2008 reflected in an order to remedy No 324/2007-08 for which written reasons were published on 19 September 2008.

2. The application for leave concerned the Building Disputes Tribunal's reasons in respect to four items of workmanship complaints to the Building Disputes Tribunal, being:

   1.Item 2 ­ Cracked tiles to lift pit trapdoor.

   2.Item 12 ­ Drummy tiles to ensuite bathroom wall.

   3.Water pooling to outside deck.

   4.Items 20 and 21 ­ Cracking to windows.

3. The State Administrative Tribunal was satisfied that the findings made by the Building Disputes Tribunal in respect to these complaints were open to it.  All grounds were dismissed and consequently the application for leave was dismissed.  An issue arose as to whether the Building Disputes Tribunal had failed to afford the parties with an opportunity to be heard following evaluations made at a site inspection.  As there was no information placed before the State Administrative Tribunal by the applicants of the process followed by the Building Disputes Tribunal, either by affidavit or transcript, the State Administrative Tribunal was unable to ascertain if such a breach of procedural fairness occurred.  It also held that as the Building Disputes Tribunal is required to act informally, there is no requirement that every procedural step taken by the Building Disputes Tribunal be cited in their reasons.

Introduction

1. By an application dated 14 May 2008, the applicants seek leave to review the decision of the Building Disputes Tribunal (BDT) published 9 April 2008, reflected in an order to remedy No 324/2007­08 (BDT's decision).  The applicants' complaints to the BDT related to a range of workmanship issues concerning the construction by the respondent of a dwelling for the applicants at 13 South Perth Esplanade, South Perth.  At the time of making the application to this Tribunal, the applicants were only in receipt of the BDT's order to remedy.  Consequently, the grounds stated in the application were brief.

2. Subsequent to making the application, the BDT published its written reasons for decision on 19 September 2008.

3. Those reasons made clear that the BDT had dealt with several complaints by the applicants against the respondent.  The complaint, the subject of this application, was the subject of a hearing before the BDT on 17 August 2007.  This was followed by site inspection by the BDT on 24 August 2007.  Following that site inspection, the final hearing before the BDT took place on 3 April 2008.

4. The applicants sought leave in respect to several items of the complaint that were dismissed by the BDT.  The original application, filed with this Tribunal on 15 May 2008, sought leave concerning the following items referred to in the BDT's decision:

   1)Item 2 ­ Cracked tiles to the lift pit trapdoor;

   2)Item 4 ­ Insufficient gradients to bathroom;

   3)Item 12 ­ Drummy tiles to ensuite wall;

   4)Item 18 ­ Water pooling on outside deck; and

   5)Items 20 and 21 ­ Cracks to ground and second floor windows.

5. At the hearing of this matter on 24 November 2008, the applicant sought and was granted leave to withdraw the application in respect to item 4 of the BDT's decision.

6. The hearing therefore only concerned items 2, 12, 18, 20 and 21 of the BDT's decision.

7. Section 41 of the Builders' Registration Act 1939 (WA) (BR Act) provides that a party to proceedings before the BDT may apply to this Tribunal for a review of such a decision. Section 41(2) of the BR Act provides that such an application cannot be made unless the Tribunal grants leave to an applicant to do so.

8. The Tribunal therefore has a discretion to grant leave.  To do so, it must be shown that:

   a)the decision, in respect of which leave is sought, is wrong or at least attended with sufficient doubt to justify the grant of leave; and

   b)a substantial injustice would be done by leaving the decision unreversed.  (See Tangent Nominees Pty Ltd and Edwards [2005] WASAT 119) at [35] ­ [44].

9. What constitutes a substantial injustice is dependent on the circumstances of each case.  It may be sufficient to show that there is a significant question of law to be considered.  (See J­Corp Pty Ltd and Ly [2006] WASAT 132.)

10. The Tribunal will be slow to grant leave unless there is no discernable basis for the decision or where the rules of natural justice have been breached ­ see Tangent Nominees supra.

Grounds for leave

1. At the hearing on 24 November 2008, both parties were legally represented.

2. Prior to the hearing, the BDT had provided a bundle of documents filed on 3 October 2008 (Exhibit 3).

3. In addition, the applicant filed an affidavit of Helen Roberta Lillee sworn 30 October 2008 (Exhibit 4).

4. Both parties also filed written submissions.  The applicants relied on the written submissions filed on 31 October 2008 referring to the grounds upon which they relied.  Those grounds were not identical to the original grounds filed by the applicants on 15 May 2008.  However, as the BDT published its written reasons subsequent to the applicants filing their application and no major point on this issue was taken by the respondent's counsel, the matter in this Tribunal proceeded on the basis that the applicants' submissions filed 31 October 2008 contained the grounds and submissions relied upon by the applicants.

Applicants' grounds and submissions

1. The applicants' grounds and written submissions concerning items 2, 12, 18, 20 and 21 are set out as follows:

   Item 2 ­ Cracked tiles to the lift­pit trapdoor

   1The evidence of the BDT was to the effect that:

   1.1When the BRB inspected the site there were 2 cracked floor tiles to the pit cover and 1 to the tile surround.  The BRB inspector concluded that this was defective work.

   1.2Mrs Lillee gave evidence that 12 of the 16 tiles in the pit cover and 4 of the surround had cracked.

   1.3Mr Needs, the tiling expert, gave evidence to the effect that this was as a result of defective laying of the tiles.

   2.It was not open for the BDT to come to the conclusion that the cracks [sic] had appeared were due to misuse of the trapdoor.  There was no evidence presented to that effect.

   3.It was not open for the BDT to find that the Builder could be excused for faulty design.  The Builder did not build the lift trap door to the contract drawings.  It cannot then complain that the design is the cause of the problem:  see Cable v Hutchison (1969) 123 CLR 143.

   4.It was not open for the BDT to find that the builder is not responsible for failure of the tiles themselves.  The performance of the materials supplied is an absolute obligation on the part of the Builder and falls under one or both of the limbs in Section 12A of the Builders Registration Act. It is similar to the Builder using untreated steel nails on sites near the ocean. See Young & Martin v McManus Childs [1969]1 AC 454.

   Item 12 ­ Drummy tiles to en­suite wall

   5.The evidence is to the effect that in the en­suite there was a substantial proportion of tiles to the en­suite that were drummy.  The BDT, on its inspection, said it was satisfied that there was a drummy sound to a number of wall tiles, at least more than that noted by the inspector.

   6.There was also evidence from Mr Needs, the tiling expert, that this was a serious issue over the long term.

   7.The BDT has misled itself in over­emphasising the replacement cost.

   8.If there is more than an isolated drumminess of wall tiles the appropriate remedy is to replace them.  The BDT had mis­applied the appropriate test in that regard.

Item 18 ­ Water pooling on outside deck

9.This is an issue that was not dealt with by the BDT.  Evidence was given that water ponds on the deck and the tiling needs to be screeded to the waste outlet.

Item 20 ­ Crack to second floor window, Item 21 ­ Cracked ground floor window

10.As to item 20, the BDT had misunderstood the rights of subrogation with respect to insurance. The owners are entitled to a remedy for faulty workmanship. The owners' arrangements with their insurers are irrelevant for BDT purposes. See Kelly & Ball, Principles of Insurance Law p9101; ICWA v Kightly (2005) 30 WAR 380, per Steytler P; Sutton, Insurance Law in Australia at pp1246­9.

Respondent's submissions

1. The respondent filed written submissions in response in respect to each item, which are set out as follows:

   Item 2 ­ Cracked Tiles to Lift Pit Trapdoor

   8.A claim for redress under section 12A of the Act is dependent on the BDT being satisfied, to the requisite standard, that building work has not being [sic] carried out in a proper and workmanlike manner by reason of it being faulty or unsatisfactory (section 12A(1)) or in some manner other than the building work being faulty or unsatisfactory (section 12A(1a)).  The applicants' complaint was brought under section 12A(1) of the Act.

   9.The complaint in respect of this item is that the building work was faulty or unsatisfactory insofar as the tiles in the area identified were cracked.  The BDT was not satisfied that the cracked tiles amounted to faulty or unsatisfactory building work as;

   9.1there was no evidence that the respondent's building work had caused the cracks; and

   9.2there was credible explanation for the defect insofar as opening and closing of the lift pit door could have led to the cracks.

   10.The BDT's finding that use of the lift pit door could have caused the cracks was clearly open to it following a site inspection where it was noted that:

   10.1the door was extremely heavy and incapable of being manually opened or closed by an individual without aid; and

   10.2where the door joined the floor would be a point considerable impact.

   11.It is contended by the applicants that it was not open for the BDT to find the builder was not responsible for any failure of the tiles themselves.  The BDT did not make such a finding.

   12.The applicants contend in their submissions the lift pit door was not constructed in accordance with the contract drawings, and that by reason of this the design of the door should not afford the builder a defence to the complaint.

   13.The applicants have not put before the State Administrative Tribunal transcript of the BDT proceedings and it is unclear whether any evidence was led before the BDT as to the manner in which changes to the lift pit door came to be made.  It is now available for the applicants to agitate this on an issue before the State Administrative Tribunal.

   Item 12 ­ Drummy Tiles to Ensuite Wall

   14.The BDT found in its reasons for decision, that drumminess to the tiles did not amount to faulty or unsatisfactory building work, within the meaning of section 12A of the Act.  This was open to the BDT on the evidence described in its reasons for decision.

   15.The BDT noted in its reasons for decision that if it found that the building work was faulty or unsatisfactory, there still existed a discretion under section 12A as to whether to make an order to remedy or an order to pay.  This is noted at page 3 of the BDT's written reasons for decision, where it is stated that the BDT's discretion to order a remedy under section 12A is subject to notions of reasonableness, consistent with the principles stated in J­Corp Pty Ltd v Gilmore [2005] WASCA 136.

   16.The BDT held that even if the applicants' expert evidence was accepted regarding the possibility of future problems, the BDT was not inclined to exercise its discretion under section 12A to require rectification, because to do so would offend those notions of reasonableness to which section 12A is subject, particular [sic] in circumstances where:

   16.1no tile had actually failed and fallen from the wall;

   16.2the respondent had stated he would replace any tile that falls from the wall; and

   16.3rectification of drummy tiles may necessitate replacement of all the wall tiles.

   17.The applicants have not demonstrated any error of reasoning on the part of the BDT in the application of the evidence or the law in respect of this item.

   Item 18 ­ Water Pooling on Outside Deck

   18.Item 18 of the BDT decision complains of a lack of deformable joint material to the perimeter joints and lack of perimeter movement joints in decks 1, 2 and 4.  This item was dismissed.  The BDT in its written reasons for decision noted that:

   18.1The BRB inspector stated that there was no requirement under the Building Code of Australia for deformable joint material in this location.

   18.2There was no evidence of any manifest workmanship issue in the relevant areas and that the complaint did not amount to unsatisfactory building work.

   19.If the applicants properly intended to refer to item 19 of the BDTs [sic] decision (which relate to pooling of water on deck 3 and was dismissed) this was also considered by the BDT in its written reasons for decision and the finding that there was no faulty or unsatisfactory building work was open on the evidence referred to in the reasons for decision.

   Item 20 ­ Cracked Second Floor Window, Item 21 ­ Cracked Ground Floor Window

   20.In its written reasons for decision the BDT found that the evidence relied upon by the applicants, to establish the defect complained of, was to be accorded little or no weight as the authors of the documents, put up as evidence by the applicants in support of these complaints, were not called to be cross examined.  The applicants did not discharge the evidentiary onus upon them and that onus was never shifted to the respondent.  In the absence of sufficient evidence, the complaints were properly dismissed.

   21.As regards item 20, the BDT queried whether the remedy sought by the applicants, being an order to pay in favour of their insurer, was within the power prescribed by Section 12A of the Act.  This was a legitimate question, but not one that was determinative of the Tribunal's finding on this item of complaint.

   Conclusion

   22.The applicants' submissions to the State Administrative Tribunal are similar to those put to the BDT, alternatively they had the opportunity to make these submissions to the BDT.

   23.The applicants have failed to demonstrate that the BDT decision was wrong or attended with sufficient doubt to justify a grant of leave, nor does the BDT decision give rise to a question of law that justifies review.  Further, no substantial injustice will result if the decision is left unreversed.

2. Despite the Tribunal enquiring both at a directions hearing and at hearing whether the applicants intended to place transcript of the BDT proceedings before this Tribunal, the applicants, who were legally represented, chose not to obtain a copy of the transcript of the proceedings held before the BDT.  The bundle of documents provided by the BDT, Exhibit 3, did however include the transcript of the evidence given by Mr Needs at the hearing before the BDT on 16 August 2007.  That part of the transcript, however, was of no assistance in the determination of this dispute.

3. Following the hearing before this Tribunal on 24 November 2008, the parties were given liberty to file any further submissions by no later than 1 December 2008.

Applicants' supplementary submissions

1. Only the applicants filed supplementary submissions on 1 December 2008.  Those submissions state as follows:

   Procedural Fairness

   1To the extent the BDT relied on its findings at a site inspection which were adverse to the Applicant's case, the Applicants contend that the BDT erred in failing to provide them with an opportunity to be heard on those findings.

   2The requirements of natural justice required the BDT to give the Applicants such opportunity to be heard: See Shirley Sloan v Merril Holdings [2000] WASC 99 and J­Corp v Leadbitter [2008] WASAT 266.

   Obligation to give adequate reasons

   3The Applicants contend that the written reasons published by the BDT on 19 September 2008 failed to meet the obligation to give adequate reasons for its decision.

   4The requirement of the BDT to give reasons requires sufficient information to be given to allow either:

   4.1The unsuccessful party to evaluate the prospects of success on appeal; or

   4.2To permit [an appeal body] to evaluate the process of reasoning.

   Re Carey; ex parte Exclude Holdings Pty Ltd [2006] WASCA 219 by Martin CJ, at para 78,

   5This has been applied in Stockdale v Shire of Mundaring [2007] WASAT 34, at page 7 and Silent Vector Pty Ltd t/a Sizer Buildings and Squarcini [2008] WASAT 39, at pages 8­9.

Consideration

Ground 1 ­ Item 2 ­ Cracked tiles to lift-pit trapdoor

1. This ground concerned complaints relating to alleged cracking to tiles of the lift pit trapdoor.  The applicants submit that the BDT failed to take into account evidence that the number of cracked tiles to the pit cover was more than two.  The applicants rely on a letter from Mrs Lillee to the BDT, dated 13 October 2008, disagreeing with the BDT's building inspector's report and alleging that 12 out of the 16 of the lift pit trapdoor tiles were cracked and that four of the surround tiles were cracked.  That letter was annexed to Mrs Lillee's affidavit (Exhibit 4).

2. The applicants further submit that the BDT's reasons suggested three possible causes for damage to the lift pit trapdoor, including damage by slamming shut the lift pit trapdoor.  The applicants suggest therefore that the BDT erred as it has referred to these possible causes without reasoning on the evidence whether or not the builder was responsible for those causes.

3. In addition, the applicants maintain that the BDT failed to afford the applicants procedural fairness as it made adverse findings against them based on a site inspection and failed to give the applicants the opportunity to be heard on those findings.  The applicants suggest these adverse findings were the BDT's comments as to possible other causes of the cracking.

4. Finally, the applicants also allege that the BDT's reasons were inadequate.

5. The applicants' complaint to the BDT was pursuant to s 12A(1a) of the BR Act which states as follows:

   (1a)Where, on complaint being made to it by a person for whom building work has been carried out, the Disputes Tribunal is satisfied that in some respect (other than its being faulty or unsatisfactory) the building work has not been carried out in a proper and workmanlike manner the Disputes Tribunal may, having regard to the extent of the failure to carry out the building work in a proper and workmanlike manner in relation to the whole of the building work, by order in writing served on the person who carried out the building work order him to ­

   (a)remedy the building work that has not been carried out in a proper and workmanlike manner within such reasonable time as is specified in the order; or

   (b)pay to the person for whom the building work was carried out ­

   (i)such costs of remedying the building work that has not been carried out in a proper and workmanlike manner as the Disputes Tribunal considers is reasonable; or

   (ii)such sum of money as the Disputes Tribunal considers reasonable to compensate him for the failure to carry out the building work in a proper and workmanlike manner,

   and any costs or sum of money so ordered to be paid constitutes a debt due to the person to whom it is so ordered to be paid and is recoverable by him in a court of competent jurisdiction.

1. Dealing firstly with the assertion that the BDT failed to afford the applicants with the opportunity to make submissions following the site inspection, the applicants have chosen to proceed with this application without taking the opportunity of placing a copy of the entire proceedings of the transcript before this Tribunal.  This is despite having had the opportunity to do so.  As such, it is not known whether the BDT referred at the hearing to any evaluations it made at the site inspection and if it did, then gave the parties opportunity to make submissions in respect to those evaluations.  Without the transcript it is impossible to ascertain whether the BDT failed to afford the applicants the opportunity to be heard in respect to any such evaluation.  The applicants' counsel was not present at the hearing before the BDT and therefore could not assist on this issue.  Neither has any affidavit been provided by the applicants to support the assertion made that the BDT failed to afford them procedural fairness.

2. Without such information, I cannot be satisfied that in this case the BDT did not disclose any evaluation it made at the site inspection, to the parties, at the resumed hearing.  I am unable therefore to ascertain whether there has been a denial of procedural fairness.

3. Despite the lack of transcript, the applicants' counsel submitted that the reasons of the BDT should reflect in any event what procedural steps the BDT took.  For the reasons that follow, I do not accept that submission.

4. The BDT is required to act informally.  A nitpicking approach to the processes adopted by the BDT, including the reasons, should not be adopted (see Watson v Wallington [1999] WADC 84).

5. It is not necessary that every procedural step taken by the BDT be recited in its reasons for decision.  As long as the reasons of the BDT are sufficient to deduce the findings upon which they are based, they can be considered adequate.  In this case I consider the BDT's reasons are adequate.  The BDT's findings on item 2 make clear that it did not consider that any cracks in the tiles arose due to the nature of the building work when they state:

   There is no evidence of the nature of any building work that led to this in that the cracks in the tiles appeared after the construction had been completed.  The Tribunal could not be satisfied that the cracked tiles were unsatisfactory building work.

6. Their reasons go on to speculate what may have been the cause of any cracking.  In doing so, they refer to the lift pit trapdoor being extremely heavy to open without assistance and that where the door joined the floor would be a point of considerable impact.  The reasons also refer to the design of the door and its use leading to cracking or, alternatively, that the tiles used may have had some inherent defect.

7. Overall, the BDT was not satisfied that upon the evidence it could conclude that the cracks in the lift pit door were as a result of faulty or unsatisfactory workmanship.

8. As to the cracks in the lift pit trapdoor, the applicants complain that the BDT failed to take into account Mrs Lillee's evidence that 12 out of 16 tiles in the lift pit trapdoor were cracked.  The applicants rely on a letter of Mrs Lillee, of 13 October 2006, disagreeing with the BDT's inspection report that there were only two cracks.  Although that letter appears as part of the bundle of documents before the BDT, without the transcript, it is unknown whether this discrepancy was again drawn to the attention of the BDT at the hearing.

9. Further, applicants' counsel was unable to refer to any part of the expert evidence relied upon by the applicant that made clear that such cracks arose due to poor workmanship.  Although the BDT's inspector's report of 5 October 2006 considered the presence of hairline cracks in two tiles of the lift pit trapdoor to be unsatisfactory, the report does not clearly state that the cracks arose due to poor workmanship.  When confronted with such evidence, and in the absence of expert evidence relied upon by the applicants that the cracks were caused by poor workmanship, the findings that there was no evidence that the nature of the building work led to the cracks was open to the BDT.

10. As to the complaint that the BDT referred to possible causes for the cracking and failed to reason whether the builder was responsible, the BDT found that there was no evidence that any cracks in the tiles of the lift pit trapdoor were due to the nature of the building work.  They also found the cracks appeared after the building work was completed.  As previously stated, applicants' counsel was unable to point to any of the applicants' expert evidence which specifically stated that the cracking of the tiles in this area was due to poor workmanship.  Accordingly, this was a finding that was open to the BDT.  Simply because the BDT then went on to allude to various possible reasons for the cause of such cracking does not mean they fell into error.  In the absence of explicit expert evidence from the applicants that the cracking was not as a result of poor workmanship, the BDT then simply went on to speculate what may have been the cause of the cracking.  The BDT's comments as to possible other causes for the cracking were merely a means by which the BDT highlighted that on the evidence before it, it was not satisfied the complaint of unsatisfactory workmanship for this item had been made out.  For these reasons I do not consider the BDT was making findings as to possible other causes and therefore it was unnecessary for the BDT to reason whether or not the builder was responsible for those causes.

11. Ground 1 is therefore dismissed.

Ground 2 ­ Item 12 ­ Drummy tiles to ensuite bathroom wall

1. The applicants complain the BDT erred as there was evidence before it that a substantial proportion of tiles to the ensuite bathroom were drummy.  It was argued that the BDT over­emphasised the cost of replacing the tiles and, as such, misled itself.

2. The BDT referred to its findings for item 5 set out at pages 8, 9 and 10 of their reasons, as their findings for item 12.

3. Although the BDT found upon inspection that the area of drummy tiles was to an area greater than found by the relevant experts, it made note that on inspection there were no tiles showing partial separation nor in the four and a half years since construction had any tiles fallen off.  It made clear that testing by sound for drumminess was one method of ascertaining the extent of the bonding material to the back of the tiles.  It went on to state that:

   While the Tribunal accepts there is some evidence that there has been non compliance with a standard it does not necessarily follow in this instance that the work was accordingly unsatisfactory and the Tribunal does not make such a finding.

4. Again, here the issue is whether the findings by the BDT were open to it.  I am satisfied that they were.  Although the BDT found that the tiles in the ensuite bathroom were drummy, they also noted following their site inspection that none of the tiles had fallen off or lifted in the four and a half year period since the tiles had been laid.  This was evidence that was before it and not disputed by the applicants.  Accordingly, it was open to the BDT on that evidence to find that there had not been unsatisfactory building work.

5. I do not accept the applicants' submission that the BDT erred by over­emphasising the cost of rectification work.  They make no mention of cost.  Rather, they appear to suggest that the only way to be sure that the tiles had been improperly laid would be to remove them.  Their reasons emphasise that to ascertain if the appropriate level of bonding material had been applied could result in a domino effect of cracking in other tiles.  In this case, although the BDT accepted there was some evidence, via the existence of drummy tiles, that the work may have been unsatisfactory, their reasons make clear that they gave more weight to the evidence of lack of partial separation of tiles or lifting of tiles.  Their conclusions concerning whether the laying of the tiles was unsatisfactory was therefore not reliant upon the cost involved to replace the tiles.  Rather, it was based on the failure of the tiles to have fallen off or lifted in the time since they had been laid.  This was a conclusion open to the BDT upon the evidence before it.

6. For the reasons expressed above, therefore, ground 2 is dismissed.

Gound 3 ­ Water pooling to outside deck

1. This issue was referred to by the applicant as item 18 of the original complaint to the BDT.

2. The applicants' written submissions complain that this was not an issue dealt with by the BDT.

3. At the hearing of this application, the applicants' counsel was asked as to what decks this complaint related.  Counsel for the applicant could not state to which deck this complaint related.  As the transcript of the hearings before the BDT had not been provided, the applicants' counsel could not advance any argument on this ground.

4. Accordingly, as it was not clear as to which deck of the building in question this complaint related, this ground must be dismissed.

Ground 4 ­ Items 20 and 21 ­ cracking of windows

1. The applicants raised two concerns in relation to these items.  They firstly submitted that the BDT fell into error in relation to their findings concerning the insurance claim for these items.  Their second submission was in effect that the BDT had evidence before it that the windows cracked due to a defect in the window frames.  On this issue, they rely on an insurance assessor's report and a report from a glazing company.

2. Essentially, the applicant contends that this was sufficient evidence upon which the BDT could find that the cracks in these windows were as a result of faulty or unsatisfactory building work.

3. The BDT's reasons concerning these items firstly finds that the applicants do not have standing to bring the claim, as they had transferred all their rights to their insurer as a result of having the windows repaired under a policy of insurance.  I accept the applicants' submission on this point that the BDT fell into error.  However, that finding was one made in the alternative.  The alternative finding was open to the BDT and therefore no substantial injustice results in the error made by the BDT concerning the standing of the applicants. 

4. In the alternative, the BDT found as follows:

   In any event there is a contest between the parties as to if the building work is faulty or unsatisfactory.  The alleged building work appeared to have occurred about 18 months after practical completion.  Each of the parties have produced reports that go some way to supporting the case they each wish to make.

5. Neither the applicants' counsel or respondent's counsel were aware of which reports were being referred to by the BDT.

6. It appears from the evidence before the BDT the only documents that were available to the BDT concerning the cause of the glass breakage were those attached to the affidavit of Mrs Lillee sworn 30 October 2008.  There is a letter from Double Glazing Australasia which is undated.  There is also a letter from Crawfords, insurance assessors, dated 24 November 2004.  Mrs Lillee has deposed that these letters were before the BDT.  No issue was taken by the respondent's counsel on this point.

7. The applicant argues that on the basis of this evidence, the BDT should have come to the conclusion that there was a logical basis or reason for the cracking, in that there was an inherent defect in the windows, and in the absence of any explanation by the builder, the builder should be responsible for rectification.

8. The BDT's reasons suggest there were conflicting reports relied upon by the parties.  Their reasons do not specify the reports to which they refer.  They go on to dismiss these items because the authors of the reports had not been produced to enable the evidence contained in those reports to be tested.  Further, they refer to the fact that the BDT was unable to inspect the damage as the fault had been repaired.

9. Without the transcript, there is no way of ascertaining whether the reports to which the BDT refers are the letters to which the applicant refers to in the affidavit of Mrs Lillee.  The transcript may well have clarified this issue.  Given that the respondent did not offer any alternative explanation as to what evidence was before the BDT on this issue, it can be presumed that the letters referred to above were the only evidence before the BDT.

10. Although it would have been more helpful if the BDT had specifically identified the reports to which they refer, their reasons make clear that they could not reach any clear conclusion on these complaints as the authors of the reports were not called to give evidence in person nor were they available for cross­examination.  In assessing this evidence, the BDT has therefore given an adequate explanation as to why the evidence before it on these items was not sufficient.  Although the reasoning of the BDT could have been clearer, I am satisfied, for the reasons expressed, that the reasons were adequate.  Therefore, I consider ground 4 should be dismissed.

Orders

1. The application for leave to review is dismissed.

I certify that this and the preceding [59] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MS J HAWKINS, MEMBER