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

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.
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.
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

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.
Subsequent to making the application, the BDT…

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: [2009] WASAT 33
Decision Date: 26 FEBRUARY 2009

CaseChat Overview and Summary

The case before the court involved Lillee, a building owner, and Cattapani Constructions, a contractor, in a dispute concerning the quality of construction work. The Building Disputes Tribunal had already ruled in favour of the owner, awarding damages and ordering the contractor to pay costs. The contractor sought leave to review the tribunal's decision, arguing that the tribunal failed to observe procedural fairness and did not provide adequate reasons for its decision. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the tribunal had adequately observed procedural fairness and provided sufficient reasons for its decision. The contractor contended that the tribunal did not allow it to fully present its case and that the reasons provided were insufficient to understand the basis of the tribunal's decision. The court had to determine whether the tribunal's process and reasoning were in accordance with the requirements of procedural fairness and whether the findings of fact were open to the tribunal.

The court found that the contractor had not demonstrated that the tribunal's process was unfair or that the reasons provided were inadequate. The court held that the tribunal had acted within its jurisdiction and that the findings of fact were open to it. The court noted that the contractor had not been prevented from presenting its case and that the reasons provided by the tribunal were sufficient to understand the basis of its decision. The contractor's arguments regarding procedural fairness and the adequacy of reasons were rejected by the court.

The court dismissed the contractor's application for leave to review, affirming the decision of the Building Disputes Tribunal. The tribunal's award of damages and order for the contractor to pay costs were upheld. The court found that the tribunal had acted within its jurisdiction and that the contractor's arguments regarding procedural fairness and the adequacy of reasons were without merit. The decision of the tribunal was final and binding on the parties.

Orders

Orders of the court

The application for leave to review is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MS J

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Ratio Decidendi

Legal Principle Established

Established by: MS J

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