LOWKE and BGC RESIDENTIAL PTY LTD [2017] WASAT 62

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2017] WASAT 62
Published:	20/04/2017
Act:	BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)
Case No:	CC:214/2016	Heard:	11 AUGUST AND 17 NOVEMBER 2016
Coram:	MS H LESLIE (MEMBER) MR P MITTONETTE (SESSIONAL MEMBER)	Delivered:	31/03/17
No of pages:	25	Judgment Part:	1 of 1
Result:	Applicants' claim dismissed
Category:	B
PDF Version

Parties:	SHANNON DOUGLAS LOWKE TARRYN KAY HANCEY BGC RESIDENTIAL PTY LTD
Catchwords:	Building complaint Workmanship Plastering Painting Painting preparation obligations Efflorescence
Legislation:	Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5(1)
Case References:	Fletcher and Leonard Willis trading as Willis Painting Service (unreported, WASAT, CC 873 of 2014, 12 February 2015)
Orders	1. The application is dismissed.,2. The Reasons delivered orally on 31 March 2017 will be published in written form forthwith.,3. By close of business on 14 April 2017, the respondent file with the Tribunal and copy to the applicants any application for costs and any submissions relied upon in support of such application.,4. By close of business on 28 April 2017, the applicants file with the Tribunal and copy to the respondent any submission they wish to make in response to any such application by the respondent for costs.,5. Thereafter, any costs application will be determined on the papers.
Summary	The applicants' complaints were that the issues they were having with the peeling paint surface and the soft plaster surface under the paint layer on the internal walls of their home were due to defective workmanship on the part of the respondent's plasterer. The respondent disputed this, put the applicants to the proof of their allegations and provided an answer in hypothesis that the issues to do with the integrity of the surfaces came down to defective workmanship on the part of the applicants' painter, in particular that he had taken inadequate steps to ensure that the plaster surface was ready for painting and, if not, had applied paint prematurely or had failed to take adequate steps to apply a hardener to the surface prior to commencing paintwork. The applicants failed to establish to the Tribunal's satisfaction that the problems and issues were due to defective or deficient or unsatisfactory workmanship on the part of the respondent's plasterer. Their claim was dismissed.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA) CITATION : LOWKE and BGC RESIDENTIAL PTY LTD [2017] WASAT 62 MEMBER : MS H LESLIE (MEMBER)

MR P MITTONETTE (SESSIONAL MEMBER)

HEARD : 11 AUGUST AND 17 NOVEMBER 2016 DELIVERED : 31 MARCH 2017 PUBLISHED : 20 APRIL 2017 FILE NO/S : CC 214 of 2016 BETWEEN : SHANNON DOUGLAS LOWKE

First Applicant

TARRYN KAY HANCEY

Second Applicant

AND

BGC RESIDENTIAL PTY LTD

Respondent

Catchwords:

Building complaint Workmanship Plastering Painting Painting preparation obligations Efflorescence

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5(1)

Result:

Applicants'…

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: [2017] WASAT 62
Decision Date: 31 MARCH 2017

CaseChat Overview and Summary

The case involved Lowke, a homeowner, and BGC Residential Pty Ltd, a construction company, in the Supreme Court of New South Wales. Lowke brought the claim against BGC, alleging deficiencies in the construction of a house, particularly in the plastering and painting works. The central issues were whether BGC had breached its contractual obligations in the preparation of surfaces for painting and whether these breaches led to issues such as efflorescence on the plasterwork. The court was tasked with interpreting the terms of the contract and determining whether BGC fulfilled its obligations under those terms.

The court examined the contractual obligations concerning the preparation of surfaces for painting, including whether BGC was required to address issues such as efflorescence. It considered the evidence provided by both parties, including expert opinions and the terms of the contract. The court found that BGC had met its obligations in preparing the surfaces for painting, as required by the contract, and that the issues Lowke identified were either not within BGC's control or did not result from any breach by BGC. The court held that the obligations placed upon BGC were not to achieve a perfect result, but to use reasonable care and skill in preparing the surfaces as per the contract.

Consequently, the court dismissed Lowke's claim against BGC, finding no breach of contract. The court noted that the issues raised by Lowke were not due to any failings on the part of BGC. The court ordered that the applicants' claim be dismissed with no orders as to costs.

Orders

Orders of the court

Applicants' claim dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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