MANOR ROOF RESTORATION and MARGIESON
[2009] WASAT 197
•13 OCTOBER 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: BUILDERS' REGISTRATION ACT 1939 (WA)
CITATION: MANOR ROOF RESTORATION and MARGIESON [2009] WASAT 197
MEMBER: DR B DE VILLIERS (MEMBER)
HEARD: 15 SEPTEMBER 2009
DELIVERED : 13 OCTOBER 2009
FILE NO/S: CC 1002 of 2009
BETWEEN: MANOR ROOF RESTORATION
Applicant
AND
CAROL MARGIESON
Respondent
Catchwords:
Review of decision - Grounds for review - Submission of new evidence during application for review - Difference between fresh evidence and new evidence - New evidence is evidence that could have been made available at the time of the hearing - Fresh evidence is evidence that was not available at the time of the hearing - Failure of a party to attend proceedings or to make submissions - Reliance of a party on the report of an inspector
Legislation:
Builders' Registration Act 1939 (WA), s 41(1)
Result:
The application for leave to review the decision of the Building Disputes Tribunal is dismissed
Category: B
Representation:
Counsel:
Applicant: Mr Roope (Representative)
Respondent: Self-represented
Solicitors:
Applicant: Manor Roof Restoration
Respondent: Self-represented
Case(s) referred to in decision(s):
Devereaux‑Warnes v Hall [2006] WASCA 268
Manor Roof Restoration and Margieson [2009] WASAT 194
Tangent Nominees Pty Ltd and Edwards [2005] WASAT 119
Wilson v Metaxas [1989] WAR 285
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Manor Roof Restoration sought a review of a decision of the Building Disputes Tribunal to pay an amount of $12,000 to Ms Margieson for the fixing of leaks in her roof and to repair damage that was caused by the leaks.
Manor Roof Restoration contended that the decision was made in their absence; that the members of the Building Disputes Tribunal were not experts in roof restoration; that the work could be done much cheaper and that the leaks were caused by gutters and downpipes not being properly cleaned. They further contended that the report of the inspector should have been accepted.
Ms Margieson contended that Manor Roof Restoration should have made their submissions and evidence to the Building Disputes Tribunal. The Tribunal, according to Ms Margieson, acted on the basis of the submissions and evidence before it when it came to its decision. The Building Disputes Tribunal accepted her evidence that she had cleaned the gutters regularly. There was no reason why the decision should be reopened and new evidence submitted due to the failure of Manor Roof Restoration or their subcontractor to participate in the earlier proceedings.
The Tribunal found that the Building Disputes Tribunal acted properly, that it considered all the evidence before it and there was no reason why the decision should be re-opened. It acted on the basis of the submissions and evidence before it; it adjourned proceedings to enable Manor Roof Restoration to participate; and that no breaches of the rules of natural justice had occurred. The Tribunal emphasises that there were important public policy considerations to bring litigation to finality and that if anyone is to blame for any potential inadequacies in the outcome of the Building Disputes Tribunal process, it is Manor Roof Restoration for not making submissions, not calling evidence and not using the opportunities it had to present its case. The Tribunal further found that the application for review cannot be used to submit new evidence that was available at the time of the hearing before the Building Disputes Tribunal, to the Tribunal.
The application for review was dismissed.
Issue
The applicant is seeking leave to review a decision of the Building Disputes Tribunal (BDT) pursuant to s 41(1) of the Builders' Registration Act 1939 (WA).
Background
The application was lodged on 6 July 2009 and the first directions hearing took place on 23 July 2009. The proceedings were adjourned to allow time for the BDT to submit its reasons for decision.
Manor Roof Restoration (Manor Roof) also sought a stay of the decision of the BDT. The application for stay of the Order to Pay was dismissed on 6 October 2009 in matter Manor Roof Restoration and Margieson [2009] WASAT 194.
The hearing for the stay and review were combined on 15 September 2009. The review application continued on 6 October 2009. Mr Roope participated for Manor Roof via telephone from the United Kingdom; Ms Margieson was present and so was Mr Milbourne who did the building work for Manor Roof.
The parties made oral submissions and gave evidence at the same time. Mr Roope made a further written submission, dated 5 October 2009, in which he summarised the concerns with the BDT decision which he had expressed during the review hearing. The parties each made a summary of their position at the final hearing on 6 October 2009. The parties were self-represented.
The Tribunal allowed the process of oral submissions and evidence for the application for stay and the application for leave to review to be combined, on the basis that the parties expressed their desire to bring matters to a close and get finality about their respective rights. The parties were therefore satisfied that they had made available to the Tribunal all information known in regard to both the stay and the review applications.
The Tribunal explained to the parties that the application for leave to review the decision of the BDT will be progressed in two phases. The first step is aimed solely on the question whether leave to review should be granted. If leave is granted, the parties will be invited to make further submissions regarding the merit of the matter and the hearing will be de novo. If leave is refused, the matter is concluded. It is only when leave is granted that additional evidence and information that were not before the BDT may be submitted to the Tribunal.
After conclusion of the hearing, the Tribunal offered the parties an opportunity to meet in mediation under the chairmanship of one of its sessional members, Mr Mouchemore, who is an expert in building matters. The mediation took place on 2 October 2009, but the dispute did not settle.
The Tribunal reserved its decision on 6 October 2009.
Ground for review
Manor Roof, supported by Mr Milbourne who was the subcontractor, in summary contends as follows in support of its application for leave to review the decision of the BDT:
•Manor Roof and Mr Milbourne were not present at the hearing of the BDT and they were being punished by the BDT for the non-attendance.
•They relied on the report and findings of the building inspector instructed by the BDT, and the BDT should have accepted the inspector's report.
•The BDT members did not have adequate qualifications to make a finding of this nature in regard to roof reparation.
•The amount awarded to fix the problem far exceeds the original contract sum.
•The leakage was either caused, or was contributed to, due to blocked gutters and downpipes and this was not taken into account by the BDT.
•New evidence to be produced at the hearing will show that the work can be done much cheaper than the amount awarded by the BDT. The new evidence will also support the contention that the damage was caused by uncleaned gutters and downpipes.
•The BDT should have accepted the report of their inspector who emphasised that the blocked gutters and downpipes contributed to the leaks and damages.
•The company's standing amongst its peers has been diminished by the finding.
Ms Margieson's opposition to the application for review can be summarised as follows:
•She has suffered substantial loss and discomfort due to the leakages during winter and the damage caused by rain.
•She presented her case to the BDT and they made a finding and that finding should be upheld by this Tribunal.
•Mr Roope and Mr Milbourne ignored the BDT process in the same way they ignored her complaints.
•Mr Roope only took the BDT process seriously when he realised he had to pay compensation.
•Manor Roof's dismissive approach to the BDT and to her is further illustrated in their failure to pay her the amount awarded by the BDT. She had to take enforcement proceedings to get Manor Roof to comply with the order of the BDT.
•She gave evidence of the gutters being cleaned twice per year and the BDT accepted her evidence. The fact that there were some leaves on the roof at the time of the inspection does not mean the gutters were blocked when the damage was caused.
•She presented to the BDT several letters to show she had sought quotations for the work to be done. The BDT made its decision on the basis of those quotations.
•Manor Roof should have made their complaints known to the BDT and they cannot seek now to re-argue the case.
Principles for successful review
As explained to the parties during the directions hearing and prior to the hearing, the following principles must guide the decision of the Tribunal in regard to an application for leave to review. These principles are set out in Tangent Nominees Pty Ltd and Edwards [2005] WASAT 119 and follow a previous Supreme Court decision in Wilson v Metaxas [1989] WAR 285 at 294.
Those principles are:
a)it must be shown that the decision in respect of which review is sought is wrong, or at least attended with sufficient doubt to justify the grant of leave;
b)substantial injustice would be done if the decision is unreversed. What constitutes substantial injustice depends on the circumstances of each case;
(c)if there is a significant question of law to be considered; and
(d)the intent and purpose of the legislation may be frustrated if ordinary principles of appeal are applied, and that the Tribunal must therefore be slow to grant leave unless in cases where there is no discernable basis for the decision or where the rules of natural justice have been breached.
Consideration
The Tribunal was provided with a copy of the reasons for decision of the BDT dated 31 July 2009.
The Tribunal has considered the evidence and submissions of the parties, as well as the reasons for decision of the BDT.
The Tribunal concludes, for reasons set out below, that leave for review should not be granted and the decision of the BDT should be affirmed.
The Tribunal came to this conclusion for the following reasons, after it applied the above criteria to the facts before it:
a) The Tribunal is not satisfied that the decision of the BDT is wrong or attended with sufficient doubt so as to justify the grant of leave for the decision to be reviewed.
The Tribunal is satisfied that the BDT considered all the evidence before it prior to coming to a decision. Although Manor Roof may have a different opinion as to the appropriate quantum that should have been awarded, the Tribunal is not convinced that the decision was wrong or attended with sufficient doubt as to justify leave to review.
The BDT acted on the basis of the evidence at its disposal, and while Manor Roof and Mr Milbourne had an opportunity to give evidence, to call experts or to make submissions, they failed to do so. Mr Roope criticises, in his submission, the BDT for not doing proper 'research', but he fails to grasp that it was his duty to provide the BDT with evidence. It is not the BDT's duty to research a matter on behalf of a party. The Tribunal therefore rejects his contention that the BDT should have done more 'research'.
The Tribunal further rejects the innuendos raised by Mr Roope in regard to the qualifications of the BDT panel to deal with issues regarding roof reparations. The BDT panel was constituted in accordance with the relevant legislation and includes persons with expertise in the building industry. If Mr Roope were concerned about the panel not understanding the complexities of roof construction, he should have made submissions and gave evidence or he should have called experts to give evidence. It is the duty of the parties to have assisted the BDT to understand the issues at hand and to come to the correct decision.
Manor Roof now seeks an opportunity in the application for leave to review to introduce new information that should have been presented to the BDT when they had the opportunity to do so. The courts have consistently drawn a distinction between 'fresh' evidence and 'new' evidence: fresh evidence being evidence that was not available at the time of the hearing, while new evidence refers to evidence that was available, or could have been obtained, at the time of the hearing but was not presented to the court for consideration. The evidence of possible causes of the damage and a purported cheaper remedy was clearly available at the time of the proceedings before the BDT and Manor Roof could have made submissions or could have challenged the submissions made by Ms Margieson. Manor Roof failed to do either.
The BDT cannot be criticised for making a decision on the evidence before it. Courts have been reluctant, with very good reason, to allow new information to be presented at an appeal if a party had sufficient opportunity to tender such evidence at the original hearing. Refer in this regard to Devereaux‑Warnes v Hall [2006] WASCA 268, in which the Court concluded, at [26(e)], that:
Finality in litigation is a powerful policy consideration. Except in the most exceptional circumstances, a party is bound by the conduct of his or her case at trial. …
Manor Roof has failed to convince the Tribunal that the decision of the BDT is wrong or attended with sufficient doubt so as to justify leave to review it. It is in the interests of justice that finality is given to these proceedings and the circumstances to re-open the proceedings for new information do not exist.
b) The Tribunal is not satisfied that a substantial injustice would occur if the decision is left unreversed.
The BDT took account of all the evidence before it. Manor Roof has expressed its displeasure at the decision but that does not equate to a substantial injustice. The BDT provided its reasoning of how it calculated the amount on the basis of the evidence before it. The BDT, at [4.3] of its decision, justified in the following way its award of an amount of $12,000:
To complete all repairs according to the quote of R Leach would be in $13,300 which (plus the $650) would be almost $14,000. In view of the problem where builders seeking to repair other contractor's fault charge a substantial amount over and above likely actual costs, we consider that an actual sum of $12,000 would be a reasonable recompense to the Owner for the damages suffered, especially in view of the fact that this is an old house.
The question is not if this Tribunal, based on the same facts, could come to a different decision than the BDT. The question is whether a substantial injustice would occur if the decision of the BDT is unreversed. The Tribunal is satisfied that although Manor Roof may have been able to repair the roof much cheaper than the amount awarded, they had sufficient opportunity to present their case to the BDT and, in failing to do so, must accept the outcome of those proceedings. In his application for review, Mr Roope offered to do some rectification free of charge and the Tribunal therefore allowed an opportunity for mediation but it failed. The time for other settlement offers has passed and this Tribunal can only consider the decision of the BDT and whether leave to review should be allowed. The Tribunal is satisfied that no substantial injustice would occur if the application for leave is refused.
c) There is not a significant question of law to be considered.
Manor Roof accepts they have a duty to repair the roof. It is only the quantum that is in dispute, since Mr Roope contends that part of the problem was caused by blocked gutters and downpipes.
The BDT did however explain the way in which it came to its decision and the calculation of the amount that had to be paid. The BDT explained why it accepted the evidence of Ms Margieson that the roof had been cleaned regularly and that there were no substantial leakages before the work had been done. The BDT further explained why it did not accept the evidence of the inspector that most of the problem was caused by blockage of gutters and downpipes. Both parties were given an opportunity to make submissions, to give evidence, to call experts and to cross-examine each other.
Had Manor Roof attended the hearing, it would have been able to cross‑examine the inspector and Ms Margieson and it would have been able to provide expert evidence.
The bundle of documents of the BDT further shows that, in contrast to Manor Roof, Ms Margieson had submitted several letters from tradesmen about the cost to fix the roof. Refer to the letters from Roof Wise, PRC Building Services, R Leach Building Maintenance and DTS Roof Masters. The BDT accepted the evidence of roof cleaning from Ms Margieson and the quotation provided by her.
This Tribunal therefore does not find any error in law that would justify the grant of leave to review the decision. The Tribunal is satisfied that the BDT made its decision on the basis of the available information.
d) The Tribunal is satisfied that the rules of natural justice were adhered to by the BDT.
Manor Roof and Mr Milbourne had the opportunity to present its case to the BDT. The first scheduled hearing before the BDT was postponed to accommodate the schedule of Manor Roof and yet they again failed to attend the next hearing. They did make a short submission in which they supported the report of the inspector but no further submissions were made or evidence given. In its reasons for decision the BDT, at [2.1], commented as follows:
Mr Roope was therefore clearly aware of the time and date of the hearing. He did not arrange for someone else to represent him. Further[,] the matter had been originally set down for 8 April 2009. On 12 March 2009 Mr Roope had written to say he could not be present because he would be in London, but that he would be back in early May. The matter was adjourned to the date in June to accommodate his alleged absence. The same excuse was given this time. … The matter could not be adjourned nor did the Tribunal see any reason for this.
Mr Milbourne could not provide any cohesive reason why he did not attend the BDT hearing. The Tribunal asked him in the review proceedings why he failed to attend the BDT hearing. He told the Tribunal that he was aware of the hearing but did not ask his employer if he could attend. He also did not apologise to the BDT, and did not make a written submission, and did not request to attend via telephone. The same lack of a credible explanation applies to Mr Roope. Although he was in the United Kingdom at the time, he failed to explain why he did not make more detailed submissions, or seek to attend via telephone link or appoint a person to act on behalf of the company. He refers to the BDT in a rather dismissive way by saying 'they took the easy option' by continuing the hearing in his absence. He fails to recognise that the hearing had been postponed once to accommodate him and that he had to participate in the proceedings to have his evidence taken into account.
It appears as if Mr Roope and Mr Milbourne took a dismissive stance to the BDT process and only realised after the decision had been handed down against them, the seriousness of the issue. This is also reflected in the failure of Mr Roope to heed to the Order to Pay within 14 days and also his failure to apply for a stay, even after Mr Milbourne was cautioned by the Tribunal that the amount had to be paid. Mr Milbourne, who was the agent for Manor Roof at the directions hearing, was made aware repeatedly by the Tribunal that the company had an obligation to comply with the BDT order unless this Tribunal stayed the order. It was only after the bailiff attended Mr Roope's premises that he sought a stay.
As already explained above, the new evidence Manor Roof seeks to tender about a cheaper way to fix the roof cannot be allowed since it had ample opportunity to submit it to the BDT.
Conclusion
In conclusion, the Tribunal finds that there are no grounds upon which leave to review the decision of the BDT should be given. The application for leave to review the decision of the BDT should therefore be dismissed and the decision be affirmed.
Order
1.The application for leave to review the decision of the Building Disputes Tribunal is dismissed.
2.Order to Pay 205/2008/09 of the Building Disputes Tribunal is affirmed.
I certify that this and the preceding [40] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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DR B DE VILLIERS, MEMBER
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