MELMINT PTY LTD and CUMMINGS & ANOR [2008] WASAT 76

Link to Appeal :

[2008] WASC 225

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2008] WASAT 76
Act:	BUILDERS' REGISTRATION ACT 1939 (WA)
Case No:	CC:1369/2007	Heard:	18 MARCH 2008 & 19 MARCH 2008
Coram:	MR P McNAB (MEMBER)	Delivered:	18/03/08
No of pages:	10	Judgment Part:	1 of 1
Result:	Application for leave dismissed
Category:	B
PDF Version

Parties:	MELMINT PTY LTD RODNEY STUART CUMMINGS ANNA CUMMINGS
Catchwords:	Building and construction Faulty or unsatisfactory building work Residential building Whether work done in a proper and workmanlike manner Plasterworks Application for leave to review a decision of the Building Disputes Tribunal (BDT) Arrangements reached between the parties for owner to finish plasterworks Plasterwork faulty BDT subsequently ordered all work to be remedied by builder by redoing entire plasterwork Shift of responsibility argument BDT found that work not at requisite standard at point when responsibility for completion shifted to owners BDT finding in effect no informed taking over of responsibility for defective work BDT finding in effect no imputed knowledge by the agent of the owners as to what additional work had to be done prior to handing over works for completion Leave refused Decision of BDT within statutory framework of their dispute resolution powers and decision open to them on the evidence before them Tribunal also declined to grant leave in respect of complex matters not raised below Application for leave to review dismissed
Legislation:	Builders' Registration Act 1939 (WA), s 12A, s 41
Case References:	Content Living Pty Ltd v McIntosh [2005] WADC 173 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Pearce v Germain (2006) 45 SR (WA) 357 Tangent Nominees Pty Ltd v Edwards [2005] WASAT 119 Watson v Wallington [1999] WADC 84
Orders	1. Related proceeding CC 1327/2007 is, by consent, dismissed following upon a reconsideration by the Building Disputes Tribunal, but without prejudice to the right of the applicant to bring fresh proceedings in relation to the same matter following upon any final order of the Building Disputes Tribunal.,2. Related proceeding CC 1369/2007 is dismissed by reason of the Tribunal's refusal to grant leave to review a decision of the Building Disputes Tribunal given on 19 March 2007 (as reflected in an order to remedy dated 1 August 2007) for the reasons given ex tempore in this Tribunal on 19 March 2008.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : BUILDERS' REGISTRATION ACT 1939 (WA) CITATION : MELMINT PTY LTD and CUMMINGS & ANOR [2008] WASAT 76 MEMBER : MR P McNAB (MEMBER) HEARD : 18 MARCH 2008 & 19 MARCH 2008 DELIVERED : Edited reasons delivered extemporaneously on 19 MARCH 2008 FILE NO/S : CC 1369 of 2007 BETWEEN : MELMINT PTY LTD

Applicant

AND

RODNEY STUART CUMMINGS

ANNA CUMMINGS

Respondent

Catchwords:

Building and construction - Faulty or unsatisfactory building work - Residential building - Whether work done in a proper and workmanlike manner -…

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: [2008] WASAT 76
Decision Date: 19 March 2008 (Edited reasons delivered extemporaneously)

CaseChat Overview and Summary

Melmint Pty Ltd and Cummings brought a proceeding in the Supreme Court of New South Wales, seeking leave to review a decision of the Building Disputes Tribunal (BDT). The dispute centred on the quality of plasterwork in a residential building, specifically whether the work was carried out in a proper and workmanlike manner. The BDT had ruled that the plasterwork was faulty and ordered the builder to redo the entire plasterwork, a decision the applicants contested.

The primary legal issues the court had to address were whether the BDT's decision was within its statutory powers and whether the Tribunal correctly found that the responsibility for completing the plasterwork did not shift to the owners until the work was at the requisite standard. The applicants argued that once the owners took over the responsibility for the plasterwork, any subsequent faults should be their responsibility. The court had to determine whether the BDT's findings were reasonable and supported by the evidence presented.

The court found that the BDT's decision was within its statutory framework and was open to them on the evidence presented. The Tribunal correctly assessed that the responsibility for the plasterwork did not shift to the owners until it was at the requisite standard, and there was no informed taking over of responsibility for the defective work. The court also noted that the Tribunal declined to grant leave on complex matters not raised below. Consequently, the application for leave to review was dismissed.

The final orders of the court dismissed the related proceeding CC 1327/2007 by consent, allowing for a reconsideration by the BDT without prejudice to the right to bring fresh proceedings. The court also dismissed the related proceeding CC 1369/2007, upholding the BDT's refusal to grant leave to review their decision.

Orders

Orders of the court

1. Related proceeding CC 1327/2007 is, by consent, dismissed following upon a reconsideration by the Building Disputes Tribunal, but without prejudice to the right of the applicant to bring fresh proceedings in relation to the same matter following upon any final order of the Building Disputes Tribunal. 2. Related proceeding CC 1369/2007 is dismissed by reason of the Tribunal's refusal to grant leave to review a decision of the Building Disputes Tribunal given on 19 March 2007 (as reflected in an order to remedy dated 1 August 2007) for the reasons given ex tempore in this Tribunal on 19 March 2008.

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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