Melmint Pty Ltd and Cummings and Anor
[2008] WASAT 76
•19 March 2008 (Edited reasons delivered extemporaneously)
MELMINT PTY LTD and CUMMINGS & ANOR [2008] WASAT 76
| Link to Appeal : | [2008] WASC 225 |
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 76 | |
| BUILDERS' REGISTRATION ACT 1939 (WA) | |||
| Case No: | CC:1369/2007 | 18 MARCH 2008 & 19 MARCH 2008 | |
| Coram: | MR P McNAB (MEMBER) | 18/03/08 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave dismissed | ||
| 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 - 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
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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
Result:
Application for leave dismissed
Category: B
Representation:
Counsel:
Applicant : Mr T Brickhill
Respondent : Selfrepresented
Solicitors:
Applicant : Brickhills Barristers & Solicitors
Respondent : Self-represented
Case(s) referred to in decision(s):
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
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Summary of Tribunal's decision
1 In this matter the Tribunal refused leave to review a decision of the Building Disputes Tribunal (BDT) where the BDT had ordered a builder (Melmint Pty Ltd) to remedy certain defective plasterworks.
2 It was common ground between the parties that the plasterworks were defective and must be replaced in their entirety. The differences arose as to who had (or who had taken) the responsibility for such repairs.
3 Essentially, the builder argued that the BDT had erred by not finding that when pursuant to a private arrangement between the owners and the builder for the owners to finish off the plasterworks, the owners then took full responsibility for the works which at that point were defective.
4 The owners argued, in effect, that neither they nor their agents knew about the condition of the plasterworks; that they had never agreed to take on such responsibility; that if they had known the condition of the plasterworks they would never have agreed to such responsibility; and that, in any event, under statute, the builder remained responsible for the defects in relation to the work it had undertaken.
5 This Tribunal agreed with the owners and the BDT. There was sufficient evidence available to draw the conclusions reached by the BDT. No error had been shown in relation to their findings on the alleged shift of responsibility. It was open for the BDT to find that the builder remained responsible for the faulty or unsatisfactory works.
6 In short, the parties had agreed that the owners would finish the relevant work, not take over responsibility for the repair of defects in that work.
7 Leave was therefore refused and the application was dismissed. The Tribunal also indicated that it would not, in any event, grant leave in respect of complex matters of law that had never been raised or agitated in the BDT.
8 What follows is an edited, and formally revised, version of the reasons for decision of the Tribunal which has been taken from the transcript of proceedings.
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Introduction
9 In this matter, the applicant builder, Melmint Pty Ltd, has sought leave to review a decision of the Building Disputes Tribunal (BDT) reflected in three transcripts of related evidence taken before that tribunal.
10 For the record, I will identify the relevant reasons that form the basis of the application for leave as dated 19 March 2007, (transcript references pages 34 38, taken from those documents). These reasons were also provided separately in a document received from the BDT labelled as "Transcript of Decision".
11 Briefly, the outstanding dispute before the State Administrative Tribunal (Tribunal) relates to faulty plasterwork in a house built by the applicant builder for the respondents, Mr and Mrs Cummings. There is no question that the work is relevantly defective and must be replaced; the only issue relates to who has responsibility for this problem.
12 In this matter there will be a refusal of leave for the following reasons.
Test for leave
13 The test for leave is summarised in the decision of the District Court of Western Australia, in Content Living Pty Ltd v McIntosh [2005] WADC 173 (Content Living) at [13] and [14]. There, the learned Commissioner of the District Court sets down the test of LA Jackson DCJ, found in a District Court decision Watson v Wallington [1999] WADC 84. There, his Honour said, at [25]:
"Although it is a matter for the exercise of judicial discretion, in general, the tests to be applied to the application for leave to appeal from a decision of the Committee should be as follows.
1. The applicant must show
(a) either the decision was wrong or the decision is at least attended with sufficient doubt to justify the granting of leave, and,
(b) substantial injustice would be done by leaving the decision unreversed.
2. The consideration of the criterion is 1(a) in the context
(a) that it is designed to restrict appeals,
- (b) that there is a prima facie presumption in favour of the correctness of the decision of the Committee, and
(c) that its proceedings will, by its nature, be relatively informal."
14 I emphasise those last-mentioned points, that is, the leave procedure is designed to restrict appeals; there is a prima facie presumption in favour of the correctness of the decision; and thirdly, the proceedings in the BDT will be, by their nature, relatively informal.
15 See also, Tangent Nominees Pty Ltd v Edwards [2005] WASAT 119 (aff'd: [2006] WASC 45).
16 There was one other factor mentioned in Content Living, at [14], and it has some relevance to the applicant's case:
"In Cardinal Constructions Pty Ltd v Reed & Anor [1999] WADC 99 at [4] L A Jackson DCJ added to the principles set out in Watson v Wallington a further relevant factor to take into account on the granting of leave. This was the factor whether an important point of wide application arose for consideration on the appeal. His Honour's summary of the law in regard to leave to appeal pursuant to s 41 of the [BR Act], including the additional factor, was adopted by Commissioner Reynolds in Morrisey Ors v GFRC International Pty Ltd [2001] WADC 24."
17 Mr Brickhill, counsel for the applicant, has emphasised that there may be an important point of wider application on the consideration of this appeal and I accept that. But that matter has got to be seen in the context of the other matters to which I have alluded to; that is, the test is to be taken as a whole.
18 Here, it is submitted that the BDT's decision was wrong or that the decision is at least attended with sufficient doubt because, to summarise Mr Brickhill's arguments, the tribunal below did not draw proper conclusions about what has been labelled as the "shift of responsibility" in this Tribunal, when the owners "took over" from the builder the completion of the plastering and associated painting works.
19 This crudely summarises a complex list of matters, but that is the effect of what is being argued, and thus much will turn upon the characterisation of the knowledge, relevant transactions at the time, and the matter that was being
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- transferred in terms of the taking of responsibility.
20 All of those matters, it may be inferred, were found in favour of the owners by the BDT.
Matters raised for the first time
21 There were other matters agitated on the leave application which this Tribunal has indicated would not be permitted, in any event, to be the subject of a grant of leave. These relate to certain matters of estoppel and other issues that were not argued in the BDT.
22 However, I accept the theoretical possibility that if an open-ended grant of leave had been made that Mr Brickhill might then have the opportunity of testing these matters as questions of law. I have to add, although it is strictly irrelevant given the ruling of the Tribunal on the leave question, that this Tribunal would reserve for future consideration the extent to which, if any, either the BDT or the Tribunal have any equitable-type jurisdiction: cf Pearce v Germain (2006) 45 SR (WA) 357 suggesting that the answer to such questions is in the negative.
The nature of the BDT's task
23 It is important to recall the nature of the statutory protection which is given under s 12A of the Builders' Registration Act 1939 (WA) (BR Act). That regime of statutory protection, to some degree, makes secondary aspects of common law and contractual responsibility - although I accept that they might be important from case to case. Here, we are essentially dealing with a statutory jurisdiction authorising the determination of complaints, that building work has not been carried out in a proper and workmanlike manner.
24 That was the issue that was before the BDT, and that was the task that Parliament committed to them to determine on the facts available to them, given (as is noted above) that its proceedings will have a degree of informality about it and that the rules of evidence do not apply - as is the case also in this Tribunal.
25 I note that the reasons here are ex tempore reasons of the BDT, reasons which were given after a short adjournment. Such reasons must not, in the words of the superior courts, be raked over with a finetooth comb looking for error. (See for example, Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291 per Kirby J for advice to this effect.) That is a standard or test which applies to the review of any tribunal.
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26 Here the real question will be: was there a correct framing of the relevant issue and was there sufficient evidence to find one way or another in relation to that issue? Even though this Tribunal might perhaps have come to a different conclusion on some aspects of the matter, this is not a proper ground for the grant of leave.
27 In any event, in this matter, I make it clear that I am of the opinion that the BDT reached a proper finding on the evidence available to it. I note that the evidence included the book of documents (pages 1 - 91) and the evidence also reflected in the transcripts to which I have already referred.
The alleged shift in responsibility
28 The question before the BDT, as I have already indicated, and which was in substance agitated in this Tribunal for the purposes of deciding the leave question, was whether there was a shift or taking of responsibility by the owners sufficient to, in effect, discharge the statutory consumer protection obligations which parliament placed upon the builder. That question was, in effect, answered "no" below.
29 I have accepted the argument - and it may be inferred that the BDT also accepted this same argument - that when there is a proved taking of responsibility by the owner then liability is or may be subsequently reduced on the part of the builder.
30 Mr Brickhill here has attempted to show that full responsibility was so taken by the owners. There is no question that there were a long series of transactions, changes and discussions between the parties, and it is evident that that was happening right up to and during the hearing before the BDT; indeed the same happened in this Tribunal. Such discussions were concerned with who would take responsibility for various alleged faults. The parties are to be congratulated for continuing discussions, but in these circumstances it remains a question of what the owners actually took responsibility for.
Finding of the BDT at [6] of the Transcript of Decision
31 The principal finding of the BDT (at [6] of the Transcript of Decision) was that the shift in responsibility occurred as follows:
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- "… what [the owners] were presented with at that stage was not what they had contracted for which was a plastering job as part of the building works that was at an appropriate standard of quality workmanship."
32 It is common ground (and there was an abundance of expert evidence to this effect for the BDT to have, in any event, reached the same conclusion) that the plasterworks, at the relevant point, that is when there was a "shift in responsibility", were not built to the requisite standard.
33 Shortly put, the argument of the builder in this case is that the BDT ought to have concluded that the shift in responsibility meant that the owners accepted responsibility for whatever stage (or condition) the plastering works were at, and as at the time that they took responsibility. The BDT disagreed with that argument, and that finding was, in this Tribunal's respectful view, available to them on the evidence, and is in any event consistent with the statutory obligations imposed upon a builder under the BR Act; that is to say, consistent with the statutory scheme in relation to the rectification of work which is subsequently found not to be proper and workmanlike.
Finding of the BDT at [8]
34 I also note for the record that as a corollary of that finding, at [8], the BDT also held as follows:
"The evidence that the [BDT] has received has indicated that no advice to this extent [concerning a possible remedy at that stage] was provided by the [builder] or indeed by [its] subcontractor to the [owners] that this was the situation [that is, the situation requiring rectification at the point at which responsibility was said to be shifted]."
35 Ultimately, this matter turns upon a mixed question of fact and law: as I have said, at what stage did responsibility shift?; and what was the extent of that responsibility?
36 The BDT found, in effect, that that responsibility, whatever it precisely was, (and there is some discussion in the evidence about the "rebate" or discount as the BDT described various transactions between the parties, indicating a particular context) was for an appropriate standard of quality workmanship to be in place.
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37 As I have indicated, there is sufficient expert evidence to indicate (and the BDT so found) that quality workmanship required an oil-based sealer to be applied before the point at which responsibility was accepted. I think that that finding was not only open to them, as I have indicated; but it is compelled by the state of the evidence which I have reviewed for the purposes of considering leave in this matter.
38 In any event, it was a decision made by a specialist tribunal within the statutory framework for determining the issue that they had to decide, which was concerned with proper and workmanlike standards of building in a particular case.
Finding of the BDT at [11]
39 I finally draw attention to the other finding of the BDT which is also relevant, and that is at [11]. That is the comment by the BDT that Mr Cummings was not under any instruction by the builder "that he should do something else", and that is part of a discussion by the BDT of the circumstances and duties at the point at which responsibility shifted.
40 As this Tribunal reads that comment in the context of the entire transcript and the balance of the reasons, it was a reference to there being no informed shifting of responsibility to the owners. There is little doubt that it may be inferred that there would have been some other transaction or relationship had that matter been disclosed and discussed fully between the parties to the extent that the BDT found, in effect, was necessary. This is an approach which this Tribunal does not find error with.
41 There have been several arguments that somehow this position was changed by the knowledge alleged to be imputed to the owners by the agent of the owners, but I say again that there was sufficient material before the BDT for it to come to the conclusion at the point at which responsibility shifted, that the work was not in a sufficient state of workmanlike quality as, in effect, required by the BR Act.
Conclusions and orders
42 In these circumstances it would be inappropriate to grant leave to review the matter when these various findings were open on the law and the evidence as this Tribunal understands the case.
43 I stress again that at this stage of the proceedings, the Tribunal is not a review tribunal. There is a preliminary requirement for leave. I do not think in this case that sufficient material has been put forward to justify the grant of leave and, in particular, I do not think that this Tribunal should revisit a consumer protection "standard" which was
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- clearly open for the BDT to find and apply upon the evidence that was before it.
44 The Tribunal refuses leave under s 41 of the BR Act. The orders of this Tribunal in all related matters currently before it (which have been heard and determined together) are as follows:
1. Related proceeding CC 1327 of 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 of 2007 is dismissed by reason of the State Administrative 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.
I certify that this and the preceding [44] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER
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