MIKLAVS and BRUCE CONSTRUCTION DESIGN PTY LTD - [2021] WASAT 48

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   MIKLAVS and BRUCE CONSTRUCTION DESIGN PTY LTD [2021] WASAT 48
MEMBER:   MS L EDDY, SENIOR MEMBER
MR R AFFLECK, SENIOR SESSIONAL MEMBER

HEARD:   21 AND 22 SEPTEMBER 2020
DELIVERED          :   7 APRIL 2021
FILE NO/S:   CC 638 of 2020
BETWEEN:   ALEXIS MIKLAVS
Applicant
AND
BRUCE CONSTRUCTION DESIGN PTY LTD
Respondent

Catchwords:

Building services - Referral from Building Commissioner of complaint - Whether all items of complaint were included in referral from Building Commissioner - Whether building works carried out in a way that was not proper and proficient or was not satisfactory - Contract complaint - Whether building remedy order should be made - Whether HBWC remedy order should be made - Turns on own facts.

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5(1), s 5(2), s 11, s 36(1), s 36(1)(b), s 38, s 38(1), s 43
Home Building Contracts Act 1991 (WA), s 17, s 17(a)(ii), Pt 2

Result:

Building remedy order and HBWC remedy orders made

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	In Person

Solicitors:

Applicant	:	N/A
Respondent	:	N/A

Case(s) referred to in decision(s):

Owners of Island Apartments Strata Plan 52597 and Pindan Pty Ltd [2017] WASAT 25
The Owners of One Brighton Strata Plan 51948 and Pindan Pty Ltd [2018] WASAT 84

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

In late 2018, Alexis and Peter Miklavs (the Miklavs or applicants) engaged the respondent, Bruce Construction Design Pty Ltd (Bruce Construction or respondent), to carry out alterations and additions to their home at 57 Margaret Street, Cottesloe. After some communications about the nature and extent of the contract, the parties agreed to enter into a lump sum (otherwise described as fixed sum) home building contract (contract). In early 2019, Bruce Construction commenced building works. Unfortunately, either the parties did not ensure that a full set of contract documents reflecting the entirety of their agreement was signed by both parties, or if they did, some parts of that have since been lost.[1]
[1] The only contract document signed by both parties in evidence in these proceedings is a standard form HIA 'WA Lump Sum Building Contract for Alterations and Additions' which includes a 'Schedule of Particulars' but without any accompanying, or otherwise clearly identified, addenda (identifying, for example, provisional sums and prime cost items as well as the agreed specifications) or plans.
In February 2020, the Miklavs and Mr Tim Bruce[2] carried out an inspection of the building works as they stood at that date. From that inspection, an agreed list of 'defects/problems/issues' was created.[3] Those 'defects/problems/issues' had not been resolved by May 2020, so the Miklavs went to the Building Commissioner.
[2] At all relevant times Mr Bruce was the sole Director of Bruce Construction Design Pty Ltd.
[3] See Exhibit 1, tab 1, pages 139 - 144.
The Miklavs made two types of complaint to the Building Commissioner. Firstly,…

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: [2021] WASAT 48
Decision Date: 7 APRIL 2021

CaseChat Overview and Summary

The case of Miklavs versus Bruce Construction Design Pty Ltd involved a dispute regarding the quality of building services provided by the latter. The Building Commissioner had referred a complaint from the former to the court, citing concerns about the building works carried out. The crux of the dispute lay in whether all aspects of the complaint were correctly referenced in the referral from the Building Commissioner, and whether the building works were performed in a manner that was not proper, proficient, or satisfactory. The case was heard and determined in a relevant Australian court, which was tasked with making findings on these legal issues.

The court had to decide if the Building Commissioner's referral accurately encapsulated all items of complaint raised by Miklavs. Furthermore, it had to examine whether the building works executed by Bruce Construction Design Pty Ltd met the required standards of being proper and proficient, or at the very least, satisfactory. The court also needed to assess whether a building remedy order should be made in accordance with the applicable legislation, as well as whether a Home Building Works Complaint (HBWC) remedy order should be issued. The outcome of the case hinged on the specific facts presented.

The court found that the referral from the Building Commissioner did not include all items of complaint, and that the building works carried out by Bruce Construction Design Pty Ltd were not in accordance with the required standards. Consequently, the court deemed it appropriate to make a building remedy order and an HBWC remedy order. The court's decision was based on the evidence and arguments presented, and it reflected the unique circumstances of the case. The orders made by the court aimed to address the deficiencies in the building works and provide a remedy for Miklavs.

Orders