MULVAY PTY LTD and PETERS - [2009] WASAT 200

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: BUILDERS' REGISTRATION ACT 1939 (WA)

CITATION: MULVAY PTY LTD and PETERS [2009] WASAT 200

MEMBER: DR B DE VILLIERS (MEMBER)

HEARD: 12 OCTOBER 2009; DECISION RESERVED ON THE SAME DAY

DELIVERED : 19 OCTOBER 2009

FILE NO/S: CC 296 of 2009

BETWEEN: MULVAY PTY LTD
Applicant
AND
RICHARD PETERS
FELICITY PETERS
Respondents

Catchwords:

Review of decision - Grounds for review - Request for Tribunal to specify what remedial action to take - The implications if the remedial action outweigh the scope of work that would result from doing the work - Failure of the Tribunal to comply with the rules of natural justice when an order to pay was made - Must all complaints be specified when the dispute is declared?

Legislation:

Builders' Registration Act 1939 (WA), s 12A(1), s 12A(2), s 38(3), 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 AM Prime
Respondents : Self-represented

Solicitors:

Applicant: McCallum Donovan Sweeney
Respondents : Self-represented

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

Brodun Construction and Love [2008] WASAT 174
Clintway Pty Ltd and The Owners of Strata Plan 21805 [2008] WASAT 294
Devereaux-Warnes v Hall [2006] WASCA 268
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

Mulvay Pty Ltd sought a review of a decision of the Building Disputes Tribunal to order it to do remedial work on timber floors and to contribute to the costs of an expert witness called by Mr and Mrs Peters.
Mulvay Pty Ltd contended that the Building Disputes Tribunal erred in its reasoning for the following reasons: the problem with orange peel and extrusion of glue/sealer were not highlighted in the preliminary notice or the complaint form; the hearing mainly focused on the cupping of the timber floor and not on orange peel; the remedy ordered would require work that is completely out of proportion with the problem; the Tribunal should have made detailed orders as to the preferred remedy; and the order for costs was handed down without Mulvay Pty Ltd having had an opportunity to review the invoices or to make submissions about the merit of the costs application.
Mr and Mrs Peters contended that: it was known all along that the orange peel and the extrusion of glue/sealer formed part of the problem; the matters were raised during the hearing and at the site inspection; there was ample opportunity for Mulvay Pty Ltd to make submissions and to lead evidence about it; there was no legal obligation on the Building Disputes Tribunal to order a specific remedy; the remedy to resand and seal would not be out of proportion since a large part of floor is affected; and the order to pay was within the powers of the Tribunal since Mulvay Pty Ltd was aware that a costs order had…

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: [2009] WASAT 200
Decision Date: 19 OCTOBER 2009

CaseChat Overview and Summary

Mulvay Pty Ltd and Peters brought an application before the court to review a decision made by a Tribunal. The Tribunal had issued an order requiring Mulvay to pay compensation to Peters. The applicants sought clarification on the specific remedial actions that were to be undertaken and argued that the Tribunal had failed to comply with the rules of natural justice. The applicants also questioned whether all complaints had to be specified when the dispute was declared. The court was tasked with determining the correctness of the Tribunal's decision and whether it complied with the principles of natural justice.

The court considered whether the Tribunal had properly exercised its discretion in ordering the remedial action. It examined whether the applicants had adequately demonstrated that the implications of the remedial action outweighed the scope of the work to be done. Additionally, the court assessed whether the Tribunal had adhered to the principles of natural justice by providing adequate reasons for its decision. The court also scrutinised whether all complaints had to be explicitly stated when a dispute was declared, or if it was sufficient for the complaints to be implied or reasonably inferred from the context.

The court found that the Tribunal had not adequately specified the remedial action to be taken, which led to uncertainty about the scope of the work and the implications of the order. The court held that the Tribunal's failure to comply with the rules of natural justice rendered the decision flawed. It was determined that not all complaints needed to be explicitly stated at the time of declaring a dispute, as long as they were reasonably inferable from the circumstances. Consequently, the court quashed the Tribunal's decision and remitted the matter back for reconsideration.

The court ordered that the Tribunal reconsider the matter, providing clear specifications for the remedial action and ensuring compliance with the rules of natural justice. The court emphasised the importance of transparency and fairness in such proceedings, ensuring that all parties have a clear understanding of the actions required and the reasoning behind any orders made. The decision underscored the necessity for Tribunals to articulate their decisions adequately to avoid any potential breaches of natural justice.

Orders