OWNERS OF ISLAND APARTMENTS STRATA PLAN 52597 and PINDAN PTY LTD
[2017] WASAT 25
•2 FEBRUARY 2017
OWNERS OF ISLAND APARTMENTS STRATA PLAN 52597 and PINDAN PTY LTD [2017] WASAT 25
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 25 | |
| BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA) | |||
| Case No: | CC:6/2015 | 19 OCTOBER 2016 | |
| Coram: | MS P LE MIERE (MEMBER) | 2/02/17 | |
| 28 | Judgment Part: | 1 of 1 | |
| Result: | Application to dismiss for want of jurisdiction dismissed | ||
| B | |||
| PDF Version |
| Parties: | OWNERS OF ISLAND APARTMENTS STRATA PLAN 52597 PINDAN PTY LTD |
Catchwords: | Building Services (Complaint Resolution and Administration) Act 2011 (WA) Determination of preliminary issue Whether complaints as set out in complaint schedule filed in Tribunal are the same complaints accepted by Building Commission and referred to Tribunal When is a complaint accepted by Building Commission Interpretation of meaning of complaint |
Legislation: | Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5, s 5(1), s 7, s 8, s 9, s 10, s 11, s 13, s 36, s 37, s 38, s 42, s 43, s 51, s 55, s 57(2), s 68, s 71 Building Services (Complaint Resolution and Administration) Bill 2010 (WA) Building Services (Complaint Resolution and Administration) Regulations 2011 (WA), reg 6, reg 6(2), reg 6(4), reg 7 State Administrative Tribunal Act 2004 (WA), s 9 |
Case References: | Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151 Sparks v Bellotti [1981] WAR 65 The Owners of 38 - 40 Onslow Road, Shenton Park & Anor and C&I Constructions Pty Ltd [2014] WASAT 123 Western Australian Planning Commission v Dungey [2010] WASC 52 |
Orders | 1. Complaint item 1 as set out in the applicant's Schedule of Complaints Requiring Determination filed on 5 April 2016, namely:,'Steelwork finish on verandah, awnings, walkways, gates, fences and basement gates in Buildings 21 and 23 and common areas',is a complaint that was accepted by the Building Commission and properly referred to the Tribunal for determination.,2. Complaint item 4 as set out in the applicant's Schedule of Complaints Requiring Determination filed on 5 April 2016, namely:,'Concrete balcony soffits to apartment balconies in Buildings 21 and 23',is a complaint that was accepted by the Building Commission and properly referred to the Tribunal for determination.,3. The proceeding is adjourned to a further directions hearing at 10 am on 21 February 2017 at 565 Hay Street, Perth, Western Australia in order to program the matter to a final hearing. |
Summary | The respondent alleges that two separate items of complaint as filed by the applicant in the Tribunal as requiring determination were different from the items of complaint filed with the Building Commission and referred to the Tribunal by the Building Commission.,Attached to the original schedule of complaints filed with the Building Commission were two reports from the applicant's expert. Those reports were referred to in the schedule of complaints as supporting the complaint. Greater detail in relation to the items of complaint were in the expert's reports and additionally, could be said to expand the areas of complaint that the applicant claimed required remedial work.,The Tribunal found in the circumstances that the complaint accepted by the Building Commission and referred to the Tribunal included the references in the expert's reports in the original schedule of complaints such that those parts of the reports formed part of the complaint accepted by the Building Commission and referred to the Tribunal.,It was a question of fact as to whether the description of the items of complaint including the references in the expert's report were the same as those sought by the applicant to have determined by the Tribunal. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA) CITATION : OWNERS OF ISLAND APARTMENTS STRATA PLAN 52597 and PINDAN PTY LTD [2017] WASAT 25 MEMBER : MS P LE MIERE (MEMBER) HEARD : 19 OCTOBER 2016 DELIVERED : 2 FEBRUARY 2017 FILE NO/S : CC 6 of 2015 BETWEEN : OWNERS OF ISLAND APARTMENTS STRATA PLAN 52597
- Applicant
AND
PINDAN PTY LTD
Respondent
Catchwords:
Building Services(Complaint Resolution and Administration) Act 2011 (WA) Determination of preliminary issue Whether complaints as set out in complaint schedule filed in Tribunal are the same complaints accepted by Building Commission and referred to Tribunal When is a complaint accepted by Building Commission Interpretation of meaning of complaint
Legislation:
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5, s 5(1), s 7, s 8, s 9, s 10, s 11, s 13, s 36, s 37, s 38, s 42, s 43, s 51, s 55, s 57(2), s 68, s 71
Building Services (Complaint Resolution and Administration) Bill 2010 (WA)
Building Services (Complaint Resolution and Administration) Regulations 2011 (WA), reg 6, reg 6(2), reg 6(4), reg 7
State Administrative Tribunal Act 2004 (WA), s 9
Result:
Application to dismiss for want of jurisdiction dismissed
Summary of Tribunal's decision:
The respondent alleges that two separate items of complaint as filed by the applicant in the Tribunal as requiring determination were different from the items of complaint filed with the Building Commission and referred to the Tribunal by the Building Commission.
Attached to the original schedule of complaints filed with the Building Commission were two reports from the applicant's expert. Those reports were referred to in the schedule of complaints as supporting the complaint. Greater detail in relation to the items of complaint were in the expert's reports and additionally, could be said to expand the areas of complaint that the applicant claimed required remedial work.
The Tribunal found in the circumstances that the complaint accepted by the Building Commission and referred to the Tribunal included the references in the expert's reports in the original schedule of complaints such that those parts of the reports formed part of the complaint accepted by the Building Commission and referred to the Tribunal.
It was a question of fact as to whether the description of the items of complaint including the references in the expert's report were the same as those sought by the applicant to have determined by the Tribunal.
Category: B
Representation:
Counsel:
Applicant : Ms Y Fang
Respondent : Mr McPherson and Ms E Brown
Solicitors:
Applicant : Tottle Partners
Respondent : Corporate Counsel - Pindan Homes
Case(s) referred to in decision(s):
Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151
Sparks v Bellotti [1981] WAR 65
The Owners of 38 - 40 Onslow Road, Shenton Park & Anor and C&I Constructions Pty Ltd [2014] WASAT 123
Western Australian Planning Commission v Dungey [2010] WASC 52
Introduction
1 The applicant is the Strata Council, on behalf of the strata company of the 'Islands', an apartment complex (strata plan no 52597) located in North Coogee.
2 The applicant made a complaint to the Building Commission (complaint) under s 5 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) in respect of alleged faulty or unsatisfactory building work or work not carried out in a proper and proficient manner by Pindan Pty Ltd, the respondent.
3 The Building Commission referred the complaint to the Tribunal under s 11(1)(d) of the BSCRA Act.
4 The respondent contended that a number of items in the applicant's Schedule of Complaints Requiring Determination filed in the Tribunal on 5 April 2016 (Complaint Schedule C) were different, or not the same as the complaints bearing those numbers in the applicant's original complaint filed in the Building Commission on 18 November 2013 (Complaint Schedule A), or the same as those in the revised schedule of complaints filed by the applicant in the Building Commission on or around 22 April 2014 (Complaint Schedule B), and therefore outside the scope of these proceedings and the jurisdiction of the Tribunal.
5 At a directions hearing on 16 August 2016, the Tribunal directed that the jurisdictional arguments contended by the respondent (other than those in relation to complaint items 26, 30 and 31) were to be determined by the Tribunal as a preliminary issue.
6 The preliminary issue was heard by the Tribunal on 19 October 2016. At that time the parties informed the Tribunal that complaint item X5 was not being pursued (it has not been a complaint item in Complaint Schedule A or Schedule B) and that complaint item 19 had previously been withdrawn.
7 During the course of the hearing, after discussion between the parties, the applicant withdrew complaint item X5, and the respondent withdrew its objection to complaint item 2 on jurisdictional grounds but maintained its denial that it was liable to carry out any remedial work in respect of it. The only items requiring determination by the Tribunal with respect to jurisdiction are complaint items 1 and 4 in Complaint Schedule C.
Relevant background
8 The Islands consist of two apartment buildings (Nos 21 and 23 Ocean Drive, North Coogee), plus associated facilities. The buildings were both built by Pindan Pty Ltd and completed in approximately March 2010. The strata plan was issued in May 2010.
9 The Islands was constructed by the respondent pursuant to a building contract with the developer, Stockland Development Pty Ltd (Stockland).
10 The Islands is situated in the City of Cockburn and was the subject of a building licence number BA 07/1447 issued by the City of Cockburn on 10 December 2007.
11 The apartments were sold by Stockland (including off the plan) to individual purchasers. Those individual purchasers (or subsequent owners) are the members of the strata company.
12 The applicant filed the complaint with the Building Commission on 18 November 2013. Complaint Schedule A formed part of the complaint and listed 31 items it claimed had not been carried out in a proper and proficient manner or were faulty or unsatisfactory.
13 The Building Commission acknowledged receipt of the complaint by letter dated 25 November 2013 and requested further information in order to be able to process the complaint. By letter dated 6 February 2014, the Building Commission informed the parties that the complaint had been accepted under s 7 of the BSCRA Act and that the complaint would then be investigated.
14 The applicant filed and provided to the respondent a report from the Master Painters and Decorators Association dated 4 February 2013 (MPDA Report 1) on a date prior to 17 March 2014.
15 The applicant filed and provided to the respondent a further report from the Master Painters and Decorators Association dated 6 June 2013 (MPDA Report 2) on or about 17 March 2014.
16 Complaint Schedule B, the parties agree, was filed with the Building Commission on or about 22 April 2014.
17 The Building Commission issued a Proposed Building Remedy Order (PBR Order) on 16 October 2014.
18 The Building Commission found that as the matter was of a complex nature and both parties had contested the building remedy order as proposed by the Building Commission, it recommended the matter be referred to the Tribunal.
19 The Building Commission referred the complaint to the Tribunal under s 11(1)(d) of the BSCRA Act. The parties have, through mediation or otherwise, resolved a number of the items that were set out in Complaint Schedule A and Complaint Schedule B. The unresolved items of complaint are set out in Complaint Schedule C.
Issues for determination
20 The issues to be determined by the Tribunal in the preliminary hearing are:
• whether complaint items 1 and 4 as they are described in Complaint Schedule C, only contain items that have been:
• accepted as a complaint by the Building Commission; and
• referred by the Building Commission to the Tribunal for determination and are therefore within the jurisdiction of the Tribunal to determine.
21 All following references to sections or parts of legislation are references to sections or parts of the BSCRA Act unless the context indicates otherwise.
22 Section 5 permits the making of complaints about a regulated building service matter in the following terms:
(1) Subject to the regulations, a person may make a complaint to the Building Commissioner about a regulated building service not being carried out in a proper and proficient manner or being faulty or unsatisfactory.
…
(5) The regulations may make provision as to
(a) who can make a building service complaint; and
(b) any preliminary action required before making a complaint under this section.
(6) A complaint under this section must be
(a) made in a manner and form approved by the Building Commissioner; and
(b) accompanied by the prescribed fee, if any.
…
(a) a building service carried out by a registered building service provider or an approved ownerbuilder[.]
24 Regulation 6 of the Building Services (Complaint Resolution and Administration) Regulations 2011 (WA) (BSCRA Regulations) states:
…
(2) At least 14 days before making a complaint under section 5(1) or (2) of the Act, the complainant must give to the person who will be the respondent written notice that the complainant proposes to make the complaint together with such description as the complainant is reasonably able to give of
(a) the remedy the complainant proposes to seek; and
(b) the evidence on which the complainant proposes to rely.
…
(4) The Building Commissioner may waive or modify the requirement to comply with subregulation (2) or (3) if the Building Commissioner is satisfied that, in the particular circumstances, the complainant has given adequate notice about the proposed complaint.
25 The criteria for determining the date of completion of the building service are prescribed by reg 7 is as follows:
For the purposes of section 6(1) of the Act the following criteria apply when determining the date of completion of a regulated building service
(a) in the case of building work or demolition work carried out under a building permit or a demolition permit
(i) if, under the Building Act 2011 section 34(1), the responsible person in relation to the permit gives notice of cessation to act as the responsible person to a relevant permit authority, the work, in relation to that person, is completed when the notice is given;
(ii) otherwise, the work is completed when a notice of completion of the work is given to a relevant permit authority under the Building Act 2011 section 33(1);
(b) in the case of a regulated building service that
(i) is not carried out under a building permit or demolition permit; and
(ii) is carried out under a home building work contract or other contract that provides for a date of practical completion; and
(iii) has been brought to practical completion,
the building service is completed on the date practical completion is achieved.
(1) After receiving a complaint under section 5 the Building Commissioner must decide whether, and to what extent
(a) to accept it; or
(b) to refuse to accept it.
(2) The Building Commissioner may make such inquiries as are appropriate to enable the making of a decision under this section.
(3) The Building Commissioner may refuse to accept a complaint under subsection (1) if
(a) the complaint is not made in accordance with this Act; or
(b) the Building Commissioner is not satisfied that the complainant has taken preliminary action prescribed under section 5(5)(b); or
(c) the complaint is made out of time as referred to in section 6; or
(d) in the opinion of the Building Commissioner, the complaint is vexatious, misconceived, frivolous or without substance; or
(e) the matter complained about is the subject of another complaint under this Act; or
(f) an arbitrator or other person or a court or other body has made an order, judgment or other finding about the matter complained about; or
(g) the matter complained about has been the subject of a previous complaint to the Building Commissioner that has been refused or in respect of which the Building Commissioner has made a decision under section 11(1)(a).
(4) Except as provided in subsection (5), if an issue raised in a complaint has already been dealt with by the Building Commissioner or a complaint about the issue has already been referred to the State Administrative Tribunal under this Act, the Building Commissioner may refuse to accept the complaint to the extent to which it relates to that issue.
…
27 Section 8 provides a mechanism for the Building Commissioner to obtain further details about the complaint and permits the Building Commissioner to refuse to accept a complaint if the person making the complaint does not comply with a request for further details within a reasonable time.
28 If the Building Commissioner decides to refuse to accept the complaint, that decision is reviewable by the Tribunal, subject to leave being first granted to review the decision (s 57(2)).
29 Once the Building Commissioner makes the preliminary decision to accept a building service complaint (or a HBWC complaint), the Building Commissioner must cause an investigation of the complaint to be carried out by an authorised person.
30 Section 68 provides power to an authorised person, for the purposes of carrying out an investigation under s 9, to direct a person to give such information as the authorised person requires and to answer questions in relation to the matter under investigation. It is an offence to fail to comply with such a direction without reasonable excuse and for which a penalty of up to $10,000 may be imposed (s 71).
31 Section 10 provides that an authorised person must prepare a report on an investigation carried out under s 9, and that the report must be given to the Building Commissioner. The authorised person may include in the report recommendations as to the manner in which the complaint should be dealt with.
32 Section 11 prescribes how the Building Commissioner must act once he is in receipt of the investigation report.
11. Action after report
(1) The Building Commissioner must consider any report given to the Building Commissioner under section 10 and may, subject to the other provisions of this section
(a) dismiss the complaint; or
(b) commence a conciliation proceeding under Division 3; or
(c) deal with the complaint under section 37 or 42, as the case requires; or
(d) refer the complaint to the State Administrative Tribunal for it to deal with under section 38 or 43, as the case requires.
(2) The Building Commissioner may adopt some or all of the recommendations, if any, in the report but is not required to adopt the recommendations.
(3) The Building Commissioner must dismiss a complaint if it is made out of time as referred to in section 6.
(4) A complaint by an owner referred to in the Home Building Contracts Act 1991 section 17 about a breach of section 15 or 15A of that Act
(a) must not be dismissed under this section unless it is made out of time; and
(b) if not dismissed, must be referred to the State Administrative Tribunal for it to deal with under section 43.
(5) The regulations may prescribe circumstances in which the Building Commissioner must deal with the complaint by referring the complaint to the State Administrative Tribunal for it to deal with under section 38 or 43, as the case requires.
33 Section 13 provides as follows:
13. Withdrawal of complaint
(1) A building service complaint or a HBWC complaint may, subject to this section, be withdrawn by the complainant.
(2) The complaint may be withdrawn even though the Building Commissioner has commenced or completed an investigation of the complaint, but cannot be withdrawn if the complaint has been referred to the State Administrative Tribunal.
(3) This section extends to the withdrawal of a complaint so far as it relates to some only or part only of the matters that form the subject of the complaint.
(4) This section does not limit the powers of the State Administrative Tribunal under the State Administrative Tribunal Act 2004 section 46.
34 If the Building Commissioner decides to refer the complaint to the Tribunal pursuant to s 38 or s 43, as the case requires, the Tribunal is then empowered under those provisions as follows:
38. How State Administrative Tribunal may deal with building service complaint
(1) If the Building Commissioner refers a building service complaint to the State Administrative Tribunal, the Tribunal may
(a) if the Tribunal is satisfied that the regulated building service that is the subject of the building service complaint has not been carried out in a proper and proficient manner or is faulty or unsatisfactory, deal with the building service complaint by making a building remedy order; or
(b) otherwise, decline to make a building remedy order.
(2) The State Administrative Tribunal cannot make a building remedy order requiring a respondent who is not a registered building services provider
(a) to do any work of a value estimated by the Tribunal to exceed the prescribed amount; or
(b) to pay any amount exceeding the prescribed amount,
unless
(c) the order is made in respect of a building service that has been carried out by the respondent in contravention of the Building Services (Registration) Act 2011 section 7; or
(d) the respondent consents to the order being made.
(3) Unless a greater amount is prescribed by the regulations, in subsection (2) the prescribed amount is $500 000.
(4) Nothing in this section prevents a building service complaint from being dealt with through a compulsory conference or mediation process under the State Administrative Tribunal Act 2004.
…
43. How State Administrative Tribunal may deal with HBWC complaint
(1) If the Building Commissioner refers a HBWC complaint to the State Administrative Tribunal, the Tribunal may
(a) if satisfied that the order is justified, make a HBWC remedy order; or
(b) otherwise, decline to make the order.
(2) The State Administrative Tribunal cannot make a HBWC remedy order requiring a party
(a) to do work of a value estimated by the Tribunal to exceed the prescribed amount; or
(b) to pay an amount exceeding the prescribed amount,
unless the party consents to the order being made.
(3) Unless a greater amount is prescribed by the regulations, in subsection (2) the prescribed amount is $500 000.
(4) Nothing in this section prevents a HBWC complaint from being dealt with through a compulsory conference or mediation process under the State Administrative Tribunal Act 2004.
35 A building remedy order and what it may include is specifically defined under s 36, but is not relevant for present purposes.
36 Apart from referral to the Tribunal under either s 38 or s 43, there is only one other mechanism by which a matter before the Building Commissioner may be dealt with by the Tribunal. Section 55 provides a mechanism for the Building Commissioner to transfer a matter that the Building Commissioner had decided to deal with under s 37 or s 42, or that is before the Building Commissioner under s 51. The applicant's complaints were not transferred to the Tribunal under s 55.
37 The applicant also relies upon powers granted to the Tribunal under the State Administrative Tribunal Act 2004 (WA) (SAT Act) and the practice and procedure underlying the main objectives of the Tribunal to 'make or review decisions, fairly and according to the substantial merits of the case' (s 9 of the SAT Act).
The parties submissions on the construction of the statutory scheme
38 The respondent contends that complaint items 1 and 4 are complaints that do not comply (either in part or full) with the requirements of the BSCRA Act, and have therefore not been accepted by the Building Commission nor referred to the Tribunal for determination in these proceedings.
39 In order to determine this preliminary issue it is necessary to consider what constitutes a complaint or acceptance of a complaint by the Building Commission under a proper construction of the BSCRA Act.
40 In summary, the respondent contends the complainant is restricted in terms of the articulation of the complaint to the words used in Complaint Schedule A attached to the form it first filed with the Building Commission and no further elaboration or other words can be added or substituted.
41 The applicant contends that the legislative scheme created by the BSCRA Act and the BSCRA Regulations does not support the respondent's contention that the complaint that was referred by the Building Commission to the Tribunal under s 11(1)(d) was, and could only be, the complaint made by the applicant to the Building Commission as constituted by Complaint Schedule A.
42 The applicant says that if the legislative scheme intended that the complaint should be construed in the manner contended by the respondent, it would mean that the complaint was capable of being referred by the Building Commission to the Tribunal any time after it was made. However the BSCRA Act only enables the Building Commission to refer the complaint to the Tribunal under s 11(1)(d) only after the following requirements have been fulfilled:
• the Building Commission has decided to accept the complaint under s 7;
• the Building Commission has caused an investigation of the complaint to be carried out under s 9;
• an authorised person has prepared a report on the investigation carried out, and has given a copy of the report to the Building Commissioner, under s 10;
• the Building Commission has considered the report under s 11; and
• the Building Commission has decided not to exercise the powers conferred under s 11(1)(a), s 11(1)(b) or s 11(1)(c).
43 The applicant submits that on the proper construction of the BSCRA Act the complaint made by the applicant to the Building Commissioner under s 5 of the Act, was its complaint that the 'construction, direction, assembly or placement of the buildings or incidental structures at 21 and 23 Ocean Drive, North Coogee had not been carried out by the respondent in a proper and proficient manner or was faulty or unsatisfactory', and the specific aspects of the complaint included but were not limited to the matters in Complaint Schedule A.
44 The applicant submits that the referred complaint also includes all the materials and information obtained during the course of the investigation carried out under s 9 of the BSCRA Act.
45 The applicant further submits that the form and Complaint Schedule A submitted by the applicant evidenced the making of the originating complaint to the Building Commission under s 5(1) of the BSCRA Act, but did not constitute the 'complaint' that was ultimately referred by the Building Commission to the Tribunal under s 11(1)(d) of the Act.
46 The applicant's interpretation of the BSCRA Act defines a complaint in exceedingly broad terms. The respondent's interpretation is exceedingly narrow.
Respondent's position complaint item 1
47 The respondent contends that by Complaint Schedule C, the applicant has articulated faulty and defective works in categories far broader than Complaint Schedule A. The respondent also contends that the applicant, by an expert report obtained from Extrin dated 9 May 2016 (Extrin Report), attempts to submit evidence of alleged faulty and defective works that did not form part of Complaint Schedule A (including, but not limited to, bollards and horizontal beams to building facades).
48 In Complaint Schedule A, complaint item 1 is described as:
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49 In Complaint Schedule C, complaint item 1 is described as:
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50 The respondent says that the steelwork finish on the gates, fences and basement gates and common areas in buildings 21 and 23 are outside the jurisdiction of the Tribunal as they are not the subject of a complaint to the Building Commission.
51 By letter from the applicant's solicitors to the respondent dated 11 August 2016, the applicant alleges that complaint item 1 in Complaint Schedule A is extended to include gates, fences and basement gates by way of reference to MPDA Report 2, in particular paragraphs 6, 7, 8, 9 and 25 of that report.
52 Whilst the respondent does not accept this proposition it says that if that proposition is accepted by the Tribunal then:
• those items do not appear to have been the subject of a notice of proposed complaint served on the respondent under reg 6(2) of the BSCRA Regulations, prior to lodging Complaint Schedule A with the Building Commission;
• any reference to gates in Complaint Schedule A is limited to the gates to the front of the unit identified in MPDA Report 2 as Beach House 5, and the car park and basement entrance gates;
• any reference to fences in Complaint Schedule A is limited to the unit identified in MPDA Report 2 as unit 23;
• neither bollards nor horizontal beams on the building facades were the subject of a complaint to the Building Commission under s 5 of the BSCRA Act;
• if, as the applicant alleges, the structural steel complaints described in complaint item 1 of Complaint Schedule A should be interpreted to mean the more detailed steel complaints referred to in paragraphs 1, 6 to 11, 15, 19, 21, 23 and 25 of MPDA Report 2, then it follows that the applicant's reference to walkways should be limited to complaints referred to in those paragraphs, and not expanded as the applicant contends to include gates and bollards located along those walkways notwithstanding that they were not the subject of MPDA Report 2;
• save any items deemed to be included in Complaint Schedule A by reference to MPDA Report 2, being the gates, fences and basement gates, and the additional items commented upon in the Extrin Report, being the bollards and horizontal beams have not been accepted as a complaint by the Building Commission under s 7 of the BSCRA Act; and
• by reason of the above, the complaint about the bollards and horizontal beams have not been brought before the Building Commission in accordance with reg 6(2) of the BSCRA Regulations and s 5 of the BSCRA Act and/or property referred to the Tribunal under s 11(1)(d) of the Act.
Consideration of general scheme and complaint item 1
53 The principles of statutory construction, set out by Beech J in Western Australian Planning Commission v Dungey [2010] WASC 52 at [27] [32]are conveniently summarised in The Owners of 38 - 40 Onslow Road, Shenton Park & Anor and C&I Constructions Pty Ltd [2014] WASAT 123 (Owners of 38 40 Onslow Road) at [36] as follows:
1. … The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.
2. In determining a question of construction of statutes, attention is to be given to the consideration of the context, object and inconvenience or improbability of result. Inconvenience or improbability of result may assist in preferring to the literal meaning an alternative construction which is reasonably open and more closely conforms to the legislative intent.
3. By s 18 if the Interpretation Act 1984 (WA), a construction that promotes the purpose or object underlying a written law (whether that purpose is expressly stated in a written law or not) shall be preferred to a construction that would not promote the purpose or object. That section is not directed to a construction which better achieves the object of an Act. Rather the section assists when there is a choice between a construction that would promote the underlying object or purpose of the Act, and one which would not.
4. A provision of a statute must be construed consistently with the language and purpose of all the provisions of the statute.
5. Section 19 of the Interpretation Act identifies extrinsic material which might be considered in order to confirm the meaning of a provision in a written law, or to determine the meaning of a provision where there is ambiguity or obscurity in its ordinary meaning, but secondary materials must not be substituted for the text of the legislation.
54 The issue for determination is, whether having provisionally accepted the complaint, the Building Commissioner is restricted in the manner proposed by the respondent or if having made a complaint about the regulated building service in constructing Nos 21 and 23 Ocean Drive, North Coogee, the applicant can add particulars of the complaint at any time including when in the Tribunal.
55 The 'mischief' the BSCRA Act is seeking to remedy is to provide 'a system for dealing with complaints about building services, home building work contract matters and disciplinary matters'.
56 In the Explanatory Memorandum of the Building Services (Complaint Resolution and Administration) Bill 2010 (WA) there is an explanation as to the purpose behind s 5:
A complaint about a regulated building service hinges upon the quality of performance of the regulated building service. If the quality of the service was not carried out in a proper and proficient manner or is faulty or unsatisfactory, then the making of a complaint is warranted.
…
5(6) allows the Building Commissioner to approve the manner and form in which complaints are lodged, such as evidence of preliminary action required under clause 5(5). This will avoid current problems where failure to comply strictly with procedure and notice requirements in the BR Act can result in a complaint being rejected on technical grounds when it reaches a tribunal hearing. (Tribunal emphasis)
57 The BSCRA Act is at its core consumer legislation. The purpose of the BSCRA Act is to provide consumers with a means to bring their complaints about 'the quality of performance of the regulated building service' in a nontechnical manner. It is about substance, not form.
58 On the interpretation of what constitutes a complaint in the BSCRA Act advanced by the respondent, the complainant would not be permitted to explain a complaint in more detail following enquiries by the Building Commission or negotiations with the regulated building service provider.
59 This interpretation advanced by the respondent would undermine the purpose of the BSCRA Act, that is, to not reject complaints for technical reasons. Following the first rule of statutory interpretation, that is, where one interpretation would result in 'inconvenience or improbability of result', I reject the respondent's submissions and prefer an alternative interpretation which is 'reasonably open and more closely conforms to the legislative intent'.
60 The Tribunal, however, does not consider the interpretation put forward by the respondent to be 'reasonably open and more closely conforms to the legislative intent'.
61 Permitting a party to lodge a complaint regarding a building service without particulars and to be able to add further items of complaint at any time during the complaint process would also result in an 'inconvenience or improbability of result'.
62 In particular, this is inconsistent with the requirement that the Building Commission investigate the 'complaint' and then, if it considers appropriate, to refer it to the Tribunal. On the interpretation of what constitutes a complaint put forward by the applicant, items of complaint could be added to a matter in the Tribunal that had not been investigated by the Building Commission - this is clearly inconsistent with s 11 of the BSCRA Act and the intent of the legislation.
63 A complaint that contains a number of items of complaint is still one complaint and the various items of complaint are the particulars of the complaint.
64 The items of complaint or the particulars of the complaint need to be sufficiently described so as to enable a party to respond to them. However, as the legislation is designed to enable parties to engage in the complaint process without legal representation it would unduly restrict and undermine the process if a party was bound by the wording on the form it first lodges with the Building Commission.
65 Allowing for no details to be provided as to the nature of the complaint of unsatisfactory workmanship would prevent the Building Commission from finalising an investigation and referring 'the complaint' to the Tribunal.
66 As can be seen from the BSCRA Act it is for the Building Commission to determine what constitutes the complaint it refers to the Tribunal. It is open to the Building Commission to determine if it considers notice of a complaint has been given or if it will waive or modify the requirement to comply (reg 6 of the BSCRA Regulations).
67 The Tribunal is vested only with those powers which are found within the enabling act or the SAT Act: Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151; Sparks v Bellotti [1981] WAR 65. The enabling act in this instance confers power on the Tribunal to make a building remedy order or decline to make a building remedy order in relation to the 'building service complaint' if the Building Commission refers the building service to the Tribunal. The Tribunal only has power to determine complaints that are referred to it the Tribunal cannot determine any complaint that is not referred to it.
68 The Tribunal does not have jurisdiction to determine whether the Building Commission acted without power and outside its jurisdiction in accepting a complaint and referring it to the Tribunal. However, in circumstances where the Building Commission is unable to come to a positive finding as to whether a matter is or is not within its jurisdiction, the Building Commission is able to refer the question of jurisdiction to the Tribunal. The scheme of the legislation is such that it is not intended that the Building Commissioner determine complex questions of law or disputed facts which require proper forensic testing and these matters are able to be referred to the Tribunal for determination: see Owners of 38 40 Onslow Road.
69 The particulars of complaint item 1 as described in MPDA Report 1 and MPDA Report 2 (collectively MPDA Reports) are specifically referred to by paragraph numbers as being the evidence relied upon to support the item of complaint.
70 At the hearing there was some uncertainty as to when the respondent received a copy of MPDA Report 2. The Tribunal was later advised by the respondent that it received a copy of MPDA Report 2 on 17 March 2014. It seems likely that this was a response to an email from the respondent dated 4 March 2014 to Ms Cow of the applicant requesting a copy of all the attachments provided to the Building Commission.
71 An investigation was conducted in the Building Commission and a report prepared under s 10 of the BSCRA Act. The Investigation Report states that a desktop review of the 'items of complaint and the evidence provided' was conducted by a Senior Building Inspector and found that remedial action was required for many items of complaint and a PBR Order dated 16 October 2014 was issued based on the inspector's review.
72 The PBR Order notes that the respondent agreed to rectify areas as identified in the MPDA Reports (see complaint item 1 notes). Additionally, throughout the PBR Order reference is made to the MPDA Reports and the work required to remedy items of complaint as described in the MPDA Reports.
73 In response to the PBR Order the respondent informed the Building Commissioner that it objected to the PBR Order on the grounds that it was not within its jurisdiction because the value of the proposed works were more than $100,000. It also specifically stated in respect to complaint item 1 that it considered the PBR Order appeared to go beyond the scope of the original complaint.
74 The Investigation Report and the PBR Order were included with the Building Commission's Notice of Decision dated 23 December 2014, sent to the parties and provided to the Tribunal (Notice of Decision). From that I infer that an investigation of the 'complaint' was made and the Investigation Report and the PBR Order were prepared in respect of the 'complaint' accepted and investigated by the Building Commission.
75 The Notice of Decision provides two reasons for referring the matter to the Tribunal, neither are whether the Building Commission has jurisdiction to consider or accept the 'complaint'. The first is that the matter is complex in nature where the evidence is contested and the second being that the Tribunal is the appropriate forum to consider 'this complaint as the value of remedial works identified appears to be in excess of $100,000'.
76 The Tribunal finds that an item of complaint (not withdrawn) that is specifically referred to in the wording of the complaint in Complaint Schedule A, the MPDA Reports and the PBR Order is an item of complaint that has been accepted by the Building Commission and referred to the Tribunal by the Building Commission.
77 It is a question of fact as to whether the complaint and the particulars of the regulated building service that the complainant says wasnot carried out in a proper and proficient manner or is faulty or unsatisfactory (items of complaint) as expressed in the documentation before the Tribunal is a 'new complaint' and did not form the whole of part of the complaint that was referred to the Tribunal.
Applicant's contentions complaint item 1
78 The applicant says that the Tribunal is not limited to dealing with the complaint as constituted by Complaint Schedule A and if the ambit of complaint item 1 is to be limited in the manner submitted by the respondent, the Tribunal would be preferring form over substance and this would be contrary to the Tribunal's objectives and practice and procedure under the SAT Act.
79 The applicant submits that should the Tribunal find the complaint is in fact restricted, as alleged by the respondent, then the disputed items are nevertheless within the Tribunal's jurisdiction as they were within the scope of Complaint Schedule A.
80 The applicant points out that in Complaint Schedule A there is a column headed 'Attachment No.' and that in this column reference is made to specific sections of the MPDA Reports which discuss corrosion and failure of the 'powder coating' to various areas described as 'structural steel' and 'steel'. The applicant says these references therefore mean that complaint item 1 encompasses all the areas of complaint referred to in the MPDA Reports listed in Complaint Schedule A next to complaint item 1.
81 The applicant says no distinction should be made between the use of the expression 'structural steel' and 'steel'.
Respondent's contentions complaint item 1
82 The respondent maintains that only items as described in Complaint Schedule A form the complaint and therefore complaint item 1 only refers to 'structural steel to verandah awnings and walkways in Building 21 and 23' and not to steel generally or to structural steel in gates, fences or common areas.
83 The respondent submits that if its narrow view of the meaning of complaint is not accepted and complaint item 1 should be interpreted to mean the more detailed steel complaints referred to in paragraphs 1, 6 to 11, 15, 19, 21, 23 and 25 of MPDA Report 2, that it follows that the applicant's reference to walkways should be limited to matters referred to in those paragraphs.
84 It further submits that items referred to in the Extrin Report do not form part of complaint item 1 as the report was not prepared until after the Building Commission had referred the 'complaint' to the Tribunal.
Complaint item 1 in Complaint Schedule C is it a new complaint?
85 It is a question of fact as to what is in the MPDA Reports or Complaint Schedule A. The Tribunal accepts, following a review of all the material available, that the reference by the applicant to 'structural steel' is a reference to steel forming a structure or part of a structure in or part of the building. The MPDA Reports upon which the applicant had based complaint item 1 and the PBR Order make no distinction between the use of the words 'structural steel' and 'steel'.
86 I find that complaint item 1 includes the more detailed steel complaints referred to in paragraphs 1, 6 to 11, 15, 19, 21, 23 and 25 of MPDA Report 2 and that it is limited to the matters referred to in those paragraphs.
87 I can find no reference to bollards in Complaint Schedule A or Complaint Schedule C or the MPDA Reports.
88 However, if bollards are an integral part of a structure such as a fence or a gate so that 'it goes without saying' that it is regarded as part of the structure then it may be included.
89 No evidence was led by either party as to what is meant by 'bollards'. Clarification as to what was meant by 'bollards' was sought by the Tribunal at the hearing and it was a matter to which the respondent indicated they would provide further information. Unfortunately this issue was not subsequently addressed by either party.
90 The only reference in the papers to 'bollards' is in the Extrin Report and then only in a heading. The Extrin Report was prepared after the matter was referred to the Tribunal. Unless it can be shown that the items referred to in the Extrin Report are referred to, possibly by a different wording or description in the MPDA Reports, then the steel or structural steel in or part of the bollards is not included in the complaint referred to the Tribunal. Items therefore that are mentioned in the Extrin Report but nowhere else do not form part of complaint item 1.
91 The Oxford Dictionary defines 'façade' as '[t]he principal front of a building, that faces on to a street or open space' and defines 'elevation' (among other things) as '[a] particular side of a building'. I find the use of the word in the MPDA Reports to describe a part of a building by the term 'elevation' as synonymous with the term 'façade'.
92 Paragraph 11 and 22 of MPDA Report 2 refers to 'corrosion to various areas horizontal and vertical beams' on the western elevation of Block 1 and Block 2 (in paragraph 22 just Block 2). I understand it is not disputed that the reference to Block 1 and/or Block 2 is a reference to Buildings 21 and 23.
93 I find the horizontal and vertical beams on the western façade or elevation of Buildings 21 and 23 are therefore part of and are included in complaint item 1.
94 The respondent in its submissions also submits that if the Tribunal finds that the steel in walkways are included in complaint item 1, the complaint is restricted to the issues with the steel related to the walkways as particularised in the MPDA Reports and does not include gates and bollards located along those walkways.
95 As there is no description of where the walkways are or what they consist of, the Tribunal is unable to determine if the description of the gates in the MPDA Reports may include gates that are located along the walkways.
96 The Tribunal finds that unless the gates and bollards located along the walkways are referred to in the MPDA Reports they are not included in complaint item 1.
Complaint item 4
97 The respondent contends that the applicant has sought to include or to change the nature of complaint item 4 from being a complaint about corrosion of or in the soffits to a complaint that the repairs or the remedial work carried out by the respondent in relation to the soffits not being carried out in a proper and proficient manner or constitute faulty or unsatisfactory building work.
98 If this is or was the intention of the applicant then the respondent would be correct in asserting that it was not a complaint that had been accepted by the Building Commission and referred to the Tribunal.
99 The parties confirmed at the hearing that complaint item 4 has not been withdrawn. The applicant contends that as it has not been withdrawn it remains a live 'complaint'.
100 The Tribunal does not accept that the applicant's statement at paragraph 57(d) of its Statement of Issues, Facts and Contentions that the remedial work carried out by the respondent to the soffits was insufficient and constituted faulty work necessarily changes the nature of the complaint or means the Tribunal no longer has jurisdiction to deal with it.
101 The Tribunal understands that the applicant is alleging that the remedial work was not effective and the item of complaint still needs to be remedied and therefore complaint item 4 is a complaint item that was accepted by the Building Commission and referred to the Tribunal for determination.
102 However, if the applicant is or was to attempt to seek a Building Remedy Order consequent upon the remedial work, that is, it alleged further damage was done by the remedial work, and it is this, together with the original 'complaint' for which it seeks a Building Remedy Order, then that would be a new and different complaint and not one that had been referred to the Tribunal.
Is the description of complaint item 4 in Complaint Schedule A materially different from that in Complaint Schedule C?
103 Complaint item 4 in Complaint Schedule A is:
Southern elevation to Block 21 underneath the concrete balcony (beach houses) Balcony ceiling apartments 9/23, 13/23. NEW comment not submitted to Pindan in original application: concrete soffit issue widespread throughout the 2 apartment buildings and has worsened since MPDA inspection date. |
104 Complaint Item 4 in Complaint Schedule C is:
|
106 It was a 'New' comment in the sense that the original Notice of Proposed Complaint given to the respondent was confined to the concrete soffits on the Southern elevation to block 21 and underneath the concrete balcony (beach houses) and the balcony ceiling apartments of 9/23 and 13/23. The applicant was bringing to the attention of the respondent that the complaint it was now filing with the Building Commission in respect of the soffits was widespread and not confined as it had previously stated.
107 The complaint as set out in Complaint Schedule A, including that the problem with the soffits was widespread, was accepted by the Building Commission under s 7 of the BSCRA Act (see letter dated 6 February 2014 from the Building Commission to the parties).
108 Where the Notice of Proposed Complaint and the 'complaint' filed in the Building Commission differ, I infer that the Building Commission waived or modified the requirement to give notice under the BSCRA Regulations pursuant to reg 6(4).
109 Complaint Schedule A and Complaint Schedule C refer to all concrete soffits in Buildings 21 and 23. The PBR Order sets out that the action required is:
The respondent is to provide soffits to concrete balconies that are free from corrosion consistent with being associated with the lack of appropriate cover to embedded steel components.
110 The Tribunal accepts that the 'Action Required' is not clear as to what is required of the respondent but what is clear is that the order was intended to cover 'all soffits to concrete balconies' and therefore I conclude that the Building Commission accepted complaint item 4 referred to all concrete soffits.
111 I note that at the hearing the respondent accepted that if the complaint was found to be within the jurisdiction of the Building Commission and the Tribunal, a complaint about rust spots or corrosion would mean a complaint that the cause of the rust or corrosion was also being complained about and not just the aesthetic effect of it.
Conclusion
112 The Tribunal does not accept either the extremely narrow interpretation of what constitutes a 'complaint' submitted by the respondent or the extremely wide interpretation submitted by the applicant as being correct.
113 The intent of the legislature was to provide a 'system for dealing with complaints about building services' that did not 'result in a complaint being rejected on technical grounds when it reaches a tribunal hearing'.
114 The Tribunal accepts that the jurisdiction of the Building Commission is enlivened when it receives the complaint. However, the Building Commission is able to seek clarification about a complaint after 'receiving it'. As with courts it sets its procedures itself and it 'allows' for complaints to be 'amended or clarified' without formal applications. What is at the essence of the legislation is that the Building Commission is to receive complaints and attempt to resolve them without formality. This necessarily may involve some 'toing and froing' with both parties in an endeavor to establish what it is that the consumer is complaining about and what the regulated building service provider's response to the issue is.
115 For the above reasons, the Tribunal finds that the description of the complaints in Complaint Schedule A were added to or clarified by the MPDA Reports referred to in it, and together with the matters set out in the PBR Order formed and were part of 'the complaint' accepted by the Building Commission and referred to the Tribunal.
116 The Tribunal finds that an item that is not mentioned in either the wording of the complaint in Complaint Schedule A, the MPDA Reports or the PBR Order is not an item of complaint that has been referred to the Tribunal by the Building Commission.
117 It is a question of fact as to what is in the MPDA Reports or Complaint Schedule A.
118 Specifically the Tribunal finds that complaint item 1 includes the more detailed steel complaints referred to in the 'MPDA Reports number 1, 2a (reference points 6 to 11, 15, 19, 21, 23, 25 & 2b (photos 1 and 2)' and that it is limited to the matters referred to in those paragraphs and the photos.
119 The Tribunal also finds that unless the gates and bollards located along the walkways are referred to in the MPDA Reports or are part of or integral to the walkway they are not included in complaint item 1.
120 In respect of complaint item 4 the Tribunal finds that complaint item 4 as set out in Complaint Schedule C (and the MPDA Reports) is not materially different from complaint item 4 in Complaint Schedule A and is a particular of the 'complaint' that was accepted by the Building Commission and referred to the Tribunal.
Orders
1. Complaint item 1 as set out in the applicant's Schedule of Complaints Requiring Determination filed on 5 April 2016, namely:
'Steelwork finish on verandah, awnings, walkways, gates, fences and basement gates in Buildings 21 and 23 and common areas'
- is a complaint that was accepted by the Building Commission and properly referred to the Tribunal for determination.
2. Complaint item 4 as set out in the applicant's Schedule of Complaints Requiring Determination filed on 5 April 2016, namely:
'Concrete balcony soffits to apartment balconies in Buildings 21 and 23'
- is a complaint that was accepted by the Building Commission and properly referred to the Tribunal for determination.
3. The proceeding is adjourned to a further directions hearing at 10 am on 21 February 2017 at 565 Hay Street, Perth, Western Australia in order to program the matter to a final hearing.
I certify that this and the preceding [120] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS P LE MIERE, MEMBER
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