PATEL and PRAJAPATI - [2024] WASAT 101

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   PATEL and PRAJAPATI [2024] WASAT 101
MEMBER:   MS R PETRUCCI, MEMBER
HEARD:   28 AUGUST 2024
DELIVERED          :   16 SEPTEMBER 2024
FILE NO/S:   CC 145 of 2024
BETWEEN:   DEEPAKBHAI DHANJIBHAI PATEL
Applicant
AND
BHAVESHKUMAR MOHANBHAI RAMABHAI PRAJAPATI
Respondent

Catchwords:

Dispute - Building service complaint - Home building works contract complaint - Whether parties contracted for supply and installation of cabinetry - Whether person who supplied and installed cabinetry as part of completion of residential dwelling by owner was the person who 'carried out' that cabinetry work - Complaint made by applicant to Building Commissioner regarding cabinetry - Company in liquidation - Jurisdiction of Tribunal

Legislation:

Building Services (Complaints Resolution and Administration) Act 2011 (WA), s 3, s 5(1), s 5(2), s 9, s 11(1)(d),
Corporations Act 2001 (Cth), s 471B
State Administrative Tribunal Act 2004 (WA), s 38(1)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	In Person

Solicitors:

Applicant	:	N/A
Respondent	:	N/A

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

Shami and Teo [2017] WASAT 73

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 27 November 2023, the applicant, Mr Deepakbhai Dhanjibhai Patel (Mr Patel) made a 'building service' and a 'home building works contract' complaint (the complaint) under s 5(1) and s 5(2) of the Building Services (Complaint Resolution and Administration) Act 2011 (BSCRA Act) to the Building Commissioner concerning his residential dwelling in the Perth suburb of Riverton in the City of Canning (the property).
Mr Patel in his complaint to the Building Commissioner, described his complaint as follows:[1]
I am suffering from 12 months delay on my kitchen project and paying rent since more than 8 months and cant [sic] afford anymore. This guy is really dont [sic] have customer service and talks to me rud [sic] everytime I try to contact him. Mostly not answering phone calls not responding SMS[.]
[1] See para 17. HB at page 8.
The remedy that Mr Patel seeks as set out in his complaint to the Building Commissioner is:[2]
Department needs [to] take action against to [sic] this company as I am suffering from 12 months delay on my kitchen project and suffered lot financially. I want full refund and [sic] plus loss of money what i [sic] have suffered is not included to rent/other tradies sufferance delay costs etc.
[2] HB at page 8.
In his building complaint form,[3] Mr Patel stated the respondent as 'The Trustee for Prajapati Family Trust ABN 40763180040 trading as Mr Selections' (the company). Further, Mr Patel stated that the contact person for the company is Mr Bhaveshkumar Mohanbhai Ramabhai Prajapati, who is the respondent in the proceeding before the Tribunal, as explained in the next paragraph.
[3] HB at page 5.
On 4 December 2023, the Building Commissioner accepted the complaint. In carrying out his investigation under s 9 of the BSCRA Act, the authorised…

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.

Keep reading for free

Create a free CaseChat account to read PATEL and PRAJAPATI and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] WASAT 101
Decision Date: 16 SEPTEMBER 2024

CaseChat Overview and Summary

In the matter of Patel v. Prajapati, the applicant lodged a complaint with the Building Commissioner regarding the supply and installation of cabinetry in the construction of a residential dwelling. The central issue was whether the parties had contracted for the supply and installation of cabinetry, and whether the person who supplied and installed the cabinetry was the same person who 'carried out' that work. The Tribunal needed to determine whether the applicant's complaint against the respondent was valid under the Building Services Regulation Act 2011 (WA) (BSCRA Act).

The Tribunal referred to Shami and Teo [2017] WASAT 73 to clarify the meaning of 'carried out' in the context of the BSCRA Act. It was held that the term 'carried out' referred to the completion of the entire building project, not just the individual components. The Tribunal determined that a building remedy order could only be made against the person who was responsible for ensuring the completion of the entire building project, including the work that was the subject of the building service complaint. The Tribunal also noted that a building remedy order could not be made against someone who was not involved in the building project.

Given that the respondent's company was in liquidation, the Tribunal considered whether it had jurisdiction to hear the matter. The Tribunal held that when there is a Court order winding up a company, proceedings before the Tribunal are stayed unless the Court grants leave under s 471B of the Corporations Act 2001 (Cth) (Corporations Act). The Tribunal determined that it did not have jurisdiction to hear the matter as the Court had not given leave for the proceedings to continue.

The Tribunal dismissed the complaint made by the applicant against the respondent.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

When there is a Court order winding up a company, then the proceeding before the Tribunal is stayed unless the Court gives leave under s 471B of the Corporations Act 2001 (Cth) (Corporations Act) to the person seeking to continue with a proceeding in the Tribunal. Section 471B of the Corporations Act provides:471BStay of proceedings and suspension of enforcement processWhile a company is being wound up in insolvency or by the Court, or a provisional liquidator of a company is acting, a person cannot begin or proceed with:(a)a proceeding in a court against the company or in relation to property of the company; or(b)enforcement process in relation to such property;except with the leave of the Court and in accordance with such terms (if any) as the Court imposes. The relevant provisions of the BSCRA Act are set out in Shami and Teo [2017] WASAT 73 (Shami) at [24] to [30]. It is not necessary to repeat them here. Shami is still the leading authority (see [39] to [49]) when considering the issue, who 'carried out' a regulated building service for the purposes of the BSCRA Act. Paragraphs [47] to [49] are particularly useful and are set out below:47Accordingly, the Tribunal has decided that the proper construction of the phrase 'carried out' in s 36(1), s 37(1) and s 38(1) of the BSCRA Act is that it means the completion of the entirety of the building work of which the work the subject of a building service complaint forms part. That entirety of work could be described as 'the building project'. In the case of the construction of an entire building the building project will be the construction of the 'edifice' referred to in Shaw. In other cases the building project could be the completion of a building after it has reached a certain stage, or the alteration, improvement or repair of a building.48For the purposes of s 36(1), s 37(1) and s 38(1) of the BSCRA Act, it is the entirety of the work of the building project which is carried out, not the components of it. What follows from that construction is that a building remedy order can only be made against the person who had the role of ensuring that the entire building project which includes the work which is the subject of a building service complaint was 'carried out', or in other words 'brought to completion'. It does not matter whether the work was done personally by that person or by other persons whom they arranged to perform the various components of the overall work. However, it needs to be noted that for a building remedy order to be made against that person the building project must be a 'regulated building service' as defined in s 3 of the BSCRA Act.49Where an owner of a building undertakes a building project, whatever the scope of that project may be, they put themself in the same position as a builder (or to be more precise, a registered building service provider if a building permit is required for the project under the Building Act) or a contractor (if a building permit is not required and the owner chooses a contractor who is not a registered building service provider) would be if they were engaged to carry out the entire project.