PATEL and PRAJAPATI
[2024] WASAT 101
•16 SEPTEMBER 2024
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 investigator for the Building Commissioner recorded Mr Prajapati as the respondent (the respondent or Mr Prajapati) rather than the company as stated by the applicant in his building complaint form to the Building Commissioner.[4] There is no explanation why the change was made. Shortly, I will return shortly to consider who are the parties to the contract for the supply and installation of cabinetry at the property.
[4] HB at pages 14 to 15.
The authorised investigator noted in his investigation report of 5 March 2024 that the complaint was referred to the Building Inspectorate for a 'desktop review'. The result of the desktop review, according to the authorised investigator was:[5]
… As the works were incomplete and without a detailed contract/plans the BEI was unable to make a determination. The complainant [Mr Patel] was asked to provide further evidence of correspondence between parties and the plans for the works provided on 17 January 2024 for the BEI to further consider.
Due to lack of meaningful communication from the respondent [Mr Prajapati] to date, and the complainant [Mr Patel] seeking compensation a proposed order was unable to be finalised and issued.
[5] Ibid.
On 5 March 2024, the authorised investigator recommended that the complaint be referred to the Tribunal. On the same date, the Building Commissioner, pursuant to s 11(1)(d) of the BSCRA Act, referred Mr Patel's 'building service and HBWC' complaint[6] to the Tribunal for determination.[7]
[6] HB at page 2.
[7] HB at pages 1 to 3.
The following is the list of the complaint items referred by the Building Commissioner to the Tribunal:[8]
[8] HB at pages 12 to 13.
Item number
Location (eg garage) and/or contract issue
Description of complaint item
1
Main kitchen overhead/side cabinets
Main Kitchen overhead/side cabinets not finished not install doors and hardware
2
Main kitchen Left side integrated fridge cabinet
Main Kitchen Left side integrated fridge cabinet not finished side panel not install as well as hardware missing
3
Main kitchen island and dinning side cabinets
Main kitchen island not finish at bottom near waterfall and dinning side cabinets doors not installed
4
Scullery all below cabinets
Scullery all under bench cabinets not completed. No drawers functioning and spice cabinet missing hardware
5
Scullery all overhead cabinets
Scullery all overhead cabinets not having hardware as well as doors are missing especially corner cabinet
6
Scullery fridge cabinets
Scullery fridge cabinet not installed including overhead cabinets not installed including overhead cabinets not installed above fridge
7
Laundry left side cabinets and drawers
Laundry left side cabinets and drawers are not installed
8
Laundry right side cabinets and drawers
Laundry right side washing/dryer machine cabinet not built and overhead cabinet not installed with missing all hardware
9
Laundry overhead cabinets doors
Laundry overhead cabinets doors not installed not installed hardware
10
Significant delay in project
cost more than 6 months (sic) rent Due to significant delay in project. It cost me more than 6 months (sic) rent plus lots of connected trades needs to reorganise and spend more money
In short, Mr Patel's position is that he should be compensated a total of $36,412[9] by Mr Prajapati in order that he can have the supply and installation of cabinets to the kitchen, scullery and laundry and the bathroom vanities (the cabinetry project) remedied and completed by someone other than Mr Prajapati and for rental ($19,500) for six months.
[9] HB at page 114.
In short, Mr Prajapati's position is that the company contracted with Mr Patel for the cabinetry project but it is in liquidation (since 23 May 2023).
While Mr Patel is understandably disappointed that the cabinetry project is still not completed to his satisfaction, for the reasons given below, Mr Patel's application is unsuccessful and is dismissed.
Before considering the issues, I turn to set out the relevant procedural history and evidence before the Tribunal, followed by the issues to be determined in this matter, then the legal framework and the relevant facts.
Relevant procedural history and evidence
On 2 April 2024, the Tribunal referred the matter to mediation. The dispute was not resolved at mediation and the matter was programmed through to a final hearing on 28 August 2024.
The applicant attended the final hearing in person.
The respondent attended the final hearing by videoconference.
No witnesses were called to give evidence.[10]
[10] HB at page 179 (refer to order 3 of the orders made by the Tribunal on 18 June 2024).
In accordance with the Tribunal's usual practice in matters of this nature, the final hearing was conducted on the basis that all of the documents filed with the Tribunal would be regarded as being in evidence (noting that submissions are not evidence). At the hearing, the Tribunal marked the following documents, to which I have had regard for the purpose of my determination in these proceedings:
•Exhibit 1 - Hearing Book prepared by the Tribunal on 21 August 2024 (pages 1 to 179) (HB); and
•Exhibit 2 - Documents filed by Mr Prajapati on 27 August 2024 (pages 1 to 4).
While Mr Patel objected to the documents filed by Mr Prajapati at short notice on the day before the final hearing, I note nothing in the decision turns on these documents which comprised a request to adjourn the final hearing, a medical certificate and an undated letter from Mr Dean Barrett of Barrett Cabinets & Carpentry.
Issues
The issues that require determination in this matter are:
(a)Who entered into the contract with Mr Patel? Was it Mr Prajapati or the company, M.R. Group Company Pty Ltd ATF the Prajapati Family Trust trading as M.R. Selections (in liquidation) (the contract issue)?
(b)Who 'carried out' the cabinetry project for the purposes of the BSCRA Act? Was it Mr Patel, Mr Prajapati or the company (the 'carried out' issue)?
(c)Whether the cabinetry project is a 'regulated building service' under the BSCRA Act (the regulated building service issue)?
(d)Whether the works were not carried out in a proper or proficient manner or are faulty or unsatisfactory? If the works are faulty or satisfactory who is to carry out the remedial works (the workmanship issue)?
(e)Has Mr Patel suffered loss (rent payable to daughter)? If 'yes', is Mr Patel to be compensated for that loss (the compensation issue)?
(f)Whether the Tribunal should make a building remedy order, and if 'yes', what is the appropriate order (the BRO issue)?
Legal framework
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 process
While 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.
Facts
The following facts are agreed or uncontroversial. I make the following findings of fact:
(a)Mr Patel is the owner of the property which is located in the City of Canning.
(b)Mr Patel entered into a contract with BD Living for the construction of a residential dwelling at the property excluding the cabinetry project.
(c)BD Living's construction of the residential dwelling at the property was complete apart from the installation of flooring and the painting of some walls.
(d)On 20 April 2023, B.A.T. Trims Pty Ltd ACN 006 581 451 filed an application with the Supreme Court of Victoria to wind up the company.
(e)On 25 May 2023, the Supreme Court of Victoria (S ECI 2023 01597) ordered that the company be wound up in insolvency under the provisions of the Corporations Act. The court appointed Mr David Charles Quin as liquidator to wind up the company. Mr Prajapati is the sole director of the company.
(f)The City of Canning did not issue a building permit for the cabinetry project that is the subject of Mr Patel's complaint to the Building Commissioner.[11]
[11] HB at page 6.
What was hotly contested at the final hearing is with whom did Mr Patel contract for the cabinetry project? Mr Patel asserts that it was Mr Prajapati as all his dealings were with him. Mr Prajapati contends that as the sole director of the company he discussed Mr Patel's requirements for his cabinetry project with him as he did with other customers. In other words, Mr Prajapati contends that the company contracted with Mr Patel for the cabinetry project.
I turn now to consider this issue and make a finding as to who are the parties to the contract for the cabinetry project. Following that, I will work through the other issues as required (see above at [19]).
Consideration
Contract issue
It is first necessary to determine who is the person who entered into the contract with Mr Patel for the cabinetry project.
If Mr Patel entered into the contract with Mr Prajapati for the cabinetry project, then it will be necessary to determine who 'carried out' the cabinetry project for the purposes of the BSCRA Act, applying the test in Shami. If Mr Prajapati 'carried out' the cabinetry project for the purposes of the BSCRA Act, then it is necessary to go on to determine the other issues, that is, the regulated building service issue, the workmanship issue and the compensation issue to determine whether the Tribunal should make a building remedy order, and if so, what the appropriate order is.
On the other hand, if Mr Patel entered into the contract with Mr Prajapati for the cabinetry project, but a finding is made that Mr Prajapati was not the person who 'carried out' the cabinetry project for the purpose of the BSCRA Act, applying the test in Shami, then the application must be dismissed as the Tribunal does not have jurisdiction to determine the matter.
If, however, Mr Patel entered into the contract with the company for the cabinetry project, then the proceeding before the Tribunal is stayed because the company is in liquidation by order of the Supreme Court of Victoria made on 23 May 2023. The proceeding will be stayed until Mr Patel files with the Tribunal an order of the court granting leave under s 471B of the Corporations Act for the matter to continue in the Tribunal. Assuming Mr Patel seeks, and is given leave by the court under s 471B of the Corporations Act, if a finding is made that the company is not the person who 'carried out' the cabinetry project for the purposes of the BSCRA Act, then applying the test in Shami, the application must be dismissed as the Tribunal does not have jurisdiction to determine the matter. In such a case, it may be open to Mr Patel to commence proceedings for an action against the company for breach of contract. Such action is to be commenced in a court of competent jurisdiction (but not the Tribunal) if leave of the court is given under s 471B of the Corporations Act.
What is the contract?
It is Mr Patel's evidence that he entered into a contract with a registered builder, BD Living, in about 2020/2021 for the construction of his residential dwelling at the property with the express exclusion of the cabinetry project.
Mr Patel's position is that he has a contract with Mr Prajapati for the cabinetry project. Mr Patel explained how the contract came about as follows.
Mr Patel says that he visited the company's showroom in Osborne Park with the signage 'Mr Selections Tiles Trade Junction' (the showroom) in June 2022, August 2022 and again in November 2022 where he spoke with Mr Prajapati on each occasion about his cabinetry project - including the design and colour scheme and the installation of cabinetry in the kitchen, scullery and laundry at the property. Following this, Mr Patel said he and Mr Prajapati negotiated and agreed a price for his cabinetry project. This was on or about 22 November 2022 while at the showroom. Mr Patel said he was told by Mr Prajapati that the cabinetry project would be completed within two to three months, that is by February 2023.
Mr Patel accepts that he received the document (undated) which the parties refer to as an 'invoice' or 'contract' for $33,000[12] on or about 24 November 2022. Mr Patel was clear that he accepted the document as the contract between himself and Mr Prajapati and made his first payment of $5,000 on 27 November 2022. The payment was made to the company. I will return to the other payments made by Mr Patel later in these reasons.
[12] HB at page 17.
In giving his evidence, Mr Prajapati agrees that he met with Mr Patel at the showroom on 22 November 2022. However, Mr Prajapati is clear that he personally did not enter into a contract with Mr Patel but rather, in his capacity as the sole director of the company, he discussed the cabinetry project with Mr Patel and agreed for the company to enter into the contract with Mr Patel. Mr Prajapati said he was trying to expand the cabinetry side of the company's business and was keen to have Mr Patel, a member of the Indian community to which they both belong, as the company's second cabinetry customer.
Due to changes in the selection of products by Mr Patel (which cost $5,000) and the addition of vanity units (which cost $7,000), the total contract price increased from $33,000 to $45,000. The parties agree this. It is also common ground that Mr Patel paid a total of $40,000 as follows:
(a)$5,000 to MR Group Company Pty Ltd on 27 November 2022;
(b)$15,000 to MR Group Company Pty Ltd on 2 December 2022;
(c)$5,000 to MR Group Company Pty Ltd on 7 June 2023;
(d)$5,000 to Mr Prajapati on 7 June 2023 at the direction of Mr Prajapati; and
(e)$10,000 to DIY Flat Packs on 28 July 2023 at the direction of Mr Prajapati.
Mr Prajapati gave evidence that the payment by Mr Patel to him on 7 June 2023 and to DIY Flat Packs to release materials on 28 July 2023 was because 'he was stuck in the middle' as his company had gone into liquidation in May 2023 and he was trying to help Mr Patel get his cabinetry project completed.
Mr Patel said he was never told the company had gone into liquidation and only learnt of this at a direction hearing before the Tribunal on 18 June 2024.
The document (undated) provides in part:[13]
Supply and install cabnetry [sic] to kitchen, scullery and laundry as per attached plans All cabinetry to be white melamine with standard 16mm fronts No handles throughout All hardware to be blum [sic] soft closing.
Supply and install as per plan $33,000.00
Please note to following -
Any chances [sic] once drawings have been signed off will result in additional costs This price does not include any appliances and installion [sic] of them Attached price does not inculde [sic] stone works and stone templates All plumbing and electiral [sic] works to be taken our [sic] by builder and/or owner
[13] HB at page 17.
Further the document (undated):[14]
(a)is headed with the logo in bold 'Mr Selections Tiles Trade Junction';
(b)gives the address of 8/3 King Edward Rd, Osborne Park and internet address of the ABN 40763180040; and
(d)gives the bank account name as 'MR Group Company Pty Ltd'.
[14] HB at page 17.
The drawings[15] which Mr Patel acknowledges that he did receive, again have the logo in bold 'Mr Selections Tiles Trade Junction'. The drawings also reflect the same internet address and street address as per the document (undated). There is also an email address of mrgroup92@[...]. Mr Patel is recorded as the customer on the drawings and the property is listed as the job name.
[15] HB at pages 22 to 38.
There are also two orders (3738 and 3739) dated 22 November 2022 totalling $33,000 filed by Mr Prajapati with the Tribunal setting out the following work:
Order 3738
Supply & install base & over head cabinet as per our design
Attached price is included related hardware as per our design
Attached price is not included kitchen benchtop, electrical, plumbing & kitchen appliances
Note - materials must be provided by the Laminex subject to stock availability
Order 3739
Scullery - supply and install base & over head cabinet as per our design
Attached price is included related hardware as per our design
Attached price is not included kitchen benchtop, electrical plumbing & kitchen appliances
Note - materials must be provided by the Laminex subject to stock availability
The orders have the same logo in bold 'Mr Selections Tiles Trade Junction'. Further, the orders give the name MR Group Company Pty Ltd and the same bank account details as on the document (undated). The Osborne Park address is also provided. The salesperson listed on the orders is 'Bhavesh' which is part of Mr Prajapati's first name 'Bhaveshkumar'.
Mr Patel said he had never seen orders 3738 and 3739 which Mr Prajapati filed with the Tribunal. This is not surprising as the orders are a document produced and used internally by a business to fill a customer's order, in this case the supply and installation of cabinetry at the property for Mr Patel.
As set out earlier, Mr Patel made five payments totalling $40,000. Of those payments, three were paid by Mr Patel to MR Group Company Pty Ltd. One payment was paid to a third party, DIY Flat Packs, and the other was paid to Mr Prajapati after the company had gone into liquidation. I accept Mr Patel's evidence that Mr Prajapati told him to pay DIY Flat Packs directly in order to get the 'job done faster'. Further, I accept Mr Patel's evidence that Mr Prajapati instructed him to pay $5,000 directly to him on 7 June 2023.
In conclusion, I find, and it is common ground, that there is a contract as evidenced by the document (undated) and drawings for the cabinetry project. The contract was for $45,000.
Who are the parties to the contract?
Even though there are two payments which were not paid to MR Group Company Pty Ltd, in my view, there is nothing in the document (undated) and the drawings (17 pages) or in the orders 3738 and 3739 which suggest that Mr Prajapati is the person who entered into the contract with Mr Patel.
Rather, in my view, it is clear the company entered into the contract with Mr Patel. The reasons for this are as follows.
First, the document (undated) and the order numbers 3738 and 3739 clearly have the logo in bold 'Mr Selections Tiles Trade Junction' as well as the bank details of Mr Group Company Pty Ltd. The order numbers also show Mr Prajapati listed as the salesperson. Further, the drawings also have the logo in bold 'Mr Selections Tile Trade Junction' and the showroom address in Osborne Park. Nothing in any of these documents indicate that Mr Prajapati is contracting with Mr Patel.
Second, while Mr Patel refers to text messages between himself and Mr Prajapati, those text messages, in my view, reflects Mr Prajapati acting on behalf of the company and not in his own right as the messages concern the supply and installation of the cabinetry and vanities for the cabinetry project.
Third, the payment made to DIY Flat Packs and to Mr Prajapati were made after the company had gone into liquidation by order of the Court.
The consequence of this is that, in my view, the contract is between Mr Patel and the company.
The company is not the respondent in the proceeding before the Tribunal. However, as noted earlier, Mr Patel did record the company as the respondent in his building complaint form to the Building Commissioner. The Tribunal may correct the error by joining the company as the respondent to the proceeding pursuant to s 38(1) of the State administrative Tribunal Act 2004 (WA).
However, the difficulty is that the company is in liquation by an order of the Supreme Court of Victoria. Consequently, and subject to who 'carried out' the cabinetry project for the purposes of the BSCRA Act (see paragraphs below) before the matter can proceed in the Tribunal Mr Patel will need to seek and be given leave by the court under s 471B of the Corporations Act 2001 (Cth) for the proceeding to continue in the Tribunal.
I now turn to consider who 'carried out' the cabinetry project for the purposes of the BSCRA Act, applying the test in Shami.
If I find that the company 'carried out' the cabinetry project then the proceeding before the Tribunal must be stayed until Mr Patel seeks and is given leave of the court as discussed earlier (see above at [53]). On the other hand, If I find that neither of the company nor Mr Prajapati 'carried out' the cabinetry project, then the Tribunal does not have jurisdiction and Mr Patel's application must be dismissed.
'Carried out' issue
The test in Shami, to be answered in this case is, who is the person who had the role of ensuring the cabinetry project was completed?
It is clear, in my view, that it is not necessarily the person (which may be a company) who carried out the day-to-day work who is the person who 'carried out' the regulated building service for the purposes of the BSCRA Act. Rather, it is the person who is ultimately responsible for the entire project (in this case the cabinetry project) that is the person who 'carried out' the regulated building service.
Mr Patel's position appears to be that he has a contract for the carrying out of the cabinetry project, and therefore a 'regulated business service' for the purposes of the BSCRA Act.
In isolation the supply and installation of cabinetry could be characterised as 'building work' within paragraph (b) of the definition of regulated building service in s 3 of the BSCRA Act (that is, home building work apart from the construction of the residential dwelling) carried out by the company for Mr Patel under an arrangement for gain or reward. However, following Shami that position is not supported. This is because in Shami the Tribunal stated the following in respect of the operation of paragraph (b) of 'regulated building service' at [59] to [60]:
59At first glance it is not clear why paragraph (b) has been included in the definition of 'regulated building service' in the BSCRA Act. It is based on the definition of 'home building work' in the Home Building Contracts Act. However it is broader in scope than the building work covered by the Home Building Contracts Act. It does not contain all of the limitations contained in the definition of 'home building work contract' in that Act, in particular the monetary limits and the requirement that the person who carries out the work must do so as part of a business.
60If 'carried out' is construed to mean the completion of an entire project then paragraph (b) of the definition of 'regulated building service' will be confined to building work carried out solely by one person for an owner in circumstances where no other building work is being done in conjunction with that work. That construction is consistent with the purpose of the BSCRA Act to make the person who is responsible for the overall building project the person against whom a building remedy order may be made, with the consequence that such person (whether they are a registered building service provider, an approved owner-builder in the case of building work which requires a building permit, an owner who arranges their own building or renovation project or a contractor who solely carries out the work in such a project in the case of work which does not require a building permit) must pursue any claim against a sub-contractor for faulty work performed by that sub-contractor through the courts rather than under the BSCRA Act.
It would be contrary to the purpose of the BSCRA Act if Mr Patel, as the owner of the property, was able to avoid the responsibility for a regulated building service by pushing the responsibility onto the contractor, in this case the company, engaged by Mr Patel who supplies and installed cabinets to fulfil the owner's (Mr Patel's cabinetry project).
In my view the supply and installation of the cabinetry is the 'building project' per Shami. This is because:
(a)the builder, BD Living, agreed for Mr Patel to subcontract the cabinetry work to a third party;
(b)Mr Patel stated the contract for the construction of his residential dwelling excluded the cabinetry project;
(c)Mr Patel negotiated with Mr Prajapati, acting on behalf of the company, regarding the supply and installation of the cabinetry to the exclusion of the builder, BD Living;
(d)the drawings for the cabinetry were prepared by the company; and
(e)the supply and installation of the cabinetry was undertaken following the construction of the residential dwelling.
Accordingly, in my view the regulated building service for the purposes of the BSCRA Act was the supply and installation of the cabinetry.
Returning to the test in Shami, in my view neither Mr Prajapati nor the company is or are the person or persons who 'carried out' the cabinetry project. Rather, in my view, Mr Patel is the person responsible for ensuring that the supply and installation of the cabinetry was carried out or brought to a completion. My reasons for this conclusion are as follows.
First, it is not in dispute that Mr Patel entered into a contract for the construction of his residential dwelling with BD Living which expressly excluded the cabinetry project.
Second, Mr Patel engaged the company to supply and install the cabinetry at the property. The builder, BD Living had no involvement.
Third, Mr Patel arranged for the cabinetry project to be undertaken after the construction of the residential dwelling at the property was completed.
Fourth, the company was only contracted to supply and install the cabinetry at the property and had no responsibility for anything else in the construction of the residential dwelling.
Fifth, the company did not have a building permit for the cabinetry project.
Finally, in my view, Mr Patel undertook the cabinetry project, whatever the scope of that project may be, and in doing so put himself in the same position as that of the builder or contractor would be if they were engaged to carry out the project (Shami at [49]).
In conclusion, in my view, neither the company nor Mr Prajapati is, or are the person or persons who 'carried out' the cabinetry project for the purposes of the BSCRA Act.
It follows that, even if Mr Patel were to seek, and be granted leave by the court to continue with the proceeding against the company in the Tribunal, that the Tribunal does not have jurisdiction to determine the complaint, due to my finding that the company was not the person who 'carried out' the cabinetry project for the purposes of the BSCRA Act.
The end result is that Mr Patel's application before the Tribunal must be dismissed. It is therefore not necessary for me to determine the remaining issues (see above at [19]).
Conclusion
For all of the reasons given above, I make the following orders.
Orders
The Tribunal orders:
1.The application is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R PETRUCCI, MEMBER
16 SEPTEMBER 2024
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