Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd - [2007] WASAT 239

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: BUILDERS' REGISTRATION ACT 1939 (WA)

CITATION: PERTH CENTRAL HOLDINGS PTY LTD and DORIC CONSTRUCTIONS PTY LTD [2007] WASAT 239

MEMBER: MR C RAYMOND (SENIOR MEMBER)
MR P McNAB (MEMBER)
MR R AFFLECK (SENIOR SESSIONAL MEMBER)

HEARD: 18 MAY 2007

DELIVERED : 13 SEPTEMBER 2007

FILE NO/S: CC 1337 of 2006

BETWEEN: PERTH CENTRAL HOLDINGS PTY LTD
Applicant
AND
DORIC CONSTRUCTIONS PTY LTD
Respondent

Catchwords:

Builders' Registration Act 1939 (WA) - Application for leave and review heard together - Whether decision of Building Disputes Tribunal miscarried - Whether Disputes Tribunal misconceived evidence, failed to analyse expert evidence and wrongly rejected unchallenged expert evidence of applicant's witness - Whether respondent obliged to carry out core sampling of substrate

Legislation:

Builders' Registration Act 1939 (WA), s 12A(1)

Result:

Application for leave to review granted
Application for review upheld on merits but adjourned for further hearing on appropriate remedy

Category: B

Representation:

Counsel:

Applicant: Mr M Hotchkin
Respondent: Mr R Shaw

Solicitors:

Applicant: Hotchkin Hanley
Respondent: Lavan Legal

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

Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 210 CLR 181
Schenker and Co (Aust) Pty Ltd v Maplas Equipment and Services Pty Ltd [1990] VR 834
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588
Tangent Nominees Pty Ltd and Edwards & Anor [2005] WASAT 119
Warren v Coombes (1979) 142 CLR 531

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicant applied for leave to review and to review a decision of the Building Disputes Tribunal which had dismissed the applicant's claim against the respondent for alleged failure to install a waterproof membrane in a proper and workmanlike manner, such that the building work was faulty or unsatisfactory.
As there existed no dispute on the facts, the proper determination of the matter depended on the proper inferences to be drawn from those facts. The Tribunal found that the Building Disputes Tribunal had erred in a number of respects. A proper analysis of the opposing expert evidence had not been carried out and the effect of the contract documentation was misconstrued. As a result, the Building Disputes Tribunal wrongly concluded that the builder could rely on the drawings and was not alerted by the drawings to the existence of an underlying porous lightweight concrete.
On a proper analysis of the expert evidence, and the undisputed factual evidence, the Tribunal found that the cause of failure of the membrane was that moisture had become trapped in a layer of porous lightweight concrete which formed part of the substrate of the roof and the builder had failed to ensure that the substrate was thoroughly dry before applying the membrane, as the specifications of the contract required it to do. Accordingly, the Tribunal determined that leave to review the decision should be granted, the review should be upheld, but adjourned for later hearing, the question of the appropriate remedy…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] WASAT 239
Decision Date: 13 SEPTEMBER 2007

CaseChat Overview and Summary

The applicants, Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd, sought leave to appeal and review the decision of the Building Disputes Tribunal, which had rejected their claims. The dispute centred around issues pertaining to the building quality and compliance with the Builders' Registration Act 1939 (WA). The applicants argued that the Tribunal had erred in its handling of the evidence and its conclusions, while the respondent, presumably the party against whom the claims were made, maintained its stance against the applicants' assertions.

The court was tasked with determining whether the Building Disputes Tribunal had misconceived the evidence presented, failed to properly analyse expert evidence, and wrongly dismissed the unchallenged expert evidence provided by the applicants. Additionally, the court had to decide if the respondent was obligated to perform core sampling of the substrate as part of the dispute resolution.

In its reasoning, the court found that the Building Disputes Tribunal had indeed misconceived the evidence and mishandled the expert testimonies. The court concluded that the Tribunal had not correctly considered the unchallenged expert evidence provided by the applicants, which was a significant oversight. As a result, the application for review was upheld, and the decision of the Tribunal was set aside. The court granted the applicants leave to introduce a further ground of review and allowed the review application, scheduling a new hearing to determine the appropriate remedy in place of the Tribunal's order. The court also set a directions hearing to discuss potential costs and to schedule the final hearing for the matter.

Orders

Orders of the court

1. The applicant is granted leave to rely on the further ground of review filed on 17 May 2007. 2. The applicant is granted leave to have the decision of the Building Disputes Tribunal made on 1 August 2006 reviewed. 3. The application for review is upheld and the decision under review is set aside. 4. The review hearing will be adjourned to a later date for the determination of the appropriate remedy to be granted in substitution for the order made by the Building Disputes Tribunal. 5. The application is otherwise adjourned to a directions hearing on 25 October 2007 in order to address any application for costs and to program the matter to final hearing for an order to be made in substitution of that made by the Building Disputes Tribunal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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