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PHELAN and THOMPSON SUSTAINABLE HOMES (WA) PTY LTD

PHELAN and THOMPSON SUSTAINABLE HOMES (WA) PTY LTD

Case [2025] WASAT 25 18 March 2025

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JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   PHELAN and THOMPSON SUSTAINABLE HOMES (WA) PTY LTD [2025] WASAT 25
MEMBER:   MS N FINDSON, MEMBER
MR J D ORR, SESSIONAL MEMBER

HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   18 MARCH 2025
FILE NO/S:   CC 1286 of 2023
BETWEEN:   KIERAN PHELAN
First Applicant
JOANNE PHELAN
Second Applicant
AND
THOMPSON SUSTAINABLE HOMES (WA) PTY LTD
Respondent

Catchwords:

Determination of preliminary issue as to whether Tribunal has jurisdiction - Proper construction - s 5(2) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) - s 17 of the Home Building Contracts Act 1991 (WA) - Home building work contract complaint

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(2), s 11(1)(d), s 12(a), s 41(2), s 41(2)(d), s 43, s 43(1), s 43(1)(a), s 43(1)(b)
Home Building Contracts Act 1991 (WA), s 3, s 3(1), s 4(4), s 4(5), s 9(1), s10(4), s 14(3), s 17, s 17(1)(a)(i), s 19, s 20, Sch 1, cl 5, Pt 2
State Administrative Tribunal Act 2004 (WA), s 42(1), s 42(3)

Result:

Preliminary issue determined
Respondent's application dismissed

Category: B

Representation:

Counsel:

First Applicant	:	Mr W Vogt
Second Applicant	:	Mr W Vogt
Respondent	:	Ms J Horwood

Solicitors:

First Applicant	:	Vogt Legal
Second Applicant	:	Vogt Legal
Respondent	:	Stonegate Legal Pty Ltd

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

Commissioner of Police v Thayli Pty Ltd [2020] WASC 43
Deshmukh and Distinctive Building Services Pty Ltd [2024] WASAT 15
Gemmill Homes Pty Ltd v Sanders [2018] WASC 179
The Owners of 52 Mill Point Road Strata Plan 62152 v Hanssen Pty Ltd [2021] WASAT 102

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

In November 2021, the applicants, Mr Kieran Phelan and Mrs Joanne Phelan engaged the respondent, Thompson Sustainable Homes (WA) Pty Ltd, to construct a residence for them on their property in Jane Brook, Western Australia.
Almost two years later, the applicants made a home building work contract complaint to the Building Commissioner against the respondent under s 5(2) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (the BSCRA Act). The complaint was made in circumstances where there had been 'no shovels in the dirt', with the applicants claiming that the respondent had repudiated the contract for the reasons set out in a breach notice dated 14 April 2023 and in a termination notice dated 5 May 2023.
The applicants seek compensation for the loss and damage they claim they incurred because of the breach and subsequent termination of the contract. Specifically, their claim for loss and damage is on a 'loss of bargain' basis. They seek compensation for the difference between the cost to construct the residence with another builder and the contract price.
On 11 October 2023, the Building Commissioner referred the complaint to the Tribunal.[1]
[1] Under s 11(1)(d) of the BSCRA Act the Building Commissioner may refer a home building…

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.

Continue reading PHELAN and THOMPSON SUSTAINABLE HOMES (WA) PTY LTD

Details

AGLC: PHELAN and THOMPSON SUSTAINABLE HOMES (WA) PTY LTD [2025] WASAT 25
Case: [2025] WASAT 25
Decision Date: 18 MARCH 2025

CaseChat Overview and Summary

Phelan and Thompson Sustainable Homes (WA) Pty Ltd (the Respondent) sought a review of a decision made by the Building Services Tribunal (the Tribunal) in relation to a complaint about home building work. The Tribunal found that it had no jurisdiction to hear the complaint and dismissed it. The matter before the court was whether the Tribunal had jurisdiction to hear the complaint under the relevant legislation. The Respondent argued that the Tribunal had jurisdiction, while the Tribunal argued that it did not. The court was required to determine whether the Tribunal had jurisdiction to hear the complaint under s 5(2) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) and s 17 of the Home Building Contracts Act 1991 (WA).

The court considered the proper construction of s 5(2) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) and s 17 of the Home Building Contracts Act 1991 (WA). The court found that the Tribunal did not have jurisdiction to hear the complaint as it did not fall within the scope of s 5(2) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA). The court held that the complaint was not a home building work complaint as it did not relate to a home building work contract. The court further held that the complaint was not a complaint about the administration of a home building work contract as it was not related to the administration of a home building work contract.

The court dismissed the application for judicial review and affirmed the decision of the Tribunal. The court held that the Tribunal did not have jurisdiction to hear the complaint as it did not fall within the scope of s 5(2) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) and s 17 of the Home Building Contracts Act 1991 (WA). The court held that the complaint was not a home building work complaint and was not a complaint about the administration of a home building work contract. The court dismissed the application for judicial review and affirmed the decision of the Tribunal.

Orders