PLUNKETT HOMES (1903) PTY LTD and LAVENDER - [2010] WASAT 147

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: BUILDERS' REGISTRATION ACT 1939 (WA)

CITATION: PLUNKETT HOMES (1903) PTY LTD and LAVENDER [2010] WASAT 147

MEMBER: MR T CAREY (MEMBER)

HEARD: 23 JUNE 2010 AND 30 JUNE 2010

DELIVERED : Edited reasons delivered extemporaneously on 30 JUNE 2010

FILE NO/S: CC 409 of 2010

BETWEEN: PLUNKETT HOMES (1903) PTY LTD
Applicant
AND
PATRICK LAVENDER
PAULA LAVENDER
Respondents

Catchwords:

Building disputes - Application for leave to review decison - Whether liability can arise in respect of roof sheeting installed by a subcontractor the subject of later discolouration which the applicant could not foresee

Legislation:

Builders' Registration Act 1939 (WA), s 12A, s 12A(1), s 41(1)

Result:

The application is unsuccessful

Category: B

Representation:

Counsel:

Applicant: Mr S Pentony
Respondents : Selfrepresented

Solicitors:

Applicant: Lavan Legal
Respondents : Self-represented

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

Bradshaw v McGuire (unreported, WASC, 30 April 1986)
J-Corp Pty Ltd and Ly and Anor [2006] WASAT 132

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicant sought leave to review a decision of the Building Disputes Tribunal requiring it to rectify part of a Colorbond roof affected by discolouration. It was argued that the applicant's lack of knowledge, and inability to have knowledge, that the installation of the roof sheeting by a subcontractor might have an unsatisfactory result meant that liability could not arise under the statutory provision relied upon (s 12A(1) of the Builders' Registration Act 1939 (WA)).
The Tribunal considered relevant authorities, including a previous Tribunal decision and a Supreme Court Full Court decision, Bradshaw v McGuire (unreported, WASC, 30 April 1986), which, at least on their face, appeared to contradict the applicant's submission. The applicant sought to differentiate between the judgments in Bradshaw v McGuire, and to distinguish the comments of the Chief Justice in that case. However, the Tribunal rejected the applicant's arguments. It found, based on Bradshaw v McGuire, that liability under s 12A(1) of the Builders' Registration Act 1939 (WA) may lie in any case of faulty or unsatisfactory building work being demonstrated in a built product.
The Tribunal accordingly refused leave and dismissed the application.
The Tribunal gave its decision orally on 30 June 2010. Its reasons, taken from the transcript and edited in minor respects to aid clarity, were as follows.

Introduction

This is an application under s 41(1) of the Builders' Registration Act 1939 (WA) (BR Act) for leave to review a decision of the Building Disputes Tribunal (BDT) made on 5 March 2010, reflected in Order to Remedy No 216 of 200910 in terms that:
Plunkett Homes (1903) Pty Ltd rectify the fault or unsatisfactory building work at 65 Runs Avenue, Darling Downs, as listed below. The builder is to remedy the defects in the roofing structure within eight weeks of the date of this order.
It was common ground before me that the remedial works required by the order to remedy were limited to part of the Colorbond sheeting…

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: [2010] WASAT 147
Decision Date: 30 JUNE 2010

CaseChat Overview and Summary

In the case of Plunkett Homes (1903) Pty Ltd and Lavender, the primary dispute involved the liability for defects in roof sheeting installed by a subcontractor. The matter was brought before the Supreme Court of Victoria to seek leave for a review of a decision that held the applicant, Plunkett Homes, responsible for the discolouration of the roof sheeting. The subcontractor had installed the roof sheeting, which later exhibited discolouration, and the applicant argued that they could not have foreseen this defect.

The court was tasked with determining whether the applicant could be held liable for the defect in the roof sheeting, which was installed by a subcontractor. Specifically, the court had to consider if the applicant could be held responsible for defects that arose from the work of a subcontractor, despite not being able to foresee the defect. The key issue was the extent of the applicant's liability under the building contract, which outlined the scope of work and quality standards expected.

The court found that the applicant could be held liable for the defect in the roof sheeting, even though it was installed by a subcontractor. The court reasoned that the applicant was responsible for ensuring that the work was completed to the required standard, and the defect in the roof sheeting fell outside the acceptable quality standards. The court emphasised that the applicant's responsibility extended to the overall quality of the work, including the work performed by subcontractors. As a result, the applicant's application for leave to review the decision was dismissed. The court upheld the earlier decision that held the applicant liable for the defect in the roof sheeting.

Orders