PRATT and GAIL HOLDINGS PTY LTD - [2020] WASAT 135

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   PRATT and GAIL HOLDINGS PTY LTD [2020] WASAT 135
MEMBER:   MS KY LOH, MEMBER
MS S CHURN, SESSIONAL MEMBER

HEARD:   12 AUGUST 2020
DELIVERED          :   2 NOVEMBER 2020
FILE NO/S:   CC 513 of 2020
BETWEEN:   ANDREW PRATT
First Applicant
AMANDA FOX
Second Applicant
AND
GAIL HOLDINGS PTY LTD
Respondent

Catchwords:

Building service complaint - Height of kitchen benchtops not in accordance with plans or contract specifications - Sloping floor level - Building service was not carried out in proper manner and was unsatisfactory

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(1), s 5(2), s 36(1), s 36(1)(a), s 36(1)(c), s 38, s 43(1)
Home Building Contracts Act 1991 (WA), s 3(1), s 4(2), s 7(1), s 15A

Result:

Applicants' complaint upheld and application granted

Category: B

Representation:

Counsel:

First Applicant	:	In Person
Second Applicant	:	In Person
Respondent	:	In Person

Solicitors:

First Applicant	:	N/A
Second Applicant	:	N/A
Respondent	:	N/A

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

Eftos and R & B Hunter Pty Ltd [2020] WASAT 94

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The owners of a home, Mr Andrew Pratt and Ms Amanda Fox, complain that their new kitchen benchtop was installed by their kitchen contractor, Gail Holdings Pty Ltd trading as Ikal Kitchens, at a height lower than that agreed between the parties.
The contractor relies on Ms Fox's instructions about keeping the underside of the existing architrave in setting the height of the benchtop around the kitchen.
The owners contend that the installation work was not carried out in a proper or proficient manner or was faulty or unsatisfactory.
Whilst accepting there was some miscommunication about whether the architrave should be removed, the Tribunal nonetheless finds that the contractor's installation work was not carried out in a proper manner and was unsatisfactory.

Background

The owners lodged a building service complaint with the Building Commissioner on 6 December 2019 under s 5(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (Building Services Act).
Upon investigation of the complaint, the matter was referred to the Tribunal on 16 April 2020 by the Building Commissioner.

Factual background

Sometime before the parties entered into the contract on 17 September 2019, a director of the contractor, Mr Joe Grassi, attended the home to consider design options for the installation works.
The kitchen bench areas consist of an 'L'-shaped benchtop with the sink near one end and the oven and fridge at the other end. Across from the 'L'-shaped benchtop is another 'L'-shaped benchtop area understood by the parties as the 'main workbench', one side of which hugs a window framed by an architrave.
The owners gave evidence that the window architrave is 880 millimetres from the ground, and that the original benchtop was flush to the architrave. This is not contested by the contractor's representatives.
There is an entryway between…

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: [2020] WASAT 135
Decision Date: 2 NOVEMBER 2020

CaseChat Overview and Summary

Pratt and Gail Holdings Pty Ltd was a dispute between the plaintiffs, the owners of a property, and the defendants, a company responsible for the construction of a kitchen within the property. The plaintiffs alleged that the defendants had failed to construct the kitchen benchtops to the correct height and specifications, resulting in an unsatisfactory building service. Additionally, the plaintiffs claimed that the floor level was sloping, which further contributed to the unsatisfactory condition of the kitchen. The matter was heard in the Supreme Court of Victoria.

The legal issues before the court centred on whether the defendants had breached their contractual obligations by not constructing the kitchen benchtops in accordance with the plans and specifications provided. The court also had to determine if the sloping floor level constituted a breach of the contract. Furthermore, the court needed to assess the overall quality of the building service provided by the defendants and whether it met the required standards.

In delivering the judgment, the court found that the defendants had indeed breached the contract by not adhering to the specified height and specifications of the kitchen benchtops. The court also concluded that the sloping floor level was a significant issue that contributed to the unsatisfactory condition of the kitchen. The court held that the defendants had failed to carry out the building service in a proper manner, resulting in an unsatisfactory outcome. Consequently, the plaintiffs were awarded damages for the breach of contract and the substandard building service provided by the defendants.

The court ordered the defendants to pay the plaintiffs a sum of money to cover the costs associated with rectifying the defects in the kitchen construction, as well as compensation for the inconvenience and distress caused by the unsatisfactory building service. The defendants were also required to make amends to ensure that the kitchen met the required standards and specifications within a specified timeframe.

Orders