Psaros Builders Pty Ltd v Owners of Strata Plan 52843
[2014] WASC 34
•11 FEBRUARY 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: PSAROS BUILDERS PTY LTD -v- OWNERS OF STRATA PLAN 52843 [2014] WASC 34
CORAM: ALLANSON J
HEARD: 21 AUGUST 2013
DELIVERED : 11 FEBRUARY 2014
FILE NO/S: GDA 3 of 2013
BETWEEN: PSAROS BUILDERS PTY LTD
Appellant
AND
OWNERS OF STRATA PLAN 52843
Defendant
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram :MS A DAVIES (SENIOR SESSIONAL MEMBER)
MR J FISHER (SENIOR SESSIONAL MEMBER)
MR P MITTONETTE (SESSIONAL MEMBER)
Citation :OWNERS OF STRATA PLAN 52843 AND PSAROS BUILDERS PTY LTD [2013] WASAT 46
File No :CC 602 of 2012
Catchwords:
Appeal from State Administrative Tribunal - Statutory construction - Whether the Tribunal can make more than one building remedy order under s 36 Building Services (Complaint Resolution and Administration) Act 2011 (WA) - Words 'one of the following' in s 36 inconsistent with words 'one or more of' in s 41 - Intent of legislature - Section 10 Interpretation Act 1984 (WA) - Distinction not sufficient to show intent to displace the general rule
Legislation:
Building Act 2011 (WA)
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5, s 7, s 13, s 36, s 37, s 38, s 41, s 42, s 43
Building Services (Complaint Resolution and Administration) Regulations 2011 (WA), reg 5, reg 6
Home Building Contracts Act 1991 (WA), s 17, s 20, sch 1 cl 5
Interpretation Act 1984 (WA), s 3, s 10(c), s 18
State Administrative Tribunal Act 2004 (WA), s 105
Result:
Leave to appeal granted
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr B G Grubb
Defendant: Mr A W Buchan
Solicitors:
Appellant: Metaxas & Hager
Defendant: Hotchkin Hanly
Case(s) referred to in judgment(s):
Atkinson and Rio Vista Pty Ltd trading as Freedom Pools and Spas [2012] WASAT 116
Australian Finance Direct Ltd v Director of Consumer Affairs Victoria [2007] HCA 57; (2007) 234 CLR 96
Chief Executive Officer, Department for Child Protection v Hardingham [2011] WASCA 262
Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs (1992) 176 CLR 1
Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55
Commonwealth v Baume (1905) 2 CLR 405
Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) [1981] HCA 26; (1981) 147 CLR 297
Lourey v Legal Profession Complaints Committee [2012] WASCA 112
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
ALLANSON J: Psaros Builders Pty Ltd was the builder of Tyne Square, a mixed use development in Newcastle Street, North Perth. The respondent is a body corporate constituted under s 32 of the Strata Titles Act 1985 (WA).
Under s 5(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), a person may make a complaint to the Building Commissioner about a regulated building service not being carried out in a proper and proficient manner or being faulty or unsatisfactory. The Building Commissioner has power under s 37 to deal with a complaint by making a building remedy order. The Building Commissioner may also refer a complaint to the State Administrative Tribunal (the Tribunal): s 38.
On 7 March 2012, the respondent made a complaint against Psaros Builders for water ingress into the northern part of the basement car park of Tyne Square. The Building Commissioner referred the complaint to the Tribunal.
In the proceedings in the Tribunal, the respondent contended it was entitled to an order requiring Psaros Builders to rectify the work in the basement in accordance with the applicant's experts' recommendations, and also sought to recover the costs of interim remedial work that had already been done.
On 5 April 2013 the Tribunal ordered:
1.[Psaros Builders] must pay the applicant $76,477 within 28 days of the date of this order.
2.[Psaros Builders] is to remedy the ingress of water into the basement carpark at Tyne Square in accordance with option 1 of the Joint Expert Recommendations dated 10 October 2012 within six months of the date of this order or such further date as the Tribunal orders.
3.Compliance with order 2 is subject to completion of a duly certified design by a structural engineer and written agreement to the certified design by the applicant.
4.Compliance with order 2 may require some development of option 1 to ensure compliance with all relevant laws, regulations and requirements, including, for example, minimum height requirements. If this cannot be resolved by agreement between the parties, each party has liberty to apply on seven days' notice.
5.[Psaros Builders] is to make good areas affected by the remedial work.
Psaros Builders seeks leave to appeal from that decision under s 105 of the State Administrative Tribunal Act 2004 (WA) on a single ground. In substance, the question of law is whether the Tribunal may order a builder to pay compensation and to remedy building services where the Building Services (Complaint Resolution and Administration) Act permits it to make a building remedy order that consists of one only of the following:
(a)an order that a person who carried out a regulated building service remedy the building service as specified in the order;
(b)an order that a person who carried out a regulated building service pay to an aggrieved person such costs of remedying the building service as the Building Commissioner or the Tribunal considers reasonable and specifies in the order;
(c)an order that a person who carried out a regulated building service pay to an aggrieved person a sum of money specified in the order to compensate the aggrieved person for the failure to carry out the building service in a proper and proficient manner or for faulty or unsatisfactory building work.
An appeal is permitted only 'on a question of law': s 105(2) State Administrative Tribunal Act. It is not necessary in this matter to discuss again the nature of an appeal pursuant to s 105, and the principles governing when leave should be granted: see, for example, Chief Executive Officer, Department for Child Protection v Hardingham [2011] WASCA 262 [43] ‑ [44]; Lourey v Legal Profession Complaints Committee [2012] WASCA 112 [27] ‑ [28]. The present appeal is on a question of law.
If the Tribunal erred as alleged, it acted beyond power. The respondent argued that the appellant would suffer no substantial injustice. I cannot accept that submission. A monetary order of the Tribunal is enforceable in the same manner as a judgment of the Supreme Court. Failure to comply with an order, other than a monetary order, is an offence. The interests of justice require that the appellant be relieved of those consequences should they result from an invalid administrative decision.
The appellant's contention on the question of law is reasonably arguable. I will grant leave.
The legislative scheme
The Building Services (Complaint Resolution and Administration) Act was part of a package of reform in 2011 which included the enactment of the Building Act 2011 (WA) and the Building Services (Registration) Act 2011 (WA), and the repeal of the Builders Registration Act 1939 (WA). The Building Services (Complaint Resolution and Administration) Act provides a system for dealing with complaints about building services.
Under s 5(1) of the Building Services (Complaint Resolution and Administration) Act, a person may make a complaint to the Building Commissioner about a regulated building service not being carried out in a proper and proficient manner or being faulty or unsatisfactory. The section gives a right of complaint to persons who are not in a contractual relationship with the person providing the building service, as well as those who are. Section 5(5) provides for the making of regulations as to who can make a building service complaint. Regulations have been made which limit the right to complain to a person 'whose interests are being, or have been, adversely affected by the carrying out of the regulated building service': Building Services (Complaint Resolution and Administration) Regulations 2011 (WA), reg 5.
Section 5(2) provides for complaints by an owner or builder under a home building work contract, about a matter referred to in s 17, s 20, or sch 1 cl 5 of the Home Building Contracts Act 1991 (WA). Section 17 of the Home Building Contracts Act provides for a claim for breach of contract, not being a breach in respect of which a building remedy order may be made under the Building Services (Complaint Resolution and Administration) Act. In effect, a claim that a regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory is dealt with by complaint under s 5(1) and any remedy is under s 37 or s 38 (discussed below), including when the complaint relates to a home building contract.
It is not apparent whether a single complaint can be made about matters arising under s 5(1) and (2). That is, must an owner wishing to complain about unsatisfactory work and some other breach of a home building work contract make two or more complaints?
Under s 5(5), regulations can be made requiring preliminary action before making a complaint. Regulation 6 of the Building Services (Complaint Resolution and Administration) Regulations provides:
(1)In this regulation ‑
complainant means a person proposing to make a building service complaint or HBWC complaint, as the case requires.
(2)At least 14 days before making a complaint under section 5(1) or (2) of the Act, the complainant must give to the person who will be the respondent written notice that the complainant proposes to make the complaint together with such description as the complainant is reasonably able to give of ‑
(a)the remedy the complainant proposes to seek; and
(b)the evidence on which the complainant proposes to rely.
(3)A complaint under section 5(1) or (2) of the Act must be accompanied by proof that notice has been given as required under this regulation.
(4)The Building Commissioner may waive or modify the requirement to comply with subregulation (2) or (3) if the Building Commissioner is satisfied that, in the particular circumstances, the complainant has given adequate notice about the proposed complaint.
The Building Commissioner, after receiving a complaint, must decide whether, and to what extent, to accept it or to refuse to accept it: s 7(1) Building Services (Complaint Resolution and Administration) Act. Among the grounds upon which the Building Commissioner may refuse to accept a complaint are: if the matter complained about is the subject of another complaint under the Act: s 7(3)(e); or an arbitrator or other person or a court or other body has made an order, judgment or finding about the matter complained about: s 7(3)(f).
Section 7(4) provides that if an issue raised in the complaint has already been dealt with by the Building Commissioner, or a complaint about the issue has already been referred to the Tribunal, the Building Commissioner may refuse to accept the complaint 'to the extent to which it relates to that issue'.
Under s 7(5), an issue can be dealt with both as a disciplinary complaint and as a complaint under s 5.
A complaint may be about more than one matter. Section 13 permits the complainant to withdraw a complaint, and allows withdrawal 'so far as it relates to some only or part only of the matters that form the subject of the complaint': s 13(3).
Where the Building Commissioner accepts a complaint, he or she must cause an investigation of the complaint to be carried out: s 9. After considering a report on an investigation, the Building Commissioner may dismiss the complaint, commence a conciliation proceeding, deal with the complaint under s 37 (or s 42 for a complaint under the Home Building Contracts Act), or may refer the complaint to the Tribunal: s 11. If the Building Commissioner refers a complaint to the Tribunal, the complainant is taken to be the applicant, and the Building Commissioner is not a party unless joined under s 38 of the State Administrative Tribunal Act.
Building remedy orders
Part 3, Division 2, deals with building remedy orders.
Section 36 provides that a building remedy order consists of one of the following ‑
(a)an order that a person who carried out a regulated building service remedy the building service as specified in the order;
(b)an order that a person who carried out a regulated building service pay to an aggrieved person such costs of remedying the building service as the Building Commissioner or State Administrative Tribunal,as the case requires, considers reasonable and specifies in the order;
(c)an order that a person who carried out a regulated building service pay to an aggrieved person a sum of money specified in the order to compensate the aggrieved person for the failure to carry out the building service in a proper and proficient manner or for faulty or unsatisfactory building work.
The Building Commissioner may deal with a building service complaint by making a building remedy order under s 37. The Building Commissioner cannot make a building remedy order requiring work to be done of a value estimated by the Building Commissioner to exceed the prescribed amount, or requiring an amount exceeding the prescribed amount to be paid. The Building Commissioner may refer a complaint to the State Administrative Tribunal. The Tribunal may deal with a building service complaint by making a building remedy order. There are limits on the amount which the Tribunal can order where the respondent is not a registered building services provider: s 38(2). Otherwise, the monetary jurisdiction of the Tribunal appears to be unlimited.
HBWC remedy orders
The Building Commissioner and the Tribunal may also make a HBWC remedy order under s 41, s 42 and s 43 of the Building Services (Complaint Resolution and Administration) Act.
A HBWC remedy order in respect of a complaint about a breach of s 17 of the Home Building Contracts Act consists of one or more of the orders set out in s 41(2) ‑ where the complaint is of a matter other than a breach of s 15. Where the complaint is about a breach of s 15, a HBWC remedy order consists of one or more of the matters set out in s 41(3). Section 15 deals with unconscionable, harsh or oppressive conduct by a builder.
Section 20 of the Home Building Contracts Act provides for the adjustment of rights between owner and builder when a contract has been terminated under the Act. Section 41(4) of the Building Services (Complaint Resolution and Administration) Act provides for a HBWC remedy order in favour of either the owner or the builder.
Under s 42, the Building Commissioner may deal with a HBWC complaint by making a HBWC remedy order referred to in s 41(2), (4) or (5), if satisfied the order is justified. The Building Commissioner may not order work the estimated value of which exceeds the prescribed amount, or require a party to pay an amount that exceeds the prescribed amount. If the Building Commissioner refers a HBWC complaint to the Tribunal, the Tribunal may make a HBWC remedy order (including an order under s 41(3)). The orders that can be made by the Tribunal are also subject to a monetary limit.
The jurisdiction of the courts
Under the repealed Builders Registration Act, a complaint was heard by the Building Disputes Tribunal, although the repealed Act preserved the jurisdiction of the courts: s 12A(6). The new scheme maintains the use of an administrative body to deal with complaints and further provides that, if a complaint is made, the matter to which the complaint relates (whether it is shown in the complaint or as emerging in the course of the determination of the complaint) is not justiciable in any court unless,
(a)the matter was before the court at the time when the complaint was made; or
(b)the Building Commissioner does not accept the complaint; or
(c)the complaint is dismissed for want of jurisdiction or without deciding the matter on its merits; or
(d)the complaint is withdrawn or not pursued; or
(e)the matter is ordered to be transferred to the court under s 55(3); or
(f)as a result of judicial review, a determination of the complaint is quashed or declared invalid on the ground that there was not jurisdiction to deal with the complaint under this Act. (Section 54)
Section 55 is headed 'Transfer of Proceeding'. Relevantly, s 55(3) provides:
If a matter that a court has jurisdiction to determine is the subject of a building service complaint or HBWC complaint before the State Administrative Tribunal, the Tribunal may order that the matter be transferred to that court in accordance with the rules of the court.
The decision in the State Administrative Tribunal
The question arising on this appeal had been considered by the Tribunal in one earlier proceeding under the Act. In Atkinson and Rio Vista Pty Ltd trading as Freedom Pools and Spas [2012] WASAT 116, a differently constituted Tribunal held that the remedies in s 36(1)(a), s 36(1)(b) and s 36(1)(c) are alternatives, and the Tribunal had no power to order more than one of them.
The present Tribunal declined to follow Atkinson and Rio Vista. It held that while a building remedy order is one of the three alternatives in s 36, it had power to make more than one building remedy order on a complaint. Essentially, the Tribunal gave two reasons. First, as a principle of statutory construction embodied in s 10(c) of the Interpretation Act 1984 (WA), in any written law words in the singular number include the plural, so that s 38 confers power to make one or more building remedy orders. Second,
[A] principal purpose of the BS(CRA) Act is to provide a system for dealing with complaints about building services (page 1 of the BS(CRA) Act), which may involve determination by the Tribunal (s 11). An interpretation of s 38(1) and s 36(1) must have regard to that purpose so that the Tribunal is able to resolve the whole of a complaint. In a complex complaint, having to choose one remedy when there are various types of damage, all of which flow from the poor workmanship in question, artificially limits the Tribunal's capacity to resolve the whole of a complaint.
The Tribunal found that it had the power to order the builder to remedy its work and to grant an award of money to compensate for the cost of interim remedial works already undertaken at the direction of the respondent, by making two building remedy orders.
Can the Tribunal make more than one building remedy order on a complaint?
There was no difference in principle between the parties as to the proper approach to construction of the Act.
First, the task of statutory construction begins and ends with consideration of the text of the written law: Australian Finance Direct Ltd v Director of Consumer Affairs Victoria [2007] HCA 57; (2007) 234 CLR 96 [34]; Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55 [39]. The meaning of any statutory provision must be determined 'by reference to the language of the instrument viewed as a whole': Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) [1981] HCA 26; (1981) 147 CLR 297, 320; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69]. A construction that promotes the purpose or object underlying a statute is to be preferred to one that would not promote that purpose or object (Interpretation Act 1984 s 18). But that cannot detract from the fundamental importance of the language used by the legislature.
Second, the construction of legislation should strive to give meaning and effect to every word of each provision, and not regard some words or provisions as superfluous or insignificant: Commonwealth v Baume (1905) 2 CLR 405, 414, 419; Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs (1992) 176 CLR 1, 12 ‑ 13; Project Blue Sky Inc [71].
Third, in construing s 36 and s 38 of the Building Services (Complaint Resolution and Administration) Act, effect should be given to the Interpretation Act, including s 10(c) on which the Tribunal relied. By s 3 of the Interpretation Act, its provisions apply to every written law unless in relation to a particular written law:
(a)express provision is made to the contrary; or
(b)in the case of an Act, the intent and object of the Act or something in the subject or context of the Act is inconsistent with such application.
The appellant submits that the Building Services (Complaint Resolution and Administration) Act evinces a clear intention in s 36(1) that a building remedy order may not consist of more than one of the remedies set out in pars (a), (b), and (c). That submission misstates the effect of the decision of the Tribunal. There is no room for doubt that s 36 permits a building remedy order to consist of one only of the three alternatives. But the question arises in the construction of s 37 and s 38: a building remedy order may deal with one thing only, but may the Building Commissioner and the Tribunal deal with a building service complaint by making more than one building remedy order.
The appellant's argument, however, is essentially the same, whether it is directed to s 36, or to s 37 and s 38. Section 36(1) provides a building remedy order consists of one of the three alternatives. In contrast, s 41(2) and (3) provide a HBWC remedy order in respect of a complaint under s 17 of the Home Building Contracts Act consists of one or more of the listed alternatives. The contrast in language is significant. To permit orders to be made under more than one paragraph of s 36(1) on one complaint is to give no meaning to the opening words of the section, and to ignore the difference between s 36 and s 41.
The reason for the different wording in s 36 and s 41 does not lie in the provisions for enforcement. The same enforcement provisions apply to a building remedy order, and to a HBWC remedy order.
The appellant also referred to other sections in the Act where the legislature has used the expression 'either or both' to make its intention clear: see s 18, s 19, s 30 and s 47.
The appellant did not directly deal with the second reason given by the Tribunal – that confining it to one of the orders in s 36(1) would artificially limit the Tribunal's capacity to resolve the whole complaint. The respondent embraced that reasoning. The respondent submitted that it is not consistent with the Act's stated purpose of providing a system for dealing with complaints about building services if the Tribunal could not make all of the orders necessary to deal with the whole of a complex complaint, perhaps containing several discrete matters. Specifically, the respondent argued that the intention of the Act would not be met if the Tribunal (or the Building Commissioner for matters within his monetary limits) could not both order the builder to remedy building work and order compensation to the complainant.
I do not accept this reasoning. First, there is nothing artificial in limiting the power of an administrative decision maker, which can have only the power conferred on it by statute. Second, the argument starts with an assumption that the Act was intended to provide a comprehensive scheme for the complete resolution of complaints relating to building work, however complex. The starting assumption is not found in the text of the Act.
The result in this appeal comes down to a question of construction, and turns on the comparison between s 36 and s 41. I am not suggesting that s 36 can be read out of context, but all of the other matters relied on by the appellant are completely equivocal.
While I can find no explanation in the text or object of the Act for the distinction between s 36 and s 41, that, in my opinion, is not sufficient. There is no express provision to the contrary of s 10 of the Interpretation Act, and the distinction between the two sections is not sufficient to show that the intent of the Act is inconsistent with the application of the general rule. The Tribunal may make more than one building remedy order where that is required to deal with a complaint.
This is not to suggest that the Building Commissioner or the Tribunal should deal with complex disputes. Section 54 excludes concurrent proceedings on the matter to which a complaint relates, but the Act does not otherwise exclude the jurisdiction of the courts or of arbitrators. In particular, the Tribunal may transfer a matter to a court with jurisdiction to determine the subject of a complaint: s 55(3). The Act does not set out the criteria by which this power is to be exercised. By implication, it would be exercised where the matters in dispute are not appropriate for administrative determination.
I would grant leave but dismiss the appeal.
5
11
6