RAE and PRIMA HOMES NOMINEES PTY LTD - [2020] WASAT 24

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   RAE and PRIMA HOMES NOMINEES PTY LTD [2020] WASAT 24
MEMBER:   MS R PETRUCCI, MEMBER
MR R AFFLECK, SENIOR SESSIONAL MEMBER

HEARD:   20 JANUARY 2020 (FINAL DOCUMENTS FILED ON 4 FEBRUARY 2020)
DELIVERED          :   25 FEBRUARY 2020
FILE NO/S:   CC 1438 of 2019
BETWEEN:   JAMES RAE
Applicant
AND
PRIMA HOMES NOMINEES PTY LTD
Respondent

Catchwords:

Building Services (Complaint Resolution and Administration) Act 2011 (WA) - Building service complaint - Standing of neighbour to lodge building service complaint - Whether regulated building service carried out in a way that was not done in a proper and proficient manner or was faulty or unsatisfactory - Whether owner has been adversely affected by regulated building service - Whether an order to be made by the Tribunal under s 38 of Building Services (Complaint Resolution and Administration) Act 2011 (WA) - Application for costs in proceedings

Legislation:

Building Act 2011 (WA), s 3
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s3, s 5, s 5(1), s 9(1), s 6(1), s 10, s 11(1), s 11(1)(d), s 36(1), s 36(1)(a), s 36(1)(c), s36(2), s 38, s 38(1), s 49, s 49(1)
Building Services (Complaint Resolution and Administration) Bill 2010 (WA)
Building Services (Complaint Resolution and Administration) Regulations 2011 (WA), reg 5
Building Services (Registration) Act 2011 (WA), s 3, s 17, s 18
Interpretation Act 1984 (WA), s 5
State Administrative Tribunal Act 2004 (WA), s 9, s 87(1), s 87(2), s 87(6)

Result:

Application unsuccessful

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	In Person

Solicitors:

Applicant	:	N/A
Respondent	:	N/A

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

Gemmill Homes Pty Ltd v Sanders [2018] WASC 179
J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S)
Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT (S)
Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [No 2] [2008] WASAT 302
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

This is an application under the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act).
Mr James Rae (owner or applicant) is the owner of No 32 Fleming Avenue, Cannington (the property).
On 13 August 2019, the owner lodged a complaint against Prima Homes Nominees Pty Ltd, (builder or respondent) with the Building Commissioner. The complaint concerned damage to the rear brick wall of the property (wall). The owner alleged that the builder caused damage to the wall as a result of excavation work which included the removal of trees in front of the wall at the rear of No 12 Corona Crescent, Cannington (development site) which is owned by Mr Craig Bordas and Mrs Karen Bordas (Mr and Mrs Bordas).
Earlier, on or about 5 June 2019, the owner had made…

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 24
Decision Date: 25 FEBRUARY 2020

CaseChat Overview and Summary

In the matter of RAE and PRIMA HOMES NOMINEES PTY LTD, the parties involved were the applicant, RAE, and the respondent, PRIMA HOMES NOMINEES PTY LTD. The dispute centred on the alleged defectiveness of building services provided by the respondent, specifically the excavation, removal of trees, and stump grinding conducted for the installation of sewer and stormwater drainage. The dispute was brought before the Building Services Tribunal in Western Australia. The applicant alleged that these services caused damage to their property, specifically the leaning of a wall, and sought orders under the Building Services (Complaint Resolution and Administration) Act 2011 (WA) for the respondent to rectify the issue and compensate for the damage.

The legal issues that the tribunal had to determine included whether the respondent was a registered building service provider under the Building Services (Registration) Act 2011 (WA), whether the works carried out constituted a regulated building service, and whether the applicant had been adversely affected by the respondent's actions. The tribunal also had to consider whether it had the jurisdiction to make orders under section 38 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) and whether costs should be awarded to either party.

The tribunal found that the respondent was indeed a registered building service provider, and the works in question did constitute a regulated building service. However, it was determined that the applicant's interests had not been adversely affected by the respondent's actions. The tribunal was satisfied that the wall's lean was due to natural causes, such as the age of the wall and its construction, and not the result of the respondent's work. Consequently, the tribunal dismissed the application and ordered that the applicant pay the respondent's costs in the proceedings.

Orders

Orders of the court

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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

The term 'registered building service provider' has the meaning given in s 3 of the Building Services (Registration) Act 2011 (WA) (Registration Act) as follows:registered building service provider means either of the following -(a)a building service practitioner;(b)a building service contractor[.] The requirements to be a building service practitioner and/or building service contractor are set out in s 17 and s 18 respectively of the Registration Act. The terms 'building work' and 'demolition work' are defined in s 3 of the Building Act 2011 (WA) as follows:building work means -(a)the construction, erection, assembly or placement of a building or an incidental structure; or(b)the renovation, alteration, extension, improvement or repair of a building or an incidental structure; or(c)the assembly, reassembly or securing of a relocated building or a relocated incidental structure; or(d)the changing of ground levels of land for the purposes of work of a kind mentioned in paragraph (a), (b) or (c) to an extent that could adversely affect land beyond its boundaries; or(e)site work on any land for the purposes of, or required because of, work of a kind mentioned in -(i)paragraph (a), (b), (c) or (d); or(ii)paragraph (a) or (b) of the definition of demolition work;or(f)other prescribed work,but does not include work of a kind prescribed for the purposes of this definition as not being building work[.]…demolition work means -(a)the demolition, dismantling or removal of a building or an incidental structure; or(b)the changing of ground levels for the purposes of work of a kind mentioned in paragraph (a) to an extent that could adversely affect land owned by a person other than an owner of the land on which the building or incidental structure that is the subject of the demolition work is located; or(c)other prescribed work,but does not include work of a kind prescribed for the purposes of this definition as not being demolition work[.] The Tribunal is satisfied that the builder is a registered building service provider who undertook a regulated building service which included excavating, the removal of trees and stump grinding of some of the trees in front of the wall in order to install sewer and storm water drainage. It is these works which the owner alleged caused his wall to lean. The Tribunal turns, next, to consider whether the owner's interests are being, or have been adversely affected by the builder carrying out the regulated building service comprised of the excavating, the removal of trees and stump grinding of some of the trees in front of the wall in order to install sewer and storm water drainage. It is useful to note the observations of Mr Condelli who inspected the wall on 3 July 2019 which are set out in the RC report (pages 1 to 2) as follows:•The rear wall is of single brick and pier construction•The bricks used to construct the wall and piers are standards 230L x 110W x 76H•The rear wall dimension is approx. 16500L x 2060H x 110W•The piers are a single brick attached to the wall i.e. 230 wide including wall and mortar. The piers are spaced at approx. 2400 centres along the wall. The owner advises the piers are brick tied into the wall, but are most likely not steel reinforced anchored to the footing•The wall has a full height expansion joint at approx. 8m from the front of the wall•The wall has been constructed on top of 240H x 500L masonry blocks. These blocks are on an approx. 160 deep concrete/masonry footing•There are no visible cracks in the wall or piers•One of the piers has silicon at the top where there is cabling going to a light•The gate (south) end of the wall can be moved by hand•The wall is on an approx. 20mm lean (over 1.2m), away from the property at the south end. This lean diminishes to vertically plumb approx. 3.7m north of the expansion joint•Adjacent to the loose and leaning south end of the wall are recently installed drainage risers and a storm water tank•The closest sewer riser is approx. 1100 from the wall•The storm water tank measures 1660 deep and is approx. 1400 from the wall•There is a large palm tree behind the south corner of the wall in the property of #32. The top of the tree has been lopped by the owners. (The owner advises the tree was lopped since it was allowing rats to get into the house)•The ground in front of the wall (on the development site) is soft to dig. No penetrometer test was under taken to determine compaction•Large tree roots can be seen against the rear section of the wall in the development site•There is a boundary peg at the south end of the wall indicating this end of the wall is in the property of #32