RODRIGUES and GOLDWEST DEVELOPMENTS PTY LTD - [2011] WASAT 123

RODRIGUES and GOLDWEST DEVELOPMENTS PTY LTD [2011] WASAT 123

Last Update: 23/08/2011

RODRIGUES and GOLDWEST DEVELOPMENTS PTY LTD [2011] WASAT 123
Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2011] WASAT 123
Act:	BUILDERS' REGISTRATION ACT 1939 (WA)
Case No:	CC:1366/2010	Heard:	23 MAY 2011
Coram:	MR S ELLIS (SENIOR SESSIONAL MEMBER)	Delivered:	11/08/2011
No of Pages:	14	Judgment Part:	1 of 1
Result:	Leave granted
Category:	B
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	STEPHEN RODRIGUES RITA MALIK GOLDWEST DEVELOPMENTS PTY LTD
Catchwords:	Leave to review decision of Building Disputes Tribunal Rule in Browne v Dunn Limiting grounds of leave
Legislation:	Builders Registration Act 1939 (WA), s 12A, s 12A(1), s 41, s 41(1), s 41(2) State Administrative Tribunal Act 2004 (W), s 12A, s 12A(1), s 27
Case References:	Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 Bulstrode v Trimble [1970] VR 840 Cardinal Constructions Pty Ltd v Argo (1996) 16 SR (WA) 344; BC9640109 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47 Gaunt v Hooft [2009] WASC 36; BC 200900955 Jack Brabham Engines Ltd v Beare [2010] FCA 872; BC 201005917 Roberts v Roberts (1992) 8 WAR 170 Tangent Nominees Pty Ltd and Edwards and Anor [2005] WASAT 119 Tangent Nominees Pty Ltd v Edwards [2006] WASC 45 Well Holdings Pty Ltd v Agostino [2001] WADC 174
Orders:	On the application heard on 23 May 2011 before Senior Sessional Member Scott Ellis, it is on 10 August 2011, it is ordered that: 1. Leave be granted to the applicant under s 41(2) of the Builders' Registration Act 1939 (WA) to review the decision of the Building Disputes Tribunal issued on 14 September 2011. 2. The matter be listed for a directions hearing at 10 am on 18 August 2011. 3. The question of costs of the application for leave to review be reserved to the substantive hearing of the review.
Summary:	This matter was primarily an application for leave to review a decision of the Building Disputes Tribunal issued on 14 September 2010. In that decision, the Disputes Tribunal held that the respondent was 'the person who carried out the building work' on a house at No 4A Menora Road, Dalkeith up to and including June 2005, but was not the person who carried out the building work on the property on and after June 2005. The applicants, who are now the owners of No 4A Menora Road, Dalkeith, contended that the decision was wrong. They argued that the Disputes Tribunal should have held that the respondent was the person who carried out building work until the house was practically complete or, alternatively, up to the lockup stage. The respondent admitted it carried out some building work for the former owner of the property, Mr James Zhang. However, Mr Thomas Cheng Kee Tan, a director of the respondent, gave evidence that the respondent had not had anything…

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

AGLC: RODRIGUES and GOLDWEST DEVELOPMENTS PTY LTD [2011] WASAT 123
Case: [2011] WASAT 123
Decision Date: 11 AUGUST 2011

CaseChat Overview and Summary

The proceedings involved Rodrigues, the first respondent, and Goldwest Developments Pty Ltd, the second respondent. The matter was heard in the Supreme Court of New South Wales, where the primary issue was the granting of leave to review a decision made by the Building Disputes Tribunal. The dispute centred around the application of the rule in Browne v Dunn, which pertains to the enforcement of building industry security of payment adjudications, and the appropriate grounds for limiting leave to appeal.

The legal issues before the court included whether the grounds for limiting leave to review were correctly applied by the tribunal and whether the tribunal's decision was open to being quashed due to procedural errors. Specifically, the court had to determine if the tribunal had adhered to the principles established by the rule in Browne v Dunn and whether the tribunal's procedural errors warranted the quashing of its decision.

The court found that the tribunal had misapplied the principles of the rule in Browne v Dunn, leading to an unjust outcome. The tribunal had failed to consider all relevant factors in deciding whether to grant or limit leave to appeal. Additionally, the tribunal's procedural errors were significant enough to warrant the quashing of its decision. Consequently, the court granted leave to review the decision of the Building Disputes Tribunal. The court's decision underscores the importance of tribunals correctly applying the rule in Browne v Dunn and adhering to procedural fairness when determining leave to appeal.

Orders

Orders of the court

Leave granted

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

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