Sanders and Gemmill Homes Pty Ltd - [2017] WASAT 41

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)

CITATION: SANDERS and GEMMILL HOMES PTY LTD [2017] WASAT 41

MEMBER: MS C WALLACE (SENIOR MEMBER)

HEARD: 20 FEBRUARY 2017

DELIVERED : 8 MARCH 2017

FILE NO/S: CC 1205 of 2016

BETWEEN: GEOFFREY FRANK SANDERS
Applicant
AND
GEMMILL HOMES PTY LTD
Respondent

Catchwords:

Application for leave to review Criteria for granting leave Whether original decision wrong or attended with sufficient doubt Factors relevant in exercise of discretion when deciding appropriate building remedy order Whether remedial order or monetary order appropriate Whether substantial injustice suffered

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5(1), s 5(2), s 36, s 51, s 58
Home Building Contracts Act 1991 (WA), s 17

Result:

Application for leave partly granted

Summary of Tribunal's decision:

On 12 July 2016, the original Tribunal dismissed two complaints brought by the applicant owner against the respondent builder and found a third complaint of faulty workmanship to be successful. The applicant sought an order from the original Tribunal requiring work to be performed to remedy the faulty workmanship. The respondent submitted that due to a significant breakdown in the relationship between the parties that a monetary order was more appropriate. The original Tribunal accepted the submission made by the respondent in this regard and made a monetary order in favour of the applicant.
The applicant filed an application pursuant to s 58 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) seeking leave to review each of the orders made by the original Tribunal. The applicant bore the onus of establishing that the decision of the original Tribunal was wrong or attended with sufficient doubt and if left unreversed, would lead to a substantial injustice being suffered.
The Tribunal found that in dismissing two of the applicant's complaints, the original Tribunal had not erred and the decision was not attended with sufficient doubt to justify granting leave to review that decision. However, the Tribunal did find that the original Tribunal, in exercising its discretion to make a monetary order rather than a remedial order in favour of the applicant, failed to take into account relevant factors including: the owner's preference to elect a remedial order; the advantages to both parties afforded by a remedial order which are not afforded to them by the making of a monetary order; and that the usual order where a finding of faulty workmanship is made is to require the respondent to rectify those works. The Tribunal also found that the original Tribunal erred by placing weight on the following factors: that the relationship between the parties was not good, which would ordinarily be the case in a dispute of this nature; and that the applicant did not agree with the respondent's proposed remedial approach. The Tribunal found that a substantial injustice would be suffered if the original decision in this respect was left unreversed.
The Tribunal therefore granted leave…

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.

Keep reading for free

Create a free CaseChat account to read Sanders and Gemmill Homes Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] WASAT 41
Decision Date: 8 MARCH 2017

CaseChat Overview and Summary

The case of Sanders and Gemmill Homes Pty Ltd involved an application for leave to review a decision made by a Tribunal regarding the appropriate building remedy order. The applicant, Sanders, sought a remedy for faulty and/or unsatisfactory work performed by the builder, Gemmill Homes. The Tribunal had originally ordered a monetary remedy, but Sanders argued that a remedial order was more appropriate. The legal issues before the court included whether the original decision was wrong or attended with sufficient doubt, and what factors should be considered when deciding the appropriate building remedy order. Additionally, the court needed to determine whether a remedial order or a monetary order was appropriate, and whether substantial injustice would be suffered if the original decision was left unreversed.

The court found that the original Tribunal had erred in their approach to determining the appropriate remedy. The Tribunal had failed to take into account the applicant's desire to elect a remedy, as the underlying intent of the legislation is to protect consumers in circumstances where a regulated building service has been performed in a faulty and/or unsatisfactory manner or not performed in a proper and proficient manner. The Tribunal also erred by not giving adequate weight to relevant considerations, such as the usual order in circumstances of a finding of faulty and/or unsatisfactory work being an order requiring the respondent to remedy its own work. The Tribunal further erred in finding that there had been a breakdown in the relationship between the parties, as this finding was given too much weight and was not irretrievable or at a stage where compelling the respondent to return would have inevitably resulted in ongoing dispute between them.

The court concluded that the original Tribunal had erred in giving weight to the fact that the applicant did not agree with the respondent's proposed remedial methods, as such issues are relevant in applications pursuant to s 51 of the BSCRA Act but are not considerations which ought to be taken into account by the Tribunal in refusing to make a building remedy order pursuant to s 36(1)(a) in the first instance. The court also found that there would be a substantial injustice done by leaving the decision in respect of the appropriate remedy unreversed, as an order to pay is significantly different in nature and does not have the advantages offered by an order requiring work to be done. For these reasons, leave to review was granted partially in relation to the nature of the building remedy order to be made in favour of the applicant on the basis of a finding that the cracking of the cornices was work which was faulty and/or unsatisfactory.

The final orders of the court were that leave to review was granted partially, and the original decision was reversed and replaced with an order requiring the builder to remedy the faulty and/or unsatisfactory work. The builder was also ordered to pay costs of the review application.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

It is this Tribunal's view that the original Tribunal have erred in their approach to determining what was the appropriate remedy to order in favour of the applicant. In this regard the original Tribunal erred in the following respects:1)There was a failure to take into account and to give weight to the applicant's desire to elect a remedy given that the underlying intent of the legislation is to protect consumers in circumstances where a regulated building service has been performed which is faulty and/or unsatisfactory manner or not performed in a proper and proficient manner.2)The original Tribunal erred by not giving adequate weight to relevant considerations including that the usual order in circumstances of a finding of faulty and/or unsatisfactory work is an order requiring the respondent to remedy its own work, given the advantages afforded to both parties as set out in [30] above.3)Although the original Tribunal found that there had been a breakdown in the relationship the original Tribunal erred in this finding on two bases:i)firstly, in giving too much weight to the breakdown, in the absence of a finding of a complete lack of confidence by the applicant in the respondent's workmanship. A breakdown of the relationship between the parties per se is in most proceedings a natural consequence of a dispute arising between an owner and a builder and ought not, in and of itself, deprive an owner of their elected remedy, andii)secondly, in not finding such breakdown to be irretrievable or at a stage where to compel the respondent to return would have inevitably resulted in ongoing dispute between them (Trengove and Celebration Nominees Pty Ltd [2012] WASAT 65 at [36]).4)The original Tribunal also erred in giving weight to the fact that the applicant did not agree with the respondent's proposed remedial methods. Issues such as the applicant interfering with the respondent's ability to perform the works are relevant in applications pursuant to s 51 of the BSCRA Act, but are not considerations which ought to be taken into account by the original Tribunal in refusing to make a building remedy order pursuant to s 36(1)(a) in the first instance. The Tribunal also finds that there would be a substantial injustice done by leaving the decision in respect of the appropriate remedy unreversed. This is because an order to pay is significantly different in nature and does not have the advantages offered by an order requiring work to be done which have been identified at [30] above. For the reasons given above, leave to review is granted partially in relation to the nature of the building remedy order to be made in favour of the applicant on the basis of a finding that the cracking of the cornices was work which was faulty and/or unsatisfactory.