Sanders and Gemmill Homes Pty Ltd

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.