Seow and Pillinger - [2008] WASAT 308

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: BUILDERS' REGISTRATION ACT 1939 (WA)

CITATION: SEOW and PILLINGER [2008] WASAT 308

MEMBER: MR T CAREY (MEMBER)

HEARD: 12 NOVEMBER 2008
RESPONDENT'S WRITTEN SUBMISSIONS FILED 18 NOVEMBER 2008
APPLICANT'S WRITTEN SUBMISSIONS FILED 27 NOVEMBER 2008

DELIVERED : 24 DECEMBER 2008

FILE NO/S: CC 584 of 2008

BETWEEN: JUNE SEOW
Applicant
AND
ANTHONY PILLINGER
Respondent

Catchwords:

Application for leave to review decisions of the Building Disputes Tribunal - Whether applicant denied procedural fairness - Circumstances where intervention on costs decisions warranted - Whether any error made out in dismissal of complaints - Invitation to reconsider under s 31 State Administrative Tribunal Act 2004 (WA)

Legislation:

Building Registration Act 1939 (WA), s 12A(1)(a), s 33A, s 38(4), s 41
State Administrative Tribunal Act 2004 (WA), s 31

Result:

Application successful in part

Category: B

Representation:

Counsel:

Applicant: Mr T Thies
Respondent: Mr K Burgoyne

Solicitors:

Applicant: Thies Barrister and Solicitor
Respondent: Kevin Burgoyne

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

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Bellgrove v Eldridge (1954) 90 CLR 613
Braham v Evans [2008] WASC 274
Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR
Re Will of Gilbert (dec'd) (1946) 46 SR (NSW) 318
Ruxley Electronics & Construction Ltd v Forsyth [1996] AC 344
Tangent Nominees Pty Ltd and Edwards [2005] WASAT 19
Tangent Nominees Pty Ltd and Edwards [2006] WASC 45
Willshee v Westcourt Ltd [2008] WASC 18

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicant sought leave to review a number of aspects of the decisionmaking by the Building Disputes Tribunal regarding complaints she made against the respondent, a builder who performed building works to the applicant's house. She submitted that the Building Disputes Tribunal made various errors in awarding costs against her. She claimed the Building Disputes Tribunal was wrong to, first, hear, and to dismiss her complaint of defective work in relation to a verandah constructed over an existing soakwell. Finally, she contended the Building Disputes Tribunal also erred by dismissing a complaint concerning the respondent's failure to render the rear wall as the building contract provided.
In relation to each of the two substantive alleged failures, the applicant raised preliminary issues predicated upon there having been an order to remedy made by a registrar, which, the applicant said, could only be overturned given certain conditions. In any event, she claimed no proper notice of the intent of the Building Disputes Tribunal to deal with those matters was given and the applicant was denied a proper opportunity to be heard in relation to them. The State Administrative Tribunal (Tribunal) considered the law and the facts in relation to these claims and on so doing it was not satisfied that leave was justified.
Regarding the costs issue, the applicant's claim that she was denied procedural fairness in two respects was rejected on the facts, the Tribunal finding the applicant was given…

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.

Continue reading Seow and Pillinger

Details

AGLC: Seow and Pillinger [2008] WASAT 308
Case: [2008] WASAT 308
Decision Date: 24 DECEMBER 2008

CaseChat Overview and Summary

The applicants, Seow and Pillinger, sought leave to review decisions made by the Building Disputes Tribunal. The disputes involved claims related to soakwell-related issues, failure to render claims, and costs. The State Administrative Tribunal was the court tasked with considering the applicants' request for review.

The primary legal issues before the court were whether the applicants were denied procedural fairness, whether the circumstances warranted intervention in the costs decisions, and whether any errors were made in dismissing the failure to render claims. Additionally, the court had to consider whether an invitation to reconsider under section 31 of the State Administrative Tribunal Act 2004 (WA) was appropriate.

In its decision, the Tribunal found that the application for leave to review the Building Disputes Tribunal's decisions on costs, soakwell-related claims, and failure to render claims would be adjourned. The court identified specific aspects of the decisions that would be subject to review, as outlined in the Tribunal's reasons for decision. The remaining parts of the application for leave were dismissed. The Tribunal concluded that the applicants had not demonstrated a sufficient basis for the review of the decisions in question.

The Tribunal made several orders, including adjourning the application for leave to review the Building Disputes Tribunal's decisions on costs, soakwell-related claims, and failure to render claims. The orders were limited to the specific aspects identified in the Tribunal's reasons for decision. The application for leave was otherwise dismissed.

Orders

Orders of the court

For the above reasons, the Tribunal orders that: 1. The application for leave to review the decision of the Building Disputes Tribunal on costs made 15 May 2008, limited to the extent identified by this Tribunal's reasons for decision, is adjourned in accordance with order 7 below; 2. The application for leave to review the decision of the Building Disputes Tribunal on the soakwell*related claims, limited to the extent identified by this Tribunal's reasons for decision, is adjourned in accordance with order 7 below; 3. The application for leave to review the decision of the Building Disputes Tribunal made 24 July 2007 to dismiss the failure to render claims, limited to the extent identified by this Tribunal's reasons for decision, is adjourned in accordance with order 7 below; 4. The application for leave is otherwise dismissed;

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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