Shami and Teo - [2017] WASAT 73

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

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

CITATION: SHAMI and TEO [2017] WASAT 73

MEMBER: MR D AITKEN (SENIOR MEMBER)
MR P PINDER (SENIOR SESSIONAL MEMBER)

HEARD: 12 TO 13 OCTOBER 2016 AND 2 FEBRUARY 2017

DELIVERED : 17 MAY 2017

FILE NO/S: CC 886 of 2016

BETWEEN: BASEL SHAMI
Applicant
AND
CHIANG HOWE TEO
First Respondent
LEONARDO FARINOLA
Second Respondent

Catchwords:

Proper construction of phrase 'carried out' in s 36(1), s 37(1) and s 38(1) of Building Services (Complaint Resolution and Administration) Act 2011 (WA) Review of building remedy order made by Building Commissioner Whether person who did tiling work as part of completion of dwelling by an owner was the person who 'carried out' that tiling work

Legislation:

Builders' Registration Act 1939 (WA), s 12A
Building Act 2011 (WA), s 51(1)
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(1), s 5(2), s 11(1)(d), s 15(1), s 36, s 36(1), s 37(1), s 38(1), s 57(1)(c), s 85, s 86, s 86(l)(ii), s 88, s 88(1)
Building Services (Complaint Resolution and Administration) Bill 2010 (WA)
Building Services (Complaint Resolution and Administration) Regulations 2011 (WA), reg 4, reg 5, reg 5A
Building Services (Registration) Act 2011 (WA)
Home Building Contracts Act 1991 (WA)
State Administrative Tribunal Act 2004 (WA), s 27, s 29(3)
Water Services Licensing Act 1995 (WA)

Result:

Building remedy order set aside

Summary of Tribunal's decision:

In response to a complaint made by the first respondent, the Building Commissioner made a building remedy order against the applicant in respect of tiling work done by the applicant.
The tiling work was part of the construction of a new dwelling in circumstances where the second respondent was the registered builder who held the building licence, but only constructed the dwelling to lockup stage. The owner had arranged for all the building work after that stage to complete the construction of the dwelling and subsequently sold the dwelling to the first respondent.
The Tribunal decided to determine, as a preliminary issue, whether either the applicant or the second respondent had carried out a regulated building service for the purposes of s 37(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), in respect of the tiling and associated waterproofing work which was the subject of the complaint.
To determine the preliminary issue the Tribunal needed to decide the proper construction of the phrase 'carried out' in s 36(1) and s 37(1) of the Act.
The Tribunal decided that the proper construction of the phrase 'carried out' for the purposes of s 36(1), s 37(1) and s 38(1) of the Act (which all contain that phrase) is that it is the entirety of the building work which is carried out (which could be described as 'the building project') of which the work the subject of a building services complaint forms part, not the components of the building project.
Accordingly, the Tribunal decided that it…

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: [2017] WASAT 73
Decision Date: 17 MAY 2017

CaseChat Overview and Summary

Shami and Teo were involved in a legal dispute concerning the proper interpretation of the phrase 'carried out' within sections 36(1), 37(1), and 38(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA). The case before the court was about whether the individual who performed the tiling work as part of the completion of a dwelling by the owner was the person who 'carried out' that tiling work, a question that arose in the context of a building remedy order made by the Building Commissioner. The dispute required the court to determine the legal issues surrounding the interpretation of 'carried out' and its implications for liability under the Act.

The legal issues at the core of the case were the proper construction of the phrase 'carried out' within the relevant sections of the Act and its application to determine who was responsible for the tiling work in question. The court needed to address whether the owner, who had engaged a tiler to complete the work, was the person who 'carried out' the work, or if the tiler himself was the one who carried out the work. This interpretation was crucial for establishing the proper party to be held accountable under the Act. The court was tasked with applying the rules of statutory interpretation to the language of the Act, viewing it as a whole and considering its purpose.

The court undertook the task of statutory interpretation by examining the text of the relevant provisions in the context of the Act as a whole and its purpose. The court found that the language of the Act, when viewed in the context of its predecessor legislation, indicated that a builder is responsible for faulty workmanship carried out by subcontractors. The court considered the similarity between the language of the repealed provision and the current Act, suggesting an intended operation in a similar manner. The explanatory memorandum was also considered to identify the purpose of the provisions, and a construction that promoted that purpose was preferred. The court concluded that the proper construction of 'carried out' meant that the owner, who engaged the tiler, was the person who carried out the work.

The final orders of the court were not explicitly detailed in the provided text, but it was established that the owner, by engaging the tiler, was deemed to be the person who carried out the tiling work. This interpretation aligned with the purpose of the Act to hold the person responsible for the building service complaint accountable. The court's decision underscored the importance of statutory interpretation in understanding the responsibilities and liabilities under the Building Services (Complaint Resolution and Administration) Act 2011 (WA).

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

In Laing O'Rourke Australia Construction Pty Ltd v Samsung C & T Corporation [2015] WASC 237, Mitchell J at [99] [100] stated the task of statutory construction to be as follows:… The proper construction of the relevant statute is 'reached by the application of rules of interpretation accepted by all arms of government in the system of representative democracy'.Those rules require primary attention to be directed to the text of the relevant provisions. There must be regard to the language of the statute viewed as a whole, considered in its context. An important part of that context will be the purpose of the legislation, ascertained from what the legislation says (rather than any assumption about the desired or desirable reach or operation of the relevant provisions). Once the purpose of the legislation is established, a construction that would promote that purpose shall be preferred to a construction that would not do so.(Footnotes omitted) The Tribunal will undertake the task of construing the phrase 'carried out' in s 36(1) and s 37(1) of the BSCRA Act by considering the text of those subsections in the context of the Act viewed as a whole and its purpose, noting that a construction that would promote that purpose is to be preferred to a construction that would not do so. As has already been stated, the provisions of s 37(1) and s 38(1) of the BSCRA Act are similar. They give the Building Commissioner and the Tribunal respectively the power to make a building remedy order in accordance with s 36(1) of the Act if the regulated building service that is the subject of a building service complaint has not been carried out in a proper and proficient manner or is faulty or unsatisfactory. The words 'carried out' appear in each of those subsections. In Diploma Construction (WA) Pty Ltd v South Central WA Pty Ltd [2015] WASC 289 (Diploma Construction), Mitchell J, in the course of considering the proper construction of s 38(1) of the BSCRA Act, referred to the case of Bradshaw v McGuire (unreported, WASC, Library No 6260, 30 April 1986) (Bradshaw) and made the following relevant comments:…45Prior to the enactment of the [BSCRA Act], complaints about unsatisfactory building work were the subject of s 12A of the [Builders' Registration Act]. Section 12A enabled a complaint to be made that 'any building work has not been carried out in a proper and workmanlike manner by reason that the building work is faulty or unsatisfactory'. When a Disputes Tribunal (and at an earlier time, a Board) was satisfied of this matter under s 12A(1) of the [Builders' Registration Act], it could order the person who carried out the work to remedy the faulty or unsatisfactory building work.…47The operation of s 12A(1) of the Builders' Registration Act, as it stood in 1986, was considered by a Full Court comprised of Burt CJ, Wallace and Pigeon JJ in [Bradshaw]. ……50Wallace J observed:… a builder is responsible to the building owner for faulty workmanship carried out by subcontractors … I agree with what Pidgeon J had to say thereon in Shaw v McLeod. (citation omitted)51Pidgeon J said:… It would, in my view, be an erosion of what the legislature intended by s 12A for a builder to escape the jurisdiction of the Board by submitting that the work complained of was not within the builder's specialty and had been done by a specialized subcontractor. …52In Bradshaw … [the] argument that a builder does not 'carry out' work for which he engages a contractor was also rejected.53The similarity between the language of s 12A(1) of the Builders' Registration Act and s 38(1) of the [BSCRA Act] strongly suggests that the substituted provision is intended to operate in a similar manner to that established for the repealed provision. ……55… Regard may be had to the explanatory memorandum to identify the purpose of the provisions, and a construction which promotes that purpose preferred, pursuant to s 18 and s 19 of the Interpretation Act 1984 (WA).