SIMPSON and CARR
[2012] WASAT 191
•31 AUGUST 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: BUILDERS' REGISTRATION ACT 1939 (WA)
CITATION: SIMPSON and CARR [2012] WASAT 191
MEMBER: MR C RAYMOND (SENIOR MEMBER)
HEARD: 31 AUGUST 2012
DELIVERED : ORAL REASONS DELIVERD ON 31 AUGUST 2012
PUBLISHED : 12 SEPTEMBER 2012
FILE NO/S: CC 959 of 2012
BETWEEN: RICHARD SIMPSON
Applicant
AND
TANYA CARR
STUART CARR
Respondents
Catchwords:
Builders' Registration Act 1939 (WA) Application for leave to review Turns on own facts
Legislation:
Builders' Registration Act 1939 (WA), s 41, s 41(1)
Building Services (Complaint Resolution and Administration) Act 2011 (WA)
Result:
Application refused
Category: B
Representation:
Counsel:
Applicant: In person
Respondents : In person
Solicitors:
Applicant: N/A
Respondents : N/A
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant applied for leave to review a decision of the Building Disputes Tribunal under s 41 of the Builders' Registration Act 1939 (WA), which continued to apply under the transitional provisions of the Building Services (Complaint Resolution and Administration) Act 2011 (WA).
The Tribunal examined each of the grounds relied upon by the applicant and found that:
a) the applicant had acted contrary to an order to remedy by attempting to remedy an aspect of the work in a manner inconsistent with the drawings which formed part of the approved building licence, so that the respondents were justified in not allowing the applicant to proceed with the remedial work;
b)it was open on the evidence for the Building Disputes Tribunal to prefer the evidence of the respondents' expert engineer witness to that of the applicant; and
c)the unavailability of the Builders' Registration Board inspector had no affect on the proceedings as the inspector's report was not challenged by either party and was in evidence.
As no error on the part of the Building Disputes Tribunal had been demonstrated and there was no doubt about the correctness of the decision, leave to review the decision was refused.
Introduction
This matter was heard on 31 August 2012, and oral reasons for decision were delivered on the same day. These reasons have been prepared from the transcript with only minor editing to correct typographical errors and to improve the expression of the reasons in written form.
The applicant has applied to the Tribunal under s 41(1) of the Builders' Registration Act 1939 (WA) (BR Act) to review a decision of the Building Disputes Tribunal. This is a matter in which the Building Disputes Tribunal has made a decision in a current proceeding within the meaning of that term under the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act). Under the transitional provisions of that legislation, a review of the Building Disputes Tribunal's decision continues to be conducted in accordance with the provisions of the BR Act as if it had not been repealed.
The application criteria
In order to be entitled to leave to review the decision, the applicant needs to establish that the decision of the Building Disputes Tribunal is wrong or attended with sufficient doubt, such that there would be a substantial injustice if the opportunity to review the decision was not granted, although the Tribunal does have a broad discretion outside those specific criteria.
Consideration of the grounds for proposed review
The first basis on which the applicant seeks to review the decision is, in effect, that the evidence given by an engineer engaged by the respondents was false in a number of respects. Those respects are outlined in para 1 of the applicant's 'Outline of Submissions'.
Although not clearly raised in the submissions, it is evident that the applicant contends that he should have been given the opportunity to go back on site to carry out the remedial work required under an order to remedy made by the Building Disputes Tribunal on 26 September 2011. It is evident from a transcript of the evidence that the applicant had not lodged an application for approval of what he contemplated would become amended plans to cover the work to be done. It is also apparent from the transcript that the applicant wanted to rely on different engineering drawings to those which formed part of the approved building licence application in order to justify that the rafters of the patio in question did not have to be relocated.
The difficulty with that position is that the order to remedy in relation to the relevant provisions was made by consent, and included that the applicant rectify the faulty or unsatisfactory building work referred to in relation to item 20. The reference to item 20 can only be referenced to the Builders' Registration Board's inspection report. It was obvious that when one correlated that report with the order to remedy, it was item 20 of that report to which reference was made. Item 20 refers specifically to the rafters and to the complaint that they do not line up with the posts, creating a weaker joint. The action recommended by the inspector, and which clearly is that which the applicant in the present proceedings was obliged to comply with, was to change the location of the rafters to comply with the structural engineer's recommendations. That can only be referenced to the engineering drawings then in existence and prepared by Mr Hudson.
What the applicant was attempting to do was to provide different engineering drawings to justify not relocating the rafters. The applicant had no justification for not complying with the order to remedy. It is not surprising in those circumstances that the respondents declined to sign the further engineering drawings that had been sent to them, and were not prepared to permit the applicant to carry out work other than in terms of the order to remedy, which required the rafters to be relocated. I find that there was no basis for the general criticism which is implicit in the application, that the order to remedy should not be revoked and substituted by an order to pay, because the applicant was not given an opportunity to carry out the remedial work.
To turn to the specific points raised in the submissions, it is clear from a reading of the transcript that there was considerable exchange between the Tribunal, the expert engineer witness for the respondents, Mr Just, and the applicant. The applicant put on record whenever he disagreed with the evidence from Mr Just. The engineering report prepared by Mr Just is dated 13 April 2012, and the applicant indicated that he received a copy of that report from the respondents approximately two weeks before the hearing, which was on 25 May 2012. The engineering report contained details of various dimensions with which the applicant disagreed. It was therefore obvious to him, or certainly should have been obvious to him, that Mr Just would give evidence consistent with his report on matters with which the applicant disagreed.
The applicant did nothing to put any evidence before the Building Disputes Tribunal on those matters. If he did not have sufficient time to get an independent person to check the various measurements, he could have applied for an adjournment of the matter. There is no suggestion on the record of any such intention. Instead, all the applicant did was to say where he disagreed, and to express what his views were of the measurements. The transcript reflects many issues in relation to which the Building Disputes Tribunal and, in particular, the expert building member of the panel, disagreed with aspects of the applicant's evidence. The Building Disputes Tribunal had to make an assessment of whether or not to accept the evidence of Mr Just or the evidence of the applicant. It chose to prefer the evidence of Mr Just. That was a decision which was clearly open on the evidence. I am not satisfied that any error in that respect is therefore demonstrated.
The other issue raised in the submissions by the applicant is that he submits that his witness, Senior Inspector Aitken of the Builders' Registration Board, did not appear at the hearing, notwithstanding that he had made arrangements through a Building Disputes Tribunal case officer for Mr Aitken to attend. Reference is made in the submissions to that arrangement being confirmed by an email on 15 May 2012. A copy of that email has not been provided, but I assume in favour of the applicant that what he submits in that regard is correct.
However, it is evident from the transcript that the applicant had no real issue with the conclusions contained in Mr Aitken's inspection report. This is apparent at page 99 of the transcript where Mr Simpson makes the point that:
… [t]here [is] no independent … Structerre [a reference to Mr Just's firm] was [not] an independent view. The Builders Tribunal [sic], Mr Aitken was an independent view and that was order to remedy … [indistinct] … and that … I was going to comply to fix ...
There is nothing to indicate any challenge of Mr Aitken's recommendations. In all of those circumstances, I do not think that it could have made any material difference whether Mr Aitken attended or not. Had he attended, he could only have confirmed his report, and that would not have changed the substance of the case and its outcome in any way.
Order
For these reasons an order was made refusing the application for leave to review the decision of the Building Disputes Tribunal.
I certify that this and the preceding [16] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR C RAYMOND, SENIOR MEMBER
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