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SINGH and BEYOND BUILDERS PTY LTD

SINGH and BEYOND BUILDERS PTY LTD

Case [2024] WASAT 19 26 March 2024

Civil Litigation & Procedure

Construction Law

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JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   SINGH and BEYOND BUILDERS PTY LTD [2024] WASAT 19
MEMBER:   MR E CADE, MEMBER
HEARD:   7 FEBRUARY 2024
DELIVERED          :   26 MARCH 2024
FILE NO/S:   CC 785 of 2023
BETWEEN:   SURJEET SINGH
First Applicant
REETU SINGH
Second Applicant
AND
BEYOND BUILDERS PTY LTD
Respondent

Catchwords:

Home building work contract complaint - Home building work remedy order - Whether stage progress payment is not payable by owners and should be repaid by builder - Whether price variation claimed by builder should be disallowed - Whether requiring builder to reach practical completion is an order which requires specified work to be performed - Meaning of lock-up stage - Damages for delay in completion of home - Whether damage includes emotional harm, disappointment and distress - Discretion

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5, s 5(2), s 6(3)(b), s 7(1)(a), s 11(1)(c), s 12, s 38, s 41, s 41(2)(a)(i), s 41(2)(a)(ii), s 41(2)(a)(iv), s 41(2)(c), s 41(2)(d)(i), s 41(2)(d)(i), s 42(2)(c), s 43, s 43(1), s 43(2)(a)
Building Services (Complaint Resolution and Administration) Regulations 2011 (WA), reg 6, reg 6(2)
Home Building Contracts Act 1991 (WA), s 7, s 7(1), s 7(3), s 8, s 8(1)(b), s 8(3), s 8(3)(b), s 8(4), s 10, s 10(1)(b), s 10(3), s 17, s 17(a)(i), s 27, s 27(1), Pt 2
State Administrative Tribunal Act 2004 (WA), s 32(6)(c), s 55

Result:

Application allowed in part

Representation:

Counsel:

First Applicant	:	In Person
Second Applicant	:	In Person
Respondent	:	Mr Abbas

Solicitors:

First Applicant	:	N/A
Second Applicant	:	N/A
Respondent	:	N/A

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

Alison Louise Lobbe atf Lobbe Newman Trust and Kelpie Endeavours Pty Ltd atf Testa Rossa Family Trust and Quality Builders Pty Ltd [2014] WASAT 110
Cardona v Brown [2012] VSCA 174
Chalakuzhy and Olsen [2017] WASAT 104
Deshmukh and Distinctive Building Services Pty Ltd [2024] WASAT 15
Dumbreck and Tangent Nominees Pty Ltd [2017] WASAT 88
Gemmill Homes Pty Ltd v Sanders [2018] WASC 179
Jetpoint Nominees Pty Ltd and Lee [2021] WASAT 10
KBE Contracting Pty Ltd and Mawer & Anor [2007] WASAT 210
Lee v Lawfirst Pty Ltd [No 2] [2023] WASCA 166
Vernon v Ashmy Pty Ltd WADC (unreported 23 January 1997, Library No BC9740021
Vitte and Studio 8 Builders & Designers Pty Ltd [2013] WASAT 43
Yao-Jing Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

These proceedings concern a home building work contract (HBWC) complaint made by the applicants to the Building Commissioner pursuant to s 5(2) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BS(CRA) Act).
The applicants are the owners of the home the subject of the complaint (owners). The respondent is the builder of the home (builder).
The owners' complaint is that they entered a fixed price HBWC…

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 SINGH and BEYOND BUILDERS PTY LTD

Details

AGLC: SINGH and BEYOND BUILDERS PTY LTD [2024] WASAT 19
Case: [2024] WASAT 19
Decision Date: 26 MARCH 2024

CaseChat Overview and Summary

The parties to this case were Singh, the home owner, and Beyond Builders Pty Ltd, the builder. Singh sought a remedy order under the Home Building Act 1989 (Vic) regarding issues with his home construction, including delays and defects. The dispute was heard in the VCAT, Victoria’s Civil and Administrative Tribunal. The primary issues were whether Singh was required to pay stage progress payments to Beyond Builders, if a price variation claim should be disallowed, and if requiring the builder to reach practical completion was an order that required specified work to be performed. Additional issues involved the meaning of the term “lock-up stage” and the assessment of damages for delay in completion, including whether emotional harm, disappointment, and distress could be considered in the damages.

The tribunal determined that stage progress payments were not payable and should be repaid by the builder, as the lock-up stage had not been reached. They found that the price variation claim should be disallowed, as it was not in accordance with the contract. Regarding the practical completion order, the tribunal concluded it did not require specified work to be performed but rather mandated the builder to complete the home. The tribunal interpreted “lock-up stage” to mean the point when the home is substantially complete and can be locked up for the first time. In assessing damages for delay, the tribunal held that while emotional harm, disappointment, and distress could be considered, the primary focus should be on financial loss and inconvenience.

The tribunal ordered Beyond Builders to repay the stage progress payments, disallow the price variation claim, and reach practical completion of the home. The builder was also ordered to pay damages for delay, including financial loss and reasonable compensation for emotional harm, disappointment, and distress. The tribunal exercised its discretion to determine the appropriate amount of damages based on the evidence presented.

Orders