SLUCHNIAK and 101 RESIDENTIAL PTY LTD
[2023] WASAT 55
•5 JULY 2023
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION: SLUCHNIAK and 101 RESIDENTIAL PTY LTD [2023] WASAT 55
MEMBER: MS C BARTON, MEMBER
HEARD: 27 MARCH 2023 (FINAL SUBMISSIONS FILED ON 17 APRIL 2023)
DELIVERED : 5 JULY 2023
FILE NO/S: CC 1471 of 2022
BETWEEN: DAMON MICHAEL SLUCHNIAK
Applicant
AND
101 RESIDENTIAL PTY LTD
Respondent
Catchwords:
Building service complaint - Review of decision by Building Commissioner to refuse to accept complaint - Limitation period for making complaint - Notice of completion given to permit authority - Whether building work completed when notice of completion received by permit authority - Whether complaint outside the statutory time limit - Whether complaint out of time - Whether complaint time barred
Legislation:
Building Act 2011 (WA), s 3
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s3, s 5, s 5(1), s 6(1), s 6(2), s 7(1), s 7(1)(b), s 7(3)(c), s 57(2)
Building Services (Complaint Resolution and Administration) Regulations 2011 (WA), reg 7(a), reg 7(a)(i), reg 7(a)(ii)
Building Services (Registration) Act 2011 (WA), s 3, s 17, s 18
Evidence Act 1906 (WA)
Home Building Contracts Act 1991 (WA), s 3(1), s 11(2)
State Administrative Tribunal Act 2004 (WA), s 18, s 27, s 27(1), s 29(3), s 32(1), s 32(2)(a), s 32(2)(b)
Result:
Application for review dismissed
Decision of the Building Commissioner affirmed
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | In Person |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
The Owners of 52 Mill Point Road Strata Plan 62152 and Hanssen Pty Ltd [2021] WASAT 102
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Almost a decade ago, the applicant in these review proceedings, Damon Sluchniak (applicant), engaged the respondent, 101 Residential Pty Ltd (respondent), to construct a two-storey dwelling at 65B Tranby Road, Maylands (property).
On 5 August 2022, the applicant lodged complaint BC2022-2652 (complaint) with the Building Commissioner (Commissioner) in respect of a regulated building service carried out by the respondent at the property.
On 16 September 2022, an authorised delegate of the Commissioner refused to accept the complaint on the basis that it was outside the statutory time limit of 6 years from the date of completion of the building work carried out by the respondent.
On 12 October 2022, the applicant commenced proceedings in the Tribunal pursuant to s 57(2) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BS(CRA) Act) seeking a review of the decision made by the Commissioner to refuse to accept the complaint.
The applicant seeks orders from the Tribunal that the complaint is within time and should be allowed to proceed to determination by the Commissioner.[1]
Chronology of events
[1] Hearing book (HB), page 7.
Based on the documents filed by the parties, certain matters concerning historical events are not in dispute. I make the following findings set out in this paragraph in relation to those matters:
1)The parties entered into a building contract dated 13 September 2013 for the respondent to construct a twostorey residential dwelling at the property (building contract).[2] The building contract includes an addendum dated 21 October 2013 that was signed by the parties on 11 November 2013 (addendum).[3]
[2] The building contract is a 'home building work contract' as defined in s 3(1) of the Home Building Contracts Act 1991 (WA) (HBC Act). HB pages 105 to 134.
[3] Respondent's documents filed on 5 April 2023 in accordance with the Tribunal's orders made on 27 March 2023 (Respondent's documents), pages 1 to 16.
2)The City is the relevant permit authority for the purposes of the Building Act 2011 (WA) (Building Act). On 28 March 2014, the City of Bayswater (City) issued a building permit for the building work at the property.[4]
[4] HB, page 157.
3)On 15 May 2015, the respondent issued the applicant with a three-page Practical Completion Certificate (PCC) which was signed by the applicant on the same date. The PCC provides:[5]
[5] HB, pages 135 to 138.
The client agrees that the works are at Practical Completion and other than the Defects Liability Period obligations which continue and subject to the following item/s detailed hereunder being rectified, the terms and conditions of the Contract have been duly performed and carried out.
4)The expression 'Practical Completion' is defined in cl 19 of the building contract as follows (Practical Completion):[6]
[6] This is consistent with the definition of 'practical completion' in s 11(2) of the HBC Act.
'Practical Completion' means when the Works are completed except for any omissions or defects which do not prevent the Works from being reasonably capable of being used for its intended purposes.
5)The expression 'Defects Liability Period' is provided for in item 12 of the Schedule of Particulars to the building contract to be '6 months and 12 months' commencing on the date of Practical Completion.[7]
[7] See building contract, cl 14.
6)The expression 'Works' is referred to in item 2 of the Schedule of Particulars to the building contract as 'New Double Storey Residence'.
7)On 31 July 2015, the City received a BA7 Notice of Completion dated 28 July 2015 advising the respondent had completed the building work at the property (Notice of Completion).[8] The Notice of Completion provides that the date of completion was 26 June 2015.
[8] HB, page 159.
8)On 5 August 2022, the applicant lodged the complaint with the Commissioner. The complaint relates to a regulated building service that the applicant asserts was not carried out by the respondent in a proper and proficient manner or is faulty or unsatisfactory.
9)The complaint comprises four items as follows (complaint items):
(a)External north face side wall to 1st floor pod. This pod wall was structurally damaged on route to site (damaged pod). Water penetrates this wall.
(b)External north face side wall. Rainwater entering building.
(c)External north face side wall. Flashing at base of 1st floor external wall not built-in and not watertight.
(d)External north face side wall. Breakdown of acrylic texture coating to 1st floor pod.
10)On 16 September 2022, the Building & Energy division of the Department of Mines, Industry Regulation and Safety (DMIRS) advised the parties of the Commissioner's decision to refuse to accept the complaint because it was out of time.[9]
11)On 13 January 2023, following orders made by the Tribunal on 6 December 2022, the Commissioner filed a statement of reasons for decision and documents relevant to that decision.
Issues for determination
[9] HB, page 80.
The following issues arise for determination:
1.Had the respondent completed the building work at the property when it gave the Notice of Completion to the City?
2.Is the complaint within the statutory time limit of 6 years from the date of completion of the building work?
The Tribunal's review jurisdiction
If the Tribunal gives leave, a person aggrieved by a decision of the Commissioner to refuse to accept a complaint may apply to the Tribunal for a review of the decision pursuant to s 57(2) of the BS(CRA) Act. As leave was not formally granted at the first directions hearing on 6 December 2023, I will make an order granting leave to the applicant to apply to the Tribunal pursuant to s 57(2) of the BS(CRA) Act to review the Commissioner's decision.
In exercising its review jurisdiction, the Tribunal is to deal with a matter in accordance with the State Administrative Tribunal Act 2004 (WA) (SAT Act) and the BS(CRA) Act (the latter referred to as the 'enabling Act' for the purposes of the Tribunal's review jurisdiction which may modify the operation of the SAT Act in relation to the matter).[10]
[10] SAT Act, s 18.
The Tribunal is to review the Commissioner's decision by way of a hearing de novo for the purposes of producing the correct and preferable decision based on the information and evidence before it.[11]
[11] SAT Act, s 27.
The Tribunal is not bound to apply the Evidence Act 1906 (WA), the rules of evidence, or any practices and procedures of courts of record[12] but is bound by the rules of natural justice unless authorised expressly or by implication to depart from those rules by the SAT Act or the enabling Act.[13]
[12] SAT Act, s 32(2)(a).
[13] SAT Act, s 32(1).
The Tribunal is not limited to the material before the Commissioner as the original decision-maker but may consider new material.[14] The Tribunal is to act according to equity, good conscience, and the substantial merits of the case without regard to technicalities and legal forms.[15] Section 29(3) of the SAT Act confers specific power on the Tribunal to make any order that it considers appropriate, including an order to set aside the original decision, affirm that decision or vary that decision.
[14] SAT Act, s 27(1).
[15] SAT Act, s 32(2)(b).
I will next consider the statutory framework relevant to the time-limit for making a complaint to the Commissioner.
The statutory time-limit for making a complaint
Section 5(1) of the BS(CRA) Act provides that a person may make a complaint to the Commissioner about a regulated building service not being carried out in a proper and proficient manner or being faulty or unsatisfactory. A complaint made under s 5(1) of the BS(CRA) Act is defined as a 'building service complaint'.[16]
[16] BS(CRA) Act, s 3.
A 'regulated building service' is defined in s 3 of the BS(CRA) Act to include a building service carried out by a registered building service provider or an approved owner-builder. Relevantly, a 'registered building service provider' has the meaning given in s 3 of the Building Services (Registration) Act 2011 (WA) (Registration Act), being a building service practitioner or a building service contractor registered under s 17 and s 18 of the Registration Act respectively. A 'building service' includes 'building work' as defined in s 3 of the Building Act being the construction, erection, assembly or placement of a building or an incidental structure (being a structure attached to or incidental to a building).
After receiving a complaint under s 5 of the BS(CRA) Act, the Commissioner (and the Tribunal on a review) must decide whether, and to what extent to accept it, or refuse to accept it.[17] The complaint may be refused on the basis that it was made out of time as referred to in s 6(1) of the BS(CRA) Act.[18]
[17] BS(CRA), s 7(1).
[18] BS(CRA) Act, s 7(3)(c).
Section 6(1) of the BS(CRA) Act provides that '[a] building service complaint is made out of time if the complaint is made more than 6 years after the completion of the regulated building service to which the complaint relates'. The Tribunal does not have power under BS(CRA) Act or the SAT Act to extend the 6-year statutory time limit in s 6(1) of the BS(CRA) Act.[19]
[19] See The Owners of 52 Mill Point Road Strata Plan 62152 and Hanssen Pty Ltd [2021] WASAT 102 at [95].
For the purposes of s 6(1) of the BS(CRA) Act, a regulated building service is taken to be completed:[20]
(a)if the criteria for determining the date of completion for that building service are prescribed — on the date determined in accordance with the criteria;
(b)If paragraph (a) does not apply — on the date on which the building service was last carried out.
[20] BS(CRA) Act, s 6(2).
The criteria that apply when determining the date of completion of a regulated building service are set out in reg 7(a) of the Building Services (Complaint Resolution and Administration) Regulations 2011 (WA) (BS(CRA) Regulations). Relevantly, in the case of building work or demolition work carried out under a building permit or demolition permit:[21]
(i)if, under the Building Act 2011 section 34(1), the responsible person in relation to the permit gives notice of cessation to act as the responsible person to a relevant permit authority, the work, in relation to that person, is completed when the notice is given;
(ii)otherwise, the work is completed when a notice of completion of the work is given to a relevant permit authority under the Building Act 2011 section 33(1).
[21] BS(CRA) Regulations, reg 7(a).
The criterion in reg 7(a)(ii) of the BS(CRA) Regulations applies to the building work in these proceedings because it was carried out under a building permit and no notice of cessation was given to the City for the purposes of reg 7(a)(i) of the BS(CRA) Regulations. Consequently, I find that building work was completed at the property, for the purposes of s 6(1) of the BS(CRA) Act, on the date when the Notice of Completion was given to the City.
Summary of the parties' contentions
It is the applicant's position that the respondent lodged the Notice of Completion with the City prematurely.[22] The applicant says that Practical Completion of the building works did not occur on 26 June 2015 as claimed by the respondent but, rather, the works came to an end in July/August 2016.[23]
[22] HB, page 29; ts 4, 27 March 2023.
[23] HB, page 192.
Because building work was delayed and the due date for completion had not been met, the applicant prepared a two-page handover agreement dated 19 June 2015 which he provided to the respondent (handover agreement).[24] The terms of the handover agreement are limited but it does provide that the 'defects liability period shall commence from the time keys are handed over to the owner'.[25]
[24] HB, page 192; HB page 49.
[25] HB, page 49.
The applicant contends that the handover agreement had the effect that:[26]
1)the respondent would be paid in full and before time on the proviso that it completed all building works as contracted; and
2)the applicant would have access to the dwelling in order to undertake preparatory work prior to occupancy.
[26] HB, page 192.
The handover agreement, which is unsigned, lists the main items of work that were the responsibility of the respondent to complete, which include 'roof goods, flashings etc and make good existing completed works to South elevation where pod sits on brickwork'. It also lists those items of work which were the applicant's responsibility, specifically, the internal painting and timber flooring, and the installation of the driveway, crossover, and entry porch paving.
In addition to the items of work in the handover agreement, the respondent installed stormwater drainage facilities at the property after the stormwater disposal system it had designed was found to be inadequate (drainage works).[27] The applicant says that the drainage works were not completed by the respondent until mid-2016.[28] The applicant further says that the timeline for completion of the building works at the property is supported by the finalisation of the 12month builder's maintenance report on 10 March 2017.[29]
[27] HB, page 55; HB, page 193.
[28] HB, page 193.
[29] HB, page 43.
In relation to the complaint items, the applicant says that the respondent did not complete the remedial work to the damaged pod until after the PCC was issued on 15 May 2015. However, water ingress with respect to the external north face side wall is ongoing (water ingress).[30] Whilst the applicant acknowledged (and signed) the PCC, he took the view that it was a report as to the progress of works at that time not the actual completion of the works.[31] He further says that water ingress is referred to in each site report prepared by the respondent, that is, the PCC, the 6-month maintenance report, and the 12-month maintenance report.
[30] HB, page 194.
[31] HB, page 194.
It is the respondent's position that the dwelling was practically complete when the applicant took possession of the keys, and that the date of completion of building work on the Notice of Completion is correct.[32] The respondent says that the 12-month maintenance items are of no relevance because all contracts have a 6 and/or 12-month inspection to remedy defects.[33] Whilst the respondent acknowledged that it undertook drainage works which were completed on 23 March 2016, it contends that the stormwater disposal system was the responsibility of the applicant under the building contract.[34]
The Tribunal's consideration
[32] ts 6, 27 March 2023.
[33] ts 6, 27 March 2023.
[34] Respondent's documents, page 2.
Section 6(1) of the BS(CRA) provides that '[a] building service complaint is made out of time if the complaint is made more than 6 years after the completion of the regulated building service to which the complaint relates'.[35] Relevantly, in the case of building work carried out under a building permit, the work is completed when a notice of completion of the work is given to a relevant permit authority under the Building Act.[36]
[35] BS(CRA) Act, s 6(1).
[36] BS(CRA) Regulations, reg 7(a)(ii).
There is no dispute, and I find, that the building work was carried out at the property under a building permit issued by the City on 28 March 2014.
Consequently, I find that the date of completion of the regulated building service for the purposes of s 6(1) of the BS(CRA) Act is 31 July 2015, being the date when the Notice of Completion was given by the respondent to the City as evidenced by the receipt date of 31 July 2015 stamped on the document. There was no evidence before me that the respondent issued a notice of cessation to act.[37]
[37] See BS(CRA) Regulations, reg 7(a)(i).
Whilst it is not strictly necessary for me to do so, I will next consider whether the building work at the property was completed when the Notice of Completion was lodged with the City on 31 July 2015.
Had the respondent completed the building work at the property when the Notice of Completion was lodged with the City?
The applicant contends that further building work was carried out at the property after Practical Completion and after the date for completion referred to in the Notice of Completion. The PCC was issued by the respondent and signed by the applicant on 15 May 2015. The Notice of Completion provides that work was completed at the property on 26 June 2015, however, it was not received by the City until 31 July 2015.
Drainage works
It is the applicant's position that drainage works at the property were not completed by the respondent until mid-2016.
The addendum to the building contract refers to 'Stormwater Disposal/Connection' as 'BY OWNER TO SHIRE REQUIREMENTS'. Consequently, I find that the installation of the stormwater disposal system was the responsibility of the applicant.[38] There is no dispute, and I find, that the respondent agreed to undertake the drainage works because the stormwater system it had designed was found to be inadequate for on-site soil conditions.[39]
[38] ts 16, 27 March 2023; Respondent's documents, page 2.
[39] ts 17, 27 March 2023.
Because the respondent was not responsible for the installation of the stormwater system under the terms of the building contract, I find that the drainage works undertaken by it after Practical Completion form part of a new and separate contract with the applicant. Consequently, for the purposes of determining the date of completion of building work at the property under the building contract, it is of no consequence that the drainage works were not completed by the respondent until mid2016.
If I am wrong, and the drainage works constitute a variation to the building contract, I am nevertheless satisfied that the works were carried out by the respondent to remedy a defect in the stormwater system it had designed.
Consequently, for these reasons, it is not material to the determination of these proceedings that the drainage works were completed by the respondent after the Notice of Completion was given to the City.
Minor works
The applicant prepared the handover agreement, dated 19 June 2015, which lists several items of 'minor works' to be addressed by the respondent that did not affect the occupancy of the dwelling. The items of 'minor works' to be addressed by the respondent include, for example, confirming the correct operation of electrical and air conditioning work to all points and to 'make good existing completed works to South elevation where pod sits on brickwork'.[40]
[40] HB, page 49; ts 19, 27 March 2023.
For the purposes of these proceedings, it is unnecessary for me to determine whether the handover agreement is a legally binding contract between the parties. However, on the face of it, the handover agreement supports a finding that the installation of the pod had been completed by 19 June 2015, but that certain remedial work was required in respect of the pod as it relates to the southern elevation of the dwelling. Notably, none of the remedial work referred to in the handover agreement relate to the items that are the subject of the complaint.[41] The complaint items relate to the north face side wall of the dwelling (or northern elevation) and not the southern elevation.
[41] ts 27, 27 March 2023.
The water ingress issues that gave rise to the complaint items are referenced in both the 6-month and 12-month maintenance reports.[42] There is no dispute, and I find, that the works referred to in the 12month maintenance report were completed by the respondent.[43]
[42] HB, page 43 and page 155; ts 24-25, 27 March 2023.
[43] ts 13, 27 March 2023; ts 25, 27 March 2023.
Further, having regard to the date of the handover agreement, I am satisfied that the work required to remedy the pod as it relates to the southern elevation is caught by cl 14 of the building contract because the applicant notified the respondent of the defect shortly after the PCC was issued. There is no dispute, and I find, that the defects liability period in cl 14 of the building contract provides that the respondent must make good, at its cost, any defect in works or materials supplied if the respondent is notified of the defect within 6 months and 12 months after Practical Completion of the building work.[44]
[44] ts 14-15, 27 March 2023.
I further find that all items of 'minor works' which were the responsibility of the respondent under the handover agreement were ultimately completed by the respondent.[45] However, there is insufficient information before me to determine whether the respondent had completed those works before it lodged the Notice of Completion with the City on 31 July 2015.
[45] ts 22, 27 March 2023.
For the purposes of determining whether the complaint was lodged with the Commissioner within the statutory time limit of 6 years, it is unnecessary for me to be satisfied that the respondent completed the building work at the property (including the 'minor works' under the handover agreement) for the reasons that follow.
Is the complaint within the statutory time limit of 6 years from the date of completion of the building work?
Whilst the applicant contends that the Notice of Completion was filed prematurely, the BS(CRA) Regulations prescribe criteria for determining the date of completion for the purposes of s 6(1) of the BS(CRA) Act. Because the criteria are statutorily prescribed, it is not for the Commissioner (or the Tribunal on a review) to look behind the Notice of Completion or undertake a forensic investigation into whether the date of completion for the purposes of the BS(CRA) Act accords with the date of Practical Completion or the date of completion that appears on the Notice of Completion. Such an investigatory task would prove difficult, in any event, because remedial works are commonly carried out by a builder during the defects liability period, after Practical Completion, in accordance with the builder's contractual obligations.
As already stated, the date of completion of the building work for the purposes of s 6(1) of the BS(CRA) Act is 31 July 2015, being the date that the City received the Notice of Completion. It is immaterial whether the minor works or drainage works were completed by the respondent at the time the Notice of Completion was received by the City because the date of completion is determined by applying prescribed statutory criteria.
The applicant lodged its application with the Commissioner on 5 August 2022, which is more than 7 years after the date of completion on 31 July 2015.
For these reasons, I find that the applicant's complaint is outside the statutory time limit of 6 years from the date of completion. Consequently, I will refuse to accept the complaint pursuant to s 7(1)(b) of the BS(CRA) Act and, pursuant to s 29(3) of the SAT Act, I will affirm the decision of the Commissioner made on 16 September 2022.
Conclusion
Pursuant to s 6(1) of the BS(CRA) Act, a building service complaint is made out of time if the complaint is made more than 6 years after the completion of the regulated building service to which the complaint relates. The criteria for determining the date of completion of building work are set out in the BS(CRA) Regulations. Relevantly, reg 7(a)(ii) of the BS(CRA) Regulations provides that, in the case of building work carried out under a building permit, the work is completed when the notice of completion is given to the relevant permit authority.
The City received the respondent's Notice of Completion on 31 July 2015. Consequently, the date of completion of the regulated building service for the purposes of s 6(1) of the BS(CRA) Act is 31 July 2015. Because the BS(CRA) Regulations provide statutory criteria for determining the date of completion of building work, it is unnecessary for me to consider whether the building work at the property was completed at the time that the Notice of Completion was given to the City.
The applicant lodged his application with the Commissioner on 5 August 2022, which is more than 6 years after the date of completion on 31 July 2015.
Accordingly, the correct and preferable decision is to affirm the Commissioner's decision made on 16 September 2022 to refuse to accept the applicant's complaint because it is outside the statutory time limit of 6 years.
Orders
The Tribunal orders:
1.The applicant is given leave to apply to the Tribunal pursuant to s 57(2) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) to review the decision of the Building Commissioner made on 16 September 2022 in relation to complaint BC2022-2652 about a regulated building service at 65B Tranby Road, Maylands.
2.Pursuant to s 29(3)(a) of the State Administrative Tribunal Act 2004 (WA) the decision of the Building Commissioner made on 16 September 2022 to refuse to accept the applicant's complaint BC2022-2652 on the basis that it is outside the statutory time limit of 6 years from the date of completion of the building work is affirmed.
3.The application for review is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS C BARTON, MEMBER
5 JULY 2023
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