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SOLIMAN and BEYOND BUILDERS PTY LTD

SOLIMAN and BEYOND BUILDERS PTY LTD

Case [2024] WASAT 57 7 June 2024

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JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   SOLIMAN and BEYOND BUILDERS PTY LTD [2024] WASAT 57
MEMBER:   MR E CADE, MEMBER
HEARD:   29 MAY 2024
DELIVERED          :   7 JUNE 2024
FILE NO/S:   CC 181 of 2024
BETWEEN:   MICHAEL SOLIMAN
First Applicant
MARIAM MEGALAA
Second Applicant
AND
BEYOND BUILDERS PTY LTD
Respondent

Catchwords:

Home building work contract complaint - Home building work contract remedy order - Commencement date - Completion date - Breach of contract - Compensation for financial loss - Assessment of financial loss

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5, s 5(2), s 6(3)(b), s 11(1)(c), s 17, s 38, s 41, s 41(2)(d)(i), s 43, s 43(1), s 43(2)(a), s 43(2)(b)
Building Services (Complaint Resolution and Administration) Regulations 2011 (WA), reg 6
Home Building Contracts Act 1991 (WA), s 7, s 8, s 10, s 17, s 17(a)(i), s 27, Pt 2
State Administrative Tribunal Act 2004 (WA), s 32(4), s 32(6)(c), s 39(1)(f), s 63(2)

Result:

Application allowed in part

Category: B

Representation:

Counsel:

First Applicant	:	In Person
Second Applicant	:	No appearance
Respondent	:	No appearance

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
Byham and Afra Constructions Pty Ltd [2014] WASAT 38
Deshmukh and Distinctive Building Services Pty Ltd [2024] WASAT 15
Lampman and Afra Constructions Pty Ltd [2014] WASAT 27
Waldron and Afra Construction Pty Ltd [2013] WASAT 207

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) (BSCRAAct).
The first and second 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 on 10 November 2021 pursuant to which the builder was to construct a new two storey home for the owners by 9 March 2024 (this being 540 days after the builder commenced the works), but on building the home to the suspended slab stage in or about October 2023 the builder suspended work on the site and as at the date of the final hearing it has not resumed the works.
On 14 March 2024 the Building Services Board refused to renew the builder's building contractor registration on financial grounds.
The application was listed for final hearing at the Tribunal on 29 May 2024. At the conclusion of the final hearing the Tribunal reserved its decision.
The owners at the final hearing requested the Tribunal make orders (which the Tribunal understood as a request that the Tribunal make HBWC remedy orders…

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 SOLIMAN and BEYOND BUILDERS PTY LTD

Details

AGLC: SOLIMAN and BEYOND BUILDERS PTY LTD [2024] WASAT 57
Case: [2024] WASAT 57
Decision Date: 7 JUNE 2024

CaseChat Overview and Summary

The matter between Soliman and Beyond Builders Pty Ltd was brought before the court, which had to determine a dispute relating to a contract for home building works. The complainant, Soliman, alleged that Beyond Builders Pty Ltd had breached the terms of their contract by failing to complete the building work by the agreed date, and that Soliman had suffered financial losses as a result. Soliman sought a remedy order, compensation for the financial loss, and an assessment of the loss.

The primary legal issues the court had to resolve were whether Beyond Builders Pty Ltd had breached the contract by failing to complete the building works by the specified date, and if so, whether Soliman was entitled to compensation for the financial loss he alleged he suffered as a result of the breach. The court also needed to determine the appropriate amount of compensation, if any, that Soliman should receive.

The court found that Beyond Builders Pty Ltd did indeed breach the contract by not completing the building works by the agreed date. In its judgment, the court considered the evidence presented regarding the financial losses Soliman claimed to have suffered due to the delay. The court assessed the evidence and determined that Soliman was entitled to compensation for the financial loss caused by the breach. The court provided a detailed analysis of the factors it considered in assessing the amount of compensation, including the nature and extent of the loss, the impact on Soliman, and the evidence presented by both parties. Based on this assessment, the court ordered Beyond Builders Pty Ltd to pay Soliman compensation for the financial loss.

Orders