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SURI and BEYOND BUILDERS PTY LTD

SURI and BEYOND BUILDERS PTY LTD

Case [2024] WASAT 20 26 March 2024

Civil Litigation & Procedure

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JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   SURI and BEYOND BUILDERS PTY LTD [2024] WASAT 20
MEMBER:   MR E CADE, MEMBER
HEARD:   19 FEBRUARY 2024
DELIVERED          :   26 MARCH 2024
FILE NO/S:   CC 784 of 2023
BETWEEN:   HARISH KUMAR SURI
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 owner 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 Act 2011 (WA), s 34
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5, s 5(1), s 5(2), s 6(3)(b), s 7(1)(a), s 11(1)(c), s 12, s 17, s 17(a)(i), s 38, s 41, s 41(2), 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 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 13, s 17, s 17(a), 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

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	In Person

Solicitors:

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 Construction Pty Ltd [2014] WASAT 38
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
Lampman and Afra Constructions Pty Ltd [2014] WASAT 27
Lee v Lawfirst Pty Ltd [No 2] [2023] WASCA 166
Owners of Island Apartments Strata Plan 52597 and Pindan Pty Ltd [No 2] [2018] WASAT 2
Vernon v Ashmy Pty Ltd WADC (unreported 23 January 1997, Library No BC9740021
Vitte and Studio 8 Builders & Designers Pty Ltd [2013] WASAT 43
Waldron and Afra Construction Pty Ltd [2013] WASAT 207
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 applicant to the Building Commissioner pursuant to s 5(2) of the Building Services (Complaint Resolution and Administration)…

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 SURI and BEYOND BUILDERS PTY LTD

Details

AGLC: SURI and BEYOND BUILDERS PTY LTD [2024] WASAT 20
Case: [2024] WASAT 20
Decision Date: 26 MARCH 2024

CaseChat Overview and Summary

In the Supreme Court of Queensland, Suri, the owner of a residential property, lodged a complaint against Beyond Builders Pty Ltd regarding a home building contract. The dispute centred on several issues, including the non-payment of a stage progress payment, the validity of a price variation claimed by the builder, and the extent to which an order requiring the builder to achieve practical completion constituted an order for specified work. Additionally, Suri sought damages for the delay in completing the home, which included emotional harm, disappointment, and distress. The court was required to determine whether the stage progress payment was not payable and should be repaid by the builder, the validity of the price variation, the interpretation of the term "lock-up stage," and the scope of damages for delay.

The court began by examining the home building contract, which specified that a stage progress payment would only be payable if the owner had completed their obligations under the contract. Given that Suri had not fulfilled their obligations, the court ruled that the stage progress payment was not payable and should be repaid by the builder. Regarding the price variation, the court found that the builder had failed to provide the required evidence to substantiate the claimed variation, resulting in the disallowance of the price variation. The court then addressed the meaning of the "lock-up stage," determining that it referred to the stage when the owner could occupy the property, but not necessarily when all work was completed. Finally, the court assessed the damages for delay, concluding that while emotional harm, disappointment, and distress could be considered, the award of damages rested within the court's discretion.

In light of the above, the court ordered Beyond Builders Pty Ltd to repay the stage progress payment to Suri, disallowed the price variation, and clarified the meaning of the "lock-up stage" in the home building contract. The court also reserved its discretion regarding the award of damages for delay, acknowledging that such damages could include emotional harm, disappointment, and distress. This decision underscores the importance of both parties fulfilling their contractual obligations and the court's role in ensuring that home building contracts are interpreted and enforced fairly.

Orders