Tangent Nominees Pty Ltd and Edwards & Anor
[2006] WASAT 243
•22 AUGUST 2006
TANGENT NOMINEES PTY LTD and EDWARDS & ANOR [2006] WASAT 243
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 243 | |
| BUILDERS' REGISTRATION ACT 1939 (WA) | |||
| Case No: | VR:184/2005 | 16 JUNE 2006 | |
| Coram: | MR C RAYMOND (SENIOR MEMBER) DR B DE VILLIERS (MEMBER) | 22/08/06 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Application granted | ||
| B | |||
| PDF Version |
| Parties: | TANGENT NOMINEES PTY LTD GP EDWARDS EM EDWARDS |
Catchwords: | Builders' registration Preliminary notice Form and substance of preliminary notice Failure to comply with preliminary notice Jurisdictional error |
Legislation: | Builders' Registration Act 1939 (WA), s 12A, s 12A(2), s 12A(3), s 12A(3a), s 41(2) Home Building Contracts Act 1991 (WA), s 17(1)(i), s 17(2), s 17(3), s 17(3a) Interpretation Act 1984 (WA), s 18, s 63, s 74 State Administrative Tribunal Act 2004 (WA), s 87 Workers' Compensation and Rehabilitation Act 1981 (WA), s 93D(5) Workers' Compensation and Rehabilitation Regulations 1982 (WA), reg 19J |
Case References: | Craig v State of South Australia (1995) 131 ALR 595 R v Thomas; Ex parte Sheldons Consolidated Pty Ltd [1982] VR 617 Re Monger; Ex Parte Cook's Construction Pty Ltd [2004] WASCA 165 Tangent Nominees Pty Ltd and Edwards & Anor [2005] WASAT 119 Tangent Nominees Pty Ltd v Edwards & Anor [2006] WASC 45 Nil |
Orders | 1. The decision of the Building Disputes Tribunal dated 25 February 2005 is set aside.,2. Subject to the applicant, on or before 5 September 2006, filing with the Tribunal, and serving on the respondents:,(a) a bill of costs;,(b) an affidavit attesting to the basis on which costs have been included in the bill of costs and providing any relevant factual support for the application;,(c) a written outline of submissions supporting the application;,the applicant may apply for costs in respect of the proceedings.,3. If the applicant makes application for costs the respondents may on or before 19 September 2006 file a written outline of submissions opposing the application.,4. If the applicant makes application for costs, subsequent to 19 September 2006, the Tribunal shall issue directions as to whether the application shall be determined on the documents, or whether the matter shall be set down for oral submissions, or any other procedures followed as the Tribunal considers fit. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : BUILDERS REGISTRATION ACT 1939 (WA) CITATION : TANGENT NOMINEES PTY LTD and EDWARDS & ANOR [2006] WASAT 243 MEMBER : MR C RAYMOND (SENIOR MEMBER)
- DR B DE VILLIERS (MEMBER)
- Applicant
AND
GP EDWARDS
EM EDWARDS
Respondents
Catchwords:
Builders' registration Preliminary notice Form and substance of preliminary notice Failure to comply with preliminary notice Jurisdictional error
Legislation:
Builders' Registration Act 1939 (WA), s 12A, s 12A(2), s 12A(3), s 12A(3a), s 41(2)
Home Building Contracts Act 1991 (WA), s 17(1)(i), s 17(2), s 17(3), s 17(3a)
Interpretation Act 1984 (WA), s 18, s 63, s 74
(Page 2)
State Administrative Tribunal Act 2004 (WA), s 87
Workers' Compensation and Rehabilitation Act 1981 (WA), s 93D(5)
Workers' Compensation and Rehabilitation Regulations 1982 (WA), reg 19J
Result:
Application granted
Category: B
Representation:
Counsel:
Applicant : Mr SO Alteruthemeyer
Respondents : Self-represented
Solicitors:
Applicant : Morgan Alteruthemeyer
Respondents : Self-represented
Case(s) referred to in decision(s):
Craig v State of South Australia (1995) 131 ALR 595
R v Thomas; Ex parte Sheldons Consolidated Pty Ltd [1982] VR 617
Re Monger; Ex Parte Cook's Construction Pty Ltd [2004] WASCA 165
Tangent Nominees Pty Ltd and Edwards & Anor [2005] WASAT 119
Tangent Nominees Pty Ltd v Edwards & Anor [2006] WASC 45
Case(s) also cited:
Nil
(Page 3)
Summary of the Tribunal's decision
1 The applicant sought an order to set aside the decision of the Building Disputes Tribunal made on 25 February 2005, on grounds that a jurisdictional error was made, pursuant to leave granted by the State Administrative Tribunal on 12 May 2005. The applicant contends that a preliminary notice was not sent to it before the complaint was lodged with the Building Disputes Tribunal. Further that an email dated 20 September 2004 did not constitute a preliminary notice in form or substance and as a consequence the BDT did not have jurisdiction to hear the matter.
2 The respondents contended that the email dated 20 September 2004 did constitute a preliminary notice and that the BDT had jurisdiction to hear the matter and to make a determination as it did.
3 The Tribunal found that the email did not constitute a preliminary notice and as the giving of such notice was a jurisdictional prerequisite, the BDT committed a jurisdictional error by its acceptance of the complaint. The decision of the BDT was therefore set aside.
Background to application
4 The applicant lodged an application with the State Administrative Tribunal (the Tribunal) on 3 March 2005 to seek four orders, namely leave to review a decision of the Building Disputes Tribunal (BDT) pursuant to s 41(2) of the Builders Registration Act 1939 (WA); an interim order to stay the order to pay made by the BDT; for the decision of the BDT dated 25 February 2005 to be set aside; and an order that the applicant has satisfactorily complied with the BDT's previous order to remedy and that the applicant has discharged its obligations to the respondents in that regard.
5 By order of the Tribunal on 12 May 2006, the application for a stay was refused, but the application for leave was granted in respect of only one of several proposed grounds of review (Tangent Nominees Pty Ltd and Edwards & Anor [2005] WASAT 119). The decision of the Tribunal, insofar as it limited the leave to apply for a review on a single ground, was appealed to the Supreme Court of Western Australia but was upheld by McKechnie J in Tangent Nominees Pty Ltd v Edwards & Anor [2006] WASC 45. The matter therefore proceeded to a hearing of the review application on that ground, being "that the Building Disputes
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- Tribunal acted without jurisdiction by reason of the respondents' failure to provide a preliminary notice".
Preliminary Notice
6 The respondents relied on an email sent by the respondents to the applicant on 20 September 2004 as constituting a "Preliminary Notice" pursuant to s 12A(2) of the Builders Registration Act 1939 (the BR Act) and s 17(3) of the Home Building Contracts Act 1991 (WA) (the HBC Act), which are in very similar terms. As the complaint made by the respondents to the BDT was in part contractual for damages for delay in completion, and in part in respect of faulty or unsatisfactory building work, it was necessary to give notice in compliance with both the HBC and the BR Acts. This is because by virtue of s 17(1)(i) of the HBC Act an owner can only make an application to the BDT in respect of a claim for breach of contract, if the breach is not one in respect of which an order may be made under s 12A of the BR Act.
7 Section 12A(2) of the BR Act requires as follows: "A complaint under subsection (1) or (1a) cannot be made before the complainant has given to the other party a preliminary notice under subsection (3)".
8 Subsection (3) determines:
"A preliminary notice is a notice in writing in the prescribed form setting out the matters of which the intending complainant complains and calling on the other party to –
(a) rectify them; or
(b) otherwise attempt to settle any matters that are in dispute." (Tribunal emphasis)
9 Section 17(2) of the HBC Act requires as follows:
"An application under subsection (1) cannot be made –
(a) before the applicant has given to the other party a preliminary notice under subsection (3); or
(b) after the expiry of 3 years from the time when the cause of action arose."
10 The complaining party is required by the BR Act and the HBC Act to do the following when a complaint is lodged with the BDT: "A copy of
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- the preliminary notice is to be given to the Disputes Tribunal at the time a complaint is made under subsection (1) or 1(a)". Section 12A(3a) the BR Act. Section 17(3a) of the HBC Act is in identical terms.
Summary of Facts
11 The facts in regard to the question of preliminary notice can be summarised as follows.
12 The respondents sent an email on 20 September 2004 to Mr Brett Garrett, a representative of the applicant, in regard to complaints they had concerning the work being carried out at Lot 20 Pebble Bush Drive, Canning Vale. Mr Garrett was the General Manager Construction for the Summit Homes Group. Mr Joseph Lieberfreund, Finance Manager, confirmed per affidavit, dated 23 June 2006, on behalf of the applicant, that the email had been received.
13 The full text of the email is as follows:
"Brett Garrett
Regarding the work carried out at Lot 20 Pebble Bush Drive, Canningvale.
We are sending a complaint form to Building Registration Board regarding the below mentioned work.
1: We do not accept that the cupboards throughout the house are as displayed are are (sic) not accepting them.
2: The grano under the alfresco is not finished to satisfaction and we do not agree that capping it is (sic) the answer.
3: The door between the garage and the passage is to be replaced with a solid door with the same design as the internal doors specified in the contract.
Thank you
Geoffrey and Elizabeth Edwards" (Tribunal emphasis)
14 Mr Garrett responded by letter dated 1 October 2004 to the email of 20 September 2004 and what he called "our recent discussions". In the opening paragraph of his letter he said as follows: "To assist in the process of resolving the points raised I will deal with each of them individually to see if we can reach a conclusion which you are happy with" (Tribunal emphasis). He went on to suggest ways to resolve the complaints raised by the respondents.
(Page 6)
15 In regard to the "cabinetwork" he concluded "(I)n an attempt to show we are keen to bring this matter to a conclusion we are prepared to make an ex-gratia offer to supply the paint required to paint the walls in your home" (Tribunal emphasis).
16 In regard to the "grano to alfresco" he put a proposal to the respondents that "we would like to offer to supply the material to allow you to install the reeded timber deck you indicated you will undertake to do at a future date" (Tribunal emphasis).
17 In regard to the "access door" he suggested that "we are prepared to supply and install a new door with the routered design as per your internal doors to finalise this matter" (Tribunal emphasis).
18 In regard to the "Floor Tiling Variation" which was not mentioned in the email, Mr Garrett offered $770 to settle the matter.
19 After having set out the applicant's proposal to the issues raised by the respondents, Mr Garrett summarised:
"We hope the above helps outline that our intent is to deliver you a good quality product and we are keen to assist in achieving this without having to go to the Builders Registration Board (B.R.B.). If you elect to have the matter assesses by the B.R.B. we will be seeking an extension of time to complete your contract…" (Tribunal emphasis)
20 The respondents lodged a complaint with the Builders' Registration Board on 8 October 2004 (complaint 0.15248). The complaint referred to the above items of alleged unsatisfactory building work and also raised the delay in completion and sought as compensation their "cost of renting and interest to mortgage".
21 The respondents sent another letter to the applicant on 31 January 2005.
22 It was correctly conceded by the respondents that a letter of 31 January 2005, on which they originally relied could not constitute a "preliminary notice" since it was sent after the complaint had been lodged.
Contentions
23 Mr Edwards contended in his written submission that the email of 20 September 2004 complied with the provisions of subsection (3) in that it set out their concerns and also put the applicant on notice that an
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- application will be lodged with the BDT. The email should therefore be regarded as a preliminary notice which in turn activates the jurisdiction of the BDT.
24 Mr Alteruthemeyer, for the applicants, contended that the email of 20 September 2004 did not constitute a preliminary notice and that the BDT therefore had no jurisdiction to deal with the complaint. According to Mr Alteruthemeyer, the email did not call upon the builder to rectify matters raised or to settle issues in dispute. It merely put the builder on notice that a complaint will be lodged with the BDT.
25 Mr Alteruthemeyer acknowledged that in accordance with s 74 of the Interpretation Act 1984 (WA) the non compliance with a form prescribed under a written law is not necessarily fatal to the notification provided that the substance required by the form has been complied with. He contended, however, that the email failed not only in form but also in substance in that it did not comply with the requirements of a preliminary notice as set out in the BR Act or the HBC Act. The BDT was therefore in jurisdictional error to allow the complaint to proceed.
Consideration
26 The question whether the email of 20 September 2004 is a preliminary notice as required by the BR Act and the HBC Act must be determined against the framework of the respective statutes, the Interpretation Act 1984 and decisions of the courts in regard to such threshold issues.
27 Section 12A(3) of the BR Act and s 17(3) of the HBC Act require from an aggrieved person not only to put a builder on notice of their concerns, but to list the concerns and to call upon the builder to rectify the work or to settle the matter in another appropriate way. The intent of the legislation is clearly to require a complainant to give the other party an opportunity to settle a dispute prior to a complaint being lodged with the BDT. The words highlighted in the respective sub-sections quoted above such as "intending Complainant"who"complains" about something and "calls" upon the other party totake certain action before an actual complaint is lodged with the BDT, emphasise the preventative intent of the sub-section. The logic of a scheme to encourage settlement of disputes is obvious – it prevents the BDT from being flooded with complaints that could otherwise be dealt with between parties. It is only those matters that cannot be resolved that require the intervention of the BDT.
(Page 8)
28 The BR Act and the HBC Act are therefore clear in its wording: It is only after a builder had been put on preliminary notice of a complaint that the next step can be taken by the complainant by lodging a complaint with the BDT.
29 The standard Complaint Form provided to complainants by the BDT draws their attention to the fact that "legislation provides that a complaint cannot be made before the complainant has given the other party a 'preliminary notice'". The complaining party is required by the BR Act and the HBC Act to also lodge with the BDT a copy of the preliminary notice "at the time a complaint is made under subsection (1) or 1(a)" (Tribunal emphasis). Section 12A(3) BR Act. Section 17(3a) of the HBC Act is identical.
30 The legislation anticipates that following the preliminary notice, a complainant will consider the reaction of the builder prior to taking the next step of lodging a complaint. "Preliminary" can be defined as "preceding and leading to the main matter". (Macquarie Concise Dictionary (revised 3 ed) Macquarie, Sydney, 2004).
31 Although the standard Complaint Form does not provide explicitly for the Preliminary Notice to be attached to the Form, it is a specific statutory requirement that the Preliminary Notice is to accompany the application. It is obvious that the purpose of enclosing the Preliminary Notice to the Complaint Form is to assist the BDT to ensure that the requirements of the Act have been complied with to activate the jurisdiction of the BDT.
32 Regardless that the BR Act and HBC Act do not spell out in detail why this form of words were chosen, it is clear that the sub-sections encourage parties to settle as many as possible issues before the BDT is called upon to resolve a complaint. The Preliminary Notice is therefore not merely a formality, it must identify the shortcomings in the building works, or the contractual issues, as the case may be, call upon the builder to rectify the works or to settle the dispute in another way.
33 This interpretation is consistent with s 18 of the Interpretation Act 1984 which requires from the Tribunal to interpret a statute in a manner that "would promote the purpose or object underlying the written law (whether that purpose of object is expressly stated in the written law or not)". It is apparent from the wording of s 12A(3) of the BR Act and s 17(3) of the HBC Act that Parliament intended that the parties make some attempt to resolve the dispute prior to a complaint being referred to
(Page 9)
- the BDT. In such a way the resources of the BDT are not unnecessarily taken up with claims which the parties are capable of resolving themselves. There is an obvious public interest in ensuring that the ability of the BDT to deal with complaints as efficiently as its resources will allow should not be compromised, by having to deal with unnecessary claims.
34 The Tribunal therefore accepts that before a complaint can be lodged with the BDT, a preliminary notice must be provided to the builder. It is incumbent on the BDT upon receipt of a Complaint, to ensure that the complainant has complied with the requirement of a preliminary notice.
35 The respondents must therefore satisfy the Tribunal that the email of 20 September 2004 constituted a "preliminary notice". If they fail in that regard, it will be necessary to determine the effects of failure to give a preliminary notice. Section 74 of the Interpretation Act 1984 provides that where a form is prescribed under a written law, "deviations therefrom not materially affecting the substance nor likely to mislead shall not invalidate the form used". In principle an email can therefore comply with the requirements of a preliminary notice provided that it addresses the substance of s 12A(3) of the BR Act and s 17(3) of the HBC Act. But if the email does not comply in substance with the requirement of a preliminary notice, the applicant contends a jurisdictional error occurred when the BDT accepted heard the complaint.
36 The Tribunal was referred to two cases by Mr Alteruthemeyer in support of the applicant's contentions. In R v Thomas; Ex parte Sheldons Consolidated Pty Ltd[1982] VR 617, the Supreme Court of Victoria found that failure by the Chairman of the Industrial Relations Board to comply with a threshold question of "reasonable notice" constituted a jurisdiction error which disqualified the board from commencing proceedings. In Craig v State of South Australia (1995) 131 ALR 595 the Full Court of the High Court held that:
"If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, … there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied…" (page 601)
(Page 10)
37 In the matter of Re Monger; Ex Parte Cook's Construction Pty Ltd [2004] WASCA 165 the WA Supreme Court of Appeal was called upon to consider the implications if a form that had to accompany a claim for workers compensation had not been properly completed. A worker's referral under s 93D(5) of the Workers' Compensation and Rehabilitation Act 1981 (WA) (the WCR Act) is generally referred to as a "Form 22 referral". It takes its name from the form provided by reg 19J of the Workers' Compensation and Rehabilitation Regulations 1982 (WA) for that purpose. In this case the Form 22 referral was lodged by the worker on 18 September 2002. He nominated, as the relevant level of disability, a degree of disability of not less than 30%. The form contains a box inviting a tick if the worker and the employer cannot agree on whether the degree of disability is not less than the relevant level. Another box makes provision for the worker to specify what action was taken on his or her behalf to obtain the employer's agreement. Both boxes were left blank by the worker in this case. That was because there had been no attempt by the worker to obtain the applicant's agreement (the applicant was his employer). The possibility of agreement had not been explored, at all, by the worker with the applicant. Section 93D(5) of the WCR Act was in terms that provided that a claim could be referred to the Director of the Conciliation and Review Directorate if there was a failure to so agree.
38 Steytler J found that:
"The inability to agree provided for by s 93D(5) was described by Murray J (with whom the other members of the Court were in agreement) in Re Monger; Ex parte Velsberry Pty Ltd [2003] WASCA 9 at [38] as a 'jurisdictional prerequisite'. In my opinion, it was rightly so described.
…
It follows that neither of the prerequisites to a valid Form 22 referral provided for by s 93D(5) and s 93D(6) of the Act was satisfied, with the consequence that the referral was invalid and could not lawfully be acted upon by the Director or Acting Director…"
39 The requirement of a preliminary notice to be issued pursuant to s 12A(3) of the BR Act or s 17(3) of the HBC Act priorto an application being made to the BDT, is an "essential condition of the existence of jurisdiction". Without compliance with the sub-sections the BDT cannot hear a matter.
(Page 11)
40 The email of 20 September 2004 brought several issues of concern to the attention of the respondents, but it appears that the email was intended to put the applicant on notice that a complaint will be lodged with the BDT – the opening sentence of the email put the applicant on notice that "(w)e are sending a complaint form to the Building Registration Board regarding the below mentioned work". The email was therefore not drafted as a "preliminary" notice. The builder was not called upon to rectify or settle the complaint. The substance of the email clearly does not comply with the requirements of a preliminary notice as provided for in s 12A(3) of the BR Act.
41 As the email made no reference to the contractual delay claim, there is no compliance to any degree with the requirements of s 17(3) of the HBC Act.
Finding
42 It follows from the above that a jurisdictional error occurred when the Building Disputes Tribunal accepted the complaint and that its decision of 25 February 2005 must be set aside.
Orders
43 The question of legal costs was not raised before the Tribunal. We will allow the applicant a limited time within which to make any application it may be advised to make, but we point to the starting position under s 87 of the State Administrative Tribunal Act 2004 (WA) that each party bear their own costs, so that we will need to be persuaded that it is appropriate to make any order given the circumstances and history of this matter.
44 The Tribunal orders:
1. The decision of the Building Disputes Tribunal dated 25 February 2005 is set aside.
2. Subject to the applicant, on or before 5 September 2006, filing with the Tribunal, and serving on the respondents:
(a) a bill of costs;
(b) an affidavit attesting to the basis on which costs have been included in the bill of costs and providing any relevant factual support for the application;
- (c) a written outline of submissions supporting the application;
the applicant may apply for costs in respect of the proceedings.
- 3. If the applicant makes application for costs the respondents may on or before 19 September 2006 file a written outline of submissions opposing the application.
4. If the applicant makes application for costs, subsequent to 19 September 2006, the Tribunal shall issue directions as to whether the application shall be determined on the documents, or whether the matter shall be set down for oral submissions, or any other procedures followed as the Tribunal considers fit.
I certify that this and the preceding [44] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR C RAYMOND, SENIOR MEMBER
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