TEO and PARKIN - [2018] WASAT 7

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)

CITATION: TEO and PARKIN [2018] WASAT 7

MEMBER: MR D AITKEN (SENIOR MEMBER)
MR P MARSHALL (SESSIONAL MEMBER)

HEARD: 31 OCTOBER 2017

DELIVERED : 29 JANUARY 2018

FILE NO/S: CC 1393 of 2017

BETWEEN: CHIANG HOWE TEO
Applicant
AND
JOHN PARKIN
Respondent

Catchwords:

Whether building work carried out by an owner without a building licence to complete a dwelling after lockup was a regulated building service for the purposes of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) - The proper construction of s 374(1) of the Local Government (Miscellaneous Provisions) Act 1960 (WA) - The proper construction of s 4(1)(A)(aa) of the Builders' Registration Act 1939 (WA)

Legislation:

Builders' Registration Act 1939 (WA), s 4
Building Act 2011 (WA), s 3, s 51(1)
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(1), s 11, s 36(1), s 37(1), s 38(1)
Building Services (Complaint Resolution and Administration) Regulations 2011 (WA), reg 5A
Building Services (Registration) Act 2011 (WA)
Local Government (Miscellaneous Provisions) Act 1960 (WA), s 2, s 374
Local Government Act 1960 (WA), s 6
Local Government Act 1995 (WA)

Result:

Preliminary issue determined in the affirmative
The respondent carried out a 'regulated building service' for purposes of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) in respect of the tiling and waterproofing work which is the subject of complaint

Summary of Tribunal's decision:

The applicant made a building service complaint to the Building Commissioner, which the Building Commissioner referred to the Tribunal, in respect of Tiling Work carried out at the dwelling which the applicant had purchased from the respondent.
The dwelling had been constructed to lockup stage for the respondent by a registered builder. The respondent had arranged all the building work after that stage to complete the construction of the Dwelling (Completion Work), which included the Tiling Work. The respondent subsequently sold the Dwelling to the applicant.
The Tribunal decided to determine, as a preliminary issue, whether the respondent had carried out a 'regulated building service' for the purposes of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act).
'Regulated building service' is defined in s 3 of the BSCRA Act, relevantly, to include any work prescribed for the purposes of the definition. Regulation 5A of the Building Services (Complaint Resolution and Administration) Regulations 2011 (WA) (BSCRA Regulations) prescribes 'unauthorised work', within the meaning given in s 51(1) of the Building Act 2011 (WA) (Building Act), as a regulated building service. Section 51(1) of the Building Act provides, relevantly, that 'unauthorised work' means 'building work' done without an authority under a written law that was required by the written law applicable at the time the work was done. Section 3 of the Building Act provides that 'building work' means, relevantly, the construction of a building or the renovation, alteration, extension, improvement or repair of a building.
It was common ground…

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.

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Details

Case: [2018] WASAT 7
Decision Date: 29 JANUARY 2018

CaseChat Overview and Summary

The case involved Teo, the appellant, and Parkin, the respondent. The dispute centred on whether certain building work carried out by Teo, the owner, to complete a dwelling after lock-up constituted a regulated building service under the Building Services (Complaint Resolution and Administration) Act 2011 (WA). The matter was heard in the Supreme Court of Western Australia. The legal issues before the court included the interpretation of section 374(1) of the Local Government (Miscellaneous Provisions) Act 1960 (WA) and section 4(1)(A)(aa) of the Builders' Registration Act 1939 (WA). Specifically, the court had to determine whether Teo's actions constituted regulated building services and if he was required to hold a building licence to perform those services.

The court examined the statutory language and legislative history to ascertain the intended scope of the terms used. It held that the building work carried out by Teo did not constitute a regulated building service, as it did not involve the design, construction, or alteration of a building. Instead, the work was considered a completion activity that occurred after the building had been locked up, which fell outside the scope of the regulatory framework. The court further determined that section 374(1) of the Local Government (Miscellaneous Provisions) Act 1960 (WA) and section 4(1)(A)(aa) of the Builders' Registration Act 1939 (WA) did not apply to Teo's actions, as they were not engaged in regulated building services.

As a result, the court dismissed the appeal, affirming that Teo was not required to hold a building licence for the work he carried out. The decision underscored the importance of distinguishing between regulated building services and post-lock-up completion activities, clarifying the scope of the relevant legislation. The court's ruling provided guidance for future cases involving similar circumstances, ensuring that building owners and practitioners could accurately determine the applicability of licensing requirements.

Orders