TGSBC PTY LTD and LEES
[2019] WASAT 90
•15 OCTOBER 2019
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2001 (WA)
CITATION: TGSBC PTY LTD and LEES [2019] WASAT 90
MEMBER: MS C WALLACE, SENIOR MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 15 OCTOBER 2019
FILE NO/S: CC 1049 of 2019
BETWEEN: TGSBC PTY LTD
Applicant
AND
MATTHEW LEES
TANI QUACH
Respondents
Catchwords:
Building Services (Complaint Resolution and Administration) Act 2011 (WA) - Review of Building Remedy Order made by Building Commissioner - Whether orders made by consent - Relevant principles to apply when considering if a consent order can be set aside - Whether real intention to consent - Whether review application misconceived and/or lacking in substance
Legislation:
Building Services (Complaint Resolution and Administration) Act 2001 (WA), s 5(1), s 57(1)(c)
State Administrative Tribunal Act 2004 (WA), s 47(1)(a)
Result:
Partly dismissed
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Respondents | : | In Person |
Solicitors:
| Applicant | : | N/A |
| Respondents | : | N/A |
Case(s) referred to in decision(s):
Harvey v Phillips (1956) 95 CLR 234; [1956] HCA 27
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The applicant, TGSBC Pty Ltd, filed an application with the Tribunal on 16 July 2019 pursuant to s 57(1)(c) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) seeking to review Building Remedy Order (BRO) No. 121 of 2019 made by the Building Commissioner in favour of the respondents, Mr Matthew Lees and Ms Tani Quach, in respect of a building service carried out by the applicant in the suburb of South Perth.
The original complaint lodged by the respondents with the Building Commissioner on 21 August 2018 comprised 9 building service complaints alleging that the applicant had performed a regulated building service which was not carried out in a proper and proficient manner, or which was faulty or unsatisfactory pursuant to s 5(1) of the BSCRA Act.
The applicant had constructed the residential dwelling for a previous owner.
The respondents were successful in their complaints and BRO No. 121 of 2019 was made on 18 June 2019 and required specified remedial work to be performed by the applicant within 28 days of the date of the order.
The grounds of the applicant's review application stated the following:
We believe that the evidence provided is untrue and false and that the department is bias when considering evidence provided[.]
At the initial directions hearing before the Tribunal on 17 July 2019 the applicant sought to depart from the bold allegations contained in the application and simply asserted that the complaints were not substantiated.
In response, the respondents informed the Tribunal that a number of the orders comprising BRO No. 121 of 2019 were consent orders which had been agreed to by the applicant and therefore they queried how they could now be the subject of review. The applicant refuted this position and contended that it had never agreed or consented to building remedy orders being made against it.
The Tribunal therefore made standard orders requiring the Building Commissioner to file a statement of reasons for the decision with the Tribunal and to provide copies of documents and other material in its possession or under its control which were relevant to the Tribunal's review of the decision. The Tribunal received the statement of reasons for decision together with the relevant bundle of documents on 20 September 2019.
The Tribunal also listed the matter for the delivery of an oral decision on 11 October 2019 on the preliminary issue as to whether the review application was seeking improperly to review orders which were made by consent of the parties and to otherwise make any further programming orders as required.
On 1 October 2019 the applicant filed written submissions with the Tribunal. A large proportion of the submissions allege various errors made by the Building Commissioner in reaching its decision. The applicant also submitted that the respondents were aware of a faulty water inlet valve in the powder room and had likely undertaken unsuccessful attempts to remedy the issue themselves which had caused the leak then being complained of in each of complaint items 1-7. In addition the respondent submitted that the water leak issue had in any event been rectified by it and therefore the relevant BRO's should be dismissed.
Evidence before the Tribunal
The documents provided by the Building Commissioner which are of relevance to the preliminary issue are as follows:
1.In an email dated 8 November 2018 from the applicant to Building Commissioner staff, the applicant agreed to perform remedial works in respect to complaints 1, 2, 3 and 4 and agreed to make good. The respondent also agreed to remedy complaint item 7 and stated the following:
We discussed the matter with the owners and we have mutually agreed to provide a PCV cover over the hole at no cost to the owners[.]
However, the applicant clearly refused to consent to building remedy orders being made in respect of complaint items 5 and 6 and 8 and 9.
2.The Building Commissioner provided the parties with a Proposed Building Remedy Order on 8 January 2019 to which the parties provided comment. On 21 January 2019 the applicant emailed the Building Commissioner as follows:
1)Item 1 Grd Floor Powder
We agree with order to remedy[.]2)Item 2 Grd Floor Powder
We agree with order to remedy[.]3)Item 3 Grd Floor Powder
We agree with the order to remedy[.]4)Item 4 Grd Floor Powder Toilet
We agree with order to remedy[.]5)Item 5 Grd Floor Ensuite 2 Vanity
We disagree with order to remedy[.]6)Item 6 Grd Floor Ensuite 2 Tapware
We disagree with order to remedy[.]7)Item 7 Grd Floor Ensuite 2 Vanity
We agree with order to remedy[.]8)Item 8 Upper Floor Linen
We disagree with the proposed order for this item[.]9)Item [9] Upper Floor Linen
We disagree with the proposed order for this item[.]3.A slightly Amended Proposed Building Remedy Order was provided to the parties for their comment on 1 May 2019. The applicant provided its comments to the Building Commissioner by email on 13 May 2019. That email stated that the applicant disagreed with some of the items in the Amended Proposed Building Remedy Order and set out comments in that regard. Those items in relation to which the applicant refuted liability, remained complaint items 5 and 6 and 8 and 9.
Relevant principles
The relevant principles in relation to orders made by agreement or consent are well established. A consent order effectively formalises an agreement reached by parties in litigation and is difficult to set aside other than on the same grounds by which a formal agreement could be set aside.
In Harvey v Phillips (1956) 95 CLR 234; [1956] HCA 27, Dixon CJ, McTiernan, Williams, Webb and Fullagar JJ stated, at 243-4:
The question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclose of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like[.]
The High Court in that case refused to set aside the compromise despite acknowledging the 'very unwilling and ephemeral character of the consent which the plaintiff was led to give' and said in this regard at 244:
But it is enough if she expressed a real intention to consent, even if experience might have suggested that it was an attitude she was not likely to maintain. … the finding of the Supreme Court, supported as it is by evidence, suffices to establish that she definitely did give her authority, however reluctant it may have been. It is impossible to regard the authority she thus gave as insufficient to support the compromise. The issue is one which must be considered from the defendants' point of view as well as from hers.
It is important, in the Tribunal's view, that there are difficult hurdles to overcome before a party could set aside an order purportedly made with their agreement. If the position were otherwise, the beneficial processes of negotiation, facilitation, conciliation and mediation would be detrimentally undermined.
When parties agree to consent orders, it is with a desire and intent to bring their dispute to finality. The confidence parties place in their ability to compromise or settle their dispute on certain terms cannot be eroded on the basis that one of the consenting parties, upon further reflection, changes their mind.
Determination
It is clear to this Tribunal that the building remedy orders made by the Building Commissioner in respect to complaint items 1, 2, 3, 4 and 7 were made with the unambiguous consent and authority of the applicant. There is no evidence before the Tribunal as to illegality, misrepresentation, non-disclosure of material fact, duress, mistake, undue influence, abuse of confidence or the like which may entitle the applicant to seek to set aside those consent orders.
The correspondence exchanged between the applicant and the Building Commissioner make it very clear that the applicant had undertaken cautious due diligence before agreeing to remedy particular complaint items and had also very clearly taken a particular apposite position in relation to those complaint items with which it disagreed. There is no evidence before the Tribunal of anything untoward in that process.
Indeed, prior to providing its detailed response to the complaint items to the Building Commissioner on 8 November 2018, the applicant attended a site inspection at the property on 29 October 2018 together with a licensed plumber in order to thoroughly investigate each complaint made by the respondents. The investigation does not appear to be superficial and involved, in respect to complaint items 1-7, the plumber dismantling the pan and cistern to investigate the leak in the powder room; as per email dated 26 September 2018 from the applicant to the respondent.
The written submissions filed by the applicant fail to address the issue of consent. To the extent that they seek to raise alleged errors in the reasoning of the Building Commissioner, the submissions are misconceived and not relevant to the preliminary issue determination by the Tribunal.
In relation to the allegation that the respondents were aware of the issue regarding the water inlet valve and may have caused or contributed to the relevant complaint/s, that submission is also not a relevant consideration as to whether the applicant consented to remedy particular complaint items at the time that the BRO was made.
Lastly, if the remedial works have been performed successfully by the applicant as it contends, then this appears to be a further basis on which the Tribunal ought to consider dismissing the review application. This is for a number of reasons. Firstly, the actions taken by the applicant to comply with the BRO support the finding being made by the Tribunal that it had consented to the orders being made. The applicant had effectively agreed in writing to perform specified remedial works and then proceeded to carry out those works consistent with that stated position.
Secondly, assuming that there was a proper foundation on which to seek to set aside or review the relevant orders, such review would now, in respect of complaint items 1-4 and 7, be rendered nugatory on the basis that the remedial works have been performed.
Lastly, in relation to the applicant's contention that remedial works have concluded, the Tribunal notes that if a review of the relevant BRO's took place, there would necessarily be an absence of evidence on which the Tribunal could determine whether the building service is faulty or unsatisfactory, because the performance of the remedial work has likely either destroyed or altered the evidence on which independent experts would opine on those matters. Indeed the very building service originally complained of in August 2018 may no longer exist due to the applicant's own actions.
Conclusion
In conclusion, the Tribunal finds that there is therefore no basis on which those BRO's relating to complaint items 1-4 and 7 could be set aside or the subject of a review proceeding given the Tribunal's finding that they are in the nature of consent orders. The fact that the applicant has subsequently changed its view on consent is not a sufficient basis on which to erode or taint or disturb its earlier agreement.
Therefore that part of the applicant's application seeking to review the BRO's in respect of complaint items 1-4 and 7 is misconceived or lacking in substance and will be dismissed pursuant to s 47(1)(a) of the State Administrative Tribunal Act 2004 (WA). However, in the Tribunal's view the applicant may be entitled to seek review of the BRO's made by the Building Commissioner in respect of complaint items 5 and 6 and 8 and 9. That part of the application shall be programmed by the Tribunal forthwith.
Orders
1.Pursuant to s 47(1)(a) of the State Administrative Tribunal Act 2004 (WA) that part of the review application in respect of complaint items 1-4 and 7 contained in Building Remedy Order No. 121 of 2019 is hereby dismissed.
2.The remaining part of the review hearing will proceed in respect of complaint items 5 and 6 and 8 and 9 contained in Building Remedy Order No. 121 of 2019.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS C WALLACE, SENIOR MEMBER
15 OCTOBER 2019
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