THE OWNERS OF 41 WESLEY STREET BALCATTA STRATA PLAN 67207 and DND BUILDING CO PTY LTD
[2021] WASAT 8
•1 FEBRUARY 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION: THE OWNERS OF 41 WESLEY STREET BALCATTA STRATA PLAN 67207 and DND BUILDING CO PTY LTD [2021] WASAT 8
MEMBER: MS L EDDY, SENIOR MEMBER
HEARD: 30 OCTOBER 2020
DELIVERED : 1 FEBRUARY 2021
FILE NO/S: CC 904 of 2020
BETWEEN: THE OWNERS OF 41 WESLEY STREET BALCATTA STRATA PLAN 67207
Applicant
AND
DND BUILDING CO PTY LTD
Respondent
Catchwords:
Building services complaint - Building Commissioner refused to accept complaint on basis complaint lodged out of time - Application for leave to review decision of Building Commissioner to refuse to accept complaint - Where date of completion of building works not certain because of lack of information
Legislation:
Building Act 2011 (WA), s 3, s 33(1), s 33(2)(a)
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5, s 6, s 6(1), s 6(2), s 7(2), s 7(3), s 8, s 9, s 10, s 11, s 11(3), s 57(2), reg 7, reg 7(a)(ii)
Interpretation Act 1984 (WA), s 75, s 75(1), s 76
Result:
Application for leave allowed
Decision of Building Commissioner set aside and sent back for reconsideration
Category: B
Representation:
Counsel:
| Applicant | : | N/A |
| Respondent | : | N/A |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | Gandhi And Shaw |
Case(s) referred to in decision(s):
Gemmill Homes Pty Ltd v Sanders [2018] WASC 179
Healy v Deputy Commissioner of Taxation [2015] WASCA 44
Jacob v Save Beeliar Wetlands (Inc) [2016] WASCA 126
Minister for Immigration & Citizenship v Lai (2013) 249 CLR 332
The Owners of 38-40 Onslow Road, Shenton Park & Anor and C&I Constructions Pty Ltd [2014] WASAT 123
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
This is an application lodged by the strata company known as 'The Owners of 41 Wesley Street, Balcatta, Strata Plan 67207' (applicant) under s 57(2) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) seeking leave to review a decision of the Building Commissioner refusing to accept the applicant's complaint alleging defects in the building work carried out in the course of the construction of the buildings that form part of the strata titles scheme that applies to the land located at 41 Wesley Street, Balcatta.
The applicant lodged a complaint (BC2020-685) with the office of the Building Commissioner on 18 May 2020.[1] On the complaint form, the date of completion of the building service in question is specified as 22 May 2014. The applicant asserts that the date of completion of the building service specified in the complaint was based on information provided to the applicant by an officer of the relevant local government.
[1] This is the date on which the complaint was received according to the copy of the Building Complaint provided to the Tribunal, which was apparently lodged on the applicant's behalf by Jan Christie an employee of the applicant's strata manager.
On 30 September 2020, the Building Commissioner, through its delegate, refused to accept the complaint BC2020-685 on the basis that the complaint was not made in accordance with s 6 of the BSCRA Act, as it was made out of time. This was based on the Building Commissioner's delegate having determined that the relevant building service had been completed on 5 May 2020.
The applicant submits that the relevant building service provider, DND Building Co Pty Ltd (Builder) did not provide it with any information about the date of completion of the building works[2] and that the applicant reasonably relied on the information provided by the local government about that. In addition, it submits that the Builder advised the applicant's strata manager, in November 2014, that the building works were completed in June 2014. It was not until the applicant had lodged its complaint about the building works with the Building Commissioner that the applicant was first informed that the Builder claimed that all building works were completed by 5 May 2014.
[2] The applicant was not the owner of the land at the time the building works were carried out so did not have direct knowledge about the building works or when completion of the building works occurred.
Having regard to all of the information submitted by the applicant in relation to the issue, I am satisfied that the applicant in effect put forward two arguments. First, its complaint was lodged with the Building Commissioner within the time allowed for making such a complaint. Alternatively, if it was out of time, the Building Commissioner should have accepted the complaint, because it was not long out of time, good reason existed for the late lodgement of the complaint and the Builder had known about the matters the subject of the complaint for some time prior to the lodgement of the complaint with the Building Commissioner.
The Builder submits that the relevant building works were completed on 5 May 2014 and that it lodged a notice of completion, a certificate of construction compliance and a certificate of building compliance with the local government on or about 7 May 2014, stating that the works had been completed on 5 May 2014. The local government issued an occupancy permit on or about 24 May 2014.
According to the Builder, in February 2018 the applicant sent a copy of a report identifying a number of items of building work that the report alleged needed to be rectified. The Builder accepted all but nine of those items of work should be rectified and carried out remedial work in relation to the items it accepted needed rectification. The Builder asserts that the items of complaint that are the subject of the applicant's complaint to the Building Commissioner are the nine items from the 2018 report that it did not accept required rectification.
The Builder submits that the applicant's complaint to the Building Commissioner was made out of time because it was made more than six years after the building works were completed. It asserts that the Tribunal does not have power to extend the time within which a complaint may be made to the Building Commissioner under the BSCRA Act.
Legislative provisions
Following receipt of a complaint made under s 5, the Building Commissioner has a discretion to accept or to refuse to accept the complaint: s 7(3) of the BSCRA Act. The Building Commissioner may make such inquiries as are appropriate to enable the making of a decision to accept or refuse to accept a complaint: s 7(2) of the BSCRA Act. If the Building Commissioner decides to accept a complaint, he or she must cause an investigation of the complaint to be carried out and a report of the investigation must be prepared: s 9 and s 10 of the BSCRA Act. After considering the report, the Building Commissioner may dismiss the complaint, commence a conciliation, deal with the complaint or refer the complaint to the Tribunal: s 11 of the BSCRA Act. However, the Building Commissioner must dismiss a complaint 'if it is made out of time as referred to in section 6': s 11(3) of the BSCRA Act.
A decision of the Building Commissioner to refuse to accept a complaint under s 7(3) of the BSCRA Act may be reviewed if the Tribunal gives leave: s 57(2) of the BSCRA Act. There is no provision of the BSCRA Act that provides for any review of a decision by the Building Commissioner to dismiss a complaint having considered a report produced following investigation of the complaint on the basis that the complaint was made out of time pursuant to s 11(3) of the BSCRA Act.
There are no express requirements provided in the legislation governing the exercise of the discretion to grant leave to review a decision by the Building Commissioner to refuse to accept a complaint pursuant to s 57(2) of the BSCRA Act. Where a statutory grant of power is silent on the matters to be taken into account, the matters that the decision maker is required to take into account may arise by implication from the subject matter, scope and purpose of the legislation: Gemmill Homes Pty Ltd v Sanders [2018] WASC 179 at [109] and [125] - citing Minister for Immigration & Citizenship v Lai (2013) 249 CLR 332 at [67]; Jacob v Save Beeliar Wetlands (Inc) [2016] WASCA 126 at [49].
Without expressing any view on what further matters might be relevant to the question of whether leave should be granted to allow a review a decision of the Building Commissioner to refuse to accept a complaint, if the Tribunal is satisfied that, if the complaint had been accepted and an investigation carried out, it may reasonably have been determined that it was not necessary to dismiss the complaint on the basis that it was out of time, there might well be a basis to grant leave.
Date of completion of building works
A matter is out of time if made more than six years after completion of the regulated building service to which the complaint relates: s 6(1) of the BSCRA Act.
A regulated building service is taken to be completed (s 6(2) of the BSCRA Act):
(a)if the criteria for determining the date of completion for that building service are prescribed on the date determined in accordance with the criteria;
(b)if paragraph (a) does not apply on the date on which the building service was last carried out.
Regulation 7 of the Building Services (Complaint Resolution and Adminstration) Regulations 2011 (WA) (BSCRA Regulations) provides:
For the purposes of section 6(1) of the Act the following criteria apply when determining the date of completion of a regulated building service -
(a)in the case of building work or demolition work carried out under a building permit or a demolition permit -
(i)if, under the Building Act 2011 section 34(1), the responsible person in relation to the permit gives notice of cessation to act as the responsible person to a relevant permit authority, the work, in relation to that person, is completed when the notice is given;
(ii)otherwise, the work is completed when a notice of completion of the work is given to a relevant permit authority under the Building Act 2011 section 33(1);
(b)in the case of a regulated building service that -
(i)is not carried out under a building permit or demolition permit; and
(ii)is carried out under a home building work contract or other contract that provides for a date of practical completion; and
(iii)has been brought to practical completion,
the building service is completed on the date practical completion is achieved.
There is no dispute between the parties, at least for the purposes of determining the issues here under consideration, that the relevant building works were regulated building works within the meaning of the BSCRA Act. The documents lodged by the applicant[3] show that a building permit[4] dated 16 July 2013 was issued to the respondent permitting it to carry out building work at 41 Wesley Street, Balcatta, which building work was described as 'Eight Multiple Dwellings With Carparks Retaining Walls and Front Fence'. Thus the date of completion of the regulated building service is to be determined in accordance with reg 7(a)(ii) of the BSCRA Regulations.
[3] Identified as attachment #3 to an email sent from Glenn Stockden to the Tribunal on 10 November 2020.
[4] Permit number B13/1765.
Section 33(1) of the Building Act 2011 (WA) (Building Act) provides that notice of the completion of work, or a stage of the work, for which a building permit has been granted must be given to the relevant permit authority within seven days of the completion of the work. A notice of completion must be in an approved form. 'Approved' means approved by a prescribed person or in a prescribed way: s 3 of the Building Act. The Building Commissioner is the person who may approve the form of a notice of completion for the purposes of s 33(2)(a) of the Building Act.
The respondent has provided the Tribunal with a copy of its Form BA7: Notice of Completion that specifies that the respondent, being the builder named on Building Permit B13/1765, 'completed the building work / stage of building work / demolition work on' 5 May 2014. According to the letter addressed to the local government, dated 7 May 2014, that apparently accompanied that Notice of Completion, copies of the Form BA11: Application for Occupancy Permit Strata, BA17: Certificate of Construction Compliance and Form BA18: Certificate of Building Compliance, amongst other things, were also provided to the local government at the same time. The lodgement of those forms with the Notice of Completion would appear to indicate that the respondent was advising the local government that the building work had been completed rather than a stage of building work or any demolition work.
By way of a statutory declaration lodged with the Tribunal, Mr Davor Timkov, the director of respondent, declared to be true the facts contained in the respondent's submissions that '[t]he Respondent lodged its Form BA7 (and associated documentation) with the City of Stirling on or about 7 May 2014' and that the Form BA7 is the form prescribed under s 33 of the Building Act by which Notice of Completion of the development is given to the relevant permit authority (at paras 37 and 38).
The term 'given' in reg 7(a)(ii) of the BSCRA Regulations is not defined. Section 76 of the Interpretation Act 1984 (WA) (Interpretation Act) provides:
Where a written law authorises or requires a document to be served, whether the word 'serve' or any of the words 'give', 'deliver' or 'end' or any other similar word or expression is used, without directing it to be served in a particular manner, service of that document may be effected on the person to be served -
(a)by delivering the document to him personally; or
(b)by post in accordance with section 75(1); or
(c)by leaving it for him at his usual or last known place of abode, or if he is a principal of a business, at his usual or last known place of business; or
(d)in the case of a corporation or of an association of persons (whether incorporated or not), by delivering or leaving the document or posting it as a letter, addressed in each case to the corporation or association, at its principal place of business or principal office in the State.
Section 75(1) of the Interpretation Act provides:
Where a written law authorises or requires a document to be served by post, whether the word 'serve' or any of the words 'give', 'deliver', or 'send' or any other similar word or expression is used, service shall be deemed to be effected by properly addressing and posting (by pre-paid post) the document as a letter to the last known address of the person to be served, and, unless the contrary is proved, to have been effected at the time when the letter would have been delivered in the ordinary course of post.
What is, in fact, 'the ordinary course of post' for the purposes of s 75 of the Interpretation Act is a question of fact that may be proved by evidence: Healy v Deputy Commissioner of Taxation [2015] WASCA 44 at [69], [119] and [154].
There is no evidence before the Tribunal, nor does there appear to have been any evidence before the Building Commissioner, in relation to how the Notice of Completion was given to the local government. The fact that it appears to have been given to the local government under cover of a letter does not establish how that letter and the accompanying documents was sent, or given, to the local government. There is also no evidence as to the ordinary course of post in 2014, such that even if the letter was sent by ordinary post there is no basis on which to find when it might, absent proof to the contrary, to be taken to have been delivered, or given, to the local government.
On the available evidence, to the extent that the respondent and perhaps the Building Commissioner, may have believed that the date of completion of the regulated building service was 5 May 2014, this must be incorrect.
Mr Timkov believes that the Notice of Completion was given to the local government on or about 7 May 2014. Thus the only date of completion of the building works, applying reg 7(a)(ii) of the BSCRA Act, is on or about 7 May 2014.
What might be included within the phrase 'on or about 7 May 2014' might depend on by what means the Notice of Completion was given to the local authority. There is no evidence before the Tribunal in relation to the means by which the Notice of Completion was given to the local government. Nor is there any evidence as to when the local government in fact received the Notice of Completion. Such evidence would not always be necessary, but absent any information about the means of delivery and absent any basis on which one could make presumptions about when the document might have been taken to have been served, such information may assist in determining the date of completion of the building works and therefore the date within which any complaint about those works was required to be lodged with the Building Commissioner.
The Tribunal is satisfied that the date of completion for the purposes of s 6 of the BSCRA Act was later than 5 May 2014. How much later is, on the information available, a matter of pure speculation.
Where the difference between the date that relevant parties assert that the building works were completed is reasonably narrow, there might need to be more inquiries or investigation taken in order to ascertain the correct date of completion for the purposes of the legislation.
In this case, the Builder asserted that the date of completion was 5 May 2014 and the applicant asserted that the date was 22 May 2014. The difference between the dates is a matter of 17 days. Without any basis to know the means by which the Notice of Completion was given to the local authority, and what might, in fact, be encompassed by the notion of 'on or about' 7 May 2014, it would be wrong to assume that a complaint lodged on 18 May 2020 would necessarily be out of time in this case.
On the basis that it does not appear to the Tribunal that any steps were taken to investigate what the date of completion, in accordance with the BSCRA Regulations, actually was, I am satisfied that it was wrong to refuse to accept the applicant's complaint.
Depending on the results of an inquiry into the means by which the Notice of Completion was given to the local government and/or the date on which the local government received the Notice of Completion, the applicant's complaint may, or may not be, out of time. In the circumstances, leave should be granted allowing review of the question of whether the decision of the Building Commissioner to refuse to accept the complaint was the correct and preferable decision.
On the face of it, if the Building Commissioner forms the view that a complaint is out of time having regard to s 6 of the BSCRA Act after having accepted the complaint and having caused an investigation, the Building Commissioner must refuse the complaint (see The Owners of 38-40 Onslow Road, Shenton Park & Anor and C&I Constructions Pty Ltd [2014] WASAT 123 (The Owners of 38-40 Onslow Road, at [38] and [45]). If the Building Commissioner has investigated, formed a view that the date of completion meant that the complaint was out of time and on that basis determined to dismiss complaint, there is no right of review of that decision to the Tribunal provided for in the BSCRA Act. In circumstances where it is reasonably clear that although the Building Commissioner should not have refused to accept a complaint, if the complaint had been accepted, and investigated, it would have been found that the complaint was in fact out of time, while leave to review the decision of the Building Commissioner to refuse the complaint might be granted, the review might nonetheless result in the decision of the Building Commissioner being affirmed.
If the Building Commissioner refers a matter to the Tribunal pursuant to s 11 of the BSCRA Act because he has not been able to determine whether or not the complaint is out of time, the Tribunal has power to determine that matter.[5] The question of whether the Tribunal has, in such a matter, the ability to extend the time within which a complaint may be made, does not appear to have been determined by the Tribunal, and I do not now seek to make any such determination. However, my preliminary view is that I tend to agree with the Tribunal's comments in The Owners of 38-40 Onslow Road[6] in that I doubt the Tribunal has any such power, although not necessarily for all of the same reasons as the Tribunal gives in that case.
[5] See The Owners of 38-40 Onslow Road.
[6] See The Owners of 38-40 Onslow Road at [71][75].
In this case, absent more information, which I think can reasonably be assumed may be forthcoming upon further inquiries or upon an investigation of the question of when the building works were completed, it is simply not possible to determine the actual date of completion of the building works the subject of the complaint sought to be lodged by the applicants. Whether or not the complaint should have been accepted by the Building Commissioner might depend on whether any requirement to provide further details pursuant to s 8 of the BSCRA Act would result in sufficient information to determine whether or not the complaint is out of time.
On the information available to me, I am not able to determine whether the correct and preferable decision, standing in the shoes of the Building Commissioner, is to refuse to accept the complaint (because further information that could be obtained after requiring further details to be given pursuant to s 8 of the BSCRA Act would reasonably allow a determination that the complaint is out of time) or to accept the complaint and investigate the date of completion of the building works so as to decide whether to dismiss the complaint (because it is out of time) or otherwise deal with the complaint pursuant to s 11 of the BSCRA Act.
In the somewhat unusual circumstances of this case, although I am satisfied that leave should be granted to review the decision of the Building Commissioner to refuse to accept the applicant's complaint, as I am unable to determine, on the limited information available to the Tribunal, whether the complaint is, or is not, out of time, I cannot determine whether the complaint should be accepted or refused. Therefore, I am satisfied that I should set aside the decision that is being reviewed, the decision to refuse to accept the applicant's complaint, and send the matter back to the Building Commissioner for reconsideration. The Building Commissioner may be satisfied that he is able to determine whether the complaint should be accepted or not after requiring further details to be given, or may decide to accept the complaint and investigate the matter before determining whether the complaint is out of time.
Orders
1.The application for leave to review the decision of the Building Commissioner made pursuant to s 57(2) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) made on 30 September 2020, to refuse to accept the complaint of the Owners of 41 Wesley Street, Balcatta, Strata Plan 67207, about a regulated building service at 41 Wesley Street, Balcatta, is granted.
2.Pursuant to s 29(3(c) of the State Administrative Tribunal Act 2004 (WA), the decision of the Building Commissioner to refuse to accept the complaint of the Owners of 41 Wesley Street, Balcatta, Strata Plan 67207 about a regulated building service at 41 Wesley Street, Balcatta, is set aside and the matter is sent back to the Building Commissioner for reconsideration.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS L EDDY, SENIOR MEMBER
1 FEBRUARY 2021
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