THE OWNERS OF HEIRLOOM STRATA PLAN 63644 and BUILT PTY LIMITED

[2024] WASAT 100

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

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

CITATION:   THE OWNERS OF HEIRLOOM STRATA PLAN 63644 and BUILT PTY LIMITED [2024] WASAT 100

MEMBER:   MS N EAGLING, MEMBER

HEARD:   DETERMINED ON THE DOCUMENTS

DELIVERED          :   13 SEPTEMBER 2024

FILE NO/S:   CC 241 of 2022

CC 243 of 2022

CC 1579 of 2022

BETWEEN:   THE OWNERS OF HEIRLOOM STRATA PLAN 63644

Applicant

AND

BUILT PTY LIMITED

Respondent

Catchwords:

Building Services (Complaint Resolution and Administration) Act 2011 (WA) - Determination of preliminary issue - Whether complaint item set out in complaint schedule filed in Tribunal has been referred to the Tribunal by the Building Commission

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5, s 5(1), s 7(1), s 9(1), s 10(1), s 11(1)(d), s 38, s 38(1)

Result:

Complaint item not referred to Tribunal

Category:    B

Representation:

Counsel:

Applicant	:	Mr W Vogt & Mr B Sassonn
Respondent	:	Mr A Buchan

Solicitors:

Applicant	:	Vogt Legal
Respondent	:	Hotchkin Hanly

Case(s) referred to in decision(s):

Ferrara and Webb & Brown-Neaves Pty Ltd [2021] WASAT 155

Owners of Island Apartments Strata Plan 52597 v Pindan Pty Ltd [2017] WASAT 25

Zimowski and Ideal Homes Pty Ltd [2022] WASAT 82

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1. These matters concern a dispute between The Owners of Heirloom Strata Plan 63644 (applicant) and Built Pty Ltd (respondent) in relation to alleged faulty or unsatisfactory building work at a complex of heritage apartments in Fremantle known as Heirloom Apartments.  The matters are listed for a four-day final hearing later this year. 

2. The respondent contends that one of the items in the complaint schedule lodged with the Tribunal for matter CC 243 of 2022 was one which was not referred to the Tribunal by the Building Commission.

3. At a directions hearing on 31 July 2024 the Tribunal ordered that this jurisdictional issue should be determined by the Tribunal as a preliminary issue on the papers.

Issue

1. The only issue before the Tribunal in relation to this matter is whether item 1.36 as described by the applicant in proceeding CC 243 of 2022 (Item 1.36) is within the jurisdiction of the Tribunal.

Factual background

1. Item 1.36 is referred to in the complaint schedule lodged by the applicant with the Tribunal on 26 March 2024.  However, as discussed below, it was not referred to in the original complaint schedule for this matter referred by the Building Commission (BC).

2. By Item 1.36 the applicant seeks a building remedy order requiring the respondent 'to investigate and rectify the cause of water ingress' in relation to Unit 174.

3. The original building service complaint relating to CC 243 of 2022 was made to the BC on 6 January 2022 and is BC2022-119.  The BC referred BC2022-119 to the Tribunal on 28 February 2022.  The referral annexed a complaint schedule which listed five items.  Item 1 of that complaint schedule, under the heading 'Location and/or contract issue', states as follows:

   Units – Leaking water into apartments via walls and roof areas.

   The following are the affected units: 2, 3, 6, outside 12, 13, 31, 36, 43, 53, 54, 66, 68, 72, 75, 85, 105, 109, 111, 112, 114, 121, 123, 125, 135, 147, 148, 155, 156, 158, 167, 168, 169, 170, 171, 173, 175, 176, 178, 179, the hallway between units 53 and 54, and the passage outside of 173.

4. Under the heading 'Remedy Sought by the Applicants', the following is stated:

   Rectification work in accordance with paragraphs 6.99 ‑ 6.103 of Prescient Consulting Report 1 dated 29 November 2021 and Prescient Consulting Report 2 dated 29 November 2021.

5. The applicant's submissions filed 16 August 2024 state that complaint item 1 was separated into sub-complaints (including Item 1.36) for the purpose of facilitating the parties' negotiation and engaging expert evidence in respect of the sub‑complaints.

The jurisdiction of the Tribunal

1. Under s 5 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (Act) a person may make a complaint to the BC about a regulated building service not being carried out in a proper and proficient manner or being faulty or unsatisfactory (building service complaint). The BC may choose to accept or refuse the complaint (s 7(1)) and, if the complaint is accepted, must cause an investigation of the complaint by one or more authorised persons (s 9(1)) who must then provide a report to the BC which includes recommendations as to the manner in which the complaint must be dealt with (s 10(1)). The BC then determines how to deal with the complaint, one option being to refer the complaint to the Tribunal under s 11(1)(d) of the Act.

2. If a complaint is referred to the Tribunal, s 38 of the Act sets out how the Tribunal may deal with the building service complaint. Section 38(1) states as follows:

   (1)If the Building Commissioner refers a building service complaint to the State Administrative Tribunal, the Tribunal may -

   (a)if the Tribunal is satisfied that the regulated building service that is the subject of the building service complaint has not been carried out in a proper and proficient manner or is faulty or unsatisfactory, deal with the building service complaint by making a building remedy order; or

   (b)otherwise, decline to make a building remedy order.

3. I accept the submission of the respondent that the words 'subject of the building service complaint' in s 38 of the Act refer back to the building service complaint required to be lodged with the BC under s 5(1). Therefore once a building service complaint has been referred to the Tribunal by the BC under s 11(1)(d), the Tribunal only has jurisdiction to deal with those items of complaint which are referred to the Tribunal by the BC and cannot consider additional complaint items that have not been referred.

4. In Owners of Island Apartments Strata Plan 52597 v Pindan Pty Ltd [2017] WASAT 25 (Pindan) at [67], the Tribunal stated as follows:[1]

   … The enabling act in this instance confers power on the Tribunal to make a building remedy order or decline to make a building remedy order in relation to the 'building service complaint' if the Building Commission refers the building service to the Tribunal.  The Tribunal only has power to determine complaints that are referred to it - the Tribunal cannot determine any complaint that is not referred to it.

   (original emphasis)

   [1] See also Zimowski and Ideal Homes Pty Ltd [2022] WASAT 82 at [20] and Ferrara and Webb & Brown-Neaves Pty Ltd [2021] WASAT 155 at [26].

Contentions of the parties

1. The applicant argues that a key aspect of complaint item 1 of BC2022‑119 is that preceding the listing of the affected units, the complaint item is described as 'Leaking water into apartments via walls and roof areas'.  As noted above, this appears under the column 'Location and/or contract issue' in the complaint schedule.

2. The applicant argues that the substance of complaint item 1 of BC2022‑119, being the building service complaint that was referred to the Tribunal for determination on 24 February 2022, is that the apartment complex has experienced water ingress into apartments via walls and roof areas.

3. The respondent contends that Item 1.36 has not been referred to the Tribunal.

Conclusion

1. Item 1 does not refer to unit 174/item 1.36 and neither do the reports from Prescient Consulting.  Unit 174 is also not referred to in any other part of the complaint schedule for matter CC 243 of 2022 or in the complaint schedules for the other two related matters.

2. I acknowledge that complaint item 1 is described as 'Leaking water into apartments via walls and roof areas'.  However, immediately below this description is the statement 'The following are the affected units'.  In my view Item 1 is very specific in its description of which are the affected units - 38 units are individually listed (including the units either side of unit 174) as well as an area outside a unit, a hallway between two units and a passageway outside a unit.

3. This is not a matter where the scope of the complaint item is the same as or is different to that before the BC (as was the case for example in Pindan).  A different result might be contemplated if, for example, Item 1 referred to units 'including [and then listing several units]'.  However, Item 1 states clearly that 'The following are the affected units' (my emphasis).  In my view this is a situation where the complaint in relation to Unit 174 has simply not been raised before the BC at all and therefore has not been referred to the Tribunal.

4. In my view, Item 1.36 has not been referred to the Tribunal by the BC and therefore is not within the jurisdiction of the Tribunal.

Orders

The Tribunal orders:

1.Item 1.36 in CC 243 of 2022 has not been referred to the Tribunal by the Building Commissioner and therefore is not within the jurisdiction of the Tribunal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MS N EAGLING, MEMBER

13 SEPTEMBER 2024