| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA) CITATION : THE OWNERS OF STRATA PLAN 41133 and LENDLEASE PROJECT MANAGEMENT AND CONSTRUCTION (AUSTRALIA) PTY LTD [2014] WASAT 6 MEMBER : MR C RAYMOND (SENIOR MEMBER) HEARD : 27 NOVEMBER 2013 DELIVERED : 13 JANUARY 2014 FILE NO/S : CC 307 of 2013 BETWEEN : THE OWNERS OF STRATA PLAN 41133 Applicant
AND
LENDLEASE PROJECT MANAGEMENT AND CONSTRUCTION (AUSTRALIA) PTY LTD
First Respondent
BUILDING COMMISSION
Second Respondent
Catchwords: Building Services (Complaint Resolution and Administration) Act 2011 (WA) - Review of decision by Building Commissioner to refuse to accept complaint as being out of time - Effect of date of practical completion - Subsequent remedial work carried out pursuant to settlement agreement Legislation: Builders Registration Act 1939 (WA), s 12A
Building Act 2011 (WA)
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5, s 5(1), s 6, s 7, s 9, s 11, s 11(3), s 38, s 57(2), s 133, s 134, Pt 4
Building Services (Complaint Resolution and Administration) Regulations 2011 (WA), reg 7
Interpretation Act 1984 (WA), s 37 Result: Decision under review set aside with directions
Summary of Tribunal's decision: The applicant applied for leave to review and thereafter to review a decision of the Building Commission refusing to accept two complaints lodged under s 5 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA).
The Tribunal granted leave to review the decision on 17 July 2013 and the matter was then programmed to a final review hearing. It became common cause that the Building Commissioner had erred in relying on an assertion that the building works had reached practical completion on a particular date as a basis for refusing to accept the complaints as being out of time. Although practical completion of the building works had been achieved in 2002, there were ongoing problems with the building, resulting in a complaint being lodged with the Building Disputes Tribunal in 2005. In 2006, those proceedings were compromised as a result of the parties entering into a settlement agreement under which the first respondent agreed to carry out certain remedial work. On the review hearing, the most significant issue was to determine whether the remedial works carried out were completed within six years of the date of lodgement of the respective complaints. It was common cause that the carrying out of repair work constituted a regulated building service and the effect of s 6 of the legislation was that a complaint is made out of time if made more than six years after the completion of the regulated building service to which the complaint relates, which, in the circumstances of the case, was the date on which the building service was last carried out. A further issue was whether or not the applicant would be entitled to proceed with the complaints, in any event, because of an earlier complaint lodged with the Building Disputes Tribunal in 2008.
The Tribunal gave guidance as to the principles to be applied in forming a decision to refuse to accept a complaint on the basis that the complaint is made out of time. In adapting the pleading principles discussed in Australian Iron and Steel Ltd v Hoogland 108 CLR 471 (H.C.) at 488, the Tribunal concluded that a complaint made to the Building Commissioner must be supported by material disclosing an allegation that the regulated building service work was carried out within the six year time limit. On review, and in circumstances in which the parties had not carried out a thorough forensic testing of the evidence, so that it was not possible to conclude precisely when particular work was carried out and whether any particular current complaint was incapable of being linked to the actual work carried out, the complaint should be accepted where there is evidence which is not obviously unsustainable to the effect that each regulated building service was carried out within the time limit.
The Tribunal then examined the material before it in relation to each item of the complaints. With the exception of one complaint item which was withdrawn, the Tribunal concluded that there was evidence which was not obviously unsustainable to the effect that the relevant regulated building service was carried out within the six year time limit and it therefore could not be positively concluded that the complaints were made out of time.
In relation to the complaint made in 2008, the evidence established that the complaint had been lodged to protect the applicant's statutory rights and that the Building Disputes Tribunal had been requested to take no further action beyond acceptance and registration of the complaint. It was not possible to reconcile the 2008 complaint with the current complaints, but there was nothing to suggest that there had been any final determination of the complaint. However, even if the complaint had been dismissed by the Building Disputes Tribunal, the Tribunal concluded that it would be an inappropriate exercise of a discretion to refuse to accept the current complaints on that basis, because it was evident that the 2008 proceeding had not been finalised following full argument by proper contradictors.
The Tribunal therefore set aside the decision under review (save in respect of the claim item which was withdrawn), gave directions in relation to the need to properly investigate the status of the 2008 complaint and otherwise adjourned the matter to a directions hearing because of outstanding costs issues.
Category: B
Representation: Counsel:
Applicant : Mr JF Park
First Respondent : Mr JM Healey
Second Respondent : N/A
Solicitors:
Applicant : Park Linfoot Legal Solutions
First Respondent : Jackson McDonald
Second Respondent : N/A
Case(s) referred to in decision(s):
Australian Iron and Steel Ltd v Hoogland 108 CLR 471 (H.C.)
Brahms v Evans [2008] WASC 274
Filimon and Rimmer [2013] WASAT 13
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 The Owners of Strata Plan 41133 (applicant) lodged two complaints against Lendlease Project Management and Construction (Australia) Pty Ltd (first respondent). The Building Commission (second respondent) refused to accept the complaints and these proceedings seek a review of that decision. The Building Commission has played no part in the proceedings. 2 The complaints relate to building work carried out by the first respondent (then known as Bovis Lendlease Pty Ltd) in relation to an apartment building known as Upper East Side Apartments, No 29 Trafalgar Road, East Perth (the building), and were made under s 5 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act). The first complaint was lodged on 31 October 2012 (first complaint) reference C87142/1, and the second complaint was lodged on 21 January 2013 (second complaint) reference C89609/1. 3 On 11 February 2013, the Building Commission gave written notice of the Building Commissioner's decision to refuse to accept both complaints on the basis that the complaints had been made out of time as having not been made within six years after the completion of the regulated building service to which the complaints related. That decision is authorised under s 7 of the BSCRA Act. In the Building Commission's reasons for decision given on the same day, the delegate for the Building Commissioner relied on parts of the complaint forms, as completed, which showed that building work had commenced in January 2001 and that the building work was completed in February 2002. The reasons for decision referred to reg 7 of the Building Services (Complaint Resolution and Administration) Regulations 2011 (WA) (Regulations) which provides that a regulated building service, not carried out under a building permit or demolition permit (issued under the BSCRA Act) but carried out under a contract that provides for a date of practical completion, which has been brought to practical completion, is completed on the date practical completion is achieved. 4 The applicant has applied to the Tribunal under s 57(2) of the BSCRA Act to review the Building Commissioner's decisions in relation to each of the complaints. The Building Commission's files in relation to the complaints reveal that the Building Commissioner had limited documentation before him at the time of making the respective decisions. Apart from submissions from the applicant, the only other documents before the Building Commissioner were the respective complaint forms, the notice of proposed complaint, correspondence attached to the complaint forms, a Scott Schedule and the relevant building licence. 5 On 17 July 2013, the applicant was granted leave to review the decision to refuse to accept the building complaints. The essence of the reasons for the grant of leave was that there was no evidence before the Building Commissioner, or at that stage before the Tribunal, of any contract between the first respondent and any other entity governing the construction of the building. Consequently, there was no evidence of any contract which provided for a date for practical completion, whereas the applicant asserted to the Building Commission, and provided evidence before the Tribunal, of repair work being carried out by the first respondent within the six year limitation period, and it is this work which is alleged to be faulty, unsatisfactory or not completed in a proper and proficient way. Section 6 of the BSCRA Act provides that a building service complaint is made out of time if the complaint is made more than six years after the completion of the regulated building service to which the complaint relates. A regulated building service is further taken to be completed if the criteria for the determining of the date of completion are prescribed on the date determined in accordance with the criteria, or otherwise, on the date on which the building service was last carried out. The criteria are prescribed by reg 7 of the Regulations, to which reference has been made above. Relevantly, the building service is completed on the date practical completion is achieved where there is a contract that provides for a date of practical completion and the building has been brought to practical completion. 6 In the absence of any evidence to support the application of reg 7 of the Regulations, for the purposes of leave, the Building Commissioner had erred in refusing to accept the complaints on the basis on which he did. 7 At the request of the parties, the matter was adjourned on 17 July 2013 to a further directions hearing on 13 August 2013 to enable the parties to confer with a view to agreeing the appropriate orders to program the matter to a final hearing. The purpose of that order was to ensure that the parties had every opportunity to place all relevant material before the Tribunal at the review hearing. The directions made on 13 August 2013 expressly provided the parties with that opportunity. The parties were required to file a statement of issues, facts and contentions (SIFC), bundles of documents on which they wished to rely, and witness statements. The directions required notice to be given if any witness was required to attend for crossexamination. The first respondent gave notice to that effect in relation to one of the applicant's witnesses, Mr Phillip David Faigen. Although notice was not given, the applicant raised at the hearing that it had become apparent that it would need to cross-examine Mr Frank Smith, who had sworn a statutory declaration relied on by the first respondent. As the final hearing developed, it became apparent that there was no need to crossexamine either Mr Faigen or Mr Smith. Consequently, the hearing was concluded on the basis that the Tribunal would have regard to all the materials filed by the parties including witness statements. One further document was tendered by the applicant during the hearing, being a letter from the first respondent to the applicant's legal representative dated 21 November 2013, clarifying aspects of the first respondent's SIFC (Exhibit 1). 8 The facts hereinafter set out are established from the material before the Tribunal and unless the context indicates otherwise, are not in dispute. 9 As a result of the SIFCs, and clarification provided during the hearing, the issues between the parties were considerably confined. The first respondent accepted that the issue of practical completion was entirely irrelevant, on the basis that the claims advanced by the applicant were understood to be founded entirely on whether or not the first respondent was liable in respect of repair work carried out by it during a period alleged to be within the six years prior to lodgement of the claims. Most of this repair work was performed pursuant to a settlement agreement entered into between the parties on or about 24 February 2006. Pursuant to that agreement, the first respondent undertook to carry out remedial work as specified in a Scott Schedule. 10 The following emerge as the principal issues to be determined.
The issues 1) The principles to be applied to determining whether a complaint is out of time. 2) Whether on application of the applicable principles particular building work the subject of complaint was carried out outside the six year time limit. 3) Whether the complaints should not be accepted because of an earlier complaint made in 2008?
The applicable principles 11 Reference has been made above to the provisions of s 6 of the BSCRA Act and to reg 7 of the Regulations. There is no controversy between the parties as to the application of these provisions in that the first respondent also concedes that any remedial work undertaken by it, the subject of the complaints, constituted the provision of a regulated building service. The first respondent concedes that any work undertaken by it within a period of six years preceding the lodging of the complaints should have been accepted by the Building Commissioner as being within time but subject to consideration of the effect of a complaint lodged by the applicant with the Building Disputes Tribunal in 2008. The discussion which follows is therefore subject to the consideration of the 2008 complaint under Issue 3 below. 12 The applicant raises, as an alternative basis for acceptance of the complaints, that the applicant has an accrued right, as evidenced by preliminary notices issued in January 2008, in accordance with the principles discussed in Filimon and Rimmer [2013] WASAT 13 (Filimon). The effect, it is submitted, is that time has not commenced to run under the repealed s 12A of the Builders Registration Act 1939 (WA) (BR Act), because the original building works has never been fit for occupation in a free and uninterrupted manner: see Brahms v Evans [2008] WASC 274 at [38] and [40]. At the hearing, this argument was never fully developed because of the uncertainty of the standing of the complaints lodged with the Building Disputes Tribunal following the above preliminary notices in 2008. 13 The applicant also initially raised an argument that the settlement agreement was a contract which provided for a date of practical completion and that, therefore, time would run from the date of practical completion of each complaint item, as signed off by the applicant's representative, in accordance with the terms of the settlement agreement. The settlement agreement contains a mechanism for such a sign off as evidencing the date on which the particular item of repair was to be regarded as having been completed for the purposes of s 12A(1aa) of the BR Act. During argument, however, counsel for the applicant conceded that, on a proper construction of the settlement agreement, the process required signing off on final completion, rather than practical completion. Indeed, in some instances, the settlement agreement recorded that the work had been completed subject to monitoring over a stated period of time, which, at best, could be regarded as a conditional completion. The applicant did not press this aspect of the matter. 14 In the circumstances, in accordance with s 6 of the BSCRA Act, as the prescribed criteria for the determining of the date of completion for the building service do not apply, the building service complaint is made out of time if the complaint is made more than six years after the date on which the building service was last carried out. 15 Under s 7(3) of the BSCRA Act, the Building Commissioner, and therefore this Tribunal on review, may refuse to accept a complaint if the complaint is made out of time, as referred to in s 6 of the BSCRA Act. It is therefore necessary that the material provided by the parties enables a positive finding to be made, that the building service the subject of a complaint, was made out of time. 16 The question then arises as to the quality of material required to found such a decision. 17 It is to be noted that under s 7(2) of the BSCRA Act, the Building Commissioner may make such enquiries as are appropriate to enable the making of a decision under this section. This empowers the Building Commissioner to call for material from a proposed respondent. An authorised person designated by the Building Commissioner has power to carry out inspections or to enter a place in or on which the authorised person has reasonable cause to believe there are relevant records, and to direct a person to give such information as the authorised person requires, including to answer questions put to the person: see Pt 4 of the BSCRA Act. 18 When a provision, such as s 6 of the BSCRA Act, limits the time in which a complaint can be made, that is, it is annexed by a particular statute to a right it creates, the claimant, under the common law system of pleading, is required to allege that the action was brought within time: see Australian Iron and Steel Ltd v Hoogland 108 CLR 471 (H.C.) at 488. In adapting this principle to the case of a complaint made to the Building Commissioner under s 5 of the BSCRA Act, it is at least necessary for the material to disclose an allegation that the work was carried out in the six year time limit. 19 It is clear from the documents annexed to the complaints, and in particular to a lengthy letter written by the applicant's legal representative, which was attached, that all of the bases referred to above were being advanced in order to contend that the building services in question had been carried out within the permitted time limit. The Building Commissioner had a discretion to either accept the complaint, or to carry out further investigation with one or other or both the parties in order to be able to arrive at a positive finding, at least on a preliminary basis, as to whether the complaint was made within time. As already indicated, the information before the Building Commissioner did not include any contract which provided for a date of practical completion, and the Building Commissioner's decision not to accept the complaints on the basis that the date for practical completion was the determinative date, and had occurred outside the six year time limit, miscarried. 20 The question on review is whether, having regard to all of the additional information provided by the parties, a positive decision can be made. 21 A complaint made under s 5(1) of the BSCRA Act is that a regulated building service has not been carried out in a sufficient manner or is faulty or unsatisfactory. It is not a general complaint that an entire building, or the performance of the whole of a contract for the construction of a building, has been carried out in this manner. It is a complaint that specific aspects of the work have not been carried out to the requisite standard. The first respondent accepts in its submission that complaints will be made out of time if made more than six years after the completion of the regulated building service to which the complaints relate (first respondent's SIFC at paragraph 13). For the purposes of s 6 of the BSCRA Act, building services include building work as defined in the Building Act 2011 (WA), which includes the repair of a building or an incidental structure. 22 On review of a preliminary decision not to accept a complaint, it is therefore necessary for the Tribunal to consider whether, on all the material provided, a building service the subject of a complaint can be positively found not to have been carried out within the limitation period. 23 If the parties conduct a thorough hearing calling all relevant witnesses, and test the evidence through cross-examination, a decision can be made on a balance of probabilities. That would not be a final decision if the conclusion was that the complaint be accepted because the legislation requires the Building Commission, after making a preliminary decision to accept a complaint, to carry out an investigation and then take one of the steps provided under s 11 of the BSCRA Act. But, unless new evidence becomes available, it would be unlikely that the course followed under s 11 of the BSCRA Act would be to dismiss the complaint as being out of time. 24 However, in a case such as this where the material before the Tribunal does not include any detailed forensic examination to establish precisely when particular work was carried out and whether any particular current complaint is incapable of being linked to the actual work carried out, the decision whether or not a complaint should be accepted will depend upon whether there is evidence, which is not obviously unsustainable, that the relevant regulated building service was carried out within the limitation period. If the decision on review is that a complaint be accepted, and as that is not a final decision, further investigation by the Building Commission might disclose additional evidence which might result in a decision under s 11(3) of the BSRCA Act to dismiss a complaint as being out of time. This is an unfortunate consequence of the parties not availing themselves of the opportunity to thoroughly test the issues before the Tribunal. The risk may be more apparent than real, because it is probably unlikely that any new evidence, if not subject to thorough forensic testing, would be sufficient to enable findings to be made of precisely when particular work was carried out and whether any particular current complaint is incapable of being linked to the actual work carried out.
Does the material before the Tribunal establish that the particular work was carried out outside the six year time limit? 25 The first respondent constructed the building and achieved practical completion during or about late January 2002, the strata plan for the building having been registered on 1 February 2002. Over some period thereafter, complaints were made directly to the first respondent concerning alleged defective building works culminating in a complaint being lodged with the then Building Disputes Tribunal on 22 March 2005. 26 On 24 February 2006, the parties entered into a settlement agreement in respect of the proceedings before the Building Disputes Tribunal and in terms thereof the proceedings were withdrawn. The first respondent agreed to perform certain rectification work. The scope of the rectification work was set out in a Scott Schedule which was attached to the settlement agreement. There is now some uncertainty as to the actual Scott Schedule which was attached. Mr Hermanus Casper Hoogstrate, an owner of one of the lots in the strata scheme, who has taken a leading role on behalf of the applicant in dealing with the various building complaints, identifies a particular Scott Schedule dated 17 November 2005 as being the original Scott Schedule attached to the settlement agreement. Mr Frank Smith, General Manager Western Australia of the first respondent, referred in a statutory declaration to a copy of the settlement agreement with an attached Scott Schedule which is challenged by the applicant. Mr Smith's Scott Schedule includes a column setting out the estimated cost of the remedial work, which is not included in the November 2005 Scott Schedule. The applicant challenges the authenticity of the document referred to by Mr Smith as being the settlement agreement with the attached Scott Schedule. The applicant wished to crossexamine Mr Smith on this issue, but there were a number of practical difficulties which prevented that occurring on the day of the hearing. In any event, it became apparent that, although there was a difference between the parties as to what might be the true copy of the Scott Schedule attached to the settlement agreement, there was no issue concerning the description of the work which the respondent undertook to carry out. It was therefore not necessary to resolve the controversy concerning the Scott Schedule. Henceforth reference is made to the Scott Schedule simply as a means by which to refer to the work to be undertaken. 27 Similarly, while there is contention about whether or not the settlement agreement attached to Mr Smith's statutory declaration is a true copy of the settlement agreement, there is no dispute as to the terms of the settlement agreement. Both Mr Hoogstrate and Mr Smith refer to a settlement agreement dated 24 February 2006. The copy attached to Mr Hoogstrate's statement is of that date and the execution page is fully completed. The copy of the settlement agreement attached to Mr Smith's declaration is not dated nor is the execution page completed by Bovis Lendlease (as the first respondent was then known). It should be noted that in the first respondent's SIFC at paragraph 18, reference is made to the settlement agreement being entered into on 1 February 2006, but that does not accord with the evidence. 28 The settlement agreement incorporates various releases in favour of the first respondent (clauses 5.2 and 5.4). It also contains a signoff procedure as a means of procuring, in the form of a certificate, evidence that the various items of complaint had been satisfactorily completed. The first respondent contends that the effect of the settlement agreement will preclude the applicant from advancing certain claims. The issue was, however, not pressed before the Tribunal because it was accepted that this would not bear upon whether or not the complaints should be accepted as being within time or refused to be accepted as being out of time. That is a matter which, it was accepted, would have to be left over for consideration as part of the merits of the matter in due course. Consequently, it is not necessary to deal any further with the first respondent's written submissions set out in paragraphs 32 to 33.3 of the first respondent's SIFC relating to works for which the first respondent submits it cannot be held liable by reason of the terms of the settlement agreement. 29 Also attached to Mr Smith's statutory declaration is a document which he refers to as a 'Signoff Table'. The Signoff Table lists the agreed rectification works set out in the Scott Schedule. Particular rectification work is shaded in blue to denote items of rectification work which the first respondent accepts have been completed within the requisite six year period and which might be the subject of a complaint to the Building Commissioner. Mr Smith states that entries with no shading denote rectification work performed by the first respondent which had been completed more than six years before the first and second complaints. 30 Incorporated in Mr Smith's statutory declaration are two tables having the effect described in paragraphs 10 and 11 respectively of the statutory declaration. For convenience, reference is made firstly to paragraph 11, which refers to six items which together comprise the second complaint. Two of the items relate to tiles on the swimming pool floor which the first respondent accepts were to be rectified under the settlement agreement. The other four items contain the description of the complaint, but Mr Smith has not been able to identify any item in the Scott Schedule referring to them. In respect of all six items, it is acknowledged that the first respondent carried out rectification work during the period October through to December 2008. The first respondent's SIFC at paragraph 35 acknowledges that these are complaints made within the time limit and can therefore be pursued. It is understood that this is subject to whether any release under the settlement agreement may give rise to a defence to the merits of the claim and is also subject to the effect of the 2008 complaint. 31 As to the first complaint, in paragraph 34.1 of the first respondent's SIFC, the first respondent raises some issue about whether complaints relating to basement leaks can be pursued. However, the evidence of Mr Smith, read with the Signoff Table, reflects, without any qualification, that a complaint relating to water ingress in the basement was only signed off by the applicant as having been completed on 6 May 2009. It is obvious, therefore, that there was work ongoing on this complaint from 2006 to some date prior to 6 May 2009. The Signoff Table reflects the first respondent's understanding that the six year limitation period would expire on 6 May 2015. Counsel for the first respondent conceded in oral submissions that the basement leaks claim is a claim that is within the dispute parameters which should be sent back to the Building Commission (T:89; 27. 11.13). That covers complaint item 1 of the first complaint. 32 There were two other items of complaint remaining in respect of the first complaint. Item 2 relates to apartment leaks affecting Units 7D, 7A, 7B and G1. The third item of complaint relates to Unit 7D to the effect that the soffit in the kitchen is bulging and loosening again. 33 The first respondent's position, as reflected in its SIFC at paragraphs 34.2 and 34.3, is that, in respect of Units 7B and 7D, the remedial work was signed off under the settlement agreement prior to 31 October 2006 and that no further repair works were undertaken. In the first table referred to in paragraph 10 of Mr Smith's statutory declaration, he deals with each of the units referred to in complaint 1. He identifies only Units 7B and G1 as having been included in the Scott Schedule for rectification work to be completed. In relation to Unit 7B, he states that the work was completed on 1 May 2006, as evidenced in a certificate signed off on behalf of the applicant. In relation to Unit G1, he states that there is no record of any work being conducted. In relation to Unit 7D, he likewise states that the work was completed on 1 May 2006. 34 Mr Hoogstrate has dealt in some detail in his statement of evidence with work undertaken but which remains defective, and specifically identifies, at paragraph 18, the periods when work was carried out on each of Units 7A, 7B, 7D and G1 in periods subsequent to 1 May 2006. The works were carried out, according to him, on dates between 2008 and 2011. He also refers to specific correspondence between himself and Mr Noel Shepherd, a construction manager employed by Bovis Lendlease. For convenience, the complaint items are dealt with in the order in which they were dealt with by counsel during the hearing. 35 It is not clear from the first respondent's submissions and the evidence of Mr Smith whether there is any challenge to the complaint in respect of Unit 7D being accepted (other than on the basis that it will be contended that the terms of the settlement agreement will release the respondent from this claim). In the table under paragraph 10 of Mr Smith's statutory declaration, he does not appear to challenge that work was done in relation to complaints concerning this unit subsequent to a signoff on the initial remedial work. Item 10 of the Signoff Table refers to 'Apartment' 7D and reflects that the remedial work was signed off on 1 May 2006. There is, however, no direct challenge of Mr Hoogstrate's statement at paragraph 18 that remedial work was carried out on 'Apartment' 7D from on or about 1 May 2007 until 2011. Further, Mr Hoogstrate has attached email communications which appear to indicate work being carried out between September 2009 and August 2011 (see annexures HCH 5 and HCH 9). There is therefore evidence, which is not obviously unsustainable, of ongoing remedial work in relation to Unit 7D as late as August 2011. Mr Smith's evidence is equivocal. On this evidence, I am therefore unable to conclude that the complaint in relation to apartment leaks affecting Unit 7D (complaint item 2 of the first complaint) is out of time. 36 There is a further complaint item in relation to Unit 7D to the effect that the soffit is bulging and loosening 'again' (item 3 of complaint 1). In relation to that item, counsel for the applicant advised that the necessary remedial work had been completed in 2012 and 2013 and was now resolved (T:103; 27.11.13), and that complaint will therefore be treated as withdrawn. 37 Apartment leaks in relation to Units 7A and 7B can conveniently be dealt with together. As in relation to Unit 7D, it is not clear that there is any challenge in relation to the acceptance of the complaint in relation to Unit 7A. This does not appear to be addressed in the submissions (other than in relation to the effect of the release under the settlement agreement) and Mr Smith does not make any assertions in his statutory declaration concerning Unit 7A. Mr Smith's challenge appears to be limited to the complaints relating to Unit 7B and G1 (see paragraph 10 table item 2 of Mr Smith's statutory declaration). Mr Smith's evidence is that the remedial work in respect of Unit 7B was signed off on 1 May 2006. 38 Mr Hoogstrate's evidence is that building work was carried out in relation to 'Apartment' 7A during 2008 and 2009 and in relation to 'Apartment' 7B, between 2008 and 2012. Mr Phillip Faigen, an architect and builder retained by the applicant, provided a statement of evidence supporting the applicant. Mr Faigen acted as agent for the applicant in issuing the necessary preliminary notice relating to, and the making of the complaint, in 2008 to which reference has already been made. Mr Faigen attaches to his statement a copy of a letter from Bovis Lendlease (as the first respondent was then known) dated 29 January 2008 in response to the preliminary notice (PDF 10). The letter which is from Ms Nichola Hodge, WA State Manager of Bovis Lendlease, advises that a contractor has been engaged to undertake investigation and complete the repairs to all areas of the building. A program is provided for the carrying out of work, relevantly, in relation to Unit 7A and Unit 7B during the week commencing 11 February 2008. 39 There is therefore evidence, which is not obviously unsustainable, that building works were carried out in relation to Units 7A and 7B subsequent to any date admitted by the first respondent. Mr Hoogstrate's evidence is not directly contradicted in any way and the letter dated 29 January 2008 supports Mr Hoogstrate's evidence that building work was carried out in relation to Unit 7A in or about 2008 and until 2009, and in relation to Unit 7B, between 2008 and 2012. There is therefore no sufficient basis to support a conclusion that the building work was carried out outside the limitation period in relation to Units 7A and 7B. 40 The position of the first respondent in relation to Unit G1 is also not clear. It appears from its SIFC that the first respondent will contend in due course that the complaint in relation to Unit G1 cannot proceed because of the terms of release contained in the settlement agreement. As already mentioned, that is a matter to be raised in the determination of the merits but is not relevant to whether or not the complaint should be accepted. All that Mr Smith states in his evidence is that there is no record of a signoff of the remedial works required in terms of the settlement agreement. That is not inconsistent with Mr Hoogstrate's evidence to the effect that Unit G1 has experienced leaks causing water damage to carpets and skirting boards which occurred in or about 2004 to 2005 and are still current (statement of evidence at paragraph 18), and that 'Apartment' G1 had never been free of water leaks (statement of evidence at paragraph 25(c)). Mr Hoogstrate also states that additional building works were carried out in relation to Unit G1 during the period from 1 May 2007 until 2009. Significantly, Mr Smith states that all items of complaint shaded blue in the Signoff Table are complaints in relation to which rectification work has been 'completed' within the requisite six year period and which might be the subject of a complaint to the Building Commissioner' (statutory declaration at paragraph 7). Item 11.4 of the Signoff Table relating to Unit G1 reflects that there has been no certificate of completion and no signoff, but the item is shaded blue. 41 The first respondent's written submissions did not assert that the complaint in relation to Unit G1 was out of time (SIFC at paragraph 34), but the point was raised in oral submissions (T100; 27.11.13). The submission, however, does not appear to be consistent with Mr Smith's evidence acknowledging that the complaint is open to be made to the Building Commissioner because work had been carried out within six years prior to lodgement of the complaint. 42 Having regard to all of the material placed before the Tribunal in regard to Unit G1, there is evidence, which is not obviously unsustainable, that building work was carried out within the limitation period. There is no basis on which to make a positive finding that the complaint should not be accepted as being out of time.
The effect of the 2008 complaint 43 On or about 16 January 2008, Mr Faigen, as agent for the applicant, provided the first respondent with a preliminary notice of an intention to lodge a complaint with the Building Disputes Tribunal. A notice of that date was enclosed with a letter dated 16 January 2008 addressed to the first respondent as it was then known. In that letter, Mr Faigen explained that the involvement of the Building Disputes Tribunal was not necessarily required, other than to accept lodgement of the complaint in order to protect the applicant's statutory position. Also enclosed was a letter addressed to the Registrar of the Building Disputes Tribunal enclosing a completed complaint form, the prescribed fee, a copy of the preliminary notice and a copy of the letter addressed to the first respondent. Mr Faigen advised that all that was required was that the complaint be accepted and registered. On 24 January 2008, Mr Faigen wrote to the applicant enclosing a copy of an acknowledgement of receipt by the Building Disputes Tribunal of the complaint form and providing reference BDT 16027/2. These documents are included in the applicant's bundle of documents at tab 24. 44 Although there is no evidence touching on the point, the first respondent's submission states that a copy of the complaint form was never served on the first respondent. There is no evidence as to how the complaint was subsequently dealt with by the Building Disputes Tribunal, if at all. Counsel for the applicant was not able to provide any clarification. 45 The first respondent submits that it assumes that the claim was abandoned and that it was dismissed by the Building Disputes Tribunal. If that is the case, it is submitted that the owners are unable to 'recirculate that claim under the guise of either of the current complaints'. Alternatively, the first respondent submits that if the 2008 complaint remained on foot as at the date of commencement of the BSCRA Act (29 August 2011) 'then it falls to be determined in accordance with the transitional provisions' and the applicant is precluded from lodgement of the complaints. 46 The degree of overlap between the 2008 complaint and the current first and second complaints cannot be readily identified. The 2008 preliminary notice raised workmanship defects referred to as 'new defects' in accordance with a list dated 29 October 2007. That list does not appear to be included in the bundle of documents filed by either party. If that was intended to be a reference to what Mr Faigen referred to in his statement of evidence as an updated Scott Schedule dated 3 September 2007 and revised on 29 November 2007 (statement of evidence at paragraph 22), then a consideration of the updated Scott Schedule (PDF 7) does not admit of any easy reconciliation with the items of the complaint raised in the new complaints 1 and 2. 47 In accordance with the principles discussed in Filimon, the applicant may well have accrued rights which are protected pursuant to s 37 of the Interpretation Act 1984 (WA). The effect of s 133 and s 134 of the BSCRA Act is that, if no hearing was conducted in respect of the 2008 complaint, the matter was transferred to the Building Commissioner to be dealt with as if it was a complaint made under that legislation. This appears to be a safe assumption, as it is inconceivable that both parties would be unaware of any hearing, had one occurred. This raises questions about whether, by its conduct in lodging the current complaints, the applicant has waived or abandoned the earlier proceedings. 48 The first respondent assumes that it is possible that the Building Disputes Tribunal dismissed the 2008 complaint. If that is the case, in the absence of a contested hearing, that should not preclude the applicant from relitigating the same matter. The applicable principles are discussed in Civil Procedure, Western Australia, by Kendall and Curthoys, LexisNexis, Butterworths, Australia 1990 at paragraph 20.19.16A as follows: When a question has been disposed of in one civil case, and one of the parties sets up the same question again by bringing new proceedings in a different form in such a way that there is no issue estoppel, the new proceedings may nevertheless be an abuse of the court's process: Reichel v Magrath (1889) 14 App Cas 665 at 668. For the abuse to arise the proponent of the question must have been unsuccessful in the earlier proceeding, the question must have been necessary to have been determined and of importance in the earlier proceedings, and fully argued by proper contradictors leading to a final decision which is not being appealed: Haines v Australian Broadcasting Corp (1995) 43 NSWLR 404 at 414. The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice: State Bank of New South Wales Ltd v Alexander Stenhouse Ltd (1997) Aust Torts Reports [81] [423] at 64, 089 (NSWSC). 49 If there had been no final determination of the issues, an issue estoppel would not arise, nor would the commencement of the subsequent proceedings constitute an abuse of process on the above principles. Although the Building Commission has power under s 7(3)(a) of the BRSCA Act to refuse to accept a complaint which has been the subject of a previous complaint that has been dismissed, the exercise of the discretion to do so should be exercised having regard to the principles outlined above. As there is nothing to suggest that there has been a final decision after full argument from proper contradictions, the making of the 2008 complaint is not a proper basis upon which to refuse to accept the current complaints. 50 If the 2008 complaint remains on foot, the applicant would need to make an informed decision on whether or not it would be permissible to pursue both proceedings, and even if permissible, whether there would be any benefit in doing so, in which event, one or other of the proceedings would need to be withdrawn. 51 When the practical difficulties surrounding the 2008 proceedings were debated during the hearing, the parties accepted that, as it was inevitable that some complaint items would have to be referred back to the Building Commissioner for further action (and it has now been decided that this applies to all items of complaint), the Building Commissioner would need to investigate the status of the 2008 complaint so that a decision could be made, with input from both parties, as to how best deal with the 2008 complaint and the current complaints.
Conclusion and Orders 52 It is common cause that the carrying out of building repairs constitutes the provision of a regulated building service and that, in the absence of any of the criteria prescribed by regulation applying, the date of completion of the regulated building service is the date on which the building service was last carried out. A building service complaint is made out of time if the complaint is made more than six years after the completion of the regulated building service to which the complaint relates. As all of the building work the subject of complaint 2 is accepted by the first respondent to have been carried out within a period of six years prior to 31 October 2013, the whole of that complaint should have been accepted by the Building Commissioner, and the correct and preferable decision on review is that the complaint be accepted pursuant to s 7 of the BSCRA Act. 53 In relation to complaint 1, item 3 is withdrawn. In relation to items 1 and 2 of complaint 1, there is evidence, which is not obviously unsustainable, capable of establishing that the relevant regulated building services were carried out within a six year period prior to lodgement of the complaint. There is insufficient evidence to support a finding that the building service complaint was made out of time and the correct and preferable decision on review is that the complaint be accepted pursuant to s 7 of the BSCRA Act. 54 For the reasons given above, it will be necessary for the Building Commissioner to investigate the status of the 2008 complaint lodged with the Building Disputes Tribunal under reference BDT 16027/2. 55 Finally, it is necessary to deal with costs. Subject to any submissions the parties might make, the Tribunal is inclined to the view that with one qualification, costs should be reserved to be dealt with in the event, which appears likely, that the Building Commissioner decides in due course under s 11 of the BSCRA Act to refer the complaints, or the 2008 complaint, or all of the complaints, to the Tribunal to deal with under s 38 of the BSCRA Act, and/or the BR Act. The ultimate costs order, subject to submissions, may be that the costs be in the cause, but that order cannot be made when it is not known what future course these complaints will take. 56 The qualification referred to is that on 1 November 2013 the Tribunal ordered that the first respondent pay the applicant's costs in relation to an application by the first respondent to adjourn the final hearing listed for hearing on that day and the wasted costs of the adjournment. 57 Accordingly, it is appropriate to list the matter for a further directions hearing to address how the question of costs should be finalised. 58 The Tribunal will accordingly cause orders to issue as follows: 1. The decision of the Building Commissioner made on 11 February 2013 refusing to accept complaints C87142/1 and C87609/1, is set aside and substituted by the decision of this Tribunal that such complaints be accepted pursuant to s 7(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) with the exception of complaint item 3 of complaint C87142/1 (which item is withdrawn). 2. In carrying out the investigation required by s 9 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), the Building Commissioner is directed to clarify the status of the complaint lodged by the applicant with the Building Disputes Tribunal under reference BDT 16027/2 on or about 17 January 2008, and the intention of the parties in relation to that complaint if it remains on foot, so that an appropriate decision may be made in due course by the Building Commissioner pursuant to s 11 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) as to the action to be taken in relation to complaints C87142/1 and C87609/1. 3. The records of the Building Commission in respect of the said complaints must be returned forthwith by the Executive Officer to the Building Commission together with a copy of the Tribunal's reasons for decision and these orders. 4. The matter is otherwise listed for a directions hearing on 5 February 2014 at 11 am to address how the question of costs should be finalised. |