THE OWNERS OF STRATA PLAN 45236 (MIAMI APARTMENTS) and JOHN HOLLAND PTY LTD
[2014] WASAT 92
•18 JULY 2014
THE OWNERS OF STRATA PLAN 45236 (MIAMI APARTMENTS) and JOHN HOLLAND PTY LTD [2014] WASAT 92
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2014] WASAT 92 | |
| 25/07/2014 | |||
| BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA) | |||
| Case No: | CC:466/2013 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR M SPILLANE (SENIOR MEMBER) | 18/07/14 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Building Commissioner's decision set aside and the matter sent back to Building Commissioner for reconsideration | ||
| B | |||
| PDF Version |
| Parties: | THE OWNERS OF STRATA PLAN 45236 (MIAMI APARTMENTS) JOHN HOLLAND PTY LTD |
Catchwords: | Building Services (Complaint Resolution and Administration) Act 2011 (WA) Review of refusal to accept complaint Time limit for complaint |
Legislation: | Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5, s 6(1), s 7, s 8, s 9, s 9(1), s 10, s 11, s 11(1), s 13, s 13(1), s 13(2), s 57(2) State Administrative Tribunal Act 2004 (WA), s 29(3) Strata Titles Act 1985 (WA), s 17, s 32(3)(a), s 33(1), s 35(1)(b) |
Case References: | The Owners of Strata Plan 41133 and Lendlease Project Management and Construction (Australia) Pty Ltd [2014] WASAT 6 |
Orders | On the application heard before Senior Member Maurice Spillane, delivered orally on 18 July 2014 and published on 25 July 2014, it is ordered that:,1. The decision of the Building Commissioner made on 20 March 2013 refusing to accept the applicant's complaint (No C90350) dated 8 February 2013 is set aside and substituted by the decision of this Tribunal, that the complaint be accepted pursuant to s 7(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA).,2. The matter is sent back to the Building Commissioner for reconsideration in accordance with the following directions.,(a) The Building Commissioner is to cause an investigation of the complaint to be carried out by an authorised person as required by s 9 of the Building Services (Complaint Resolution and Administration) Act 2011.,(b) Apart from any matter the Building Commissioner may wish to investigate, that investigation is to identify what regulated building service, if any, was carried out by the respondent in the period 2010/2011 as stated in the complaint dated 8 February 2013.,(c) Having considered the report received from the authorised person in accordance with s 10 of the Building Services (Complaint Resolution and Administration) Act 2011, the Building Commissioner is to make whatever decision he believes appropriate pursuant to s 11 of the Building Services (Complaint Resolution and Administration) Act 2011. |
Summary | The Owners of Strata Plan 45236 applied for leave to review the decision of the Building Commissioner to refuse to accept the complaint lodged under s 5 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA).,On 7 November 2013 the Tribunal granted leave to bring the application and the matter was determined on the documents.,Having considered all of the matters before it, the Tribunal was not satisfied that a proper decision could be made by either the Building Commissioner or the Tribunal on the evidence before it without further investigation.,In the circumstances, the decision of the Building Commissioner to refuse to accept the complaint was set aside and the Commissioner was directed to accept the complaint and carry out an investigation into the items of complaint as per the provisions of the Building Services (Complaint Resolution and Administration) Act 2011 (WA).,This is an edited version of the transcript of oral reasons for decision delivered by the Tribunal on 18 July 2014. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA) CITATION : THE OWNERS OF STRATA PLAN 45236 (MIAMI APARTMENTS) and JOHN HOLLAND PTY LTD [2014] WASAT 92 MEMBER : MR M SPILLANE (SENIOR MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 18 JULY 2014 PUBLISHED : 25 JULY 2014 FILE NO/S : CC 466 of 2013 BETWEEN : THE OWNERS OF STRATA PLAN 45236 (MIAMI APARTMENTS)
- Applicant
AND
JOHN HOLLAND PTY LTD
Respondent
Catchwords:
Building Services (Complaint Resolution and Administration) Act 2011 (WA) Review of refusal to accept complaint Time limit for complaint
Legislation:
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5, s 6(1), s 7, s 8, s 9, s 9(1), s 10, s 11, s 11(1), s 13, s 13(1), s 13(2), s 57(2)
State Administrative Tribunal Act 2004 (WA), s 29(3)
Strata Titles Act 1985 (WA), s 17, s 32(3)(a), s 33(1), s 35(1)(b)
Result:
Building Commissioner's decision set aside and the matter sent back to Building Commissioner for reconsideration
Summary of Tribunal's decision:
The Owners of Strata Plan 45236 applied for leave to review the decision of the Building Commissioner to refuse to accept the complaint lodged under s 5 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA).
On 7 November 2013 the Tribunal granted leave to bring the application and the matter was determined on the documents.
Having considered all of the matters before it, the Tribunal was not satisfied that a proper decision could be made by either the Building Commissioner or the Tribunal on the evidence before it without further investigation.
In the circumstances, the decision of the Building Commissioner to refuse to accept the complaint was set aside and the Commissioner was directed to accept the complaint and carry out an investigation into the items of complaint as per the provisions of the Building Services (Complaint Resolution and Administration) Act 2011 (WA).
This is an edited version of the transcript of oral reasons for decision delivered by the Tribunal on 18 July 2014.
Category: B
Representation:
Counsel:
Applicant : Mr G Rodoreda
Respondent : Mr P Bevilacqua
Solicitors:
Applicant : Jackson McDonald
Respondent : John Holland Pty Ltd
Case(s) referred to in decision(s):
The Owners of Strata Plan 41133 and Lendlease Project Management and Construction (Australia) Pty Ltd [2014] WASAT 6
This is an edited version of the transcript of oral reasons for decision delivered by the Tribunal on 18 July 2014.
Notice of complaint
1 By document dated 8 February 2013, the applicant, being The Owners of Strata Plan 45236 (known as Miami Apartments Kings Park) (applicant), located at 2 Belleview Terrace, West Perth lodged a complaint (No C90350) with the Building Commission against the respondent John Holland Pty Ltd (respondent).
2 In the 'Preamble' of the complaint, on the first page, the applicant stated:
This Notice has arisen because it has become evident that a regulated building service has not been carried out in a proper and proficient manner or being faulty or unsatisfactory and the Respondent has failed to rectify those works.
Although the builder has carried out works to prevent water ingress since the practical completion in about 2004, the regulated services that form the basis of this complaint were carried out in the period of 2010 and 2011. As noted below, the date of completion of those services can be cited as being 17 August 2011.
3 At the bottom of the second page of the complaint it stated:
Be advised that the Complaints are not necessarily invoking the statutory 6 year period from the date of completion of the development but rely on subsequent works that were carried out at various times since then which were intended to alleviate the complaints listed below.
4 On page 3 of the complaint it stated:
For the purposes of this Complaint the Complainant adopts the date of completion of the regulated building services (i.e. the remedial works that remain outstanding) as being on or about 17 August 2011.
5 At pages 5 and 6 respectively under the heading 'Defective Works, Observations', the notice of complaint stated:
The following items are deemed as being, incomplete or not completed in a proper and proficient manner or being faulty or unsatisfactory and shall be rectified by the builder at his expense.
6 And under the heading 'Interior of Units' on page 5, works were listed, and then on page 6, under the heading 'External (Common property)', three items were listed as follows:
10. Planter boxes at main entry and lobby, including leaching from floor tiles at entry at lobby (all leaks assumed to be interrelated)
11. Leaks to Basement apartment 1 garage area
12. Leaks to basement at roller door (may be associated with planter leaking). See item 9.10, and 11, above are likely to be interrelated.
7 The remaining pages of the complaint was made up of attached documents.
8 On 20 March 2013, the applicant received the following letter from the Building Commission which stated:
Dear Sir
Building Service at 2 Belleview Terrace, Kings Park
I, Peter Verrall, an authorised delegate, considered and refused to accept complaint C90350 under the provisions of section 7 of the Building Services (Complaint Resolution and Administration) Act 2011 (the Act) for the following reasons:
• The complaint was not made in accordance with Section 6 of the Act (below), as the building work subject to the complaint has been made out of time:
6. Time limit for complaint
(1) A building service complaint is made out of time if the complaint is made more than 6 years after the completion of the regulated building service to which the complaint relates.
In accordance with section 57(2) of the Act, with the leave of the State Administrative Tribunal (SAT, a person aggrieved by a decision of the Building Commissioner to refuse to accept a complaint may apply to the SAT for a review of the decision.
…
9 The applicant sought reasons for the refusal to accept the complaint and received a further letter from the Building Commission dated 1 May 2013 which stated:
I refer to your letter dated 5 April 2013 requesting reasons for the refusal to accept complaint C90350 (the complaint) and to your application to the State Administrative Tribunal (the SAT) seeking leave to apply for a review of the Building Commissioner's decision.
As described in correspondence dated 20 March 2013 the complaint was refused in accordance with the provisions of section 7 of the Building Services (Complaint Resolution and Administration) Act 2011 (the Act) due to being made out of time.
The view was taken that the complaint documents disclosed that practical completion had been reached in 2004 and that subsequent works did not constitute a new regulated building service enabling the re-starting of the clock, so to speak. In my view no more extensive reasons than this are necessary.
Notwithstanding the effective provision of reason on or about 20 March 2013, the Building Commission's view is that the reasons contemplated by section 21 of the State Administrative Tribunal Act 2004 are those in relation to the final determination of a substantive matter and not in relation to the taking of a preliminary administrative step. …
Application to the Tribunal
10 On 17 April 2013, the applicant filed an application for review pursuant to s 57(2) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) against that decision with the Tribunal. Under the heading 'Decision sought' it stated:
(1) That the SAT gives the complainant leave to make this application to the SAT to review the Building Commissioner's decision not to accept the Complaint's complaint of 16 January 2013
(2) That the SAT orders that the [Building] Commissioner erred in his decision not to accept the Complaint, and that the Complaint be referred to the SAT for determination on the issues in dispute.
11 Following various directions and programming orders by the Tribunal, the following documents and submissions were received:
1) The applicant's statement of issues, facts and contentions, dated 13 June 2013.
2) The respondent's statement of issues, facts and contentions, dated 5 July 2013.
3) The applicant's submissions in support of the complaint in respect of repair work dated 24 July 2013.
4) The respondent's response to submissions dated 6 August 2013.
12 Following receipt of those submissions, as leave was required pursuant to s 57(2) of the BSCRA Act, an application for leave was heard on 7 August 2013, with the Tribunal delivering its decision to grant leave on 7 November 2013.
13 In its reasons for decision the Tribunal stated:
… In the present case the applicant submitted that it was the latter circumstances that applies in that the time should run from the date when the building services was last carried out. The respondent, on the other hand, contended that the work, the subject of complaint, was in relation to the original defect from the time of construction.
…
In its decision of 20 March 2013 the commissioner's delegate simply stated that the complaint had been made out of time. And the letter of 1 May 2013 just referred to earlier said that the view was taken that the complaint documents disclosed that practical completion had been reached in 2004. Apart from the notice of complaint dated 8 February 2013 referred to earlier, it was not clear what, if any, other documents were before the commissioner that enabled him to reach that view.
But in the complaint document, the only reference to practical completion was at paragraph 2 of the complaint, again which was referred to earlier which stated that:
Although the builder has carried out works to prevent water ingress since practical completion in or about 2004.
If the commissioner's decision, as explained in the letter of May 2013, that practical completion had been reached in 2004 was based solely on that paragraph, as appears to be the case, and that the works didn't constitute a new building service, then the applicant was, at the very least, entitled to some reasons, however brief, to explain on what basis the commissioner's delegate had reached that conclusion.
Although it is clear from the letter of 1 May 2013 that the commissioner's delegate was of the view that practical completion had been reached in 2004, to reach that view the commissioner would need to be satisfied pursuant to section 62 and regulation 7(b) that, in respect of that regulated building service, that it was not carried out under a building permit and was carried out under a home building work contract or other contract that provided for a date of practical completion and had, in fact, been brought to practical completion.
Yet no evidence of any building permit or lack thereof or any evidence of any home building work contract or other contract that provided for a date of practical completion appears to have been before the commissioner's delegate to consider. And with no reasons given, it is not possible to determine whether this is correct or whether it should be, in fact, calculated as per section 6(2)(b) of the Act, namely when the building service was last carried out.
…
14 Following the granting of leave, the matter was programmed for further directions, and on 18 November 2013 the Tribunal ordered:
1. On or before 3 December 2013 the applicant is to file with the Tribunal and serve on the respondent:
(a) The issues they say are to be determined at the review hearing and the decisions available to the Tribunal; and
(b) Details of the work complained of which is the subject of the complaint.
2. On or before 17 December 2013 the respondent is to file with the Tribunal and serve on the applicant their response in respect of the matters referred in Order 1 above.
3. The matter is listed for further directions on 19 December 2013 at 2 pm.
15 On 11 December 2013, the applicant filed a document titled 'Applicant's proposal for going forward', which stated:
1. The SAT has requested the Applicant to explain its views on what matters would be relevant within the scope of the current review proceedings.
…
4. Initially, the Applicant sought an order that the Reviewable Decision be set aside, and substituted with a decision under section 16(1) of the Complaints Act that the Complaint be accepted.
5. However, the Applicant necessarily confronts the ambiguities in the Complaint itself, being those issues that have previously been raised by the Tribunal and the Respondent regarding:
(a) the complaint being limited to a complaint about repair work carried out by the Respondent in the period of 2010 and 2011 (as per the statement on page 1 of the complaint);
(b) the complaint appearing to complain about work not carried out to the common property (and therefore, the strata company Applicant having no right to make the complaint); and
(c) ambiguities in what actual repair work is complained of.
6. During the course of the current proceedings before the Tribunal, it has become clear that the Complaint itself, if limited to building repair work carried out by the Respondent to the common property in 2010 and 2011, is of limited significance to the Applicant. Further complaints for works outside of this period and scope will be dealt with in a separate complaint.
- In conclusion the applicant stated:
(a) The SAT list a hearing before a judicial member for a declaration as to the scope of work which is the subject of the Complaint (as referred to in paragraph 5 above); and
(b) following the outcome of that hearing, the Applicant will determine to what extent it wishes to proceed with the Complaint, if at all.
3. The applicant submits that the Tribunal must now proceed to consider the application. That is, having granted leave to review, the Tribunal must now proceed to determine the application which seeks the review of the Building Commissioner's decision to not accept the complaint dated 8 February 2013. This is by way of hearing de novo (s.27 of the SAT Act): see Filimon v Rimmer [2013] WASAT 13 at [18].
4. As the hearing is de novo, the Applicant could have led further evidence. No further evidence was led at the initial hearing of the application. The Applicant has not indicated any intention to lead any further evidence.
5. Accordingly, it is submitted that the Tribunal ought proceed to consider the application on the material presently before it.
6. The application may be allowed or refused and orders made pursuant to s.29(3) of the State Administrative Tribunal Act 2004 (SAT Act).
7. Pursuant to s.29(3) of the SAT Act, the Tribunal, relevantly, may:
i. affirm the decision;
ii. vary the decision; or
iii. set aside the decision and substitute it[s] own decision or remit the matter back to the Building Commissioner to consider again whether the complaint ought be accepted.
8. For the reasons outlined in its SIFC dated 5 July 2013, Submissions and List of Authorities dated 23 July 2013 the Responsive Submissions dated 6 August 2013, the Applicant submits that the Tribunal ought affirm the decision of the Building Commissioner to not accept the complaint.
- And, in conclusion, stated:
20. For the reasons set out above it is submitted that the Tribunal ought proceed to determine the application on the material presently before it and that a declaration of the nature sought by the Applicant is entirely inappropriate.
1. On or before 10 March 2014 the applicant is to identify in writing to the Tribunal and to the respondent the specific regulated building service complained of that was carried out in the years 2010 and 2011.
2. The respondent may on or before 24 March 2014 reply to anything filed by the applicant in compliance with Order 1 above.
3. Following compliance with Orders 1 and 2 above, the matter will be determined entirely on the documents unless either party makes application to bring the matter back on for directions.
18 By letter of 28 February 2014, the applicant wrote to the Tribunal in the following terms:
…
We refer to the Tribunal's orders made at the hearing on 24 February 2014, being the request for the Applicant to particularise the regulated building services within the scope of its complaint dated 8 February 2014 (Complaint).
The Tribunal has indicated that will read the Complaint as only being about work performed by the Respondent to common property in 2010 and 2011, being on a literal reading of the Complaint. Adopting that interpretation, the Complaint does not refer to any work to the common property in the period 2010 to 2011.
On this basis, the Applicant submits that, pursuant to section 29(3)(c) of the SAT Act, the Tribunal should:
(a) set aside the Building Commissioner's refusal to accept the Complaint pursuant to section 7(3)(c) of the Building Services (Complaints [sic] Resolution and Administration) Act (Act), on the basis that it was out of time; and
(b) replace that decision with a refusal to accept the Complaint pursuant to section 7(3)(a) of the Act, as it is not about any regulated building service. This is because the Respondent did not perform any work to the common property in the period to which the Complaint refers.
…
19 The respondent's response received on 25 March 2014 stated:
BACKGROUND
1. By order made on 24 February 2014, the [Tribunal] ordered that the Applicant identify 'the specific regulated building service complained of that was carried out in the years 2010 and 2011' (the Order)
2. By letter dated 28 February 2014 the Applicant purports to comply with the Order.
THE APPLICANT'S PURPORTED IDENTIFICATION OF THE RELEVANT SERVICE
3. The Applicant's statement 'the complaint does not refer to any work, as to the best of the Applicant's knowledge, the Respondent did not perform any work to the common property in the period 2010 to 2011' misconceives the stage of the proceedings and the purpose of the Order.
4. In making this submission, the Applicant seeks to introduce evidence that 'the Respondent did not perform any work to the common property in the period 2010 to 2011'. This is impermissible on the basis that the submission is not evidence and the occasion for the leading of further evidence has passed and no proper application for the leading of fresh evidence has ben made. Furthermore, the Applicant confirmed at the directions hearing on 24 February 2014 that no further evidence would be led.
5. Accordingly, the application falls to be determined on the contents of the complaint the subject of these proceedings.
6. Given the above, it is clear that the Tribunal's Order was confined to the contents of that complaint.
7. The Applicant's response is clearly designed, quite wrongfully it is submitted, to attempt to avoid any possible application of s.7(3)(f) or (g) or s.7(4) of the Building Services (Complaint Resolution and Administration) Act 2011 to any future claim relating to the issues raised in the complaint in these proceedings.
CONCLUSION
8. For the reasons set out above it is submitted that the Tribunal ought proceed to determine the application on the material presently before it and that a declaration of the nature sought by the Applicant is entirely inappropriate.
20 As per Order 3 of 24 February 2014 set out above, the Tribunal was then left to determine the matter on the documents before it.
Legislation
21 The relevant legislation under which the Building Commissioner made the decision under review and under which the matter comes before this Tribunal is the BSCRA Act.
22 Section 5 of the BSCRA Act, under the heading 'Making a complaint about a building service or home building work contract matter', states:
(1) Subject to the regulations, a person may make a complaint to the Building Commissioner about a regulated building service not being carried out in a proper and proficient manner or being faulty or unsatisfactory.
23 Section 6(1) of the BSCRA Act deals with the time limit for a complaint, and states:
A building service complaint is made out of time if the complaint is made more than 6 years after the completion of the regulated building service to which the complaint relates.
24 Section 7 of the BSCRA Act, under the heading 'Preliminary decision by Building Commissioner', states:
(1) After receiving a complaint under section 5 the Building Commissioner must decide whether, and to what extent -
(a) to accept it; or
(b) to refuse to accept it.
(2) The Building Commissioner may make such inquiries as are appropriate to enable the making of a decision under this section.
(3) The Building Commissioner may refuse to accept a complaint under subsection (1) if
…
(c) the complaint is made out of time as referred to in section 6[.]
1) The Building Commissioner may, in writing, require a person making a complaint under section 5 to do either or both of the following -
(a) give the Building Commissioner further details about the complaint;
(b) verify any details about the complaint by statutory declaration.
Having accepted a building service complaint or a HBWC complaint, the Building Commissioner must cause an investigation of the complaint to be carried out by one or more authorised persons.
27 Section 10 of the BSCRA Act under the heading 'Report on complaint' states:
(1) An authorised person -
(a) must prepare a report on an investigation carried out under section 9; and
(b) may include in the report recommendations as to the manner in which the complaint should be dealt with; and
(c) must give the Building Commissioner a copy of the report.
The Building Commissioner must consider any report given to the Building Commissioner under section 10 and may, subject to the other provisions of this section -
(a) dismiss the complaint; or
(b) commence a conciliation proceeding under Division 3; or
(c) deal with the complaint under section 37 or 42, as the case requires; or
(d) refer the complaint to the State Administrative Tribunal for it to deal with under section 38 or 43, as the case requires.
29 Section 13(1) and s 13(2) of the BSCRA Act deal with the withdrawal of a complaint, and state:
(1) A building service complaint or a HBWC complaint may, subject to this section, be withdrawn by the complainant.
(2) The complaint may be withdrawn even though the Building Commissioner has commenced or completed an investigation of the complaint, but cannot be withdrawn if the complaint has been referred to the State Administrative Tribunal.
30 As the applicant in the present case is a strata company, particular provisions of the Strata Titles Act 1985 (WA) (ST Act) are also relevant.
31 Section 17 of the ST Act under the heading 'Ownership of common property' states:
Common property shall be held by the proprietors as tenants in common in shares proportional to the unit entitlements of their respective lots.
32 Section 32(3)(a) of the ST Act states:
A strata company -
(a) is capable of suing and being sued[.]
33 Section 33(1) of the ST Act, under the heading 'Strata company is representative of proprietors in proceedings', states:
Where the proprietors of the lots the subject of a scheme are jointly entitled to take proceedings against any person or are liable to have proceedings taken against them jointly (any such proceedings being proceedings for or with respect to common property), the proceedings may be taken by or against the strata company and any judgment or order given or made in favour of or against the strata company in any such proceedings shall have effect as if it were a judgment or order given or made in favour of or against the proprietors.
34 Finally, s 35(1)(b) of the ST Act states:
A strata company shall
control and manage the common property for the benefit of all the proprietors[.]
35 Although the complaint, as outlined earlier, included both internal areas (which appeared to be part of various lots) and external areas (which were part of the common property), the Tribunal notes the applicant's submissions dated 24 July 2013, at paragraphs 14 to 16, where it stated:
14. The Applicant acknowledges that it only has standing to make a Complaint in respect of the Apartment Building common property (section 32 of the Strata Titles Act 1985 (WA) (STA))
15. The Applicant acknowledges that some of the Repair Work is work carried out only to the Apartment 5 lot (being work done to the external surfaces inside apartment 5). That repair work has been listed for the reason that work was part of the same body of work carried out in the Respondent's efforts to effect the Repair Works. The defects in that work are not subject of the Complaint.
16. The Complaint is about common property; the main subject of the Complaint is defective waterproofing repair work carried out to the internal structure of the Apartment Building and roof decking area.
36 Having regard to the sections of the ST Act set out above, the Tribunal agrees with the applicant's acknowledgement that it only has standing to make a complaint in respect of the common property.
37 However, by letter dated 28 February 2014, filed in answer to the Tribunal's orders of 24 February 2014, and in particular order 1, which required:
On or before 10 March 2014, the applicant is to identify in writing to the Tribunal and to the respondent the specified regulated building service complained of that was carried out in the years 2010 and 2011[,]
- the applicant's representative stated:
[t]he Tribunal has indicated that [it] will read the Complaint as only being about work performed by the Respondent to common property in 2010 and 2011, being on a literal reading of the Complaint. Adopting that interpretation, the Complaint does not refer to any work, as to the best of the Applicant's knowledge the Respondent did not perform any work to the common property in the period 2010to 2011.
39 Although it is true that the Tribunal had drawn the parties' attention to the provisions of the ST Act at a directions hearing and the fact that the applicant, being the strata company, appeared to only have the ability to bring proceedings with respect to common property, the applicant itself, in paragraphs 14 to 16 of its submissions of 24 July 2013, set out above, clearly acknowledged that to be the position.
40 Furthermore, the assertion by the applicant's representative in the letter that to the best of the applicant's knowledge the respondent did not perform any work to the common property in the periods 2010 and 2011, is puzzling in light of the clear statement in the second paragraph of the preamble of the complaint and the list of works relating to the common property at items 10, 11 and 12 at page 6 of the complaint.
41 In any event that assertion is at best a submission/contention and not evidence, and to now accept it as a fact without any evidence being put before the Tribunal and to then set aside the Building Commissioner's refusal to accept the complaint as being out of time and to replace it with a refusal to accept the complaint on different grounds based solely on such a submission/contention would, in the Tribunal's view, not be allowable and be incorrect.
42 As the respondent stated at paragraph 5 of its submissions of 25 March 2014:
Accordingly, the application falls to be determined on the contents of the complaint the subject to these proceedings.
43 The Tribunal concurs with that submission.
44 However, if what is contended in the letter of 28 February 2014 is actually the case, then it is open to the applicant, pursuant to s 13 of the BSCRA Act, to withdraw part or all of the complaint.
45 The Tribunal is at a distinct disadvantage in attempting to determine the matter when, apart from the various submissions referred to, the only documents it has before it are the complaint that was before the Building Commissioner dated 8 February 2013, the Building Commissioner's decision of 20 March 2013, and the letter of the Building Commissioner dated 1 May 2013 headed 'Reasons for Decision'.
46 As stated in that letter of 1 May 2013:
The view was taken that the complaint documents disclosed that practical completion had been reached in 2004 and that subsequent works did not constitute a new regulated building service enabling the re-starting of the clock, so to speak. (Tribunal's emphasis)
47 There was no evidence before the Tribunal to show that copies of any contract or other documents were before the Building Commissioner to enable him to determine a date of practical completion and, without further investigation, the Tribunal finds it difficult to see how the Building Commissioner could reach the view he did.
48 The second paragraph of the preamble appears to be the only place that practical completion was mentioned, however, that paragraph also states that the regulated services that formed the basis of the complaint were carried out in the period 2010/2011, which would put them within the six year period prior to the date of complaint.
49 It appears that no further information or verification pursuant to s 8 of the BSCRA Act was sought by the Building Commissioner, or that any investigation occurred pursuant to s 9, nor a report prepared pursuant to s 10.
50 If all those steps were taken and the issues properly clarified, then, at that point in time, the Building Commissioner may, pursuant to s 11 of the BSCRA Act, dismiss the complaint, deal with the matter himself, or refer the matter to this Tribunal.
51 It is clear by his comments in the letter of 1 May 2013 that the Building Commissioner saw the refusal to accept the complaint as made out of time as a preliminary administrative step, and he then went on to state:
If your application for leave is successful, I consider it likely that the matter would be returned to the Building Commission for investigation and determination in accordance with section 11 of the Act.
52 The Commissioner's decision therefore appears to be based on very little evidence. Indeed, nothing was put before the Tribunal to show otherwise and no evidence was put before the Tribunal to allow it to properly consider the matter itself.
53 In the matter of The Owners of Strata Plan 41133 and Lendlease Project Management and Construction (Australia) Pty Ltd [2014] WASAT 6 (Owners of Strata Plan 41133 and Lendlease), the Tribunal, in dealing with a similar issue, stated at [15] to [24]:
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.
The question then arises as to the quality of material required to found such a decision.
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.
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.
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.
The question on review is whether, having regard to all of the additional information provided by the parties, a positive decision can be made.
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.
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.
If the parties conduct a thorough hearing calling all relevant witnesses, and test the evidence through crossexamination, 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.
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. …
54 This Tribunal agrees and adopts that reasoning. In the present case, the complaint, as badly drafted as it was, did assert that the regulated building services that formed the basis of the complaint were carried out within the last six years.
55 Furthermore, similar to the situation in TheOwners of Strata Plan 41133 and Lendlease, despite this Tribunal's repeated requests that the applicant identify in writing to both the Tribunal and the respondent the specific regulated building services complained of that were carried out in the years 2010/2011, nothing apart from the contention discussed earlier in the letter of 28 February 2014, which the Tribunal is not willing to accept as evidence, was received, and no detail was provided to allow the Tribunal to form a view without further investigation.
56 Fortunately, under the legislation, such investigation is possible and, in the Tribunal's view, in the circumstances of this case, necessary.
57 Section 29(3) of the State Administrative Tribunal Act 2004 (WA) sets out the avenues open to the Tribunal in dealing with this matter, and states that the Tribunal may:
(a) affirm the decision that is being reviewed; or
(b) vary the decision that is being reviewed; or
(c) set aside the decision that is being reviewed and -
(i) substitute its own decision; or
(ii) send the matter back to the decision-maker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate,
and, in any case, may make any order the Tribunal considers appropriate.
58 The Building Commissioner appears to have made a decision based solely on the information in the complaint, and there is no evidence that the Building Commissioner required the applicant to give any further details about the complaint or verify any details by way of statutory declaration as he could have done pursuant to s 8 of the BSCRA Act.
59 Unfortunately, as outlined above, despite the Tribunal's request, no additional details about the complaint were put before the Tribunal either.
60 In the circumstances, the Tribunal is of the view that as the complaint clearly asserts that the regulated building services forming the basis of the complaint were carried out in the period 2010/2011, and no evidence was before either the Commissioner or the Tribunal that that was not the case, the Building Commissioner's decision of 20 March 2013 should be set aside and the matter sent back to the Building Commissioner for reconsideration with specific directions to investigate the matter, and the following orders will be made.
Orders
1. The decision of the Building Commissioner made on 20 March 2013 refusing to accept the applicant's complaint (No C90350) dated 8 February 2013 is set aside and substituted by the decision of this Tribunal, that the complaint be accepted pursuant to s 7(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA).
2. The matter is sent back to the Building Commissioner for reconsideration in accordance with the following directions.
(a) The Building Commissioner is to cause an investigation of the complaint to be carried out by an authorised person as required by s 9 of the Building Services (Complaint Resolution and Administration) Act 2011.
(b) Apart from any matter the Building Commissioner may wish to investigate, that investigation is to identify what regulated building service, if any, was carried out by the respondent in the period 2010/2011 as stated in the complaint dated 8 February 2013.
(c) Having considered the report received from the authorised person in accordance with s 10 of the Building Services (Complaint Resolution and Administration) Act 2011, the Building Commissioner is to make whatever decision he believes appropriate pursuant to s 11 of the Building Services (Complaint Resolution and Administration) Act 2011.
I certify that this and the preceding [60] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR M SPILLANE, SENIOR MEMBER
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