THORP and D2R PTY LTD - [2023] WASAT 64

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   THORP and D2R PTY LTD [2023] WASAT 64
MEMBER:   MS KY LOH, MEMBER
MS M EAST, MEMBER
MR C MARSH, SESSIONAL MEMBER

HEARD:   22 AND 23 FEBRUARY 2023
DELIVERED          :   17 JULY 2023
FILE NO/S:   CC 1136 of 2022
BETWEEN:   JOHN THORP
First Applicant
LEONORA D'ORAZIO
Second Applicant
AND
D2R PTY LTD
Respondent

Catchwords:

Building services complaint - Home building work contract complaint - Whether owners took early possession of works - Whether complaint items constitute incomplete works - Whether departure from approved plans constitute unsatisfactory work

Legislation:

Building Act 2011 (WA), s 3
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(1), s 5(2), s 7(1), s 9(1), s 10(1), s 11(1)(d), s 36(1), s 36(1)(a), s 36(1)(b), s 36(1)(c), s 38, s 38(1)(a), s 38(1)(b), s 43, s 43(1)(a), s 43(1)(b), Div 2
Building Services (Registration) Act 2011 (WA), s 3, s 11
Building Services (Registration) Regulations 2011 (WA), reg 3, reg 13
Home Building Contracts Act 1991 (WA), s 3(1), s 17, s 41(2), s 41(2)(d)
Home Building Contracts Regulations 1992 (WA), reg 2A
State Administrative Tribunal Act 2004 (WA), s 47(1)(a), s 87(1)

Result:

Application partially allowed

Category: B

Representation:

Counsel:

First Applicant	:	In Person
Second Applicant	:	In Person
Respondent	:	In Person

Solicitors:

First Applicant	:	N/A
Second Applicant	:	N/A
Respondent	:	N/A

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

Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32; (2016) 213 LGERA 81
Wolfenden and Mandurah Homes Pty Ltd [2020] WASAT 127 (S)

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Mr Thorp and Ms D'Orazio entered into a contract with D2R Pty Ltd to build a granny flat on their property in Balga in July 2021.
They had been impressed with an example of a granny flat previously constructed by the builder, but their trust in the builder began to erode when they realised the granny flat had been constructed for a worker of the builder.
The relationship between the owners and the builder became so precarious that a physical altercation ensued between Mr Thorp and the builder's director, Mr Zubowicz, on the day that the owners expected to resume possession of the building site.
The owners claim 52 items of defective building works and failures to comply with the contract for which they primarily seek monetary orders against the builder, as well as costs.
The builder says that the owners have taken early possession of the works without the builder's written agreement, and so the works are at the owners' risk.
We agree that some of the complaint items relate to incomplete works for which the builder has lost the opportunity to complete due to the taking of early possession, rather than being works that were performed in a manner which was not proper or proficient or was faulty or unsatisfactory.
However, there are some works that are…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] WASAT 64
Decision Date: 17 JULY 2023

CaseChat Overview and Summary

Thorp and D2R Pty Ltd were the parties in dispute before the tribunal. Thorp, the owner of a property, filed a complaint against D2R Pty Ltd, the builder, alleging multiple issues with the construction of a dwelling. The dispute was heard by the tribunal which was established under the Building Registration Act. The central issues before the tribunal were whether the owners took early possession of the works, whether the complaint items constituted incomplete works, and whether the departure from approved plans constituted unsatisfactory work.

The tribunal began by clarifying the scope of its jurisdiction. It noted that certain complaints raised by Thorp were not part of the original complaint to the Building Commissioner and therefore could not be considered. Additionally, the tribunal did not have jurisdiction over complaints seeking disciplinary action against the builder, as these had not been referred by the Commissioner. The tribunal then turned to the substantive issues. It considered the definition of 'builder work' and 'principal builder' under the Building Registration Regulations and the definition of 'home building work' and 'home building work contract' under the Contracts Act. The tribunal also examined the meaning of terms such as 'proper', 'proficient', 'faulty', and 'unsatisfactory' in the Macquarie Dictionary Online.

After considering the evidence and submissions from both parties, the tribunal found that Thorp did not take early possession of the works. It also found that certain items of complaint did not constitute incomplete works. Regarding the departure from approved plans, the tribunal determined that while there were some deviations, they did not amount to unsatisfactory work. The tribunal concluded that the builder had not breached the terms of the home building work contract.

The tribunal ordered that the complaint be dismissed and that Thorp bear the costs of the proceedings. The tribunal emphasised the importance of ensuring that complaints are properly referred to the Building Commissioner and the tribunal, and that the scope of the tribunal's jurisdiction is understood by all parties.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Under s 11 of the Building Registration Act, only building service contractors are entitled to carry out a 'prescribed building service', which is relevantly prescribed in the Building Services (Registration) Regulations 2011 (WA) (Building Registration Regulations) to include 'builder work as a principal builder'. In turn, relevantly, under the Building Registration Regulations:•'builder work' means, under reg 13, building work:a)for which a building permit is required; andb)with a value of $20,000 or more based on the value of the work estimated under Schedule 2; andc)carried out in an area of the State set out in Schedule 3; d)but does not include certain types of building work (which are not applicable to these proceedings).•'principal builder' is defined under reg 3 as a person who carries out, or undertakes to carry out, the builder work for another person. 'Home building work' is relevantly defined under s 3(1) of Contracts Act to include the whole or part of the work of constructing a dwelling (part (a) of the definition) or placing a dwelling on land (part (b) of the definition). A 'home building work contract' is relevantly defined as a contract between a builder and an owner for the performance by the builder of home building work for an amount payable under the contract of more than $7,500, and not equal or more than $500,000: s 3(1) definition of 'home building work contract' under the Contracts Act and reg 2A of the Home Building Contracts Regulations 1992 (WA). In the Macquarie Dictionary Online (as at 17 July 2023), the following terms carry the following meanings:•'proper' is relevantly defined as '… 2. conforming to established standards of behaviour or manners; correct or decorous[.]';•'proficient' is relevantly defined as '1. well advanced or expert in any art, science, or subject; skilled[.]';•'faulty' is relevantly defined as '1. having faults or defects; faulty workmanship'; and•'unsatisfactory' is defined as 'not satisfactory; not satisfying specified desires or requirements; inadequate'. At the outset of the hearing, we brought to the owners' attention that their complaint schedule filed with the Tribunal on 15 October 2022 had added an additional item of complaint (item 52) which was not included in their original complaint to the Building Commissioner on 24 June 2022. As the Tribunal's jurisdiction is enlivened upon the Commissioner referring the original complaint, we are unable to consider any additional item of complaint that did not form part of the original complaint filed with the Commissioner. Further, as to items 41, 42 and 43 of the owners' original complaint schedule, they allege that the builder's conduct gives rise to disciplinary action, and seek orders to that effect. At the hearing, we also brought to the owners' attention that these items were not referred by the Commissioner to the Tribunal as part of a disciplinary complaint under Div 2 of the Act, and so we do not have jurisdiction to determine the complaints raised under those items.