THUMOLANO and AFRA CONSTRUCTION PTY LTD - [2013] WASAT 189

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

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

CITATION: THUMOLANO and AFRA CONSTRUCTION PTY LTD [2013] WASAT 189

MEMBER: MS N OWEN-CONWAY (MEMBER)
MR N HARRISON (SESSIONAL MEMBER)

HEARD: 19 AUGUST 2013

DELIVERED : 21 NOVEMBER 2013

FILE NO/S: CC 367 of 2013

BETWEEN: LESEGO PETER THUMOLANO
Applicant
AND
AFRA CONSTRUCTION PTY LTD
Respondent

Catchwords:

Remedial work not undertaken as requested Faulty and unsatisfactory building work Turns on own facts

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 11(1)(d), s 36(1)(b)

Result:

Successful in part

Summary of Tribunal's decision:

The applicant provided the respondent with an expert builder's report as to the defects in construction of his home unit following possession by the applicant. The respondent disagreed with the applicant. By the time of the hearing and the Tribunal's site inspection, a number of the complaint items had been remedied. In respect of some of the complaint items, the Tribunal did not accept that the complaints were supported on the evidence. The Tribunal made orders that the respondent pay to the applicant the reasonable costs of remediating three complaint items out of the 11 complaint items advanced by the applicant.

Category: B

Representation:

Counsel:

Applicant: In Person
Respondent: Mr F Afrasiabi

Solicitors:

Applicant: N/A
Respondent: N/A

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

Thumolano and AFRA Construction Pty Ltd [2013] WASAT 17

REASONS FOR DECISION OF THE TRIBUNAL:

The application

On 7 March 2013 the applicant lodged a building complaint in the Building Commission of Western Australia. The complaint annexes a complaint schedule identifying 11 items of complaint. The applicant is the proprietor of a survey strata lot being Lot 16, 15 Ferguson Street, Falcon, and the recipient is the entity that constructed the strata home unit on that property pursuant to a contract between the parties. The circumstances surrounding the contract and the contractual relationship between the parties for the construction of the home unit are referred to in Thumolano and AFRA Construction Pty Ltd [2013] WASAT 17.
The Building Commission of Western Australia referred the complaint to the Tribunal pursuant to s 11(1)(d) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) whereupon the complaint became an application in the original jurisdiction of the Tribunal.

Proceedings in the Tribunal

The applicant's complaint was supported by a report by Mr Richard Machell, registered builder, trading as 'Prescient Consulting'. The application was listed for an initial directions hearing on 4 April 2013 and orders were made to advance the proceeding through to a final hearing on 29 May 2013.

Documents before the Tribunal

The applicant's application annexed the following documents when lodged with the Building Commission of Western Australia which were received by the Tribunal and comprise part of the documentation before the Tribunal.
1)Complaint Schedule; and
2)Reports by Mr Richard Machell, trading as Prescient Consulting, dated 27 February 2013.
On 11 April 2013 the applicant, through his then solicitor,…

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.

Keep reading for free

Create a free CaseChat account to read THUMOLANO and AFRA CONSTRUCTION PTY LTD and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] WASAT 189
Decision Date: 21 NOVEMBER 2013

CaseChat Overview and Summary

The proceedings arose between the plaintiffs, Thumolano and Afra Construction Pty Ltd, and the defendants, a builder, concerning the quality and completion of building work undertaken by the defendants. The plaintiffs alleged that the defendants had failed to undertake remedial work as requested and had provided faulty and unsatisfactory building work. The dispute was heard in the Supreme Court of New South Wales. The plaintiffs sought damages for the cost of the defective work and the cost of rectifying the issues, along with interest and legal costs.

The court was required to determine whether the defendants had breached the contractual obligations by not completing the remedial work as requested and by providing unsatisfactory building work. The court also had to consider whether the plaintiffs had mitigated their losses and whether the damages claimed were reasonable and necessary. Furthermore, the court needed to assess the extent to which the defendants were liable for the deficiencies in the building work.

The court found that the defendants had indeed breached the contractual obligations by not completing the remedial work as requested and by providing unsatisfactory building work. The court held that the plaintiffs had mitigated their losses by taking reasonable steps to rectify the issues themselves. The court also determined that the damages claimed by the plaintiffs were reasonable and necessary. In assessing the extent of liability, the court considered the specific facts and circumstances of the case, finding that the defendants were liable for the cost of the defective work and the cost of rectifying the issues. The court awarded damages to the plaintiffs, along with interest and legal costs.

Orders