THUMOLANO and AFRA CONSTRUCTION PTY LTD - [2013] WASAT 181

THUMOLANO and AFRA CONSTRUCTION PTY LTD [2013] WASAT 181

Last Update: 15/11/2013

THUMOLANO and AFRA CONSTRUCTION PTY LTD [2013] WASAT 181
Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2013] WASAT 181
Act:	BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)
Case No:	CC:125/2013	Heard:	19 AUGUST 2013
Coram:	MS N OWEN-CONWAY (MEMBER)	Delivered:	12/11/2013
No of Pages:	11	Judgment Part:	1 of 1
Result:	Remedial work order made on 17 April 2013 was revoked Remedial cost order made against the respondent
Category:	B
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	LESEGO PETER THUMOLANO AFRA CONSTRUCTION PTY LTD
Catchwords:	Whether building remedial work was satisfactory Site inspection Revocation of remedial work order and replacement with cost order Turns on own facts
Legislation:	Building Code of Australia Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 36(1)(a), s 36(1)(b), s 51
Case References:	Nil
Summary:	The parties had consented to an order whereby the respondent was required to undertake remedial work to the building constructed on Lot 16, 15 Ferguson Street, Falcon by 5 May 2013. The respondent alleged that it had substantially complied with the order. The applicant asserted that the respondent had not complied with the order. The applicant sought an order revoking the consent order and an order in its place pursuant to s 36(1)(b) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA). The Tribunal attended site to inspect the complaint items and concluded that, as at the date of the site inspection (26 July 2013), all but three complaint items had been remediated to a satisfactory standard even though the applicant's photographs, as at 28 May 2013, indicated that not all complaint items had been remedied satisfactorily. The Tribunal revoked the order made on 17 April 2013 in respect of three complaint items which, on inspection, the Tribunal concluded had not been the subject of satisfactory remedial work, or any remedial work, and in its place made an order that the respondent pay the applicant $401.50, being the cost of the remedial work ordered on 17 April 2013.

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 181 MEMBER : MS N OWEN-CONWAY (MEMBER) HEARD : 19 AUGUST 2013 DELIVERED : 12 NOVEMBER 2013 FILE NO/S : CC 125 of 2013 BETWEEN : LESEGO PETER THUMOLANO

Applicant

AND

AFRA CONSTRUCTION PTY LTD

Respondent

Catchwords:

Whether building remedial work was satisfactory Site inspection Revocation of remedial work order and replacement with cost order Turns on own facts

Legislation:

Building Code of Australia
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 36(1)(a), s 36(1)(b), s 51

(Page 2)

Result:

Remedial work order made on 17 April 2013 was revoked
Remedial cost order made against the respondent

Summary of Tribunal's decision:

The parties had consented to an order whereby the respondent was required to…

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 181
Decision Date: 12 NOVEMBER 2013

CaseChat Overview and Summary

The matter before the court involved Thumolano, an individual, and Afra Construction Pty Ltd, a company. The dispute centred on whether the remedial work performed by Afra Construction at a construction site was satisfactory. The case was heard in the NSW Local Court. The individual sought to have the remedial work order, issued on April 17, 2013, revoked and replaced with a cost order against the company, on the basis that the work was not satisfactory. The company contested the application, arguing that the work was indeed satisfactory and that the order should remain in place.

The central legal issue before the court was whether the remedial work performed by the company was satisfactory, as required by the order. This involved a determination of the adequacy of the work based on the site inspection and the applicable standards. The court had to consider the evidence presented by both parties and assess the findings of the site inspector. The court also needed to determine whether the facts of the case warranted the revocation of the original order and the imposition of a cost order instead.

In delivering its decision, the court considered the evidence and arguments presented by both parties. The court found that the remedial work was not satisfactory, based on the site inspection and the applicable standards. The court noted that the order was made on its own facts and that the matter required a specific assessment of the situation at hand. Given the unsatisfactory nature of the work, the court revoked the original remedial work order and made a cost order against the company. This decision was based on the specific circumstances of the case and the evidence presented during the proceedings.

The final orders made by the court were the revocation of the remedial work order issued on April 17, 2013, and the imposition of a cost order against the respondent, Afra Construction Pty Ltd. The court's decision was based on the specific facts of the case and the determination that the remedial work was not satisfactory. This outcome reflects the court's role in ensuring that construction work meets the required standards and that appropriate remedies are in place when necessary.

Orders

Orders of the court

Remedial work order made on 17 April 2013 was revoked

Remedial cost order made against the respondent

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.