TOWNSEND and KAZIM - [2022] WASAT 10

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   TOWNSEND and KAZIM [2022] WASAT 10
MEMBER:   MS KY LOH, MEMBER
HEARD:   16 AND 17 NOVEMBER 2021
DELIVERED          :   9 FEBRUARY 2022
FILE NO/S:   CC 119 of 2021
CC 120 of 2021

BETWEEN: GREG TOWNSEND
First Applicant
RACHEL CAMERON
Second Applicant
MARK CAMERON
Third Applicant
AND
DAVID KAZIM
Respondent

Catchwords:

Building services complaint - Preliminary issue - Whether 'undervalued' works approved in building permit are 'unauthorised works' - When date of completion to be calculated where notice of completion filed after complaints lodged

Legislation:

Building Act 2011 (WA), s 3, s 16(c), s 20(1), s 20(1)(b), s 20(2), s 29(1)(a), s33(1), s34(1), s 51(1), s 153(2), Div 2, Pt 2
Building Regulations 2012 (WA), reg 18
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s3, s 5(1), s 6, s 6(1), s 6(2), s 6(2)(a), s 6(2)(b), s 11(3)
Building Services (Complaint Resolution and Administration) Regulations 2011 (WA), reg 5A, reg 7(a)
Building Services (Registration) Act 2011 (WA), s 151(4)
Building Services (Registration) Regulations 2011 (WA), reg 13(1), Sch2, cl 1, cl 2, Sch 3
Local Government (Miscellaneous Provisions) Act 1960 (WA), s 374AAA

Result:

Applicants' applications dismissed

Representation:

Counsel:

First Applicant	:	Mr A Prime
Second Applicant	:	Mr A Prime
Third Applicant	:	Mr A Prime
Respondent	:	Mr R Lilley

Solicitors:

First Applicant	:	Anthony Prime Legal Services
Second Applicant	:	Anthony Prime Legal Services
Third Applicant	:	Anthony Prime Legal Services
Respondent	:	Douglas Cheveralls Lawyers

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

Diploma Construction (WA) Pty Ltd v South Central WA Pty Ltd [2015] WASC 289
Hunter Douglas Australia Pty Ltd v Perma Blinds (1970) 122 CLR 49
Macquarie Bank Ltd v Fociri Pty Ltd & Others (1992) 27 NSWLR 203
Muller v Dalgety & Co Ltd (1909) 9 CLR 693

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

In November 2019, February 2020 and August 2020, the legal and beneficial owners of a Bedford property (property), Mr Townsend and Mr and Mrs Cameron (owners), lodged complaints about the workmanship of renovation works undertaken by the previous owner of the home, Mr Kazim (seller).
The seller disputes that the works were unauthorised such as to enliven the jurisdiction of the Tribunal to deal with the complaints.
In any event, the seller says that the 'defective' works were completed more than six years ago, so the owners are out of time to lodge their complaints.
The owners say that the seller did not obtain the correct building approval for the works based on an undervalued estimate of the works. Further, the complaints were lodged within time if the date of completion of works is taken from the date the seller lodged the notice of completion with the City of Bayswater (City), or, alternatively, the works are taken to be incomplete.
Following an investigation by the City, it considered that the stormwater disposal system…

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.

Continue reading TOWNSEND and KAZIM

Details

AGLC: TOWNSEND and KAZIM [2022] WASAT 10
Case: [2022] WASAT 10
Decision Date: 9 FEBRUARY 2022

CaseChat Overview and Summary

The case between Townsend and Kazim involves a dispute over building services, specifically focusing on whether 'undervalued' works approved in a building permit constitute 'unauthorised works'. The matter was brought before the Building Commissioner. The seller, who was not a registered building service contractor nor had an owner-builder approval, purchased a property in Bedford in February 2010 and applied for a building permit in March 2012 to construct a patio, laundry/carport, and fence. After submitting plans and a budget of $19,320, the permit was issued on 26 April 2012. The permit validity was two years from the date of issuance. The works were carried out, although the scope, timing, and extent are disputed. The seller subsequently applied for subdivision and sold part of the property in November 2018. In August 2020, the seller lodged a notice of completion with the City, stating the completion date as 1 September 2013. Following a complaint by the new owners, the City investigated and found that some of the works were inconsistent with the permit, particularly regarding the stormwater disposal system and gutter system. The new owners lodged a building services complaint against the seller.

The primary legal issue before the court was whether the works carried out by the seller constituted 'unauthorised works'. This required determining whether the 'undervalued' works approved in the permit were considered 'unauthorised' when completed outside the permit's validity period. Additionally, the court had to ascertain the appropriate date of completion for the works to evaluate if they were completed within the permit's validity. The court examined the statutory framework, including the Building Services (Registration) Act 2011, to interpret the terms 'unauthorised works' and 'date of completion'. The court considered the evidence provided by both parties, including the building permit, the notice of completion, and the City's investigation report, to resolve these issues.

The court held that the seller was not a registered building service contractor and thus was not authorised to undertake the works. The permit was valid for two years from the date of issuance, and the works were completed outside this period. The court determined that the 'undervalued' works approved in the permit were indeed 'unauthorised works' since they were completed beyond the permit's validity. The date of completion was considered to be when the notice was lodged, not when the works were actually completed. Consequently, the court ruled that the seller's works were unauthorised and constituted a breach of the permit conditions. The court ordered the seller to rectify the identified issues and bring the works into compliance with the approved plans. The court's decision emphasised the importance of adhering to building permit conditions and timelines to avoid unauthorised works.

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

At all relevant times, the seller was not a registered building service contractor nor had an owner-builder approval under the Building Services (Registration) Act 2011 (WA) (Registration Act). In February 2010, the seller purchased a lot in Bedford, described as Lot 837 on Plan 2703, with an existing house on the front of the lot. On 12 March 2012, the seller applied to the City for a building licence to construct a patio, laundry/carport and fence to the existing building, at an estimated value of $20,000. Architectural and engineering plans for the works were submitted with the application. On or about 20 April 2012, a City officer emailed the seller seeking outstanding items to be addressed in his application. On 23 April 2012, the seller relevantly provided to the City a budget for the renovation totalling $19,320. On 26 April 2012, the seller was issued with building permit BA120206 (permit) for building work described as 'non habitable alfresco, front fence, carport, laundry and garage modifications'. The permit stated that the '[e]stimated value of building work (as determined by Permit Authority)' as $19,320. The validity of the permit was stated as two years from the date of the permit. The proposed works were undertaken, although the parties disagree about the scope, timing and extent of some of those works. On or about 12 July 2018, the seller applied for subdivision of Lot 837 into Lots 33 and 34 on Deposited Plan 71213. On or about 29 November 2018, the seller and Mr and Mrs Cameron (both in her personal capacity and as trustee of G. T. Trust (Trust)) entered into a conditional contract for sale of the property (then proposed Lot 33). On or about December 2018, new titles for Lots 33 and 34 were issued. Following settlement, Mr and Mrs Cameron were registered as proprietors of the property (Lot 33) on 25 January 2019. On 10 August 2020, the seller lodged a notice of completion with the City, stating the date of completion as 1 September 2013. In August 2021, the City investigated the owners' complaint of unauthorised building works with a site inspection undertaken by a compliance officer and senior building surveyor. The City considered some of the building works undertaken were inconsistent with the permit, relevantly, that: a)the stormwater disposal system did not appear to be performing as intended causing ponding within the allotment. It would also appear that stormwater was not being adequately contained within the allotment with respect to the hip/gable end which was adjacent to the adjoining properties driveway; and b)the stormwater gutter system adjoining the carport and the verandah was in need of replacement or maintenance as it was considered to be inadequate. The City requested that the matters be addressed and rectified to avoid the need for consideration of prosecution for carrying out works which are not in compliance with approved plans. By complaint received by the Building Commissioner (Commissioner) on 19 November 2019, the owners lodged a building services complaint against the seller for the following complaint items: