Twinbrook Corporation Pty Ltd v WMP Pty Ltd - [2012] WASC 41

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: TWINBROOK CORPORATION PTY LTD -v- WMP PTY LTD [2012] WASC 41

CORAM: HALL J

HEARD: 12 SEPTEMBER 2011

DELIVERED : 13 FEBRUARY 2012

FILE NO/S: GDA 2 of 2011

BETWEEN: TWINBROOK CORPORATION PTY LTD
Appellant
AND
WMP PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram  :MR B DE VILLIERS (MEMBER)
File No  :CC 858 of 2010

Catchwords:

Appeal from State Administrative Tribunal - Builders' Registration Act 1939 (WA) - Complaint regarding building work - Orders for remedial work or compensation - Whether order in favour of previous owner was open - Whether necessary to prove loss

Legislation:

Builders' Registration Act 1939 (WA)
Building Services (Registration) Act 2011 (WA)
Home Building Contracts Act 1991 (WA)
Interpretation Act 1984 (WA)
Rules of the Supreme Court 1971 (WA)
State Administrative Tribunal Act 2004 (WA)

Result:

Leave to appeal refused

Category: B

Representation:

Counsel:

Appellant: Mr N F Manuchehri
Respondent: No appearance

Solicitors:

Appellant: Civic Legal
Respondent: No appearance

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

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Harrison v Melham (2008) 72 NSWLR 380
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Re Bolton; Ex parte Beane (1987) 162 CLR 514
Twinbrook Pty Ltd and WMP Pty Ltd [2008] WASAT 279

HALL J:

Introduction

This is an application for leave to appeal from a decision made by the State Administrative Tribunal (SAT) on 17 January 2011 pursuant to s 105 of the State Administrative Tribunal Act 2004 (WA). On that day the SAT dismissed an application by the appellant for review of a decision of the Building Disputes Tribunal (BDT).
An appeal from a decision of the SAT may only be brought on a question of law: s 105(2). The ground of appeal asserts that the SAT erred in law in determining that the appellant did not have standing to bring the application for review in the SAT or the original application in the BDT.
In essence the appellant submits that the SAT incorrectly interpreted s 12A(1)(b) of the Builders' Registration Act 1939 (WA). The error is said to be in interpreting that sub‑section as only permitting an order to be made in favour of the current owner of a building. The section relates to complaints made that building work has not been carried out in a proper and workmanlike manner. It provides for such complaints to be dealt with by the BDT and for the BDT to make orders in certain circumstances for remedial work to be undertaken or for a builder to pay for the cost of such work.
In the present case, the appellant was the developer of three units and had contracted for the building work on those units to be performed by the respondent. The units together formed a strata plan development. A complaint was brought by the appellant in relation to work on all three of the units and on common property. An initial decision by the BDT was set aside on appeal to the SAT and the matter remitted back for reconsideration. This caused a delay in finalising the complaint.
When the complaint came to be finally dealt with by the BDT the appellant was the owner of only one of the three units. The BDT made an order only in respect of the unit owned by the appellant and otherwise dismissed the complaint. That decision was again appealed but was not disturbed by the SAT. It is that final decision that is the subject of this appeal.
The appellant submits that the proper construction of s 12A(1)(b) is that the BDT can make an order in favour of a party for whom building work was performed, even if that party no longer holds the legal title to the property. On this basis it is submitted that the appellant had standing to bring a complaint in respect of all three units and the common property and that an order that the respondent pay the costs of remedying the building work on all of the units and the common property should have been made in favour of the appellant.
The respondent did not participate in the appeal. A notice of intention to take part in the appeal was filed but was rejected because it was not filed by a lawyer. The respondent, being a company, was obliged to comply with O 4 r 3 of the Rules of the Supreme Court 1971 (WA), and appoint a legal representative. Subsequent attempts by the court to communicate with the respondent were unsuccessful. There was no appearance by any person on behalf of the respondent at the hearing of the appeal. Accordingly, the appeal proceeded without the participation of the respondent: Rules of the Supreme Court O 65 r 4(2)(e).

Background

In or around 2006 the appellant engaged the respondent to construct three units in Scarborough pursuant to a cost plus contract. For present purposes it is sufficient to note that a cost plus contract is a contract which entitles a builder to recover actual costs in acquiring materials and performing work specified in the contract plus a margin and/or percentage fee on those costs: Home Building Contracts Act 1991 (WA) s 3.
Upon completion of the units the appellant alleged that the building work conducted by the respondent was unsatisfactory. By letter dated 31 October 2006 the appellant served a notice on the respondent requiring it to remedy a series of items that was said not to have been carried out in a proper and workmanlike manner. In particular, it was said that the external render and finish on the units was unacceptable. The letter allowed ten days for the respondent to complete the remedial work.
Before the period stipulated in the notice had expired the appellant filed a complaint with the BDT. That complaint was filed on 1 November 2006 and was pursuant to s 12A of the Builders' Registration Act. A further complaint was filed on 4 December 2006 attaching reports from a building consultant in respect of the three units. In effect, the second complaint particularised the first and made reference to some additional items. These complaints were the subject of a Builders' Registration Board Inspection Report dated 16 February 2007.
The complaints were heard by the BDT on 28 and 29 June 2007. The BDT delivered its decision on 13 November 2007. The BDT stated that it had no jurisdiction to determine any breach of contract issues that may have arisen between the parties due to the fact that they had executed a cost plus contract: s 3 and s 17(1)(a)(i) of the Home Building Contracts Act. That conclusion was not challenged and I make no comment on whether it was correct. Accordingly, the only issue for determination by the BDT was whether the work carried out by the respondent was unsatisfactory within the meaning of s 12A of the Builders' Registration Act and, if so, what orders were to be made to remedy that work.
The respondent conceded that some remedial work was required, however it disputed the amount of work needed and the cost of such work. For reasons which are not presently material, the BDT found that the claim made by the appellant was excessive and made an order that the respondent pay a substantially smaller sum than that sought by the appellant.
The appellant then sought leave to review the decision of the BDT to the SAT. On 24 November 2008 the SAT set aside the decision of the BDT and referred the matter back to the BDT for reconsideration. The principal ground on which the review was allowed was that there had been a lack of procedural fairness in respect of the way in which the BDT had assessed the costs of the remedial work: see Twinbrook Pty Ltd and WMP Pty Ltd [2008] WASAT 279. It is unnecessary to refer to that review in greater detail as the issue raised on this appeal did not arise at that point.
A further hearing was conducted in the BDT on 4 and 5 November 2009. One of the issues raised at that hearing was whether the BDT had jurisdiction to make an order in relation to the units that were not owned by the appellant. Whilst the appellant had originally owned the whole of the land and had engaged the respondent to do the building work, two of the units had been sold to unrelated parties on 21 and 27 November 2007 respectively. Accordingly, whilst the appellant had been the owner of all of the units at the time the complaints were first filed, by the time of the second BDT hearing it was only the owner of one of them.
In its reasons for decision published on 25 May 2010 the BDT dealt with the issue of ownership in the following way:
The respondent claims that the Tribunal has no jurisdiction to make an order in relation to the units that are no longer owned by the complainant, and refers to a decision of the Tribunal in Djuric and Aquatic Leisure Technologies Pty Ltd, a decision of this Tribunal dated 24 April 2008. This is too restrictive view of the powers of the Tribunal. Section 12A of the Act allows the Tribunal to make an order in favour of any person, not just the current owner. There must, of course be some basis for making the order, but the ownership is (sic) of the premises the subject of the complaint is not the only basis.
Indeed it is noted that Mr Saulsman has stated to the Tribunal that the contracts of sale for each of the units sold has held back $10,000 for defects. However, the Tribunal is not provided with the sales contracts, valuations or other information that will allow the Tribunal to ascertain the complainant's liability, if any.
In any event, the BDT made an order that related only to the unit still owned by the appellant. This was not on the basis that the jurisdiction of the BDT only allowed for an order in respect of property currently owned by the appellant. Rather, it was because the Tribunal found that the only acceptable assessment of costs was the one submitted by the respondent in regard to the unit still owned by the appellant.
The appellant then lodged a further application to the SAT for leave to review the second decision of the BDT. That application was refused by the SAT on 17 January 2011 and the appellant was further ordered to pay the respondent's costs. The appellant raised a number of grounds in the SAT for challenging the decision of the BDT, but I will refer only to those that are relevant to the present appeal.
The appellant submitted to the SAT that it had brought the original complaints as the developer. It submitted that the only issues to be considered were whether there was poor workmanship and, if so, the amount that must be paid to rectify that problem. The appellant acknowledged that it had suffered no loss and that no claim had been made by the owners of the other two units against sums of $10,000 that had been held back at the time of the sale of each of those units.

Reasons of the SAT

In regards to the issue of ownership, the SAT said:
The application is misconceived and spurious. The applicant, who was a developer but is now the owner of one of three units, is seeking compensation for work to be done not only on his unit but also on the units of other owners and on common property. He is, however, not authorised to act on behalf of the other owners or on behalf of the strata company. He also admits that he has not received from the other owners or from the strata company a claim for compensation, and neither has he suffered any loss for work that he had to do or caused to be done on the other units or common property.
In essence, and pursuant to section 12A of the act, the applicant is of the view that, since he was the original developer, he is entitled, and remains entitled, to compensation for all possible rectification, even if he is not the owner of the common property or the other two units and even if he has not been required by the new owners to undertake remedial work.
In order to have had any likelihood of success, the applicant had three options available: acting as agent or with authorisation of the other owners and the strata company to bring these proceedings against the respondent; or demonstrating that he has suffered loss for work done on the other units and common property and that he was claiming for such loss; or limiting the claim to his own unit. He persisted with an ambit claim that never had any serious chance of success.
The BDT did not err by finding that the applicant had only demonstrated a valid claim in regard to his own unit, and that is consistent with the finding of the BDT (ts 6).
The SAT further stated:
The tribunal further notes the evidence that some of the rectification work that was required had already been done by the respondent, some of the work had been done by the owners of the other units and some of the work had been done after an insurance claim had been paid out. The applicant did not account for any of these aspects in his claim. He insisted, in the face of all arguments and developments, that he was entitled to a sum exceeding $163,000 (ts 7).

Appellant's contentions

There is a single ground of appeal which reads as follows:
That the Tribunal erred in law in determining the appellant did not have standing to bring the application for review and the application before the Building Disputes Tribunal.
In written and oral submissions the appellant contended that the decision of the SAT was to the effect that it was a pre‑condition to applying for or obtaining relief under s 12A(1)(b) that the appellant must be the owner of the properties in question or acting on behalf of the owners. The appellant submitted that s 12A(1)(b) should not be so interpreted. It was submitted that by narrowly interpreting the word 'owner' where it appears in s 12A(1)(b) the SAT had found that the appellant did not have standing in respect of the claims for rectification work on property he did not own.
The appellant submitted that a broader interpretation of s 12A was consistent with the statutory purpose and the intention of the parliament. It was submitted that if the term 'owner' in s 12A(1)(b) is given a narrow interpretation this would mean that where the client had on‑sold a faulty or unsatisfactory building a subsequent owner could seek monetary compensation from a builder even though he or she did not originally contract with the builder and may have purchased the property at a discount. It was suggested that subsequent owners in such circumstances could effectively obtain a windfall.
It was further submitted that the SAT erred by holding that it was a pre‑condition of being able to apply for an order that the builder pay the cost of remedying faulty or unsatisfactory work under s 12A(1)(b) that the appellant has suffered an actual loss equivalent to the sum that is sought. The appellant asserts that there is no such express requirement in the Act and it would be inconsistent with the consumer protection purpose of s 12A if such a requirement was imposed.

The merits of the appeal - standing

Standing, or locus standi, is the term used to refer to the entitlement of a person or organisation to invoke the jurisdiction of a court or tribunal to hear a case. The issue of standing most often arises where a person seeks to prevent the violation of a public right or to enforce a public duty, rather than vindicating a private right. However, that is not the context here. In this case the issue is one of who can invoke the jurisdiction of the BDT. That is a question that requires an examination of the terms of the relevant Act.
The jurisdiction of the BDT under s 12A is invoked by the making of a complaint. A complaint can be made by 'any person': s 12A(1). The orders that may be made by the BDT differ depending on the nature of the complaint and who brings it, but this does not detract from the way in which its jurisdiction is invoked. The fact that the BDT, in the exercise of its jurisdiction, may only be able to make orders in respect of certain classes of person does not mean that a finding that a complainant does not fall within those classes is a finding as to standing.
It is clear from the SAT's reasons that it did not make a ruling that the appellant did not have standing in the way that the ground of appeal suggests. The SAT did not hold that the appellant must be either the current registered owner or an authorised agent of such a person in order to make a complaint of faulty or unsatisfactory work. The question was not whether the complaint was procedurally valid but what orders the BDT could make.
Furthermore, the SAT allowed for the possibility that orders could be made under s 12A(1)(b) in favour of a person who was neither the owner or an agent of the owner, but who had suffered some loss in respect of the unsatisfactory or faulty work. In the present case, no such loss was established. Whether that view of s 12A(1)(b) is correct is something I will consider below, but this approach demonstrates that the SAT was not concerned with the question of standing but with what orders could properly be made.

The merits of the appeal - Interpretation of s 12A

Section 12A of the Builders' Registration Act relevantly provides as follows:
12A.Order to remedy unsatisfactory building work
(1)Where on complaint being made to it by any person, including the Board, the Disputes Tribunal is satisfied that any building work has not been carried out in a proper and workmanlike manner by reason that the building work is faulty or unsatisfactory the Disputes Tribunal may by order in writing served on the person who carried out the building work order him to -
(a)remedy the faulty or unsatisfactory building work within such reasonable time as is specified in the order; or
(b)pay to the owner of the building such costs of remedying the building work that is faulty or unsatisfactory as the Disputes Tribunal considers reasonable in which case any costs so ordered by the Disputes Tribunal constitute a debt to the owner and are recoverable by him in a court of competent jurisdiction.
(1a)Where, on complaint being made to it by a person for whom building work has been carried out, the Disputes Tribunal is satisfied that in some respect (other than its being faulty or unsatisfactory) the building work has not been carried out in a proper and workmanlike manner the Disputes Tribunal may, having regard to the extent of the failure to carry out the building work in a proper and workmanlike manner in relation to the whole of the building work, by order in writing served on the person who carried out the building work order him to -
(a)remedy the building work that has not been carried out in a proper and workmanlike manner within such reasonable time as is specified in the order; or
(b)pay to the person for whom the building work was carried out -
(i)such costs of remedying the building work that has not been carried out in a proper and workmanlike manner as the Disputes Tribunal considers is reasonable; or
(ii)such sum of money as the Disputes Tribunal considers reasonable to compensate him for the failure to carry out the building work in a proper and workmanlike manner,
and any costs or sum of money so ordered to be paid constitutes a debt due to the person to whom it is so ordered to be paid and is recoverable by him in a court of competent jurisdiction.
(1aa)The Disputes Tribunal shall not have power to make an order under this section in respect of any building work following a complaint in respect of that work, unless such complaint is made before the expiration of 6 years from the time when the building work was completed; and for the purposes of this subsection, building work is completed when the building to which the work relates becomes fit for occupation in a free and uninterrupted manner.
...
(4a)If the Disputes Tribunal is satisfied that an order to remedy building work -
(a)made by the Disputes Tribunal under subsection (1)(a) or (1a)(a);
[(b)deleted]
has not been complied with, or has been complied with in part only, by the person on whom it was served, whether or not he has on that account been convicted of an offence under subsection (4), the Disputes Tribunal may -
(c)revoke the order in relation to that building work or the part in question; and
(d)make an order under subsection (1)(b) or (1a)(b), as the case may be, in relation thereto.
...
(6)Nothing in this section has the effect of limiting, restricting or otherwise affecting any right or remedy a person would have had had this section not been enacted but in hearing and determining any matter in which a builder or other person against whom or which an order has been made under this section and a person for whom building work has been carried out are parties a court may have regard to any order made by the Disputes Tribunal under this section.

The Builders' Registration Act has now been repealed by the Building Services (Registration) Act 2011 (WA). However, the Builders' Registration Act was the applicable legislation in respect of this matter at the relevant time. Section 12A of the Builders' Registration Act was introduced by the Builders' Registration Act Amendment Act 1975 (WA).
Section 12A divides complaints into two types. Firstly, those that relate to faulty or unsatisfactory work: s 12A(1). Secondly, those which relate to work which is not said to be faulty or unsatisfactory but is alleged to have been otherwise not carried out in a proper and workmanlike manner: s 12A(1a)
Each sub‑section provides for the BDT to make specific orders in the event that it is satisfied that the building work in question fails to meet the standard referred to. The relevant standard, as I have noted, is different in each sub‑section.
The types of orders available under each sub‑section are similar, but not identical. Significantly, for present purposes, the BDT may make an order that the builder pay the cost of remedial work to 'the owner' under s 12A(1)(b) or to 'the person for whom the building work was carried out' under s 12A(1a)(b). There is also the possibility under s 12A(1a) of making a compensation order to the person for whom the building work was carried out: s 12A(1a)(b)(ii). There is no similar provision under s 12A(1).
The circumstances in which orders under the two sub‑sections can be made differs not only in regard to the standard of work but also in regard to who brought the complaint. In respect of s 12A(1) orders can be made where a complaint is made by 'any person', whereas in respect of s 12A(1)(a) orders can only be made where a complaint has been made by a person for whom building work has been carried out.
It was submitted by the appellant that the purpose of s 12A(1a) was to deal with circumstances where builder‑constructed buildings failed to meet the client's contractual specifications and plans but the work itself was otherwise satisfactory. It was suggested, however, that the sub‑sections were not intended to differentiate between the classes of people who were entitled to relief. For this reason, it was contended that the reference in s 12A(1)(b) to an order to pay the owner of the building should be read as if it were broad enough in its terms to allow the BDT to make an order similar to that allowed for in s 12A(1a)(b) to make a payment to the person for whom the building work has been carried out. That is to say, such orders should not be confined to the current registered owner of a property.
There are several reasons why the appellant's contentions cannot be accepted. Firstly, as has been referred to, the wording of the two subsections is distinctly different. It cannot be assumed that this is of no consequence. Section 12A(1) allows for an order to be made for the builder to pay the owner the cost of remedying work that is faulty or unsatisfactory. This can be done in respect of a complaint brought by 'any person'. Section 12A(1)(a) allows for an order to be made for the builder to pay the person for whom the work was carried out the cost of remedying work that was not carried out in a proper and workmanlike manner or compensation for that failure. Such orders are only open in respect of a complaint brought by the person for whom the work was carried out and where the BDT is satisfied that the work is in some respect not proper or workmanlike, but is not faulty or unsatisfactory. Thus, if the BDT is satisfied that the work is faulty or unsatisfactory any orders must be under s 12A(1) and not s 12A(1)(a). The division and the nature of the available orders seem to be deliberate and it cannot be assumed that the sub‑sections were intended to have something other than their apparent meaning.
Secondly, the word 'owner' has an obvious and clear meaning. The word is not defined in the Act and there is no reason to think it is used in any special way in this context. The Shorter Oxford English Dictionary defines 'owner' as 'a person who owns something; a proprietor'. When used, as here, in the present tense it must mean the person with legal title to the property at the time the order comes to be made. To extend the meaning, as the appellant suggests, not merely to prior owners but to persons who may have contracted with the builder to conduct the work would be to interpret the word in a way which is not consistent with its ordinary meaning. Indeed, it would be to include within the meaning of 'owner' a class of persons for whom the legislation appears to have made separate provision in s 12A(1a). There appears to be no reason why the legislature would have used the word 'owner' if it intended to include those who may have contracted with a builder (other than the owner) in circumstances where it used different words to refer to such people in s 12(1a).
Thirdly, the court is required to construe the provision in the context of the statute as a whole preferring a construction that would promote the purpose or object underlying the statute: s 18 Interpretation Act 1984 (WA). Regard may be had to extrinsic material that is capable of assisting in the construction of a provision in order to confirm that the ordinary meaning of the words used is correct or to determine a meaning where the provision is ambiguous or obscure or when the ordinary meaning would lead to a result that is manifestly absurd or unreasonable: s 19 Interpretation Act. There is an obvious reason why there is a distinction between s 12A(1) and s 12A(1a); that is, that the person who will directly suffer as a result of faulty or unsatisfactory workmanship will be the owner at the time the fault is discovered. Regardless of any contractual arrangements, it will be that person who will need the faulty or unsatisfactory work to be remedied either by an order for remedial work or for payment of the cost of such work. In contrast, where work is not objectively faulty or unsatisfactory but is considered to be not proper or workmanlike because (for example) it fails to meet agreed specifications, this implies a failure to meet contractual obligations. In these circumstances, the loss will likely fall upon the person who contracted the work, who may or may not be the owner.
Fourthly, the scheme of s 12A appears to be that the remedies for those who have contracted with a builder and seek to complain about the work are limited to contractual disputes which do not relate to faulty or unsatisfactory work. On the face of it there would seem to be good reason why issues that are only contractual in nature should be referrable to the contracting parties. That is not to deny the possibility that the person who contracted with a builder may also be exposed to loss (or liability to others) for faulty or unsatisfactory work, but the legislation deals with such work in a different way. If it was intended that the liability of builders for faulty or unsatisfactory work would extend beyond the current owner then words could have been used that would achieve that end.
In my view, there is no need to refer to the extrinsic material, the provisions of s 12A being clear. Nor do I accept that the ordinary meaning of s 12A(1)(b) would lead to a result that is manifestly absurd or unreasonable. Nonetheless, reference may be had to extrinsic materials in order to determine whether the ordinary meaning is correct. See CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408.
The appellant refers to the parliamentary debates in relation to the introduction of s 12A and, in particular, that those debates did not differentiate between the use of the term 'owner' in s 12A(1) and the phrase 'persons for whom the building work was carried out' in s 12A(1a). Having examined Hansard of the relevant debates it would not appear to me that any assistance can be gained in this regard. The records of debates do appear to confirm that the purpose of s 12A(1a) was to address the problem of building work that did not meet plans and specifications but was not otherwise faulty or unsatisfactory. However, they do not assist one way or the other with the question of whether it was intended that the remedies would be available to a broader class of persons under s 12A(1)(a) than under s 12A(1). In any event, caution should be exercised in respect of such debates: see Re Bolton; Ex parte Beane (1987) 162 CLR 514, 518 (Mason CJ, Wilson and Dawson JJ); Harrison v Melham (2008) 72 NSWLR 380, 399 (Mason P). The fact that the parliamentary debates emphasised the consumer protection purpose of s 12A does not in itself lead to a conclusion that the term 'owner' should be interpreted in the way that is suggested by the appellant.

The merits of the appeal - is loss required?

The BDT and SAT did not, in fact, interpret s 12A(1)(b) as confining the BDT to making orders for payment in favour of the current registered owner. They both allowed for the possibility that an order in favour of another person could be made provided that some loss was established. For the reasons I have given, I doubt the correctness of this view, but it only favoured the appellant. However, even if the BDT and SAT were correct in their interpretation the appellant must still fail. In order to explain why I need to refer to the appellant's argument in respect of this issue.
The appellant submits that an entitlement to the benefit of an order under s 12A does not depend upon whether actual loss or damage has been suffered. It is submitted that such a pre‑condition would be inconsistent with the consumer protection purpose of the section because it would not result in builders being held accountable for substandard work in any of the following situations: (1) where the owner is prepared to live with faulty or unsatisfactory work; (2) where the owner is able to perform the remedial work themselves; and (3) where the original owner has on‑sold the property to a third party who has not made any claims against the original owner but has reserved his right to do so in the future. This could mean that the original owner would be exposed to a claim against it after the expiration of the period allowed to that person to complain to the BDT: s 12A(1aa).
The first two examples do not involve loss in any way that can be readily understood as being capable of remedy by orders from the BDT. As regards the third example, it involves the assumption of a contractual relationship between parties which may or may not exist. As against this example it is possible to imagine a circumstance in which a previous owner makes a claim for unsatisfactory work against a builder for which he is compensated but in respect of which the current owner never makes a claim against the previous owner. In this circumstance, the previous owner would receive a windfall. There would also be the obvious difficulty of knowing which owner is to be compensated. If the property has passed through several hands before a complaint for unsatisfactory work is resolved, is the builder potentially liable to each of the owners for a claim for unsatisfactory work? Clearly it could not be expected that the BDT would have to determine liability as between the various owners.
The most obvious way of dealing with this problem is to limit any claim to the current owner. This is the interpretation I prefer. If, however, the provision is to be interpreted more broadly (as the SAT impliedly assumed) then there must still be some practical limitation placed upon it, and the most obvious such limitation is the incurring of some loss (or at least, some liability).
As is evident from the excerpts from the reasons of the BDT and the SAT, there was no evidence adduced by the appellant which enabled a conclusion that it had incurred loss. Indeed, it admitted that no such loss had been incurred and no claims made against it by the owners of the other two units. Insofar as there was a reference to a contingent liability of up to $10,000 (being funds held back in respect of the new owners of the other two units) the BDT noted that it had not been provided with any sales contracts, valuation or other information that allowed it to ascertain whether the appellant had any such liability.

Conclusion

The question of leave in relation to an appeal of this nature was considered by Buss JA in Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361. Generally, to obtain leave to appeal against a SAT decision the appellant must identify some question of law which is relevant to the granting of the relief sought on appeal. The appellant must show that there is a real or significant argument on such a question of law to the extent that there is sufficient doubt about it to justify a grant of leave. However, those guidelines are not rigid or exhaustive and leave should be granted if, in all the circumstances of the case, a grant of leave is in the interests of justice: Paridis [17] ‑ [18].
In the present case, a grant of leave is not in the interests of justice. The question of law that was identified in the ground of appeal is not one that arose in the decision of the SAT. The SAT did not rule that the appellant did not have standing because it was not the owner in respect of two of the units. Rather it ruled that the orders sought by the appellant could not be made because the appellant was neither the owner, agent of the owner or a person who had suffered loss in respect of the unsatisfactory work other than in respect of the unit that it owned.
In any event, in my view, insofar as the SAT ruled that the appellant did not have the right to the benefit of an order for payment under s 12A(1)(b) because it was not the owner or an agent of the owner, that conclusion was not wrong.
Even if I am wrong and s 12A(1) does permit orders to be made in favour of persons other than the current owner, it must be meaningfully constrained as applying only to those persons who can demonstrate that they have suffered a loss, or liability for loss, in respect of the unsatisfactory work. In this regard, the appellant could not succeed as there were unchallenged findings that it had suffered no loss and had been the subject of no claims against it. And further, as regards potential liability, the BDT held that there was insufficient evidence to establish the existence of any such liability. In these circumstances, the appellant could not be the beneficiary of an order for payment in respect of remediation work regardless of how broadly s 12A(1)(b) is construed.
In my view, it has not been demonstrated that the SAT made any error of law. If there was an error in regard to the interpretation of s 12A(1) then it was to construe that provision too broadly, not too narrowly. Any such error only favoured the appellant and was not, therefore, material to the outcome.
Leave to appeal is, therefore, refused.