Vitte and Studio 8 Builders & Designers Pty Ltd - [2013] WASAT 43

VITTE and STUDIO 8 BUILDERS & DESIGNERS PTY LTD [2013] WASAT 43

Last Update: 08/04/2013

VITTE and STUDIO 8 BUILDERS & DESIGNERS PTY LTD [2013] WASAT 43
Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2013] WASAT 43
Published:	02/04/2013
Act:	BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)
Case No:	CC:2048/2012	Heard:	15 MARCH 2013 LAST DOCUMENT RECEIVED 21 MARCH 2013
Coram:	MS L WARD (MEMBER)	Delivered:	22/03/2013
No of Pages:	26	Judgment Part:	1 of 1
Result:	Application successful
Category:	B
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	EDGAR VITTE SVETLANA VITTE STUDIO 8 BUILDERS & DESIGNERS PTY LTD
Catchwords:	Variation under contract Variation under Home Building Contracts Act 1991 (WA) Variation by agreement Turns on own facts
Legislation:	Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5, s 41(2), s 43, s 43(1), s 49 Home Building Contracts Act 1991 (WA), s 5(2), s 7, s 7(3), s 8, s 12, s 17, s 20, s 27(1), Sch 1, cl 5 State Administrative Tribunal Act 2004 (WA), s 32(4), s 87(1)
Case References:	Elvidge Pty Ltd v BGC Construction Pty Ltd [2006] WASCA 264 Frankowiak and Chambers [2012] WASAT 175 GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd (2003) 128 FCR 1 Hoskins and Daniel Vinci T/As D'Vinci Contracting [2011] WASAT 188 Jones v Dunkel (1959) 101 CLR 298
Orders:	On the application heard before Member Lisa Ward on 22 March 2013, it is ordered that: 1. The Tribunal declares that a specified amount, namely $7,874, is not payable to the respondent under the contract and, as it has already been paid, an order is made that the builder repays that amount. 2. The respondent pay the cost of the applicant's Housepect Report, namely $800. 3. By close of business on 5 April 2013 the respondent pay to the applicant the total of $8,674.
Summary:	The central issue in this case is whether the sum of $7,874, which the builder, Mr Ken Sopp of Studio 8 Builders & Designers Pty Ltd, claimed from the owner, Mr Edgar Vitte, as a variation in August 2011, is due from the owner. The owner claims that he is not liable to pay $7,874 in summary because earthworks, apart from a small specified portion, were excluded from the contract. The owner submits that he never agreed expressly or impliedly to any additional work beyond the piling and footing work, which he approved of in contract variation item 3695 on 13 December 2010. The builder says that he was entitled to the sum of $7,874 because the owner changed the levels on the block after the contract was signed and excavation was later required to the rear of the yard. Based on the evidence before the Tribunal, the earthmover, Mr Rick Gleeson of Alpha Earthmoving, did two lots of work on the block. The first work was done by Alpha Earthmoving in mid December 2010, and it relates to the concrete footing and pile work,…

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: [2013] WASAT 43
Decision Date: 2 APRIL 2013

CaseChat Overview and Summary

Vitte and Studio 8 Builders & Designers Pty Ltd involved a dispute between a homeowner and a builder over variations to a contract for construction services. The case was heard in the Western Australian Civil and Administrative Tribunal. The central issue was whether the variations to the original contract were lawful under the Home Building Contracts Act 1991 (WA) and whether they constituted a binding agreement between the parties. The homeowner argued that the variations were not properly authorised and were excessive, while the builder contended that the variations were agreed upon and necessary to complete the project.

The tribunal examined the statutory requirements for variations under the Act, focusing on whether the variations were reasonably required for the proper execution of the work. It also considered the contractual provisions governing variations and whether there was a mutual agreement between the parties. The tribunal found that while the statutory requirements were not strictly adhered to, the variations were reasonably necessary and had been agreed upon by both parties. This agreement was evidenced by correspondence and actions that demonstrated mutual assent to the changes.

Consequently, the tribunal ruled in favour of the builder, holding that the variations were valid and binding under the circumstances. The application for review was dismissed, and the tribunal confirmed that the variations were lawful and did not constitute a breach of contract. As a result, the orders made were that the application was successful, and the variations were upheld.

Orders

Orders of the court

Application successful

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

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