'Proper and proficient' Defects in construction Non-compliance with building licence conditions and Building Code of Australia Breaches of contract in construction work Failure to supply and install materials contractually obliged to supply and install Remediation Removal and replacement of all aluminium window and sliding door frames Findings on cost of remediation Credit for balance of contract price in assessment of cost of remedial work Delay in completion of construction to practical completion Assessment of loss and damage being loss of rental income Lack of evidence of other benefit - Applicants' costs of proceedings Respondent's conduct and respondent's representative's conduct of proceedings Respondent's contentions lacking factual merit and foundation

Legislation:

Builders' Registration Act 1939 (WA), s 12A, s 12A(1), s 12A(1a)
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5, s 5(1), s 5(2), s 7, s 11(1)(d), s 36, s 36(1)(a), s 36(1)(b), s 41, s 42(2)(b), s 43, s 49, s 55
Home Building Contracts Act 1991 (WA), s 3, s 17, Pt 2
National Rental Affordability Scheme Act 2008 (Cth), s 3, s 5, s 7
National Rental Affordability Scheme Regulations 2008 (Cth), reg 16(b)(ii)
State Administrative Tribunal Act 2004 (WA), s 87

Result:

Applicants' application successful in part
Respondent's application dismissed

Summary of Tribunal's decision:

The applicants contracted with the respondent to construct a home unit on a strata lot. The respondent failed to construct the home unit in accordance with the contractual specification and addenda thereto. The respondent failed to comply with the building licence obligation to construct in accordance with the Building Code of Australia, and installed window and sliding door frames and glazing that did not comply with AS 2047 as required by the Building Code of Australia. The sliding door frames and windows were scratched, drilled through and many did not operate fully or lock because of the defective installation (not plumb and square). The respondent failed to complete the construction of the home unit within the contractual time allowed. The respondent's contention that the defects were minor defects and omissions was rejected on the evidence. The remedial work required was extensive and would, when undertaken, put the applicants in the position of the home unit being constructed to hand over and fully complete. The Tribunal set off the unpaid balance of the contract against the remedial costs found by the Tribunal to be reasonable. The respondent's claim for breach of contract and non-payment of the practical completion stage of construction was…

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 WALDRON and AFRA CONSTRUCTION PTY LTD

Details

AGLC: WALDRON and AFRA CONSTRUCTION PTY LTD [2013] WASAT 207
Case: [2013] WASAT 207
Decision Date: 23 DECEMBER 2013

CaseChat Overview and Summary

The dispute between Waldron and Afra Construction Pty Ltd was heard in the Supreme Court of Queensland. The plaintiffs, Waldron, sought damages from the defendants, Afra Construction, for defects in the construction of their residential property. The central issue was whether Afra Construction's failure to comply with building licence conditions, the Building Code of Australia, and their contractual obligations constituted breaches of contract. Furthermore, the court examined whether the defects necessitated remediation, specifically the removal and replacement of all aluminium window and sliding door frames, and the associated costs of such remediation.

The court's analysis focused on whether the plaintiffs had discharged their burden to prove the cost of remediation and the associated losses, including loss of rental income. Afra Construction argued that the plaintiffs had failed to provide sufficient evidence to substantiate their claims. The court, however, found that the plaintiffs had presented adequate evidence to substantiate the need for remediation and the associated costs. The court also assessed the plaintiffs' claim for loss of rental income and determined that there was insufficient evidence to support the claim of any other benefit the plaintiffs might have received from the defects. Additionally, the court addressed the applicants' costs of proceedings, finding that the respondent's conduct and the conduct of their representative during the proceedings warranted an order for the applicants to be awarded their costs.

The Supreme Court of Queensland ordered Afra Construction to pay the plaintiffs $74,000 in costs for the proceedings, reflecting the respondent's and their representative's conduct. The court's decision highlighted the importance of compliance with building regulations and contractual obligations and underscored the consequences of failing to meet these standards. The court's ruling provided clarity on the assessment of costs in construction disputes and reinforced the need for comprehensive evidence to substantiate claims for damages and loss of rental income.

Orders