Willis and Fletcher - [2015] WASAT 95

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)

CITATION: WILLIS and FLETCHER [2015] WASAT 95

MEMBER: MR C RAYMOND (SENIOR SESSIONAL MEMBER)

HEARD: 2 JUNE 2015

DELIVERED : 31 AUGUST 2015

FILE NO/S: CC 334 of 2015

BETWEEN: LEONARD WILLIS
Applicant
AND
BRADLEY JOHN FLETCHER
Respondent

Catchwords:

Building Services (Complaint Resolution and Administration) Act 2011 (WA) Application for leave to apply for internal review under s 58(2) Criteria for grant of leave Whether Tribunal erred in finding that painting work was not carried out in a proper and proficient manner or was faulty or unsatisfactory Whether respondent complied with relevant standards applicable to nature of work Whether Tribunal erred in finding that respondent warranted that the surface was suitable to undertake painting work

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5, s 5(1), s 58(2)
Building Services (Registration) Regulations 2011 (WA), reg 31

Result:

Application for leave refused

Summary of Tribunal's decision:

The applicant applied for leave pursuant to s 58(2) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) to review a decision by the Tribunal made on 12 February 2015 in terms of which the applicant was held liable to the respondent for certain painting works having not being carried out in a proper and proficient manner or being faulty and unsatisfactory.
After consideration of all the grounds of review and the submissions made in support thereof, the Tribunal concluded that it had not been demonstrated that there was an arguable case that the original Tribunal had erred, or that there was any sufficient doubt as to the correctness of its decision, and, consequently, that no substantial injustice would result if leave were not to be granted.
The application for leave was accordingly dismissed and the matter listed for a directions hearing to enable the matter to be programmed to a final hearing on the question of quantum.

Category: B

Representation:

Counsel:

Applicant: Mr A K Searle
Respondent: In Person

Solicitors:

Applicant: Searle Lawyers
Respondent: N/A

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

Filimon and Rimmer [2013] WASAT 13
Goldfields Homes Pty Ltd v Blacker [1999] WADC 71
Lyons & Anor v Jandon Constructions, unreported SC of WA Library No 980394 dated 20 July 1998
Myran Holdings Pty Ltd and Bombak [2013] WASAT 20
Vulin and Bamboozle (WA) Pty Ltd T/as Bamboozle [2014] WASAT 55
Waldron and Afra Construction Pty Ltd [2013] WASAT 207

REASONS FOR DECISION OF THE TRIBUNAL:

The application for leave to review

On 12 February 2015 the Tribunal, constituted by senior sessional member Ms K Lang and sessional member Mr P Mittonette, delivered reasons for decision finding that Mr Leonard Willis, a painting contractor, was liable in respect of a complaint made by Mr Bradley John Fletcher that Mr Willis had carried out certain painting services for Mr Fletcher at 47 Orangedale Road, Lesmurdie, in the State of Western Australia, in a manner which was not proper…

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 Willis and Fletcher

Details

AGLC: Willis and Fletcher [2015] WASAT 95
Case: [2015] WASAT 95
Decision Date: 31 AUGUST 2015

CaseChat Overview and Summary

Willis and Fletcher is a case in which the applicant sought leave to apply for internal review of a decision made by the Building and Construction Industry Complaints Resolution Tribunal, under section 58(2) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA). The dispute arose from a complaint regarding the quality of painting work carried out by the respondent. The core issue was whether the Tribunal had erred in concluding that the painting work was not performed in a proper and proficient manner, was faulty, or was unsatisfactory, and whether the respondent complied with relevant standards applicable to the nature of the work. Additionally, the case questioned whether the Tribunal had erred in finding that the respondent warranted that the surface was suitable for painting work.

The court was required to determine if the Tribunal had applied the correct legal principles in its assessment of the painting work's quality and whether the Tribunal's findings were supported by the evidence presented. It also needed to consider whether the Tribunal had appropriately interpreted the statutory criteria for granting leave to apply for internal review. The court examined the evidence and the Tribunal's reasoning to assess whether the Tribunal had erred in its conclusions regarding the respondent's compliance with industry standards and the warranty of the surface suitability for painting.

The court found that the Tribunal had correctly applied the relevant legal principles and that its findings were supported by the evidence. The court held that the Tribunal did not err in concluding that the painting work was not carried out in a proper and proficient manner, was faulty, or was unsatisfactory. Furthermore, the court found that the Tribunal had correctly determined that the respondent did not comply with relevant standards applicable to the nature of the work. The court also found that the Tribunal did not err in concluding that the respondent warranted that the surface was suitable for painting work. Consequently, the court dismissed the application for leave to apply for internal review.

In conclusion, the court upheld the Tribunal's decision, finding that the Tribunal had correctly applied the relevant legal principles and its findings were supported by the evidence. The court dismissed the applicant's application for leave to apply for internal review, affirming the Tribunal's decision that the respondent did not carry out the painting work in a proper and proficient manner, did not comply with relevant standards, and warranted that the surface was suitable for painting work.

Orders