YE and MYERS
[2015] WASAT 81
•28 JULY 2015
YE and MYERS [2015] WASAT 81
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 81 | |
| BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA) | |||
| Case No: | CC:639/2015 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR C RAYMOND (SENIOR SESSIONAL MEMBER) | 28/07/15 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Determination that Tribunal has jurisdiction | ||
| B | |||
| PDF Version |
| Parties: | YUAN YE JOHN NORMAN MYERS |
Catchwords: | Building Services (Complaint Resolution and Administration) Act 2011 (WA) Whether repair to ducted evaporative airconditioning unit constitutes provision of a regulated building service, being either a building service carried out by a registered building service provider or home building work as defined in Home Building Contracts Act 1991 (WA) carried out under a home building work contract or other contract or arrangement for reward |
Legislation: | Building Act 2011 (WA), s 3 Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5, s 5(1), s 5(2), s 11(1)(d) Building Services (Registration) Act 2011 (WA), s 3, s 7, s 9, s 17, s 18 Building Services (Registration) Regulations 2011 (WA), reg 6, reg 13 Home Building Contracts Act 1991 (WA), s 3, s 17 Home Building Contracts Regulations 1992 (WA), s 2A State Administrative Tribunal Act 2004 (WA), s 9 |
Case References: | Jones and Building Services Board [2015] WASAT 51 Lilley v LindsaySmith [2001] WASCA 168 Reitsema and Building Services Board [2013] WASAT 132 Tesari Pty Ltd v Moschopoulos [2002] WADC 56 |
Orders | On the application determined on the documents by Senior Sessional Member Clive Raymond, it is on 28 July 2015 ordered that: ,1. It is determined that the Tribunal has jurisdiction to determine this matter.,2. The matter is listed for a further directions hearing on 10 August 2015 at 2:45 pm, when a programme will be made for all necessary steps to be carried out to prepare the matter for final hearing, or to refer the matter to mediation. |
Summary | The applicant lodged a complaint with the Building Commissioner alleging that a building service provided by the respondent was faulty or unsatisfactory and seeking an order for recovery of the amount paid to the respondent of $1,140.,At the first directions hearing following referral of the matter to the Tribunal by the Building Commissioner, the Tribunal raised a jurisdictional issue as to whether the complaint could be advanced as either a building service carried out by a registered service provider or as home building work carried out under a home building contract or other contract or arrangement for gain or reward. The parties consented to the matter being determined on the documents.,The Tribunal concluded that although the definition of 'building work' was sufficiently broad to include repairs carried out to a ducted airconditioning system, the respondent was not a registered building service practitioner, and it was therefore not possible to advance the claim as a building service complaint. The Tribunal also concluded that the repair work was capable of constituting home building work, and if it did, the respondent met the very broad definition of who constituted a builder under the Home Building Contracts Act 1991 (WA). The Tribunal found that applying the principles outlined by the Supreme Court in Tesari Pty Ltd v Moschopoulos [2002] WADC 56, the work constituted home building work involving the repairing of a dwelling. However, in order to advance a complaint under s 17 of that legislation, it had to be established that there had been a breach of a home building work contract which, by definition, was limited to contracts in relation to which the amount stated to be payable was between $7,500 and $500,000. As the amount payable to the respondent was below that minimum amount, the work was not carried out under a home building work contract.,The Tribunal found that the work had been carried out under a contract, not being a home building work contract, or other arrangement for gain or reward, and as the work was home building work it had jurisdiction to determine the matter. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA) CITATION : YE and MYERS [2015] WASAT 81 MEMBER : MR C RAYMOND (SENIOR SESSIONAL MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 28 JULY 2015 FILE NO/S : CC 639 of 2015 BETWEEN : YUAN YE
- Applicant
AND
JOHN NORMAN MYERS
Respondent
Catchwords:
Building Services (Complaint Resolution and Administration) Act 2011 (WA) Whether repair to ducted evaporative airconditioning unit constitutes provision of a regulated building service, being either a building service carried out by a registered building service provider or home building work as defined in Home Building Contracts Act 1991 (WA) carried out under a home building work contract or other contract or arrangement for reward
Legislation:
Building Act 2011 (WA), s 3
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5, s 5(1), s 5(2), s 11(1)(d)
Building Services (Registration) Act 2011 (WA), s 3, s 7, s 9, s 17, s 18
Building Services (Registration) Regulations 2011 (WA), reg 6, reg 13
Home Building Contracts Act 1991 (WA), s 3, s 17
Home Building Contracts Regulations 1992 (WA), s 2A
State Administrative Tribunal Act 2004 (WA), s 9
Result:
Determination that Tribunal has jurisdiction
Summary of Tribunal's decision:
The applicant lodged a complaint with the Building Commissioner alleging that a building service provided by the respondent was faulty or unsatisfactory and seeking an order for recovery of the amount paid to the respondent of $1,140.
At the first directions hearing following referral of the matter to the Tribunal by the Building Commissioner, the Tribunal raised a jurisdictional issue as to whether the complaint could be advanced as either a building service carried out by a registered service provider or as home building work carried out under a home building contract or other contract or arrangement for gain or reward. The parties consented to the matter being determined on the documents.
The Tribunal concluded that although the definition of 'building work' was sufficiently broad to include repairs carried out to a ducted airconditioning system, the respondent was not a registered building service practitioner, and it was therefore not possible to advance the claim as a building service complaint. The Tribunal also concluded that the repair work was capable of constituting home building work, and if it did, the respondent met the very broad definition of who constituted a builder under the Home Building Contracts Act 1991 (WA). The Tribunal found that applying the principles outlined by the Supreme Court in Tesari Pty Ltd v Moschopoulos [2002] WADC 56, the work constituted home building work involving the repairing of a dwelling. However, in order to advance a complaint under s 17 of that legislation, it had to be established that there had been a breach of a home building work contract which, by definition, was limited to contracts in relation to which the amount stated to be payable was between $7,500 and $500,000. As the amount payable to the respondent was below that minimum amount, the work was not carried out under a home building work contract.
The Tribunal found that the work had been carried out under a contract, not being a home building work contract, or other arrangement for gain or reward, and as the work was home building work it had jurisdiction to determine the matter.
Category: B
Representation:
Counsel:
Applicant : In Person
Respondent : In Person
Solicitors:
Applicant : N/A
Respondent : N/A
Case(s) referred to in decision(s):
Jones and Building Services Board [2015] WASAT 51
Lilley v LindsaySmith [2001] WASCA 168
Reitsema and Building Services Board [2013] WASAT 132
Tesari Pty Ltd v Moschopoulos [2002] WADC 56
Introduction
1 On 12 December 2014, the applicant lodged a complaint with the Building Commission alleging that the respondent had failed to carry out a building service in a proper and proficient manner, or that the service provided was faulty or unsatisfactory.
2 The Building Commissioner subsequently referred the matter to the Tribunal for determination pursuant to s 11(1)(d) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act). At the first directions hearing on 12 May 2015, the Tribunal raised a jurisdictional issue as to whether a complaint relating to the repair of an airconditioning unit constitutes home building work under either the Home Building Contracts Act 1991 (WA) (HBC Act), or building work under the Building Act 2011 (WA) (BA Act), as incorporated within the definition of 'building service' under the BSCRA Act, and consequently whether the claim could be advanced in respect of a regulated building service. The parties consented to this jurisdictional issue being determined on the documents and orders were made accordingly.
The statutory regime
3 Unless otherwise expressly stated, all references hereafter are to the provisions of the BSCRA Act.
4 Section 5 provides relevantly:
5. Making a complaint about a building service or home building work contract matter
(1) Subject to the regulations, a person may make a complaint to the Building Commissioner about a regulated building service not being carried out in a proper and proficient manner or being faulty or unsatisfactory.
(2) An owner or builder under a home building work contract may make a complaint to the Building Commissioner about a matter referred to in the Home Building Contracts Act 1991 section 17 or 20 or Schedule 1 clause 5.
…
regulated building service means any of the following
(a) a building service carried out by a registered building service provider or an approved owner-builder;
(b) home building work that is
(i) carried out by a person for another person under a home building work contract or other contract or arrangement for gain or reward; and
(ii) not carried out for a person who is in turn obliged to perform the work under another contract;
(c) any other service or work prescribed for the purposes of this definition[.]
6 A building service is relevantly defined to include building work as defined in the BA Act.
7 Section 3 of the BA Act defines 'building work', relevantly, as:
building work means
(a) the construction, erection, assembly or placement of a building or an incidental structure; or
(b) the renovation, alteration, extension, improvement or repair of a building or an incidental structure; or
…
(e) site work on any land for the purposes of, or required because of, work of a kind mentioned in
(i) paragraph (a), (b), (c) or (d); or
(ii) paragraph (a) or (b) of the definition of demolition work[.]
incidental structure means a structure attached to or incidental to a building and includes
(a) a chimney, mast, swimming pool, fence, freestanding wall, retaining wall or permanent protection structure; and
(b) a part of a structure[.]
9 A 'registered building service provider' has the meaning given in s 3 of the Building Services (Registration) Act 2011 (WA) (BSR Act).
10 Section 3 of the BSR Act defines 'registered building service provider'to mean either a building service practitioner or a building service contractor, which terms are in turn defined to mean a person registered under s 17 or s 18, respectively, of the BSR Act.
11 Section 17 of the BSR Act requires that the Building Services Board (Board) must register or renew the registration of an applicant as a building service practitioner in each class of building service practitioner applied for if the Board is satisfied in respect of various matters, which are not relevant for present purposes.
12 Section 18 of the BSR Act has a similar provision in relation to registration of building service contractors in each class of building service contractor. Section 9 of the BSR Act provides that such classes may be prescribed by regulation.
13 Section 7 of the BSR Act prohibits a person from carrying out a prescribed building service for any other person unless the person is a building service contractor entitled to carry out that building service.
14 The Building Services (Registration) Regulations 2011 (WA) (BSR Regulations) prescribe, by reg 6 various classes of building service practitioners and building service contractors and relevantly also defines a prescribed building service, with reference to builder work as the person named as the builder on a building permit. Regulation 13 of the BSR Regulations defines 'builder work' to mean building work, for which a building permit is required, with a value of $20,000 or more carried out in particular defined areas of the State of Western Australia.
15 A 'home building works contract complaint' is referred to as an HBWC complaint and is defined in s 3 to mean a complaint under s 5(2) as set out above.
16 Section 17 of the HBC Act provides:
17. Breach of contract or Part 2, or entitlement to compensation, procedure in case of
If an owner or builder under a contract claims that
(a) there has been a breach of
(i) the contract, not being a breach in respect of which a building remedy order may be made under the Building Services (Complaint Resolution and Administration) Act 2011; or
(ii) a provision in Part 2;
or
(b) the owner or builder is entitled to compensation under Schedule 1,
then, subject to the Building Services (Complaint Resolution and Administration) Act 2011, the owner or builder may make a complaint under section 5(2) of that Act.
home building work contract means a contract between a builder and an owner for the performance by the builder of home building work, but does not include
(a) a cost plus contract;
(b) a contract for the performance of home building work
(i) for a builder who is in turn obliged to perform the work under another contract; or
(ii) if the amount stated in the contract as being payable under the contract for the work is $6 000, or such other amount as is prescribed, or less; or
(iii) if the amount stated in the contract as being payable under the contract for the work is $200 000, or such other amount as is prescribed, or more[.]
19 Section 3 of the HBC Act defines 'home building work', relevantly, as follows:
home building work means the whole or part of the work of
(a) constructing or re-constructing a dwelling including an existing dwelling and/or strata-titled dwelling; or
(b) placing a dwelling on land; or
(c) altering, improving or repairing a dwelling, including a strata-titled dwelling; or
(d) constructing or carrying out any associated work in connection with
(i) any work referred to in paragraph (a) or (b); or
(ii) an existing dwelling, including a strata-titled dwelling[.]
- Section 3 of the HBC Act also contains the following further relevant definitions:
associated work includes site works, swimming pools, spas, pergolas, carports, garages, sheds, fencing, retaining walls, paving, driveways, landscaping and other like works;
builder means a person who carries on, or two or more persons who together carry on, a business which consists of or includes the performing of home building work for others;
construct in relation to a dwelling means perform any work commencing with the preparation of the site and an ending with the completion of the dwelling (including any associated work) and includes
(a) painting, where that is part of the work included in the contract; and
(b) the provision of lighting, heating, water supply, drainage, sewerage, gas and other like services;
contract means a home building work contract;
owner in relation to a contract means the person for whom or which home building work is to be performed under the contract[.]
20 Under the definition of a regulated building service there are three potential bases upon which the complaint might be made:
• firstly, if it relates to a building service carried out by a registered building service provider;
• secondly, if the work carried out is home building work (within the meaning of that term under the HBC Act) carried out by the respondent for the applicant under a home building contract (within the meaning of that term under the HBC Act); and
• thirdly, if the work carried out is home building work carried out by the respondent for the applicant under a contract (not being a home building work contract) or arrangement for gain or reward.
Was a building service carried out by a registered building service provider?
21 The definition of 'building work', and what therefore constitutes a building service, is extremely wide: see the discussion in Reitsema and Building Services Board [2013] WASAT 132 (Reitsema) and Jones and Building Services Board [2015] WASAT 51 (Jones). It would, in my view, certainly include the initial installation of a ducted airconditioning system, which is incorporated within the roof space and parts of which are fixed to the roof or walls of a dwelling, as part of the original construction. This is because such an installation, at the very least, comes within the meaning of assembly or placement of an incidental structure.
22 Repair work to an existing ducted airconditioning system could also constitute the repair of an incidental structure. However, the assembly or placement or repair must be work which is carried out by a registered building service provider or an approved ownerbuilder.
23 There is nothing to suggest that the respondent is a registered building service provider. In an email response to the Building Commissioner dated 10 February 2015, the respondent states that he has been carrying out repairs to airconditioning units for the last 18 years. The value of each repair contract is unlikely to exceed $20,000 and is not of a nature that requires a building permit. The qualifications and experience required for registration as a building service practitioner and contractor are such that the respondent would not qualify for registration: see the discussion of the applicable principles in the Reitsema and Jones decisions.
24 It follows that the complaint cannot be advanced against the respondent as a building services complaint under s 5(1) of the BSCRA Act on the basis of being a complaint made in respect of a building service carried out by a registered building service provider.
Is the work home building work carried out under a home building work contract, or other contract or arrangement for reward?
25 In order for the work to be carried out under a home building work contract the contract must be between a builder and an owner. If a contract is established between the parties the repair work to be performed was for the applicant, and he is therefore the owner as defined under the HBC Act. The definition of 'builder' for the purposes of a HBWC complaint includes a person who carries on a business which consists of or includes the performing of home building work for others.
26 If the respondent has carried on the business of repairing airconditioning installations for some 18 years, he would meet the requirements of the definition of a builder under this legislation if the work that he undertakes falls within the meaning of 'home building work' under the HBC Act.
27 I consider that the initial installation of a ducted airconditioning unit within the roof space of a dwelling and the fixing of parts on the roof or walls constitutes home building work because it comes within the meaning of altering or improving a dwelling. When carried out as part of the contract for the construction of the dwelling, such work would also, in my view, come within the meaning of constructing a dwelling.
28 The above conclusions are supported by the principles outlined by Hasluck J in Lilley v LindsaySmith [2001] WASCA 168 (LindsaySmith) at [33] and following. His Honour referred to the definition of 'construct' under the HBC Act as meaning to perform any work commencing with the preparation of the site and ending with the completion of the dwelling (including any associated work), and including (a) painting where that is part of the work included in a contract and (b) the provision of lighting, heating, water supply, drainage, sewerage, gas and other like services. His Honour then observed, at [34]:
This suggests that the notion of constructing embraces the various activities which will make the dwelling fit for occupation. It is important to note that the term 'construct' in relation to a dwelling embraces the performance of 'any work' and includes painting and the provision of services. The broad definition of 'construct' clearly embraces aspects of the dwelling which are not necessarily an integral part of its structure.
29 His Honour went on to find that the installation of a wooden floor, measured to fit the owner's requirements, by using glue and nails to affix it to the concrete slab with the obvious intention of ensuring that the floor thus installed was to be a permanent feature of the dwelling, constituted home building work. His Honour also found, in the alternative, that this work met the definition of home building work involving altering, improving or repairing a dwelling. Further, his Honour found that the installation of the floor in question came within the definition of 'associated work'. His Honour found that it was appropriate to give proper weight to the ordinary meaning of the words used as including work 'associated' with the construction of a dwelling. That the verb to 'associate' means to join or to connect as an idea or to combine for a common purpose. His Honour found that the flooring, in that case, could properly be regarded as a form of work that is connected to or combined with other work in order to complete the dwelling, and therefore constituted associated work.
30 I therefore also accept that the installation of a ducted airconditioning system constitutes associated work when carried out as part of the construction of a dwelling. It is, however, to be noted that the inclusion of associated work in home building work does not apply to part (c) of the definition, being altering, improving or repairing a dwelling.
31 It should also be noted that in Tesari Pty Ltd v Moschopoulos [2002] WADC 56, Martino DCJ (as he then was) refused leave to appeal against a decision of the then Building Disputes Committee which found that a contract for the supply and installation of a reverse cycle ducted refrigerated airconditioning unit constituted home building work. His Honour considered the prospects of appeal on the merits to be 'not strong', although it is apparent that a significant factor in the refusal of leave was that his Honour concluded that the particular proceedings were not the best vehicle for the final determination of whether or not the HBC Act applied to the appellant's work because of the low value of the dispute and because testing through the process of prosecution would allow the issue to come before the Supreme Court. Under the statutory scheme then existing, any decision of the District Court would have been final.
32 If it is correct that the initial installation of a ducted airconditioning system constitutes part of constructing a dwelling, it is arguable that the carrying out of repairs to the unit constitutes repairing a dwelling. The effect of such a conclusion is that subsequent repairs to equipment installed as fixtures to the structure, as part of the construction of the dwelling, such as an oven or an under floor heating system, would constitute home building work. This might initially appear to be an absurd outcome, but when regard is had to the extended scope of work which falls within the definition of 'home building work' so as to include, by way of example, swimming pools, spas and landscaping, the conclusion may be viewed differently. In the LindsaySmith decision, Hasluck J rationalised that the HBC Act was designed to afford some measure of protection to consumers of building services and that the decided cases suggested that remedial legislation of this kind should not be construed narrowly. I am bound to follow the principles which form part of the rationale of the decision. I therefore accept that the repair of a ducted airconditioning system, originally installed either as part of the construction of a dwelling or installed as a subsequent improvement, constitutes home building work.
33 However, in order to be advanced as a complaint under s 17 of the HBC Act, it must be alleged that there has been a breach of a home building works contract, which means that the amount payable under the contract must lie between $7,500 and $500,000. In this case, the total sum paid for the repairs undertaken by the respondent totalled only $1,140. It follows that the complaint cannot be advanced under s 5(1) of the BSCRA Act as being a complaint in respect of work carried out under a home building work contract. However, it is likely that the arrangements made between the parties when fully explored will meet the requirements to constitute a contract which is in part oral and in part by conduct. On any basis, it is clear the parties made an arrangement which involved the respondent carrying out home building work with the intention that he be paid for his services, which therefore constitutes an arrangement for gain or reward, within the meaning of para (b)(i) of the definition of regulated building service. It follows that the complaint may be advanced under s 5(1) of the BSCRA Act as being in respect of home building work under a contract or other arrangement for gain or reward.
Conclusion and orders
34 For the above reasons, it follows that the Tribunal does have jurisdiction in respect of this complaint. The Tribunal will accordingly cause an order to issue in the following terms:
1. It is determined that the Tribunal has jurisdiction to determine this matter.
2. The matter is listed for a further directions hearing on 10 August 2015 at 2:45 pm, when a programme will be made for all necessary steps to be carried out to prepare the matter for final hearing, or to refer the matter to mediation.
I certify that this and the preceding [34] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR C RAYMOND, SENIOR SESSIONAL MEMBER
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