YE and MYERS [2015] WASAT 81

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2015] WASAT 81
Act:	BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)
Case No:	CC:639/2015	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	MR C RAYMOND (SENIOR SESSIONAL MEMBER)	Delivered:	28/07/15
No of pages:	13	Judgment Part:	1 of 1
Result:	Determination that Tribunal has jurisdiction
Category:	B
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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…

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 YE and MYERS

Details

AGLC: YE and MYERS [2015] WASAT 81
Case: [2015] WASAT 81
Decision Date: 28 JULY 2015

CaseChat Overview and Summary

The parties involved in this case were YE and Myers, and the nature of the dispute was whether the repair to a ducted evaporative air-conditioning unit constituted the provision of a regulated building service. This matter was determined by the court under the Building Services (Complaint Resolution and Administration) Act 2011 (WA). The court was tasked with deciding whether the repair fell under the definition of a building service carried out by a registered building service provider or if it was home building work as defined in the Home Building Contracts Act 1991 (WA) carried out under a home building work contract or other contract or arrangement for reward.

The legal issues before the court included the interpretation of the relevant acts and determining whether the repair to the air-conditioning unit qualified as a regulated building service. The court had to consider the definitions and scope of regulated building services under the Building Services (Complaint Resolution and Administration) Act 2011 (WA) and the definition of home building work under the Home Building Contracts Act 1991 (WA). Additionally, the court needed to examine if the repair could be considered a service carried out by a registered building service provider or if it constituted home building work.

In reaching its decision, the court thoroughly examined the statutory definitions and the nature of the work performed. It was found that the repair to the ducted evaporative air-conditioning unit did not fall under the definition of a regulated building service as per the Building Services (Complaint Resolution and Administration) Act 2011 (WA). Instead, it was categorised as home building work as defined in the Home Building Contracts Act 1991 (WA). Consequently, the court determined that the Tribunal had jurisdiction over the matter, as the repair did not qualify as a regulated building service but rather as home building work.

The final order of the court was to determine that the Tribunal has jurisdiction over the dispute between YE and Myers regarding the repair to the ducted evaporative air-conditioning unit.

Orders

Orders of the court

Determination that Tribunal has jurisdiction

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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