ZIMOWSKI and IDEAL HOMES PTY LTD - [2022] WASAT 82

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   ZIMOWSKI and IDEAL HOMES PTY LTD [2022] WASAT 82
MEMBER:   MR D AITKEN, SENIOR MEMBER
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   28 APRIL 2022
PUBLISHED           :   8 SEPTEMBER 2022
FILE NO/S:   CC 910 of 2021
CC 1706 of 2021

BETWEEN: LUKASZ ZIMOWSKI
First Applicant
JOLANTA ZIMOWSKA
Second Applicant
MAREK ANDRZEK ZIMOWSKI
Third Applicant
AND
IDEAL HOMES PTY LTD
Respondent

Catchwords:

Building Services (Complaint Resolution and Administration) Act 2011 (WA) - Application for joinder of persons as additional applicants - Whether power to join a person as a party is available in proceeding concerning building service complaint referred to Tribunal by Building Commissioner - Consideration of exercise of discretionary power by Tribunal to join a person as a party to a proceeding

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3(1), s 5(2), s 6(1), s 7(1), s 7(2), s 9, s 10, s 11, s 11(1), s 11(1)(d), s 12, s 12(a), s 12(b), s 37, s 48(3), s 48(4), s 57, s 57(1)(c), s 57(2)
Building Services (Complaint Resolution and Administration) Regulations 2011 (WA), reg 6(2), reg 6(4)
Home Building Contracts Act 1991 (WA), s 17
Interpretation Act 1984 (WA), s 56
State Administrative Tribunal Act 2004 (WA), s 3(1), s 5, s 13(1), s 14, s 16(1), s 16(2), s 38, s 38(1), s 38(1)(a), s 38(1)(b), s 51(1)
Strata Titles Act 1985 (WA)
Victorian Civil and Administrative Tribunal Act 1998 (Vic)

Result:

Application for joinder of additional persons as applicants successful
Second and third applicants joined to proceedings

Category: B

Representation:

Counsel:

First Applicant	:	N/A
Second Applicant	:	N/A
Third Applicant	:	N/A
Respondent	:	N/A

Solicitors:

First Applicant	:	Summers Legal
Second Applicant	:	Summers Legal
Third Applicant	:	Summers Legal
Respondent	:	Palmos Legal

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

Coleman and The Owners of Peace Street Community (Survey-Strata Scheme 655005) [2020] WASAT 105
Ferrara and Webb & Brown-Neaves Pty Ltd [2021] WASAT 155
FMG Pilbara Pty Ltd and Minister for Indigenous Affairs [2012] WASAT 31
Gemmill Homes Pty Ltd v Sanders [2018] WASC 179
Holman and W & D Moffatt Pty Ltd [2015] WASAT 100
Kruger v Commonwealth of Australia (1997) 190 CLR 1
Owners of Island Apartments Strata Plan 52597 and Pindan Pty Ltd [2017] WASAT 25
Seares and The Owners of Matilda Units Strata Plan 33443 [2018] WASAT 75
The Owners of 52 Mill Point Road Strata Plan 62152 and Hanssen Pty Ltd [2021] WASAT 102

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 28 April 2022 I made an order pursuant to s 38(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) joining Ms Jolanta Zimowska as the second applicant to these proceedings and joining Mr Marek Andrzek Zimowski as the third applicant to these proceedings (the joinder order).
The application to join the second and third applicants to the proceedings (the joinder…

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: [2022] WASAT 82
Decision Date: 8 SEPTEMBER 2022

CaseChat Overview and Summary

The case of Zimowski and Ideal Homes Pty Ltd involved a dispute concerning the Building Services (Complaint Resolution and Administration) Act 2011 (WA). The applicants, Zimowski and Ideal Homes, sought to join another individual as an additional applicant in a proceeding concerning a complaint about building services that had been referred to the Tribunal by the Building Commissioner. The legal issues before the court centred on the availability of the power to join a person as a party in proceedings concerning a building service complaint and the exercise of the Tribunal's discretion to join a person as a party.

The court considered whether the power to join a person as a party in a proceeding concerning a building service complaint was available under the relevant legislation. The court also examined the exercise of the Tribunal's discretion to join a person as a party, taking into account the statutory framework and the circumstances of the case. The court held that the power to join a person as a party in proceedings concerning a building service complaint was available under the Act, and that the Tribunal had the discretion to exercise that power in appropriate circumstances. The court further found that the Tribunal had exercised its discretion appropriately in the present case.

The court's decision confirmed the availability of the power to join a person as a party in proceedings concerning a building service complaint and upheld the Tribunal's exercise of discretion in joining the additional applicant. The court's reasoning provided clarity on the legal issues and the exercise of discretion in this area of law. The final orders of the court would reflect the decision on the joinder of the additional applicant and any other relevant matters.

Orders