CAPONE and ENNIS CONSTRUCTION PTY LTD

[2012] WASAT 21

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

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

CITATION:   CAPONE and ENNIS CONSTRUCTION PTY LTD [2012] WASAT 21

MEMBER:   JUSTICE J A CHANEY (PRESIDENT)

HEARD:   DETERMINED ON THE DOCUMENTS

DELIVERED          :   3 FEBRUARY 2012

FILE NO/S:   CC 2050 of 2011

CC 2074 of 2011

BETWEEN:   DANIEL  CAPONE

KATRINA CAPONE
Applicants

AND

ENNIS CONSTRUCTION PTY LTD
Respondent

Catchwords:

Building - Current proceedings - Matters dealt with through mediation in Building Disputes Tribunal - Order to remedy - Alleged non-compliance - Limits to State Administrative Tribunal jurisdiction - Outcome of claims by each party interrelated - Whether order that proceedings are current proceedings is appropriate

Legislation:

Builders Registration Act 1939 (WA)
Building Services (Complaint Resolution and Administration) Act 2011, s 7, s 9, s 11, s 51, s 133, s 134, s 134(2)
Home Building Contracts Act 1991 (WA), s 3

Result:

Order made that respective claims are current proceedings

Category:    B

Representation:

Counsel:

Applicants:     Self-represented

Respondent:     Mr P Monaco

Solicitors:

Applicants:     Self-represented

Respondent:     GV Lawyers

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. Certain proceedings had been referred to the State Administrative Tribunal by the Building Commissioner.  Part of the proceedings had been transferred from the then Building Disputes Tribunal to the Commissioner under the transitional provisions of the Building Services (Complaint Resolution and Administration) Act 2011 (WA).

2. The President of the Tribunal determined that, in the particular circumstances of these proceedings it was appropriate that there be orders that the proceedings are 'current proceedings', with the result that they are to be referred back to the Building Disputes Tribunal for resolution.

Background

1. These matters concern the construction by Ennis Construction Pty Ltd (builder) of a residence for Mr and Mrs Capone (owners) in Mandurah.  The residence is a substantial one of two storeys, for which the contract stipulated a price of $427,461.  Subsequent variations of (according to the owners) $257,321 or alternatively (according to the builder) $333,692.13 were subsequently agreed.

2. On 16 February 2011, the owners filed what might be described as a wide­ranging complaint with the Building Disputes Tribunal (BDT).  The complaint raised allegations of both a workmanship and contractual nature.  Altogether, the complaint comprises some 109 separate items.

3. The owners' complaint came on for directions in the BDT on 3 May 2011, when it was listed for mediation for two separate days.  The mediation proceeded before Chairman Hockley on 14 July 2011 and 1 September 2011.  One of the reasons for the staging of the mediation in this way appears to have been to allow a building inspection report to be obtained by the parties, and such a report dated 29 August 2011 appears on the BDT file.

4. On 1 September 2011, Order to Remedy No 46/2011­12 was made by consent.  The order to remedy dealt with 94 items, and the outcomes were, in broad terms, divided between rectification by the builder, referral to hearing or dismissal.  It appears that there were other items of complaint which were not referred to in the order to remedy which were destined for hearing; presumably, they comprised the balance of the 109 items described in the complaint. 

5. The order to remedy also required the owners to supply a list of items to be heard at the hearing.  A list was provided, indicating both items which were the subject of rectification work to be performed by the builder pursuant to the order to remedy and other items.  An updated building inspection report dated 5 December 2011 considered the extent of compliance with the order to remedy.

6. On 2 May 2011, the builder filed a complaint with the BDT seeking recovery of a progress payment claim for $30,653.15.  This, necessarily, is made under the Home Building Contracts Act 1991 (WA) (HBC Act).

7. On 9 December 2011, a further directions hearing in the BDT occurred.  The outcome was an acknowledgement that, by reason of the operation of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BS Act), both matters had, by then, been transferred to the Building Commission.

Legislative framework

1. Since 29 August 2011 (commencement day), jurisdiction in building complaints concerning both poor workmanship and contractual claims, formerly vested in the BDT, was bestowed, in the first instance, on the Building Commissioner. Having decided to accept the application (as to which see s 7 of the BS Act), and subsequent to an investigation of the complaint being conducted (s 9 BS Act), the Building Commissioner has the options of dismissing the complaint, dealing with it itself by conciliation or determination, or referring the complaint to the Tribunal (s 11 BS Act).

2. The position regarding proceedings already commenced in the BDT prior to the commencement day is that, generally speaking, they were transferred on that day to the Building Commissioner by operation of s 133 of the BS Act. An exception exists however, in relation to any 'current proceeding', which is the subject of s 134 of the BS Act, which provides:

   (1)In this section -

   current proceeding means -

   (a)a proceeding in respect of which a hearing has commenced before the former Tribunal, but which has not been concluded before the former Tribunal; or

   (b)a proceeding in respect of which an order is made under subsection (2);

   proceeding means -

   (a)a proceeding to deal with a complaint under section 12A of the repealed Act; or

   (b)a proceeding to deal with an application under the Home Building Contracts Act 1991,

   but does not include a proceeding of an interlocutory or procedural nature.

   (2)The State Administrative Tribunal constituted by the President of the Tribunal sitting alone may, on its own initiative or on the application of a party, order that a proceeding is a current proceeding for the purposes of this section.

   (3)A current proceeding is to be dealt with and determined in accordance with the relevant provisions of the repealed Act and the Home Building Contracts Act 1991 as in force immediately before commencement day.

   (4)For the purposes of dealing with a current proceeding the former Tribunal is to continue as constituted under the repealed Act immediately before commencement day.

3. On 13 December 2011 (in the case of the builder's claim) and 14 December 2011 (in the case of the owners' claim), the Building Commissioner advised the applicant in each case of the acceptance by the Building Commissioner of each respective complaint under s 7 the BS Act, and of its referral to this Tribunal pursuant to s 11 of the BS Act.

Are orders under s 134(2) appropriate?

1. There is no suggestion that either the owner's claim or the builder's claim is a current proceeding within part (a) of the definition of that expression in s 134. Both matters have however been referred to me for consideration as to whether I should, pursuant to s 134(2), make orders that the claims are current proceedings. The effect of such an order would be that the proceedings would be dealt with and determined by the BDT, in accordance with the relevant legislation in force immediately preceding the commencement day.

2. The immediate and obvious factor in favour of my making s 134(2) orders concerns those items of the owners' complaint in respect of which provision was made in the order to remedy for rectification works to occur, but which the owners claim have not been rectified. Under the legislation as it existed both before and after the commencement day, the only recourse available is revocation of the order to remedy and for an order for payment of money to be made (under the Builders Registration Act 1939 (WA), an order to pay, and under the BS Act, an order to pay or an order for compensation). However, s 51 of the BS Act makes clear that this Tribunal is empowered to make such an alternate order only in respect of building remedy orders made by it.

3. Were the owners' application to remain in this Tribunal, the Tribunal would be unable to deal with a substantial part of the application concerned with the alleged failure of the builder to comply with his rectification obligations under the order to remedy.  The Tribunal would be limited to those items which formed part of the complaint but which were not dealt with in the order to remedy. 

4. I am informed by the member who sat on the directions hearing in this Tribunal, when these issues were discussed, that the parties agreed that, given the limitation to which I have just referred, it would be inappropriate for the balance of the owners' application to remain in this Tribunal, where it is inevitable that part of the application needs to be dealt with by the BDT.  I accept this agreed view.

5. The result is that the best way forward is for the whole of the owners' complaint to, in effect, be transferred back to the BDT. As I have mentioned, the mechanism to enable this is by an order under s 134(2), and I will make such an order in the owners' application.

The builder's complaint

1. I turn to the builder's complaint. I am informed by the member that the parties were in agreement that if the BDT was to deal with the owners' complaint, it would be necessary that the builder's application also be dealt with by the BDT. Amongst other good reasons, I am informed that it was not in issue that the outcome of some of the items of the owners' complaint might impact upon the recoverability of the amount of the builder's contractual claim. This is, in my view, a sufficient basis by itself for a s 134(2) order to be made in the builder's application. For that reason, and having regard to the parties' agreement that it is preferable for all matters in dispute to be dealt with in one forum, an order under s 134(2) in relation to the builder's claim is appropriate.

2. There might be a question as to whether or not the contract between the parties is a 'home building work contract' for the purposes of the HBC Act.  I have in mind the financial limitations applying by reason of the definition in s 3 of the HBC Act. However, to the extent that that question arises, it is a matter with which the BDT will be able to deal in the overall context of the builder's application.

Orders

1. In matter CC 2050 of 2011:

2. Pursuant to s 134(2) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) it is ordered that:

   1.The proceeding in the Building Disputes Tribunal No D20382/01 being a proceeding between Daniel and Katrina Capone and Ennis Construction Pty Ltd is a current proceeding.

3. In matter CC 2074 of 2011:

4. Pursuant to s 134(2) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) it is ordered that:

   1.The proceeding in the Building Disputes Tribunal No D20527/01 between Ennis Construction Pty Ltd and Daniel and Katrina Capone is a current proceeding.

I certify that this and the preceding [23] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

JUSTICE J A CHANEY, PRESIDENT