Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA

Citation : BRAHAM and EVANS & ANOR [2007] WASAT 124

Building and construction - Appeal against decision of State Administrative Tribunal refusing leave to review decision of Building Disputes Tribunal - Whether complaint excluded by limitation provision - Whether building 'fit for occupation in a free and uninterrupted manner' - Whether power of Building Disputes Tribunal excluded by failure to give preliminary notice - Whether State Administrative Tribunal made error of law - Whether requirements of procedural fairness met - Turns on own facts

Builders Registration Act 1939 (WA) s 12A, s 41

State Administrative Tribunal Act 2004 (WA), s 105(2)

1 Mr and Mrs Braham owned the property at 12 O'Byrne Crescent, Kalgoorlie (the Property). On 23 January 1995 they were granted a building permit to construct a timber framed weatherboard residence, as depicted on specific plans, on the Property. At that stage, the Property was a vacant block.

2 Subsequently, a house was constructed on the Property.

3 Mr Evans and Ms Grace, the respondents in this appeal, purchased the Property from Mr and Mrs Braham at auction on 18 October 2003.

4 Early in 2004 the roof of the house on the Property began to leak. Mr Evans and Ms Grace (the Purchasers) contacted a plumber, who recommended that they contact the City of Kalgoorlie-Boulder and obtain a copy of the plans. The plans revealed that the house as constructed, as at 2004, was very different to the approved plans.

5 On 29 March 2004 the Purchasers made a complaint to the Building Disputes Tribunal (the BDT).

6 Mr and Mrs Braham did not participate in the proceedings before the BDT.

7 The BDT ordered that Mr and Mrs Braham pay the sum of $425,000 to the Purchasers. That sum was calculated by reference to the cost of demolishing and rebuilding the house on the Property.

8 The appellant, Mr Braham, applied to the State Administrative Tribunal (the Tribunal) for leave to review the decision of the BDT. The Tribunal refused leave, essentially on the basis that there was no sufficient doubt as to the correctness of the decision of the BDT that would justify the grant of leave to review the BDT's decision.

9 Mr Braham appeals against the decision of the Tribunal refusing leave to review the decision of the BDT.

10 In support of his application to the Tribunal for leave to review the decision of the BDT, Mr Braham relied on a number of specific alleged errors on the part of the BDT. I will mention only those four which remain relevant to Mr Braham's appeal to this court.

11 In order to understand Mr Braham's contentions it is necessary to put the proceedings before the BDT into their statutory context. In making orders, the BDT exercised jurisdiction and power under s 12A of the Builders Registration Act 1939 (WA). That section is, relevantly, in the following terms.

(1) Where on complaint being made to it by any person, including the Board, the Disputes Tribunal is satisfied that any building work has not been carried out in a proper and workmanlike manner by reason that the building work is faulty or unsatisfactory the Disputes Tribunal may by order in writing served on the person who carried out the building work order him to -

(a) remedy the faulty or unsatisfactory building work within such reasonable time as is specified in the order; or

(b) pay to the owner of the building such costs of remedying the building work that is faulty or unsatisfactory as the Disputes Tribunal considers reasonable in which case any costs so ordered by the Disputes Tribunal constitute a debt to the owner and are recoverable by him in a court of competent jurisdiction.

...

(1aa) The Disputes Tribunal shall not have power to make an order under this section in respect of any building work following a complaint in respect of that work, unless such complaint is made before the expiration of 6 years from the time when the building work was completed; and for the purposes of this subsection, building work is completed when the building to which the work relates becomes fit for occupation in a free and uninterrupted manner.

(1b) The provisions of subsections (1) and (1a) apply to and in relation to building work carried out by any person, whether a builder or not, and whether registered under this Act or not.

(1c) Nothing in section 4(1)(A) precludes a person who is not registered as a builder under this Act from carrying out an order of the Disputes Tribunal made pursuant to subsection (1)(a) or (1a)(a).

(2) A complaint under subsection (1) or (1a) cannot be made before the complainant has given to the other party a preliminary notice under subsection (3).

(3) A preliminary notice is a notice in writing in the prescribed form setting out the matters of which the intending complainant complains and calling on the other party to -

(a) rectify them; or

(b) otherwise attempt to settle any matters that are in dispute.

(3a) A copy of the preliminary notice is to be given to the Disputes Tribunal at the time a complaint is made under subsection (1) or (1a).

12 Mr Braham relies on four grounds of appeal. He abandoned ground 1 and ground 3(a) at the hearing of the appeal.

13 First, before the Tribunal Mr Braham challenged the finding of the BDT that the Purchasers' complaint was not excluded by s 12A(1aa). By ground 2 of his appeal to this court, Mr Braham alleges that the Tribunal erred in law in rejecting that challenge. I will explain the basis of that challenge in the context of dealing with ground 2.

14 Secondly, before the Tribunal Mr Braham challenged the finding by the BDT that the Purchasers' complaint was not excluded by s 12A(2). He contended that the document said by the Purchasers to be the preliminary notice required under subsection (2) had not been 'given' to Mr and Mrs Braham in that it had been returned undelivered after being posted by registered mail. The Tribunal rejected that challenge. By ground 3(b) Mr Braham contends that the Tribunal erred in law in that conclusion.

15 Thirdly, before the Tribunal Mr Braham contended that the BDT erred in finding that Mr and Mrs Braham had carried out the building work the subject of the complaint when there was 'no or no sufficient evidence' to support that finding. By ground 4 Mr Braham alleges that the Tribunal erred in law in rejecting that contention.

16 Fourthly, before the Tribunal Mr Braham alleged that the BDT failed to afford Mr and Mrs Braham procedural fairness. Ground 5 contends that the Tribunal erred in law in rejecting that contention.

17 I will begin by outlining the principles relevant to the grant of leave by the Tribunal for a review of the BDT's decision. I will then outline the principles relevant to the scope of an appeal against the decision of the Tribunal. An appeal against a decision of the Tribunal can only be brought on a question of law. As I will explain, that places important limits on the scope of the available grounds of appeal in this case. Thereafter, I will deal with the appeal grounds in turn.

Leave under s 41 of the Builders Registration Act

18 By s 41 of the Builders Registration Act, a party to proceedings before the BDT may apply to the Tribunal for a review of the BDT's decision, but only if the Tribunal grants leave. There did not appear to be any dispute between the parties as to the principles relevant to an application under s 41(2) for leave to review a decision of the BDT.

19 The proper approach to the grant of leave under s 41 is to be considered in the context of the nature and extent of the hearing before the BDT under the Builders Registration Act. In broad terms, the Builders Registration Act provides for a full contested hearing of building disputes before the BDT. See, for example, s 36, s 37, s 38 and s 40. Generally, when the Tribunal is exercising its review jurisdiction under the State Administrative Tribunal Act 2004 (WA), the original decision under review does not involve a hearing of the same nature as is provided under the Builders Registration Act. No doubt it is for that reason that the Builders Registration Act imposes a requirement of leave on an application to review a decision of the BDT, whereas generally there is no leave requirement.

20 The Tribunal's statement of the relevant principles was not criticised by the parties in this appeal. It may be summarised as follows:

(a) Generally an applicant for leave must show that the decision in respect of which leave is sought is wrong or attended with sufficient doubt to justify the grant of leave and, in addition, that substantial injustice would be done by leaving the decision unreversed;

(b) However, the requirement that substantial injustice be shown is no more than a guideline for the exercise of a broad discretion to grant or withhold leave in the interests of justice; and

(c) It is open to the Tribunal to grant leave on terms which limit the review to one or more specified grounds.

21 As to the last of those points, in Tangent Nominees Pty Ltd v Edwards [2005] WASAT 119 Senior Member Raymond granted leave to review a decision of the BDT on a single ground only. That approach was upheld by McKechnie J in Tangent Nominees Pty Ltd v Edwards [2006] WASC 45. His Honour held that, notwithstanding that generally a review by the Tribunal involves a hearing de novo (State Administrative Tribunal Act s 27), it was open to the Tribunal to grant leave limited to one or more specific grounds.

22 By s 105(1) of the State Administrative Tribunal Act, a party seeking to appeal from a decision of the Tribunal needs leave to appeal. On 11 September 2007 McKechnie J granted leave to Mr Braham to appeal from the decision of the Tribunal.

23 By s 105(2) of the same Act, an appeal against a decision of the Tribunal can only be brought on a question of law. In Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [53] - [56] Buss JA (Wheeler and Pullin JJA agreeing) explained the limiting effect of s 105(2). The following summarises what is relevant to the present appeal:

(a) An appeal 'on' a question of law is narrower than an appeal that merely 'involves' a question of law. Where an appeal lies on a question of law the subject matter of the appeal is the question or questions of law;

(b) If a question raised by a litigant, properly analysed, is not a question of law, linguistic gymnastics in the formulation of the grounds of appeal cannot convert it into a question of law;

(c) A question of mixed law and fact is not a question of law within s 105(2). A ground of appeal which asserts that the decision is against the evidence or against the weight of the evidence, does not raise a question of law. A tribunal does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis; and

(d) By contrast, a ground of appeal that there was no evidence or other material to support a finding raises a question of law. Further, a ground of appeal that a tribunal has made a finding that is manifestly unreasonable, in the sense that no reasonable tribunal could have made that finding, alleges an error of law.

24 To demonstrate an absence of evidence to support a finding or decision is a greater burden than to demonstrate an absence of evidence or other material from which the decision maker could reasonably be satisfied of a particular matter: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 358. (What Mason CJ said in Bond as to the relationship between s 5(1)(f), s 5(1)(h) and s 5(3) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) has been criticised in subsequent High Court decisions: Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32; (2002) 210 CLR 222 and Re Minister for Immigration and Multicultural Affairs, ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 [57]. However, as I understand it, what his Honour said (with the agreement of the other members of the court) as to the common law remains authoritative.)

25 It is an error of law to draw an inference that is not open to be drawn. Bond (355 - 356); Bruce v Cole (1998) 45 NSWLR 163, 188; Lillywhite v Chief Executive, Liquor Licensing Division, Department of Tourism, Fair Trading and Wine Industry Development [2008] QCA 88 [27]. Although that proposition is sometimes expressed in terms of whether the inference was 'reasonably open', it must be recognised that a conclusion by a court that a finding of fact or drawing of an inference was unreasonable is insufficient to establish an error of law: Powley v Crimes Compensation Tribunal (1996) 11 VAR 146, 157; Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1; [1999] FCA 1; (1999) 84 FCR 411 [24].

The Tribunal, having found that the finding of the BDT that the building work the subject of the complaint had been completed on 30 March 1998, and, therefore, less than 6 years before the making of the complaint, being the limitation period for the making of complaints to the BDT under the BR Act, imposed by s 12A(1aa) of the BR Act ('the limitation period'), was unsafe, erred in law in finding that:

(a) the expressions 'fit for occupation' and 'in a free and uninterrupted manner', as they appear in s 12A(1aa) of the BR Act, are not co-extensive;

(b) the building to which the building work the subject of the complaint related ('the house') was not fit for occupation; and, therefore

(c) the house had not been completed; and, therefore

(d) the limitation period had not commenced; and, therefore

(e) the power of the BDT to make an order to pay pursuant to s 12A(1) of the BR Act was not excluded by the provisions of s 12A(1aa) of the BR Act.

The Tribunal should have found that the two expressions in s 12A(1aa) of the BR Act were co-extensive and that, because there was no evidence before the BDT as to when the house was fit for occupation in a free and uninterrupted manner or as to when the house was completed, there was substantial doubt that the complaint was made within the limitation period and that the BDT had the power to make the order to pay against the appellant and Mrs Braham pursuant to s 12A(1) of the Act.

27 Ground 2 and the submissions in support of it allege errors of law of two different characters. One relates to the proper construction of s 12A(1aa); the other alleges an absence of evidence for factual findings made by the Tribunal.

28 I will begin by summarising the relevant portions of the Tribunal's reasons. Next, I will deal with the proper construction of s 12A(1aa). Thirdly, I will deal with whether the Tribunal's reasons reveal any error of law in making a factual finding in respect of which there was no evidence.

29 When the matter was before the BDT, there was a preliminary hearing on the question of whether the power of the BDT was excluded by s 12A(1aa). The BDT found that the building work was completed on 30 March 1998 and the complaint was lodged on 29 March 2004, one day before the expiry of the limitation period referred to in s 12A(1aa). In so finding, the BDT relied on a notation in a computer record of the City of Kalgoorlie-Boulder which read 'Completed 30/03/98'.

30 Before the Tribunal, Mr Braham contended that one of the grounds on which leave to review should be granted was the error of the BDT in acting on the notation on the City's records. Mr Braham pointed out to the Tribunal that at the final hearing before the BDT a building surveyor with the City, Mr Bassett, had said (in response to questions from the BDT) that the completion date recorded by the City was for rating purposes. Mr Bassett said that date was likely to have been the date on which a drive-by of the property had occurred to see if the house was occupied.

31 The Tribunal found that the BDT was required to review the question of whether its power was denied by s 12A(1aa) by reference to the evidence at the hearing and could not simply rely upon its preliminary determination. Further, the Tribunal found that in the light of Mr Bassett's evidence, the BDT's finding that the building work was completed on 30 March 1998 was unsafe. However, the Tribunal then determined that, on its analysis of the findings of the BDT and the evidence before the BDT, on its construction of s 12A(1aa) the complaint was made before the expiration of six years from the time when the building work was completed. Indeed, the Tribunal found that the building work had not been completed. Moreover, it found that there was insufficient doubt in this regard to sustain the grant of leave to review.

32 The Tribunal's reasons for reaching that conclusion may be summarised as follows.

33 First, the Tribunal stated and summarised some of the BDT's findings in relation to the nature and extent of the defects in the building of the house, in the following terms [29], [30]:

At page 15 of the reasons for decision, the [BDT] said:

The Tribunal finds on the balance of probabilities that the construction of the whole house was faulty and unsatisfactory and the Tribunal accepts the evidence of the inspectors, Mr Girando, Ms Herman and Mr Todd. It is the experience of the Tribunal that rarely will an engineer assert that a house is structurally unsound or assert demolition to be the least expensive and most effective means of remedying defective building work ...

The [BDT] found that on the facts of this particular case the defective building work:

(a) is so widespread from the roof sheeting to the footings of the house;

(b) has detrimentally [affected] the structural integrity of the home; and

(c) is not capable of being reasonably remedied by piecemeal work.

Details of the evidence of the various witnesses appear at pages 11-14 of the reasons, and include the following:

• footings are lacking;
• lack of waterproof membrane beneath the nursery;
• a deflection of 100 millimetres when one person stood on the floor in the sunroom;
• load-bearing columns are not filled with cement;
• the roof cover is poorly constructed, allowing water ingress into the roof space and damaging the ceiling;
• there is no waterproofing to the external balcony floor, which is constructed of particle board which has become wet and in places disintegrated;
• the balustrade is broken in places along the balcony due to failed welds;
• in all probability, the original slab lacked the necessary thickening and beams;
• damp proofing to the extension slabs is lacking;
• the roof framing does not appear adequate and there is substantial deflection in the ceiling;
• the main truss system appears to be wrongly supporting all the roof load and there is evidence of associated substantial cracking;
• the joist spacing supporting the upstairs floor is too wide;
• the balcony is not structurally safe.

34 The Tribunal then considered the decision of Commissioner Schoombee in Content Living Pty Ltd v McIntosh & Anor [2005] WADC 173. The Tribunal set out [50] of the Commissioner's reasons, to which I will refer later. The Tribunal then stated that subject to the issue of latent defects, to which the Tribunal would return later in its reasons, the question to be answered was whether any of the original defects the subject of the purchasers' complaint can be said to have prevented free and uninterrupted occupation [34].

35 The Tribunal's essential reasoning is contained in [38], which is in the following terms:

The outcome in Content Living, which the applicant did not seek to challenge, relies upon the concluding words in s 12A(1aa), 'in a free and uninterrupted manner'. Commissioner Schoombee's focus upon these words is made explicit in [54] and the heading preceding that paragraph. However, there might be cases where the focus is on the preceding words in the subsection, 'fit for occupation'. There is no reason to presume that 'fit for occupation' and 'in a free and [uninterrupted] manner' are co-extensive. The defect which ultimately founded Commissioner Schoombee's decision, the owner's inability to use a bath, led to a conclusion of no free and uninterrupted occupation six years prior to the filing of the complaint, and therefore the matter was not time barred. Compared with the defects found by the Disputes Tribunal in this case, the problems with a bath pale into insignificance, yet the applicant argues against the completion of building work on the basis of actual occupation of the house without the interruption for a number of years. This argument in my view ignores the primary requirement that the building to which the work relates becomes fit for occupation. A house which is so structurally and fundamentally flawed cannot on any view be fit for occupation. Further, the qualification relating to latent defects in Commissioner Schoombee's reasons at [50] does not apply, because the serious defects as found by the Disputes Tribunal remained and continued to compromise the fitness for occupation of the house.

36 The parties' submissions invited competing readings of these aspects of the Tribunal's reasons. I will identify the way in which I read the Tribunal's reasons in the course of explaining my conclusion that the Tribunal did not err in law in rejecting Mr Braham's contentions based on s 12A(1aa).

Ground 2: the proper construction of s 12A(1aa)

37 The evident purpose of the subsection is, as Commissioner Schoombee said in Content Living [50], to provide a cut-off for complaints to the BDT six years after the building became fit for occupation in a free and uninterrupted manner, irrespective of what later repairs may be carried out. That purpose may be discerned from the language of subsection (1aa). It is also supported by the second reading speech of the minister in support of the Bill by which subsection (1aa) was inserted: Western Australia, Parliamentary Debates, Legislative Council, 18 October 1983, 3199, (Hon J M Berinson, Attorney General).

38 Two issues as to the construction of subs (1aa) arise from the submissions in this appeal. First, in [38] of its reasons, the Tribunal stated that there was no reason to presume that 'fit for occupation' and 'in a free and uninterrupted manner' are coextensive. With respect, it is not entirely clear to me what the Tribunal meant by that observation. What is clear, in my opinion, is that the two phrases should not be considered in isolation each from the other. They are two elements of a composite phrase. The question to which s 12(1aa) directs attention is not when was the building fit for occupation, nor is it when was the building occupied in a free and uninterrupted manner. The question is when the building became 'fit for occupation in a free and uninterrupted manner'.

39 However, to the extent that the Tribunal may have departed from that approach, any such departure did not lead it into error.

40 In substance, the reasoning of the Tribunal was that because the house was not fit for occupation, it therefore was not fit for occupation in a free and uninterrupted manner. There is, in my respectful opinion, no error in that reasoning. In my opinion, the words 'in a free and uninterrupted manner' are intended to make the required state for completion of the building more difficult to achieve than if the test were simply fitness for occupation. In other words, buildings which are 'fit for occupation in a free and uninterrupted manner' are a subset of buildings that are 'fit for occupation'. Thus if a building is not fit for occupation it cannot be fit for occupation in a free and uninterrupted manner.

41 The other question of construction of subsection (1aa) relates to the relevance, for the purpose of determining fitness for occupation in a free and uninterrupted manner, of latent defects. In Content Living Commissioner Schoombee said as follows:

In my view the only sensible interpretation of s 12A(1aa) is that it was meant to provide a cut off point for complaints to the Disputes Tribunal six years after the building became fit for occupation in a free and uninterrupted manner irrespective of what later repairs are carried out. Once any initial substantial defects, which prevented free and uninterrupted occupation, have been fixed or repaired there is no reason why the limitation period of six years should not start to run. If an initial substantial defect is not repaired properly so that it is still interfering with the owner's free and uninterrupted occupation, the limitation period will not start to run. If a defect is only discovered at a later stage, it must be a latent defect which could not of itself have prevented free and uninterrupted occupation, because the owner was not aware of it. As long as the defect is discovered within the six year period after the owner enjoyed free and uninterrupted occupation the owner can still file a complaint. But the period in which the complaint can be filed will be shortened by the time that it took to discover the defect after the owner had free and uninterrupted occupation [50].

42 In that passage, her Honour found that a latent defect will not preclude the six-year period under subsection (1aa) from commencing to run. If that construction were accepted, then, arguably at least, the Tribunal may be said to have erred in law. That is because, arguably, the Tribunal took into account defects which were or may have been latent in determining that the house was not fit for occupation.

43 However, in my opinion, when appropriate weight is given to the ordinary meaning of the words 'fit for occupation in a free and uninterrupted manner', the fact that a defect is latent does not require it to be excluded from consideration in determining whether, at a given point in time, the building work is complete. My reasons for that opinion are as follows.

44 In construing a statute regard is to be had to its language, to the object or purpose of the Act so far as it may be discerned, and to considerations of inconvenience or improbability of result: Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; (2004) 218 CLR 273 [11].

45 As a matter of ordinary language, a building with latent structural flaws so serious as to require demolition of the building cannot be said to be fit for occupation. That in substance is the approach the Tribunal adopted [38].

46 In particular, it is important to notice that, as I have said, the question to which subsection (1aa) directs attention is a question of fitness. As a matter of ordinary language, whether a building has reached the relevant stage of fitness involves an objective evaluation of its state at the relevant point in time. Whether particular defects of the building were, at the relevant time, known, unknown or unknowable would not bear upon whether the building was or was not fit for occupation.

47 It is for that reason that I respectfully disagree with the observation in Content Living that:

If a defect is only discovered at a later stage, it must be a latent defect which could not of itself have prevented free and uninterrupted occupation, because the owner was not aware of it [50].

48 The latent defect may not have prevented free and uninterrupted occupation. However, a latent defect of sufficient seriousness can prevent a building from being fit for occupation in a free and uninterrupted manner.

49 The question is whether consideration of the object and purpose of the subsection, in the context of s 12A as a whole, and any considerations of improbability of result, justify a departure from the ordinary and plain meaning of the language of the subsection.

50 If considerations of purpose and improbability of result are said to justify a departure from the ordinary meaning of the language of the statute then an alternative construction must be identified. If latent defects are to be excluded from consideration then the section is to be read as if it had added to it a qualification to the effect 'so far as is known or knowable at the time'.

51 However, to my mind, considerations of purpose, object and improbability of result do not justify reading the subsection in a way that departs from its ordinary meaning in this way.

52 An argument for reading the qualifying words into the statute so as to exclude latent defects, based upon purpose, might be as follows. The legislation creates what is, in effect, a limitation period for complaints to the BDT. The purpose of imposing a limitation period is to give builders a degree of certainty and security in planning their affairs. It enables them to proceed on the basis that six years after the date when the building was completed (as defined), the builder is no longer exposed to claims of this kind. If latent defects are taken into account, this purpose is imperfectly achieved. That is because the risk of the presence of latent defects would mean that a builder could never be certain of whether the six-year period had expired.

53 However, subsection (1aa) must be viewed in the context of s 12A as a whole. That section has, as part of its evident purpose, the object of providing a means by which a person dissatisfied with building work can obtain a remedy from the BDT. It is one thing to qualify the availability of that remedy by requiring it to be exercised within six years of when the building was, in fact, fit for occupation in a free and uninterrupted manner. It is, from the consumer's perspective, quite another thing to exclude the remedy in circumstances where by reason of an unknown and unknowable structural defect, a building was never fit for occupation at all, but because this did not emerge until more than six years later, a complaint is said to be too late. Subsection (1aa) reflects an accommodation of the interest of a consumer in having a remedy against a builder, and the interest of a builder in having certainty six years after a building was completed. Because the subsection involves a balancing of these two competing purposes it would not, in my opinion, be appropriate to depart from the ordinary meaning of the language of subsection (1aa) on the basis that to do so advances the purpose of providing security to builders. That would give unwarranted primacy to one of two competing purposes of s 12A as a whole.

54 The second reading speech of the minister is open to the interpretation that the minister contemplated that only structural faults which had appeared over the course of the six-year period would be the subject of a complaint to the BDT. However, the position in that respect is not entirely clear. In any event, it is the text of legislation, not secondary material such as a second reading speech, which is of paramount significance in construing legislation: Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529 [22], [82] - [84].

55 For these reasons, in my opinion the Tribunal did not err in its construction of s 12A(1aa).

56 Mr Braham submits that because there was no evidence before the BDT as to when the house was fit for occupation in a free and uninterrupted manner, the Tribunal erred in law in concluding that the building work the subject of the complaint had not been completed within the meaning of s 12A(1aa). Mr Braham makes three points in support of that submission.

57 First, he submits that the builder and the engineer who gave evidence on behalf of the Purchasers at the hearing before the BDT gave evidence that was directed to identifying and describing defects in the house and how such defects could best be remedied. Neither the builder nor the engineer was asked to express an opinion on whether the house was fit for occupation or fit for occupation in a free and uninterrupted manner. To that extent, I accept Mr Braham's submission.

58 In the absence of expert evidence to the effect that defects are so serious as to mean that a house is not fit for occupation, it is not, Mr Braham's first submission continues, open to a court or tribunal to find that the house is not fit for occupation. I do not accept that proposition. The question of whether a house or other building is 'fit for occupation' is not, in my opinion, of a nature that requires direct expert opinion before the Tribunal can reach a conclusion on the question. It is, in my opinion, open to the Tribunal to determine whether the existence of a given set of defects meant that the house did or did not meet the statutory description of 'fit for occupation in a free and uninterrupted manner'.

59 Secondly, the expert who gave evidence on behalf of the Purchasers inspected the house in 2004 or 2005, and not earlier. Mr Braham submits that that expert evidence therefore did not establish that the house had been unfit for occupation at all times prior to 2004, and that expert evidence was required to establish that assertion.

60 However, in my opinion, it was open to the Tribunal to infer that the defects described by the experts before the BDT had existed from the time that the relevant work was done. Apart from anything else, the defects identified and described by the experts (summarised in [30] of the Tribunal's reasons) were, by their nature, apparently the result of the building process rather than the result of subsequent events or the passage of time.

61 Thirdly, Mr Braham points out that construction work on the house was done in two stages and that there was no evidence as to whether the house was fit for occupation when the house was initially built, as well as when the alterations were subsequently done. It is not entirely clear to me how this point is said to add to this ground of appeal. Insofar as Mr Braham complains of the absence of evidence to support a conclusion that he and Mrs Braham did the subsequent alterations, that is the subject of ground 4. I have already concluded that it was open to the Tribunal to find that the defects identified and described by the experts before the BDT were the result of (and existed since) the building work done in respect of the house and thereby rendered the house not fit for occupation. That being so, it would not seem to me to matter whether the defective work had occurred at the first stage of construction or in the second stage of subsequent alteration. Either way, the defective work meant that the relevant building work had not been completed, so the limitation period had not begun to run.

62 For these reasons, in my opinion, the Tribunal's reasoning in relation to subsection (1aa) does not reveal any error of law. Ground 2 consequently fails.

Ground 3: Service of the Preliminary Notice

63 Ground 3, so far as it was pressed, was in the following terms:

(a) [abandoned]

(b) by posting the letter, by registered mail, addressed to the appellant and Mrs Braham at 'c/- 191 Hay Street, Kalgoorlie', before making the complaint, the respondents had given the appellant and Mrs Braham a preliminary notice, as required by s 12A(2) of the BR Act, when there was uncontradicted evidence that the letter had not been delivered to the appellant and Mrs Braham and that the envelope containing the letter had been returned to the respondents unopened and, therefore, a preliminary notice had not been given before the complaint was made.

In those circumstances, the Tribunal should have found that there was substantial doubt whether the BDT had jurisdiction to hear the complaint or power to make the order to pay pursuant to s 12A(1) of the BR Act.

64 In my opinion, for reasons to be developed, the distinction between an error of law and an error of fact (or an error on a question of mixed law and fact) is significant to an assessment of the merits of this ground.

65 Section 12A(2) denies the jurisdiction of the BDT to act on a complaint under subs (1) unless, before the complaint is made, the complainant has given to the other party a preliminary notice under subs (3). In order to satisfy that precondition to jurisdiction, the Purchasers relied upon a letter they wrote to Mr and Mrs Braham dated 24 March 2004. Although there were issues before the Tribunal as to whether that letter (assuming it was served) constituted a valid preliminary notice under subs (3), on appeal to this court it was accepted that that was so. In that regard, Mr Braham abandoned ground 3(a).

66 The issue was, relevantly, and is whether the notice was 'given' to Mr and Mrs Braham. It was common cause that whether the notice was given was to be assessed by reference to s 76 of the Interpretation Act 1984 (WA). By that section, where a statute requires a document to be given, one method of doing so is to serve the document by post in accordance with s 75(1) of the Interpretation Act. Section 75(1) of the Interpretation Act is in the following terms:

Where a written law authorises or requires a document to be served by post, whether the word 'serve' or any of the words 'give', 'deliver', or 'send' or any other similar word or expression is used, service shall be deemed to be effected by properly addressing and posting (by pre-paid post) the document as a letter to the last known address of the person to be served, and, unless the contrary is proved, to have been effected at the time when the letter would have been delivered in the ordinary course of post.

67 The following findings of the Tribunal are not challenged. The purchasers sent the letter of 24 March 2004 by registered post. Mail sent by registered post is retained at the receiving post office (being the post office nearest to the address of the addressee). The receiving post office sends a card to the addressee. In this case, the letter of 24 March 2004 was returned unopened and marked 'Return To Sender'. The 'Return To Sender' stamp has a number of alternative reasons for the return listed. In this case, the box 'Delivery Refused' was ticked. Other boxes on the standard form include 'Left Address', 'Unoccupied', 'Unclaimed' and 'Unknown Address'.

68 The Tribunal considered the decision of the High Court in Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87. The Tribunal set out a passage from the judgment of the High Court (96 - 97), and then made the following observations. First, the High Court noted the paradox arising from the cases to which it referred that where non-delivery is proven, although under the equivalent section in the Queensland legislation service is deemed to have occurred, the non-delivery would preclude the establishment of service at any particular time. Secondly, it is non-delivery, not non-receipt, which will have that effect. Thirdly, the fact, if it be established, of non-receipt will not displace the presumption that delivery has been effected at the time at which it would have taken place in the ordinary course of post. In my respectful opinion, there is no error in the Tribunal's summary of the reasoning of the High Court in Fancourt.

69 The Tribunal noted some of the possible alternatives on the standard 'Return To Sender' stamp, including 'Left Address', 'Unoccupied', 'Unclaimed' and 'Unknown address'. The Tribunal stated that what the notation 'Delivery Refused' records is the response to notification of the availability of the item for collection. The Tribunal concluded that that response is not part of the series of acts amounting to delivery, but rather constitutes a failure to receive. Consequently, the Tribunal found that Mr Braham had failed to establish 'the contrary' for the purpose of s 75 of the Interpretation Act, namely the non-delivery of the preliminary notice.

70 I am not satisfied that any error of law is revealed in the reasoning of the Tribunal in reaching this conclusion. The Tribunal's finding that the notation 'Delivery Refused' records the response to notification of the availability of the item for collection was a finding of fact that was, in my opinion, open to it in the sense referred to in [25] of these reasons. In other words, that finding cannot, in my opinion, be said to reveal an error of law on the ground of absence of evidence. Once that finding of fact is made, there is no error of law in the Tribunal's conclusion that non-delivery was not proved.

71 Mr Braham relied upon the decision of Master Bredmeyer in Giustginiano Nominees Pty Ltd v Redan Pty Ltd [1999] WASC 95 [6]. In that case, the letter had been returned to the sender undelivered. The evidence was that the receiving post office had left two cards at the stated address. The cards said that the registered item was awaiting collection at the post office. The letter was never collected and was subsequently returned to the sender. In that context, Master Bredmeyer observed, in obiter dicta, that because the letter was returned to sender undelivered, the 'contrary had been proven' for the purposes of s 109Y of the Corporations Law (Cth) (repealed) (which was in substantially similar terms to the provisions relevant to this appeal).

72 What the master said involved a finding of fact on the evidence before him. The master's observations do not state, as a universal proposition of law, that whenever a letter is returned to sender undelivered, the contrary will have been proven for the purposes of legislation such as s 75 of the Interpretation Act.

73 In oral submissions, counsel for Mr Braham identified the alleged error of law on the part of the Tribunal on this ground as being the failure of the Tribunal to find that the contrary had been proven for the purposes of s 75 of the Interpretation Act. Whether, for the purpose of s 75, the contrary has been proven is a question of fact, or mixed fact and law, to be determined on the basis of all of the circumstances. Thus ground 3 does not in my opinion reveal any error of law on the part of the Tribunal. Consequently, ground 3 fails.

The Tribunal erred in law in finding that the BDT had made no error when it found that the appellant and Mrs Braham had carried out the building work the subject of the complaint when there was no or no sufficient evidence before the BDT to support that finding. The Tribunal should have found that, in the absence of such evidence, there was substantial doubt as to whether the appellant and Mrs Braham had carried out the building work the subject of the complaint and, therefore, substantial doubt as to whether the BDT had the power to make the order to pay against the appellant and Mrs Braham pursuant to s 12A(1) of the BR Act.

75 It is to be noticed that the ground of appeal is in terms that there was 'no or no sufficient evidence' before the BDT to support the finding that Mr and Mrs Braham carried out the building work the subject of the complaint. When the matter was before the Tribunal, it would have been open to the Tribunal to form a view based on sufficiency rather than absence of evidence. In other words, the Tribunal might have decided that the question of the sufficiency of the evidence before the BDT gave rise to sufficient doubt to warrant the grant of leave to review under s 41(2) of the Builders Registration Act.

76 However, in the context of an appeal to this court from the decision of the Tribunal, it is only an error of law which can be the subject matter of an appeal. Ground 4 does not identify the error of law in terms beyond the conclusionary assertion that in finding that the BDT had made no error when there was 'no or no sufficient evidence before it', the Tribunal erred in law. In oral submissions, counsel for Mr Braham contended that the error of law lay in the failure of the Tribunal to recognise the complete absence of evidence before the BDT. Thus this ground can succeed only if Mr Braham demonstrates an absence of evidence; insufficiency of evidence would not amount to any error of law on the part of the Tribunal. I refer in this respect to the principles outlined at [23] - [25] earlier in these reasons. To my mind, that distinction is critical to the disposition of this ground of appeal.

77 The Tribunal identified facts which, it found, the BDT was entitled to take into account in drawing the inference that Mr and Mrs Braham had constructed the house and performed the subsequent alterations to it. The only building permit had been granted to Mr and Mrs Braham. There was no evidence or other material positively suggesting that anyone other than Mr and Mrs Braham had been involved in the original building work or in the subsequent alterations. The original house did not comply with the approved plans. The work done, including the extensions, was found to be done in an unsatisfactory way and to an unsatisfactory standard. The Tribunal found that those matters meant that it was open to the BDT to find that the alterations had been performed by Mr and Mrs Braham.

78 In my opinion, no error of law is revealed by that reasoning. The question for me, on this appeal, is not whether I would have drawn the inference drawn by the BDT. Nor is the question whether it was reasonable for the BDT to have drawn the inference. Rather, the question is whether it can be said that the inference was not open. In my opinion, the facts and matters I have set out in the preceding paragraph meant that it was open to the BDT to find that Mr and Mrs Braham had done the alterations.

80 Mr and Mrs Braham did not participate in the proceedings before the BDT.

81 A hearing on jurisdiction was held on 19 August 2004. A directions hearing was held on 9 February 2006, and the substantive hearing of the complaint was held 24 August 2006 and 1 September 2006.

82 The BDT found that correspondence from the solicitors for the Purchasers to Mr and Mrs Braham was correctly addressed, namely care of 191 Hay Street, Kalgoorlie, but was returned. The BDT's correspondence and notices were also sent to the same address but were not returned. The BDT found that Mr and Mrs Braham knew of the proceedings and of the hearing dates of 24 August 2006 and 1 September 2006. Further, the BDT found that Mr Braham was not prevented by inclement weather, as he had claimed in a telephone conversation with an officer of the BDT, from attending the hearing on 24 August 2006.

83 The BDT found that Mr and Mrs Braham had ample opportunity to participate in the proceedings, obtain evidence and adduce evidence before it, but that they had eschewed any involvement or participation in the proceedings from their commencement in March 2004.

84 The BDT found that any prejudice caused to Mr and Mrs Braham by the matter proceeding in their absence 'was caused entirely by their own contumelious disregard for the proceedings and was outweighed by the prejudice that would be suffered by the [Purchasers] not having the matter finally determined'.

85 Before the Tribunal, Mr Braham contended that once the BDT reached the stage where it was considering making an order to pay in the sum of $425,000, on the basis that that amount represented the cost of demolition and reinstatement of the building, it should have given notice to Mr and Mrs Braham to give them an opportunity to attend and be represented, or to adduce evidence or make submissions. It was submitted to the Tribunal that Mr and Mrs Braham would reasonably have expected that the BDT would only make an order that they rectify defects, or pay for the cost of rectification of the defects, rather than the cost of demolition and rebuilding.

86 At [16] the Tribunal summarised the findings of the BDT to which I have already referred.

87 The Tribunal accepted that the BDT was required to act in a way that was consistent with procedural fairness. The Tribunal cited a passage from the reasons of the Full Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576, 590 - 591, in the following terms:

Where the exercise of statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question [71]. (Tribunal's emphasis)

It was not in doubt, on this appeal, that that passage represented an accurate statement of the relevant principles.

88 At [72] of its reasons the Tribunal said as follows:

Here, it was unnecessary for the Disputes Tribunal to identify to the applicant that an order to pay was a possible outcome, as that is one of the alternatives in the legislation. Although it is true that the question of remedy is at large, in the sense that the Disputes Tribunal can make an order to pay in any amount, provided that there is appropriate evidence to support it, there might be some cases where the outcome is so far removed from that which a reading of materials filed before a hearing would indicate that, where a respondent has failed to attend the hearing for whatever reason, he should be given the opportunity to respond to such a possible outcome. Each case needs to be determined on its own circumstances.

89 The Tribunal found that on 17 August 2006, a week before the first day of the hearing, Mr and Mrs Braham had been served with a bundle of material. That bundle had included a structural report of an engineer which had stated that the preferred repair method was to demolish and reconstruct the residence. The bundle of documents also included a quotation from a builder which expressed the view that for a number of reasons there stated, it was preferable to rebuild rather than to repair the building. The invoice attached to the builder's quote was for $350,000 exclusive of GST (ie $385,000). At the hearing before the BDT, in his evidence the builder revised the quotation to $425,000 inclusive of GST.

90 Further, the Tribunal found that copies of the engineer's report and the builder's quote had been sent by the Purchasers to Mr and Mrs Braham by letter dated 6 January 2006. A further letter dated 30 January 2006 stated that according to an engineer's report, it was possible that the purchasers may have to move out of the house while it is fixed or knocked down and rebuilt. That correspondence was sent to the correct address, but had been returned undelivered.

91 The Tribunal came to its conclusions on the procedural fairness ground as follows:

In all of these circumstances, there was, in my view, no obligation on the Disputes Tribunal to do as the applicant urges it should have. On the basis of the evidence before the Disputes Tribunal, the applicant was apprised that the preferred method of rectification in the opinion of the respondents' witnesses was to demolish the house and rebuild it. The applicant was provided with those documents by post in January 2006 but ignored them. Even if one considers that he should be forgiven for not accepting that mail, he was served personally with documents which informed him of the preferred method of rectification a week before the hearing. The applicant was provided with ample opportunity to respond to the very clear suggestion that rectification by demolition and rebuilding was the appropriate course, but failed to do so. It was not necessary for the Disputes Tribunal to delay the matter further to provide yet another opportunity [79].

92 Ground 5 contends that the Tribunal erred in law in finding that the BDT did not fail to afford Mr and Mrs Braham procedural fairness.

93 At the hearing of the appeal Mr Braham submitted that the error of law was the failure of the Tribunal to find that the BDT did not meet the requirements of procedural fairness in all the circumstances of the case. No error of legal principle was said to have been made by the Tribunal. In particular, there was no criticism by Mr Braham of the reliance by the Tribunal on the principle stated in Alphaone. Nor was there any criticism of the statement of the position in [72] of the Tribunal's reasons, which I have set out above.

94 The question raised by ground 5 is whether, in the circumstances as outlined by the Tribunal, the BDT failed to afford procedural fairness to Mr and Mrs Braham. There was no attack on any of the findings of the Tribunal as to the circumstances relevant to whether procedural fairness had been afforded to Mr and Mrs Braham. (Any attack on those findings would have come up against the hurdle of demonstrating an error of law in the making of such factual findings.)

95 In my opinion, for the reasons that follow, no error of law is revealed in the Tribunal's reasons for dismissing the procedural fairness complaint.

96 The Tribunal correctly identified that the starting point in determining the content of procedural fairness was the statutory context. See in this regard National Companies and Securities Commission v The News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296, 326; Barratt v Howard [2000] FCA 190; (2000) 96 FCR 428 [54] - [55]. That requires attention to be given to s 12A, which empowers the BDT to make either of two orders: an order to remedy, or an order to pay such costs of remedying the building work as the BDT considered reasonable. I do not accept Mr Braham's submission that an order calculated by reference to the costs of demolition and rebuilding is a 'radical departure' from what is contemplated by the terms of the Act. Remedying defects in building work may involve repair or, in other cases, replacement of certain parts. If the problems are substantial enough, remedying the defects may require demolition and reconstruction. What is reasonable will depend upon the circumstances.

97 In Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115, Martin CJ outlined the following general principles [3] - [4]:

It is well established that the precise content of the requirements of procedural fairness in any particular case will depend critically upon the statutory framework within which the relevant power falls to be exercised, and the facts and circumstances of the particular case - see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152. Because of the large variety of statutory frameworks in which the obligation to provide procedural fairness arises, and the infinite variety of factual circumstances in which the determination of the precise content of the requirements of procedural fairness might arise, it is impossible to lay down a universally valid test or norm which can be applied to determine whether procedural fairness has been provided in each and every case - see Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475, at 503-504, (cited with approval in SZBEL).

A court required to determine whether a decision maker has departed from the requirements of procedural fairness must therefore analyse all facts and circumstances relevant to the purported exercise of the power, viewed in the context of the statutory framework conferring the relevant power, for the purposes of ascertaining whether there has been practical injustice in the particular case - Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37].

98 Section 37 of the Builders Registration Act is in the following terms:

(1) The Disputes Tribunal shall cause to be given to a person who is a party to proceedings before the Disputes Tribunal reasonable notice of the time when and place where it intends to conduct those proceedings, and shall afford any such person a reasonable opportunity to call or give evidence, to examine or cross examine witnesses, and to make submissions to the Disputes Tribunal.

(2) If a person to whom notice has been given under subsection (1) does not attend at the time and place fixed by the notice, the Disputes Tribunal may conduct proceedings in the absence of the person.

99 Thus by s 37(1), Mr and Mrs Braham were entitled to notice of the proceedings and to participate fully in the proceedings. They chose not to exercise that right. That being so, the BDT was entitled to proceed in their absence: s 37(2). I do not suggest that there are no limits on the circumstances in which the BDT might proceed in someone's absence. In this regard, I respectfully agree with the Tribunal's observation that 'there might be some cases where the outcome is so far removed from that which a reading of materials filed before a hearing would indicate that, where a respondent has failed to attend the hearing for whatever reason, he should be given the opportunity to respond to such a possible outcome' [72]. Each case needs to be determined on its own circumstances.

100 The Tribunal determined that the circumstances which it described did not call for a further opportunity to be given to Mr and Mrs Braham. Those circumstances included that:

(a) s 12A provides for an order to pay the cost of remedying which, in some circumstances, may involve demolition and rebuilding;

(b) in January 2008, letters and material showing that the Purchasers' case included a claim for the cost of demolition and reinstatement was sent to Mr and Mrs Braham but they caused the mail to be returned undelivered; and

(c) Mr and Mrs Braham were served with the relevant expert reports a week before the hearing.

I discern no error of law in the Tribunal's conclusion.

101 Mr Braham's submissions emphasised that the building expert relied upon by the Purchasers revised his quote in the course of the hearing. That revision was (when GST is taken into account) in an amount of $40,000. That is about 10% of the amount in question. The Tribunal was entitled to conclude that a revision of that magnitude, in the circumstances of the case, did not call for the BDT to give Mr and Mrs Braham a further opportunity to make submissions or present evidence.

102 For these reasons I am not satisfied that the Tribunal erred in concluding that, in the circumstances it described, the procedural fairness complaint failed. Consequently, ground 5 fails.

(a) the Tribunal did not err in its construction of s 12A(1aa);

(b) the Tribunal did not err in law (by making a finding that was not open on the evidence) when it concluded that the house was not fit for occupation in a free and uninterrupted manner.

1. Ground 3 fails because there was no error of law in the Tribunal's finding that the return to the Purchasers of the preliminary notice by letter of 24 March 2004, marked 'Delivery Refused', did not establish non-delivery of the preliminary notice.
2. Ground 4 fails because the finding of the Tribunal and the BDT that Mr and Mrs Braham built the house and constructed the subsequent alterations was open.
3. Ground 5 fails because in the circumstances found by the Tribunal Mr Braham was not denied procedural fairness by the BDT.