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[2013] WASAT 82
General information, not legal advice.
State Administrative Tribunal (WA)
2013-07-02
Original judgment source is linked above.
CITATION : COOPER and HEGARTY [2013] WASAT 82
MEMBER : MS J MCGOWAN (SENIOR SESSIONAL MEMBER)
Jurisdiction of Tribunal to hear complaints about building services Building Services (Complaint Resolution and Administration) Act 2011 (WA) Regulated building service Owner builder under s 45(1) of Building Services (Registration) Act 2011 (WA) Regulation 41 of Building Services (Registration) Regulations 2011 (WA) - Effect of s 37 of Interpretation Act 1984 (WA) on statutory rights under repealed Builders' Registration Act 1939 (WA) Whether right accrued Failure to serve notice of complaint on intended respondent in accordance with reg 6(4) of Building Services (Complaint Resolution and Administration) Regulations 2011 (WA)
Building Services (Registration) Regulations 2011 (WA), reg 6(2), reg 41
Interpretation Act 1984 (WA), s 37, s 37(1)
In June 2011, Mrs Cooper purchased a property in York from the respondent, Mr Hegarty. There was an unfinished house and rear room on the property. Mr Hegarty had built both.
In February 2012, Mrs Cooper lodged an incomplete and vague complaint form under s 5(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) with the Building Commission.
Between February and November 2012, the Building Commission made many requests to Mrs Cooper to comply with the regulatory requirements for the lodgment of a complaint (including the payment of a fee, and twice for the provision of the notice of proposed complaint and proof of service). It also asked for clear identification of the issues the subject of the complaint.
On 26 November 2012, Mrs Cooper lodged a notice of proposed complaint proof of service and complaint schedule with the Building Commission.
The complaint was referred to the Tribunal under s 11(1)(d) of the Building Services (Complaint Resolution and Administration) Act 2011.
Mr Hegarty sought a preliminary hearing to determine if the Tribunal had jurisdiction to hear the complaint. He submitted that there was an irregularity in the complaint process. The relevant notice of proposed complaint did not precede the complaint. If, however, the complaint was valid, the Tribunal could hear only those items in the complaint that were included in both the notice of proposed complaint and the complaint. Further, compensation could not be awarded under the Home Building Contracts Act 1991 (WA).
The Tribunal concluded that it did not have the jurisdiction to hear the complaint. This finding was based on the legislative framework.
Because there is not a home building work contract between Mrs Cooper and Mr Hegarty, her building services complaint can only be made against Mr Hegarty as either a registered builder or an ownerbuilder under s 5(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA).
In relation to the rear room, although he had built it, Mr Hegarty was not a deemed ownerbuilder under reg 41 of the Building Services (Registration) Regulations 2011 (WA) because he had not been the named ownerbuilder on a building licence for the rear room. There was no building licence issued for it. It was an illegal structure.
Mr Hegarty could potentially, however, be liable for complaint items in the rear room using an alternative approach. Under the provisions of the Builders' Registration Act 1939 (WA) which was repealed on 29 August 2011, the Building Disputes Tribunal had jurisdiction against owner builders. An ownerbuilder under that legislation did not need to be the nominated ownerbuilder on the building licence.
Section 37(1) of the Interpretation Act 1984 (WA) provides that if a right under the Builders' Registration Act 1939 had accrued by a complainant taking appropriate steps to enable the complainant to take advantage of the right by the date of the repeal, then that right would be preserved. A complainant would be able to enforce it under the Building Services (Complaint Resolution and Administration) Act 2011. The Tribunal found that, on the material before it, Mrs Cooper's right had not accrued prior to 29 August 2011, the date the Builders' Registration Act 1939 was repealed.
The Tribunal concluded it had no jurisdiction to hear the complaint related to the rear room. In any event, it being an illegal structure, the Tribunal cannot make an order that relates to an unlawful structure.
In relation to the house, Mr Hegarty was a deemed ownerbuilder under reg 41 of the Building Services (Registration) Regulations 2011 because he had been an ownerbuilder in relation to the house for which a building licence had been issued. Thus, on the face of it, Mrs Cooper's complaint was about a regulated building service. However, Mrs Cooper had not, in her two notices of complaint, complied with s (5)(5)(b) of the Building Services (Complaint Resolution and Administration) Act 2011 relating to the preliminary action required before making a complaint, and/or s 5(6) of the Building Services (Complaint Resolution and Administration) Act 2011 relating to the manner and form of the complaint approved by the Building Commission. The complaint did not relate to items in the first notice, and the second one did not precede the complaint by the requisite 14 days.
The Tribunal concluded that it had no jurisdiction to hear the complaints related to both the rear room and the house.
Andrews and Building and Maintenance Services (WA) Pty Ltd [2012] WASAT 173
Filimon and Rimmer [2013] WASAT 13
1 These reasons are to address, as a preliminary issue, whether the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BS(CRA) Act) gives the Tribunal jurisdiction to hear and determine matter no CC 220 of 2012. The Tribunal concluded that it does not.
2 The applicant (Mrs Cooper) purchased a property from the respondent (Mr Hegarty) in June 2011. Settlement was in August 2011. The property is at Lot 113 Marley Road/Quairading Road, York. On the property is a house and a separate additional room (rear room). When Mrs Cooper purchased the property, the 'for sale' advertisement on the realestate.com.au website referred to the house and the rear room as structures which were 'requiring substantial finishing work to be sold on walk in walk out with building materials to finish the house'.
3 The house and rear room were built by Mr Hegarty. The building licence to build the house was issued by the York Shire Council on 12 September 2005. There is no information whether the Council had extended the licence beyond the 2 year construction timeframe. There was no building licence to build the rear room.
4 Mrs Cooper's complaint is about both the house and the rear room.
5 Mrs Cooper lodged a building service complaint with the Building Commission on 13 February 2012. The complaint was about plumbing and electrical work in the house. Over the next nine months, the Building Commission made numerous requests to Mrs Cooper to explain exactly what the items of complaint were and also to regularise her complaint. She was requested to:
6 Mrs Cooper lodged her first notice of proposed complaint on 6 July 2012. It identified the items in dispute as:
Plumbing work to property and
Electrical wiring to property and
Room attached to rear of house[.]
7 On 26 November 2012, she lodged a second notice of proposed complaint, together with a proof of service and an undated complaint schedule.
8 The second notice of proposed complaint identified the items in dispute as:
Rear room/bathroom/toilet and laundry according to the York Shire [Council].
This room is not included in plans submitted by you Therefore it has been condemned and needs to come down[.]
9 In the section of the form seeking a description of the remedy sought, Mrs Cooper wrote:
to have this room rebuilt to the shire[']s approval. Also gap between interior wall and outside wall not wide enough for insulation.
10 In the section of the form requesting the list of evidence to be relied upon by Mrs Cooper, she wrote:
When inspected by a shire inspector he found that the floor had white ants [and as] a result the floor had collapsed in one corner. We have had to move out.
11 The complaint schedule lists the items in dispute as:
(1) rear room to house [w]hich has been condemned by York Shire [Council].
(2) White ants [h]ave been found under floor which has now collapsed in one corner.
(3) gaps between inside [w]all and outside Wall not wide enough for insulation also ceiling battens not done [p]roperly in a result part of ceiling had collapsed.
(4) I have been advised by York shire had to Remove this Room and Rebuild it which I am now doing in result we had to move out of House and I am Renting a House in town which I feel I shouldn[']t have had to do but under the circumstances it was necessary to move out as there was no water to the house for showers etc.
(5) This room was not included in Plans for [the York Shire Council].
12 Items 1, 4 and 5 refer specifically to the rear room. The notice of proposed complaint referred to the white ant infestation (item 2) in the context of the rear room (see [10]).
13 There is no doubt that Mrs Cooper was very confused about what information she needed to provide and the sequence and format in which it was to be provided in order for the Building Commission to accept and investigate her claim. Her attempts to work through these requirements resulted in a patchwork of confused and confusing documents, and most relevantly, changing items in dispute.
14 In February 2013, Mrs Cooper arranged for the rear room to be 'deconstructed'. This was because she understood she had to. The York Shire Council had told her there was no approval to build it. The rear room no longer exists.
15 The matter was referred to the Tribunal under s 11(1)(d) of the BS(CRA) Act.
16 There have been two directions hearings. Mrs Cooper was selfrepresented; Mr Hegarty had legal representation.
17 The first directions hearing was to direct Mrs Cooper to explain, using a simplified Scott Schedule format (table), the work that had not been carried out in a proper and proficient manner or which is faulty or unsatisfactory. At that directions hearing, the respondent's counsel said that he would be seeking, by way of a preliminary hearing, a determination in relation to whether the Tribunal has the jurisdiction to hear and determine the complaint.
18 Mrs Cooper duly filed the requested table. The respondent, in turn, filed responses.
19 A second directions hearing was then held to program the matter to a hearing. Mr Hegarty's counsel said he still wanted the Tribunal to deal with the issue of jurisdiction at a preliminary hearing.
it was considered appropriate, given that one of the objectives of the Tribunal in dealing with matters within its jurisdiction is to achieve the resolution of complaints 'fairly' (s 9 of the State Administrative Tribunal Act 2004 (WA) (SAT Act)), that the submissions in relation to jurisdiction be provided in writing and the issue decided on the papers. This would give Mrs Cooper time to consider them and to seek advice if she so wished.
21 On 7 May 2013, written submissions as to jurisdiction were received from Mr Hegarty's counsel.
22 These submissions centred around the following propositions:
23 Mrs Cooper responded to the submissions by letter dated 13 May 2013, and forwarded letters from the York Shire Council on 21 and 22 May 2013.
is that Mrs Cooper's complaint to the Building Commission under s 5(1) of the BS(CRA) Act was not lodged prior to 29 August 2011. This date is relevant to the jurisdiction of the Tribunal to hear and determine complaints against an owner-builder, being the date that the Builders' Registration Act 1939 (WA) was repealed (Government Gazette, 26 August 2011, p 3475 - 3476).
The issue before the Tribunal - does the Tribunal have jurisdiction?
25 Having considered the material provided by the parties to both the Tribunal and the Building Commission, the submissions, and the relevant legislation, regulations, and authorities, I conclude that the Tribunal does not have the jurisdiction to hear this complaint for the reasons below.
The statutory provisions related to making a complaint
26 Section 5(1) of the BS(CRA) Act provides that 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. (Tribunal's emphasis)
27 Therefore, Mrs Cooper's complaint to the Building Commission must be about a regulated building service.
28 The expression 'regulated building service' is defined in the definitional s 3 of the BS(CRA) Act to mean:
... a building service carried out by a registered building service provider or an approved owner-builder[.]
The expression applies also to 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.
29 The same definitional section defines 'registered building service provider' and 'approved owner-builder' as follows:
registered building service provider has the meaning given in the Building Services (Registration) Act 2011 section 3;
approved owner-builder means a person to whom an owner-builder approval has been granted under the Building Services (Registration) Act 2011 section 45(2).
30 The definitional section refers to approval being granted under s 45(2) of the BS(R) Act, but comment has previously been made (Andrews and Building and Maintenance Services (WA) Pty Ltd [2012] WASAT 173) that the approval is, in fact, granted under s 45(1), not s 45(2) of the Act. Therefore, these reasons will refer to s 45(1) of the Building Services (Registration) Act 2011 (WA) (BS(R) Act).
31 The work giving rise to the complaint must have been carried out by Mr Hegarty as either a registered builder or an owner-builder to whom approval has been given under s 45(1) of the BS(R) Act.
32 It was common ground that Mr Hegarty was issued a building licence to build the house as an owner-builder_,_ not as a registered builder.
33 There was no licence issued to build the rear room, which did not appear on the plans of the house submitted at the time the building licence for the house was granted.
34 A building services complaint can only be made against an approved owner-builder. Mr Hegarty was not, when carrying out the work, an owner-builder. Although he had the necessary Builders' Registration Board (BRB) owner-builder approval (OB1488/05), such approval does not comprise (as stated on the BRB certificate) a building licence or an authority to construct. A building licence has to be obtained from the local authority.
35 There was no building licence to construct the rear room. The York Shire Council therefore classified it as an illegal structure.
36 Had Mr Hegarty obtained a shire licence to build the rear room, then the owner-builder status thus acquired by Mr Hegarty by the BRB approval may well have 'continued', due to the application of reg 41 of the BS(R) Regulations, which reads:
Continuation of owner-builder authorisation
A person who, before commencement day, had owner-builder authorisation to construct a building is to be taken to have been granted an owner-builder approval on commencement day to carry out building work for the building.
But he did not. Therefore, Mr Hegarty was not a registered builder, or deemed an owner-builder under reg 41 of the BS(R) Regulations to whom approval has been given under s 45(1) of the BS(R) Act. Therefore, Mrs Cooper's complaint insofar as it relates to the rear room is not about a regulated building service.
37 If Mrs Cooper had made a complaint before 29 August 2011, it would have been brought under s 12A of the BR Act. The Building Disputes Tribunal would have had the jurisdiction to hear her claim because it was empowered to make an order against any person who carried out building work. Whether that person was an approved owner-builder or not was irrelevant for the purposes of a claim under s 12A of the BR Act.
38 This anomaly raises an obvious question - does the right that Mrs Cooper had against an unapproved owner-builder under the repealed BR Act 'flow through' into a right for her to claim under the post 29 August 2011 legislative regime?
39 In Filimon and Rimmer [2013] WASAT 13, Senior Member Raymond published reasons providing the answer to that question. That case considered the right of potential complainants (Mr and Mrs Rimmer) to proceed under the BS(CRA) Act against an unapproved owner-builder (Mr Filimon). They would previously have had claims against Mr Filimon under the provisions of the repealed BR Act.
40 Senior Member Raymond's reasons provide a detailed analysis of what the effect of the repeal of the BR Act had on those potential claims, having regard to s 37 of the Interpretation Act 1984 (WA) (Interpretation Act). Section 37 reads:
(1) Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears -
(a) revive anything not in force or existing at the time at which the repeal takes effect;
(b) affect the previous operation of the enactment repealed or anything duly done or suffered under that enactment;
(c) affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable or any status or capacity existing prior to the repeal;
(d) affect any duty, obligation, liability, or burden of proof imposed, created, or incurred prior to the repeal;
(e) subject to section 11 of The Criminal Code and section 10 of the Sentencing Act 1995, affect any penalty or forfeiture incurred or liable to be incurred in respect of an offence committed against that enactment;
(f) affect any investigation, legal proceeding or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, burden of proof, penalty or forfeiture,
and any such investigation, legal proceeding or remedy may be instituted, continued, or enforced, and any such penalty or forfeiture may be imposed and enforced as if the repealing written law had not been passed or made.
(2) The inclusion in the repealing provisions of an enactment of any express saving with respect to the repeals effected thereby shall not be taken to prejudice the operation of this section with respect to the effect of those repeals.
41 Senior Member Raymond's analysis concluded that, in order for Mr and Mrs Rimmer to proceed against Mr Filimon under the BS(CRA) Act, it was necessary to explore whether, in respect of their claims, Mr and Mrs Rimmer had acquired any right under s 12A of the BR Act which accrued or was exercisable prior to 29 August 2011. If they had, the effect of s 37 of the Interpretation Act is to preserve that right, unless a contrary intention can be gleaned from the repealing legislation (which he concluded it cannot). However, as stated in his decision (having concluded that s 12A of the BR Act bestows a statutory right on Mr and Mrs Rimmer):
... the statutory right granted is unlikely to be regarded as an accrued right for the purposes of s 37(1) of the Interpretation Act unless the person asserting the right has taken appropriate steps, or some event specified by the legislation has happened, to enable him or her to take advantage of the right by the date of the repeal.
As will be seen from the scheme of s 12A of the [Builders' Registration] Act, a preliminary notice must be given before a complaint is made to the Building Disputes Tribunal and a copy is to be given to the Building Disputes Tribunal at the time the complaint is made.
In this instance, a notice of proposed complaint was filed with the complaint form. The notice was given in the form prescribed under the Building Services (Complaint Resolution and Administration) Regulations 2011 (WA). It included proof of service reflecting that service had been effected on 21 September 2011 (subsequent to the BS(CRA) Act coming into force).
Obviously, in these circumstances, Mr and Mrs Rimmer are not able to contend that their right to claim against Mr Philemon is preserved by the giving of notice on 21 September 2011 because the BR Act was repealed prior to that date. ...
42 Similarly in this matter, Mrs Cooper cannot contend that her right to make a complaint against Mr Hegarty is preserved. Without making comment at this point on the validity of the two notices of proposed complaint (their validity being an issue raised by the respondent's submissions and relevant to Mrs Cooper's complaints relating to the house), both notices were given pursuant to the Building Services (Complaint Resolution and Administration) Regulations 2011 (WA) (BS(CRA) Regulations).
43 The lodged proof of service in relation to the first notice of proposed complaint stated that service had been effected on 3 July 2012 and the second notice of proposed complaint on 21 November 2012. Both were served after 29 August 2011.
44 Mrs Cooper had not taken appropriate steps to enable her to take advantage of her right to make a claim against Mr Hegarty under the BR Act by the date of its repeal. But if she had, her claim was, as stated above, in relation to a now non-existent illegal structure.
45 The Tribunal cannot make an order that concerns an unlawful structure.
46 Therefore, (and independently of the reasons in [34 - 36] above that Mrs Cooper's complaint is not about a regulated building service), Mrs Cooper is not able to contend that her right to claim against Mr Hegarty is preserved by the notices of proposed complaint served in July or November 2012 because the BR Act was repealed prior to those dates. And, in any event, her claim related to an illegal structure.
47 Mrs Cooper cannot make a complaint about the rear room.
48 Mr Hegarty had a building licence to build the house. Without a consideration of whether that licence was still operative, at face value:
However, her claim must be brought in accordance with the BS(CRA) Act.
Has Mrs Cooper made her claim in the prescribed manner?
49 A complaint brought under s 5(1) of the BS(CRA) Act must be made in accordance with the legislation and the BS(CRA) Regulations. Section 5(5) of the BS(CRA) Act provides for regulations to be made.
50 Section 5(5)(b) of the BS(CRA) Act provides for the making of regulations about preliminary action required to be taken by a complainant before making a complaint.
51 Section 5(6) of the BS(CRA) Act provides that the complaint must be in the manner and form approved by the Building Commission.
52 Regulation 6 of the BS(CRA) Regulations relates to information that must be given to respondent by the complainant on a written notice of proposed complaint, including that the notice:
53 The complaint must include proof that the notice has been given as required; that is, at least 14 days before the complaint.
54 The documents on the Building Commission file provide the following time line:
Advice that the notice of Proposed complaint does not address the items of complaint adequately, advising her to lodge a new Notice of Complaint and serve it on Mr Hegarty
Notice of Proposed complaint and Proof of service served on Mr Hegarty
Complaint form schedule lodged at Building Commission
55 The obvious intention of reg 6 and, in particular, reg 6(2) of the BS(CRA) Regulations, is to give an intended respondent adequate notice about the complaint.
56 The notice of proposed complaint served on Mr Hegarty on 21 November 2012 did not precede the complaint (lodged on 26 November 2012) by the requisite 14 days.
57 But even if it did, item 3 in the schedule is the only item that relates to the house. The only common item on the notice of proposed complaint and in the complaint schedule is about white ant damage. But white ant damage is an item of complaint related to the rear room, not the house ([9]).
58 Mrs Cooper gave Mr Hegarty an earlier notice of proposed complaint on 3 July 2012 (the first notice).
59 The requirements under reg 6 of the BS(CRA) Regulations were not satisfied by that first notice, which related to plumbing work and electrical wiring to property (and also to the room attached to the rear of the house). These are not complaint items listed in the complaint schedule.
60 Therefore, the Tribunal does not have jurisdiction to hear Mrs Cooper's complaint related to item 3 in the schedule because the prescribed notice of proposed complaint has not been served on the respondent at least 14 days before the complaint or at all.
Did Mr Hegarty carry out work for Mrs Cooper under a home building work contract?
61 The expression 'regulated building service' is further defined in the definitional s 3 of the BS(CRA) Act to mean:
...
(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[.]
62 Section 3 of the Home Building Contracts Act 1991 (WA) defines 'home building work' as 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[.]
63 Although there were dwellings constructed (the house and the rear room) at the centre of this dispute, there was no home building work contract between Mr Hegarty as a builder and Mrs Cooper as an owner. The contractual nexus between the parties was a sale of land contract.
64 The building work the subject of the complaint was not carried out for Mrs Cooper by Mr Hegarty under a home building work contract, or other contract, for fee or reward.
Can Mrs Cooper bring a claim under s 5(2) of the BS(CRA) Act?
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.
66 Mrs Cooper did not, and cannot, make a complaint to the Building Commission under s 5(2) of the BS(CRA) Act for the same reason as that explained in [64] - there is no home building work contract between Mr Hegarty and Mrs Cooper.
67 Mrs Cooper's complaint has, in any event, been made and the fee paid on the basis that it is a complaint under s 5(1) of the BS(CRA) Act.
68 The matters the subject of the complaint were not matters to which s 5(2) of the BS(CRA) Act applies.
69 The Tribunal concludes that Mrs Cooper's complaints in relation to both the rear room and the house are not complaints which the Tribunal has jurisdiction to hear.
I certify that this and the preceding [69] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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