Evidence before the Tribunal in relation to the preliminary issue

1. The Tribunal had the benefit of the following documentation before it:
   1. outline of submissions for determination of a preliminary issue filed on behalf of the respondent dated 15 June 2018.
   2. witness statement of the respondent dated 15 June 2018.
   3. bundle of documents filed on behalf of the respondent dated 15 June 2018.
   4. bundle of documents filed on behalf of the applicant dated 29 June 2018.
   5. witness statement of the applicant undated.
   6. bundle of supplementary documents filed by the respondent on 6 September 2018.
   7. hearing book produced by the Tribunal for the purposes of the hearing listed 17 September 2018.
2. At the hearing of the preliminary issue the Tribunal had the benefit of oral submissions made by the parties as well as oral evidence from the applicant and the respondent and also from Mr Stephen Thiel, of Colin Cook and Associates, being the accountant for Ennis Nominees.

1. The decision in Shami and Teo [2017] WASAT 73 (Shami) is the leading authority in respect to the question as to who carried out a regulated building service for the purposes of the BSCRA Act. In particular, the following paragraphs at [39]-[48] are particularly useful and are therefore set out in full below:
   1. As has already been stated, the provisions of s 37(1) and s 38(1) of the BSCRA Act are similar. They give the Building Commissioner and the Tribunal respectively the power to make a building remedy order in accordance with s 36(1) of the Act if the regulated building service that is the subject of a building service complaint has not been carried out in a proper and proficient manner or is faulty or unsatisfactory. The words 'carried out' appear in each of those subsections.
   2. In Diploma Construction (WA) Pty Ltd v South Central WA Pty Ltd [2015] WASC 289 (Diploma Construction), Mitchell J, in the course of considering the proper construction of s 38(1) of the BSCRA Act, referred to the case of Bradshaw v McGuire (unreported, WASC, Library No 6260, 30 April 1986 (Bradshaw) and made the following relevant comments:

1. Prior to the enactment of the [BSCRA Act], complaints about unsatisfactory building work were the subject of s 12A of the [Builders' Registration Act]. Section 12A enabled a complaint to be made 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'. When a Disputes Tribunal (and at an earlier time, a Board) was satisfied of this matter under s 12A(1) of the [Builders' Registration Act], it could order the person who carried out the work to remedy the faulty or unsatisfactory building work.

1. The operation of s 12A(1) of the Builders' Registration Act, as it stood in 1986, was considered by a Full Court comprised of Burt CJ, Wallace and Pigeon JJ in [Bradshaw]. ...

... a builder is responsible to the building owner for faulty workmanship carried out by subcontractors ... I agree with what Pidgeon J had to say thereon in Shaw v McLeod. (citation omitted)

... It would, in my view, be an erosion of what the legislature intended by s 12A for a builder to escape the jurisdiction of the Board by submitting that the work complained of was not within the builder's specialty and had been done by a specialized subcontractor. ...

1. In Bradshaw ... [the] argument that a builder does not 'carry out' work for which he engages a contractor was also rejected.
2. The similarity between the language of s 12A(1) of the Builders' Registration Act and s 38(1) of the [BSCRA Act] strongly suggests that the substituted provision is intended to operate in a similar manner to that established for the repealed provision. ...

1. ... Regard may be had to the explanatory memorandum to identify the purpose of the provisions, and a construction which promotes that purpose preferred, pursuant to s 18 and s 19 of the Interpretation Act 1984 (WA).
2. As referred to above, the operation of s 12A of the Builders' Registration Act was also considered in Shaw v McLeod (unreported, WASC, Library No 4707, 8 November 1982 (Shaw), which was an appeal from the decision of a Magistrate that the appellant had failed to comply with an order made under s 12A. One of the grounds of appeal was that the appellant was not the person 'who carried out the building work' within the meaning of that term in s 12A. Pidgeon J in Shaw, at 11, said:

[The Magistrate] considered the charge was validly brought against the accused and gave the following as his reasons:

'I consider that in referring to the person who "carried out the building work" s12A(1) of the [Builders' Registration Act] is referring specifically to the person responsible for the building of the edifice whatever it may be. I do not consider that it is the specific bricklayer, carpenter, plumber or such other tradesmen as actually did the work who is that person ...

My reading of the [Builders' Registration Act] as a whole leads me to the same conclusion as the learned Magistrate and that the person referred to as being the person 'who carried out the building work' would not be the subcontractors engaged. The person who physically carries out the work may not even be the subcontractors and could well be a bricklayer on wages or a builder's labourer. It could not have been the intention of the [Builders' Registration Act] that the [order] goes to such person. I consider that the words 'building work' in s.12A is the whole work the subject of the contract which normally would be the work in respect of which the permit issues or what his Worship describes as 'the edifice'[.]

1. The case of Voce v Watson (1989) 89 ACTR 1 (Voce) dealt with the proper construction of a regulation which imposed a duty on any person who 'carries out any building work' to take safety measures to prevent injury to persons engaged in the building works. Kelly J, at 7, referred to the intended meaning of the phrase 'person who carries out' as being:

... a person who, in effect, has the role of ensuring that the necessary building work is performed normally to its completion either by himself or by his servants or agents. It does not ... mean that every person who is actually performing any of the building work in question 'carries out' such building work[.]

1. Then Kelly J, went on to state in Voce, at 9:

When one turns to the meaning given the phrase 'carry out' in the Shorter Oxford Dictionary one finds that the relevant meaning is 'to conduct to conclusion'. This meaning may not, of course, be entirely applicable in respect of a partly completed building, but obviously in completing such a building the person concerned with the building work is carrying out the necessary building work from the beginning of the works upon which he is engaged.

1. The meaning given to the phrase 'carry out' in the Macquarie Dictionary Online (2017) is 'to accomplish or complete (a plan, scheme, etc.)'. That is similar to the meaning given to the phrase in the Shorter Oxford Dictionary referred to by Kelly J in Voce.
2. The Tribunal agrees with the view expressed by Mitchell J in Diploma Construction that the similarity between the language of s 12A of the Builders' Registration Act and s 38(1) of the BSCRA Act (and hence also s 37(1) of the BSCRA Act), strongly suggests that s 37(1) and s 38(1) are intended to operate in a similar manner to that established for s 12A.
3. Therefore, in construing the phrase 'carried out' in s 36(1) and s 37(1) of the BSCRA Act, the Tribunal adopts the approach taken by Wallace and Pidgeon JJ in Bradshaw and by Pidgeon J in Shaw regarding the construction of the phrase 'carried out' in s 12A of the Builders' Registration Act and also the approach taken by Kelly J in Voce regarding the construction of the phrase 'carries out' in the regulation considered in that case.
4. Accordingly, the Tribunal has decided that the proper construction of the phrase 'carried out' in s 36(1), s 37(1) and s 38(1) of the BSCRA Act is that it means the completion of the entirety of the building work of which the work the subject of a building service complaint forms part. That entirety of work could be described as 'the building project'. In the case of the construction of an entire building the building project will be the construction of the 'edifice' referred to in Shaw. In other cases the building project could be the completion of a building after it has reached a certain stage, or the alteration, improvement or repair of a building.
5. For the purposes of s 36(1), s 37(1) and s 38(1) of the BSCRA Act, it is the entirety of the work of the building project which is carried out, not the components of it. What follows from that construction is that a building remedy order can only be made against the person who had the role of ensuring that the entire building project which includes the work which is the subject of a building service complaint was 'carried out', or in other words 'brought to completion'. It does not matter whether the work was done personally by that person or by other persons whom they arranged to perform the various components of the overall work. However, it needs to be noted that for a building remedy order to be made against that person the building project must be a 'regulated building service' as defined in s 3 of the BSCRA Act.
6. What is made clear in the decision of Shami is that the entity who has carried out the regulated building service for the purposes of the BSCRA Act is not necessarily the person on site undertaking the mechanics of the work but is that entity which is responsible for the entirety of the building project. It is the entity who has the role of ensuring that the entire project was carried out and brought to a completed state.
7. In the current proceeding the parties disagree on who carried out the regulated building service the subject of the complaint recently lodged by the applicant with the Building Commission and which was incorporated within the terms of Building Remedy Order No. 22 of 2016. The applicant contends that he contracted with the respondent in his personal capacity at all times and it was he who ultimately carried out all of the elements of the overarching building project.
8. The respondent contends that at all times it was Ennis Nominees as trustee of the Trust, trading as MPAS, being an unregistered business name, who contracted to perform the works with the applicant and at all times had the overall responsibility for the building project and therefore for the purposes of the BSCRA Act carried out the regulated building service.

1. The parties have been associates for many years, having first met in the mid­1960's.
2. In late 2013 the applicant received contact from the City of Stirling following a complaint that the City of Stirling had received from the applicant's neighbour regarding asbestos in the roof of his residential property in Trigg. It appears that at some stage in either December 2013 or January 2014 the City of Stirling issued a Building Order requiring the applicant to remove asbestos sheets in the roof of his property.
3. The applicant was aware or became aware that the respondent had an asbestos removal license and he contacted him and asked for a quotation for the removal and disposal of the asbestos roof sheeting and also replacement of the main roof with colorbond. There was also some discussion in relation to additional works in relation to vents, sky lights, roof penetrations, replacement of structural timbers and battens, eaves, insulation and so forth.
4. Prior to viewing the property, in or about March 2014 the respondent provided the applicant with a written quote (document 1 of the applicant's bundle of documents). That quote provided as follows:

MPAS 177B Scarborough Beach Road

Mount Hawthorn 6012

A.B.N.58099659974 quotation Lic.no.wara418

Mr P Hawke 301 West Coast Highway.Mettams

Remove & disposal of asbestos roof sheeting

250 square metres

Replace colorbond roof on main roof.

Supply and fit front and rear gutter (standard) flashing

[variations include, vents. Skylights. Roof penetrations, replacement of structural timbers and battens. Eaves insulation] These items will priced as extras.

Paul Ennis mob 0407620857

GST incl total $26,000

1. The respondent then met with the applicant at his property in April 2014, together with another associate, Mr Rea, to inspect the necessary works and to discuss the quotation. The parties disagree on the ultimate agreement reached, however the verbal discussions appeared to build on the written quotation provided to the applicant the previous month. The applicant gave evidence that the respondent in the negotiation agreed to the price of $26,000 including all variations, (ts 20, 17 September 2018), that is the same price as the written quote but in respect of the provision of additional works.
2. The respondent gave evidence that having inspected the property that he agreed to perform the original requested works plus additional works for a total price of $33,000 plus GST (para 29 of the witness statement of Mr Ennis dated 14 June 2018).
3. The works were ultimately performed between April and June 2014 by the respondent, Mr Rea and two roof sub­contractors.
4. The materials required to perform the works were purchased using the bank account operated by Ennis Nominees (para 32 of the witness statement of Mr Ennis dated 14 June 2018).
5. When the works were completed the respondent prepared an invoice dated 30 June 2014 which he provided to the applicant (document 10 in the respondent's bundle of documents). The invoice had the same header as the quote in that it had in bold print 'MPAS' and the ABN number associated with the Trust. In addition it identified the terms of payment for the amount claimed, being $38,298.70, to be paid in seven days to Ennis Nominees and provided the relevant National Australia Bank details associated with that entity.
6. The applicant sent a cheque to the respondent dated 7 July 2014 made payable to 'MPAS' for the sum of $26,660 (document 7 in the applicant's bundle of documents).
7. The respondent retained a lawyer to send a letter of demand to the applicant on 9 July 2014 requesting that the total invoiced amount be paid in the amount of $38,298.70 otherwise action would be taken to recover the debt (document 12 of the respondent's bundle of documents).
8. Some weeks later the cheque sent by the applicant to the respondent was returned to the applicant.
9. In August 2014 the respondent lodged a claim in the Magistrates Court seeking to recover the amount invoiced to the applicant. The respondent stated that the form was completed in his personal name as he was unsure how to complete it and was unrepresented in the proceeding (para 42 of the witness statement of Mr Ennis dated 14 June 2018).
10. In the same month the applicant lodged his first building service complaint with the Building Commission.
11. On 9 December 2014 the Magistrates Court proceedings were settled by the parties on the basis that, on a no admission of liability, the applicant paid the amount of $33,000 to the respondent (document 13 in the applicant's bundle of documents).
12. Mr Ennis prepared an invoice in respect to the settlement amount of $33,000 which was provided to the applicant (document 14 of the respondent's bundle of documents). The tax invoice was on the header of Ennis Nominees and displayed the ABN number of the Trust. The amount was paid by the applicant and deposited into the bank account held by Ennis Nominees.
13. The evidence of the respondent and Mr Thiel is that all business activities undertaken by the respondent, primarily a jewellery business and to a lesser degree, building services, were conducted through the Trust (para 49 of the witness statement of Mr Ennis dated 14 June 2018 and ts 6, 17 September 2018). The jewellery business was conducted through a registered business name of Ennis Jewellers and the asbestos removal/building services were performed through the unregistered business name of 'MPAS'. Thus when the respondent received the payment of $33,000 in respect of the regulated building service it was deposited into the bank account held by Ennis Nominees as trustee of the Trust (document 14 of the respondent's bundle of documents). The funds were also accounted for in financial reporting by the Trust in the management report for the year ending 30 June 2015 (document 5 of the respondent's bundle of documents).
14. The complaint at the Building Commission proceeded and ultimately Building Remedy Order No. 22 of 2016 was made on 28 January 2016 requiring Ennis Nominees to perform various remedial works. Although Ennis Nominees sought to review the order it was ultimately confirmed by this Tribunal and thus Ennis Nominees undertook remedial works in order to comply with its terms.
15. At no time during the course of the Building Commission's management of the building service complaint, stemming from August 2014 to January 2016, did the applicant raise with it that the name of the respondent was incorrect (ts 32, 17 September 2018). Indeed during the first review proceeding with the Tribunal (being proceeding CC 134 of 2016) the applicant never raised with the Tribunal that Ennis Nominees was not the appropriate respondent. This is despite the fact that during the review proceeding the issue as to who carried out the regulated building service, albeit limited to whether the entity was Ennis Nominees or Mr Rea, was a matter determined by the Tribunal as a preliminary issue.
16. The applicant sought to convert Building Remedy Order No. 22 of 2016 pursuant to s 51 of the BSCRA Act on 31 May 2016. Ennis Nominees remained as the respondent in that proceeding, understandably because the underlying order the applicant was seeking to convert was made as against it. The Building Commissioner ultimately determined that parts of the building remedy order ought to be revoked and replaced with a monetary amount and made Building Remedy Order No. 236 of 2017 on 4 August 2017 requiring Ennis Nominees to pay the applicant the amount of $39,340.25 within 14 days. Ennis Nominees did not comply with the order and ultimately the applicant sought to enforce it in the Magistrates Court.
17. The applicant's evidence was that Ennis Nominees did not have assets available to satisfy the order and he was advised by the bailiff to contact the Magistrates Court and seek an order in the name of the respondent personally in order to satisfy it (ts 33-34, 17 September 2018). According to the applicant the Magistrates Court staff directed him to the Building Commission to make the same request. The applicant did so and at his request the Building Commission issued an amended building remedy order as against the respondent personally.
18. The applicant's evidence at the hearing as to why this was necessary was not on the basis that he believed that the respondent carried out the regulated building service but was more so motivated by his desire to ensure that he received the $39,340.25 (ts 34, 17 September 2018). That is, he simply wanted to be able to enforce the order and receive the benefit of it.
19. As mentioned previously the amended order was revoked by this Tribunal pursuant to a review application initiated by the respondent (being proceeding CC26270/2017).

1. The applicant appeared to submit to the Tribunal that the respondent was the person who carried out the regulated building service for the following reasons:
   1. He contracted orally directly with the respondent and not with Ennis Nominees. That contract was wholly in oral terms and not evidenced in writing.
   2. The respondent personally held the Restricted Asbestos Licence required to perform the work (page 68 of the Hearing Book).
   3. The respondent was the 'main person' who attended at his property and performed the work. He was assisted by his 'partner' Mr Rea and two roof sub­contractors.
   4. The respondent lodged a claim in his personal name at the Magistrates Court to recover the money he alleged was owing for the performance of the regulated building service. The applicant paid the money to the respondent.
   5. Although at times the applicant has referred to MPAS, including in a cheque made payable to MPAS (document 8 of the respondent's bundle of documents) and in the complaint lodged with the Building Commission in August 2014, he did so due to the pressure of the situation and not because he believed that it was the entity who had carried out the regulated building service (ts 30, 17 September 2018).
   6. The applicant never corrected the Building Commission in its adoption of Ennis Nominees as respondent because they were the ones 'running the show' (ts 32, 17 September 2018).

1. The respondent's position is that he did not carry out the regulated building service in his personal capacity. He submits that the appropriate entity is Ennis Nominees as trustee of the Trust carrying on the activities under the unregistered business name of 'MPAS'. The respondent directed the Tribunal's attention to the following supporting documentation:
   1. The original quotation in respect of the regulated building service which was provided to the applicant in or about March 2014 was in the name of MPAS and referenced the ABN number of the Trust, the trustee of which was Ennis Nominees.
   2. The quotation was varied by the parties orally but there was no new contract entered into by the applicant with the respondent in his personal capacity.
   3. When the applicant lodged his building service complaint with the Building Commission he made reference to MPAS and provided the ABN number of the Trust.
   4. All roofing materials used in the performance of the regulated building service were paid for by Ennis Nominees in its capacity as trustee of the Trust.
   5. The invoice issued to the applicant in June 2014 was rendered in the name of MPAS bearing the ABN number of the Trust and requesting payment be made to Ennis Nominees.
   6. A cheque made payable to the respondent by the applicant dated 7 July 2014 was made payable to MPAS.
   7. The invoice issued by the respondent to the applicant in December 2014 requesting that the applicant make payment of an agreed amount of $33,000 following settlement of Magistrates Court proceedings sought payment to Ennis Nominees.
   8. The deposit slip dated 17 December 2017 evidencing payment of the sum of $33,000 from the applicant was paid into the bank account operated by Ennis Nominees (document 14 of the respondent's bundle of documents).
   9. The evidence of the respondent's accountant, supported by management reporting of the Trust, supports the position that all services undertaken by the respondent other than the jewellery business were undertaken through the vehicle of the Trust operated by the trustee, Ennis Nominees, under the cover of the business name MPAS.

1. It appears to the Tribunal that the applicant did not entirely appreciate the difference between contracting with the respondent in his personal capacity or through the corporate vehicle. This was evident during the hearing when the applicant effectively informed the Tribunal that it was immaterial whether it was the respondent or Ennis Nominees given that the respondent was the sole director and secretary of the corporate vehicle (ts 33, 17 September 2018). The applicant simply wanted Building Remedy Order No. 236 of 2017 to be capable of enforcement (ts 34, 17 September 2018). That is, if Ennis Nominees had the funds sufficient to satisfy the order he would never have lodged a building service complaint against the respondent. The whole exercise has therefore been in search of funds rather than an authentic challenge as to who carried out the regulated building service for the purposes of the BSCRA Act.
2. In essence the main submission that the applicant put forward was that the respondent carried out the majority of the works in that he was attending on site most days and performed large amounts of the work. However, as Shami makes very clear, the mechanics of the work itself does not necessarily answer the question as to who carried out the regulated building service or the overarching building project.
3. On the evidence presented to the Tribunal it is difficult to accept that the respondent himself carried out the regulated building service. It is also difficult to accept on the evidence presented to the Tribunal that the applicant believed that he had contracted solely with the respondent. Indeed it appeared clear that the applicant knew that he was dealing with an entity known as 'MPAS' at all times. He clearly was not aware of the interrelationship between that entity and the Trust and Ennis Nominees. However, he also never made any enquiries to ascertain the structure of how the business operated in this regard (ts 15, 17 September 2018). It is clear to the Tribunal however that he understood that it was a business and not the respondent in his personal capacity. That was evident from the following:
   1. All documentation originating from the respondent by way of quotation and invoicing was in the name of MPAS and expressly referenced the ABN of the Trust. The invoicing itself required payment to be made to Ennis Nominees.
   2. It was understood by the applicant that the entity carrying out the work was MPAS because he sought to pay MPAS for the services rendered (document 11 in the respondent's bundle of documents) and when he lodged his building service complaint with the Building Commission he identified MPAS and provided the ABN of the Trust.
   3. At all times during the course of the proceeding at the Building Commission, which extended for a period of two years, Ennis Nominees was identified as the respondent and two building remedy orders were made against it. The applicant admitted at the hearing that at no time did he dispute Ennis Nominees as the correct named respondent until he had difficulty in enforcement proceedings against it.
   4. Although the respondent initiated Magistrates Court proceedings seeking payment from the applicant in respect to the works performed in his personal name, when the matter was settled between the parties the applicant was invoiced by Ennis Nominees in respect of the amount (document 14 of the respondent's bundle of documents).
   5. The proceeds derived from the regulated building service were deposited into the bank account of Ennis Nominees. The evidence of the respondent and the accountant of Ennis Nominees was consistent that all funds associated with the business operated under the name of MPAS was similarly deposited into the bank account operated by Ennis Nominees and appropriately reported to the Australian Taxation Office as profit generated by the Trust.
   6. All materials and products required to perform the regulated building service were purchased by Ennis Nominees.
   7. The applicant admitted in his evidence that he was aware that he dealing with a business. He may have held a misapprehension as to who was conducting the business, whether it was the respondent as the sole director or whether it was the respondent in partnership with others, but the applicant was nevertheless aware that he was dealing with MPAS in respect to who was carrying out the regulated building service (ts 15, 17 September 2018).
4. It ought to be noted that the business name MPAS is not registered with ASIC however it is a business name that on the evidence is clearly used by Ennis Nominees in its capacity as the trustee of the Trust. The representative for the respondent submitted to the Tribunal that the 'imperfection' surrounding the fact that the business name is not registered ought not lead to the conclusion that Ennis Nominees is not the entity that carried out the regulated building service. The Tribunal accepts that submission.
5. The lack of registration of the business name itself, although is clearly a breach of s 5 of the Business Names Act 1962 (WA), does not negate a finding that would otherwise be made by the Tribunal as to which entity carried out the regulated building service. It is of course a matter which ought to be remedied but for the purposes of the present determination it is not a relevant fact.
6. In summary the Tribunal finds on the basis of all of the evidence before it that the entity that carried out the regulated building service the subject of the current building service complaint is Ennis Nominees in its sole capacity. The involvement of the respondent was purely as the sole director of Ennis Nominees. The Tribunal does not accept that the respondent contracted in his personal capacity with the applicant to perform the regulated building service. The written quotation and invoicing and the depositing of the funds received in respect of the performance of the work all support the position that Ennis Nominees carried out the regulated building service.
7. Despite a letter of demand being made at the request of the respondent and Magistrate Court proceedings being issued in the name of the respondent, the Tribunal does not find that those subsequent actions are sufficient to lead to a different interpretation of the contractual relationship between the applicant and Ennis Nominees and a factual finding as to who carried out the regulated building service at the relevant time. The facts as set out at [25]­[42] above support a finding that the entity who carried out the regulated building service was Ennis Nominees.
8. The Tribunal also finds that the evidence of the applicant himself is consistent with this finding. It appears that the motivation for the applicant in lodging the recent complaint and pursuing this preliminary issue was solely his desire to enforce Building Remedy Order No. 236 of 2017 against whichever entity had the funds to satisfy it. As unfortunate as this situation is for the applicant, that is not a basis on which the Tribunal could find that the respondent carried out the regulated building service.
9. Therefore the complaint is dismissed as misconceived and/or lacking in substance pursuant to s 47 of the SAT Act.
10. The Tribunal notes that proceeding CC 490 of 2018 has been stayed pending the determination of this question and anticipates that the applicant in that proceeding, Ennis Nominees, will seek to withdraw that application on the basis of this finding.
11. The Tribunal therefore makes the following order:

1. The application is hereby dismissed as misconceived and/or lacking in substance pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA).

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.