State Administrative Tribunal (WA)|2007-09-13

The applicant is granted leave to rely on the further ground of review filed on 17 May 2007.
The applicant is granted leave to have the decision of the Building Disputes Tribunal made on 1 August 2006 reviewed.
The application for review is upheld and the decision under review is set aside.
The review hearing will be adjourned to a later date for the determination of the appropriate remedy to be granted in substitution for the order made by the Building Disputes Tribunal.
The application is otherwise adjourned to a directions hearing on 25 October 2007 in order to address any application for costs and to program the matter to final hearing for an order to be made in substitution of that made by the Building Disputes Tribunal.

I certify that this and the preceding [91] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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Registration Act 1939

PERTH CENTRAL HOLDINGS PTY LTD and DORIC CONSTRUCTIONS PTY LTD [2007] WASAT 239 (13 September 2007)

20 The principles for the grant of leave are set out in Tangent Nominees Pty Ltd and Edwards & Anor [2005] WASAT 119. While the Tribunal has a broad discretion to grant or withhold leave, generally leave will not be granted unless it is shown:

23 In this matter, there is very little direct conflict on the evidence. The facts established by that evidence are not disputed. In such circumstances, an appellate court, or review Tribunal, is in as good a position as the original adjudicator to decide on the proper inferences to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the original adjudicator: see the principles discussed in Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 551 and State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 160 ALR 588.

50 We accept Mr Hotchkin's submissions for the owner that a proper interpretation involves applying the meaning which the clause would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation they were in at the time of the contract: Maggbury Pty Ltd v Hafele Australia Pty Ltd [2001] HCA 70; (2001) 210 CLR 181. Further, that the Tribunal must consider "what would reasonable business people in the position of the parties have taken the clause to mean": Schenker and Co (Aust) Pty Ltd v Maplas Equipment and Services Pty Ltd [1990] VicRp 74; [1990] VR 834. In dealing with the substrate preparation, the specifications deal separately with the substrate being required to be thoroughly dry and the need for the surface to be clean. The different terminology used within the same clause suggests a different meaning be given to the words "substrate" and "surface". It is clear that if the requirement was simply that the surface be dry, that no protection against future failure would be provided because of moisture present in the material as a whole. We note that the manufacturer's instructions refer only to the surface being dry. It may be that this can be explained simply by poor drafting, given that an acceptable substrate identified therein is stated to include concrete, rendering and screeds, and the expert evidence demonstrates quite clearly that one could not measure the surface of such a substrate without detecting moisture within it. In any event, the specification is more detailed than the manufacturer's instructions and, as stated, deals with the substrate differently to the surface.

PERTH CENTRAL HOLDINGS PTY LTD and DORIC CONSTRUCTIONS PTY LTD [2007] WASAT 239 (13 September 2007)

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PERTH CENTRAL HOLDINGS PTY LTD and DORIC CONSTRUCTIONS PTY LTD [2007] WASAT 239 (13 September 2007)