The applicant's representative had been lead to understand that he could continue his attempts to advance an argument based on the interpretation of the contract after the luncheon adjournment, but when the Tribunal reconvened the chairperson launched immediately into the giving of reasons for the decision in the matter.

5. It was submitted that the Disputes Tribunal's interpretation of the relevant clauses of the contract had been incorrect and without any basis. That the effect of cl 9(b)(viii) was that the applicant was entitled to claim an extension of time caused by the proceedings before the Disputes Tribunal.

6. It was submitted that the reasons for the decision did not address the issue of whether preliminary notices, had been given, that these were primary jurisdictional questions that had to be answered before the Tribunal could proceed.

7. In relation to whether leave should be granted, it was submitted that the decision sought to be reviewed was attended with sufficient doubt to justify the grant of leave by reason of the above matters. Further that a substantial injustice had been suffered by reason of the following circumstances:

(a) neither the November or February hearings addressed the fundamental jurisdictional issues concerning the need for preliminary notices to be given;

(b) the November order was in terms of BRA but was purportedly made under HBCA;

(c) the February order referred to rent and interest and "had no end date and no quantum on the interest";

(d) the applicant's argument regarding the completion date had been ignored as result of which the respondents were able to avoid practical completion indefinitely; and

(e) the hearing in February 2005 was a cause of substantial injustice because of the natural justice considerations summarised above.

8. In relation to the grant of a stay order it was submitted that a stay should be granted for the following reasons:

(a) there was no incentive for the applicants to accept practical completion;

(b) practical completion had already occurred and was the subject of adjudication by the Disputes Tribunal;

(c) that relief had been granted to the respondents because they complained of financial hardship but continued payments to them would place them into deeper debt and cause more financial hardship when the matter was finally resolved; and

(d) there was nothing to prevent the respondents from moving into the house which would mean that the payments for rent and interest could be avoided.

30 The respondents' submissions may be summarised as follows.

1. The basis upon which interest and rent had been claimed was confirmed. This was explained in the transcript. In short the loan is an interest only loan until fully drawn. Once fully drawn the loan is for a term of 20 years from that date. Accordingly, before practical completion is achieved, every month delaying completion of the works results in an extra payment, which would not otherwise be payable.

2. In so far as the rent is concerned and the criticism that there was no evidence to support the payments my attention was drawn to the Disputes Tribunal's papers for the February hearing. At pages 24 - 25 appear what were described as copies of the respondents' bank deposits showing the weekly rent paid.

The respondents also addressed the contractual term providing for an extension of time for delay as relied upon by the applicant.

3. The respondents contended that the effect of cl 9(c) read with cl 12(c) was that the applicant, if claiming an extension of time, was obliged to provide a statement within 10 working days after the applicant became aware or should recently have become aware of the circumstances giving rise to the claim for an extension.

4. The respondents pointed to the annexure to Mr Morolla's affidavit (DM8) being a letter dated 17 February 2005 addressed by the applicant to the respondents. They submitted the letter purported to be a notice of statement pursuant to s 12(c) of the contract. They submitted that any notice should have been given at the latest within 10 days of the order to remedy made on 24 November 2004.

5. In addition the respondents made submissions addressing the hardship they stated they were suffering as a result of difficulties in recovering payment from the applicant in terms of the order made by the Disputes Tribunal.

31 Both parties filed affidavits.

32 The affidavit of Mr Morolla filed in support of the application has annexed to it all of the documents referred to in this decision. Reference will be made to the contents of the affidavit where it is relevant to do so.

33 I have had regard to and given consideration to the contents of both the affidavit and the annexure, filed by the respondents, save for the allegations made in the respondents' affidavit concerning what is said to have occurred after the adjournment of an initial hearing in the Tribunal on 1 April 2005 and the annexure relating to a complaint made to the Legal Practitioners' Complaints Committee. I did not regard any of this as relevant.

34 I was also provided with and had regard to the full transcript of the November and February hearing.

35 Section 41 of the BRA provides that a party to proceedings before the Disputes Tribunal may apply to SAT for a review of a decision of the Disputes Tribunal. By s 41(2) the review cannot be made unless SAT gives leave.

36 The effect of s 27 of the State Administrative Tribunal Act 2004 (WA) is that once leave is granted the basis upon which the original decision-maker arrived at its decision becomes irrelevant. The review before SAT is by way of a hearing de novo. The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review. The purpose of requiring leave to apply for a review must be taken to minimise the number of applications for review from decisions of the Tribunal. There are a number of decisions to that effect dealing with applications for leave to appeal from the Disputes Tribunal to the District Court, to which an appeal lay subject to leave, prior to the coming in to effect of the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA) on 1 January 2005_;_ see Watson & Anor v Wallington & Anor [1999] WADC 84 Donabray Pty Ltd v Wardman & Anor [2000] WADC 27. The criteria by which leave to appeal was to be considered in an application to the District Court are outlined in the above decisions, and in a number of earlier decisions referred to therein.

37 In Wilson v Metaxas [1989] WAR 285 at 294 it was held that the jurisdiction to hear the appeal was founded upon the grant of leave. The grant of leave lies in the discretion of the court. In general, however, it must be shown that the decision in respect of which leave is sought is wrong, or at least attended with sufficient doubt to justify the grant of leave and, in addition, that substantial injustice would be done by leaving the decision unreversed. The requirement that substantial injustice be shown is no more than a guideline for the exercise of what must necessarily be and remain a broad discretion to grant or withhold leave. What is a substantial injustice must depend on all the circumstances of the case.

38 In Wing Luck Foods v Lay Choo Lim [1989] WAR 358 at 316 the Full Court stated as follows:

"It will not normally be sufficient that the decision that the decision appealed from is apparently wrong or attended with doubt. Something more will need to be shown. It may well be that in some cases it will be sufficient to show that there is a significant question of law to be considered. In others it may be possible to point to some other feature which requires the consideration of this Court to avoid a substantial injustice if leave is not granted."

39 In Wing Luck Foods (supra), the court was dealing with an application for leave to appeal from an interlocutory decision. In that context Malcolm CJ expressed the view that leave will be granted more readily if the practical effect of the order is to change substantive rights or finally determine the right of the parties. In Watson (supra), LA Jackson DCJ cited Wing Luck Foods (supra), with approval save in relation to the reference to leave being granted more readily in the above circumstances. His Honour pointed out that the very nature of the decisions of the Disputes Tribunal (then known as the Disputes Committee) will be to change substantive rights or finally determine the rights of the parties so that to apply that criterion would substantially negate the need to obtain leave.

40 In my view, the above principles, with the qualification expressed in Watson (supra), are all the more relevant having regard to the change in the nature of the review process from an appeal by way of rehearing before the District Court to a review by way of a hearing de novo before the Tribunal.

41 The overall purpose of leave must remain the same namely to minimise the number of applications for review. The above criteria remain a useful measure by which to screen matters to ensure that appropriate cases are reviewed without opening the doors to what would amount to almost an unrestricted right of review. It has been recognised that it would frustrate the intent and purpose of the legislation on which the Disputes Tribunal jurisdiction is founded to strictly adhere to ordinary principles of appeals, in cases of appeal from the Tribunal. This is because that legislation intends that the Disputes Tribunal should provide a relatively speedy and inexpensive remedy in building disputes. On this reasoning it has been held, under the former appeal regime, that the District Court should be slow to grant leave to appeal or to allow appeals except in cases where clearly there is no discernable basis for the decision of the Tribunal or, for example, where fundamental rules of natural justice have been breached by preventing a party adequately being heard: see Well Holdings Pty Ltd v Agostino [2001] WADC 174.

42 On ordinary appeal principles there is much which could be said in criticism of the reasons for decisions. To a large extent they constitute no more than a statement of the conclusions reached, without supporting reasoning, and in part even the conclusions or findings upon which the orders were based are not stated. The failure to give adequate reasons amounts to an error of law.

43 In assessing whether there is a discernable basis for a decision having regard to the form of review undertaken by SAT, it is appropriate to have regard to all available material, if the reasons for decision are inadequate for that purpose. A judgment needs to be made as to whether the decision is attended with sufficient doubt based on this overall view in such circumstances. In such cases it may be desirable for the application for leave and the review to be heard together. That was not appropriate in this case because of the stay application and the need for it to be determined urgently due to the respondent's financial circumstances.

44 If adequate reasons for decision have been given this wider enquiry should be unnecessary particularly in those matters where a narrow point may be in issue.

45 The learned author of Civil Procedure Western Australia, Supreme Court, Seaman, at [63.15.1] suggests that the principles that govern applications to the Full Court for a stay of a judgment or an order pending an application for special leave to appeal to the High Court are equally applicable to applications to the Full Court for a stay pending the hearing of an appeal to that court.

46 Those principles should also apply to an application for a stay of a reviewable decision under s 25 of the SAT Act subject to the requirements of s 25(4) which prescribe that the Tribunal may make an order staying the operation of a decision that is the subject of a proceeding for a review only if it considers that it is desirable to do so after taking into account -

(a) the interest of any person whose interest may be affected by the orders;

(b) any submission made by or on behalf of the decision-maker; and

47 In this particular matter the dispute is between the parties to the proceedings and is personal to them. There is therefore no particular public interest factor to be taken into account. Further, the decision-maker, not surprisingly, has not made any submission. In the circumstances it is the interests of the parties which will govern the grant of an order staying the decision in question, subject to the general principles referred to by Seaman.

48 The relevant principles and authorities governing applications for a stay by a party seeking special leave to appeal to the High Court are set out in Hamersley Iron Pty Ltd v Lovell (2) (1990) 20 WAR 79 and are summarised by Pullen J in Ridout Nominees Pty Ltd v Commonwealth Bank of Australia [2003] WASCA 182. At [7], his Honour stated as follows:

"That case makes it clear that a stay is not granted simply for the asking; that it is not normal to grant a stay; and the jurisdiction to grant a stay is an extra-ordinary jurisdiction only to be exercised in exceptional circumstances. At 89 of that decision, one of the circumstances which would enliven the discretionary jurisdiction, and which would be exceptional, is if there is a real risk that it will not be possible for the appellants to be restored substantially to their former position if the judgment against them is executed.

...

Having said that, it is clear also that it is necessary to go on to consider the appellant's prospects of success on the application for special leave and where the balance of convenience lies."

Whether the proceedings were under the BRA or the HBCA.

49 Subject to the discussion below in relation to the preliminary notice issue, it is open for a complaint to the Disputes Tribunal to be based on either or both the above Acts. By virtue of s 17(1)(a)(i) of the HBCA a breach of contract, which is capable of being dealt with as a workmanship issue under s 12A of the BRA, must be dealt with under the BRA and not as a breach of contract claim under the HBCA.

50 The complaint form lodged by the respondents identifies that both workmanship complaints and a breach of contract claim were being referred to the Disputes Tribunal under s 10 and s 11. The workmanship complaints were capable of being advanced in a common law court as breach of contract claims. Before the Disputes Tribunal they could be dealt with only as a complaint under s 12A of the BRA. On the other hand, the contractual claim for delay could only be dealt with under the HBCA because under s 12A of the BRA the Disputes Tribunal can be concerned only with whether or not any building work is faulty or unsatisfactory or has not been carried out in a proper and workmanlike manner (other that it being faulty or unsatisfactory: s 12A(1a)).

51 At the commencement of the hearing on 24 November 2004 the respondents were asked to explain precisely what relief was being sought. Mr Edwards identified the workmanship items. Mrs Edwards then added a reference to the delay in completion claim and her understanding that the delay claim would have to be determined later after the Works were completed.

52 It is apparent therefore that the applicant has entirely misconstrued the nature of the proceedings. The submissions that once an order to remedy had been made, no other remedy was available, or could properly be made, are patently wrong. It was at all times contemplated that the application would be dealt with in two parts. The workmanship issues had first to be addressed and once the house had been completed it was intended that the delay claim would be determined. The separate issues under the one complaint form were to be dealt with under the BRA and HBCA respectively. The discussion which occurred after the Disputes Tribunal had given its reasons at the end of the November hearing when Mrs Edwards requested that some relief be granted to alleviate the financial pressure placed upon the respondents herein must be seen in this context. The statement that the Tribunal had no jurisdiction to deal with that issue was correct because the matter then dealt with had been determined under s 12A of BRA. The delay claim, based on the rental and interest being paid by the respondents, had to be dealt with separately, as recognised at the outset of the hearing.

53 It is unfortunate that the order to remedy which was issued some days later on 1 December 2004 incorrectly referred to the orders having been made in terms of s 17 4(a)(ii) of the HBCA. As the applicant's counsel correctly submitted, this was obviously an error. In my view this ground of appeal has no prospects of success.

Insufficient notice of purpose of reconvened hearing

54 The letter from the respondents to the applicant 31 January 2005 requested payment of rent, interest and other costs. It concluded by stating that the respondents intended "to have this matter added to the complaint concerning the kitchen cupboards". As set out above the applicant had taken the view by 21 January 2005 that the remedial work in respect of the cupboards had been properly carried out but that view was not shared by the respondents.

55 The applicant's solicitors understood that it was intended that the reconvened hearing would deal with the claim for compensation. This was recognised in their letter of 22 February 2005 addressed to the Tribunal ("BM9"), in which they foreshadowed that they would seek leave to appear on behalf of the applicant.

56 The submissions made by facsimile letter dated 25 February 2005 prepared by the applicant's solicitors specifically addressed whether or not it was open to the respondents to claim compensation. It was precisely because that claim was before the Tribunal that leave was sought to appear, that is, because it raised legal issues on which the applicant wished its solicitors to be heard.

57 In those circumstances the evidence of Mr Morolla at page 68 of his affidavit that the orders made on 25 February 2005 (to pay compensation) did not make sense and "do not concur with my understanding with the purpose of the hearing on the day" is difficult to understand. Mr Morolla obviously understood that the ability of the Disputes Tribunal to issue a compensation order would be debated. At the very least, it must have been contemplated by the applicant that if those submissions were not accepted, the Disputes Tribunal would proceed to deal with the compensation claim.

58 I consider that the applicant had sufficient notice of the purpose of the hearing and that this ground has no prospects of success.

59 It was open to the Disputes Tribunal to refuse leave for the applicant's solicitors to appear on its behalf. The respondents opposed the application for leave and in any event the applicant's submissions had been received by the Disputes Tribunal in writing on 25 February 2005.

60 For the reasons given above, the submissions were misconceived in relation to whether or not there was power or jurisdiction to award compensation (subject to the preliminary notice issue which was not then raised).

61 The proceedings had commenced with both parties being unrepresented. The basic point in relation to the legal issue had been made. The remaining issues in relation to the claim for rent and interest and even the interpretation of the contract were capable of being dealt with by laypersons given the nature of proceedings before the Disputes Tribunal.

62 It may well be that the proceedings were confused to some degree because the Tribunal was differently constituted during the February hearing with only one member having sat in both hearings and because a transcript of the earlier November proceedings was not available until after the cases, respective of the parties had closed. A reading of the transcript shows that the applicant raised the issues which were available to it.

63 In so far as it is suggested that matters were raised with Mr Morolla in relation to which he had not received prior notice, for the reasons given above in relation to the notice of the purpose of the hearing, the argument is flawed. If the applicant did not prepare on the basis that it would be able to have evidence available to support any claim for an extension of time of the contractual completion date that was its own fault, or the fault of its solicitors.

64 In this regard the statement by LA Jackson DCJ in Watson (supra), at page 8, is apt;

"It is I think important in dealing with a Tribunal such as the Committee [now Tribunal] to recognise that its very informality can result in what would in a court of law be described as irregularities properly corrected on appeal. To take the same rigid approach with respect to the Committee's hearings would I think be to frustrate the legislation. ... A nit-picking analysis of the proceedings before the Board (sic) could well result in some criticism of its procedures. But are they sufficient to say the committee has failed to give the applicant's a fair hearing, or failed to allow them to adduce material which has prejudiced their position."

65 I am unable to accept that the applicant did not know the case it had to meet. Even allowing that there was a degree of confusion in the way in which the matter was heard, I do not think that there is any sufficient basis on which to contend that the hearing was not fair.

66 I do not consider that this ground has a reasonable prospect of success.

67 The order to pay no 130/2004-05 was in the following terms**:**

"(1) that Tangent Nominees Pty Ltd to pay to Geoffrey Peter and Elizabeth Marie Edwards the sum of $7614.95 on or before March 2005.

(2) the builder to continue to be liable to the owners for rent of $250 per week and monthly interest commencing March 2005 on their home loan until such time as practical completion is achieved."

68 It is order (2) above which is challenged under this ground.

69 It is submitted in relation to the award of rent at a rate of $250 per week, that there was no proper investigation to ascertain facts to support the amount awarded.

70 It is true that no lease agreement was produced. As pointed out above, the deposit forms stated to reflect the weekly rental payment were before the Disputes Tribunal. Having regard to the informal nature of its proceedings, including that the rules of evidence do not apply, the Disputes Tribunal was entitled to arrive at the conclusion which it did that the rental claim was established. Certainly, in my view, it cannot be contended that this decision is attended with sufficient doubt, if any.

71 In relation to interest the transcript shows that the chairperson was at first attracted to the view that interest could not be recovered, just as I was, during the course of the hearing of the application. However, Mr Edwards explained before me as he did before the Disputes Tribunal (pages 24 and following of the transcript) that there was no double compensation arising. He stated that the loan was an interest only loan until the final payment was made to the builder. At that point the 20 year repayment term commenced. It is therefore obvious that for every month that the contract is delayed the respondents will have paid an interest payment which they would otherwise not have done.

72 In the circumstances I do not consider that there is any merit in this proposed ground for review.

73 An issue arose during oral submissions, concerning the vagueness of the form of order in relation to interest because the amount was not stated and yet it had varied from month to month.

74 The fact that the interest had varied was explained by Mr Edwards. Contrary to the applicant's submissions he stated that a substantial payment had been made and the interest rate had increased on the anniversary date, both of which factors had caused the interest payable to change.

75 The applicant's counsel also criticised the form of the order because it was expressed to operate until the date of practical completion and there was now a dispute between the parties as to whether that event had occurred. I am satisfied based on the inspector's report which was handed up to me that practical completion has not yet been achieved. But it is unfortunate that the order was expressed in such terms. It would have been preferable if the Disputes Tribunal had expressed the order to be an interim order to operate for a fixed period of months unless the parties agreed practical completion was achieved prior thereto and with liberty to apply in the event of ongoing delay.

76 Of more concern is that an order should have issued on such terms that the applicant cannot determine its obligation from the terms of the order itself. The intent is clear and that is that the applicant should pay all the interest. That can be ascertained by reference to the respondent and it would be reasonable to require proof of the amount asserted to be payable. In my view the expression of the order in the above form does not affect its validity. I was referred to no authority to suggest otherwise.

77 The submissions raised the correct interpretation of the contract between the parties, in particular, in relation to a claim for an extension of time.

78 Clause 9(b) of the contract provides that the builder shall complete the Works within the time specified in the schedule but that the time for completion may be extended in accordance with cl 9(c) in the event of delay caused by or resulting directly or indirectly from a number of stated causes, including relevantly, under cl 9(b)(viii):

"any delay in the commencement of or continuance with works caused by or resulting from any order or directive of a relevant authority or proceeding before the Buildings Registration Board or the Buildings Disputes Tribunal, the Registrar, a mediator, arbitrator or a court."

79 The applicant contends that the contract was delayed because of the proceeding before the Disputes Tribunal and by its letter dated 17 February 2005 ("DM8") it gave notice extending the contract by 102 working days. That letter reads as follows:

"We write to inform you on the progress of your new Home.

The original cabinet works to your home were installed on the 9th September 2004. The dispute was brought to the Building Registration Board upon request from you. The Builder resolved the matter on the 21st December 2004 as ordered by the Building Disputes Tribunal. Upon completion of the cabinets you again brought the matter to the Builders Registration Board and the matter was confirmed to be resolved by written confirmation from the Builder (sic) Registration Board. This confirmation was dated the 4th February 2005.

We refer to the Building Contract items 9b (viii) and 9C (sic (c)), and hereby advise that 102 working days will be added to the contract in accordance to item 12 b and c. Thus being the time difference between the initial installation and confirmation of the matter being resolved."

80 The reference to the confirmation from the Builders Registration Board dated 4 February 2005 is a reference to a further inspection report of that date. That report reflected that the kitchen cabinets conformed with the contract drawings.

81 However, as the Disputes Tribunal recognised in the February hearing, the order to remedy, required that the builder carry out the remedial work so as to conform with the method of construction and standard of finish in the Archipelago Display Home. The inspector could not observe whether that was the case as he did not visit the display home and had as a point of reference only the contract drawings. It was only at the hearing on 25 February 2005 that the respondents indicated that notwithstanding that in their view the kitchen cupboards did not conform, they could not suffer a further delay while remedial work was carried out and would therefore accept the work as it was.

82 Clause 12(b) and cl 12(c) of the contract provide as follows:

"(b) The Builder shall be entitled to vary all or any of the Works and/or Contract Documents made necessary by:

(i) any written direction lawfully given by a building surveyor or other person acting under a written law: or

(ii) circumstances that could not reasonable have been foreseen by the Builder at the time when this Contract was entered into if the Builder gives to the Owner, within the time specified in Clause 12(c), a statement setting out the reason for, and the cost to be incurred on account of, the variation and a copy of any direction referred to in Clause 12(b)(i) PROVIDED THAT Clause 12(b)(ii) shall not enable the Builder to make any variation by reason only of an increase in the costs of labour (including related overhead expenses) or materials or both, to be incurred by the Builder.

PROVIDED ALSO THAT where an Owner is given a statement by the Builder for the purpose of Clause 12(b)(ii) and the Owner considers the variation is not one to which Clause 12(b)(ii) applies then the Owner may make an application to the Building Disputes Tribunal for relief under Section 17 of the Home Building Contract 1991 within TEN (10) Working days of being given the statement.

(c) The Builder shall give the statement referred to in Clause 12(b) to the Owner within TEN (10) Working days after the Builder:

(i) received notice of the direction under Clause 12(b)(i); or

(ii) became aware or should reasonably have become aware, of the circumstances referred to in Clause 12(b)(ii) as the case may be."

83 In its reasons for decision the Disputes Tribunal considered that cl 9(b)(viii) applied only in relation to a situation where the work was ordered to be stopped by an authority or the Disputes Tribunal.

84 The respondents go further and say that, even if that is incorrect, the applicant's notice of 17 February 2005 was not within 10 working days after the builder became aware or should reasonably have become aware, of the circumstances referred in cl 12(b)(ii).

85 Pursuant to cl 9(b) the time for completion of work may be extended in accordance with cl 9(c). Consequently the builder must give the statement referred to in cl 12(b) to the owner within 10 days after, in this instance, the builder (that is: the applicant) became aware or should reasonably have become aware of the circumstances referred to in cl 12(b)(ii).

86 There is much in my view which supports the construction of the contract in a way such that cl 9(b)(viii) must be taken to refer to circumstances only where an order is made which delays the completion of the Works. But, it must be recognised that this is an arguable point. In the circumstances I will examine this aspect no further.

87 In relation to the time within which the notice must be given pursuant to cl 12(c), however, I am unable to see any merit in the applicant's submissions and the position it adopted. If the applicant's interpretation of cl 9(b)(viii) is accepted for present purposes, the delay caused by referring the matter to the Tribunal ended as soon as the Tribunal made an order determining the issue; that is, on 24 November 2004. Accordingly, any notice seeking to extend the contract pursuant to cl 12(c) had to be made within 10 days thereafter, and it was not. The proviso to cl 12(b) does not save the applicant because the respondents have never argued that "the variation is not one to which cl 12(b)(ii) applies". That was effectively what the Disputes Tribunal determined of its own volition. The respondents' position was that the notice had been given late.

88 Although the Disputes Tribunal made some inquiry as to whether there may have been any other delay to the completion of the work, it does not appear that it was strictly necessary for it to do so. Mr Morolla did not raise that notice had been given pursuant to the above provisions in relation to any other claim for an extension and he did not suggest that there was any current delay operating for which an extension could be sought.

89 It follows that I do not consider that the applicant has any reasonable prospect of a successful review on this ground.

90 As already pointed out, s 12A of the BRA and s 17 of the HBCA require that a preliminary notice must be given in the prescribed form and that an application can not be made to the Disputes Tribunal before such preliminary notice has been given.

91 It is a matter of construction to determine the intention of the legislature in accordance with the principles outlined in Project Blue Sky v Australia Broadcasting Authority [1998] HCA 28; (1998) 153 ALR 490, and whether the failure to give notice will have the effect that the Disputes Tribunal acted without jurisdiction. As I consider that this question raises an arguable issue in relation to which there is a reasonable prospect of success it is appropriate that I should say no more in relation to this proposed ground of review.

92 For the reasons given above I do not consider that the Disputes Tribunal's decision is attended with sufficient doubt to justify leave to appeal on any of the grounds raised, except relating to the alleged failure to give a preliminary notice.

93 I am conscious that this is a point that was raised for the first time only during the hearing of this application. The respondents had no advance notice as it was not a ground referred to in the application for leave itself. Mr Edwards expressed the view that he had written to the applicant prior to the issue of the complaint but he was unable to identify the document at the time. I note that in the complaint form the only response to the question raised in s 9 of the complaint form requiring details of any attempt to resolve the dispute was "Talk with the Manager" of the applicant. No reference was made to any correspondence.

94 The reasons for decision do not refer to any preliminary notice and there was no finding of what may well be held to be a jurisdictional fact. That may not have of itself amounted to an error but in the absence of any such finding and on the material before me, I am satisfied that the decision is attended with sufficient doubt that if it is held to be incorrect and is not reversed, a substantial injustice might result. That is not a conclusion which I arrived at easily. If the applicant does succeed on this ground it would be a highly technical victory, very easily overcome, by the issuing of a preliminary notice and the commencement of fresh proceedings before the Disputes Tribunal and on the merits raised the same result appears likely.

95 By virtue of s 9 of the State Administrative Tribunal Act 2004 the Tribunal is charged to determine matters according to the substantial merits of the case with as little formality and technicality as practicable. I considered whether in the circumstances, and given the constraints established by the authorities to which I have referred, it would be appropriate notwithstanding that I thought that the point was arguable, that I should refuse leave to appeal. I inclined to this conclusion initially because it seemed futile to have to determine the issue if it could be so easily overcome, so that in that sense it could not be said that any substantial injustice would result.

96 After careful consideration I came to the conclusion that as the point concerned jurisdiction, it could not be ignored. That in this context the substantial merit is whether or not the Tribunal acted within jurisdiction. I concluded that it was not appropriate to ignore a challenge to jurisdiction, which if correct, has the effect of forcing compliance with an order that should not have been made.

97 It was submitted that it was because of the respondents worsening financial position that they had succeeded in persuading the Disputes Tribunal to make an order in respect to the delay claim. Further, that consequently there was a real likelihood that if the decision was reversed the applicant would not be able to be restored substantially to its former position; and that the respondents position would worsen once they had to pay the balance of the contract sum.

98 The evidence shows that throughout the period of construction of the Works the respondents have paid interest and rent. Once practical completion is achieved they will have to pay an amount slightly in excess of the interest component of the loan but they will not have any rent to pay. That alone represents a substantial improvement in their financial position, and if need be, in the absence of any evidence suggesting otherwise, one would expect that it would provide a source of funds for repayment of any amount due to the applicant.

99 It has therefore not been shown that the applicant is at a real risk of not being able to be restored substantially to its former position if the decision if reversed.

100 But, in any event, even if the decision is reversed it would be open to the respondents, as explained above, to commence fresh proceedings in the Disputes Tribunal which would be likely to result in substantially the same outcome as currently exists. On the other hand if a stay is granted it will place the respondents under increased financial pressure and would make it very difficult for them to insist upon carrying out the disputed work before accepting practical completion of the Works. The issue of whether practical completion has been achieved is before the Disputes Tribunal and one expects should be resolved within a reasonable time based on the short period between the Respondent's request at the end of January for a further hearing and that further hearing in February.

101 In these circumstances I consider the balance of convenience is substantially in favour of the respondents. I am not prepared to stay the operations of the orders.

102 On 12 May 2005 the Tribunal issued the following orders so the parties could be aware of the outcome, and act accordingly, on the basis that the reasons for decision would be issued later.

1. The application for leave to apply for the review of the decision of the Disputes Tribunal reflected in the order made on 2 March 2005 is granted, only on the ground that the Disputes Tribunal acted beyond its jurisdiction by reason that the respondents allegedly failed to provide the applicant with a preliminary notice, and is otherwise refused.

2. The application for stay of the said order is refused.

3. The matter is adjourned to a directions hearing on 2 June 2005.

I certify that this and the preceding 27 pages comprise the reasons for decision of the Tribunal.

______________________________

Clive Raymond

Senior Member