JURISDICTION	:	STATE ADMINISTRATIVE TRIBUNAL 

STREAM	:	COMMERCIAL & CIVIL 

ACT	:	BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA) 

CITATION	:	OWNERS OF STRATA PLAN NO 46493 and SMITH [2012] WASAT 41 

MEMBER	:	MS L WARD (MEMBER) 

HEARD	:	10 FEBRUARY 2012 

DELIVERED	:	24 FEBRUARY 2012 

PUBLISHED	:	1 MARCH 2012 

FILE NO/S	:	CC 32 of 2012 

BETWEEN	:	OWNERS OF STRATA PLAN NO 46493
Applicant
 
AND
 
BRIAN INGLIS SMITH
FRANJO TURIBAKA
Respondents 

Catchwords:
Who carried out the regulated building service ­ Registered building service provider or an approved owner builder ­ Building service practitioner ­ Time limit for complaint ­ Criteria for determining date of completion of regulated building service ­ Date on which the building service was last carried out ­ Preliminary action required ­ Form of the complaint 
Legislation:
Building Act 2011 (WA), s 1, s 2, s 3
Building Services (Complaint and Administration) Regulations 2011 (WA), reg 4, reg 6, reg 6(4), reg 7, reg 7(a), reg 7(b)
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5, s 5(b), s 5(1), s 5(3)(a), s 5(5)(b), s 6, s 6(2)(a), s 6(2)(b), s 11(1)(d)
Building Services (Registration) Act 2011 (WA), s 3, s 10, s 17, s 18, s 114
Home Building Contract Act 1991 (WA), s 3 
Result:
Application partially successful 
Category:    B 

Representation:
Counsel:
Applicant	:	Mr P Wellington
Respondents	:	Self­represented 
Solicitors:
Applicant	:	Paul Wellington Architect Solicitor Arbitrator
Respondents	:	N/A 

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL:  
Summary of Tribunal's decision
1		This application concerns a complaint of unsatisfactory building services in relation to parts of the common property in a five storey apartment building in Bennett Street, East Perth.
2		The complaint was made by the strata company against both Mr Smith and Mr Turibaka.  Mr Smith held the building licence for the building.  Mr Turibaka was a director of the developer and was involved in the day­to­day running of the project.
3		The complaint was made on 29 November 2011 under the Building Services (Complaint Resolution and Administration) Act 2011 (WA) which commenced on 29 August 2011.
4		Mr Smith and Mr Turibaka raised a number of preliminary issues in this Tribunal, including:
•	that the complaint was made out of time as the building was completed on 16 November 2005;
•	the correct respondent was the building company and not them personally; and
•	the formalities relating to the preliminary action and complaint form were not met and were therefore invalid.
5		In relation to the preliminary issues, the Tribunal found for the reasons set out below, in summary, that:
•	the complaint was made within time;
•	the correct respondent was Mr Smith as he was the registered building service provider who carried out the regulated building service.  Mr Turibaka was not the registered building service provider who carried out the regulated building service.  Therefore, Mr Turibaka is discharged from the complaint; and
•	Preliminary action and the complaint form were valid and effective.
6		It follows that the Tribunal will proceed to list the matter for final hearing of the substantive application.
7		Below is an edited and revised version of the reasons for decision of the Tribunal, which has been taken from the transcript of proceedings of the decision and the oral reasons for decision given on 24 February 2012.
Background
8		The building the subject of this complaint is a five storey, 20 apartment building at No 176 ­ 178 Bennett Street, East Perth.  The Owners of Strata Plan No 46493 (applicant or strata company) is the strata company which, collectively, represents all of the owners of the building, and it also owns and controls the common property of the building.
9		In summary, the strata company seeks an order for Mr Brian Inglis Smith and Mr Franjo Turibaka (respondents) to rectify unsatisfactory building services in relation to the common property in the building.  The applicant claims the unsatisfactory building services have resulted in a number of issues, including water ingress and damp parts of the common areas of the building.
10		Mr Paul Wellington, an architect and lawyer, represented the applicant.  The respondents are both self­represented.
New building regime
11		As the parties are no doubt aware, on 29 August 2011, a new building regime commenced in Western Australia with the commencement of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BS(CRA) Act).  The Building Services (Registration) Act 2011 (WA) (BS(R) Act) has also been passed.
12		The Building Act 2011 (WA) (Building Act) has been passed and s 1 ­ s 3 of the Building Act have commenced.  However, the remainder of the Building Act is scheduled to commence on 2 April 2012.
13		The BS(CRA) Act provides for a system of registration and approval for persons working in the building industry.  The BS(CRA) Act establishes the Building Commission (Commission) as a statutory role.
14		The BS(CRA) Act deals with the process of dealing with complaints and resolving disputes.  This is a statutory regime which involves the Commission and this Tribunal.  This statutory regime does not purport to cover the field, or to limit rights, which the parties may have in contract or tort elsewhere.
15		The Tribunal will now consider the building complaint the subject of this application.
Building complaint
16		On 29 November 2011 the Commission received the strata company's building complaint form relating to the building work done on the apartments by the respondents.  The building complaint form stated that the work in the building was completed on 30 November 2005.
17		Several documents were attached to the building complaint form, including:
•	a complaint listing eight claims;
•	a building licence, No 030179, issued by the City of Perth on 12 September 2003 to Mr BI Smith;
•	a certificate of classification from the City of Perth dated 30 November 2005;
•	minutes of strata meetings and correspondence between the strata manager and owners;
•	a preliminary notice dated 4 November 2010; and
•	reports from BSP Construction Consultants ­ building condition audit No 4072 dated 9 March 2010, No 7784 dated 3 October 2011 and No 7696 dated 26 September 2011.
18		The investigation report was completed by the Commission on 5 January 2012.  The report on the complaint, made under s 10 of the BS(R) Act, stated that the matter be referred to this Tribunal for the following reasons:
1)	to determine the respondents; and
2)	the matter is complex involving numerous reports.
Referral to the Tribunal
19		On 5 January 2012 the complaints manager, an authorised person appointed by the Building Commissioner of Western Australia (Commissioner), made a decision to refer a complaint made by the applicant against the respondents to the Tribunal pursuant to s 11(1)(d) of the BS(CRA) Act.
20		On 24 January 2012 the matter was listed for directions in the Tribunal.  The respondents raised several preliminary issues in relation to the matter.
21		The preliminary issues were listed for hearing on 10 February 2012.
22		In summary, the preliminary issues raised by the respondents were, in effect:
1)	Who are the correct respondents?
2)	Was the complaint filed within six years of completion of the building?
3)	Were the formalities relating to the preliminary notice and complaint form met?
23		Turning to the documents before the Tribunal, on 2 February 2012, the respondents filed written submissions and provided documents in relation to the preliminary issue.  In summary, the respondents' documents included:
•	submissions stating that the building was constructed by Nuform Construction Pty Ltd (Nuform).  Mr Brian Smith, an owner of Nuform, as a registered builder, applied for a building licence only, and managed the works in a supervisory role only, and did not complete any of the works;
•	a statutory declaration made by Mr Smith stating Nuform undertook and completed the building work as a registered builder at No 178 Bennett Street;
•	a statutory declaration made by Mr Turibaka stating Nuform undertook and completed the building work as a registered builder at No 178 Bennett Street; and
•	a letter from Hillam Architects dated 16 November 2005 addressed to Nuform Constructions Pty Ltd to '[w]hom it may concern' regarding compliance with the building licence stating:
Hillam Architects have made site visits and inspections during construction of the above project.  We confirm that to the best of our knowledge the building has been constructed in accordance with the approved plans (Building Licence no. 030179 as amended) and any building licence conditions for same.  Please refer to certification provided by consultants and contractors for specific areas of the works.
24		The respondents submitted that:
•	a preliminary notice was not served on Mr Smith or Mr Turibaka; and
•	the notice of proposed complaint was unsigned and undated.
25		The applicant's documents included, in summary:
•	Submissions to the effect that:
-	the building licence issued by the City of Perth No 030179 on 12 September 2003 was granted to Mr BI Smith;
-	the owners applied to the City of Perth for evidence of the completion date and received a certificate of classification to certify that council had approved the use of the building;
-	the Commission has already examined this issue on 20 December 2011.  The Commission accepted the certificate of classification and advised the applicant that the complaint was considered and accepted.  Therefore, the applicant believes the matter of jurisdiction is not under dispute;
-	preliminary notices were signed and dated on lodgement and copies were provided to the respondents; and
-	a notice was signed and given to the respondents on 4 November 2010, and the notices attached to the 29 November 2011 complaint are identical.
Summary of the evidence before the Tribunal
26		The apartment building was constructed by Nuform for Nevwest Pty Ltd (Nevwest).  Nuform was owned by Mr Brian Smith and Mr Franjo Turibaka.  Nuform was deregistered by the Australian Securities and Investments Commission (ASIC) on 25 July 2010.
27		Nuform built the building for the lump sum of $4,840,000 in accordance with the two page tender documents submitted by Nuform to Nevwest on 12 December 2003.  According to Mr Turibaka's evidence in the Tribunal, the contract was for Nuform to build to full completion.  The building took place in 2004 and 2005.  Residents moved into the building in early 2006.
28		Mr Smith submits that he is a registered builder, that he applied for the building licence and that he managed the works in a supervisory role only, and did not complete any of the works.
29		Mr Turibaka says that he is a director of Nevwest, the development company which owned the land the building is situated on.  Mr Turibaka handled the works on a day­to­day basis.  He negotiated for all of the materials and made sure that the project ran to schedule.
30		The applicant submits that it has served the complaint on both the holder of the building licence, Mr BI Smith, and also Mr Turibaka.
31		The applicant submits that both respondents carried out the building of the apartment building.
Documents provided at the hearing on 10 February 2012
32		Mr Turibaka provided the following documents at the hearing on 10 February 2012:
•	A letter dated 15 December 2003 from Mr Turibaka, a director of Nevwest, to Nuform acknowledging the receipt and acceptance of the form of tender of 12 December 2003.
•	Two pages of general conditions for the tender.
•	A letter dated 16 November 2005 from Hillam Architects.
•	City of Perth 'Certification of Structure' dated 24 October 2005.
•	A Letter dated 25 July 2010 from ASIC to Mr Turibaka notifying him that Nuform was deregistered on that day.
Documents provided by applicant on 14 February 2012
•	An email from Mr David Hillam dated 12 February 2012 in response to questions from Mr Paul Wellington, who is assisting the applicant, and stating in summary that:
-	the letter dated 16 November 2005 is not a certificate of practical completion; and
-	building would be substantially complete, but not necessarily stating that it was reasonably fit for human habitation.
Documents provided by respondents on 14 February 2012
•	Submission from Mr Turibaka that he was not the nominated builder and should be discharged from the proceedings.  Nevwest was the developing company and there were no presale buyers.  All units were sold as constructed.
•	Numerous letters regarding compliance details for various services dated between 17 October 2005 and 17 November 2005.
•	A letter from the Plumbers Licensing Board headed 'Major Plumbing Work Compliance certificate' dated 17 February 2006 stating 'number of fixtures installed ­ 40' and 'completion date 15 December 2005'.
33		The Tribunal will deal with each of the above preliminary issues below.
Are Mr Brian Smith and Mr Franjo Turibaka the correct respondents?
34		Under s 5(1) of the BS(CRA) Act, the question of the correct respondents requires an examination of who carried out the regulated building service.
35		The Tribunal notes that under s 5 of the BS(CRA) Act, a complaint can be made to the Commission about:
•	a regulated building service; or
•	a home building work contract matter.
36		The building of this apartment is not home building work as defined in s 3 of the Home Building Contract Act 1991 (WA), (see also s 3 of the BS(CRA) Act).
37		Therefore, the complaint in this matter must relate to a regulated building service not being carried out in a proper and proficient manner, or being faulty or unsatisfactory (s 5(1) of the BS(CRA) Act) to be accepted by the Commission.
38		Section 5(3)(a) of the BS(CRA) Act provides that the complaint can be made irrespective of whether the regulated building service was carried out before or after the BS(CRA) Act came into operation.
39		In this application, the Tribunal must identify who 'carried out' the regulated building service (s 5(1) of the BS(CRA) Act).
40		'Regulated building service' is relevantly defined in s 3 of the BS(CRA) Act to mean a building service carried out by:
1)	a registered building service provider;
2)	an approved owner/builder; 
3)	home building work in certain circumstances;
4) 	work prescribed for the purpose of the definition (see: reg 4 of Building Services (Complaints Resolution and Administration) Regulations 2011 (WA) (BS(CRA) Regulations) which prescribes painting.
41		There is no approved owner/builder in this case, nor any home building work nor any painting work within the terms of the relevant legislation.  Therefore, in this case, the complaint can only be made against a registered building service provider.
42		A registered building service provider is defined in s 3 of the BS(R) Act to mean:
1)	a building service contractor ­ a person registered under s 18; or
2)	a building services practitioner ­ a person registered under s 17.
43		The Tribunal notes that s 114 of the BS(R) Act states, in effect, that registration under the repealed Act continues under the new regime.
Firstly, is Mr Smith correctly named as a respondent in this complaint?
44		The Tribunal notes that the building licence was, in fact, issued by the City of Perth in the name of Mr BI Smith and not Nuform, as the respondents claimed at the directions hearing on 24 January 2012.
45		In this case, the regulated building service was carried out by Mr Smith as 'the building service practitioner' as, at the time, he was the registered person who held the building licence.  Mr Smith said that he managed the works in a supervisory role only.  While his role may have only been supervisory, it did, however, carry with it certain responsibilities as the registered builder and as the holder of the building licence.  These responsibilities included the need to comply with building standards and requirements, and also liability to future owners for building defects.
46		In the Tribunal's view, Mr Smith is correctly named as a respondent in this complaint as he was the registered building service provider who 'carried out' the regulated building service.
Secondly, is Mr Turibaka correctly named as a respondent in this complaint?
47		Mr Turibaka was a director of Nevwest.  He was not a registered building service provider in terms of the BS(R) Act at the time of the development in 2004 and 2005.
48		While Mr Turibaka may have possibly acted as the agent of the registered building service provider, Mr Smith, he was not the registered building service provider 'carrying out' the building work at the relevant time.
49		Therefore, in the Tribunal's view, Mr Turibaka is not capable of having a complaint made against him under the BS(CRA) Act.  Therefore, he should take no further part in these proceedings.  The application against Mr Turibaka is discontinued.
50		In the Tribunal's view, the correct respondent is the registered building service provider, Mr Smith.
Should Nuform have been a respondent in these proceedings?
51		Nuform is named as the company on the tender form submitted to the landowner and developer, Nevwest.  Nuform has now been deregistered by ASIC.
52		There is no satisfactory evidence before the Tribunal that Nuform was, at the time of building, a building service contractor within the terms of the BS(R) Act.  In addition, Nuform was not the holder of the building licence.  Therefore, Nuform was not carrying out the regulated building services within the terms of the legislation and, as such, it is not capable of being a respondent in these proceedings.
Was the complaint lodged within time?
53		Section 6 of the BS(CRA) Act imposes a six year limit within which complaints must be made.
54		In this case, the complaint was lodged with the Commission on 29 November 2011.  Therefore, for the complaint to be in time, the completion date must have been on or after 29 November 2005.
55		Section 6 'Time limit for complaint' states that:
(1)	A building service complaint is made out of time if the complaint is made more than 6 years after the completion of the regulated building service to which the complaint relates.
(2)	For the purposes of subsection (1) a regulated building service is taken to be completed ­
(a)	if the criteria for determining the date of completion for that building service are prescribed ­ on the date determined in accordance with the criteria;
(b)	if paragraph (a) does not apply ­ on the date on which the building service was last carried out.
56		In relation to s 6(2)(a) of the BS(CRA) Act, reg 7 of the BS(CRA) Regulations headed 'Criteria for determining date of completion of regulated building service' applies.
57		Regulation 7(a) of the BS(CRA) Regulations 'has not come into operation yet'.  Accordingly, the provision relating to the work being completed when a notice of completion of the work is given to a relevant permit authority cannot apply in this case.  The commencement of reg 7(a) is linked to the commencement of the Building Act.  The Building Act is scheduled to commence on 2 April 2012.
58		Relevant to this application, reg 7(b) of the BS(CRA) Regulations applies only where the regulated building service was:
•	not carried out under a building permit; and
•	the contract for which the work was carried out provides for a date of practical completion.
59		In this application there was a building permit issued by the City of Perth and the form of tender did not provide a date for practical completion.  Accordingly, reg 7(b) of the BS(CRA) Regulations does not apply in this case.  In summary, reg 7 of the BS(CRA) Regulations does not apply in this case.
60		For the sake of clarity in this matter, under the BS(CRA) Act, practical completion is not the date from which the time limit for a complaint runs.
61		Accordingly, s 6(2)(b) of the BS(CRA) Act applies and the Tribunal must be satisfied of the date on which the building service was last carried out as the date of completion for the building service.
62		In this case, the applicant submits that the building service was last carried out on 30 November 2005, based on the certificate of classification issued by the City of Perth on that date.  On that date the building was approved for the use of the building for residential purposes, although the Tribunal notes that people did not actually start residing in the building until around February or March 2006, when the strata title was issued.
63		In contrast, the respondent submits that the completion date was on 16 November 2005, based on the letter from Hillam Architects of that date, the contents of which are set out above.
64		At the applicant's request, Hillam Architects have since stated in an email dated 12 February 2012 to the applicant's solicitor that, for the letter to have been given on 16 November 2005, the building would have been 'substantially complete'.
65		However, as set out above, s 6(2)(b) of the BS(CRA) Act applies, and the regulated building service is stated to be complete 'on the date on which the building service was last carried out', not when it was substantially complete.
66		'Building service' is defined in s 3 of the BS(CRA) Act to mean 'building work' as defined in the Building Act.  The definition of 'building work' in the Building Act is wide and, relevantly to this case, it includes the construction of a building.
67		In the Tribunal's view, on the facts of this matter, where the contract was to fully build an apartment building, the date of completion is, by necessity, a date which is after practical completion.  For example, it is possible that the building may not be complete until the defects period has elapsed and all defects have been attended to by the builder
68		Turning to the evidence before the Tribunal of the date on which the building service was last carried out, the Tribunal notes that, based on the information before it, the indications are that the building service was last carried out sometime after 16 November 2005, especially as:
•	the building was only 'substantially complete' on that date, according to the recent email from Hillam Architects to the applicant's solicitor;
•	the Certificate of Classification was issued by the City of Perth on 30 November 2005; and
•	the certificate provided to the Tribunal by Mr Turibaka, from the Plumbers Licensing Board and headed 'Major Plumbing Work Compliance Certificate' dated 17 February 2006, states the installation of the plumbing was ' completed on 15 December 2005'.
69		Accordingly, the Tribunal is satisfied, based on the certificate from the Plumbers Licensing Board, that the building service was last carried out sometime on 15 December 2005.
70		Accordingly, the Tribunal is satisfied that the application was lodged within six years from the date on which the building service was last carried out.
71		Therefore, the building complaint was lodged within time with the Commission.
Were the formalities relating to the preliminary notice and complaint form met?
72		In summary, the respondents submit that:
•	the preliminary notice provided to the respondents is not signed or dated and therefore it is not valid; and
•	the annexure to the complaint form is not signed or dated and therefore it is invalid.
73		Relevant to the issue relating to the preliminary action and form of the complaints are:
•	section 5(5)(b) of the BS(CRA) Act which refers to the preliminary action required before making a complaint; and
•	section 5(b) of the BS(CRA) Act which refers to the manner and form of the complaint approved by the Commission.
74		The requirements for preliminary action are set out in reg 6 of the BS(CRA) Regulations which is headed 'Preliminary action'.  The requirements under reg 6 of the BS(CRA) Regulations include that the notice:
•	be in writing;
•	gives the remedy the complainant proposes to seek; and
•	gives the evidence the complainant proposes to rely upon.
75		The complaint must include proof that the notice has been given as required, that is, at least 14 days beforehand.
76		Further, and importantly, reg 6(4) of the BS(CRA) Regulations states that the Commissioner may waive these requirements where he is satisfied that adequate notice about the proposed complaint has been given.
77		The obvious intention of reg 6 and, in particular, reg 6(4) of the BS(CRA) Regulations is that the respondent has adequate notice about the complaint.  In this case, a written preliminary notice was given to the respondents in late 2010, some 12 or so months before the complaint was lodged with the Commission.  In the Tribunal's view, the regulatory requirements under reg 6 were met, and, even if they were not, it was open to the Commissioner to waive those requirements in the circumstances set out in reg 6(4) of the BS(CRA) Regulations.
78		In relation to the respondent's claim that the annexure to the complaint form is not signed or dated and is therefore invalid, there appears to be no requirement under the BS(CRA) Act or the BS(CRA) Regulations for the annexure to the complaint to be signed or for the preliminary action to be signed.
79		Accordingly, these aspects of the complaint, which were challenged by the respondents in this Tribunal, are not accepted, and do not invalidate the complaint lodged with the Commission on 29 November 2011.
Conclusion
80		In summary, the Tribunal is satisfied that the application should proceed in this Tribunal against Mr Smith.
81		The matter will now be programmed through to a final hearing.
Order
82		For the above reasons, the Tribunal makes the following orders:
1.	For the reasons given to the parties already, the Tribunal determines the preliminary issue as follows:
does the Tribunal have jurisdiction to hear the application in circumstances where the respondents submit that:
	Tribunal answer: yes.
1.1	they are not the correct respondents because the building licence was issued by the City of Perth in the name of Nuform Constructions Pty Ltd, not the respondents.
Tribunal answer: Mr Brian Inglis Smith is the correct respondent.  Mr Franjo Turibaka is discharged from the proceedings.
1.2	the application is out of time, because it was lodged with the Building Commission on 29 November 2011 which is more than six years after the completion of the regulated building service to which the complaint relates, namely the supervising architect stated in a letter to Nuform Constructions Pty Ltd that practical completion had occurred on 16 November 2005.
Tribunal answer: the building service complaint was not made more than six years after the completion of the regulated building service and it is therefore within time.
1.3	the preliminary notice provided to the respondents is not signed or dated therefore it is not valid.
	Tribunal answer: The preliminary action is valid.
1.4	the annexure to the complaint form is not signed or dated and therefore it is invalid.
	Tribunal answer: the annexure to the complaint form is valid.
2.	The proceeding is adjourned to a further directions hearing at 11 am on 15 March 2012 in order to programme the matter to a final hearing.

I certify that this and the preceding [82] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________
MS L WARD, MEMBER