Catchwords:
Disciplinary matter – Review of decision by Building Commissioner to refuse to accept complaint – Whether the decision was wrong, or sufficiently open to doubt – Turns on own facts
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JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT : BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION : WANG and BUILDING COMMISSIONER [2025] WASAT 29
MEMBER : MS N OLDFIELD, MEMBER
HEARD : DETERMINED ON THE DOCUMENTS
DELIVERED : 9 APRIL 2025
FILE NO/S : CC 675 of 2024
BETWEEN : LEI WANG
Applicant
AND
BUILDING COMMISSIONER
Respondent
Catchwords:
Disciplinary matter – Review of decision by Building Commissioner to refuse to accept complaint – Whether the decision was wrong, or sufficiently open to doubt – Turns on own facts
Legislation:
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(1), s 5(2), s 15(1), s 16(1), s 16(2), s 57(2)
Building Services (Registration) Act 2011 (WA), s 53, s 53(1), s 53(1)(a)(i),
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s 53(1)(a)(ii), s 53(1)(i), s 53(1)(j)
Home Building Contracts Act 1991 (WA), s 9(1), s 9(1)(a), s 13, s 13(1), s 13(4), s 14, s 14(1), s 25D(1)(e), s 25D(1)(e)(i), s 28(1), s 28(3), s 31(3)
Home Building Contracts Regulations 1992 (WA), reg 7B
Interpretation Act 1984 (WA), s 61
State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(2), s 29(1), s 29(3), s 31
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant
:
N/A
Respondent
:
N/A
Solicitors:
Applicant
:
N/A
Respondent
:
Department Of Mines, Industry Regulation And Safety – Legal Services Directorate
Case(s) referred to in decision(s):
Wilson v Metaxas [1989] WAR 285
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REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
1
Lei Wang and Zhiyong Chen lodged with the Building Commissioner (the Commissioner) a disciplinary complaint in relation to Intrinsic Project Pty Ltd (Intrinsic). The Commissioner refused to accept the complaint.
2
Ms Wang sought a review of the Commissioner’s decision. On 12 February 2025 the Tribunal ordered this matter would be determined on the documents, without a hearing.
Issues to be determined
3
The issues to be determined in this proceeding were:
(a) Should the Tribunal grant leave to review the decision of the Commissioner?
(b) If the answer to (a) is yes, was the correct and preferable decision to refuse or accept the complaint?
4
For the reasons which follow, my decision is to refuse leave to review the Commissioner’s decision.
Relevant legislation
BSCRA Act
5
The Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) provides that a person may complain to the Commissioner regarding the alleged occurrence of a disciplinary matter in relation to a registered builder (disciplinary complaint).1
6
A ‘disciplinary matter’ is defined by reference to the Building Services (Registration) Act 2011 (WA) (the BSR Act) – see paragraph [9] below.2
7
After receiving a disciplinary complaint, the Commissioner must decide whether to accept or refuse to accept the complaint.3 The Commissioner may refuse to accept a complaint if:4
1 BSCRA Act, s 5(1), s 5(2) and s 15(1).
2 BSCRA Act s 3.
3 BSCRA Act, s 16(1).
4 BSCRA Act, s 16(2).
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(a) the complaint was not in accordance with the BSCRA Act;
(b) the complaint was made more than 6 years after the alleged occurrence of the disciplinary matter;
(c) the complaint was vexatious, misconceived, frivolous or without substance;
(d) the matter was the subject of another complaint under the BSCRA Act;
(e) an arbitrator or other person or a court or other body has made an order, judgment or other finding about the matter; or
(f) the matter had previously been refused by the Commissioner.
8
If the Commissioner refuses to accept a disciplinary complaint, the person aggrieved may apply to the Tribunal for a review of that decision, but only if the Tribunal grants leave.5
BSR Act
9
A ‘disciplinary matter’ in relation to a registered building service provider is defined by s 53 of the BSR Act. Section 53(1) contains list of things which are disciplinary matters, the most relevant of which to these proceedings are as follows:
(a) that after registration the registered building service provider has been convicted —
(ii) of an offence against this Act, the Building Services (Complaint Resolution and Administration) Act 2011, the Building Act 2011, the Building and Construction Industry (Security of Payment) Act 2021, the Local Government (Miscellaneous Provisions) Act 1960 or the Home Building Contracts Act 1991…
…
(i) that the registered building service provider has engaged in fraudulent conduct in connection with the carrying out or completion of a building service;
5 BSCRA Act, s 57(2).
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(j) that the registered building service provider has engaged in conduct that is harsh, unconscionable, oppressive, misleading or deceptive in connection with —
(i) a contract for the carrying out or completion of a building service or a variation of that contract; or
(ii) the carrying out or completion of a building service;
SAT Act
10
Pursuant to the provisions of the State Administrative Tribunal Act 2004 (WA) (SAT Act), a review by the Tribunal is a fresh reconsideration. The purpose is to determine the best and preferable decision as at the time of the review.6
11
The Tribunal is not restricted to the information before the original decision-maker and can consider new information.7 The Tribunal exercises the functions and discretions of the original decision-maker and may in its discretion affirm, vary or set aside the original decision.8 The decision-maker may also be invited to reconsider their decision.9
Background
12
The relevant facts in this matter have not been expressly agreed by the parties, but neither is it clear that any significant disagreement exists.
13
Ms Wang alleged:10
(a) On 27 December 2020 she and Intrinsic contracted for the construction of a house. The price was $339,000 and the contract included a ‘turnkey finish’ clause and a set of design drawings approved by Ms Wang.
(b) Without her consent, Intrinsic split this amount into the sum of $237,300 in the construction contract and a variation amount of $101,700 and removed from the contract the turnkey finish clause and the requirement to obtain a building permit within 45 days.
6 SAT Act, s 27(1) and (2).
7 SAT Act, s 27(1).
8 SAT Act, s 29(1) and (3).
9 SAT Act, s 31.
10 Applicant’s Statement of Issues, Facts and Contentions (ASIFC) lodged 27 January 2025 at paras 4 – 11.
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(c) Ms Wang signed the variation on 30 December 2020, but Intrinsic re-sent the variation on or about 1 February 2021 to attempt to change the date.
(d) On 25 November 2021 Intrinsic sent an invoice for the ground slab progress payment, although the work which should have been completed by that stage was not.
(e) On 25 February 2022, Intrinsic issued a variation by which it sought to increase the construction contract price by $26,099.70 in relation to the cost of bricklaying.
(f) On 22 April 2022, Intrinsic issued a variation due to changes in the design documents for which it sought an additional $99,499.95. Ms Wang had the following concerns:
(i) The changes in design had been requested prior to the grant of the building permit on 5 October 2021 and had been requested due to mistakes made by the designer.
(ii) The design changes, whilst visually distinct, would not have significantly contributed to an increase in the cost of construction.
(iii) The variation also removed work which had been previously valued at $46,047 by Intrinsic. Accordingly, the variation represented an actual price increase of $145,546.95.11
(g) Ms Wang terminated the construction contract on or about 22 November 2022 because between November 2021 and May 2022 Intrinsic had ceased work and refused to restart work unless Ms Wang agreed to the variations and because the time in which construction should have been completed had expired.
14
Ms Wang and the Commissioner agreed that:12
(a) On or about 19 July 2023 Ms Wang made a building service and home building work contract complaint to the Commissioner (the initial complaint). This was managed by the Complaints
11 The amount in paragraph [11(e)] has been adjusted to include GST. It is unclear whether the amount of $46,047 is inclusive or exclusive of GST. It has been assumed to be inclusive.
12 Respondent’s Statement of Issues, Facts and Contentions (RSIFC) lodged 20 January 2025 at paras 12 -15; ASIFC at paras 12 – 15.
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Branch. On or about 17 October 2023 the Commissioner referred the initial complaint to the Tribunal.
(b) On or about 20 December 2023, an officer from the Complaints Branch referred the initial complaint, or parts of it, to the Enforcement Branch.
(c) The Enforcement Branch considered whether there had been offences against various sections of the Home Building Contracts Act 1991 (WA).
15
The Commissioner alleged that on 9 January 2024 an officer from the Enforcement Branch advised Mr Chen the outcome of the assessment was to take no further action, except in one respect.13 The officer stated even though a prosecution was out of time, the Enforcement Branch would write to Intrinsic to advise that it was a breach of s 28(3) of the Home Building Contracts Act 1991 (WA) to contract out of s 9 of that Act.14
16
The parties agreed that:15
(a) On 13 January 2024 Ms Wang and her partner Mr Chen lodged a disciplinary complaint against Intrinsic with the Commissioner.
(b) The complaint alleged Intrinsic had engaged in conduct which was fraudulent and harsh, unconscionable, oppressive and deceptive.
17
The Commissioner alleged the Enforcement Branch assessed the complaint as disclosing five potential grounds for disciplinary action.16 In correspondence dated 4 September 2024 the Commissioner refused to accept the complaint and explained their reasons.17
Factual findings
18
I make the following findings of fact on matters which are relevant to the issues to be determined.
13 RSIFC at para 16.
14 RSIFC at para 17.
15 ASIFC at paras 18 – 19; RSIFC at paras 18 – 19.
16 RSIFC at para 20; ASIFC at para 20.
17 RSIFC at para 21; ASIFC at para 21.
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19
On 13 January 2024 Ms Wang and Mr Chen lodged a disciplinary complaint against Intrinsic with the Commissioner.18 The complaint stated in part:
On 21 Apr 2022, the owner received a notice of contract variation cost from the builder for the design modification which all occurred before Building Permit granted date on 05 Oct 2021, whilst the ground slab has been executed in November 2021. The variation included a $90,454.50 plus GST cost increase and excluded a few items from the original contract …
- According to Section 15(1)(a) and 15A(b) of Home Building Act 1991, the builder has engaged in conduct that is harsh, unconscionable, oppressive and deceptive in connection with negotiation to vary a contract after execution…
- The builder knew the industry had a significant cost increase of labour and materials (refer to the variation #1 bricklayer price increase), he calculated the price of [final] design in Apr 2022 and deceitfully compared it to the original design one which calculated in Dec 2020 and got a false conclusion, he used the false conclusion as a subject condition to resume the suspended contract work since November 2021. The builder gains a benefit of escape the risk of economic loss from the execution of a lump sum contract which suffers a significant cost increasing, and it causes a terrible detriment to the owner.
According to Section 409 of Criminal Code Act, the builder has engaged in fraudulent conduct.
20
The office of the Commissioner gave this complaint the reference ‘B2024-121’.19
21
On 4 September 2024 the Commissioner’s delegate wrote to Ms Wang and Mr Chen to advise that disciplinary complaint B2024-121 had been refused.20 The letter stated the complaint had been assessed on the basis of five allegations:
(a) Intrinsic removed from the construction contract a clause which required it to obtain the building permit within 45 days of the contract date in order to have unlimited time to complete the design phase.
18 Respondent’s s 24 Bundle of Documents (RBOD) lodged 20 December 2024 at pages 143 – 144.
19 RBOD pages 188 and 204.
20 RBOD at pages 205 – 209.
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(b) Intrinsic removed the annotation ‘turnkey finish’, that was in the original costings quote, from the second cost estimate.
(c) Intrinsic split the construction contract for the purpose of reducing the premiums which were payable in relation to home indemnity insurance.
(d) Intrinsic was aware of the increasing cost of materials and labour but instead of factoring them into the contract price, planned to raise a variation and did so after receiving the ground floor slab progress payment.
(e) The effect of Intrinsic increasing the contract price and reducing the contractual scope of the work was akin to rise-and-fall clauses and cost plus contracts.
(the five allegations).
Should leave to review be granted?
22
In order to grant leave to seek a review, the Tribunal must be satisfied:21
(a) the Commissioner’s decision was wrong, or at least appears sufficiently open to doubt as to justify the grant of leave; and
(b) substantial injustice would occur if the decision were not reversed.
23
The requirement to demonstrate a substantial injustice ‘is no more than a guideline for the exercise of what must necessarily be and remain a broad discretion to grant or withhold leave’.22
Was the Commissioner’s decision wrong or doubtful?
24
A preliminary step was to consider the Commissioner’s characterisation of the complaint.
Characterisation of the complaint
25
The manner in which the Commissioner interpreted or characterised the complaint as the five allegations is set out in paragraph [21] above.
21 DR Parry and B De Villiers, Guide to Proceedings in the Western Australian State Administrative Tribunal (2012) at [307].
22 Wilson v Metaxas [1989] WAR 285 at 294.
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26
Ms Wang, whilst disputing the conclusions of the Commissioner, did not suggest the five allegations were an incorrect or incomplete way to characterise her complaint.23
27
Various aspects of the facts as alleged by Ms Wang could be the subject of home building works contractual claims pursuant to s 5 of the BSCRA Act.24 They are not relevant to these proceedings.
28
It has not been alleged, and I am satisfied, the five allegations are an appropriate description of the complaint.
The five allegations
The 45 working day clause
29
The first allegation was that in order to have unlimited time in the design phase, Intrinsic removed from the construction contract the clause which required it to obtain the building permit within 45 days of the contract date.
30
The Commissioner’s decision was:25
(a) Clause 2(a) of the construction contract made the contract conditional upon the grant of a building permit within 45 working days from the date of the contract26. Special Condition 2 purported to delete the words ‘occurring within FORTY FIVE (45) working days from the date of this Contract’.27
(b) In deleting those words, Intrinsic contracted out of s 9(1)(a) of the Home Building Contracts Act 1991 (WA) (HBC Act) in breach of s 28(3) of the HBC Act. However, the time in which this breach could have been prosecuted had expired.
(c) The effect of s 9(1)(a) of the HBC Act was upon the parties’ contractual rights. Even if Special Condition 2 had not been included in the construction contract, Intrinsic could have taken as much time as it considered necessary in the design phase.
23 ASIFC at para 34; Annexure to the application entitled ‘Appeal to the Decision made by Building Commissioner regarding the Disciplinary Complaint (B2024-121) on 4 September 2024’ (AA) lodged 22 September 2024 at paras 5 – 9.
24 These may have formed part of the initial complaint which was referred to the Tribunal.
25 RBOD pages 206 – 207.
26 RBOD page 64.
27 RBOD page 80.
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(d) The inclusion of Special Condition 2 had no practical effect because Intrinsic did not seek to rely upon the modified clause 2(a) to levy price increases and the contractual time for completion was not affected due to the termination of the construction contract.
(e) These matters did not evidence the existence of a disciplinary matter.
31
Ms Wang objected to the Commissioner’s assessment for the following reasons:28
(a) the three-year prosecution limitation did not apply because her complaint was made on or about 20 December 2023 and Intrinsic breached the HBC Act on or about 30 December 2020;
(b) there is a six-year limitation on disciplinary matters;
(c) the delay caused direct harm to her by reason of increased rental and mortgage costs;
(d) the insertion of Special Condition 2, coupled with the contractual obligation to commence work after receipt of all relevant approvals, constituted fraudulent conduct which is a disciplinary matter.
32
I do not consider the Commissioner’s decision was wrong or sufficiently doubtful as to justify the grant of leave for the following reasons.
Contractual rights
33
The unamended clause 2(a) of the construction contract stated the contract was subject to various things (each a ‘condition’) occurring within 45 days of the date of the contract. Clauses 2(e) and 22(a) stated that if the builder were solely responsible for the non-fulfillment of a condition, the contract was not altered except as otherwise agreed between the parties. Clauses 2(e), 22(b) and 22(c) stated that if the owner were solely responsible for non-fulfilment of a condition or both the builder and owner had failed to comply or if neither had failed to comply with a condition, then the contract was not altered, except as otherwise
28 ASIFC at para 34(a).
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agreed but subject to the builder
‘s right in clause 22(d) to increase the contract price.
34
The unamended clause 2(a) of the construction contract reflected s 9(1) of the HBC Act. Section 28(1) of the HBC Act states that an agreement which purports to exclude or restrict or modify the operation of any provision of that Act to the disadvantage of an owner is to that extent void.
35
Accordingly, to the extent the amendment of contract clause 2(a) may have operated to the detriment of Ms Wang, it was void. The amendment would have been valid if it operated in her favour.
Prosecution for breach
36
Section 28(3) of the HBC Act provides a penalty of $10,000 for entering into any arrangement with the intent directly or indirectly to defeat, evade or prevent the operation of the Act. Section 31(3) of the HBC Act states that a prosecution for such an offence ‘may be commenced within 3 years after the date on which the offence was allegedly committed, but not later’.
37
The construction contract which included the amendment at Special Condition 2 was dated 30 December 2020. Therefore, the power to prosecute a breach of s 28(3) expired on 2 January 2024 (because 30 December 2023 was a Saturday and the last day for performance could not be a weekend or public holiday – s 61 Interpretation Act 1984 (WA)). The parties have not pointed to, and I have not seen, anything which provides that the lodgement of a disciplinary complaint prevents the expiration of the time limit for prosecution.
38
Therefore, it was not possible for there to be a disciplinary matter pursuant to s 53(1)(a)(ii) by reason of Intrinsic being convicted of an offence under the HBC Act.
Other bases
39
The materials lodged by Ms Wang do not persuade me the amendment of clause 2(a) was (or might be) fraudulent, harsh, unconscionable, oppressive, misleading or deceptive pursuant to s 53(1)(i) or s 53(1)(j) of the BSR Act.
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The ‘turnkey finish’ clause
40
The second allegation was that Intrinsic removed the words ‘turnkey finish’ from the costs estimate which formed part of the construction contract when those words had been included in the original costs quotation.
41
The Commissioner’s decision was:29
(a) The list of inclusions in both the quotation and contractual costs estimates appeared to be identical. Accordingly, the absence of the words ‘turnkey finish’ did not appear to have altered the scope of works.
(b) This did not evidence the existence of a disciplinary matter.
42
Ms Wang objected on the basis that removal of this phrase without notice had the effect of reducing the scope of works to her detriment and such conduct was fraudulent and a disciplinary matter.30
43
I do not consider the Commissioner’s decision was wrong, nor appears sufficiently open to doubt as to justify the grant of leave, for the following reasons:
(a) The original costs quotation (quotation) and the costs estimate which formed part of the construction contract (estimate) were identical save for the words ‘Turnkey Finish as the estimation and specification shown above $310,000.00 Include GST’ in the quotation.31
(b) Both the quotation and estimate included internal painting, floor coverings, window treatments, cooktop, oven, rangehood, hot water unit, outdoor paving, clothes hoist and letterbox.
(c) The Macquarie Dictionary defines:32
(i) ‘turnkey’ to relevantly include ‘of or relating to a complete product, system, etc., which is supplied or installed and ready for immediate use’; and
29 RBOD, page 207.
30 ASIFC at para 34(b).
31 ABOD pages 1 – 5; RBOD pages 48 – 52.
32 Macquarie Dictionary Online, 2025, Macquarie Dictionary Publishers, an imprint of Pan Macmillan Australia Pty Ltd, www.macquariedictionary.com.au.
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(ii) ‘turnkey contract’ to mean ‘a contract in which the contractor undertakes to complete an installation or building to the point of readiness for operation or occupancy’.
(d) Therefore the scope of works had not altered and Intrinsic had contracted to supply a house which was turnkey, or in other words, ready to occupy.
(e) This in turn meant Ms Wang had not demonstrated that Intrinsic had (or might have) by omitting those words from the estimate:
(i) caused her any detriment;
(ii) been fraudulent, harsh, unconscionable, oppressive, misleading or deceptive pursuant to s 53(1)(i) or s 53(1)(j) of the BSR Act.
Home Indemnity Insurance
44
The third allegation was that Intrinsic split the agreed price between the construction contract and a variation. When applying for home indemnity insurance, Intrinsic declared only the price contained in the construction contract document instead of the whole price, thus reducing its premium.
The decision
45
The Commissioner’s decision was:33
(a) section 25D(1)(e) of the HBC Act required a builder performing residential building work to obtain insurance cover for a sum which was the lesser of:
(i) $100,000 or $200,000 depending on the policy date; or
(ii) the cost of the building work;
(b) Intrinsic complied with this requirement;
(c) there was no evidence the actions taken by Intrinsic caused Ms Wang any detriment;
(d) this did not evidence the existence of a disciplinary matter.
33 RBOD, page 207.
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The objection
46
Ms Wang objected on the basis that:34
(a) Intrinsic ‘split’ the construction contract and used only the sum of $237,300 for the home indemnity insurance without notice to her;
(b) in this manner, Intrinsic saved on the premium payable but left her with lower insurance coverage, which was fraudulent; and
(c) Intrinsic charged her the cost of the insurance premium payable on a contract price of $339,000, paid the lower premium and ‘kept the difference’ which was stealing.
My decision
47
The amendment to reg 7B of the Home Building Contracts Regulations 1992 (WA) which increased the prescribed minimum insurance cover for the purposes of s 25D(1)(e)(i) HBC Act took effect on 1 December 2022.35 The policy of home indemnity insurance in relation to this matter was issued on 7 September 202136 and accordingly the insurance coverage required pursuant to the HBC Act was $100,000.
48
If the relevant circumstances under the home indemnity insurance policy existed, the maximum which would have been paid by the insurer was $100,000. Therefore, regardless of whether Intrinsic declared a contract price of $237,300 or $339,000, the insurance cover was the same.
49
It is in the nature of a fixed price contract that the price of the contract will not alter, despite changes in the builder’s costs. It is not stealing if a builder does not pass along a saving, in the same way an owner is largely protected if the price of materials or labour becomes more expensive than estimated by the builder.
50
In relation to those points, I am not satisfied the decision of the Commissioner was wrong. There is however one additional point.
51
On the limited information available, it may be arguable that the construction contract dated 30 December 2020 and the undated variation executed by Ms Wang and Intrinsic together comprised one contract.37
34 ASIFC at para 37(c); AA at para 12.
35 See the Compilation Table to the Home Building Contracts Regulations 1992 (WA).
36 RBOD, page 98.
37 RBOD, pages 54 – 80 and 86 – 87.
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In which case it may be further arguable that Intrinsic misled the insurer
by declaring $237,300 to be the contract sum.
52
The terms of the policy of home indemnity insurance have not been lodged with the Tribunal. There is no evidence as to whether a misstatement of the contract price would have caused the insurer to deny insurance coverage to Ms Wang.
53
Neither party addressed that issue in their submissions or evidence. Accordingly, the possibility the misstatement may have affected the insurance policy is speculation.
54
Whilst the decision of the Commissioner may be attended by a speculation of doubt in relation to that point, I am not satisfied there is sufficient doubt to justify a grant of leave.
The April 2022 variation
55
The fourth allegation was that the design cost variation issued by Intrinsic on 22 April 2022 was not legitimate, but used for the purpose of increasing the price of the construction contract.
The decision
56
The Commissioner’s decision was:38
(a) The design cost variation appeared to reflect the additional cost of the various changes to the project design, most of which had been requested by Ms Wang. It was therefore not clear the variation reflected general increases in the cost of labour and materials.
(b) Perhaps Intrinsic should have calculated the cost of the design cost variation by the time of the ground floor slab invoice in November 2021, but it was not clear that it had done so.
(c) There were significant increases in the cost of labour and materials after the quotation on 27 December 2020. But there was no evidence that Intrinsic planned to recover these by way of the design cost variation or that it had planned to delay issuing that variation to the detriment of Ms Wang.
(d) This did not evidence the existence of a disciplinary matter.
38 RBOD, pages 207 – 208.
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57
The decision of the Commissioner at paragraph [56(a)] above appears to have included a consideration of documents which were not filed with the Tribunal, but were referred to in an internal memorandum:39
(a) On 7 February 2021 Ms Wang advised Intrinsic she no longer wished the house design to be based on the plans by reference to which the construction contract had been priced. Intrinsic was instructed to create a new set of plans based upon another builder’s plans which were subject to copyright protection.
(b) There were compliance issues with the design which included but may not have been limited to a request by the City of Stirling for amendments to the plans.
(c) In June 2021 the plans were approved by the City of Stirling. In July 2021, Ms Wang expressed dissatisfaction with the design.
(d) On 6 August 2021 Intrinsic advised Ms Wang the architectural drawings were complete and they were waiting on the structural drawings. During this time Ms Wang sought a further adjustment to the stair detail in the plans.
The objection
58
Ms Wang objected to the decision of the Commissioner for the following reasons:40
(a) The changes in the design were caused by Intrinsic in February 2021, mistakes by Intrinsic’s designer in April 2021 and her requests between April and August 2021 which were necessitated by further mistakes by the designer. All changes were prior to the grant of the building permit on 5 October 2021.
(b) The design cost variation included the removal of work which had been valued by Intrinsic at $46,047 and so the actual price increase exceeded 40% of the contract price.
(c) Intrinsic applied ‘inflated material and labour costs’ in April 2022 to estimate the cost of the new design drawings when compared with the cost estimation in the contract. Intrinsic should have
39 RBOD, page 190.
40 ASIFC at paras 9 – 10.
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reestimated the original contract drawings with April 2022 costs to make a fair comparison.
(d) The changes cited by Intrinsic as justifying the design cost variation would not have contributed to increased costs.
My decision
59
The construction contract allows for changes in price in specified circumstances, including where:
(a) an owner wishes to vary the works to be performed or the contract documents and if the builder is prepared to agree – clause 12(a);
(b) there are circumstances which the builder could not have reasonably foreseen when the contract was made (except where the only change is an increase in the costs of labour or materials) – clause 12(b);
(c) any condition in clause 2(a) has not been met for reasons other than the builder’s sole failure to comply with their obligations in clause 2(c) – clause 22.
60
Those clauses are not in breach of the HBC Act.41 Therefore, if the design cost variation was within the ambit of a valid contractual provision allowing an increase in price, then the design cost variation was likely to also be valid.
61
A dispute regarding the validity of the design cost variation could have been the subject of a contractual complaint pursuant to s 5(2) of the BSCRA Act.
62
Even if the design cost variation were invalid for one or more of the reasons stated by Ms Wang, I am not satisfied this is likely to have been within the ambit of s 53 of the BSR Act because:
(a) a builder may issue a variation or notice of a price increase which is ultimately held to be invalid without having acted in a manner which constituted a disciplinary matter; and
(b) the materials lodged by Ms Wang do not satisfy me the conduct of Intrinsic in issuing the design cost variation could fall within the definition of a ‘disciplinary matter’.
41 HBC Act, s 13(4).
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63
For these reasons, I do not consider the Commissioner’s decision was wrong, nor sufficiently open to doubt as to justify the grant of leave.
Not a fixed price contract
64
The fifth allegation was that in issuing the bricklayer and design cost variations, Intrinsic created a situation that was akin to rise-and-fall clauses or a cost plus contract which was contrary to the fixed price contract and in breach of s 13(1) and s 14(1) of the HBC Act.
65
The decision of the Commissioner was:42
(a) On their face, the variations did not purport to introduce a riseand-fall clause but were requests by Intrinsic to vary the contract.
(b) A price increase under s 13 of the HBC Act would not be a variation to a contract but would reflect a builder’s right to increase the contract price for one or more of the reasons specified in s 13. The Commissioner called them variations because it appeared Intrinsic did not insist upon its entitlement when Ms Wang did not make payment in accordance with the variations.
(c) On their face, the variations did not purport to vary the terms of the fixed price contract so that it became a cost plus contract. Even if they had, they could only have so varied the contract from the date Ms Wang had agreed to it.
(d) There was no evidence the variations were by themselves a riseand-fall clause or that they varied the contract so that it contained a rise-and-fall clause or became a cost plus contract.
(e) This did not evidence the existence of a disciplinary matter.
66
Ms Wang’s objections to this part of the Commissioner’s decision focussed on the bricklayer variation. She stated that variation constituted a rise-and-fall clause in violation of s 13 of the HBC Act and converted the building contract into a cost plus contract in breach of s 14 of the HBC Act.43 My assumption is that Ms Wang held the same objections in relation to the Commissioner’s decision regarding the design cost variation.
42 RBOD, pages 208 – 209.
43 AA at paras 9 and 13(f); ASIFC at para 34(e).
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67
I do not consider the Commissioner’s decision was wrong or sufficiently doubtful as to justify the grant of leave for the following reasons:
(a) As noted above,44 an increase in price is not entirely prohibited by the HBC Act or the construction contract.
(b) I do not consider the terms of the bricklayer and design cost variations were themselves suggestive of being intended to be a rise-and-fall clause or varying the construction contract to include a rise-and-fall clause or to become a cost plus contract.
(c) Ms Wang did not lodge or allude to any evidence which I consider suggestive of the bricklayer and design cost variations being in breach of s 13 or s 14 of the HBC Act.
(d) Even if the bricklayer and design cost variations were in breach of s 13 or s 14 of the HBC Act, I am not satisfied this was likely to constitute a disciplinary matter:
(i) the existence of a disciplinary matter is separate to there having been a breach of the Act;
(ii) a conviction for breach of the HBA Act appears unlikely because the 3 year time limit for prosecution expired in relation to the bricklayer variation on 25 February 2025 and will expire in relation to the design cost variation on 21 April 2025;45
(iii) the material lodged by Ms Wang does not satisfy me there is any reasonable likelihood of the Commissioner forming the view Intrinsic had acted in a manner which was fraudulent or harsh, unconscionable, oppressive, misleading or deceptive in the context of s 53(1)(i) or s 53(1)(j) of the BSR Act.
Would a substantial injustice occur?
68
At paragraph [54] above, I found there was not sufficient doubt regarding the correctness of the Commissioner’s decision in relation to the home indemnity insurance to justify a grant of leave.
44 At [58] – [59].
45 BSR Act, s 53(1)(a)(i); HBC Act, s 31(3).
[2025] WASAT 29
Page 21
69
Even if there were sufficient doubt, I am not satisfied a substantial injustice would occur if the decision were not reversed because Ms Wang did not in her application or submissions specify the injustice she would suffer, beyond the general claim that a denial of her application would harm her basic rights and interests.46
My decision regarding the first issue
70
I have found the Commissioner’s decision was neither wrong nor sufficiently doubtful as to justify the grant of leave.
71
I have found even if the decision regarding insurance were attended by sufficient doubt, there is no reason to believe a substantial injustice would occur if the decision were not reversed.
72
Therefore, in my view, leave to review should not be granted. This finding means it is not necessary to consider the second issue, which would have been to consider the correct and preferable decision in relation to the acceptance or refusal of the disciplinary complaint lodged with the Commissioner on 13 January 2024.
Conclusion
73
For the reasons described, the Tribunal has determined in the exercise of its discretion pursuant to s 57(2) of the Act, not to grant leave to Ms Wang to seek a review of the decision of the Building Commissioner to refuse to accept her disciplinary complaint against Intrinsic.
Orders
74
Accordingly, the Tribunal orders as follows:
The Tribunal orders:
1.
The applicant’s application for leave, pursuant to s 57(2) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), to review the decision of the Building Commissioner made on 4 September 2024 to refuse to accept disciplinary complaint B2024-121 is refused.
2.
The proceeding is hereby dismissed.
46 ASIFC at para 38.
[2025] WASAT 29
Page 22
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS N Oldfield, MEMBER
9 APRIL 2025
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