Building complaints in WA: how the Building Commission process works
Defective work, a dispute over variations, or a builder who won’t finish the job: for many building disputes in Western Australia, the Building Commission complaint process offers an alternative to going to court. Here’s how it works, and how to make the most of it.
Two types of complaint
Under the Building Services (Complaint Resolution and Administration) Act 2011 (WA), there are two main types of complaint that can be made to the Building Commission, and potentially referred to the State Administrative Tribunal.
1. Defective workmanship (building remedy complaints)
A building remedy complaint can be made where a regulated building service was not carried out in a proper and proficient manner, or is faulty or unsatisfactory. Typical examples include:
cracking, leaks and water ingress
poor quality finishes, tiling or brickwork
work that doesn’t comply with the plans, specifications or building standards.
Complaints can be made about work by registered building service providers (such as builders, building surveyors and painters), approved owner-builders, and unauthorised building work. The owner, or anyone else adversely affected, such as a neighbour, can complain.
If the complaint is made out, the Building Commissioner can make a building remedy order, requiring the builder to fix the work, pay the cost of someone else fixing it, or pay compensation.
2. Breach of a home building work contract
A home building work contract complaint can be made by either the owner or the builder, where there is a dispute under a contract for home building work valued between $7,500 and $500,000. Common disputes include:
unpaid progress payments, or payment claims made before the relevant stage is complete
variations and price increases
extension of time claims and delay
suspension of the works
termination of the contract.
These complaints draw on the protections in the Home Building Contracts Act 1991 (WA) as well as the terms of the contract itself. The Building Commissioner can make a home building work contract remedy order, for example requiring payment of an amount owed, declaring an amount is not payable, ordering the return of money, requiring specified work to be done, or awarding compensation.
The two types of complaint can overlap. For example, an owner may withhold payment because of defects, and the builder may complain about non-payment. In that situation, both sides may lodge complaints.
Watch the time limits
Building remedy complaints: generally within six years of completion of the work.
Home building contract complaints: generally within three years of the contract date or when the dispute arose.
Don’t wait - late complaints are usually not accepted.
Where remedial work has been carried out a 6-year time period runs from completion of the remedial work.
The process step by step
1. Give a notice of proposed complaint
At least 14 days before lodging a complaint, you must give the other party a Notice of Proposed Complaint. The Building & Energy website provides a template notice, but provided the notice is in writing that is fine. Keep a copy as proof.
This notice gives the other party a chance to fix the problem or resolve the dispute before the Building Commission becomes involved. Some disputes can be resolved at this early stage.
2. Gather your evidence
The onus is on the parties to prove their case. Photos, correspondence, the contract and, for defects, an independent building inspection report are often essential.
3. Lodge your complaint
Complaints are lodged using the approved form, either through the online complaint form (preferred) or the PDF complaint form. A fee applies. See the Building Commission’s complaint fees and forms page for the latest fees and an example complaint schedule.
4. Assessment, conciliation and investigation
The Building Commission may:
encourage or require the parties to attend conciliation
investigate the complaint, which may include an inspection
dismiss the complaint if it can’t be substantiated, or
make an interim order where there is a risk of significant loss or damage.
5. The decision
If the complaint is made out, the Building Commissioner can make a building remedy order or a home building work contract remedy order, as described above. The Commissioner generally can’t order work or payments over $100,000 without the parties’ consent. SAT can make orders against registered builders without that limit. It is often the case that the issues may be too complex, and the Building Commissioner will refer the complaint to the SAT.
The State Administrative Tribunal
The State Administrative Tribunal (SAT) plays two key roles:
Referred complaints. The Building Commissioner can refer complex disputes directly to SAT, which then hears and decides the complaint.
Reviews. A party who is unhappy with the Building Commissioner’s decision can generally apply to SAT for a review. Strict time limits apply, so get advice quickly.
SAT proceedings are more formal than the Building Commission process. They typically involve directions hearings, mediation, exchange of evidence and expert reports, and, if the matter doesn’t settle, a final hearing.
When a matter is referred to the SAT, the first step is for the SAT to hold a directions hearing. The parties are usually required to attend in person and should be in a position to explain the complaint and their position in respect of it. The usual orders that are made by the SAT include for the applicant to file their documents (including expert evidence) in support of the complaint items and for the respondent to then respond with its documents (including expert evidence). The proceeding is ordinarily referred to mediation at an early stage, which gives the parties an opportunity to settle before incurring further expert and legal costs (if applicable).
The Tribunal has a broad discretion to make costs orders in building service complaint proceedings. The governing principle in the exercise of the costs discretion is whether it is fair and reasonable in all the circumstances of the case for one party to be required to reimburse the costs of another. It is possible that you may not be successful in recovering costs that you incur in pursing or defending a proceeding in the SAT.
Enforcing orders
If a builder or owner doesn’t comply with a monetary order, it can be registered and enforced in court. An unpaid order against a registered builder may also become a “building service debt”, which can affect the builder’s registration.
Tips for owners and builders
Act early. Serve the notice of proposed complaint promptly and use the 14 days to try to resolve the dispute.
Be specific. Identify each defect or disputed item clearly, with supporting evidence. You cannot later add items of complaint if the matter is referred to the SAT. Any new items must be the subject of a further complaint to the Building Commission, which can be referred to the SAT.
Get expert evidence. For defect claims, an independent inspection report can make or break a complaint and can assist in getting an early resolution. The type of building inspection report that may be provided by an inspector at or after practical completion may not be sufficient for a complaint that comes before the SAT. You should discuss this issue with your building inspector.
Take SAT seriously. If your matter is referred or you seek a review, prepare as you would for court. Parties do not need to be legally represented in the SAT, but it can assist, particularly for more complex and higher-value matters.
How we can assist
Lang Litigation and Construction Law acts for owners and builders in Building Commission complaints and State Administrative Tribunal proceedings.
We act on matters where legal advice and representation are likely to be cost-effective for our clients. For lower-value disputes, the cost of engaging a lawyer can quickly outweigh the amount at stake, and other options, including self-representation, may be more appropriate.
This article is general information only and is not legal advice. You should seek specific advice about your circumstances.