Building service and home building work contract complaints
As part of its function, Building and Energy provides an avenue for both consumers and builders to resolve disputes relating to the carrying out of regulated building services and home building work contracts. These services are provided to parties as an alternative to the commencement of court proceedings.
Regulated building services include:
- any building service carried out by a registered building service provider (including builders, surveyors and painters) or approved owner builder;
- home building work carried out under a contract for gain or reward (excluding work performed under a sub-contract arrangement); and
- unauthorised work (being work that was performed in the absence of a building permit when one was required).
Building and Energy remains impartial when dealing with a building service or home building work contract complaint, with decisions being made having regard to the evidence presented by the parties.
Please ensure you read each section before proceeding to the next.
1. General information
Who can make a complaint?
A complaint under the Building Services (Complaint Resolution and Administration) Act 2011 can be made by any person who is adversely affected by the carrying out of regulated building services.
A complaint may be made to the Building Commissioner by:
- a person whose interests are being or have been adversely affected by the carrying out of a regulated building service (i.e. the owner of the work or an affected third party); or
- an owner or builder under a contract for home building work valued between $7,500 and $500,000.
Not only may a person who has directly contracted a building service lodge a complaint, but also any person adversely affected by that building service. This can include a neighbour whose property has been damaged as a result of unsatisfactory building services or some other third party.
** Please note: The Building Commissioner, does not have jurisdiction to accept or continue with complaints where the parties are individuals and one resides or comes to reside in a state other than Western Australia. Affected persons may wish to seek legal advice on their ability to pursue this through the Courts.
Time limits for making a complaint
There are time limits for lodging complaints with the Building Commissioner. In general, a complaint cannot be considered more than six years after completion of the work.
You should consider the following when ascertaining the completion date of a regulated building service:
- If the work was done under a permit and the person responsible for the work ceases their responsibility under the permit, the work is completed when the notice of cessation is given.
- If not the above, the work is completed when the notice of completion is given.
- If the work is not carried out under a permit, then the work is completed on the date that practical completion is achieved.
For specific home building work contract matters (contract variations, breach of contract, termination payments) the time limit for making a complaint is generally three years from when the contract was entered into or from when the cause of dispute arose.
Before initiating a complaint with Building and Energy, read the important information provided in the Building complaint resolution guide. Complete the Notice of proposed complaint and provide it to the party against who the complaint is going to be made at least 14 days before submitting a formal complaint to the Building Commissioner.
If a satisfactory response to your notice of proposed complaint is not received, complete the Building complaint form and lodge it with Building and Energy together with copies of relevant documents and the complaint fee.
When preparing your complaint form, detailed information is required to enable proper investigation of the complaint. The Building Commissioner may, in writing, require a person making a complaint provide further details about the complaint. Where these details are not provided within a reasonable time, the Building Commissioner may refuse to accept a complaint.
Payments can be made by cheque, credit card, EFTPOS or cash (in person).
2. Complaint resolution process
Building complaint resolution guide: A guide for consumers
A guide to the steps involved in making a complaint about a building service or home building work.
Each complaint is unique and a solution to one complaint is not necessarily suitable for another. This is why there is a range of ways to resolve your complaint under the Building Services (Complaint Resolution and Administration) Act 2011.
This variety of dispute resolution techniques is intended to prevent relatively low cost disputes from proceeding to court.
Once accepted by the Building Commissioner, your complaint may be dealt with through any number of the following ways:
Building remedy order for rectification and/or payment
The Building Commissioner may issue a building remedy order if satisfied the regulated building service subject to the complaint has not been carried out in a proper or proficient manner or is faulty or unsatisfactory.
A building remedy order may require a person who carried out the regulated building service to:
- remedy the work;
- pay costs associated with having someone else remedy the work; or
- pay reasonable compensation.
The Building Commissioner cannot issue orders for work or payments valued over $100,000 without the consent of the parties. The State Administrative Tribunal (SAT) cannot order work or payments of more than $500,000 against an unregistered person. There is no limit to work or payments the SAT can order against a registered building service provider. If you think the remedy you are seeking is in excess of these limits, you may need to take your complaint through the relevant court rather than this building complaints resolution process.
Home building work contract remedy order for rectification and/or payment.
A home building work contract remedy order can be issued by the Building Commissioner if satisfied that the order is justified.
A home building work contract remedy order may consist of, but is not limited to, an order:
- to stop an action in breach of the contract, or require work to be done;
- to pay an amount payable under the contract;
- requiring specified work to be done;
- that an amount is not payable under the contract, or if already paid, an order to repay the amount;
- for compensation for loss or damage; or
- declaring that an amount of money claimed for work done is not payable.
Referral to the SAT
Complex or intractable disputes are referred to the SAT for determination. If your complaint is referred to the SAT, both you and the respondent will receive written notification of the decision. The complaint will then be dealt with by the SAT.
- communicate with the parties;
- arrange and facilitate proceedings about the complaint; and
- give advice and make recommendations to assist in reaching an agreement.
If the parties can agree to an outcome, the Building Commissioner can make an order to give effect to the agreement. If the parties do not agree to an outcome, your complaint will be referred back to the Building Commissioner for further consideration.
The Guide to conciliation proceedings publication can help in understanding what is required.
If your complaint cannot be substantiated the complaint may be dismissed. Should the decision be made for the dismissal of your complaint, the Act does not make provision for this decision to be reviewed.
In some cases, if there is a risk of significant loss or damage occurring, the Building Commissioner can make an interim building service order to stop work or take other action before a final decision is made.
Withdrawal of a complaint
A building service complaint or a home building work contract complaint, or parts thereof, may be withdrawn by the complainant at any time throughout the complaint process unless the complaint has been referred to the State Administrative Tribunal (SAT).
3. Provision of evidence
When dealing with building disputes relating to regulated building services, the onus is on the parties to provide sufficient evidence to substantiate their respective positions. Depending on the complexity and nature of the issue evidence in the form of photographs or a report from a building expert may be required. The Guide to the provision of evidence to support a building work complaint publication can help in understanding what is required.
Guide to the provision of evidence to support a building work complaint
A guide to providing evidence to support a complaint about a building service or home building work
The Inspection of buildings: guidelines for building complaint reports publication is intended to provide information and direction to private building inspectors when preparing reports that are likely to be used in a complaint process, so that the reports are presented in a consistent format and enable a speedy resolution of their client's complaints.
Inspection of buildings: guidelines for building complaint reports
Information and direction for private building inspectors when preparing reports that are likely to be used in a complaint process
4. Notice of proposed complaint
Notice of proposed complaint
A sample Notice of Proposed Complaint for your use.
5. Complaint form
For information on how to complete the complaint schedule of the form, download the Example complaint schedule.
Please read the Guide to the provision of evidence to support a building work complaint for information about what evidence may be required to support your complaint. The Inspection of buildings: guidelines for building complaint reports is available for private building inspectors when preparing reports that are likely to be used in a complaint process.
6. Previous reasons for decisions
Viewing previous reasons for decision may assist parties to a building dispute prepare their case. Previous decisions of the State Administrative Tribunal (SAT) and the Building Disputes Tribunal are available on the AustLII website.
7. Review of decisions
Parties to a dispute who are aggrieved by a decision of the Building Commissioner to refuse to accept a complaint, may apply to the State Administrative Tribunal (SAT) for leave to have that decision reviewed.
Likewise any person aggrieved by an order issued by the Building Commissioner may apply to the SAT for a review of that order.
An application to the SAT must be made within 28 days from the date of issue of the Building Commissioner's order or decision.
If you have any queries about the appeal process, contact the SAT or seek independent advice from a legal practitioner.
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