Carlin and the Arbitration of Home Building Work Contract Claims

The recent decision in Carlin v Southern Built Homes Pty Ltd [2025] WASAT 100 (Carlin) has been the cause of some uncertainty in the legal fraternity. Our law practice acted for the Respondent in that matter.

Since Carlin was handed down on 18 September 2025, litigants have increasingly argued that contractual disputes arising from home building work contracts cannot be resolved by private arbitration and must instead proceed exclusively under the statutory regime administered by the Building Commissioner and the State Administrative Tribunal.

That reading of Carlin is wrong.

The confusion stems from an overstatement of what the Tribunal actually decided. In our view, Carlin does not create a rule whereby the Building Commissioner or the State Administrative Tribunal has exclusive jurisdiction over all home building contract disputes nor does it stand for the proposition that a respondent may opt out of an arbitration agreement and compel a claimant to prosecute its dispute in the statutory forum

To understand the case properly, one must return to first principles.

Sections 17 of the Home Building Contracts Act 1991 (WA) and 5(2) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) provide that an owner or builder may make a complaint. The word ‘may’ is permissive. It does not cause the Building Commissioner and the State Administrative Tribunal to have exclusive jurisdiction of such disputes, and it does not abolish common law rights. It does not mandate that every contractual dispute be determined under the statutory regime. The statutory scheme creates an additional forum and remedial pathway. It does not extinguish contractual causes of action.

What, then, did Carlin decide?

Carlin concerned a situation where the owners had already exercised their statutory right by lodging a complaint under s 5(2). The builder sought to rely on clause 18 to stay the Tribunal proceedings and refer the matter to arbitration. The Tribunal held that the arbitration clause did not operate to displace a complaint that had already been commenced. In that context, the Tribunal preserved the complainant’s statutory election.

Properly understood, Carlin stands for a narrow proposition: If a party has already exercised its statutory right to invoke the HBWC complaint regime, the arbitration agreement cannot be used to remove that dispute from the statutory forum.

It does not stand for the broader and far more radical proposition that all disputes capable of constituting a HBWC complaint must be determined under the statutory regime. It does not abolish arbitration in the home building context. It does not render clause 18 null and void in all cases. It does not give a respondent a unilateral right to dictate a forum of dispute.

Arbitration remains available unless and until a complaint under s 5(2) is made. If a statutory complaint is made first, arbitration cannot proceed. If arbitration is commenced first, and no statutory complaint is made, the arbitration clause operates according to its terms

That interpretation avoids the commercially perverse outcome that any dispute merely capable of being framed as a HBWC complaint automatically falls outside arbitration, even where neither party has invoked the statutory regime. It preserves a complainant’s statutory election. It does not invalidate arbitration agreements in home building contracts.

The law remains as it was before Carlin: statutory remedies coexist with contractual rights.