Posted: 2024-08-23 08:39:24

Embattled Perth building company Nicheliving can continue to operate, after it had a win at WA's State Administrative Tribunal (SAT) on Friday.

The company had challenged the Building Services Board's decision to not renew its registration late last month, with the board saying it wasn't satisfied the company met the financial requirements for registration.

Nicheliving was seeking a stay order to allow it to keep building before a SAT review to regain its registration.

The ruling to grant the stay potentially has an immediate impact on customers who have been waiting to get their homes completed.

The SAT had heard more than 200 homes are yet to be finished.

Office building entrance with sign saying Niche Living and glass doors

Nicheliving has failed to finish more than 200 homes for customers.  ( ABC News: Emma Wynne )

At a hearing on the stay application this week, counsel for the Building Services Board and the Attorney General had argued against granting it, saying customers needed access to home indemnity insurance funds to enable them get their homes completed.

But the tribunal's President Kathleen Glancy said the stay had been granted.

She said Nicheliving's financial position "may be significantly adversely impacted by the refusal of a stay".

She said that while the tribunal could not say the Building Services Board's decision was "palpably wrong", the applicant "may have a case that it was wrong".

President Glancy also said the tribunal did not overlook the distress felt by customers who were waiting for their homes to be finished, and described this as a "most compelling argument".

Yet she said the tribunal believed there would be further "confusion and uncertainty" if a stay was not granted.

'Still a long road'

A full hearing in the SAT is likely in November.

Nicheliving customer Peter Symons said he was one of those who would not be able to access the insurance in the short term.

"It's disappointing for a lot of people who don't know where they stand, particularly with QBE and the insurance, but I think we just have to be patient," he said.

A man stands outside a building being spoken to by a reporter.

The decision means Nicheliving customer Peter Symons won't be able to access insurance money. (ABC News: David Weber )

"Nicheliving are going to have to prove that they are fit and solvent to be able to deal with their jobs.

"For me that's still a long road to travel on."

Vogt Legal is representing 16 Nicheliving customers, and company lawyer Ben Sasson said the ruling left customers in a tough position.

"They're in a similar position to where they were at the start of the stay application, they're in, I guess, limbo would be the best way to describe it," he said.

A man in a suit with a beard talks to a person with long hair on a city street.

Ben Sasson says the decision has left customers in limbo. (ABC News: David Weber)

"They're being left without much guidance from the Building Services Board or the insurer QBE.

"They're being told one thing one day and another thing the next."

Finances laid bare

The tribunal heard this week from Jodie Guppy, a manager of financial investigations and analysis for Building and Energy, who completed a report for the Building Services Board.

Ms Guppy found Nicheliving had nearly $44.2 million in assets and $76.2 million in debts and loans.

A woman with long dark hair walks along a street with a bag strap over her shoulder.

Jodie Guppy prepared a report on the company's finances.  (ABC News: David Weber)

There was also an "unresolved" tax bill of more than $7 million.

Martin Cuerden SC, representing Nicheliving, asked why contract assets worth $43 million hadn't been considered, including the value of sales, strata lots off the plan, and lots being developed.

Ms Guppy replied "you don't generally bring in contract assets".

Ms Guppy said she was considering what assets could be liquidated for cash flow.

She told the SAT the cost of work priced in 2020 had increased considerably.

"To deliver in today's money is 32 per cent more," she said.

Mr Cuerden had told the tribunal the majority of contracts Nicheliving had entered into had been completed, particularly those from 2022 and 2023.

A man wearing a suit and glasses leaves a building through sliding glass doors.

Martin Cuerden SC represented Nicheliving.  (ABC News: David Weber)

He had said it was not true that Nicheliving had "historically completed projects at a slow pace".

He told the tribunal the issue was the 2020 contracts, and "to a lesser extent", 2019.

The tribunal's president said Nicheliving had undertaken not to take on any new contracts.

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