ADCOCK and MOSMAN BAY CONSTRUCTION PTY LTD
[2021] WASAT 98
•29 JULY 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION: ADCOCK and MOSMAN BAY CONSTRUCTION PTY LTD [2021] WASAT 98
MEMBER: MS KY LOH, MEMBER
MS S CHURN, SESSIONAL MEMBER
HEARD: 9 AND 10 MARCH 2021
DELIVERED : 29 JULY 2021
FILE NO/S: CC 1274 of 2020
BETWEEN: TONY ADCOCK
First Applicant
FIONA KNOBEL
Second Applicant
AND
MOSMAN BAY CONSTRUCTION PTY LTD
Respondent
Catchwords:
Building services complaint - Cracks and other damage to neighbouring residence due to vibration from compacting works - Entitlement of neighbours to make building service complaint - Costs
Legislation:
Building Act 2011 (WA), s 19(3), s 20(c)
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(1), s 5(2), s 5(5), s 36(1), s 36(1)(a), s 36(1)(b), s 36(1)(c), s 38(1)(a), s 38(1)(b), s 38(2), s 38(2)(b), s 38(3)
Building Services (Complaint Resolution and Administration) Bill 2010 (WA)
Building services (Complaint Resolution and Administration) Regulations 2011 (WA), reg 5
Building Services (Registration) Act 2011 (WA), s 3, s 11
Building Services (Registration) Regulations 2011 (WA), reg 3, reg 13
State Administrative Tribunal 2004 (WA), s 9, s 63(1), s 63(2)
Result:
Application granted in part
Category: B
Representation:
Counsel:
| First Applicant | : | In Person |
| Second Applicant | : | In Person |
| Respondent | : | Non-Appearance |
Solicitors:
| First Applicant | : | N/A |
| Second Applicant | : | N/A |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32; (2016) 213 LGERA 81
Wolfenden and Mandurah Homes Pty Ltd [2020] WASAT 127 (S)
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The owners of a house at No 10 Garden Street Swanbourne (No 10), Mr Tony Adcock and Ms Fiona Knobel (owners), claim compensation for damage to their house caused during compacting works undertaken by the builder, Mosman Bay Constructions Pty Ltd, during the construction of their neighbour's house at No 12 Garden Street Swanbourne (No 12).
Indeed, the vibration from the compacting works were so intense that neighbours across the road experienced their whole house shaking and windows rattling. The owners' son likened the experience to an earthquake.
The engineering expert identified limestone at No 10 and No 12, and that vibration of soil through earthmoving equipment at No 12 could cause vibration to surrounding houses that are founded on the limestone.
The owners also claim for damage to their wall and gate at the front of their house when the builder's director reversed a bulldozer into the wall and gate.
For reasons set out below, we are satisfied that the builder has failed to carry out its construction work in a proper or proficient manner or was faulty or unsatisfactory. We will issue a building remedy order requiring the builder to pay the owners a sum of money, to be determined following receipt of a revised quote from the owners, to compensate for that failure.
Issue for determination
The primary issue for determination is whether the builder carried out a regulated building service in a proper or proficient manner or is faulty or unsatisfactory.
In considering the primary issue, the following secondary issues arise:
1)Are the owners entitled to make a building services complaint against the builder?
2)Is the builder a registered building services provider, or alternatively, does the compensation sought by the owners fall within the prescribed amount?
3)Did the compacting works or site works constitute 'regulated building service'?
4)Did the compacting works or site works cause the cracks and other damage to the owners' property?
5)Were those works carried out in a proper or proficient manner or were faulty or unsatisfactory?
6)What sum of money can compensate the owners for the failure under Issue 5?
Background
Tribunal proceedings
The builder was not present at the final hearing of this matter, despite having been notified of the hearing in accordance with s 63(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
In accordance with s 63(2) of the SAT Act, the hearing was held in the absence of the builder.
Further, whilst programming orders were made requiring the builder to respond to the owners' Scott Schedule particularising damage caused by the builder's works, the builder did not comply with those orders.
Indeed, the only written communication received by the Tribunal from the builder was an email from its director, Mr Dave Walling, after the hearing had concluded, which did not provide any reason for failing to attend the hearing. Nor did the builder seek an adjournment of the hearing at any time prior to the hearing. As a matter of fairness, the owners and witnesses have not had the opportunity to respond to Mr Walling's email, and it is simply too late for the builder to be presenting any evidence or submissions after having failed to appear at the hearing. For these reasons, we decline to accept any late evidence or submissions presented in Mr Walling's email.
The evidence which we will refer to in the determination of this application is documentary evidence filed by the owners, as well as oral testimony given at the hearing.
Finally, Mr Walling has asserted in email correspondence exchanged during the Building Commissioner's investigation into the complaint that the builder became insolvent sometime after the owners complained to the builder about the damage to their residence.
The company extract obtained by the Building Commissioner at the time of lodgement of the complaint indicates that the builder was still a registered Australian proprietary company at that time. In the absence of evidence to the contrary, we find that the builder remains an entity against which a complaint may be made under the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BuildingServices Act).
Owners' case
The owners claim that their house has been damaged due to:
a)Mr Walling reversing a bulldozer through their garden wall demolishing the walls and iron gates and security system, resulting in:
i)two garden walls rebuilt in a poor finished state (Item 1);
ii)metal gates and fencing which were not painted to match, and the gate frame was not set properly (Item 2); and
iii)the repaired Solarvac intercom system failing to work after a few days (Item 3);
b)the excessive vibration on the limestone bedrock under No 10 and No 12 and the use of earthmoving plant and compactors by the builder, resulting in:
i)cracks to the western boundary wall pier (Item 5);
ii)detached brickwork and crack on external eastern wall (Item 6);
iii)subsidence of eastern paving slab and disconnection of a downpipe at base (Item 7);
iv)buckling of laundry sliding door which no longer slides to close (Item 8);
v)general cracking in internal walls and ceiling joints in kitchen, lounge, upstairs bedrooms and family room which increased between dilapidation reports or new cracks identified in 2020 dilapidation report (Item 9);
vi)opening up and widening of kitchen bench joint between two marble slabs (Item 10);
vii)uplift of pool paving (Item 11); and
viii)a crack in the external wall on eastern side of upper balcony (Item 12); and
c)earthworks removal and presence of heavy excavation equipment resulting in the front footpath feature fitted amongst concrete lifting approximately 7 centimetres from ground level (Item 13).
Evidence
The owners gave evidence at the hearing, and called the following witnesses:
a)Ms Lyndal Gordon - a neighbour who resides at No 13 Bellevue Terrace, Swanbourne (which is to the rear of No 12);
b)Mr Tom Cockle - a neighbour who resides at No 5 Garden Street;
c)Mr Newton Van Damme - a neighbour who resides at No 9 Garden Street;
d)Mr Jack Knobel - the owners' son; and
e)Mr Michael Ferritto - an engineer who provided a written expert opinion dated 16 July 2020 on the cause of the damage to the house at No 10.
The owners also rely on various documents, noteably:
a)a dilapidation report by Houspect WA of an inspection conducted at No 10 on 16 April 2019;
b)a dilapidation report by Houspect WA of an inspection conducted at No 10 on 11 February 2020;
c)photographs of the damage particularised in the owners' Scott Schedule; and
d)building permit for construction of a two storey residential dwelling at No 12, which identifies the builder as the building contractor, and includes the certificate of design compliance to which the approved building specification is attached.
Documentary evidence
Dilapidation reports
In summary, the first dilapidation report itemises the location of all cracking observed and the extent of the cracking. The purpose of the second dilapidation report is to note changes from the first dilapidation report to the second, including new cracks.
Approved building specifications
A local government must grant a building permit upon being satisfied, amongst other things, with a certificate of design compliance: s 20(c) of the Building Act 2011 (WA) (Building Act).
A certificate of design compliance for, relevantly, a building, is essentially a statement of a building surveyor that if the building is completed in accordance with the plans and specifications that are specified in the certificate, the building will comply with each applicable standard: s 19(3) of the Building Act.
The certificate of design compliance for No 12 specifies the building specifications prepared by their architect, dated April 2019.
The building specifications provide as follows at clause A2.5, which is to be read with clause A2.11 (requiring the words 'The builder shall' to be used where the imperative mood of a verb is used):
Do everything necessary to ensure safety and freedom from injury, damage and interference of all the adjacent public or private lands, properties, walls, services and all other adjacent real or personal property whatsoever and of persons at any time in the vicinity of the site.
At all times take all reasonable steps to minimise nuisance to adjacent owners, their tenants and others, including nuisance from noise, dust, debris and obstructions arising from the works.
Under clause A6.3 of the building specifications, it provides that:
The Final Certificate shall not relieve the Builder from liability for damage caused to property not on the site of the works and which is due to the negligence of the Builder in carrying out the works.
Clause A6.4 of the building specifications provides that the builder shall be responsible for activities on site.
Oral evidence
Ms Lyndal Gordon
Ms Gordon is a chartered accountant, who has lived at her property for 12 years. She was approached by the builder in 2019 for the preparation of a dilapidation report for her house prior to the commencement of the construction work.
She said that sometime during April to August 2019, there was excavation of sand at No 12, then compaction.
During the compaction phase, she said that the vibration was so intense that the whole house vibrated.
After the compaction, she noticed cracking in her limestone wall and on concrete visible in every room in her house (including her polished concrete floor), which had not been present in the dilapidation report.
A second dilapidation report was prepared, following which she became aware that the builder was experiencing trading difficulties.
Mr Tom Cockle
Mr Cockle is a forensic accountant, who lives across the road about 30 to 40 metres down the street from No 10. He moved into his house in June 2018.
He said that he observed compaction works occurring on No 12 during April to May 2019 over a number of days. His whole house vibrated and shook for the first couple of days. When his kitchen window started shaking and rattling by the third or fourth day, he went to speak to the builder's supervisor who was undertaking the compaction works.
When Mr Cockle asked why the shaking on his house was really vigorous and why it was taking so long, the supervisor stated that they could not get the site compacted and they had to bring in a larger commercial-grade compacting machine.
Mr Newton Van Damme
Mr Van Damme is an engineer who works as a delivery manager in construction management, and has experience while working in London in the demolition of existing structures.
He has lived opposite the owners since 2012.
Mr Van Damme stated that he was staggered by the way that the builder tried to gain compaction, both in terms of the duration of the compacting works and the application of industrial scale equipment. He had spoken to the builder's supervisor, who had been 'hell bent' on getting compaction.
The compaction occurred in two stages - the first stage took a few days, then the big compactor was used for two to three days.
In his view, he would have taken a step back and gone back to the engineer if there was a compaction issue.
He was also aware that there was an incident of the front wall of No 10 being knocked over in May 2019. Whilst he did not see the incident, he took photographs of the damage to the front wall at the time.
Mr Jack Knobel
Mr Knobel is an undergraduate student at the University of Western Australia, and was a student in Year 12 at the time of the compaction works.
He stated that he experienced the vibration in the house whilst he was studying for his Year 12 exams, which he described as the whole room shaking, almost like an earthquake. He said the vibration was so violent that a painting fell off the wall and shattered on the ground.
He stated that the vibration was constant for the first week or so, then multiple days in a week. He thought that the compaction occurred for at least two to three weeks, and occurred during May to September 2019.
About that same time, he was nearly impaled against the fence when the boss of the supervisor had reversed an enormous bulldozer through the side of their house. He suffered scratches and bruises.
He said that the driver had been wearing a 'moonboot' whilst driving, and had disclosed that it was his first day driving that machine and that he did not have a valid licence to drive it.
Mr Knobel said that the whole gate and brickwork was destroyed. He took some photographs of the damage.
Mr Tony Adcock and Ms Fiona Knobel
The owners primarily rely on the other witness' account of the vibration experienced during the compacting works, as well as their son's observations during the bulldozer incident.
The owners have lived at the house on No 10 for nearly 11 years.
Mr Adcock is a partner of a consulting firm, and a company director and executive director of a number of companies in the mining and engineering industries.
He stated that he observed the occurrence of new cracks or further widening of spider cracks after the compacting works commenced, for which compensation is sought.
Further, the laundry door was working before the earthworks on No 12, and now the whole metal frame has buckled.
He said that due to scheduling conflicts with the person preparing the first dilapidation report, the inspection only occurred seven to 10 days after the initial works.
Ms Knobel works as an Executive Director in the Department of Mines, Industry, Regulation and Safety.
Whilst Mr Adcock and she were overseas at the time of the bulldozer incident, they were present when the compacting works occurred.
Mr Michael Ferritto
Mr Ferritto is a civil engineer who attained his graduate degree in 1991, and commenced in 1992 working for (and continues to work at) McDowall Affleck.
Mr Ferritto did building design work (particularly residential) in his earlier years, and later did work in land development and roads and drainage works, all of which involved investigating soil conditions in the hills of Perth.
In particular, whilst working for the Town of Cottesloe, his firm had encountered a residential complaint about vibration from vibratory rollers used in roadworks a few kilometres from a residence. They identified that the residence was above a limestone pinnacle through which the vibration had travelled. The Town of Cottesloe has since changed its methodology to use static rolling.
Mr Ferritto identified from an extract of the Geological Survey Maps of Perth soil surveys that both No 10 and No 12 are situated on sandy sites with underlying limestone.
Limestone areas have pinnacles that stick up above the main limestone bedrock. Where a limestone pinnacle is subject to vibration, it can cause significant vibration of the limestone bedrock. This in turn can cause vibration of surrounding houses that are partially or fully founded on the limestone.
By reference to aerial photographs during 2 May 2019 to 2 March 2020, roughly coinciding with the period between the two dilapidation reports, it was apparent to Mr Ferritto that significant excavation and earthworks were undertaken at No 12 as the garage and pool were constructed, which would have involved the use of excavators, compactors, and other earthmoving plant. Such equipment could cause vibration of the soils, especially if vibratory rollers or compactors were used rather than static rollers to achieve adequate soil compaction for the foundations of the residence.
It appeared to Mr Ferritto that the earthworks undertaken at No 12 have caused vibration that has damaged the residence at No 10.
As to the general cracking observed in the dilapidation reports, Mr Ferritto considered that the cracks generally less than 1 millimetre wide around opening and cornices were typical of most houses of that age and construction type and developed due to minor settlement and differential movement of the building.
However, as to the new cracks that were not present at the time of the first dilapidation report and the cracks that changed noticeably in size and extent since the first dilapidation report, Mr Ferritto considered that these changes are very unlikely to be attributable to general wear and tear due to the short time frame between the two reports.
As to the cracking at the western boundary wall pier, Mr Ferritto concludes that it appears to be due to an impact as it is larger and more extensive than would typically be caused by vibration or general wear and tear.
As to the subsidence at the eastern paving slab, Mr Ferritto concludes that it may be due to the vibration on the neighbouring property causing consolidation of the ground below the slab if it was not well compacted before the slab was constructed. He considers that the slab appears to be in fair condition and does not require any repairs, although the gap between the slab and the walls should be filled to prevent water ingress that may cause further damage to the slab.
As to the sliding door, Mr Ferritto considers the damage is likely to have been caused by the differential movement of the wall above and the foundation below the door compressing the door panel, which differential movement may have been caused by the vibration from the earthworks at No 12.
Mr Ferritto makes no comment on the claim for the damage to the kitchen bench joint between two marble slabs and the uplift of the pool paving.
Mr Ferritto was not aware of the owners' contention that the earthworks commenced prior to the inspection for the first dilapidation report, but accepts that the aerial photos may not show that compaction works had been commenced.
When asked whether a person experiencing difficulty with the compaction work should have deferred back to the builder or engineer, Mr Ferritto stated that he would have hoped that any complaint about vibration by a neighbour would be brought up with the builder.
Legislative framework
Complainants of building services complaint
Under s 5(1) of the Building Services Act, a person may make a complaint about a regulated building service not being carried out in a proper and proficient manner or being faulty or unsatisfactory.
Regulation 5 of the Building Services (Complaint Resolution and Administration) Regulations 2011 (WA), made pursuant to s 5(5) of the Building Services Act, qualifies that only a person whose interests are being, or have been, adversely affected by the carrying out of the regulated building service may make a building service complaint.
This can be contrasted with complainants of home building work contract complaints, which are restricted to owners or builders under a home building work contract under s 5(2) of the Building Services Act.
The wider field of complainants of a building services complaint reflects the legislature's intention to allow 'not only a consumer of a building service to make a complaint, but also any person adversely affected, such as a neighbour': Explanatory Memorandum to the Building Services (Complaint Resolution and Administration) Bill 2010 (WA) (page 10).
In the Macquarie Dictionary Online (as at 29 July 2021), the word 'interest' relevantly includes:
…
6. a share in the ownership of property, in a commercial or financial undertaking, or the like
7.any right of ownership in property, commercial undertakings, etc.[.]
Building Remedy Order (BRO)
Under s 38(1)(a) of the Building Services Act, the Tribunal can make a BRO if satisfied that the regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory.
If not so satisfied, the Tribunal may decline to make a BRO: s 38(1)(b) of the Building Services Act.
A BRO is an order which compels a person who carried out the regulated building service to remedy the building service (s 36(1)(a)), or pay for costs of remedying the building service (s 36(1)(b)) or compensation (s 36(1)(c)): s 36(1) of the Building Services Act.
In this case, the owners are not seeking a BRO to remedy the building service order, but are seeking compensation under s 36(1)(c) to be paid a sum of money to compensate them for the failure to carry out the building service in a proper and proficient manner or for faulty or unsatisfactory building service.
'Regulated building service'
'Regulated building service' is relevantly defined under s 3 of the Building Services Act as 'a building service carried out by a registered building service provider or an approved owner-builder'.
In turn, under s 3 of the Building Services Act:
•'building service' is relevantly defined as 'building work (as defined in the [Building Act] section 3)'; and
•'registered building service provider' is defined as 'ha[ving] the meaning given in the Building Services (Registration) Act 2011 (WA) [Building Registration Act] section 3'.
'Building work' is relevantly defined in s 3 of the Building Act as 'the construction, erection, assembly or placement of a building'.
'Registered building service provider' is defined in s 3 of the Building Registration Act as either a 'building service practitioner' or a 'building service contractor'.
Under s 11 of the Building Registration Act, only building service contractors are entitled to carry out a 'prescribed building service', which is relevantly prescribed in the Building Services (Registration) Regulations 2011 (WA) (Building Registration Regulations) to include 'builder work as a principal builder'.
In turn, relevantly, under the Building Registration Regulations:
•'builder work' means, under reg 13, building work:
a)for which a building permit is required; and
b)with a value of $20,000 or more based on the value of the work estimated under Schedule 2; and
c)carried out in an area of the State set out in Schedule 3;
d)but does not include certain types of building work (which are not applicable to these proceedings).
•'principal builder' is defined under reg 3 as a person who carries out, or undertakes to carry out, the builder work for another person.
Unregistered building services provider
Under s 38(2) of the Building Services Act, a BRO cannot be made against an unregistered building services provider, although this impediment does not relevantly apply if the amount ordered under the BRO does not exceed the prescribed amount: s 38(2)(b) of the Building Services Act.
The prescribed amount has not been prescribed by regulations, and is set at $500,000 pursuant to s 38(3) of the Building Services Act.
Service not carried out in a 'proper' and 'proficient' manner or is 'faulty or unsatisfactory'
In the Macquarie Dictionary Online (as at 29 July 2021), the following terms carry the following meanings:
•'proper' is relevantly defined as '… 2. conforming to established standards of behaviour or manners; correct or decorous';
•'proficient' is relevantly defined as '… 1. well advanced or expert in any art, science, or subject; skilled';
•'faulty' is relevantly defined as '… 1. having faults or defects'; and
•'unsatisfactory' is defined as '… not satisfactory; not satisfying specified desires or requirements; inadequate'.
Issue 1 - are the owners entitled to make a building services complaint against the builder?
In this case, the owners allege that their interests in their own property (No 10) is adversely affected by the carrying out by the builder of the regulated building service. As such, they are entitled to make a building services complaint against the builder for damage caused by the regulated building service.
In our view, it matters not that the builder was not directly carrying out the building service on No 10, as the field of complainants are not expressly confined to the homeowner (unlike for home building work contract complaints).
Issue 2 - is the builder a registered building services provider, or alternatively, does the compensation sought by the owners fall within the prescribed amount?
The building permit issued by the Town of Claremont clearly identifies the builder as a registered building contractor for the construction of a two storey residential dwelling at No 12 with an estimated value of $2,598,260 for the building work.
We are satisfied that the builder was a 'building service contractor' as a principal builder, and as such, a 'registered building services provider' at the time of the compacting works and site works.
There is no express assertion by Mr Walling that the builder ceased to be a registered building services provider at the time it became insolvent. To the extent that it can be implied it also ceased to be a registered building services provider, for reasons set out in [83]-[84], there is no impediment to a compensatory BRO being made against the builder as the compensation sought by the owners is less than the prescribed amount of $500,000.
Issue 3 - Did the compacting and site works constitute 'regulated building service'?
Whilst there was some variance in the oral evidence in respect of the date and duration of the compacting works, we are satisfied that each witness was giving honest evidence to the best of his or her recollection of events that occurred nearly two years ago. We find that the compacting works occurred over the course of at least a few days (and likely in two tranches) over a period sometime in April to September 2019.
We are also satisfied based on the evidence of Messrs Knobel and Van Damme that the site works involving the bulldozer occurred sometime in May 2019 in the manner described by the former.
We also find that that the compacting works and the site works fall within the definition of building work as part of the construction of the residential dwelling at No 12, and thus fall within the meaning of 'building service' under s 3 of the Building Services Act.
Having been satisfied at [89] that the builder was a registered building services provider at the time of carrying out the building work, we find that that the works constituted 'regulated building services'.
Issue 4 - did the compacting or site works cause damage to the owners' property?
We accept the evidence of Mr Knobel, that, in carrying out site works using a bulldozer, Mr Walling caused damage to the owners' walls, iron gates and security system when the latter accidentally reversed a bulldozer through the front garden wall.
We also accept the evidence of the owners' witnesses, in particular, Ms Gordon and Messrs Cockle and Knobel, as to the severity of the vibration felt at their respective houses during the compaction works carried out by the builder.
We find, on the basis of Mr Ferritto's expert evidence, that the compaction works over underlying limestone at No 12 have caused the 'earthquake'-like vibration to No 10.
In particular, based on Mr Ferritto's opinion, we find that the following damage to No 10 are attributable to the builder's compaction works:
a)the crack at the external eastern wall;
b)the subsidence at the eastern paving slab;
c)the damage to the laundry sliding door;
d)the cracks to the owners' house that changed noticeably in size and extent since the first dilapidation report and those that were not present at the time of the first dilapidation report; and
e)the crack in external wall on eastern side of upper balcony.
However, based on Mr Ferritto's opinion, we are not satisfied that the compaction works caused the damage to the cracking at the western boundary wall pier.
As to the damage to the kitchen bench and the uplift of the pool paving, we accept the evidence of the owners that prior to the compaction works, there had been no issues with these items, with the only logical inference that the compaction works have caused the damage.
We also accept the owners' evidence that the earthworks removal and presence of excavation equipment have caused uplift damage to the front footpath feature.
Issue 5 - Were those works carried out in a proper or proficient manner or was faulty or unsatisfactory?
As to the siteworks during which Mr Walling reversed into the front garden wall, that was clearly not works carried out in a proper or proficient manner, or was otherwise faulty or unsatisfactory. By Mr Walling's own admission to Mr Knobel, the former did not have the appropriate licence to drive that bulldozer, and indeed had been driving in a compromised fashion with a 'moonboot'.
As to the compaction works, the building supervisor's dogged attempts at achieving compaction despite complaint from a resident 40 metres away about 'vigorous' vibration, indicate works carried out with a lack of proficiency expected of a builder, and is unsatisfactory.
At the very least, further expert advice should have been sought by the building supervisor as to the difficulties experienced with the compaction and its effect on neighbouring properties.
The siteworks which caused uplift damage to the front footpath does not constitute, in our view, works which were carried out in a proficient manner and was unsatisfactory.
Finally, the builder's works have failed to comply with the building specifications requiring the builder to ensure safety and freedom from damage and interference of adjacent private lands and real property, and is thus work not carried out in a proper manner.
We note that the Building and Energy Inspector (inspector) essentially formed a different view to that expressed above in [102][106], despite having received the expert report of Mr Ferritto and carrying out a site inspection. It has not been possible to interrogate the inspector as to his or her views with the fullness and completeness afforded at a hearing. We are satisfied that the evidence adduced by the owners sufficiently establishes the basis for the making of a BRO, and we have not had regard to the inspector's views.
Issue 6 - What sum of money can compensate the owners for the failure under Issue 5?
In respect of the damage caused by the bulldozer, we accept the owners' evidence that, despite some reparation works being carried out, their walls, gates and fencing remain in a poor finished state (indeed the gate frame requires replacement as it was not set properly). The owners should be compensated for the costs of repair or replacement to an adequate finish.
Further, the repaired intercom system ceased working. The difference between the cost of repair and replacement of the intercom system is minor, and so the BRO will account for the replacement of the intercom system.
Whilst we accept the owners' quote in respect of the damage caused by vibration through the compaction work, the quote has not been prepared by reference to each item in the Scott Schedule. As the damage to the western boundary wall pier needs to be deducted from the quote, we will order the owners to submit a further quote which excludes the cost of repair to the western boundary wall pier.
We accept the owners' submission that the laundry door frame and sliding door will need to be replaced.
The owners were also able to obtain a quote to repair the kitchen benchtop, and so the BRO will account for the repair, rather than replacement, costs.
In respect of the damage to the front footpath, we accept the owners' estimate of two hours' worth of work at $200.
Costs of the proceedings
The owners also claim costs of the proceedings.
The principles for costs recovery have been considered by this Tribunal in a previous decision over a building dispute, and remain relevant to this costs application: Wolfenden and Mandurah Homes Pty Ltd [2020] WASAT 127 (S) (Wolfenden).
As stated in Wolfenden, the starting point under s 87(1) of the SAT Act is that each party is to bear its own costs: Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32; (2016) 213 LGERA 81 (Questdale) at [50].
It is relevant to consider whether and to what extent the builder's conduct in connection with the proceedings has impaired the attainment of the Tribunal's objectives under s 9 of the SAT Act to have the proceedings determined fairly and in accordance with the substantial merits, with as little formality and technicality as possible, and in a way which minimises the costs to the parties: Questdale at [54].
The builder has had minimal participation in this case, having failed to comply with programming orders and to attend the hearing to assist the Tribunal in its determination. This has impaired to some degree the prospect that the parties might have agreed on certain facts or opinions, thus minimising the overall costs to the parties.
On the other hand, the clear weakness of a party's case may have some bearing on the discretion to award costs: see Wolfenden at [32][33] and the authorities cited. In this case, it was necessary to hear from witnesses as to the severity of the vibration, which evidence was not before the Building Commissioner. It was also necessary to hear from Mr Ferritto to test his opinion about the effect of vibration from earthworks on sites with underlying limestone.
Taking all of this into account, we will allow an amount of fees incurred for Mr Ferritto's evidence, but not in relation to the other costs claimed.
Primary issue - conclusion
For reasons set out above, we find that the builder has carried out work which was not proper and proficient, and is faulty and unsatisfactory.
We will make a BRO that the builder pays the owners a sum of money to compensate the owners for the damage caused to their property at No 10, which sum will be fixed following submission within 28 days of a revised quote which excludes works to the western external wall pier.
Items
Description
Cost (inc GST)
1, 6-7, 9, 11-12
scaffolding, structural work, plastering, painting exterior (as damaged), painting interior downstairs (as damaged), painting interior upstairs (as damaged), waste removal
To be advised
2
gate and front fence frame replacement
$3,150.00
3
intercom replacement
$ 695.00
8
laundry door frame and sliding doors replacement
$1,953.00
10
Kitchen bench repair
$ 560.00
13
Front pathway
$ 200.00
Costs:
(a) Mr Ferrito's report
(b) Mr Ferrito's fees for attending hearing
$4,180.00
$ 866.25
TOTAL
$11,604.25 plus revised amount for items 1, 6-7, 9, 11-12
Orders
The Tribunal makes the following orders:
1.The application is granted in part.
2.Within 28 days, the applicants will file an amended quote for works which exclude the works to Item 5 of their Scott Schedule.
3.Following receipt of the amended quote, the Tribunal will determine the final sum that the respondent will pay to the applicants on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA), and will fix the amount of costs awarded.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS K Y Loh, MEMBER
29 JULY 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION: ADCOCK and MOSMAN BAY CONSTRUCTION PTY LTD [2021] WASAT 98 (S)
MEMBER: MS KY LOH, MEMBER
MS S CHURN, SESSIONAL MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 25 OCTOBER 2021
FILE NO/S: CC 1274 of 2020
BETWEEN: TONY ADCOCK
First Applicant
FIONA KNOBEL
Second Applicant
AND
MOSMAN BAY CONSTRUCTION PTY LTD
Respondent
Catchwords:
Building services complaint - Final building remedy order - Costs
Legislation:
Building Services (Complaint Resolution and Administration) Act 2011 (WA)
Result:
Application granted in part
Category: B
Representation:
Counsel:
| First Applicant | : | N/A |
| Second Applicant | : | N/A |
| Respondent | : | N/A |
Solicitors:
| First Applicant | : | N/A |
| Second Applicant | : | N/A |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Adcock and Mosman Bay Construction Pty Ltd [2021] WASAT 98
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The owners of No 10 Garden Street Swanbourne, Mr Tony Adcock and Ms Fiona Knobel (owners), seek a building remedy order (BRO) against their neighbour's builder, Mosman Bay Construction Pty Ltd, to compensate them for damage caused to their house when their neighbour's house was being constructed.
On 29 July 2021, this Tribunal made an order requiring the builder to pay a sum of money, to be determined following receipt of a revised quote from the owners: Adcock and Mosman Bay Construction Pty Ltd [2021] WASAT 98 (Adcock).
In particular, we accepted the owners' claim for compensation for damage caused by vibration through the compaction work, save for the cracking at the western boundary wall pier (Item 5 of the owners' Scott Schedule): Adcock at [98] - [99].
As the quote for vibration damage was not particularised by reference to each item in the Scott Schedule, we ordered the owners to submit an amended quote for works which exclude the works to Item 5.
Consideration
On 30 August 2021, the owners submitted an amended quote for works which was particularised by reference to each item in the Scott Schedule relating to vibration damage, save for Item 5.
We are satisfied that the amended quote now excludes works to the western external wall pier, and it is appropriate to make an order which includes the amount quantified in the amended quote.
The BRO now comprises the following amounts, based on that as set out in Adcock at [122]:
Items
Description
Costs (inc GST)
1, 6-7, 9, 11-12
scaffolding, structural work, plastering, painting exterior (as damaged), painting interior downstairs (as damaged), waste removal
$45,259.50
2
gate and front fence frame replacement
$3,150.00
3
intercom replacement
$695.00
8
laundry door frame and sliding doors replacement
$1,953.00
10
kitchen bench repair
$560.00
13
front pathway
$200.00
TOTAL:
$51,817.50
Costs:
(a) Mr Ferrito's report
(b) Mr Ferrito's fees for attending hearing
$4,180.00
$866.25
TOTAL:
$5,046.25
Orders
The Tribunal makes the following orders:
1.Pursuant to s 38 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), the Tribunal makes the following building remedy order, in accordance with s 36(1)(c):
(a)On or before 8 November 2021, the respondent must pay the applicants, by way of compensation, the sum of $51,817.50.
2.The respondent must pay the applicants' costs fixed in the sum of $5,046.25.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS K Y Loh, MEMBER
25 OCTOBER 2021
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