ANDERSON and CDA BUILDERS PTY LTD
[2020] WASAT 144
•16 NOVEMBER 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION: ANDERSON and CDA BUILDERS PTY LTD [2020] WASAT 144
MEMBER: MS R PETRUCCI, MEMBER
MS S CHURN, SESSIONAL MEMBER
HEARD: 16 APRIL 2020 AND 3 SEPTEMBER 2020
DELIVERED : 16 NOVEMBER 2020
FILE NO/S: CC 32 of 2020
BETWEEN: JOHN ANDERSON
Applicant
AND
CDA BUILDERS PTY LTD
Respondent
Catchwords:
Building Services (Complaint Resolution and Administration) Act 2011 (WA) - Application under s 51(2) and s 51(3) of Building Services (Complaint Resolution and Administration) Act 2011 to revoke works order not complied with and make monetary order - Application for costs under s 49 of Building Services (Complaint Resolution and Administration) Act 2011 and s 87 of State Administrative Tribunal Act 2004 (WA) - Turns on own facts
Legislation:
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 36(1), s 36(1)(b), s 36(1)(c), s 49, s 51, s 51(2), s 51(3)
State Administrative Tribunal Act 2004 (WA), s 9
Result:
Application partly successful
Category: B
Representation:
Counsel:
| Applicant | : | Mr J Johnstone and Mr C Louw (for 16 April 2020 only) |
| Respondent | : | In Person |
Solicitors:
| Applicant | : | Johnstone Crouse Lawyers and Suffolk-Law Pty Ltd (for 16 April 2020 only) |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Anderson and CDA Builders Pty Ltd [2020] WASAT 143
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
These proceedings concern an application by Mr John Anderson (the owner) for the conversion of a works order into an order for the payment of money under the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) in respect of remedial works that were required to be done at his property at 53 Harvey Street, Burswood (the property).
By way of background to these proceedings, on 22 February 2019, a delegate of the Building Commissioner (Building Commissioner) referred to the Tribunal a complaint (C169867), wherein the owner alleged that certain building works undertaken by CDA Builders Pty Ltd (builder or respondent) at the property were not carried out in a proper and proficient manner or were faulty or unsatisfactory. That matter went to a Tribunal mediation on 10 May 2019 (CC 351 of 2019) and, by consent of the parties, the Tribunal made an order (works order of 10 May 2019) whereby:
•complaint items 16 and 25 were dismissed;
•complaint item 23 is dealt with under complaint item 9 of the works order of 10 April 2019 (see Anderson and CDA Builders Pty Ltd [2020] WASAT 143 at [34] [40]) (Anderson); and
•pursuant to s 36(1) of the BSCRA Act the builder was required to complete certain works by way of remedy of faulty and defective workmanship in respect of complaint items 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 (this item is included with item 8), 17, 18, 19, 20, 21, 22, 24, 25, 26 and 27.
On 7 March 2020, the owner lodged his application with the Tribunal alleging that the builder had failed to comply with the works order of 10 May 2019 in that the builder had failed to remedy complaint items 1, 2, 3, 8, 14, 17, 18, 19, 20, 21, 22, 24, 26 and 27. The owner made his application under s 51(2) and (3) of the BSCRA Act whereby he seeks a conversion of the works order of 10 May 2019 in respect of complaint items set out in the immediately preceding sentence into a monetary order.
Relevantly, the works order of 10 May 2019 provides:
The Tribunal orders by consent:
1.Pursuant to s 36(1) of the Building Services (Complaint Resolution and Administration) Act 2011 in respect of the following items of complaint:
(i)Item 1 Stove splashback
The respondent is to remove the bead currently installed joining the splashback and install a new extension coloured black of approximately 100mm behind the stove in a proper and proficient manner making good all affected areas;
(ii)Item 2 Double entry door to kitchen
The respondent is to change the handles of the doors to the double entry door to the kitchen in a proper and proficient manner making good all affected areas;
(iii)Item 3 Laundry linen press
The respondent is to fit a central support to the top shelf in a proper and proficient manner making good all affected areas;
…
(viii)Item 8 All doors and door frames
The respondent is to sand and repaint doors in a proper and proficient manner making good all affected areas;
…
(xiv)Item 14 Bath installed incorrectly
The respondent is to carry out any and all necessary remedial works to ensure the proper instalation (sic) of the bath following an investigation of the installation of the bath by the respondent and/or his expert. All work is to be carried out in a proper and proficient manner;
…
(xvii)Item 17 Cornice and wall above stair landing
The respondent is to repair cracks in a proper and proficient manner making good all affected areas;
(xviii)Item 18 Structural timber staircase
The respondent is to carry out the necessary remedial work to ensure the staircase is finished in an appropriate manner. All work to be carried out in a proper and proficient manner making good all affected areas;
(xix)Item 19 Top stringer on upper staircase
The respondent is to cut the tips of the stringers so that the level of the stringers is just above the level of the carpet. All work to be carried out in a proper and proficient manner making good all affected areas;
(xx)Item 20 Windows to loft
The respondent is to sand and remove rough finish then seal around the external area of the windows. All work to be carried out in a proper and proficient manner making good all affected areas;
(xxi)Item 21 Loft ceilings
The respondent is to sand and fill all holes cracks and poorly applied ceiling plaster. All work to be carried out in a proper and proficient manner making good all affected areas;
(xxii)Item 22 External downpipe
The respondent is to ensure the PVC downpipe is extended to reach the drain. All work to be carried out in a proper and proficient manner making good all affected areas;
(xxiii)Item 23 Bulkhead in garage
This is dealt with in item 9 in the orders made by the Tribunal on 10 May 2019 in matter CC 194 of 2019;
(xxiv)Item 24 Garage to House entry door handle
The respondent is to replace the door handle with a lever door handle similar to the other internal door handles in the house. All work to be carried out in a proper and proficient manner making good all affected areas;
…
(xxvi)Item 26 Downstairs guest shower
The respondent is to fill gaps with silicon. All work to be carried out in a proper and proficient manner making good all affected areas; and
(xxvii)Item 27 Downstairs toilet
The respondent is to replace the light switch cover and inspect the toilet seat cover and replace it if necessary. All work is to be carried out in a proper and proficient manner making good all affected areas.
There is another decision of the Tribunal concerning the parties and other building works at the property (see Anderson). This matter and the other matter were heard separately and determined separately by the Tribunal.
Relevant procedural history
Following a directions hearing on 25 February 2020, the Tribunal made its usual orders programming the matter through to a final hearing. The orders required, among other things, for the owner and the builder to file with the Tribunal and to provide a copy to the other party all of the documents on which they wished to rely including any expert reports, photographs and quotations or other documents relevant to the costing of the complaint items. The order also provided for the parties to attend a compulsory conference on 12 March 2020 which the builder failed to attend.
The final hearing was set down for one day on 16 April 2020. The owner attended the hearing by teleconference and was legally represented. Mr John Dattilo and Mrs Anna Dattilo representing the builder attended the hearing by teleconference.
We were not able to conclude the hearing of the matter on 16 April 2020, and therefore, following a number of further directions hearings, the Tribunal concluded hearing the matter on 3 September 2020. Both parties attended the hearing on that occasion by teleconference without legal representation.
On 3 September 2020, the Tribunal reserved its decision.
Evidence
In accordance with the Tribunal's usual practice in matters of this nature, the hearing was conducted on the basis that all of the documents filed with the Tribunal would be regarded as being in evidence, subject to any objection. There was no objection to the admission of any of the documents into evidence. During the hearing, the Tribunal marked the following documents, to which the Tribunal has had regard for the purpose of determining the issues as set out below in [17], as exhibits:[1]
•hearing book (pages 1 to 49) prepared by the owner's legal representative dated 16 April 2020 (Exhibit 1)[2];
•owner's quote from Bamica Painting dated 1 August 2019 (Exhibit 2);
•owner's report from R. & G.K. Salisbury dated 10 September 2019 (Exhibit 3);
•builder's email from Ms Rachel Crafter dated 10 September 2019 (Exhibit 4);
•second hearing book (pages 1 to 107) prepared by the Tribunal dated 27 July 2020 dated (Exhibit 5);
•owner's quote from PRM Property Repair & Maintenance (PRM) #11403 dated 14 January 2020 and 3 April 2020 (Exhibit 6); and
•builder's quote from KTDATT dated 25 August 2020 and quote from Joondanna Painting #1328 dated 30 August 2020 (Exhibit 7).
[1] Although forming part of 'exhibits', the parties' contentions and submission in Exhibit 1 and 5 are taken to be submissions, rather than evidence.
[2] Order 3 of the orders made by the Tribunal on 25 February 2020.
During the hearing the owner called upon the following contractors to give evidence in respect of the various complaint items set out in the works order of 10 May 2019:
1)Mr Gavin Turner of WA Custom Glass;
2)Mr Adrian Rains of PRM;
3)Mr Brett Schmidt of West Coast Window Installations; and
4)Mr Rick Salisbury of R. & G.K. Salisbury.
During the hearing the builder called upon the following contractors to give evidence in respect of the various complaint items set out in the works order of 10 May 2019:
1)Mr Duilio Paccani of Joondanna Painting;
2)Mr Tom Shepherd of Total Building Repairs (TBR); and
3)Mr Robert Dattilo of KTDATT.
We note that PRM, TBR and KTDATT provided a quote for most of the complaint items. PRM's quote tended to be at the higher end and KTDATT's quote was usually the least expensive of the three quotes. There are two reasons for this. First, Mr Robert Dattilo of KTDATT stated that he attends to all the remedial works and only engages a painting subcontractor. In this way, Mr Robert Dattilo said he is able to keep his costs low. Second, Mr Rains of PRM stated that he does the quoting which includes a margin to cover his labour cost and that he engages subcontractors to do the remedial works.
Finally, we note that Mr Robert Dattilo is the brother of Mr Datillo, a director of the builder. We are satisfied that the quote provided by Mr Robert Datillo is a genuine quote, and not a quote prepared for the benefit of the builder. We note that Mr Robert Datillo stated that if he is called upon he will undertake the remedial works the he quoted for. For these reasons, in our analysis of the costings evidence in respect of the various complaint items, we have accepted the quote from KTDATT, where it is the lowest quote and the scope of works covers the work required by the complaint item.
An analysis of the costings evidence in respect of the various complaint items per the works order of 10 May 2019 follows sequentially later in these reasons.
We turn, next, to set out the issues to be determined by the Tribunal in this matter.
The issues
The issues to be determined by the Tribunal in this matter are:
1)Did the builder comply with and complete the remedial works as required by the works order of 10 May 2019?
2)If the builder has not complied with the works order of 10 May 2019, should the Tribunal exercise its discretion under s 51 of the BSCRA Act to revoke that order and make a building remedy order (monetary order) under s 36(1)(b) or (c) of the BSCRA Act? If the Tribunal decides to revoke the works order of 10 May 2019 and make a monetary order, what is an appropriate order?
3)What costs of these proceedings, if any, are payable?
Before setting out the relevant legal framework, we turn, next, to briefly set out the position of each party.
Summary of each party's position
The owner contends that despite having agreed for the builder to complete the rectification works as set out in the works order of 10 May 2019, the builder has only partially complied with that order. Consequently, the owner seeks an order from the Tribunal pursuant to s 51(2) and (3) of the BSCRA Act for the works order of 10 May 2020 that required remedial work to be carried out to be converted into a monetary order in the amount of $37,950 to remedy complaint items 1, 2, 3, 8, 14, 17, 18, 19, 20, 21, 22, 24, 26 and 27.[3]
[3] Exhibit 1 at page 4.
The owner also seeks costs in the amount of $10,367.50 as set out in [132] below.[4]
[4] Exhibit 5, at pages 2-3.
The builder contends that complaint items 8, 14, 17, 18, 20, 21 and 22 have been completed. The builder conceded that complaint items 2, 3, 19 and 24 have not been completed. With respect to the other complaint items (1, 26 and 27), the builder raises a number of issues including that the splashback and toilet seat were supplied to the owner and all that needs to be done is to install the items.
The builder opposes the owner's claim for costs in these proceedings.
Legal framework
In this case, the owner seeks an order from the Tribunal converting the works order of 10 May 2019 into a monetary building remedy order.
The relevant legal framework is set out in Anderson at [23] to [26].
We turn, next, to determine each of the issues set out in [17] above.
Consideration by the Tribunal
Issue 1 - Did the builder comply with, and complete the remedial works required by the works order of 10 May 2019?
The owner submits that the builder has failed to complete most of the remedial works required by the works order of 10 May 2019. The builder disagrees.
As set out earlier, the builder asserts that complaint items 8, 14, 17, 18 20, 21 and 22 have been completed and concedes that complaint items 2, 3, 19 and 24 have not been completed. In regards to complaint items 1, 26 and 27 the builder stated it has partially completed the remedial works.
We note the works order of 10 May 2019 does not set a date by which the builder is to complete the remedial works. In our view this does not mean that the builder has as long as it wishes to complete the remedial works. Rather, we are of the opinion, that the date by which the remedial works are to be completed must allow for a reasonable time in which the builder is able to undertake the remedial works taking into consideration the nature of, and the extent of the remedial works. In this case, the owner lodged his application with the Tribunal on 14 January 2020. That is some eight months after the works order of 10 May 2019. In our view, taking into consideration the nature of the complaint items and the extent of the remedial works required in this case, we consider that eight months is a reasonable period for the remedial works to have been completed.
We will now work through each of complaint items 1, 2, 3, 8, 14, 17, 18, 19, 20, 21, 22, 24, 26 and 27 to determine if the builder complied with, and completed the remedial works required by the works order of 10 May 2019.
Complaint item 1 stove splashback
The owner submitted the quote from PRM for $490 plus GST as the costing to remedy complaint item 1. The quotation provided that the '[u]nfinished glass splashback requires small black strip behind freestanding cooker approx. 1200 x 60 mm'.
The owner's evidence is that the builder dropped off 'stuff' to the property which included a piece of glass, but that he does not know what that the glass is to be used for.[5] Mr Rains of PRM explained that if the glass had been supplied to the owner, and if is suitable, the quote can be reduced by about $150. Or in other words, PRM's quote to just install the splashback is $340 plus GST.
[5] ts 62, 16 April 2020.
The builder submitted it provided the splashback to the owner, which it acquired from WA Splashbacks for about $100 and that all that is required to complete the remedial work for this complaint item is the installation of the splashback. The builder submitted a quote from TBR for $220 plus GST to install the spashback. Further, the builder submitted the quote from KTDATT for $150 plus GST to install the stove splashback. Mr Robert Datillo of KTDATT explained the scope of works as follows:[6]
[O]nce we have pull the oven away from the wall, it's just a matter of using the – you know, the correct adhesives to stick to the wall along with the – you know, we will clean the surface to make sure the – the wall surface is nice and clean from any debris or any grease. I then silicone it to the – you know, with the recommended silicone, to to the wall and, yes, with a couple of little trimmers underneath just to hold up so it doesn't sag, and, yes, it's pretty straightforward.
[6] ts 75, 3 September 2020.
We find that the builder supplied to the owner the splashback but, as conceded by the builder, the splashback is still to be installed. Consequently, we find that the builder did not complete all of the remedial works as set out in the works order of 10 May 2019 for complaint item 1.
We consider that a fair and reasonable cost to complete the works required by complaint item 1 is $150 plus GST.
Complaint item 2 double entry door to kitchen
The owner submitted the PRM quote which provided:[7]
Double doors leading to kitchen need to be switched to opposite way, $360 plus GST.
[7] Exhibit 6 and ts 63, 16 April 2020.
Mr Rains of PRM explained that his quote included an amount to patch holes and to paint the doors to make it look like there have not been any repairs made.
The builder submitted the quote from TBR for $295 plus GST to change the handles of the doors to the double entry door to the kitchen. Further, the builder submitted a quote from KTDATT for $250 plus GST which provides:[8]
Remove existing door handles and fit door handles to RHS
Putty fill latch side of door, sand and paint.
[8] Exhibit 7.
Mr Robert Datillo's evidence is that the doors do not need to be removed to complete the remedial works for this complaint item.
As conceded by the builder, we find that the builder did not complete the remedial works required for complaint item 2 as set out in the works order of 10 May 2019.
We consider that a fair and reasonable cost to complete the works required by complaint item 2 is $250 plus GST.
Complaint item 3 laundry linen press
The owner submitted the PRM quote for $420 plus GST to:[9]
[s]upply and install new support and white melamine shelf to overhead storage area.
[9] Exhibit 6.
The builder submitted the quote from TBR for $360 plus GST to supply and install a new support brace. Further, the builder submitted a quote from KTDATT for $250 plus GST to supply and install a new support.
As conceded by the builder, we find that the builder did not complete the remedial works required for complaint item 3 as set out in the works order of 10 May 2019.
The PRM quote requires the installation of a white melamine shelf in addition to the support. This was not required by the works order of 10 May 2019.
We consider that a fair and reasonable cost to complete the works required by complaint item 3 is $250 plus GST to supply and install a new support.
Complaint item 8 all doors and door frames
The owner submitted that the sanding and painting of all doors and frames was only partially completed by the builder. The owner submitted the quote from PRM for $150 plus GST which provides for weather seals to be fitted to the balcony door. The owner submitted that even though there was never a weather seal on the balcony door, the fitting of such a seal is necessary in terms of making good all affected areas.
The builder submitted the invoice from Bamica Painting dated 1 August 2019 to support its position that this complaint item has been completed.[10] Further, the builder submitted a quote from KTDATT for $100 plus GST for 'weather strip to balcony door only require RP59'.[11] The builder's evidence is that it provided the quote from KTDATT as a backup in the event the Tribunal found the weather strip was part of complaint item 8.
[10] Exhibit 2.
[11] Exhibit 7.
Even though there is reference to a weather strip for the balcony door this is not provided for in the works order of 10 May 2019 and we therefore have not considered it.
We find that the builder has completed the remedial works required for complaint item 8 as set out in the works order of 10 May 2019 as evidenced by Bamica Painting's invoice. The Tribunal will therefore dismiss the owner's claim in respect of this complaint item. In other words, the Tribunal declines to revoke complaint item 8 of the works order of 10 May 2019.
Complaint item 14 bath installed incorrectly
The owner submitted the PRM quote for $6,985 plus GST to:[12]
5. Upstairs bathroom
- Remove existing bath hob
- Remove one course of splashback tiles to the perimeter of the bathtub
- Disconnect plumbing service and remove bath
- Supply and install new bathtub to suit
- Brickwork services to rebuild hob
-Tiling services to new bath hob and replace splashback - tiles to be matched as close as practical
- Remove rubbish from the site and carry out builder's clean
[12] Exhibit 6.
Mr Rains' evidence is that the bath has not been used much and that in his opinion, in which he stated that he is not a bath expert, and without having looked into the hob, the bath has not been installed correctly because it makes a noise, it is unstable and when tested the bath flexes in and under his feet.[13] Further, Mr Rains explained that the most cost effective method with baths is in general, to take out the bath and replace it with a new bath.
[13] ts 34-35, 3 September 2020.
The builder submitted that the bath has been installed correctly and therefore no remedial works are required. Mr Datillo stated that while he is not an expert in baths, he inspected the bath in September 2019 by putting his hands on the bath and tried to move it. The bath did not move. Mr Datillo said he looked for any hairline cracks to show any sign of movement. There were none. Finally, Mr Datillo said he stepped into the bath bare foot and found no fault with the bath. It was through this process of elimination that Mr Datillo said he found the installation of the bath was done properly.
Further, the builder relies on Mr Tom Shepherd from TBR who stated:[14]
Inspected the bath and found no movement. Noise was minimum and found no damage to bath or surrounding tiles or grout.
[14] ts 117-119, 16 April 2020.
Mr Shepherd reported that he has 30 years' experience in repairing and attending to baths as part of his house repairs business. Mr Shepherd's evidence is that baths are prone to make some noise and that if the bath had not been installed correctly he would have expected to see visible signs of damage which he did not see. Mr Shepherd stated that he observed the owner step into the bath and heard a little noise but he did not see any movement in the bath. Further, Mr Shepherd's evidence is that he did not see any obvious signs of damage including grout breakage or sealant breakage around the edges of the bath. Mr Shepherd stated that the only way to know if the bath was installed incorrectly is to have x-ray vison or to pull it apart. Finally, Mr Shepherd's evidence is that the even though the bath was installed some four years ago, it could be reused, that is taken out and then re-bed it.
The owner referred the Tribunal to a quote from plumbers, R. & G.K. Salisbury which provided in part:[15]
When standing in bath, there is movement on the base of the bath, indicating that the base of the bath is not sufficiently supported on a mix of sand and cement. This movement also puts stress on the rim of the bath that must be supported on 38 by 19 millimetre timber batten fixed to the wall. It is recommended that the tiles on the front of the bath be removed and the support under the bath be done to allow no movement when the bath is filled with water and someone steps into it.
[15] Exhibit 3.
Mr Salisbury stated that he is a licenced plumber having worked for Fewster & Stone for 30 years doing the plumbing work. Mr Salisbury said the bath is a fibreglass or a polybutylene bath and when you step into it you can feel movement before it becomes solid. Mr Salisbury estimated that there is a 5 to 6 millimetre gap between the base of the bath and what it is sitting on which, over time, will cause fractures in the bottom of the bath but also to the rim of the bath because those parts are taking the weight of the water before it is supported. Mr Salisbury's evidence is that the bath is not sufficiently supported on a mix of sand and cement.
Further, Mr Salisbury said he was not aware if there is a tolerance allowed in regards to the installation of the bath for movement and noise. Mr Salisbury explained that it is necessary to take some tiles off in order to see if spray can be used to close in the cavity, but if too much spray is used, the spray, as it expands, can lift the bath and do more damage. Because of this concern, Mr Salisbury said the easiest way forward is to remove the bath and then to re-bed the same bath. Mr Salisbury estimated that to do this, the plumbing required would be for eight to ten hours' work or about $700 plus GST which would include the removal and restoration of tiles and brickwork.
The builder said that an inspector from Reece Plumbing attended the property to inspect the bath in September 2019. The builder referred the Tribunal to the email from Ms Rachel Crafter, Key Account Manager- Retail which stated:[16]
[I] attended 53 Harvey Rd Burswood and inspected a Maxton bath. I took a recording of the sound of the bath and played it to our after sales manager at the time. His response that the sounds were acceptable. The bath on inspection also seemed to have no visible damage and is in sound condition. As we do not install products I cannot comment on the installation however this seems to have been done correctly as per our instructions supplied with the bath.
[16] Exhibit 4.
Ms Crafter was not called by the builder and therefore the owner did not have the opportunity to cross-examine her evidence with the consequence we were not able give any weight to above statement.
Finally, the builder submitted a quote from TBR which provided in part:[17]
4.) Upstairs bathroom. I have not quoted on this as I read the report [from Ms Rachel Crafter] on this bath noise. I had the owner stand and move in the bath and the noise was minimum and without knowing the spec's of the bath or the quality of the bath I think it is acceptable. Because some baths are made with minimum fibreglass and always make a noise. I cannot see inside the hob area to determine the installation workmanship.
[17] Exhibit 1 at page 46.
The builder submitted that if the Tribunal finds that the bath was installed incorrectly then an adjustment needs to be made to reuse the bath as the owner's expert, R. & G.K. Salisbury gave evidence that the bath could be reused and that the work involved to remove the bath and the existing hob and then reinstate the hob and the existing bath is about $700 plus GST plus an amount for tiling work for one course of splashback tiles to the perimeter of the bathtub.
Of the contractors who gave evidence, we accept that Mr Salsbury and Mr Shepherd are the most knowledable about baths. One stated that the bath was installed correctly, the other stated it was not. Neither contractor inspected inside the hob. We are not satisfied on the evidence before the Tribunal that the bath was installed incorrectly.
The Tribunal will therefore dismiss the owner's claim in respect of this complaint item. In other words, the Tribunal declines to revoke complaint item 14 of the works order of 10 May 2019.
Complaint item 17 cornice and wall above stair landing
The owner submitted a quote from PRM for $2,100 plus GST to:[18]
[C]rack repairs to landing
Cornices above landing have cracks that require repair
- Reseal cracks present in cornice
- Gouge wall cracks to fill, flush and sand ready for painting
- Painting services to cornice and wall corner to corner – colour to be confirmed
[18] Exhibit 6.
At hearing Mr Rains stated that the whole wall would need to be painted otherwise you will see the patch.[19]
[19] ts 18, 3 September 2020.
The builder submitted that this complaint item was remedied by Bamica Painting who carried out the all the remedial painting work. The builder submitted that the owner approved the work completed by Bamica Painting. The quote provided in part: [20]
Ceilings in all internals _ patch the crakcs (sic) and dents on ceiling, sand it dust down then apply undercoat where need it and two coats of ceiling paint.
[20] Exhibit 2.
The builder referred the Tribunal to the quote from TBR for $950 plus GST (or $1,450 plus GST for a full paint) to repair cracks to cornice, rake out wall crack and fill with base coat and then flush over with finishing plaster and seal and patch and patch paint. Mr Shepherd's evidence is that he will do a test patch and if it flushes with the rest of the paint, then a patch paint is sufficient, otherwise a full panel paint will be required.
The builder did not call the contractor from Bamica Painting to give evidence. We are not satisfied that Bamica Painting's quote (as set out above) provides for the repair of cracks in the cornices and all above the stair landing.
We consider that a fair and reasonable cost to complete the works required to remedy complaint item 17 is $950 plus GST.
Complaint item 18 structural timber staircase
The owner submitted a quote from PRM for $2,100 plus GST to:[21]
Supply and install new timber framework.
Supply and install new MDF boarding to hide exposed structural staircase beams.
Supply and apply two coats of paint corner to corner. Colour to be confirmed.
[21] Exhibit 6.
Mr Rains' evidence is that the staircase was not finished appropriately and the most cost effective thing to do is to box it in so that all the timber underneath it cannot be seen.[22]
[22] ts 45, 3 September 2020.
The builder submitted a quote from TBR for $950 plus GST to make the timbers presentable and repaint.[23] Mr Shepherd explained the scope of works for this complaint item requires the paint to be sanded back followed by drilling holes into the timber to put in what is known as 'builder's bog', which is then sanded for a smooth level and neatness. Finally an undercoat is applied followed by a coat of paint.
[23] Exhibit 1 at page 47.
The builder also submitted a quote from KTDATT for $700 plus GST for what Mr Robert Dattilo described as 'cosmetic work' to fill in of the little marks and indentations in the timbers underneath the staircase and then to sand and paint.[24]
[24] Exhibit 7.
Finally, the builder referred the Tribunal to the owner's complaint to the Building Commissioner where the complaint referred to 'rough finishes, unacceptable by industry standard, nail heads showing and hammer indentations'. That reference, submitted the builder, requires the existing timbers underneath the staircase to be remedied and not for the installation of MDF boarding to box in the staircase.
We consider that a fair and reasonable cost to complete the works required to remedy complaint item 18 is $700 plus GST.
Complaint item 19 top stringer on upper staircase
The owner submitted a quote from PRM for $700 plus GST to:[25]
The trip hazard on tips of stringer to stair landing needs to be trimmed.
Painting services as required. Colour to be confirmed.
[25] Exhibit 6.
Mr Rains' evidence is that the painting for complaint item 17 could be included with complaint item 19 or vice versa.[26]
[26] ts 24, 3 September 2020.
The builder conceded it had not completed this complaint item and referred the Tribunal to the quote from TBR of $525 plus GST where it stated:[27]
[T]hese [stringer] are at a normal length at the bottom of [the] steps as explained to owner. However at the top of the stringers at top landing need to be rounded off instead of the sharp point.
[27] Exhibit 1 at page 47.
Mr Shepherd explained that 'rounding' is the same thing as the 'cutting' of the stringers. He said the stringers would require a cut of at least 35 to 40 down on an angle and then both sides rounded off to make a complete curve. After that, Mr Shepherd said that the sealer and paint is to be applied to complete the remedial work for this complaint item.
Finally, the builder submitted a quote from KTDATT for $250 plus GST.[28] Mr Robert Dattilo explained that once he had cut the stringer 10 millimetres above the carpet it was just a matter of sanding it and painting it. Mr Robert Dattilo did not have an alternative when the owner stated that the stringer has to be cut below the carpet level because the stringer is a trip hazard.
[28] Exhibit 7.
We note the works order of 10 May 2019 for this complaint item requires the builder to 'cut the tips of the stringers so that the level of the stringers is just above the level of the carpet'. We accept that 10 millimetres is just above the level of the carpet and therefore we consider that a fair and reasonable cost to complete the works required to remedy complaint item 19 is $250 plus GST.
Complaint item 20 windows to loft
The owner submitted that the remedial works set out in complaint item 20 is not suitable to fix the complaint item because there is still a leak. The owner referred the Tribunal to the quote from the builder's contractor, TBR, which stated in part:[29]
Loft windows. I do not know how people came to the conclusion that these windows do not have the required flashing as I could not see any evidence of any building materials being removed to examine if they were installed. I believe there is another water entry point that is not obvious and should be looked for (sic) before going to such great extent of replacing all windows.
[29] Exhibit 1 at page 47.
The owner also referred the Tribunal to the report from Mr Schmidt of West Coast Window Installation where he opined that there 'are no visible flashings and obvious gaps around frames where wind driven water could likely enter the wall'.[30]
[30] Exhibit 5 at page 25.
Mr Turner from Custom Glass for the owner explained that there is nothing wrong with the aluminium windows but how they were fitted. He explained:[31]
It's the leaking what's getting inside of the house, the water what's coming in, because when you look how the windows have been fitted, the water is actually running down off even just the sides of the roof, sitting on top of the window frames and getting inside. There's no flashing to stop the water from getting around the windows. The windows themselves [were] made correct and right. You can't remove those windows and re-fit them in the same spot. We need to make them slightly smaller and then refit them.
[31] ts 30, 16 April 2020.
Mr Rains made the following comments in his quote of $21,000 plus GST:[32]
[32] Exhibit 6.
As per Capricorn Glass Quote
Upstairs dormer windows appear to be leaking and cause staining to adjacent Gyprock
Inadequate flashing and window install appears to be the primary cause.
- Supply and erect scaffolding to site
- Remove external cladding, fascias as required.
- Supply and install correct flashing and sarking as required.
- Reclad externally (including replacement of any materials damaged on removal)
- Make all necessary repairs to internal loft Gyprock walls and cornice and paint as required.
- Demobilise scaffold, remove all waste from site and undertake builder's clean.
*Please note: If the existing window can be reused, then a deduction, allowed for supply of new window, of $2070 + gst will apply.
The builder submitted that Bamica Painting ordered all the paint to paint all of the ceilings, the door frames and the doors throughout the house in August 2019 and completed all of the remedial painting work. The builder said it paid Bamica Painting $450 on 31 August 2019 and a further amount of $4,700 on 13 September 2019. The builder stated that there was a typographical error on the works order of 10 May 2019 because the remedial works were to be done internally and not externally. This is, according to the builder, because the relevant external area is a Hardie board plank which has a rough texture.
Mr Paccani of Joondana Painting for the builder explained that when they paint exteriors of houses they use Sikaflex to gap all the window frames and reveals.[33]
[33] ts 69, 3 September 2020.
The builder disputed that the works order of 10 May 2019 for this complaint item required the removing and replacement of locked windows. The builder submitted that the evidence before the Tribunal from both parties' contractors was that destructive testing was required to determine if the windows had not been installed correctly and to determine if the flashing or sarkings were not installed. This has not been done. Further, the builder submitted that Mr Shepherd stated that in his opinion there is another water entry point that is not obvious and that should be investigated and dealt with before considering the replacement of the windows.
The builder submitted that the contractors agreed that if the windows are removed and replaced with new windows this may not solve the leaking problem.
The owner concentrated on investigating what he reported to be visible internal water during inclement weather (or in other words, leaking). However, in our view, this complaint item does not require the builder to investigate and remedy leaking. The works order of 10 May 2019, as agreed by the parties, requires the builder to sand and remove rough finish and then seal around the external area of the windows. Costings evidence to do these remedial works were not provided to the Tribunal. We therefore dismiss the owner's claim in respect of this complaint item. In other words, the Tribunal declines to revoke complaint item 20 of the works order of 10 May 2019.
Complaint item 21 loft ceilings
The owner did not submit any costings for this complaint item.
The builder submitted that the remedial works were completed by Bamica Painting where the cracks and dents on the ceiling were patched, sanded then dusted followed by the application of an undercoat where required and finally the application of two coats of ceiling paint.[34]
[34] Exhibit 2.
We are therefore satisfied on the evidence before the Tribunal that the remedial works required for the loft ceiling were completed. We will therefore dismiss the owner's claim in respect of this complaint item. In other words, the Tribunal declines to revoke complaint item 21 of the works order of 10 May 2019.
Complaint item 22 external downpipe
The owner submitted a quote from PRM for $1,400 plus GST which provides:[35]
All downpipes finished too short above drainage grates.
Roof plumber required to extend all downpipes, approximately 100 millimetres to floor level.
[35] Exhibit 6.
Mr Rain's evidence is that his quote provides for the replacement of all downpipes at the property.[36] Mr Rains stated that if the sand levels were altered around the perimeter of the house, or in other words if sand had been taken away, this would not give the appearance that the downpipes were finished too high. This is because the distance between the bottom of the downpipe and the grate would be the same, unless the downpipes have been cut down.[37]
[36] ts 26, 3 September 2020.
[37] ts 47, 3 September 2020.
The owner drew the Tribunal's attention to the builder's quote from TBR where it is stated:[38]
9.) External downpipes. These are installed slightly high but the height gets greater to the side of the house because [the owner] is making the side walkway quite lower than the front entry concrete slab. I did not quote on that.
[38] Exhibit 1 at pages 47-48.
The owner submitted that the works order of 10 May 2019 contemplated a downpipe at the rear of the house, at the time of the complaint, but no soakwell had been fitted. The owner said the builder has subsequently installed the soakwell but the downpipe does not fit.
The builder submitted that it completed the remedial works, being to extend the PVC pipe, of about 40 millimetre in diameter, which is located to the rear of the house. The builder explained that sand had been removed from around the house which may make the downpipes appear to finish too high. Further, the builder submitted that the quote from TBR concerns the side of the house, and not the rear of the house.
We find that the relevant downpipe is that located at the rear of the house, as stated by the owner. We do not accept the quote from PRM as it provides for all downpipes to be extended. Further, we find the TBR quote concerns the downpipes to the side of the house and not the downpipe at the rear of the house.
We are therefore not satisfied on the evidence before the Tribunal that the remedial works required for the external PVC drainpipe at the rear of the house were not completed. We will therefore dismiss the owner's claim in respect of this complaint item. In other words, the Tribunal declines to revoke complaint item 22 of the works order of 10 May 2019.
Complaint item 23 bulkhead in garage
This complaint item was dealt with in Anderson at [34] to [40]. We therefore do not consider complaint item 23 any further in this decision.
Complaint item 24 garage to house entry door handle
The owner submitted a quote from PRM for $350 plus GST which provides:[39]
The door handle to garage needs to have a leaver hand to match others to house.
Remove existing door handles.
Supply and install new lever set handles to match rest of house.
[39] Exhibit 6.
The builder submitted the quote from KTDATT for $150 plus GST to change the handles to lever handles with the existing deadlock and to have it keyed alike.[40] Mr Robert Dattilo's evidence is that if the deadlock is working then all that is needed to be done is to put an entry set just above the deadbolt, and therefore it is not necessary to change the deadbolt.
[40] Exhibit 7.
We find, as conceded by the builder, that it did not complete the remedial works required for complaint item 23 as set out in the works order of 10 May 2019.
We consider that a fair and reasonable cost to complete the works required by complaint item 23 is $150 plus GST.
Complaint item 26 downstairs guest shower
The owner submitted a quote from PRM for $3,450 plus GST which provided:[41]
The downstairs shower has what appears to be acidic stains on the frame and requires to supply and install a new shower screen and match existing.
[41] Exhibit 6.
Mr Rains' evidence is that his quote does not match the complaint item, however, when the new shower screen is installed silicone will be needed to seal both sides of the shower frame.[42] If the remedial works were to be limited to run the silicone down both side of the shower screen, Mr Rains said the cost would be about $120.[43]
[42] ts 28, 3 September 2020.
[43] Ibid.
The owner referred the Tribunal to a quote from M & S Glass and from Tudor Glass & Glazing for the supply and installation of a shower screen on the basis that the existing shower screen had been damaged.[44]
[44] Exhibit 1 at pages 36 and 39.
Mr Rains was not able to explain the difference in the price quoted for the shower of $3,450 when Tudor Glass & Glazing's quote for the same shower was $990. Mr Rains freely accepted there was a huge inconsistency which he could not explain.
The builder submitted that the remedial works for this complaint item were partially completed as remedial works were done inside the shower recess which was not siliconed. The builder stated that there were a few issues with the shower, and it is because of that, that the silicone had not been applied as they were waiting for the shower framework to be cleaned.
The builder submitted a quote from KTDATT for $100 plus GST to silicone inside shower base.[45] Mr Robert Dattilo said his quote was only for the shower base and not up the side of the shower frame.
[45] Exhibit 7.
Finally, the builder said it obtained a quote from TBR to replace the shower screen because the owner submitted a quote. The builder reiterated that the works order of 10 May 2019 did not provide for the replacement of the downstairs guest shower.
We find that the builder did not complete the remedial works required for complaint item 24 as set out in the works order of 10 May 2019.
We consider that a fair and reasonable cost to complete the works required by complaint item 24 to fill gaps in the shower with silicon is $100 plus GST.
Complaint item 27 downstairs toilet
It was common ground that the light switch was repaired.
The owner's evidence is that a number of items were dropped off at the property and that while a toilet seat was one of the items, there are no mounting screws and the old toilet seat has not been removed and the new toilet seat installed.
The owner submitted a quote from PRM for $345 plus GST which provides:[46]
Remove existing toilet seat.
Supply and install new toilet seat to suit.
[46] Exhibit 6.
Mr Rains' evidence that if only the toilet seat required installation then his quote would be about $120 plus GST.[47]
[47] ts 48, 3 September 2020.
The builder submitted that the toilet seat was supplied to the owner and therefore all that is required is the removal of the old seat and the installation of the new seat.
The builder submitted a quote from TBR for $120 plus GST to remove and install toilet seat.[48] The builder also submitted a quote from KTDATT for $100 plus GST to remove the existing toilet and replace with the new seat.[49]
[48] Exhibit 1 at page 48.
[49] Exhibit 7.
We find that the builder did not complete the remedial works required for complaint item 27 as set out in the works order of 10 May 2019.
We consider that a fair and reasonable cost to complete the works required by complaint item 27 to remove the toilet seat in the downstairs toilet and to install the new toilet seat (previously provided to the owner) is $100 plus GST.
Summary of findings
Following is a summary of our findings in respect of each of the complaint items for Issue 1:
Complaint
Fair and reasonable cost to complete the remedial work per the works order of 10 May 2019
Complaint item 1 – Stove splashback
$150 plus GST
Complaint item 2 – Double entry door to kitchen
$250 plus GST
Complaint item 3 – Laundry linen press
$250 plus GST
Complaint item 8 – All doors and door frames
Dismissed
Complaint item 14 – Bath installed incorrectly
Dismissed
Complaint item 17 – Cornice and wall above stair landing
$950 plus GST
Complaint item 18 – Structural timber staircase
$700 plus GST
Complaint item 19 – Top stringer on upper staircase
$250 plus GST
Complaint item 20 – Windows to loft
Dismissed
Complaint item 21 – Loft Ceilings
Dismissed
Complaint item 22 – External downpipe
Dismissed
Complaint item 23 – Bulkhead in garage
Dealt with in matter CC 1731 of 2019 (see Anderson
Complaint item 24 – Garage to House entry door handle
$150 plus GST
Complaint item 26 – Downstairs guest shower
$100 plus GST
Complaint item 27 – Downstairs toilet
$100 plus GST
Total
$2,900 plus GST or a total of $3,190
We turn, next, to determine if the Tribunal should exercise its discretion under s 51 of the BSCRA Act to revoke the works order of 10 May 2019 and make a building remedy order pursuant to s 36(1)(b) or (c) of the BSCRA Act.
Issue 2 - Should the Tribunal exercise its discretion under s 51 of the BSCRA Act and revoke the works order of 10 May 2019 and make a monetary order pursuant to s 36(1)(b) or (c) of the BSCRA Act? If the Tribunal decides to revoke that order and make a monetary order, what is an appropriate order?
The relevant legal framework is set out in Anderson at [95] to [96].
In this case, we are satisfied that the Tribunal should revoke the works order of 10 May 2019 made pursuant to s 36(1)(a) of the BSCRA Act and to make a monetary order pursuant to s 36(1)(b) of the BSCRA Act in respect of complaint items 1, 2, 3, 17, 18, 19, 24, 26 and 27. In other words, it is appropriate in this case to exercise the Tribunal's discretion under s 51 of the BSCRA Act to convert the works order of 10 May 2019 to a monetary order in respect of the above listed complaint items. This is because, on the evidence before the Tribunal as set out earlier, we found that the builder had only partly completed the remedial works that it was required to complete complaint items 1, 2, 3, 17, 18, 19, 24, 26 and 27. Further, we are satisfied that the builder completed the remedial works required in respect of complaint items 8, 14, 20, 21 and 22 and therefore the works order of 10 May 2019 in relation to these complaint items remains in place. Finally, we note that complaint item 23 (bulkhead in garage) is dealt with in matter CC 1731 of 2019 (see Anderson at [34] to [40]).
In conclusion, the Tribunal is satisfied that $2,900 plus GST, or a total of $3,190 is the fair and reasonable cost to remedy complaint items 1, 2, 3, 17, 18, 19, 24, 26 and 27 as set out in the works order of 10 May 2019.
Finally, the Tribunal considered the owner's application for costs in these proceedings.
Issue 3 - Should costs be awarded in these proceedings?
The owner claimed his costs in these proceedings before the Tribunal.
The builder filed written submissions with the Tribunal opposing the owner's claim for costs.
The relevant legal framework is set out in Anderson at [103] to [108].
For the purposes of his costs application, the owner provided the Tribunal with the following list of legal costs from SuffolkLaw Pty Ltd and Mr Johnstone of counsel:[50]
[50] Exhibit 5, pages 2-3.
1)directions hearing 25 February 2020 - two hours at $319 (preparation and attendance)
$638.00
2)compulsory on 12 March 2020 - six hours at $319 (three hours preparation and three hours attendance)
$1,914.00
3)directions hearing 7 April 2020 - two hours at $319 (preparation and attendance)
$638.00
4)preparing hearing book as per Tribunal orders 14 and 15 April 2020 - two hours at $319 (preparation and attendance)
$638.00
5)preparing for hearing 16 April 2020 perusal and consider of hearing book documents, expert reports and quotes eight hours at $319
$2,552.00
6)attendance at hearing on 16 April 2020 12.5 hours at $319
$3,987.50
TOTAL $10,367.50
The reasons given by the owner for seeking costs in these proceedings were as stated in Anderson at [111].
Similarly, the reasons given by the builder in opposing the owner's application for costs in these proceedings are the same as those set out in Anderson at [112].
Conduct of the builder
In exercising the Tribunal's discretion to consider making an order for costs, it is necessary to consider whether, and to what extent, the owner has established that the conduct of the builder impaired the attainment of the Tribunal's objectives: Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 at [54]. One of the objectives of the Tribunal in s 9 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) is to act speedily and with as little formality and technicality as is practicable, and to minimise the costs to the parties.
The owner contends that the builder failed to attend the compulsory conference on 12 March 2020 and the directions hearing on 7 April 2020. As a result of these failures to comply with orders of the Tribunal, the owner says the builder's conduct was unreasonable and/or vexatious with the result that he had to incur further costs in order to have the works order of 10 May 2019 converted to a monetary order.
The builder's director, Mr Datillo, fully explained his reasons for failing to attend the compulsory conference on 12 March 2020 and the directions hearing on 7 April 2020 which were supported by medical documentation filed with the Tribunal.
In general, compliance with orders of the Tribunal assists the Tribunal to achieve its objectives of acting speedily in the resolution of disputes and to minimise the costs to the parties. On this occasion, we find that when the builder's director, Mr Datillo, put into place appropriate medical supports around him, the Tribunal was able to proceed to conclude the matter in accordance with its objectives as set out in s 9 of the SAT Act. In the circumstances, we do not find that the builder's conduct was unreasonable or vexatious.
Exercise of discretion in these proceedings
The nature of the dispute is a relevant consideration to the Tribunal's exercise of its discretion to make an order for costs. These proceedings concern the conversion of the works order of 10 May 2019 to a monetary order. At hearing, the issue of whether the bath had been installed correctly was a hotly contested item. The windows to the loft was also a contentious item at hearing. The experts had differing views on these issues as did the parties. The owner pointed to the builder not completing all of the remedial works as a reason for an order for costs in his favour, while the builder's positon is that it believes it has reasonably endeavoured to comply with works order of 10 May 2019.
The dispute between the parties did raise technical issues about the installation of the bath. The Tribunal finds that it was open to the builder to properly put forward its position supported by evidence. Similarly, in relation to the windows to the loft, we find that it was open to the builder to properly put forward its position supported by evidence. The fact that the builder was successful on the issue of bath installation and the windows to the loft, supports a finding that the builder had a reasonable basis to challenge the costings sought by the owner to complete the remedial works in respect of those complaint items.
In relation to the legal costs incurred by the owner in these proceedings, in our view, it is appropriate for the builder to be ordered to pay a contribution towards the owner's legal costs for the following two reasons. First, the builder was unsuccessful against the owner in converting the works order of 10 May 2019 into a monetary order. Second, the owner was forced to pursue a final hearing in order to bring the litigation to a finality by the conversion of the works order of 10 May 2019 into a monetary order.
Taking a broad brush approach in a relatively robust fashion, we consider that $1,000 ought to be recovered by the owner from the builder as fair and reasonable in all the circumstances of this case and not excessive in nature. The Tribunal will therefore order the builder to pay to the owner, within 28 days of its order, the amount of $1,000 pursuant to s 49 of the BSCRA Act.
Conclusion
For the reasons set out above, the Tribunal will make the following orders.
Orders
The Tribunal orders:
1.Pursuant to s 51(2) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) the order made by the Tribunal on 10 May 2019 (in matter CC 194 of 2019) is revoked in respect of complaint items 1, 2, 3, 17, 18, 19, 24, 26 and 27.
2.Pursuant to s 36(1)(b) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), the respondent shall pay to the applicant $3,190 within 28 days of this order (in respect of complaint items 1, 2, 3, 17, 18, 19, 24, 26 and 27).
3.Pursuant to s 49 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), the respondent shall pay to the applicant $1,000 within 28 days of this order.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R PETRUCCI, MEMBER
16 NOVEMBER 2020