BACICH and T & H NOMINEES PTY LTD - [2025] WASAT 63

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   BACICH and T & H NOMINEES PTY LTD [2025] WASAT 63
MEMBER:   MR D AITKEN, SENIOR MEMBER
MR R AFFLECK, SENIOR SESSIONAL MEMBER

HEARD:   26 AND 27 MARCH 2025
DELIVERED          :   3 JULY 2025
FILE NO/S:   CC 26 of 2023
BETWEEN:   IVAN BACICH
Applicant
AND
T & H NOMINEES PTY LTD
Respondent

Catchwords:

Home building work contract (HBWC) complaint - Review of decision of original Tribunal to decline to make a HBWC remedy order - Whether the complaint properly made to the Building Commissioner within time - When did the cause of action arise for the breach of contract - Breach of contract by not obtaining a building permit for the patio constructed - What loss or damage suffered by the applicant - Ruling principle with respect to damages for breach of contract at common law applies to determination of compensation under s 43(1)(a) and s 43(2)(d)(i) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) - Did the applicant take all reasonable steps to mitigate his loss - The legislative requirements for obtaining retrospective approval (a building approval certificate) - Whether a party to a HBWC can be compensated under s 41(2)(d)(i) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) for non-financial loss or damage, such as emotional harm or personal injuries

Legislation:

Building Act 2011 (WA), s 9, s 51, s 54(3), s 57, s 57(1),
Building Regulations 2012 (WA), reg 4, reg 36, reg 36(2)(b)
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 6(3)(b), s 7(1), s 7(2), s 7(3), s 9, s 10, s 11(1), s 11(1)(d), s 37, s 41, s 41(2), s 41(2)(d), s 41(2)(d)(i), s 42, s 43, s 43(1), s 43(1)(a), s 43(1)(b), s 43(2)(a), s 43(2)(d), s 58(2), s 58(5), s 67,
State Administrative Tribunal Rules 2004 (WA), r 39B, r 39C,

Result:

Application partly successful

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	Mr S Lieberfreund

Solicitors:

Applicant	:	N/A
Respondent	:	Morgan Alteruthemeyer Legal Group

Case(s) referred to in decision(s):

Baltic Shipping v Dillon (1993) 176 CLR 344
Morton Seed & Grain Pty Ltd v Phillbourne Manufacturing Pty Ltd [2018] WASC 386
Robinson v Harman (1848) 1 Exch 850
Summit Rural (WA) Pty Limited v Lenane Holdings Pty Ltd [2024] WASCA 122
Suri and Beyond Builders Pty Ltd [2024] WASAT 20
Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8; (2009) 236 CLR 272
The Owners of 52 Mill Point Road Strata Plan 62152 and Hanssen Pty Ltd [2021] WASAT 102
Wyloo Metals Pty Ltd v Quarry Park Pty Ltd [2021] WASC 356

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

This proceeding is an application by Mr Ivan Bacich (applicant) for review of the decision of the Tribunal, constituted by Member Barton and Sessional Member Fraser (original Tribunal) on 9 December 2022 in Matter Number CC 699 of 2022 (original proceeding).
The original proceeding concerned a complaint by the applicant to the Building Commissioner that T & H Nominees Pty Ltd, which trades as Phoenix Patios (respondent), had breached the contract between them dated 30 November 2017 (the Contract) for it to supply and install a patio at the applicant's property in Spearwood (the HBWC Complaint).
The Building Commissioner referred the HBWC Complaint to the Tribunal pursuant to s 11(1)(d) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act).
The decision of the original Tribunal pursuant to s 43(1)(b) of the BSCRA Act was to decline to make an order against the respondent and consequently to dismiss the 14 items of complaint made by the applicant in that matter (Dismissal Decision).
The application for review is made under s 58(2) of the BSCRA Act, but s 58(5) of the Act provides that the Tribunal must give leave before the application for review can be made.
The application for leave to review was heard by Senior Member Aitken on 6 October 2023 and on 11 October 2023 he gave leave to review the Dismissal Decision limited to the issue of whether the respondent breached the Contract by not obtaining approval from the City of Cockburn for the works carried out by the respondent under the Contract (the Constructed Patio). Senior Member Aitken gave his reasons for that decision orally on 11 October 2023.
The matter was then referred to mediation, but that did not result in the resolution of the matter between the parties and the matter was listed for a directions hearing before Senior Member Aitken on 23 May 2024.
At that directions hearing the legal representative of the respondent stated that the respondent concedes that it breached the Contract by not obtaining approval from the City of Cockburn for the Constructed Patio (the breach of the Contract).[1]
[1] The respondent had obtained a building permit to construct a patio at the applicant's property prior to carrying out the works, but that building permit was not for the Constructed Patio.
As the result of that concession, the issue remaining to be determined by the Tribunal is what loss or damage the applicant has suffered by reason of the breach of the Contract and, consequently, what HBWC remedy order should the Tribunal make under s 43(1)(a) and s 41(2) of the BSCRA Act to compensate the applicant for that loss and damage. This will be dealt with below as Issue 2.
Prior to the final hearing, the respondent raised the issue of whether the Tribunal has jurisdiction to determine this matter. This will be dealt with below as Issue 1, because it is appropriate to deal with the question of jurisdiction, before dealing with the other issue.
For the reasons which follow, we have decided to make a HBWC remedy order pursuant to s 43(1)(a) and s 41(2)(d) of the BSCRA Act that the respondent pay the amount of $233.30 to the applicant as compensation for the breach of the Contract.

Issues

The issues to be determined in the proceeding are:
Issue 1: Does the Tribunal have jurisdiction to determine this matter? The respondent has raised two aspects of this issue. First, was the HBWC Complaint properly made to the Building Commissioner? Secondly, was the HBWC Complaint made to the Building Commissioner within time?
Issue 2: If the answer to Issue 1 is 'yes', what loss or damage has the applicant suffered by reason of the breach of the Contract and what HBWC remedy order should the Tribunal make under s 43(1)(a) and s 41(2)(d) of the BSCRA Act?

Expert conferral

The engineer expert witnesses, Mr Peter Airey for the applicant and Mr Phillip Scott for the respondent (Expert Witnesses), each prepared a report, both of which were filed with the Tribunal and are included in the hearing book referred to in [18] below.[2]
[2] Exhibit 1, pages 77 - 102 (Airey report) and pages 225 - 255 (Scott report).
The Expert Witnesses conferred with one another in the absence of the parties and their representatives before Senior Member Aitken and Senior Sessional Member Affleck on 7 February 2025 in accordance with orders made by Senior Member Aitken on 6 December 2024.
Following the conference of the Expert Witnesses they prepared and signed a joint statement (Experts' Joint Statement) in accordance with r 39B of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules). The Experts' Joint Statement sets out the issues arising in the proceeding which are within their expertise; the matters upon which they agree in relation to those issues; the matters upon which they disagree in relation to those issues; and the reasons for any disagreement.
The Experts' Joint Statement was admitted into evidence during the final hearing as part of the hearing book referred to in [18] below.[3]
[3] Exhibit 1, pages 262 - 270.

Final hearing

The Tribunal was constituted by Senior Member Aitken (a legally qualified senior member of the Tribunal) and Senior Sessional Member Affleck (an experienced civil and structural engineer and registered builder senior sessional member of the Tribunal) for the final hearing which was held on 26 and 27 March 2025.
The following documents were received into evidence and marked as exhibits:
•Exhibit 1: Hearing book prepared by the Tribunal, consisting of 270 pages.
•Exhibit 2: Contract between the parties dated 30 November 2017 for the price of $11,850.00, consisting of one page.
•Exhibit 3: Email dated 23 January 2025 from Louise Priest, Team Leader Complaints, Building and Energy to the respondent's legal representative and the applicant in response to email dated 10 January 2025 from the respondent's legal representative to Building and Energy Complaints, consisting of three pages.
•Exhibit 4: Contract between the parties dated 30 November 2017 for the price of $9,900.00, consisting of one page.
•Exhibit 5: Phoenix Patios Site Plan, consisting of one page.[4]
•Exhibit 6: Email dated 30 January 2018 from Heather Olden to the applicant, consisting of one page.
•Exhibit 7: Photograph consisting of one page.
•Exhibit 10 - Bundle of documents and photographs, consisting of 26 pages.
[4] This is the same plan as Supporting Document 1 listed in the Barron certificate of construction compliance.
Two video recordings which had been submitted by the applicant were played:
•Exhibit 8: Video recording made on 22 April 2018 (First Video).
•Exhibit 9: Video recording made on 28 July 2021 (Second Video)
The following persons gave oral evidence:
•The Expert Witnesses, who gave their evidence concurrently in accordance with r 39C of the SAT Rules.
•Mr Ante Pesich, an inspector with Building and Energy.
•The applicant.

Issue 1: Does the Tribunal have jurisdiction to determine this matter?

As we have already noted, the respondent has raised two aspects of the issue of whether the Tribunal has jurisdiction to determine this matter. First, was the HBWC Complaint made properly to the Building Commissioner? Secondly, was the HBWC Complaint made to the Building Commissioner within time?

Was the HBWC Complaint made properly to the Building Commissioner?

The respondent contends that the applicant did not meet the 'threshold requirements' to make a complaint to the Building Commissioner because he did not pay the full amount of the prescribed fees when he lodged the complaint form with the Building Commissioner. In support of this contention the respondent refers to the decision of the Tribunal in The Owners of 52 Mill Point Road Strata Plan 62152 and Hanssen Pty Ltd [2021] WASAT 102 (The Owners of 52 Mill Point Road).
We do not accept the respondent's contention for the following reasons.
The decision of the Tribunal in The Owners of 52 Mill Point Road dealt with a situation where the complainant strata company paid the lodgement fee, but did not submit the electronic complaint form to the Building Commissioner due to the failure by the person who was intending to lodge it to click a 'submit' button after they had completed the payment part of the lodgement process. That attempt to lodge the complaint occurred on the date on which the time limit for making the complaint expired. Several days later the lodgement fee was refunded because the complaint form had not been lodged. When the strata company subsequently lodged the complaint form and authorisation for payment of the lodgement fee the Building Commissioner refused to accept the complaint because it was out of time. The strata company then made an application to the Tribunal for leave to review the decision of the Building Commissioner to refuse to accept the complaint. That application was unsuccessful for the reasons given in The Owners of 52 Mill Point Road.
In this case the Building Commissioner accepted the applicant's complaints and referred them to the Tribunal in the following circumstances.
The email dated 23 January 2025 sent by Ms Louise Priest (Team Leader Complaints, Building and Energy) to the applicant and the respondent's legal representative (Mr S Lieberfreund), which is Exhibit 3 states the following:
•On Friday 18 December 2020 the applicant lodged, via email, a complaint form for a home building work contract complaint and a building service complaint.
•On Monday 21 December 2020 the department's cashier processed the complaint lodgement fee in the amount of $204.
•The complaint form submitted by the applicant was an old form with outdated complaint fee amounts listed. As from July 2019 the fee was $119.00 each for building service complaints and home building work contract complaints. Therefore, an additional $34 was requested from the applicant on 23 December 2020, which was paid by the applicant during the Christmas/New Year period, and it was processed by the department's cashier on 6 January 2021.
•There was no complaint fee refund associated with the matter.
•The building service complaint was not withdrawn.
In our view, the applicant made both a building service complaint and a home building work contract (HBWC) complaint to the Building Commissioner regarding the Constructed Patio. He did not pay the full fees for those complaints when he lodged them, but when he was advised of the shortfall, he paid it and subsequently the Building Commissioner accepted the complaints.
Section 7(1) of the BSCRA Act provides that after receiving a complaint the Building Commissioner must decide whether, and to what extent, to accept it or to refuse to accept it.
Section 7(2) allows the Building Commissioner to make such inquiries as are appropriate before making that decision.
Section 7(3) allows the Building Commissioner to refuse to accept a complaint if any of seven circumstances exist, including if the complaint is not made in accordance with the BSCRA Act.
Sections 9 and 10 of the BSCRA Act provide for an investigation of the complaint to be carried out and a report of the investigation to be prepared and given to the Building Commissioner.
Section 11(1) of the BSCRA Act requires the Building Commissioner to consider the investigation report and to dismiss the complaint, commence a conciliation proceeding, deal with the complaint under s 37 (if it is a building service complaint) or s 42 (if it is a HBWC complaint), or refer the complaint to the Tribunal.
In our view, the Building Commissioner, having referred the complaints to the Tribunal, must have been satisfied that the complaints had been made in accordance with the BSCRA Act. Accordingly, we do not accept the respondent's contention that the complaint was not properly made to the Building Commissioner.
At some stage after the complaints were received by the Tribunal the applicant clearly abandoned the building service complaint and pursued only the HBWC complaint. At the outset of the final hearing in the original proceeding the applicant made it clear that his complaint was a contract complaint, and the hearing proceeded on that basis. The fact that the applicant did not pursue the building service complaint has no bearing on this aspect of Issue 1.

Was the HBWC Complaint made to the Building Commissioner within time?

The respondent says, correctly, that the HBWC Complaint had to be made no more than 3 years after the cause of action arose.[5]
[5] Section 6(3)(b) of the BSCRA Act.
The respondent says, correctly, that a cause of action arises on the date of a breach of a contract.
The respondent contends that it breached the Contract when it made an application to the City of Cockburn on 11 December 2017[6] for a building permit for a patio which did not accord with the patio it was contracted to build for the applicant and the cause of action arose on that date. The respondent says that this is because the obligation in the Contract to obtain approval from the City of Cockburn required the respondent to make an application for a building permit for the patio which they were contracted to build.
[6] Exhibit 1, pages 200 - 204.
The respondent contends that the cause of action did not arise when the City of Cockburn issued the building permit on 4 January 2018 (the Building Permit)[7] because the City of Cockburn was not a party to the Contract and only the actions, or inactions of a contracting party can result in the breach of contract. The respondent contends that 'all of the essential elements' of the breach of the Contract occurred when the respondent lodged an 'erroneous' application for a building permit.
[7] Exhibit 1, pages 193 - 195.
The respondent contends that the 3 year limitation for the applicant to make the HBWC Complaint expired on 11 December 2020, being 3 years after the date on which the respondent says the cause of action arose, which was prior to the date on which the HBWC Complaint was made, whether the date on which the HBWC Complaint was made was 18 December 2020 (when the complaint form was lodged) or 6 January 2021 (when the balance of the lodgement fees were paid).
In Wyloo Metals Pty Ltd v Quarry Park Pty Ltd [2021] WASC 356 at [137(b)] Tottle J refers to a cause of action being construed broadly as 'the fact or combination of facts which gives rise to the right to sue'.
In our view, the cause of action arose when the respondent commenced construction of the patio for which it did not have a building permit.
It was agreed during the final hearing that construction of the patio commenced on 14 February 2021.
Although the respondent had obtained a building permit on 4 January 2018 to construct a patio, which was not the patio to be constructed pursuant to the Contract, in our view, it was open to the respondent to make another application for a building permit for the patio to be constructed pursuant to the Contract prior to commencing the construction of the patio.
Therefore, in our view, the cause of action arose on 14 February 2018 when the respondent commenced the construction of the patio without a building permit for the patio it was constructing.
Our view is consistent with the provisions of s 9 of the Building Act 2011 (WA) (Building Act), which provides that it is an offence to commence building work unless a building permit is in place for the building work.
Our view is also consistent with the email to the applicant from Mr Gary Briggs-Bradford, Acting Manager of Building, City of Cockburn dated 7 May 2024,[8] which states: '[s]hould a builder wish to change the manner of construction or the construction generally, they are required to lodge a new building permit application for the new works prior to the commencement of those works'.
[8] Exhibit 1, page 28.
Accordingly, in our view, the cause of action arose on 14 February 2018 and the HBWC Complaint was made within the 3 year limitation period, regardless of whether it was made on 18 December 2020 or 6 January 2021.
Therefore, we do not accept the respondent's contention that the HBWC Complaint was made out of time.

Decision on Issue 1

Having decided that we do not accept the respondent's contention that the complaint was not properly made to the Building Commissioner or that it was made out of time, we have decided that the Tribunal has jurisdiction to determine this matter.

Issue 2: What loss or damage has the applicant suffered by reason of the breach of the Contract?

The legal principles with respect to damages for breach of contract

It is well established[9] that the 'ruling principle' with respect to damages at common law for breach of contract is that as stated by Parke B in Robinson v Harman (1848) 1 Exch 850, 855 (Robinson v Harman):
The rule of the common law is, that where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed.
[9] Morton Seed & Grain Pty Ltd v Phillbourne Manufacturing Pty Ltd [2018] WASC 386 [496] (Morton), citing Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8; (2009) 236 CLR 272 [13].

In our view, the principles at common law should be applied to the determination of the compensation to be awarded to the applicant under s 43(1)(a) and s 43(2)(d) of the BSCRA Act for the loss or damage caused to the applicant by the breach of the Contract.
The applicant bears the legal burden of proving loss or damage arising from the breach of the Contract.[10]
[10] Summit Rural (WA) Pty Limited v Lenane Holdings Pty Ltd [2024] WASCA 122 [123].
The applicant must take all reasonable steps to mitigate his loss consequent upon the breach of the Contract. The applicant cannot recover losses that could have been avoided if reasonable steps on his part would have prevented those losses from arising.[11]
[11] Morton [499].
The standard of reasonableness involves a consideration of what a reasonable person in the circumstances of the applicant would have done to avoid further loss. Whether the applicant has acted reasonably or unreasonably, in not taking steps which would operate to decrease loss, is a question of fact, depending on the circumstances of the individual case. In cases where it is contended that the applicant should have taken steps which would have mitigated loss, the onus of proof is on the respondent to prove this contention.[12]

The parties' positions on Issue 2

[12] Morton [500].

The applicant relies on the legal principle we have referred to in [50] above and says that he has incurred costs (loss and damage) because of the respondent's breach of the Contract.
The applicant says that the Constructed Patio has so many flaws that it could not be approved by the City of Cockburn in its current state. The applicant says that the Constructed Patio needs to be rebuilt under the house gutters to prevent flooding under the area covered by the patio and impact and damage to the house. He says that the incorrect pitch on the roof of the Constructed Patio is causing pooling of water on the patio roof adding to the weight load on the house.
The applicant is seeking orders that the respondent first, at its cost, remove the Constructed Patio and return the patio area to its prebuilt condition; secondly, pay to him compensation for costs of $23,433 to replace the Constructed Patio; thirdly, pay to him 'punitive damages for stress and time wasted pursuing justice for over 6 years [of] $10,000'; and fourthly, pay to him his expert and legal costs and disbursements.
The first, second and third aspects of the applicant's claim might be able to be dealt with by the making of a HBWC remedy order. We said at the outset of the final hearing that we will deal with the question of costs (the fourth aspect of the applicant's claim) after we have dealt with the question of what HBWC remedy order we should make under s 41(2) and s 43(2)(a) of the BSCRA Act. Costs are dealt with under s 67 of the BSCRA Act, rather than under s 41and s 43 of the Act.
The respondent contends that the applicant has not established that the loss or damage claimed by him has been caused by the breach of the Contract; that is, that but for the failure by the respondent to obtain a building permit for the Constructed Patio the applicant would not have suffered the loss and damage he is claiming.
The respondent says there is no evidence to establish that the Constructed Patio needs to be demolished. The respondent says that the Expert Witnesses agree that there are no structural issues with the design or construction of the Constructed Patio. The respondent says that the only real disagreement between the experts, which is relevant to the matter, is the pitch of the patio roof.
The respondent contends that the evidence of Mr Scott, both in his report and orally during the final hearing, was that the roof pitch complies with the National Construction Code (NCC).
The respondent also says that the patio the subject of the quote the applicant is relying on for his claim of $23,433 to replace the Constructed Patio has no bearing to the patio which the respondent contracted to build for the applicant.
The respondent further says that there is no evidence to establish the applicant's claim of $10,000 for stress and wasted time, nor that it meets the requirements set out in Baltic Shipping v Dillon (1993) 176 CLR 344, because the Contract was not a 'contract for enjoyment'.
In closing oral submissions, counsel for the respondent, Mr Lieberfreund referred to a letter he sent to the applicant dated 22 May 2024.[13] The letter says that the respondent concedes that it breached the Contract by not obtaining approval from the City of Cockburn for the Constructed Patio and the usual measure of damages for the breach of a contract is to place the innocent (non-breaching) party in the position they would have been in if the contract had been followed (i.e. not been breached).
[13] Exhibit 1, pages 30 - 31.
The letter goes on to say that there is a 'mechanism' provided in s 51 of the Building Act for 'retrospective approval' to be granted by a local government for a structure which has been built either not in compliance with or in the absence of a building permit. The letter says that Mr Briggs-Bradford from the City of Cockburn suggests that the appropriate course of action is for an application to be lodged with the City for a building approval certificate accompanied by a certificate of building compliance issued by an independent building surveyor.
The letter enclosed an application for a building approval certificate (Form BA13)[14] and a certificate of building compliance (Form BA18) dated 19 March 2024,[15] signed by Mr Raymond Paul Barron (Mr Barron), a registered building surveying practitioner, with supporting documents required under reg 36(2)(b) of the Building Regulations 2012 (WA) (Building Regulations) (Barron certificate of building compliance).[16]
[14] Exhibit 1, pages 180 - 182.
[15] Exhibit 1, pages 183 - 42.
[16] Exhibit 1, pages 180 - 223.
The letter explains that Mr Barron is an independent building surveyor, but that if the applicant does not want to use that certificate, the respondent will pay the reasonable costs for the applicant to obtain a certificate from another building surveyor. The letter also says that the respondent will pay reasonable costs incurred by the applicant in completing the application and any application fees charged by the City of Cockburn (the respondent's 22 May 2024 proposal).
The applicant has not taken up the respondent's 22 May 2024 proposal.

Has the applicant taken all reasonable steps to mitigate his loss consequent upon the breach of the Contract?

The question which arises from respondent declining to take up the respondent's 22 May 2024 proposal is whether the applicant has taken all reasonable steps to mitigate his loss consequent upon the breach of the Contract. As we have already stated, the applicant cannot recover losses that could have been avoided if reasonable steps on his part would have prevented those losses from arising.[17]
[17] See [53] above.
To determine whether the applicant has taken all reasonable steps to mitigate his loss consequent upon the breach of the Contract we need to consider whether it is possible for the applicant to obtain a building approval certificate under s 51 of the Building Act (retrospective approval) for the Constructed Patio.
In our view, a reasonable person in the circumstances of the applicant would apply for retrospective approval for the Constructed Patio if it is possible to obtain that retrospective approval. This is because the breach of the Contract was the failure of the respondent to obtain a building permit for the Constructed Patio and obtaining retrospective approval will avoid the need to remove the Constructed Patio and then obtain a building permit before constructing a replacement patio.
If we decide that it is not possible for the applicant to obtain retrospective approval then, in our view, the applicant will not have acted unreasonably in not taking up the respondent's 22 May 2024 proposal. If we reach this decision, we will proceed to determine the compensation to be awarded to the applicant on the basis that there has not been any failure by him to mitigate his losses arising from the breach of the Contract.
If we decide that it is possible for the applicant to obtain retrospective approval then, in our view, the compensation to which the applicant will be entitled will be limited to the cost to the applicant of obtaining retrospective approval.

The evidence of the Expert Witnesses

Before we consider the question of whether it is possible for the applicant to obtain retrospective approval for the Constructed Patio we will consider the evidence of the Expert Witnesses.
The Expert Witnesses are both highly experienced civil and structural engineers.
The Experts' Joint Statement sets out eight issues on which they conferred during their conference of experts on 7 February 2025:
(1)General;
(2)Patio Roof Pitch;
(3)Patio Barge Flashing (down into house gutter);
(4)Patio Fixings in Sheet Pans (and Corrosion);
(5)House Gutter Replacement;
(6)House Gutter Flooding;
(7)House Gutter Levels; and
(8)House Gutter Conduit Partial Blockage and Dip.
Issues 5, 6, 7 and 8 are not relevant to this proceeding, because this proceeding is only concerned with the question of what loss or damage the applicant has suffered by reason of the breach of the Contract (by the respondent not obtaining approval from the City of Cockburn for the Constructed Patio). The house gutter is not part of the Constructed Patio and was the subject of another complaint made by the applicant against the respondent.
Regarding issue 1 (General) the Expert Witnesses agree that the design and construction of the Constructed Patio is structurally adequate.
Regarding issue 2 (Patio Roof Pitch) the Expert Witnesses agree that the pitch of the Constructed Patio roof is approximately 0.65 degrees. They agree that this varies from the 2 degree pitch nominated in the Scott & Associates design, the manufacturer's recommended pitch of 2 degrees (maximum sheet length 24 metres) and the National Construction Code (of which Volumes 1 and 2 constitute the Building Code of Australia) (NCC) 'Deemed To Satisfy' specification of 3 degrees for trapezoidal roof sheeting. The Expert Witnesses disagree regarding whether alternative assessment is possible under 'expert judgment' for the purposes of the NCC. We will deal with the evidence of the Expert Witnesses on this point below.
Regarding issue 3 (Patio Barge Flashing - down into house gutter) the Expert Witnesses agree that the patio barge edge flashing turns down into the house gutter along its shared junction with an anticapillary bend over a length of approximately 9 metres, but for the last 1 metre at the west end it has been trimmed off to give flashing clearance off the bottom of the house gutter. The Expert Witnesses disagree in the Experts' Joint Statement whether this satisfies the NCC. We will deal with the concurrent oral evidence of the Expert Witnesses on this point below.
Regarding issue 4 (Patio Fixings in Sheet Pans and Corrosion) the Expert Witnesses agree that the main Tek screws anchoring down the Bondor roof panels are correctly located on the roof sheet crests. The experts also agree that smaller stitching Tek screws are in the roof pans, which is not the normally accepted location for roofing screws, but this is the standard fixing location of the Bondor gutter/facia given in the Bondor product manual. The Expert Witnesses disagree in the Experts' Joint Statement about the suitability of these screws. We will deal with the concurrent oral evidence of the Expert Witnesses on this point below.

The Patio Roof Pitch Issue

It is important to note that the issue regarding the roof pitch of the Constructed Patio is about its capacity to shed rainfall to the patio gutter. There is no issue about the structural adequacy of the patio roof.[18]
[18] See [78] above.
There are two aspects of the patio roof pitch:
•Roof capacity under design rainfall event.
•Roof capacity under wind.

Roof capacity under design rainfall event

Mr Airey says that the method used by Mr Scott to calculate the capacity of the patio roof to convey runoff to the patio gutter (the Manning formula) is a formula which is for larger flows of water in other contexts and does not take into account viscosity of water for minimum flows or the effect of wind on the flow of water in the context of the patio roof.
In Part 1.0 (Application) of the NCC Volume 2, clause 1.0.5 (c) 'Expert Judgment' is an assessment method that can be used to determine that a 'Performance Solution or Deemed-to-Satisfy Solution' complies with 'Performance Requirements'.
'Expert Judgmen' is defined in Part 1.1 (Interpretation) of the NCC Volume 2 as meaning 'the judgment of an expert who has the qualifications and experience to determine whether a 'Performance Solution or Deemed-to-Satisfy Solution' complies with 'Performance Requirements'.
The NCC requires that details of the Performance Solution, including all relevant plans and other supporting documentation must be prepared and retained. That must include details of the relevant 'Performance Requirements' and the Assessment Method used to establish compliance with the relevant Performance Requirements.
Whilst not rejecting the view of Mr Airey that the Manning Formula is a formula used for larger flows of water in other contexts, we accept the view of Mr Scott that the patio roof has significantly more capacity than the design storm event.
We are satisfied that Mr Scott exercised 'Expert Judgment' for the purposes of the NCC in arriving at his conclusion that the patio roof pitch of 0.65 degrees is acceptable as set out in Supporting Document 6 with reference to a '20 year design storm' as specified in Australian Standard AS3500.3.2018.

Roof Capacity under Wind

Mr Airey contends that the Manning Formula does not take into account the effect of wind on the flow of water in the context of the patio roof. However, he has not provided any calculations in support of his opinion.
The Expert Witnesses agreed the video recordings show flooding from the house gutter along the junction of the house with the patio and that the source of that water was the house roof rainfall runoff. Mr Airey said that he agreed with Mr Scott on this because the video recordings do not show the water which was cascading down being blown horizontally.
Mr Airey did not refer to any evidence which shows that the patio roof has failed to adequately convey water runoff to the patio gutter.
In the absence of any evidence of the patio roof leaking under the effects of wind, and Mr Scott's expert judgment based on his calculations, we are satisfied that the roof pitch of the Constructed Patio of 0.65 degrees is acceptable.

The leaking from the house gutters

The cause of the water leaking from the house gutter is not an issue which we are required to determine in this proceeding because the house gutter is not part of the Constructed Patio.
However, we will make some observations on this issue because during the final hearing the applicant made the point strongly that the leaking of water from the house gutter hampers his enjoyment of the area under the patio and that, in his opinion, this demonstrates that the Constructed Patio has not been built correctly.
It is clear from the video recordings played during the final hearing (Exhibits 8 and 9) that on occasions significant amounts of water overflow from the house gutters into the area underneath the Constructed Patio.
The evidence of the Expert Witnesses is that:
•The cause of the house gutter leaking is that the gutter does not fall adequately to the downpipes and the gutter is partially blocked by electrical ducts.
•The lack of fall is attributed to a combination of:
(i)the sag at the ends of the hips and valleys due to long term creep in the timber, accounting for about 24 mm of adverse fall; and
(ii)the deflection of the rafter ends due to additional imposed weight of the patio, accounting for about 4 mm of adverse fall.
•There are electrical ducts placed across the house gutter in two locations because of electrical work which the applicant has had performed after the Constructed Patio was completed. Mr Scott says that this has contributed to a reduction in the cross section of the house gutter by as much as 20 mm.
•The sag due to long term creep, plus the sag due to imposed load, plus the electrical duct obstruction totals 24 mm plus 4 mm plus 20 mm, equalling 48 mm and since the gutter is only 67 mm deep this leaves very little freeboard in which to accommodate the rainfall runoff flow from the house roof.
•There is no evidence of water being blown back upslope on the patio roof by the wind.
We conclude that the water leaking from the house gutter shown in the video recordings is not attributable to the design or construction of the Constructed Patio.

The Patio Barge Flashing Issue

In the Experts' Joint Statement, the Expert Witnesses disagreed about the need for an anti-capillary bend in the 1 metre section at the west end of the patio barge edge flashing along its shared junction with the house gutter.
However, during the concurrent oral evidence of the Expert Witnesses Mr Airey agreed with Mr Scott that the fact that the gutter and the flashing run at 30 degrees to each other is an alternative solution for the purposes of the NCC.[19] Therefore, in our view, there is no issue of the patio barge flashing not complying with the NCC.

The Patio Fixings in Sheet Pans Issue

[19] ts 97, 26 March 2025.

In the Experts' Joint Statement, the Expert Witnesses disagreed about the suitability of the smaller stitching screws holding the flashing/gutter in place.
During the concurrent oral evidence of the Expert Witnesses, they agreed that four of the 31 smaller stitching screws are corroded. Mr Scott attributed this to a microenvironment issue, such as bird droppings, but Mr Airey's view was that the usual expectation for this sort of fixing is that it should be 20 years before first maintenance should be necessary.
In answer to a question from Senior Member Aitken, Mr Airey stated that the use of these products in the Constructed Patio does not fall short of the requirements of the NCC.[20] Therefore, in our view, there is no issue of the patio fixings in the sheet pans not complying with the NCC.
[20] ts 101 - 105, 26 March 2025.

The legislative requirements for retrospective approval

Section 51 of the Building Act provides that a person may apply for building approval certificate for a building or incidental structure which has been constructed without a building permit.
Section 54(1) of the Building Act provides that an application for a building approval certificate must be made in an approved manner and form and be signed by the owner of the land on which the building or incidental structure is located.
Under reg 4 of the Building Regulations the Building Commissioner has approved Form BA13 as the application for a building approval certificate.
Section 54(3) of the Building Act provides that an application for a building approval certificate must be accompanied by a certificate of construction compliance which complies with s 57 of the Building Act.
Section 57(1) of the Building Act provides that a certificate of construction compliance must be in an approved form and signed by a building surveyor.
Under reg 4 of the Building Regulations the Building Commissioner has approved Form BA18 as the certificate of construction compliance.
Section 57 of the Building Act sets out what is to be contained in a certificate of construction compliance, which includes the things required under reg 36 of the Building Regulations.
Regulation 36(2)(b) of the Building Regulations requires that a certificate of construction compliance include plans and specifications that show how the building complies with each building standard that applies to the building or incidental structure.

Does the respondent's 22 May 2024 proposal satisfy the legislative requirements for retrospective approval?

The application for building approval certificate and the Barron certificate of construction compliance included in the respondent's 22 May 2024 proposal are in accordance with the approved Form BA13 and Form BA18 respectively.
The Barron certificate of building compliance states that the building standards applicable to the Constructed Patio are the National Construction Code (Volume 2) (NCC).
The Barron certificate of construction compliance is signed by Mr Barron, who is a building surveyor (registration number 35).
Included in the Hearing Book is a witness statement of Mr Barron, to which is attached the application for building approval (BA13), certificate of building compliance (BA18) and the supporting documents required under reg 36(2)(b) of the Building Regulations, listed in the certificate.[21]
[21] Exhibit 1, pages 178 - 223.
In his witness statement Mr Barron states that, based on those documents he formed the opinion that the Constructed Patio complies with the NCC on the basis that the NCC is performance based, which means that 'where performance is demonstrated there can be modifications to standards and acceptable construction practice'.
The supporting documents listed in the Barron certificate of construction compliance (Supporting Documents) are as follows:
(1)Phoenix Patios Site Plan limited to a plan view of the Constructed Patio showing patio plan dimensions (Supporting Document 1).[22]
(2)Phoenix Patios Site Plan, showing the plan view of the site including the outline of the house and patio and, at below the plan view, two elevations of the patio and portion of the house, being a side view and an end view (Supporting Document 2).[23]
(3)Solarspan Technical Data Sheet (Supporting Document 3).[24]
(4)Scott & Associates Inspection Report dated 20 April 2018 and Scott & Associates 'Retrospective Solarspan Flat Patio' drawing dated 20 April 2018, which includes a Member Schedule and Column C1, which is plan view showing the structural layout of the Constructed Patio (Supporting Document 4).[25]
(5)Scott & Associates Inspection Report dated 18 July 2018 (Supporting Document 5).[26]
(6)Scott & Associates letter dated 13 February 2019 confirming that the as constructed patio 0.64 degrees roof slope is hydraulically adequate, with hydraulic design calculation and calculation sheets (Supporting Document 6).[27]
(7)Scott & Associates letter dated 19 March 2019 confirming that the column splice and revised footing anchorages as per the attached Phoenix Patios sketch dated 8 May 2018 is structurally adequate (Supporting Document 7).[28]
(8)Alternative Column Hold Down Detail certified by Phillip W Scott (Supporting Document 8).[29]
[22] Exhibit 1, page 212.
[23] Exhibit 1, page 213.
[24] Exhibit 1, page 223.
[25] Exhibit 1, pages 210 and 211.
[26] Exhibit 1, page 214.
[27] Exhibit 1, pages 219 - 223.
[28] Exhibit 1, pages 215 - 217.
[29] Exhibit 1, page 218.
The Barron certificate of construction compliance, under the heading of 'Any other information relevant, which has been relied on for compliance', refers to the City of Cockburn Building Permit B17/2579 and the documentation related to that building permit, which includes Scott & Associates typical details, S1, S2 and S3 applicable to Solarspan Flat Roof Patio – Open 2 or 3 Sides, N1 Wind Classification (Supporting Document 9).[30]
[30] Exhibit 1, pages 193 - 209.
During the final hearing the applicant contended that the supporting documents do not represent what was built in the Constructed Patio, referring to the following:
(a)In Supporting Document 2, on the northern edge of the Constructed Patio, the column at the top of the dotted line was not installed in that position but was relocated to miss the steps of the house.
(b)In the sketch in Supporting Document 7, at the base of the column the 100 x 50 x 2.0 plate with 4 x M12 Tek screws was not installed and instead a wall mounted plate was installed with Tek screws.
(c)In Supporting Document 8 the ChemiAnchors, which are drawn as being splayed, were installed straight up and down vertically.
In his oral evidence during the final hearing Mr Pesich said that, in his opinion, an application for retrospective approval must contain 'as constructed' drawings and that the Supporting Documents do not represent what was built. However, when asked to state the specific errors in the Supporting Documents, Mr Pesich was unable to do so.
We have considered the Supporting Documents, and we are satisfied that the Supporting Documents meet the requirements of reg 36(2)(b) of the Building Regulations for the following reasons:
(a)The purpose of reg 36(2)(b) of the Building Regulations is to ensure that there is a record of what was built, and that each applicable building standard has been satisfied, as assessed by a registered building surveyor.
(b)The discrepancies between the Constructed Patio and the Supporting Documents referred to by the applicant are of minor or no consequence and are no more than the sorts of changes and adjustments to design that occur with every building project.
(c)The totality of the drawings contained in the Supporting Documents reflect what has been constructed.
(d)The use of 'typical details/standard details' is a widely used and accepted practice, which is evident in this case where the City of Cockburn issued the Building Permit with the Scott & Associates typical details, S1, S2 and S3 which were relied upon by the City's building surveyor who signed the certificate of design compliance in respect of the respondent's application for that building permit.[31]
(e)Supporting Document 6 confirms the adequacy of the roof slope of the Constructed Patio.
(f)Mr Pesich, by his own admission, is not a building surveyor and, therefore not qualified to give an expert opinion on whether the Barron certificate of construction compliance satisfies the legislative requirements.
[31] Exhibit 1, pages 196 - 199.
Accordingly, we find that the respondent's 22 May 2024 proposal satisfies the legislative requirements for retrospective approval.

Decision on Issue 2

As we have stated above, in our view, a reasonable person in the circumstances of the applicant would apply for retrospective approval for the Constructed Patio if it is possible to obtain that approval.
We have found that the respondent's 22 May 2024 proposal satisfies the legislative requirements for retrospective approval and, therefore, it is possible for the applicant to obtain retrospective approval for the Constructed Patio.
Consequently, in our view, by not taking up the respondent's 22 May 2024 proposal the applicant has not taken all reasonable steps to mitigate his loss consequent upon the breach of the Contract by the respondent. Accordingly, the compensation to which the applicant will be entitled is the cost to him of submitting the application for a building approval certificate, with the Barron certificate of building compliance and supporting documents listed in that certificate.
According to the City of Cockburn website the fee payable for an application for a building approval certificate is a fee of 0.38% of the estimated value of works, with a minimum fee payable of $110.00, plus a building services levy of 0.274% of the value of the works, with a minimum levy of $123.30 and a construction training fund levy of 0.2% of the value of the works if that is $20,000.00 or more.
We consider that the appropriate estimated value of the Constructed Patio for the purposes of the application for a building approval certificate is $11,850.00 (being the price in the Contract). Therefore, the application fee will be the minimum fee of $110.00 and the building services levy will be the minimum levy of $123.30 and there will not be a construction training fund levy payable. The total fee payable for the application for a building approval certificate for the Constructed Patio will be the amount of $233.30 and we will order that the respondent pay this amount to the applicant within 14 days pursuant to s 43(1)(a) and s 41(2)(d)(i) of the BSCRA Act.

The applicant's claim for 'punitive damages for stress and time wasted pursuing justice for over 6 years [of] $10,000'

Section 41(2)(d)(i) of the BSCRA Act gives the Tribunal the power to make a HBWC remedy order to compensate a person for loss or damage caused by a breach of a home building work contract.
In Suri and Beyond Builders Pty Ltd [2024] WASAT 20 at [122] - [127] the Tribunal found that a party to a home building work contract cannot be compensated under s 41(2)(d)(i) of the BSCRA Act for nonfinancial loss or damage, such as emotional harm or personal injuries.
We respectfully adopt that finding and, accordingly decline to make a HBWC remedy order in respect of the applicant's claim for 'punitive damages for stress and time wasted pursuing justice for over 6 years [of] $10,000', because the Tribunal does not have the power to deal with such a claim under s 41(2) and s 43(1) of the BSCRA Act.

Costs

As we have stated above,[32] we will deal with the question of costs now that we have decided what HBWC remedy order we will make.
[32] See [58].
We will make orders allowing each party to apply for their costs and for any application/s for costs to be determined on the documents.

Orders

We will make the following orders:
The Tribunal orders:
1.Pursuant to s 43(1)(a) and s 41(2)(d)(i) of the Building Service (Complaint Resolution and Administration) Act 2011 (WA) the respondent must pay the amount of $233.30 to the applicant on or before 17 July 2025.
2.Pursuant to s 43(1)(b) of the Building Service (Complaint Resolution and Administration) Act 2011 (WA) the Tribunal declines to make any other HBWC remedy order.
3.Each party has liberty to apply for their costs of the proceeding by filing (lodging) with the Tribunal and giving to the other party the following documents on or before 17 July 2025:
(a)a schedule of the costs claimed in sufficient detail to enable the Tribunal to fix any costs which might be awarded, together with any supporting documents upon which the party wishes to rely; and
(b)written submissions stating the basis upon which it is contended costs should be awarded and the basis upon which the amount of costs claimed is calculated.

4.If either party makes an application for costs pursuant to order 3 above, the other party may file (lodge) with the Tribunal (and, if so, must also give to the party which has applied for costs) written submissions opposing the application for costs by 31 July 2025.
5.If either party or both parties makes an application for costs, subject to any further order, the Tribunal will determine the application entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) after 31 July 2025 and will fix the amount of any costs awarded in the same determination.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR D AITKEN, SENIOR MEMBER
3 JULY 2025