BARTHOLOMEUSZ and HARRIS
[2020] WASAT 77
•22 JULY 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION: BARTHOLOMEUSZ and HARRIS [2020] WASAT 77
MEMBER: MS R PETRUCCI, MEMBER
MR R EASTON, SENIOR SESSIONAL MEMBER
HEARD: 15 MAY 2020
DELIVERED : 22 JULY 2020
FILE NO/S: CC 1890 of 2019
BETWEEN: ROLAND BARTHOLOMEUSZ
Applicant
AND
LEE HARRIS
Respondent
Catchwords:
Building Services (Complaint Resolution and Administration) Act 2011 (WA) - Regulated building service complaint - Whether building service not carried out in a proper and proficient manner or is faulty or unsatisfactory - Whether order to remedy or order to pay is appropriate - Application for costs - Turns on its own facts
Legislation:
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(1), s 6(1), s 7(1), s 9(1), s 10, s 11(1), s 11(1)(d), s 36, s 38, s 49, s 49(1), s 51
Building Services (Complaint Resolution and Administration) Regulations 2011 (WA), reg 5
State Administrative Tribunal Act 2004 (WA), s 9, s 46(1), 46(2), s 87(1), s 87(2), s 87(6)
Result:
Application partly successful
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | In Person |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Brodun Construction and Love [2008] WASAT 174
Gemmill Homes Pty Ltd v Sanders [2018] WASC 179
J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S)
Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S)
Nelson v Mardesic (1998) 22 SR (WA) 42
Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [No 2] [2008] WASAT 302
Sanders and Gemmil Homes Pty Ltd [2017] WASAT 41
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
This is an application under the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act).
Mr Roland Bartholomeusz (the owner or applicant) is the owner of 3 Graelou Road, Lesmurdie (the property).
On 25 May 2019, the owner lodged a complaint against Mr Lee Harris, (the builder or respondent), who trades under the name, 'Harris Asbestos Removal' with the Building Commissioner regarding the removal of asbestos cement material (A.C.M.) roof sheeting and the installation of Colorbond roof sheeting at his property. In his complaint, the owner stated:
Mr Harris has failed to complete all the work he agreed on, relating to roof super six asbestos removal and a colourbond roof replacement. He has also taken inordinately long, 4months, to get to where we are at present, near completion, having commenced the work in the first week of January. I owe Mr Harris a balance of $2000- which I am not willing to pay until the work is completed. I have told him that if he is unwilling to complete the work I will have others do so and deduct those costs from what I owe him, assuming those costs are less than $2,000-. The outstanding work, detailed in the 'notice of proposed complaint' includes, replacement of two metal chimney flues, the sealing of down pipes which presently leak, as well as a gutter. The alignment of a portion of ridge capping, the replacement of the solar panel array, the completion of some roof flashing and some gutter guard. After 14 days, when Mr Harris failed to respond I sent him a letter (see attachment) terminating our contractual understanding. I have had some urgent work, such as the completion of reinstallation of chimney flues done and receipts are available. At this stage I am unsure of how far I should proceed with having the other work completed and would appreciate the assessment of the situation by a Builder to help determine what is inadequate workmanship, for a job which to date has cost me some 25 to 26 thousand dollars. On 22/5, the same day when Mr Harris is likely to have received my termination letter sent by registered mail I received a cheeky SMS on my mobile phone stating 'Need you to sort out Your bill before we return”. I have not replied to this. I have however sent him a backup email of the termination letter previously posted with all the previous correspondence scanned in.
On the 11 June 2019 a delegate of the Building Commissioner (Building Commissioner) accepted the owner's complaint (C1174074) comprised of 15 complaint items as follows (the complaints):
•sealing of downpipes to prevent water leaking between joints
•water leaking between gutter and timber fascia on south face
•ridge capping on west end has a bulge
•the apex barge boards at western end of the roof do not match and are untidy
•the barge boards used on the northeastern portion of the two storey roof appears to have been previously damaged
•the end of the gutter at the south-eastern aspect of the single story roof retains water to a depth of at least 1 centimetre after the rest has drained
•gutter on the north-east aspect of the single storey has inadequate fall for water drainage and incomplete gutter guard
•solar panel array was not replaced
•replacement of two chimney flues
•disconnection and reconnection of roof electrical fittings and hot water plumbing
•damage (dents) to at least six Colorbond roof sheets on the single storey roof
•unwanted and inappropriate downpipe on north facing gutter relating to complaint item 7
•internal air vent in family room damaged during the demolition phase and not replaced
•two external roof air vents in two upstairs bedrooms
•under eave battens (timber eaves trim) on part of the northwest face of the single storey roof were not replaced
On 24 June 2019 the builder disputed all of the owner's complaints. In addition, the builder alleged that he is owed more than $8,000 by the owner and that some of the complaint items were not in the 'agreed scope of works'. The builder stated in part:
… even if they [the complaint items] were my responsibility [they] would only come to a few hundred dollars which is a marginal portion in consideration to what is outstanding by the [owner] to my business.
The above residence is literally the house that Jack built and is located in the hills where foundations are unstable at the best of times. Over its 40 years of existence, the wear and tear are substantial and I believe that the [owner] is unreasonable to expect perfection when the foundations are not perfect.
On 20 November 2019, the Building Commissioner in discussion with the builder noted:
… due to other outside issues he has not provided a response … nor has he submitted a contractual complaint to B & E for alleged monies outstanding.
He indicated the items of complaint would only come to a few hundred dollars, the complainant [the owner] had his whole roof replaced and that the complainant owes him money the complainant [the owner] would not be able to agree to anything[.]
On 3 December 2019 the Building Commissioner decided, pursuant to s 11(1)(d) of the BSCRA Act to refer the complaint to the Tribunal for determination. The reason for the referral was stated as follows:
The matter is of a nature in which the evidence is contested and more appropriately dealt with by the State Administrative Tribunal.
The hearing and evidence before the Tribunal
On 9 December 2019, the Tribunal made its usual orders programming the matter through to a final hearing. The builder did not attend the directions hearing, however the Tribunal was satisfied that the builder had received the notice of the directions hearing for 9 December 2019. The orders required the owner and the builder to complete a Scott Schedule and to provide a copy of all 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. Further, the parties were ordered to provide a list of the witnesses including contractors whom they intended to call at the final hearing to give evidence including costings evidence.
A further directions hearing was held on 10 March 2020 where again the builder did not attend. The Tribunal made an order that if the builder wanted to participate in the proceedings he may request a directions hearing by making that request by 24 March 2020. No such request was made by the builder.
The owner filed his documents with the Tribunal. The builder did not file any documents.
The evidence before the Tribunal comprised a hearing book (Exhibit 1) which included the referral from the Building Commissioner and the owner's documents.
Both the owner and the builder attended the final hearing on 15 May 2020 by telephone and gave evidence. In the Tribunal's view, both the owner and the builder were not entirely reliable witnesses. However, despite the builder's argumentative nature, the Tribunal found he had a degree of honesty in conceding quite a number of points whereas the owner did not concede anything.
The owner called Mr Wayne Jones to give evidence as an expert witness. Mr Jones attended the hearing by telephone.
Mr Jones reported that he has been employed in the construction and education sectors in Western Australia since 1986 and that he has been a registered builder since 1999. Further, Mr Jones stated that he is currently the Chief Executive Officer of a private training organisation, the Institute of Building Technology Western Australia Pty Ltd which trades as 'Builders Training of Western Australia'. Mr Jones prepared a report entitled 'Independent Building Report' (IBR) dated 17 January 2020 following a visual inspection of the property (pages 95 to 123 of Exhibit 1). Mr Jones did not limit his report to the complaints.
Mr Jones answered questions put to him by the owner and the builder. He also answered questions from the Tribunal in relation to the owner's complaints. He gave his evidence reasonably and in a considered manner.
The builder did not call anyone to give evidence as an expert witness or any contractors to give costings evidence.
The Tribunal heard the matter on 15 May 2020 following which the decision was reserved.
The facts
The Tribunal makes the following findings of fact. They are uncontroversial:
(a)The builder is the owner of the registered business name, Harris Asbestos Removal (page 88 of Exhibit 1).
(b)On 14 December 2018, the builder by email wrote to the owner stating (page 56 of Exhibit 1):
We will remove and dispose of asbestos roof 2 sections 224m2, vacuum & spray pva solution.
Fit and supply insulation (wool) & anticond (sic) insulation blanket 50mm
Colourbond, new facia's (sic).
Gutters and down pipes.
We would start on the 2nd january (sic) 2019 and finish no later than the 16th.
We would do the roof in 3 sections so we have a stable footing.
We would like to come back tomorrow morning
To discuss style of gutter and down pipes and double check measurements to have order read for monday (sic).
(c)On the same date, the owner replied by email to the builder stating (page 56 of Exhibit 1):
Yes you can come back tomorrow morning (as early as 6.00 am if you wish).
Regarding the completion date it needs to be the 15th Jan, as my wife has reminded me that we are flying out on the 16th.
As per our discussion the total sum for asbestos removal, materials and labour will be no more than $21,000.00.
I am prepared to pay for the materials and provide a progress payment, with the balance on completion.
If you are happy with these terms, please confirm and the job is yours.
(d)In the second week of January 2019 the owner and builder verbally agreed for the builder to undertake additional works being the removal and replacement of the asbestos ceiling on the lower roof. This additional work was to be completed in a five week period before the owner returned from overseas (pages 86 to 87 of Exhibit 1).
(e)On 18 April 2019, the builder acknowledged receipt of $1,700 from the owner. This comprised cash of $700 and $1,000 by direct bank transfer. The receipt noted that $2,000 was outstanding (page 87 of Exhibit 1).
(f)On 30 April 2019 the owner sent an email to the builder in which he stated amongst other things that if he did not receive an encouraging response from the builder by the Thursday of that week that he would lodge a complaint with Consumer Protection (page 84 of Exhibit 1).
(g)On 3 May 2019 the owner sent to the builder a 'Notice of proposed complaint' setting out 15 items of complaint (pages 49 to 52 of Exhibit 1).
(h)On 22 May 2019, the owner wrote to the builder terminating their 'contract of understanding' (contract). The owner stated in part (page 83 of Exhibit 1):
This is to notify you that your failure to respond to my communications of complaint of 3/5/19 and 7/5/19, relating to your work at 3 Graelou Rd, Lesmurdie, is resulting in my terminating our contract of understanding described in those communications. This means that you will not receive the $2,000 outstanding and a formal complaint will now be lodged with the appropriate government authorities (Department of Mines. Industry Regulation and Safety).
(i)On 25 May 2019, the owner submitted his complaint of 15 items with the Building Commissioner (pages 40 to 48 of Exhibit 1).
(j)On 8 July 2019, the builder issued to the owner tax invoice ZC7246035 for $8,275.50 with the notation 'removal & disposal of A.C.M. fibre cement ceiling 163m2'. It is written on the tax invoice that $2,000 for the 'roof' is still outstanding (page 58 of Exhibit 1).
(k)The owner engaged Mr Jones to inspect the works identified by the owner as unsatisfactory and or faulty workmanship. Mr Jones provided the IBR to the owner on 17 January 2020. Mr Jones charged the owner $880 for the IBR (page 139 of Exhibit 1).
Summary of each party's positon
The owner seeks a monetary order from the Tribunal requiring the builder to compensate him for the cost to have the unsatisfactory works remedied as set out on pages 113 and 114 of Exhibit 1. Finally, the owner seeks costs of $1,560 for the IBR and attendance at the final hearing by Mr Jones. The owner stated that he does not want the builder to attend to the remedial work because the quality of his work is poor and because of the builder's personality, which the owner says was displayed at the final hearing.
The builder strongly asserted that any remedial works required would only come to a few hundred dollars and that some of the work complained of was not within the scope of work that formed the contract. The builder opposed any order requiring him to undertake any remedial work or to pay any monetary amount to the owner. This is because, according to the builder, he is the victim, whereby the owner has almost shut down the builder's business because the owner kept on adding to his list of things to be done in the contract but without payment including putting in chimney flues. Further, the builder stated that the owner still owes him $8,275.50. Finally, the builder said if he was required to undertake remedial work for the owner, he explained that he is not really well enough as he is still recovering from an arm operation in December 2019 and that he no longer has any employees. However, the builder said he could organise for someone to do the remedial work on his behalf. The builder strongly stated that he would not pay anything to the owner because he is owed over $8,000.
The issues
The following issues require determination by the Tribunal:
1)What is the scope of the building works under the contract?
2)Has the regulated building service, the subject of each item of complaint been carried out in a manner that is not proper or proficient or which is faulty or unsatisfactory?
3)If 'yes', should the Tribunal make a building remedy order, and if so, is the appropriate remedy a remedial work order or an order for payment of the costs of carrying out the necessary remedial work, and if the latter, what amount should be awarded?
4)Should the owner be entitled to an order for costs for recovery of his expert witness fees?
The law
Subject to the BSCRA Act, a person may make a complaint within certain time limits to the Building Commissioner, including about a regulated building service not being carried out in a proper and proficient manner or being faulty or unsatisfactory (s 5(1) and s 6(1) of the BSCRA Act and reg 5 of the Building Services (Complaint Resolution and Administration) Regulations 2011 (WA) (Regulations).
Having accepted a regulated building service complaint (s 7(1) of the BSCRA Act), the Building Commissioner is required to cause an investigation to be carried out and, after having regard to any report given under s 10 of the BSCRA Act, may refer the complaint to the Tribunal for it to deal with under s 38 of the BSCRA Act (s 3, s 9(1) and s 11(1) of the BSCRA Act).
The Tribunal may then make a building remedy order if it is satisfied that the regulated building service has not been carried out in a proper or proficient manner or is faulty or satisfactory (s 38(1) of the BSCRA Act). A building remedy order is defined in s 36(1) of the BSCRA Act and includes an order that a person who carried out a regulated building service to remedy the faulty or unsatisfactory work as set out in the order (s 36(1)(a) of the BSCRA Act). It also includes an order to pay to an aggrieved person a sum of money to compensate the aggrieved person for the builder's failure to carry out the building service in a proper and proficient manner or for faulty and unsatisfactory building work (s 36(1)(c) of the BSCRA Act). Section 36(2) of the BSCRA Act provides that a building remedy order may require the order to be complied with within a time specified in the order.
If the Tribunal finds that the regulated building service was defective or incomplete, a party to the proceedings does not have the option as to whether the builder undertakes those works: GemmillHomes Pty Ltd v Sanders [2018] WASC 179 (Gemmill).
Consideration by the Tribunal
Contract
Before considering the complaints, it is first necessary to understand what the scope of works was under the contract.
The owner explained that the builder attended the property on or about 14 December 2018 following which he sent the following email (page 56 of Exhibit 1):
From our phone conversation this morning
We will remove and dispose of asbestos roof 2 sections 224m2, vacuum & spray pva solution.
Fit and supply insulation (wool) & anticond (sic) insulation blanket 50mm
Colourbond, new facia's (sic).
Gutters and down pipes.
We would start on the 2nd january (sic) 2019 and finish no later than the 16th.
We would do the roof in 3 sections so we have a stable footing.
We would like to come back tomorrow morning
To discuss style of gutter and down pipes and double check measurements to have order read for monday (sic).
The owner said he agreed with the following reply by email to the builder on 14 December 2018 (page 56 of Exhibit 1):
Yes you can come back tomorrow morning (as early as 6.00 am if you wish).
Regarding the completion date it needs to be the 15th Jan, as my wife has reminded me that we are flying out on the 16th.
As per our discussion the total sum for asbestos removal, materials and labour will be no more than $21,000.00.
I am prepared to pay for the materials and provide a progress payment, with the balance on completion.
If you are happy with these terms, please confirm and the job is yours.
There does not appear to be written confirmation from the builder, however the owner said both parties signed a copy of the above emails and that the same piece of paper was used as a 'running sheet' for the progress payments. There does not appear to be any dispute that the builder commenced works at the property on or about 2 January 2019.
At hearing, the owner said he paid for the materials which meant therefore the labour component of the agreement was about half, or $11,000, for the external roof work. The owner said he requested the builder to do further work, comprised of removing and disposing of about 160m² of the internal fibre cement ceiling on the lower roof which he says the builder agreed to do for $1,500 but with his approval it increased to $2,500 for labour and that he would pay for all the materials. The builder disputed that he agreed to do the work on the lower roof for $2,500. Rather, he said that work is reflected in invoice ZC7246035 which sets out the amount of $6,275.50 which the builder says is still outstanding. The builder said this amount of $6,275 is in addition to the $2,000 which the builder says the owner still owes him in regards to the external roof work. The owner does not dispute he owes the builder $2,000 for the external roof work. However, the owner strongly stated that he had a limited budget and because of that he would never have agreed for the builder to undertake the works on the lower roof for an amount in excess of $2,500. The owner says the builder issued the invoice, which was the first invoice issued to him, shortly after he lodged his complaint with the Building Commissioner.
The builder explained that his business is to remove and dispose of asbestos. In this case, the builder said the owner kept wanting and adding things to be done which were not in the contract, such as replacement of chimney flues and the moving of the solar panels. It came to a head when on 29 April 2019 the builder said he had 'had enough' and left the property following disagreement with the owner regarding a chimney flue replacement. The builder said that he explained to the Building Commissioner that the items of complaint from the owner only added up to a few hundred dollars as the job was almost complete apart from about four hours work and that in any event the owner owed him money. Finally, the builder said he has not lodged a complaint with the Building Commissioner for the alleged moneys of $8,275 that he says he is owed.
The Tribunal finds that the contract was comprised of two jobs one external to the house (the roof job) and the other to the lower roof of the house (the ceiling job). Further, the Tribunal finds that the contract was part written as evidenced by emails (page 85 of Exhibit 1) and part agreed by the parties orally. For the roof job, the Tribunal finds that the parties agreed for the builder to remove and dispose of the asbestos on the roof with an area size of about 224m² and then to install a Colorbond roof along with new fascias, gutters and downpipes for $21,000. This was varied whereby, at the direction of the builder, the owner purchased and supplied the materials. This meant the roof job was reduced to essentially a 'labour' only job plus disposal of the asbestos which on the evidence of the owner was about half, or about $11,000. It is common ground that the ceiling job was agreed to orally by the parties for the removal and disposal of the internal fibre cement ceiling with an area size of about 160m². The owner's evidence is that the builder originally agreed to do the ceiling job for $1,500 but that was adjusted to $2,500 for labour only and that the owner would pay for all materials. The builder refuted that stating if he agreed to do the job for $2,500 that would equate to $15 per square metre and he would not do the work at that rate. The builder said the ceiling job would have been about $10,000 and the invoice (page 58 of Exhibit 1) reflects the labour cost and disposal of the asbestos for $6,523.50 or $38 per square metre.
The issue of amounts owed under the contract is not before the Tribunal and therefore cannot be determined in the current proceedings. However, the Tribunal notes that the parties may want to discuss and privately agree what amount, if any, is still payable by the owner to the builder under the contract. Another option the builder may want to consider is to lodge his complaint with the Building Commission in regards to the moneys that he alleges is owing to him under the contract. This will require the builder to issue a notice of proposed complaint to the owner and to satisfy the requirements of the BSCRA Act for complaints which includes lodging the complaint within a strict timeframe.
The Tribunal turns, next, to work through each of the complaint items listed by the owner in the Scott Schedule (pages 132 to 138 of Exhibit 1).
Complaints
Complaint item 1 Sealing of downpipes to prevent water leaking between joints
The owner said that there are six downpipes leaking which require repair. The owner referred to Mr Jones' IBR (pages 95 to 123 of Exhibit 1).
Mr Jones stated that the photographs (pages 99 to 100 of Exhibit 1) were taken on 17 January 2020 when it was not raining. However, he said the water leaks between most of the joints are evident from a physical inspection of the downpipes as shown in the photographs. Further, Mr Jones stated that in his opinion the downpipe sections leak because they were incorrectly installed when the additional length of downpipe was added. He said the installation was not in accordance with Australian Standard 'Gutter and Downpipe Provisions for Housing' AS 3.5.2.5. Mr Jones recommended that new downpipe sections with bends be installed and that the sleeving of the downpipe sections to all leaking downpipes be rectified (pages 99 to 100 of Exhibit 1).
The builder accepted that this complaint is within the 'scope of works' of the contract. Further, the builder stated that he has previously verbally stated that he is willing to finalise what is within the 'scope of works' as quoted if the owner pays the outstanding invoice (page 22 of Exhibit 1). The builder accepted that the downpipes need to be sealed with silicon. However, the builder does not agree that the downpipes were not installed properly.
The Tribunal finds that the sealing of the downpipes to prevent water leaking between the joints is not proper or proficient or is faulty or unsatisfactory and is to be remedied.
Complaint item 2 Water leaking between gutter and timber fascia on south face
The owner stated that he installed some aluminium flashing hanging over the gutter which appears to have stopped the water leaking. However, the owner stated that after the inspection there was a storm which caused another section of the gutter to leak and there is leaking between the timber and the gutter. The owner said he tried to fix it. The owner said he thinks that there is not enough overhang of the sheeting onto the gutter. The owner referred to Mr Jones' IBR (page 132 of Exhibit 1).
Mr Jones reported that Alcor (a bituminous impregnated alloy material) flashing was installed to the back of the high side gutter. Mr Jones reported there were no signs of water leaks that were evident on the date of inspection. He concluded that due to the lack of details in the scope of works, he was not able to comment any further.
The builder repeated his position for this complaint item is the same as for complaint item 1. That is, the builder accepted that this work was within the 'scope of works' and will finalise what is within the scope of works when the owner pays to him the amount owing which was in excess of $8,000 (page 22 of Exhibit 1).
The Tribunal finds that the water leaks between the gutter and timber fascia on the south face is not proper or proficient or is faulty or unsatisfactory and is to be remedied.
Complaint item 3 Ridge capping on west end has a bulge
The owner says there is a bulge which the builder told him to put some bricks on to smooth out the bulge. The owner noted that after some months the bulge had reduced in size but is still visible.
Mr Jones found that the ridge flashing is uneven along the horizontal plane on the lower roof. Further, he reported that the Colorbond surface was poorly and incorrectly repaired with an aerosol type touch up paint that had discoloured the Colorbond. The flashing fixing was also said to be incomplete according to Mr Jones. Mr Jones recommended that a new ridge flashing to the damaged area be installed (page 102 of Exhibit 1).
The builder accepted that he installed the apron flashing. The builder said this was done with the approval of the owner. It was installed, according to the builder, because the roof was not totally square. He said 'it was quite a mission to make everything marry up'. Further, the builder said there is a 9m² difference from one side of the building to the other. He said nothing was square on the house and using an analogy the builder said 'you cannot make raspberry jam out of horse manure'. The builder accepted that he may have used touch up paint which he purchased from the Colorbond shop. At the end of the day, the builder said, 'it is a roof and not a dance floor' and while he accepted there may be small blemishes, other contractors engaged by the owner could have easily put dents in the roof. The builder repeated his position for this complaint is the same as for complaint item 1 (page 22 of Exhibit 1).
In reply, the owner said the apron flashing was needed to prevent ingress of water under the ridge cap. However, the owner could not say if it worked as there has not been much rain. The owner said he did not order the apron flashing material but did order on request of the builder the other materials.
The Tribunal finds that the ridge capping on the west end has a bulge which is not proper or proficient or is faulty or unsatisfactory and is to be remedied.
Complaint item 4 The apex barge boards at the western end of the roof do not match and are untidy
The owner says he expected a better match of the apex barge boards and he asked the builder to fix it. He referred to Mr Jones' IBR.
Mr Jones reported that the installed barge flashing is not neat and is incorrect as evidenced in the photograph (page 103 of Exhibit 1). Further, Mr Jones reported that the roof sheeting of the lower roof elevations is misaligned by approximately 20 millimetres and that the ridge capping appears to be unfinished. Mr Jones said that when things are not square, a qualified tradesperson would massage out the misalignment. Mr Jones stated that the alignment and connection of the apex point needs to be neat and tidy and not misaligned. Mr Jones recommended remedial work be undertaken to improve the roof sheeting alignment and the flashings in order to meet the installation requirements (page 103 of Exhibit 1).
The builder accepted that the flashing needs to be adjusted and it was a job he had planned to do in the four hours he estimated to complete the job. The builder repeated his position for this complaint is the same as for complaint item 1 (page 22 of Exhibit 1).
The Tribunal finds that the apex barge boards at the western end of the roof do not match and are untidy which is not proper or proficient or is faulty or unsatisfactory and is to be remedied.
Complaint item 5 The barge board used on the northeastern portion of the two storey roof appears to have been previously damaged
The owner says there are two substantial dents on the barge board. He does not think that he should have to put up with the damage. The owner suggested that the barge board was previously damaged in another location (page 45 of Exhibit 1).
Mr Jones reported that a barge board is missing at the gable end. He stated that the barge flashing is damaged and is incomplete due to inadequate fixing as the prescribed spacing for the barge flashing does not meet Australian standard AS 1562.1 section 4. Mr Jones recommended that the flashing be replaced (page 104 of Exhibit 1). Mr Jones said the photograph on page 104 of Exhibit 1 shows creases (diagonal lines) in the barge board from handling. He noted the location of the fixings is high and the spacing is inadequate.
The builder said the creases were due to wind damage and that the more fixings put in, the more the barge board will crease. He said even if it is replaced the same problem will occur because the mortar and brickwork of the house is not aligned.
The Tribunal finds that the barge board on the northeastern portion of the two story roof is not proper or proficient or is faulty or unsatisfactory and is to be remedied.
Complaint item 6 The end of the gutter at the southeastern aspect of the single storey roof retains water to a depth of at least 1 centimetre after the rest has drained
The owner stated that water accumulates to a depth of at least one centimetre before it begins to drain (page 45 of Exhibit 1). Originally he had asked for two downpipes to be considered. However, in the process of installing the gutter, the owner said that the builder assured him that there would be enough fall for drainage. The owner said water still collects at that end but he has been told that having 10 millimetres of water is acceptable. The owner said he noted there is water leaking between the gutter and the wall and in order to stop that he had put some flashing under the sheeting and it hangs over the gutter (as set out under an earlier complaint). The owner said that right from the start he had explained to the builder that he had this problem with the Super Six asbestos where water accumulated and that he wanted to avoid the same problem.
Mr Jones reported that the gutter installation is incomplete and recommended the gutter be rectified in accordance with the BuildingCode of Australia Vol 2 Part 3.5.2.4(b)(i) (page 105 of Exhibit 1) which requires adequate gutter clips to be installed.
The builder said he was aware of this issue, however, in his view gutter clips could not be used in the area although the gutter did require a bit of a tweak.
The Tribunal finds that the retention of water in the end of the gutter at the southeastern aspect of the single storey is not proper or proficient or is faulty or unsatisfactory and is to be remedied.
Complaint item 7 Gutter on the northeast aspect of the single storey has inadequate fall for water drainage and incomplete gutter guard
The owner stated that the gutter had a downpipe installed in the wrong spot. Subsequently when the builder moved the downpipe to the correct position, the gutter was twisted in part and there is still not adequate fall in the gutter. Further, the owner said the functional downpipe has a kink in it and he is left with a dummy downpipe which he did not request. Further, the owner stated that there is an inadequate fall for water drainage and an incomplete gutter guard (page 46 of Exhibit 1).
Mr Jones reported that the gutter installation is incomplete and recommended the gutter be remedied with an adequate fall (page 106 of Exhibit 1). The gutter was similar to the other complaint where there was lack of gutter clips. Mr Jones said that a few gutter clips were required to complete the job.
The builder said the gutter guard was about 100 millimetres short and therefore he accepts that it needed to be installed and a few gutter clips are needed to finish off the job. In regards to the false (or dummy) downpipe, the builder said he did not want it in that spot but the owner kept changing his mind. The builder said in the end the owner was happy with the positioning of the downpipes.
The Tribunal finds that the gutter on northeast aspect of the single storey has inadequate fall for water drainage and an incomplete gutter guard which is not proper or proficient or is faulty or unsatisfactory and is to be remedied.
Complaint item 8 Solar panel array was not replaced
The owner explained that the solar panel array was not replaced as promised by the builder. The owner says that an initial effort was made by the builder but the solar panel array was located in a different position and the frame was removed leaving unwanted holes in the roof. The builder's attempts to locate the solar panel array in the correct positon resulted in boot dents in a number of sheets (refer to complaint item 11). The owner seeks a reduction of $300 from the amount of $2,000 he owes to the builder rather than the replacement of the solar panel array as previously discussed with the builder. This is because the owner says that four months passed without him having access to solar power and therefore his electricity bill increased as compared to the same period the previous year (pages 26 to 28, 46 and 129 of Exhibit 1).
Mr Jones made no comment regarding this complaint item.
The builder stated that this work was not within the 'scope of works' and was not quoted for (page 22 of Exhibit 1).
The Tribunal finds this work was not part of the contract and therefore declines to make a building remedy order pursuant to s 38(1) of the BSCRA Act and the complaint is dismissed pursuant to s 46(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
Complaint item 9 Replacement of two chimney flues
The owner stated that despite the builder agreeing to replace the two chimney flues, when the time came to replace the chimney flues, the builder claimed he was not licensed to do the work. He said the builder cut one hole and partly replaced one chimney flue but not the other. The owner seeks the reimbursement for the cost of getting a plumber to finish the work to install the two chimney flues (page 46 and pages 129 to 130 of Exhibit 1).
Mr Jones made no comment regarding this complaint item.
The builder stated that the replacement of the two chimney flues was not within the scope of works and was not included in the 'quote' because 'the old materials would not have been safe, and were a health hazard'. Further, the builder said this was explained to the owner (page 22 of Exhibit 1).
Again, the Tribunal finds this work was not part of the contract and therefore declines to make a building remedy order pursuant to s 38(1) of the BSCRA Act and the complaint is dismissed pursuant to s 46(2) of the SAT Act.
Complaint item 10 Disconnection and reconnection of roof electrical fittings and hot water plumbing
The owner accepted that this was not discussed with the builder in their contract as he saw it as 'part of a contractor's [builder] responsibility'. The owner said that the builder explained to him that his principal worker, 'Paul' could do the work. He said that he decided to call in a 'professional electrician and plumber' to do the work as the builder had a 'somewhat caviler (sic) attitude to occupational health and safety' and that he got the impression that the builder 'had bitten off more than he could chew' in taking on this job (page 130 of Exhibit 1). The owner seeks the costs of the roof hot water plumbing, electrical disconnections and reconnections (page 130 of Exhibit 1).
Mr Jones made no comment regarding this complaint item.
The builder stated that this work was not within the 'scope of works'.
Again, the Tribunal finds this work was not part of the contract and therefore declines to make a building remedy order pursuant to s 38(1) of the BSCRA Act and the complaint is dismissed pursuant to s 46(2) of the SAT Act.
Complaint item 11 Damage (dents) to at least six Colourbond roof sheets on the single storey roof
In response to the builder's reply to his complaint, the owner in his statement of 30 June 2019, stated that the builder's first attempt to replace the base frame for the solar panel array resulted in unwanted holes in the new roof sheets as the builder placed it in a location other than where it was supposed to go and that in his second and partial attempt the builder left 'at least three dents' in the roof sheets near the gutter (page 16 of Exhibit 1). The owner referred to photographs on pages 71, 72, 106 and 107 of Exhibit 1 to show the dents. Separately, in his complaint schedule to the Building Commissioner the owner stated that the damage to the Colourbond roof sheets 'probably resulted from workers walking on unsupported areas' (page 47 of Exhibit 1).
Mr Jones reported that the roof sheeting on the lower southern and northern elevation is incomplete, has dents, lacks fixings, has a discoloured surface treatment, has overtightened tek screws, has an incorrect sheeting overhang into the gutters, and requires the valley (pan) to be fixed at the ridge along most of the northern elevation. He was not able to verify if there were any dents under the solar panels. Mr Jones recommended that the defects in the roof sheeting be rectified to ensure the overhang meets the Building Code of Australia Part 3.5.1 (pages 111 to 112 of Exhibit 1). To complete the remedial work, Mr Jones said it was difficult to quantify the number of sheets. However, he said at hearing there are at least six sheets requiring removal, although he was not able to identify the particular six sheets.
The builder accepted that some of the dents on the new roof sheets may belong to him but that the owner and other contractors could easily have put the dents in the roof sheets. The builder noted that at least two other people including the owner went on the roof to inspect the two chimney flues. He questioned why the owner would hammer out or replace the dented roof sheets when they are under the solar panels (approximately six sheets are under the solar panels). The owner replied that the dents are on both sides of the roof sheets. He said the photograph of the dents on page 72 of Exhibit 1 are covered up by the solar panels. However, the dents shown on page 107 of Exhibit 1 are not covered up.
Mr Jones referred to a number of issues including discoloured surface treatment which were not part of this complaint and therefore not considered by the Tribunal. The owner tried to blame the builder for all the dents on the roof sheets. The Tribunal finds that the owner's evidence was not complete and preferred the builder's evidence which was honest in stating that some of the dents on the roof sheets may belong to him.
The difficulty with this complaint item is that neither of the parties was able to identify which roof sheets required remedial work, other than Mr Jones who concluded in his evidence that there are six sheets requiring replacement. The Tribunal is not satisfied that the owner has established that the builder dented the roof sheets, and if the builder has dented some roof sheets, neither the owner (nor Mr Jones) has established which roof sheets were dented by the builder. It is up to the owner to adduce sufficient evidence to support his case that the dents on the new roof sheets were caused by the builder. On this basis, the Tribunal declines to make a building remedy order pursuant to s 38(1) of the BSCRA Act and the complaint is dismissed pursuant to s 46(2) of the SAT Act.
Complaint item 12 Unwanted and inappropriate downpipe on north facing gutter relating to item 7
The owner stated that the removal of the downpipe would require a patch in the gutter unless the gutter was replaced and the nail holes to the wall were patched (page 47 of Exhibit 1). He also stated that he previously agreed to leave the unwanted/dummy downpipe provided that there was adequate fall to the proper downpipe (page 47 of Exhibit 1). The owner, most recently in the Scott Schedule, stated that his preference is to have the downpipe removed and the gutter replaced so that there is an adequate fall to the functional downpipe which itself needs to be replaced due to leakage as set out in complaint item 1 (page 135 of Exhibit 1). At hearing, the owner stated that he wanted the functional downpipe installed properly.
Mr Jones reported that there were two downpipes in that short run. Mr Jones said that the scope of works was unclear and therefore he was not able to provide further comments. He was not clear if the downpipe was part of the contract (page 114 of Exhibit 1).
In response, the builder said the owner is just seeking costs for everything.
The Tribunal finds this work was not part of the contract and therefore declines to make a building remedy order pursuant to s 38(1) of the BSCRA Act and the complaint is dismissed pursuant to s 46(2) of the SAT Act.
Complaint item 13 Internal air vent in family room damaged during the demolition phase and not replaced
The owner explained that the internal air vent was damaged during the demolition phase but not replaced. The owner stated that this item has subsequently been repaired and replaced and that no further action is required (pages 48 and 138 of Exhibit 1). He is not seeking anything and withdraws this complaint.
Pursuant to s 46(1) of the SAT Act, the Tribunal gives leave for the owner to withdraw complaint item 13 and the complaint is withdrawn.
Complaint item 14 Two external roof air vents in two upstairs bedrooms.
At hearing, the owner stated that he withdraws this complaint (page 130 of Exhibit 1).
Pursuant to s 46(1) of the SAT Act, the Tribunal gives leave for the owner to withdraw complaint item 14 and the complaint is withdrawn.
Complaint item 15 Under eave battens (timber eaves trim) on part of the northwest face of the single storey roof were not replaced
The owner said this item of complaint does not relate to the roof job but it relates to the ceiling job. The owner stated that the battens were removed during the ceiling replacement but not replaced. He accepted that the battens played more of an aesthetic role rather than structural role, however, he still wants them to be replaced (page 48 of Exhibit 1).
Mr Jones reported that it was evident that the timber eaves trim was missing in some parts and installed in others as evidenced by the photograph on page 109 of Exhibit 1. Mr Jones stated that in his view the scope of works was unclear as to the extent of the eaves trim and the nominated lineal square metres required for installation. However, he recommended that remedial work was required for the timber eaves trim to be installed if that was agreed by the parties. Mr Jones explained that the eave is on the lower part of the building. The lower roof section has a run that is about 8m² long and the eaves trimmer was omitted which is inconsistent with the rest of the building.
The builder stated that this work was not within the 'scope of works' (page 22 of Exhibit 1). The builder said there were never any eaves trim in that part of the house.
The Tribunal finds this work was not part of the contract and therefore declines to make a building remedy order pursuant to s 38(1) of the BSCRA Act and the complaint is dismissed pursuant to s 46(2) of the SAT Act.
In conclusion, the Tribunal:
•finds the work the basis of complaint items 1, 2, 3, 4, 5, 6, and 7 was not carried out in a proper and proficient manner, or is faulty or unsatisfactory and is to be remedied;
•dismisses complaint items 8, 9, 10, 11, 12 and 15; and
•gives leave to the applicant to withdraw complaint items 13 and 14 and those complaints are withdrawn (and therefore not dealt with further by the Tribunal).
The Tribunal turns next to consider whether to make a building remedy order in respect of complaint items 1, 2, 3, 4, 5, 6 and 7 and, if so, what is the appropriate order.
Building remedy order
The owner seeks a monetary order stating that he does not want the builder to attend to the remedial work because the quality of his work is poor and because of the builder's personality, which the owner says was displayed at the final hearing.
The builder opposes any order requiring him to undertake any remedial work or to pay any monetary amount to the owner. However, the builder said if he was required to undertake remedial work for the owner, he explained that he only does small jobs as he is recovering from an operation to his arm in December 2019 and that he no longer has any employees, however, he could organise for someone to do the remedial work on his behalf.
The right to a building remedy order arises out of defects in the work the subject of the regulated building service. The Tribunal has found defect in the work the subject of complaints 1, 2, 3, 4, 5, 6 and 7 as set out above. Therefore, the Tribunal is required to exercise its discretion under s 38(1) of the BSCRA Act as to whether to make a building remedy order. It then has to exercise its discretion conferred under s 36(1) of the BSCRA Act to make a particular order in the form of s 36(1)(a), (b) or (c). The nature of the building remedy order made by the Tribunal is an important consideration. This is because there is significant difference between building remedy orders made under s 36(1)(a) and those made under s 36(1)(b) or s 36(1)(c) of the BSCRA Act. The difference is that there are advantages to the owner if the Tribunal makes an order under s 36(1)(a) which is not available under s 36(1)(b) or s 36(1)(c). The advantages include that an order under s 36(1)(a) provides the owner with the added protection that if the remedial work is not performed, or is performed in a faulty or unsatisfactory manner, the owner may seek an order under s 51 of the BSCRA Act which effectively allows for the 'conversion' of the an order requiring remedial work to be performed to a monetary order reflecting the costs of a third party performing that work. A further advantage of an order under s 36(1)(a) is that any ambiguity which may arise in relation to the issue of liability if the remedial work is itself faulty or unsatisfactory is avoided. Finally, an order under s 36(1)(a) may be advantageous because third party contractors are often reluctant to perform remedial works in respect of another builder's underlying work. It is, therefore, often difficult to obtain reliable evidence on the costing of remedial work on a third party basis, and if that costing is provided by an independent expert, as was in this case by Mr Jones, the expert is not available to do the remedial work (see Sanders and Gemmil Homes Pty Ltd [2017] WASAT 41 at [30] - [33]).
The Tribunal in considering what building remedy order to make has taken into account the following principles the Tribunal enunciated in Trengrove and Celebration Nominees Pty Ltd [2012] WASAT 65; (2012) 80 SR (WA) 77 (Trengrove) as set out in Gemmill at [33]:
…
(a)At the heart of the issue as to what order is appropriate is the question as to whether the relationship between the parties has irretrievably broken down. The fact that it is the builder asserting that the relationship has broken down does not matter. The principles equally apply whether it is a builder or an owner making the assertion. This is an important consideration for a number of obvious reasons, including the primary one, namely, to ensure some finality in litigation. If the Tribunal were to order remedial work in circumstances where the relationship between the parties has irretrievably broken down, it is likely not to result in finality of the disputes arising between those parties.
(b)The Tribunal looks to the relationship between the parties and whether the owner has lost confidence in the builder, the willingness or otherwise of the builder to perform remedial works, whether it has performed remedial works which have been unsatisfactory, whether the builder has been refused access, and whether, for example, the extent of the remedial work itself evidences perhaps a lack of competence or ability on the part of the builder which justifies the owner losing confidence in the builder's ability.
There is no right or requirement on a party to a complaint to elect the order(s): Gemmill at [131] and [135][139].
While the Tribunal notes the owner's concern regarding the quality of the builder's work, Mr Jones in his IBR, where he set out what action was required to remedy each defect, expressly stated that the respondent (the builder) was to undertake the rectification work. Mr Jones did not suggest that the builder was not competent to undertake the remedial work either in his report or in giving his evidence at the final hearing. Further, while the builder's personality may not be to the owner's liking, that is not, in the Tribunal's view, an irretrievable breakdown of the owner builder relationship and a personality difference is not in itself enough to not allow the builder the opportunity to undertake the remedial works. The statement made by the owner in his complaint to the Building Commissioner, on 7 May 2019 (page 42 of Exhibit 1) that he told the builder that 'if he [the builder] is unwilling to complete the work' that 'I [the owner] will have to do so' does not suggest the owner refuses to have the builder undertake the remedial work. The builder, although now only doing smaller jobs, stated that he could organise for someone to do the remedial work on his behalf. While the Tribunal accepts that there has been a breakdown in their relationship, which is a natural result of the dispute that has arisen between the owner and the builder, the Tribunal is not of the view that the breakdown is so irretrievable or at a stage where to require the builder to undertake the remedial work would result in ongoing dispute between them: Trengrove at [36].
In all of the circumstances of this case, the Tribunal concludes that it is appropriate to allow the builder the opportunity to undertake the remedial works. This will ensure the owner is fully compensated while at the same time minimising the hardship to the builder, given that the builder can usually carry out the remedial work at a cost less than would be charged by an third party contractor who would usually charge a premium for doing that work: Nelson v Mardesic (1998) 22 SR (WA) 42 at [46].
The Tribunal, finds, in its discretion to do so, that the appropriate remedy in this case is to make the following building remedy order under s 36(1)(a) of the BSCRA Act requiring the builder to carry out and complete all necessary work at the owner's property by 31 August 2020 so as to remedy the cause and effect of:
a)the leaking downpipes (complaint 1);
b)the water leaking between the gutter and fascia on the south side (complaint 2);
c)the bulge on the ridge capping on the west end (complaint 3);
d)the untidy and mismatch apex fascia at the western end of the roof (complaint 4);
e)the damaged barge flashing and missing barge board at the gable end on the northeastern portion of the two storey roof (complaint 5);
f)the retention of water in the end of the gutter at the southeastern aspect of the single storey roof (complaint 6); and
g)the inadequate fall for water drainage and incomplete gutter guard on the northeast aspect of the single storey (complaint 7)
in a proper and proficient manner and to make good any damage caused by complying with this order.
When making an order under s 36(1)(a), the Tribunal does not ordinarily specify a method of rectification unless it considers it appropriate or necessary to do so: Brodun Construction and Love [2008] WASAT 174 at [42]. In this case, the Tribunal does not consider it appropriate or necessary to do so.
Finally, the Tribunal turns to consider the owner's application for costs in these proceedings.
Costs
The owner claimed costs of $1,650 in regards to these proceedings.
It is useful to first set out how costs in relation to these proceedings are to be considered.
Section 87(1) of the SAT Act directs that unless otherwise specified in the SAT Act, the relevant enabling Act, or in any other order of the Tribunal made pursuant to s 87(2) to s 87(6) of the SAT Act, the parties bear their own costs in a proceeding of the Tribunal. However, s 87(2) of the SAT Act confers a discretionary power on the Tribunal to make an order for the payment of all or any of the costs of another party, unless specified to the contrary in the relevant enabling Act. Section 49 of the BSCRA Act (the enabling Act in this proceeding) relevantly provides:
(1)Subject to this section, the Building Commissioner or the State Administrative Tribunal may make such orders for costs as they think fit in relation to proceedings arising from a building service complaint or a HBWC complaint.
…
(7)This section does not limit the powers of the State Administrative Tribunal under the State Administrative Tribunal Act 2004 Part 4 Division 5.
Therefore, in substance, s 49 of the BSCRA Act, by conferring a broad unrestricted discretion on the Tribunal to award costs, appears to constitute a departure from s 87(1) of the SAT Act. This means in considering a claim for costs made pursuant to s 49(1) of the BSCRA Act, the Tribunal is not required to start from the position that each party bear its own costs. Having said that, it is well understood that costs do not follow the event at the Tribunal and the broad discretion conferred on the Tribunal is to be properly exercised by taking into account relevant considerations.
In Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 (Questdale) the following principles were set out in relation to cost applications:
(1)there is no presumption that a successful party is entitled to costs;
(2)the discretionary power is to be exercised judicially; that is not arbitrarily, capriciously or so as to frustrate the legislative intent;
(3)the power to award costs is to be exercised if it is fair and reasonable in all the circumstances of the case to do so;
(4)the onus is on the party seeking an order in its favour to establish that a favourable order ought to be made;
(5)the nature of the dispute is a relevant consideration in any application for costs;
(6)every party to a proceeding before the Tribunal is taken to be cognisant of the objectives of the Tribunal as expressly provided for in s 9 of the SAT Act. It is therefore necessary for the applicant to establish that the respondent's conduct has impaired the attainment of the Tribunal's objectives to have the proceedings determined fairly and in accordance with the substantial merits, with as little formality an technicality as possible and in a way which minimises the costs to the parties; and
(7)the mere fact that a party ultimately fails on a contention advanced during the course of the hearing does not, in itself, signify that the party has acted inconsistently with the objectives set out in s 9 of the SAT Act.
The procedures of the Tribunal are designed to achieve the objectives prescribed by s 9 of the SAT Act. Where an order for costs is made by the Tribunal, the Tribunal's obligation to minimise the costs to parties will be reflected in the costs assessed by the Tribunal as recoverable. That approach reflects an expectation that parties will approach proceedings in a way that minimises costs of the proceeding: J & P Metals Pty Ltd and Shire of Dardanup [2006]WASAT282 (S) at [38].
An award of costs is not intended to be a full indemnity for the actual expenses incurred by a party. The Tribunal has previously decided that, generally, an order for costs should be approached in a broad and relatively robust fashion: Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [No 2] [2008] WASAT 302 at [67] and Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S) at [49]. Even though fixing costs involves a relatively broad brush approach, the Tribunal must nevertheless be satisfied that the costs claimed are reasonable and not excessive in nature.
The owner claimed costs of $1,650 in these proceedings comprised of Mr Jones' attendance at hearing ($770) and his IBR ($880).
The builder opposed the owner's claim for costs. The builder said he is the victim and the owner owes him in excess of $8,000, of which the owner acknowledged at hearing that he owes the builder $2,000. The builder said he does not have the patience to deal with chasing the outstanding money. The builder said that 'two wrongs do not make a right'.
The Tribunal is of the view that it is appropriate in this case for the builder to be ordered to pay a portion of the owner's costs in these proceedings for two reasons. First, the owner was successful in regards to many of the complaint items against the builder. Secondly, the builder did not conduct himself in a way which minimised the costs to the parties. By the builder's very limited engagement with the Building Commissioner and with no attempt to resolve the dispute, the owner was forced to incur costs in engaging Mr Jones to investigate and report on the complaints and then to attend the final hearing before the Tribunal. The builder did not engage in these proceedings until the final hearing.
Taking a broad brush approach in a relatively robust fashion, the Tribunal considers that $500 ought to be recovered by the owner from the builder as reasonable and not excessive in nature. This will contribute to the owner's costs in engaging Mr Jones to investigate and report on the owner's complaints and to attend the hearing before the Tribunal. The Tribunal will therefore order the builder to pay to the owner $500 by 31 August 2020 pursuant to s 49 of the BSCRA Act and s 87(2) of the SAT Act.
For the reasons set out above, the Tribunal will make the following orders.
Orders
The Tribunal orders:
1.Pursuant to s 46(1) of the State Administrative Tribunal Act 2004 (WA) the applicant has leave to withdraw complaint items 13 and 14 and those complaints are withdrawn.
2.Pursuant to s 38(1)(b) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) the Tribunal declines to make an order for complaint items 8, 9, 10, 11, 12 and 15 and they are dismissed pursuant to s 46(2) of the State Administrative Tribunal Act 2004 (WA).
3.Pursuant to s 36(1)(a) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), on or before 31 August 2020, the respondent must carry out and complete all necessary work at the applicant's dwelling at 3 Graelou Road, Lesmurdie, Western Australia so as to remedy the cause and effect of:
(a)the leaking downpipes (complaint 1);
(b)the water leaking between the gutter and fascia on the south side (complaint 2);
(c)the bulge on the ridge capping on the west end (complaint 3);
(d)the untidy and mismatch apex fascia at the western end of the roof (complaint 4);
(e)the damaged barge flashing and missing barge board at the gable end on the northeastern portion of the two storey roof (complaint 5);
(f)the retention of water in the end of the gutter at the southeastern aspect of the single storey roof (complaint 6); and
(g)the inadequate fall for water drainage and incomplete gutter guard on the northeast aspect of the single storey (complaint 7)
in a proper and proficient manner and to make good any damage caused by complying with this order.
4.Pursuant to s 49 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) and s 87(2) of the State Administrative Tribunal Act 2004 (WA), the respondent shall by 31 August 2020 pay $500 to the applicant.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R PETRUCCI, MEMBER
22 JULY 2020
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