BELADINEJAD and UCPM PTY LTD - [2025] WASAT 52

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   BELADINEJAD and UCPM PTY LTD [2025] WASAT 52
MEMBER:   MS N EAGLING, MEMBER
MR J D ORR, SESSIONAL MEMBER

HEARD:   10, 11 AND 12 FEBRUARY 2025
DELIVERED          :   9 JUNE 2025
FILE NO/S:   CC 382 of 2024
BETWEEN:   SARA BELADINEJAD
Applicant
AND
UCPM PTY LTD
Respondent

Catchwords:

Building service complaint - Whether respondent carried out regulated building service - Cost plus contract - Whether complaint items constitute incomplete works - Exercise of discretion in making building remedy order - Costs of remedial work

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(1), s 5(2), s 11(1)(d), s 36, s 36(1), s 36(1)(b), s 38(1)(a), s 38(1)(b)
Home Building Contracts Act 1991 (WA), s 3

Result:

Application allowed in part

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	In Person

Solicitors:

Applicant	:	N/A
Respondent	:	N/A

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

Deshmukh and Distinctive Building Services Pty Ltd [2024] WASAT 15
Gemmill Homes Pty Ltd v Sanders [2018] WASC 179
Jetpoint Nominees Pty Ltd and Lee [2021] WASAT 10
Lee and Jetpoint Nominees Pty Ltd [2020] WASAT 62
Shami and Teo [2017] WASAT 73
Thorp and D2R Pty Ltd [2023] WASAT 64

REASONS FOR DECISION OF THE TRIBUNAL:

The applicant, Ms Sara Beladinejad (applicant), made a building service complaint to the Building Commissioner against the respondent, UCPM Pty Ltd (UCPM or respondent) under s 5(2) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act). The sole director of UCPM is Mr George Forrester.
The complaint arose from works allegedly carried out under a cost plus contract dated 6 July 2022 between the parties for the construction by the respondent of a single storey dwelling at the back of a block in Wembley Downs which the applicant owns and on which there was already an existing house.
The preliminary issue for the Tribunal is who 'carried out ' the building work the subject of each of the complaint items in this matter - specifically whether it was the applicant and her de facto partner, Mr Orlando Rad (together the applicants) or whether it was the respondent.
In relation to those complaint items where the Tribunal has found that the respondent did carry out the building work, it has gone on to consider whether those works were faulty or unsatisfactory and if so, the form of the building remedy order (BRO) which should be made.

Issues for determination

The issues for determination by the Tribunal are as follows:
(1)Did the respondent carry out a regulated building service in relation to all or any of the complaint items?
(2)Did the applicants take early possession of the site and if so, what impact if any does this have on determining whether the works are proper or proficient or faulty or unsatisfactory?
(3)If the answer to (1) is in the affirmative, has the respondent failed to carry out the building work the subject of the complaint items in a proper and proficient manner or is the work faulty or unsatisfactory?
(4)If the answer to (1) and (3) is in the affirmative, what is the appropriate form of the BRO (if any) in respect of each complaint item?

Statutory framework

Section 5(1) of the BSCRA Act relevantly provides that a person may make a complaint to the Building Commissioner about a regulated building service not being carried out in a proper and proficient manner or being faulty or unsatisfactory.
A complaint made under s 5(1) of the Act is defined as a 'building service complaint': s 3 of the BSCRA Act.
Where a building service complaint is referred to the Tribunal by the Commissioner under s 11(1)(d) of the BSCRA Act, s 38(1)(a) of the BSCRA Act enables the Tribunal to make a BRO where it is satisfied that the regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory. Where the Tribunal is so satisfied, it may make an order requiring a person who carried out a regulated building service to do one or more of the following under s 36(1) of the BSCRA Act:
(a)remedy the building service as specified in the order;
(b)pay to an aggrieved person such costs of remedying the building service as the Tribunal considers reasonable and specifies in the order; and
(c)pay to an aggrieved person a sum of money specified in the order to compensate the aggrieved person for the failure to carry out the building service in a proper and proficient manner or for faulty or unsatisfactory building work.
The Tribunal may otherwise decline to make a BRO under s 38(1)(b) of the BSCRA Act.
A BRO may require that it be complied with within a timeframe specified in the order.
The onus is on the applicant to satisfy the Tribunal, on the balance of probabilities, that the item complained of was part of the regulated building service and was not carried out in a proper and proficient manner or was faulty or unsatisfactory: Jetpoint Nominees Pty Ltd and Lee [2021] WASAT 10 at [69] per Parry J.
The contract forming the background to this dispute is entitled 'cost plus contract' and is in the Housing Industry Association standard form for such a contract. 'Cost plus contract' is defined in s 3 of the Home Building Contracts Act 1991 (WA) as follows:
cost plus contract means a contract under which a builder is entitled to recover an amount excluding prime cost items and provisional sums that is not determined at the time when the contract is entered into, being an amount that includes the actual cost to be incurred in —
(a)acquiring materials; and
(b)performing work,
specified in the contract, together with an additional amount that comprises either —
(c)a sum calculated as a percentage of that cost; or
(d)a specified sum,
or both.
The Tribunal does not have jurisdiction to determine home building work contract complaints relating to cost plus contracts (see the definition of home building work contract in s 3 of the Home Building Contracts Act 1991 (WA) which specifically excludes, in paragraph (a) of that definition, 'a cost plus contract ').
However, the Tribunal does have jurisdiction to determine building service complaints arising out of such contracts. The Tribunal notes that the definition of regulated building service in s 3 of the BSCRA Act includes, in paragraph (b)(i), 'home building work that is carried out by a person for another person under a home building work contract or other contract or arrangement for gain or reward' (emphasis added).

The conduct of the proceedings and evidence

The final hearing for this matter was held on 10, 11 and 12 February 2025. At the hearing the Tribunal granted leave for the applicant to be represented by her de facto partner, Mr Rad.
At the hearing, the Tribunal received the hearing book into evidence as Exhibit 1.
The Tribunal heard evidence for the applicant from:
•Mr Rad;
•Mr Andrew Chadbund, Building Inspector from the Building Commission; and
•Mr Fartous Hadi Kermanshahi in relation to the cost of remediation works.
The Tribunal heard evidence for the respondent from:
•The director of the respondent, Mr George Forrester;
•Mr Dominique Moschilla;
•Mr David Byl;
•Mr Gary Hill; and
•Mr Armando Carbone and Mr Robert Todaro (Marquis Group) in relation to the costs of remediation.

The building contract

As noted above, the contract is a standard Housing Industry Association cost plus contract dated 6 July 2022. The contract contains the following important provisions.[1]
[1] Exhibit 1, page 19.
3.POSSESSION OF SITE
(a)Forthwith upon the execution hereof and until practical completion the Builder shall be entitled to exclusive possession of the Works for the purpose of performance of this Contract and the Owner shall do all that is necessary to confer the same upon the Builder PROVIDED THAT the Owner or his duly appointed representative approved by the Builder shall be entitled to access for the purposes of inspection and viewing the progress of the Works but only at such reasonable times and in such manner as shall not interfere or prevent the Builder from carrying out the Works. After practical completion the Builder shall be entitled to reasonable access to the Site for the purpose of completing his obligations hereunder.
10.PROGRESS PAYMENTS
(a)The Builder shall be entitled to make claims for progress payments for the Works by notice in writing to the Owner (herein after referred to as "Progress Claims" at intervals either:
(i)the number of days specified in Item 7 of the Schedule commencing from the date of commencement of the Works; or
(ii)the value of the Progress Claim exceeding the amount specified in Item 7 of the Schedule.
(b)Such Progress Claims are subject to the following conditions:
(i)the Progress Claim shall identify all Costs incurred by the Builder up to and including the date of that progress claim together with the Builder's fee as specified in Item 5 of the Schedule;
(ii)payments shall be payable by the Owner within FIVE (5) days of receipt of any Progress Claim;
(iii)if the Owner shall not within FIVE (5) days of receipt of any Progress Claim notify the Builder of their disagreement with any of the items therein specifying full details of the Owner's disagreement the Owner shall be deemed to have accepted and approved of that Progress Claim as trust and correct;
(iv)if any dispute arises as to any item in the Progress Claim the Owner shall pay to the Builder the undisputed portion of that Progress Claim within the period specified in sub-clause 10(b) and the balance shall if not agreed and paid by the date of the next Progress Claim be resolved in accordance with Clause 18; and
(v)if any dispute arises as to any item in a Progress Claim which dispute remains unresolved at the date of the next Progress Claim the Builder may suspend the Works until the dispute is resolved or for any shorter period he may decide without prejudice to either party's rights in accordance with this Contract.
13.PRACTICAL COMPLETION
(a)Practical completion of the Works shall be deemed to have occurred when the same are structurally complete and reasonably fit for habitation and notwithstanding any unfinished work of a minor nature which does not unduly interfere with the free and uninterrupted use of the premises by the Owner.
(b)The Builder shall notify the Owner when the Builder considers that practical completion has occurred and within FIVE (5) days the Owner and the Builder or his representative shall meet at the Works to carry out a pre-handover inspection. If said meeting does not occur the Contract shall be referred to arbitration pursuant to Clause 18 hereof.
(c)During the pre-handover inspection the parties shall agree to a list of items which require completion or rectification. If the parties do not agree the Contract shall be referred to arbitration pursuant to Clause 18 hereof.
(d)Subject to Clause 13(e) the final payment shall be due within FIVE (5) days after practical completion and upon payment thereof the Builder shall hand the keys of the Works to the Owner or to such persons as the Owner may direct and on acceptance of the keys the Owner shall be deemed to have entered into possession of the Works and to have acknowledged that they have been completed by the Builder in accordance with this Contract and the Builder shall thereupon be relieved and discharged from all responsibilities under this Contract other than his obligations pursuant to Clause 14.
(e)Subject to Clause 13(g), if the Owner shall take possession of the Site, permit work outside this Contract or deliver goods or chattels to Site without prior written consent of the Builder, before practical completion or before the payment of all monies due and payable hereunder (whichever is the earlier), such action shall constitute an absolute waiver, release and discharge to the Builder from the Owner of any and every claim which the Owner had or might have against the Builder hereunder and the Builder shall thereupon be discharged, released and relieved absolutely from all of his obligations and responsibilities under this Contract (other than his obligations pursuant to Clause 14 - Defects Liability Period) and all monies payable under this Contract shall become immediately due and payable together with any interest thereon for late payment at the rate specified in Item 8 of the Schedule calculated from the date of the Owner taking such action.
(f)The Works shall be at the risk of the Owner from the date the Owner takes or is entitled to take possession.
(g)Possession of part of the works may be granted by the Builder in writing without prejudice to either party's rights under this Contract.
14.DEFECT LIABILITY
(a)If within the time specified in Item 10(a) of the Schedule calculated from the date on which practical completion was reached therein after referred to as "the defects liability period") defects or other faults in the Works which arise out of defective or improper materials or workmanship appear other than those defects and faults which may occur due to normal shrinkage and settlement and are notified in writing to the Builder they shall be rectified by the Builder.
(b)If the Owner does not notify the Builder in writing of any such defects or faults within TEN (10) days of the expiration of the defects liability period, the Builder shall be discharged and relieved from any further obligations and responsibilities under this Contract.
(c)The Builder shall at his own costs carrying out the rectification of defects within the time stated in Item 10(b) of the schedule hereto. If the Builder fails to rectify the defects or faults within this period the Owner may recover from the Builder the costs of making good the same.
(d)The Builder shall not be liable to remedy any damage or rectify any defects to the Works arising from any work carried out on the Site by the Owner or its servants and agents at any time.
25.SPECIAL CONDITIONS
(1)The Owner will pay the Builder five progressive payments of $11000 including GST after consequently: 1. Concrete finished; 2. Brickwork finished; 3. Roof cover done; 4. Internal fitout; 5. Completion.
(2)The Owner will agree to pay all Quotation (invoices) before Commencement of the job into the Builder's account.
(3)The Builder agrees to negotiate each Part of Contract rate with Owner then go ahead with it.
(4)After finishing each Part of Contract, the Owner to inspect the job and if Owner happy and satisfied, then Builder shall Proceed to the next stage of building.
(5)Items as below to be completed by Owner: Tiling except waterproofing - Painting - Landscaping.
Cost plus contracts are substantially different from fixed price lump sum contracts. In the latter type of contract, a builder agrees to build a house for a set price in a set time frame. Occasionally there are what are known as prime costs and variations, but generally the builder's margin (or profit which he or she makes) is already built into the lump sum contract.
Under a cost plus contract, the builder pays the bills, and on charges those bills plus the margin or fee agreed upon, to the client. In the Tribunal's experience, some builders prefer cost plus contracts because their profit is more reliable given that there is no need to build in contingencies; the client pays for the actual cost of the work plus the builder's margin or fee. Further, in the Tribunal's experience, the builder's fee is more usually reflected by a percentage rather than, as in this case, a payment schedule for a fixed sum.
Under clause 3, from the execution of the contract until practical completion (PC) the respondent was entitled to exclusive possession of the property to carry out the works.
'Practical completion' is defined in clause 13(a) of the contract to be when the works are structurally complete and reasonably fit for habitation and not withstanding any unfinished work of a minor nature which does not unduly interfere with the free and uninterrupted use of the premises by the owner. The contract provides for a process to determine when a house is practically complete which involves the builder giving notice, a pre-handover inspection occurring and, if this does not occur, an arbitration process applying. An owner must not occupy a house before a certificate of occupancy has been issued by the local council.
Clause 13(e) provides that if the owner takes possession of the site without the prior written consent of the builder, before PC or before paying all monies due and payable then this constitutes a waiver, release and discharge to the builder from the owner of any and every claim which the owner had or might have had against the builder under the contract (other than his obligations pursuant to clause 14 - defects liability period). Further clause 13(f) provides that the works shall be at the risk of the owner from the date the owner takes or is entitled to take possession.
Clause 10 concerns progress payments and provides that the procedure for such payments is governed by the amounts specified in items 5 and 7 to the Schedule to the contract. However, in this contract these items are blank and instead the contract deals with payments in Clause 25 Special Conditions (which are handwritten and which number (1) to (5)). Clause 25(1) provides that the owner will pay five payments of $11,000 each upon particular stages of the build being reached (a total amount of $55,000).
Clause 14 concerns defect liability and allows for the parties to specify, in item 10 of the Schedule to the contract, a defects liability period and a time to rectify the defects. Item 10 is blank in this contract. However, clause 14(d) provides that 'the Builder shall not be liable to remedy any damage or rectify any defects to the Works arising from any work carried out on the Site by the Owner or its servants and agents at any time'. If the Tribunal finds that the respondent did not carry out the works under any complaint items, then the respondent will not be liable to remedy any defects - this clause is consistent, in the Tribunal's view, with this principle.
Some of the other special conditions in clause 25 are noted as they are discussed below. Clause 25(2) states that the owner will agree to pay all invoices before commencement of the job into the builder's account (which did not occur in this case). Clause 25(4) states that:
After finishing each part of the contract, the owner to inspect the job and if owner all happy and satisfied then builder shall proceed to the next stage of building.
In Lee and Jetpoint Nominees Pty Ltd [2020] WASAT 62, the Tribunal stated at [59] as follows:
It is a fundamental principle that the rights granted and obligations imposed under legislation cannot privately be agreed not to apply. Relevant to this Act, a registered building service provider cannot opt out of obligations imposed and a person cannot agree not to exercise his or her rights to make a complaint at some future point when a defect may arise. The Act imposes obligations on registered building service providers and grants rights to persons in relation to a regulated building service to make a complaint alleging that such work has not been carried out in a proper and proficient manner or is faulty and unsatisfactory. Parties cannot enter into a private arrangement to operate outside of the Act where the building service being provided comes within the definition of a regulated building service because that building service is regulated by the Act.

To the extent that the respondent is seeking to rely on clause 25(4) to avoid liability for works he has completed under the BSCRA Act, the Tribunal finds that he is unable to do so. The Tribunal agrees with the view recently expressed by the Tribunal in Deshmukh and Distinctive Building Services Pty Ltd [2024] WASAT 15 at [54]:
In my view, the purpose of the BSCRA Act as consumer legislation, in relation to complaints about disputes which arise under home building work contracts, is to provide a system and process for resolving those disputes (Original emphasis).
Clause 25(5) provides that the owner was to complete tiling (except waterproofing) painting and landscaping.

Factual background

The evidence of both parties before the Tribunal was that the parties were acquaintances prior to entering into the contract. Specifically, Mr Forrester did some small works for Mr Rad, including building a letterbox and a fence, they had some friends in common and both Mr Rad and Mr Forrester were involved in the building industry.
The applicants had built three times previously with project builders. The evidence of Mr Rad at the hearing was that they went with the respondent as they thought it would be quicker due to the shortage of trades and because Mr Forrester was a bricklayer they thought it would be quick to the plate high stage. Mr Rad said that:[2]
And then from there he said, you know, 'if it takes longer time, you guys are living at the front, we will manage. You know we will basically, you know, work together'.
[2] ts 44, 11 February 2025.
Mr Forrester had not built a home for an individual before; he had previously built homes as 'spec work', which is building homes and then on selling them as a completed project rather than designing a home for an individual buyer, and therefore he had no previous experience directly contracting with a member of the public. He freely admitted to such lack of experience when he gave his evidence.
The pre-existing relationship between the parties, as well as the facts that the applicants resided in the front property during the building works and that Mr Rad was heavily involved in the building works (both as a brickie's labourer for Mr Forrester and by directly contacting and paying some trades) has made determining who carried out the building works more difficult than usual in this case. A consistent theme from the witnesses who gave evidence was that they thought that Mr Rad and Mr Forrester were partners and/or friends who were completing the build together as this is how Mr Rad represented himself and the project.
The following facts are agreed or uncontroversial and we make the following findings of fact:
•The respondent obtained a building permit from the City of Stirling dated 21 July 2022 for the construction of a new single storey dwelling with an estimated cost of $250,000.
•This was the fourth time that the applicants had built a home. The contract was for building a new house at the rear of the block.
•The contract was signed in July 2022 and the concrete slab was poured in August 2022. Mr Forrester completed the bricklaying work and Mr Rad was his labourer.
•In September 2022 the construction of the soak wells, plumbing and further brickwork commenced and between November 2022 to January 2023 the roof carpentry and plumbing work was completed.
•During the build, the applicants lived in the front house but sometime during April 2023 they moved into the rear property, where they are now residing and as at the date of the hearing, they were renting out the front property.
•No BA7 form has ever been lodged, which is a form lodged by the builder that says the building has been built to Australian Standards and in accordance with the plans and specifications approved by council.
•No BA 17 form has ever been lodged, which is a form completed by a building certifier after he or she is provided with and approves the certificates from relevant consultants, trades and suppliers stating that the various components of the building have been completed and constructed in accordance with the council approved plans and comply with the Building Codes of Australia and Australian Standards.
•No certificate of occupancy was issued by the council. Further the evidence was consistent that no electrical, gas or plumbing compliance certificates have been issued.
•The cost of the build was in the high $400,000s and only approximately $100,000 of that amount was paid through the respondent's account.
•In October 2022 the applicant paid the respondent the amount of $22,000 being the first two progress claims and later the applicants paid the respondent $10,000 cash. Therefore, the respondent has not been paid in full the $55,000 which it was owed under the contract.
•The respondent lodged a caveat over the property in or about May 2023 which subsequently became the subject of Supreme Court proceedings. The caveat was removed by consent orders on 5 December 2024.[3]
[3] Exhibit 1, page 578.

The parties' contentions

The Tribunal notes that both parties accepted the evidence of Mr Chadbund as to whether the works were faulty or unsatisfactory and were happy to rely on the PBRO.
The parties disagree, however, as to whether the respondent carried out some of the complaint items, the nature of the remedy which the Tribunal should order (the applicants seek a monetary order whereas the respondent seeks a work order) and as to the reasonable costs of remediating the items. The respondent also contends that some of the works are incomplete rather than faulty, given the applicants moved into the property prior to PC.
In relation to the issue of who carried out the work, the respondent's contention is that the applicant, through her agent Mr Rad, effectively took over the project and the engagement, management and supervision of trades, moved into the property without permission and subsequently refused him entry to the property from approximately February 2023 to carry out further works.
On 26 January 2023 the respondent emailed the applicant in the following terms:[4]
Dear Sara
Hope you are well,
I contacted you via text message previously before this email to arrange a suitable time to discuss any enquiries or issues you may find with the building. I have yet to receive a response.
With the completion of the building in close proximity if needed we can hire a private building inspector to go through the project in detail and rectify any faults, however, the current progress of the building is reasonable.
In relation to the building site, I was going to meet you to remind you as per the contract agreement I am the only person who can deal with the contractors on site. As we have spoken very often so far in all cases of contractors hired for this project we have agreed and you were satisfied after doing background checks for them to work on the project. I would appreciate you allow me to deal with the contracts as I am the builder. I am worried to tell you the interference in many cases of your husband with my contractors has been inconvenience, also dealing in cash with them as you know all payments have to go through builders bank account to pay for the invoices of the contractors this is a serious offence to my building ethics and company and can cause serious consequences for the contractors and confusion to the progress of the building as things have to be documented legally. Also, he cannot contact any suppliers or contractors on behalf of my company without my knowledge as he is free to do so on his behalf however, I am willing to arrange a meeting to resolve any issues at hand.
Feel free to contact me to organise a meeting as soon as possible as we don't want any delays to this project.
Kind regards
[4] Exhibit 1, page 289.
During closing submissions, Mr Forrester accepted that whenever money was paid into the respondent's account, he was on site supervising.[5]
[5] ts 121, 11 February 2025.
The applicants say that they only paid the subcontractors and spoke to them on the builder's instructions. On 25 January 2023 the applicant sent the following email to the respondent:[6]
Dear George,
I hope email finds you well.
It has come to our attention, there are several issues with our build in Wembley Downs, we have verbally spoke to you about some of them in the past however your excuses does not make sense and it is getting more hectic and complicated as build goes further, we have heard numbers of complaints from some of the trades worked at our site in relation to faulty and poor workmanship. Also we have realized some areas are not matching the approved plan from local city council.
We would urge you to arrange a meeting so we could discuss our queries and hopefully finding a solution.
Looking forward hearing from you.
Kind regards
Sara Beladinejad
[6] Exhibit 1, page 581.
The applicants dispute that the respondent was denied access to the property and say that he was on site until April 2023.[7]
[7] Exhibit 1, page 577.

Issue 1 - Did the Respondent carry out the work?

The preliminary issue in this case is who carried out the building service?

Legal principles

The leading case in relation to what constitutes 'carrying out' a regulated building service for the purposes of the BSCRA Act is Shami and Teo [2017] WASAT 73. At [47] - [49] the Tribunal stated:
47Accordingly, the Tribunal has decided that the proper construction of the phrase 'carried out' in s 36(1), s 37(1) and s 38(1) of the BSCRA Act is that it means the completion of the entirety of the building work of which the work the subject of a building service complaint forms part. That entirety of work could be described as 'the building project'. In the case of the construction of an entire building the building project will be the construction of the 'edifice' referred to in Shaw. In other cases the building project could be the completion of a building after it has reached a certain stage, or the alteration, improvement or repair of a building.
48For the purposes of s 36(1), s 37(1) and s 38(1) of the BSCRA Act, it is the entirety of the work of the building project which is carried out, not the components of it. What follows from that construction is that a building remedy order can only be made against the person who had the role of ensuring that the entire building project which includes the work which is the subject of a building service complaint was 'carried out', or in other words 'brought to completion'. It does not matter whether the work was done personally by that person or by other persons whom they arranged to perform the various components of the overall work. However, it needs to be noted that for a building remedy order to be made against that person the building project must be a 'regulated building service' as defined in s 3 of the BSCRA Act.
49Where an owner of a building undertakes a building project, whatever the scope of that project may be, they put themself in the same position as a builder (or to be more precise, a registered building service provider if a building permit is required for the project under the Building Act) or a contractor (if a building permit is not required and the owner chooses a contractor who is not a registered building service provider) would be if they were engaged to carry out the entire project.

Evidence of witnesses as to who carried out the building works

Mr Chadbund is a building Inspector with DEMIRS. He issued an initial proposed building remedy order (PBRO) in relation to 32 complaint items[8] and then an updated PBRO to include all 56 complaint items.[9] He attended two site inspections at the property.
[8] Exhibit 1, page 56.
[9] Exhibit 1, page 80.
Mr Chadbund confirmed at the commencement of his evidence that he did not investigate the issue of who carried out the building works in relation to the complaint items, but only opined on whether they were proper or proficient or faulty or unsatisfactory.
Mr Dominique Moschilla, from Dowell Windows, gave evidence about how the applicants obtained the handover of the lock up keys. His evidence was that his company posted the keys to Mr Rad on the mistaken belief that he was in fact the builder, George. His evidence was that Mr Rad called and emailed his office saying that his name was George.[10]
Witness, Moschilla: He would call and say his name was George. The emails I 've got, he started off as Orlando Rad. Then he became George Orlando. Then he became George UCPM…. I knew him as George from - I thought he was the builder. And it wasn 't until we had to confirm flyscreen installation that this George, the builder George, said you can't be dealing with this customer, he is the owner, all communication is to go via the builder not the owner. So the emails that I have got are from Orlando as, I 'm going to say, impersonating George.
[10] ts 54 - 55, 10 February 2025.
The Tribunal finds that Mr Moschilla was an impressive witness. He came across as measured and honest. He had no pre-existing relationship with Mr Forrester. His uncontested evidence is that Mr Rad represented himself as George in order to obtain the keys to the property. He was not cross-examined by Mr Rad in relation to this evidence, in fact Mr Rad stated to the Tribunal that 'whatever he said is correct. I - totally agree with it'.[11]
[11] ts 57, 10 February 2025.
Mr David Byl gave evidence that he is a carpenter and stonemason. His evidence was consistent with a letter he wrote that was submitted by the respondent:[12]
[12] Exhibit 1, page 300.
Tuesday 30^th July 2024
To: State Administrative Tribunal
Subject: 246 Weaponess Road, Wembley Downs
I, David Byl trading as Jahdav had quoted UCPM Pty Ltd (George Forrester) for the amount of $53,559.00 to supply and install stone tops and cabinets for the kitchen, alfresco, ensuite, bathroom and laundry as well as glass splash backs and walk in robes.
The client, Pooya Rad (also known as Orlando), gave me the interpretation that he (Orlando) was affiliated with UCPM. When I received the deposit directly from Orlando, I thought that the job was going ahead not knowing that Orlando was a client and not an authorised representative of UCPM Pty Ltd.
I went ahead and installed the cabinets and the stone tops for the kitchen, alfresco, bathrooms and laundry. While we were completing the bathroom top, we realised the basin was out of centre. To replace the top would cause a delay with the tilers. Orlando was on site and we discussed the issue. Orlando agreed to accept it as is. Orlando then got the tiler in to complete the tiling.
Orlando was happy with the quality and finish of all the work that I completed, except for a couple of minor scratches in the kitchen cabinet doors. This can be verified by George Forrester or Jeremy Byl (Southern Cross Kitchens).
I was planning to return to site and fix these minor scratches and install 2 x European drawer runner mechanisms (they were on back order at the time), however Orlando refused to allow me or my cabinet maker (Jeremy Byl from Southern Cross Kitchens) to return to site. These were the only things we needed to do to fully complete the job. Everything else had been done from our end.
I have seen the building inspection report, and I would like to clarify that when I left the job there were no chips in the stone tops, and there were no gouges out of the cabinetsdoors, drawers and panels. The cabinet maker who custom made and installed the cabinets (Jeremy Byl, Southern Cross Kitchens) can verify this also.
There is approx. $30,000 outstanding on this job as Orlando is refusing to pay for the work completed. He has also barred access to the site so that Jeremy and I are unable to finish those last minor items on this job.
I started legal proceedings against Pooya Rad (Orlando) with Warnar Spyker from Spyker Legal. However I ended up giving up, as the cost of chasing Orlando down was too much for me financially and mentally[.]
At the hearing Mr Byl gave evidence that he met Mr Rad and Mr Forrester together the first time and his understanding from that meeting was that they were working together - this was a result of the things Mr Rad said and also because the deposit came directly from Mr Rad.[13]
[13] ts 60, 10 February 2025.
His evidence was that he was still owed approximately $25,000 for his work - he did commence legal proceedings over this money but found it too stressful.[14]
[14] ts 64, 10 February 2025.
He later confirmed in cross-examination that the respondent paid an initial $1,000 to him for the plans but the deposit, which was the largest amount of money received, came directly from Mr Rad and then a final progress payment of $5,000 came from the respondent.[15]
[15] ts 64 - 67, 10 February 2025.
Mr Gary Hill also gave evidence. He wrote a letter dated 21 August 2024 which was also provided to the Tribunal by the respondent and which states:[16]
To whom it may concern,
I Gary Hill Licensed plumber and gas fitter for 54 years, declare that towards the end of the project, the owner took over the builders job, frequently calling me and interfering with and distracting my work.
I required a partial payment towards the final invoice but he refused to do so. Consequently, I refused to finalize the job as I was concerned about not being paid in full. So far, except for the final payment have been made by UCPM Pty Ltd and I have never had any issues with them. Since I do not know the owner, l requested to secure my pay[.]
[16] Exhibit 1, page 299.
Mr Gary Hill gave evidence that he has known Mr Forrester for approximately 5 years.[17] He stated that he was dealing with Mr Forrester right up until lockup stage and then Mr Rad was calling him and asking him to do things.[18]
[17] ts 95, 10 February 2025.
[18] ts 97 - 98, 10 February 2025.
He gave evidence that the invoices went to Mr Forrester and were paid by him but the final invoice was not paid.[19] Mr Hill said he was owed $7,779.30 and that there were extra things that Mr Rad requested - and with those extras he spoke to Mr Rad directly about what was required who said verbally he would pay.[20] These extras included the extra cooker in the alfresco.[21]
[19] ts 99, 10 February 2025.
[20] ts 103, 10 February 2025.
[21] ts 105, 10 February 2025.

He said that he had not issued a plumbing certificate as there were still things to finish on the job, including lagging on the hot water pipe, but he had not gone back to do those things because the job had got 'a bit messy'.[22]

Documentary evidence as to who carried out the building works

[22] ts 127 - 129, 10 February 2025.

Both parties filed books of documents which included emails, letters, invoices and legal correspondence.
The respondent summonsed numerous other witnesses who did not attend.[23] However, the respondent provided letters or statements from most of these witnesses. These letters or statements are summarised below; however they generally support the evidence given by Mr Moschilla, Mr Byl and Mr Hill that Mr Rad was engaging directly with and paying trades, particularly from the time of lock up in February 2023. The Tribunal must be careful not to place too much weight on the statements of witnesses who are not present for cross-examination. However, in all of the circumstances (including that they have written letters or statements and that the respondent summonsed them to give evidence) the Tribunal draws an inference that the evidence which they would have given had they attended would have been consistent with their letters or statements.

Mr Carl Vilardi (roof carpenter)

[23] Mr Forrester confirmed that he did not serve the witnesses with conduct money (ts 140, 10 February 2025) and therefore in accordance with the Tribunal's Practice Direction no steps could be taken to compel their attendance.

The respondent admits that the work performed by Mr Carl Vilardi, the roof carpenter, is faulty and unsatisfactory and that he is responsible for this work. However, Mr Vilardi wrote an email dated 16 October 2023 which states that 'George and Orlando' came to see him on site when he was working in Nollamara.[24] He said that he provided them with a quote, and he started the job in November 2023 - it was the first job he had done for the respondent. He further stated that:[25]
…
When I started the job after a few days george came checked the job, and I was paid a progressive payment through ucmp
After that Orlando was on site every day checking in on me he told me that he and George where partners
I finished job then Orlando checked job then paid balance[.]
[24] Exhibit 1, page 285.
[25] Exhibit 1, page 285.

In relation to the engagement of Mr Vilardi, Exhibit 1 contains a text which appears to be from Mr Rad to Mr Forrester on 3 December (no year stated) which states:[26]
Carl chipi just messaged me and he is coming to pick up the cash at 8.30am.
He is going to invoice $8800 including GST for the balance.
Are you sure we don't need to check his work before I pay him the cash?
Cause I'm not also sure about that pier and facis but according to the picture I sent you yesterday he has modified it as per plan.

Mr Greg Bussell (roof plumber)

[26] Exhibit 1, page 603.

An email from Mr Bussell to Mr Forrester dated 27 September (no year stated) states as follows:[27]
[27] Exhibit 1, pages 286 - 287.
Hi George,
Hope you are doing well.
Please see description for this job below.
Job - 246 Weaponess Road, Wembley Downs
•I received a quote request from George (UCPM Pty Ltd) on Friday 9^th September 2022 and returned a quote to him on Wednesday 28^th September 2022.
•George emailed me on Thursday 1^st December to let me know that the job was ready to measure.
•Orlando Radd rang me and left a voicemail to give him a call on Saturday 3^rd December, it was also about measuring the roof.
•Materials for the job were delivered on Tuesday 13^th December and the gutters and roof installation started on Thursday 15^th December.
•I received the below message from Orlando on Friday 23^rd December.
Hi Greg,
Orlando here, I'm George Forrester's business partner. You recently did a job for us in Wembley Downs. I met you when you came to measure the roof few weeks ago. Could you please give me a quick call when free.
Cheers
Orlando
Hi Greg,
Please call me when you free so we could arrange sometime to sort out your invoices in relation to the job you did for us in Wembley Downs.
246 Weaponess Road
Wembley Downs
Thanks
Orlando
•Orlando contacted me on many occasions after this time and I thought that I was dealing with George's business partner and was unaware that this was not the case.
•George sent me the below message on Saturday 1^st April 2023.
Hi Greg
Hope all is well
How are the things with Orlando's place going mate
Are you done with it all
Pls let me know if there are any issues
Kind regards
George
•I was made aware that Orlando wasn't George's business partner and that there was a problem on Friday 21^st April 2023 when I received an email from George with a letter of demand.
•Additional information - All invoices were sent to UCPM Pty Ltd for the completed works, please see attached invoices.
George, please let me know if you require further information.
Thanks
Regards,
Greg Bussell
Director
GJB Roofing Pty Ltd
The applicant provided a text message between Mr Forrester and Mr Bussell dated 15 September (no year) which stated:[28]
Hi Greg
This is George again
If we offer you a good rate and half cash and half on the book
Are you then going to do the job?
Cheers
[28] Exhibit 1, page 601.
The reply was:
HI George
Sorry I haven't been able to get a quote to you yet. I will be in the office later today and will get a quote to you.
cheers

Mr Michael Ventrice (MV ceilings)

The respondent provided a letter from Mr Ventrice addressed to the Tribunal dated 30 July 2024 which states:[29]
[29] Exhibit 1. page 290.
30 JULY 2024
To State Administrative Tribunal
To whom it may concern,
Subject: 246 Weaponess rd, Wembley Downs
We can confirm that MV Ceilings completed the ceiling works at this property and was paid in full by the owner of the property.
UCPM pty ltd had introduced MV Ceilings to the owner of the property and works were carried out as requested.
Thank you.
Your sincerely
Michael Ventrice

Mr Kiro Korunoski

The respondent provided a letter from Mr Korunoski dated 31 July 2024 to the Tribunal which states:[30]
To: state administrative tribunal
Subject: 246 Weaponess Rd, Wembley Downs
I, Kiro Korunoski, declare that I have been a door fixer for almost 20 years and have previously completed work for UCPM Pty Ltd (George Forrester).
Mr. Orlando knows me through UCPM and called me to do his job. I completed all the door and skirting work. Mr Orlando was happy with my work and paid me in full.
Kind regards,
Kiro Korunoski

Mr Peru

[30] Exhibit 1, page 370.

The respondent's position was that Mr Rad engaged Mr Peru to do the electrical work himself. The respondent summonsed Mr Peru but he did not attend and neither did he provide a statement. However, none of the complaint items involve electrical work.
Other documents
The respondent issued three invoices for 'progress payments' to the applicant each in the amount of $11,000 as follows:[31]
(1)Invoice dated 26 January 2023 for 'Progressive payment on the completion of the roof'.
(2)Invoice dated 10 April 2023 for 'Progressive payment for the internal fit out'.
(3)Invoice dated 10 April 2023 for 'Progressive payment on the completion of the house'.
[31] Exhibit 1, pages 301 - 303.
These invoices appear to relate to progress payments 3-5 in clause 25(1) of the contract. There is no evidence that these have been paid - only the two earlier progress payments totalling $22,000 were paid[32] and a further cash payment of $10,000 was also paid at a later stage. It is not entirely clear what the payment of $10,000 was for. Mr Rad stated in his Supreme Court witness statement that he also paid $10,000 cash for the roof payment[33] but the evidence of Mr Forrester at the hearing was that this money was for bricklaying and paid into his sole trader account.[34]
[32] Exhibit 1, page 584.
[33] Exhibit 1, page 574.
[34] ts 96, 11 February 2025.
The documents include the following other invoices:
(a)An invoice from 'Chill Plumbing and Gas in the amount of $5,713.29 directed to UCPM Pty Ltd.[35]
(b)An invoice from GJB Roofing Ptd Ltd ATF The Bussell Family Trust to UCPM in the amount of $730 on 1 August 2023 which is stated to be 'overdue'.[36] This amount was paid on 20 September 2023, but it is not clear who paid it.[37]
(c)An invoice dated 10 March 2023 which was addressed to Mr Forrester from Jahdav Design Woodcrafts (David Byl) and details an outstanding amount of $28,746. This invoice indicates that a $1,000 'deposit' was paid on 18 October 2022, a $17,559 deposit was paid on 16 January 2023 and a 'progress payment' of $5,000 was paid on 6 March 2023.[38]
(d)Two brick work invoices - an invoice for the amount of $11,532.44 to UCPM from Midland Brick dated 23 September 2022 and an invoice that UCPM issued to itself in the amount of $33,406.46 on 15 December 2022.
(e)An invoice to the respondent from DJB roofing in the amount of $22,159.19 on 28 September 2022 and a further invoice on 23 December 2022 in the amount of $572.
(f)An invoice from Capitol Constructions to the respondent for roof carpentry dated 4 December 2022 in the amount of $8,800; and
(g)An invoice from Euro Electrical Services to the respondent for $13,893 dated 10 September 2022.
[35] Exhibit 1, page 304.
[36] Exhibit 1, page 305.
[37] Exhibit 1, page 306.
[38] Exhibit 1, page 303.
With the exception of the documents referred to above, neither party filed evidence of communications between them.

Determination as to who carried out the works

General comments

Speaking broadly, the Tribunal finds that the arrangements entered into by the parties were unusual both in terms of the form of the contract and also its practical operation. Important items of the Schedule to the contract were left blank and the parties instead hand wrote special conditions at clause 25 that neither party complied with.
Neither Mr Forrester nor Mr Rad were impressive witnesses. Each consistently interrupted each other and the Tribunal and each blamed the other entirely for the problems with the build - neither party appeared to have engaged in any self-reflection about how they could have managed the build and the dispute differently. Further, their versions of events were entirely polarised and for this reason the Tribunal prefers to have regard to documentary material or the evidence of other witnesses where it is available.

Who organised the trades

The evidence of Mr Rad was that when Mr Forrester was not on site, he asked him to let tradies in for him - he said that Mr Forrester was driving an Uber at the time.[39]
[39] ts 44, 11 February 2025.
However, the Tribunal finds that the applicants did not only engage with trades at the request of the respondent but did so also on their own initiative, particularly after lock up.
As noted above, the Tribunal finds that Mr Moschilla was an impressive witness. Mr Rad's evidence was that he only asked for the keys to the property at the request of the respondent, however if this was in fact the case, the Tribunal finds it difficult to understand why Mr Rad did not simply inform Mr Moschilla that the builder had asked for the keys to be sent to him or why Mr Forrester did not contact Mr Moschilla and ask him to post the keys to the applicant. The Tribunal also finds it difficult to understand why it was necessary that Mr Rad misrepresent to Mr Moschilla that he was the builder.
Mr Hill's evidence, which the Tribunal accepts, was clear that Mr Rad contacted him directly, particularly towards the end of the build. This was in fact admitted by Mr Rad when questioning Mr Hill.[40] Mr Hill said that Mr Rad was trying to push his job before other people. This evidence corroborates the evidence of Mr Byl that Mr Rad was in a hurry to get the job finished (see [112] below).
[40] ts 108, 10 February 2025.
The emails of Mr Vilardi and Mr Bussell referred to at [59] and [61] above corroborate the evidence of Mr Hill that Mr Rad was telling contractors that he and Mr Forrester were partners.

Who paid the trades

The contract provided that all payments were to be made by the respondent. Clearly both parties breached the contract in this regard.
The letters from Mr Ventrice and Mr Korunoski (at [64] and [65] above) indicate that although the respondent introduced these trades, the applicants paid them directly (contrary to the terms of the contract).
In the Tribunal's view, the text from Mr Rad to Mr Forrester about payment to Mr Vilardi at [60] and the text from Mr Forrester to Mr Bussell about cash payments at [62] demonstrate that both parties were aware that Mr Rad was paying contractors directly in cash for parts of the work, contrary to the terms of the contract.
In relation to the payment of trades, Mr Rad's evidence was that sometimes the respondent would send him an invoice for a subcontractor, and he would pay the respondent and other times the respondent would tell him to reach an arrangement with the subcontractor for cash. At yet other times it was a combination of the two and he gave the example of the concreter whom he paid half in cash and half through an account.[41]
[41] ts 47, 11 February 2025.
Mr Rad said in relation to the plasterer, Mr Serin, that Mr Forrester gave him a quotation but told him '[i]f you want to save money you can work out a deal with him in cash'. Mr Rad's evidence was also that 'that particular trade was all paid in cash and I paid him'.[42]
[42] ts 46, 11 February 2025.
The evidence from Mr Rad was that the house cost in the high $400,000s to build and that only approximately $100,000 of this went through the books of UCPM.[43] It is clear to the Tribunal and the Tribunal finds that in the words of Mr Forrester, the applicants were trying to do the build as cheaply as possible.[44] The Tribunal also finds on the basis of the evidence that both parties were offering cash incentives to trades in order to prioritise their project and that a large amount of the money paid for this project was in cash and 'off the books' and paid directly by the applicants to trades. This has the effect that the person who pays the invoice (Mr Rad or the respondent) avoids paying GST and the recipient of the payment avoids paying income tax. The Tribunal finds that some of these payments were done at the request of the respondent and other payments were done by the applicants on their own initiative. The Tribunal also finds that even where invoices exist in relation to particular trades, these cannot be relied upon given the evidence of the parties that the invoices were not accurate and often reflected only some of the money paid for the work performed.
[43] ts 65, 11 February 2025.
[44] Exhibit 1, page 43.
We accept the applicants' evidence that Mr Forrester asked them to pay some of the trades directly, however we also accept the evidence of Mr Forrester and find that, post lock up, the applicants were dealing with some of the trades directly without his knowledge. We do not accept Mr Forrester's evidence that he never instructed the applicants to pay trades in cash and find that he did in fact do so prior to lockup.
The invoices appear to have been issued in the early months of the build namely between September and December 2022 and not in the latter part of the build. The Tribunal finds that the parties relationship deteriorated from January 2023, whether this was because, as the applicants claim, problems with the quality of the build became apparent or whether, as the respondent claims, Mr Rad began to take over the build himself, or whether it was a combination of these factors is unclear. However, the result was that Mr Rad from that point on took over more responsibility for the build and the Tribunal finds that at least from the point of lock up in February 2023 he was contacting tradies and paying them directly.
The evidence of Mr Rad at the hearing was that only one invoice was paid to the respondent after lock up - and that was the sum of $5,000 to the cabinet maker Mr David Byl in March.[45] The respondent's evidence was that he only paid this invoice to bring the deposit up to 40% and to try and resolve a dispute between Mr Byl and Mr Rad.[46]
[45] ts 60, 11 February 2025.
[46] ts 109, 11 February 2025.
Both parties had other options available to them once the relationship deteriorated, for example the respondent could have sought to terminate the contract and the applicants could have sought to make the respondent responsible for the build as per the contract. However, what appeared to happen was that the applicants tried to finish the build without involving the respondent and the respondent turned a blind eye to this. It was only when it became apparent that there were some significant issues with the quality of the build that either party sought to try and clarify the situation and seek legal advice.

Conclusion

Following Shami and Teo a BRO can only be made against the person who had the role of ensuring that the entire building project which includes the work which is the subject of a building service complaint was 'carried out', or in other words 'brought to completion'. However, the facts in this case are entirely different. In this case, in the Tribunal's view, there were two different persons who carried out different works at different stages of the build. In the Tribunal's view, there is nothing in principle to preclude a finding that different persons or entities carried out different works at different stages when the evidence supports such a finding.
In the Tribunal's view, Mr Forrester should have taken further steps to ensure that he was aware of what was happening with the build and the payments to contractors as this was his responsibility as the builder. For this reason, where there is evidence that Mr Forrester was involved in organising and/or paying the trades, we have found that he did carry out the work.
Based on the oral and documentary evidence, the Tribunal finds that the respondent carried out the following categories of work:
(a)the works completed by the cabinet maker Mr David Byl (complaint items 8, 19, 20, 21, 22) with the exception of complaint item 8.
(b)the works completed by the plumber, Gary Hill (complaint items 33, 37 and 53)
(c)the items completed by the roof plumber Mr Greg Bessell (complaint items 26, 27, 33, 35, 37, 46, 50 and 53); and
(d)the items completed by the roof carpenter Mr Carl Vilardi (complaint items 38, 39, 40, 42, 43 and 44) (this was in fact accepted by the respondent).
However, the Tribunal finds that the respondent is not responsible for the works completed by the plasterer Mr Mura Serin, given the evidence of both parties was that Mr Rad contacted him and paid him directly. The Tribunal acknowledges that Exhibit 1 contains an invoice dated 25 November 2022 from Sky Plaster WA 'for George'.[47] However, the uncontested evidence of Mr Forrester was that he simply provided this quotation as an introduction and invited Mr Rad to work out his own arrangements with Mr Serin. As noted above, Mr Rad admitted that he organised the plasterer and worked out a cash deal with him.
[47] Exhibit 1, page 292.
The remaining complaint items were either completed by the respondent himself or by unknown persons.

Issue 2: Principles concerning when work is unfinished/incomplete instead of faulty/unsatisfactory

Another complicating factor in this case is whether some of the complaint items were incomplete or unfinished, as compared to faulty or unsatisfactory. The evidence from the respondent was that the applicants moved into the property prior to PC. As noted above, the contract provides a process for identifying when PC has been completed and a process to follow before the house is occupied.
The evidence of Mr Rad was that they did not know they were not allowed to move into the house prior to a handover, despite having built three times in the past. The Tribunal does not accept this evidence given the applicants' prior building experience and the fact that Mr Rad is employed in the building industry, specialising in house and land packages. The Tribunal infers that the applicant must have known there was some sort of handover process involved before the property could be lived in.
As noted above, an owner is only allowed to live in a property when the build is complete, which means that the proper statutory processes have been followed and the council have issued a certificate of occupancy. If an owner moves in prior to PC, then dating any defects or issues with the build becomes more difficult, particularly for items such as scratches which can be caused at any time.
The Tribunal finds that the applicants moved into the property before PC. The Tribunal notes that clause 13(f) of the contract provides that works are at the risk of the owner from the date the owner takes possession.
The Tribunal agrees with the comments of the Tribunal in the decision of Thorp and D2R Pty Ltd [2023] WASAT 64 where the Tribunal stated at [95] - [96] as follows:
95In our view, the effect of the taking of early possession is that any works that remain outstanding or incomplete by virtue of the builder's possession to the works being effectively revoked by the owners cannot be considered to be works which were carried out in a manner which was not proper or proficient, or was faulty or unsatisfactory.
96However, to the extent that any works already undertaken by the builder can be shown, at the time that the owners resumed possession of the land, to have been carried out in a manner which was not proper or proficient, or faulty or unsatisfactory, there remains a basis for the making of a BRO.

Complaint items

The Tribunal will now discuss each of the complaint items in turn and summarise its conclusions under each item. However, before doing so, it will set out the general principles in relation to the types of BRO which can be made and also its observations of the witnesses who gave evidence in relation to the costs of the remedial works.

Types of BRO

The applicants' position in relation to the type of BRO which should be issued should the Tribunal find the work completed by the respondent is faulty or unsatisfactory is that they would like a monetary order given the long history of the proceedings and the breakdown of the relationship between the parties. The respondent's position was that it wished to have the opportunity to remediate its work.

The prerequisite to the making of a BRO by the Tribunal is that the Tribunal must be satisfied that the regulated building service that is the subject of the complaint has not been carried out in a proper and proficient manner or is faulty or unsatisfactory.[48]
[48] Gemmill Homes Pty Ltd v Sanders [2018] WASC 179 at [106] per Smith J.
Section 36 of the BSCRA Act makes provision for three types of BRO and the Tribunal has a discretion as to what type of order is made.[49] The first is a remedial work order. The second is an order for the payment of reasonable costs of remedying the building services work order. The third is an order for the payment of compensation.
[49] Gemmill Homes Pty Ltd v Sanders [2018] WASC 179 at [104] per Smith J.
There is no right or requirement on a party to a complaint to elect whether the builder undertakes the remedial works.[50] The applicants' preference, and reasons for seeking a monetary order, however, are relevant matters for the Tribunal to consider when determining the type of BRO to make.[51]
[50] Gemmill Homes Pty Ltd v Sanders [2018] WASC 179 at [124] and [134] per Smith J.
[51] Gemmill Homes Pty Ltd v Sanders [2018] WASC 179 at [147] per Smith J.
Another relevant matter of fact that the Tribunal should take into account is the behaviour of the parties towards each other. If there is evidence that the relationship has completely broken down, then this is also a relevant matter to take into account. In relation to those items where the Tribunal has found both that the respondent completed the building work and that the work has not been carried out in a proper and proficient manner, or is faulty or unsatisfactory, we find that a building remedy order, in the form of an order to pay, should be made against the respondent under s 36(1)(b) of the BSCRA Act. This is for the following reasons:
(a)the behaviour of the applicants and the respondent during the hearing indicates to the Tribunal that their relationship has now completely broken down and there is no reasonable prospect that they will be able to communicate to allow the respondent to complete the work or organise someone else to do so;
(b)this is a very long-standing dispute with a long history of legal proceedings, including in the Magistrate's court and Supreme Court and understandably both parties are now in a visible state of frustration and agitation about the proceedings, which is evident in their behaviour towards each other; and
(c)the Tribunal therefore has no confidence that a work order will bring this matter to a conclusion.

Evidence of the witnesses in relation to remedial works

As noted above, both parties called witnesses to give evidence in relation to remedial works and, as is customary in the Tribunal, these witnesses gave evidence together.
The applicant called Mr Kermanshahi who is a registered builder, registered plumber, registered gas fitter and registered refrigeration expert. His report states that his company name is 'Caspian Living' however during his evidence he stated that this name was no longer in use as he was now working in mining and that he now operates under his own ABN. His report totalled the costings for the remedial work as $273,400.[52]
[52] Exhibit 1, page 248.
Mr Robert Todaro, General Manager for Marquis Group and Mr Armando Carbone, the registered builder for Marquis Group both gave evidence for the respondent (on the first day only Mr Todaro gave evidence, but on the second day both gave evidence). The evidence of Mr Todaro was that he and Mr Carbone attended site together and worked out the costings together.[53] Their report totalled the costings for the remedial work as $63,052.00.
[53] Exhibit 1, page 161.
In the event of any conflict, the Tribunal prefers the evidence of Marquis Group rather than the evidence of Mr Kermanshahi. The applicant stated to the Tribunal that she instructed Mr Kermanshahi that 'every item in his report should be like brand new as that is what they paid for'.[54] Mr Kermanshahi, in his evidence, confirmed that was in fact the basis of his costings - he said he was not engaged to patch it up or renovate it but to deliver brand new things to the owners.[55]
[54] ts 221, 10 February 2025.
[55] ts 223, 10 February 2025.
With respect, the Tribunal is of the view that Mr Kermanshahi has misunderstood his role and the role of the Tribunal which is not to award the applicants an amount which represents everything to be replaced as brand new, but rather which represents the reasonable cost of remediating any defects. In some cases, this may require the complete replacement of the item, but in other cases the item can be fixed or remediated. In each case it will depend on the circumstances, but it is incorrect to start from a position that everything must be replaced brand new.
Further, in relation to some of the bigger or more expensive items, the evidence of Mr Chadbund was that the scope of work proposed by Mr Kermanshahi was excessive and the scope of work proposed by Marquis Group was appropriate. For example, in relation to item 25 (which is dismissed below), the applicant sought an amount of $35,000 for this item on the basis of Mr Kermanshahi's report which states that the scope of work is the following:
To strip out tiles, Gyprock ceiling, cornices, downlights, exhaust fan. To build up new wall creating a niche according house plan, waterproofing, tiling, fixing ceiling and cornices, reinstallation of downlights and exhaust fan.
Marquis Group's evidence was that the cost of remediation of item 35 was $8,100.
The Tribunal asked Mr Chadbund about whether the cost of remediating this item would be $35,000 and he said 'no'. The Tribunal also questioned Mr Chadbund about the appropriate scope of work given the vast difference between the quotes and his evidence was that he agreed with the scope of work of the respondent and said that the applicant's quote was excessive.[56]

Item 8 - Bathroom

[56] ts 149, 10 February 2025.

This item states 'cabinetry defect & benchtop not centered'. The applicant is claiming an amount of $17,000 for this item.
As noted above, the Tribunal finds that the respondent is responsible for the scope of work completed by Mr Byl.
However, Mr Byl's evidence was that Mr Rad accepted the basin being off-centre as he was in a hurry to complete the job and wanted to complete the tiling, so he was 'happy to live with it'.[57] This evidence was not challenged by the applicants in cross-examination.
[57] ts 62, 10 February 2025.
The Tribunal accepts Mr Byl's evidence and finds that Mr Rad accepted the basin was off centre and did not bring this to the attention of the builder. Given that Mr Rad accepted the 'faulty' work in a context where he was on site directly liaising with trades, was holding himself out as Mr Forrester's business partner and paying Mr Byl directly (in the main), in the Tribunal's view the applicant cannot now claim that the work is faulty and unsatisfactory and require the basin to be replaced. The Tribunal will therefore dismiss this item.

Items 9 - External west wall, 10 - Internal garage wall, 12 - External southern wall, 13 - External eastern wall, 14 - External northern wall

These items all relate to the quality of the plastering and allege that the texture colour does not match and there are some cosmetic defects. As noted above, the Tribunal finds that the applicants engaged the plasterer Mr Serin themselves and therefore will dismiss these items.

Item 15 - Aluminium entry door

The item states, 'panels dented & scratches' and the applicant is seeking an amount of $6,600 for this item.
The PBRO states that there are discernible scratches to the outside of the front entry aluminium door and impact damage to the internal bottom plate below the glass which is consistent with construction work being conducted close to the door after installation without the door having appropriate protection.
The respondent's position is that the door was damaged when Mr Rad had taken over the build. This is denied by the applicant.
There is no evidence before the Tribunal as to when the door was installed, who organised and paid for this or as to when or how the damage was caused.
However, as noted above, the Tribunal finds that the applicants moved into the property before PC and that clause 13(f) of the contract provides that works are at the risk of the owner from the date the owner takes possession. In all of the circumstances the Tribunal is unable to make any findings about the cause of the damage to the door and whether or not it occurred before or after the applicants commenced living in the property and it will therefore dismiss this item.

Item 17 - Theatre room windows

This items states 'Scratches on windows ' and the applicant is seeking an amount of $700.
The PBRO clarifies that this item of complaint relates to damage sustained to the two aluminium window frames in the Theatre room. The respondent's position in relation to this item is that Mr Rad caused the damage when cleaning the windows. This is denied by the applicant.
There is no evidence before the Tribunal as to when the window was installed, by whom and who paid for this. There is also no evidence as to when or how the damage was caused. For the same reasons stated in relation to complaint item 15, the Tribunal will dismiss this item.

Item 18 - Bathroom door frame

This item states 'Door frame not plumbed'. The PBRO indicates that this item of complaint relates to the vertical alignment of the bathroom steel door frame. The PBRO states that upon inspection with the use of a 2.0-metre-long spirit level, the deviation from vertical alignment (plumb) to the left-hand side was 12 millimetres and the deviation from vertical alignment to the right-hand side was 7 millimetres which has resulted in a bathroom door which is unable to be closed.
The respondent relies on special condition 25(4) and argues that the applicant accepted this work. As noted above, in the Tribunal's view, this special condition does not allow the respondent to contract out of consumer protection legislation and avoid liability for defects which it has caused.
Marquis Group offered an opinion during the hearing that there was not in fact any fault with this door.[58] However, Mr Carbone conceded in his evidence that he had not used a spirit level.[59] The Tribunal therefore prefers the evidence of Mr Chadbund that this item is in fact faulty and unsatisfactory.
[58] ts 20, 11 February 2025.
[59] ts 31 - 32, 11 February 2025.
The applicant is seeking an amount of $17,000 for this item. Marquis Group states that the cost of remediation is $7,700 which includes an allowance for rectification of any tiles or plaster damage rectified during this process.
The Tribunal finds that this item is faulty or unsatisfactory and will order that the respondent pay the applicant an amount of $7,700 within 28 days in relation to this item.

Item 19 – Ensuite cabinetry

This item states, 'Scratches on drawers' and the applicant is seeking an amount of $300 for this item.
The PBRO indicates that upon inspection the bottom left-hand drawer of nine drawers had a discernible blemish on the surface near the adjacent wall, when viewed from a normal viewing distance of 1.5 metres.
Mr Byl gave evidence about the scratches to the cabinetry and stated that 'he was quite disappointed with the scratches' and that with the exception of one in the laundry and two in the kitchen that he needed to sort, there were a lot more scratches that he believed had been subsequently caused by the applicants. He stated that 'to run a family in a home, you expect to get scratches from time to time from children running around or something'.[60]
[60] ts 91, 10 February 2025.
There is no evidence before the Tribunal as to when the drawer was scratched or as to how the damage was caused. The Tribunal has found that the applicants moved into the property prior to PC. In these circumstances the Tribunal declines to make any findings about the cause of the damage to the ensuite cabinetry and it will dismiss this item.

Item 20 - Bed 4 ensuite

This item states '[s]cratches on cabinet doors and needs adjustment' and the applicant seeks an amount of $2,000 for this item.
In his evidence, Mr Chadbund reiterated what was in the PBRO in relation to this item, namely that any scratches on the drawer that the applicant maintains are an issue were not discernible when viewed from a normal viewing distance of 1.5 metres and therefore not faulty or unsatisfactory. However, he said that the middle drawer of three is not closing with consistent margins and will require adjustment by the respondent.
The Tribunal finds that the only faulty and unsatisfactory work under this item is the adjustment of the middle drawer.
Both the quotes from Mr Kermanshahi and Marquis Group are of limited assistance in determining what is a reasonable amount to allow for this item. Mr Kermanshahi's scope of work for this item is 'to dismantle cabinetry and repaint plus installation'. Further, the Marquis Group quote only provides a global amount for repainting and reinstalling panels in relation to items 19, 20 and 21 ($2,500 total).
In the Tribunal's view, based on an allowance of two hours for a cabinet maker, a reasonable sum to allow for this item is $500. The Tribunal will therefore order that the respondent pay the applicant the sum of $500 within 28 days in relation to this item.

Item 21 - Kitchen

This item states, 'Scratches on cabinet doors and needs adjustment.'
The PRBO notes that this item of complaint relates to two minor chips to the laminate on the south wall of the kitchen, where the pantry door is located. It states that upon inspection when viewed from a normal viewing distance of 1.5 metres, a chip exists to the top of the mullion to the right of the fridge overhead cupboards, and to the top of the mullion to the left of the pantry door. The PBRO goes on to say that in the inspector's considered position, given the high location of the chips, the causation has either been whilst the units were in transit or during installation.
Mr Byl, in his evidence, appeared to accept that these scratches or chips were caused during installation.[61]
[61] ts 91, 10 February 2025.
As noted above, the Tribunal has found that the respondent carried out the cabinetry works.
The applicant's costing for this matter is $5,500 however this is 'to dismantle and repaint all kitchen cabinets and install them all again' which extends beyond the terms of the PBRO. The respondent's costing for this item is $2,500 however this is in relation to items 19 - 21.
In all of the circumstances the Tribunal finds that a reasonable sum to allow for this complaint item is $1,000 and will order that the respondent pay the applicants this amount within 28 days.

Item 22 - Kitchen

This item states '[s]tone benchtop chipped'.
The PRBO notes that this complaint item relates to two issues:
(1)a chipped section in the external alfresco kitchen stone benchtop - the inspector says that it appears that the cut out for the wok burner has been overcut and a discernible chipped section is evident to the front left-side corner in front of the stainless-steel hob of the wok burner; and
(2)all 90-degree internal corners at the junction of the waterfall ends, and the underside of the stone benchtop in the kitchen are defective - the inspector stated that when viewed from a normal viewing distance of 1.5 metres, all internal corners are noted above are not 90-degreees, appear bowed and look untidy.
The PBRO states that both (1) and (2) above are faulty and unsatisfactory.
The applicant is seeking an amount of $23,000 for this item on the basis of the report of Mr Kermanshahi which says:
To strip out kitchen benchtop and outdoor kitchen benchtop, plumbing, electrical, tiling around it. To supply and install new kitchen benchtop and new outdoor kitchen benchtop plus all plumbing, tiling and electrical work.
The Tribunal finds that the respondent is not responsible for the chip to the alfresco kitchen bench (which was described as next to the wok burner). The unchallenged evidence of Mr Byl was that he did not cause the chip in the outside alfresco bench, he stated that it is in the corner of the wok burner and he did not install the wok burner.[62]
[62] ts, 90, 10 February 2025.
The unchallenged of evidence of Mr Hill was that he spoke to Mr Rad directly about some extra items, and that Mr Rad told him verbally that he would pay. These extra items included an extra cooker in the alfresco.[63] Mr Hill was not asked about the chip in the alfresco bench. It is not clear to the Tribunal whether the wok burner is the 'extra cooker;' referred to in the alfresco by Mr Hill. If it is, then the Tribunal finds that if the chip was caused by Mr Hill, then the respondent is not responsible for this given it was an extra item separately negotiated between Mr Rad and Mr Hill. However, if the wok burner was not installed by Mr Hill, then there is no evidence before the Tribunal about who installed the wok burner and how the chip was caused. The Tribunal will therefore not make any allowance for the alfresco component of this item.
[63] ts, 84, 10 February 2025.
However, the Tribunal finds that the internal kitchen bench is faulty and unsatisfactory based on the evidence of Mr Chadbund.
Marquis Group did not inspect the indoor kitchen bench and therefore has not provided a costing for this item. Mr Kermanshahi's costing was $23,000 for both the internal and alfresco areas, however he was unable to give the Tribunal a breakdown of these costings. Further, Mr Kermanshahi's quotation is based on replacement of the kitchen bench rather than remediation and the scope of work contained in the PBRO is remediation. The Tribunal notes that the original quote by Mr Byl for all of the stone tops in the internal kitchen, including the kitchen bench was $9,260.[64]
[64] Exhibit 1, page 313.
The Tribunal finds that it is reasonable to allow an amount of $5,000 in relation to this item and will order that the respondent pays the amount of $5,000 to the applicant within 28 days.

Item 23 - Alfresco

Complaint item 23 states '[h]ole in northern side eave'.
The PBRO states that this item of complaint relates to a hole in the eave above the north-east corner of the Theatre room and assessed this as faulty and unsatisfactory.
The respondent denies liability for this item relying on the special condition 25(4) of the contract. In the Tribunal's view the respondent is responsible for this item.
Mr Kermanshahi stated that the costs of remediating this item was $2,000 and the scope of work was to strip out Hardiflex, supply and install new Hardiflex including painting. Marquis Group assessed the cost of repair as $200 but in his oral evidence Mr Todaro conceded that a more appropriate sum was in fact $300.[65]
[65] ts 227, 10 February 2025.
The Tribunal accepts the evidence of Mr Chadbund and finds that the work the subject of this complaint item is faulty or unsatisfactory. The Tribunal prefers the evidence of the Marquis Group as to the cost of the repairs and will order that the respondent pay the applicant the amount of $300 within 28 days of the date of these orders.

Item 24 - Weep holes

This item refers to '[n]o weep holes on eastern external wall'.
The PBRO notes that this item of complaint relates to the omission of weepholes to all external walls and notes that the respondent claims that the weepholes are in the cavity but were plastered over.
As noted above, the Tribunal finds that the applicant directly contracted with the plasterer and therefore finds that the respondent did not carry out the work the subject of this item and will therefore dismiss this item.

Item 25 - Master bed ensuite

This item states '[s]hower recess size doesn't match council approved plan'.
The PBRO notes that this item of complaint relates to the tiled niche on the northern wall of the Ensuite shower which is the wrong size.

The respondent says that Mr Rad was on site at the time the recess was made (he was in fact his brickies labourer at the time) however he did not want to wait for the supply of the lintel and he approved the amendment.[66]
[66] ts 34, 10 February 2025.
Mr Rad gave evidence that Mr Forrester did not have the lintel at the time and said that he would rectify it afterwards. He denied that he was happy to proceed without the lintel.[67]
[67] ts 52, 11 February 2025.
This is one of the more difficult complaint items to determine. The parties' evidence is completely opposed as to whether or not Mr Rad was happy to accept the change or not. On the one hand, Mr Forrester was the bricklayer on site. On the other hand, the evidence of Mr Forrester that Mr Rad was in a hurry to complete the job and so did not want to wait is corroborated by that of other witnesses, in particular Mr Byl in relation to complaint item 8. Further, the applicant was responsible for tiling under the contract and proceeded to tile the shower recess. The Tribunal is of the view that if Mr Rad was not happy with the absence of the lintel, then he would not have proceeded to tile the area.
The applicant bears the onus of establishing that each item of complaint is faulty and unsatisfactory. In the Tribunal's view this complaint item should be dismissed.

Items 26 and 27 - Façade and 46 - Portico and 50 - Alfresco

Item 26 states '[p]ortico gutters leaking ' and item 27 states '[p]ortico facia not plumbed.' Item 46 states 'loose roof cover sheet' and item 50 states 'minor leak from alfresco area gutter'.
The PBRO states in relation to item 26 that at the site inspection, the inspector was shown photographs by the applicant dated 31 March 2023 indicating water dispersing from the Portico gutters, adjacent to the brick pier. The PBRO concluded that the fall of the gutter, in falling towards the brick pier rather than away from it, is faulty and unsatisfactory and recommended that:
The respondent is to remedy the fall of the Portico fascia and gutter, so that it falls away from the feature brick pier, and water is directed to the closest downpipe in accordance with 'NCC 2019 Volume 2; Part 3.5 Roof and Wall Cladding; Part 3.5.3 Gutters and Downpipe.
The recommended action also therefore covers the scope of the complaint in item 27.
The PRBO indicates that complaint item 46 is in relation to one screw having insufficient contact with the roof batten below and that complaint item 50 concerns a minor leak from the alfresco area gutter which is caused by lack of overflow of gutters in the vicinity.
The Tribunal has found above that the respondent carried out the works the subject of the complaint items related to the roof plumbing.
Marquis Group has estimated the cost of repair for all of these items as $2,700 whereas Mr Kermanshahi's costing is $11,000 for all items. For the reasons stated earlier, the Tribunal prefers the evidence of the Marquis Group and will order that the respondent pay the applicant the sum of $2,700 within 28 days.

Item 29 - Master bed ensuite and 30 - Bathroom

Complaint item 29 states 'All fly screens are missing' and complaint item 30 relates to the omission of the flyscreen in the bathroom.
The PBRO states in relation to both complaint items that as they are in the contract, they should be installed and that the items are unsatisfactory as they are incomplete.
The respondent says that these items are incomplete and not defective.
Given the applicants entered the property prior to PC and thereafter directly engaged with trades, the Tribunal accepts that these items are incomplete rather than unsatisfactory and therefore will dismiss these items.

Item 31 - Aluminium entry door

This complaint item states, 'Internal bottom part to stop water missing'.
The PBRO notes that this item of complaint relates to the threshold plate, to the aluminium entry door sill and noted that it is the same door type as the Laundry, yet the bottom cover plate is missing. The PBRO assessed the installation of the threshold plate as incomplete and therefore unsatisfactory.
It is unclear who engaged the contractor who installed the doors. For the reasons given under complaint items 29 and 30 above, the Tribunal dismisses this item.

Item 32 - Façade

This item states, '[c]olonial bars for windows are missing' and the PBRO again assesses this work as unsatisfactory on the basis that it is incomplete. For the reasons given in relation to items 29 and 30 above, the Tribunal finds that this item is incomplete and dismisses this item.

Item 33 - Garden

This complaint item states, 'No vacuum breakers installed to taps'.
The PBRO notes that this item of complaint relates to the installation of vacuum breakers to the three external garden taps and assessed the omission of these vacuum breakers as faulty or unsatisfactory.
This is a small item - Mr Kermanshahi assessed the cost of remedial works as $300 and Marquis Group as $20.
However, Mr Gary Hill stated during his evidence that they have not had to fit vacuum breakers since about 2020. His evidence was:[68]
We have – the - the reason why we – we fit these vacuum breakers is to stop the contaminated water coming back through the mains if the mains gets turned off, but now the water metres are fitted with a blackflow prevention device that's actually built in since 2020, so we haven't actually had to fit them.
[68] ts 100, 10 February 2025.
Further, Mr Todaro stated in his evidence that they 'no longer put these on'.[69]
[69] ts 236, 10 February 2025.
The Tribunal prefers the evidence of Mr Hill (who is a plumber of over 50 years' experience) to Mr Chadbund in relation to this item and will dismiss this item on the basis that the lack of vacuum breakers is not faulty or unsatisfactory as they are not required.

Item 35 - Driveway

This item states '[d]rains are full of concrete instead of blue metal or yellow sand plus screws for covers are missing'.
The respondent's position is that it did not organise the contractor who performed the cleaning of the outdoor pavement - the respondent says the paving contractor was engaged to carry out the works including the cleaning of the pavement and that this occurred when he was denied access to the property.[70] Under the contract the applicants are to do the landscaping works.
[70] ts 33, 10 February 2025.
Mr Chadbund gave evidence that what was in the drain did not resemble washed aggregate but was small chunks of grey concrete.[71]
[71] ts 120 - 121, 10 February 2025.
Mr Hill gave evidence about this item and said that he knows nothing about the concrete in the drains in the driveway and that it must have been put in a later stage. He said that concrete was installed in the driveway and maybe when they washed the concrete it went down into the soak wells and created a concrete base at the bottom, however this was not something which they did.[72]
[72] ts 101, 10 February 2025.
The evidence of Mr Todaro in relation to this item was that he had looked at photos he had sent to Mr Forrester on his phone which showed at the bottom of the soak well there were handfuls of tiny little white rocks which is made of washed aggregate paving.[73]
[73] ts 23, 11 February 2025.
Mr Todaro said that one option was that the material entered the drains at slab and the other option was that it was at paving and in his view, it was more likely to be at paving because when 'you put a concrete slab you have sand between the slab and the soak well.'[74]
[74] ts 23, 11 February 2025.
On the basis of the evidence, it is unclear what the material in the drains is and how it was caused (and by whom). The Tribunal will dismiss this complaint item.

Item 36 - Southern side fence

This complaint item states, '[c]olorbond panels damaged'.
This complaint item relates to damage caused to the southern boundary Colorbond fence. Mr Forrester admits this complaint item and said he would supply and install two panels.
Mr Kermanshai's evidence is that the cost of installing a new fence and disposing of the old fence is $1,200 whereas the evidence of Marquis Group is that the remediation works will cost $500 which is a cost of fixing or replacing two panels of fencing only.
The Tribunal, based on its own specialist knowledge, finds that the current cost of Colorbond fencing is $110 a metre and that an amount of $700 will allow for the replacement of the two damaged panels. The Tribunal will therefore make an order that the respondent must pay to the applicant the sum of $700 within 28 days in relation to this item.

Item 37 - Roof

This item states '[n]o flexible ducting connecting sanitary compartments (ie WCs/bathrooms) to flumes installed on the roof cover'.
The PBRO states that this item of complaint relates to the fluming of the exhaust fans to external air.
As previously stated, the Tribunal is of the view that the respondent is responsible for this item. The evidence of Mr Hill was that this should have been done but must have been missed.
Mr Kermanshahi quantifies the cost as $350 and Marquis Group $300.
The Tribunal finds that the work the subject of this complaint item is faulty and unsatisfactory and will order that the respondent pay to the applicant the sum of $300 within 28 days in relation to this complaint item.

Items 38, 40, 41, 42 and 43 - roof

The respondent accepts that all the works completed pursuant to these complaint items are faulty and unsatisfactory and, based on the evidence of Mr Chadbund, the Tribunal is so satisfied.
The respondent requested that the Tribunal make a BRO in the form of a work order, however for the reasons explained earlier, the Tribunal is of the view that a monetary order is more appropriate.
The only issue for the Tribunal to determine is the appropriate amount of money in relation to each complaint item.
Item 38 relates to no collar ties installed. Mr Kermanshahi's evidence is that the cost of remedial works for this item is $2,500 whereas Marquis Group quantify it at $200.
The Tribunal finds that the reasonable cost of remediating this complaint item is $500 on the basis that a roof carpenter will have to enter the roof cavity to perform the remedial works and therefore it is likely to be a greater cost than $200.
Item 40 relates to the roof tie down rods not connected to timber framework. Mr Kermanshahi's evidence is that the cost of remedial works for this item is $4,000 whereas Marquis Group quantify it as $1,500. The Tribunal accepts the evidence of Marquis Group in relation to the cost of remediating this complaint item.
Item 41 relates to the inadequate supply of tie down straps/hoop iron straps in certain areas of the roof, spaced by more than the maximum allowable of 1200 millimetres. Mr Kermanshahi's report states that the cost of remediating this item is $15,000 with the scope of work being stated as follows:
To strip out roofsheets and partially remove external cement float. To tie down hoop iron straps into brickwork and timber framework, re render external wall and re install roof sheets.
Marquis Group has quoted an amount of $500 for this item with the scope of work being:
Install 1 missing hoop iron strap by using J bolt (as is).
The Tribunal is of the view that the reasonable cost of remediating this item is $1,500 based on the factors that it is a difficult location to access and the cost of labour and materials.
Item 42 relates to the timber wall plates secured to the top of the structural beam within the roof space. Mr Kermanshahi's evidence is that the cost of remediation is $1,000 whereas Marquis Group's evidence is that it will cost $300. The Tribunal finds that the estimate of Marquis Group is reasonable and appropriate.
Item 43 concerns roof struts that are only secured at the base with a bracket and not backed by a timber chock or block. Mr Kermanshahi's evidence as to the cost of remediation is $600 whereas the evidence of Marquis Group (which the Tribunal prefers) is that the cost of remediation is $450.
In relation to complaint items 38, 40, 41, 42 and 43 the Tribunal will order that the respondent pay the applicants the amount of $4,250 within 28 days.

Item 45 - Roof

This item concerns missing wool insulation, and the applicant is seeking an amount of $600.
The respondent denies liability for this item on the basis that he says Mr Rad engaged the contractor and that the work occurred after lockup.
There is no evidence before the Tribunal as to who engaged the contractor, and the Tribunal therefore will dismiss this complaint item.

Item 51 - Eastern side spandrel

The PBRO states that this item of complaint relates to the finish of the paintwork upon the timber spandrel on the rear elevation.
This item was completed by the roof carpenter and the Tribunal has found that the respondent carried out the works completed by the roof carpenter.
Mr Kermanshahi's costing of this item is $500 and Marquis Group states that it is $200.
The Tribunal finds that this complaint item is faulty and unsatisfactory and will order that the respondent pay the applicant the amount of $200 within 28 days.

Item 52 - Northern and southern boundary fences

Mortar smears on northern and southern fences. Mr Kermanshahi's costing is $2,000 which is based on new fences and the costing of Marquis Group is $400.
The respondent says that the smears were likely caused by the plastering. There is no evidence before the Tribunal as to who caused the smears. The Tribunal finds that a defect such as this would usually be addressed at handover, and in a context where the applicants moved into the property prior to PC, the Tribunal will dismiss this item.

Item 53 - Hot water unit

This complaint item is in relation to the hot water piping from the unit not being insulated.
This is a very minor complaint item. The respondent has found earlier in these reasons that the respondent is responsible for the works completed by Mr Hill and will award a sum of $50 in relation to this item, payable within 28 days.

Item 54 – Hallway & 55 - Master bedroom WIR

Item 54 concerns the internal hallway wall corner between the kitchen and bedroom 4 servicing all other bedrooms deviating from square by a margin exceeding the acceptable tolerance according to the WA Guide to Standards & Tolerances, 2019.
The PBRO states that this item of complaint relates to deviations in the surface of the plastered walls to external corner in the hallway adjacent to the bedrooms.
Item 55 concerns the northern side walk in robe wall deviating from square by a margin exceeding the acceptable tolerance according to the WA Guide to Standards & Tolerances, 2019.
The PBRO states that this item of complaint relates to deviations in the surface of the plastered walls(s), from the external corner of the Ensuite to the end of the northern walk-in-robe.
The respondent denies this item on the basis that Mr Rad engaged the plasterer. However, in the view of Mr Chadbund (which the Tribunal accepts) this issue was caused by a bricklaying fault and therefore the respondent is responsible.[75]
[75] ts 162, 10 February 2025.
Mr Kermanshai's costing for item 54 is $38,000 with the scope of work stated as:
To strip out white set, skirting boards, cornices, Gyprock ceilings, A/C vent, electrical sockets. To re render hallway walls and apply white set, reinstall Gyprock ceilings, cornices, A/C vent and electrical sockets and repaint the walls.
Mr Kermanshahi's costing for item 55 is $25,000 with a similar scope of work.
The costings of Marquis Group for both items is $2,500 with the scope of work for both items detailed as:
Prepare and etch wall and replaster the wall and repaint (if required new cornice and skirting will be installed).
The evidence of Mr Todaro was that the fault could be fixed by re-skinning the wall and it was not necessary to knock out walls.[76]
[76] ts 245, 10 February 2025.
Mr Chadbund gave evidence that the scope of work proposed by Mr Kermanshahi was excessive for both items.[77]
[77] ts 146, 10 February 2025.
The Tribunal prefers the evidence of Marquis Group and will order that the respondent pays the applicant the sum of $2,500 in relation to each of items 54 and 55 within 28 days.
Rental allowance
The applicants are also seeking an allowance of $1,500 per week for 8 months so they can rent a property whilst the repairs are taking place, based on the evidence of Mr Kermanshahi that this is the length of time the repairs will take.
The evidence of the Marquis Group was that the repairs would take 4 - 6 weeks to complete and it is possible for the applicants to live in the house when the works are being completed given they have three bathrooms and none of the bedrooms are being touched.[78]
[78] ts 21, 11 February 2025.
The Tribunal prefers the evidence of the Marquis Group. The Tribunal finds that the repairs will not take anywhere close to 8 months given that the scope of work proposed by Mr Kermanshahi is on the basis that everything is brand new (which has not been accepted by the Tribunal). Further, Mr Kermanshahi gave evidence at the hearing of the reason as to why he recommended the applicants move out whilst the repairs occur and that was on the basis that he could not afford for the applicants' children to be injured as his insurance does not cover that.[79] In the Tribunal's view this factor is not relevant to whether or not it is reasonable for the respondent to pay the applicants rental costs during the time of the repairs.
[79] ts 24, 11 February 2025.
In the circumstances the Tribunal declines to allow a sum for rent. However, it will allow an allowance for bins for rubbish removal of $800 (which is an amount based on the Marquis Group quote).
The Tribunal has found that the following complaint items should be dismissed: Items 8, 9, 10, 12, 13, 14, 15, 17, 19, 24, 25, 29, 30, 31, 32, 33, 35, 45 and 52.
The Tribunal will order that the respondent is to pay the applicant the following amounts in relation to the following complaint items:
(a)Item 18 - $7,700;
(b)Item 20 - $500;
(c)Item 21 - $1,000;
(d)Item 22 - $5,000;
(e)Item 23 - $300;
(f)Items 26, 27, 46 and 50 - $2,700;
(g)Item 36 - $700;
(h)Item 37 - $300;
(i)Item 38 - $500;
(j)Item 40 - $1,500;
(k)Item 41 - $1,500;
(l)Item 42 - $300;
(m)Item 43 - $450;
(n)Item 51 - $200;
(o)Item 53 - $50;
(p)Item 54 - $2,500;
(q)Item 56 - $2,500; and
(r)Rubbish bins - $800.
(Total $28,500).

Orders

The Tribunal orders:
1.Pursuant to s 36(1)(b) of the Building Services (Complaint Resolution and The Administration) Act 2011 (WA) the Tribunal orders that the respondent must pay the applicant the sum of $28,500 within 28 days of the date of this order.
2.The application is otherwise dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS N EAGLING, MEMBER
9 JUNE 2025