BETHAM and TENDRS PTY LTD
[2024] WASAT 123
•21 NOVEMBER 2024
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION: BETHAM and TENDRS PTY LTD [2024] WASAT 123
MEMBER: MR M BENTER, MEMBER
MR S BURNS, SESSIONAL MEMBER
HEARD: 11 SEPTEMBER 2024
DELIVERED : 21 NOVEMBER 2024
FILE NO/S: CC 369 of 2024
BETWEEN: MICHAEL BETHAM
Applicant
AND
TENDRS PTY LTD
Respondent
Catchwords:
Building Services (Complaint Resolution and Administration) Act 2011 (WA) - Home building work contract complaint - Failure by respondent to engage in proceedings - Whether builder breached contract to install swimming pool - Whether builder terminated contract without proper basis - Appropriate HBWC remedy order
Legislation:
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5(2), s 41, s 43
Corporations Act 2001 (Cth), s 109X, s 142, s 146, s 201, s 203AB(1), s 203AB(2)
Home Building Contracts Act 1991 (WA), s 3, s 17, Pt 2
State Administrative Tribunal Act 2004 (WA), s 63(2)
Result:
Application allowed in part
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | No Appearance |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Deshmukh and Distinctive Building Services Pty Ltd [2024] WASAT 15
Hutton, in the matter of Big Village Australia Pty Ltd (Administrators Appointed) [2023] FCA 48
Louden and Changeovers Pty Ltd (ABN 18 146 623 190) [2021] WASAT 164
Total Waste Management Pty Ltd v The City of Kalgoorlie-Boulder [2010] WASC 234
REASONS FOR DECISION OF THE TRIBUNAL:
Background
This is an application by the applicant, Mr Betham, seeking that orders be made against the respondent, Tendrs Pty Ltd, in relation to the supply and installation of a below ground swimming pool (the Works) that was contracted to be completed by the respondent at the applicant's home in Leeming.
After partly undertaking the Works, the respondent gave notice that it was terminating the Contract for the Works and left the site with the Works unfinished. The Works were ultimately completed by the applicant and, in this application, he seeks orders requiring the respondent to pay expenses and other compensation that he says were caused by the respondent's failure to complete the Works as contracted.
Evidence at the final hearing
The following witnesses gave evidence at the hearing:
(a)The applicant, Mr Betham;
(b)The applicant's partner, Ms Sheryle Ramsay; and
(c)Mr Grant Richardson, the owner and operator of a pool business called Pool Matrix, who provided advisory services to the applicant and undertook a small amount of work in relation to the completion of the swimming pool.
The following documents were marked as Exhibits in the course of the final hearing:
Exhibit 1:The hearing book prepared by the Tribunal for the purposes of the final hearing, comprising the application form and attachments lodged with the Tribunal by the Building Commissioner at the commencement of the proceedings, relevant orders made by the Tribunal and the documents lodged in the proceedings by the applicant pursuant to the Tribunal's orders;
Exhibit 2:Letter dated 10 September 2024 from Mr Richardson setting out a short summary of his evidence;
Exhibit 3: Bundle of documents provided by the applicant during the course of the final hearing;
Exhibit 4: Quotation dated 7 September 2023 from Reflections Pool & Spa Care for the estimated cost of completing the pool.
Position in respect of the respondent
In light of the failure by the respondent to file any documents for the purposes of this application, or to otherwise appear at any hearing in the Tribunal including the final hearing, it is important to set out some detail of the history of the Tribunal proceedings, as apparent from both the Tribunal file and the documentary evidence before the Tribunal at the final hearing.
When the application was lodged in this matter on 7 June 2024, by way of referral from the Building Commissioner, a copy of the Investigation Report dated 29 May 2024 from the Building and Energy Investigator was included with the application form. In relation to the role of the respondent in the Building and Energy complaint process, the Investigation Report for Complaint No. BC2024-267 provides, relevantly, as follows:[1]
(a)following the acceptance of the building complaint on 6 March 2024, the respondent advised Building and Energy that Tendrs Pty Ltd is no longer trading and Mr John Baverstock resigned as a director of the company;
(b)the Building and Energy Complaints Officer was informed that a separate civil claim had been lodged by the complainant against Mr Baverstock personally and that this was due to go to hearing on 20 May 2024;
(c)as the Building and Energy Complaints Officer considered that the civil action was related to the building complaint, the parties were advised that the Complaints Officer intended to follow up the parties following a hearing listed in the civil action on 20 May 2024; and
(d)the respondent provided a further response, informing the Complaints Officer that Mr Baverstock is no longer a director of Tendrs Pty Ltd, the company would soon be deregistered and the civil action was instigated against Mr Baverstock, not Tendrs Pty Ltd; and
(e)considering the parties' respective positions, the Complaints Officer wrote to the parties advising of their intention to recommend the matter be referred to the Tribunal to provide the parties with the opportunity to present their case and evidence at a hearing.
[1] Exhibit 1, pages 13 - 14.
Based upon a review of the Tribunal's records in respect of this matter, the only contact that appears to have ever been made with the Tribunal, by anyone associated with the respondent, was by way of the submission of an online enquiry form via the Tribunal's website on or about 17 July 2024. The record of that online enquiry indicates that the person submitting the form did so under the name of 'John Baverstock' with an address given in Bahama Way, Banksia Grove and referring to the Tribunal proceeding number in respect of this application. The content then included in the online enquiry form, addressed to the attention of a Senior Member of the Tribunal, stated relevantly:
Note that documents were received by post at an address in Banksia Grove WA. This address is a private residence owned by someone know [sic] to me and is not an address to be used for the purpose of issuing documents. Note also that I am no longer a Director of Tendrs Pty Ltd and I cannot not [sic] Act, comment, discuss or be actively involved in the business of Tendrs Pty Ltd. I suggest you refer the matter to ASIC.
If indeed submitted by Mr Baverstock, being the inference the Tribunal considers must be drawn, this online enquiry form raises significantly more questions than it appears to be seeking to answer. Further, assuming it was lodged by Mr Baverstock himself, as the Tribunal considers to be the case, it also clearly demonstrates both his awareness of the proceedings and also what is clearly his position or belief that the matter now has nothing to do with him.
The respondent to this matter, Tendrs Pty Ltd, has otherwise failed to engage in these proceedings in any way. Specifically, since the commencement of this proceeding, the respondent has failed to:
(a)attend any of the directions hearings before a Senior Member of the Tribunal on 25 June 2024, 10 July 2024 and 8 August 2024;
(b)lodge any documents with the Tribunal, whether in accordance with the Tribunal's orders or otherwise; and
(c)attend the final hearing on 11 September 2024.
The Tribunal is satisfied that the records of the Tribunal establish that the notice to the parties of the first directions hearing, listed for 25 June 2024, was sent by the Tribunal on 12 June 2024 to the email address for the respondent provided to the Tribunal by Building and Energy, but that the email was not opened by the respondent.
In light of concerns as to the correct address for the respondent, one of the orders made by the Tribunal on 25 June 2024 required the applicant to file with the Tribunal and give to the respondent a copy of a current Australian Securities & Investments Commission (ASIC) company extract of the respondent.
The records of the Tribunal establish that the order dated 25 June 2024 was sent by email on 26 June 2024 to the email address provided to the Tribunal by Building and Energy, but that the email was again not opened by the respondent.
On 9 July 2024, the applicant lodged with the Tribunal a current and historical ASIC company extract in respect of the respondent, Tendrs Pty Ltd ACN 603 586 661.[2] That company extract, dated 9 July 2024, discloses that:
(a)the respondent was registered on 7 January 2015 and remained registered as at the date of the extract;
(b)from registration, the registered office address of the respondent was care of an accounting firm, however on 20 June 2023 a Form 203W Notification of Withdrawal of Consent for Registered Office was lodged with ASIC;
(c)the accounting firm then ceased to be the registered office address on 29 July 2023 and, from 30 July 2023 to the date of the company extract, the registered office address is recorded as 14 Bloodwood Drive, Marangaroo WA 6064 (the Marangaroo address);
(d)from registration until the date of the company extract, the principal place of business of the respondent has at all times been the Marangaroo address;
(e)from registration, Mr John William Baverstock was the sole Director and Company Secretary of the respondent, however he is recorded as having ceased in both roles on 6 March 2024, with no other Director or Company Secretary appointed;
(f)in respect of both the Director and Company Secretary roles, the address shown for Mr Baverstock is the Marangaroo address; and
(g)the sole shareholder of the respondent is also recorded as being Mr Baverstock, again at the Marangaroo address and Mr Baverstock was still the sole shareholder as at the date of the company extract.
[2] Exhibit 1, pages 21 - 24.
On 10 July 2024, at the second directions hearing in the matter, the Tribunal made orders as follows:
The Tribunal notes that the ASIC company extract of TENDRS PTY LTD dated 9 July 2024, lodged with the Tribunal by the applicant on 9 July 2024, states that 14 Bloodwood Drive, Marangaroo, Western Australia 6064 is the current registered address and the current principal place of business of the respondent.
The Tribunal orders:
1.The respondent's address for service is changed to: 14 Bloodwood Drive, Marangaroo, Western Australia 6064.
2.The Tribunal will post the orders made by the Tribunal on 25 June 2024 and these orders to the respondent's address of 14 Bloodwood Drive, Marangaroo, Western Australia 6064.
The Tribunal is satisfied that the records of the Tribunal establish that on 11 July 2024 the following documents were posted by the Tribunal staff to the respondent at the Marangaroo address:
(a)a further copy of the order dated 25 June 2024 together with SAT Form - Book of Documents; and
(b)a copy of the order dated 10 July 2024.
The Tribunal is also satisfied that the records of the Tribunal establish that on 9 August 2024 staff of the Tribunal posted to the respondent at the Marangaroo address a copy of the order dated 8 August 2024, by which the proceeding was listed for final hearing on 11 September 2024.
All Australian companies have obligations under the Corporations Act 2001 (Cth) (Corporations Act) to ensure that accurate information is provided to ASIC in respect of the company, including:
(a)the requirement in s 142 to lodge a notice of change of registered office no later than 28 days after the change occurs; and
(b)the requirement in s 146 to lodge a notice of change to the principal place of business no later than 28 days after the change occurs.
As is plain from the company extract, the Marangaroo address has been recorded on the records of ASIC as:
(a)the registered office of the respondent at all times from 30 July 2023; and
(b)the principal place of business of the respondent at all times from 7 January 2015.
Section 109X of the Corporations Act provides relevantly that, for the purposes of any law, a document may be served on a company by leaving it at, or posting it to, the company's registered office.
In the circumstances set out above, the Tribunal finds that the orders posted to the respondent at the Marangaroo address constitute proper service of those documents on the respondent.
Section 63(2) of the State Administrative Tribunal Act 2004 (WA) states:
If a person, including a party, to whom notice has been given in accordance with the rules fails to attend, the hearing may be held in the absence of that person.
On the basis of the above matters, it was determined by the Tribunal at the commencement of the final hearing that the hearing should proceed in the absence of the respondent.
In relation to Mr Baverstock purportedly ceasing as a director of the respondent, the Tribunal notes that:
(a)the ASIC company extract does not disclose the basis upon which Mr Baverstock is recorded as having ceased to be a director of the company; and
(b)the company extract otherwise records that Mr Baverstock is a previous director and previous company secretary of the respondent and that, in respect of both roles, the 'cease date' is recorded as 6 March 2024, being the same date that the building complaint the subject of this application was accepted by the Building Commissioner's delegate.[3]
[3] Exhibit 1, page 14.
It is not possible from the evidence before the Tribunal to ascertain the basis upon which Mr Baverstock 'ceased' to be a director of the respondent. However, to the extent that Mr Baverstock sought to resign as a director of the respondent, the provisions of the Corporations Act render any such resignation ineffective.
In relation to the requirement for a company to always have at least one director, the Corporations Act provides relevantly:
(a)at s 201, that a proprietary company must have at least one director; and
(b)at s 203AB(1) that the 'resignation of a director of a company does not take effect if, at the end of the day that the resignation is to take effect, the company does not have at least one director'.
While s 203AB(2) of the Corporations Act provides, in effect, that subsection (1) does not prevent the resignation of a director taking effect on or after the day the winding up of the company is taken to have begun, that exception is not relevant in respect of the respondent in this matter. The company extract clearly establishes that the respondent remained registered as at the date of the extract and there is no reference to any steps in respect of winding up of the company having been taken.
In Hutton, in the matter of Big Village Australia Pty Ltd (Administrators Appointed) [2023] FCA 48, Anderson J at [27] stated as follows in respect of s 203AB:
Section 203AB was introduced to the Act on 18 February 2020 and does not appear to have been the subject of judicial consideration. However, its terms are clear. It prevents a resignation taking effect if that resignation would leave the company without a director. In the present case, it operated to prevent Ms Kracht's resignation taking effect on 13 January 2023. That meant that, notwithstanding cl 11.5(c) of the Company's constitution, which provides that "the office of a Director becomes vacant if the Director … resigns as Director by giving written notice of resignation to the Company …", she remained the director at the time she passed the Resolutions. Ms Kracht relied on the assumption that the legislation had that effect at the time she passed the Resolutions.
It follows in this matter that, if Mr Baverstock sought to resign as a director of the respondent,[4] that resignation did not take effect, as the company would not then have still had at least one director. If Mr Baverstock ceased to be a director for some other reason, the respondent would in any event be in breach of the requirement in s 201 of the Corporations Act to have at least one director at all times.
[4] Noting that the Building & Energy Investigation Report records that the respondent had advised that Mr Baverstock had resigned as a director: Exhibit 1, page 13.
It would appear from Mr Baverstock's limited engagement with the Building and Energy Complaints Officer and the online enquiry form submitted to the Tribunal, as referred to above, that he considers that his purported ceasing as a director of the respondent means that this proceeding, in effect, has nothing to do with him.
If this is indeed Mr Baverstock's position, the Tribunal notes also that:
(a)the conduct of the respondent relied upon by the applicant in support of the orders sought in this application was alleged conduct by Mr Baverstock himself on behalf of the respondent;
(b)irrespective of whether Mr Baverstock remains a director of the respondent by reason of the provisions of the Corporations Act, he was the sole director and company secretary of the respondent at all material times relevant to the alleged conduct of the respondent the subject of this proceeding; and
(c)since its first registration up to the date of the company extract dated 9 July 2024, Mr Baverstock has been the sole shareholder of the respondent.
In any event, the proper respondent in this matter is Tendrs Pty Ltd and, while it remains a registered corporation, the Tribunal considers there to be no obstacle with the applicant proceeding against that company. Further, by reason of the matters set out above, the Tribunal finds that all reasonable steps have been taken to serve the respondent with documents in relation to the proceedings and that the company has determined to play no active role in the proceedings.
For completeness, the Tribunal also notes that, as recently as 20 November 2024, the respondent remains registered and the publicly available information on the ASIC website includes no reference to any winding-up or strike out action in progress in respect of the respondent.
Nature of the Building Complaint and issues for determination
On 16 January 2024, the applicant lodged a complaint with the Building Commissioner in relation to the Works pursuant to the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (the BSCRA Act) comprising four complaint items, set out in the list of complaint items referred by the Building Commissioner to the Tribunal as follows:[5]
[5] Exhibit 1, pages 11 - 12.
Item Number Location Description of Complaint Item Remedy Sought 1 Tendrs Pty Ltd failed to undertake or complete the project in a timely, efficient and professional manner, instead producing lengthy delays, poor project supervision, and pool walls constructed with non-conforming or otherwise erroneous features. Respondent took over 4 months to obtain a building permit. No project plan ever supplied. Pool length built too short. Pool walls too high. Pool steps unuseable. Work ceased 6 months from the contract date, half finished. Site left in a mess. Compensation (as set out in
Complaints 3 & 4).2 Tendrs Pty Ltd terminated the pool construction contract on unreasonable and spurious grounds 1 with the contract works still substantially incomplete, despite the fact that the company had already been paid more than 80% of the total contract sum. Tendrs PL terminated the contract on 12th August 2023 without prior discussion. Conciliatory offers made by the complainant in August and September were rejected. Compensation (as set out in
Complaints 3 & 4).3 The termination of the contract caused me to have to complete the works at considerable additional cost, with final costs exceeding the contract sum by $12,149. Works carried out by the complainant included electrics, soil backfill, plumbing, waterproofing & tiling, pool equipment. Total cost of construction = $35,249. Compensation in the amount of $12,149. 4 Being forced to complete the project myself caused me a loss of income in the period September-December 2023 of $19,200. My time had be diverted from my own contract work to pool construction.
Time spent on the project from 12th August to 20th December was 296 hours, representing lost income of $19,200.Compensation in the amount of $19,200.
The Tribunal notes that, while there are four separate complaint items, they have a significant degree of overlap and, in effect, all arise from the applicant's position that the respondent purported to terminate the contract for the pool on a spurious basis, effectively abandoned the site and refused to complete the required work pursuant to the relevant contract.
Pursuant to the BSCRA Act, an aggrieved party may make a complaint to the Building Commissioner in respect of, in essence:
(a)a regulated building service not being carried out in a proper and proficient manner or being faulty or unsatisfactory (being a 'building service complaint' for the purposes of the BSCRA Act); and/or
(b)various specified contractual issues in respect of a home building work contract (being a 'HBWC complaint' for the purposes of the BSCRA Act).
The Tribunal notes that, while complaint items 2 to 4 are, on the face of it, limited to contractual complaints, complaint item 1 includes reference to faulty or unsatisfactory work, namely the pool being built too short, the pool walls being built too high and the steps being unsatisfactory.
In the original complaint form lodged by the applicant with the Building Commissioner,[6] the complaint is recorded as being in respect of both a building service complaint and a HBWC complaint.
[6] Exhibit 1, pages 4 - 10.
However, in the Investigation Report by Building and Energy, it is stated that:[7]
The complainant lodged a Building Service/Home Building Work Contract complaint on 16 January 2024, however, due to the complaint items and remedies sought, it was determined the complaint was contractual in nature only. The complaint was accepted by the Building Commissioner's delegate on 6 March 2024.
[7] Exhibit 1, page 13.
In due course, the application lodged with the Tribunal on 7 June 2024 by the Building Commissioner was in respect only of a HBWC complaint.[8]
[8] Exhibit 1, page 2.
Legislative framework
Pursuant to s 5(2) of the BSCRA Act, an owner or builder under a home building work contract may make a complaint to the Commissioner about a matter referred to in s 17 of the Home Building Contracts Act 1991 (WA) (the HBC Act), with such a complaint being defined as a 'HBWC complaint' in s 3 of the BSCRA Act.
Section 17 of HBC Act relevantly provides that an owner may make a HBWC complaint if the owner claims that there has been a breach of the home building work contract, not being a breach in respect of which a building remedy order may be made, or a breach of a provision of Pt 2 of the HBC Act.
The HBC Act at s 3 defines a 'home building work contract' to be 'a contract between a builder and an owner for the performance by the builder of home building work'. The definition otherwise excludes certain contracts, none of which exclusions are relevant or applicable to this matter.
In turn, s 3 of the HBC Act, relevantly to the Works associated with the construction of a swimming pool in this matter, provides that:
(a)'builder' means 'a person who carries on … a business which consists of or includes the performing of home building work for others';
(b)'home building work' means 'the whole or part of the work of … constructing or carrying out any associated work in connection with … an existing dwelling'; and
(c)'associated work' includes 'swimming pools'.
Where a HBWC complaint is referred to the Tribunal, s 43 of the BSCRA Act provides that the Tribunal may:
(a)if satisfied that the order is justified, make a HBWC remedy order; or
(b)otherwise, decline to make the order.
In turn, s 41 of the BSCRA Act sets out the various matters that may be the subject of a HBWC remedy order. Relevantly, these include:
(a)an order requiring any specified work to be done;
(b)an order that a person pay a specified amount payable under the contract;
(c)an order declaring that a specified amount is not payable to a person under the contract and, if already paid, an order that the builder or owner repay that amount;
(d)an order that a person pay specified compensation for loss or damage caused by any breach of the contract or of a provision of Part 2 of the HBC Act; and/or
(e)An order declaring that a specified amount of money claimed or money claimed for specific work is not payable by a person.
As a result of the applicant's endeavours, the pool is now complete and no order is sought in this application to require the respondent to fix any allegedly defective works that may have arisen in respect of the pool, or to otherwise complete the Works.
Instead, the only remedy now sought by the applicant is compensation in respect of:
(a)the additional costs incurred by him in achieving the completion of the pool; and
(b)the loss of income said to have been suffered by him as a result of dedicating significant time to the project, with such time then being unable to be used to generate income in his usual occupation.
Consistent with previous decisions by the Tribunal,[9] the questions for determination in respect of a HBWC complaint are:
(1)Did the parties enter into a home building work contract?
(2)Did the respondent breach the terms of the home building work contract?
(3)If the answer to both questions 1 and 2 is 'yes', what is the appropriate HBWC remedy order?
[9] See in particular Louden and Changeovers Pty Ltd (ABN 18 146 623 190) [2021] WASAT 164 at [6].
The Contract and Works in issue
Evidence was given at the hearing by both the applicant and his partner in relation to the first engagement with the respondent, the entering into of the contractual arrangements for the Works, the issues that then arose in the course of the Works and the circumstances surrounding the respondent ultimately abandoning the Works.
The applicant and his partner gave clear and compelling evidence regarding the matters in issue, supported by the applicant's documentary evidence. Based on the evidence before the Tribunal, the history of the engagement between the applicant and the respondent is as follows.
In early 2023, two contracts were entered into between the applicant and the respondent in respect of the Works.
The first was a contract titled 'Preparation of Permit Drawings and Documents Agreement' dated 18 January 2023,[10] by which the applicant agreed to pay the sum of $2,750 (including GST) for the respondent 'to prepare architectural drawings and specifications suitable for submission to the local council/shire for the purpose of obtaining a permit for the construction of a swimming pool' at the applicant's residence.
[10] Exhibit 1, pages 35 - 38.
No issue is raised by the applicant in these proceedings in relation to this first contract.
The second contract is titled 'Swimming Pool Construction Contract' and was dated 15 February 2023 (the Contract).[11] Pursuant to the Contract, the applicant agreed to pay the sum of $23,100 (including GST) to complete the Works. While not mentioned anywhere in the Contract as a trading name for the respondent, email correspondence in respect of the Contract and invoices that were subsequently issued in respect of the Works include what appears to be a trading name used by the respondent of 'Pool Build WA'.
[11] Exhibit 1, pages 40 - 47.
The Contract itself includes no meaningful detail as to the scope of the Works. Further, while it refers to 'Contract Documents' comprising 'Architectural Drawings', 'Structural Drawings' and 'Specification', those documents were not included with the copy of the Contract originally lodged by the applicant and included in Exhibit 1.
However, during the course of the hearing, the applicant lodged the further bundle marked as Exhibit 3, which includes what appears to be the Specification referred to in the Contract, together with a number of drawings in respect of the Works. Both the Specification and drawings include further detail as to the Works required to be undertaken.
Following the parties entering into the Contract, there was some initial delay in the respondent obtaining the necessary building licence, with the licence being issued by the City of Melville on 20 June 2023.[12]
[12] Exhibit 1, page 23.
The first significant issue in respect of the Works then arose in early July 2023, when the applicant, in discussions with the respondent's employees or contractors who were setting out the dimensions of the pool and constructing the pool walls, discovered that the location of a grout column would result in the pool being constructed with a length of 4.6 metres instead of the 4.8 metres set out in the drawings for the Works.[13]
[13] Exhibit 1, page 49, email dated 10 July 2023 from the applicant to Mr Baverstock.
In response, Mr Baverstock on behalf of the respondent emailed the applicant on 10 July 2023 to advise that, due to the reduction in the pool size, he would provide a credit to the applicant based on the reduced quantities, with a spreadsheet attached to the email recording a total credit against the Contract price of $440.00 (including GST).[14] The email also refers to having attached to it an invoice for the pool walls progress payment, although a copy of this invoice is not included in the material lodged with the Tribunal. The applicant's evidence at the hearing, which the Tribunal accepts, is that the invoice was the first of two versions of Invoice 1766 and was for a total sum of $4,642.
[14] Exhibit 1, page 50.
The applicant's evidence at the hearing was that this proposed credit of $440 was not accepted by him and that he and Mr Baverstock ultimately agreed to a $1,000 reduction in the Contract price on account of the reduced size of the swimming pool.
The evidence before the Tribunal demonstrates that the process of this price reduction being agreed, and the revised invoicing for the pool walls stage of the Works, took place as follows:
(a)following receipt of the 10 July 2023 email referred to above, the applicant in discussions with Mr Baverstock indicated that he was not prepared to pay the invoice due to non-conforming work, namely the pool walls being built incorrectly with the result that the pool was shorter than required under the Contract;
(b)the applicant also emailed Mr Baverstock on 12 July 2023 to, among other things, express his disappointment at the reduction in size of the pool, particularly as 'a lot of time had gone into working out the max size we could fit into that spot';[15]
(c)later that day, Mr Baverstock on behalf of the respondent emailed the applicant, stating in response to the applicant's email: 'It annoys me but given the circumstances there is little I can do';[16]
(d)some days later, on 19 July 2023 at 12.49 am, Mr Baverstock emailed the applicant, stating: 'I have had enough of this. I will increase the credit for the pool length to $1,000. That it is' [sic];[17]
(e)at 11.06 am on 19 July 2023, the applicant emailed Mr Baverstock, stating relevantly: 'I want a pool light installed as discussed, but if you want to knock $200 off the $1,000 to offset light-fitting costs that's fine by me';[18]
(f)at 11.09 am on 19 July 2023, Mr Baverstock responds to the above email from the applicant, simply stating: 'Thank you';[19]
(g)on the evening of 19 July 2023, at 6.06 pm, Mr Baverstock then emailed the applicant, stating that a named person, assumed to be a staff member of the respondent, 'tell me the amended payment has still not been received?';[20]
(h)in response, the applicant emails Mr Baverstock on 19 July 2023, with the email showing the time of 4.12 pm, although either this or the times of Mr Baverstock's emails on this date appear to be in error or based on a different time zone setting, given the sequence of the emails. In this email, the applicant states: 'No. I assumed an amended invoice would be sent to me. Since receiving your email [late this morning], I've now paid you $3,642';[21] and
(i)the next email is then from Mr Baverstock on 19 July 2023, with a time shown of 6.29 pm and which states, in effect, that it is attaching the invoice for $4,082.[22]
[15] Exhibit 1, page 51.
[16] Exhibit 1, page 51.
[17] Exhibit 1, page 87.
[18] Exhibit 1, page 87.
[19] Exhibit 1, page 87.
[20] Exhibit 1, page 86.
[21] Exhibit 1, page 86, and noting that the amount of $3,642 aligns with the amount on the first version of Invoice 1766 of $4,642, less the credit of $1,000, but failing to re-instate the previous proposed credit of $440.
[22] Exhibit 1, page 86 and with the invoice itself at page 85.
This sequence in respect of the invoicing for the pool walls stage of the Works is critical, given it is the payment of this invoice that appears to be the primary, if not the only, basis for the respondent's purported termination of the Contract.
This purported termination occurred on 12 August 2023 when Mr Baverstock on behalf of the respondent sent an email to the applicant stating:[23]
Mike
Notice Under the Contract
We have been reviewing the contract progress to date and feel that given the issues with late payments we are not prepared to incur further debt to complete the contract. The contract provides for us to terminate the contract where the Client fails to make any payment required under the Contract with 7 days from such payment being due. We refer in particular to invoices relating to the pool walls.
We are exercising our right herein. The Contract is herein Terminated.
Regards
JB
[23] Exhibit 1, page 73.
Following this purported termination of the Contract by the respondent, there was some limited correspondence between the parties in relation to options for the Works to be completed by or with some support from the respondent.[24] Ultimately, that correspondence did not progress the matter.
[24] Exhibit 1, pages 74 - 78.
On 22 September 2023, Mr Baverstock on behalf of the respondent sent an email to the applicant that stated, relevantly:[25]
The issues relating to why the pool was built smaller have been addressed and had nothing to do with why the Contract was Terminated. The contract was Terminated because you failed to meet your obligations in terms of paying invoices on time. Nothing else. We have a right to Terminate when we consider there is a risk of not being paid.
[25] Exhibit 1, page 79.
With there being no further agreement for the respondent to complete the Works, the applicant ultimately proceeded to complete the swimming pool himself and it is the associated costs and loss of income that the applicant claims in this proceeding.
Consideration - HBWC complaint
By reason of the provisions of the BSCRA Act and the HBC Act set out above, the Tribunal finds that the parties entered into a home building work contract on the basis that:
(a)the construction of a swimming pool constitutes 'associated work';
(b)undertaking associated work in connection with an existing dwelling, as was the case in this matter, constitutes 'home building work';
(c)as a company that carried on a business that included the performance of home building work, the respondent is a 'builder' for the purposes of the legislation; and
(d)the Contract, being a contract between a builder and the applicant for the performance by the builder of home building work, constituted a 'home building work contract'.
As to the question of whether the respondent breached the terms of the home building work contract, the applicant did not in the original complaint items referred to the Tribunal specify any particular breach of contract by reference to the terms of the Contract itself.
Rather, as noted above, the combined effect of the four complaint items is that the applicant claims the respondent purported to terminate the contract for the pool without any proper basis to do so, effectively abandoned the site and refused to complete the required work pursuant to the Contract.
Throughout his material filed with the Tribunal, the applicant has described the respondent's decision to purportedly terminate the Contract, and its claimed reason for doing so, as spurious. For the reasons that follow, the Tribunal is satisfied that 'spurious' is the entirely appropriate descriptor.
The sole basis for termination of the Contract identified by Mr Baverstock, on behalf of the respondent, in his emails to the applicant was the allegedly late payment of one or more invoices. Specifically, as noted above:
(a)the email of 12 August 2023 from Mr Baverstock, by which the respondent purported to terminate the Contract, stated relevantly:[26]
The contract provides for us to terminate the contract where the Client fails to make any payment required under the Contract with 7 days from such payment being due. We refer in particular to invoices relating to the pool walls.
We are exercising our right herein. The Contract is herein Terminated.
(b)the email of 22 September 2023 from Mr Baverstock to the applicant stated relevantly:[27]
The issues relating to why the pool was built smaller have been addressed and had nothing to do with why the Contract was Terminated. The contract was Terminated because you failed to meet your obligations in terms of paying invoices on time. Nothing else. We have a right to Terminate when we consider there is a risk of not being paid.
[26] Exhibit 1, page 73.
[27] Exhibit 1, page 79.
The applicant's evidence, which the Tribunal accepts, is that prior to the email of 12 August 2023, the respondent had given no prior notice that it was considering termination of the Contract.
In relation to the form of the Contract, the Tribunal observes that it is a significant departure from what would generally be considered to be standard or common terms in home building work contracts in Western Australia. For example, the Contract:
(a)is replete with vague, poorly written and unclear terms;
(b)has numerous problems with the consistency of use of defined terms or using terms that are capitalised as if defined but with no definition provided; and
(c)includes some matters that are plainly incorrect, such as the reference in clause 24D to referring a dispute to a mediator to seek determination and agreeing to be bound by the determination of the mediator, when a mediator's role is not to make any determination.
In relation to the payment of invoices, clause 6C of the Contract states:[28]
When a payment is due the Contractor will issue a written invoice stating the payment number, the stage, the value of the invoice and the account details for a direct debit of the amount into the Contractor's account. Within 1 Day of receiving the invoice the Client will make a direct debit of the full amount into the Contractor's account.
[28] Exhibit 1, page 41.
In clause 3 of the Contract, 'Days' is defined to mean 'working days excluding weekends and public holidays'.
On the face of it, the requirement for payment within a business day of issue of an invoice is patently unfair and unreasonable and fails to take account of the realities and practicalities associated with making payments, not the least of which being the processing times for payments by financial institutions.
In any event, by the terms of the Contract, the failure to pay an invoice within one business day does not then entitle the respondent to terminate the Contract. Rather, clause 24B states:[29]
If the Client fails to make any payment required under this Contract within 7 Days from the date such payment is required, the Contractor shall have the right to terminate this Contract immediately upon written notice to the Client.
[29] Exhibit 1, page 45.
Again, this clause appears on the face of it to be patently unfair and unreasonable, given the significant impact on the customer in the event the contract is terminated in such circumstances and the likelihood that any delay in payment could, in most circumstances, be remedied with little or no adverse impact upon the builder.
The clause also appears to be inconsistent with one or more of the obligations in the Contract to give written notice to remedy any alleged breach[30] and/or to engage in one or other of the dispute resolution processes in clause 24D or clause 25B.[31]
[30] Clause 24A, Exhibit 1, page 45.
[31] Exhibit 1, page 45.
In any event, the evidence of the applicant, which the Tribunal accepts, is that all payments required to be made under the Contract were made within the seven business day period referred to in clause 24B of the Contract.
Specifically, the payment history[32] and bank statements[33] submitted by the applicant in his book of documents, together with his evidence at the hearing, establish that the invoices under the Contract, with one exception, were paid within two business days of the date they were emailed to the applicant. This includes one invoice that the applicant recorded as having been paid in four days, but noting that this was four calendar days and, after taking out the weekend, was in fact paid within two business days.[34]
[32] Exhibit 1, page 30.
[33] Exhibit 1, pages 88 - 90.
[34] Exhibit 1, page 30, being invoice 3731 issued on Thursday 4 May 2023 and paid on Monday 8 May 2023.
The one exception was in respect of the first version of invoice 1766 for the pool walls progress payment.
While the first version of that invoice is not included in the material before the Tribunal, it is clear from the evidence before the Tribunal that:
(a)At 8.18 am on the morning of 10 July 2023, the applicant had emailed the respondent[35] in relation to the discovery that the pool would be built 200 millimetres shorter than contracted; and
(b)At 8.02 pm on the same date, 10 July 2023, Mr Baverstock on behalf of the respondent sent the email[36] to the effect that he had provided a credit based on the reduced quantities as a result of the smaller pool size and attaching a spreadsheet showing a $440 credit for reduced quantities together with the first version of invoice 1766.
[35] Exhibit 1, page 49.
[36] Exhibit 1, page 50.
Following the applicant raising in writing his concerns that the pool was being constructed 200 millimetres shorter than required, the respondent did not:
(a)pursuant to clause 17 of the Contract, assess whether the Works were Non-Conforming Works and follow the process otherwise set out in that clause; or
(b)issue a variation pursuant to clause 7 of the Contract and follow the process otherwise set out in that clause.
Rather, without any agreement by the applicant, the respondent purported to issue an invoice for the pool walls, notwithstanding the unapproved change in size of the pool, and unilaterally apply a credit of $440.
There is no basis in the Contract for the respondent to seek to unilaterally change the Contract sum, without the agreement of the applicant, by reason of the reduced pool size. The clear evidence of the applicant, which is accepted by the Tribunal, is that he never agreed to the respondent's proposed $440 reduction in the Contract price.
By reason of the matters set out above, the Tribunal finds that the first version of invoice 1766 emailed to the applicant on 10 July 2023 was not payable by the applicant until such time as the parties agreed how to address the change in size of the pool, or otherwise resolved the issue by way of one of the available processes in the Contract.
As is clear from the email correspondence set out above, agreement between the parties was ultimately reached on 19 July 2023, when the applicant and Mr Baverstock on behalf of the respondent agreed that the Contract price would be reduced by $1,000 on account of the reduced pool size. The evidence of the applicant, which is accepted by the Tribunal, is that:
(a)on the evening of 19 July 2023, the respondent re-issued invoice 1766 to the applicant so as to include the agreed $1,000 credit[37] in place of the previously proposed, but not agreed, credit of $440; and
(b)the full amount of the revised invoice was paid by the applicant in two separate payments on 19 July 2023.[38]
[37] Exhibit 1, pages 85 - 86.
[38] Exhibit 1, page 90.
As also appears from the above course of events, even if the first version of invoice 1766 was validly issued on the evening of Monday, 10 July 2023, which the Tribunal does not consider to be the case, it was nonetheless paid by the applicant authorising a direct debit from his account seven business days later on Wednesday 19 July 2023.
Even ignoring what appears to the Tribunal to be the patently unfair and unreasonable payment terms set out in the Contract, the Tribunal finds that the respondent was not entitled to terminate the Contract on the basis of those terms.
Having purported to terminate the Contract, the respondent then proceeded to abandon the Works. Despite efforts by the applicant to reach some agreement for the Works to be completed by the respondent, it failed to ever return to the site or otherwise undertake any of the remaining parts of the Works.
By all of its actions, including the circumstances of the purported termination, its response to the original complaint to the Building Commissioner and its failure to engage in the Tribunal proceedings, the respondent has made clear that it would not fulfil any of its remaining obligations under the Contract to complete the Works. The Tribunal finds that the parts of the complaint items relating to HBWC complaints are established by reason of the respondent's fundamental breach of the Contract by purporting to terminate the contract without any proper basis and failing to complete the Works in accordance with the requirements of the Contract.
Consideration - Compensation
Having determined that the respondent breached the terms of the Contract, being a home building work contract, the remaining question for the Tribunal is: what is the appropriate HBWC remedy order?
In Deshmukh and Distinctive Building Services Pty Ltd [2024] WASAT 15, Senior Member Aitken stated at [60]:
In my view, if the Tribunal is satisfied that there is a valid home building work contract between the applicant and the respondent, and that the respondent has breached a relevant term of the contract which can be addressed by way of a HBWC remedy order then the Tribunal is required to make a HBWC remedy order. It then has a discretion regarding the HBWC remedy order it will make under the provisions of s 41(2) of the BSCRA Act.
As the Works have now been completed by the applicant, no order is sought to require the respondent to undertake any further work. Rather, the applicant seeks only orders for the payment of compensation, comprising:
(a)The total out-of-pocket costs incurred by the applicant in completing the Works, being:
(i)The full amount of $16,149.68;[39] or
(ii)In the alternative, the sum of $10,490.18, being the full amount of out-of-pocket costs less the balance that remained to be paid to the respondent under the Contract; and
(b)A further amount of $19,240, representing the income the applicant considers that he lost by reason of the time he dedicated to the completion of the Works.
[39] This was the final amount claimed by the applicant at the hearing, noting that in the original complaint he had referred to an amount of $12,149 (Exhibit 1, page 8) and in a document lodged with the Tribunal on 9 July 2024 he had referred to an amount of $15,275 (Exhibit 1, page 25).
In respect of monetary payments, s 41(2) of the BSCRA Act provides, relevantly, that a HBWC remedy order consists of one or more of the following:
…
(b)an order that a person pay a specified amount payable under the contract;
(c)an order declaring that a specified amount is not payable to a person under the contract and, if already paid, an order that the builder or owner repay that amount;
(d)an order that a person pay specified compensation for loss or damage —
(i)caused by any breach of the contract or of a provision of the Home Building Contracts Act 1991 Part 2; or
(ii)referred to in the Home Building Contracts Act 1991 Schedule 1.
(e)an order declaring that a specified amount of money claimed or money claimed for specified work is not payable by a person.
The applicant's evidence, which is accepted by the Tribunal, is that:
(a)the total amount that that he paid to the respondent was $19,190.50, comprising:[40]
(i)$2,750 (including GST) in respect of the first contract with the respondent for the preparation of documents; and
(ii)$16,440.50 (including GST) in respect of the Contract for the Works;
(b)in the above amounts paid to the respondent, the applicant has not included the sum of $2,000 paid to the respondent in respect of the City of Melville verge bond, as that amount has since been recovered by the applicant directly from the City;
(c)the original price of $23,100 under the Contract was, by agreement, reduced to $22,100 by reason of the agreed $1,000 discount due to the reduction in length of the pool; and
(d)by reason of the above, the balance of the Contract sum that remained payable, in the event the Works were completed by the respondent, was $5,659.50.
[40] While the applicant refers in various documents to a figure of $19,100, the exact amount is $19,190.50 based upon his schedule of payments at page 30 of Exhibit 1 and the bank statements at pages 88 - 90 of Exhibit 1.
As at the date of the hearing, the total of the direct, out-of-pocket costs said to have been incurred by the applicant to complete the Works was $16,149.68.[41]
[41] With a detailed list of all components of this amount set out at Exhibit 1, pages 91 - 92.
More than a third of this amount relates to the supply and installation of tiling to the pool surface, in respect of which the applicant provided to the Tribunal the following relevant invoices:
(a)invoice from Impressive Tile Installation dated 18 December 2023 in the amount of $4,975 (including GST);[42]
(b)invoice from Osborne Ceramic Centre Pty Ltd in the amount of $333.91 (including GST);[43] and
(c)invoice from Imported Ceramics in the amount of $1,004.48 (including GST).[44]
[42] Exhibit 3, page 1.
[43] Exhibit 3, page 5.
[44] Exhibit 3, page 7.
Prior to the Contract being signed by the parties, Mr Baverstock on behalf of the respondent had sent an email dated 18 January 2023 to the applicant[45] setting out the matters included in the originally quoted price for the swimming pool. In respect of the finished surface of the pool, this list made no reference to tiling of the pool and referred only to 'Epoxy, Chlorinated Rubber Pool Coating OR Pool Liner'.
[45] Exhibit 1, page 39.
The applicant's evidence at the hearing was that, during the course of the project, the parties ultimately agreed that, rather than any of the coatings referred to in the above quotation email, the pool would instead be tiled, at no additional cost to the applicant.
This course of events is also supported by the following exchange of emails included in Exhibit 3:
(a)between 30 June and 2 July 2023, a number of emails were sent between the applicant and Mr Baverstock on behalf of the respondent in relation to options for the pool coating;[46]
[46] Exhibit 3, pages 12 - 16.
(b)on 4 July 2023, Mr Baverstock sent an email to the applicant stating, relevantly:[47]
[47] Exhibit 3, page 11.
…
At this stage I am leaning towards tiling all our pools. This has a lot to do with the need to apply a base coat application prior to painting and the reluctance of the paint suppliers to confirm the requirements for etching and priming.
All of our clients are more than happy with this and I am hoping you will be too.
(c)Later on 4 July 2023, the applicant sent an email to the respondent stating, relevantly:[48]
Yes, we'd be more than happy to have the pool tiled.
The only sticking point would be extra costs. I did some calculations on that option a couple of months ago and it didn't look cheap.
Presumably PoolBuild would be saving some dollars if you didn't have to paint the pool, but how does that line up against tiling?
(d)On 5 July 2023, Mr Baverstock emailed the applicant stating, in relation to the tiling option: 'There would be no extra cost to you unless you want tiles outside of our standard range'.[49]
[48] Exhibit 3, pages 10 - 11.
[49] Exhibit 3, page 9.
Following the respondent's purported termination of the Contract, the subsequent correspondence in relation to options for the respondent to still complete some or all of the Works, while not resulting in any agreement, included reference to the respondent supplying the required tiles.[50]
[50] Exhibit 1, page 78 in an email from the respondent to the applicant dated 18 September 2023.
Based on the evidence before it, the Tribunal finds that it was agreed by the parties, prior to the respondent's ultimate abandonment of the Works, that the applicant could elect to have the pool tiled with no change to the Contract price.
Following the respondent abandoning the Works, the applicant obtained a quotation to complete the pool from Reflections Pool & Spa Care dated 7 September 2023.[51] That quote was in the sum of $21,780 (including GST) and encompassed completion of the pool with a vinyl liner interior finish.
[51] Exhibit 4.
Rather than proceed with this quotation, the applicant undertook to complete the Works himself, with the pool surface to be tiled.
The applicant's work to complete the pool was undertaken with assistance from Mr Grant Richardson, the owner and operator of a pool business called Pool Matrix.
In addition to a short witness statement lodged with the Tribunal on 10 September 2024, Mr Richardson gave evidence at the hearing. The evidence of Mr Richardson before the Tribunal is to the following effect:
(a)he has been working in the swimming pool industry for 18 years, the last three as the owner and operator of Pool Matrix;
(b)his experience involves working on the construction of around 500 swimming pools, primarily being in-ground, concrete pools with a vinyl lining interior;
(c)he has worked on a smaller number of fully tiled pools, namely around 10 to 20;
(d)his actual hands-on work in respect of the applicant's pool was limited to installing the pool filtration equipment and pressure testing the plumbing;
(e)in addition to this hands-on work, he also provided some advisory assistance to the applicant on matters such as the usual methods of installation for such a pool, the normal process for plumbing works and design. This was to assist the applicant in his endeavours to complete the Works himself;
(f)the total amount charged by him to the applicant, for both the hands-on work and advisory services, was $825.00;
(g)in relation to the cost of completing the Works, following the abandonment by the respondent, he expressed his opinion to the applicant in late August 2023 that the outstanding works would cost a minimum of approximately $14,000, if a vinyl liner was used, and significantly more if the pool was to be tiled;
(h)the $14,000 estimate was a rough estimate taking into account the works still needing to be completed, including plastering, plumbing, connection of the lights and all other associated works;
(i)however, in terms of the range of costs, his view was that it could quite easily have crept up towards $25,000;
(j)the cost of installing a vinyl liner alone would be around $8,000 to $9,000;
(k)he would expect the complete costs of a swimming pool such as the applicant's, including excavation, shires charges and all other costs, to be in the vicinity of $35,000 if it was vinyl lined and, if fully tiled, to be in excess of $10,000 more than that;
(l)he considers that the applicant completing the Works at a total additional cost of around $15,000 is a good result, and was achieved by the applicant doing much of the labour himself, installing some second-hand equipment and choosing tiles at the lower end of the range for quality and price; and
(m)for that amount, he considers that the applicant has completed a basic, 'no-frills' pool.
The Tribunal found Mr Richardson to be a clear, concise and forthright witness and, based upon the evidence before it, considers that the applicant's ability to complete the Works was assisted by both the hands‑on work and advisory services provided by Mr Richardson at a relatively modest charge.
Based on the evidence before it, the Tribunal is also satisfied and finds that the applicant incurred reasonable out-of-pocket costs in the total amount of $16,149.68 to complete the Works, including tiling the pool, in a manner consistent with that provided for in the Contract, as amended by the parties to allow the applicant to elect to have the pool tiled with no change to the Contract price.
In the event the respondent had completed the Works in accordance with the Contract, the applicant would have been required to pay the outstanding balance of $5,659.50.
In Total Waste Management Pty Ltd v The City of Kalgoorlie-Boulder [2010] WASC 234, Le Miere J stated relevantly at [31]:
The general principle governing the measure of damages for breach of contract is that where a party sustains a loss by reason of such a breach that party is, so far as money can do it, to be placed in the same situation with respect to damages as if the contract had been performed: Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64[.]
To place the applicant in this matter in the same position as if the Contract had been performed, in terms of the total monetary amount expended by him, requires the outstanding balance of the Contract sum, being $5,659.50, to be deducted from the total out-of-pocket costs incurred of $16,149.68. The balance of $10,490.18 represents the additional cost incurred by the applicant as a result of the respondent's breach of the Contract and abandonment of the Works and is properly payable by the respondent.
In addition to the out-of-pocket costs the applicant, in his original complaint to the Building Commissioner and in the course of these proceedings, claimed an additional amount of $19,240, representing compensation for loss of income in respect of the 296 hours recorded having been spent by him in completing the Works, calculated at $65 per hour, being the rate that he would ordinarily charge his clients for his work as a sole trader.
At the final hearing, the applicant accepted it was unlikely that any amount in respect of this claim would be ordered by the Tribunal and it was not pressed. However, as the claim was also not formally withdrawn, the Tribunal declines to make any order in respect of this claim for the following reasons:
(a)the applicant's usual occupation is unrelated to the swimming pool industry and the usual hourly rate charged in his usual occupation is not relevant to his labour in completing the Works;
(b)there was no direct evidence before the Tribunal as to the value of his work in completing the pool, by reference to any evidence as to what that labour would have cost if it had not been undertaken by the applicant;
(c)there is no sufficient evidence for the Tribunal to be satisfied that the applicant has suffered a direct loss of income by reason of his decision to complete the Works himself;
(d)while the Tribunal accepts that the applicant has put in a significant effort to complete the pool, this was an election that he made and it is not reasonable to expect that the respondent should compensate him for that effort, and particularly not at the hourly rate he would charge in his usual occupation; and
(e)while there is limited evidence before the Tribunal as to what the total cost of the completion of the Works might have been if not undertaken largely by the applicant himself:
(i)the evidence of Mr Richardson was to the effect that the outstanding works would cost a minimum of approximately $14,000, if a vinyl liner was used, and significantly more if the pool was to be tiled; and
(ii)the applicant had obtained a quotation for the costs of completing the pool, with a vinyl liner, in the sum of $21,780.[52]
[52] Exhibit 4.
Ultimately, the applicant's decision to complete the Works himself has likely ensured that the pool could be completed in both a manner and at a cost the applicant could be the most comfortable with in the circumstances of the Contract coming to an end. However, while the out-of-pocket expenses incurred by the applicant above the original Contract price, as amended by agreement, is properly payable by the respondent, the Tribunal is not satisfied there is any basis to award any amount for the claimed loss of income.
By reason of the matters set out above, the Tribunal makes the following order.
Orders
The Tribunal orders:
1.By 19 December 2024 the respondent must pay compensation to the applicant in the amount of $10,490.18 pursuant to s 43(1)(a) and s 41(2)(d)(i) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA).
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR M Benter, MEMBER
21 NOVEMBER 2024
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