BONSER and TGSBC PTY LTD

[2015] WASAT 110

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)

CITATION:   BONSER and TGSBC PTY LTD [2015] WASAT 110

MEMBER:   MR C RAYMOND (SENIOR SESSIONAL MEMBER)

HEARD:   DETERMINED ON THE DOCUMENTS

DELIVERED          :   6 OCTOBER 2015

FILE NO/S:   CC 1207 of 2015

BETWEEN:   KAREN BONSER

KEVIN BRUCE BONSER
Applicants

AND

TGSBC PTY LTD
Respondent

Catchwords:

Building Services (Complaint Resolution and Administration) Act 2011 (WA) - Dispute whether practical completion of construction of dwelling achieved - Application by home owner for directions enabling inspection of dwelling - Whether inspection necessary to enable applicant to properly prepare case for hearing

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 11

Result:

Application refused

Summary of Tribunal's decision:

The applicants lodged a complaint with the Building Commissioner pursuant to the Building Services (Complaint Resolution and Administration) Act 2011 (WA) claiming that practical completion had not been achieved in respect of a dwelling being constructed for them by the respondent and that, in consequence, they had suffered delay damages.

Following the Building Commissioner's referral of the matter to the Tribunal, and at the first directions hearing which was convened, the applicants sought directions compelling the respondent to provide access to the dwelling, in order to enable them properly to prepare for the hearing.  The respondent strenuously resisted the making of any such order, as it contended that the applicants had more than enough opportunity to inspect the property and any further inspection was not required.

The parties were afforded an opportunity to file evidence in support of their respective positions.  After considering that evidence, the Tribunal concluded that the applicants had participated in at least two inspections of the property and had commissioned a building consultant to prepare a report.  This report had been worked through by the parties at the last inspection.  In the circumstances, the Tribunal concluded that a further inspection was not necessary and that the applicants had sufficient information on which to prepare their case.  The Tribunal accordingly refused to make orders directing the respondent to give the applicants access to the dwelling and listed the matter for a further directions hearing so that the matter could be programmed to a final hearing.

Category:    B

Representation:

Counsel:

Applicants:     In Person

Respondent:     Mr E Ng (Acting as Agent)

Solicitors:

Applicants:     N/A

Respondent:     N/A

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL: 

Introduction

1. On 22 May 2015, the applicants lodged a complaint with the Building Commissioner under the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act).

2. The applicants entered into a contract with the respondent, TGSBC Pty Ltd trading as Chessington Homes, for the construction of a dwelling at 14 Brentwood Way, The Vines, in the State of Western Australia.  The complaint related to a dispute between the parties as to whether or not practical completion of the dwelling has been achieved and a claim made by the applicants for delay damages in an amount of $29,668.50.

3. The respondent initially alleged that a pre-practical completion inspection had been conducted on 25 July 2013 and that the items identified at that meeting had been subsequently addressed.  However, after the complaint had been made, the Building Commission found that practical completion had not been achieved and issued a home building work contract remedy order on 27 February 2014 requiring the respondent to carry out all works under the contract to bring the building works to practical completion within 21 days thereafter.  The respondent asserts that it has complied with this order.

4. After compliance with this order, the respondent contends that a practical completion inspection took place on 10 April 2014 and that the result was that practical completion was achieved on that date.  This necessarily implies that the applicants had no outstanding issues which were raised at the inspection on 10 April 2014 which would impact on whether or not practical completion had been achieved.  The building contract between the parties contains a typical practical completion clause which defines 'practical completion' to mean 'the stage when the Works are completed except for any omissions or defects which do not prevent the Works from being reasonably capable of being used for its intended purpose'.

5. On 27 July 2015, the Building Commissioner determined that the matter be referred to the Tribunal pursuant to s 11 of the BSCRA Act. The Tribunal convened a directions hearing on 18 August 2015. At this hearing, the applicants requested that directions be made allowing them to carry out a further inspection of the dwelling as they asserted this was necessary to enable them to properly prepare their case and to demonstrate that practical completion has still not been achieved.

6. This request is, on the face of it, reasonable and understandable.  However, the respondent, through its representative, Mr Ng, objected most strongly to any order being made compelling the respondent to give the applicants access to the dwelling.  Mr Ng contended that it was not necessary for any such order to be made because the applicants had had more than enough opportunity to inspect the dwelling.  The applicants disputed this, contending that although a practical completion inspection had been conducted on 27 June 2014, the inspection had been restricted by the respondent's representative to checking against items raised in a report commissioned by the applicants prepared by BSP Construction Consultants (BSP) dated 21 October 2013.

7. Mr Ng contended that it would be manifestly unfair to order that the applicants be granted access for the proposed inspection in circumstances in which it was not necessary.  In fact, he was so concerned that he stated that the respondent would not comply with any order to this effect.  He maintained that position, even when warned about the consequences of failing to comply with an order made by the Tribunal.

8. In the circumstances, the Tribunal made directions requiring the parties to file with the Tribunal and provide to the other party any signed witness statements upon which they wished to rely relevant to whether the applicants were able to carry out a proper practical completion inspection of the works and they duly complied with this order.

The relevant evidence

1. The respondent filed a statement from Mr Rian Ottes in the form of a statutory declaration dated 28 August 2015.  Mr Ottes stated that he carried out practical completion inspections on behalf of Chessington Homes and had done so since 2008.  He referred to a practical completion inspection conducted at 14 Brentwood Way on 25 July 2013 at 9 am, which was attended by both applicants.  As a result of that inspection, he stated that a list of some 28 items requiring attention was prepared.  He stated that he attended to assuring that the items on the list were addressed and that the items were completed between 1 and 6 August 2013.  However, on 14 August 2013, he stated that he was provided by 'the builder' with a list dated 11 August 2013 which he was informed had been prepared by 'the owner'.  The list is attached as Appendix B to Mr Ottes' statutory declaration and is in the form of an email from the applicants to the respondent listing some 11 items.  Mr Ottes stated that he returned to site on 22 August 2013 and attended to the matters raised in the new list.

2. The above email, which is dated 11 August 2013, states, relevantly, '[A]fter practical completion work done, we have inspected the work on 10 August 2013 and found' whereafter the 11 items concerned are listed.  The applicants were able to carry out this inspection because they had been provided with keys to the property to enable them to carry out tiling works which was not included in the contract.

3. Subsequently the applicants had a report prepared by BSP which is dated 21 October 2013.  The report is Appendix C to the statutory declaration of Mr Ottes.  It raised a number of matters which required attention and specifically noted that the property was then not at the practical completion stage because the kitchen appliances and toilet suites were not installed.

4. Mr Ottes states that at the commencement of the inspection on 25 July 2013, he had informed the applicants that the inspection would be carried out without the wall and floor tiles to the wet areas as they, the owners, would be installing the wall and floor tiles after handover.  Further, Mr Ottes states that he advised that the builder would return to install the pans and cisterns, tapware, wall oven and hotplate after completion of the owners' works.

5. Following the issue of the home building work contract remedy order by the Building Commissioner on 27 February 2014, it is obvious that this issue was addressed.  Mr Ottes stated that he returned to the property on 27 June 2014 to attend another practical completion inspection with Mr and Mrs Bonser and their adult son.  It is common cause that during this inspection, the only matters which were inspected were those that had been raised in the BSP report.  Mr Ottes stated that he was particularly conscious of the point made by BSP that practical completion had not been reached because the kitchen appliances and toilet suites were not installed at the time of its inspection.  He stated that he made sure that the owners were aware that the appliances and the toilet pans were installed.  After working through the items raised in the BSP report, Mr Ottes stated that he requested the owners to sign and confirm the completion of the remedial works referred to in the BSP report but they refused to do so.  It is common cause that the applicants requested to carry out a complete inspection of the dwelling and that they were not allowed to do so.

6. The applicants filed three statements, being their own individual statements, and one prepared by their son, Mr Brendan Bonser.  The statements of Ms Karen Bonser and Mr Kevin Bonser are consistent insofar as they both refer to 'the Chessington Homes representative' (obviously Mr Ottes) going through the issues in the BSP report.  Ms Karen Bonser states that when the representative, who she identifies as 'Rian', got to the last page of the BSP report, he then started to move to the front door and said that he needed to make a telephone call.  Rian then returned and closed the dwelling up, bringing the inspection to an end.  According to Mr Kevin Bonser, the applicants had no opportunity to see in all of the rooms 'including the two toilets to see if they flushed!'  While it is common cause that an inspection was not allowed of the whole dwelling, there appears to be an inconsistency in the suggestion that the toilets could not be checked, given that both Ms Karen Bonser and Mr Kevin Bonser state that during the inspection, the Chessington Homes representative had worked through each page of the BSP report, which specifically referred to the toilet suites.

7. In the course of considering the evidence provided by the parties, the Tribunal noted that Appendix B to Mr Ottes' statutory declaration, being the email from the applicants dated 11 August 2013, referred to them having carried out a further inspection on 10 August 2013 (following the inspection on 25 July 2013 when some 28 items had been noted).  In the circumstances, the Tribunal issued further directions on 10 September 2015 providing the parties with an opportunity to file any replying witness statements on which they might wish to rely and, in the case of the applicants, affording them the opportunity to provide written submissions addressing why a further inspection of the dwelling is required, having regard to:

   a)the email dated 11 August 2013 which suggests the applicants had an opportunity to fully inspect after the alleged practical completion inspection on 25 July 2013;

   b)the BSP report dated 21 October 2013 thereafter which listed matters still requiring attention; and

   c)the site meeting on 27 June 2014, during which all items referred to in the BSP report were examined.

8. The respondent has advised the Tribunal in writing that it does not wish to provide any further evidence.  The applicants responded by unsigned letter dated 24 September 2015.  The content of the letter does not attempt to refute that they conducted a further inspection of the property on 10 August 2013.  The thrust of the letter is to submit various reasons why practical completion has not yet been achieved and to emphasise that what is in issue is that they were denied the opportunity to inspect any other matters or to fully inspect the entire house beyond the scope of the BSP report during the inspection on 27 June 2014.

Conclusion

1. It remains open to the applicants to contend that the respondent has not properly complied with any contractual requirements necessary to constitute the holding of a pre-handover inspection and that, in any event, because of the existence of incomplete or faulty work, practical completion has not been achieved.  The real issue for present purposes is whether or not they require a further inspection in order to properly present their case.  Whether or not the inspection on 25 July 2013 had been properly constituted as a practical completion inspection under the contract between the parties, the evidence of Mr Ottes and the defects list prepared show items which were then identified as requiring attention before practical completion might be considered to be achieved.  Mr Ottes contended that he had addressed those items, but in any event, the applicants carried out a subsequent inspection on 10 August 2013 which resulted in them listing 11 items then requiring attention.  Mr Ottes stated that he returned to site on 22 August 2013 and completed the items raised in this new list.  Any contention about what work was outstanding was then removed by the BSP report of 21 October 2013. 

2. It is common cause that at the final inspection on 27 June 2014, the parties worked through the BSP report.  It is open to the applicants to contend that there had been non-compliance with any of the matters raised by the BSP report, but I cannot see that they need any further information in order to advance their case.  They had keys for the dwelling subsequent to July 2013 by arrangement with the respondent because the applicants were to carry out the tiling work prior to the respondent installing toilets, tapware and kitchen appliances.  It was because of this that they were able to carry out the further inspection which they did on 10 August 2013 and, of course, subsequent to that, the BSP report identified various matters in October 2013, which still required attention.

3. In these circumstances, I am not satisfied that the applicants need any further inspection of the dwelling in order to properly present their case.  The applicants' request for orders compelling such an inspection is refused.  The matter will be listed for a further directions so that the matter can be programmed to final hearing.

Orders

1. The Tribunal will accordingly cause orders to issue as follows:

   1.The applicants' request for orders compelling the respondent to provide access to the dwelling is refused.

   2.The matter is listed for a further directions hearing on 20 October 2015 at 10 am.

I certify that this and the preceding [20] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR C RAYMOND, SENIOR SESSIONAL MEMBER