BOYLE and MIDWEST BUILDING (WA) PTY LTD - [2020] WASAT 104

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   BOYLE and MIDWEST BUILDING (WA) PTY LTD [2020] WASAT 104
MEMBER:   MS D QUINLAN, MEMBER
DR B MCGIVERN, MEMBER
MR W GREGORY, SESSIONAL MEMBER

HEARD:   1 AND 2 JULY 2020
DELIVERED          :   3 SEPTEMBER 2020
FILE NO/S:   CC 1669 of 2019
BETWEEN:   LISA BOYLE
First Applicant
DARREN BOYLE
Second Applicant
AND
MIDWEST BUILDING (WA) PTY LTD
Respondent

Catchwords:

Building service complaint - HBWC complaint - Contract terms - Finished floor level amended - Sloping rural residential block - Whether breach of contract - Whether structural retaining required - Revised site plan - Turns on own facts

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5, s 5(1), s 5(2), s 11(1)(d), s 36, s 36(1)(b), s 38, s 41, s 43, s 51(2)
Building Services (Registration) Act 2011 (WA), s 3
Home Building Contracts Act 1991 (WA), s 3, s 4, s 17, s 17(a)(i), s 27(1)

Result:

Application partly successful

Category: B

Representation:

Counsel:

First Applicant	:	In Person
Second Applicant	:	In Person
Respondent	:	A Searle

Solicitors:

First Applicant	:	N/A
Second Applicant	:	N/A
Respondent	:	Searle Construction Lawyers

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

Elvidge Pty Ltd v BGC Construction Pty Ltd [2006] WASCA 264
Gemmill Homes Pty Ltd v Sanders [2018] WASC 179
Vitte and Studio 8 Builders & Designers Pty Ltd [2013] WASAT 43

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 23 October 2019 the Building Commissioner referred a complaint to the Tribunal under s 11(1)(d) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (the Act) as the applicants disputed the proposed remedy order for complaint item 1 and the value of the works identified exceeded the prescribed amount of $100,000.
On 4 September 2018 the parties entered into a 'home building work contract' (contract) as defined in s 3 of the Home Building Contracts Act 1991 (WA) (HBC Act) to build a residential dwelling at 6 Lefroy Street, Gingin (the property) as a home for the applicants, Mr Darren Boyle and Ms Lisa Boyle.
The respondent is a 'registered building service provider' as defined under s 3 of the Act in that the respondent is a 'building service contractor' as defined under s 3 of the Building Services (Registration) Act 2011 (WA) (Registration Act).
The property can be described as rural residential. The property is affected by a significant slope from front to back with another small slope from left to right (when facing from Lefroy Street). The property is approximately 40 metres wide, 331 metres in length on the western boundary and 284 metres in length on the eastern boundary. The residential dwelling is set back 20 metres from Lefroy Street: see the original site plan in the development approval dated 5 November 2018 at tab 35 of Exhibit 2.
The original complaint included 27 items of complaint. However, the only complaint items that remain in issue between the parties and require determination by the Tribunal in these proceedings are complaint items 1, 3, 6, 9, 10 and 16 (the complaint items).
The principal issue in dispute between the parties relates to complaint item 1. The applicants' case, in short, is that the height of the finished floor level (FFL) was raised by the respondent from 8.60 metres in the original site plan to the current height of 9.50 metres without their agreement, and this amounts to a breach of contract on the part of the respondent. As a result, the applicants submitted, they have suffered a loss as they now must erect a higher structural retaining wall around much of their house sand pad. The applicants submitted this significant cost should be borne by the respondent.
The respondent's case, in short, is that raising the FFL to 9.50 metres was necessary and agreed to by the applicants during a meeting at the property in August 2018.

Statutory framework

The complaint items in these proceedings include items that are both a 'building service complaint', as defined under s 3 and s 5(1) of the Act regarding allegations concerning workmanship, and items that are a 'HBWC complaint' as defined under s 3 and s 5(2) of the Act regarding contractual matters.
Section 5(1) and s 5(2) of the Act provide that a person may make a complaint to the Building Commissioner in two ways. Section 5(1) of the Act provides that a person may make a building service complaint alleging that a regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory. Relevant to these proceedings, s 5(2) of the Act provides that an owner who is a party to a home building work contract may make a HBWC complaint alleging breach of contract under s 17 of the HBC Act and seek compensation for such breach.
By applying the principles of statutory construction to the provisions of the HBC Act and the Act, in particular the operation of s 17(a)(i) of the HBC Act and s 5 of the Act, where the Tribunal determines that an item of complaint is a building service complaint rather than a HBWC complaint, the Tribunal should deal with it as a building service complaint in accordance with s 38 of the Act.
Section 38 of the Act relevantly provides, where the Tribunal is satisfied that the regulated building service that is the subject of the building service complaint has not been carried out in a proper and proficient manner or is faulty and unsatisfactory, the Tribunal may deal with the complaint by making a building remedy order (BRO) under s 36 of the Act. Where the Tribunal is not sufficiently satisfied, the Tribunal may decline to make a BRO.
In relation to a HBWC complaint, s 43 of the Act provides relevantly, where the Tribunal is satisfied that an order is justified, it may make a HBWC order under s 41 of the Act, or otherwise decline to make an order.
Where there are grounds upon which the Tribunal could make either a BRO under s 36 of the Act or a HBWC order under s 41 of the Act, the Tribunal has a discretion as to the type of order to make, which will be considered later in these reasons.

The complaint items

The complaint items can be briefly described as follows:
(a)complaint item 1 - the height of the FFL being 9.50 metres instead of 8.60 metres;
(b)complaint item 3 - adequacy and number of downpipes installed;
(c)complaint item 6 - the kitchen canopy;
(d)complaint item 9 - sealant colour;
(e)complaint item 10 - island bench cabinets; and
(f)complaint item 16 - gutters.

Issues arising to be determined

During the course of the hearing, it became apparent there was minimal monetary difference between the parties' respective cases on complaint items 6, 9 and 10. The Tribunal invited each of the parties to consider whether they wished to concede their positions on any of those monetary amounts so that the hearing time could be more efficiently allocated.
The applicants elected to concede and agree to the monetary amount as suggested by the expert witness called by the respondent, Mr Richard Machell, for complaint item 9 ($81) and complaint item 10 ($36). The respondent elected to concede and agree to complaint item 6 as to the additional amount spent by the applicants on a range hood and allow a further credit of $150.
Complaint items 3 and 16 are interrelated. When the building experts gave their concurrent evidence, the expert witness called by the applicants, Mr Andrew Whittle, ultimately agreed with Mr Machell's recommendations regarding those complaint items.
Therefore, at the conclusion of the hearing, the principal complaint item remaining in dispute for the Tribunal to determine was complaint item 1. A number of factual and legal matters arise to be determined by the Tribunal in order to reach a final conclusion in relation to complaint item 1. These sub-issues can be delineated as follows:
(a)What happened at a meeting between the parties in July 2018 (the July 2018 meeting)?
(b)What happened at a meeting between the parties in August 2018 (the August 2018 meeting)?
(c)What constitutes the agreed term of the contract as it relates to the FFL?
In order to determine these three sub-issues, the Tribunal must carefully consider the evidence provided by the witnesses of fact. Where material evidence is in dispute we must make a finding as to which witness we prefer. This necessarily involves findings as to reliability and credibility of witnesses.

The applicants' case

Concerning complaint item 1, the applicants submitted in summary as follows:
(a)The applicants claim the cost of having to put in structural retaining around the sand pad with quotes varying from $119,405 to $125,500: see pages 3840 of Exhibit 3.
(b)The contract was to build to a FFL of 8.60 metres as shown on the original site plan and the applicants never agreed to any other FFL as shown by the fact that there is nothing in writing as required under the HBC Act.
(c)Therefore, the respondent is liable for any flow on costs for a retaining wall due to the higher FFL of 9.50 metres. The respondent was aware that the applicants intended to install a retaining wall and should bear the extra cost due to the higher FFL.
(d)The Tribunal will hear the truth from the applicants as their 'truth is fixed and not made of mould and clay'. The respondent's truth 'twists and turns' as the respondent needed to change its 'story'. Further, the Shire of Gingin has acted to help out its friend, Mr Shane Troy, as did Mr Alan King.
In support of their case, the applicants' provided evidence to the Tribunal as follows:
(a)Bundle of documents: pages 12-91 of Exhibit 1.
(b)Two factual witnesses with witness statements: Mr Boyle and Mrs Boyle: pages 92148 and 149151 of Exhibit 1.
(c)Two summonsed witnesses to provide oral evidence: Mr King, the draftsman who prepared the drawings for the residence and Mr Robert Kelly, Executive Manager, Regulatory and Development Services at the Shire of Gingin. The applicants also summonsed documents from the Shire of Gingin and Mr King: Exhibit 2.
(d)Expert building inspection evidence from Mr Whittle: pages 154-157 of Exhibit 1 and pages 92-126 of Exhibit 3.

The respondent's case

Concerning complaint item 1, the respondent submitted in summary as follows:
(a)the height of the sand pad FFL at 9.50 metres was an agreed, but undocumented, part of the contract between the parties;
(b)retaining walls were expressly excluded from the contract;
(c)further, the height of the sand pad does not constitute faulty or unsatisfactory workmanship (relying on the expert engineering evidence of Mr Reed, in that whilst stabilisation by landscaping will be required at some point, no retaining wall is required); and
(d)the applicants' desire to have a retaining wall is an aesthetic issue for them and not brought about by any structural necessity or contractual obligation.
As to complaint items 3, 9, 10 and 16 the respondent conceded that the work was faulty and unsatisfactory and a BRO was required. However, the respondent submitted, particularly in relation to complaint items 9 and 10, it was prevented by the applicants from undertaking remedial work.
In support of its case, the respondent provided evidence to the Tribunal as follows:
(a)Bundles of documents: pages 160-379 and 380-400 of Exhibit 1.
(b)Two factual witnesses with witness statements: Mr Troy, building service practitioner and nominated supervisor for the respondent and Mr Darryl Ferguson, earth worker: pages 471-497 and 498-504 of Exhibit 1.
(c)The respondent also called Ms Roslyn Bonser, a building surveyor with the Shire of Gingin to give oral evidence: page 400 of Exhibit 1.
(d)Expert building inspection evidence from Mr Machell: pages 403-467 of Exhibit 1.
(e)Expert structural engineering evidence from Mr Reed: pages 468-470 of Exhibit 1.

Expert witnesses

There were three expert witnesses who gave evidence in these proceedings, building inspectors Mr Whittle and Mr Machell, as well as Mr Reed, who is a structural engineer. The Tribunal has considered each of the experts' written reports as well as their concurrent expert oral evidence. The Tribunal finds it is satisfied that all three expert witnesses possess the relevant expertise through their qualifications and experience to express a relevant expert opinion in these proceedings. In relation to the two expert building witnesses, Mr Whittle and Mr Machell, the Tribunal notes that by the end of their oral concurrent evidence there was either common ground or where there was not common ground, then Mr Whittle (properly, in our view) ultimately acquiesced to Mr Machell's opinion and recommendations concerning complaints items 3 and 16.
The applicants' principal argument for complaint item 1 related to an allegation of breach of contract. However, despite submitting that a structural issue arose from the FFL being 9.50 metres (the allegation being that the sand pad was now required to be structurally retained, or more extensively structurally retained), the applicants did not provide any expert evidence from a structural engineer in support of such a submission. The Tribunal is required to give proper consideration to the expert structural engineering evidence of Mr Reed, albeit in circumstances where there is no contrary expert evidence.

Factual witnesses

Relevant to the issues remaining to be determined in these proceedings, in what follows the Tribunal summarises the witness statement and / or oral evidence of the seven factual witnesses and later in these reasons we will make findings as to the reliability and credibility of each of those factual witnesses.

The applicants' witnesses

Mrs Boyle

On 10 July 2018 a local real estate agent (agent) who Mrs Boyle contacted sent details of a few properties for sale. Prior to the applicants' interest to purchase land in Gingin, Mrs Boyle had never been to Gingin.
Upon the applicants' request for the name of a local builder (due to other builders suggesting a $30,000 surcharge for a country build), the agent suggested Mr Troy.
Sometime in July before the applicants made an offer, Mr and Mrs Boyle met Mr Troy at the property. They discussed where to put the house on the property. Mrs Boyle wanted the house 20 metres from the road to be in line with the neighbours. She had been told by many builders that earthworks in Gingin would be around $100,000 or more. Mr Troy took Mr and Mrs Boyle for a drive to the 'doctor's house' that Mr Troy's father was building and said 'that is $100,000 worth of earthworks'. In crossexamination Mrs Boyle was taken to photographs of the 'doctor's house' and she stated she could not identify it from the photographs as she saw the house from the street. Mrs Boyle also stated she was not sure that these photographs were an example of a 'cut and fill' into the hill / slope of the block.
On 19 July 2018 the applicants made an offer to purchase the property. The Tribunal notes that the seller's signature on the offer and acceptance is dated 23 July 2018: page 101 of Exhibit 1.
On 30 July 2018, following a referral by Mr Troy, Mr King supplied them with what she describes as 'preliminary drawings': page 102 of Exhibit 1.
In early August 2018, Mr and Mrs Boyle met Mr Troy at his house one evening to go over the plans they had received from Mr King. The plans were finalised by Mr King and sent to Mrs Boyle on 21 August 2018: page 103 of Exhibit 1.
In cross-examination Mrs Boyle was taken to an email that she sent to Mr Troy on 15 May 2019 which Mrs Boyle did not include in her witness statement. It was suggested to Mrs Boyle that in this email she acknowledges the occurrence of the August 2018 meeting. Mrs Boyle stated that point 9 of the email was being taken out of context as that comment went across a number of time periods and did not relate to the period prior to the build. Point 9 of this email states:
9.With regard to the house being built as high as you built it. I will discuss this also with the [Building] [C]ommission. This issue was discussed prior to you taking on the contract however never agreed to. Then we met you, you explained things as to why you build it so high etc. Then via phone call you advised that no further council costs will be imposed on us, I need to check the legality of this as your word really means nothing now. You also failed as a good builder to adequately advise of additional costs to us … that being a huge retaining wall and council approvals. Yet to this day I have never seen any credit for siteworks. You original contract price would of allowed for the correct build dimensions.
(pages 488-489 of Exhibit 1)
On 4 September 2018, Mr Troy came to their home with the contract which was then signed.
On 5 October 2018 the applicants' finance was approved and settlement occurred on 24 October 2018.
Around the last week of November 2018, Mrs Boyle stated that she met Mr Ferguson for the first time.
On 1 November 2018, Mr Troy submitted the plans to the Shire of Gingin for development approval. On 6 November 2018 the Shire of Gingin provided Mrs Boyle with a copy of her development approval dated 5 November 2018: page 114 of Exhibit 1.
On 7 December 2018, Mr and Mrs Boyle and their two children visited the property. Mr Ferguson was there and she introduced her husband to him.
In early to mid-March 2019, Mrs Boyle saw Mr Troy at the property where she complained to him that they did not have the $20,000 that Mr Ferguson said they would need for a retaining wall. Had they known the applicants would have included such calculations in their budget and bank finance. Mr Troy could see she was upset and offered to prepare a letter from him to the bank to assist obtaining added funds on their mortgage. Mr Troy emailed a blank letterhead to Mrs Boyle and said to call him so he could tell her what to type. She typed this letter and took it to the property for him to sign: pages 122-123 of Exhibit 1.
On 1 April 2019, Mr and Mrs Boyle obtained additional finance of $40,000 for a retaining wall.
During late March / early April 2019 Mrs Boyle started organising quotes for a retaining wall as she could clearly see the house needed one. A friend was initially going to build a retaining wall with bricks for the applicants for $10,000 which he estimated from the original site plan. When the friend later looked at the built house, he said that the job was too big. The quotes for a retaining wall came back with 1 metre high measurements but Mrs Boyle could see the sand pad was much higher. Mrs Boyle enquired with one business where they had obtained those measurements for its quote and was informed the measurements came from the original site plan she had provided. Mrs Boyle then started making enquiries with Mr Troy and others as to the FFL of the residential dwelling.
On 17 April 2019, Mrs Boyle sent an email to Mr Troy expressing her issues with the FFL in that it was not built to the approved plans or the contract with the consequence of a substantially increased cost for a retaining wall: page 126 of Exhibit 1.
On 10 May 2019, Mr and Mrs Boyle went to the property to check on the build and meet with their inspector to obtain a report. Mr Troy was at the property and was asked to discuss the email of 17 April 2019. Mr Troy explained something about why the house was placed where it was due to flood issues.
On 17 May 2019, Mrs Boyle received what she described as Mr King's 'altered site plan' attached to an email from Mr Troy in which he described this attachment as 'Gingin [S]hire updated and approved site plan' (the revised site plan): page 128 of Exhibit 1. The revised site plan included a date and description in the revision section of '12/8/19 F.F.L. height adjusted': pages 31-32 of Mr King's summonsed documents in Exhibit 2.

Subsequently, during May to November 2019, Mrs Boyle made enquiries of Mr King as well as people at the Shire of Gingin (including Ms Bonser) concerning her suspicions regarding the revised site plan: pages 129-148 of Exhibit 1.
On 10 August 2019, Mr and Mrs Boyle received their keys to the property.

Mr Boyle

In July 2018, Mr and Mrs Boyle met with the agent and viewed various properties, including the property at Lefroy Street. Mr Boyle liked the size of the property. Mr Boyle mentioned to the agent how some builders were telling him that earthworks around Gingin, Chittering and Bullsbrook were around $100,000. The agent advised them to contact Mr Troy as he is local to the Gingin area.
Mr and Mrs Boyle met Mr Troy at the property in July 2018. Mr Troy drove them around Gingin showing them houses he had built. Mr Troy said that the house design picked by Mrs Boyle was not suitable for the property and suggested they see Mr King. Mr Boyle was crossexamined as to why he did not refer to the 'doctor's house' in his witness statement. Mr Boyle was initially somewhat evasive in his answers but ultimately agreed that the 'doctor's house' was shown to them by Mr Troy as an example of $100,000 of earthworks where a 'cut' into the hill was undertaken and these earthworks were nothing like the applicants' earthworks which were much cheaper. Mr Boyle conceded that the cost of earthworks at his own property was an important factor as he wanted to pay much less than $100,000 (more like $30,000).
Following Mr Troy's advice, Mr Boyle telephoned Mr King to arrange to meet him to draw up house plans. Sometime before 24 July 2018, he met Mr King who informed him that Mr Boyle would require 'a site survey, geotech report and BAL assessment'. On 24 July 2018, Mr Boyle received an email from Mr King attaching preliminary drawings; page 151 of Exhibit 1. Mr Boyle arranged for the reports to be obtained as suggested by Mr King.
On 7 December 2018, Mr Boyle first met Mr Ferguson when he gave him a bottle of Jack Daniels as a thank you for making the gravel driveway for site access.
Mr Boyle worked away as a fly-in-fly-out (FIFO) worker so Mrs Boyle oversaw most of the communication with the agent and the builder. In re-examination, when asked how much involvement he had in the build of the house, Mr Boyle answered 'little to none'.

Mr King

Mr King was summonsed to attend the hearing by the applicants to give oral evidence.
Mr King has a diploma in architectural drafting. Mr and Mrs Boyle followed the recommendation of Mr Troy at the July 2018 meeting, and engaged Mr King to prepare plans for the property that were submitted to the Shire of Gingin for planning approval and to obtain the building permit: see at tab 35 of Exhibit 2 and pages 181188 of Exhibit 3.
Mr King explained in his evidence that the FFL of 8.60 metres in his original site plan dated July 2018 was a simple desktop exercise based upon a standard 'cut and fill' approach to the earthworks rather than the 'fill' approach to earthworks that was ultimately undertaken.
When questioned by both Mrs Boyle and the Tribunal, Mr King also conceded there were some FFL typographical errors in his floor plan, such as 10 metres in the entry (should be 8.60 metres) and 9.914 metres in the garage (should be 7.74 metres).
Mr King gave evidence that he prepared the revised site plan on the instructions of Mr Troy as the FFL had changed to 9.50 metres from his original site plan of 8.60 metres: pages 32-33 of Mr King's summonsed documents in Exhibit 2.
Mr King explained he attempted to backdate the revised site plan as instructed by Mr Troy (to be 12 August 2018) but made a typographical error in dating it '12 August 2019'. Mr King accepted that the usual approach to dating a revised site plan is the actual date it was prepared. Mr King also ultimately accepted that the revised site plan did not constitute an 'as constructed drawing' though he did give conflicting evidence in this regard.

Ms Bonser

Ms Bonser is a building surveyor (technician) employed by the Shire of Gingin. Ms Bonser gave evidence concerning her involvement in the lodging of the revised site plan with the Shire of Gingin.
Ms Bonser prepared a file note dated 14 November 2019 as follows:
An email was received on 12 November 2019 from Lisa Boyle, the owner of the above[]mentioned address requesting more information pertaining to the building application and approval of the building permit for the dwelling on the property.
I had some questions that I needed clarification and advice on so I left a message for Ian Aitken at Department of Mines, Industry Regulation and Safety who I had previously dealt with regarding this matter.
I primarily want to clarification on the point of my interpretation of when a building permit for amended work is not required.
When I spoke to Ian he gave me the advice that under the Regulations it is up to me and my decision as to whether I deem a building permit is required for amended plans.
I used the exemption under Schedule 4 cl 2 of the Building Regulations 2012 to deem the amended floor level a minor amendment that did not require a building permit.
The amended floor plan that was received and approved to the planning Department on 16 April 2019 was placed on the building file.
(tab 63 of Exhibit 2).
Ms Bonser gave oral evidence that the date stamped 16 April 2019 on the revised site plan was a Shire of Gingin 'planning stamp': see tab 37 of Exhibit 2. The first time that Ms Bonser saw the revised site plan was while she was making her own enquiries and preparing her file note on 14 November 2019. Mrs Boyle asked Ms Bonser when she communicated her view of the revised site plan and Ms Bonser recalled that she informed the builder that he did not need any more paperwork.

Mr Kelly

Mr Kelly was summonsed by the applicants to attend the hearing to give oral evidence. Mr Kelly is the Executive Manager Regulatory and Development Services at the Shire of Gingin.
Mr Kelly corresponded with Mrs Boyle in relation to the concerns that she raised regarding amended planning approval, the FFL and revised site plan. On 27 May 2019 Mr Kelly emailed Mrs Boyle as follows:
I have had the opportunity to review the officers determination in this regard and hold the view that the matter has been correctly dealt with by our Planning unit in approving the variation.
It would appear to me that your builder, the nominated applicant has not communicated to you at the time of variation and the purpose and reasoning for the amendment.
Having said that I have taken the option to seek further advice of the internal processes conducted by the Shire in this instance. That [advice] will determine if there [is] any inconsistency with the original application and the variation made by your builder Mr Shane Troy.
As soon as this advice is received I can conveyed that to you, in the interim should you wish to contact me on … to discuss the matter please do so.
(page 137 of Exhibit 1)
On 5 June 2019 Mr Kelly emailed Mrs Boyle further as follows:
My apologies for not getting a response to you last week and I can advise you of the following determination.
The Shire sought clarification with respect to its handling of this matter and I can reaffirm that the application was dealt with suitably. The below responses are provided on the assumption that you are referring to the amended plan which varied the finish floor level (FFL).
-    Were our signatures not required - we were advised that no they were not.
No. Please note that amended application for development approval was not lodged.
-    We wanted a copy of the application
Please advise which specific documents you are referring to we can provide accordingly.
-    What application was lodged
With reference to the amended plan no application was required.
-    When was the application received
1 November 2018.
-    What documents were required to accept variation
The part site plan lodged was deemed sufficient.
-    If we needed to do anything else to ensure that our house is approved according to council
All approvals are in place from a planning perspective.
-    Why didn't we receive a copy
It appears the builder did not provide you with a copy.
-    Wouldn't a retrospective application have been needed?
No.
In considering this matter our advice has been that the Shire has followed due process and dealt with the respective representative, in this case the builder who advised of the variation. Any other matters that may affect the contractual arrangements of your built residence would be a civil matter between yourself and builder.
(Mrs Boyle's queries have been underlined by the Tribunal)
(page 138 of Exhibit 1).
Mr Kelly was not particularly knowledgeable, nor had any independent recollection, concerning the property. However, Mr Kelly did inform the Tribunal that the residential dwelling as constructed is approved by the Shire of Gingin.

The respondent's witnesses

Mr Troy

Mr Troy is a director of the respondent responsible for the daytoday business of the respondent. Mr Troy is a registered building service provider and the nominated supervisor of the respondent under the provisions of the Registration Act.
In relation to the July 2018 meeting Mr Troy gave oral evidence that:
(a)He met Mr and Mrs Boyle at the property for first time.
(b)They discussed where to locate the house on the block.
(c)Mr and Mrs Boyle were concerned about a suggested $100,000 for earthworks and they could not build in Gingin if it was $100,000. Mr Troy stated that there was 'no way' it would be $100,000 and explained it only would be if you did a 'cut and fill'.
(d)He took Mr and Mrs Boyle on a drive to look at a number of properties to show them the different types of earthworks. He showed them a property just up the road which was a sand pad 'fill' only option and the 'doctor's house' which his father built showing what $100,000 of earthworks looks like: pages 280-283 of Exhibit 1.
(e)Mr Troy stated in evidence that 80% of houses in Gingin sit on a raised sand pad as this is the cheapest option.
(f)He advised Mr and Mrs Boyle that the 'fill' option was around $30,000 in comparison to the 'doctor's house' 'cut and fill' of $100,000.
(g)Mr Troy did not get too technical with Mr and Mrs Boyle at this stage of their discussions as to why he indicated to them a preference for the 'fill' option being used. However, it was his view that the 'fill' option was not only cheaper than 'cut and fill' it was preferred because the stormwater run-off was already extreme on the property. A 'cut and fill' would make the stormwater problem worse effectively causing a swimming pool at the front of their house.
In relation to the August 2018 meeting Mr Troy stated in his evidence that:
(a)He attended a meeting at the property as the respondent was tendering for the construction of a house for Mr and Mrs Boyle. He explained in his oral evidence that he initiated the meeting himself for the purpose of clarifying the proposed earthworks and possible costs.
(b)Mr Ferguson was present as he is the respondent's usual earth worker. Mrs Boyle was at the meeting but he cannot be sure if Mr Boyle was present (the Tribunal notes that he gave inconsistent evidence in this regard).
(c)They reviewed the original site plan that the applicants had prepared using a draftsman he recommended which nominated the sand pad level at 8.60 metres which assumes a 'cut and fill'. Once he got to the property he immediately formed the view that the draughtsman had not properly considered the cost ramifications of a 'cut and fill'. Mr Troy stated in oral evidence that a FFL of 8.60 metres using 'cut and fill' was totally unsuitable for the property.
(d)He observed Mr Ferguson explain to the applicants that a FFL of 8.60 metres was too low due to the slope of the block which could cause flooding and costly subsoil drainage as well as front retaining walls and a steep driveway into the garage. Mr Ferguson also explained that the cost to cut into the hill would be high. Mr Ferguson showed the applicants the position of the 8.60 metres FFL relative to the house position and the block using the pegs. It seemed to Mr Troy that the applicants understood there would be a problem if the house was constructed at the 8.60 metres FFL. To avoid this Mr Ferguson suggested they increase the sand pad height by 900 millimetres. The applicants said to Mr Troy they wanted the cheapest option.
(e)Mr and Mrs Boyle wanted the cheapest earthworks option that would fit the property. Mr Troy discussed the proposed change to the pad height with the applicants and said it would be much cheaper. He advised that if the respondent got the job the sand pad height should be increased 900 millimetres following Mr Ferguson's suggestion. He understood the outcome of this conversation to mean that if the respondent entered into a contract with the applicants it would obtain approval and construct the sand pad height at 9.5 metres FFL. At no time during this meeting, or prior to signing the contract, did the applicants mention to Mr Troy that they intended to install retaining walls to the sand pad rather than simply allowing the sand pad to have natural embankments as shown on the plans.
In relation to the contract the respondent entered into with the applicants and signed on 4 September 2018, Mr Troy stated that:
(a)When signing the contract he forgot to get the original site plan changed to show the 9.50 metres FFL which the applicants had agreed to some weeks before and he also overlooked getting the applicants to sign any of the plans at all.
(b)As the contract was subject to finance he waited until this was approved before submitting the plans to the Shire of Gingin on 21 November 2018: see tab 47 of Exhibit 2. Again, he forgot to amend the sand pad level on the original site plan.
(c)He believes his forgetfulness to put in writing the agreement reached at the August 2018 meeting to increase the FFL to 9.50 metres when signing the contract and submitting the plans for approval was simply an oversight by him in that it was always a term of the contract to construct the house at a FFL of 9.50 metres.
Around 1 December 2018, the earthworks were started at the property. Mrs Boyle, through a series of text messages, was complimentary of the sand pad. Towards the end of the job, he recalls Mrs Boyle discussing with him that they were intending to install a brick retaining wall around the pad. Mrs Boyle told him that the applicants they had a 'brickie' friend who would construct a retaining wall for about $15,000 and Mr Troy stated that sounded too cheap. Around March 2019 Mrs Boyle informed him in a telephone conversation that the 'brickie' friend arrangement had fallen through and it would now cost a lot more. Mrs Boyle asked if Mr Troy could help them apply to the bank to get more funding.
On 29 March 2019 Mr Troy received a text message from Mr Boyle about the sand pad height not being in accordance with the plans and that the applicants had been told by the Shire of Gingin that 'if it's not built to what's on the plan it needs to be re approved': page 484 of Exhibit 1. This text message was strange to Mr Troy given what had occurred to date. He telephoned Mr Boyle who complained to him about the cost of obtaining retrospective approvals because the original site plan was incorrect. Mr Troy agreed that he should obtain the amended approval and that he would pay the cost.
Mr Troy then arranged to get approval for the FFL of 9.50 metres as constructed. Mr Troy explained further in oral evidence that he thought he was doing the right thing by correcting the documents held by the Shire of Gingin. In answer to crossexamination from Mrs Boyle he denied he was trying to concoct a fake story when he instructed Mr King to issue the revised site plan. Mr Troy asked him to backdate the revised site plan to August 2018 as that coincided with when Mr Troy believes the agreement was reached. Mr Troy then submitted that revised site plan to the Shire of Gingin for approval. The Shire of Gingin issued that approval on 16 April 2019: see tab 37 of Exhibit 2.
A few days after he had spoken to Mr Boyle on the telephone he met Mr and Mrs Boyle at the property who again complained about the increased costs for the retaining walls due to the height of the sand pad. After some argument they agreed the sand pad as constructed was correct and as always agreed. Mr Troy thought this was the end of the matter, but on 17 April 2019 Mrs Boyle sent a further email about the height of the sand pad and the parties have been in dispute about the contract ever since.

Mr Ferguson

Mr Ferguson is an earth worker who runs an earthworks business in the Gingin area constructing sand pads, driveways, retaining walls and the like.
In August 2018, Mr Ferguson met Mr Troy at the property in order to discuss proposed earthworks with Mr and Mrs Boyle. Mr Ferguson recalls Mrs Boyle at the meeting but the Tribunal notes Mr Ferguson has also been inconsistent in his evidence as to whether Mr Boyle was present.
Mr Ferguson stated that he explained to the applicants that the FFL in the approved plans was too low due to the slope of the block which could cause flooding and costly subsoil drainage as well as require front retaining walls. This would also mean a steep driveway descent into the garage and cutting into the hill would be expensive. The applicants said they wanted the cheapest option. Mr Ferguson showed the applicants the position of the original FFL relative to the house position and the block using pegs and they appeared to him to understand there would be a problem at the original FFL. Mr Ferguson suggested increasing the sand pad height 900 millimetres to avoid this and the applicants agreed. Mr Ferguson stated he would not have started the earthworks for the house pad if the applicants had not agreed the changed FFL at that meeting.
During the construction of the earthworks, which occurred over a week around late November and early December 2018, the applicants visited the property a number of times and did not raise any issue about the sand pad level not being as they had agreed to or requested.

The Tribunal's findings regarding the factual witnesses

Mr and Mrs Boyle

The Tribunal finds that Mrs Boyle was an honest and forthright witness of fact. Throughout the hearing Mrs Boyle was genuinely quite emotional, no doubt due to the stress of building and being disappointed with the result of what she called her 'dream house', and her sincere belief that Mr King and Shire of Gingin officers had colluded with Mr Troy. Despite this obvious distress being felt by Mrs Boyle, we find that she acquitted herself admirably in these proceedings.
However, in light of the Tribunal's findings in relation to Mr Troy's evidence below, the Tribunal also finds that Mrs Boyle is incorrect in her evidence where she denies the occurrence of the August 2018 meeting where the FFL (perhaps though not using the term 'FFL') was discussed and agreed. We find that point 9 of Mrs Boyle's email of 15 May 2019 acknowledges at the very least that a discussion had occurred and is inconsistent with Mrs Boyle's witness statement and oral evidence. Therefore, as to what occurred at the August 2018 meeting and what was agreed between the parties as to the FFL, we find we cannot rely on the evidence of Mrs Boyle and we prefer the evidence of Mr Troy. Further, whilst we acknowledge the sincerity of Mrs Boyle's belief that collusion has occurred between Mr Troy and officers of the Shire of Gingin, we do not find that any such collusion occurred.
The Tribunal finds that Mr Boyle was also an honest and forthright witness of fact. Throughout the hearing Mr Boyle was sometimes angry in his demeanour, also probably due to the stress of building a home and these proceedings. Despite this anger, we find that Mr Boyle behaved admirably in these proceedings. However, in light of the Tribunal's findings in relation to Mr Troy's evidence below, with one exception, the Tribunal finds that Mr Boyle is mistaken in his evidence where it conflicts with the evidence of Mr Troy. The Tribunal finds it cannot rely on the evidence of Mr Boyle and prefers the evidence of Mr Troy. The one exception is that the Tribunal accepts the evidence of Mr and Mrs Boyle that Mr Boyle was not present at the August 2018 meeting in preference to the vague evidence of Mr Troy in this regard.

Further, it was common ground that Mr Boyle works away on a FIFO roster and he was not as involved in the building project as Mrs Boyle. Consequently, not only was Mr Boyle less involved, his recollection of events was less reliable than Mrs Boyle and Mr Troy. Therefore, in many respects, the evidence of Mr Boyle has limited value to the Tribunal in determining the contentious factual matters. On matters where Mr Troy has not given evidence, Mr Boyle's evidence differs with Mrs Boyle, the Tribunal finds it prefers Mrs Boyle's evidence.

Mr Troy

The Tribunal finds that the approach taken by Mr Troy when he instructed Mr King to backdate the revised site plan is unfortunate. The Tribunal understands why the applicants were concerned about potential collusion between Mr Troy and Mr King as well as collusion between Mr Troy and the officers of the Shire of Gingin. However, ultimately we find that no such collusion occurred.
The Tribunal was impressed with the honest and forthright nature of Mr Troy. He readily admitted the circumstances surrounding the instructions to Mr King regarding the revised site plan. The Tribunal found that Mr Troy's evidence was logical and measured. With two exceptions, to the extent that Mr Troy's evidence differs from any other witness, the Tribunal prefers the evidence of Mr Troy and accepts it in its entirety.
The first exception is the equivocal (and inconsistent) evidence of Mr Troy as to whether Mr Boyle was present at the August 2018 meeting. Mr Troy himself conceded he was now not certain whether Mr Boyle was present at the August 2018 meeting. We accept the unequivocal evidence of Mr and Mrs Boyle that Mr Boyle could not have been present at an August 2018 meeting as we have found they were both honest witnesses and, as a matter of logic, are more likely to accurately remember his presence than Mr Troy.
The second exception is that it was apparent to the Tribunal that Mr Troy sometimes incorrectly recalls some facts, particularly dates. Where Mr Troy differs from the documentary evidence as to the date of when something occurred, we rely on the document as to the correct date. However, (with the exception of Mr Boyle's attendance at the August 2018 meeting) we explicitly accept and rely upon the evidence of Mr Troy as to what occurred at the two meetings at the property in July and August 2018. The Tribunal makes this finding because it finds Mr Troy's evidence to be logical and credible.

Mr King

Mr King was a nervous witness who was sometimes inconsistent and evasive in his answers to questions. The Tribunal was left with the impression that Mr King was concerned regarding the potential consequences of his actions. However, the Tribunal finds that Mr King was ultimately truthful in his evidence, even if it was inconsistent at times. Whilst the Tribunal considers that Mr King's evidence is materially consistent with the evidence of Mr Troy, to the extent that Mr King's evidence differs in any way from the evidence of Mr Troy, the Tribunal prefers the latter.

Shire of Gingin witnesses - Ms Bonser and Mr Kelly

The Tribunal was impressed with the evidence of Ms Bonser. The Tribunal finds Ms Bonser to be a wholly reliable and credible witness. The Tribunal accepts Ms Bonser's evidence in its entirety.
The Tribunal finds that Mr Kelly was an honest witness, however he was not particularly knowledgeable, nor had any independent recollection, concerning the property. Where the documents provided to the Tribunal, including his own correspondence, differs from the oral evidence of Mr Kelly, we prefer to rely upon the documents.
Apart from one exception, the Tribunal finds the oral evidence elicited from Mr Kelly to be of limited assistance to the determination of these proceedings. The one exception is the clear oral and documentary evidence given by Mr Kelly, which the Tribunal accepts and relies upon, that the residential dwelling as constructed at the property is currently approved by the Shire of Gingin.

Mr Ferguson

The Tribunal was not impressed with Mr Ferguson as a witness. Mr Ferguson suffered under routine crossexamination from Mrs Boyle. The Tribunal formed the view that Mr Ferguson was, for inexplicable reasons, untruthful concerning the preparation of his witness statement and why his position had changed as to the presence of Mr Boyle at the August 2018 meeting. Mr Ferguson significantly undermined his overall reliability and credibility as a witness.
With only one exception, the Tribunal finds that it cannot rely solely on any of the evidence from Mr Ferguson. To the extent that the evidence of Mr Ferguson differs with the evidence of any other witness, the Tribunal prefers the other witness over Mr Ferguson.
The one exception to the evidence of Mr Ferguson that the Tribunal finds it can accept, is his evidence as to the reasoning of the need to raise the FFL from 8.60 metres to 9.50 metres. The Tribunal finds it can accept this evidence because it is reasonable, and logical as well as being consistent with the evidence of Mr Troy which it does accept.

Issues arising to be determined

What happened at the July 2018 meeting?

In accordance with the Tribunal's earlier findings concerning the factual witnesses, it finds that it accepts Mr Troy's evidence in its entirety as to what occurred at the July 2018 meeting and where Mr Troy's evidence differs with either Mr or Mrs Boyle, the Tribunal prefers Mr Troy's evidence. In particular, the Tribunal finds that the following materially occurred at the July 2018 meeting:
(a)Mr and Mrs Boyle met Mr Troy at the property for the first time and at that meeting discussed where to locate the house and earthworks.
(b)Mr and Mrs Boyle were concerned about the suggested costs from builders of $100,000 for earthworks and they advised they could not build in Gingin if that was the cost. Mr Troy explained to Mr and Mrs Boyle that the costs would only be $100,000 if a 'cut and fill' was done.
(c)To illustrate the different types of earthworks and their costs, Mr Troy took Mr and Mrs Boyle on a drive to look at a number of properties. He showed them a property just up the road which was a sand pad 'fill' only option and the 'doctor's house' which showed what $100,000 worth of earthworks looks like.
(d)Mr Troy advised Mr and Mrs Boyle that the 'fill' option was around $30,000 in comparison to the 'doctor's house' 'cut and fill' option which would cost around $100,000.

What happened at the August 2018 meeting?

In accordance with the earlier findings concerning the factual witnesses, the Tribunal finds that (apart from Mr Boyle not being present) it accepts Mr Troy's evidence in its entirety as to what occurred at the August 2018 meeting and where Mr Troy's evidence differs with either Mrs Boyle or Mr Ferguson, the Tribunal prefers Mr Troy's evidence. In particular, the Tribunal finds that the following materially occurred at the August 2018 meeting:
(a)The August 2018 occurred as described by Mr Troy, attended by Mr Troy, Mr Ferguson and Mrs Boyle (However, Mr Boyle was not present).
(b)Mr Ferguson and Mr Troy explained why a 'cut and fill' option for earthworks was not only much more expensive but was also not the best option for building on the property for the reasons outlined earlier in these reasons.
(c)If the parties entered into a contract in relation to the property, Mrs Boyle and Mr Troy agreed that a FFL of 9.50 metres was to be constructed and not a FFL of 8.60 metres as stated on the original site plan.

What constitutes the agreed term of the contract as it relates to the FFL?

On 4 September 2018, the parties entered into the contract to build a new double brick home at the property for the contract price of $347,622 (inclusive of GST).
The 'WA HBCA Lump Sum Building Contract' was signed by the parties on 4 September 2018 (LSBC). Clause 1(a) of the LSBC provides that the respondent agrees to undertake the building work described in Item 3 of the Schedule (a 'new double brick home') in accordance with the 'contract documents'. Clause 1(a) of the LSBC defines the 'contract documents' as including this contract, the drawings and specifications inclusive of all attached addenda to specifications, agreed between the parties, and for the purposes of identification, signed by the parties. Clause 1(a) of the LSBC also provides that the contract documents shall constitute the entire contract between the parties: pages 161-189 of Exhibit 1.
The specification was also signed by the parties on 4 September 2018 (specification). The particulars in the specification state that Mr King is the designer. Clause 1 of the specification provides that the drawings take precedence over the specification and the addenda to the specification takes precedence over the specification and the drawings. Clause 7 of the specification provides that retaining walls and fences shall be constructed in accordance with a statutory authority or an engineer's signed detail and as indicated on the drawings and as specified in the addenda to the specification: pages 77-91 of Exhibit 1.
The addenda to the specification was also signed by the parties on 4 September 2018 (addenda). Clause 7 of the addenda provides that retaining walls and fences are expressly excluded from the building work to be undertaken pursuant to the contract.
None of the contract documents attaches signed copies or expressly refers to or identifies the drawings prepared by Mr King dated July 2018 (drawings) which were submitted to the Shire of Gingin for approval: see tab 47 of Exhibit 2. Mr Troy gave evidence, which the Tribunal finds it accepts, that he omitted to co-sign the drawings with Mr and Mrs Boyle on 4 September 2018 and attach those signed drawings to the contract documents. In any event, even if signed drawings were attached to the contract documents, the respondent's case is that the original site plan with a FFL of 8.60 metres does not reflect the intention of the parties.
The Tribunal finds that the FFL of 9.50 metres could not constitute a variation to the contract executed on 4 September 2018 as the agreement to raise the FFL had already occurred at the August 2018 meeting. Therefore, the provisions of clause 12(b) of the LSBC for procedures to be followed by the builder when a variation is required are not relevant.
The Tribunal finds that the objectively determined intention of the parties as to the FFL in the contract entered into on 4 September 2018 derives from the oral agreement reached at the August 2018 meeting between Mr Troy (acting on behalf of the respondent) and Mrs Boyle (also acting on behalf of Mr Boyle) to build a sand pad with a FFL of 9.50 metres. A FFL of 9.50 metres was constructed and ultimately indicated on the Shire of Gingin's approved revised site plan. Mrs Boyle gave evidence that to her own estimation the height of the sand pad was around 2 metres from the ground at the rear of the property. This was a fact that was readily apparent to the naked eye. The applicants only raised any contractual issues concerning the height of the sand pad once they realised the cost of the work they wished to undertake was considerably more than they expected. This conduct suggests remorse on the part of the applicants for the oral agreement the Tribunal has found was reached of a FFL of 9.50 metres at the August 2018 meeting.
Whilst s 4 of the HBC Act provides that a contract must be in writing, the consequence of where it is not is a penalty provision for the builder and a right for the owner to terminate. Section 27(1) of the HBC Act provides that non-compliance with a provision of the HBC Act does not make a contract or a provision of the contract illegal, void or unenforceable: see also Elvidge Pty Ltd v BGC Construction Pty Ltd [2006] WASCA 264 per McLure J at [34]-[36] (Roberts-Smith J and Buss JA agreeing) and Vitte and Studio 8 Builders & Designers Pty Ltd [2013] WASAT 43 at [83]-[90].
Therefore, in answer to the issue as to what constitutes the agreed term of the contract as it relates to the FFL, the Tribunal finds that the objectively determined intention of the parties when entering into the contract on 4 September 2018 was that the contract included the FFL of 9.50 metres as agreed at the August 2018 meeting.

Complaint item 1 – HBWC complaint

In accordance with the Tribunal's reasons and finding above that the FFL of 9.50 metres was an agreed term of the contract, it finds that the applicants have been unable to substantiate their HBWC complaint made under s 5(2) of the Act.
There are various consequences of building a residential dwelling on a rural residential property with a significant slope. The slope would inevitably cause decisions to be required as to what could be achieved on the property. These decisions particularly affect the residential dwelling and the landscaping. These are decisions that affect what can be achieved within the applicants' individual cost profile. We find that none of these issues constitute a liability or responsibility for the respondent under the provisions of the Act.
Therefore, in relation to complaint item 1, the Tribunal declines to make a HBWC order under s 43 of the Act.

Complaint item 1 – building service complaint

The applicants also submitted that the raising of the FFL constitutes faulty and unsatisfactory workmanship as this has substantially increased the costs to them due to the need for structural retaining.
The applicants submitted there were structural reasons for requiring retaining. However, the applicants did not provide any expert evidence from a structural engineer in support of their submission. The respondent provided expert structural engineering evidence from Mr Reed. We found Mr Reed to be a persuasive and compelling witness. Mr Reed was clearly independent in his opinion, as indicated by the concern raised by him (and Mr Machell) regarding the need to take action to prevent erosion of the sand pad over time. Therefore, we find we can rely upon all of his evidence.
The Tribunal considers, apart from the costs saving, that the recommendation from Mr Ferguson and Mr Troy to raise the FFL to 9.50 metres was appropriate and sensible for that property. The Tribunal also accepts and relies upon the expert evidence of Mr Reed that no structural issues arise. The sand pad issue is easily rectified by simple planting and landscaping. Whilst, the applicants can choose to have a form of retaining, it is not required from a structural perspective. The Tribunal cannot find on the evidence presented, and its findings on that evidence, that complaint item 1 constitutes a regulated building service that has not been carried out in a proper and proficient manner, or is faulty or unsatisfactory.
The Tribunal finds that the concern raised by both Mr Machell and Mr Reed regarding future erosion of the sand pad to be a matter of maintenance of the residential dwelling, similar to many other residential dwellings in the Gingin area that are built on raised sand pads. Therefore, the expected future erosion of the sand pad is the maintenance responsibility of the applicants.
It follows that, in relation to complaint item 1, the Tribunal declines to make a BRO pursuant to s 38 of the Act.

Complaint items 3, 6, 9, 10 and 16

As to complaint items 3, 9, 10 and 16 the respondent conceded that the work was faulty and unsatisfactory and a BRO was required.
As noted above, the respondent elected to concede and agree to complaint item 6 as to the additional amount spent by the applicants in purchasing a range hood and to allow a further credit, or refund, amount of $150.

What is the appropriate building remedy order?

A BRO can take different forms. The builder can be ordered to rectify the faulty work (a works BRO) or the applicants can be awarded the cost of rectification and then organise the work themselves or compensation can be paid for the faulty work (a monetary BRO), or even a combination of these orders.
In relation to the complaint items where the applicants have been successful the Tribunal must exercise its discretion to determine the appropriate BRO rather than be directed in any way by the parties. However, of course, the preference of the parties is a relevant consideration: see Gemmill Homes Pty Ltd v Sanders [2018] WASC 179 at [131]-[135].
In closing submissions, the applicants implored the Tribunal to make a monetary BRO rather than a works BRO. The applicants submitted that they have no faith or trust in the builder and do not want Mr Troy to have anything more to do with the property.
In opening submissions, the respondent submitted that a works BRO was appropriate for at least complaint items 9 and 10 and that the estimates by Mr Machell should be preferred to a monetary BRO for complaint items 3 and 16. In closing submissions the respondent submitted that the Tribunal should make a deduction (equivalent to what is commonly known as the 'builders margin') to Mr Machell's amounts for complaint items 3 and 16 to represent the costs to the respondent who has been unreasonably denied the opportunity by the applicants to remedy its work. However, the respondent did not provide any evidence from Mr Troy as to the actual cost to the respondent to undertake the remedial work in order for the Tribunal to consider making a reduction. The Tribunal is not prepared, nor does it consider it appropriate in the circumstances, to make its own adjustment to Mr Machell's estimates.
A works BRO may be beneficial to both parties. Consideration of the Act as a whole elicits a preference for builders to remedy their own defective work and for recipients of 'home building work' as defined in s 3 of the Act to have only one person to whom they must allege a complaint against. Remedial work undertaken by another can complicate the chance of success in future complaints where it is unclear who is responsible.
A works BRO would address the applicants' issue with securing trades to complete small jobs in Gingin. Whilst the applicants raised this issue, the Tribunal notes that they did not produce any evidence in support of an additional levy being added to a monetary BRO. A works BRO would also address the respondent's concern regarding not having been given the (cost benefit) opportunity to undertake its own remedial work.
If a works BRO is not complied with by either the applicants refusing access or the respondent not completing the work in a proper and proficient manner or the time allowed, then the applicants can make an application directly to the Tribunal under s 51(2) of the Act for the works BRO to be converted into a monetary BRO. The reasonableness of the actions of either party during the term of a works BRO would be a relevant consideration as to the final amount of the converted monetary BRO.
The Tribunal has also considered the applicants' strongly held view against a works BRO and the respondent's somewhat equivocal position as to which type of BRO it should make.
The applicants' view that they have lost faith in the respondent is based upon their dispute concerning complaint item 1 where they have ultimately been unsuccessful in these proceedings. Whilst the Tribunal finds it does not share this view, it is nonetheless genuinely held by the applicants. We find the applicants' perspective would affect the effectiveness of a works BRO. It was evident to the Tribunal in observing the applicants throughout the hearing (particularly Mrs Boyle) that they were suffering significant emotional stress concerning the building process as well as from these proceedings. Therefore, if the Tribunal was to impose a works BRO on the applicants against their express submission to the contrary, the Tribunal is left with little doubt that a works BRO would serve to cause further undue stress and disharmony for all parties.
Therefore, in the exercise of its discretion, in order to bring finality to this dispute and between the parties, the Tribunal finds it is appropriate in the circumstances for a monetary BRO to be made pursuant to s 36(1)(b) of the Act.

As to the amount of a monetary BRO, the Tribunal finds that the total amount should be $717.00 (inclusive of GST). Mr Whittle acquiesced to Mr Machell's opinion and recommendation for remedy for complaint items 3 and 16 so we only have Mr Machell's costing estimate to rely upon. For complaint items 3 and 16, Mr Machell's costing was $450 (inclusive of GST): see pages 459-460 of Exhibit 1. Complaint item 6 was conceded by the respondent for a further credit of $150. The applicants agreed to Mr Machell's costing estimate (inclusive of GST) of $81 for complaint item 9 and $36 for complaint item 10: see pages 461-462 of Exhibit 1.

Orders

Accordingly, the Tribunal will order as follows:
1.For complaint item 1, pursuant to s 38(1)(b) and s 43(1)(b) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (the Act), the Tribunal declines to make either a building remedy order or a HBWC remedy order.
2.For complaint items 3, 6, 9, 10 and 16, pursuant to s 36(1)(b) of the Act, within 14 days of the date of this order the respondent is to pay to the applicants the amount of $717.00.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS D QUINLAN, MEMBER
3 SEPTEMBER 2020