BROOKS and GRANSDEN BUILDING COMPANY PTY LTD

[2020] WASAT 151

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

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

CITATION:   BROOKS and GRANSDEN BUILDING COMPANY PTY LTD [2020] WASAT 151

MEMBER:   MS R PETRUCCI, MEMBER

MR R AFFLECK, SENIOR SESSIONAL MEMBER

HEARD:   15, 16 AND 17 SEPTEMBER 2020

DELIVERED          :   4 DECEMBER 2020

FILE NO/S:   CC 1816 of 2019

CC 278 of 2020

BETWEEN:   CRAIG BROOKS

First Applicant

MELISSA BROOKS

Second Applicant

AND

GRANSDEN BUILDING COMPANY PTY LTD

Respondent

Catchwords:

Building Services (Complaint Resolution and Administration Act 2011 (WA) - Regulated building service complaint - Whether building service not carried out in proper and proficient matter or is faulty or unsatisfactory - Turns on own facts

Legislation:

Building Act 2011 (WA), s 3
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(1), s 6(1), s 7(1), s 9(1), s 10, s 11(1), s 11(1)(d), s 36, s 36(1), s 36(1)(b), s 38, s 38(1)
Building Services (Complaint Resolution and Administration) Regulations 2011 (WA), reg 5
Building Services (Registration) Act 2011 (WA), s 3

Result:

Application partly successful

Category:    B

Representation:

Counsel:

First Applicant	:	In Person
Second Applicant	:	In Person
Respondent	:	In Person

Solicitors:

First Applicant	:	N/A
Second Applicant	:	N/A
Respondent	:	N/A

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1. These applications are made under the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act).

2. Dr Craig Brooks and Mrs Melissa Brooks (owners or applicants) are the owners of 73 Mathieson Avenue, Mosman Park (property).

3. On 17 February 2014, the owners entered into a Master Builder Association of WA standard 'Lump Sum Contract for Medium Works (for works without an architect)' (contract)[1] with Gransden Building Company Pty Ltd,[2] (builder or respondent) to build a three storey brick and iron home at the property.

   [1] Exhibits 15 and 38.

   [2] Formerly GATL Developments Pty Ltd.  The change in name occurred on or about 20 July 2016.

4. The builder is a 'registered building service provider' as defined under s 3 of the BSCRA Act in that the builder was at all relevant times a 'building service contractor' as defined under s 3 of the Building Services (Registration) Act 2011 (WA).

5. On 17 May 2019, the owners lodged a complaint, BC2019-400, against the builder with a delegate of the Building Commissioner (Building Commissioner) alleging faulty or unsatisfactory building work comprised of 52 complaint items, numbered from 1 to 52 (first complaint).  On 26 July 2019, the Building Commissioner accepted the first complaint. 

6. On 14 February 2020, the owners lodged another complaint, BC2020­186, against the builder with the Building Commissioner alleging faulty or unsatisfactory building work comprised of 12complaint items, numbered from 53 to 64 (second complaint).  On14 February 2020, the Building Commissioner accepted the secondcomplaint.

7. The following table sets out the complaint items from the first complaint and the second complaint.[3] 

   [3] We have marked the table with a strikethrough on each complaint item withdrawn by the owners during these proceedings.

Complaint item		Location	Description of issue
1.		Pool	Mosaic waterline tiles disbanding and expulsion of efflorescent salts from underlying tile adhesive through the grout joints
2.		Pool	Mosaic tiles poorly laid
3.	Roof above BBQ Area	Flue pipes not adequately sealed to prevent ingress of water
4.	Master Bedroom Ensuite Shower	Ceramic floor not sloping properly to floor waste
5.	Basement kitchenette	Air-conditioning condensate pipe does not connect to drain through tongue dish
6	Scullery	Air-conditioning condensate pipe does not connect to drain through tundish
7.	Hot Water Unit West Side	Condensate pipe not connected and dripping on floor
8	Basement Waste Pump	Several leaks from pump allowing waste water to pool in pump pit in basement
9	Basement Waste Pump	All clamps rusty and not sealing properly
10	Basement Waste Pump	Pump not secured to floor and vibrating loose causing leaks
11	Basement Waste Pump	Discharge pipe uses crimped fitting which has made difficult to seal to rubber connection with clamp
12	Basement Waste Pump	Discharge pipe has insufficient support clips
13.	Ground Floor, First Floor Landing Outside Lift, Master En­suite & Toilet	Grout is partly incorrect colour
14 (same as complaint item 59)	Guest Bedroom	Air-conditioning not working effectively
15.	Pool	Pool temperature sensor connected to pool controller not accurately indicating pool temperature
16	Pool	Ozone generator creates loud noise that reverberates throughout house
17.	Pool	Non-compliant and faulty water top up system installed
18.	Spa	Water level drops rapidly when spa in use
19.	Spa	Spa cannot be heated independently, and spa heating cannot be controlled by controller
20	Pool	Concrete and steel re-inforcement removed from pool cover pit in lap pool
21.	Rear Porch	Chipped edge tile unsupported by Tenex
22.	Rear Yard	Tiles falling off plinth that supports pizza oven and grout cracking and falling out
23.	Rear Yard	Tile at rear of pizza oven is cracked
24.	Master Bedroom	Poor finish on wooden floor nearest kitchenette
25.	Balcony outside master bedroom	Structural steel beam is corroding at the tiling junction
26	Rear pool plinth and lap pool water races	Wrong colour grout used on red plinth – should be dark grey/black
27.	Rear yard	Wall between fire pit and rear steppers has inadequate waterproofing at base of render
28.	Master ensuite	White discoloration appearing in body of tiles on shower floor
29.	Feature stone column at front of house	Discoloration of stone cladding
30.	Pool steppers between spa and lap pool	Defective construction      of steppers, drummy tiles, cavities behind tiles, broken down grout, silicone incorrectly applied in place of grout, corrosion to reinforcement to steppers
31.	Landing on first floor outside lift Vertical tiled surfaces of rear porch Main lounge and alfresco adjacent to pool Front porch Landing and steps outside laundry Pizza oven plinth	Drummy tiles and broken-down grout
32.	Laundry Steps	Not constructed in accordance with structural and architectural drawings, gap has formed between steps and slab, inadequate waterproofing
33.	West Garage Wall	Water ingress
34.	Pizza Oven Wall	Water damage
35.	Undercroft	Water ingress, rising damp
36.	Kitchen and Scullery	Water ingress
37	Master Bedroom Balcony	Large hole in tile on balcony that has been filled with grout
38.	Spa	Lack of sanitized water entering spa when it operates in heat isolation mode
39.	Front Lounge	Gaps in window seal at bottom of window
40	Alfresco BBQ	Installation did not comply with Gas Standards Act 1972 and Regulations which caused fire which destroyed cabinetry, BBQ and damaged ceiling. Remedial works arranged and paid for by owner's insurance.
41	Alfresco BBQ	BBQ interlock system not properly installed, range hood fan defective and fixings for range hood shroud tiled over preventing access for maintenance of gas interlock/range hood control box
42.	Windows between ground floor and alfresco areas	No water-stop installed under aluminium window frames causing moisture ingress and efflorescence to indoor tiled areas
43.	Master bedroom balcony	Deterioration of glass balustrading
44.	Master shower	Gaps in window seal at bottom of window
45.	Pools and Spa	Finish of internal surfaces around areas where in - floor cleaning system parts removed is not to an acceptable standard
46	Pool	Light not working following remedial work
47.	Pool	In-floor cleaning system
48.	Pool	Excess water charges incurred due to water leading from pool
49	n/a	Cost of experts' inspections and reports to advise on defects referred to above
50	Master ensuite and shower, ground floor powder room, basement powder room and cellar	No tempering values fitted to water outlets so excessively hot water coming out of taps/shower
51	Ring Main hot water system (Bosch 32C) on western side of house	Hot water system faults repeatedly since 7/10/17 with error code 90 at which point no hot water is delivered.  Repeated attempts to remedy have failed.
52	Master ensuite	Temperature controller paid not installed as per contract
54	Eastern boundary wall next to lap pool	Since previous pool repairs, all pool return water flows out through 2 of 3 water races at high velocity when water races are turned on and no water returns through pool returns; flow rate is also no longer controllable as it used to be prior to pool repairs
55	Spa	No sanitisation or filtration of spa when spa operating in isolation mode
56	Spa	Spa operation is not properly automated through controller pad that was installed for that purpose and has dedicated spa and pool modes
57	Rear of house	Severe efflorescence occurring out of rear steps
58	Front wall of house, north- western corner	Render delaminating from wall
59 (refer to complaint item 14)	Guest bedroom	Air-conditioning still not working properly despite previous repair attempts and there is an intermittent vibrating noise coming from ducting when air-conditioning is operating
60	Western Boundary wall	Damaged paint/render on boundary wall which occurred during remedial work on laundry steps
61	Rear yard; wall between rear balcony and fire pit	Crack re- appearing in wall after previous unsatisfactory repairs
62	Rear balcony	Staining on tiles on rear balcony resulting from storage of stainless-steel covers of pool cover pit during previous remedial work
63	Bedroom 4, southern wall	Large horizontal crack in wall and delaminating render. This crack is diagonally above steel column C4 that was not installed in front lounge according to plans
64	Bedroom 3, basement foyer, first floor landing	Cracks in walls

1. On 20 November 2019 the Building Commissioner decided, pursuant to s 11(1)(d) of the BSCRA Act, to refer the first complaint to the Tribunal for determination. The reason for the referral was stated asfollows:

   The State Administrative Tribunal is the appropriate forum to consider this complaint as the value of remedial work identified appears to be in excess of $100,000.

2. On 10 December 2019, the Tribunal made its usual orders programming the first complaint (matter CC 1816 of 2019) to a mediation on 17 February 2020.  There was also an order granting leave to the owners to withdraw complaint items 16, 26, 37, 46, 50 and 51.

3. On 18 February 2020 the Building Commissioner decided, pursuant to s 11(1)(d) of the BSCRA Act, to refer the second complaint to the Tribunal for determination, as the associated matter (CC 1816 of 2019) was currently before the Tribunal.

4. On 25 February 2020, the Tribunal made its usual orders programming the second complaint (matter CC 278 of 2020) to a mediation on 5 March 2020.

5. The Tribunal mediation did not resolve the dispute between the parties and both matters were adjourned to further direction hearings on 7 April 2020 and on 14 July 2020.  The Tribunal made its usual orders programming both matters through to a final hearing including an order that the proceedings for both matters (CC 1816 of 2019 and CC 278 of 2020) are to remain as separate proceedings but are to be heard and determined together and the evidence in one proceeding is to be evidence in the other proceeding.

6. The final hearing for both matters (CC 1816 of 2019 and CC 278 of 2020) was set down for three days from 15 September 2020.  Theparties and witnesses attended in person.

7. At the outset of the final hearing the owners sought to withdraw further complaint items from these proceedings, being complaint items 5, 6, 8, 9, 10, 11, 12, 18, 20, 40, 41, 44, 52 and 57.

8. In summary, in these proceedings, the owners are pursuing the following complaint items, as set out in the table above: 1, 2, 3, 4, 7, 13, 14, 15, 17, 19, 21, 22, 23, 24, 25, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 38, 39, 42, 43, 45, 47, 48, 49, 54, 55, 56, 58, 59, 60, 61, 62, 63 and64.

9. Following the final day of hearing, on 17 September 2020, the Tribunal reserved its decision.

Issues for determination

1. The issues for determination by the Tribunal are:

   a)whether the building work carried out by the builder at the property, the subject of the complaint items, is not proper or proficient or is faulty or unsatisfactory; and

   b)if the building work, the subject of the complaint item, was not proper or proficient or faulty or unsatisfactory, what is the scope of the remedial work?

The conduct of the final hearing and evidence before the Tribunal

1. In accordance with the Tribunal's usual practice in matters of this nature, the final hearing was conducted on the basis that all of the documents filed with the Tribunal would be regarded as being in evidence,[4] subject to any objection.  There was no objection to the admission of any of the documents into evidence.  At the hearing, the Tribunal marked the following documents, to which we have had regard for the purpose of our determination in these proceedings, asexhibits:

   [4] Although forming part of 'exhibits', the parties' contentions and submissions in Exhibits 11, 13, 24 and 33 are taken to be submissions, rather than evidence.

   •swimming pool inspection report by Mr Cal Stanley dated 21 January 2020 (Exhibit 1);

   •owners' bundle of photographs (numbered 1 to 50) (Exhibit 2);

   •owners' photograph of swimming pool (taken from hearing book prepared by the Tribunal at pages 406 to 407) (Exhibit 3);

   •letter from Quality Dolphin Pools to Wesley Wark at Yael K Design dated 7 June 2013 (Exhibit 4);

   •IndiBlue pool and spar quote # 179 dated 28 January 2014 (Exhibit 5);

   •various emails between Dr Brooks, Mr George Allingham and Mr Tom Ratajczak for the builder and Mr Jason Lardi of Indiblue Pool and Spa dated 4 March 2014, 17 October 2014, 18 October 2014 and 27 October 2014 (Exhibit 6);

   •Pooltime (WA) Pty Ltd tax invoice INV-6122 for arobotic cleaner dated 2 February 2018 (Exhibit 7);

   •letter from Mr Blake Harper of AIP All In Pools addressed to 'Robert' dated 17 December 2017 (Exhibit 8);

   •letter from Mr Grant Otto, Pooltime (WA) Pty Ltd, dated 7 February 2018 (Exhibit 9);

   •photographs on pages 412 to 413 of CC 278 of 2020 hearing book - photographs provided by the respondent of the swimming pool (Exhibit 10);

   •page 17 of CC 1816 of 2019 hearing book - submission 'Background to Swimming Pool Issues' by Dr Brooks dated mid-September 2019 (Exhibit 11);

   •photographs taken by Dr Brooks on or about 14 September 2019 ­ at pages 18, 22 and 23 of CC 1816 of 2019 hearing book (Exhibit 12);

   •Scott Schedule headed 'Building Complaint as of July 2020' at pages 197 to 220 of hearing book CC 278 of 2020 (Exhibit 13);

   •photographs provided by the builder at pages 578 and 581 of hearing book CC 278 of 2020 (Exhibit 14);

   •lump sum contract for medium works and plans and specifications at pages 172 to 285 of the hearing book CC 1816 of 2019 (Exhibit 15);

   •practical completion and maintenance inspection report dated 6 December 2017 by Mr Danne Forte of Resiservices at pages 332 to 366 of hearing book CC 1816 of 2019 (Exhibit 16);

   •report from Mr Cal Stanley dated 19 February 2019 which appears at pages 321 to 330 of hearing book CC 1816 of 2019 (Exhibit 17);

   •photographs provided by the builder taken in approximately in September 2019 showing spa plinth repairs in pages 490 to 498 of hearing book CC 278 of 2020 (Exhibit 18);

   •email dated 27 October 2014 from the builder to the owners at page 42 of hearing book CC 1816 of 2019 (Exhibit 19);

   •design of an in-floor cleaning system dated 18 October 2014 - marked-up by Dr Brooks in approximately early 2018 at page 45 of hearing book CC 1816 of 2019 (Exhibit 20);

   •photographs of the construction of the lap pool from late 2014 to July 2017 appearing at pages 46-48 of hearing book CC 1816 od 2019 (Exhibit 21);

   •email dated 1 August 2018 from Mr John Gardner to Simone Dowsett regarding the Brooks' residence and variations at pages 597 of hearing book CC 278 of 2020 (Exhibit 22);

   •report from Mr Chris Gooch of Forth Consulting PtyLtd (Forth Consulting) dated 23 February 2019 (Exhibit 23);

   •submissions by Dr Brooks in response to Building Commissioner mid- September 2019 on pages 26 to 27 of hearing book CC 1816 of 2019 (Exhibit 24);

   •report from Mr George Wellstead of All Surface Restorations (ASR) dated 9 April 2019 on pages 390 to411 of hearing book CC 1816 of 2019 (Exhibit 25);

   •photograph showing the laundry steps on page 25 of hearing book CC 1816 of 2019 (Exhibit 26);

   •photographs on pages 28 to 36 of hearing book CC 1816 of 2019 (Exhibit 27);

   •report from Mr Gooch dated 29 January 2020 at pages 548 to 551 of hearing book CC 1816 of 2019 (Exhibit 28);

   •Dr Zurhaar of Zedion Scientific Services report dated 28 January 2020 at pages 130 to 153 of hearing book CC 278 of 2020 (Exhibit 29);

   •report from Mr George Wellstead dated 28 July 2020 at pages 221 to 229 of CC 278 of 2020 (Exhibit 30);

   •email from Ms Marisa Serra to Ms Simone Dowsett dated 1 October 2018 at pages 771 of 772 of hearing book CC 1816 of 2019 (Exhibit 31);

   •report from Mr George Wellstead dated 31 January 2020 at pages 158 to 167 of hearing book CC 278 of 2020 (Exhibit 32);

   •builder's bundle of documents: pages 300 to 611 (excluding pages 305 to 344, and pages 349 to 350) of hearing book CC 278 of 2020 (Exhibit 33);

   •photograph taken on 17 April 2019 by Dr Brooks showing chipped tile on rear porch at page 372 of hearing book CC 1816 of 2019 (Exhibit 34);

   •photographs taken by Dr Brooks on 17 April 2019 at pages 373 to 374 of hearing book CC 1816 of 2019 (Exhibit 35);

   •documents from pages 488 to 511 in hearing book CC 1816 of 2019 concerning the water charges (Exhibit 36);

   •Resiservices report prepared in approximately April 2019 in a spreadsheet format pages 309 to 320 of hearing book CC 1816 of 2019 (Exhibit 37);

   •variation list with print date 16 June 2017 at pages 422 to 431 of hearing book CC 1816 of 2019 (Exhibit 38);

   •email dated 1 July 2019 from Dr Brooks to Mr Woodforde of the builder and email dated 10 June 2019 from Dr Brooks to Mr Woodforde at page 252 of hearing book CC 278 of 2020 (Exhibit 39);

   •Mr Wellstead's report dated 27 July 2020 at pages 230 to 243 of hearing book CC 278 of 2020 (Exhibit 40);

   •building permit dated 24 July 2014 at pages 244 to 246 of hearing book CC 278 of 2020 (Exhibit 41);

   •photograph taken by Dr Brooks in approximately September 2019 on page 39 in hearing book CC 1816 of 2019 (Exhibit 42);

   •Building Commissioner's document at pages 277 to 278 of hearing book CC 278 of 2020 headed 'Weatherproofing of projections through metal roof surfaces' (Exhibit 43); and

   •preface to AS 3740-2010, s 3 Installation, Appendix B, document from NCC 2011 Vol 2 (superseded) at pages 343 to 344, and document from the Building Commission headed 'Residential Wet Area FloorWastes' (Exhibit 44).

1. The owners called Dr Armand Zurhaar of Zedcon Scientific Services, Mr George Wellstead from ASR, Mr Cal Stanley, Mr Grant Otto, Mr Paul Dawson, Mr Danne Forte of Resiservices and finally MrChris Gooch from Forth Consulting to give expert evidence in these proceedings.

2. Dr Zurhaar is a materials scientist and chemist with over 30 years' experience.  Dr Zurhaar attended the property on 23 July 2018 and again on 4 February 2019 to inspect various items at the request of the owners, prior to the owners lodging a complaint with the Building Commissioner.  Dr Zurhaar prepared a written report dated 22 February 2019 in relation to grout, rising damp, bubbling/rusting of tile/PFC joint, waterproofing, discolouration of stone cladding and deterioration of glass balustrading issues.

3. Mr Wellstead gave evidence regarding waterproofing and damp, efflorescence and calcification to rear step, rising damp and the discolouration and drummy tiles.  He attended the property and provided various written reports to the owners on 17 April 2019, 31 January 2020, 27 July 2020 and 28 July 2020.  Mr Wellstead has 35 years of practical building contractual experience.

4. Mr Stanley gave evidence regarding the swimming pool.  Heattended the property first on 18 November 2017 to inspect the swimming pool and then on 15 subsequent visits at the request of the owners.  Mr Stanley has been, amongst other activities, for the past 28years a swimming pool consultant to consumers, builders, architects and designers.  Mr Stanley provided his report, dated 19 February 2019, to the owners.

5. Mr Gooch is an engineer.  He provided evidence about the laundry steps.  Mr Gooch inspected the laundry steps on 22 January 2019 and provided a written report to the owners on 23 February 2019 and an updated report on 29 January 2020.

6. Mr Forte is a registered builder with over 46 years' experience in building and has a Bachelor of Engineering.  Mr Forte inspected the property to provide the owners a visual inspection report on the state and condition of the property as viewed on 6 November 2017 and 4December 2017.

7. Mr Otto is the Operations Manager for Pooltime (WA) Pty Ltd.  Mr Otto gave oral evidence at the final hearing about his review of the operation of the pool equipment at the property in 2018 in preparation to handover the swimming pool to the owners.

8. Mr Dawson is employed by Pool Remedies.  Mr Dawson gave oral evidence at the final hearing about his work on the swimming pool.

9. The builder called Mr Richard Machell of Prescient Consulting to give expert evidence in these proceedings.

10. Mr Machell is a registered builder and has over 40 years' experience in the construction industry.  He attended the property on 29June 2020 and provided his report, dated 17 July 2020, to thebuilder.

11. We considered each of the experts' written reports as well as their expert oral evidence.  We are satisfied that all the expert witnesses possess the relevant expertise through their qualifications and experience to express a relevant expert opinion in these proceedings.  Further, we considered the oral evidence of Mr Otto and Mr Dawson and are satisfied that they possess relevant expertise to express a relevant opinion in these proceedings.

Legal framework

1. A person may make a complaint within certain time limits to the Building Commissioner, including about a regulated building service not being carried out in a proper and proficient manner or being faulty or unsatisfactory (s 5(1) and s 6(1) of the BSCRA Act).

2. A complaint made under s 5(1) of the BSCRA Act is defined as a 'building service complaint' (s 3 of the BSCRA Act). A 'regulated building service' is defined in s 3 of the BSCRA Act to be a building service carried out by a registered building service provider. 'Buildingservice' relevantly includes 'building work' as defined in s 3 of the Building Act 2011 (WA) being the construction, erection, assembly or placement of a building or an incidental structure (being a structure attached to or incident to a building).

3. Regulation 5 of the Building Services (Complaint Resolution and Administration) Regulations 2011 (WA) imposes the limitation that only a person whose interests are being or have been adversely affected by the carrying out of a regulated building service may make a building service complaint.

4. Having accepted a regulated building service complaint (s 7(1) of the BSCRA Act), the Building Commissioner is required to cause an investigation to be carried out and, after having regard to any report given under s 10 of the BSCRA Act, may refer the complaint to the Tribunal for it to deal with under s 38 of the BSCRA Act (s 3, s 9(1) and s 11(1) of the BSCRA Act).

5. Section 38 of the BSCRA 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.

Consideration of the complaint items by the Tribunal

1. We now turn to consider each of the complaint items in numerical order.

Complaint items 1 and 2 pool ­ mosaic waterline tiles disbanding and expulsion of efflorescent salts from underlying tile adhesive through the grout joints and mosaic tiles poorly laid

1. The owners complain that there is efflorescence on the mosaic tiles on the waterline of the swimming pool and the mosaic tiles are falling off.

2. Dr Zurhaar's evidence is that there is visible minor mosaic tile disbondment and extensive expulsion of efflorescent salts from the underlying tile adhesive through the grout joint.  Dr Zurhaar stated that he analysed a sample of the grout in his laboratory to find it to be a silica-filled epoxy and that the mosaic tiles were installed using a cement based adhesive.  In his report, Dr Zurhaar concluded that the composition of the white deposits was calcium oxides and silicates consistent with efflorescence deposits derived from cement based materials leached out via the grout joints.[5]

   [5] Exhibit 29.

3. It is Dr Zurhaar's evidence that had the expoxy grouted joints been completely and thoroughly filled then leaching of efflorescence salts would not have been possible.

4. Mr Stanley's evidence is that the mosaic tiles had started to fall off and that on close inspection of those tiles there is an almost total absence of tile adhesive on the tiles.  Mr Stanley said this was symptomatic of poor workmanship whereby adhesive was allowed to 'skin' before laying or a failure to tap the tiles adequately into the adhesive.  Mr Stanley said he believed the grout on the mosaics to be an epoxy grout.

5. Mr Stanley's evidence is that the mosaic tiles falling off is an 'application issue' rather than an 'adhesive issue' and explained:[6] 

   [N]ow, my experience with glass mosaic tiles is that when they're not stuck on with epoxy tile adhesive they can warm up in the sun, and then water splashes on them and they microscopically change size and they lose bond. 

   [6] ts 54 to 55, 15 September 2020.

6. In response to the owners' complaint before the Building Commissioner, the builder denied complaint item 1 stating it was a false claim by the owners because Infinity Pools had inspected the pool and concluded that the salt is from the external environment and not from the tile substrate or adhesive.  Further, the builder's evidence is that efflorescence on mosaic tiles on the waterline of the swimming pool is normal salt deposits that are removed as part of regular pool cleaning processes and that surface salt is normal on the pool waterline tiles and is easily removed. 

7. The builder did not call anyone from Infinity Pools to give evidence at hearing and therefore was not able to be cross­examined.  However, at hearing, the builder conceded that there is a 'little bit [of] asmall problem' and stated that the builder has always been prepared to fix [the problem] but has been deferred, delayed and stopped by the actions and interference by the owners.  Further, the builder explained:[7]

   [I] have no problem saying that the 10, 20 or one square metre of mosaic tiling needs to be attended to, needs to be fixed and we have the trades.

   [7] ts 59 to 60, 15 September 2020.

8. The owners strongly disputed that they did not allow the builder access to the property or did not want remedial work to be completed by the builder.

9. Where the evidence of Dr Zurhaar and Mr Stanley differs, we prefer the evidence of Dr Zurhaar as he analysed a sample of the grout in his laboratory.  Mr Stanley did not undertake such an analysis.

10. The parties agreed that the drummy tiles of the pool surround require remedial work.

11. We find that the mosaic waterline tiles disbanding and the expulsion of efflorescent salts from the underlying tile adhesive through the grout joints is not proper or proficient or is faulty or unsatisfactory and is to be remedied.

12. The parties' experts agreed that the scope of work required to remedy complaint items 1 and 2, being the drummy tiles of the pool surround is as follows:

    •identify all the drummy tiles;

    •remove the drummy tiles, remove the adhesive from the pool shell, relay the tiles and then grout the tiles with a suitable epoxy grout; and

    •make good any damage caused by the remedial work.

Complaint item 3 ­ roof above BBQ area ­ flue pipes not adequately sealed to prevent ingress of water

1. The owners complain that the flue pipes were not adequately sealed to prevent water ingress.

2. Mr Forte in his report stated that the flue pipes arrangement will allow water penetration once the silicone has gone.  Mr Forte recommended that proper arrangements be made including Dektite flashing collars or similar.[8]  

   [8] Exhibit 16.

3. In response, the builder said there is no evidence of water ingress or any deterioration.  Further, the builder disputed Mr Forte's finding that the flashing does not comply with Industry Bulletin 36 which provides:

   It appears common practice when installing projections through roofs to rely totally on silicone sealant to provide weatherproofing on the high side of roof flue penetrations (exhaust fans) through metal roof sheeting, installed between the underside of the flashing and the upper surface of the roof sheeting.

4. Further, the builder stated that the metal flashing installed over the roof above the BBQ was shaped so that the metal fingers project down into the corrugations in a manner that allows water to be dispersed and not trapped.  Silicone was used around the projections to provide a better seal.

5. Mr Machell reported that on his inspection he was not able to see any evidence of water ponding on the surface of the roof sheeting at the high side junction with the flashing, and the flashing appeared to allow the roof to freely drain around the roof penetration.  Further, MrMachell reported that there was no evidence of moisture ingress on the ceiling below the roof penetrations.

6. There is no evidence before the Tribunal that the silicone 'hasgone'. We find Mr Forte's statement concerns what may happen in the future if the silicone is 'gone'. That does not, in our view, make the building works concerning the sealing of flue pipes not to have been carried out in a proper and proficient manner or was faulty or unsatisfactory. Because of this, we decline, pursuant to s 38(1) of the BSCRA Act, to make a BRO in respect of complaint item 3.

Complaint item 4 ­ master bedroom ensuite shower – ceramic floor not sloping properly to floor waste

1. The owners complain the shower floor in the master bedroom ensuite does not slope properly to the floor waste.  Further, the owners say that the Nanotech treatment did not alter the fall of the shower floor to the floor waste.  In addition, the owners say the ceramic floor is not sloping adequately.  The owners explained that Mr Forte inspected the master bedroom ensuite shower area before the Nanotech treatment was applied by the builder's tile supplier, European Ceramics.

2. Mr Forte's report is dated 6 December 2017.  In his report MrForte stated that the ceramic floor between the vanity and the spa are not slopping to the floor waste and must be sealed.[9]  

   [9] Ibid.

3. Mr Wellstead's report is dated 31 January 2020.  It is MrWellstead's evidence that he used a spirit level to determine the fall ratio of the master bedroom ensuite shower floor.  He reported the fall ratio to be 1:120 which he concluded was 40% below the Australian Standard AS 3740 which requires the fall ratio to be 1:80.[10]

   [10] Exhibit 32.

4. The builder's position is that none of the reports presented by the owners explain whether the fall has been tested or measured against Australian standards.  Further, the builder stated that the owners modified the surface of the porcelain tiles with a grinding media and thereby changed the surface tension and performance of the porcelain.  Also the builder says the owners authorised the application of the Nanotech treatment without consulting the builder.

5. Mr Machell reported that the fall of the floor in the shower is relatively shallow.  It is Mr Machell's evidence that he assessed the shower floor by pouring water on the surface of the shower floor from the shower head and then allowed it to drain for 15 minutes.  MrMachell said that after 15 minutes he found the shower floor to have drained all water from the surface except for that retained by surface tension and water otherwise freely drained toward the channel drain.  Mr Machell concluded that the floor of the shower was installed with a fall sufficient to prevent surface water due to surface tension, and does not permit water to discharge outside of the shower, except to the extent that the shower is not fully enclosed by perimeter seals to the doors.

6. We prefer the evidence of Mr Wellstead as he used a spirit level to determine the fall ratio of the shower floor.  Consequently, we find the shower floor in the master bedroom ensuite is not sloping properly to the floor waste and is therefore not proper or proficient or is faulty or unsatisfactory and is to be remedied. 

7. The parties' experts did not agree on the scope of work to remedy this complaint item.  In our view, the scope of work required to remedy the defective fall of the master bedroom ensuite shower floor is:

   •remove all tiles to the floor and walls of the shower recess;

   •adjust the drain to suit – if required;

   •make good the waterproofing;

   •if matching tiles cannot be sourced, then supply suitable coloured and patterned tiles to complement the existing tiles;

   •relay the floor tiles to the correct fall;

   •relay the wall tiles to match; and

   •make good any damage caused by the remedial work.

Complaint item 7 ­ hot water unit west side – condensate pipe not connected and dripping on floor

1. The owners complain that the builder has not installed the hot water unit on the west side of the house in a compliant manner.  Theowners say the builder's suggested fix is unsightly and not in keeping with the rest of the house where services are run internally even if they terminate externally.

2. Mr Forte reported that the condensate pipe is not connected and dripping on the floor.  Further, Mr Forte reported the condensate pipe must be fitted inside the wall and allowed to flow into some drain or flower bed.[11]

   [11] Exhibit 16.

3. The builder says it sent to the owners a proposed remedy, which it says complies with the Technical Note February 2013, dated 11 May 2019, issued by the Plumbers Licensing Board.  The builder explained that like all hot water heaters, the condensate outlet is external and there is no obligation in the contract documents or under building legislation to run the outlet back into the building, especially when it must begin and finish external to the building.

4. However, at hearing, the builder conceded that the appropriate remedy for this complaint item is to provide a drain to the gravel 'pit' and to provide a cover shroud to the condensate pipe. 

5. We find the condensate pipe was not connected and was dripping on the floor and is therefore not proper or proficient or is faulty or unsatisfactory and is to be remedied.

6. The parties' experts agreed the scope of work required to remedy this complaint item is:

   •provide and install a suitable drain to a gravel sump;

   •provide and install an appropriate cover shroud to the condensate pipe; and

   •make good any damage caused by the remedial work.

Complaint item 13 ­ ground floor, first floor landing outside lift, master ensuite and toilet ­ grout is partly incorrect colour

1. The owners complain that the builder did only a very small sample area where the colour did not match the specified colour of the grout and was patchy in appearance.

2. Dr Zurhaar reported that the contract documents specified the use of black grout, specifically Morgan's Sicily product.  It is Dr Zurhaar's evidence that there are various locations of grey grout which is not the specified product as evidenced by photographs provided in his report.  Dr Zurhaar concluded that the grout product selected was different to that specified in the contract documents.[12]

   [12] Exhibit 29.

3. The builder conceded at hearing that the grout used is not the specified black grout and therefore this complaint item is to beremedied.

4. We find the difference in grout colours used on the ground floor, first floor landing outside the lift and the master bedroom ensuite and toilet is not proper or proficient or is faulty or unsatisfactory and is to be remedied. 

5. The parties' experts did not agree on the scope of work to remedy this complaint item.  In our view, the scope of work required to remedy this complaint item is:

   •rake out all grout;

   •re-grout with compliant grout of consistent colour (Morgan's Sicily product);

   •seal the grout as required; and

   •make good any damage caused by the remedial work.

Complaint item 14 ­ guest bedroom ­ air-conditioning not working effectively

1. The owners complain that the air-conditioning in the guest bedroom is defective.

2. Originally, the builder stated the complaint was remedied in June 2019.  However, at hearing, the builder conceded that the air­conditioning is defective and requires remedial work.

3. We find the air-conditioning to the guest bedroom is not proper or proficient or is faulty or unsatisfactory and is to be remedied. 

4. The parties' experts did not agree on the scope of work to remedy this complaint item.  In our view, the scope of work required to remedy this complaint item is:

   •adjust the air-conditioning system to ensure proper air flow is delivered and the air conditioner functions as intended; and

   •make good any damage caused by the remedial work.

Complaint item 15 ­ pool – temperature sensor connected to the pool controller not accurately indicating pool temperature

1. The owners referred the Tribunal to Mr Stanley's report where he stated that the sensor connected to the pool controller is not indicating correctly and that the supplier stated that the installation problem is not difficult to fix.[13]  The owners stated that the temperature sensor has not worked since they moved into the property.[14]

   [13] Exhibit 1.

   [14] ts 65, 15 September 2020.

2. The builder stated that it was happy to have AustralPools make sure the technology is working correctly.

3. We find that the temperature sensor connected to the pool controller is not accurately indicating the pool temperature and is therefore not proper or proficient or is faulty or unsatisfactory and is to be remedied.

4. The parties' experts agreed that the scope of work required to remedy complaint item 15 is:

   •adjust the temperature sensor so that it functions properly, otherwise the temperature sensor is to be replaced and ensure it is properly adjusted and functions as intended; and

   •make good any damage caused by the remedial work.

Complaint item 17 ­ pool ­ non-compliant and faulty water top up system installed

1. The owners say that a 'water witch' system was not installed as provided for in the contract documents.  Rather, a 'top hat style' water top-up mechanism was installed.

2. Mr Stanley's evidence is that the existing water levelling system does not comply with the requirements of, nor has it been approved for use in the pool by the Water Corporation.[15]  Mr Stanley conceded that if a RPZ valve is installed then the unit installed would be compliant as the RPZ valve takes the place of an air gap.[16]

   [15] Exhibit 1.

   [16] ts 78, 15 September 2020.

3. The builder's position is that the water levelling unit supplied is functional and used throughout the pool industry and is compliant.  In other words, the builder's evidence is that while it is a different system, it is not defective.[17]  Further, the builder stated the difference in cost between a 'water witch' and the unit installed is substantial and it formed part of the $24,000 reduction in the contract price.  In addition, the builder stated that Mr Otto of Pooltime (WA) Pty Ltd, who is supposedly the pool maintenance person for the owners, told the builder that it was not possible to change systems at this time but did not provide any reasons for this conclusion other than to say that the pool has to have provisions that may or may not be there.[18]

   [17] ts 75, 15 September 2020.

   [18] ts 74, 15 September 2020.

4. We find that the water system installed at the property is not the water system as provided for in the contract documents.  Further, we find that the water top up system installed is not proper or proficient or is faulty or unsatisfactory and is to be remedied. 

5. The parties' experts did not agree on the scope of work to remedy this complaint item.  In our opinion, the scope of work required to remedy complaint item 17 is:

   •remove the existing water top up device;

   •supply and install a water witch system as specified by the manufacturer; and

   •make good any damage caused by the remedial work.

Complaint item 19 ­ spa ­ cannot be heated independently, and spa heating cannot be controlled by controller

1. The owners submit that it is reasonable to expect that the spa can be heated independently from the main pool when the pool and spa cost in excess of $200,000.

2. The owners referred to Mr Otto's letter of 7 February 2018 wherein he stated in part:[19]

   [I]n my opinion the swimming pool equipment operation was substandard and that any operation would be materially different to what would be anticipated or expected[.]

   [19] Exhibit 9.

3. Mr Stanley's evidence is that the absence of a skimmer box in the spa is creating the majority of the problems.  Further, Mr Stanley said the only way the spa is getting filtered is through a pool filter and cold water is coming back through one of the returns from the filter which make it physically impossible to heat up the spa.[20]

   [20] ts 81, 15 September 2020.

4. In response to the Building Commissioner, the builder denied that the pool specification required the spa to be able to be heated independently and for the spa heating to be controlled by a controller.  This is because, according to the builder, an independent heating unit was not documented in the specification and therefore the owners are seeking something that was never specified in the contract documents.

5. In our view, the pool and spa have an inherent design defect in that the pool and the spa were designed for interconnected overflow with heating and filtration discretely selected for each of the pools and/or spa.  Further, we are of the view that the removal of the sub-floor cleaning system has made the proposed operation of a top-up filtration and chlorine dosing ineffective and unable to be made to work as intended without a new design.  Consequently, in our opinion, a new design is required to detail how each of the pools and the spa is to operate and, in particular, how the pool and the spa are to be connected and what equipment is required for each of the pools and the spa.  It is for these reasons that the Tribunal finds that the defects in operation of the pool and the spa are not defects for which the builder is responsible. 

6. We therefore decline, pursuant to s 38(1) of the BSCRA Act, to make a BRO with respect to complaint item 19, and also in relation to complaint items 38, 47, 55, and 56 (see below).

Complaint item 21 ­ rear porch – chipped edge tile unsupported by Tenax

1. The owners complain that the builder has done nothing about the chipped edge tile on the rear porch.

2. The builder conceded at hearing that this complaint item has not been remedied.

3. At hearing the parties agreed that the owners will supply the matching tile and that Tenax is not to be used.

4. We find the chipped edge tile on the rear porch is not proper or proficient or is faulty or unsatisfactory and is to be remedied. 

5. The parties' experts did not agree on the scope of work to remedy this complaint item.  In our view, the scope of work required to remedy this complaint item is:

   •remove the chipped tile;

   •replace the chipped tile with a matching tie provided by the owners;

   •install a filler product, not Tenax, to be selected by the owners; and

   •make good any damage caused by the remedial work.

Complaint item 22 ­ rear yard ­ tiles falling off plinth that supports pizza oven and grout cracking and falling out

Complaint item 23 ­ rear yard ­ tile at rear of pizza oven is cracked

1. At the request of the owners, we have dealt with complaint items 22 and 23 together.

2. The owners complain that the builder attempted a remedy by replacing some tiles but that did not work and the tiles have become delaminated again.  The owners say there are other tiles which were not replaced that are drummy and other tiles that have had the grout replaced with black silicone and the grout has fallen out in other areas and they have not been remedied.  The owners referred the Tribunal to photographs taken on 20 July 2020 (pages 41 to 46 of Exhibit 2).

3. Dr Zurhaar in his report stated that he had examined the failed tiles by removing them.  Dr Zurhaar opined that an excessively thick bed of cementitious tile adhesive was used to place the skirting tiles around the pizza plinth with the consequence of a loss of adhesion to the substrate when shrinkage occurred with the excessively thick adhesive bed.[21]

   [21] Exhibit 29.

4. At hearing Dr Zurhaar reviewed the photographs at pages 41 to 46 of Exhibit 2 and stated that he could not say whether the tiles were still drummy.  However, in regards to the photograph on page 45 of Exhibit 2, Dr Zurhaar said the tile with cracks that extends under the pizza oven had not been changed.  Further, Dr Zurhaar said the photograph on page 46 of Exhibit 2 shows aged and brittle grout which does not look like a fresh repair, rather they appear to be the original work.

5. At hearing, the builder conceded that the tiles need attention and if they are drummy they will be remedied and where there is grout missing it will be replaced.

6. We find the cracked tiles to pizza oven plinth and the cracked tile at the rear of the pizza oven are not proper or proficient or is faulty or unsatisfactory and is to be remedied. 

7. The parties' experts agreed that the scope of work required to remedy this complaint item is:

   •identify and remove all drummy tiles;

   •remove adhesive from the plinth;

   •relay and re-grout the tiles; and

   •make good any damage caused by the remedial work.

Complaint item 24 ­ master bedroom ­ poor finish on wooden floor nearest kitchenette

1. The owners' position is that at no stage have any harsh chemicals been used on the floor after practical completion.  The owners say the affected area is relatively small and was not obvious at practical completion and has discoloured more since then.  The owners referred the Tribunal to the report from Mr Forte and photographs.[22]  The owners complain that the sealant on the surface of the floor is discontinuous which has become more obvious over time due to collection of dirt.[23]

   [22] Exhibit 16.

   [23] ts 276, 16 September 2020.

2. The builder stated that it believes someone has spilt something on the floor after practical completion but despite several inspections at practical completion, which was back in August 2017, this issue was never raised.  The builder opined that the damage was likely due to wear and tear rather than any faulty workmanship.

3. We find the finish on the wooden floor nearest the kitchenette of the master bedroom is not proper or proficient or is faulty or unsatisfactory and is to be remedied.  The parties' experts did not agree the scope of work to remedy this complaint.  In our view, the scope of work required to remedy this complaint item is:

   •sand the floor surface to remove the marks;

   •apply a surface treatment to match; and

   •make good any damage caused by the remedial work.

Complaint item 25 ­ balcony outside master bedroom – structural steel beam is corroding at the tiling junction

1. The owners' position is that the builder has done nothing to rectify this complaint item even though it was brought to the builder's attention in the initial inspection report that the builder has had since approximately February 2018.

2. It is Dr Zurhaar's evidence that he inspected the structural steel beam which extends the length of the balcony outside the master bedroom and in his view it is corroding at the tiling junction which was finished with a bead of flexible mastic.  Dr Zurhaar stated that the coating finish to the steel beam is inadequate and the base steel is rusting.  Dr Zurhaar opined that this is a common defect on balconies where steel members integrate with tiling and inadequate protection is applied to the steel before the tiling is installed.[24]  

   [24] Exhibit 29.

3. Mr Machell stated that this complaint item has been rectified apart from the top surface of the beam that remains to be painted to match the remainder of the beam.[25]

   [25] Exhibit 17.

4. The builder stated it was attending to this complaint item.  It conceded at hearing that remedial work was required.

5. We find the structural steel beam that is corroding at the tiling junction on the balcony outside the master bedroom is not proper or proficient or is faulty or unsatisfactory and is to be remedied. 

6. The parties' experts did not agree on the scope of work to remedy this complaint item.  In our view, the scope of work required to remedy this complaint item is:

   •sanding back the affected surface;

   •treating the steel beam with a suitable galvanised surface primer;

   •treating with surface coating to match; and

   •make good any damage caused by the remedial work.

Complaint item 27 ­ rear yard ­ wall between fire pit and rear steppers has inadequate waterproofing at base of render

1. The owners' position is that there is no concrete edging and there never has been.  Further, the owners say that reticulation was installed prior to the completion of the house and that there is no sign of damage to the waterproofing.

2. Dr Zurhaar opined that there is discontinuity between the waterproofing of the planter bed and the cement render/texture coat finish to the masonry wall.  In Dr Zurhaar's view, the waterproof membrane should have extended up behind the render coat to well above the soil line creating a seal that will not allow the planter water to migrate into the wall and degrade the render/texture coat finish.[26]  

   [26] Exhibit 29.

3. The builder stated this complaint item was attended to in early 2019.  The builder conceded at hearing that further remedial work was required.

4. We find the wall between the fire pit and rear steppers has inadequate waterproofing at base of render and is therefore not proper or proficient or is faulty or unsatisfactory and is to be remedied. 

5. The parties' experts did not agree the scope of work to remedy this complaint item.  In our view, the scope of work required to remedy the lack of waterproof render is by:

   •fully exposing the areas lacking render;

   •rendering with a waterproof render;

   •applying surface finish to match; and

   •make good any damage caused by the remedial work.

Complaint item 28 ­ master ensuite ­ white discoloration appearing in body of tiles on shower floor

1. The owners' position is that this defect existed and was inspected and documented before the Nanotech treatment was applied.  The owners refute that they engaged European Ceramics to apply the Nanotech treatment.

2. Dr Zurhaar opined in his report that there is a clean line across several tiles delineating a stained area which is not a function of shower use, soaps or cleaning, but rather a tile surface defect.  It is Dr Zurhaar's evidence that the discoloration is likely to have resulted from a waxy or oily film residue on the tiles that is embedded in the tile surface and which has turned white after becoming emulsified with water and soap.  Dr Zurhaar said the stain appears to be permanent and described it as a latent defect.[27]

   [27] Ibid.

3. The builder stated this complaint item needs to be further discussed with European Ceramics.

4. Mr Machell opined:[28]

   [W]here the tiles were installed in the first instance and did not have a white staining on the surface but where the staining occurred as a result of owner usage and cleaning function, then that is insufficient to substantiate that the tiles are a latent defect and where the whiteness that currently exists is minor and where it has not been established that it may not have been cleaned by an appropriate method, notwithstanding that the owners has changed the surface of the tile by grinding.

   [28] Exhibit 33.

5. At hearing, the owners agreed that any remedial work for this complaint item would be limited to re-tiling the floor and walls of the shower enclosure only.

6. We note the issue concerning the Nanotech treatment was detailed in complaint item above at [54].

7. We prefer the evidence of Dr Zurhaar to that of Mr Machell.  This is because, while Mr Machell acknowledged 'white bloom type staining' was slightly visible on the surface of the dark brown tiles when viewed closely, he was not able to explain what the white bloom type staining was from.

8. Consequently, we find the white discoloration appearing in the body of the tiles on the shower floor in the master ensuite is not proper or proficient or is faulty or unsatisfactory and is to be remedied. 

9. The parties' experts did not agree the scope of work to remedy this complaint item.  In our view, the scope of work required to remedy this complaint item is:

   •remove all tiles to the floor and walls of the shower enclosure;

   •make good the water proofing;

   •if matching tiles are not able to be sourced, supply suitably coloured and patterned tiles to complement the existing tiles;

   •relay the floor tiles to the correct fall;

   •relay wall tiles to match; and

   •make good any damage caused by the remedial work.

Complaint item 29 ­ feature stone column at front of house – discoloration of stone cladding

1. The owners' position is that the builder attempted to remedy this complaint item without their knowledge or consent while they were not home.  The owners say the remedy applied has drastically changed the colour of the stone column which they do not like.  Further, the owners say that a much larger column at the rear of the house does not have the same problems.

2. Dr Zurhaar opined that the appearance of the stone is consistent with a degraded sealer and that the whitening is not salt deposits of efflorescence but is instead deeply entrained in the stone and is polymeric or silanic in nature.  Dr Zurhaar noted that the discolouration issue is at its worst on the sun exposed sides of the column.  Dr Zurhaar concluded that, in his opinion, the current state of the finish is unacceptable.

3. Dr Zurhaar noted that the stone is used on the column at the back of the house, however the same unacceptable appearance is not present there.  Dr Zurhaar stated that it is unclear if both stone columns were treated in the same manner, however due to the vastly different finish, Dr Zurhaar is of the view that they were not.[29]

   [29] Ibid.

4. The builder stated the stone was laid according to Australian Standards but to the design brief of the owners that 'no grout in the joints and no capping or flashings'.  The builder said it used Lithofin FVE enhancer sealer and that because the stone is porous it will need to be resealed every two years to prevent cosmetic salt efflorescence.

5. At hearing, Dr Zurhaar opined that Lithofin FVE was applied but it has not worked.  Dr Zurhaar referred the Tribunal to the photograph at page 40 of Exhibit 2 (taken on 18 July 2020) of the feature stone column at the front of the house to show that the appearance had improved, but was still entirely unsatisfactory because the white staining is efflorescence that is trapped either in between the original sealer and the Lithofin FVE or under the Lithofin FVE, but in any event was permanent and could not be removed.  Dr Zurhaar stated that leaves the question as to whether the appearance of the column is satisfactory.[30]

   [30] ts 334 – 335, 17 September 2020.

6. Mr Machell opined:[31]

   [T]he white bloom effect that may be found on the surface is as a result of natural variations in the surface of the stone and exacerbated by the reflectivity of the stone, and as to efflorescence and accruing naturally as a result of moisture ingress into the stone tiles. 

   [31] Exhibit 33.

7. Further, Mr Machell stated:[32]

   [W]here natural materials such as stone is formed into thin tiles, it is susceptible to leaching of minerals within the stone and were subjected to moisture, in an external situation.  An expectation that the stone should be uniform in colour and reflectivity where texture variations in the stone occur, and resisting all of the effects of the weather, is in my opinion, an unreasonable expectation.

   [32] Ibid.

8. Mr Machell concluded:[33]

   [I]n respect to the difference in colour between the pier at the front of the house, and stone cladding installed at the rear left side of the house, some colour difference is visible when considered from a particular angle at the front of the house, however may be remedied in the normal course of owner maintenance in reapplying a suitable sealer on the surface of the stone claddings at periodic intervals recommended by the manufacturer.

   [33] Ibid.

9. We find the discoloration of the stone cladding to the feature stone column at the front of the house is not proper or proficient or is faulty or unsatisfactory and is to be remedied. 

10. The parties' experts did not agree on the scope of work to remedy this complaint item.  In our view, the scope of work required to remedy this complaint item is:

    •remove the coating to the stone;

    •remove any remaining cementitious adhesive and grout;

    •supply new stone as required;

    •relay the stone with an appropriate epoxy-based adhesive; and

    •make good any damage caused by the remedial work.

Complaint item 30 ­ pool steppers between spa and the lap pool

1. The owners complain that the steppers (runners or stepping stones) have defective construction, there are drummy tiles, there are cavities behind the tiles, there is broken down grout, silicone was incorrectly applied in place of grout and there is corrosion to the reinforcement of the steppers.  However, the owners accept that some remedial work has been done by the builder, but functionality has not been tested as water is still leaking out of pipes within the plinth when the pool pump is running.  The owners say that as a result, the lap pool is still empty.

2. Mr Stanley's evidence is that about 25% of the tiles are drummy.  Mr Stanley was not able to say if there is an Australian Standard regarding tiles and in particular if 25% of the tile are drummy, whether that would make them a defect.[34]

   [34] ts 319, September 2020.

1. The builder's position to the Building Commissioner was that the remedial works were commenced in May 2019 and have been completed and that thousands of dollars have been spent on the remedial works where the tiler has taken the tops off all the tiles and inspected the sides.  The builder said that the general test of drummy tiles is whether the tiles are stable and are suitable.  The builder stated that even if there is some drumminess in the tiles, that does not prove that there is a defect.  The builder did not present any evidence to support the position that 25% of drumminess on the tiles is acceptable and not a defect.

2. We find the pool steppers between the spa and the lap pool are not proper or proficient or are faulty or unsatisfactory and are to be remedied.

3. The parties' experts agreed that the scope of work required to remedy complaint item 30 is as follows:

   •the drummy tiles are to be identified and then removed including any remaining adhesive following which tiles are to be laid and a suitable grout used; and

   •make good any damage caused by the remedial work.

Complaint item 31 ­ landing on first floor outside lift, vertical tiled surfaces of rear porch, main lounge and alfresco adjacent to pool, front porch landing and steps outside laundry, pizza oven plinth ­ drummy tiles and broken down grout

1. The owners' position is that despite repeated requests, the builder has made no attempt to undertake the rectification work.

2. In his report of 31 January 2020, Mr Wellstead reported drummy tiles at the main entrance and joint deterioration and loss of grout to entrance tiles.[35]  Similarly, Mr Forte reported grout missing.

   [35] Ibid.

3. Mr Machell stated that he assessed the tile surface of the concrete slab outside of the lift at the first floor and found one tile to be drummy over approximately 25% of the surface of the tile, indicating a lack of contact between the tile and the substrate concrete.  Mr Machell concluded:[36]

   [W]hilst the contact area of the single floor tile outside of the lift is slightly less than that recommended by AS 3958.1, in my opinion, and where the tile is securely fixed, shows no consequent movement or delamination, and is limited in both area and extent, the installation should be considered acceptable.

   [36] Ibid.

4. The builder's position is that all tiling issues have, and continue to be addressed, apart from where the owners have stopped them from proceeding (for example, the laundry steps as set out in complaint item 32).

5. We find drummy tiles and broken down grout is not proper or proficient or is faulty or unsatisfactory and is to be remedied. 

6. The parties' experts did not agree on the scope of work to remedy this complaint item.  In our view, the scope of work required to remedy this complaint item is:

   •identify all drummy tiles;

   •remove drummy tiles and remove remaining adhesive;

   •relay tiles and grout tiles with a suitable grout; and

   •make good any damage caused by the remedial work.

Complaint item 32 ­ laundry steps ­ not constructed in accordance with structural and architectural drawings, gap has formed between steps and slab, inadequate waterproofing

1. The owners' position is that despite repeated requests, the builder has made no attempt to undertake the rectification work.

2. Mr Gooch in his report of 23 February 2019 stated that the laundry steps were not constructed in accordance with the structural and architectural drawings in that:[37]

   a)section S7 on S0402 structural drawings shows a continuous slap pour, top and bottom reinforcement extending into the steps, a horizontal base to the steps, and a 172 downturn on the slab edge;

   b)architectural drawing 10 of 32, with detail D6 shows the same geometry shown on the structural drawings; and

   c)the steps have been poured separately to the main floor slab.

   [37] Exhibit 23.

3. The builder conceded the construction of the laundry steps is defective and remedial work is required.

4. We find that the construction of the laundry steps is not proper or proficient or is faulty or unsatisfactory and is to be remedied.

5. The parties' experts agreed that the scope of work required to remedy the laundry steps is:

   •remove the existing steps in their entirety;

   •install microfine injection to support the steps;

   •reconstruct the steps as per the report of Forth Consulting of 23 February 2019, including the provision of a waterproofing details (to be provided by Forth Consulting); and

   •make good any damage caused by the remedial work.

Complaint item 33 ­ west garage wall ­ water ingress

1. The owners' position is that the builder did some remedial work on the western wall in the garage and brought it to a reasonable standard.  However, as a result of the remedial work, the builder cut a hole in the ceiling in the garage that has been patched but not painted.

2. The builder conceded that the patched hole in the ceiling requires painting. 

3. We find that the patched hole in the west garage wall that requires painting is not proper or proficient or is faulty or unsatisfactory and is to be remedied.

4. The parties' experts agreed that the scope of work required to remedy this complaint items is to paint the patched hole in the ceiling which remained after previous remedial work.

Complaint item 34 ­ pizza oven wall ­ water damage

1. The owners' position is that the builder simply repaired the render and repainted but did not waterproof the area and the problem has recurred.  The owners seek payment of $2,970 for a reverse tanking treatment and $715 for repainting.

2. Mr Wellstead in his report of 9 April 2019 stated that bubbling is evident to the inner walls of the pizza oven and the moisture levels as tested with a Protimeter moisture metre were found to be high.  The cause of these defects, according to Mr Wellstead was because of insufficient below ground waterproofing as moisture can rise from both sides of the wall.  Mr Wellstead concluded that the concrete and stone pavers will prevent access to the below ground portion of brick wall that requires waterproofing and therefore the solution is to reverse tank including rendering and painting with a Damp injection to prevent moisture from rising.  Mr Wellstead stated that there could be no guarantee that the moisture problem would be solved by re-parging the retaining wall section.[38] 

   [38] ts 396, 17 September 2020.

3. Mr Wellstead stated that he visited the property on 14 September 2020 and found, using the moisture metre, moisture which is likely to be coming from behind the wall is worse than it was in April 2019.[39]  Mr Wellstead said the cause for the moisture is because of the amount of moisture coming through the structure and because the structure is facing north and no heat is coming down to cause the witting of the moisture.[40]

   [39] ts 392-393, 17 September 2020.

   [40] ts 395, 17 September 2020.

4. Dr Zurhaar opined that water coming from the bottom up or from the back through the wall is an unnecessary defect.[41]  Further, Dr Zurhaar explained:[42]

   [I]f the wall behind is properly parged and waterproofed then [the moisture] won't get through and if the footings of the base of the wall are properly waterproofed [the moisture] won't go up the wall. 

   [41] ts 396, 17 September 2020.

   [42] ts 396, 17 September 2020.

5. Originally, the builder refuted the owners' position and stated that there is no defect with the pizza oven wall as evidenced in the photographs.[43]   However, at hearing the builder accepted there is a defect with the pizza oven wall that requires remedial work.

   [43] Exhibit 33.

6. We find that the water damage to the pizza oven wall is not proper or proficient or is faulty or unsatisfactory and is to be remedied. 

7. The parties' experts did not agree the scope of work to remedy this complaint.  In our opinion, the scope of work to remedy this complaint item is:

   •remove all cracked and/or flaky plaster;

   •waterproof the wall with suitable paint on waterproof treatment;

   •re-plaster all affected areas;

   •paint to make good; and

   •make good any damage caused by the remedial work.

Complaint item 35 ­ undercroft ­ water ingress, rising damp

1. The owners' position is that the builder has not attended to this complaint.  The owners say when they moved into the home on 7 October 2017 there was mould growing on the walls in the basement.

2. Dr Zurhaar reported visible moisture migration at the base of the retaining walls in the basement.[44]  

   [44] Exhibit 29.

3. Mr Wellstead reported high moisture readings.[45]

   [45] Exhibit 40.

4. The builder's evidence is that this complaint is being attended to and that the moisture readings taken on 31 May 2020 show a decrease over the past 13 months.  The builder conceded at hearing that areas of the walls that have water ingress or rising damp require rectification.

5. We find that the water ingress and rising damp to those areas of the walls where water ingress and/or rising damp is present is not proper or proficient or is faulty or unsatisfactory and is to be remedied.

6. The parties' experts agreed that the scope of work required to remedy the water ingress and rising damp to those areas of the walls where water ingress and/or rising damp is present is:

   •inject suitable damp proofing product;

   •remedy any areas of damage surface;

   •paint to make good; and

   •make good any damage caused by the remedial work.

Complaint item 36 ­ kitchen and scullery ­ water ingress

1. The owners' position is that that the problem of water ingress is isolated to a limited area in the kitchen/scullery.  The owners says the wooden skirting board is warping and pulling away from the wall in the same area as evidenced in the photographs.[46] 

   [46] Exhibit 2 at pages 35 to 36.

2. The owners explained that the way the screen was installed on the kitchen window prevents drainage of water from the window frame and sill.

3. It is Mr Machell's evidence that the screen installed on the outside face of the window was installed so that it would not permit the self­draining sill of the louver window to drain water.  Mr Machell concluded that the installation of the external screen that is without capacity by weep vents or space, to permit water to drain from the sill of the window that it covers, represents faulty work.[47]

   [47] ts 406, 16 September 2020.

4. At hearing, the builder agreed that the screen was faulty and is to be remedied.[48] 

   [48] Ibid.

5. We find that the water ingress into the limited area in the kitchen/scullery is not proficient or is faulty or unsatisfactory and is to be remedied.

6. The parties' experts agreed that the scope of work required to remedy the water ingress is:

   •adjust the screen as recommended by the manufacturer;

   •make good the area of the wall with efflorescence;

   •make good any damage caused by the remedial work.

Complaint item 38 ­ spa ­ lack of sanitized water entering spa when it operates in heat isolation mode

1. The owners stated that it is a reasonable and a fundamental expectation that a spa should receive sanitised water especially when considering the temperature at which the spa operates. 

2. Mr Dawson's evidence is that he did some repairs to the spa after finding leaking pipes within the spa.  He said the spa as it is currently set up cannot be sanitised when it operating in isolation mode.  Further, Mr Dawson stated:[49]

   [T]he only way that the spa receives any chlorinated water is purely when the main filtration is operational and the sectional valve is open in order for the bypass to cut through into the spa jets, which then cascades over into the lap pool.  When the spa is isolated completely, there is no means of sanitation[.]

   [49] ts 204, 16 September 2020.

3. The builder in response submitted that the specification and design documentation is clear in that there is no Chemigem units documented for the spa.

4. We decline, pursuant to s 38(1) of the BSCRA Act, to make a BRO for this complaint item for the reasons set out earlier at [88].

Complaint item 39 ­ front lounge ­ gaps in window seal at bottom of window

1. The owners' position is that despite the builder saying they will remedy the gaps in the window seal at the bottom of the window in the front lounge, it has not been done.

2. At hearing the builder stated that if there still gaps, the gaps need to be sealed.[50]

   [50] ts 289, 16 September 2020.

3. We find that the gaps in the window seal at the bottom of the window in the front lounge are faulty or unsatisfactory and are to be remedied.

4. The parties' experts agreed that this complaint is to be remedied by sealing the gaps at the bottom of the window.

Complaint item 42 ­ windows between ground floor and alfresco areas ­ no water-stop installed under aluminium window frames causing moisture ingress and efflorescence to indoor tiles areas

1. The owners complained there is moisture ingress and efflorescence to the indoor tiles area.  The owners referred the Tribunal to photographs[51].

   [51] ts 405, 17 September 2020 and Exhibit 42.

2. Dr Zurhaar referred to the photograph on page 14 of his report[52] to show that the grout is efflorescing on the tiles inside the lounge room radiating from the window to a small area into the room and then beyond that there is no efflorescence.  Dr Zurhaar stated that the presence of efflorescence inside the lounge room on the grout joints is clear evidence that no water-stop measures were installed.  The issue of water migrating from outside to the inside is the problem.  Further, Dr Zurhaar opined:[53]

   [T]here's quite clearly a progression of water from the outside to the inside under that window frame.  The photo with the continuation of the grout line seems to suggest that the tiles have been installed and the window has been installed on top of the tiles.  I don't know.  I haven't pulled that window apart.  My comment is simply you should not get efflorescence in your lounge room in internal tiling that radiates from the external window.  Water is getting from outside to inside through that window through the sill section[.]

   Had there been – had the water – had there been waterproofing outside upturned it would have stopped because it's a lounge room and my comment is simply we have water migration from outside to inside, presumably, through the window and it shouldn't happen, and at the moment the Brooks have got to deal with the fact that their – their tiles in their lounge room are efflorescing when that is a completely abnormal situation.

   [52] Exhibit 29.

   [53] ts 398 to 399, 17 September 2020.

3. In response to questions from the builder, Dr Zurhaar explained:[54]

   [O]f course [the moisture readings] were high.  That's why we've put efflorescence [as the problem] and – and because it only extends a short distance in from the window the whole thing is very characteristic of what has happened.  There's no way you're going to get efflorescence without migration in moisture.  Efflorescence, by its nature, is a dissolution of salts from some materials that re-crystallise.  If you don't have moisture you don't have efflorescence and that is why in the middle of the lounge room you don't have efflorescence.

   …

   [A] silicone joint is not designed to be a water stop because silicone … contracts and moves with differential movement over time.  So silicone is not actually a method of water stopping.  It's a method of sealing the edge of the tile to the aluminium.  But it is not designed to be a primary water stop.

   [54] ts 401 to 404, 17 September 2020.

4. The builder's position is that the windows were installed correctly before the tiling was installed and therefore there is no evidence of a construction deficit.  Further, it is the builder's evidence that inspections, as recently as 13 August 2020, show no efflorescence and it must therefore be a cleaning issue when the floor is washed where the excess water is not removed in hard to reach places such as those against the window frames and the cabinet plinths.

5. We find, as evidenced by the photographs in Exhibit 42, that the presence of efflorescence inside the lounge room on the grout joints shows water-stop measures were not installed.  In our view, the presence of efflorescence to the indoor tiled area nearest the window is faulty or unsatisfactory and is to be remedied. 

6. The parties' experts did not agree on the scope of work to remedy this complaint.  In our view the scope of work required to remedy the lack of the water-stop to the outside of the windows is:

   •take up the tiles in the affected area;

   •place waterproofing membrane;

   •relay the tiles to match; and

   •make good any damage caused by the remedial work.

Complaint item 43 ­ master bedroom balcony ­ deterioration of glass balustrading

1. Dr Zurhaar explained that a sample of the degraded interlayer was subjected to laboratory analysis using Fourier Transform Infrared Spectrometry techniques.  Dr Zurhaar stated the interlayer is polyvinyl butyral and that this polymer generally has outstanding UV resistance properties but upon exposure to thermal and wet/dry cycling can cause weathering and oxidation emittlement.  Dr Zurhaar concluded that this lack of tolerance when exposed to direct weather is one reason why single pane toughened glass is preferred for exterior balustrading[55]. 

   [55] Exhibit 29.

2. The builder's position is that Dr Zurhaar's opinion that 'the use of laminated glass was not the most appropriate material choice' does not signify a defect.  The builder says that toughened glass was not specified in the contract documents and that laminate is both more appropriate because it stays in place even when broken and meets Australian Standards.  Further, it is the builder's evidence that there is nothing defective about the interlayer and the installation was certified by Monarch as meeting Australian Standard AS 1288-2006. 

3. In the contract documents, General Condition 16.3 provides that the owners are to approve the frameless glass balustrade.  The owners' evidence is that they were not consulted by the builder or by the architect or designer.[56]  The builder did not present any evidence that either the owners or the architect or designer gave instructions and approval to the builder for the frameless glass balustrade.[57]

   [56] ts 415, 17 September 2020.

   [57] ts 425, 17 September 2020.

4. We find that the deterioration, by discolouration of the layer between the glass sheets of the balustrading is faulty or unsatisfactory and is to be remedied. 

5. The parties' experts did not agree on a scope of work to remedy this complaint item.  In our view, the scope of work required to remedy the faulty or unsatisfactory works is:

   •remove the existing balustrading;

   •replace the balustrading with a suitable product to the owners' approval (as per the contract documents), and as specified by the manufacturer; and

   •make good any damage caused by the remedial work.

Complaint item 45 ­ pools and spa ­ finish of internal surfaces around areas where in­floor cleaning system parts removed is not to an acceptable standard

1. The owners stated that this complaint is still outstanding and has not been rectified.  The owners dispute that Mr Stanley organised and supervised the filling of the holes in the pool where the in­floor cleaning system was removed.  The owners say the builder asked Mr Stanley for advice on whom to use for the remedial work.  The remedial work done resulted in areas of unsatisfactory finish in the spa and the other two pools according to the owners.  Further, the owners say that the builder, without their approval, threw chlorine tablets into the pools which bleached and damaged the existing pool finish.

2. The builder said it engaged Infinity Pools to do the remedial work and to attend to all concerns raised by the owners with the finish.  The builder acknowledges one possible cosmetic issue which is visible under artificial light at night in the spa floor.  The builder says the remedial work is 90% complete.  The finishing coat to the pool is still to be resprayed. 

1. We find the finish of the internal surfaces around areas where in­floor cleaning parts were removed is not proper or proficient or is faulty or unsatisfactory and is to be remedied. 

2. The parties' experts did not agree on the scope of work required for this complaint item.  In our view, the scope of work required to remedy the finished surface of the pool and spa is:

   •remove areas around the former in­floor cleaning outlets;

   •re-apply Eco-Finish; and

   •make good any damage caused by the remedial work.

Complaint item 47 ­ pool ­ in-floor cleaning system

1. The owners seek reimbursement of $25,897 that they say they paid for the in-floor cleaning system removed during the remedial work.  The owners explained that the in-floor cleaning system was defective and leaked profusely resulting in severe protracted water loss from the pool, which resulted in its removal and re-finishing of the pools.  The owners say they agreed with the builder that they would be supplied two pool cleaning robots as set out in the original contract prior to the variations.

2. At the hearing the owners stated they want the builder to reimburse them the full cost of the robot that they purchased and provide them with another new robot of the same specification as per the original contract or otherwise reimburse them for the cost of the in­floor cleaning system.

3. The builder stated this complaint item was previously agreed with the owners whereby the builder would, at its cost, remove the in-floor cleaning system, then recoat/replaster the entire pool and compensate the owners by supplying an appropriate robot cleaning device.  The builder says no other compensation was asked for by the owners, or agreed to by the builder. 

4. The builder's position now is that it offers the owners $2,000 or to reimburse the owners for the cleaning system they purchased.

5. We decline to make a BRO, pursuant to s 38(1) of the BSCRA Act, for this complaint item for the reasons set out earlier at [88].

Complaint item 48 ­ pool ­ excess water charges incurred due to water leaking from pool

1. The owners explained that they have incurred excess water charges due to water leaking from the pool.  The owners seek reimbursement of $2,600 for excess water charges.  The owners say the builder's offer of $1,000 is insufficient and the pool will need to be re­filled again at a cost of approximately $300 once the resurfacing has been completed. 

2. The builder stated that the owners' claim is for an exaggerated volume of excess water.  However, at hearing the parties agreed for the builder to pay to the owners a contribution of $2,000 for excess water charges incurred due to water leaking from the pool.

3. We will make a BRO, pursuant to s 36(1)(b) of the BSCRA Act, for the builder to pay to the owners $2,000 for excess water charges as agreed by the parties at hearing.[58]

Complaint item 49 ­ costs of experts' inspections and reports to advise on defects

[58] ts 279, 16 September 2020.

1. During the course of the final hearing, we did not hear from the parties on the owners' application for costs in these proceedings. 

2. However, we will consider the owners' application for costs, and any submissions the builder wishes to make, after we determine what BRO to make under s 36(1) of the BSCRA Act in respect of all of the complaint items.

Complaint item 54 ­ eastern boundary wall next to lap pool ­ water races

1. The owners complain that since the previous pool repairs, all pool return water flows out through two of three water races at high velocity when the water races are turned on and no water returns through the pool returns and the flow rate is also no longer controllable.  The owners referred the Tribunal to Mr Stanley's report and to photograph 8 of Exhibit 2. 

2. At hearing the builder conceded that if the water races were previously functioning then the functionality should be reinstated and therefore it is a defect and is to be remedied.[59]  

   [59] ts 253, 16 September 2020.

3. We find that the pool return water flows and flow rate are faulty or unsatisfactory and are to be remedied.

4. The parties' experts agree the scope work required to remedy the faulty or unsatisfactory works is:

   •remedy the water race flows by adjusting the plumbing as necessary to ensure an even flow is provided as designed; and

   •make good any damage caused by the remedial work.

Complaint item 55 ­ spa ­ no sanitisation or filtration of spa when spa operating in isolation mode

1. The owners seek reimbursement of $6,900.85 in respect of this complaint item.

2. Mr Otto said he had not seen the specifications in the contract documents and was not aware of Australian Standard 2610-2007 but that in his view:[60]

   [T]he actual system, when it was originally designed, was designed to sanitise both the pool and the spa in either form of operation, by the use of actuators.  So the problem actually, at the moment, is more to do with the fact we can't get the separate water from the spa through the filtration.  So if a separate suction port was fitted – which would have to be two pipes … or a skimmer box – then that problem could probably be resolved where the spa is sanitised whilst in use as the Connect 10 and the actual equipment will allow that to happen.  But they will certainly – you can't keep the spa permanently heated and the pool – it's one or the other.  It is not both at the same time.

   [60] ts 212, 16 September 2020.

3. Further, Mr Otto explained that it was not necessary to separate the pipework, but the same filter could be used at separate times to filter the pools and then switched to filter the spa, which is how the pools and spa were originally designed and that all that would be needed is separate intakes so that the spa water can be sucked and returned to itself.[61]  Finally, Mr Otto was of the view that the functionality of the spa can be restored with the infrastructure in place.[62]

   [61] ts 221, 16 September 2020.

   [62] ts 223, 16 September 2020.

4. Mr Dawson said he had not seen the specifications in the contract documents and was not aware of Australian Standard 2610-2007, but that in his view:[63]

   [A] skimmer box is not absolutely necessary, but in order for it to function independently it does need to have a separate suction.  So it does really need to have the ports drilled into the wall if it's going to have its own separate water flow to be able to isolate the system with the sanitiser on it.

   [63] ts 214, 16 September 2020.

5. Mr Stanley stated that he only saw the specifications in the contract documents the day before the hearing.[64]  Having said that, Mr Stanley stated that the spa must have a skimmer box as required by Australian Standard 2610-2007.  Mr Stanley said that even though a skimmer box was not specified for either the pool or the spa in the specifications, it is implied that such skimmer boxes would be installed.  Apart from the skimmer boxes, Mr Stanley said what was built in terms of the pools and the spa is per the specifications.[65]  Further, Mr Stanley stated that the problem of the water flow occurred because the pools were at different levels.[66]

   [64] ts 216, 16 September 2020.

   [65] ts 217, 16 September 2020.

   [66] ts 218, 16 September 2020.

6. Again, we decline to make a BRO, pursuant to s 38(1) of the BSCRA Act, for this complaint item for the reasons set out earlier at [88].

Complaint item 56 ­ spa ­ spa operation is not properly automated through controller pad that was installed for that purpose and has dedicated spa and pool modes

1. The owners refer to complaint item 55 and seek reimbursement of $6,900.85.

2. Again, we decline to make a BRO, pursuant to s 38(1) of the BSCRA Act, for this complaint item for the reasons set out earlier at [88].

Complaint item 58 ­ front wall of house, north western corner ­ render delaminating from wall

1. The owners complain there is bubbling render between the window joint and the wall adjacent to the garage.  The owners referred the Tribunal to photograph 10 of Exhibit 2.

2. The builder commented that the defect is 'cosmetic' and that it would patch and fix the bubbling render as part of other rectification work.[67]  

   [67] ts 283, 16 September 2020.

3. We find that the front wall of the house with delaminated render is faulty or unsatisfactory and is to be remedied.

4. The parties' experts agree the scope of work to rectify the delaminating render is:

   •remove areas of delaminating render;

   •render areas where delaminated render was removed; and

   •make good any damage caused by the remedial work including painting.

Complaint item 60 ­ western boundary wall ­ damaged paint/render on boundary wall

1. The owners complain that the paint/render on the boundary wall which runs down the side of the house was damaged by the builder during remedial work on the laundry steps.  The owners referred the Tribunal to photograph 11 of Exhibit 2.

2. The owners stated they had discussion with Mr Robert Woodforde, for the builder, on site when they refused to let him proceed with what they say was an inappropriate fix.  The owners said they pointed out the wall to Mr Woodforde who said 'Yes, no problems, we will get that fixed as part of the rectification work'. 

3. The builder was concerned that a significant period of time had elapsed and if damage had been done, that a record was not made.[68]  The builder stated that he spoke with Mr Woodforde before the hearing commenced on 17 September 2020 and that Mr Woodforde denied any such discussion was had with the owners and that he made no admission to the owners.[69]

   [68] ts 285 to 286, 16 September 2020.

   [69] ts 428, 17 September 2020.

4. We find that the damaged paint/render on the boundary wall to be faulty or unsatisfactory and is to be remedied.

5. The parties' experts did not agree on the scope of work to remedy this complaint item.  In our view, the scope of work required to remedy the damaged areas of the wall is:

   •make good to any areas of damaged render;

   •paint to match; and

   •make good any damage caused by the remedial work.

Complaint item 61 ­ rear yard; wall between rear balcony and fire pit ­ crack re-appearing in wall

Complaint item 63 ­ bedroom 4, southern wall ­ large horizontal crack in wall and delaminating render

Complaint item 64 ­ bedroom 3, basement foyer, first floor landing ­ cracks in wall

1. The owners complain that following remedial work by the builder, the crack is re-appearing in the wall between the rear balcony and fire pit.  The owners referred the Tribunal to photograph 12 of Exhibit 2 taken on 13 January 2020.  Further, the owners complain there are cracks in the wall in bedroom three and four, the basement foyer and the first floor landing and there is delaminating render in bedroom four. 

2. At hearing Mr Machell explained that the general principle with cracks is that you assess them according to their width and their location and frequency.  Mr Machell referred the Tribunal to Australian Standard AS2870 and in particular Appendix C of that standard which sets out damage categories.  Mr Machell said the standard explains that if the crack is less than one millimetre then the crack is not a defect, and if it is greater than one millimetre it may require further investigation.[70]  Mr Machell suggested if you have five cracks in a row and all running up the building and all less than a millimetre then those cracks may be a defect.[71]  

   [70] ts 431, 17 September 2020.

   [71] ts 433, 17 September 2020.

3. At hearing the builder conceded that cracks equal to or greater than one millimetre require remedial work by way of patching the crack and repaint.

4. We find that the crack re-appearing in the wall between the rear balcony and fire pit to be faulty or unsatisfactory and is to be remedied. 

5. The parties' experts did not agree on the scope of work to remedy this complaint item.  In our view, the scope of work required to remedy the cracking to the rear wall is by:

   •rake out any cracking over one millimetre wide;

   •fill all cracks with a selected paintable elastomeric filler; and

   •make good any damage caused by the remedial work.

Complaint item 62 ­ rear balcony ­ staining on tiles on rear balcony

1. The owners complain of staining on the tiles of the rear balcony which occurred due to the builder storing the stainless steel pool cover there when it was doing remedial work on the pool steps.  The owners referred the Tribunal to photograph 22 of Exhibit 2.

2. At hearing the builder conceded the staining on the tiles on the rear balcony needs to be professionally cleaned.[72] 

   [72] ts 288, 16 September 2020.

3. We find that the staining on the tiles on the rear balcony to be faulty or unsatisfactory and is to be remedied.

4. The parties' experts did not agree on the scope of work to remedy this complaint item.  In our view, the scope of work required to remedy the staining on the tiles on the rear balcony is:

   •professionally clean the tiles; and

   •make good any damage caused by the remedial work.

Conclusion

1. In summary, the Tribunal:

   •gives leave to the owners to withdraw complaint items 5, 6, 8, 9, 10, 11, 12, 18, 20, 40, 41, 44, 52 and 57 and those complaints are withdrawn (and are therefore not dealt with further by the Tribunal).  [We note that by order of the Tribunal on 16 September 2019, the Tribunal gave leave to owners to withdraw complaint items 16, 26, 37, 46, 50 and 51 and those complaint were withdrawn then.]; and

   •declines to make a BRO with respect to complaint items 3, 19, 38, 47, 55 and 56;

   •will order the builder to pay to the owners $2,000 for complaint item 48 (pool ­ excess water charges) within 28 days of these orders; and

   •finds the building work, the basis of complaint items 1, 2, 4, 7, 13, 14, 15, 17, 21, 22, 23, 24, 25, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 39, 42, 43, 45, 54, 58, 59, 60, 61, 62, 63 and 64, was not carried out in a proper and proficient manner, or was faulty or unsatisfactory and is to be remedied. 

2. In regards to the building work, the basis of complaint items 1, 2, 4, 7, 13, 14, 15, 17, 21, 22, 23, 24, 25, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 39, 42, 43, 45, 54, 58, 59, 60, 61, 62, 63 and 64, which we found was not carried out in a proper and proficient manner, or was faulty or unsatisfactory and is to be remedied, the Tribunal will adjourn the matter to a directions hearing in order to program the matter to a final hearing to determine what BRO to make under s 36(1) of the BSCRA Act.

3. For the reasons set out above, the Tribunal will make the following orders.

Orders

In matters CC 1816 of 2019 and CC 278 of 2020, the Tribunal orders:

1.Pursuant to s 46(1) of the State Administrative Tribunal Act 2004 (WA) the applicant has leave to withdraw complaint items 5, 6, 8, 9, 10, 11, 12, 18, 20, 26, 40, 41, 44, 52 and 57 and those complaints are withdrawn.

2.Pursuant to s 38(1)(b) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) the Tribunal declines to make a building remedy order for complaint items 3, 19, 38, 47, 55 and 56 and they are dismissed pursuant to s 46(2) of the State Administrative Tribunal Act 2004 (WA).

3.Pursuant to s 36(1)(b) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) the respondent shall, within 28 days of these orders, pay to the applicants $2,000 for complaint item 48.

4.The matter is adjourned to a directions hearing at 9:30 am on 21 December 2020 at 565 Hay Street, Perth, Western Australia.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MS R PETRUCCI, MEMBER

4 DECEMBER 2020