Brooks and Gransden Building Company Pty Ltd [No 2] - [2021] WASAT 86

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   BROOKS and GRANSDEN BUILDING COMPANY PTY LTD [No 2] [2021] WASAT 86
MEMBER:   MS R PETRUCCI, MEMBER
MR R AFFLECK, SENIOR SESSIONAL MEMBER

HEARD:   8 MARCH 2021 AND 11 MARCH 2021 (LAST DOCUMENT FILED 23 MARCH 2021)
DELIVERED          :   15 JUNE 2021
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) - Building dispute - Exercise of discretion in making a building remedy order - Costs of remedial work - Whether order to remedy or order to pay is appropriate - Monetary order - Application for costs - Turns on own facts

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 36(1), s 36(1)(a), s 36(1)(b), s 36(1)(c), s 36(3), s 38, s 38(1), s 49 s 49(1), s 51
State Administrative Tribunal Act 2004 (WA), s 9, s 87, s 87(1), s 87(2) - s 87(6)

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):

Brodun Construction and Love & Anor [2008] WASAT 174
J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S)
Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S)
Medical Board of Western Australia and Kyi [2009] WASAT 22
Nelson v Mardesic (1998) 22 SR (WA) 42
Panegyres v Medical Board of Australia [2020] WASCA 58
Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [No 2] [2008] WASAT 302 at [67]
Rae and Prima Homes Nominees Pty Ltd [2020] WASAT 24
Sanders and Gemmill Homes Pty Ltd [2017] WASAT 41
Trengove and Celebration Nominees Pty Ltd [2012] WASAT 65; (2012) 80 SR (WA) 77
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32

REASONS FOR DECISION OF THE TRIBUNAL:

On 4 December 2020 the Tribunal delivered its written decision in Brooks and Gransden Building Company Pty Ltd [2020] WASAT 151 where the Tribunal determined that 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.
Despite protestation by Gransden Building Company Pty Ltd[1] (builder or respondent), the Tribunal, in the above decision, concluded it was appropriate and necessary to specify for each complaint item the scope of the remedial work. Where Dr Craig Brooks and Mrs Melissa Brooks' (owners or applicants) experts and the builder's experts agreed on the scope of works, the Tribunal adopted that scope of work. Where there was no agreed scope of works for the remedial work, the Tribunal set out the scope of work after careful consideration of the evidence before it. Brodun Construction and Love& Anor [2008] WASAT 174 (Brodun) at [45] is authority for the Tribunal adopting that approach. In Brodun it was held that the Building Commissioner may specify the scope of the remedial works as follows:
[T]the Tribunal cannot find any limitation in the BR Act against the BDT electing the methodology for the fixing of faulty and unsatisfactory workmanship[.]
[1] According to Mr Tim Lorian, director of Gransden Building Company Pty Ltd, the name of the company was changed to GATL Developments Pty Ltd about 14 months ago. The company is not a registered builder as it let its registration lapse in September 2020 (ts 38 - 39, 11 March 2021).
It follows, therefore, that the Tribunal is similarly not limited in electing the methodology for the fixing of faulty and unsatisfactory workmanship. In other words, the Tribunal may specify the scope of the remedial works. In stating that, we accept that the experts may hold different views as to the most appropriate way to remedy the works that are to be remedied. However, the Tribunal has the benefit of all of the experts' evidence, and it is therefore in a position to make findings and to specify the scope of remedial work on the basis of the evidence it heard.
Following the Tribunal's determination in the above decision (refer above at [1]) to make a building remedy order (BRO) under s 38 Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act), on 21 December 2020, a directions hearing was held to program the matter to a final hearing to determine the particular form of the BRO to be made under s 36(1) of the BSCRA Act. The parties were ordered to file with the Tribunal and to provide a copy to the other party all of the documents on which they wished to rely including any expert reports, photographs and quotations or other documents relevant to the costing of the complaint items with reference to the scope of works set out in the Tribunal's decision for each of the complaint items (refer above at [1]).
The matter was heard over two days on 8 and 11 March 2021. At the conclusion of the hearing on 11 March 2021, further orders were made for the parties to file updated cost schedules. Following the receipt of an updated cost schedule from the owners (prepared by Mr Michael Agostino from Trendsetter Homes dated 29 January 2021 (Trendsetter statement) and an updated cost schedule from the builder (prepared by Mr John Glaisner, a quantity surveyor, dated 16 March 2021 (Mr Glasiner's costing), on 23 March 2021, the Tribunal reserved its decision.
For the reasons which follow, the owners' application is partly successful. We will make a monetary order in the amount of $134,051 which the builder will be required to pay to the owners within 28 days of these orders and we will fix the amount of costs at $12,000 which will also be payable by the builder to the owners within 28 days of these orders.

The issues

The issues to be determined by the Tribunal are:
1)Should the Tribunal make a remedial works order or an order for payment of the costs of carrying out the necessary remedial work, and if the latter, what amount should be awarded?
2)Should the owners be entitled to an order for recovery of their expert witness costs?

Issue 1 - Should the Tribunal make a remedial works order or a monetary order?

The right to a BRO arises out of defects in the work subject to the regulated building service.
Previously, the Tribunal found defects in the work the subject 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 (refer above at [1]). The Tribunal exercised its discretion under s 38(1) of the BSCRA Act to make a Building remedy order (BRO) in respect of these complaint items (refer to [238] - [239] of the decision referred above at [1]).
The Tribunal having exercised its discretion under s 38(1) of the BSCRA Act to make a BRO, the Tribunal has to now exercise its discretion conferred under s 36(1) of the BSCRA Act to make a particular order in the form of s 36(1)(a), (b) or (c) as follows:
(1)A building remedy order consists of one of the following
(a)an order that a person who carried out a regulated building service remedy the building service as specified in the order;
(b)an order that a person who carried out a regulated building service pay to an aggrieved person such costs of remedying the building service as the Building Commissioner or State Administrative Tribunal, as the case requires, considers reasonable and specifies in the order;
(c)an order that a person who carried out a regulated building service pay to an aggrieved person a sum of money specified in the order to compensate the aggrieved person for the failure to carry out the building service in a proper and proficient manner or for faulty or unsatisfactory building work.
The owners seek a monetary order stating they do not want the builder to attend to any of the remedial work. The owners stated that they have secured a builder who is willing to perform the remedial works for a fixed price.[2]
[2] ts 4, 8 March 2021.
The builder opposes any monetary order. In his capacity as a director of the builder, Mr Lorian stated:[3] [4]
I [Mr Lorian] found out within two months [of buying out Mr George Allingham] that he [Mr George Allingham] had left a series of problems, including your [the owners'] home.
…
[T]he company will not survive this. The company is already in a negative net asset position. We have - and I as a director have maintained and represented the company to this point in the interests of all players.
The company is not technically insolvent or - but we are not transacting, we're not running - we are simply in the status of paying out existing trading creditors, which are very few. We have continued to do maintenance for clients, but we are not transacting, we're not invoicing. We're - we're basically - and we are not building. We haven't built - we haven't been building for two years.
…
[T]he only reason Gransden can't afford to deal with the remedies here is that they have been unfairly dictated remedies that are totally exorbitant and inappropriate, and … the SAT should have determined whether something was a defect or not, and then allowed us to go and seek expertise, but basically, go back to our trades and say, 'How do you fix this?'.
[3] ts 6, 11 and 19, 8 March 2021.
[4] ts 42, 11 March 2021.
In reply, the owners stated:[5]
[Mr Lorian] has always said that he will come and do things, and [we] think that he played the long game knowing this was going to happen, and it's extremely disappointing. He had no intention of fixing anything.
[5] ts 8, 8 March 2021.
The nature of the BRO is an important consideration. The reason for this is because there is significant difference between a BRO made under s 36(1)(a) and that made under s 36(1)(b) or s 36(1)(c) of the BSCRA Act. The difference is that there are advantages to the owners if the Tribunal makes an order under s 36(1)(a) which are not available under s 36(1)(b) or s 36(1)(c). The advantages include that an order under s 36(1)(a) provides the owners with the added protection that if the remedial work is not performed, or is performed in a faulty or unsatisfactory manner, the owners may seek an order under s 51 of the BSCRA Act which effectively allows for the 'conversion' of the order requiring remedial work to be performed to a monetary order reflecting the costs of a third party performing that work.
A further advantage of an order under s 36(1)(a) is that any ambiguity which may arise in relation to the issue of liability if the remedial work is itself faulty or unsatisfactory is avoided.
Finally, an order under s 36(1)(a) may be advantageous because third party contractors are often reluctant to perform remedial works in respect of another builder's underlying work. It is therefore, often difficult to obtain reliable evidence on the costing of remedial work on a third party basis, and if that costing is provided by an independent expert, the expert is not available to do the remedial work (see Sanders and Gemmill Homes Pty Ltd [2017] WASAT 41 (Sanders and Gemmill) at [30] - [33]).
There is also an advantage to the builder if the Tribunal makes an order under s 36(1)(a) which is not available under s 36(1)(b) and 36(1)(c) of the BSCRA Act. The builder can usually carry out remedial work at a cost less than would be charged by a third party contractor who would usually charge a premium for doing that work (see Nelson v Mardesic (1998) 22 SR (WA) 42 at [46].

Applicable principles in deciding whether to make a remedial works order or a monetary order

In deciding to make a BRO we have taken in consideration the principles enunciated in Trengove and Celebration Nominees Pty Ltd [2012] WASAT 65; (2012) 80 SR (WA) 77 (Trengove) as set out in Gemmill Homes Pty Ltd –v- Saunders [2018] WASC 179 (Gemmill and Sanders) at [33] as follows:
…
(a)At the heart of the issue as to what order is appropriate is the question as to whether the relationship between the parties has irretrievably broken down. The fact that it is the builder asserting that the relationship has broken down does not matter. The principles equally apply whether it is a builder or an owner making the assertion. This is an important consideration for a number of obvious reasons, including the primary one, namely, to ensure some finality in litigation. If the Tribunal were to order remedial work in circumstances where the relationship between the parties has irretrievably broken down, it is likely not to result in finality of the disputes arising between those parties.
(b)The Tribunal looks to the relationship between the parties and whether the owner has lost confidence in the builder, the willingness or otherwise of the builder to perform remedial works, whether it has performed remedial works which have been unsatisfactory, whether the builder has been refused access, and whether, for example, the extent of the remedial work itself evidences perhaps a lack of competence or ability on the part of the builder which justifies the owner losing confidence in the builder's ability.
We also have taken into account that there is no right or requirement on a party to a complaint to elect whether the builder undertakes the remedial works: Gemmill and Sanders at [131] and [135] - [139].

Application of applicable principles

The owners submit that as early as March 2020 they informed the builder (and its then legal representative) that they would be seeking to amend the orders sought from the Tribunal in these proceedings from a 'works order' to a 'monetary order' for the following reasons:
(a)the builder's then legal representative indicated on 3 March 2020 (two days before the then hearing before the Tribunal) that it would be pointless for the owners to proceed with their claim because the builder no longer had a registered building supervisor, that they had no intention of hiring another one and it was possible they were going into liquidation;
(b)whilst the builder did register another building supervisor, the registration expired on 1 September 2020 (two weeks prior to the then final hearing date); and
(c)they have totally lost faith in the builder's competence and trustworthiness.
The builder's position is that it has continued for the past three years to attempt to address and remedy the defects claimed by the owners. It is Mr Lorian's evidence that the owners denied the builder access to the site to remedy the defects. Mr Lorian states that the builder was never given unfettered access to the owners' property for the builder's expert, Mr Richard Machell of Prescient Consulting, to assess the owners' defect claims. Mr Lorian submits that 'trades are reluctant to attend given [the owners'] adversarial and dictatorial history of interference of the work site during construction'.
Mr Lorian acknowledged that following practical completion there was a 'certain degree of tension' between the owners and the builder because 'it was a difficult relationship'.[6]
[6] ts 135, 11 March 2021.
The owners deny that they refused the builder access to their property apart from the laundry step complaint (complaint item 32) because the builder continued to deny that it (the builder) had failed to construct the stairs per the plans and even after the builder had two engineers attend to site, no reports were put to the owners to back up the builder's view. The other area the owners accept they stopped the builder is in relation to grout where the builder wanted to use surface paint on the grout (complaint item 13).
The owners say that in addition to granting the builder access over the past three and one half years, the owners' evidence is that they offered access on 15 June 2020 from 9 am to 12 noon but the builder or its experts did not attend, they offered access on 22 June 2020 from 9 am to 12 noon and again no one attended, and again on 29 June 2020 where Mr Lorain and Mr Richard Machelle attended. Further, the owners say they granted access on 20 July 2020 and the builder attended for approximately one and one half hours. Following that access, the owners say they did not receive any further requests from the builder to access their property.
The owners emphasised that they have no faith whatsoever that the builder will return and do the work competently or do any work in a timely fashion and that would lead to continual dispute. The statements made by Mr Lorian that 'Gransden wasn't in a position to send people out and do the work anyway' and comments that the builder had no money is of concern to the owners.
Mr Lorian said the 'system is broken' In Mr Lorain's view, the matter should have been handled by the Building Commissioner and an independent expert should have been sent out to site to save the parties having to go through the 'chemist and technical experts and six engineers' over a simple residential project. Mr Lorian described the situation as a 'massive overkill' but understood the owners wanting to get an amount of money. It is Mr Lorian's view that to complete the remedial works it should cost no more than $50,000, or less if the remedial works were done in a timely fashion.[7]
[7] ts 145, 11 March 2021.
Mr Lorain stated that if the builder was 'antagonistic' then he would have said to the owners 'just stick it' and would have walked away. It is Mr Lorian's evidence that the builder was tempted to walk away many times but it did not. Rather, Mr Lorian said the builder has stuck it out.
We note the builder is no longer registered. This does not mean the Tribunal is precluded from making a remedial works order (s 36(3) of the BSCRA). However, Mr Lorian, for the builder stated on at least two occasions at hearing on 8 March 2021 that the builder did not have the resources to go out to do the remedial works.[8]
[8] ts 55, 11 March 2021.
We are satisfied that there is an irretrievable breakdown in the sense as explained in Trengove see above at [18]) in the relationship between the owners and the builder where the owners stated they have totally lost faith in the builder's competence and trustworthiness.
We are therefore of the view that in order to bring finality to the litigation between the owners and the builder, a monetary order (rather than a remedial works order) is appropriate in all of the circumstances of this case.

What amount is to be awarded under the monetary order?

We worked through the scope of work for each of the complaint items (refer above at [1]) with the parties to consider the costings provided. During this process we spoke with the parties' respective costings expert(s). A summary of the costings experts' evidence is provided below at [127] – [139].
Mr Lorian gave evidence that Mr Glaisner originally costed the complaint items against the Trendsetter statement (filed by the owners), before the Tribunal handed down its decision in December 2020 (refer above at [1]).[9] Further, it is Mr Lorian's evidence that Mr Glaisner then reviewed the scope of works per the Tribunal's decision (refer above at [1]) and updated his costings on the basis of 'This is how I [Mr Glaisner] would fix them'.[10] Mr Lorian disputed the Tribunal's approach in considering the costings evidence. Mr Lorian's position is:[11]
[I]t should be what it would cost the builder to fix is what's in question here. Not going - or going to a new builder and rebuilding the house would cost.
[9] ts 57, 11 March 2021.
[10] ts 48, 11 March 2021.
[11] ts 55, 11 March 2021.

Mr Glaisner adopted Mr Lorian's position in that his costings reflected the cost for the builder. Mr Glaisner's costing schedule provided as follows:
Builder's pricing therefore no margin allowed.
As stated earlier, Mr Lorian claims that the builder was denied access to the owners' property. If Mr Lorian's claim is accepted, then, in our view, it would be appropriate to determine the costing of the remedial works on what it would cost the builder to undertake those remedial works. However, in this case, there is no evidence before the Tribunal to support Mr Lorian's claim that the builder was denied access to the owners' property apart from in relation to complaint items 13 and 23 which the owners conceded (refer above at [23]). Therefore, apart from when we consider complaint items 13 and 23, we will not limit our consideration of the costings to what it would cost the builder to do the remedial works, but rather we will consider the cost of a third party contractor to do the remedial work.

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

Complaint item 30 - pool steppers between spa and the lap pool

The owners referred to a quote dated 16 June 2020 from P & B Concrete Pools WA for $1,823.80, which was obtained through their pool expert, Mr Cal Stanley. The owners conceded that the quote probably included the cost for the purchase of tiles. The owners said the tiles were priced at $220 per square metre for the mosaic waterline tiles and the plinth tiles were about $150 per square metre.
The builder referred to Mr Glaisner's costing wherein Mr Glaisner refutes that the mosaic tiles were poorly laid and that the area that has mosaics is less than one square metre. The costing provided was $150 for complaint items 1 and 2. Mr Lorian explained at hearing that his 'tiler was coming back to do it for nothing, but I've put $150 a square metre. We have square mosaics in our office, and we can fix it for $150 maximum'. For complaint item 30, the builder submitted a cost of $195 on the basis of one drummy tile.
We note the quote from P & B Concrete Pools WA includes an amount for 'Provisional sum for tiles $400 inc gst'. In the Tribunal's scope of works for these complaint items no provision was allowed for the purchase of tiles. This was because, in our view, the drummy tiles could be removed and relayed.
We do not accept the builder's costing as it does not cover the scope of works. Subject to the further adjustment required as detailed below at [140] [142], in our view, a fair and reasonable cost to complete the scope of works required to remedy complaint items 1, 2 and 30, after deducting $400 for tiles is $1,423.80.

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

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

The owners referred to Trendsetter's statement for complaint items 4 and 28. The amount claimed is $12,977 which includes 'supply new channel grate with puddle flange' $644, 'Paint ceiling' $179 and 'Remove shower screen and reinstall' $644. It was explained by the owners that these were included because the second dot point on the scope of works is worded 'adjust the drain to suit - if required'. The owners said that Mr Agostino from Trendsetter Homes explained in undertaking the remedial works tiles would be removed and the floor jackhammered in order to get the appropriate slope for the floor which would destroy the puddle flange. Further, the owners said in order to remove the tiles, the shower screen would need to be removed and then reinstalled.
The builder's position referring to Mr Glaisner's costing is that the remedial works can be done for $1,050 or $350 per square metre. No breakdown of this costing was provided.
We do not accept the builder's costing as it did not cover the scope of works. Subject to the further adjustment required as detailed below at [140] - [142], we conclude that a fair and reasonable cost to complete the scope of works required to remedy complaint item 4 is $12,977.

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

The owners referred to the Trendsetter statement showing a cost of $1,037 for a plumber to install feed and connect to the floor drain near steps and supply and install a metal shroud cover to enclose the condensate pipe.
The builder provided its costing to install a condensate drain including materials and a cover for the pipework for $458.15.
We prefer the costing in the Trendsetter statement, because in our view, the shroud to cover the condensate pipe would cost more than the $250 allocated by the builder. We are also not satisfied that the builder has costed all of the scope of work required for this complaint item. Subject to the further adjustment required as detailed below at [140] [142], we conclude that a fair and reasonable cost to complete the scope of works required to remedy complaint item 7 is $1,037.

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

The owners again refer to the Trendsetter statement showing a cost of $24,525 to remove and replace 250m² of grout area, supply new cement based (Morgan Sicily) grout, sealing of the grout and cleaning of floor after completion of the remedial works.
The builder's response was the costing by Trendsetter Homes is exorbitant at over $10 per square metre for grout when they charge, at most, $1 per square metre for grout. According to Mr Lorian, the most expensive grout is $40 for 20 kilograms. Mr Lorian said that if the grout had to be removed then that is a very simple process which is done with a very simple tool. It is Mr Lorian's view that the 'Renue'N'seal' product perfectly restores the grout colour to black and every grout supplier in Western Australia will back him that black grout does not stay black and therefore the 'Renue'N'seal' product is the appropriate one to use. Mr Lorian explained the builder's costings are based on using the 'Renue'N'seal' product. For this complaint item, the builder provided a costing of $1,418 for a tiler to clean the existing grout and apply 'Renue'N'seal' and the supply of 'Renue'N'seal'. At hearing, Mr Lorian said, in his view, having worked in tiling for 16 years, a reasonable price to rake out the grout and replace it would cost all up about $6,000.
We prefer the costing from Trendsetter Homes because it provides for raking out all grout in the affected area and re-grout with compliant grout of consistent colour (Morgan's Sicily product). In our view, the work to rake out all the grout in the affected area will be substantial which is reflected in the costing. The owners conceded (see above at [23]) that they stopped the builder accessing the property in respect of this complaint item.
Subject to further adjustment required as detailed below at [140] [142], we conclude that a fair and reasonable cost to complete the scope of works required to remedy complaint item 13 is $24,525 adjusted by 25% (on the basis that Mr Agostino allowed a 25% margin in his costs)[12] to $18,393.75 on the basis the owners conceded that they refused access to the property by the builder in respect of this complaint item (see above at [34]). Because of that, we will only award the third party contractor cost reduced by the 25% margin, or an amount of $18,393.75 for complaint item 13.

Complaint item 14 and 59 - guest bedroom - air-conditioning not working effectively

[12] ts 104, 11 March 2021.

The owners say the builder attempted to rectify the problem previously when Ford & Doonan attended the property and cut holes in the ceiling in the study and the guest bedroom to access the ducting and the air valves that control the air-conditioning system. The owners submit the Trendsetter statement to do essentially the same as the previous remedial works attempted by Ford & Doonan. The costing provided is $5,720 for ducting rectification and return air vibration including required ceiling patches for access.
The builder disputed the cost and said it would cost nothing to get Ford & Doonan back, under warranty, to rectify any issues. Mr Lorian stated that when panels are cut out that is where the big cost is.
We do not accept the builder's costing as it does not cover the scope of works.
On the evidence available to us, subject to the further adjustment required as detailed below at [140] - [142], we conclude that a fair and reasonable cost to complete the scope of works required to remedy complaint items 14 and 59 (they are in effect the same complaint item) is $5,720.

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

The owners referred to a tax invoice with reference to 'quote for modifications to plumbing etc' dated 11 June 2020 from T. A. Conduit which, although did not expressly provide a costing for this complaint item, includes the cost of $605 for 'installing new equipment and tidy up existing install'. The owners submit this costing covers this complaint item.
Again, the builder's position is that the manufacturer would be called out to deal with any issues under the warranty and therefore there is no cost.
We are not satisfied that the T. A. Conduit document concerns complaint item 15 which requires the temperature sensor to be adjusted so that it functions properly, otherwise to be replaced. As no other costing has been provided, subject to the further adjustment required as detailed below at [140] - [142], we conclude that a fair and reasonable cost to complete the scope of works to remedy complaint item 15 is $100 to adjust the temperature sensor so that it functions properly. We have not allowed for replacement of the temperature sensor (in the event the adjusting is not successful) as no costings were provided.

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

The owners referred to the same tax invoice with reference to 'quote for modifications to plumbing etc' dated 11 June 2020 from T. A. Conduit which includes an amount of $935 to supply and install a water witch to the pool. In addition, the owners referred to the Trendsetter statement showing a cost of $1,500 for the water connection to disconnected while the water witch is installed and to remove and then to reinstall the decking as the plumbing is under the decking. The total cost is $2,435.
The builder's position is that it can replace the current water top up system with the water witch for $1,500 comprised of $1,000 for the unit and $500 to install it. Mr Lorian did not accept the owners' cost for plumbing and the removal and reinstallation of the decking, stating the builder has removed the decking and put it back in less than one hour many times.
We prefer the owners' costing as the builder failed to provide a costing for the removal and reinstallation of the decking.
Subject to the further adjustment required as detailed below at [140] - [142], we conclude that a fair and reasonable cost to complete the scope of works required to remedy complaint item 17 is $2,435.

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

The owners referred to the Trendsetter statement showing a cost of $1,359 to remove affected tiles and relay (the owners to supply the tiles).
Mr Lorian said the owners cost to replace one tile is 'totally ridiculous'. Mr Lorian, referring to Mr Glaisner's costing, and said one hour of a tiler's time to remove and relay one tile and some grout would cost no more than $98.
We note the Trendsetter statement for complaint item 21 is headed 'remove and replace 1 x tile'. We are not satisfied that a fair and reasonable cost to complete the scope of works to remedy complaint item 21 for one tile (where the owner is to supply the tile) would be $1,359. We accept the builder's position that such remedial work would take about an hour. We have adjusted the builder's cost by 25% on the basis that the owners will need to engage a third party contractor to complete the remedial works. Subject to the further adjustment required as detailed below at [140] - [142], we conclude that that a fair and reasonable cost to complete the scope of works to remedy complaint item 21 is $122.50.

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

The owners referred to the Trendsetter statement showing a cost of $5,204 to remove and reinstall the Zesti oven, to supply tiles and to install tiles to the pizza oven base.
Mr Glaisner's costing is $102.50 for a tiler to clean and apply new grout and to form joint and refill missing grout for complaint items 22 and 23.
We again prefer the costing provided by the owners as the builder has not provided any costing for tiles. Subject to the further adjustment required as detailed below at [140] - [142], we conclude that a fair and reasonable cost to complete the scope of works required to remedy complaint item 22 and 23 is $5,204.

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

The owners referred to the Trendsetter statement showing a cost of $2,360 to sand and repolish floor in satin finish to the entire bedroom and the provision of timber materials, sanding and stain.
Mr Lorian explained that Mr Glaisner worked on 20 square metres to sand and remove the marks costing $700.
We do not accept the Trendsetter statement for this complaint item as the cost provided is to sand and repolish the entire bedroom floor. The scope of works is limited to sanding the floor surface to remove the marks. We accept the builder's costing of $700 but have adjusted the amount by 25% on the basis that owners will have to engage a third party contractor to complete the remedial works. Subject to the further adjustment required as detailed below at [140] - [142], we conclude that a fair and reasonable cost to complete the scope of the works required to remedy complaint item 24 is $875.

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

The owners referred to the Trendsetter statement showing a cost of $4,719 to firstly install scaffolding to the rear balcony and then to remove mastic, sand beam back to steel, coat with surface tolerant epoxy coating and remastic edge including mecacious beam finish. The major part of the costing is for scaffolding at $3,146 which includes delivery, erection and then removal.
The builder referred to Mr Glaisner's costing of $175 which includes labour to erect and dismantle scaffolding, painting top of beam and the cost of paint. Mr Lorian explained that the builder has its own scaffolding and therefore it does not have to cost in an amount for scaffolding hire. Mr Lorian said the builder could buy the scaffolding for about $3,000.
We again prefer the costing provided by the owners because the builder's costing does not provide for the supply of scaffolding and it only provides for painting the top of the beam and the cost of paint but does not provide for sanding back the affected surface, treating the steel beam with a suitable galvanised surface primer. Subject to the further adjustment required as detailed below at [140] - [142], we conclude that a fair and reasonable cost to complete the scope of works required to remedy complaint item 25 is $4,719.

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

The owners referred to the quote dated 1 February 2021 from All Surface Restorations (ASR) for $935 for the following:
brickwork to be bagged and joints full; remove soil and expose below ground area untreated in contact with soil; footing to be free of sand, debris and mortar droppings; waterproof render to exposed bricks; apply two coats of waterproofing to below ground wall and footing joints; protection of waterproofing is required before back filing and back fill soil.
Mr Lorian, referring to Mr Glaisner's costing, described this complaint item as a 'minor service item' which would cost $90 comprised of materials $25 and labour $65.
We again prefer the costing provided by the owners as the builder's costing does not cover the scope of works for this complaint item. Subject to the further adjustment required as detailed below at [140] [142], we conclude that a fair and reasonable cost to complete the scope of works required to remedy complaint item 27 is $935.

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

The owners referred to the Trendsetter statement showing a cost of $11,769 which includes $1,573 to remove plants and store the plants for the duration of works and then to reinstate them after the remedial works are completed.
Mr Glaisner's costing is $560 (at $28 for 20 square metres) for this complaint item. At hearing Mr Lorian said a total costing of $600 would be 'realistic and over the top' amount to complete the remedial work for this complaint item.
We again prefer the costing provided by the owners because the builder's cost does not cover the scope of works for this complaint item. However, we have reduced the Trendsetter statement amount by the amount shown for the removal of the plants and storage for the duration of the works and then to reinstate after the remedial works are completed as this does not form part of the scope of works. Subject to the further adjustment required as detailed below at [140] - [142], we conclude that a fair and reasonable cost to complete the scope of works required to remedy complaint item 29 is $10,196.

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

The owners referred to the Trendsetter statement showing a cost of $11,476.
Mr Glaisner's costing allowed $440 for a tiler to clean and inject WPM300 and clean up. The product WMP300 costs $375.
We again prefer the costing provided by the owners as the builder's costing does not cover the scope of works for this complaint item. However, we have reduced the Trendsetter statement by the amount shown for the supply of new tiles $3,647 and to re top coat and patch entry wall from removing tiles $644 as these were not provided for in the scope of works. Subject to the further adjustment required as detailed below at [140] - [142], we conclude that a fair and reasonable cost to complete the scope of works required to remedy complaint item 31 is $7,185.

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

The owners referred to the Trendsetter statement showing a cost of $28,607 to remove concrete steps outside laundry; waterproof behind steps down under the natural ground level; form and pin steel for new steps; pour concrete for new steps; waterproof new steps; engineering inspection; remove tiles to laundry landing, re screed and waterproof, tile new steps and laundry landing; re top coat base of rendered wall including to the appropriate join for consistency and re instate paving.
There is also a quote from ASR dated 1 February 2021 for $3,663. This includes the application of Memflex above ground waterproofing to the area of slab above the steps which was not provided for in the Tribunal's scope of works. However, this quote failed to provide for the removal of steps or to reconstruct the steps as per the report of Forth Consulting of 23 February 2019 as provided for in the scope of works for this complaint item.

Mr Glaisner's costing allowed $4,329.70 to drill and insert dowels to existing concrete; carpenter form up and strip step repair; concrete (25Mpa); pour concrete; waterproofing steps; supply tiles; tiling; and reinstate paving. The costings make no reference to the removal of steps or to reconstruct the steps as per the report of Forth Consulting of 23 February 2019 as provided for in the scope of works for this complaint item.
We prefer the costing provided by the owners as the builder's costing does not cover the scope of works for this complaint item including the removing the existing steps in their entirety. For similar reasons we reject the quote from ASR. We have, however, reduced the Trendsetter quote by $1,500 for the top coat base of the rendered wall as that was not provided for in the scope of works.
Subject to the further adjustment required as detailed below at [140] [142], we conclude that a fair and reasonable cost to complete the scope of works required to remedy complaint item 32 is $27,107 adjusted by a margin of 25% to $20,330.25 on the basis the owners conceded that they refused the builder access to the laundry steps (refer above at [23]).

Complaint item 33 - west garage wall - water ingress

The owners referred to the Trendsetter statement showing a cost of $358 to paint patch the garage ceiling.
Mr Glaisner's costing allowed $60 for a painter noting it had spare paint available to do the patch painting. At hearing Mr Lorian said whether its $60 or $100 for touch up, 'that is effective'.
The owners explained at hearing that the hole that was cut in the roof is about 60 centimetres square. On that basis, we prefer the costing provided by Mr Lorian. Subject to the further adjustment required as detailed below at [140] - [142], we conclude that a fair and reasonable cost to complete the scope of works to remedy complaint item 33 is $100 but adjusted by 25% on the basis that the owners will have to engage a third party contractor to complete the remedial works results in an amount of $125 for complaint item 33.

Complaint item 34 - pizza oven wall - water damage

The owners referred to the quote dated 1 February 2021 from ASR for $2,970 which includes 'reverse tanking' that was not provided for in the scope of works.
Mr Glaisner's costing allowed $60 for a painter noting it had spare paint available. At hearing Mr Lorian stated Wet Seal can do waterproofing at $55 per square metre. For this complaint item Mr Lorian estimated $100 for the waterproofing and allowed $60 for the painting, or a total costing for this complaint item of $160.
Based on the concession that Mr Wellstead for ASR made in relation to complaint item 35 (see below at [93] to [96]) we will reduce ASR's costing by 50% to exclude the reverse tanking leaving $1,485.
Subject to the further adjustment required as detailed below at [140] - [142], we conclude that a fair and reasonable cost to complete the scope of works to remedy complaint item 34 is $1,485.

Complaint item 35 – undercroft - water ingress, rising damp

The owners referred to the quote dated 1 February 2021 from ASR for $44,000 which provides for reverse tanking.
The builder's costing allowed $8,427.27 which included $4,000 for an alternate injection solution.
Mr Wellstead for ASR confirmed that he would need to strip all the render of the wall, replace the membrane and then re-render the wall to complete the procedure he quoted for including the reverse tanking. The Tribunal's scope of works does not provide for reverse tanking. Mr Wellstead conceded that his quote would need to be adjusted by 50% for the remedial works to exclude the reverse tanking. The reduced costing is therefore $22,000.
We do not accept the builder's costing as it provides for an alternate injection solution and does not cover the scope of work for this complaint item. In our view, subject to the further adjustment required as detailed below at [140] - [142], a fair and reasonable cost to complete the scope of works to remedy complaint item 35 is $22,000.

Complaint item 36 - kitchen and scullery - water ingress

The owners referred to the Trendsetter statement showing a cost of $4,076 to replace the flyscreen with a new screen, setup of mobile scaffolding and remove and re top coat efflorescence affected areas.
The builder's costing allowed $97.50 to take out the flyscreen and create drainage holes and to reinstate the flyscreen.
We do not accept the Trendsetter statement amount for this complaint item as the scope of works does not require the replacement of the flyscreen with a new screen or the setup of mobile scaffolding. Adjusting the builder's costing to allow a margin of 25%, as the owners will need to engage a third party contractor, subject to the further adjustment required as detailed below at [140] - [142], we conclude that that a fair and reasonable cost to complete the scope of works to remedy complaint item 36 is $121.87.

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

The owners referred to the Trendsetter statement showing a cost of $572 to re gasket sills to windows.
Mr Glaisner's costing allowed $67.50 clean and apply silicone for this complaint item.
In our view, the Trendsetter statement goes beyond sealing the gaps at the bottom of the window in the front lounge. Adjusting the builder's costing to allow a margin of 25%, as the owners will need to engage a third party contractor, subject to the further adjustment required as detailed below at [140] - [142], we conclude that a fair and reasonable cost to complete the scope of works to remedy complaint item 39 is $84.37.

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

The owners referred to the Trendsetter statement showing a cost of $10,580 which includes $2,000 for the supply of tiles.
Mr Glaisner's costing allowed $800 to remove and replace four tiles, cut and inject 'water stop' over three lineal meters.
We do not accept the builder's position that there are only four tiles to be removed and replaced (see the photographs in Exhibit 42 of the Tribunal's decision referred to in [1]). Similarly, we do not accept that $2,000 for the supply of tiles is required for this complaint item. We will therefore reduce the Trendsetter amount to $8,580. Subject to the further adjustment required as detailed below at [140] - [142], we conclude, that a fair and reasonable cost to complete the scope of works to remedy complaint item 42 is $8,580.

Complaint item 43 - master bedroom balcony - deterioration of glass balustrading

The owners referred to the Trendsetter statement showing a cost of $10,296 to remove the balustrade and reinstall the toughened glass panes at 12 millimetres.
Mr Glaisner's costing allowed no amount. Mr Lorian explained this is on the basis that Cooling Brothers Glass would replace the glass.
We do not accept the builder's position as no costing was provided for this complaint item. In our view, subject to the further adjustment required as detailed below at [140] - [142], a fair and reasonable cost to complete the scope of works to remedy complaint item 43 is $10,296.

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

The owners referred to a quote dated 26 May 2020 from Waterblade for $4,840 to repair three steps and spa, apply the ecofinish to match existing colour on the pool.
No costing was provided by the builder for this complaint item. At hearing, Mr Lorian stated that:
'[i]t is again an endless loop, and I would be happy to pay them [the owners] that money so I didn't have to stand there and go through it again with Dr Brooks, because he will never be happy on that one'.
In our view, subject to the further adjustment required as detailed below at [140] - [142], a fair and reasonable cost to complete the scope of works to remedy complaint item 45 is $4,840.

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

The owners referred to the quote from T A Conduit dated 11 June 2020 and stated the cost for this complaint item is part of the total cost under the heading of 'labour to install new equipment and tidy up existing install' for $605.
No costing was provided by the builder for this complaint item.
We accept that part of the $605 in the T. A. Conduit quote would cover the cost to remedy the water race flows by adjusting the plumbing as necessary. Therefore, subject to the further adjustment required as detailed below at [140] - [142], we conclude that a fair and reasonable cost to complete the scope of works to remedy complaint item 54, that is to remedy the water race flows by adjusting the plumbing as necessary to ensure an even flow is provided as designed would be $150.

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

The owners referred to the Trendsetter statement showing a cost of $4,219 which includes $1,073 for 'chemset vertical cracking'.
No costing was provided by the builder for this complaint item. Mr Lorian at hearing stated that Mr Glaisner did not see the 'blemish' and therefore did not provide a costing. However, Mr Lorian stated that the builder would fix such 'minor blemishes' as a matter of course.
We do not accept the amount allowed for 'chemset vertical cracking' is part of the scope of works. Therefore, in our view, subject to the further adjustment required as detailed below at [140] - [142], a fair and reasonable cost to complete the scope of the works to remedy complaint item 58 is $4,219 reduced by $1,073 or an amount of $3,146.

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

The owners referred to the Trendsetter statement showing a cost of $1,301 to patch wall and then paint 35m² of the western boundary wall with Dulux Acratex.
No costing was provided by the builder.
We accept the owners costing and therefore, in our view, subject to the further adjustment required as detailed below at [140] - [142], a fair and reasonable cost to complete the scope of the works to remedy complaint item 60 is $1,301.

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

The owners referred to the Trendsetter statement showing a cost of $4,376 to re texture all facades to wall and re topcoat all facades to wall, repaint wall of bedroom 4 and re render wall and repaint wall.
No costing was provided by the builder. Mr Lorian at hearing stated there are small cracks which can be filled and made to match to an acceptable level.
We do not accept the builder's position. We accept the owners' costing and therefore, in our view, subject to the further adjustment required as detailed below at [140] - [142], a fair and reasonable cost to complete the scope of the works to remedy complaint items 61, 63 and 64 is $4,376.

Complaint item 62 - rear balcony - staining on tiles on rear balcony

The owners referred to the Trendsetter statement showing a cost of $787 to professionally clean the tiles.
No costing was provided by the builder. At hearing Mr Lorian stated the builder would do the professional clean using diamond pads at a cost of $78.70.
We prefer the costing of the owners and therefore, subject to the further adjustment required as detailed below at [140] - [142], we conclude that a fair and reasonable cost to complete the scope of the works to remedy complaint item 62 is $787.

Costings experts

During the hearing the Tribunal telephoned Mr Agostino (Trendsetter) and Mr Wellstead (ASR) who provided costings for the owners. The Tribunal also telephoned Mr Glaisner (quantity surveyor) who provided costings for the builder. Mr Glaisner remained in the telephone conference while Mr Agostino and Mr Wellstead separately explained their costings. The parties had the opportunity to ask each of Mr Agostino, Mr Wellstead and Mr Glaisner questions in relation to their costings. We also asked questions of the costings experts. The following is a summary of that evidence.
Mr Agostino stated that he first attended the owners' property on 16 July 2020 to do costings and then went back to the property for a review in January/February 2021 before providing an updated costings of the various complaint items. Mr Agostino said he worked from the excel spreadsheet provided to him by the owners. The owners explained that the spreadsheet provided to Mr Agostino included the scope of works for each complaint item as set out in the Tribunal's decision (see above at [1]).[13] Mr Agostino said he received a copy of the reports from ASR and from Dr Zurhaar.
[13] ts 118, 11 March 2021.
In regards to scaffolding, Mr Agostino said the costing for scaffolding is a fixed amount for 90 days, regardless of whether the scaffolding is used for one hour, one week or 90 days. For complaint item 36, Mr Agostino stated that his costing used a single base (mobile) scaffold which is hired for a fixed price.
Mr Agostino explained that he costed each of the complaint items as if the complaint item was to be completed solely on its own.[14]
[14] ts 100, 11 March 2021.
We asked Mr Agostino to reconsider his costings and to update the costings to reflect the cost if the remedial works were undertaken together, as a project, rather than each complaint item separately. The owners filed Mr Agostino's updated costings with the Tribunal on 17 March 2021. The only changes made to costings were to reflect the Tribunal's order of 11 March 2021 which required Mr Agostino to exclude certain works (for example, the 'Cut out, chemset and install rods to crack in wall incl material supply' in each of complaint items 61, 63 and 64). There was no adjustment made on the basis that the remedial works would be carried out together, as one project.
Finally, Mr Agostino stated that he allowed a 25% margin in his costings which allowed for periods of disrupted work and discontinuous work.[15]
[15] ts 104, 11 March 2021.
Mr George Wellstead of ASR explained that he attended the owners' property to provide his costings. In preparing his costings, Mr Wellstead stated he did not have a copy of the Tribunal's decision (see above [1]) with the scope of works to be undertaken. Instead, Mr Wellstead stated that his costings are based on his assessment of the issues that he observed on site.
Finally, Mr Wellstead stated that he applied a 25% margin on his costings.
Mr Glaisner accepted that it was reasonable to adjust costings when the remedial works were done together, as one job. Mr Glaisner thought a margin of 25% was a bit high.[16]
[16] ts 109, 11 March 2021.
Mr Glaisner stated that he first prepared costings in September 2020 for the builder working from a Scott Schedule, drawings and a file of photographs provided to him by Mr Lorian. Mr Glaisner said he did not attend the owners' property. Mr Glaisner stated that he had not seen the full report from ASR but had seen Dr Zurhaar's report. Mr Glaisner confirmed that his costings did not include a margin.
Mr Glaisner said he and Mr Lorian sat down and had a talk about the 'job' and for a couple of the complaint items they worked out their own remedy, one of the complaint items being in regards to skirting around the basement. Mr Glaisner stated that he had not referred to the Tribunal's decision or its findings about the scope of work required (refer above [1]) in preparing his costings for the builder.[17]
[17] ts 110, 11 March 2021.
We find each Mr Agostino, Mr Wellstead and Mr Glaisner were qualified and experienced to provide costings evidence.
As Mr Wellstead's costings were made on his assessment of the issues that he observed on site, rather than on the scope of works set out in the Tribunal's decision (see above at [1]), we have preferred Mr Agostino's costings (the Trendsetter statement). In regards to Mr Glaisner, we have in most cases preferred the costings provided by Mr Agostino (the Trendsetter statement) as they reflect the scope of works and reflect a third party contractor cost. We have only accepted Mr Glaisner's costing, with other adjustments where we concluded that Mr Agostino's (Trendsetter statement) costing exceeded the scope of the works for the complaint items.

Conclusion on Issue 1 - monetary order

In determining what the amount of the monetary order should be, we have taken into consideration the evidence from the costings experts (set out above at [127] to [139]). We have accepted, in the main, the Trendsetter statement of costings for the remedial work to be undertaken (as per the Tribunal's scope of works). We have calculated the total amount for the work to remedy the complaint items, as set out above, to be $148,946 (rounded). We note this amount is significantly more than Mr Glaisner's total costing of $20,920 and Mr Lorian's statement at hearing that he would 'budget it at $50,000 to fix the house'.[18]
[18] ts 145, 11 March 2021.
We do not accept Mr Agostino's view that little or no adjustment is required to the costings provided by the Trendsetter statement if the remedial works can be done together, as one project. Consequently, we will adjust the amount of $148,946 by 10% on the basis that, in our view, the remedial works can be done together, as one project. This is supported by the owners' statement that they have a builder who will undertake all the remedial works at a fixed price.[19] In our view, to remedy the complaint items a fair and reasonable cost is $134,051 (rounded).
[19] Ts 4, 8 March 2021.
We will order that the builder pay to the owners $134,051 by way of a monetary order pursuant to s 36(1)(b) of the BSCRA Act. We will make the amount payable within 28 days of these orders.

Issue 2 - Should the owners be entitled to an order for costs for recovery of their costs?

The owners in their complaints (complaint item 49) to the Building Commissioner claimed costs of their experts' inspections and reports. In the Tribunal's decision (see above [1]) the Tribunal stated at [207] that it would consider the owners' application for costs and any submissions the builder wishes to make after it determined what BRO to make under s 36(1) of the BSCRA Act.
As set out above at [142], we have determined that the Tribunal make a monetary order requiring the builder to pay to the owners $134,051 within 28 days of the Tribunal making the order.
We now turn to consider the owners' application for costs.
It is useful to first set out how costs in relation to these proceedings are to be considered by the Tribunal.

Applicable principles

147 Section 87(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) directs that unless otherwise specified in the SAT Act, the relevant enabling Act or any other order of the Tribunal made pursuant to s 87(2) - s 87(6) of the SAT Act, the parties bear their own costs in a proceeding of the Tribunal. However, s 87(2) of the SAT Act confers a discretionary power on the Tribunal to make an order for the payment of all or any of the costs of another party, unless specified to the contrary in the relevant enabling Act. Section 49 of the BSCRA Act (the enabling Act in this proceeding) relevantly provides:

(1)Subject to this section, the Building Commissioner or the State Administrative Tribunal may make such orders for costs as they think fit in relation to proceedings arising from a building service complaint or a HBWC complaint.
…
(7)This section does not limit the powers of the State Administrative Tribunal under the State Administrative Tribunal Act 2004Part 4 Division 5.

Therefore, s 49 of the BSCRA Act, by conferring a broad unrestricted discretion on the Tribunal to award costs, appears to be a departure from s 87(1) of the SAT Act. This means that the Tribunal in considering a claim for costs made pursuant to s 49(1) of the BSCRA Act, is not required to start from the position that each party bears its own costs. However, having said that, it is well understood that costs do not follow the event at the Tribunal and the broad discretion conferred on the Tribunal is to be properly exercised by taking into account relevant considerations.

In Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 (Questdale) the following principles emerge as to cost applications:
(1)There is no presumption that a successful party is entitled to costs;
(2)The discretionary power is to be exercised judicially; that is not arbitrarily, capriciously or so as to frustrate the legislative intent;
(3)The power to award costs is to be exercised if it is fair and reasonable in all the circumstances of the case to do so;
(4)The onus is on the party seeking an order in its favour to establish that a favourable order ought to be made;
(5)The nature of the dispute is a relevant consideration in any application for costs;
(6)Every party to a proceeding before the Tribunal is taken to be cognisant of the objectives of the Tribunal as expressly provided for in s 9 of the SAT Act. It is therefore necessary for the applicant to establish that the respondent's conduct has impaired the attainment of the Tribunal's objectives to have the proceedings determined fairly and in accordance with the substantial merits, with as little formality an technicality as possible and in a way which minimises the costs to the parties; and
(7)The mere fact that a party ultimately fails on a contention advanced during the course of the hearing does not, in itself, signify that the party has acted inconsistently with the objectives set out in s 9 of the SAT Act.
The procedures of the Tribunal are designed to achieve the objectives prescribed by s 9 of the SAT Act. Where an order for costs is made by the Tribunal, the Tribunal's obligation to minimise the costs to parties will be reflected in the costs assessed by the Tribunal as recoverable. That approach reflects an expectation that parties will approach proceedings in a way that minimises costs of the proceeding: J & P Metals Pty Ltd and Shire of Dardanup[2006] WASAT 282 (S) at [38]. Therefore, an order for costs should be approached in a broad and relatively robust fashion: Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [No 2] [2008] WASAT 302 at [67] and Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S) at [49]. Even though fixing costs involves a relatively broad brush approach, the Tribunal must nevertheless be satisfied that the costs claimed are reasonable and not excessive in nature: Rae and Prima Homes Nominees Pty Ltd [2020] WASAT 24 at [69].
The factors relevant in exercising the discretion to award costs pursuant to s 87 of the SAT Act are equally relevant in the exercise of the discretion pursuant to s 49(1) of the BSCRA Act and were usefully identified in Medical Board of Western Australia and Kyi [2009] WASAT 22 at [73] [74] as follows:
… If a party has conducted itself in such a way as to unnecessarily prolong the hearing, has acted unreasonably or inappropriately in its conduct of the proceedings, has been capricious, or the proceedings in some other way constitute an abuse of process, then this may give rise to an exercise of the discretion to award costs. This encompasses a situation where proceedings should not have been maintained against a party because it is clearly untenable and no reasonable person would have believed they could be successful[.]
Thus, the Tribunal's discretion to award costs extends to ordering the payment of costs incurred unnecessarily by a failure of a party to act appropriately in a particular circumstance in the conduct of the proceedings. Considering the primary position of the Tribunal as a no costs jurisdiction, it is not sufficient merely to identify that a party may have conducted itself in a different manner and thereby reduced costs incurred; it will usually be necessary to show that the conduct of the party was unreasonable and unfairly caused the increased costs.
Finally, in Panegyres v Medical Board of Australia [2020] WASCA 58 at [415], Vaughan JA provided guidance on the minimum amount of information required by the Tribunal for it to be in a position to evaluate and assess a claim as to cost as follows:
... At the least this requires that the Tribunal be appropriately informed as to the work done and time taken as is claimed for and the rates which are said to apply to that work. The detail required in this respect is a matter for the Tribunal. It may take the form of an affidavit attaching the tax invoices as charged. Alternatively, the Tribunal may consider it appropriate to require a short form bill of costs[.]
We will apply the principles, as set out above, in considering the owners' application for costs.

Costs application

For the purposes of their costs application, the owners provided the Tribunal with the following list of expert costs supported by invoices:

Date

         Description[20]

         Amount

         17 November 2017

         Resiservices invoice 1711121 - Payment for practical completion and maintenance inspection

         $970

         7 December 2017

         Resiservices invoice 1711121 - Payment for final practical completion and maintenance inspection

         $450

         9 March 2019

         Resiservices invoice 190309 - Payment for defects report as per lawyer's instructions

         $1,860

         15 June 2020

         Yael K & Associates invoice 076-SAT - Project management (SAT related) despatching drawings and information, getting quotes, Site visit (SAT related) to assess scope of works

         $990

         30 June 2018

         Neptune Pools invoice 61132 [total $5,500] - Interim claim for consulting on swimming pool

         $5,000

         31 December 2018

         Neptune Pools invoice 61141 [total $1,755] - Site visits, reports phone and emails since 1/7

         $1,600

         22 September 2020

         Cal Stanley Swimming Pool consultant invoice 5413 – attendance at SAT hearing 15 and 16 September (11 hours)

         $1,705

         11 September 2020

         Pool Assist invoice S-7143 - Document swimming pool/spa operations requirements and problems

         $145

         19 March 2019

         All Surface Restorations invoice 2427 - Site visit - documenting, photographs, plans and rising report (17.7 hours)

         $2,530

         10 April 2019

         All Surface Restorations invoice 2446 - Reports additions and site inspection (4.5 hours)

         $643.50

         24 January 2020

         All Surface Restorations invoice 00002604 Efflorescence/calcification to rear steps report 23 January 2020 $429

         Not claimed

         28 July 2020

         All Surface Restorations invoice 000026668 Project time sheet for report from G Wellstead

         $1,633

         24 September 2020

         All Surface Restorations invoice 00002678 - 14 September 2020 Site inspection and hearing preparation (4 hours), SAT registration (1.5 hours) and SAT hearing 17 and 18 September 2020 (11.5 hours)

         $2,431

         11 March 2019

         Forth Consulting invoice 13594 - Review and issue of structural report for laundry stair water ingress review

         $676.50

         1 March 2020

         Forth Consulting Pty Ltd invoice 14596 - Works for expert evidence in SAT proceeding C Gooch Site inspection 20 January 2020 and issue report on 29 January 2020

         $1,237.50

         30 September 2020

         Forth Consulting Pty Ltd invoice 15428 - Mr C Gooch prepare for hearing (1 hour) and attend hearing on 15 September (3.5 hours)

         $1,856.25

         26 September 2018

         Hotchkin Hanly invoice 129568 Building dispute - Gransden Construction - Expert consultancy fee - Zedcon Scientific Services invoice 180801 (site attendance 23 July 2018 and preparing report 30 August 2018)

         $4,977.50

         7 March 2019

         Hotchkin Hanly invoice 131441 Building dispute - Gransden Construction - Expert consultancy fee - Zedcon Scientific Services invoice 190306 (Preparation of expert report dated 22 February 2019 with the addition of laboratory analysis of the pool grout requested by Dr Brooks at the last site inspection)

         $2,871

         30 January 2020

         Zedcon Scientific Services invoice 200128/3266 - Preparation of amended expert report dated 28 January 2020

         $935

         24 September 2020

         Zedcon Scientific Services invoice 200128/3460 – SAT preparation (2 hours) SAT hearing (10 hours)

         $5,610

         TOTAL

         $38,121.25

[20] The name of the entity where it first appears in the 'Description' column is shown in bold.

The reasons given by the owners for seeking costs in these proceedings may be summarised as follows:
(a)The dispute with the builder has been running about three and one half years. The builder only conceded many complaint items at the final hearing. Had the builder made those concessions earlier the owners would have been spared the grief and anguish of making a complaint to the Building Commissioner and then progressing it through the Tribunal. As a result of the builder's actions, the owners have incurred significant expert costs in the experts attending the hearing as well as in the preparation of reports.
(b)The majority of the owners' complaint items were upheld by the Tribunal (refer to the decision at [1]).
(c)The owners refute they blocked the builder from attending the property to carry out remedial works, apart from the laundry steps and grout issues where the builder's suggested remedy would not have addressed the problems.
(d)The builder maintained an adversarial stance against the owners. Because of this the owners had to provide the most qualified opinions to substantiate the owners' complaints. Upon raising the complaints with the builder the owners have got 'pushback' and disagreement from the builder.
The builder's position is that it would pay for the Resiservices (Mr Danne Forte) invoices for $970 and $450 (a total of $1,420) as they were engaged at the practical completion stage of the build as an independent person inspecting the state and condition of the property in November/December 2017. Mr Lorian stated that the builder accepted the defects listed by Resiservices in their report.[21] The builder's position may be summarised as follows:
[21] ts 139, 11 March 2021.
(a)The owners have continued to make exaggerated claims and have denied the builder access to the property to remedy the issues.
(b)It is inappropriate to make the builder pay for 'the stacking of the Tribunal with one-eyed witnesses of dubious professional integrity'.
(c)The owners engaged 'experts who had collectively hundreds of hours of access to compile extensive and largely inaccurate claims of defective workmanship'.
(d)Any award of costs to the owners will only exacerbate the 'already unbalanced processes'.
(e)The builder's expert, Mr Richard Machelle, was never given unfettered access to the property to assess the claims.
(f)The owners' motivation is to pursue the matter at huge costs rather than to allow the builder to remedy the complaint items. The owners' approach is a 'vendetta' rather than a commercial approach.
(g)The builder has not made any claim for expert witnesses, lawyers and others because that is part of the job in defending one's position.
(h)The expert reports, for example that of Dr Zurhaar, did not help the builder and the owners get the complaint items remedied. The expert reports were not necessary for the owners to get the builder to go back and fix things; they were used to have an argument about how to fix the defects.
(i)The owners refused to compromise and sought experts to support the owners' view that the builder is 'not competent'. The experts engaged by the owners are 'experts for hire'.
(j)The builder would fix many of the defects as a matter of goodwill if only the owners had a reasonable relationship with the builder, and not litigious relationship.

The nature of the dispute

The nature of the dispute is a relevant consideration to the Tribunal's exercise of its discretion to make an order for costs.
These proceedings concerned alleged faulty or unsatisfactory building work comprised of more than 60 complaints. At hearing, issues concerning the laundry steps, the feature stone column at the front of the house, flue pipes not adequately sealed, the water ingress and rising damp in the undercroft, and the swimming pool and spa were particularly contentious items. The experts had differing views on these issues as did the parties. The owners pointed to the builder not completing the remedial works for the past three and a half years as a reason for an order for costs in their favour, while the builder contends that the owners refuse to compromise and sought experts to support the owners' view that the builder is 'not competent' and that the experts engaged by the owners are 'experts for hire'.
The dispute did raise difficult technical issues about the swimming pool and spa including the sub-floor cleaning system as well as the spa. We find that it was open and appropriate for the builder to properly put forward its position supported by evidence. For example, in relation to the flue pipes not being adequately sealed, we find that it was open and appropriate for the builder to properly put forward its position supported by evidence. The fact that the builder was successful on the issue of flue pipes issue (complaint item 3) as well as some of the swimming pool and spa issues (complaint items 19, 38, 47, 55 and 56), supports a finding that the builder had a reasonable basis to challenge the owners' expert reports presented by the owners to complete the remedial works for those complaint items.

The builder's conduct

In exercising the Tribunal's discretion to consider making an order for costs, it is necessary to consider whether, and to what extent, the owners have established that the conduct of the builder impaired the attainment of the Tribunal's objectives: Questdale at [54]. One of the objectives of the Tribunal in s 9 of the SAT Act is to act speedily and with as little formality and technicality as is practicable, and to minimise the costs to the parties.
The Tribunal had occasion to change orders regarding the proceedings, for example extending the time for compliance with an order to file documents. In general, compliance with orders of the Tribunal assists the Tribunal to achieve its objective of acting speedily in the resolution of disputes and to minimise the costs to the parties.
Throughout the proceedings the builder protested that the owners exaggerated their complaints and have used a 'vendetta' style approach rather than a commercial approach by not allowing the builder to remedy the defects. The builder chose to only call Mr Richard Machell to give expert evidence and took aim at the owners asserting that the builder should not be required to pay for 'the stacking of the Tribunal with oneeyed witnesses of dubious professional integrity'.
On this occasion, we find the Tribunal was able to proceed to conclude the matter in accordance with its objectives as set out in s 9 of the SAT Act. In the circumstances, we do not find the builder acted unreasonably in the proceedings, apart from making statements, such as those set out in the previous paragraph, which we find were unnecessary and not helpful.

Exercise of discretion in these proceedings

In relation to the expert costs sought by the owners, we will only award costs on the basis that we relied on the expert evidence put forward by the owners in our determination of whether the remedial works have to be undertaken and what it would now cost to have the remedial works done.
In relation to Resiservices the reports prepared for practical completion are not costs incurred by the owners in respect of the proceedings before the Tribunal and we have therefore not considered the costs of $970 and $450. In relation to the other invoice from Resiservices for $1,860, we considered Mr Forte's expert evidence in relation to complaint item 3 (flue pipes), however we declined to make an order in respect of that complaint item. We preferred Mr Wellstead's expert evidence in relation to complaint item 4 (ceramic floor not sloping properly to floor waste) but we did rely on Mr Forte's expert evidence in relation to complaint item 7 (condensate pipe), and complaint item 24 (master bedroom wooden floor nearest kitchenette). In relation to complaint item 31 (drummy tiles) we accepted the expert evidence of Mr Forte along with that of Mr Wellstead. We will allow a portion of the invoice $1,860 in determining the costs award.
The invoice from Yael K & Associates for $990 did not refer to anything prepared in respect of the proceedings before the Tribunal. We therefore will not allow any amount in relation to the $990 claimed by the owners.
In relation to the invoices from Neptune Pools and Cal Stanley, we will not allow any amount of the $5,000 for the interim consultation. However, in relation to the other two invoices we will allow a portion of those invoices in determining the costs award. The reason for this is because we relied on Mr Stanley's expert evidence for complaint item 15 (pool temperature), complaint item 17 (water top up system), complaint item 30 (pool steppers), complaint item 45 (pool and spa finish of internal surfaces), and complaint item 54 (water races). For complaint items where we preferred the evidence of Dr Zurhaar to that of Mr Stanley we will adjust the costs. This applies in relation to complaint items 1 and 2 (pool tiles). Finally, we did not rely on Mr Stanley's evidence for complaint item 19 (heating of spa), and complaint item 55 (spa no sanitisation). Further, we will adjust the costs awarded as we do not accept that Mr Stanley was required to attend the hearing for all of the 11 hours (on 15 and 16 September 2021) claimed.
The invoice from Pool Assist for $145 did not refer to anything in respect of the proceedings before the Tribunal. We therefore will not allow any amount in relation to the $145 claimed by the owners.
In regards to the invoices from ASR, we relied on Mr Wellstead's expert evidence for complaint item 4 (master bedroom ceramic floor) only. For complaint item 31 (drummy tiles) we relied on both Mr Wellstead's and Mr Forte's expert evidence. For complaint item 34 (pizza wall oven water damage) and complaint item 35 (undercroft water ingress, rising damp) we accepted the evidence of both Mr Wellstead and Dr Zurhaar. In our view, it was not necessary to have both Dr Zurhaar and Mr Wellstead give evidence on the same complaint items and we will adjust the costs award to reflect this.
In regards to Forth Consulting we accepted Mr Gooch's expert evidence in relation to complaint item 32 (laundry steps). We only relied on the first report prepared by Mr Gooch. Therefore, we will not include the second report ($1,237.50) in our calculation of the costs to be awarded to the owners. We accept Mr Gooch was required to attend the hearing and to give evidence for three and a half hours.
Finally, in regards to Dr Zurhaar, we accepted his expert evidence for complaint item 13 (grout), complaint item 25 (master bedroom balcony), complaint item 27 (rear yard), complaint item 28 (master bedroom tiles), complaint item 29 (feature stone column at front of house), complaint item 42 (window between ground floor and alfresco areas no water-stop), and complaint item 43 (master bedroom balcony balustrading). We accepted both Dr Zurhaar's and Mr Wellstead's expert evidence for complaint item 35 (undercroft water ingress, rising damp) and we accepted the expert evidence of Dr Zurhaar and Mr Stanley for complaint items 1 and 2 (pool mosaic waterline tiles). We accepted Dr Zurhaar's report of 22 February 2019 and the update in 2020. We did not consider the reports before this date and will therefore not include any of those amounts in a costs award for the owners. We accept Dr Zurhaar was required to attend the hearing, however, as noted above, where both Dr Zurhaar and Mr Wellstead or where both Dr Zurhaar and Mr Stanley gave evidence on the same complaint items we will reduce the costs award to reflect this.

Conclusion on Issue 2 - costs

We are of the view that it is appropriate for the builder to be ordered to pay a portion of the owners' expert costs for the following two reasons. First, the builder was substantially unsuccessful against the owners in relation to the complaint items. Second, the owners were forced to pursue a final hearing in order to bring the litigation to a finality.
Taking a broad brush approach in a relatively robust fashion, we consider that a total amount of $12,000 ought to be recovered by the owners from the builder of their total expert costs (as set out in the table above at [154]). While this amount has been fixed in a robust manner, it results in a total costs award which is reasonable and not excessive in nature and, in our view, accords with the nature of the proceedings, the amount of time and effort required to properly prepare for and bring the proceedings to a conclusion, and is consistent with and reinforces the objectives and procedures of the Tribunal.
We will order that the builder pay to the owners $12,000 by way of costs pursuant to s 49 of the BSCRA Act. We will make the amount payable within 28 days of these orders.

Conclusion

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

Orders

Amended on 16 June 2021 pursuant to s 83(a) of the State Administrative Tribunal Act 2004 (WA)
The Tribunal orders:
1.Pursuant to s 36(1)(b) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), in respect of matters CC 1816 of 2019 and CC 278 of 2020, the respondent shall pay the applicants $134,051 within 28 days of this order.
2.Pursuant to s 49 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), in respect of matters CC 1816 of 2019 and CC 278 of 2020, the respondent shall pay to the applicants $12,000 within 28 days of this order.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R PETRUCCI, MEMBER
15 JUNE 2021

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Citations

Brooks and Gransden Building Company Pty Ltd [No 2] [2021] WASAT 86

Most Recent Citation

THE OWNERS OF 52 MILL POINT ROAD STRATA PLAN 62152 and HANSSEN PTY LTD [2021] WASAT 102

Cases Citing This Decision

11

BLACKWELL and BOOY [2025] WASAT 94

VOZZA and HA-DECGROUP PTY. LTD [2025] WASAT 83

GRIFFIN and SSB PTY LTD [2024] WASAT 137

Cases Cited

4

Statutory Material Cited

2

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

Sanders and Gemmill Homes Pty Ltd [2017] WASAT 41

TRENGOVE and CELEBRATION NOMINEES PTY LTD [2012] WASAT 65

Date	Description[20]	Amount
17 November 2017	Resiservices invoice 1711121 - Payment for practical completion and maintenance inspection	$970
7 December 2017	Resiservices invoice 1711121 - Payment for final practical completion and maintenance inspection	$450
9 March 2019	Resiservices invoice 190309 - Payment for defects report as per lawyer's instructions	$1,860
15 June 2020	Yael K & Associates invoice 076-SAT - Project management (SAT related) despatching drawings and information, getting quotes, Site visit (SAT related) to assess scope of works	$990
30 June 2018	Neptune Pools invoice 61132 [total $5,500] - Interim claim for consulting on swimming pool	$5,000
31 December 2018	Neptune Pools invoice 61141 [total $1,755] - Site visits, reports phone and emails since 1/7	$1,600
22 September 2020	Cal Stanley Swimming Pool consultant invoice 5413 – attendance at SAT hearing 15 and 16 September (11 hours)	$1,705
11 September 2020	Pool Assist invoice S-7143 - Document swimming pool/spa operations requirements and problems	$145
19 March 2019	All Surface Restorations invoice 2427 - Site visit - documenting, photographs, plans and rising report (17.7 hours)	$2,530
10 April 2019	All Surface Restorations invoice 2446 - Reports additions and site inspection (4.5 hours)	$643.50
24 January 2020	All Surface Restorations invoice 00002604 Efflorescence/calcification to rear steps report 23 January 2020 $429	Not claimed
28 July 2020	All Surface Restorations invoice 000026668 Project time sheet for report from G Wellstead	$1,633
24 September 2020	All Surface Restorations invoice 00002678 - 14 September 2020 Site inspection and hearing preparation (4 hours), SAT registration (1.5 hours) and SAT hearing 17 and 18 September 2020 (11.5 hours)	$2,431
11 March 2019	Forth Consulting invoice 13594 - Review and issue of structural report for laundry stair water ingress review	$676.50
1 March 2020	Forth Consulting Pty Ltd invoice 14596 - Works for expert evidence in SAT proceeding C Gooch Site inspection 20 January 2020 and issue report on 29 January 2020	$1,237.50
30 September 2020	Forth Consulting Pty Ltd invoice 15428 - Mr C Gooch prepare for hearing (1 hour) and attend hearing on 15 September (3.5 hours)	$1,856.25
26 September 2018	Hotchkin Hanly invoice 129568 Building dispute - Gransden Construction - Expert consultancy fee - Zedcon Scientific Services invoice 180801 (site attendance 23 July 2018 and preparing report 30 August 2018)	$4,977.50
7 March 2019	Hotchkin Hanly invoice 131441 Building dispute - Gransden Construction - Expert consultancy fee - Zedcon Scientific Services invoice 190306 (Preparation of expert report dated 22 February 2019 with the addition of laboratory analysis of the pool grout requested by Dr Brooks at the last site inspection)	$2,871
30 January 2020	Zedcon Scientific Services invoice 200128/3266 - Preparation of amended expert report dated 28 January 2020	$935
24 September 2020	Zedcon Scientific Services invoice 200128/3460 – SAT preparation (2 hours) SAT hearing (10 hours)	$5,610
TOTAL		$38,121.25