Brown and Brett - [2009] WASAT 85

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: BUILDERS' REGISTRATION ACT 1939 (WA)

CITATION: BROWN and BRETT [2009] WASAT 85

MEMBER: MS J HAWKINS (MEMBER)

HEARD: 15 JANUARY 2009, 27 JANUARY 2009 AND 4 FEBRUARY 2009

DELIVERED : 4 MAY 2009

FILE NO/S: CC 1402 of 2008

BETWEEN: IRENE LORRAINE BROWN
Applicant
AND
STEVEN GEORGE BRETT
Respondent

Catchwords:

Workmanship complaint - Tiler - Application for leave to review items dismissed by the Building Disputes Tribunal - Job incomplete - Informal procedures of Building Disputes Tribunal - Grounds for leave not established

Legislation:

Builders' Registration Act 1939 (WA), s 12(2), s 12A(3), s 36, s 37, s 41

Result:

The application for leave to review is dismissed

Category: B

Representation:

Counsel:

Applicant: Selfrepresented
Respondent: Selfrepresented

Solicitors:

Applicant: Self-represented
Respondent: Self-represented

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

J-Corp Pty Ltd and Ly [2006] WASAT 132
Metwally (No 2) v University of Wollongong [1985] HCA 28
Tangent Nominees Pty Ltd and Edwards [2005] WASAT 119
Tangent Nominees Pty Ltd and Edwards [2006] WASAT 243
Water Board v Moustakas (1988) 180 CLR 491
Watson v Wallington [1999] WADC 84

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

By this application, leave was sought to review a decision of the Building Disputes Tribunal published 27 August 2008.
The applicant sought leave in respect to nine items of complaint which had not been upheld by the Building Disputes Tribunal.
The matter involved a workmanship complaint concerning tiling the respondent had carried out for the applicant. The job to be performed by the respondent had not been completed as the applicant had prevented the respondent from doing so.
The application for leave concerned findings of the Building Disputes Tribunal in respect to various items of complaint.
The matter turns on its own facts.
This Tribunal examined the findings of the Building Disputes Tribunal in respect to each disputed item the evidence presented. The decision also involved an examination of the procedures adopted by the Building Disputes Tribunal.
The applicant failed to establish any basis for the grant of leave to review.

Introduction

Ms Irene Brown (applicant) seeks leave to review the decision of the Building Disputes Tribunal (BDT) published 27 August 2008 reflected in an Order to Remedy No 49/20009 (Order to Remedy) dated 5 August 2008 (BDT's decision).
The items of her complaint for which the applicant sought leave to review were the following:
•Item 3 - Vertical tile joints in shower recess
•Item 12 - Shower corner tiles
•Item 13 - Wall - shower
•Item 14 - Falls to bathroom floor
•Item 15 - Fitting of bath into recess
•Item 16 - Glue behind tiles
•Item 17 - No waterproofing membrane to shower floor
•Item 22 - Tiling to vent duct
•Extra Item - Hole in bathroom floor
The applicant had made a workmanship complaint to the BDT concerning tiling that the respondent had undertaken for her in respect to the renovation of a bathroom on the first floor of a property at 163 Flinders Avenue, Hillarys. The respondent had quoted to carryout tiling in a bathroom and a toilet. That quote was accepted by the applicant. The cost of the work to be completed was $3,165. The tiling work commenced but was not completed as the applicant did not wish the respondent to continue. To date, the applicant has only paid the respondent $200 of the work undertaken.
The applicant's complaint to the BDT was dated 6 April 2008. The complaint raised 26 items of poor workmanship.
The complaint was the subject of a hearing before the BDT on 5 August 2008. The BDT published their reasons for decision on the 27 August 2008. At the time the matter was heard before the BDT, respondent had not completed the tiling work which he had been contracted to undertake. It appears that the applicant had prevented the respondent from completing the work.
Out of the 26 complaints to the BDT, many items were agreed by the respondent. Those items agreed were Items 1, 2, 4, 5, 7, 8, 9, 10, 11, 21.
The applicant sought leave to review the decision of the BDT in respect to some of the items that were dismissed by the BDT as referred to above.
The matter was the subject of a hearing on 15 January 2009 and 27 January 2009. At the hearings both parties were selfrepresented. At the hearing on 15 January 2009, the respondent appeared by telephone as by that time he had relocated to Queensland. Unfortunately, due to the phone connection being poor, a large part of the hearing on 15 January 2009 took place in his absence.
As a result, a copy of the transcript of the hearing on the 15 January 2009 was forwarded to the respondent and the respondent was asked to advise if he wished to make any oral submissions. He advised that he wished to do so. As a result, the hearing was reconvened on 27 January 2009 to enable the respondent to make his oral submissions. Following the last day of hearing on 27 January 2009, the matter was the subject of further directions hearings as the parties were giving consideration to resolving the matter. However, as a result of a directions hearing on 4 February 2009, the matter was unresolved and the decision in respect to the application for leave was therefore reserved.
The information before the Tribunal at the hearing of the application for leave to review was as follows:
1)The information before the BDT as provided by the BDT on the 17 September 2008;
2)BDT's reasons for decision as published on 27 August 2008;
3)A copy of the transcript of the hearing held before the BDT on 5 August 2008;
4)The applicant's written submissions and documentation as filed 21 November 2008;
5)The respondent's written submissions and documentation as filed on 5 December 2008; and
6)The applicant's further documents as filed on 12 December 2008 and handed up during the hearings.

Applicable principles

Section 41 of the Builders' Registration Act 1939 (WA) (BR Act) provides that a party to proceedings before the BDT may apply to this Tribunal for a review of such a decision. Section 41(2) of the BR Act provides that such an application cannot be made unless the Tribunal grants leave to an applicant to do so.
The Tribunal therefore has a discretion to grant leave. To obtain leave it must be shown that:
a)the decision in respect of which leave is sought is wrong or at least attended with sufficient doubt to justify the grant of leave; or
b)that a substantial injustice would be done by leaving the decision unreversed.
See Tangent Nominees Pty Ltd and Edwards [2005] WASAT 119 (Tangent Nominees).
What constitutes a substantial injustice is dependant on the circumstances of each case. It may be sufficient to show that there is a significant question of law to be considered: see J-Corp Pty Ltd and Ly [2006] WASAT 132.
Therefore, the Tribunal will be slow to grant leave unless there is no discernable basis for the decision or where the rules of natural justice have been breached: see Tangent Nominees.

Grounds for leave

Although the applicant filed an application on or about 2 September 2008, it was later amended by the filing of an amended application on the 17 October 2008.
The grounds referred to in the amended application, filed 17 October 2008, were wide ranging and did not refer specifically to each item of the order to remedy. There appeared to be two grounds with various subgrounds. Those grounds stated in summary are as follows:
1)Decision made in respect to ... Order to Remedy is wrong and attended with sufficient doubt. Substantial injustice and unfairness would be done if decisions are not reversed;
•The BDT failed to ensure a comprehensive and accurate transcript was produced hencefore [sic] the transcript is unreliable and it would be a travesty to rely on it
•The BDT failed to correctly weight the evidence fairly and misconceived the respondent's evidence without supporting evidence
•The BDT did not proceed in an open and equitable fashion as required under the legislation …
•The BDT did not call the Board inspector in to give evidence even though BDT staff confirmed the presence of the inspector Gronow in hearing …
•The BDT decision was supportive of faulty substandard workmanship that is not fit for its purpose and to an accepted industry standard.
2)The BDT decision was supportive of the respondent for non compliance of the agreed contract of high quality standard of workmanship by stating 'as long as the finished work looks reasonably neat' it is acceptable …
•The BDT decision was unsound and did not take into consideration substandard workmanship is uninsurable.
•The BDT decision on the tiling workmanship has placed the human health and safety of the building in an unhealthy situation due to egress [sic] moisture to the building according to the BCA (which I presume is the Building Code of Australia).
•The BDT decision on the tiling workmanship has created a dangerous situation to the occupants due to increased risk to slipping and trippage [sic] according to the BCA.
•The BDT as a statutory Authority needs to review its Policies and Procedures and ensure all consumers are given protection from faulty and unsatisfactory workmanship as stated on their website ...
In addition to these lengthy grounds, the applicant filed 18 pages of written submissions. Those submissions were not, however, drafted in a way that were linked directly to the grounds filed by the applicant, nor were they referenced to each item of the order to remedy that were being challenged.
As a result, during the hearing of the matter the applicant was asked to address each item of the BDT's decision that dismissed parts of her complaint and to reformulate her submissions in respect to each of those items.
Accordingly, these reasons will address each of the items of complaint dismissed by the BDT and will be followed by addressing the grounds referred to in the applicant's amended application of 17 October 2008.

Submissions and consideration

Item 3 - Vertical tile joints in shower recess and Item 12 - Shower corner tiles

The applicant complained to the BDT that the vertical joints in the shower recess were not plumb and had uneven large gaps between the tiles.
The BDT's decision noted that the respondent had not completed this work and found that grouting would eliminate much of the visual irregularity. The BDT also referred to the building not being a new building and that the background wall substrate was not flat or even. The Building Registration Board's (BRB) inspector, in his report of the 3 June 2008, made reference to this issue. In that report, he stated:
The builder made comment that the background substrate was not flat or even and required significant work to bring it up to an acceptable standard. The builder did not believe that this was his responsibility. Where the wall substrate (plaster) had not been installed plumb and flat, these irregularities cannot be easily accommodated by tiling, thus resulting in the joint variation and lipping.
An examination of the transcript of the hearing before the BDT reveals that the relevant levels of the walls and floors became a live issue at an early stage before the BDT: see BDT (T:4) para 25 to para 45.
There was also evidence from the applicant that there was a problem with one wall slightly above the shower hob: see BDT (T:12) para 45; BDT (T:13) para 20.
The respondent also gave evidence in respect to the wall substrate: see BDT (T:40) para 35; BDT (T:42) para 5; BDT (T:60) para 30 to para 45.
The respondent also gave evidence on this issue throughout the hearing before the BDT. Unlike the BRB inspector, the BDT considered that as the job was not completed and that it was likely further grouting would resolve any irregularity, the complaint in respect to these items was dismissed. It commented on the age of the house in which the tiling was to be carried out and referred to the background substrate (walls) not being flat or even. It is appropriate to now set out the relevant findings of the BDT:
1.1Around the end of March 2008 the Complainant entered into an agreement with the Respondent to re-tile the bathroom and toilet of a two bedroom unit attached to her home. The quote was for $2,655 later amended to $3,165 for extra work, and dated 4 March 2008. In April the Complainant became concerned with the standard of work being done by the Respondent and eventually stopped the work.
1.2The Complainant then brought an action in this Tribunal on [sic] and on 27 May an inspection was carried out by the Builders Registration Board Inspector. The Complainant advised the Inspector that she did not want the Respondent back to complete the outstanding work.
1.3In evidence it came out that this was an older house of at least 15 years and furthermore what had apparently not been realised at the time of the inspection was that the floor slab for the level of the house had been laid flat without any lower level for the bathroom or shower. Accordingly it was not possible to screed the floors to get exact levels for the tiles on the floor. The Respondent had only been paid $200 of the contract amount and was happy to complete the job.
...
2.3Item 3: Vertical tile joints in shower recess - The Respondent had not completed this work. Grouting will eliminate much of the visual irregularity. Once the work is complete, then an assessment can be made to see if it is at fault. However the fact that this is not a new building means that the background substrate was not flat or even and any tiler would have to work with the walls as he found them, as was noted by the Inspector. The finding of the Inspector appeared therefore to be at odds with his previous comments, but nonetheless is a problem where an inspection has to be made of an unfinished job. The item was dismissed.
2.12Item 12: Shower corner tiles - This item is the same as Item 3 and the same reasons apply. The Respondent's final work can be assessed when complete, but working with an existing wall in an older house has to be taken into account before deciding whether the Respondent could or could not have done a better job with the existing conditions.
The applicant firstly relied upon the evidence of the BRB inspector. She noted that the BRB inspector had referred to the joints in the shower recess varying in width from 2.5 millimetres to 5.5 millimetres. She argued that the BDT themselves had accepted that the relevant width between tiles should be only 3 millimetres as evidenced by Order 5 of the order to remedy. Order 5 of the Order to Remedy stated:
Remedy wall and window reveal tiles so that the joint width between the tile edges is consistent in width and matches the 3 millimetre joint width between wall tiles.
In respect to the findings by the BDT concerning the substrate of the building, the applicant submitted that the BRB inspector did not consider there was a problem with the substrate of the building. She also pointed to information which she alleges was before the BDT, that other people she had to work on this job did not consider there was any problem with the building substrate being uneven. She maintained in effect that the evidence of the BRB inspector should have been preferred, as he had undertaken a site inspection whereas the BDT had not.
The applicant also suggested that the BDT should have arranged for the BRB inspector to appear and give evidence in person as she was inexperienced. She suggests that the BDT's website suggests that it will adopt procedures to accommodate the nature and complexity of the issues, and the experience of the parties. As a result, she argues that the BDT, not herself, should have required the BRB inspector to attend in person to give evidence. The applicant also submitted that it was unfair of the BDT to blame the structure of her house when for the most part during the hearing the BDT had not given an indication that this could be a basis for not finding against the respondent.
The issue is whether, in the circumstances, the applicant has established sufficient grounds to show that the BDT's reasons were wrong or at least attended with sufficient doubt to justify the grant of leave.
In this case, the BDT both in their written reasons and the oral reasons set out in the transcript of the hearing of the BDT dismissed the items in respect to the tiling of the shower. The basis for doing so was that the tiling had not been completed and that with further grouting the visual irregularity in respect to the tiling would be eliminated. It can be implied from that finding that, as a result of the job being incomplete, the BDT did not consider any poor or faulty workmanship had been established in respect to these items.
Although the BDT had not carried out a site inspection, they did have photographic evidence before them concerning these items of complaint. Further, there is no requirement under the BR Act for the BDT to carry out a site inspection. Nor did the applicant request the BDT to do so.
Nor is it a requirement under the BR Act for the BDT to arrange for the BRB inspector to attend in person to give evidence. In that regard, I note that the Notice of Hearing sent by the BDT to the parties stated as follows:
Evidence
The collection and presentation of evidence is the responsibility of the party who wishes to rely on that evidence. If you want the Builders Registration Board Inspector involved in the case to attend you must advise the Tribunal in writing.
The applicant did not allege she had made such a request in writing to the BDT. Nor is there any indication on an examination of the BDT documents that such a request was made.
Further, the BDT is not required to advise a party how to run their case. Although the BDT's website refers to it adopting practices to suit the level of experience of those appearing before it, this is simply to inform the public that in some cases it may adopt more formal procedures when the case warrants it.
As to the building substrate, I do not accept that the applicant was not afforded an opportunity to make relevant submissions on this issue. The transcript of the proceedings before the BDT at pages 30, 49 and 50 reveal that the applicant was given an opportunity to comment and give evidence on this issue. Further, this issue had been referred to in the BRB inspector's report of 3 June 2008. In addition, as previously stated, the BDT had evidence before it concerning the unevenness of the wall substrate.
As to the BDT's decision in respect to these items being inconsistent with the Order to Remedy, Order No 5 of the Order to Remedy was not a finding of the BDT as a result of determining the issue. Item 5 of the complaint was agreed by the respondent and it is clear that the order of the BDT in respect to this item simply reflects the wording of the action recommended by the BRB inspector as set out in his report dated 3 June 2008.
As this item was agreed and the BDT made no determination of the issue, I do not consider it reflects an inconsistency in the manner in which the BDT have reached their conclusions on the relevant width between tiles that should be adopted.
In conclusion, the findings made by the BDT in respect to these items were open to it on the evidence available to it and there has been no procedural error by the BDT.
For the reasons expressed above, therefore, I am not satisfied that any basis for leave to be granted has been made out in respect to these items.

Item 13 - Two tiles at top of wall in shower short of wall corner

The BDT's decision simply states that they agreed with the inspector that no action was recommended and so the complaint was dismissed.
The BRB inspector's report in respect to this item states as follows:
Inspector's observations and comments
The tiling to the southern wall has not been completed. When these tiles have been installed it is likely that they will cover the tiles installed on the eastern wall. The two tiles on the eastern wall at the top of the shower recess have been cut approximately 8mm short of the southern wall. The tiles are approximately 10 mm thick and with 3-4mm of adhesive the face of the tiles will cover this gap.
Although these two tiles are not assessed as faulty or unsatisfactory, they may have to be replaced when the adjacent feature vertical tile strip is remedied.
Action
No action required.
The applicant argued that industry standards warranted a much smaller gap.
Reliant on the BRB inspector's report, the BDT dismissed this item.
The BRB inspector, and hence the BDT, accepted that the two tiles on the eastern wall at the top of the shower have been cut 8 millimetres short. However, the BRB inspector suggests that due to the width of the tiles to be laid on the southern wall, and taking account of the width of the adhesive, this gap will be covered.
Again these reasons reflect the difficulty in bringing a complaint in respect to an uncompleted job.
The BDT have accepted the BRB inspector's assessment. The applicant did not provide any alternative evidence from a tiling expert to support her contention.
Accordingly, the BDT had evidence before it to support its decision in respect to this item of complaint.
As a result, I do not consider there is any basis to grant leave in respect to this item.

Item 14 - Falls to bathroom floor incorrect

The findings of the BDT in respect to this item are as follows:
As noted above the floor was level throughout this area. Accordingly the Respondent had to work with the levels as they were. To introduce screeding to the Bathroom floors would have meant a lip at the entrance from the adjoining rooms, which would not be acceptable for safety reasons. In the circumstances it did not appear from the evidence that the Respondent could do any better with the levels of the floor that he had to work with and the item was dismissed.
The applicant's submissions in respect to this item appears at para 24 para 31 of her written submissions. Her complaint in respect to the workmanship was that the falls to the bathroom floor were incorrect. At para 24, the applicant now contends that the BDT's findings referring to the concrete slab not having a step down, are not in accordance with acceptable industry standards. She refers to information she has obtained from the City of Joondalup, which she alleges suggests that second storey concrete slabs are not required to have a step down in wet areas.
The applicant conceded, however, that this information was not made available to the BDT when it heard the matter. Nor did the applicant provide any satisfactory reason why she had been unable to previously obtain such information. During her oral submissions, the applicant also attempted to lead new information in respect to the possibility that the respondent could have used a levelling compound to overcome the unevenness of the bathroom floor. This again was not information that had been placed before the BDT. The applicant suggests that despite her not seeking to lead any evidence in respect to the use of a levelling compound before the BDT, this alternative was something the BDT, as a specialist tribunal, should have considered when reaching its conclusions.
Except in the most exceptional circumstances, a party is bound by the conduct of his or her case at trial. See Metwally (No 2) vUniversity of Wollongong [1985] HCA 28 at 483; Water Board v Moustakas (1988) 180 CLR 491 at 497 - 498.
The evidence concerning whether second storey concrete slabs are required to have a step down or whether a levelling compound was an option available to the respondent was not evidence that was before the BDT at the time of the hearing. Therefore, it was not taken into consideration by the BDT when it decided the matter. To allow such further evidence on a leave application would go against the strong policy referred to above and the BDT's decision cannot be adjudged as being in error as a result of this new information.
Nor was it necessary, in my view, for the BDT to raise any issue as to the use of a levelling compound especially where such an issue had not been raised by the BRB inspector nor where such evidence was not raised by the applicant.
The applicant unfortunately appears to have been under a misapprehension as to the BDT's role. Although it adopts procedures which are relatively informal it is not the function of the BDT to run a party's case for them. It is still necessary for a party to properly prepare and place all relevant material upon which they intend to rely before the BDT. This is made plain in the information provided to the parties with the Notice of Hearing.
In respect to this item, the BDT had evidence before it that the floor of the bathroom floor was level: see BDT (T:36) para 45 to para 50; BDT (T:37) para 20 to para 25; BDT (T:39) para 5. It had no evidence that any alternative method was available to the respondent. As a result, the BDT did not uphold this workmanship complaint.
Accordingly, I consider that the finding made by the BDT in respect to this item was open to it upon the available evidence and there is no basis for granting leave in respect to this item.

Item 15 - Fitting of bath into recess

The BDT's findings in respect to this item were as follows:
The Respondent was required to tile each wall with very little leeway available to him. The fitting of the bath was not his responsibility, nor its purchase. In the end the only action possible requires the Complainant to ground the edges of the bath so that any force is not exerted on the tiles. There was no complaint about the actual tiling and accordingly no action is required by the Respondent.
The applicant submitted, however, that the respondent was aware of the size of the bath and suggested to the BDT that the reason the bath did not fit was due to the amount of adhesive used by the respondent. She did not present any expert evidence, however, to support that contention. Nor did the BRB inspector's report support that submission. Indeed, there was an admission by the applicant at the hearing that she did not know what was under the tiles: see BDT (T:54) para 1.
On an examination of the BDT transcript, there was no evidence before the BDT that the respondent was made aware of the exact size of the bath. There is mention of where the bath was going to fit and an acknowledgement that after the tiling had been done the respondent was aware that the bath would be a tight fit.
Again, it was open for the BDT to conclude as it did. For the reasons expressed above, there is no basis to find the BDT had erred in respect to this item.

Item 16 - Not enough glue behind tiles

The BDT dismissed this complaint reliant upon the BRB inspector's report and the lack of evidence presented on this issue by the applicant.
The BDT's inspector's report recommended no action be taken in respect to this issue. In his report it states:
Inspection of the wall tiles found that the adhesive bed thickness to be approximately 2mm thick and no loss of adhesion was evident when numerous tiles were tested by knuckle rapping.
In her oral submissions to this Tribunal, the applicant complained that the BRB inspector had not used any instruments to come to that conclusion. From an examination of the transcript it does not appear that this submission was made to the BDT at the hearing before them. Nor did the applicant provide any other evidence to support this complaint.
The conclusions reached by the BDT were therefore clearly open upon the evidence available to it. I do not consider, therefore, that any basis for the grant of leave has been made out in respect to this item.

Item 17 - No waterproofing membrane to shower floor

This item was also dismissed by the BDT who found as follows:
There was a further allegation that there was no waterproofing membrane installed. To establish this allegation would have required the removal of a number of tiles. No such evidence was presented and the Respondent insisted there was a membrane. Accordingly … the complaint as to the lack of membrane is dismissed.
The BDT's inspector's report, although suggesting that the shower hob had not been sealed, does suggest that the shower floor may have been sealed. In the BDT's inspector's report, under the action recommended it states as follows:
Remedy shower recess so that the entire enclosed shower area, including hob is waterproofed …
There was also evidence from the respondent given at the hearing before the BDT that the shower base had been sealed with a waterproof membrane. At page 16 of the BDT transcript, the respondent stated:
Yeah, waterproofing membrane, the whole floor, 200 mil high, in the … the water closet as well as shower base, up the internal 2.4 high, the whole floor as well over that whole concrete slab, the existing slab in the bathroom.
Reliant upon the report of the BRB inspector, the applicant argued that the BDT erred as the BRB inspector found that there was no membrane to the shower base.
It is clear, however, on a close examination of the BDT's inspector's report that the BRB inspector was suggesting that the waterproof membrane had not been applied to the hob and that the work was defective because the membrane should be applied in a continuous manner. Further, the BDT rejected this item because the applicant had not removed any of the files to prove that a waterproofed membrane had not been applied to the shower floor. The BDT was simply being asked to consider whether a waterproofing membrane had been applied to the shower floor and faced with a lack of evidence on this issue it was open for the BDT to reach the conclusion it did.
Accordingly, I do not consider the applicant has established any basis for a grant of leave in respect to this item.

Item 22 - Tiling to vent duct

In respect to this item, the applicant was concerned in respect to the manner in which the tiles were cut and laid. The BRB inspector had suggested that this item be remedied.
Despite this, the BDT found as follows:
There is a timber vent duct. The Respondent did not cover all of the timber panelling to enable future maintenance of the duct to be carried out. We accept this is a valid attitude and so long as the finished work looks reasonably neat then the complaint at this stage must be dismissed. Again it is noted that the Respondent has not yet completed his work and the time for an assessment of possibly minor faults needs to be done at the stage of completion of all work.
The BDT transcript reveals that the respondent had laid tiles upon the duct as he considered it would be visually pleasing. In addition to evidence given by the respondent, the BDT also had a number of photographs in respect to this item.
Again, like Item 3 and Item 12, the BDT considered that as the job was not complete it was not possible to make a final assessment of the work performed. As previously stated, it can be implied from such a finding that the BDT did not consider at that stage any basis had been made out in respect to this item of poor or faulty workmanship.
Although the reasons given by the BDT in respect to this item could have been more fulsome in order to explain this implication, I am not satisfied that in the circumstances this constitutes an error or gives rise to a basis upon which leave should be granted.
This ground is therefore dismissed.

Extra item - Hole in bathroom floor

The BDT's reason in respect to this item stated as follows:
Extra Item - The Complainant did raise one additional item with respect to a hole in the floor of one tile square next to the bath. Originally it appears that this hole had been the source of leaking when the original section of building had been installed. It is possible the hole had been intended for some drainage item but then the plans had been altered. The Respondent was not responsible for fixing this matter, but nonetheless filled the hole with builder's mud and placed a tile on top. No evidence had come to light of any leaking. Nonetheless the Complainant had torn up the tile and objected that the work had not been professionally fixed. While she had to make a complaint under the Act by first giving notice to the Respondent, before it can be brought before the Tribunal, nonetheless it is pointed out at this stage that this is not a tiler's responsibility unless specifically asked to do the work and where he has covered over the hole then a complaint can only be justified if the floor at some time in the future date again leaks.
The applicant's submissions in respect to this issue dealt with why she considered the hole had not been adequately waterproofed. Her submissions, however, did not address the issue of whether the Tribunal had any jurisdiction to deal with this item.
The BDT's reasons, although not as clear as they might have been, did make reference to an applicant needing to give notice to a respondent of a complaint before such a complaint can be bought before the BDT. The BDT made comments in respect to this item but did not make any specific orders.
The comments of the BDT indicate that they did not consider they had jurisdiction to deal with this item because the prerequisite notice of this complaint had not been given by the applicant to the respondent.
Section 12(2) of the BR Act states as follows:
A complainant under subsection (1) or (1a) cannot be made before the complainant has given to the other party a preliminary notice under subsection (3).
The requirement of a preliminary notice to be given pursuant to s 12A(3) of the BR Act prior to an application being made to the BDT is an essential condition of the existence of jurisdiction. If such notice is not given, the BDT cannot hear a matter; see Tangent Nominees Pty Ltd and Edwards [2006] WASAT 243.
So in this case although the BDT heard some argument from the applicant in respect to this matter it ultimately did not make any orders concerning this issue, as it is clear it considered it did not have jurisdiction to do so.
As a result, I do not consider that any grounds have been made out in respect to this item and it is dismissed.

Grounds raised in the later amended application

In the later amended application filed on 17 October 2008, the applicant has raised a number of general grounds which I will deal with as follows:
•Transcript - the applicant has complained that an incomplete transcript was provided by the BDT. This ground was not pursued during the applicant's oral or written submissions and as a result I do not consider there is any basis to the alleged ground.
•Failure to correctly weigh the evidence - simply because BDT preferred in some instances the evidence of the respondent in respect to certain items of complaint over and above that of the applicant's or the BRB's inspector does not necessarily give rise to an error. As long as the basis upon which the BDT reached its conclusions were made clear in its reasoning and the decision reached was open to it upon the evidence available then no error arises. Accordingly, this ground is dismissed.
•The BDT did not proceed in an open and equitable fashion - to some extent the applicant's written submissions touched on this ground. Upon reading the transcript it is clear that the BDT gave the applicant an opportunity to present her case. Section 36 and s 37 of the BR Act make clear that the BDT may adopt informal procedures in hearings before it.
•As such, a 'nitpicking' analysis should not be undertaken when assessing how such hearings are conducted.
In Watson v Wallington [1999] WADC 84, LA Jackson DCJ stated:
It is I think important when dealing with a tribunal such as the Committee [now Tribunal] to recognise that its very informality can result in what would in a court of law be described as irregularities properly corrected on appeal. To take the same rigid approach with respect to the Committee's hearings would I think be to frustrate the legislation. It should, in my opinion, only be in cases where there has been a clear failure by the Committee to act in accordance with its own legislation … nit picking analysis of the proceedings before the Board could well result in some criticisms of its procedures …
Bearing in mind such comments, I do not consider that anything has been raised by the applicant which suggests she was not given the opportunity to present her case or to be heard. I will therefore dismiss this ground.
•The BDT did not call the Board inspector - the applicant considered that as she was not experienced the BDT should have taken steps to ensure that the BRB inspector be present to give evidence in person.
Although the BDT is able to adopt informal procedures there is no requirement for the BDT to arrange for any witness upon whom a party relies to be present unless a party seeks to issue a witness summons. There is no indication that such a request was made by the applicant to the BDT. As previously referred to in this decision, if a party requires the presence of the BRB inspector, they are required to give notice in writing to the BDT. This was not done by the applicant. For these reasons and those previously expressed, this ground is dismissed.
•The BDT decision was supportive of faulty substandard workmanship that is not fit for the purpose and to an accepted industry standard - to some extent this ground was supported by the applicant's written submissions. The extensive written submissions concerning industry standards and the work not being 'fit for the purpose' were not made by the applicant to the BDT. The applicant's written submissions sought to raise new evidence as to relevant industry standards which were also not put before the BDT. As stated previously in these reasons, the BDT cannot be said to have fallen into error where evidence that was available to the applicant but not placed before the BDT is now sought to be relied upon. This ground is therefore dismissed.
•The BDT decision did not take into account the work was uninsurable - The BDT decision placed the health and safety of the building in an unhealthy situation … according to the Building Code of Australia - The BDT … has created a dangerous situation to occupants due to increased risk to slipping ... according to the BCA … - again these submissions were not put to the BDT nor was any evidence raised in respect to these allegations. For the same reasons expressed immediately above, the BDT cannot be said to have fallen into error in such circumstances. This ground is therefore dismissed.
•The BDT … needs to review its Policies and Procedures and ensure all consumers are given protection from faulty and unsatisfactory workmanship … - this clearly is not a ground that is sustainable. It appears to be more of a statement by the applicant as to the manner in which the BDT should operate. It raises no complaint in respect to any part of BDT's decision and as such is dismissed.
As the applicant has not made out any basis for a grant of leave, the only order that I shall make is that the application is dismissed.

Order

The application for leave to review the decision of the Building Disputes Tribunal published on 27 August 2008 is dismissed.

I certify that this and the preceding [95] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS J HAWKINS, MEMBER