Building Corporation WA Pty Ltd T/As Giorgi Exclusive Homes and Cliff
[2012] WASAT 207
•16 OCTOBER 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)
CITATION: BUILDING CORPORATION WA PTY LTD T/AS GIORGI EXCLUSIVE HOMES and CLIFF [2012] WASAT 207
MEMBER: MR C RAYMOND (SENIOR MEMBER)
HEARD: 18 SEPTEMBER 2012
DELIVERED : 16 OCTOBER 2012
FILE NO/S: CC 751 of 2012
BETWEEN: BUILDING CORPORATION WA PTY LTD T/AS GIORGI EXCLUSIVE HOMES
Applicant
AND
SUZANNE CLIFF
LOU CLIFF
Respondents
Catchwords:
Building Services (Complaint Resolution and Administration) Act 2011 (WA) Application for leave to review Whether decision supported by weight of evidence Whether evidence supports decision to replace rather than to repair Whether Tribunal should have conducted inspection Effect of decision on alleged similar issue by Building Disputes Tribunal
Legislation:
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 58(2)
State Administrative Tribunal Act 2004 (WA), s 32(7)(a), s 77(2)
Result:
Leave to review refused
Category: B
Representation:
Counsel:
Applicant: Mr B Walpole (Acting as Agent)
Respondents : In Person
Solicitors:
Applicant: N/A
Respondents : N/A
Case(s) referred to in decision(s):
Content Living Pty Ltd and Roberts [2012] WASAT 194
Tangent Nominees Pty Ltd and Edwards & Anor [2005] WASAT 119
Thomas & Anor and Building Corporation WA Pty Ltd, Building Disputes Tribunal, 15 August 2012, (unreported)
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant applied under s 58(2) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) for the internal review of a decision made by the Tribunal on 19 April 2012, under which the applicant was required to remove and replace the respondents' kitchen benchtops and splashback.
Although the original grounds for review were unsatisfactory, the matter proceeded on the basis of the applicants' written submissions. These submissions raised a number of grounds based on: alleged insufficiency of evidence to support the Tribunal's findings; that the Tribunal's reasons failed to include findings on material questions of fact, referring to the evidence or other material on which those findings were based; and that the Tribunal had erred in not following the procedures adopted by the Building Disputes Tribunal in an allegedly similar case by conducting a view. On the application for leave the Tribunal found that:
1)a finding that the regulated building service had not been carried out in a proper and proficient manner was not supported by the evidence;
2)a finding that the regulated building service was faulty and unsatisfactory because the benchtops and splashback were not fit for purpose was clearly open on the evidence before the Tribunal;
3)although the criticism of the Tribunal's reasons in relation to the finding that the benchtops were not capable of being repaired was justified, it was clear from a reading of the reasons for decision as a whole that the Tribunal had in mind particular evidence which supported the finding so that the error was not material; and
4)the case before the Building Disputes Tribunal was of an entirely different nature; neither party had requested a view in this case and there was nothing to indicate that it was necessary.
The Tribunal concluded that, although an error had been demonstrated in relation to one aspect of the decision, that decision was supported by the further finding that the regulated building service was faulty and unsatisfactory so that there would be no substantial injustice if leave to review the decision were refused and the Tribunal ordered accordingly.
Introduction
A developer, described as Breaksea Developments, entered into a building contract with Building Corporation WA Pty Ltd, then trading as Buildwise Builders (Building Corporation WA), for the construction of seven residential dwellings in North Coogee. Building Corporation WA now trades as Giorgi Exclusive Homes. Mrs Suzanne Cliff and Mr Lou Cliff purchased one of the homes at No 48 Breaksea Drive. It had been unoccupied prior to them taking possession. Within a matter of a few months, Mr and Mrs Cliff noticed that the stone benchtops were marking badly and becoming discoloured. Mr and Mrs Cliff raised their concerns through the real estate agent, and Building Corporation WA arranged for Mr R Pinto, the owner of a firm trading as The Stone Doctor, to remedy the complaint. Mr Pinto used a machine to cutback the surface and apply a polish. However, according to Mr and Mrs Cliff, within a few days, circular brush marks became visible and the benchtops became prone to marking and staining even more easily than before.
Mr and Mrs Cliff were unsuccessful in many attempts to engage Building Corporation WA, which rejected all liability on the basis that it had never contracted with Mr and Mrs Cliff and that they were aware of the condition of the home when they purchased it from Breaksea Developments. Mr and Mrs Cliff commenced proceedings in the Building Commission and ultimately, the matter having been referred to this Tribunal, a decision was made in favour of Mr and Mrs Cliff requiring Building Corporation WA to replace the benchtops and splashback.
Building Corporation WA has applied for an internal review of the decision in accordance with the provisions of s 58(2) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BS(CRA) Act). Unless otherwise stated, all references to legislation in this decision are to the BS(CRA) Act. Specific reference to the BS(CRA) Act will be made only where the context requires.
The grounds of the application for review are of little assistance, but the submissions filed by Building Corporation WA raise the following issues.
The issues
1)Whether the finding that the building service was not carried out in a proper and proficient manner is supported by sufficient evidence.
2)Whether the decision that the building service was faulty and unsatisfactory is supported by sufficient evidence.
3)If either 1 or 2 is determined in the affirmative, was there sufficient evidence to support a conclusion that the benchtops could not be remedied, and were required to be replaced?
4)Should the Tribunal have conducted an inspection of the benchtops, and if it had, and in any event, does the decision in Thomas & Anor and Building Corporation WA Pty Ltd, Building Disputes Tribunal, 15 August 2012, (unreported) (Thomas) support a decision that the claim should be dismissed?
Each of these issues will be addressed in turn below but, before doing so, it is necessary to state the criteria for the grant of leave.
The criteria for the grant of leave
In order to obtain leave to review the decision, Building Corporation WA must show that the decision of the Tribunal was wrong or attended with sufficient doubt, such that if leave were not to be granted, Building Corporation WA would suffer a substantial injustice: see Content Living Pty Ltd and Roberts [2012] WASAT 194. These criteria are based on the principles set out in Tangent Nominees Pty Ltd and Edwards & Anor [2005] WASAT 119, which also reflect that the Tribunal has a broad discretion to have regard to other features which might require consideration on review in order to avoid a substantial injustice.
The issues for determination
The finding that the building service was not carried out in a proper and proficient manner
The Tribunal found that Building Corporation WA did not provide Breaksea Developments with any form of specific information about the care and maintenance required in respect of the kitchen benchtops which could then be passed on by Breaksea Developments or its agent to Mr and Mrs Cliff. The Tribunal found that it was inherently likely that Breaksea Developments would have included such specific information in the file provided to Mr and Mrs Cliff at handover of the home if Building Corporation WA had provided it. Further, that this omission created a risk that the purchaser might not exercise the degree of care said to be required with this particular type of kitchen benchtop and, as such, caused all, or substantially all, of the damage to the kitchen benchtops prior to Mr and Mrs Cliff obtaining specific information about care and maintenance direct from the supplier on 22 June 2011.
The Tribunal was aware that information had been provided at handover in a four page pamphlet. The Tribunal obviously did not consider that this constituted sufficiently specific care and maintenance information.
The transcript shows that Mrs Cliff was equivocal about the content of the information that had been provided to her in what she referred to as a little booklet or leaflet. Initially, she did suggest that the information provided was:
… just a cleaning and maintenance of benchtops basically. You know, 'wipe up any spills. Use hot soapy water'. (T:13, 11.04.12)
However, when asked if the information indicated what could not be used on the benchtops, Mrs Cliff stated that she was not sure without having the booklet in front of her. A little earlier she had stated:
It is basically the same as the other one you had a minute ago. (T:13, 11.04.12)
This was a reference to what is referred to as the specific information provided by the supplier on 24 June 2011, being the Ital Marble & Granite brochure. (Book of Documents (BOD) pages 16/17.)
In these circumstances, there is arguably no justification for the Tribunal having distinguished between the information contained in what was described as a four page booklet as being less detailed than the two page brochure subsequently obtained from the supplier.
There is, further, nothing to suggest that Mr and Mrs Cliff were ever less than careful with the benchtops. Mr Cliff did not give any evidence all evidence was from Mrs Cliff and her evidence was accepted in its entirety, save that no weight was given to reported expert advice which she repeated simply because those opinions could not be tested. This did not reflect adversely in any way on Mrs Cliff's evidence. Mrs Cliff referred, on a number of occasions, to the care which she took with the benchtops. She stated:
… I'm a very, very clean person, I clean up all the time, but after living in the house for a few months, staining it's not really coloured staining, it's a dull etched staining started appearing, and I was really concerned about it. (T3, 11.04.12)
It became common cause at the hearing of this leave application that Mr and Mrs Cliff had all necessary care and maintenance information available to them from the date of handover of possession of the home.
It is therefore evident that the finding that the building service was not carried out in a proper and proficient manner on the basis that inadequate information about care and maintenance had been provided cannot be sustained.
The finding that the building service was faulty or unsatisfactory
A remarkable feature of this case is that it was run by both parties without any expert witnesses being called to support their respective cases. This was a course which carried risks for both parties. If Mrs Cliff's evidence had not proved as satisfactory as it did, their claim may have failed. It was particularly risky for Building Corporation WA given the building inspector's adverse observations.
The Tribunal declined to place weight on any expert views expressed, whether hearsay or not, because none of the expert witnesses were available to be tested under crossexamination. That was an appropriate course, given the contradictory views expressed and contradictory statements between written and oral information provided by the supplier, Ital Marble & Granite. For example, the Ital Marble & Granite pamphlet emphasised that all products are sealed, and that the sealer would last approximately one to two years, at which time the stone benchtops would need to be resealed. Further, that to prevent staining, it is important that the stone is resealed with a quality penetrating sealer every one to two years. Yet both Mrs Cliff and the Building Commission's Inspector Martelli reported that Mr Cassella, a director of Ital Marble & Granite, advised that a sealer may have been applied to the surface prior to installation, but is not required (Building Commission report dated 19 December 2011 BOD 39 at paragraph 40; evidence of Mrs Cliff T:9, 11.04.12).
In supporting its finding that the benchtops were not fit for purpose and were therefore faulty and unsatisfactory, the Tribunal emphasised that it found Mr and Mrs Cliff to be honest people and their details, submissions and evidence consistent.
Building Corporation WA submits that the Tribunal gave disproportionate weight to the oral evidence on behalf of the applicants, and further, that there was no conclusive evidence regarding the cause of the staining to the benchtops.
The Tribunal had ample evidence from Mrs Cliff concerning the care which she took. The benchtops had not been subjected to any wear and tear through use prior to Mrs and Mrs Cliff taking possession of the residence. Etching or staining was noticed within a short time thereafter no more than a few months. Mrs Cliff was then aware of the maintenance information provided at handover and she described that this gave directions about care and maintenance of the benchtops, to wipe up any spills and to use hot soapy water (T:13, 11.04.12) and the need to be careful with the likes of vinegar, acidic materials or citrus (T:14, 11.04.12).
After Building Corporation WA had arranged for The Stone Doctor to repair the benchtops, they became even more prone to staining. Mrs Cliff took particular care thereafter, to the point of placing a cloth on the benchtops and even then, the cloth left staining on the benchtops (T:5, 11.04.12).
The Tribunal was unable to make any finding as to whether the benchtops had or had not been sealed or waxed prior to or upon installation or whether they needed to be, or whether they needed to be periodically resealed or rewaxed, because the evidence was inconclusive. However, if the kitchen benchtops were not sealed or waxed prior to or upon installation and they needed to be, the Tribunal considered that would be a further basis upon which to support the finding of the building service as faulty and unsatisfactory. On the other hand, if the benchtops were sealed or waxed prior to or upon installation, then the actual performance of the benchtops was held to be a further indication that the product was not suitable for use as a kitchen benchtop.
The above conclusion was clearly open to the Tribunal on the evidence which was before it.
Building Corporation WA also criticised the Tribunal for not examining the contents of the care and maintenance instructions for the benchtops provided to Mr and Mrs Cliff at handover of the home. It was asserted that this was a breach of s 32(7)(a) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), which provides:
The Tribunal
(a)is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in a proceeding[.]
At a directions hearing on 21 February 2012, the Tribunal made directions programming the matter to the final hearing on 11 April 2012. Those directions required the parties to file all documents on which they intended to rely at the hearing, and was obviously intended to meet the Tribunal's obligation under s 32(7)(a) of the SAT Act. If it became apparent during the hearing that any material had to be disclosed to the Tribunal to enable it to arrive at a proper determination, it would have been incumbent on the Tribunal to make arrangements for that to occur. In this instance, both Mrs Cliff and Mr Walpole, who appeared and gave evidence for Building Corporation WA, indicated that the information booklet could be provided to the Tribunal. In all the circumstances, as the Tribunal motivated its primary finding that the building work had not been carried out in a proper or proficient manner, in part, on the basis that the information provided by Building Corporation WA to the developer (who then passed it on to Mr and Mrs Cliff) was not sufficiently specific, arrangements should have been made for that document to be provided to the Tribunal. This is particularly so, as Mrs Cliff's recall of its contents were not detailed and she acknowledged she could not be sure about its contents (T:14, 11.04.12).
However, the Tribunal did not find it necessary to rely on the initial care and maintenance information to arrive at its secondary finding, discussed above, that the building service was faulty and unsatisfactory in that Building Corporation WA had used a product in the construction of the dwelling that was not suitable for its intended purpose. The effect of this will be considered further in the conclusion to these reasons for decision.
The finding that the benchtops could not be repaired
On this aspect of the matter, the Tribunal found as follows at [68]:
The Tribunal finds that the applicants' kitchen benchtops cannot now be repaired. None of the people expressing an opinion regarding possible repair of the applicants' kitchen benchtops had seen the particular benchtops except The Stone Doctor, who had further damaged it in his attempts to repair the surface.
Building Corporation WA had one attempt to attempt to repair the benchtops through engaging The Stone Doctor, who had further damaged it in the attempt.
Building Corporation WA submits that the Tribunal failed to cite any evidence or material as to why remedial work would be inadequate. Reference is made to s 77(2) of the SAT Act which requires that reasons which the Tribunal gives for a final decision include the Tribunal's findings on material questions of fact, referring to the evidence or other material on which those findings are based.
This criticism is justified, but I do not consider it to be material. When the reasons for decision are read as a whole, it is clear that the Tribunal discounted all expert evidence going either way on the issue. On Mr and Mrs Cliff's side, on the basis that Mr Smith of GC Smith & Co was not available to have his opinion tested that the only remedy was to replace the benchtops. On the side of Building Corporation WA, on the basis expressed that no one had examined the benchtops so that their opinions were no more than general statements of principle. Further, although the Tribunal did not draw this together as evidence relied upon to support the finding, it is clear that it had in mind the information sheet from Ital Marble & Granite (BOD page 16/17) as referred to at [51] of the written reasons of the decision, and, in particular, the statements that the stone tops, even though sealed, were still prone to staining and that damage to marble is often irreparable. And, of course, the evidence before the Tribunal demonstrated this when repair had been attempted and the result was that the benchtops were left more susceptible to damage.
Although the ultimate finding on this issue could therefore have been better expressed to rely on the evidence earlier set out in the reasons for decision, it is clear that, on the evidence before the Tribunal, the finding was open to it.
The failure to inspect the benchtops and the effect of the Thomas decision
Mr and Mrs Thomas also purchased their property from Breaksea Developments, and Building Corporation WA had constructed the residential dwelling on the land for Breaksea Developments. After taking possession, they noticed that there were scratches to the kitchen benchtops. A complaint was lodged with the Building Disputes Tribunal which retained jurisdiction to determine the dispute under the transitional provisions of the BS(CRA) Act.
An inspector of the then Builders Registration Board viewed and completed a report relating to the complaint. The report reflects that the inspector was directed to a particular position in the kitchen to view the scratches in the benchtops, and confirmed that, from this position, the scratches were visible with glancing light through the sliding door. The scratches were not visible from any other position.
Although Building Corporation WA denied liability, it consented to an order to remedy and rectification works were carried out. Mr and Mrs Thomas were dissatisfied and, as appears from the reasons for decision, wrote on 1 May 2011 that 'the stone is now so porous that any drop of water, liquid of any sort is staining the stone'. The reasons reflect that Building Corporation WA maintained it had satisfactorily rectified the complaint that the kitchen benchtops were badly scratched.
Mr and Mrs Thomas requested a reinspection, which was conducted. On this occasion, the inspector concluded that a casual observer would not detect the 'slight marks' of which Mr and Mrs Thomas complained.
Mr and Mrs Thomas requested that the Building Disputes Tribunal inspect the benchtops prior to the hearing. That course was followed. The Building Disputes Tribunal's reasons for decision reflect that, by bending down in an artificial manner, it was possible to detect very slight variations in the finish consistent with marks from a polishing instrument. No scratches, stains or other defects were visible, despite Mr and Mrs Thomas' best efforts to point them out from various angles. The complaint was dismissed.
Building Corporation WA submits that the Tribunal in this case should have followed the same course and inspected the benchtops. The following can be observed.
Contrary to Thomas, the report obtained from the Building Commissioner's inspector in this matter recorded that dull staining was visible on the benchtops in various locations.
Neither party requested that the Tribunal conduct an inspection.
The basis of defence put forward by Building Corporation WA was not one of denial that the staining was visible but that:
•the benchtops were fit for their intended purpose and were commonly used in this environment;
•there was no contract between Mr and Mrs Cliff and Building Corporation WA;
•Mr and Mrs Cliff purchased the house as an established home, with the benchtops installed for them to view, and could assess what they were purchasing;
•Building Corporation WA had sent information on how the stone should be cared for on an ongoing basis, which reflected that all stone tops were prone to staining by foods, liquids, ink and oils; and
•it was now over two years since the dwelling had been handed over to Mr and Mrs Cliff in June 2009: see letter 11 November 2011 BOD, page 36.
In these circumstances, it was not evident that a view by the Tribunal was required.
As the Building Disputes Tribunal pointed out in its reasons for decision, the complaint in Thomas was very different to the complaint in this matter. This involved a complaint about 'the condition and durability for everyday use of the kitchen benchtops' (which was how the issue was defined and recorded in the directions order made on 21 February 2012). The complaint before the Building Disputes Tribunal was defined as being that the kitchen benchtops were badly scratched.
I do not consider that the Tribunal erred in not holding a view. Thomas is of no assistance to Building Corporation WA insofar as this proposed review is concerned.
Conclusion
Having regard to the above findings, it is necessary to consider whether the decision of the Tribunal was wrong or attended with sufficient doubt, such that if leave were not to be granted, Building Corporation WA would suffer a substantial injustice.
It has been demonstrated in relation to the first finding that the Tribunal erred in concluding that the building service had not been carried out in a proper and proficient manner because insufficient care and maintenance information was provided. If that were the only basis for the decision, that would be sufficient to support the grant of leave to review the Tribunal's decision.
However, the Tribunal also found that the building service was faulty and unsatisfactory in that Building Corporation WA used a product in the construction of a dwelling, namely, the marghestone benchtops, that was not suitable for its intended purpose. That conclusion was clearly open to the Tribunal on the evidence before it.
No other error on the part of the Tribunal has been demonstrated, save that the reasons for decision could have been better expressed to make reference to the evidence referred to within the body of the reasons for decision to clearly reflect that it was relied on to support the finding that further attempts to repair the benchtops were not appropriate. For the reasons given above, the error is not material.
Thus, although the Tribunal's finding that the regulated building service had not been carried out in a proper and proficient manner was wrong, the finding that the regulated building service was faulty and unsatisfactory has not been impugned and, consequently, no substantial injustice would flow from a refusal of the grant of leave.
Order
The Tribunal will cause an order to issue as follows:
1.The application to review the decision of the Tribunal delivered on 19 April 2012 and published on 1 May 2012 is refused.
I certify that this and the preceding [50] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR C RAYMOND, SENIOR MEMBER
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