CAIRNES and VENTURA HOME GROUP PTY LTD

[2024] WASAT 111

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

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

CITATION:   CAIRNES and VENTURA HOME GROUP PTY LTD [2024] WASAT 111

MEMBER:   MS N OLDFIELD, MEMBER

MR J D ORR, SESSIONAL MEMBER

HEARD:   30 AUGUST-1 SEPTEMBER 2023, 12-14 MARCH 2024 AND 2-3 MAY 2024 AND WRITTEN SUBMISSIONS FILED 8 JULY 2024 AND 29 JULY 2024

DELIVERED          :   27 SEPTEMBER 2024

FILE NO/S:   CC 976 of 2020

CC 1588 of 2020

CC 196 of 2021

CC 38 of 2022

CC 39 of 2022

BETWEEN:   ROBYN CAIRNES

Applicant

AND

VENTURA HOME GROUP PTY LTD

Respondent

Catchwords:

Building dispute - Failure to comply with building remedy order - Revocation of works order - Substitution with a monetary order - Building service complaint - Whether there was a failure to carry out a building service in a proper and proficient manner or the works were fault or unsatisfactory - Monetary order - Compensation - Failure to mitigate - Turns on own facts

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 11(1)(d), s 36(1), s 36(1)(a), s 36(1)(b), s 36(1)(c), s 38(1), s 51

Result:

Applications partly successful

Category:    B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	Mr A W Buchan

Solicitors:

Applicant	:	N/A
Respondent	:	Hotchkin Hanly

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

Gemmill Homes Pty Ltd v Sanders [2018] WASC 179

Hippydaze Pty Ltd and Mener Group Pty Ltd [2019] WASAT 92

Table of Contents

Introduction

Issues

Preliminary findings

Did Ventura Homes comply with the 2020 BRO?

CC 976/2020 - Item 2A - main bathroom

CC 976/2020 - Item 2B - ensuite bathroom

CC 976/2020 - Item 2C - laundry floor

CC 976/2020 - Item 4 - failure to make good

Floor gradients

Floor wastes

Main bathroom vanity unit

Were the building works proper and proficient or faulty or unsatisfactory?

CC 1588/2020 - Item 1 - main bathroom concrete slab

CC 1588/2020 - Item 2 - main bathroom vapour barrier

CC 1588/2020 - Item 3 - termite treatment

CC 1588/2020 - Item 4 - main bathroom bath

CC 196/2021 - Item 1 - mould contamination of house

The experts' evidence

Our thoughts on the expert evidence

Evidence regarding moisture

Conclusions

CC 196/2021 - Item 2 - main toilet

CC 38/2022 - Item 1 - inground stormwater drainage system

CC 38/2022 - Items 1A and 1B - inground stormwater pipes

CC 38/2022 - Item 1C - soak well north

CC 38/2022 - Item 1D - silt sumps

CC 38/2022 - Item 1E - silt trap

CC 38/2022 - Item 2 - garage slab

CC 38/2022 - Item 3 - educt vent pipe

CC 38/2022 - Item 4 - disconnector gully north wall

CC 38/2022 - Item 5 - mould in garage

CC 39/2022 - Item 1 - bath

CC 39/2022 - Item 2 - plastering

CC 39/2022 - Item 3 - ensuite floor tiling

CC 39/2022 - Items 4, 5 and 6 - boundary retaining wall

CC 39/2022 - Item 7 - dining room

CC 39/2022 - Item 8 - finished height of slab

What building remedy orders should be made?

Main bathroom

Ensuite bathroom

Dining room

External areas

Stormwater pipes

Silt sumps

Educt vent pipe

House (mould)

Ms Cairnes' evidence

Basis for awarding compensation

Cross-contamination

Delayed remediation

Calculation of the amount

Conclusion

Orders

CC 976/2020

CC 1588/2020

CC 196/2021

CC 38/2022

CC 39/2022

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1. The applicant Ms Cairnes owned a house which had been constructed by the respondent Ventura Home Group Pty Ltd (Ventura Homes).  Ms Cairnes complained of multiple building defects, including inadequate waterproofing in several areas which she said had caused widespread mould growth.  Ms Cairnes claimed the cost of repairs and compensation for loss caused by the defects. 

2. These proceedings comprise five separate but related building service complaints which were heard together:

   (a)Ms Cairnes claimed Ventura Homes had not complied with a 2020 Tribunal order for the performance of repairs. The application was to replace those orders with an order for the payment of money pursuant to s 51 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act).  This was matter CC 976/2020.

   (b)The remaining matters involved new complaints of defective building works which were made by Ms Cairnes to the Building Commissioner and then referred to the Tribunal pursuant to s 11(1)(d) of the BSCRA Act. These were matters CC 1588/2020, CC 196/2021, CC 38/2022 and CC 39/2022.

Issues

1. In relation to the complaint relating to the Tribunal orders made in 2020, the issues to be determined were:

   (a)Did Ventura Homes comply with the building remedy order of the Tribunal dated 16 July 2020 (the 2020 BRO)?

   (b)If the answer to (a) was 'no':

   (i)Should the Tribunal revoke the 2020 BRO and make a monetary order instead?

   (ii)What work was done to carry out or complete the works required by the 2020 BRO, was that work reasonable and necessary and what was the cost?

   (iii)Had Ms Cairnes incurred loss or damage by reason of the failure to comply with the 2020 BRO, and if so, what sum would be appropriate compensation?

2. In relation to each new item of complaint, the issues to be determined were:

   (a)Was the building work carried out in a manner which was not proper or proficient or which was faulty or unsatisfactory?

   (b)If the answer to (a) was 'yes':

   (i)What was done to remedy the defective work, was that work reasonable and necessary and what was the cost?

   (ii)Had Ms Cairnes incurred loss or damage by reason of the defective building work, and if so, what sum would be appropriate compensation?

Preliminary findings

1. The parties agreed and we are satisfied that:

   (a)Ventura Homes constructed the relevant house and the notice of completion was lodged on 4 March 2016.

   (b)Ms Cairnes became the registered proprietor of the house on or about 31 May 2016.

   (c)Ms Cairnes sold the house and from 29 January 2024 was no longer the registered proprietor. 

2. It is not in dispute, and we are satisfied, Ventura Homes carried out a regulated building service in relation to all items of complaint. Therefore, the Tribunal has jurisdiction to consider the items of complaint pursuant to the provisions of the BSCRA Act.

3. It is well recognised (but important to note), the Tribunal only has jurisdiction to deal with a building complaint referred to it by the Building Commissioner.  No complaint outside of the items of complaint referred by the Building Commissioner could be the subject of Tribunal orders.

4. It was not disputed by the parties and we are satisfied, Ms Cairnes' sale of the house meant she was no longer able to maintain claims that Ventura Homes be ordered to perform repair work or pay for the anticipated cost of future repair work pursuant to s 36(1)(a) or s 36(1)(b) of the BSCRA Act.

5. It was not disputed and we are satisfied the Tribunal retained the power to determine:

   (a)whether Ventura Homes had failed to comply with the 2020 BRO;

   (b)if the building works the subject of the 'new' complaints had not been carried out in a proper and proficient manner or were faulty or unsatisfactory; and

   (c)if the Tribunal were satisfied of the matters described in (a) or (b):

   (i)make a monetary order to reimburse the cost of necessary and reasonable repairs undertaken by Ms Cairnes prior to the sale of the house (s 36(1)(b) BSCRA Act); and

   (ii)award compensation if Ms Cairnes had prior to the sale incurred compensable loss or damage by reason of the building works specified in a complaint item not having been carried out in a proper and proficient manner or being faulty or unsatisfactory (s 36(1)(c) BSCRA Act).

6. We consider it most convenient to consider the adequacy (or otherwise) of building work in relation to each item of complaint.

7. However, repair works in some locations appear to have addressed multiple items of complaint simultaneously.  Accordingly, we will consider appropriate remedy orders according to location.

Did Ventura Homes comply with the 2020 BRO?

CC 976/2020 - Item 2A - main bathroom

1. Complaint item 2A in relation to the main bathroom stated:[1]

   Respondent remediated shower under SAT Orders in August 2020.

   Respondent failed to utilise methods to prevent mould cross contamination.

   Respondent has failed to prevent water from penetrating the sub­structure and failed to comply with BCA Part 2.2, 2.4.

   Shower frame installation does not comply with AS3740 Figure 3.10(a) and 3.18.2.1(a).

   [1] Exhibit 1 page 1. 

2. The 2020 BRO stated that pursuant to s 36(1) of the BSCRA Act Ventura Homes was to:[2]

   [2] Exhibit 1, pages 7 - 8. 

   (i)remove the shower screen and door and store for reuse;

   (ii)remove the vanity unit and store for reuse;

   (iii)remove and dispose of shower floor tiles, tiles to hob, first row bathroom floor tiles adjacent to hobs and bottom row of shower wall tiles;

   (iv)make good any damage to substrates to provide an acceptable surface for waterproof membrane (WPM) application including screed if required;

   (v)install a puddle flange;

   (vi)supply and install a compliant WPM to the shower base, shower walls and hob, continuing 50 mm outside shower recess and terminating inside the puddle flange;

   (vii)reinstall the vanity unit;

   (viii)supply and install matching tiles, including grouting and bead of matching sealant to all junctions including floor waste.  If matching tiles are not available then all floor and wall tiles are to be replaced;

   (ix)waterproof around shower taps; and

   (x)reinstall the shower screen and door.

3. The Tribunal further ordered that the works be performed 'in a proper and proficient manner'.[3]

   [3] Exhibit 1, page 9, 

4. Registered builder Mr Martelli gave expert evidence on behalf of Ventura Homes.  Mr Martelli's evidence was that he tested the shower recess in the main bathroom by flooding the screen bottom channel with water after the relevant rubber seal had been removed.[4]  Upon doing so, he observed water leaking outside the shower recess.  Although Mr Martelli did not believe this to be a normal use of a shower recess, he considered the water egress should be remedied by Ventura Homes.[5] 

   [4] Exhibit 2, pages 678 - 685. 

   [5] Exhibit 2, page 679. 

5. Mr Martelli further stated:[6]

   (a)Australian Standard 3740 section 3.18.2 provides a shower screen should be installed on the inner edge of the shower hob;

   (b)the approved architectural drawings showed the shower screen on the outer edge of the shower hob; and

   (c)it was common industry practice for a shower screen to be located on the outer edge of the shower hob as an alternative performance solution.

   [6] ts 26, 30 August 2023; Exhibit 2, page 679. 

6. Section 51 of the BSCRA Act provides that if the Tribunal is satisfied an order to undertake remedial works has not been complied with, or compliance was only partial, the Tribunal may revoke that order and instead make a building remedy order to pay the costs of remedial works or to pay compensation.

7. On behalf of Ventura Homes, civil/structural engineer Mr Just and service manager Mr Meagher gave evidence that Ventura Homes performed works to the main bathroom in response to the 2020 BRO.[7]  This was not disputed by Ms Cairnes.  We accept their evidence and are therefore satisfied works such as the removal and reinstallation of the tiling, shower screening and vanity unit were performed. 

   [7] ts 483; Exhibit 1, pages 69 - 74; Exhibit 2, pages 565 - 566, 736 - 737. 

8. However, in our view, compliance with the orders does not simply require the physical performance of specified tasks, but that the work be done in a proper and proficient manner. 

9. We accept the evidence of Mr Martelli and are satisfied that in allowing the egress of water the shower screen was not installed in a manner which was proper or proficient.  However, we are not satisfied Ventura Homes was at fault in locating the shower screen on the outer edge of the hob because the evidence was that to do so was in accordance with both the approved drawings and common industry practice.

10. In finding that the shower screen was not installed in a manner that was proper or proficient, it follows that Ventura Homes was partially non‑compliant with the 2020 BRO.

11. To the extent that mould forms a part of this complaint, it will be addressed in these reasons in the context of CC 196/2021 at [76] ‑ [111] below.

CC 976/2020 - Item 2B - ensuite bathroom

1. Complaint item 2B in relation to the ensuite bathroom stated:[8]

   Respondent remediated shower under SAT Orders in August 2020.

   Respondent failed to utilise methods to prevent mould cross contamination.

   Respondent has failed to prevent water from penetrating the sub-structure and failed to comply with BCA Part 2.2, 2.4.

   Shower frame installation does not comply with AS3740 Figure 3.10(a) and 3.18.2.1(a).

   [8] Exhibit 1, page 2. 

2. The 2020 BRO stated that pursuant to s 36(1) of the BSCRA Act Ventura Homes was to:[9]

   [9] Exhibit 1, page 8. 

   (i)remove the shower screen and door and store for reuse;

   (ii)remove and dispose of shower floor tiles, tiles to hob, first row bathroom floor tiles adjacent to hobs and bottom row of shower wall tiles;

   (iii)make good any damage to substrates to provide an acceptable surface for waterproof membrane application including screed if required;

   (iv)install a puddle flange;

   (v)supply and install a compliant WPM to the shower base, shower walls and hob, continuing 50 mm outside shower recess and terminating inside the puddle flange;

   (vi)supply and install matching tiles, including grouting and bead of matching sealant to all junctions including floor waste.  If matching tiles are not available then all floor and wall tiles are to be replaced;

   (vii)waterproof around shower taps; and

   (viii)reinstall the shower screen and door.

3. The Tribunal further ordered the works were to be performed 'in a proper and proficient manner'.[10]

   [10] Exhibit 1, page 9. 

4. We accept the undisputed evidence of Mr Just and Mr Meagher that Ventura Homes performed works to the ensuite bathroom in consequence of the 2020 BRO.[11]  We are therefore satisfied works including the removal and reinstallation of the tiling and shower screening were performed.

   [11] Exhibit 1, page 75; Exhibit 2, pages 566 - 567, 736 - 737. 

5. Mr Martelli's evidence was that he tested the shower recess in the ensuite bathroom by flooding the screen bottom channel with water after the relevant rubber seal had been removed.[12]  Upon doing so, he observed water leaking outside the shower recess.  Mr Martelli did not believe this to be a normal use of a shower recess, but nevertheless considered the water egress should be remedied by Ventura Homes.[13] 

   [12] Exhibit 2, pages 686 - 690. 

   [13] Exhibit 2, page 686. 

6. Registered builder Mr Harrison gave expert evidence on behalf of Ms Cairnes.  Mr Harrison's evidence was that he had observed water leaking through the shower hob onto the floor during water testing of the shower screen in the ensuite bathroom.[14] 

   [14] Exhibit 1, page 25 and 27 - 32; ts 33 and 36 - 39, 30 August 2023. 

7. Both Mr Harrison and Mr Martelli agreed that although Australian Standard 3740 section 3.18.2 stated a shower screen should be installed on the inner edge of the hob, it was common industry practice for a shower screen to be located on the outer edge of the shower hob as an alternative performance solution and the plans reflected this practice.[15]

   [15] ts 26 and 28, 30 August 2023; Exhibit 2, pages 679 and 686 - 687. 

8. We accept the evidence of Mr Harrison and Mr Martelli.  Accordingly, we are satisfied that whilst the position of the shower screen was acceptable, the fact it allowed the egress of water meant it was not installed in a manner which was proper or proficient.

9. In finding that the shower screen was not installed in a manner that was proper or proficient, it follows that Ventura Homes was partially non‑compliant with the 2020 BRO.

10. To the extent that mould forms a part of this complaint, it will be addressed in these reasons in the context of CC 196/2021.

CC 976/2020 - Item 2C - laundry floor

1. The description of the complaint item read:[16]

   Respondent investigated laundry floor elevated moisture levels under SAT Orders in August 2020.

   Respondent has continued to fail to prevent water from penetrating the sub-structure and failed to comply with BCA Part 2.2, 2.4, 3.3.4, 3.2.2.6.

   Respondent has failed to comply with Building Licence submitted drawing 'D10'.

   [16] Exhibit 1, page 2. 

2. The 2020 BRO stated that pursuant to s 36(1) of the BSCRA Act Ventura Homes was to:[17]

   (i)perform moisture level testing of the laundry floor and under the laundry cabinet;

   (ii)if the respondents testing reveals moisture levels at or above 20% then the respondent must investigate and remedy the source of any water leaks affecting those areas.

   [17] Exhibit 1, page 8. 

3. The Tribunal further ordered the works were to be performed 'in a proper and proficient manner'.[18]

   [18] Exhibit 1, page 9. 

4. We accept the undisputed evidence of Mr Just and Mr Meagher that Ventura Homes performed works in the laundry as a result of the 2020 BRO.[19]  The report of Mr Just stated he observed photographs of the removal of the laundry cabinet and moisture readings of the wall and floor which showed levels under 20%.  At the time he inspected the laundry, the cabinets had been reinstalled.

   [19] Exhibit 1, pages 69 - 74; Exhibit 2, pages 567, 736 - 737. 

5. Neither Mr Harrison nor Mr Martelli were able to comment on the moisture levels in the laundry at the time of the Ventura Homes investigations.[20]  Mr Harrison's report from 2021 stated moisture levels were elevated 'as previously reported'.  However, this report was not in evidence and Mr Harrison did not provide any further detail when providing oral evidence.[21]

   [20] ts 40, 30 August 2023. 

   [21] Exhibit 1, page 1684.

6. Amongst the material lodged by Ms Cairnes was a document entitled 'Historical Moisture Measurements'.[22]  This appeared to be a table or spreadsheet into which had been inserted an extract from specification information relating to a moisture meter, an extract of an email, various photographs of moisture meters on or near tiles and comments apparently authored by Ms Cairnes.  This document claimed to provide information regarding moisture measurements in the laundry (and other areas) in 2020.[23]  However, there was no evidence confirming each photograph was taken in the laundry, the date on which each photograph was taken, that the moisture meters used were appropriate for the conditions and the person or persons using the meters had the appropriate knowledge or experience.  Accordingly, we can place little reliance upon this document.

   [22] Exhibit 1, pages 42 - 53. 

   [23] Exhibit 1, page 47. 

7. The 2020 BRO obliged Ventura Homes to test for moisture in the laundry.  If moisture levels were less than 20%, then the only obligation upon Ventura Homes would have been to remedy any damage caused by the testing.

8. We are not satisfied the evidence establishes non-compliance by Ventura Homes with the 2020 BRO in relation to the laundry. 

CC 976/2020 - Item 4 - failure to make good

1. The description of the complaint item read:[24]

   Failure to complete items 2 in a proper and proficient manner, including protecting adjacent surfaces and making good affected surfaces.  Surfaces fail to comply with BCA 2.2, 2.4, 3.3.4, 3.2.2.6

   2.AThe Main bathroom floor waste is not [compliant] and not glued to discharge pipe, nor the floor does not fall to the wastepipe

   2.BThe ensuite floor waste is not [compliant] and the floor does not fall to the wastepipe

   2.CThe laundry floor waste is not [compliant] and not glued to discharge pipe, nor the floor does not fall to the wastepipe

   [24] Exhibit 1, page 2. 

2. The 2020 BRO stated Ventura Homes was to complete the specified building work 'in a proper and proficient manner, including protecting adjacent surfaces and making good affected surfaces'.[25]

Floor gradients

[25] Exhibit 1, page 9. 

1. Ms Cairnes expressed the intent to withdraw part of this complaint relating to the floor gradient of the ensuite bathroom floor, as a consequence of her sale of the house.[26]  Ventura Homes consented to the withdrawal of this part of the complaint and we are satisfied it is appropriate to permit the withdrawal.

   [26] Letter from Ms Cairnes to the Tribunal dated 6 March 2024; ts 372, 12 March 2024. 

2. Mr Harrison's report[27] did not comment on the floor gradients in the main bathroom and laundry.  During a conversation between Ms Cairnes, Mr Harrison and Mr Martelli in the final hearing, Mr Harrison appeared to agree with Mr Martelli in relation to the fall of the laundry floor.[28]

   [27] Filed with the Tribunal and included in Exhibit 1. 

   [28] ts 51, 30 August 2023. 

3. Mr Martelli gave evidence the main bathroom and laundry had sufficient fall.  He agreed with Ms Cairnes the gradient in each was less than 1:100, but stated this was sufficient and not representative of faulty works because neither floor was subject to regular water exposure.[29]  In his view, a greater gradient may have affected the usability of the floor.[30]  We accept Mr Martelli's evidence.

   [29] ts 48 - 49, 30 August 2023. 

   [30] Exhibit 2, page 693. 

4. Ms Cairnes' documents included a table which made statements as to the gradients of the floors in the main bathroom and laundry and included pictures of a spirit level on a tiled floor.[31]  The readings on the level were hard to see.  No person gave evidence as to the taking of these measurements and the photographs.  We can place little reliance on this document.

   [31] Exhibit 1, pages 65 - 66. 

5. In relation to the main bathroom, the 2020 BRO required Ventura Homes to replace the shower, including the hob and the first row of floor tiles.  It was only if matching tiles were not available that all floor tiles were to be replaced.[32]  Photographs of those works indicate the first row of floor tiles was replaced by matching tiles.[33]

   [32] Exhibit 1, page 7. 

   [33] Exhibit 1, pages 69 - 72. 

6. In relation to the laundry, the 2020 BRO did not require Ventura Homes to do more than test for moisture levels, provided the levels were measured under 20%.[34]  

   [34] Exhibit 1, page 8. 

7. We are not satisfied the evidence established the floor gradients in the main bathroom and laundry were insufficient.  Even if the floors had been installed in a manner that was not proper or proficient, there would be no grounds for stating this represented non-compliance with the 2020 BRO because the floors were not installed as part of the works required by the 2020 BRO.

Floor wastes

1. Mr Harrison's report dated 15 September 2021 stated the floor waste in the laundry 'was not aligned or totally connected' to the discharge pipe underneath.[35] 

   [35] Exhibit 1, pages 25 & 38; ts 40 - 41, 30 August 2023. 

2. Mr Martelli's evidence was the floor wastes had been removed at the time of his inspection but appeared to have not been fixed in position.[36]  He agreed with Mr Harrison that a failure to properly secure floor wastes and any misalignment was not proper or proficient.[37] 

   [36] Exhibit 2, page 692; ts 40, 30 August 2023. 

   [37] Exhibit 2, page 691 & 693. 

3. We accept the evidence of Mr Harrison and Mr Martelli and accept there appears to have been a failure to properly affix the floor wastes and to properly align the laundry floor waste. 

4. However, as noted at [47] - [49] above, the 2020 BRO did not require (and Ventura Homes did not perform) replacement of the floors in the main bathroom (because matching tiles were available) or laundry (because moisture levels were under 20%).

5. In relation to the ensuite bathroom, the 2020 BRO only required the entire floor to be replaced if matching tiles were not available.  There was no evidence of the extent of tiling in the ensuite bathroom.  The various photographs of the ensuite dated after 2020 depict the same tiles which were left in place during the 2020 works to the main bathroom.  For this reason, we are not satisfied the evidence establishes Ventura Homes replaced the floor of the ensuite bathroom whilst performing the works required by the 2020 BRO.

6. Accordingly, we are not satisfied the evidence established non­compliance by Ventura Homes with the 2020 BRO in relation to the floor wastes.

Main bathroom vanity unit

1. During the final hearing, Ms Cairnes stated this item of complaint also included an alleged failure by Ventura Homes to seal all edges of the main bathroom vanity unit.[38]  This concern was not evident from the details of the complaint item referred by the Building Commissioner, nor from the various documents filed by Ms Cairnes.

   [38] ts 52 - 53, 30 August 2023; ts 293, 1 September 2023. 

2. While questioning Mr Martelli, Ms Cairnes stated Ventura Homes re‑installed the 'cabinets' in November 2017 with exposed edges.[39]

   [39] ts 53, 30 August 2023. 

3. The 2020 BRO at orders 2(a)(ii) and (vii) required Ventura Homes to 'remove the vanity unit and store for reuse' and 'reinstall the vanity unit'.[40]

   [40] Exhibit 1, page 7. 

4. Mr Martelli's report stated when he attended the house on 2 June 2020:[41]

   … [T]he bath and vanity cupboard had been previously removed and some destructive works carried out by the complainant's expert … The bathroom vanity which was stored in the garage was inspected for water damage. No water damage or visual mould was observed to the vanity cupboard, but an exposed panel edge as alleged was observed which is contrary to Australian Standard 4386.2 …

   [41] Exhibit 2, pages 678 - 679. 

5. For clarity we note the above was written in the context of complaint item 2A of CC 976/2020 and we have no explanation regarding the allegation to which Mr Martelli referred.

6. We are doubtful the Tribunal has jurisdiction to consider this claim, which was not evident in the complaint referred by the Tribunal.  Even if the Tribunal had jurisdiction, the evidence is insufficient to satisfy us this represents a failure by Ventura Homes to comply with the 2020 BRO for the following reasons:

   (a)If, as Ms Cairnes stated, the vanity unit was installed in 2017 with an exposed edge, that work was done prior to 2020.

   (b)The 2020 BRO required the removal, storage and reinstallation of the vanity unit, presumably to facilitate the works to be performed to the shower.  The orders did not include any repair of the vanity unit.

   (c)Ms Cairnes did not provide anything upon which we could be satisfied orders 2(a)(ii) and (vii) of the 2020 BRO should be interpreted to include repair of the vanity unit.

   (d)We understand order 4(a) of the 2020 BRO to oblige Ventura Homes to 'make good' or repair any surfaces affected by the building works required by the preceding paragraphs.  We do not consider that order encompasses sealing the edge of the vanity cupboard.

   (e)Mr Martelli observed the vanity unit after it had been removed from the main bathroom.  We have no evidence of the condition of the vanity unit prior to its removal.

Were the building works proper and proficient or faulty or unsatisfactory?

CC 1588/2020 - Item 1 - main bathroom concrete slab

1. This item concerned the concrete slab to the main bathroom.  The description of the complaint item read:[42]

   Non-compliant (670x450mm hole with tapering underside of slab, plumbing installed within depth of slab) and is not compliant with BCA 3.2.2, P2.1.1 (b), Parts 2.2 and 2.4

   Non-compliant with Respondent Building [Licence] Drawing D.10

   [42] Exhibit 1, page 308. 

2. The evidence of Mr Harrison and Mr Martelli was that they observed a hole in the concrete slab which appeared to have been made to accommodate the bath and associated plumbing services without correct placement of concrete infill or neat foam blockout.[43]  Mr Just gave evidence that he had on 16 February 2021 observed a hole in the slab, underneath where the bath had been located and recommended remediation.[44]

   [43] Exhibit 1, pages 323 - 327; Exhibit 2, page 695; ts 67 - 68 and 72 - 73, 30 August 2023. 

   [44] Exhibit 2, pages 568 - 570; ts 75 - 76, 30 August 2023.

3. Mr Harrison and Mr Martelli agreed (and Ventura Homes conceded) the works were contrary to the National Construction Code section 3.2.2.6 and the Australian Standard 2870.[45]

   [45] Exhibit 1, pages 323 - 327; Exhibit 2, page 695; Exhibit 2, pages 8 - 9. 

4. We accept the evidence of Mr Harrison, Mr Martelli and Mr Just.  We are satisfied the concrete slab to the main bathroom was not completed in a proper and proficient manner and/or was faulty or unsatisfactory.

CC 1588/2020 - Item 2 - main bathroom vapour barrier

1. This item concerned the vapour barrier (or waterproof membrane) which would ordinarily be installed under the concrete slab to the main bathroom.  The description of the complaint item read:[46]

   The Vapour Barrier installed is not compliant with BCA 3.2.2.6, Parts 2.2 and 2.4. Non-compliant with Respondent Building [Licence] Drawing D.10. Exposing extreme mould contaminated conditions to the interior environment of the house.

   [46] Exhibit 1, page 309. 

2. The evidence of Mr Harrison and Mr Martelli was that a continuous vapour barrier was not evident.  In their opinion the works had not been completed in a proper and proficient manner.[47]  Mr Just's evidence was that he had observed the vapour barrier was discontinuous and in his opinion a vapour barrier should have been installed.[48] 

   [47] Exhibit 1, pages 323 - 327; Exhibit 2, page 696; ts 67 - 68, 72 - 73 and 94, 30 August 2023. 

   [48] Exhibit 2, pages 568 - 570; ts 75 - 78, 30 August 2023.

3. Ventura Homes conceded the installation of the vapour barrier had not been completed in a proper and proficient manner and was faulty or unsatisfactory.  It did not agree this deficiency had caused elevated levels of moisture or mould in the home.[49]

   [49] Exhibit 2, pages 9 - 13. 

4. We accept the evidence of Mr Harrison, Mr Martelli and Mr Just and are satisfied the absence of a continuous vapour barrier underneath the slab to the main bathroom was faulty or unsatisfactory.  We will address the claims as to moisture and mould in the context of complaint item 1 of CC 196/2021.

CC 1588/2020 - Item 3 - termite treatment

1. Prior to the commencement of the hearing, the parties agreed on the withdrawal of this item of complaint.[50]  We are satisfied it is appropriate to permit the withdrawal.

CC 1588/2020 - Item 4 - main bathroom bath

[50] ts 9, 30 August 2023. 

1. This item concerned the bath in the main bathroom.  The description of the complaint item read:[51]

   The bath waste pipe installed is faulty and the discharge pipe was leaking past sealant between face of bath and plug and washer and is not compliant with BCA 3.2.2.6 (b)

   The bath waste pipe installed is not compliant with Respondent Building License Drawing D.10.

   Extreme mould contamination results under the bath, exposing occupants to unhealthy moist conditions.

   [51] Exhibit 1, page 310. 

2. In his report, Mr Harrison stated he inspected the bath and bathroom on 25 September 2020 following the removal of the bath on 16 September 2020.[52]  He observed the plug and washer fitted to the bath were easily unscrewed and removed.  He found no residual silicone on the rim of the hole in the bath and considered this indicative of no or ineffective adhesion between the bath and the plug and washer.[53]  He observed sand located adjacent to the bath waste pipe was very damp and stated this was evidence of leaking from the bath waste pipe installation and/or rising damp due to the absence of or damage to the vapour barrier.[54]

   [52] Exhibit 1, pages 321, 323, 335 - 336. 

   [53] Exhibit 1, page 326. 

   [54] ts 96 - 97, 30 August 2023; Exhibit 1, pages 325 & 327. 

3. Mr Martelli was unable to assess this complaint because at the time of his inspection the bath had been removed.[55]

   [55] ts 95, 30 August 2023; Exhibit 2, page 698. 

4. We accept the evidence of Mr Harrison and are satisfied Ventura Homes' installation of the bath waste pipe was faulty or unsatisfactory.

5. Claims relating to mould shall be addressed in the context of complaint item 1 of CC 196/2021. 

CC 196/2021 - Item 1 - mould contamination of house

1. This item concerned alleged widespread mould contamination of the house and the contents of the same.  The description of the complaint item read:[56]

   The Respondent has not complied with their obligation to safeguard the occupants of the property from preventing water to damage the structure, thereby promoting mould growth, contributing [to] ongoing illness to the occupants.

   BCA 2010, Volume 2 clauses including; P2.2.3, F2.4.1, O2.4.1, P2.4.1

   [56] Exhibit 1, page 386. 

2. Mould contamination was also a component of the allegations in relation to complaint items 2A and 2B of CC 976/2020 (main and ensuite bathrooms), complaint items 2 and 4 of CC 1588/2020 (main bathroom) and complaint item 7 of CC 39/2022 (dining room).  Those complaints concern the building defects which it is alleged caused the mould.  This complaint relates not to a building defect, but a claim for compensation additional to the cost of repairing building defects.

The experts' evidence

1. On behalf of Ms Caines, evidence as to mould was presented by Dr Neumeister-Kemp and Dr Cameron Jones.  Both were mycologists with established businesses providing services in relation to mycological inspections and laboratory testing and (in the case of Dr Neumeister-Kemp) remediation services.

2. Dr Neumeister-Kemp attended the house twice, on 27 October 2020 and 10 March 2021.  She took samples, which were processed by her laboratory, and prepared reports dated 23 November 2020 and 23 March 2021.[57]  In the hearing, Dr Neumeister-Kemp provided the following context to her reports:

   (a)There should always be a low amount of fungi, this is called normal environmental fungal ecology.[58]

   (b)The taking of outdoor air samples is to set a reference of what is normal at the time of sampling.[59]  The numbers and species in the outdoor air are then compared to the samples taken from indoors.

   (c)Her reports referenced an international standard which provided that for mechanically ventilated buildings a spore count of under 1000 was considered normal.  She felt this had limited application in the context of Ms Cairnes' house and the comparison to the outdoor air was more relevant.[60]

   [57] Exhibit 1, pages 541 and 561. 

   [58] ts 44 & 78, 2 May 2024. 

   [59] ts 77, 2 May 2024. 

   [60] ts 96 - 99, 2 May 2024. 

3. In her 2020 report, Dr Neumeister-Kemp found:

   (a)Viable airborne fungal concentrations - the numbers measured in the outdoor air exceeded the numbers measured from the indoors air.[61]  Of the nine rooms tested, six had higher levels of viable airborne Penicillium species in comparison to the outdoor air, and two rooms had higher levels of viable airborne yeast in comparison to the outdoor air.  In relation to both, the outdoor levels were less than 6 CFU[62] per plate whereas the indoor levels were less than 18 CFU per plate (less than a 'moderate concentration' of less than 30).[63]

   (b)Indoor viable surface sampling returned results varying between 'below detectable limits' and 'very low' save for the ceiling of the main bedroom which recorded 'high' levels.  The fungal genera in the main bedroom sample comprised less than 18 CFU per plate of Aspergillius niger and Yeast and less than 60 CFU per plate of Cladosporium species and Penicillium species.[64]

   (c)Of a total of seven rooms tested, five rooms had total viable and non-viable airborne fungal spores in excess of the outdoor air levels.  One room had a spore concentration of 2.25 times the outdoor air level.  All spore results were described as being within 'normal' levels.  In all rooms the level of general dirt and debris was 'moderate' or 'high'.[65]

   (d)Total viable and non-viable surface sampling results for all rooms tested returned results either 'low' or 'below detectable limits' but 'moderate' to 'high' levels of general dirt and debris.[66]

   (e)Testing of viable fungal concentrations of the soil in the bathroom returned results 'too numerous to count'.[67]

   [61] Exhibit 1, pages 547 - 548. 

   [62] Colony forming unit. 

   [63] Exhibit 1, page 549. 

   [64] Exhibit 1, pages 550 - 551. 

   [65] Exhibit 1, page 552. 

   [66] Exhibit 1, page 554. 

   [67] Exhibit 1, page 555. 

4. In her 2020 report, Dr Neumeister-Kemp recommended the main and ensuite bathrooms be remediated[68] and that it was likely other areas had been cross-contaminated from those locations, although the dining room might have been a secondary source of mould proliferation.[69]  Dr Neumeister-Kemp assessed the house as requiring Level 3 PPE and recommended the use of containment procedures during the remediation process.[70]

   [68] After any underlying source of water inundation had been repaired. 

   [69] Exhibit 1, page 543. 

   [70] Exhibit 1, pages 544 - 545. 

5. In her 2021 report, Dr Neumeister-Kemp found:

   (a)Viable airborne fungal concentrations - the indoor average exceeded the outdoor average, with four rooms slightly above the outdoor average and four rooms higher (not exceeding twice the outdoor average) and the ensuite bathroom having a level below the outdoor average.[71]  Of the nine rooms tested:[72]

   (i)two rooms had levels of Cladosporium species higher than outdoors (under 18 as opposed to under 6 CFU per plate);

   (ii)eight rooms had levels of Penicillium species higher than outdoors (under 18 as opposed to under 6 CFU per plate); and

   (iii)five rooms had levels of Yeast higher than outdoors (under 18 as opposed to under 6 CFU per plate).

   (b)Viable surface sampling returned 'low' or 'very low' results for six locations in the main bathroom, bedrooms and living area, 'moderate' levels under a tile which had been detached from the ensuite bathroom floor, 'high' levels in the dining area and 'extremely high' in the soil in the main bathroom.[73]  The main fungi present were Penicillium species, Cladosporium species, Yeast, Zygomycetes and Sterile Mycelia.

   (c)Viable and non-viable fungal spore air sampling showed all nine rooms tested had levels well below that of the outdoor air and all but one room had 'high' or 'very high' levels of general dirt and debris.[74]  All spore results were described as being within 'normal' levels.

   [71] Exhibit 1, page 567. 

   [72] Exhibit 1, page 569. 

   [73] Exhibit 1, page 570. 

   [74] Exhibit 1, page 572. 

6. In her 2021 report, Dr Neumeister-Kemp recommended the main and ensuite bathrooms and the dining/living area be remediated[75] and that it was likely other areas including the garage had been cross­contaminated from those locations.[76]  Dr Neumeister-Kemp assessed the house as requiring Level 3 PPE and recommended the use of containment procedures during the remediation process.

   [75] After any underlying source of water inundation had been repaired. 

   [76] Exhibit 1, pages 563 - 565. 

7. Dr Jones did not attend the house.  His laboratory analysed air and surface samples taken by Ms Cairnes.  His report dated 18 February 2022 stated:

   (a)Air samples described as 'sofa 3 seater' and 'chair' were assessed as having 24 and 3 CFU per plate respectively and so were rated as 'pass'.[77]

   (b)Air samples described as 'dining table', 'bean bag' and 'linen doona' were assessed as each having 101 CFU per plate and so were rated as 'fail'.[78] 

   (c)Dr Jones' conclusion to the report stated there was '[s]trong evidence of contamination of the airspace in some areas'.[79]  He recommenced remediation or 'other suitable works' be considered and that persons exercise caution or using personal protective equipment when in contact with the rooms sampled.

   (d)These results were based upon a hygiene scale which rated 'normal hygiene' as 13 - 28 CFU per plate, 'elevated' as 29 ‑ 57 per plate (plus considering the prevailing species) and 'high' or 'contaminated' as being 58 ‑ 150 CFU per plate (with a consideration of the dominant species). 

   (e)The report did not discuss the species types identified in each sample and whether the species identified may have been relevant to the ratings.

   (f)The report noted the absence of an outdoor air control sample might reduce the quality of the results (or limit interpretation) and if the report were to be used as part of a legal claim further testing was recommended.[80]

   [77] Exhibit 1, pages 959 - 960. 

   [78] Exhibit 1, pages 961 - 963. 

   [79] Exhibit 1, page 964. 

   [80] Exhibit 1, page 964. 

1. Dr Jones' report dated 26 December 2022 stated:

   (a)The outdoor air sample was assessed as having 32 CFU per plate, which was rated as 'elevated' hygiene.  The risk rating was assessed as 'normal'.  The overall rating was 'borderline' and it was given a 'pass'.[81]

   [81] Exhibit 1 page 1,016. 

   (b)The air sample described as 'garage' was assessed as having 7 CFU per plate, which resulted in a 'low' hygiene assessment and a 'normal' risk assessment.[82]  The overall rating was 'pass'.

   [82] Exhibit 1, page 1,021. 

   (c)The air sample described as 'bathroom' was assessed as having 82 CFU per plate which was assessed as 'high' hygiene and a 'hazardous' risk assessment.[83]  The overall rating was 'fail'.

   [83] Exhibit 1, page 1,020. 

   (d)The surface sample described as 'bathroom walls' was assessed as having 34 CFU per plate which was assessed as 'elevated' hygiene.[84]  The overall rating was 'borderline'.

   [84] Exhibit 1, page 1,017. 

   (e)The surface samples described as 'dining room door' and 'garage floor' were assessed as each having 151 CFU per plate which was given a hygiene assessment of 'extremely high'.[85]  The overall rating was 'fail'.

   [85] Exhibit 1, pages 1,018 - 1,019. 

   (f)Dr Jones' conclusion to the report stated there was '[s]trong evidence of contamination' of the air and surfaces in some areas and that 'fungi having known mycotoxins' had been detected.[86]  He recommended remediation, or 'other suitable interventions' be considered and that persons exercise caution or use personal protective equipment when in contact with the rooms sampled.

   [86] Exhibit 1, page 1,022. 

   (g)The risk rating of the air samples was based upon ratings:

   (i)'normal' - CFU less than or equal to the outdoor air;

   (ii)'elevated' - CFU greater than the outdoor air but less than twice the count in the outdoor air sample;

   (iii)'at risk' - CFU greater than twice the count in the outdoor air sample;

   (iv)'hazardous risk' - CFU greater than twice the count in the outdoor air sample plus 'speciation'; and

   (v)'severe risk' - CFU greater than twice the count in the outdoor air sample plus 'speciation' and 'known mycotoxins'.

   (h)The report did not discuss the species types identified in each sample and whether the species identified may have been relevant to the ratings.

   (i)The report recommended more comprehensive testing.  The report also stated that if the report were to be used as part of a legal claim further testing using 'additional methods' should be considered.[87]

   [87] Exhibit 1, page 1,022. 

2. Whilst not discounting the reports of Dr Jones, we have treated them with some caution because his analysis was reliant upon Ms Cairnes following the correct procedures for collection of the samples and also due to the recommendations for further testing.  Further, the results contained in Dr Jones' report of 26 December 2022 are contradicted by the Prensa post mould remediation verification report from December 2022.[88]

   [88] Exhibit 1, pages 973 - 1,007. 

3. There were additional reports filed by Ms Cairnes.  We place less reliance upon these reports because the authors were not called to give evidence:

   (a)Report entitled 'Mould Sampling Preliminary Overview' by Deanne Hislop of Building Biology WA in relation to the testing of samples from the house on 30 July 2020, 4 August 2020 and 6 August 2020.[89]  It found there was a slight spectral shift in the air samples taken inside the home as compared to the outside air including elevated levels of Cladosporium.  And surface sampling found extremely high levels of Aspergillus/Penicillium and/or Cladosporium on the ensuite bathroom tile and shower hob, underneath the bath, bedroom and air conditioner return filter.  The report recommended a full surface clean.

   (b)An unsigned letter from Building Biology WA dated 18 August 2020 which enclosed various reports from AEML Pty Ltd.[90]  The letter stated the reports supported their recommendation of a full surface clean.

   (c)A report from Mycolab Pty Ltd dated 10 August 2021 noting a mycological analysis was undertaken by Babar Ali and the review by Mariam Begum on the basis of samples taken by Ms Cairnes on 2 August 2021.[91]  It contained findings of 'very high' viable surface fungal concentrations on samples identified as from the slab and carpet located in the garage and the main genera present were Aspergillus species and Cladosporium species.  Total viable and non-viable surface fungal concentrations were tested as 'extreme contamination' on the sample identified as 'under door - dining room'.

   [89] Exhibit 1, pages 443 - 457. 

   [90] Exhibit 1, pages 458 - 540. 

   [91] Exhibit 1, pages 580 - 584. 

4. On behalf of Ventura Homes, evidence as to mould was presented by Ms Jacqueline Campbell and Dr Michael Taylor.  Ms Campbell was the founder and principal consultant for Indoor Air Quality Solutions which specialised in providing occupational health and safety and occupational hygiene support to the mining, construction and corporate sectors.[92]  Dr Taylor was a technical executive for occupational hygiene and indoor environmental quality with an academic background in public and environmental health, microbial ecology and mycology.[93] 

   [92] Exhibit 5, page 2. 

   [93] Exhibit 6, page 1. 

5. Ms Campbell attended the house on four occasions, both before and after 2020.  Her reports prior to 2020 provided as follows:

   (a)Ms Campbell attended the house on 21 November 2017.[94]  Testing indicated moisture was 'trapped' at the base of the wall between the main bathroom and laundry.  The cabinet removed from the laundry was affected by moisture and mould.  Minor mould growth was found on the bottom right corner of the exposed edge of the bathroom vanity.  Moisture from the wall had resulted in mould growth on the underside of the bath.

   (b)Ms Campbell attended the house on 4 December 2017 to conduct a 'post rectification validation inspection'.[95]  The main bathroom, ensuite bathroom, laundry, toilet, cupboard behind the main bathroom, kitchen and second bedroom were inspected.  A small seal fault was found in between the shower screen and wall in the ensuite bathroom.  No moisture was found in the ensuite wall or under the shower tiling.  Residual moisture was found in the wall between the toilet and main bathroom but was expected to dry naturally.  Moisture measurements in one location in the second bedroom were elevated, but this was attributed to the cat's water bowl.[96]  No mould growth was identified.

   (c)Ms Campbell attended the house on 5 February 2019 in response to a notice of proposed complaint and to inspect for moisture ingress and mould.[97]  No evidence of moisture ingress or accumulation or mould was found in the ensuite bathroom, main bathroom, master bedroom, second and third bedrooms, hall linen cupboard, toilet and laundry.  Air quality measurements taken in both bathrooms, all three bedrooms, kitchen/dining room and laundry were 'within acceptable guidelines to prevent mould growth'.  Air sampling indicated the indoor air contained a similar level and composition of mould as compared to the outdoor air.  Surface sampling of the air conditioner filter showed no mould contamination, but the return air circuit showed a 'low-level' increase in Cladosporium species mould.  The report recommended the duct be remediated.  The report concluded the level of mould contamination was 'significantly lower than would be expected' if it were related to the 2017 water ingress to the main bathroom and laundry but the possibility of a link between that and the mould found on the return duct 'could not be unquestionably disregarded'.

   [94] Exhibit 2, pages 140 - 142. 

   [95] Exhibit 2, pages 152 - 154. 

   [96] Ms Cairnes disputed Ms Campbell's conclusion regarding the water bowl.  We have not found it necessary to make a finding on this.

   [97] Exhibit 2, pages 336 - 358. 

6. Ms Campbell attended the house again on 14 April 2021 and the subsequent report contained both Ms Campbell's findings and a review by Dr Taylor.[98]  Ms Campbell stated she took 18 indoor air samples, four outdoor air reference samples, 33 surface samples and one material sample and her findings were presented per room:

   [98] Exhibit 2, pages 590 - 640. 

   (a)Master bedroom[99] - No evidence of moisture ingress, moisture accumulation or visible mould.  The viable air sample contained elevated levels of Cladosporium species mould which was contrary to the 'normal' findings from the Mycotec samples taken in 2020 and 2021.  The non-viable samples contained elevated levels of Aspergillus/Penicillium species, Cladosporium species and Nigrospora species which was contrary to the 'normal' findings from Ms Campbell's samples taken in 2019 and the Mycotec sample taken in 2021.  In Ms Campbell's opinion this indicated there was no mould source in the master bedroom and cross-contamination was occurring from another location.  Surface samples indicated normal mould ecology which was contrary to the Mycotec report of 2020.

   (b)Ensuite bathroom[100] - No evidence of moisture ingress, moisture accumulation or visible mould, save that when a loose floor tile was lifted, the back of the tile and the substrate were wet.  The viable air sample contained a moderate increase of Cladosporium species mould which was contrary to the 'normal' findings from the Mycotec samples taken in 2020 and 2021.  The non-viable samples contained elevated levels of Cladosporium species which was contrary to the 'normal' findings from Ms Campbell's samples taken in 2019 and the Mycotec sample taken in 2021.  Ms Campbell stated this again indicated cross-contamination rather than mould growing in the ensuite bathroom.  Surface sampling underneath the removed tile indicated normal surface mould ecology which was contrary to the Mycotec report of 2021.

   (c)Open plan living/dining area[101] - No evidence of moisture ingress, moisture accumulation or visible mould.  The viable air sample contained a moderate increase of Cladosporium species mould which was contrary to the 'normal' findings from the Mycotec samples taken in 2020 and 2021.  The non‑viable samples contained elevated levels of Cladosporium species and Nigrospora species which was contrary to the 'normal' findings from the Mycotec sample taken in 2021.  Ms Campbell considered this indicated cross-contamination rather than mould growing in the living/dining area.  Surface testing where flooring had been removed adjacent to the sliding door showed a low concentration of actively growing Penicillium species.  Surface testing from the living room couch and kitchen skirting showed normal mould ecology which was consistent with comparable samples taken by Mycotec in 2020 and 2021.

   (d)Second bedroom[102] - No evidence of moisture ingress, moisture accumulation or visible mould.  The viable air sample showed a significant increase in Cladosporium species mould which was consistent with the 2020 Mycotec testing but in contrast to the Mycotec 2021 testing which showed moderate increase in Cladosporium species, Penicillium species and Yeast.  The non‑viable air testing showed an increase in Cladosporium species and Nigrospora species in contrast to the Mycotec testing of 2020 and 2021 which had 'normal' results.  Surface samples showed normal mould ecology which was consistent with Mycotec testing from 2020 and 2021.

   (e)Main bathroom[103] - No evidence of moisture ingress, moisture accumulation or visible mould.  The viable air sample showed a significant increase in Cladosporium species and a moderate increase in Penicillium species, which differed to the Mycotec 2020 samples which showed a moderate increase in Penicillium species and the 2021 Mycotec testing which showed moderate increase in Penicillium species and Yeast.  The non-viable air testing showed an increase in Aspergillus/Penicillium species and Nigrospora species in contrast to Ms Campbell's samples in 2019 and the Mycotec testing of 2020 and 2021 which had 'normal' results.  Non-viable surface sampling of the wooden batten showed significantly increased Aspergillus/Penicillium species and viable sampling of bricks at the base of the bath and wall at the head of the bath confirmed the presence of Penicillium species.  The sand which had been below the bath was dry and showed no visible evidence of mould but when tested returned high counts for Aspergillus species and Epicoccum species.  In contrast the Mycotec testing in 2020 returned high results for Cladosporium species.

   (f)Garage[104] - It was observed the vanity unit from the main bathroom had been placed in the garage without containment.  Visual inspection did not indicate mould or significant water damage and surface sampling returned a 'normal' result.

   (g)Laundry[105] - No evidence of moisture ingress, moisture accumulation or visible mould.  The viable air sample showed a significant increase in Cladosporium species and a moderate increase in Penicillium species, which differed to the Mycotec 2020 and 2021 samples which showed a moderate increase in Penicillium species.  The non-viable air sample showed a low elevation of Cladosporium species which was consistent with the Mycotec testing in 2020 and 2021.

   (h)Third bedroom[106] - No evidence of moisture ingress, moisture accumulation or visible mould.  Surface samples showed a normal mould ecology.  The viable air sample showed a moderate increase in Cladosporium species, which differed to the Mycotec 2020 testing which was 'normal' and the 2021 testing which showed a moderate increase in Penicillium species and Yeast.  The non-viable air samples were normal, which was consistent with Mycotec testing.

   (i)Air conditioning[107] - The return air duct was free from mould contamination, in contrast to Ms Campbell's sampling in 2019 which showed a moderate increase in Cladosporium species.

   (j)Air quality testing was within acceptable guidelines to prevent mould growth.[108]  The relative humidity in the ensuite was elevated compared to other measurements.  Ms Cairnes advised the ensuite had been used and cleaned the morning of the inspection and so the elevation could have related to insufficient ventilation following use.  Carbon dioxide was higher in the main bedroom and both bathrooms though still in the normal range - this could have indicated the house was not being ventilated as would be the case with normal use.  Volatile organic compounds were higher in the living/dining room and this cleared once the sliding door was opened.  A source of those compounds was not identified.

   [99] Exhibit 2, page 607. 

   [100] Exhibit 2, pages 607 - 608. 

   [101] Exhibit 2, pages 608 - 609. 

   [102] Exhibit 2, page 609. 

   [103] Exhibit 2, pages 609 - 610. 

   [104] Exhibit 2, pages 610 - 611. 

   [105] Exhibit 2, page 611. 

   [106] Exhibit 2, page 611. 

   [107] Exhibit 2, page 611. 

   [108] Exhibit 2, pages 612 - 613. 

7. Ms Campbell recommended:[109]

   (a)testing for any residual water leaks;

   (b)installing a suitable waterproof membrane to the main bathroom prior to reinstallation of the bath and vanity;

   (c)remediation of all surfaces in the main bathroom and testing before removing the physical isolation of the main bathroom;

   (d)completing a detailed clean of the house, allowing it to fully ventilate and then re-testing to confirm the house had been returned to 'environmentally normal'.

   [109] Exhibit 2, page 614. 

8. Dr Taylor's review of the results stated:[110]

   (a)Mould and mould spores are ubiquitous and the levels vary greatly depending on various natural factors.  Generally, there is no 'normal' level of mould and the levels in a residence are considered in comparison to reference samples.

   (b)The testing by both parties over time produced varied results with peaks in different locations at different times.  If there were consistent growth in the structure, consistently elevated results in that area should be detectable and worsening over time with a likely shift to secondary and tertiary colonising fungi.  This was not evident.  For this reason, and in view of the consistently dry readings and residual dusts, the most likely explanation was that there had been cross-contamination from uncontained remediation works exacerbated by the property being unoccupied.

   (c)It was not necessary to remove the soil from the main bathroom, but it should be contained and the room should be physically isolated until remediation was complete, the room fully ventilated and testing done to confirm the remediation was successful.

   (d)It was likely the remainder of the house could be remediated by a detailed clean.  Cleaning might be most successful if various areas were contained, and the cleaning moved from most to least 'dirty'.  This should be followed by full ventilation and testing to confirm the remediation had been successful.

   (e)Research indicated that the tested levels in the property would not be likely to significantly negatively impact habitability an otherwise healthy individual, but where someone is sensitised that may 'alter the acceptable limit of spores'.

   [110] Exhibit 2, pages 594 - 605. 

9. The final report of Ms Campbell was prepared in response to a request to clarify or expand upon her and Dr Taylor's joint report.[111]  It stated:

   [111] Exhibit 2, pages 641 - 644. 

   (a)The presence of mould spores on a surface does not prove high levels of airborne spores.

   (b)Mould spores need to settle on a damp surface before germinating and growing.  Without dampness, the mould spores are simply part of any dust or debris on that surface.

   (c)Relevantly, in their sampling, the reported level of non‑microbial debris indicated that 4 of 11 samples were 76% ‑ 90% and 5 of 11 samples were 26% - 75%.

   (d)Their conclusion from the totality of all the reports was that it was likely there was a slight to moderate increase in fungal spores in the house, but it was more likely this was caused by accumulated dust and deposits from cross-contamination from uncontained works rather than significant active fungal growth.  For example, if there had not been sufficient containment when the bath was removed.

   (e)Where a property is significantly contaminated by active mould growth, international standards[112] recommend the physical isolation of contaminated areas and affected surfaces are remediated by a combination of HEPA vacuuming, washing, wiping and physical removal (including, if necessary, the replacement of air conditioning ducting).  This requires specialist contractors and may require the use of personal protective equipment depending on the level of contamination.  It was estimated to undertake this level of remediation at the house would require four technicians for four full days and the cost of this and consumables and equipment would be $18,800.

   (f)They did not believe this level of remediation was required in this case because the concern was the accumulated spores in the dust and debris rather than the level of active mould growth.  Accordingly, once the main bathroom had been 'returned to operational condition' the house could be cleaned by normal domestic cleaners using normal domestic cleaning products, a HEPA filtered vacuum cleaner and microfibre cloths.  The cost of this was estimated to be $1,145.

   (g)It was recommended there be testing to confirm the remediation and cleaning had been successful.

Our thoughts on the expert evidence

[112] ANSI/IICRC S500, S520 and R520. 

1. Despite significant differences between the experts' reports and evidence, all four experts agreed the presence of mould in the house was above what might be considered 'normal' for the house and remediation was required. 

2. Dr Neumeister-Kemp considered there was a low level of mould cross‑contamination throughout the house.  In 2020 she considered the most likely source of the mould was the main and ensuite bathrooms.[113]  In 2021, she identified the highest source of mould to be the main bathroom but considered the ensuite bathroom and dining room were also sources.[114]  Dr Neumeister-Kemp stated cross-contamination could occur through normal movement of the air, if contaminated areas were not contained, and there was a high likelihood of cross-contamination if the bath had been uplifted and carried through the house without being wrapped.[115]

   [113] Exhibit 1, page 543; ts 77 - 78, 2 May 2024. 

   [114] Exhibit 1, page 563; ts 153, 2 May 2024. 

   [115] ts 110 - 111, 2 May 2024. 

1. The joint report of Dr Taylor and Ms Campbell expressed the view the mould contamination in the house was more likely to be the result of cross-contamination and a lack of ventilation as opposed to active mould growth.[116]  If there were active growth, the most likely primary source of mould was the main bathroom.

   [116] Exhibit 2, page 604. 

2. We find the joint report of Dr Taylor and Ms Campbell more persuasive than the reports of Dr Neumeister-Kemp for the following reasons:

   (a)We find credible the comment by Dr Taylor that if mould were consistently growing in a location, testing should show consistently elevated contamination in that location which worsened over time.[117]  Thus we find credible his conclusion that the absence of this consistency meant the contamination was more likely a result of cross-contamination from previous events, rather than current active mould growth.

   (b)Dr Neumeister-Kemp suggested in her evidence the level of general debris was relevant only to whether the levels were high enough to obscure visual analysis of a sample.[118]  However, we find more credible Dr Taylor's comment that because the house had not been occupied and subject to regular cleaning, the accumulation of dust on surfaces could lead to an elevation in the presence of spores.[119] It appears to us logical that mould spores could settle out of the air in a manner like dust. It would then follow the longer household surfaces were not wiped, the more dust and mould might settle onto those surfaces. (We cannot conclude the source of those spores had to be internal mould growth because Ms Cairnes stated even when unoccupied the windows of the house were locked open to allow ventilation from the outside,[120] and the various tests demonstrated the presence of mould in the outdoor air samples.)

   (c)The reports of Dr Neumeister-Kemp repeatedly referred to 'water inundation' and capping of wooden floorboards in the dining room.[121]  However this is inconsistent with other evidence.  There is no evidence of water incursion in the bathrooms or dining room to the extent it might fairly be described as 'flooding'.  The reports of Mr Harrison and Mr Martelli and evidence of Ms Cairnes make no mention of capping to the floorboards.  These comments also seem at odds with the 'dry' measurements recorded by Dr Neumeister‑Kemp throughout the house.[122]

   [117] Exhibit 2, page 600. 

   [118] ts 79 - 80, 2 May 2024. 

   [119] Exhibit 2, page 600. 

   [120] ts 336 - 337 & 342, 1 September 2023. 

   [121] Exhibit 1, pages 543, 563, 586. 

   [122] Exhibit 1, page 543. 

3. It is also relevant to note in her evidence before the Tribunal, Dr Neumeister-Kemp more than once appeared to state the main bathroom was the source of the mould which then contaminated the house through a process of cross-contamination.[123]  On the other hand, Dr Neumeister-Kemp also appeared to identify the dining room and ensuite bathroom as additional point sources.[124]

Evidence regarding moisture

[123] ts 78, 81 & 102, 2 May 2024; ts 133, 139 & 140, 3 May 2024. 

[124] ts 153 & 154, 3 May 2024. 

1. Measurements recorded in the reports of Dr Neumeister-Kemp and Ms Campbell (after 2020) stated the house was dry, save for underneath a tile in the ensuite bathroom.[125]  This might suggest the proven building defects did not cause elevated moisture in the house. 

   [125] Exhibit 2, page 613. 

2. Ms Cairnes gave evidence her family ceased to use the shower in the ensuite bathroom after 5 December 2020.[126]  There was no clear statement of when use of the shower in the main bathroom ceased.  Ms Cairnes' evidence suggested it was not in use after the hole in the slab was discovered on 26 September 2020.[127]  If the showers were not in use, it follows there would have been no water egress from the showers.

   [126] ts 274 - 275, 1 September 2023. 

   [127] Exhibit 1, page 121; ts 272, 1 September 2023. 

3. Ms Cairnes' evidence was not consistent with Ms Campbell's report of inspecting the house on 14 April 2021.  The report stated the substrate under a loose floor tile in the ensuite bathroom was wet, although measurements closer to the shower were dry.[128]  That report later stated the humidity and corresponding dew point were elevated in the ensuite bathroom compared with other locations in the house.  Ms Campbell wrote this may have been associated with insufficient ventilation of the room following showering or cleaning and 'the owner confirmed that the room had been used and cleaned the morning before the inspection … Discussion with the owner highlighted that the ensuite is in daily use as the only operational Bathroom' [sic].[129] 

   [128] Exhibit 2, page 607. 

   [129] Exhibit 2, pages 612 & 614. 

4. Ms Cairnes suggested this report was incorrect in stating there was only one operational bathroom at the property because they were living in a caravan which also had an operational bathroom.[130]  Ms Cairnes did not appear to dispute she had told Ms Campbell the ensuite bathroom was in daily use.

   [130] ts 183 - 184, 3 May 2024. 

5. To resolve the conflict, we feel the most likely explanation is that in overall terms Ms Cairnes' statement the ensuite shower was not in use after 5 December 2020 was correct.  Except for that period between March and May 2021 when they returned to living in the caravan.

6. Thus, when Dr Neumeister-Kemp visited the house on 27 October 2020 and 21 March 2021 and when Ms Campbell visited on 14 April 2021, it appears likely the ensuite shower was in use, but the main bathroom shower was unused.  It is notable Dr Neumeister­Kemp's moisture measurements were dry.  Although Ms Campbell identified moisture underneath the loose tile, measurements closer to the ensuite shower were dry.

7. Mr Harrison's report dated 15 September 2021 stated moisture was an acceptable level in the screed where a floor tile had been removed in the ensuite bathroom and he confirmed the same in evidence.[131]

   [131] Exhibit 1, page 25; ts 34, 30 August 2023. 

8. Mr Martelli's inspection found no evidence of water leaking when simulating normal use of the showers.  It was only when the rubber seals were removed and water poured into the channels of the shower screen that leaks became evident.[132]

   [132] Exhibit 2, pages 679 and 686. 

9. It is unclear whether or not the rubber seals were removed from the ensuite shower during Mr Harrison's testing.  There was a photograph which suggested a seal was removed.[133]  Mr Harrison said to do so would not have been his usual practice, but the seals may have been removed to track the movement of water.[134]

   [133] Exhibit 1, page 31. 

   [134] ts 38 - 39, 30 August 2023. 

10. Ms Cairnes argued the photographs at pages 27 and 28 of Exhibit 1 demonstrated the hob to the ensuite shower was 'wet'.  Unfortunately, no one gave evidence in relation to these photographs, save that Mr Harrison confirmed they were taken by him.  It appears therefore the moisture measurements were taken by another person.  It is unclear whether the meter was appropriate for that environment and was being used correctly.  We have no expert interpretation of the meaning of the readings, nor whether those readings had been influenced by the removal of the rubber seals.

11. Mr Harrison's report of December 2020 stated the soil underneath the bath was very damp.[135]  The reports of Dr Neumeister-Kemp did not comment on moisture levels in the soil (save that moisture readings in the house were dry).[136]  In her evidence, Dr Neumeister-Kemp stated the soil was wet.[137]  When Ms Campbell inspected the soil on 14 April 2021 it was dry.[138]

Conclusions

[135] Exhibit 1, page 325. 

[136] Exhibit 1, pages 543 & 563. 

[137] ts 148, 3 May 2024. 

[138] Exhibit 2, page 610. 

1. The evidence is insufficient to satisfy us the egress of water from the showers during normal use had created a moist environment which contributed to the active growth of mould.  Similarly, the evidence is insufficient to satisfy us the ingress of water in the dining room had caused more than the isolated growth of Penicillium species on the wood which had been removed close to the sliding door.

2. We are satisfied the breach of the waterproof membrane and the hole in the slab created a source of moisture which caused the growth of mould which was then spread by means of cross-contamination into other areas of the house.

CC 196/2021 - Item 2 - main toilet

1. Prior to the commencement of the hearing, the parties had agreed on the withdrawal of this item of complaint.[139]  We are satisfied it is appropriate to permit the withdrawal.

CC 38/2022 - Item 1 - inground stormwater drainage system

[139] Exhibit 1, page 387; Exhibit 2, page 20.

1. The description of this item stated:[140]

   Non-compliant installation of inground stormwater drainage system. Installation does not comply with AS/NZS 3500.5.200 clauses 5.6.3.1(a), 5.6.11.10.2(b) … the Respondent has failed to provide the Stormwater drainage drawings …

   As outlined in the original submission on Page 5 of 7 dated Oct 2021, schedule updated to include clarification of locations;

   [140] Exhibit 1, pages 1406-1407.

2. We understand Ms Cairnes particularised the details of this complaint in complaint items 1A-1E.  During the final hearing neither party made submissions or led evidence in relation to this item independently of other complaint items.  We are not satisfied there is a basis for finding in favour of Ms Cairnes in relation to this complaint item solely.

CC 38/2022 - Items 1A and 1B - inground stormwater pipes

1. The complaints at these items alleged defects in the stormwater drainage system located under the second bedroom and garage (item 1A) and under the ensuite and walk-in robe (item 1B). 

2. The description of complaint item 1A read:[141]

   The pipework is non-compliant, is not installed with adequate gradients/falls and is holding water, is damaged, has root infestation and is contaminated with sand. The pipework is damaged directly under the single leaf brick wall of Bed 2 and the garage, continuing for a length of approximately 2.0m towards the front courtyard.

   [141] Exhibit 1, page 1,407. 

3. The description of complaint item 1B read:[142]

   The pipework is non-compliant, is not installed with adequate gradients/falls and is holding water, is damaged, has root infestation and is contaminated with sand.

   [142] Exhibit 1, page 1,408. 

4. Ventura Homes conceded some of the works to the stormwater drainage had not been completed in a proper and proficient manner.[143]

   [143] Exhibit 2, pages 23 - 24. 

5. The evidence of Mr Martelli was that he had not formed a view regarding the cause of the damage to the pipes because he was not a plumber.  He reviewed the internal camera pipe inspection video provided by the plumber engaged by Ms Cairnes (Plumbdog, North Perth) and met on site with a plumber engaged by Ventura Homes (Chris Tucker).  Mr Martelli accepted Mr Tucker's recommendations to repair the stormwater pipes under the second bedroom, garage, ensuite and walk-in robe.[144]

   [144] ts 109, 115 and 117, 30 August 2023. 

6. The email from Mr Tucker to Ventura Homes dated 2 June 2022 stated:[145]

   …

   The stormwater pipework under bed 2 and the garage slab has been damaged and I would recommend replacing the damaged section and rectifying the backfall due to the damaged pipework …

   The stormwater pipework under the ensuite and the walk in robe appears to be contaminated with sand causing the appearance of back fall …

   [145] Exhibit 2, pages 656 - 657, 701. 

7. The report of Plumbdog, North Perth indicated it undertook a camera inspection and assessment of various plumbing, drainage and stormwater concerns at the request of Ms Cairnes.  Its report dated 5 October 2021 relevantly stated:[146]

   Stormwater piping under building for northern side of house holds water and sand due to damage found near entry to soak well.

   Stormwater piping under building for western side of house holds water and sand due to damage found for approximately 2 meters under carport where efflorescence as above.

   Damage to stormwater piping will be severely [affecting] it's performance at removal of rain water and will cause flooding to courtyards in heavy rain.

   [146] Exhibit 1, page 1,454. 

8. A further report was obtained by Ms Cairnes from Tunnel Vision (WA) Pty Ltd, dated 9 November 2022.[147]  The report stated:

   …

   Started with exposing stormwater drain to rear west side.  Opened rubber band seal on 90mm pvc pipework.  Then used cctv downstream. Found various issues along pipework. Cracks in pipework from 4.8m to 8.2m.  Also pipework is crushed.  Joint at 4.8m appears not to be glued fully together. Drain holds water, build up of silt in drain.  Set up jetter to attempt to clean silt through to buried soakwell.  Due to jetting from upstream to downstream unable to remove all[.]

   [147] Exhibit 1, page 1,492. 

9. We accept the evidence of Mr Martelli and the reports of Mr Tucker, Plumbdog and Tunnel Vision.

10. The reports do not express a view as to the cause of the damage to the stormwater pipes.  However, given the location of the pipes, the extent of the damage described and the concession by Ventura Homes, we are satisfied the most likely explanation is the pipes were damaged during construction.  Accordingly, we are satisfied the evidence has established the building works of Ventura Homes were not completed in a proper and proficient manner and/or were faulty or unsatisfactory.

CC 38/2022 - Item 1C - soak well north

1. Ms Cairnes expressed the intent to withdraw this item of complaint in consequence of her sale of the house and Ventura Homes consented to the withdrawal.[148]  We are satisfied it is appropriate to permit the withdrawal.

CC 38/2022 - Item 1D - silt sumps

[148] Letter from Ms Cairnes to the Tribunal dated 6 March 2024; ts 372, 12 March 2024. 

1. Complaint item 1D concerned the silt sumps in the driveway of the property. 

2. The description of the item 1D read:[149]

   Sumps in driveway are poorly installed and pipework connectors are not sealed.

   [149] Exhibit 1, page 1,408. 

3. The report of Plumbdog dated 5 October 2021 relevantly stated:[150]

   Silt sumps in driveway found poorly installed and pipe connections are not sealed.

   [150] Exhibit 1, page 1,454. 

4. Ventura Homes conceded liability.[151]  Mr Martelli's evidence was that he had relied upon the opinion of Mr Tucker, whose report had stated, 'I would recommend the pipework needs to be sealed where it enters the pits'.[152]

   [151] Exhibit 2, pages 24 - 25. 

   [152] Exhibit 2, pages 657, 702 - 703. 

5. We accept the reports of Plumbdog and Mr Tucker which observed the pipework required sealing and are satisfied this represents unsatisfactory building work on the part of Ventura Homes.  To the extent this complaint may allege other building defects, the evidence does not establish their existence.

CC 38/2022 - Item 1E - silt trap

1. Complaint item 1E referred to a silt trap, and was described as follows:[153]

   Removal of open silt trap, north west corner.

   [153] Exhibit 1, page 1,408. 

2. The report of Plumbdog dated 5 October 2021 relevantly stated:[154]

   Recommend removal of open silt trap to front left corner (west) as not required.

   [154] Exhibit 1, page 1,454. 

3. Ventura Homes conceded item 1E.[155]  Mr Martelli's evidence was that he had relied upon the opinion of Mr Tucker, who had stated, 'I would recommend the pipework to the pit from the stormwater line needs to be laid on grade and the connection to the main stormwater line needs to be rectified'.[156]

   [155] Exhibit 2, pages 24 - 25. 

   [156] Exhibit 2, pages 657, 702 - 703. 

4. It is not clear the basis on which Plumbdog considered the silt trap unnecessary.  Mr Tucker in his report appears to discuss an issue separate to the concern raised by Plumbdog.  We are not satisfied this evidence establishes liability on the part of Ventura Homes.

CC 38/2022 - Item 2 - garage slab

1. This item concerned the concrete slab to the garage.  The description of the complaint item read:[157]

   Non-compliant installation of garage slab structure, failure to prevent dampness and weatherproof Class 1 building[.]

   [157] Exhibit 1, page 1,408.

2. Mr Martelli's evidence might be summarised as follows:[158]

   (a)Site conditions had been wet prior to his inspection on 2 June 2022.

   (b)No elevated moisture levels in the garage slab were recorded.

   (c)A vapour barrier underneath the slab was not required in the drawings or Australian Standards because the garage slab was not continuous with the house slab and the single leaf garage walls were protected from moisture transfer by cavity closure flashings as specified in the drawings.

   [158] Exhibit 2 pages 677, 704 - 709; ts 127 - 129 and 134 - 136, 31 August 2023. 

3. Mr Harrison's initial evidence might be summarised as follows:[159]

   (a)A section of the garage floor had mould growth and elevated moisture levels were recorded.  Moisture levels were acceptable in the walls and edges of the concrete floor.

   (b)Without a cavity wall, it was necessary to have a continuous vapour barrier below the house and garage slabs.  Inspection confirmed there was no such barrier.

   [159] Exhibit 1, page 26; ts 140 - 141, 31 August 2023. 

4. The concurrent giving of evidence prompted a discussion between Mr Harrison and Mr Martelli.  In the course of that discussion and in cross-examination Mr Harrison agreed:[160]

   (a)The engineering drawings did not provide for a vapour barrier under the garage slab.

   (b)If, as required by the drawings, Venura Homes had installed a damp course to the wall between the house and garage, that would be sufficient to comply with Australian Standards.

   (c)He had not investigated the presence or absence of the damp proof course to the wall between the house and garage.

   [160] ts 141 - 147, 31 August 2023. 

5. On the basis of Mr Martelli's evidence and Mr Harrison's acceptance of the same, the evidence is not sufficient to satisfy us Ventura Homes failed to construct the garage slab in a proper and proficient manner or that it was faulty or unsatisfactory.

CC 38/2022 - Item 3 - educt vent pipe

1. This item concerned plumbing venting.  The description of the complaint item read:[161]

   EVP Pipe, rear courtyard adjacent to the dining room door

   Non-compliant installation/missing item from As Constructed Plumbing …

   [161] Exhibit 1, page 1,409. 

2. The report of Plumbdog dated 5 October 2021 stated:[162]

   As Constructed plan 27.11.15 indicates EVP to courtyard by rear kitchen sliding door, no EVP found installed.

   [162] Exhibit 1, page 1,454. 

3. Ventura Homes conceded this item.  Mr Martelli's evidence was that he had relied upon the opinion of Mr Tucker, who had advised as follows:[163]

   There is no EVP installed as per drainage ascon. Either an EVP or an AAV needs to be installed on the drain line from the main WC/Laundry/Bathroom.

   [163] Exhibit 2, pages 657, 709; ts 151, 31 August 2023. 

4. We accept the reports of Plumbdog and Mr Martelli and are satisfied the evidence establishes the works in relation to the educt vent pipe were faulty and unsatisfactory. 

CC 38/2022 - Item 4 - disconnector gully north wall

1. Ms Cairnes expressed the intent to withdraw this item of complaint as a consequence of her sale of the house and Ventura Homes consented to the withdrawal.[164]  We are satisfied it is appropriate to permit the withdrawal.

CC 38/2022 - Item 5 - mould in garage

[164] Letter from Ms Cairnes to the Tribunal dated 6 March 2024; ts 372, 12 March 2024. 

1. This item concerned alleged mould contamination of the garage.  The description of the complaint item read:[165]

   Mould Contamination, garage slab and garage contents

   The Respondent has not complied with their obligation to safeguard the occupants in preventing water to damage the structure, again promoting mould contamination …

   [165] Exhibit 1, page 1,409. 

2. As stated above, the evidence of Mr Martelli was that he had found no elevated moisture readings in the garage.[166]  Mr Harrison gave evidence elevated moisture levels were found in one part of the garage floor, but that moisture levels were normal in the edges of the garage slab and walls of the garage.[167]  It was the opinion of Mr Martelli the garage conformed with the plans and with Australian Standards regarding water proofing.  In discussions with Mr Martelli, Mr Harrison conceded that if the garage had been constructed according to the plans, it would be in accordance with Australian Standards and a continuous waterproof membrane would not have been required.

   [166] Exhibit 2, pages 703 - 709; ts 127, 31 August 2023. 

   [167] Exhibit 1, pages 26 and 39 - 41 and 52 - 53; ts 148, 31 August 2023. 

Ensuite bathroom

1. As stated above, we are satisfied the evidence established that in allowing the egress of water, the shower screen had not been installed in a proper and proficient manner by Ventura Homes or that it was faulty or unsatisfactory.

2. Accordingly, we are satisfied it is appropriate to revoke the relevant part of the 2020 BRO and make a building remedy order requiring Ventura Homes to pay the reasonable cost incurred by Ms Cairnes in remedying the failure to comply with the 2020 BRO.

3. Mr Martelli considered the cost of repairing the ensuite shower was the same as for the main bathroom.[222]  Mr Harrison felt more work would be required because testing indicated water was egressing behind the tiles, likely due to the shower screen fixings having penetrated the waterproof membrane.  Mr Harrison's estimation of the costs of this work was subsumed within his estimation for the works necessary to remediate the floor gradient.[223]

   [222] ts 31 - 32, 30 August 2023. 

   [223] Exhibit 1, page 95; ts 33 - 35, 30 August 2023. 

4. We find Mr Harrison's assessment more persuasive, based on the photographs he confirmed were taken during his testing.[224]  On this basis, we are satisfied additional works were required to the hob.

   [224] Exhibit 1, pages 29 - 30. 

5. The invoices which Ms Cairnes identified as relevant to repair of the ensuite bathroom were as follows:

   (a)An invoice from Imported Ceramics dated 7 November 2022.[225]  In evidence is a scanned copy of an invoice which appears visually similar to the Imported Ceramics invoice described at [173(e)] above, but which is blank.[226]  Overlying part of the image of the invoice is what appears to be a receipt from an EFTPOS machine which is dated 7 November 2022 and records a payment of $90.86.  Ms Cairnes' evidence was that overall, this invoice concerned works performed in relation to complaint items 2B, 2C and 4 of CC 976/2020.  Unfortunately, the blank invoice and incomplete image of the EFTPOS docket are insufficient to satisfy us there should be orders reimbursing the same.

   (b)The Owen Industries invoices dated 13 December 2022 and 10 January 2023,[227] which have been described at [173]. Each invoice is said to relate to six complaint items and so the pro‑rata allowances in relation to complaint item 2B of CC 976/2020 would be $1,041.42 and $922.30.

   (c)A Glass Plus invoice dated 19 June 2023 in the sum of $1,496, described as relating to the removal and disposal of an existing shower screen and the installation of a new shower screen.[228]  However, we are not satisfied the evidence established it was reasonable and necessary to replace the shower screen.

   [225] Exhibit 4, page 14. 

   [226] Exhibit 4, page 33. 

   [227] Exhibit 1, pages 1,201 & 1,205; Exhibit 3, page 13. 

   [228] Exhibit 4, pages 14 & 38. 

6. We are satisfied the sum of $1,963.72 is an appropriate allowance for the works recommended by Mr Harrison.

Dining room

1. As explained in [158] - [162] above, we are satisfied the evidence established that water leaked through the dining room sliding door and accordingly the door had not been installed in a proper and proficient manner by Ventura Homes.

2. Ms Cairnes gave evidence that in November and December 2022 she had the 'minimum necessary' repairs done so that she and her family could resume living in the house.  In relation to the dining room, this comprised checking the roof for leaks and doing works in relation to the flashing, gutters and a downpipe, removing a small portion of the wooden flooring immediately adjacent to the sliding door and repairing the plaster wall on the right-hand side of the door where invasive investigations had been undertaken.[229]

   [229] Exhibit 1, pages 132 & 384 - 385; ts 397, 12 March 2024. 

3. Ms Cairnes' evidence was that a replacement sliding door could not be brought through the house and on-site construction of the door would have been required.  But the estimated time for doing so exceeded Ms Cairnes' deadline for the works to be performed.  So instead, the glass was cleaned and replaced and a pergola constructed to prevent the ingress of water around or through the sliding door.[230]

   [230] ts 413 - 414, 12 March 2024. 

4. During the post mould remediation inspection, a cold spot on the dining room floor and elevated moisture in the wall to the left of the sliding door were identified.[231]  As a result, additional wooden flooring was removed and replaced.  A hole was created in the wall to the left of the sliding door, rubble was removed from the cavity and then the wall was repaired.[232]

   [231] ts 402 - 405, 12 March 2024. 

   [232] ts 413 - 417, 12 March 2024. 

5. The invoices which Ms Cairnes identified as relating to the dining room works are as follows:

   (a)The Owen Industries invoices dated 13 December 2022 and 10 January 2023,[233] which have been described at [173] above. Each invoice is said to relate to six complaint items and so the pro-rata allowances in relation to complaint item 7 of CC 39/2022 would be $1,041.42 and $922.30.

   (b)Owen Industries' invoice dated 20 February 2023 in the sum of $9,340.65 for works relating to the supply and installation of a timber pergola and repairing the cavity next to the door/window frame.[234] 

   (c)Owen Industries invoice dated 20 March 2023 in the sum of $1,831.50 relating to the removal and disposal of flooring at the house.[235] 

   (d)Owen Industries invoice 18 May 2023 in the sum of $1, 257.30, which describes the invoice as relating to maintenance works at the house comprising 10 hours' of labour and materials of a 300 x 300 vent, silicon, flashing, 20 x 20 aluminium angle, adhesive, base and top coat paints, 2 plastic sheets, drill bit, mortar fill, Chemfix and bricks.[236]  This was described by Ms Cairnes as ongoing rectification of the moisture relating to the dining room door/window.[237] 

   (e)Australian Cork & Timber Flooring Co invoice dated 21 June 2023 in the sum of $3,932.50, described as the supply and installation of 'direct stick timber flooring'.[238] 

   [233] Exhibit 1, pages 1,201 & 1,205; Exhibit 3, page 13. 

   [234] Exhibit 1, page 1,206; Exhibit 4, page 13. 

   [235] Exhibit 1, page 1,207; Exhibit 4, page 13. 

   [236] Exhibit 4, page 34. 

   [237] Exhibit 4, page 14. 

   [238] Exhibit 4, pages 14 & 40. 

6. Ms Cairnes described these invoices differently in her written closing submissions:[239]

   (a)Owen Industries invoice dated 13 December 2022, but in the sum of $720.99 and described as '[g]lazing removed from frame, components cleaned with antimicrobial, access to cavity under frame to remove rubble, [g]lazing reinstated to frame'.

   (b)Owen Industries invoice dated 10 January 2023, but in the sum of $592.19 and described as 'make good to internal surfaces, plaster, paint, reinstate timber trim against door frame'.

   (c)Owen Industries invoice dated 20 February 2023 in the sum of $9,340.65, described as '[e]xisting door with no sub-sill not replaced.  Westerly window with no eaves overhang.  Patio constructed to prevent water penetration via door frame, as a new frame including sub-sill was not available before mould remediation scheduled for 5/12/2022 and before relocation 20/12/22'.

   (d)Owen Industries invoice dated 20 March 2023 in the sum of $1,831.50, described as '[l]ifting/removal and disposal of floors adjacent to dining room window.  Approx 13.5 sqm to accommodation Prensa recommendation to inspect "cold spot" '.

   (e)Owen Industries invoice 18 May 2023 in the sum of $1,257.30, described as 'invasive investigation into cavity, removal of builders rubble and reinstate wall, plaster, paint internal leaf, installation of vent external leaf to cover hole cut for access'.

   (f)Australian Cork & Timber Flooring Co invoice dated 21 June 2023 in the sum of $3,932.50, described as '[r]eplace timber flooring with inferior product'.

   [239] Filed 8 July 2024 at Annexure 6. 

1. There is no evidence of the basis upon which Ms Cairnes itemised portions of the Owen Industries invoices for December 2022 and January 2023 as relating to the dining room.

2. As to what repairs were reasonable and necessary, Mr Martelli felt further investigations would have been required before he could express a view.[240]  Mr Harrison recommended the sliding door frame be removed so that a sub-still tray could be installed.[241]

   [240] ts 199, 31 August 2023. 

   [241] Exhibit 1, page 1,684; ts 203, 31 August 2023. 

3. The Tribunal's jurisdiction is limited to determining the specific building complaints the subject of these proceedings.  Any issue in relation to roof plumbing was not the subject of a complaint.  This was conceded by Ms Cairnes.[242]  We do not consider any issues regarding roof plumbing to be a part of the complaint in Item 7 of CC 39/2022.  We can make no orders in relation to such matters in these proceedings.

   [242] ts 397, 12 March 2024; ts 446, 13 March 2024. 

4. Ms Cairnes gave evidence that elevated moisture was found in the brick wall to the left of the sliding door.  This appears to have been remedied by the removal of building rubble from the cavity.  There is no evidence this concern related to the ingress of water through the sliding door.  This was not something which had been inspected by Mr Harrison or Mr Martelli.  It appears to us equally or even more likely that the rubble compromised the function of the wall by allowing moisture to move from the external bricks to the internal bricks.  The evidence does not satisfy us the work to the wall on the left-hand side of the sliding door was a reasonable and necessary part of the repair required to address the ingress of water through the sliding door.

5. Similarly, there is no evidence the 'cold spot' on the floor of the dining room bore any relationship to the absence of a sub-sill under the sliding door.  Mr Harrison's report contains no mention of elevated moisture levels in that area and did not identify damage to the floor boards.[243]  Mr Martelli reported moisture levels in the timber floor next to the door were not elevated and he did not observe any water staining or damage to the section of timber flooring which had been removed.[244]  We are not satisfied the evidence established the removal and replacement of a significant portion of the wooden flooring was a reasonable and necessary repair in relation to the sliding door.

   [243] Exhibit 1, page 1,684. 

   [244] Exhibit 2, page 722. 

6. Furthermore, we are not satisfied the installation of the pergola was reasonable and necessary for addressing the cause of water ingress.  The pergola did not accomplish a repair to the door.  If the pergola were not adequate to prevent water from striking the door, or if the pergola were removed, the leak would persist.  Furthermore, the cost of the pergola was substantially greater than the quoted price for repairing the door.[245]

   [245] Exhibit 1, pages 1,755 - 1,757. 

7. We accept the report of Mr Harrison.  We are satisfied it was reasonable and appropriate to clear rubble from underneath the door frame, to repair the damage caused by the invasive investigations to the right of the sliding door and reinstate the timber trim.

8. If the glass and frame were not going to be replaced, and in the context of our findings in relation to complaint item 1 of CC 196/2021, it would have been reasonable to clean the glass and frame as part of a mould remediation.  This part of the claim should be dealt with as part of complaint item 1 of CC 196/2021 but there is no evidence of the cost of this work in isolation.  We accept the submissions of Ms Cairnes that $720.99 is a reasonable sum to allocate in relation to the Owen Industries invoice of 13 December 2022 and $592.19 is a reasonable sum to allocate in relation to the Owen Industries invoice of 10 January 2023.

External areas

Stormwater pipes

1. For the reasons set out in [115] - [123] above, we are satisfied Ventura Homes was liable in relation to the stormwater pipes.[246]

   [246] Complaint items 1A and 1B of CC 38/2022. 

2. Ms Cairnes gave evidence the damage to the stormwater pipes had been repaired and the cost of the repairs was contained in the quote of Tunnel Vision dated 10 November 2022.[247]

   [247] ts 120 - 121, 30 August 2023; Exhibit 1, page 1,493 - 1,495. 

3. There is no invoice or receipt.  However, Ms Cairnes stated Tunnel Vision had repaired the pipes and Ventura Homes did not dispute the pipes had been repaired. 

4. The quoted price of $10,000 is not clearly excessive, given the pipes were underneath the slab, the pipes required clearing before being relined and a section was to be hand excavated to correct the fall.  In the circumstances this sum is accepted as cost of reasonable and necessary repairs.

Silt sumps

1. For the reasons set out in [125] - [129] above, we are satisfied Ventura Homes was liable in relation to the failure to adequately seal pipework in relation to the silt sumps.[248]

   [248] Complaint item 1D of CC 38/2022. 

2. Ms Cairnes' complaint item schedule sought monetary orders in an unspecified amount.  During the final hearing, Ms Cairnes conceded she had omitted obtaining quotes in relation to this item and made an oral application to amend her claim to seek a work order instead of a monetary order.[249] However, as noted at [8] above, the sale of the house means the Tribunal no longer has jurisdiction to order remedial building works.

   [249] ts 121 - 122, 30 August 2023. 

3. In circumstances where there is no evidence of repairs having been performed, nor of any other loss or damage occasioned to Ms Cairnes by reason of the failure to adequately seal pipework in relation to the silt sumps, we order nominal damages in the sum of $50.

Educt vent pipe

1. For the reasons set out in [139] - [142] above, we are satisfied Ventura Homes was liable in relation to the failure to install an educt vent pipe in the rear courtyard of the house.[250] 

   [250] Complaint item 3 of CC 38/2022. 

2. Ms Cairnes' complaint sought monetary orders in an unspecified amount, and in the final hearing Ms Cairnes made an oral application to amend her claim to seek a work order instead.[251]  As observed above, the Tribunal no longer has jurisdiction to make such an order.  In circumstances where there is no evidence of repairs having been performed, nor of any other loss or damage occasioned to Ms Cairnes by reason of the absence of the educt vent pipe, we order nominal damages in the sum of $50.

House (mould)

[251] ts 152, 31 August 2023. 

1. As stated above, we are satisfied the evidence established that Ventura Homes, in performing works in a manner which was not proper and proficient in the main bathroom, caused elevated moisture which in turn caused mould contamination.

2. The question of what repairs were necessary and performed has been considered in the context of the relevant rooms.  Accordingly, our consideration here is limited to the question of what compensation is justified in relation to the mould contamination.

Ms Cairnes' evidence

1. Ms Cairnes' evidence relevant to the issues relating to mould contamination was as follows.[252]

   [252] These details are derived from Ms Cairnes' witness statement at pages 110 - 134 of Exhibit 1 and transcript of the hearing. 

2. She and her children moved into the house in July 2016.  Ms Cairnes soon noticed a smell of mould in one of the bathrooms and complained to Ventura Homes in August and September 2016.  Elevated moisture levels were measured in the main bathroom, laundry and toilet and Ventura Homes performed remediation works in November 2017.  Concerns persisted and Ms Cairnes lodged a complaint with the Building Commissioner in July 2018.  The ultimate result of that complaint were the building remedy orders of the Tribunal made by agreement of the parties in CC 493/2020.

3. During 2017 - 2020 the health of Ms Cairnes and her children deteriorated.  On 1 June 2020 Ms Cairnes received advice from her doctor to vacate the house for one month.  As a consequence, Ms Cairnes and her children moved to stay with a friend on 3 June 2020 and returned to the house on 2 July 2020.

4. By arrangement with Ventura Homes, they vacated the house again on 19 July 2020 to allow the carrying out of remediation works.  They moved into a short-term rental, returning on 22 August 2020.  The accommodation costs were partly funded by Ventura Homes.

5. Ms Cairnes requested Ventura Homes perform a mould remediation, but they declined.  She arranged for the bath to be uplifted on 16 September 2020 and observed mould on the underside of the bath.  Upon discovering wet sand and a hole in the slab underneath the bath, Ms Cairnes felt it was prudent they again vacate the house.

6. Ms Cairnes and her children moved into rental accommodation on 28 September 2020, but moved back on 12 October 2020.  Ms Cairnes' employer paid for them to stay temporarily at a Quest hotel from 2 November 2020 to 9 November 2020.

7. Due to inability to secure rental accommodation, Ms Cairnes borrowed the funds to purchase a caravan.  The caravan was parked on the front lawn of the house.  They commenced living in the caravan on 14 November 2020.  The purpose being to limit their exposure to the house.  Gazebos and a camp kitchen were set up in the driveway.

8. Ms Cairnes taped plastic over the hole in the slab, shut the door to the main bathroom and taped plastic across the hallway so the main bathroom could be accessed through the garage but was isolated from the main living area and the main and third bedrooms.  They used the toilet and shower located in the ensuite bathroom.  However, when Ms Cairnes discovered the ensuite shower was leaking on or about 5 December 2020, they commenced using the shower in the caravan.

9. On 25 February 2021, Ms Cairnes and her children left the caravan and moved into her employer's vacant residential office.  Unfortunately, the bathroom ceiling collapsed due to storm damage and they were required to return to the caravan on 6 March 2021.  They moved to a rental property on 3 May 2021, but unfortunately this property proved unsuitable.  On 9 August 2021 Ms Cairnes and one child moved to a friend's house over one hour's drive from Perth.  To meet the other child's health and education requirements, that child stayed with Ms Cairnes' mother closer to Perth.

10. Ms Cairnes was obliged to leave her friend's property.  After an overnight stay in a Quest hotel on 23 December 2021 they moved in with Ms Cairnes' mother on 24 December 2021.  On 2 January 2021 Ms Cairnes and her children moved to another Quest hotel, and then to a short-term rental on 18 January 2022.  They secured a longer-term rental, moving on 1 March 2022. 

11. On 26 November 2022, Ms Cairnes engaged Owen Industries to perform what she considered to be the minimum remediation works necessary to allow her family to recommence living in the house.  Those works commenced on 1 December 2022 and on 20 December 2022 Ms Cairnes and her children moved back to the house.  They lived in tents in the driveway until the completion of works in April 2023.

12. During the time the house was unoccupied, windows had been locked ajar to allow airflow.  Ms Cairnes agreed with the proposition that during the (approximate) two-year period of vacancy, the house was not clean and became 'pretty rundown'.[253]

    [253] ts 1 September 2023, page 338. 

13. Ms Cairnes said she and her children had suffered repeated rashes and respiratory infections since moving into the house in 2016.  One child became so unwell that from March 2020 Ms Cairnes needed to work from home.  From that point Ms Cairnes' health deteriorated to the point where she was hospitalised in May 2020.  Prior to leaving the house in September 2020, she and the children had been in hospital. 

14. After leaving the house their health improved, but they are all now sensitised to the presence of mould.  By way of example, they went to stay with family and within two or three days she and one of her children would projectile vomit when they went to the toilet.  Ms Cairnes found black mould in the rubber of the washing machine and when it was cleaned their symptoms lifted.[254]

    [254] ts 13 March 2024, pages 466 - 467. 

1. It is not necessary, and the evidence is insufficient, for us to make detailed findings regarding Ms Cairnes' above evidence.  We accept after some temporary absences Ms Cairnes and her children were not living in the house between November 2020 and April 2023 and for some periods they lived in tents or a caravan at the front of the house.

2. Ms Cairnes sought compensation for mortgage repayments, the costs of alternative accommodation (including removalists, camping supplies and dog boarding), disposal and replacement of house contents (including carpet, furniture and linen), purchase of items related to cleaning (including vacuum cleaners, HEPA filters and cleaning solution), protective equipment (including masks), third party cleaning services and repeated mould testing.

Basis for awarding compensation

1. Section 36(1)(c) provides there may be an order that the builder pay to the claimant a specified sum of money 'to compensate … for the failure to carry out the building service in a proper and proficient manner or for faulty or unsatisfactory building work'. This means compensation must be for loss or damage caused by the defective building work.

2. A claimant cannot be awarded compensation for loss or damage that could have been avoided or reduced by reasonable mitigating action.[255]  This is because it is the failure to take reasonable steps to mitigate which causes that portion of the loss, rather than the building work. 

   [255] Hippydaze Pty Ltd and Mener Group Pty Ltd [2019] WASAT 92 at [157] - [160].

3. Ventura Homes claimed Ms Cairnes failed to mitigate any damage caused by mould by not taking steps to avoid cross-contamination and by not remediating the main bathroom or performing a mould clean until late 2022.

Cross-contamination

1. The evidence in relation to the precautions taken against cross‑contamination is mixed: 

   (a)Ms Campbell stated she observed Ventura Homes taking appropriate precautions in 2017.[256] 

   (b)Ms Campbell observed the main bathroom was sealed with tape when she visited on 14 April 2021.[257]  In cross‑examination Ms Campbell said she had never disagreed the door to the main bathroom was sealed in 2021 and she recalled that every time other than the first inspection, she resealed the door when she left.[258]  We are unsure how that recollection sits with the observation in Ms Campbell's report dated 18 February 2019 of multiple driplines in the main bathroom, which would suggest the shower was in use.[259]

   (c)Dr Neumeister-Kemp did not recall containment of the main bathroom in October 2020 or March 2021, save that the door was likely closed on each visit.[260]

   (d)Mr Harrison did not recall seeing containment of the main bathroom when he was on site in October and November 2020.[261]  However, he recalled that in 2022 there was a plastic curtain in the hallway through which he had to walk to enter the main bathroom.  Prior to that he recalled the main bathroom was 'all sealed'.[262]

   (e)Mr Martelli did not remember any containment of the bath or main bathroom when he inspected the house on 2 June 2022.[263]

   (f)Ms Cairnes did not observe Ventura Homes taking precautions in 2020.[264]  Mr Meagher was not directly asked and we are unsure whether he would agree or disagree with this assertion.  It is unclear whether precautions were necessary at that time.

   (g)Ms Cairnes conceded she did not guard against cross‑contamination when the bath was removed and whilst it was kept exposed in the bathroom.[265] 

   (h)Ms Cairnes said she taped plastic across the hole in the slab and across the hallway to 'seal off' the main bathroom from most of the house.[266]  There is no evidence of the date on which the plastic was installed, nor when the plastic was removed from the hallway.  If the plastic was partly released to form a curtain instead of a barrier, there is no evidence as to when that occurred.  There is no evidence of the effectiveness of the plastic at either location in preventing cross-contamination. 

   (i)Ms Cairnes gave no evidence of precautions in relation to other areas of the house. 

   [256] Exhibit 1, page 152. 

   [257] Exhibit 2, page 610. 

   [258] ts 184 - 185, 3 May 2024. 

   [259] Exhibit 2, page 338. 

   [260] ts 84 - 85, 2 May 2024; ts 154 - 155 & 163 - 164, 3 May 2024. 

   [261] ts 223, 31 August 2023. 

   [262] ts 163, 31 August 2023. 

   [263] ts 21 & 99, 30 August 2023. 

   [264] Exhibit 1, page 119; ts 269, 1 September 2023. 

   [265] Exhibit 1, page 336; ts 247, 31 August 2023. 

   [266] ts 272 - 273, 1 September 2023; ts 383, 12 March 2024. 

2. It would be fair to acknowledge the potential difficulty for the expert witnesses to recall something from years earlier not recorded in their reports.  On the other hand, the photographs taken during Mr Harrison's and Mr Martelli's inspections seem to indicate that on 7 November 2020, 17 March 2021, 29 May 2021 and 2 June 2022 either there was no plastic covering the hole in the slab or the plastic containment was removed for the purpose of the investigations.[267]  If Mr Harrison and Mr Martelli had been required to remove and replace the plastic, they might be expected to remember that.  We might also expect Ms Campbell and Mr Martelli to recall if there had been a plastic sheet across the hallway which either blocked their passage or which they were required to walk through.

   [267] Exhibit 1, pages 376 - 377, 379 & 380; Exhibit 2, page 697. 

3. We are satisfied Ms Cairnes contributed to the cross­contamination in uplifting the bath without containment precautions.  We are satisfied Ms Cairnes took some containment precautions in terms of closing and taping the door to the main bathroom, although it is not clear when these precautions were in place.

4. If mould were present in the main and ensuite bathrooms in July and August 2020, it is likely Ventura Homes also contributed to the cross‑contamination whilst carrying out the works required by the 2020 BRO.  The evidence is insufficient for us to find in Ms Cairnes' favour.  Ms Campbell's report dated 5 February 2019 stated the house was 'environmentally normal'.[268]  The report of Building Biology of samples taken during that period suggests mould may have been present, but the author of that report was not called to give evidence.[269]

Delayed remediation

[268] Exhibit 2, page 336. 

[269] Exhibit 1, pages 443 - 452. 

1. It is evident from her correspondence and the lodging of the application in CC 976/2020 that by August 2020 Ms Cairnes had formed the view the bathrooms had not been adequately repaired and the house required mould remediation.  Ms Cairnes' opinion on this subject could only have been confirmed by finding the hole in the slab and mould on the underside of the bath in September 2020.

2. Ms Cairnes engaged contractors to perform 'minimum' repairs in November 2022.  The works included sealing the main bathroom, repairing the tiling and shower in the ensuite bathroom, replacing carpets and cleaning blinds.  A mould remediation was performed and a report by Prensa dated December 2022 advised the house had a 'normal indoor environment' and did not require further remediation[270].

   [270] Exhibit 1, page 975. 

3. The invoices listed by Ms Cairnes in relation to works performed from November 2022 until April 2023 (when Ms Cairnes said they resumed residence inside the house) total approximately $47,300.[271]  This included works not related to a complaint in these proceedings and works for which we have found Ventura Homes is not liable.

   [271] Exhibit 4, Schedule 4.5. 

4. By contrast, Ms Cairnes' total claim for compensation in relation to the mould exceeded $128,000.[272]  This figure does not include repairs of the building defects nor expenses which might be comprised in a costs application (such as expert evidence and legal fees).

   [272] This figure is drawn from Items 3.2, 3.3, 3.4.3, 3.4.4 and 4.4 on page 1 of Exhibit 4.  We note differing totals may be drawn from adding individual items in Exhibit 4 or from the schedules in Exhibit 1 and the Applicant's Closing Written Submissions lodged 8 July 2024.

5. Ms Cairnes had the right to choose her responses to the situation.  That did not mean Ventura Homes had an unlimited obligation to fund those choices. 

Calculation of the amount

1. Without intending any disrespect to Ms Cairnes, we do not consider it was reasonable and necessary for Ms Cairnes and her children to spend over two years in alternative accommodation, particularly arrangements which included living in a caravan or tents in the front garden.  It is unclear why the 'minimum necessary' repairs were not commenced until December 2022 and the main bathroom was not repaired until late 2023.[273] 

   [273] ts 394 - 396, 12 March 2024. 

2. There is a principle that a failure to mitigate will not affect the recovery of damages where the offending conduct caused or contributed to the failure to mitigate.  That is not the case here.  There was no suggestion the actions of Ventura Homes caused or contributed to Ms Cairnes' decision to delay repair works until November 2022.[274]

   [274] We expect Ms Cairnes would have preferred Ventura Homes to organise the repair work, but that is a separate issue.

3. We are satisfied Ms Cairnes failed to reasonably mitigate her loss and damage by:

   (a)contributing to the cross-contamination; and

   (b)not commencing repair of the building defects and undertaking a mould remediation until November 2022.

4. Regardless of considerations as to mitigation, we are not satisfied it is reasonable to order compensation of mortgage and utility expenses because these would have been payable whether or not there were unremedied building defects.

5. Additionally, we cannot be satisfied it is reasonable to order compensation be paid to Ms Cairnes in relation to:

   (a)expenses for which no invoice, receipt or similar has been provided;

   (b)invoices or receipts which cannot be read or which are missing crucial information such as the amount, date or details of the goods or services supplied;[275] and

   (c)expenses which do not appear to fairly relate to loss or damage caused by the mould contamination (for example, a receipt for the purchase of balloons, helium and a 'happy birthday' banner).[276]

   [275] For example, Exhibit 1, pages 1,220, 1,283 & 1,292. 

   [276] Exhibit 1, page 1,222. 

6. We are not satisfied it would be appropriate to compensate Ms Cairnes the claimed cost of disposal and replacement of household linens, furniture and other house contents because there is no evidence this was necessary, particularly to the extent claimed by Ms Cairnes.  Dr Neumeister-Kemp, Dr Taylor and Ms Campbell agreed the house contents should be inspected and cleaned.[277]  Dr Jones recommended professional remediation.[278]  There was no evidence any item of contents was so contaminated it could not be adequately cleaned.

   [277] Exhibit 1, pages 543 & 563; Exhibit 2, pages 601 & 614; ts 161 - 162 & 177, 3 May 2024. 

   [278] Exhibit 1, page 964. 

7. We are not satisfied Ms Cairnes' costs relating to repeated purchases of cleaning products, cleaning and filtration equipment and personal protective equipment should be compensated because none of the experts suggested Ms Cairnes should undertake the mould remediation herself.  We are satisfied Ms Cairnes should be reimbursed the cost ($540) of the attempted mould clean in August 2020, as a reasonable attempt at mitigation before the first report of Dr Neumeister-Kemp.[279] 

   [279] Exhibit 1, page 1,371. 

8. Ms Cairnes filed an undated invoice from Clean & Dry Carpet Cleaning.[280]  She gave evidence this invoice was to clean her sofa, as part of an attempt to remove mould in August 2020.[281]  The invoice notes the sofa was heavily stained and had 'lots of pet hair', which might be unsurprising when a household contains two children and pets.  It may mean the charge relates at least partly to dealing with the staining and hair rather than any mould.  Ms Cairnes stated this invoice did not relate to carpets and she did not at that time have the carpet cleaned.[282]  However, the invoice includes the comment 'colour variation in carpet'.  We are not satisfied the evidence establishes Ms Cairnes should be reimbursed the cost of this invoice.

   [280] Exhibit 1, pages 1,212 & 1,373. 

   [281] ts 343 - 344, 1 September 2023. 

   [282] ts 343, 1 September 2023. 

9. We consider Ms Cairnes should be reimbursed the costs of the final mould remediation in December 2022.  Unfortunately, Ms Cairnes did not file a quote or invoice from Loss Response.  We are satisfied the evidence establishes (and Ventura Homes did not dispute) the work was performed.[283]  Ms Cairnes stated in her schedules the cost of the remediation was $2,500 which was paid on 12 December 2022.[284]  In view of the evidence as to the possible cost of remediation, we consider it is reasonable to order compensation in that sum. 

   [283] Exhibit 1, page 980; Exhibit 4, page 42. 

   [284] Exhibit 1, page 1191; Exhibit 1, page 5. 

10. We also consider it reasonable for Ms Cairnes to be compensated the cost for cleaning the blinds ($860) and the post remediation verification ($2,261.04).[285]

    [285] Exhibit 1, pages 1,203 & 1,204. 

11. There are two invoices for the replacement of bedroom carpets dated 17 August 2020 and 8 November 2022.[286]  None of the building or mould experts recommended the replacement of carpet and we are not satisfied there should be compensation of these amounts.

    [286] Exhibit 1, pages 1,199, 1,210 & 1,380. 

12. We are satisfied it is appropriate to allow Ms Cairnes' to claim for compensation in relation to alternative accommodation, limited to one month.  Had Ms Cairnes and her family been living in the house, it would have been appropriate for them to stay elsewhere during the repair and mould remediation works.  As observed above, we consider there was a failure to mitigate in not attending to the repairs earlier, and it was not reasonable or necessary for Ms Cairnes to spend over two years in alternative accommodations.

13. The best evidence of the cost of short-term accommodation in the latter part of 2020 is the Corporate Traveller invoice dated 20 July 2020 which indicates it cost $6,414.40 for Ms Cairnes and her children to reside in a Stayz facility for 28 days.[287]  We will allow the sum of $6,000.

    [287] Exhibit 1, pages 1,216 - 1,217. 

14. On the basis of our findings in relation to Ms Cairnes' claims regarding alternative accommodation, we are not satisfied it is appropriate to reimburse her the costs relating to moving between different accommodations.[288]

    [288] Exhibit 1, pages 1,237, 1,243, 1,295 & 1,296. 

15. Ms Cairnes filed scans of receipts from Kmart, Spotlight, My Pet, Target, Bet & Less, The Reject Shop, Officeworks, Bunnings, Autobarn, Super Cheap Auto, Ikea, Anaconda, BCF and the uniform shop of a primary school.  Ms Cairnes did not explain why these expenses should be reimbursed by Ventura Homes, save that they were costs related to the many changes in accommodation, including caravan and camping supplies.[289]  Without more we are not satisfied these costs related fairly to the costs of alternative accommodation.  We would not be minded to order compensation of these receipts in any event, as the costs would not have been incurred had repairs been attended to more promptly.

    [289] ts 321, 1 September 2023; ts 426 - 427, 12 March 2024. 

Conclusion

1. For the reasons described above, we consider it appropriate to order Ventura Homes pay compensation to Ms Cairnes in the sum of $30,787.94.

Orders

The Tribunal orders:

CC 976/2020

1.In relation to complain items 2A and 2B:

(a)Pursuant to s 51(2)(a) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), paragraphs 2(a) and 2(b) of the orders of the Tribunal dated 16 July 2020 in CC 493/2020 are revoked.

(b)Pursuant to s 51(2)(b) and s36(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), the respondent must pay the sum of $2,213.72 to the applicant within 28 days of the date of this order.

2.Pursuant to s 46(1) of the State Administrative Tribunal Act 2004 (WA) the applicant has leave to withdraw that part of complaint item 4 relating to the gradient of the ensuite bathroom floor and that part of item 4 is dismissed pursuant to s 46(2) of the State Administrative Tribunal Act 2004 (WA).

3.Pursuant to s 38(1)(b) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), in relation to complaint item 2C and the balance of complaint item 4, the Tribunal declines to make a building remedy order and those items are dismissed.

CC 1588/2020

1.Pursuant to s 38(1)(a) and s 36(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), in relation to complaint items 1, 2 and 4, the respondent must pay the sum of $4,000 to the applicant within 28 days of the date of this order.

2.Pursuant to s 46(1) of the State Administrative Tribunal Act 2004 (WA) the applicant has leave to withdraw complaint item 3 and that item is dismissed pursuant to s 46(2) of the State Administrative Tribunal Act 2004 (WA).

CC 196/2021

1.Pursuant to s 38(1)(a) and s 36(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), in relation to complaint item 1 the respondent must pay the sum of $12,161.04 to the applicant within 28 days of the date of this order.

2.Pursuant to s 46(1) of the State Administrative Tribunal Act 2004 (WA) the applicant has leave to withdraw complaint item 2 and that item is dismissed pursuant to s 46(2) of the State Administrative Tribunal Act 2004 (WA).

CC 38/2022

1.Pursuant to s 38(1)(a) and s 36(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), in relation to complaint items 1A, 1B, 1D and 3 the respondent must pay the sum of $10,100 to the applicant within 28 days of the date of this order.

2.Pursuant to s 46(1) of the State Administrative Tribunal Act 2004 (WA) the applicant has leave to withdraw complaint items 1C and 4 and those items are dismissed pursuant to s 46(2) of the State Administrative Tribunal Act 2004 (WA).

3.Pursuant to s 38(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), in relation to complaint items 1, 1E, 2 and 5, the Tribunal declines to make a building remedy order and those items are dismissed.

CC 39/2022

1.Pursuant to s 38(1)(a) and s 36(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), in relation to complaint items 1 and 7 the respondent must pay the sum of $2,313.18 to the applicant within 28 days of the date of this order.

2.Pursuant to s 46(1) of the State Administrative Tribunal Act 2004 (WA) the applicant has leave to withdraw complaint items 2, 3, 4, 5, 6 and 8 and those items are dismissed pursuant to s 46(2) of the State Administrative Tribunal Act 2004 (WA).

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

MS N Oldfield, MEMBER

27 SEPTEMBER 2024