CAPT and SINCLAIR
[2022] WASAT 6
•19 JANUARY 2022
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION: CAPT and SINCLAIR [2022] WASAT 6
MEMBER: MS C CONLEY, MEMBER
MR R WOODFORDE, SESSIONAL MEMBER
HEARD: 21 OCTOBER 2021
DELIVERED : 19 JANUARY 2022
FILE NO/S: CC 1337 of 2021
BETWEEN: NATALIE CAPT
Applicant
AND
JOHN SINCLAIR
Respondent
Catchwords:
Building Services (Complaint Resolution and Administration) Act 2011 (WA) - Building service complaint referred to Tribunal - Whether regulated building service was not carried out in a proper and proficient manner or is faulty or unsatisfactory - Building remedy order
Legislation:
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 36, s 36(1)(a), s 36(1)(b), s 36(1)(c), s 38, s 38(1)(a), s 38(2)
Building Services (Registration) Act 2011 (WA), s 7
Home Building Contracts Act 1991 (WA), s 3, s 3(1)
Home Building Contracts Regulations 1992 (WA), reg 2A(a)
State Administrative Tribunal Act 2004 (WA), s 32
Result:
Application allowed
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | In Person |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Diploma Construction (WA) Pty Ltd v South Central WA Pty Ltd [2015] WASC 289
Gemmill Homes Pty Ltd v Sanders [2018] WASC 179
Holman and W&D Moffatt Pty Ltd [2016] WASAT 105
Nelson v Mardesic (1999) 22 SR (WA) 42
Northcott and Realgold Corporation Pty Ltd (ACN 117 580 560) [2020] WASAT 72
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
In May 2020 the applicant and her husband engaged the respondent to install pavers around their newly installed fibreglass swimming pool (pool).
During the installation, a row of pavers was installed on the edge of the pool (header course).
In November 2020 the pavers comprising the header course began to loosen and lift to the extent that all of these pavers debonded from the edge of the pool.
The applicant complained to the respondent. However, the respondent alleged that he was not responsible and blamed poor pencil compaction for the problem.
In May 2021 the applicant lodged a complaint with the Building Commissioner in respect of the paving work carried out by the respondent.
In August 2021 the Building Commissioner referred the complaint to the Tribunal for determination.[1]
Issues for determination
[1] Exhibit 1, pages 11 and 84.
The issues for determination by the Tribunal are:
a)whether the paving work undertaken by the respondent was a regulated building service;
b)whether the paving work was not carried out in a proper and proficient matter or is faulty or unsatisfactory; and
c)whether the Tribunal should make a remedial works order or an order for the payment of the costs of carrying out the remedial works and, if the latter, what amount should be awarded.
Tribunal proceedings
A final hearing in relation to this matter was held on 21 October 2021.
The applicant contended that the respondent had not used the correct adhesive. There was also an issue raised at the hearing as to whether the respondent should have used a silicone bead.
The respondent contended that the pavers had debonded from the edge of the pool because of poor pencil compaction undertaken after the installation of the pool and prior to the installation of the pavers.
The applicant gave evidence that:
a)in May 2020 the applicant and her husband purchased a pool through Aquatic Leisure Technologies Pty Ltd (Aqua Technics) and the pool was installed around 13 May 2020;[2]
b)they got some quotes to get the paving done and they went with the respondent;[3]
c)after the pool was installed the area was backfilled and pencil compacted;[4]
d)in November 2020 the pavers started lifting one by one;[5]
e)all the pavers had come off the edge of the pool;[6]
f)the pavers that had not been dislodged were all loose;[7]
g)there was no subsidence in the row of pavers next to the header course and that was the same all around the pool;[8]
h)the photographs of the pool (at pages 92, 93, 94 and 95 of Exhibit 1) were taken the week before the hearing;[9]
i)the respondent mentioned putting silicone around the top of the fibreglass pool underneath the bullnose after he finished the job but it was not in the quote;[10] and
j)the respondent told the applicant that the problem with the pavers was due to the compacting and Aqua Technics told the applicant that the adhesive used was not the correct adhesive;[11]
[2] ts 6, 21 October 2021.
[3] ts 6, 21 October 2021.
[4] ts 7, 21 October 2021.
[5] ts 10, 21 October 2021.
[6] ts 12, 21 October 2021.
[7] ts 13, 21 October 2021.
[8] ts 12, 46 and 47, 21 October 2021.
[9] ts 12, 21 October 2021.
[10] ts 1617, 21 October 2021.
[11] ts 10, 21 October 2021.
The applicant's evidence outlined above was not contested. I therefore accept that evidence.
The applicant's husband gave evidence that:
a)two pavers were wobbly initially and then all of them;[12]
b)the situation became worse and worse and they could not walk on any pavers around the pool;[13]
c)only the pavers on the fibreglass were wobbly;[14] and
d)the other pavers had not sunk.[15]
[12] ts 18, 21 October 2021.
[13] ts 19, 21 October 2021.
[14] ts 19, 21 October 2021.
[15] ts 20, 21 October 2021.
The evidence of the applicant's husband outlined above was not contested. I therefore accept that evidence.
The respondent gave evidence that:
a)when he was measuring for the job, the sand gave way to the extent of 200-300 millimetres and he lost his footing;[16]
b)he spoke to the applicant and her husband and they were happy for him to go ahead and do the job for them;[17]
c)he put the capping on the edge of the pool first and glued all that down using Davco adhesive;[18]
d)he compacted around the pool and ran his compactor around a good six or seven times before he put the cracker dust down;[19]
(e)he put the cracker dust down and compacted that in layers two or three times to bring it up to the height of the bullnosing;[20]
(f)he then laid the pavers;[21] and
(g)he then compacted again.[22]
[16] ts 2324, 21 October 2021.
[17] ts 23, 21 October 2021.
[18] ts 25, 21 October 2021.
[19] ts 2425, 21 October 2021.
[20] ts 2425, 21 October 2021.
[21] ts 25, 21 October 2021.
[22] ts 2526, 21 October 2021.
The evidence of the respondent outlined above was not contested. I therefore accept that evidence.
At the directions hearing on 14 September 2021, the parties were told by the presiding member that if they intended to lead evidence from a witness then they needed to arrange for that individual to come to the Tribunal to give evidence.[23] Further, when the date for the hearing was set, both parties agreed that that was a day that they could attend for a hearing with their witnesses.[24]
[23] ts 79, 14 September 2021.
[24] ts 7, 14 September 2021.
However, at the hearing, neither party called any expert witnesses to give evidence in support of his or her case.
Although the Tribunal is not bound by the rules of evidence,[25] there must be evidence upon which the Tribunal may make findings of fact. The failure of the parties to call any expert witnesses to give evidence has made the task of making findings of fact, and accepting or rejecting the respective contentions of the parties, more difficult.
Legislative framework
[25] State Administrative Tribunal Act 2004 (WA), s 32.
Section 36 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) provides:
(1)A building remedy order consists of one of the following
(a)an order that a person who carried out a regulated building service remedy the building service as specified in the order;
(b)an order that a person who carried out a regulated building service pay to an aggrieved person such costs of remedying the building service as the Building Commissioner or State Administrative Tribunal, as the case requires, considers reasonable and specifies in the order;
(c)an order that a person who carried out a regulated building service pay to an aggrieved person a sum of money specified in the order to compensate the aggrieved person for the failure to carry out the building service in a proper and proficient manner or for faulty or unsatisfactory building work.
(2)A building remedy order may require that the order be complied with within a time specified in the order.
(3)A person who is not a building service contractor may arrange for a building service to be carried out for the purpose of compliance by that person with a building remedy order referred to in subsection (1)(a) despite the Building Services (Registration) Act 2011 section 7.
Section 38 of the BSCRA Act provides:
(1)If the Building Commissioner refers a building service complaint to the State Administrative Tribunal, the Tribunal may -
(a)if the Tribunal is satisfied that the regulated building service that is the subject of the building service complaint has not been carried out in a proper and proficient manner or is faulty or unsatisfactory, deal with the building service complaint by making a building remedy order; or
(b)otherwise, decline to make a building remedy order.
(2)The State Administrative Tribunal cannot make a building remedy order requiring a respondent who is not a registered building services provider -
(a)to do any work of a value estimated by the Tribunal to exceed the prescribed amount; or
(b)to pay any amount exceeding the prescribed amount,
unless
(c)the order is made in respect of a building service that has been carried out by the respondent in contravention of the Building Services (Registration) Act 2011 section 7; or
(d)the respondent consents to the order being made.
(3)Unless a greater amount is prescribed by the regulations, in subsection (2) the prescribed amount is $500,000.
(4)Nothing in this section prevents a building service complaint from being dealt with through a compulsory conference or mediation process under the State Administrative Tribunal Act 2004.
Whether the paving works were a regulated building service
The term 'regulated building service' is defined in s 3 of the BSCRA Act as follows:
regulated building service means any of the following -
(a)a building service carried out by a registered building service provider or an approved owner-builder;
(b)home building work that is -
(i)carried out by a person for another person under a home building work contract or other contract or arrangement for gain or reward; and
(ii)not carried out for a person who is in turn obliged to perform the work under another contract;
(c)any other service or work prescribed for the purposes of this definition;
The term 'home building work' means:
the whole or part of the work of -
(a)constructing or re-constructing a dwelling including an existing dwelling and/or strata/community title dwelling; or
(b)placing a dwelling on land; or
(c)altering, improving or repairing a dwelling, including a strata/community title dwelling; or
(d)constructing or carrying out any associated work in connection with -
(i)any work referred to in paragraph (a) or (b); or
(ii)an existing dwelling, including a strata/community title dwelling;[26]
[26] See the definition of 'home building work' in s 3 of the BSCRA Act and s 3(1) of the Home Building Contracts Act 1991 (WA).
The term 'associated work' includes 'site works, swimming pools, spas, pergolas, carports, garages, sheds, fencing, retaining walls, paving, driveways, landscaping and other like works.'[27]
[27] Home Building Contracts Act 1991, s 3(1).
The term 'home building work contract' means a contract between a builder and an owner for the performance by the builder of home building work,[28] but does not include, relevantly for present purposes, a contract for the performance of home building work if, inter alia, the amount stated in the contract for the building work is $7,500 or less.[29]
[28] Home Building Contracts Act 1991, s 3.
[29] Home Building Contracts Regulations 1992 (WA), reg 2A(a).
The description of the building work carried out by the respondent is set out in a tax invoice from A.J's Brickpaving and Landscaping (the respondent's business) dated 14 May 2020.[30] Relevantly for present purposes, the building work included:
a)laying of storm stone paving 18 metres around pool area;
b)preparation around pool area and supply of cracker dust; and
c)bullnosing installed to edge of pool (16.5 lineal metres) (paving work).
[30] Exhibit 1, page 20.
The definition of 'associated work' expressly refers to paving. Accordingly, we find that the paving work was 'associated work'.
It was not in dispute that the paving work was carried out in relation to the pool at the applicant's residence.
The price paid for the paving work is stated in the tax invoice as the sum of $3,652. Given that the contract price for the paving work was less than $7,500, we find that the paving work was not home building work carried out by a person for another person under a home building work contract. However, we find that the paving work was carried out in connection with an existing dwelling and therefore constitutes a regulated building service, being home building work carried out by the respondent for the applicant under a contract (other than a home building contract) for reward.
Whether the regulated building service was carried out in a proper or proficient manner or is faulty or unsatisfactory
In Gemmill Homes Pty Ltd v Sanders [2018] WASC 179 (Gemmill Homes) Smith J held:
… if the Tribunal finds that a regulated building service (that is the subject of a building service complaint) has not been carried out in a proper and proficient manner, or is faulty or unsatisfactory, the Tribunal is empowered to make a building remedy order on referral of a building service complaint to it made by the Building Commissioner
Therefore, it follows that in making a building remedy order, the Tribunal must determine what work (the subject of the building service) has not been carried out in a proper and proficient manner or is faulty or unsatisfactory. These are findings of fact that the Tribunal must make. In making these findings, the Tribunal is obliged to have regard to any matters relevant to forming the requisite option prescribed by s 38(1)(a) of the Complaint Resolution Act.[31]
[31] At [118]-[119].
In Northcott and Realgold Corporation Pty Ltd (ACN 117 580 560) [2020] WASAT 72, the phrase 'has not been carried out in a proper and proficient manner or is faulty or unsatisfactory' was said by the Tribunal to be a broad expression which incorporates two distinct limbs, such that:
a)the description 'in a proper and proficient' attaches to the manner in which the regulated building service has been carried out;
b)the phrase 'is faulty or unsatisfactory' makes it clear that this element attaches to the regulated building service itself (noting the use of the present tense 'is') rather than to the manner in which it 'has been carried out' (the latter using the present perfect tense);[32]
c)the limbs are further distinguished by the use of a negative criterion in the first limb ('the regulated building service … has not been carried out in a proper and proficient manner') and a positive criterion in second limb ('the regulated building service … is faulty or unsatisfactory').[33]
[32] See also Holman and W&D Moffatt Pty Ltd [2016] WASAT 105 at [40] per Senior Sessional Members Raymond and Affleck and Diploma Construction (WA) Pty Ltd v South Central WA Pty Ltd [2015] WASC 289 at [31] per Mitchell J.
[33] At [45].
There are a number of photographs of the pool and surrounding area. [34] The photographs show pavers comprising the header course which have completely debonded from the edge beam of the pool. They also show that approximately three quarters of the pavers comprising the header course have been placed upside down on the row of pavers immediately behind the header course. Further, the photographs show a sandy coloured substance which looks like cement (adhesive) on the underside of each of the pavers which have been turned upside down and on some parts of the edge beam of the pool.
[34] Exhibit 1, pages 64, 69, 75, 81, 92, 93, 94 and 95.
There are a number of close-up photographs of the pavers and the edge beam of the pool.[35] Again, the adhesive is clearly visible on the underside of the pavers. Very little of the adhesive remains on the edge beam of the pool.
[35] Exhibit 1, pages 26 and 28.
There is nothing in any of the photographs which provides evidence of subsidence in the row of pavers behind the header course.
At the hearing, the respondent gave evidence that silicone is the bead that is put inside the pool after the bullnose is installed to stop water affecting the adhesive,[36] but that he had not included the silicone bead in the quote for the paving work.[37]
[36] ts 3539, 21 October 2021.
[37] ts 40, 21 October 2021.
The respondent also gave evidence that, after the paving work was finished, he asked the applicant whether she wanted to have a silicone bead installed but the applicant refused.[38] Mr Sinclair accepted that he did not inform the applicant and her husband that not putting the silicone in would make the paver wobbly.[39]
[38] ts 1617 and 3940, 21 October 2021.
[39] ts 39, 21 October 2021.
The respondent conceded that he should have allowed for the cost of a silicone bead when he provided the applicant with a quote for the paving. This is evident from the following exchange which took place during the hearing:
Woodforde Mr: So my question for you is do you believe that it should have had the silicone joint around the edge?
Sinclair, Mr: It's like a fifty-fifty thing. Like, some people prefer to have it done because then they ensure that any (indistinct) or that the water is not constantly hitting into the adhesive which can cause that-with the chemicals in the pool to cause it to lift but if you have it sealed, that's -the- the seal and that's in that tube that you run around from inside the pool with your finger underneath the bullnose can tolerate the chemicals in the pool. That's what it's ---
Woodforde Mr: So ---
Sinclair, Mr: Gives it that extra protection pretty much.
Woodforde Mr: I don't disagree with you. I guess my question is do you think it's something that you should have raised with them before you prepared the quote or ---
Sinclair, Mr: Yes.
Woodforde Mr: --- you know, before you did the work? As you just said, you tried to do other things to make sure you were doing a better job than normal such as the use cracker dust, such as notch trowel rather than tube, etcetera, etcetera but is it possible that the one factor-the silicone bead, I'm not suggesting that it's (indistinct) that is something that, you know ---
Sinclair, Mr: Wouldn't have helped.
Woodforde Mr: --- it wouldn't have been ---
Sinclair, Mr: Yes.
Woodforde Mr: --- a huge expenses.
Sinclair, Mr: Yes, yes.
Woodforde Mr: It's something that you probably should have just allowed for in the first place for ---
Sinclair, Mr: And - yes.
Woodforde Mr: Even if you think there could have been an issue ---
Sinclair, Mr: Yes.
Woodforde Mr: --- pointed out them, well, you know, either I can't do the job because you don't want to do this or - you know, make clear in writing to them whether - yes-this is what could be a consequence of not doing that. Would that be fair assessment?
Sinclair, Mr: Definitely. Yes, yes, yes. I would - I definitely - yes – would obviously recommend that anyone further ahead - that's 100 per cent. Yes.[40]
[40] ts 3334, 21 October 2021.
Further, when cross-examined by the applicant about whether the silicone should have been mentioned in the quote, the respondent said that 'I think it maybe should have been mentioned to put in before in the price and just have it done all in one. Yes.'[41]
[41] ts 40, 21 October 2021.
Finally, the respondent indicated to the Tribunal that he proposed to include the price of the silicone bead in every single job from now on.[42]
[42] ts 42, 21 October 2021.
We are satisfied on the evidence before the Tribunal and find that the installation of the header course was not carried out in a proper and proficient matter because the respondent failed to insert a silicone bead around the edge of the header course.
We are also satisfied on the evidence before the Tribunal and find that the paving comprising the header course is unsatisfactory because the pavers have completely debonded from the edge of the pool beam and are unsafe to walk on.
The applicant contended that the respondent had not used the correct adhesive to glue the header course to the pool. The applicant provided three emails to the Tribunal in support of her contention.
The first email was an email to the applicant from Jason Wheatley, the Installation Manager at Aqua Technics dated 22 March 2021. In that email, Mr Wheatley states relevantly as follows:
… as discussed the dislodgement of the header course from the edge beam is due to poor installation. The contractor which you have engaged to carry out the works has used a type of grout/cement mixture to bond the header to the edge beam, as seen by the attached photos this has not bonded to the gelcoat on the pool. It is industry practice to use a flexible polyurethane based adhesive when installing a header course to Fibreglass swimming pools. It is also recommended that when installing the header the adhesive is applied with two to three solid beads all the way around the pool to prevent any water from passing between the header course and the pool to the outside surrounds of the pool which can cause the paving to move.
Due to the way in which the header course has been installed it is most likely that water has passed to behind the pool causing minor movement in the first row of paving behind the header. While this is the most likely cause, Shane from Consolidated Enterprises has offered to recompact the area as a gesture of goodwill as we are unable (sic) ascertain the exact cause of the movement due to the way in which the header has been installed as previously mentioned.
It is also important to note that if there was an issue with the pencil compaction this would in no way impact on the installation of the header course, it would only impact on the paving behind the header not the header itself as suggested by your paving contractor. We are of the opinion that the issues with the header course and paving are due to poor installation.[43]
[43] Exhibit 1, page 36.
The second email was to the applicant from Mike Jenkin, Project Designer and I.T. Support Officer at Freostone dated 14 October 2021. In response to a question as to why the pavers had come unstuck from the applicant's fibreglass pool, Mr Jenkin stated:
I'm not sure what's been used to stick your capping down but we recommend using the polyurethane glue/sealant we sell, it's been tested by many contractors and have proven to work.
When sticking to a fibreglass pool, you do not want to use tile adhesive as it doesn't bond that well to it.[44]
[44] Exhibit 1, page 90.
The third email was to the applicant from Shane Chen of Consolidation Pty Ltd (the company which carried out the pencil compaction) dated 17 October 2021. In that email, Mr Chen stated that the adhesive glue was 'inadequate'.[45]
[45] Exhibit 2.
We do not accept the evidence of Mr Chen. This is for five reasons:
First, Mr Chen did not personally inspect the pavers but relied on an inspection carried out by a representative of Consolidated Enterprises Pty Ltd.
Second, Mr Chen's evidence appears to have been based on an assumption that the first row of paving behind the header course had sunk which was contrary to the evidence of the applicant and her husband.
Third, there was no evidence as to whether Mr Chen had the expertise to comment on the adequacy of the adhesive used by the respondent.
Fourth, Mr Chen did not particularise why he considered that the adhesive used was 'inadequate'.
Fifth, Mr Chen was not called to give evidence at the hearing and was not available for cross-examination by the respondent.
We do not accept the evidence of Mr Jenkin. This is for four reasons.
First, there is no evidence that Mr Jenkin personally inspected the pavers, and it is clear from Mr Jenkin's email that he did not know what had been used to stick the capping down.
Second, Mr Jenkin was simply stating what adhesive his company recommended rather than mandated.
Third, there was no evidence as to whether Mr Jenkin had the expertise to comment on the adequacy of the adhesive used by the respondent.
Fourth, Mr Jenkin was not called to give evidence at the hearing and was not available for cross-examination by the respondent.
We do not accept the evidence of Mr Wheatley. This is for three reasons.
First, Mr Wheatley's evidence appears to have been based on an assumption that there was minor movement in the first row of paving behind the header which was contrary to the evidence of the applicant and her husband.
Second, there was no evidence as to whether Mr Wheatley had the expertise to comment on the adequacy of the adhesive used by the respondent.
Third, Mr Wheatley was not called to give evidence at the hearing and was not available for cross-examination by the respondent.
The respondent gave evidence at the hearing about the adhesive he used. He stated that as far as he knew with other people he has worked with, 'everyone uses the same thing' and that:
… You can use tubes. You can use adhesive to trowel it on. You've got two options of how you can apply adhesive to the edge of the pool.[46]
[46] ts 43, 21 October 2021.
Further, the respondent gave evidence that he had used the same adhesive on other fibreglass pools and had never had any issues.[47]
[47] ts 25 and 37, 21 October 2021.
Given that we have not accepted the evidence of Mr Chen, Mr Jenkin and Mr Wheatley, we accept the respondent's evidence and find that the adhesive he used was an adhesive he had used previously without any issues.
The respondent contended that the pavers had debonded due to subsidence caused by poor pencil compaction. The respondent pointed to three things in support of his contention. First, the respondent gave evidence that he lost his footing when he was measuring for the job.[48] Second, the respondent queried why Aqua Technics would offer to come back to do the pencil compaction if they had no part in the problem.[49] Third, the respondent gave evidence that the row of pavers had gone down a few millimetres.[50]
[48] ts 23, 21 October 2021.
[49] ts 17, 21 October 2021.
[50] ts 31, 21 October 2021.
We reject the respondent's contention that the pavers had debonded due to subsidence caused by poor pencil compaction. This is for the following reasons.
First, the fact that the respondent lost his footing when he was measuring for the job is not necessarily attributable to poor pencil compaction since the applicant was not certain that the pencil compaction had been undertaken at that point in time.[51] Further, part of the services for which the respondent was contracted was for the preparation of the area surrounding the pool which, on the evidence of the respondent, included compaction.
[51] ts 45, 21 October 2021.
Second, no independent expert evidence was called by the respondent in support of his contention that the header course had debonded due to subsidence in the row of pavers behind the header course.
Third, although the applicant had stated in a number of documents that there was subsidence in the row of pavers behind the header course,[52] at the hearing both the applicant and her husband were adamant that there was no such subsidence and their evidence at the hearing was supported by the photographs of the pavers and the pool and its surrounds. Further, even if there had been subsidence, this would have been the responsibility of the respondent because, under the contract between the applicant and the respondent, the respondent was responsible for preparing the area surrounding the pool and supplying the cracker dust.
[52] Exhibit 1, pages 4 and 14; Exhibit 3.
Fourth, although the applicant agreed that Aqua Technics had advised her that Consolidated Enterprises Pty Ltd had offered to recompact the area surrounding the pool, she indicated that the offer was for their customer service and a goodwill gesture.[53] Further, no evidence was given at the hearing that the offer to recompact the area surrounding the pool had been accepted or that any re-compaction had been done.
[53] ts 17, 21 October 2021. See also Exhibit 1, page 36.
Fifth, when it was pointed out to the respondent that the cracker dust on the edge of the pool was at a level that was still adjacent to the other stuff supporting the second course of pavers and that this gave the impression there was no subsidence at all, the respondent agreed.[54] Further, the respondent was not able to offer an explanation as to why it looked like the second row of pavers had not subsided at all.
The making of a building remedy order
[54] ts 32, 21 October 2021. See also Exhibit 1, pages 92-95.
The prerequisite to the making of a building remedy order by the Tribunal is that the Tribunal must be satisfied that the regulated building service that is the subject of the complaint has not been carried out in a proper and proficient manner, or is faulty, or unsatisfactory.[55]
[55] Gemmill Homes at [106] per Smith J.
If the Tribunal is satisfied that the regulated building service that is the subject of the complaint has not been carried out in a proper and proficient manner, or is faulty, or unsatisfactory, then the Tribunal has a discretion as to what type of building remedy order is made. Although there are some limitations on the making of a building remedy order set out in s 38(2) of the BSCRA Act, those limitations are not relevant for present purposes.
Section 36 of the BSCRA Act makes provision for three types of building remedy order.[56] The first is a remedial work order. The second is an order for the payment of reasonable costs of remedying the building services work order. The third is an order for the payment of compensation.
[56] Gemmill Homes at [104] per Smith J.
There is no right or requirement on a party to a complaint to elect whether the builder undertakes the remedial work.[57]
[57] Gemmill Homes at [124] and [134] per Smith J.
The Tribunal has no power to compel an owner to allow access to a site to enable work to be carried out in accordance with a building remedy order made pursuant to s 36(1)(a) of the BSCRA Act.[58] If there is evidence that such access is likely to be denied then that would be a relevant matter of fact that the Tribunal could take into account.[59]
[58] Gemmill Homes at [135] per Smith J referring to Nelson v Mardesic (1999) 22 SR (WA) 42.
[59] Gemmill Homes at [135] per Smith J.
As outlined in [40] and [41] above, we have found that the installation of the header course was not carried out in a proper and proficient manner and that the paving comprising the header course is unsatisfactory. Accordingly, the prerequisite to the making of a building remedy order has been satisfied.
In an email to the Building Commission dated 15 July 2021, the applicant and her husband gave a number of reasons as to why they did not want the respondent to do any further work.[60] First, they did not trust his work would meet the required professional standards. Second, they did not feel confident that the respondent would use the correct products/adhesives. Third, they did not trust the cleaning of the paving would be done thoroughly and they were of the view that the pavers should be replaced. Fourth, they were concerned about the reliability of the respondent as he had not taken responsibility for his work and had ignored their messages.
[60] Exhibit 1, page 62.
At the directions hearing held on 14 September 2021, the applicant said that she did not want the respondent to come out to her property anymore and that she wanted to be compensated or reimbursed for the paving work.[61]
[61] Exhibit 1, pages 99 and 100.
At the hearing the respondent stated that that he was 'not allowed at the premises'.[62]
[62] ts 53, 21 October 2021.
Given that the respondent is not allowed at the applicant's premises, we consider that it would be futile to make a remedial work order requiring the respondent to remedy the header course. Accordingly, we have decided that it is appropriate to make an order for the costs of remedying the building service
Pursuant to section 36(1)(b) of the BSCRA Act, the Tribunal may only make an order in respect of the costs of remedying the building service which the Tribunal considers reasonable.
The applicant originally sought compensation in the sum of $2,728 made up as follows:
a)$624 for replacement capping;
b)$124 for replacement corner capping;
c)$935 for the laying of the capping and corner capping; and
d)$1,045 for the laying of the other pool pavers.
However, at the hearing, the applicant indicated that she did not intend to pursue the claim for the laying of the pool pavers around the pool area.[63]
[63] ts 47 and 50, 21 October 2021.
During the hearing, the respondent questioned the need to replace the capping and corner capping. He gave evidence that the pavers could be stacked upside down and that a trowel could be run on the bottom of the paver and that the adhesive would come off.[64] The respondent added that it would take someone an hour to clean the pavers.[65]
[64] ts 5354, 21 October 2021.
[65] ts 53, 21 October 2021.
In an email dated 19 October 2021 to Mr Jenkin, the applicant asked Mr Jenkin whether he thought it was possible for the cement to be removed off the pavers and for the pavers to be reused.[66] Mr Jenkin responded by email dated 19 October 2021 and stated that '[i]t will be very difficult to remove what's on the bottom of those capping without damaging or braking (sic) them'.[67]
[66] Exhibit 3.
[67] Exhibit 3.
Although Mr Jenkin was not called to give evidence at the hearing and was not available for cross-examination by the respondent, he works at the company which supplied the pavers to the applicant. Accordingly, we give some weight to what he says in his email at least to the extent that he raises the possibility that one or more of the pavers could be damaged if the adhesive is removed.
Although the respondent offered to remove the adhesive from the pavers, he noted that he was not permitted on the applicant's property.[68] Therefore, it is not possible for the respondent to attempt to remove the adhesive from the pavers. Further, there is no evidence before the Tribunal that another person would be willing or able to remove the adhesive from the pavers.
[68] ts 53, 21 October 2021.
If the Tribunal made an allowance for the removal of the adhesive from the pavers and one or more of the pavers are damaged during that process, then the applicant would be at a disadvantage since no allowance would have been made for their replacement.
Accordingly, we consider that it is reasonable to make allowance for the capping and corner capping to be replaced.
During the hearing, the applicant referred to two items in a tax invoice from Freostone dated 15 February 2020.[69] The first item was for the replacement capping for $624 (including GST). The second item was for the replacement corner capping for $124 (including GST) respectively.
[69] Exhibit 1, pages 22 and 24.
We consider that the sum of $748 for the replacement capping and corner capping is reasonable because this is what the applicant originally paid for those pavers in 2020 as evidenced by the tax invoice.
At the hearing, the applicant referred to an item in a tax invoice dated 14 May 2020 from A.J's Brickpaving and Landscaping.[70] The item was for Bullnosing installed to edge of Pool (16.5 lineal metres) for $935 (including GST).
[70] Exhibit 1, page 20.
We consider that the sum of $935 for re-laying the pavers comprising the header course is reasonable because this is what the applicant originally paid the respondent for the laying of the pavers comprising the header course as evidenced by the tax invoice.
We will make a building remedy order that the respondent pays the applicant the sum of $1,683 for the costs of remedying the pavers comprising the header course within 28 days.
Orders
The Tribunal orders:
1.The application is granted.
2.Pursuant to s 36(1)(b) and s 38(1)(a) of the Building Services (Complaint Resolution and Administration) Act2011 (WA), the respondent shall pay the applicant the sum of $1,683 within 28 days.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS C Conley, MEMBER
19 JANUARY 2022
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