CARBONE and WA COUNTRY BUILDERS PTY LTD (ACN 105 402 140)
[2024] WASAT 64
•4 JULY 2024
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION: CARBONE and WA COUNTRY BUILDERS PTY LTD (ACN 105 402 140) [2024] WASAT 64
MEMBER: MS C CONLEY, MEMBER
MR C MARSH, SESSIONAL MEMBER
HEARD: 7 AND 8 FEBRUARY 2024
DELIVERED : 4 JULY 2024
FILE NO/S: CC 1152 of 2022
CC 1153 of 2022
BETWEEN: FORTUNATO CARBONE
First Applicant
ELENA VASILEVSKAYA
Second Applicant
AND
WA COUNTRY BUILDERS PTY LTD (ACN 105 402 140)
Respondent
Catchwords:
Building Services (Complaint Resolution and Administration) Act 2011 (WA) - Building services complaints - Whether builder failed to carry out a building service in a proper and proficient manner or whether the building service is faulty or unsatisfactory - Building remedy order
Legislation:
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(1), s 11, s 36, s 36(1), s 36(1)(a), s 36(2), s 38, s 38(1)(a), s 38(1)(b), s 43
Home Building Contracts Act 1991 (WA), s 3
Result:
Application successful in part
Category: B
Representation:
Counsel:
| First Applicant | : | Mr A Prime |
| Second Applicant | : | Mr A Prime |
| Respondent | : | Mr A Buchan |
Solicitors:
| First Applicant | : | Prime Legal Services |
| Second Applicant | : | Prime Legal Services |
| Respondent | : | Hotchkin Hanly Lawyers |
Case(s) referred to in decision(s):
Gemmill Homes Pty Ltd v Sanders [2018] WASC 179
Owners of Island Apartments Strata Plan 52597 and Pindan Pty Ltd [2017] WASAT 25
Zimowski and Ideal Homes Pty Ltd [2022] WASAT 82
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
In 2019 Mr Fortunato Carbone and Ms Elena Vasilevskaya (applicants) and WA Country Builders Pty Ltd (respondent) entered into a contract (Contract) for the construction by the respondent of their home in Esperance (Dwelling).[1] The contract price exceeded $500,000. The construction work is not complete.
[1] Exhibit 1, pages 38 - 56.
In 2021 and 2022, the applicants lodged complaints with the Building Commission with each complaint containing multiple complaint items in respect of the construction of the Dwelling.[2] These complaints were referred to the Tribunal by the Building Commissioner (Commissioner) under s 11 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRAAct).[3]
[2] Exhibit 1, pages 1 - 5 and pages 9 - 13.
[3] Applications lodged with the Tribunal on 26 August 2022. See also Exhibit 1, pages 1 - 25.
Where a building service complaint is referred to the Tribunal by the Commissioner, the Tribunal may make a building remedy order (BRO) where it is satisfied that the regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory.[4] The Tribunal may otherwise decline to make a building remedy order.[5]
[4] BSCRA Act, s 38(1)(a).
[5] BSCRA Act, s 38(1)(b).
Section 36 of the BSCRA Act makes provision for three types of BRO and the Tribunal has a discretion as to what type is made.[6] 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.
[6] Gemmill Homes Pty Ltd v Sanders [2018] WASC 179 (Gemmill Homes) at [104].
There is no right or requirement on a party to a complaint to elect whether the builder undertakes the remedial works.[7] An applicant's preference is a relevant matter for the Tribunal to consider when determining the type of BRO to make.[8]
[7] Gemmill Homes at [124] and [134].
[8] Gemmill Homes at [147].
A BRO may require that it be complied with within a timeframe specified in the order.[9]
[9] BSCRA Act, s 36(2).
Although the Tribunal has jurisdiction to make a home building work contract remedy order (HBWC remedy order) under s 43 of the BSCRA Act in respect of matters such as breach of contract, misleading or deceptive conduct, or unconscionable conduct under the Home Building Contracts Act 1991 (WA) (HBC Act), that jurisdiction does not extend to a contract for the performance of home building work where, as in this case, the contract price is $500,000 or more.[10]
[10] See the definition of 'home building work contract' in the HBC Act, s 3.
A final hearing of the application was held in the Tribunal on 7 and 8 February 2024 (Hearing) and the parties lodged closing submissions after the Hearing.[11]
[11] Applicant's Closing Submissions filed on 19 March 2024 (Applicant's Closing Submissions) and Respondent's Closing Submissions filed on 16 April 2024 (Respondent's Closing Submissions).
For the reasons which follow, the Tribunal has decided to:
(a)make a BRO in respect of complaint items 1, 2, 5, 8, 11, 21, 24, 25, 26, 27, 32 and 35 in CC 1152 of 2022;
(b)decline to make a BRO in respect of complaint items 7, 17, 20 and 36 in CC 1152 of 2022 and to dismiss these items; and
(c)make a BRO in respect of complaint items 1 and 4 in CC 1153 of 2022.
Issues for determination
The issues for determination by the Tribunal in relation to the building service complaints are as follows:
(a)Has the respondent failed to carry out the building work the subject of each complaint item in a proper and proficient manner or is the building work faulty or unsatisfactory?
(b)If the answer to (a) is in the affirmative in relation to a complaint item, what is the appropriate BRO (if any) in respect of that complaint item?
It was not in dispute between the parties that the respondent carried out a regulated building service.[12]
[12] Applicant's Closing Submissions at para 2 and Respondent's Closing Submissions at para 5.
The parties agreed that any remedial work would be carried out by the respondent since the Dwelling is not complete.[13] We have decided, in the exercise of discretion, that to the extent that we are satisfied that a complaint item has not been carried out in a proper and proficient manner, or is faulty or unsatisfactory, then a remedial works order requiring the respondent to remedy the work is appropriate. This is because the Dwelling has not been completed and the parties are in agreement that the remedial work should be undertaken by the respondent.
[13] ts 67 - 68, 7 February 2024.
Evidence and findings of fact
A summary of the relevant evidence relating to each complaint item, our findings of fact and conclusions in relation thereto are set out below at [16] - [206] and [208] - [222].
It was not in dispute between the parties and, having regard to their qualifications and/or experience, we find that:
(a)Dr Zurhaar is an expert in the field of science;[14]
(b)Mr Compton is an expert in the field of cement;[15] and
(c)Mr Machell, Mr Chamberlain, and Mr Bryers are experts in the field of building.[16]
Issue 1: Has the work, the subject of each of the complaint items, been carried out in a manner that is not proper and proficient or is the work faulty or unsatisfactory? If so, should a BRO be made?
Complaint items relating to CC 1152 of 2022
[14] Exhibit 1, page 261; ts 11, 7 February 2024.
[15] Exhibit 3; ts 36; 7 February 2024.
[16] Exhibit 1, pages 341, 388 - 399 and 490; ts 67, 7 February 2024.
There are 16 complaint items in respect of proceeding CC 1152 of 2022 We will deal with each of these complaint items in turn.
Complaint item 1
Complaint item 1 is that standard cappings rather than rolled edge cappings have been fitted to the side barge boards at the apex of the feature front roof panels, and the short barge boards where the eave linings have been eliminated.[17]
[17] Exhibit 1, page 16; Applicant's Closing Submissions Item 1 of Schedule of Complaint Items Still in Issue at Time of Final Hearing for CC 1152 of 2022 (Schedule 2).
The final plans for the Dwelling refer to 'BARGE W/- ROLLED EDGE CAPPING' in specific areas.[18]
[18] Exhibit 1, pages 59 and 61.
In their reports and the joint expert report, Mr Chamberlain and Mr Machell agreed that rolled edge barge cappings had been fitted to the edges of the roof panels above the garage and bedroom.[19] They also agreed that, subject to the requirements of the contract, the remaining cappings should be replaced to the rolled edged type.[20] At the Hearing, Mr Chamberlain and Mr Machell gave evidence which was consistent with their reports and their joint expert report.[21] Mr Bryers agreed with them. [22]
[19] Exhibit 1, pages 236 - 237, 293, 413 - 414 and 473.
[20] Exhibit 1, page 473.
[21] ts 73, 7 February 2024.
[22] Exhibit 1, page 454.
During the Hearing, the respondent through counsel agreed to replace any non-rolled edge cappings.[23]
[23] ts 74, 7 February 2024; Applicant's Closing Submissions, Item 1 of Schedule 2.); Respondent's Closing Submissions at para 7.
We accept the evidence of Mr Chamberlain and Mr Machell as it was not in dispute and is consistent with the final plans for the Dwelling. On the basis of their evidence, we are satisfied and find that:
(a)standard cappings rather than rolled edge cappings were fitted to the side barge boards, at the apex of the feature front roof panels and the short barge boards where the eave linings have been eliminated; and
(b)rolled barge cappings have now been fitted to the edges of the roof panels above the garage and bedroom but not all of the cappings have been replaced.
On the basis of the evidence of Mr Chamberlain, Mr Machell and Mr Bryers, and the concession from the respondent, we are satisfied and find that the work is faulty or unsatisfactory. This is because standard cappings were installed instead of rolled edge cappings contrary to the final plans for the Dwelling.
We are of the view that it is appropriate for a BRO to be made in respect of complaint item 1 by which the respondent is required to remove the standard cappings and replace them with rolled edge cappings in accordance with the final plans for the Dwelling.
Complaint item 2
Complaint item 2 is that foam infill strips installed beneath the roof face of the cappings fitted to the barges at the tops of the feature roof panels at the front of the residence are inappropriate as they should be non-ignitable and of material that does not retain moisture. Further, the underside of sheets each side of the valley flashings are unsealed.[24]
[24] Exhibit 1, page 16; Applicant's Closing Submissions Item 2, Schedule 2.
In the Building Remedy Report (BRO Report), Mr Bryers said that the function of the foam infill strips is to prevent the ingress of fire, as the Dwelling is in a fire zone, and water.[25] Mr Bryers was of the view that the foam strips were not fire‑resistant or moisture resistant and that the foam should be replaced with a foam strip that meets Australian Standard 1530.3 (AS 1530.3).[26]
[25] Exhibit 1, page 454.
[26] Exhibit 1, page 455.
In their reports and joint expert report, Mr Chamberlain and Mr Machell agreed that if the foam striping is combustible, then it ought not be in place.[27] Mr Chamberlain expressed the view that the foam stripping needs to be replaced if it is combustible and that the infill stripping needs to be in place as the top end of roof sheets has inadequate cover to meet the roof sheeting installation requirements.[28] Mr Machell expressed the view that what was required was to dress the edge of the verge capping down tightly into the valley portion of the corrugated profile roof sheets.[29] At the Hearing, Mr Chamberlain gave evidence which was consistent with the joint expert report[30] and Exhibit 2.[31]
[27] Exhibit 1, pages 237, 294, 329, 359 - 360, 473.
[28] Exhibit 1, page 473.
[29] Exhibit 1, page 473.
[30] ts 74 - 76, 7 February 2024.
[31] ts 74 - 75, 7 February 2024.
Subsequently, Mr Chamberlain obtained a sample of the foam infill and submitted it to Dr Zurhaar for testing. The result of that testing is that the foam infill is extremely flammable, capable of spreading and fuelling a fire and does not comply with Bushfire Attack Level (BAL) requirements.[32] Dr Zurhaar confirmed the result of the testing at the Hearing.[33]
[32] Exhibit 2.
[33] ts 64 - 65, 7 February 2024.
During the Hearing, the respondent conceded through counsel that if the foam infill is flammable, it will need to be replaced.[34]
[34] ts 76, 7 February 2024; Applicant's Closing Submissions, Item 2, Schedule 2; Respondent's Closing Submissions at para 8.
We accept the evidence contained in the Bushfire Attack Level Assessment Report,[35] the Contract Specifications,[36] the Site Classification Report from Structerre Consulting,[37] and item 23 of the Shire of Esperance Advice Notes[38] as it was not in dispute. On the basis of that evidence, we find that the property on which the Dwelling is being constructed has a Bushfire Attack Level Rating (BAL Rating) of 12.5, is in a bushfire prone area and that appropriate building measures are required to satisfy the BAL Rating.[39] This is also reflected in Item 30 of the quotation from the respondent to the applicants. [40]
[35] Exhibit 1, pages 196 - 205.
[36] Exhibit 1, at pages 69 and 232.
[37] Exhibit 1, page 206.
[38] Exhibit 1, page 121.
[39] Exhibit 1, page 206.
[40] Exhibit 1, page 28.
We accept the evidence of Dr Zurhaar and Mr Chamberlain with respect to the foam infill as it was not in dispute. On the basis of their evidence, we find that the foam infill is extremely flammable.
On the basis of the evidence of Dr Zurhaar, Mr Chamberlain, Mr Machell and Mr Bryers, and the concession from the respondent, we are satisfied and find that the work is faulty or unsatisfactory. This is because the foam infill which has been installed is extremely flammable contrary to AS 1530.3 in circumstances where the Dwelling is located on a property with a BAL Rating of 12.5 and is in a bushfire prone area.
We are of the view that it is appropriate for a building remedy order to be made in respect of complaint item 2 by which the respondent is required to replace the foam infill with a non-combustible foam infill that meets AS 1530.3 and to ensure that the noncombustible foam is installed beneath all transverse flashing and capping, beneath the sheets at the gutter lines and each side of the Vshaped gutter beneath the roof panels over the garage and bedroom 1.
Complaint item 5
Complaint item 5 is that there are gaps between some of the fascias and the walls.[41]
[41] Exhibit 1, pages 16 - 17; Applicant's Closing Submissions Item 5, Schedule 2.
In their reports and joint expert report, Mr Chamberlain and Mr Machell disagreed about whether or not there are gaps and, therefore, the appropriate remedial action.[42] Mr Chamberlain expressed the view that there are gaps, and that the gaps should be eliminated in accordance with clause 5.6.3(b) of Australian Standard 3959 (AS 3959) by refitting the fascia brackets and the foam should be noncombustible. Mr Machell expressed the view that there are no gaps.
[42] Exhibit 1, pages 240, 298 - 299, 331 - 332, 361, 364, 417 and 474.
In his report dated 3 October 2023, Mr Chamberlain took photographs of the flashing gaps and fascia wall gaps that exceed 3 millimetres by inserting a 4 millimetre drill bit in those areas where gaps exist.[43]
[43] Exhibit 2, pages 1 - 4.
At the Hearing, Mr Chamberlain and Mr Machell gave evidence which was consistent with their joint expert report.[44] Mr Chamberlain also gave evidence about the additional testing he conducted and the photographs he took, which are contained in Exhibit 2, to determine whether there were any gaps in excess of 3 millimetres.[45] Mr Chamberlain demonstrated that there are flashing gaps and fascia wall gaps that exceed 3 millimetres by inserting a 4 millimetres drill bit in those areas where gaps exist.[46]
[44] ts 76 - 87, 7 February 2024.
[45] ts 76 - 84, 7 February 2024.
[46] Exhibit 2, pages 1 - 4.
During the Hearing, there was disagreement about what remedial action was appropriate. So, Sessional Member Marsh proposed that if there is a gap over 3 millimetres, the builder just fixes it. There was general agreement with that proposal and the respondent subsequently agreed that any gaps between the fascia and the top of the brick would be remedied.[47]
[47] ts 87, 7 February 2024; Respondent's Closing Submissions at para 10.
We accept the evidence of Mr Chamberlain and find that there are some gaps between the metal fascia and walls which exceed 3 millimetres. We accept the evidence of Mr Chamberlain in preference to the evidence of Mr Machell and Mr Bryers in respect of the gaps because the tests carried out by Mr Chamberlain and the photographs contained in Exhibit 2 clearly show gaps in excess of 3 millimetres by the use of a 4 millimetre drill bit.
On the basis of the evidence of Mr Chamberlain, and the concession of the respondent, we are satisfied and find that the work is faulty or unsatisfactory. This is because there should not be gaps in excess of 3 millimetres between the metal fascia and the walls as provided in AS 3959.
We are of the view that it is appropriate for a BRO to be made in respect of complaint item 5 by which the respondent is required to remedy any gaps over 3 millimetres between the metal fascia and the walls to comply with AS 3959.
Complaint item 7
Complaint item 7 is that weep holes have not been installed over windows and doors that exceed 1200 millimetres long as required in Australian Standard 4773.2 (AS 4773.2) and Australian Standard 3700 (AS 3700) if unprotected panels above frames exceed three courses high.[48]
[48] Exhibit 1, page 17; Applicant's Closing Submissions Item 7, Schedule 2.
In the earlier reports of Mr Chamberlain and Mr Machell it is stated that weep holes had not been installed over windows and doors.[49]
[49] Exhibit 1, pages 241, 299 - 300, 332 - 333, 365 - 366 and 418 - 419.
In their joint expert report, Mr Chamberlain and Mr Machell agreed that weep holes had been installed.[50] Mr Bryers agreed.[51]
[50] Exhibit 1, page 474.
[51] Exhibit 1, page 457.
However, Mr Chamberlain expressed the view that the drilled-out weep holes are unacceptable as they now reveal that the required flashings associated with weep holes have not been installed.[52]
[52] Exhibit 1, 474. See also Exhibit 1, pages 299 - 300 and 332 - 333.
At the Hearing, Mr Chamberlain and Mr Machell gave evidence which was consistent with their joint expert report.[53] Mr Chamberlain also gave evidence that correctly installed weepholes have flashings and that, in his opinion, a weephole cannot function properly if a flashing has not been installed.[54] Mr Machell and Mr Bryers gave evidence that a correctly installed weephole need not have a flashing immediately behind it because it depends on where the weephole is and in some cases the lintel can become part of the flashing.[55]
[53] ts 88 - 97, 7 February 2024.
[54] ts 89 - 93 and 97, 7 February 2024.
[55] ts 92 - 97, 7 February 2024.
The applicant submitted that:[56]
… it does not resolve the complaint as to absence of weep holes if the Respondent installs weep holes that are not fit for purpose or are not able to perform as weepholes due to the absence of flashing behind them.
The absence of that flashing it is submitted means that the installed weep holes are faulty and unsatisfactory and do not remedy the complaint, that is the absence of weep holes. The installation of weep holes that are not capable of acting as such is not a resolution of the complaint[.]
[56] Applicant's Closing Submissions Item 7, Schedule 2.
The respondent submitted that the claim in respect of the absence of flashings is a separate complaint.[57]
[57] Respondent's Closing Submissions at para 12.
We accept the evidence of Mr Chamberlain, Mr Machell and Mr Bryers about whether weepholes have been installed as it was not in dispute. On the basis of their evidence, we find that weep holes have been installed.
We accept the evidence of Mr Machell and Mr Bryers in respect of whether or not a correctly installed weephole requires a flashing behind and find that it is not necessary. We prefer the evidence of Mr Machell and Mr Bryers to the evidence of Mr Chamberlain because they were able to give examples of when a weephole might not have a flashing behind it.
Whilst there was evidence before the Tribunal from Mr Chamberlain that flashings had not been installed, complaint item 7 related only to the absence of weepholes and not the absence of flashings. In our view, and on the basis of the expert evidence of Mr Machell and Mr Bryers, we find that the absence of flashings is not one and the same complaint as the absence of weepholes. Given that the absence of flashings was not the subject of a separate complaint, it is not open to the Tribunal to make any remedial orders relating to the absence of flashings. This is because the Tribunal's jurisdiction is limited to the complaint items referred by the Commissioner under the BSCRA Act and complaint items cannot be added to or varied.[58]
[58] Owners of Island Apartments Strata Plan 52597 and Pindan Pty Ltd [2017] WASAT 25 at [67] and Zimowski and Ideal Homes Pty Ltd [2022] WASAT 82 at [64].
Accordingly, we are not satisfied that the work has not been carried out in a proper and proficient manner or is faulty or unsatisfactory. Therefore, we decline to make a BRO and complaint item 7 is dismissed.
Complaint item 8
Complaint item 8 is that brick cleaning requires attention.[59]
[59] Exhibit 1, page 17; Applicant's Closing Submissions Item 8, Schedule 2.
In item 36 of the Standard Specifications to the Contract it is stated that the '[b]rickwork shall be cleaned in an appropriate manner where applicable'.[60]
[60] Exhibit 1, page 220.
In their reports and joint expert report, Mr Chamberlain and Mr Machell noted mortar smears in a number of places on brick walls and agreed that further brick cleaning is required to eliminate mortar smears.[61] Mr Bryers agreed.[62] At the Hearing, Mr Chamberlain and Mr Machell gave evidence which was consistent with their joint expert report.[63]
[61] Exhibit 1, pages 242, 300 - 301, 333, 366 - 367 and 419 - 427 and 474.
[62] Exhibit 1, pages 457 - 458.
[63] ts 97 - 98, 7 February 2024.
During the Hearing, the respondent agreed to undertake necessary brick cleaning prior to practical completion.[64]
[64] ts 98, 7 February 2024; Respondent's Closing Submissions at para 13.
We accept the evidence of Mr Chamberlain, Mr Machell and Mr Bryers as it was not in dispute. We are satisfied on the basis of their evidence and find that there are mortar smears on the brick walls.
We are satisfied on the basis of the evidence of Mr Chamberlain, Mr Machell and Mr Bryer, and the concession of the respondent, and find that the work is faulty or unsatisfactory. This is because there are mortar smears on the walls which should not be present.
Whilst we accept the evidence of Mr Machell that mortar smears on walls are capable of remedy in the normal course of completion,[65] we are of the view that it is appropriate for a BRO to be made in respect of complaint item 8 by which the respondent is required to remove mortar smears from the brick walls.
Complaint item 11
[65] Exhibit 1, page 474.
Complaint item 11 is that where the apron flashing beneath the vertical linings at the front of bedroom 1 sits on top of the Colorbond capping over the void, water will be trapped between these metal materials, accelerating corrosion.[66]
[66] Exhibit 1, page 17; Applicant's Closing Submissions Item 11, Schedule 2.
In Mr Chamberlain's opinion, where the apron flashing beneath the vertical linings at the front of bedroom 1 sits on top of the Colorbond capping over the void, water will be trapped between these metal materials accelerating corrosion in what he described as a marine location.[67]
[67] Exhibit 1, pages 243, 301 and 334.
In Mr Machell's opinion, the flashing is not sealed at mitred joint plates and is not mechanically fixed with pop rivets at nominally 100 millimetre spacings'.[68]
[68] Exhibit 1, page 368.
In the BRO Report, Mr Bryers raised concerns about the failure to use a flexible sealant to the join.[69]
[69] Exhibit 1, page 459.
In their joint expert report, Mr Chamberlain and Mr Machell disagree about the appropriate remedial action.
Initially, Mr Chamberlain was of the view that the pieces of metal should be isolated from each other (e.g., by a bead of silicone).[70] Subsequently, however, Mr Chamberlain expressed the view that the flashing should be replaced with one piece of flashing of the type detailed in drawings.[71] In Mr Chamberlain's view, the longest joint would have been eliminated by the installation of a once-piece apron flashing.[72]
[70] Exhibit 1, pages 243-244, 302-303 and 334.
[71] Exhibit 1, pages 427 and 475.
[72] Exhibit 1, pages 301 – 302.
Mr Machell expressed the view that the unsealed portion of the flashing should be sealed between the faces of the flashings and that pop rivets should be installed at 100 millimetres spacing along the lap between flashing pieces.[73]
[73] Exhibit 1, pages 368 and 475.
At the Hearing, Mr Chamberlain and Mr Machell gave evidence which was consistent with their joint expert report.[74] Further, Mr Bryers agreed that the apron flashing had to be fixed.[75]
[74] ts 98 - 104, 7 February 2024.
[75] ts 104, 7 February 2024.
The respondent agreed that it would attend to any necessary rectification in accordance with Mr Machell's report (Exhibit 1, page 368) and that a flexible sealant would be applied at the relevant join.[76]
[76] Respondent's Closing Submissions at para 15.
We accept the evidence of Mr Chamberlain, Mr Machell and Mr Bryers as it was not in dispute. On the basis of their evidence, we find that the gaps in the apron flashing have not been sealed to prevent water being held between metal surfaces.
On the basis of the evidence of Mr Chamberlain, Mr Machell and Mr Bryers, and the concession of the respondent, we are satisfied and find that the work is faulty or unsatisfactory. This is because the gaps have not been sealed to prevent water from being held between metal surfaces and this could cause corrosion as the Dwelling is situated in a marine location.
We are of the view that it is appropriate for a BRO to be made in respect of complaint item 11 by which the respondent is required to remedy the flashing to prevent water being held between the metal surfaces.
Complaint item 17
Complaint item 17 is that no provision has been made for discharge of wastewater from the water softener into the drain prior to the concrete paving being placed at the side of the house.[77]
[77] Exhibit 1, page 18; Applicant's Closing Submissions Item 17, Schedule 2.
In Mr Chamberlain's opinion, no provision has been made for a dedicated discharge point for the water softener.[78] He states that the manufacturer's instructions say 'Install as close as possible to a drain.'[79] He added that as the sewer line runs directly beneath the water softener a drainage point could/should have been provided next to the nominated location for this unit (towards the rear end of the wall outside the robe to the guest bedroom).[80]
[78] Exhibit 1, page 428.
[79] Exhibit 1, page 247.
[80] Exhibit 1, page 428.
In Mr Machell's opinion, the discharge point of the water softener was piped to discharge over a drainage grate and, accordingly, there is no discernible basis to this item of complaint.[81]
[81] Exhibit 1, page 370.
In the BRO Report, Mr Bryers stated:
The Puretec Installation Procedure under Connecting the Drain Lines, states, 'Connect extra tube (tubing not supplied) onto the 5/8" drain line (pre installed on the valve) from the valve to the drain. Ensure the drain line is not kinked. The line must not travel more than 2.4 m and no more than 6 m long from the valve, otherwise increase the diameter of the drain line. Connect drain and overflow to sewer or other approved salty water disposal point as approved by your local authority. Ensure drain line has an adequate air gap of 2 times the pipe diameter or 25 mm, whichever is larger'.[82]
[82] Exhibit 1, page 463.
In their reports and the joint expert report, Mr Chamberlain and Mr Machell disagreed about appropriate remedial action. Mr Chamberlain expressed the view that a portion of concrete path should be taken up, the soil excavated, a sewer connection made, the soil backfilled and compacted prior to replacing concrete.[83] Mr Chamberlain also expressed the view that Installation is not in accordance with the manufacturer's instructions.[84] Mr Machell is of the view that the installation of the water softener and associated pipework is acceptable.[85] At the Hearing, Mr Chamberlain and Mr Machell gave evidence which was consistent with their joint expert report.[86]
[83] Exhibit 1, page 306.
[84] Exhibit 1, page 475.
[85] Exhibit 1, pages 370 and 475.
[86] ts 105 - 108, 110 - 112, 7 February 2024.
Mr Chamberlain gave evidence that the builder had offset the position of the water softener from the pipe work that comes through the wall by a distance of about 500 millimetres but then runs the drainpipes from the water softener for over another 2 metres to a disconnector trap and discharges it through the top of the disconnect trap as it protrudes through the concrete paving.[87]
[87] ts 105, 7 February 2024.
Mr Chamberlain added that the problem with the water softener is that the discharge pipes are salt-laden water or dissolved mineral‑laden water and that this discharge needs to go into the sewer line.[88] In Mr Chamberlain's opinion, the water will clog up the 2 metre pipe in no time.[89] Mr Chamberlain also stated that the drain that is installed was not installed for the purifier but as a drain outside the semiensuite.[90] Mr Machell disagreed.[91]
[88] ts 105, 7 February 2024.
[89] ts 105 and 108, 111 - 112, 7 February 2024.
[90] ts 106, 7 February 2024.
[91] ts 106, 7 February 2024.
Mr Bryers accepted that the drain line was less than 6 metres long and was therefore consistent with the installation guidelines.[92]
[92] ts 109 - 110, 7 February 2024.
Sessional Member Marsh suggested to the parties that an appropriate remedy might be to increase the gradient of the drain line. Mr Chamberlain and Mr Bryers agreed.[93] Mr Machell queried what the gradient would need to be because there is already a gradient on the drain line.[94]
[93] ts 111, 7 February 2024.
[94] ts 111, 7 February 2024.
We accept the evidence of Mr Chamberlain that the drain line from the water softener is over 2 metres in length and discharges water from the water softener into a disconnector trap.
On the basis of the evidence of Mr Bryers and Mr Machell we are not satisfied that the work has not been carried out in a proper and proficient manner or is faulty or unsatisfactory. This is because provision has been made for the discharge of the water from the water softener into a disconnector trap by means of a drain line just over 2 metres from the water softener and this is consistent with the manufacturer's installation instructions which contemplate that the drain line from the water softener to the drain can be up to 6 metres in length. Further, the complaint made by the applicants does not relate to the pipes getting clogged and, as outlined in paragraph [49], complaint items cannot be added to or varied. Therefore, we decline to make a BRO and complaint item 17 is dismissed.
Complaint item 20
Complaint item 20 is that the voids in the piers at the rear of the al fresco area are supposed to be mortar/grout filled, with the reinforcing rod extending down and into the concrete footing.[95]
[95] Exhibit 1, pages 18 - 19; Applicant's Closing Submissions Item 20, Schedule 2.
In his initial report Mr Chamberlain identified that the voids in the piers had not been mortar/grout filled with the reinforcing rod extending down and into the concrete footing.[96]
[96] Exhibit 1, page 248.
Subsequently, Mr Chamberlain. Mr Machell and Mr Bryers reported that the piers had been filled and that the gutters had been damaged in the process.[97]
[97] Exhibit 1, page 307 - 308, 371 and 464.
In their joint expert report, Mr Chamberlain and Mr Machell agreed that no further work is required in respect of this item save for repairs to gutter damage.[98] At the Hearing, Mr Chamberlain and Mr Machell confirmed their views.[99]
[98] Exhibit 1, page 476.
[99] ts 112 - 113, 7 February 2024.
We accept the evidence of Mr Chamberlain, Mr Machell and Mr Bryers as it was not in dispute. On the basis of their evidence, we find that the voids have been filled. Further, on the basis of the evidence of Mr Chamberlain and Mr Machell, we find that there is damage to the gutters.
On the basis of the evidence of Mr Chamberlain and Mr Machell, we are not satisfied that the work has not been carried out in a proper and proficient manner or is faulty or unsatisfactory. This is because the voids have been filled. Further, the complaint made by the applicants does not relate to damage to the gutters and, as outlined in paragraph [49], complaint items cannot be added to or varied. We note that in any event the respondent would be expected to repair the damage to the gutters prior to handover and the respondent has agreed to undertake the remedial work.[100] Therefore, we decline to make a BMO and complaint item 20 is dismissed.
Complaint item 21
[100] Respondent's Closing Submissions at para 19.
Complaint item 21 is that insulation in the roof space is 'gappy'.[101]
[101] Exhibit 1, page 19; Applicant's Closing Submissions Item 21, Schedule 2.
In his reports, Mr Chamberlain said that the roof insulation is gappy, needs to be realigned and supported from beneath, that taping the joints does not provide a permanent solution and that gaps at the bottoms and edges of roof areas cannot be taped.[102]
[102] Exhibit 1, pages 249, 308, 336 and 430.
In his report, Mr Machell said that, at the time of his inspection, the roof insulation was installed without visible or discernable gaps, including the locations referred in the complaint.[103]
[103] Exhibit 1, page 372.
In the BRO Report, Mr Bryers said that Anticon had been placed under the roof-sheeting and over the battens but had sagged or come loose in places leaving gaps.[104]
[104] Exhibit 1, page 464.
In their joint expert report, Mr Chamberlain and Mr Machell agreed that there should not be any gappy areas of Anticon type roof insulation at the date of practical completion.[105] At the Hearing, Mr Chamberlain and Mr Machell gave evidence which was consistent with their joint expert report.[106]
[105] Exhibit 1, page 476.
[106] ts 113 - 114, 7 February 2024.
The respondent agreed to perform any necessary work to address the complaint item prior to handover.[107]
[107] Respondent's Closing Submissions at para 20.
We accept the evidence of Mr Chamberlain and Mr Bryers. On the basis of their evidence, we find that there are gaps in the insulation in the roof space. We prefer their evidence to that of Mr Machell because Mr Chamberlain's last visits to the Dwelling (11 February 2022 and 27 January 2023)[108] and Mr Bryers inspection (4 May 2022)[109] occurred after Mr Machell's visit (12 November 2021)[110] and thus provided the most recent evidence concerning the state of the insulation in the roof space.
[108] Exhibit 1, page 408.
[109] Exhibit 1, page 453.
[110] Exhibit 1, page 344.
On the basis of the evidence of Mr Chamberlain, Mr Machell and Mr Bryers, and the concession of the respondent, we are satisfied and find that the work is faulty or unsatisfactory. This is because there should not be gaps in the insulation in the roof space.
We are of the view that it is appropriate for a BRO to be made in respect of complaint item 21 by which the respondent is required to eliminate the gaps in the insulation in the roof space.
Complaint item 24
Complaint item 24 is that the roof tie-down requirements have not been met.[111]
[111] Exhibit 1, page 19; Applicant's Closing Submissions Item 24, Schedule 2.
The tie-down specifications for the roof prepared by Structerre Consulting set out the requirements for tie-down for the Dwelling.[112]
[112] Exhibit 1, pages 177 - 180.
In his report dated 19 July 2021, Mr Chamberlain said that in some areas tie-down requirements could not be seen due to the installation of thick ceiling insulation.[113] However, in other areas that could be checked, he said that the roof trusses had not been secured down at all.[114] In his subsequent reports, Mr Chamberlain identified a number of areas where the roof tie-down requirements did not comply with the engineering drawings.[115]
[113] Exhibit 1, page 250.
[114] Exhibit 1, page 250.
[115] Exhibit 1, pages 309 - 312, 336 - 337 and 430 - 431.
In his report, Mr Machell expressed the view that, absent a more informed assessment of the roof trust tie-down arrangement, there is no basis to conclude that the roof is not tied down adequately.[116]
[116] Exhibit 1, pages 373 - 374.
In the BRO Report, Mr Bryers said that the respondent had agreed to investigate and remedy all tie-down areas and carry out remedial works to comply with the engineer's details.[117]
[117] Exhibit 1, page 465.
In their joint expert report, Mr Chamberlain and Mr Machell agreed that the roof should be tied down to conform to notes in the revised drawings rather than the original drawings where the roof frame has changed from conventional stick frame to steel trusses.[118] At the Hearing, Mr Chamberlain and Mr Machell gave evidence which was consistent with their joint expert report.[119]
[118] Exhibit 1, page 476.
[119] ts 114 - 116, 7 February 2024.
During the Hearing, the respondent through counsel agreed that the engineer's requirements would be adhered to before practical completion.[120]
[120] ts 114, 7 February 2024; Respondent's Closing Submissions at para 22.
We accept the evidence of Mr Chamberlain as it was not in dispute. On the basis of his evidence, we find that the roof tie-down requirements contained in the engineering drawings have not been complied with.
On the basis of the evidence of Mr Chamberlain, Mr Machell and Mr Bryers, and the concession from the respondent, we are satisfied and find that the work is faulty or unsatisfactory. This is because the roof tie-down requirements contained in the engineering drawings have not been complied with.
We are of the view that it is appropriate for a BRO to be made in respect of complaint item 24 by which the respondent is required to tiedown the roof in compliance with the engineer's drawings.
Complaint item 25
Complaint item 25 is that Perth wind posts are not present.[121]
[121] Exhibit 1, page 19; Applicant's Closing Submissions Item 25, Schedule 2.
In the BRO Report, Mr Bryers said that '[w]indposts span vertically to provide additional lateral support for large panels of masonry or panels with openings and that they are a structural member of the residence'.[122] He added that evidence would be needed that the post had been installed contrary to the engineer's instructions.[123]
[122] Exhibit 1, page 465 - 466.
[123] Exhibit 1, page 466.
In his earlier reports, Mr Chamberlain raised concerns about being unable to locate the Perth wind posts in their nominated locations.[124]
[124] Exhibit 1, page 251.
In his report, Mr Machell said that, at the item of his inspection, he was unable to sight the wind posts designed to be installed in the cavity wall and that he was unable to conclude whether or not the wind posts had been installed given the difficulty in gaining access to the area.[125]
[125] Exhibit 1, page 374.
In their joint expert report, Mr Chamberlain and Mr Machell agreed that they were unable to sight any wind posts as the cavities are inaccessible.[126]
[126] Exhibit 1, page 476.
However, in his report dated 3 October 2023, Mr Chamberlain said that he removed sufficient self-drilling screws from the roof sheets to allow the top of the cavity wall between the fixed glass panel in the kitchen and the window closed to the games room to be seen from above.[127] He stated that this revealed why the top of the wind post could not be seen, namely there was no wind post installed.[128]
[127] Exhibit 2, page 4.
[128] Exhibit 2, page 4.12 and 431.
At the Hearing, Mr Chamberlain gave evidence that the original plans provided for three wind posts whereas the revised plans provided for two wind posts.[129] Mr Chamberlain gave evidence that he could not find the wind post which was common to both plans.[130]
[129] ts 117 - 119, 7 February 2024.
[130] ts 117 - 119, 7 February 2024; Respondent's Closing Submissions at para 23.
During the Hearing, the respondent through counsel stated that the wind posts had been installed but their precise location was unknown.[131] The respondent agreed that he would obtain an engineer certification with respect to the wind posts and the builder would carry out an engineer solution if the wind posts had not been installed or not installed properly.[132] However, no evidence was given on behalf of the Respondent concerning the installation of the windposts.
[131] ts 116, 7 February 2024.
[132] ts 116-117, 7 February 2024.
We accept the evidence of Mr Chamberlain and find that at least one of the wind posts has not been installed in the locations required on the revised plans. We prefer the evidence of Mr Chamberlain to the statement made by the respondent in [113] above because that statement was not given in evidence. Further, we prefer the evidence of Mr Chamberlain to Mr Machell because, following their expert conferral, Mr Chamberlain was able to get access to check the location where one of the wind posts was meant to be located and he did not find a wind post there.
On the basis of the evidence of Mr Chamberlain, Mr Machell and Mr Bryers, and the concession from the respondent, we are satisfied and find that the work is faulty or unsatisfactory. This is because at least one of the wind posts has not been installed where it is required on the plans for the Dwelling.
We are of the view that it is appropriate for a BRO to be made in respect of complaint item 25 by which the respondent is required to obtain an engineer certification with respect to the wind posts and, if the wind posts have not been installed or have not been installed properly, to carry out an engineered solution.
Complaint item 26
Complaint item 26 is that ceilings have not been back blocked.[133]
[133] Exhibit 1, pages 19 - 20; Applicant's Closing Submissions at Item 26, Schedule 2.
In their earlier reports, Mr Chamberlain and Mr Machell identified a lack of back-blocking where there are more than two joints in the plasterboard ceiling sheets contrary to Australian Standard 2589 (AS 2589).[134] Mr Bryers agreed.[135]
[134] Exhibit 1, pages 251, 312 - 313, 337, 374 - 375 and 431.
[135] Exhibit 1, pages 466 - 467.
In their joint expert report, Mr Chamberlain and Mr Machell agreed that where there are more than two joints between plasterboard ceiling sheets, all of the joints in that area need to be back-blocked.[136] At the Hearing, Mr Chamberlain and Mr Machell gave evidence consistent with their joint expert report.[137]
[136] Exhibit 1, page 476.
[137] ts 120 - 121, 7 February 2024.
The respondent agreed to ensure that where back-blocking is required to internal ceilings, this will be performed prior to handover.[138]
[138] Respondent's Closing Submissions at para 24.
We accept the evidence of Mr Chamberlain, Mr Machell and Mr Bryers as it was not in dispute. On the basis of their evidence, we find that the joints in the ceiling have not been back-blocked where there are more than two joints between plasterboard ceiling sheets.
On the basis of the evidence of Mr Chamberlain, Mr Machell and Mr Bryers, and the concession of the respondent, we are satisfied and find that the work is faulty or unsatisfactory. This is because where there are more than two joints between plasterboard ceiling sheets, the joints should be back-blocked to conform to AS 2589.
We are of the view that it is appropriate for a BRO to be made in respect of complaint item 26 by which the respondent is required to back-block the ceilings in those rooms that have more than two joints between plasterboard ceiling sheets to comply with AS 2589.
Complaint item 27
Complaint item 27 is that there are gappy areas in the ceiling insulation (e.g., where batts have been removed and not refitted).[139]
[139] Exhibit 1, page 20.
In their earlier reports, Mr Chamberlain, Mr Machell and MrBryers agreed that that there are areas of gappy ceiling insulation evident.[140]
[140] Exhibit 1, pages 252, 313, 338, 375,432 and 467.
In their joint expert report, Mr Chamberlain and Mr Machell agreed that there should be no gaps between the ceiling insulation batts at the date of practical completion.[141] At the Hearing, Mr Chamberlain and Mr Machell gave evidence which was consistent with their joint expert report.[142]
[141] Exhibit 1, page 477.
[142] ts 121 - 123, 7 February 2024; Respondent's Closing Submissions at para 25.
During the Hearing, the respondent through counsel agreed to remove the gaps prior to practical completion.[143]
[143] ts 123, 7 February 2024.
We accept the expert evidence of Mr Chamberlain, Mr Machell and Mr Bryers as it was not in dispute. On the basis of their evidence, we find that there are gaps in the ceiling insulation.
On the basis of the expert evidence of Mr Chamberlain, Mr Machell and Mr Bryers, and the concession of the respondent, we are satisfied and find that the work is faulty or unsatisfactory. This is because there should not be any gaps in the ceiling insulation.
We are of the view that it is appropriate for a BRO to be made in respect of complaint item 27 by which the respondent is required to eliminate gaps in the ceiling insulation.
Complaint item 32
Complaint item 32 is that the tiles cannot be put on internal walls due to the finish on them.[144]
[144] Exhibit 1, page 20; Applicant's Closing Submissions at paras 20 - 33.
The Contract Addenda originally provided for the respondent to tile the walls in the bathroom, ensuite and powder rooms from floor to ceiling.[145] Under the Contract, tiling was to be carried out in accordance with the Contract Specifications.[146] However, there was a variation of the Contract by which a credit was given for removing fullheight tiling to the bathroom, ensuite, water closet and powder room and to provide builders standard tiling in lieu of full-height tiling.[147] The variation was signed by the applicants and is dated 14 July 2020.
[145] Exhibit 1, page 76.
[146] Exhibit 1, page 226.
[147] Exhibit 1, page 105.
In his reports, Mr Chamberlain raised two issues. First, the wall surfaces are not plumb and, second, the finishing coat should not have been applied over the float coat.[148] Mr Chamberlain is of the view that the application of the finishing coat precludes tiles being laid without removal of at least the finishing coat.[149]
[148] Exhibit 1, pages 254, 314, 338 - 339 and 432 - 433.
[149] Exhibit 1, page 254.
In his report, Mr Machell said that the installation of the dado finish was in accordance with the contract drawings and so there is no basis to conclude that the works are faulty or unsatisfactory.[150]
[150] Exhibit 1, pages 377 - 378.
In the BRO Report, Mr Bryers said that unless there was additional evidence that the respondent was instructed not to plaster the wet areas, the complaint item should be dismissed.[151]
[151] Exhibit 1, pages 468 - 469.
In their joint expert report, Mr Chamberlain and Mr Machell agreed that the existing finish to walls in the bathroom areas precludes tiling of the walls by the applicants.[152] However, the expert disagree about the appropriate remedial action. Mr Chamberlain is of the view that the wall finish needs to be removed and made plumb before the walls can be tiled.[153] Mr Machell is of the view that suitable preparatory works are required including scoring/roughing up the surface to be tiled.[154] At the Hearing, Mr Chamberlain and Mr Machell gave evidence which was consistent with their joint expert report.[155]
[152] Exhibit 1, page 477.
[153] Exhibit 1, page 477.
[154] Exhibit 1, page 477.
[155] ts 123 - 134, 182 - 188, 7 February 2024.
During the Hearing, the respondent conceded through counsel that the respondent was aware that the full-height tiles were to be installed by the applicants post builder's completion.[156]
[156] ts 182, 7 February 2024.
The applicant submitted that:
(a)'the [r]espondent at all times knew that the walls were to be full height tiling, notwithstanding that by variation the responsibility for the full height tiling was passed to the [a]pplicants. The drawings clearly showed full height tiling in both of the bathrooms'; and
(b)'the larger than normal bottom edges to the cornices installed by the respondent are consistent with full height tiling being installed'.[157]
[157] Applicant's Closing Submissions at paras 25 - 26.
The respondent submitted that:
(a)full-height tiling to the bathroom, ensuite, wc and powder room was removed from the respondent's scope of work by way of signed variation dated 14 July 2020;
(b)where the plaster walls above the tiles, as installed by the respondent, were to be a dado finish, that finish has been achieved in accordance with the requirements of the Contract;
(c)there is no evidence that the respondent was instructed not to plaster the wet areas and the Contract documents otherwise require the dado plaster finish to be applied to the wet areas;
(d)the need for preparatory work for the applicants to perform full‑height tiling to the walls does not amount to faulty or unsatisfactory work by the respondent; and
(e)the evidence of Mr Byers was that tiling can be undertaken to a dado finish.
We accept the evidence of Mr Chamberlain and Mr Machell as it was not in dispute. On the basis of their evidence, we find that the existing finish to walls in the bathroom areas precludes tiling of the walls by the applicant.
On the basis of the evidence of Mr Chamberlain and Mr Machell, we are satisfied and find that the work is faulty or unsatisfactory. This is because the tiles cannot be put on the walls in circumstances where the respondent knew that the applicants were going to tile the walls.
We are of the view that it is appropriate for a building remedy order to be made in respect of complaint item 32 by which the respondent is required to prepare the internal walls so that tiles can be adhered to them.
Whilst there was evidence before the Tribunal from Mr Chamberlain that the walls were out of plumb, complaint item 32 related only to the inability of the applicants to put tiles on the walls due to the finish. There is no complaint before the Tribunal that the walls are out of plumb and, as outlined in paragraph [49], complaint items cannot be added to or varied.
Complaint item 35
Complaint item 35 is that the wall tiles to each of the vanity units in the semi-ensuite bathroom are not set out with reference to the bench top resulting in wall tile joints aligning about 8 millimetres above stone tops installed to vanity units.[158]
[158] Exhibit 1, pages 20 - 21; Applicant's Closing Submissions at Item 35, Schedule 2.
In the BRO Report, Mr Bryers said that the vanities did not line up with the tile joint and left an 8 millimetre cut tile above the vanity and that the respondent had agreed to remedy the alignment of the tiles with the vanities by moving the vanities to be in line with the grout line.[159]
[159] Exhibit 1, pages 469 - 470.
In his reports, Mr Chamberlain said that tiling completed in the semi‑ensuite bathroom is poorly set out for the height of the tiles used, resulting in a variation in alignment of joints between wall tiles on each side of the shower screen.[160] Mr Chamberlain noted that agreement was reached for the vanity units to be lifted and aligned with the horizontal joints between the black wall times at the side of the bedroom 1 doorway.[161]
[160] Exhibit 1, pages 257, 315 and 339.
[161] Exhibit 1, page 315.
In their joint expert report, Mr Chamberlain and Mr Machell agreed that the cupboards should be raised.[162] They confirmed their view at the Hearing.[163]
[162] Exhibit 1, page 477.
[163] ts 135, 7 February 2024.
The respondent agreed to lift the vanity cabinet to resolve this complaint prior to handover.[164]
[164] Respondent's Closing Submissions at para 29.
We accept the evidence of Mr Chamberlain, Mr Machell and Mr Bryers as it was not in dispute. On the basis of their evidence, we find that the wall tiles to each of the vanity units in the semi-ensuite bathroom are not set out with reference to the bench top resulting in wall tile joints aligning about 8 millimetres above stone tops installed to vanity units.
On the basis of the evidence of Mr Chamberlain, Mr Machell and Mr Bryers, and the concession of the respondent, we are satisfied and find that the work is faulty or unsatisfactory. This is because the vanity units do not line up with the tile joint.
We are of the view that it is appropriate for a BRO to be made in respect of complaint item 35 by which the respondent is required to raise the vanity units to eliminate the cut tile so that the vanity tops are in line with the grout line.
Complaint item 36
Complaint item 36 relates to the internal wall finishing. Specifically, the complaint is that '[s]amples taken from the property were sent to Zedcon Scientific Services to determine the amount of cement in the finishing coat of dado. Rather than confirming the ratio of cement or which brand was used tests on each of the samples confirm that there is no cement at all in the finishing coat'.[165]
[165] Exhibit 1, page 21; Applicant's Closing Submissions at paras 34 - 89.
This complaint item was the most significant item in dispute between the parties. It is therefore necessary to set out the evidence in some detail.
The floor plan for the Dwelling[166] shows that the floor area of the Dwelling is 336m2 (excluding the garage, al fresco area and porch) and contains a free form living area, a grand cinema room, four bedrooms, a kitchen, a scullery, a laundry, a web zone, two bathrooms, two powder rooms and a foyer.
[166] Exhibit 1, pages 12, 58, 66 and 122.
In item 57 of the Standard Specifications to the Contract it is stated:
Internal walls unless otherwise specified shall be completed to a reasonable standard generally in accordance with the guides and tolerances set out in Standards Australia HB161-2005 (note this is a guide only and not a standard, no standard exists), by the application of a cement render float coat and white plaster set. The Owner is aware the plaster, sand render and acrylic render are subject to natural forces and environmental circumstances and will require periodical maintenance on the part of the Owner as necessary given the extent of such natural forces.[167]
[167] Exhibit 1, page 223.
On 6 October 2020, the applicants signed a variation to the Contract which provided that the internal plaster was to be a 'Dado hard set plaster' in lieu of the builders standard white set plaster'[168] (dado finish).
[168] Exhibit 1, page 107.
Ms Vasilevskaya's evidence may be summarised as follows:
(a)she suffers from high chemical sensitivity triggered by chemicals used in materials in a home;[169]
(b)she and Mr Carbone purchased a block in Esperance to build upon because they could not find a suitable established home to buy,[170] and because they could control how the house is built and the materials used;[171]
(c)none of the builders they approached wanted to deal with her because it was too complicated to build a chemical free home, but the respondent told her it was no problem;[172]
(d)she wanted cement walls and was promised cement walls right from the start as these were the kind of walls she had at her home in Russia, and she did not suffer any reaction to them;[173]
(e)the variation relating to a dado finish was made so that she would not have gyprock walls and they had to pay extra money;[174]
(f)she understood that a dado finish was cement with some additives;[175] and
(g)she had an adverse reaction when she entered the Dwelling after the internal walls were plastered.[176]
[169] ts 195 - 197, 8 February 2024.
[170] ts 195, 8 February 2024.
[171] ts 195, 8 February 2024.
[172] ts 196 - 197, 8 February 2024.
[173] ts, 200 - 202, 204, 206-207, 8 February 2024.
[174] ts, 208 - 2010, 8 February 2024.
[175] ts, 210, 8 February 2024.
[176] ts, 203-205, 8 February 2024.
Mr Carbone gave evidence that the respondent was told that they did not want gyprock or soft set plaster.[177] He said that the variation was signed because Mr Riedyk said that if they wanted a cement finish they would have to pay extra.[178] However, the walls were always going to be a cement finish and he understood that a dado finish was a concrete or a cement finish.[179]
[177] ts, 212, 8 February 2024.
[178] ts, 214, 8 February 2024.
[179] ts, 214, 8 February 2024.
Ms Vasilevskaya's evidence about her allergies is consistent with the report from Dr Graham Rowlands dated 10 September 2021 which refers to Ms Vasilevskaya's chemical sensitivity to building products.[180]
[180] Exhibit 1, page 234.
Mr Lanyon-Cook, the plasterer who did the plasterwork, gave evidence that he that he has been a plasterer since 2000,[181] and that he had worked for the respondent for about the last 15 to 16 years.[182] He said that he was contracted by the respondent to do a dado finish on the internal walls of the Dwelling.[183] Mr Lanyon-Cook described a dado finish variously as a 'hard plaster', 'cement plaster' and 'hard, robust, hardwearing cement finish.[184]
[181] ts 215, 8 February 2024.
[182] ts 215, 8 February 2024.
[183] ts 216, 8 February 2024.
[184] ts 216, 8 February 2024.
Mr Lanyon-Cook described how he prepares and applies a dado finish.[185] He said that the first coat, which he referred to as the strong float coat, consists of four parts sand to one part cement. Once the float coat has been completed and cured, he soaks down the walls with lots of water. The second coat, the dado coat, consists of four parts sand, two parts lime putty and two parts cement. The second coat is spread on the walls and trowelled up for the next four hours. The second coat becomes like a glass finish when set. The walls are soaked to slow down the curing process. Mr Lanyon-Cook said that he uses this method on every job and that the finish achieved at the Dwelling was typical of a dado finish.[186]
[185] ts 216 - 217, 8 February 2024.
[186] ts 217 and 219, 8 February 2024.
Mr Lanyon-Cook said that he made up the plaster mix himself, not his offsider, Mr Neil McDonald, and that there was lots of cement in his mix.[187] He said that he used Swan cement from Albany and Cockburn cement purchased from Bunnings in Esperance.[188] He said that he used the plaster mix on the walls throughout the entire house.[189]
[187] ts 219 and 223, 8 February 2024.
[188] ts 219, 8 February 2024.
[189] ts 224, 8 February 2024.
Mr Lanyon-Cook also gave evidence said that he patched blemishes on the walls using a CSR top-coat compound which did not contain the same ingredients as the plaster mix.[190]
[190] ts 222 - 225, 8 February 2024.
Mr Lanyon-Cook said that a dado finish must contain cement and if there is no cement then it is not a dado finish.[191] He said that he did not use any products in lieu of cement and was not aware of any products that could be used in lieu of cement to get the same sort of hard finish.[192] He also said that if there were no cement in the plaster mix, then it would just be sand and lime and 'it wouldn't stick to anything'.[193]
[191] ts 219 and 223 - 224 8 February 2024.
[192] ts 223 - 224, 8 February 2024.
[193] ts 224, 8 February 2024.
Mr Lanyon-Cook's evidence was consistent with a statutory declaration he made on 16 August 2021.[194]
[194] Exhibit 1, page 246.
Mr Riedyk, the construction manager for the respondent, is responsible for supervising the construction of the Dwelling.[195]
[195] ts 227, 8 February 2024.
Mr Riedyk said that after construction of the Dwelling commenced, the applicants wanted to change the white set to a concrete finish.[196] However, the closest they could get was a dado finish and that is what the applicants wanted so a variation was made.[197]
[196] ts, 228, 8 February 2024.
[197] ts 228, 8 February 2024.
Mr Riedyk said that Mr Lanyon-Cook was engaged to do the plastering work on the internal walls.[198] He attended the site on numerous occasions when Mr Lanyon-Cook was performing his plastering work.[199] He saw Mr McDonald preparing the plaster mix, but not Mr Lanyon-Cook,[200] and he observed what was being used in the mix.[201] He did not see every single mix.[202] He said that cement was used in both coats and, specifically Swan cement for the topcoat.[203] He also said that he observed Mr Lanyon-Cook applying the float coat and dado finish inside the Dwelling.[204]
[198] ts 228 - 229 and 237, 8 February 2024.
[199] ts 228, 8 February 2024.
[200] ts 337, 8 February 2024.
[201] ts 229 and 237, 8 February 2024.
[202] ts 238, 8 February 2024.
[203] ts 229, 8 February 2024.
[204] ts 229, 8 February 2024.
Mr Riedyk was asked by the Tribunal what he could recall from his observations of what products were being used in the mix (rather than from what he had been told or from his notes). He said:
… So I've seen the trailer was full of the products. I had Swan Cement General Purpose and industrial lime putty sitting out the front of the property, and the plastering sand was - we delivered the plastering sand. It was onsite, and that's the products they were using to mix in the mixer[.][205]
[205] ts 237, 8 February 2024.
Mr Riedyk said that four walls plastered by Mr Lanyon-Cook were defective because they had a lump in them (defective walls) and that he organised for Mr Tyrrell to supervise the reapplication of the plaster to those walls.[206]
[206] ts 229 and 235, 8 February 2024.
Mr Tyrell, the assistant supervisor for the construction of the Dwelling under Mr Riedyk,[207] said that he oversaw the repair work to the defective walls by Mr Kallumm Ogley.[208] He said that Mr Ogley removed the plaster using a grinder to cut the plaster from top to bottom and a rotary hammer drill to chisel the plaster back to the bare brick.[209]
[207] ts 240, 8 February 2024.
[208] ts 240, 8 February 2024.
[209] ts 240 - 241, 8 February 2024.
Mr Chamberlain delivered plaster samples to Dr Zurhaar for testing.[210] The first two samples (Sample 1 and Sample 2) were from the plaster which had been removed from the defective walls and left lying on the floor of the Dwelling.[211] The third sample was taken from near the lightbox after the defective walls were replastered (Sample 3).[212]
[210] ts 139 - 144 and 149, 7 February 2024.
[211] ts 139 - 141, 7 February 2024.
[212] ts 139 - 141, 7 February 2024.
Mr Tyrell collected samples of the plaster and posted them to the respondent's office.[213] The samples were also from the defective walls.[214]
[213] ts 241, 8 February 2024.
[214] ts 241 and 245, 8 February 2024.
It was not in dispute that a dado finish is applied in a two-coat process as a base coat (float coat) followed by a finishing render (set coat) – to determine the composition of the set coat.
Dr Zurhaar tested Sample 1 and Sample 2 to determine the composition of the set coat. The samples were subjected to x-ray diffraction spectrometry (XRD) analysis in order to determine their composition.[215] Dr Zurhaar concluded that neither Sample 1 nor Sample 2 contained cement.[216]
[215] Exhibit 1, pages 260 and 288 - 290, 342 - 343.; ts, 13, 7 February 2024.
[216] Exhibit 1, pages 260 and 288 - 290, 342 - 343; ts, 26 - 27, 7 February 2024.
Dr Zurhaar was of the opinion that any analysis of the dado finish must be limited to the render finish only and not the entire render as normal float coats always contain Portland cement in the mixes.[217]
[217] Exhibit 1, page 286.
Subsequently, Dr Zurhaar subsampled Sample 1 and Sample 2 and sent them to Microanalysis for independent laboratory analysis to determine whether there was any cement in the mixes.[218] Microanalysis Australia concluded that there was no cement in the subsamples.[219]
[218] Exhibit 1, page 260.
[219] Exhibit 1, pages 260, 288 - 290; ts, 17, 27 - 27, 7 February 2024.
Dr Zurhaar tested Sample 3 to determine the composition of the set coat. The sample was subjected to XRD analysis in order to determine its composition Dr Zurhaar concluded that Sample 3 contained cement.[220]
[220] Exhibit 1, page 322; ts, 18-19, 7 February 2024.
Mr Compton received samples which were a composite of float coat and set coat and he was unable to separate the coats.[221] The samples were subjected to x-ray fluorescence (XRF) analysis[222] in order to determine their composition. Mr Compton concluded that the samples contained cement.[223] He is of the opinion that the calculated blend ratio of the render product (a composite of float coat and topcoat) as tested was 15% wt% GP Cement + 2% Lime Putt + 83% wt% Sand.[224] He said that this was consistent with the statutory declaration of Mr Lanyon-Cook in respect of the float coat.[225]
[221] Exhibit 1, pages 263 - 322; ts 37-41, 7 February 2024.
[222] Exhibit 1, pages 263 - 322; ts, 37-39, 7 February 2024.
[223] Exhibit 1, page 281; ts, 37 - 39, 7 February 2024.
[224] Exhibit 1, page 281.
[225] Exhibit 1, page 281.
Mr Machell gave evidence that he inspected the dado finish. He said that it was well-finished, and smooth, excepting minor defects that had occurred as a result of removal of paint from the surface.[226] He also said that the finish of the dado is free of shrinkage cracking, is well adhered and not drummy nor showing signs of delamination, is hard to the touch and smooth and may be easily abraded.[227]
[226] Exhibit 1, page 378.
[227] Exhibit 1, page 379.
In his report, Mr Machell said:[228]
[228] Exhibit 1, pages 380 - 381.
(a)where the two plasterers have installed the dado finish with the sand/cement/lime ratios that they have advised, then, in his opinion, a dado finish has been achieved;
(b)the grey-coloured dado finish is consistent with the colour that might be expected of a plaster mix containing cement whereas simply lime and sand without cement would be much lighter in colour;
(c)the cream-coloured dado finish is consistent with the use of cream coloured cement in the mix;
(d)the hardness that is found on the dado finish is consistent with a mix that contains a high proportion of cement and lime to sand which is necessary in order to achieve a workable mix;
(e)a sand and cement mix would be impossible to use without some form of plasticizer;
(f)a lime and sane mix without cement would have a long initial set time and would produce a very light-coloured finish, inconsistent with what is found at the site;
(g)the resistance of the dado surface to scraping militates towards a dado mix that contains a high proportion of cement;
(h)in his opinion, the dado finish does contain cement and lime in the mix, where the lime gives the workability to the mix, and assists in managing drying shrinkage and surface cracking; and
(i)whilst Mr Chamberlain expected that Plasterers Dark cement would be used, there is no contractual basis for this, and Plasterers Dark contains a number of chemical additives (plasticizers) to make it workable.
Mr Machell concluded:
I have been provided with a signed copy of the Variation 14 and which refers to the requirements of the owner in respect to changing the white set plaster finish to a dado finish as 'Internal Plaster: Provide Dado hard set plaster internally in lieu of builders standard white set plaster', without reference to the use of Plasterers Dark, hyper sensitivity, the non use of lime or additive etc, and where it appears that the primary focus was on achieving a harder finish than white set plaster.
In my opinion, the dado finish is adequately installed, provides a finish that is harder than white set plaster, contains cement, lime and sand in the mix, is well adhered, uncracked without other visible defect, is durable …[229]
[229] Exhibit 1, pages 381 – 382.
In the joint expert report, Mr Chamberlain said that he did not have the expertise to determine the plaster issue.[230] Mr Chamberlain agreed that, based upon Dr Zurhaar's testing of Sample 3, that sample reflects an acceptable dado finish.[231] Mr Chamberlain expressed the view that the appropriate remedial action is to remove the top-coat from walls throughout house, reinstate the base coat and apply a cement dado finish.[232] Mr Machell expressed the view that the render finish applied to the walls meets the requirements for a cement dado finish.[233]
[230] Exhibit 1, page 478.
[231] Exhibit 4; ts 154-155, 7 February 2024.
[232] Exhibit 1, page 316.
[233] Exhibit 1, page 478.
During the Hearing, Dr Zurhaar agreed that the samples tested were a 'tiny, tiny fraction of the overall internal plasterwork' and that nobody in the industry would think the samples 'enough to tell a whole house'.[234] He also said that, had he been involved as a consultant, he would have taken more than one or two samples because the job was a whole house.[235]
[234] ts 32, 61-62, 7 February 2024.
[235] ts 32, 7 February 2024.
Both Dr Zurhaar and Mr Crompton agreed that the samples were hard.[236]
[236] ts, 47, 7 February 2024.
At the Hearing, Dr Zurhaar and Mr Compton disagreed about whether XRD or XRF analysis was the preferable method to analyse a sample for cement. Dr Zurhaar preferred XRD analysis whereas Mr Compton preferred XRF analysis.[237]
[237] ts, 37-51, 7 February 2024.
In the BRO Report, Mr Bryers noted that the complainant was concerned that the dado finish had no cement in the product, and other unknown chemicals were used to achieve the hardness of the plaster.[238] Mr Bryers said:
…
It is to be noted; that there is no guidance in HB161 (Australia, 2005) on a suitable mix for Dado finish render and no Australian Standard for solid plastering. Research shows that Cement Dado is known to be an adaptable finish that can be exposed to full weather, meaning its waterresistant qualities make it a suitable finish for both indoor and outdoor applications.
After inspecting the render, the BEI found the surface to be extremely hard and scratch-resistant and had a high polished glass-faced finish. The finish appears to be of an acceptable finish and would appear to be a lot more robust than the usual hard set plaster.
It is the BEI's considered opinion that as the evidence shows that a cement product was used and in accordance with manufacturer's guidelines and the finish is as expected for a dado plaster, being a glasslike finish, there is no evidence that the respondent has provided works that are faulty and unsatisfactory[.][239]
[238] Exhibit 1, page 470.
[239] Exhibit 1, page 471.
An annotated version of the floor plan of the Dwelling had a number of walls highlighted in yellow, namely walls in the free form living area, grand cinema room, foyer and outside the scullery and laundry.[240] Mr Riedyk gave evidence that these were the defective walls that had the original dado coat removed because of the levels of the finish.[241]
[240] Exhibit 1, page 487.
[241] ts, 229, 8 February 2024.
We accept the evidence of Ms Vasilevskaya and Mr Carbone with respect to her chemical sensitivity and the formation of the Contract between the applicants and the respondent as it was not in dispute and is consistent with the documentary evidence. We make the following findings of fact with respect to the formation of the Contract:
(a)the applicants purchased a block of land in Esperance to construct the Dwelling because Ms Vasilevskaya suffers from high chemical sensitivity and the applicants wanted to be able to control the build and make the Dwelling chemical free;
(b)the applicants contracted with the respondent because it was their understanding that the respondent undertook to construct a chemical free Dwelling; and
(c)the Contract was signed by the parties on 21 October 2019 and requires, inter alia, the respondent to complete the works in accordance with the Contract Documents for the Contract Price.[242]
[242] Exhibit 1, page 40.
We accept the evidence of the applicants and Mr Riedyk with respect to the variation of the Contract as it was not in dispute and was consistent with the contract variation itself. We find that, on 6 October 2020, after the construction of the Dwelling commenced, the applicants signed a variation to the Contract which provided that the internal plaster was to be a dado finish in lieu of the builders standard white set plaster.
It was not in dispute, and we find that a dado finish is a cementbased finish.
We accept the evidence of Mr Lanyon-Cook, Mr Riedyk and Mr Tyrell with respect to the plastering and replastering of the internal walls. We make the following findings of fact with respect to the plastering of the internal walls:
(a)the plastering work was carried out by Mr Lanyon-Cook and his labourer, Mr McDonald;
(b)the plaster was applied to the internal walls of the Dwelling under the supervision of Mr Riedyk; and
(c)the plaster work on the defective walls was removed and replaced by Mr Ogley under the supervision of Mr Tyrell because it was defective.
Mr Lanyon-Cook's evidence that he prepared the plaster mix was inconsistent with Mr Riedyk's evidence that he saw Mr McDonald preparing the plaster mix. However, even if it is accepted that both Mr Lanyon-Cook and Mr McDonald prepared the plaster mix, this does not lead to the conclusion that the plaster mix did not contain cement. This is because Mr Lanyon-Cook gave evidence that he used cement in his plaster mix and Mr Riedyk gave evidence that he saw Mr McDonald preparing plaster mix using cement.
Mr Riedyk's evidence that he observed Swan Cement, lime putty and sand on site lends support to Mr Lanyon-Cook’s evidence that cement was used in the plaster mix and that Mr Lanyon-Cook arranged for cement to be on site.
We accept the evidence of Mr Chamberlain, Mr Tyrell, Dr Zurhaar and Mr Compton and make the following findings of fact with respect to the sampling of the plasterwork on the internal walls:
(a)Mr Chamberlain and Mr Tyrell collected samples from the floor of the Dwelling of the plaster which had been stripped from the defective walls;
(b)the samples were provided to Dr Zurhaar and Mr Compton for analysis;
(c)Dr Zurhaar and Microanalysis tested the set coat of the two samples using XRD analysis and could not detect any cement in the samples;
(d)Mr Compton tested composite samples consisting of the float coat and set coat using XRF analysis and detected cement in the samples;
(e)after the defective walls were replastered, Mr Chamberlain collected an additional sample which he provided to Dr Zurhaar;
(f)Dr Zurhaar tested the additional sample using XRD analysis and detected cement in the sample;
(g)no other samples of plaster were taken from the internal walls of the Dwelling; and
(h)the internal wall plaster is hard and scratch resistant.
It was not necessary for us to decide whether XRD analysis is more accurate than XRF analysis in determining the composition of a sample given that single-layer samples were tested by Dr Zurhaar and Microanalysis and a composite sample was tested by Mr Compton.
The applicants contend that the dado finish to the internal walls is faulty or unsatisfactory because:[243]
(a)it contains no cement which is the undisputed quintessential element of a Dado finish;
(b)the finished walls are incapable of taking the applicants' paint which was known by the respondent to be a water-based paint;
(c)the unknown product or products used, in lieu of cement, to achieve a hard finish to the cement, cause an allergic reaction in Ms Vasilevskaya such that she is unable to spend time inside the house without having significant allergic reactions; and
(d)providing a finished product that an owner cannot bear to be near without an allergic reaction (particularly where those allergy issues were well-known to the builder) is clearly not satisfactory.
[243] Applicant's Closing Submissions at paras 34 - 35.
The respondent denies that the dado finish is faulty or unsatisfactory because:[244]
[244] Respondent's Closing Submissions at para 30.
(a)the dado finish contains cement;
(b)the applicants accept that the dado finish to the internal walls repaired by Mr Ogley contain cement and constitute an acceptable dado finish;
(c)the standard of finish to the unrepaired walls is entirely consistent with cement having been used in the dado mix including as to hardness and colour;
(d)if cement had not been included in the original dado mix then the colour of the dado finish would have been lighter; the mix would not have been workable and the smooth hard finish would not have been achieved;
(e)the samples of plaster tested were not representative of all of the internal plaster work and more samples should have been taken for a representative result to be obtained;
(f)Dr Zurhaar's conclusion that no cement was present in the dado plaster sample he analysed may be attributable to the sample containing a high degree of the CSR topcoat filler used by Mr Lanyon-Cook to level the original dado finish coat he applied;
(g)the suggestion by the applicants that some other chemical has been used by the respondent to achieve a dado finish in lieu of cement is pure supposition;
(h)the Tribunal cannot be satisfied on the balance of probabilities that cement was not used in the dado finish;
(i)the applicant's water-based paint can be used on the dado finish; however a suitable sealer needs to be used before water based paint is applied; and
(j)there was no evidence that the parties contracted on the basis that the Dwelling would be constructed such that Ms Vasilevskaya would have no allergic reaction to the building elements used by the respondent; and
(k)the fact that Ms Vasilevskaya continued to have an allergic reaction prompted by something unknown in the Dwelling does not mean that the respondent has engaged in any faulty or unsatisfactory work.
Complaint item 36 is poorly particularised. However, we take this complaint item to be a complaint that the finishing coat of the plaster on the internal walls of the Dwelling should contain cement but does not.
It is not open to the applicants to attempt to expand the complaint to include allegations that that the dado finish is not able to be painted with the applicants' water-based paint, or that the dado finish causes Ms Vasilevskaya to suffer from an allergic reaction. As outlined in paragraph [49], complaint items cannot be added to or varied.[245]
[245] Owners of Island Apartments Strata Plan 52597 and Pindan Pty Ltd [2017] WASAT 25 at [67] and Zimowski and Ideal Homes Pty Ltd [2022] WASAT 82 at [64].
We are not satisfied that the work has not been carried out in a proper and proficient manner or is faulty or unsatisfactory. This is for the reasons which follow.
First, and most significantly, the Tribunal cannot be satisfied that the dado finish in the Dwelling does not contain cement for the reasons set out below:
(a)Mr Lanyon-Cook said that he used Swan Cement or Cockburn Cement in the plaster mix that was applied to the internal walls of the Dwelling;
(b)Mr Riedyk saw Mr McDonald preparing the plaster mix using cement;
(c)Mr Riedyk saw Swan Cement, lime putty and sand on site;
(d)the samples tested by Mr Compton using XRF analysis contained cement;
(e)the sample from the replastered walls tested by Dr Zurhaar using XRD analysis contained cement;
(f)the difference in colour between the internal walls which were plastered by Mr Lanyon-Cook and Mr McDonald and the internal walls which were replastered by Mr Ogley arises because the grey-coloured dado finish is consistent with the colour that might be expected of a plaster mix containing cement and the cream-coloured dado finish is consistent with the use of cream-coloured cement in the mix;
(g)the hardness found on the dado finish is consistent with a mix that contained a high proportion of cement and lime to sand;
(h)the resistance of the dado finish to scratching/scraping is consistent with a mix that contained a high proportion of cement;
(i)Mr Lanyon-Cook said that the plaster would not have stayed on the walls if it did not contain cement; and
(j)given the large size of the Dwelling and the number of internal walls which were plastered, insufficient samples were taken from the internal walls for testing to be satisfied that the samples tested by the experts were representative of the entire Dwelling; and
(k)the test results in respect of the samples from the defective walls were inconsistent, but the inconsistencies arose because the scientific testing conducted by Dr Zurhaar and Microanalysis on the one hand and Mr Compton on the other was undertaken in respect of different types of samples and using different forms of analysis.
Second, we accept the evidence of Mr Machell and Mr Bryers that the plaster on the internal walls satisfies the description of a dado hard set finish. Their evidence is consistent with the evidence of Dr Zurhaar and Mr Compton that the samples of the internal wall plaster they tested were hard. Their evidence is also consistent with the evidence of Mr Tyrell about the measures which were required to strip the defective plaster off various walls in the Dwelling.
Third and in any event, whilst we have accepted the evidence of the applicants that they engaged the respondent because the respondent agreed to construct the Dwelling so that it was chemical free to deal with Ms Vasilevskaya's allergies, that agreement was not reflected in the Contract, especially in so far as the Contract contained provision for the finish of the internal walls. In particular, there is nothing in the Contract, including the variation for the plasterwork, which stipulated:
(a)what the dado hard set plaster was to consist of, or not to consist of;
(b)what each layer of the dado hard set plaster was to consist of, or not to consist of;
(c)what proportion of cement was to be used in the plaster; and
(d)what type of cement was to be used.
As outlined above at paragraph [7], the Tribunal has no jurisdiction in these proceedings to deal with complaint item 36 other than in respect of a complaint about workmanship.
Given the Tribunal's findings, we decline to make a BRO and complaint item 36 is dismissed.
Complaint items relating to CC 1153 of 2022
There are two complaint items remaining in respect of proceeding CC 1153 of 2022. We will deal with each of these complaints in turn.
Complaint item 1
Complaint item 1 is that V-shaped gutters have been installed instead of box-gutters and that the V-shaped gutters do not meet the roof drainage requirements of AS 3500.5.[246]
[246] Exhibit 1, page 22; Applicant's Closing Submissions, Item 1 of Schedule 1.
In their joint expert report, Mr Chamberlain and Mr Machell agreed that box gutters should be installed in lieu of existing V-shaped gutters.[247] However, they disagreed about the appropriate remedial action. Mr Machell expressed the view that the V-shaped gutters should be replaced with gutters as set out in his report dated 29 November 2022.[248] Mr Chamberlain said that Mr Machell's solution was misconceived.[249]At the Hearing, Mr Chamberlain and Mr Machell gave evidence which was consistent with their joint expert report.[250]
[247] Exhibit 1, page 479. See also Exhibit 1, page 293, 350 - 353, 387 and 479.
[248] Exhibit 1, pages 350 - 353,387 and 479.
[249] Exhibit 1, pages 408 - 411 and 479.
[250] ts 177 - 180, 7 February 2024.
During the Hearing, the respondent agreed through counsel to make the gutter compliant with the Australian Standard or a solution that was certified deemed-to-comply.[251]
[251] ts 179, 7 February 2024; Applicant's Closing Submissions, Item 1 of Schedule of Complaint Items Still in Issue at Time of Final Hearing for CC 1153 of 2022 (Schedule 1); Respondent's Closing Submissions at para 32.
We accept the evidence of Mr Chamberlain and Mr Machell as it was not in dispute. On the basis of their evidence, we find that Vshaped gutters have been installed.
On the basis of the evidence of Mr Chamberlain and Mr Machell, and the concession of the respondent, we are satisfied and find the work is faulty or unsatisfactory. This is because the V-shaped gutters are not compliant with AS 3500.5
We are of the view that it is appropriate for a BRO to be made in respect of complaint item 1 by which the respondent is required to replace the existing V-shaped gutters with gutters that comply with AS 3500.5 or which are certified as deemed-to-comply.
Complaint item 4
Complaint item 4 is that the black finish on the driveway and concrete paving has discoloured/faded to such an extent that it is difficult to discern the concrete is coloured at all.[252]
[252] Exhibit 1, page 24; Applicant's Closing Submissions, Item 4 of Schedule 1.
In quotation documents provided to the applicants by the respondent, a quotation variation is given to provide 100m2 of coloured patterned concrete around the perimeter of the Dwelling.[253] Further, in site plans, there are handwritten notations which refer to 'patterned coloured concrete'.[254]
[253] Exhibit 1, pages 30 and 83.
[254] Exhibit 1, pages 10 and 12.
In their reports and the joint expert report, Mr Chamberlain and Mr Machell agreed that the concrete driveway and paved areas are no longer black where they have faded/discoloured but disagree about the appropriate remedial action.[255]
[255] Exhibit 1, pages 318, 328, 355 - 357, 412 and 480.
Mr Chamberlain expressed the view that the concrete paving and driveway should be taken up and replaced with concrete containing good quality black oxide colourant.[256] He stated that the contract calls for coloured concrete not stained or painted concrete.[257]
[256] Exhibit 1, pages 319, 328, 412.
[257] Exhibit 1, page 412.
Mr Machell expressed the view that Mr Chamberlain's proposed remedy was grossly disproportionate and that the concrete driveway and paved areas can be remedied by using a pigmented stain and suitable sealer.[258]
[258] Exhibit 1, page 357.
The respondent has agreed to undertake work to address the complaint item prior to handover.[259]
[259] Respondent's Closing Submissions at para 34.
We accept the evidence of Mr Chamberlain and Mr Machell as it was not in dispute. On the basis of their evidence, we find that the concrete driveway and paved areas have discoloured/faded.
On the basis of the evidence of Mr Chamberlain and Mr Machell, and the concession of the respondent, we are satisfied and find that the work is faulty or unsatisfactory. This is because the concrete driveway and paved areas have discoloured/faded from the black colour.
We are of the view that it is appropriate for a BRO to be made in respect of complaint item 4 by which the respondent is required to provide black-coloured paving and a black-coloured driveway.
Time for compliance with BRO
A BRO may require that the order be complied with within a time specified in the order.
Given that the Dwelling has not been completed, we consider that it is appropriate for the respondent to comply with the BRO by practical completion of the Dwelling.
Other grievances
The applicants had a number of grievances against the respondent relating to the construction of the Dwelling. The applicants were distressed that they were not able to air all of their grievances at the Hearing. However, the Tribunal is only able to deal with complaint items concerning the construction of the Dwelling referred by the Commissioner. This is why the Tribunal refused to hear evidence about the applicants' grievances which did not relate to the complaint items before the Tribunal.
Conclusion
In relation to CC 1152 of 2022, for the reasons set out above, we are:
(a)satisfied that the respondent has not carried out a regulated building service in a proper or proficient manner or that the regulated building service is faulty or unsatisfactory, in respect of complaint items 1, 2, 5, 8, 11, 21, 24, 25, 26, 27, 32 and 35 and will make a BRO requiring the respondent to undertake remedial work; and
(b)not satisfied that the respondent has not carried out a regulated building service in a proper or proficient manner or that the regulated building service is faulty or unsatisfactory, in respect of complaint items 7, 17, 20 and 36 and these items should be dismissed.
In relation to CC 1152 of 2022, for the reasons set out above, we find that the respondent has not carried out a regulated building service in a proper or proficient manner or that the regulated building service was faulty or unsatisfactory, in respect of complaint items 1 and 4 and will make a BRO requiring the respondent to undertake remedial work.
Orders
CC 1152 of 2022
The Tribunal orders:
1.Complaint items 7, 17, 20 and 36 are dismissed.
2.Pursuant to s 38 and s 36(1)(a) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), the respondent shall, by the time of practical completion, remedy the following complaint items by carrying out the remedial work specified in respect of each such complaint item and make good any affected areas:
Complaint item 1:
Complaint: Standard cappings rather than rolled edge cappings have been fitted to the side barge boards, at the apex of the feature front roof panels and the short barge boards when the eave linings have been eliminated.
Action required: The respondent is required to remove the standard cappings and replace them with rolled edge cappings in accordance with the final plans for the Dwelling.
Complaint item 2:
Complaint: Foam infill strips installed beneath the roof face of the cappings fitted to the barges at the tops of the feature roof panels at the front of the residence are inappropriate as they should be non-ignitable and of material that does not retain moisture. Further, the underside of sheets each side of the valley flashings are unsealed.[260]
[260] Exhibit 1, page 16.
Action required: The respondent is required to replace the foam infill with a non-combustible foam infill that meets AS 1530.3 and to ensure that the non-combustible foam is installed beneath all transverse flashing and capping, beneath the sheets at the gutter lines and each side of the V-shaped gutter beneath the roof panels over the garage and bedroom 1.
Complaint item 5:
Complaint: There are gaps between some of the fascias and the walls.[261]
[261] Exhibit 1, pages 16 - 17.
Action required: The respondent is required to remedy any gaps over 3 millimetres between the metal fascia and the walls to comply with AS 3959.
Complaint item 8:
Complaint: Brick cleaning requires attention.
Action required: The respondent is required to remove mortar smears from the brick walls.
Complaint item 11:
Complaint: Where the apron flashing beneath the vertical linings at the front of bedroom 1 sits on top of the Colorbond capping over the void, water will be trapped between these metal materials, accelerating corrosion.
Action required: The respondent is required to remedy the flashing to prevent water being held between the metal surfaces.
Complaint item 21:
Complaint: Insulation in the roof space is 'gappy'.
Action required: The respondent is required to eliminate the gaps in the insulation in the roof space.
Complaint item 24:
Complaint: The roof tie down requirements have not been met.[262]
[262] Exhibit 1, page 19.
Action required: The respondent is required to tie down the roof in compliance with the engineer's drawings.
Complaint item 25:
Complaint: Perth wind posts are not present.
Action required: The respondent is required to obtain an engineer certification with respect to the wind posts and, if the wind posts have not been installed or have not been installed properly, to carry out an engineered solution.
Complaint item 26:
Complaint: Ceilings have not been back-blocked.
Action required: The respondent is required to back-block the ceilings in those rooms that have more than two joints between plasterboard ceiling sheets to comply with AS 2589.
Complaint item 27:
Complaint: There are gappy areas in the ceiling insulation (e.g., where batts have been removed and not refitted).
Action required: The respondent is required to eliminate gaps in the ceiling insulation.
Complaint item 32:
Complaint: The tiles cannot be put on internal walls due to the finish on them.
Action required: the respondent is required to prepare the internal walls so that tiles can be adhered to them.
Complaint item 35:
Complaint: The wall tiles to each of the vanity units in the semi-ensuite bathroom are not set out with reference to the bench top resulting in wall tile joints aligning about 8 millimetres above stone tops installed to vanity units.
Action required: The respondent is required to raise the vanity units to eliminate the cut tile so that the vanity tops are in line with the grout line.
CC 1153 of 2022
The Tribunal orders:
1.Pursuant to s 38 and s 36(1)(a) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), the respondent shall, by the time of practical completion, remedy the following complaint items by carrying out the remedial work specified in respect of each such complaint item and make good any affected areas:
Complaint item 1:
Complaint: V-shaped gutters have been installed instead of box-gutters and that the V-shaped gutters do not meet the roof drainage requirements of AS 3500.5.[263]
[263] Exhibit 1, page 22.
Action required: The respondent is required to replace the existing V‑shaped gutters with gutters that comply with AS 3500.5 or which are certified as deemed-to-comply.
Complaint item 4:
Complaint: The black finish on the driveway and concrete paving has discoloured/faded to such an extent that it is difficult to discern the concrete is coloured at all.
Action required: The respondent is required to provide black-coloured paving and a black-coloured driveway.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS C Conley, MEMBER
4 JULY 2024
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