CARTER and J-CORP PTY LTD

[2019] WASAT 77

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

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

CITATION:   CARTER and J-CORP PTY LTD [2019] WASAT 77

MEMBER:   MS P LE MIERE, MEMBER

MR W GREGORY, SESSIONAL MEMBER

HEARD:   6 & 7 DECEMBER 2018 AND 26 & 26 MARCH 2019

DELIVERED          :   24 SEPTEMBER 2019

FILE NO/S:   CC 140 of 2018

BETWEEN:   JENNIFER LOUISE CARTER

Applicant

AND

J-CORP PTY LTD

Respondent

Catchwords:

Building Services (Complaint Resolution and Administration) Act 2011 (WA) - Ponding of water in void under modular home - Adequacy of foundations - Adequacy of bracing - Terrain category determination - Appropriate remedial work - Loss of rental income - Order for remedial work rather than monetary compensation

Legislation:

Building Code of Australia 1996, Pt 3.1.2.(c), Pt 3.4.1.2(c)
Building Code of Australia 2011, Pt 3.1.2.(c), Pt 3.4.1.2(c)
Building Services (Complaint Resolution and Admistration) Act 2011 (WA), s 5, s 11(1)(d), s 36, s 36(1), s 36(1)(a), s 36(1)(b), s 36(1)(c), s 38, s 38(1)(a), s 41
National Construction Code 2011

Result:

Application partially successful

Category:    B

Representation:

Counsel:

Applicant	:	Mr JC Yeldon
Respondent	:	Mr A Buchan

Solicitors:

Applicant	:	Pacer Legal
Respondent	:	Hotchkin Hanly

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

Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613

Diploma Constructions (WA) Pty Ltd v South-Central WA Pty Ltd [2015] WASC 289

Gemmill Homes Pty Ltd v Sanders [2018] WASC 179

The Owners of Strata Plan No 74602 v Brookfield Australian Investment Ltd [2015] NSWSC 1916

Total Investments Pty Ltd and Rapley Wilkinson Pty Ltd [2015] WASAT 29

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1. The applicant, Ms Jennifer Carter lodged a complaint with the Building Commissioner under s 5 of the Building Services (Complaint Resolution and Administration)Act 2011 (WA) (BSCRA Act) in respect of a regulated building service not carried out by the respondent, J Corp Pty Ltd in a proper and proficient manner or being faulty or unsatisfactory.

2. The Building Commission referred the complaint to the Tribunal under s 11(1)(d) of the BSCRA Act.

3. The matter was heard on 6 and 7 December 2018 and 25 and 26 March 2019.

4. At a directions hearing on 8 February 2019 the parties agreed relevantly:

   •The respondent could file any further expert evidence including any associated drawings in relation to the issues of:

   (a)sub-slab ventilation;

   (b)sub-slab drainage;

   (c)sliding and impact resistance of the premises; and

   (d)costings to perform remedial work that the respondent considers necessary.

   •The applicant could file any further expert report in relation to the proposed remedy the applicant seeks and costings for that remedy as well as any responsive evidence to the expert evidence filed by the respondent.

Relevant background

1. The complaint concerns a regulated building service carried out by the respondent in relation to a modular home at Baynton, in Karratha.  The modular home is positioned on two concrete precast raft slabs positioned together.  The slab(s) and the modular home (House) was constructed and installed by the respondent in about 2011.  The applicant is a subsequent purchaser of the House.

2. The applicant does not live in the House indeed has never visited the House.  The House is an investment property that is rented out and was, at hearing tenanted.

3. The applicant caused a building inspection of the House to be carried out after becoming concerned about cracking in the walls of the House and the ingress of water at the front door.

4. The building inspector recommended a structural engineer investigate the cause of the cracking as he was of the view that there appeared to be significant movement in the foundations of the House.

5. Some initial investigations were carried out by both parties but the matter was unable to be resolved and a consequential complaint was made by the applicant to the Building Commission.  The complaint lodged at the Building Commission contained 74 items of complaint.

6. Paragraph 124 of the applicant's closing submissions (reproduced below) provides a convenient summary of the items of complaint before the Tribunal and the respondent's position in respect of them.

DETAIL OF COMPLAINT ITEM	STATUS
1.	Site Surface Water Collected and stored under the house	Disputed by Respondent
2.	The foundation system is inappropriate for the Modular type construction on a reactive class M site.	Disputed by Respondent
3.	Structural Bracing Installed in Roof does not meet the minimum requirements of the approved specifications.	Disputed by Respondent
4.	Structural Wall Bracing System on internal walls has no supporting foundations.	Disputed by Respondent
5.	Roof Sheeting Stop Ends Not installed	Conceded by Respondent
6.	Sarking	Conceded by Respondent
7.	Missing Cast Plate and another Cast Plate not fully welded	Conceded by Respondent
8.	Front Entry causing leaks into the house	Conceded by Respondent but not as to scope of works
9.	Expenses relating to this complaint	Disputed by Respondent
10.	Footings	Disputed by Respondent
11.	Building Tie Down to Footings	Disputed by Respondent
12.	Building Tie Down to Footings and Strip Footing appears to be missing altogether	Disputed by Respondent
13.	Stormwater	Disputed by Respondent
14.	Carport	Conceded by Applicant
15.	Warranty	Disputed by Respondent
16.	Water entering the roof space	Conceded by Respondent
17.	Possible Issue with Wiring	Conceded by Applicant
18.	Ceiling and Cornice cracks to entry	Conceded by Respondent
19.	Cornice Cracking to TV Room	Conceded by Respondent
20.	Ceiling Bulges to Lounge	Conceded by Respondent
21.	Ceiling & Cornice Crack to Dining Room	Conceded by Respondent
22.	Numerous Screws Popping Throughout	Conceded by Respondent
23.	Cornice & Ceiling Crack to Kitchen	Conceded by Respondent
24.	Wall Crack to Entry	Conceded by Respondent
25.	Wall Crack and signs of moisture entry to TV Room	Conceded by Respondent
26.	Moisture entry to lounge	Conceded by Respondent
27.	Wall Crack to lounge	Conceded by Respondent
28.	Wall Crack to Kitchen	Conceded by Respondent
29.	Wall Cracks to dining room	Conceded by Respondent
30.	Cracks to all corners of windows bedroom 1	Conceded by Respondent
31.	Cracking to hallway	Conceded by Respondent
32.	Crack to wall and sign of moisture entry bedroom 2	Conceded by Respondent
33.	Signs of moisture entry to master bedroom	Conceded by Respondent
34.	Cracking to skirting and walls master bedroom	Conceded by Respondent
35.	Moisture damage to ensuite	Disputed by Respondent
36.	Large difference in floor level between modules.	Disputed by Respondent
37.	Hallway Door Frames Cracked	Disputed by Respondent
38.	Bathroom Door - out of alignment door and frame	Disputed by Respondent
39.	Cracking and moisture damage to Kitchen	Conceded by Respondent but not as to scope of works
40.	Cracked Tile in Bathroom	Conceded by Applicant
41.	Hole to exterior cladding	Disputed by Respondent
42.	Crack to bottom left and top right of window and vertical crack running up from toe mould	Conceded by Respondent
43.	Crack to Eave	Conceded by Respondent
44.	Wall Cladding Crack	Conceded by Respondent
45.	Hole and screw popping to eave	Conceded by Respondent
46.	Screw popping and crack to cladding	Conceded by Respondent
47.	Buckled Flashing	Conceded by Respondent
48.	Buckled Flashing and screw pop	Conceded by Respondent
49.	Cladding crack	Conceded by Respondent
50.	Movement and cracking in eaves	Conceded by Respondent
51.	Bowed, lifting, cracking, screw popping to deck.	Conceded by Respondent
52.	Crack to floor	Conceded by Respondent
53.	Gaps in flashing & cracking to cladding	Conceded by Respondent
54.	Holes in eave	Conceded by Applicant
55.	Windows not sealed	Conceded by Applicant
56.	Flashing not sealed properly. Should be dek tite.	Conceded by Respondent
57.	Sag in roof line.	Conceded by Respondent
58.	Rust specs in roof.	Conceded by Respondent
59.	Buckled Flashing	Conceded by Respondent
60.	Missing screw line and missing screws	Conceded by Respondent
61.	Metal cuttings and rubbish left on the roof	Conceded by Respondent
62.	Overview of cracks and other defects	Conceded by Respondent
63.	Entrance - Additional vertical wall crack from top right hand window to door frame approx. 3m	Conceded by Respondent
64.	Dining room wall crack - left hand wall, left hand corner from floor to window approx. 400 (assume it means 40cm) And right hand corner window to ceiling approx. 30cm	Conceded by Respondent
65.	Dining Ceiling - visable bubbling approx. 30cm x 15cm	Conceded by Respondent
66.	Dining/Kitchen Area - Two substantial Cracks.	Conceded by Respondent
67.	Modules Join Area	Conceded by Respondent
68.	Kitchen - Right hand side of hot plate area crack 20cm	Conceded by Respondent
69.	Range hood bulkhead appears to have had water. Paint bubbling and shifting	Conceded by Respondent
70.	Kitchen Crack - Ceiling crack approx. 4m with cornice cracks	Conceded by Respondent
71.	Far and dining room – -    Left hand side window crack to cornice approx. 45 cm. -    Lower left side window crack to floor approx. half meter to sirting in this area is shifting. -    Right side window crack from corner window to the floor approx. half meter -    Secondary crack approx. 30cm -    Right hand wall horizontal crack approx. 7.5 feet from ground level and approx. 2.5m long -    Horizontal cracks between window upper window frames	Conceded by Respondent
72.	Ensuite Bathroom -    Cracks both left and right side of window. Left is approx. 10cm right is approx. 20cm. Paint bubbling approx. 5cm	Conceded by Respondent
73.	Loss of income - rents were due to increase a couple of hundred per week with the new tenant taking over late June. I have kept them down due to the cracks and interruptions expected with the upcoming work.	Disputed
74.	Further cracks arising until the footings are rectified.	Disputed

1. Prior to the hearing of this matter a joint expert conferral was held at the House between Mr McParland and Mr Stanes both structural engineers engaged by the applicant and respondent respectively.

2. The Tribunal was informed at hearing that consent orders could be made in respect of the following complaint items: 5, 6, 16, 18-34, 42­50, 52, 53, and 56-72.

3. These complaint items include many complaint item relating to cracks in the House.  The respondent in most part agrees that where cracks are present it is liable for their repair and making good but denies the causing of cracking is due to an engineering issue.

4. The following complaint items were withdrawn at hearing: 9, 14, 17, 40, 51, 54 and 55.

5. Complaint items 7, 8, 15, 35-39, 41 and 74 relate to matters of complaint that are not regarded by the parties as structural or engineering issues and were dealt with as individual items and were addressed by the building experts.

6. At hearing rather than considering the remaining engineering complaint items 1, 2, 3, 4, 10, 11, 12 and 13 individually the parties agreed the matter should be determined in terms of the engineering issues.

7. These items are regarded as items directly or indirectly affecting the structural integrity of the House.

8. In the joint expert report prepared following the conferral, the engineering experts agreed complaint items 1 and 13 (water ponding under the House/site drainage), complaint item 3 (roof and/or wall bracing) and complaint item 8 (water ingress from front entry) required remediation work by the respondent.  The scope of works is not agreed.

9. Further, the engineering experts identified the key engineering issues with the House as:

   •site drainage;

   •foundation adequacy;

   •wall and roof bracing;

   •building stability; and

   •building water tightness/resistance.

10. To determine the foundation adequacy, building stability and adequacy of the wall and roof bracing it was agreed it was necessary for the Tribunal to make findings as to whether there was movement and or deflection of the slab and if, as constructed the House would slide.

11. Complaint item 73 relates to a claim for loss of rental income from the House and was not therefore a matter considered by the engineering experts.

12. Both liability and quantum are disputed in respect of item complaint item 73.

Issues for determination

1. The issues to be determined by the Tribunal are:

   •What is an appropriate method of ensuring adequate and appropriate drainage to the void under the slab (site drainage)?

   •What is an appropriate method of ensuring adequate ventilation to the void under the slab?

   •Is the vertical movement in the slab within tolerance allowed in the Building Code of Australia 1996 (BCA), and Australian Standards 1996 (AS) 3600 - Concrete Structures Code?

   •If the vertical movement of the slab is not within tolerance what is the scope of works to remediate the problem?

   •Is the deflection of the slab within the tolerances set out in (AS) 3600?

   •Has the House been constructed with sufficient mass to prevent sliding under cyclonic wind loads?

   •Is the wall and ceiling bracing inadequate to the extent that the House is not sufficiently braced under cyclonic wind loads, and if so what is the scope of works required to remedy the problem?

   •Are the cracks in the walls of the House within tolerance as set out in AS 2870 ­ Residential Slabs and Footings?

The statutory scheme

1. All following references to sections or parts of legislation are references to sections or parts of the BSCRA Act unless the context indicates otherwise.

2. Section 5 permits the making of complaints about a regulated building service matter in the following terms:

   (1)Subject to the regulations, a person may make a complaint to the Building Commissioner about a regulated building service not being carried out in a proper and proficient manner or being faulty or unsatisfactory.

   …

   (5)The regulations may make provision as to ­

   (a)who can make a building service complaint; and

   (b)any preliminary action required before making a complaint under this section.

   (6)A complaint under this section must be ­

   (a)made in a manner and form approved by the Building Commissioner; and

   (b)accompanied by the prescribed fee, if any.

3. If the Building Commissioner decides to refer the complaint to the Tribunal pursuant to s 38, the Tribunal is then empowered under those provisions as follows:

   38.How State Administrative Tribunal may deal with building service complaint

   (1)If the Building Commissioner refers a building service complaint to the State Administrative Tribunal, the Tribunal may ­

   (a)if the Tribunal is satisfied that the regulated building service that is the subject of the building service complaint has not been carried out in a proper and proficient manner or is faulty or unsatisfactory, deal with the building service complaint by making a building remedy order; or

   (b)otherwise, decline to make a building remedy order.

   (2)The State Administrative Tribunal cannot make a building remedy order requiring a respondent who is not a registered building services provider ­

   (a)to do any work of a value estimated by the Tribunal to exceed the prescribed amount; or

   (b)to pay any amount exceeding the prescribed amount,

   unless ­

   (c)the order is made in respect of a building service that has been carried out by the respondent in contravention of the Building Services (Registration) Act 2011 section 7; or

   (d)the respondent consents to the order being made.

   (3)Unless a greater amount is prescribed by the regulations, in subsection (2) the prescribed amount is $500 000.

   (4)Nothing in this section prevents a building service complaint from being dealt with through a compulsory conference or mediation process under the State Administrative Tribunal Act 2004.

4. Section 36 sets out what a build remedy order may include:

   36.Building remedy order

   (1)A building remedy order consists of one of the following ­

   (a)an order that a person who carried out a regulated building service remedy the building service as specified in the order;

   (b)an order that a person who carried out a regulated building service pay to an aggrieved person such costs of remedying the building service as the Building Commissioner or State Administrative Tribunal, as the case requires, considers reasonable and specifies in the order;

   (c)an order that a person who carried out a regulated building service pay to an aggrieved person a sum of money specified in the order to compensate the aggrieved person for the failure to carry out the building service in a proper and proficient manner or for faulty or unsatisfactory building work.

   (2)A building remedy order may require that the order be complied with within a time specified in the order.

   (3)A person who is not a building service contractor may arrange for a building service to be carried out for the purpose of compliance by that person with a building remedy order referred to in subsection (1)(a) despite the Building Services (Registration) Act 2011 section 7.

General principals to be applied

Liability

1. The phrase 'not being carried out in a proper and proficient manner or being faulty or unsatisfactory' is a broad expression apt to cover a wide range of deficiencies in the construction of a building which can be taken into account.[1]

   [1] Diploma Constructions (WA) Pty Ltd v South-Central WA Pty Ltd [2015] WASC 289 at [31].

2. Builders are not compelled to search for and install superior products over and above what is adequate for the intended purpose.[2]

   [2] Total Investments Pty Ltd and Rapley Wilkinson Pty Ltd [2015] WASAT 29 at [37].

3. A building service that complies with the BCA will not be found by the Tribunal to be faulty or unsatisfactory or to not to have been carried out in a proper and proficient manner except in exceptional circumstances.

Damages or building remedies

1. Where the complaint is one of workmanship, a building remedy order may be made pursuant to s 38 of the BSCRA Act.  Where the complaint is either breach of contract and workmanship or breach of contract a HBWC order may be made pursuant to s 41 of the BSCRA Act.  In both instances the Tribunal is able to make orders for work to be performed or monetary compensation to be ordered.

2. The amount of compensation to be paid is that amount which would put the owner in the position they would have been in had the work been performed correctly or properly together with any loss consequential upon the faulty workmanship or breach of contract.

3. The only qualification to that general principal is that the remedial work sought to be redone must be both 'necessary' and 'reasonable'.  What is 'necessary' and 'reasonable' in any particular case is a question of fact.[3]

   [3] Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613 at [7].

4. The test of 'unreasonableness' is only to be satisfied 'by fairly exceptional circumstances', for example where the innocent party was 'merely using a technical breach to secure an uncovenanted profit'.  Unreasonableness may be established where the cost or complexity is out of proportion to the benefit to be obtained.[4]

The hearing

[4] The Owners of Strata Plan No 74602 v Brookfield Australian Investment Ltd [2015] NSWSC 1916 at [39]-[40].

1. The matter was heard over four days and written closing submissions filed.  The following experts gave evidence:

Applicant

•Mr Martin McParland (MKM Consulting Engineers), Structural Engineer; and

•Mr Paul Gabriel Rafferty, Quantity Surveyor.

Respondent

•Mr Leigh Stanes (Peritas), Structural Engineer;

•Mr Shane Just (Structerre Consulting Engineers), Structural Engineer;

•Mr Richard Machell (Prescient Consulting), Builder; and

•Mr Stuart Peter Wing, Costs Expert.

1. The applicant and Mr Eric Durnthaler, an employee of the respondent, also gave evidence.

The evidence

1. Both parties referred to expert reports from witnesses who were not called at the final hearing.  Where an expert witness was not called and his report is in conflict with an opinion from an expert who did give oral evidence the Tribunal has preferred the opinion of the expert who attended the hearing and had his evidence tested.

2. Where there is a difference between the requirements of the Building Code of Australia 1996 and the Building Code of Australia 2011 the Tribunal finds that the construction standard is that for the Building Code of Australia 1996 as the Building Code of Australia 2011 standard did not come into existence until October 2011 and the building contract for the construction of the House is dated 2 September 2011.

3. Mr McParland approached all the items of complaint raised by the applicant as only being able to be resolved by the filling in of the void.  It was apparent from his email to the applicant of 24 August 2018 (Exhibit 2 page 126) and from exchanges with the Tribunal and the respondent during the course of the hearing that Mr McParland does not accept that constructing a modular home on a suspended slab with a void is an acceptable building method.

Items 1, 2 and 13 ­ Site drainage/ponding under House

1. Both Mr McParland and Mr Stanes agreed that the ponding of water under the House in the void beneath the slab(s) were not acceptable and needed to be remedied.  They also agreed that as constructed the void would need to be ventilated; Joint expert report Exhibit 1 pages 468­473.  They did not agree that it was unacceptable to have a void under the House.

2. Whilst Mr McParland agreed that it was permissible to have a void under the slab if it was drained (ts 74-75, 6 December 2018) he went on to say that drainage of the void would not resolve the problem of having the void because there would still remain issues including the issue of condensation or water vapour permeating through the slab (ts 56, 6 December 2018 and ts 46, 25 March 2019).

3. Mr Stanes is of the opinion that the issue of water ponding could be adequately addressed by preventing water entering under the void by installing concrete foot paths 1 metre wide around the House and installing a mechanism to drain any water that might possibly find its way under the House.

4. Mr McParland is of the opinion that the proposed pathway around the House is not a sufficient impervious layer and does not guarantee that water will not flow under the House, especially in cyclones.

5. Mr McParland did not consider the solution proposed by the respondent to ventilate the void would adequately ventilate the void because no engineering calculations had been done by the respondent to prove the adequacy of its proposed method.

6. Mr Stanes did not consider there would be any problem with condensation or water vapour permeating through the slab(s) as the slab(s) to the House are 50 MPA concrete which had extremely low permeability.  Further any condensation could in any event be dealt with by ventilating the void.

7. Mr McParland agrees the slab(s) are of 50 MPA concrete and this grade of concrete has low permeability.

8. Prompt Engineering in its report dated 12 February 2015 expresses the view that 50 MPA concrete can be regarded as impermeable (Exhibit 1 page 159). 

9. Mr Machell who is not an engineer but is a registered builder with extensive experience in the design and installation of precast concrete slabs also gave evidence in respect of the desirability and or need for sub soil drainage and ventilation of the void.

10. His perspective was from the point of view of compliance with the National Construction Code 2011 (NCC), the BCA and the systems he has used or seen in his experience.

11. Mr Machell is of the opinion that the NCC does not require the installation of a subsoil drainage system as the House as constructed complies with the NCC for the reasons set out in his report (Exhibit 2 page 181).

12. Given the engineering experts in their joint report accepted that subsoil drainage and ventilation was required, it is not necessary or appropriate for the Tribunal to revisit this issue.  However Mr Machell's evidence that Pt 3.1.2.3(c) of the BCA does not require the void to be ventilated is relevant because Mr McParland argues that Pt 3.1.2.3(c) of the BCA does require it to be ventilated and ventilated in a particular way.  Prompt Engineering in its report dated 17 October 2017 (Exhibit 1 page 318) also argues that Part 3.1.2.3(c) of the BCA does not apply.

13. Mr Stanes accepts that it needs to be ventilated and appears to have presumed that it needs to comply with Part 3.1.2.3(c) of the BCA as his proposed ventilation system purports to comply with the deemed to satisfy provisions of Part 3.1.2.3(c) of the BCA.

14. The system of ventilation proposed by the respondent is necessarily different from that set out in the BCA because the House as constructed has a concrete slab(s) suspended between side beams that rest on piled foundations at ground level.  Part 3.1.2.3(c) of the BCA referred to is to a suspended floor system that is either open around the perimeter, or has the potential for openings to be constructed in the supporting walls around the perimeter.  It is therefore not possible to comply with the BCA in the manner set out in Part 3.1.2.3(c) of the BCA (if this is required) using the deemed to comply section, and compliance could only be achieved by using an alternative engineered solution.

15. Mr McParland says that Mr Stanes has not proved the ventilation system proposed by the respondent meets the requirements of the BCA as he has used the deemed to comply section rather than an engineered solution.  Further Mr McParland is of the opinion that first principal calculations would need to be provided by the respondent in order for him and/or the Tribunal to fully assess the proposed solution (ts 37-38 and 58-59, 25 March 2019).

16. In essence Mr McParland did not consider it is possible to remedy the issue of site drainage/water ponding under the House by any other means other than filling in the void.

Item 10 ­ Footings/foundation adequacy

1. The engineering experts agree that the applicable standard for the foundations is AS 2870 Residential Slabs and Footings (Exhibit 2 page 284).  Some movement or deflection is permitted by the Australian Standard so it is a question as to whether the movement in the slab is within the permitted range.  The site classification given by Prompt Engineers is M, which under the relevant standard is a moderately reactive clay soil (AS 2870).  It was pursuant to this classification that the Shire of Roebourne issued the building licence (Exhibit 1 pages 82­89).

2. Due to this site classification the foundation design needs to protect the structure from movement of 20 millimetres to 40 millimetres (Exhibit 1 page 309) in order to meet the performance requirements of AS 2870.

3. The engineering experts agree that soil up to a depth of 1,500 millimetres will be affected by moisture content changes in the soil.

4. It is Mr McParland's opinion that the piles beneath the slab(s) are 1,200 millimetres long which means they will be founded in the area or zone that is reactive and will be displaced vertically.  Further the vertical movement of the piled foundation will transfer into the concrete slab of the House and the House will move vertically.  Mr McParland has calculated the maximum vertical movement to be approximately 24 millimetres relative to a zero point, that is the soil around the external piles will get wet and the external perimeter of the building will be displaced 24 millimetres.  The soil around the central piles (these piles are approximately 4 metres in from the edge and are located beneath the gap between the two slabs) will not get wet and these piles will not move (ts 92-95, 6 December 2018).

5. Mr Stanes has calculated the maximum vertical movement to be 28 millimetres (ts 96, 6 December 2018).  Mr McParland calculated it to be in the order of 24 millimetres (ts 122, 7 December 2018).

6. A long discussion was had with the engineering experts about whether or not this vertical movement in the concrete slab is within the tolerance outlined in AS 3600 (the concrete structures code) that is span/250 for simple supported concrete elements and span/125 for cantilevers.

7. Mr McParland emphasised that there are many different ways the piles could move relative to one another, and suggested the worst-case scenario was across the short width of each slab that is approximately 4.3 metres wide.

8. Some discussion was held as to criteria for serviceability of the slab.  If the slab performs as a cantilever across the short width then the maximum span/movement ratio is 125 and if it does not perform as a cantilever then the maximum span/movement ratio is 250 (ts 127, 7 December 2018).

9. Across the short width of the slab Mr McParland is of the opinion that it should be modelled as a simply supported slab and the limits of movement would then be for 4300/250 which equals 17 millimetres.  This movement is the external wall relative to the central part of the building.

10. Mr Stanes is of the opinion that it should be modelled as a cantilever and the limits of the movement will then be 4300/125 which equals 34 millimetres.

11. Both engineering experts agreed that the movement of the end pile beneath the central thickening beam at the joint in the building represented the movement of a cantilever and this movement is within the tolerance outlined in AS 3600.

12. Mr McParland referred to the cracking in the internal walls as evidence of the slab moving.  In particular he is of the opinion that the pile movement is such as to push the slabs/modules together causing one end of the module to twist clockwise and one end to twist counter clockwise causing cracking (ts 101, 6 December 2018).

13. Mr Stanes gave evidence that he did not see evidence on site that the two modules of the House were pushing together by 30 millimetres as suggested by McParland and that there were no cracks he viewed in the House that would justify a wall movement of that amount or that was consistent with walls bowing or distorting so as to suggest rotational movement (ts 107, 6 December 2018).

14. Mr Stanes considered the cracks that he viewed were perpendicular to the wall and were not a twisting type cracks suggested by Mr McParland (ts 114, 6 December 2018).

15. Mr McParland's assessment of rotation about the short distance of the modules may be correct but in the opinion of Mr Stanes there is no sign of damage consistent with that type of rotation despite the modules being in place for six years (Exhibit 2 page 284).

16. Discussion was had between all the experts as to whether the internal cracking in the House was compliant with the performance criteria of AS 2870 of the Residential Slabs and Footing Code.

17. Different views were offered by the experts as to the cause and extent of the cracking.  The respondent's experts are of the opinion that all the cracks are in the nature of settlement cracks and the extent of them are caused, in some instances because of the absence of back blocking (ts 135, 6 December 2019) or the plaster is not fixed properly (ts 132, 6 December 2019).  Mr Stanes accepted that there is movement of the foundations and some cracking as a result of that movement but the nature of the movement and cracking is to be expected and within the bounds of what is within normal industry practice (ts 124, 6 December 2018).

18. Mr Durnthaler and Mr Machell also considered some of the cracking was caused by the transportation of the modular units to site.  Buildings complying with the performance requirements of AS 2870 (Clause 1.3.1) are expected to experience usually no damage, a low incidence of damage category 1, and an occasional incidence of damage category 2; Where damage categories are defined as follows (Appendix C AS 2870):

    Category 1 - <1.0mm, fine cracks that do not need repair

    Category 2 - <5mm, cracks noticeable but easily filled

    (Note: The above crack widths can be increased by 50% because cracking occurs in easily repairable plasterboard.)

19. Mr Machell counted 49 cracks.  Mr McParland was of the opinion that the amount of cracking could not be considered of 'low incidence' and therefore was not compliant with the performance criteria of the code.  The respondent's experts did not give an opinion as to whether it was of 'low incidence'.

Deflection of ground slab under dead and live loads

1. Mr McParland used hand calculations to calculate the maximum deflection of the ground slab under dead and live loads, with live loads being loads imposed by, amongst other things people being in the House.  He calculated the maximum deflection would be 17.3 millimetres (span/om 230) (ts 67, 7 December 2018).  

2. Mr McParland measured the deflection of the slab on site to be 10 to 12 millimetres and felt that this corresponded well with his hand calculations because at the time there was no one in the building.  In his view the calculated deflection exceeds the requirements of AS 3600, (L/250) (ts 173 and 185, 6 December 2018).

3. Mr Stanes calculated the maximum deflection using a computer program called RAPT and estimated the maximum deflection would be 12.8 millimetres which equals a span/308 (ts 67, 7 December 2018).

4. The engineering experts agreed that the difference in the calculations was due to Mr Stanes considering the slab edge to have some torsional capacity and Mr McParland considered that it did not.

5. Mr McParland pointed to one crack in a corner where the perimeter beams intersect to support his claim that there has been a torsional failure.  Mr Stanes did not agree that this crack represented a torsional failure.

6. Mr McParland expected that his hand calculations would compare favourably with Mr Stanes' computer calculations, but he did mention that the modelling on a computer does produce results that may be more accurate (ts 76, 7 December 2018).

Items 3 and 4 ­ Wall and roof bracing

1. The engineering experts both agreed at their conferral that the wall and ceiling bracing is inadequate.  The extent of the inadequacy and or the remedial work necessary to make it serviceable and compliant was to be further investigated.

2. Areas of the wall sheeting have been removed so the existing bracing can be measured.

3. Mr McParland calculated the wind loads based on terrain category 2 region D and used an internal pressure coefficient of +0.7.

4. Mr Stanes has made his calculations on terrain category 3 region D and used an internal coefficient of -0.3.

5. The City of Roebourne requires buildings to be designed using terrain category 2 region D.

6. More extensive wall bracing will be required if as Mr McParland believes the House as constructed would not be effectively braced when subject to cyclonic wind loads.

7. An issue associated with the bracing design and the mass of the house, is whether the House will slide when subject to cyclonic wind loads.  This greatly depends on what wind loads are placed on the building.

8. Amongst other things the wind load is a function of:

   •wind;

   •region;

   •terrain category;

   •directional factors;

   •shielding; and

   •both internal and external pressure coefficients.

9. AS 1170.2 defines terrain category two as:

   water surfaces, open terrain, with grassland with few well scattered obstructions having heights generally from 1.5-5m with no more than two obstructions per hectare.  For example farmlands and cleared subdivisions with isolated trees and uncut grass.

10. AS 1170.2 defines terrain category three as:

    terrain with numerous closely spaced obstructions having heights generally from 3- 5 m.  The minimum density of obstruction shall be at least the equivalent of 10 fixed obstructions per hectare for example suburban housing or light industrial estates.

11. Mr McParland's evidence was that the entire terrain had to be considered and that as the wind approaches buildings it would go through various terrain zones.  These all need to be considered.  He was shown a zoomed in picture of the House by the respondent in the suburb (which has a great deal more homes in it then when the House was first built) but did not agree that this represented a home situated in terrain category three.

12. The difference in the terrain category was considered by both engineering experts to be a difference of professional opinion.

13. Both engineering experts agreed that if the internal pressure coefficient was +0.7 windows will break and form dominant openings.  Further that if this occurred the House would slide.

14. The engineering experts agreed that the House as constructed would slide if the internal coefficient was +0.7 and terrain category two was used.

15. Both engineering experts also agreed that if cyclone shutters were used over the windows or cyclone glass was installed the internal pressure coefficient would be reduced and the House would not slide (ts 189, 7 December 2018.

16. Both engineering experts agreed on all but the terrain category and the pressure coefficients.

17. Both engineering experts agreed that additional roof bracing was necessary however Mr McParland's opinion as to the degree of roof bracing was included in his one solution which was to fill in the void. He did not provide details of the roof bracing he thought would be necessary independent of the House not sliding or the piles being adequate.

Item 5 ­ Roof Sheeting and Item 6 - Sark

1. The respondent has agreed to carry out any required remedial work.

Item 7 - Missing cast plate not fully welded

1. This complaint item was raised by reference to an email of 12 May 2017 (Exhibit 1 page 236) from Mr Travis Clark of Trasan Contractors to the owner.  Mr Clark was not called to give evidence regarding the alleged defect.

2. In the joint expert report (Exhibit 2 page 112) at para 14(3)(2), Mr McFarlane inspected this item and stated that he considered the welding probably adequate for the design loading.

Item 8 ­ Front entry leaks into House

1. This complaint item was raised by reference to an email from Trasan Contractors of 12 May 2017 (Exhibit 1 page 236).

2. At the commencement of the hearing the respondent conceded this item indicated faulty work and required remediation.  Mr Clark was not called to give evidence and no further evidence was directed at this item by the applicant.  The applicant in her opening indicated that the scope of works was contested as she was seeking to have the front entry reconstructed so that water grades away from the House.

3. Mr Machell gave evidence in relation to this matter in his report of 3 October 2018 and suggested an appropriate scope of remedial works (Exhibit 2 pages 192- 96 paras 6.512-6.60.  The respondent has agreed to do these works.

Items 11 and 12 ­ Building tie down and strip footing

1. These items of complaint were referred to in a structural inspection report of KSCE Pty Ltd of 13 June 2017 (Exhibit 1 page 277).  KSCE was not called to give evidence regarding its report.  These items were not dealt with in isolation but rather as part of the discussion between the engineering experts as to the adequacy of the piles and as to whether the House would slide.

Items 14, 15, 17, 40, 54, 55 and 74

1. These items were not pursued at hearing or no evidence was presented in respect of them.

Items 16 ­ Water entering roof space

1. The respondent has agreed to carry out all necessary remedial works.

Items 18-34 ­ Various cracks

1. The respondent has agreed to carry out all necessary remedial works to make good the cracks.

Item 35 ­ Moisture damage to ensuite

1. This item was raised by the applicant in a report from ANZ Building Construction Pty Ltd dated 28 October 2016 (Exhibit 1 page 161) (ANZ report) who did not give evidence.

2. Mr Machell gave evidence consistent with his report of 3 October 2018 (Exhibit 2 pages 210-211) that the moisture complained of related to condensation and was not faulty building work.

3. His evidence was not challenged by the applicant.

Item 36 ­ Difference in floor levels of modules

1. The only evidence led by the applicant in respect of this matter is a report from ANZ Building Construction Pty Ltd dated 28 October 2016 (Exhibit 1 page 161) (ANZ report) at page 182.  The report consists of two photographs and a heading that says 'Tiles - tile out of level and series of large high and low spots throughout.  Large difference in floor level between modules'.

2. Mr Machell is the only expert who measured the levels of the floor.  He opined that the 20 millimetre difference in the bathroom as opposed to the 11 millimetre difference elsewhere is because the bathroom floor was built up to achieve the required falls (ts 224, 26 March 2019).  He also confirmed that the deviation in floor levels exceed the tolerance by 1 millimetre.

3. Mr Machell also opined that the difference in levels may have been caused by them being installed at slightly different levels.

4. In his report of 3 October 2018 (Exhibit 2 page 211) Mr Machell found there was no differential movement between the slabs and the deviation from flatness of the levels of the modules did not warrant any action.

Item 37 ­ Hallway door frame crack

1. This complaint item was referred to in the ANZ report.  No further evidence and in relation to this matter was presented by the applicant.

2. Mr Machell addressed this item in his report and found that the gap complained of is this less than 2 millimetres and within tolerance.  Mr Machell concludes that the item is not faulty or unsatisfactory and should be considered a home owner maintenance issue (Exhibit 2 page 212 para 6.94).

Item 38 ­ Bathroom door

1. Again the only reference to this report is contained in the ANZ report and no further evidence in relation to this matter was presented by the applicant.

2. Mr Machell addresses this item in his report and did not detect a fault.

Item 39 ­ Cracking and moisture damage in kitchen

1. No evidence other than the ANZ report was submitted by the applicant in respect of this matter.

2. In opening the respondent indicated that an offer had been made to resolve this matter but the offer was not accepted.  This matter was not then dealt with again by the applicant or respondent.

Item 41 ­ Hole to exterior cladding

1. No evidence other than the ANZ report was submitted by the applicant in respect of this matter.

2. This matter was addressed in Mr Machell's report and was characterised as extremely minor and an item of home maintenance (Exhibit 2 page 213 para 6.100).

Items 42-50 and 56-72 ­ Various

1. These items of complaint have all been accepted by the respondent and some have already been rectified.  The respondent does not oppose remediation orders being made in respect of them.

Item 73 ­ Loss of rental income

1. The applicant filed two witness statements (Exhibit 1 page 957) and (Exhibit 14 page 65).  The evidence in respect of this item consisted of market appraisals for rent of various properties similar to the applicant's and in the same area as the applicant's.

2. The applicant also gave oral evidence.  In her oral evidence she alleged that she had rented out the House at a lower rental than she could otherwise have received due to the cracks and to ensure that the tenants gave access for repairs and or inspections of the House and she thereby suffered a loss of income.

3. On or about the 22 December 2017 the rental agreement for the House came up for renewal and while the House was then rented out for $450 per week she says she would have raised the rent but for the problems with the House and so that she could include a clause in the rental agreement requiring the tenants to provide access for inspections and/or repairs.

4. The applicant's evidence was that she could have rented out her property for $500 per week but for the reasons set out above she was only able to rent it for $450.  The applicant's claim is for $50 per week from the 22 December 2017 to the date of hearing.

5. The respondent's evidence in respect of the rental value of the property is contained in the witness statement of its employee Mr Eric Durnthaler.

6. Attached to his witness statement are valuations by licenced valuers of two modular homes of the same type and design as the House.  Both properties are valued at $320,000 with a rental value of $450 per week unfurnished.  The Tribunal notes that those properties are described as being in reasonable condition and no note is made of any significant cracks.

Item 74 ­ Further cracks arising

1. The Tribunal does not have a full understanding of the meaning of this complaint item.  No evidence was submitted in respect of this item and no submissions made.

Analysis and findings

Items 1, 2 and 13 ­ Site drainage/ponding under House

1. Both engineering experts agree remedial action is required to ensure that water does not pond in the void under the House.  They also considered that the void would need to be ventilated if contrary to Mr McParland's view, it was not filled in.

2. Mr McParland put forward a proposal that addresses a number of issues.  The proposal involves:

   •placing props in the void beneath the concrete slab (approximately mid span) ­ these props will provide additional support to the slab and prevent further deflection which Mr McParland deemed excessive; and

   •cutting holes in the slab and filling the void with cement stabilised fill.  Mr McParland suggested this will have a twofold benefit of reducing the clay heave and also adding additional weight to the base of the property to prevent sliding.

Storm water

1. The respondent's proposal to deal with the storm water entering the void under the House requires removing any existing garden beds and placing a concrete path around the House.  The area under the various decks around the House will be filled to prevent water ingress. Provision of these paths is to create an impervious layer such that stormwater will not flow under the House.

2. Further, a slotted drain is to be placed under the House.  The drain discharges into a holding tank in the front yard of the House.  This drainage system is proposed to catch any stormwater that does actually flow into the void under the House which in the opinion of Mr Stanes would be unlikely.

3. Mr Stanes also gave evidence that providing an impervious membrane in the form of a concrete path around the House meets the requirements Pt 3.4.1.2(c) of the BCA.

4. The above proposed system was designed by Mr Shane Just of Structerre Consultants Engineers.  The proposed ventilation and drainage system was then designed checked by Mr Stanes.

5. Mr McParland reviewed the proposed solution and gave evidence that he considered the proposed pathway around the House would not be a sufficient impervious layer and would not guarantee that water would not flow under the House, especially in a cyclone event.

6. Mr McParland suggested that in a storm event the soil would become saturated beyond the pathway and with then be able to flow under the path and beneath the House.

7. Mr Just and Mr Stanes believed this to be highly unlikely.  The Tribunal agrees.

8. The installation of a concrete path around the House is in line with current theory and industry practice on how to address the stabilization of the moisture content in reactive clays.  The CSIRO publishes a memorandum that recommends a path 1 metre wide around a house graded to fall away from the external walls (ts 163-164, 25 March 2019) (BTF 18 CSIRO ­ Foundation maintenance and footing performance.  A home owner's guide).

9. The Tribunal accepts the evidence of Mr Stanes and Mr Just that a concrete path around the House would be a sufficient impervious barrier to prevent water flowing under the House.  Further if a small volume of water was able to flow under the House it would be captured by the drain and piped away.

Ventilation

1. The respondent's proposed ventilation solution involves placing ventilation pipes beneath the perimeter concrete beams of the House to extend vertically outside the House to a minimum of 100 millimetres above the top of the proposed concrete path(s).

2. The pipes are placed at regular centres around the House.  The intention of this proposal is to ventilate the subfloor of the House.

3. Mr Stanes' evidence was that the ventilation system proposed would meet the requirements of the BCA and/or NCC provided the outlet pipes were spaced in accordance with his calculations and additional details such as providing weather caps were installed.

4. Mr McParland's opinion was that the ventilation system suggested by Mr Stanes could not be regarded as a deemed to comply provision because it was an engineered solution.

5. Mr McParland is of the opinion that in order to prove the engineered solution proposed by Mr Stanes meets the requirements of the BCA, Mr Stanes needed to provide additional first principle calculations for Mr McParland to fully assess the system.

6. The Tribunal accepts the evidence of Mr Stanes that the proposed ventilation system would be effective.  Mr Stanes has used the numbers provided in the deemed to comply section of the BCA rather than providing the calculations from first principles to determine if there is sufficient cross flow ventilation beneath the House.  In the Tribunal's view this does not make his calculations invalid.

7. The numbers provided in the BCA are the minimum aggregate subfloor ventilation openings (mm2/m of wall) based on the particular climatic region shown.  It is reasonable to assume that these numbers have been derived from the first principles and have been provided in the BCA because they are adequate.  Therefore in the Tribunal's view an engineer can also use these numbers and assume their adequacy without having to perform the first principle calculations themselves.

8. The Tribunal prefers the evidence of Mr Just and Mr Stanes that the proposed drainage and ventilation system meets the requirements of the BCA to prevent water ponding under the property and would provide sufficient and appropriate ventilation.

9. The Tribunal finds that the solution proposed by the respondent of the installation of a concrete path around the House together with the proposed drainage system is a reasonable solution and in accordance with BCA requirements to prevent water ponding in the void under the House.

10. The Tribunal further finds that the respondent's proposed ventilation system meets the requirements for ventilation under the BCA.

Item 10 ­ Footings/foundation adequacy

Vertical movement

1. The engineering experts all agreed there is movement in the slab.  The issue is whether the movement is or is not within the tolerance set out in AS 3600.

2. Both engineering experts agreed that the movement of the end pile beneath the central thickened beams (at the joint of the building) represents the movement of a cantilever and this movement is within the tolerances outlined by AS 3600.

3. Mr McParland is of the opinion that across the short width of the slab the slab should be modelled as a simple supported slab not a cantilever and the limits of movement would then need to be within the 4300/250 which equals 17 millimetres.  This movement is the movement of the external wall relative to the central part of the building.

4. Mr Stanes was of the opinion that this section of the slab should be modelled as a cantilever and the span on 125 criteria applies and the movement would be within the tolerance permitted in AS 3600 (ts 167, 7 December 2018).

5. The Tribunal finds that the vertical movement of the concrete slab relative to the central support line is more faithfully represented by modelling the slab as a cantilever.  Therefore the maximum vertical movement around the perimeter of the slab calculated by both engineering experts is within the tolerance set out in AS 3600.

Cracking evidence of movement/rotational movement

1. Mr McParland referred to the cracking in the internal walls as evidence of the slab movement.  In particular he was of the opinion that the pile movement is causing one end of the module to twist clockwise and one end to twist counter clockwise causing cracking (ts 101, 6 December 2018).

2. Mr Stanes gave evidence that he did not see evidence on site that the two modules of the House were pushing together in the manner described by Mr McParland and that there were no cracks in the House that would suggest wall movement of an amount that was consistent with the walls bowing or distorting such as to suggest rotational movement (ts 107, 6 December 2018).

3. Mr Stanes said that the cracks viewed by him were perpendicular to the wall and were not a twisting type crack suggested by Mr McParland (ts 114, 6 December 2018).

4. Mr Machell also gave evidence when measuring using a 2 metre long straight edge over the junction between the two slabs the tiles deviated from flat plus 5 millimetres which slightly exceeds the tolerance recommendation provided by AS 3958.1 (Exhibit 3 page 186).

5. Mr Machell in his report (Exhibit 3 page 172 para 189) opined that variation in level between various areas of the floor slab is not indicative of ground movement and is more likely than not that the slabs remained at the level at which they were installed, and/or otherwise within acceptable tolerance for levelness.  Mr Machell also suggested that it is possible the floor slab was installed out of level which has caused a slight twist to the floor slab on the left side of the front and to a greater extent than the right side slab in which level differences are significantly less.

6. All of the cracks seen by Mr Machell in the House were classified by him as damage category one, being less than 1 millimetre in width.  Cracks of this size (but not the number) are not uncommon.

7. Mr Machell opined that the cause of them was not foundation movement but rather they had occurred because joints were not provided for at window openings in the external walls, doors and ceiling.

8. Mr McParland relied solely on the evidence of cracking to support his view that the slab is moving such that it is twisting in a rational motion.

9. Neither Mr Stanes nor Mr Machell agreed with Mr McParland that the cracks are such evidence.  Mr Machell's evidence was that the cracks are of a category 1 and are more to do with general building movement rather than anything related to the structural movement described by Mr McParland.

10. The Tribunal is not persuaded that there is any excessive rotational movement in the slab.

11. The walls and ceiling cracking exceeds the low incidence expressed in AS 2870 and therefore the regulated building service does not meet the performance requirements of AS 2870 and requires remedial work.  The respondent does not dispute that the cracks need to be repaired.

Slab deflection

1. The further issue with the slab is whether or not the slab meets the deflection requirements of the BCA.

2. Mr Machell mentioned that he had measured the maximum deflection of the slab to be 8 millimetres not the 12 millimetres that Mr McParland had measured.

3. The deflection measured by the various experts varied but were closer to the deflection calculated by Mr Stanes.

4. The calculations of Mr Stanes and Mr McParland compared favourably but Mr Stanes performed calculations on a computer package.  Mr McParland agreed that generally such a calculation would be more accurate.

5. Mr McParland calculated a deflection of 17.3 millimetres which exceeds the requirements of AS 3600 by 1.5 millimetres.

6. Mr Stanes made his calculations on the assumption that there would be some torsional resistance of the edge beam.  Mr McParland did not accept the edge beam would provide any torsional resistance.

7. Mr McParland referred to a crack in one corner where the perimeter beams intersect to support his claim that there had been a torsional failure.  Mr Stanes did not agree that the crack represented or signified a torsional failure.  The other corners of the House were not inspected.

8. No damage due to the deflection of the slabs has been reported.

9. The Tribunal does not accept Mr McParland's assessment that at the point where the perimeter beams intercept there would be no or no discernible torsional resistance.

10. In the Tribunal's view it is reasonable to assume some torsional resistance and finds the calculations as to possible deflection of the slab by Mr Stanes to be more accurate.

11. The deflection of the slab that is the bowing of the slab under dead and live load is therefore within the tolerance set out in AS 3600.

Items 3 and 4 ­ Wall and roof bracing

1. Both engineering experts agreed at their conferral that the wall and ceiling bracing is inadequate.  The extent of the inadequacy and the remedial work necessary to make it serviceable and compliant was to be further investigated.

2. The issue is that the applicant says that because of the inappropriate bracing in the wall and roof the House will not be effectively braced, and an associated issue is that it will slide.  Whether or not the property will slide greatly depends upon what wind load is placed on the property.

3. The wind load is a function of a number of matters.  The engineering experts agreed on these except for the terrain category and the pressure coefficients.

4. Mr McParland's evidence was that the home should be considered to be in terrain category 2.  Mr Stanes's evidence was that the property should be considered to be in terrain category 3.  The difference in terrain category was considered by both engineering experts to be a difference in professional opinion.

5. Both engineering experts agreed that with an internal pressure coefficient of +0.7 the windows will break and the property would slide under cyclonic wind loads if terrain category 2 was used.  This is because unprotected windows must be considered as dominant openings in a cyclone unless they can resist a defined impact force.

6. Mr McParland also believed that extensive roof bracing and wall bracing is required to resist the wind loads calculated using category 2 with an internal pressure coefficient of +0.7.

7. The Tribunal prefers the evidence of Mr McParland that the whole terrain needs to be considered and that the House should be designed for category two.  The Tribunal is supported in this view as the original design and building license was issued for terrain category two.

8. Mr McParland also gave evidence that the property would not slide if cyclone shutters we used over the windows or cyclonic glass was installed due to the fact that this would reduce the internal pressure coefficient.

9. Mr McParland also agreed that if cyclone shutters or cyclonic windows were in place then the upgrade on the roof bracing would be closer to what was recommended by Mr Stanes than what he had recommended.

10. The Tribunal finds that further roof and wall bracing is required and that it should be calculated on the basis of the House being in terrain category two with cyclone shutters or cyclone glass installed.

Item 8 ­ Front entry leaks into property

1. No evidence was led by the applicant to suggest the scope of remedial works described by Mr Machell is not appropriate.

Items 11 and 12 ­ Building tie downs and strip footing

1. These items were not dealt with in isolation but rather as part of discussion between the engineering experts regarding the adequacy of the piles and whether the House would slide.

Item 16, 18-34 - Various

1. The respondent has agreed to carry out all necessary remedial works.

Item 35 ­ Moisture damage to ensuite

1. The only expert to give evidence in respect of this matter was Mr Machell who found in his report of 3 October 2018 (Exhibit 2 pages 210-211) that the moisture complained of related to condensation and was not faulty building work.

Item 36 ­ Difference in floor levels of modules

1. Mr Machell is the only expert who gave evidence that measured the levels of the floor.  He confirmed that the deviation in floor levels exceed the tolerance by 1 millimetre.  Mr Machell opined that the difference in levels may have been caused by them being installed at slightly different levels and that any event the deviation from flatness of the levels did not warrant any remedial action.

Item 37 ­ Hallway door frame crack

1. Again the only expert who gave evidence in respect of this matter was Mr Machell.  He addressed this item in his report and concluded that the gap complained of is less than 2 millimetres and within tolerance.  His conclusion was that the item is not faulty or unsatisfactory building work and should be considered at home owner maintenance issue (Exhibit 2 page 212 paragraph 6.94).  His evidence was not challenged on this point at hearing.

Item 38 ­ Bathroom door

1. Again Mr Machell addressed this item in his report and indicated that he did not detect any fault.  His evidence on this item was not challenged at hearing.

Item 39 ­ Cracking and moisture damage in kitchen

1. The respondent indicated the offer to the applicant to carry out certain remedial work in respect to this matter had not been accepted however this matter was not dealt with further by the applicant or respondent during the course of the hearing.

Item 41 ­ Hold to exterior cladding

1. This complaint item addressed in Mr Machell's report was characterised as extremely minor and an item of home maintenance.  His evidence was not challenged at hearing.

Items 42-53 and 56-72 ­ Various

1. These items of complaint have all been accepted by the respondent and some of already been rectified.  The respondent does not oppose a remediation order being made in respect of them.

Item 73 ­ Loss of rental income

1. As set out earlier the evidence of the applicant in relation to this matter was in the form of market appraisals attached to her witness statement together with oral evidence from the applicant herself.

2. The applicant's and respondent's evidence as to the correct rental value and the allegation by the applicant that the House was rented out for a lesser value because of the faulty workmanship is disputed.

3. As was pointed out to the parties by the Tribunal during the course of the proceedings, it has no independent evidence that the House was only able to be rented out for a reduced rent due to the problems with the property.

4. The Tribunal had no opportunity to ask those who gave valuations the basis on which they were given.

5. There is also no evidence, for example from a real estate agent that the problems with the property or the requirement for access required a reduction in rent appropriately fixed at between $70 and $50 per week (ts 139 and 147, 7 December 2018).

6. The evidence before the Tribunal is a number of estimates as to rentable value of the property and the applicant's explanation as to why she rented it out for a lesser amount.

7. The Tribunal notes that the estimates of rent provided also included specific disclaimers as to their accuracy.  They state they may be computer generated and are not guaranteed or warranted (Exhibit 1 page 965).

8. There is a further claim for loss of rental income for the time it will take to carry out the remedial work.  The applicant also raised the issue of paying the moving expenses of the tenants should they have to move out.

9. Mr Stuart Wing opined that it might take three to four weeks to complete the work (ts 98, 26 March 2019).

10. On reviewing the transcript it is not clear if Mr Wing considered the House would need to be vacant for all of the time all the works would need to be completed.  He did say that it would be preferable if the property was empty whilst all the work inside the House was completed.

11. Neither the applicant nor respondent in their submission suggested to the Tribunal what was an appropriate time to allow for the property to be vacant to enable remedial work to be completed.

What building remedy order should be made?

1. By the time the proceedings had concluded the applicant had determined that she wished a monetary order to be made that is an order pursuant to s 36(1)(b) of the BSCRA Act rather than a works order pursuant to s 36(1)(a) of the BSCRA Act.

2. The Court in Gemmill Homes Pty Ltd v Sanders[5] (Gemmill Homes) made it clear that that it is not for the applicant or respondent to choose a remedy but rather it is a matter for the discretion of the Tribunal.

   [5] Gemmill Homes Pty Ltd v Sanders [2018] WASC 179.

3. The applicant seeks a monetary order.  The applicant's preference for a monetary order appears to be premised on the basis that the remedy put forward by the respondent for resolving the issues with regard to the void and the suitability of the slab(s) would not resolve many of the issues.

4. The respondent seeks a works order pursuant to s 36(1)(a) of the BSCRA Act in respect of any remedial work the Tribunal may consider necessary.

5. The respondent submits that none of the factors described in Gemmill Homes which might lead the Tribunal to order payment of a monetary sum due to a dysfunctional relationship, apply to the current situation.

6. The Tribunal agrees.  Additionally, the nature of the proceedings which included engineering experts conferring whilst in the witness box and reaching agreement on matters that had not previously been discussed for example the installation of cyclone shutters or cyclone windows as an alternative to very significant additional wall bracing and/or roof bracing, has resulted in not all of the possible proposed works being costed.

7. Further as the proposed remedial work put forward by Mr McParland was one that covered a great number of the alleged faulty workmanship issues the applicant has not provided costings in respect of a number of individual items of complaint.

8. The Tribunal also considers a works order will give the applicant greater protection that the remedial work will be done properly.

9. The Tribunal has determined it is appropriate to exercise its discretion and make orders where remedial work is found to be necessary pursuant to s 36(1) of the BSCRA Act.

Conclusion

Items 1, 2 and 13

1. Liability is not in issue in relation to these item of complaint.  The respondent accepted having water being able to pond in the void under the property as is currently occurring constitutes a regulated building service not being carried out in a proper and proficient manner or is faulty or unsatisfactory.

2. The Tribunal is satisfied that the respondent did not carry out the regulated building service in respect of complaint items 1, 2 and 13 in a proper and proficient manner or is faulty or unsatisfactory.

3. The applicant says that the void should be filled in with cementiceous grout.  Mr McParland consistently through the proceedings expressed the view that it is not a proper building technique to build a modular home with a void under it.

4. The Tribunal has found that the methodology proposed by the respondent to prevent water ponding in the void together with the installation of a drain and the proposed ventilation system is likely to resolve the issue.

5. The Tribunal rejects the applicant's submission that it is necessary to fill in the void to prevent water entering the void.  The remedial work sought by the applicant is neither reasonable nor necessary.  

6. The proposed installation of a path around the House is in line with current industry standards.  The filling of the void as outlined by the applicant has not, to the Tribunal's knowledge been tried before and is out of proportion to the problem that needs to be resolved.

Items 3 and 4 ­ Wall and roof bracing

1. The respondent accepted that the wall and roof bracing is inadequate.  What was not agreed is the extent of the remedial work necessary.

2. The Tribunal finds the regulated building service in respect of complaint items 3 and 4 was not carried out in a proper or proficient manner or was faulty or unsatisfactory.

3. The extent of the remedial work is dependent upon a number of factors including the terrain category.  The Tribunal has found that the property should be classified as being in terrain category 2.

4. The Tribunal did not have evidence from the applicant as to the extent she believed additional bracing would be necessary if cyclone shutters were installed, however Mr McParland agreed that with cyclone shutters the bracing proposed by the respondent was probably reasonable.

5. The Tribunal finds that the appropriate and proportionate remedial work is for the installation of cyclone shutters or cyclone glass and additional wall and or ceiling bracing calculated on the basis of cyclone shutters or cyclone glass installed.

Item 8 ­ Front entry leaks into property

1. The respondent accepted liability in this matter and has put forward a proposal for remedial works.  The Tribunal accepts that the remedy put forward by the respondent is both proportionate and appropriate.

2. The Tribunal finds the regulated building service in respect of this complaint item was not carried out in a proper or proficient manner or was faulty or unsatisfactory.

Items 10, 11 and 12 ­ Footings/foundation adequacy

1. The Tribunal has found that the vertical movement of the slab due to movement in the piled foundational system is within tolerance set out in AS 3600.

2. The Tribunal is not persuaded that there is or has been any excessive rotational movement in the slab.

3. The Tribunal finds that the deflection of the slab is within the tolerance set out in AS 3600.

4. The Tribunal is not persuaded that the regulated building service in respect of these items of complaint was not carried out in a proper and proficient manner or was faulty or unsatisfactory and declines to make a building remedy order.

Items 5, 6, 16, 18-34, 42-50, 52, 53 and 56-72 ­ Various

1. The respondent did not deny liability for these items of complaint and has either made repairs or intends to do so and consents to orders being made for remedial work to be carried out.

2. The Tribunal finds the regulated building service in respect of complaint items 5, 6, 16, 18-34, 42-50, 52, 53 and 56-72 was not carried out in a proper or proficient manner or was faulty or unsatisfactory.

Item 7- Missing cast plate not fully welded

1. The applicant's expert in the joint expert report considered the welding to be adequate for the design load.  He did not comment as to whether a welding plate was missing.

2. The Tribunal is not persuaded that this item of complaint constitutes faulty or unsatisfactory workmanship and declines to make a building remedy order.

Item 35 ­ Moisture damage to ensuite

1. Mr Machell's evidence that the moisture complained of related to condensation was not challenged by the applicant.  The Tribunal has no reason not to accept his evidence.

2. The Tribunal is not satisfied that work in respect of this item was faulty or unsatisfactory and declines to make a building remedy order.

Item 36 ­ Difference in floor levels of modules

1. Mr Machell is the only expert that measured the levels of the floor.  Mr Machell opined that the difference in levels may have been caused by them being stalled at slightly different levels and that in any event the deviation in floor levels exceeded the tolerance by only 1 millimetre.

2. The Tribunal is not satisfied that this item constitutes faulty or unsatisfactory work and declines to make a building remedy order.

Items 37 and 38 ­ Hallway door frame crack and bathroom door

1. Mr Machell addressed these items in his report and did not detect a fault.  He was not challenged on these items when he gave oral evidence to the Tribunal.

2. The Tribunal is not satisfied that this item of complaint constitutes faulty or unsatisfactory work and declines to make a building remedy order.

Item 39 ­ Cracking and moisture in kitchen

1. In the absence of evidence establishing the nature of the complaint other than the reference in the ANZ report on whether the scope of work sought by the applicant is appropriate the Tribunal is unable to determine if the work is faulty or unsatisfactory.

2. The Tribunal is not satisfied that this item constitutes faulty or unsatisfactory work and declines to make a building remedy order.

Item 41 ­ Hole to exterior cladding

1. The Tribunal is uncertain as to whether this item of complaint was withdrawn (ts 45, 6 December 2018).  No mention of it was made at hearing.

2. The Tribunal is not satisfied that this item of complaint constitutes faulty or unsatisfactory work and declines to make a building remedy order.

Item 73 ­ Loss of income

1. The Tribunal is unable to conclude on the available evidence that firstly the rent the applicant would have been able to achieve is that set out in the estimates provided by the applicant or that the amount of the reduction was necessary to be able to rent the property out and is therefore directly attributable to the faulty workmanship of the respondent.

2. The Tribunal is not persuaded that the applicant will need to pay the moving expenses of her tenants to enable the property to be vacated for the necessary remedial works to be carried out.

3. The applicant said that the tenancy current at the time of hearing was coming to an end and it was likely the tenants would move to a periodic tenancy.

4. In such a situation it is open to the applicant to negotiate with her tenants if they want to stay during the course of the work with some compensation, to move out or for the tenancy to be terminated.

5. The Tribunal finds that the remedial works would take four weeks to complete.  As the applicant is at risk of losing the tenants or having to pay some form of compensation the Tribunal considers it reasonable to allow another month of lost rental being a total of two months.

Item 74 ­ Further cracks

1. Again the applicant's position on this item of complaint is somewhat unclear and the Tribunal is not satisfied that it can constitute a regulated building service not being carried out in a proper or proficient manner or bring faulty or unsatisfactory.

2. The Tribunal is not satisfied that this item of complaint constitutes faulty or unsatisfactory work and declines to make a building remedy order.

Orders

A.In respect of Items 1, 2 and 13:

Pursuant to s 38(1)(a) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), the respondent is to remedy the cause and effect of water entering the void in a manner consistent with that proposed to the Tribunal by the respondent including the laying of a path around the House, the installation of a drain, the ventilation of the void together with any other works that may be found to be necessary. All work to be carried out in a proper and proficient manner making good all affected surfaces including existing surfaces.

B.In respect of Items 3 and 4 Wall and roof bracing:

Pursuant to s 36(1)(a) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), the respondent is to remedy the cause and effect of the faulty workmanship by the installation of cyclone shutters or cyclone rated window glass together with any necessary further bracing to the wall(s) and/or roof calculated on the basis of the modular home at Baynton, Karratha being in terrain category two with cyclone shutters or cyclone glass fitted. All work to be carried out in a proper and proficient manner making good all affected surfaces including existing surfaces.

C.In respect of Item 10 footings/foundation adequacy and Items 11 and 12 building tie downs and strip footing:

Dismissed

D.In respect of Items 5,6, 18­34 and 42­72 ­ various:

Pursuant to s 36(1)(a) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), the respondent is to remedy the cause and effect of the faulty workmanship. All work to be carried out in a proper and proficient manner making good all affected surfaces including existing surfaces.

E.In respect of Items 9, 14, 15, 17, 40, 41 and 74 ­ various:

Dismissed

F.In respect of Item 16 water entering roof space:

By consent pursuant to s 36(1)(b) of the Building Services (Complaint Resolution and Administration)Act2011 (WA), the respondent is to pay the applicant the sum of $670 in respect of this item of complaint.

G.In respect of Item 7 missing cast plate not fully welded:

Dismissed

H.In respect of Item 8 front entry leaks into property:

Pursuant to s 36(1)(a) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), the respondent is to remedy the cause and effect of the faulty workmanship. All work is to be carried out in a proper and proficient manner making good all affected surfaces including existing surfaces.

I.In respect of Item 35 moisture damage to ensuite:

Dismissed

J.In respect of Item 36 difference in floor levels of modules:

Dismissed

K.In respect of Items 37 and 38 hallway door frame crack and bathroom door:

Dismissed

L.In respect of Item 39 cracking and moisture in kitchen:

Dismissed

M.In respect of Item 73 loss of income:

(i)The Tribunal declines to make a compensation order pursuant to s 36(1)(c) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), in respect of lost rental income.

(ii)Pursuant to s 36(1)(c) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), the respondent is to pay the applicant the sum of $900 to compensate the applicant for lost rental while the remedial work is carried out.

N. Costs

By 4 October 2019 the parties are to file a minute of proposed consent orders timetabling any further submissions they wish to make with respect to costs. 

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

MS P LE MIERE, MEMBER

24 SEPTEMBER 2019