CHAPMAN and BAYLEY - [2012] WASAT 67

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

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

CITATION: CHAPMAN and BAYLEY [2012] WASAT 67

MEMBER: MS A DAVIES (SENIOR SESSIONAL MEMBER)
DR A ZURHAAR (SESSIONAL MEMBER)

HEARD: 23 MARCH 2012

DELIVERED : 28 MARCH 2012

PUBLISHED : 5 APRIL 2012

FILE NO/S: CC 194 of 2012

BETWEEN: BRONWYN CHAPMAN
Applicant
AND
WILLIAM STANLEY BAYLEY
Respondent

Catchwords:

Building Services (Complaint Resolution and Administration) Act 2011 (WA) Whether roof restoration unsatisfactory

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011(WA), s 3, s 5(1), s 9, s 11(1)(d), s 36(1), s 38, s 38(1)(a), s 43
Home Building Contracts Act 1991 (WA), s 3, s 15A, s 17(a)(ii)
Home Building Contracts Regulations 1992 (WA), reg 2A

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: Self-represented
Respondent: Self-represented

Solicitors:

Applicant: Self-represented
Respondent: Self-represented

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The respondent, a registered painter, performed certain roof restoration works on the applicant's tiled roof including a 'high pressure clean' using a water hose.
The applicant's complaint was that the roof restoration resulted in damage and leaks causing mould and ceiling damage, and was not successful in sealing the roof to a watertight standard.
The Tribunal found that the applicant had not established that the respondent's workmanship in carrying out the high pressure cleaning of the applicant's roof tiles or otherwise was unsatisfactory within the meaning of s 38(1)(a) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA).
The Tribunal ordered that the application be dismissed.

Introduction

This is an application under the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (Act).
Having accepted a building service complaint, the Building Commissioner is required to cause an investigation of the complaint by an authorised officer under s 9 of the Act and, after having regard to a report of the authorised officer, may, inter alia, refer the complaint to the State Administrative Tribunal (Tribunal) for it to deal with under s 38 or s 43 of the Act. This matter was validly referred to the Tribunal pursuant to s 11(1)(d) of the Act on 31 January 2012.
The Tribunal's powers upon referral to it of a building service complaint are set out in s 38(1) of the Act including in the following terms:
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.
A 'building service complaint' is defined in s 5(1) of the Act and is a complaint about a regulated building service not being carried out in a proper and proficient manner, or being faulty or unsatisfactory.
A 'regulated building service' is defined in s 3 of the Act and includes home building work that is carried out by a person for another person under a contract or arrangement for gain or reward.
'Home building work' is defined in s 3 of the Act and s 3 of the Home Building Contracts Act1991 (WA) (HBC Act) and includes repairing and constructing a dwelling, which includes painting.
A 'building remedy order' is defined in s 36(1) of the Act and includes an order that a person pay such costs of remedying the building service as the Tribunal considers reasonable, and an order to compensate an aggrieved person for a failure to carry out the building service in a proper and proficient manner or for faulty or unsatisfactory building work.

The nature of the complaint

Mr William Stanley Bayley (respondent), who is a registered painter, offered to complete certain roof restoration works on the tiled roof of the home of Ms Bronwyn Chapman (applicant) in Bullcreek for $3,800, excluding GST, by tax invoice dated 10 July 2009. It is not in dispute that the works were performed by the respondent on the applicant's roof shortly after that, in July 2009. This tax invoice, which is at page 82 of the hearing booklet (booklet), therefore constituted the written terms of the home building works contract (Contract) between the parties.
On 23 September 2011, the applicant served notice on the respondent of her proposed complaint. The applicant's complaint dated 15 December 2011 at page 48 of the booklet, which is a complaint about the standard of work, is that the roof restoration resulted in damage and leaks causing mould and ceiling damage, and was not successful in sealing the roof to a watertight standard. The remedy the applicant seeks is repair of ceiling damage and to repaint internally, replace mouldy insulation and repair or replace external roof tiles to a watertight condition.
Complaint forms indicate that complaints may also be about a noncompliance with a contract, as distinct from the standard of work. Pursuant to s 17(a)(ii) of the HBC Act, this can include misleading and deceptive conduct under s 15A of the HBC Act. Consideration of broader contractual and other issues in this case was not open to the Tribunal, because the contract was for less than $7,500 contracts under this amount are excluded by reason of the definition of contracts in the HBC Act and the prescribed amount in reg 2A of the Home Building Contracts Regulations1992 (WA).
At a directions hearing on 21 February 2012, it was ordered, inter alia, that, on or before 28 February 2012, each party file and provide to the other party all documents on which they wish to rely at the final hearing not already on the Tribunal's file, including any expert reports, photographs and quotations, or other documents relevant to the costings of the complaint items to be determined by the Tribunal.
The remedy being sought by the applicant was effectively amended by the document filed with the Tribunal on 28 February 2012 at page 81 of the booklet. The applicant now seeks compensation of $7,242, comprising a refund of $3,800, the cost of $778 for the two inspector's reports, $100 for the Building Commission fee, $1,089 for ceiling replaster and restrapping, $1,225 for ceiling repainting and $250 for a day off work.
Each party provided written details of its respective position.
The applicant's evidence included a building inspection report by Mr Steve Walton dated 14 December 2011 and another building inspection report by Mr Stephen Schultz undated but in respect to an inspection on 17 November 2011, both of which included various photographs. These reports are at pages 60 66 and pages 88 93 of the booklet respectively, with Mr Schultz' photographs being at various pages of the booklet. The applicant's evidence also included a document showing monthly rainfall including in 2010 and 2011. The applicant brought to the hearing a tile from her roof with a hole in it. This tile was admitted as Exhibit 2.
All photographs in the booklet were admitted into evidence.
The respondent also relied on the report by Mr Schultz dated 14 December 2011 and brought him to the hearing as an expert witness for the respondent. Further, the respondent tendered into evidence what appeared to be an email from Mr Walton dated 22 March 2012 in which Mr Walton confirmed that he carried out an inspection of the applicant's roof and stated that this inspection was visual,.

only using general building experience but with no specialist technical knowledge of roof coatings. This email was admitted as Exhibit 4. The respondent's evidence also included his company's warranty, at page 148 of the booklet, and various evidence of rainfall, including on 22 and 23 Marchִ2010, at pages 176 192 of the booklet.

There was no Building Commission inspection report because the applicant had formed the view that it was necessary to have the ceiling strapped to ensure that it did not collapse and, once that was done, ordered a new roof. After having been advised by the Building Commission that an inspection takes four to six weeks, the applicant decided not to postpone the replacement of the roof and requested that this matter be sent straight to the Tribunal. This is apparent from the emails between the applicant and the Building Commission, at pages 19 ۈ 29 of the booklet.

The hearing and findings

Having had the benefit of hearing both sides' submissions, and the evidence, the Tribunal outlines the pertinent aspects of the hearing and sets out its findings in relation to the workmanship issues.
In oral evidence, the applicant said that, in 2009, she had called the respondent after receiving his advertising flyer in the mailbox. A copy of the respondent's two advertising flyers is at pages 83 and 84 of the booklet. The applicant said that, at that time, there had been a leak in the front bedroom, and a dark water stain had developed in the kitchen above the glass sliding door. The applicant said that the photographs at page 127 of the booklet show the area in the kitchen above the glass sliding door that had been her original concern. The applicant also said that the leak in the front bedroom had been fixed and that there had been no problem with leakage in 2010 but that, in 2011, it became apparent that the problem in the kitchen had not been fixed because the staining had become worse and had spread. The applicant's evidence was also that the respondent had promised a watertight roof at the time of the job see, for example, the applicant's statement at page 2 of the booklet.
One of the items in the written terms of the Contract between the parties was to conduct a 'high pressure clean' of the applicant's roof tiles. Another of the items in the written terms of the Contract between the parties was to replace unserviceable tiles. The applicant contended that the whole of the roof was cleaned by the respondent's son and another young man using a high pressure water hose and that this had caused extensive damage to the roof. More particularly, the applicant contended, in essence, that the high water pressure had:
a)caused the metal around the skylight to be bent out of shape and the seal broken, which resulted in leaking; and
b)put a hole in the tile (Exhibit 2) from the area of the roof over the back rear bedroom and caused pitting, holes and cracks to the roof, including to a tile above the air conditioner which resulted in leaking.
The applicant said in oral evidence that, on the day of the pressure clean, the skylight was completely flooded and the kitchen had to be mopped up with towels. She also said that the photograph at page 118 of the booklet showed some of the areas to which the staining had spread, including around the skylight, the air conditioner and the ceiling fan, as well as some cracking that had developed along the cornices. The applicant utilised the respondent's photograph at page 169 of the booklet to explain that the kitchen area is at the centre of the house towards the pool. Photograph 22, at page 92 of the booklet, also shows that the skylight and the air conditioning unit are in the same portion of the roof.
The applicant relied, in particular, on three photographs, at page 113 of the booklet, which showed the condition of the metal flashings where the skylight is fitted to the roof tiles. The applicant also said that the second photograph at page 128 of the booklet showed the staining and damage to the ceiling around the skylight.
The applicant also relied in particular on the photographs at pages 91, 97 and 99 of the booklet showing heavy pitting over large areas of the roof, on the photographs at pages 114 and 115 of the booklet showing a severe crack and moisture seepage, as well as on Mr Walton's report, and his conclusion at page 88 of the booklet, that it appears that excessive water pressure used to clean the roof has caused severe pitting to the surface and, subsequently, that the paint coat has not sealed the tiles adequately, resulting in the roof cover not being watertight. The applicant also referred to the fact that Mr Schultz' report identified the severe crack above the air conditioning unit as causing the leakage.
The applicant said in oral evidence that she was not sure exactly how the staining to the ceilings had become worse and spread, except that she believed the condition of the roof was made worse by the service provided by the respondent.
The Tribunal notes the applicant's documents, at pages 70 and 86 of the booklet, showing that the total rainfall over Perth for 2009/2010 was below to very much below average. The Tribunal also notes the copy of a page from the respondent's website, at page 85 of the booklet, that includes a statement that the 'Roof Man can stop leaks or restore your roof to its former glory'.
The respondent gave oral evidence, including that 'watertight' is not a word he has or would use. He referred to the copy of the page from his website at page 85 of the booklet. The respondent also later made the point that the second photograph at page 136 of the booklet is an example of a crack in a tile that he would not replace because it was not unserviceable.
The respondent called Mr Schultz as an expert witness. Mr Schultz said that he is a carpenter and a builder, with expertise around roofing structures rather than roof coatings. He said that this expertise extends to the pitch of tiles and gaps between valleys. He said that he visited the applicant's house on 11 October 2011 to inspect the 'problematic roof leaks'. He made some observations, including that the insulation was not at that time damp, but could not find the source of leaks because it was a dry day. He came back on 17 November 2011 when it was a bit more than a drizzle. On that day, he identified only one place where water was dripping through the roof tile into the roof cavity onto the insulation, and that was from a broken tile which had previously been glued together, above the air conditioning unit and just below the ridging of the roof. He said that his photograph at page 114 of the booklet shows this tile. He said he did not find any cracks or chips to any other tiles which could cause the water damage to the applicant's ceiling, other than the single tile above the air conditioning unit. He could not tell when or how this tile was broken and repaired.
Mr Schultz said that he did not see anything that was sufficient to cause the amount of damage the applicant had suffered. He also said that the rain on that day was not adequate to test the valleys.
Mr Schultz said that the dampness seen in the tiles at page 115 of the booklet was not enough to cause dampness to the insulation. He also said that, after 30 years, ceilings tend to need to be restrapped due to age. Further, in his opinion, the cracking in the cornices that is present was due to the age of the home. He said that the tiles on the applicant's roof seemed adequately sealed and the pitting in the tiles did not change this.
Mr Schultz said that one year of water leaking onto a ceiling can cause paint to peel and mould to develop. After 20 years, there would be rotting.
During crossexamination by the applicant, Mr Schultz said that his moisture meter did register some moisture inside the house at the ceiling, even though the roof cavity was not damp at that time.
The Tribunal notes Mr Schultz' written comment in his report, at page 63 of the booklet, that there were areas on top of the insulation showing visible signs of previous water ingress directly below the line of tile overlay, and that this may have been caused during the process of high water pressure cleaning. The Tribunal also notes Mr Schultz' written recommendation to obtain a second opinion from a roofing tile manufacturer regarding the condition of the roof tile before and after the new application of sealant.
The parties each successfully made other points that are not necessary for resolving whether the respondent's workmanship in carrying out the work on the applicant's roof tiles was satisfactory.

Conclusion

The Tribunal finds that the applicant has not established that the respondent's workmanship in carrying out the high pressure cleaning of the applicant's roof tiles or otherwise was unsatisfactory within the meaning of s 38(1)(a) of the Act.
The Tribunal does not accept the conclusion reached by Mr Walton. The Tribunal accepts the evidence of Mr Schultz. The applicant has not established any cause of the leaking and damage to her ceiling, other than the broken tile above the air conditioning unit, and has not established that this tile was broken or rebroken during the high pressure cleaning or by the respondent it is equally possible on the evidence that this was caused by something or someone else, either during the servicing of the air conditioning unit or for some other reason. The Tribunal does not accept that the hole in the tile (Exhibit 2) was caused by high pressure water.
The Tribunal considers that there was a cause to the applicant's leak into the kitchen area which was not established by the evidence. The Tribunal accepts the applicant's evidence that, on the day of the pressure clean, water came into the kitchen and that she believed that it came through the skylight. However, the applicant has not established that the damage to the skylight surrounds, the tile above the air conditioning unit, or any ceiling stains, mould and sagging was caused by the high pressure cleaning or by the respondent. The photographic evidence showed localised stains of unclear age and cause.
There was no evidence to show that the applied roof coating was defective or not of a satisfactory standard.

Order

The Tribunal makes the following order:
For the reasons given the application is dismissed.

I certify that this and the preceding [42] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS A DAVIES, SENIOR SESSIONAL MEMBER