CHETTY and KULOWALL CONSTRUCTION PTY LTD - [2023] WASAT 98

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   CHETTY and KULOWALL CONSTRUCTION PTY LTD [2023] WASAT 98
MEMBER:   MS R PETRUCCI, MEMBER
MR R AFFLECK, SENIOR SESSIONAL MEMBER

HEARD:   17 JULY 2023 and 18 JULY 2023
DELIVERED          :   31 JULY 2023
PUBLISHED           :   23 OCTOBER 2023
FILE NO/S:   CC 1936 of 2021
BETWEEN:   SAROJA CHETTY
First Applicant
SIGAMONEY CHETTY
Second Applicant
AND
KULOWALL CONSTRUCTION PTY LTD
Respondent

Catchwords:

Building dispute - Defects in construction - Home building contract work - Breach of contract - Respondent's conduct - Costs of remedial work - Exercise of Tribunal discretion in making a building remedy order - Whether order to remedy or order to pay - Applicants costs of proceeding

Legislation:

Building Services (Complaints Resolution and Administration) Act 2011 (WA), s 5(1), s 5(2), s 11(1)(d), s 36, s 36(1)(b), s 36(1)(c), s 38, s 41, s 41(2)(b), s 49
Home Building Contract Act 1991 (WA), s 3
State Administrative Tribunal Act 2004 (WA), s 46(1), s 87, s 87(2), s 87(3)

Result:

Application partly successful

Category: B

Representation:

Counsel:

First Applicant	:	In Person
Second Applicant	:	In Person
Respondent	:	No Appearance

Solicitors:

First Applicant	:	N/A
Second Applicant	:	N/A
Respondent	:	N/A

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

Brooks and Gransden Building Company Pty Ltd [No 2] [2021] WASAT 86
Byham and Afra Construction Pty Ltd [2014] WASAT 38

REASONS FOR DECISION OF THE TRIBUNAL

Background

We heard the application over two days on 17 and 18 July 2023, following which we delivered our oral decision on 31 July 2023 where we made orders (see below at [88]).
We informed the parties that we would provide written reasons for our decision. Our reasons are as follows.

Introduction

On or about 22 May 2019 Saroja Chetty and Sigamoney Chetty (the applicants) signed a lump sum building contract (contract) with Kulowall Construction Pty Ltd trading as Opus Homes (the respondent) for the construction of a new residential dwelling in the Perth suburb of North Coogee (the property).
Two years later, starting on 22 July 2021, the applicants lodged various building service and home building work contract complaints against the respondent with the Building Commissioner.
The applicants made complaints under s 5(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) alleging the regulated building service provided by respondent was not carried out in a proper and proficient manner, or is faulty or unsatisfactory. The applicants rely on the building expert reports provided by Mr R Hall of Housecalls, Mr L Deshon of Home Integrity Building Consultants and Mr N Harrison, the inspection report of Mr I McGrath of the Department of Mines, Industry Regulations and Safety and finally the costings report provided by Mr G Brackenreg of Gavin Brackenreg Consultant (Megalong Nominees Pty Ltd).[1]
[1] Applicants bundle of documents filed on 30 June 2023 at pages 364 to 821 and 831 to 847.
The applicants also made complaints under s 5(2) of the BSCRA Act alleging various breaches of the contract, including incomplete build with delayed handover.
The Building Commissioner accepted complaint items 1 through to 121 on 7 October 2021. Further, complaint items 122 through to 131 were accepted by the Building Commissioner on 24 November 2021 following the City of Cockburn (City) attending the property and identifying issues with 'water ingress due to driveway gradient, altered floor levels to plans, inconsistent stair rises, fire separation for garage boundary wall not compliant with plans'.[2]
[2] Ibid at page 237.
On 2 December 2021,[3] the Building Commissioner, pursuant to s 11(1)(d) of the BSCRA Act, referred all of the applicants complaints to the Tribunal for determination.
[3] Ibid at pages 237 to 239.
Finally, the applicants seek costs of these proceedings under s 87 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) and s 49 of the BSCRA Act.

The final hearing and evidence before the Tribunal

The application was listed for a final hearing for two days on 17 and 18 July 2023.
The applicants attended the final hearing in person along with their expert, Mr Harrison.
At the final hearing, the applicants informed us that they did not press for the interest expense claimed of $127,846.[4] Consequently, we have not considered the interest expense.
[4] Ibid at page 992.
Further, during the final hearing the applicants sought leave to withdraw various (34) complaint items. We granted leave to the applicants to withdraw those (34) complaint items (see above at [1] and below at [88]).
Excluding the complaint items withdrawn by the applicants the complaints items before the Tribunal requiring determination comprise: 4 (excluding 4(5), 4(8) and 4(9)) to 7, 10 to 15, 20 to 67, 69 to 72, 74 to 81, 83, 88, 92 to 93, 95, 99 to 102, 104, 106 to 116, 121 to 127 and 130 to 131.
The respondent failed to attend the final hearing.
The respondent appears to have replied to the applicants complaint items with comments made on the Scott (Complaint) Schedule[5] prepared by the applicants. However, as the respondent failed to attend the final hearing, it was not possible for us to verify that the comments made in the two columns on the Scott (Complaint) Schedule titled 'Respondent's response' and 'Respondent's evidence' were made by the respondent. We note that most of the comments attributed to the respondent disagree that remedial works are required. However, there were some comments where it was stated by the respondent that remedial works were required to be undertaken by the respondent.
[5] Ibid at pages 250 to 279.
In view of the respondent failing to attend the final hearing, we proceeded to hear and determine the applicants complaints having satisfied ourselves that:
(a)the respondent was given notice of these proceedings including the dates of the final hearing; and
(b)the respondent is a registered Australian private company and a registered building contractor (reg BC101626) and building practitioner (reg BP103029) with a Mr Muhammad Salman listed as the 'nominated supervisor'.
In accordance with the Tribunal's usual practice in matters of this nature, the final hearing was conducted on the basis that all of the documents filed with the Tribunal would be regarded as being in evidence,[6] subject to any objection. At the hearing, the Tribunal marked the following documents, to which we have had regard for the purpose of our determination in these proceedings:
•Exhibit 1 - bundle of documents filed by the applicants on 30 June 2023 (pages 1 to 1008).
•Exhibit 2 - Mr Harrison's amended statement reflecting revised calculations for building cost adjustment of $1,205,369.
•Exhibit 3 - Rawlinsons Cost Management Cost Guide July 2023 Quarterly Update.
[6] Although forming part of 'exhibits', the applicants' contentions and submissions in Exhibit 1 are taken to be submissions, rather than evidence.
Contrary to the orders of the Tribunal, the respondent did not file a bundle of documents on which it wished to rely on at the final hearing.
The applicants called Mr Harrison, an experienced building practitioner of some 45 years, to give expert evidence in these proceedings. Following visits to the property on 26 July 2022, 3 August 2022, 4 August 2022, 5 August 2022 and 1 September 2022, Mr Harrison filed with the Tribunal a written report dated 8 November 2022[7] in relation to faulty and/or unsatisfactory building work at the property.
[7] Above n 1 at pages 527 to 821.
We considered Mr Harrison's written report as well as the oral evidence he gave at the final hearing. We are satisfied that Mr Harrison possess relevant expertise through his experience to express relevant expert opinion in these proceedings. Mr Harrison gave extensive expert testimony and impressed us as a very reasonable and thorough expert witness. We accept in full Mr Harrison's evidence.
At the final hearing, Mr Harrison informed us that Mr Brackenreg, a cost surveyor, whom the applicants engaged, was too unwell to update his costings report dated 5 March 2022 and to attend the final hearing to give oral evidence.
Mr Brackenreg filed his report with the Tribunal dated 5 March 2022 in which he stated that in his view:[8]
[I]t is not possible to prepare an estimate to make good of individual items and that options are for a cost plus contract to make good or to demolish existing building and rebuild to the required standard of compliance.
[8] Ibid at pages 831 to 842.
Mr Harrison filed with the Tribunal his report dated 13 June 2022[9] wherein he states that he reviewed the costings provided by Mr Brackenreg and that he agrees with the costings apart from the costings, which in his view, need to be adjusted to reflect unit rate cost increases since March 2022. Mr Harrison provided revised costings (per Exhibit 2 with reference to Exhibit 3).
[9] Ibid at pages 845 to 847.

Workmanship complaints

The applicants claim $1,172,784 for remedial works in respect of the workmanship complaints.[10] At the final hearing, this figure was revised by the applicants to $1,205,369.[11] This is to demolish and rebuild the residential building at the property.
[10] Ibid at pages 847 and 992.
[11] Exhibit 3.
The Tribunal may make a building remedy order as defined by s 36 of the BSCRA Act in the event of a referral by the Building Commissioner under s 11(1)(d) of the BSCRA Act of a complaint made pursuant to s 5(1) of the BSCRA Act.
The applicants primarily rely upon Mr Harrison's report of 8 November 2022[12] in which he assessed each of the workmanship complaint items and the costs of the necessary remedial work per Mr Brankenreg's report of 5 March 2022[13] and Mr Harrison's report of 13 June 2023 along with Mr Harrison's revised estimated costs.[14]
[12] Above n 1 at pages 527 to 821.
[13] Ibid at pages 831 to 844.
[14] Ibid at pages 845 to 847 and Exhibit 3.
Mr Harrison gave oral evidence for each of the workmanship complaint items for the applicants.
The respondent failed to provide any expert reports.
Having reviewed the building permit and contract drawings and the amended drawings, Mr Harrison identified what he described as 'fundamental' errors in the design and preparation of the drawings including:[15]
•House is too large for the site (re-design is required).
•Floor level for house set too low resulting in front porch below adjacent established paving level, creating a step down and the garage floor level that restricts vehicle access over existing kerb without undercarriage damage.
•Garage and living/dining substantially reduced in length to fit house on site.
•Garage and house floor levels remained unchanged.
•Upper floor plan substantially amended.
•No provision for plumbing pipework discharge from upper-level wet areas.
[15] Ibid at pages 531 to 821.
The following are some of the respondent's departures from the construction drawings as identified by Mr Harrison:[16]
[16] Ibid.
•Stormwater disposal and location of soak wells.
•Incorrect finishes and inconsistent 'acractex' colour to all elevations.
•Location of windows in completed walls.
•Incorrect height of garage floor.
•Ground and upper floor ceiling design and levels.
•Non-compliant stairway.
•Omission of vapor barrier and reinforcing to garage floor.
•Omission of W.P.M to north garage wall.
•Grey concrete instead of exposed aggregate concrete to porch and alfresco.
•Omission of show and TV recesses.
•Construction of north pier to west balcony.
•Failure to install compliant s/steel cavity wall ties.
Further, in Mr Harrison's view, expensive remedial work is required including for:[17]
•Complaint drainage to alfresco, porch and two balconies.
•Deviation from vertical plane in living/dining internal wall and sought external wall.
•Incorrect vanity cabinets.
•Gas service (undersize supply).
•Incorrect stone bench tops.
•Omission of termite barrier to garage.
•Mismatching cornices.
[17] Ibid.
Mr Harrison concluded that, in his view, the only realistic, viable and acceptable solution to remedy all the workmanship complaints is for the demolition and reconstruction of the house. Mr Harrison gave the following reasons for this:[18]
Having considered the impact of the house floor level being designed at least 110mm and constructed another 23mm below design level (total 133mm approximately) creating unnecessary step down from west paved area to entry porch and site drainage issues, a garage reduced by 610mm in depth and unable to be entered by vehicles without undercarriage damage, combined with additional extensive remediation work to comply with [the] [c]ontract and/or [b]uilding [p]ermit … in particular plumbing discharge from upper floor, ground floor ceiling heights and matching of external finishes, the magnitude of the remedial work would be overwhelming[.]
[18] Ibid at page 532.
The applicants also rely on the written inspection report of Mr McGrath. His report is dated 1 August 2022.[19]
[19] Ibid at pages 381 to 468.
In his inspection report, Mr McGrath identified significant issues of non-conforming work including:[20]
[20] Ibid.
•The respondent deliberately changed the height of the garage slab from -1c to 0c to minimise the height difference between the house and the lane. The respondent failed to identify at the set out stage that the house was 130 millimetres lower than the top of the kerb on the plan with the result that the garage floor would be 216 millimetres lower than the kerb which would make access by a standard car impossible without causing damage. The respondent tried to fix the problem by changing the height of the garage floor and in doing so deliberately deviated from the approved plans.
•The setback does not match the approved plans.
•The brickwork does not match the approved plans. There are a large amount of differences with panel sizes, window locations and room sizes. The differences are evident throughout the house on both the ground and upper floors. No approvals were sought from the local government.
•The respondent has not followed the approved engineering drawings.
•Incorrect wall ties used to the cavity walls.
•Balcony not built as per approved plans. Material used is not structurally adequate to support the balcony floor.
•Brickwork to side of the window frame in the granny flat bedroom is out of plumb by 10 millimetres over 600 millimetres level with the result the window has been pushed over and is not compliant with AS2047-2014.
•Ceiling above garage door is out of level running out 10 millimetres over a 1200 millimetres level.
•East elevation E4 has not been built per the approved plans.
•The brick pier that has been added to the garage is not shown on the approved plans. The consequence for the building is that it does not achieve the setback required on the approved site plan.
•Downpipes have been installed over the top of electrical wiring wall penetration that has been left in place for the connection of exterior lights.
•The front elevation does not match the approved plans. Feature tiles, timber screen, balustrades have not been installed.
•Ceiling level in the living/dining area has not been constructed per the approved plans. The ceilings have been lowered to accommodate the plumbing pipes.
•Water ingress into garage due to downpipe misalignment and poorly installed channel grate.
•Texture coat applied in unsuitable conditions and as such a portion has washed away.
•Concrete slap on the first floor cut back (trying to fix the incorrect size of slab) but leaving the mesh exposed to the elements and showing signs of corrosion.
•Weepholes on the first floor are not flush with the external render and instead are protruding leaving an unappealing finish.
•Staircase left in an unsafe condition with no barrier meaning there is a possibility of falling from more than 1metre.
•Exposed washed aggregate installed poorly.
•Living room cavity wall out of plumb by 13 millimetres over a 1.8 metres distance.
•Stormwater pipe not installed below the garage wall footing contrary to the approved engineering design.
•Ceiling level in the alfresco have not been constructed per the approved plans.
•Variance garage ceiling T bar from 70 millimetres and finishing 90 millimetres making a difference of 20 millimetres.
•No allowance made for the installation of air-conditioning vents and they have been poorly installed.
•The kitchen, scullery, laundry, living and hallway have different finished ceiling levels which are very noticeable and have not been constructed per the approved plans.
•Cracking evident to the staircase wall.
•The ground height around the building is too low to provide proper cover to the stormwater pipes.
With regard to the above, it is the view of Mr McGrath that the respondent is either negligent or that the respondent has failed to manage and supervise the work.
As the respondent failed to submit any contrary expert reports, we carefully worked through each of the workmanship complaint items. In doing so we considered the written reports of Mr Harrison and Mr McGrath as well as Mr Harrison's oral evidence at the final hearing.
We are satisfied that the applicants evidence is sufficient to prove each of the workmanship complaint items on the balance of probabilities. This is in respect of complaint items 4(1), 4(2), 4(3), 4(4), 4(6), 4(7), 4(10), 4(11), 4(12), 4(13), 5, 6, 7, 10 to 15, 20 to 67, 69, 70, 71, 72, 74 to 81, 83, 92, 93, 95, 101, 102, 106 to 116, 122 to 127, 130 and 131.
We conclude that the respondent failed to carry out the building service at the property in a proper and proficient manner and that the same is faulty and unsatisfactory for the purposes of s 5(1) of the BSCRA Act.
Later in these reasons we explain why we will order a monetary award rather than requiring the respondent to carry out the remedial works.

Contractual complaints

The contract is a 'home building work contract' as that term is defined in s 3 of the Home Building Contract Act 1991 (WA) (HBWC Act) as it is for the construction of a dwelling that does not exceed $500,000.
The Tribunal may make a home building work contract order as defined by s 41 of the BSCRA Act in the event of a referral by the Building Commissioner under s 11(1)(d) of the BSCRA Act of a complaint made pursuant to s 5(2) of the BSCRA Act.
The applicants claim for additional costs arising from the alleged delay by the respondent in completing the contract, additional holding costs, alleged misleading and deceptive conduct by the respondent and various amount for damages and contract discrepancies.
We first considered the claim by the applicants for the alleged delay of the respondent in completing the contract.
In determining the time to complete the contract, we had regard to the contract documents. The contract at cl 9(a)[21] provides that the time to complete the building of the residential dwelling is 300 days from the date the work commenced or should have commenced. The applicants say the contract should have been completed by 29 July 2020.
[21] Ibid at pages 19 and 28.
The applicants signed a variation on 9 June 2021 which expressly provided that: [22]
Revised practical completion date = 30 June 2021.
[22] Ibid at page 850.

By signing the variation on 9 June 2021, in our view, the applicants agreed to extend the time for the respondent to complete the contract.
We are told by the applicants that the respondent continued work until the respondent abandoned the site on 15 July 2021 as that was the last day any work was done at the property by the respondent.
There is contrary evidence before the Tribunal. First, there is a Notice of Completion of Works (BA7 form) lodged with the City on or about 2 March 2021. Separately, there is a Notice of Cessation (BA8 form) lodged with the City on or about 20 July 2021.
While we accept the BA8 form was lodged on or about 20 July 2021, we accept the evidence of the applicants that the respondent continued work at the property until the respondent abandoned the site on 15 July 2021. By their conduct, we find the applicants extended the time for the respondent to complete the contract to at least 15 July 2021.
The applicants claim 'additional holding costs' of $88,409.86[23] from 30 July 2020 (the date the applicants say the contract should have been completed by – see above at [45]) to 30 June 2023 for rent paid, water rates, electricity and land tax for the property. We do not accept that the holding costs are to be calculated from 30 June 2020 as we have earlier found that the time to complete the contract was extended by the applicants to at least 15 July 2021. In any event, for the reasons explained below, we decline to make an order for these additional holding costs.
[23] Ibid at page 992.
Although not clear from the Scott (Complaint) Schedule, it appears to us that the applicants claim their holding costs in complaint item 99[24] which provides the applicants seek 'compensation for time delay and costs. Claim for damages for not completing works within the contract period. Claim damages from [J]uly 2020 … until occupation of property'.
[24] Ibid at page 271.
Unlike in Byham and Afra Construction Pty Ltd [2014] WASAT 38 where the claim was made for loss of rental income, the claim here is essentially a claim for rent paid by the applicants.
The only evidence before the Tribunal is a letter dated 3 December 2020 addressed to 'To Whom it may concern' from Coulson & Co real estate that the rental value for the property at 18 Andy Zuvela Rd, Beeliar (Beeliar property) would be approximately $525 per week. This is the address the applicants say they paid rent for while their residential dwelling was being built by the respondent.
The applicants did not provide any evidence, such as bank statements or receipts, to support their contention that they paid rent of $525 per week to rent the Beeliar property. Because of this, we decline to make an order in respect of the rent claimed by the applicants.
In regards to the land tax assessment notice for land owned as at 30 June 2021, while the notice was filed with the Tribunal, we find that the applicants would have been liable for the land tax assessment as they extended the contract's completion beyond 30 June 2021 by their conduct to at least 15 July 2021. Because of this, we decline to make an order in respect of the land tax assessment.
For all the other 'additional costs' claimed by the applicants, such as water rates and council rates, as they relate to the 2000 and 2021 financial years, that is before the contract came to an end at least by 15 July 2021 (see above at [50]), we have not considered them and decline to make an order.
The applicants also claim various 'costs from the date of contract completion'.[25]
[25] Ibid at page 992.
The first cost claimed by the applicants is that of installing air conditioning of $9,810. The applicants say the respondent told them to install the air conditioning. There is not written document to substantiate this. In our view, the contract documents before the Tribunal are clear. It provides that air-conditioning is not included.
We decline to make an order in respect of the air conditioning cost and associated electrical work as there is no documentary evidence to support the applicants' contention.
The same applies in regards to solar panels and scaffolding which, apart from an email dated 7 October 2020 from National Electrical Contractors Pty Ltd[26] and an invoice from SSSecure Pty Ltd dated 28 October 2020 there is no documentary evidence before the Tribunal to support the applicants contention that the respondent required the applicants to install these items in 2020.
[26] Ibid at pages 978 to 979.
We decline to make an order in respect of the painting work which the applicants say they paid in February 2022 and cash payments of $1,000 to a tiler.
In summary, we decline to make an order in respect of the 'additional holding costs' and 'costs from date of contract completion' claimed by the applicants. We dismiss those complaint items.
In regards to the claim for damages and refunds on contract discrepancies of $31,344,[27] in our view, a credit of $14,000 (and not the $15,070 claimed by the applicants) in relation to the variation to the amended dimension of the build (smaller house) is to be given to the applicants.
[27] Ibid at page 992.
In regards to the claim by the applicants for benchtops and anticon in the roof,[28] we find those costs are provided for in the contract as provisional sums and have also been provided for in the estimate of costs to demolish and reconstruct the residential dwelling. Because of these findings, we decline to make an order in regards to the claims in respect of the benchtop and anticon.
[28] Ibid at page 9.
For the aircon duct penetration we find that it was also provided for the contract.[29] However, it was not a provisional sum. In our view, the cost is included in the estimate of costs to demolish and reconstruct of the residential dwelling. We therefore decline to make an order in respect of the aircon duct penetration.
[29] Ibid.
We decline to make an order for the fence and gate replacement costs as they are not part of the contract.
Finally, in summary, we will dismiss the complaint items that we have declined to make an order. Those complaint items are 88, 99, 100, 104 and 121.

Remedial works order or monetary order?

The applicants seek a monetary order from the Tribunal. The reasons for this is explained as follows:
[W]ith reference to all the above major defects, neglect in management and supervision, non compliance to approved building permits and conducting works without council approvals … We therefore have lost all confidence and trust in the ability of the builder to remediate defects as the construction to date has many serious; and irreversible defect[.]
In Brooks and Gransden Building Company Pty Ltd [No 2] [2021] WASAT 86 (Brooks) at [8] to [10], 14 and [17] to [19], the Tribunal set out various factors or principles for the Tribunal to consider in deciding whether to make an order requiring a builder to undertake specified remedial works or for an order requiring a builder to pay a monetary amount to an owner.
We have considered the principles in Brooks and find there is an irretrievable breakdown (in the sense as explained in Brooks at [18]) in the relationship between the applicants and the respondent where the applicants say they have lost all confidence and trust in the ability of the respondent to remediate defects.
We are therefore of the view that in order to bring finality to the litigation between the applicants and the respondent, a monetary order (rather than a remedial works order) is appropriate in all of the circumstances of this case.
We accept Mr Brackenreg's position, which Mr Harrison concurs with, that:
[I]t is not possible to prepare an estimate to make good of individual items and that options are for a cost plus contract to make good or to demolish existing building and rebuild to the required standard for compliance.
We reviewed the estimate of the cost to demolish and reconstruct the residential dwelling.
We find the cost to demolish and reconstruct the residential dwelling at the property to be $1,205,369 as calculated by Mr Harrison (who reviewed Mr Brackenreg's calculations and revised the costs to reflect the price fluctuations for the June, September and December 2022 quarters as well as for the 8% escalation forecast for Perth across the 2023 year per the Rawlinsons Australian Construction Cost Guide). The cost includes a builder's administration of 15% and a builder's margin of 10%.
However, the cost of $1,205,369 is to be reduced by $71,000[30] for part of the progress payments that the applicants concede they have not paid to the respondent. Further, a credit of $14,000 is to be allowed to applicants for the reduction in the size of the house.
[30] Ibid at page 930.
In our view, a fair and reasonable cost to demolish and reconstruct the residential dwelling is $1,148,369. This deals with complaint items 4(1), 4(2), 4(3), 4(4), 4(6), 4(7), 4(10), 4(11), 4(12), 4(13), 5, 6, 7,10, 11, 12, 13, 14, 15, 20, 21, 22, 23 to 67, 69, 70, 71, 72, 74 to 81, 83, 92, 93, 95, 101, 102, 106, 107 to 116, 122 to 127, 130 and 131.
We will order that the respondent pay to the applicants the amount of $1,148,369 by way of a monetary order pursuant to s 36(1)(b), s 36(1)(c), s 38 and s 41(2(b) of the BSCRA Act. We will make the amount payable by the respondent to the applicants by 31 August 2023.

Claim for costs of the proceedings

The applicants sought reimbursement of expenses they paid for including expert reports and the attendance of Mr Harrison at the final hearing. The total claimed by the applicants is $24,642 which includes Mr Harrison's costs to attend the final hearing.
No submissions were received from the respondent opposing the applicants claim for a costs order.
In Brooks at [147] to [152] the Tribunal set out the principles to be applied in determining an application for costs. We have applied those principles.
The underlying consideration for the Tribunal when determining an application for costs is whether the justice of the case supports moving away from the initial position that each party should bear its own costs.
In this case, we are satisfied that the objectives of the Tribunal would be advanced and the justice of the case supports an order for the costs of Mr Harrison ($14,850 and $2,689.50) and Mr Brackenreg ($750) which assisted us in determining the application. In particular, we note the respondent failed to participate in the final hearing and failed to provide any expert reports. This required the applicants to incur costs to engage experts and for Mr Harrison to attend the final hearing.
We will order that the respondent pay costs in the amount of $18,289 to the applicants as reasonable costs incurred by the applicants for the proper conduct of the proceedings pursuant to s 49 of the BSCRA Act and s 87 of the SAT Act. We will make the amount payable by 31 August 2023.

Conclusion

The applicants in their application to the Tribunal stated in part:[31]
We have worked hard and honestly, blood, sweat and tears to achieve this block of land and build our dream home for our family. Instead, the past five years have been the most traumatic years of our family's lives, having to endure the emotional, mental and financial stress of this build with no fault of our own.
[31] Ibid at page 2.
At the end of the two day hearing, the following statement was said by the applicants in their closing submissions:[32]
[W]e are reasonable people and understand some minor defects will occur in building a home; however, the extent of the defects present in our home are not acceptable. We paid for a new home, not one that required remedial work to the extent, when combined, required demolition and rebuild.
[32] ts page 207, 18 July 2023.
We agree with the applicants closing submission that the extent of the faulty or unsatisfactory work by the respondent is not acceptable.
For the reasons given above, we make the following orders.

Orders

The Tribunal orders:
1.Pursuant to s 46(1) of the State Administrative Tribunal Act 2004 (WA), the applicants have leave to withdraw the following complaints items: 1, 2, 3, 4(5), 4(8), 4(9), 8, 9, 16, 17, 18, 19, 68, 73, 82, 84, 85, 86, 87, 89, 90, 91, 94, 96, 97, 98, 103, 105, 117, 118, 119, 120, 128 and 129 from the proceeding and those complaint items are withdrawn from the proceeding.
2.Pursuant to s 36(1)(b), 36(1)(c), s 38 and s 41(2)(b) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), the respondent shall pay to the applicants $1,148,369 by 31 August 2023 (in respect of complaint items: 4(1), 4(2), 4(3), 4(4), 4(6), 4(7), 4(10), 4(11), 4(12), 4(13), 5, 6, 7,10, 11, 12, 13, 14, 15, 20, 21, 22, 23 to 67, 69, 70, 71, 72, 74 to 81, 83, 92, 93, 95, 101, 102, 106, 107 to 116, 122 to 127, 130 and 131).
3.All other complaints are dismissed (complaint items: 88, 99, 100, 104 and 121).
4.Pursuant to s 49 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) and s 87(2) and 87(3) of the State Administrative Tribunal Act 2004 (WA), the respondent shall pay to the applicants $18,289 by 31 August 2023.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R PETRUCCI, MEMBER
23 OCTOBER 2023