CLIFF and BUILDING CORPORATION WA PTY LTD - [2012] WASAT 83

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

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

CITATION: CLIFF and BUILDING CORPORATION WA PTY LTD [2012] WASAT 83

MEMBER: MS A DAVIES (SENIOR SESSIONAL MEMBER)
MR C MARSH (SESSIONAL MEMBER)

HEARD: 11 APRIL 2012

DELIVERED : 19 APRIL 2012

PUBLISHED : 1 MAY 2012

FILE NO/S: CC 196 of 2012

BETWEEN: SUZANNE CLIFF
LOU CLIFF
Applicants
AND
BUILDING CORPORATION WA PTY LTD
Respondent

Catchwords:

Building Services (Complaint Resolution and Administration) Act 2011 (WA) - Whether certain regulated building services are unsatisfactory

Legislation:

Builders' Registration Act 1939 (WA), s 12A(3)
Builders' Registration Regulations, reg 23
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(1), s 9, s 11(1), s 11(1)(d), s 36(1), s 38(1), s 38(1)(a), s 133
Building Services (Complaint Resolution and Administration) Bill 2010 (WA)

Result:

Application granted

Category: B

Representation:

Counsel:

Applicants: Self-represented
Respondent: Self-represented

Solicitors:

Applicants: Self-represented
Respondent: Self-represented

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

Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 239 CLR 420; (2009) 260 ALR 628
Mahony and J. Kruschich (Demolitions) Proprietary Limited (1985) 156 CLR 522; (1985) 59 ALR 722
March and E. & M. H. Stramare Pty Limited (1991) 171 CLR 506; (1991) 99 ALR 423

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicants' complaint concerned the suitability of their kitchen benchtops, which had become damaged. The applicants' home was built by the respondent, and purchased from Breaksea Developments.
The Tribunal found that the regulated building service was not carried out in a proper or proficient manner within the meaning of s 38(1)(a) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), in that the Builder did not make available special care instructions required in respect to part of the dwelling constructed. The Tribunal further found that the regulated building service was faulty and unsatisfactory within the meaning of s 38(1)(a) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), in that the Builder used a product in the construction of a dwelling that was not suitable for its intended purpose.
The Tribunal also found that the appropriate remedy was for the respondent to remove the applicants' current kitchen benchtops, including the splashback, and to replace them with essa stone or a similar product of a similar cost as preferred by the applicants, in a colour selected by the applicants.

Introduction

This is an application under the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (Act).
Since 29 August 2011, when the Act came into operation, workmanship dispute complaints (originally made to the Building Disputes Tribunal, but in respect of which no substantive hearing had yet commenced) were transferred to the Building Commission pursuant to s 133 of the Act. The Building Commissioner is required to cause an investigation of any such complaint by an authorised officer under s 9 of the Act and, after having regard to a report of the authorised officer, may determine that one of the alternative courses of action available under s 11(1) of the Act is to apply. This matter was validly transferred to this Tribunal pursuant to s 11(1)(d) of the Act.
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 3 and 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 a building service carried out by a registered builder.
A 'building remedy order' is defined in s 36(1) of the Act, and includes an order that a person who carried out a regulated building service remedy the building service as specified in the order.

The nature of the complaint

In May or June 2010, Mr and Mrs Cliff (applicants) purchased 48 Breaksea Drive, North Coogee (Property) from Breaksea Developments. A copy of the contract of sale was not included in the hearing booklet (booklet) but in a letter to the applicants dated 24 June 2011, which is at pages 14 15 of the booklet. Mr Brad Walpole, the General Manager of Building Corporation WA Pty Ltd trading as Giorgi Exclusive Homes, referred to the contract of sale between the applicants and Breaksea Developments being entered into on 3 May 2010. Further, in their statement to the Building Commission, which is at page 20 of the booklet, the applicants referred to moving into the Property in June 2010. These facts were not in dispute.
The Property was built for Breaksea Developments by Building Corporation WA Pty Ltd, which is a registered builder, registration no 9467. The application for a building licence dated 19 March 2007 is at page 11 of the booklet.
After a couple of months, the applicants had become dissatisfied with their kitchen benchtops. This culminated in the applicants filing a complaint dated 13 July 2011 (Complaint).
At a directions hearing on 21 February 2012, it was ordered, inter alia, that the only matter in issue was complaint item 1, 'condition and durability for everyday use of our kitchen benchtops', identified in the Building Commission Inspector's Report dated 19 December 2011 (BC Report).
Each party provided written details of their respective positions.

The hearing and findings

Inspector Martelli from the Building Commission attended the hearing and gave oral evidence.
Having had the benefit of hearing both sides' submissions and the evidence, the Tribunal sets out its findings.

Preliminary issues

The Complaint is against 'Buildwise Builders' or 'Breaksea Developments'. In the Building Commission Investigation Report dated 31 January 2012, at pages 31 - 33 of the booklet, the Building Commission specified 'Building Corporation WA Pty Ltd' as the respondent.
In oral evidence, in response to an inquiry by the Tribunal, Mr Walpole explained that Buildwise Builders had been a trading name of Building Corporation WA Pty Ltd and that Mr Claude Giorgi and Mrs Claretta Giorgi were the directors and shareholders of that company. Mr Walpole also explained that Breaksea Developments had been set up to build seven homes and that Mr Giorgi was the sole director with numerous investors. Current company details are also at the bottom of Giorgi Exclusive Homes letterhead, for example, at page 14 of the booklet.
By email to Mr Walpole dated 22 June 2011, which is at page 24 of the booklet, the applicants stated, inter alia, that they were dissatisfied with the kitchen benchtops as almost everything marked them, and requested that the kitchen benchtops be replaced with a suitable fitforpurpose product. The applicants further stated that if they did not receive satisfaction they intended to take the matter further.
The Complaint itself did not specify the remedy that was sought. At the hearing, Mrs Cliff, on behalf of the applicants, confirmed that the applicants sought that the kitchen benchtops be replaced and that essa stone would be satisfactory.
The Tribunal finds that the Complaint is against Building Corporation WA Pty Ltd (hereinafter referred to as the Builder) and Breaksea Developments (hereinafter referred to as the Developer).
The Tribunal also finds that the email of 22 June 2011 to Mr Walpole was a preliminary notice to the Builder in substantial compliance with s 12A(3) of the Builders' Registration Act 1939 (WA) (now repealed) and in particular with reg 23 and Form No 12 in the First Appendix of the Builders' Registration Regulations (now repealed). The Tribunal finds that, by reason of the reference to the email of 22 June 2011 in a letter by Mr Walpole, at pages 37 and 38 of the booklet, the Builder received the preliminary notice. The Tribunal also notes that a further preliminary notice, which is at pages 27 and 30 of the booklet, was emailed to Mr Walpole on 30 October 2011, and Mr Walpole's response to it dated 1 November 2011 which is at page 23 of the booklet.
There is no evidence that either email, of 22 June 2011 or 30 October 2011, was received by the Developer, although the Tribunal notes that the address and telephone number of the Builder and the Developer as specified, for example, in the building licence dated 19 March 2007, at page 11 of the booklet, are the same.

The Tribunal's power to make a building remedy order

Where what is in issue is a workmanship issue, as is the case in this application, it is not necessary for a contractual relationship to exist in order for the Tribunal to make a building remedy order against a builder pursuant to s 36(1) of the Act. This is because a 'regulated building service' includes a building service carried out by a registered builder (s 3 of the Act), a person may make a complaint about a regulated building service (s 5(1) of the Act), and the Explanatory Memorandum to the Building Services (Complaint Resolution and Administration) Bill 2010 (WA) confirmed at page 10 that s 5(1) of the Act:
… allows not only a consumer of a building service to make a complaint, but also any person adversely affected …
A complaint about a regulated building service hinges upon the quality of performance of the regulated building service. If the quality of the service was not carried out in a proper and proficient manner or is faulty or unsatisfactory, then the making of a complaint is warranted.
The Tribunal finds, therefore, that a building remedy order in favour of the applicants is potentially available against the Builder. It is not potentially available against the Developer. Recourse may be available against the Developer pursuant to the contract of sale or around the circumstances of the sale, but that is outside of this Complaint.

Item 1: condition and durability of the kitchen benchtops

During the applicants' case, in oral evidence, Mrs Cliff said that the real estate agent who sold them the Property had told them the kitchen was made of essa stone. However, after living there for a few months, dull staining had started appearing. Mrs Cliff said the Builder then arranged for Mr Reg Pinto, the owner of The Stone Doctor, to come over. She said that Mr Pinto had said that the benchtops were not suitable for the kitchen. (Mr Pinto did not attend to give evidence, so this evidence, while admissible in the Tribunal, was untestable). Mrs Cliff also said that Mr Pinto had used a machine that cut back the surface and put on a polish, but that, after a couple of days, big circular brush marks appeared.
By email dated 27 April 2011, Mr Cliff complained to Mr Walpole, inter alia, about the round brush marks that had been left by The Stone Doctor, and asked for some information on their kitchen benchtops, including who the manufacturer was. This email is at page 28 of the booklet.
By letter dated 24 June 2011, which is at pages 14 - 17 of the booklet, Mr Walpole advised the applicants that the kitchen benchtops were, in fact, 'Santa Marghestone MB281 Fiorito Mitr', and attached two information sheets from Ital Marble & Granite. The first information sheet, at page 16 of the booklet, included an explanation that marghestone is produced by Santa Margherita S.p.A and is an industrial product of selected marble chips bound with polyester resin. The second information sheet, at page 17 of the booklet, included an explanation that:
Marghestone offers a unique alternative to traditional natural marble materials. … we can create a multitude of looks not found in natural stone. This unique combination of materials has the feel and performance of natural stone, with an endless array of variations that lend[s] itself to any commercial or residential project.
Mrs Cliff said that Mr Walpole had suggested that they go to see the manufacturer. The Tribunal notes the email from Mr Walpole to Mr Cliff dated 27 April 2011, which is at page 24 of the booklet, in which Mr Walpole provided the contact details of the 'suppliers and installers' of the kitchen benchtops, including '[email protected]'. Mrs Cliff said that when they had visited Mr Mark Casella, the Director of Ital Marble & Granite, he had said his hands were tied and that no maintenance could change the situation. The Tribunal notes the applicants' statement to the Building Commission at page 21 of the booklet.
Mrs Cliff then said that they then had Mr Graeme Smith, a marble and granite specialist, come in to have a look at the kitchen benchtops and that he had said they were not fitforpurpose. (Mr Smith did not attend to give evidence, so this evidence, while admissible in the Tribunal, was untestable). However, the Tribunal notes the letter from G.C. Smith & Co dated 26 August 2011, at page 18 of the booklet, in which Mr Smith wrote of the 'many circular dull marks', 'other dull areas' and also the 'many dull areas on the sink and hotplate tops'. Mr Smith also recommended replacement, as 'no amount of time spent rectifying the faults will improve the finish'. In weighing up this evidence, the Tribunal takes into account that Mr Smith was an importer of granite and marble and could have benefited from replacing the applicants' kitchen benchtops.
Mrs Cliff referred to the photographs in the booklet at pages 73 - 80. The Tribunal also considered the original versions of the photographs, which are on the Tribunals files. Mr Walpole said he had been provided with originals and did not need to see these originals.
Mrs Cliff explained to the Tribunal, by referring to the plan, at page 63 of the booklet, that all surfaces in the kitchen are in the same product; namely, the central kitchen bench and the bench around the sink and hotplates, as well as the splashback.
In the statement to the Building Commission, at page 20 of the booklet, the applicants said that:
Settling in, gradually after a couple of months we started noticing staining on the bench tops, eg: rings left from where a glass had been sitting, I remember making chicken soup one night and a few splashes from that stained quite considerably for chicken soup, basically all foods are somehow leaving a permanent mark on the bench tops.
In answer to a query by the Tribunal, Mrs Cliff said that water did not leave a mark. In response to the BC Report, which is at page 43 of the booklet, the applicants also said that:
… We understand that acidic products will mark this product, however[,] we are finding that soft soap, soup splashes, sauces, etc are also marking it ...
… We are very particular people who own the property and even though we go to great lengths to avoid this problem, the most unlikely substances continue to cause marking, which for us is very disappointing and distressing …
In the BC Report, Inspector Martelli wrote that he had observed some dull staining to the kitchen benchtop 'in various locations'. The inspector also wrote that Santa Margherita, the manufacturer of the kitchen benchtops, 'is a large company based in Verona Italy founded in the mid 20th century' and that it 'produces and exports around 8000sqm of stone surface every day to over 70 countries'. The inspector did not specify how much marghestone this company produces and exports. In oral evidence, the inspector said that he had been unable to reach a conclusion as to the cause of the staining. The inspector also said it was difficult to tell whether a sealer had been applied.
In oral evidence, Inspector Martelli explained that he had found Mr Marizio Bertolli from MB Stone Restoration, to whom he refers in the BC Report, at page 40 of the booklet, on the internet. The inspector wrote that he was an expert in stone restoration and that the inspector had concluded that dull staining to 'marble stone surfaces' are generated by acidic substances.
The inspector wrote that he had spoken to Mr Casella and had been advised that, although more difficult than natural stone, the dull staining to the marghestone could be rectified, and that, although a sealer may have been applied prior to installation, it was not required. The inspector also wrote that he had spoken to Mr Pinto and had been advised that the dull staining was likely to be acidic based, and that the dull staining could be rectified.
Mrs Cliff pointed out that, after The Stone Doctor had polished the kitchen benchtops, the old marks had come back in a couple of days. She also said that Mr Pinto had said the kitchen benchtops would have to be polished every six months, and that he had charged Buildwise Builders $1,600.
Inspector Martelli also said that most builders give a handover pack regarding care and maintenance, and that most stone has a warranty.
Mrs Cliff said that they had not received a warranty of any kind. She said they were given a file, which did contain a care and maintenance pamphlet for the kitchen benchtops, but it was not like the information sheets provided by Ital Granite & Marble. She said that it stated to clean the kitchen benchtops with soapy water. Mr Cliff added that it was a four page pamphlet and it did advise to avoid things like vinegar. The Tribunal notes that this four page pamphlet was not admitted into evidence.
Further, the inspector said that the four page pamphlet was not shown to the inspector on the day of his inspection.
Mrs Cliff said that the particular stone on her kitchen benchtops was porous and that she did not believe it was fitforpurpose.
The inspector wrote in conclusion that:
Although the inspector considers the dull staining to the bench top to be unsatisfactory, the inspector was not party to the contracts, [and] is unable to be conclusive as to what type of cleaning methods have been used on the surface or if any care and maintenance information was provided to the owner prior to the occupancy.
The inspector explained in oral evidence that he considered that the dull staining was unsatisfactory, because it was apparent in natural light. The inspector said that, personally, he would be dissatisfied, although he could not be conclusive as to what caused it.
The inspector said he would have thought a composite would have been more stain resistant. He also said he did not know whether this product was fitforpurpose.
The applicants said that they had nothing further to say, and the Tribunal gave the Builder the opportunity to crossexamine both the applicants and the inspector on their evidence. Under crossexamination, the inspector said he was not able to answer whether the particular stone was fitforpurpose, because he did not know whether the owners had stained it or whether the product was faulty. The inspector also said that the three people he had spoken to all said that the applicants' kitchen benchtops could be rectified, and that they required regular polishing. The inspector acknowledged that other kitchen benchtops do also require maintenance, although granite is stain resistant.
During the Builder's case, Mr Walpole said, on behalf of the Builder, that the Property was established. The Tribunal notes the email to the applicants dated 1 November 2011, at page 23 of the booklet, in which Mr Walpole states, inter alia, that:
You purchased the house as an established home with the Bench tops installed for you to view and have a full assessment of what you were purchasing, …

Mr Walpole said that 'Building Corporation WA Pty Ltd had been trading as Buildwise Builders at the time' and it had had a contract with the Developer. The Tribunal notes the letter to the applicants dated 24 June 2011, at pages 14 and 15 of the booklet, in which Mr Walpole states, inter alia, that:
1. There was no contract between yourself and Building Corporation WA Pty Ltd (Buildwise) (The house was not purchased from us).
2. The building contract was between Breaksea Developments and Building Corporation WA Pty Ltd.
…
Mr Walpole said he was not sure what the real estate agent had said, but when the house was handed over, there had been no damage to the kitchen benchtops. He also said that it was Giorgi Exclusive Homes which had sent The Stone Doctor to polish the applicants' kitchen benchtops, and it was done as a gesture of goodwill.
Mr Walpole said that a care and maintenance pamphlet had been provided to the applicants as well as the additional information from Ital Marble & Granite. In answer to a question asked by the Tribunal, Mr Walpole said that the pamphlet was generally about stone throughout the house and that he could not remember what it said about care and maintenance.
The Tribunal notes that the first information sheet from Ital Marble & Stone, at page 16 of the booklet, stated that:
All products manufactured by ITAL MARBLE & GRANITE are sealed with a silicone impregnating sealer before leaving our factory. ...
The sealer will last approximately 12 years at which time it will need to be resealed. …
All stone tops even though sealed are still prone to staining by foods, liquids, ink and oils if left on the surface for extended periods of time. … To prevent staining, clean the spillage from the top as soon as possible … To prevent staining it is important the stone is resealed with a quality penetrating sealer every 12 years or so.
The Tribunal also notes that the second information sheet from Ital Marble & Stone, at page 17 of the booklet, stated that:
… damage to marble is often irreparable. A good commercial penetrating stone sealer is applied prior to installation to help prevent staining. The sealer should then be applied every year after to maintain an optimum level of stain prevention. Spills of any type should be immediately removed and rinsed with water. MargheStone may stain, etch or dull if exposed to liquids (such as wine, vinegar, tea, lemon juice or soda) or fruits and vegetables for prolonged periods of time. Coasters should be placed under all glasses, particularly those containing liquors or citrus juices. MargheStone marble surfaces can be damaged from prolonged exposure to heat …
Mr Walpole said that 'we' had supplied the home through the Developer and that the product was fitforpurpose. He referred to Inspector Martelli's second paragraph, at page 41 of the booklet, that Santa Margherita produces and exports around 8,000 square metres of stone surfaces every day, and he said that it was a product that has been installed in thousands of homes. He said that if it was not fitforpurpose, there would be a lot of homes that need to have their kitchen benchtops replaced.
Mr Walpole said that some people select a product simply for the way it looks. He said the Builder had used the product before because, at the time, the trend had been for those particular colours, but that the Builder had not used it much since. He said the Builder had received two other complaints about this product, 'put in at least twenty one homes down there'. He said it was known as the South Beach estate.
The Tribunal asked Mr Walpole about the letter from Bernini Stone & Tiles Pty Ltd, undated, at page 82 of the booklet, which Mr Walpole had provided to the Building Commission. Mr Walpole said that Bernini Stone & Tiles Pty Ltd was another supplier and installer of marble based kitchen benchtops. Mr Walpole would say that they have also dealt with this particular composite. In this letter, Mr Noel McGeough stated, inter alia, that:
We confirm that marble and reconstituted marble perform and behave in the same way on a kitchen bench top surface.
The inspector said that 'reconstituted marble' is the same as composite marble.
The Tribunal referred to the paragraph in the letter from Mr McGeough that stated:
Practical use of a marble or reconstituted marble bench top requires regular application of a marble wax to protect the surface from etching or marking from acidic substances such as alcohol or citrus juice.
The Tribunal asked Mr Walpole if the four page pamphlet that had been handed over stated marble wax should be applied regularly. Mr Walpole replied that he did not know.
The Tribunal also asked Mr Walpole about the Developer. Mr Walpole said, inter alia that it had been set up to build seven homes.
Mr Walpole said he had nothing further to say and the Tribunal gave the applicants the opportunity to crossexamine. Under crossexamination, Mrs Cliff asked Mr Walpole how she could bring back the state of the kitchen benchtops. Mr Walpole said to polish and reseal them. Also, Mrs Cliff put to Mr Walpole that she had been into a lot of those 21 homes, and a lot of them do not have marghestone. Mr Walpole said nothing in response.
The Tribunal notes that in the Builder's response to the BC Report, it was stated, at page 81 of the booklet, inter alia that:
Photos. These have been taken with glancing light across the top to try and highlight any issues. We do not consider that these are relevant, as any surface inspected should not be considered with glancing light across it as it does not give a true representation.
Also please see a report from another reputable stone company [Bernini Stone & Tiles Pty Ltd] that the tops are fit for the intended purpose.
The Tribunal also notes that in Mr Walpole's letter dated 24 June 2011, at page 14 and 15 of the booklet, he stated, inter alia, that:
…
3. The tops that formed part of this contract are Santa Marghestone MB281 Fioriti Mitr and are designed and fixed for its intended purposes. Please see attached paperwork from Ital Marble and Granite relating to this.
4. Building Corporation WA Pty Ltd completed and handed the home over to Breaksea Developments on the 11th June 2009 [at] which [time] there was no mention of any damage to the Kitchen bench tops as part of this handover.
…
… we advised that Ital Marble & Granite had supplied and installed the tops and that you could contact them to carry out any maintenance work. If they have recommended someone and you are not happy with the outcome then we suggest you take this matter up with them.
Based on this information and the fact that you purchased the property as an established home and were aware of what tops were in the home at this time [, we] see no reason why we should be replacing the tops as they are fit for the intended purpose.
The Tribunal also notes Mr Walpole's email to the applicants dated 1 November 2011, at page 23 of the booklet.
The application was adjourned at 11.35 am for a brief period while the Tribunal members consulted. The application was then finally adjourned at 11.45 am and a decision reserved.

The Tribunal's findings

The Tribunal accepts the applicants' oral evidence and supporting material in its entirety, including the letter from Mr Smith, although the Tribunal attributes no weight to Mrs Cliff's oral evidence that Mr Smith, and also Mr Pinto, had expressed the opinion to her that the product used for the applicants' kitchen benchtops was not fitforpurpose, as the Tribunal was unable to test this and the basis of these opinions. None of the evidence or material provided by the Builder related to the current condition of the applicants' kitchen benchtops. The Tribunal finds that the applicants' kitchen benchtops are quite extensively damaged and are now in a poor condition, in that dull stains and marks are visible in natural light at various locations. The Tribunal finds that the immediate cause of all, or substantially all, of the damage to the applicants' kitchen benchtops was the use of the kitchen benchtops by the applicants for cooking, eating and drinking.
The Tribunal finds that the Builder did not provide the Developer with any form of specific information about the care and maintenance required of the particular product used for the kitchen benchtops; namely, Marghestone MB281 Fiorito Mitr, which could then be passed on by the Developer, or the Developer's agent, to the purchaser of the Property, and that it was not until 24 June 2011 that any specific information was provided by the Builder, at which point the applicants had been in possession of the Property for approximately 12 months. The Tribunal finds that it was inherently likely that the Developer would have included such specific information in the file provided to the applicants at handover of the Property if the Builder had provided it. The Tribunal finds that this omission by the Builder created a risk that the purchaser of the Property may not exercise the degree of care said to be required with the particular type of kitchen benchtop and, as such, this omission also caused all, or substantially all, of the damage to the applicants' kitchen benchtops, which occurred prior to 24 June 2011. The Tribunal finds that the cooking and use of the kitchen benchtops by the applicants without particular care up until 24 June 2011, including, for example, by putting down glasses without coasters, 'was[,] in the ordinary course of things[,] the very kind of thing likely to happen' as a result of the Builder's omission and, therefore, did not sever the causal connection between the Builder's omission and the damage resulting (March and E. & M. H. Stramare Pty Limited (1991) 171 CLR 506; (1991) 99 ALR 423, 431 (Mason CJ); noting Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 239 CLR 420; (2009) 260 ALR 628 at [44] (French CJ, Gummow, Hayne, Heydon and Crennan JJ); see also generally Mahony and J. Kruschich (Demolitions) Proprietary Limited (1985) 156 CLR 522; (1985) 59 ALR 722). Accordingly, the Tribunal finds that the regulated building service was not carried out in a proper or proficient manner within the meaning of s 38(1)(a) of the Act, in that the Builder did not make available special care instructions required in respect to part of the dwelling constructed.
The Tribunal also finds that Marghestone MB281 Fiorito Mitr is a product that is not suitable for use as kitchen benchtops. The Tribunal finds that particularly careful cooking and use of the kitchen benchtops has resulted in damage to the applicants' kitchen benchtops. Although the photographic evidence provided by the applicants was limited, the Tribunal found the applicants to be honest people, their details, submissions and evidence consistent and, in fact, their case also consistent with parts of the evidence provided by the Builder through Ital Granite & Marble; namely, that that marghestone is still prone to staining by nonacidic foods and liquids, such as tea, soda and vegetables, as well as 'liquids' and oils, and that coasters need to be put under all glasses. The Tribunal finds that the manufacturer of the applicants' kitchen benchtops is Santa Margherita, a large company based in Verona Italy, and that the Builder has not provided any evidence from the manufacturer that this particular composite was intended to be used as kitchen benchtops. The Tribunal notes the Builder's expert evidence from Mr McGeough, by letter undated, that marble has always been a popular choice of surface finish on kitchen benchtops, and that marble and reconstituted marble perform and behave in the same way on a kitchen benchtop. However, Mr McGeough was not called, and so this evidence could not be tested. Further, these points are not conclusive as to whether the particular composite Marghestone MB281 Fiorito Mitr was suitable for use as kitchen benchtops, and the weight of evidence in this application supports a contrary conclusion.
The Tribunal declines to make any finding as to whether the applicants' kitchen benchtops had been sealed or waxed prior to or upon installation, whether they needed to be, or whether they needed to be periodically resealed or rewaxed, as the evidence on this issue was inconclusive. However, if the kitchen benchtops were not sealed or waxed prior to or upon installation and they needed to be, the Tribunal considers that this is a further basis upon which the regulated building services is faulty and unsatisfactory within the meaning of s 38(1)(a) of the Act. If the applicants' kitchen benchtops were sealed or waxed prior to or upon installation, then the actual performance of the applicants' kitchen benchtops, even when sealed or waxed, is a further indication that the product was not suitable for use as kitchen benchtops.
The Tribunal finds that the applicants' kitchen benchtops cannot now be repaired. None of the people expressing an opinion regarding possible repair of the applicants' kitchen benchtops had seen the particular benchtops except The Stone Doctor, who had further damaged it in his attempts to repair the surface.
The Tribunal has placed no weight on the inspector's evidence, to the extent it was an expression of personal preference.
Accordingly, the Tribunal finds that the regulated building service was faulty and unsatisfactory within the meaning of s 38(1)(a) of the Act, in that the Builder used a product in the construction of a dwelling that was not suitable for its intended purpose.
The Tribunal also finds that, on either basis (that is, either that the regulated building service was not carried out in a proper or proficient manner or that the product used was not suitable for its intended purpose), and, of course, on both bases, the appropriate remedy is for the Builder to remove the applicants' current kitchen benchtops, including the splashback, and to replace them with essa stone or a similar product of a similar cost, as is preferred by the applicants and in a colour selected by the applicants.

Order

The Tribunal orders the following:
The respondent must, within 30 days from the date of this order, remove the applicants' current kitchen benchtops and splashback at 48 Breaksea Drive, North Coogee and replace them with essa stone or any other similar type of product of a similar cost as is preferred by the applicants in a colour selected by the applicants.

I certify that this and the preceding [72] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS A DAVIES, SENIOR SESSIONAL MEMBER