DENNISS and Q & N PREMIUM STONES PTY LTD
[2019] WASAT 142
•31 DECEMBER 2019
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION: DENNISS and Q & N PREMIUM STONES PTY LTD [2019] WASAT 142
MEMBER: MS P LE MIERE, MEMBER
MR C MARSH, SESSIONAL MEMBER
HEARD: 29 NOVEMBER 2019
DELIVERED : 31 DECEMBER 2019
FILE NO/S: CC 826 of 2019
CC 1437 of 2019
BETWEEN: BARRY JAMES DENNISS
First Applicant
ALINE STEPAN
Second Applicant
AND
Q & N PREMIUM STONES PTY LTD
Respondent
Catchwords:
Building remedy order - Meaning of - Compensation order to be made when remedial work no longer able to be carried out - Turns on own facts
Legislation:
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 11(1)(c), s 36, s 36(1)(b), s 36(1)(c), s 37, s 49, s 51, s 51(2), s 51(2)(a), s 51(2)(b)
State Administrative Tribunal Act 2004 (WA), s 87, s 87(1), s 88(2)
Result:
Application allowed
Category: B
Representation:
Counsel:
| First Applicant | : | In Person |
| Second Applicant | : | In Person |
| Respondent | : | Mr Thillagaratnam and Mr Hoang (acting as agents) |
Solicitors:
| First Applicant | : | N/A |
| Second Applicant | : | N/A |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The application was heard on 29 November 2019. An oral decision was delivered and an order made pursuant to s 36(1)(c) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (the BSCRA Act) that Q & N Premium Stones Pty Ltd (respondent) pay $5,090 together with expert costs in the amount of $2,964 to Mr Barry Denniss and Ms Aline Stepan (applicants).
The following reasons for decision have been prepared from the transcript and have been subjected to only minor editing to improve clarity of expression and set out.
The complaint
The applicants lodged a complaint against the respondent with the Building Commissioner alleging a regulated building service carried out at their home in Morley (property) was not carried out in a proper and proficient manner or was faulty or unsatisfactory.
On 15 August 2018 an authorised delegate of the Building Commissioner made Building Remedy Order No 206 of 2018 (BRO) pursuant to the provisions of s 11(1)(c) and s 37 of the BSCRA Act.
A complaint was subsequently lodged by the applicants with the Building Commissioner that the respondent had not complied with the BRO.
The Building Commissioner referred the non‑compliance with the BRO to the Tribunal and on about 25 June 2019 the matter was accepted by the Tribunal. A further complaint was lodged by the applicants with the Building Commissioner on or about 23 August 2019 making further allegations that the regulated building service carried out at the property was not carried out in a proper and proficient manner or was faulty or unsatisfactory.
Only one item of complaint was accepted by the Building Commissioner and referred to the Tribunal for determination and that was in relation to the cost of reports from experts.
On 24 September 2019 a directions hearing was held in respect of the complaint of non‑compliance with the BRO, proceeding CC 826 of 2019 and the new complaint which became proceeding CC 1437 of 2019.
The Tribunal ordered that proceedings CC 1437 of 2019 and CC 826 of 2019 were to remain separate proceedings but were to be heard and determined together and evidence in one proceeding is to be evidence in the other proceeding. Further programming orders to prepare the matters for hearing were also made at that time.
The BRO is in respect of 19 items of complaint. Complaint items 3, 8(a) and 13 were dismissed by the Building Commissioner. Complaint items 18 and 19 are shown as withdrawn. It was not disputed that complaint items 10, 11 and 16 have been complied with and require no further remedial work.
The applicants seek an order pursuant to s 51 of the BSCRA Act to convert the BRO to a monetary order in respect of the items of complaint remaining that require remedial work to be carried out.
Legislation
Section 51 of the BSCRA Act grants discretion to the Tribunal to revoke a building remedy order and to make a building remedy order pursuant to s 36(1)(b) or (c) of the BSCRA Act.
Section 36 of the BSCRA Act reads as follows:
(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.
The hearing
Before the Tribunal was:
•Exhibit 1, a hearing book that contained various expert reports on the scope of works required for the necessary remedial works and the costs thereof;
•Exhibit 2 was the BRO;
•Exhibit 3 the Notice of Proposed Complaint dated 7 September 2017;
•Exhibit 4 Building Complaint Form dated 23 August 2019.
Mr Andrew Abbott a flooring expert engaged by the applicants and Mr Paul Kiely a flooring expert engaged by the respondent gave evidence concurrently at the hearing.
Mr Simon Dolby a registered builder engaged by the applicants to provide evidence in respect of the costs of the remedial work and Mr Thuan Nguyen a registered painter engaged by the respondent to provide evidence in respect of costs also gave evidence concurrently at the hearing (by telephone).
Mr Denniss principally conducted the proceedings for the applicants.
Mr Thillagaratnam the company secretary of the respondent with the assistance of Mr Hoang an employee of the company conducted the proceedings for the respondent.
The Tribunal acknowledge the presentation of the applicants' case in such an orderly and helpful manner minimised the time of the hearing. Mr Denniss was readily able to refer the Tribunal to all relevant documents including at times assisting the respondent in locating its documents. His assistance to the Tribunal is appreciated and ensured the hearing ran smoothly and efficiently.
The issues
The issues to be determined by the Tribunal are:
•What was the remedial work the respondent was required to perform pursuant to the BRO?
•Has the respondent completed the remedial work required and complied with the BRO?
•If the respondent has not complied with the BRO should the Tribunal exercise its discretion under s 51 of the BSCRA Act and revoke the BRO and make a building remedy order pursuant to s 36(1)(b) or (c)?
•If the Tribunal determines it should revoke the BRO and make a building remedy order, what is an appropriate order?
Evidence
Item 1 ‑ living room ‑ one board is of matt finish and not gloss like the rest of the house
The BRO required:
Respondent to provide floorboards in accordance with the contractual agreement, which are equal in colour, texture and opacity, and the level of sheen equal across the entire floor.
Responded to carry out the remedial work in a proper and proficient manner.
The experts' reports said that the remedial work in respect of complaint item 1 had been undertaken and completed.
The applicants submitted that it has not been completed with as the flooring over the entire floor throughout the living areas of the house are not equal in colour.
Item 2 ‑ floor level in kitchen and living room areas
Item 2(a)
The BRO required:
Respondent to install the flooring in accordance with the manufacturers recommendations in a proper and proficient manner ensuring that any part of the floor that exceeds the +/-3 mm per thousand millimetre tolerance is remedied.
At hearing it was not disputed that the applicants had refused to let the respondent complete the work in the kitchen where a small area still needed to be completed.
In their oral evidence the experts agreed that whilst some of the remedial work had not been completed in respect of complaint item 2(a) they considered the work that had been done was in accordance with the BRO and they were of the opinion that if the respondent had been allowed to complete the work it would have resulted in the floor being within tolerance of +/-3 millimetres.
Item 2(b)(i)(ii)
The BRO required:
Respondent to make good the flooring so that it is free from movement under foot and the trim surrounding the perimeter of the flooring conceals the ends of the material. Respondent is to ensure that the installation of the flooring and the trim is fixed firm so that it represents a proper and proficient finish.
In Mr Abbott's report he says the BRO has not been complied with. At hearing both experts agreed the work had not been completed and discussed what work needed to be done to comply with the BRO.
The respondent included two quotes in Exhibit 1 at pages 505 and 506 in relation to all outstanding remedial work generally. In the Tribunal's view the quote is not sufficiently itemised to enable the Tribunal to understand what aspects of the quote referred to specific complaint items or how the costs were calculated.
The respondent asked questions of the experts but did not challenge the experts' views as to the remedial work necessary.
Initially the experts said they could not offer an opinion on the likely costs of the necessary remedial work but were later asked by the respondent to provide costings and they did so.
There was one aspect of the work they were unable to cost and that was the bespoke trim that would be needed. The Tribunal therefore had no evidence as to this cost.
They both agreed that what was required to complete the remedial work was:
•5 packs of wood at $70/pack = $350
•4 hours labour to install at $80/hr = $320
•100 linear metre of scotia board to supply and install $7/m = $700
•supply and install trim of $680
•being a total cost of $2,050
In respect of the quantity of scotia board required and where it is needed to be installed the respondent agreed that although the reference in this complaint item was to the kitchen and living rooms only it agreed that scotia board would need to be reinstalled throughout the living areas. The respondent further agreed that as it had removed the scotia board it would pay for it. The cost referred to above therefore includes the cost of replacing and installing scotia board throughout the living areas of the property.
Item 4 ‑ paint and plaster damage
The BRO required:
Respondent to remove the over spread of adhesive from the flooring, scotia and adjoining surfaces, and make good any damage to the walls associated with the installation of the flooring in a proper and proficient manner.
Remedial work includes all areas that have flooring and scotia installed.
Mr Abbott's report states the remedial work has not been completed and this was confirmed in both experts' oral evidence.
It was not disputed by the respondent that complaint items 4, 5 and 14 had not been complied with.
The costings in respect of complaint items 5 and 14 are included in the costings for complaint item 4.
The evidence in respect of costings provided by the applicants is Exhibit 1 at pages 167, 169 and 170. The evidence by the respondent is Exhibit 1 at page 505.
An issue in relation to the costings provided was raised as to whether it would be possible to simply patch the paintwork or if all of the affected walls would need to be repainted because of the inability of being able to match paint that was now three years old.
Mr Dolby and Mr Nguyen gave evidence concurrently in regards to the quotes they had given and costings in respect of the cost of paintwork generally.
Mr Nguyen's evidence was difficult to understand as he appeared to agree with what was put to him and then give conflicting evidence. The issue the Tribunal perceived did not appear to be one caused by the difficulty of understanding someone over the telephone but rather a lack of understanding as to what is required of an expert witness in the Tribunal.
Mr Nguyen gave evidence that only three or four walls required any remedial work. Mr Dolby, Mr Abbott and Mr Kiely all gave evidence that effectively every wall in the living area required some degree of remedial work but some more than others.
Mr Dolby said that it might be possible to patch paint rather than repaint all of the walls but you would not be able to know if you would see the patching unless you tried it. He said the least likely scenario was that the paint would be able to be matched.
Mr Nguyen agreed that it was possible that any patching was likely to be visible and or noticeable. His view was however that only two walls needed patching other than around the area where the scotia board had been removed and therefore you could just paint the bottom area of the wall and this would take about five hours.
Mr Dolby did not disagree that if you were only painting about one foot (30 centimetres) from the bottom of the wall in all the areas it would take only five hours.
Mr Nguyen said that a 10 litre tin of paint would cost $120. Mr Dolby did not know what the cost of a 10 litre tin of paint would be. Both Mr Nguyen and Mr Dolby thought to paint all of the walls in the living areas both upstairs and downstairs it would take between 25 and 30 litres of paint. Mr Nguyen did not disagree that it would take three or four days at eight hours per day to paint the living areas both upstairs and downstairs. The cost to paint all the walls of the living areas is therefore:
•Labour three to four days at $50/hr is $1,200 to $1,600
•Paint is 30 litre or 3 x 10 litre tins at $120 = $360
•Being a total of $1,560 to $1,960
Item 5 - bottom of sliding door frames scratched during reinstallation
The remedial work required was:
Respondent to remedy the marks on the powder coated aluminium sills on both the sliding doors in the family room in a proper and proficient manner. Respondent is to ensure that the remedial work is equal in colour, texture and opacity to the existing surface on the doors.
Mr Kiely and Mr Abbott gave evidence that the BRO had not been complied with.
The evidence in respect of the remedial work necessary and the cost thereof for this item is included in complaint item 4.
Item 6 – mark on step from installer
The remedial work required was:
Respondent to make good the stairs so that the materials are free from marks associated with the installation.
Mr Kiely and Mr Abbott gave evidence that the BRO had not been complied with.
The evidence in respect of the remedial work necessary and the cost thereof for this item is included in complaint item 12.
Item 7 – top level is out of square - the top step is not straight
The remedial work required by the BRO was:
7(a) Respondent to remedy the floor in the upstairs living area so that it is free from gaps and the installation of the flooring and scotia is installed in a proper and proficient manner.
Respondent is to ensure the installation meets the requirements of the manufactures recommendations.
7(b) Respondent to remedy the gap under the tread of the top step in a proper and proficient manner.
Respondent to ensure all remedial work is in keeping with the colour and texture of the surrounding material.
Mr Abbott and Mr Kiely both agreed in their evidence that the BRO had not been complied with.
The question arose as to what was required by the BRO given the complaint mentioned that the top level was out of square. When the actual wording of the BRO was brought to the attention of the experts they were of the opinion that it did not require any remedial work to ensure the top stair was straight.
The experts’ opinion was that the only work required to comply with the BRO was for the respondent to ensure there are no gaps. The experts thought that three boards might be needed to be replaced or added into the gaps. One pack of five boards would need to be purchased at a cost of $70 and labour of one hour at $80 thus a total cost of $150.
Item 8 (a) and (b) ‑ front of step damaged- smeared with glue and cracked
Item 8(a) was dismissed
Item 8 (b)
The remedial work required by the BRO was:
Respondent to remove the overspread of filler and adhesive from the flooring and stairs in a proper and proficient manner, ensuring the remedial work does not affect the coating on the materials.
Mr Abbott and Mr Kiely’s evidence was that the BRO has only been partially complied with and further remedial work was required.
They agreed the remedial work necessary was for a small area to be rubbed back and a suitable coating applied; the costs of which they estimated to be materials of $100 and half an hour of labour that is $40, a total of $140.
Item 9 ‑ brown glue smears and splotches throughout the house
The remedial work required by BRO was:
Respondent to remove the overspread of filler and adhesive from the flooring and stairs in a proper and proficient manner, ensuring the remedial work does not affect the coating on the materials.
Mr Abbott and Mr Kiely’s evidence was that the BRO in respect of complaint item 9 has only been partially complied with and further remedial work was required.
Mr Abbott and Mr Keely estimated that it would take a flooring contractor approximately three hours to complete the work and that it could be done without damaging the coating on the flooring; that is three hours at $80 an hour being a total of $240.
Item 12 ‑ blistering to edge of stairs
The remedial work required by the BRO was:
Respondent to remedy the coating on the stairs so that the finish is free from defects associated with blistering or the premature deterioration of the coating system in a proper and proficient manner.
Mr Kiely and Mr Abbott’s evidence was that the works required by the BRO in respect of complaint item 12 have not been complied with. They considered the remedial work required was to sand back the stairs and apply a new coating to the stairs. As the requirements in the Australian Standards had changed since the installation of the flooring such that now the stairs required a coating with a standard slip rating of R10 that was what would need to be applied.
The experts estimated that the materials would cost $200 and labour of one day that is 8 x $80 = $640. As all the stairs would need to be sanded back and re-coated to ensure a consistency of colour any work required for complaint item 6 would necessarily be completed when the stairs were sanded back.
Item 14 ‑ nail through scotia and through sliding door upstairs
The remedial work required by the BRO was:
Respondent to ensure the sliding door is fully operational and the track is not hindered by fixings that pose a safety risk when cleaning the track in a proper and proficient manner.
Respondent to ensure that the scotia adjacent to the sliding door is fixed firmly in position in a proper and proficient manner.
Mr Kiely and Mr Abbott’s evidence was that the BRO in respect of complaint item 14 had not been complied with.
The evidence as to the remedial necessary and the cost thereof for this item is included in complaint item 4.
Item 15 ‑ boards split and dented during fixing work
The remedial work required by the BRO was:
Respondent to carry out all remedial work in a proper and proficient manner.
Mr Abbott and Mr Kiely both agreed that the BRO had been only partially complied with and further remedial work was required.
The experts agreed that two boards needed to be replaced and that a pack of boards at $70 a pack would be need to be purchased in order to do the work (including matching the colouring of boards).
The respondent submitted that a further pack of boards would not need to be purchased as there are three packs of boards on site.
However the Tribunal heard from the experts how it will be necessary to pick out boards that match the flooring that is installed as all boards of a different batch are all slightly different in tone.
The experts estimated that the time to replace the boards would be about three hours at $80 per hour.
Item 17 - step edges
The remedial work required by the BRO was:
Respondent to carry out remedial work in a proper and proficient manner.
Mr Abbott and Mr Kiely both agreed that the BRO had not been complied with.
However as the stairs were to be sanded down and re-coated when the remedial work necessary for complaint item 12 was undertaken that is the sanding down and re‑coating of the stairs, no additional remedial work would be necessary and no additional cost incurred.
Applicants' submission
The applicants seek an order for the costs of the removal and replacement of the entire floor including the preparation of the substrata as the entire floor was faulty.
The applicants submitted that to comply with the BRO the respondent must install the flooring in accordance with the manufacturer's recommendations (complaint item 2(a)). To comply with the manufacturer's recommendations the respondent needs to ensure the substrata of the floor in all areas was level prior to the installation of any flooring. To ensure the substrata is level the entire flooring needs to be removed to allow for the levelling of the substrata.
The applicants further submit that the repairs that had been done have resulted in tonal differences in some areas of the floor and the only way that these tonal differences could be remedied is to replace the entire floor.
Respondent's submissions
The respondent attempted to again relitigate the issue of the standing of the BRO. An interim application to review the BRO was dismissed by the Tribunal on 18 November 2019 and the Tribunal declined to hear from the respondent on this point further.
The respondent submitted that as the flooring the subject of the BRO has now been removed and it is no longer possible to carry out the remedial work referred to in the BRO. Therefore the Tribunal cannot now make an order pursuant to s 51(2) of the BSCRA Act.
Consideration and conclusion
The applicants submitted that the repairs that had been done have resulted in tonal differences in areas of the floor throughout the living areas of the property.
The applicants submitted that the remedial work required in complaint item 1 meant the flooring across the entire house had to be 'equal in colour, texture and opacity'.
The Tribunal does not accept this proposition as the remedy has necessarily to relate to a specific complaint and the specific complaint in this instance is one board in the living room. The Tribunal accepts the evidence of the experts that complaint item 1 has been complied with.
The applicants also submitted the Tribunal should take into account the substrata. There were reports in the hearing bundle in relation to this issue.
The applicants submitted that to comply with the BRO the respondent needed to ensure the substrata of the floor in the kitchen and living room was level as this was the manufacturer's recommendation.
The Tribunal does not accept this interpretation of the BRO. The Tribunal considers the condition of the substrata not relevant. There is nothing in the Tribunal's view in any of the complaint items that would suggest that the making of the BRO was intended to address anything other than the ultimate level of the floor.
The Tribunal does not consider that a mere reference to compliance with the manufacturer's recommendations could mean the BRO was intended to address an issue that was not specifically part of a complaint item when potentially it would require extensive work and not something that originally may have been part of the respondent's agreed works.
The Tribunal rejects the respondent's submission that it cannot make an order pursuant to s 51 because it is no longer possible to undertake any remedial work. Section 51(2)(b) specifically countenances the Tribunal making orders under s 36(1)(b) or s 36(1)(c) ‑ that is an order for the costs of the remedial work or a sum of money to compensate an aggrieved person for the failure to carry out the building service in a proper and proficient manner.
The Tribunal acknowledges that a factor in the Tribunal's consideration as to whether to exercise its discretion under s 51(2)(a) or (b) is whether the remedial work can be carried out, and if it cannot, why it cannot.
There was no evidence presented to the Tribunal that the flooring needed to be removed for safety reasons or health reasons. It appears it was done in the belief by the applicants that the substrata needed to be investigated and the only way to do that was to remove the flooring. It would also seem that the applicants' misunderstanding as to the meaning of the BRO may have played a part in their decision to remove the flooring.
The Tribunal does not accept the interpretation/submission by the applicants that the BRO means that the whole flooring needs to be replaced.
The applicants' removal of the flooring does not affect the fact that the respondent was found by the Building Commissioner to have not carried out a regulated building service in a proper and proficient manner or was faulty or unsatisfactory.
The Tribunal has heard from flooring experts what would have been needed to correct the work that was done by the respondent.
The Tribunal accepts the costings provided by Mr Kiely and Mr Abbott. The Tribunal regarded these experts as attempting to genuinely assist the Tribunal. The Tribunal finds they gave their evidence in a fair and impartial manner. The Tribunal accepts their evidence as to what it would reasonably cost the applicants to have the necessary work completed.
The Tribunal can therefore quantify what that cost would have been to carry out the necessary remedial work.
The Tribunal is persuaded that to achieve the resolution of this matter fairly and according to the substantial merits of the case it should make an order to compensate the applicants for any failure of the respondent to carry out the building service in a proper and proficient manner or that was faulty or unsatisfactory.
Item 1
The Tribunal is satisfied that in respect of complaint item 1 the BRO had been complied with and declines to revoke the BRO in respect of this item of complaint.
Item 2(a)
The Tribunal is satisfied that in respect of complaint item 2(a) the BRO had been complied with.
Item 2(b)
The Tribunal is satisfied that in respect of complaint item 2(b) the remedial works required by the BRO had not been completed and it should exercise its discretion and revoke the BRO and make an order that the respondent pay a sum of money to the applicants as compensation for the failure to comply.
The Tribunal is satisfied that a reasonable cost of the necessary remedial work is $2,050 for the reasons set out earlier.
Item 4 ‑ painting and plaster
The Tribunal accepts the evidence of Mr Abbott and Mr Kiely in relation to the remedial work necessary and the costs thereof.
Where the evidence of Mr Nguyen differs to that of Mr Dolby the Tribunal prefers the evidence of Mr Dolby. Mr Nguyen did not appear to the Tribunal to have a real understanding of what was required by the BRO and sought to minimise any defects in the workmanship of the respondent.
Mr Abbott and Mr Kiely agreed with Mr Dolby that all walls in the living area where the floor had been laid require remedial work that included being repainted either to cover each area where filling is required or all of the walls affected.
The purpose of remedial work where a regulated building service has not been carried out in a proper and proficient manner or is faulty and unsatisfactory is to put the party in the position they would have been had the work been carried out correctly the first time.
The Tribunal is persuaded that the only way of carrying out the necessary remedial work is to paint the whole of the walls affected. It further finds that all the walls in the living areas of the house both upstairs and downstairs require to be repaired and repainted.
The Tribunal is persuaded it should allow the cost of 30 litres of paint rather than 25 given there would be little difference in price if you had to buy a 10 litre tin and then smaller tins to make up the possible five litres of paint.
The Tribunal is further persuaded it should allow for three days to do the painting and other small jobs required by complaint items 5 and 14 because Mr Dolby when estimating three to four days said he was being generous to allow for any problems but that he expected it could be completed more quickly than that.
The Tribunal is satisfied that in respect of complaint items 4, 5 and 14 the works required by the BRO had not been complied with and it should exercise its discretion and revoke the BRO and make an order that the respondent pay a sum of money to the applicants as compensation for the failure to comply.
The Tribunal is further satisfied that a reasonable cost of the necessary remedial work in respect of complaint items 4, 5 and 14 is $1,560 and that a compensation order should be made in favour of the applicants for that amount.
Item 5 ‑ bottom of sliding door frames scratched during reinstallation
The Tribunal accepts that evidence of Mr Abbott and Mr Kiely that in respect of complaint item 5 the works required by the BRO have not been fully complied with. The Tribunal is satisfied that in respect of complaint item 5 the works required by the BRO have not been fully complied with but it should exercise its discretion and revoke the BRO
The Tribunal declines to make a separate compensation order in respect of complaint item 5 as the cost of the work in relation to this complaint item is included in the compensation order in respect of complaint item 4.
Item 6 ‑ mark on step from installer
The Tribunal accepts that evidence of Mr Abbott and Mr Kiely that in respect of complaint item 6 the works required by the BRO have not been complied with.
The Tribunal is satisfied it should exercise its discretion and revoke the BRO.
The Tribunal declines to make a separate compensation order in respect of complaint item 6 as the cost of the work in relation to this complaint item is included in the compensation order in respect of complaint item 12.
Item 7 ‑ top level is out of square ‑ the top step is not straight
The Tribunal is satisfied that the only work required to comply with the BRO is for the respondent to ensure there are no gaps.
The Tribunal accepts the evidence of Mr Abbott and Mr Kiely that in respect of complaint item 7 the works required by the BRO have not been complied with. The experts thought that three boards might be needed to be replaced or added into the gaps.
The Tribunal is satisfied it should exercise its discretion and revoke the BRO in respect of complaint item 7 and make an order that the respondent pay a sum of money to the applicants as compensation for the failure to comply.
The Tribunal is further satisfied that a reasonable cost of the necessary remedial work is $150 and that a compensation order should be made in favour of the applicants for $150.
Item 8 ‑ front of step damaged ‑ smeared with glue and cracked
The Tribunal accepts Mr Abbott and Mr Kiely evidence that the BRO in respect of item 8 has only been partially complied with and further remedial work is required.
They agreed the remedial work necessary was for a small area to be rubbed back and a suitable coating applied.
The Tribunal is satisfied that it should exercise its discretion and revoke the BRO in respect of item 8 and make an order that the respondents pay a sum of money to the applicants as compensation for the failure to comply.
The Tribunal is further satisfied that a reasonable cost of the necessary remedial work is $140 and that a compensation should be made in favour of the applicants in the sum of $140.
Item 9 ‑ brown glue smears and splotches throughout the house
The Tribunal accepts Mr Abbott and Mr Kiely evidence that the BRO in respect of item 9 has only been partially complied with and further remedial work is required.
The Tribunal is satisfied it should exercise its discretion and revoke the BRO and make an order that the respondents pay a sum of money to the applicants as compensation for the failure to comply.
The Tribunal is further satisfied that a reasonable cost of the necessary remedial work is $240.
Item 12 ‑ blistering to edge of stairs
The Tribunal accepts Mr Abbott and Mr Kiely’s evidence that the BRO in respect of complaint item 12 has not been complied with.
They considered the remedial work required was to sand back the stairs and apply a new coating to the stairs that complied with current Australian Standards that is a coating which has a standard slip rating of R10. The Tribunal accepts Mr Abbott and Mr Kiely’s evidence as to the necessary remedial works.
The Tribunal is satisfied that in respect of complaint item 12 it should exercise its discretion and revoke the BRO and make an order that the respondents pay a sum of money to the applicants as compensation for the failure to comply.
The Tribunal is further satisfied that a reasonable cost of the necessary remedial work in respect of complaint items 12 and 6 is $640 and that a compensation should be made in favour of the applicants in the sum of $640.
Item 14 ‑ nail trough scotia and through sliding door
The Tribunal accepts Mr Abbott and Mr Kiely evidence that the BRO in respect of complaint item 14 has not been complied with and it should exercise its discretion and revoke the BRO.
The Tribunal declines to make a separate compensation order in respect of complaint item 14 as the cost of the work in relation to this complaint item is included in the compensation order in respect of complaint item 4.
Item 15 ‑ boards split and dented during fixing work
The Tribunal accepts Mr Abbott and Mr Kiely evidence that the BRO in respect of complaint item 15 has only been only partially complied with and further remedial work is required.
The Tribunal is satisfied that in respect of complaint item 15 it should exercise its discretion and revoke the BRO and make an order that the respondents pay a sum of money to the applicants as compensation for the failure to comply.
The Tribunal heard from the experts how it will be necessary to pick out boards that match the flooring that is installed as all boards of a different batch are all slightly different in tone. The Tribunal has also taken into account that it has allowed for a full pack of boards (a pack of boards contains five boards) for the remedial work necessary for complaint item 7 when only three boards will be required.
The Tribunal is satisfied it should allow a full new pack of boards to allow for selection of the right tone and colour.
The Tribunal is further satisfied that a reasonable cost of the necessary remedial work is $310 and that a compensation should be made in favour of the applicants in the sum of $310.
Item 17 – step edges
The Tribunal accepts Mr Abbott and Mr Kiely evidence that the BRO in respect of item 17 has not been complied with.
The Tribunal is satisfied that in respect of complaint item 17 it should exercise its discretion and revoke the BRO.
As the stairs are to be sanded down and re-coated when the remedial work necessary for complaint item 12 is undertaken that is the sanding down and re‑coating of the stairs, no additional cost will be incurred.
The Tribunal declines to make a separate compensation order in respect of complaint item 17 as the cost of the work in relation to this complaint item is included in the compensation order in respect of complaint item 12.
Costs
The applicants seek payment of the expert report fees and attendance fee for their expert Mr Abbott at hearing together with the filing fees of their building complaint forms.
The starting point in any analysis of the circumstances in which the Tribunal will make an order for costs is s 87(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), which creates the presumption of a 'no costs jurisdiction'. There is however provision in s 87 and s 88(2) of the SAT Act for the Tribunal to award costs.
Section 49 of the BSCRA Act effectively removes the starting position that there should be no award of costs provided by s 87 of the SAT Act. However the provision should not be understood as providing that costs will generally follow the result.
Section 49 of the BSCRA Act is neutral in effect, and should be applied in the manner which is consistent with and reinforces the objectives and procedures of the Tribunal, and any factors will be relevant which point to the justice of the case requiring an award of costs.
The underlying consideration for the Tribunal when determining an application for a costs order will be whether the justice of the case supports moving away from the initial position that each party should bear its own costs.
The respondent did not make any submissions in relation to the applicants' claim for costs. As the respondent was not legally represented the Tribunal does not assume this means it does not oppose such an order.
The Tribunal is satisfied that the objectives of the Tribunal would be advanced and the justice of the case supports an order for the costs of the experts the Tribunal relied upon in coming to its decision.
The Tribunal does not seek to criticise the applicants however an application could have been made for the cost of the expert fees in the one application and so will allow only one filing fee.
Orders
1.Pursuant to s 51(2)(a) Building Remedy Order No 206 of 2018 dated 15 August 2018 is revoked in respect of complaint items 2(b)(i)(ii), 4, 7(b), 8(b), 9, 12, 15 and 17.
2.Pursuant to s 36(1)(c) the respondent is to pay the applicant the sum of $5,090.
3.The respondent is to pay the applicants' expert report costs and attendance at the hearing fees of $2,964.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS P LE MIERE, MEMBER
31 DECEMBER 2019
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