EAST and EMERSON - [2022] WASAT 105

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   EAST and EMERSON [2022] WASAT 105
MEMBER:   MS KY LOH, MEMBER
MR R WOODFORDE, SESSIONAL MEMBER

HEARD:   1 SEPTEMBER 2022
DELIVERED          :   25 NOVEMBER 2022
FILE NO/S:   CC 148 of 2022
BETWEEN:   STEPHEN EAST
Applicant
AND
TRISTAN EMERSON
Respondent

Catchwords:

Building services complaint - Pressure sealing and cleaning works on pavers - Whether works are regulated building service

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(1), s 36(1), s 36(1)(a), s 36(1)(b), s 36(1)(c), s 38(1)(a), s 38(1)(b)
Building Services (Complaint Resolution and Administration) Regulations 2011 (WA), reg (4)(1)(b), reg 4(2),
Building Services (Registration) Act 2011 (WA), s 3
Home Building Contracts Act 1991 (WA), s 3(1)
Home Building Contracts Regulations 1992 (WA), reg 2A

Result:

Application allowed in part

Category: B

Representation:

Counsel:

Applicant	:	In person
Respondent	:	In Person

Solicitors:

Applicant	:	N/A
Respondent	:	N/A

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Mr Stephen East, the owner, is unhappy with the quality of the works by Mr Emerson, the contractor, who was engaged to clean and seal the brick pavers in his property.
The parties agree that the original pave-set caused stains on the pavers, but disagree about the effectiveness of the contractor's remedial action.
On the one hand, the owner says that the contractor's actions have affected paintwork on his property, caused stains on his pavers, and locked sand into his pavers.
On the other hand, the contractor says that he removed most stains on the pavers, but further cleaning and sealing work was due to the owner's ongoing dissatisfaction.
We do not accept the contractor's challenge to the Tribunal's jurisdiction, and find that we have the power to make orders in respect of his works.
For reasons set out below, we are satisfied that it was not proper, proficient or satisfactory for the contractor to have knowingly applied a sealant over loose sand on the pavers, and to have failed to remove all of the original pave-set.
We will make an order that the contractor pays for the costs of removing all coatings on the pavers and re-applying new sealant and pave-set.
We are also satisfied that damage to the eaves ceilings, verandah posts and side gate were caused by the contractor's cleaning works, and will make an order that he pays for the cost of re-painting those surfaces.
However, we are not satisfied that that an order should be made in relation to the residue on the pavers, nor damage to the entry door, the drain, and the artificial turf, and will dismiss the application in respect of those items.

Issue for determination

The primary issue for determination is whether the contractor carried out regulated building service in a proper or proficient manner or is faulty or unsatisfactory.
In considering the primary issue, the following secondary issues arise:
1)Can the Tribunal make a building…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] WASAT 105
Decision Date: 25 NOVEMBER 2022

CaseChat Overview and Summary

In the case of East and Emerson, the dispute involved the contractor's execution of pressure cleaning and sealing works on brick pavers and limestone walls, and the application of pave-set between pavers. The owner sought to have these works declared as regulated building services under the Building Services Act, which would have required the contractor to be registered and for the contract to be a written one. The contractor argued that the works did not constitute 'painting work' and therefore did not fall within the definition of 'building service'. The matter was before the court to determine whether the works were regulated building services and if the contract met the necessary statutory requirements.

The primary legal issue was whether the pressure sealing and cleaning works on pavers and the application of pave-set between them constituted 'painting work', and thus a regulated building service. The court had to interpret the relevant statutory definitions, particularly those in the Building Services Act, Building Registration Act, and Contracts Act. The court also needed to determine whether the contract fell within the scope of a 'home building work contract', which would exclude it from the regulated building services regime.

The court found that the works did not fall within the definition of 'painting work' as they involved more than just the application of a protective coating. The court held that the pressure cleaning and sealing of brick pavers and limestone walls, along with the application of pave-set, constituted 'home building work'. Given that the contract value was below the threshold of $7,500, it did not qualify as a 'home building work contract'. Consequently, the works were not regulated building services, and the contract did not need to be in writing or the contractor required to be registered.

The court ruled that the contractor's works on the owner's brick pavers and limestone walls, along with the application of pave-set, did not constitute regulated building services. The court held that the contract value was below the threshold for a 'home building work contract'. Therefore, the contract did not need to be in writing, and the contractor was not required to be registered.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In turn, the following terms carry the following definitions: •'building service' is relevantly defined under s 3 of the Building Services Act as 'any other service or work prescribed for the purposes of this definition'; •'registered building service provider' is defined as having the meaning given in s 3 of the Building Services (Registration) Act 2011 (WA) (Building Registration Act); •'home building work' is defined as having the meaning given under s 3(1) of the Contracts Act;•'home building work contract' is defined as having the meaning given under s 3(1) of the Contracts Act. Regulation 4(2) of the Building Services (Complaint Resolution and Administration) Regulations 2011 (WA) (Building Services Regulations) provides that painting work is prescribed for the purpose of the definition of 'building service' under s 3 of the Building Services Act. The definition of 'painting work' excludes the application of a protective coating to a building which has first been treated by abrasive blasting or mechanical cleaning, if both processes are undertaken by the same contractor: reg 4(1)(b) of the Building Services Regulations. 'Home building work' is relevantly defined under s 3(1) of Contracts Act to include the whole or part of the work of:•'… improving … a dwelling': para (c) of the definition;•'… carrying out any associated work in connection with – … an existing dwelling': para (d)(ii) of the definition. 'Associated work', in turn, is defined to include 'retaining walls', 'paving' and 'driveways': s 3(1) definition of 'associated work' under the Contracts Act. A 'home building work contract' is defined as a contract between a builder and an owner for the performance by the builder of home building work, but does not, relevantly, include a contract for the performance of home building work if the amount stated in the contract as being payable under the contract for the work is $7,500 or less: s 3(1)(b)(ii) definition of 'home building work contract' under the Contracts Act and reg 2A of the Home Building Contracts Regulations 1992 (WA). In the Macquarie Dictionary Online (as at 25 November 2022), the following terms carry the following meanings:•'proper' is relevantly defined as '… 2. conforming to established standards of behaviour or manners; correct or decorous[.]';•'proficient' is relevantly defined as '1. well advanced or expert in any art, science, or subject; skilled[.]'; •'faulty' is relevantly defined as '1. having faults or defects; faulty workmanship[.]'; and•'unsatisfactory' is defined as 'not satisfactory; not satisfying specified desires or requirements; inadequate.' It is not in dispute that there was an agreement between the parties for the contractor to undertake pressure cleaning and sealing of the owner's brick pavers and limestone walls, and to apply pave-set between pavers, in consideration of the owner paying the contractor $3,767.50 inclusive of GST. We agree with the contractor that such works fall outside the definition of 'painting work', and that the contract value of such works falls under the minimum threshold for a 'home building work contract'.