EAST and EMERSON
[2022] WASAT 105
•25 NOVEMBER 2022
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 remedy order (BRO) in respect of the contractor's works?
2)If the answer to (1) is yes, were those works carried out in a proper or proficient manner or was faulty or unsatisfactory?
3)If the answer to (2) is no, whether a BRO should be made in respect of those works?
Background
The following background facts are not in dispute between the parties or are otherwise based on uncontentious documents.
On 6 July 2020, the contractor provided a quote for pressure cleaning and sealing of the owner's brick pavers and limestone walls, and for application of pave-set between pavers, in the amount of $3,767.50 inclusive of GST.
Pave-set is described in the quote as 'cementitious sand that is place[d] between your pavers to stop those [n]asty weeds and ants in between your pavers'.
The quote also describes the cleaning works as 'commercial pressure wash using our professional 5000 psi water blasting machine to make sure we get those nasty stains, moss and dirt removed'.
A separate quote was provided for hone and epoxy hardstand work, which is not the subject of the owner's complaint.
The parties agree that an amount of $2,883.25 inclusive of GST was paid by the owner, leaving $884.25 inclusive of GST outstanding.
On or about 20 July 2020, the contractor and/or his staff attended the owner's property and undertook pressure cleaning and sealing of the pavers.
The works were completed on or about 31 July 2020, although white residue was visible on the brick pavers.
The contractor conceded that the pave-set he had used, which he had purchased from Bunnings, did not perform well, and agreed to remedy the works.
Over the next four months, further works were undertaken by the contractor at the property.
The owner was not satisfied with the works, and did not pay the outstanding amount under the quote, which led to heated text messages being exchanged between the parties.
On or about 17 August 2021, the owner lodged a complaint with the Building Commissioner in relation to 'painting work' by the contractor, with a request that the contractor not return to his property to carry out any further works.
On 7 October 2021 a Building and Energy inspector, Mr Glendinning, conducted a site inspection of the property in the presence of the owner and his wife.
The contractor declined to attend the site inspection.
On 20 October 2021, proposed building remedy orders were drafted which required remedy of all bar one item in the complaint.
The contractor indicated to the Building Commissioner that he did not agree with the proposed orders and would take the matter to the Tribunal, whilst the owner requested that the matter be referred to the Tribunal as he did not think the contractor would comply with the remedy orders.
On or about 8 February 2022, the matter was referred to the Tribunal.
Owner's case
The owner is dissatisfied with the remedial work by the contractor, which, while removing most of the residue left by the original pave-set, had caused damage to his property.
There is white chemical residue on his verandah and patio paving (complaint items 2 and 3).
Further, whilst blasting and cleaning, sand was blasted up eaves on the front verandah, patio and the garage ceiling (complaint item 6), and paint was blasted off a new side gate (complaint item 8), and the entry door and verandah posts (complaint item 7).
The rollers of two sliding doors and a front flyscreen door were gummed up (complaint item 9), and drains were clogged and coated with hardened sealant (complaint item 10).
At the time of the final seal of the pavers, the contractor expected the owner to sweep bags of 'brickie sand' onto the pavers, which sand was pulled up when the contractor rolled the sealant onto the pavers, and is now sealed on the surface of the laundry, verandah and driveway pavers (complaint items 1, 2 and 4).
There remains some of the original pave-set on areas of the pavers (complaint item 5).
The owner seeks compensation for the damage to the pavers, which he says will all need to be removed and replaced ($22,816.10 for the bricks, $14,000 for removal and installation works).
He also says he is entitled to the cost of applying pave-set and sealant to the pavers ($2,995), and paint repair works to the affected eaves and ceilings ($2,024), the entry door ($385) and the verandah posts ($165).
He says he should be compensated for the cost of a replacement side gate ($455.40) or at least the cost of painting the side gate ($110).
The owner had replaced the sliding door by the time of the inspection, and so claims the cost of the sliding doors ($365).
The owner has not specifically quantified the cost of remedying the damage to the drains or synthetic turf.
Finally, he appears to be claiming compensation for the additional 25 kilolitres of water usage by the contractor during the water blasting works (although cost of the usage was not quantified).
The owner gave oral evidence at the hearing, and called the following witnesses: Mrs Lynette East (the owner's wife), Mr Matthew Glendinning (the inspector) and Mr Timothy Anderson (the owner's neighbour).
Contractor's case
The contractor disputes that the application can be determined by the Tribunal, as the alleged defective work is 'painting work' which is specifically excluded from the definition of 'regulated building service' under the Building Services(Complaint Resolution and Administration) Act 2011 (WA) (the Building Services Act).
The contractor also says that the contract is not a 'home building work contract' as it falls below the threshold value of $7,500 under the Home Building Contracts Act 1991 (WA) (the Contracts Act).
The contractor says he has taken full responsibility for the poor finish of the original pave set; indeed, he went above and beyond by upgrading the replacement sealer for free.
The contractor says that where sand is sealed into the surface, this was caused by the owner's and wife's insistence on sweeping sand in between his pavers before sealing was applied, against the contractor's recommendation.
The contractor contends that the white residue on the pavers is efflorescent salt appearing through the clear sealant, or was caused by fertiliser from pot plants or other chemicals used by the owner's wife.
The contractor also denies that the water cleaning had removed paint from the verandah posts and the entry door, and relies on photographs taken at the time of the original sealant application on 30 July 2020.
The contractor says that there were only three little spots of dirt on the ceiling of the eaves, which he had cleaned off to the owner's satisfaction.
The contractor gave oral evidence at the hearing, and called the following witnesses: Mr Nicholas Townson (an ex-employee), Mr Hayley Cvitan (an ex-employee), and Ms Tyne Blackhouse-Smith (his partner).
Evidence
Mrs East
Mrs East is a retired secondary school teacher.
She said that her husband and her were very house proud.
The original idea for sealing the bricks was to avoid clearing weeds, and ants and mould, which the contractor assured them the sealing work would address.
None of that has come to reality as they still have weeds and ants, and mould in their limestone.
Mrs East expressed frustration at the time it took the contractor to conduct remedial works.
She said the only chemicals she put on the brick pavers was one tablespoon of calcium, lime and rust stain remover on two bricks, which ironically are now perfectly clean.
Mrs East recalled that when the bags of yellow sand were thrown over the front driveway, she tried to speed up the four month process by sweeping in the sand with a broom.
The contractor then came back around 5 pm to do the sealing work.
Mr East
The owner is a secondary school teacher.
He said that during the initial works he went away to Margaret River with his wife for several days due to the level of toxicity.
When they returned, he observed sand in the seal (mostly around the house), which is still stuck on even with the subsequent remedial works.
The more water blasting and experimentation with chemicals the contractor undertook during remedial works, the more the quality of the brick pavers deteriorated.
The owner states that the photographs of his property upon which he relies in the proceedings were taken on 30 July 2020 after the initial pressure cleaning by the contractor, which was used up to ceiling height and on their flyscreen.
He did not take any photographs prior to the initial works by the contractor.
He also relies upon videos taken between May and August 2022, which, in our observation, show:
a)patches of discoloured brick pavers around the house and the driveway, with one larger patch near the front door;
b)vegetation growing through some brick pavers;
c)patches of discolouration on the ceilings to the verandah;
d)the metal is worn at the bottom of the metal side gate; and
e)the painting is worn between the crevices of the bottom of the front door.
He confirms that his wife and him are very house proud, and would not have left the front door looking like its current condition.
In relation to the side gate, they had only installed it 12 months before the contractor undertook the works.
The owner suggested sand be swept between the brick pavers, to which the contractor agreed.
During cross-examination, the owner initially testified that he assumed that the contractor had asked him to sweep the sand before he laid the seal.
When pressed, the owner then stated that he had a clear recollection that the contractor had asked the owner to sweep the sand in, and that the contractor himself had 'scattered [the sand] like feeding chicken over the patio area' prior to sealing the pavers.
The owner denies that the contractor had recommended against filling the pavers with sand, and denies that the reason why the swept the sand was that the contractor refused to sweep the sand.
The owner says his wife was wrong in her recollection about the time the contractor attended, and that it was 2 pm when he arrived.
The owner states that the bricks were the original bricks of the house made of clay, which were laid in 1998, and that they have never been sealed or pressure cleaned prior to the contractor being engaged.
He states that Midland Bricks no longer make clay bricks, so he sought quote for clay or concrete bricks.
Mr Anderson
Mr Anderson is a lead schedulist at a mining company, and, as part of his role, supervised the high pressure blasting of naval vessels.
He lives directly across the front of the owner's property.
He says their garages are directly aligned.
He was asked to look at the pavers, and thought they looked like sandpaper.
He thought the blasting was ineffective as there was no difference in the appearance of the pavers from when they were originally sealed.
He concedes he did not know whether the contractor was pressure blasting.
He also concedes that he did not witness any damage to the brickworks.
Mr Glendinning
Mr Glendinning is an inspector for the Building Commissioner for the last 14 years, and is a registered painter and decorator.
Following inspection of the property, he prepared the proposed building remedy orders, which recommended the contractor remedy all complaint items other than in relation to the sliding door (which had already been replaced).
Sand sealed on surface (items 1, 2 and 4)
Mr Glendinning observed yellow sand in the coating.
It appeared to be rolled in with a roller, rather than being blown in, and is over the face of the pavers.
He came to that view as the sand was not randomly placed (which he would expect if it was blown in) but was in a horizontal band.
Whilst he also observed some other contaminants in the pavers, it was overwhelmingly sand which he observed on the driveway, verandah and laundry side paving.
When asked whether the paving can still be salvaged by removing the coating, Mr Glendinning opines that it is probably not beyond the point of no return, and he cannot see why the pavers cannot be stripped again and a new coating re-instated.
As with any painting or coating, he considers that the substrate would need to be checked to ensure that it is suitable to accept that coating, and that no foreign matter is on the substrate before applying the coating.
Mr Glendinning also considers that given the colour of the sand (yellow) that it would be apparent to anyone before they applied a coating that there was sand on the pavers.
White residue (items 2 and 3)
Mr Glendinning observed grey-white discolouration on the verandah and patio pavers.
He believed that the stains were caused by the introduction of chemicals, and, given the evidence provided to him, had concluded that it was likely caused by the contractor's work.
However, he cannot preclude that the stains were caused by fertiliser from pot plants.
Whilst he cannot rule out that the stains are efflorescent salt which has come to the surface substrate, and accepts it can be visible through clear coating, he is not overly convinced it is efflorescent salt.
He states that he is not a chemical expert, but expects that if it is efflorescent salt that it would continue to be trapped under the plasticlike sealer coating, and would bubble the coating off.
When asked to estimate how much of the pavers were stained with the residue, Mr Glendinning states that 10% would be a fair estimate.
Where it is not possible to remove the residue, he agrees it is possible to replace only those pavers.
Residue of the original pave set (item 5)
Mr Glendinning observed that some areas of paving had sand in the joints and others did not, which produced an inconsistent finish.
He concludes that the pave-set was not removed in some areas of the paving.
Eaves (item 6), verandah posts and entry door (item 7) and side gate (item 8)
Mr Glendinning observed sand spots on the eaves lining, which came off easily when he rubbed them with his hand.
This led to his opinion that the residue was left by the pressure blasting.
He also formed his view that the defective painting on the timber door was due to the contractor's work because he was aware that the contractor had used a high pressure cleaner, and because the defective paintwork only appeared on the cracks and not anywhere else on the timber door.
However, Mr Glendinning agrees that it is plausible that the paint on the entry door had already been stripped off due to general wear and tear and normal movement and cracking of timber.
Rollers and screen of sliding door gummed up (item 9)
As the sliding door had already been replaced at the time of his inspection, Mr Glendinning could not comment on this complaint item.
Drains and turf clogged (item 10)
Mr Glendinning observed that coating was causing the cover to one of the drains to be stuck, and could not be removed easily.
He did not inspect the other drain on the other side of the house, but based on the photograph submitted by the owner, commented that it appeared that the coating had a similar effect on the other drain.
Mr Glendinning did not inspect the synthetic turf at the time of the inspection.
Mr Emerson
The contractor has been doing professional cleaning and sealing work for the last 20 years.
He did the initial seal and clean at the property, which involved water blasting, cleaning and sealing, and adding pave-set.
Their usual pave-set was not available, so he used a product from Bunnings.
Pave-set is usually polyfibre, but the Bunnings product was cementious.
When efforts in August 2020 to remove pave-set from the top of the pavers via water blasting were unsuccessful, the parties agreed to remove the sealer using a sealer stripper and applying a new sealer.
This second attempt in September 2020 was successful in removing the white residue from the original pave-set, although the owner then complained about stains to his pavers, which the contractor attributes to the acidic effect of fertilisers for the pot plants or chemicals which the owner's wife put on the pavers.
The contractor then offered to upgrade the sealer to a urethane sealer for free 'as a way to say sorry', and the owner also requested removing all pave-set and replacing with freestone poly pave-set.
The contractor says that nothing was ever good enough for the owner, and Mr Townson and he were constantly attacked with verbal abuse from Mrs East.
He accepts that he bought and delivered the sand to the property, but denies that he told the owner and his wife to lay out the sand before sealing the pavers.
Instead, he told them to wait for the sealing before laying the sand.
He concedes that he was aware sand was on the substrate at the time he applied the sealer; indeed he told the owner that if he rolled over soft sand, it would pick up the sand.
On the last time he went out to the property, the contractor attended with Ms Cvitan to clean the eaves, and denied leaving a bottle of acid for the owner's wife.
He says the drain was free of debris when he worked at the property.
He challenges the quotes obtained by the owner as they were prepared in the absence of inspection of the site.
He also challenges that the pavers all have to be replaced, and that it is possible to get second-hand pavers.
When asked about the cost of blasting off the sealer, he states that the labour cost of blasting and applying a new coating is $8,910, of which 75% of the work is blasting work.
The contractor relies on photographs he took on 30 July 2020 to support his view that the state of the paintwork on the verandah posts and entry door was already in a deteriorated condition and that the drains were clean after their works.
Mr Townson
Mr Townson had worked for the contractor for 12 months before attending the property during with the initial works and subsequent remedial works.
He recalls constantly going back to clean the property (at least five or six times) and rectifying whatever problem was raised, and cleaning nearly every paver using a power wash.
Mr Townson did not recall observing any discolouration of the pavers.
He recalls that the lady at the property was sometimes difficult and found fault with issues, and recalls vaguely that she had put chemicals on the pavers but could not confirm whether it would have been just a teaspoon on two bricks.
Ms Cvitan
Ms Cvitan was working for the contractor in November 2020, and was involved in cleaning works at the owner's property.
She recalls using a broom to sweep off dirt and using a wet rag moistened with water to clean.
They did not use any other cleaning agent, only water from a water tank in a trailer.
She thought that the driveway looked 'amazing' and 'awesome', and the owner seemed pleased with it.
Ms Blackhouse-Smith
Ms Blackhouse-Smith is the contractor's partner, and has worked with him on occasion.
She has observed him pouring pave-sets in rows and diagonally so it can gather in every single crack, which is usually done before sealing.
She has never seen him sweeping sand over pavers.
She was only present once at the property on around 17 October 2020, and did not observe anything unsatisfactory about the works; indeed, she thought the works were 'a good job overall'.
She concedes however that she was only standing in the garage near the 'ranch slider' and side gate, and was not in a position to see all of remedial work on the pavers.
Legislative framework
Building services complaint
Under s 5(1) of the Building Services Act, a person may make a complaint about a regulated building service not being carried out in a proper and proficient manner or being faulty or unsatisfactory.
Under s 38(1)(a) of the Building Services Act, the Tribunal can make a BRO if satisfied that the regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory.
If not so satisfied, the Tribunal may decline to make a BRO: s 38(1)(b) of the Building Services Act.
A BRO is an order which compels a person who carried out the regulated building service to remedy the building service (s 36(1)(a)), or pay for costs of remedying the building service (s 36(1)(b)) or compensation (s 36(1)(c)): s 36(1) of the Building Services Act.
'Regulated building service'
'Regulated building service' is defined under s 3 of the Building Services Act as any of the following:
a)a building service carried out by, relevantly, a registered building service provider;
b)home building work that is –
i)carried out by a person for another person under a home building work contract or other contract or arrangement for gain or reward; and
ii)not carried out for a person who is in turn obliged to perform the work under another contract;
c)any other service or work prescribed for the purposes of this definition.
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.
Building service
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
'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.
Home building contract
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).
Service not carried out in a 'proper' and 'proficient' manner or is 'faulty or unsatisfactory'
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.'
Secondary Issue 1 – can the Tribunal make a building remedy order in respect of the contractor's works?
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'.
Nonetheless, the contractor's works falls within the second limb of the definition of 'regulated building service', as it constitutes 'home building work' as improvements to a dwelling, or works to paving, retaining walls and driveways in connection with an existing dwelling.
Further, it is not necessary for the works to be carried out by the contractor under a home building work contract, as long as it is carried out under a 'contract or arrangement for gain or reward'.
The contractor also argues that he considers his contractual obligations discharged after he removed the white residue caused by the pave set and applied a new sealant in September 2020, and further cleaning and sealing works to appease the owner should be considered to be outside the contract.
However, on the contractor's own evidence the further works were undertaken as an apology for the original defective pave-set, and can be considered to be a way to foster goodwill with an unhappy client.
In our view, that purpose for undertaking the further works constitutes sufficient gain or reward under the contract or arrangement between the parties, and therefore the further works are also covered under the second limb of the definition of 'regulated building service'.
Secondary Issue 2 – were works carried out in a proper or proficient manner or were faulty or unsatisfactory?
Sand sealed on surface (items 1, 2 and 4)
There is contested evidence between the contractor and the owner about the contractor spreading sand over the pavers before applying the sealant, and the contractor asking the owner and his wife to sweep the sand over the pavers.
We are doubtful that either event occurred, given the evidence of the contractor and Mr Glendinning that cleaning generally precedes any sealing work.
Nonetheless, it is not necessary to reconcile the differences between the parties.
We find that the concession by the contractor that he applied the sealant in knowledge that sand had been swept over the pavers is, in our view, an indication of a dereliction of the proper or satisfactory standard of sealing work; that is, that the pavers should not have been sealed while there is loose foreign matter on the pavers.
It should have been apparent to the contractor, having had 20 years of experience of undertaking professional cleaning and sealing work, that the quality of the finish to the sealing work would be compromised by the loose sand on the surface of the pavers, and, in our view, the contractor should have declined to undertake the sealing under those conditions.
As such, we find that the sealing works were not carried out in a proper or proficient manner and are unsatisfactory.
White residue (items 2 and 3)
The parties have provided contradictory evidence about the cause of the white residue, with the owner asserting that the contractor's works caused the residue, while the contractor asserts that the pot plant fertilisers or chemicals used by Mrs East caused the residue, or alternatively that it was efflorescent salt.
Whilst we accept Mr Glendinning's opinion and logic for concluding that the white residue does not appear to be efflorescent salt, he concedes that he is not a chemical expert and cannot preclude that the stains could have been caused by fertiliser from pot plants.
There is a dearth of evidence from the owner and Mrs East about exactly when the stains appeared to allow us to eliminate fertiliser as a cause of the stains, as such, we are unable to be satisfied that any of the contractor's works have caused the white residue stains on the pavers.
Residue of the original pave set (item 5)
We accept Mr Glendinning's opinion and basis for concluding that the pave-set was not removed in some areas of the paving.
Given the contractor's acceptance that the original pave-set was deficient and that he had accepted the owner's request to remove all of the original pave-set and to apply a different pave-set, we find that the failure to remove all of the original pave-set indicates work which was not carried out in the proper or proficient manner, or was faulty or unsatisfactory.
Eaves (item 6), verandah posts and entry door (item 7) and side gate (item 8)
The parties disagree about the state of the paintwork on the verandah posts, entry door and side gate when the contractor undertook the works.
Unfortunately, the photographs submitted by both parties have not been able to assist in resolving this controversy as they were taken on 30 July 2020, after the original cleaning work by the contractor.
As such, we rely on the opinion of Mr Glendinning in finding that the deteriorated paintwork on the verandah posts and side gate was caused by the pressure cleaning by the contractor.
However, as Mr Glendinning was not able to preclude that the paint on the entry door was stripped off due to general wear and tear and movement and cracking of timber, we are not satisfied that the deterioration in the paintwork of the entry door was caused by the pressure cleaning by the contractor.
As to the eaves, we accept the evidence of Mr Glendinning that there remains residue on the ceiling of the eaves, and his opinion that the residue was left by the pressure cleaning, such as to be satisfied that the residue on the ceilings of the eaves was caused by the pressure cleaning by the contractor.
For the eaves, verandah posts and side gate of the owner's property to be affected by the pressure cleaning by the contractor without the contractor making good the effects of the cleaning is, in our view, not work which was carried out in a proper or proficient manner, nor was it satisfactory.
Rollers and screen of sliding door gummed up (item 9)
As the owner replaced the sliding door before lodging his complaint, it has not been possible to ascertain whether the alleged damage to the sliding door was capable of being rectified by any other means than by replacement.
Mr Glendinning is also not able to provide an opinion on whether the effect on the sliding door was due to any deficient work undertaken by the contractor.
As such, we are not satisfied that there is sufficient evidence to support this complaint item, and will dismiss this part of the claim.
Drains and turf clogged (item 10)
We accept Mr Glendinning's opinion that the coating was causing the cover to one of the drains to be stuck, which we find is evidence of work which was not carried out in a proper or proficient manner, or was faulty or unsatisfactory.
Given that Mr Glendinning did not express an opinion about whether there was any damage to the artificial turf, we are not satisfied that there is sufficient evidence to support this complaint item, and will dismiss this part of the claim.
Issue 3 – should a BRO be made?
In light of the owner's request that the contractor refrain from returning to his property to undertake remedial works, and given the level of acrimony between the parties, we accept that the most appropriate orders in the circumstances are monetary BROs under s 36(1)(b) or (c) of the Building Services Act.
In respect of the sand sealed onto the surface of the pavers and the remaining original pave-set on pavers, we rely on the evidence of Mr Glendinning that it is still possible to strip off and re-coat the pavers.
We will adopt the contractor's estimate that blasting work comprises 75% of his cost of the labour to blast and seal ($8,910), which equates to a cost of $6,682.50 for pressure cleaning.
We accept the quote obtained by the owner for the cost of applying pave-set and sealant to the pavers (amounting to $2,995).
A deduction should be made, however, for the outstanding amount under the contract of $884.25, as the owner should not be unjustly enriched for having the benefit of the cost of cleaning and application of a sealant and pave-set, without having fulfilled all of his obligations under the contract.
As to the damage to the eaves, verandah posts and side gate, we accept the painting quote by the owner as compensation for such damage, which amounts to $2,299.
In respect of the damage to the drain cover, in the absence of any evidence quantifying the cost to remedy the damage, there is no basis to make a monetary BRO, and we decline to make a BRO in respect of this aspect of the claim.
Finally, to the extent that the owner makes a claim for the cost of water used during cleaning works, no evidence has been submitted on what, if any, agreement was made as to who was to bear such cost, which, in any event, has not been quantified by the owner, and so that element of the owner's claim must be dismissed.
In summary, we will make a BRO that the contractor pay the owner the sum of $11,092.25.
Conclusion
For reasons set out above, we find that the contractor has not carried out a regulated building service in a proper or proficient manner or it is faulty or unsatisfactory, and we will make a building remedy order that he pay the owner the sum of $11,092.25.
Orders
The Tribunal makes the following orders:
1.The application is partially allowed.
2.Pursuant to s 38 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), the Tribunal makes the following building remedy order, in accordance with s 36(1)(b) and s 36(1)(c):
(i)on or before 29 December 2022, the respondent must pay the applicant the sum of $11,092.25.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS K Y Loh, MEMBER
25 NOVEMBER 2022
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