EDGE INVESTMENTS WA PTY LTD and Q GROUP WA PTY LTD
[2024] WASAT 9
•23 FEBRUARY 2024
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION: EDGE INVESTMENTS WA PTY LTD and Q GROUP WA PTY LTD [2024] WASAT 9
MEMBER: MS KY LOH, MEMBER
MR C MARSH, SESSIONAL MEMBER
HEARD: 4, 5, 6 AND 7 JULY 2022
8 AND 9 FEBRUARY 2023
15 AND 31 MAY 2023
DELIVERED : 23 FEBRUARY 2024
FILE NO/S: CC 62 of 2022
BETWEEN: EDGE INVESTMENTS WA PTY LTD
First Applicant
DAVID VICTOR PARIN
Second Applicant
AND
Q GROUP WA PTY LTD
Respondent
Catchwords:
Building services complaint - Building contract terminated prior to completion of works - Whether incomplete works constitute works carried out in a manner not proper or proficient or were faulty or unsatisfactory - Whether works which depart from approved drawings constitute works carried out in a manner not proper or proficient or were faulty or unsatisfactory - Whether costs can be claimed for loss of rental of properties not fully constructed
Legislation:
Building Act 2011 (WA), s 3
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(1), s 7(1), s 9(1), s 10(1), s 11(1)(d), s 36(1), s 36(1)(a), s 36(1)(b), s 36(1)(c), s 38, s 38(1)(a), s 38(1)(b), s 43, s 49, s 49(1), s 49(7), s 57
Building Services (Registration) Act 2011 (WA), s 3, s 11
Building Services (Registration) Regulations 2011 (WA), reg 3, reg 13, Sch 2, Sch 3
Home Building Contracts Act 1991 (WA), s 3(1)
State Administrative Tribunal Act 2004 (WA), s 9, s 48, s 87, s 87(1), s 87(2), s 87(3), s 87(4), s 87(5), Pt 4, Div 5
State Administrative Tribunal Rules 2004 (WA), r 40, r 41, r 42(2)
Result:
Application partially allowed for four complaint items
Category: B
Representation:
Counsel:
| First Applicant | : | S Boni |
| Second Applicant | : | S Boni |
| Respondent | : | J Jacobson |
Solicitors:
| First Applicant | : | Western Legal |
| Second Applicant | : | Western Legal |
| Respondent | : | Jacobson and Associates |
Case(s) referred to in decision(s):
Chew and Director General of the Department of Education and Training [2006] WASAT 248; (2006) 44 SR(WA) 174
Lewis v Waco Pty Ltd [2016] WASAT 127
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; [2001] 52 NSWLR 705
Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S)
Pearce & Anor and Germain [2007] WASAT 291 (S)
Summerville and Department of Education & Training & Ors [2006] WASAT 368 (S)
Waldron and Afra Construction Pty Ltd [2013] WASAT 207
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32; (2016) 213 LGERA 81
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Mr Parin is the owner of a block of land at 218 Ewen Street, Woodlands (the property), which was approved by the City of Stirling (the City) for development into eight residential dwellings.
Edge Investments (WA) Pty Ltd (Edge Investments) was appointed by Mr Parin as the project manager of the development.
On 11 September 2017, Mr Parin and Edge Investments (collectively the applicants) entered into a lump sum building contract with Q Group WA Pty Ltd (the builder) to build the eight dwellings on the property, and the City issued a building permit for the building works on 19 September 2017.
Construction of the building works commenced in early October 2017; however, by June 2018 a notice of termination of the building contract was served by the applicants on the builder.
The parties do not seek a determination by the Tribunal of the validity of the termination of the contract – that is the subject of proceedings before the Supreme Court of Western Australia (CIV 2073 of 2018).
Instead, the applicants assert 119 instances of defective works in two respects: firstly, some works were not carried out in a proper or proficient manner as the builder carried out works at variance to drawings approved under the building permit; and secondly, some works were faulty and unsatisfactory.
The applicants seek monetary orders against the builder, as well as costs.
Save for two items conceded at the hearing, the builder says that most items of complaint were in fact incomplete works and otherwise disputes that the works were defective in nature.
We agree that some of the complaint items relate to incomplete works for which the builder lost the opportunity to complete when the contract was terminated, and, other than two additional complaint items to the two conceded by the builder to have been performed in a manner which was not proper or proficient or were faulty or unsatisfactory, otherwise decline to make a building remedy order in respect of the significant majority of the complaint items.
For reasons set out below, we will make an order for the builder to pay the applicants $6,371 and decline to make any order as to costs.
Issue for determination
The primary issue for determination is whether the builder carried out a regulated building service in a proper or proficient manner or was faulty or unsatisfactory under s 43 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (the Act).
In considering the primary issue, the following secondary issues arise:
(1)Were the works regulated building services?
(2)Should a distinction be drawn between incomplete works and works sufficiently complete to be assessed under s 43 of the Act?
(3)Are works which deviate from approved plans or contractual specifications considered not proper or proficient, or faulty or unsatisfactory work?
(4)Were the works carried out in a proper or proficient manner or were faulty or unsatisfactory, and if so, should a building remedy order (BRO) be made?
(5)Should an order for costs be made:
(a)in relation to costs of the proceedings; and
(b)in relation to costs 'thrown away' for, or loss arising from, delays to the proceedings and the builder's delay in complying with the order to file closing submissions?
Background
The following background facts are not in dispute between the parties or are otherwise based on uncontentious documents.
Factual background
At all relevant times, Mr Parin is the registered proprietor of the property, as well as the sole shareholder, director and secretary of Edge Investments.
An application for planning approval to develop the property into eight residential dwellings was submitted on 8 July 2015, which application was conditionally approved by the City on 1 October 2015.
On or about September 2017, the applicants and the builder entered into a lump sum building contract to carry out the building works on the property for a contract sum of $1.595 million (including GST).
On 19 September 2017, the City issued a building permit (Applicants' bundle of hearing books tendered as Exhibit 1, pp1052 – 1053) to the builder, as building contractor, for the construction of 'Eight (8) Residential Units, Carports, Retaining Walls and Letter Box'.
The builder commenced building works on the property sometime in October 2017.
Mr Parin raised issues of outstanding, incomplete or defective works with the builder from around December 2017, and up to May 2018.
Based on the statement of claim, the applicants made some, but not all, progress payments to the builder.
Based on the statement of claim, the applicants served a notice to remedy on the builder on or about 23 May 2018, and served a notice of termination on the builder on or about 8 June 2018.
The building works remain incomplete.
On 21 December 2021, the applicants lodged a complaint about defective works by the builder 'as detailed in attached various reports published by expert Mr Andrew van der Meer dated August 2018/12 December 2018/8 April 2019/28 May 2019/15 October 2019' under s 5(1) of the Act.
On 19 January 2022, the Building Commissioner referred the applicants' complaint to the Tribunal under s 11(1)(d) of the Act.
The substantive hearing of the matter took place on 4 – 7 July 2022, 8 – 9 February 2023, and 15 and 31 May 2023.
As the written transcripts were paginated in two parts – the first relates to the hearings in 2022, and the second relates to the hearings in 2023 – for ease of reference, we will identify the transcript page references for the second part as ending with '(2)' (eg. page 35 of the written transcripts of hearings in 2023 will be labelled 'T35(2)').
Design and architectural drawings
The building permit refers to a Certificate of Design Compliance (CDC) issued by Mr Barron on 23 June 2017.
Mr Barron's CDC is item 61 of the index to Exhibit 1 (pp 935 – 1002), and comprises the BA3 form completed by Mr Barron, Germano drawings dated 30 March 2017 and Lalli drawings described as 'Rev 3' dated 20 April 2017 (Rev 3 Lalli drawings).
Mr Barron's BA3 form however refers to Lalli drawing 'Rev 2 dated 05/09/16' (Rev 2 Lalli drawings).
No copy of the Rev 2 Lalli drawings has been filed with the Tribunal.
Based on versions of the Germano drawings filed with the Tribunal, it appears that these drawings were further updated on 20 September 2017 ('entitled Amended Working Drawings'), 30 October 2017 (entitled 'Dropped Footings') and 9 February 2018 (entitled 'Onsite Changes') (Exhibit 1, pp14 – 32) before the contract was terminated.
By email from the City's Principal Building Surveyor Mr Joseph Rowe‑Martin to Mr Parin of 27 June 2022 (Exhibit 1, p1054), the City advised that the version of the Lalli drawings received by the City with the building permit application was in fact the Rev 3 Lalli drawings.
Contractual provisions and variations
The set of documents described in item 62 of the index to the Applicants' book of documents as 'executed building contract with addenda and plans – 11–09–17' (Exhibit 1, pp 1003 – 1051) is comprised of:
(a)the 'HIA lump sum building contract' dated 11 September 2017;
(b)the construction addenda prepared by 'Edge Developments Perth' (undated);
(c)plans of Germano Designs dated 20 September 2017 (entitled 'Amended Working Drawings');
(d)M A Lalli & Associates dated 24 July 2017 (entitled 'Cast in Lintel Amendments', 'Rev 4') (Rev 4 Lalli drawings).
All of the pages comprised in this set of documents are initialled at the bottom of the pages, and appear to bear the same initials.
The lump sum building contract includes the following relevant terms:
(a)cl 1(a): 'The Builder agrees to execute and complete for the Owner the building work described in Item 3 of the schedule ("the Works") upon the land and existing improvements described in item 3 of the Schedule ("the Site") in a proper and workmanlike manner and in accordance with this Contract and the drawings, plans and specifications (inclusive of all addenda and colour schedules) agreed between the parties and annexed hereto and for the purposes of identification signed by each of them (which said drawings plans and specifications and colour schemes are hereinafter collectively referred to as the "Construction Documents") for the price and otherwise upon the terms and conditions herein appearing.';
(b)cl 2 'Owner's warranties':
(i)cl 2(f): 'Unless the Builder has prepared or caused to be prepared the Construction Documents the Owner warrants that the same are accurate, free of error and consistent in every respect … and the Owner shall indemnify the Builder against any action, claim, costs, or expenses arising from any breach of this warranty.'
(ii)cl 2(g)(i): 'Where there is a difference or inconsistency between the Construction Documents and the terms of this Contract the latter shall prevail;'
(iii)cl 2(h): 'Subject to sub-clause (f) hereof and where the Construction Documents have not been prepared or caused to be prepared by the Builder, the Builder shall notify the Owner of any discrepancy or error in the Construction Documents as soon as practical upon discovering the same and if the Owner shall not give the Builder within FIVE (5) days of receiving such notice, such instructions directions or drawings as may be necessary to enable the Builder to proceed with the Works the Builder may determine the manner in which the discrepancy or error is to be resolved and may proceed with the Works accordingly. If as a result of any such discrepancy or error the Builder incurs additional work or expenses such work or expense shall be treated as a variation pursuant to Clause 10'.
(c)cl 3 'Builder's duties':
(i)cl 3(a): 'The Builder shall obtain any permits or licences that are required for the performance of the Works pursuant to all statutes, codes, ordinances, rules, regulations, proclamations or orders of any officer or body lawfully empowers to make or issue the same.'
(ii)cl 3(c): 'If a variation of the Construction Documents or Works is necessary to enable the Builder to comply with Clause 3(a) and Clause 3(b) the Builder shall notify the Owner in writing giving the reason for such variation and the Owner shall notify the lending institution (if any) of such notice forthwith upon receipt thereof and within FIVE (5) days of such notice give his written instructions to the Builder. Should the Owner fail to give the Builder his instructions within the prescribed time the Builder shall carry out the work required for compliance. The variation shall be dealt with pursuant to Clause 10.'
(d)cl 8 'Possession of the site': 'Forthwith upon the execution hereof and until practical completion the Builder shall be entitled to exclusive possession of the Site for the purpose of the performance of the Works and the Owner shall do all that is necessary to confer the same upon the Builder PROVIDED THAT the owner or his duly appointed representative approved by the Builder in writing … shall have access to the Site and to the Works or any part thereof for the purpose of inspection and viewing the progress of the Works but only at such reasonable times and in such manner as shall not interfere with or prevent the Builder from carrying out the Works …'
(e)cl 10 'Variations':
(i)cl 10(a): 'If the Owner shall require any variation to the Works or the Construction Documents, he shall furnish the Builder with a written request for such variation … in the event the Builder agrees to execute any such variation then it shall be carried out as if it were part of the Works under the Contract.'
The construction addenda relevantly provided as follows:
(a)cl 1.0 'Tender details':
(i)cl 1.1 provided for 'Owner details' and named Edge Investments as owner; cl 1.2 provided for 'Project Manager Details' and named Edge Investments as project manager. A note was included that 'Full Access to site required during the course of construction for project manager or nominated supervisor';
(ii)cl 1.4 'Project Details': '8 Multiple Dwellings constructed from Brick, Concrete and Iron. Double Storey in height.'
(iii)cl 1.9 'Practical Completion Date': '14 Months from completion of site works'
(iv)cl 1.15 'Contract Documents': 'Documents have been supplied by the Owner[.] In the event that there is a discrepancy between the documents, the Builder shall revert to the Owner for directions prior to the execution of works surrounding the discrepancy. The Owner acknowledges that under the HIA Lump Sum building contract, direction must be given to the Builder within a maximum 5 working days.'
(v)cl 1.18 'Alternative Solutions': 'In the event that alternative solutions are requested by either party, the cost in developing, documenting and certifying these is borne by the party requesting the alternative solution. The Owner must agree to the alternative solution prior to proceeding with any works in any way.'
(b)Cl 2 'Preliminaries':
(i)cl 2.2 'Certified Drawings including Certification': 'By Owner';
(ii)cl 2.3 'Local Council Fee for Building Licence/BCITF/BRB Levy': 'By Owner'
(c)cl 3.0 'Siteworks':
(i)cl 3.7 'Chemical Grout injection': 'By Builder as per engineering drawings (west retaining wall);
(d)cl 6.0 'Brickwork':
(i)cl 6.1 'Brickwork External': '… Location – All external walls to be rendered';
(e)cl 7.0 'Aluminium Joinery & Metal Works':
(i)cl 7.3 'Door Jambs – Internal': 'Type – JDS Metal Door Frames'; 'Profile – Modular – 2.3m high with 25mm return';
(f)cl 14.0 'Plaster':
(i)'Internal Walls' – 'Finish – Float and set'; 'Location – All Internal Walls';
(g)cl 19.0 'Plumbing':
(i)cl 19.3 'Gas Hot Water System': 'Rinnai 20Lt inside pvc recessed box' … 'NOTE: These are subject to relocation form [sic] original Building Permit Drawings'
(h)cl 21.0 'Electrical':
(i)cl 21.23 'Hot Water System': 'Rinnai Infinity 20L, 1 per unit. Include recessed PVC housing and cover NOTE: These are subject to relocation form [sic] original Building Permit Drawings NOTE: These are subject to ATCO approval'.
(i)cl 24.0 'Painting':
(i)cl 24.1 'External Painting': 'Rendered Walls – Acratex Coventry Course and 1 coat Acrashield';
(ii)cl 24.4. 'External Metal': 'Number of Coats – 3'; 'Colour – TBC';
(iii)cl 24.6 'Steel Posts': 'Number of Coats – 3'; 'Colour – TBC'.
A variation certificate was raised by the builder in relation to variations dated 4 October 2017 to 16 November 2017, including:
(a)a variation dated 4 October 2017 described as 'Extra over to upgrade Carports to be as per original Architectural and Engineering Drawings with the framework in a hot dip galvanised finished with concealed fixing as understood between the client and subcontractor ...';
(b)a variation dated 31 October 2017 described as 'Changes to Plans 30/10/17 – Dropped Footing as per revised working drawings 9/11/17 including rear and front return retaining walls';
(c)a variation dated 7 November 2017 described as 'Jason windows current quote … Changes to drawings as per construction issue 9th November 2017';
(d)a variation dated 16 November 2017 described as 'Change to construction drawings'.
Finally, whilst the applicants have referred to a document in their bundle of documents entitled 'Specification for Brick or Framed Construction' dated and signed 7 June 2017 (Exhibit 1, pp959 – 966), this document does not fall within their item described as 'executed building contract with addenda and plans – 11-09-17' (Exhibit 1, pp 1003 – 1051), nor does it appear to have been provided to the builder, as the builder referred to in this document is 'Choice Living (WA) Pty Ltd'.
To the extent that any party seeks to rely on it, we will disregard this document as we are not satisfied it has been established as part of the contract between the applicants and the builder.
Applicants' case
The applicants contend that the builder has failed to perform regulated building services in a proper and proficient manner, or the works were faulty or unsatisfactory, as the works:
(a)were not permitted by the local permit authority to be carried out (in the sense that the works were not carried out in accordance with the drawings approved as part of the building permit); or
(b)did not comply with the relevant building codes; or
(c)were not carried out in accordance with the terms of the contract.
The applicants submitted a Scott Schedule with their complaint to the Building Commissioner, which contained 58 items, at an estimated rectification cost of $532,828.87.
At a directions hearing, the applicants were directed to file a complaint schedule which identified complaints by location of the alleged defects.
The applicants lodged their complaint schedule with the Tribunal on 16 March 2022, now totalling 121 items, with an estimated cost of remedial works of $532,731.95.
The following table summarises the applicants' complaint schedule, with description of the defective works taken from the relevant parts of the expert reports of Mr van der Meer which were referred to in the complaint schedule or in the course of the hearing.
Item Location Description (based on evidence) Remedy 1. Central Common Areas western wall Van der Meer (VDM) Aug 2018 report
pG-01: 'insufficient water proofing not compliant to Australian Standards. Requires excavation, parge, seal and layer backfill compaction.'
pG-01(a):'No parging to mass masonry retaining wall, insufficient water proofing not compliant to Australian Standards. Requires excavation, parge, seal and layer backfill compaction.'Excavate, parge, seal and layer back fill compaction. 2. Central Common Areas eastern wall VDM Aug 2018 report
ppG-02, G-02(a): 'No parging to mass masonry retaining wall, insufficient water proofing not compliant to Australian Standards. Requires excavation, parge, seal and layer backfill compaction.'Excavate, parge, seal and layer back fill compaction. 3. Unit 3 Northern court yard VDM Aug 2018 report
p3-08: 'No parging to mass masonry retaining wall, insufficient water proofing not compliant to Australian Standards. Requires excavation, parge, seal and layer backfill compaction.'Excavate, parge, seal and layer back fill compaction. 4. Unit 4 Northern court yard VDM Aug 2018 report
p4-19: 'No slurry mix installed to backside of retaining as require in Engineer report in Highlighted location. Requires superfine grout injection.'Inject super fine cement 5. Unit 1 southern car bay VDM Aug 2018 report
p1-18: 'Poor and unsatisfactory shoring by means or steel pickets and form ply. Requires removal as undermining of adjacent foot path. NOTE: Pickets have been incased in concrete footing, footing requires complete removal and reinstallation.'
P1-19:'Poor and unsatisfactory and insufficient soil stabilization as highlighted. Requires sheet piling and retaining construction.'Remove temporary shoring, install sheet piling and make good 6. Unit 2 southern alfresco VDM Aug 2018 report
p2-12: 'No parging to mass masonry retaining wall, insufficient water proofing not compliant to Australian Standards. Requires excavation, parge, seal and layer backfill compaction.'Excavate, parge, seal and layer back fill compaction. 7. Central Common Area western wall VDM Aug 2018 report
pp1-28, 1-29, 1-30, 4-21: 'Damage evident to dividing fence. Requires replacement.'Replace damage[d] colour bond sheet panels 8. Central Common Area western wall
VDM Aug 2018 report
p4-20: 'Soiling evident to dividing fence. Requires cleaning.'
P4-20(a): 'Western boundary flashing and fence. Soiling evident to flashing dividing fence. Requires cleaning.'Clean cement off colour bond panels 9. Unit 1 internal VDM Aug 2018 report
pp1-33, 1-34, 1-35: 'Concrete slurry to floors throughout. Requires removal.'Remove slurry and make good 10. Unit 2 parapet wall – entire VDM Aug 2018 report
pp2-24, 2-25, 2-27: 'Poor face masonry workmanship throughout entire wall, requires rebuilding or rendering.'
Pp2-26, 2-29: 'Poor face masonry workmanship throughout entire wall, requires rebuilding. Second face blocks have been installed to exposed face. Requires rebuilding or rendering.'
P2-28: 'Poor face masonry workmanship throughout entire wall, requires rebuilding. Noted lower wall mortar colour variation as highlighted. Requires rebuilding or rendering.'
P2-30: 'Poor face masonry workmanship throughout entire wall. Noted lower wall mortar colour variation as highlighted. Requires rebuilding or rendering.'i. Remove and replace parapet wall; or
ii. Render face brick wall11. Unit 3 parapet wall – entire VDM Aug 2018 report
pp3-10, 3-10(a), 3-12, 3-13: 'Poor face masonry workmanship throughout entire wall. Second face blocks have been installed to exposed face. Requires rebuilding or rendering.'i. Remove and replace parapet wall; or
ii. Render face brick wall12. Unit 4 western parapet wall VDM Aug 2018 report
pp 4-13, 4-13(a), 4-14: 'Misalignment and poor workmanship of face masonry wall not to Australian Standards and Tolerances. Requires rebuilding.'replace defective wall 13. Unit 1 external rear bedroom 1 VDM Aug 2018 report
p1-32: 'Insufficient masonry ties not to Australian Standards. Requires additional ties.'Insert additional brick ties to AS 3700 14. Unit 1 bed 2 VDM Aug 2018 report
p1-20: 'Service duct not to specifications requires solid long reach above 28c to underside slab. NOTE: Bricks not keyed in to Australian Standards. Requires rebuild in local area.'Install long reach above 28c to underside of slab 15. Unit 1 bed 2 external VDM Aug 2018 report
p1-22: 'Poor workmanship, Bricks not bonded in to Australian Standards. Requires tying in.'Bricks require tying into AS3700 16. Unit 1 rear stair case support wall VDM Aug 2018 report
pp1-23: 'Separation evident to adjacent wall due to no or lack of sufficient key in as Highlighted. Requires tying in.'
p1-23(a): 'Separation evident to adjacent wall due to no or lack of sufficient key in as Highlighted.'
p1-23(b): 'Separation evident to adjacent wall due to no or lack of sufficient key in as Highlighted. Rebuild to localised area.'Remove and rebuild wall to AS3700 17. Unit 2 bath 2 VDM Aug 2018 report
p2-09: 'Masonry not keyed in to Australian standards to localized area bath 2 to service duct. Tying in.'Remove and rebuild wall to AS3700 18. Unit 4 kitchen external VDM Aug 2018 report
p3-04: 'No weep holes installed above window.'Install weepholes to AS3700 19. Unit 7 storeroom VDM Aug 2018 report
p4-04: 'Service inspection point penetration, plumbing access point not serviceable. Plumbing service point requires relocation at this point. Relocation of gas service is also required.'Relocate plumbing service point
Relocate gas20. Unit 4 northern courtyard VDM Aug 2018 report
p4-12: 'Masonry not bonded to Australian Standards as highlighted.'Tie in brickwork 21. Unit 1 bed 1 external VDM Aug 2018 report
p1-24: 'No weep holes above window as required throughout including at external perimeter of ground floor units.'Install weep holes to AS3700 22. Unit 1 bed 1 external VDM Aug 2018 report
p1-25: 'No weep holes as required throughout including at external perimeter of ground floor unit's termite barrier.'Install weep holes to AS3700 23. Unit 1 bed 2 external VDM Aug 2018 report
p1-26: 'No weep holes as required throughout including at external perimeter of ground floor unit's termite barrier, moisture retention evident.'Install weep holes to AS3700 24. Unit 2 bed 2 external VDM Aug 2018 report
p2-06: 'No weep holes above window as required throughout including at external perimeter of ground floor unit's termite barrier.'Install weep holes to AS3700 25. Unit 2 bed 1 external VDM Aug 2018 report
p2-07: 'No weep holes above window as required throughout including at external perimeter of ground floor unit's termite barrier.'Install weep holes to AS3700 26. Unit 2 bed 1 external VDM Aug 2018 report
p2-08: 'No weep holes above window as required throughout including at external perimeter of ground floor unit's termite barrier.'Install weep holes to AS3700 27. Unit 3 courtyard VDM Aug 2018 report
p3-03: 'No weep holes as required throughout including at external perimeter of ground floor unit's termite barrier, moisture retention evident.'Install weep holes to AS3700 28. Unit 3 kitchen external VDM Aug 2018 report
p3-04: 'No weep holes installed above window.'Install weep holes to AS3700 29. Unit 4 entry external VDM Aug 2018 report
p4-06: 'No weep holes as required throughout including at external perimeter of ground floor unit's termite barrier, moisture retention evident.'Install weep holes to AS3700 30. Unit 4 courtyard VDM Aug 2018 report
p4-07: 'No weep holes as required throughout including at external perimeter of ground floor unit's termite barrier, moisture retention evident.'Install weep holes to AS3700 31. Unit 4 kitchen external VDM Aug 2018 report
p4-08: 'No weep holes installed above window'.Install weep holes to AS3700 32. Unit 1 passage VDM Aug 2018 report
p1-02: 'Passage door frame impact damage requires replacement.'Replace internal door steel frame 33. Unit 3 passage VDM Aug 2018 report
p3-05: 'Door frame striker plate not satisfactory evidence of poor workmanship. Requires new frame replacement.'Replace internal door steel frame 34. Unit 3 living area VDM Aug 2018 report
p3-07: 'Sliding door frame support damaged new replacement required.'replace damaged sliding door frame [no item 35 in complaint schedule] 36. Unit 1 passage to bed 1 VDM Aug 2018 report
p1-15: 'Door frame margin not installed to specifications requires min 10/12 mm. Remove and replacement required.'Replace internal door steel frame 37. Unit 2 bed 1 VDM Aug 2018 report
p2-11: 'Door frame margin not to specifications 10/12 mm. Requires removal replacement.'Replace internal door steel frame 38. Unit 2 bath 2 VDM Aug 2018 report
p2-14: 'Door frame installed incorrect hinge side. Requires removal and replacement as part of duct work not keyed in to Australian Standards.'Replace internal door steel frame 39. Unit 3 passage VDM Aug 2018 report
p3-06: 'Misalignment of door frames [x2] require removal and replacement as Highlighted.'Replace internal door steel frames install to proper alignment 40. Unit 3 passage VDM Aug 2018 report
p4-17: 'Misalignment of door frames [x2] require removal and replacement.'Replace internal door steel frames install to proper alignment 41. Unit 2 alfresco VDM Aug 2018 report
pp2-04, 2-33, 2-34: 'Incorrect wall position not to specifications. Requires rebuilding.'Remove and rebuild incorrectly located wall 42. Unit 4 bath 2 VDM Aug 2018 report
p4-16: 'Nib wall not installed, wall ties at incorrect location. Requires construction in correct position and tied in.'Remove wall ties, nib wall to be tie[d] in to AS3700 requirements 43. Unit 5 VDM Aug 2018 report
p5-01: 'Major reworks due to Incorrect positioned structural T Bar and masonry refer string line and as highlighted.'Cut slab to correct set out and install correct shelf angles 44. Unit 1 entry VDM Aug 2018 report
p1-17: 'Inspection service point not provided as per specifications. NOTE: Separation to Highlighted area due to impact damage. Requires rebuilding and tying in.'Rebuild inspection service point to specification including brick tie ins to AS 3700 45. Unit 1 entry VDM Aug 2018 report
pp1-21, 1-21(a): 'Entry brick work not to specifications. 1. Cavity bridged. 2. No installation of long reach solid bricks.
Requires rebuilding in local area.'Remove existing brickwork and reinstall as in accordance with AS3700 46. Unit 2 entry VDM Aug 2018 report
pp2-03, 2-03(a), 2-03(b), 2-23: 'Entry brick work not to specifications. 1. Cavity bridged. 2. No installation of long reach solid bricks.
Requires rebuilding in local area.'Remove existing brickwork and reinstall as in accordance with AS3700 47. Unit 4 kitchen VDM Aug 2018 report
p4-22: 'Contamination evident to cavity requires clean and removal of excess materials.'Remove debris and clean cavities 48. Western boundary wall VDM Aug 2018 report
p1-31: 'Damag[e] evident to parapet flashing to retaining wall. Requires replacement.'Replace parapet wall flashing 49. Unit 1 west parapet wall VDM Aug 2018 report
p1-27: 'Misalignment of masonry wall not to Australian Standards and Tolerances. Requires demotion and reconstruction.'Remove and reconstruct parapet wall 50. Unit 4 courtyard VDM Aug 2018 report
pp4-10, 4-11: 'Masonry perp not to Australian Standards as highlighted'Remove and reinstall brickwork with AS3700 per ends 51. Unit 4 bed 2 VDM Aug 2018 report
p4-18: 'Poor installation of return window, excess mortar and open cavity. Requires rebuilding in local area and frame replacement.'Remove window and excess mortar and rebuild wall with new frame 52. Unit 1 throughout VDM Aug 2018 report
pp1-03 – 1-05, 1-07 – 1-08, 1-10: 'Excessive concrete slurry to header brick course requires removal to [e]nsure no bond from suspended slab movement.'
p1-06: 'Excessive concrete slurry to header brick course requires removal to [e]nsure no bond from suspended slab movement critical in internal corners.'
1-09, 1-11: 'Excessive concrete slurry to header brick course requires removal to [e]nsure no bond from suspended slab movement exposed steel strapping also requires removal.'Clean concrete slurry from walls 53. Unit 2 throughout VDM Aug 2018 report
p2-05: 'Formwork not released or removed, requires removal and local repair to soffit.'
p2-05(a): 'Formwork not released or removed, requires removal and local repair to soffit and removal of excess concrete slurry.'
pp2-15 – 2-22: 'Excessive concrete slurry to header brick course requires removal to [e]nsure no bond from suspended slab movement. Requires removal.'Clear formwork and make good.
Clean concrete slurry from walls.54. Unit 5 bed 1 VDM Aug 2018 report
pp5-02 – 5-03: 'Incorrect slab and structural steel position and cast in base plate as Highlighted refer licensed surveyor report. Note Slab +44mm in height. Requires complete slab removal and replacement.'
pp5-04 – 5-05: 'Incorrect slab and structural steel cast in angles as highlighted refer licensed surveyor report. Note Slab +44mm in height.'
p5-06: 'Incorrect slab and structural steel cast in angles as highlighted refer licensed surveyor report.'
p5-07: 'Incorrect slab and structural steel cast in angles as highlighted refer licensed surveyor report. Note Slab +44mm in height.'
p5-08: 'Incorrect slab and omitted structural steel cast in angles as highlighted refer licensed surveyor report.'Remove slab and replace steel and base plate in correct location.
Replace lintels
Builder has obtained a variation to DA approving higher slab height.55. Unit 5 & 6 landing VDM Aug 2018 report
pp5-11, 5-13: 'Incorrect slab and structural steel position refer licensed surveyor report. Note Slab +44mm in height.'
p5-12: 'Incorrect slab and structural steel position and poor mitre connection as Highlighted refer licensed surveyor report. Note Slab +44mm in height.'Remove slab and replace steel and base plate in correct location.
Builder has obtained a variation to DA approving higher slab height.56. Unit 6 balcony VDM Aug 2018 report
pp6-01 – 6-05: 'Incorrect slab and structural steel cast in angles as highlighted refer licensed surveyor report. Note Slab +44mm in Height.'
p6-06: 'Incorrect slab and structural steel cast in angles as highlighted refer licensed surveyor report.'Remove slab and replace steel and base plate in correct location.
Replace lintels.
Builder has obtained a variation to DA approving higher slab height.57. Unit 6 bed 1 VDM Aug 2018 report
pp6-07 – 6-09: 'Incorrect slab and structural steel cast in angles as highlighted refer licensed surveyor report.'Remove slab and recast structural steel 58. Unit 1 bath 2 VDM Aug 2018 report
p1-12: 'Exposed open cavity due to defective brick works requires rebuilding in local area.'
p1-13: 'Exposed open cavity due to defective brick works requires rebuilding in local area. NOTE: Highlighted area is not keyed in to Australian Standards requires localized rebuilding.'Remove defective brick work and rebuild brick work to AS3700 59. Unit 1 bed 2 VDM Aug 2018 report
p1-16: 'Plumbing inspection point installed to incorrect location, poor workmanship to local area not keyed in as per required Australian Standards. Replace and tie in.'Remove defective brick work and rebuild brick work to AS3700 60. Unit 1 entry VDM Aug 2018 report
p1-17: 'Inspection service point not provided as per specifications. NOTE: Separation to Highlighted area due to impact damage. Requires rebuilding and tying in.'
p1-17(a): 'Inspection service point not provided as per specifications. NOTE: Separation to highlighted area due to impact damage and min mortar perp not to Standards.'Remove defective brick work and rebuild brick work to AS3700 61. Unit 2 entry VDM Aug 2018 report
p2-02: 'Inspection service plumbing point not provided as per specifications. Requires reconstruction.'
p2-02(a): 'Inspection service point not provided as per specifications cavity contaminated with excess masonry.'Remove defective brick work and rebuild brick work to AS3700
Clean cavity62. Unit 3 living area VDM Aug 2018 report
p3-01: 'Service inspection point installed to living area, to compliant to specifications. Requires relocation penetration bricked in and tied in.'
p3-01(a): 'Service inspection point installed to living area, to compliant to specifications, requires relocation and penetration bricked in.'Remove defective brick work and rebuild brick work to AS3700 63. Unit 8 store VDM Aug 2018 report
p3-02: 'Service inspection point penetration 2c too high, plumbing access point not serviceable. Plumbing service point requires relocation at this point. Relocation of gas service is also required. Requires reconstruction.'Remove defective brick work and rebuild brick work to AS3700
Relocation gas and plumbing service points64. Unit 3 living area VDM Aug 2018 report
p3-15: 'Penetrations to be rectified. Service plumbing installed to[o] low, ceiling height specified as highlighted.'Relocate plumbing to a height to permit installation of ceilings as specified
Repair wall penetrations65. Unit 4 living area VDM Aug 2018 report
p4-03: 'Service inspection point installed to living area, [not] compliant to specifications, requires relocation and penetration bricked in.'Relocate service inspection point to comply with specifications 66. Unit 7 store (amended by app) VDM Aug 2018 report
p4-04: 'Service inspection point penetration, plumbing access point not serviceable. Plumbing service point requires relocation at this point. Relocation of gas service is also required.'
p'4-04 & 4-05': 'Service inspection point penetration, plumbing access point not serviceable. Plumbing service point requires relocation at this point. Relocation of gas service is also required. Noted poor internal leaf penetration as highlighted.'
pp4-05(a), 4-05(b): 'Service inspection point penetration, plumbing access point not serviceable. Plumbing service point requires relocation at this point. Relocation of gas service is also required. Noted poor internal leaf penetration as highlighted also cavity contaminated with masonry.'Relocate service inspection point to comply with specifications
Relocate gas service
Clean cavity of mortar67. Unit 2 service drain VDM Aug 2018 report
p2-32: 'Service drain impact damage, requires new replacement.'Impact damaged drain requires replacing 68. Unit 3 bed 2 VDM Aug 2018 report
p3-14: 'Service plumbing installed to[o] low, ceiling height specified, plumbing requires realignment to provide correct ceiling height. Noted poor penetrations to be rectified.'Plumbing pipe to be relocated to allow correct ceiling height to be achieved.
Wall penetration to be repaired69. Unit 4 bed 2 VDM Aug 2018 report
p4-02: 'Service plumbing installed to[o] low, ceiling height specified, plumbing requires realignment to provide correct ceiling height. Noted poor penetrations to be rectified.'Plumbing pipe to be relocated to allow correct ceiling height to be achieved.
Wall penetration to be repaired70. Common Areas relocate carport down pipes VDM Aug 2018 report
pG-01: 'insufficient water proofing not compliant to Australian Standards. Requires excavation, parge, seal and layer backfill compaction.'
[duplicate to item 117 – confirmed by Applicants at hearing]Remove drains and footings and replace stormwater drains and footings in correct location 71. Unit 8 set down area VDM Aug 2018 report
p8-33: 'First course masonry not to Australian Standards as highlighted, require removal of walls and rebuild to Balcony and Living areas. Drain is not in correct location as specified.'
pp8-33(a), 8-33(b), 8-33(c), 8-33(d): 'First course masonry not to Australian Standards as highlighted, require removal of walls and rebuild to Balcony and Living areas.'Remove all incorrectly constructed walls and rebuild brickwork to AS3700
Relocate balcony drain to specified location72. Unit 1 exposed structural columns VDM Aug 2018 report
p1-01: 'Structural columns badly damaged galvanized due to extensive acid treatment. Requires Replacement.'
pp1-01(a), 1-01(c): 'Structural columns badly damaged galvanized surface coating due to heavy scouring and acid treatment.'Remove and replace structural columns 73. Unit 2 exposed structural columns VDM Aug 2018 report
p2-01: 'Structural columns badly damaged galvanized due to extensive acid treatment. Requires replacement.'
pp2-01(a), 2-01(b): 'Structural columns badly damaged galvanized due to extensive acid treatment.'
p2-01(c): 'Structural columns badly damaged galvanized surface coating due to heavy scouring and acid treatment.'Remove and replace structural columns 74. Unit 3 exposed structural columns VDM Aug 2018 report
p3-09: 'Structural columns badly damaged galvanized due to extensive acid treatment. Requires replacement.'Remove and replace structural columns 75. Unit 4 exposed structural columns VDM Aug 2018 report
p4-15: 'Structural columns badly damaged galvanized due to extensive acid treatment. Requires replacement.'
p4-15(a): 'Structural columns badly damaged galvanized due to extensive acid treatment and heavy scouring as highlighted.'Remove and replace structural columns 76. Unit 5 bed 1 VDM Aug 2018 report
p5-08: 'Incorrect slab and omitted structural steel cast in angles as highlighted refer licensed surveyor report.'Remove and replace existing suspended concrete slab and re-install in accordance with engineering plans and AS3600 77. Units 5 & 6 VDM Aug 2018 report
p5-09: 'Omitted structural support column to support suspended slab. Omitted Tee Bar to support suspended slab as highlighted incorrect shelf angle installed.'Install support column and T bar to engineers specification
Correct shelf angle to specification78. Units 5 & 6 VDM Aug 2018 report
p5-10: 'Omitted structural support T bar to support suspended slab as highlighted.'Install T bar to engineers specification 79. Unit 8 balcony VDM Aug 2018 report
p8-15, 8-15(a): 'Structural column connection to base plates not fully welded as per specifications, as highlighted.'Fully weld structural column to base plate 80. Unit 2 rear VDM Aug 2018 report
p2-35: 'Unprotected and sleeved cables moisture damaged. Requires re cabling.'Remove and replace communication cabling 81. Unit 2 bed 2 VDM Aug 2018 report
p4-01: 'Unsatisfactory and poor workmanship to low voltage cabling, requires relocation to service duct for future accessibility.'Relocate low voltage cabling to service duct 82. Unit 7 living area VDM Aug 2018 report
p7-11: 'Separation on masonry walls. Note Unit 7 & 8 requires demolition and replacement.'
p7-12: 'Separation on masonry walls.'Remove damaged walls and rebuild walls to AS[3]700 83. Unit 7 bed 2 VDM Aug 2018 report
pp7-26, 7-28: 'Masonry not keyed in to Australian Standards, Separation evident as highlighted. Requires rebuilding.'
p7-27: 'Masonry not keyed in or to Australian Standards, highlighted, requires rebuilding.'
p7-29: 'Masonry not keyed in to door framing or to Australian Standards as highlighted. Requires removal and replacement of frame inc rebuilding of masonry.'Remove incorrectly constructed walls and rebuild walls to AS[3]700. 84. Unit 7 linen (upper) VDM Aug 2018 report
p7-30: 'Masonry not keyed in to Australian Standards, Separation evident as highlighted. Requires rebuilding.'Remove incorrectly constructed walls and rebuild walls to AS[3]700. 85. Unit 7 linen (middle) VDM Aug 2018 report
p7-30(a): 'Masonry not keyed in to Australian Standards, Separation evident as highlighted. Requires rebuilding.'Remove incorrectly constructed walls and rebuild walls to AS[3]700. 86. Unit 7 built in robe VDM Aug 2018 report
p7-31: 'Masonry not keyed in to internal corner. Top course defective and no to Australian Standards, Separation evident as highlighted. Requires rebuilding.'Remove incorrectly constructed walls and rebuild walls to AS[3]700. 87. Unit 7 bed 1 VDM Aug 2018 report
p7-32: 'Masonry not keyed in, oversize perps not to Australian Standards as highlighted. Requires removal and replacement of frame inc rebuilding of masonry.'
p7-33: 'Masonry not keyed in to door framing not to Australian Standards, Separation evident as highlighted. Requires rebuilding.'Remove incorrectly constructed walls and rebuild walls to AS[3]700. 88. Unit 7 bed 1 VDM Aug 2018 report
p7-34: 'Masonry to lower window frame too low, exposing cavity. Window frame misaligned when installed, as highlighted.'
p7-34(a): 'Window frame misaligned when installed, as highlighted.'Remove window frame and block work and re-install on proper alignment 89. Unit 7 entry VDM Aug 2018 report
p7-35: 'Masonry not keyed in to Australian Standards, Separation evident as highlighted. Requires rebuilding.'Remove incorrectly constructed walls and rebuild walls to AS[3]700. 90. Unit 8 bed 2 VDM Aug 2018 report
P8-23: 'Masonry not keyed in to door framing not to Australian Standards, Separation evident as highlighted. Requires rebuilding.'
pp8-30, 8-31, 8-32: 'Reworks undertaken not keyed in to Australian Standards as highlighted.'Remove incorrectly constructed walls and rebuild walls to AS[3]700. 91. Unit 8 bed 1 VDM Aug 2018 report
p8-23(a): 'Masonry not keyed in to door framing not to Australian Standards, Separation evident as highlighted. Requires rebuilding.'Remove incorrectly constructed walls and rebuild walls to AS[3]700. 92. Unit 8 bed 1 VDM Aug 2018 report
pp8-25, 8-26, 8-26(a): 'Reworks undertaken not keyed in to Australian Standards as highlighted.'Remove incorrectly constructed walls and rebuild walls to AS[3]700. 93. Unit 8 bed 1 VDM Aug 2018 report
p8-27: 'Reworks undertaken not keyed in to Australian Standards as highlighted.'
p8-27(a): 'Unsatisfactory reworks undertaken not keyed in and separation evident not to Australian Standards including top door frame as highlighted.'Remove incorrectly constructed walls and rebuild walls to AS[3]700. 94. Unit 8 passage VDM Aug 2018 report
p8-28: 'Door frame not keyed in open cavity through as highlighted.'Remove incorrectly install[ed] door frame and reinstall to AS[3]700 95. Unit 7 hot water location VDM Aug 2018 report
p7-36: 'Recess incorrectly installed to specifications.'Install HWS recess as per design specifications 96. Unit 7 bed 1 VDM Aug 2018 report
p7-37: 'Reworks undertaken not keyed in to Australian Standards as highlighted.'Remove incorrectly constructed walls and rebuild walls to AS[3]700. 97. Unit 7 bath 1 VDM Aug 2018 report
p7-39: 'Window frame misaligned when installed, as highlighted, unsatisfactory masonry to lower sill.'Remove window frame and block work and reinstall on proper alignment 98. Unit 8 bath 1 VDM Aug 2018 report
p8-01: 'Window frame misaligned when installed, as highlighted, unsatisfactory masonry to lower sill.'Remove window frame and block work and reinstall on proper alignment 99. Unit 8 bed 2 VDM Aug 2018 report
p8-34: 'Window frame misaligned when installed, as highlighted.'Remove window frame and block work and reinstall on proper alignment 100. Unit 7 bath 2 VDM Aug 2018 report
p7-24: 'Exposed open cavity due to defective brick works requires rebuilding in local area.'Remove incorrectly constructed walls and rebuild walls to AS[3]700 101. Unit 7 bath 1 VDM Aug 2018 report
p7-25: 'Exposed open cavity due to defective brick works requires rebuilding in local area.'Remove incorrectly constructed walls and rebuild walls to AS[3]700 102. Unit 7 set down VDM Aug 2018 report
pp7-13, 7-19, 7-21: 'First course masonry not to Australian Standards as highlighted, require removal of walls and rebuild to Balcony and Living areas.'Remove incorrectly constructed walls and rebuild walls to AS[3]700 103. Unit 7 & 8 staircase landing VDM Aug 2018 report
p8-33(d): 'First course masonry not to Australian Standards as highlighted, require removal of walls and rebuild to Balcony and Living areas.'Remove incorrectly constructed walls and rebuild walls to AS[3]700 104. Unit 7 living area VDM Aug 2018 report
p7-15: 'Structural T bar no bearing to right side on masonry as highlighted.'Remove and relocate structural T bar with adequate support 105. Unit 8 living area VDM Aug 2018 report
p8-14: 'Structural T Bar misaligned and twisted, removal and replacement required.'Remove and relocated structural T bar in appropriate alignment 106. Unit 7 & 8 parapet wall VDM Aug 2018 report
p8-02: 'Structural T Bar indicating 33mm sag from the North End.'
p8-02(a): 'Structural T Bar indicating 33mm sag from the South End.'
p8-02(b): 'Structural T Bar indicating 44mm sag at centre point.'Remove and replace structural T bar 107. Unit 7 & 8 parapet wall VDM Aug 2018 report
pp8-04, 8-04(a), 8-04(b): 'Top masonry wall cut through requires remedial. Note wall exceeds specification on maximum height by 35 to 40mm.'Patch and make good cut through.
Builder has obtained a variation to DA approving higher slab height.108. Unit 8 throughout VDM Aug 2018 report
pp8-24, 8-24(a): 'Bond breaker installed throughout, Engineering report request NO bond breaker to be installed as class 2 specifications.'Remove bond breaker 109. Unit 7 roof frame VDM Aug 2018 report
p7-09: 'Timber joists distorted due to poor installation of tie down straps as highlighted. Various areas to timber framework not acceptable standard. Requires complete replacement.'
pp7-09(a), 7-09(b): 'Timber joists distorted due to poor installation of tie down straps as highlighted. Various areas to timber framework not acceptable standard.'
p7-10: 'Wall plate misalignment of 10mm.'
p7-16: 'Poor fixings to various tie down strapping and installed untreated timber as highlighted not to specifications.'
pp7-17, 7-20: 'Poor fixings to various tie down strapping, installed untreated timber and valley boards no marine ply not to specifications as highlighted.'
p7-38: 'Tie down rods not fixed to structural steel as specifications.'Remove and replace roof using materials specified and compliant with BCA and AS 110. Unit 8 roof frame VDM Aug 2018 report
p8-16: 'No marine ply not to specifications as highlighted.'
p8-17: 'Poor fixings to various tie down strapping, installed untreated timber not to specifications as highlighted.'
pp8-18, 8-19: 'Untreated timber not to specifications as highlighted.'
pp8-20, 8-21: 'Poor fixings to various tie down strapping, installed untreated timber not to specifications as highlighted.'
p8-22: 'Poor fixings to various tie down strapping, installed not to specifications as highlighted.'
p8-29: 'Tie down rods not fixed to structural steel as specifications.'Remove and replace roof using materials specified and compliant with BCA and AS 111. Unit 7 roof cover VDM Aug 2018 report
p7-01: 'String line indicate roof distortion, including end flashings, Complete roof cover has been poorly installed. Various areas that do not meet an acceptable standard, Requires complete roof replacement.'
p7-02: 'String line indicate roof distortion, including end flashings, Complete roof cover has been poorly installed. Various areas that do not meet an acceptable standard.'
p7-03: 'String line indicate roof distortion, including end flashings, Complete roof cover has been poorly installed highlighted area showing extreme misalignment and distorted sheeting allover. Various areas that do not meet an acceptable standard.'
p7-04: 'Roof distortion, Complete roof cover has been poorly installed highlighted area showing extreme misalignment and distorted sheeting allover. Various areas that do not meet an acceptable standard.'
p7-05: 'Level indicate distorted flashings. Complete roof cover has been poorly installed Highlighted area showing extreme misalignment.'
pp7-06, 7-07: 'Surface corrosion to various areas.'
p7-08: 'Surface corrosion to various areas. Poor flashing fitment.'Remove and replace roof 112. Unit 8 roof cover VDM Aug 2018 report
pp8-05, 8-10: 'Roof distortion, Complete roof cover has been poorly installed highlighted area showing extreme misalignment and distorted sheeting all over. Various areas that do not meet an acceptable standard.'
p8-06: 'Complete roof cover has been poorly installed Highlighted area showing extreme misalignment and distorted sheeting allover. Various areas that do not meet an acceptable standard.'
p8-07: 'Level indicating roof pitch installed too high, including end flashings lower tha[n] specified. Highlighted area showing extreme misalignment. Various areas that do not meet an acceptable standard.'
8-07(a): 'Level indicating roof pitch installed too high to parapet wall specified. Highlighted area showing extreme misalignment. Various areas that do not meet an acceptable standard.'
p8-08: 'Level indicating roof pitch installed too high to parapet wall specified. Highlighted area showing extreme misalignment of end flashing. Various areas that do not meet an acceptable standard.'
p8-09: 'Complete roof cover has been poorly installed Highlighted area showing extreme misalignment and distorted sheeting which is prevalent. Various areas that do not meet an acceptable standard.'
p8-12: 'Western air vents installed without separation. Requires re position to provide adequate area to seal.'Remove and replace roof 113. Unit 7 balcony VDM Aug 2018 report
p7-18: 'Structural column connection to T bar welded as per specifications [no exposed welds], as highlighted.'
pp7-22, 7-23: 'Structural column connection to base plates not fully welded as per specifications, as highlighted.'Grind ou[t] existing weld and re-weld in accordance with specifications. 114. Unit 7 & 8 VDM Aug 2018 report
p8-33: '[…] Drain is not in correct location as specified.'Relocate balcony drains to correct locations and create appropriate falls 115. Western post and panel VDM Dec 2018 report
pp2, 3, 8-17
Applicants' complaint schedule: 'Post and panel walls incorrectly installed, rotated and placing pressure [o]n western parapet walls'.Remove and re-erect panels as [per] engineering specification 116. Unit 1 & 2 VDM [April 2019] report
p3, plate 9-12
Applicants' complaint schedule: Lintels incorrect sizes. Breach AS1170Remove brick work and replace lintels 117. Central Car Park Area eastern and western walls [duplicate to item 70 – confirmed by Applicants at hearing] 118. Unit 1 bed 2, bed 2 & bath 2 VDM Aug 2018 report
Applicants' complaint schedule: 'Door frame not installed to specification'Replace internal door steel frame 119. Unit 2 bed 2, bath 2 & bath 1 VDM Aug 2018 report
Applicants' complaint schedule: 'Door frame not installed to specification'Replace internal door steel frame 120. Unit 3 bed 2, bath 2 & bath 1 VDM Aug 2018 report
Applicants' complaint schedule: 'Door frame not installed to specification'Replace internal door steel frame 121. Unit 4 bath 1, bath 2, bed 1 & passage VDM Aug 2018 report
Applicants' complaint schedule: 'Door frame not installed to specification'Replace internal door steel frame
Given the absence of an 'item 35' listed in the complaint schedule, and item 117 is a duplicate of item 70, the above table particularises 119 items of complaint.
In the course of the hearing and in closing submissions, the applicants have grouped the following complaint items which are of a similar nature:
(1)No parging to masonry wall, insufficient water proofing: items 1, 2, 3, 6;
(2)Damage/soiling to colour bond panels: items 7 and 8;
(3)Poor masonry workmanship: items 10 – 12 and 49;
(4)Bricks not keyed or tied in: items 13, 15 – 17, 20, 42, 58, 82 – 94 and 96;
(5)Inspection service points not installed to specification: 14, 19, 44, 59, 60 – 63, and 65 – 66;
(6)No weep holes: items 18, and 21 – 31;
(7)Door frame not installed to specification: items 32 – 34, 36 – 40, and 118 – 121;
(8)Incorrect set out of slab, slab located 44 millimetres higher than DA approval: 43, 54 – 57 and 76;
(9)Entry brick work not to specification: items 45 – 46;
(10)Window frame misaligned: items 51, 88 and 97 – 99;
(11)Excessive slurry, formwork not removed from slab: items 52 – 53;
(12)Service plumbing pipe incorrectly located: items 64, and 68 – 69;
(13)First course bricks laid on side: items 71, 102 – 103;
(14)Exposed structural columns: items 72 – 75;
(15)Missing T-bar/column: items 77 – 78 (incorrectly grouped with Group 8);
(16)Welding not fully undertaken: items 79 and 113;
(17)Exposed cavity: items 100 – 101;
(18)Deficiencies in T-bar or support: items 104 – 106;
(19)Poor workmanship in installing roof framing material: items 109 – 110; and
(20)Distorted and misaligned roof and flashing: items 111 – 112.
As to complaint items which allege a failure to be installed to specification, the applicants rely on the drawings approved by the City in the issue of the building permit.
There is a slight inconsistency in the submissions and evidence of the applicants as to which versions of the drawings they say are the approved drawings – on the one hand, their submissions refer to the approved drawings as contained in Exhibit 1, pp940 – 958 (paras 45 and 56 of applicants' closing submissions), and the evidence of Mr Parin that in his view the building permit was issued in respect of the Rev 3 Lalli drawings (T40).
On the other hand, the applicants submit, in their closing submission, that it is the plans referred to in the CDC that should be relied upon, that being the Rev 2 Lalli drawings (paras 38, 48, 51 – 52), although we note the errors in the applicants' closing submissions in para 48 (referring to a Lalli plan of '5 September 2017' which we take to have been intended as '5 September 2016') and paras 49 and 51 (referring to a Lalli plan of '20 November 2017' which we take to have been intended as '20 September 2017').
In any event, the applicants accept that neither version of the Lalli drawings said to have been approved by the City is part of the contractual plans (which the applicant says is the Rev 4 Lalli drawings), although they contend that where there is an inconsistency between the plans, it is incumbent on the builder to 'bring the Works proposed in the Contract and the Works approved in the [building permit] into harmony'.
The applicant also relies on the expert evidence of Mr van der Meer, a registered builder and a qualified engineer, to identify works which fail to comply with the approved drawings, relevant building codes and standards, or otherwise suffer from other workmanship issues.
The following reports by Mr van der Meer were admitted into evidence (which also form part of Exhibit 1):
(a)first report dated August 2018 (Exhibit 3);
(b)supplementary report dated December 2018 (Exhibit 4);
(c)second supplementary report dated April 2019 (Exhibit 5);
(d)third supplementary report dated May 2019 (Exhibit 6);
(e)fourth supplementary report dated October 2019 (Exhibit 7);
(f)fifth supplementary report dated November 2019 (Exhibit 8);
(g)Focus consulting report dated November 2018 (Exhibit 9); and
(h)revised costing report dated December 2021 (Exhibit 10).
The applicant also called Mr Ron Martinovich, the owner and sole director of Builders Steel (WA) Pty Ltd who supplied the steel columns and T-bars for the building works, to give oral evidence on the state of the steel columns and T-bars when delivered to the building site.
The applicants rely on Mr van der Meer's assessment of the costs of remedial works to support their application for a BRO in the amount of $532,828.87.
Finally, the applicant called Mr Parin to give oral evidence at the hearing.
At the conclusion of the hearing, the applicants filed their written closing submissions dated 4 July 2023 and reply to the builder's submissions dated 24 August 2023.
Builder's case
Save in respect of two complaint items, the builder denies that it has performed works in a manner which was not proper or proficient, or the works were faulty or unsatisfactory.
As to allegations that it failed to comply with drawings approved with the issue of the building permit, the builder accepts that some variations to the drawings occurred, but that all were undertaken with the express permission of Mr Parin; indeed, Mr Parin himself frequently requested the variations.
The builder disputes that all variations to the drawings had to be approved by the City, and asserts that only changes of a major or structural significance had to be the subject of an amendment to the building permit.
Further, the builder asserts that to the extent that the complaint items, as originally described in the schedule lodged with the Building Commissioner, failed to allege non-compliance with the building permit and approved drawings, the Tribunal does not have jurisdiction to determine those complaint items.
The builder also disagrees with the applicants' interpretation of the specifications of the contract as giving rise to deficient works, such as the finish of galvanised steel posts and the return of door frames.
Finally, to the extent that the builder was unable to complete the works due to the early termination of the contract, the builder contends that such works remain incomplete, rather than having been performed in a manner which was not proper or proficient, or were faulty or unsatisfactory.
The builder relies on the expert evidence of Mr Richard Machell, a registered builder, about the workmanship of the works, whether the works complied with relevant building codes or standards, and whether the works should be characterised as incomplete.
The builder tendered the following reports by Mr Machell (which also form part of Exhibit 1):
(a)report dated November 2018 (Exhibit 11); and
(b)report dated January 2020 (Exhibit 12).
The builder also relies on the expert evidence of Mr Peter Airey, a qualified engineer, as to some of the works, principally in relation to the retaining wall, and tendered Mr Airey's report dated December 2019 (Exhibit 13, also part of Exhibit 1).
The builder relies on the expert evidence of Mr Joshua Brooks, a qualified engineer, as to the performance of a T lintel (item 106), and tendered Mr Brooks' report dated 14 June 2019 (Exhibit 14, also part of Exhibit 1).
The builder also called Mr Glen Smith, the sole director of the builder, to give oral evidence at the hearing.
At the conclusion of the hearing, the builder filed written closing submissions on 11 August 2023.
Legislative framework
Building services complaint
Under s 5(1) of the Act, a person may make a complaint to the Commissioner about a regulated building service not being carried out in a proper and proficient manner or being faulty or unsatisfactory (building service complaint).
Where a building service complaint is accepted by the Commissioner, the Commissioner must cause an investigation of the complaint to be carried out by an authorised person(s), and following consideration of a report by the authorised person(s), the Commissioner may, relevantly, refer the complaint to the Tribunal for it to deal with under s 38 of the Act: s 7(1), s 9(1), s 10(1), s 11(1)(d) of the Act.
If a building service complaint is so referred, the Tribunal may deal with the complaint by making 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: s 38(1)(a) of the Act.
The Tribunal may otherwise decline to make a BRO: s 38(1)(b) of the 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 Act.
'Regulated building service'
'Regulated building service' is defined under s 3 of the 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 carrying the following definitions:
•'building service' is relevantly defined under s 3 of the Act as 'building work' (as defined in s 3 the Building Act 2011 (WA) (Building Act);
•'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 Home Building Contracts Act 1991 (WA) (Contracts Act);
•'home building work contract' is defined as having the meaning given under s 3(1) of the Contracts Act.
Building work
Under s 3 of the Building Act, the definition of 'building work' relevantly includes 'the construction, erection, assembly or placement of a building'.
Registered building service provider
Under s 3 of the Building Registration Act, 'registered building service provider' is defined as 'either a 'building service practitioner' or a 'building service contractor'.
Under s 11 of the Building Registration Act, only building service contractors are entitled to carry out a 'prescribed building service', which is relevantly prescribed in the Building Services (Registration) Regulations 2011 (WA) (Building Registration Regulations) to include 'builder work as a principal builder'.
In turn, relevantly, under the Building Registration Regulations:
• 'builder work' means, under reg 13, building work:
(a)for which a building permit is required; and
(b)with a value of $20,000 or more based on the value of the work estimated under Schedule 2; and
(c)carried out in an area of the State set out in Schedule 3;
(d)but does not include certain types of building work (which are not applicable to these proceedings).
•'principal builder' is defined under reg 3 as a person who carries out, or undertakes to carry out, the builder work for another person.
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 constructing a dwelling (part (a) of the definition) or placing a dwelling on land (part (b) of the definition).
Service not carried out in a 'proper' and 'proficient' manner or is 'faulty or unsatisfactory'
In the Macquarie Dictionary Online (as at 23 February 2024), 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'.
Evidence
There are significant differences in expert opinion in respect of some complaint items.
Whilst the individual evidence of each expert in respect of each complaint item will be assessed in Secondary Issue 4, given that the parties also challenge the general reliability and/or independence of some of the experts, the following determinations on these challenges will also be relevant in arriving at some of our findings at Secondary Issue 4.
Both parties rely on the following general principles as to admissibility of, and weight to be given to, expert evidence, as set out by Heydon JA in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; [2001] 52 NSWLR 705:
85.In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of "specialised knowledge"; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be "wholly or substantially based on the witness's expert knowledge"; so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded …
Mr van der Meer
Mr van der Meer has been a registered builder since 1987 and has practised as a structural engineer since 1970.
Mr van der Meer says that he started off doing residential work but now does mainly commercial work, and not many residential or domestic work.
The builder contends that Mr van der Meer's evidence fails to meet one of the touchstones of reliability of expert opinion evidence: impartiality (referring to the Australian Law Reform Commission's (ALRC) 'Background Paper 6 – Experts' (1999)).
The builder says that as Mr van der Meer was given photographs by Mr Parin, Mr van der Meer had taken 'as a given' that they demonstrated work that had not been performed in a proper or proficient manner, or was faulty or unsatisfactory.
The builder also criticises Mr van der Meer's habit of reaching conclusionary opinions without setting out the basis for such opinion, in particular, by failing to identify the Australian Standard against which the builder's work has been assessed.
Mr van der Meer recalls visiting the site at least 12 times, initially for an hour visit, then for 3 to 4 hours, and that the last visit lasted 25 minutes (T321) on a recent 'Sunday' (T384), with Mr Parin attending with him for about half the visits (T337).
In Mr Parin's oral testimony, he recalls attending the site with Mr van der Meer 'a dozen' times (T60).
Mr van der Meer states that he provided Mr Parin with his draft reports, although none of his opinions were subsequently changed (T338).
In Mr Parin's oral testimony, he states that the defective building works were identified by Messrs van der Meer and Parin 'collectively on site' (T60) and that he had made a list of the defects with Mr van der Meer (T60).
Mr Parin also says that he took the photographs that were referenced in Mr van der Meer's August 2018 report (T60).
While the photographs were not dated in the August 2018 report, Mr Parin says that he took most of the photographs 6 to 7 weeks (T61), or 6 to 8 weeks (T68), before August 2018, except the following:
(a)photograph at Exhibit 1, page 395 (5-01) – taken in April 2018 (T70); and
(b)photograph at Exhibit 1, page 253 (G-01) – taken in December 2017 (T71).
In the case of the photograph at Exhibit 1 page 496, Mr Smith testifies that it was taken before the contract was terminated (T196).
Mr van der Meer says that he did not take the photographs contained in his August 2018 report (T322) (although appears to contradict himself later when he says he was not sure whether they were taken by him or not (T406(2))), which photographs he 'verified' during his own inspection (T322, T323).
Mr Parin testifies that the annotations on the photographs were made by him, such as the red lines and red circles (T60), red arrows (T68), and magnification within the photographs (T61, T68).
As to his other reports, Mr van der Meer says that all the photographs in his April 2019 report were taken by Mr Parin (T324) and that the majority of the photographs in his December 2018 report were taken by himself, although some were given to him, which he then subsequently verified (T323).
Mr van der Meer acknowledges in oral testimony that some of the photographs were incorrectly labelled (T248(2)), with pages 7 – 01 to 7 – 08 (Exhibit 1, pp 417 – 424) being photographs of unit 8, not unit 7.
Based on the above, and our assessment of Mr van der Meer's evidence in respect of particular complaint items in Secondary Issue 4, we share the builder's concerns about the reliability of Mr van der Meer's evidence.
Firstly, we consider that the objectivity and independence of Mr van der Meer in forming opinions about whether the works were carried out in a manner which is proper or proficient, or is faulty or unsatisfactory, has been compromised by the earlier provision of photographs which carry at least an implied suggestion (and, in the case where photographs were marked or magnified by Mr Parin, an express suggestion) that such works have failed to meet such a standard.
The fact that Mr van der Meer later verifies the photographs at his site visits does not, in our view, remove the potential bias, as the earlier provision of the photographs may already have left an impression with Mr van der Meer.
Secondly, while attendance with a party at site visits, in and of itself, does not necessarily call into question an expert's independence, it is the influence potentially exerted by Mr Parin who made a list of defects 'collectively on site' with Mr van der Meer which has.
Thirdly, some of Mr van der Meer's proposed remedial works are considered extreme and disproportionate to other alternate remedies, which he has conceded in certain cases.
For example, as to the issue of the height of a first-floor slab being constructed 44 millimetres above approved levels (which the builder says is only 4 millimetres above tolerance levels) (items 43, 54 – 57), Mr van der Meer's proposed remedy of removing the slab was considered 'extreme and unwarranted' (T517).
In our view, this strict approach of proposing remedial works in order to put the applicants back in the same contractual position as if the defect had not occurred, without assessing whether alternative (and less expensive) remediation works may effectively produce the same outcome, undermines the independence of an expert whose primary duty is to assist the Tribunal in its determinations, rather than to advocate for a party.
Fourthly, we share the builder's concerns about Mr van der Meer's propensity to arrive at conclusions without properly setting out the basis for such opinions.
For example, in respect of items 71, 102 and 103, Mr van der Meer relies on an Australian standard that does not specifically support his opinion that bricks have to be laid on the horizontal, and instead draws the inference that brickmakers only test the 'F'UC' of bricks laid in a vertical direction without providing the basis for that inference (T63(2) – 65(2)).
Conduct of hearing or bringing of case
Costs orders have most commonly been made in circumstances of the type recognised in Chew and Director General of the Department of Education and Training [2006] WASAT 248; (2006) 44 SR(WA) 174 Chew) at [85], being circumstances where a party has conducted itself unreasonably or inappropriately or in such a way as to unnecessarily prolong the hearing, or where a matter has been brought vexatiously or for an improper purpose, or the proceedings constitute an abuse of process.
Application
In our view, the builder is, on both qualitative and quantitative measures, largely successful in its response to the claim.
Of the 119 items, in respect of which approximately $530,000 is claimed, we have made a BRO in relation to only four items amounting to $6,371 (items 41, 47, 69 and 116), of which two items were conceded by the builder.
Further, due to our reservations about the reliability of the applicants' only expert witness, limited reliance was ultimately placed on Mr van der Meer's evidence.
As stated above, the identification of the builder as the 'successful party' does not give rise to a prima facie entitlement to costs; however, the identification of the applicants as the 'unsuccessful party' is a relevant factor in determining whether it is fair and reasonable to reimburse an 'unsuccessful party' in the absence of any other basis for costs by an 'unsuccessful party'.
In this case, the applicants have complained of delays which they effectively say were caused by the builder, which may be interpreted as a complaint that such delays have unnecessarily prolonged the hearing.
In our view, however, delays caused by illnesses to representatives of parties and by counsel, whilst regrettable in their consequences of extending the timeframe for the resolution of proceedings, are unavoidable and do not amount to unreasonable conduct by a party.
As to the adjournment in January 2023, we were satisfied with relying on the information provided, and submission made, by Mr Jacobson as to Mr Smith's incapacity to attend the hearing due to contracting COVID-19, and so did not find it necessary to order that the builder file a medical certificate for Mr Smith.
Further, given the sheer volume and complexity of this case, we are satisfied that, even with thorough instructions to Mr Jacobson, the builder would have benefitted from Mr Smith's attendance in providing contemporaneous instructions to Mr Jacobson during examination of the three expert witnesses, both as to factual matters (given his own experience with working on the site) and as to matters of expert evidence (given Mr Smith's own building qualifications).
As to the hearing in July 2022, there were unavailability of witnesses for both parties which contributed to programming challenges for those hearing days.
Further, as it transpired, the hearing required four further hearing days beyond July 2022, which meant the hearing was always unlikely to have been concluded by 8 July 2022.
In addition, given the sheer number of complaint items, we do not consider earlier concession of the two complaint items by the builder would have made an appreciable saving of the time and cost to prepare for the hearing such as to amount to unreasonable conduct.
Finally, as to the failure to comply with the order for filing the builder's closing submissions, while we accept that it was the responsibility for the builder to ensure it received the transcript of proceedings on time (if it required transcript), ultimately we do not consider that the failure to comply with the original timeframe for closing submissions amounts to unreasonable conduct by a party, especially considering that there were 1,241 pages of transcript to review in preparing closing submissions, and 119 complaint items in respect of which to respond.
Although not required for preparing closing submissions, we were aided by references to passages of the transcript in the builder's closing submissions, given the volume of evidence adduced over the course of 8 days of hearing, and some inaccuracies on the reporting on evidence in the applicants' closing submissions (see, for example, paras 142 and 265 of the applicants' closing submissions, which appears inconsistent with T384 and T380(2) respectively).
We therefore do not agree that it was an unnecessary or unreasonable exercise to have waited for transcript before preparing closing submissions.
At most, the builder was optimistic in its original estimate of 2 weeks for filing closing submissions, which in the circumstances does not elevate to the standard of unreasonable conduct.
We also note that the applicants were themselves delayed in filing their closing submissions by 1 week and 3 working days, which they were expected to have applied for an extension of time if Mr Boni's medical appointments interfered with the filing of his submissions.
We are therefore not satisfied that there has been unreasonable conduct by the builder such that it would be fair and reasonable to make a costs order against the builder under s 87(2) or s 87(3) of the SAT Act.
Additionally, we do not consider that the power to make a costs order in relation to 'loss' under s 87(3) of the SAT Act can apply to loss of rental income for properties that were not in a position to be rented (as they have not been fully constructed) as at the date the loss is claimed.
In our view, the concept of 'loss' under s 87(3) of the SAT Act relates to actual loss which 'results' from the proceeding, rather than to a remote prospect of loss that depends on the occurrence of other factors, such as the completion of the construction of the units on the property.
This is supported by the construction adopted by the court in Questdale in linking the test of fairness and reasonableness of any costs order to the reimbursement of costs incurred.
We consider the applicants' claim for rental loss to be too remote, and, in any event, has already been claimed in the Supreme Court proceedings (Exhibit 1, p78).
We will therefore dismiss the applicants' application for costs and make no order as to costs.
Conclusion
For reasons set out above, we find that the builder has not carried out regulated building service in a proper or proficient manner or is faulty or unsatisfactory, and will make a building remedy order that the builder pay the applicants $6,371 in respect of complaint items 41, 47, 69 and 116, comprising the following amounts:
(a)$451 in respect of item 41;
(b)$140 in respect of item 47;
(c)$1,240 in respect of item 69; and
(d)$4,540 in respect of item 116.
Orders
The Tribunal orders:
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):
1.On or before 8 March 2024, the respondent must pay the applicants the sum of $6,371.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS K Y Loh, MEMBER
23 FEBRUARY 2024
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