Evans and Gumtown Pty Ltd Trading As Imperial Pools and Ors - [2020] WASAT 113

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   EVANS and GUMTOWN PTY LTD TRADING AS IMPERIAL POOLS & ORS [2020] WASAT 113
MEMBER:   MS KY LOH, MEMBER
DR A ZURHAAR, SENIOR SESSIONAL MEMBER

HEARD:   13 JULY 2020
DELIVERED          :   18 SEPTEMBER 2020
FILE NO/S:   CC 86 of 2020
BETWEEN:   ROSS FRANCIS EVANS
Applicant
AND
GUMTOWN PTY LTD TRADING AS IMPERIAL POOLS
First Respondent
GOLDIVY PTY LTD TRADING AS IMPERIAL POOLS
Second Respondent
HICOAST PTY LTD TRADING AS IMPERIAL POOLS
Third Respondent

Catchwords:

Building services complaint - Revocation of consent building remedy orders and making of monetary order - Whether consent orders were complied with - Whether leak from overflow pool wall has been sealed - Meaning of 'leak'

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 36(1)(a), s 36(1)(b), s 36(1)(c), s 41(2)(a), s 49, s 51, s 51(2), s 51(3)
State Administrative Tribunal Act 2004 (WA), s 60(2)

Result:

Applicant's application partially successful

Category: B

Representation:

Counsel:

Applicant	:	In Person
First Respondent	:	C D'Angelo
Second Respondent	:	C D'Angelo
Third Respondent	:	C D'Angelo

Solicitors:

Applicant	:	N/A
First Respondent	:	Main Legal Studio
Second Respondent	:	Main Legal Studio
Third Respondent	:	Main Legal Studio

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

R v Boynton (1984) 38 SASR 44

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

This is an application by a home owner Mr Evans (owner), under s 51 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) for an order for the respondents, who have traded as Imperial Pools (collectively Imperial Pools), to 'pay costs'.
It is alleged that Imperial Pools have not complied with orders made by the Tribunal on 4 October 2016, by consent of the parties, for certain remedial works to be completed (consent orders).
The owner contended that Imperial Pools have not sealed a leak in the eastern wall of his swimming pool, nor provided the requisite finish to the wall. He further contended that tiling on top of the eastern wall have not been repaired and that Imperial Pools have not made good areas affected by the remedial works.
Imperial Pools submitted that their repair to the leak was effective. They accepted that their applied finish to the wall was not of an acceptable standard. They submitted that they have discharged their obligation to repair the tiling on top of the pool wall.
The owner called expert witnesses Messrs Andrew Whittle, Michael Spartalis and Alan Gower in support of his application.
Imperial Pools called expert witnesses Messrs Brendan Berry and Tim Fitzpatrick in response to the application.

Background

Save for the consent orders and certain documents that predate the consent orders, no document has been tendered relating to the earlier proceedings (CC 1464 of 2016) under which the consent orders weremade.
The consent orders were made pursuant to a referral by the Building Commissioner to the Tribunal of a complaint regarding a building service or HBWC complaint.
Whilst this Tribunal has not been provided with a copy of the complaint, it would seem from the consent orders that three complaints were made, one of which was withdrawn in the consent orders, and the other two were the subject of orders for remedial works by theTribunal.
The consent orders were made on the following terms:
By consent of the parties and in full and final satisfaction of the matter, the Tribunal orders:
1.The Tribunal gives leave to the applicant to withdraw complaint number 3 and it is hereby withdrawn.
2.On or before 31 January 2017 the respondent shall undertake the following remedial works:
(a)complaint 1: Swimming pool, eastern wall leak in wall, repair left unfinished: the respondent shall seal the leak and provide a finish to the wall that is consistent and matches the finish on the rest of the wall so that evidence of the repairs is no longer visible;
(b)complaint 2: Swimming pool, eastern wall: repairs to tiling in two areas on top of pool wall were left unfinished: the respondent shall repair the defective areas of tiling so that evidence of the repairs is no longer visible; and
(c)make good all areas affected by the above remedial works.
Some background to the earlier proceedings were provided in the owner's Statement of Issues, Facts and Contentions (owner's SIFC).
Imperial Pools did not specifically dispute any particular facts in the owner's SIFC, although it objected to the owner's SIFC raising issues that did not arise from the consent orders.
This Tribunal considered it necessary, especially as it had not inspected the pool in question, to receive into evidence some factual background on the type and construction of the pool in order to assess whether the remedial works and finish complied with the consent orders and whether (and how) the works area could be made good.
The following factual background has been taken from the owner's SIFC and evidence given at the hearing.
In 2005, the owner engaged Consortium Builders Pty Ltd (builder) to build a new house. The builder engaged Imperial Pools as a subcontractor to supply and install the concrete pool shell.
Imperial Pools provided a quote dated 2 September 2005 for the supply and installation of a concrete shell with a blue quartz plaster internal finish. It was however clarified at the hearing by Mr Cleave Hubon, a representative for Imperial Pools, and agreed by the owner, that the end product was a cement rendered (rather than a blue quartz plastered) internal finish to the concrete with a coloured epoxy paint applied to it.
The owner alleged that after the pool shell was installed on about 15 September 2005, but before the epoxy paint finish was applied, mosaic tiles and flexible sealant joints were applied to the top of the overflow or infinity wall (overflow wall) on about 28 March 2009. Mr Hubon testified that the mosaic tiles were applied by the builder.
Taped strips, or banding, was applied to the interior of the overflow wall, which Imperial Pools advised the owner was for a concrete shrinkage crack. They advised that the banding might still let water pass through into the shrinkage crack, but that Imperial Pools would plug it from the outside of the pool.
The pool interior was then coated with an epoxy paint finish by 28 November 2009.
The owner alleged that there were significant 'leaks' on the outside of the overflow wall that coincided with the flexible sealant joints in the mosaic tiles on top of the overflow wall and the shrinkage crack banding on the inside of the overflow wall.
Further repair works were allegedly carried out by Imperial Pools in 2013 and 2015 with respect to the owner's complaints about the leaks.
Mr Hubon agreed that water was coming from within the pool through two small hairline concrete shrinkage cracks in the interior of the overflow wall. The crack injection specialist engaged by Imperial Pools to repair the cracks in 2017, Mr Fitzpatrick of Precision Systems Pty Ltd (Precision Systems), also testified that he observed water clearly leaking from the cracks before the injection.

Works undertaken pursuant to consent orders

Pursuant to the consent orders, Imperial Pools undertook rectification works on 30 January 2017 to the outside of the overflow wall. The owner alleged (which was not disputed by Imperial Pools) that between February and December 2017, Imperial Pools attempted to repair the leaks on 15 or more separate occasions.
Sometime in either November 2017 (according to Mr Fitzpatrick) or on 11 December 2017 (according to the owner), Mr Fitzpatrick was engaged to repair leaks in the overflow wall by injecting the exterior of the overflow wall with a low viscosity polyurethane injectable grout under pressure (crack injection). Precision Systems then coated over the repairs with a two part water based moisture barrier.
Between 16 to 20 December 2017, it is accepted by the parties that Imperial Pools pressure cleaned, patched and painted the outside of the overflow wall with Dulux 'Acratex' products. However, by midJanuary 2018 the Dulux 'Acratex' finish on the exterior overflow wall had begun to deteriorate and, in the owner's view, leaks had again appeared outside the overflow wall.
At some point, Precision Systems also returned to inspect the wall and considered that the final topcoat material did not bond sufficiently to the two repaired locations. They offered to return on site to recoat the section that had not bonded sufficiently, but were informed that the owner had refused access to the site.
Mr Hubon was similarly of the view that the paint had failed to bond due to the moisture barrier repelling the paint which had not been applied within a 48-hour period.

Have consent orders been complied with?

It does not appear to be in dispute between the parties that the leak in the eastern wall referred to in para 2(a) of the consent orders is the leak on the exterior of the overflow wall.
The owner contended that the leak is still present and the only way to rectify the leak is to fix the cracks on the interior of the overflow wall. Imperial Pools contended that the leak was fixed through the crack injection.
Imperial Pools also took issue with what they considered was an attempt by the owner to circumvent the consent orders by raising issues relating to workmanship over the original construction of the pool rather than confining his case to the workmanship of the repair works.
The application is made pursuant to s 51 of the BSCRA Act, which is engaged when a building remedy order (BRO) under s 36(1)(a) of the BSCRA Act to remedy a building service, or a HBWC remedy order under s 41(2)(a) of the BSCRA Act to do any work, has not been complied with, or has been complied with in part only.
On the basis that the owner is seeking 'costs' (for which a s 36(1)(b) BRO can be made for failure to comply with a s 36(1)(a) BRO) rather than compensation (which is the only monetary remedy that can be sought for the failure to comply with a HBWC remedy order), the Tribunal takes the application to be made:
(a)under s 51(2) of the BSCRA Act rather than s 51(3) of the BSCRA Act; and
(b)for costs under s 36(1)(b) of the BSCRA Act rather than compensation under s 36(1)(c) of the BSCRA Act.
The only orders that can be characterised as s 36(1)(a) BRO orders are the consent orders.
As the relevant issue before the Tribunal is whether Imperial Pools have complied with the consent orders, the Tribunal agrees with Imperial Pools' submission that it is the works required to be undertaken under the consent orders, not any underlying works that may have given rise to the remedial work, that set the parameters for the Tribunal's determination.
The pertinent element of remedial work the subject of dispute between the parties under para 2(a) of the consent orders is whether the leak in the wall has been sealed by Imperial Pools.
Imperial Pools did not dispute there is an outstanding element of remedial work under para 2(a) of the consent orders to provide the requisite finish to the overflow wall, although it contended that it was deprived of the opportunity to rectify the finish by the owner's refusal to allow further works to be completed by Imperial Pools.
As to para 2(b) of the consent orders, the owner claimed that Imperial Pools did not comply with the obligation to repair tiling on top of the overflow wall, which is refuted by Imperial Pools.
To the extent that there are outstanding remedial works to the finish to the overflow wall, there is an outstanding obligation to 'make good' all areas affected by remedial works as required under para 2(c) of the consent orders. In addition, the owner referred, in his request for a quote for rectification works from Mr Spartalis, to remedial areas which had not been 'made good' (which appeared predominantly to be paint spatter to the surrounding area).

Paragraph 2(a) of consent orders has the leak been sealed?

Expert Evidence

Mr Whittle, who was called by the owner, prepared a written opinion on whether works have been completed in a proper and proficient manner or in accordance with the Building Code of Australia, relevant Australian Standards or contract documents.
Mr Whittle has over 35 years of experience in the construction industry which included practising as a registered builder and designer and qualified carpenter and joiner, and also as a building inspector for the former Builders' Registration Board Western Australia and the Building Commission of Western Australia. In oral evidence, he also stated that he has built one or two concrete pools.
Mr Whittle stated in his report that he relied on information and photographs taken at the time of his inspection on 11 November 2019, and photographs and information forwarded to him by the owner after the inspection.
In his report, Mr Whittle stated that he observed what appeared to be white efflorescence marks on the overflow wall at the location of 'construction joints' at which the owner had complained experienced 'slow leaks'. At the hearing, Mr Whittle was happy to agree with Mr Berry that the construction joints were shrinkage cracks rather than construction joints.
Mr Whittle attached photographs purportedly taken at the time of his inspection, although it was date stamped '09 11 2019'.
Mr Whittle tested the presence of moisture through a moisture meter, which showed a markedly higher reading level at the positions of the shrinkage cracks (peaking at 94 out of 100) than elsewhere on the exterior of the overflow wall (which started at 32 out of 100). Mr Whittle considered that this high reading indicated the meter was in close proximity to the source of the 'leak'.
The photographs did not show, nor did Mr Whittle observe (as stated in his report or oral testimony), water in liquid form flowing from the overflow wall.
Mr Whittle did however consider in his report that there were visible signs of the 'slow leaks'. Mr Whittle clarified that when he spoke of 'leaks' in his report he was referring to moisture, rather than liquid flowing water. He also surmised that the 'leak' would eventually develop into liquid flowing water, although he did not like to guess as to the timeline for when that might occur.
Whilst Mr Whittle accepted that there was no running water flowing from the exterior of the overflow wall, only moisture in the wall, he contended that it did not mean there was no damage to the overflow wall. He considered that there would be premature rusting and deterioration of the structural steel members and concrete structure of the pool walls, contrary to the Building Code of Australia basic performance requirements.
Mr Whittle conceded that apart from the high moisture readings, he did not observe any structural problems or signs of structural problems.
Imperial Pools called Mr Berry to give evidence, who prepared two reports of his inspections on 16 July 2019 and 17 April 2020 respectively.
Mr Berry is a chartered engineer, in particular a hydraulics engineer who has worked with dams, canals, bridges and, most recently, swimming pools, and is a Fellow of the Institute of Engineers. He was a contributor to the original writing of the Australian Standards for swimming pools in the 1980s. He has been a consultant to the swimming pool industry and to individual contractors for 35 years or more, and has inspected thousands of pools.
Mr Berry gave oral evidence that he observed hairline cracks on the exterior of the overflow wall on his inspection on 16 July 2019, but no leaks.
He stated that all concrete retaining structures would have some form of cracking due to shrinkage in particles, and would therefore leak at some point. In his opinion, most water retaining structures would self-heal unless there was a large structural crack which allowed liquid water to flow. Whilst efflorescence might cause aesthetic problems, Mr Berry did not consider this a structural problem.
He considered a 'leak' to be liquid flowing water, rather than simply the existence of moisture, because concrete was porous and not a waterproof structure. In this case, he did not observe leakage on the overflow wall.
In his opinion, moisture readings reflected water vapours that came through the concrete and as such reading levels were of limited relevance to water retaining structures than in habitable buildings.
He did not dispute the higher moisture reading at the point near the hairline cracks as a measure of the presence of water vapour, due to water moving more easily through particles where there was a crack. He considered that the longterm effect was more efflorescence because the water vapours carrying calcium in suspension would come through to the outside of the wall, leaving calcium particles. In his view, it would usually seal up and self-heal (unless there was something widening the cavity such as earth tremors).
Both experts were taken to more recent photographs of the overflow wall taken by the owner in June 2020. They both agreed that that there was no liquid flowing water shown on the overflow wall but that there were signs of water vapour or moisture on the overflow wall.
Mr Berry disagreed with Mr Whittle that over time leakage by liquid water would develop.
Mr Berry also disagreed that rusting was an issue, as rusting would only occur if the concrete covers required over steel reinforcing bars under the Australian Standard on concrete pools were removed. He stated that the signs of rusting would be seen as brown spots on the concrete surface, which he did not observe in this case.
The owner challenged Mr Berry's sighting of the hairline cracks as the crack injection and paintwork had occurred at the end of 2017. Mr Berry stated that he saw the hairline cracks at the centre of the overflow wall, which might be a reference to the cracks in the upper part of the overflow wall near the replaced tiling sections, which the owner himself acknowledged and which the Tribunal has itself observed from the photographs submitted by the owner.
To the extent that there is any factual disagreement about the location or existence of cracks, it is not necessary for the Tribunal to resolve the disagreement, as the relevant issue in dispute is whether water was leaking, not whether water was leaking from hairline cracks.
Messr Fitzpatrick, Gower and Spartalis were called to give evidence about appropriate crack repair methods, which will be dealt with later in these reasons. Relevantly, all of them agreed that they did not observe water, in its liquid form, flowing on the exterior of the overflow wall during their respective inspections.

Is there a leak?

Whilst the owner asserted that water was leaking to the outside of the overflow wall following the crack injection (and indeed had been leaking continuously since then), on the strength of the observations of all five expert witnesses who testified that they did not observe liquid water flowing on the overflow wall, the Tribunal accepts the evidence of the experts.
The Tribunal finds that, following the crack injection in November or December 2017, water in its liquid form ceased flowing on the exterior of the overflow wall.
If the meaning of 'leak' is confined to 'liquid water escaping containment', there is a basis for finding that Imperial Pools have complied with that part of their obligation to seal the leak as such a leak no longer exists.
However, if the meaning of 'leak' extends to water in its vapour state, then, on Messrs Whittle's and Berry's evidence that water vapour was coming through the concrete, in particular, at the site of the shrinkage cracks, there is a basis for finding that Imperial Pools have not complied with that part of their obligation.

The ordinary meaning of 'leak' under the Macquarie Dictionary Online (current as at 18 September 2020) does not confine leakage to a liquid state, as seen in the following definition:
noun1. an unintended hole, crack, or the like by which fluid, gas, etc., enters or escapes.
Whilst the interpretation of the term 'leak' under the consent orders is one for which an expert may have a view, it is one, in the Tribunal's view, for which ordinary persons are 'able to form a sound judgment … without the assistance of witnesses possessing special knowledge or experience in the area': R v Boynton (1984) 38 SASR 44 at 46 - 7.
The meaning of 'leak' must be construed in the context of the characteristics of the structure the subject of the application. In this case, based on Mr Berry's evidence about the nature of concrete pools (with which Mr Whittle did not disagree), a concrete pool wall is susceptible to emission of water vapours due to the porous nature of concrete which is inherently susceptible to cracking due to shrinkage. It does not render the concrete pool structurally unsound. Further, it does not affect its purpose and use as a water retaining structure if ultimately it is able to self-heal; rather, it is only the leak of liquid water that indicates a structural problem.
In that context, the term 'leak' in the consent orders must be interpreted as the escape of liquid water rather than water vapours.
In light of the Tribunal's finding that liquid water is not flowing on the exterior of the overflow wall following the crack injection, the Tribunal is satisfied that Imperial Pools have complied with their obligation to seal the leak under the consent orders.

Appropriate method of sealing the leak?

Whilst it is unnecessary to determine the best method of sealing the leak, no current leak having been established on the evidence, the Tribunal makes the following observations of the evidence of the crack repair experts to support a further conclusion that the crack injection was effective in sealing the leak.
The owner called Mr Spartalis, a registered builder and registered architect, who has worked for 15 years for Conspar Building Services (Conspar), a company specialising in building and structural repair work. His primary role at Conspar is to scope out work, provide specification and project management, and is focussed on concrete remediation, waterproofing, and concrete cancer.
The owner also called Mr Gower, who works as the tiling manager for Ardex Australia Pty Ltd (Ardex) for Western Australia looking after tiling, remedial works or repairs (including concrete and crack repair) and waterproofing of swimming pools. He has a diploma in building designs, and is a member of ACRA (a concrete repair association) through Ardex. He has been dealing with concrete repair work for 15 years.
Imperial Pools called Mr Fitzpatrick, a qualified tradesperson and a National Association of Corrosion Engineers (NACE) internationally qualified coating inspector, who is the managing director of Precision Systems, a specialist remedial contracting business that focusses on remedial repairs of concrete and structures. He has an Associate Diploma in building construction, and has been in the industry for 25 years.
Mr Fitzpatrick was of the view that crack injection was an appropriate method for sealing the leak. He stated that the crack injection went to the source of the water leak and could swell under pressure up to 30 times its volume to seal up and provide a flexible non-permeable polyurethane seal within the crack.
In this case, Mr Fitzpatrick expressed his view that the polyurethane was effective in penetrating the crack as he saw water vapour or moisture being forced out of the crack with the pressure injection, and saw that water stopped leaking from the crack from the moment of injection.
Mr Gower gave evidence that he was instructed to prepare a solution for the pool shell to fix up surface cracks and prepared specifications for that solution. In turn, Mr Spartalis stated that he provided a costs estimate based on those specifications prepared by Mr Gower, and provisionally allowed for a structural engineer's approval.
When asked why the estimate included demolition works (when the specifications related to crack repair), Mr Spartalis stated that demolition works were required to get it to a clear concrete substrate so as to be '100% sure' that the work done would address all water leaks.
Mr Spartalis' estimate also allowed for 'repair of crack to both sides of wall (therefore double allowance)'.
When asked about the effectiveness of crack injection, Mr Spartalis was of the opinion that he did not believe the crack injection from the exterior of the overflow wall provided a longterm solution, as he considered that over time water might migrate to new areas and form new cracks.
It is apparent from the instructions to Messrs Gower and Spartalis, and the broad scope of works represented in Mr Spartalis' estimate, that they considered that it was part of their brief to address cracks on the exterior and interior surfaces of the overflow wall rather than specifically any leak from the overflow wall. To that extent, their focus was not on whether crack injection could be effective in sealing the leak, and consequently the Tribunal prefers Mr Fitzgerald's opinion about the appropriateness of crack injection as one directed to the issue of leakage.
Messrs Berry and Whittle also gave their views on methods to seal the leak.
Mr Berry considered that the crack injection was the best way to seal the leak, as it could penetrate concrete and provide a seal to reduce the amount of paths by which the water vapour got outside. Mr Berry stated that crack injections were usually applied from the outside of concrete pools.
Mr Whittle was of the view that crack injection would not stop water from migrating through the concrete and steel to the outside of the pool. He recommended installing a waterproof membrane suitable for swimming pools, although conceded he had no experience with waterproofing in swimming pools.
Given Mr Berry's qualification as an engineer and his considerable experience and expertise in concrete swimming pools in particular, the Tribunal prefers Mr Berry's opinion that crack injection is an appropriate method of sealing the leak.

Outstanding works under para 2(a) of the consent orders

Imperial Pools submitted that the further works required to provide the requisite finish to the overflow wall is set out in Mr Fitzpatrick's quote of 11 May 2020 (quote), which primarily provided for:
(a)the overflow wall to be hammer tested;
(b)the delamination to be removed;
(c)the overflow wall to be grinded and pressure-washed;
(d)the application of two coats of Maxseal Flex moisture barrier;
(e)the application of two coats of Aquasheen High Build Premium Pool Coating system; and
(f)clean up and all rubbish to be removed.
The quote quantified the cost of the further works at $4,325.50 plus GST (that is, $4,758.05).
The owner relied on Mr Spartalis' estimate, which did not quantify a cost for further works to the finish of the overflow wall. Rather, the estimate comprised a single sum for all pool waterproofing rectification works, including works beyond crack repair, such as the installation of tiling to the outside of the overflow wall, and the supply and installation of Duraquartz plaster to the internal surfaces of the pool (which Mr Spartalis conceded was an upgrade from the current epoxy paint coating).
Being satisfied that Mr Fitzpatrick is qualified in the field of remedial repairs to concrete structures, and in the absence of any contradicting opinions as to the scope of works or quantum of costs in the quote, the Tribunal accepts the quote as the scope of works, or the remedial costs of the works, required to comply with para 2(a) of the consent orders.

Paragraph 2(b) of consent orders – has defective areas of tiling been repaired?

The owner contended that para 2(b) of the consent orders was not complied with as there was still efflorescence, and there were cracks and leaks in the same areas as existed five years ago.
Paragraph 2(b) of the consent orders, however, does not deal with rectification works for cracks and leaks it simply required Imperial Pools to repair the defective areas of tiling (which, based on photographs of the tiling in the owner's SIFC taken in December 2015, had some individual tiles missing).
Further, on the evidence of Mr Berry, efflorescence is the process by which water vapours carry calcium through to the outside of a concrete wall. It is not evidence of defective tiling work.
Based on the photographs of the tiling taken in June 2020, there are no defects apparent in the tiling, and so the Tribunal is satisfied that Imperial Pools have complied with para 2(b) of the consent orders.

Paragraph 2(c) of consent orders 'make good'

The quote which encompassed the remaining scope of further works included 'clean up and all rubbish to be removed'.
Beyond the bare reference to 'damage and spatter to adjacent areas' and photographs of paint spatter or staining in the owner's SIFC, there was no further specification of the scope or costs of works required to comply with para 2(c) of the consent orders.
The Tribunal does not have any evidence on which to make any orders for costs of 'making good' paint spatter or staining, and is satisfied that the quote provides for 'making good', or the cost of 'making good', remedial areas, as required to comply with para 2(c) of the consent orders.

Conclusion should the Tribunal revoke paras 2(a) and 2(c) of the consent orders and make s 36(1)(b) orders?

For the reasons stated above, the Tribunal is satisfied that:
(a)part of para 2(a) of the consent orders has been complied with that is, that Imperial Pools have sealed the leak;
(b)part of para 2(a) of the consent orders has not been complied with that is, providing a finish to the wall that is consistent with and matches the finish on the rest of the wall so that evidence of the repairs is no longer visible;
(c)paragraph 2(b) of the consent orders has been complied with; and
(d)by reason of [97(b)] above, para 2(c) of the consent orders has not been complied with.
Given that the parties still appear to be locked in dispute over a pool which shell was constructed around 15 years ago, and Imperial Pools are not resisting an order for costs to be made under s 36 (1)(b) of the BSCRA Act, the Tribunal will revoke that part of para 2(a) of the consent orders referred to in [97(b)] above and para 2(c) of the consent orders, and make an order under s 36(1)(b) of the BSCRA Act for payment of the sum set out in the quote.
Applications for costs in relation to these proceedings have been made or foreshadowed by the parties, with the owner having filed documents supporting his application for costs. The parties agreed that these applications could be dealt with entirely on the basis of documents without the need for attendance by the parties under s 60(2) of the State Administrative Tribunal Act 2004 (WA). The Tribunal will invite Imperial Pools to file their submissions and documents on costs and allow responsive submissions and documents to be filed by the owner.

Orders

The Tribunal will make the following orders:
1.that part of para 2(a) of the consent orders dated 4 October 2016 in proceedings CC 1464/2016 requiring the respondents to 'provide a finish to the wall that is consistent with and matches the finish on the rest of the wall so that evidence of the repairs is no longer visible' be revoked;
2.paragraph 2(c) of the consent orders dated 4 October 2016 in proceedings CC 1464/2016 be revoked;
3.the respondents pay to the applicant the sum of $4,758.05 pursuant to s 36(1)(b) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA);
4.by 9 October 2020, the respondents are to file with the Tribunal and give to the applicant written submissions, and all documents on which they wish to rely which have not already been filed with the Tribunal and given to the applicant, in respect of the parties' respective applications for costs under s 49 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA); and
5.by 30 October 2020, the applicant is to file with the Tribunal and give to the respondents any written submissions in response to the respondents' written submissions, and any further documents on which he wishes to rely which have not already been filed with the Tribunal and given to the respondents, in respect of the parties' applications for costs under s 49 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA).

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS K Y Loh, MEMBER
18 SEPTEMBER 2020