FITZGERALD and MERCEDES GROUP PTY LTD - [2024] WASAT 102

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   FITZGERALD and MERCEDES GROUP PTY LTD [2024] WASAT 102
MEMBER:   MR D AITKEN, SENIOR MEMBER
HEARD:   26 AUGUST 2024
DELIVERED          :   17 SEPTEMBER 2024
PUBLISHED           :   17 SEPTEMBER 2024
FILE NO/S:   CC 338 of 2024
BETWEEN:   VICTORIA FITZGERALD
MATTHEW FITZGERALD
Applicants
AND
MERCEDES GROUP PTY LTD
Respondent

Catchwords:

Building Services (Complaint Resolution and Administration) Act 2011 (WA) - Building service complaint - Application for leave to review decision of original Tribunal to dismiss complaint item regarding the installation of windows - Criteria for the grant of leave to review - Whether there is a discernible basis for the decision - Whether the decision was wrong or attended with sufficient doubt - Whether the applicants would suffer a substantial injustice if leave to review not granted - Whether the Tribunal has the power to order the extension of a warranty

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5(1), s 11(1)(d), s 36(1), s 36(1), s 36(1)(a), s 36(1)(b), s 36(1)(c), s 38, s 38(1)(a), s 43, s 58, s 58(2), s 58(5)
State Administrative Tribunal Rules 2004 (WA), r 10

Result:

Leave refused and application for review dismissed

Category: B

Representation:

Counsel:

Applicants	:	Mr S Kikiros
Respondent	:	Mr M Lang

Solicitors:

Applicants	:	Hotchkin Hanly Lawyers
Respondent	:	Lang Litigation and Construction Law

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

Filimon and Rimmer [2013] WASAT 13
Fitzgerald and Mercedes Group Pty Ltd [2024] WASAT 33
Gemmill Homes Pty Ltd v Sanders [2018] WASC 179
Jetpoint Nominees Pty Ltd and Lee [2021] WASAT 10
Myran Holdings Pty Ltd and Bombak [2013] WASAT 20
Total Investments Pty and Rapley Wilkinson Pty Ltd [2015] WASAT 29

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The applicants, Mr Matthew Fitzgerald and Ms Victoria Fitzgerald made a building service complaint (Complaint) to the Building Commissioner against the respondent, Mercedes Group Pty Ltd on 9 November 2021 under s 5(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) concerning building work carried out by the respondent in the construction of a house in South Perth (the house), which was completed on 19 November 2015.
The Building Commissioner referred the Complaint to the Tribunal on 30 September 2022 under s 11(1)(d) of the BSCRA Act.
Item 5 of the Complaint was stated as 'Window Warranty – Windows were installed incorrectly resulting in noticeable "humps" in double glazing spacers, which is visually obvious and could result in escape of the contained argon gas in the future along with condensation build up. Builder has replaced 7 glass panels' (window complaint).
During the conduct of the proceeding in the Tribunal building remedy orders were made by consent in respect of some of the complaint items and one complaint item was withdrawn.
The remaining eight complaint items, which included the window complaint, were determined by the Tribunal constituted by Member King, a legally qualified full-time member and Sessional Member Woodforde, a builder (original Tribunal) after a final hearing on 18 and 19 March 2024 (final hearing).
The original Tribunal made orders on 22 March 2024 concerning the remaining complaint items for the reasons delivered orally on 22 March 2024 and subsequently published on 24 April 2024 in Fitzgerald and Mercedes Group Pty Ltd [2024] WASAT 33 (written reasons for decision).
Relevantly, order 2 of the orders made by the original Tribunal on 22 March 2024 dismissed the window complaint (dismissal order).
The applicants have made an application to the Tribunal under s 58 of the BSCRA Act for an 'internal review' of the original Tribunal's decision to make the dismissal order (review application).
Section 58(5) of the BSCRA Act provides that a review application cannot be made unless the Tribunal gives leave for review.
The Tribunal for the determination of whether leave will be granted is constituted by legally qualified Senior Member Aitken, in accordance with the requirements of s 58(5) of the BSCRA Act.
For the reasons which follow, I have decided not to give leave to the applicants for review of the dismissal order and, accordingly, I will dismiss the review application.

Hearing of the application for leave to review

The application for leave to review was heard on 26 August 2024 (leave hearing).
The applicants required an extension of time to make the review application, which had been made out of time due to the applicants seeking legal advice after they received the written reasons for decision and had obtained the transcript of the final hearing. The respondent did not oppose an extension of time being granted and I made an order pursuant to r 10 of the State Administrative Tribunal Rules 2004 (WA) that the time for commencement of the proceeding is extended until the date on which the review application was made.
During the leave hearing I took into evidence the transcript of the final hearing (final hearing ts), the hearing book which was taken into evidence during the final hearing (hearing book) and two video recordings (videos) which were taken into evidence during the final hearing.
Each party filed written submissions prior to the leave hearing and during the leave hearing, counsel for the applicants, Mr Kikiros of Hotchkin Hanly Lawyers and counsel for the respondent, Mr Lang of Lang Litigation and Construction Law both made oral submissions.

The criteria for the grant of leave to review

As noted by the Tribunal (constituted by Parry J) in Jetpoint Nominees Pty Ltd and Lee [2021] WASAT 10 at [38], the principles concerning whether leave should be granted, under s 58(5) of the BSCRA Act, to apply for an internal review, under s 58(2) of the BSCRA Act, of an order made by the Tribunal under s 38 or s 43 of the BSCRA Act are well established.
The main considerations are as stated by the Tribunal in Myran Holdings Pty Ltd and Bombak [2013] WASAT 20 (Myran Holdings) at [8], based on the discussion in Filimon and Rimmer [2013] WASAT 13 (Filimon). However, the range of considerations is not closed, and other matters may be relevant in a particular case.
In Myran Holdings at [8] the Tribunal stated:
The following principles can be gleaned from the discussion of the applicable criteria for the grant of leave to review under s 58(2) of the [BSCRA] Act as discussed in [Filimon]:
1)It is necessary to show that the decision of the original Tribunal was wrong or attended with sufficient doubt.
2)It must be shown that if leave were not to be granted, the applicant would suffer a substantial injustice.
3)It will normally not be sufficient that the decision appealed from is apparently wrong or attended with doubt. Something more will need to be shown, such as that there is a significant question of law to be considered, or some other feature, which requires the consideration of the Tribunal to avoid a substantial injustice of (sic) leave were not to be granted.
4)The decisions of the original Tribunal are not to be read minutely and finely with an eye keenly attuned to the perception of error.
5)A broad view should be taken of all the material before the original Tribunal, and this Tribunal should be slow to grant leave to review or to allow reviews except in cases where, clearly, there is no discernible basis for the decision or, for example, where fundamental rules of natural justice have been breached.
6)Leave may be granted in respect of only some and not other grounds of the proposed review.
7)Having regard to the objects of the Tribunal, and because any review is by way of a hearing de novo, there is all the more reason to be particularly discerning about whether sufficient doubt exists to open the possibility of leave being granted.
8)In considering challenges to the weight of evidence, regard must be given to the expertise of the members of the original Tribunal.

The original Tribunal's reasons for dismissing the window complaint

The original Tribunal's reasons for dismissing the window complaint were set out in the written reasons for decision at [80] to [86] as follows:
80The Tribunal does not have the power to order the extension of a warranty as a matter of law as sought in complaint item 5.
81The Tribunal is not a court, and it does not have any inherent powers and it only has the powers to make orders in accordance with the enabling legislation which is s 36 of the Act which I have already referred to. Accordingly, the complaint item is dismissed. However, if the Tribunal was satisfied that the Tribunal had jurisdiction, then the Tribunal would not have made an order for the following reasons:
(a)as a matter of procedural fairness, the Tribunal is disinclined to allow amendment to the complaint item as the respondent was not provided with any notice of the application to amend the complaint.
82The Tribunal accepts the evidence of Mr Peterson who gave his evidence in a straightforward manner. The Tribunal finds that in the absence of available windows with exactly the same colour or finish of spacers, the Tribunal is not satisfied that the building service in relation to the colour and finish of the spacers was not carried out in a proper and proficient manner or is faulty or unsatisfactory in relation to that issue.
83Mr Peterson did not examine all windows in the house. He predominantly looked at large windows.
84The Tribunal accepts the evidence of Mr Peterson that the windows which depicted a hump at the time of inspection have been replaced. The Tribunal had regard to the matter of Total Investments and Rapley Wilkinson, which held that non‑compliance with manufacturer's recommendations does not in itself render the work defective or faulty or unsatisfactory. The Tribunal finds that the respondent has not breached the Act merely by departing from the manufacturer's recommendations.
85No expert evidence was provided of catastrophic failure being likely or imminent for any of the remaining windows. The experts gave evidence that the product at the time of inspection had been performing well. It was agreed that the windows have exceeded normal warranty periods.
86The Tribunal is not satisfied, due to a lack of evidence, that the building service as it relates to the remaining windows the subject of the complaint were not carried out in a proper and proficient manner or are faulty or unsatisfactory and we confirm that the complaint item is dismissed.
(footnotes omitted)
I understand the statement of the original Tribunal at [84] of the written reasons for decision that they 'had regard to the matter of Total Investments and Rapley Wilkinson', to be a reference to the respondent's submission set out in [78] of the written reasons for decision which is as follows:
The respondent referred to the matter of Total Investments Pty Ltd and Rapley Wilkinson Proprietary Limited where the applicant lodged a claim against the builder claiming that the installation of one product as opposed to another product was building work which was not carried out in a proper and proficient manner, or which was faulty and unsatisfactory. In that case the Tribunal held at [32]:
… We do not accept that the legislation requires that for a building service to be carried out in a proper and proficient manner, builders must comply with all manufacturer's recommendations or guidelines. To reach such a finding would elevate manufacturers recommendations to a status of legislation rather than what they are, recommendations. In our view, manufacturer's recommendations are able to be departed from, provided that builders continue to act in a proper and proficient manner[.]

The applicants' submissions

The applicants contend that leave to review the dismissal order should be given for the following reasons.
The applicants submit that it was not open to the original Tribunal to rely on the decision in Total Investments Pty and Rapley Wilkinson Pty Ltd [2015] WASAT 29 (Total Investments) as instructive and binding authority having regard to the facts of this case.
The applicants submit that an important legal question emerges for consideration, being 'whether the failure by a builder to comply with mandatory installation requirements (and not simply guidelines) constitutes work (the subject of a building service) that has not been carried out in a proper and proficient manner or is faulty or unsatisfactory, for the purposes of the [BSCRA] Act'.
The applicants submit that in Total Investments there was no allegation of faulty or unsatisfactory work in relation to the installation of the product (steel wall cladding) whereas in this matter there was an allegation that the installation of the windows is faulty or unsatisfactory due to the 'placement and material of setting blocks' in the installation of the windows.
The applicants submit that in Total Investments the manufacturer's recommendations were expressed to be a 'guide only' whereas in this matter the manufacturer's installation instructions for the windows were expressed in 'the construction contract' as mandatory requirements. The applicants have not identified the provision in the construction contract to which they refer, but it appears to be a reference to item D2 in the Master Specification, which forms part of the contract documents, which are in the hearing book. That item states as follows:
D2ALUMINIUM WINDOWS
Aluminium windows and doors of the sizes and configurations as shown on the Drawings shall be manufactured and installed in accordance with the relevant Australian Standards and the manufacturers instructions and shall be the type and finish as stated in the Addenda.
The applicants submit that at the final hearing they presented evidence of the incorrect installation of the windows and 'adduced the mandatory installation requirements' for the windows. The applicants refer to a document in the hearing book titled 'ThermoTech TPS Insulating Glass Units Technical Specification for Glazing' (manufacturer's installation specification) which they say applied to the installation of the windows. That document provides:
Insulating Glass Units shall be installed in accordance with the glazing requirements of AS/NZS 4666:2000 unless otherwise specified.
…
The minimum width of each setting block shall be not less than 3mm greater than the unit and setting blocks shall be located to equally support all panes of glass and shall be fixed to prevent displacement during installation and service.
The size, number and location of setting / location blocks and distance pieces shall be in accordance with AS/NZS 4666:2000.
The applicants say that at the final hearing they submitted evidence of non-compliance with those installation requirements.
The applicants also submit that they did not amend their relief sought in relation to the windows in the way the original Tribunal considered in its decision to make the dismissal order. The applicants contend that both prior to and at the final hearing they sought a 'building remedy work order' in relation to the windows, not merely 'an extension of warranty'.
The applicants refer to the considerations stated in Myran Holdings and contend that leave should be granted for review of the dismissal order for the following reasons:
1.The decision of the original Tribunal to make the dismissal order was wrong or attended with sufficient doubt, including because there is a significant question of law to be considered. The applicants say that question of law is whether the failure by a builder to comply with mandatory installation requirements (and not simply guidelines) constitutes a building service that has not been carried out in a proper and proficient manner or is faulty or unsatisfactory for the purposes of the BSCRA Act; and
2.If leave is not granted, the applicants will suffer a substantial injustice having regard to the risk of windows failing and the cost for which the applicants will be liable to replace each window if they fail. The applicants say that there are a total of 135 windows installed in the house, of which seven were replaced by the respondent, and 33 other windows have developed a hump. The applicants say that, as all the 135 windows are believed to be systematically installed not in accordance with the manufacturer's mandatory installation instructions, the remaining 95 window units continue to carry a real and material risk of premature failure due to installation errors. The applicants say that the cost to rectify these installation defects could extend to a range of $35,000 (to refit all the windows) up to $125,000 (to replace all the windows). The applicants have not provided details of how they have calculated those monetary amounts.
I note that in the revised PBRO to which I refer at [34]2 and [37] below the Building and Energy inspector, Mr Chadbund refers to there being about 70 windows in the house and that during the final hearing the applicant, Mr Fitzgerald stated that there are 70 windows in the house (final hearing ts page 178, 19 March 2024). That figure of 70 windows contrasts with the figure of 135 windows referred to in the applicants' written submissions, but it is not necessary for me to resolve that difference for the purposes of these reasons. In these reasons I will use the phrase 'remaining windows' to refer to all the windows in the house other than the seven windows which were replaced by the respondent prior to the applicants making the Complaint.

The respondent's submissions

The respondent submits that leave to review the dismissal order should not be given and the review application should, therefore, be dismissed for the following reasons:
1.The applicants have failed to show that the decision of the original Tribunal was wrong or attended with sufficient doubt.
2.The original Tribunal was not satisfied, due to a lack of evidence, that the building service as it relates to the remaining windows, the subject of the window complaint, was not carried out in a proper and proficient manner or is faulty or unsatisfactory; as stated at [86] of the written reasons for decision.
3.The onus was on the applicants to put before the Tribunal sufficient evidence of the allegations made in respect of the installation of the windows, which they failed to do. There was no or no adequate evidence that the remaining windows have been installed in a manner which is not proper and proficient or was faulty or unsatisfactory.
4.Whilst the applicants have not established that the decision of the original Tribunal was apparently wrong or attended with sufficient doubt, there is also no 'significant question of law' to be considered, or some other feature, which requires consideration to avoid a substantial injustice if leave is not granted for review of the dismissal order.
The respondent submits that the approach of the applicants in seeking leave to review the decision of the original Tribunal to make the dismissal order is essentially to ask the Tribunal for the opportunity to have 'another go' at presenting its claims in respect of the windows. The respondent says that the applicants had more than an ample opportunity to put before the original Tribunal any evidence (including expert evidence) required to support their allegation that the remaining windows were installed in a manner which was not proper or proficient or was faulty or unsatisfactory. The respondent says that the applicants failed to present to the original Tribunal any sufficient evidence from which it could be concluded that any of the remaining windows have been incorrectly installed or that there has been or is likely to be any failure of any of the remaining windows.

The respondent says that the reference by the original Tribunal to the decision in Total Investments was 'appropriate'.

The expert evidence at the final hearing regarding the windows

There were four witnesses who gave expert evidence during the final hearing regarding the windows. They were:
1.Mr Ian Pettersson (whose family name is incorrectly spelled as 'Peterson' in the written reasons for decision). Mr Pettersson is a director of Westec Doors and Windows Pty Ltd (Westec), who has over 33 years of experience in the construction industry in the installation of windows. He signed a witness statement which is in the hearing book.
2.Mr Andrew Chadbund (whose family name is incorrectly spelled as 'Chadbound' in the written reasons for decision). Mr Chadbund is an inspector with the Building and Energy Division within the Department of Mines, Industry Regulation and Safety who inspected the complaint items on 1 March 2022 and prepared a proposed building remedy order dated 18 March 2022 (initial PBRO) and a revised proposed building remedy order dated 13 May 2022 (revised PBRO), which are in the hearing book.
3.Mr Stephen Schultz (whose name is incorrectly spelled as 'Steven Schulz' in the written reasons for decision). Mr Schultz is a registered builder who inspected the complaint items on 14 June 2023 and prepared a report on behalf of Building Consultancy Inspections (BCI) which is in the hearing book.
4.Mr Nicola (Nick) D'Ercole who is a registered builder and a director of the respondent. He signed a witness statement which is in the hearing book.
In his witness statement Mr Pettersson states that he was approached by the respondent in October 2020 to undertake an inspection of the windows at the house and he also undertook a later inspection in December 2020. During those inspections he identified that there was a small bulge in the double-glazing spacer at the bottom of the large double-glazed fixed windows. Mr Pettersson says that he believes that this was caused by the glazing being incorrectly installed for these windows. He says that the respondent engaged Westec to replace seven windows where there was a bulging of the spacer bar at the bottom of the windows. Mr Pettersson says that the remaining windows were satisfactory and there was no requirement for any remedial works to the other windows.
In the initial PBRO Mr Chadbund states that the window complaint relates to the double-glazed windows and doors in the house, of which seven panels had been replaced to the kitchen and dining area. In his comments he says that the original issue related to the incorrect spacer installation at the base of the glazed units, resulting in the heavy glazed units moving and becoming ineffective. He says the complainant (that is, the applicants) is concerned that over time other windows and doors could have similar problems and has requested the respondent to extend the warranty period for a further five years. Mr Chadbund comments that in his considered opinion, whilst acknowledging that there was an issue regarding the seven replaced panels, the remainder of the windows and doors in the house are performing in a satisfactory manner and in the absence of evidence that can clearly demonstrate that the respondent's work is faulty or unsatisfactory he recommended that the window complaint be dismissed.
In the revised PBRO Mr Chadbund states that in response to the initial PBRO the complainant had requested that an order be made for a window contractor to attend site to inspect each window for compliance with the installation method requirements and complete remedial works where necessary. Mr Chadbund notes that the complainant contends that 'an indeterminate number of remaining windows (there are around 70 in the house) have very likely also been installed incorrectly'. Mr Chadbund then comments that from the information provided, and at the site inspection, no evidence has been forthcoming to suggest the remaining windows apart from the seven panels that were remedied are in fact faulty. Mr Chadbund concludes his comments by saying that for those reasons his recommendation remained unchanged that the window complaint be dismissed.
In his report, in relation to the window complaint, Mr Schultz states that it was reported by Mr Fitzgerald that bumps (humps) appeared in the seal between the double glazing of some windows and that it appears it was discovered that the spacer blocks were not supporting the glazing and that these bumps occurred due to the spacers supporting the seals only which was determined to be an installation defect by the respondent's contractor. Mr Schultz concludes his comments in respect of the window complaint by saying that this may require further investigation.
At the commencement of the second day of the final hearing Member King noted that in the window complaint the applicants stated that the windows were installed incorrectly and that the remedy that they were seeking was that the warranty be extended. Member King asked Mr Fitzgerald what his position was on that day regarding the window complaint. Mr Fitzgerald said that his position was that there is evidence to show that all the windows have been installed clearly in contravention of the very specific window installation instructions from the manufacturer. Counsel for the respondent, Mr Lang submitted that to the extent that there had been incorrect installation of seven windows that had been remedied by the respondent, but there is not evidence of the same fault or a non-compliance with the manufacturer's installation specification in respect of the balance of the windows (final hearing ts 177 ‑ 182, 19 March 2024).
Mr Pettersson, Mr Schultz, Mr Chadbund, and Mr D'Ercole were then called to give concurrent evidence regarding the window complaint (final hearing ts 182 ‑ 262, 19 March 2024). During that evidence the videos were played for the Tribunal members and the witnesses to view.
During that evidence, Mr Pettersson stated that he cannot say whether the remaining windows have been installed correctly or not and Mr D'Ercole, Mr Schultz and Mr Chadbund all agreed with Mr Pettersson (final hearing ts 236 ‑ 237, 19 March 2024).
Furthermore, Mr Pettersson, Mr D'Ercole, Mr Chadbund and Mr Schultz all stated that they did not consider it necessary to replace any of the remaining windows (final hearing ts 257 ‑ 259, 19 March 2024).

Consideration

Section 38(1)(a) of the BSCRA Act provides that the Tribunal may make a building remedy order if the Tribunal is satisfied that the regulated building service that is the subject of a building service complaint which has been referred to the Tribunal by the Building Commissioner has not been carried out in a proper and proficient manner or is faulty or unsatisfactory.
If the Tribunal forms that opinion the Tribunal is required to make a building remedy order and it must then exercise the discretion conferred in s 36(1) of the BSCRA Act to make a particular order in the form of s 36(1)(a), (b) or (c); Gemmill Homes Pty Ltd v Sanders [2018] WASC 179 (Gemmill Homes) at [133] and [134]. The first type of building remedy order is a work order. The second is a payment order for the reasonable costs of remedying the building service. The third is a payment order for compensation for the failure to carry out the building service in a proper or proficient manner or for faulty or unsatisfactory building work.
If the Tribunal does not form the requisite opinion under s 38(1)(a) then under s 38(1)(b) of the BSCRA Act it may decline to make a building remedy order, in which case the Tribunal usually makes an order that the complaint is dismissed.
The written reasons for decision were not as clear as they might have been in respect of the decision of the original Tribunal to make the dismissal order of the window complaint.
However, in my view, there is a discernible basis for the decision to dismiss the window complaint which was:
1.first, that the original Tribunal did not have the power to make an order extending a warranty;
2.secondly, 'as a matter of procedural fairness, the [original] Tribunal is disinclined to allow amendment of the complaint item as the respondent was not provided with any notice of the application to amend the complaint'; and
3.thirdly, that the original Tribunal was not satisfied, due to a lack of evidence, that the building service in respect of the installation of the remaining windows was not carried out in a proper or proficient manner or is faulty or unsatisfactory.
The original Tribunal's view that it did not have the power to order the extension of a warranty in respect of the remaining windows is correct. Section 36(1) of the BSCRA Act does not provide for such an order to be made. However, if the original Tribunal had formed the opinion that the installation of the remaining windows was not carried out in a proper and proficient manner or was faulty or unsatisfactory it would have been required to exercise its discretion to make one of the types of building remedy orders set out in s 36(1) of the BSCRA Act; Gemmill Homes at [134].
Regarding the statement by the original Tribunal in [81(a)] of the written reasons for decision that 'as a matter of procedural fairness, the [original] Tribunal is disinclined to allow amendment of the complaint item as the respondent was not provided with any notice of the application to amend the complaint', it is not clear to me what proposed amendment of the window complaint the original Tribunal is referring to. However, I take that to be a reference to the remedy which the applicants were seeking in respect of the window complaint, not the subject of the complaint.
As I have noted at [39] above, Member King noted that the applicants had stated in the window complaint that the windows were installed incorrectly. In the schedule to the Complaint submitted to the Building Commissioner, the applicants stated that the windows were installed incorrectly resulting in noticeable 'humps', that the respondent had replaced seven glass panels and that the remedy sought by them was 'Extension of standard window warranty by a further 5 years'.
As I have noted at [36] and [37] above, in the initial PRBO Mr Chadbund noted that the applicants were seeking to extend the warranty period for a further five years, and then in the revised PBRO Mr Chadbund noted that the applicants were requesting that an order be made for a window contractor to inspect each window for compliance with the installation requirements and to complete remedial works where necessary.
As part of the process of determining a building service complaint the Tribunal requires parties to complete a schedule (often referred to as a 'Scott Schedule') in which they set out various details in respect of each item of complaint, including the specific remedial work which the applicants say is required. In the schedule which was in the hearing book the applicants stated that the remedial work they say is required for the window complaint is 'Inspection and rectification and refit where appropriate of incorrectly applied spacers on the installation and otherwise to be fully in accordance with the manufacturer's installation instructions throughout'. In addition, they also sought 'Extension of standard window warranty by a further 5 years'.
It seems to me that the applicants did not appreciate that for a building remedy order to be made under s 36(1) of the BSCRA Act the Tribunal must first be satisfied under s 38(1)(a) of the BSCRA Act that the regulated building service the subject of a building service complaint has not been carried out in a proper and proficient manner or is faulty or unsatisfactory. A building remedy order cannot be made for an investigation to be conducted to ascertain whether building work may not have been carried out in a proper or proficient manner or may be faulty or unsatisfactory.
Notwithstanding the statement by the original Tribunal in [81(a)] of the written reasons for decision that 'as a matter of procedural fairness, the [original] Tribunal is disinclined to allow amendment of the complaint item as the respondent was not provided with any notice of the application to amend the complaint', the original Tribunal went on in its written reasons for decision to deal with the question of whether it was satisfied, having regard to the evidence presented to it, that the building service as it relates to the windows was not carried out in a proper and proficient manner or is faulty or unsatisfactory and concluded that it was not so satisfied.
As I have noted at [41] above, none of the expert witnesses who gave evidence, and who viewed the videos during the final hearing, could say whether the remaining windows have been installed correctly or not. In addition, as I have noted at [42] above, each of those expert witnesses stated that they did not consider it necessary to replace any of the remaining windows.
The applicants' contention that the remaining windows have not been installed in accordance with the manufacturer's installation specification is no more than conjecture.
It was open to the applicants in the preparation of their case, to engage an expert to remove the remaining windows in respect of which the applicants had concerns to inspect the way they have been installed, which may have resulted in them having expert evidence that the remaining windows have not been installed in accordance with the manufacturer's installation specification, which they could have presented to the original Tribunal. However, they did not do that.
I am satisfied and I find that the original Tribunal's finding that, due to a lack of evidence, it was not satisfied that the building service regarding the installation of the remaining windows was either not carried out in a proper and proficient manner nor that the remaining windows are faulty or unsatisfactory was not wrong, considering the evidence which was presented to the original Tribunal at the final hearing.
If the applicants had presented evidence that the remaining windows have not been installed in accordance with the manufacturer's installation specification then there might have been a significant question of law to be considered as to whether that would constitute a failure by the respondent to carry out the installation of the remaining windows in a proper and proficient manner or that the remaining windows are faulty or unsatisfactory. However, in the absence of such evidence this is a moot point.
In these circumstances I am satisfied, and I find that the applicants would not suffer a substantial injustice if leave were not granted for review of the decision of the original Tribunal to dismiss the window complaint.

Should the applicants be granted leave to review the decision of the original Tribunal to dismiss the window complaint?

For the reasons I have given, I have concluded that the decision of the original Tribunal to make the dismissal order (that is, to dismiss the window complaint) was not wrong or attended with sufficient doubt and the applicants will not suffer a substantial injustice if leave is not granted to review that decision.
Accordingly, I will make the following orders.

Orders

The Tribunal orders:
1.Leave is refused for the review of order 2 of the orders made by the Tribunal on 22 March 2024 in Matter Number CC 1398/2022.
2.The application for review is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR D AITKEN, SENIOR MEMBER
17 SEPTEMBER 2024