FITZGERALD and MERCEDES GROUP PTY LTD - [2024] WASAT 33

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   FITZGERALD and MERCEDES GROUP PTY LTD [2024] WASAT 33
MEMBER:   MS A KING, MEMBER
MR R WOODFORDE, SESSIONAL MEMBER

HEARD:   22 MARCH 2024
DELIVERED          :   22 MARCH 2024
PUBLISHED           :   24 APRIL 2024
FILE NO/S:   CC 1398 of 2022
BETWEEN:   MATTHEW FITZGERALD
First Applicant
VICTORIA FITZGERALD
Second Applicant
AND
MERCEDES GROUP PTY LTD
Respondent

Catchwords:

Building Services (Complaint Resolution and Administration) Act 2011 (WA) - Costs of remedial work - Exercise of Tribunal discretion in making a building remedy order - Whether failure to carry out a building service in a proper and proficient manner - Whether faulty or unsatisfactory building work - Building remedy order

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(1), s 11(1)(d), s 36, s 36(1), s 36(1)(a), s 36(2), s 38(1)(a), s 38(1)(b)
Building Services (Complaint Resolution and Administration) Regulations 2011 (WA), reg 5
Home Building Contracts Act 1991 (WA), s 3

Result:

Allowed in part

Category: B

Representation:

Counsel:

First Applicant	:	In Person
Second Applicant	:	In Person
Respondent	:	Mr M Lang

Solicitors:

First Applicant	:	N/A
Second Applicant	:	N/A
Respondent	:	Lang Litigation and Construction Law

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

Gemmill Homes Pty Ltd v Sanders [2018] WASC 179
Lewis and Waco Pty Ltd [2016] WASAT 127
Northcott and Realgold Corporation Pty Ltd [2020] WASAT 72
Total Investments Pty Ltd and Rapley Wilkinson Proprietary Limited [2015] WASAT 29

REASONS FOR DECISION OF THE TRIBUNAL:

(These reasons were delivered orally and have been taken from the transcript of the hearing. They have been edited to make necessary corrections or annotations for the purposes of correcting grammatical errors or infelicity of expression.)

Introduction

A dispute arose between the parties concerning a build of a new three storey house at 1 Alexandra Street, South Perth, Western Australia (the property).
The applicant in the proceeding is Ms Victoria Fitzgerald, (the applicant), who is the owner of the property with Matthew Fitzgerald, her husband representing her at the hearing.
The respondent in the proceeding is the Mercedes Group Pty Ltd trading as Zorzi Builders (the respondent) which was represented at the hearing by Matthew Lang of Lang Litigation and instructed by one of the directors, Mr Sandra Venafro who represented the company and who attended the hearing.
The applicant lodged a building service complaint on 9 November 2021, BC2021 3880 and the Commissioner accepted the complaint on 3 December 2021.
On 21 December 2022 a recommendation was made by the authorised investigator, Mr Michael Parker on behalf of Building and Energy Western Australia that the complaint be referred to the Tribunal for determination to allow the complainant to present further argument.[1]
[1] Exhibit 1, page 15.
The Building Commissioner referred the complaint to the Tribunal under s 11(1)(d) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (the Act). The applicant alleged 16 items as faulty or unsatisfactory building works.[2] The Tribunal noted an alternative complaint schedule with an additional item 17. For the avoidance of doubt the applicant was granted leave to withdraw item 17 and that item is withdrawn.
[2] The applicants prepared a complaints schedule which itemised the complaints under s 11(1)(d) of the Act. We have referred to the items in the same order as the schedule and identified the hearing book as Exhibit 1. The schedule is at pages 276 to 285 of the hearing book.
The applicant seeks remedial work pursuant to s 36(1)(a) of the Act in respect of the building service complaint items and that the complaint items are remedied in a proficient and workmanlike manner.

The issues for determination

The issues for determination by the Tribunal in relation to the building service complaints are as follows:
(1)did the respondent carry out the regulated building service?
(2)if the answer is yes, then was the building work the subject of each of the complaint items, not carried out in a proper and proficient manner or is faulty or unsatisfactory?
(3)if the answer to both of the above is yes, then what is the appropriate form of a building remedy order if any?

The relevant statutory framework.

Section 5(1) of the Act provides that a person may make a complaint to the building commissioner about a regulated building service not being carried out in a proper and proficient manner or being faulty or unsatisfactory. A complaint made under s 5(1) of the Act as defined in s 3 of the Act is a building service complaint.
A regulated building service is defined in s 3 of the Act to include:
(a)a building service carried out by a registered building service provider or an approved owner/builder.
(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 and 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.
The term ‘home building work’ has the meaning given in s 3 of the Home Building Contracts Act 1991 (WA) (HBC Act) and includes the whole or part of the work of altering, improving or repairing a dwelling.
Regulation 5 of the Building Services (Complaint Resolution and Administration) Regulations 2011 (WA) imposes the limitation that only a person whose interests are being or have been adversely affected by the carrying out of a regulated building service may make a building service complaint.
Where a building service complaint is referred to the Tribunal by the Commissioner under s 11(1)(d) of the Act, s 38(1)(a) of the Act enables the Tribunal to make a building remedy order where it is satisfied that the regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory.
The Tribunal may otherwise decline to make a building remedy order under s 38(1)(b) of the Act.
Under s 36(1) of the Act a building remedy order may be made by the Tribunal which may require a person who carried out a regulated building service to do one or more of the following:
(a)remedy the building service as specified in the order;
(b)pay to an aggrieved person such costs of remedying the building service as the Tribunal considers reasonable and specifies in the order; and/or
(c)pay an aggrieved person a sum of money specified in the order to compensate the aggrieved person for the failure to carry out the building service in a proper and proficient manner or for faulty or unsatisfactory building work.
A building remedy order may require that the order be complied with within a timeframe specified in the order in accordance with s 36(2) of the Act.

Background to the dispute and matters agreed between the parties

Numerous key facts are not in dispute between the parties. We make the following findings of fact in date order where relevant, but otherwise in no order of importance, relevant to the issues to be determined in the proceedings:
(a)on 5 November 2012, the applicant and the respondent entered into a contract for the build of a single dwelling in the sum of approximately $3.1 million;
(b)on 19 November 2015, the notice of completion was issued;
(c)on or about 19 November 2015, the applicant completed a property maintenance schedule which is not signed by either the applicant or the respondent; and
(d)the applicant moved into the property in about December 2015.

The conduct of the proceedings and expert evidence

On 10 July 2023, the Tribunal made orders by consent in relation to complaint items 8, 11 and 13.
On 29 November 2023, the Tribunal made further orders by consent in relation to complaint item 12 which was withdrawn and complaint item 14.
On 13 March 2024, the Tribunal made orders by consent in accordance with the minute of consent orders lodged with the Tribunal dated 7 March 2024 in regard to complaint item 12 which was withdrawn and complaint item 14. On 13 March 2024, the Tribunal made orders by consent in accordance with the minute of consent orders lodged with the Tribunal dated 7 March 2024 in regard to complaint items 2, 9 and 15.
The remaining items in dispute to be determined by the Tribunal are:
(a)item 1 - the timber flooring;
(b)item 3 - stone cladding;
(c)item 4 - garage door;
(d)item 5 - window warranty;
(e)item 6 - ensuite window;
(f)item 7 - island bench;
(g)item 10 - front planter; and
(h)item 16 - shed stone cladding.
The Tribunal had the benefit of the report provided following the investigation of the matter conducted by Building and Energy Investigator (BEI), from the building and energy Department of Mines Industry Regulation and Safety (DMIRS) dated 21 September 2021[3] and the proposed building remedy order dated 18 March 2024[4] and 13 May 2022[5] and 13 September 2022.[6]
[3] Ibid, page 14.
[4] Ibid, page 187.
[5] Ibid, page 192.
[6] Ibid, page 987.
As is common in these matters, all of the documents lodged with the Tribunal by each of the parties was compiled into a hearing book and there being no objection to any of the documents, it was marked as Exhibit 1.
The hearing was held over two days with the applicant and respondent and each of the witnesses attending in person.
At the time of the hearing, the parties produced further documents and videos. There being no objection, they were accepted as evidence and marked as follows:
(a)the Zorzi regular maintenance required to your home to new home, marked Exhibit 2;
(b)Danmar garage doors warranty 40078, marked as Exhibit 3;
(c)the bundle of four videos, marked as Exhibit 4; and
(d)a further video, marked as Exhibit 5.
At the conclusion of the hearing, the Tribunal adjourned the matter for oral reasons and orders on 22 March 2024.

Witnesses called by each of the parties

The applicant called the following witness to give evidence at the hearing:
(a)Steven Schulz, registered builder at BCI;
(b)Ian Peterson of WDW West Tech Windows and Doors, for both parties;
(c) Guiseppi Stilano, of International Cabinets; and
(d) Robert Misaro of Benini Stone.
The respondent called the following witnesses to give evidence at the hearing:
(a)Mr Nick D'Ercole, director of Mercedes Group;
(b)Andrew Chadbound, of Building and Energy; and
(c)Tony Belengeri; and Rod Holmes.

The parties' main contentions

The applicant admitted that generally they are happy with the build, however a number of defects were identified at handover and the builder has been slow to respond and remedy the defects.
In sum, the applicant contends that the defective work on the part of the builder in relation to each of the complaint items is faulty or unsatisfactory and a remedy order is sought as the remaining complaint items remain unresolved.
The respondent submits that there is no or insufficient evidence of any faulty or unsatisfactory work in relation to the remaining complaint items and the application should be dismissed. It is alleged that there has been a lack of maintenance to the property by the applicant, which is the cause of the defects.

Consideration by the Tribunal

For a building remedy order to be made against a person who carried out the work, the subject of the building service complaint, the relevant building work must be a regulated building service. We have considered whether the respondent carried out a regulated building service and if so whether the building work the subject of each of the complaint items was not carried out in a proper and proficient manner or is faulty or unsatisfactory.

Did the respondent carry out a regulated building service?

A regulated building service is defined in s 3 of the Act to include home building work carried out by a person for another person under a home building work contract.[7] The expression 'home building work' for the purpose of the Act has the meaning given in s 3 of the HBC Act which includes the whole or part of the work of altering, improving or repairing a dwelling.
[7] See the definition of 'home building work contract' in s 3, HBC Act.
There was no dispute, and we find that the construction of the house and associated works carried out by the respondent is 'home building work' as defined in s 3 of the HBC Act. There was also no dispute, and the Tribunal finds that the respondent carried out the works under a contract between a builder and an owner for the performance by the builder of a home building work for reward.
It was not in dispute and the Tribunal finds that the respondent did carry out a regulated building service which is the subject of complaint items. Therefore, it is open to us to make a building remedy order against the respondent as sought by the applicant under s 36(1) of the Act, if we are satisfied that the work which is the subject of the complaint items was faulty or unsatisfactory.

Was the building work the subject of each complaint item, not carried out in a proper and proficient manner or is faulty or unsatisfactory?

In the matter of Northcott and Realgold Corporation Pty Ltd,[8] the Tribunal found that the language of the above phrase suggests that it comprises two limbs, rather than being a composite phrase for the following reasons:
(a)the description 'in a proper and proficient', attaches to the manner in which the regulated building service has been carried out;
(b)The phrase 'is faulty or unsatisfactory', makes it clear that this element attaches to the regulated building service itself (noting use of the present tense 'is') rather than to the manner in which it 'has been carried out' (the latter using the present tense); and
(c)the limbs are further distinguished by the use of a negative criterion. In the first limb ('the regulated building service … has not been carried out in a proper and proficient manner') and a positive criterion in the second limb ('the regulated building service … is faulty or unsatisfactory').[9]
[8] Northcott and Realgold Corporation Pty Ltd [2020] WASAT 72 at [44] to [48].
[9] Ibid.
For ease of convenience, the Tribunal will refer to the complaint schedule and address items in numerical order and set out its findings and reasons for decision below each item.

Complaint item 1, timber flooring

Jarrah floor has lifted in numerous areas resulting in creaking, clicking and raised boards in normal use and traffic. There are also noticeable varnish blobs to the kitchen and stairs along with the movement to stair noise.
The applicant is seeking to have remedial works undertaken.
The applicant relies on the evidence of Mr Schulz.[10] Mr Schulz had expressed the view that plank and ply method of flooring was agreed upon as it would perform better; it costs more but is a better system[11]. He stated in oral evidence that he observed some drumminess upon inspection of the property which you get with all floors. While it is a defect, he contended that you will get some defects in floors. In the Australian Standard for timber floors, there are no tolerances set out for acceptable levels of drumminess. Overall, the drumminess he estimates is up to 10% of the floor. However, the floor performed satisfactorily, and no remediation work is required apart from an expansion joint which is missing, in his opinion, in the master bedroom between the bedroom and the walk-in robe. He would put in an expansion joint.
[10] Exhibit 1, page 375.
[11] Ibid.
Mr Schulz in his report – photo 11,[12] photographed a blob of varnish in the thoroughfare through the dining room and the kitchen,[13] after it was pointed out to him.
[12] Ibid, page 375.
[13] Ibid, page 391.
This is very noticeable and is a workmanship defect and requires repair.[14] At the hearing he added that he would not have noticed it unless shown to him. He did not document a tap test on the floor. He agreed with the proposition that after seven and a half years, which is how old the floor was at the time of his inspection that the floor was still in good condition generally. He also agreed that a timber floor can be affected by heat and cold and sunlight and like conditions.
[14] Ibid.
The applicant responded by stating he photographed the blob at 1.8 metres away and it is very noticeable. The respondent in the report of Zorzi Builders dated 20 February 2020 stated that on completion of the flooring, the applicant identified a very small puddle of varnish in the meals/living area which was conceded was caused by the varnish not levelling out when the sanders applied the final coat.[15] It was confirmed at the hearing that an offer was made to sand it back, applying new varnish, but the client declined that offer at the time as the proposed works were only to a localised area and not the entire floor area. The puddle is not visible unless pointed out and the floor is overall satisfactory. The respondent relied on the evidence of Mr D'Ercole and Rod Holmes who both agreed that the floor does not require any remedial works. Contrary to the evidence of the applicant, it was submitted that it appears from the photo that the spot was photographed from not a normal viewing distance which is 1.5 metres. Unless pointed out, it would not have been observed otherwise. The experts generally agreed with that proposition.
[15] Exhibit 1, page 177.
Mr Chadbound opined that there are no gaps between the boards, and he did not see any movement. There is no evidence of the floor being defective. Mr D'Ercole told the Tribunal that some drummy effects are normal for a floor and denies that the floor is defective or that it requires rectification. Rod Holmes told the Tribunal that he has 20 years of experience in the timber flooring industry. It is not uncommon for some movement to occur over time.
Mr Holmes agreed that the blob is hard to find and whilst it is unsatisfactory, he would not have noticed it.

Findings of the Tribunal

The Tribunal accepts that the timber flooring was completed in early 2015.[16] Whilst Mr D'Ercole denied receiving the email dated 23 May 2016, which was said to have been attached to the property maintenance schedule referred to by the applicant as the defect list. The Tribunal finds the respondent was aware the client had a list of items he was not happy with.[17]
[16] Exhibit 1, page 177.
[17] Ibid.
The Tribunal accepts and so finds that the respondent went back numerous times and fixed issues that the applicant had on its list with the floors and staircase. This was not in dispute. At the hearing the applicant did not advance any concerns in relation to the stairs and confined himself to issues of drumminess and the blob in regard to the flooring in the thoroughfare.

Drumminess

The Tribunal noted the building inspector in his report dated 18 March 2022 noted the hollow sound complaint was not discernible.
The report of Rod Holmes from Access Flooring states:
My summary of the floor is that they have been lived on for five years at that time and there is normal wear and tear. The floors are stable since installed. No further evidence of increasing drumminess over time was raised other than the initial concerns.
We have taken into consideration the evidence that the Australian Standard does not set out what the acceptable levels are in relation to tolerances for drumminess.
The industry experience as explained by the various experts who gave evidence at the hearing is that some drumminess is normal. No formal assessment of the overall percentage of drumminess was provided by any party or expert.

It was agreed by all of the experts that the timber flooring did not require any remedial work and was performing satisfactorily. We accept that evidence and are not satisfied that he building service in relation to any drumminess that is the subject of the building service complaint has not been carried out in a proper and proficient manner or is faulty or unsatisfactory.

Blob of varnish

We are satisfied that the applicant indicated the puddle issue early on, but declined rectification work at that time as the proposed method of repair was limited and he did not wish to risk making the floor worse. We are satisfied and so find having considered the photograph that the blob is visible from normal viewing distance. Taking all of the evidence into consideration the Tribunal is satisfied that the respondent has not carried out the building service in a proper and proficient manner or is faulty or unsatisfactory in relation to the blob.
The Tribunal finds that the applicant's declining a remedy order as opposed to whole areas being revarnished, was not unreasonable and the Tribunal will make a building remedy order that the entire thoroughfare in which the blob is located to be remedied.

Item 3, stone cladding

The applicants contend that areas of stone cladding above the garage are defective. This was recognised as a defect and reported shortly after handover. Some work has been completed, but not all and further stones have loosened and fallen.
The most recent stone falling off on a recent date, the applicant now cannot recall. The applicant relied on the evidence of Mr Schulz who told the Tribunal that in his opinion, it appears the glue used has given way or the stone has delaminated. He is of the view that it is unsatisfactory workmanship. Mr Chadbound stated that he assumed that the stone had been sealed over at handover and it has not been sealed since and water is getting in underneath causing the stone to fall.
Mr D'Ercole told the Tribunal that repairs were completed, however stone is porous and needs sealing and this has not been done. He opined it is a maintenance issue. Tony Belengeri said he had been out to reapply the stone and none of his repairs have failed to date. The respondent submitted that as no date for the last stone falling has been identified other than it was very recent and after the complaint was lodged, the defect is now outside the contract period and should be dismissed.
The Tribunal had regard to the Building and Energy report dated 13 May 2022 which documents that the complainant acknowledged that the stonework above the garage door has been replaced and is no longer an issue. Due to a lack of evidence generally as to the cause of the problem and as to the date of further stone falling and taking all of the evidence into consideration the Tribunal is not satisfied that the respondent has carried out a building service that was not carried out in a proper and proficient manner or is faulty or unsatisfactory in relation to this item and the item is dismissed.

Item 4, garage doors

The applicant contends that the garage door was damaged in places as a consequence of stone cladding falling from above. The falling stone has caused a scratch in three different places on the door; this allowed water to get in and due to the passage of time the damage is widespread with delamination emanating from three places. It was not in dispute that the wooden door required maintenance and the applicant, Victoria Fitzgerald, initialled the warrant document which recommends that sealant be applied periodically to the door.[18] Mr Fitzgerald admitted that no maintenance to the door had been undertaken by the applicant as they were waiting for the respondent to fix the door.
[18] Exhibit 1, page 745 and 749.
Mr Schulz told the Tribunal that sealing and painting of the applicant's garage door was required on a regular basis, and he recommended every 12 months. Much like decking. This was not disputed by the other experts. Mr Chadbound stated that he did not see any denting or scratching. In his opinion the damage is as a result of ongoing deterioration from a door that has not been sealed.
Mr D'Ercole stated he has never seen any scratches and does not recall if or when he went to have a look. He added that in his opinion sealant should be applied more frequently than 12 months. The respondent submitted that whilst he agreed that stones fell from above the garage door, there is no evidence to support the assertion that the stones hit the garage door and damaged it. They are significant in size and no indentations have been observed or photographed.
On the applicant's own evidence, there is no denting of the door or other damage apart from the alleged scratches. Accordingly, the matter should be dismissed.
The Tribunal had regard to the numerous emails the applicant sent to the respondent, noting the damage to the garage door.[19] The emails do not demonstrate that the respondent accepted responsibility for the damage as alleged. The BEI was unable to identify the alleged scratches and laboured under the impression that the scratches had been repaired.[20]

Findings of the Tribunal

[19] Exhibit 1.

[20] Exhibit 1, page 829.

The Tribunal is satisfied on the evidence that in circumstances where scratches may have occurred on the door, the applicant's failure thereafter to undertake any maintenance over numerous years and apply sealant to the door as recommended contributed to its deterioration which led to the condition that the door is currently in as evinced by recent photographs.[21] The Tribunal, however, is not satisfied due to a lack of supporting evidence, that the alleged scratches occurred and damage to the garage door is as a result of a building service which was not carried out in a proper and proficient manner or is faulty or unsatisfactory.
[21] Exhibit 1, page 338.
We refer to our findings in relation to complaint item 3. It follows that this complaint item is not made out and the item is dismissed.

Item 5, 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. The builder has replaced seven panels. The applicant is concerned that other windows may fail and is asking that an order be made extending the warranty.
At the hearing the applicant sought to amend his complaint by clarifying that 40 windows have been installed incorrectly and the seven new windows have the wrong colour spacers and he is seeking remedial works to be undertaken for all windows. The respondent objected to the amendment sought. He referred to the applicant's response to the PBRO window warranty[22] which states the basis of the complaint is not a visual one. Any previous complaint as it relates to visual defects has been rectified by the replacement of affected glass.
[22] Exhibit 1, page 284.
The scope of the complaint has changed. The applicant submitted that 40 windows have been installed, contrary to manufacturer's guidelines and the visual issue has not arisen around humps which have appeared as depicted in the upper living room window[23] with a seal at the bottom which could result in a catastrophic failure of the window. The replacement windows are the wrong product as they are visually different although working.
[23] Exhibit 1, page 286.
Seventy windows were installed in the house and 40 windows look different as they have a hump and there is a risk of them failing. He conceded that none of the windows have failed. He is seeking a work order that all windows be installed in accordance with the manufacturer's instructions as otherwise he contends, he is unable to rely on the warranty.
The applicant called Mr Ian Peterson to give evidence who told the Tribunal that he had 33 years of experience in the window industry. He attended the property about four years ago in October 2020. He inspected most of the windows. In his opinion incorrect space bars were used in the large windows and this is a common error. The incorrect spacer had caused a hump in some frames. Space bars can move under load. He identified seven windows which, in his opinion, should be replaced and by agreement with the applicant, these were replaced.
Mr Peterson opined that the small windows did not appear defective. The small windows and the remaining large windows were performing well.
In relation to a further video[24] taken a few days prior, he added he was wondering what he was looking at. It was agreed between the parties that at the time of inspection, that window did not have a hump and it was possible for the blocks to have moved since. It was put to him that the window did not comply with the installation standard. Mr Peterson agreed with the applicant that using the wrong product did not comply with the standard and an error had been made however, a visual hump in itself does not indicate that a window is defective, and it cannot be said that all remaining windows have been installed incorrectly. The remaining windows in his opinion, are performing satisfactorily.
[24] Exhibit 5.
Mr Peterson gave evidence that in relation to the colour variation complaint regarding the spacers, the window company that manufactured the original windows went into liquidation and it was not possible to obtain windows with exactly the same colour spacer and the difference is between a mat versus a gloss finish. All experts agreed with that proposition.
Mr D'Ercole told the Tribunal that whilst he did not receive the document marked 'attachment'[25] to the complaint schedule, he had been made aware of the complaint about the windows by the applicant and had arranged for Mr Peterson to attend the property.
[25] Exhibit 1, page 261.
Mr Schulz contended that upon carrying out an inspection in June 23 he could not see any humps. His inspection was a purely visual one.
Mr Chadbound told the Tribunal that the colour of the spacers was not an issue raised with him and he did not understand it to be part of the complaint. In his opinion, it cannot be assumed that the remaining windows will fail. The usual window warranty is 12 months to 5 years. The life of the windows has exceeded that timeframe.
The respondent submitted that there are no obvious problems with the remaining windows and six years have passed after practical completion which is not in dispute. Which is in excess of the usual warranty period. It was not possible to have obtained spacers with exactly the same colour or finish. This cannot, therefore, amount to a building service which was not carried out in a proper and proficient manner or is faulty or unsatisfactory.
The respondent referred to the matter of Total Investments Pty Ltd and Rapley Wilkinson Proprietary Limited[26] 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[.]
[26] Total investment Pty Ltd and Rapley Wilkinson Pty Ltd [2015] WASAT 29 at [32].
At [37] in relation to the question as to whether the product is unsuitable or not fit for purpose, it found both experts gave evidence referred to in [27] above that the product had been performing well, was suitable for its application and fit for purpose and has performed in excess of the manufacturer's warranty period. In those circumstances, the claim that the installed product was faulty or unsuitable must fail.

Findings of the Tribunal

The Tribunal does not have the power to order the extension of a warranty as a matter of law as sought in complaint item 5.[27]
[27] Exhibit 1, page 17.
The 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.
The 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.
Mr Peterson[28] did not examine all windows in the house. He predominantly looked at large windows.
[28] Exhibit 1, P1073.
The 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.
No 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.
The 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.

Item 6, ensuite window - Windows to the ensuite and bathroom areas have very poor acoustic properties

The applicant contends that external noise can be heard. He relied on the evidence of his own sound tests.
Mr Schulz told the Tribunal that he could not provide any expert evidence on the topic and understood it to be only a minor issue.
Mr Chadbound told the Tribunal an acoustic test for having the applicant speak outside the bathroom was undertaken only in one room at the time of his visit. He could not discern any issues and recommended in his report that this item be dismissed.
Mr D'Ercole told the Tribunal that he did not observe any noise difficulties.
Mr Peterson was not able to comment as it was outside his area of expertise.
The respondent denies the properties of the windows are deficient. The Tribunal finds that due to a lack of any independent acoustic evaluation evidence, the Tribunal is not satisfied that the building service as it relates to the ensuite window was not carried out in a proper and proficient manner or is faulty or unsatisfactory. The complaint item is dismissed.

Item 7, island bench

Kitchen island cabinets and benchtop installed in the wrong order resulting in the benchtop visually and physically overlapping, ie, not flush per design.
The applicant complains that the benchtop does not finish vertically aligned with the cabinet edge below. The applicant is seeking it be remedied. The applicant relied on the evidence of Mr Misaro who told the Tribunal that he was director of a stone company. He gave evidence that in the stone industry there are variations, especially when dealing with natural stone.
The specifications of this job do not say it needed to be a flush finish and they always allow for a slight overhang which is better than it being short. The overhang on this benchtop is acceptable. In his opinion, this was not unsatisfactory work. Mr Schulz told the Tribunal that he noted some variations but was of the view that it was satisfactory. Mr Chadbound stated the overhang was not outside industry standard. The BEI report notes that a slight deviation exists, which is negligible and would not warrant any potential damage to the stone top in aligning it with the cabinet.
Mr Stilano gave evidence that the stonemason has made the top marginally longer, so that spillages do not go directly onto the cabinetry below. Mr D'Ercole, Mr Misaro and Mr Belengeri agreed with that evidence.

Findings of the Tribunal

The Tribunal finds, having considered all of the evidence, that the weight of the evidence is that the slight overhang is acceptable and within industry standards and that this was, in many cases, preferred.
The Tribunal is satisfied and so finds that the building service in relation to this item was not carried out in a proper and proficient manner or is faulty or unsatisfactory. The item is dismissed.

Item 10, front planter face brick

Front face brick mortar is falling out, breaking from brick and cracking. The applicant is seeking it be remedied. The respondent contends that the applicant was given three choices of finish and chose the joint to be cut off flush with no additional tooling or flushing of the joint, given the wire-cut brick and white mortar.
The BEI investigation report notes that the Building Code of Australia is silent on the tooling of mortar joints, and they are consistent with what the applicant selected. The small voids and minor cracking are not considered detrimental to the overall strength and longevity of the garden beds.[29]
[29] Exhibit 1, page 199.
Mr D'Ercole gave evidence that he had recommended a flush finish of a flat iron and that the applicant spoke to the bricklayer directly and requested this finish. This was not conceded by the applicant.
It is unnecessary for the Tribunal to resolve this issue as the parties agreed that subsequently a person unknown had carried out repairs on the mortar joints. Mr Fitzgerald, under oath, maintained that it was not him or the applicant. Mr D'Ercole stated it was not him personally and he did not know who did that work.
It was agreed by the experts, Mr D'Ercole, Mr Belengeri and Mr Chadbound, that the repairs were unsatisfactory and did not amount to proper and proficient workmanship as the mortar was of a different colour and it appeared to be of a different substance.

Findings of the Tribunal

Given the applicant admitted to not carrying out maintenance in relation to all other items, the Tribunal accepts the evidence of Mr Fitzgerald that it was not the applicant who carried out the mortar repairs and finds despite Mr D'Ercole not being able to identify precisely who carried out the work, that it is to be properly construed as part of the building service provided.
The Tribunal finds that having considered all of the evidence that the building service in relation to the mortar joints was not carried out in a proper or proficient manner or is faulty, unsatisfactory and the Tribunal will make a remedy order.

item 16, shed stone cladding

The applicant contends that the stone cladding to the shed door is bubbling, resulting in flaking to the face of the stone. The applicant is seeking to have the defective stone removed and new stone laid and sealed. The applicant relied on the evidence of Mr Schulz who opined that the stone is exposed to outside and is porous. It appears that the stone was not properly sealed or is in some other way defective. It is a visual matter only.

Mr Tony Belengeri noted that in the numerous times he attended the property to fix the stone above the garage, these stones were never mentioned to him. Mr Chadbound opined that there are no photos of the stone in 2016 or in their original state and this is deterioration which is normal wear and tear. Mr D'Ercole submitted the builder simply takes delivery of the stone and lays it. If it is not protected it will eventually dissolve and it needs to be sealed. It can be sealed when starting to flake and sealing would certainly stop it getting worse.
The respondent denied that the work done was faulty or unsatisfactory as in the handover file there is significant information given on the maintenance required and the applicant, by their own admissions, have not carried out any maintenance in relation to the stone, allowing it to deteriorate further.

Findings of the Tribunal

The Tribunal has examined the photographs and finds there is discolouration of the stone.
The Tribunal is unable to be satisfied due to a lack of evidence, that the discolouration was as a result of a building service that was not carried out in a proper and proficient manner or is faulty or unsatisfactory. Accordingly, the complaint item is dismissed.

What is the appropriate building remedy order in relation to each of the items not carried out in a proper or proficient manner or is faulty and unsatisfactory building work

The Tribunal may require a person carry out a regulated building service that is faulty or unsatisfactory to be the subject of a building remedy order. Section 36(1) of the Act confers discretion on the Tribunal as to the form of the building remedy order. The building remedy order may specify the work to be performed or require a sum of money to be paid to the aggrieved person to remedy the building service or as compensation for the work being faulty or unsatisfactory. However, it is not the case that any failure to carry out the building service in a faulty or unsatisfactory manner must result in the grant of a building remedy order.[30]
[30] Lewis and Waco Pty Ltd [2016] WASAT 127 at [9].
The applicant is seeking a remedial works order under s 36(1)(a) of the Act. The applicants have no right to elect the remedy sought under s 36(1) of the Act but are entitled to express a preference and the Tribunal refers to the matter of Gemmill Homes Pty Ltd v Sanders [2018] WASC 179. As her Honour then was observed[31] as finding at [133]:
It must be borne in mind that the statutory limits on the exercise of the discretion to make a building remedy order are only those set out in s 38. The repository of the power conferred to make an order (the Tribunal) must form an opinion that the regulated building service that is the subject of the building service complaint has not been carried out in a proper and proficient manner or is faulty or unsatisfactory.
[31] Gemmill at [133]-[135].

Findings by the Tribunal in relation to the appropriate remedy order

The Tribunal is satisfied in all of the circumstances that a remedy order in accordance with s 36(1) of the Act is the appropriate remedy in all of the circumstances.
Consequently, we find that a building remedy order in the form as set out below should be made against the respondent under s 36(1)(a) of the Act.

Orders

The Tribunal orders:
1.The Tribunal grants leave to the applicant to withdraw complaint item 17 and the item is withdrawn.
2.Complaint items 3, 4, 5, 6, 7 and 16 are dismissed.
3.The respondent shall remedy complaint item 1 by resurfacing the entire thoroughfare in which the varnish blob was located, and adjoining timber floor surfaces. The works are to be completed in a proficient and workmanlike manner within 90 days of the date of this order.
4.The respondent shall remedy complaint item 10 by re-grouting entire walls of the plantar box on which any repairs have been undertaken. The works are to be completed in a proficient and workmanlike manner within 90 days of this order.
5.Order 1 of the Tribunal made on 13 March 2024 is amended by consent of the parties as follows:
6.By no later than 90 days following 22 March 2024 the respondent is to remedy the cause and effect of the following complaint items:
(a)Item 2 (Door head to pump room);
(b)Item 9 (Cedar eaves); and
(c)Item 15 (Sagging Ceiling – Butler's entry).

7.Rectification works to remedy item 2 (Door head to pump room) to include cleaning and replacement of full pieces of cracked stone and to match as close as practicable adjacent materials.
8.All remedial works shall be carried out in a proper and proficient manner including protecting and making good all affected adjacent surfaces and to match as close as practicable existing coatings and materials.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS A King, MEMBER
24 APRIL 2024