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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] WASAT 33
Decision Date: 24 APRIL 2024

CaseChat Overview and Summary

Fitzgerald and Mercedes Group Pty Ltd was a matter before the Building Services Tribunal in Western Australia, involving a dispute over the cost of remedial work required for a building. The primary legal issues the court had to decide were whether the building service was carried out in a proper and proficient manner and whether the building work was faulty or unsatisfactory. The decision referenced the case of Northcott and Realgold Corporation Pty Ltd, which established that the phrase in question is composed of two separate limbs. The first limb pertains to the manner in which the building service was carried out, while the second limb pertains to whether the building service itself is faulty or unsatisfactory.

The Tribunal found that the jarrah floor had lifted in numerous areas, resulting in creaking, clicking, and raised boards, and there were noticeable varnish blobs to the kitchen and stairs along with movement to stair noise. The applicant sought to have remedial works undertaken, relying on the evidence of Mr. Schulz, who observed some drumminess upon inspection of the property. While it was a defect, he contended that some defects are expected in floors. The Australian Standard for timber floors does not set out tolerances for acceptable levels of drumminess. The Tribunal found that the floor performed satisfactorily, and no remediation work was required apart from a missing expansion joint in the master bedroom between the bedroom and the walk-in robe.

The Tribunal concluded that the building service was carried out in a proper and proficient manner, and the building work was not faulty or unsatisfactory. As a result, the Tribunal did not make a building remedy order for the cost of remedial work. The Tribunal found that the applicant had not discharged the onus of proving that the building service was not carried out in a proper and proficient manner or that the building work was faulty or unsatisfactory. The Tribunal dismissed the application in its entirety.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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. 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.