FLETCHER and LEONARD WILLIS TRADING AS WILLIS PAINTING SERVICE
[2015] WASAT 135
•28 OCTOBER 2015
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)
CITATION: FLETCHER and LEONARD WILLIS TRADING AS WILLIS PAINTING SERVICE [2015] WASAT 135
MEMBER: MS K LANG (SENIOR SESSIONAL MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 28 OCTOBER 2015
FILE NO/S: CC 873 of 2014
BETWEEN: BRADLEY JOHN FLETCHER
Applicant
AND
LEONARD WILLIS TRADING AS WILLIS PAINTING SERVICE
Respondent
Catchwords:
Building remedy order - costs application
Legislation:
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 36(1)(b), s 49
State Administrative Tribunal Act 2004 (WA), s 87
Result:
Application successful
Summary of Tribunal's decision:
Building remedy order and costs application determined on the documents
Category: B
Representation:
Counsel:
Applicant: In Person
Respondent: Andrew Searle
Solicitors:
Applicant: N/A
Respondent: Searle Construction Lawyers
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The State Administrative Tribunal considered the applicant's application for an order to pay and costs under the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act 2011), having previously determined the substantive complaint in the applicant's favour after hearing, upheld on review.
The parties did not seek a hearing of this application, which was determined by the Tribunal 'on the documents'.
The application for an order to pay under s 36(1)(b) of the BSCRA Act 2011
The applicant filed various quotations to prepare and paint interior walls throughout the house:
•All Star Painting Quotation Q00423 (includes stripping and sanding all plastered walls) - $28,600;
•All Star Painting Quotation Q00457 - $9,350;
•Global Decorating Quotation 4476 Quote 1 - $13,255; and
•Global Decorating Quotation 4476 Quote 2 (includes stripping paint from all internal walls) - $18,500 to $21,000.
The applicant did not file submissions in support of the application and did not argue that stripping and sanding all walls was necessary. All quotations provided for preparation prior to painting. Any future failure of these works would be the responsibility of the relevant contractor.
During the substantive hearing the applicant had informally conceded that some high traffic areas should not be painted at the respondent's expense but no such concessions were made in the context of this application.
The respondent filed quotations and a report by expert building consultant, Richard Machell of Prescient Consulting, dated 8 October 2015. In summary, this report states that the paint to all internal walls is not adequately adhered, except the theatre room and the plasterboard lined walls and bulkheads. The walls are not greatly affected by normal wear and tear and, save for the workmanship defects, would not require recoating for a further two to five years.
From this report we determine the appropriate and necessary scope of works is to prepare and paint all interior plastered surfaces save for the theatre room.
We are not persuaded by the respondent's submissions to the effect that repainting is not reasonable or necessary, which, in any event, contradict the respondent's own expert's report.
The respondent submitted two quotations:
•WA Painters Annexure B - $4,697.09; and
•WA Painters Annexure C (full repaint using Zinsser Peel Stop treatment) - $13,625.92.
We accept the respondent's submission that Annexure C is an appropriate quotation for the necessary scope of works, noting that this is higher than two of the applicant's quotations. We deduct the cost of painting and preparing the theatre room, which is itemised by WA Painters at $464.92, plus GST, and award $13,113.40 to the applicant for the remedial works.
Costs application
The Tribunal has a discretion to order such costs as it thinks fit under s 49 of the BSCRA Act 2011 (WA) in the context of s 87 of the State Administrative Tribunal Act 2004 (WA).
The applicant sought the following costs:
•Kevin Burgoyne Lawyer (8 June 2015) $3,300
We agree with the respondent's submissions that these costs are not properly claimed and do not allow this item.
•Zedcon (31 August 2015) $1,450
These costs relate to the services of the applicant's expert, Dr Zurhaar, after the conclusion of the substantive hearing. The expert did not provide further expert evidence to the Tribunal at the review and we therefore disallow this item.
•Master Painters and Decorators (18 November 2013) $165
The respondent accepts this item, which is allowed.
•Plastering Assessment and Advisory Service (17 December 2014) site inspection $500
This expense was reasonably incurred by the applicant in the proper preparation of the complaint and is therefore allowed.
•Plastering Assessment and Advisory Service (5 February 2015) $750
The respondent accepts this item, which is allowed.
•Zedcon (27 August 2014) $2,667
The respondent accepts this item, which is allowed.
•Zedcon (4 February 2015) $2,145
The respondent accepts this item, which is allowed.
•Zedcon (4 February 2014) $1,072.50
The respondent objects to this item. The Tribunal considers it reasonable and advisable for a party's expert to review the other party's expert evidence prior to the hearing. This expense is allowed.
•Zedcon (4 February 2014) $2,502
The respondent accepts this item, which is allowed.
•Zedcon (13 August 2014) $715
The respondent objects to this item. The Tribunal considers it reasonable and advisable for a party's expert to attend site prior to the hearing. This expense is allowed.
•Zedcon (16 October 2014) $1,072.50
The respondent objects to this item. The Tribunal considers the expert's participation during the mediation to be an expense reasonably and properly incurred by the applicant in the usual course of the Tribunal proceedings. This expense is allowed.
•Zedcon (13 March 2015) $2,323.75
The respondent accepts this item, which is allowed.
The Tribunal therefore ordered the respondent to pay costs to the applicant in the amount of $13,913.75.
Orders
The following orders were issued by the Tribunal on 28 October 2015:
1.The respondent pay the applicant the sum of $13,113.40, under s 36(1)(b) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), by 30 November 2015.
2. The respondent pay costs to the applicant in the amount of $13,913.75, pursuant to s 49 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), by 30 November 2015.
I certify that this and the preceding [13] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS K LANG, SENIOR SESSIONAL MEMBER
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