GM BUILDERS PTY LTD and ROBINSON - [2011] WASAT 93

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: BUILDERS' REGISTRATION ACT 1939 (WA)

CITATION: GM BUILDERS PTY LTD and ROBINSON [2011] WASAT 93

MEMBER: MR S ELLIS (SENIOR SESSIONAL MEMBER)

HEARD: 27 MAY 2011

DELIVERED : 27 MAY 2011

FILE NO/S: CC 336 of 2011

BETWEEN: GM BUILDERS PTY LTD
Applicant
AND
MARTIN FRASER ROBINSON
Respondent

Catchwords:

Building and construction Leave to appeal from Building Disputes Tribunal

Legislation:

Builders' Registration Act 1939 (WA), s 41
Building Code of Australia

Result:

The application is dismissed

Category: B

Representation:

Counsel:

Applicant: Mr Gibson
Respondent: Self-represented

Solicitors:

Applicant: Lawton Gillon
Respondent: N/A

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

Cardinal Constructions Pty Ltd v Argo 16 SR (WA) 344
Tangent Nominees Pty Ltd and Edwards & Anor [2005] WASAT 119

REASONS FOR DECISION OF THE TRIBUNAL:

The Tribunal's reasons taken from the transcript and edited in minor respects are as follows.

Summary

The applicant builder sought leave to appeal from a decision of the Building Disputes Tribunal requiring it to pay the applicant $91,558.85. The applicant challenged the determination that the applicant was liable for damage caused by water penetration to the respondent owner's property.
In order for an applicant to be granted leave to appeal under s 41 of the Builders' Registration Act 1939 (WA) an applicant must show that the decision of the Building Disputes Tribunal was sufficiently doubtful to warrant the grant of leave and there must be some other reason for granting leave, such as the fact that substantial injustice would result if leave were not granted or that there is a significant question of law to be considered.
The Tribunal concluded that the decision of the Building Disputes Tribunal was not attended by sufficient doubt to warrant the grant of leave to appeal.
The application for leave to appeal was dismissed.

Introduction

This is an application for leave to appeal from a decision of the Building Disputes Tribunal (BDT), issued on 3 March 2011. The application was made pursuant to s 41 of the Builders' Registration Act 1939 (WA) (BR Act).
The applicant, a registered builder, was the respondent in the BDT proceedings where it was unsuccessful. The respondent in these proceedings was the claimant before the BDT. He was, and is, the owner of No 27 Starfire Close, Halls Head (the Property). I shall refer to the applicant in these proceedings as 'the builder' and the respondents in these proceedings as 'the owner'. The BDT ordered the builder to pay the owner a total of $91,558.85 including GST within 21 days of 3 March 2011.
The application to the Tribunal, when originally filed, challenged the whole of the decision of the BDT. At the hearing, the builder withdrew that part of the application which challenged order 1 in the BDT's orders. The challenge which was pursued was only in respect of order 2, which dealt with the issue of water penetration to the owner's property.
The challenge made by the builder to the decision of the BDT was, in broad terms, that the factual conclusion reached by the BDT was unsound. This Tribunal does not consider that the BDT's factual conclusion was attended by sufficient doubt to warrant the grant of leave. I will now outline at greater length my reasons for reaching this conclusion.

Background

There was a contract entered into between the builder and the owner pursuant to which the builder agreed to build a house on the property at No 27 Starfire Close, Halls Head for approximately $700,000. There were variations to the work which totalled approximately $115,000. A dispute arose between the parties. The owner issued a preliminary notice to the builder dated 11 February 2010. An inspection of the site took place on 14 December 2010 and the inspector, who was with the BDT, issued recommendations dated 5 January 2011. Those recommendations did not resolve the dispute. The dispute came before the BDT on 2 March 2011.
There were two aspects to the dispute before the BDT: termite damage and water penetration. There was no issue between the parties that termite damage and water penetration had occurred. The dispute was about whether the builder was responsible for them and, to a lesser extent, about the quantum of the cost of repairing the damage. The BDT found against the builder on both issues.
It made a number of orders. The first order was that the respondent pay to the complainant $28,990.85 in relation to the termite treatment. No challenge is pursued in relation to that order. The second order was that the respondent pay to the complainant the sum of $56,888 together with $5,688 GST. The second order is the order which is the subject of challenge in these proceedings.
The builder also applied for a stay of the orders made by the BDT and that application was not successful. I am not aware that the builder has complied with its obligations to pay the amount ordered by the BDT.

Legal Principles

I turn now to the principles to be applied for the grant of leave. Those principles are well settled and are discussed in the case of Tangent Nominees Pty Ltd and Edwards & Anor [2005] WASAT 119 at [35] [44] and in the cases referred to in that case. The decision of Cardinal Constructions Pty Ltd v Argo 16 SR (WA) 344 (Cardinal Constructions) is also relevant.
In general terms, in order for leave to appeal to be granted, the decision below must be attended by sufficient doubt to warrant the grant of leave and there must be some other reason for granting leave, such as the fact that substantial injustice would result if leave were not granted or that there is a significant question of law to be considered. There is no requirement, however, that the decision challenged be obviously wrong. That is established by Cardinal Constructions at [351].

Consideration

In its submissions, the builder contended that the BDT failed to consider two reports which were provided to it. The first was a report of Mr Ron Allen, trading as Building and Home Construction and Inspection Service, dated 24 February 2010. The second was a report of Sovereign Hydrostatic Solutions, dated 7 February 2011, prepared by Mr Nico Grobler. The builder contended in general terms that these reports supported the proposition that the water damage was caused by defective tiling work carried out by a tiler engaged by the owner for which the builder was not responsible. It was suggested in argument by the builder before the BDT that the fall of the tiling work was not in accordance with applicable Australian Standards and this caused moisture penetration. This was also the effect of the applicant's written submission at para 8.1.
The submissions, as developed by counsel for the builder before this Tribunal, did not focus on this allegation. It is, however, I think, necessary and appropriate to deal with the submission made in the written submissions as well as the argument advanced orally. In the Tribunal's opinion, the reports relied on by the builder do not support the builder's contention that the moisture penetration was caused by the defective work of the tiler.
The report of Mr Allen was commissioned by the builder. It is addressed primarily to the steps which ought to be taken to remedy the problems on site rather than to the causes of those problems. However, at page 2 of his report Mr Allen says:
… [T]he soil outside the undercroft doorway beneath the paving was saturated and I would suggest due to the water table being reasonably high beside the canal, the surrounding area being hosed down on a regular basis and a shower nearby, the water has had no way of escaping and the area stays moist. It appears that a capillary reaction has taken place and has drawn the moisture upwards.
There is no reference in this passage to the tiling and the assertion that moisture has been drawn upwards is inconsistent with the suggestion that water flowed downwards from and through the tiling.
Before the BDT, the builder apparently referred to a number of photographs contained in Mr Allen's report and to the captions of those photographs. This is apparent from the reasons given by the BDT. The relevant captions appear to be photographs 19, 20, 34 and 35 in his report. However, the captions to the those photographs do not provide evidence that the fall was inadequate or that there was actually any holding of water on the balconies. The captions refer to the possibility of holding water and there is a comment in the caption that there was very little fall. However, the Building Code of Australia standards referred to in the report, appear to contemplate a minimum fall of 1:80 or 1:100. This can properly be described as very little fall.
There is nothing to establish that the fall was inappropriate. I note that the caption to photograph 19 states: 'Owner had their own floor tiles installed and there is a question regarding the waterproofing of the balcony'. However, merely raising a question is not the same thing as making a positive statement that the waterproofing of the balcony was defective. This report does not provide evidence that the work of the tiler was defective or that the tiling was associated with moisture penetration.
The other report relied on by the builder was that of Mr Grobler. Mr Grobler's report is also primarily addressed to the remedial action that might be taken and does not focus on the link between the tiling and the water damage. The applicant pointed to the third paragraph on the first page of the report which reads:
1st a Core sample was extracted from the balcony slab and inspected followed by injecting clean water to determine the porosity of the screed and to monitor the moisture in the wall below. See photo 1 & 2.
The report goes on in the fifth paragraph to say:
After the injection phase the moisture increased from 26% to 34.5%. This indicates that the tiled area above the slab is allowing water to migrate vertically behind the wall … '.
The passages that I have just read should also be taken in the context of the earlier conclusion of Mr Grobler:
… there is more than one cause of water ingress that is responsible for the high moisture content within the walls resulting in effloresces coming out and paint peeling.
The report expressed a link between what Mr Grobler describes as the 'tiled area above the slab' and the moisture penetration. It is not clear, however, that the tiled area to which Mr Grobler was referring was the area for which the independent tiling contractor was responsible. The other significant point is that Mr Grobler does not indicate in any way that the tiling carried out by the independent contractor was defective or that the fall on the tiling was inappropriate.
The evidence does not therefore support the contention that was made in para 8.1 of the builder's written submissions to this Tribunal, or what appears to have been the argument raised before the BDT, namely, that it was the fall in the tiling which was the cause of the water penetration.
In his oral submissions to this Tribunal, Mr Gibson, on behalf of the builder, referred to the passage that I have quoted from the report of Mr Grobler where he talks about the tiled area and argued that this showed that the water penetration was caused by the failure of the tiler to install a moisture barrier or waterproofing membrane. He suggested that this issue should be remitted back to the BDT to enable this issue to be fully investigated. He conceded, however, that this submission, namely, that the tiler had failed to install waterproofing, was not an argument that had been raised before the BDT. Paragraph 35 of the BDT's reasons sets out the argument that the builder had raised. The argument raised by the builder before the BDT was the issue of fall, not the issue of installing a waterproof membrane.
The failure of the builder to raise this issue before the BDT is a significant one. In general, parties are required to bring all their evidence to a hearing and do not get a second bite of the cherry. This responsibility is particularly significant in the present case because expert evidence dealing specifically with that issue could have been provided to the BDT. It is noteworthy that none of the experts specifically dealt with the tiler's responsibility to install a membrane and, in particular, Mr Allen, who was an expert engaged by the builder, did not raise it. One would have anticipated that if there was any substance to that contention it would have been raised by the builder's expert.
There was also no evidence that the tiler was responsible for installing a waterproof membrane in the building. The owner included drawings of the works in his bundle of papers. These drawings show a waterproof membrane. The waterproof membrane shown in those drawings appears to be located in the walls and within the concrete slab. It does not appear to be work which would ordinarily be the responsibility of a tiler. Certainly, if the builder had wanted to contend that this work was the responsibility of the tiler, the builder ought to have lead evidence to that effect and raised the issue before the BDT.
There is no evidence which persuades me that the tiler had failed to install the membrane. Nor does the evidence persuade me that that is an issue which should be remitted to the BDT for it to be considered quite apart from the issue of the failure of the builder to raise that matter before the BDT.
I should also note the other evidence that was before the BDT which was a report prepared by an inspector employed by the Builders' Registration Board, dated 5 January 2011. That report recommended that the builder rectify the cause and effect of the moisture penetration. It was open to the BDT to accept that report and conclude that the builder was responsible for the moisture penetration.

Conclusion

In summary, there is no evidence before me to support the hypothesis that the tiling work was defective in relation to the fall of the tiling. The builder failed to raise the issue of the tiler's alleged failure to install a membrane before the BDT and, as a consequence, evidence on that point and full argument was not put before the Tribunal. The evidence before me does not persuade me that that issue should be remitted to the BDT for it to be considered.
In the circumstances, I consider that the decision of the Building Disputes Tribunal was not attended by sufficient doubt to warrant the grant of leave pursuant to s 41 of the Builders' Registration Act 1939 (WA) and I dismiss the application.

I certify that this and the preceding [32] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR S ELLIS, SENIOR SESSIONAL MEMBER