GRIFFIN and SSB PTY LTD - [2024] WASAT 137

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   GRIFFIN and SSB PTY LTD [2024] WASAT 137
MEMBER:   MR E CADE, MEMBER
MR J D ORR, SESSIONAL MEMBER

HEARD:   11 AND 12 JULY AND 19 SEPTEMBER 2024
DELIVERED          :   6 DECEMBER 2024
FILE NO/S:   CC 1749 of 2022
BETWEEN:   SCOTT PAUL STUART GRIFFIN
First Applicant
LISA GEARY
Second Applicant
AND
SSB PTY LTD
Respondent

FILE NO/S: CC 1333 of 2023
BETWEEN: SCOTT PAUL STUART GRIFFIN
Applicant
AND
SSB PTY LTD
Respondent

FILE NO/S: CC 284 of 2024
BETWEEN: SCOTT PAUL STUART GRIFFIN
First Applicant
LISA CHERIE GEARY
Second Applicant
AND
SSB PTY LTD
Respondent

Catchwords:

Building services complaint - Principles applicable to the determination of a building service complaint - Preliminary issue under r 39B and r 39C - Complaint items agreed and not agreed by the expert witnesses in the expert joint conferral statement

Legislation:

Building Act 2011 (WA), s 3
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5(1), s 11(1)(d), s 12(a), s 36(1), s 36(1)(a), s 36(1)(b), s 38, s 38(1)(b)
Building Services (Complaint Resolution and Administration) Regulations 2011 (WA), r 5
Building Services (Registration) Act 2011 (WA), s 3
Home Building Contracts Act 1991 (WA), s 3
State Administrative Tribunal Act 2004 (WA), s 11(8), s 51(1)
State Administrative Tribunal Rules 2004 (WA), r 39A, r 39B, r 39B(5), r 39B(6), r 39C, r 39C(1), r 39C(2)

Result:

Applications partially successful

Category: B

Representation:

CC 1749 of 2022

Counsel:

First Applicant	:	In Person
Second Applicant	:	In Person
Respondent	:	Mr RD Shaw

Solicitors:

First Applicant	:	N/A
Second Applicant	:	N/A
Respondent	:	Lavan

CC 1333 of 2023

Counsel:

Applicant	:	In Person
Respondent	:	Mr RD Shaw

Solicitors:

Applicant	:	N/A
Respondent	:	Lavan

CC 284 of 2024

Counsel:

First Applicant	:	In Person
Second Applicant	:	In Person
Respondent	:	Mr RD Shaw

Solicitors:

First Applicant	:	N/A
Second Applicant	:	N/A
Respondent	:	Lavan

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

Brooks and Gransden Building Company Pty Ltd [No 2] (Brooks) [2021] WASAT 86
Deshmukh and Distinctive Building Services Pty Ltd [2024] WASAT 15
Gemmill Homes Pty Ltd v Sanders [2018] WASC 179
Hippydayze Pty Ltd and Mener Group Pty Ltd [2019] WASAT 92, 21
Owners of Island Apartments Strata Plan 52597 and Pindan Pty Ltd [No 2] [2018] WASAT 2

REASONS FOR DECISION OF THE TRIBUNAL:

Background

On 8 November 2018 Lisa Geary (the owner) and SSB Pty Ltd trading as Dream Start Homes (the respondent or the builder) entered into a Home Building Work Contract (the contract). Under the contract the respondent was to construct a brick and steel home for the owner at Lot 646/3 Bylong Way, Wellard, for the price of $189,390.[1] The home reached practical completion on 16 July 2019.[2]
[1] Hearing Book (HB), pages 964 - 1009.
[2] HB, page 726.
Proceedings CC 1749/2022, CC 1333/2023 and CC 284/2024 concern three building service complaints made to the Building Commissioner pursuant to s 5(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) in respect to the home. These three complaints were subsequently referred to the Tribunal pursuant to s 11(1)(d) of the BSCRA Act by the Building Commissioner, for the Tribunal to deal with as building service complaints under s 38 of the BSCRA Act.
The first applicant in CC 1749/2022 and CC 284 of 2024 and the sole applicant in CC 1333/2023 is Mr Griffin, who is the husband of the second applicant.[3] The second applicant in proceedings CC 1749/2022 and CC 284 of 2024 is Ms Geary, the owner of the home.[4] The Tribunal in these reasons will refer to Mr Griffin as the first applicant and to Ms Geary as the second applicant, and together as the applicants.
[3] Section 3 of the Home Building Contracts Act 1991 (WA) (HBC Act) contains this definition: 'owner in relation to a contract means the person for whom or which home building work is to be performed under the contract'. Rule 5 of the Building Services (Complaint Resolution and Administration) Regulations 2011 (WA) permits a building service complaint to be made by 'a person whose interests are being, or have been, adversely affected by the carrying out of the regulated building service'.
[4] BSCRA Act, s 12(a).
The proceedings were heard as a final hearing by the Tribunal constituted as a panel of three members, being Member Cade, Member Hartley and Sessional Member Orr, on 11 and 12 July 2024, and 19 September 2024. As Member Hartley is now on an extended leave of absence from the Tribunal the President altered the constitution of the Tribunal pursuant to s 11(8) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), so it now falls to a Tribunal constituted by Member Cade and Sessional Member Orr to determine the proceedings.
On 12 July 2024, pursuant to s 51(1) of the SAT Act, the Tribunal ordered that proceedings CC 1749/2022, CC 1333/2023 and CC 284/2024 are to remain as separate proceedings, but be heard and determined together, and that evidence in one proceeding is to be evidence in the other proceedings.

The proceedings

The three complaints referred to the Tribunal are:
(a)a building service complaint consisting of 41 complaint items referred to the Tribunal on 24 November 2022. This complaint became CC 1749/2022. These complaint items are referred to in these reasons as complaint items 1 to 40 and 43;
(b)a building service complaint consisting of one complaint item referred to the Tribunal on 26 October 2023, for the complaint to be heard concurrently with complaint CC 1749/2022. This complaint became CC 1333/2023. This complaint item is referred to in these reasons as complaint item 41; and

(c)a building service complaint consisting of one complaint item referred to the Tribunal on 30 April 2024, for the complaint to be heard concurrently with complaints CC 1749/2022 and CC 1333/2023. This complaint became CC 284/2024. This complaint item is referred to in these reasons as complaint item 42.

Each of the three proceedings is within the original jurisdiction of the Tribunal pursuant to the Home Building Contracts Act 1991 (WA) (HBC Act) and the BSCRA Act. It is accepted by the parties that each of complaint items 1 - 42 relates to a regulated building service performed by the respondent.[5]
[5] BSCRA Act, s 5(1); Building Services (Registration) Act2011 (WA), s 3 and Building Act2011 (WA), s 3.
The applicants filed and relied upon the following reports during the course of these proceedings:
(a)Visual Building Inspection Report - Plate Height dated 1 March 2019, by Lewis Flatt;[6]
[6] HB, pages 229 - 249.
(b)Visual Building Inspection Report - Roof Framework dated 18 March 2019, by Lewis Flatt;[7]
[7] HB, pages 250 - 266.
(c)Visual Building Inspection Report - Practical Completion dated 10 July 2019, by Lewis Flatt;[8]
[8] HB, pages 267 - 300.
(d)Builders Workmanship Report dated 26 May 2022 by Marios Theodorou, Inspector and Building Consultant;[9]
(e)Response to BEI Inspection Report dated 9 November 2022 by Marios Theodorou, Building Inspector/Consultant;[10]
(f)Suggested Detail for Spandrel Removal for 3 Bylong Street, Wellard, WA dated 26 August 2023 by Marios Theodorou, Building Inspector/Engineer and Building Consultant;[11]

(g)Inspection Report Updated Information/Order 2 dated 23 April 2024 by Marios Theodorou;[12]
(h)Updated information/Order 2 report dated 8 March 2024 by Marios Theodorou;[13]
(i)Quantity Surveying Report 3 Bylong Street, Wellard WA dated 13 March 2024 by Christopher Lee Jones, Quantity Surveyor;[14]
(j)Quantity Surveying Report 3 Bylong Street, Wellard WA dated 29 April 2024 by Christopher Lee Jones;[15] and
(k)Expert Conferral Follow-up dated 12 May 2024 by Marios Theodorou.[16]
[9] HB, pages 301 - 319.
[10] HB, pages 353 - 360.
[11] HB, pages 551 - 557.
[12] HB, pages 586 - 615.
[13] HB(2), pages 14 - 21.
[14] HB, pages 558 - 585.
[15] HB, pages 621 - 648.
[16] HB, pages 649 - 656.

The respondent filed and relied upon the following reports during the course of these proceedings:
(a)Independent Expert Report dated 17 February 2023, by Brian Gray, registered builder;[17] and
(b)Independent Expert Report dated 24 April 2024, by Mark Tilbury, registered builder.[18]
[17] HB, pages 786 - 963.
[18] HB, pages 1453 - 1800.
On 17 September 2024 the respondent filed and relied upon a report prepared by Mr Adam Gericke, a builder and an employee of the respondent, as to the cost of remedying a number of the complaint items.
The applicants and the respondent also filed and relied upon the following materials prepared by the Building Commissioner:
(a)Proposed Building Remedy Order Building Service at 3 Bylong Street, Wellard dated 5 October 2022 (PBRO).
(b)Revised Proposed Building Remedy Order Building Service at 3 Bylong St, Wellard dated 2 November 2022 (Revised PBRO).
The materials filed by the Building Commissioner, the applicants and the respondent were compiled into a hearing book (HB).
The Tribunal admitted the HB into evidence, with the exception of those parts of it which were inconsistent with the matters agreed by the expert witnesses in the Expert Joint Conferral Statement dated 7 May 2024.
The exception was made because some of the expert witness reports, particularly those of Mr Theodorou, contained opinions about a number of complaint items which were inconsistent with the agreement of the expert witnesses in the Expert Joint Conferral Statement (EJCS).
For reasons given in detail later in these reasons, the Tribunal found the effect of r 39B(6) of the State Administrative Tribunal Rules 2004 (WA) (Rules) in these proceedings is that those previous inconsistent expert opinions, with the exception of material referring to complaint item 2, are not to be admitted into evidence without the leave of the Tribunal. Consequently, with an exception as to complaint item 2, the Tribunal excluded this material from the HB.

The principles applicable to the determination of a building service complaint

The Tribunal in these reasons respectfully adopts:
(1)The principles applicable to the determination of a building service complaint set out by the Tribunal in Owners of Island Apartments Strata Plan 52597 and Pindan Pty Ltd [No 2] [2018] WASAT 2 (Pindan Pty Ltd) at [27] - [35]:
27The Tribunal has, pursuant to s 38 of the BSCRA Act power to make a building remedy order if it is satisfied that the regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory.
28The standard of 'proper and proficient' is higher standard of care than 'proper and workmanlike manner' or the reasonable care and skill of a tradesman or contractor.
29The building contract may be relevant to the proper and proficient as it 'defines what the builder was required to do, which informs the issue of workmanship'.
30The phrase 'not been carried out in a proper and proficient manner or is faulty or unsatisfactory' is a broad expression apt to cover a wide range of deficiencies in the construction of a building which can be taken into account.
31Manufacturers recommendations may be departed from if the builder otherwise acted in a proper and proficient manner. A product which is performing well, and is suitable for its application, cannot automatically be said to be faulty or unsatisfactory.
32A mere departure by a builder from its contractual obligations is insufficient to establish the work was not carried out in a proper and proficient manner or was faulty or unsatisfactory.
33Builders are not compelled to search for and install superior products over and above what is adequate for the intended purpose.
34Where the issue is not contractual, the Tribunal should be cautious in regards to ordering remedial work to be undertaken unless the applicant has demonstrated a genuine adverse effect by reason of the building work in question.
35A building service that complies with the BCA will not be found by the Tribunal to be faulty or unsatisfactory or to not to have been carried out in a proper and proficient manner except in exceptional circumstances.
(Footnotes omitted)
(2)The statements of Smith AJ (as her Honour then was) as to the proper construction of s 38 of the BSCRA Act in Gemmill Homes Pty Ltd v Sanders [2018] WASC 179 (Gemmill Homes) at [96], [102], [103], [106] - [111], [125] - [129], [133] and [134] as these are summarised in Deshmukh and Distinctive Building Services Pty Ltd [2024] WASAT 15 (Deshmukh) at [46] to [48]:
46Section 38 of the BSCRA Act gives the Tribunal the power to deal with a building service complaint referred to it by the Building Commissioner …
47In Gemmill Homes at [134], Smith AJ stated that if the Tribunal forms the opinion (is satisfied) under s 38(1)(a) of the BSCRA Act that the regulated building service which is the subject of a building service complaint has not been carried out in a proper and proficient manner or is faulty or unsatisfactory (the requisite opinion), the Tribunal is required to make a building remedy order (emphasis added). The Tribunal then has a discretion regarding a building remedy order it will make under the provisions of s 36(1) of the BSCRA Act. If the Tribunal does not form the requisite opinion, then, under s 38(1)(b) of the BSCRA Act, it may decline to make a building remedy order.
48In the case of a HBWC complaint, s 43(1)(a) of the BSCRA Act provides that the Tribunal may make a HBWC remedy order if it forms the opinion (is satisfied) that a HBWC remedy order is justified. The Tribunal then has a discretion regarding the HBWC order it will make under s 41(2) of the BSCRA Act. If the Tribunal does not form the opinion that a HBWC remedy order is justified then under s 43(1)(b) of the BSCRA Act it may decline to make the order (Footnote omitted).
(3)The observations as to the differing natures of building remedy orders under s 36(1)(a) and s 36(1)(b) of the BSCRA Act made by the Tribunal in Brooks and Gransden Building Company Pty Ltd [No 2] (Brooks) [2021] WASAT 86 at [14] to [17]:
14The nature of the BRO is an important consideration. The reason for this is because there is significant difference between a BRO made under s 36(1)(a) and that made under s 36(1)(b) or s 36(1)(c) of the BSCRA Act. The difference is that there are advantages to the owners if the Tribunal makes an order under s 36(1)(a) which are not available under s 36(1)(b) or s 36(1)(c). The advantages include that an order under s 36(1)(a) provides the owners with the added protection that if the remedial work is not performed, or is performed in a faulty or unsatisfactory manner, the owners may seek an order under s 51 of the BSCRA Act which effectively allows for the 'conversion' of the order requiring remedial work to be performed to a monetary order reflecting the costs of a third party performing that work.
15A further advantage of an order under s 36(1)(a) is that any ambiguity which may arise in relation to the issue of liability if the remedial work is itself faulty or unsatisfactory is avoided.
16Finally, an order under s 36(1)(a) may be advantageous because third party contractors are often reluctant to perform remedial works in respect of another builder's underlying work. It is therefore, often difficult to obtain reliable evidence on the costing of remedial work on a third party basis, and if that costing is provided by an independent expert, the expert is not available to do the remedial work (see Sanders and Gemmill Homes Pty Ltd [2017] WASAT 41 (Sanders and Gemmill) at [30] - [33]).
17There is also an advantage to the builder if the Tribunal makes an order under s 36(1)(a) which is not available under s 36(1)(b) and 36(1)(c) of the BSCRA Act. The builder can usually carry out remedial work at a cost less than would be charged by a third party contractor who would usually charge a premium for doing that work (see Nelson v Mardesic (1998) 22 SR (WA) 42 at [46].

Preliminary Issue - r 39B and r 39C of the State Administrative Tribunal Rules 2004 (WA)

Rule 39B(1) requires 'experts with a common or overlapping expertise to confer and to file a joint statement about matters such as the points on which they agree and disagree'.
On 15 March 2024, pursuant to r 39B, the Tribunal ordered the parties expert witnesses to engage in a conference of experts pre-hearing on 7 May 2024.
A typed copy of the EJCS signed by Mr Theodorou (an engineer engaged by the applicants), Mr Jones (a quantity surveyor engaged by the applicants) and Mr Tilbury (a builder engaged by the respondent) and dated 7 May 2024 was filed with the Tribunal on 14 May 2024.[19] The EJCS dealt with:
(a)the issues in the proceeding which are within the expertise of the expert witnesses (stated to be complaint items 1 - 42);
(b)the matters on which the expert witnesses agree (stated to be complaint items 1 - 4, 7 - 9, 11 - 16, 18 - 22, 24, 27 - 31, 33 - 35, 38, 39 and 41); and
(c)the matters on which the expert witnesses disagree (stated to be complaint items 5, 6, 10, 17, 23, 25, 26, 32, 36, 37, 40 and 42) and the reasons for any disagreement (which are discussed later in these reasons).
[19] HB, pages 1800 - 1811.
At the commencement of the final hearing the Tribunal heard from the parties as to whether it should admit the EJCS into evidence. The applicants objected to the EJCS being admitted into evidence. The respondent submitted that the r 39B(5) required the Tribunal to admit the EJCS into evidence.
After conferring, the Tribunal decided it would admit the EJCS into evidence. The Tribunal gave the following oral reasons for its decision.[20]
So the panel has conferred, and the issue we conferred upon was whether to admit the joint conferral statement into evidence, and the reason we considered doing that is rule 39B(5) of the rules. Rule 39B, sub-rule (5), says:
Unless the tribunal orders otherwise, it will admit the joint statement filed by the experts into evidence at the hearing of the proceeding.
When we considered this matter, we noted the objection made by Mr Griffin and Ms Geary, and their objection to the admission of the joint conferral statement of evidence is essentially based on two grounds. One is that the owner's expert[21], that is, Mr Griffin and Ms Geary's expert, changed his mind on several complaint items from the view that he had expressed in an earlier report or reports and the agreement he recorded in the joint conferral statement. Mr Griffin and Ms Geary say that as a result of that change of view they have lost confidence in their expert, and on that basis they say the tribunal should not admit the joint conferral statement into evidence.
The tribunal has carefully considered the words in section 39B, subrule (5), and it notes that there is a mandatory "will". It begins with the words, "Unless the tribunal orders otherwise, it will admit the joint statement". The tribunal's view is that unless there is good or sufficient reason why the tribunal should not admit the joint statement, it is required to admit the joint statement to evidence. We have therefore carefully considered whether there is good or sufficient reason not to admit the joint conferral statement. We have carefully considered the owner's submissions, and, in our view, those reasons in the submissions do not constitute good or sufficient reason.
This is because that outcome is, in a sense, an expected or possible outcome by a joint conferral statement. It is expected that experts will attend the joint conferral statement, that they will listen to each other's views, that they will be flexible in their thinking, and if they believe that their earlier opinion is incorrect or wrong for whatever reason, they will be obliged to change their mind and record that change of mind if it results in an agreement.[22] For these reasons we have determined that the joint conferral statement will be admitted into evidence.
[20] ts, 22, 11 July 2024.
[21] Mr Theodorou.
[22] Rule 39A of the Rules.

The Tribunal, pursuant to r 39C(1), then directed that the expert witnesses Mr Theodorou, Mr Tilbury and Mr Jones are to give their evidence at the final hearing concurrently and in accordance with r 39C(2). The Tribunal also directed the expert witnesses, in accordance with r 39B(6), that they are not to answer any question put to them by a party if the question seeks to adduce evidence inconsistent with the matters on which the expert witnesses agreed in the EJCS without leave from the Tribunal.
During the final hearing the Tribunal gave the parties leave under r 39B(6) to adduce evidence inconsistent with the expert witnesses agreement with respect to complaint item 2. This is because Mr Theodorou made the following note alongside his signature in the EJCS:[23]
[I] recently submitted a follow-up report concerning Items 2, 10, 32 and 36. Based on the report, [I] no longer agree that Item 2, was [adequately] repaired; hence would like this to be noted. [I] also would like to have noted that [I] agree with Chris concerning the hallway wall dimensions.
[23] HB, page 1806.
During the final hearing, the applicants sought leave under r 39B(6) to adduce evidence inconsistent with the balance of the matters on which the expert witnesses agreed in the EJCS. The reason advanced on each occasion was that the applicants had lost confidence in Mr Theodorou's opinions as to the agreed matters in the EJCS as these were inconsistent with opinions he had given in his earlier expert witness reports.
The decision of the Tribunal on each such application for leave by the applicants under r 39B(6) was to refuse leave, on the basis a change in opinion by an expert at a conference of experts under r 39B is not, in itself, a good or sufficient reason to grant leave under the rule.

Complaint items agreed by the expert witnesses in the EJCS

The statement in the EJCS with respect to complaint items 1, 3, 4, 7 - 9, 11 - 16, 18 - 22, 24, 27 - 31, 33 - 35, 38, 39 and 41 is that these items are 'Agreed by both expert witnesses not a defect requiring remediation'.[24] At the final hearing, on 19 September 2024, the Tribunal explored with Mr Theodorou and Mr Tilbury what they meant by this expression. Mr Tilbury said that the expression as used by him meant he was not satisfied that the respondent carried out the work in a manner that is not proper or proficient or is faulty or unsatisfactory. Mr Theodorou agreed with Mr Tilbury.
[24] 'Both expert witnesses' being Mr Theodorou and Mr Tilbury as Mr Jones' evidence was as to the cost of the remediation works, rather than as to whether the works required remediation.
The Tribunal is therefore satisfied that this expression, as it is used by the expert witnesses in the EJCS, means the experts witnesses were not satisfied that the respondent carried out a regulated building service in a manner that is not proper or proficient or is faulty or unsatisfactory.
The Tribunal then considered the opinions of the expert witnesses on the complaint items which are agreed by the expert witnesses as stated by them in the EJCS, which is primarily the expert witness report of Mr Tilbury dated 24 April 2024. However, as Mr Tilbury notes in his report, there is also evidence consistent with the agreed matters in the reports of other expert witnesses.
On considering Mr Tilbury's expert witness report with respect to each of the complaint items 1[25], 3[26], 4[27], 7 - 9[28], 11 - 16[29], 18 - 22[30], 24[31], 27 - 31[32], 33 - 35[33], 38[34], 39[35] and 41[36] the Tribunal is satisfied and so finds that Mr Tilbury is qualified to give evidence on these complaint items, and that his evidence as to them should be accepted by the Tribunal.
[25] HB, pages 1473 - 1480.
[26] HB, pages 1486 - 1488.
[27] HB, pages 1489 - 1493.
[28] HB, pages 1520 - 1544.
[29] HB, pages 1554 - 1593.
[30] HB, pages 1603 - 1641.
[31] HB, pages 1651 - 1655.
[32] HB, pages 1676 - 1705.
[33] HB, pages 1716 - 1733.
[34] HB, pages 1763 - 1767.
[35] HB, pages 1768 - 1772.
[36] HB, pages 1776 - 1783.
This finding, in conjunction with the Tribunal's consideration of the passages referred to above in Pindan Pty Ltd [No 2], Gemmill Homes and Deshmukh and the matters agreed in the EJCS, has the consequence that the Tribunal is itself not satisfied that the respondent carried out these regulated building services in a manner that is not proper or proficient or is faulty or unsatisfactory.
Accordingly, the Tribunal will under s 38(1)(b) of the BSCRA Act decline to make any building remedy orders with respect to complaint items 1, 3, 4, 7 - 9, 11 - 16, 18 - 22, 24, 27 - 31, 33 - 35, 38, 39 and 41 and it will dismiss these complaint items.

Complaint items not agreed by the expert witnesses in the EJCS

The expert witnesses's statement in the EJCS with respect to complaint items 5, 6, 10, 17, 23, 25, 26, 32, 36, 37, 40 and 42 is that these items are not agreed by the expert witnesses. The expert witnesses provided reasons for their disagreement in the EJCS and in their various reports, as well as giving oral evidence to the Tribunal on these complaint items. For the reasons given above, it also became apparent during the final hearing that the expert witnesses were not in agreement as to complaint item 2, and so the expert witnesses also gave oral evidence about that complaint item.
When considering these complaint items, the Tribunal adopted and applied the principles relevant to determining a building services complaint which are set out above.
The Tribunal will now consider each of these complaint items in turn.

Complaint item 2

Complaint item 2 is:[37]
South elevation barge and capping detail at the rear edge of the south elevation eaves.
… the material that has been used to construct the barge is already blistered and split suggesting that the material used is unsuitable for external use …
… the applicants would like the builder to repair and neatens [sic] up the barge and capping to look neat and presentable, instead of devaluing the property the way it has been installed.
[37] HB, page 28.
It is clear from the evidence before Tribunal that the builder has previously accepted that the finish of the barge is not proper or proficient or is faulty or unsatisfactory, and it has remedied this work on four earlier occasions.[38]
[38] HB, page 1482.
Mr Tilbury in his report dated 24 April 2024 said that the respondent 'should return and rectify the defective work on the barge in a proper and proficient manner making good all affected surfaces.[39] In his oral evidence Mr Tilbury said that the respondent had, since his report, completed the recommended remediation works and there is now a satisfactory finish on the barge.[40]
[39] HB, page 1482.
[40] ts 74, 12 July 2024.
It is the evidence of Mr Theodorou in his report dated 8 March 2024[41] and the oral evidence he gave at the final hearing that, some months after the fourth remediation works and about a month after Mr Tilbury's last inspection of the barge, a crack appeared on the barge paint finish which is visible from a normal viewing position at a distance of 1.5 metres.[42]
[41] HB(2), page 16.
[42] ts 74, 12 July 2024.
Through discussion between Mr Tilbury and Mr Theodorou the Tribunal understood that:[43]
(1)A proper and proficient paint finish on the barge should remain in good condition for about 5 years, after which time the barge should be re-painted;
(2)The barge consists of two pieces of timber and so is prone to cracking the finish on the barge at the join between the timbers;
(3)The barge is not a 'serious structural component of the house'; and
(4)Given the recurring nature of the defect the most durable solution is to place a scribe over the barge. This involves several steps; removing the flashing, placing a scribe over the barge, replacing the flashing and touching up the work.
[43] ts 90, 12 July 2024.
After considering the evidence of Mr Tilbury and Mr Theodorou and itself inspecting the photographs identified by them the Tribunal is satisfied and so finds that the paint finish on the barge should have remained in good condition for a period of up to 5 years, but that the crack in the barge at the join of the two timbers identified by Mr Theodorou shows that it is deficient as it remained in good condition only for a matter of months.
Further, as the respondent has remedied the finish of the barge on four prior occasions without resolving the deficiency, the appropriate remedy is not to again touch up the finish but to deal with the cause and effect of the deficiency, which is best done by covering the barge with a scribe.
It is the evidence of Mr Jones that the cost of installing a scribe on the barge would be around $500 to $600.[44] It is the evidence of Mr Gericke that the cost or replacing the barge and flashing inclusive of paint would be $250.[45]
[44] ts 89, 12 July 2024.
[45] Gericke report.
However, in cross-examination by the applicant, Mr Gericke accepted that the labour component of the work was costed by him at an hourly rate which only a volume builder such as the respondent could obtain. In response to Mr Gericke's costing, Mr Jones' said that an owner could expect to pay twice the hourly labour rate that the respondent would pay, although this difference would be reduced for work which extended over many hours.
For these reasons, the Tribunal is satisfied and so finds that the finish on the barge is a regulated building service performed by the respondent which is faulty or unsatisfactory, that the appropriate remedy is to place a scribe over it in the manner described, and that the cost to the applicants of this work will be $500.
The Tribunal then considered which building remedy order it should make under s 36(1) of the BSCRA Act in respect of complaint item 2.
In order to resolve this issue, the Tribunal has considered the statements of her Honour Smith AJ in Gemmill Homes at [133] to [135]:
133It 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.
134If the requisite opinion is formed, the Tribunal is required to make a building remedy order. It then has to exercise the discretion conferred in s 36(1) to make a particular order in the form of s 36(1)(a), (b) or (c). Thus, no 'right' or requirement on a party to a complaint to elect arises.
135I do, however, agree with the point made in Nelson that the Tribunal has no power to compel an owner or require an owner or a person who has the right to control entry to a property to allow access to a site to enable an amount of work to be carried out in accordance with a building service work order. If there is evidence that such access was likely to be denied, then that would be a relevant matter of fact that the Tribunal could take into account.
The Tribunal respectfully also adopts the observations of the Tribunal in Brooks as to the differing natures of orders under s 36(1)(a) and s 36(1)(b) of the BSCRA Act, as well as those matters that the Tribunal identified as relevant to the Tribunal's exercise of the discretion conferred on it in s 36(1) of the BSCRA Act as this is explained in Hippydayze Pty Ltd and Mener Group Pty Ltd [2019] WASAT 92 (Hippydayze) at [126]:
… whether there has been an irretrievable breakdown in the relationship between the parties (Trengove and Celebration Nominees Pty Ltd [2012] WASAT 65 at [36]); whether an owner has justifiably lost confidence in the workmanship and skill of the respondent (Nelson v Mardesic (1998) 22 SR (WA) 42); whether the respondent has attempted to remedy the regulated building service previously unsuccessfully and whether the respondent has refused to perform remedial work when invited to do so[.]
When considering this issue, the Tribunal is mindful of statements made by both the first and the second applicants during the course of the hearing that they did not wish the respondent to return to their home to perform any remedial works, for example:
(1)The first applicant on 11 July 2024 said:[46]
GRIFFIN, MR: … We basically don't want the builders to come back.
… This is dragged on long enough where the builders come back multiple times to try to fix multiple defects and obviously the result is let's come back again, let's come back again.
… It's just, for example, some of these items will be the third and fourth attempt.
(2)The second applicant said on 19 September 2024 '… I don't want the builder back'.[47]
[46] ts 4, 11 July 2024.
[47] Recording 19 September 2024 at 10:15 am.
The Tribunal is also mindful that the respondent, in relation to a different complaint item, itself proposed that the appropriate building remedy order should be an 'order to pay' rather than an order it perform remedial works.[48]
[48] ts 19, 11 July 2024.
From the above statements of the applicants, it is clear to the Tribunal that they would prefer the Tribunal make a building remedy order that the respondent pay them the costs of remedying this complaint item under s 36(1)(b) of the BSCRA Act, rather than it order the respondent to perform works to remedy the item under s 36(1)(a). It is also clear to the Tribunal that the builder has the same preference as the applicants.
The Tribunal is also satisfied and finds that as the respondent has unsuccessfully attempted to remedy the barge on four earlier occasions that the applicants have justifiably lost confidence in the workmanship and skill of the builder.
The Tribunal is satisfied and finds for these reasons there has been an 'irretrievable breakdown in the relationship between the parties' such that it is the clear mutual preference of the parties that the respondent does not again attend the applicants' home to perform remedial works.
Consequently, the Tribunal is satisfied that it is proper for the Tribunal to make a building remedy order against the respondent under s 36(1)(b) of the BSCRA Act, the order being that the respondent pay to the applicants the costs of remedying complaint item 2 in the amount of $500.

Complaint item 5

Complaint item 5 is:[49]
External face brickwork: Some of the [external] brickwork shows mortar smears and smudges visible from a normal viewing position. Not all of the joints are racked evenly, or at all. There are numerous voids and holes in the mortar, that are not weep holes …
The remedy sought is the applicants agrees with the BEI's recommendation to allow the builder to first attempt to clean up all the brickwork and mortar joints.
[49] HB, page 29.
The BEI Inspectors PBRO stated:[50]
It is the BEI's considered opinion that the finish of brickwork mortar, particularly the holes and excess cement on the brickwork, is considered faulty and unsatisfactory.
[50] HB, page 325.
Both Mr Tilbury and Mr Theodorou in their oral evidence both accepted that mortar smears on brickwork constitute a defect.[51] The issue with respect to this complaint item is whether the builders attempt to remedy the brickwork by removing the mortar smears has been successful.
[51] ts 97, 12 July 2024.
Mr Tilbury in his report dated 24 April 2024 found the external brickwork is now of 'a generally good standard and within the tolerances established by the 'Western Australia Guide to standards and tolerances 2019'.[52] In his oral evidence Mr Tilbury said:[53]
TILBURY, MR: Well, on the - on the day, we were out the brickwork, from normal viewing distance, appeared to be fine. It was clean. I believe they had been - had been back, the builder has been and done - carried out remedial works cleaning the bricks. And, from the photos, and what we saw, everything looked clean, and - and we could not identify any - any marks or mortar stains or anything like that. So I don't believe there's a defect there.
[52] HB, page 1498.
[53] ts 90, 12 July 2024.
Mr Theodorou in his oral evidence said:[54]
THEODOROU, MR: I agree that the builder has done a fair job. You - you – if you look carefully, you see some - some, but compared to what it was, it was - you know, they removed probably 95 plus percent of what was there. So I do agree that they made a fair attempt to clean the brickwork.
[54] ts 90, 12 July 2024.
Mr Theodorou then identified about 2m² of the external brickwork that still needed to be cleaned. Mr Theodorou marked these areas on a diagram of the home. This diagram was then admitted into evidence as Exhibit 4.[55] Mr Jones costed the cleaning of 2m² of brickwork at $350.[56] It is the evidence of Mr Gericke that the cost of labour to clean 2m² of brickwork is $120.[57] However, the Tribunal, for the reasons given above, accepts that an owner could expect to pay twice the hourly labour rate that the respondent would expect to pay. The Tribunal also observes that Mr Gericke did not include the cost of materials or GST in his costing, whereas Mr Jones did include both the cost of materials and GST in his estimation.
[55] ts 95, 12 July 2024.
[56] ts 91, 12 July 2024.
[57] Gericke report.
For these reasons, as well as relying on guide 3.07 of the 'Western Australia Guide to standards and tolerances',[58] the Tribunal is satisfied and so finds that the areas of the external brickwork mortar work identified by Mr Theodorou is a regulated building service performed by the respondent which is faulty or unsatisfactory, that the appropriate remedy is to clean the brickwork and that the cost to the applicants of this work is $350.
[58] 'Unless documented otherwise, masonry faces are defective if they are not cleaned and free of excess mortar'.
The Tribunal then considered which building remedy order it should make under s 36(1) of the BSCRA Act in respect of complaint item 5.
For the reasons given above with respect to complaint item 2, the Tribunal is satisfied it is proper for the Tribunal to make a building remedy order against the respondent under s 36(1)(b) of the BSCRA Act, the order being that the respondent pay to the applicants the costs of remedying complaint item 5 in the amount of $350.

Complaint item 6

Complaint item 6 is:[59]
Joints to Brickwork; especially sliding doors: Unsightly inconsistent joint thicknesses visible from a common normal viewing position.
The remedy sought is the applicants agrees with the BEI's recommendation to allow the builder to first attempt to rectify.
[59] HB, page 29.
The BEI Inspectors PBRO report stated:[60]
The respondent, in a letter dated 16 August 2022, states, "we agree to address Alfresco sliding door lintel and Laundry sliding door sill".
As the respondent has agreed to remedy the lintel over the sliding door and the sill of the laundry sliding door, the BEI will offer no further comment.
[60] HB, pages 325 - 326.
The Tribunal notes that this agreed remedial work has not been performed.
Mr Tilbury in his report dated 24 April 2024 found 'the brickwork and measurements are considered to be installed in a proper and proficient manner, and the deviation [of thicknesses of mortar] did not adversely affect the safe use or reasonable amenity of the building'.[61] The relevant tolerances in the 'Western Australia Guide to standards and tolerances', Table 3.04 item H, is a deviation from documented thickness of bed joint of 3 millimetres and a minimum perpend thickness of 5 millimetres.
[61] HB, page 1519.
In his oral evidence Mr Tilbury stated he did find one join on the righthand side of the sill to the laundry that was smaller than the permitted joint size of 5 millimetres. That joint was 3 millimetres. Nonetheless, in his opinion, this single undersized joint was not unsightly.
Mr Theodorou in his oral evidence distinguished between external brickwork which was visible when the house was normally used, and brickwork which was not. In his opinion a higher standard was required for brickwork which was ordinarily visible to the applicants and brick work which was not. The area that concerned Mr Theodorou was the sill to the al fresco area, as this was visible from the al fresco area. He said with respect to this sill:[62]
THEODOROU, MR: I have an opinion that even though there may be one joint, if you have one joint five millimetres and the one right next to it is 20, even if they are within tolerance, it makes it unsightly. That's my opinion. So, you know, we do have cases where it's marginally, like, what I said before about the sliding door to the alfresco, not the one - because when it's on the side of the house, I am less concerned about it, personally. But when it's at the al fresco area where people sit, then you see one joint five millimetres, and 300 millimetres further down you see a joint that's 20 millimetres, in my opinion that's unsightly, and it should be considered a defect.
[62] ts 98, 12 July 2024.

Mr Theodorou said the joint could be remedied by removing and replacing the brick.[63] Mr Jones estimated the cost of these works to be $1,000.[64] Mr Gericke estimated the cost of removing and replacing the brick to be $159.22 plus GST,[65] however, in cross-examination by the applicants Mr Gericke conceded that his costing was based on the work being performed by a maintenance contractor. The Tribunal also notes Mr Jones' evidence that an owner would expect to pay twice the hourly rate that the respondent would, and that Mr Gericke did not include the cost of materials or GST in his costing whereas Mr Jones did include both the cost of materials and GST in his estimation.
[63] ts 99, 12 July 2024.
[64] ts 99, 12 July 2024.
[65] Gericke report.
With respect to other areas of the external brickwork Mr Theodorou said:[66]
THEODOROU, MR: What it does say - I mean, we check the thicknesses. I - like I said, you could have a thickness of five millimetres, which is with intolerance, and right next to it at 20 millimetres. So the brickwork is a little bit - the brick isn't perfectly horizontal. It's twisted a little bit, you can see, but within [tolerances]. It looks ugly, and I do have to - I do have to give my opinion on this. This is, by no means, the best brickwork finish I've seen. I - in my opinion, it's poorly done. Although it may be [within tolerances] in many areas. So that's my opinion. [67]
[66] ts 105, 12 July 2024.
[67] The transcript contains the words 'with intolerances', which is plainly not correct.
Mr Tilbury was taken by the applicants to 86 photographs of the exterior walls of the home and was asked to identify mortar joints 'that you believe has been raked consistently'. Mr Tilbury responded to this question by saying:[68]
TILBURY, MR: Okay, what - what I've seen there is - I believe it's still - they're all within the tolerances for the widths - for the guides to tolerances. There are a couple that I can see - a couple of minor voids and a little bit of a mortar over onto a brick on a couple out of the 86-odd photos or whatever it is[.]
[68] ts 104, 12 July 2024.
After considering the evidence of Mr Tilbury and Mr Theodorou and itself inspecting the photographs identified by the applicants, the Tribunal is satisfied and so finds that while the external brickwork contained many inconsistent mortar joint widths, that nonetheless the joints are within the permitted tolerances. Accordingly, the Tribunal is not satisfied that the brickwork is a regulated building service carried out by the builder in a manner that is not proper or proficient or is faulty or unsatisfactory.
The Tribunal is, however, satisfied and finds that the single brick joint identified by Mr Tilbury and Mr Theodorou on the al fresco sill is a regulated service carried out by the respondent that is not proper or proficient or is faulty or unsatisfactory.
For the reasons given above with respect to complaint item 2, the Tribunal is satisfied it is proper for the Tribunal to make a building remedy order against the respondent under s 36(1)(b) of the BSCRA Act, the order being that the respondent pay to the applicants the costs of remedying complaint item 6 in the amount of $1,000.

Complaint item 10

Complaint item 10 is:[69]
Garage piers near the Automatic sectional door: The garage piers next to the front automatic sectional door, deviates from vertical by 1.6, which is equivalent to 28mm deviation every 1,000mm; hence significantly outside allowable tolerance.
The remedy sought is the applicants wants these pillars fixed, as besides being defective and just looking plain ugly, these are actually load bearing pillars and this is a big concern to the applicants. If the builder doesn't rectify then the applicants seek restitution in the form of compensation.
[69] HB, page 30.
The BEI Inspector attended the home and inspected the garage piers closest to the front garage door. The BEI Inspector in the PBRO stated:[70]
The BEI used a 2.1m level that showed that the pier to the garage was found to be within these tolerances. This was agreed on site by the independent building inspector.
It is the BEI's considered opinion that as there is no evidence of faulty and unsatisfactory workmanship, it is recommended the complaint item be dismissed.
[70] HB, page 328.
Mr Tilbury in his report dated 24 April 2024 agreed with the BEI inspector's findings.[71] In his oral evidence Mr Tilbury said that he inspected the garage piers closest to the garage door at several locations using both a 2.1 metre straight edge and digital level and found the piers were within tolerance.[72]
[71] HB, page 1549.
[72] ts 111, 12 July 2024.
Mr Theodorou in his report dated 23 April 2024 stated he inspected three piers in the garage and found the second pier 'exceeds the acceptable tolerance'.[73] In his oral evidence Mr Theodorou opined that even though this pier is outside of tolerance it is structurally sound and does not require remediation.[74]
[73] HB, page 589.
[74] ts 111, 12 July 2024.
After considering the evidence of Mr Tilbury and Mr Theodorou and itself inspecting the photographs identified by these witnesses as well as the photographs identified by the applicants, the Tribunal is satisfied and so finds that the brick pier next to the front automatic sectional door does not deviate from the permitted tolerances.
The Tribunal also finds that the second brick pier identified by Mr Theodorou is not the pier adjacent to the garage door, but is a pier about 2 metres inside the garage.[75] This raises an issue as to whether this pier is within the complaint referred by the Building Commissioner to this Tribunal.
[75] See photograph HB, page 1546.
However, given Mr Theodorou's opinion that the pier is structurally sound and does not require remediation the Tribunal finds that, even if the pier was within the complaint referred to this Tribunal, it would not be satisfied that the respondent carried out these regulated building services in a manner that is not proper or proficient or is faulty or unsatisfactory.
The consequence of either finding is the Tribunal will under s 38(1)(b) of the BSCRA Act decline to make building remedy order with respect to complaint item 10 and it will dismiss the complaint item.

Complaint item 17

Complaint item 17 is:[76]
Smoke alarm in corridor servicing main bedroom & front of house: Part of smoke alarm within 300mm dead air space.
The remedy sought by the applicants is the builder rectifies to be in accordance with the applicable NCC or pays the applicants restitution in the form of compensation so the applicants can hire another tradie to rectify.
[76] HB, page 32.
It is not controversial that the builder installed the smoke alarm in the corridor to bedrooms 2 and 3, 293 millimetres from a junction of the ceiling and a wall, and that the installation was pursuant to a Certificate of Design Compliance dated 16 November 2018.[77] [78]
[77] HB, page 738 and ts 12 July 2024.
[78] HB, pages 1594 - 1598: Mr Tilbury in his report dated 24 April 2024 provided photographs which show the closest edge of the smoke alarm is 293 millimetres from the junction of the ceiling and wall and that the active component of the alarm is 330 millimetres from that junction.
It is also not controversial that the National Construction Code 2016 (as amended in 2019), would now require this smoke alarm to be no closer than 300 millimetres from a junction of a ceiling and a wall. The issue with respect to this complaint item is whether on 16 November 2018 the National Construction Code required it be placed no closer than 300 millimetres from a junction of a ceiling and a wall.
The BEI Inspector in the PBRO stated:[79]
It is the BEI's considered opinion that as the measurement was not mandated at the time of the CDC issue, the smoke detector was considered compliant. Therefore, it is recommended the complaint item be dismissed.
[79] HB, page 335.
Mr Tilbury says in both his report and in his oral evidence said that there was no minimum distance prescribed in the requirements applicable on 16 November 2018.[80][81] Mr Theodorou in his oral evidence says he found a code dated 1987 which specified a minimum distance of 500 millimetres, which he infers means that on 16 November 2018 the minimum distance was either 500 millimetres or 300 millimetres.[82]
[80] ts 129, 12 July 2024.
[82] ts 129, 12 July 2024.
The Tribunal accepts the opinion of the BEI Inspector and Mr Tilbury that 'as the measurement was not mandated at the time' of the issue of the Certificate of Design Compliance on 16 November 2018, the smoke alarm when installed was not required to be installed no more than 300 millimetres from the junction of a ceiling and a wall.
As there is no evidence that the smoke alarm has been placed in a 'dead space' or that its placement otherwise negatively affects its intended performance (and that in any event that the active component of the alarm is 330 millimetres from the junction of the ceiling and wall), the Tribunal is not satisfied that the respondent carried out this regulated building service in a manner that is not proper or proficient or is faulty or unsatisfactory.
The consequence of this finding is the Tribunal will under s 38(1)(b) of the BSCRA Act decline to make building remedy order with respect to complaint item 17 and it will dismiss the complaint item.

Complaint item 23

Complaint item 23 is:[83]
Waterproofing of bathtub/ wall junction: According to the council, the waterproofing at the bath/wall junctions does not adequately address performance requirement P2.4.1 Wet Areas. It appears that the only action the builder took to comply with the said performance requirement is to use a flexible sealant, which is not sufficient to comply with the deemed to satisfy construction methods depicted in AS3740 figure 3.2(a)-(c)
Council has directly ordered builder to comply with shire by-laws.
The remedy sought by the applicants is the builder complies with mandatory rectification with both the NCC and Council regulations. The applicants also request compensation for inconvenience and the overall deceptive nature of how the builder has handled this situation. Especially how the builder falsified or fabricated information with rectifying the performance solution submitted to the Council to obtain the permit and then never incorporated the conditions of the building permit when constructing the dwelling.
[83] HB, page 34.
The BEI Inspector provided the following background to this complaint item, which it is useful to set out in full:[84]
The respondent in response to the complaint item found in a letter dated 22 June 2021 received by Building & Energy, 1 September 2022 in attachment 9, states, "The bath has been installed with our Engineers Performance Solution, this has also been accepted and certified by a private certifier. Please see attached detail for your information. Although this has not been accepted by Kwinana, it has been in all other shires except Kwinana. To date we have constructed thousands of homes with no failures/issues with this detail. The work to alter this on site now is not justifiable given the way it is installed is fit for purpose".
The BEI contacted the City of Kwinana to obtain clarification on the issue and, on 12 September 2022, received an email which stated, "During the City's Building assessment process the officer assessing the application informed the builder that the City does not accept the bath/wall junction performance solution and other performance solutions that were also submitted with the original building application, the City's Building departments recommends that they comply with the NCC Deem to satisfy provision. Which they amended their application and removed the performance solutions. During and inspection at the above address the City's Building Officers noted that the builders have used the performance solution design for the bath/wall junction. Please see below why the City's Building Department do not accepted this performance solution:
BATH/WALL JUNCTION
1.The proposed treatment of the wall/bath junction and its comparison to the perimeter flashing treatments for floors is misleading. The types of junctions referenced from the Australian Standard are for perimeter flashings only.
2.The definition from AS3740 states Flashing, Perimeter - "A flashing used at the floor-wall junction." These wall-floor junctions have additional waterproofing measures in addition to the bead of sealant e.g. a wall to floor junction will have a bond breaker, a waterproof membrane and water resistant surface linings all culminating at the junction and then sealed with a bead of sealant.
3.The performance solution for the bath/wall junction doesn't adequately address performance requirement P2.4.1 Wet Areas. The whole performance solution and construction detail is reliant upon a bead of "flexible sealant" to prevent water penetrating behind the bath edge, linings and into concealed spaces. Besides being a poor construction detail the proposed detail will not provide longevity of life for the home owner. The building components around this detail will be subject to differential settlement and expansion and contraction resulting in the home owner having to replace the sealant and maintain the joint for eternity. The downturn bath edge sitting proud of the wall linings will effectively trap any water between the two components and funnel water penetration into the concealed space. Once water enters the concealed space behind the bath it will be absorbed by all the porous building components in your proposed construction detail. With no capability for a visual inspection in this concealed space water will continue to accumulate until a building component shows signs of failure or water saturation and/or deadly fungi become present due to the continual moisture content in the concealed space.
4.The deemed-to-satisfy construction methods depicted in AS3740 figure 3.2(a) - (c) all have secondary water penetration prevention besides the waterproof sealant. This is either the vertical upstand lip of the bath recessed into the wall or a water stop behind the sealed bath down turned edge on inserted baths. Secondary to this is the high frequency of wet area failures where the deemed to-satisfy construction methods haven't been sufficient. This is more than likely attributable to poor installation technique and not a problem with the detail. The proposed alternative construction detail offers no secondary water penetration prevention, is reliant on a bead of sealant and coupled with poor workmanship the likely hood of the sealant failing and water penetrating behind the bath edge in the life of the dwelling is very high.
[84] HB, pages 742 - 743.
The BEI Inspector believed that, due to the above information, the respondent was aware of the Council's requirements and that the performance solution proposed by the respondent was not acceptable. The fact the respondent changed the installation method on the CDC application to obtain the building permit, and that it then carried out works contrary to the building permit shows, in the BEI Inspector's opinion, that the works are faulty and unsatisfactory.
Mr Tilbury in his report dated 24 April 2024 noted that there are no signs that the bath junction is currently failing. Mr Tilbury also noted that as at the date of his report he is informed by the respondent that the City of Kwinana has changed its position and is now accepting the method of installation used for this bath.[85]
[85] HB, page 1648.
Finally, Mr Tilbury found 'there was a separation of the sealant at the bath/wall junction near the shower screen. All other junctions appear solid with no signs of failure or movement. There is the potential that the remediation of this one junction, inclusive of associated support, may provide an adequate solution'.[86]
[86] HB, page 1642.
Mr Theodorou in his report dated 23 April 2024 stated it was his understanding that 'the waterproofing at the bath/wall junction does not adequately address performance requirement P2.4.1 Wet Areas. It appears that the only action the builder took to comply with the said performance requirement is to use a flexible sealant, which is not sufficient to comply with the deemed to satisfy construction methods depicted in AS3740 figure 3.2(a)-(c)'. He then stated, 'The builder needs to comply with the building codes as well as the with the rules of the local council; hence must carry out the mandatory rectification to comply with both the NCC and Council regulations'.[87]
[87] HB, page 594.
The applicants called Mr Brian Cameron, Manager for Building Services at the City of Kwinana, to give evidence at the final hearing. Mr Cameron's oral evidence confirmed the communication quoted by the BEI Inspector set out above.[88]
[88] ts 51, 11 July 2024.
Mr Cameron in his evidence said that at the time the respondent submitted the City of Kwinana a Form BA13 'Application for building approval certificate', the City held the view that performance solutions for the bath/wall junction were causing concern 'in the industry around the level of content and suitability of these performance solutions … '. He said this was because 'that probably the number one complaint nationally, not just in Western Australia, is waterproofing failures. So, there was concerns, and that's why we felt the city had to cross its T's and dot its I's in relation to when we accept a performance solution and when we don't'.[89]
[89] ts 52, 11 July 2024.
Finally, Mr Cameron said that the City of Kwinana has now changed its position and that the building performance solution the respondent had proposed for the bath/wall junction would now be acceptable to the City.[90]
[90] ts 52, 11 July 2024.
Mr Tilbury in his oral evidence said that as the City of Kwinana would now approve the performance solution by which the bath was actually installed, that the bath requires no remediation except for a new bead of sealant at the bath/wall junction near the shower screen.[91] He also said that the separation of the sealant at the bath/wall junction near the shower screen could be caused by a breakdown due to the use of cleaning agents, or that it may have been pulled out.[92]
[91] ts 135 - 136, 12 July 2024.
[92] ts 139 - 140, 12 July 2024.
Mr Theodorou in his oral evidence said 'if you were to redo [the bath] now, you would make sure that it meets the codes that are now. You wouldn't go back to the codes.' He also said that separation of the sealant at the bath/wall junction near the shower screen was unlikely to be caused by cleaning agents and was most likely caused by 'some movement … sufficient to crack to - to break the waterproofing seal, so water can actually penetrate and get to the other side of the wall'.[93]
[93] ts 141, 12 July 2024.
The Tribunal questioned both Mr Tilbury and Mr Theodorou as the relative advantages and disadvantages of the deem to comply installation method and the performance solution method. Mr Tilbury told the Tribunal that the advantage of the deem to comply method is that this has two means of preventing water from moving into the bath/wall junction, a silicon seal and an additional water stop barrier behind that seal, whereas the performance solution has only the silicon seal.[94] Mr Theodorou said:
THEODOROU, MR: Well, in my opinion, waterproofing is - is an important function. So it has to perform. So if the existing solution, with only one seal, and that seal cracks, can allow water, in my opinion, that's not good enough, and, you know, when - when we talk about acceptable solutions, I can give you many examples where builders no longer do things that are very clearly stated in the building codes purely because they stopped doing them, and somehow it became acceptable practice.
Nothing to do with this, so we're not going to discuss it. But it doesn't mean, just because they do it, and it has become an acceptable practice, that it should be acceptable.
[94] ts 142 - 143, 12 July 2024.

The Tribunal also questioned both Mr Tilbury and Mr Theodorou as to whether the separation of the seal at the bath/wall junction near the shower screen indicates a problem with the installation of the bath. Mr Tilbury said he did not think so, as he thought that the separation of the seal was to 'the expansion and contraction between different materials, that - that would - would happen in - in whatever way you constructed it'.[95] Mr Theodorou said:[96]
THEODOROU, MR: Well, the deemed-to-satisfy solution, effectively, says you've got to stop water from seeping through. I mean, effectively, that's what it says. This is a bathtub. People will put warm water in it, cold water in it, so you - you will get expansion/contraction. So whatever solution is used has to allow for that. That's my opinion. So I don't think this is a problem of the foundation moving. I don't think it's - I think it's to do with expansion, contraction.
I didn't study too carefully to see what the size of the cracks are. Like I said, I always believed that this was something that was going to be remedied. If you're going to rebuild the bathroom, then you do it based on a solution that's acceptable to everyone. So I didn't look at it carefully, but if the crack is allowing water to get through, in my opinion, it's not performing.
[95] ts 143, 12 July 2024.
[96] ts 143 - 144, 12 July 2024.
When considering this issue, the Tribunal had regard to the opinion of the City of Kwinana that the adequacy of the performance solution method of installing the bath 'offers no secondary water penetration prevention, is reliant on a bead of sealant and coupled with poor workmanship the likely hood of the sealant failing and water penetrating behind the bath edge in the life of the dwelling is very high'.
The Tribunal accepts the opinion of Mr Theodorou, who is an engineer, that the separation of the seal at the bath/wall junction near the shower screen indicates that there is problem with the quality of the workmanship in the installation of the bath, as normal use of the bath has caused this separation which has allowed water to then penetrate into the cavity under the bath. The Tribunal does not accept the opinion of Mr Tilbury that this separation may have been caused by cleaning chemicals or that it may have been pulled out.
For these reasons, the Tribunal is satisfied and so finds that merely replacing the sealant on this junction is insufficient, as it does not remedy any damage or fungal growth that may have already occurred, and in any event, it is more likely than not that the separation of the seal from the bath will, with ordinary use, simply recur. While the Tribunal accepts that there is no indication at this time that the sealant over the wall/bath junction has similarly separated, this rapid failure of the bath/wall junction near the shower screen is in itself sufficient to justify the removal and re-installation of the bath.
Mr Jones in his reports dated 13 March 2024 and 29 April 2024 said that the cost to the applicants of re-installing the bath using the method by which it was installed is $1,782.00.[97] In his oral evidence Mr Jones stated that the cost of re-installing the bath in accordance with the deemed to comply method, which would require the bath to be set back 100 millimetres from its current position, would be significant as this would involve works to demolish and replace some fixtures in the bathroom such as the shower hob and all tiling. Mr Jones costed this in his reports at $6,600.83.
[97] HB, pages 569 and 629.
Mr Gericke costed the works at $850. The Tribunal again, however, notes Mr Jones' evidence that an owner would expect to pay twice the hourly rate that the respondent would, and that Mr Gericke did not include GST in his costing whereas Mr Jones did.
After considering the evidence of Mr Tilbury and Mr Theodorou and itself inspecting the photographs referred to by them, the Tribunal is satisfied and so finds that the installation of the bath is a regulated building service performed by the respondent which is faulty or unsatisfactory, that the appropriate remedy is to remove the bath and reinstall it in by complying with the approved plans or an alternate method approved by the permit authority.
As the City of Kwinana will now accept the performance solution method for the installation of the bath, the Tribunal finds that the proper cost to remedy the bath is the cost of re-installing it in accordance with the performance solution, which is $1,782.
The Tribunal then considered which building remedy order it should make under s 36(1) of the BSCRA Act in respect of complaint item 23.
For the reasons given above with respect to complaint item 2, the Tribunal is satisfied it is proper for the Tribunal to make a building remedy order against the respondent under s 36(1)(b) of the BSCRA Act, the order being that the respondent pay to the applicants the costs of remedying complaint item 23 in the amount of $1,782.

Complaint item 25

Complaint item 25 is:[98]
Shower floor waste: Installed damaged by builder - reported during warranty period.
The remedy sought by the applicants is the builder agrees if the shower floor waste just doesn't have dirt on it, then the builder will replace. If it is just dirt, the owner will drop the pursuit of this issue. Otherwise, the applicant's ask the builder to pay retribution in the form of compensation and the owners will have the shower floor waste repaired through other means.
[98] HB, page 35.
The BEI Inspector in the PBRO report stated:[99]
At the Building and Energy inspection from a 'normal viewing position' the grate does have what appear to be a scale or some sort of damage. However, the BEI cannot determine when or what has caused the damage.
It is the BEI's considered opinion that as there is no evidence of faulty and unsatisfactory workmanship on the respondent's behalf, it is recommended the complaint item be dismissed.
[99] HB, page 744.
Mr Tilbury in his report dated 24 April 2024 said that there is no evidence the damage to the shower floor waste was caused by faulty or unsatisfactory workmanship by the respondent. Mr Tilbury referred to comments made by the BEI Inspector in the PBRO report that the shower floor waste was not mentioned in reports commissioned by the applicants on 10 July 2019 and 26 May 2022, and a letter from the respondent dated 16 August 2022 that this item was not reported to the respondent at time of key handover.[100]
[100] HB, page 1656.
Mr Tilbury gave oral evidence consistent with his written opinion.[101]
[101] ts 145, 12 July 2024
Mr Theodorou in his report dated 23 April 2024 said:[102]
1.The drain was supplied with damage and to date the builder has not made any attempts to replace it.
[102] HB, page 594.
Mr Theodorou's oral evidence was, however, that if the shower floor waste was installed damaged or was damaged by the respondent then it should be remedied by the respondent, but that if it was damaged by the applicants after key handover then it need not be remedied by the respondent.
The Tribunal has carefully considered the claim by the applicants that they reported the damage to the shower floor waste to the respondent prior to key handover. However, although the Tribunal was provided by the applicants with their independent Practical Completion report dated 10 July 2019 which contained a lengthy list of defects including such items as a minor adjustment to a door hinge, the Tribunal noted that this report made no mention of the shower floor waste. Similarly, the applicants provided the Tribunal with many emails sent by them to the respondent in relation to a lengthy list of defects in 2019, none of which mentioned the shower floor waste.
In the absence of any confirmation that the applicants did in fact complain to the respondent about the shower floor waste prior to key handover, the Tribunal is not satisfied that the damage to the shower floor waste was caused by the respondent, or was a result of faulty or unsatisfactory work by the respondent.
The consequence of these findings is the Tribunal will under s 38(1)(b) of the BSCRA Act decline to make building remedy order with respect to complaint item 25 and it will dismiss the complaint item.

Complaint item 26

Complaint item 26 is:[103]
Kitchen Bench & overall kitchen positioning: Kitchen Bench installed in wrong location. Distance between benchtops as shown on plans is supposed to be 1180mm. The distance between benchtops is 1225mm. The Southern corner of Bench is 1210mm, so bench hasn't even been installed square. Distance is outside allowable tolerance.
The remedy sought by the applicants is the builder builds the house to the dimensions on the plan and puts items such as benchtops and windows in the correct location. This is because the house is small as it is and taking away any space from the main rooms of the house disadvantages the owners with placement of furniture and overall enjoyment with use. The applicants ask the builder to pay retribution in the form of compensation if the builder is unable to comply with this request.
[103] HB, page 35.
The BEI Inspector in the PBRO report stated:[104]
At the Building and Energy inspection from a normal viewing position, the top [of the kitchen island] has been centred to a window on the wall at one end of the counter. After reviewing the plans, the BEI can find nowhere is an actual measurement of the distance between cupboards.[105] The plans do; however, show the top is centre to the window.
It is the BEI's considered opinion that as there is no evidence of faulty and unsatisfactory workmanship on the respondent's behalf, it is recommended the complaint item be dismissed.
[104] HB, page 342.
[105] The Tribunal notes that this measurement, which is 1,690 millimetres, appears on sheet 5 of the construction drawings, and that at this distance the kitchen island is centred on the window: HB, page 405.
Mr Tilbury in his report dated 24 April 2024 stated:[106]
[106] HB, page 1666.
…
26.9.2The Complainant claims that the discrepancy of 30mm (40mm measured on site) between the bench tops is because the overall room dimension is incorrect. The plans show an overall dimension of 9940mm.
The overall measurements taken on site of the Living room, Meals and Kitchen during the inspection added up to 9940mm which is as per the dimensions on the approved plans.
The measurements were obtained by three measurements taken and added together.
1.Measurement from living room wall to the reveal of the first window - 4095mm
2.Measurement from window reveal to kitchen bench top - 2990mm
3.Measurement from bench top to pantry wall - 2840mm
4.Plus 15mm for plaster - Total = 9940mm
26.9.3The bench top has been centred to the window as per the plans. The discrepancy between the bench tops dimension appears to have eventuated from a discrepancy in the window position dimension shown on the approved plans and the actual window position on site.
26.9.4The dimension shown on the plans to the edge of the window is 7160mm. This measurement does not equate to actual brickwork dimensions, the nearest brick dimension is for 22 2/3 bricks which is a dimension of 7120mm. It appears the bricklayer has fitted the window to suit brick sizes as per the Midland Brick Chart to avoid any cutting of the bricks to an odd size whereby the brick perpends would not have aligned and look unsightly. The differential in dimensions is 40mm which is the same amount the dimension has increased between the bench tops.
26.9.5The additional 40mm spacing between the kitchen will have no direct impact on the useable areas of the kitchen or meals rooms, whereby the cutting of the external face bricks would have impacted the overall aesthetics of the external face brick wall.
Mr Tilbury gave oral evidence consistent with his written opinion.[107]
[107] ts 152 - 153, 12 July 2024.
Mr Theodorou in his report dated 23 April 2024 stated:[108]
1.We found serious deviations from the documented dimensions (see picture 14); namely the walk-in pantry being 3cm longer, making the kitchen/meals room 3-4cm shorter (note that the 3cm deviation of the WIP dimensions is out of tolerance) and the distance of the last window to the back wall of the meals room being 45mm shorter than the documented dimension (again out of tolerance by a large margin).
[108] HB, pages 594 - 595.
Mr Theodorou also gave oral evidence consistent with his written opinion as to the position of the window, but also said that it would have been possible for the brick layer to have placed the window in accordance with the construction drawings by accounting for the 40 millimetre discrepancy over 22 bricks by increasing each mortar joint on one side by 1 to 2 millimetres.[109] The Tribunal did not, however, have regard to Mr Theodorou's claim that there was a difference of 3 to 4 centimetres in difference in the walk-in pantry and kitchen/meals room as this claim is not within the complaint item referred by the Building Commissioner to this Tribunal.
[109] ts 153, 12 July 2024.
Mr Tilbury responded to Mr Theodorou's proposal by saying this would have resulted in 'unsightly' brick work as the joints on one side of the window would be visibly different to the joints on the other side of the window.[110]
[110] ts 153 and 154, 12 July 2024.
Sessional Member Orr, who is an experienced builder, suggested an alternative would have been to place a 30 millimetre fillet of cut brick at irregular intervals into the line of bricks which join the window.[111]
[111] ts 154, 12 July 2024.
After considering the evidence of Mr Tilbury and Mr Theodorou and itself inspecting the photographs and the construction drawings identified by these witnesses and the applicants, the Tribunal is satisfied and finds that:
(1)the window is positioned 40 millimetres from the position specified in the construction drawings;
(2)the kitchen island is specified in the construction drawings to be 1,690 millimetres from the stove top bench, but as it was placed so as to be centred on the mispositioned window it was installed 40 millimetres farther away from the stove top bench than is specified in the construction drawings;[112] and
(3)the kitchen island was placed flush with and square to the wall containing the window, but it is not square to the stove top bench.
[112] HB, page 405.
In considering whether the placement of the window constitutes a regulated building service not being carried out in a proper or proficient manner or being faulty or unsatisfactory, the Tribunal considered the General Specifications in the building contract and the 'note on brickwork' on the construction drawings.[113]
[113] HB, page 425 and HB, page 398.
The following General Specifications is relevant:[114]
4.1Generally
All brick work shall be built soundly in approved bond. The work should be carried out evenly and no portion shall be one scaffold height above any other point. All dimensions on plan are brick to size only and do not include plaster thickness
[114] HB, page 425.
The following note on sheet two of the construction drawings is relevant:[115]
EXTERNAL FACE BRICK SIZE: 290L X 90W X 162H
ALL COURSE HEIGHTS SHOWN ARE TO STANDARD BRICK COURSING EXTERNAL FACE BRICKWORK TO BE IN ONE THIRD BOND COURSING
[115] HB, page 402.
The Tribunal finds that the requirement that external face brickwork is to be caried out evenly and that there is to be in one third bond coursing means that whole bricks are to be used and the insertion of fillets of cut brick into a line of bricks is not permitted under the contract. Accordingly, the placement of the window 40 millimetres further along the wall then specified in the drawings is permitted under the contract and is not outside of permitted tolerances. The Tribunal is also satisfied and so finds that to adjust the mortar joint widths as proposed by Mr Theodorou, so as to place the window in the positions specified in the construction drawings, would make the brickwork unsightly.
For these reasons, the Tribunal is not satisfied that the placement of the window is work carried out by the builder in a manner that is not proper or proficient or is faulty or unsatisfactory.
The Tribunal then considered the applicants' complaint that the placement of the kitchen island takes 'away … space from the main rooms of the house [and] disadvantages the owners with placement of furniture and overall enjoyment with use'.
When considering this complaint, the Tribunal observes that the open meals/living area adjacent to the kitchen is, for the reasons just discussed, 40 millimetres shorter than specified in the construction drawings.[116]
[116] HB, page 398.
However, in the absence of any evidence by the applicants as to any actual disadvantage they have suffered with the placement of furniture or any particulars as to their actual loss of enjoyment of use, the Tribunal is not satisfied that the applicant has in fact suffered any disadvantage or loss of enjoyment through the 40 millimetre reduction in the length of the area.
The Tribunal has also considered the applicants' complaint that the kitchen island is not square with the kitchen stove top. As stated above, the Tribunal finds that this is because the kitchen island is placed square to the wall on which it abuts, and that this was done because to place the island square to the stove top bench but not square to the wall would be aesthetically displeasing. Further, the Tribunal is satisfied and so finds that to place the kitchen island in the position specified in the construction drawings would mean that it is not centred on the window and would be aesthetically unpleasing. Finally, the Tribunal notes that no complaint is made by the applicants that the kitchen stove top bench is not square to the wall on which it is placed, or that the position of the stove top bench is in any way itself aesthetically displeasing.
For these reasons, the Tribunal is not satisfied that the placement of the kitchen island is work carried out by the builder in a manner that is not proper or proficient or is faulty or unsatisfactory.
The consequence of these findings is the Tribunal will under s 38(1)(b) of the BSCRA Act decline to make building remedy order with respect to complaint item 26 and it will dismiss the complaint item.

Complaint item 32

Complaint item 32 is:[117]
Hallways & various room dimensions: As on plans main hallway is supposed to be 1050mm wide. It only has been built 1015mm wide. Rear hallway is supposed to be 930mm, wide however has only been constructed barely 900mm wide. Also, the rear hallway in between the bathroom & laundry has been built out of square. The builder did inform deviation on the ground floor slab dimensions for garage only, with the garage rear length only affected, not width. In this email it didn't state it would affect the rest of the house. However, despite those reassurances, there are several issues concerning walls & tiles being out of square, which are more than likely due to misalignment issues with construction. Supports the entire house has been built out of shape.
The remedy sought by the applicants is the builder fix the defective work or pay restitution in the form of compensation to the applicants because the dimensions outside of tolerance not only does it affect the eye in some rooms, such as looking down the hallway, it overall devalues the house with resale.
[117] HB, page 37.
The BEI Inspector in the PBRO stated:[118]
It is the BEI's considered opinion that the brickwork and measurements are considered to be installed in a proper and proficient manner, and the deviation did not adversely affect the safe use or reasonable amenity of the building; therefore, it is recommended the complaint item be dismissed.
[118] HB, page 346.
Mr Tilbury in his report dated 24 April 2024 stated:[119]
During the inspection of the hallway tiling a string was strung along the grout joint of the tiles for the full length of the hallway and then measurements were taken at various points along the string line to either side of the hallway walls. It was observed that there were only minor deviations in the measurements taken of between 3 - 4mm which is within the allowable tolerances for the overall length of the hallway walls and would have no direct impact on the use of the building.
[119] HB, page 1710.

Mr Tilbury in his oral evidence said:[120]
TILBURY, MR: … The other side [the right side], we agree from the front door to the door to the garage, that ran out - out of - by 15 millimetres over four and a half metres, and then the next nib wall was near the kitchen, and the measurement was correct again. So we do acknowledge that - that there is - there is a discrepancy of 15 millimetres in that four and a half metres from the front door to the garage door.
[120] ts 165, 12 July 2024.
Mr Theodorou in his report dated 23 April 2024 said:[121]
1.Several internal wall dimensions were found to deviate from the document dimensions.
2.This is the case for both hallways (i.e. central hallway and hallway between bed 2 and bed 3).
[121] HB, page 596.
However, Mr Theodorou, in both a note in the EJCS and in his oral evidence said that he agreed with Mr Tilbury's oral evidence as to the dimensions of the hallway, but added that he observed this discrepancy as soon as he entered the house and in his opinion the hallway dimensions should be remedied.[122] Mr Tilbury, in response, said that he did not find the discrepancy unsightly and did not think the discrepancy needed to be remediated.[123]
[122] ts 165 and 167, 12 July 2024.
[123] ts 167, 12 July 2024.
Mr Theodorou in his oral evidence said he thought the deviation could be remedied by scraping back the plaster on the wall and replastering it so as to remove the deviation.[124] Mr Tilbury agreed that the remedy proposed by Mr Theodorou was an appropriate solution to the complaint item but added that it would not involve any need to 'pull the brickwork out'.[125]
[124] ts 168, 12 July 2024.
[125] ts 168, 12 July 2024.
Sessional Member Orr expressed the view that remediation of a deviation of 15 millimetres would not be possible unless the brickwork behind the plaster was also remedied.[126] Neither party took up Sessional Member Orr's view with either Mr Tilbury or Mr Theodorou.
[126] ts 168, 12 July 2024.
Mr Jones estimated the cost of such works, which included removal of brickwork, replacing brickwork, props, ties, ceiling rafter, cornice, painting, plastering, white set, rubbish, tarps and flooring to be $20,000.[127] In his report dated 13 March 2024 Mr Jones estimated the works at $9,293.87,[128] and in his report dated 29 April 2024 he estimated the works at $20,097.25.[129] The major difference between Mr Jones' two reports was that the second increased the estimated days of labour required to perform the works and included an additional line item for painting the ceiling.
[127] ts 170, 12 July 2024 - while Mr Jones stated '20' it is clear that works as extensive as he describes would cost $20,000, not $20.
[128] HB, pages 570 - 571.
[129] HB, page 634.
Mr Gericke costed the work of replacing portions of the plaster on the area of the nib wall to be $1,700.[130] The Tribunal again notes Mr Jones' evidence that an owner would expect to pay twice the hourly rate that the respondent would, and that Mr Gericke did not include GST in his costing whereas Mr Jones did include the cost of GST in his estimation. The Tribunal also notes that Mr Gericke's costing was also based on work to only a portion of the corridor wall and did not involve any work to the brickwork, whereas Mr Jones' estimation was for work done to the full length of the corridor wall and included demolition of the wall and related works to the ceiling and tiles.
[130] Gericke report.
After considering the evidence of Mr Tilbury and Mr Theodorou and itself inspecting the photographs provided by Mr Tilbury, Mr Theodorou and the applicants, the Tribunal is satisfied and so finds that the right wall in the hallway does deviate by 15 millimetres along its length, that this deviation is immediately apparent upon entering the home, that it is unsightly and that it will devalue the home.
The Tribunal also finds that a deviation as significant as 15 millimetres cannot be remedied by only attending to the plaster and render and that remediating the deviation will also require modification of the brickwork along with ancillary work to the ceiling and floor tiles. The Tribunal finds Mr Jones' estimation of the works in his report dated 29 April 2024 to be reasonable, given the works are extensive.
Consequently, the Tribunal is satisfied it is proper for the Tribunal to make a building remedy order against the respondent under s 36(1)(b) of the BSCRA Act, the order being that the respondent pay to the applicants the costs of remedying complaint item 32 in the amount of $20,097.25.

Complaint item 36

Complaint item 36 is:[131]
[Front portico] Has been built uneven and not level. Between the 900mm opening, besides the issue of the pavers not being at -1c as stated on plans, the overall front position between the walls sits between 20mm and 35mm difference in width from top to bottom. Besides looking unsightly, it supports the whole house has been built on a slight twist, out of shape.
North wall and South wall of portico are different lengths and heights. Gutters don't line up.
Front northeast wall (garage side) and front southeast wall (main bedroom side) are also different instead of being uniformed and don't line up/don't run parallel as they have been installed staggered.
The remedy the applicants seek is the builder either rectifies these issues and improves dramatically the overall look of the front entrance, or the builder pays the applicants restitution in the form of compensation as the way this issue is greatly devalues the property.
[131] HB, page 38.
The BEI Inspector in the PBRO stated:[132]
The Western Australia Guide to standards and tolerances 2019 shows, "Departures from documented set out of buildings are defects if the building is more than 50mm from its correct position and such deviation adversely affects the safe use or reasonable amenity of the building".
Site measurement showed the gutters showed an 8mm difference between the heights; therefore within tolerances and that the deviation did not adversely affect the safe use or reasonable amenity of the building.
It is the BEI's considered opinion that the gutters at the front elevation are considered to be installed in a proper and proficient manner and within tolerances; therefore, it is recommended the complaint item be dismissed.
[132] HB, page 348.
Mr Tilbury in his report dated 24 April 2024 said:[133]
36.9.2The measuring of the gutter and fascia levels cannot be done by taking measurements from the paving level on each side of the opening as the paving is not level across the opening because of built in falls to the paving for water runoff.
36.9.3The inspection was carried out using a level across the front opening to the undersides of both the metal guttering and fascia. It was observed that the gutter and fascia were approximately 8 mm off of being level with one another. The minor difference in level cannot be identified when viewed from 1.5 m and is therefore within the acceptable allowable tolerance.
36.9.4The inspection of the misalignment issue with the front walls was carried out by the use of a string line strung across the entirety of the front of the building. It was observed that the wall in general was true and straight. There were some areas of the walls with minor deviations of 3 - 4 mm noted which is within the allowable tolerances for the walls. The minor deviations to the walls were not identifiable from normal viewing distance of 1.5m
[133] HB, page 1739.
Mr Tilbury gave oral evidence consistent with his written opinion.[134]
[134] ts 172, 12 July 2024.
Mr Theodorou in his report dated 23 April 2024 said:[135]
1.There is an obvious misalignment of house elements around the portico. We found a couple of out-of tolerance items which are likely the reason for the obvious misalignment (visible from a normal viewing position).
2.The items mentioned in par. 1 above, are items that require major reconstruction work.
[135] HB, page 597.
Mr Theodorou added to these statements in a comment to a photograph in the portico:[136]
As evident, at the other side of the portico opening, there is a large gap between the straight edge and the wall, suggesting that the walls do not lineup with the misalignment being out of tolerance.
[136] HB, page 606.
Mr Theodorou also dealt with the portico in his report dated 12 May 2024:[137]
1.Since it was suggested at the conferral meeting that the preferred method for measuring wall dimensions, is to use a builder's line to measure dimensions from, we used such a line to measure deviations from documented dimensions of the front elevation walls.
2.The builder's line was fixed at each corner of the front elevation (i.e. at the LH corner near the meter boxes and at the RH corner of the garage).
3.We then observed and measured gaps at either side of the portico, and checked compliance with the tolerances given in the WA Guide to Standards and Tolerances, 2019. What we found was that they are within tolerances but sufficient to make the walls appear unsightly.
[137] HB, page 652.
Mr Theodorou's oral evidence was consistent with his report.[138]
[138] HB, page 172.
The applicants put to Mr Tilbury that the portico column should be equally wide across its length, but that it was in fact unequal, with the top width being 430 millimetres and the base width being 450 millimetres. Mr Tilbury agreed that the portico should have been built to be equally wide along its length, and that there was a 20 millimetre difference in width between the top of the column and the base of the column. However, Mr Tilbury said that this difference does not cause any structural issues, and that as there was a gutter running down each side of the column that an observer would be 'hard pressed to even see that that was out of different dimensions'.[139] Mr Theodorou added that the permitted tolerance in width of the portico column was 'around' 2.5 millimetres.[140]
[139] ts 178, 12 July 2024.
[140] ts 179, 12 July 2024.
Mr Jones estimated the cost of remedying the portico in his report dated 13 March 2024 to be $6,184.65[141] and in his report dated 29 April 2024 at $8,115.15.[142]
[141] HB, page 575.
[142] HB, page 639.
After considering the evidence of Mr Tilbury and Mr Theodorou and itself inspecting the photographs provided by Mr Tilbury and Mr Theodorou and the applicants, the Tribunal is satisfied and so finds that the there is a deviation between the portico walls but that the deviation is within the permitted tolerances.
After considering the evidence of the same witnesses and also inspecting the photographs provided by Mr Tilbury and Mr Theodorou and the applicants, the Tribunal is satisfied that the there is a 20 millimetre deviation between the width of the portico column along its length and that this deviation is well outside of the permitted tolerance, and that it is unsightly.
However, the Tribunal is not satisfied that the remedy involves anything more than rendering and painting the portico column to achieve a uniform width. The Tribunal used Mr Jones costings in his report dated 29 April 2024 for rendering only and has decided that the reasonable cost of the works is $2,301.75.[143]
[143] External rendering $650, Painting allowance $650 and cleaning $250, plus builder's margin 35% plus GST. The Tribunal is satisfied in this and other matters that it is appropriate to make an allowance for builder's margin as the works will likely be performed by a builder engaged by the applicants, who will charge the applicants a builder's margin.
For the reasons given above with respect to complaint item 2, the Tribunal is satisfied it is proper for the Tribunal to make a building remedy order against the respondent under s 36(1)(b) of the BSCRA Act, the order being that the respondent pay to the applicants the costs of remedying complaint item 36 in the amount of $2,301.75.

Complaint item 37

Complaint item 37 is:[144]
[Ensuite wall between entrance and shower] Sheet 5 of 7 clearly states that the wall measurement from in front of the door frame to the shower frame as stated as 1040mm. This has been built as only 990mm, just over 1000mm including the frame. 50mm short is outside of tolerance. This supports the overall house and room dimensions have not been built correctly, out of shape.
As this issue is going to be difficult for the builder to rectify the applicants seek restitution in the form of compensation for the house being built in a deformative manner.
[144] HB, page 38.
The BEI Inspector in the PBRO stated:[145]
At the Building and Energy inspection it was found that the measurements are within tolerance as the respondent was measuring from tile to tile and the measurement on plans are brickwork to brickwork. On plan 2 of 7 dated August 2018 it states "Dimension to BWK only. Plaster margin not allowed for".
It is the BEI's considered opinion that as the sizes of the rooms are within tolerances, it is recommended the complaint item be dismissed.
[145] HB, page 349.
Mr Tilbury in his report dated 24 April 2024 said:[146]
37.8.2The overall measurement of the ensuite was measured and observed to be 1915mm between the plastered walls. Adding on 25mm for plaster, the measurement would then be 1940mm which is the measurement as per the approved plans.
37.8.3The measurement of the shower shown on the approved plans is 900mm. The tiler has tiled the shower at 900mm wide with the shower screen being fitted at the tile line of 900mm as per the approved plans.
37.8.4The remaining measurement between the shower screen and the wall above the door as shown on the plans is 1040mm. The remaining measurement observed on site is 1015mm. To this measurement 25mm for the thickness of the plaster and tiles is required to be added which equates to 1040mm being the required measurement as per the approved pans.
[146] HB, page 1758.
Mr Theodorou in his report dated 23 April 2024 said:[147]
1.According to the approved plans, the dimension between the shower screen and the entrance wall of the ensuite should be 1040mm. Since this dimension is to the brickwork before plastering, the actual dimension measured should have been 1050mm. Instead it was measured by our inspector as 991mm; hence outside acceptable tolerance (L/100).
[147] HB, page 598.
Mr Theodorou, however, in his oral evidence said he now agrees with the dimensions of the ensuite as found by Mr Tilbury.[148]
[148] HB, page 182.
As the experts are agreed that the ensuite is built to the dimensions specified in the construction drawings the Tribunal is not satisfied that the ensuite is work carried out by the builder in a manner that is not proper or proficient or is faulty or unsatisfactory.
The consequence of these findings is the Tribunal will under s 38(1)(b) of the BSCRA Act decline to make building remedy order with respect to complaint item 37 and it will dismiss the complaint item.

Complaint item 40

Complaint item 40 is:[149]
[Main bathroom] Width from wall to edge of tiled hob, where it meets the bathtub shows on sheet 5 of 7 that this is supposed to be 950mm. This has been built as 995mm.
This supports the overall house and room dimensions have not been built correctly, out of shape.
As this issue is going to be difficult for the builder to rectify the applicants seek restitution in the form of compensation for the house being built in a deformative manner.
[149] HB, page 39.
The BEI Inspector in the Revised PBRO found that the applicants measured these dimensions from tile to tile whereas the measurements in the construction drawings are brickwork to brickwork. Therefore, the BEI Inspector found that the dimensions of this room are within tolerances.[150]
[150] HB, pages 750 and 751.
Mr Tilbury in his report dated 24 April 2024 said:[151]
40.9.1This work is not defective. No evidence has been presented by the complainant to the contrary.
[151] HB, page 1775.
Mr Theodorou in his report dated 23 April 2024 said:[152]
1.According to the approved plans, the dimension between the wall and edge of tiled hob (edge of bathtub) is shown on sheet 5 of 7 to be 950mm. The actual as built dimension was found to be 993mm; hence 43mm deviation - maximum allowable deviation is L/100 (= 10mm).
[152] HB, page 598.
Mr Theodorou in his oral evidence stated that he has since his report remeasured the dimensions of the bathroom and found them to be correct.[153]
[153] ts 184, 12 July 2024.
As the experts are agreed that the ensuite is built to the dimensions specified in the construction drawings the Tribunal is not satisfied that the width from wall to edge of tiled hob is work carried out by the builder in a manner that is not proper or proficient or is faulty or unsatisfactory.
The consequence of these findings is the Tribunal will under s 38(1)(b) of the BSCRA Act decline to make building remedy order with respect to complaint item 40 and it will dismiss the complaint item.

Complaint item 42

Complaint item 42 is:[154]
The gas hot water system has not been installed correctly, namely the base of the unit is sitting on a couple of loose bricks.
The gas hot water system be reinstalled correctly.
[154] HB(02), page 39.
The respondent conceded at the final hearing that the base of the hot water system is faulty or unsatisfactory, and it accepted the cost of remediating the base as estimated by the applicant's expert Mr Jones of $475.20.[155]
[155] HB, page 577.
Both parties also accepted that it was appropriate for the Tribunal to make a building remedy order the respondent pay to the applicants the cost of remedying complaint item 42 in the amount estimated by Mr Jones.
The Tribunal has examined photographs of the base of the hot water system and on the basis of those photographs it is itself satisfied that the base is a regulated building service performed by the respondent which is faulty or unsatisfactory, that the appropriate remedy is to remove the existing concrete paver, excavate and install a new concrete pad, and that the cost to the applicants of this work is $475.20. [156]
[156] HB, pages 613, 1784 and 1788.
Consequently, the Tribunal is satisfied it is proper for the Tribunal to make a building remedy order against the respondent under s 36(1)(b) of the BSCRA Act, the order being that the respondent pay to the applicants the costs of remedying complaint item 42 in the amount of $475.20.

Complaint item 43

Complaint item 43[157] is the applicants claim for reimbursement for their costs. The Tribunal considers that this complaint item is best dealt with by giving leave to both the applicants and the respondent to apply for their costs.
[157] HB, page 39, but there referred to as item 41.

Orders

CC 1749/2022
The Tribunal orders:
1.Complaint items 1, 3, 4, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 24, 25, 26, 27, 28, 29, 30, 31, 33, 34, 35, 37, 38, 39 and 40 are dismissed.
2.Under s 36(1)(b) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), that by no later than 10 January 2025 the respondent pay to the applicants the costs of remedying complaint items 2, 5, 6, 23, 32 and 36 in the amount of $26,031.
3.The applicants and the respondent have liberty to apply for their costs.

CC 1333/2023
The Tribunal orders:
1.Complaint item 1 is dismissed.
2.The applicant and the respondent have liberty to apply for their costs.
CC 284/2024

The Tribunal orders:
1.Under s 36(1)(b) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), that by no later than 10 January 2025 the respondent pay to the applicants the costs of remedying complaint item 1 in the amount of $475.20.
2.The applicants and the respondent have liberty to apply for their costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR E Cade, MEMBER

6 DECEMBER 2024

[81] HB, pages 1599 - 1602.