HAND and ARASI CONSTRUCTIONS PTY LTD
[2020] WASAT 154
•8 DECEMBER 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION ACT) 2011 (WA)
CITATION: HAND and ARASI CONSTRUCTIONS PTY LTD [2020] WASAT 154
MEMBER: MS P LE MIERE, MEMBER
MR W GREGORY, SESSIONAL MEMBER
HEARD: 17 AND 18 AUGUST 2020
WRITTEN SUBMISSIONS RECEIVED AFTER THE HEARING
DELIVERED : 8 DECEMBER 2020
FILE NO/S: CC 466 of 2020
BETWEEN: ELIZABETH HAND
Applicant
AND
ARASI CONSTRUCTIONS PTY LTD
Respondent
Catchwords:
Building - Failure to comply with building remedy order - Turns on own facts - Non-pecuniary damages - Jurisdiction - Discretion to award
Legislation:
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 36, s 36(1)(b), s 36(1)(c), s 51, s 51(2)
Result:
Partially successful
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | Ms C Moss |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | Fyfe Construction Lawyers |
Case(s) referred to in decision(s):
Dumbreck and Tangent Nominees Pty Ltd [2017] WASAT 88
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
This matter relates to a Building Disputes Tribunal (BDT) order to remedy number 370/2008 2009 dated 15 June 2009 (OTR) requiring Arasi Constructions Pty Ltd (respondent) to perform certain remedial works in connection with a regulated building service at Ms Elizabeth Hand's (applicant) home in Aveley ( property). Practical completion of the property occurred on 7 June 2007. The OTR was required to be complied with by 15 July 2009.
It would appear that the applicant contacted the Building Commissioner (Commissioner) in August 2017 and complained that works the subject of the OTR have not been satisfactorily completed. At that time the Commissioner concluded that the issue was a new issue which had come to the applicant's notice due to the rectification works carried out and was considered to be a latent defect. The Tribunal infers from this that the Commissioner declined to investigate the matter at that time.
The applicant then lodged a claim through the Magistrates Court of Western Australia which is still current. The proceedings, however have been stayed pending the decision of the Tribunal in relation to this matter.
The respondent's view (and always has been) is that the issue does not relate to a latent defect. The applicant also now takes the view that the issue does not relate to a latent defect and should be dealt with as noncompliance of the OTR.
A complaint was made to the Commissioner by letter dated 23 January 2020 that the OTR had not been complied with by 13 July 2009.
The complaint alleges that the remedial work has not been carried out, or has not been carried out satisfactorily in relation to items 3 and 4 of the Notice of Assessment dated 18 March 2009 (NOA) referenced in order 1 of the OTR and in respect of items of complaints numbered 6, 6.1 to 6.5 inclusive and 7 referenced in the NOA of order 3 of the OTR.
The Commissioner referred the non-compliance of the OTR to the Tribunal pursuant to s 51 of the Building services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) and on about 5 May 2020 the complaint was accepted by the Tribunal, various orders made and the matter proceeded to hearing.
The application was heard on 17 and 18 August 2020. At the conclusion of the hearing an order was made permitting the applicant and respondent to file further submissions in respect of the issue of compensation for non-pecuniary loss pursuant to s 36(1)(c) BSCRA Act.
On 21 September 2020 the Tribunal reserved its decision.
Background
Following practical completion of the property the applicant commissioned a Construction Report from Mr M Cleary of Housespec. A significant number of items were listed as requiring remediation.
Following a hearing in the BDT, the OTR was made.
Order 1 (made by consent):
With reference to items 1, 3, 4 and 5 of the Notice of Assessment dated 18 March 2009, by consent the Builder is to rectify and make good to the workmanship.
Relevantly for these proceedings the reference in order 1 is to items 3 and 4 of the NOA:
3.Complaint – Lounge
Cornice around doorway to family area to be painted and crack fixed. Two ridges and hollow in the ceiling still to fix.
Inspector's observations and comments
The cornice above the entry, from the front of the house into the family area, is cracked. The inspector observed the external mitre in this section of cornice. The mitre is poorly cut and has been heavily filled to compensate for the poor workmanship. The cornice has moved and a crack has occurred highlighting the poorly cut mitre. This has been patched but has re-opened.
There is also a crack in the wall traversing vertically down the wall from the underside of and adjacent to, the mitre in the cornice. This crack is fine; less than 0.5mm but is over 600mm long. It is indicative of ongoing movement.
The inspector assessed that the crack in the mitre and the crack in the wall are faulty and unsatisfactory.
Action recommended
Builder to remedy the crack in the external mitre and the cause and effect of the crack in the wall adjacent to the entry into the family room in a tradesmanlike manner making good affected surfaces.
4.Complaint - Passage
Patch and paint ceiling sheet joint crack at entry to bedroom 3 and 4.
Inspector's observations and comments
The inspector observed the ceiling above the entry to the passage which leads to bedrooms two and three. There is a noticeable downward deflection in the ceiling sheet join in this section of ceiling. This join is cracking.
The inspector assessed that the crack and the deflection in the ceiling are faulty and unsatisfactory.
Action recommended
Builder to remedy the crack and deflection in the ceiling in the passage which leads to the bedrooms two and three. All work is to be performed in a tradesmanlike manner making good affected surfaces.
Item 3 of the NOA (Order 1) (complaint item 3): cornice around doorway to family area and crack in wall room mitre in corner.
The applicant does not dispute that works to the cornice around the doorway to the family area was painted and the cracks fixed.
The applicant contends that the respondent was required to do more than carry out aesthetic works and was required to remedy the 'cause and effect' of the cracking around the doorway to the family area and the wall and has failed to do so.
The respondent denied that it was required to remedy the cause and effect of the crack in the external mitre.
The respondent originally denied that all the cracks that have appeared in the property relate to any works it carried out at the property and were either due to the age of the property, which is now 13 years old or some other issue unrelated to the respondent's work.
Item 4 of the NOA (Order 1) (complaint item 4): passage patch and paint ceiling sheet joint crack at entry to bedroom 3 and 4.
Order 3 of the OTR required the respondent to:
With reference to items 6 and 7 of the Notice of Assessment the Builder is to examine and repair all defects as set out in the Notice of Assessment and to make good to all repairs.
Items 6.1 to 6.5 of the NOA (complaint items 6.1 to 6.5) state:
6.Complaint
Repaint all walls where they have been patched.
Inspector's observations and comments
The Inspector observed walls and cornice identified by the owner. The outcome of these observations is detailed below.
ITEM
LOCATION
DESCRIPTION
ASSESSMENT
6.1
Ensuite south wall and cornice.
There has been some maintenance patching of the cornice and cracks in the owner painted wall. The walls have been compromised by the builder's repairs
Builder to remedy the cause and effect of the cracks in the wall and the cornice in a tradesmanlike manner making good affected surfaces.
6.2
Master bedroom
North West corner,
South Wall and North East corner.
There has been some maintenance patching of the cornice and cracks in the owner painted walls. The walls have been compromised by the builder's repairs
Builder to remedy the cause and effect of the cracks in the wall and the cornice in a tradesmanlike manner making good affected surfaces.
6.3
Lounge – raked bulkhead and cornice.
There has been some maintenance patching of the cornice and cracks in the owner painted walls. The walls have been compromised by the builder's repairs
Builder to remedy the cause and effect of the cracks in the wall and the cornice in a tradesmanlike manner making good affected surfaces.
6.4
Family room over the entry to the Theatre room and below the cornices
There has been some maintenance patching of the cornice and cracks in the owner painted walls. The walls have been compromised by the builder's repairs
Builder to remedy the cause and effect of the cracks in the wall and the cornice in a tradesmanlike manner making good affected surfaces.
6.5
Theatre room – raked bulkhead, cornice and walls.
There has been some maintenance patching of the cornice and cracks in the owner painted walls. The walls have been compromised by the builder's repairs
Builder to remedy the cause and effect of the cracks in the wall and the cornice in a tradesmanlike manner making good affected surfaces.
Item 7 of the NOA (complaint item 7) is a complaint with respect to a specific bedroom as follows:
Complaint
Bedroom near laundry ceiling uneven – Anthony's bedroom.
Inspector's observations and comments
The inspector observed the ceiling above and to the right of the door to bedroom 5. The external mitre in the cornice is open and the flushing of the ceiling is rough, with trowel marks noticeable.
The inspector assessed that the open cornice mitre and the poorly flushed ceiling over the entrance to bedroom 5 is faulty and unsatisfactory.
Action recommended
Builder to remedy the open cornice mitre and the poorly flushed ceiling over the entrance to bedroom 5 in a tradesmanlike manner making good affected surfaces.
It is our understanding that up until the time of the hearing the respondent alleged it completed all the works required of it and complied with the OTR by 27 October 2009.
Legislation
Section 51 of the BSCRA Act grants discretion to the Tribunal to revoke a building remedy order (BRO) and to make a BRO pursuant to s 36(1)(b) or (c) of the BSCRA Act.
Section 36 of the BSCRA Act reads as follows:
Building remedy order
(1)A building remedy order consists of one of the following
(a)an order that a person who carried out a regulated building service remedy the building service as specified in the order;
(b)an order that a person who carried out a regulated building service pay to an aggrieved person such costs of remedying the building service as the Building Commissioner or State Administrative Tribunal, as the case requires, considers reasonable and specifies in the order;
(c)an order that a person who carried out a regulated building service pay to an aggrieved person a sum of money specified in the order to compensate the aggrieved person for the failure to carry out the building service in a proper and proficient manner or for faulty or unsatisfactory building work.
(2)A building remedy order may require that the order be complied with within a time specified in the order.
(3)A person who is not a building service contractor may arrange for a building service to be carried out for the purpose of compliance by that person with a building remedy order referred to in subsection (1)(a) despite the Building Services (Registration) Act 2011 section 7.
Hearing
The applicant appeared in person and the respondent was legally represented.
The applicant gave evidence and called the following experts:
1)Mr Peter Airey of Airey Taylor Consulting (ATC) engineer
2)Mr Dion James Nelidis – roof carpenter
3)Mr Leo Quaresimin – ceiling plasterer
Evidence was given for the respondent by the following experts:
1)Mr Shane Just of Structerre - expert engineer
2)Mr Christopher Angelo Carbone - cost expert repainting and patch work
3)Mr Vincenzo Pruiti - cost expert re-roofing costs
4)Mr Adam Bolton cost expert re-expansion joint
The engineering experts gave their evidence concurrently.
Mr Arasi (a director of the respondent) provided a witness statement that was included in Exhibit 1.
The following exhibits were in evidence:
a)Exhibit 1 - Hearing Book which contained, among other things all the expert reports;
b)Exhibit 2 two page statement of the applicant dated 16 August 2020 together with a two page attachment;
c)Exhibit 3 Structerre report dated 7 August 2020 in reply to ATC's report of 29 July 2020;
d)Exhibit 4 4 painting quotes sourced by applicant dated 18 August 2020; and
e)Exhibit 5 painting quote by All Star Maintenance dated 7 January 2020.
The issues
The issues to be determined by the Tribunal at the commencement of the hearing were:
•What was the remedial work the respondent was required to do pursuant to the OTR?
•Did the respondent complete the remedial work required and comply with the OTR in respect of the relevant complaint items and if the answer is in the negative should the Tribunal exercise its discretion under s 51 of the BSCRA Act and revoke the OTR and make a BRO pursuant to s 36(1)(b) or (c)?
•If the Tribunal determines it should revoke the OTR and make a BRO, what is an appropriate order?
•Should any BRO the Tribunal makes include an amount as compensation for stress and inconvenience and if the answer is in the affirmative what is that amount?
The evidence
The evidenceinchief from the two engineering experts was given by the tendering of their expert reports found in Exhibit 1 at:
•pages 72 to 109 Airey Taylor dated 20.11.2018 (Airey first report);
•pages 541 to 542 Airey Taylor dated 29.7.2020 (Airey second report);
•pages 238 to 248 Structerre dated 18.2.2020 (Just first report);
•pages 711 to 725 Structerre dated 14.7.2020 (Just second report); and in
•Exhibit 3 Structerre report dated 7 August 2020 (Just third report)
Complaint items 3 and 6.1 to 6.5
Whilst the expert reports suggest the experts had different views in relation to the cause and effect of the cracking the subject of complaint items 3 and 6.1 to 6.5 at hearing the experts agreed that the cracking the subject of the original above compliant items (other than the vertical wall crack complaint item 6.1) was caused by roof movement described by Mr Just as 'roof roll'.
Mr Airey described the roof movement as 'roof spread' which he agreed was movement laterally in one direction at the western side of the property and was not a spreading motion from the centre and outward.
Despite the differences in expression the experts agreed they were describing the same movement.
It was Mr Airey's evidence that whilst the roof roll caused a lateral movement, a lack of bracing in the roof above the living and theatre rooms on the western side of the property had caused a vertical movement which had also contributed to the cracking in these areas.
The vertical movement caused by the lack of support was in the nature of a lifting action on one side of the rooms.
The Airey first report made a number of recommendations as to what repairs were necessary in respect of the vertical movement which included the installation of collar ties; Exhibit 1 at page 458.
At hearing Mr Airey clarified that what was being spoken about in the report was in fact providing additional support to deal with the lack of bracing and accepted that the collar ties (which is a particular type of bracing) were not appropriate but extra bracing was.
Mr Pruiti, of VP Roofing Pty Ltd provided a quote for $900 to install the bracing in the area over the theatre and living rooms and additional support for the dog leg in the ensuite recommended in the Airey first report; Exhibit 1 page 639.
JLA constructions, (Mr Lunt) was engaged by the applicant in January 2019 to inspect the roof and report on any problems associated with it. Mr Lunt did not inspect the roof himself but employed Mr Dion Nelidis (a roofing contractor) of D.N.J. Carpentry to inspect the roof and provide a report to him; witness statement of Mr Lunt, Exhibit 1 page 563 and pages 28 to 41.
Mr Nelidis gave evidence he carried out the inspection of the roof and provided the information to Mr Lunt who prepared a report; Exhibit 1 pages 507 to 525.
Mr Nelidis gave evidence that he found aspects of the roof frame construction that he considered where not compliant with Australian Standards and constituted faulty or unsatisfactory workmanship. He also gave evidence that because of the faulty workmanship the roof was not stable and could and did move. He confirmed the movement he spoke of was vertical movement not the movement agreed by the experts as roof roll or a lateral movement.
Mr Nelidis was of the opinion that on the western side over the areas of the theatre and living room the roof rafters had not been adequately supported. The work he identified needed to be done was the need for additional under purlins (to stop the deflection of the rafters) and for the roof to be re-supported above the steel beam; Exhibit 1 page 507.
The applicant engaged Mr Lunt to carry out repairs; Exhibit 1 at page 496. Mr Lunt employed Mr Nathan Bulla of NB Carpentry to carry out the repairs; Exhibit 1 pages 495 to 497.
Mr Lunt gave Mr Bulla the report from DNJ Carpentry, a generic checklist used by Perth project builders and an A3 copy of the floor plan marked with the major areas of concern on the ceilings; witness statement of Mr Lunt, Exhibit 1 page563.
Mr Lunt's invoice for the work completed by Mr Bulla states that work was done as per the quote. The Tribunal was not referred to the quote and was not able to discern what document in Exhibit 1 it was.
At hearing the applicant informed the Tribunal that she wished Mr Bulla to give evidence and provided a telephone number on which to call him. He was contacted by the Tribunal but Mr Bulla terminated the phone call before he gave evidence. Despite further attempts by the Tribunal to contact Mr Bulla he did not answer his phone.
The Tribunal infers that the repairs carried out by Mr Bulla were those referred to in Mr Nelidis's report and the documents provided by Mr Lunt set out above which included areas not the subject of complaint items 3 and 6.1 to 6.5.
Works were carried out over the entirety of the roof frame by JB Carpentry and Construction at a total cost of $3,696.00, ($2,800 + 20% builder's margin + GST). The work to stabilise the roof over the western side was not separately itemised.
Mr Airey agreed with Mr Just that at the time Mr Just inspected the roof the only movement was laterally and was the movement described by Mr Just as a 'roof roll'. Mr Airey was of the opinion that the work carried by Mr Bulla had stopped the vertical movement of the roof frame.
Mr Just was clear that at the time he inspected the roof frame it was adequately supported. He was of the opinion that at that time there was not any vertical movement of the roof. He confirmed he did not inspect the roof frame prior to the works being carried out by Mr Lunt/Mr Bulla.
Mr Airey and Mr Just agreed that the 'roof roll' was an ongoing problem and was causing the cracking the subject of the OTR.
Mr Just had personally carried out a site inspection of the property on 24 June 2020 to prepare the Just second report; Exhibit 1 page 273. Mr Just set out what he considered was sufficient to stabilise the roof so as to prevent further lateral movement of the roof and consequential cracking.
At hearing Mr Airey agreed that the outline of remedial work suggested by Mr Just was appropriate however emphasised that proper drawings would need to be made for a roof carpenter/builder to follow.
Mr Just had not prepared any drawings but agreed they would need to be undertaken and that they would cost between $1,500 and $2,000 to complete.
Mr Airey did not dispute that appropriate engineering drawings could be completed for that amount. (Mr Airey had quoted the applicant $6,500 plus GST including a site inspection, preparation of drawings, supervision of the build and control joint design and detailing).
Mr Leo Quaresimin of Platinum Ceilings Pty Ltd gave evidence he had repaired the ceilings throughout the property by propping and rescrewing the ceiling sheets and grouting over the joists where it was necessary to do more than a local repair.
These repairs to the ceiling sheets, which had cracked, Mr Quaresimin said, signified a complete failure of the ceilings.
Mr Quaresimin referred to a 'deflection of construction'. The Tribunal understands this to mean there was most likely a failure of the glue or a lack of sufficient gluing of the ceiling sheets at the time of construction, which resulted in the sheets themselves detaching from the supporting timber frame.
Mr Quaresimin's evidence was that he (or his workers) did not replace any ceiling timbers but rather just refixed the ceiling sheets. The Airey first report considered the problem to be poor ceiling work. Exhibit 1 page 106.
Complaint item 6.1 - wall crack
The cause of the crack in the wall of the ensuite was identified by Mr Just as being due to 'brick growth' due to the long length of the wall; Exhibit 1 pages 711 to 725.
Mr Airey agreed this was a likely cause of the wall crack.
Mr Just said the work necessary to remedy this defect was as set out in the quote provided by Mr Adam Bolton of Maximus Maintenance. Mr Bolton also gave oral evidence to the Tribunal. His quote is for $425; Exhibit 1 page 789
The applicant provided a quote for the work required to remedy the wall crack from Mr Lunt for $9,256; Exhibit 1 page 529. Mr Lunt was not called to give evidence. No detail as to what would be done to remedy the crack was set out in the quote. Upon the Tribunal bringing to the applicant's attention the vast difference in the amounts of the quotes the Tribunal was informed that the work outlined by Mr Bolton was inadequate as the crack went behind the tiles and was potentially of a structural nature and this was what Mr Lunt had allowed for.
Complaint item 4 - patch and paint ceiling joint crack at entry to bedrooms 3 and 4.
Action recommended
Builder to remedy the crack and deflection in the ceiling in the passage which leads to the bedrooms 2 and 3. All work to be performed in a tradesmanlike manner making good affected surfaces.
The applicant agrees the respondent did 'remedy the crack and deflection in the ceiling' but says that it was required to do more namely, to repair the cause of the crack and deflection.
The Airey first report does not show a crack(s) in the 'Nook' area which the parties agree is where complaint item 4 is located and where the original crack was repaired.
The new crack(s), or those identified in the Airey first report are located near the air-conditioning vent not near the entry to bedrooms 3 and 4.
The evidence of Mr Quaresimin was that there was a general ceiling failure throughout the house and that there was nothing in particular relating to the area as set out in complaint item 4 that was any different.
Complaint item 7 - bedroom near laundry ceiling uneven Anthony's room.
Action recommended
Builder to remedy the open cornice mitre and the poorly flush ceiling over the entrance to bedroom 5 in a tradesmanlike manner making good affected surfaces.
The applicant accepts that remedial work was done in respect of this complaint item but again says the respondent was required to remedy the cause of the 'open cornice mitre' and has not done so.
The Airey first report refers to cracks in the vicinity of the airconditioning vent (void). The cracks in relation to the cornice is described as a cornice separation crack and is less than 0.2 millimetres. There is no mention in the Airey first report of an open cornice mitre.
There is evidence that the original work to the ceiling had been completed properly; Exhibit 1 pages 651 to 654.
The ceiling in this area had to have further work due to the general ceiling failure due to the glue failing and or a lack of nailing referred to previously.
General cracking throughout the property
Cracking not identified in the original OTR and not included in complaint items 3 and 6.1 to 6.5 (further cracking) as noted in the Airey second report.
The parties agreed the position of the cracks the subject of the OTR is set out on page 551 of Exhibit 1.
The applicant contends that there is general and wide spread cracking throughout the property and that this is as a consequence of the respondent's failure to remedy the cause of the cracking to complaint items 3, 4, 6.1 to 6.5 and 7.
The applicant further contends that all the further cracking throughout the property was caused by the roof roll as described by Mr Just of Structerre in the Just first report together with the roof defects as found by Mr Lunt in his report dated 17 February 2019, Exhibit 1 page 507 and 12 July 2020, Exhibit 1 page 531.
In support of this allegation the applicant refers to the Airey first report and the Airey second report and the oral evidence of Mr Airey.
At the commencement of day two of the hearing the applicant informed the Tribunal that she wished to recall Mr Airey (who completed his evidence on day one) to clarify that he considered the further cracking throughout the house was caused by the roof roll.
The Tribunal determined that it was not necessary as it had Mr Airey's written reports to refer to.
Mr Airey evidence was that the further cracking throughout the house was caused or contributed to by the roof roll and/or the items identified in the Airey second report.
Mr Just was of the opinion that the further cracking (those areas not the subject of complaint items 3 and 6.1 to 6.5) are not related to the roof roll.
Mr Just said that the size of the cracks in a house that is now 13 years old suggests that they are nothing more than settlement cracks as described in the Just first report.
The findings of the Airey first report (Exhibit 1 page 423 to 460 at page 457) state that the cornice separation around the external and internal walls is due to the drying shrinkage of the timber wall plates.
The Airy first report states that the movement of the roof frame is a lateral movement (described as 'roof spread') and a lack of collar ties caused movement in the internal walls of the property to be greater than those outside.
The reference to roof spread notes it as having an effect in bedroom 1 ensuite western corner. The reference to all the other cracking refers to problems with the ceiling, for example, the expansion of plaster board and the poor selection of adhesive.
At para 4.2 the author of the Airey first report attributes a crack at the mitre to be roof timber and cornice movement. The solution suggested appears to be the use of filler material flexible enough to cater for some minor movement.
Painting and aesthetic repairs
Mr Christopher Angelo Carbone of General Painting Contractors Pty Ltd gave oral evidence and provided written costings on behalf of the respondent for the necessary patching and painting and general aesthetic remedial works necessary; Exhibit 1 pages 634 and 635.
His quotes are based on repairs to the cracks as set out in the Airey first and second reports and the marked up plans.
Quote 23 in respect of the cracking in the Airey first report is $1,650; Exhibit 1 page 635.
Quote 21 is for the repair work and painting work for the areas in the theatre room, living room, bedroom 1 and ensuite and as recorded in the Airey first report is for $650; Exhibit 1 page 634.
Both quotes were premised on the tradesperson matching the paint and only painting the affected areas rather than repainting all of the walls or ceilings.
Mr Carbone was questioned as to whether it would be possible to match the paint in the areas that needed repair and painting or if it would be necessary to repaint all of the walls and ceilings to ensure consistency of colour.
Mr Carbone was confident that he could match the paint and would not need to paint all the walls or ceilings. He said he made some allowance for the possible repainting of a wall if it was necessary rather than for a patch of just an area on the ceiling or wall.
In answer to questions from the Tribunal as to what extra time it would take to repaint the walls in the affected areas if he was unable to match the paint he said it would be an extra couple of hours in respect of quote 21.
There was a quote in the hearing book from JLA Constructions, (Mr Lunt) dated 9 April 2009 for 'Paint ceilings throughout Patch and paint internal walls touch up one full coat, Garage, Alfresco & eaves $7,650 plus builder's margin of 10 per cent $765 and GST $841 being a total of $9,526'.
On the second day of the hearing the applicant put into evidence (Exhibit 4) four quotes which the applicant said her tenant had obtained in July 2020 for the repainting of the whole of the house including the necessary repairs to the cracks in the cornices etc.
We asked Mr Carbone about other quotes being part of Exhibit 4 that were for painting of the whole of the house for $5,139.20 and $4,499.
The applicant suggested to the Tribunal that the quote for $4,499 did not allow for the painting of the all of the ceilings. However on the face of the quote it did appear that it was for the whole of the house.
Mr Carbone agreed that the quote for $5,139.20 was a reasonable amount to charge for painting of the whole of the house, walls and ceilings.
The applicant did not provide a quotation(s) for repainting only the areas the subject of complaint items 3, 4, 6.1 to 6.5 and 7.
Compensation
The applicant seeks the sum of $65,000 in compensation for the time she spent on attending to the issues surrounding the respondent's noncompliance with the OTR including supervision of repairs and for the stress and inconvenience the non-compliance had caused her.
We do not propose to set out the evidence of the applicant in support of her application in detail. She has set out in her written submissions in Exhibit 1 the various actions she has had to take, the time she has spent and the stress and inconvenience she has suffered as a consequence of the respondent's failure to remedy its faulty and unsatisfactory workmanship.
The applicant confirmed that the amount of $65,000 is based on her assessment of what is appropriate taking into account the circumstances and the amount awarded in Dumbreck and Tangent Nominees Pty Ltd [2017] WASAT 88 (Dumbreck).
The respondent denies the applicant is entitled to any compensation as a matter of law. The respondent also submitted that the main cause of the applicant's stress in relation to the problems with her property was the concern over the possibility of the ceilings collapsing. This stress lasted for a relatively short time, that is between the time of being informed of the possibility of collapse and when the ceilings were repaired.
Parties' position after evidence by experts at hearing
The agreement by the experts as to the cause of the lateral movement of the roof frame significantly reduced the apparent areas of disagreement and the issues to be determined by the Tribunal.
Additionally at the commencement of the second day of hearing the respondent confirmed it no longer disputed that it was required to remedy the cause of the cracking in respect of complaint items 3 and 6.1 to 6.5.
The issues therefore left for determination can be more specifically detailed as:
•Was the respondent required to remedy the cause of the 'crack and deflection in the ceiling in the passage which leads to the bedrooms 2 and 3' as set out in complaint item 4 and if the answer is in the affirmative has it done so?
•Was the respondent required to remedy the cause of the 'open cornice mitre' in complaint item 7 and if the answer is in the affirmative has it done so?
•If the respondent has not complied with the OTR in respect of complaint items 4 and 7 should the Tribunal exercise its discretion under s 51 of the BSCRA Act and revoke the OTR and make a BRO pursuant to s 36(1)(b) or (c).
•If the Tribunal determines it should revoke the OTR and make a BRO in respect of complaint items 4 and 7, what is the required scope of works and what is an appropriate amount of compensation?
•Has the respondent's failure to comply with the OTR in respect of complaint items 3 and 6.1 to 6.5 caused further consequential damage to the property and if the answer is in the affirmative is the respondent required to carry out remedial work in respect of that damage?
•What is the scope of works required to remedy the cause of the items of complaint as listed in complaint items 3 and 6.1 to 6.5 and what is the cost of those remedial works?
•Should the BRO (the respondent does not contend such an order should not be made in respect of complaint items 3 and 6.1 to 6.5) include an amount as compensation for stress and inconvenience and if the answer is in the affirmative what is that amount?
Consideration
Complaint item 4 and 7
Complaint item 4
The applicant agrees the respondent did 'remedy the crack and deflection in the ceiling' but says that it was required to do more, namely to repair the cause of the crack and deflection.
The inspector's observations and comments set out in the NOA are all about the ceiling join:
… There is a noticeable deflection in the ceiling sheet join in this section of ceiling. The join is cracking.
There is nothing in the wording either in the NOA or the OTR that stipulates the respondent was required to remedy the cause of the complaint item.
Complaint item 7
The applicant also agrees that the respondent did repair the 'open cornice mitre and the poorly flushed ceiling'.
The inspector's observations and comments are:
… The external mitre in the corner is open and the flushing of the ceiling is rough, with trowel marks noticeable.
The inspector assessed that the open cornice mitre in the poorly flush ceiling over the entrance to bedroom 5 is faulty and unsatisfactory.
There is nothing in the wording either in the NOA or the OTR that suggests the respondent was required to remedy the cause of the complaint item.
There is nothing in either the wording of the NOA and OTR or in the description of either of the complaint items that suggests it should be implied that it was to include an order to remedy the cause of the complaint items.
Additionally the nature of the complaint items does not on its face lend itself to an order to remedy the cause being a ceiling joint crack, deflection in the ceiling sheet join and an open cornice mitre and poorly flushed ceiling.
The nature of the problems tends to suggest that the problems are caused by poor workmanship in particular areas not by some other more general problem such as movement of the roof.
The OTR in regard to complaint items 6 and 7 specifies that the respondent is to carry out the work detailed in the NOA. Relevantly the NOA specifically requires the cause and effect of complaint items 6.1 to 6.5 to be remedied. No such action is required for complaint items 4 and 7.
In respect of complaint items 1, 3, 4 and 5 the order was made by consent. The Tribunal is therefore mindful that the wording of this order may have had significance to the respondent and an order differently worded may be one that it would not have agreed to.
The Tribunal is not persuaded that the respondent has not complied with the OTR in respect of complaint items 4 and 7.
Scope of works complain item 6.1 - wall crack
Both experts agreed that wall growth was the issue that needed to be resolved to remedy the crack in the wall in the south wall of the ensuite.
The respondent says the work necessary to remedy this defect is as set out in the quote provided by Mr Bolton of Maximus Maintenance. The quote is for $425; Exhibit 1 page 789.
The applicant claims the cost of this work is as set out in Mr Lunt's quote namely, $9,256.
Mr Lunt was not called to give evidence and was therefore not able to be questioned about what works he considered necessary and the basis upon which he had costed them.
The applicant questioned Mr Bolton about the positioning of the repairs and he confirmed that the repairs would be inside the walk in robe in order to conceal the works. This was agreed by the experts as the best position as the repairs would not be visible. Mr Bolton was not questioned by the applicant about the possibility of the repair of the crack necessitating more substantial works than he had allowed for.
We find the scope of works is as set out in the quote of Mr Bolton.
Scope of works complain items 3 and 6.1 to 6.5 (other than wall crack)
Roof roll
The respondent conceded at hearing that it was required to remedy the cause and effect of complaint items 3 and 6.1 to 6.5 and had not done so.
It further agreed that a BRO pursuant to s 36(1)(b) could be made in respect of those complaint items.
Mr Airey and Mr Just agreed the scope of works necessary to correct the roof roll as set out in the Just second report at para 5.12.1 Exhibit 1 pages 711 to 725.
Mr Vincenzo Pruiti of VP Roofing Pty Ltd, a roof carpenter, provided a witness statement with respect to various quotations he had provided to the respondent for remedial work on the property. Mr Prutit also gave oral evidence and was crossexamined by the applicant.
The quote by Mr Prutti for the works outlined by Mr Just to correct the roof roll was $1,300; Exhibit 1 page 637. Mr Airey did not comment on the cost of those works.
Mr Pruitit confirmed he would carry out the work for the applicant for the quoted price of $1,300. He said if it took him longer he would not charge the client more. He did at one point however agree that it was possible it might take two tradespersons at most an extra half day.
The applicant did not provide any costings
We accept the quote (Exhibit 1 page 636) of Mr Prutit as being a reasonable cost for the works necessary to correct the roof roll but consider we should allow for the cost of an additional half day as Mr Prutit accepted that it might take longer than he had anticipated and another contractor is unlikely not to charge the applicant for the extra time.
We find it is more likely than not that the reasonable cost for the necessary work outlined by Mr Just to remedy the roof roll is $1,740.
We also find that it would be necessary to have proper engineering drawings drafted and that the reasonable cost of this would be $2,000.
At the time of hearing no further remedial work on the western side of the property was required to rectify the vertical movement identified by Mr Airey in the first Airey report.
Vertical Movement of the roof frame
Mr Airey in the Airey second report sets out that in his opinion the cracking reported in respect of item 3 and 6.1 to 6.5 was not solely by the roof roll and other defects in the roof frame causing a vertical movement in the roof frame contributed to the cracking.
The applicant agreed that when Mr Just inspected the property there was no vertical movement of the roof frame as repairs had been carried out to rectify this problem.
We accept the evidence of Mr Airey and are satisfied and find that the lack of support to the rafters in the theatre and living room and ensuite more likely than not contributed (together with the roof roll) to the movement of the roof that caused the cracking the subject of complaint item 3 and 6.1 to 6.5 of the OTR.
We are further satisfied and find that lack of support would be remedied by the provision of propping to the rafters in the theatre and living room and additional support for the dog leg in the ensuite as part of the cause of the cracking referred to in the OTR.
The listed repairs carried out on the roof frame by Mr Lunt/Mr Bulla are more extensive than the extra bracing identified by Mr Airey as required in the roof frame in the areas of the theatre and living room; Airey second report Exhibit 1 at page 542.
The Tribunal has no evidence from the applicant as to what was the actual cost of the extra bracing for the areas over the theatre and the living room and the additional support for the dog leg in the ensuite.
Mr Pruiti, provided a quote for the works the subject of Mr Airey's first report necessary to provide additional bracing for the areas over the theatre and the living room and the additional support for the dog leg in the ensuite being $900; Exhibit 1 page 639.
Whilst Mr Prutit in his witness statement says the installation of collar ties would not be possible, in his quotation he refers to the photographs in the first Airey report and the floor plans as the basis for his quoted works.
We are satisfied that Mr Pruiti's quotation (Exhibit 1 page 639) outlines the works necessary to correct the vertical movement of the roof frame discussed by Mr Airey.
We find it is more likely than not that the reasonable cost for the necessary work to carry out the necessary additional bracing to stop the horizontal movement of the roof frame in the areas the subject of the OTR is that provided by Mr Prutit namely, $900 for the following reasons.
Firstly we found Mr Prutit to be a reliable witness with respect to his quotation for the works necessary to correct the roof roll and his estimate of the time and materials necessary to be reasonable.
Secondly we had JLA Constructions' 9 April 2019 invoice for the work to the roof frame undertaken by JB Carpentry, Exhibit 1 page 412, which is for the amount of $3,696 ($2,800 + 20% builder's margin + GST). A considerable amount of work was undertaken over the entirety of the roof frame and proportionally $900 would seem to be not unreasonable.
Thirdly the applicant did not seek to attribute any particular portion of the works undertaken by Mr Lunt/Mr Bulla to repairs to stop the vertical movement of the roof over the western side of the property or challenged Mr Prutit's quote.
However the Tribunal does not place significant weight on the lack of challenge and failure to seek to separate, by area, the work undertaken by Mr Lunt. We note that the applicant was not represented, did not accept that all the work undertaken by Mr Lunt/Mr Bulla should not be paid by the respondent and appeared at times to not understand fully what should or could be asked in crossexamination.
Repairs to ceilings
Mr Quaresimin gave evidence that he had repaired the ceilings throughout the property by propping them up, re-screwing them and grouting over the joists where it was necessary to do more than a local repair.
There is no evidence linking the ceiling failure to the cracking in the areas identified in the original complaints the subject of the OTR.
We find that the repairs to the ceiling were due to ceiling failure and not related to or connected with the lack of bracing or roof roll over the western side of the property. We find the respondent is not responsible for any costs associated with the repairs carried out by Mr Quaresimin.
Painting
The applicant did not provide quotations for repainting only the areas the subject of the OTR.
The only quote in the hearing book from JLA Constructions, was for 'Paint ceilings throughout Patch and paint internal walls touch up one full coat, Garage, Alfresco & eaves for a total of $9,526'.
The other quotes (Exhibit 4) being the four quotes the applicant informed us her tenant had obtained in July 2020 for the repainting of the whole of the house (including the necessary repairs to the cracks in the cornices etc.) ranged from $8,745 to $4,499.
None of the quotes provided by the applicant set out the hourly rate of the painter or the cost of materials.
Mr Carbone in his oral evidence informed the Tribunal that his hourly rate was $55 per hour including GST and the cost of materials was $220 per ten litres of paint. In respect of quote 21 Exhibit 1 page 634 he had allowed 10 hours for labour and $100 for materials.
From the Tribunal's knowledge of costings these rates did not seem unreasonable. We informed the applicant of our view and she indicated she did not challenge the costings on the basis of the rates for materials or labour. The applicant's challenge to Mr Carbone's quote she submitted was on the basis the work could not be completed in the time allowed for by Mr Carbone. In particular the applicant put to Mr Carbone and submitted to us that it would not be possible to patch paint the walls and/or ceilings and that all would need to be re-painted.
Mr Carbone when challenged by the applicant on the time necessary to complete the work the subject of both quotes 21 and 23 confirmed that the work would be completed in the time allowed and that he had allowed for any extra time that it might take if in fact there was a whole wall he had to paint as the colour could not be matched. He also confirmed he believed he would be able to match the paint.
We had no opportunity to question the authors of the quotes provided by the applicant to ascertain how the quotes were calculated.
We have no reason for not accepting the evidence of Mr Carbone that he would be able to match the paint and would therefore not have to paint all the walls and or ceilings or that he could complete the work in the time he had allowed. He did however when pressed accept that it may be possible that it would take another 'couple of hours' if he had to repaint the walls.
The Tribunal notes that Mr Carbone considered the quotes of $4,499 and $5,139.20 (Exhibit 4) for the repainting of the whole of the property as reasonable. This provides the Tribunal with comfort that Mr Carbone has not been unreasonable in his estimates of the time it would take to complete the necessary remedial work.
We accept and find the costings of Mr Carbone to be the reasonable cost of the necessary remedial work together with an allowance for a further two hours given the possibility that the paint on some walls may not be able to be matched.
Further cracking to the property
The respondent accepts that it is required to remediate the cause and effect of the cracking over the western side of the property. It denies that the further cracking is caused by the roof roll (the cause of the cracking the subject of complaint items 3 and 6.1 to 6.5) or that it is liable to remediate the further cracking.
It is not clear if Mr Airey was of the view that the roof roll caused or only contributed to the further cracking. Mr Airey was very clear that the defects in the roof frame as identified in the report of Mr Quaresimin or Mr Lunt (Exhibit 1 pages 28 to 40) were significant and were a cause of the further cracking and that after the repairs had been completed there was no further cracking.
In the Just second report, Mr Just states that the roof movement/roof roll had not caused any of the further cracking.
We prefer the evidence of Mr Just to that of Mr Airey's that the roof roll or the lack of bracing over the western side of the property did not either cause or contribute to the further cracking for the following four reasons.
Firstly, Mr Just who based his opinion of the further cracking on the first Airey report (Exhibit 1 page 579) noted that the further cracking was less than 2 millimetres in width and therefore within the tolerances of Western Australia Guide to Standards and Tolerances 2019; Airey report Exhibit 1 page 579.
Mr Just was not able to view the further cracking as some building work had been completed on the roof frame and remedial work to the ceilings undertaken when he inspected the property on 24 June 2020 prior to the Just second report; Exhibit 1 pages 238 to 248.
Secondly, Mr Airey in the Airey second report (Exhibit 1 page 541) does not contest that the further cracking is within tolerance. If the further cracking is within tolerance it does not indicate any faulty or defective workmanship and more likely to be due to the age of the property.
Thirdly, the evidence of the applicant was that subsequent to the significant work on the roof frame completed by Mr Nelidis and the ceiling work by Mr Quaresimin (Exhibit 1 pages 412 and 495 to 497) no new cracks had appeared, even though the roof roll had not been remedied.
Fourthly the nature of the repairs carried out by Mr Quaresimin, propping up the ceilings, re-screwing them and grouting over the joists where it was necessary, signified a complete failure of the ceilings. This failure was possibly due to a failure of the glue or a lack of sufficient gluing of the ceiling sheets at the time of construction rather than a failure of the ceiling frame. The failure of the ceilings did not cause any cracking in the areas identified in the original complaints the subject of the OTR.
We are not satisfied that the further cracking in the property was caused or contributed to by the roof roll or lack of bracing on the western side of the house.
Compensation
The applicant and respondent filed written submissions as to the Tribunal's power to make a damages order for non-pecuniary loss pursuant to s 36(1)(c) of the BSCRA Act.
The respondent's submissions to the effect that the Tribunal does not have jurisdiction to make an order for non-pecuniary damages are very persuasive. However in Dumbreck Senior Sessional Member Raymond, considered the question of jurisdiction and did make an award of non-pecuniary damages.
In any event regardless of whether the Tribunal has the power to make an order it is for the Tribunal to determine if it should exercise its discretion and make such an order.
The Tribunal accepts that the applicant's concern with the deficiencies with the roof frame generally caused her great distress and inconvenience. However this was not a complaint the subject of the OTR and therefore not within the Tribunal's jurisdiction. The issue before us relates solely as to whether the respondent had complied with the OTR and any consequences flowing from that.
The Tribunal in Dumbeck determined that it is only in unusual circumstances that such an award should be made. As the Senior Sessional Member pointed out all building disputes carry with them stress and inconvenience and indeed just the process of entering into a home building contract may also do so.
Only a part of the stress and inconvenience the applicant suffered in respect of the problems with her property can be attributed to the respondent's failure to comply with the OTR.
Much of the stress the applicant has pointed to relates to the potential ceiling failure, a matter that was not found by us to relate to the respondent's failure to comply with the OTR.
There was undoubtable stress suffered by the applicant when informed the roof was moving and needed remedial work to correct the problem. However it is the same sort of stress suffered by many owners who find out work done by a builder is faulty.
There was undoubtable inconvenience to the applicant in having to have various inspections carried out and to obtain expert reports. Indeed the applicant has documented the many hours she has spent dealing with these various issues. There is always inconvenience suffered by owners who need to have faulty work remediated - the degree and the extent of the inconvenience and time spent will of course vary.
Much of the applicant's stress and inconvenience related to roof and ceiling issues not the subject of the OTR or the respondent's failure to comply with the OTR.
From the outset of these proceedings it was evident that the applicant was distressed by the now state of her property which, with some justification she attributes to the initial failure of the respondent to build the roof of her property in a proper workmanshiplike manner.
We note however that the applicant did obtain building reports following completion of the property in 2007 to assist her in making her complaint to the BDT. The inspector(s) at that time found no fault with the manner in which the roof of the property was constructed other than in respect of specific cracks the subject of the OTR. In particular there was no suggestion that the roof had not been built in compliance with Australian Standards.
Conclusion
Complaint items 4 and 7
We are not satisfied that the respondent has not completed the required works and has not complied with the OTR in respect of complaint items 4 and 7 and decline to revoke the OTR in respect of those complaint items and make a BRO pursuant to s36 (1)(b) or (c).
Complaint item 6.1 - wall crack
We are satisfied and find the respondent has not complied with the OTR in respect of this complaint item.
We find that the cost of the remedial work necessary to remedy this item of complaint is $425 that is the costing provided by Mr Prutti.
Complaint items 3 and 6.1 (other than the wall crack) to 6.5
We are satisfied and find the respondent has not complied with the OTR in respect of these complaint items.
We find the cost of the works to remedy the cause of the roof roll are those provided by the respondent namely $1,740 together with the further cost of $2,000 for the preparation of appropriate drawings being a total of $3,740.
We are satisfied and find that the vertical movement of the roof frame over the western side of the property contributed to the cracking the subject of the OTR and that repair works to the roof frame carried out by the applicant were necessary to remedy the cracking the subject of the complaint items the subject of the OTR. We find the cost of these works to be $900.
Painting
We are satisfied and find that the reasonable cost of the aesthetic repairs to the cracking the subject of complaint items 3 and 6.1 to 6.5 is that in Mr Carbone's quote 21 (Exhibit 1 page 634) of $650 together with an additional sum of $110 as an allowance for the possible extra time that a painter other than Mr Carbone might charge that is a total of $770. There was no evidence before us that might suggest extra paint or any further materials might be required.
In total we find that the cost of the works to remedy the cause and effect of complaint items 3 and 6.1 to 6.5 is $5,410.
Should we exercise our discretion pursuant to s 51(2) of the BSCRA?
We are satisfied that it is appropriate to revoke part of the OTR and make a building remedy order pursuant to s 36(1)(b) as the work the subject of the OTR in respect of complaint items 3 and 6.1 to 6.5 are faulty or unsatisfactory, the cost of the remedial works are proportionate to the remedy sought and the respondent does not oppose an order being made.
Compensation
Without determining if the Tribunal has the power to make a damages order for non-pecuniary loss we have determined that if it did we would not exercise our discretion and make such an order for the following reasons.
Only part of the stress and inconvenienced suffered by the applicant can be attributed to the respondent's failure to comply with the OTR.
We are not satisfied the stress and inconvenience suffered by the applicant in respect of the matters related to the respondent's failure to comply with the OTR was over and above that normally experienced by a home owner in a dispute with a builder in respect of faulty or unsatisfactory work.
We decline to make an order for stress and inconvenience sought by the applicant.
Orders
1.Pursuant to s 51(2)(a) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) the Tribunal revokes part of the Building Disputes Tribunal's Order To Remedy being part of order 1 relating to item 3 of the Notice of Assessment and part of order 2 of the Order To Remedy being items 6 to 6.5 of the Notice Of Assessment.
2.Pursuant to s 51(2)(b) and s 36(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) the respondent is to pay the applicant the sum of $5,835 in respect of part of the Order To Remedy being order 1 complaint item 3 of the Notice Of Assessment and part of order 2 of the Order To Remedy being items 6 to 6.5 of the Notice Of Assessment.
3.The matter is to be listed for directions to consider any further orders sought by the parties in respect of costs and/or time to pay.
4.The parties are to provide their unavailable dates to attend the above directions hearing by 4 pm on 15 December 2020.
5.The parties may attend the directions hearing by telephone.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS P LE MIERE, MEMBER
9 DECEMBER 2020
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