HIPPYDAYZE PTY LTD and MENER GROUP PTY LTD - [2019] WASAT 92

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   HIPPYDAYZE PTY LTD and MENER GROUP PTY LTD [2019] WASAT 92
MEMBER:   MS C WALLACE, SENIOR MEMBER
MR D MOROLLA, SESSIONAL MEMBER

HEARD:   10 & 11 SEPTEMBER 2019
DELIVERED          :   15 OCTOBER 2019
FILE NO/S:   CC 1436 of 2017
CC 1438 of 2017
CC 1439 of 2017
CC 754 of 2019
CC 755 of 2019
CC 756 of 2019

BETWEEN: HIPPYDAYZE PTY LTD
Applicant
AND
MENER GROUP PTY LTD
Respondent

Catchwords:

Building Services (Complaint Resolution and Administration) Act 2011 (WA) - Home Building Contracts Act 1991 (WA) - Misleading or deceptive conduct - Delay in achieving practical completion - Damages for breach of contract - Principle of mitigation of loss - Building service complaints - Exercise of discretion in making a building remedy order - Claim for compensation in building service complaints - Whether applicants are required to mitigation loss in noncontractual complaints - Failure to mitigate loss due to impecuniosity

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5(1), s 5(2), s 11(1)(d), s 36(1), s 36(1)(b), s 36(1)(c), s 38(1), s 38(1)(a), s 41(2), s 41(2)(d)(i), s 43(1)(a), s 49(1), s 58(2)
Home Building Contracts Act 1991 (WA), s 15A, s 17, s 17(1)(a)(ii), Pt 2

State Administrative Tribunal Act 2004 (WA), s 46(3), s 49

Result:

Partly successful

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	In Person

Solicitors:

Applicant	:	N/A
Respondent	:	N/A

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

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Burns v MAN Automotive (Aust) Pty Ltd (1986) 161 CLR 653
Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592
Clark v Macourt (2013) 253 CLR 1; [2013] HCA 56
Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64
Gemmill Homes Pty Ltd and Sanders [2018] WASC 179
Google Inc v ACCC (2013) 249 CLR 435
Hadley v Baxendale (1854) 9 Exch 341
Mener Group Pty Ltd and Hippydayze Pty Ltd [2019] WASAT 37
Mener Group Pty Ltd and Hippydayze Pty Ltd [2019] WASAT 58
Mener Group Pty Ltd and Hippydayze Pty Ltd [2019] WASAT 91
Nelson v Mardesic (1998) 22 SR (WA) 42
Robinson v Harman (1848) 1 Exch 850
Trengove and Celebration Nominees Pty Ltd [2012] WASAT 65
Vouzas v Bleake House Ptd Ltd [2013] VSC 534

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The Tribunal had before it six related applications brought by Hippydayze Pty Ltd (the applicant) against Mener Group Pty Ltd (the respondent) which were lodged with the Building Commissioner and then referred to the Tribunal pursuant to s 11(1)(d) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (the BSCRA Act).
The complaints were in respect of three home building work contracts (HBWCs) entered into between the applicant and respondent to construct three units on a parcel of land in the suburb of Gosnells in the State of Western Australia. The complaints alleged, pursuant to s 5(1) of the BSCRA Act, that the respondent had performed a regulated building service which had not been carried out in a proper and proficient manner or which was faulty or unsatisfactory. The applicant also raised complaints pursuant to s 5(2) of the BSCRA Act and s 17 of the Home Building Contracts Act 1991 (WA) (HBC Act) alleging various breaches of the HBWCs entitling the applicant to compensation, as well as an allegation that the respondent had engaged in conduct that was misleading or deceptive pursuant to s 15A of the HBC Act.
The most substantive complaint raised in the proceedings was a claim alleging breach of the HBWCs by the respondent failing to bring the works to practical completion within the contractual time period specified. Whilst the respondent admitted breach and conceded significant delay in reaching practical completion, it disputed the compensation claimed by the applicant, a claim being in excess of $100,000.
The respondent also lodged its own applications with the Building Commissioner alleging breach of the HBWCs due to the applicant's failure to pay the final progress payments issued by the respondent. Those applications were initially determined by the Tribunal differently constituted on 28 May 2019 (the Original Tribunal); Mener Group Pty Ltd and Hippydayze Pty Ltd [2019] WASAT 37. Subsequently the respondent filed an application pursuant to s 58(2) of the BSCRA Act seeking leave to review that decision (proceeding CC 943 of 2019). Leave to review was granted; Mener Group Pty Ltd and Hippydayze Pty Ltd [2019] WASAT 58. The hearing de novo was heard concurrently with these proceedings and reasons published; Mener Group Pty Ltd and Hippydayze Pty Ltd [2019] WASAT 91.
The history of the various related proceedings has some level of complexity and it is useful to refer to that history in passing, before considering the parties' respective positions in relation to the complaints to be determined by this Tribunal.

Procedural history

In December 2016 the applicant lodged its initial three complaints with the Building Commissioner. The three complaints were referred by the Building Commissioner to the Tribunal in July 2017 and became proceedings CC 1436 (in respect of unit B), CC1438 (in respect of unit C) and CC1439 of 2017 (in respect of unit A).
As already mentioned earlier, the complaints in each proceeding comprised a mixture of building service complaints and contractual complaints.
Proceeding CC 1436 of 2017 comprised 11 complaint items; proceeding CC 1438 of 2017 comprised 9 complaint items and proceeding CC 1439 of 2017 comprised 16 complaint items. It is not necessary for the purpose of this decision to list each individual complaint item.
The proceedings were mediated unsuccessfully a number of times by the Original Tribunal.
As mentioned, each proceeding included a contractual complaint alleging delay in which practical completion had been achieved by the respondent and seeking an order for compensation. Each proceeding also raised an allegation of misleading or deceptive conduct engaged in by the respondent by seeking an advancement of monies from the applicant prior to the relevant HBWCs being executed.
In February 2018 the applicant lodged three further complaints with the Building Commissioner in respect of the three units. The three new lodgements comprised a total of 95 complaint items, most of which were building service complaints made pursuant to s 5(1) of the BSCRA Act together with a small number of claims made pursuant to s 5(2) of the BSCRA Act and s 17 of the HBC Act alleging various breaches of the HBWCs.
In March 2018 the Building Commissioner referred the three new complaints to the Tribunal pursuant to s 11(1)(d) of the BSCRA Act and they became proceedings CC 708 (in respect of unit C), CC 709 (in respect of unit A) and CC 710 of 2018 (in respect of unit B).
The majority of the complaint items in proceedings CC 708, CC 709 and CC 710 of 2018 were settled by the parties following mediation by the Original Tribunal with final orders made on 22 August 2018. However, three building service complaints in proceeding CC 708 of 2018 and one building service complaint in proceeding CC 710 of 2018 were inadvertently omitted by the parties through the mediation process and were ultimately withdrawn by the applicant on 1 July 2019.
Whilst it is not strictly relevant to the current determination, it ought to be noted in the context of the procedural history of these proceedings that there was some level of confusion whilst the proceedings were being case managed by the Original Tribunal in respect of two matters: the relevant proceeding in which particular complaint items had been made; and as complaints were compromised by the parties, which complaint items remained outstanding.
This confusion, which appeared to be shared by the parties and the Original Tribunal, had the greatest impact in respect of proceedings CC 1436, CC 1438 and CC 1439 of 2017. In this regard the Original Tribunal made the following order on 24 October 2018 in proceedings CC 708, CC 709 and CC 710 of 2018:
1.It is noted that the only relevant aspects of matters CC 708-18, 709-18, and 710-18 that remain to be determined relate to the claims for damages/compensation by the owner.
The complaint referred to in order 1 above was in fact the claim made by the applicant in each of CC 1436, CC 1438 and CC 1439 of 2017 alleging breach of the HBWCs by the respondent in respect of the delay in reaching practical completion.
The ultimate impact of the confusion was that, other than one building service complaint in each of the proceedings which was listed for hearing and finally determined on 26 March 2019, all other complaints comprising proceedings CC 1436, CC 1438 and CC 1439 of 2017 were overlooked for some period of time and the files were administratively closed.
The contractual delay claim brought by the applicant against the respondent in relation to each of the three units was ultimately dismissed by the Original Tribunal on 21 January 2019. Whilst not expressly referring to the relevant provision, it appears clear from the terms of the order that the applicant's complaint in each proceeding was dismissed pursuant to s 46(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) for want of prosecution.
The applicant then proceeded to lodge three new complaints in respect of the three units with the Building Commissioner on 16 May 2019. Each application contained 24 complaint items which again comprised a mixture of building service complaints and contractual complaints. Those complaints were referred by the Building Commissioner to the Tribunal on 21 May 2019 pursuant to s 11(1)(d) of the BSCRA Act and became proceedings CC 754 (in respect of unit C), CC 755 (in respect of unit B) and CC 756 (in respect of unit A) of 2019.
The Tribunal held a directions hearing in respect of the new referrals on 4 June 2019 at which time it became apparent that they contained a repetition of complaints previously lodged by the applicant with the Building Commissioner and which had been referred to the Tribunal. The Tribunal also raised with the parties on that occasion that complaint item 1 in each of the new referrals was a re-agitation of the previous complaint dismissed by the Original Tribunal on 21 January 2019. Pursuant to s 49 of the SAT Act the applicant required leave of a judicial member to bring those complaints again.
Following the conclusion of the 4 June 2019 directions hearing the Tribunal compiled a list of outstanding complaint items in respect of which no final order had been made in the previous six proceedings to enable the applicant to consider whether the complaints should be withdrawn or whether they remained on foot.
On 17 June 2019 the Tribunal, constituted by Deputy President Sharp and Senior Member Wallace, heard the applicant's application for leave pursuant to s 49 of the SAT Act. At the conclusion of the hearing, oral reasons were delivered and an order made granting leave, thereby enabling the applicant's complaints seeking compensation due to the delay by the respondent in reaching practical completion to be programmed to final hearing.
A further directions hearing was then held by the Tribunal on 1 July 2019 in order to identify all outstanding complaint items and to program them to final hearing. On this occasion the applicant informed the Tribunal that it wished to withdraw all outstanding complaints in proceedings CC 1436, CC 1438 and CC 1439 of 2017 (some of which had been lodged afresh) other than in respect of the complaint alleging that the respondent had engaged in misleading and deceptive conduct. The applicant also sought leave, and was granted leave, to withdraw a number of complaint items in each of CC 754, CC 755 and CC 756 of 2019.
The Tribunal made an order that each of CC 1436, CC 1438, CC 1439 of 2017, CC 754, CC 755 and CC 756 of 2019 and CC 943 of 2019 were to remain as separate proceedings but were to be heard concurrently with evidence filed in each proceeding to be evidence in each other proceeding. The applicant was ordered to file any further evidence on which it intended to rely by 29 July 2019. The respondent was required to provide all further evidence that it wished to rely upon by 26 August 2019.
Upon the applicant filing its evidence it notified the Tribunal that it sought leave to withdraw a further complaint item and leave was granted.
On 7 August 2019 the Tribunal made an order requiring the respondent by 26 August 2019 to inform the applicant and the Tribunal in writing which lay and expert witnesses it required to attend the final hearing in order to question their evidence. Subsequently the respondent informed the Tribunal that it did not wish to question any of the applicant's witnesses.
Ultimately the final hearing commenced on 10 September 2019 for a duration of two days. The decision was reserved at the conclusion of the second day of hearing.
The complaint items at the time of the final hearing which were before the Tribunal for determination were:
1.In each of CC 1436, CC 1438 and CC 1439 of 2017 a complaint pursuant to s 5(2) of the BSCRA Act and s 17 and s 15A of the HBC Act alleging that the respondent engaged in conduct that was misleading or deceptive in respect of the circumstances in which the HBWCs were entered into and seeking compensation for loss or damage suffered pursuant to s 41(2)(d)(i) of the BSCRA Act.
2.The following complaints in each of matters CC 754, CC 755 and CC 756 of 2019:
(a)a claim pursuant to s 5(2) of the BSCRA Act and s 17 of the HBC Act alleging breach of the HBWCs by the respondent due to a failure to achieve practical completion within the contractual time period specified and seeking compensation for loss and damage suffered as a result pursuant to s 41(2)(d)(i) of the BSCRA Act (complaint items 1 and 18 in each proceeding);
(b)a claim pursuant to s 5(1) of the BSCRA Act alleging that the respondent performed a regulated building service which was not carried out in a proper and proficient manner or which was faulty or unsatisfactory by causing damage to a boundary fence, located at the boundary of the applicant's property and a neighbouring property, whilst undertaking preliminary site works and seeking a building remedy order pursuant to s 36(1)(b) of the BSCRA Act (complaint item 10 in each proceeding);
(c)a claim pursuant to s 5(1) of the BSCRA Act alleging that the respondent performed a regulated building service which was not carried out in a proper and proficient manner or which was faulty or unsatisfactory in respect of demolition and associated works to an existing property at the site and seeking building remedy orders pursuant to s 36(1)(b) and s 36(1)(c) of the BSCRA Act (complaint items 2 and 11 in each proceeding);
(d)a claim pursuant to s 5(2) of the BSCRA Act and s 17 of the HBC Act that due to the respondent's repudiation of each HBWC the applicant incurred loss and damage by incurring costs in changing the keys and locks in each unit and therefore is entitled to compensation pursuant to s 41(2)(d)(i) of the BSCRA Act (complaint item 15 in each proceeding);
(e)a claim pursuant to s 5(2) of the BSCRA Act and s 17 of the HBC Act alleging breach of the HBWCs due to the failure of the respondent to supply and install clothes lines and seeking compensation pursuant to s 41(2)(d)(i) of the BSCRA Act (complaint item 20 in each proceeding);
(f)a claim pursuant to s 5(2) of the BSCRA Act and s 17 of the HBC Act alleging breach of the HBWCs due to the failure of the respondent to supply and install a termite barrier replacement system and seeking compensation pursuant to s 41(2)(d)(i) of the BSCRA Act (complaint item 21 in each proceeding);
(g)a claim pursuant to s 5(1) of the BSCRA Act and s 17 of the HBC Act alleging breach of the HBWCs given that the respondent installed single bowl sinks in each of the kitchens of the three units rather than double bowl sinks and seeking compensation pursuant to s 41(2)(d)(i) of the BSCRA Act (complaint item 22 in each proceeding);
(h)a claim pursuant to s 5(2) of the BSCRA Act and s 17 of the HBC Act alleging breach of contract by the respondent due to the failure to supply and install mailboxes, bricked and rendered for each of the three units and seeking compensation pursuant to s 41(2)(d)(i) of the BSCRA Act (complaint item 23 in each proceeding); and
(i)a claim pursuant to s 5(2) of the BSCRA Act and s 17 of the HBC Act seeking compensation for stress and anxiety as a result of the alleged breaches of contract pursuant to s 41(2)(d)(i) of the BSCRA Act (compensation claimed as part of complaint item 1 in each proceeding).

Evidence before the Tribunal

All of the evidence filed by the parties in respect of the applicant's complaints was compiled by the Tribunal into a hearing book comprising two volumes. Volume 1 was received into evidence as Exhibit 1 and volume 2 was received into evidence as Exhibit 2. A separate hearing book was prepared by the Tribunal in respect of the respondent's proceeding, which was accepted into evidence as Exhibit 3. Annexures to the witness statement of Mr Glen Wilkins dated 20 July 2018 (pages 25-50 of Exhibit 2) were accepted into evidence as Exhibit 4.
As is ordinarily the case, the hearing books which were before the Original Tribunal when the respondent's contractual claim was initially heard, were before this Tribunal at the rehearing. The hearing books in this regard were accepted into evidence by the Tribunal as Exhibits 5-8.
In addition, during the course of the hearing the respondent tendered a document entitled 'Addenda Elemental Complete Slate' dated 13 November 2015 which was accepted into evidence as Exhibit 9.
The Tribunal was also assisted by the receipt of oral evidence from the following witnesses:
(a)Mr Glen Anthony Wilkins, director of the applicant;
(b)Mr Rodney Martin, a lay witness relied upon by the applicant;
(c)Mr Richard Field, principal structural engineer, GF Consulting Structural Engineers, an expert witness relied upon by the applicant; and
(d)Mr Todd Buckley, director of the respondent.

Relevant factual background

The applicant purchased the relevant property in the suburb of Gosnells in late 2010. At the time of purchase it had an existing single storey brick and tile three bedroom residential property on the site. The applicant rented out the rooms in the existing property as a source of income.
In mid-2014 Mr Wilkins, the sole director of the applicant, began making enquiries with various building companies seeking to obtain quotes to develop the land located at the rear of the existing property as an investment.
Following those early discussions, Mr Wilkins decided to build three investment units on the site. He discussed his proposal with Mr Martin in or about August 2014. At that time Mr Martin was employed as a sales representative of Residential Building WA Pty Ltd, trading as In Vogue. Mr Martin gave Mr Wilkins a rough estimate at that early stage of approximately $600,000 to $650,000 to build the three units.
On 22 August 2014 the applicant paid the sum of $3,500 to Mr Martin to prepare the relevant drawings.
In October 2014 the drawings had been completed but at that stage the price to construct was outside of what the applicant could afford. Mr Wilkins and Mr Martin had another discussion at this time regarding the applicant's plans to rent the units out to enable Mr Wilkins to retire and live off the profit. Mr Martin told Mr Wilkins that he had a family friend who may be able to undertake the project within the applicant's budget. The family friend was Mr Buckley, director of the respondent.

Mr Martin and Mr Buckley met to look over the drawings and to discuss the project in early November 2014. Mr Martin's recollection of the discussion at that time was that he informed Mr Buckley that the intention of the applicant was to develop the property and build three units for the purpose of renting them out long-term; page 65 of Exhibit 2. On 3 November 2014 Mr Buckley confirmed with Mr Martin that he could construct the three units for an indicative price of under $630,000; page 66A of Exhibit 2. Mr Buckley denied that he was told by Mr Martin that it was the applicant's intention to rent out the three units following construction; ts 104, 10 September 2019.
Mr Wilkins and Mr Buckley met on site in or around mid-November 2014 at which time Mr Buckley confirmed with Mr Wilkins that the three units could be constructed at a total price of around $620,000.
It was important to Mr Wilkins at this stage that he ensure that the project was financially viable. He therefore contacted Ray White Real Estate in Canning Vale to ascertain the likely rent that he would achieve once the three units were constructed. He received a rental appraisal on 13 November 2014 informing him that the properties should receive a rent of approximately $360-$380 per week; page 111 of Exhibit 2. Mr Wilkins decided at that stage to proceed with the respondent.
A further meeting then took place on site between Mr Wilkins and Mr Buckley in January 2015. It seems that primarily the discussion was in respect to site works that needed to be undertaken. There was also a discussion in regard to the requirement for preliminary works to be performed to ensure access to the rear property and available underground power. In respect of access, a carport attached to the existing property needed to be demolished in order to create an access track. Western Power works were also required in order to remove an aerial service for the existing property and to establish underground power sufficient to service the existing property and the three additional proposed units.
The parties' positions are consistent that this conversation took place at this time and they also agree that Mr Buckley estimated that the demolition and Western Power works would cost approximately $20,000 to perform. The divergence in positions is in respect to whether the performance of the works was a stand-alone contract or whether it constituted site works that formed part of provisional sum allowances in the three HBWCs which were soon to be entered into by the parties.
The applicant's position is that the agreement was to pay $20,000 upfront to enable the project to proceed without delay but which would then be refunded once the HBWCs were executed and works had started to commence. The respondent's position is that the works were additional and entirely separate to the anticipated HBWCs.
On 19 May 2015 the respondent issued an invoice to the applicant in the amount of $20,342 in respect of the demolition and Western Power works; page 85 of Exhibit 2. The invoice identified that the following works would be performed by Western Power and others:
(a)removal of existing aerial service from pole S84195;
(b)installation of new 25LV cable off existing 240LV cable at the base of the pole S84195. T-Joint 25LV cable to 240LV cable; and
(c)installation of new mini pillar LSH(DCSH U8) of proposed driveway. Approximately 3 metres from common boundary of #128.
The Western Power works totalled $10,542. The second part of the invoice was in respect of demolition of the existing carport in the amount of $9,800.
On 22 May 2015 the parties entered into three HBWCs in respect of the three units each valued in the amount of $202,613.33.
On 9 June 2015 the applicant paid $20,000 towards the 19 May 2015 invoice with the remaining $342 paid on 10 June 2015.
In July 2015 the works commenced in relation to the demolition of the existing carport. Then in October 2015 other site works commenced.
On 13 November 2015 the building permit in respect of the three units was issued by the City of Gosnells.
In early December 2015 Mr Wilkins noticed that there was a significant lean in the boundary fence toward the neighbour's property that appeared to have been caused by piles of sand being deposited against the fence during the course of the respondent undertaking the site works. This was communicated to the respondent on 7 and 8 December 2015 by way of email; pages 132 and 134 of Exhibit 2.
On the basis that the HBWCs allowed 180 working days for completion, the applicant had been anticipating that the construction would be concluded in or around March 2016. This did not occur.
On 20 June 2016 Mr Wilkins requested, for the first time, a breakdown of expenditures in respect of the provisional sums contained in each of the HBWCs; document 18, volume 2 of Exhibit 4.
On 21 June 2016 the respondent requested payment for lock-up in respect of unit C and in July 2016 requested lock-up payment in respect of units A and B. The lock-up payments were paid by the applicant.
On 28 June 2016 Mr David Hillman leased the front master bedroom in the existing property for $190 per week.
On 4 July 2016 the respondent provided costings in respect to each of the three units which had been incurred in respect of electrical and plumbing, site hire and earthworks and site clean as at 22 June 2016. On 4 July 2016 the applicant responded by seeking a detailed breakdown of the provisional sums. The respondent informed Mr Wilkins that because the works were continuing to be carried out, the final breakdown would not be able to be provided together with supporting invoices until practical completion had been reached; document 20, volume 1 of Exhibit 4.
Also around this time, in early July 2016, Mr Wilkins first noticed ceiling damage in two of the bedrooms in the existing property. Photographs were taken of the cracked ceiling gyprock plasterboard; document 19, volume 2 of Exhibit 4. The respondent was informed of this issue by email on 11 July 2016; page 128 of Exhibit 2.
Having received no response, Mr Wilkins emailed the respondent again on 30 July 2016 noting the following:
This weekend, the sagging of the roof became so bad, the gyprock inside the bedroom closest to the wall, has cracked, and is now at risk of falling. Could you please advise if Todd has made arrangements for this repair soon or not, as we will have to start repairs asap. We have started to call around looking for trades people due to the urgency, but needed to ensure we were not interfering with Todd's works, however given this has been an ongoing issue, we feel we are being left no option but to repair ourselves, to ensure no further damage to the house occurs.
Awaiting your reply.
(page 129 of Exhibit 2)
On 5 August 2016 the applicant provided the respondent with a notice of proposed complaint to be filed with the Building Commissioner. The proposed complaint included a complaint in respect of the damage to the roof of the existing property. The applicant then proceeded to obtain independent expert reports in respect to the existing property and in respect to what defects existed in each of the three units.
Around late August 2016 Mr Hillman, the applicant's tenant of the master bedroom in the existing property, attempted to secure the ceiling with some screws to try and prevent it from collapsing; page 37 of Exhibit 2 and ts 83, 10 September 2019. However, on 14 September 2016 Mr Hillman vacated the property because of his concern that the ceiling was leaking water and would collapse; pages 38 and 67 of Exhibit 2.
Eventually the ceiling in the front master bedroom of the existing property collapsed in December 2017. When it collapsed it brought down the ceiling fan which damaged the bedroom furniture, a television and the timber flooring.
On 22 January 2018 the respondent declared that practical completion had been achieved and issued the final progress payments in respect to each of the three units. The final progress payments were not paid by the applicant on the basis that it contended that practical completion had not been achieved.
On 23 February 2018 the applicant discovered that the air conditioning systems had been decommissioned due to non-payment of the contractor.
On 7 March 2018 Mr Wilkins observed that the hot water systems to units A and B had been removed.
Then on 17 March 2018 the air conditioning contractor, Mr Adam Kable, attended the property and informed Mr Wilkins that he was there to remove the air conditioning systems due to non-payment by the respondent. The air conditioning units were removed on that date.
On 20 March 2018 the respondent undertook rectification works requested by the applicant which included the installation of puddle flanges and rectification work to the stairs.
On 22 March 2018 Mr Buckley attended the site and removed the hot water unit at unit C; page 44 of Exhibit 2.
On 27 March 2018 the applicant terminated each of the HBWCs and took possession. The termination notice asserted repudiatory conduct by the respondent in two material aspects:
(a)an overrun of the date for practical completion of nearly two years; and
(b)the removal of the air conditioning systems and hot water units, after the date that the respondent claimed practical completion had been achieved.
The termination notice accepted the respondent's repudiation and gave formal notice of termination; document 46, volume 1 of Exhibit 4.

CC 1436, CC 1437 and CC 1439 of 2017

Complaint of misleading or deceptive conduct

Relevant legal principles

Section 5(2) of the BSCRA Act entitles an applicant to make a complaint in respect of a HBWC about a matter referred to in s 17 of the HBC Act. Section 17(1)(a)(ii) refers to provisions in Pt 2 of the HBC Act. Section 15A is contained within Pt 2 of the HBC Act and provides as follows:
A person who is a builder or an owner must not, in connection with -
(a)the formation or execution of a contract; or
(b)negotiations to vary a contract after execution; or
(c)the circumstances in which a contract or variation of contract is entered into,
engage in conduct that is misleading or deceptive.
One of the most useful and often cited statement of the relevant principles applied when determining whether conduct is misleading or deceptive is that of McHugh J in Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592 at [109] as summarised by Macaulay J in Vouzas v Bleake House Ptd Ltd [2013] VSC 534 at [107]:
•whether the conduct is misleading or deceptive is a question of fact;
•in determining whether a contravention of the particular statutory provision has occurred the task is to examine the relevant course of conduct as a whole in light of the relevant surrounding facts and circumstances;
•it is an objective question that the court or tribunal must determine for itself; and
•the effect of any relevant statements or actions or any silence or inaction occurring in the context of a single course of conduct must be deduced from the whole course of conduct.
The standard of proof is on a balance of probabilities. However, given the seriousness of the allegations in complaints of misleading or deceptive conduct, it is necessary for the Tribunal to feel an 'actual persuasion' of the occurrence of the oral representation; Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361.
It is not necessary for the Tribunal to find that the respondent intended to mislead or deceive the applicant. Contraventions of the legislation can occur even in circumstances where a respondent has acted reasonably and honestly; French CJ, Crennan and Kiefel JJ in Google Inc v ACCC (2013) 249 CLR 435 at [6]-[9].
In claims of misleading and deceptive conduct there are therefore three questions that need to be answered:
1.Was the alleged representation made?
2.If established that the representation was made, was it misleading or deceptive?
3.Did the applicant rely on the representation such as to cause loss or damage? If so, what is the quantification of that loss or damage?

Evidence relied upon by the parties

The applicant relies solely on the evidence of Mr Wilkins in relation to this complaint. In respect of whether the representation was made by the respondent, the applicant's contention is that an oral representation was made through the respondent's director, Mr Buckley, to Mr Wilkins in or about January 2015. Mr Wilkins' evidence is set out at pages 27 and 28 of Exhibit 2, being his 2019 witness statement filed in these proceedings.
Mr Wilkins gave evidence in his witness statement that Mr Buckley told him in January 2015 that the demolition of the carport of the existing property would be included in the HBWCs as site works and included:
•demolition of the back room and the carport on the existing property; and
•the removal of trees, two sheds, the basketball court and sand levelling of the lot.
In or about this time, in early January 2015, Mr Wilkins states (page 28 of Exhibit 2) that Mr Buckley also told him that a power supply installation by Western Power was required and that this was also included in the site works as provided for in the HBWCs.
Mr Wilkins dealt with the matter in more specificity during his oral evidence at the hearing. He gave the following evidence to the Tribunal:
WILKINS, MR: … Todd was like, you know, 'If we remove the side of the house now and drop the power line, we can get in there quick and get it ready for the trucks'. So, to come in and, you know, level out, so it's all ready to go bang, bang, bang, before the finance had come through. So I said, 'Okay, no worries. We'll send the' I said that's right, 'Is that' - you know, 'Is that included in the site works?' 'Yes, it is'. 'Cool. No worries'. 'How will I get that money back?' 'Oh, at the end it will come off'. And so I'm, 'Okay. No worries'. So I said to him, I said, 'Well, if you're going to send me an invoice through for what you're doing'. …
(ts 55, 10 September 2019)
The Tribunal questioned Mr Wilkins in relation to his perusal of the HBWCs which were executed on 22 May 2015 as follows:
TRIBUNAL: So when you looked through the contract, did you see anything in there that provided for a payback or deduction for the amount that you've paid? Was there any did you check for any provision?
WILKINS, MR: No. … I was just going off what he said: that it was part of site works.
(ts 56, 10 September 2019)
The Tribunal also questioned Mr Wilkins in relation to the addenda to the HBWCs and asked the following questions:
TRIBUNAL: Do you see that it says: Demolition not included?
WILKINS, MR: Yes. I can see that there. Yes.
TRIBUNAL: Do you recall looking at that which might have indicated that perhaps the 20,000 was not part of the site works because your contract didn't include demolition?
WILKINS, MR: Yes. I'm just trying to think back. I - I wasn't really that thorough back then.
(ts 57, 10 September 2019)
Mr Buckley in oral evidence before the Tribunal strongly refuted the evidence of Mr Wilkins in regard to any oral representation being made. Mr Buckley gave evidence that the conversation that took place was as follows:
BUCKLEY, MR: I said, 'You've got a garage on the right or a carport on the right-hand side'. I said, 'So, first of all, you can't get access delivery of the property, so that needs to be demolished. You need to create an access track. Second point is you have a power line that sits outside the house that will create obstruction to trucks in terms of height'. … I said 'Okay. You're happy you can get all that done?' 'I I'm not I'm not confident. I wouldn't know where to start with Western Power or demolition or anything like that.' I said, 'Not a problem.' I said, 'My company is happy to do it and we can do it but we're going to charge you for it', you know, 'And this is what this is roughly sort of what we're looking at'[.]
(ts 111, 10 September 2019)
Mr Buckley also gave evidence to the Tribunal in respect to the works involved:
… and this quote is here in terms of Western Power, item 1, is purely for Western Power's works. To clarify that, works are sent off to Western Power, they come back with a quote. They say, 'Yes. This is what it's going to cost us to remove this, put in underground power, upgrade the power dome so it can service four one (indistinct) house and three existing units.' They sent back the quote and you pay for those works and then they go and do it. It's not on an account whatsoever, so you pay for it and then they go do the works or book it when they're free. Their subcontractors go and do it. It's not technically Western Power and I have no control over that whatsoever. This was explained to Mr Wilkins. I said, 'Listen, I've got to go away to Western Power, I've got to get quotes to get these power lines removed from overhead to underground.' That was all done. At no stage did I say, 'This is part of the building contract' … If this invoice or works were part of the contract, it would state in the contract that those works are part of that in this particular contract, so it's clearly a separate agreement and it always has been a separate agreement.
(ts 111, 10 September 2019)
The invoice each witness mentions in their evidence appears at page 85 of Exhibit 2 and is dated 19 May 2015 in the amount of $20,342; see [44]-[45] above.

Determination

The applicant submitted to the Tribunal that but for the misleading and/or deceptive representation made by the respondent, it would not have made the payment of $20,342 and would have, alternatively, priced those works with other registered builders.
In the Tribunal's view, the alleged oral representation, in the terms identified by Mr Wilkins in his oral evidence, was not made by Mr Buckley. Whilst the Tribunal accepts Mr Wilkins' evidence that there was a discussion which took place in January 2015 and an agreement reached by the parties that the respondent would undertake the works as described in the 19 May 2015 invoice and that those works were generically referred to as 'site works', the Tribunal does not accept that Mr Buckley said words to Mr Wilkins to the effect that the cost of those works would be refunded to the applicant.
In the Tribunal's view, it is more probable that the discussions which took place between the parties led to some confusion on Mr Wilkins part because it appears that the discussion in January 2015 encompassed both the additional Western Power and demolition works, as well as the site works which were to be performed under the HBWCs. It appears clear to the Tribunal that Mr Wilkins believed that all site works would be covered by the HBWCs. The Tribunal, however, does not accept that Mr Wilkins was of this view because of an oral representation made in the alleged terms by Mr Buckley.
In this regard the Tribunal found Mr Buckley to be a credible witness in his oral evidence which has been referred to above. In addition, Mr Buckley's evidence is corroborated by the contemporaneous documents that were created at the time including:
(a)The 19 May 2015 tax invoice was clearly a stand-alone document and did not refer to any set off or anticipated deduction or pay back of the $20,342.
(b)The HBWCs which were entered into by the parties on 22 May 2015 clearly do not include the relevant works identified in the 19 May 2015 invoice.
(c)In particular, the addenda to each of the HBWCs which were executed by the applicant on 24 May 2015 specifically under the heading 'site works' identified that demolition was not included; page 407 of Exhibit 1.
(d)None of the HBWCs executed by the parties contained any provision providing for a refund to the applicant in respect of site works paid upfront.

Lastly, if we are incorrect in our finding that the alleged representation was not made, the Tribunal in any event would be unable to find that the applicant has suffered any loss or damage. Although the applicant has submitted to the Tribunal that, but for the representation being made, it would not have made payment and would have obtained quotes from other builders to perform the works, the applicant failed to provide any evidence to the Tribunal that it could have secured another builder to perform the works at a lesser price. It may in fact have been the case that the applicant could not have secured a builder to perform the works at a lesser price. But in any event, given that there was no evidence of any loss suffered, the claim could not succeed.
For those reasons the claim for misleading or deceptive conduct which has been made in each of proceedings CC 1436, CC 1438 and CC 1439 of 2017 will be dismissed.

CC 754, CC 755, CC 756 of 2019

Claim for delay in reaching practical completion

It was not in dispute in the proceedings that there had been significant delay in the respondent reaching practical completion of each of the three units and the respondent conceded that it had breached clause 9 of each of the HBWCs in respect of time for performance.
What is in dispute between the parties is whether the applicant has suffered loss and damage in the nature that it asserts and if so whether that loss or damage is recoverable as against the respondent. In this regard the claim made by the applicant is set out in the expert report of Mr Michael Watson of Advali dated 7 February 2019 which appears at pages 289-293 of Exhibit 1 as follows:
(a)loss of rent in respect of unit A during the period 8 August 2016 to 27 March 2018, being 85 weeks at $300 per week totalling $25,500.
(b)loss of rent in respect to unit B during the period 8 August 2016 to 27 March 2018, being 85 weeks at $300 per week totalling $25,500.
(c)loss of rent in respect to unit C during the period 8 August 2016 to 27 March 2018, being 85 weeks, at $325 per week totalling $27,625.
(d)the applicant also claims interest charged on its mortgage up to 31 January 2018 in the amount of $28,142 plus interest charged on an ANZ credit card held in the name of Mr Wilkins which was used to purchase replacement air conditioning units and on which interest was charged in the amount of $974.

Relevant legal principles

The general rule in respect of damages for breach of contract is as stated by Parke B in Robinson v Harman (1848) 1 Exch 850 at 855:
The rule of the common law is, that where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed.
An applicant cannot, however, achieve betterment or a superior position through an award of damages for breach of contract, than the position they would have been in if the contract had been performed; Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64at 82.
As to the measure of damages, or what type of loss an applicant can claim, it is necessary to apply the rules as set out in the well-known case of Hadley v Baxendale (1854) 9 Exch 341 where the court found as follows:
Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it. Now, if the special circumstances under which the contract was actually made where communicated by the plaintiffs to the defendants, and thus known to both parties, the damages resulting from the breach of such a contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a breach of contract under these special circumstances so known and communicated. But, on the other hand, if these special circumstances were wholly unknown to the party breaking the contract, he, at the most, could only be supposed to have had in his contemplation the amount of injury which would arise generally, and in the great multitude of cases not affected by any special circumstances, from such a breach of contract. For such loss would neither have flowed naturally from the breach of this contract in the great multitude of such cases occurring under ordinary circumstances, nor were the special circumstances, which, perhaps, would have made it a reasonable and natural consequence of such breach of contract, communicated to or known by the defendants.
Thus there are two limbs in respect of loss suffered as a result of breach of contract:
(a)a direct and naturally arising loss which would be within the reasonable contemplation of both parties; and
(b)an indirect or consequential loss which only arises if the party in breach was put on notice prior to or at the time of execution of the contract that this would be a loss suffered if breach occurred.

Evidence relied upon by the parties

The Tribunal had before it a witness statement of Mr Rodney Martin (pages 63-66A of Exhibit 2) in which Mr Martin gave evidence that he met with Mr Buckley at a Dome Café in Leederville in early November 2014. Mr Martin states that during the discussion which took place he specifically recalled informing Mr Buckley that the applicant wished to construct the three units for the purpose of renting them out long-term and that the applicant had no intention of selling the units. Mr Martin also gave oral evidence to the Tribunal in this regard as follows:
MARTIN, MR: … I specifically made topic of that conversation with Todd on the day that I found Mr Wilkins a bit of a hippy and that I had discussed with him the option of doing this development and that from my first appearance from Todd sorry, from Glen being a bit of a hippy, he surprised me with his lack of understanding and his plan to develop as a retirement plan for the future. I made comment of it to Todd, to make him aware that although Glen looks like a bit of a hippy, he's pretty aware and he has got a very clear understanding, and his intention is to use these as part of a retirement plan. And that was a clear conversation we had. There was no intent anyway to sell them. So the fact that Glen had clarified to me that he would be living in the front property and renting the three out, and that was discussed with Todd for the purpose of …
TRIBUNAL: So your evidence is that you said to Mr Buckley, 'Mr Wilkins intends to live in the existing original property'? - - - Yes. And the three other properties were investment for the purpose of rent? - - - Correct. … And that is your specific recollection of the conversation? - - - Yes. And did Mr Wilkins at any stage say to you that there was a possibility that he would sell - - - No. - - - the properties? - - - No, and that was not in his plan.
(ts 47-48, 10 September 2019)
Mr Wilkins also gave oral evidence to the Tribunal as to his precontractual conversations with Mr Buckley on site as follows:
WILKINS, MR: … So basically, Todd comes round, meets us. He goes, 'What are you going to do?' And I'm just like, 'Hey. This is what I'm going to do. I'm going to build these units and I'm going to rent them out and then live off the difference from the interest only.' And you know, then I won't I won't have to work anymore.
…
TRIBUNAL: And did you talk about the existing property? - - - Yes. … I've got a share-house at the front. Yes. And it's basically, you know, I get rent from each one of those rooms and then, you know, I get rent from the units. And the difference in my mortgage will be the income for me. I was quite proud of working it out and all that sort of stuff.
TRIBUNAL: So you told him you were renting out rooms - - - Yes. in the front property? So why did that sort of come up in the conversation? - - - What do you mean?
TRIBUNAL: How did that arise, because - - -? - - I don't know. Like, it just we just I because I was quite proud of what I was doing and I just wanted to tell everyone. … This is my plan. This is what I'm doing. … this is how I'm going to do things different from everyone else, you know, instead of working 30 years and like, you know, relying on your super or whatever. So this will be my super. This would be how I retire. This would be a forever thing that I've always got that I can live off that difference. … So I was quite proud to tell people that that was my plan because in that manner, I've got all this smarter in my head than a lot of other people that don't necessarily think the same way. … So I just told everyone. I told him multiple times of what I was doing. There's no there has never been any doubt.
(ts 66-67, 10 September 2019)
The applicant also relied on a letter sent by the respondent to the applicant's lawyers on 12 September 2016 (para 99, pages 37-38 of Exhibit 2 and document 26, volume 1 of Exhibit 4) which at para 11 responded to the applicant's claim in respect of lost rental income due to delay as follows:
We acknowledge and disagree with point 11 of your letter. Yes your client has made Mener Group aware of his intentions to construct these properties as investment properties. However, we dispute the value of weekly rent of each property. Current listings of properties in the area of a similar workmanship and standard are currently being advertised for $251 p/week.
In addition to this, your client has on two separate telephone conversations to both directors of Mener Group, expressed his concern with the falling rental prices of the Gosnells area due to economic times since he commenced the decision to develop his property. Your client quoted numbers of $250 p/week as the average rent that he would be likely to receive due to the market conditions. This contradicts the numbers indicated in point 11 of your letter.
Mr Buckley gave evidence to the Tribunal denying that Mr Martin and Mr Wilkins told him that the three units were being constructed for the purpose of a rental investment. Mr Buckley gave the following oral evidence to the Tribunal:
MR BUCKLEY: … we had a brief conversation of probably 15 minutes, I would say, at a Dome Café in Leederville. I confirm that. That's true and correct. With regards to him stating that, you know, this is a retirement plan and this is his philosophy on what he wants to achieve in regards to this project. I was never told that. … Subsequently, I caught up with Mr Wilkins. We had a bit of a chat. He told me, 'Hey, I want to build three units'. He never highlighted to me retirement plans and how he thought this is a wonderful thing and outside of the box. Like, I was never told any of this. I was just told, 'I want to build three units. I've got a tight budget of 600,000. Can you do it?' I said, 'Not a problem. Give me the plans, give me what you want to build, roughly, so I can get an idea of what you're thinking'. … So this whole premise of, you know, it's my retirement plan and this whole wonderful idea, supposedly, is - I don't - is - is not correct. … The only conversations that were had were I'm potentially going to look to sell these to - to get some money and I've made that statement previously when Mr Wilkins was in the witness box[.]
(ts 104-105, 10 September 2019)

Determination

The Tribunal found both Mr Martin and Mr Wilkins to be credible witnesses in respect to this evidence. Their evidence was entirely consistent with one another and unwavering. In particular, it was evident to the Tribunal during the course of Mr Wilkins' oral evidence that he was immensely proud of his retirement plan in regards to both renting out the three units and renting out the rooms in the existing property. The Tribunal accepted his evidence entirely that he communicated this information to Mr Buckley on many occasions, as he did so to other people including Mr Martin.
The evidence of Mr Wilkins was also supported by the contemporaneous steps that he took to ascertain the likely rental income which would be derived from the three units prior to entering into the HBWCs with the respondent; page 111 of Exhibit 2.
In all the circumstances, therefore, we do not find Mr Buckley to be a credible witness in respect to this part of his evidence. This is particularly so given the respondent's own letter dated 12 September 2016 referred to at [97] above.
We are therefore persuaded on a balance of probabilities that the respondent was well aware that the units would be used as rental investments and thus was aware that if there was delay in performing the HBWCs that a consequential loss which would be suffered by the applicant would be a loss of rental income.
In respect of the calculation of the period of delay, each of the HBWCs contains an identical provision in respect of time for performance, being clause 9; pages 333, 383 and 433 of Exhibit 1. Clause 9(a) provides as follows:
Subject to this Contract the Builders shall commence the Works within the number of working days specified in Item 9(a) of the Schedule or as soon thereafter as may be reasonably practicable calculated from the latest of the following dates:
(i)on which the Owner shall have complied with the conditions referred to in Clause 2;
(ii)on which the Owner satisfied all requirements under Clause 3(c), if applicable, and Clause 3(d);
(iii)on which the Builder is satisfied that the boundaries of the Site have been adequately delineated;
(iv)on which the Builder is satisfied that both an adequate water supply and an adequate water supply for the carrying out of the Works are available to the Site;
(v)on which the Builder has received approval from all relevant authorities.
The schedule of particulars in each HBWC provides that the time to commence works in clause 9(a) is 14 working days.
The Tribunal finds that the building permit, which was issued on 13 November 2015, constitutes the latest of the dates provided in clause 9(a) of the HBWCs and thus time to commence began 14 working days following that date; pages 271-273 of Exhibit 2.
The obligation of the respondent to commence works was therefore 3 December 2015.
Clause 9(b) of each of the HBWCs required the respondent to complete the works to 'practical completion'; pages 333, 383 and 433 of Exhibit 1. The schedule of particulars in each HBWC specified that practical completion needed to be achieved within 180 working days; pages 375, 325 and 425 of Exhibit 1.
The respondent did not seek any extension of time for completion of the works due to any delay and thus was required to strictly complete the works within the 180 working days specified. Thus each of the three units were required to be completed by 24 August 2016.
As to the date that the respondent reached practical completion, the applicant contended that practical completion had never been achieved. However, the Tribunal raised with the applicant during the hearing that by terminating each of the HBWCs on 27 March 2018 the applicant brought the period of delay to a conclusion. In this respect, terminating the HBWCs was a mitigatory step taken by the applicant and at that point the applicant took on the responsibility to ensure that each unit reached practical completion, if it had not done so by that date. The Tribunal therefore finds that the termination date is the end date on which delay ought to be calculated.
On the Tribunal's calculations, the period of delay between 24 August 2016 and 27 March is 398 working days or 79 weeks.
At this point we ought to address the reason for the discrepancy in the Tribunal's findings, and the calculations as set out in the applicant's expert report of Advali. As previously noted at [90] Advali calculated the period of delay as totalling 85 weeks. In the Tribunal's view there are errors in Advali's calculations. Firstly, the latest date from which to calculate the date of commencement of the works pursuant to clause 9(a) of the HBWCs is clearly the date of the building permit. Thus the commencement date used by Advali of 8 August 2016 is incorrect. In addition it appears that Advali in its calculations of the delay period has used days, rather than working days (as required by each HBWC). This results in inflating the delay period slightly. Once these errors are corrected, the delay period reduces to 79 weeks.
The applicant, having terminated the HBWCs on 27 March 2018 proceeded to take steps to secure tenants for each unit. The properties were advertised on Gumtree at no cost and the applicant intended to selfmanage the units.
Unit B was the first property in respect of which a residential tenancy agreement was executed on 9 May 2018; document 41, volume 2 of Exhibit 4. The agreed weekly rental was $250. Mr Wilkins informed the Tribunal that a reduced weekly rent was agreed because at the time of tenancy the unit did not have a gas hot water system installed and the tenant agreed to install it himself; ts 153, 11 September 2019.
A residential tenancy agreement was then executed in respect of unit A on 31 May 2018 for a weekly rent of $299; document 46, volume 2 of Exhibit 4.
Finally, a residential tenancy agreement was executed in respect of unit C on 17 June 2018 for a weekly rent of $325; document 55, volume 2 of Exhibit 4.
In the Tribunal's view the residential tenancy agreements reasonably reflect the amount of rent that the applicant would have received if the properties had not been delayed in reaching practical completion, other than in respect of unit B, where the Tribunal accepts the applicant's submission that a reduced rent was agreed for the reasons articulated. In the Tribunal's view unit B would otherwise have received the same rental income as unit A, those properties being comparable in all respects.
The rental loss suffered by the applicant is therefore as follows:
(a)Unit A, 79 weeks at $299 per week totalling $23,621.
(b)Unit B, 79 weeks at $299 per week totalling $23,621.
(c)Unit C, 79 weeks at $325 per week totalling $25,675.
In relation to the applicant's claim in the amount of $28,142 reflecting the interest charged to the mortgage in respect of the three units, the Tribunal finds that that loss is not one suffered as a result of the breach of contract by the respondent. The applicant would have in any event paid interest on its mortgage. It is therefore not a recoverable claim.
In relation to the ANZ credit card interest claimed by the applicant, the Tribunal notes that it is a credit card obtained in the personal name of Mr Wilkins and is not a credit card in the name of the applicant. Further, this claim does not appear to relate to the breach of contract claim for the delay in reaching practical completion. It is also a claim that would not in any event be in the contemplation of the respondent as at the time of execution of the HBWCs as an anticipated consequential loss which would be suffered by the applicant if there were delay in reaching practical completion. For each of those reasons the Tribunal finds that this is also not a loss that the applicant is able to claim.
The Tribunal will therefore be making orders in favour of the applicant in respect of complaint item 1 pursuant to s 41(2)(d)(i) of the BSCRA Act as follows: in CC 754/2019 in the amount of $25,675, in CC 755/2019 in the amount of $23,621 and in CC 756/2019 in the amount of $23,621. Complaint item 18 in each proceeding, however, will be dismissed.

Building service complaint damage to boundary fence

2.Pursuant to s 36(1)(c) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) in respect of complaint item 2, the respondent shall pay to the applicant the sum of $22, 420 within 21 days of the date of this order.
3.Pursuant to s 36(1)(b) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) in respect of complaint items 10 and 11, the respondent shall pay to the applicant the sum of $26, 505.00 within 21 days of the date of this order.
4.The following complaint items are hereby dismissed: 49, 12, 15, 17, 18 and 19.
5.The matter of costs applications is listed to a directions hearing at 11.00 am on 5 November 2019.

Proceeding CC 755 of 2019

The Tribunal makes the following orders:
1.Pursuant to s 41(2)(d)(i) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) in respect of complaint items 1, 20, 21, 22 and 23, the respondent shall pay to the applicant the sum of $27, 605.67 within 21 days of the date of this order.
2.The following complaint items are hereby dismissed: 2, 4-11, 12, 15, 17, 18 and 19.
3.The matter of costs applications is listed to a directions hearing at 11.00 am on 5 November 2019.

Proceeding CC 756 of 2019

The Tribunal makes the following orders:
1.Pursuant to s 41(2)(d)(i) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) in respect of complaint items 1, 20, 21, 22 and 23, the respondent shall pay to the applicant the sum of $27,605.67 within 21 days of the date of this order.
2.The following complaint items are hereby dismissed: 2, 4-11, 12, 15, 17, 18 and 19.
3.The matter of costs applications is listed to a directions hearing at 11.00 am on 5 November 2019.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS C WALLACE, SENIOR MEMBER
15 OCTOBER 2019