HORSFIELD and CHEVAL CONSTRUCTIONS PTY LTD - [2012] WASAT 82

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)

CITATION: HORSFIELD and CHEVAL CONSTRUCTIONS PTY LTD [2012] WASAT 82

MEMBER: MR R AFFLECK (SENIOR SESSIONAL MEMBER)
MS A DAVIES (SENIOR SESSIONAL MEMBER)

HEARD: 28 MARCH 2012

DELIVERED : 5 APRIL 2012

PUBLISHED : 1 MAY 2012

FILE NO/S: CC 6 of 2012

BETWEEN: VALERIE HORSFIELD
Applicant
AND
CHEVAL CONSTRUCTIONS PTY LTD
Respondent

Catchwords:

Building Services (Complaint Resolution and Administration) Act 2011 (WA) Whether certain regulated building services are unsatisfactory

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 4, s 5, s 6(1), s 9, s 11(1), s 11(1)(d), s 36(1), s 38(1), s 38(1)(a), s 133
State Administrative Tribunal Act 2004 (WA), s 49, s 49(3), s 87(1)
Building Code of Australia

Result:

Application granted

Category: B

Representation:

Counsel:

Applicant: Self-represented
Respondent: Self-represented

Solicitors:

Applicant: Self-represented
Respondent: Self-represented

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The respondent agreed to complete certain additions and improvements to the applicant's home. The applicant was not satisfied with aspects of the work and filed a complaint on 1 July 2011.
The Tribunal found that a number of items of work performed by the respondent were unsatisfactory within the meaning of s 38(1)(a) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA).
The Tribunal ordered that the respondent rectify the unsatisfactory work in the specific ways set out in the order within 45 days from the date of the order, and also that the respondent make good any damage occasioned by rectification.
The Tribunal also found that the respondent's conduct did not warrant the making of an order for costs, and the Tribunal accordingly declined to do so.

Introduction

This is an application under the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BS(CRA) Act).
Since 29 August 2011, when the BS(CRA) Act came into operation, workmanship dispute complaints (originally made to the Building Disputes Tribunal, but in respect of which no substantive hearing had yet commenced) were transferred to the Building Commission (Commission) pursuant to s 133 of the BS(CRA) Act. The Building Commissioner (Commissioner) is required to cause an investigation of any such complaint by an authorised officer under s 9 of the BS(CRA) Act, and, after having regard to a report of the authorised officer, may determine that one of the alternative courses of action available under s 11(1) of the BS(CRA) Act is to apply. This matter was validly transferred to this Tribunal pursuant to s 11(1)(d) of the BS(CRA) Act.
The Tribunal's powers, upon referral to it of a building service complaint, are set out in s 38(1) of the BS(CRA) Act, including in the following terms:
If the Building Commissioner refers a building service complaint to the State Administrative Tribunal, the Tribunal may
(a)if the Tribunal is satisfied that the regulated building service that is the subject of the building service complaint has not been carried out in a proper and proficient manner or is faulty or unsatisfactory, deal with the building service complaint by making a building remedy order; or
(b)otherwise, decline to make a building remedy order.
A 'building service complaint' is defined in s 5 of the BS(CRA) Act, and is a complaint about a regulated building service not being carried out in a proper and proficient manner, or being faulty or unsatisfactory.
A 'regulated building service' is defined in s 3 of the BS(CRA) Act, and includes home building work that is carried out by a person for another person under a contract or arrangement for gain or reward.
A 'building remedy order' is defined in s 36(1) of the BS(CRA) Act, and includes an order that a person who carried out a regulated building service remedy the building service as specified in the order.

The nature of the complaint

Cheval Constructions Pty Ltd (respondent) agreed to complete certain additions and improvements to the home of Ms Valerie Horsfield (applicant) in Donnybrook, pursuant to a number of contracts entered into on 30 November 2006.
The applicant was not satisfied with aspects of the work and filed a complaint on 1 July 2011, which is at pages 26 32 of the hearing booklet (booklet).
A Building Commission inspection report by Inspector Sturmer (BC Report) was provided to the parties by letter dated 21 November 2011. The BC Report is at pages 47 61 of the booklet. The applicant effectively amended the remedy she was seeking in emails to Ms Brenda McDermott dated 12 December 2011 and 14 December 2011 by requesting that the respondent fix the outstanding issues. These emails are at pages 106 and 108 of the booklet respectively.
The Commission referred this matter to the Tribunal on 28 December 2011, noting that the applicant and respondent disagreed with certain aspects of the BC Report. This referral is at pages 93 94 of the booklet. At the hearing the applicant clarified that she also disputed item 1 of the BC Report.
At a directions hearing on 7 February 2012 it was ordered that, on or before 24 February 2012, the parties are to file with the Tribunal and provide to the other party all documents on which they wish to rely at the final hearing not already on the Tribunal's file, including any expert reports, photographs and quotations, or other documents relevant to the costings of the complaint items to be determined by the Tribunal. It was also ordered that the matter be listed for final hearing on 28 March 2012 for the duration of one day.
Each party provided written details of their respective positions. This included the applicant's response to the BC Report, at pages 97 105 of the booklet, and the respondent's response to the BC Report, at pages 95 96 of the booklet.

The hearing and findings

The applicant agreed with the 'no action' recommendation in the BC Report in respect of items 6, 8, 11, 20, 21, 22, 23 and 24 in her response at pages 97 105 of the booklet. The Tribunal notes that, in respect to item 11, this agreement was qualified. However, the applicant did not provide any further expert report or witness at the hearing. Further, none of these items were contested at the hearing. Accordingly, the Tribunal proceeded on the basis that the items in dispute were items 1 - 5, 7, 9, 10 and 13 - 19 of the BC Report.
Inspector Sturmer attended the hearing and gave oral evidence about the items in dispute. He gave oral evidence at intervals as the applicant presented her case. During this time the respondent was also given the opportunity to crossexamine Inspector Sturmer on the report and his oral evidence. When the applicant's case closed, the respondent said he did not need Inspector Sturmer to remain. Inspector Sturmer was then excused when the matter was adjourned for lunch at 1.10 pm.
Having had the benefit of hearing both sides' submissions and the evidence, the Tribunal sets out its findings in relation to the workmanship issues (using the numbering in the BC Report).

Item 1: white ant treatment for the roof frame of the bedroom extension

Inspector Sturmer indicated in the BC Report that he had not been able to access the roof frame to determine whether the roof frame was CCA treated timber. In oral evidence Inspector Sturmer explained that he made a 'no action' recommendation because CCA treated timber is not required by the Building Code of Australia.
The applicant disputed the 'no action' recommendation. She referred to a quote dated 9 November 2006, which was admitted as Exhibit 3, as evidence that she had paid for CCA treated pine to be used. The Tribunal notes that 'CCA treated pine roof framework' is part of the contract between the parties dated 30 November 2011, which is at page 9 of the booklet.
The applicant also referred to certain photographs showing the roof during construction. These photographs were from an envelope labelled 'complaint 1', which was one of 13 envelopes provided by the applicant at the hearing. The 13 envelopes were admitted as Exhibit 4. Inspector Sturmer examined these photographs. He said that CCA treated timber is stamped every 2.4 metres, but he could not determine from the photographs whether or not they had been stamped.
The respondent was given an opportunity to consider these photographs and also to crossexamine both Inspector Sturmer and the applicant, but declined to do so.
The respondent did not contest this aspect of the dispute during the hearing.
The Tribunal finds that, if the roof framework has not been built with CCA treated pine, this regulated building service is unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act.
The Tribunal also finds that the appropriate remedy is for the respondent to remove the entire roof framework of the bedroom extension and reconstruct it with CCA treated pine unless Mr van Duyn is able to satisfy the applicant that this has already been done.

Item 2: roof sheeting on the east side of the bedroom extension joined in different directions

Inspector Sturmer's assessment in the BC Report was that the roof sheets on the east side of the house, and also at the southeast corner of the house, overlapped in a way that was not perfect from a workmanship perspective, but had not resulted in leaking and was, therefore, fitforpurpose.
The applicant disputed the 'no action' recommendation. In her written response, at page 97 of the booklet, she said that she still believed that this may be the reason for the water seepage into the ensuite when the rain comes from certain directions. The applicant maintained this position at the hearing. She utilised the plan at page 19 of the booklet to explain that the ensuite is in the original part of the house, immediately next to the area where the new bedroom extension joins the house, towards the east side. She also clarified that the leak is through the vent in the ensuite.
In oral evidence, Inspector Sturmer said that the overlapping roofing in the southeast corner of the bedroom extension was unlikely to be contributing to the leak in the ensuite bathroom because it is too far away. However, Inspector Sturmer said that, to comply strictly with the manufacturer's recommendations, the roof sheets needed to be relayed.
The respondent was given an opportunity to crossexamine both Inspector Sturmer and the applicant, but declined to do so.
The respondent did not contest this aspect of the dispute during the hearing.
The Tribunal finds that this regulated building service was unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act.
The Tribunal also finds that the appropriate remedy is for the respondent to remove the roof sheeting of the bedroom extension, which is not sitting in accordance with the manufacturer's recommendation, and to relay it in accordance with the manufacturer's recommendation.

Item 3: holes in tin roofing sheets allowing water seepage into the roof cavity causing ceiling dampness

Inspector Sturmer's assessment in the BC Report was that there are missing roof fixings, and that this is faulty and unsatisfactory.
The applicant said she was satisfied with the recommendation in the BC Report.
The respondent did not contest this aspect of the dispute.
The Tribunal finds that this regulated building service was unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act.
The Tribunal also finds that the appropriate remedy is for the respondent to replace the missing roof sheet fixings.

Item 4: roof nails rusting

Inspector Sturmer's assessment in the BC Report was that two burred and discoloured screws on the west side of the roof, and several other fixings which are overscrewed and distorting the weather seal, are faulty and unsatisfactory.
The applicant said she was satisfied with the recommendation in the BC Report.
The respondent did not contest this aspect of the dispute.
The Tribunal finds that this regulated building service was unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act.
The Tribunal also finds that the appropriate remedy is for the respondent to replace the two burred and discoloured screws on the west side of the roof, as well as the several other fixings which are overscrewed.

Item 5: new guttering around the house leaks

The applicant gave oral evidence that specific portions of the guttering, around both the new and original parts of the house, overflowed with water during heavy periods of rain. Utilising the plan at page 19 of the booklet, the applicant identified, in particular, the perimeter along the northwest side of the bedroom extension, the perimeter around the entrance at the west of the property, including the area facing southeast, and the perimeter along the southwest side of the original house. She provided additional evidence by way of 13 photographs from the envelope labelled 'complaint 5' (Exhibit 4).
The applicant also referred to the quote at page 7 of the booklet, which included guttering and downpipes. The respondent clarified that this quote was replaced by the contract at page 13 of the booklet. The Tribunal notes that the contract dated 30 November 2011 indicates that the guttering is to be replaced 'as per existing' and that downpipes are 'as required' and to be '95 x 45'.
In the BC Report Inspector Sturmer stated that he observed a discolouration of the eave sheets consistent with that caused by moisture ingress in the vicinity of each downpipe. Inspector Sturmer included a photograph illustrating the stained eaves. Inspector Sturmer noted that the gutters contained some leaf matter. However, he stated that it did not appear extensive and would not cause the sort of spillage that would offer an adequate explanation for the extent of the staining around the gutters. Inspector Sturmer concluded that the significance of the staining, and its location around the downpipes, is strongly suggestive of the failure of some part of the downpipe to drain the gutter appropriately, and, therefore, assessed that the failure of the downpipe is a consequence of faulty workmanship by the respondent.
In oral evidence Inspector Sturmer said that, where gutters are leaking, a builder should establish the cause of moisture ingress and staining. He said that fixing this kind of problem will involve more than just replacing the existing gutters, and that there could be a lot of work involved in addressing the issue. Inspector Sturmer said he had not measured the extent of any fall, but he suspected that the hips have subsided, and, if so, they will fill and then spill. Inspector Sturmer further said that Australian Standard 3500 identifies the methodology which must be used by a builder to establish the gutter size and number of downpipes necessary. He said it did not appear that the gutters were undersized, and the downpipes looked suitable. Inspector Sturmer concluded that, even if the replacement of gutters had been carried out in a workmanlike manner, there could still be leaking, but a quote should include the remedying of sinking hips and whatever else is causing the problem.
The applicant explained that she had shown the respondent the water stains around the guttering. She said that she thought that new guttering would fix the issues, and also, effectively, that she had relied on the respondent to do what was necessary to be done to fix the problem.
The respondent strongly contested this item.
During the applicant's case, the respondent crossexamined Inspector Sturmer regarding whether it would be necessary to replace the guttering to fix the problem. Inspector Sturmer said that if the respondent could address the issue and reuse the existing guttering, then replacement would not be essential. The respondent also crossexamined Inspector Sturmer regarding the fact that there were plenty of trees around the property. Inspector Sturmer acknowledged that leaves could inhibit the water flow in gutters, cause spillage and contribute to the staining of eaves. However, Inspector Sturmer said that on the day he inspected the property, there had not been enough leaves in the gutter to explain the sort of spillage that had been occurring.
The respondent also crossexamined the applicant regarding the staining on the eaves. The applicant acknowledged that the staining had existed prior to the replacement of the gutters. However, she said that the staining had become worse and there had never been mould before.
When the respondent presented his case he said, in relation to this item, that he had believed the original guttering needed to be replaced because of rusting and that the eaves were already damaged and stained. He said that the leaves were the problem because it does not take long for leaves to fill up the gutters. He said that when he replaced the gutters he had followed the line of the existing eaves. He said, effectively, that the gutters fall away from the downpipes, not towards them, but that he had believed the benefit of addressing this would not justify the time and expense.
The Tribunal also notes the respondent's written submissions regarding this item at page 95 of the booklet.
The applicant crossexamined the respondent as to why he had not given her the opportunity to make a decision about the expense. He said that he had not believed there was an issue, because he thought the stained eaves had been caused by the water coming through the rusted areas of the gutters. He said he had never experienced this kind of problem before.
The Tribunal accepts Inspector Sturmer's oral evidence that, where gutters are leaking, a builder should establish the cause of moisture ingress and staining, and that a quote should include the remedying of sagging hips and whatever else is causing the problem. The Tribunal finds that the respondent did not adequately diagnose the problem, and, accordingly, the regulated building service was unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act.
The Tribunal also finds that the appropriate remedy is for the respondent to remedy the work undertaken which has caused the subsequent moisture ingress and staining of the eaves. As it is common ground that the eaves were damaged and stained at the time the gutters were replaced by the respondent, and the applicant has not established the extent of further damage caused by the respondent to the eaves, the Tribunal finds that the respondent is not required to replace the eaves.

Item 7: eaves at extension are too low to enable glass and fly wire doors to open properly

Inspector Sturmer indicated in the BC Report that he had observed the southeast corner of the extension to the house. Inspector Sturmer observed that the spirit level of the old eave indicated that it was out of level, and it appeared that the respondent has followed this misalignment with the new eaves. Inspector Sturmer stated that it is not uncommon to follow the level of an existing eave when extending an existing building, and the inability to open the flywire doors installed by the owner is unlikely to have been foreseen by the respondent. However, in Inspector Sturmer's assessment, a builder is taking a risk when it is decided that a deformity, such as an out of level eave, is to be carried through into a new structure, and the respondent is now liable to resolve the problem that has eventuated.
In oral evidence, Inspector Sturmer said it would have been expensive to lift the original eaves, and that the applicant would have had to accept the cost of a variation.
The Tribunal notes the written submissions regarding this item of the applicant, at page 101, and of the respondent, at page 95 of the booklet.

The Tribunal does not accept the respondent's submission that the flywire doors should have been fitted to suit the situation, as there was no evidence as to how they could have been. The Tribunal finds that this regulated building service was unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act.
The Tribunal also finds that the appropriate remedy is for the respondent to provide the applicant with a possible quote for a variation to lift the portion of the eave of the original house sufficiently to enable an adjustment to the eave of the bedroom extension to maintain a continuous line. If the applicant does not wish to proceed with the variation to the original house due to the additional cost to the applicant, the respondent is to explain to the applicant the ramifications of adjusting and repitching the roof framing of the bedroom extension, including the way it will look, particularly at the joint of the old work and the new work. If the applicant wishes to proceed, the respondent is to adjust and repitch the roof framing so that the eaves and facie do not interfere with the opening of the flywire doors.
The Tribunal notes that Inspector Sturmer stated that the glazed doors, which open in, appear to be functioning effectively and are assessed as fitforpurpose. The Tribunal also notes the applicant's submissions at page 101 of the booklet, including that the glazed doors cannot be closed. The Tribunal considers that this issue did not form part of the complaint, and, accordingly, makes no finding in relation to the glazed doors. If the applicant is considering a further complaint, the Tribunal draws the applicant's attention to s 6(1) of the BS(CRA) Act which provides that:
A building service complaint is made out of time if the complaint is made more than 6 years after the completion of the regulated building service to which the complaint relates.

Item 9: cannot clean gutters properly because the tin is too close to the gutter preventing a proper clean

Inspector Sturmer indicated in the BC Report that he had observed the gutters around the house, and that, with the exception of the northeast corner, reasonable access for cleaning the gutters is available. Inspector Sturmer further said that the gutter in the northeast corner is partially compromised by a flashing for an extension to the eave, which was not part of the builder's scope of works. Accordingly, Inspector Sturmer made a 'no action' recommendation.
The applicant initially disputed the 'no action' recommendation. However, the applicant accepted that it was not the respondent's responsibility to trim the flashing as that work had been performed by someone else.
The Tribunal finds that this regulated building service was not unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act.

Item 10: cannot clean downpipes

Inspector Sturmer indicated in the BC Report that the applicant had withdrawn this aspect of the complaint at the time of the inspection, and, accordingly, made a 'no action' recommendation.
The applicant initially disputed the 'no action' recommendation. In her written submissions at page 10 of the booklet she explained that she had withdrawn this item because she believed it would be fixed when the gutters were fixed.
However, at the hearing, the applicant accepted that the difficulty with cleaning the downpipes did not involve any defective workmanship by the respondent.
The Tribunal finds that this regulated building service was not unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act.

Item 12: paving around the new extension not put back

Inspector Sturmer's assessment in the BC Report was that the paving had not been reseated properly, and that this was an incomplete task. Inspector Sturmer recommended that the respondent complete the paving as per the scope of works.
The applicant agreed with the recommendation in the BC Report.
The respondent said he would be happy to complete the paving now.
The Tribunal accepts the respondent's submission at page 95 of the booklet, and reiterated, during the course of his case, that he left the pavers because the owner said he would finish them off.
The Tribunal finds that this regulated building service was technically unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act.
The Tribunal also finds that the appropriate remedy is for the respondent to complete the paving as per the scope of the works.

Item 13: cement floor of carport cracked within a month of cement being laid

Inspector Sturmer indicated in the BC Report that he did not establish the grade of the concrete, the thickness, or whether mesh reinforcement had been used, but stated that there are clear recommendations for paving set out in AS 3727, and said that the carport slab should be regarded as part of the driveway. Inspector Sturmer said that the minimum requirement for control joint spacing for a driveway is 2,000 metres, and, therefore, assessed the cracking of the carport slab as faulty and unsatisfactory.
The applicant agreed with the recommendation in the BC Report.
The respondent did not contest this aspect of the dispute.
The Tribunal finds that this regulated building service was unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act.
The Tribunal also finds that the appropriate remedy is for the respondent to remedy the cause and effect of the cracking of the carport concrete pavement.

Item 14.1: crack in the ceiling

Inspector Sturmer indicated in the BC Report that he had observed a fine crack in the ceiling of bedroom 1 from a cornice and across to the light/fan. Inspector Sturmer stated that he had been advised by the owner that an independent inspector had made the comment that there was a lot of tile rubble still left in the ceiling void when the roof tiles were removed to facilitate the reroofing, and that he had seen through the manhole that there were remnants of the old tiles and timber scattered across the ceiling. Inspector Sturmer further stated that reroofing a house is a labourintensive process, that the action of stripping the roof of tiles is fraught with risk, and that it is not unusual for ceiling damage to be sustained. Inspector Sturmer stated that the crack in the ceiling is not inconsistent with that which could have been caused by tradespeople walking on the ceiling frame in the act of stripping the roof tiles, but that the evidence observed is not conclusive. Consequently, Inspector Sturmer referred this aspect of the dispute for assessment of the existing, and any additional, evidence submitted by the parties.
There was no additional evidence submitted by the parties.
The Tribunal finds that the applicant has not proven on the balance of probabilities that it was the respondent who caused the ceiling crack. On the evidence available, the Tribunal considers it equally possible that someone, or something, else could have caused the crack. Accordingly, the Tribunal finds that this regulated building service was not unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act.

Items 14.2 and 15: roof leaks causing dampness on the ceiling of bathroom 1 and the laundry

Inspector Sturmer indicated in the BC Report, in relation to both of these items, that he could not determine whether the stain on each ceiling, which possibly were water stains, had occurred since the reroofing or not. Inspector Sturmer stated that there is only one way that this issue can be clarified, and that is for the ceiling to be repaired and repainted using a stain blocker. If the stain should then reoccur, it will be a consequence of the new roof leaking. Inspector Sturmer concluded that the respondent would need to remedy the cause and effect, and make good affected surfaces.
There was no additional evidence submitted by the parties, except that in oral evidence, in the context of item 5; the applicant said that she had also been concerned about water ingress from the tiled roof, and had thought a tin roof would fix the problem.
The applicant confirmed that she does not seek replacement of the ceilings, only the fixing of any leaks.
The respondent initially contested these items. However, at the hearing, the respondent agreed to check the new roof to ensure it is now watertight.
The Tribunal finds that these regulated building services were technically unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act.
The Tribunal also finds that the appropriate remedy is for the respondent to check the new roof and ensure it is now watertight.

Item 16: roof leaks causing dampness on the ceiling of dining room

Inspector Sturmer indicated in the BC Report that he had observed a large 'L' shaped stain by the light fitting. He stated that there is a screw missing from the hip flashing above the general vicinity of this stain, and assessed that the missing screw is the cause of the moisture ingress. Inspector Sturmer concluded that this was faulty and unsatisfactory.
The applicant agreed with the recommendation in the BC Report.
The respondent contested this item. The Tribunal notes the respondent's submissions at page 95 of the booklet. However, the Tribunal is satisfied that the missing screw has caused staining in the area by the light fitting, and considers it improbable that any possible leak in the old tiled roof caused prior damage in exactly the same area as the leak in the new tin roof. Further, there was no evidence that, in waiting four years to get the leak fixed, the applicant had acted unreasonably.
The Tribunal finds that this regulated building service was unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act.
The Tribunal also finds that the appropriate remedy is for the respondent to remedy the cause and effect of the moisture ingress.

Item 17: roof leaks into the ensuite through exhaust fan

Inspector Sturmer indicated in the BC Report that he had observed the fitting of the flume to the roof cover, and it appeared effectively sealed. He stated that the flume is a proprietary product commonly used for this purpose, and its fitting appeared fitforpurpose. He considered it possible that some moisture could enter this flume in certain blustery weather conditions, and could drip from the fan. Inspector Sturmer assessed that the moisture ingress was not a consequence of faulty workmanship by the builder and made a 'no action' recommendation.
The applicant disputed the 'no action' recommendation. In her written response, at page 103 of the booklet, she said that the flume was a different shape to the original one, and that there had been no problems with the old flume.
There was additional evidence submitted by the parties. The photographs in the envelope labelled 'complaint 17' (Exhibit 4) show the amount of water that drips through the flume.
The respondent did not contest this aspect of the dispute during the hearing. Further, at the hearing, the respondent agreed to check the new roof to ensure it is now watertight.
The Tribunal finds that this regulated building service was technically unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act.
The Tribunal also finds that the appropriate remedy is for the respondent to check the new roof to ensure it is now watertight. On the basis of Inspector Sturmer's evidence, the Tribunal finds that the respondent is not required to replace the flume.

Item 18: cornice in the new extension

In the preliminary notice, at page 1 of the booklet, the applicant describes this item of the complaint in the following way:
[c]ornice in the new extension [n]ow separated from the ceiling after the recent jacking up of the roof to investigate the roofing and eaves issue. The roof of the existing house was also jacked up in pursuit of the problem. I am now concerned that there will be cornice issues along that side of the house after the jacking up of the original side of the house.
Inspector Sturmer indicated in the BC Report that he could not see any cracks in the wall or cornice, and that it appeared to have been effectively repaired. He stated that the owner can monitor the situation, and, should cracking in this area become evident, is at liberty to refer the matter back to the Commissioner's delegate for further determination. Accordingly, Inspector Sturmer made a 'no action' recommendation.
The applicant disputed the 'no action' recommendation. In her written response, at page 104 of the booklet, she stated, inter alia, that the 'jacking' of the roof clearly separated the roof from the cornice, and that, because cracks were not visible at the time of the inspection, this does not fix the issue.
The Tribunal finds that this regulated building service was not unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act.
In relation to Inspector Sturmer's advice, the Tribunal notes s 6(1) of the BS(CRA) Act which provides that:
A building service complaint is made out of time if the complaint is made more than 6 years after the completion of the regulated building service to which the complaint relates.

Items 19: rubbish left in the roof cavity

Inspector Sturmer indicated in the BC Report that he had observed that there were substantial remnants of the old tiles scattered across the ceiling. He stated that this is a poor attempt at a tradesmanlike finish and is faulty and unsatisfactory.
The applicant agreed with the recommendation in the BC Report.
The respondent did not contest this aspect of the dispute.
The Tribunal finds that this regulated building service was unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act.
The Tribunal also finds that the appropriate remedy is for the respondent to remedy the presence of the tile and timber remnants scattered throughout the ceiling space.

Other issues

In the applicant's complaint filed on 1 July 2011, the applicant also seeks costs and that the work be rechecked after completion.
By reason of s 87(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), parties ordinarily bear their own costs in a proceeding in the Tribunal. Section 49 of the SAT Act also sets out specific power to award costs in relation to proceedings arising from a building service complaint, including, pursuant to s 49 (3) where costs and expenses were unnecessarily incurred due to the conduct of the party.
The Tribunal finds that the respondent's conduct does not warrant the making of an order for costs, and the Tribunal accordingly declines to do so.
The Tribunal also finds that there is no power by which the Tribunal may order that rectification work be rechecked after completion. However, the Tribunal notes that, if the applicant is not satisfied with the rectification work, the applicant may contact the Commission to consider any possible avenues of further redress.

Order

The Tribunal orders the following:
1.The respondent must rectify the faulty or unsatisfactory work at No 130 Upper Capel Road, Donnybrook within 45 days from the date of this order as listed below.
(i)Item 1
Complaint: the roof frame of the bedroom extension is not CCA treated.
Action: the respondent must remove the entire roof framework of the bedroom extension and reconstruct it with CCA treated pine unless Mr van Duyn is able to satisfy the applicant that this has already been done.
(ii)Item 2
Complaint: the roof sheeting on the east side of the bedroom extension is joined in different directions.
Action: the respondent must remove the roof sheeting of the bedroom extension which is not sitting in accordance with the manufacturer's recommendation and relay it in accordance with the manufacturer's recommendation.
(iii)Item 3
Complaint: there are holes in roofing sheets allowing water seepage into the roof cavity.
Action: the respondent must replace the missing roof sheet fixings.
(iv)Item 4
Complaint: roof nails rusting.
Action: the respondent must replace the two burred and discoloured screws on the west side of the roof, as well as the several other fixings which are overscrewed.
(v)Item 5
Complaint: new guttering around the house leaks.
Action: the respondent must remedy the work undertaken which has caused the subsequent moisture ingress and staining of the eaves.
(vi)Item 7
Complaint: the eaves of the extension are too low to enable glass and flywire doors to open properly.
Action: the respondent must provide the applicant with a possible quote for a variation to lift the portion of the eave of the original house sufficiently to enable an adjustment to the eave of the bedroom extension to maintain a continuous line. If the applicant does not wish to proceed with the variation to the original house, the respondent is to explain to the applicant the ramifications of adjusting and repitching the roof framing of the bedroom extension, including the way it will look, particularly at the joint of the old work and the new work. If the applicant wishes to proceed, the respondent must adjust and repitch the roof framing so that the eaves and facie do not interfere with the opening of the flywire doors.
(vii)Item 12
Complaint: paving around the new extension not put back.
Action: the respondent must complete the paving as per the scope of the works.
(viii)Item 13
Complaint: cement floor of carport cracked within a month of cement being laid.
Action: the respondent must remedy the cause and effect of the cracking of the carport concrete pavement.
(ix)Items 14.2 and 15
Complaint: roof leaks causing dampness on the ceiling of bathroom 1 and the laundry.
Action: the respondent must check the new roof and ensure it is now watertight.
(x)Item 16
Complaint: roof leaks causing dampness on the ceiling of dining room.
Action: the respondent must remedy the cause and effect of the moisture ingress.
(xi)Item 17
Complaint: roof leaks into the ensuite through exhaust fan.
Action: the respondent must check the new roof and ensure it is now watertight.
(xii)Item 19
Complaint: rubbish left in the roof cavity.
Action: the respondent must remedy the presence of the tile and timber remnants scattered throughout the ceiling space.
2.The respondent must make good any damage occasioned by compliance with order 1 above within 45 days from the date of this order.

I certify that this and the preceding [115] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS A DAVIES, SENIOR SESSIONAL MEMBER