HORSMAN and MORGAN
[2012] WASAT 152
•25 JULY 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)
CITATION: HORSMAN and MORGAN [2012] WASAT 152
MEMBER: MS A DAVIES (SENIOR SESSIONAL MEMBER)
MR R TRAVERS (SESSIONAL MEMBER)
HEARD: 20 JULY 2012
DELIVERED : 25 JULY 2012
FILE NO/S: CC 671 of 2012
BETWEEN: GREG HORSMAN
Applicant
AND
GARRICK MORGAN
Respondent
Catchwords:
Building Services (Complaint Resolution and Administration) Act 2011 (WA) Whether certain regulated building services are unsatisfactory
Legislation:
Building Code of Australia, Vol 2
Building Services (Complaint and Administration) Regulations 2011 (WA), reg 6
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(1), s 10, s 11(1)(d), s 36(1), s 38, s 38(1), s 38(1)(a)
Home Building Contracts Act 1991 (WA), s 3
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
Mr Garrick Morgan, the respondent, a carpenter and joiner, undertook to build front and rear patios at the applicant's, Mr Greg Horsman, dwelling for a cash price, according to the applicant, of $7,600, but according to the respondent, of $7,200, as well as, subsequently, French doors in the main bedroom and living room of the applicant's dwelling for $5,165, including GST. The applicant became dissatisfied with the respondent's service and filed a complaint at the Building Commission on 4 November 2011.
The Tribunal noted the letter from the City of Geraldton to the respondent dated 21 October 2011.
As a preliminary matter, the Tribunal found that all aspects of the work complained about and captured in the Building Commissioner's report, except 'item A' which was not performed by the respondent or any of his labourers, fell within the definition of regulated building service in the Building Services (Complaint Resolution and Administration) Act 2011 (WA), on the basis that each constitutes home building works which have been carried out by a person for another person under an arrangement for gain or reward.
The Tribunal found that a number of aspects of the work performed with respect to the patios and French doors 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 pay the applicant $13,704.50 by 30 August 2012.
Introduction
This is an application under the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act).
Subject to the Building Services (Complaint Resolution and Administration) Regulations 2011 (WA) (regulations), a person may make a complaint to the Building Commissioner about a regulated building service not being carried out in a proper and proficient manner, or being faulty or unsatisfactory. Having accepted a building service complaint, the Building Commissioner is then required to cause an investigation to be carried out and, after having regard to any report given under s 10 of the BSCRA Act, may refer the complaint to the State Administrative Tribunal (Tribunal) for it to deal with under s 38 of the Act. This matter was validly transferred to this Tribunal pursuant to s 11(1)(d) of the Act.
The Tribunal's powers, upon referral to it of a building service complaint, are set out in s 38(1) of the BSCRA Act, including in the following terms:
(1)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 3 and s 5(1) of the BSCRA 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 BSCRA Act and includes home building work that is carried out by a person for another person under a home building work contract or other contract, or arrangement for gain or reward.
Home building work is defined in s 3 of the BSCRA Act and s 3 of the Home Building Contracts Act 1991 (HBC Act), and includes the whole or part of altering, improving or repairing a dwelling and any other works associated with such work.
A building remedy order is defined in s 36(1) of the BSCRA Act and includes an order that a person who carried out a regulated building service:
(a)remedy the building service as specified in the order; or
(b)pay to the aggrieved person such costs of remedying the building service as the Tribunal considers reasonable and specifies in the order.
The nature of the complaint
The respondent is a carpenter and joiner. The respondent undertook to build front and rear patios at the applicant's dwelling for a cash price, according to the applicant, of $7,600 (page 228 of the hearing booklet (booklet)), but, according to the respondent, of $7,200, as well as, subsequently, French doors in the main bedroom and living room of the applicant's dwelling for $5,165, including GST (page 9 of the booklet).
There is a quotation dated 25 May 2011 from 'Garrick Morgan' to 'Greg Horsman', and two documents entitled 'tax invoice/statement' to 'Horley Enterprises trading as Deloro Deli'. There is no documentation in relation to the arrangement to build the patios.
The applicant filed a complaint at the Building Commission on 4 November 2011 (page 39 of the booklet). A notice of proposed complaint was delivered into the respondent's letterbox on 2 April 2012, and filed at the Building Commission on 5 April 2012 (Notice of Proposed Complaint). At the hearing, the respondent confirmed that he did receive the Notice of Proposed Complaint on or around 2 April 2012.
The applicant seeks costs for rectification of the complaint items set out in Inspector O'Dea's report, dated 22 March 2012 (BC Report), to be completed by a third party.
At the directions hearing on 22 May 2012, Senior Member Spillane ordered that, at the final hearing before taking evidence and deciding workmanship issues, the Tribunal will decide whether the works the respondent carried out for the applicant fall within the definition of 'regulated building service' in the BSCRA Act.
In addition to oral submissions at the hearing, each party provided written details of their respective positions. The respondent also provided a number of references from past clients attesting to their satisfaction with the work the respondent had performed for them.
The applicant relied on the BC Report and also on a quote by Waddingham Interiors Pty Ltd (Waddingham Interiors), dated 20 April 2012 (page 261 of the booklet), which quoted for the cost of rectification of the master bedroom and lounge room French doors and front and rear patios, as well as other items outside of the complaint items set out in the BC Report.
The respondent contested aspects of the BC Report and also the quote provided by Waddingham Interiors, because he felt that an important consideration was that he had not been given the normal amount of opportunity to go back and remedy issues, and had not had an opportunity to inspect what had to be rectified so that he could prepare an alternative quote. In addition to this, the respondent considered that there had not been a proper attempt at mediation by the applicant, which could have resolved a lot of the issues. He also believed that some of the responsibility for these issues did not lie with him because, he said, he did not consent to being named as the builder on the building licence for the patios.
The respondent introduced the person sitting next to him as Mr Alan West. The respondent said Mr West was present as his advisor. Mr West explained he was an architect and registered builder, and that the respondent was a student of his at the building training centre where he lectures in Geraldton.
The hearing and findings
Inspector O'Dea attended the hearing and gave oral evidence during the course of the hearing.
Having had the benefit of hearing both sides' submissions and the evidence, the Tribunal sets out its findings.
Preliminary issues
The Tribunal finds that the Notice of Proposed Complaint is in substantial compliance with reg 6 of the regulations.
The Tribunal also notes that, at the beginning of the hearing on 9 July 2012, the applicant confirmed that all aspects of the work complained about are captured in the BC Report except 'item A', which was not performed by the respondent or any of his labourers (work complained about). The Tribunal found that all aspects of the work complained about fall within the definition of regulated building service in the BSCRA Act, on the basis that they all constitute home building works which have been carried out by a person for another person under an arrangement for gain or reward.
The Tribunal indicated at the hearing that more detailed reasons regarding this preliminary issue would be provided when the final judgment was delivered. These more detailed reasons are as follows. All aspects of the work complained about constitute home building work, because it is work associated with the construction of front and rear patios and two sets of French doors to the house the applicant lives in, which amount to alterations or improvements to a dwelling. In terms of such work having been carried out by a person for another person under an arrangement for gain or reward, in oral evidence, the respondent agreed that he or his labourers had performed all of the work complained about for payment. It is clear from the definition of regulated building service in the BSCRA Act that it is not necessary for a contract, as legally defined, to exist. Also, unlike a home building work contract, as defined in the HBC Act, there is no lower limit of $7,500 and upper limit of $500,000 in respect of, inter alia, arrangements for gain or reward. It is therefore unnecessary to determine whether the arrangements amounted to a contract or contracts or the precise amount or amounts, which was agreed.
French doors and architraves in the main bedroom
Complaint item 1: architraves split and not joined together; sanding has caused damage
The Tribunal accepts Inspector O'Dea's assessment that the splits in the face of timber architraves, the misalignment between adjacent head and stile architraves and sanding resulting in deformation of the moulding constitutes poor workmanship and, therefore, that the installation is faulty and unsatisfactory. The Tribunal accepts the applicant's submission that he intended to stain the wood in the same shade that the wood for the patios was stained. Further, although the applicant has not proved on the balance of probabilities that he expressly told the respondent prior to installation that he was going to stain the wood, the Tribunal does not consider it reasonable for the respondent not to have enquired how the wood was going to be finished. Certainly, if the respondent wished to rely on a lower standard in the installation, it would be necessary for him to have made such enquiries. The Tribunal considers that a painter applying a stain would not be able to address all, or substantially all, of these issues. Accordingly, the Tribunal finds that this regulated building service was unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act.
The Tribunal will address the reasonable cost of remedying this complaint item together with complaint items 2 4.
Complaint item 2: bedroom doors mounted unevenly, allowing wind and dust to enter; bedroom doors rattling due to poor door latch fitting
The Tribunal accepts Inspector O'Dea's assessment that the margins between doors and the frame are excessively lesser and greater than the accepted industry standard of 3 millimetres and are not consistent, as well as that the door latch keep allows excessive movement, such that installation of the doors constitutes poor workmanship, and therefore that the installation is faulty and unsatisfactory. The staining to the lefthand door into the bedroom does not form part of this application - the respondent has had no notice of this issue. The Tribunal does not accept the respondent's submission that the applicant, having not sealed the doors to date, caused or contributed to the issue with the margins. Accordingly, the Tribunal finds that this regulated building service was unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act.
The Tribunal will address the reasonable cost of remedying this complaint item, together with complaint items 1, 3 and 4.
Complaint item 3: weather seal on both doors does not fit due to being too small
The Tribunal accepts Inspector O'Dea's assessment, that the installation of weather seals to the bottom of the doors comply neither with the manufacturer's recommendations nor the Building Code of Australia 2010, vol 2 s 2 Pt 2.2 cl P2.2.2 'Weatherproofing', and therefore the installation is assessed as faulty and unsatisfactory. At the hearing, Inspector O'Dea explained that the seals were ineffective because they had been installed back to front. Accordingly, the Tribunal finds that this regulated building service was unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act.
The Tribunal will address the reasonable cost of remedying this complaint item together with complaint items 1, 2 and 4.
Complaint item 4: architraves not secured properly which is causing them to pull away from wall pulling paint with it; liquid nails used by builder
The Tribunal accepts Inspector O'Dea's assessment that there are excessively wide gaps between the architraves and wall surfaces, and therefore that the installation is faulty and unsatisfactory. In oral evidence, Inspector O'Dea also said that liquid nails had been used as the form of adhesion. The Tribunal notes Inspector O'Dea's opinion that the architraves provided could have either been scribed to the line of the walls against which they have been installed or, alternatively, an additional timber moulding included. Accordingly, the Tribunal finds that this regulated building service was unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act.
The Tribunal also finds that the reasonable cost of remedying complaint items 1 4 is $1,195, including GST, on the basis of the quote provided by the applicant in respect of the master bedroom French doors and frames, excluding the aspect of the quote relating to taking down the brickwork and building in a new lintel. The applicant has not established that a new lintel is necessary, which the Tribunal notes also addresses complaint item E. In oral evidence, Mr Stuart Waddingham, of Waddingham Interiors, explained that $1,195, including GST, would be his revised quote if a new lintel was not required. The Tribunal does not accept the applicant's submissions that this aspect of Waddingham Interiors' quote is excessive, including having regard to the fact that Mr Waddingham charges $65 per hour for his services.
Living room French doors and architraves
Complaint item 5: architraves split and not joined together; sanding has caused damage
The Tribunal accepts Inspector O'Dea's assessment that the splits in the face of timber architraves, the misalignment between adjacent head and stile architraves and sanding resulting in deformation of the moulding constitutes poor workmanship, and therefore that the installation is faulty and unsatisfactory. The Tribunal considers that a painter applying a stain would not be able to address all, or substantially all, of these issues. Accordingly, the Tribunal finds that this regulated building service was unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act.
The Tribunal will address the reasonable cost of remedying this complaint item together with complaint items 6 9.
Complaint item 6: living room doors mounted unevenly, allowing wind and dust to enter; bedroom doors rattling due to poor door latch fitting
In oral evidence, Inspector O'Dea commented that the installations of the French doors in the main bedroom and the living room are likenatured; thus, his similar comments in the BC Report. The Tribunal accepts Inspector O'Dea's assessment that the margins between doors and the frame are excessively lesser and greater than the accepted industry standard of 3 millimetres and are not consistent, as well as that the door latch keep allows excessive movement, such that installation of the doors constitutes poor workmanship, and therefore that the installation is faulty and unsatisfactory. The respondent agreed that some adjustments needed to be made. Accordingly, the Tribunal finds that this regulated building service was unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act.
The Tribunal will address the reasonable cost of remedying this complaint item together with complaint items 5, 7 and 9.
Complaint item 7: weather seal on both living room doors does not fit due to being too small
The Tribunal accepts Inspector O'Dea's assessment that the installation of weather seals to the bottom of the doors comply neither with the manufacturer's recommendations nor the Building Code of Australia 2010, vol 2, s 2, Pt 2.2, cl P2.2.2 'Weatherproofing', and therefore the installation is assessed as faulty and unsatisfactory. The respondent accepted that the seals were installed back to front. Accordingly, the Tribunal finds that this regulated building service was unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act.
The Tribunal will address the reasonable cost of remedying this complaint item together with complaint items 5, 6, 8 and 9.
Complaint item 8: custombuilt frame not put together properly, leaving gaps; screw holes and nail holes vary (too deep, just screwed in, holes drilled and then left empty)
The Tribunal accepts Inspector O'Dea's assessment regarding this complaint; namely, that:
a)there are some undesirable gaps between the north side stile and midrail, including glazing beads, and also at the top of the south side hinge jamb position, and that the appropriate remedy is to fill the gaps to enable finishing to present as if joints are tight and free of excessive gaps; and
b)the unfilled nail holes and screw holes are not unsatisfactory.
The respondent accepted that the gaps were unacceptable and thought a painter would attempt to fill them. The applicant agreed with Inspector O'Dea's 'no action' recommendation in relation to the second aspect of this complaint. Accordingly, the Tribunal finds that this regulated building service was unsatisfactory, to the limited extent specified above, within the meaning of s 38(1)(a) of the BSCRA Act.
The Tribunal will address the reasonable cost of remedying this complaint item together with complaint items 5, 6, 7 and 9.
Complaint item 9: screws left out through timber due to being to big; timber is bowing due to screws being too big
The Tribunal accepts Inspector O'Dea's opinion that the installation, including redundant screw holes, deformation/bulging of door frame surfaces, and exposed filed off screw ends, all point to poor workmanship, and therefore the redundant screw holes, deformation/bulging of door frame surfaces, and exposed filed off screw ends are all assessed as faulty and unsatisfactory. Also, at the hearing, the applicant contended that there is bowing on both sides. Inspector O'Dea said this could be the case he had only taken pictures of the south side. The Tribunal accepts the applicant's evidence that there is bowing on both sides. Accordingly, the Tribunal finds that this regulated building service was unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act.
The Tribunal also finds that the reasonable cost of remedying complaint items 5 9 is $1,214, including GST, on the basis of the quote provided by the applicant in respect of the lounge room French doors and frames, excluding the aspect of the quote relating to taking down the brickwork and building in a new lintel. Although Inspector O'Dea only included pictures of bowing of the door frame on the south side, Mr Waddingham said that he had gone out to the site and inspected the works himself, such that the Tribunal considers there is no basis to conclude that this aspect of the Waddingham Interiors' quote does not address the bowing on both sides.
Also, the Tribunal notes that, in oral evidence, upon being asked to do so by the Tribunal, Inspector O'Dea quickly estimated that rectification of complaint items 1 9 would take a qualified tradesman about three days, with approximately $360 worth of materials. The respondent said his estimation was the same. Mr Waddingham said that his hourly rate is $65 per hour; so on this basis, the cost of rectification would be $1,920. This is in comparison with Waddingham Interiors' revised quote totalling $2,409. In the circumstances, the Tribunal considers that this approximate estimation supports the reasonableness of the Waddingham Interiors' quote, bearing in mind that a third party's quote reasonably factors in contingency, that Mr Waddingham demonstrated that thought and process had gone into his calculation of the quote, and that Inspector O'Dea's calculation was a quick ballparktype estimation.
Front (west) patio
Complaint item 10: roof support beams are not on both sides; there is bending due to load; multi grips are not secured properly
The Tribunal accepts Inspector O'Dea's opinion that, bearing in mind the manufacturer's recommendation with respect to a site that attracts what Inspector O'Dea considered would be a wind classification of N3, the multi grip connectors were not fitted satisfactorily. In oral evidence, Inspector O'Dea clarified that most of the installed multi grips would be able to remain in situ, however, there would be a degree of them which would need slight relocation. Inspector O'Dea also said that, nominally, all of them would need additional nailing and that is going to be 'near impossible' (T:74, 09.07.12) without taking some resheeting off. This is so even if, as Mr West, on behalf of the respondent, suggested, the rafters have also been spiked on both sides. The applicant confirmed this addressed all of the elements of this complaint. Accordingly, the Tribunal finds that this regulated building service was unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act.
The Tribunal will address the reasonable cost of remedying this complaint item together with complaint items 11 13, 14a and items B D.
Complaint item 11: clearance between the underside of the timber beam and top of the decking is not at least 2 metres, as required by the project building licence
The Tribunal accepts Inspector O'Dea's measurement assessment that clearance between the underside of the timber beam and top of the decking, with clearances varying between 1,960 millimetres and 1,965 millimetres, that the height is therefore less than the 2 metres required by the building licence, and is consequently unsatisfactory. Whether the curtains subsequently installed by the applicant will be affected by rectification does not form part of this application the respondent has had no notice of this issue. In oral evidence, Inspector O'Dea offered that a remedy in the circumstances could be to apply to the council for retrospective approval of a variation, but that, otherwise, strict compliance would require 'jacking up' the patio 4 centimetres. The applicant said he personally did not have a problem with the height, but that this had been picked up at an inspection carried out by the City of Geraldton and that it had requested, by letter dated 21 October 2011 (page 256 of the booklet), that it be addressed. Accordingly, the Tribunal finds that this regulated building service was unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act.
The Tribunal will address the reasonable cost of remedying this complaint item together with complaint items 10, 12, 13, 14a) and items B D.
Complaint item 12: where the main ridge beam has a join in it (on the ocean, or west, patio), can we get this replaced with a solid piece instead of a fish plate inserted?
The Tribunal accepts Inspector O'Dea's opinion that the jointed ridge board, provided where a single length board may have been possible, with a joint that does not comply with the requirements of Australian Standard AS1684.22006 'Residential timberframed construction', s 7 Pt 7.2 cl 7.2.12.2, is noncompliant and is therefore assessed as faulty and unsatisfactory. Accordingly, the Tribunal finds that this regulated building service was unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act.
The Tribunal will address the reasonable cost of remedying this complaint item together with complaint items 10, 11, 13 14a) and items B D.
Complaint item 13: damage to a support beam of the preexisting structure
The Tribunal accepts Inspector O'Dea's opinion that the damage to the timber beam, and the obvious lack of attention to making good, is poor workmanship and is therefore assessed as faulty and unsatisfactory. Accordingly, the Tribunal finds that this regulated building service was unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act.
The Tribunal will address the reasonable cost of remedying this complaint item together with complaint items 10 12, 14a) and items B D.
Complaint item 14a): roof sheeting and flashings on front (west) patio
The Tribunal accepts Inspector O'Dea's opinion that the construction of the front (west) patio is faulty and unsatisfactory in the following ways:
a)the roof covers, discharging water into an eaves gutter, do not enter the eaves gutter by not less than 50 millimetres (the variation is between approximately 20 millimetres and 80 millimetres);
b)sheets are not square to the eave/gutter line and inhibit gutter maintenance access;
c)the roof flashings with aprons do not provide a minimum cover of 150 millimetres with a 30 degree by 20 millimetres downturn;
d)sealants are not sandwiched between the laps of the joint and have been excessively overused, especially at flashing joints;
e)roof sheet and flashings fixing screws have, in a number of instances, been overtightened to the extent of causing deformation of the weatherproof seals; and
f)the parapet capping includes fixings through the top of the flashing, and the fixings are not sealed and are located at centres up to approximately 1,500 millimetres instead of at intervals not exceeding 500 millimetres.
Accordingly, the Tribunal finds that this regulated building service was unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act.
The Tribunal will address the reasonable cost of remedying this complaint item together with complaint items 10 13 and items B D.
Complaint item B: no connection of pier tiedown rods to roof frame
The Tribunal accepts Inspector O'Dea's assessment that there is no connection of pier tiedown rods to the roof frame on the west (front patio), as required by the approved project documentation, and is therefore faulty and unsatisfactory. Accordingly, the Tribunal finds that this regulated building service was unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act.
The Tribunal will address the reasonable cost of remedying this complaint item together with complaint items 10 13, 14a) and items C D.
Complaint item C: bush pole support appears inadequate
The Tribunal accepts Inspector O'Dea's assessment that concrete footings for the bush poles on the west (front patio) are approximately 350 millimetres by 350 millimetres instead of 450 millimetres by 450 millimetres by 500 millimetres, as required by the approved project documentation, and are therefore faulty and unsatisfactory. Accordingly, the Tribunal finds that this regulated building service was unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act.
The Tribunal will address the reasonable cost of remedying this complaint item together with complaint items 10 13 and 14a) and items B and D.
Complaint item D: rafter bracket fixed by a single tek screw
The Tribunal accepts Inspector O'Dea's assessment that the common design/standard practice for steel rafter brackets to be attached to rafters is through fixing with three M10 bolts, and that single tek screw attachment of rafter brackets is therefore faulty and unsatisfactory. Accordingly, the Tribunal finds that this regulated building service was unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act.
The Tribunal also finds that the reasonable cost of rectifying complaint items 10 13, 14a) and B D is $9,000, including GST, on the basis of the revised quote provided by Mr Waddingham in oral evidence upon being asked by the Tribunal to estimate the cost of remedying the existing patio so that it was compliant. The Tribunal does not accept Waddingham Interiors' quotes in respect of items 4 and 5 at page 263 of the booklet, as it considers approximately $13,000 is excessive in the context of the applicant having contracted to have two patios built for either $7,200 or $7,600 cash. This is expressed without criticism of Mr Waddingham, who was asked to quote on knocking down the patio and rebuilding it in strict compliance with the building licence instead of remedying the faulty workmanship.
The following calculation, which is based substantially on Inspector O'Dea's quick estimations, supports the reasonableness of Mr Waddingham's revised quote:
a)$265, including GST, for item 10, being one half of a day or four hours at $65 per hour, and $5 materials;
b)nil for complaint item 11, on the basis that the applicant does not have a problem with the height, and retrospective approval of a variation can be applied for;
c)$2,010, including GST, for complaint item 12, being three full days or 24 hours at $65 per hour, and $50 materials;
d)$300, including GST, for complaint item 13, being one half of a day or four hours at $65 per hour, and $40 materials;
e)$1,540, including GST, for complaint item 14a), being two full days or 16 hours at $65 per hour, and $500 materials;
f)$2,240, including GST, for complaint item B, being two full days or 16 hours at $65 per hour, and $300 materials, as well as one half of a day or four hours at $100 per hour for welding and $500 for engineering design and certification;
g)$3,070, including GST, for complaint item C, being 28 hours at $65 per hour, and $250 for the concrete; and
h)$300, including GST, for complaint item D, being one half of a day or four hours at $65 per hour, and $40 materials,
all of which totals $9,725, including GST.
The Tribunal does not accept the respondent's assertion that his name was placed on the building licence without his consent. However, in any event, the respondent, having undertaken to provide the applicant with a patio, is now responsible for the cost of ensuring it is safe and compliant.
The Tribunal does not make any assessment as to whether Waddingham Interiors' should now be selected to complete the remedial work.
Rear (east) patio
Complaint item 14b): roof sheeting and flashings on rear (east) patio
The Tribunal accepts Inspector O'Dea's opinion that the construction of the rear (east) patio is faulty and unsatisfactory in the following ways:
a)the roof sheet installation is less than 25 metres in length and is also fitted at a pitch substantially less than 5 degrees;
b)the roof flashings with aprons do not, in certain locations, provide a minimum cover of 150 millimetres with a 30 degree by 20 millimetre downturn; and
c)roof sheet and flashings fixing screws have, in a number of instances, been overtightened to the extent of causing deformation of the weatherproof seals.
Accordingly, the Tribunal finds that this regulated building service was unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act.
The Tribunal will address the reasonable cost of remedying this complaint item together with complaint items 15 and 16.
Complaint item 15: above the gate there is a bracket screwed right on the edge of the bricks; only three out of the four holes have screws in them
The Tribunal accepts Inspector O'Dea's opinion that a reasonable expectation would be for fixings to be required in all four of the holes provided and, also, that, unless the respondent is in a position to provide an engineer's certification regarding the bracket and its fixings, the bracket fixed by only one fixing in the vertical leg is faulty and unsatisfactory. The respondent did not provide such certification and, accordingly, the Tribunal finds that this regulated building service was unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act.
The Tribunal will address the reasonable cost of remedying this complaint item together with complaint items 14b) and 16.
Complaint item 16: garage support timber only has three small bolts and three nails holding it up
The Tribunal accepts Inspector O'Dea's opinion that supporting the new roof structure on a closer trim at the west end of the rear patio, which is only skew nail fixed, is assessed as faulty and unsatisfactory. Accordingly, the Tribunal finds that this regulated building service was unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act.
The Tribunal also finds that the reasonable cost of remedying complaint items 14b), 15 and 16 is $1,655.50, including GST; being item 3 of the Waddingham Interiors' quote.
Complaint item 17: bricks thrown over the edge of the land below
The Tribunal accepts Inspector O'Dea's observation that the odd bricks and pieces of timber on the embankment to the west of the property are materials consistent with being resultant of the demolition of preexisting brickwork and, also, offcuts of timbers used in the new construction. The Tribunal does not accept the respondent's submission that the applicant asked him and his labourers to stack the waste material at the end of the embankment so he could toss them over the edge at night when no one could see, and that his labourers took it upon themselves to throw them over to save the applicant the trouble. Accordingly, the Tribunal finds that this regulated building service, being associated work in connection with the alteration or improvement of a dwelling, was not carried out in a proper or proficient manner within the meaning of s 38(1)(a) of the BSCRA Act.
The Tribunal also finds that the reasonable cost of remedying this complaint item is $640, including GST, being one day, or eight hours, at $65 per hour, and $120 for the hire of a vehicle to transport the waste material away.
Complaint item 18: please verify whether the City of Geraldton rectification order has been complied with
The Tribunal notes, in relation to the items in the letter from the City of Geraldton to the respondent dated 21 October 2011, that the first issue is addressed under complaint item 11; the second item is addressed under complaint item 17; the third issue is addressed under complaint item 12; the fourth issue is addressed under complaint item 14; and the fifth issue is addressed under complaint item 10 of Inspector O'Dea's report dated 22 March 2012.
Complaint item F: loose pin hinges in outward opening doors installation
The Tribunal accepts Inspector O'Dea's opinion that it is standard practice to use fixed pin hinges in external door installations, and that it is also not unreasonable for an owner to expect an outward opening door installation to be provided, so as to prevent the hinge pins from being easily removed and allowing the doors to also be removed from outside the dwelling, possibly resulting in unauthorised access. Accordingly, the Tribunal finds that this regulated building service was unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act.
The Tribunal also finds that the reasonable cost of remedying this complaint item is captured in the quote relating to the French doors.
Order
The Tribunal orders the following:
The respondent must by 30 August 2012 pay the applicant $13,704.50.
I certify that this and the preceding [78] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS A DAVIES, SENIOR SESSIONAL MEMBER
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