| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA) CITATION : JACOB and DALE GALLACHER & ANOR T/AS D'N'A CARPENTRY [2013] WASAT 198 MEMBER : MS L WARD (MEMBER) MR C MARSH (SESSIONAL MEMBER)
HEARD : 26 JULY, 20 AUGUST AND 1 NOVEMBER 2013 DELIVERED : 10 DECEMBER 2013 FILE NO/S : CC 368 of 2013 BETWEEN : YASMINE JACOB Applicant
AND
DALE GALLACHER & ANOR T/AS D'N'A CARPENTRY
Respondents
Catchwords: Approved owner builder Scope of contract Faulty or unsatisfactory work Incomplete work Site access Turns on own facts Legislation: Building Code of Australia
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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), s 49, s 49(5)
Building Services (Complaint Resolution and Administration) Regulations 2011 (WA)
Home Building Contracts Act 1991 (WA), s 3
State Administrative Tribunal Act 2004 (WA), s 87(1), s 98 Result: Application is dismissed
Summary of Tribunal's decision: Ms Jasmine Jacob complained to the Building Commission about the quality of the work done during the partial construction of her home by one of her sub contractors, Mr Dale Gallacher.
Ms Jacob is an approved owner builder. A building permit was issued by the Shire of Northam in Ms Jacob's name as the builder.
Mr Gallacher is a carpenter with 30 years' experience. Mr Gallacher has operated his own carpentry business since 1980.
On 21 October 2012, Ms Jacob agreed with Mr Gallacher that he would supply and erect a timber framed house for her. The contract was for the amount of $44,000.
Mr Gallacher commenced the building work on 21 October 2012. On 6 December 2012, Ms Jacob ordered Mr Gallacher off site. Mr Gallacher said that this was in effect because Ms Jacob tried to vary the terms and the amount of the contract. Mr Gallacher did not agree to the changes to the contract proposed by Ms Jacob.
On 21 December 2012, Ms Jacob lodged a complaint with the Building Commission claiming that she had paid Mr Gallacher $35,600 and, that he had 'hardly completed anything'. She complained about the workmanship in relation to a number of items which Mr Gallacher had commenced building. Ms Jacob's position is that work done by Mr Gallacher to 6 December 2012 was faulty and unsatisfactory. Since 6 December 2012, Mr Gallacher has returned to the site and completed, or agreed to remedy, a number of items. In relation to the items remaining in dispute between the parties, the Tribunal was not satisfied, on the evidence presented by Ms Jacob, that the work was faulty or unsatisfactory. In relation to some items in dispute, the work was merely incomplete, rather than unsatisfactory. Accordingly, the application was dismissed.
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Category: B
Representation: Counsel:
Applicant : In person
Respondents : In person
Solicitors:
Applicant : N/A
Respondents : N/A
Case(s) referred to in decision(s):
Hoskins and Daniel Vinci T/As D'Vinci Contracting [2011] WASAT 188
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REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 Ms Jasmine Jacob complained to the Building Commission (Commission) about the quality of the work done during the partial construction of her home by one of her sub contractors, Mr Dale Gallacher. 2 Ms Jacob owns a block at No 247 Wellington Street, Northam. Ms Jacob is an approved ownerbuilder. A building permit was issued by the Shire of Northam in Ms Jacob's name as the builder. Ms Jacob is building her home on the block. 3 Mr Gallacher is a carpenter with 30 years' experience. Mr Gallacher has operated his own business since 1980. 4 On 21 October 2012, Ms Jacob agreed with Mr Gallacher that he would supply and erect a timber-framed house for her. The contract was for the amount of $44,000 (Hearing Booklet at page 7). The items included in the contract are contained in the quotation from Mr Gallacher (Hearing Booklet at page 7). 5 Mr Gallacher commenced the building work on 21 October 2012. Mr Gallacher hired a generator to power the site, as Ms Jacob had not provided onsite power. Eventually on 5 December 2012, power was connected to the site (Exhibit 4). 6 On 6 December 2012, Ms Jacob ordered Mr Gallacher off site. Mr Gallacher said that this was in effect because Ms Jacob tried to vary the terms and the amount of the contract. Mr Gallacher did not agree to the changes proposed by Ms Jacob (Hearing Booklet at page 83). 7 On 21 December 2012, Ms Jacob lodged a complaint with the Commission claiming that she had paid Mr Gallacher $35,600 and that he had 'hardly completed anything'. She complained about the workmanship in relation to a number of items which Mr Gallacher had commenced building. Ms Jacob's position is that work done by Mr Gallacher to 6 December 2012 was faulty and unsatisfactory. 8 In response, Mr Gallacher stated that he had been paid only $21,000 for the work. He also claimed that Ms Jacob had prevented him from returning to the site to complete the work unless he clad the house in Hardieplank, instead of Colorbond, as contracted (Hearing Booklet (Page 5)
at page 24). Mr Gallacher's position is that the work was incomplete, rather than being faulty or unsatisfactory work. 9 Before considering the items in dispute, the Tribunal must be satisfied that it has jurisdiction to determine Ms Jacob's application.
Relevant legislation - jurisdiction 10 This is an application under the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act). 11 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. 12 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 Tribunal for it to deal with under s 38 of the BSCRA Act. 13 This matter was validly transferred to the Tribunal pursuant to s 11(1)(d) of the BSCRA 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. 14 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. 15 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. 16 'Home building work' is defined in s 3 of the BSCRA Act and s 3 of the Home Building Contracts Act 1991 (WA) (HBC Act), and includes 'constructing or re-constructing a dwelling'. 17 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 'remedy the building service as specified in the order'. (Page 6)
18 In this application, Mr Gallacher carried out 'home building work' for Ms Jacob as the home owner under a contract. Only the work within the terms of the contract forms part of the regulated building service. 19 Accordingly, the Tribunal is satisfied that it has jurisdiction to deal with this matter.
Application in the Tribunal 20 The manner in which the matter proceeded in the Tribunal is set out in detail below. This is relevant to the manner in which the evidence was adduced and the final issues to be determined by the Tribunal. 21 By way of background, on 22 March 2013, the Commission validly transferred this matter to the Tribunal. 22 On 28 March 2013, Ms Jacob wrote to the Tribunal and enclosed a written report from Mr Malcolm Porter (Hearing Booklet at page 40). Mr Porter is a registered builder and registered plumber. Ms Jacob wrote that Mr Porter's report is 'clear evidence of the faulty workmanship' by Mr Gallacher. 23 The matter was listed for directions in the Tribunal on 11 April 2013. The proceeding was adjourned to a second direction hearing in order for Mr Gallacher to attend the site and for him to have the opportunity to attend to the items listed in the report from Mr Porter. 24 At the second directions hearing on 14 May 2013, the matter was programmed for final hearing on 21 June 2013. The orders confirmed that Ms Jacob's claim focussed on the alleged defective workmanship performed by Mr Gallacher and that she was seeking an order that he remedy the regulated building service. 25 On 13 June 2013, the final hearing was adjourned to 5 July 2013, to allow Mr Gallacher additional time to complete the outstanding items. Then on 24 June 2013, Ms Jacob wrote to the Tribunal and requested an adjournment of the final hearing from 5 July 2013, as her witness, Mr Steve Callaway, was not available until after 18 July 2013. Accordingly, the final hearing was adjourned to 26 July 2013.
Final hearing 26 The final hearing was held over the course of several days on 26 July, 20 August and 1 November 2013. (Page 7)
27 Ms Jacob relied on the expert evidence of Mr Callaway, a designer and draftsman. Mr Callaway has worked as a draftsman since 1977. Mr Callaway drafted the house plans for Ms Jacob and has attended the site on several occasions. 28 Mr Gallacher relied on the expert evidence of Mr Joe Corcoran. Mr Corcoran is a registered builder with 34 years' experience. 29 The Tribunal informed all witnesses that while they would not be on oath in the Tribunal, under s 98 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), it was an offence to give false or misleading information to the Tribunal.
Final hearing - 26 July 2013 30 On 26 July 2013, Ms Jacob and Mr Gallacher gave brief opening statements to the Tribunal. Ms Jacob and Mr Gallacher both gave evidence in person before the Tribunal and they were both subject to crossexamination. Mr Callaway was called to give evidence by Ms Jacob. Mr Callaway gave his evidence via telephone. As the hearing was not concluded on 26 July 2013, it was adjourned to a second hearing day on 20 August 2013. 31 On 26 July 2013, the Tribunal ordered Ms Jacob to provide a current written report from a building expert which identifies any items, listed in Mr Porter's report and Mr Callaway's May 2013 report, which are yet to be remedied by Mr Gallacher.
Noncompliance with orders of 26 July 2013 32 Unfortunately Ms Jacob did not provide the Tribunal with a current written report from a building expert, contrary to the orders made on 26 July 2013. On 8 August 2013, Ms Jacob provided the Tribunal with an unsigned typewritten document in her name and headed 'Report of remedial work'. A number of colour photographs accompanied the document. The document stated that 'after discussing with Steve Callaway[,] the following things are still pending and needs [sic] remedying '. 33 The document headed 'Report of remedial work' is not a current written report from a building expert. The document merely purports to report what Mr Callaway told Ms Jacob, rather than being a report from Mr Callaway himself. (Page 8)
34 In addition, Ms Jacob did not provide Mr Gallacher with a copy of the document headed 'Report of remedial work', contrary to the orders made on 26 July 2013. On 12 August 2013, Mr Gallacher attended the Tribunal and received a copy of Ms Jacob's document headed, 'Report of remedial work'. On 19 August 2013, Mr Gallacher responded in writing to Ms Jacob's document. Mr Gallacher also provided the Tribunal with an email from SHS Building Consultants dated 15 August 2013 regarding bracing requirements and some additional photographs.
Final hearing 20 August 2013 35 As Ms Jacob did not provide a current written report from a building expert, the second day of the final hearing listed to take place on 20 August 2013 commenced; however, it was adjourned soon thereafter. Ms Jacob did not offer any reasonable explanation for her failure to comply with the order of the Tribunal made on 26 July 2013. However, the Tribunal indulged Ms Jacob by allowing her further time for compliance with the order and to enable Mr Gallacher adequate time to respond. In particular, an order was made on 20 August 2013 in the following terms: The applicant is to file with the Tribunal and send by registered post to the respondent a current written report from a building expert which identifies any items which are yet to be remedied by the respondent and which are listed in Mr Porter's report of 28 February 2013 and Mr Callaway's undated report of a site visit dated 15 May 2013. [Emphasis added]. 36 On 20 August 2013, Mr Gallacher also agreed not to remedy any further items until the matter was finalised in the Tribunal.
Compliance with the orders of 20 August 2013 37 On 30 August 2013, Ms Jacob complied with the Tribunal orders made and she provided: (Page 9)
• 12 colour photographs which are dated 25 August 2013 (Hearing Booklet at page 106). 38 On 23 September 2013, Mr Gallacher provided: 39 On 1 October 2013, Ms Jacob advised the Tribunal that she wished to have Mr Corcoran available for crossexamination at the hearing on 1 November 2013.
Final hearing 1 November 2013 40 On 1 November 2013, Ms Jacob recalled Mr Callaway to give evidence in relation to his report of his site inspection of the property on 22 August 2013. Mr Corcoran also gave evidence. Both witnesses were subject to crossexamination. Both parties gave brief closing submissions on 1 November 2013. 41 On 1 November 2013, a consent order was made by the Tribunal which required that by 15 November 2013, Mr Gallacher was to trim the timber battens which span more than 800 millimetres. As a result, 'Roof structure item 11' has been dealt with by way of consent order.
Documents 42 Over the course of the proceedings, various documents and photographs were provided by the parties to the Tribunal. These documents formed the Hearing Booklet, which comprises 122 pages and is in two parts. The Hearing Booklet is marked as Exhibit 1 (pages 1 69), and Exhibit 11 is the supplementary Hearing Booklet which comprises pages 70 - 122. 43 Mr Gallacher provided the following additional documents at the hearing on 26 July 2013 and they were marked as exhibits as follows: (Page 10)
• Exhibit 4 - Email from Western Power confirming power supply on 5 December 2012 - dated 25 July 2013. • Exhibit 5 Six pages of plans entitled 'Proposed Residence for Y Jacob Lot 247-56 Wellington St, Northam' - dated May 2012. • Exhibit 6 - Invoice No 194719 from The Midland Timber Co Pty Ltd - dated 4 July 2013. • Exhibit 7 - Invoice No 17489826 from Midalia Steel - dated 29 November 2012. • Exhibit 8 - Invoice No 17880713 from Midalia Steel - dated 14 June 2013. • Exhibit 9 - Document handwritten by Mr Gallacher and entitled 'Remedial work as suggested by Steve Callaway'. 44 Ms Jacob provided the following additional document at the hearing on 26 July 2013 and it was marked as: • Exhibit 10 - Plans submitted to the Shire of Northam on 11 September 2012. 45 Ms Jacob provided the following additional document at the hearing on 1 November 2013 and it was marked as: • Exhibit 12 extracts from AS 1684.42010 Residential timber-framed construction.
Expert witnesses
Mr Callaway 46 Ms Jacob called Mr Callaway to give evidence. 47 Mr Callaway gave evidence before the Tribunal on 26 July 2013 and 1 November 2013. Mr Callaway provided two reports to the Tribunal: • May 2013 report (Hearing Booklet at page 48) an undated report based on his visit to the site on 15 May 2013. Mr Callaway examined the items listed in Mr Porter's report. (Page 11)
• August 2013 report (Hearing Booklet at page 96) - an undated report based on his visit to the site on 22 August 2013. Mr Callaway, as Ms Jacob's expert, was ordered to identify any items which are yet to be remedied by Mr Gallacher.
Mr Corcoran 48 During the final hearing on 1 November 2013, Mr Corcoran was available for crossexamination by Ms Jacob. Mr Corcoran is a registered builder. 49 Mr Corcoran's report is in the Hearing Booklet at page 116. Mr Corcoran visited the site on 17 September 2013 to prepare his report. The Tribunal refers to this report as Mr Corcoran's September 2013 report.
Summary 50 The Tribunal is satisfied, subject to the findings made below, that both Mr Callaway and Mr Corcoran are generally qualified as experts to give opinion evidence relating to their observations and concerning the workmanship issues in this proceeding.
Preliminary observations 51 In the Tribunal's view, there are number of important observations to be borne in mind when considering the reasons below. These observations will place the reasons below in context. The observations are based on the evidence available to the Tribunal and are as follows: (Page 12)
3) Ms Jacob, as owner-builder, had control of the building site. Mr Gallacher did not control the building site. Ms Jacob arranged for other tradespeople to attend the site as required and this was done independently of Mr Gallacher. For example, from as early as December 2012, Mr Van Den End, a welder, attended the site (Hearing Booklet at page 38), and later, another carpenter, Mr Connolly (Hearing Booklet at page 104). 4) Mr Porter's report of February 2013 identifies the items of complaint in Ms Jacob's application. However, since February 2013, Mr Gallacher has attended the site on numerous occasions to complete outstanding items of work for Ms Jacob. 5) Ms Jacob did not call Mr Porter to give evidence at the final hearing. Accordingly, Mr Gallacher has not had the opportunity to put his position to Mr Porter in crossexamination. 6) The Tribunal is able to attach some weight to Mr Callaway's evidence in relation to observed facts which are within his personal knowledge. However, matters relating to his opinion in relation to the standard of the work done by Mr Gallacher may be coloured by the business relationship between Ms Jacob and himself, and accordingly, less weight may be attached to his opinion in these circumstances. Also, Mr Callaway has made certain assumptions in his evidence relating to the terms of the contract between Mr Gallacher and Ms Jacob. In relation to these matters, like the floor insulation, the Tribunal is not able to attach any weight to his evidence because it is not based on the facts as found by the Tribunal below and is beyond his area of expertise. 7) Mr Gallacher is in a similar position to Mr Callaway, in that his evidence in relation to the standard of the work done by him is coloured by his previous business relationship with Ms Jacob, and accordingly, less weight may be attached to his opinion in these circumstances. 8) Mr Corcoran is the only truly independent witness to give evidence before the Tribunal. The Tribunal attaches a (Page 13)
great deal of weight to his opinion, as expressed in his report, and his oral evidence before the Tribunal. 9) Ms Jacob provided Mr Gallacher with the plans which were printed on 25 July 2012 and are marked Exhibit 5 in these proceedings. The plans lodged with the Shire of Northam on 11 September 2012 were not provided to Mr Gallacher (Exhibit 10). The plans at 'Exhibit 5' and Exhibit 10 differ in some material respects, which are discussed further below.
Issues to be determined by the Tribunal 52 The complaint items which the Tribunal is required to determine are as set out in Mr Porter's report dated 28 February 2013 (Hearing Booklet at page 40). However, since Mr Porter inspected the property for the purpose of his report sometime in February 2013, a number of items have been remedied by Mr Gallacher or, in some cases, a third party engaged by Ms Jacob. 53 Accordingly, the issues to be determined by the Tribunal are set out below. 54 The reference to headings and item numbers below corresponds to the classifications made by Mr Porter in his report dated 28 February 2013 (Hearing Booklet at page 40). 55 Having listened very carefully to the oral evidence from all of the witnesses and the submissions made at the final hearing and considered all of the documents before it, the Tribunal will now consider if the work undertaken by Mr Gallacher and listed below is faulty or unsatisfactory.
Sub-floor - item 1: stumps 56 Mr Porter's report of 28 February 2013 relevantly states that: Stumps have been installed using 100 x 100 SHS … Drawings call for 90 x 90 with wall thickness of 2.5mm. 57 Mr Porter stated in the report that he could not ascertain the 'gauge of this material'. That is, Mr Porter could not ascertain the thickness of the wall of the stumps. However, Mr Callaway's report issued in May 2013 states that: Stumps were measured at 90 [x 90] x 2.5 SHS as per drawings (inserted by Tribunal). (Page 14)
58 Therefore, Mr Callaway was able to ascertain the gauge of the material and accordingly he was satisfied that the stump installation complied with the plans. 59 The Tribunal accepts Mr Callaway's evidence in this regard and finds that the stump installation complied with the plans. 60 Based on all of the evidence before it, the Tribunal is not satisfied that the regulated building service listed as 'Sub-floor item 1'in Mr Porter's report is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act. 61 Accordingly, the Tribunal declines to make a building remedy order in relation to 'Subfloor item 1'in Mr Porter's report and it is dismissed.
Subfloor item 2: spacing of the stumps 62 Mr Porter's report of 28 February 2013 states that the spacing of the stumps 'is not equal'. 63 Mr Gallacher's evidence was that the spacing of some of the stumps was not equal due to the rocky ground. However, he said that since Mr Porter's report, he has checked the stumps and is satisfied that none of them are overspanned. 64 The Tribunal notes that this item is not referred to in Mr Callaway's report of 22 August 2013 (Hearing Booklet at page 96). Mr Callaway's report of 22 August 2013 dealt only with the complaint items which remained outstanding at the time of his site visit. 65 The Tribunal finds that, based on Mr Gallacher's evidence, and Mr Callaway's failure to mention the complaint item, while the stumps are unevenly spaced, this is not defective work, as it does not result in any overspanning. 66 Based on all of the evidence before it, the Tribunal is not satisfied that the regulated building service listed as 'Sub-floor item 2'in Mr Porter's report is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act. 67 Accordingly, the Tribunal declines to make a building remedy order in relation to 'Subfloor item 2'in Mr Porter's report and it is dismissed. (Page 15)
Sub-floor - item 3: concrete surrounding the stumps 68 Mr Porter's report states that the concrete is about 300 millimetres, not 450 millimetres by 500 millimetres as indicated on the approved drawings (Exhibit 10), and 'may not be of adequate depth'. 69 Mr Callaway states in his May 2013 report that 'concrete footings … stumps were not able to be measured and appear to be around 300mm diameter which is less than the 450mm as stated on the drawings' (Hearing Booklet at page 48). 70 Mr Callaway failed to mention this complaint item in his August 2013 report (Hearing Booklet at page 96) although at the hearing, Mr Callaway gave evidence that he had some concerns about the concrete sizing around the stumps. However, on questioning by the Tribunal, he confirmed that he had not measured the concrete footings. 71 Mr Gallacher told the Tribunal that he used a twoman 350 millimetre auger to dig the pier holes. 72 Ms Jacob told the Tribunal in closing submissions that she had measured the stump footings at 200 millimetres by 400 millimetres. It is not clear to the Tribunal whether Ms Jacob measured each of the footings or a sample of one footing. 73 Due to the variations in dimensions between Mr Porter's estimate of 300 millimetres, Ms Jacob's measurements of 200 millimetre by 400 millimetres and Mr Callaway's estimate that the stump footings were not the 'correct size', the Tribunal finds Ms Jacob's witnesses to be unconvincing as to the size and the depth of the footings. Further, it is significant in the Tribunal's view that while Mr Callaway mentions the item in his May 2013 report, he does not mention this item in his August 2013 report. The Tribunal attaches great weight to this factor because the sole purpose of Mr Callaway's site inspection on 22 August 2013 was to comment on the outstanding complaint items only. 74 The Tribunal prefers the evidence of Mr Gallacher in relation to the size of the concrete surrounding the stump footings, namely, 350 millimetres. The Tribunal accepts that the size of the stump footings does not meet that shown in the drawings, as per both Mr Gallacher's copy of the plans printed on 25 July 2012 (Exhibit 5) and the later plans submitted by Ms Jacob printed on 6 August 2012 (Exhibit 10). Moreover, given that the Tribunal accepts that Mr Gallacher carried out the normal (Page 16)
method of drilling the pier holes, the Tribunal does not find a lack of proficiencyon his part. 75 Based on all of the evidence before it, the Tribunal is not satisfied that the regulated building service listed as 'Sub-floor - item 3', the stumps in Mr Porter's report is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act. 76 Accordingly, the Tribunal declines to make a building remedy order, in relation to 'Subfloor - item 3' in Mr Porter's report and it is dismissed.
Sub-floor - item 4: stumps do not appear to be of minimum distance out of the ground 77 Mr Porter states in his February 2013 report that 'Stumps do not appear to be of minimum distance out of the ground at the carport end'. Mr Porter was not called to give evidence, and accordingly, the Tribunal has not had the benefit of hearing his evidence orally, and Mr Gallacher has not had the opportunity to crossexamine Mr Porter in relation to this item. 78 Mr Gallacher's evidence in relation to this item was that in relation to one stump, the Shire engineer told him to bund up the concrete above ground level. 79 Mr Callaway failed to mention this complaint item in his August 2013 report, nor did he give evidence in relation to it at the final hearing. 80 The Tribunal accepts Mr Gallacher's explanation, which was not contradicted by Ms Jacob or Mr Callaway. 81 Based on all of the evidence before it, the Tribunal is not satisfied that the regulated building service listed as 'Sub-floor - item 4' in Mr Porter's report is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act. 82 Accordingly, the Tribunal declines to make a building remedy order in relation to 'Sub-floor - item 4' in Mr Porter's report and it is dismissed.
Sub-floor - item 5: floor joints are not of equal spacing 83 Mr Porter states in his February 2013 report that, 'Floor joints are not of equal spacing, and vary from 450 to 700 millimetres centre to centre'. (Page 17)
84 This item has now been remedied and is no longer claimed by Ms Jacob. Accordingly, the Tribunal declines to make a building remedy order in relation to 'Subfloor item 5' in Mr Porter's report and it is dismissed.
Sub-floor - item 6: insulation 85 Mr Porter states in his February 2013 report that 'No insulation has been fitted to the underside of the floor as per drawing and the BCA …'. 86 Mr Gallacher's response is that his contract includes only R70 insulation batts to the wall, as set out in his quote (Hearing Booklet at page 7). Further, Mr Gallacher's copy of the plans (Exhibit 5) does not refer to insulation to the floor. 87 The Tribunal notes that Ms Jacob's copy of the plans as submitted to the Shire of Northam (Exhibit 10) refer to 'R1.8 insulation to floor reflective side down'. However, according to Mr Gallacher, the plans forming Exhibit 10 were never in his possession. The Tribunal accepts Mr Gallacher's evidence that the only plans he had were those forming Exhibit 5. 88 The Tribunal is satisfied that, based on the contract (Hearing Booklet at page 7) and the plans relied on by Mr Gallacher (Exhibit 5), it was not within Mr Gallacher's contract to provide and install insulation to the underside of the floor. 89 Accordingly, the Tribunal finds that the floor insulation was outside Mr Gallacher's scope of works and that the provision and installation of insulation to the underside of the floor is Ms Jacob's responsibility, as the holder of the building permit. 90 Based on all of the evidence before it, the Tribunal is not satisfied that the regulated building service listed as 'Sub-floor - item 6' in Mr Porter's report is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act. 91 Accordingly, the Tribunal declines to make a building remedy order in relation to 'Sub-floor - item 6' in Mr Porter's report and it is dismissed.
Sub-floor - item 7: timber floor sheets and floor joists 92 Mr Porter states in his February 2013 report that 'Timber floor sheets are of 19 millimetre structafloor type (particle board) which has been substituted from 22mm. Floor joists as recommended by the (Page 18)
manufacturer need to be a maximum of 450mm centre to centre to carry this type of floor'. 93 As set out in Mr Callaway's August 2013 report, the 'additional C10019 floor joists have been installed and [centres] are up to 450mm maximum'. Mr Callaway also noted in the August 2013 report 'some bearers and joists that need to be trimmed off'. 94 As set out in the Tribunal order made on 1 November 2013, Mr Gallacher has agreed to undertake this item of work.
Subfloor item 8: floor sheets have not been secured to floor joists 95 Mr Porter states in his February 2013 report that 'Floor sheets have not been secured to floor joists as per manufacturer's recommendations with only about 8 fixings instead of the 49 required'. 96 Mr Callaway's August 2013 report states that the 'Floor sheeting has had additional screws installed'. 97 The Tribunal is satisfied that this item has now been remedied. Accordingly, the Tribunal declines to make a building remedy order in relation to 'Sub-floor - item 8' in Mr Porter's report and it is dismissed.
Sub-floor - item 9: no set down allowance has been made for wet areas 98 Mr Porter states in his February 2013 report that 'No set down allowance has been made in the wet areas, with only structafloor being used at the same level as the passage area'. 99 Mr Gallacher's response is that no set down is shown on the plan he relied on (Exhibit 5) and that a set down is not required if a shower base fitting is used. 100 Further, it is significant, in the Tribunal's view that while Mr Callaway mentions the item in his May 2013 report (Hearing Booklet at page 48), he does not mention this item in his August 2013 report (Hearing Booklet at page 96). The Tribunal attaches great weight to this factor because the sole purpose of Mr Callaway's site inspection on 22 August 2013 was to comment on the outstanding complaint items only. 101 Based on all of the evidence before it, the Tribunal is not satisfied that the regulated building service listed as 'Sub-floor - item 9' in Mr Porter's report is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act. (Page 19)
102 Accordingly, the Tribunal declines to make a building remedy order in relation to 'Sub-floor - item 9' in Mr Porter's report and it is dismissed.
Subfloor item 10: stump bracing 103 Mr Porter states in his February 2013 report that 'Stump bracing on the approved drawing call for 75 x 5 flat bar fully welded or bolted. 25 mm SHS has been substituted. Bracing is also missing from the carport end'. 104 At the hearing on 26 July 2013, Mr Gallacher informed the Tribunal that this work had now been completed. Mr Callaway does not mention the item in either his May 2013 report (Hearing Booklet at page 48) or his August 2013 report (Hearing Booklet at page 96). 105 Accordingly, the Tribunal accepts that Mr Gallacher has remedied 'Subfloor Item No 10'. 106 Based on all of the evidence before it, the Tribunal is not satisfied that the regulated building service listed as 'Sub-floor - item 10' in Mr Porter's report is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act. 107 Accordingly, the Tribunal declines to make a building remedy order in relation to 'Sub-floor - item 10' in Mr Porter's report and it is dismissed.
Wall frames item 1: size of bottom and top plates 108 Mr Porter states in his February 2013 report that 'Bottom and top plate[s] do not appear to be of correct size timber. I would expect to see 95 x 45 plates[,] not 95 x 35'. 109 Mr Callaway stated in his August 2013 report that he had obtained a copy of extracts from AS 1684.42010 Residential timber-framed construction (Exhibit 12). Mr Callaway stated that, in his view, the top and bottom plates did not comply with AS 1684.4 and that Mr Gallacher would have to double the 90 by 35 plates top and bottom. 110 Mr Corcoran stated in his report of September 2013 (Hearing Booklet at page 116) that seasoned soft wood stress grade MBG 10 graded timber of 90 millimetre by 35 millimetre was not suitable for top and bottom plates. However, Mr Cochrane went on to state that if the timber rating was F7, then 90 millimetre by 35 millimetre top and bottom plates were acceptable. (Page 20)
111 Both Mr Callaway and Mr Corcoran gave evidence on this issue. On questioning by the Tribunal, neither witness could confirm the structural rating of the material in question, based on their visual inspections. 112 In response, Mr Gallacher stated that 90 millimetre by 35 millimetre MGP 10 plates are acceptable for a stick roof. He submitted that he had used that material for 30 years and that engineers from MiTek Australia Ltd had certified the use of 90 millimetre by 35 millimetre MGP 10 top and bottom plates as acceptable (Hearing Booklet at page 119). Mr Gallacher also stated that F7 or MGP 10 rated plates were used. On questioning from Ms Jacob that MBG 10 and F7 were different ratings, Mr Gallacher agreed, but stated that he had followed the MiTek Australia Ltd specification (Hearing Booklet at page 119) and had invoices from Midland Timber Company to show the grade of the timber that he had purchased. 113 The Midland Timber Company invoices relating to the purchase of the top and bottom plates were not produced to the Tribunal. However, the Tribunal notes that Mr Gallacher is a very experienced carpenter who has built a number of stick roofs and is familiar with the timber requirements for them. Mr Gallacher's evidence before the Tribunal was consistently given. Mr Gallacher's claims in relation to the rating of the timber used have not been challenged by Mr Callaway or Mr Corcoran. The Tribunal accepts Mr Gallacher as a witness of truth. Accordingly, the Tribunal accepts Mr Gallacher's evidence that he purchased timber plates with the required rating, namely, F7. 114 The Tribunal is satisfied, based on Mr Gallacher's own evidence and the engineering documents in support of his claims (Hearing Booklet at page 119), that his use of the 90 millimetre by 35 millimetre top and bottom plates is within the requirements of AS 1684.4 (Exhibit 12). 115 Based on all of the evidence before it, the Tribunal is not satisfied that the regulated building service listed as 'Wall frames item 1'in Mr Porter's report is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act. 116 Accordingly, the Tribunal declines to make a building remedy order in relation to 'Wall frames item 1' in Mr Porter's report and it is dismissed. (Page 21)
Wall frames item 2: spacing of external wall studs 117 Mr Porter states in his February 2013 report that 'External wall stud spacing ranges from 450 to 700 centre to centre and doesn't exist below windows'. 118 Mr Gallacher has maintained consistently throughout the application that the wall studs were originally left out so that he could bring gyprock sheets into the home easily (Hearing Booklet at page 58 and Mr Gallacher's evidence on 26 July 2013). 119 Mr Gallacher's evidence before the Tribunal on 26 July 2013 was that he had now placed a stud in the middle of the external wall and so the spacing is now no greater than 600 millimetres. 120 Mr Callaway failed to mention this complaint item in his August 2013 report, nor did he give evidence in relation to it at the hearing on 1 November 2013. 121 The Tribunal accepts Mr Gallacher's explanation in relation to the wall studs and notes that it was not contradicted by Ms Jacob or Mr Callaway. 122 Based on all of the evidence before it, the Tribunal is not satisfied that the regulated building service listed as 'Wall frames item 2'in Mr Porter's report is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act. 123 Accordingly, the Tribunal declines to make a building remedy order in relation to 'Wall frames item 1'in Mr Porter's report and it is dismissed
Wall frames item 3: secondary jamb stud 124 Mr Porter states in his February 2013 report that 'No secondary jamb stud has been fitted on window or external door openings (6.2.3 and fig 6.9 of the codes)'. 125 Mr Gallacher's response of 20 May 2013 (Hearing Booklet at page 58) and his evidence before the Tribunal on 26 July 2013 was that all the studwork has been corrected since February 2013. 126 Mr Callaway failed to mention this complaint item in his August 2013 report, nor did he give evidence in relation to it at the hearing on 1 November 2013. (Page 22)
127 The Tribunal accepts Mr Gallacher's explanation, which was not contradicted by Ms Jacob or Mr Callaway. 128 Based on all of the evidence before it, the Tribunal is not satisfied that the regulated building service listed as 'Wall frames item 3'in Mr Porter's report is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act. 129 Accordingly, the Tribunal declines to make a building remedy order in relation to 'Wall frames item 3'in Mr Porter's report and it is dismissed.
Wall frames items 4 and 5: bracing to external and internal walls 130 Mr Porter states in his February 2013 report that 'No approved bracing has been fitted to external walls … [or the] internal walls'. 131 Mr Gallacher's response of 20 May 2013 (Hearing Booklet at page 58) and his evidence before the Tribunal on 26 July 2013 was that temporary metal speed bracing had been used on the roof and the walls. 132 Further, Mr Gallacher said that if additional bracing was required, then the owner-builder, Ms Jacob, would need to provide him with the engineering details. Mr Gallacher said that he was not provided with any engineering drawings showing the bracing which was required. His evidence was that external bracing would be applied at the same time as the cladding. 133 Mr Callaway stated in his August 2013 report that: 'Perforated 25mm strap bracing with tensioners have been installed in several locations. The bracing on the west end is poorly installed with a kink this should be redone as it is placing sideways pressure on the studs. There is a requirement for additional bracing in the front and rear walls at the west end. Speed bracing previously installed has been removed. 134 In relation to wall bracing, Mr Callaway stated in his evidence, that the wall bracing was not adequate and that he expected there to be more bracing on the external walls, based on the photographs taken by Mr Gallacher (Hearing Booklet at pages 91 93). Mr Callaway stated that the bracing was not to his standard. Mr Gallacher's evidence was that he complied with MiTek Australia Ltd's requirements. 135 Mr Callaway admitted that he did not know the bracing requirements of AS 1684 and was not sure whether the Building Code of Australia (BCA) had been breached; only that he would have done more bracing. (Page 23)
136 Given Mr Callaway's lack of certainty in relation to the requirements for wall bracing, and Mr Gallacher's evidence in relation to Ms Jacob's lack of detail in the plans, and the compliance with the MiTek Australia Ltd plans he was given to work from, the Tribunal is not satisfied that the work done by Mr Gallacher is faulty and unsatisfactory in this regard. 137 Based on all of the evidence before it, the Tribunal is not satisfied that the regulated building service listed as 'Wall frames items 4 and 5'in Mr Porter's report is faulty or unsatisfactory within the meaning of s 38(1)(a) of theBSCRA Act. 138 Accordingly, the Tribunal declines to make a building remedy order in relation to 'Wall frames – items 4 and 5' in Mr Porter's report and it is dismissed.
Wall frames item 6: noggings 139 Mr Porter states in his February 2013 report that 'Noggings are missing throughout the entire framework'. 140 Mr Gallacher's response of 20 May 2013 (Hearing Booklet at page 58) was that all noggings had been refixed. Mr Gallacher's evidence before the Tribunal on 26 July 2013 was that the noggings were originally left out so that the wall sheets could be passed in and out of the building. Mr Gallacher said that the noggins had all been completed. 141 Mr Callaway stated in his August 2013 report that 'A small nogging is missing on the west end of the wall facing Wellington Street.' Mr Callaway makes no reference to any BCA in relation to noggings. 142 The Tribunal accepts Mr Callaway's evidence that a small nogging is missing. However, it considers that in the context of the building where approximately 200 noggings were installed, this is such a minor detail that it is not faulty or unsatisfactory in this regard. The Tribunal also notes that Mr Gallacher suggests that members of the public have had access to the site, and that it is possible that a nogging which had been installed by him was then removed by a third party. 143 Based on all of the evidence before it, the Tribunal is not satisfied that the regulated building service listed as 'Wall frames item 6' in Mr Porter's report is faulty or unsatisfactory within the meaning of s 38(1)(a) of theBSCRA Act. (Page 24)
144 Accordingly, the Tribunal declines to make a building remedy order in relation to 'Wall frames item 6' in Mr Porter's report and it is dismissed.
Wall frames item 7: wall intersections 145 Mr Porter states in his February 2013 report that 'Wall intersections do not comply with the codes that are 6.2.1.3 and fig 6.3'. 146 Mr Gallacher's response of 20 May 2013 (Hearing Booklet at page 58) was that all intersecting walls were now complete. Mr Gallacher's evidence before the Tribunal on 26 July 2013 was that he had put a double stud in four to five places. 147 Mr Callaway failed to mention this complaint item in his August 2013 report, nor did he give evidence in relation to it at the hearing on 1 November 2013. 148 The Tribunal accepts Mr Gallacher's explanation that this aspect of his work had now been completed. This claim was not contradicted by Ms Jacob or Mr Callaway. 149 Based on all of the evidence before it, the Tribunal is not satisfied that the regulated building service listed as 'Wall frames item 7'in Mr Porter's report is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act. 150 Accordingly, the Tribunal declines to make a building remedy order in relation to 'Wall frames item 7'in Mr Porter's report and it is dismissed.
Wall frames – item 8 – window openings 151 Mr Porter states in his February 2013 report that 'No window openings have been allowed for in the bathroom, laundry or toilet areas'. 152 Mr Gallacher's response of 20 May 2013 (Hearing Booklet at page 58) was that an allowance has been made for all windows and that no heads were required where the front windows were less than 600 millimetres. 153 Mr Gallacher's evidence before the Tribunal on 26 July 2013 was that he had now completed all window openings. 154 Mr Callaway states in his August 2013 report that the 'WC window opening is too large' and that 'there is no opening for the laundry window'. (Page 25)
155 Mr Gallacher's evidence before the Tribunal on 1 November 2013 was that another tradesman had put the laundry window opening in and that the toilet window opening could easily be adjusted. 156 The Tribunal accepts Mr Gallacher's explanation that this aspect of his work had now been completed. This claim was not contradicted by Ms Jacob or Mr Callaway. 157 Based on all of the evidence before it, the Tribunal is not satisfied that the regulated building service listed as 'Wall frames item 8'in Mr Porter's report is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act. 158 Accordingly, the Tribunal declines to make a building remedy order in relation to 'Wall frames item 8' in Mr Porter's report and it is dismissed.
Wall frames item 9: frames 159 Mr Porter states in his February 2013 report that 'Frames are missing throughout the home'. 160 Mr Gallacher's response of 20 May 2013 (Hearing Booklet at page 58) was that all framework was now complete. 161 Mr Gallacher's evidence before the Tribunal on 26 July 2013 was that the framework had been done, apart from between the built in robes. The work was incomplete but was not faulty or unsatisfactory. 162 Mr Callaway states in his August 2013 report that 'Frames are still missing from the front of the linen cupboard and between the BIR's. A stud has been removed from the BIR in the front bedroom but no doorway framed'. 163 The Tribunal accepts Mr Gallacher's explanation that this aspect of his work had now been completed. This claim was not contradicted by Ms Jacob or Mr Callaway. 164 Based on all of the evidence before it, the Tribunal is not satisfied that the regulated building service listed as 'Wall frames item 9'in Mr Porter's report is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act. (Page 26)
165 Accordingly, the Tribunal declines to make a building remedy order in relation to 'Wall frames item 9' in Mr Porter's report, and it is dismissed.
Wall frames item 10: frames not secured to sub floor 166 Mr Porter states in his February 2013 report that 'No wall frames have been bolted, or secured adequately[,] to the subfloor'. 167 Mr Gallacher's response of 20 May 2013 (Hearing Booklet at page 59) was that 'Bottom wall plates nailed and fixed with 75 mm bugleheads'. 168 Mr Callaway states in his August 2013 report that 'Frames have not been fixed to the sub structure using bolts'. 169 Mr Gallacher's evidence before the Tribunal on 1 November 2013 was that the wall frames had now been bolted, and that this work was not done by him. 170 The Tribunal accepts Mr Gallacher's explanation that this aspect of his work had now been completed. This claim was not contradicted by Ms Jacob or Mr Callaway. 171 Based on all of the evidence before it, the Tribunal is not satisfied that the regulated building service listed as 'Wall frames item 10'in Mr Porter's report is faulty or unsatisfactory within the meaning of s 38(1)(a) of theBSCRA Act. 172 Accordingly, the Tribunal declines to make a building remedy order in relation to 'Wall frames item 10' in Mr Porter's report and it is dismissed.
Wall frames item 11: villa board 173 Mr Porter states in his February 2013 report that 'Six sheets of villa board have been fitted at random through the house and appear to have been glued with a type of construction adhesive; several of the wall sheets have come free from the wall frame'. 174 Mr Gallacher's response of 20 May 2013 (Hearing Booklet at page 59) was that 'The sheets of villa board are used to square up the timber walls. This is a common practise [sic] and we have been doing it for 20 years'. (Page 27)
175 Mr Gallacher's evidence before the Tribunal on 26 July 2013 was that the villa board is used to brace the frames and that they have now been vandalised. 176 Mr Callaway failed to mention this complaint item in his August 2013 report, nor did he give evidence in relation to it at the hearing. 177 The Tribunal accepts Mr Gallacher's explanation that this aspect of his work was in effect a temporary measure and is not therefore faulty or unsatisfactory work. This claim was not contradicted by Ms Jacob or Mr Callaway. 178 Based on all of the evidence before it, the Tribunal is not satisfied that the regulated building service listed as 'Wall frames item 11'in Mr Porter's report is faulty or unsatisfactory within the meaning of s 38(1)(a) of theBSCRA Act. 179 Accordingly, the Tribunal declines to make a building remedy order in relation to 'Wall frames item 11'in Mr Porter's report and it is dismissed.
Wall frames item 12: lintels 180 Mr Porter states in his February 2013 report that 'No lintels have been fitted above windows or external door openings'. 181 Mr Gallacher's response of 20 May 2013 (Hearing Booklet at page 59) was that 'All lintels secured with 170 x 35 CCA timber beams'. 182 Mr Gallacher's evidence before the Tribunal on 26 July 2013 was that the lintels had been installed since Mr Porter's report was compiled in February 2013. 183 Mr Callaway failed to mention this complaint item in his August 2013 report, nor did he give evidence in relation to it at the hearing on 1 November 2013. 184 The Tribunal accepts Mr Gallacher's evidence that this work has now been completed by him. This claim was not contradicted by Ms Jacob or Mr Callaway. 185 Based on all of the evidence before it, the Tribunal is not satisfied that the regulated building service listed as 'Wall frames item 12'in (Page 28)
Mr Porter's report is faulty or unsatisfactory within the meaning of s 38(1)(a) of theBSCRA Act. 186 Accordingly, the Tribunal declines to make a building remedy order in relation to 'Wall frames item 12'in Mr Porter's report and it is dismissed.
Roof structure item 1: no ribbon plate 187 Mr Porter states in his February 2013 report that 'No ribbon plate has been fitted; although not necessary, it is advisable in this area of seismic activity'. 188 Mr Gallacher's response of 20 May 2013 (Hearing Booklet at page 60) was that he accepted Mr Porter's opinion that the ribbon plate was not necessary. 189 Mr Callaway failed to mention this complaint item in his August 2013 report, nor did he give evidence in relation to it at the hearing on 1 November 2013. 190 The Tribunal accepts Mr Porter's opinion and Mr Gallacher's evidence that a ribbon plate is not necessary. This claim was not contradicted by Ms Jacob or Mr Callaway. 191 Based on all of the evidence before it, the Tribunal is not satisfied that the regulated building service listed as 'Roof structure item 1'in Mr Porter's report is faulty or unsatisfactory within the meaning of s 38(1)(a) of theBSCRA Act. 192 Accordingly, the Tribunal declines to make a building remedy order in relation to 'Roof structure item 1'in Mr Porter's report and it is dismissed.
Roof structure items 2 and 3: size of rafters and ceiling joists 193 At the commencement of the hearing on 26 July 2013, Ms Jacob advised the Tribunal that she accepted Mr Porter's opinion that the rafters and the ceiling joists were acceptable sizes. Accordingly, the complaint in relation to 'Roof structure items 2 and 3' was withdrawn by Ms Jacob. 194 Accordingly, the Tribunal declines to make a building remedy order in relation to 'Roof structure items 2 and 3' in Mr Porter's report, and it is dismissed. (Page 29)
Roof structure items 4 and 5: ceiling joists not connected to roof rafter and no blocking 195 Mr Porter states in his February 2013 report that 'Ceiling joists are not connected to roof rafter, and not secured … No blocking has been fitted to ceiling joists on wall plates,[;] this would prevent rollover which has happened in bedroom 2' (Hearing Booklet at page 41). 196 Mr Gallacher's response of 20 May 2013 (Hearing Booklet at page 60) was that the rafters are all secured and 'triple gripped', and that all joists and trimmers are 'correct and fixed'. Mr Gallacher's evidence was that because the rafters were at 900 millimetre centres and the ceiling joints were at 600 millimetre centres, it was not possible to connect the ceiling joists to the rafters, nor was it a requirement of the BCA. As a result, Mr Gallacher used collar ties. 197 Mr Callaway stated in his August 2013 report that 'Additional collar ties have been installed,[;] however the connections are inadequate and should be bolted[,] not nailed.' 198 Mr Corcoran's report of September 2013 (Hearing Booklet at page 118) relevantly states that 'Collar ties, in section 7.2.16 of the standard it states that collar ties more than 4.2 m need to be bolted and those less than 4.2 m can be nailed. These collar ties are 2.4m and so nailing is adequate' (see Exhibit 12). 199 Mr Callaway's evidence on 1 November 2013 was that he based his August report on what Mr Liam Connolly, a carpenter who was sub contracted to work for Ms Jacob, had told him. Mr Callaway said that he had not viewed the work himself. Ultimately, under crossexamination from Mr Gallacher, Mr Callaway conceded that the collar ties were satisfactory. 200 The Tribunal accepts Mr Corcoran's opinion and Mr Gallacher's evidence that the nailing of the collar ties is adequate in this situation. Further, the Tribunal is satisfied that there is no BCA requirement for Mr Gallacher to use blocking. 201 Based on all of the evidence before it, the Tribunal is not satisfied that the regulated building service listed as 'Roof structure items 4and 5'in Mr Porter's report is faulty or unsatisfactory within the meaning of s 38(1)(a) of theBSCRA Act. (Page 30)
202 Accordingly, the Tribunal declines to make a building remedy order in relation to 'Roof structure items 4and 5'in Mr Porter's report, and it is dismissed.
Roof structure item 6: underpurlins 203 Mr Porter states in his February 2013 report that 'Underpurlins fitted appear to be of nonstructural grade timber and do not appear to be in the correct location'. 204 Mr Gallacher's response of 20 May 2013 (Hearing Booklet at page 60) was that, 'underpurlins are [the] correct distance from [the] wall plate 2.700 for tin roof with 120 x 45 rafters structural'. 205 On 26 July 2013, Mr Gallacher's evidence was that all of the underpurlins had been completed with the exception of the last metre of roof. In this regard, the Tribunal was referred to photograph 4A in Exhibit 2. On 1 November 2013, Mr Gallacher added that the roof was incomplete because he had been ordered off the job by Ms Jacob. 206 Mr Callaway's August 2013 report stated that 'The underpurlins stop short of the west end'. At the final hearing, Mr Callaway stated that he had not measured the span from the wall plate to the wall ridge; however, he thought that it looked like the underpurlins were in the wrong location. Ultimately, Mr Callaway accepted that the underpurlins in the building were adequate. 207 The Tribunal accepts Mr Gallacher's evidence as to why the underpurlins stop short of the west end. In the Tribunal's view, this is an item relating to incomplete work, rather than faulty or unsatisfactory work. Ms Jacob has since engaged another tradesperson to install the remainder of the roof. 208 Based on all of the evidence before it, the Tribunal is not satisfied that the regulated building service listed as 'Roof structure item 6' in Mr Porter's report is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act. 209 Accordingly, the Tribunal declines to make a building remedy order in relation to 'Roof structure item 6' in Mr Porter's report and it is dismissed. (Page 31)
Roof structure item 7: struts not bird mouthed 210 Mr Porter states in his February 2013 report that 'Struts are not halved or bird mouth joints where attached to underpurlins, fig 7.13'. 211 Mr Gallacher's response of 20 May 2013 (Hearing Booklet at page 60) was that he accepted that some of the struts were not 'bird mouthed' to the underside of the purlin; however, he stated that they were strapped with hoop iron. On 26 July 2013, Mr Gallacher referred the Tribunal to photograph 3 in Exhibit 2 which he said showed that the struts had been strapped with hoop iron. 212 Mr Callaway's August 2013 report stated that 'Most struts still haven't been altered no birdsmouths and some lower ends of the struts still land on top plates away from studs'. 213 Mr Corcoran's report of September 2013 (Hearing Booklet at page 118) relevantly states that: 'Struts, section 7.2.15 of the standard states that struts that are not birds mouthed to the purlin can be fixed with a 30 x 8 GI [galvanised iron] strap passed over the under purlin and nailed to the strut, this has now been carried out …'. 214 The Tribunal notes that the standard referred to is ASA 1684.4 (Exhibit 12). 215 Mr Callaway did not give any evidence on 1 November 2013 in relation to 'Roof structure item 7'. 216 Accordingly, the Tribunal accepts Mr Corcoran's evidence in his September 2013 report and his oral evidence on 1 November 2013 to the effect that the struts are now fixed in an appropriate manner. 217 Based on all of the evidence before it, the Tribunal is not satisfied that the regulated building service listed as 'Roof structure item 7' in Mr Porter's report is faulty or unsatisfactory within the meaning of s 38(1)(a) of theBSCRA Act. 218 Accordingly, the Tribunal declines to make a building remedy order in relation to 'Roof structure item 7' in Mr Porter's report and it is dismissed. (Page 32)
Roof structure item 8: no gable outriggers 219 Mr Porter states in his February 2013 report that 'No gable outriggers have been fitted to allow for gable overhang'. 220 Mr Gallacher's response of 20 May 2013 (Hearing Booklet at page 60) was that he needed scaffold to reach the gables and that Ms Jacob, as the builder, had not provided the scaffold to her tradespeople. Mr Gallacher's evidence on 26 July 2013 was that Ms Jacob refused to supply the scaffold. He said that he had an 8 foot trestle; however, scaffold of 4 - 5 metres high was needed to complete this item of work. He said that it was usual for the builder, in this case Ms Jacob, to provide the scaffolding to the building site. Further, Mr Gallacher stated that he had been 'kicked off the job' before he was able to complete the work. 221 Mr Callaway's August 2013 report stated that 'Gable outriggers not installed'. 222 The Tribunal accepts, as does Mr Gallacher, that the gable outriggers were not installed by him. However, the Tribunal also accepts Mr Gallacher's evidence as to why the gable outriggers were not installed. In the Tribunal's view, this is an item relating to incomplete work, rather than faulty or unsatisfactory work. 223 Based on all of the evidence before it, the Tribunal is not satisfied that the regulated building service listed as 'Roof structure item 8' in Mr Porter's report is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act. 224 Accordingly, the Tribunal declines to make a building remedy order in relation to 'Roof structure item 8' in Mr Porter's report and it is dismissed.
Roof structure item 9: metal speed bracing 225 Mr Porter states in his February 2013 report that 'Metal speed bracing does not conform to the approved drawings and no gable end bracing has been fitted'. 226 Mr Gallacher's response of 20 May 2013 (Hearing Booklet at page 61) was that the roof bracing was correct, based on his experience. (Page 33)
227 Mr Callaway did not list 'Roof structure item 9' in either his May 2013 report or his August 2013 report, nor was it raised as an outstanding item at the hearing on 1 November 2013. 228 Accordingly, the Tribunal is not satisfied, based on the evidence before it, that 'Roof structure item 9' remains outstanding. 229 Based on all of the evidence before it, the Tribunal is not satisfied that the regulated building service listed as 'Roof structure item 9' in Mr Porter's report is faulty or unsatisfactory within the meaning of s 38(1)(a) of theBSCRA Act. 230 Accordingly, the Tribunal declines to make a building remedy order in relation to 'Roof structure item 8' in Mr Porter's report and it is dismissed.
Roof structure item 10: roof battens not uniform with timber battens 231 Mr Porter states in his February 2013 report that 'Roof battens are not uniform with metal battens fitted on one side of the roof and timber fitted to the Wellington St side. The metal battens have been mechanically nailed and not screwed down, the timber battens are also nailed down, no battens have been bugle bolted'. 232 Ms Jacob said that one side of the roof was higher than the other side because of the different materials used. 233 Mr Gallacher's response of 20 May 2013 (Hearing Booklet at page 60) was that the use of the two different materials for the roof battens arose from what was available in Northam at the time. At the hearing on 1 November 2013, Mr Gallacher said that structurally there was no difference, and aesthetically there was no problem because the battens are covered by the roof. Mr Gallacher said that a metal batten is screwed at the intersection, whereas a timber batten has to be finished on a rafter. Mr Gallacher referred the Tribunal to photograph 9 in Exhibit 2. 234 Mr Callaway stated that in his view the wooden battens should be joined over the rafters and that it is not best practice to do it in the way that Mr Gallacher has done it. Mr Callaway did not take the Tribunal to any BCA requirement that applied to this item. 235 There is a conflict in the evidence between Mr Callaway and Mr Gallacher in relation to the effect of the battens not being made from the same material. In the Tribunal's view, based on the limited evidence (Page 34)
before it, it is not satisfied that the fact that the battens are of different materials has any structural or aesthetic effect on Ms Jacob's home. 236 Based on all of the evidence before it, the Tribunal is not satisfied that the regulated building service listed as 'Roof structure item 10' in Mr Porter's report is faulty or unsatisfactory within the meaning of s 38(1)(a) of theBSCRA Act. 237 Accordingly, the Tribunal declines to make a building remedy order in relation to 'Roof structure item 10' in Mr Porter's report and it is dismissed.
Roof structure item 11: roof battens are of equal spacing 238 For the sake of clarity, on 1 November 2013, the Tribunal made a building remedy order by consent in relation to 'Roof structure item 11'.
Roof structure - item 12: metal fascia is not attached to each rafter 239 Mr Porter states in his February 2013 report that 'metal fascia has not been attached to each rafter and has started to fall away'. 240 Mr Gallacher's response of 20 May 2013 (Hearing Booklet at page 60) was that he needed scaffold to complete the fascia and that Ms Jacob, as the builder, had not provided the scaffold to her tradespeople. Mr Gallacher's evidence on 26 July 2013 was that Ms Jacob refused to supply the scaffold. He said that he had an 8 foot trestle; however, scaffold of 4 - 5 metres high was needed to complete this item of work. He said that it was usual for the builder, in this case Ms Jacob, to provide the scaffolding to the building site. Further, Mr Gallacher stated that he had been 'kicked off the job' before he was able to complete the work. 241 Mr Callaway's August 2013 report confirmed that 'Roof structure item 12' remained outstanding. 242 The Tribunal accepts, as does Mr Gallacher, that the metal fascia was not installed by him. However, the Tribunal also accepts Mr Gallacher's evidence as to why the metal fascia was not installed. In the Tribunal's view, this is an item relating to incomplete work, rather than faulty or unsatisfactory work. 243 Based on all of the evidence before it, the Tribunal is not satisfied that the regulated building service listed as 'Roof structure item 12' in Mr Porter's report is faulty or unsatisfactory within the meaning of s 38(1)(a) of theBSCRA Act. (Page 35)
244 Accordingly, the Tribunal declines to make a building remedy order in relation to 'Roof structure item 12' in Mr Porter's report and it is dismissed.
Metal roof 245 Mr Porter states in his February 2013 report that 'The metal roof is zincalume custom orb profile and is not complete with 4 sheets missing from both sides on one end'. 246 Mr Gallacher's response of 20 May 2013 (Hearing Booklet at page 62) was that the 'Tin roof could not be finished because the owner would not supply scaffold and there was still no power on site'. 247 At the hearing on 26 July 2013, Mr Gallacher agreed that the roof was incomplete. The photograph marked '6' in Exhibit 2 shows the roof has a few sheets of tin missing from it. Mr Gallacher's handwritten comment on photograph 6 in Exhibit 2 is that '… she refused me site entry … also she claims that she has paid someone else to finish tin cover …'. 248 Mr Callaway confirms in his August 2013 report (Hearing Booklet at page 97) that 'Yasmine employed another carpenter to install the missing roof sheets …'. 249 The Tribunal accepts that Mr Gallacher did not complete the roofing because he was ordered offsite by the builder, Ms Jacob. Further, the Tribunal accepts that the tin roof has now been completed by a third party. 250 In the Tribunal's view, this is an item relating to incomplete work, rather than faulty or unsatisfactory work. 251 Based on all of the evidence before it, the Tribunal is not satisfied that the regulated building service listed as 'Metal roof' in Mr Porter's report is faulty or unsatisfactory within the meaning of s 38(1)(a) of theBSCRA Act. 252 Accordingly, the Tribunal declines to make a building remedy order in relation to 'Metal roof' in Mr Porter's report and it is dismissed.
Metal roof item 1: no insulation 253 Mr Porter states in his February 2013 report that 'No insulation has been fitted as per approved drawings to the underside sheets'. 254 Mr Gallacher's copy of the plans (Exhibit 5) does refer to insulation to the underside of the roof sheeting, ceilings and walls. However, (Page 36)
Mr Gallacher's contract included only R70 insulation batts to the wall as set out in his quote (Hearing Booklet at page 7). Mr Gallacher's quote does not refer to insulation in any other areas of the home, apart from the walls. 255 The Tribunal finds that Mr Gallacher's contract with the ownerbuilder, Ms Jacob, does not include insulation to the underside sheets. Accordingly, Mr Gallacher is not required to supply or install insulation to that area of the home. 256 Based on all of the evidence before it, the Tribunal is not satisfied that the item listed as 'Metal roof item 1'in Mr Porter's report is part of the regulated building service provided by Mr Gallacher. 257 Accordingly, the Tribunal declines to make a building remedy order in relation to 'Metal roof item 1'in Mr Porter's report and it is dismissed.
Metal roof item 2: no gutters 258 Mr Porter states in his February 2013 report that 'No gutters have been fitted to either side of the roof'. 259 Mr Gallacher's response of 20 May 2013 (Hearing Booklet at page 62) was that the 'Tin roof could not be finished because the owner would not supply scaffold and there was still no power on site'. 260 The Tribunal accepts that Mr Gallacher did not fit the gutters to the home because he was not provided with any scaffolding to do so and because he was then ordered off site by the builder, Ms Jacob. 261 In the Tribunal's view, this is an item relating to incomplete work, rather than faulty or unsatisfactory work. 262 Based on all of the evidence before it, the Tribunal is not satisfied that the regulated building service listed as 'Metal roof item 2' in Mr Porter's report is faulty or unsatisfactory within the meaning of s 38(1)(a) of theBSCRA Act. 263 Accordingly, the Tribunal declines to make a building remedy order in relation to 'Metal roof item 2' in Mr Porter's report and it is dismissed.
Metal roof item 3: roof not screwed off 264 Mr Porter states in his February 2013 report that the 'roof where fitted is not screwed off'. (Page 37)
265 Mr Gallacher's response of 20 May 2013 (Hearing Booklet at page 62) was that the 'Tin roof could not be finished because the owner would not supply scaffold and there was still no power on site'. At the hearing on 26 July 2013, Mr Gallacher said that some of the bottoms of the roof had been screwed off and that he had achieved this by leaning over the roof. However, he said that he needed scaffolding in order to screw the roof off properly. 266 The Tribunal accepts that Mr Gallacher did not screw the roof off because he was not provided with any scaffolding to do so and because he was then ordered off site by the builder, Ms Jacob. 267 In the Tribunal's view, this is an item relating to incomplete work, rather than faulty or unsatisfactory work. 268 Based on all of the evidence before it, the Tribunal is not satisfied that the regulated building service listed as 'Metal roof item 3' in Mr Porter's report is faulty or unsatisfactory within the meaning of s 38(1)(a) of theBSCRA Act. 269 Accordingly, the Tribunal declines to make a building remedy order in relation to 'Metal roof item 3' in Mr Porter's report and it is dismissed.
External cladding 270 Mr Porter states in his February 2013 report that 'The external [Hardiplank] cladding has started … the fixing method is suspect with nails visible … with no wall bracing fitted … cladding should not have started …'. 271 Mr Gallacher's response of 20 May 2013 (Hearing Booklet at page 63) and at the hearing on 26 July 2013 was consistently to the effect that the Hardiplank cladding was put on as a sample at Ms Jacob's request. The contract was for Colorbond cladding (Hearing Booklet at page 7). Mr Gallacher said that the Hardiplank would cost Ms Jacob more than the Colorbond cladding. The change in cladding was the major issue which led to the contractual breakdown between the parties and Ms Jacob ordering Mr Gallacher off site on 6 December 2012. Based on all of the evidence before it, the Tribunal is not satisfied that the regulated building service listed as 'External cladding' in Mr Porter's report is faulty or unsatisfactory within the meaning of s 38(1) of the BSCRA Act. 272 Accordingly, the Tribunal declines to make a building remedy order in relation to 'External cladding' in Mr Porter's report and it is dismissed. (Page 38)
Matters not before the Tribunal 273 On several occasions during the hearing there was a conflict in the evidence between Ms Jacob and Mr Gallacher. These matters related to contractual matters rather than workmanship issues. The only matters for determination by the Tribunal relate to the items of alleged defective workmanship listed in Mr Porter's report and as confirmed by the Tribunal orders of 14 May 2013. For example, Mr Gallacher accepts that he has been paid $21,000 for the work done on Ms Jacob's home (Hearing Booklet at page 24). 274 However, Ms Jacob claims that she has paid $35,600 of the $44,000 total contract sum. Ms Jacob claims that the $35,600 is made up of the following receipts: 1) Hearing Booklet at page 9 total of $27,000 based on copies of three receipts from Mr Gallacher. 2) Hearing Booklet at page 10 - $4,000 based on a copy of a receipt from Mr Gallacher dated 22 November 2012. 3) Hearing Booklet at page 11 - $3,897 based on a copy of a receipt from Midalia Steel dated 2 October 2012 and issued in favour of 'Dale'. 4) Hearing Booklet at page 12 - $350 based on a copy of a receipt from Simon Van Den Ende dated 10 December 2012 and issued in favour of 'Yasmine Jacob' for welding. 5) Hearing Booklet at page 13 - $250 based on a copy of a receipt from Simon Van Den Ende dated 11 December 2012 and issued in favour of 'Yasmine Jacob' for welding. 6) Hearing Booklet at page 14 - $100 based on a copy of a receipt from the Farm Shop dated 24 October 2012 and issued in favour of a cash sale for fastest concrete. 275 The main point of contention between the parties in relation to the amount paid to date relates to a receipt (Hearing Booklet at page 9) which purports to be in the amount of $11,000. However, Mr Gallacher is adamant that he was paid only $1,000 not $11,000 and that an extra digit '1' has been added to the amount shown in the copy of the receipt at page 9 of the Hearing Booklet. The original of the '$11,000' receipt is not before the Tribunal. Based on the very limited evidence before the Tribunal, it does not accept that Ms Jacob has paid the amount of $11,000 (Page 39)
as claimed on the receipt at page 9 of the Hearing Booklet. The Tribunal accepts Mr Gallacher's clear and consistent evidence that he has been paid $21,000 for the work done on Ms Jacob's home not $35,600 as claimed by Ms Jacob. While the amount owed under the contract is not a matter which is properly before the Tribunal for determination, in the Tribunal's view, Ms Jacob's unsubstantiated claim of having paid $11,000 in one payment rather than $1,000 does affect her credibility in an adverse manner. The Tribunal does not accept Ms Jacob's claim in this regard and considers that the claim is of such magnitude that it reflects adversely on her character generally. 276 In addition Mr Gallacher claims that he is owed the following amounts by Ms Jacob (Hearing Booklet at page 24): 277 The above claims are set out by Mr Gallacher in his email to the Commission of 19 February 2013 (Hearing Booklet at page 24). 278 The Tribunal makes no finding in relation to the amounts claimed by Mr Gallacher. This is because Mr Gallacher's claims under the contract are not matters which are properly before the Tribunal. The application before this Tribunal is Ms Jacob's complaint in relation to certain items of faulty or unsatisfactory workmanship. Accordingly, the Tribunal does not have jurisdiction to determine this issue. 279 Similarly, the issue of Mr Gallacher building a stick roof rather than the truss roof as specified in the drawings (Exhibit 5) is a contractual matter which is not properly before this Tribunal. Accordingly, the Tribunal does not have jurisdiction to determine this issue. 280 Further, Mr Callaway's August 2013 report also refers to the use of 'bright nails' throughout the structure. Mr Callaway states that, 'Galvanised nails should have been used'. This item of allegedly unsatisfactory workmanship was not part of Ms Jacob's original complaint and accordingly it is not properly before the Tribunal. Therefore, the Tribunal does not have the jurisdiction to determine this issue. |