JOHN and EVANS - [2022] WASAT 47

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   JOHN and EVANS [2022] WASAT 47
MEMBER:   MS N OLDFIELD, MEMBER
MR D M FRASER, SESSIONAL MEMBER

HEARD:   8 MARCH 2022
DELIVERED          :   30 MAY 2022
FILE NO/S:   CC 1709 of 2021
BETWEEN:   DAVID JOHN
Applicant
AND
DAVID EVANS
VICKY EVANS
Respondents

Catchwords:

Home Building Contracts Act 1991 (WA) - Breach of s 10(1) - Notice of termination - Adjustment of rights - Turns on own facts
Home building work contract (HBWC) complaint - Contract terms - Whether concrete slab in accordance with contract plans - Finished floor level - Turns on own facts
Building service complaint - Whether building service not carried out in proper and proficient manner or is faulty or unsatisfactory - Concrete slab and retaining wall - Turns on own facts

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5, s 5(1), s 5(2), s 36, s 38, s 41, s 43
Home Building Contracts Act 1991 (WA), s 3(1), s 10, s 10(1), s 10(4), s 17, s 19, s 20
State Administrative Tribunal Act 2004 (WA), s 32

Result:

Orders made

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondents	:	In Person

Solicitors:

Applicant	:	N/A
Respondents	:	N/A

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

This matter concerns a complaint pursuant to the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act).
In November 2020, David John (the applicant) and his wife, Caroline John (Ms John) (engaged David Evans and Vicky Evans (the respondents) to construct a new house. The applicant and Ms John became concerned regarding the construction of the concrete pad and retaining walls and on 25 June 2021 gave notice terminating the parties' contract alleging the respondents had required advance payments in breach of s 10 and s 19 of the Home Building Contracts Act 1991 (WA) (HBC Act). On 5 July 2021 the respondents terminated the contract on the basis of alleged breaches of contract by the applicant and Ms John.
On 27 July 2021 the applicant lodged a complaint with the Building Commissioner claiming contravention of the HBC Act, breach of contract and that the respondents' building service were not carried out in a proper and proficient manner or were faulty or unsatisfactory.
The Building and Energy Inspectorate investigated the complaints. On 21 October 2021 the Building Commissioner determined that due to the complexity of the alleged circumstances and the differences between the parties' accounts, it was appropriate to refer the matter to the Tribunal so that the parties could present their cases and evidence at a hearing.

Issues for determination

The issues for determination by the Tribunal are:
a)Did the respondents obtain advance payments in breach of the HBC Act? If so, should the respondents repay any amount to the applicant?
b)Was the construction of the concrete pad carried out in breach of the parties' contract, or carried out in a manner which was not proper or proficient or in a manner which was faulty or unsatisfactory?
c)Was the construction of the retaining wall carried out in breach of the parties' contract, or carried out in a manner which was not proper or proficient or in a manner which was faulty or unsatisfactory?
d)If the answers to b) or c) above are 'yes', whether there should be an order for remedial works or the payment of the cost of carrying out remedial works and if the latter, the amount to be awarded.

Tribunal proceedings

A final hearing of this matter took place on 8 March 2022. Various documents had been lodged with or generated by the Tribunal, all of which were compiled into a hearing book provided to the parties.
The hearing was remarkable for the lack of expert evidence and the parties largely relied upon their personal opinions as evidence for their claims. The applicant himself gave evidence and called Ms John and son-in-law David Ballantyne as witnesses. The respondents had informed the Tribunal they intended to call architect Hermann Fehr and earthworks contractor Kane Chrimes as witnesses but on the day elected to call only Mr Evans as a witness. The second named respondent Vicky Evans did not attend the hearing.
It is noted on 30 November 2021 there was a directions hearing at which Senior Member Aitken stated that if the matter were to proceed to a final hearing, the applicant would need evidence to substantiate his monetary claims, both parties would need to call expert evidence and arrange for those experts to be called as witnesses and enquired as to the parties' intentions to lodge any documents in addition to those provided to the Building Commissioner. Accordingly, there were orders requiring the parties to lodge all the documents upon which they intended to rely at a final hearing, including expert reports, quotations or other documents relevant to the costings of the complaint items to be determined by the Tribunal. The parties were also ordered to provide a list of the persons they intended to call as witnesses to give evidence and the dates in February, March and April 2022 on which the parties and their witnesses would be unavailable to attend a hearing.
Various documents were duly filed by both parties and at a directions hearing on 25 January 2022 the parties agreed the hearing would proceed for one day on 8 March 2022 by videoconference using Microsoft Teams videoconferencing software (Teams). At no time until the hearing had commenced did the respondents give any indication their witnesses could not attend on 8 March 2022 or could not attend via Teams. No adjournment was sought prior to or on the day of the hearing by the respondents.
The Tribunal considers any deficiencies in the parties' presentations of their cases did not arise from any failure of the Tribunal procedures,[1] but from the parties' own decisions.
[1] State Administrative Tribunal Act 2004 (WA), s 32.
The task of the Tribunal is to make findings of fact and law based upon the evidence presented by the parties. The absence of witnesses to important events and the failure of the parties to call any expert witnesses has made the process of making findings of fact and accepting or rejecting the contentions of the parties more difficult.

Material facts

On the basis of the parties' evidence, the Tribunal makes the following findings of facts. Except where noted the facts are uncontested and all figures include GST.
The applicant and Ms John own the property located at 86 Scotsdale Road, Denmark, Western Australia. The respondents operate as a partnership the business known as The Shack Building Company.
The applicant and Ms John together with Mr Evans on behalf of the respondents signed a HIA pro-forma contract entitled WA HBCA Lump Sum Building Contract[2] which was dated 27 November 2020. The contract between the parties (Contract) comprised both the signed pro-forma document and drawings numbered 1-7 prepared by Hermann Fehr (Contract plans).[3] Engineering plans[4] were prepared by MA Lalli & Associates on instructions from the applicant and Ms John and provided to the respondents in January 2021.
[2] Hearing Book (HB) pages 54-83.
[3] HB pages 149-155.
[4] HB pages 32-42.
The works were described at item 3 of the Schedule of Particulars[5] of the Contract as being 'deconstruct existing residence and construct new residence as per plan supplied by H. Fehr' and the site address 86 Scotsdale Road, Denmark. The total contract price was described as $395,383 at items 6 and 7 of the Schedule of Particulars.[6]
[5] HB page 58.
[6] HB page 59.
By the end of January 2021, the applicant and Ms John had arranged the deconstruction of the existing house and its removal from site.
Following the site works, installation of retaining walls and compaction of a sand pad between February and April 2021, one part of the concrete slab for the house was poured on or about 27 April 2021 and the second part of the concrete slab was poured on or about 6 May 2021.
By notice dated 25 June 2021[7] the applicant and Ms John terminated the Contract pursuant to s 10 and s 19 of the HBC Act. By letter to the applicant and Ms John dated 5 July 2021[8] the respondents terminated the Contract pursuant to alleged breaches by the applicant and Ms John relating to allegations that they performed 'unauthorised works' at the property, verbally requested the respondents to cease work and failed to pay an invoice of the respondents by the due date.
[7] HB pages 165-166.
[8] HB pages 147-148.
On 21 July 2021 the applicant lodged his complaint with the Building Commissioner. There were three items of complaint:
a)breach of s 10 of the HBC Act comprised item 1;
b)Item 2 comprised complaints regarding the concrete slab; and
c)Item 3 related to the retaining wall.

Legislative framework

HBC Act

The HBC Act provides limits upon the advance payments a builder may seek from its client. The relevant parts of s 10 provide as follows:
(1)A builder must not enter into a contract which provides that the builder is entitled to demand or receive from the owner any payment -
(a)before the commencement of the home building work to which the contract relates unless the payment is -
(i)a deposit of not more than 6.5% of the total amount payable to the builder under the contract for the home building work; or
(ii)of a prescribed kind;
(b)after the commencement of the home building work unless the payment is -
(i)a genuine progress payment for work already performed or materials or services already supplied; or
(ii)is of a prescribed kind.
Penalty:$10 000.
…
(3)Where -
(a)a contract sets out a schedule of payments due at specified stages of the home building work; and
(b)a payment is demanded or required in accordance with that schedule, the payment is to be taken to be a genuine progress payment for the purposes of subsection (1)(b)(i) until the contrary is shown.
(4)If a builder enters into a contract in breach of subsection (1), the contract may be terminated by the owner in accordance with section 19.
(5)A builder under a contract must not demand or receive from the owner any payment after the commencement of the home building work unless the payment is a genuine progress payment for the purposes of subsection (1)(b)(i) or of a prescribed kind under subsection (1)(b)(ii).
Penalty:$10 000.
The manner in which the contract may be terminated is stipulated in s 19:
(1)Where under section 4(5), 10(4) or 14(3) or Schedule 1 a party to a contract may terminate the contract the party may give notice of termination to the other party and the contract is terminated at the time when the notice is given.
(2)A notice given by a party under subsection (1) must be in writing signed by the party and must be given to the other party before the completion of the home building work under the contract[.]
Where a contract breaches s 10 and a notice of termination is issued pursuant to s 19, the HBC Act provides for an adjustment of the parties' rights under s 20:
If a contract is terminated under section 4(5), 10(4) or 14(3) or Schedule 1, the owner or builder may make a complaint under the Building Services (Complaint Resolution and Administration) Act 2011 section 5(2) claiming that the owner or builder is entitled to -
(a)the return or repayment of the whole or part of any consideration, or the value of any consideration, given by the owner under or in relation to the contract; or
(b)payment to the builder in respect of -
(i)any materials supplied by the builder; or
(ii)any home building work or other services performed by the builder; or
(iii)costs, including overhead expenses and loss of profit, incurred by the builder, under or in relation to the contract.
Terminology used in the HBC Act is defined in s 3(1), including the following:
dwelling means a building occupied or intended for occupation solely or mainly as a place of residence;
home building work means the whole or part of the work of -
(a)constructing or re-constructing a dwelling including an existing dwelling and/or strata/community title dwelling; or
…
(d)constructing or carrying out any associated work in connection with -
(i)any work referred to in paragraph (a) or (b); or
(ii)an existing dwelling, including a strata/community title dwelling;
owner in relation to a contract means the person for whom or which home building work is to be performed under the contract;
perform in relation to home building work includes -
(a) causing the work to be performed; and
(b) organizing or arranging for the performance of the work[.]
Relevantly to items 2 and 3 of the applicant's complaint, the HBC Act also provides for remedies in the event of an alleged breach of contract in s 17:
If an owner or builder under a contract claims that -
(a)there has been a breach of -
(i)the contract, not being a breach in respect of which a building remedy order may be made under the Building Services (Complaint Resolution and Administration) Act 2011; or
(ii)a provision in Part 2; or
(b)the owner or builder is entitled to compensation under Schedule 1,
then, subject to the Building Services (Complaint Resolution and Administration) Act 2011, the owner or builder may make a complaint under section 5(2) of that Act.

BSCRA Act

The entitlement to make a complaint to the Building Commissioner is contained in s 5 of the BSCRA Act:
(1)Subject to the 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.
(2)An owner or builder under a home building work contract may make a complaint to the Building Commissioner about a matter referred to in the Home Building Contracts Act 1991 section 17 or 20 or Schedule 1 clause 5[.]
Section 3 defines the complaint described in s 5(1) as a 'building service complaint' and the complaint described in s 5(2) as a 'HBWC complaint'. 'HBWC' is an abbreviation of home building work contract.
The manner in which the Tribunal may handle a building service complaint referred by the Building Commissioner is contained in s 38 of the BSCRA Act:
(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.
(2)The State Administrative Tribunal cannot make a building remedy order requiring a respondent who is not a registered building services provider -
(a)to do any work of a value estimated by the Tribunal to exceed the prescribed amount; or
(b)to pay any amount exceeding the prescribed amount, unless -
(c)the order is made in respect of a building service that has been carried out by the respondent in contravention of the Building Services (Registration) Act 2011 section 7; or
(d)the respondent consents to the order being made.
(3)Unless a greater amount is prescribed by the regulations, in subsection (2) the prescribed amount is $500 000[.]
The nature of a building remedy order is contained in s 36 of the BSCRA Act:
(1)A building remedy order consists of one of the following -
(a)an order that a person who carried out a regulated building service remedy the building service as specified in the order;
(b)an order that a person who carried out a regulated building service pay to an aggrieved person such costs of remedying the building service as the Building Commissioner or State Administrative Tribunal, as the case requires, considers reasonable and specifies in the order;
(c)an order that a person who carried out a regulated building service pay to an aggrieved person a sum of money specified in the order to compensate the aggrieved person for the failure to carry out the building service in a proper and proficient manner or for faulty or unsatisfactory building work.
(2)A building remedy order may require that the order be complied with within a time specified in the order.
(3)A person who is not a building service contractor may arrange for a building service to be carried out for the purpose of compliance by that person with a building remedy order referred to in subsection (1)(a) despite the Building Services (Registration) Act 2011 section 7.
The manner in which the Tribunal may handle a HBWC complaint referred by the Building Commissioner is contained in s 43:
(1)If the Building Commissioner refers a HBWC complaint to the State Administrative Tribunal, the Tribunal may -
(a)if satisfied that the order is justified, make a HBWC remedy order; or
(b)otherwise, decline to make the order.
(2)The State Administrative Tribunal cannot make a HBWC remedy order requiring a party -
(a)to do work of a value estimated by the Tribunal to exceed the prescribed amount; or
(b)to pay an amount exceeding the prescribed amount, unless the party consents to the order being made.
(3)Unless a greater amount is prescribed by the regulations, in subsection (2) the prescribed amount is $500 000[.]
The nature of a HBWC remedy order is contained in s 41:
(1)In this section –
specified means specified in the HBWC order.
(2)A HBWC remedy order in respect of a complaint by an owner or builder under a home building work contract referred to in the Home Building Contracts Act 1991 section 17 (other than a complaint about a breach of section 15 of that Act) consists of one or more of the following –
(a)an order -
(i)restraining any specified action in breach of the contract or of a provision in the Home Building Contracts Act 1991 Part 2;
(ii)requiring any specified work to be done in the performance of the contract;
(iii)requiring any specified work to be done to ensure compliance with a provision of the Home Building Contracts Act 1991 Part 2;
(iv)requiring any specified work to be done to remedy a breach of the contract or of a provision of the Home Building Contracts Act 1991 Part 2;
(b)an order that a person pay a specified amount payable under the contract;
(c)an order declaring that a specified amount is not payable to a person under the contract and, if already paid, an order that the builder or owner repay that amount;
(d)an order that a person pay specified compensation for loss or damage -
(i)caused by any breach of the contract or of a provision of the Home Building Contracts Act 1991 Part 2; or
(ii) referred to in the Home Building Contracts Act 1991 Schedule 1;
(e)an order declaring that a specified amount of money claimed or money claimed for specified work is not payable by a person.
(3)A HBWC remedy order in respect of a complaint by an owner referred to in the Home Building Contracts Act 1991 section 17 about a breach of section 15 of that Act consists of one or more of the following -
(a)an order declaring the contract or any provision of the contract against which relief is sought to be void from the beginning;
(b)an order modifying the provisions of the contract in such manner as the State Administrative Tribunal considers just;
(c)an order providing for the repayment to the owner of any specified amount paid by the owner under a contract or a provision that has been declared void or modified as referred to in paragraph (a) or (b).
(4)A HBWC remedy order in respect of a complaint by an owner or builder under a home building work contract referred to in the Home Building Contracts Act 1991 section 20 consists of –
(a)an order providing for the return or repayment of the whole or part of any specified consideration, or the specified value of any consideration, given by the owner under or in relation to the contract; or
(b)an order providing for specified payment to the builder in respect of -
(i)any materials supplied by the builder; or
(ii)any home building work or other services performed by the builder; or
(iii)costs, including overhead expenses and loss of profit, incurred by the builder, under or in relation to the contract.
(5)A HBWC remedy order in respect of a complaint by an owner under a home building work contract about a price increase referred to in the Home Building Contracts Act 1991 Schedule 1 clause 5 consists of an order confirming, varying or disallowing the amount of the price increase.
(6)If a HBWC remedy order referred to in subsection (5) is made in respect of a complaint by an owner under a home building work contract, the contract has effect in accordance with the HBWC remedy order.
(7)A HBWC remedy order may require that the order be complied with within a time specified in the order.

'Regulated building service' is defined in s 3 to mean:
… any of the following -
(a)a building service carried out by a registered building service provider or an approved owner-builder;
(b)home building work that is -
(i)carried out by a person for another person under a home building work contract or other contract or arrangement for gain or reward; and
(ii)not carried out for a person who is in turn obliged to perform the work under another contract;
(c)any other service or work prescribed for the purposes of this definition[.]

Consideration of the parties' contentions

It is most convenient to deal with the evidence, the parties' contentions and the conclusions of the Tribunal in the context of each complaint item in turn.

Item 1 - advance payments

Item 1[9] complains the respondents breached s 10(1) of the HBC Act in seeking and receiving payments in excess of the permitted 6.5% deposit and which were not genuine progress payments for work performed or materials supplied.
[9] HB pages 12 and 258-259.
Section 20 of the HBC Act provides that where a contract is terminated pursuant to s 10(4) the owner or builder may make a complaint seeking an adjustment being either repayment to the owner or payment to the builder in respect of materials supplied, work performed and costs incurred. In item 1 of the building complaint, the applicant seeks a refund of all monies paid to the respondents, save for $2,296.75 in relation to a portion of the site works performed by subcontractors.
The invoices issued by the respondents comprised the following:[10]
a)Invoice DC-01 dated 26 November 2020 comprised a deposit of $25,700 and pre-order of materials of $24,300.
b)Invoice DC-02 dated 9 February 2021 in the sum of $25,000 was described as 'further forward purchase of materials'.
c)Invoice DC-03 dated 10 February 2021 in the sum of $35,000 was described as 'sub-floor, roof and flooring materials'.
d)Invoice DC-04 dated 27 April 2021 contained a credit in the sum of $110,000 which is described as 'deposit, pre-order and commencement invoices paid'. Line 2 contained a charge of $144,307 for 'deposit, materials, commencement and slab stage progress payments cumulative amount as per contract' and Line 3 contained a charge of $10,000 which is described as 'retaining works to date - part payment of quote'. After the credit of $110,000 the balance owing on the invoice is stated as $44,307.
e)Invoice DC-05 dated 12 May 2021 comprised three invoices from DMD Earthmoving and one invoice from Denmark Liquid Salvage totalling $15,822.90.
f)Invoice CT-01 dated 28 June 2021 contained various itemised charges. After the allocation of $110,000 credit, the amount of the invoice was $8,849.
[10] HB pages 21-30.
The parties agreed the applicant paid invoices DC-01, DC-02, DC03 and DC-05 being a total of $125,822.90. Invoices DC-04 and CT-01 have not been paid. In his evidence Mr Evans conceded none of the materials, pre-order charges for which are contained in invoices DC-01, DC-02 and DC-03, were delivered to site and after the parties' terminations of the Contract were returned to the supplier.
The Contract provides a fixed price of $359,439, including a deposit and progress payments for consecutive stages described as 'commencement', 'slab' and 'frames'. Normally a builder's home building contract would include site works as a provisional sum rather than as part of the fixed sum. Site works are notorious for unforeseen factors significantly increasing the estimated cost. Item 10 of the Schedule of Particulars[11] stated that provisional sums and prime cost items were contained in the addenda to the specifications. No such document was contained in the Building Commissioner's file provided to the Tribunal nor was it later lodged by either party.
[11] HB page 61.
In his evidence Mr Evans stated he believed a quote regarding site works had been included as an addendum to the Contract but appeared unable to locate that document in the hearing book and provided no other information. In his evidence the applicant denied the existence of any addendum to the Contract. However the Tribunal observes at page 91 of the hearing book an email which records discussions between the parties, including a discussion of the extent to which costs of items including tiling, plumbing and floor coverings were included in provisional sums. Both Mr Ballantyne and the Ms John confirmed this document to be an accurate record of the parties' discussions at that time.
As noted earlier, the applicant paid invoice DC-05 which comprised the invoices of the sub-contractors for the site works. In the complaint to the Building Commissioner, the applicant made no protest regarding the validity of DC-05. The grounds for seeking reimbursement of that expense is the allegation that the concrete slab is so unsatisfactory it must be removed and therefore it is argued the applicant has received no benefit from the site works. In his evidence Mr Ballantyne confirmed invoice DC-05 was in addition to the fixed price in the Contract and the applicant had no dispute with invoice DC05 save for the height of the concrete slab.
The allegations regarding the construction of the concrete slab will be considered in the context of item 2 of the complaint. In the context of item 1 of the complaint the Tribunal finds the applicant has not established sufficient grounds for reimbursement of DC-05 pursuant to s 20 of the HBC Act.
Although neither party made an application to the Building Commissioner in relation to invoice CT-01, the entitlement of the applicant for a refund of monies which were unrelated to work performed or materials supplied cannot be fairly assessed by omitting a consideration of the claims contained in invoice CT-01.
In his evidence, Mr Evans stated invoice CT-01 was not in the form of a claim for a progress payment because the works had been stopped early and the invoice combined work done in relation to the fixed price Contact and the additional retaining work the subject of the quote for the same dated 11 February 2021.[12] There appears to be some duplication between invoice DC-04 and CT-01, both of which are unpaid:
a)the applicant's payment of $110,000 is credited against both invoices to reduce the total sum due and payable;
b)invoice DC-04 includes a $10,000 charge regarding the retaining wall when the total quoted price[13] was $12,220; and
c)Mr Evans stated the carpentry work, concrete and materials supplied by Thorntons in invoice CT-01 related to both the concrete slab and the retaining wall even though invoice DC-04 invoiced both the commencement and concrete slab stages.
[12] HB page 280.
[13] HB page 280.
The parties agreed one section of the retaining wall remains incomplete. Mr Evans gave evidence that all materials had been supplied to the site and there was only a labour component left which he estimated as being about 10% of the total quoted price, which would be $1,222. This was not disputed by the applicant and accordingly the Tribunal accepts Mr Evans' evidence on this point.
Invoice CT-01 contains a charge for 'Glazing Ordered'. Mr Evans' evidence was that he paid the glazing order in full to preserve his commercial relationship with the supplier. He conceded the windows were not delivered to the applicant.
In terms of the correct apportionment according to s 20 of the HBC Act, the Tribunal assesses the respondents are entitled to the progress payment for commencement ($50,000), progress payment for the concrete slab ($44,307) and 90% of the quoted price for the retaining wall ($10,998) but in the absence of evidence of additional work subsequent to completion of the concrete slab or the supply of materials to the applicant, no payment is due regarding other parts of invoices DC-04 and CT-01.
On the basis of the foregoing, in relation to item 1 of the applicant's complaint to the Building Commissioner and s 10, s 19 and s 20 of the HBC Act, the Tribunal finds:
a)The respondents are entitled to be paid the deposit, progress payments for the commencement and concrete slab and 90% of the quoted price for the retaining wall, being a total figure of $131,005.
b)The respondents are not entitled to retain any monies in relation to the pre-ordering of materials not delivered to the applicant.
c)The applicant's evidence is that he paid a total of $125,822.90 to the respondents. Given this sum is less than the sum owed to the respondents, there is no basis for the respondents to make a refund to the applicant pursuant to s 20 of the HBC Act.
d)The Tribunal has not received from the Building Commissioner the referral of a complaint by the respondents seeking payment of invoices owed. Therefore the Tribunal has no jurisdiction to make any order regarding monies which may be owed to the respondents by the applicant.
Accordingly, the application in relation to item 1 of the complaint is not successful.

Item 2 - the concrete slab

At item 2[14] of the complaint, the applicant claims for the reasons contained in paras 2(a)-(h) the respondents failed to complete the concrete slab in a proper and workmanlike manner. Furthermore, the applicant alleges the concrete slab has been completed in a manner which breaches the parties' Contract in that it is not in accordance with the plans and specifications and not in compliance with all relevant statutes, regulations and local laws. The applicant claims that due to these faults, he will 'need to demolish the concrete slab and effectively redo the earthworks performed by the Builder to date'.[15]

Item 2(a)- finished floor level (FFL)

[14] HB pages 13-14 and 259-262.

[15] HB page 262.

Item 2(a)[16] alleges the concrete slab has been constructed with a FFL approximately 1.13 metres above the height stipulated in the Contract plans and on which the Shire of Denmark's building permit was based. The applicant stated that this fault is so fundamental there is no option but to remove the concrete slab and retaining wall and to start again. The applicant seeks:
a)refund of all monies paid to the respondents, save for $2,296.75 in relation to a portion of the site works performed by sub-contractors; and
b)payment of the quoted cost for removing the concrete slab and retaining wall, being $9,240.00.[17]
[16] HB pages 13 and 260.
[17] HB pages 194-195
The evidence which the applicant submitted in support of this contention comprised the:
a)Contract plans;
b)a letter from the Shire of Denmark[18] dated 16 June 2021;
c)a letter from surveyor Andrew LeFort of Harley Dykstra[19] dated 25 June 2021; and
d)statements by the applicant and Ms John that the current position of the concrete slab will result in the balcony being up to 3 metres above ground level which is greater than allowed in the plans and would require re-engineering of the posts supporting the house and balcony, would be too high in comparison to neighbouring properties and too high to afford a view of the river.
[18] HB pages 92-93
[19] HB pages 84-85.
In his evidence Mr Evans stated in response:
a)the floor level in the Contract plans was an estimate only, intended to be settled after the demolition and removal of the pre-existing house;
b)the applicant verbally agreed upon a higher floor level at the site in a discussion between the applicant, Jack Evans and Kane Chrimes; and
c)it is not possible for the concrete slab to be 1.13 metres lower unless the ground level was lowered by digging.

The Contract plans

The Contract plans prepared by Mr Fehr were lodged with the Tribunal on several occasions and are reproduced several times in the hearing book, including at pages 149-155. The plans at pages 149, 150 and 155 contain the notation 'FFL = 000' above 'RL 47.50'. The parties are agreed this means the top surface of the concrete slab measures 47.5 metres relative to the relevant data point.
Various floor and ground levels are contained in a plan at page 150 of the hearing book. In that plan it appears a simplified line drawing of the new house has been superimposed over an old survey which notes the location of the pre-existing house and a shed, both of which were removed prior to the respondents commencing work. It states the levels of the floor and carport of the pre-existing house were 47.90 metres, the deck of the pre-existing house was at 48.69 metres and the shed was 47.05 metres.
Various measurements can be seen within the outline of the proposed new house, highest at the top left-hand side of the plan closest to the road and decreasing both across the width of the block and away from the road towards the river. There is an arrow from the words 'proposed residence' to a space between measurements 47.55 metres and a measurement which is obscured but appears to be 47.42 metres or 47.43 metres or 47.48 metres. The point of the arrow is not in the centre of the new house but is offset to the left.
There is no evidence as to when the measurements contained in this plan were taken. There is no evidence these measurements were accurate at the time of the building works undertaken by the respondents. Mr Evans gave evidence he was not aware of any survey being taken of the ground levels after the removal of the pre-existing structures. Mr Evans also gave evidence that he had advised the applicant against renovation of the pre-existing house because the extent of subsidence and cracking to the pre-existing house meant renovations would be too costly. This may indicate ground levels had altered, but even if that were the case, there is no evidence of the manner in which the ground levels had altered or by how much.
At page 276 of the hearing book is a reproduction of an email from Mr Fehr to the applicant and the respondents dated 3 August 2020. That email reads:
Hi David and Caroline, please check with the shire planer[sic] in reg. to road and side setback and if BAL is required for your block
For David the builder please check if our m2 and layout is ok with funds available for building, all bedrooms and lounge with raked ceilings
FFL same as existing carport, plate height 2400 to 3000 lounge side walls, main roof 26 degrees pitch side roofs 6 degrees
Trusses for carport, centre beam and rafters in lounge, maybe back of the house on a slab in connection with carport slab, level entry front on stumps
regards
Hermann
Attached to that email were plans prepared by Mr Fehr:
a)entitled 'Site Plan 1:300 Proposed Residence' on which a line drawing of a house is superimposed over a contour plan, the existing shed and driveways highlighted;
b)entitled 'Site Plan 1:500 Existing Buildings' on which a line drawing of a house appears superimposed over a contour plan but the existing house is more visible and ground level measurements are also evident. Inside the outline of the new house are the words 'House Floor level RL=48.90'; and
c)entitled 'Floor Plan 1:100 Living Area' which as described is a floor plan of areas including bedrooms, kitchen and lounge, in a different configuration to the plan at page 150 of the hearing book.
By email on the afternoon of Friday 4 March the applicant sent an email to the Tribunal at [email protected] requesting an email from Laura Delbene of the Shire of Denmark be included in the hearing book. Due to the volume of correspondence sent to that email account, the applicant's email was not processed in time for the final hearing and was not available to the Tribunal members until after the conclusion of that hearing. The email from Ms Delbene dated 25 February 2022 contained comments regarding the comparisons made by the Shire of Denmark of the height of the concrete slab as compared to the plans lodged as part of the application for a building permit. The email from the applicant was not copied to the respondents and the respondents had no opportunity to read the document during the hearing. Ms Delbene was not called as a witness and there was no opportunity to question her.
On 30 November 2021 the Tribunal ordered the applicant to file with the Tribunal and give to the respondents all documents on which he intended to rely. Further, the Tribunal's website and rules clearly state electronic evidence should be delivered to the Tribunal at least two days prior to the hearing date. The applicant in his email to the Tribunal stated, 'I understand this is a late stage to have evidence added, however I have only just recently received this'. However, given Ms Delbene's email is dated 25 February 2022 we see no reason why this could not have been lodged with the Tribunal prior to the afternoon of 4 March and a copy sent to the respondents. In the circumstances this document is not accepted as evidence.
On the day of the final hearing, during the lunch break, the respondents sent by email to the Tribunal and copied to the applicant a letter which purported to be from Mr Fehr. The letter was undated and unsigned. The letter purports to provide an opinion by Mr Fehr regarding his plans and the level of the concrete slab. The letter does not indicate on what basis the writer evaluates the position and level of the concrete slab. The applicant was not provided prior notice of this document, nor was he given the opportunity to ask Mr Fehr any questions. In the circumstances, the Tribunal cannot accept this document as evidence.

The site meeting

The parties are agreed a meeting took place on the site at which levels of the concrete slab were discussed.
Mr Evans gave evidence as follows:
a)A meeting took place on the site, initially between Kane Chrimes for the contractor engaged to do the site works and the applicant. Later Jack Evans for the respondents joined the discussion.
b)The site meeting took place in early February 2021 after deconstruction of the pre-existing house.
c)The persons present at the meeting discussed how to achieve good drainage for the new house, including angling the driveways so that they drained from rather than to the house.
d)Drainage as discussed at that site meeting was the 'underpinning driver' for the final positioning of the sand pad and concrete slab.
e)It was at that site meeting the present height of the concrete slab was agreed with the applicant.
f)The agreed concrete slab height was referenced by Mr Chrimes to the position of a tree stump on the northern boundary and a screw was also put into one of the timber retaining walls on the western side.
g)Following that site meeting Jack Evans established profiles, discussed with the applicant building a retaining wall to address the issue of sand coming loose across the driveway and sent the applicant a quote for the retaining wall which was accepted.
Presumably Mr Evans' understanding of that conversation relies upon reports to him by Jack Evans or Mr Chrimes but given neither were called as witnesses, limited weight can be placed upon Mr Evans' evidence as to the content of discussions which took place in his absence.
The applicant's evidence of the discussions was:
a)In early February 2021 Jack Evans came to the site to set out levels. Jack Evans told the applicant there would be excessive sand across the driveway if they built according to the plans and suggested a retaining wall to stop the sand. The applicant verbally agreed with the proposal because he felt there was no alternative, and they could not have sand coming across the driveway.
b)Jack Evans sent him a quote to which the applicant gave verbal approval.
c)The applicant did not realise the sand pad would be so high and he now thinks that is why sand was expected to go onto the driveway.
d)When the applicant returned from a work trip, earth works had been carried out and the footings poured for a retaining wall. The bricklayer was on site and the block work was near completion.
e)There was a meeting on site between Mr Evans, Jack Evans, Mr Chrimes and himself. This was the first time the applicant had met Mr Chrimes.
f)He believed this meeting took place in early March 2021 because the retaining wall was completed on about 23 February 2021.
g)At that meeting Mr Evans told the applicant, 'they had to make it one block higher' to take the drainage away from the house. They discussed the earth had to be dropped away from the house and the driveway had to be sloped away from the house.
h)In his evidence the applicant explained 'one block' meant one cement block brick which is about 200 millimetres high. Despite questioning, the applicant did not explain whether 'it' referred to the sand pad, the concrete slab on top of the sand pad or something else. However, he believed the conversation meant the FFL should have been 200 millimetres higher than as provided in the Contract plans.
i)The applicant did not question the advice, he trusted 'they knew what they were doing'.
j)He was sure there had been no proposal to raise the final floor level of the concrete slab by over a metre.

On the day of the hearing, during the lunch break, the respondents sent an email to the Tribunal which attached a further email Mr Evans stated was from Mr Chrimes. However, when opened, that email appeared to have been sent by Mr Evans to Mr Evans on the day of the hearing and contains no other details of the author. The contents of the email purports to comment on the matters discussed at the site meeting. Even were it accepted the email was from Mr Chrimes, the applicant was not provided prior notice of this document, nor was he given the opportunity to ask Mr Chrimes questions. In the circumstances, the Tribunal cannot accept this document as evidence.

Shire of Denmark and surveyor correspondence

The applicant engaged Harley Dykstra Pty Ltd to measure the level of the concrete slab. In a letter dated 25 June 2021[20] Mr LeFort states:
Following your instructions, I have established levels on the finished concrete house slab at the above property in Scotsdale Road.
Please note that the original Feature Survey of 24/10.2013 used a datum nail in the bitumen path with an assumed RL = 50.00m. This datum nail has now gone due to earthworks along Scotsdale Road and the bitumen path is at a different level. I have compared various levels from the original 2013 survey and estimated that the new height at the Datum point is 50.24m.
Using this height as the new datum I have determined that the slab heights are as follows with the proviso that these levels are +/- 25mm due to the above estimation.
Slab 1 - 48.58m
Slab 2 - 48.63m
[20] HB pages 84-85.
Mr LeFort's letter does not detail his qualifications, training and experience and does not disclose the instructions on which his letter is based nor whether he personally inspected the site or relied upon undisclosed documents. Furthermore, the letter fails to make clear whether the survey on which he relies is the same document as that which appears in the Contract plans and does not disclose the basis upon which he has calculated the new datum point. The applicant did not call Mr LeFort as a witness and the respondents lost the opportunity to cross-examine him. The weight the Tribunal can give to Mr LeFort's letter must be limited as a consequence of these concerns.
The applicant further provided in support of his contentions, a copy of a letter from Graham Blackmore of the Shire of Denmark to Mr Evans dated 16 June 2021.[21] Mr Blackmore stated:
A site inspection at the above address by myself on 1 June 2021 in relation to Building Permit 9014 revealed that work had been undertaken which is not as per the approved plans
This work included lifting of the FFL of the house (approximately 900mm) higher than that indicated on the approved plans.
As a result the following has occurred:
•The use of concrete blocks to lift the level of the slab which is not as per the approved plans and has not been certified by the certifying structural engineer.
•Lifting of the slab has necessitated the installation of a timber sleeper retaining wall adjacent to the north-eastern boundary which is not as per the approved plans. As the location of the side boundary is difficult to ascertain it is not possible to confirm where the retaining wall is in relation to the side boundary.
[21] HB pages 92-93.
This letter was expressed to be in the nature of a notification to Mr Evans prior to the decision to issue any building order. There is no evidence of what, if any, action the respondents or the Shire of Denmark took next.
The letter does not disclose who measured the level of the concrete slab, the methodology for doing so nor their qualifications for making such an assessment particularly in conditions where the original datum point had been lost. The extent of the site inspection is questionable, given the statement the location of the side boundary was unclear. If the inspection was prompted, the extent to which that prompt might have influenced the inspection is also unclear. Neither Mr Blackmore nor any other person responsible for taking measurements on behalf of the Shire of Denmark was called as a witness and the respondents were not provided the opportunity for cross-examination. The weight the Tribunal can give to Mr Blackmore's letter must be limited as a consequence of these concerns.

Further evidence of Mr Evans

In addition to the evidence noted above, Mr Evans stated in relation to the level of the concrete slab:
a)It was difficult to determine the falls and elevations of the block with the pre-existing house in place. He and Mr Fehr worked on the basis of an old site survey provided by the applicant. The nomination of an FFL of 47.5 metres was a midpoint shown on the site plan which showed the existing structure.
b)In discussions with Mr Fehr, the applicant and Ms John, Mr Evans understood it was agreed the floor level would be around the level of the existing carport because that would 'marry in' with the existing driveways.
c)It was and is not possible for the concrete slab to be any closer to the ground level and the only way to achieve a floor level of 47.50 metres at that position would be to dig down.
d)To dig down was contrary to the Contract plans, which had provided the house was to be approximately at the level of the pre-existing carport and the driveways.
e)In Mr Evans' opinion, lowering the level by digging down would be inappropriate for the site because to do so would have made the driveways too steep for trucks, the costs of additional retaining to the driveways and at the rear of the house would have been 'meteoric' and there likely would have been problems directing the drainage of water away from the house.
f)He did not seek a written variation following the agreement to increase the floor level because the floor levels were to be settled after demolition of the preexisting house and so the change was encompassed in the initial planning.
g)He had not sought building approval for the retaining walls because he was under significant pressure from the applicant and Ms John to complete construction, and time did not permit him to go back to the engineers and obtain the Shire of Denmark's approval. So although it was not ideal, he decided to seek retrospective approval and he considers this approach is not unusual in the building industry.
h)He expressed the opinion the applicant and Ms John may have felt the profiles for the extended floor and balcony appeared high, but that was in the nature of a sloping block and likely looked higher with just the stringlines in place.
i)He had observed the applicant excavating the area of the extended floor and balcony to increase his underfloor storage.
j)The original plans provided for the decking to be approximately 2 metres off the ground. By his calculations based on the current floor level of the concrete slab the decking would be 2.1 metres off the ground.

Further evidence of the applicant

In addition to the evidence noted above, the applicant stated in relation to the level of the concrete slab:
a)He agreed there was to be no digging to lower the ground level.
b)The applicant disagreed the concrete slab could not go lower to the ground and pointed to the measurements by Mr LeFort and the Shire of Denmark and the installation of the retaining walls as proof of the same. He further stated the level of the driveways had been raised by the laying of gravel on the driveways which he claimed also demonstrated the concrete slab was not at ground level.
c)He appeared to agree he had put some degree of pressure on the respondents to complete construction, stating in response to that statement by Mr Evans that he and Ms John had wished to be living in the new house by Christmas.
d)The applicant said he only realised there might be an issue with the floor level when persons on behalf of the respondents were doing set outs for that part of the house which was to be on stumps. It appeared to him the balcony would be approximately 3 metres off the ground, instead of 1.5 metres off the ground. As a result he started reviewing the plans and the work done and realised there were several faults and only later realised the height of the floor level of the concrete slab.
It might be noted none of the documents lodged with the Tribunal contained details of the planned height of the balcony from the ground underneath, nor the length of the posts which would be supporting the house and balcony, nor any projections or measurements of what the current level of the concrete slab would mean for the height of the balcony if it were built.

The evidence of Mr Ballantyne and Ms John

Mr Ballantyne stated he is the applicant's son-in-law. He has a background in engineering and as an owner-builder, and was asked to get involved in this matter in May 2021 because of the stress the applicant was feeling. He agreed with the applicant's assessment of the level of the concrete slab.
Ms John stated her husband first raised concerns regarding the height of the concrete slab in early May 2021. She stated the house should have been 'nestled into the slope' and the current height was not what she wanted because:
a)at that height there would be no views of the river, only the treetops; and
b)a 3 metre height would mean too many steps for a house that was supposed to be for their retirement.

Consideration

The parties entered into a contract for the construction of a new residence. The evidence establishes the Contract was comprised of Mr Fehr's architectural plans[22] and the HIA pro-forma contract.[23] If other documents originally formed a part of the parties' Contract they have not been tendered in evidence.
[22] HB pages 149-155.
[23] HB pages 54-83.
It appears from the email of Mr Fehr dated 3 August 2020 and the attachments thereto[24] the parties may have originally envisaged the new house as being located at the same position as the pre-existing house. However, by the time of execution of the Contract on 27 November 2020, the Contract plans showed the new house was to be constructed further down the block.
[24] HB pages 276-278.
The August 2020 plans of Mr Fehr indicate the ground level at the location of the pre-existing house was largely horizontal but moving the house forward to the location identified in the Contract plans meant the house was to be located almost entirely on sloping ground.
In the absence of sufficient evidence to indicate to the contrary, the Tribunal accepts the contour plan contained in the Contract plans as evidence of the ground levels at all material times. The applicant has not alleged the concrete slab is located in the wrong position on the block and so the Tribunal accepts the location of the concrete slab (in terms of its orientation and position between the boundaries) is in accordance with the Contract plans and the parties' agreement.
It was the evidence of the respondents the FFL of the new house had been verbally agreed to approximate the floor level of the preexisting carport. That is consistent with Mr Fehr's email of 3 August 2020, but the Contract plans clearly indicate a different position of the new house further down the block and the FFL noted in the plans altered from 48.9 metres in August 2020 to 47.50 metres in the Contract plans.
The contour plan in the Contract plans indicates the rear of the new house was to be situated in the same location as a portion of the pre-existing house, where floor levels were said to be 48.98 metres and 48.69 metres. There is no measurement of the ground level underneath the pre-existing house, the measurement which appears adjacent is 47.95 metres.
If the ground level at the rear of the new house was 47.95 metres, it would not be possible to achieve a FFL of 47.50 metres without lowering the ground level by digging. The position of both parties is, and the Tribunal therefore accepts, the agreement was the house was to be constructed on the then existing ground level and the ground level underneath the new house was not to be lowered. It follows the new house could only be constructed at the location identified in the Contract plans if the front of the house were raised to achieve the same level as the rear.
The position of both parties is, and the Tribunal therefore accepts, there was a verbal agreement in or about February or March 2021 the floor level of the new house was to be above the level of the driveway for the purposes of draining water away from the house.
Therefore, the evidence does not establish, and the Tribunal does not accept, the applicant's contention the respondents were subject to a contractual obligation to achieve an FFL of 47.50 metres. It is unclear whether the agreement of the parties was to determine the FFL after the demolition of the pre-existing house, or whether the original agreement for an FFL of 47.50 metres was verbally varied by the parties upon ascertaining the site conditions after demolition, and it is not necessary for the Tribunal to reach a settled view on this point.
Evidence as to the FFL verbally agreed by the parties is scant and the recollections of the applicant and Mr Evans are contradictory. The measurements taken by Mr LeFort may not be entirely consistent with the installation of a concrete slab atop a compacted sand pad on a ground level of 47.95 metres, but after a consideration of the totality of the evidence before the Tribunal this is not sufficient to displace the preceding conclusions.
On the basis of the foregoing, the Tribunal finds the applicant has failed to establish on the balance of probabilities the FFL of the concrete slab was in breach of the Contract.
The applicant's claim at item 2(a) is the installation of the concrete slab was not carried out in a proper and proficient manner or was faulty or unsatisfactory due to a breach of contract. Accordingly, if there is a finding there was no breach of the Contract between the parties, the applicant has failed to establish this part of his complaint.
However, it appears the Shire of Denmark has formed the view the FFL of the concrete slab is potentially not in accordance with the approved plans.[25] The respondents are liable to either satisfy the Shire of Denmark the concrete slab is in accordance with the approved plans or cause the approved plans to be amended to reflect what has been built and to obtain approval accordingly.

Item 2(b) - physical or chemical barrier

[25] HB pages 92-93.

In his complaint, the applicant alleges the respondents 'did not install/apply a physical or chemical barrier prior to the pouring of the concrete slab'.[26] In the completed complaint schedule before the Building Commissioner the respondents stated[27] 'Chemical Collars were fitted as per current AS'.
[26] HB page 260.
[27] HB page 260.
In an earlier response to the applicant's proposed complaint, the respondents stated:[28]
Under slab spray is not required under current standards. Certificate of compliance had been issued. Termite barrier compliance has since been rendered invalid with unauthorised slab cutting and plumbing works carried out by the client during the builder's absence.
[28] HB page 137.
In reply the applicant wrote:[29]
We believe as the slab was poured in two separate pours with a cold joint, that the slab is not a suitable termite barrier. This is a mute[sic] point as FFL is not what is wanted. The slab is going to be removed.
[29] HB page 174.
In his evidence to the Tribunal Mr Evans explained his comment regarding invalidation of the termite barrier as follows. Whilst Mr Evans was absent from the site on a family holiday, the applicant moved the pre-laid plumbing in the concrete slab (drains for laundry and kitchen sinks) without Mr Evans' knowledge. The applicant thereby damaged or removed the protective termite barriers around the plumbing fixtures. Had Mr Evans known the sinks were to be relocated, the cutting of the concrete slab would not have been his approach.
The applicant lodged no expert report or other document in support of his allegation of the absence of any or any adequate termite controls. In his evidence Mr Ballantyne stated:
a)The engineering plans were for a 'mono-slab' but the concrete slab was poured in two.
b)Mr Ballantyne had been told a concrete slab is not a termite barrier if there is a cold joint. He was unsure as to the source of this information.
c)The termite report also notes the cold joint.
d)A report had stated a physical barrier had been applied to the plumbing, but no spray barrier was applied.
e)Mr Evans had stated to Mr Ballantyne a chemical barrier would be applied to the perimeter at the end of construction.
g)The alleged absence of termite protection was a minor issue now and irrelevant because they cannot keep the concrete slab.
The applicant added, 'there is no evidence of termite spray or anything put around anyway'.
The Tribunal observes no report or reports described in c) and d) of [93] above were filed with the Tribunal.
The applicant has made an allegation, which the respondents have denied. Therefore, the onus is upon the applicant to prove his allegations on the balance of probabilities. The applicant unfortunately did not adduce any evidence beyond his and his family members' personal opinions regarding what if any physical or chemical termite barrier measures were in place and the sufficiency of the same. For this reason, the Tribunal has little choice but to find against the applicant.

Item 2(c) - two-piece concrete slab

In his complaint, the applicant alleges the respondents 'poured the concrete slab in two sections (garage and dwelling) whereas the drawings that formed part of the home building work contract stipulated a single concrete slab'.[30] In the completed complaint schedule before the Building Commissioner the respondents stated that they were 'entitled to adopt and vary method based on experience and governed by NCC and relevant standards'.[31]
[30] HB pages 13 and 260-261.
[31] HB page 260.
In an earlier response to the applicant's proposed complaint, the respondents stated:[32]
The builder reserves the right to use various construction methods governed by the NCC and relevant standards. All works have been verified as compliance and fit for purpose by an independent civil engineer.
[32] HB page 137.
In reply the applicant wrote:[33]
This is considered a variation from the engineered drawings and was not discussed. A building supervisor could easily have discussed this at the correct time. This only really became an issue when other quality issues of the slab were seen. Mute[sic] point due to FFL.
[33] HB page 174.
The evidence of the parties established at the time of execution, the Contract documents were comprised by the completed HIA proforma contract and the plans of Mr Fehr. Neither of those documents oblige the respondents to construct the concrete slab as a single piece. That requirement is contained in the engineering plans prepared by MA Lalli & Associates, but the evidence establishes those plans were provided to the respondents in January 2021, after execution of the Contract in November 2020. Therefore, it cannot be said the construction of the concrete slab in two parts was a breach of contact.
In his evidence Mr Evans stated:
a)Due to the pressure to complete, there was not sufficient time to 'go back to engineers, back through the … full compliance process where we would then go back to resubmit it to council etc … so we would lean on the retrospective pathway'.
b)The engineering plans were arranged by the applicant without any input from the respondents. The plans had been prepared on the basis the property was an H class site, which is a highly reactive site with clay soils. Mr Evans stated although it is possible to pour a slab on clay, it is not something Mr Evans would ever do or consent to be done. Therefore, the earthworks were conducted as originally quoted so that soil was extracted, and clean sand brought in and compacted. This changed the engineering parameters so it was an S class site.
c)The respondents 'set up the slab pours exactly as we do for … any other house site'. It is their 'standard methodology' to pour the concrete slab for the carport separately to the concrete slab for the house and sometimes the carport slab is not poured until after construction of the house is completed.

It was clear from the statements made by Mr Evans and the manner of his answers to questions, that the respondents did not consult with MA Lalli & Associates in relation to their intention to construct the concrete slab in two parts instead of one complete piece.
The respondents lodged a report by Kevin Lodge of Kevin Lodge Engineering[34] which assesses the sand pad, slab and retaining wall. In his report Mr Lodge states the separate concrete pour for the carport area with starter bars across the junction 'is an acceptable modification' and that internal beams are not required in the carport slab 'because it is a small slab area ... and that the site has been rendered a lesser reactivity'.[35]
[34] HB, pages 303-309.
[35] HB, pages 303-309.
The report of Mr Lodge does not detail his qualifications, training and experience and does not disclose the instructions on which the report is based. Mr Lodge was not called as a witness and the applicant had no opportunity to cross-examine him. These concerns must affect the weight to be given to the report. Relevantly to item 2(c), the report does not contain information as to how Mr Lodge was able to ascertain starter bars were installed, nor a geotechnical assessment of the site. The latter is crucial in circumstances where the 'lesser reactivity' appears to be a significant factor in Mr Lodge's assessment of the slab even though the site was classified in the MA Lalli & Associates engineering plans as a highly reactive clay site.
After a consideration of all the above factors, the Tribunal finds the respondents did not carry out construction of the concrete slab in a satisfactory manner.
There is, however, inadequate evidence before the Tribunal as to whether or not the concrete slab as constructed in two parts is structurally sound or requires rectification. Furthermore, there is no evidence before the Tribunal as to the likely cost of any rectification, only the applicant's quote for the complete removal of both the concrete slab and the retaining wall.[36]

Item 2(d) - inadequate tie-ins

[36] HB, pages 194-195.

In his complaint, the applicant alleges 'when pouring the concrete slab in two sections, the Builder failed to adequately tie-in the two sections of the slab'[37] and refers to a photograph[38] which is said to show the 'lack of ties/dowels'. In the completed complaint schedule before the Building Commissioner the respondents stated '[t]ie in not required but was completed as per builders [sic] standard procedure'.[39]
[37] HB pages 13-14 and 260.
[38] HB page 216.
[39] HB page 260.
In his evidence Mr Ballantyne stated in relation to whether the slab sections were adequately tied-in:
We have said all we can on that. We can't prove definitively that it hasn't been tied in, but at the time we suspected that it hasn't, just with what was being said. But again, now that we know what the FFL is, we don't want this slab, they then sort of slipped down the priority list because we're going to have to have this slab removed now anyway.
The applicant has made an allegation, which the respondents have denied. As stated, the onus lies upon the applicant to prove his allegations and in the absence of evidence in favour of the applicant's claim, the Tribunal must find against the applicant on this point.

Item 2(e) - edge thickening

In his complaint, the applicant alleges 'the concrete slab poured by the Builder does not comply with the drawings that form part of the home building work contract (e.g. edge thickening at ET1 Location 1 is below the required 400mm) and prevents the Owners from obtaining a soil coverage of 150mm and an air gap of 150mm'.[40]
[40] HB pages 14 and 261.
In support of this contention, the applicant drew the Tribunal's attention to the following documents:
1)the engineering plans prepared by MA Lalli & Associates;[41]
2)an email from Guy Anza dated 28 May 2021 and the email from Mr Ballantyne to which Mr Anza was responding;[42]
3)photographs[43] which depict a measuring tape held against the side of a concrete slab and a piece of wood affixed to the side of a concrete slab; and
4)sheet S3 of the engineering plans[44] containing claims regarding the thickness of the slab at two points (amended Sheet S3).
[41] HB pages 32-42.
[42] HB pages 185-186.
[43] HB pages 187-188.
[44] HB page 223.
In the completed complaint schedule before the Building Commissioner the respondents stated '[r]emedial works can address this in under a day (Underpinning)'.[45]
[45] HB page 160.
The report of Kevin Lodge Engineering[46] identifies three locations at which the slab is not a minimum of 400 millimetres thick with 150 millimetres below ground level. There are issues which could affect the evidential weight to be given to the email of Mr Anza and the report by Mr Lodge. However, given the nature of the respondents' evidence it is not necessary to consider those issues in relation to this complaint item.
[46] HB pages 303-309.
The points at which the concrete slab has been identified as lacking sufficient edge thickness by the applicant may not be the same points identified by Mr Lodge. It is unclear whether the amended Sheet S3 was intended to be an accurate plan or merely illustrative, and Mr Lodge's report states the measurement of slab thickness was taken at 'random inspection points'. The possible differences between the two documents does not in all the circumstances prevent a conclusion in favour of the applicant and the Tribunal finds this portion of the respondents' building work is faulty and unsatisfactory.
There is however, no evidence before the Tribunal as to the likely cost to rectify this issue. Mr Ballantyne expressed the view there may be substantial work involved to underpin the concrete slab, but that the applicant could not use the concrete slab in any event due to the rejection of floor level as being satisfactory.

Item 2(f) - slab retaining

In his complaint, the applicant alleges the respondents 'did not construct proper retaining for the slab, resulting in the rain washing the sand away underneath the slab and the undermining of the slab'.[47] As evidence proving this contention the applicant lodged two photographs[48] described as 'attachment 11'. In the completed complaint schedule before the Building Commissioner the respondents stated '[c]lient intervened and installed his own version'.[49]
[47] HB pages 14 and 261.
[48] HB pages 217-218,
[49] HB page 260.
In an earlier response to the applicant's proposed complaint, the respondents stated:[50]
Washout was discussed with client on-site after a rain event, and the carport concrete work being complete. Builder gave an undertaking in the morning to secure the pad later that same day. Contractors attended that afternoon to find the client had installed his own version. It spoke heavily to the clients[sic] emerging attitude regarding trust and perceived role in the construction process.
The client was later advised by email (22/6) that they should address the ongoing damage to the sand pad, specifically the Northern side. No further action has been taken to protect the asset. The undermining is still of a highly repairable nature, although the client seems to now want to exacerbate the damage by removal of protective measures and further digging around the slab perimeter.
[50] HB page 137.
In reply the applicant stated:[51]
This is not relevant. The rain was unusual. The concern is around areas on slab which is not suitably retained now; not the washout due to not being finished. David Evans would not acknowledge the issues. This is an example of his inability to resolve a simple issue.
This is a mute[sic] point as FFL is incorrect.
[51] HB page 175.
In his evidence before the Tribunal Mr Ballantyne stated the complaint of the applicant was not in relation to that part of the retaining which had not been finished when excessive rains occurred, but that there were two points around the plumbing works where 'there is no retaining at all' and there had been sand washed out from underneath. Mr Ballantyne went on to state this complaint 'is not relevant now because we can't use the slab'.
The conclusion of the Tribunal from the evidence provided by the parties and a consideration of the photographs lodged by the applicant is that the applicant alleges the washing out of sand from under the concrete slab was following an unusually heavy rain event. The respondents admit this occurred but denies this occurred as a result of the building works not being carried out in a proper and proficient manner or being faulty or unsatisfactory. The photographs of the applicant are insufficient without more to prove the applicant's claims on the balance of probabilities and accordingly the Tribunal must find against the applicant on this point.

Item 2(g) - wall plate fitting

In his complaint, the applicant alleges '[a]t the temporary wall plate location (at the Concrete Slab to Timber Floor Connection), the Builder failed to properly form up the concrete to enable the wall plate to be fitted'.[52] In the completed complaint schedule before the Building Commissioner the respondents stated '[s]tandard method is to QuickCut face prior to attaching a waling plate'.[53]
[52] HB pages 14 and 261-262.
[53] HB page 260.
In an earlier response to the applicant's proposed complaint, the respondents stated:[54]
[O]ur standard practice and preferred method is to cut a clean, square face when attaching a waling plate when required.
[54] HB page 137.
In reply the applicant stated:[55]
Not tradesman quality. This should have been a dropped edge beam and formed up to the correct depth and to give a flat face. This was formed up as per a build on a flat block and not a house on a sloping block.
Mute[sic] point because of FFL.
[55] HB page 175.
In his evidence before the Tribunal Mr Ballantyne stated the concrete slab:
wasn't formed up so the concrete was bulging out, and it was rough and there was a wall plate on there. Mr Evans said that was temporary and they would grind it off before they did it. We didn't really buy that, but look we're not builders. It looked pretty childish to us. However if that was what he was going to do they will take his word at that but it wasn't thick enough anyway. But really that's a minor issue [inaudible] It's a tough way of going about it, it seems.
In view of the paucity of evidence produced by the applicant, and the admission by Mr Ballantyne, the Tribunal must find the applicant has failed to prove his allegations regarding item 2(g) of the complaint.

Item 2(h) - set downs

In his complaint, the applicant alleges the respondents 'failed to provide set downs to the toilet wet area as stipulated in the drawings that formed part of the home building work contract'.[56] As evidence proving this contention the applicant lodged three photographs[57] described as 'Attachment 12'. In the completed complaint schedule before the Building Commissioner the respondents stated, '[n]ew NCC dictate elimination of set downs. Floor waste is sufficient with tiling screed in a WC'.[58]
[56] HB pages 14 and 262.
[57] HB pages 231-233.
[58] HB page 260.
In an earlier response to the applicant's proposed complaint, the respondents stated:[59]
This is not our standard construction method and fall in WC's and Power rooms is achieved at tiling and fix out stage. Bottom plate fixing and waterproofing detail in the wet areas are enhanced by adopting this method when the two areas are adjacent but separate.
[59] HB page 137.
In reply the applicant stated:[60]
No variation. A building supervisor could have avoided this issue easily. This was not what David John wanted.
[60] HB page 175.
In his evidence before the Tribunal Mr Ballantyne stated:
David wanted it as per the drawing where the set downs so that tiles were lower than the timber floor in the rest of the house should there be a leak. He also thought the floor would be sloped going to the drain … Mr Evans said that wasn't necessary now … but again because of the other issues it's a moot point now. We're going to need to remove this slab.
The evidence of the applicant clearly demonstrates, and the respondents admit, set downs were omitted from the concrete slab. This is contrary to the engineering plans; there is no evidence of a written variation or other agreement regarding the elimination of the set-downs; and the Tribunal considers the explanation of the respondents inadequate in the circumstances; and accordingly finds the respondents did not carry out this portion of the building service in a proper or proficient manner. There is unfortunately, no evidence before the Tribunal as to the likely works required or the likely cost of the works required to rectify this issue.

Item 3 - north boundary retaining wall

At item 3 of the complaint to the Building Commissioner, the applicant claims (for the reasons contained in paras 3(a) and 3(b)) the respondents breached the Contract by failing to construct the retaining wall closest to the northern boundary of the property in a proper and workmanlike manner in compliance with all relevant statutes, regulations and local laws and any lawful orders or directions made thereunder.[61]
[61] HB pages 15 and 263.
In relation to item 3(a) of the complaint, the applicant alleges that had the concrete slab been constructed in accordance with the Contract rather than 1.13 metres higher, construction of the retaining wall would not have been necessary.[62] In the completed complaint schedule before the Building Commissioner the respondents stated:[63]
Height was set by the client. Site works did not form part of the contract as per quotation that acts as an addendum to the contract. Client requested and accepted a quotation prior to retaining works commencing. He was offered alternatives but wanted to retain the existing driveway's amenity.
[62] HB pages 14-15 and 262-263.
[63] HB page 263.
In relation to item 3(b) of the complaint, the applicant claimed the:[64]
Builder did not have the northern boundary retaining wall engineered and did not obtain the approval of the Shire of Denmark prior to building the northern boundary retaining wall (which is not yet complete). The northern boundary retaining wall, in its partially completed state, has not been constructed in accordance with the R Codes.
[64] HB pages 15 and 263.
In the completed complaint schedule before the Building Commissioner the respondents stated:[65]
Discussed possible R-Code issues with client on-site. Spoke to his neighbour on his behalf and at his request to gain permission. Remedial works will address infill as per engineering detail. Council has not requested any action, the Building Surveyor has not required any further works after site inspection.
[65] HB page 263.
In an earlier response to the applicant's proposed complaint, the respondents stated,[66] and the applicant replied, as follows (the replies of the applicant are inserted between these paragraphs as shown below and indented):
[66] HB page 137.
The slab was constructed to the client requested, and agreed, revised FFL. The client further identified his need for retaining the sand pad to preserve amenity and access to existing assets specifically the driveway on the southern boundary and his shed.
Retaining was also requested by the client to the Northern boundary so that further parking (trailer etc.) could be accommodated. This retaining work is now under review by the local authority at the client's request. It has been assessed as structurally sound once four additional 'in fill' pegs are constructed. R‐code compliance can be achieved should council request it by stepping the top course down.
The FFL is definitely not what was requested by the client. This is an untruth. See comments above in response to 2a.
Structurally neither retaining (under slab and boundary) was necessary and were client initiated, out of scope additions, to the building contract and plans supplied.
The retaining work while not initiated by the builder or any of his representatives, were deemed sensible and logical additions to accommodate the client's needs and wishes.
In further response to them not being necessary if the original FFL had been not varied at the client's request, it is self‐evident, with knowledge of the site, that should the FFL be lowered by 1.113 mtrs the extent of retaining work then required would be several times what has been currently undertaken.
Not true. There are several ways to complete retaining of gardens/drives etc. this is not for David Evans to assume. The FFL is important to this site in order to maximise the views and harmonise with the environment. A formal variation to contract could have saves this slab from being poured had correct protocol in accordance with the building contract been followed.
Extensive retaining would be necessary to secure the existing driveways (that would likely be rendered impractical given their already steep slope) and the substantial undercutting of the western boundary. Contractors have provided comment that engaging four‐wheel drive is already necessary to currently navigate out of the property with tool trailers attached.
Not true. Initial plan is sound.
Council officers concurred after an on‐site inspection that it was logical given the terrain and drainage challenges what had been constructed regarding the revised slab height. The retaining work and variation to FFL was considered unauthorised works but they would issue retrospective approvals once engineering detail, revised plans and a boundary survey were supplied.
It is not for David Evans to decide FFL. There hasn't been a submission to Shire for an FFL variation as it is not what David and Caroline want.
In his evidence before the Tribunal Mr Ballantyne pointed to the letter from the Shire of Denmark[67] as proof that the respondents had not obtained the required approvals for construction of the retaining wall. He referred also to the report of Kevin Lodge,[68] saying that the respondents' engineer considered it had not been adequately strengthened. But the essence of the complaint was the applicant's belief the retaining wall should never have been required and there were costs implications of the raising of the FFL that were never disclosed to the applicant.
[67] HB pages 92-93.
[68] HB pages 303-309.
Mr Ballantyne conceded he was not aware if it was true that the retaining wall was non-compliant with the relevant R-Codes. He said he did not know the R-Codes and thought that he or the applicant may have heard that from an officer of the Shire of Denmark.
Mr Ballantyne and the applicant further confirmed the applicant's view as expressed throughout that both the concrete slab and the retaining wall had to be demolished so that the concrete slab could be reinstated at the correct level.
As discussed above, the Tribunal found the evidence does not establish the respondents were under a contractual obligation to achieve a FFL of 47.50 metres. On that basis, and the evidence the applicant accepted the quote for the construction of the retaining wall, the Tribunal finds the installation of the northern boundary retaining wall was not in breach of the agreement between the parties.
As noted in [104] above, there are concerns which affect the weight to be given to the report of Kevin Lodge Engineering, but in the absence of any contrary evidence, the Tribunal accepts this report establishes there were faults in the construction of the retaining wall. Unfortunately, the report provides no estimate of the likely costs of rectifying these faults.

Outcome

The Tribunal has made findings on the questions of liability and workmanship which arose pursuant to items 1, 2 and 3 of the building complaint. Unfortunately the parties did not sufficiently address the question of remedial works and the costs of the same.
We are of the view it is in the best interests of the parties if a mediation could occur whereby the implications of this decision could be considered. This matter will therefore be set down for a mediation and if not successful, the outstanding issues regarding remedial work and cost will be dealt with by way of a further hearing.

Orders

The Tribunal orders:
1.The following complaint items are dismissed: 1, 2(b), 2(d), 2(f), 2(g) and 3(a).
2.The following complaint items are upheld: 2(c), 2(e) and 2(h).
3.The following complaint items are upheld in part: 2(a) and 3(b).
4.The matter is set down for a mediation at a date to be fixed.
5.The parties are to provide their unavailable dates to attend a mediation via videoconference within seven days.
6.If the matter does not settle in mediation, it shall return to a directions hearing during which programming orders shall be made for the question of the scope of remedial works and/or costs for remedial works to be determined.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS N Oldfield, MEMBER
30 MAY 2022