KATAFONI and CHALKBUILD PTY LTD
[2020] WASAT 133
•30 OCTOBER 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION: KATAFONI and CHALKBUILD PTY LTD [2020] WASAT 133
MEMBER: MS N OWEN-CONWAY, MEMBER
MR P MARSHALL, SESSIONAL MEMBER
HEARD: 29 AND 30 JUNE 2020
DELIVERED : 30 OCTOBER 2020
FILE NO/S: CC 259 of 2019
BETWEEN: IZABELA KATAFONI
First Applicant
LUKASZ KATAFONI
Second Applicant
AND
CHALKBUILD PTY LTD
Respondent
Catchwords:
Remedial orders - Scope of works - Costs of remedial work - Turns on own facts
Legislation:
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5(1), s 5(2), s 36(1)(a), s 36(1)(b)
State Administrative Tribunal Act 2004 (WA), s 83
Result:
Applicants successful in part
Category: B
Representation:
Counsel:
| First Applicant | : | Mr W Vogt |
| Second Applicant | : | Mr W Vogt |
| Respondent | : | Mr A Rumsley |
Solicitors:
| First Applicant | : | Vogt Graham Lawyers |
| Second Applicant | : | Vogt Graham Lawyers |
| Respondent | : | Alan Rumsley |
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction and background
On 16 and 17 July 2019, 26 and 27 August 2019 and 1 September the Tribunal part-heard the complaints and applications made by the applicants (Ms Izabela Katafoni and Mr Lukasz Katafoni) against the respondent concerning the construction of the applicants' residential dwelling. The hearing dates referred to above were limited to the question of 'liability'of the respondent. That limitation was placed on the Tribunal constituted to hear the proceeding by an order of the Senior Member (order dated 25 June 2019) granting the applicants the option to have the issue of the respondent's liability heard and determined first before any hearing on the final orders to be made by the Tribunal, should the respondent be found to be 'liable' to the applicants. The applicants exercised that option by notice dated 28 June 2019. The 'liability' issue that was the subject of those hearing dates involved a determination as to whether the respondent was the entity that carried out the aspects of the building work complained of, and whether the building work complained of was faulty or unsatisfactory or not proper and proficient in the manner in which it was carried out. The specific complaints were numbered 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10. These complaints were made pursuant to s 5(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act). There were also three complaints that were made pursuant to s 5(2) of the BSCRA Act complaint items 11, 12 and 13.
On 18 December 2019 the Tribunal made the following decision concerning the liability of the respondent to the applicants in respect of complaint items 1, 3, 4, 5, 8, and 10:
The Tribunal orders:
Complaint Items 1, 3, 4, 5, 8, and 10:
1.Following a hearing limited to the respondent's liability pursuant to s. 5(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) the regulated building services performed by the respondent and referred to in complaint items 1, 3, 4, 5, 8, 9 and 10 referred to the Tribunal by the Building Commissioner of Western Australia pursuant to s.11(1)(d) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), the Tribunal determines and finds is, in each case, faulty and unsatisfactory and not proper and proficient and the respondent is liable therefor, pursuant to Building Services (Complaint Resolution and Administration) Act 2011 (WA).
Final orders were also made in respect of complaint items 11, 12 and 13. Final orders were made in respect of complaint items 6 and 9 (dismissed) and complaint items 2 and 7 which items were the subject of an order granting the applicants leave to withdraw the same. The orders have been corrected pursuant to s 83 of the State Administrative Tribunal Act 2004 (WA) to clarify that complaint item 9 was in fact the subject of a dismissal.
The Tribunal provided oral reasons on 18 December 2019 for the decisions made. The final orders made in respect of complaint items 2, 6, 7, 9, 11, 12 and 13 were fully resolved and no further hearing or orders were necessary to dispose of the proceeding in so far as those complaint items were concerned. The proceeding was part heard as at 18 December 2019 in so far as complaint items 1, 3, 5, 8, and 10 are concerned. On 18 December 2019 and following a short adjournment for the parties' counsels to confer, the Tribunal ordered the parties attend mediation on a date to be fixed. On 18 December 2019, the expectation was that the mediation date would be agreed between the parties, the Tribunal would be informed and the mediation would be listed.
The date was not agreed and the parties did not attend mediation. Instead the proceeding was progressed for a further hearing to determine what orders should be made in respect of each of complaint items 1, 3, 4, 5, 8 and 10.
On 29 and 30 June 2020 the hearing was conducted concerning the dispositive orders to be made by the Tribunal in respect of complaint items 1, 3, 5, 8, and 10.
The decision on 18 December 2019
On 18 December 2019 the Tribunal made the findings and conclusions summarised below.
Complaint item 1 - The water entering the eaves and around wall openings
This complaint item was the subject of much evidence and there are a number of causes. The defects in the building work have resulted in damage to the external Scyon Matrix cladding to the parapet walls and facades of the pergola areas (north and south) and above the carport, and the balustrading above the alfresco as well as water damage to the eaves (soffit) linings and carport and balcony/alfresco ceilings. The Tribunal found that the respondent was obliged by reason of the Building Permit to comply with the provisions of Building Code of Australia P 2.2.2 and the Scyon Matrix manufacturer's instruction. In this proceeding the building elements of the parapet walls and facades of the pergola areas (north and south) and above the carport, and the balustrading above the alfresco were to be wrapped in HardiWrap or a suitable alternative breathable vapour proof material (the Wrap). The Wrap fulfills three important functions:
a)it assists in reducing water ingress through gaps in the Scyon Matrix and so protecting the building elements from water damage;
b)it protects the building elements from a build-up of internal condensation that would otherwise damage the building elements; and
c)it assists in external heat or ember penetration (a factor relevant to complaint item 3 in this proceeding).
The Tribunal found that the parapet walls and facades of the pergola areas (north and south) and above the carport, and the balustrading above the alfresco were not wrapped as required. Those elements must now be wrapped in accordance with the Scyon Matrix instruction manual. Thatؘ outcome necessarily requires the removal of the Scyon Matrix material to those features of the dwelling and the installation of the Wrap. The proper installation of the Wrap to the above building elements is a partial remedy for complaint item 1 and a partial remedy to complaint item 3 (compliance with Bushfire Attack Level 29 assessment (BAL 29)). The Tribunal also found that the Sycon Matrix material was improperly used to cap the parapet walls and other horizontal surfaces. Where those horizontal surfaces were also not wrapped as required, water could penetrate and has penetrated to the building elements. The Scyon Matrix cladding material is damaged in some of those areas and further there is water damage to the eaves linings and carport and alfresco ceilings. Those horizontal surfaces were to be capped as advanced by the applicants with metal capping.
The Tribunal also found that a third contributor to the water ingress and damage to the eaves linings and the carport and balcony/alfresco ceilings is the fact that the water in the upper cavities was blocked by the eave lining and ceiling sheets. Exhibit 6 was found (following agreement of the parties' experts) to be a suitable remedial construction method that resulted in a gap for water collected in the cavity to egress the building. The installation of a metal facia or trim to that gap would reduce the gap to less than 2 millimetres so that the gap complied with BAL 29 as required by the Building Permit issued to the respondent and as the Tribunal found the contract between the parties required.
The applicants originally alleged that a further cause the absence of flashing or the improper flashing of the upper floor windows. The Tribunal made no findings concerning the need to remove the windows and re-flash the same. That alleged defect was withdrawn during the hearing conducted in 2019, as the applicants were satisfied that the defect had been apparently remedied and no water was entering the internal living areas of the house as it had at an earlier point in time. The remedial work necessary the demolition of the Scyon Matrix cladding, installing the Wrap, reinstating the Scyon Matrix cladding to the aforementioned areas of the dwelling and creating the gaps as depicted in Exhibit 6, and the cost of the same - was to be determined at the subsequent hearing.
Complaint item 3 non-compliance with BAL 29 requirements
As stated above the Tribunal found that the parapet walls and facades of the pergola areas (north and south) and above the carport, and the balustrading above the alfresco building elements should have been wrapped in the Wrap The installation of the Wrap was also required to protect the building elements from ember ingress so that the construction complied with BAL 29, the gaps to the roof and all penetrations required to be wrapped to deal with external ember and heat penetrations.
The building also required that the gaps in the roof material and all openings and ember ingress points to the dwelling above the roof required minimisation to a gap of 2 millimetres for the construction to comply with BAL 29. The Tribunal concluded that a 2 millimetre aperture metal gauze ember guard should have been fitted by the respondent to all 2 millimetre and greater apertures or gaps, including metal gauze to the range hood penetration at the roof line; a metal flashing around the Velux skylights; that the fibre glass flyscreens to the Velux skylights should have been replaced with metal screens; and flexible sealant should have been installed to the downpipe penetrations into the eaves. The function to be performed by this building work is to prevent ember ingress through the apertures, accessing the flammable building elements (such as timber and eaves and ceiling linings) to reduce the risk of destruction of or damage to the dwelling by fire as called for by BAL 29. This item of complaint also includes complaint item 10 as the requirement to supply and install ember guards to the gutters (where the batons beneath the roof cover material are exposed to embers) was found by the Tribunal to have arisen from the terms of the contract between the parties (as noted on the specifications and as noted on the drawings of the contract between the parties) and from the terms of the Building Permit issued to the respondent.
As stated above, if the eaves lining sheets were to be cut back and constructed in accordance with Exhibit 6 the application of the metal flashing or trim at the edge of that gap would serve the purpose of reducing that gap (for the proper operation of the cavity) to 2 millimetres so that that gap would comply with BAL 29.
Complaint item 4 main bedroom ensuite shower floor and tiling
Complaint item 4 concerns the ensuite bathroom shower floor which the Tribunal found has no fall to the drain at one point and a very limited fall to the drain in part. The Tribunal found that the floor should have been constructed with a fall to the drain as it was an open shower with no hob, screen and door to the shower. The Tribunal found that the floor was required to have at least some fall to the drain, so as to ensure drainage. In this respect the Tribunal concluded in its finding:
… that the construction of the shower ensuite floor to the drain is faulty and unsatisfactory and not proper and proficient[.]
The fall to the drain must be produced from the opposite wall to the shower rose - being the floor beneath the towel rail - and must fall to the drain.
(ts 16, 18 December 2019)
Complaint item 5 small holes to tiles in guest ensuite bathroom
Complaint item 5 concerns small holes in the grout/tile in the guest bedroom ensuite bathroom. The Tribunal recorded in its reasons that 'the respondent conceded on 16 July [2019] that two small holes in the edge of the tiles in the guest bedroom ensuite bathroom' constitutes faulty and unsatisfactory building work or is building work that was not properly and proficiently carried out (ts 3, 18 December 2019). The Tribunal also recorded and found that the remedial work required is the 'application of additional matching grouting material so as to patch the holes at the edges of the tile[s]' so as to 'avoid detection of the holes to the naked eye'. The Tribunal also notes that it was a relatively minor matter but that some skill and care would be required to attend to the defect proficiently.
Complaint item 8 the installation of the ducted heat recovery venting unit (HRV unit)
The Tribunal found that:
1)that the respondent was responsible for the installation of the heat recovery ventilator unit (HRV); and
2)all of the tubing installed for the HRV unit by the respondent was likely to have been connected throughout the dwelling inconsistently to the manufacturer's instruction manual.
The Tribunal had before it the photographic evidence of one connection units situated in the pantry in the dwelling. Mr Katafoni had destroyed part of the pantry ceiling to examine the manner in which the tubes had been connected. Because this proceeding was part heard as at 18 December 2019, the evidence that was led to that date is not the limit of the evidence that the Tribunal can consider in order to determine the extent of the defect when assessing what dispositive order must be made in this proceeding. The purpose of the subsequent hearing on 29 and 30 June 2020 was to determine the final orders to be made which necessarily includes evidence concerning the scope of the remedial work to be undertaken and the cost of the same. The scope of work must necessarily arises from the Tribunal finding that the HRV unit was not installed in accordance with the manufacture's manual and was inconsistently installed as the various tubes in the one opening identified. It is therefore necessary for each instance of joinder of tubing to be exposed and ensure that the tubing correctly connected. Further, the scope of work to be performed necessarily requires the destruction of the ceiling or panel to gain access to the connections and making good of the damage to the ceiling or panel. The evidence before the Tribunal at the hearing in 2019 (Exhibit 4A electronic plans) indicates the locations of the tube connections.
Why was the proceeding part heard and the findings referred to above made?
Whilst the applicants' application sought a building remedy orders as defined by s 36(1)(b) of the BSCRA Act (that is, an order that the respondent pay to the applicants the cost of the remedial work), the respondent at all times asserted some of the complaint items:
a)were not the subject of building work that the respondent carried out as a matter of fact or law and that either the applicants or another was liable for the same (for example, complaint item 8) or
b)that the failure to carry out certain building work was the consequence of that work not being within the scope of the work the respondent was contractually obliged to perform (for example, complaint items 1, 3 and 10); or
c)the ensuite bathroom floor referred to in complaint item 4 complied precisely with the applicants' onsite instructions which relieved the respondent of its obligation to comply with the terms of the Building Permit.
Further, at all material times, the respondent has contended that the Tribunal should not make an order of the kind referred to in s 36(1)(b) of the BSCRA Act, but instead should make an order of the kind identified in s 36(1)(a) of the BSCRA Act, if one should be necessary at all. That is, the respondent opposed an order that it pay the applicants the cost of the remedial work found to be necessary. By order made on 25 June 2019 the Tribunal permitted the applicants to elect to have the issues identified in a), b), and c) above determined first before the Tribunal determined what final order should be made in the proceeding. On 28 June 2019, the applicants elected to that option. Issues a), b) and c) were the subject of the hearing in 2019. In order to make a final order that the respondent either remediate the defective work, or pay the cost of remediating the defective work, the Tribunal required evidence as to the scope of the remedial work. That evidence was the subject of the hearing on 29 and 30 June 2020.
The witnesses on 29 and 30 June 2020
The applicants relied on the evidence of Mr Rees-Mogg, a building practitioner registered pursuant to the Building Services (Registration) Act 2011 (WA). Mr Rees-Mogg prepared the scope of works dated 19 February 2019 and made comments on Mr Corlson and Mr Posthuma's cost of the work identified in that scope of work during his oral evidence.
The applicants also relied on the evidence of Mr Posthuma and Mr Corlson, the general manager and construction manager respectively, of Kidron Construction (Kidron). Mr Posthuma and Mr Corlson gave evidence concerning the cost of performing Mr Rees-Mogg's scope of works in their report dated 3 April 2020 (Kidron report). Neither Mr Posthuma nor Mr Corlson is a registered building practitioner nor a registered building contractor. Kidron is a registered building contractor. Mr Corlson is in the process of completing the formal tuition requirements for registration as a building practitioner. Mr Corlson gave evidence that he is a carpenter by trade. Mr Corlson and Mr Posthuma both gave evidence that preparing and costing a scope of work is work that they conduct in their roles for Kidron.
The respondent relied on Mr Miller's report annexed to his affidavit dated 25 February 2020 and his oral evidence. Mr Miller is an architect. Mr Miller gave evidence on a number of issues that had already been determined that is, whether certain items of work were faulty or unsatisfactory. This evidence was no longer relevant to the proceeding by the time of the hearing on 29 and 30 June 2020.
The respondent relied on the schedule of costs annexed to Mr Ockerdon's affidavit dated 16 May 2020. Mr Ockerdon is now an employee of Mr Manfredo Boni. During construction of the applicants' dwelling, Mr Ockerdon was an employee of the respondent and the supervisor of the trades on site during construction of the applicants' dwelling. Whilst there was some confusion at the hearing, the Tribunal accepts that Mr Manfredo Boni is both a registered building practitioner and registered building contractor. Mr Manfredo Boni did not give evidence in the proceedings. Mr Ockerdon gave evidence that preparing and costing a scope of work is work he conducts in the course of his employment with Mr Manfredo Boni. The respondent's proposition was that the Tribunal should order the respondent to cause or facilitate any remedial work, rather than order the respondent pay the applicants the costs of the remedial work. The respondent asserted that it could cause another regulated service provider to undertake that work to fulfil any order the Tribunal made, in the event that it could not undertake the work itself.
Some preliminary issues
Mr and Mrs Katafoni state in their signed statements that their search of the register of building contractors and practitioners kept by the Building Commissioner of Western Australia indicated that the respondent's building contractor registration (BC101228) expired on 3 July 2018. Their research also indicated that the registered building practitioner for that company, Mr Stefano Boni's building contractor registration (BC9979) expired on 1 August 2018. Mr and Mrs Katafoni are of the view that the respondent is no longer currently trading.
There is no evidence that the respondent is no longer 'trading' as a corporation but it can no longer contract to perform a regulated building service as it is not a registered building contractor. The applicants contend that it is not a registered building services provider which appears to be correct and they submit that an order should not be made requiring the respondent to remedy the necessary defective work.
Mr and Mrs Katafoni also gave evidence that the respondent has commenced proceedings in another jurisdiction against a corporation of which Mrs Katafoni is a director and the respondent seeks some form of relief in that jurisdiction from that corporation. That is a matter that is not relevant to this proceeding, although it concerns the construction of the applicants' dwelling by the respondent.
Mrs Katafoni also states that she has undertaken an internet search for the respondent and there is no 'active website for the same'. The0160applicants rely on this fact to assert that the respondent no longer trades. As stated there is no evidence that the respondent no longer trades as a corporation.
The respondent has not adduced any evidence on these matters but did not object to the statements being referred to and received by the Tribunal.
Mr Miller's evidence
Mr Miller gave evidence that he is a registered architect in Western Australia.
The Tribunal finds on the evidence as follows:
1)Mr Miller did not go to site and inspect any items of complaint, the subject of the orders made on 18 December 2019. This was admitted.
2)Mr Miller did not provide an arm's length independent opinion about the scope of the remedial work. Mr Miller's evidence is that he was not 'actually engaged' to conduct an inspection and provide an opinion on the scope of remedial work in respect of the items of complaint. There is no evidence of any form of written instruction to Mr Miller. On the contrary he gave evidence that he was approached by Mr Stefano Boni who occupies a neighbouring office to Mr Miller, to provide an opinion.
(3)The information that he was provided with in order to arrive at his opinion was '… the construction drawings and '…a few - various photos' (ts 37 29 June 2020). In0160addition, he stated that 'then we [he and Mr0160Stefano Boni] just discuss what would be appropriate remedy works that would work'. He0160estimated that the discussion lasted for 'probably an hour'. The orders made on 18 December 2019 were put to Mr Miller in cross-examination and he stated that he recognised the orders but was not provided with the Tribunal reasons delivered on 18 December 2019 (ts 37, 29 June 2020). Mr Miller gave evidence that he had read a number of documents dealing with SAT 'meetings' to identify the issues but then explained that the 'issues' were identified from his discussions with Mr Stefano Boni. Counsel for the respondent put to the Tribunal that para 3 of Mr Miller's affidavit identifies that he was provided with 'transcript' (ts 37, 29 June 2020). Mr Miller however, expressly denied he had been given the transcript of the Tribunal reasons and identified that he had been provided with the Tribunal's orders made on 18 December 2019. Contrary to the respondent's counsel's submission, para 3 of Mr Miller's affidavit does not state that he was provided with the 'transcript'. Rather, he states at para 3 of his affidavit that he was provided with 'the decision of the State Administrative Tribunal dated 18 December 2020 (sic)'. It is obvious from the Tribunal's orders on that date, that the precise defects are not identified therein. They are identified in the reasons, the subject of the transcript. Further upon questioning by the Tribunal Sessional Member, Mr Marshall, it was evident that Mr Miller was unaware that the vapour proof membrane to the parapet walls and facades of the pergola areas (north and south) and above the carport, and the balustrading above the alfresco was missing (part of complaint item 1) and that the Tribunal found that those areas should have been wrapped in the Wrap (ts 42, 29 June 2020). It was obvious from this exchange that Mr Miller had not read the Tribunal's reasons delivered on 18 December 2019. Mr Miller was at a significant disadvantage when giving evidence in this proceeding. His understanding of the issues was entirely based upon his discussions with Mr Boni, his reading of the construction plans dated 10 May 2017 and 14 June 2017 and the Tribunal's orders made on 18 December 2019. This explains the obvious disjunct between Mr Miller's opinion attached to his affidavit (pages 72-106 of Exhibit 29) and the issues before the Tribunal on 29 and 30 June 2020.
The Tribunal declines to accept the evidence of Mr Miller in this proceeding. Mr Miller's evidence to a large extent was irrelevant as it sought to debate issues in respect of which the Tribunal had made its findings. In short, he was not properly or fully instructed. Further, Mr Miller provided insufficient detail in his scope of work which could be costed, that is, no identification of lineage, meterage, or quantities of anything required for the performance of the necessary remedial work.
Mr Ockerdon's evidence
Mr Ockerdom provided calculations of costs purportedly based on Mr Miller's report as the 'scope of works'. The Tribunal does not accept Mr Miller's evidence is a reliable scope of works in this proceeding. That renders Mr Ockerdon's evidence unreliable in any event. Further, Mr Ockerdon's evidence in written (pages 109-119 of Exhibit 29) or oral form bears little correlation to Mr Miller's report and Mr Miller's evidence in the main. Mr Ockerdon's evidence was incomplete in many respects. One example is that his calculation of the cost of scaffolding does not include any delivery, erection, demobilisation and collection cost.
The evidence of Mr Rees-Mogg and Messrs Posthuma and Corlson
The Tribunal finds that Mr Rees-Mogg's evidence was detailed, specific and based upon the findings made by the Tribunal. The Tribunal accepts that Mr Rees-Mogg is sufficiently experienced and knowledgeable to prepare a reliable and accurate scope of works to remediate the defective work. The Tribunal finds that generally Messrs Posthuma and Corlson gave specific and detailed evidence in calculating the quantities and costs of material and labour of the scope of work identified by Mr Rees-Mogg.
Unfortunately, evidence of the scope of necessary remedial work and the costs of the same have not been presented by reference to the complaint item numbers. The Tribunal has therefore considered the evidence of the scope of work and the costs below under headings of the type of work involved and referenced the same to item numbers to establish the relevance of the work in this proceeding.
Complaint item 3 water ingress - carport and balcony/alfresco ceilings
The respondent's position is that the alfresco/balcony and carport ceilings could be re-flushed and repainted with minimal replacement. The Tribunal prefers the evidence of Mr Rees-Mogg on this issue. Mr Miller did not go to the site to inspect the state of the ceilings. Mr Rees-Mogg did go to the site and gave evidence that the ceilings could not be reused because they had been the subject of three winters' worth of rain and required removal. In his view, re-fixing and re-flushing the ceilings would likely peel off and that many of the ceilings looked like they were likely to collapse or break when handled. The Tribunal considers that the applicants are entitled to a certain remedy rather than an uncertain remedy. Although Mr Ockerdon is familiar with the site (as he was the supervisor of the trades during the respondent's construction of the same), there is no evidence that Mr Ockerdon had been to the site immediately before he prepared his report. The Tribunal does not accept Mr Ockerdon's evidence as against Mr Rees-Mogg's more qualified and experienced evidence that is based on an examination of the site. The Tribunal finds that the ceilings to the carport and balcony/alfresco must be replaced. Therefore, the Tribunal finds that the ceilings to the carport and balcony/alfresos must be demolished and reinstated as allowed for by the evidence of Messrs Posthuma and Corlson. The same applies to water damaged eaves lining sheets.
Complaint item 1 water ingress window flashings and internal general
The Tribunal concludes that no sum should be paid by the respondent in respect of water ingress to the internal habitable areas of the dwelling via the windows. The alleged failure to flash the windows or flash the windows correctly was withdrawn along with the consequential water damage to the habitable areas of the dwelling. The withdrawal of the window flashing complaint followed a period when the windows were remedied before the hearing in 2019 which the applicants considered resolved the water ingress via the windows. Mr Rees-Mogg was not convinced that the flashings were proper or adequate but the complaint about the window flashings was withdrawn and not before the Tribunal. The withdrawal of the flashing of the windows issue has an impact on the external scaffolding cost. This is dealt with below.
Complaint item 4 - ensuite bathroom lack of fall to drain and tiling
This was the most contentious issue. Mr Miller's evidence that the lack of fall to the drain should be remediated by installing a shower screen and door is an example of Mr Miller not being informed of the Tribunal's findings and the reasons given on 18 December 2019. Further, it does not resolve the defect because water from the floor beneath the towel rail does not fall to any drain and must do so.
The reason the issue was so hotly contested is because it is an expensive defect to remediate. As stated, the ensuite bathroom is an open shower with no hob, screen or door. In such a bathroom, the whole of the floor must be waterproofed and must have a fall to a drain.
The necessary remedial work now required is to demolish the tiles, remove the bathroom fittings, re screed the floor with falls to the drains, waterproof the whole of the bathroom floor, and reinstate the tiles and fittings. The Tribunal accepts the evidence of Mr Rees-Mogg and Messrs Posthuma and Colson, save for the cost of a new drain which the Tribunal finds is not necessary.
Complaint item 3 BAL 29 compliance - Velux flyscreen, ember flashing, range hood and gutter ember protection
Complaint item 10 ember guards
The Tribunal rejects Mr Miller's designs for essentially perforated metal boxes over the areas protruding from the roofline. In the case of the Velux windows, Mr Miller's metal 'box' construction would destroy the point of skylight windows which open outwards. Further, the construction of large metal boxes over those areas and over the range hood flume substantially and unnecessarily detract from the design of the home. Mr Miller's designs are neither necessary nor reasonable.
There is a simple less expensive solution for the Velux windows in terms of flyscreening and that is to remove the non-metal flyscreening and simply install metal gauze flyscreen in its place at a relatively minor cost of $650 as identified by Mr Rees-Mogg and Messr Posthuma and Corlson.
As to the flashings or trim around the Velux windows and protrusions to the roofline including the range hood flume, those items require relatively minor work of installing metal trim to ensure a gap of no more than 2mm to prevent the ingress of embers to the roof along with a metal gauze sleave to other protrusions as advanced by Mr Rees-Mogg and Messr Posthuma and Corlson.
As to the range hood flume above the roofline, a metal gauze surround can be installed as advanced by Mr Rees-Mogg and Messrs Posthuma and Corlson.
Complaint item 1 water ingress lack of Wrap membrane beneath Scyon Matrix
Complaint item 3 BAL 29 compliance
The Scon Matrix to the parapet walls and facades of the pergola areas (north and south) and above the carport, and the balustrading above the must be demolished and replaced. The Wrap must be installed and then the Scyon Matrix cladding must be reinstated. The installation of the Wrap also assists to ensure compliance with BAL 29 (complaint item 3).
The Tribunal accepts Mr Rees-Mogg's measurements and scope of works and Messrs Posthuma's and Colson's evidence of the cost to demolish, wrap the relevant building elements and reinstate the Scyon Matrix cladding. Because the scaffolding is a cost that is relevant to a number of items, that is considered separately below.
Complaint item 1 water ingress blocked cavities
Complaint Item 3 - BAL 29 compliance
Exhibit 6 identifies the agreed method of creating a gap to the underside of the eaves linings and complying with BAL 29 so as to ensure embers do not enter the gap and create a fire in the eaves, as found by the Tribunal. Exhibit 6 was also agreed to by Mr Miller. The Tribunal accepts the evidence of Mr ReesMogg and Messrs Posthuma and Coulson on the cost of remediation in accordance with Exhibit 6.
Complaint item 8 - HRV repairs
The cost of the repairs, that is opening the ceilings or panels to correct the connections of the tubes or to ensure the connections are correct, is not substantial and the Tribunal accepts the applicants' evidence and allows for four areas to be opened as proposed by Messrs Posthuma and Corlson. The substantial cost is the repainting of all of the ceilings throughout to ensure that there is no discolouration in the ceilings and also the addition of mobile scaffolding required for those purposes. These are essentially make good costs but necessary make good costs. The Tribunal accepts the evidence of Mr ReesMogg and Messrs Posthuma and Coulson on the cost of remediation of this complaint item.
The respondent contended that only one area should be allowed for - the area in the pantry which had been the subject of specific evidence and examination following Mr Katafoni's necessary destruction of that ceiling to investigate the fitting of the tubing. The proceeding as at 18 December 2019 was part heard and Exhibit 4 and 4A clearly identify multiple areas where the HRV units are positioned. The Tribunal allows for the whole amount as sought by the applicants.
The Tribunal does not allow the sum of $650 at for complaint item 8 referred to as 'fix HRV' in the report by Messrs Posthuma and Colson because there is no evidence as to what was required to be fixed. Further, as the HRV unit was supplied by the applicants, if the unit itself is defective (rather than the installation by the respondent), the respondent is not liable for the costs associated with the repair of the HRV unit. There was no evidence in any event that the HRV unit itself was defective in any respect.
Complaint item 5 – small holes to tiles to guest ensuite bathroom
There is no evidence of the cost of remediating item 5. The Tribunal makes no allowance for the cost of that remedial work, noting that it is minor in nature.
External scaffolding
Because the Tribunal has concluded that the flashing to the windows is not before the Tribunal and therefore the need for scaffolding above 1.8 meters is now not necessary, Messrs Posthuma and Colson's costs for the scaffolding of $9,100 plus GST is not sustainable and that was agreed by them.
There is no specific evidence of what that reduced costing might be. Using the information and evidence to hand and accepting the concession that the costs must be less than $9,100 plus GST, the Tribunal allows $3,000 for the fixed external scaffolding, based upon the scaffolding being hired for five weeks along with the cost of delivery, erection, demobilisation and collection at the conclusion of the five week period. The sum of $3,000 over five weeks calculates at $600 per week. The respondent's Kennards quotation ($240-$350 per week, hire only), does not include delivery or collection and does not include erection and demobilisation of the same. The Tribunal considers that the cost of delivery, erection, demobilisation and collection will more probably than not amount to approximately $600 per week which allows for $240 to $350 hiring per week plus the additional necessary costs. The Tribunal therefore allows the sum of $3000 for external scaffolding.
Sundries
The Tribunal makes no allowance for downpipe brackets replacement, as there is no evidence to support the necessity for such a cost.
The Tribunal makes no allowance for a new drain and to refit the ensuite bathroom, as the existing is not defective and can be reused as stated above.
The Tribunal does not allow for painting to two new downpipes at $260 as there is no evidence of the necessity of such cost.
The Tribunal therefore concludes that the following costs are reasonable and necessary to complete the scope of works identified by Mr ReesMogg and supplemented by Messrs Posthuma and Corlson:
•external scaffolding - $3,000
•Sycon Matrix cladding demolition - $4,030
•carport, eave sections and balcony/alfresco ceiling demolition $1,430
•electrical allowance to disconnect and reconnect recessed downlights/General Power Outlets to facilitate removal of carport ceiling and bathroom retiling and allowance to store any disconnected items on site for reuse - $1,300
•plumbing allowance to disconnect and reconnect plumbing fittings and fixtures to facilitate bathroom retiling work and installation of the cover plates allowed to store any disconnected items on site for reuse $1,300
•carpentry or roof plumbing to install custom flashings to eaves, Velux windows to room and other openings to roof cover $1,820
•tiling removal and disposal of the wall and floor tiles to the entire bathroom work excluding splashbacks but including careful demolition not to damage wallpaper and to protect all components from damage - $1,560
•tiling supply and install new tiling to the ensuite bathroom in a similar style and quality as existing new tiling work allowance for the entire bathroom to be designated wet area and appropriate falls to be created in accordance with Building Code of Australia $4,918
•painting prepare and paint the ensuite walls not covered by tiles and wallpaper $260
•waterproofing $1,300
•shower screen remove and replace $650
•ensuite wall realign 1200 millimetre high tile stud walls $650
•Scyon Matrix cladding supply and install including Wrap $12,740
•painting - prepare and paint façades for Scyon Matrix cladding $1,976
•flashing for Scyon Matrix cladding $650
•capping Scyon Matrix cladding $1,170
•repair to beams to alfresco $520
•preparation for metal flashing or trim installation including trimming of eves to allow for flashing or trim as identified in Exhibit 6 $780
•supply and install flashing or trim as provided for by Exhibit 6 $1,560
•repair and replace damaged sections to carport and balcony/alfresco ceilings and water damaged eaves $3,562
•preparation for flashing or trim installation including neatly trimming carport and alfresco soffits as provided for by Exhibit 6 $650
•flashing or trim supply and install the same as provided for by Exhibit 6 $2,080
•prepare and paint eave sections, carport and balcony/alfresco ceilings to similar colour and finish as existing $1,170
•PVC pipe penetrations - sheathing the existing PVC plumbing stack pipe with pre-painted metal complete with 2 millimetre aperture gauze piped to match roof colour $352
•Velux roof lights supply and install flashing or trim $1,950
•Velux roof light over stairs remove and replace Velux window gauze from existing and replace with metal gauze of no greater than 2 millimetre aperture $650
•supply and install custom metal gauze to cover range hood exhaust to roofline $300
•ember guard install 2 metre aperture gutter/ember guard to upper gutters for BAL compliance $2,250
•plasterer - to create openings to all HRV unit ducts - $260
•plasterer - repair to flush and sand ceilings/panels to close plaster openings following repair to HRV unit ducts and tubes connections $1,040
•prepare and paint throughout where necessary following repair to HRV unit ducts and tubes connections $3,374
•internal scaffolding tower to complete HRV unit repairs and make good works $1,950
There was no evidence from Mr Manfredo Boni that he or any registered building contractor with whom he was involved would actually undertake any work. The respondent asserted that it could engage Mr Manfredo Boni to perform the remedial work ordered by the Tribunal. There was no evidence to support that contention or that the respondent could engage any person to undertake the precise remedial work ordered by the Tribunal. There was no evidence that the respondent would cause its employees to undertake the work. Mr Ockerden was a mere employee of Mr Manfredo Boni and the Tribunal does not rely on that evidence to establish that Mr Manfredo Boni would actually perform the remedial work as ordered by the Tribunal. Mr Ockerdon gave confusing evidence and generally the Tribunal finds him to be an unreliable witness in respect of the necessary detail of the remedial work and the cost of the same. Further, there is no evidence that Mr Manfredo Boni will in fact supervise the remedial work in any event.
The Tribunal therefore concludes that a building remedy order as provided for by s 36(1)(b) of the BSCRA Act is preferable to an one provided for by s 36(1)(a) of the BSCRA Act. The order to pay the remedial work costs not only disposes of the proceeding but any future dispute between the parties concerning the quality and proficiency of the remedial work and substantial compliance with the order. Given the lengthy history of this proceeding the Tribunal concludes that an order for the payment of the cost of the remedial work is preferable.
The Tribunal therefore allows the sum of $61,202 plus 10% GST which amounts to $67,322 in respect of the cost of the necessary remedial work to remediate the remaining complaint items as found.
Orders
The Tribunal now makes the following final orders in this proceeding:
1.The respondent shall pay to the applicants the sum of $67,322 by 30 November 2020.
2.The proceeding is otherwise dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS N OWEN-CONWAY, MEMBER
30 OCTOBER 2020
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