KOS and DND BUILDING CO PTY LTD - [2020] WASAT 95

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   KOS and DND BUILDING CO PTY LTD [2020] WASAT 95
MEMBER:   MS C BARTON, MEMBER
MR R AFFLECK, SENIOR SESSIONAL MEMBER

HEARD:   17 MARCH 2020, 29 APRIL 2020 AND 26 MAY 2020
DELIVERED          :   18 AUGUST 2020
FILE NO/S:   CC 926 of 2019
BETWEEN:   JUSUF KOS
First Applicant
FADILA KOS
Second Applicant
MUSTAFA KOS
Third Applicant
SAFETA KOS
Fourth Applicant
AND
DND BUILDING CO PTY LTD
Respondent

Catchwords:

Building service complaint - Whether unsatisfactory building work - Monetary order sought by owner - Whether irretrievable breakdown in relationship - Loss of confidence in builder - Form of building remedy order - Specificity of order to remedy

Legislation:

Building Act 2011 (WA), s 3
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(1), s 11(1)(d), s 36(1), s 36(1)(a), s 36(1)(b), s 36(2), s 38(1)(a), s 38(1)(b), s 51
Building Services (Complaint Resolution and Administration) Regulations 2011 (WA), reg 5
State Administrative Tribunal Act 2004 (WA), s 60(2)

Result:

Application successful

Category: B

Representation:

Counsel:

First Applicant	:	W Vogt
Second Applicant	:	W Vogt
Third Applicant	:	W Vogt
Fourth Applicant	:	W Vogt
Respondent	:	P Monaco

Solicitors:

First Applicant	:	Vogt Graham Lawyers
Second Applicant	:	Vogt Graham Lawyers
Third Applicant	:	Vogt Graham Lawyers
Fourth Applicant	:	Vogt Graham Lawyers
Respondent	:	GV Lawyers

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

Gemmill v Sanders [2018] WASC 179
Hippydayze Pty Ltd and Mener Group Pty Ltd [2019] WASAT 92
Jennings and Howitt [2019] WASAT 133
Lewis and Waco Pty Ltd [2016] WASAT 127
Nelson v Mardesic (1998) 22 SR (WA) 42
The Owners of One Brighton Strata Plan 51948 and Pindan Pty Ltd [No 2] [2020] WASAT 3

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

A dispute arose between the parties concerning the construction of a residential building at 33A David Street, Yokine (property). The registered proprietors of the property are Jusuf, Fadila, Mustafa and Safeta Kos (applicants). The respondent is DND Building Co Pty Ltd (builder).
The applicants lodged a building service complaint with the Building Commissioner on 23 November 2018 alleging faulty or unsatisfactory building work comprising 13 items (complaint). The Building Commissioner referred the complaint to the Tribunal under s 11(1)(d) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (Act).
Of the 13 complaint items, the builder has conceded items 1, 4, 5, 6, 9, 10 and 12. The builder acknowledges that remedial works are required in respect of items 3, 8, and 11 and is prepared to undertake those works. The applicants are seeking a monetary order in respect of the complaint items because they assert, amongst other reasons, that there has been an irretrievable breakdown in the relationship with the builder. The remaining items in dispute, and for which the applicants are seeking a monetary order, relate to:
•item 2 -…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] WASAT 95
Decision Date: 18 AUGUST 2020

CaseChat Overview and Summary

In this case, the Building Services Tribunal of Western Australia addressed a dispute between KOS and DND Building Co Pty Ltd, where the owner sought monetary compensation for unsatisfactory building work. The Tribunal was tasked with determining whether the relationship between the parties had irretrievably broken down, whether the owner had lost confidence in the builder, and the form and specificity of any building remedy order. The Tribunal had to decide on the detailed steps required for the builder to remedy the identified issues, ensuring that all identified unsatisfactory work was properly addressed.

The key legal issues that the Tribunal needed to resolve included the interpretation of the statutory provisions related to building service complaints under the Building Services (Complaint Resolution and Administration) Act 2011 (WA). Specifically, the Tribunal had to determine the appropriate form of the building remedy order, ensuring that it was specific enough to be enforceable while allowing for some flexibility in the implementation of the remedial works. Additionally, the Tribunal needed to assess whether the breakdown in the relationship between the parties was due to the builder's unsatisfactory work and whether this justified a monetary order in favour of the owner.

The Tribunal concluded that the builder's work was indeed unsatisfactory in several respects and that the relationship between the parties had broken down irretrievably. The Tribunal detailed specific steps that the builder must take to remedy the identified issues, ensuring that all identified unsatisfactory work is addressed to a satisfactory standard. The detailed nature of the orders was intended to provide clarity and enforceability while allowing for some flexibility in the implementation of the remedial works. The Tribunal also noted that the owner had the right to apply for costs, subject to certain procedural requirements.

The Tribunal ordered the builder to remedy specific building defects by a set deadline and detailed the exact steps to be taken for each identified issue. The builder was required to make good any damage caused during the remedial works and the owner was granted the right to apply for costs related to the complaint resolution process. The detailed orders provided a clear and enforceable framework for the builder to address the unsatisfactory building work, ensuring that the owner's property was brought to an acceptable standard.

Orders

Orders of the court

The Tribunal orders:

1. By 5.00 pm on 30 November 2020, pursuant to s 36(1)(a) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), the respondent is to remedy the following items:

(a) the items it has agreed to remedy, being complaint items 1, 4, 5, 6, 9, 10 and 12; and

(b) the items that the Tribunal has identified as unsatisfactory, being complaint items 2, 3, 7, 8, 11 and 13.

2. To remedy the items referred to in order 1(a), the respondent is required to:

(a) in respect of item 1, repair the entire width and height of the two reveals of the rear sliding door so as to ensure that the texture coated surface is continuous to all corners of the reveals, making good all affected and adjacent surfaces, as required;

(b) in respect of item 4, install a suitable overflow device to the upper level gutter / rain head, and ensure that the gutter is adequately sealed at the junction of the rain head, making good all affected and adjacent surfaces as required;

(c) in respect of item 5, reform the movement joint at the junction of 33A and 33 David Street to extend through the full thickness of the render and texture coat and repair the adjacent cracking, making good all affected and adjacent surfaces as required;

(d) in respect of item 6, repair the ceilings at locations eight and nine to achieve a uniform and consistent surface finish with the remainder of the ceilings, making good all affected and adjacent surfaces as required;

(e) in respect of item 9, install provision for exhaust of a gutter, consistent with the NCC at 3.5.2.5, making good all affected and adjacent surfaces;

(f) in respect of item 10, install provision for overflow of box gutters at the front of the building, consistent with the AS 3500.3, making good all affected and adjacent surfaces; and

(g) in respect of item 12, connect flexible duct to the existing section of duct and roof penetration, so that the range hood extracts air, as designed, making good all affected and adjacent surfaces as required.

3. To remedy the items referred to in order 1(b), the respondent is required to:

(a) in respect of item 2:

(i) remove tiles on the balcony to investigate the integrity of the waterproofing membrane and, if it is not intact, replace the membrane to prevent water leaching from the balcony, making good all affected and adjacent surfaces as required; and

(ii) remedy the excessive efflorescence and cracking on the external face of the render, making good all affected and adjacent surfaces as required;

(b) in respect of item 3, install a suitable movement joint at both the left and right sides of the stairwell walls, removing and replacing all areas of drummy plaster that exceed millimetres by 200 millimetres in an area of 4m2 of wall, making good all affected and adjacent surfaces as required;

(c) in respect of item 7, remedy the roof framing identified in the complaint as defective so that it complies with AS 1684.2, making good all affected and adjacent surfaces as required;

(d) in respect of item 8, install overflow provision to high fronted eaves gutters, consistent with NCC 3.5.2.4, making good all affected and adjacent surfaces;

(e) in respect of item 11, install spreader pipes to the upper level downpipes consistent with Australian Standard HB 39:2015, making good all affected and adjacent surfaces as required; and

(f) in respect of item 13:

(i) verify, by drilling through the floor of the meals areas, the extent and depth of cementitious grouting necessary to address the lack of dowels (or lack of footing under the slab joint), the lack of pad footing under the column, and the lack of cover to the reinforcement in the slab;

(ii) underpin the concrete slab and footings with cementitious grout, designed and supervised by an expert in the work of cementitious grouting, allowing for reasonable oversight by a structural engineer;

(iii) remove the timber flooring and add suitable topping to make the floor in the meals area level with adjacent surfaces;

(iv) if, and only if, the door frame sill upstand is found, by measurement and calculation, to be so reduced as to be defective, then the entire framing is to be removed and replaced so as to provide the necessary frame height relative to the finished floor; and

(v) remove and replace the entire ground floor area of timber flooring (~100m2) on completion of the other remedial works, making good all affected and adjacent surfaces as required.

4. The respondent is to carry out the remedial work the subject of this order in a proper and proficient manner and make good any damage caused by the carrying out of the remedial work.

5. The applicants have liberty to apply within 21 days from the date of this order to file with the Tribunal and give to the respondent an application for costs, including written submissions and any supporting documentation.

6. If the applicants elect to make an application for their costs, the respondent has 14 days from the date of the application to file with the Tribunal, and give to the applicants, written submissions and any supporting documentation in reply.

7. Subject to any further order of the Tribunal, an application for costs will be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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