Lampman and AFRA Constructions Pty Ltd - [2014] WASAT 27

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)

CITATION: LAMPMAN and AFRA CONSTRUCTIONS PTY LTD [2014] WASAT 27

MEMBER: MS A DAVIES (SENIOR SESSIONAL MEMBER)
MR C MARSH (SESSIONAL MEMBER)

HEARD: 17, 18 DECEMBER 2013
AND 3, 4 FEBRUARY 2014

DELIVERED : 13 MARCH 2014

FILE NO/S: CC 1300 of 2013

BETWEEN: DANIEL LEO JOSEPH LAMPMAN
MARIE BOLEN-LAMPMAN
Applicants
AND
AFRA CONSTRUCTIONS PTY LTD
Respondent

Catchwords:

Building service complaint Whether work carried out in a proper and proficient manner or is faulty or unsatisfactory Workmanship Incomplete work Dirty marks Painting Grouting Home building work contract complaint Breach of contract for failing to undertake certain works Commencement date Completion date Breach of contract for failing to complete on time Compensation for loss or damage Assessment of loss Whether invoices payable

Legislation:

Building Code of Australia
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3(1), s 5(1), s 5(2), s 9, s 11(1), s 13(1), s 13(3), s 36(1), s 36(1)(a), s 38(1), s 38(1)(a), s 41(2)(c), s 41(2)(d)(i), s 43(1)
Home Building Contracts Act 1991 (WA), s 3(1), s 7, s 8, s 17, s 20, Sch 1

Result:

Applicants' application partially successful

Summary of Tribunal's decision:

The parties signed a standard HIA HBCA lump sum building contract form 16G July 2007, dated 30 January 2011, for a single storey dwelling. The dwelling has been erected and substantially completed.
The applicants sought a building remedy order, damages for breach of contract and a declaration that certain invoices were not payable.
Many of the workmanship items were complained about because of the quality of the finish to the work. Some items were complained about because the work had been damaged. Other items were complained about because an aspect of the work was incomplete. A significant number of items were complained about because there was dirt or dirty marks over the work. The respondent argued that cleaning would be attended to at the end of the contract, which had not yet occurred. There was no evidence (neither a provision in the contract, nor evidence as to standard practice) indicating what cleaning was required to be done as part of a final clean.
The Tribunal considered that s 38(1)(a) of the Building Services (Complaint Resolution and Administration)Act 2011 (WA) does not necessarily require that the regulated building service be complete in order for it to be the subject of a building remedy order, because what is required is for the Tribunal to be satisfied that the regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory. This requires an assessment of relevant evidence to reach a conclusion about the state of the regulated building service in the circumstances.
The Tribunal found that most of the items complained about had not been carried out in a proper and proficient manner or were faulty or unsatisfactory, and ordered that the respondent rectify those items. However, the Tribunal did not order the respondent to rectify the removal of the plastic protection covers on windows. The Tribunal accepted evidence that this was a task that would not be done until preparing the house to be presented to the owners, and concluded that this regulated building service had not been commenced. It could therefore not be unsatisfactory. There was no corresponding claim for damages for failing to perform this task.
An issue in dispute was whether paving, fencing, landscaping and the installation of a letterbox, a clothesline and air conditioning was part of the contract. The applicants claimed $41,120 in damages for the respondent's failure to complete these works. The Tribunal found that these items did form part of the contract and that the respondent's unwillingness to perform the incomplete work amounted to a repudiation of the contract by the respondent. Further, the Tribunal found that the parties had thereafter treated the contract as at an end and therefore that practical completion had not been reached. In assessing compensation payable under s 41(2)(d)(i) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), the Tribunal considered that the applicants were entitled to the works under the contract, including the works not undertaken, to be performed for the contract sum. In the circumstances, this involved an assessment of the reasonable cost of now having the work completed in accordance with the contract, less the amount of the contract sum not paid. The Tribunal found that the applicants were entitled to compensation in the amount of $11,366 including GST for this breach of contract.
The applicants also claimed $39,851.84 in damages for delay.
Pursuant to paragraph 9(a) of the schedule to the contract, the time to commence works was 'upon settlement of the land'. The Tribunal accepted that the land settled on 6 May 2011. However, the contract was conditional upon, inter alia, a building licence being issued within 45 working days from the date of the contract. The building licence was not granted until 14 December 2011. Neither party addressed clauses 6 and 22 of the contract, which specify the consequences of nonfulfilment of conditions, and there was no evidence going to any failure by the respondent to comply with its obligations under the contract to obtain planning approval and a builders' licence. The Tribunal found that the contract was conditional on, inter alia, a building licence being issued within 45 working days from 30 January 2011, which date was 4 April 2011. However, it was common cause that the contract remained on foot despite the condition not being met within time.
Pursuant to clause 9(b) of the contract, the time to complete the contract was '8 months from commencement on site'.
The Tribunal found that work commenced on site on or around 24 February 2012 and considered that, while the respondent may have been in breach of contract for not having commenced on site until 24 February 2012, the applicants had not established if or what any such breach was.
Further, the Tribunal found that there were no valid extensions of time under the contract and that eight months from 24 February 2012 was 23 October 2012, so that the time for completion was 23 October 2013. The Tribunal assessed that the loss of rent and loss of National Rental Affordability Scheme incentive amounts for the period from 23 October 2012 to 4 February 2012 was $24,124.70.
Finally, the applicants sought declarations that two invoices totalling $8,524.50 were not payable. The Tribunal found that the notice requirement under the contract was not complied with by the respondent and therefore that the respondent did not become entitled, under clause 12(b) of the contract, to vary the contract in the terms set out in the invoices. It was not contended by the respondent that there was any variation documentation signed by both parties, as required under s 7 of the Home Building Contracts Act 1991 (WA), nor that there was an oral agreement or conduct by the applicants that varied the contract. Accordingly, the Tribunal found, pursuant to s 41(2)(c) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), that invoices 3139 and 3128 were not payable by the applicants to the respondent.

Category: B

Representation:

Counsel:

Applicants: Mr M Easthope
Respondent: In person

Solicitors:

Applicants: Culshaw Miller Lawyers
Respondent: In person

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

Hadley v Baxendale (1854) 9 Exch 341
Robinson v Harman (1848) 154 ER 363
Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272, 286
Vitte and Studio 8 Builders & Designers Pty Ltd [2013] WASAT 43
Waldron and AFRA Construction Pty Ltd [2013] WASAT 207
Wenham v Ella (1972) 127 CLR 454
REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

This dispute concerns the construction of a single storey house at No 11 (Lot 254) Galloway Drive, Bridgetown (Property). The applicants, Mr D Lampman and Ms M Bolen‑Lampman, are the owners of the Property. The respondent, AFRA Constructions Pty Ltd, was the registered builder of the Property.
The applicants bought the land upon which the Property was built from a developer, Yaran Property Group (Yaran), as part of a package pursuant to which the Property became part of the Australian Government's National Rental Affordability Scheme (NRAS).
The parties signed a standard HIA HBCA lump sum building contract form 16G – July 2007, which is dated 30 January 2011. The parties agreed that the Property would be built for a total sum of $255,000 (Contract Price or Contract Sum).
The parties also agreed that the Contract Price would be paid progressively. The applicants have paid the deposit and the first four progress payments amounting to $233,325, but not the amounts of $11,475 payable at practical completion and $10,200 payable at handover.
The applicants seek an order:
1)that the respondent to rectifies certain building services;
2)that the respondent pay to the applicants damages in the amounts of $41,120 for works not performed and $39,851.84 for delay; and
3)declaring that variation invoices 3126 and 3139 are not payable.
In response, as well as specific submissions in relation to individual items of workmanship, the respondent says that the respondent is not required to rectify any of the building services complained about, in essence, because the applicants stopped paying. Further, the respondent denies that it is liable for any part of the damages in the amount of $41,120 on the basis that the works not performed do not form part of the building contract. In relation to the claim of damages for delay, the applicants claim loss of rent and loss of NRAS amounts over an 87 week period. The respondent's position is that only about eight weeks loss of rent (not including NRAS amounts) is owed by the respondent to the applicants. In relation to the variation invoices 3126 and 3139, the respondent's position is that these are payable by the applicants to the respondent. Indeed, the respondent submits that one other variation invoice is also payable by the applicants to the respondent. Finally, the respondent contends that Yaran is responsible for the problems encountered in this proceeding.

Legislative scheme

This proceeding arises out of a complaint made by the applicants to the Building Commission on 23 August 2013 under s 5(1) and s 5(2) of the Building Services (Complaint Resolution and Administration) Act2011 (WA) (BS(CRA) Act).
Pursuant to s 5(1) of the BS(CRA) Act, 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.
A 'regulated building service' is defined in s 3(1) of the BS(CRA) Act.
Pursuant to s 5(2) of the BS(CRA) Act, an owner or builder under a home building work contract may make a complaint to the Building Commissioner about a matter referred to in s 17 or s 20 or Sch 1 cl 5 of the Home Building Contracts Act1991 (HBC Act). A matter referred to in s 17 of the HBC Act includes a claim that there has been a breach of contract not being a breach in respect of which a building remedy order may be made.
A 'home building work contract' and 'home building work' are defined in s 3(1) of the HBC Act.
Having accepted a complaint, the Building Commissioner is required to cause an investigation by an authorised officer under s 9 of the BS(CRA) Act and, after having regard to a report of the authorised officer, may determine that one of the alternative courses of action available under s 11(1) of the BS(CRA) Act is to apply.
The complaint under s 5(1) and s 5(2) of the BS(CRA) Act was transferred to this Tribunal on 1 October 2013.
The Tribunal's powers upon referral to it of a building service complaint are set out in s 38(1) of the BS(CRA) Act including in the following terms:
(1)If the Building Commissioner refers a building service complaint to the State Administrative Tribunal, the Tribunal may ‑
(a)if the Tribunal is satisfied that the regulated building service that is the subject of the building service complaint has not been carried out in a proper and proficient manner or is faulty or unsatisfactory, deal with the building service complaint by making a building remedy order; or
(b)otherwise, decline to make a building remedy order.
A 'building remedy order' is defined in s 36(1) of the BS(CRA) Act and includes s 36(1)(a) pursuant to which an order may be made that a person who carried out a regulated building service remedy the building service as specified in the order.
The Tribunal's powers upon referral to it of a 'HBWC complaint' are set out in s 43(1) of the BS(CRA) Act including in the following terms:
(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.
A 'HBWC remedy order' in respect of a complaint by an owner under a home building work contract referred to in s 17 of the HBC Act is defined in s 41(2) of the BS(CRA) Act and includes:
1)s 41(2)(d)(i) pursuant to which an order may be made that a person pay specified compensation for loss or damage caused by any breach of the contract or of a provision of Part 2 of the HBC Act ; and
2)s 41(2)(c) pursuant to which an order may be made declaring that a specified amount is not payable to a person under the contract.
Again, a matter referred to in s 17 of the HBC Act includes a claim that there has been a breach of contract, not being a breach in respect of which a building remedy order may be made.

The hearing and findings

The hearing was held over four days on 17 and 18 December 2013 and 3 and 4 February 2014.
At the beginning of the first day of the final hearing the applicants' sought leave to withdraw item 166 in the Scott Schedule, and the item immediately below it, on the basis that it did not form part of the complaint filed with the Building Commission and transferred to the Tribunal. The Tribunal granted leave to do so.
Towards the end of the second day of the final hearing, the applicants also sought leave to withdraw items 45, 46, 47, 79, 138, 139, 141 and 165 in the Scott Schedule on the basis that these are items they are not pursuing in the Scott Schedule. A building services complaint, or some of the matters that form the subject of the complaint, may be withdrawn by the complainant (s 13(1) and s 13(3) of the BS(CRA) Act). The Tribunal granted leave to do so.
Having had the benefit of hearing both sides' submissions and the evidence, we set out our findings in relation to the workmanship issues, followed by the contractual issues (broadly in the order set out in the Scott Schedule).

Workmanship ‑ fundamental issues arising out of the respondent's submissions

The Tribunal only has the powers conferred to it by statute. In the context of a workmanship complaint, the BS(CRA) Act requires the Tribunal to determine whether work tasks performed have been carried out in a proper and proficient manner or are faulty or unsatisfactory. If an owner establishes that it is more likely than not that the work tasks have not been carried out in a proper and proficient manner or are faulty or unsatisfactory, then an owner may be entitled to a building remedy order. Whether a builder is entitled to payment in the context of a building services complaint is a separate matter, and the Tribunal will only have jurisdiction to deal with this separate matter, in the context of a workmanship complaint, if the builder has filed a complaint with the Building Commission which has then been transferred to the Tribunal and consolidated with the owner's complaint.
Accordingly, the Tribunal does not accept the submission made by Mr Fred Afrasiabi (Mr F Afrasiabi) on behalf of the respondent to the effect that the respondent could not be required to return to site to continue working to address any of the workmanship items because the applicants had stopped paying amounts that they were liable to pay under the building contract.
The respondent also argued in relation to some of the workmanship items, effectively, that the problems complained about would only be resolved at the end, just prior to handover, which has not yet occurred. It is common cause that handover has not yet occurred.
This raises the issue whether s 38(1)(a) of the BS(CRA) Act requires that the regulated building service be complete in order for it to be possible for the regulated building service not to have been carried out in a proper and proficient manner or be faulty or unsatisfactory. The answer to this question is not necessarily. Based on the ordinary and natural meaning of the words of s 38(1)(a) of the BS(CRA) Act, what is required is for the Tribunal to be satisfied that the regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory. This requires an assessment of relevant evidence to reach a conclusion about the state of the regulated building service in the circumstances.
Indeed, incompleteness of the regulated building service may itself be a basis for concluding that the regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory.
Further, the respondent's complaints about Yaran's conduct, which were to the effect that Mr Mal Afrasiabi (Mr M Afrasiabi) had trusted Yaran and that Yaran betrayed him, are not able to be considered in this proceeding because they are not technically relevant to this proceeding. This proceeding is between the applicants and the respondent. Apart from the BS(CRA) Act, the rights and liabilities as between the applicants and the respondent is determined by the building contract that was entered into by the parties. It is common cause that the building contract dated 30 January 2011 was entered into by the parties. However, the scope of the building contract is in issue and requires determination by the Tribunal in these proceedings. This is addressed later.

Workmanship ‑ specific items of complaint pursued by the applicants

Item 7: Living room ‑ cracks in the paintwork at the left hand side above the light switch

Mr F Afrasiabi, on behalf of the respondent, stated that he did not accept any aspects of the report of Mr Peter Edwin Butcher dated March 2013 (Report) and challenged his qualifications.
Mr Butcher is the principal building inspector of Be Safe Building Inspections. Mr Butcher stated that he has been a registered builder for 25 years and that he is also a qualified carpenter and building surveyor. He was straightforward and reasonable in his approach. The Tribunal accepts Mr Butcher as a competent, independent expert and a credible witness.
Mr F Afrasiabi is a director of the respondent who appeared by telephone on behalf of the respondent.
Mr F Afrasiabi also gave oral evidence during the hearing. While at times he gave evidence in a reasonable manner, at other times he was evasive. Overall, the Tribunal did not find him straightforward. The Tribunal concludes that the evidence of Mr F Afrasiabi must be treated with considerable caution.
More specifically, in relation to item 7, the respondent contested this item.
The Tribunal accepts Mr Butcher's evidence that there are such cracks in the paintwork, despite the Tribunal not having been shown any photographs of this, and his opinion as expressed in the Report and explained further in oral evidence that the cracks are unsatisfactory on the basis that the work is incomplete in that it should have been filled and finished.

Accordingly, the Tribunal finds that this regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act in that the finish to the paintwork is not to an acceptable standard.
The Tribunal also finds that the appropriate remedy is for the respondent to fill and paint the cracks in the paintwork in the living room at the left hand side above the light switch.

Item 8: Living room ‑ dirty hand marks over paintwork

The respondent contested this item. In cross-examination, Mr F Afrasiabi attempted to discredit Mr Butcher and reiterated that he did not accept Mr Butcher's Report.
The Tribunal does not accept that Mr Butcher is not qualified to write his Report. The Tribunal has concluded that Mr Butcher is a competent, independent expert and a credible witness.
In relation to some items, other than item 8, also involving dirty marks on paintwork, Mr F Afrasiabi's position was effectively that removing dirty marks over paintwork was a task that would not be done until final cleaning, just prior to handover.
The Tribunal accepts Mr F Afrasiabi's evidence that a final clean would have been done prior to handover of the Property. However, none of the evidence (neither the building contract nor oral evidence as to standard practice) indicates what cleaning was required to be done as part of a final clean.
The Tribunal also accepts Mr Butcher's evidence that there are dirty hand marks over the paintwork, despite the Tribunal not having been shown any photographs of this, and his opinion that the dirty marks over the paintwork are unsatisfactory as this is not an acceptable standard of finish.
The Tribunal prefers the evidence of Mr Butcher to that of Mr F Afrasiabi in relation to this item because Mr Butcher's evidence is specific and Mr F Afrasiabi's evidence is inconsistent, in that he made this point in relation to some dirty marks on painting but not others, and also that the Tribunal has found that the evidence of Mr F Afrasiabi is to be treated with considerable caution. Furthermore, ensuring and maintaining a standard of finish relates to the contractual task of painting, which could have been attended to by the painter or, indeed, the supervising builder in these circumstances at any time.
Accordingly, the Tribunal finds that this regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act in that the finish to the paintwork is not to an acceptable standard.
We accept Mr Butcher's opinion that these marks could be removed through cleaning.
The Tribunal also finds that the appropriate remedy is for the respondent to remove through cleaning all marks on the paintwork in the living room.

Item 10: Living room ‑ there is a crack down the plaster/front door frame at the left hand door reveal

The respondent contested this item. Mr F Afrasiabi had no questions for Mr Butcher about his evidence.
The Tribunal accepts Mr Butcher's evidence that there is a gap between the door frame and reveal, despite the Tribunal not having been shown any photographs of this, and his opinion that it is unsatisfactory as this is not an acceptable standard of finish.
Accordingly the Tribunal finds that this regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act in that the finish to the plaster/door frame is not to an acceptable standard.
We accept Mr Butcher's opinion that this crack could be made good by filling the gap or applying a 'quad' over the gap.
The Tribunal also finds that the appropriate remedy is for the respondent to make good the crack down the plaster/front door frame at the left hand door reveal in the living room.

Item 11: living room ‑ paint chips to the door frame at the entry to the passage

The respondent contested this item. Mr F Afrasiabi had no questions for Mr Butcher about his evidence.
The Tribunal accepts Mr Butcher's evidence that there are such chips, despite the Tribunal not having been shown any photographs of this, and his opinion that these chips are unsatisfactory. The Tribunal also considers that the nature of this item of complaint itself also establishes liability in that the door frame is damaged.
Accordingly, the Tribunal finds that this regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act in that the door frame is damaged and has not been made good.
We accept Mr Butcher's opinion that these chips could be filled and painted.
The Tribunal also finds that the appropriate remedy is for the respondent to fill and paint the chips to the door frame at the entry to the passage in the living room.

Item 18: Master bedroom ‑ smoke detector is not 300mm away from the wall

The respondent contested this item.
Mr Butcher explained that the smoke detector being closer than 300 millimetres to the wall is unsafe in that it will not be able to detect smoke. Mr Butcher also said that under 'the BCA' smoke detectors must be 300 millimetres away from the wall. Mr F Afrasiabi put to Mr Butcher that he is not an electrician and so could not comment. Mr Butcher replied that he has been applying 'the BCA' for years and knows what it requires.
The Tribunal accepts Mr Butcher's evidence that the smoke detector is not 300mm away from the wall, despite the Tribunal not having been shown any photographs of this. The applicants have not established that this is a requirement in the Building Code of Australia; however, the Tribunal accepts Mr Butcher's opinion, based on his experience, that it will not work properly so close to the wall. We therefore accept Mr Butcher's opinion that the installation of this smoke detector is unsatisfactory.
Accordingly, the Tribunal finds that this regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act in that the smoke detector has been installed in a way that it will not work properly.
The Tribunal also finds that the appropriate remedy is for the respondent to move the smoke detector in the master bedroom so that it is at least 300mm from the nearest wall.

Item 19: Master bedroom - marks on the south-east wall

The respondent contested this item. Mr F Afrasiabi had no questions for Mr Butcher.
The Tribunal accepts Mr Butcher's evidence that there are such marks over the paint, despite the Tribunal not having been shown any photographs of this, and his opinion that this is unsatisfactory in that this 'make good' aspect of the work that has not been attended to.
The preference as to evidence and reasoning in relation to item 8 are also applicable to this item.
Accordingly, the Tribunal finds that this regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act in that the finish to the paintwork is not to an acceptable standard.
We accept Mr Butcher's opinion that these marks could be removed through cleaning.
The Tribunal also finds that the appropriate remedy is for the respondent to remove, through cleaning all marks on the paintwork on the south‑east wall in the master bedroom.

Item 20: Master bedroom - cornice splays evident

The respondent contested this item. Mr F Afrasiabi asked Mr Butcher whether this issue was preventing occupancy. Mr Easthope submitted that the applicants will come back to the issue of whether the premises was fit for occupation once all of the items of complaint have been canvassed.
The Tribunal accepts Mr Butcher's evidence that a cornice splay is evident in this location; that is, there is a crack where the cornice meets the corner, despite the Tribunal not having been shown any photographs of this, and his opinion that this is unsatisfactory in that the repair and repainting necessary for this work to be made good has not been done.
Accordingly, the Tribunal finds that this regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act in that the installation of the cornice has not been finished to an acceptable standard.
The Tribunal also finds that the appropriate remedy is for the respondent to fill and paint the crack where the cornice meets the corner in the master bedroom.

Item 21: Master bedroom ‑ the cornice has a large paint bubble on the south wall

The respondent contested this item. Mr F Afrasiabi had no questions for Mr Butcher.
The Tribunal accepts Mr Butcher's evidence that there is a bubble of about 50 to 60 millimetres in size in this location, despite the Tribunal not having been shown any photographs of this, and his opinion that this is unsatisfactory because the bubble is visible.
Accordingly, the Tribunal finds that this regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act in that a bubble in the paintwork, which is visible, has not been made good so that the finish to the paintwork is not to an acceptable standard.
We accept Mr Butcher's opinion that this bubble could be removed, filled and painted.
The Tribunal also finds that the appropriate remedy is for the respondent to remove the large paint bubble on the cornice on the south wall in the master bedroom and then fill and paint the immediate area.

Item 22: Master bedroom ‑ there is a hole in the wall under the door buffer

The respondent contested this item. Mr F Afrasiabi had no questions for Mr Butcher about his evidence, although he did state that if the hole was there, it needed to be filled and painted.
The Tribunal accepts Mr Butcher's evidence that there is such a hole, despite the Tribunal not having been shown any photographs of this, and that the damage was likely caused by the door handle due to the door buffer having been installed after a hole had been knocked into the wall. The Tribunal also accepts his opinion that this 'unattended‑to damage' is unsatisfactory.
Accordingly, the Tribunal finds that this regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act in that the installation of a door buffer did not occur in time to prevent damage to the wall, and the damaged wall has not been made good.
The Tribunal also finds that the appropriate remedy is for the respondent to fill the hole in the wall under the door buffer in the master bedroom and paint the immediate area.

Item 23: Master bedroom ‑ dirty marks over the manhole cover

The respondent contested this item. Mr F Afrasiabi had no questions for Mr Butcher about his evidence.
The Tribunal accepts Mr Butcher's evidence that there are such dirty marks, despite the Tribunal not having been shown any photographs of this, and his opinion that the dirty marks are unsatisfactory in that the work has not been made good.
The preference as to evidence and reasoning in relation to item 8 is also applicable to this item.
Accordingly the Tribunal finds that this regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act in that the finish to the paintwork over the manhole is not to an acceptable standard.
We accept Mr Butcher's opinion that these marks could be removed through cleaning with a damp cloth.
The Tribunal also finds that the appropriate remedy is for the respondent to remove, through cleaning, the marks on the paintwork over the manhole cover in the master bedroom.

Item 28: Master bedroon – walk‑in robe ‑ top shelf of robe is unpainted

The respondent contested this item. Mr F Afrasiabi put to Mr Butcher that he did not know if it had been done, but that sometimes a robe can be kept as a timber feature. He asked 'could this not be the case in this instance?'. Mr Butcher answered to the effect that it may be the case in some instances but the shelves in the other rooms had all been done and he did not think that just one should be left in this case.
The Tribunal accepts Mr Butcher's evidence that this top shelf is unpainted, despite the Tribunal not having been shown any photographs of this, and his opinion that this is unsatisfactory in that it is incomplete.
Accordingly, the Tribunal finds that this regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act in that the painting of the shelves in the walk‑in robe is not complete.
The Tribunal also finds that the appropriate remedy is for the respondent to paint the top shelf of the walk‑in robe in the master bedroom.

Item 49: Kitchen ‑ there are gaps in the kickboards under the cupboards

The respondent contested this item. Mr Butcher said that these gaps occur both at the corners and at the top where the board should meet the cupboards. He also said that the gaps vary in size between about 1 millimetre and 5 millimetres. Mr F Afrasiabi asked Mr Butcher if there were such gaps, whether they could be sealed. Mr Butcher said words to the effect that it would be more acceptable to replace the kickboards because some of the gaps were more than 4 millimetres.
The Tribunal accepts Mr Butcher's evidence as to the state of the kickboards, despite the Tribunal not having been shown any photographs of this, and his opinion that it is unsatisfactory for the space not to be sealed, because vermin can get in and it is certainly not a finished product.
Accordingly, the Tribunal finds that this regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act in that the installation of the kickboards under the cupboards is not to an acceptable standard.
We accept Mr Butcher's opinion that it would be more acceptable to replace the kickboards than seal the gaps.
The Tribunal also finds that the appropriate remedy is for the respondent to replace the kickboards under the cupboards in the kitchen.

Item 54: Kitchen ‑ there is a screw in the base of the kitchen light fixture

The respondent contested this item. Mr F Afrasiabi had no questions for Mr Butcher about his evidence.
The Tribunal accepts Mr Butcher's evidence that this screw has not been fixed hard up to the fitting, despite the Tribunal not having been shown any photographs of this, and his opinion that this is unsatisfactory because it could be a safety issue over time.
Accordingly, the Tribunal finds that this regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act in that the installation of the screw in the base of the kitchen light fixture is not to an acceptable standard.
The Tribunal also finds that the appropriate remedy is for the respondent to fix the screw in the base of the kitchen light fixture in the kitchen so that it is hard up to the fitting.

Item 63: Kitchen ‑ cornices have no grout/plaster applied at both ends of the wall above the cook top

The respondent contested this item. Mr F Afrasiabi did not have any questions for Mr Butcher and said only that he did not recall these gaps.
The Tribunal accepts Mr Butcher's evidence that that there are these gaps despite the Tribunal not having been shown any photographs of this, and his opinion that it is unsatisfactory workmanship in that it is incomplete.
Accordingly, the Tribunal finds that this regulated building service was faulty and unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act in that the grout has not been applied to an acceptable standard.
The Tribunal also finds that the appropriate remedy is for the respondent to apply grout to both ends of the cornices above the cook top and make good.

Item 64: Kitchen ‑ cornice is dirty at the right hand side above the window head

The respondent contested this item. Mr F Afrasiabi had no questions for Mr Butcher about his evidence.
The Tribunal accepts Mr Butcher's evidence that there are such dirty marks, despite the Tribunal not having been shown any photographs of this, and his opinion that the dirty marks are unsatisfactory in that the standard of workmanship is unacceptable.
The preference as to evidence and reasoning in relation to item 8 is also applicable to this item.
Accordingly the Tribunal finds that this regulated building service was faulty and unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act in that the finish to the paintwork of the cornice is not to an acceptable standard.
We accept Mr Butcher's opinion that these marks could be removed through cleaning with a damp cloth.
The Tribunal also finds that the appropriate remedy is for the respondent to remove, through cleaning, the dirty marks at the right hand side above the window head in the kitchen.

Item 65: Kitchen ‑ rear of lower corner cupboards is unpainted

The respondent contested this item.
Mr Butcher could not recall this item. In answer to a question put by the Tribunal, Mr Butcher explained that he had written his Report out by hand and his wife had typed it up.
The applicants did not indicate any photographs evidencing this item were in Hearing Booklet, nor did they attempt to admit any further photographs of it into evidence for the purpose of explaining this item.
The applicants have not established on the balance of probabilities that this has not been carried out in a proper and proficient manner or is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act.
Accordingly the Tribunal declines to make a building remedy order in relation to this item and the application, insofar as it relates to this item, is dismissed.

Item 77: Passage ‑ manhole cover has dirty marks over it

The respondent contested this item. Mr F Afrasiabi had no questions for Mr Butcher about his evidence.
The Tribunal accepts Mr Butcher's evidence that there are such dirty marks over the painted manhole and its unpainted surround, despite the Tribunal not having been shown any photographs of this, and his opinion that this is unsatisfactory in that the work has not been made good.
The preference as to evidence and reasoning in relation to item 8 is also applicable to this item.
Accordingly, the Tribunal finds that this regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act in that the finish to the paintwork over the manhole is not to an acceptable standard and the paintwork is incomplete to the extent that the surrounding t‑bar is unpainted.
The Tribunal also finds that the appropriate remedy is for the respondent to remove, through cleaning, the marks on the paintwork over the manhole cover in the passage and to paint the surrounding t‑bar.

Item 84: Bedroom 2 ‑ the door frame to the walk‑in robe has not been painted on the inside and the screws have not been patched;

Item 90: Bedroom 3 ‑ the door frame to the walk‑in robe has not been painted on the inside and the screws have not been patched; and

Item 94: Bedroom 4 ‑ the door frame to the walk‑in robe has not been painted on the inside and the screws have not been patched

The respondent contested these items.
In relation to item 84, Mr F Afrasiabi asked Mr Butcher whether the absence of painwork could be seen if you do not put your head inside. Mr Butcher responded that he had seen it on the day of his inspection.

The Tribunal accepts Mr Butcher's evidence that this has not been done in these locations, and his opinion that this is unsatisfactory because it is unfinished work.
Accordingly, the Tribunal finds that this regulated building service was faulty and unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act in that the installation of the door frames to the walk‑in robes in bedrooms 2, 3 and 4 is incomplete.
The Tribunal also finds that the appropriate remedy is for the respondent to paint the door frames to the walk‑in robes on the inside and patch the screws which have not been patched in bedrooms 2, 3 and 4.

Item 86: Bedroom 2 ‑ there is paint missing off the window on the right hand side

The respondent contested this item. Mr F Afrasiabi said he could not comment because there are no photographs of it. Mr Butcher responded that he had marked all these items with 'sticky dots' so it would have been obvious to anyone attending the inspection. He said that Mr M Afrasiabi had attended the inspection but only for about five minutes.
Mr Butcher said that there is paint missing off the window frame, down to the metal. He said that it is a fairly large chip, being over an area of about 10 to 12 millimetres wide and 900 millimetres long.
The Tribunal accepts Mr Butcher's evidence, despite the Tribunal not having been shown any photographs of this, and his opinion that this is unsatisfactory because of the way it looks.
Accordingly, the Tribunal finds that this regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act in that the finish to the paintwork on the window frame is not to an acceptable standard.
We accept Mr Butcher's opinion that the chip needs to be painted so as to match the powder coating on the window frame.
The Tribunal also finds that the appropriate remedy is for the respondent to paint the chipped area of the window in bedroom 2 so as to match the powdercoating on the window frame.

Item 96: Laundry ‑ there are cornice splays

The respondent contested this item. Mr F Afrasiabi had no questions for Mr Butcher about his evidence.
The Tribunal accepts Mr Butcher's evidence that there are cracks in the joints in the cornice, despite the Tribunal not having been shown any photographs of this, and his opinion that this is unsatisfactory in that the work is incomplete.
Accordingly, the Tribunal finds that this regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act in that the installation of the cornice has not been finished to an acceptable standard.
The Tribunal also finds that the appropriate remedy is for the respondent to fill and paint the cracks in the cornice in the laundry.

Item 97: Laundry ‑ there is dirt and marks over the walls

The respondent contested this item. Mr F Afrasiabi put to Mr Butcher that he had not been at the Property since March 2013 and does not have any evidence that it has not now been done.
The Tribunal accepts Mr Butcher's evidence that there is such dirt around the splashback behind the benchtop, which includes an adhesive from tiling residue, despite the Tribunal not having been shown any photographs of this, and his opinion that this is unsatisfactory in that the work has not been made good.
The preference as to evidence and reasoning in relation to item 8 is also applicable to this item, albeit also in relation to the cleaning off dirt around the splashback behind the benchtop, including an adhesive from tiling residue, rather than marks on paint.
Further, we consider that the report and Mr Butcher's oral evidence establishes that it is more likely than not that none of the contested items in the Report have been attended to. There is no evidence, other than a few oral assertions first made by the respondent on day two of the final hearing, of any work having been done since Mr Butcher's inspection in March 2013. The Tribunal does not accept Mr F Afrasiabi's evidence in this regard, because the assertions are unsubstantiated and self-serving, and they also contradict other assertions made by Mr F Afrasiabi to the effect that the respondent could not afford to keep doing work because the applicants had stopped paying.
Accordingly, the Tribunal finds that this regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act in that the finish to the splashback in the laundry is not to an acceptable standard.
We accept Mr Butcher's opinion that, for this dirt to be removed, the area needs to be sanded back and repainted.
The Tribunal also finds that the appropriate remedy is for the respondent to remove the dirt around the splashback of the benchtop in the laundry, including sanding back and repainting where necessary to remove tiling residue.

Item 101: Laundry ‑ there is a gap in the tile around the cold water tap

The respondent contested this item. Mr F Afrasiabi had no questions for Mr Butcher about his evidence.
The Tribunal accepts Mr Butcher's evidence that there is this gap, despite the Tribunal not having been shown any photographs of this, and his opinion that this is unsatisfactory in that it is unsightly.
Accordingly, the Tribunal finds that this regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act in that the tiling around the cold water tap in the laundry is not to an acceptable standard.
We accept Mr Butcher's opinion that rectification of this item requires the tile to be replaced.
The Tribunal also finds that the appropriate remedy is for the respondent to replace the tile around the cold water tap in the laundry so that there is no gap.

Item 132: Front verandah ‑ there is stain paint from the decking on the walls and the lattice below

The respondent contested this item. Mr F Afrasiabi had no questions for Mr Butcher about his evidence.
The Tribunal accepts Mr Butcher's evidence there is paint from the decking that has run and stained walls and the lattice below and that the photograph at page 164 of the Hearing Booklet shows an example of this. We also accept Mr Butcher's opinion that this is unsatisfactory because the stains stand out.
Accordingly, the Tribunal finds that this regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act in that the painting of the decking has not been to an acceptable standard to the extent that paint has been allowed to run on to the walls and lattice below.
We accept Mr Butcher's opinion that rectification of this item requires the stained areas to be repainted.
The Tribunal also finds that the appropriate remedy is for the respondent to repaint the stained areas on the walls and the lattice below the front verandah.

Item 137: Front verandah ‑ there is paint overspray on the Colorbond wall cladding each side of the front door

The respondent contested this item. Mr F Afrasiabi had no questions for Mr Butcher about his evidence.
The Tribunal accepts Mr Butcher's evidence that there is this fine overspray that is noticeable on the Colorbond wall cladding each side of the front door, despite the Tribunal not having been shown any photographs of this, and Mr Butcher's opinion that this is unsatisfactory because it defaces the original material.
Accordingly, the Tribunal finds that this regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act in that the spray painting around the front door has not been to an acceptable standard to the extent that paint spray has been allowed to reach the Colorbond wall cladding each side.
We accept Mr Butcher's opinion that rectification of this item may require replacing the Colorbond sheets, which are approximately 1.7 or 2 metres high and 1.5 metres wide.
The Tribunal also finds that the appropriate remedy is for the respondent to replace the Colorbond sheets on the front verandah on either side of the front door upon which there is a fine paint overspray, unless it is possible to polish off the overspray without damaging the Colorbond sheets.

Item 140: Landing ‑ there is stain paint on the sill of the sliding door

The respondent contested this item. Mr F Afrasiabi had no questions for Mr Butcher but said that such a stain would be easy to remove.
The Tribunal accepts Mr Butcher's evidence that there is paint staining on the sill of the sliding door on the rear landing and that the photograph at page 167 of the Hearing Booklet shows this. We also accept Mr Butcher's opinion that this is unsatisfactory.
Accordingly, the Tribunal finds that this regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act in that painting of the landing has not been to an acceptable standard to the extent that paint has marked the sill of the sliding door.
We accept Mr Butcher's opinion that rectification of this item should involve simply removing it because it is a water‑based material.
The Tribunal also finds that the appropriate remedy is for the respondent to remove the paint staining on the sill of the sliding door on the rear landing.

Item 146: External cladding ‑ the zincalume framing behind the lattice is not painted and shows through

The respondent contested this item. Mr F Afrasiabi asked Mr Butcher whether he has ever painted a galvanised house, to which Mr Butcher replied that he would if it was called for. Mr Butcher also said that it would depend where it is; in this case, it is underneath the floor level and right around the whole house.
The Tribunal accepts Mr Butcher's evidence that the zincalume framing behind the lattice is not painted the same colour as the lattice so that it shows through all around the house, and that the photograph at page 168 of the Hearing Booklet shows an example of this. We also accept Mr Butcher's opinion that this is unsatisfactory because there is such a difference in colour.
Accordingly, the Tribunal finds that this regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act in that the installation of the zincalume framing is incomplete.
We accept Mr Butcher's opinion that this difference in colour could be remedied by spraying the zincalume framing through the lattice with the same colour paint as the lattice.
The Tribunal also finds that the appropriate remedy is for the respondent to spray the zincalume framing through the lattice with the same colour paint as the lattice.

Item 147: External cladding ‑ corrugated Colorbond cladding requires touch up paint where there are scuff marks and scratch marks

The respondent contested this item. Mr F Afrasiabi said he did not recall any such scratching.
The Tribunal accepts Mr Butcher's evidence that that there is one scratch and also about six scuff marks on the Colorbond cladding and that the photograph at page 168 of the Hearing Booklet is an example of this. We also accept Mr Butcher's opinion that this is unsatisfactory because there is an inconsistency in colour.
Accordingly, the Tribunal finds that this regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act in that the external cladding is damaged and not finished to an acceptable standard.
We accept Mr Butcher's opinion that it should be possible to touch up the scratch marks and scuff marks with a spray can of paint.
The Tribunal also finds that the appropriate remedy is for the respondent to touch up the scratch marks and scuff marks on the Colorbond cladding with paint.

Item 148: External cladding ‑ the plastic corner cover in the north‑east corner is short, gap under the cover

The respondent contested this item. Mr F Afrasiabi asked Mr Butcher whether this could leak. Mr Butcher replied that it could.
The Tribunal accepts Mr Butcher's opinion that the plastic corner cover in the north‑east corner is short, with the result that there is a gap of about 10 to 12 millimetres under the cover, and that the photograph in the middle to the left at page 168 of the Hearing Booklet shows this. We also accept Mr Butcher's opinion that this is unsatisfactory because it is incomplete and may allow water in.
Accordingly, the Tribunal finds that this regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act in that the plastic cover in the north‑east corner is not adequate to keep water out.
We accept Mr Butcher's opinion that rectification of this item would involve replacing the cover.
The Tribunal also finds that the appropriate remedy is for the respondent to replace the plastic corner cover in the north‑east corner.

Item 151: External cladding ‑ there is a dent in the track on the right hand end exterior of window to bedroom 3

The respondent contested this item.
Mr F Afrasiabi asked Mr Butcher about the size of the dent. Mr Butcher replied that it was approximately 60 millimetres in width and about 3 to 4 millimetres out of alignment.
The Tribunal accepts Mr Butcher's evidence that there is this dent and that the photograph at page 169 of the Hearing Booklet shows it. We also accept Mr Butcher's opinion that this is unsatisfactory because it causes the action of opening the window to be 'not smooth'.
Accordingly, the Tribunal finds that this regulated building service was faulty and unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act in that the window in bedroom 3 has not been installed correctly, so as to enable the window to operate as intended, to the extent that the runner track of the window to bedroom 3 is out of alignment.
We accept Mr Butcher's opinion that the dent could be fixed by straightening the track.
The Tribunal also finds that the appropriate remedy is for the respondent to straighten the track on the right hand end exterior of window to bedroom 3.

Item 152: External cladding ‑ there is paint on the weatherboards near the eaves on the south‑side

The respondent contested this item.
Mr F Afrasiabi said he could see the point, although he maintained that he did not accept anything in Mr Butcher's Report. He also said final cleaning was not going to be done before handover.
The Tribunal accepts Mr Butcher's evidence that there is paint on the weatherboards near the eaves on the south‑side, and that the photograph at the top right hand side of page 169 of the Hearing Booklet shows this. We also accept Mr Butcher's opinion that this is unsatisfactory because the paint is a different colour to the weatherboards.
The preference as to evidence and reasoning in relation to item 8 is also applicable to this item, albeit in relation to paint marks rather than dirty marks on paint.
Accordingly, the Tribunal finds that this regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act in that painting on the south‑side has not been to an acceptable standard to the extent that paint has marked the weatherboards near the eaves.
We accept Mr Butcher's opinion that this would likely come off easily by rubbing.
The Tribunal also finds that the appropriate remedy is for the respondent to rub off the paint on the weatherboards near the eaves on the south‑side.

Item 162: Downpipes ‑ brackets are not painted the same colour as the steel posts on the front verandah and carport

The respondent contested this item. Mr F Afrasiabi put to Mr Butcher that it is not standard practice to have the colour of the posts the same colour as the brackets.Mr Butcher maintained that it was standard practice where the bracket wraps around the post.
The Tribunal accepts Mr Butcher's evidence that the brackets are not the same colour as the posts on the front verandah and carport, and his opinion that this is unsatisfactory because there is a discrepancy in colour.
Accordingly, the Tribunal finds that this regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act in that the painting of the steel posts on the verandah and carport (so as to include the brackets) is incomplete.
The Tribunal also finds that the appropriate remedy is for the respondent to paint the brackets on the front verandah and carport the same colour as the steel posts in that location.

Item 44: Kitchen ‑ grout very roughly applied along all splashbacks, around range hood, along benchtops, along the heads of the upper cupboards ‑ grout is cracked all along this area and around sink

The respondent contested this item. Mr F Afrasiabi had no questions for Mr Butcher about his evidence.
The Tribunal accepts Mr Butcher's evidence that the grout all around the kitchen is poorly applied, including areas where grout is missing entirely, and that there is an absence of a flexible sealant between the tiles and benchtop, despite the Tribunal not having been shown any photographs of this. We also accept Mr Butcher's opinion that this is unsatisfactory work.
Accordingly, the Tribunal finds that this regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act in that the grout and the sealant have not been applied to an acceptable standard.
In the context of item 143, Mr F Afrasiabi stated that the granite benchtop joints in the kitchen had been done because he had attended to it himself. The Tribunal does not consider that this includes the flexible sealant between the tiles and benchtop. However, if it were to include the flexible sealant, the Tribunal prefers Mr Butcher's evidence to that of Mr F Afrasiabi because Mr F Afrasiabi's statement amounts to an unsubstantiated assertion, the Tribunal has assessed that Mr F Afrasiabi's evidence is to be treated with caution and Mr Butcher's evidence was clear and precise.
The Tribunal also finds that the appropriate remedy is for the respondent to remedy the grouting and the flexible sealant in the kitchen area to the extent that it is necessary to complete, repair and make good the grouting work.

Items 50: Kitchen ‑ there is no power point for the microwave oven

Item 51: Kitchen ‑ there are no holes cut for power points and plumbing in the dishwasher recess

The respondent contested this item. Mr F Afrasiabi effectively contended that these items could not amount to poor workmanship because they were not required under 'the contract' to be done.
Mr F Afrasiabi gave oral evidence going to the scope of the agreement between the parties and in particular whether the agreement between the parties included any of the attachments that had not been signed or initialled. He said that 'the specifications' and 'the addenda' do not form part of 'the contract' entered into by the applicants and the respondent because he told the applicants this 'about six or seven months ago'. He also said the respondent had only ever signed 'the lump sum contract' and had never signed 'the specifications'. He said that his brother, Mr Mal Afrasiabi (Mr M Afrasiabi), had told Yaran that 'with the 20% cut' to the price, the respondent could not adhere to the specifications.
Mr F Afrasiabi faxed to the Tribunal on 18 December 2013 a nine page facsimile which the Tribunal admitted into evidence as Exhibit 3. This bundle of documents included:
a)correspondence with the applicants in November 2013, in which the respondent effectively asserted that the respondent is not bound by 'the Yaran supplied specification'; and
b)a copy of an unsigned letter dated March 2012 prepared by Yaran, effectively seeking confirmation from the respondent that the Property would be constructed in accordance with 'the Yaran supplied specification'.

In cross‑examination of the respondent by Mr Easthope on behalf of the applicants, Mr Easthope put to Mr F Afrasiabi that the applicants do not have any contract with Yaran and that there are many client selections within 'the specifications', such as pavers, trim and the like. Mr Easthope asked the respondent, if he has not been using 'the specifications and addenda,' how has he known what to build? Mr F Afrasiabi responded that he had been guided by 'the BCA'.
Subsequently the applicants called further witnesses whose evidence included evidence going to the scope of the agreement between the parties and the circumstances in which that agreement was entered into.
The applicants' position is that the agreement between the parties comprises the document and attachments found at pages 35 to 147 of the Hearing Booklet.
Mr Faryar Gorjy is a director of Yaran. He has a degree in civil engineering and has been 'running Yaran' since 1996. Mr Gorjy gave his evidence in a straightforward manner. The Tribunal accepts Mr Gorjy as a credible witness.
Mr Gorjy said that in May 2010, Yaran had been allocated 1,114 properties in Western Australia to develop as part of the NRAS, 10 of which were in Bridgetown. The applicants' Property is one of these properties.
Mr Gorjy said that the project manager for the applicants' particular project was no longer with Yaran but that, as was 'standard practice' for Yaran, Yaran had printed and bound 'the package' for the applicants. He said that 'the package' comprised a land purchase contract, an NRAS contract and a building contract. Mr Gorjy said that these three contracts were signed by purchasers all at the same time.
Mr Gorjy said that the respondent had tendered for the building contract which formed part of the applicants' package and that it was 'unbelievable' that the respondent was now saying that 'the specifications and addenda' do not form part of that building contract. Mr Gorjy said that it was clear in his mind that they were included.
Mr Gorjy said that there was also a builders' fee agreement between Yaran and the respondent. A copy of this agreement dated '25^th day of 2010' and signed by both Yaran and the respondent (Builders' Fee Agreement) was admitted into evidence as Exhibit 4. The Tribunal notes that on the last page of this agreement, the annexure states: 'Need to attach the terms of Building Contract' but that such details did not form part of the document tendered by the applicants.
Recital C of the Builders' Fee Agreement provides that:
The Builder has agreed to pay Yaran the Builder's Fee in consideration of
(i)Yaran introducing to the Builder the proposed Purchaser of the Property;
(ii)Yaran authorizing the Builder to use the Plans and Specifications for the Building Contract.
Mr F Afrasiabi cross‑examined Mr Gorjy. Mr F Afrasiabi put to Mr Gorjy that Mr M Afrasiabi had only signed the HIA contract, and had never agreed to and had never signed 'the specifications'. Mr Gorjy said he found 'the whole argument ridiculous'. Mr Gorjy also said that this had never come up until about 'June or July last year' and that they had laughed about it at the time because it was 'unthinkable'.
Mr F Afrasiabi also put the letter dated 16 March 2012 at page 2 of Exhibit 3 to Mr Gorjy and asked why it was necessary for Yaran to send that letter.
The letter dated 16 March 2012 from Yaran states:
… I would like to confirm AFRA Construction is constructing dwellings on [Lots 127, 231 and 254 …]. These dwellings will be constructed as per Yaran supplied specification in the building contract between AFRA Construction and the purchase of each lot and also the Building Codes of Australia[.]
Mr Gorjy responded by referring to the letter dated 27 October 2011 at page 4 of Exhibit 3 and said that it appears that the 16 March 2012 letter was 'seeking clarification'.
The letter dated 27 October 2011 from Yaran states:
… A few inaccuracies have been found in the specifications on other Yaran projects prepared at a similar time the Bridgetown specifications were prepared. Therefore I have prepared the table below outlining the items listed in the Bridgetown specification I am concerned may not match what you intend to include the dwelling.
The respondent did not sign either the letter dated 16 March 2012 or the letter dated 27 October 2011.
The respondent submits, effectively, that this evidences that the respondent did not agree to be bound by the specifications and the addenda.
Mr F Afrasiabi put to Mr Gorjy that Yaran had only sent the HIA terms to the respondent and that the other parts were later included in what was given to the applicants. Mr Gorjy refuted this, responding that Yaran prepared and bound all of the contracts and that the bound building contract was couriered to the builder. Mr F Afrasiabi also put to Mr Gorjy that only the HIA terms had been signed and that the specifications had not been initialled by Mr M Afrasiabi. Mr Gorjy responded that it had not been the practice in the past to initial all pages but that it now was.
Mr Daniel Leo Joseph Lampman (Mr Lampman) is one of the applicants. He has been a geologist for 35 years. Mr Lampman gave his evidence in a direct and straightforward manner, and his evidence was overall internally consistent. The Tribunal accepts Mr Lampman as a credible witness.
Mr Lampman began his evidence by explaining that he had decided to build the Bridgetown Property because he wanted an investment property. He said that he did some research and decided upon a property in Bridgetown which was part of the NRAS program.
Mr Lampman said that they were presented with the contracts by 'Park Trent' who were selling for Yaran. These contracts came in three parts: the land contract, the building contract and the NRAS contract. He said that they were bound into three binders and that the building contract was bound exactly as it appeared in the Hearing Booklet, including the specifications and addenda.
Mr F Afrasiabi cross‑examined Mr Lampman. During cross‑examination, Mr Lampman said that he had relied upon Yaran to supply a competent builder and that, prior to entering into the building contract, he did not even know who the builder was.
Mr Lampman could not recall if the building contract he had signed was already signed by the respondent or not.
On the basis of Mr Gorjy's evidence and also the evidence of Mr Lampman as to the documentation he received as 'the building contract', the Tribunal finds that the agreement between the parties comprises the document and attachments found at pages 35 to 147 of the Hearing Booklet, namely:
a)the signed HIA lump sum standard terms and conditions and schedule of particulars dated 30 January 2011 and special conditions;
b)the specification, revision 1 dated 14 October 2010 (Specifications);
c)the addenda, revision 1 dated 1 November 2010 (Addenda);
d)the 3 page 'building specification' undated (Additional Specifications); and
e)the various plans and drawings (Plans and Drawings)
(collectively, the Contract).
While Mr Gorjy's evidence taken as a whole appears to be fundamentally an assumption based on what Yaran's general procedures are and not direct knowledge of precisely how this Contract was in fact handled, the Tribunal infers that the Contract between the parties was handled in the same way.
The Tribunal rejects Mr F Afrasiabi's evidence that the respondent only received the HIA lump sum standard terms and conditions, and schedule of particulars and special conditions. This is because this evidence is inconsistent with Mr Gorjy's evidence, which the Tribunal prefers, and also because it is inconsistent with documentary evidence. The photographs establish that the Property has been substantially erected and there are no details of exactly what is to be built in the HIA lump sum standard terms and conditions and schedule of particulars dated 30 January 2011 and special conditions. The documentary evidence in Exhibit 3 is inconclusive, given that the correspondence contained within it is all dated well after the commencement of the Contract. Furthermore, it was Mr M Afrasiabi who executed the Contract and not Mr F Afrasiabi.
The Specifications at page 113 of the Hearing Booklet state that:
Accessories
General: provide accessories necessary for a complete installation including but limited to switches, dimmers, socket outlets and telecommunications outlets.
Appliances
General: provide final subcircuits and terminate at fixed appliances, hot water units, packaged airconditioning and other plant and equipment.
The Tribunal finds that, while the electrical drawings at page 139 of the Hearing Booklet do not indicate a power point for the microwave, the Specification at page 113 requires that one be installed. Further, and in any event, a power point is a necessary feature for a microwave recess.
The drawings at page 137 of the Hearing Booklet indicate that a dishwasher recess is to be located underneath the drainer portion of the sink in the kitchen.
The Tribunal accepts Mr Butcher's evidence that there is no power point for the microwave oven and no holes cut for power points and plumbing in the dishwasher recess, despite the Tribunal not having been shown any photographs of this. We also accept Mr Butcher's opinion that the absence of holes for power points and plumbing in the dishwasher recess is unsatisfactory because it is standard practice for such holes to be provided.
Accordingly, the Tribunal finds that item 50 has not been carried out in a proper and proficient manner or is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act on the basis that the Contract does requires this as part of this installation of a microwave recess in the kitchen. The Tribunal also finds that item 51 has not been carried out in a proper and proficient manner or is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act on the basis of Mr Butcher's opinion of what the installation of a dishwasher recess in a kitchen would involve.
The Tribunal also finds that the appropriate remedy is for the respondent to install a power point for the microwave oven and holes for power points and plumbing for the dishwasher in the kitchen.

Item 52: Kitchen ‑ the rubber under the cooktop is twisted and caught under the cooktop itself

The respondent contested this item. Mr F Afrasiabi did not have any questions for Mr Butcher but commented that he could not recall seeing this, although it was a 'long time ago'. In answer to a question then asked by the Tribunal, Mr F Afrasiabi said that he was last at this site around August 2013 but could not remember the last time he had been inside the house.
The Tribunal accepts Mr Butcher's evidence that the rubber under the cooktop is twisted in one corner, despite the Tribunal not having been shown any photographs of this, and his opinion that this is unsatisfactory because it renders the seal ineffective.
Accordingly, the Tribunal finds that this regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act in that the rubber under the cooktop has been installed incorrectly.
We accept the Mr Butcher's opinion that it may be possible to lift up the cooktop and untwist the rubber.
The Tribunal also finds that the appropriate remedy is for the respondent to lift up the cooktop and untwist the rubber unless, upon doing so, the rubber appears in any way damaged or misshapen, in which case the rubber must be replaced.

Item 53: Kitchen ‑ range hood is not working

The respondent contested this item. Mr F Afrasiabi asked Mr Butcher whether he had checked that the range hood was connected to the power point for it in the roof. Mr Butcher agreed the power point would be in the roof but said that he was not sure why it was not working.
The Tribunal accepts Mr Butcher's evidence that the range hood is not working and his opinion that this is unsatisfactory because it is not operating.
Accordingly, the Tribunal finds that this regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act in that installation of the range hood is incomplete.
The Tribunal also finds that the appropriate remedy is for the respondent to take the steps necessary to render the range hood in working order.

Item 55: Kitchen ‑ there is a screw installed crookedly into the right hand upper cupboard under edge

The respondent contested this item. Mr F Afrasiabi had no questions for Mr Butcher about his evidence.
The Tribunal accepts Mr Butcher's evidence that there is this screw and his opinion that this is unsatisfactory because it is protruding and a person could injure themselves while cleaning.
Accordingly, the Tribunal finds that this regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act in that the installation of the screw in the right hand upper cupboard under the edge is not to an acceptable standard.
The Tribunal also finds that the appropriate remedy is for the respondent to fix the screw installed crookedly into the right hand upper kitchen cupboard under the edge so that it is straight and hard up to the cupboard.

Item 56: Kitchen ‑ beading strips under the upper cupboards/range hood are marked ‑ appears to be rust

The respondent contested this item. Mr F Afrasiabi had no questions for Mr Butcher about his evidence.
The Tribunal accepts Mr Butcher's evidence that the beading strips in this location are discoloured, despite the Tribunal not having been shown any photographs of this, and his opinion that this is unsatisfactory because it amounts to discoloration.
Accordingly the Tribunal finds that this regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act in that the finish to the beading strips is not to an acceptable standard.
We accept Mr Butcher's opinion that the discolouration may be able to be cleaned off.
The Tribunal also finds that the appropriate remedy is for the respondent to clean off the discolouration on the beading strips under the upper cupboards/rangehood in the kitchen or otherwise take the steps necessary to remedy the discolouration.

Item 57: Kitchen ‑ there are screw holes under the upper cupboard
Item 66: Kitchen ‑ screw caps required over screws in cabinetry

The respondent contested this item, although Mr F Afrasiabi also said that, effectively, if these screw did not have a plastic cover, then they should have.
The Tribunal accepts Mr Butcher's evidence that there are uncovered screw holes in both locations, despite the Tribunal not having been shown any photographs of this, and his opinion that this is unsatisfactory because they should have a plastic cover them so they are not visible.
Accordingly, the Tribunal finds that this regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act in that the installation of the kitchen cabinetry is incomplete.
The Tribunal also finds that the appropriate remedy is for the respondent to install screws where they are missing under the upper cupboard and to place a plastic cover over the screw under the upper cupboard and in the cabinetry in the kitchen.

Item 58: Kitchen ‑ scratches over the upper cupboard handles

The respondent contested this item. Mr F Afrasiabi said that he did not recall ever seeing such scratches.
The Tribunal accepts Mr Butcher's evidence that there are these scratches, despite the Tribunal not having been shown any photographs of this, and his opinion that this is unsatisfactory.
Accordingly, the Tribunal finds that this regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act in that the upper cupboard handles are damaged and the cupboards are therefore not finished to an acceptable standard.
We also accept Mr Butcher's opinion that these handles probably need replacing.
The Tribunal also finds that the appropriate remedy is for the respondent to replace the scratched handles on the upper cupboard in the kitchen.

Item 59: Kitchen - scratches in general over cabinetry doors

The respondent contested this item. Mr F Afrasiabi said he cannot remember any scratches on these doors.
The Tribunal accepts Mr Butcher's evidence that there are such scratches over more than half of the cabinetry doors, despite the Tribunal not having been shown any photographs of this, and his opinion that this is unsatisfactory.
Accordingly, the Tribunal finds that this regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act in that the cabinetry doors are damaged and the cabinetry is therefore not finished to an acceptable standard.
The Tribunal also finds that the appropriate remedy is for the respondent to replace the scratched cabinetry doors in the kitchen unless it is possible to sand away the scratches without marking the doors.

Item 60: Kitchen general - scratches over cooktop

The respondent contested this item. Mr F Afrasiabi asked Mr Butcher of the size of the scratches. Mr Butcher said they were not deep and were like scuff marks.
The Tribunal accepts Mr Butcher's evidence that there are such scuff marks, despite the Tribunal not having been shown any photographs of this, and his opinion that this is unsatisfactory.
Accordingly, the Tribunal finds that this regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act in that the cooktop is damaged, which damage has not been made good.
We also accept Mr Butcher's opinion that the cook top is stainless steel and the scuff marks could probably be buffed out so that the cooktop, which appeared new, would not have to be replaced.
The Tribunal also finds that the appropriate remedy is for the respondent to buff out the scuff marks on the cooktop.

Item 61: Kitchen - some cupboard shelves are not yet fitted in

The respondent contested this item. Mr F Afrasiabi also said that 'there are some spare shelves around'.
The Tribunal accepts Mr Butcher's evidence that there are one or two cupboards where shelves in the centre have not been fitted, despite the Tribunal not having been shown any photographs of this. We also accept Mr Butcher's opinion that this is unsatisfactory because usually there would be shelves fitted through the centre of cupboards.
Accordingly, the Tribunal finds that this regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act in that the installation of the cupboard shelves in the kitchen is incomplete.
The Tribunal also finds that the appropriate remedy is for the respondent to fit shelves in the kitchen cupboards where shelves in the centre have not been fitted.

Item 62: Kitchen ‑ sink requires sealant all way around

The respondent contested this item. Mr F Afrasiabi said 'no comment'. The Tribunal accepts Mr Butcher's evidence that the sealant around the kitchen sink is missing, despite the Tribunal not having been shown any photographs of this, and Mr Butcher's opinion that this is unsatisfactory because, without a sealant all the way around, water can get in.
Accordingly, the Tribunal finds that this regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory within the meaning of s 38(1)(a) of the BS(CRA) Act in that the installation of the kitchen sink is incomplete.

3.The respondent must remedy the building work that has not been carried out in a proper and proficient manner or is faulty and unsatisfactory at No 11 (Lot 254) Galloway Drive, Bridgetown as listed below by Thursday 17 April 2014.
Item 7 Complaint:
Living room - cracks in the paintwork at the left hand side above the light switch.
Action:
The respondent must fill and paint the cracks in the paintwork in the living room at the left hand side above the light switch.
Item 8 Complaint:
Living room ‑ dirty hand marks over paintwork.
Action:
The respondent must remove through cleaning all marks on the paintwork in the living room.
Item 10 Complaint:
Living room ‑ there is a crack down the plaster/front door frame at the left hand door reveal.
Action:
The respondent must make good the crack down the plaster/front door frame at the left hand door reveal in the living room.
Item 11 Complaint:
Living room ‑ paint chips to the door frame at the entry to the passage.
Action:
The respondent must fill and paint the chips to the door frame at the entry to the passage in the living room.
Item 18 Complaint:
Master bedroom smoke detector is not 300 millimetres away from the wall.
Action:
The respondent must move the smoke detector in the master bedroom so that it is at least 300 millimetres from the nearest wall.
Item 19 Complaint:
Master bedroom - marks on the south‑east wall.
Action:
The respondent must remove, through cleaning, all marks on the paintwork on the south‑east wall in the master bedroom.
Item 20 Complaint:
Master bedroom - cornice splays evident.
Action:
The respondent must fill and paint the crack where the cornice meets the corner in the master bedroom.
Item 21 Complaint:
Master bedroom - the cornice has a large paint bubble on the south wall.
Action:
The respondent must remove the large paint bubble on the cornice on the south wall in the master bedroom and then fill and paint the immediate area.
Item 22 Complaint:
Master bedroom ‑ there is a hole in the wall under the door buffer.
Action:
The respondent must fill the hole in the wall under the door buffer in the master bedroom and pain the immediate area.
Item 23 Complaint:
Master bedroom - dirty marks over the manhole cover.
Action:
The respondent must remove, through cleaning, the marks on the paintwork over the manhole cover in the master bedroom.
Item 28 Complaint:
Master bedroom ‑ walk‑in robe ‑ top shelf of robe is unpainted.
Action:
The respondent must paint the top shelf of the walk‑in robe in the master bedroom.
Item 49 Complaint:
Kitchen ‑ there are gaps in the kick boards under the cupboards.
Action:
The respondent must replace the kickboards under the cupboards in the kitchen.
Item 54 Complaint:
Kitchen ‑ there is a screw in the base of the kitchen light fixture.
Action:
The respondent must fix the screw in the base of the kitchen light fixture in the kitchen so that it is hard up to the fitting.
Item 63 Complaint:
Kitchen ‑ cornices have no grout/plaster applied at both ends of the wall above the cook top.
Action:
The respondent must apply grout to both ends of the cornices above the cook top and make good.
Item 64 Complaint:
Kitchen - cornice is dirty at the right hand side above the window head.
Action:
The respondent must remove, through cleaning, the dirty marks at the right hand side above the window head in the kitchen.
Item 77 Complaint:
Passage – man hole cover has dirty marks over it.
Action:
The respondent must remove, through cleaning, the marks on the paintwork over the manhole cover in the passage and paint the surrounding t-bar.
Items 84, 90 and 94 Complaint:
Bedroom 2 ‑ the door frame to the robe has not been painted on the inside and the screws have not been patched; bedroom 3 ‑ the door frame to the robe has not been painted on the inside and the screws have not been patched; and bedroom 4 ‑ the door frame to the robe has not been painted on the inside and the screws have not been patched.
Action:
The respondent must paint the door frames to the walk‑in robes on the inside and patch the screws which have not been patched in bedrooms 2, 3 and 4.
Item 86 Complaint:
Bedroom 2 ‑ there is paint missing off the window on the right hand side.
Action:
The respondent must paint the chipped area of the window in bedroom 2 so as to match the powder coating on the window frame.
Item 96 Complaint:
Laundry - there are cornice splays.
Action:
The respondent must fill and paint the cracks in the cornice in the laundry.
Item 97 Complaint:
Laundry ‑ there is dirt and marks over the walls.
Action:
The respondent must remove the dirt around the splashback of the benchtop in the laundry, including sanding back and repainting where necessary to remove tiling residue.
Item 101 Complaint:
Laundry - there is a gap in the tile around the cold water tap.
Action:
The respondent must replace the tile around the cold water tap in the laundry so that there is no gap.
Item 132 Complaint:
Front verandah ‑ there is stain paint from the decking on the walls and the lattice below.
Action:
The respondent must repaint the stained areas on the walls and the lattice below the front verandah.
Item 137 Complaint:
Front verandah ‑ there is paint over spray on the Colorbond wall cladding each side of the front door.
Action:
The respondent must replace the Colorbond sheets on the front verandah on either side of the front door upon which there is a fine paint overspray, unless it is possible to polish off the overspray without damaging the Colorbond sheets.
Item 140 Complaint:
Landing - there is stain paint on the sill of the sliding door.
Action:
The respondent must remove the paint staining on the sill of the sliding door on the rear landing.
Item 146 Complaint:
External cladding ‑ the zincalume framing behind the lattice is not painted and shows through.
Action:
The respondent must spray the zincalume framing through the lattice with the same colour paint as the lattice.
Item 147 Complaint:
External cladding ‑ corrugated Colorbond cladding requires touch up paint where there are scuff marks and scratch marks.
Action:
The respondent must touch up the scratch marks and scuff marks on the Colorbond cladding with paint.
Item 148 Complaint:
External cladding ‑ the plastic corner cover in the north east corner is short, gap under the cover.
Action:
The respondent must replace the plastic corner cover in the north‑east corner.
Item 151 Complaint:
External cladding ‑ there is a dent in the track on the right hand end exterior of window to bedroom 3.
Action:
The respondent must straighten the track on the right hand end exterior of window to bedroom 3.
Item 152 Complaint:
External cladding ‑ there is paint on the weatherboards near the eaves on the south side.
Action:
The respondent must rub off the paint on the weatherboards near the eaves on the south side.
Item 162 Complaint:
Downpipes ‑ brackets are not painted the same colour as the steel posts on the front verandah and carport.
Action:
The respondent must paint the brackets on the front verandah and carport the same colour as the steel posts in that location.
Item 44 Complaint:
Kitchen ‑ grout very roughly applied along all splashbacks, around range hood, along benchtops, along the heads of the upper cupboards ‑ grout is cracked all along this area and around sink.
Action:
The respondent must remedy the grouting and the flexible sealant in the kitchen area to the extent that it is necessary to complete, repair and make good the grouting work.
Items 50 and 51 Complaint:
Kitchen ‑ there is no power point for the microwave oven and there are no holes cut for power points and plumbing in the dishwasher recess.
Action:
The respondent must install a power point for the microwave oven and holes for power points and plumbing for the dishwasher in the kitchen.
Item 52 Complaint:
Kitchen ‑ the rubber under the cooktop is twisted and caught under the cooktop itself.
Action:
The respondent must lift up the cooktop and untwist the rubber unless, upon doing so, the rubber appears in any way damaged or misshapen, in which case the rubber must be replaced.
Item 53 Complaint:
Kitchen ‑ range hood is not working.
Action:
The respondent must take the steps necessary to render the range hood in working order.
Item 55 Complaint:
Kitchen ‑ there is a screw installed crookedly into the right hand upper cupboard under edge.
Action:
The respondent must fix the screw installed crookedly into the right hand upper kitchen cupboard under the edge so that it is straight and hard up to the cupboard.
Item 56 Complaint:
Kitchen ‑ beading strips under the upper cupboards/range hood are marked ‑ appears to be rust.
Action:
The respondent must clean off the discolouration on the beading strips under the upper cupboards/range hood in the kitchen or otherwise take the steps necessary to remedy the discolouration.
Items 57 and 66 Complaint
Kitchen ‑ there are screw holes under the upper cupboard and screw caps required over screws in cabinetry.
Action:
The respondent must install screws where they are missing under the upper cupboard and to place a plastic cover over the screw under the upper cupboard and in the cabinetry in the kitchen.
Item 58 Complaint:
Kitchen ‑ scratches over the upper cupboard handles.
Action:
The respondent must replace the scratched handles on the upper cupboard in the kitchen.
Item 59 Complaint:
Kitchen ‑ scratches in general over cabinetry doors.
Action:
The respondent must replace the scratched cabinetry doors in the kitchen unless it is possible to sand away the scratches without marking the doors.
Item 60 Complaint:
Kitchen - scratches over cook top.
Action:
The respondent must buff out the scuff marks on the cooktop.
Item 61 Complaint:
Kitchen - some cupboard shelves are not yet fitted in.
Action:
The respondent must fit shelves in the kitchen cupboards where shelves in the centre have not been fitted.
Item 62 Complaint:
Kitchen - kitchen sink requires sealant all way around.
Action:
The respondent must apply sealant around the kitchen sink.
Item 67 Complaint:
Kitchen ‑ roughly finished beading at the fridge recess on the right hand side.
Action:
The respondent must refinish the beading at the refrigerator recess on the right hand side so that there is no gap.
Item 68 Complaint:
Kitchen ‑ the cover strip of beading above the upper cupboards is loose.
Action:
The respondent must refinish the cover strip of beading above the upper cupboards so that it is no longer loose.
Items 126 and 127 Complaint:
The exhaust fan to the bathroom/toilet on the southern and the exhaust fan in the ensuite are not flumed through the roof.
Action:
The respondent must complete the installation of the exhaust fans in the bathroom/toilet on the southern end and in the ensuite so that they are flumed through the roof and in working order.
Items 104 and 34 Complaint:
There is dirt and marks over the walls in the toilet/powder room and in the ensuite.
Action:
The respondent must remove, through cleaning, all marks over the walls in the toilet/powder room and the ensuite.
Items 107, 30 and 156 Complaint:
There are screw holes in both sides of the window frame reveals in the toilet/powder room and in the ensuite and the flyscreen are not fitted.
Action:
The respondent must take all steps necessary to ensure that all flyscreens are able to be properly fitted (without finally fitting them) and make good this task, including filling screw holes on one side of the window frame reveals where screw holes are not required.
Item 108 Complaint:
Toilet/powder room ‑ there are scratches over the toilet seat cover.
Action:
The respondent must fit a new toilet seat unless the scratches over the toilet seat cover can otherwise be removed.
Item 109 Complaint:
Toilet/powder room ‑ the cabinetry door handles are hitting against the wall causing damage.
Action:
The respondent must repair the wall in the toilet/power room where there is damage to the wall and to affix a door buffer.
Item 110 Complaint:
Toilet/powder room - there is a roughly repaired patch around the inlet/outlet hose for the toilet pedestal.
Action:
The respondent must make good the repair around the inlet/outlet hose for the toilet pedestal.
Item 111 Complaint
Main bathroom vanity ‑ there are chips to the front corner edges of the vanity.
Action:
The respondent must replace the vanity in the main bathroom.
Item 115 Complaint:
Main bathroom shower ‑ screen door does not close cleanly ‑ warped.
Action:
The respondent must adjust the door or the slew so that the shower screen door in the main bathroom sits flush.
Item 116 Complaint:
Main bathroom bath ‑ chipped tiles around the taps and water spindle.
Action:
The respondent must adjust the door or the slew so that the shower screen door in the main bathroom sits flush.
Item 117 Complaint:
Main bathroom bath ‑ chipped tiles around the taps and water spindle.
Action:
The respondent must replace the chipped tiles around the taps and water spindle in the main bathroom bath.
Item 118 Complaint:
Main bathroom ‑ there is a roughly repaired patch to the right hand side of the vanity.
Action:
The respondent must patch with gyprock, sand and paint the area in the main bathroom to the right hand side of the vanity that has been roughly repaired.
Item 119 Complaint:
Main bathroom ‑ the exhaust fan knocks when operating.
Action:
The respondent must repair the exhaust fan in the main bedroom so that it does not knock when operating and is in working order.
Item 120 Complaint:
Main bathroom ‑ towel rail is loose on the wall.
Action:
The respondent must re-affix the towel rain in the main bathroom securely.
Item 121 Complaint:
Main bathroom - there are cornice splays.
Action:
The respondent must fill and paint the crack in the cornice joint in the main bathroom.
Items 122 and 35 Complaint:
The doors in the main bathroom and ensuite rattle and some readjustment to the striker plates is required to ensure correct operation.
Action:
The respondent must adjust the striker plates in the main bedroom and ensuite so that the doors no longer rattle.
Item 124 Complaint:
Main bathroom ‑ there is cracked and missing grout throughout the entire bathroom.
Action:
The respondent must remedy the grouting in the main bathroom to the extent that it is necessary to complete, repair and make good the grouting work.
Item 33 Complaint:
Ensuite ‑ no grout/sealant along the wall to skirt boards joint lines.
Action:
The respondent must apply a flexible sealant along the junction between the wall and the floor tiles in the ensuite.
Item 36 Complaint:
Ensuite ‑ the middle door hinge is missing.
Action:
The respondent must install a door hinge or a door closer in the middle of the door so that installation is completed as intended by the manufacturer.
Items 37 and 38 Complaint:
Ensuite ‑ vanity ‑ grout work in general is to a very poor standard and grout is very roughly applied to the sides and underneath of the hand basin.
Action:
The respondent must remedy the grouting in the ensuite around the vanity and underneath the hand basin to the extent that it is necessary to complete, repair and make good the grouting work.
Item 39 Complaint:
Ensuite ‑ there are lumps of grout blocking the plug hole of the hand basin (unable to put plug in plug hole).
Action:
The respondent must remove the lumps of grout and clean the hand basin in the ensuite.
Item 40 Complaint:
Ensuite ‑ interior of vanity is dirty, scratched and rough in general.
Action:
The respondent must polish up the vanity basin in the ensuite.
Item 41 Complaint:
Ensuite - there is a piece of timber beading caught down the left hand side of the vanity - needs to be removed.
Action:
The respondent must remove the piece of timber beading that has fallen down the left hand side of the vanity in the ensuite.
Item 42 Complaint:
Ensuite ‑ there is no sealant around the edges of the shower frame (floor and sides included).
Action:
The respondent must apply a flexible sealant around the shower frame in the ensuite.
Item 43 Complaint:
Ensuite - there is a roughly repaired patch around the inlet/outlet hose for the toilet pedestal.
Action:
The respondent must patch, sand and paint the roughly repaired patch around the inlet/outlet hose for the toilet pedestal in the ensuite.
Items 16, 17, 48, 75, 103 and 105 Complaint:
Grout is missing and cracked along the tile floor joint lines in the living room, grout is required along the tile to skirt board joint line in the living room, grout has been roughly applied to window sill, reveals and heads in the kitchen, there no grout/sealant along the wall to skirt boards joint lines in the dining room and grout/sealant roughly applied along the wall to skirt boards joint lines in the laundry and toilet/powder room.
Action:
The respondent must remedy the grouting/sealant, to the extent that it is necessary to complete, repair and make good the grouting/sealing work in:
(a)the living room floor where grout is missing and cracked along the tile floor joint lines and where grout is required along the tile to skirting board joint line;
(b)the kitchen where grout is roughly applied to window sill, reveals and heads;
(c)the dining room floor where there is no grout/sealant along the wall to skirting board joint lines;
(d)in the laundry where grout/sealant is roughly applied along the wall to skirting board joint lines; and
(e)toilet/powder room where grout/sealant is roughly applied along the wall to skirting board joint lines.

Item 106 Complaint:
Toilet/powder room - grout is very roughly applied to the door frame reveals, wind is blowing in through the top of the window frame.
Action:
The respondent must patch, sand and paint the crack where the gyprock returns up against the door frame and fill with silicon the gap between the top of the window and the window head in the toilet/powder room.
Items 112, 113 and 125 Complaint:
Main bathroom - grout work in general is to a very poor standard, grout is very roughly applied to the sides and underneath of the hand basin; grout is roughly applied the bases of the door frames.
Action:
The respondent must remedy the grouting to the extent that it is necessary to complete, repair and make good the grouting work in the main bathroom.
Item 114 Complaint:
Main bathroom shower ‑ there is no sealant around the edges of the shower frame (floor and sides included).
Action:
The respondent must apply a flexible sealant around the edges of the shower frame in the main bathroom.
Item 1 Complaint:
Entry/living room front door - door handle is loose.
Action:
The respondent must tighten the door handle of the front door into the entry/living room.
Item 2 Complaint:
Entry/living room front door - there is no weather seal installed around the door frame.
Action:
The respondent must install a weather seal around the door frame of the front door into the entry/living room.
Item 3 Complaint:
Entry/living room front door ‑ paintwork is rough on the front door (brush strokes are very visible and there are paint dribbles down the door ‑ interior and exterior).
Action:
The respondent must sand back the front door into the entry/living room and repainting it.
Item 4 Complaint:
Entry/living room front door ‑ thin coat paint to door frame.
Action:
The respondent must apply another coat of paint to the door frame of the front door into the entry/living room.
Item 5 Complaint:
Entry/living room front door – over‑paint on the deadlock and door handle.
Action:
The respondent must remove the paint on the deadlock and door handle to the front door into the entry/living room.
Item 6 Complaint:
Entry/living room ‑ no door buffer behind the front door ‑ there is some damage to the wall plaster from the door handle.
Action:
The respondent must touch up with paint the marks on the door frame of the front door into the entry/living room at the right hand side.
Item 9 Complaint:
Entry/living room front door ‑ paint touch-ups required to door frame at the right hand side.
Action:
The respondent must fill the hole in the wall, paint the immediate area and affix a door buffer behind the front door into the entry/living room.
Item 27 Complaint:
Master bedroom door ‑ door is binding (rubbing) on the carpet.

Action:
The respondent must removing the master bedroom door and plane a portion off the bottom of the door.
Items 76, 80, 82, 87 and 92 Complaint:
Doors to the living room, bedroom 2, the robe in bedroom 2, bedroom 3 and bedroom 4 are loose, requires striker plate to be adjusted.
Action:
The respondent must adjust the striker plates of:
(a)the door to the living room;
(b)the door to bedroom 2;
(c)the door to the walk‑in robe in bedroom 2; and
(d)the door to bedroom 4,
so that the doors are no longer loose.

Item 81 Complaint:
Bedroom 2 ‑ there is a chip out of the edge of the door.
Action:
The respondent must sand back and repaint the edge of the door to bedroom 2.
Items 83, 88, 89, 95 Complaint:
There is paint over spray on the striker plates to the walk‑robe door in bedroom 2, to the door in bedroom 3, to the handles of the walk‑in robe door in bedroom 3 and to the walk‑in robe door handle in bedroom 4.
Action:
The respondent must clean off the paint:
(a)on the striker plate to the walk‑in robe door in bedroom 2;
(b)on the striker plate to the door in bedroom 3;
(c)on the striker plate and the handles of the walk‑in robe door in bedroom 3; and
(d)on the walk‑in robe door handle in bedroom 4.

Item 85 Complaint:
Bedroom 2 ‑ there is no door buffer to the walk‑in robe door.
Action:
The respondent must affix a door buffer to the walk‑in robe door in bedroom 2.
Item 91 Complaint:
Bedroom 4 - door is binding on the carpet, needs some taken off the bottom of the door.
Action:
The respondent must remove the door in bedroom 4 and take a small portion off the bottom of the door, so that it can be opened and closed without binding on the carpet.
Item 93 Complaint:
Bedroom 4 - the walk‑in robe door is damaged where the pins have been replaced in the hinges.
Action:
The respondent must repair the damage to the walk‑in robe door and the hinge, and repaint.
Item 98 Complaint:
Laundry ‑ grout is very roughly applied to the door frame reveals hinges.
Action:
The respondent must remedy the grouting where the plasterboard meets the door frame in the laundry to the extent that it is necessary to complete, repair and make good the grouting work.
Item 123 Complaint:
Main bathroom ‑ the door is warped.
Action:
The respondent must replace the door to the main bathroom, if it is not possible to adjust it without damaging it so that it is no longer out of line.
Item 128 Complaint:
Insulation ‑ there is no insulation on the walls above the ceiling of the living/meals and kitchen.
Action:
The respondent must install insulation on the walls above the ceiling of the living/meals and kitchen as required by the Contract.
Item 134 Complaint:
Balustrade ‑ there are bolts/tek screws missing on the balustrade plates to the side of the stairs.
Action:
The respondent must install bolts/tek screws where missing on the balustrade.
Item 135 Complaint:
Front verandah, ramp, stairs and balustrade ‑ there are scratches and pencil lines on the steel posts.
Action:
The respondent must remove the scratches and pencil lines on the steel posts on the front verandah, ramp, stairs and balustrade.
Item 136 Complaint:
Front verandah, ramp, stairs and balustrade ‑ there are holes in the end balusters which need to be caped if not replaced.
Action:
The respondent must weld over the holes in the end balusters on the front verandah, ramp, stairs and balustrade, and repaint them.
Item 149 Complaint:
External cladding ‑ pop rivets are missing in the north‑east corner.
Action:
The respondent must install pop rivets where missing on the external cladding in the north‑east corner of the dwelling.
Item 150 Complaint:
External cladding ‑ pop rivet missing on flashing from weatherboard to corrugated Colorbond cladding under carport.
Action:
The respondent must install pop rivets where missing on flashing from weatherboard to corrugated Colorbond cladding under the carport.
Item 157 Complaint:
Fascia and gutters ‑ there is a gap between the end of the fascia and the infill on the end of the eaves, and the edge of the end fill is not painted.
Action:
The respondent must fill the gap between the end of the fascia and the infill on the end of the eaves, and paint the edge of the end fill.
Item 158 Complaint:
Eaves ‑ there is a patch on the eaves to the right of the front door which is not sanded or painted.
Action:
The respondent must sand and paint the patch on the eaves to the right of the front door.
Items 159 and 160 Complaint:
Downpipes ‑ Colorbond downpipes discharge onto ground; it is recommended that water from downpipes be directed away from the stumps to ensure that there is no settlement of the footings in the long term.
Action:
The respondent must lay spoon drains at the bottom end of the downpipes to direct the water away from the dwelling.
Item 161 Complaint:
Downpipes ‑ the tek screws in the brackets are not the same colour as the brackets.
Action:
The respondent must paint the tek screws in the brackets the same colour as the brackets.
Item 164 Complaint:
Exterior ‑ the PVC vent pipe on the northern side has not been painted.
Action:
The respondent must paint the PVC vent pipe on the northern side the same colour as the house.
Item 144 Complaint:
External cladding ‑ there are tek screws missing on the bottom portion of all the Colorbond wall cladding around the entire building.
Action:
The respondent must install tek screws on the bottom portion of all the Colorbond wall cladding around the entire building.
Item 143 Complaint:
Rear stairs and landing ‑ there are bolts/tek screws missing on the balustrade plates to the side of the stairs.
Action:
The respondent must install tek screws missing on the handrail post to the side of the stairs.
Items 133 and 142 Complaint:
There are non-galvanised base plates on the ramp stumps which have surface rust at the front and rear of the dwelling. All stumps would benefit from the painting of the base of the stumps with bituminous paint.
Action:
The respondent must replace the non-galvanised base plates on the ramp stumps at the front and rear of the building with galvanised based plates and paint the base of these stumps with bituminous paint.
Item 145 Complaint:
External cladding ‑ the Colorbond cladding is not fully into the surround around the meter box on the right hand side.
Action:
The respondent must replace the cladding unless it is possible to seal with silicon the Colorbond cladding so that it is fully into the surround around the meter box and a tight fit.
Item 13 Complaint:
Living room ‑ gaps above window head requires fill.
Action:
The respondent must fill the gap above the window head of the living room windows with a flexible sealant.
Item 14 Complaint:
Living room ‑ cracks in the paintwork along the window sill and reveals.
Action:
The respondent must make good the cracks in the paintwork along the window sill and reveal in the living room.
Items 15, 32 and 25 Complaint:
Paint/powder coating is scraped off from the window frame reveal on the right hand side in the living room, ensuite and master bedroom.
Action:
The respondent must make good the damage to the window frame reveals in the living room, ensuite and master bedroom, where the paint/powder coating has been scraped off the window frame reveals.
Item 24 Complaint:
Master bedroom ‑ gap above window requires filling.
Action:
The respondent must fill the gap above the reveal and window frame of the master bedroom window with a flexible sealant.
Item 26 Complaint:
Master bedroom ‑ grout work is to a sub-standard level around the window frame.
Action:
The respondent must sand back the filler around the window frame in the master bedroom in order to smooth the surface.
Item 29 Complaint:
Ensuite ‑ paint spatters over awning window winder (handle).
Action:
The respondent must remove the paint spatters over the awning window handle in the ensuite.
Item 31 Complaint:
Ensuite ‑ wind is blowing in through the top of the window frame.
Action:
The respondent must seal the top of the window frame in the ensuite.
Item 70 Complaint:
Dining ‑ door is quite difficult/tight to open and squeaks when operated.
Action:
The respondent must adjust the door in the dining room so that it is no longer tight and squeaking when opened.
Item 71 Complaint:
Dining/sliding door ‑ wind is blowing through along the head of the door frame - seals missing.
Action:
The respondent must install seals between the sliding door and the frame in the dining room.
Item 72 Complaint:
Dining/sliding door ‑ cracks in plaster down the sliding door reveals.
Action:
The respondent must patch, sand and paint the cracks in the plaster down the sliding door reveals in the dining room.
Items 73 and 99 Complaint:
Paint/powder coating is scraped off from the door frame in the dining room and from the window frame reveals in the laundry.
Action:
The respondent must make good the damage to the door frame in the dining room and the window frame reveals in the laundry, where the paint/powder coating has been scraped off the window frame reveals.
Item 74 Complaint:
Dining/sliding door ‑ grout is very roughly applied to the door frame reveals.
Action:
The respondent must remedy the grouting to the sliding door frame reveals in the dining room to the extent that it is necessary to complete, repair and make good the grouting work.
Item 100 Complaint:
Laundry ‑ wind is blowing in through the top of the window frame head.
Action:
The respondent must seal the top of the window frame in the laundry.
Item 154 Complaint:
Windows ‑ there is a dent in the runner track to bedroom 2.
Action:
The respondent must straighten the runner track of the sliding window in bedroom 2.
Item 155 Complaint:
Windows ‑ excess silicon around the window frame has not been removed.
Action:
The respondent must remove the excess silicon around the window frame of the windows.
4.The respondent to make good any damage occasioned by compliance with order 3 above, on or before 17 April 2014.

I certify that this and the preceding [800] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS A DAVIES, SENIOR SESSIONAL MEMBER