LEAL and BARRIER REEF POOLS NORTHSIDE PTY LTD
[2022] WASAT 88
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION: LEAL and BARRIER REEF POOLS NORTHSIDE PTY LTD [2022] WASAT 88
MEMBER: MS A KING, MEMBER
MR R WOODFORDE, SESSIONAL MEMBER
HEARD: 29 AUGUST 2022
DELIVERED : 3 OCTOBER 2022
FILE NO/S: CC 72 of 2022
BETWEEN: JOSEPH LEAL
RACHEL LEAL
Applicants
AND
BARRIER REEF POOLS NORTHSIDE PTY LTD
Respondent
Catchwords:
Home building work contract - Building services complaint - Building remedy order - Whether work has been carried out in a proper and proficient manner or is faulty or unsatisfactory - Monetary order sought
Legislation:
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(1), s 5(2), s 11(1)(d), s 36(1), s 36(1)(b), s 36(1)(c), s 36(2), s 38(1)(a), s 38(1)(b), s 41, s 43, s 43(1), s 49
Building Services (Complaint Resolution and Administration) Regulations 2011 (WA), reg 5
Home Building Contracts Act 1991 (WA), s 3
State Administrative Tribunal Act 2004 (WA), s 87(1)
Result:
Application partly allowed
Category: B
Representation:
Counsel:
| Applicants | : | In Person |
| Respondent | : | Mr J Luke (acting as Agent) |
Solicitors:
| Applicants | : | N/A |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Atkinson and Rio Vista Pty Ltd t/a Freedom Pools and Spa [2012] WASAT 116
Brooks and Gransden Building Company Pty Ltd [No.2] [2021] WASAT 86
Gemmill Homes Pty Ltd v Sanders [2018] WASC 179
Hippydayze Pty Ltd and Mener Group Pty Ltd [2019] WASAT 92
Jennings and Howitt [2019] WASAT 133
Lewis and Waco Pty Ltd [2016] WASAT 127
Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S)
McLerie and Koleszko [2014] WASAT 160 (S)
Nelson v Mardesic (1998) 22 SR (WA) 42
Northcott and Realgold Corporation [2020] WASAT 72
Pearce & Anor and Germain [2007] WASAT 291 (S)
Sanders and Gemmill Homes Pty Ltd [2017] WASAT 41 (S)
Trengove and Celebration Nominees Pty Ltd [2012] WASAT 65
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32
REASONS FOR DECISION OF THE TRIBUNAL:
Background and matters not in dispute
A dispute arose between the parties concerning a building service carried out at 14 Lydia Court Greenwood (the property) in relation to the construction and installation of a swimming pool and associated works (the works).
The applicants in the proceedings are Mr and Mrs Leal (applicants) who are the owners of the property. The respondent in the proceedings is Barrier Pools Northside Pty Ltd which was represented at the hearing by one of the directors Mr James Luke who represented the respondent (respondent).
The applicants lodged a complaint on 13 September 2021 relating to a building service and a home building work contract (HBWC) with the Building Commissioner (Commissioner) and the Commissioner accepted the complaint on 8 October 2021. On the 11 January 2022 the Commissioner referred the complaint to the Tribunal under s 11(1)(d) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (the Act). The applicants allege eight items as faulty or unsatisfactory building works and two items relating to a breach of the HBWC.[1]
[1] The applicants prepared a complaints schedule (Schedule) which itemised the complaints under s 11(1)(d) of the Act. We have referred to the items in the same order as the Schedule and identified the hearing book as Exhibit 1. The Schedule is at pages 276 to 285 of the hearing book.
The applicants seek an order to pay under s 36(1)(b) of the Act in respect of the building service complaint items, and a HBWC remedy order under s 43(1) of the Act in respect of the HBWC complaint items. The applicants also seek a monetary order under s 36(1)(c) of the Act to compensate them for the respondent's failure to carry out the building service in a proper and proficient manner or for faulty or unsatisfactory building work and seek costs.
The issues for determination
The issues for determination by the Tribunal in relation to the building service complaints are as follows:
1)Did the respondent carry out a regulated building service?
2)If the answer is yes then, was the building work, the subject of each of the complaint items, not carried out in a proper and proficient manner or is faulty or unsatisfactory?
3)If the answer to both of the above is yes then, what is the appropriate form of the building remedy order (if any)?
The issues for determination by the Tribunal in relation to the HBWC complaints are as follows:
1)Did the parties enter into a HBWC?
2)Did the respondent breach the terms of the HBWC?
3)If the answer to both 1) and 2) above is yes then, what is the appropriate HBWC remedy order (if any)?
4)Should the Tribunal make an order as to costs?
The relevant statutory framework
Section 5(1) of the Act provides that a person may make a complaint to the Commissioner about a regulated building service not being carried out in a proper and proficient manner or being faulty or unsatisfactory. A complaint made under s 5(1) of the Act is defined in s 3 of the Act as a 'building service complaint'.
A 'regulated building service' is defined in s 3 of the Act to include:
(a)a building service carried out by a registered building service provider or an approved owner-builder;
(b)home building work that is -
(i)carried out by a person for another person under a home building work contract or other contract or arrangement for gain or reward; and
(ii)not carried out for a person who is in turn obliged to perform the work under another contract.
(c)any other service or work prescribed for the purposes of this definition[.]
The term 'home building work' has the meaning given in s 3 of the Home Building Contracts Act 1991 (WA) (HBC Act) and includes 'the whole or part of the work of altering, improving or repairing a dwelling'.
Regulation 5 of the Building Services (Complaint Resolution and Administration) Regulations 2011 (WA) (Regulations) imposes the limitation that only a person whose interests are being or have been adversely affected by the carrying out of a regulated building service may make a building service complaint.
Where a building service complaint is referred to the Tribunal by the Commissioner under s 11(1)(d) of the Act, s 38(1)(a) of the Act enables the Tribunal to make a building remedy order where it is satisfied that the regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory. The Tribunal may otherwise decline to make a building remedy order under s 38(1)(b) of the Act.
Under s 36(1) of the Act, a building remedy order made by the Tribunal may require a person who carried out a regulated building service to do one or more of the following:
a)remedy the building service as specified in the order;
b)pay to an aggrieved person such costs of remedying the building service as the Tribunal considers reasonable and specifies in the order; and/or
c)pay an aggrieved person a sum of money specified in the order to compensate the aggrieved person for the failure to carry out the building service in a proper and proficient manner or for faulty or unsatisfactory building work.
A building remedy order may require that the order be complied with within a timeframe specified in the order: s 36(2) of the Act.
Section 5(2) of the Act relevantly provides that an owner may make a complaint to the Building Commissioner about a breach of a HBWC. A complaint made under s 5(2) of the Act is defined in s 3 of the Act as a 'HBWC complaint'.
Where the Commissioner refers a HBWC complaint to the Tribunal under s 11(1)(d) of the Act, the Tribunal may, if satisfied that the order is justified, make a HBWC remedy order, or otherwise decline to make the order: s 43 of the Act. The HBWC remedy orders that may be made by the Tribunal are provided in s 41 of the Act.
Background to the dispute and matters agreed between the parties
The agreement between the parties concerned a HBWC for a building service in relation to the installation of a swimming pool at the property.
1)On 18 May 2020 the respondent provided a quotation to the applicants.[2]
2)On 3 August 2020 the parties executed a standard HWBC for the swimming pool and the works in the sum of $56,000 which included terms and conditions of the contract numbered 1 to 36.[3]
3)The respondent commenced the works in relation to the HWBC on 23 March 2021 and last carried out the works on 15 May 2021.
4)As at the day of the hearing the amount of $3,628.13 remains outstanding as the handover payment.[4]
The conduct of the proceedings and expert evidence
[2] Exhibit 1, page 21.
[3] Exhibit 1, pages 22 to 35.
[4] Exhibit 1, page 36.
The applicants called Mr Bevilaqua of the Swimming Pool and Spa Association of Western Australia (SPASA) to give oral evidence at the hearing.
The respondent also relied on the evidence of Mr Bevilaqua, in addition to the evidence of Mr Alen Krcmar.
The documentary evidence in respect of the proceedings is comprised of the hearing book marked as Exhibit 1.
The Tribunal had the benefit of the report provided to the Tribunal following investigations conducted by a Building and Energy Investigator (BEI) from Building and Energy, Department of Mines, Industry Regulation and Safety (DMIRS), dated 11 January 2022.[5]
[5] Exhibit 1, pages 8 and 9.
The hearing was held over one day with the applicants and the respondent and each of the witnesses attending in person.
At the time of the hearing the parties produced various invoices marked as Exhibits 2, 3, 4, 5 and 6 as well as photographs marked as Exhibit 7.
The Tribunal's decision was reserved.
Breakdown in relationship
The applicants told the Tribunal that the relationship with the respondent had broken down after identification of the confusing pool equipment. It is for this reason, amongst others, that the applicants seek an order, under s 36(1)(b) and (c) of the Act, for the respondent to pay the applicants the sum of money representing the works required to remedy the pool equipment and compensate them for the complaint items. In relation to the pool lights however they are willing to have the respondent attend the property and carry out remedial work.
The respondent was willing to attend the property and carry out any remedial works pursuant to any order of the Tribunal.
The applicants' position in support of a monetary order may be summarised as follows:
1)The applicants at the time of identifying the confusing pool equipment had lost confidence that the respondent could undertake the remedial works in a proper and proficient manner. The applicants stated they did not want the respondent to return to their property at that time to complete the remedial works because of the respondent's poor quality of workmanship.
2)The applicants say that they have now paid contractors to perform remedial works and are seeking reimbursement and further works to be undertaken in relation to the pool lights.
3)It remains unclear as to whether the further remedial works are minor or whether it is possible to complete the remedial works without causing further damage. However, the applicants want the lights changed to swimming pool lights with a white cover in accordance with the HBWC.
The respondent's position in support of a remedial order may be summarised as follows:
1)The respondent has not caused any delay to the completion of the manufacture and installation of the works. It was at all times willing to return to the property to undertake any remedial works and did so a number of times until it was advised by the applicants that it was no longer able to do so. It remains willing to return to the property.
2)A monetary order in relation to the complaint items is not warranted.
Consideration by the Tribunal
For a building remedy order to be made against a person who carried out the work the subject of the building service complaint, the relevant building work must be a 'regulated building service'. We will consider whether the respondent carried out a 'regulated building service' and, if so, whether the building work, the subject of each complaint item, was not carried out in a proper and proficient manner or is faulty or unsatisfactory.
Did the respondent carry out a regulated building service?
A 'regulated building service' is defined in s 3 of the Act to include home building work carried out by a person for another person under a HBWC. The expression 'home building work' for the purposes of the Act has the meaning given in s 3 of the HBC Act which includes 'the whole or part of the work of altering, improving or repairing a dwelling'.
There was no dispute, and we find that the construction and installation of a swimming pool and the works carried out by the respondent is 'home building work' as defined in s 3 of the HBW Act.[6] There was also no dispute, and the Tribunal finds, that the respondent carried out the works under a HBWC, being a contract between a builder and an owner for the performance by the builder of home building work.[7]
[6] In the matter of Atkinson and Rio Vista Pty Ltd t/a Freedom Pools and Spa [2012] WASAT 116, the Tribunal was satisfied that the construction and installation of a swimming pool at the applicant's home amounted to a regulated building service.
[7] See the definition of 'home building work contract' in s 3, HBC Act.
The Tribunal finds that the respondent did carry out a regulated building service which is the subject of the complaint items. Therefore, it is open to us to make a building remedy order against the respondent under s 36(1) of the Act if we are satisfied that the work which is the subject of the complaint items was faulty or unsatisfactory.
Was the building work, the subject of each of the complaint items not carried out in a proper and proficient manner or is faulty or unsatisfactory?
In the matter of Northcott and Realgold Corporation[8] the Tribunal found that the language of the above phrase suggests that it comprises two limbs, rather than being a composite phrase, for the following reasons:
a)the description 'in a proper and proficient' attaches to the manner in which the regulated building service has been carried out;
b)the phrase 'is faulty or unsatisfactory' makes it clear that this element attaches to the regulated building service itself (noting the use of the present tense 'is') rather than to the manner in which it 'has been carried out' (the latter using the present perfect tense); and
c)the limbs are further distinguished by the use of a negative criterion in the first limb ('the regulated building service … has not been carried out in a proper and proficient manner') and a positive criterion in second limb ('the regulated building service … is faulty or unsatisfactory').[9]
[8] [2020] WASAT 72 (Northcott) at [14][15].
[9] Northcott at [14] and [15].
For ease of convenience the Tribunal will refer to the complaint Schedule items 3 to 8 in order[10] and then address items 1 and 2 in the same Schedule and set out its findings and reasons for decision below for each item.
Item 3: limestone stairs
[10] Exhibit 1, page 275.
Ms Leal on behalf of the applicants submitted that email communications prior to the signing of the HBWC demonstrate that the pool equipment could be installed without damage to the limestone stairs.
A site visit by Steve Patterson, the then director of the respondent was made. He examined the property and after the applicants demonstrated where the pool equipment was to be located advised 'no problem, we will dig under [referring to the limestone stairs]' or words to that effect. Then at the time of the works, the applicants were advised that this was not possible.
Ms Leal emphasised that the applicants did not want any extra expenses to be incurred in the carrying out of the works and this was communicated to the respondent. Several site meetings were held with Alen Krcmar, the consultant and Steven Patterson. The situation was discussed fully. The respondent then reversed on the situation of the limestone stairs advising the limestone stairs had to be removed and the respondent would not carry out any remedial works to replace them. The applicants referred to photographs showing the removal and destruction of the limestone stair blocks and advised that they paid for the limestone stairs to be replaced.
The applicants are seeking to have the respondent pay for the cost of repair of the limestone stairs in the sum of $750[11] and an additional sum for the limestone and paving costs in the sum of $450.
[11] Exhibit 1, page 139.
The total payment order sought for this item is $1,200.
The respondent submitted that it was assured by the applicants that the walls pertaining to the limestone stairs were hollow and it could simply dig down to install the pool equipment. Mr Patterson had advised that he confirmed with the applicants the location of the equipment and recommended they put it at the bottom of the limestone stairs. He was assured that the walls were hollow, and the respondent could simply dig down to get the pipes to ground level and only one block needed to be removed which was at the top of the limestone stairs.
After removing the top block, it was evident that the limestone stairs were solid, at which time it was explained to the applicants that they would have to remove several blocks to run the plumbing and that the respondent would not be liable for the replacement of the blocks if they wanted the equipment next to the house.
Upon questioning by the Tribunal, the respondent added that there could have been other options chosen which would not have required the destruction of the blocks. He added he was not a director of the respondent at the relevant time but an employee. He became a director of the respondent at a later date.
Evidence of Mr Krcmar
Mr Krcmar told the Tribunal that any assurances given in relation to the limestone stairs should be understood as conditional. He went to the home several times between March and May 2021 and the applicants came to the showroom. There was significant discussion and opportunity to ask questions. It is common practice to not remedy any damage caused in the construction and replacement of the limestone stairs which was not within the scope of the works.
Findings of the Tribunal
We are satisfied that the applicants indicated where the pool equipment was to be located. This was not in dispute. The respondent advised this was possible allegedly relying on representations made by the respondent. Mr Patterson was said to be living overseas and not available to give evidence. It is unclear to what extent the respondent relied upon information provided by the applicants as opposed to carrying out its own investigations. The Tribunal is satisfied that the walls to the limestone stairs were not hollow and were removed and broken in the process and the Tribunal relies on the photographs provided.[12]
[12] Exhibit 1, pages 173 and 174.
Whilst the pool equipment was located at the applicants' desired location, the respondent admitted upon questioning by the Tribunal that other options were possible to place the pool equipment at the desired location without removing or breaking the limestone stair blocks to the same extent, but other options were not considered at the time.
Accordingly, we are satisfied that the respondent carried out a regulated building service that was not carried out in a proper and proficient manner.
Item 4: back lawn area
The applicants referred to photographs which allegedly show the respondent spreading excess soil over their lawn[13] and referred to an email dated 5 May 2021 from Mr Patterson which states:
The sand that you wish to remove is due to your landscaping and your choice to bring in cracker dust to lay on thus you need to remove sand, I have said to you before now we are not there to prepare your landscaping. We will not be removing further material from your site.
[13] Exhibit 1, pages 170 and 171.
The applicants added that Steve Hellings, a paver, employed by the applicants (who was unable to attend the hearing or give evidence via telephone despite an attempt by the Tribunal) was contacted by Mr Patterson about the excess sand who responded via email:
It's her sand not mine.
The applicants submitted that the sand is part of the pool excavation which is the responsibility of the respondent and should have been removed. It destroyed the lawn and it had to be replaced.
At the time of the swimming pool being delivered the applicants commented on the extra sand which was left and were told that it would be left for the time being to cover infill in case it was needed or could be utilised in paving; then any excess would be removed later.
The applicants submitted that they would not have agreed to sign the HBWC with any provisional or outstanding (unknown sums), and that all costs for the installation of the swimming pool - including removal of sand and debris must be covered in the HBWC.
The applicants are seeking costs in the sum of $7,445 for removal of the sand, replacement lawn and reticulation, bin hire and $250 for costs of removal of sand around the lawn.
The applicants provided invoices for the cost of new lawn in the sum of $624.40[14] and $336.20[15] and the installation of new reticulation in the sum of $900[16] and for the cost of bins to accommodate the removal of extra sand in the sum of $465[17] and in the sum of $320.[18] The applicants explained that their 'paver' did not provide tax invoices and many items for the remedial works were paid for by them in cash.
[14] Exhibit 2.
[15] Exhibit 3.
[16] Exhibit 4.
[17] Exhibit 5.
[18] Exhibit 6.
The respondent submitted that Mr Patterson had advised of a verbal conversation with the applicants about the sand having to go on the lawn and was told 'don't worry about the lawn'.
When asked post excavation what would happen to the sand, Mr Patterson advised that it would be used for backfilling and any leftover would be removed.
Mr Patterson understood it would all be used for backfilling and the only suitable place for the sand during the construction was on the lawn as there was no other place to place it that was suitable. In relation to the photographs, the respondent told the Tribunal that it was a photograph not of the bobcat spreading the sand, but instead attempting to pick it up for backfilling. In doing so the sand is spread out. He denied that excess sand which was left was too high and added that the bobcat did not scoop too low in order to avoid damaging the lawn and any reticulation. He anticipated that the remaining sand would act like topsoil and the grass would grow through it and otherwise denied the claim adding that there may have been excess sand overall sufficient for one bin.
Evidence of Mr Krcmer
Mr Krcmer submitted that there is always excess waste in the works, and it was his usual practice to advise clients to check with the council as to their eligibility to obtain free waste removal. He added that bins and removal of sand is charged from contractor to customer.
Evidence of Mr Bevilaqua
Mr Bevilaqua told the Tribunal that he went to the property on 25 May 2021 for about 2.5 hours. He did not observe the amount of sand. There was sand visible on the property between the paving and around the house and swimming pool. He did not estimate how much.
Findings of the Tribunal
The Tribunal in examining the photographs and weighing up all of the evidence was satisfied that extra sand remained at the property. However, it was not satisfied that the placement of the sand onto the lawn was unsatisfactory. It is unclear whether the lawn would have responded in time after what can be described as significant works. No expert evidence in relation to the viability of the lawn was provided.
The applicants provided photographs said to have been taken on 25 May 2021 (a matter of 10 days after the works finished) by which time the lawn had been removed.[19] The applicants later stated that they may have been mistaken about the date of the photographs.
[19] Exhibit 7.
The Tribunal notes that it should have been within the reasonable contemplation of the parties that given there were no other options for the placement of the sand on the lawn, that there was a reasonable prospect that the lawn would be damaged.
In summary, the Tribunal finds that there was insufficient evidence put to persuade the Tribunal that the damage to the lawn including the reticulation was caused by unsatisfactory or faulty work by the respondent. The Tribunal is satisfied that there was some excess sand at the completion of the works and the works in that respect were not proper or proficient or is faulty and unsatisfactory.
Item 5: swimming pool plumbing at side of house
The applicants submitted that the configuration of the plumbing was confusing and affecting access to the side of the house. It left only a 52 centimetre gap. They requested the respondent rectify it. It refused to do so.
They rely on photographs[20] and on the respondent's email dated 5 May 2021:
The pool was incorrectly plumbed so that it 'pumped out' water instead of filtering it. This had to be re-configured. Leaving a very messy configuration indeed. I agree that the plumbing was in error but has now been changed and everything is functioning satisfactory, 'messy' is an opinion rather than a fact.
[20] Exhibit 1, pages 174 and 175.
On handover, it was discovered that the swimming pool heater had also been plumbed incorrectly and was 'running in reverse' causing warning lights and shut down. This had to be reconfigured. Post reconfiguration, water was coming from the plumbing and under the housing of the heater. It was submitted that 'we have been told that the heater is fine but needs to be positioned to fall to the drain point'.
The applicants are seeking a payment order for rectification by a third party 'Poolwerx' in the sum of $1,160. This includes repositioning of the heater. Poolwerx came out on 26 July 2021 and advised that although the pipes are in the wrong position the system was functioning.
The respondent submitted that no sketch or plan was provided prior to the works. Mr James representing the respondent built the swimming pool equipment and he acknowledged he plumbed it the wrong way. He acknowledges it was confusing. He offered to come back and fix it but was told no one was allowed on to the propery.
He believed a 52 centimetre gap to have been reasonable.
He submitted that the costs incurred are excessive and it would have cost half that price had he done the work.
He otherwise denies the claim as it was all fully functioning.
Evidence of Mr Bevilaqua
The filtration system installed was not of the calibre as would be expected. He was of the view that it needed to be rectified. He understood that the respondent wanted to undertake the works, but it was not allowed back on to the property.
Findings of the Tribunal
The Tribunal noting the admissions of the respondent finds that the works were faulty and unsatisfactory in relation to this item.
In not allowing the respondent to undertake the remedial works however the Tribunal finds that the applicants failed to take reasonable steps to reduce their loss. The Tribunal accepts that the cost to the respondent would have been half of the cost ultimately incurred by the applicants.
Item 6: swimming pool equipment and heater
The applicants complained about loss of water to the swimming pool. They were told by the respondent that it was 'evaporation' but then it was discovered that the swimming pool was pumping water to waste instead of filtering.
The applicants are seeking an order in relation to this item but were unable to quantify the claim.
The respondent admitted there were errors and admitted at the time of the hearing that this was unsatisfactory work. Mr James stated that 'it should have been looked at sooner rather than later' or words to that effect. He was unable to estimate how much water might have been lost.
Evidence of Mr Bevilaqua
Mr Bevilaqua told the Tribunal that he cannot estimate the loss of water in the circumstances described.
Findings of the Tribunal
The Tribunal finds that the works in relation to this item were unsatisfactory, however as the applicants were unable to provide any estimate of their loss this item is dismissed.
Item 7: recovery of costs for wiring damaged during install of daisy swimming pool cover
Evidence of the applicants
The applicants complain that wiring for garden lighting and reticulation was damaged during the works.
The applicants are seeking repair costs in the sum of $300.
The respondent stated the electrical cable was in the way and it was not possible to move it. The respondent denies the applicants are entitled to a payment order.
Evidence of Mr Bevilaqua
Mr Bevilaqua added that if using a machine, it might have got damaged but if using a spade, it would be unlikely, however he cannot comment on whether the works were unsatisfactory.
Findings of the Tribunal
The Tribunal having considered all of the evidence, is not satisfied that the works in relation to this item were not carried out in a proper and proficient manner or are faulty or unsatisfactory as a result of a lack of evidence and accordingly this item is dismissed.
Item 8: recovery of all costs
The applicants are seeking costs involved in rectifying this matter and are relying on its Schedule of costs.[21]
[21] Exhibit 1, page 251.
Costs and compensation sought by the applicant
•Australia Post registered mail - $27.65;
•Department of Mines, Industry Regulation and Safety - $238;
•invoices lawn - $4,673;
•soil removal - $250;
•electrics - $300;
•Limestone stair repairs - $750;
•Poolwerx – plumbing - $1,160;
•repaving - stairs/landing/side - $450;
•repair damaged wall - $250; and
•balance invoices outstanding - $8,098.65.
After discussions the applicants sought to amend their claim to include further matters. As the respondent had notice and did not object, the Tribunal allowed the amendment and dealt with the complaint item.
The HBWC
Item 8: swimming pool lights
The applicants submitted that the swimming pool lights fitted to the swimming pool are contrary to what they chose and in breach of the HBWC. The HBWC refers to lights that have a white cover and the lights they have, have a black cover. The applicants relied on a photograph in this regard.[22]
[22] Exhibit 1, page 190.
The applicants are seeking a refund for the swimming pool light costs of $750 and replacement with the promised lights at a cost of $450 x 4 = $1,800. At the time of the hearing the applicants agreed for the respondent to remedy the swimming pool lights.
The respondent submitted that the swimming pool lights have a surround which is clear not black and just appears to be black and the brochure that the applicants lodged with the Tribunal does not belong to its company.[23] The HBWC refers to Spa Electrics LED lights not Astral lights (as shown in the brochure). The same type of lights are used in all of the respondent's swimming pools, including its display swimming pool.
Evidence of Mr Krcmer
[23] Exhibit 1, pages 81 and 82.
Mr Krcmer told the Tribunal that the swimming pool lights were wrongly itemised on the quote as the respondent's company only supplies translucent or clear lights. He recalls the signing of the HBWC in the showroom. It took two to three hours. The intent was to supply the standard lights which are transparent.
Findings of the Tribunal
The Tribunal has referred to the HBWC quotation which was accepted and forms part of the contract between the parties. Under the heading 'Extras' the quotation reads:
2nd LED lights (white covers)
This entry is repeated for third and fourth lights. The Tribunal is satisfied that the respondent has not observed the HBWC in installing translucent lights or black lights as this is not what the applicants bargained for. The Tribunal is satisfied that the making of a remedy order therefore is justified.
Item 9 - fencing to neighbouring property
The applicants submitted that the agreement was that the respondent would take down the fence in order to allow access to the property but reinstate fencing at the end of the day and this did not occur. The applicants and the neighbour were inconvenienced as a result. The applicants were unable to quantify their loss.
The respondent was unable to explain what happened in relation to the fencing.
Evidence of Mr Krcmer
Mr Krcmer was unable to comment.
Findings of the Tribunal
The Tribunal has had regard to the HBWC and notes that in accordance with paragraph 6, the applicants provided an Access Indemnity to the respondent. In addition, the Tribunal notes that the applicants are not entitled to claim for loss suffered by the neighbour and finds that mere inconvenience suffered by the applicants is insufficient to satisfy the Tribunal that in the circumstances justify the making of an order. This item is therefore dismissed.
1:delay in swimming pool construction Item
The applicants submitted that the swimming pool was to be installed in October 2020 or early November 2020 at the latest. There were personal family reasons as to why the swimming pool had to be in by Christmas 2020 and this was communicated to the respondent. Various delays occurred and the works were not completed until 15 May 2021. The applicants in answer to questions by the Tribunal stated they were not aware that they were able to put an end date in the HBWC and did not insist on one.
The applicants are seeking the sum of $5,600, plus the increase cost of remedial works in the sum of $6,510 plus, the increased cost of stone (acknowledging the monies owed in the sum of $3,658.13) therefore total $17,300.52 plus any additional ongoing costs.
The respondent submitted that the delays were due to the delays by the manufacturer of the shell of the swimming pool which is located in Queensland. This was not known at the time. Accordingly, the applicants were advised that the respondent could deliver the swimming pool in accordance with the timelines requested.
Evidence of Mr Krcmer
Mr Krcmer told the Tribunal that the delay was caused by the manufacturer of the shell of the swimming pool.
Findings of the Tribunal
The Tribunal having referred to the HBWC notes that there is no end date or clause stipulating that 'time is of the essence' or in other words, that the obligations must be completed on time and that 'time is material to the Contract'.[24]
[24] Bryan A Garner, edition (2001) Black's Law Dictionary (Second Pocket Edition) West Publishing Company, page 584.
The Tribunal accepts the evidence of the respondent and is satisfied on all of the evidence that the delay was caused by a third party and was out of the control of the respondent.
We are not satisfied that the circumstances justify the making of an order and accordingly decline to make a HBWC order and dismiss this item of complaint.
Item 2:changes to the HBWC
The applicants told the Tribunal that the original HBWC was signed however later amended by the respondent. Ms Leal provided to the Tribunal her version of the HBWC in support however did not have a copy of the amended HBWC. She referred to various emails between the parties.
She added that the top copy of the HBWC has been altered and this came to her attention when comparing the contracts. She added 'any changes would have been initialled by us'.
The respondent relied on the affidavit of Alen Krcmer, sales consultant dated 5 June 2021. Mr Krcmer admits that he made changes to the HBWC in the presence of the applicants but does not attach a copy of the HBWC or detail the changes made other than to state that they were for the benefit of the customer.
He told the Tribunal that some of the written comments on the page were however not initialled by him and he was unable to identify the initials. He thinks the pages did not stencil through to the underlying pages of the HBWC as they were not in the correct position or loose. This was inadvertent.
Findings of the Tribunal
The Tribunal cannot be satisfied that the HBWC was altered by the respondent after it was signed by the applicants and without the knowledge of the applicants, as there is insufficient corroborating evidence. As the Tribunal on balance cannot be satisfied of the allegations made, the Tribunal declines to make an order and we dismiss this item of complaint.
What is the appropriate building remedy order in relation to each of the items not carried out in a proper and or proficient manner or for faulty or unsatisfactory building work?
The Tribunal may require a person who carried out a regulated building service that is faulty or unsatisfactory to be the subject of a building remedy order. Section 36(1) of the Act confers discretion on the Tribunal as to the form of the building remedy order. The building remedy order may specify the work to be performed or require a sum of money to be paid to the aggrieved person to remedy the building service or as compensation for the work being faulty or unsatisfactory however it is not the case that any failure to carry out the building service in a faulty or unsatisfactory manner must result in the grant of a building remedy order.[25]
[25] Lewis and Waco Pty Ltd [2016] WASAT 127 at [9].
The applicants are seeking a monetary order under s 36(1)(b) of the Act because they have already paid for a third party to undertake remedial works and assert that at the relevant time there was a breakdown in their relationship.
The relationship at the time was deemed irretrievable as explained in Trengove and Celebration Nominees Pty Ltd [2012] WASAT 65 and, more recently, in Brooks and Gransden Building Company Pty Ltd [No.2] [2021] WASAT 86 (Brooks), in that they had lost confidence and were not then, but now are, willing to have the respondent return to the property.
The applicants have no right to elect the remedy sought under s 36(1) of the Act but are entitled to express a preference. In Gemmill Homes Pty Ltd v Sanders [2018] WASC 179 (Gemmill), Smith AJ, as her Honour then was, observed:[26]
133It must be borne in mind that the statutory limits on the exercise of the discretion to make a building remedy order are only those set out in s 38. The repository of the power conferred to make an order (the Tribunal) must form an opinion 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.
134If the requisite opinion is formed, the Tribunal is required to make a building remedy order. It then has to exercise the discretion conferred in s 36(1) to make a particular order in the form of s 36(1)(a), (b) or (c). Thus, no 'right' or requirement on a party to a complaint to elect arises.
[26] Gemmill at [133]-[135].
It follows that the Tribunal cannot fetter its discretion by simply adopting the applicants' preference for a monetary order. The applicants' preference, and reasons for seeking a monetary order, however, are relevant matters for the Tribunal to consider when determining the type of building remedy order to make.[27]
[27] Gemmill at [147].
In Hippydayze Pty Ltd and Mener Group Pty Ltd [2019] WASAT 92 (Hippydayze), the Tribunal identified the following matters (which are not exhaustive) that may be relevant to the exercise of the Tribunal's discretion under s 36(1) of the Act, particularly when exercising its discretion to make a building remedy order in monetary terms:[28]
… [w]hether there has been an irretrievable breakdown in the relationship between the parties (Trengove and Celebration Nominees Pty Ltd [2012] WASAT 65 at [36]); whether an owner has justifiably lost confidence in the workmanship and skill of the respondent (Nelson v Mardesic (1998) 22 SR (WA) 42); whether the respondent has attempted to remedy the regulated building service previously unsuccessfully and whether the respondent has refused to perform remedial work when invited to do so[.]
[28] Hippydaze at [126].
It is common practice to give a builder respondent an opportunity to remedy its own defective work. This is because an order to remedy compensates the owner while minimising the hardship to the builder who can usually carry out the work at substantially less cost than the amount charged by a third party contractor.[29] However, the nature and extent of the complaints may raise concerns about the proficiency and competency of the builder and support a finding by the Tribunal that a monetary order is more appropriate than ordering a builder to perform remedial work.[30]
Findings in relation to the relationship breakdown
[29] Nelson v Mardesic (1998) 22 SR (WA)42 at 46.
[30] Jennings and Howitt [2019] WASAT 133 at [31].
The Tribunal is satisfied that the relationship between the parties after several errors came to light, reached a point where the applicants lost confidence in the workmanship of the respondent. The bundle of email communications between the parties supports this finding.[31]
[31] Exhibit 1.
Consequently, we find that a building remedy order, in the form as set out below, should be made against the respondent under s 36(1)(a) or s 36(1)(b) of the Act in relation to the following items:
Item 1
This complaint item is dismissed.
Item 2
This complaint item is dismissed.
Item 3
As the applicants were only able to provide an invoice in relation to limestone stairs in the sum of $750. The Tribunal is satisfied that an order should be made in that sum.
Item 4
The Tribunal is satisfied that it should make an order for the invoices provided in relation to the bins which it considers reasonable, totalling the sum of $785.
Item 5
The Tribunal was satisfied that it should make an order consistent with the invoice provided in relation to the swimming pool equipment which it considers reasonable in the sum of $1,160.
Item 6
This complaint item is dismissed.
Item 7
This complaint item is dismissed.
Item 8
The Tribunal is satisfied that the relationship between the parties has now improved somewhat, and the respondent is willing to attend the property in order to install the swimming pool lights with a white cover. Accordingly, the Tribunal will make an order pursuant to s 36(1)(a) that the respondent remedy the swimming pool lights within 28 days of the date of this decision or as otherwise agreed and on a date that is mutually convenient to the parties.
Item 9
This complaint item is dismissed.
Application for costs
Costs
The starting point in any analysis of the circumstances in which the Tribunal will make an order for costs is s 87(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) which creates the presumption of a 'no costs jurisdiction'.
This is, however, subject to the broad discretion in s 88(2) of the SAT Act and s 49 of the Act.
Although s 49 of the Act broadens the Tribunal's discretion in relation to costs, the provision should not be understood as providing that costs will generally follow the result. It is neutral in effect and should be applied in the manner which is consistent with and reinforces the objectives and procedures of the Tribunal, and any relevant factors which point to the justice of the case requiring an award of costs.[32]
[32] Pearce & Anor and Germain [2007] WASAT 291 (S).
These principals include:
a)where a party conducts itself inappropriately or unreasonably, particularly where the conduct leads to unnecessary costs to the other party;
b)where credibility of evidence is at the heart of a matter;
c)where the application undermines the integrity of proceedings under the relevant Act;
d)where the case is weak, being incredible or implausible or obviously unmeritorious;
e)where a party has to embark in proceedings to vindicate its clear contractual entitlement; and
f)the circumstances of the case having regard to the above, or other factors, are such that the justice of the case supports moving away from the initial position that each party should bear their own costs.[33]
[33] McLerie and Koleszko [2014] WASAT 160 (S) at [3] and Sanders and Gemmill Homes Pty Ltd [2017] WASAT 41 (S) at [8] and [9].
Whilst the above are some of the factors the Tribunal will look at and may take into account when making costs orders, the underlying consideration for the Tribunal when determining an application for a costs order will be whether the justice of the case supports moving away from the initial position that each party should bear its own costs.[34]
Applicants' submissions as to costs
[34] Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S) at [15] and Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32
Ms Leal submitted that she decided to send mail by registered post in part due to the history of the matter. In addition, she is seeking reimbursement for the application fee for the cost of lodging the complaint with the Commissioner.
Respondent's submissions as to costs
The respondent did not make any submissions in relation to costs other than to deny the applicants' claim.
Findings of the Tribunal.
The Tribunal is not satisfied that the costs of registered post to the respondent and the cost of the application fee are costs incurred as a result of a party acting inappropriately or unreasonably. It also cannot be said that the respondent's case is a case that is weak, being incredible or implausible or obviously unmeritorious. The Tribunal declines to make an order as to costs.
Orders
The Tribunal orders:
1.The respondent must pursuant to s 36(1)(a) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) remedy the swimming pool lights to swimming pool lights with a white cover within 28 days of the date of this order or as otherwise agreed between the parties and on a date that is mutually convenient to the parties and the work is to be carried out in a proper and proficient manner protecting all adjacent surfaces.
2.The respondent must pay to the applicants by way of remedial costs in relation to items 3, 4 and 5, the sum of $2,695 pursuant to s 36(1)(b) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) within 28 days of the date of this order.
3.Pursuant to s 46(2) of the State Administrative Tribunal Act 2004 (WA) items 1, 2, 6, 7 and 9 are dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS A King, MEMBER
3 OCTOBER 2022
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