LEE and HOLMES - [2020] WASAT 108

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT (WA) 2011
CITATION:   LEE and HOLMES [2020] WASAT 108
MEMBER:   MS N OWEN-CONWAY, MEMBER
MR P MARSHALL, SESSIONAL MEMBER

HEARD:   17 AND 18 FEBRUARY AND 21 MAY 2020
DELIVERED          :   7 SEPTEMBER 2020
FILE NO/S:   CC 1635 of 2019
BETWEEN:   YU LIAN LEE
Applicant
AND
PETER JAMES HOLMES
First Respondent
ELEVEN (AUS) PTY LTD
Second Respondent

FILE NO/S: CC 1636 of 2019
BETWEEN: SU LIN YONG
Applicant
AND
PETER JAMES HOLMES
First Respondent
ELEVEN (AUS) PTY LTD
Second Respondent

FILE NO/S: CC 1889 of 2019
BETWEEN: SU LIN YONG
Applicant
AND
PETER JAMES HOLMES
Respondent

FILE NO/S: CC 1892 of 2019
BETWEEN: YU LIAN LEE
Applicant
AND
PETER JAMES HOLMES
Respondent

Catchwords:

A person who carried out regulated building service - No evidence that the construction or any part was 'carried out' by the respondent - Applicants asserted that the respondent did not perform any regulated building service - Applicants sought an order that the respondent pay the remedial costs of the faulty and unsatisfactory regulated building service

Legislation:

Architects Act 2004 (WA)
Building Act 2011 (WA), s 16(j)
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(1), s 11(1)(d), s 36(1)(a), s 36(1)(b), s 38(1)
Home Building Contracts Act 1995 (WA), s 3
State Administrative Tribunal 2004 (WA), s 15

Result:

Declined to make an order

Category: B

Representation:

CC 1635 of 2019

Counsel:

Applicant	:	In Person
First Respondent	:	In Person
Second Respondent	:	Mr S Leroy

Solicitors:

Applicant	:	N/A
First Respondent	:	N/A
Second Respondent	:	N/A

CC 1636 of 2019

Counsel:

Applicant	:	Yu Lian Lee (acting for applicant)
First Respondent	:	In Person
Second Respondent	:	Mr S Leroy

Solicitors:

Applicant	:	N/A
First Respondent	:	N/A
Second Respondent	:	N/A

CC 1889 of 2019

Counsel:

Applicant	:	Yu Lian Lee (acting for applicant)
Respondent	:	In Person

Solicitors:

Applicant	:	N/A
Respondent	:	N/A

CC 1892 of 2019

Counsel:

Applicant	:	In Person
Respondent	:	In Person

Solicitors:

Applicant	:	N/A
Respondent	:	N/A

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

Hadjiloucas v Crean [1988] 1 WLR 1006
Hawke and Ennis [2018] WASAT 118
Raftland Pty Ltd v Federal Commissioner of Taxation (2008) 238 CLR 516
Shami and Teo [2017] WASAT 73
Shaw v McLeod (unreported, WASC, Library No 4707, 8 November 1982

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 17 and 18 February 2020 and 21 May 2020 the following proceedings were heard together:
1)CC1635/2019 Yu Lian Lee (applicant) Peter James Holmes and Eleven (Aus) Pty Ltd (first and second respondents respectively).
2)CC1636/2019 Su Lin Yong (applicant) and Peter James Holmes and Eleven (Aus) Pty Ltd (first and second respondents respectively).
3)CC 1889/2019 Su Lin Yong (applicant) and Peter James Holmes (respondent).
4)CC 1892/2019 Yu Lian Lee (applicant) and Peter James Holmes (respondent).
On 10 December 2019 the Tribunal directed that all four proceedings should remain separate but be heard and determined together and that the evidence in one proceeding 'is to be evidence any other proceeding'.
For the reasons explained below, after reserving its decision, the Tribunal makes the final orders in each proceeding:

CC 1635/2019

1.Insofar as the applicant, Yu Lian Lee claims against the second respondent, Eleven (Aus) Pty Ltd, for an order pursuant to s 36(1)(a) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) the orders made on 10 March 2020 comprise the final orders in this proceeding in respect of the remediation of the building services complained of and identified in that order (complaint items 1, 2, 3, 6, 7, 9, 10, 11 and 12 inclusive).
2.Otherwise the Tribunal declines to make a building remedy order as sought against the second respondent, Eleven (Aus) Pty Ltd in respect of the remaining complaint items (complaint items 4, 5, 8, 13 and 14).
3.Further to order 2 above the proceeding against the second respondent, Eleven (Aus) Pty Ltd is otherwise dismissed.
4.The Tribunal declines to make a building remedy order against the first respondent, Mr Peter James Holmes as sought or at all.
5.The proceeding against the first respondent, Peter James Holmes, is dismissed.

CC 1636/2019

1.Insofar as the applicant, Su Lin Yong claims against the second respondent, Eleven (Aus) Pty Ltd for an order pursuant to s 36(1)(a) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), the Tribunal orders made on 10 March 2020 comprise the final orders in this proceeding in respect of the remediation of the building services complained of and identified in that order (complaint items 1 to 12 inclusive).
2.Otherwise the Tribunal declines to make a building remedy order as sought against the second respondent, Eleven (Aus) Pty Ltd in respect of the remaining complaint items (complaint items 13, 14 and 15).
3.Further to order 2 above the proceeding against the second respondent, Eleven (Aus) Pty Ltd is otherwise dismissed.
4.The Tribunal declines to make a building remedy order against the first respondent, Mr Peter James Holmes as sought or at all.
5.Further to order 4 above, the proceeding against the first respondent, Mr Peter James Holmes is otherwise dismissed.

The dispute between the respective applicants and both respondents in CC 1635/19 and 1636/19 were substantially resolved following a mediation on 10 March 2020, when orders were made in each of those proceedings against Eleven (Aus) Pty Ltd (Eleven) requiring the latter to remedy certain items of complaint in each proceeding. No other orders were sought against Mr Holmes or Eleven in either of those proceedings. Accordingly, the final orders referred to above were made in those proceedings. The details are explained in these reasons below.

CC 1889/2019

1.The Tribunal declines to make a building remedy order against the respondent (Mr Holmes) as sought or at all.
2.Further to order 1 above, the proceeding against the respondent (Mr Holmes) is otherwise dismissed.

CC 1892/2019

1.The Tribunal declines to make a building remedy order against the respondent (Mr Holmes) as sought or at all.
2.Further to order 1above, the proceeding against the first respondent (Mr Holmes) is otherwise dismissed.

The issues that were before the Tribunal

Can and should the Tribunal make an order pursuant to s 36(1)(b) and s 38(1) of theBuilding Services (Complaint Resolution and Administration) Act 2011 ( (WA)) BSCRA Actagainst Mr Holmes and/or Eleven in CC 1635/19 and CC 1636/19, and if so what order should the Tribunal make?

These issues in CC 1635/19 and CC 1636/19 were ultimately resolved largely by consent orders made against Eleven on 10 March 2020 following mediation.

Can and should the Tribunal make an order pursuant to s 36(1)(b) and s 38(1) of the BSCRA Act against Mr Holmes in CC 1889/19 and CC 1892/19?

The Tribunal has resolved the issues in CC 1635/19, CC 1636/18, CC 1889/19 and CC 1892/19 by declining to make the orders sought against Mr Holmes, because it is not satisfied that Mr Holmes is 'a person who carried out the regulated building service' that is the subject of the complaints and the proceedings.

What is each proceeding about?

CC 1635/2019

On or about 17 October 2019 the delegate of the Building Commissioner in Western Australia (Commissioner) formally accepted a complaint made by Ms Lee against Eleven and Mr Holmes concerning 14 complaint items involving the supply and installation of doors and windows to the residential dwelling constructed at No. 23B MacLeod Road, Applecross (23B). The dwelling constructed on 23B is a large four level home. This dwelling is positioned furthest from MacLeod Road.

CC 1636/2019

On or about 17 October 2019 the Commissioner's delegate accepted a complaint made by Ms Yong (represented by Ms Lee) against Eleven and Mr Holmes concerning 15 complaint items involving the supply and installation of doors and windows to the residential dwelling constructed at No. 23A MacLeod Road, Applecross (23A). The dwelling constructed on 23A is a large three level home. This dwelling is positioned closest to MacLeod Road.

CC 1889/2019

By 9 December 2019 the Commissioner's delegate formally accepted a complaint made by Ms Yong (represented by Ms Lee) against Mr Holmes concerning 11 complaint items arising from the construction of the residential dwelling at 23A, in addition to the complaints made in CC 1636/2019. By the time of the final hearing those 11 items had been reduced to and collapsed into seven items as follows:

Complaint Item Description	Evidence	Relief Sought
1.	South western side Stormwater drainage/downpipe. Downpipe finished short, grate not level. Poor cutting of tiles around the drain.	Home Integrity Building Consultant Report dated 25/11/2019 Defect 1 Exterior	Financial settlement for remedial works by 3^rd party. Cost to be advised
2.	North western side Downpipe not aligned centrally over the stormwater drainage grate. Inadequate clearance from downpipe to drainage grate	Home Integrity Building Consultant Report dated 25.11.2019 Defect 2 Exterior	Financial settlement for remedial works by 3rd party. Cost to be advised
3.	Laundry Cabinets, large gap to top scribe above overhead cabinets	Home Integrity Building Consultant Report dated 25.11.2019 Defect 3. Interior	Financial settlement for remedial works by 3rd party. Cost to be advised
4.	Master Ensuite Water is ponding	Home Integrity Building Consultant Report dated 25.11.2019 Defect 4. Interior	Financial settlement for remedial works by 3rd party. Cost to be advised
5.	South side Stormwater drainage / downpipe. Grate not level. Poor cutting of tiles around the drain.	Home Integrity Building Consultant Report dated 25.11.2019 Defect 5 Exterior	Financial settlement for remedial works by 3rd party. Cost to be advised
6.	South eastern side Stormwater drainage grates / downpipes. Downpipes not aligned centrally over stormwater drainage grates.	Home Integrity Building Consultant Report dated 25.11.2019 Defect 6. Exterior	Financial settlement for remedial works by 3rd party. Cost to be advised
7.	East Side Front fence. Letterbox not built in.	i) Home Integrity Building Consultant Report dated 25.11.2019 Defect 7 Exterior ii) Email to Builder requesting mailbox to be in corporated	Financial settlement for remedial works by 3rd party. Cost to be advised.

In addition the consolidated schedule of complaints in CC 1889/2019 contained an item that was not referred by the Commissioner pursuant to s 11(1)(d) of the BSCRA Act. That complaint item was not within the Tribunal's jurisdiction, it not having been referred by the Commissioner.

CC 1892/2019

By 9 December 2019 the Commissioner's delegate accepted a complaint made by Ms Lee against Mr Holmes concerning 29 complaint items arising from the construction of the residential dwelling at 23B, in addition to the complaints made in CC 1635/19. By the time of the final hearing those 29 items had been reduced to and collapsed into nine items as follows:

Complaint Item Description	Evidence	Relief Sought
1.	East side - Front fence Letter box not built as per Building Permit	Home Integrity Building Consultant Report dated 25/11/2019 Defect 1	Financial settlement for remedial works by 3^rd party. Cost to be advised
2.	Front Entry Planter boxes are leaking	Home Integrity Building Consultant Report dated 25.11.2019 Defect 2	Financial settlement for remedial works by 3rd party. Cost to be advised
3.	Front Entry Outlet to balcony drain not installed as per Building permit ie:- plans show that drain discharging to southern elevation.	Home Integrity Building Consultant Report dated 25.11.2019 Defect 11	Financial settlement for remedial works by 3rd party. Cost to be advised
4.	Family Room Large aces hold cut to ceiling bulkhead by builder	Home Integrity Building Consultant Report dated 25.11.2019 Defect 3	Financial settlement for remedial works by 3rd party. Cost to be advised
5.	Kitchen Kickboard detached under dishwasher	Home Integrity Building Consultant Report dated 25.11.2019 Defect 4	Financial settlement for remedial works by 3rd party. Cost to be advised
6.	Kitchen Drawer runners too short to access rear bin	Home Integrity Building Consultant Report dated 25.11.2019 Defect 5
7..	Guest Bathroom Striker Plate/latch missing from door.	Home Integrity Building Consultant Report dated 25.11.2019 Defect 6	Financial settlement for remedial works by 3rd party. Cost to be advised
8.	Guest Bathroom Drainage grate sits proud of tiles. Water is pooling.	Home Integrity Building Consultant Report dated 25.11.2019 Defect 7	Financial settlement for remedial works by 3rd party. Cost to be advised.
9.	Basement carpark Concrete is cracking. Expansion/control joints not installed as required	Home Integrity Building Consultant Report dated 25.11.2019	Financial settlement for remedial works by 3rd party. Cost to be advised.

In each of the four proceedings the respective applicants sought an order that the respondents pay the cost of remedying the building service complained of pursuant to the Tribunal's power conferred by s 38(1) and s 36(1) of the BSCRA Act. The sum claimed across all four proceedings is $213,279 (a combination of the following sums - $162,236.25 (for 23B) and $51,042.75 (for 23A)).

The Tribunal's jurisdiction to hear and determine the disputes and the Tribunal's powers

All four complaints were referred to the Tribunal by the Commissioner's delegate pursuant to s 11(1)(d) of the BSCRA Act (the relevant enabling Act for the purposes of s 15 of the State Administrative Tribunal Act 2004 (WA) (SAT Act)). Once referred to the Tribunal, the proceedings fall within the Tribunal's original jurisdiction as provided for by s 15 of the SAT Act.
The BSCRA Act empowers the Tribunal to make a building remedy order against 'a person who carried out a regulated building service' that is complained of (see s 36(1) and s 38(1) of the BSCRA Act).
A regulated building service relevantly means a building service 'carried out' by a registered building service provider or 'home building work' 'carried out by a person for another person pursuant to a home building work contract or other contract or arrangement for gain or reward' (s 3 of the BSCRA Act).
It is beyond argument that the construction of the two dwellings on 23A and 23B is each a 'building service' as defined and is also 'home building work' as defined in s 3 of the BSCRA Act and s 3 of the Home Building Contracts Act 1995 (WA) (HBC Act). The construction of the two dwellings was carried out, on the evidence, for gain or reward.
While Mr Holmes is a registered building service provider because he is a registered 'building service contractor' (registration number 11636), the Tribunal must be satisfied that the work was 'carried out' by him. If he is a person who carried out the regulated building service complained of, the Tribunal has the power to make an order that he pay the cost of remedying the same pursuant to s 36(1)(b) and s 38(1) of the BSCRA Act. If he is not a person who 'carried out' the regulated building service complained of, the Tribunal cannot make an order pursuant to s 36(1)(b) and s 38(1) of the BSCRA Act against him.
The Tribunal has recently had the opportunity to consider the cases relevant to a conclusion about who is a person who 'carried out' a regulated building service. That phrase does not apply to the person who merely undertakes the physical labour tasks in the construction of the dwelling. It refers to the person who carries the responsibility of the construction of the edifice (as described in Shaw v McLeod (unreported, WASC, Library No 4707, 8 November 1982)) as cited and applied in Shami and Teo [2017] WASAT 73 (Shami). Whilst it is a question of fact, who did create or construct the edifice, in Hawke and Ennis [2018] WASAT 118, the Tribunal concluded, unsurprisingly, that the entity that issued the invoices to the owner and deposited the payment for those invoices, was the entity that 'carried out' the regulated building service on the evidence in that proceeding. The responsibility for the construction of the edifice and the 'building project' calls for an examination of all aspects of the alleged involvement of the person alleged to be the one who carried out the regulated building service, from quoting for and contracting with the owner, obtaining authorisation to construct, purchasing or calling for the supply of the required goods and services for the construction, supervising the performance of the supply of the goods and services on the site, paying for the goods and services supplied, paying for the cost of the goods and services incurred the construction, rendering invoices to the owner for those cost and receipting the funds paid.
The applicants rely on two 'contracts' which on their face identify Mr Holmes as a 'builder' and two building permits issued to Mr Holmes for the construction of the two dwellings to establish that he is the person against whom an order may be made by the Tribunal pursuant to s 36(1)(b) and s 38(1) of the BSCRA Act.
As a matter of law a court (and tribunal) may disregard an instrument such as an agreement where the same does not fully disclose the legal relations, rights, entitlement and liabilities of the parties thereto (Raftland Pty Ltd v Federal Commissioner of Taxation(2008) 238 CLR 516). This might arise where the instrument or series of instruments were intended to deceive third parties as to the true intention (second example given by Mustill LJ in Hadjiloucas v Crean [1988] 1 WLR 1006 at [1019]) (Hadjiloucas). It may also arise where the facts and circumstances of the true position of the parties are so divergent from the contents of the instrument as to conclude that the parties did not intend for the parties to have the legal relations, rights, entitlements or obligations as disclosed on the face of the instrument (first example given in Hadjiloucas). In this proceeding the Tribunal finds that the contracts were not intended to be performed in their terms or at all and that the two building permits were obtained in the name of Mr Holmes, with full knowledge of Mr Holmes and the respective applications that Mr Holmes would not construct the two dwellings. There is direct, clear unchallenged evidence of that position.
The question in these proceedings is whether Eleven and/or Mr Holmes is that person, on the evidence. For the reasons referred to below, the Tribunal concludes Mr Holmes is not that person. There is no need for the Tribunal to consider the position with respect to Eleven, as consent orders were made that substantially disposed of the disputes in CC 1635/2019 and CC 1636/2019 on 10 March 2020.

The history of the proceedings before the Commissioner

On 8 July 2019 Ms Lee (as was subsequently made clear, on behalf of Ms Yong) lodged a complaint with the Commissioner against Mr Shayne Leroy (Mr Leroy) on the basis of faulty and unsatisfactory window and door supply and installation, or installation of doors and windows that was not proper and proficient in respect of construction of the dwelling at 23A. The complaint was made pursuant to s 5(1) of the BSCRA Act. The complaint comprises 15 complaint items This became CC 1636/2019 when referred to the Tribunal by the Commissioner pursuant to s 11(1)(d) of the BSCRA Act.

Also on 8 July 2019 Ms Lee lodged a complaint with the Commissioner against Mr Leroy on the basis of faulty and unsatisfactory window and door supply and installation, or installation of doors and windows that was not proper and proficient in respect of construction of the dwelling at 23B. The complaint was made pursuant to s 5(1) of the BSCRA Act. The complaint comprises 14 complaint items. This became CC 1635/2019 when referred to the Tribunal by the Commissioner pursuant to s 11(1)(d) of the BSCRA Act.
Each complaint was accompanied by email correspondence between Ms Lee and Mr Leroy and relevant photographs and drawings about the complaint items relating to the respective dwelling. It is fair to say that Ms Lee at all times dealt with each dwelling on each property as one project, consequently there is a great deal of overlap in the Commissioner's documents, which were transferred to the Tribunal when the complaints were referred.
Before accepting the complaints, the Commissioner's delegate sought additional information in each proceeding. On 18 July 2019 Ms Lee wrote an email to the Commissioner's senior complaints officer noting:
I have attached the invoices pertaining to our order of windows and doors through Shayne Leroy for our properties and also charged for labour provided by him …. The Invoices are issued from companies owned by Shayne.
… Shayne Leroy was the person who designed our homes for us. He represented to our builder and us that he can import and supply high quality windows and doors.
The email contents immediately raised the issue whether Mr Leroy was the correct respondent to the proceedings or whether it should be the company he represented - Eleven - being the entity that issued invoices for the supply and installation of the windows and doors in issue in CC 1636/2019 (23A) and CC 1635/2019 (23B) or another unidentified person who was referred to by Ms Lee as 'our builder'. Further, Ms Lee supplied copies of invoices that she asserted were relevant to establishing the identity of the respondent, which at that stage was Mr Leroy in each complaint. Ms Lee enclosed an invoice from a Chinese company in Hong Kong referred to as 'Iris Eight Limited' addressed to Eleven noting 'Balance payment due for Windows and Doors' in the sum of HK$35,661.71. Ms Lee supplied another invoice from that same company addressed to herself noting 'Windows and Doors' in the sum of HK$69,173. Ms Lee supplied a further invoice from Eleven to 'P.J. Holmes' noting 'Window Labour for First Floor front house at 43 McLeod Road, Applecross' in the sum of $2,674. The Invoice is not fully addressed and only refers to the 'P.J. Holmes'.
These documents are the same on each of the files referred to the Tribunal and which became CC 1635/2019 and CC 1636/2019, save for the photos and drawings that pertain to the particular dwellings. It is not clear to which dwelling (the one constructed on 23A or 23B) the invoices relate and in particular which dwelling Eleven's invoice to 'P.J. Holmes' relates. The invoice from Eleven incorrectly notes the address as '43' instead of 23 MacLeod Road, but refers to the 'front house' which the Tribunal finds relates to the dwelling which is the subject of CC 1636/2019 constructed on 23A, closest to MacLeod Road, it being at the front of the block from MacLeod Road.
The attached invoices and in particular the invoice from Eleven to 'P.J. Holmes' raised a question about what was the latter's involvement. Ms Lee's emails raise the question of who was the 'builder' or the person who carried out the regulated building service in issue.
By email dated 18 July 2019 the Commissioner's senior complaints officer wrote to Ms Lee in both proceedings informing her that:
A building and energy Inspector will be in touch with you within 10 working days.
The documents provided by the Commissioner to the Tribunal in respect of the referred complaints, which became the subject of CC 1889/2019 and CC 1892/2019, contain an email trail commencing 8 August 2019 (some months before the complaints were made to the Commissioner in respect of what became CC 1889/2019 and CC 1892/2019 in the Tribunal) from the Commissioner's Principal Building Inspector to the City of Melville (City) requesting copies of the applications for building permit, building permit approval, building permit and Notice of Completion in respect of each dwelling constructed at 23A and 23B. The Principal Building Inspector informed the City of Melville that:
The builder is believed to be Peter Holmes and the owner Yu Lian Lee.
The basis of that statement is not known.
On 8 August 2019 the Commissioner's senior complaints officer received a series of documents from the City. One is building permit BA2017874 (23A building permit) which refers to a 'Two Storey Dwelling with Undercroft, Front Section Wall and Associated Retaining Walls' proposed to be constructed on 23A, with an estimated value of $495,000. There is no dispute between the parties that a two-storey residential dwelling with undercroft and front screen wall and associated retaining walls was to be and is constructed on 23A. There is no dispute between any of the parties that the doors and windows supplied and installed in the dwelling constructed on 23A were supplied by Eleven, and comprised part of the work that is the subject of the 23A building permit for 23A. Another document is building permit BA-2017-76 (23B building permit) which refers to a 'Three Storey Dwelling with Undercroft, Swimming Pool with Barrier and associated Retaining Walls to Lockup' proposed to be constructed on 23B with an estimated value of $795,000. There is no dispute between the parties that a three storey (four level) residential dwelling with undercroft and swimming pool with barrier and associated retaining walls was to be and is constructed on 23B. There is no dispute between any of the parties that the doors and windows supplied and installed in the dwelling constructed at 23B were supplied by Eleven and comprised part of the work that is the subject of the 23B building permit.
What is immediately notable from the 23A and 23B building permits is that both were issued in the name of Mr Holmes, as the builder, by the City on 25 January 2017. As is noted in these reasons, the email addresses for the 'builder' on each of the applications for the 23A and 23B building permits refers to email addresses for a Mr Sean O'Reilly and Mr Mario Andreou.
The Commissioner's documents provided to the Tribunal in CC 1635/2019 and CC 1636/2019, each contain the Commissioner's senior complaints officer's memorandum dated 16 August 2019 being a record of a telephone conversation he had with Ms Lee on behalf of all of the applicants wherein he stated:
[Ms Lee] advised that Sean O'Reilley and Mario Andreau were directors of Jetpoint Nominees Pty Ltd … [and] … all payments were made to Sean and Mario. Sean allegedly carried out the supervision of the site works …
The works at the site commenced in September 2016.
[Ms Lee] entered into a HIA Lump Sum Home Building Contract with Peter James Holmes in December 2016.
[Ms Lee] first met Peter Holmes once in June 2019.
[Mr Holmes] has signed a notice of completion for both properties… which has been lodged with the City of Melville.
(Tribunal emphasis)
The Commissioner's senior complaints officer called for copies of the contract 'correspondence and contractual documents with Sean O'Reilly and Mario Andreou', and continued in his memorandum as follows:
I advised that [Ms Lee] would need to serve a new NOPC [notice of proposed complaint] on Peter Holmes, as the registered builder, and that Peter would need to be added as the second respondent to this complaint [being CC 1635/2019 and CC 1636/2019].
The Commissioner's senior complaints officer did not refer to the inconsistency in the time line and in particular that the 23A and 23B building permits dated 25 January 2017 was granted after the time when Ms Lee said the site works on 23A and 23B had begun (September 2016). Nor did the Commissioner's senior complaints officer refer to the fact that Ms Lee said she did not meet Mr Holmes until about two and a half years after executing the contracts.
The bundle of the Commissioner's documents provided to the Tribunal in the referral of the complaints in CC 1635/2019 and CC 1636/2019 to the Tribunal, contains what the Tribunal infers Ms Lee provided to the Commissioner as the contract for construction of each dwelling on 23A and 23B.
The copy of the contract contained in the Commissioner's documents for CC 1635/2019 (that is, the complaint that relates to the dwelling constructed at 23B and in respect of which Ms Lee is the applicant) is not a Lump Sum Building Contract as she had asserted, but rather is a cost plus contract and does not identify the 'works' other than by reference to the following:
Brick and tile 3 storey residence to lockup stage
to be constructed on:
23A MacLeod Road (Tribunal emphasis)
for Ms Lee and her husband. However, it is a fact that the dwelling that was constructed for Ms Lee and her husband was constructed on 23B and is a four level dwelling, including the undercroft.

The copy of the contract contained in the Commissioner's documents for CC 1636/2019 (that is, the complaint that relates to the dwelling constructed at 23A, in respect of which complaint Ms Yong is the applicant) is not a Lump Sum Building Contract as was asserted by Ms Lee, but rather a cost plus contract and does not identify the 'works' other than by reference to the following:
Brick and tile double story residence to lockup stage
to be constructed on:
23 MacLeod Road (Tribunal emphasis),
for Ms Yong's husband (see below) which must be a reference to 23B (given the contract referred to above). However, the dwelling that was to be constructed for Ms Yong's husband was constructed on 23A.
It is to be noted that the 23B building permit is for a three storey dwelling and undercroft (four levels) and not as the contract states a two storey dwelling.
The discrepancies between the 23A and 23B building permits and the 'contracts' provided by Ms Lee are not explained in the Commissioner's documents and were not explained in the evidence during the hearing in the Tribunal.
The Tribunal notes that the 'owner' details in respect of the schedule of particulars of the 'contract' for the construction of a dwelling in CC 1636/2019 is described as Mr K Ling and not Ms Yong. The builder is described as Peter Holmes. Both the owner and the builder appeared to have signed the 'contract' and each of the owner's and builder's signature is witnessed by Mr Sean O'Reilly. Ms Yong is not a registered proprietor of the land at 23A, but the proceedings commenced in her name were permitted to proceed in the Building Commission because she is the wife of Ms K Ling and has a sufficient interest in the dwelling to be able to lodge and prosecute the complaint, according to the Commissioner's delegate. The Tribunal notes that a complaint made pursuant to s 5(1) of the BSCRA Act may be made by 'a person'. Ms Yong is effectively a representative complainant. In any event, Mr K Ling represented himself during the final hearing of the proceedings.
The Tribunal notes that the 'owner' details in respect of the schedule of particulars of the 'contract' for the construction of the dwelling in CC 1635/2019 is described as Mr Leong Ling and Ms Lee. The builder is described as Peter Holmes. Both the owners and the builder appeared to have signed the 'contract' and each of the owners' and builder's signatures are witnessed by Mr Sean O'Reilly. Ms Lee is a registered proprietor of the land and that was accepted by the Commissioner as a sufficient interest in 23B to make the complaint in CC 1635/2019.
Neither 'contract' identifies an estimated price for the dwelling and the progress claim payments provision of the schedule in each 'contract' simply provides for a minimum of 14 days between the issue of claims and demand for payments.
The Commissioner's documents provided to the Tribunal in CC 1635/2019 and CC 1636/2019 contain an email from the Commissioner's senior complaints officer to Ms Lee dated 21 August 2019 in which the Commissioner's delegate stated:
As recently discussed, please serve the notice of proposed complaint on Peter Holmes by email (copying me in).
To allow Peter Holmes to be added as a second respondent, please write 'Peter Holmes, Second Respondent' on the attached form and return the same to me.
Once 14 days have passed from the service of the notice of proposed complaint on Peter Holmes, I will transfer this complaint to the Building Commissioner's delegate for consideration of acceptance.
The Commissioner's senior complaints officer also required Ms Yong to execute a 'Building and Energy Authority to Act' document authorising Ms Lee to represent her in the complaint to the Commissioner against Eleven and/or Mr Holmes concerning the 15 items of complaint identified in CC 1636/2019.
Ms Lee issued a fresh notice of proposed complaint to Mr Holmes and further amended the complaints in CC 1635/2019 and CC 1636/2019 adding Mr Holmes as a respondent. This is how Mr Holmes became the first respondent and how Eleven became the second respondent in each of CC 1635/2019 and CC 1636/2019.
Thus far the facts as outlined do not explain why Mr Holmes was considered by the respective applicants to be a respondent against whom an order of the type identified in s 36(1)(b) of the BSCRA Act can be made, given the information provided by Ms Lee and particularly in light of Ms Lee's statements noted above that:
a)Ms Lee and none of the related applicants (Ms Yong, Mr Leong Ling or Mr K Ling) met Mr Holmes until June 2019;
b)all monies for the construction of the dwellings were paid to Sean O'Reilly and Mario Andreou; and
c)Mr O'Reilly carried out all supervision works.
In response to the respective applicants' notice of proposed complaint to Mr Holmes, on 13 September 2019, Mr Holmes wrote and stated:
I am more than happy to look at any issues that you may have with the mention properties, but as documented in Notice of Completion letter sent, dated 16^th June 2019, all monies need to be paid first, as per contract.
On 23 September 2019, Ms Lee wrote to the Commissioner's two senior complaint officers with whom she was corresponding on behalf of all of the applicants and made the following submissions:
1)The construction 'for both 23A and 23B' were arranged by Mr Sean O'Reilly and 'accompanied' by 'a Mr Mario Andreou'.
2)Both Mr O'Reilly and Mr Andreou are 'owners' and directors of Jetpoint Nominees Pty Ltd trading as Ace Construction.
3)'They' [meaning Mr O'Reilly and Mr Andreou and/or Jetpoint Nominees Pty Ltd] were going to 'build our houses' but did not owing to 'inadequate insurance indemnity or so they claimed'.
4)'Hence, Sean [O'Reilly] arranged to use Peter Holmes' building licence'.
5)Mr O'Reilly and Mr Andreou worked on site.
6)'In return' Mr O'Reilly and Mr Andreou were paid $300,000 in full by the applicants by May 2019.
7)Upon full payment of costs and builder's fee by the applicants, Mr Andreou handed over the keys to the two properties built on 23A and 23B to the applicants.
8)Ms Lee stated 'we have never met Peter Holmes until 11th June 2019'.
9)At least Ms Lee met with Mr Holmes on site on 11 June 2019 at his request following Mr Holmes being contacted about remedial work that was required.
10)Ms Lee said that she informed Mr Holmes on site on 11 June 2019 that they had paid Mr O'Reilly and Mr Andreou all of the money for the construction of both dwellings on 23A and 23 B including the builder's fee of $300,000.
11)Ms Lee said that she informed Mr Holmes that Mr O'Reilly never mentioned the need to pay Mr Holmes during the course of construction of either of the dwellings and Mr O'Reilly was handling 'the agreed Building Fees ie:-paying Mario [Andreou] and himself and whoever else'.
12)Ms Lee said that Mr Holmes had never been on site.
13)Ms Lee asserted that Mr Holmes had never communicated with Ms Lee or any of the applicants prior to the complaint correspondence referred to above and subsequent meeting in June 2019. Mr Holmes had never dealt with any of 'our trades including our architect, Shayne Leroy'.
14)Mr O'Reilly and Mr Andreou had refused to attend to any of the defects in the construction of either home 'as they said they were not the Builder'.
15)Mr Holmes refused to attend to the defects 'claiming we did not pay him'.
16)Mr Holmes refused to sign the Completion Notice 'until we commenced Legal Action against him. He finally did on 16 June 2019'.
The copy of the Notices of Completion in respect of 23A and 23B both bear the date of 16 June 2019 and Mr Holmes' signature. There is no evidence of what legal action was commenced by the applicants, to which Ms Lee refers and the Tribunal notes that legal action must be unrelated to any of the proceedings in issue before it, as the earliest was commenced by a complaint to the Commissioner on 8 July 2019 two weeks after the Notices of Completion were signed by Mr Holmes.
On 3 October 2019 the Commissioner's senior complaints officer emailed Ms Lee in both CC 1635/2019 and CC 1636/2019 and informed her that both applications against both respondents was now in a suitable form and upon receipt of a completed complaint form identifying Mr Holmes as a respondent, he proposed referring the complaints to the Commissioner's delegate 'for consideration of acceptance'. He also noted that Ms Lee was in the process of investigating further complaint items. The complaints in CC 1635/2019 and CC 1636/2019 were subsequently recommended for acceptance and appear to have been accepted formerly by the Commissioner's delegate in early October 2019 pursuant to the BSCRA Act. The documentation of acceptance is not within the Commissioner's documents provided to the Tribunal in either CC 1635/2019 or CC 1636/2019.
By 17 October 2020, the Commissioner's delegate had investigated the complaints and made the decision to refer both complaints in CC 1635/2019 and CC 1636/2019 to the Tribunal pursuant to s 11(1)(d) of the BSCRA Act.
On 5 November 2019, CC 1635/2019 and CC 1636/2019 were listed for a directions hearing in the Tribunal. Both proceedings were adjourned to a further Tribunal directions hearing listed on 10 December 2019. On 6 November 2019 Ms Lee wrote to the Commissioner's senior complaints officer seeking information about a fresh complaint to be lodged in respect of the construction of the dwellings on 23A and 23B. In that email Ms Lee states:
… I was directed by the Judge to file in a complaint to the Building Commission with regards to License Lending by our builder Peter Holmes and the third party builders who were actually the responsible ones in building the houses.
Please advise me what is required of me to lodge this new complaint.
Lastly, for the second set of NoPC [notice of proposed complaint] that is going in do I name both the registered builder (Peter Holmes) and the third party builders who used his registration to build our houses OR just the registered builder ie:- first and second respondents.
(Tribunal emphasis)
This email is within the Commissioner's documents provided to the Tribunal on the referral of the additional complaint made on behalf of Ms Lee against Ms Holmes concerning the faulty or unsatisfactory construction of the dwelling on 23B or the construction that was not proper and proficient in CC 1892/2019. This email does not appear in the file of documents provided to the Tribunal in CC 1889/2019, being a complaint by Ms Yong (as again as representative of Mr K Ling) concerning the construction of the dwelling at 23A.
None of the information provided by the Commissioner to the Tribunal on the referral of the complaints that comprise these proceedings contains a documented response to Ms Lee's request for advice by the Commissioner's senior complaints officer or any other officer.

On Wednesday 20 November 2019 Ms Lee lodged a complaint against Mr Holmes in respect of 29 items of complaint about the construction of the dwelling at 23B. This complaint was ultimately referred to the Tribunal and is the subject of CC 1892/2019.
Similarly, on 20 November 2019, Ms Lee on behalf of Ms Yong lodged a complaint with the Commissioner against Mr Holmes concerning 11 complaint items about the construction of the dwelling constructed at 23A. This complaint was ultimately referred to the Tribunal and is the subject of CC 1889/2019.

The hearing

The hearing on 17 and 18 February 2020

Ms Lee represented herself (and her husband) in CC 1635/2019 and CC 1892/2019 concerning the complaints about the construction of the dwelling at 23B.
Mr K Ling represented himself and Ms Yong in CC 1636/2019 and CC 1889/2019 concerning the complaints about the construction of the dwelling at 23A.
Mr Leroy represented Eleven and Mr Holmes represented himself.
In the course of the two days, the following people gave evidence:
1)Ms Lee gave evidence and made submissions concerning the construction of both dwellings on 23A and 23B.
2)Mr Oostveen, a registered builder, gave evidence concerning complaint items in respect of the construction of both dwellings on 23A and 23B.
3)Mr Tibury for M Constructions gave evidence concerning the cost of the remedial work necessary to remediate the alleged complaint items asserted in respect of the dwellings constructed on both 23A and 23B across all four proceedings.
4)Mr Holmes was called by the respective applicants and gave evidence in each of the four proceedings.
5)Mr Leroy gave evidence.
6)Mr O'Reilly was called by Eleven and gave some evidence for Eleven.
7)Mr K Ling made submissions to the Tribunal.
Part way through the evidence of Mr O'Reilly the Tribunal adjourned, there being insufficient time allocated for the hearing of all four proceedings to complete his evidence in chief. Mr Holmes had indicated that he intended to call a Mr Alexander and possibly Mr Andreou. All four proceedings were adjourned part heard to 21 and 22 April 2020.

The hearing concerning CC 1635/2019 and CC 1636/2019

On 24 February 2020 the applicants sought an adjournment of the hearing listed on 21 and 22 April 2020 in all four proceedings on account of the applicants not being in the country on those dates. The applicants reside in Malaysia for part of their time. The proceedings were listed for directions on 4 March 2020 at which time the Tribunal vacated the hearing dates in April and listed the further hearing of all four proceedings on 21 and 22 May 2020. The Tribunal also listed all four proceedings for mediation on 10 March 2020.
On 10 March 2020 all four proceedings were the subject of mediation in the Tribunal. As a consequence, the following consent orders were made in CC 1635/2019 and CC 1636/2019:

CC 1635/2019

The Tribunal orders by consent of the parties:
1.Pursuant to s 36(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) in respect of following items of complaint in respect of 23B Macleod Road, Applecross:
(a)Item 1 - Al fresco (item 1(i) on consolidated Scott Schedule)
The second respondent is to remedy the defective bifold doors in a proper and proficient manner making good all affected surfaces
(b)Item 2 - Al fresco (item 1(ii) on consolidated Scott Schedule)
The second respondent is to install missing handles and screws to the bifold doors and remedy the defective door handles in a proper and proficient manner making good all affected surfaces.
(c)Item 3 - Alfresco (item 1(iii) on consolidated Scott Schedule)
The second respondent is to remedy the badly fitted rubber strips in a proper and proficient manner making good all affected surfaces.
(d)Item 6 - Al fresco (item 2 on consolidated Scott Schedule)
The second respondent is to remedy the bifold doors which open to the wrong side (to the right instead of the left) in a proper and proficient manner making good all affected surfaces. The remedial work for this item is to be completed by 31 July 2020. Within seven days of receiving a tax invoice from the second respondent setting out the labour cost for completing the remedial work for this item, the first respondent must pay to the second respondent the total amount set out in that tax invoice.
(e)Item 7 - Dining area (item 3 on consolidated Scott Schedule)
The second respondent is to remedy the aluminium strip to match the window frame in a proficient manner making good all affected surfaces.
(f)Item 9 - Bedroom ground floor (item 4 on consolidated Scott Schedule)
The second respondent is to remedy the defective window frame in a proper and proficient manner making good all affected surfaces.
(g)Item 10 - East side French windows (item 5 on consolidated Scott Schedule)
The second respondent is to remedy the defective aluminium and rubber strips around the frame in a proper and proficient manner making good all affected surfaces.
(h)Item 11 - West side French windows (item 6 on consolidated Scott Schedule)
The second respondent is to remedy the defective doors in a proper and proficient manner making good all affected surfaces.
(i)Item 12 - West side French windows (item 6 of consolidated Scott Schedule)
The second respondent is to remedy the defective door lock and latches in a proper and proficient manner making good all affected surfaces.
2.In respect of all the above items of complaint where a timeframe has not been stipulated the second respondent is to complete the remedial work by 15 May 2020.

CC 1636/2019

The Tribunal orders by consent of the parties:
1.Pursuant to s 36(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) in respect of following items of complaint in respect of 23A Macleod Road, Applecross:
(a)Item 1 - Ground floor front corridor (item 1 on the consolidated Scott Schedule)
The second respondent is to frost the full length of the windows. All works to be undertaken in a proper and proficient manner making good all affected surfaces.

(b)Item 2 - Master ensuite (item 2 on the consolidated Scott Schedule)
The second respondent is to frost the windows. All works to be undertaken in a proper and proficient manner making good all affected surfaces.

(c)Item 3 - Powder Room (item 3 on the consolidated Scott Schedule)
The second respondent is to frost the windows. All works to be undertaken in a proper and proficient manner making good all affected surfaces.

(d)Item 4 - Master Bedroom (item 4 on the consolidated Scott Schedule)
The second respondent is to remedy the defective fly screen on the right side window in a proper and proficient manner making good all affected surfaces. In addition the second respondent is to supply the window keys to the right side window.

(e)Item 5 - Living room (item 5 on the consolidated Scott Schedule)
The second respondent is to remedy the defective window on the far left so that it opens properly. In addition the second respondent is to remedy the faulty fly screen. All works to be undertaken in a proper and proficient manner making good all affected surfaces.

(f)Item 6 - First floor landing (item 6 on the consolidated Scott Schedule)
The second respondent is to remedy the defective window on the right so that it opens properly. In addition the second respondent is to remedy the faulty fly screen and supply the window keys. All works to be undertaken in a proper and proficient manner making good all affected surfaces.

(g)Item 7 - Bedroom 4 (item 7 on the consolidated Scott Schedule)
The second respondent is to remedy the defective fly screen in a proper and proficient manner making good all affected surfaces.

(h)Item 8 - Bedroom 3 (item 8 on the consolidated Scott Schedule)
The second respondent is to remedy the defective stained window and faulty fly screen in a proper and proficient manner making good all affected surfaces.

(i)Item 9 - Bedroom 2 (item 9 on the consolidated Scott Schedule)
The second respondent is to remedy the defective fly screen in a proper and proficient manner making good all affected surfaces.

(j)Item 10 - Bedroom 2 ensuite (item 10 on the consolidated Scott Schedule)
The second respondent is to remedy the defective fly screen and loose rubber seals in a proper and proficient manner making good all affected surfaces.

(k)Item 11 - Laundry door (item 11 on the consolidated Scott Schedule)
The second respondent is to remedy the defective rubber seal in a proper and proficient manner making good all affected surfaces.

(l)Item 12 - Al fresco (item 12 on the consolidated Scott Schedule)
The second respondent is to remedy the defective sliding and bifold doors and install missing door handles in a proper and proficient manner making good all affected surfaces.

2.In respect of all the above items of complaint the second respondent is to complete the remedial work by 15 May 2020.

On 21 May 2020 when the adjourned hearing commenced in all four proceedings, Mr Leroy on behalf of Eleven was not in attendance. Mr K Ling (the proprietor of 23A) and Ms Lee (a proprietor of 23B) informed the Tribunal that all complaint items that were pursued by the respective applicants against Eleven in CC 1635/2019 and CC 1636/2019 were resolved by the orders made at mediation on 10 March 2020. Insofar as the claim against Eleven in both proceedings was concerned, no further substantive orders were sought by the respective applicants.
Accordingly, the Tribunal now makes the final orders, as anticipated during hearing on 21 May 2020, and referred to in the introduction to these reasons in so far as the proceedings against Eleven is concerned.
No orders were sought by the respective applicants in CC 1635/2019 and CC 1636/2019 against Mr Holmes as all complaints about doors, door furniture, windows and window furniture and their installation was resolved by the consent orders made on 10 March 2020 at mediation in the respective proceedings.
Accordingly, the Tribunal is satisfied that all disputes in CC 1635/2019 and CC 1636/2019 are resolved and no further orders are sought by the applicants against Mr Holmes in those proceedings. In any event, for the reasons referred to below the Tribunal declines to make any building remedy order against Mr Holmes, and the proceedings in CC 1635/2019 and CC 1636/2019 against Mr Holmes is each dismissed.

The evidence of the dispute in CC 1889/2019 and CC 1892/2019

The evidence Ms Lee for the applicant

After being affirmed, Ms Lee gave the following evidence in summary:
1)Ms Lee and Mr L Ling and Ms Yong and Mr K Ling came to Australia from Malaysia in about 2014 and wished to build two homes on 23A and 23B respectively. All four individuals travel regularly between Australia and Malaysia.
2)They were befriended by Mr Sean O'Reilly, whom they met in the locality of Applecross and with whom they shared certain club sporting interests.
3)It is not clear how by Mr O'Reilly became involved in in the applicants' endeavours to construct dwellings on 23A and 23B, but nonetheless he did.
4)An architect was engaged to draw some plans and planning approval was obtained, aided by Mr O'Reilly to some extent. The Tribunal notes that it is evident from the Certificate of Design Compliance documents in respect of each dwelling that the development approval for the construction of the two dwellings in 23A and 23B was granted some time in 2016.
5)Before mid2016 (ts 22, 17 February 2020), Mr O'Reilly was provided with plans for the two dwellings on 23A and 23B and on behalf of the applicants and he arranged to obtain quotations for the constructions of the two dwellings.
6)Mr O'Reilly obtained a quotation for construction of the two dwellings for the applicants from Beaumonde Homes and another builder arranged by Mr Leroy. The relationship (and whether there was a pre-existing relationship) between Mr O'Reilly and Eleven or Mr Leroy is not known by the Tribunal.
7)The details of those quotations were not the subject of any evidence.
8)Having obtained the two quotes, in mid-2016 (ts 22, 17 February 2020), Mr O'Reilly proposed that the applicants engage what Ms Lee described as Mr O'Reilly's company, Jetpoint Nominees Pty Ltd (Jetpoint), to construct the two dwellings instead of Beaumonde Homes and the other builder.
9)Ms Lee was quite specific in her evidence (ts 10, 17 February 2020):
He [Mr O'Reilly] said his partner Mario Andreo (sic), also from Jetpoint Nominees, would be the supervisor for the project. But Sean [O'Reilly] would be overseeing the whole project, if we appointed Jetpoint to do it.
10)Ms Lee described the 'whole project' as construction of the two dwellings, a basement, a tennis court and landscaping. The tennis court is located on land identified as 23C MacLeod Road Applecross and is not the subject of these proceedings.
11)Ms Lee described Mr Mario Andreou as Mr O'Reilly's 'partner' at Jetpoint and that his role would be to 'supervise'.
12)In answer to the Tribunal's question about what Ms Lee said Mr O'Reilly's role was in respect to what she had described as the 'whole project', Ms Lee stated at ts 21, 17 February 2020:
He was the builder. He and Mario [Andreou] was the actual builders, because Peter James Holmes were never never came to site. We have never met him. We have never seen him, except for that his name was on the contract.
13)Ms Lee gave the following evidence (ts 22, 17 February 2020):
Then Sean [O'Reilly] negotiated a contract together with Mario [Andreou] whereby we were to build with him, him meaning Jetpoint, based on cost of build plus 300,000 in fees.
…
We did not write out a contract, but we have a payment -- progress payment schedule which was prepared by prepared by Mario [Andreou] and Sean [O'Reilly] and given to us. In there was the breakdown of the required progress payments that we had to pay from the beginning of the build right through to practical completion.
14)Ms Lee explained to the Tribunal that the builder's fee of $300,000 was for the 'whole project' including the development of 23C.
15)At ts 23, 17 February 2020, Ms Lee stated:
So Sean [O'Reilly] convinced us that he could do the job quicker, better and cheaper. We trusted him fully as he was a good friend. He told us that the build was not going to be longer than 18 months for the whole development.
…
So we agreed with Sean [O'Reilly] that his company, Jetpoint Nominees, trading as Ace Construction, was to build our development, which consisted of two houses with a basement, a tennis court, and landscaping areas. It was a seamless development, as shown in the drawing plans by Shane Leroy.
…
Things were moving quite quickly from 2016 onwards, and all negotiations and meetings were conducted by Sean and the architect, Sean [O'Reilly] and the engineers, Sean [O'Reilly] for earthworks and Sean [O'Reilly] for piling. At this point, there was never a doubt that Jetpoint Ace was the builder. However, in December 2016, we were told to sign a standard, off-the-shelf build contract with a Mr Peter James Holmes whom we had never met in our lives.
16)Ms Lee explained further at ts 23 to 25, 17 February 2020, that Mr O'Reilly then presented the applicants with a standard Housing Industry Association (HIA) 'cost plus contract' to sign with the name of the builder as 'P J Holmes'. She explained that although the contract is dated 1 December 2016 it was signed later in December 2016 and backdated to 1 December 2016.
17)Ms Lee gave evidence that the requirement for a written contract with a builder arose from the need to establish that the applicants intended to reside in Australia to establish their taxation status. Ms Lee believed that the applicants were required to prove that intention by producing a copy of a written contract to construct the dwellings to the Australian Taxation Office (ts 24, 17 February 2020).
18)This evidence does not explain why the name of the builder on those contracts is Mr Holmes. Ms Lee stated that Mr O'Reilly organised for the contracts to be drafted and produced and then stated at ts 25, 17 February 2020:
Yes. So we were meant to sign with - of course, we are meant to sign with the actual company, right. But then the name on the contract was a Mr Peter James Holmes. So I asked Sean [O'Reilly], 'Who are we signing with? You know, why are we signing with this guy?' you know. So he said that he was a business associate and his friend, and the reason we are signing with him was because his company, Jetpoint Ace, did not have enough insurance indemnity or indemnity insurance.
…
Yes. So he assured us that he [O'Reilly] will be in charge of the project, and he was still going to do it. We, at that point, thought that this sort of arrangement was quite normal in Australia.
…
We didn't know. We didn't know that at that point, we didn't even know that you have you need a building licence to build. We didn't even know that, you know.
19)Although Ms Lee gave evidence that at that stage the applicants' understanding of the contract was, at best, 'not good' (ts 26, 17 February 2020). Ms Lee did not answer the Tribunal's question concerning whether she or the other applicants actually read the terms of the two contracts. She merely replied that their understanding was 'not good'.
20)In summary, Ms Lee gave further evidence on behalf of all of the applicants across all four proceedings that she did not meet Mr Holmes until June 2019; Mario Andreou was to build and supervise the construction of both dwellings, the tennis court and associated retaining walls and the swimming pool; the applicants agreed to and did pay Mr Andreou and Mr O'Reilly $300,000 for the supervision and construction as the builder's fee on top of the actual cost of the materials, labour and other service construction costs; neither she nor any of the applicants contemplated Mr Holmes being involved at all in the construction of the two dwellings let alone the 'whole project' and did not calculate the sum of $300,000 as the builder's fee equivalent to the 5% of costs called for in the 'contracts' with Mr Homes. In her evidence, Mr Holmes and the 'contracts' with him were unrelated to the construction of the two dwellings that have been completed.
21)In terms of payment, Ms Lee said at ts 27, 17 February 2020:
Mario [Andreou]? He was the supervisor and the builder. He has a building licence. So during the course of the construction, from 2016 to 2019 June 2019, all quotes, payments and operation were handled by Sean [O'Reilly] and Mario [Andreou], fully and exclusively.
…
When the quotes were given of course, the quotes were given to us, me and Ms Yong, yes, at that point. And we look at it. We say 'Okay' or 'Not okay'. 'Proceed'. 'Work done'. And all the quotes were what do you call that all the quotes were given out to Ace Construction, not Peter Holmes. It was addressed - addressed to Ace Construction. Yes. And when they presented it and the work was done, we paid for it. There was an account that was set up, and that account is an account my husband is a holder. Mario [Andreou] is a holder of the account. And Peter [Holmes] was also a holder of that account. It was a tri-account, we call it. So whenever we will put in money into the account for payments with regards to the project work. And that account was set up by Sean [O'Reilly].
…
Mr Ling puts in the money, basically deposits the money into the account. And Mario [Andreou] would pay for all payments. The person who handles the account is Mario's wife.
…
It's only one signature, and that is Mario [Andreou].
(The Tribunal shall refer to that bank account as the 'joint account' for the purposes of these reasons).
22)Ms Lee stated categorically that at no time did the applicants pay directly or authorise a payment to Mr Holmes and she had not seen an invoice by Mr Holmes prior to sometime in May and then June 2019 after the keys to the dwellings were handed to her and the applicants by Mr Andreou. At ts 35, 17 February 2020 Ms Lee stated in respect of dealings with Mr Holmes prior to June 2019:
Never met him [Mr Holmes]. Never paid him. He has never claimed any money throughout the two year three years, sorry. Yes.
23)Ms Lee explained that the joint account was only for the payment of materials and trade labour and services. The funds paid for the 'builder's fee' was paid directly to Mr O'Reilly or Mr Andreou as a general rule (ts 21, 17 February 2020). Ms Lee identified the instalments of the $300,000 (ts 31-32, 17 February 2020).
24).Ms Lee stated that Mr Andreou handed her the keys to both dwellings on 20 May 2019 and gave her an invoice for $20,000 from Mr Holmes for 'builder's supervising fee'. Her evidence on this point is as follows:
I asked Mario [Andreou]. At that point, I asked Mario, 'What is all this about?' You know, I said, 'I am not aware that I had to pay any more. I know that I have to pay 300,000, which I did'. And I said, 'I do not understand'. I was not very happy, of course, and he [Mr Andreou] basically couldn't explain himself. And he just shrugged his shoulders and said he doesn't know.
25)During the course of her evidence, Ms Lee provided the Tribunal with three invoices from Mr Holmes and a photograph of a page in a book. The invoices are dated 12 March 2020 (in the sums of $22,000 including GST and $1,083.30 including GST) and 16 June 2020 (in the sum of $36,450 including GST) the photograph of the page in a book is a note of some payments made by the applicants but none is to Mr Holmes.
26)Ms Lee stated that she raised the defects with Mr Andreou and ultimately was contacted by Mr Holmes whom she met with her husband on site on 11 June 2020. She explained the above to Mr Holmes and he said he would return to her.
27)She did not hear further from Mr Holmes until he sent the further invoice in the sum of $36,450, noting the 'Builders Supervising Fee' including GST. This is in addition to the invoice for the sum of $22,000 he issued and gave to Mr Andreou who passed it on to Ms Lee in May 2019. The two invoices total $58,450 including GST. The Tribunal notes that at a rate of 5% as identified in the contracts, that fee would suggest the cost of construction before the builder's fee was $1,169,000. That is a figure that has no foundation in the evidence at all, as being the cost of the construction prior to a builder's fee.
28)As to the 23A and 23B building permits granted on 27 January 2017, Ms Lee said that Mr Andreou's company, Epic Holdings Pty Ltd, paid for the applications for the 23A and 23B building permits and the applicants reimbursed that cost by paying money to the joint account. She stated that both building permit applications were completed by Mr O'Reilly and Mr Andreou (having recognised their handwriting). Ms Lee acknowledged that Mr Holmes signed the applications but that the contact details for the 'builder' included Mr Andreou's email address and Mr O'Reilly's address at the Jetpoint email server address.

The Tribunal notes that none of the parties or witnesses adduced any further evidence about the establishment of the joint account or how it was that Mr Holmes was an apparent account holder but held no authority to draw upon it. Ms Lee again stated in her evidence it was all arranged by Mr O'Reilly (as did Mr Homes). No details were provided to the Tribunal about this account and no copies of the account or invoices issued by trades and suppliers to Jetpoint or invoices by Jetpoint for payment of the builder's fee of the construction costs was provided. By the same token no invoices by Mr Holmes (apart from those referred to above) were provided to the Tribunal and no invoices issued to Mr Holmes by trades or for supply of materials were provided to the Tribunal, save one. Mr Leroy issued an invoice to Mr Holmes on express instructions from Mr O'Reilly (ts 184, 18 February 2020).
The applicants' position following Ms Lee's evidence was (and always was) that Mr Holmes was not the builder of the dwellings and because of that fact, the applicants would not allow Mr Holmes to undertake any remedial work to the same. Curiously, the applicants however asserted repeatedly that they claimed that Mr Homes is the person who should be ordered to pay the costs of the remedial work. The respective applicants maintained that position, not withstanding that the Tribunal alerted the applicants during the course of the hearing (and at the directions hearing on 10 March 2020), that the Tribunal is empowered to order only the person who carried out the regulated building service to pay the cost of any remedial work to rectify faulty and unsatisfactory or non-proper and proficient regulated building services.
In closing, it was put to the Tribunal that Mr Holmes was an undisclosed agent for himself, Mr O'Reilly, Mr Andreau and/or Jetpoint and the applicants had elected to commence proceedings against Mr Holmes. For the reasons identified that assertion is not accepted on the evidence. The Tribunal finds that Mr Holmes was not an agent of anyone and more importantly he did not carry out any of the the regulated building service that is the subject of the proceedings. The detail of Ms Lee's oral evidence is included because the information is totally inconsistent with the applicants' position that Mr Holmes is the person who carried out the regulated building services complained of, for the purpose of the Tribunal's exercise of its power to make an order pursuant to s 36(1)(b) and s 38(1)of the BSCRA Act.
Further that evidence tends to persuade the Tribunal that:
a)The contracts to construct the two dwellings on 23A and 23B were both shams that is, neither party to the contracts ever intended to be bound by the terms of the contracts and indeed neither party ever performed the contracts in their terms or at all.
b)The applications for the 23A and 23B building permits were knowingly false as to the material contents - who the proposed builder was - and are both shams. There was no intention by the applicants for Mr Holmes to have any part in the construction of the dwellings at 23A and 23B.
c)The applications for the 23A and 23B building permits where in fact a ruse or device to persuade the City to grant a building permit to a third party unrelated to the proposed construction to legitimise the actions of another builder to construct the dwellings.
d)The applicants were aware that the applications for the building permits did not contain true and accurate information and were made in the name of Mr Holmes so as to ensure his insurer would issue a home indemnity certificate as required by the HBC Act and s 16(j) of the Building Act 2011 (WA) for the issue of the 23A and 23B building permits.
When asked why the applicants agreed to execute contracts and building permit applications as owners that they knew were inconsistent with the agreements reached with Mr O'Reilly, Mr Andreou, Jetpoint and totally inconsistent with their intentions concerning Mr Holmes, Ms Lee's response was that the applicants assumed that 'this this how we thought things were done in Australia'. The Tribunal does not accept that statement as true. Ms Lee was asked if she held a profession and she denied that (ts 27, 17 February 2020). In fact under crossexamination Ms Lee admitted she held a Bachelor of Laws degree but because she was not working at the time of giving evidence and was a 'housewife' she denied she was a member of the Malaysian Bar (ts 112, 18 February 2020). The Tribunal finds that none of the applicants in all likelihood read the contracts for the construction of the two dwellings, but only because they considered them to not be binding in any way. The Tribunal is not able to find, and need not find, what the purpose of the contracts truly was but it is sufficient for the Tribunal to find that in law there was no contract between the parties identified in the HIA cost plus contracts for the construction of dwellings at 23A and 23B, because of a total lack of contractual intention by both parties to agree to perform the terms and promises identified and provided for in those contracts. In fact so little regard was had to those documents that the scant details of the dwellings to be constructed is obviously incorrect and inconsistent with the 23A and 23B building permits and what was constructed on each parcel of land. Further, the progress payments of the builder's fee were not complied with; the completion date for construction was not complied with (approximately one year and seven months or so or 19.5 months from the issue of the 23A and 23B building permits, as opposed to two and a half years or 30 months from the issue of the 23A and 23B building permits) all tend to establish that the terms and promises of the contracts for the construction of the two dwellings were never intended to be complied with. Most significantly of all is that the applicants did not receive any invoices from Mr Holmes for anything during the construction of the dwellings and did not pay him anything.

The evidence of Mr Leroy

Mr Leroy gave evidence in CC 1635/2019 and CC 1636/2019.
Much of Mr Leroy's evidence was confusing and it was clear that his invoices are not accurate in any respect. In summary, he took his instructions from Mr O'Reilly. Until 5 November 2019, when he attended the first directions hearing in the Tribunal in respect of CC 1635/2019 and CC 1636/2019, he had not met with or had any dealings with Mr Holmes. The invoice he issued to Mr Holmes for labour costs, was issued to Mr Holmes only because that is what Mr O'Reilly told him to do. He also gave evidence that he could be flexible about the amounts to be included in the invoices. He was in contact with Ms Lee as well about the windows, doors and the payment for the same. Although Ms Lee referred to Mr Leroy as an architect, Mr Leroy is not a registered Architect pursuant to the Architects Act (2004) (WA). The Tribunal finds that Mr Homes did not engage Eleven or have anything to do with Eleven.

The evidence of Mr Holmes

Mr Holmes' position was, curiously, that he is the person who carried out the regulated building service complained of and that he would attend to all of the defects by performing the remedial work, provided that he was paid the sum he invoiced the applicants ($58,450 including GST). For the reasons explained below the Tribunal concludes that there is no factual foundation for the assertion that Mr Holmes carried out the regulated building service complained of and that there was no basis for him rendering the two invoices totalling $58,450 including GST.
The evidence of Mr Holmes, considered in totality, confirms Ms Lee's evidence concerning the contract, the execution of the applications for the 23A and 23B building permits and the construction of the dwellings. Mr Holmes was called by the applicants to give evidence across all four proceedings. Although he asserted some knowledge of the construction, the Tribunal found his evidence in that respect vague and unreliable and rejects his evidence. Mr Holmes' evidence in summary is as follows:
1)Prior to June 2019, he had no direct engagement with any of the applicants and only dealt with Mr O'Reilly, whom he described initially as a friend but also as a business associate. He became involved in applying for the 23A and 23B building permits because Mr O'Reilly promised him some work on another development in the future.
2)He did not meet the engineers engaged in the construction of the dwellings and did not know the name of the engineers who constructed the piling structure for the undercroft, but knew someone was checking them. He did not layout the site for the concrete grano workers and did not check anything. He was unable to identify the number of piles constructed for the undercroft except to say there were over 100, which is extraordinary given the size and complexity involved in the construction and the substantial cost involved in excavations and construction of the piles.
3)Mr Holmes claimed the dwellings were at lock up notwithstanding the fact that a number of external doors and some windows did not lock and some had no striker plates or latches. He ultimately admitted he did not know if the dwellings were at lock up stage on any given date.
4)Mr Holmes eschewed contractual responsibility for the supply and installation of doors and windows on the basis that they were imported from China, but could not identify any variation to the 'contracts' where by the supply and installation of the same were to be removed from the scope of works. Eleven has consented to orders concerning the doors and windows in the construction of both dwellings and for the reasons already stated, does not accept that the 'contracts' were ever performed or intended by the respective parties to be performed. The Tribunal does not accept Mr Holmes' evidence that he declined to supply and install the doors and windows. The Tribunal finds he was not involved in the construction of the dwellings to any extent.
5)He afforded no explanation as to how it came to be that Eleven was engaged to supply and install the doors and windows, although he maintained that he had site meetings with Mr O'Reilly and Mr Leroy. It is common cause that Mr Holmes and Mr Leroy met for the first time ever on 5 November 2019 in the Tribunal directions hearing for CC 1635/2019 and CC 1636/2019. This is inconsistent with Mr Holmes' assertion in evidence that he had site meetings with Mr Leroy, although Mr Holmes contradicted himself and also indicated that he had not been at these site meetings. Mr Holmes' evidence was very confused on these basic issues.
6)He had no knowledge of the supply and labour costs in total for either dwelling and had not issued any invoices at all during the construction of the dwellings as one would expect a builder to do under a HIA cost plus contract. It does not appear Mr Holmes issued the invoice for $1,083.30 to the applicants on 12 March 2020 as is suggested by that document. Its provenance is entirely unknown as it is was not a document given to Ms Lee by Mr Andreau on May 2019. Further as to the invoices for what he asserted is his 'Builder's Supervision Fee' under the two contracts, he had not issued any invoices; had no idea what was the cost of the construction of each dwelling. Although Mr Holmes asserted that he was entitled to 'about' 5%' as a margin on the total costs which he estimated was $1,200,000. It was evident from his evidence he was not across any form of detail of the construction or cost thereof. The Tribunal finds that his lack of knowledge was caused by the fact that he had no part to play in the construction of the two dwellings as the builder or even as a tradesperson (ts 223, 18 February 2020). Mr Holmes' Builder's Supervision Fee, as stated above does not equate to 5% of 1,200,000 cost of construction.
7)Mr Holmes stated he did not ever receive any invoice addressed to himself in respect of the construction costs for either dwelling (ts 239, 18 February 2020) and he did not engage or direct any of the trades (ts 241, 18 February 2020). He stated that he had thought he might do so and intended to do some work under the contracts but didn't. It was put to Mr Holmes that the contracts purport to reflect his intention and promise to perform all the construction work by the engagement, payment, direction and supervision of relevant trades and the acquisition, payment, installation and supervision of installation of all materials in order to construct the two dwellings. Mr Holmes repeatedly asserted that he did intend to do some of the work but did not get a chance to do so. The Tribunal finds that Mr Holmes had no intention of performing the promises comprised in the terms of the contract and in any event did not ever perform any construction work on the dwellings.
8)When pressed he retreated to assertions that he was 'supervising' but could not say what or whom he was supervising, particularly as he asserted that both Mr O'Reilly and Mr Andreou were also 'supervising' something that was equally unspecific.
Mr Holmes was not a credible witness.

Mr O'Reilly

Mr O'Reilly was called by Mr Leroy to give evidence. He did not complete his evidence in chief and was not cross-examined. It is difficult for the Tribunal to draw any conclusions from Mr O'Reilly's evidence in these circumstances. The highest he put his involvement with the construction of the two dwellings was as a friend to the applicants. However, he seemed across more detail that one would expect of a mere helpful friend. Mr O'Reilly's evidence did not persuade the Tribunal that Mr Holmes was the person who carried out the regulated building service complained of.

The Tribunal's conclusions on the evidence

The Tribunal accepts the factual evidence of Ms Lee that consequently is not persuaded on the balance of probabilities that Mr Homes is a person who carried out any part of the regulated building services involved in the construction of the dwellings on 23A and 23B. Mr Holmes' evidence was unreliable on this issue and the Tribunal does not accept his mere assertions to the contrary. The motivation for his assertion is unclear but the Tribunal is not concerned with his motivations for advancing himself as the responsible party. What is clear from Mr Holmes is that he is prepared to undertake the relevant remedial work if he is paid $58,450 including GST. His position is as if he were a mere witness to the cost of the remedial work.
The Tribunal finds that neither the applicants nor Mr Holmes intended to be bound by the terms of the two HIA cost plus contracts for the construction of the dwellings, which were drawn up and prepared at Mr O'Reilly's instigation. Those contracts were intended to evidence the applicants' intention to reside at the dwellings, post construction.
The Tribunal finds that the applicants did not pay Mr Holmes any money to construct the dwellings, despite his name allegedly appearing on a bank account into which the labour, material and service costs were paid by the applicants and were drawn, but only by Mr Andreou.
The Tribunal finds that the applicant did not pay to Mr Holmes (and he did not receive) any builder's fee pursuant to the two HIA cost plus contracts or any other contracts or at all concerning the construction of the two dwellings. As he did not actually perform any services for the applicants he was not entitled to payment by them of any amount, on the evidence before the Tribunal.
The Tribunal finds that the applicants paid a 'builder's fee' of a total of $300,000 to some other entity which could have been Mr O'Reilly and/or Mr Andreou personally and/or Jetpoint. The Tribunal does not need to and should not make a finding of who it was that carried out the regulated building service in constructing the dwellings at 23A and 23B in the absence of a properly constituted complaint against an entity (other than Mr Holmes) made to the Commissioner and referred to the Tribunal.
The Tribunal finds that the applicants did not receive and Mr Holmes, did not send to the applicants, any invoices from trades or for the supply of materials (with or without a builder's margin) pursuant to the two HIA cost plus contracts, any contracts or at all.
It is common cause that Mr Holmes did not meet or have any direct or indirect negotiations or discussions with the applicants during the construction of the dwellings. The Tribunal finds that the applicants did not know Mr Holmes and did not meet him until June 2019.
The Tribunal finds that Mr Holmes' only contribution to the construction work for the two dwellings was to suggest an engineer and construction firm to perform excavation and the undercroft piling, which suggestion was not accepted by Mr O'Reilly, Mr Andreou or the applicants.
The Tribunal finds specifically that Mr Holmes played no part in supervising the construction of the two dwellings or the 'whole project' or indeed any part thereof. The Tribunal finds that he did not engage a trade or order the supply of materials for the construction of the dwellings and did not even obtain quotes therefor. The Tribunal does not accept Mr Holmes' evidence that he supervised the construction of the undercroft pilings or any other aspect of the construction of the two dwellings.
The Tribunal is satisfied and finds that the applications for building permits for 23A and 23B contained false details about the applicant and were known by all concerned (including the applicants and Mr Holmes) to be false. On the balance of the evidence and on the basis of the facts found the Tribunal concludes that it was never the intention of the applicant or Mr Holmes that the latter carry out the construction of the two dwellings in accordance with the permits or at all.

Consideration

The Tribunal is satisfied that the two contracts to construct the dwellings are both shams and cannot be relied upon by the Tribunal to conclude that Mr Holmes is the person who carried out the regulated building service in these proceedings.
The Tribunal is satisfied that the applications for the 23A and 23B building permits are also shams and the building permits that were granted were obtained on false information. The applications for the 23A and 23B building permits were not intended to reflect the true position, which is that Mr Holmes was not intended to and did not construct the dwellings. Therefore, the Tribunal cannot rely upon the building permits for 23A and 23B to conclude that Mr Holmes is the person who carried out the regulated building service in these proceedings.
Given the findings made by the Tribunal on the evidence, the Tribunal is not satisfied that Mr Holmes carried out any regulated building service complained of in respect of the construction of the dwellings. Therefore there is no basis upon which the Tribunal can make an order that Mr Holmes pay any money to the applicants by way of the cost of remedying the building service complained of in any of the four proceedings pursuant to s 36(1)(b) and s 38(1) of the BSCRA Act.

Orders

CC 1635/2019
1.Insofar as the applicant, Yu Lian Lee claims against the second respondent, Eleven (Aus) Pty Ltd, for an order pursuant to s 36(1)(a) of the Building Services(Complaint Resolution and Administration) Act 2011 (WA) the orders made on 10 March 2020 comprise the final orders in this proceeding in respect of the remediation of the building services complained of and identified in that order (complaint items 1, 2, 3, 6, 7, 9, 10, 11 and 12 inclusive).
2.Otherwise the Tribunal declines to make a building remedy order as sought against the second respondent, Eleven (Aus) Pty Ltd in respect of the remaining complaint items (complaint items 4, 5, 8, 13 and 14).

3.Further to order 2 above the proceeding against the second respondent, Eleven (Aus) Pty Ltd is otherwise dismissed.
4.The Tribunal declines to make a building remedy order against the first respondent, Mr Peter James Holmes as sought or at all.
5.The proceeding against the first respondent, Peter James Holmes is dismissed.

CC 1636/2019
1.Insofar as the applicant, Su Lin Yong claims against the second respondent, Eleven (Aus) Pty Ltd for an order pursuant to s 36(1)(a) of the Building Services(Complaint Resolution and Administration) Act 2011 (WA), the Tribunal orders made on 10 March 2020 comprise the final orders in this proceeding in respect of the remediation of the building services complained of and identified in that order (complaint items 1 to 12 inclusive).
2.Otherwise the Tribunal declines to make a building remedy order as sought against the second respondent, Eleven (Aus) Pty Ltd in respect of the remaining complaint items (complaint items 13, 14 and 15).
3.Further to order 2 above the proceeding against the second respondent, Eleven (Aus) Pty Ltd is otherwise dismissed.
4.The Tribunal declines to make a building remedy order against the first respondent, Mr Peter James Holmes as sought or at all.
5.Further to order 4 above, the proceeding against the first respondent, Mr Peter James Holmes is otherwise dismissed.

CC 1889/2019
1.The Tribunal declines to make a building remedy order against the respondent, Mr Peter James Holmes as sought or at all.
2.Further to order 1 above, the proceeding against the respondent Mr Peter James Holmes is otherwise dismissed.

CC 1892/2019
1.The Tribunal declines to make a building remedy order against the respondent Mr Peter James Holmes as sought or at all.
2.Further to order 1 above, the proceeding against the first respondent Mr Peter James Holmes is otherwise dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS N OWEN-CONWAY, MEMBER
7 SEPTEMBER 2020