Lee and Jetpoint Nominees Pty Ltd [No 2] - [2020] WASAT 79

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   LEE and JETPOINT NOMINEES PTY LTD [No 2] [2020] WASAT 79
MEMBER:   MS D QUINLAN, MEMBER
MR RJ KERSHAW, SESSIONAL MEMBER

HEARD:   6, 13 AND 14 MAY AND 30 JUNE 2020
DELIVERED          :   23 JULY 2020
FILE NO/S:   CC 1893 of 2019
BETWEEN:   YU LIAN LEE
Applicant
AND
JETPOINT NOMINEES PTY LTD
Respondent

Catchwords:

Regulated building service - Whether faulty and unsatisfactory - Exercise of discretion as to type of building remedy order - Monetary building remedy order - Works building remedy order - Costs - Turns on own facts

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 11, s 38, s 38(1)(a), s 49, s 51
State Administrative Tribunal Act 2004 (WA), s 9, s 32

Result:

Application successful

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	Mr S O'Reilly and Mr M Andreou (directors)

Solicitors:

Applicant	:	N/A
Respondent	:	N/A

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

Gemmill Homes Pty Ltd and Sanders [2018] WASC 179
Lee and Jetpoint [2020] WASAT 62

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

These proceedings arise in the Tribunal pursuant to a referral to the Tribunal by the Building Commissioner on 5 December 2019 under s 11 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (the Act).
The applicant, Ms Yu Lian Lee (the applicant or Ms Lee), is an owner along with her husband Mr H Ling of both 23B and 23C MacLeod Street, Applecross. The brother of Mr H Ling, Mr Hee Keat Ling, is the owner of 23A MacLeod Street. The respondent in these proceedings is Jetpoint Nominees Pty Ltd trading as ACE Construction (the respondent or Jetpoint).
Following three days of hearing on 6, 13 and 14 May 2020, the Tribunal determined a preliminary issue on 10 June 2020 that the respondent carried out a regulated building service at 23 McLeod Street and, in particular, carried out the regulated building service the subject of the nine items of complaint in these proceedings: see Lee and Jetpoint [2020] WASAT 62 (the preliminary decision). The hearing days for the preliminary issue as well as the preliminary decision which followed form part of the final hearing and this final determination of the proceedings. The preliminary decision should be read with this decision to both constitute the final determination by the Tribunal of these proceedings.
For ease of reference in these reasons, as in the preliminary decision, the Tribunal will refer to the nine items of complaint described as being on 23C MacLeod Street, even though it is commonly understood there is some lot boundary overlap of complaint items onto 23A and 23B. We find that lot boundary overlap to be immaterial to the resolution of the complaint items. We find the descriptor of '23C' provides sufficient identification for determining the complaint items in relation to the exterior regulated building service undertaken at 23 MacLeod Street by Jetpoint.
Section 38 of the Act provides relevantly, where the Tribunal is satisfied that the regulated building service that is the subject of the building service complaint has not been carried out in a proper and proficient manner or is faulty and unsatisfactory, the Tribunal is to deal with the complaint by making a building remedy order (BRO).
Following the preliminary decision, all that remains to be determined in these proceedings is whether the nine items of complaint have not been carried out in a proper and proficient manner or are faulty and unsatisfactory and, if so, the Tribunal is to make a BRO. As to the type of BRO, the Tribunal has a discretion to exercise.

Progression of these proceedings in the Tribunal

The respondent has made a number of protestations citing issues relating to procedural fairness and natural justice regarding the process undertaken to achieve a final determination at first instance in the Tribunal. It is worth noting in these reasons the progression of this matter through the Tribunal which can be detailed as follows:
a)On 10 December 2019 the matter was programmed through to a final hearing listed for 9 March 2020. The programming orders allowed for the applicant's case (evidence and Scott Schedule) to be completed by 28 January 2020 and the respondent's case (evidence and Scott Schedule) by 28 February 2020.
b)On 5 March 2020 the hearing set for 9 March 2020 was vacated and relisted to 6 May 2020 as the respondent had not completed its case in the time allowed. The respondent was granted further time to complete its case until 27 March 2020.
c)On 23 March 2020 the respondent was again granted further time to complete its case until 10 April 2020.
d)On 21 April 2020 during the course of a directions hearing, and following a request from the respondent, it was determined that the final hearing listed for 6 May 2020 would be converted into a hearing only of the preliminary issue.
e)On 6 May 2020, during the hearing of the preliminary issue it became apparent that further hearing days were required and the preliminary issue was adjourned to additional hearing days on 13 and 14 May 2020.
f)On 10 June 2020, the Tribunal published the preliminary decision and listed the matter for a final hearing day on 22 June 2020 (subject to the availability of the parties and experts on that date). As ordered by the Tribunal on 10 June 2020, the respondent advised on 17 June 2020 that Mr Andreou and the expert witness Mr Stuart Blackie were unavailable on 22 June 2020. As indicated it would, the Tribunal then vacated the final hearing day on 22 June 2020 and listed the matter for a directions hearing in order to list the matter for the final hearing day at the end of June or early July 2020.
g)At the directions hearing on 22 June 2020, the respondent informed the Tribunal that its expert building witness, Mr Blackie had only been instructed to provide an expert opinion on four of the nine items of complaint. With some hesitation, the Tribunal determined that the respondent should be given a further opportunity to provide expert evidence on the other items of complaint. However, the Tribunal considered that leave would only be granted on an urgent basis as it would be unfair to the applicant to delay the matter any further due to an earlier strategic decision taken by the respondent as to how it presented its case. The respondent was granted leave to file a supplementary report from Mr Blackie by Friday 26 June 2020 which addresses the items of complaint not addressed in his original report dated 19 March 2020.
h)At the directions hearing on 22 June 2020, the Tribunal was informed by Mr O'Reilly on behalf of the respondent that Mr Blackie was extensively unavailable for the coming weeks and he needed two weeks advance notice of any hearing. The Tribunal was unable to get clarification from Mr O'Reilly as to the nature of Mr Blackie's unavailability. The Tribunal decided to telephone Mr Blackie during the course of the directions hearing to properly ascertain his availability in the context of an expert who is engaged by a party to provide evidence for Tribunal proceedings. The Tribunal explained to Mr Blackie what 'unavailability' meant in Tribunal proceedings and that busyness and competing priorities were not valid reasons. Mr Blackie conceded in that sense he was available on 30 June 2020. The matter was then listed for a fourth final hearing day commencing at 10.00 am on 30 June 2020.
The Tribunal is satisfied that the main objectives of the Tribunal under s 9 as well as the practice and procedure of the Tribunal set out in s 32 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) have been followed.

The applicant's case

The applicant's case was based on the expert evidence of building inspector, Mr Elias Oosteven from Home Integrity (pages 193-246 of the Hearing Book (HB)) and the quote evidence of builder, Mr Anthony Tilbury from M/Construction (page 277 of the HB). Both witnesses presented on 30 June 2020 for oral evidence and crossexamination as well as to answer any queries from the Tribunal on their evidence.
The applicant submitted that if the Tribunal found any or all of the nine items had not been carried out by the respondent in a proper and proficient manner or were faulty and unsatisfactory, the appropriate BRO for the Tribunal to make in the facts and circumstances was a monetary BRO. Ms Lee submitted that she tried and could not resolve matters with the respondent before lodging the complaint. Ms Lee stated that a works BRO would mean she would have to continue to deal with the respondent and she could not go through with this process again if the works BRO was not properly followed. Ms Lee also submitted that she and her husband just wanted this to be over with so they could get on with their lives.

The respondent's case

The respondent's case was based on the expert evidence of building inspector, Mr Blackie from Building Consultancy & Inspections (pages 658-666 of the HB and Exhibit 10) and the quote evidence of Mr Charles Dawson of Cortez Construction (pages 668-669 of the HB). The respondent presented Mr Dawson on 30 June 2020 for oral evidence and crossexamination as well as to answer any queries from the Tribunal on his evidence. Whilst the respondent did provide a supplementary report on an urgent basis from Mr Blackie as permitted by the Tribunal, the respondent did not present Mr Blackie at the hearing for oral evidence or to be crossexamined on his evidence or to answer any queries from the Tribunal.
The respondent submitted that the Tribunal should make no order in favour of Ms Lee based on an estoppel type submission that the owners of 23 MacLeod Street had received an approximate $2 million benefit from the 'arrangement' and that the respondent was the true victim of the situation.
In the alternative, the respondent submitted that if the Tribunal found any or all of the nine items had not been carried out by the respondent in a proper and proficient manner or were faulty and unsatisfactory, the appropriate BRO for the Tribunal to make in the facts and circumstances was a works BRO. The respondent also submitted that part of that BRO should be that the parties enter into a written contract.

Consideration

Having considered all of the evidence presented to the Tribunal in these proceedings by both parties, the Tribunal makes the following findings of fact and law.
The respondent submitted that the waterproofing and tiling system (including drainage) completed by the initial sub-contractor, Mr Garry Dunk of Riverglow Pty Ltd (found in the preliminary decision to have been 'carried out' pursuant to the Act by the respondent) had been adversely interfered with by the applicant subsequently engaging another subcontractor to carry out remedial work. This is a significant and relevant submission. However, the respondent provided no expert or factual evidence to support this submission. Therefore, the Tribunal is unable to make findings or determine the issue raised by the respondent's submission.
Mr Oosteven attended the hearing in person to give his evidence concurrently with Mr Blackie and to be cross-examined on his opinion evidence. However, Mr Blackie did not attend the final hearing. The Tribunal was unable to seek any clarification from Mr Blackie regarding his two reports and the applicant was denied the opportunity to crossexamine Mr Blackie. Whilst this may affect the weight that the Tribunal attributes to the opinion evidence of Mr Blackie, it does not mean that the Tribunal simply accepts the opinion evidence of Mr Oosteven.
Neither party raised any issues as to the expertise and qualification of Mr Oosteven or Mr Blackie. The Tribunal is satisfied that both Mr Oosteven and Mr Blackie have the appropriate qualifications and experience to express an expert opinion on the nine items of complaint at issue in these proceedings.
Mr Oosteven provided the Tribunal with an extensive report detailing the nine items of complaint where Mr Oosteven has formed the view the items constitute faulty and unsatisfactory workmanship. Mr Oosteven also attended the hearing to provide any clarification regarding, and be crossexamined on, his report.
Mr Blackie's two reports were much shorter in comparison to Mr Oosteven. There is little reasoning in Mr Blackie's report and, whilst there are some photographs, there is little to no supporting information or supporting documents.
Despite these differences, there is much common ground in the expert reports of Mr Oosteven and Mr Blackie. Detailed further in what follows, to the extent that the expert evidence of Mr Oosteven and Mr Blackie disagree, the Tribunal finds that it prefers the opinion of Mr Oosteven. This is because Mr Oosteven's report was more detailed in its reasoning than Mr Blackie's two reports. Further, we found the oral evidence of Mr Oosteven to be persuasive. Both of these factors indicate to the Tribunal that a more thorough process was undertaken in the preparation of Mr Oosteven's expert opinion.
The findings of the Tribunal in relation to whether each of the nine items of complaint have not been carried out by the respondent in a proper and proficient manner or were faulty and unsatisfactory are detailed below. The Tribunal notes that each of the experts use both the terms 'tiles' and 'pavers'. The Tribunal will use the term utilised by the particular expert witness.

Complaint item 1

Complaint item 1 relates to the tiled exterior area to the entry path and raised area located in the southeastern corner of 23C. Mr Oosteven observed that there was bond failure, grout cracking and unsightly use of silicone. Mr Oosteven stated he was surprised to see the tiles had been laid on compacted yellow sand when the pavers had been grouted, as his view is that grouted pavers should be laid on a suitable substrate. Mr Oosteven was of the view that the tiling was faulty and unsatisfactory and should be re-installed and laid in a proper and proficient manner in accordance with Australian Standard AS 37271993 Guide to Residential Pavements (AS 3727).
Mr Blackie was in agreement with Mr Oosteven. Mr Blackie stated that the paving is 'drummy' in places with sealant used to repair grout, with some pavers without grout and loose. Mr Blackie also stated that the falls are not satisfactory to vent the water causing ponding to occur and no drainage is visible. Mr Blackie agreed with Mr Oosteven regarding the unacceptable use of grout when pavers do not have a substrate and are laid over sand. In addition to AS 3727, Mr Blackie also cited the requirement of the Australian Standard AS 3958-1-2007 Guide to Ceramic Tiles (AS 3958)

Complaint item 2

Complaint item 2 relates to the tiled raised podium area located in the southeastern corner of 23C. Mr Oosteven observed that water is ponding due to the required falls of 10 millimetres/1000 millimetres not being present. Mr Oosteven was of the view that the tiling was faulty and unsatisfactory and should be re-installed in a proper and proficient manner in accordance with AS 3727.
Mr Blackie agreed and again also cited AS 3958. Mr Blackie noted similar concerns to complaint item 1. Mr Blackie was of the view that specific drainage may not be required in this location as this area is not above the basement carpark and water can vent into the garden.

Complaint item 3

Complaint item 3 relates to the seal to the tennis post failing and causing pooling of water and ingress into the basement carpark below. Mr Oosteven took a moisture level reading from the concrete slab in the basement carpark immediately next to the base plate of the tennis post and found that there was a very high moisture reading of 99.9%. Mr Oosteven formed the opinion that the surface water was not being adequately disposed of in the area of where the tennis post was installed and assessed the installation as faulty and unsatisfactory. Mr Oosteven stated that the tennis court post should be re-installed in a proper and proficient manner in order to satisfy the performance requirements regarding surface water in P2.2.1 of the National Construction Code 2015 Volume 2 (P2.2.1 of the NCC Vol 2).
Mr Blackie's original report did not address complaint item 3. In Mr Blackie's supplementary report, he stated that the concrete was damp, and that water is entering from the upper level and seeping into the concrete as the waterproofing is inadequate.

Complaint item 4

Complaint item 4 relates to the exterior timber benches located on the north side of 23C. Mr Oosteven observed that the timber benches are leaching pigment causing staining to nearby tiles. Mr Oosteven was informed by Ms Lee that she had cleaned the stains but after periods of rain they would reappear. Mr Oosteven also observed that the end grain of the timber benches was not adequately sealed. Mr Oosteven was of the view that leaching occurs when timber releases its natural oils and resins when exposed to moisture. Mr Oosteven explained that when the ends of the timber are cut and moisture enters through the grains tannins and extractants are then released which can cause brown, black or rusty looking bleed marks on nearby surfaces. Mr Oosteven formed the opinion that the unsealed end grains and leaching of the timber benches were faulty and unsatisfactory. Mr Oosteven stated that the timber benches should be remedied in a way that satisfies Australian Standard AS 2311-2009 Guide to the Painting of Buildings (AS 2311).
Mr Blackie stated that he was aware that some leaching had occurred during rain events but very little staining was present at the time of his inspection in March 2020. Mr Blackie is of the view that the timber seating is relatively newly installed and it would be better to monitor and allow stain to weather for at least six months when it was his view that the leaching would dissipate.
The Tribunal finds that it prefers the more extensively detailed opinion of Mr Oosteven rather than Mr Blackie in relation to complaint item 4. The Tribunal finds that the entire timber benching (not just the end grain) should be resealed in order to prevent leaching in accordance with AS 2311.

Complaint item 5

Complaint item 5 relates to the tiled exterior area located on the north side of 23C. Mr Oosteven stated that this area constituted faulty and unsatisfactory workmanship as water was ponding, the falls were inadequate and that leaching, known as 'efflorescence' in AS 3958, was occurring due to stormwater entering the tiling system due to inadequate drainage. Mr Oosteven was of the view that the tiling needed to be reinstalled in a proper and proficient manner in order to satisfy the performance requirements regarding surface water in P2.2.1 of the NCC Vol 2, Australian Standard 3500-2015 Plumbing and Drainage Part 3 Stormwater (AS 3500), Australian Standard 4564.22012 Waterproofing membranes for external above-ground (AS 4564) and AS 3958.
Mr Blackie's original report did not address complaint item 5. In Mr Blackie's supplementary report, he stated that the paving on the suspended slab had inadequate falls and the substrate from waterproofing was inadequate.

Complaint item 6

Complaint item 6 relates to water ingress in the north-western corner of the basement carpark through the suspended concrete slab. Mr Oosteven observed water pooling in the northern section of the basement carpark and upon investigation confirmed that this was as a result of surface water leaking through the suspended concrete slab from the tiled area above ground. Mr Oosteven stated that this area constituted faulty and unsatisfactory workmanship due to the same reasons as complaint item 5 above also stating that the floor tiles in this section are not fixed properly and the adhesive is breaking down due to continuous water immersion. Mr Oosteven recommends the same remedy as that for complaint item 5.

Mr Blackie's original report did not address complaint item 6. In Mr Blackie's supplementary report, he stated that the waterproofing had not been re-proofed, that water is ponding at the lip formed at the edge of the paving during storm weather and this is likely to cause efflorescence over time. Mr Blackie also stated that this is not a structural issue provided the waterproofing is adequate.

Complaint item 7

Complaint item 7 relates to vertical cracking to the masonry brick wall acting as a balustrade located on the eastern side of 23C. Mr Oosteven reviewed all the building permits for 23 MacLeod Street and discovered that no approval for the wall/balustrade had been provided. Mr Oosteven formed the view that with no structural engineering drawings or building permit to construct this wall/balustrade and with the wall cracking at the external corner he assesses this as faulty and unsatisfactory workmanship. Mr Oosteven recommends that the necessary approvals should be obtained and the wall should be installed in a proper and proficient manner in accordance with NCC Vol 2.
Mr Blackie is of the view that the vertical cracking is considered cosmetic 'at the moment' and easily repaired, though he did then note that all cracking should be monitored.
The Tribunal finds that it prefers the more extensively detailed opinion of Mr Oosteven in relation to complaint item 7. For the reasons which follow in relation to the BRO, the Tribunal does not need to determine the terms of a BRO which includes the extent to which a structural engineer should be consulted and any amendment to a building permit is required to be undertaken.

Complaint item 8

Complaint item 8 relates to the tiled exterior area located on the southern corner of 23C. Mr Oosteven was informed by the applicant that she had cleaned off the white discharge on several occasions however within a short period of time, such as five to seven days, the white discharge would reappear. The applicant also informed Mr Oosteven that the white discharge has been progressively getting worse over time. Mr Oosteven formed the view that the stormwater entering the tiling system due to an inadequate drainage system, inadequate falls in places and the waterproof membrane breaking down all causing leaching constituted faulty and unsatisfactory workmanship. Mr Oosteven recommends the same remedy as that for complaint items 5 and 6.
Mr Blackie's original report did not address complaint item 8. In Mr Blackie's supplementary report, he stated that the waterproofing failed and, whilst the non-paved area was re-proofed, the paved area was not. He recommended that the paved area be re-waterproofed and the lip against the paved edge be removed as it is stopping drainage to the outlet.

Complaint item 9

Complaint item 9 relates to the broken and damaged bull-nosing edge to the tiled step in front of the residence of 23B. The applicant informed Mr Oosteven that the bull-nosing edge had simply fallen off on its own accord. Mr Oosteven recommended that the damaged bullnosed edge needed to be replaced in a proper and proficient manner in accordance with AS 3958 and AS 4564.
Mr Blackie's original report did not address complaint item 9. In Mr Blackie's supplementary report, he stated that the bullnose piece of the step had fallen out and the bullnose paver needed to be replaced.
There is much common ground between Mr Oosteven and Mr Blackie and where there is not common ground the Tribunal finds that it prefers the more detailed opinion of Mr Oosteven. Therefore, it follows that the Tribunal finds it is satisfied that the regulated building service in relation to all nine items of complaint constitutes a building service being carried out in a manner that was faulty and unsatisfactory.

Building remedy order

When it was explained to Jetpoint that the Tribunal did not possess equitable jurisdiction to grant an estoppel, the submission was clarified to, if the Tribunal was to exercise a discretion, that any such discretion should be exercised to make no order at all, or at the very least, made in the respondent's favour. Pursuant to s 38(1)(a) of the Act, if the Tribunal finds that the item of complaint has not been carried out in a proper or proficient manner or is faulty and unsatisfactory, the Tribunal is to deal with the complaint by making a BRO. We find that there is no discretion in s 38(1)(a) of the Act, where the Tribunal is relevantly satisfied, to not make a BRO as submitted by Jetpoint.
A BRO can take different forms. The builder can be ordered to rectify the faulty work or the applicant can be awarded the cost of rectification and then organise the work themselves or compensation can be paid for the faulty work, or even a combination of these orders.
The Tribunal must exercise its discretion to determine the appropriate BRO rather than be directed in any way by the parties, however of course the preference of the parties are relevant considerations: see Gemmill Homes Pty Ltd and Sanders [2018] WASC 179 at [131]-[135].
Ms Lee submitted the Tribunal should make a monetary BRO. The Tribunal notes that Mr Oosteven's recommendation in relation to complaint item 7 (vertical crack in wall) regarding the need for a design by, or opinion from, a structural engineer and the correction or amendment to the relevant building permit relates only to a works BRO as the quote evidence for complaint item 7 only relates to minor repairs to the wall. The Tribunal concludes that the applicant was therefore conceding that aspect of a works BRO which addressed the structural engineer and/or building permit aspects of Mr Oosteven's recommendation for rectification for complaint item 7.
Jetpoint submitted, in the alternative to the submission above, that a works BRO should be made by the Tribunal.
Due to the findings in the preliminary decision and in particular the way that Jetpoint's directors conducted Jetpoint's case during the final hearing day of these proceedings having received the Tribunal's preliminary decision, the Tribunal is concerned that the directors of the respondent are still failing to understand the respondent's obligations under the Act. The Tribunal is not confident that Jetpoint, through its directors, understands its obligations as a registered building service provider to abide by the Act and to abide by the terms of a works BRO. An example of this lack of understanding is Jetpoint's misconceived submission requesting the Tribunal to order the parties to enter into a written contract regarding a works BRO. A works BRO is something that Jetpoint would be ordered to comply with under the Act, with consequences to follow under the Act if not complied with such as conversion proceedings under s 51 of the Act. Another example, is the submission from Jetpoint during the final hearing day on 30 June 2020 that it is not responsible or liable for the nine items of complaint and that the responsibility is with some of the subcontractors. These submissions do not provide the Tribunal with confidence that Jetpoint would properly manage its obligations as a registered building service provider to arrange and oversee completion of a works BRO.
Further, the breakdown of not only a commercial relationship between Jetpoint and Ms Lee but also a personal friendship between Mr O'Reilly and Ms Lee resulting in Mr O'Reilly being banned from 23 MacLeod Street in February 2019 is an important relevant factor against making a works BRO. However, having found that, a positive factor for making a works BRO is the good commercial relationship maintained between Mr Andreou and Ms Lee through to May 2019.
In the exercise of the Tribunal's discretion as to which form of BRO we should make, we conclude it is appropriate that there needs to be a decisive progression toward finality of the dispute between Ms Lee and Jetpoint, such that a monetary BRO is appropriate in the facts and circumstances of these proceedings.

Quantum of monetary BRO

Both parties each provided one quote for the costs of rectification of the complaint items.
Ms Lee provided a quote from registered building service provider, Mr Anthony Tilbury from M/Construction (Tilbury quote) (page 277 of the HB). The Tilbury quote details amounts for each of the nine items of complaint and totals $83,490 (including GST). Mr Tilbury corrected an error in his quote during his oral evidence in that the quote amounts for complaint items 2 and 8 should be switched. Thus the correct quote amount for complaint item 2 is $4,025 and for complaint item 8 is $27,600.
The respondent provided a quote from Mr Shane Dawson, sole director of Cortez Construction (Cortez quote) (pages 668-669 of the HB). The Cortez quote totals $50,435 (including GST). Mr Dawson is a stonemason by trade. Neither Mr Dawson nor Cortez Construction is a registered building service provider.
The Tribunal found the Cortez quote somewhat confusing as none of the items are numbered in accordance with the nine items of complaint. It appears that the Cortez quote does include complaint item 1 (southeastern corner), complaint item 2 (podium), complaint item 5 (north side), and complaint item 9 (bullnose). However, perhaps not unsurprisingly as Mr Dawson is a stonemason, the Cortez quote does not allow anything for the complaint items relating to the tennis post, timber benches and brick wall (complaint items 3, 4 and 7 respectively). It remains unclear to the Tribunal to what extent complaint items 6 and 8 are included in the Cortez quote which allows $20,800 for the northwestern area of 80m².
Both parties provided their quote witnesses for oral evidence to be crossexamined on their quotes and for the Tribunal to seek clarification where necessary. The Tribunal found both Mr Tilbury and Mr Dawson to be honest and forthright witnesses. The Tribunal also found the Tilbury quote and the Cortez quote both to be genuine quotes. The Tribunal accepts the evidence of both Mr Tilbury and Mr Dawson. The question for the Tribunal is which quote, or component of a quote, the Tribunal should rely upon in reaching the final amount for a monetary BRO for the nine items of complaint.
We have exercised our discretion and find that a works BRO is not appropriate in the circumstances of these proceedings. However, we do find it is appropriate in circumstances where Jetpoint has not been permitted by the Tribunal under the Act to rectify by a works BRO that Jetpoint should be given the benefit of the lower quote amounts for each complaint item where the opposing quotes are otherwise equal. The Tribunal also finds it should exercise its discretion in this fashion due to the adverse findings in the preliminary decision we made against Ms Lee.
Having found that we wish to exercise our discretion in Jetpoint's favour where possible as found above, we further find that we largely cannot undertake that exercise. The quotes are not otherwise equal in relation to the nine items of complaint. The quotes can be differentiated in that the Tilbury quote is clear on its face in that it details and quotes for the nine items of complaint whereas the Cortez quote is not as clear as noted above. As such the Tribunal sought further clarification and detail in Mr Dawson's oral evidence. However, whilst Mr Dawson had helpfully reviewed his quote in preparation for his oral (telephone) evidence, he did not have any documents with him. Therefore, we find the lack of clarity remains in the Cortez quote due to insufficient correlation to all the nine items of complaint.
The Tribunal also finds the Tilbury quote and Cortez quote are not always comparable or otherwise equal in their approach (see complaint items 6 and 8). Moreover, in some instances the Tilbury quote (obtained by Ms Lee) is actually lower than the Cortez quote (see complaint items 1, 2 and 5) and in those instances we prefer the Tilbury quote as it is more favourable for Jetpoint. For complaint item 9, the two quotes are almost identical.
The Tribunal finds there are a number of reasons for the differences in total amount between the Tilbury quote of $83,490 and the Cortez quote of $50,435. Firstly, is the absence of a quote amount for complaint items 3, 4 and 7. Secondly, is the confusion regarding whether the Cortez quote fully includes complaint items 6 and 8. Lastly, the evidence revealed another reason for the difference between the two quotes in that the total square metres the Cortez quote includes for tiling is 170m² whereas the oral evidence of Mr Tilbury revealed that the Tilbury quote included tiling of 208m².
The Tribunal also notes the large discrepancy between the two quotes is that Mr Tilbury allowed for 115m² in total for items 6 and 8 in the northwestern corner of the property (totalling $36,800 at $320 per m²). Whereas Mr Dawson allowed only 80m² for the northwestern corner of the property (totalling $20,800 at $260 per m²). We find if Mr Dawson had quoted for 115m² for both complaint items 6 and 8 his amount would be $29,900. Therefore, there still remains a monetary discrepancy of $6,900 between the two quotes for complaint items 6 and 8. We find this difference is unexplained. Mr Tilbury was not asked any questions when crossexamined by Jetpoint about the different rate per square metre between him and Mr Dawson on complaint items 6 and 8.
In the absence of Jetpoint providing the Tribunal with a quote to consider for complaint items 3, 4 and 7, the Tribunal considers it appropriate to accept the Tilbury quote for those complaint items.
The Tribunal finds that the Tilbury quote is a cohesive and clearly understood quote provided by a registered building service provider. The Cortez quote is not provided by a registered building service provider. We find in the circumstances of these proceedings, as outlined above in determining what type of BRO to make and in the preliminary decision, that Ms Lee should obtain the benefit of a monetary BRO based on a quote provided by a registered building service provider.
Therefore, we find that we ultimately prefer and rely upon the whole of the Tilbury quote of $83,490 (inclusive of GST) in reaching a final amount for a monetary BRO.

Costs

Pursuant to s 49 of the Act, the Tribunal may award costs of the proceedings. At the conclusion of the hearing on 30 June 2020 when the Tribunal reserved its final decision, the Tribunal also made an order allowing either party to make a costs application with submissions and evidence in support by Friday, 3 July 2020. This order was made so that any application for costs may be determined as part of these reasons.
Ms Lee made an application for costs by email at 3.48 pm on 3 July 2020 with supporting evidence in the form of invoices for the costs of the expert evidence of Mr Oosteven and the filing fee to the Building Commission. The amount sought in total by Ms Lee across five invoices issued by Mr Oosteven is $4,861.00 (including GST).
At 5.06 pm on 3 July 2020 the respondent emailed the Tribunal. Whilst the email contained what appeared to be typographical errors, the Tribunal understood the email to say Jetpoint had only just received the application for costs from the applicant and could only reasonably respond by Monday, 6 July 2020.
On Monday, 6 July 2020 the Tribunal issued an order noting that the applicant had made an application for costs and the respondent had not made an application. The Tribunal also made a further order allowing the respondent until 13 July 2020 to provide any submissions in response to the applicant's application for costs.
Later on 6 July 2020, the respondent emailed the Tribunal attaching the respondent's costs with two invoices from Mr Blackie ($453.087 and $509.05) and one invoice for the quantity surveyor's report ($2,200) referred to by the Tribunal in the preliminary decision.
Jetpoint elected not provide any submissions in response to Ms Lee's application for costs.
We find in the exercise of our discretion to award costs that Jetpoint should not be granted an order to recover any of its costs of the proceedings. Jetpoint is ultimately unsuccessful in these proceedings. Further, after making allowances for Jetpoint not being legally represented, the approach by Jetpoint in conducting the proceedings has unduly lengthened the hearing time required. Whilst the Tribunal referred to, and in some respects relied upon the quantity surveyor's report in the preliminary decision, we are not prepared to exercise our discretion in the circumstances to award any costs for that report to Jetpoint.
The Tribunal accepts Ms Lee's evidence, and so finds, that Ms Lee genuinely attempted to negotiate with Jetpoint to return and rectify the complaint items. Ms Lee had to bring these proceedings in the Building Commission and the Tribunal as the respondent's directors denied that Jetpoint had carried out the regulated building service. We find that Ms Lee, due to the position taken by Jetpoint, had no choice but to incur the cost of lodging the complaint and pursuing the matter in the Building Commission and the Tribunal.
The Tribunal considers it fair and reasonable in the circumstances of these proceedings, and in light of the fact that the Tribunal has relied heavily on the evidence of Mr Oosteven in reaching its decision, that time charged for his report and attendance at hearing should be allowed. We note that Mr Oosteven's invoices are significantly higher than Mr Blackie's. However, Mr Blackie did not attend the hearing for concurrent evidence and crossexamination. Mr Blackie's two reports are also brief and not as detailed as the report by Mr Oosteven.
Therefore we find that the amounts sought across the five invoices from Mr Oosteven commencing with an initial inspection and report through to finalisation of these proceedings including giving oral evidence to be entirely fair and reasonable.

Orders

Accordingly, the Tribunal orders as follows:
1.Within 14 days of this order, pursuant to s 38(1)(a) and s 36(1)(b) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (the Act), the respondent is to pay to the applicant the costs of remedying the nine complaint items in the total amount of $83,490 (inclusive of GST).
2.Within 14 days of this order, pursuant to s 49 of the Act, the respondent is also to pay the applicant's costs of the proceedings in the amount of $4,861 (inclusive of GST)

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS D QUINLAN, MEMBER
23 JULY 2020