Lewis and Waco Pty Ltd - [2016] WASAT 127

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

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

CITATION: LEWIS and WACO PTY LTD [2016] WASAT 127

MEMBER: MR C RAYMOND (SENIOR MEMBER)
MR J FISHER (SENIOR SESSIONAL MEMBER)

HEARD: 26 AND 27 JULY 2016

DELIVERED : 26 OCTOBER 2016

FILE NO/S: CC 1563 of 2015

BETWEEN: JEFFREY LEWIS
Applicant
AND
WACO PTY LTD
Respondent

Catchwords:

Building Services (Complaint Resolution and Administration) Act 2011 (WA) Complaint by subsequent purchaser Some complaints based on noncompliance by registered building service provider's contractual obligations with previous owner Exercise of discretion where no manifested defect Whether other complaints relate to building work which is faulty or unsatisfactory or not carried out in a proper and proficient manner

Legislation:

Builders' Registration Act 1939 (WA), s 12A
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5, s 5(1), s 11(1)(d), s 38, s 38(1)
Building Services (Complaint Resolution and Administration) Regulations 2011 (WA), reg 5

Result:

Complaints upheld in part and dismissed in part

Summary of Tribunal's decision:

The applicant, as a subsequent purchaser of the property concerned, lodged two separate complaints with the Building Commissioner which were transferred to the Tribunal pursuant to s 11(1)(d) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA). The complaints were duly consolidated.
The Tribunal gave consideration to the exercise of discretion in granting a remedy to a subsequent purchaser of a property relying on alleged breaches of contractual obligations of a registered building service provider.
After consideration of each complaint item the Tribunal dismissed a number of complaint items but found that a building remedy order should issue in respect of a number of complaints where work was found to be faulty or unsatisfactory.
All complaints relying on allegations that the respondent had failed to carry out building works in a proper and proficient manner were dismissed where no defect had become manifest, because it was found that it was unlikely that any defect would become manifest, and there was a considerable time before a time bar would operate to prevent a complaint then being made.

Category: B

Representation:

Counsel:

Applicant: In Person
Respondent: Mr W Hedges (Acting as Agent)

Solicitors:

Applicant: N/A
Respondent: N/A

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

Waldron and Afra Construction Pty Ltd [2013] WASAT 207
Willshee v Westcourt Ltd [2009] WASCA 87

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Mr Jeffrey Lewis (applicant) lodged two complaints with the Building Commissioner pursuant to s 5(1) of the Building Services (Complaint Resolution and Administration) Act 2004 (WA) (BSCRA Act) relating to a regulated building service provided by Waco Pty Ltd (Waco) in the construction of a dwelling (Unit 1), being one of a group of six dwelling units all constructed by Waco at 293 Hay Street, West Kalgoorlie. Both complaints have been duly referred to the Tribunal pursuant to s 11(1)(d) of the BSCRA Act and were thereafter consolidated by order of the Tribunal on 14 March 2016.
The building works were constructed pursuant to a Lump Sum Building Contact in the standard HIA Form entered into between Waco and the then owner of the land. That owner sold Unit 1 to Mr Lewis who was provided with the plans prior to making the offer to purchase (Vol 1 of the Hearing Book (HB) at page 271). The construction of Unit 1 was completed on 21 May 2014 (BA 7 Notice of Completion of that date HB Vol 1 at page 241). The purchase settled in approximately early February 2015.
Mr Lewis' complaints raise various items of complaint relating to the building works which are alleged to reflect faulty or unsatisfactory work or work which has not been carried out in a proper or proficient manner by reason of non-compliance with the contractual plans and incorporated specifications as approved by the local authority and referred to in the building permit. Each complaint item, still pursued as at the date of the hearing, is addressed below.
A considerable amount of documentation has been filed in the proceedings, some of which is incorporated in HB Vol 1 and Vol 2 comprising some 766 pages. In addition, many exhibits comprising a voluminous number of pages were tendered in evidence. The documentation reflects that Mr Lewis has punctiliously examined Waco's obligations as a registered building services contractor and over time has raised many issues with the building works and that the relationship between him and Mr William Hedges, a director of Waco, has become increasingly acrimonious. During the hearing, the Tribunal prevented the parties from examining on matters relating to the relationship between them as this was not relevant to the narrow statutory based issues before the Tribunal, being simply whether or not the building work, which it is common cause constitutes a regulated building service, is faulty, unsatisfactory or carried out in a manner which was not proper or proficient. However, whatever may be the cause of the poor relationship between the parties, as appears from our reasons below in relation to complaint items 10, 12 and 15, the relationship has impacted on the Tribunal's assessment of the evidence.

The issues

Mr Lewis' statement of issues, facts and contentions sets out 14 complaint items and comprises some 45 pages of close type particularising the complaints. Notwithstanding that the Tribunal's consolidation order required Mr Lewis to include in the statement of issues facts and contentions the complaint items raised in both complaints to the Building Commissioner, none of the matters the subject of the second complaint were included. Waco, in its responsive statement of issues, facts and contentions, fortunately dealt with all complaint items. Waco in effect denies that the work is faulty, unsatisfactory or carried out in breach of any obligation allegedly imposed under the contractual drawings, specifications or applicable standards and asserts that each complaint is frivolous and vexatious.
The form of the parties' statements of issues facts and contentions do not lend themselves to any effective summary. While the substance of each complaint is addressed below, in essence the following issues will be determinative of the matter.
1)In respect of each regulated building service which is the subject of complaint, has it been carried out in a proper and proficient manner or is it faulty or unsatisfactory?
2)Under the applicable statutory regime, is it open to the Tribunal and should the Tribunal exercise its discretion under s 38 of the BSCRA Act to grant a building remedy order in favour of a complainant who has no contractual relationship with the regulated building service provider in respect of non-compliance with a contractual obligation, if the work in question is not demonstrated to be faulty or unsatisfactory and there is no evidence to suggest that a defect or fault is likely to become manifest in the reasonably foreseeable future?
It is convenient to address the second issue above before turning to each item of complaint still pursued by Mr Lewis. In that regard, it is recorded that complaint item 1 alleging that the roof battens installed did not conform with the building permit and applicable Australian Standard and item 9 alleging failure to conform with the building permit, were both withdrawn prior to the hearing.

The statutory regime and the Tribunal's discretion

Section 5 of the BSCRA Act provides:
Making complaint about building service or home building work contract matter
(1)Subject to the regulations, a person may make a complaint to the Building Commissioner about a regulated building service not being carried out in a proper and proficient manner or being faulty or unsatisfactory.
…
(5)The regulations may make provision as to
(a)who can make a building service complaint; and
(b)any preliminary action required before making a complaint under this section.
…
Section 38 of the BSCRA Act provides:
How State Administrative Tribunal may deal with building service complaint
(1) If the Building Commissioner refers a building service complaint to the State Administrative Tribunal, the Tribunal may
(a)if the Tribunal is satisfied that the regulated building service that is the subject of the building service complaint has not been carried out in a proper and proficient manner or is faulty or unsatisfactory, deal with the building service complaint by making a building remedy order; or
(b)otherwise, decline to make a building remedy order.
…
Regulations 5 of the Building Services (Complaint Resolution and Administration) Regulations 2011 (WA) (Regulations) provides that a building services complaint may be made by a person whose interests are being, or have been, adversely affected by the carrying out of the regulated building service.
Under the now repealed Builders' Registration Act 1939 (WA) (BR Act), the former Building Disputes Tribunal had power to grant remedies for faulty or unsatisfactory building work or for work not carried out in a proper and workmanlike manner in the following terms:
12A. Order to remedy unsatisfactory building work
(1)Where on complaint being made to it by any person, including the Board, the Disputes Tribunal is satisfied that any building work has not been carried out in a proper and workmanlike manner by reason that the building work is faulty or unsatisfactory the Disputes Tribunal may by order in writing served on the person who carried out the building work order him to
(a)remedy the faulty or unsatisfactory building work within such reasonable time as is specified in the order; or
(b)pay to the owner of the building such costs of remedying the building work that is faulty or unsatisfactory as the Disputes Tribunal considers reasonable in which case any costs so ordered by the Disputes Tribunal constitute a debt to the owner and are recoverable by him in a court of competent jurisdiction.
(1a)Where, on complaint being made to it by a person for whom building work has been carried out, the Disputes Tribunal is satisfied that in some respect (other than its being faulty or unsatisfactory) the building work has not been carried out in a proper and workmanlike manner the Disputes Tribunal may, having regard to the extent of the failure to carry out the building work in a proper and workmanlike manner in relation to the whole of the building work, by order in writing served on the person who carried out the building work order him to
(a)remedy the building work that has not been carried out in a proper and workmanlike manner within such reasonable time as is specified in the order; or
(b)pay to the person for whom the building work was carried out
(i)such costs of remedying the building work that has not been carried out in a proper and workmanlike manner as the Disputes Tribunal considers is reasonable; or
(ii)such sum of money as the Disputes Tribunal considers reasonable to compensate him for the failure to carry out the building work in a proper and workmanlike manner,
and any costs or sum of money so ordered to be paid constitutes a debt due to the person to whom it is so ordered to be paid and is recoverable by him in a court of competent jurisdiction.
The BR Act provided a remedy for work not carried out in a proper and workmanlike manner, but which was not faulty or unsatisfactory, only in favour of the person for whom the building work had been carried out so that a direct nexus had to exist between that person and the builder. No such restriction existed in relation to building work which was faulty or unsatisfactory so that a remedy could be granted in favour of any person which could include a subsequent purchaser of the building.
The Regulations, read with the BSCRA Act, permit a complaint to be made and a remedy to be granted to any person whose interests are being, or have been, adversely affected by the carrying out of the regulated building service for faulty or unsatisfactory work and for work which has not been carried out in proper or proficient manner, as opposed to work not carried out in a proper and workmanlike manner under the former regime. There is no longer a need for a nexus with the builder as was required under the BR Act for a claim that building work, which is not faulty or unsatisfactory, has not been carried out in a proper and workmanlike manner.
In Waldron and Afra Construction Pty Ltd [2013] WASAT 207 (Waldron), the Tribunal, as then constituted, examined the alteration of the standard from 'proper and workmanlike' to 'proper and proficient' and concluded that a claim could be made under s 5 of the BSCRA Act that work had not been carried out in a proper and proficient manner by reason of a failure to comply with contractual drawings and specifications. Further, the term proper and proficient was held to require an advanced level of skill and knowledge to be provided.
This Tribunal considers that Waldron was correctly decided, as the conclusion accords entirely with the ordinary grammatical meaning of the BSCRA Act. If a registered building service provider does not follow drawings and specifications which it is contractually bound to do, it cannot be said that the building service was carried out in a proper and proficient manner.
This does not open the flood gates for any subsequent purchaser who might be in possession of the original contract drawings and specifications to assert that he or she is entitled to insist on compliance with them. A subsequent purchaser must demonstrate that his or her interests are being, or have been, adversely affected. Usually a subsequent purchaser will have difficulty showing this other than in respect of a complaint that the building work is faulty or unsatisfactory. Further, s 38 of the BSCRA Act gives the Tribunal a discretion whether or not to grant a remedy so it is not the case that any failure to carry out the building service in a proper and proficient manner must result in the grant of a building remedy order.
Where there is a contractual relationship with the builder, the principles outlined in Willshee v Westcourt Ltd [2009] WASCA 87 will guide and may influence the grant of any remedy which is a statutory not common law contractual remedy. But where there is no contractual relationship or other nexus with the builder, the Tribunal will be generally disinclined to grant a remedy when no faulty or unsatisfactory work is yet manifest, or likely to become manifest, particularly when there is a substantial time before any claim based on manifested faulty or unsatisfactory work will become time-barred. In all matters, the particular circumstances of the case will affect the exercise of the discretion.
In this case, Mr Lewis was provided with the contractual drawings, including engineering drawings, and incorporated specifications and purchased the property in reliance thereon. This had nothing to do with Waco but it is a sufficient basis on which to find, as the Tribunal does, that Mr Lewis' interests would be adversely affected by any of the contractual works being carried out in a manner which is not proper or proficient by reason of any material noncompliance with the said drawings or specifications.
The Tribunal will apply its conclusions above in addressing each of the extant complaint items set out below.

Complaint 2 storm water drainage

The complaint is that the storm water drainage system is not draining, that water builds up in the piping, and was not constructed to the original council approved plan as part of the issued Building Permit No 22807 dated 5 September 2104. Further, it was not constructed to the specifications and standards approved within the Building Permit and is therefore faulty or unsatisfactory.
The evidence from both parties referred separately to both above ground drainage and underground drainage, and the Tribunal has considered them separately. The Tribunal turns first to above ground drainage.
In respect of above ground drainage, Mr Lewis complains that there are insufficient rainwater pipes on the building to comply with the requirements of AS/NZS 3500.3:2003. As a consequence, the drainage overflows in conditions of high rainfall.
Mr Lewis was of the view that the gutters and rain water pipes (RWPs) on the house were unsatisfactory because in a severe storm event on 5 December 2015 Mr Lewis considered they had not been able to cope with the water and had caused backing up of the water in the RWPs and overflow of the gutters. The Tribunal was shown video evidence (Exhibit 5) of a RWP discharging into the underground system said to be during the rain event. Water appeared to be welling up out of the joint between the RWP and the underground drain at ground level. It then flowed across the floor slab outside the entrance door to the kitchen area. The video did not show the gutters. Mr Lewis testified that the gutter had overflowed during this event.
Mr Lewis relied on the evidence of Mr Michael Ray Randell, a roofing plumber. Mr Randell had a Trade Certificate in Roof Plumbing since May 2009 (HB Vol 2 at page 683) and seven years' experience since qualifying, three of which were in his own company. He acknowledged that he did not have experience in underground drainage and that his evidence was simply in respect of gutters and downpipes.
Mr Randell confirmed that he had provided a report (HB Vol 2 at page 675) stating that there were insufficient downpipes from the roof of the house. The house had eight downpipes when, in his opinion, it should have had ten to drain the slotted gutters at eaves level. In his view, in an extreme rain event, RWPs would have insufficient capacity to carry water to the ground and gutters and RWPs would therefore overflow.
Mr Randell based his opinion on calculations and drawings he had prepared in his report under the name of 'Mr Roofing' (Exhibit 4) which he stated were in accordance with the methodology set out in section 3 of the Australian Standard AS/NZS 3500.3:2003 Plumbing and Drainage Part 3 Stormwater Drainage (Exhibit 6). The calculations stated that the plan area of the roof was 211.5m² and that the roof was at a 25ᴼ pitch, resulting in a factored catchment area of 260.1m². In crossexamination Mr Randall accepted assertions that the roof may only have had a 22.5 degree pitch which reduced the catchment area by a small margin to 253m² but, in his view, that did not affect the number of RWPs he considered were necessary by his calculation.
Mr Randell's drawing expressed the need for two additional RWPs: one was to be placed on the long southeast face of the house where the gutter ran the full length of the house and the other on an independent patio structure half of which drained into the gutter on the northwest side of the house.
In crossexamination, Mr Randall acknowledged that during his time of working for builders within Kalgoorlie it was the practice to install eight RWPs on each such housing unit. Mr Hedges, for Waco, acknowledged that he had made no calculations regarding RWPs but followed established local practice.
Waco relied on the evidence of Mr Duncan Jack who gave joint evidence with Mr Joe Arena, who was called by Mr Lewis, regarding various of the complaint items.
Mr Jack is a professional civil and structural engineer with 23 years' experience in Kalgoorlie since graduation. Mr Jack owned and operated a company, Duncan Jack Consulting Engineers Pty Ltd, for the last 12 years.
Mr Joe Arena is a professional civil engineer based in Perth with 35 years' experience, primarily in the oil and gas industry, but with early experience, and the last four years, in the domestic housing sector. He was a principal of a civil and structural engineering consultancy, Arena Clauson Engineering Group. Mr Arena acknowledged he had no expertise of rainwater drainage above ground and did not give evidence on this issue.

Mr Jack accepted that the calculations made by Mr Randell according to AS/NZS 3500.3:2003 appeared valid and he did not dispute them (T:55; 26.07.16). Nevertheless, he considered that overall this would not be detrimental to the operation of the system (T:67; 26.07.16). He noted that gutters had been laid flat. If instead they had been laid at falls of 1:500 as permitted by AS/NZS 3500.3:2003, in his opinion the calculations would show that the additional RWPs were no longer needed. He noted further that the Standard assumed that the RWPs would cope in a storm with an average recurrence interval (ARI) of 1 in 20 years and that that storms which would exceed the capacity of the RWPs could be expected two or three times in the lifetime of the house. It was known that the particular storm event featured in the video was severe but it was not known whether the five minute rainfall intensity described in the standard was more or less than would occur at an ARI of 1 in 20 years. More importantly, in Mr Jack's opinion, was the overland flow path the path by which the water flowed away from the house and dispersed rather than flowing into the house. Waco had engaged Cardno Spectrum Surveys to establish levels around the house (HB Vol 2 at page 718). The survey showed that water would drain away from the kitchen door. Mr Jack also noted that it was necessary to step up by one brick over the kitchen door threshold and therefore no water could penetrate internally from any gutter or RWP overflow. Mr Jack explained that the gutters were manufactured with slots on the outside of the gutter and were designed to cope with a 1 in 100 year storm event.
The Tribunal has reviewed the calculations of Mr Randell and notes that they take into account the full catchment area of the patio roof which is independent of the house. Mr Randell calculated that it has a plan area of 26.4m². Half of this patio drains naturally away from the house. In consequence, the plan area of the catchment flowing to the gutters on the house reduces by half of 26.4m² to 198.1m². Such an adjustment nevertheless produces a requirement of just over nine downpipes attached to the house. The Tribunal therefore accepts that an engineering assessment of the size and number of downpipes in accordance with AS/NZS 3500.3:2003 demonstrates a theoretical shortfall of the number of downpipes.
In the absence of any video evidence or of evidence that the storm event described by Mr Lewis was of such intensity as to constitute a 1 in 100 year event, the Tribunal does not accept that the gutter overflowed as asserted by Mr Lewis. It is more likely that what he observed was water flowing out of the gutter slots.
The Tribunal also accepts the evidence of Mr Jack and of the survey, that in the event of an overflow of the RWPs or gutters, the overland flow path is such that rainwater will flow away from the house. The result is that in a very heavy downpour the capacity of the RWPs may be exceeded and the gutters (in a 1in 100 year event) may overflow and the water which overflows will join the water from rain that naturally falls on the overland flow path. The overland flow path is away from the kitchen and there is no likelihood of the kitchen being flooded. Because there are only eight RWPs rather than nine, statistically there is a greater chance of overflow more than once in 20 years. Evidence of how much greater was not provided.
The question that the Tribunal must answer is whether the roof drainage has not been carried out in a proper and proficient manner or is faulty and unsatisfactory.
The Tribunal finds that the above ground drainage system is technically faulty in that one less RWP has been installed than is necessary to comply with AS/NZS 3500.3:2003 and may not cope with a 1 in 20 years storm event. However, clause 5.3.3.1 of that Standard sets out the object of the drainage requirements for roof areas, which is that storm water shall, in general (underlining added for emphasis), be collected in gutters and downpipes and during periods of high rainfall intensity, or blockage should be discharged through overflow devices (as through the slotted gutters) (parenthesis added) to relevantly, paved areas. Here, as demonstrated, the established overflow path will avoid entry of water into the building. Further, Mr Lewis has since the rain event he described had a bubble up pit installed which acts as an overflow device and which will minimise the risk of water welling up from the RWP shown in the video such that the Tribunal does not consider that there remains any practicable advantage in installing an additional down pipe.
In respect of above ground rainwater pipes and gutters, therefore, the Tribunal declines to make a building remedy order under s 38 of the BSCRA Act and this aspect of the complaint will accordingly be dismissed.
The Tribunal now turns to the rainwater disposal system below ground.
The complaint is that stormwater pipes laid in the ground and discharging at the street kerb do not have sufficient capacity to discharge water in a storm event, do not have adequate falls, and that one section has a reverse fall causing ponding of water. In consequence it is asserted the work is faulty and unsatisfactory.
Mr Lewis referred to the same video evidence claiming that the welling up of water from the underground pipe during the storm event demonstrated that the pipe had insufficient capacity. Photographic evidence (HB Vol 1 at page 30) appears to show some ponding of water at the base of piping within the bubble up pit which Mr Lewis caused to be installed.
The experts, Mr Jack and Mr Arena, agreed in their joint expert report (HB Vol 2 at page 761) that one 90 millimetre rainwater pipe discharged into the street at the kerb and that one pipe at this point appeared insufficient. They also agreed that the likely reason for ponding that Mr Lewis referred to was that there was insufficient fall and there was an indication that one pipe ran uphill from the rear of the garage to the street on the northeast side of the property.
Mr Arena referred to his report provided to the Tribunal (HB Vol 2 at page 686). Mr Arena acknowledged that he had not been to site but relied on photographs taken by Mr Lewis for his report.
From the photographs he concluded that the pipe was installed at a gradient of 2% along the northeast side of the property and that the high point of the pipe was at the end nearer the street. He considered that the pipe gradient should have fallen towards the street but was, in fact, falling away from the street. He concluded that this was the source of ponding in the pipe and the cause of the tendency of the pipe to overflow from a bubble up pit in the garden bed.
In his report, he provided brief calculations of the water that could be held in eight full RWPs and stated that, without going into the computational calculations stipulated in AS/NZS 3500.3:2003, he considered that the underground storage pipe would have to cope with approximately 5.4 times its capacity in order to drain the RWPs. From this approximate calculation he concluded that the system would require one additional pipe to the street.
Mr Arena also concluded that the existing pipe should be re-laid to correct falls.
Mr Jack confirmed that in accordance with his report (HB Vol 2 at page 711) he had visited the site on 16 December 2015, primarily to consider structural matters. The report noted that Mr Lewis had undertaken some works to move a RWP on the northeast side of the property adjacent to the rear of the carport and relocate some underground pipework. The relocated RWP discharges into a new grated gully.
Mr Jack was asked whether the addition of the bubble up pit which was installed would sufficiently relieve the pressure away from the house. He responded that he had not done a calculation but that water would flow through the bubble up pit to relieve pressure in the pipe if it was overflowing.
The Tribunal was taken to two versions of the same drawing of the site plan. The first drawing (Exhibit 14), stamped by City of KalgoorlieBoulder on 5 September 2014, showed Unit 1 to be drained by two pipes to the street kerb, one on either side of the Unit. A third parallel drain drained water from the rear of Unit 2 and Unit 3 beneath the carport of Unit 1 to the street. A fourth parallel drain also led to the street from the rear units along the verge of the common driveway to the rear units. The second drawing (HB Vol 2 at page 721), stamped by City of KalgoorlieBoulder on 29 October 2015, showed a redesigned drainage system with a perimeter drain in a ring around the entirety of Unit 1. The ring was drained from the southwest corner of the Unit to the street kerb by a single pipe along the verge of the driveway, parallel and adjacent to two pipes draining the rear units.
The effect of the redesign is that stormwater from Unit 2 and Unit 3 does not drain under the carport of Unit 1 but instead water was piped along the verge adjacent to the common driveway. The secondary effect is that the drainage from Unit 1 was changed from two pipes to the street, one from either side of the Unit, to a ring drain around the Unit connected by a single pipe to the street.
Waco acknowledged (T:91; 26.07.16) that the redesigned drawings were not initially lodged with the council but were lodged, together with other as built drawings, after Mr Lewis had made a complaint to the City of Kalgoorlie-Boulder.
The Tribunal sought the opinion of both experts on the design of the pipework and, in particular, the applicability of clause 5.5 of AS/NZS 3500.3:2003. Clause 5 of the Standard is entitled Surface Drainage Systems Design. Clause 5.5 states:
5.5Nominal Method
The 'nominal method' may be used for single dwellings in nonurban areas and single dwellings on urban allotments with less than 1000m² in area. Pipe design shall be determined according to local practice and experience (without specific design calculations), and according to the minimum diameter (Clause 7.3.4), cover (Clause 7.2.6) gradient (Clause 7.4.6) and other relevant criteria of the Standard.
Clause 7.3.4 describes minimum diameters of pipes and states relevantly:
Minimum diameters
(a)for single dwellings in non-urban areas and single dwellings on urban allotments with areas less than 1000m², shall be DN90, and …
The experts agreed that the 'nominal method' was applicable in this particular circumstance since the allotment size for Unit 1 was considerably less than 1000m² (T:7; 27.07.16). The experts also agreed that the minimum diameter of pipe that could be used was 90 millimetres (T:8; 27.07.16), as had been used.
The experts could not agree whether one pipe or two pipes would be required for the length of pipe running from the drainage ring around the house to the road according to the 'nominal method' in the standard, although they had previously concurred in their joint expert report that one pipe was insufficient. However, they did agree that one pipe with the addition of the bubble up pit in the garden to relieve surcharge would be sufficient, even if two pipes would be required in the absence of the bubble up pit (T:10; 27.07.16).
Given that the experts agreed that one pipe together with the bubble up pit produced a sufficient system, the Tribunal finds that the capacity of the system is satisfactory.
Turning to the gradient at which the part of the ring drain along the northeast side of Unit 1 has been laid, the Tribunal accepts the photographic evidence that it falls from the front of the Unit to the rear and consequently falls away from the street. Mr Arena confirmed that the fall on the pipe was two degrees, which exceeds the minimum requirement of 1 in 100 required by clause 7.3.5 of the Standard.
Had the drainage system been built to the original plan then the pipe would indeed have been laid to an incorrect fall with water being expected to drain uphill. Evidence has been given, and accepted by the experts, that the pipes were laid to the revised design with a ring of pipes around the Unit picking up drainage from the roof. Correctly installed, the ring will have a single high point from which it will fall in both directions around the house. If the high point is at the north corner of the ring around the house, as appears likely from the plans and the photographic evidence, it is of no consequence whether the water within the pipe shown in the photographs flows via the rear of the house or the front of the house to reach the discharge pipe to the street. The gradient of the pipe is sufficient and it falls correctly towards the outlet.
The Tribunal is not satisfied that ponding has been caused as a result of any pipe laying by Waco. The evidence of ponding provided was a photograph of the bubble up pit outlet in which there was some water. Mr Lewis acknowledged that the bubble up pit had been installed on his behalf subsequent to taking occupation of the Unit. That cannot be considered work by Waco. The Tribunal is unable to determine on the evidence why this relatively minor ponding has occurred. There could be some obstruction within the piping. It could be that it is the manner in which the bubble up pit has been installed or it could be the design of the bubble up pit itself which is the cause.
The Tribunal accepts that the underground drains were not built in accordance with the originally approved plan which was submitted to the City of Kalgoorlie-Boulder. However, the drainage was built to the built drawings subsequently accepted by the City. The system was built in accordance with the requirements of AS/NZS 3500.3:2003 as required by the National Construction Code (NCC). Therefore, the work cannot be described as faulty or unsatisfactory.
The Tribunal does find that the below ground drainage system was not constructed in a proper or proficient manner by reason that Waco failed to construct in accordance with the approved plans as it was contractually bound to do. The system was installed without the approval of the City of KalgoorlieBoulder, such approval having been obtained approximately 17 months after completion of Unit 1 and only well after Mr Lewis lodged his first complaint with the Building Commissioner which included this issue. But the constructed system is arguably better than the original design which involved piping serving other units being covered by the concrete floor of the Unit 1 carport/garage and, for the reasons given above, it is not faulty or unsatisfactory.
In consequence, the Tribunal declines to make a building remedy order in accordance with s 38 of the BSCRA Act in respect of this aspect of the complaint.
The whole of Complaint 2 will therefore be dismissed.

Complaint 3 garage posts

The complaint is that the garage (carport) posts, as constructed, are exposed to moisture and are sitting in the dirt below the slab where corrosion is starting to affect structural integrity.
Mr Lewis asserts that the garage post footings do not comply with the Building Code of Australia, the drawings submitted with the certificate of completion and/or the approved drawings referred in the building permit.
The drawings show a carport at the property with a roof supported partially on a brick structure and partially by 100 millimetre by 100 millimetre square hollow section columns.
Mr Jack, in his letter dated 23 September 2015 to Waco following inspection of the carport steel (Exhibit 10) and in his subsequent report dated 23 December 2015 (HB Vol 2 at page 711), noted that the original design for the carport showed mild steel columns protected by bituminous paint from the base of the steel to finished floor level. Subsequently, Waco installed galvanised steel posts with no bitumen protection. The cathodic protection offered by the zinc galvanising was very dependent on the soil type. In this case, the extent of soil reactivity and the thickness of the galvanising were unknown. It was therefore recommended that the steel be coated with bituminous paint where it was in direct contact with the ground. Nevertheless, the rate of corrosion of the galvanised section was such that the minimum life of the steel was expected to be 35 to 50 years.
Mr Jack and Mr Arena agreed at conferral on 27 June 2016 (HB Vol 2 at page 762):
Base of posts between top of footing and underside of slab to be suitably treated to prevent further corrosion. Prior to treatment steel surface to be thoroughly cleaned.
Mr Lewis accepted this view. Waco challenged the experts' joint report.
Mr Jack accepted that what was shown on the design drawing was different to what was installed. However, in his opinion, the steel posts still had a protective coating in the zinc galvanising. He stated that zinc is an anode which rusts, or starts to corrode, but protects the parent steel. It was common to see rusting on galvanising because the galvanising was doing its job as a protective coating protecting the parent steel.
Mr Arena maintained his opinion that further protection was necessary in an environment of acidic soils alternately wetting and drying, since corrosion was visible despite the galvanising. His preferred solution was to set the galvanised post in concrete up to ground level but he accepted that bitumen had been considered acceptable as an option in conferral.
The Tribunal noted that both experts appeared to be changing their agreed position at conferral as expressed in their joint expert report. The purpose of expert conferral prior to the hearing is to minimise the matters in dispute to be decided at the hearing. In order to maintain the integrity of the process, the experts are bound by what they agreed in conferral unless a genuine mistake had been made or some other good reason exists which, in the discretion of the Tribunal, justifies departure from the agreed position.
The experts had agreed that suitable treatment was required and the treatment specified in the drawings which had not been applied was bituminous paint. There being no suggestion of a mistake having been made or of any other good reason permitting departure from what had been agreed by the experts, the Tribunal concludes that the lack of bituminous paint makes the work faulty, which has led to visible corrosion. In consequence, the Tribunal will make a building remedy order in accordance with s 38 of the BSCRA Act to clean the steel between the top of footing and underside of slab and to coat the steel hollow sections up to finished floor level with bituminous paint except where they are already encased in concrete.
Mr Lewis raised a justified concern as to how Waco would be able to undertake proper cleaning and application of paint at the back of the posts. This was raised when dealing with the next complaint item which was similar with reference to the patio posts. Both experts acknowledged that it might be necessary to cut away part of the concrete slab. This is a matter for Waco. Mr Lewis is entitled to observe carefully how the repairs are carried out and, if he alleges there has been a failure to comply with the Tribunal's order, he will be able to apply for that order to be revoked and to seek a monetary compensation order.
Mr Lewis' dilemma is that he made it clear that he would be unhappy to have the slab cut. The Tribunal's order will require that Waco make good any damage occasioned by the repair work so as to achieve a satisfactory aesthetic result, but opinions may well differ on what is aesthetic in the circumstances. It would be helpful if Waco is able to inform Mr Lewis in due course as to how it intends to comply with the Tribunal's order (although it is not bound to do so). If Waco concludes it will have to cut the slab, Mr Lewis may decide whether he wishes to abandon the order in his favour, which he could state in writing to Waco, or he might otherwise agree in writing with Waco that he will accept cleaning and painting without the slab being cut even if Waco cannot guarantee that it will be able to adequately clean and paint the back of the posts following this remedial method. In effect, Mr Lewis could agree in writing not to apply for the order in question to be revoked and substituted by a monetary order on the ground that the back of the posts had not been adequately cleaned and painted.

If no such arrangement is made, Waco is obliged to comply fully with the Tribunal's order but is free to choose how to do so.

Complaint 4 patio posts

The complaint is that the patio posts, as constructed, are exposed to moisture and are sitting in the dirt below the slab where corrosion is starting to affect structural integrity.
Mr Lewis asserts that the patio posts suffer from exactly the same corrosion problems as the garage posts referred to in Complaint 3.
Photographic evidence shows paint de-bonding from the posts below ground.
In his report, Mr Jack noted that the steel posts were painted and appeared to be galvanised in addition. He accepted that the paint coating was deteriorating and that bituminous paint should be applied below ground where the column was in direct contact with soil.
The experts agreed at conferral that the base of the posts between the top of the footing and underside of slab should be suitably treated to prevent further corrosion and that prior to treatment the steel surface should be thoroughly cleaned.
The experts noted the potential difficulty for Waco to remedy the work in obtaining access under the slab and proposed that the exposed area could be refilled with concrete and not soil.
For similar reasons to those set out in Complaint 3 above, the Tribunal finds that the work is faulty and unsatisfactory and that Waco must remedy the work by removing the de-bonded paint, cleaning the exposed steel and coating it in bituminous paint. The Tribunal's comments above concerning Waco's obligation to fully comply with the order and how, if Waco considers it necessary to cut the concrete slab, Mr Lewis might reach an agreement with Waco to avoid the concrete being cut should he wish to do so, apply equally in relation to this complaint item.

Complaint 5 patio post sizes

The complaint is that the steel posts supporting the patio cover are made of 90 millimetre by 90 millimetre steel hollow sections instead of 100 millimetre by 100 millimetre steel hollow sections as noted on the architectural drawing submitted to City of Kalgoorlie-Boulder on 26 September 2014 (HB Vol 1 at page 38).
At the conferral on 27 June 2016, the experts accepted that there was a discrepancy between the size of the posts noted on the architectural drawing and the size of the posts actually supplied. However, it was accepted that the posts were part of a complete patio manufactured by Stratco. The 90 millimetre by 90 millimetre posts were compatible with the system and there were no structural issues.
The Tribunal accepts that there is a discrepancy between the size of the posts on the architectural drawings and the size of posts installed. However, the size of posts installed is based on a proprietary system manufactured by Stratco and in accordance with the manufacturers' specifications. Further, the size has no effect on any surrounding part of the house. The Tribunal therefore accepts it is suitable for the size of roof and is neither faulty nor unsatisfactory and, further, that the nature of the discrepancy, in the circumstance that the smaller size is in accordance with the manufacturer's design and the plans also specifically referred to the manufacturer by name, means that it cannot be found that Waco did not carry out the particular works in a manner which is not proper or proficient.
This complaint item is dismissed.

Complaint 6 patio posts rusting

The complaint is that certain of the patio posts are showing signs of rust marks.
The expert witnesses' joint report reflects that in their conferral they mistakenly thought they had addressed this complaint in their consideration of Complaints 3 and 4. Consequently, they had not commented on the rust complaint.
Photographic evidence (HB Vol 2 at page 744) shows corrosion of metal developing in pinhead sized areas across one or possibly more posts.
Waco asserted that this was likely to have occurred when grinding was carried out nearby. Hot metal flecks had been flung at the post and buried themselves in the paint coat. They had then rusted. The experts accepted that this was a reasonable explanation for the type of rusting.
Mr Hedges, for Waco, acknowledged that this had been the subject of email correspondence between Mr Hedges and Mr Lewis and that Mr Hedges had agreed it would be repaired and repainted. Mr Hedges did not dispute this evidence (T:117; 26.07.16).
The Tribunal will therefore make an order for the finish on the posts to be remedied.

Complaint 7 garage (carport) slab thickness and omission of waterproof membrane

The complaint is that the concrete slab built within the carport is faulty and unsatisfactory because it does not comply with the NCC, in that:
•it averages only 80 to 90 millimetres in thickness;
•the concrete is not steel reinforced;
•it has no edge thickening;
•there is no waterproof membrane under the slab; and
•structural cracks are appearing.
In conferral, the experts accepted a report by Total Scan and Survey dated 15 January 2016 (TSS Report), which established by the use of ground penetrating radar that the carport slab thickness averaged 83 millimetres (HB Vol 2 at page 674). They also agreed that there was no waterproof membrane under the slab and that the slab was unreinforced. Photographs within the TSS Report showed that the concrete within the slab had been cast in four bays, each approximating 2.6 millimetres by 2.6 millimetres with a clear joint between each bay (page 661). The concrete driveway leading to the road was cast in similar bays with joints aligning with those in the carport.
Mr Lewis asserted that the carport slab was an integral part of the house in that both the carport and the house were contained under one single roof. The single structure was a Class 1 structure in accordance with the NCC. It was therefore required to have footings and a slab which complied with AS 28702011 'Residential Slabs and Footings' (Exhibit 16).
The experts agreed that the applicable version of the NCC was the 2012 version, the relevant parts of which were tendered in evidence (Exhibit 15).
Mr Jack noted that while he had designed the slab within the Class 1 dwelling, about which there was no complaint, he had not been required to design the slab to the carport. Drawing KA3845/C/001 Rev1 prepared by Mr Jack showed various cross sections through footings. The experts agreed that the footings to the carport, denoted 'Type C' on the drawings, were in accordance with AS 2870. They disagreed on the whether the carport slab was required to meet AS 2870 since they could not agree whether the carport should be classified as a Class 1 structure or a Class 10(a) structure under the NCC as the roof formed one integral structure. The experts accepted that there was no requirement for a waterproof membrane or vapour barrier under a Class 10(a) structure as the slab could vent into the atmosphere.
The Tribunal notes that, as defined by the NCC, a Class 1 building is a single dwelling. A Class 10(a) building is a non-habitable building, being a private garage, carport, shed or the like. In accordance with Figure 1.3.3, relevantly, a Class 10(a) building may be attached to a Class 1 building. Clause 1.3.3 requires that each part of a building must be classified separately (Tribunal's emphasis). The one exception to this rule arises under clause 1.3.3(c), where a classification of Class 1 may apply to the whole building if the area which would otherwise be differently classified is less than 10% of the overall floor area of the building. The carport floor area is significantly more than 10% of the overall area and therefore the exception does not apply.
The Tribunal therefore finds that, irrespective of the integral roof, the carport must be classified as a Class 10(a) building. Accordingly, the Tribunal accepts the experts' joint opinion that there is no need for a waterproof membrane under the slab.
Mr Lewis also asserted that the slab was required to comply with the 'imposed floor actions' in Table 3.1 of AS/NZS 1170.1 (Exhibit 13). The table specifies a uniformly distributed load of 2.5kPa and a concentrated load of 13kN for light traffic areas such as garages and driveways. It was the opinion of Mr Arena that an unreinforced concrete slab of 83 millimetres thickness would be unlikely to support such a concentrated load if it were to be applied. Mr Arena acknowledged that the ability to support the load would be dependent on the substrate. The Tribunal was not provided with any evidence that load testing to the requirements of AS/NZS 1170 had been undertaken. The ability of the carport slab to withstand the specified loading can therefore only be a matter of speculation and not proof.
The Tribunal has considered the extracts of AS 2870 provided in evidence (referred to in the following discussion as the Standard). The Standard provides various examples of designs which do not cover all cases. The Tribunal finds no evidence of prohibition of the type of design provided. Designs are engineered in many ways which cannot all be illustrated by standards even though they are compliant. While not wholly comparable to the design in question, the Tribunal notes that in clause 3.4.1 the Standard permits an 85 millimetre concrete slab for garage floors over a formed void. The inference must be that 85 millimetres may be adequate where concrete is laid on compacted sand providing even support. Such an inference is supported by the reference in section C3 of the appendix to the Standard that:
… a practical minimum slab thickness for normal building construction is 100mm unless the construction is supervised by a qualified engineer, in which case, the minimum slab thickness may be 85mm.
The undisputed evidence establishes that the average slab thickness was 83 millimetres and the Tribunal finds that that such an amount, while fractionally below the minimum stated, is unlikely to be of any significance, particularly as the dwelling has been occupied since February 2015 and, as discussed further below, there is no evidence of any failure of the slab.
Mr Lewis asserts that a slab thickening is required at the slab edges. Such a thickening is shown on the cross section marked 'Strip Footing Type C'. The Tribunal acknowledges that a thickening is shown and understands that it has not been provided. However, the Standard expressly permits slabs to be built in such a manner, for example, in Figure 3.6. In discussion, in section C3 the Standard specifically states that such thickening is not necessary in this case. The Tribunal therefore does not accept that the lack of slab thickening constitutes faulty or unsatisfactory work.
The slab has not been reinforced. Unreinforced concrete slabs are referenced only briefly in the Standard in the context of the use of paving bricks or paving slabs. Nevertheless, the Standard notes that the major purpose of reinforcement is to control shrinkage cracks in slabs with lengths of up to 18 metres. The slabs within the carport have been cast in bays of only 2.6 metres, leaving them less vulnerable to shrinkage cracks than very large slabs. Mr Arena, who, as mentioned above, never attended at the property, relied on photographic evidence included in his report to support his opinion that the carport slab would eventually fail (HB Vol 2 at page 688, 691 and 692). Mr Lewis conceded (T:5657; 27.07.16) that the photographs which he had provided to Mr Arena showed a single crack coinciding with the penetration of the slab by a steel column. While there had been no load testing carried out, Mr Arena testified that he understood the carport had been in use and conceded the crack shown was likely as a result of weakening caused by differential expansion of the metal post and the concrete (T:59; 27.07.16). Mr Lewis did not attempt to obtain any qualification of this evidence. The Tribunal does not consider this constitutes any failure of the slab which would at least be evidenced by cracks occurring through the slab, not a single localised crack explained as above. The Tribunal finds that the joints between bays have, to date, been sufficient to control cracking and that the lack of reinforcement is not faulty or unsatisfactory.
The failure to construct the slab to a thickness of 100 millimetres and to provide edge thickening as shown in the contract approved engineering drawings is a failure to carry out the regulated building service in a proper and proficient manner, but for the reasons given above, there has been no failure of the slab, there is no indication that it is likely to fail, having been subjected to normal use for some 18 months as at the date of hearing without any material cracking, and if it does fail in the future, Mr Lewis still has a considerable period within which a new complaint could be made based on a manifested defect. At this stage, the failure to carry out the works concerned in a proper and proficient manner is without any consequence and does not warrant the grant of a building remedy order.
Complaint 7 will accordingly be dismissed.

Complaint 8 no patio waterproof membrane

The complaint is that contrary to the approved contract drawings, and in particular Note 8 to the engineering drawings, the slab to the patio was not underlain by a 0.2 millimetre polythene sheet, being a form of waterproof membrane.
The joint expert report reflects that Messrs Jack and Arena agreed, in the Tribunal's view correctly, that the patio is a Class 10(a) structure not subject to AS 2870 design requirements so that no waterproof membrane is required.
The Tribunal did not understand Mr Lewis to be pressing this claim on the basis of the work having allegedly not been carried out in a proper and proficient manner, but we shall deal with that matter shortly in case we have misunderstood his position.
There was an issue between Mr Jack and Mr Arena as to the extent to which the design drawings applied to the carport. Mr Arena, in his separate report, expressed the view that the issues relating to the patio were identical to those relating to the carport. Mr Arena moved from that position as reflected in the joint expert report. In the Tribunal's view, he was correct to do so. It is clear that the only slabs referred to in the various footing designs in the engineering drawings were to be 100 millimetres thick. The approved construction drawings (Exhibit 3) show that the slab for the patio was to be 80 millimetre thick concrete so it cannot be that the engineering drawings, and therefore the above Note 8, had any application to the patio. It follows that there is no basis to find that the works concerned were not constructed in a proper and proficient manner.
Complaint 8 will accordingly be dismissed.

Complaint 10 front entry door

The complaint is that the front door is striking the timber upright.
Mr Lewis gave evidence that the door was bowed like a boomerang and that he had been unable to close the door on the first day he was given the keys (T:100, 103; 27.07.16). He explained that on that day he had spoken to a worker engaged on one of the other units because he could not lock the door. Mr Lewis did not see exactly what work was done but it appears the worker removed a screw from the vicinity of the bolt hole and may have drilled the bolt hole deeper (T:102103; 27.07.16 and HB Vol 1 at page 77). Mr Lewis relied on photographic evidence to support his position (Exhibit 20).
The Tribunal raised with Mr Lewis that the photographs seemed to show that the problem might be that the section between a glass panel and the door seemed to have opened up (T:103; 27.07.16). Mr Lewis initially denied this (T:104; 27.07.16), and only after the Tribunal persisted did he concede that the section had moved, but he still maintained the door was bowed (T:105; 27.07.16).
The Tribunal notes that in an email on 30 March 2015 Mr Lewis referred to the front door issue and set out a description of the cause of the problem entirely consistent with the hypothesis which the Tribunal had raised with him and made no suggestion that the door was bowed or out of square.
It is a matter of concern that Mr Lewis presented this aspect of the case in the way he did because it shows a tendency to reconstruct the evidence and consequently means that the Tribunal must approach his evidence with a degree of caution where it is not supported by other material which can be objectively assessed. One would have expected that once Mr Lewis was confronted with the Tribunal's hypothesis he would have immediately expressed some doubt about his position but he did not. It will be noted below that the Tribunal has concerns about the evidence Mr Lewis gave in relation to Complaints 12 and 15 for largely similar reasons.
The Tribunal makes no finding that the door is bowed. It nevertheless remains the case that the door is faulty or unsatisfactory because it cannot be closed without coming in contact with the adjoining timber section and glass panel.
A building remedy order will accordingly be issued in respect of Complaint 10 requiring Waco to achieve a uniform gap between the side of the door and the frame.

Complaint 11 cracking in Gyprock walls (inside)

The complaint relates to two cracks, one of which is in a front bedroom which Mr Jack referred to in his report dated 23 December 2015 as a front study room (crack 1), and the second is in a lounge room (crack 2).
Mr Jack described crack 1 as a hairline crack above the window to the cornice of a type to be expected and normal for reactive clay sites. He recommended no action be taken. In relation to crack 2, Mr Jack described the crack as a vertical crack at the junction of the lounge and external wall where it appeared that the joining tape might not be adhering to the wall. He recommended the fixing tape be refixed.
Mr Jack is Waco's witness and his evidence effectively stands unchallenged save by Mr Hedges suggesting that there should be no obligation imposed on Waco because it did not contract with and build the house for Mr Lewis. That contention is misconceived, as is apparent from the Tribunal's reasons above, in relation to the second issue identified.
There is no evidence to suggest faulty or unsatisfactory work by Waco in relation to crack 1 and the complaint will in that respect be dismissed.
A building remedy order will be issued in respect of crack 2 which the Tribunal finds arises from faulty or unsatisfactory work.

Complaint 12 laundry washing machine taps

The complaint is that the laundry plumbing, as completed, did not allow for the fitting of standard hoses and that temporary non-matching taps were fitted and should now be replaced with matching taps after extending the wall fittings.
Mr Lewis testified that a meeting was arranged with Mr Hedges and Waco's plumbing contractor to address the issue, and that the temporary taps were fitted on the understanding that they would be replaced later with matching taps. Mr Lewis did not contradict the premise put to him during crossexamination by Mr Hedges that, although he had been present at the commencement of the meeting, he had left and could not comment on Mr Lewis's assertion that it was agreed the taps to be then fitted would be replaced later.
The Tribunal approaches Mr Lewis' evidence with caution for the reasons explained above in relation to Complaint 10 but also for the following additional reasons:
1)The evidence does not refer to any agreement to replace the wall fittings so that they would extend further out of the wall without which the original matching taps would be unsuitable.
2)In an email dated 11 February 2015 (HB Vol 1 at page 85) addressed by Mr Lewis to Mr Hedges, Mr Lewis expressed his thanks for the rectification work in fitting two taps in the laundry stating that he was happy to accept this although it was not his preferred option.

While the original work may well have been faulty and unsatisfactory, the Tribunal finds that the remedial work was accepted as being suitable and, in the circumstances, is not faulty or unsatisfactory.
Complaint 12 will accordingly be dismissed.

Complaint 13 rear patio lights

Mr Lewis advised that he would not pursue this complaint item and an order will be made granting leave to withdraw and withdrawing the complaint item.

Complaint 14 kitchen cabinets

The complaint is that holes have been left in the kitchen cabinets.
Mr Lewis referred to photographic evidence (HB Vol 2 at page 752) to demonstrate that a shelf in a cabinet has two screw heads and two holes visible from which he inferred that the installer had been unsuccessful in his initial attempts to secure the cabinet to the toe board. Mr Lewis stated that the installer had then smeared some silicon in the holes. Mr Lewis claims that the cabinet should be replaced.
Mr Hedges asserted that it appeared from the photograph that a Maxi Seal cap had been removed from a hole visible in the shelf which would have been flat on the surface, and, in a question to Mr Lewis, put to him that he had admitted doing so. Mr Lewis denied this.
At the outset of the hearing and after some discussion with the Tribunal Mr Hedges elected not to give evidence because he considered he would be able to establish Waco's defence through the expert evidence or crossexamination. There is accordingly no evidence of the alleged admission.
The Tribunal finds that the photograph shows one obvious hole and there is a mark visible where it appears a pilot indentation has been made for a proposed drill hole in line with the other open and uncovered hole.
The Tribunal finds that the work concerned is faulty and unsatisfactory as a consequence of the uncovered hole and pilot indentation and a building remedy order will be made. However, it should not be necessary to replace the whole cabinet. The order will require Waco to either resurface or replace the affected shelf so as to achieve an aesthetic result.

Complaint 15 ceiling ventilation

The complaint is that a ceiling vent was left with ducting sitting beside the vent fixture.
Mr Lewis' evidence was that the ducting was supposed to vent through the carport but, as shown in a photograph (HB Vol 2 at page 753) (photograph 1), the ducting had simply been left lying (which the photograph shows to be at the side of the vent, to one side on the ceiling) and there was no fitting to attach it to the vent. He stated he had been accused 'of going camping with it' but that was not arguable, he stated, because there was no fitting, and if there was, then it could be said that he had 'undone it and just flopped it to the side. But there's no fitting … [i]t's just … a flush bit of Gyprock ceiling' (T:117; 27.07.16).
Mr Hedges suggested in crossexamination that anyone could have pulled the ducting off the vent.
The photograph referred to by Mr Lewis supports his evidence which, on its face, would be sufficient to justify the grant of a building remedy order. But the Tribunal is satisfied that the photograph is not a true representation of the state in which the building work was completed.
When the complaint was lodged with the Building Commissioner, the supporting documentation included a photograph (HB Vol 1 at page 84) (photograph 2) which depicts a very different state of affairs. It reflects the ducting, not lying to one side, but positioned immediately above the vent. There is a section of ducting nearest the vent which is smooth and appears to be a stiffened section of larger diameter designed to fit over the vent. There is a darker ring section sitting on the vent. These appear to constitute the 'fitting' which is missing from photograph 1 to which Mr Lewis took the Tribunal in evidence. There is what appears to be insulation visible in photograph 2 that has been removed and is not visible in photograph 1.
This raises a concern whether Mr Lewis has specifically staged what is depicted in photograph 1 to meet Waco's contention that he had removed the fitting and has given deliberately misleading evidence to the Tribunal. It would be inappropriate to make any such finding when Mr Lewis has not had an opportunity to offer any explanation of the discrepancies between the photographs, and when the Tribunal has excluded evidence going to the relationship between the parties, but not relevant to the statutory criteria determinative of these proceedings.
Nevertheless, the animosity between the parties, no matter who is responsible for it, is evident from the documentation before the Tribunal and the way in which the proceedings have been conducted. Based on the existence of that animosity and the discrepancies in the photographs, both of which were provided by Mr Lewis, the Tribunal cannot be satisfied that the work as carried out by Waco relating to this complaint item is faulty or unsatisfactory and this complaint will be dismissed.
The following three complaint items were made in the second complaint made to the Building Commissioner.

Complaint 16 water mains gate valves

The complaint is that the water mains are not accessible to turn off the water because they were buried from the construction of the site and back filling.
Mr Lewis referred to photographs (HB Vol 2 at pages 722725) and to photographs and emails from the Water Corporation (Exhibit 22) which show that the mains are partly covered in sand within what, he admitted under crossexamination, is a reticulated garden but which the Water Corporation stated should have been installed with the metal chamber of the meter 1025 centimetres above the ground level.
The evidence establishes that the Water Corporation installs the meters upon application by the owner of the property and it has a standard height at which meters should be installed. There is no evidence that the meter was actually installed according to that standard nor that Waco has done anything wrong. The location of the meter is obvious. The tap can be easily exposed. In the experience of the Tribunal, meters are often left by owners only partially exposed in garden beds because they are presumably considered unsightly when left fully exposed. As appears from the Water Corporation email, the owner would usually have to apply for an alteration to the height at the owner's cost. Consequently, even if the Tribunal is wrong in concluding that no liability falls on Waco, this is an issue in relation to which the Tribunal would not exercise its discretion requiring any remedial action to be taken by Waco.
This complaint item will accordingly be dismissed.

Complaint 17 paint peeling around garage (carport)

The complaint is that the paint on a timber strip on the edge of the fascia under the gutter is peeling.
Mr Lewis referred to the photograph appearing at HB Vol 2 at page 726 and other photographs in the following page which depict that the paint is peeling. This complaint was lodged on 11 February 2016, approximately 21 months after completion of the Unit.
The paint is peeling in a location which is sheltered from sunlight and the weather. It can be inferred, as the Tribunal does, that the paint is failing either due to inadequate preparation, application or deficiency in the paint itself so that the completed work is faulty or unsatisfactory.
A building remedy order will be issued in respect of this item.

Complaint 18 patio slab thickness

The complaint is that the patio slab is not constructed to the correct thickness.
The contract drawings, as referred to previously, provided for the concrete slab of the patio to be 80 millimetres thick. The ground penetrating radar scan, which neither expert witness professed any expertise to properly interpret, found that the patio had a median thickness of 73.64 millimetres. No additional evidence was tendered in respect of the complaint, with Mr Lewis simply referring to all the evidence relating to Complaint 7 relating to the thickness of the carport slab.
There is no evidence of any failure of the patio slab and there is no reason to believe it will fail given the time which has elapsed without any defect becoming manifest. The Tribunal finds the patio slab is not faulty or unsatisfactory. It has been constructed in a manner which is not proper or proficient because it is not constructed to the correct thickness, but for similar reasons as given above in relation to the similar finding made in respect of the carport slab (Complaint 7), the Tribunal declines to exercise its discretion to grant a building remedy order in respect of this complaint.
Complaint 18 will accordingly be dismissed.

Order

For the reasons given above, the Tribunal will cause an order to issue in the following terms:
1.Leave is granted for the applicant to withdraw Complaint 13 - rear patio lights, and the complaint is withdrawn.
2.The following complaint items are dismissed:
(a)Item 2 storm water drainage
(b)Item 5 patio post sizes
(c)Item 7 garage slab thickness
(d)Item 8 patio waterproof membrane
(e)Part item 11 crack to Gyprock wall in front bedroom
(f)Item 12 laundry washing machine taps
(g)Item 15 ceiling ventilation
(h)Item 16 - water mains gate valves
(i)Item 18 patio slab thickness.
3.On or before 28 November 2016 the respondent must carry out the following remedial work at Unit 1, 293 Hay Street, West Kalgoorlie:
(a)Item 3 garage posts
Complaint: The garage posts are exposed to moisture and are sitting in the dirt below the slab where corrosion is starting to affect structural integrity.
Action required: Take all necessary action in a workmanlike manner to clean the steel between the top of footing and underside of slab and to coat the steel hollow sections up to finished floor level with bituminous paint except where they are already encased in concrete, in which event the coating is to be applied to the underside of the concrete slab.
(b)Item 4 patio posts
Complaint: The patio posts are exposed to moisture and are sitting in the dirt below the slab where corrosion is starting to affect structural integrity.
Action required: Take all necessary action in a workmanlike manner to clean the steel between the top of footing and underside of slab and to coat the steel hollow sections up to finished floor level with bituminous paint except where they are already encased in concrete, in which event the coating is to be applied to the underside of the concrete slab.
(c)Item 6 rust marks on patio posts
Complaint: Patio posts are showing signs of rust marks.
Action required: Take all necessary action in a workmanlike manner to remove rust marks.
(d)Item 10 front entry door
Complaint: The front door is striking the timber upright.
Action required: Take all necessary action in a workmanlike manner to achieve a uniform gap between the side of the door and timber upright so that the door can be opened and closed without contact with the timber upright.
(e)Item 11 cracking in Gyprock walls
Complaint: Vertical crack at the junction of lounge room wall and external wall.
Action required: Take all necessary action in a workmanlike manner to replace or refix fixing tape at junction of lounge room wall and external wall to ensure crack is repaired.
(f)Item 14 kitchen cabinets
Complaint: Holes have been left in the kitchen cabinets.
Action required: Take all necessary action in a workmanlike manner to resurface the single affected shelf or to replace the shelf so as to match the existing cabinet as closely as possible to achieve an aesthetically acceptable result.
(g)Item 17 paint peeling around garage
Complaint: The paint on a timber strip around the garage on the edge of the fascia under the gutter is peeling.
Action required: Properly prepare and repaint in a workmanlike manner the timber strip around the garage on the edge of the fascia under the gutter in the same colour as the existing.
4.Within the same time as provided in order 3 above and upon completion of each item set out therein, make good all damage occasioned by compliance with order 3.

I certify that this and the preceding [157] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR C RAYMOND, SENIOR MEMBER