Macri and Edmunds
[2017] WASAT 14
•16 JANUARY 2017
MACRI and EDMUNDS [2017] WASAT 14
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 14 | |
| BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA) | |||
| Case No: | CC:1321/2016 | 14 DECEMBER 2016 | |
| Coram: | MR P DE VILLIERS (MEMBER) MR J FISHER (SENIOR SESSIONAL MEMBER) | 16/01/17 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is allowed The Building Remedy Orders issued by the Building Commission on 8 August 2016 are set aside A Building Remedy Order is made being the reasonable and necessary cost of remedying the building work | ||
| B | |||
| PDF Version |
| Parties: | CHRISTOPHER MACRI DEANNE MACRI ETHAN GRAHAM EDMUNDS DONNA MARIE EDMUNDS |
Catchwords: | Building Services (Complaint Resolution and Administration) Act 2011 (WA) Review of two complaints to the Building Commission in regard to an outdoor patio Noncompliance with a Building Remedy Order Whether the building service was carried out in 'a proper and proficient manner' Extent of remediation required Whether it is feasible and practicable to remedy building service If a remedy is not feasible and practical should the patio be removed and replaced If a building remedy order is required on what basis should it be made Costs of remedying the building service |
Legislation: | Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5, s 11(1)(c), s 36, s 37, s 38, s 49, s 57, s 57(1)(c) Building Services (Registration) Act 2011 (WA), Pt 3 Building Services (Registration) Regulations 2011 (WA), s 13 State Administrative Tribunal Act 2004 (WA), s 17, s 18(1), s 87, s 87(1) |
Case References: | Hoskins and Daniel Vinci t/as D'Vinci Contracting [2011] WASAT 188 M & P Russo Holdings Pty Ltd and Gray [2012] WASAT 205 |
Orders | 1. The application for review is allowed.,2. Building Remedy Order No 254 of 2016 and Building Remedy Order No 255 of 2016 issued by the Building Commission on 8 August 2016 are set aside and instead a Building Remedy Order is made in the following terms:,On or before 28 February 2017, the applicants (Christopher Macri and Deanne Macri) must pay the respondents (Ethan Graham Edmunds and Donna Marie Edmunds) the sum of $43,374.62, inclusive of GST, being the reasonable and necessary cost of remedying the failure to carry out the building service in respect of a patio constructed at 8 Mackenzie Place, Australind in a proper and proficient manner. |
Summary | In August 2016, the Building Commission issued two Building Remedy Orders to Christopher Macri and Deanne Macri in respect of a patio constructed for Ethan Graham Edmunds and Donna Marie Edmunds at 8 Mackenzie Place, Australind by Southern City Sheds of Bunbury.,On 10 August 2016, Mr Macri made application to the Tribunal seeking a review of these orders.,The questions which arose for the Tribunal in the review comprised the following:,1) Whether the building service was carried out in 'a proper and proficient manner'?,2) If not, whether it is feasible and practicable to repair the building service; that is, to ensure any faulty building work on the patio can be remedied?,3) If repair is not feasible and practical should the patio be removed and replaced?,4) If so, what amount should be specified in the building order as required to be paid to remedy the building work?,On all of the evidence before it the Tribunal found that in regard to the first question the building service was not carried out in 'a proper and proficient manner'.,For a number of reasons the Tribunal found that it was not feasible and practicable to repair the building service and the Tribunal concluded, with some reluctance, that the only satisfactory remedy was to demolish the existing structure and replace the patio. These reasons included the fact that the repairs proposed did not address many of the items requiring remediation, and neither a definitive schedule of remedial works nor a definitive cost for the remediation was provided by the applicants. In addition, the remedial works proposed would not correct all of the original errors in setting out the structure and, more importantly, was unlikely to resolve the secondary issue of leaking. Finally, the proposed remediation raised difficulties in terms of liability and warranty.,Having reviewed the quotations for the demolition and replacement provided by the parties the Tribunal found that the costs submitted by the respondents are, subject to two minor caveats, the appropriate costs to compensate them for the failure to carry out the building service in a proper and proficient manner.,The veracity of the submissions of the applicants in this review, Mr Macri, the relevant registered building service provider, was compromised by the fact that he had never inspected either the site or the constructed patio and had failed to respond in a proactive manner to what were, on the evidence provided to the Tribunal, the legitimate concerns of the respondents.,For these reasons the Tribunal made a Building Remedy Order requiring that the applicants pay the respondents a sum being the reasonable and necessary cost of remedying the failure to carry out the building service in respect of the patio constructed at 8 Mackenzie Place, Australind in a proper and proficient manner. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA) CITATION : MACRI and EDMUNDS [2017] WASAT 14 MEMBER : MR P DE VILLIERS (MEMBER)
- MR J FISHER (SENIOR SESSIONAL MEMBER)
- DEANNE MACRI
Applicants
AND
ETHAN GRAHAM EDMUNDS
DONNA MARIE EDMUNDS
Respondents
Catchwords:
Building Services (Complaint Resolution and Administration) Act 2011 (WA) Review of two complaints to the Building Commission in regard to an outdoor patio Noncompliance with a Building Remedy Order Whether the building service was carried out in 'a proper and proficient manner' Extent of remediation required Whether it is feasible and practicable to remedy building service If a remedy is not feasible and practical should the patio be removed and replaced If a building remedy order is required on what basis should it be made Costs of remedying the building service
Legislation:
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5, s 11(1)(c), s 36, s 37, s 38, s 49, s 57, s 57(1)(c)
Building Services (Registration) Act 2011 (WA), Pt 3
Building Services (Registration) Regulations 2011 (WA), s 13
State Administrative Tribunal Act 2004 (WA), s 17, s 18(1), s 87, s 87(1)
Result:
The application for review is allowed
The Building Remedy Orders issued by the Building Commission on 8 August 2016 are set aside
A Building Remedy Order is made being the reasonable and necessary cost of remedying the building work
Summary of Tribunal's decision:
In August 2016, the Building Commission issued two Building Remedy Orders to Christopher Macri and Deanne Macri in respect of a patio constructed for Ethan Graham Edmunds and Donna Marie Edmunds at 8 Mackenzie Place, Australind by Southern City Sheds of Bunbury.
On 10 August 2016, Mr Macri made application to the Tribunal seeking a review of these orders.
The questions which arose for the Tribunal in the review comprised the following:
- 1) Whether the building service was carried out in 'a proper and proficient manner'?
2) If not, whether it is feasible and practicable to repair the building service; that is, to ensure any faulty building work on the patio can be remedied?
3) If repair is not feasible and practical should the patio be removed and replaced?
4) If so, what amount should be specified in the building order as required to be paid to remedy the building work?
For a number of reasons the Tribunal found that it was not feasible and practicable to repair the building service and the Tribunal concluded, with some reluctance, that the only satisfactory remedy was to demolish the existing structure and replace the patio. These reasons included the fact that the repairs proposed did not address many of the items requiring remediation, and neither a definitive schedule of remedial works nor a definitive cost for the remediation was provided by the applicants. In addition, the remedial works proposed would not correct all of the original errors in setting out the structure and, more importantly, was unlikely to resolve the secondary issue of leaking. Finally, the proposed remediation raised difficulties in terms of liability and warranty.
Having reviewed the quotations for the demolition and replacement provided by the parties the Tribunal found that the costs submitted by the respondents are, subject to two minor caveats, the appropriate costs to compensate them for the failure to carry out the building service in a proper and proficient manner.
The veracity of the submissions of the applicants in this review, Mr Macri, the relevant registered building service provider, was compromised by the fact that he had never inspected either the site or the constructed patio and had failed to respond in a proactive manner to what were, on the evidence provided to the Tribunal, the legitimate concerns of the respondents.
For these reasons the Tribunal made a Building Remedy Order requiring that the applicants pay the respondents a sum being the reasonable and necessary cost of remedying the failure to carry out the building service in respect of the patio constructed at 8 Mackenzie Place, Australind in a proper and proficient manner.
Category: B
Representation:
Counsel:
Applicants : N/A
Respondents : N/A
Solicitors:
Applicants : N/A
Respondents : N/A
Case(s) referred to in decision(s):
Hoskins and Daniel Vinci t/as D'Vinci Contracting [2011] WASAT 188
M & P Russo Holdings Pty Ltd and Gray [2012] WASAT 205
Introduction
1 On 8 August 2016, the Building Commission issued two Building Remedy Orders in accordance with the provisions of s 11(1)(c) and s 37 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA)(BSCRA Act).
2 These were served on Christopher Macri and Deanne Macri (applicants) in regard to a building service at 8 Mackenzie Place, Australind.
3 These orders were in respect of a patio constructed for Ethan Graham Edmunds and Donna Marie Edmunds (respondents) by Southern City Sheds of Bunbury.
4 Following the receipt of two complaints, and investigations by the Building Commission, the Commission determined that in regard to the first complaint (Building Remedy Order No 255 of 2016 (BRO 255)) the respondents (in this review the applicants), were to pay the amount of $2,463.57 to the complainants (in this review the respondents), 'being the reasonable costs of remedying the building service at 8 Mackenzie Place Australind'.
5 In regard to the second complaint the Commission determined that the building service was 'not carried out in a proper and proficient manner or was faulty or unsatisfactory' and issued Building Remedy Order No 254 of 2016 (BRO 254). This order set out a series of actions to be carried out to remedy the 'building service' and the payment of an amount of $681.75, being the cost of the Houspect Building Inspection Report.
6 On 10 August 2016, Mr Macri made application to the Tribunal under s 57(1)(c) of the BSCRA Act seeking a review of the orders given by the Building Commission.
7 At the directions hearing on 13 September 2016 it was agreed that:
The Tribunal notes that the parties are in agreement that the Building Commission orders the subject of the review application ought to be revoked and replaced with a monetary order reflecting the reasonable cost of demolishing the patio and rebuilding it.
8 However at a further directions hearing held on 14 October 2016 that order was revoked and substituted with the following:
… [f]or the absence of doubt, the issues for the hearing are now both workmanship and remediation cost.
The statutory regime and the Tribunal's discretion
Section 5 of the BSCRA Act provides:
5. 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.
…
10 Having assessed the two complaints received in regard to the patio the Building Commissioner issued two Building Remedy Orders under s 37 of the BSCRA Act.
11 Section 37 reads as follows:
37. Building remedy order by Building Commissioner
(1) Subject to regulations made under section 11(5), if the Building Commissioner is satisfied that a regulated building service that is the subject of a building service complaint has not been carried out in a proper and proficient manner or is faulty or unsatisfactory, the Building Commissioner may deal with the building service complaint by making a building remedy order.
…
36. Building remedy order
(1) A building remedy order consists of one of the following
(a) an order that a person who carried out a regulated building service remedy the building service as specified in the order;
(b) an order that a person who carried out a regulated building service pay to an aggrieved person such costs of remedying the building service as the Building Commissioner or State Administrative Tribunal, as the case requires, considers reasonable and specifies in the order;
(c) an order that a person who carried out a regulated building service pay to an aggrieved person a sum of money specified in the order to compensate the aggrieved person for the failure to carry out the building service in a proper and proficient manner or for faulty or unsatisfactory building work.
- (2) A building remedy order may require that the order be complied with within a time specified in the order.
…
57. Review by State Administrative Tribunal of orders given by Building Commissioner
(1) A person aggrieved by
(a) an interim order; or
(b) an order under section 33 to vary an interim order; or
(c) a building remedy order made by the Building Commissioner; or
(d) a HBWC remedy order made by the Building Commissioner; or
(e) an order made by the Building Commissioner under section 49,
may apply to the State Administrative Tribunal for a review of the order.
…
Section 18(1) and s 27 of the SAT Act empowers the Tribunal to review the Commissioner's building remedy order de novo, and the Tribunal may receive fresh evidence when reviewing the Commissioner's order. The Tribunal stands in the shoes of the original decisionmaker, but with the benefit of hearing fresh evidence and having the evidence tested in the course of a hearing. The Tribunal therefore has all the powers conferred upon the Commissioner by the provision of the BSCRA Act and by s 29 of the SAT Act, including, but not limited to, s 29(3) of the SAT Act.
15 In applying s 18(1) of the SAT Act, s 38 of the BSCRA Act sets out powers for the Tribunal in dealing with an application under s 57(1)(c):
38. 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.
…
49. Costs and expenses
(1) Subject to this section, the Building Commissioner or the State Administrative Tribunal may make such orders for costs as they think fit in relation to proceedings arising from a building service complaint or a HBWC complaint.
…
(5) In determining costs to be paid the Building Commissioner or State Administrative Tribunal may take into account any refusal or failure by a party to comply with an order or direction of the Building Commissioner or Tribunal.
…
17 Given the complexity of the matters under review, the extensive time the matters were under review by the Building Commission, and the extent of documentation before the Tribunal, it is appropriate to briefly set out the chronology of events by way of background to the review.
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Requested a Building Inspection Report from Mr and Mrs Edmunds in regard to the second complaint. |
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The issues
18 The questions which arise for the Tribunal in this review comprise the following:
1) Whether the building service was carried out in 'a proper and proficient manner'?
2) If not, whether it is feasible and practicable to repair the building service; that is, to ensure any faulty building work on the patio can be remedied?
3) If repair is not feasible and practical should the patio be removed and replaced?
4) If so, what amount should be specified in the building order as required to be paid to remedy the building work?
19 The Tribunal will deal with each of the questions in turn.
Whether the building service was carried out in 'a proper and proficient manner'?
20 The applicants relied on the expert evidence of Mr Gary Fitzgerald of Tecon Australia whose building inspection report of 5 October 2016 was in evidence.
21 Mr Fitzgerald's report initially addressed the following three issues which pertain to BRO 254:
• Complaint 1 - East horizontal beam beam bowed;
• Complaint 2 - Two vertical east side beam/post - beam bowed out; and
• Complaint 3 - Whole patio out of square.
22 On these matters Mr Fitzgerald argued that '[n]otwithstanding the above items the structure was noted as being in a structurally sound state and the variations are considered to have no impact on either the presentation or the Performance of the Structure'. Mr Fitzgerald did not provide any details on the extent of degree of bowing of either the beams or columns. He suggested this could have been caused by a loading placed on the structure.
23 Following this, the report addressed the additional items cited in BRO 254 (with the exception of the extra downpipe which the Building Commission determined was not required).
24 Mr Fitzgerald's conclusion in terms of the matters he addressed was that '[t]he structure appears to be sound and suitable for the purpose it was designed for'. In his report he drew on the Victorian Building Commission document, Guide to Standards and Tolerances 2015 (Guide), noting that there was no equivalent document published for Western Australia. The Tribunal accepts that it is reasonable to use the Guide within Western Australia.
25 The respondents relied on the expert evidence of Mr Peter Cook the author of the Houspect report based on his inspection of 10 February 2016 which was in evidence.
26 Mr Cook's evidence was that on measuring the diagonals of the inside of the patio perimeter beams there was a difference in length of 80 millimetres in approximately 10.6 metres between the two diagonals, with the result that the frame was out of square. In addition, the two intermediate posts supporting the outside beam were 25 millimetres and 30 millimetres out of plumb over 2.4 metres and one of these posts was 10 millimetres higher than the other three posts.
27 In Chapter 4 'Framing' the Guide sets out, at 4.2, standards for verticality of plumbness of steel and timber frames and exposed posts. This establishes that they are defective if they deviate from the vertical by more than 5 millimetres over a 1.8 metre height.
28 On the uncontested measurements provided by Mr Cook the deviation of the intermediate posts exceeds the Victorian standard by three times.
29 On this basis, the Tribunal prefers the evidence of Mr Cook over that of Mr Fitzgerald and concludes that the structure is defective.
30 The Tribunal was, by agreement between the parties, also shown a video of the water leaks during a rain event. This indicated leaking though the ridge cap, between the roof sheets and substantial leakage from the box gutter between the patio and the house.
31 The Tribunal also had in evidence photographs of the scratches on the roof panels and issues associated with the Perspex panels at each end of the patio.
32 In terms of the likely causes of the misalignment of the beams and posts Mr Fitzgerald noted an affidavit from Mr Dellaca, who installed the patio, that the owners requested that the southernmost post be positioned as close as possible to the existing retaining wall and it was 'the design/instruction of the owner to relocate the post thereby causing the structure to be out of square'. In fact Mr Dellaca's affidavit states the moving of the column 'may have impacted slightly on the squareness of the building'.
33 However, at the hearing Mr and Mrs Edmunds denied giving such an instruction and Mr Dellaca was not called to give evidence. Whatever the case, in the Tribunal's view, if a request from a customer is likely to in any way compromise a 'building service' it should not be undertaken without a full discussion of the consequences and documented agreement between the parties.
34 As to Mr Fitzgerald's view that the bowed beams and columns may have been caused by a 'loading placed on the structure' and the lack of 'middle ties' the structure is designed such that the intermediate roof beams are designed to resist such structural forces and there is no evidence of excessive loading having being placed on the structure.
35 On all of the evidence before it the Tribunal finds that in regard to the first question, the building service was not carried out in 'a proper and proficient manner'.
Is it feasible and practicable to repair the building service?
36 At the hearing while Mr Macri accepted 'there are some issues on that patio' (T:1:02:01 pm; 14.12.16) he 'disputes the need to replace the entire patio' (T:1:02:10 pm; 14.12.16).
37 Mr Macri was therefore strongly opposed to pulling down what he considered a perfectly adequate patio. In his view the evidence suggested the patio was sound and while he was not willing to undertake any work on the patio he provided in evidence a quotation from RJ and JL Harnett dated 10 November 2016 for $2,057 (including GST) to remediate the structure.
38 These repairs set out in the quotation include the following:
• Replace infills one end only.
• To replace barge one end only.
• To replace one roof panel.
• Realign roof beam and ridge.
39 It should be noted that this quotation does not address the items included in the original BRO 142.
40 In his evidence Mr Harnett advised that the quotation provided was the 'list of items he was told the problems were to fix' (T:1:37:40 pm; 14.12.16) and it was likely this request was made by Mr Macri. (T:1:45:45 pm; 14.12.16).
41 At the hearing, and in response to a question from the Tribunal as to whether the quotation was a definitive quotation or in effect a schedule of rates, Mr Macri advised that the quotation was 'more to get a generic price for a few different criteria' and he agreed the 'quotation' was a schedule of rates (T:1:03:53 pm; 14.12.16).
42 Mr Macri also submitted that 'the hardest thing for anyone to do is judge how much needs to be replaced and what components need to be replaced' (T:1.02.22 pm; 14.12.16).
43 In the Tribunal's view, the quotation provided by Mr Harnett is not in any way adequate to remediate the patio. It does not constitute in any sense a definitive quotation but rather a schedule of rates and it does not address all of the items requiring remediation.
44 This view is based on the recommended action/remedy put forward by Mr Cook in his report which, the Tribunal accepts, set out a far more extensive schedule of works as follows:
• Plumb intermediate posts and straighten and square patio structure.
• Replace three roof panels.
• Ensure that all panels are sealed with Stratco foam inserts at back of channel.
• Fix down roof sheeting joins.
• Paint out scratched roof sheeting, hip capping and ridge capping on house and patio.
• Remove infill panels and clean bottom cord. Refit end panels, fix trims to cover all edges and refit barge flashings.
• Cut and fit plumb cuts to barge flashing and inset drain holes in bottom edge of trims.
45 However, the more substantive question is whether the suggested remedial works would resolve the issues identified with the patio. On the evidence provided it is clear that that the structure contains errors in setting out which have resulted in problems with both the horizontal and vertical alignment. It is difficult not to infer that the secondary problems associated with the leaking of the roof are not in some way an outcome of these initial errors.
46 The veracity of such a view is strengthened by the evidence that attempts have been made to remedy the problems of the patio without success. Mr Macri's email of 22 September 2015 provides evidence that '[o]ur erector left the Edmunds job after rectifying previous complaints'.
47 Furthermore, Mr Harnett's potential repair methodologies, while they might resolve the verticality of the columns, would not address the fact that the structure is out of square. This introduces considerable doubt as to whether this solution would resolve the secondary issues of the roof leaks.
48 In addition, the Tribunal is also of the view that complex issues of liability could arise in terms of remedial works by a third party. An email from Mrs Edmunds to the Building Commission dated 2 October 2015 identifies difficulties in getting quotes for remedial work based on concerns in regard to liability and warranty. Mr and Mrs Edmunds approached a number of identified companies without success and correspondence is in evidence from CPR Outdoor Centre advising that they were not going to be able to help Mr and Mrs Edmunds with their patio because there were too many grey areas.
49 For these reasons, the Tribunal finds that it is not feasible and practicable to remedy the building service and the correct and preferable outcome would not be achieved by the proposed partial remedy.
Should the patio be removed and replaced?
50 On the basis of the evidence before it the Tribunal has concluded, with some reluctance, that the only satisfactory remedy is to demolish the existing structure and replace the patio for the following reasons:
• Mr Harnett's quote does not address many of the items which the evidence of Mr Cook identifies as requiring remediation.
• Mr Harnett's quote, in fact, constitutes a schedule of rates and Mr Macri has not provided either a definitive schedule of remedial works or a definitive cost for the remediation required.
• The Tribunal finds that the proposed remedial works will not correct all of the original errors in setting out the structure and, more importantly, is not satisfied any remediation will resolve the secondary issues of leaking.
• The proposed remediation raises difficulties for the Mr and Mrs Edmunds in terms of liability and warranty.
What amount should be specified in the building order to remedy the building work?
51 At the hearing, Mr Macri confirmed that he is not willing to undertake any work on Mr and Mrs Edmunds' patio. In this context there is no alternative to the BRO specifying an amount to be paid by the applicants to the respondents and the issue goes to the basis on which the quantum should be established.
52 In regard to replacement Mr Macri relies on the quotation provided by Mr Harnett which includes 'to remove an existing patio and replace it with new patio', does not include any concrete work, and suggests reusing the existing light fittings. The quotation for this work is $22,611.60 (inclusive of GST).
53 In providing evidence at the hearing, Mr Harnett advised that he intended to 'leave the existing columns in the concrete' (T:1:40:25 pm; 14.12.16) and 'level them up and tie them back to the new structure' (T:1:41:00 pm; 14.12.16). In that way he would 'not have to disturb any concrete' (T:1:41:14 pm; 14.12.16) and that he would 'lay matting out of some description on top of it' (T:1:41:41 pm; 14.12.16).
54 In responding to a question from Mr Macri where he suggested 'if you had to replace the columns you could dig down and pull the footings out and columns out of the concrete' (T:1:43:47 pm; 14.12.16), Mr Harnett said 'you could do that' (T:1:44:01 pm; 14.12.16).
55 A substantive issue did, however, arise in terms of Mr Harnett's quotation. Mr Harnett is not a registered builder under the provisions of Pt 3 of the Building Services (Registration) Act 2011 (WA). As such, under the provisions of s 13 of the Building Services (Registration) Regulations 2011 (WA) he is not able to undertake 'builder work' above a value of $20,000.
56 In the context that Mr Harnett's quote does not involve the replacement of the existing columns, there is considerable uncertainty as to whether the slab could be effectively protected during the replacement, and the fact that Mr Harnett is not able, on his own account, to undertake the work and no appropriate registered builder was identified to supervise the work the Tribunal finds that the quotation provided by Mr Harnett does not establish a viable basis 'to compensate the aggrieved person for the failure to carry out the building service in a proper and proficient manner or for faulty or unsatisfactory building work' (s 36 BSCRA Act).
57 In replacing the structure there was no definitive evidence that the structure could be made square without replacing the columns and, in addition, the evidence of Mr Cook was that one of the intermediate posts was 10 millimetres higher than the other three. For these reasons, the Tribunal finds that any replacement should include the replacement of the columns. And in this regard the Tribunal is not convinced by the suggestion of Mr Harnett that it may be possible to remove the columns and dig out the footing without disturbing the concrete slab.
58 Both parties provided cost estimates for the replacement of the slab. Mr Macri relied on a quotation from Robin's Concrete dated 19 October 2016 for $8,270 (inclusive of GST). Mr and Mrs Edmunds obtained a quotation from Soulay Contracting, the company which constructed the existing slab, dated 27 September 2016 for $11,185.90 (inclusive of GST).
59 The evidence in the hearing, supported by photographs in evidence, was that the slab was a specialised polished concrete slab. In this regard the Tribunal was not convinced that the quotation from Robin's Concrete provided like for like and on this basis found that the quotation from Soulay Contracting was preferred in ensuring adequate compensation for the respondents.
60 In regard to cost of replacing the patio Mr and Mrs Edmunds provided three quotations from Cape Shades dated 1 October 2016 as follows:
• Supply labour to dismantle and completely remove existing Cooldek Gable Patio only - $3,553 (inc GST).
• Supply only of a 9.5 metre by 5.15 metre Stratco Outback Cooldek Gable Patio, with LED downlights x 6 - $25,217.72, inclusive of council application costs.
• Supply labour to erect 9.5 metre by 5.15 metre Stratco Outback Cooldek Gable Patio - $5,918 (inc GST).
61 Concerned over the cost estimate the Tribunal took evidence from Mr Ermin Veurink of Cape Shades as to the basis for the quotations. Cape Shades is a Stratco distributor in Busselton. Mr Veurink addressed a number of queries raised by the Tribunal and advised that he had included the sum of $2,500 in the quotation for the downlights as they may have been subject to water ingress.
62 In regard to the downlights there was no evidence that the existing lights had been subject to water ingress and the Tribunal finds on that basis that the downlights should not be included in any building remedy order.
63 The Tribunal also noted that BRO 254 included a provision that '[t]he Respondent' (in this review the applicants) 'is to pay the Complainant' (in this review the respondents) 'the amount of $681.75 being the cost of the Houspect Building Inspection Report'.
64 In terms of the costs of the parties in a proceeding, s 87(1) of the SAT Act applies.
65 Under this provision the general position is that each party bear its own costs, although there is power to award costs under s 87 of the SAT Act. This discretion is, in general terms, utilised where a party has behaved unreasonably in the conduct of its case so as to lead the other party to incur unnecessary costs.
66 In Hoskins and Daniel Vinci t/as D'Vinci Contracting [2011] WASAT 188 at [14], the Tribunal determined that s 49 of the BSCRA Act was a provision that effectively removed the starting position that there should be no award of costs provided by s 87 of the SAT Act. At [19] the Tribunal found:
Accordingly, s 49 of the BS(CRA) Act should not be understood as providing that costs will generally follow the result. It grants the Tribunal the broadest possible discretion in relation to costs and should be regarded as being entirely neutral in effect, but should be applied in a manner which is consistent with and reinforces the objectives and procedures of the Tribunal. In the exercise of that discretion all of the considerations identified above in relation to the exercise of the discretion under s 87 of the SAT Act remain relevant. Those considerations are however not exhaustive and any other factors will be relevant which point to the justice of the case requiring an award of costs.
67 No effective case was made as to why the Tribunal should in the circumstances of this review vary the general practice and the Tribunal finds that the cost of the Houspect Building Inspection Report should not be included in any building remedy order.
68 Given all of the above, the Tribunal finds that the costs submitted by Mr and Mrs Edmunds are, subject to the caveats noted, the appropriate costs to compensate Mr and Mrs Edmunds for the failure to carry out the building service in a proper and proficient manner.
69 These costs are as follows:
| $11,185.90 |
| $3,553.00 |
| $22,717.72 |
| $5,918.00 |
| $43,374.62 |
70 Given that the applicants have refused to undertake the remedial work the Tribunal is satisfied that it is appropriate in the circumstances that the respondents receive compensation for what it would cost them to carry out the work.
Conclusion
71 This review involved an application by Mr and Mrs Macri in respect of two Building Remedy Orders issued by the Building Commission in August 2016.
72 These orders were made in respect of a patio constructed at 8 Mackenzie Place, Australind by Southern City Sheds. The first order required the payment of $2,463.57, being the reasonable costs of remedying the building service. The second order required a number of remedial works to rectify the building service and the payment of $681.75, being the cost of a building inspection report.
73 Given that the applicants had confirmed that they were unwilling to undertake any remedial works the substantive issue for the Tribunal was in deciding the amount to be specified in the building remedy order to remedy the building work.
74 In view of the evidence before it the Tribunal reluctantly came to the view that the correct and preferable decision was for the structure to be demolished and replaced. In regard to the quantum of cost the Tribunal generally preferred the evidence of the respondents.
75 In establishing the veracity of the submissions of the applicants in this review the Tribunal finds that Mr Macri, the relevant registered building service provider, was compromised by the fact that he had never inspected either the site or the constructed patio. In a situation where concerns arose over the patio late in 2014 or early 2015, attempts had been made to 'rectify the previous complaints' (Macri email dated 22 September 2015), two Building Remedy Orders had been issued by the Building Commission and the parties had time to prepare for a hearing the Tribunal finds this situation remarkable.
Orders
The Tribunal will accordingly cause orders to issue as follows:
1. The application for review is allowed.
2. Building Remedy Order No 254 of 2016 and Building Remedy Order No 255 of 2016 issued by the Building Commission on 8 August 2016 are set aside and instead a Building Remedy Order is made in the following terms:
On or before 28 February 2017, the applicants (Christopher Macri and Deanne Macri) must pay the respondents (Ethan Graham Edmunds and Donna Marie Edmunds) the sum of $43,374.62, inclusive of GST, being the reasonable and necessary cost of remedying the failure to carry out the building service in respect of a patio constructed at 8 Mackenzie Place, Australind in a proper and proficient manner.
I certify that this and the preceding [75] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P DE VILLIERS, MEMBER
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