MARSH OUTDOOR PTY LTD and SCHNURIGER - [2021] WASAT 108

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   MARSH OUTDOOR PTY LTD and SCHNURIGER [2021] WASAT 108
MEMBER:   DR B MCGIVERN, MEMBER
MR R WOODFORDE, SESSIONAL MEMBER

HEARD:   19 MAY 2021
DELIVERED          :   17 AUGUST 2021
FILE NO/S:   CC 1482 of 2020
BETWEEN:   MARSH OUTDOOR PTY LTD
Applicant
AND
BARRY SCHNURIGER
First Respondent
LOUISE SCHNURIGER
Second Respondent

Catchwords:

Building Services (Complaint Resolution and Administration) Act 2011 (WA) - Review of decision of Building Commissioner to issue building remedy order for remedial work - Corrosion of patio roof panels - Whether corrosion the result of moisture or deposits - Non-compliance with manufacturer's installation guide - Whether regulated building service was not carried out in a proper and proficient manner or is faulty or unsatisfactory - Whether decision of Building Commissioner should be confirmed, varied or set aside

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5, s 5(1), s 5(2), s 9, s 11(1), s 17, s 20, s 36, s 37, s 37(1), s 37(1)(a), s 49, s 57(1)
Home Building Contracts Act 1991 (WA), s 3(1), Sch 1, cl 5
Home Building Contracts Regulations 1992 (WA), reg 2A
State Administrative Tribunal Act 2004 (WA), s 17, s 27(1), s 27(2), s 29(1), s 29(3)

Result:

Decision of the Building Commissioner varied

Category: B

Representation:

Counsel:

Applicant	:	In Person
First Respondent	:	In Person
Second Respondent	:	In Person

Solicitors:

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

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

Diploma Construction (WA) Pty Ltd v South Central WA Pty Ltd [2015] WASC 289
Gemmill Homes Pty Ltd and Sanders [2018] WASC 179
Holman and W&D Moffatt Pty Ltd [2016] WASAT 105
Northcott and Realgold Corporation Pty Ltd (CAN 117 580 560) [2020] WASAT 72

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

In broad terms, this dispute concerns a patio constructed by the applicant, Marsh Outdoor Pty Ltd (Marsh), at the respondents' property in 2017. Having accepted and investigated a complaint from the respondents about the patio, on the Building Commissioner (BC) issued a building remedy order (BRO) against Marsh. In its application to the Tribunal, Marsh seeks review of the BRO, arguing that the BC did not adequately consider the evidence or arguments it raised. The respondents continue to assert that the patio is deficient and that a BRO is warranted.

Issues

The following issues are addressed in the reasons that follow:
a)What is the nature and basis of the review to be undertaken by the Tribunal?
b)Is there a proper basis upon which to make a BRO? That is, in building the patio, did Marsh provide a regulated building service that was not carried out in a proper and proficient manner or is faulty or unsatisfactory?
c)If so, what is the appropriate remedy?

Evidence and material facts

A final hearing of the application was held on 19 May 2021.
The Tribunal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] WASAT 108
Decision Date

CaseChat Overview and Summary

In this case, Marsh Outdoor Pty Ltd and Schnuriger are the applicants, and the respondents are not explicitly mentioned in the text. The nature of the dispute is related to a complaint regarding the quality of a regulated building service. The case was heard in the Western Australian State Administrative Tribunal. The legal issues that the court was required to decide include whether the regulated building service had not been carried out in a proper and proficient manner or was faulty or unsatisfactory. This is in accordance with the broad expression discussed in Northcott and Realgold Corporation Pty Ltd and Holman and W&D Moffatt Pty Ltd cases. The court also needed to determine whether the respondents had established that either limb applies to the regulated building service.

The court's reasoning and outcome revolve around the interpretation of the phrase 'has not been carried out in a proper and proficient manner or is faulty or unsatisfactory'. The court found that the phrase incorporates two distinct limbs, and deficiencies in a regulated building service may fall under both limbs in certain circumstances. The court further noted that whether either limb is engaged is to be determined on an objective basis. The court also considered the written materials tendered by the parties, including the opinion of Mr Michael Waterford, a technical manager at BlueScope Steel, regarding the potential causes of corrosion on the patio roofing panels. The court concluded that the onus remains on the complainant to establish that either limb applies to the regulated building service.

There is no specific mention of the final orders in the text provided. However, it can be inferred that the court would have made a decision on the complaint, either in favour of the applicants or the respondents, based on the findings and reasoning outlined above.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

As discussed in Northcott and Realgold Corporation Pty Ltd (CAN 117 580 560) [2020] WASAT 72 (Northcott),[19] the phrase 'has not been carried out in a proper and proficient manner or is faulty or unsatisfactory' is a broad expression[20] which incorporates two distinct limbs, such that:a)the description 'in a proper and proficient' attaches to the manner in which the regulated building service has been carried out;b)the phrase 'is faulty or unsatisfactory' makes it clear that this element attaches to the regulated building service itself … ;c)those limbs are not exclusive, with the result that deficiencies in a regulated building service may in certain circumstances fall under both limbs; andd)whether either limb is engaged is to be determined on an objective basis.[19] Northcott at [44]-[48], [59], [63]. See also Holman and W&D Moffatt Pty Ltd [2016] WASAT 105 at [40] (Holman).[20] See Diploma Construction (WA) Pty Ltd v South Central WA Pty Ltd [2015] WASC 289 (Diploma Construction) at [31]. Because a review of a BRO made by the BC is a hearing de novo, the onus remains on the complainant (in this case, the respondents) to establish that either limb applies to the regulated building service.[21] In addition to the input of Mr Roque,[22] each of the parties has at various times sought and have tendered (to the BC and the Tribunal) written materials containing the opinion of others in connection with the Complaint. Insofar as they are relevant to item 1 of the Complaint,[23] those materials are summarised below.[22] See [16] above.[23] By reason of the matters outlined at [19] to [21] above. The applicant tendered a letter dated 19 March 2021 from Mr Michael Waterford, a technical manager at BlueScope Steel, which includes the following:a)Mr Peter Marsh had advised Mr Waterford that the roofing panels of the patio were experiencing corrosion of the pre-painted steel skin on the ceiling surface;b)Mr Waterford noted that, in his experience, there are several mechanisms by which corrosion can occur on ceiling skins of insulated panel roofs, and that an indication of the relevant mechanism may be provided by the specific areas in which the corrosion has occurred;c)where inundation of an insulated panel has occurred by top-down moisture entry, moisture may be retained at the interface of the insulating foam and the bottom steel skin. In these instances, corrosion will initiate on the foam facing surface of the ceiling skin, prior to presenting on the visible, exterior surface;d)where corrosion is not present on the internal faces, but present on the external faces of the steel skin, it is unlikely that trapped moisture from inundation of the foam cell is the likely cause of corrosion;e)as an alternative mechanism, surfaces that are exposed to the exterior environment but do not receive the washing benefit of natural rainfall may develop an accumulation of potentially corrosive airborne salts and other detritus. Combined with overnight dew cycles or periods of substantial humidity, accumulated salts and detritus can initiate and accelerate corrosion in seemingly isolated areas. Such corrosion is more likely where the painted film is broken or where substantial deformation of the material has occurred (including around penetrations and cut edges);f)corrosion of unwashed surfaces can be prevented or mitigated through regular maintenance, usually only requiring washing with fresh water on a regular basis (typically recommended at six monthly intervals); andg)while photographs of the patio had been provided to him, Mr Waterford had not carried out a physical inspection, and he cautioned that the information provided in the letter was 'of a general nature only and its applicability to the specific circumstances in question may or may not be relevant'.