MATHEW and RIVIERA HOMES (WA) PTY LTD
[2025] WASAT 96
•17 SEPTEMBER 2025
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION: MATHEW and RIVIERA HOMES (WA) PTY LTD [2025] WASAT 96
MEMBER: MR D AITKEN, SENIOR MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 17 SEPTEMBER 2025
FILE NO/S: CC 718 of 2024
BETWEEN: JAMES MATHEW
First Applicant
TINTA JACOB KUNNAPPALLIL
Second Applicant
AND
RIVIERA HOMES (WA) PTY LTD
Respondent
Catchwords:
Application for leave to review building remedy order made by original Tribunal - Criteria for grant of leave to review - Whether the decision of the original Tribunal was wrong or attended with sufficient doubt - Whether the applicants would suffer a substantial injustice if leave to review not given
Legislation:
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5(1), s 11(1)(d), s 38, s 43, s 49, s 58, s 58(2), s 58(5)
State Administrative Tribunal Act 2004 (WA), s 60(2), s 87
Result:
Leave refused and application for review dismissed
Category: B
Representation:
Counsel:
| First Applicant | : | N/A |
| Second Applicant | : | N/A |
| Respondent | : | N/A |
Solicitors:
| First Applicant | : | N/A |
| Second Applicant | : | N/A |
| Respondent | : | Palmos Legal |
Case(s) referred to in decision(s):
Filimon and Rimmer [2013] WASAT 13
Jetpoint Nominees Pty Ltd and Lee [2021] WASAT 10
Myran Holdings Pty Ltd and Bombak [2013] WASAT 20
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The applicants, Mr James Mathew and Ms Tinta Jacob Kunnappallil made a building service complaint (the complaint) to the Building Commissioner against the respondent under s 5(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) concerning building work carried out by the respondent in the construction of a residential dwelling in Morley.
The Building Commissioner referred the complaint to the Tribunal under s 11(1)(d) of the BSCRA Act, which became Matter Number CC 863 of 2022 (original proceeding).
There were three items of complaint. The first complaint item was that the plaster through the entire dwelling was defective, with an excessive pH level, inadequate thickness and air entraining agents in the set coat. The second complaint item was that there was excessive cracking in the laundry ceiling and the third complaint item was that there was a water leak in the master bedroom.
A final hearing in the original proceeding was held on 26 August 2024 (final hearing) before Member De Villiers and Senior Sessional Member Affleck (original Tribunal).
During the final hearing the parties agreed to the settlement of complaint items 2 and 3 by the respondent agreeing to pay to the applicants the amount of $4,102.56 for complaint item 2 and the amount of $975.98 for complaint item 3. At the conclusion of the final hearing the original Tribunal made an order, by consent of the parties, for the respondent to pay those amounts to the applicants and reserved the decision regarding the first complaint item (plaster complaint).
The original Tribunal delivered its decision regarding the plaster complaint on 11 September 2024, which was to make a building remedy order that the respondent pay the amount of $13,900.43 to the applicants by 1 October 2024 (plaster complaint order). The reasons for that decision were published on that date in Mathew and Riviera Homes (WA) Pty Ltd [2024] WASAT 98 (Reasons for Decision).
The applicants have made an application to the Tribunal under s 58 of the BSCRA Act for an 'internal review' of the original Tribunal's decision to make the plaster complaint order (review application).
Section 58(5) of the BSCRA Act provides that a review application cannot be made unless the Tribunal gives leave for review (leave application).
At a directions hearing on 22 November 2024, Member Benter made orders for the applicants to file submissions in support of the leave application and for the respondent to file submissions in opposition to the leave application. Those submissions were filed.
At a directions hearing on 25 March 2025, I made orders allowing the applicants to file amended submissions in support of the leave application and for the respondent to file submissions in response to the applicants' amended submissions. Those submissions were filed.
At a directions hearing on 17 June 2025, I made an order that the leave application be determined on the following documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act):
(a)The transcript of the final hearing;
(b)The Reasons for Decision;
(c)The bundle of documents taken into evidence as Exhibit A during the final hearing (Exhibit A);
(d)The applicants' submissions dated 24 April 2025 (a total of 10 pages - folio 19); and
(e)The respondent's submissions dated 12 May 2025, which include the respondent's submissions dated 19 January 2025 (a total of 12 pages - folio 21).
Section 58(5) of the BSCRA Act requires that the Tribunal for the determination of a leave application to be constituted by a judicial member or a legally qualified senior member. I am a legally qualified senior member.
For the reasons which follow, I have decided not to give leave to the applicants for review of the plaster complaint order and, accordingly, I will dismiss the review application.
The criteria for the grant of leave to review
The principles concerning whether leave should be granted, under s 58(5) of the BSCRA Act, to apply for an internal review, under s 58(2) of the BSCRA Act, of an order made by the Tribunal under s 38 or s 43 of the BSCRA Act are well established.[1]
[1] Jetpoint Nominees Pty Ltd and Lee [2021] WASAT 10 at [38].
The main considerations are as stated by the Tribunal in Myran Holdings Pty Ltd and Bombak [2013] WASAT 20 (Myran Holdings) at [8], based on the discussion in Filimon and Rimmer [2013] WASAT 13 (Filimon). However, the range of considerations is not closed, and other matters may be relevant in a particular case.
In Myran Holdings at [8] the Tribunal stated:
The following principles can be gleaned from the discussion of the applicable criteria for the grant of leave to review under s 58(2) of the [BSCRA] Act as discussed in [Filimon]:
1)It is necessary to show that the decision of the original Tribunal was wrong or attended with sufficient doubt.
2)It must be shown that if leave were not to be granted, the applicant would suffer a substantial injustice.
3)It will normally not be sufficient that the decision appealed from is apparently wrong or attended with doubt. Something more will need to be shown, such as that there is a significant question of law to be considered, or some other feature, which requires the consideration of the Tribunal to avoid a substantial injustice of (sic) leave were not to be granted.
4)The decisions of the original Tribunal are not to be read minutely and finely with an eye keenly attuned to the perception of error.
5)A broad view should be taken of all the material before the original Tribunal, and this Tribunal should be slow to grant leave to review or to allow reviews except in cases where, clearly, there is no discernible basis for the decision or, for example, where fundamental rules of natural justice have been breached.
6)Leave may be granted in respect of only some and not other grounds of the proposed review.
7)Having regard to the objects of the Tribunal, and because any review is by way of a hearing de novo, there is all the more reason to be particularly discerning about whether sufficient doubt exists to open the possibility of leave being granted.
8)In considering challenges to the weight of evidence, regard must be given to the expertise of the members of the original Tribunal.
The applicants' grounds in support of the leave application
The applicants rely on three grounds in support of the leave application:
(1)The inadequacy of the amount of the plaster complaint order (Ground 1).
(2)The original Tribunal erred in concluding that HB161-2005 is no longer valid (Ground 2).
(3)The original Tribunal's failure to ensure expert evidence compliance and systemic issues (Ground 3).
I will deal with each of these grounds in turn.
Ground 1 (that the amount of the plaster complaint order was inadequate)
Applicants' submissions
The applicants submit that 'the original Tribunal erred in its assurance of natural justice by disregarding the quote from Midnight Construction, which was specifically tailored for Option A, and instead accepting [sic] a quote from Mr Chris [Jones] that was entirely unrelated to Option A'.
The applicants contend that the Tribunal incorrectly dismissed Midnight Construction's quotation on the basis that it was unsigned and undated. The applicants say that the quotation is dated 2 August 2023 with full contact details, including the ABN and email address. The applicants further say that it is common for digital quotations to be unsigned and that no such requirement was applied to Mr Chris [Jones']' quotation, which was also unsigned but was accepted by the Tribunal.
The applicants say that they 'did not invite Midnight Construction to the [final] hearing, because they are a contractor and not ready for come in [sic] SAT. However, they were the only party who provided a 'proper quote under Option A'.
The applicants also submit that the original Tribunal 'did not consider the homeowner's right to receive a quality home that complies with construction guidelines'. The applicants further submit that 'A piecemeal approach - repairing only select areas while leaving other faulty sections untouched - is not consistent with consumer expectations for a new home'.
The applicants also contend that '[n]either the [original] Tribunal nor the respondent raised concerns regarding the validity of the Midnight Construction quotation until the final hearing' and that '[d]isputing the quote at such a late stage is procedurally unfair and deprived the homeowner of the opportunity to respond appropriately'.
Finally, the applicants contend that on several occasions during the final hearing, Member De Villiers interrupted the applicant Mr Mathew and pressured him to stop asking his questions 'in detail', without considering his inexperience with the Tribunal 'system', which created difficulty in presenting the applicants' case effectively.
Respondent's submissions
The respondent submits that the applicants bore the onus of proving the amount which the original Tribunal should order the respondent to pay to the applicants regarding the plaster complaint and they failed to adduce evidence in support of their argument that a greater amount was justified.
The respondent further submits that, critically, the applicants' own expert at the final hearing, Mr James Lawrence, supported the finding that $13,900.43 was the appropriate amount.
Consideration
At the final hearing four expert witnesses gave evidence. There were two building experts; Mr James Lawrence of Inspect My Home (applicants' expert witness) and Mr Chris Jones of Estimating Service Australia (respondent's expert witness). There were two scientific experts: Mr Rick Hughes of Microanalysis Australia (applicants' expert witness) and Dr Armand Zurhaar of Zedcon Scientific Services (respondent's expert witness).
Reports by those expert witnesses had been filed and there had been conferences of those experts resulting in joint statements by them which had also been filed. All those reports and statements are in Exhibit A.
The Reasons for Decision at [5], [9] - [15], [18] - [21], [38] and [43] - [51] are as follows:
5Complaint 1 relates to what was generally described at the commencement of the proceeding as defective plaster, excessive pH levels, inadequate thickness of the set coat, and air entraining agents in the float coat. The complaint is not about the adhesion of the paint, but about the defectiveness of the set coat. The hardness of the set coat is not to the required standard which results in the surface being soft, being able to be pulled way by Scotch Magic Tape no. 810 (Exhibit A: 145-148), and capable of being scraped away by a metal scraper (Exhibit A: 672). Although none of the experts tested each of the walls in the dwelling, the experts agreed during the hearing that it is reasonable to assume that all the walls except for tiled areas, are affected by the same deficiency. The builder did not object to this assessment of the experts. The quantum for remedial work must therefore provide for all non-tiled wall surfaces to be remedied, which is approximately 240 square metres.
9All four experts agree with the owner that the set coat is deficient, and it requires remedial work. The builder also accepts the evidence of the experts. The experts furthermore agree that there is no remedial work required for the float coat. The paint is not deficient, but it would inevitably have to be removed to remedy the set coat.
10The question is what remedy should be applied to the set coat, and the cost of the remedial work.
11The scientific experts in their joint report agreed that there are two options available, being referred to as Option A and Option B (Exhibit A: 637).
12Option A: Completely remove the set coat layer back to the sound float coat and install a new set coat layer taking into account the porosity of the set coat and ensuring adequate moisture management.
13Option B: Apply water to the remaining set coat (after painting had been removed) to reactivate the cure (carbonation) process and wait around one week for that process to be complete with completion evidenced by reduction of pH to 10 or less. Then apply a new supplement skim layer set coat to create a level consistent finish. If Option B is not successful, then Option A is the only viable remedy.
14The reinstated set coat can be prepared for painting by one of two options: (a) wait at least four weeks for the plaster cure process to be completed by natural carbonation (indicated by when the pH is 10 or less), then prime/undercoat and paint the wall as normal with normal trade painting products; or (b) wait one week for the set coat to dry (pH will be higher than 10) and then apply a specialist high pH tolerant sealer/binder such as Zinsser Gards before applying two coats of premium acrylic wash-n-wear topcoat. The finished paint system, after being allowed to cure for a minimum of seven days, should pass an Australian Standard 1580 tape adhesion test which is then considered the plaster and paint system is properly remediated and fit for purpose (Exhibit A: 638).
15It is accepted by all the experts that Option A is suitable, viable, tested, and generally used in the building industry to perform remedial work of the nature required in this proceeding. Regarding Option B there is agreement between the scientific experts and builder Mr Chris Jones about its potential suitability and viability, but builder Mr James Lawrence disagrees. Mr Lawrence is of the view that only Option A is tested, suitable and viable.
…
18Due to the time it had taken to bring this complaint to a hearing, several reports had been prepared by the respective experts about the possible cause of the failure of the set coat and the appropriate remedy. For example, at various stages issues were raised about the appropriate standard that applies to set coat; the applicability of HB-161-2005 as a guide or a standard, the testing of paint, the testing of float coat and set coat, the proper methodology for testing; and suitable remedies. At the commencement of the hearing the experts giving evidence were offered the opportunity to revisit each of their reports to indicate which aspect, if any, no longer forms their opinion, or in the alternative we raised the possibility that they adopt their joint expert conferral reports as their evidence in chief and that any opinion expressed in an earlier report that is inconsistent with their joint expert conferral reports, be regarded as withdrawn and thus no weight be attached to it. The experts preferred the latter whereby they adopted the joint expert conferral reports and their oral evidence during the hearing as their evidence in chief. If any inconsistency arises between the hearing-evidence (written and oral) and an earlier report by the same expert, the hearing-evidence is to be regarded as the evidence of the particular witness.
19A threshold question that arose was what standard should be applied to set coat and to what standard should the remedial work comply? Building and Energy in their Revised Proposed Building Remedy Order (Exhibit A: 98 111) dated 14 June 2022 defined the 'action required' as having to be in compliance with HB-161-2005 Guide to Plastering. This purported standard became the subject of extensive examination, questioning, and confusion since the owner viewed HB-161-2005 as a legal standard for a set coat, whilst the experts held a different view, as explained below.
20The experts adopted the following position about the applicability of HB-161-2005 to the work the subject of the dispute as well as to the preferred remedial option:
(i)At the time when the dwelling was built, HB-161-2005 was only a relevant guide of good practice since it had been authored by experts in the building and construction industry;
(ii)HB-161-2005 was however not a binding standard at the time when the dwelling was built;
(iii)HB-161-2005 at no stage had been adopted as a binding standard in Western Australia;
(iv)HB-161-2005 was withdrawn as a guide on 29 November 2018;
(v)HB-161-2005 is no longer formally cited as a guide to plastering;
(vi)A builder may continue to rely on the guiding principles as previously set out in HB-161-2005, but there are also other ways to ensure proper and proficient plastering;
(vii)Strict compliance with the Revised Proposed Building Remedy Order, in as much as it cites HB-161-2005, cannot be achieved since it never was a standard and is no longer used as a guide;
(viii)There is currently no objective industry standard to apply set coat, other than the work having to meet the standard of proficiency for purpose; and
(ix)It is noted that deficiencies arising from white set plaster walls that appear soft, crumbly and easy to crack are widespread in the housing industry, but in the absence of a prescribed standard to be adhered to, it is the responsibility of each building practitioner to utilise material and adopt practices that are fit for purpose, namely to provide a hard and durable wall.
21We accept this position of the experts regarding HB-161-2005 as it also reflects our experience and knowledge. Since it is agreed that the set coat is failing, there is no need to further consider the relevance of HB 161-2005, and as far as remedial work is concerned HB 161 2005 no longer applies as a guide but the quantum we award must be adequate to provide a product that is hard and durable.
…
38At the commencement of the hearing the scientific experts and Mr Jones believed that there would be a major cost differentiation between Option A and Option B. As the examination progressed, it appeared that Option A and Option B were not as distinct as may have been proposed by the scientific experts in their joint report. The experts ultimately agreed that the quantum awarded to the owners for purposes of remediation ought not be influenced in substance by the options elected. Mr Lawrence, who was the only expert critical of Option B, also agreed with the quantum as estimated by Mr Jones and specifically that the quantum is adequate regardless of which of the options were elected.
…
43The final question is what quantum should be awarded for the owners to undertake the remedial work. Since the utility of relying on either Option A or Option B has fallen away, the cost calculated is based on Option A.
44We note that only Mr Chris Jones, who is a quantity surveyor, filed a detailed estimation for the costs of remedial work and gave oral evidence regarding his estimation. We also note than in regard to complaints 2 and 3 the owners had accepted the estimation proposed by Mr Jones. Senior Member Le Miere during the directions hearing of 28 June 2024 explained to the owners how the hearing process would work, the importance of witnesses being called to give evidence, and matters associated therewith (Exhibit A: 804-6). Senior Member Le Miere stressed that it does not matter if an estimation had been given in writing, 'they [the witness] need to come'. She went on to say (Exhibit A: 806):
… if there is a witness - if there' a report, then the person needs to give evidence so the tribunal can ask them questions about it and Mr Robertson [legal representative for the builder] can ask them questions. You can't just have the report. Well, sorry, you may have the report, but if you don't provide them to answer questions, then the tribunal might not accept their evidence.
45Senior Member Le Miere went on to explain why it is important for a witness to attend; to answer questions about costings; hourly rates; and methodology. This explanation reflected what had been told to the owners at previous directions hearings by Member De Villiers. Mr Mathews responded to say he would ascertain if his building expert Mr James Lawrence 'can help or not regarding the matter [of costing]' (Exhibit A: 807). Senior Member Le Miere concluded with a caution: 'If you choose not to call somebody who has given you a report, then the value of that to the tribunal may be very low. That is your choice' (Exhibit A: 807).
46The owners relied on the Remedial Works Proposal (Proposal) prepared by Midnight Construction Group (Exhibit A: 424-427). The quantum of claim they seek is $130,106.60. No person was called to give evidence in support of the Proposal or to answer questions about it. Mr Lawrence, who was called by the owners as an expert builder witness, expressed support for the estimation prepared by Mr Jones.
47We find that the Midnight Construction Proposal is not suitable for purposes of calculating the quantum to be awarded to the owners. Our reasons for this finding are:
(a)The Proposal was not signed by an authorised person or dated.
(b)No person was called to give evidence about the Proposal or to answer questions about it.
(c)The scope of the Proposal exceeds the scope of work as agreed to during the hearing by the scientific and building experts.
(d)The Proposal assumes that all set coat must be removed, whilst the evidence of the scientific experts and the building experts is that only the set coat of exposed areas needs to be removed, thereby excluding the removal of skirtings, floor coverings, mirrors, window treatments, and cornices. Since the Proposal included substantial works that would in fact not be required, and since the line-item works were not separately costed in detail (Exhibit A: 158 and 424), the utility of the Proposal fell away in its entirety.
48The builder relied on the estimation prepared by Mr Chris Jones (Exhibit A: 506). The estimate is $12,035 excluding 5% for sundries and GST. The total estimate is therefore $13,900.43. During the hearing we gave Mr Jones the opportunity to amend his estimate in light of the evidence that had been heard and the examination that had taken place. Mr Jones effectively retained the estimate but he did explain that differences in the lineallowance may be open to the owners, for example: if they do not want to use the product Prep Rite in accordance with Option B, the amount estimated of $3,120 could be used to apply set coat to the entire surface; or, if the patching of walls is not done, then the amount of $550 can be directed to the application of set coat to the entire surface. The nett result of the estimate remains the same.
49We allowed Mr Lawrence time during the hearing to reflect on the estimate prepared by Mr Jones. Mr Lawrence confirmed that the estimate is adequate for work to be done to give effect to his preferred option, Option A. Mr Lawrence had no other cost items to add for the remedial work to be undertaken.
50The four experts agree that the amount of $13,900.43 is reasonable for remedial work to be undertaken in regard to Option A and Option B. We also note that the credibility of the estimate by Mr Jones is enhanced by the fact the owners accepted the estimate that had been prepared by Mr Jones in respect of complaints 2 and 3.
51We accept the estimate prepared by Mr Jones and determine that the amount of $13,900.43 must be paid by the builder to the owners in full settlement for remedial work to be done in respect of complaint 1.
In my view, the decision of the original Tribunal was not wrong or attended with any doubt.
The original Tribunal identified the nature of the plaster complaint (being the defectiveness of the set coat), and considered the evidence of the expert witnesses called by each party regarding the way the faulty set coat should be remedied and the cost of the remedial work.
The original Tribunal did not accept the 'Midnight Construction Proposal' for the reasons given at [46] - [47] of the Reasons for Decision. I accept the point made by the applicants that it was incorrect for the original Tribunal to say at [47(a)] of the Reasons for Decision that the Midnight Construction Proposal was not dated because it is dated August 2, 2023.[2] However, that is an insignificant error weighed against the other significant reasons given by the original Tribunal at [47] of the Reasons for Decision for finding that the Midnight Construction Proposal was not suitable for the purposes of calculating the cost of the remedial work.
[2] See Exhibit A, page 424.
The applicants had been made aware, at a directions hearing conducted by Senior Member Le Miere on 28 June 2024, of the importance of calling as a witness at the final hearing a person who has prepared a report or quotation to answer questions about their report or quotation. That directions hearing was two months prior to the final hearing.
The applicants' submission, set out at [22] above, that the original Tribunal did not consider 'the homeowner's right to receive a quality home that complies with construction guidelines' is misconceived. The task of the original Tribunal, which it correctly undertook, was to determine on the evidence before it whether there was faulty plaster and, if so, the way in which the faulty plaster should be remedied and the reasonable[3] cost of that remedial work.
[3] Section 36(1)(b) of the BSCRA Act.
I do not accept the applicants' contention, set out in [23] above, that there was procedural unfairness to the applicants regarding the 'validity' of the Midnight Constructions quotation. The respondent's submission, set out at [25] above, is correct. The onus was on the applicants to establish, by the evidence they put to the original Tribunal at the final hearing, the way in which the faulty plaster should be remedied and the reasonable cost of that remedial work.
I also do not accept the applicants' contention, set out at [24] above, that Mr Mathew had trouble in presenting the applicants' case effectively at the final hearing because he was interrupted on several occasions by Member De Villiers. The applicants have not identified the occasions on which they say that occurred and it is nothing more than a general and vague assertion.
In my view the applicants were afforded natural justice (or procedural fairness) in being given the opportunity to present their case.
Was the amount of the plaster complaint order inadequate?
For the reasons above I find that the original Tribunal did not err in its decision regarding the amount of the plaster complaint order.
Ground 2 (that the original Tribunal erred in concluding that HB 161-2005 is no longer valid)
Applicants' submissions
The applicants submit that the original Tribunal erred in concluding that HB 161-2005 is no longer valid simply because it is a withdrawn publication. The applicants refer to a statement on the Standards Australia website that '[w]ithdrawn publications can still be used within an industry, community, or government if they choose to do so. For example, this can happen when there are no replacement documents readily available. Withdrawn publications are still available for purchase'.
The applicants then contend that '[t]his means that HB 161-2005 remains applicable until officially replaced, and it is routinely used in the industry as the most reliable technical reference. The [original] Tribunal's rejection of HB 161-2005 as irrelevant lacks foundation and contradicts the actual position of Standards Australia'.
The applicants also refer to the fact that Building and Energy continue to reference HB 161-2005 in assessing plastering work and that the Standard Tolerances WA (which I take to be a reference to the Western Australia Guide to standards and tolerances published by Building and Energy) refers to HB 161-2005.
Respondent's submissions
The respondent submits that the original Tribunal correctly accepted the evidence of the expert witnesses at the final hearing that HB 161-2005 was a guide at the time of construction of the applicants' dwelling, but it was never a legal standard and it was withdrawn as a guide on 29 November 2019 and there is currently no legal standard to apply to a set coat.
The respondent also points out that the original Tribunal accepted that a builder may continue to rely on HB 161-2005, but there are also other ways to ensure proper and proficient plastering, to provide a hard and durable wall.
Consideration
HB 161-2005 is a handbook (not a standard) titled 'Guide to Plastering' which was prepared by Standards Australia to produce a general guide to plastering.
The statement on the Standards Australia website referred to by the applicants in [39] above is in a section titled 'Statuses of Standards', which would not seem to apply to HB 161-2005 since it was never a standard. In any event, that statement merely says that a withdrawn publication can still be used if an industry chooses to do so.
The Western Australia Guide to standards and tolerances published by Building and Energy referred to by the applicants in [41] above, states in Section B: Authority of the guide that is only a guide, not a regulated standard and in Section 10: Plastering and rendering it contains an explanatory note that 'consideration should be given to the tolerances set out in HB161-2005'.
Did the original Tribunal err in its decision regarding the relevance of HB 161-2005?
Considering my observations in [44] - [46] above, I find that the original Tribunal did not err in its decision regarding the relevance of HB 161-2005, which is set out in [20] - [21] of the Reasons for Decision.[4]
Ground 3 (that the original Tribunal failed to ensure expert evidence compliance and systemic issues)
Applicants' submissions
[4] Which are set out in [29] above.
The applicants submit that the original Tribunal failed to ensure that the respondent's expert witness, Dr Zurhaar complied with the Tribunal's 'Guide to giving expert evidence'.
The applicants also submit that the original Tribunal 'did not address the incorrect practices identified during the proceedings'. That is a reference to requests made by the applicants in correspondence to the Tribunal filed months prior to the final hearing, which raised concerns about 'systemic failures' in the procedures and standards of the City of Bayswater and DMIRS (Department of Mines Industry Regulation and Safety).[5]
[5] Exhibit A page 727 (letter dated 17 March 2024) and pages 752 - 753 (letter dated 17 April 2024).
The applicants also submit that the original Tribunal 'failed to address the issue of a false statutory declaration submitted by the builder during the proceedings'.[6]
[6] Exhibit A, page 723.
The applicants also submit that 'Building and Energy must set clearer guidelines regarding plastering standards to prevent disputes like this one between homeowners and builders'. They say that despite '[their] efforts to raise these concerns with the Tribunal, no direction or recommendation was made to the relevant authorities to review or update their practices' and that '[t]his was a missed opportunity to promote system-wide improvement and protect future homeowners'.
Respondent's submissions
The respondent submits that this ground is essentially a wide-ranging collection of criticisms by the applicants of the Tribunal's processes and it is not a proper ground of review.
The respondent submits that this ground demonstrates a misunderstanding by the applicants of the criteria for a review application and the function and role of the Tribunal at first instance.
Consideration
When the scientific expert witnesses, Mr Rick Huges and Dr Armand Zurhaar were called as witnesses and affirmed Member De Villiers reminded them that they were 'witnesses of the tribunal' and that they were at the final hearing to assist the members constituting the original Tribunal and not to advocate for a party or for a specific position.[7]
[7] The transcript of the final hearing at page 30.
Those expert witnesses had acknowledged in the joint statement they signed following their conference that they had read the Tribunal's 'Guide to giving expert evidence' and agreed to be bound by the expert's obligations stated in that document.[8]
[8] Exhibit A, page 638.
When Mr Mathew was questioning Dr Zurhaar during the final hearing, he asked Dr Zurhaar whether he knew that as an expert witness he should assist the Tribunal impartially, not a party. Member De Villiers then stated that he had reminded Dr Zurhaar and Mr Hughes of their duty.[9]
[9] Transcript of the final hearing at page 59.
In my view, clearly the original Tribunal ensured that Dr Zurhaar understood his obligations to the Tribunal as an expert witness and the original Tribunal was, therefore, entitled to expect that he would comply with those obligations.
The issues raised by the applicants which are set out in [49] - [51] above are not relevant to the question of whether I should grant leave to review the plaster complaint order and I accept the respondent's submission set out in [53] above in that regard. It is not within the powers and functions of the Tribunal to consider those issues.
Did the original Tribunal err in the decision to make the plaster complaint order by failing to ensure expert evidence compliance and systemic issues?
For the reasons given above I find that the original Tribunal did not err in its decision regarding the plaster complaint order on account of any of the issues raised by the applicants in Ground 3.
Should the applicants be granted leave to review the plaster complaint order?
In my view, taking into consideration the principles set out in Myran Holdings,[10] for the reasons I have given above, I find that the decision of the original Tribunal was not wrong or attended with sufficient doubt and, therefore, there will not be any injustice suffered by the applicants if leave to review the plaster complaint order is not given.
[10] See [16] above.
Accordingly, I have decided not to grant leave to the applicants for review of the plaster complaint order and I will dismiss the review application.
Costs
In its submissions the respondent has indicated that it wishes to apply under s 49 of the BSCRA Act and/or s 87 of the SAT Act for its costs in this proceeding if the review application is dismissed.
Therefore, I will make orders to allow the respondent to apply for its costs and to provide that if the respondent applies for costs the applicants may file written submissions in opposition and the application for costs will be determined on the documents.
Orders
I will make the following orders:
The Tribunal orders:
1.Leave is refused for review of order 1 of the orders made by the Tribunal on 11 September 2024 in Matter Number CC 863 of 2022.
2.The application for review is dismissed.
3.The respondent has liberty to apply for its costs by filing with the Tribunal and giving to the applicants by 1 October 2025:
(a)a schedule of the costs claimed in sufficient detail to enable the Tribunal to fix any costs which might be awarded, together with any supporting documents upon which the respondent wishes to rely; and
(b)written submissions stating the basis upon which it is contended costs should be awarded and the basis upon which the amount of costs claimed is calculated.
4.If the respondent makes an application for costs under order 3 above, the applicants may file with the Tribunal and, if so, must give to the respondent, written submissions and any supporting documents on which the applicants wish to rely in opposition to the application for costs by 15 October 2025.
5.Subject to any further order, after 15 October 2025 the application for costs is to be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) and the Tribunal will fix the amount of any costs awarded in the same determination.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR D AITKEN, SENIOR MEMBER
17 SEPTEMBER 2025
0
4
2