MIKLAVS and BRUCE CONSTRUCTION DESIGN PTY LTD - [2021] WASAT 48

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   MIKLAVS and BRUCE CONSTRUCTION DESIGN PTY LTD [2021] WASAT 48
MEMBER:   MS L EDDY, SENIOR MEMBER
MR R AFFLECK, SENIOR SESSIONAL MEMBER

HEARD:   21 AND 22 SEPTEMBER 2020
DELIVERED          :   7 APRIL 2021
FILE NO/S:   CC 638 of 2020
BETWEEN:   ALEXIS MIKLAVS
Applicant
AND
BRUCE CONSTRUCTION DESIGN PTY LTD
Respondent

Catchwords:

Building services - Referral from Building Commissioner of complaint - Whether all items of complaint were included in referral from Building Commissioner - Whether building works carried out in a way that was not proper and proficient or was not satisfactory - Contract complaint - Whether building remedy order should be made - Whether HBWC remedy order should be made - Turns on own facts.

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5(1), s 5(2), s 11, s 36(1), s 36(1)(b), s 38, s 38(1), s 43
Home Building Contracts Act 1991 (WA), s 17, s 17(a)(ii), Pt 2

Result:

Building remedy order and HBWC remedy orders made

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	In Person

Solicitors:

Applicant	:	N/A
Respondent	:	N/A

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

Owners of Island Apartments Strata Plan 52597 and Pindan Pty Ltd [2017] WASAT 25
The Owners of One Brighton Strata Plan 51948 and Pindan Pty Ltd [2018] WASAT 84

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

In late 2018, Alexis and Peter Miklavs (the Miklavs or applicants) engaged the respondent, Bruce Construction Design Pty Ltd (Bruce Construction or respondent), to carry out alterations and additions to their home at 57 Margaret Street, Cottesloe. After some communications about the nature and extent of the contract, the parties agreed to enter into a lump sum (otherwise described as fixed sum) home building contract (contract). In early 2019, Bruce Construction commenced building works. Unfortunately, either the parties did not ensure that a full set of contract documents reflecting the entirety of their agreement was signed by both parties, or if they did, some parts of that have since been lost.[1]
[1] The only contract document signed by both parties in evidence in these proceedings is a standard form HIA 'WA Lump Sum Building Contract for Alterations and Additions' which includes a 'Schedule of Particulars' but without any accompanying, or otherwise clearly identified, addenda (identifying, for example, provisional sums and prime cost items as well as the agreed specifications) or plans.
In February 2020, the Miklavs and Mr Tim Bruce[2] carried out an inspection of the building works as they stood at that date. From that inspection, an agreed list of 'defects/problems/issues' was created.[3] Those 'defects/problems/issues' had not been resolved by May 2020, so the Miklavs went to the Building Commissioner.
[2] At all relevant times Mr Bruce was the sole Director of Bruce Construction Design Pty Ltd.
[3] See Exhibit 1, tab 1, pages 139 - 144.
The Miklavs made two types of complaint to the Building Commissioner. Firstly, that some aspects of the building works carried out by Bruce Construction were not carried out in a proper and proficient manner or were faulty or unsatisfactory (workmanship complaint).[4] Secondly, that there had been a breach of the home building contract as well as failures to comply with mandatory contract requirements, and/or misleading and deceptive conduct by Bruce Construction (contract complaint).[5] Having accepted the complaints, the Building Commissioner referred the Miklavs' complaints to the Tribunal in early June 2020.[6]
[4] This aspect was a complaint made pursuant to s 5(1) of the Building Services (Complaint Resolution and Administration Act 2011 (WA) (Building Services Act).
[5] This aspect was a complaint made pursuant to s 5(2) of the Building Services Act.
[6] Pursuant to s 11 of the Building Services Act.
There is no dispute between the parties that the workmanship complaint relates to a regulated building service, and that the service was provided by Bruce Construction.
In preparation for the hearing, the Miklavs produced a Scott Schedule itemising the list of items in their workmanship complaint and in their contract complaint, the proposed remedy of each and the estimated cost: (Exhibit 3). The Tribunal advised the parties, at the commencement of the hearing, that some of the items of complaint identified in the Miklavs' Scott Schedule did not appear to correlate to any item of complaint referred to the Tribunal by the Building Commissioner. The applicants proceeded to make submissions in relation to how they said each of the items in question were aspects of the complaints referred to the Tribunal by the Building Commissioner.
At the hearing, Mr Bruce, appearing as representative for the respondent, formally admitted that a significant number of the items of complaint[7] were referred to the Tribunal by the Building Commissioner and were items of work that the respondent agrees require remedial work. A table listing each of the items that were the subject of the admissions made by Bruce Construction, is attached at the end of these reasons.
[7] Referring to item numbers used in the Miklavs' Scott Schedule.
In relation to the contract complaint, of the items 'not built' identified in the Miklavs' Scott Schedule, Bruce Construction admitted that the items labelled there as NB-5, NB-6, NB-7, NB-8, NB-16, NB18, NB-19, NB-32, NB-39 and NB-43 had not been built or completed, and were required by the home building contract to be built or completed.
The Miklavs advised that they withdrew the items identified in their Scott Schedule as items 2.1.8, 2.10.7, 2.2.13, 2.12.15 and NB-12. The Tribunal accepted the withdrawal of those items and accordingly does not make any determination in relation to those items.
Thus the dispute between the parties has been somewhat narrowed.
It remains, however, for us to determine three broad issues. First, what is the extent of the referral from the Building Commissioner to the Tribunal? Second, in relation to the workmanship complaint, should the Tribunal make a building remedy order, and if so, what should the building remedy order consist of? Third, in relation to the contract complaint, should the Tribunal make a HBWC remedy order, and if so what should be the content of that order?
In resolving the second issue, we must decide if we are satisfied that any of the items of complaint that remain in dispute has not been carried out in a proper and proficient manner or is faulty or unsatisfactory. If we are so satisfied, we must decide whether to make or decline to make a building remedy order.[8] If we decide to make a building remedy order, we must determine what the content of that order should be.[9] In the context of this dispute, we have to focus on whether any building remedy order should require Bruce Construction to carry out remedial works or if it should be required to pay to the Miklavs such costs of remedying the building works as we consider reasonable.
[8] See s 38(1) of the Building Services Act.
[9] A building remedy order may consist of any one of the options specified in s 36(1) of the Building Services Act.
Resolution of the third issue requires consideration of a number of matters. Was there a breach of the home building contract between the Miklavs and Bruce Construction?[10] In order to determine this, it is necessary to ascertain the content of the contractual agreement between the parties. If there has been a breach, should a HBWC remedy order be made?[11] Was there a breach of the requirements of the relevant part of the Home Building Contracts Act 1991 (WA) (Home Contracts Act)?[12] Even if a breach of contract or a breach of the Home Contracts Act has occurred, are we satisfied that a HBWC remedy order should be made, or should we decline to make such an order?[13] If we decide to make a HBWC remedy order, what should be the content of that order?

Referral to Tribunal

[10] In order to determine this, we must establish what works, and in some regards what is the exact nature of some aspects of that work, were required to be carried out by Bruce Construction under the home building contract.

[11] A HBWC remedy order may only be made in relation to a breach that is not a breach in respect of which a building remedy order may be made: s 17 of the Home Building Contracts Act 1991 (WA).

[12] Section 17(a)(ii) of the Home Contracts Act .

[13] Section 43 of the Building Services Act.

The power of the Tribunal to make a building remedy order in circumstances such as these is predicated on the Building Commissioner having referred a building service complaint to the Tribunal: s 38(1) of the Building Services Act.[14] Similarly, the power of the Tribunal to make a HBWC remedy order is predicated on the Building Commissioner referring a HBWC complaint to the Tribunal: s 43 of the Building Services Act.
[14] See Owners of Island Apartments Strata Plan 52597 and Pindan Pty Ltd [2017] WASAT 25 (Owners of Island Apartments Strata Plan)
As has been previously explained by the Tribunal in Owners of Island Apartments Strata Plan 52597 and Pindan Pty Ltd [2017] WASAT 25at [77]:
It is a question of fact as to whether the complaint and the particulars of the regulated building service that the complainant says was not carried out in a proper and proficient manner or is faulty or unsatisfactory (items of complaint) as expressed in the documentation before the Tribunal is a 'new complaint' and did not form the whole or part of the complaint that was referred to the Tribunal.
It is for the Tribunal to identify what it is that has been referred to it by the Building Commissioner.[15] The Tribunal's task 'is to determine the true nature and scope of each of the disputed items having regard to its passage through the Building Commissioner from lodgement of the complaint document to referral to the Tribunal'.[16]
[15] The Owners of One Brighton Strata Plan 51948 and Pindan Pty Ltd [2018] WASAT 84 (The Owners of One Brighton) at [30] - [36].
[16] The Owners of One Brighton at [39].
By letter dated 28 May 2020, complaint 'BC2020-644' was referred to the Tribunal. The Notice of Decision advised that the decision to refer the complaint to the Tribunal was made because:
1.The complainant has alleged that the respondent engaged in misleading and deceptive conduct in connection with circumstances in which a contract or variation of contract is entered into, and
2.The matter is of a complex nature in which the evidence is contested and more appropriately dealt with by the State Administrative Tribunal.
Accompanying the Notice of Decision was an email from Mrs Alexis Miklavs, requesting that the Building Commissioner's delegate 'use our Notice of Proposed Complaint' (NoPC) and the list below of items not built or completed as our complete complaint as discussed on the phone yesterday'. A list of 25 items allegedly 'not built or not completed but in Construction/Building Plans' follows (NB list).
The description of the complaint in the building complaint lodged with the Building Commissioner by the Miklavs states that 'the complaint includes issues/uncertainties with the home building contract and unresolved major and minor defects'. A complaint schedule is attached to the building complaint, which contains three items, described as 'Defects', 'Items not built or completed but in Construction/Building Plans' and 'Failure of the Respondent to meet certain mandatory regulatory requirements under the Home Building Contracts Act 1991'. A number of documents accompanied the complaint schedule, including the defects list previously referred to and a copy of the NoPC describing 15 items, with item numbers 3 to 15 being items of alleged defective work.
Also accompanying the building complaint was an inspection report dated 21 March 2020 from Mr Andrew Scales (Scales report), an email from Mr Alan Gower to Mrs Miklavs dated 23 April 2020 (Gower email), and a quote from Nanoworx, both in relation to grouting, and a report form Minchin & Sims (undated) (Minchin & Sims report).
Having regard to the referral to the Tribunal, including all of the accompanying documents, we accept that the matters agreed between the parties as having been referred to the Tribunal by the Building Commissioner are matters that were included in the referral to the Tribunal. In relation to the matters not the subject of agreement between the parties, we make the following findings. As before, we have used the complaint item numbers used by the Miklavs in their Scott Schedule.

Allegations of defective work

Item 2.1.2 a number of cracked tiles

The Miklavs' Scott Schedule item 2.1.2 refers to 'Four Cracked tiles' as part of the complaint item 'Terrazzo'. Bruce Construction admits that there are two cracked tiles that were referred to the Tribunal as part of the Miklavs' building complaint.
The Defects List of 17 February 2020 relevantly refers, under the heading 'Terrazzo', only to 'Cracked tile'. The 'Defects/Issues List plus Proposed Remedies' dated 19 April 2020 identifies '3 cracked tiles' under the heading 'Terrazzo'. In the NoPC under item 3: Kitchen, Living/Dining/Bathrooms, Terrazzo, the description of the issue includes:
1.is damaged (cracked, chipped and/or un-honed edges) due to impact damage not reported by the Respondent to the manufacturer and accordingly not covered by manufaturer [sic] warranty[.]
The Scales report refers at page 13 of 51 to 'Cracked floor tile in the passage near the stairs upstairs', but does not otherwise refer to cracked tiles (as opposed to chipped tiles which are referred to as being throughout the tiling). The Minchin & Sims report does not refer to any cracked tiles.
We are satisfied that it was alleged that some of the Terrazzo tiles laid as part of the regulated building service were cracked (rather than having edge chips) and this was a complaint item made by the Miklavs to the Building Commissioner, and this item was part of the referral to the Tribunal. The exact number of tiles alleged to be cracked was not specified in the NoPC. We are satisfied that the item of complaint in relation to cracked tiles was sufficiently described in the NoPC so as to enable a response to that item of complaint. We are satisfied that this item of complaint was, in the context of all of the documents referred to the Building Commissioner, referring only to a small number of tiles, and the allegation was that they were cracked rather than chipped, apparently of a type of cracking that would have been the tile manufacturer's responsibility if reported to it at the appropriate time. We do not think that this item of complaint was limited to an exact number of tiles, although it was referring to a small number of tiles, rather than a widespread issue. We find that this item of the referral to the Tribunal could include four cracked tiles as alleged by the Miklavs, on the basis that this number is encompassed within the ambit of the item of complaint, which we are persuaded referenced a small number of cracked tiles.

Item 2.1.6 Drumming tiles

In their Scott Schedule, the Miklavs included item 2.1.6 'Drumming tiles'. Bruce Construction denies that this is an item of complaint referred to the Tribunal by the Building Commissioner. The Defects List does not refer to 'drumming' tiles at all, nor does it make any reference to poor installation of tiles in a general way. The NoPC refers at point 3 under 'Terrazzo' in the 'Description of issue' column to tiles being 'poorly installed'. This is a potentially very wide allegation. The remedy sought contains the following statement of works required (not including the demand to pay for the costs of a third party undertaking work and/or the payment of compensation):
a.An order that the respondent remove and replace the tile (or alternatively, ground and re-seal as appropriate) in a proper and proficient manner using new tile with suitable grout installed in accordance with the manufacturer's requirements and recommendations.
The Scales report refers only to floor tiles having edge chips and grout cracking as well as 'cracked floor tile'. There is a reference to the wall tiles in the main bathroom having 'Some general tile undulating and not all flat' (page 23 of 51). There is nothing in relation to terrazzo tile installation in the Minchin & Sims report.
The Gower email refers to cracking of tiles and states:
… This sort of cracking would indicated [sic] a fair amount of movement in the floor, the grout has then come away from the stone a not [sic] cracked itself which indicates a weak bond between the stone and the grout line. Was the stone pre-sealed before it was laid? If so on all sides or just the face?[.]
Having regard to this context, we are satisfied that the issue of whether the Terrazzo tiles were poorly installed, meaning that there was the ability for tiles to move in an unacceptable way, leading to a weak bond between the stone and the grout line, so as to lead the cracking of grout, was an item of complaint raised by the Miklavs to the Building Commissioner and referred to Tribunal. A general claim of tile 'drumming' was not raised. To the extent that the allegation of 'drumming' of tiles relates to the issue of the bond between tiles and grout, we are satisfied this claim does come within the items of complaint referred to the Tribunal. If, on the evidence, any 'drumming' of tiles relates to some other issue, that issue has not been referred to the Tribunal. We will need to consider the evidence in relation to 'drumming' tiles and the nature of the alleged fault in order to conclude, whether, on the facts, this item of complaint has in fact been referred to the Tribunal.

Item 2.3.6 Original windows poorly re-painted, stairwell window now leaking

The Miklavs submit that item 2.3.6 of their Scott Schedule, which relates to windows, is part of what is referred to in the NoPC as item 5, 'Sliding doors and Glazing'. However, although item 5 of the NoPC refers to glazing, the description of the issue makes reference only to doors. There is no reference in the NoPC to window glazing in this item. The Defects List has a heading 'Glazing' but there is no reference to windows being poorly re-painted or any leaking window. The Minchin & Sims report does refer to the painting and cleaning of stairwell window being 'average' and needing sanding and repainting.
There is a reference to the painting of a stairwell window in the Minchin & Sims report. The Scales report refers to a 'Stairwell Window leaking issues to be addressed since renovations as no leaking prior?' (page 14 of 51) with no further detail provided. However, there is nothing in the NoPC that could be understood as referring to, or including, any alleged leakage defect in relation to stairwell windows.
Item 10 of the NoPC includes the issue of 'Poor paint finish work around windows, doors and skirting'. We are satisfied that this item, when read with the supporting reports provided, can be taken as including an alleged poor paint finish on windows, which may include a stairwell window.
We are satisfied that the allegation relating to poor paint finish in item 2.3.6 of the Miklavs' Scott Schedule is included in the complaint referred to the Tribunal. However, the allegation of a leaking window in the stairwell area was not included.

Item 2.5.5 Poor quality support and waterproofing of neighbour's boundary wall and garage wall when raised driveway was built and backfilled

It is submitted that this item is included within item 7 on the NoPC, which is headed 'Exterior Paving And Driveway'. In particular, the Miklavs assert that this allegation comes within point 4 in the description of issue for item 7, which states:
Insufficient retaining of planter to neighbouring fence resulting in drainage and soil wash away issues.

The remedy sought in the NoPC in relation to item 7 is, relevantly:
An order that the Respondent refinish the driveway and ramp in the agreed finish, and correct retaining of planter in a proper and proficient manner[.]
The Defects List includes, under the heading 'Driveway' the bullet point 'Retaining of garden bed/neighbours boundary wall water drainage and sanding issue'. In the Scales report under the heading 'Driveway' there is reference to 'water run-off into the neighbouring property' and 'Retaining top finishing on the side poor'.
We are satisfied that an issue relating to the driveway causing water run-off into the neighbour's land is included in the building complaint referred to the Tribunal. We are also satisfied that this issue includes an allegation in relation to retaining, limited to the retaining of a planter or garden bed at the neighbour's boundary, which is associated with the driveway. We do not accept that any broader retaining issue was included in the building complaint to the Building Commissioner.

Item 2.5.6 Water Meter not lifted high enough

Item 2.5.6 of the Miklavs' Scott Schedule is also said to be an aspect of item 7 of the NoPC. We can find no express or inferred reference to a water meter anywhere in the NoPC, as understood having regard to the supporting materials. We are not satisfied that any alleged issue in relation to the water meter is part of the referral to the Tribunal.

Item 2.9.5 Downpipes from roof not connected to drain

The Miklavs submit that this allegation is part of complaint item 11 or item 15 in the NoPC, which are entitled 'Plumbing/Piping' and 'Roof' respectively. Item 11 in the NoPC refers to plumbing not being carried out in a proper or proficient manner, specifically 'water pipe noise when master shower used'. This item is described, in terms of location, as 'Master bath'. We are not persuaded that a complaint about outdoor downpipes is capable of being included within this item of complaint.
The description of item 15 in the NoPC is as follows:
Roof work by the Respondent not being carried out in a proper or proficient manner[.]
Specifically:
1.Additional fixings to flashings required;
2.Roof plumbing and sealing requires inspection for leaks and possible rectification.
Under complaint item 12 in the NoPC 'Fixtures And Fittings' there is included point 8: 'Exterior plumbing loose and improperly/poorly fixed, painted, siliconed and/or sealed; downpipe junctions unsightly'.
Both item 12 and item 15 in the NoPC make reference to the 'referenced reports' attached. The Scales report includes a reference to downpipes under the heading 'Roof Exterior' with a comment that 'Downpipe fixings need to be tightened and straightened'. A photograph (Photo Ref No 117) shows a downpipe that appears to be misaligned to drain below it.
We are satisfied that the issue of downpipes needing tightening and/or straightening, including straightening to align with the relevant drain, was included in the Miklavs' building complaint to the Building Commissioner and was referred to the Tribunal.

Item 2.10.4 Unfortunate detail, aircon vent in kitchen

This item is identified, in the Miklavs' Scott Schedule under the heading 'Fixtures And Fittings'. That same heading is used for item 12 of the NoPC. The specific items listed under that heading in the NoPC do not include any reference to an air conditioning vent in the kitchen.
The Minchin & Sims report includes a photograph accompanied by a statement 'Unfortunate detail, replace register and lower if possible'. (Exhibit 2, page 166) In the NoPC, in relation to item 12 Fixtures and Fittings, under the heading 'Evidence relied upon' the Minchin & Sims report is expressly referred to.
We are satisfied that this allegation was part of the referral to the Tribunal.

Alleged failures to complete works

Within the Miklavs' Scott Schedule there are a number of items that are specifically identified, in the final part of the Scott Schedule, as coming within the general description of 'Items Not Built but in Plans'. A number of items in the earlier parts of the Scott Schedule can also be understood as being allegations in the nature of contractual claims, that is, allegations of works that have not been carried that were required under the terms of the contract. Of these, there are a few items that the parties do not agree were included in the referral to the Tribunal.

Item 2.1.9 Tiles not laid behind the kitchen cabinetry throughout including fridge and item 2.1.10 Tiles not laid in laundry as per plans

There is nothing in the NB list that seems to refer to tiles not having been laid behind the kitchen cabinetry or in the laundry. Nor is there any reference to these allegations in the Defects List or in the Defects/Issues List dated 19 April 2020. The Minchin & Sims report refers to tiling behind the fridge not finished.
The Miklavs submit that these aspects are part of the allegation in item 3 of the NoPC relating to poorly installed Terrazzo tiles.
The allegation in these items of the Scott Schedule relate to a failure to lay tiles in some areas; it does not relate to inadequate installation. Although, to the extent that tiling has been started but not finished behind the fridge, this would come within the more general description of poor installation of tiles.
We have not been able to identify anything in any of the documents referred to the Tribunal from the Building Commissioner from which it might be reasonably concluded that the Miklavs were raising a complaint about a general failure to lay tiles behind kitchen cabinetry or in the laundry floor. We are not satisfied that these items are part of the complaint referred to the Tribunal.
We are satisfied that the complaint about workmanship in relation to the Terrazzo tiles referred to the Tribunal did include an allegation that behind the fridge in the kitchen, the tiling is not completed.

Item 2.4.2 Agreed cabinetry and shelving in Master bathroom

The NB list includes reference to 'ensuite bathroom open shelves'. To the extent that this item relates to open shelving that was alleged to have been contractually required to be installed by Bruce Construction, we are satisfied that this item was referred to the Tribunal.

Item 2.5.4 Asking the applicants to pay for pavers to carry out external hardscaping, not setting correct levels of paving to be done by applicants contractor

One of the items listed in the NB list is 'New proposed hardstand access paths'. There is no reference in the NoPC that provides any further light on this issue.
We are satisfied that the issue of hardscaping of access paths was an allegation within the Miklavs' contract complaint that was referred to the Tribunal.

Item 2.7.2 girls bathroom, floor waste not installed as per plans, further shower screen not built to plan; Item 2.7.9 ensuite toilet floor waste not installed as per plans; item NB-2 floor waste outside downstairs bathroom shower; item NB-3 floor waste in ensuite toilet; NB-38 girls shower wall/screen

There is reference to a laundry floor waste in the NB list but no reference to any other allegedly missing floor waste. Item 9 of the NoPC includes reference to 'Improper drainage outside main shower resulting in pooling of water'. The Defect List refers to 'No drainage outside shower' under the heading 'Girls Bathroom' and there is no similar type of allegation in relation to the 'Master Bathroom'. The Scales report refers to the 'Main Bathroom' (page 23 of 51) and under that heading there is a comment to the effect that there is no waste installed to assist with water ponding issue. The plans show two bathrooms and a separate powder room within the scope of the building works. We accept, therefore, that references to the 'Main' bathroom and to the 'Girls' bathroom are both references to the bathroom that is not the ensuite bathroom.
We are satisfied that the complaint referred to the Tribunal included an item alleging that there was improper drainage outside the main shower. We consider that this, understood in the context of the materials provided, can reasonably be understood as including a claim that the drainage issue may be caused or contributed to by the absence of a floor waste.
We are not persuaded that any allegation of a failure to install a floor waste in the ensuite bathroom was part of the complaint referred to the Tribunal. We do not understand what the reference in item 2.7.2 of the Miklavs' Scott Schedule to further shower screens means and we have not been able to identify any basis on which it could be said that an allegation of this type was referred to the Tribunal.

Item 2.12.3 General Acid cleaning; item NB-22 Whole house acid washed

The Defects List includes a number of bullet points under the heading 'Outside', one of which is 'acid wash whole house??' The Scales report includes a comment (at page 29 of 51) 'General Acid cleaning and tidy up of all brick areas as per markers and all part of the contract'. However, there is nothing in the NB list that could reasonably be understood as referring to the need for an acid wash of the exterior of the house. There is nothing in the NoPC that could be taken as including this allegation.
We are not persuaded that this allegation was included in the complaint referred to the Tribunal.

Item NB-17 Carport and all structural work associated with it

The Miklavs submit that this item relates to the reference to 'steel framed pergola structure' in the NB list. As there does not appear to be any other item that could come within the meaning of a pergola structure identified in the Miklavs' Scott Schedule, or apparent on the approved plans, we accept that item NB-17 is intended to be a reference to the pergola structure that was part of the 'not built' aspect of the Miklavs' complaint that was referred to the Tribunal.

Item NB-40 Downstairs hallway linen press doors; NB-42 Metal frame kitchen island bench; NB-46 Western boundary brick walls - Breeze block infill

Although the Tribunal asked the applicants to identify where all of the items listed as not built items in their Scott Schedule had been included in the complaint referred to the Tribunal, these items were not specifically referred to. We have not been able to identify any relevant reference to these issues in the NoPC, the NB list or any of the documents attached to the complaint made to the Building Commissioner. We are not satisfied that there is any reasonable basis on which Bruce Construction could have understood that these were items of the Miklavs' complaint to the Building Commissioner.
We find that these items are not part of the complaint referred to the Tribunal.

Disposition in relation to disputed workmanship allegations

To assist us in determining whether any of the disputed items of the workmanship complaint were not carried out in a proper and proficient manner or were faulty or unsatisfactory we had before us a significant number of documents. Those documents included:
•the documents from the Building Commissioner's office that accompanied the referral to the Tribunal;
•the parties Statements of Issues Facts and Contentions;
•the applicants' bundle of documents;
•the respondent's bundle of documents; and
•witness statements filed by the applicant from Alan Gower,[17] Craig Peterson,[18] Andrew Scales,[19] Gary Burgess,[20] Davide Degli Esposti,[21] Gavin Jones,[22] Ramon Carrera[23] and Toby Bird.[24]
[17] Account Manager of Ardex Australia Pty Ltd, which Mr Gower describes as the industry leader, offering engineered products and systems in the areas of floor levelling and adhesives, tile and natural stone systems, sheet and liquid applied waterproofing membranes, general construction and decorative surfaces. Mr Gower inspected the Miklavs' Terrazzo.
[18] Managing Director of ICS Australia Building Services Group, a registered building supervisor who performed a building inspection of the Miklavs' home and produced quotes for the cost of remedial work sought by the Miklavs.
[19] Owner and operator of ProConsult Building Inspections and a registered builder with considerable experience. Mr Scales performed a building inspection of the Miklavs' home and provided a report.
[20] The Managing Director of Mister Mould, and a registered mould information, solutions and removal expert. Mr Burgess provided a report in relation to his inspection of the Miklavs' home.
[21] Mr Esposti works for European Ceramics, one of Perth's largest importers of ceramic tiles.
[22] Supervisor at Tim Davies Landscaping, who were employed by the Miklavs' to remove plants and soil from the front planter at their home and review the design of the planter and associated structures.
[23] Director of Nanoworx, specialist stone and glass surface restoration company. Mr Carrera inspected the Terrazzo installed in the Miklavs' home.
[24] Managing Director of Minchin and Sims Builders Pty Ltd, a registered builder. Mr Bird performed a building inspection of the Miklavs' home and provided a report and cost estimates for remedial work.
At the final hearing, we heard oral evidence from the Miklavs and from Mr Bruce, as well as from Mr Scales, Mr Peterson, Mr Carrera and Mr Bird.
In the course of the proceedings in the Tribunal, Bruce Construction sought access to the Miklavs' home in order to carry out inspections before finalising its position. Although the Tribunal made an order (in July 2020) allowing the respondent access to the Miklavs' home for the purpose of any inspections it considered necessary, ultimately Bruce Construction did not take up that opportunity and did not lodge with the Tribunal any reports from any third party or independent builder.
We now turn to our findings in relation to each of the disputed items of the workmanship complaint in turn.

Item 2.1.2 cracked tiles and Item 2.1.6 drummy tiles

An email from Mr Alan Gower of Ardex Australia Pty Limited, relied upon by the Miklavs states as follows:
Cracking - This sort of cracking would indicated [sic] a fair amount of movement in the floor, the grout has then come away from the stone a [sic] not cracked itself which indicates a weak bond between the stone and the grout line. …
Pin-Holing - There is a considerable amount of pin-holing in the grout. This would indicate excess water has been added during mixing. This would make the grout weaker than it should be.
…
In summary I would say this is a case of the grout being over-watered and being weaker than it should so it has not performed correctly. Going forward I would recommend the grout is removed and reinstalled to the correct water ratio[.]
Mr Ramon Carrera, is the Director of a company, Nanoworx, which is a specialist stone and glass surface restoration company based in Perth. He inspected the Terrazzo floors installed at the Miklavs' house. Mr Carrera provided a witness statement and gave oral evidence at the hearing.
Mr Carrera observed 'three or four' tiles were cracked (ts 88, 21 September 2020). He explained that he did not think that the cracking observed in the tiles and in the grouting was the result of an underlying structural issue because of the pattern of the cracking (ts 88 - 89, 21 September 2020). The amount of chipping observed in the tiles was not normal in Mr Carrera's opinion and in his view, tiles would be not be used if they were cracked or chipped.
Mr Craig Petersen observed six cracked tiles (ts 190, 22 September 2020)
In relation to drummy tiles, Mr Carrera stated that he noticed that some of the tiles were not properly bonded, causing drumminess. He stated that about 60% of the tiles are 'quite drummy' (ts 81, 21 September 2020). Initially, Mr Carrera explained that the drumminess was caused either because glue was not applied directly to the tile first (a process known as 'buttering' the back of the tile) or an issue with the surface (ts 82, 21 September 2020). Mr Carrera went on to discuss the tile drumminess and the joint cracking together and described the issue in both cases as that 'it has not adhered to the ground properly, so your probably going to get some form of movement' (ts 82, 21 September 2020). When asked whether the glue used in laying the tile would be a cause of drumminess, Mr Carrera stated that the issue was 'more just out of surface prep' (ts 84, 21 September 2020).
Mr Carrera proposed that generally speaking you would remove the drummy tiles by means of a jack hammer and re-lay new tiles 'replace them and obviously let them acclimatise and then re-grout' (ts 83, 21 September 2020). No quote was provided for that work and Mr Carrera clarified that work of that nature was not included in the quote he had provided.
Mr Carrera provided a quote to remedy the chipped tiles and grouting issue in the Terrazzo flooring (Exhibit 2, page 215). Based on his inspection and looking at the photographs in evidence, Mr Carrera considered that some chips in the tiles could be completely removed by grinding of the tiles, while some chips were deeper and would require replacement of the tile involved. It became apparent when Mr Carrera was giving evidence that in his quote to remedy tiles chips and grout cracking, he had included the cost of using an epoxy grout, which he considered produces a superior result. He stated that the use of such a grout was not necessary and was a more expensive remedy than the use of non-epoxy grout. The difference in cost is approximately $15 - $18 more per m² if using epoxy grout, rather than approximately $35 per m² not using epoxy grout (ts 92, 21 September 2020).
When asked about whether the need to replace some tiles (where tiles are cracked and where chips are deep enough to need replacement rather than grinding of the surface), Mr Carrera explained that because the product used is a man-made product, he would consider it likely that sufficiently similar replacement tiles could be sourced so as to produce a reasonable finish.
Mr Carrera's evidence was not challenged.
The Tribunal finds that the Terrazzo tiling aspect of the regulated building service was not carried out in a proper and proficient manner or was faulty or unsatisfactory in that four of the tiles used are obviously cracked. They should be replaced.
In addition, approximately 60% of the Terrazzo tiles are not properly adhered to the underlying surface causing 'drumminess'. Although in some of his evidence Mr Carrera seemed to be equating the issue of drumminess with the grouting issues (not disputed), we find that having regard to the whole of his evidence, the drumminess is not an issue connected with the grouting. Rather, it is caused by a lack of 'buttering' or a failure in proper preparation of the surface to which the tiles are adhered. The drumminess issue is not an issue related to any problem with the bond between tiles and grout. This aspect of improper, faulty or unsatisfactory work is not an issue that is part of the complaint referred to the Tribunal. If it had been, we would have been satisfied that this is an aspect of the building service that the respondent would otherwise be liable for.

Item 2.1.9 Tiling behind fridge

This is an item of defective workmanship identified in the Minchin & Sims report. Mr Bird, the author of the Minchin & Sims report, adopted his report at the hearing and he was not challenged in relation to any of the statements in his report.
We are satisfied that the tiling behind the fridge is not finished and needs to be remedied.

Item 2.3.6 original windows poorly re-painted

Mr Toby Bird, the Managing Director of Minchin and Sims Builders Pty Ltd provided a witness statement, and gave evidence at the hearing in these proceedings. He performed a building inspection of the Miklavs' home and produced the report which we have been referring to in these reasons as the Minchin & Sims report.
In the Minchin & Sims report (Exhibit 1, page 167) it states:
Painting and cleaning of Stairwell window average, needs sanding and repainting.

This finding was not disputed in cross-examination.
In his oral evidence, Mr Bird stated (ts 97, 21 September 2020):
I think more than anything there's just a lot of unfinished work, is what I would say. There are some quality issues, but, you know, that's quite normal in any buildings that haven't been rectified. You know, obviously, we give the option for the builder to come back and rectify those. I have listed, you know, quite a lot of items that need to be rectified. As I said, that would be normal, that the builder would come back and rectify. But, probably - I would say there are some rectification works that need to be done, but there's a lot of unfinished work as well.
We are satisfied that the painting of the stairwell window is a matter that needs to be rectified based on the Minchin & Sims report.

Item 2.4.3 cabinetry shaved for installation

Mr Bird identified that the cabinetry in question was in the master bedroom. He said that the cabinetry was not 'done correctly' but installed anyway. He stated that it needed to be rectified (ts 132, 21 September 2020). He explained that the way the cabinetry has been finished is not correct. The panel, where it meets the wall, the alignment is proud past the wall. Mr Bird agreed that cabinetry that is made off site may need to be cut on site in order to be installed. Mr Bird confirmed that the cabinet should have been cut by 510 millimetres so that it was not proud of the wall.
Mr Petersen explained that the carcass of cabinets made off-site will inevitably need to be 'scribed' by placing a small fillet of timber to ensure the cabinets fit properly into the walls, which may not be fully square.
We are satisfied that the cabinetry in the master bedroom has a defect in that it is proud of the wall and should be finished correctly. This item needs to be remedied.

Item 2.5.5 poor support and waterproofing of neighbour's boundary wall and garage wall when raised driveway built and item 2.5.7 poor finish retaining top to side driveway garden bed

In relation to the issue of support, Mr Bruce said that the Engineering drawings did not capture the need to deal with the increase in level on the Miklavs' land, which resulted in an incline to the next door property.[25] He asserted that Bruce Construction assisted the Miklavs by 'the make good' of that section.[26]
[25] Ts, 242, 22 September 2020.
[26] Ts, 243, 22 September 2020.
Mr Bird observed that there were some concrete cavity fill blocks with concrete that was not filled all the way. In addition there were some waterproofing issues associated with that. He stated that there is some subsistence towards the road on Margaret Street because there is not enough retaining in place.
Mr Bird agreed with Mr Bruce that the plans approved by the Cottesloe Council do not identify any wall structure to the boundary line (ts 136, 21 September 2020). However, Mr Bird stated that he would never apply a surcharge to a neighbour's boundary wall and as the builder, if such an issue arose, he would stop work and seek instructions.
A report by WA Structural Consulting Engineers Pty Ltd states that (Exhibit 2, page 548):
… A newly constructed blockwork wall has been installed adjacent to neighbouring garage and partial extension beyond, with front portion of landscaping around an existing palm tree initially backfilled with no membrane or backing blocks. Existing limestone blockwork wall is fairly porous, allowing water from garden bed to permeate through easily.
…
We find that the following works, will aid in reducing any long-term movement or water seepage through the wall. … Please see attached sketch detail, full extent of wall to be confirmed on site[.]
On page 549 of Exhibit 2, there is provided 'sketch detail of blockwork wall works to support loads and WPM [water proof membrane] extent to reduce water seepage'.
We accept Mr Bird's evidence, which was not contradicted. We find that the failure to properly support the existing wall with a properly waterproofed structure is building work that is not satisfactory in the circumstances that existed.

Items 2.6.1 non-waterproofed planter leaking

There is no dispute that the planter installed during the building works is not fully waterproofed and is leaking. The Miklavs submit that the requirement to install the planter and 'waterproof internally as required' is specified in the contract plans.
Bruce Construction submits that it was not part of its responsibility to waterproof the planter box. Mr Bruce said (ts 250, 22 September 2020):
?---I firmly stand by this. When it's the contractor's obligation to fulfil a garden box with the requirements of holding water, holding moisture, whatever comes with it, we've built in accordance to the structure. It is not the builder's responsibility to waterproof. On the plans do you agree that it says: ...waterproof internally as required. ?---As required. I believe it's on there.
It is not necessarily the case that a planter installed without waterproofing is unfinished work. The need for waterproofing depends on what the planter is to be used for.[27] Having said this, unless it is otherwise clear, the prospect that a structure that is to be installed as part of home building works which is identified as an outdoor planter might be used to house live plants is, we think, such a likely one, that if the builder is not to provide waterproofing, it must be clear that this is the case in order for the works to be considered properly or adequately finished without waterproofing.
[27] We think a planter box is not like a shower, for example, which necessarily involves water in its use, and therefore cannot be satisfactorily installed without proper waterproofing. One can imagine that an outdoor planter box may be used for artificial plants, for example, or for some other decorative purpose that does not involve the housing of live plants. Waterproofing will only be necessary if the intended use is for one involving the use of water.
Bruce Construction asserts that it was not contracted to provide landscaping. This is beside the point. Unless the planter has been specifically identified as one which will not be used to house live plants, or there is an agreement between the parties that the planter is not to be waterproofed, we are not satisfied that a structure identified to be used as a planter can be properly or satisfactorily finished without being waterproofed.
There is no dispute that Bruce Construction installed the planter. There is nothing in the second building licence plans, the structural plans, the construction plans or anywhere else in the documents before us to indicate that there was an express agreement that the planter was to be left not waterproofed.
We find that the planter was not proper or satisfactory because it was not finished to the appropriate standard. This is because the contract required an outdoor planter to be installed; it was not identified that this was not to be used to house live plants; and we are not satisfied that the parties agreed, as part of their contract, that the planter was not to be waterproofed.

Item 2.7.2 girls' bathroom improper drainage outside shower

It was Mr Bird's evidence that there was improper drainage outside the shower. He said there is a fully framed glass shower screen in there that leaks, allowing water outside of the shower. He said that such frames often leak so the shower frame itself did not seem to be an issue. Rather, Mr Bird stated that 'there's no drainage to pick up that water outside of the shower' (ts 115, 21 September 2020). He was asked whether there needed to be drainage in that location and replied that there did.
Mr Bird's evidence on this issue was not disputed.
We are satisfied that this item of complaint is established and needs to be remedied.

Item 2.7.6 outdoor shower not working, drainage incorrect

Mr Bird inspected the outdoor shower and stated that it 'was not flowing very well. It was, I would say, calcified, due to the quality of the product outside; not suitable' (ts 117, 21 September 2020). He clarified that the shower head was not suitable. The water run-off is towards the house, which was not correct. We accept this evidence, which was not contradicted.
We are satisfied that the shower head used for the outdoor shower was not suitable for outdoor use. Where a shower is to be installed outside the builder should have ensured a suitable outdoor product was used, or if the client picked something not suitable, advised them of the consequences. Bruce Construction did not assert that the latter situation existed, and nothing in the evidence points to such a situation. We find that the installation of a shower head that was not suitable for outdoor use was unsatisfactory building work by Bruce Construction.
We find that the drainage of the outdoor shower is not proper and proficient, or is unsatisfactory. It should not run towards the house.

Item 2.9.5 downpipe not connected to drain

A photograph in the Minchin & Sims report shows a downpipe that is not directly aligned to the drain below. Mr Bird indicated that this appeared to him to be an issue that could be easily adjusted.
We are satisfied that the downpipe is not properly connected to the drain and it should be. This needs to be remedied.

Item 2.10.2 (part) fireplace

Mr Bird's evidence was that he observed what he believed to be a temporary mantel in place over the fireplace. He observed that it was slightly loose. Mr Bruce questioned Mr Bird in relation to this issue and suggested that the mantel may have loosened over time because of what was placed on the mantel. Mr Bird considered that the mantel was not able to hold a usual amount of weight.
Mr Bruce suggested to Mr Bird that the mantle was fixed to a gyprock wall and therefore could not be expected to be fixed more securely. Mr Bird did not accept that suggestion and advised that it would be necessary to cut out the gyprock and get a solid backing behind the mantle in order to properly secure it.
After hearing Mr Bird's evidence, Mr Bruce, on behalf of Bruce Construction accepted that the fixing of the mantle was not sufficient and needed to be remedied (ts 121, 21 September 2020).
We are satisfied that the fixing of the mantle to the wall was not satisfactory and requires remedying.

Item 2.10.4 air-conditioning vent

The Minchin & Sims report has a photograph of the airconditioning vent that is the subject of this item of complaint. Mr Bird explained that the whole of the air-conditioning vent was not present. He said that there was 'about two-thirds of the vent' and that 'you need to have the whole vent in order to get proper airflow out of the vent' (ts 121, 21 September 2020). He also stated the vent was not attractive. Mr Bird commented that the location where the vent is installed is a difficult location with not a lot of ceiling height.
In terms of the remedy proposed, Mr Bird stated that he did not know if there is any extra height available in that location. He said that it needs to be lowered about 100 millimetres. After being referred to the plans, Mr Bird stated that he considered that there was 'a fair bit of room in there' (ts 124, 21 September 2020). Alternatively, Mr Bird considered that a custom made vent of the same volume could have been used. A longer and skinnier vent that was able to pump the same volume of air.
We are satisfied that the cut down air-conditioning vent is not satisfactory and should be remedied.

Items 2.11.1 to 2.11.7 mould in wall cavity, lack of weep vents, misalignment of roof plumbing, planter box drainage, mould in storage room

Mr Bird's evidence was that the planter box drainage above was causing the mould and water damage problem referred to in these items of complaint (ts 124, 21 September 2020). Mr Bird stated that it was visually obvious that the waterproof membrane had not been applied correctly.
Mr Bird also stated that the planter box had not been built to the plan and structural engineering design. The plans show a footing to take a masonry wall that was to be built under the ramped area to help support the weight of the planter box (ts 125 - 126, 21 September 2020). According to Mr Bird, that masonry wall has not been built.
In relation to the drainage of the planter box, Mr Bird stated that soil and water is dripping out of the planter box. He stated that the plans show a deck in that location that would have drainage under it to direct the drainage away.
This evidence is corroborated by the evidence of Mr Burgess, who also observed moisture ingress in the store room from the planter box above. He noted mould growth to the ceiling and walls, which had medium to high moisture readings.
Mr Bruce submits that the cause of leaking from the planter box is the lack of waterproofing. Bruce Construction asserts that the waterproofing of the planter box was outside of its scope of works.
We have already found that the planter box was required to be waterproofed in order to be finished properly. The water damage and mould caused by the failure to do so should be remedied by Bruce Construction.
Mr Burgess noted mould in the cavity of the south/west gyprock wall and mould present in the cavity. High moisture readings to the tiled floor up to 60 centimetres from the south-west wall suggested water ingress. Mr Burgess opined that weep vents at the base of the south-west wall could allow water ingress to the cavity and affect that gyprock wall. He stated that these weep vents should be rectified.
Mr Burgess' evidence was not contradicted, and we accept it.
We find that the weep vents to the south-west wall of bedroom one are unsatisfactory and need to be remedied.

Item 2.12.5 external finishing poor and incomplete

Mr Bird stated that he observed that 'a lot of items were incomplete', as listed in his report (ts 129, 21 September 2020). This evidence was not disputed or contradicted.
We are satisfied that each of the items of external finishing shown in the Minchin & Sims report are not proper and proficient and are not satisfactory.

Item 2.12.8 weather board exterior cladding

Mr Bird identified that this item relates to the south-eastern corner of the building where there is textured render. He explained that there was not a finishing plate put on the bottom to finish the render to, so that you can see the timber and the edge of the fibre content. Ordinarily the render would be 'finished to' the finishing plate. This evidence was not disputed.
We are satisfied that the textured render on the south-eastern corner of the building is not satisfactorily finished at the bottom edge because there is no finishing plate in place. This should be remedied.

Item 2.12.12 lintel southside not painted and rusting

Mr Bird confirmed in his evidence that he had observed the lintel in question to be not painted and rusting. He stated that to remedy the issue, the lintel needs to be ground back, coated with a rust inhibitor and painted (ts 130, 21 September 2020). This evidence was not disputed.
We are satisfied that the lintel in question has not been satisfactorily finished and should be remedied as recommended by Mr Bird.

Item 2.13.6 general finishing and settlement cracking maintenance to be addressed

Mr Bird confirmed that this item was unsatisfactory and required touch up by a painter. He conceded that this was part of a 'normal painter's touch-up', but we did not understand this concession to change his evidence that it should be remediated.
We are satisfied that the failure to touch up and ensure that an appropriate finish had been achieved is unsatisfactory, or is not proper and proficient work by the builder.

Disposition of contract complaint

The Miklavs assert that there are a number of items of work that were included in the contract that were not completed by Bruce Construction. They also assert that Bruce Construction breached mandatory requirements of the Home Contracts Act by failing to provide a complete written contract signed by the parties prior to commencing work and by failing to document variations to the contract in writing (setting out all the terms and the costs of the variation) and signed by the parties: for example NoPC items 1 and 2.
It is necessary, in order to determine the allegations about items of work that the Miklavs say were not built, or were not built according to the contract requirements, to determine what was the scope of the contract and what, if any, variations were made to that contract.
The evidence before the Tribunal in relation to the contract includes a WA Lump Sum Building Contract for Alterations and Additions dated 1 December 2018 that has the signatures of Alexis and Peter Miklavs, as well as Geoffrey and Anne Hesford in relation to 'proof of receipt of documents' (Exhibit 1, tab 3, page 49) and the signatures of Alexis Miklavs, Geoff and Anne Hesford and Tim Bruce in the execution part (Exhibit 1, tab 3, pages 50 - 51) with what appears to be the initials of Alexis Miklavs and Tim Bruce on all pages of the contract (see Exhibit 1, tab 3, pages 42 – 68). This contract identifies the total contract price as $450,000. There is another WA Lump Sum Building Contract for Alterations and Additions (Exhibit 2, pages 221 247) which is undated and does not include any of the parties' signatures. This contract also specifies a contract price of $450,000. A copy of the contract signature clauses apparently signed by Peter Miklavs only, and dated 23 May 2019 is also included (see pages 249 - 250).
There is a 'Building Proposal' dated 29 November 2018 with a specification addenda, which appears to have a date '29 November 2018' (Exhibit 2, pages 364 - 378).
Mr Bruce stated that there was no specification addenda included in the other builder's plans that were provided to Bruce Construction. He said Bruce Construction had to create a specification addenda for the contract (ts 164, 22 September 2020). The specification addenda produced by Bruce Construction for the contract was that contained in Exhibit 2, pages 364 - 378. Bruce Construction asserts that these were the specifications included in the contract between Bruce Construction and the Miklavs (ts 164, 22 September 2020).
The Miklavs say that the specifications that were agreed in relation to the other builder's plans that were taken over by Bruce Construction were those listed in the email from them to Mr Bruce dated 13 November 2018 (Finishes email), which provides as follows (Exhibit 2, page 338):
All taps phoenix gold range for everything
Zip tap for kitchen to be discussed with Adam which one and where to be placed
All tiles as chosen by my[a]ree ceramics
floors Woodpecker Antique White wash
Kitchen painted finished in a vertical panel colour to be decided
Kitchen tops stone alpine mist by caesarstone
Bathroom painted finish in vertical panel colour to be decided
Bathroom top Caesar stone colour to be decided
Gold hardware throughout having had a look I say it is wise to allow for $35 each
Laundry laminex with stone top and tile splash back
Master wardrobe laminex to be colour to be decided (would like further discussion with Adam)
Kids wardrobes painted vertical panel finish colour to be decided (would like further discussion with Adam)
Cabinetry in entrance/dining room/lounge room painted finish stone top where needed
Cabinetry in downstairs hall/stair area painted finish colour to be decided
Wallpaper in bathrooms provided by me however we need to find an installer I don't know one
Pendant in kitchen provided by me - now we are changing the ceiling heights perhaps we can look a[t] pendants over the dining table and the lounge
extra electrical thoughts - more down lights downstairs, lots or outdoor power points for parties and party lights, extra power points in bedrooms, power and antenna to wall hung TV upstairs and downstairs, in the downstairs activity room I would like a hardwired neon light for the girls[.]
The Miklavs assert that the specification addenda in Exhibit 2, pages 364 - 378 was not part of any contract they signed and they had not seen any such document at the time of the making of the contract arrangements. The first time they saw this document was when it was produced in the course of these proceedings. As far as they were aware, the only changes to the specifications that they had listed in the Finishes email were those covered in the course of email exchanges that occurred in the course of the design changes that were carried out by Darklight Design (the addition of the roof terrace and some other changes to the other builder's plans). For example, the Miklavs agreed that the painted finish to cabinetry that was included in the Finishes email had to be changed to laminate to keep the cost of the design changes to a total of $50,000 (ts 171, 22 September 2020).

Mr Bruce did not assert that the Miklavs had seen and/or signed the Specification Addenda. He asserts that 'they were aware of it because it was in an email to their bank which was requested. So they had to be informed' (ts 219, 22 September 2020). At the hearing, Mr Bruce confirmed that the Miklavs had not had any input in to the development of that document (ts 247, 22 September 2020).
Bruce Construction disputes that the items contained in the Finishes email were incorporated into the contract (ts 219 220, 22 September 2020).
By way of plans, there are the following sets of plans in the evidence:
•plans following a cover page entitled 'Building Licence' dated 6 November 2018 (Exhibit 1, tab 3, pages 19 - 31; also Exhibit 2, pages 339 - 351) (First Building Licence plans);
•plans following a cover page entitled 'Building Licence' dated 16 April 2019 (Exhibit 1, tab 3, pages 7 - 18;) (Second Building Licence plans);
•WA Structural Consulting Engineers plans dated 18 April 2019 (Exhibit 2, pages 38 - 43);
•plans following a cover page entitled 'Construction Issue' dated 5 May 2019 (Exhibit 2, pages 44 - 55) (Construction plans);
•plans described as 'Planning Application 10.12.18' (Exhibit 2, pages 56 - 61);and
•plans described as 'Amended Planning Application 26.03.19' (Exhibit 1, tab 3 pages 1 – 6; also Exhibit 2, pages 84 - 89);
None of the sets of plans are signed or initialled by the parties. Mr Bruce explained that when the Town of Cottesloe issues a Building permit and other relevant certificates without returning copies of the associated plans. He asserts that the plans were provided to the Town and not returned to Bruce Construction.
A certificate of design compliance (certificate) identifies plans and specifications that were included in the certification (see Exhibit 1, tab 3, pages 33 - 36). The First Building Licence plans are the plans identified in the certificate. The certificate refers to engineering drawings stamped Structerre Job No J314517 pages 1 - 6, however the Tribunal does not have any plans labelled in that way in the evidence before us.
It is not in dispute that the parties initially agreed to the contract sum of $400,000 and then agreed to some further works being added to the home building contract that included, amongst some other things, a roof terrace. The agreement to include additional works caused the contract price to be increased to $450,000.
The applicants' Statement of Issues Facts and Contentions details what they say occurred in relation to their contract and they include a number of emails and text messages in support of their claims in relation to what was included in the home building works contract (see Exhibit 2).
Bruce Construction says that it entered into a fixed price lump sum contract for $400,000 based on plans that had originally been agreed between the Miklavs and another builder. Bruce Construction obtained permission to take ownership of the other builder's plans. Mr Bruce identified the other builder's plans that were the subject of the $400,000 contract as those in Exhibit 1, tab 3 pages 19 - 31 (ts 161, 22 September 2020). This would accord with those plans apparently being prepared for the first Building Licence.
Mr Bruce's evidence as to what was included in the additional works covered by the increase in contract cost from $400,000 to $450,000 was (ts 211 – 213, 22 September 2020):
The inclusions were stated as the last - the last building permit that was issued through Town of Cottesloe the amendments were to lift the driveway from the existing - from the existing [other builder's] plans to roughly around 1200 millimetres high. [The other builder's] plans hadn't really captured the fact that there was a bit of a design fault.
The reconfiguring of the master bedroom downstairs, the internal works to bedroom layouts, the reconfiguration – as it's quite adamant and - and seen in - in the [other builder's] plans for the new design there's a considerable amount of redesign that has been outlined that has been documented. So those items obviously moving into the $50,000 upgrade were then obviously captured and repriced and agreed upon captured all these things inside that contract.
…
So you've got the upgrade in the driveway. You've got the upgrade you've got the upgrade in the planter box. You've got the upgrade in the roof structure. You've got the upgrade into the height that had been built on top of the roof. You've got the cladding that essentially forms part of the roof structure. We have redesign of internal works including window layouts. We have redesign on electrical, plumbing, cabinetry overlays. Essentially the whole project got a redesign from [the other builder's] plans.
When planning approval for the proposed roof terrace was not forthcoming, an amended planning application was made without the roof terrace included. Mr Bruce asserted that the contract was varied to remove the roof terrace but the contract price was not varied (ts 213, 22 September 2020).
The dates of the documents before the Tribunal allow us to determine the relevant timeline. The First Building Licence plans are dated 6 November 2018. The Finishes email was sent to Bruce Construction on 13 November 2018. The Bruce Construction specification addenda is dated 29 November 2011. The fully executed contract was signed in December 2018. At this time the contract price was $450,000. At this time a planning application was made, which was probably lodged in or around December 2018 (having regard to the date of the planning application plans). Mr Bruce explained that the planning application was necessary because of the addition of the roof structure to the contract, which was not included in the other builder's plans.
The parties agree that, because planning approval for the plans which included the roof terrace was not forthcoming in a timely way, the Miklavs requested that the roof terrace be removed. An amended planning application was lodged in or around late March 2018 (without the roof terrace) and those plans are stamped as having received planning approval on 18 April 2019. The Second Building Licence plans are dated April 2019 and the construction plans follow in May 2019.
Although the parties agree that they entered into a contract for alterations and additions as per another builder's plans at a fixed price of $400,000, we have no evidence of a final contract in these terms being entered into. We accept that this was the agreement reached initially between the parties. However, they went on to agree to some changes to the other builder's plans that included the addition of a roof terrace, with the contract price of $450,000. This is the contract which was executed. We are satisfied that the parties entered into a contract for alterations and additions, based on another builder's plans, amended to incorporate a number of agreed changes including the addition of a roof terrace. The plans that reflected that agreement are those attached to the planning application made in or around December 2018.
We are satisfied that the parties agreed to vary the contract after it was executed. This variation was to remove the roof terrace and necessarily related structures from the plans so that planning approval could be achieved in a timely fashion. The varied agreement was for alterations and additions in accordance with the Second Building Licence plans, the structural plans dated April 2019 and the construction plans dated May 2019.
The agreed variation to the contract was not reduced to writing (other than by way of updated plans) and was not signed by the parties. While Mr Bruce asserts that the variation did not involve any reduction in the contract price, we do not accept that this was agreed between the parties. The Miklavs have no recollection of any such agreement and it does not make sense the any owner would agree to the deletion of a portion of agreed works without any commensurate reduction in contract price, particularly in the absence of any documentation or other evidence to support or justify why there would not be such a reduction.
In relation to the specifications and/or finishes that were to be applied under the contract, we make the following findings.
The Tribunal has no evidence of there ever being a list of specifications and/or finishes or a specification addenda that was part of the contract executed by the parties. This aspect of the agreement between the parties may have been impacted by the fact that initially the parties discussed entering into a cost plus contract, and it was only just prior to the executed contract being entered into that the parties agreed to enter into a lump sum contract instead. It seems the Miklavs' bank was not prepared to lend the necessary funds in relation to a cost plus contract.
Bruce Construction was aware of the list of finishes that the Miklavs wanted to be included in the contract as the Finishes email was sent to Mr Bruce on 13 November 2018. Bruce Construction produced a specification addenda later in November 2018 (the 29^th), but even on Mr Bruce's evidence this document was not discussed with the Miklavs, nor was it agreed by them. We accept that one of the items in the Finishes email was changed by agreement (as per the evidence of the Miklavs in relation to the change from a paint finish to a laminate finish on cabinetry) during the negotiations concerning the roof terrace and other additions. However, we have no evidence before us supporting that were as any agreement to any other changes to the Miklavs' desired finishes.
Ordinarily, it might be expected that the final contract included addenda that listed all of the contract specifications and finishes, and these documents are identified as part of the final contract and signed or initialled by all the parties. In this case, there is no evidence that any such addenda were included in the final, executed contract. The contract is unworkable without agreed specifications, given that it is a lump sum contract. We are satisfied that the Finishes email is evidence of what the Miklavs expected to be included in the contract, subject to their agreement to change any of these items before the final contract was entered into. If there had been any evidence that the Miklavs had agreed to the Bruce Construction specification addendum prior to entering into the final contract, we would have found that that was the list of specifications incorporated into the contract. But they were not even shown that document, so how can they have agreed to it? We find that the specifications listed in the Finishes email, having been sent to Bruce Construction and apparently not having been disputed or rejected by it in the contract negotiations except in relation to the finish on the cabinet doors (on the evidence available to us) and therefore it reflects the agreement of the parties.
There is no evidence of any list of provisional sum or prime cost items included in the contract. While there is a bald reference to items that have been allowed for in a 'PS' in the Specification addenda, as stated earlier, we are not satisfied that this was part of the contract agreement between the parties.
Generally, in relation to the list of items alleged by the Miklavs to have been not built but required by the contract, Mr Bruce says that there were items included in the [Second] Building Licence plans that were ultimately not built by Bruce Construction because he was verbally instructed by the applicants to not build them (ts 220 - 221, 225 - 227, 22 September 2020). According to Mr Bruce, this covers the items described in the Miklavs' Scott Schedule as NB-1, NB-4, NB-5, NB-7, NB-8, NB-9 NB-10, NB-11, NB-12, NB-13, NB-14, NB-15, NB-16, NB-17, NB-18, NB-20, NB-31, NB-33, NB-37.
There are no written variations signed by the parties supporting the assertion that the items referred to above were removed from the contract. The Miklavs dispute Bruce Construction's assertion that they were removed upon the agreement of the parties.
The Home Contracts Act requires variations to be in writing and signed by both parties. While we were prepared to accept that the parties in this case did agree to vary the contract between them to remove the planned roof terrace (as referred to above) this was the subject of evidence to the same effect from both parties. The other items submitted by the respondent to have been, in substance, contract variations made by way of oral agreement between the parties, we are not prepared to accept based only on the oral assertion of the Mr Bruce. It was Bruce Construction's obligation to ensure any variations to the contract were in writing and signed by both parties. There is no such documentation.
We are not satisfied that there were any variations to the contract that were agreed by both parties, other than the one unwritten variation made by the parties early in the process referred to above (the removal of the roof terrace).
To the extent that the Miklavs assert that there were items included in the contract that are not reflected in the Second Building Licence plans, the structural plans dated April 2019 and the Construction plans dated May 2019, or contained in the Finishes email, we are not satisfied that there was any final agreement reached between the parties such that those items were incorporated into the contract between them.

Item 2.4.2 cabinetry and shelving in the kitchen, dropzone and master bathroom

The Construction plans show open shelves in the ensuite bathroom in elevation D3 and D6. The cabinetry to be installed in the kitchen is shown in elevations K1 - K7.
We find that all of that shelving and cabinetry was required to be installed under the contract.
Shelving in the dropzone is also individually addressed in item NB-8 of the Miklavs' Scott Schedule. Bruce Construction accepted that this item was not built as required by the contract.
We find that shelving in the dropzone was a requirement of the contract that was not built.

Item 2.5.4 external hardscaping (paving); Item NB-23; Item NB-45

The respondent says that outside hardscaping was not included in the home building works contract.
We are satisfied that hardscaping as specified in the plans was included in the contract.

Item 2.5.8 stormwater drain; NB-34

Mr Petersen explained that the stormwater drain in place does not extend across the entire width of the driveway as that is the only way that the drain can pick up the amount of moisture that would be expected from the topside and from the footpath (ts 184 - 185, 22 September 2020). In Mr Petersons' opinion, the existing drain is inadequate because water is flowing into the neighbour's property.
Mr Bruce stated that the installation of the smaller stormwater drain rather than a strip drain was 'a contractor misinterpretation of the plan': (ts 226 - 227, 22 September 2020). During the hearing, Mr Bruce, on behalf of Bruce Construction accepted that the stormwater drain was in accordance with the contract requirements.
We find that the contract required the installation of a drain the entire width of the driveway. A drain of this type was not installed, and the stormwater drain that was installed is not sufficient to deal with the drainage requirements.

Item 2.6.2 support wall in storage room below planter box not built

The respondent submits that the support wall in the storage room was removed because it became apparent that it would take too much room from the storage space. Mr Bruce says that the Miklavs, upon being made aware of this, agreed to the removal of the support wall. The plans indicate that an existing wall and concrete slab was to be demolished in order to install the new raised garden bed and landscaped entry. Mr Bruce explained that this did not occur because the planter box was shortened by approximately 1500 to 1800 millimetres. It therefore became unnecessary to demolish the concrete slab and existing wall.
There was no evidence to contradict Mr Bruce's explanation and it seems reasonable to us. The Miklavs did not dispute this explanation. We find that the Miklavs did agree to this item not being built. We are not satisfied that the failure to complete these items was a breach of contract in the circumstances.

Item 2.6.5 letterbox; Item NB-21

There is a letterbox shown on the Construction plans on the ground floor plan.
Mr Bruce stated that the letterbox was not built because, after the Building Licence plans were agreed, the Miklavs wanted a different letterbox configuration (ts 225, 22 September 2020). Mr Bruce recalled that he had received a text message from Alexis Miklavs advising that the applicants wanted a change to the letterbox, to remove the one in the plans and install something 'more appropriate to her design' (ts 226, 22 September 2020).
The respondent agrees that the letterbox was not built, and asserted that it was varied and not built as Bruce Construction was waiting for final instructions from the Miklavs on this matter.
We find that the contract required a letterbox to be built and we are satisfied that no letterbox was installed.

Item 2.7.5 chrome tap wear and bathrooms fixtures rather than gold; Item NB - 36

The applicants assert that a finalised schedule of finishes included in the contract was not given to them. The Miklavs say that gold coloured hardware, in particular; gold taps, gold heated towel rails, gold toilet roll holders, gold clips on shower screen, gold floor wastes, gold sink plugs, gold kitchen drawer pull, and gold door knobs, were specified by them in their original contract agreement with Bruce Construction. The Miklavs assert that they 'agreed' to a change of hardware (to something other than gold hardware) only after pressure from Bruce Construction and assertions by Mr Bruce that they could only have the gold hardware if they were willing to pay additional funds above the $450,000 fixed sum contract price.
The finishes list detailed by the Miklavs in the Finishes email to Mr Bruce dated 13 November 2018 includes the Phonenix gold range for all taps and gold hardware throughout.
The respondent's position is that gold hardware was not part of Bruce Construction's contractual obligations because 'that was an agreement by both parties in writing' (ts 227, 22 September 2020). In the respondent's Statement of Issues Facts and Contentions, the respondent says that although the Miklavs indicated a preference for gold hardware, after discussions in May 2018 in relation to potential issues with colour variations and tarnish, the Miklavs agreed to brushed nickel tapware (see Exhibit 1, tab 2, page 6 of 51).
As discussed above, we have found that the Miklavs' requirement for phoenix gold tapware was incorporated into the contract. We are not persuaded that there was an agreed variation of that requirement of the contract.

Items NB-1, NB-4, NB-5, NB-7, NB-8, NB-9, NB-10, NB-11, NB-12, NB13, NB-14, NB-15, NB-16, NB-17, NB-18, NB-20, NB-31, NB-33 and NB-37.

Items NB-1, NB-5, NB-7, NB-9, NB-10, NB-11, NB-13, NB-14, NB15, NB-16, NB-17, NB-18, NB-20, NB-31 and NB-33 are shown on the Construction plans.
We are satisfied that these were required to be installed under the contract.
Item NB-4, display shelving in the minor bedrooms, is not referred to in the contract documents that we have before us. However, Mr Bruce asserts that this was a part of the contract that was subject to a verbal variation to remove it. On this basis, we are satisfied that display shelving in the minor bedrooms was required to be installed under the contract.
We are not satisfied that there was any finalised agreement to vary the contract to remove any of the items that were required to be installed under the contract. The only exception to this is item NB-18, which it was agreed was not required to be installed.

Item NB-37, is also addressed at Item 2.7.3 of the Miklavs' Scott schedule; it relates to smaller sinks. Mr Bird stated that because the sinks are small the water flows and the water splashes everywhere. However, Mr Bird was not able to say whether or not those sinks were specified in the contract and therefore was not able to say whether that was a defect. In his view, the sinks were properly installed.
There is insufficient detail in the contract documents for us to determine what the specification for the sinks to be installed was. We are unable to determine what sinks were required to be installed under the contract and therefore cannot determine if the sinks installed were not those required by the contract.

Item NB-2

There is a floor waste shown in the construction plans for a bathroom that is not the ensuite bathroom. We are satisfied that this was a contractual requirement.
During the hearing, the Miklavs produced a photograph showing that there was no floor waste installed in what they describe as the 'girls bathroom' (the bathroom that is not the ensuite bathroom).
When the Tribunal took Mr Bruce to the Second Building Licence plans (see Exhibit 1, tab 3, page 17), Mr Bruce agreed that the plans indicate that a floor waste is to be installed. When asked why Bruce Construction had not installed any floor waste, Mr Bruce stated that it was an 'oversight' by Bruce Construction (ts 224, 22 September 2020).
We are satisfied that this item was not built as required by the contract.

Item NB 24 to Item NB 30 (roof terrace)

Mr Bruce asserts that items NB-24 to NB-30 were items that were not given planning approval by the Cottesloe City Council and therefore could not be built (ts 221 - 226, 22 September 2020). As stated earlier in these reasons, we are satisfied that the Miklavs instructed Bruce Construction to remove the roof terrace aspect of the plans in order to facilitate the timely continuation of the build. However, the respondent required the Miklavs to pay the full contract amount (minus some agreed adjustment relating to some rental expenses). As we have stated previously, we are not satisfied that the variation included any agreement that there would be no reduction in cost despite the removal of some building works.
The cost of these works removed should have been benefitted to the Miklavs in the calculation of the final amount owed by the Miklavs under the contract.

Item NB-38 shower wall

During the hearing, it was identified that the issue in dispute in this item was the fact that the Building Licence plans specify a framed internal wall on one side of the shower and instead the shower is fully enclosed with glass. Instead of a framed wall a glass enclosure on one side has been installed.
It was put to Mr Bruce by the Tribunal that it would have cost more to install a glass enclosure than to build a framed wall. Mr Bruce agreed, and stated that this was a change made at the request of the Miklavs (ts 229, 22 September 2020).
The applicants clarified that they are not dissatisfied that the shower is fully enclosed by glass, however the shower leaks and they believe that this is caused, in part by the glass screen that has been installed instead of an internal framed wall.
Mr Bruce stated (ts 230, 22 September 2020):
Like, in my - in my experience, that is - it's a fixed piece that's hanging off two - a glass nib. If there's obviously discretion in both sides all it needs is an added clip next to it, which is a - basically plugs your water inside the shower. 99 per cent of the time you always - you cannot 100 per cent stop water coming out of a shower, especially with frameless.
We are satisfied that the contract required the installation of a wall and not a shower screen. However, the glass screen installed was more expensive than the required wall. The Miklavs' complaint is that the shower cannot be used because of the overall lack of drainage. We have found that a drain in the bathroom should have been installed. In that context, we are not persuaded that this item, the glass shower wall, should be required to be remedied.

Item NB-39

During the course of the hearing, Mr Bruce, on behalf of Bruce Construction, accepted that the edging around the master bathroom vanity is 'a defect' for which Bruce Construction accepts liability (ts 230, 22 September 2020).
We are satisfied that this item was not built as required by the contract.

Item NB-40

The complaint referred to in this item is that the downstairs hallway linen press doors installed are white laminate when they should be white wood grain to match the rest of the cabinetry.
Mr Bruce says that the Miklavs agreed to this change while at site. He says that he took the Miklavs through the 'cabinetry overlays' and they agreed; they signed off on the cabinetry overlays (ts 230 - 231, 22 September 2020). Neither party was able to refer the Tribunal to the 'cabinetry overlays'
We are not satisfied that this item was required by the contract.

Item NB-41

The allegation is that there is not tiling around the fireplace, which is alleged to be required by the contract.
The respondent says that the fireplace is a face fixed fireplace that cannot have tiling against it. Mr Bruce says that the Miklavs provided a fireplace to be installed which Bruce Construction were to install. As the fireplace provided is a zero clearance fireplace that allows the fireplace to sit flush against the finished surface it does not require tiling around it.
There is no evidence contrary to Mr Bruce's evidence that the fireplace, provided by the Miklavs, was one designed to flush with the finished surface. The Finishes email does not provide for any finish around the fireplace. We have not been able to identify anything on any of the contract plans that show that tiling around the fireplace was to be installed.
We are not satisfied that this item was required to be installed under the contract.

Item NB-42

The Miklavs explained that this item refers to an island that was part of the original contract that had wheels and drawers in it. They assert that 'due to monetary pressure' from Mr Bruce, the Miklavs designed another island that was cheaper to build (ts 232, 22 September 2020). The applicants submit that they ought to have been credited an amount to be given back to them to reflect this.
Mr Bruce says that there was a verbal agreement on site where it was agreed to change the island bench. The respondent disputes that the substituted island involved any cost reduction.
The construction plans show an island bench with a 'breakfast bar overhang'. On one side under the bench top open shelves are depicted and there are two sets of three 'utility drawers' shown on the other side of the island bench.
We are not satisfied that the island bench was not built in accordance with the contract requirements.

Item NB-44 driveway

The Miklavs submit that the contract required a driveway made of exposed aggregate.
The Construction plans have a notation on the ground floor plan under the word drive 'ex agg conc'. We are satisfied that this notation means exposed aggregate concrete.
The Miklavs say that, at a late stage, when they felt under pressure for the works to be completed, Bruce Construction changed the driveway to a concrete driveway. Mrs Miklavs was shown a concrete driveway at a residence in Cottesloe, and she agreed to a change of the same type. However, the Miklavs say that the driveway installed does not in any way resemble the example Mrs Miklavs was shown.
We accept that Mrs Miklavs' agreement to the change in the driveway specification was given under a number of pressures, including the time the building works had taken to that date and the imminent return of her, then, very unwell, husband.
Mr Bruce says that it was agreed verbally to change the driveway from exposed aggregate to concrete.[28]
[28] ts 233, 22 September 2021.
We find that the contract requirement was for the driveway to be made of exposed aggregate concrete. There was no variation to change that requirement made in writing, signed by both parties.
We find that Mrs Miklavs did agree to the change, but her agreement was for a product similar to the one shown to her. In addition, her agreement was given in a context of her not understanding what a lump sum contract meant, that any variation she agreed to, if it involved a reduction in specification, should result in a credit being shown in the final contract price adjustment.
We accept that the driveway constructed by Bruce Construction is not in substance similar to the one to which Mrs Miklavs agreed.
In the context where the builder did not fulfil the obligations in relation to variations imposed by the Home Contracts Act, where the builder has not constructed a driveway of the standard that was verbally agreed to, and where the builder made no effort to credit the owners for an agreed downgrade in specifications, we are not persuaded that we should find that Bruce Construction was not required to install the driveway required by the contract.
We find that the driveway was required by the contract to be exposed aggregate concrete and a driveway of that type has not been installed.

Item NB-46

The Miklavs say that the back boundary was meant to be infilled with breeze blocks. Bruce Construction submits that is outside of the scope of the contract. Bruce Construction installed a metal fencing.
The Miklavs are not able to point to anything in the plans that shows this was required. They say it was a verbal agreement, which should have been on the plans.
The respondent maintained at the hearing that there was no requirement to install breeze blocks in the contract. Mr Bruce said that 'out of good faith we infilled it for safety reasons on behalf of the client' (ts 235, 22 September 2020).
There is nothing on the Construction plans that shows that any work in relation to the back boundary fence is included.
We are not satisfied that Bruce Construction had any contractual obligation to provide a back boundary wall with breeze block infill.

Remedy

Building remedy order

We are satisfied that there are a number of items of work that Bruce Construction have not carried out in a proper and proficient manner or are unsatisfactory. We consider that we should deal with the Miklavs complaint by making a building remedy order.
The Miklavs submit that the Tribunal should make a building remedy order that requires the payment of an amount of money to be paid by the respondent, with the amount of money being the amount it would cost them to have a third party carry out the remedial works. They have provided quotes for remedial work; one produced by Minchin & Sims, one by ICS Australia Building Services Group and a quote in relation to the Terrazzo tiles by Nanoworx.
The respondent submits that it was prevented from finishing the building works because the Miklavs unreasonably prevented them from doing so. It submits that any building remedy order made by the Tribunal should require Bruce Construction to carry out remedial work rather than the payment of any money to the applicants. Bruce Construction says that it would not have cost it anything to carry out that remedial work, other than the cost of supervising the 'trades' who it would organise to remediate their works.
Bruce Construction did not provide any alternative costings for works admitted to require remedial work or in relation to any of the other items. We do not accept Mr Bruce's evidence that it would not cost Bruce Construction anything to carry out remedial works at this stage, some considerable time after the company was last at the site.
The Miklavs say that do not have any confidence in Bruce Construction and do not wish to allow them back onto their property. It is not for the Miklavs to elect the type of building remedy order that the Tribunal makes, however their preferences are relevant.
Bruce Construction's preference to be ordered to carry out remedial work, rather than be required to make a monetary payment, is also relevant to us.
Having seen the degree of distress the Miklavs experienced when dealing with Bruce Construction's representative in the course of the Tribunal hearing, and to a lesser degree, as reflected in the communications between the parties, and to the Tribunal, in the course of the proceedings, we have determined that we should not make a building remedy order requiring Bruce Construction to carry out remedial work.
We have decided that we should make a building remedy order that Bruce Construction pay the Miklavs a specified amount.
The Minchin & Sims quote for remedial works for the matters which we have found to be defective amount to $23,160. This does not include any quote for the repair of grouting to the Terrazzo tiles.
The ICS quote for the same matters amounts to $28,166. This amount does not include the amount in the ICS quote in relation to Terrazzo tiles. We do not include this because the quote relates to a number of matters including drummy tiles. We are not satisfied that it correlates sufficiently to our findings in this matter in relation to the Terrazzo tiles.
The Nanoworx quote to cut out grout lines and re-grout and to grind chipped tiles is $20,306. As discussed earlier in these reasons, this quote provides for an epoxy grout to be used, which is a higher level of specification than agreed to in the Miklavs' contract. Having regard to the difference in cost of using the epoxy grout that we were told, we consider that a sum of $15,000 is an approximation of the quote without epoxy glue.
We are satisfied that the building remedy order should require Bruce Construction to pay the Miklavs an amount that equates to the quote from Minchin & Sims for the remedial work in addition to the Nanoworx quote as adjusted by us. We have used the Minchin & Sims quote because we think that quote is effectively corroborated by the ICS quote. Mr Peterson gave evidence that the ICS quote was made on the basis of carrying out each item of remedial work separately. He advised the Tribunal that if works were carried out together the total amount of the quote would be reduced.
We will make a building remedy order requiring Bruce Construction to pay to the Miklavs the total amount of $38,160.

HBWC remedy order

In relation to the contractual dispute, the applicants submit that a HBWC order should be made that requires the payment of an amount of money to them by the respondent.
As can be seen from the table below, Mr Bird's quote in relation to the items not built under contract, excluding those items that were not referred or that we are not satisfied constitute a breach of contract amounts to $30,275.[29] This total also excludes items NB-24 to NB-30 as these relate to the variation of contract to remove the roof terrace.
[29] This amount reflects the total of Mr Bird's quote for items NB-1, NB-2, NB-4 to NB-11, NB-13 to NB-21, NB-23, NB-31 to NB-34, NB-44 to NB-45. Note for item NB-9 we have allowed the full $3,000 amount.
The ICS quote for the contract items that we have found were not built but should have been (excluding the roof terrace) amounts to $44,976. Mr Peterson[30] made it clear that he had priced each item individually, and that if the works were carried out together, this would very likely result in an overall reduction in price. We think this reasonably explains the small difference between the ICS quote and the Minchin & Sims quote in relation to the contractual items.
[30] Who provided the ICS quote.
We are satisfied that it is reasonable in the circumstances to require Bruce Construction to pay to the Miklavs in accordance with Mr Bird's quote for the contract breaches.

Roof terrace

Mr Peterson priced the roof terrace works at $69,680 to provide on a remedial basis. We do not think it is reasonable to require Bruce Construction to make payment to the Miklavs on that basis, as we have accepted that they agreed to the contract variation. On their evidence, the contract never included an amount more than $50,000 to reflect the roof terrace works.
Mr Bird quoted the roof terrace works at $45,454, based on what he assumed to have been the contract allowance for those works. The contract amount which was originally discussed as $400,000, changed to $450,000 to reflect the final agreement. Of that amount, 10% reflected goods and services tax.
We accept Mr Bruce's evidence that there were some other changes to the original builder's plans that accompanied the addition of the roof terrace. Mr Bruce asserted that the removal of the roof terrace did not reduce the contract price at all. As we have discussed earlier, we do not accept that.
The timing of the discussions between the parties, and the changes from the original agreement to build, the other builder's plans at a cost of $400,000 to the final contract agreement at the fixed price of $450,000 was short. From the Miklavs' perspective, the increase in cost to $450,000 from $400,000 was because of the addition of the roof terrace.
Bruce Construction did not cause the variation to be reduced to writing and signed by both parties. It breached provisions of Pt 2 of the Home Contracts Act in failing to do so.
Bruce Construction did not advise the Miklavs how the variation to remove the roof terrace would impact the contract price. Bruce Construction did not put forward any evidence from which we can make any realistic assessment of the amount of credit that should be given for the removal of the roof terrace, if it was not the same as the amount the contemplated contract price was changed when the roof terrace was added.
In those circumstances, we consider that it is reasonable to include in a HBWC remedy order that Bruce construction pay to the Miklavs $45,454.
We are satisfied that we should make a HBWC remedy order requiring Bruce Construction to pay to the Miklavs a total of $75,729, being $45,454 plus $30,275.

Orders

The Tribunal orders:
1.Pursuant to s 38 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), the Tribunal makes the following building remedy order, in accordance with s 36(1)(b):
(a)On or before 30 April 2021 the respondent must pay the applicants, the costs of carrying out remedial work, being the sum of $38,160.

2.Pursuant to s 43 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), the Tribunal, being satisfied that such an order is justified, makes the following HBWC remedy order:
(a)On or before 30 April 2021 the respondent must pay the applicants, by way of compensation, the sum of $75,729.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS L EDDY, SENIOR MEMBER
7 APRIL 2021