MORALEE and FULLARTON - [2021] WASAT 148

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   MORALEE and FULLARTON [2021] WASAT 148
MEMBER:   MS C CONLEY, MEMBER
MR D MOROLLA, SESSIONAL MEMBER

HEARD:   25 OCTOBER 2021
DELIVERED          :   25 NOVEMBER 2021
FILE NO/S:   CC 1110 of 2021
BETWEEN:   GLEN MORALEE
Applicant
AND
NICHOLAS FULLARTON
Respondent

Catchwords:

Building remedy order - Failure to comply with order for remedial works - Revocation and building remedy order for remedying the building service - Making of new building remedy order for payment of costs of remedying the building service

Legislation:

Building Services (Complaint Resolution and Administration Act 2011 (WA), s 36, s 51
State Administrative Tribunal Act 2004 (WA), s 63

Result:

Application successful in part

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	Non-Appearance

Solicitors:

Applicant	:	N/A
Respondent	:	N/A

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

In 2020 the applicant engaged the respondent to renovate the wet areas of his house in Kelmscott for the sum of $9,667.50. The building services were set out in an invoice dated 14 April 2020.[1] The building services were commenced but not completed by the respondent.
[1] Exhibit 2.
The applicant lodged a complaint with the Building Commissioner in respect of the building services provided by the respondent.
On 19 January 2021 Building Remedy Order 02020-1604 (Building Remedy Order) was made by the delegate of the Building Commissioner. The Building Remedy Order required the respondent to undertake remedial works in respect of complaint items 1-13, 15-16, 19-21 within 28 days of the date of the order.[2]
[2] Exhibit 1 at pages 148-153.
The respondent did not comply with the Building Remedy Order.
On 16 February 2021 the applicant lodged an application with the Building Commissioner under s 51 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (Act) seeking a monetary order because the respondent had not complied with the Building Remedy Order.
On 13 July 2021 the Building Commissioner applied to transfer the matter to the Tribunal under s 55 of the Act.[3]
[3] Exhibit 1 at pages 158-164.
On 10 August 2021 the Tribunal consented to the transfer of the matter.[4]

Issues for determination

[4] Exhibit 1 at page 6.

The issues for determination by the Tribunal are:
a)whether the respondent has failed to comply with the Building Remedy Order in whole or in part; and
b)whether the Tribunal should revoke the Building Remedy Order and make a new building remedy order under s 36(1)(b) or (c) of the Act and, if so, what the amount of the order should be.

Tribunal proceedings

The respondent did not appear at the mediation held on 8 September 2021 or the directions hearing held on 12 October 2021.
Written notice of the hearing was sent to the respondent by email on 13 October 2021 and by post in accordance with s 63(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
The respondent did not attend the hearing held on 25 October 2021. In accordance with s 63(2) of the SAT Act, the hearing was held in the absence of the respondent.
The evidence which we will refer to in the determination of this application is documentary evidence filed by the applicant or accepted into evidence at the hearing and the oral testimony of the applicant at the hearing.
Legislative framework
Section 36 of the Act provides:
(1)A building remedy order consists of one of the following
(a)an order that a person who carried out a regulated building service remedy the building service as specified in the order;
(b)an order that a person who carried out a regulated building service pay to an aggrieved person such costs of remedying the building service as the Building Commissioner or State Administrative Tribunal, as the case requires, considers reasonable and specifies in the order;
(c)an order that a person who carried out a regulated building service pay to an aggrieved person a sum of money specified in the order to compensate the aggrieved person for the failure to carry out the building service in a proper and proficient manner or for faulty or unsatisfactory building work.
(2)A building remedy order may require that the order be complied with within a time specified in the order.
(3)A person who is not a building service contractor may arrange for a building service to be carried out for the purpose of compliance by that person with a building remedy order referred to in subsection (1)(a) despite the Building Services (Registration) Act 2011 section 7.
The effect of s 51 of the Act is that if the Tribunal is satisfied that a building remedy order made under s 36(1)(a) of the Act has not been complied with, or has been complied with in part only, by the person to whom it was given, then the Tribunal may do two things. First, the Tribunal may revoke the order in relation to remedying the building service in whole or in part. Second, the Tribunal may make a building remedy order referred to in s 36(1)(b) or (c) in relation to that building service.

Non-compliance with the Building Remedy Order

At the hearing, the applicant gave evidence that none of the items in the Building Remedy Order had been remedied by, or on behalf of, the respondent.[5] The applicant also gave evidence that he had engaged tradespeople to complete some of the work but they were still unable to live in the home.
[5] ts.9, 25 October 2021.
We are satisfied and find that, on the evidence given by the applicant, the respondent has not complied with the Building Remedy Order.

Revocation of the Building Remedy Order and making of new order

Given our finding in [16] that the Building Remedy Order has not been complied with, we have decided that it is appropriate to revoke the Building Remedy Order and make a new building remedy order under s 36(1)(b) of the Act.
However, for the reasons set out in [71]-[73] below, the revocation does not apply to the compensation order in the sum of $33.14 contained in the Building Remedy Order.

Reasonable costs of remedying the building service

Pursuant to section 36(1)(b) of the Act, the Tribunal may only make a building remedy order in respect of the costs of remedying the building service which the Tribunal considers reasonable.
The applicant provided the Tribunal with a number of receipts, estimates, quotes or invoices in respect of costs for remedying the building services referred to in the building remedy order. The applicant had also previously provided the Building Commissioner with quotes.[6]
[6] Exhibit 1 at pages 140-147.
We have considered each complaint item in the Building Remedy Order and the costs claimed by the applicant. In some cases, complaint items have been grouped together for convenience.

Complaint items 1, 15, 16, 20 and 21

Complaint item 1 of the Building Remedy Order concerned a complaint in relation to the tiling to the walls and floor in the bathroom, toilet, laundry and bedroom. The action required of the respondent was to remedy the tiling by removing all tiles found to be defective and relaying them in accordance with AS 3958.1-2007.
Complaint item 15 of the Building Remedy Order concerned a complaint in relation to the screeding of the floors in the bathroom, toilet and laundry not being at the correct heights and slopes. The action required of the respondent was to remedy the falls so they met AS 3958.1 and to remove all builder's rubble from the site.
Complaint item 16 of the Building Remedy Order concerned a complaint in relation to the floor waste in the laundry not being at the correct height. The action required of the respondent was to remedy the floor waste in the laundry so that it was level with the adjacent tiles.
Complaint item 20 of the Building Remedy Order concerned a complaint about the failure to use epoxy grout in the shower as agreed. The action required of the respondent was to remedy the grout in the bathroom by removing the unwanted grout and replacing it with an epoxy grout as contracted.
Complaint item 21 of the Building Remedy Order concerned a complaint about the bathtub tiling. The action required of the respondent was to remedy the tiling by removing all tiles that were found to be defective and relaying them in accordance with AS 3958.12007.
During the hearing, the applicant referred to the following:
a)a tax invoice from Archijino Tiling Pty Ltd dated 15 July 2021 for $12,428.77[7] (including GST) for:
[7] ts 41, 25 October 2021 and Exhibit 9.
i)tiling in the bathroom, toilet, laundry and small room at a cost of $9,878; and
ii)materials (screed, silicon, waterproof glue, floor tiles and epoxy) at a cost of $2, 550.77;
b)a tax invoice from Craft Décor dated 30 June 2021 for $700.55 for wall tiles and their delivery to the applicant;[8]
c)an order confirmation from Coastal Waste Management dated 11 June 2021 for $345 for a skip bin;[9] and
d)tax invoices from Tradelink dated 14 June 2021 for $100.78 for two wastes;[10]
e)a quote from Alsoma Homes Bathroom Renovations dated 5 July 2021 for $875 for the carcass for a new vanity;[11] and
f)a tax invoice from Bunnings dated 19 April 2020 for $134 for a bathtub.[12]
[8] ts 41, 25 October 2021 and Exhibit 10.
[9] ts 41, 25 October 2021 and Exhibit 11.
[10] ts 44, 25 October 2021 and Exhibit 12.
[11] Exhibit 1 at page 166.
[12] ts 46, 25 October 2021 and Exhibit 13.
The applicant had provided the Building Commissioner with a quote from Build, Construct, Renovate Pty Ltd dated 25 March 2021 for the main bathroom upgrade and the laundry renovation.[13] The items in the quote which relate to complaint items 1, 15, 16, 20 and 21 amount to $15,975 ($16,134.50 including GST).
[13] Exhibit 1 at pages 140-142.
The applicant had also provided the Building Commissioner with a quote from Division 1 Projects.[14] The items in the quote which relate to complaint items 1, 15, 16 and 20 amount to $ 9,650 ($10,675 including GST).
[14] Exhibit 1 at pages 143-147.
During the hearing, the applicant gave evidence that the works in complaint items 1, 15, 16, 20 and 21 had been undertaken.
The applicant also gave evidence that Archjino Tiling Pty Ltd had purchased floor tiles on his behalf because it was able to get a trade discount. However, the applicant purchased the wall tiles from Craft Décor because Archjino Tiling Pty Ltd could not beat the price quoted.
We accept the tax invoice from Archjino Tiling Pty Ltd as it covers the scope of works in complaint items 1, 15, 16, 17 and 21. We consider that the cost of $12,428.77 is reasonable given that the tiles installed by the respondent had to be removed and this quote was less expensive than the quote from Build, Construct, Renovate Pty Ltd. The quote was also comparable to the quote from Division 1 Projects although it is noted that the latter quote did not include any amount for complaint item 21.
We accept the tax invoice from Craft Décor dated 30 June 2021 as it covers the cost of floor tiles for works in complaint item 1 and their delivery. We consider that the cost of $700.55 is reasonable given that Archjino Tiling Pty Ltd could not beat the price quoted.
We accept the tax invoice from Coastal Waste Management dated 11 June 2021 as it covers the cost of a skip bin for the removal of rubble necessitated by carrying out the works in complaint items 1, 15, 16, 17 and 21. We consider that the cost of $345 is reasonable given that the cost of the skip was less than the cost of removing waste from the site in the quote from Build, Construct, Renovate Pty Ltd (a total of $1, 221 including GST).
We accept the tax invoices from Tradelink dated 14 June 2021 as they cover the cost of two wastes for works in complaint item 19. We consider that the cost of $100.78 is reasonable given that this is what the applicant paid for the wastes at Tradelink and there was no evidence that the costs were unreasonable.
The applicant gave evidence that:
a)in the process of the tiles being redone, the vanity had to be removed;[15]
b)the vanity had been liquid-nailed to the wall by the respondent and it was not able to be removed without being wrecked;[16]
c)the tiling needed to be removed from around the acrylic bathtub but the tilers were unable to remove all the tiles without damaging the acrylic bathtub so the applicant had to purchase a new one;[17] and
d)he had purchased a new metal bathtub but was only asking for what he paid for the original acrylic bathtub.[18]
[15] ts 20, 25 October 2021.
[16] ts 19-20, 25 October 2021.
[17] ts 45, 25 October 2021.
[18] ts 45, 25 October 2021.
We consider that, given that the vanity and bathtub were damaged during works being undertaken to redo the tiling, that this is a cost associated with complaint items 1 and 21.
It is apparent from an examination of an email to Alsoma Homes Bathroom Renovations from the applicant dated 4 July 2021[19] that the applicant obtained a quote for the carcass of the vanity since he had salvaged the bench top, the doors with hinges and handles, the end panels, drawers and runner.
[19] Exhibit 1 at page 166.
We accept the quote from Alsoma Homes Bathroom Renovations dated 5 July 2021 for the carcass for a new vanity. We consider that the cost of $875 is reasonable especially in light of the salvage of those parts of the vanity that had not been damaged during the removal of the tiles.
We accept the tax invoice from Bunnings dated 19 April 2020 for $134 for the bathtub. We consider that the cost of $134 is reasonable since this is what the applicant paid for the original bathtub and the applicant was not seeking the cost of the more expensive replacement bathtub.

Complaint item 2

Complaint item 2 of the Building Remedy Order concerned a complaint about the failure to replace a cornice in the bathroom. The action required of the respondent was to remedy the cornice so that it matched, as far as practicable, the existing cornices of the house.
The original contract price for the supply and installation of the cornice was $170.[20] However, the cornice was never supplied or installed.
[20] Exhibit 2, item 12.
The applicant referred to complaint item 2 in an undated quote from Division One Projects for $800 plus GST ($880).[21] That item referred to the supply and installation of a new cornice in the bathroom to match other rooms.
[21] ts 10-11, 25 October 2021 and Exhibit 1 at pages 143-147.
The applicant had previously submitted a quote to the Building Commissioner from Build, Construct, Renovate Pty Ltd dated 25 March 2021.[22] Included in that quote was the cost of the installation of a new cornice in the amount of $740 (exclusive of GST).
[22] Exhibit 1 at pages 140-142.
We accept the quote from Division One Projects as it covers the scope of works in complaint item 2. We consider that the cost of $880 is reasonable given that the quote from Build, Construct, Renovate Pty Ltd was for the installation of a new cornice and was not stated to include the supply of the cornice.

Complaint items 3 and 19

Complaint item 3 of the Building Remedy Order concerned a complaint about the non-completion of the vanities, benchtops, sinks, taps and drainage. The action required of the respondent was to complete the contracted works stated on invoice No 012-19/20 dated 24 April 2020.
Complaint item 19 of the Building Remedy Order concerned a complaint about the incorrect installation of the waste from one of two basins in the bathroom. The action required of the respondent was to remedy the installation of the basins by a licensed plumber installing them.
The applicant referred to complaint item 3 in an undated quote from Division One Projects for $4,000 plus GST ($4,400).[23]
[23] ts 10-13 and 44-45, 25 October 2021 and Exhibit 1 at pages 143-147.
We accept item 3 of the quote from Division One Projects as it covers the scope of works in complaint items 3 and 19. We consider that the cost of $4,400 is reasonable in the absence of any evidence to the contrary.

Complaint item 4

Complaint item 4 of the Building Remedy Order concerned a complaint about damage to the new benchtops. The action required of the respondent was to remedy the bathroom and laundry benchtops so they were free from scratches and chips.
The applicant referred to a quote from eKitchens dated 16 April 2021 for $1,051.00 (including GST) for replacement benchtops.[24]
[24] ts 24, 25 October 2021 and Exhibit 5.
We accept the quote from eKitchens as it covers the scope of works in complaint item 4. We consider that the cost of $1,051.00 is reasonable in the absence of any evidence to the contrary.

Complaint item 5

Complaint item 5 of the Building Remedy Order concerned a complaint about the non-completion of plumbing and electrical work, including new power points. The action required of the respondent was to complete the contracted works stated on invoice No 012-19/20 dated 24 April 2020.
The applicant referred to two quotes: first, a quote dated 26 March 2021 from WA Electrical and Security for $197.13 plus GST ($216.84);[25] and second, item 5 in an undated quote from Division One Projects for $500 plus GST ($550).[26]
[25] ts 15, 25 October 2021 and Exhibit 4.
[26] Ts 10- 11, 25 October 2021 and Exhibit 1 at pages 143-146.
We accept the quote from WA Electrical and Security as it covers the scope of works in complaint item 5. We consider that the cost of $216.84 is reasonable because the quote from WA Electrical and Security is less expensive than both the contracted sum of $300[27] and item 5 of the quote from Division One Projects.
Complaint item 8
[27] Exhibit 2, item 5.
Complaint item 8 of the Building Remedy Order concerned a complaint about the destruction of two sets of mirrors and damage caused to a set of mirrors through incorrect installation. The action required of the respondent was to remedy the mirrors and surrounding tiles so they were free from any damage.
The applicant gave evidence about the sets of mirrors. The applicant said that three sets of mirrors had been damaged because the respondent had used liquid nails which ate through the backing of the mirrors.[28]
[28] ts 27-30, 25 October 2021.
The applicant also gave evidence that he had replaced the third set of mirrors with one mirror.[29]
[29] ts 27-30, 25 October 2021.
The applicant referred to a quote from Armadale Glass dated 5 July 2021 for $450 (including GST) for the supply and installation of a mirror to replace the third set of mirrors and a receipt from Bunnings in the amount of $211[30] for the two other sets of mirrors.
[30] ts 30, 25 October 2021 and Exhibit 6.
We accept the quote from Armadale Glass. We consider that the quote is reasonable because the cost of the original mirrors was in the amount of $211 and the quote also includes the cost of installation.
We do not accept the receipt from Bunnings in the amount of $211 which relates to the first two sets of two mirrors. This is because complaint item 8 was confined to remedying the third set of mirrors installed by the respondent and not the cost of replacement of two sets of mirrors which the third set of mirrors replaced.

Complaint item 9

Complaint item 9 of the Building Remedy Order concerned a complaint about render having falling off walls in the living room/kitchen area due to work on the other side of the wall (in the shower). The action required of the respondent was to complete the contracted works stated on Invoice No 012-19/20.
The applicant did not provide any quotes in relation to complaint item 9. Further, and in any event, Invoice No 012-19/20 did not require the respondent to undertake any works in respect of the living room/kitchen area. Accordingly, we do not make any allowance for these costs.

Complaint item 10

Complaint item 10 of the Building Remedy Order concerned a complaint about the entire inside of the house being extremely dusty and dirty. The action required of the respondent was to remedy the cleaning of the property.
The applicant referred to an estimate dated 27 July 2021 from Fresh Aire Carpet Cleaning of $431.75 (including GST) for the cleaning of three bedrooms and hallway and the cleaning of tiles in the kitchen, living and entry.[31] The estimate was itemised as $200 for the cleaning of four carpets by hot water extraction and $192.50 for the cleaning of the tiles and GST in the sum of $39.25.
[31] ts 33-34, 25 October 2021 and Exhibit 7.
We accept the estimate from Fresh Aire Carpet Cleaning as it covers the scope of works in complaint item 10. We consider that the cost of $431.75 is reasonable having regard to the number of rooms to be cleaned and the absence of any evidence to the contrary.

Complaint item 12

Complaint item 12 of the Building Remedy Order concerned a complaint about damage to a wooden door frame. The action required of the respondent was to remedy the damage to the door frame sill to the laundry.
The applicant referred to a quote dated 24 April 2021 from Door Installation Perth for 'aprox $1150' (sic).[32] The quote includes the cost of: cutting out the old door frame and installing a new frame and trim; a new solid flush external door, weather seal on the bottom and hinges.
[32] ts 34-35, 25 October 2021 and Exhibit 8.
The applicant gave evidence that he had tried to get a few quotes from carpenters and that he had been told to replace the whole frame.[33] The applicant also gave evidence that he had been told that he could not fit an old door in the new frame and that he would need a new door.[34]
[33] ts 35, 25 October 2021.
[34] ts 38-39, 25 October 2021.
We do not accept that the quote from Door Installation Perth is reasonable. This is because the quote includes items beyond the scope of works required in respect of complaint item 12. Further, the quote is not itemised so it is not possible to separate out the cost of replacement of the sill of the door frame. Accordingly, we do not make any allowance for these costs.

Complaint item 19

Complaint item 19 also required the respondent to pay the complainant the sum of $33.14 as compensation for the basin wastes purchased by the applicant. This was an order made under s 36(1)(c) of the Act.
The order for the payment of the sum of $33.14 for the basin wastes purchased by the applicant cannot be revoked under s 51 of the Act. This is because s 51 only applies to orders made under s 36(1)(a) of the Act.
If the applicant wishes to enforce the compensation order made in respect of complaint item 19, then the applicant will need to take enforcement action under s 85 of the Act.

Complaint items 6, 7, 11 and 13

The applicant indicated at the hearing that he did not wish to pursue complaint items 6, 7, 11 and 13. Accordingly, we make no allowance in respect of these complaint items.

Conclusion

We will revoke the Building Remedy Order except for the compensation order in the sum of $33.14 made in respect of complaint item 19.
We will make a new building remedy order that the respondent pays the applicant the sum of $22,013.69 for the costs of remedying the building services. The sum of $22,013.69 is made up as follows:

Complaint items in Building Remedy Order	Relevant exhibit or other document	Cost (including GST)
Complaint items 1, 15, 16, 20 and 21	Exhibits 9, 10, 11 and 12 and Exhibit 1 at page 166	$14,584.10
Complaint items 2	Item 2 in Exhibit 3	$880
Complaint items 3 and 19	Item 3 in Exhibit 3	$4,400
Complaint items 4	Exhibit 5	$1,051.00
Complaint items 5	Exhibit 4	$216.84
Complaint items 6	Not pursued
Complaint items 7	Not pursued
Complaint items 8	Exhibit 6	$450
Complaint items 10	Exhibit 7	$431.75
Complaint items 11	Not pursued
Complaint items 12	No costs allowed
Complaint items 13	Not pursued
Complaint items 15	Covered by Complaint item 1
Complaint items 16	Covered by Complaint item 1
Complaint items 19	Covered by Complaint item 3
Complaint items 20	Covered by Complaint item 1
Complaint items 21	Covered by Complaint item 1
TOTAL $22,013.69

Orders

The Tribunal makes the following orders:
1.Pursuant to s 51(2)(a) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) the building remedy order made on 19 January 2021 (Building Remedy Order 02020-1604) is revoked, except for the compensation order in the sum of $33.14 made in respect of item 19.
2.Pursuant to s 51(2)(b) and s 36(1)(b) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), the respondent shall pay the applicant the sum of $22,013.69 within 14 days.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS C Conley, MEMBER
25 NOVEMBER 2021