NORTHCOTT and REALGOLD CORPORATION PTY LTD (ACN 117 580 560) - [2020] WASAT 72

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   NORTHCOTT and REALGOLD CORPORATION PTY LTD (ACN 117 580 560) [2020] WASAT 72
MEMBER:   DR B MCGIVERN, MEMBER
MR P MARSHALL, SESSIONAL MEMBER

HEARD:   26 MAY 2020
DELIVERED          :   7 JULY 2020
FILE NO/S:   CC 166 of 2020
BETWEEN:   PETER NORTHCOTT
First Applicant
GILLIAN PATRICIA NORTHCOTT
Second Applicant
AND
REALGOLD CORPORATION PTY LTD (ACN 117 580 560)
Respondent

Catchwords:

Whether regulated building service is 'faulty or unsatisfactory' - Statutory construction - Objectively determined - Respondent contracted to supply and install full depth colour concrete crossover - Deviation in colour from colour swatch - Significant deviation from specified colour objectively faulty or unsatisfactory

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5, s 5(1), s 5(1)(a), s 5(2), s 9, s 11(1), s 36, s 36(1), s 38, s 38(1), s 38(1)(a), s 41, s 43(1)
Home Building Contracts Act 1991 (WA), s 3(1), s 9, s 11, s 17, s 17(a)(i), s 20, Sch 1, cl 5, Pt 2
Home Building Contracts Regulations 1992 (WA), reg 2A

Result:

Application allowed

Category: B

Representation:

Counsel:

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

Solicitors:

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

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

Commissioner of Police v Thayli Pty Ltd [2020] WASC 43
Diploma Construction (WA) Pty Ltd v South Central WA Pty Ltd [2015] WASC 289
Gemmill Homes Pty Ltd v Sanders [2018] WASC 179
Waldron and Afra Construction Pty Ltd [2013] WASAT 207

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

This matter is a complaint referred to the Tribunal from the Building Commission under s 11(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act).
The dispute concerns works carried out under a contract (Contract) between Peter Northcott and Gillian Patricia Northcott (applicants), and Realgold Corporation Pty Ltd trading as Repave Spray-On Paving (respondent). The Contract is evidenced in writing by the respondent's written quote and work order No. 6943 (Work Order), accepted by the applicants on 1 May 2019, to supply and install a coloured concrete crossover (Crossover) to run between the street and the existing driveway at the applicants' property at 166 Grantham St, Floreat (Property), for an amount of $4,500.
The applicants lodged a complaint with the Building Commission on 14 October 2019, which was accepted by the Building Commissioner's delegate on 28 October 2019 (Complaint). The single item of complaint is, in essence, that the Crossover installed by the respondent is of a different colour to that chosen by the applicants and specified in the Contract.
The Complaint was referred by the Building Commission to the Tribunal on 29 January 2020, and the final hearing was conducted on 26 May 2020.

The regulatory framework

Complaints may be made to the Building Commissioner under the BSCRA Act as follows:
a)under s 5(1), a person may make a complaint to the Building Commissioner about a regulated building service not being carried out in a proper and proficient manner or being faulty or unsatisfactory; and/or
b)under s 5(2), an owner or builder under a home building work contract may make a complaint to the Building Commissioner about a matter referred to in s 17 or s 20 or Sch 1 cl 5 of the Home Building Contracts Act 1991 (WA) (HBC Act).
Having accepted a complaint made under s 5 of the BSCRA Act, the Building Commissioner is required by s 9 of that Act to cause an investigation to be carried out by an authorised officer. After having regard to a report of the authorised officer, the Building Commissioner may determine that one of the alternative courses of action available under s 11(1) of the BSCRA Act is to apply. One such course is referral of the complaint to the Tribunal.
Under the BSCRA Act, the Tribunal's powers to deal with a complaint depends on the character of the complaint. If the complaint falls under s 5(1) of that Act, the Tribunal's powers to deal with it are set out in s 38(1), which empowers the making of a Building Remedy Order (BRO) provided under s 36. If the complaint falls under s 5(2) of the Act, then the Tribunal's powers to deal with it are set out in s 43(1), which empowers the making of a Home Building Work Contract Remedy Order provided under s 41.
As noted above, complaints under s 5(2) of the BSCRA Act may be brought by an owner or builder under a home building work contract. Pursuant to s 3 of the BSCRA Act, each of the terms 'owner' and 'home building work contract' has the meaning given under s 3(1) of the HBC Act, which relevantly provides:
home building work contract means a contract between a builder and an owner for the performance by the builder of home building work, but does not include
(a)a cost plus contract;
(b)a contract for the performance of home building work
(i)for a builder who is in turn obliged to perform the work under another contract; or
(ii)if the amount stated in the contract as being payable under the contract for the work is $6 000, or such other amount as is prescribed, or less; or
(iii)if the amount stated in the contract as being payable under the contract for the work is $200 000, or such other amount as is prescribed, or more;
owner in relation to a contract means the person for whom or which home building work is to be performed under the contract[.]
In this case, the contract amount of $4,500 falls outside the definitional requirements of 'home building work contract' (the prescribed amounts now being $7,500 and $500,000: reg 2A of the Home Building Contracts Regulations 1992 (WA). As such, notwithstanding that the applicants satisfy the meaning of 'owner', the Complaint is not made by an owner under a home building work contract and cannot therefore be dealt with as a complaint brought under s 5(2) of the BSCRA Act.
Accordingly, the Tribunal may only deal with the Complaint if it properly falls within the ambit of s 5(1) of the BSCRA Act and, if it does, then in accordance with s 38 of the BSCRA Act.

Issues for determination

To determine whether the Complaint is properly dealt with as one made under s 5(1) of the BSCRA Act, and whether, pursuant to s 38 of the BSCRA Act, a BRO ought or ought not be made, the Tribunal must determine:
a)whether the Complaint is about a regulated building service not being carried out in a proper and proficient manner or being faulty or unsatisfactory; and if so
b)whether that service was in fact not carried out in a proper and proficient manner or is faulty or unsatisfactory; and if so
c)the appropriate remedy under s 36 of the BRCRA.

Evidence

Each of the applicants and Mr Zukmirovic, the director of the respondent, gave oral evidence at the hearing. Additionally, the respondent called one witness, Ms Julie Ann Hall, National Sales Manager for Concrete Colour Systems (CCS), who gave oral evidence and whom the parties had an opportunity to examine and crossexamine.
The bundle of documents contained in the Building Commissioner's referral of the Complaint to the Tribunal were put into a hearing book prepared by the Tribunal and taken into evidence (Exhibit 1).
Further, the respondent handed up the following documents at the hearing which were accepted into evidence:
a)a colour brochure produced by CCS headed 'Concrete Colour Palette 2017/2018' and containing a colour chart (CCS Brochure) (Exhibit 2); and
b)a colour photograph which the respondent indicated, and the applicants accepted, was taken of the Crossover by the respondent on 26 May 2020 (the day of the hearing) (Exhibit 3).
All of the above evidence has been considered by the Tribunal in making its findings on material questions of the facts and in arriving at its decision.

The parties' contentions

The applicants' contentions may be summarised as follows:
a)The Contract specified that the Crossover to be supplied and installed by the respondent would be 'CCS Ruby' in colour.
b)The colour 'CCS Ruby' was decided upon by the applicants at the time of entering into the Contract by reference to the colour swatches in the CCS Brochure.
c)To the knowledge of the respondent, the applicants chose the colour 'CCS Ruby' to most closely match the colour of the existing driveway at the Property.
d)To the knowledge of the respondent, the applicants chose full depth colour concrete to avoid the need to repaint or refinish the Crossover in order to maintain its colour.
e)The Crossover supplied and installed by the respondent does not fairly correspond with the colour swatch in the CCS Brochure described as 'CCS Ruby' and is, therefore, faulty or unsatisfactory.
The respondent's contentions may be summarised as follows:
a)To the knowledge of the applicants at the time of entering into the Contract, full depth colour concrete may not achieve an exact colour match with the swatches in the CCS Brochure. Rather, some variation of colour may be expected depending on the base materials (such as sand) used in the concrete mix.
b)The respondent did not manufacture the concrete, or the concrete pigments, for the Crossover.
c)The respondent ordered the concrete for the Crossover to be mixed in accordance with the specifications for 'CCS Ruby'.
d)The Crossover fairly corresponds in colour with the colour swatch in the CCS Brochure described as 'CCS Ruby' and is, therefore, not faulty or unsatisfactory.
e)Even if the Crossover does not fairly correspond in colour with the colour swatch in the CCS Brochure described as 'CCS Ruby', then a complaint does not properly lie against the respondent because the respondent ordered the correct colour and carried out the installation work competently.

Facts

It was common ground between the parties that the applicants met with a sales representative of the respondent, Mr Gary Bailey, at the Property on 1 May 2019.
The applicants gave uncontested evidence to the effect, and the Tribunal accepts, that at that meeting:
a)the applicants discussed with Mr Bailey their options for replacement of an existing bitumen crossover with a concrete alternative that would achieve a close colour match with the existing (painted) driveway at the Property;
b)Mr Bailey discussed with the applicants that they could install a plain concrete crossover which could be painted (and which would require periodic repainting to maintain the colour); alternatively, they could install full depth colour concrete;
c)the applicants told Mr Bailey that they were 'fed up' with painting the existing driveway and on that basis elected full depth colour concrete for the Crossover; and
d)the applicants were given a copy of the CCS Brochure from which to select an appropriate colour from the swatches, with a view to most closely matching the existing driveway. Although the applicants initially considered the colour described in the CCS Brochure as 'Terracotta', they ultimately settled on the colour swatch in the CCS Brochure described as 'CCS Ruby'.
The parties entered into the Contract on 1 May 2019, upon the applicants' signed acceptance of the respondent's offer (contained in the Work Order) to supply and install a full depth colour concrete crossover in CCS Ruby at the Property for $4,500.
Although, for the reasons outlined at [9]-[10] above, the Complaint cannot be dealt with as a dispute for breach of contract, the subject matter of the Contract particularly as it relates to the colour of the Crossover - is nevertheless relevant to the issues that the Tribunal must determine, as outlined at [11] above.
The Tribunal finds that the applicants were not told by Mr Bailey that, in order to achieve a colour that would reasonably corresponded with the colour swatch in the CCS Brochure, they would need to seal the Crossover. That finding accords with the evidence of the applicants about their meeting with Mr Bailey (ts 6, 26 May 2020), and is also consistent with the evidence of Mr Vukmirovic, who indicated that it is not the usual practice of the respondent to offer sealing of full depth colour concrete to clients (ts 17, 26 May 2020).
Mr Vukmirovic did emphasise, however, that it is the usual practice of the respondent to indicate to clients that some colour variation can always be expected with coloured concrete because of variations in the sand that might be used between batches (ts 16 and 17, 26 May 2020). He indicated that this is also drawn to clients' attention in, and by the provision of, the CCS Brochure.
Both parties agree that the applicants were given a copy of the CCS Brochure on 1 May 2019, at or about the time they entered into the Contract.
Relevantly, the CCS Brochure contains the following:
How to use this colour card in order to receive your nominated concrete colour
Each of the enclosed colour swatches were matched to real life samples of concrete.
All you need to do is advise your concrete producer, builder or decorative concrete placer which CCS Colour you desire and refer them to this colour card.
…
Possible variations between colour swatches and final concrete colour
The enclosed colour swatches were accurately matched to laboratory manufactured concrete samples using the prescribed addition rate of bags of CCS Pigment per cubic metre of concrete.
As coloured concrete is an applied finish, slight variations in colour between the colour swatches and the actual concrete is to be expected. The key reason being the variations in the colour of local sands, aggregates and cement that is unique or native to the location of your concrete company [.]
Consequently, when it is essential that the final colour be determined before installation, a representative jobsite sample should be prepared prior to the start of the actual job. The site sample should be created using the intended raw materials, finishing techniques and desired sealer by the preferred contractor.
This sample should then be reviewed and approved once the sample has cured for 14 - 28 days.
The respondent called Ms Julie Ann Hall, National Sales Manager for CCS as a witness, who gave evidence that:
a)CCS produces and supplies oxides for coloured concrete but does not produce the concrete; concrete production is undertaken by a concrete plant using a number of other 'core ingredients' such as sands and aggregates in addition to the oxides;
b)the sands and aggregates used can impact on the finished colour of the cement, so if an exact match is required CCS suggests that a site sample be produced to determine the exact dose rate of the requisite oxides; however, while this is 'best practice' it is not commonly done;
c)wet concrete is a very different colour to dried concrete; concrete is fully cured after around a month and at that time its final colour will show;
d)the colour swatches in the CCS Brochure are the colour of laboratory concrete samples that are raw, unsealed and steel-trowel finished. The swatches represent the intended final colour of the concrete once it has cured and is in a dry state;
e)sometimes efflorescence can come to the surface of concrete and make it appear lighter; this can be removed with a citric cleaner or very light acid wash; and
f)an acrylic sealer will enrich and enhance the colour of raw concrete, giving it a 'wet look'; however, any sealant would require regular maintenance.
Mr Zukmirovic gave evidence, and the Tribunal accepts, that the respondent ordered concrete for the Crossover in accordance with the recommended specifications in the CCS Brochure (Exhibit 1, pages 3839; Exhibit 2).
The Crossover was laid by the respondent on 10 May 2019.
The parties agreed that when the concrete was being poured it appeared to correspond in colour with 'CCS Ruby'.
The applicants gave evidence, and the Tribunal accepts, that within several days of being poured, as the concrete cured, it began to lighten in colour. From the documents contained in Exhibit 1, it is clear that the applicants made their concerns about the colour of the Crossover known to the respondent within the first month of its installation.
The applicants submitted as part of their Complaint photographs taken of the driveway and Crossover at the Property. While the Tribunal cannot be satisfied that those photographs represent the exact colour of the Crossover, it is satisfied that they demonstrate a marked difference in colour between the driveway and the Crossover and, in turn, a significant variation in colour between the Crossover and the colour swatch described in the CCS Brochure as 'CCS Ruby'.
The respondent submitted a photograph (Exhibit 3) taken of the Crossover when it was wet. From that photograph it appears, and the applicants accepted, that the Crossover when wet is similar in colour to the existing driveway at the Property and to the colour swatch described in the CCS Brochure as 'CCS Ruby'.
The Tribunal notes that the Building Commissioner referred to the Complaint to a building inspector for investigation. A site inspection was undertaken on 16 December 2019 in respect of which the inspector reported that 'the extant finish of the new driveway [sic] is a pink colour and does not match the existing colour' (Exhibit 1, page 25).

Findings of material fact

The Tribunal finds that:
a)the applicants were aware, at the time of entering the Contract, that an exact colour match to the swatch described in the CCS Brochure as 'CCS Ruby' may not be achieved and that there may be some slight variation from that colour in the finished Crossover;
b)the applicants contracted with the respondent for the supply and installation of an unsealed full depth colour crossover that:
i)when cured and in dry conditions, would reasonably correspond in colour, subject to some 'slight variation', with the colour swatch in the CCS Brochure described as 'CCS Ruby'; and
ii)would not require sealant to reasonably correspond in colour, subject to some 'slight variation', with CCS Ruby;
c)the concrete, when being poured, was of a very similar colour to that in the colour swatch described as 'CCS Ruby' in the CCS Brochure (this conclusion is supported by the evidence of the applicants who only observed the colour difference after some days, when the concrete had cured) (ts 7, 26 May 2020);
d)in relation to the colour of the Crossover:
i)when wet, the colour of the Crossover reasonably corresponds with the colour swatch described as 'CCS Ruby' in the CCS Brochure; and
ii)when dry, the colour of the Crossover differs significantly from the colour swatch described as 'CCS Ruby' in the CCS Brochure, being much lighter in shade and appearing more pink than red in hue.
Although, following the evidence of Ms Hall (see [26(e)] above), the respondent urged the Tribunal to find that the colour variation in the Crossover was due to efflorescence, the Tribunal does not consider that there is sufficient evidence to make that finding. Indeed, Ms Hall stopped well short of making any comment or offering any opinion in relation to the Crossover itself, and there is no other evidence before the Tribunal in relation to the cause of the colour variation.
By reason of the above findings, the Tribunal concludes that the Crossover installed by the respondent is not the colour specified in the Contract, being CCS Ruby. However, because this matter cannot be dealt with as a breach of contract dispute under s 5(2) of the BSCRA Act (see [9] above), this finding is of tangential relevance.

Consideration

The issues for determination, set out in [11] above, turn on the construction of the terms 'regulated building service', proper and proficient manner' and 'faulty or unsatisfactory' within the context of s 5(1) and s 38 of the BSCRA Act.
The meaning given to written laws is to be approached in accordance with the general principles of construction, relevantly summarised in Commissioner of Police v Thayli Pty Ltd [2020]WASC43 as follows:
29The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The importance of construction of legislation is to begin in the text itself by regard to its context and purpose. Statutory context within immediate provisions and the whole of an Act is to be considered from the beginning of the task.
…
31[Further], context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed.

Regulated building service

A 'regulated building service' is defined in s 3 of the BSCRA Act to be any of the following:
(a)a building service carried out by a registered building service provider or an approved owner builder;
(b)home building work that is
(i)carried out by a person for another person under a home building work contract or other contract or arrangement for gain or reward; and
(ii)not carried out for a person who is in turn obliged to perform the work under another contract;
(c)any other service or work prescribed for the purposes of this definition[.]
Under the same provision, 'home building work' has the meaning given in the HBC Act.
Pursuant to s 3(1) of the HBC Act:
home building work means the whole or part of the work of
(a)constructing or re constructing a dwelling including an existing dwelling and/or strata titled dwelling; or
(b)placing a dwelling on land; or
(c)altering, improving or repairing a dwelling, including a strata titled dwelling; or
(d)constructing or carrying out any associated work in connection with
(i)any work referred to in paragraph (a) or (b); or
(ii)an existing dwelling, including a strata titled dwelling;
[and]
associated work includes site works, swimming pools, spas, pergolas, carports, garages, sheds, fencing, retaining walls, paving, driveways, landscaping and other like works[.]
The definition of 'associated work' under the HBC Act is inclusive. Its language, taking particular of account of the nature of the nonexhaustive list of works expressly included (notably including paving and driveways), is consistent with a crossover falling within the scope of that term.
Accordingly, the Tribunal finds that the work at the heart of the dispute (the supply and installation of the Crossover) was associated work in connection with an existing dwelling (the Property) and therefore constitutes a regulated building service, being home building work carried out by the respondent for the applicants under a contract (other than a home building work contract) for reward.

Two limbs

Given the finding that the work in question constitutes a regulated building service:
a)to the extent that the Complaint is about the work not being carried out in a proper and proficient manner, or being faulty or unsatisfactory, it will fall within the scope of s 5(1) of the BSCRA Act; and
b)similarly, pursuant to s 38(1)(a) of the BSCRA Act, the Tribunal may make a BRO in respect of a building service complaint if and to the extent that the Tribunal is satisfied that the regulated building service in question has not been carried out in a proper and proficient manner, or is faulty or unsatisfactory.
To fall within the scope of s 5(1) and s 38(1)(a) of the BSCRA Act respectively, the complaint and finding about a regulated building service must be to the effect that the service 'has not been carried out in a proper and proficient manner or is faulty or unsatisfactory'. The language of that phrase suggests that it comprises two limbs, rather than being a composite phrase, for the following reasons:
(a)the description 'in a proper and proficient' attaches to the manner in which the regulated building service has been carried out;
(b)the phrase 'is faulty or unsatisfactory' makes it clear that this element attaches to the regulated building service itself (noting the use of the present tense 'is') rather than to the manner in which it 'has been carried out' (the latter using the present perfect tense); and
(c)the limbs are further distinguished by the use of a negative criterion in the first limb ('the regulated building service … has not been carried out in a proper and proficient manner') and a positive criterion in second limb ('the regulated building service … is faulty or unsatisfactory').
If the relevant phrase were differently formulated as follows: 'the regulated building service … has been carried out in a manner that is not proper and proficient or is faulty or unsatisfactory', then it would be open to construe both limbs as attaching to the manner in which the work was carried out. The formulation of the phrase as it appears in s 5(1) and s 38(1) of the BSCRA Act suggests an intentional separation of the requisite character of the manner in which the work was carried out in the first limb from the requisite (present) state of the resulting works in the second limb.
Finally, the disjunctive 'or' between the two limbs indicates that, in order to fall within the scope of the relevant provisions, a complaint or finding about a regulated building service must meet at least one, but need not meet both, of the qualifying limbs.
Such a construction is consistent with Diploma Construction (WA) Pty Ltd v South Central WA Pty Ltd [2015]WASC289 (Diploma Construction) which supported a finding of a regulated building service being 'unsatisfactory' only, without a finding that it was also not carried out in a proper and proficient manner.

First limb: 'not carried out in a proper and proficient manner'

As noted above, the first limb of the requirements under s 5(1) and s 38(1)(a) of the BSCRA Act, which refers to a regulated building service not being carried out in a proper and proficient manner, is directed to the execution of the regulated building service. To use an older term, it is directed to workmanship.
It would be difficult to characterise the Complaint as being about the manner in which the installation of the Crossover was carried out. The applicants gave evidence that, apart from its colour, 'the concrete is great' and they have no problem with the Crossover (ts 21, 26 May 2020).
Further, even if it were possible to characterise the Complaint as including the first limb of s 5(1)(a) of the BSCRA Act, there is insufficient evidence before the Tribunal on which it could be satisfied, for the purposes of s 38(1) of the BSCRA Act, that the regulated building service provided by the respondent was not in fact carried out in a proper and proficient manner (see further, [27] and [63]-[65] hereof).

Second limb: 'faulty or unsatisfactory'

The second limb of the requirements under s 5(1) and s 38(1)(a) of the BSCRA Act, which refers to a regulated building service being 'faulty or unsatisfactory', requires closer consideration.
As noted above, there is no complaint about the quality of the Crossover other than in relation to its colour. The question in the current context is:
a)whether a complaint about the finished colour of associated works is a complaint about a regulated building service being faulty or unsatisfactory under s 5(1) of the BSCRA Act; and
b)whether the Tribunal could be satisfied, on the basis of the finished colour of the associated works, that the regulated building service is faulty or unsatisfactory for the purposes of s 38(1)(a) of the BSCRA Act.
The language of the relevant provisions is not directed to the supply of products per se. Rather, to satisfy the second limb the complaint must be about, and the Tribunal's findings should concern, the regulated building service itself being faulty or unsatisfactory.
As noted above, the terms in question must be construed in context, taking account of the wording of the provisions in which the terms appear, the Act as a whole, and the regulatory framework in which they operate.
Noting the complete wording of s 5(1) and s 38(1)(a) of the BSCRA Act, and the reasoning outlined in [44]-[46], it is apparent that the second limb phrase 'or … faulty or unsatisfactory' should add something to the first limb phrase 'not … carried out in a proper and proficient manner'. Accordingly, a regulated building service must be capable of being faulty or unsatisfactory for reasons other than manner in which the work was carried out.
For this reason, the Tribunal considers that it is open to find a regulated building service to be faulty or unsatisfactory based on the result that it produces, including by reference to a deviation from any specifications agreed between the parties. Such a construction is supported by the ordinary meaning of 'faulty' and 'unsatisfactory' which are defined in the Macquarie Dictionary as follows:
Faulty: adjective 1. having faults or defects.
…
Unsatisfactory: adjective not satisfactory; not satisfying specified desires or requirements; inadequate.
As noted in Diploma Construction at [31]:
The Act does not expressly limit the reasons why a regulated building service may be regarded as unsatisfactory. Nor is there anything which expressly precludes a finding that the construction of a building is unsatisfactory because it is undertaken in accordance with a design prepared by a contractor of the builder. The phrase 'not been carried out in a proper or proficient manner or is faulty or unsatisfactory' is a broad expression apt to cover a wide range of deficiencies in the construction of a building which can be taken into account.
Taking account of both the language and the regulatory context in which the relevant provisions operate, the determination of whether a regulated building service 'is faulty or unsatisfactory' is to be undertaken objectively, taking account of all the facts before the Tribunal (rather than simply whether the complainant is subjectively satisfied or dissatisfied with the result).
Relevantly, the Tribunal may take account of the nature of any specifications in the design or contract, the circumstances in which the specifications were made, the nature of the regulated building service, and the nature and degree of any deviation from the specifications.
In this case, the Tribunal is satisfied that the Crossover is faulty or unsatisfactory - and in particular, unsatisfactory - taking account of the following:
a)the colour 'CCS Ruby' was specified in the Contract by reference to the CCS Brochure provided by the respondent to the applicants;
b)the respondent knew that the applicants specified the colour of the Crossover to most closely match the existing driveway at the Property and that they had expressly chosen a full depth colour concrete to avoid the need to seal the concrete;
c)the applicants were made aware at the time of specifying the colour that a 'slight variation' in colour might be expected. In that context, a 'slight variation' would objectively be satisfactory, with the degree of variation in colour meeting the description 'slight' taking account of the degrees of variation in colour between the swatches the CCS Brochure;
d)a deviation in colour that exceeds the degree of variation between different colour swatches in the CCS Brochure is properly characterised as the installation of a different colour, and therefore a material and unsatisfactory deviation from the specification in the Contract;
e)the deviation in colour is properly assessed on the basis of the colour of the Crossover after it had cured and when in a dry, unsealed state; and
f)the colour of the Crossover in a dry, unsealed state differs markedly from the colour swatch in the CCS Brochure described as 'CCS Ruby'.

Conclusion

The Tribunal finds that:
a)the Complaint, which is confined to a complaint about the colour of the Crossover, can properly be characterised as a complaint under s 5(1) of the BSCRA Act about a regulated building service being faulty or unsatisfactory; and
b)the regulated building service in question, being home building work carried out by the respondent for the applicants under a contract (other than a home building work contract) for reward, is faulty or unsatisfactory by reason of the Crossover varying significantly in colour from the colour specified in the Contract.

Final observations

The Tribunal notes for completeness that there may, of course, be cases where the installation of a product of the wrong colour could warrant a finding that the regulated building service was both faulty or unsatisfactory and not carried out in a proper or proficient manner (see [46] above).
An example of such a case might be where a regulated building service provider fails to adhere to drawings (see Waldron and Afra Construction Pty Ltd [2013] WASAT 207 at [14] which characterised this as not proper and proficient) and where the result is (objectively) faulty or unsatisfactory (Diploma Construction). A similar conclusion could be reached, in relation to colour, in circumstances where the deviation from a specified colour ought to have been patent to the service provider at the time of installation (in which case, it would not be proper and proficient to ignore the fault and continue with the installation). This is not such a case.
Both parties gave evidence that the concrete for the Crossover, at the time it was being poured, looked well matched to the colour swatch in the CCS Brochure described as 'CCS Ruby' (ts 7 and 23, 26 May 2020).
Based on the evidence of Ms Hall (ts 35, 26 May 2020) that:
… wet concrete looks very different to dry concrete, so when it comes out the back of a truck, it's a very different colour to what it's going to dry …
it might be argued that the respondent ought to have known at the time of installation that the colour, which was well matched when wet, would not be well matched when dry. However, such a conclusion is not readily established on the facts and is, for the reasons outlined above, unnecessary.
Further and finally, the Tribunal notes that the potential characterisation, in a suitable case (where the contract amount falls within the definitional parameters of 'home building contract' under the HBC Act), of a complaint about a material deviation from specifications as a complaint about a breach of contract does not militate against the conclusion that such deviation may found a conclusion that a regulated building service is 'faulty or unsatisfactory'.
The regulatory framework is explicit in its recognition that in some cases the subject matter of a complaint could be a complaint that a regulated building service was carried out in a manner that is not proper or proficient or is faulty or unsatisfactory, and also be about a breach of contract. (The most obvious example is the overlap between 'proper and proficient' and the language of s 11 of the HBC Act, dealing with an implied term in home building work contracts as to liability for defects, the latter defined to include a failure to perform home building work in a 'proper and workmanlike manner').
Such an overlap is expressly contemplated and dealt with in s 17(a)(i) of the HBC Act which has the effect that a complaint about breach of contract can only be made under s 5(2) of the BSCRA Act if a BRO could not be made in respect of that breach.
Recognising that a deviation from specifications may in some cases give rise to an objective assessment that a regulated building service is faulty or unsatisfactory does not render the contract provisions in Pt 2 of the HBC Act nugatory. The language of the terms and conditions implied into home building work contracts under the HBC Act (note, in particular s 9 and s 11) is sufficiently broad that it will respond to deficiencies in home building work in respect of which a BRO could not be made.

Building Remedy Order

Being satisfied that the regulated building service carried out by the respondent is faulty or unsatisfactory, the Tribunal may, pursuant to s 38(1)(a) of the BSCRA Act, deal with the Complaint by making a BRO, or may otherwise decline to make a BRO.
Pursuant to s 36(1) of the BSCRA Act, a BRO 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.
As noted in Gemmill Homes Pty Ltd v Sanders [2018] WASC 179 at [131]-[135]:
a)the foregoing provisions of the BSCRA Act require the Tribunal to exercise its discretion in relation to the grant of any statutory remedy, rather than be directed by the election of the innocent party;
b)however, the willingness of an owner to grant access to their property is a relevant consideration to the exercise of that discretion.
Noting that the applicants indicated that they would be content for the respondent to carry out work to remedy the Crossover, the Tribunal considers that it is appropriate to deal with the Complaint by making a BRO under s 36(1)(a) of the BSCRA Act.

Orders

1.Pursuant to s 36(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), the respondent must carry out such remedial work as is necessary to provide the applicants with an unsealed full depth colour concrete crossover that, when cured and in a dry condition, reasonably corresponds in colour with the colour swatch in the CCS Brochure described as 'CCS Ruby' (Remedial Work).
2.The Remedial Work must be carried out in a proper and proficient manner.
3.The respondent must make good any areas affected by the Remedial Work.
4.The respondent must complete the Remedial Work, and make good any areas affected by it, by no later than 10 September 2020.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR B McGivern, MEMBER
7 JULY 2020