Owners of Island Apartments Strata Plan 52597 and Pindan Pty Ltd
[2018] WASAT 2
•11 JANUARY 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)
CITATION: OWNERS OF ISLAND APARTMENTS STRATA PLAN 52597 and PINDAN PTY LTD [2018] WASAT 2
MEMBER: MS P LE MIERE (MEMBER)
MR R AFFLECK (SENIOR SESSIONAL MEMBER)
MR P MARSHALL (SESSIONAL MEMBER)
HEARD: 31 JULY 2017 AND 1 AUGUST 2017
DELIVERED : 11 JANUARY 2018
FILE NO/S: CC 6 of 2015
BETWEEN: OWNERS OF ISLAND APARTMENTS STRATA PLAN 52597
Applicant
AND
PINDAN PTY LTD
Respondent
Catchwords:
Building Services(Complaint Resolution and Administration) Act 2011 (WA) Relevance of contract specifications in workmanship dispute Should a building remedy order be made when maintenance will be required in any event Proportionality in building remedy orders Appropriateness of earlier remedial work Should a building remedy order be made where previous remedial work has not to date shown signs of failure
Legislation:
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5, s 7, s 11(1)(d), s 36, s 36(1)(b), s 38, s 38(1)(b), s 41
Result:
Application partially successful
Summary of Tribunal's decision:
The applicant is the owners of units in a strata development located close to the sea front in North Coogee.
The respondent was contracted by the developer to build the units.
A complaint was made by the owners to the Building Commission in November 2013 that resulted in proceedings in the Tribunal being commenced in early 2015.
The matters for determination were reduced through mediation or otherwise to six items of complaint some of which contained numerous parts.
Item 1 a complaint as to the finish on various steel items. The Tribunal was not satisfied that the building service in respect of all but the walkways was not carried out in a proper and proficient manner or was faulty or unsatisfactory.
Item 2 a complaint as to whether a top coat had been and should have been put on the Acrylic texture coat 'Coventry Coarse'. The Tribunal was satisfied it was not proper and proficient or was faulty or unsatisfactory of the respondent not to have applied a top coat and consider it necessary and reasonable that a building remedy order be made.
The applicant sought a building remedy order pursuant to s 36(1)(a) and as a consequence no costings in respect of the proposed remedial work was provided to the Tribunal.
The Tribunal informed the parties that in the event a monetary order was made it would order the respondent be liable for 30% of the costs of the remedial work. The terms of the building remedy order are to be subject to further submissions from the parties.
Item 3 a complaint concerning the dilapidated state of the timber soffits. The respondent alleged the dilapidated state of the soffits was due to a lack of maintenance on the part of the applicant.
The Tribunal found the condition of the timber soffits to be as a result of faulty or unsatisfactory workmanship and said it would make a building remedy order.
Issues of proportionality were live in this complaint and again the Tribunal determined that were it to make a building remedy order pursuant to s 36 (1)(b) it would order the respondent to pay 50% of the costs of the remedial work. The terms of the building remedy order are to be subject to further submissions from the parties.
Item 4 a complaint concerning the presence of rust or corrosion on the concrete soffits. The Tribunal is satisfied that the respondent’s use of plastic tipped bar chairs in place of plastic bar chairs as required by the Building Code of Australia and the building licence was faulty or unsatisfactory work. The Tribunal was also satisfied that the repairs already completed by the respondent were not satisfactory and were required to be redone. The terms of the building remedy order are to be subject to further submissions from the parties.
Item 7 a complaint regarding water leaks in three areas, an apartment, two store rooms and around a swimming pool the later issue being as to the cost of repairs only.
The Tribunal was not satisfied that the cause of the leaks in the apartment and store rooms was due to the building service not being carried out in a proper and proficient manner or being faulty or unsatisfactory.
The Tribunal was satisfied that the respondent had been prepared to carry out remedial work to the leak near the swimming pool and therefore found the building remedy order to be for the costs provided by the respondent.
Item 15 a complaint about the decking around the various swimming pools in the unit complex. At the hearing the respondent’s expert agreed the decking had not performed as it should and therefore was not fit for purpose. The cause of the failure of the decking was found to be more likely than not due to the installation of boards with a moisture content value exceeding those recommended which caused cupping and excessive shrinkage when it tried out.
The Tribunal preferred the evidence of the respondent in respect of the costings associated with the remedial work.
Item 22 the Tribunal was informed in the parties closing submissions that this matter had been resolved. The Tribunal will hear from the parties as to what orders should be made.
Category: B
Representation:
Counsel:
Applicant: Ms G Nairn
Respondent: Mr McPherson and Ms E Brown
Solicitors:
Applicant: Lavan Legal
Respondent: Corporate Counsel - Pindan Homes
Case(s) referred to in decision(s):
Bellgrove vEldridge [1954] HCA 36 (1954) 90 CLR 613
Diploma Constructions (WA) Pty Ltd v South-Central WA Pty Ltd [2015] WASC 289
Lewis and Waco Pty Ltd [2016] WASAT 127
Owners of Island Apartments Strata Plan 52597 and Pindan Pty Ltd [2017] WASAT 25
Owners of Strata Plan 528443 and Psaros Builders Pty Ltd [2013] WASAT 46
Owners of Strata Plan 59377 and Carine Homes Pty Ltd [2014] WASAT 49
The Owners of Strata Plan No 74602 v Brookfield Australian Investment Ltd [2015] NSWSC 1916
Total Investments Pty Ltd and Rapley Wilkinson Pty Ltd [2015] WASAT 29
Waldron and Afro Construction Pty Ltd [2013] WASAT 207
Willshee and Westcourt Ltd [2009] WASCA 87
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The applicant is the Strata Council, on behalf of the strata company of the 'Islands', an apartment complex (Strata Plan No 52597) located in North Coogee.
The applicant made a complaint to the Building Commission (complaint) under s 5 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) in respect of alleged faulty or unsatisfactory building work or work not carried out in a proper and proficient manner by Pindan Pty Ltd, the respondent.
The Building Commission referred the complaint to the Tribunal under s 11(1)(d) of the BSCRA Act.
The respondent contended that a number of items in the applicant's 'Schedule of Complaints Requiring Determination' filed in the Tribunal on 5 April 2016 (Complaint Schedule) (Exhibit 1 page 16 - 18) were outside the scope of these proceedings and the jurisdiction of the Tribunal as they were different, or not the same as the complaints bearing those numbers in the applicant's original complaint filed in the Building Commission on 18 November 2013, or the same as those in the revised schedule of complaints filed by the applicant in the Building Commission on or around 22 April 2014.
The preliminary issue was heard by the Tribunal on 19 October 2016.[1]
[1] Owners of Island Apartments Strata Plan 52597 and Pindan Pty Ltd [2017] WASAT 25.
At hearing of the substantive matter on 1 July 2017, the applicant sought to have an item of complaint that had been withdrawn re-instated. This application was dismissed by the Tribunal.
At the commencement of the hearing, the respondent submitted that what was meant by the description of the items of complaint was still not clear.
On 22 September 2017 both parties filed closing submissions and the applicant filed a draft minute of orders sought.
Relevant background
The Islands consist of two apartment buildings (No 21 and No 23 Ocean Drive, North Coogee), plus associated facilities. The buildings were both built by the respondent and completed in approximately March 2010. The strata plan was issued in May 2010.
The Islands was constructed by the respondent pursuant to a building contract with the developer, Stockland Development Pty Ltd (Stockland).
The Islands is situated in the City of Cockburn and was the subject of a building licence number BA 07/1447 issued by the City of Cockburn on 10 December 2007.
The apartments were sold by Stockland (including off the plan) to individual purchasers. Those individual purchasers (or subsequent owners) are the members of the strata company.
The applicant filed the complaint with the Building Commission on 18 November 2013.
The Building Commission acknowledged receipt of the complaint by letter dated 25 November 2013 and requested further information in order to be able to process the complaint. By letter dated 6 February 2014, the Building Commission informed the parties that the complaint had been accepted under s 7 of the BSCRA Act and that the complaint would then be investigated.
The applicant filed and provided to the respondent a report from the Master Painters and Decorators Association dated 4 February 2013 (MPDA Report 1) on a date prior to 17 March 2014.
The applicant filed and provided to the respondent a further report from the Master Painters and Decorators Association dated 6 June 2013 (MPDA Report 2) on or about 17 March 2014. Together MPDA Report 1 and MPDA Report 2 are referred to as the MPDA Report.
The Building Commission issued a Proposed Building Remedy Order (PBR Order) on 16 October 2014.
The Building Commission found that as the matter was of a complex nature and both parties had contested the PBR Order as proposed by the Building Commission, it recommended the matter be referred to the Tribunal.
The Building Commission referred the complaint to the Tribunal under s 11(1)(d) of the BSCRA Act. The parties have, through mediation or otherwise, resolved a number of the items. The unresolved items of complaint are complaint items 1, 2, 3, 4, 7 and 15 as set out at Exhibit 1 page 17.
Issues for determination
The issues to be determined by the Tribunal are:
•Is the flaking and surface corrosion evident on the basement gates, veranda awnings, walkways, gates, fences and common areas in buildings No 21 and No 23 evidence of a regulated building service not carried out in a proper or proficient manner or being faulty or unsatisfactory?
•Did the failure of the respondent to apply a top coat of Acrashield to the acrylic texture 'AcraTex Coventry Coarse finish' mean the regulated building service was not carried out in in a proper or proficient manner or was faulty or unsatisfactory work?
•Is the condition of the exterior plywood soffits (stained and damaged) a result of the regulated building service by the respondent not being carried out in a proper or proficient manner or being faulty or unsatisfactory or is it as a result of a lack of maintenance by the applicant?
•Can the remedial work carried out by the respondent in respect of the plastic tipped steel bar chairs be considered effective if no further rust spots have appeared or does it need to be redone?
•Is the respondent liable to carry out remedial work to the plastic tipped steel bar chairs where there is not currently visible evidence of corrosion?
•Is the evidence of past water leaks in the basement of the Islands mean there are still water leaks and can the mere presence of a leak(s) be evidence of the regulated building service of the respondent not being carried out in a proper or proficient manner or being faulty or unsatisfactory?
•What is the extent of the warping and cupping of the decking around the pools of the Islands and further is it evidence of the regulated building service by the respondent not being carried out in a proper or proficient manner or being faulty or unsatisfactory?
•In respect of all the above items should a building remedy order be made and if so, what is appropriate with regard to the issues of proportionality?
The statutory scheme
All following references to sections or parts of legislation are references to sections or parts of the BSCRA Act unless the context indicates otherwise.
Section 5 permits the making of complaints about a regulated building service matter in the following terms:
(1)Subject to the regulations, 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.
…
(5)The regulations may make provision as to
(a)who can make a building service complaint; and
(b)any preliminary action required before making a complaint under this section.
(6)A complaint under this section must be
(a)made in a manner and form approved by the Building Commissioner; and
(b)accompanied by the prescribed fee, if any.
A 'regulated building service' is defined in s 3 as:
…
(a)a building service carried out by a registered building service provider or an approved ownerbuilder[.]
After receiving a complaint under s 5, the Building Commissioner must make a preliminary decision whether to accept the complaint, or whether to refuse to accept it. Section 7 provides as follows:
(1)After receiving a complaint under section 5 the Building Commissioner must decide whether, and to what extent
(a)to accept it; or
(b)to refuse to accept it.
(2)The Building Commissioner may make such inquiries as are appropriate to enable the making of a decision under this section.
(3)The Building Commissioner may refuse to accept a complaint under subsection (1) if
(a)the complaint is not made in accordance with this Act; or
(b)the Building Commissioner is not satisfied that the complainant has taken preliminary action prescribed under section 5(5)(b); or
(c)the complaint is made out of time as referred to in section 6; or
(d)in the opinion of the Building Commissioner, the complaint is vexatious, misconceived, frivolous or without substance; or
(e)the matter complained about is the subject of another complaint under this Act; or
(f)an arbitrator or other person or a court or other body has made an order, judgment or other finding about the matter complained about; or
(g)the matter complained about has been the subject of a previous complaint to the Building Commissioner that has been refused or in respect of which the Building Commissioner has made a decision under section 11(1)(a).
(4)Except as provided in subsection (5), if an issue raised in a complaint has already been dealt with by the Building Commissioner or a complaint about the issue has already been referred to the State Administrative Tribunal under this Act, the Building Commissioner may refuse to accept the complaint to the extent to which it relates to that issue[.]
If the Building Commissioner decides to refer the complaint to the Tribunal pursuant to s 38, the Tribunal is then empowered under those provisions as follows:
38.How State Administrative Tribunal may deal with building service complaint
(1)If the Building Commissioner refers a building service complaint to the State Administrative Tribunal, the Tribunal may
(a)if the Tribunal is satisfied that the regulated building service that is the subject of the building service complaint has not been carried out in a proper and proficient manner or is faulty or unsatisfactory, deal with the building service complaint by making a building remedy order; or
(b)otherwise, decline to make a building remedy order.
(2)The State Administrative Tribunal cannot make a building remedy order requiring a respondent who is not a registered building services provider
(a)to do any work of a value estimated by the Tribunal to exceed the prescribed amount; or
(b)to pay any amount exceeding the prescribed amount, unless
(c)the order is made in respect of a building service that has been carried out by the respondent in contravention of the Building Services (Registration) Act 2011 section 7; or
(d)the respondent consents to the order being made.
(3)Unless a greater amount is prescribed by the regulations, in subsection (2) the prescribed amount is $500 000.
(4)Nothing in this section prevents a building service complaint from being dealt with through a compulsory conference or mediation process under the State Administrative Tribunal Act 2004[.]
Section 36 sets out what a build remedy order may include:
36.Building remedy order
(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[.]
General principals to be applied
Liability
The Tribunal has, pursuant to s 38 of the BSCRA Act power to make a building remedy order if it is satisfied that the regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory.
The standard of 'proper and proficient' is higher standard of care than 'proper and workmanlike manner' or the reasonable care and skill of a tradesman or contractor.[2]
[2] Waldron and Afro Construction Pty Ltd [2013] WASAT 207 at [14]; approved in Lewis and Waco Pty Ltd [2016] WASAT 127 at [14]
The building contract may be relevant to the proper and proficient as it 'defines what the builder was required to do, which informs the issue of workmanship'.[3]
[3] Owners of Strata Plan 59377 and Carine Homes Pty Ltd [2014] WASAT 49 at [23]
The phrase 'not been carried out in a proper and 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.[4]
[4] Diploma Constructions (WA) Pty Ltd v South-Central WA Pty Ltd [2015] WASC 289 at [31]
Manufacturers recommendations may be departed from if the builder otherwise acted in a proper and proficient manner. A product which is performing well, and is suitable for its application, cannot automatically be said to be faulty or unsatisfactory.[5]
[5] Total Investments Pty Ltd and Rapley Wilkinson Pty Ltd [2015] WASAT 29 at [32 37]
A mere departure by a builder from its contractual obligations is insufficient to establish the work was not carried out in a proper and proficient manner or was faulty or unsatisfactory.[6]
[6] Total Investments Pty Ltd and Rapley Wilkinson Pty Ltd [2015] WASAT 29 at [32]
Builders are not compelled to search for and install superior products over and above what is adequate for the intended purpose.[7]
[7] Total Investments Pty Ltd and Rapley Wilkinson Pty Ltd [2015] WASAT 29 at [37]
Where the issue is not contractual, the Tribunal should be cautious in regards to ordering remedial work to be undertaken unless the applicant has demonstrated a genuine adverse effect by reason of the building work in question.[8]
[8] Lewis and Waco Pty Ltd [2016] WASAT 127 at [16]
A building service that complies with the BCA will not be found by the Tribunal to be faulty or unsatisfactory or to not to have been carried out in a proper and proficient manner except in exceptional circumstances.
Damages or building remedies
Where there is a contractual relationship with the builder, the principles outlined in Willshee and Westcourt Ltd [2009] WASCA 87 will guide and influence the grant of any remedy which is a statutory not common law contractual remedy. But where there is no contractual relationship or other nexus with the builder, the Tribunal would generally be disinclined to grant a remedy when no faulty or unsatisfactory work is yet manifest, or likely to become manifest, particularly when there is a substantial time for any claim based on manifest faulty or unsatisfactory work to become time-barred. In all matters, the particular circumstances of the case would affect the exercise of the discretion.[9]
[9] Lewis and Waco Pty Ltd [2016] WASAT 127 at [17]
Where the complaint is one of workmanship a building remedy order may be made pursuant to s 38 of the BSCRA Act and the Tribunal is able to make orders for work to be performed or monetary compensation to be ordered.
The amount of compensation to be paid is that amount which would put the owner in the position they would have been had the work been performed correctly or properly together with any loss consequential upon the faulty workmanship or breach of contract.
The only qualification to that general principal is that the remedial work sought to be redone must be both 'necessary' and 'reasonable'. What is 'necessary' and 'reasonable' in any particular case is a question of fact.[10]
[10] Bellgrove v Eldridge [1954] HCA 36 (1954) 90 CLR 613 at [7]
The test of 'unreasonableness' is only to be satisfied 'by fairly exceptional circumstances', for example where the innocent party was 'merely using a technical breach to secure an uncovenanted profit'. Its unreasonableness may be established where the cost or complexity is out of proportion to the benefit to be obtained[11].
The hearing
[11] The Owners of Strata Plan No 74602 v Brookfield Australian Investment Ltd [2015] NSWSC 1916 at [39-40]
The hearing was held over five days. The following experts in their respective fields gave there evidence concurrently:
| Item 1 – Steel Structures | Applicant | Respondent |
| Experts | Giles Harrison, Extrin Consultants Alan Walters, Master Painters & Decorators Australia | Dr Armand Zurhaar, Zedcon Scientific |
| Lay | Roy Perron, Owner | Ben Murphy, Contract Administrator Adrian Terace, Maintenance Manager |
| Item 2 – Acrylic Texture | Applicant | Respondent |
| Experts | Giles Harrison, Extrin Consultants Alan Walters, Master Painters & Decorators Australia | Dr Armand Zurhaar, Zedcon Scientific Rick Martelli, Ecovera |
| Lay | Roy Perron, Owner |
| Item 4 – Timber Soffits | Applicant | Respondent |
| Experts | Giles Harrison, Extrin Consultants Alan Walters, Master Painters & Decorators Australia | Dr Armand Zurhaar, Zedcon Scientific |
| Lay | Roy Perron, Owner | Ben Murphy, Contract Administrator |
| Item 4 Concrete Balcony Soffits | Applicant | Respondent |
| Experts | Dr Anthea Airey, Airey Taylor Consulting Peter Airey, Airey Taylor Consulting | Dr Armand Zurhaar, Zedcon Scientific |
| Lay | Roy Perron, Owner | Ben Murphy, Contract Administrator Adrian Terace, Maintenance Manager Mark Thompson, Director Constructions |
| Item 5 – Water Leaks | Applicant | Respondent |
| Experts | Richard Machell, Prescient Consulting | Rick Martelli, Ecovera |
| Lay | Roy Perron, Owner James Harris, Owner |
| Item 15 – Pool Decking | Applicant | Respondent |
| Experts | Paul Kiely, Australian Timber Flooring Association | Dr Armand Zurhaar, Zedcon Scientific |
| Lay | Justin Wade, JCW Carpentry Roy Perron, Owner James Harris, Owner | Ben Murphy, Contract Administrator |
The following documents were admitted into evidence:
| EXHIBITS | |
| Ex No. | Description |
| 1 | Hearing book Volumes 1 to 6 |
| 2 | Supplementary Hearing Book |
| 3 | Dulux Specification Sheet, 'Dulux Weathershield X 10 Gloss' |
| 4 | Bundle of photographs of steel items taken by A Zurhaar |
| 5 | Marked up plan identifying steel viewed by experts (with photographs) |
| 6 | Marked up plan identifying steel viewed by experts (without photographs) |
| 7 | A2 bundle of documents from Hearing Book Tab 1.5 |
| 8 | Strata plan |
| 9 | Aerial photograph of buildings No 21 and No 23 |
| 10 | Colour copies of HB 371 to 373 |
| 11 | Further marked up plan identifying steel viewed by experts (with photographs) |
| 12 | Further Supplementary Hearing Book |
| 13 | Photograph of plastic tipped steel bar chairs from Best Bar Reinforcements |
| 14 | Marked up plan of rust spot repairs |
The evidence
Complaint item 1 garage gates
Complaint item 1 was found to include the more detailed steel complaints referred to in reference points 1, 6 to 11, 15, 19, 21, 23 and 25 of the MPDA Report and was limited to the matters referred to in those paragraphs.[12] However, the parties agreed following the oral evidence at hearing of Mr Walters, the author of the MPDA Report[13] that in fact, reference point 10 in the MPDA Report referred to complaint item 4 the concrete soffits.
[12] Owners of Island Apartments Strata Plan 52597 and Pindan Pty Ltd [2017] WASAT 25 at [86]
[13] Exhibit 1 pages 365 to 370
The respondent's position as set out in their closing submissions is that reference point 19 in the MPDA Report relates to complaint item 4. The applicant says it was found to be part of complaint item 1 in Owners of Island Apartments Strata Plan 52597 and Pindan Pty Ltd [2017] WASAT 25 (Pindan) and that Mr Walters' evidence was that it was part of item 1.
The MPDA Report essentially framed the complaint as it sets out the nature of the applicant's complaints. The MPDA Report is limited in detail.
The evidence of Mr Walters was to the effect that when he referred to the 'evidence of the corrosion staining to the underneath edge of the balcony section on the cement render' he did not actually know if it was corrosion as all he could see was 'red staining visible'; T:137; 31.07.17.
Given the evidence later given in the hearing, it became apparent that there was no evidence of any structural steel on or in the balconies other than the plastic tipped steel bar chairs the subject of complaint item 4. No evidence was given by the applicant as to what the 'red staining' on the balconies was or what rectification work was necessary to remedy the staining other than with reference to the plastic tipped steel bar chairs. The Tribunal finds reference point 19 in the MPDA Report to be part of complaint item 4 and will deal with it under that heading.
The parties' experts jointly 'marked up' Exhibit 5 and Exhibit 6 as to the locations of the various items referenced in the MPDA Report.
Mr Walters, the author of the MPDA Report, gave evidence as to his observations that were set out in his report. He conducted no testing; the statements in his report are based on his observations; T:80; 31.07.17.
Garage gates
Mr Harrison gave evidence on the first day of hearing that he tested the garage gates and found the average coating thickness of paint for all items inspected to be deficient and as such the dry film thickness was unacceptable.
Mr Harrison on the second day of the hearing, when asked to mark on a plan (Exhibit 6) the gates he had conducted tests on, it became apparent that the only testing he had done was in respect of gates other than the garage gates. Therefore the only evidence before the Tribunal in respect of µm (micron) testing of the garage gates is that of Dr Zarhaar as set out in his report at Exhibit 1 page 1128.
Dr Zarhaar gave evidence that the galvanised steel of the garage gates have been painted with a primer and topcoat system. The nature of the specified finish he said is consistent with the specification requirements (see Exhibit 1 pages 518 524). The painting system he considered would have a service life of five to seven years before needing to be recoated due to the marine environment of the Islands or less if it is not regularly maintained by freshwater washing.
Further, in his report, Dr Zarhaar says that the dry film thickness measurements of the paint finish taken in a sheltered internal face area produce total paint thickness readings of around 80 µm. This is equivalent to a primer coat of 15 to 20 µm and two top coats of about 30 µm each.
According to the Dulux specification sheet (Exhibit 3) the prima coat should have been 25 µm and the top coat 25 µm. Thus it would appear that the garage gates were painted in accordance with the specifications.
Leaving aside the issue of testing (which the applicant did not do on the garage gates) Mr Harrison and Mr Walters say that the evidence that the primer and top coat were not applied correctly or at all is the fact that it failed.
Dr Zarhaar disagrees and maintains that the painting system did not fail, that the reason it had worn away by 2013 (when first inspected by Mr Harrison and Mr Walters) was because regular maintenance was not performed on the gates such that a build-up of salt occurred which had a corrosive effect; T:120; 31.07.17.
The parties appear to agree that the galvanising of the garage gates was the protective coating on the gates not the painting of them; T:104 105, 109; 31.07.17.
No evidence was led nor was it suggested by any of the experts that the galvanising of the gates had not been properly applied or was in any way deficient.
Although the parties appear to agree that the painting of the gates was an aesthetic issue, the applicant maintains it was just as important that the painting of the gates last seven years as it was for the protective galvanising.
It was put by the applicant that AS2312 of the Building Code of Australia (BCA) should apply to the paint system. AS2312 is a 'Guide to the protection of structural steel against atmospheric corrosion by the use of protective coatings'.
AS 2312 could not apply to the painting system used by the applicant unless it was being used as a protective coating.
Dr Zarhaar was not challenged by the applicant when he gave evidence that the system as set out in the specifications whilst not in line with the AS2312, was compliant with the BCA; T:95; 31.07.17.
All experts agree (T:115; 31.07.17) that there was some corrosion of the steel and of the galvanising and that the gates now need to be painted. Dr Zarhaar is of the opinion that approximately 10% of the gates display a loss of paint. Mr Harrison puts it at 20%.
All experts agree that the actual steel corrosion is currently less than 5% of the total gate surface.
All agree that now the whole of the gates need repainting as they have come to the end of their 'life span' it now being some seven years since they were painted.
All experts agree that the gates have corroded at an accelerated rate (T:123; 31.07.17) as evidenced by the photographs taken in 2013 and Mr Harrison's and Mr Walters' evidence of what they saw when they inspected the gates in 2013.
Mr Walters gave evidence that the painting system was not suitable for the coastal environment (T:124; 31.07.17). He speculated that it would have started to wear away within eighteen months.
Stockland, by its architect provided specifications for water-based exterior paint finishes, which was the paint system used for the gates. This specification called for one coat of professional ultra-base galvanised prime and two coats of Dulux X10 acrylic gloss or low sheen at Exhibit 1 page 53.
Complaint item 1 – lintel
Mr Walters in the MPDA Report - particular 7, refers to a steel lintel above the garage gates. The evidence at hearing disclosed that it was not in fact a steel lintel but rather a 'horizontal rectangular hollow section' and that it is metal work not structural steel; T:26; 01.08.17.
Dr Zarhaar and Mr Walters confirmed that their evidence in respect of the garage gates applied equally to the lintel and that Dr Zarhaar had taken the 'lintel' to be part of the gate when discussing the condition and cause of the deterioration of the condition of the gates; T:28; 01.08.17.
He also confirmed that his evidence was in respect of both gates and that they are both of the same design, same structure and same materials however, one is more whether exposed to weather and is in a more severe state than the other but other than that they are the same; T:29; 01.08.17.
Complaint item 1 - pergolas and walkways, structural steel elements to the western elevation to blocks 1 and 2
The respondent accepts liability for the structural steel remedial work with respect to the pergolas. It does not agree that the walkways should be included.
In these proceedings, the respondent submits that the 'walkways' are not part of the complaint referred to the Tribunal by the Building Commission. It is a submission the Tribunal has difficulty understanding.
'Veranda awnings and walkways' are the steel complaints listed in the original Complaint Schedule. In Pindan the issue was what additional items were included in this item. The respondent accepted at [82] that 'veranda awnings and walkways' were included that it is those items set out in the Complaint Schedule. The respondent did not take issue with the reference in the complaint being to 'veranda awnings' and accepts this is a reference to the 'pergolas', as they are otherwise described including on the plans Exhibit 5 and Exhibit 6.
The respondent at the hearing maintained that in the event the Tribunal finds that walkways are part of the complaint it does not accept liability for any necessary remedial work.
The applicant's experts were unable to provide any useful evidence in respect of any testing that was carried out. Dr Zarhaar gave evidence that there was an inadequate film of paint on the walkways and that their condition is the same as that of the pergolas; T:65; 01.08.17.
The reference to structural steel elements to the western elevation to blocks 1 and 2 being reference points 11 and 15 (Exhibit 1 page 368), 'showing signs of premature corrosion to various areas horizontal and vertical beams' is not a reference to a part of or connected with the pergolas but it is work the respondent has agreed to remedy; T:33; 01.08.17.
Complaint item 1- corrosion cement render
It is not clear what particular 19 of the matters included in complaint item 1 is. Mr Walters in his evidence accepted that he didn't know in fact if what he had observed as corrosion staining on the concrete balconies was rust. All he could say was that it was red in colour and that he made the assumption that it was corrosion; T:137; 31.07.17.
Complaint item 1 - gates and fences (other than basement gates)
Other items included in complaint item 1 are the gates and fences. As with most complaint items different terminology is used by different experts and the parties to describe the same thing.
Evidence was given and not challenged that the reference in the MPDA Report particular 1 'Front perimeter (East Elevation) Powder Coated steel posts to unit 23' is in fact a reference to posts supporting the gate to unit 23. It is not marked on the plan of the property (Exhibit 5) as having been inspected by the various experts other than by Mr Walters.
The evidence in respect of this particular is that the post supporting the gate (and others) is failing, evidenced by the paint peeling off the bottom of the posts and rusting of the steel.
Evidence was given and not challenged that the 'balustrades' are a reference to the horizontal rails of the fence. There are mid-height horizontal beams, one at the top and one at the bottom. The uprights are also referred to as the upright posts in the fence. The Tribunal will therefore refer to these as 'posts' and the horizontal rails as 'balustrades'. The balustrades and the other central horizontal members of the fence are powder coated steel.
It was suggested by the Tribunal to the experts that all the posts and indeed the fences should have, according to the specifications been galvanized but in fact have not been.
The experts agreed that those parts of the fences other than the feet of the posts not galvanized have not failed and that the fact that the posts are not galvanized has not made a difference to their durability; T:38; 01.08.17.
The 'bollards' referred to by Mr Harrison are not a reference to the balustrades of the fence but the steel supports to the pedestrian gates.
The results of the testing Mr Harrison did of those areas are not disputed. His results that there was insufficient paint or film on the 'bollards' is premised on the belief that Dulux Duramate GPE should have total build of 300 µm and the average coating of the areas tested showed a build of 128 µm. However, as the Dulux Duramate GPE is not the paint system used his evidence is of little assistance to the Tribunal.
Mr Walters observed that there was evidence of delamination and corrosion on the feet or base plates of the posts but could not assist further.
Dr Zarhaar agreed that the delamination and corrosion of the base plates of the steel posts could be caused by a fracturing of the powder coating. He further agreed with the speculation that this could have been caused by the tightening of the bolts when the posts were installed; T:40 41; 01.08.17.
All experts agreed that a build of salts from the marine environment in which they are situated would have a corrosive effect if left to sit or pool on the base plates and not regularly washed off.
No evidence was led by the applicant to which and how many base plates were now delaminating.
Complaint item 2 – acrylic texture
The applicant's complaint in respect of the acrylic texture is confined to the lack of an acrylic shield coating to the areas that received the AcraTex Coventry Coarse finish on the walls. It was agreed that all but for a very small area the concrete walls received an AcraTex Coventry Coarse finish coating and the rendered masonry walls received AcraShield.
Mr Walters gave evidence that the difference between application of the AcraShield and AcraTex Coventry Coarse finish is the intermediate coat. The AcraTex Coventry Coarse finish is applied to cement render to give it a sand finish look. Because the products are different, the only way you can achieve a consistency of colour between the AcraShield areas and those that received the AcraTex Coventry Coarse finish is by applying a top coat of AcraShield to the AcraTex Coventry Coarse finish; T:147; 02.08.17.
Further, without a top coat of AcraShield, the areas with AcraTex Coventry Coarse finish will pick up more dirt, having a negative aesthetic look and would require more maintenance to keep them clean.
Those surfaces with a top coat of AcraShield would be able to be cleaned down by rain. With a coated surface you would need to wash them down for 12 to 18 months but without the top coat of AcraShield significantly more regularly.
The difference in colour of the two different surface types that is between the AcraTex Coventry Coarse finish and the AcraShield without a top coat of AcraShield would get worse over time; T:171; 02.08.17.
When Mr Walters inspected the buildings in 2013 he said there was a dramatic difference in the colour between the difference surface finishes.
The build-up of surface contaminates would ultimately have a detrimental effect on the performance of the render as a build-up of salts would have a hydroscopic effect; T:167; 02.08.17.
In essence, the experts agreed that without the top coat of AcraShield the Coventry Coarse finish would not last as long and would need recoating sooner. However the evidence was also that it had lasted seven years, the required period for the warranty.
Mr Walters was of the opinion that to now recoat the surface you would need to clean it with a solvent or brush it down with a soft brush before applying the top coat.
As a coating the AcraTex Coventry Coarse finish has not functionally failed, it has not failing as a coating; T:171; 02.08.17.
The experts agreed that with a top coat of AcraShield the applicant would have been entitled to receive a ten year warranty from Dulux or it would have lasted ten years and, without a top coat, it would not have been entitled to a warranty of only seven years; T:182; 02.08.17.
The experts agreed that at the present time, two top coats of AcraShield are required. However, Mr Walters maintained that had a top coat of AcraShield been applied originally you would now only to apply one top coat of AcraShield; T:197; 02.08.17.
All experts agree that had the top coat of AcraShield been applied at the time, the time for a recoat would be in three years' time, not now; T:198; 02.08.17.
Mr Walters submitted that Dulux would always have recommended a top coat of AcraShield but did not require it; T:200; 02.08.17.
Mr Martelli, the respondent's expert, accepted that the manufacturer Dulux always recommended AcraShield as a top coat. He would recommend Acrashield as a top coat when using a AcraTex Coventry Coarse finish coating system.
Dr Zarhaar accepted that best practice requires the application of an AcraShield top coat to the underlying texture coat; T:205; 02.08.17.
The experts agree that:
•AcraTex Coventry Coarse finish system without AcraShield has more limited durability and is not as good a coating system as the AcraTex Coventry Coarse finish system with AcraShield; T:198 199; 02.08.17.
•The lack of AcraShield meant that the finish surface would attract and retain more dirt; would cause discolouration over the time; and be more difficult to colour match with the painted finishes.
•Visually, the texture coating surface today looked as if it is missing the top coat of AcraShield. It is looking worn and tired from the weather which is what you would expect '7 years down the track' where it wasn't supplemented by AcraShield. If it had had the top coat it would have taken 10 years before looking like it does; T:171; 02.08.17.
•Lack of AcraShield meant Dulux would not give as long a warranty.
•The specification called for the areas where the AcraTex Coventry Coarse finish was used to receive a top coat of AcraShield. Had AcraShield been applied the applicant would have got a longer durability; T:168; 02.08.17.
•The time to first maintenance is reduced when there is no AcraShield top coat because with AcraShield there would be 10 years to first maintenance as opposed to seven years; T:177; 02.08.17.
•Any reapplication would now require two coats given the AcraShield was not initially applied; T:193, 194, 196; 02.08.17.
Item 3 - timber soffits
Evidence in respect of complaint item 3 began by the Tribunal once again having to seek clarification as to the areas of the buildings said to be the subject of the complaint.
The applicant agreed that the complaint and the remedial work sought was in respect of the upper levels of the two buildings; T:8 11, 15; 02.08.17.
Mr Walters did not conduct testing and his report is based on his observations.
He observed that the timber had 'failed' all around the building, on the edges of the board but was worse on the western elevation which is the ocean side.
Mr Walters speculated as to the product used and though it did not look as if Intergrain Ultra Clear had been applied to the external timber as claimed by the respondent. He did agree that had Intergrain Ultra Clear been used it would have been a suitable product and would require recoating every two to four years depending upon the environmental conditions.
Mr Walters expressed the view that the number of coats of Intergrain Ultra Clear required would depend upon the length of time you wished it to last. The greater the build-up, the longer it would last. A rule of thumb was that the first coat was for the timber and every subsequent coat was for every year you wished it to last - so four coats would last three years.
Mr Walters' view was that each coat of Intergrain Ultra Clear would produce a covering of about 35 µm per coat. Mr Nairn suggested to Mr Walters that the Dulux website recommended four or more coats of Intergrain Ultra Clear in an extreme marine environment such as at the Islands. Dr Zarhaar did not demur from this suggestion as being correct.
Mr Walters said that where maintenance was due after two years he would not expect the boards to be delaminating to the extent they were, or at all, as observed by him at the Islands. (He saw them after three years). He said he would expect the coating to be still intact. He opined that what had happened with the soffits on the Islands is that moisture had got into the edges and caused them to peel.
He agreed that regular household maintenance would be desirable. That is, a washing down of the panels to prevent salt build-up which, as we heard previously, has a corrosive effect. However, it is apparent that it would be extremely difficult if not impossible to perform any maintenance on most of the soffits without significant infrastructure such as a 135 boom lift (T:22; 02.08.17) and was not something that could be done other than by trained or experienced people.
Mr Harris did conduct testing on a sheet of exterior plywood and provided a diagram in his report that showed where it came from. He provided samples to a third party testing house which were inconclusive.
Dr Zarhaar examined sheets of the exterior plywood soffit taken from the western elevation and north eastern elevation. Dr Zarhaar, who conducted his investigations in 2016, said the building was then seven years old and that there was no way he could at that time extrapolate back to whether two, three or four coats of Intergrain Ultra Clear had been applied because at that stage the product had actually attritioned itself away to nothing.
He confirmed the photos showed the delamination was migrating from the leading weather edge and that the coating is weathering away; T:37; 02.08.17.
In Dr Zarhaar's report (Exhibit 1 page 1327) he says that the thickness for each coat of Intergrain Ultra Clear would be about 10 µm. At the hearing he agreed with Mr Walters that it should be about 35 µm per coat; T:39; 02.08.17.
On testing, Dr Zarhaar found the micron thickness to be 10 µm on the less exposed board from the sheltered side and that it was unlikely that if it was now 10 µm it was ever 120 µm or more; T:40; 02.08.17.
Mr Perrion gave evidence that when he purchased his unit some six months after it was completed, he noted that there was blackening around the edges of the soffit which he identified as water damage.
Dr Zarhaar agreed that plywood only goes black if moisture is able to get into the plywood itself and that if it had shown areas of black on the leading edge or express edge it would indicate that perhaps those edges were not sealed as well as they should have been; T:45; 02.08.17.
It was agreed by the parties that the specification for the Islands required marine plywood to be used for the soffits. Dr Zarhaar said the use of plywood instead of marine plywood would not have made a difference to the durability of the plywood. This was not challenged by either Mr Harris or Mr Walters.
Dr Zarhaar also was of the opinion that even if the soffits had received four coats of Intergrain Ultra Clear varnish (as was required in the specifications) they would have needed resealing after two years in that environment but you would not have expected to see the damage as described by Mr Perrion after six to twelve months or even after two years; T:56; 02.08.17.
The specifications required the soffits to be 'presealed and machine applied'. Mr Harrison was of the view that this meant that the product had to be dipped in a tank of varnish at a factory. Neither Dr Zarhaar or Mr Walters agreed with Mr Harrison and they were both of the view that it meant presealed before installation with a spray gun as opposed to painted with a brush or roller; T:8788; 02.08.17.
It was agreed by the experts that whether it would be possible to reseal and carry out remedial work on the soffits without removing the panels would depend upon whether the joints of the panels were expressed joints or butted joints. It was agreed that if they were expressed joints the sheets would not need to be removed but if they were butted then the sheets would need to be removed; T:60; 02.08.17.
It was also agreed by the experts that even if the soffits had been correctly and properly installed, had been coated with the appropriate type and coats of sealant or varnish, after seven years they would need to be resealed.
The experts also agreed they were unaware of any plywood product regardless of what sealant was used that would last seven years in the Islands marine environment.
Mr Walters, an expert in painting and painting systems, and Dr Zarhaar, an expert chemist, gave evidence that the type of exterior timber soffits chosen by the architect or Stockland could never have lasted more than two years before needing recoating and not seven years before the first maintenance, as required by the specifications.
Dr Zarhaar's evidence was that when he tested the panels of the exterior soffits that were on the sheltered side of the building the film thickness after seven years was only at a maximum 10 µm. Further, in his expert opinion if the required coatings of sealant had been applied, the soffits would originally have had a covering of between 120 and 150 µm and over seven years this could not have degraded to the point where there was only a film build-up of 10 µm.
Complaint item 4 – concrete balcony soffits
Dr Airey's qualifications in the building industry (as set out in her Curriculum Vitae) are as a material focused scientist with a doctorate in chemistry who specialises in the investigations into reinforcement corrosion in identifying mechanisms of deterioration of built environment materials and specifying preventive/remedial solutions; and chemically focused environmental projects.
Mr Airey (as set out in his Curriculum Vitae) is a senior practising civil and structural engineer, his lengthy experience is in the area of concrete design and construction and all aspects of remediation and lectures all over Australia in this field.
Dr Zarhaar also gave evidence as an expert in respect of this item and (as set out in his Curriculum Vitae) has extensive technical knowledge of materials chemistry, has been engaged as a specialist consultant involving both design/specification issues and technical defect/failure investigations of coatings and materials and has been accepted as an expert in matters of coatings, timber and building materials and workmanship in cases before the Building Disputes Tribunal and Australian courts of law.
Following clarification with Mr Airey and Dr Airey, it was their evidence that based on the relevant BCA standard at the time the Islands were built:
a)the sheltered side of the building was correctly classified by the design engineers as B2. Relevantly, a B2 classification is for coastal zones up to 1 kilometres but excluding tidal and splash zones, and any climatic zones; and
b)for the seaward side it should have been classified as C, taking in to account note 5 that said: 'Where there is strong prevailing winds, or vigorous surf, the distance should be increased beyond 1 kilometres, and high levels of protection should be considered'.
Mr Airey also said that Perth is one of the windiest cities in the world with very strong prevailing winds.
Dr Zarhaar agreed the site was greater than B1, namely B2, but did not agree that on the exposed side it was classified as C. The build structural engineers had classified the whole of the site as B2.
The building licence issued for the Islands was for a B2 site and in accordance with the BCA required the installation of plastic bar chairs in external steel reinforcing. It was conceded by the respondent that plastic tipped steel bar chairs had been used on the external soffits.
Plastic bar chairs were required by the building licence to be used in the external concrete soffits.
All the experts agreed that according to the building licence, the consulting engineers of the Islands and best practice, plastic bar chairs should have been used on the external soffits of the building, not plastic tipped steel bar chairs. They also all agree that the rust spots that have appeared on the concrete soffits are from metal tips that are too close to the surface of the concrete; T:26 27; 03.08.17.
Dr Airey and Mr Airey referred to empirical data that states that a site classified as a B2 marine environment requires a minimum cover of 45 millimetres of concrete to give reasonable durability to steel reinforcement and 70 millimetres for a C classified site.
As the structural engineers' plans call for only 40 millimetres of concrete, the Tribunal assumes that that was the depth of the concrete poured. However, no evidence was led that suggested that it was the incorrect cover of concrete for a B2 site that led to the premature rusting of the plastic tipped steel bar chairs that in turn had caused the rust spots on the concrete soffits.
It was explained to the Tribunal that the tips of the bar chairs are not designed to be covered by any depth of concrete. The bar chairs sit on the form work and hold up the reinforcing steel and the concrete is poured to the depth of the bar chair this distance between the tip of the bar chair and the reinforced steel is referred to as the 'cover zone'. The depth of the concrete is designed to be the thickness necessary to provide protection to the reinforced steel from the B2 environment. No concrete is poured under the bar chair such that if there is any covering of concrete over the tips of the bar chairs, it is very small.
The significance of the cover zone is described by Dr Airey as:
…
Well, it means that there's some potentially corrodible material in the cover zone. The bar chairs the purpose of the bar chairs is to establish the cover height so that the reinforcement can be the right cover can be achieved during the pour, and after the concrete is poured, the legs of the bar chairs are, by their nature, sort of penetrating down to the soffit. And the cover to those bar chairs is effectively zero if there's any exposed metal or plastic part of the plastictipped if that's used, and once they're once there's various (indistinct) of corrosion.
Carbonation has been talked about. That's when where carbon dioxide permeates through coatings and the concrete, and causes some local acidification. Now, that can cause the corrosion to start occurring. And the other mechanism is the chloride from sea salt which is a catalyst to corrosion. Concrete, by its nature, has quite a good reservoir against corrosion, but because these chair tips are on the very surface, the body of the concrete is just not there to really be too effective, so those tips will start corroding[.]
(T:32 33; 03.08.17)
The issue of the effect of having plastic tipped steel bar chairs as opposed to all plastic bar chairs was described by Dr Airey:
…
The immediate risk is if a puncture occurs, but you're quite right, in the steel above the line of the plastic cap will potentially corrode, and that is in the cover zone, between in front of or closer to the soffit than the reinforcement.
…
There's a couple of considerations. One which you pointed out, yourself, which is the plastic tip has a discrete depth. But beyond that, if there's contaminants, carbonation or chloride attack affecting the concrete as it ages, that part of the bar chair will start corroding. So, for example, you may have something which has an intact plastic tip, but in due Coarse, say, after 20 years, when the carbonation crunch might be at that point, or the chloride level reaches a certain level, you may get more widespread corrosion happening with all those bar chairs. Now, the other issue…
…
… And for those ones which have punctured and have the some area at the bottom exposed, I think that they would corrode based on the environmental effects, the certain effects, such as the distance provided by the AcraTex cover. Now, the AcraTex render is a rough a roughfinish surface and then it's been painted over the top with some good quality paint. But the AcraTex being undulating, that in itself causes a different amount of protection in different areas of the soffit.
But the the main thing, I think, which would affect when those things start corroding or not is (a) weather that puncture has occurred; (b) how much chloride has been deposited. The chloride deposition can be quite local (indistinct) chloride tends to come and stick onto surfaces and that can have Peter may may actually talk to this a little bit better than myself, but you tend to have some quite localised effects on buildings with chloride sort of dumping and accumulating in certain soffit areas, whereas other soffit areas which may be better cleaned off by wind or rain, they they may have less chloride accumulation.
All the soffits will be affected by carbonation. Carbonation is the atmospheric the atmosphere has carbon dioxide in it, and that is roughly constant. However, there's a lot of localised variation of carbonation as well, depending on its exposure zone. In still areas you tend to get more carbonation. So the carbon dioxide in nonwindy areas will have an opportunity to sit and react with the concrete, whereas in windswept areas it will tend to get blown blow off the off the face of the building. So carbonation is an odd one, because the highest rate of carbonation is actually in indoor concrete, and the lowest rate is in highly exposed areas[.]
(T:3738; 03.08.17)
It was accepted by the respondent's expert Dr Zarhaar that a rust spot on the concrete soffit meant there was rusting of the bar chair and that the rust spot needed to be remedied.
The reason any rust on the bar chair needs to be dealt with is because of the negative effect the corroding of the plastic tipped steel bar chairs has on the reinforcing steel.
The plastic tipped steel bar chairs are in contact with the reinforcing steel and as the plastic tipped steel bar chairs corrode and oxidise they will try to passivate them by drawing current, that is pulling electrons from the reinforcing steel thus weakening it; T:42; 03.08.17.
Dr Zarhaar maintained that if no further rust spots had shown through over the past seven years and where the rust spots had been repaired and no new rust appeared it meant that the remaining plastic tipped steel bar chairs had not started to rust.
It is Dr Zarhaar's position that a corroding bar chair inside the concrete is not a problem. It is his position that where a tip of a bar chair has corroded it does not mean the bar chair that is encapsulated in the concrete is corroding; T:49; 03.08.17.
The experts all agree the design life of concrete structures is forty to sixty years (BCA AS3600). The plastic tipped steel bar chairs will eventually corrode because they are metal not plastic and they will shorten the life of the building.
The building licence requires various provisions to ensure that especially durable concrete was used in the balcony concrete soffits and front edges, including:
•increased cover (distance from the face of the reinforcing);
•no metal within the cover zone; and
•the cover to be measured from within any groves.
The height of the bar chair is the depth of the cover zone of the reinforcing steel. The greater the cover zone, the greater the protection the reinforcing steel has from the effects of atmospheric corrosion. The experts agree that the effect of having a metal bar chair in the cover zone that will inevitably corrode, reduces the life of the steel reinforcing.
(a)the steel pergolas to each building and respect to which the respondent has expressly accepted liability and including:
(i)the item(s) defined in particular one in the Master Painters and Decorators Association Report dated 4 February 2013 at page 365 of Volume 2 of Exhibit 1;
(ii)the item(s) defined in particular 11 in the Master Painters and Decorators Association Report dated 4 February 2013 at page 368 of Volume 2 of Exhibit 1;
(iii)the item(s) defined in particular 15 in the Master Painters and Decorators Association Report dated 4 February 2013 at page 369 of volume 2 of Exhibit 1; and
(iv)the steel walkways to each building which run perpendicular to the pergolas in and including the walkways as defined in particular one in the Master Painters and Decorators Association Report dated 4 February 2013 at page 365 of volume 2 of Exhibit 1.
2.Pursuant to s 36(1)(b) and s 38(1)(a) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), the respondent shall, by 19 October 2018 pay to the applicant (by consent) the sum of $9,599 being the cost of remedying the regulated building service the subject of complaint item 2 (acrylic texture).
3.By consent, pursuant to s 36(1)(b) and s 38(1)(a) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA),in respect of complaint item 3 (timber soffits), the respondent is to perform or to ensure is performed, the work set out in, and on the terms of, the agreement dated 1 August 2018 between the applicant and the respondent.
4.Pursuant to s 36(1)(b) and s 38(1)(a) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), the respondent is to remedy the cause and effect of the matters the subject of complaint item 4 in a manner that is proper and proficient and includes the following work:
(a)remove any cladding that obscures any external concrete soffits from visual inspection for rust spots or corrosion staining, and following such removal undertake a visual inspection of the soffit to check for rust spot or corrosion staining;
(b)carry out remedial work to any rust spots or corrosion staining in accordance with the remedial recommendations of Dr Airey and Mr Airey as set out in their reports dated 18 April 2016 and 17 July 2017 in Exhibit 1 pages 602 to 606 and 1687 to 1705 including any modifications agreed at the hearing;
(c)in respect of those previously repaired rust spots or corrosion staining to carry out remedial work in accordance with the remedial recommendations of Dr Airey and Mr Airey as set out in their reports dated 18 April 2016 and 17 July 2017 in Exhibit 1 pages 602 to 606 and 1687 to 1705 including any modifications agreed at the hearing; and
(d)in respect of the external concrete soffits that have not or do not show signs of corrosion or where no rust spots have appeared carry out remedial work to those external concrete soffits in accordance with the remedial recommendations of Dr Airey and Mr Airey as set out in their report dated 17 July 2017 in Exhibit 1 pages 1687 to 1705 including any modifications agreed at the hearing.
5.The respondent shall within 28 days of this order pay the applicant a contribution to its legal and expert costs fixed in the sum of $49,026.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS P LE MIERE, MEMBER
5 OCTOBER 2018
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