OWNERS OF STRATA PLAN 49313 and PSAROS PTY LTD - [2019] WASAT 51

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   OWNERS OF STRATA PLAN 49313 and PSAROS PTY LTD [2019] WASAT 51
MEMBER:   MS C WALLACE, SENIOR MEMBER
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   9 JULY 2019
FILE NO/S:   CC 2524 of 2018
BETWEEN:   OWNERS OF STRATA PLAN 49313
Applicant
AND
PSAROS PTY LTD
Respondent

Catchwords:

Building service complaint - Who carried out the regulated building service - Whether proceeding misconceived or lacking in substance

Legislation:

Building Act 2011 (WA), s 3
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(1), s 11(1)(d), s 36(1)(b), s 36(1)(c)
State Administrative Tribunal Act 2004 (WA), s 47(1)(a), s 60(2)

Result:

Application successful in part

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	Ms T Kearney

Solicitors:

Applicant	:	N/A
Respondent	:	Squire Patton Boggs

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

Ambrus and Churches of Christ Homes and Community Services Incorporated [2006] WASAT 141
Diploma Construction (WA) Pty Ltd and South Central WA Pty Ltd [2015] WASC 289
Laurent and Commissioner of Police [2009] WASAT 254
Owners of Strata Plan 52843 and Psaros Pty Ltd [2018] WASAT 113
Shami and Teo [2017] WASAT 73

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 19 November 2018 the Building Commissioner referred two building service complaints to this Tribunal pursuant to s 11(1)(d) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act). The applicant, Owners of Strata Plan 49313, raised two complaints against the respondent, Psaros Pty Ltd, in relation to remedial works undertaken at a strata complex at 150 Stirling Street, Perth (known as the Concourse Apartments).
The complaints were lodged with the Building Commissioner on 20 June 2018 and alleged that as a result of remedial works performed by the respondent, there is water ingress in external tiled areas and the basement carpark of the Concourse Apartments (complaint 1) and also that the stormwater drain is blocked by cement slurry (complaint 2). The applicant alleges, therefore, pursuant to s 5(1) of the BSCRA Act, that the remedial works undertaken by the respondent, were not carried out in a proper and proficient manner or are faulty and/or unsatisfactory.
The applicant seeks the Tribunal to make a building remedy order pursuant to s 36(1)(b) and (c) of the BSCRA Act which reflects the reasonable costs that the applicant has already incurred and will incur in engaging a third party to undertake remedial works to rectify the complaints.
The matter was listed for an initial directions hearing on 4 December 2018 at which time the Tribunal made orders for the applicant to file a statement of issues, facts and contentions together with expert reports relied upon and allowing the respondent to file a responsive statement of issues, facts and contentions. The need to proceed in that manner was because it was unclear to the Tribunal what specific regulated building service or services were being complained of by the applicant. This is because the complaints themselves identified the symptom of the problem, rather than the alleged cause or causes.
Further, this issue was complicated by the fact that three different parties had performed various remedial works at the Concourse Apartments over an extended period of time, and therefore it was essential to the current proceeding to clearly identify the nature and extent of the remedial work being complained of.
The matter was back before the Tribunal for a further directions hearing on 2 April 2019. The respondent at this time submitted to the Tribunal that it ought to determine the following preliminary issues:
(a)what regulated building service is the subject of complaint C162010 (Complaint); and
(b)whether the respondent carried out the regulated building service the subject of the Complaint.
The Tribunal did not accept that submission by the respondent, but noted at that time that it was the applicant's responsibility to clearly identify what regulated building service or services were the subject of its complaint. That was not a matter which could be retrospectively formulated by the Tribunal once the referral had been made. For this reason the Tribunal directed the applicant to provide a written submission clearly identifying the specific regulated building service/s by 9 April 2019 and ordering the respondent to provide its response as to whether it carried out the relevant regulated building service/s by 3 May 2019.
The matter came back before the Tribunal for further directions on 21 May 2019 at which time the Tribunal directed the respondent to file further written submissions by 11 June 2019, addressing in particular the question as to the basis on which the respondent, and a related party, Psaros Builders Pty Ltd, undertook remedial works at the Concourse Apartments, given that neither of those entities undertook the original construction.
It was made clear to the parties on this occasion that the Tribunal would determine whether the proceeding should be dismissed pursuant to s 47(1)(a) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) on the basis that it is misconceived or lacking in substance. The proceeding would be found to be misconceived or lacking in substance if there was no legal standing to make the complaints against the respondent.
The Tribunal made an order on 21 May 2019 that the matter as to whether the complaints ought to be dismissed or whether they should proceed to mediation or hearing would be determined entirely on the documents pursuant to s 60(2) of the SAT Act.

Submissions and evidence before the Tribunal

The Tribunal had before it in order to assist it the following:
(1)the applicant's statement of issues, facts and contentions together with annexed documents dated 13 February 2019;
(2)the expert report of Peter Grant Airey of Airey Taylor Consulting Engineers and Scientists dated 8 February 2019;
(3)the report of John Mai of Duratec Australia Pty Ltd dated 29 January 2019;
(4)the respondent's statement of issues, facts and contentions and annexed documents dated 28 March 2019;
(5)the applicant's summary of regulated building services the subject of the Complaint dated 9 April 2019;
(6)the submission of further information to assist at the State Administrative Tribunal prepared by the applicant dated 25 April 2019;
(7)written submission prepared by Mr Danny Psaros, director of the respondent dated 11 June 2019; and
(8)further written submissions prepared by the applicant dated 20 June 2019.

Relevant background facts

On 6 June 2012 the applicant lodged a building service complaint with the Building Commission against Psaros Constructions Pty Ltd (Psaros Constructions) in respect of its construction of the Concourse Apartments. The building service complaint alleged, in respect of the concrete slab over the carpark, a failure of the waterproof membrane and sought as a remedy that Psaros Constructions install/replace the waterproof membrane.
The matter was resolved at mediation and the parties executed a Heads of Agreement dated 11 December 2012. The Heads of Agreement provided, in relation to moisture penetration through cracks in the concrete soffit to the carpark, amongst other things, that Psaros Constructions would arrange for a scope of works to be prepared by a structural engineer providing specification as to the works required to be performed by Psaros Constructions. On the basis of the parties' agreement to resolve the matter, the complaint was withdrawn.
On 25 February 2013 Mr Selby Dutaillis, structural engineer with E-TEC Consultants (E-TEC), prepared a structural scope of works and specification in order to rectify the suspended slab cracking in the carpark of the Concourse Apartments. In particular, the scope of work required the following:
(a)in respect of the ground floor suspended slab top surface, the removal of all existing finishes, tiling (including all associated substrate on suspended concrete slab) and structures at locations of cracking;
(b)prepare substrate, mix and apply low-viscosity epoxy resin (Nitofill LV) in accordance with the manufactures specifications, details and documentation; and
(c)in respect of the ground floor suspended slab soffit, following an inspection period, and provided there is no further evidence of water egress, seal cracks with suitable flexible sealant, such as Sikaflex-Pro or suitable equivalent. Sealant is to be applied in accordance with the manufacturer's specifications and documentation.
(Page 2 of the E-TEC scope of works and specification dated 25 February 2013)
Some remedial works were undertaken by Psaros Constructions from early 2013 until in or about October 2013.
On 30 October 2013 Psaros Constructions was deregistered.
Between 30 October 2013 and August 2015, further complaints of water ingress into the basement carpark of the Concourse Apartments were made by the applicant.
During the period 30 October 2013 to early 2015, further remedial works were performed by Psaros Builders Pty Ltd (Psaros Builders). There was no formal arrangement as to the basis on which that remedial work was performed and it was performed during a time that Psaros Constructions no longer existed.
In early 2015 Psaros Builders ceased to be a registered building contractor. It therefore arranged for further remedial works to be performed by the respondent.
On 19 November 2015 Psaros Builders agreed to perform the following remedial works, set out in correspondence to the applicant's solicitor on that date:
(1)Area 1 (As per the attached floor plan). Water appears to be entering into the basement through the stormwater penetration and strip floor waste located outside Stair 1. Psaros Construction [sic] propose to flood test this area so the water ingress can be clearly identified. Once the leak has been identified the remedial works can be completed. The remedial works if required to the surrounding tiled areas will be as per the attached E-tech Report. …
(2)Area 2 and 3 (As per the attached floor plan). Water has been reported to be entering into the basement through the soffit of the concrete beams. The tiling and waterproofing was rectified over the common walkway, however the adjoining courtyards need to be checked. Psaros Construction [sic] proposed to flood test each area so the water ingress can be clearly identified. Once the leak has been identified the remedial works can be completed. The remedial works if required to the surrounding tiles areas will be as per the attached E-tech report.
(3)E-tech (Calibre Consulting) will be undertaking site inspections once the leaks have been identified to confirm if any further remedial works are required which have not been covered in the original report.
…
(Annexure 'J' to the applicant's statement of issues, facts and contentions)
Although the 19 November 2015 letter refers to Psaros Constructions, it is accepted in the respondent's statement of issues, facts and contentions that Psaros Builders was in fact undertaking the remedial work at that relevant time (para 24 of the respondent's statement of issues, facts and contentions).
The respondent's position is that Psaros Builders orally retained the respondent to undertake the remedial work as set out in the 19 November 2015 letter (written submission of Mr Psaros dated 11 June 2019). That agreement was never recorded in writing and the Tribunal is not aware of the basis on which the respondent undertook works on behalf of Psaros Builders.
Psaros Builders was deregistered on 7 August 2016.
The remedial work performed by the respondent commenced in or about May 2016 and concluded in July 2017.
The respondent submitted to the Tribunal that the remedial work it performed was limited to the following:
(a)replacing tiles and waterproofing to Commercial Tenancy Units 1 & 3 and Unit 26 in or about May 2016;
(b)re-sealing around a spoon drain beside a corridor entrance on the lower level and sealing around a BBQ in August 2016;
(c)replacement of tiles/screed and waterproofing to Units 19 and 30 between September and November 2016;
…
(e)remedial works to the drop beam on the right-hand side of the carpark entrance which consisted of:
(i)cleaning off efflorescence;
(ii)injecting cracks to the underside of the beams with polyurethane grout; and
(iii)removing and filling injection ports;
(f)coating beams with Gripset ST1 surface repair and waterproofing compound;
(g)core Testing of the drop beam on the left-hand side of the car park entrance on 21 January 2017;
(h)remedial works to the drop beam on the left-hand side of the car park entrance in or about April 2017;
(i)remedial work to cracks in the walls to Units 18 and 22 in March 2017;
(j)painting to areas of remedial work; and
(k)testing of all tiled areas carried out on 17 March 2017.
(Para 36 of the respondent's statement of issues, facts and contentions)
Following completion of the above remedial works, the applicant alleged that water ingress was continuing into the basement carpark at the Concourse Apartments.

Applicant's contentions

The applicant contends that in or about November 2015, the respondent undertook to perform a regulated building service for the applicant which comprised 'all works necessary to prevent water ingress from the concourse area of Concourse Apartments to the basement area' (para 35 of the applicant's statement of issues, facts and contentions). The applicant alleges that those works were not carried out in a proper and proficient manner or were faulty or unsatisfactory because the only manner in which water ingress from the concourse area to the basement area could be prevented was to do the following work which was not performed by the respondent:
(a)remove all existing brick walls seated upon the concrete substrate;
(b)remove all tiling and associated mortar bedding back to the concrete substrate beneath;
(c)place Strataflex over the entire area exposed to weather in accordance with the manufacturers recommendations; and
(d)re-establish walls and all tiled areas in accordance with all relevant codes and standards, including the reinstatement of single leaf brick courtyard walls with attached peers of rendered brick work and reinstatement of planter boxes if desired.
(Para 36 of the applicant's statement of issues, facts and contentions)
The applicant also alleges that the remedial works performed by the respondent were not carried out in a proper and proficient manner and were faulty and/or unsatisfactory because they failed to prevent water ingress in the areas where they were performed and also because they failed to follow either the original E-TEC scope of works and/or the scope of works identified in the 19 November 2015 letter (page 6 of the applicant's Submission of Further Information dated 25 April 2019).
The applicant claims the cost of remedial works required in order to prevent further water ingress in the amount of between $700,000 and $900,000 (para 37 of the applicant's statement of issues, facts and contentions).
In addition, the applicant contends that the respondent, during the performance of its remedial works, caused or permitted grout and cement slurry to enter the basement entry carpark channel drain causing a blockage to the stormwater system which has resulted in multiple instances of stormwater flooding of the basement carpark, the storeroom area and the lift servicing the basement carpark (para 43 of the applicant's statement of issues, facts and contentions). In respect of this complaint, the applicant seeks from the Tribunal a building remedy order for the payment of $75,089.95 comprising costs already incurred by the applicant in investigating and taking steps to mitigate the flooding and also the costs to satisfactorily remedy the complaint (para 48 of the applicant's statement of issues, facts and contentions).

Respondent's contentions

The respondent contends that none of the remedial work performed by it has been alleged to have been carried out in a manner which is not proper and proficient, or which is faulty or unsatisfactory. It says that the complaint remains the same complaint that the applicant brought against Psaros Constructions in 2012 which was compromised by those parties. That is, that the basement area to the Concourse Apartments was not constructed in a proper and proficient manner and/or was faulty or unsatisfactory due to water ingress. The respondent contends that it did not construct the Concourse Apartments and therefore is not responsible for the original complaint, and nor was it a party to the Heads of Agreement which ultimately settled the earlier proceeding.
In addition, the respondent submits that if the applicant is alleging that the Heads of Agreement has been breached, then again that is not a complaint that can be brought against the respondent on the basis that it was not a party to the agreement and the agreement has not been novated to it.
Further, the respondent submits that if the complaint is in effect a complaint in respect of the scope of works which was developed by ETEC following the execution of the Heads of Agreement by the applicant and Psaros Constructions, it was not a regulated building service performed by the respondent.
In relation to the complaint regarding storm water drain flooding, the respondent submits that the cause of the flooding relates to a defect in the original construction of the Concourse Apartments by Psaros Constructions based on a report dated 3 August 2017 from Banhams WA which identified that the flooding was caused by the pipework not penetrating the below ground Atlantis Cell (para 56 of the respondent's statement of issues, facts and contentions). The respondent contends that there is no evidence to support a position that remedial work performed by it has resulted in flooding of the storm water drain. Therefore the respondent submits that the complaint ought to be dismissed by the Tribunal on the basis of a finding that the regulated building service being complained of is the original construction performed by Psaros Constructions.

What is the regulated building service or services the subject of the complaint?

The Tribunal gave some latitude to the applicant to address the issue of what regulated building service or services was being complained of, in circumstances where a number of parties had been involved in the remedial works at various stages.
The applicant was initially legally represented whilst filing submissions on this point, and then became unrepresented and continued to file further lengthy submissions attaching documents in relation to this issue. It has therefore been a difficult process to clearly identify the regulated building services or services complained of.
Having given careful consideration to all of the various submissions filed by the applicant, together with a consideration of the expert reports and relevant documentation, the Tribunal has found that the applicant complains of the following regulated building service/s:
(a)The respondent designed a scope of works set out in the 19 November 2015 letter and performed the designed scope of works which was required to encompass all works necessary to prevent water ingress from the concourse area to the basement area. The design and the building work which followed the design constitutes a regulated building service which was not carried out in a proper and proficient manner or which is faulty and/or unsatisfactory because the design, and thus the building work itself, was deficient because it did not include all works necessary to prevent water ingress (para 1 of applicant's summary of regulated building services dated 9 April 2019);
(b)Alternatively to (a) above, the respondent designed a scope of works set out in the 19 November 2015 letter which intended Areas 1, 2 and 3 to be free from water ingress and implemented the design. Water continues to penetrate those specified areas and therefore the designed scope of works and the performance of the designed scope of works constitutes a regulated building service which was not carried out in a proper and proficient manner or which is faulty and/or unsatisfactory (annexure M to the applicant's statement of issues, facts and contentions and annexure E to the applicant's submission of further information dated 25 April 2019);
(c)The respondent failed to undertake the remedial work in accordance with the scope of works and specification stipulated by E-TEC and/or as required by the Heads of Agreement and in particular failed to carry out the removal of tiles and structures and the replacement thereof and the instalment of a waterproof membrane known as Strataflex (para 2 of applicant's summary of regulated building services dated 9 April 2019) and therefore the regulated building service was not carried out in a proper and proficient manner or was faulty and/or unsatisfactory; and
(d)The respondent failed to perform the remedial work in a proper and proficient manner by allowing concrete slurry to block and flood the storm water drains (para 3 of applicant's summary of regulated building services dated 9 April 2019).

Relevant legal principles

The legal principles are now well established in respect of the matters to which the Tribunal has regard when determining which entity carried out a regulated building service. The leading authority in this regard is Shami and Teo [2017] WASAT 73 (Shami).
Effectively the position is as follows:
(a)An entity has carried out the regulated building service if it has the overall responsibility for the entirety of the works or the entirety of the project, rather than individual elements thereof; Shami at [47];
(b)The entity who carries out the regulated building service has the role or responsibility of overseeing the project through to its completion; Shami at [48]; and
(c)The entity who carries out the regulated building service does not need to physically carry out the individual elements of the building work itself. It can arrange for others to perform the mechanics of the regulated building service; Shami at [48].
A determination as to who carried out a particular regulated building service therefore involves a careful consideration of the relevant facts.
As to what constitutes a regulated building service, this is defined in s 3 of the BSCRA Act as including:
a building service carried out by a registered building service provider or an approved owner-builder[.]
'Building Service' is defined in s 3 as including:
building work (as defined in the Building Act 2011 section 3)[.]
'Building work' is defined in s 3 of the Building Act 2011 (WA) (Building Act) as including:
(a)the construction, erection, assembly or placement of a building or incidental structure; or
(b)the renovation, alteration, extension, improvement or repair of a building or an incidental structure[.]
Mitchell J in Diploma Construction (WA) Pty Ltd and South Central WA Pty Ltd [2015] WASC 289 (Diploma Construction) considered whether design in and of itself can constitute a regulated building service or building work. That decision found that design in and of itself, absent any building work (as defined in s 3 of the Building Act) does not constitute a regulated building service to which the BSCRA Act applies. However, deficiencies in design can be taken into account as long as building work is involved.
Ultimately, it is the building work itself which must be found to have not been carried out in a proper and proficient manner or which is faulty and/or unsatisfactory. It can be found to be so if the design itself is deficient and therefore the building work is similarly deficient when following the design. For example, if a design fails to comply with requirements of the local government authority or with applicable provisions in the Building Code of Australia, and the building work has followed the design and thus has the same deficiencies, it is the building work itself which can be found to have not been carried out in a proper and proficient manner or which is faulty and/or unsatisfactory; DiplomaConstruction at [35].
In relation to the exercise of the power set out in s 47(1)(a) of the SAT Act, the Tribunal notes that it must proceed with a great deal of caution when considering an application to dismiss at an early stage of proceedings before it has received the full benefit of production of documents and receipt of oral evidence; Laurent and Commissioner of Police [2009] WASAT 254 at [20] (Laurent).
In considering whether to dismiss the proceeding, given that the consideration is being made at an interlocutory stage, the Tribunal must assume that the factual assertions being made by the applicant will be established; Ambrus and Churches of Christ Homes and Community Services Incorporated [2006] WASAT 141 at [16] (Ambrus).
The exercise of the power can be used to dismiss the proceeding in its entirety or part thereof; Laurent at [24]. In the context of the current proceeding it would need to be established that the application is 'obviously untenable', that it 'cannot possibly succeed' and/or is 'manifestly groundless'; Ambrus at [8].

Is the applicant's complaint misconceived and/or lacking in substance?

Design/scope of work of all works necessary to prevent water ingress

The first regulated building service complained of by the applicant is effectively that the respondent failed to design and implement a scope of works which encompassed all works necessary to prevent water ingress from the concourse area to the basement area.
The Tribunal has found that this aspect of complaint 1 must be dismissed for the following reasons.
Firstly, the Tribunal is not satisfied that the respondent was engaged to design or to implement a design of 'all works necessary to prevent water ingress' from the concourse area to the basement area. Therefore this is not a regulated building service that the respondent carried out.
In addition, this aspect of the complaint appears to be a reiteration of the initial complaint lodged by the applicant against Psaros Constructions and which was settled between the parties by way of a Heads of Agreement. The remedy by way of a design to prevent all further water ingress was one sought by the applicant from Psaros Constructions at mediation and resulted in the formulation and agreement of the Heads of Agreement. It cannot now be reagitated against the respondent as it did not construct the Concourse Apartments and nor was it a party to the Heads of Agreement.
If the applicant contends that the Heads of Agreement has been novated, and seeks to bring a claim for breach of contract, then that takes this aspect of the complaint outside of the jurisdiction of this Tribunal.
Design and implementation of scope of works to remedy water ingress into Areas 1, 2 and 3
In respect of the design/scope of works set out in the 19 November 2015 letter and the respondent's implementation of those works, the applicant submits, alternatively, that they were required to carry out all works necessary to prevent water ingress into three specified areas. On the basis that water ingress continues into those areas, the applicant asserts that the remedial works performed were not carried out in a proper and proficient manner and/or are faulty and/or unsatisfactory.
The Tribunal finds that the works undertaken by the respondent from August 2016 to July 2017 constitutes a regulated building service for which the respondent is legally responsible. The Tribunal does not accept that during that period of time the respondent was performing the work for the then deregistered Psaros Builders or the then deregistered Psaros Constructions. To make such a finding would simply have no basis in fact. Once the respondent agreed to perform the works, it agreed to perform them subject to the provisions of the BSCRA Act.
The facts of this case are entirely different to those found in Owners of Strata Plan 52843 and Psaros Pty Ltd [2018] WASAT 113. In that case the respondent was retained by Psaros Builders to perform works pursuant to terms of a contract and in respect of which it received payment; at [40]. Psaros Builders had been required to perform building work pursuant to a building remedy order made by the Tribunal and remained legally responsible for the works performed. Psaros Builders did not deregister until the works were completed and a Notice of Completion in respect of the works was issued; at [39] [42].
The facts of this case are in clear contrast. The respondent, whilst performing the remedial works could not have been performing them pursuant to any formal agreement with Psaros Builders. It did not exist during the substantive period of time that the works were carried out. The only entity which could have carried out the regulated building service during the relevant period of time is the respondent. There is no evidence before the Tribunal that it was performing the works at the direction of another party.
The totality of the works set out in the 19 November 2015 letter, is what constitutes the relevant regulated building service, and it was performed solely by the respondent.
In relation to the assertion by the applicant that the design/scope of works set out in the 19 November 2015 letter required, at the very least, prevention of water ingress into three marked areas of the Concourse Apartments, the Tribunal accepts that submission. It is clear from the terms of the letter that the intent was to address and rectify water ingress into those specific areas. If the design or scope of works was deficient to achieve that objective, and therefore the building work carried out by the respondent is similarly deficient, it is open to the Tribunal to find that the remedial work was not carried out in a proper and proficient manner or is faulty and/or unsatisfactory.
It will be a matter for evidence at the final hearing as to whether water is still ingressing into one or more of the three relevant areas. However for the purposes of this determination, this is a regulated building service carried out by the respondent.
Design/scope of works required by the Heads of Agreement/E-TEC not carried out
The applicant has also raised as part of its complaint 1 against the respondent that it did not carry out the remedial works performed by it during May 2016 to July 2017 in a proper and proficient manner or that those works are faulty and/or unsatisfactory because it failed to perform the works in accordance with the scope of works and specification required by ETEC. The alleged works that it failed to undertake are identified at [37(c)] above.
It is not in contention between the parties that the identified works were not performed by the respondent. What is in contention is what scope of work was required to be performed by the 19 November 2015 letter and whether the scope of work was carried out in a proper and proficient manner or whether it was faulty or unsatisfactory.
In the Tribunal's view, the scope of works is arguably quite broad and may include those works which 'have not been covered in the original report' prepared by E-TEC. It appears to the Tribunal that the scope of works may have included the obligation to ensure that the original ETEC report had been complied with as evidenced by the following excerpts from the 19 November 2015 letter:
•Psaros Construction Pty Ltd [sic] proposes further investigation and repair works as per the original scope of works prepared by E-TEC.
•Psaros Construction propose to flood test this area so the water ingress can be clearly identified. Once the leak has been identified the remedial works can be completed.
•The remedial works … will be as per the attached E-TEC report.
•E-TEC (Calibre Consulting) will be undertaking site inspections once the leaks have been identified to confirm if any further remedial works are required which have not been covered in the original report.
(Emphasis added)
Therefore in the Tribunal's view the remedial works undertaken by the respondent are not necessarily limited in the manner contended by it (refer to [25] above). It is open for the applicant to persuade the Tribunal that the regulated building service agreed to be performed by the respondent was to complete all outstanding works as required by the original scope of works prepared by ETEC but perhaps limited to the specified three areas.
Further, in the Tribunal's view the failure to perform certain aspects of a scope of works can constitute a regulated building service which has not been carried out in a proper and proficient manner or which is faulty or unsatisfactory for that reason.
Therefore in the Tribunal's view this aspect of complaint 1 cannot be dismissed at this point of the proceeding. However, in the Tribunal's view it is open to the respondent at the final hearing to make submissions as to what the E-TEC scope of works required, as referenced in the 19 November 2015 letter, whether that scope of work has been carried out by the respondent, and whether it has been carried out in a proper and proficient manner, or is faulty and/or unsatisfactory.
The decision of the Tribunal currently is simply that the building service complaint in this respect can properly be made against the respondent and ought not to be dismissed. It will require the receipt of further evidence at a hearing to ultimately determine liability.

Complaint 2: Storm water drain flooding

The Tribunal accepts that at the present time this complaint item could have been caused by one or more regulated building service. That is, it may be as a result of the original regulated building service performed by Psaros Constructions (refer to [34] above) and/or it could be as a result of cement slurry sourced from the respondent's remedial works. It is therefore open for the applicant to contend to the Tribunal that this complaint arises from a regulated building service performed by the respondent and thus on that basis in the Tribunal's view it is not appropriate that the complaint item be dismissed.
Conclusion
On the basis of the above findings, the Tribunal is of the view that only part of complaint 1 ought to be dismissed on the basis that it is misconceived and/or lacking in substance. Complaint 1 effectively identified three regulated building services on the basis of three alternative proposed scopes of work/design which were then implemented by the respondent. Whilst the Tribunal finds that there is a basis to proceed with two of the alternative scopes of work/implementation, the Tribunal is of the view that the main contention of the applicant, as set out at [27], is obviously untenable and cannot possibly succeed as against this respondent for the reasons set out at [49] [53] above. In essence, there is no evidence before the Tribunal that it was a scope of works which the respondent agreed to perform. In fact, the evidence before the Tribunal supports the position that a scope of works necessary to prevent water ingress, if agreed to be performed at all, was only ever a scope of works agreed by the entity who originally constructed the Concourse Apartments, Psaros Constructions.
In respect of complaint 2, in the Tribunal's view this complaint is open to be pursued as against the respondent and will require receipt of evidence and examination of that evidence at a final hearing to ultimately determine liability. It cannot be said at this interlocutory stage that the complaint is obviously untenable or cannot possibly succeed as against the respondent.

Orders

The Tribunal therefore makes the following orders:
1.To the extent that complaint item 1 identifies that the relevant regulated building service is the design and performance by the respondent of a scope of works required to encompass all works necessary to prevent water ingress from the concourse area to the basement area, that part of the complaint is hereby dismissed pursuant to s 47(1)(a) of the State Administrative Tribunal Act 2004 (WA).
2.The remaining allegations in respect to complaint item 1 and complaint item 2 ought not be dismissed by the Tribunal and will proceed.
3.The proceeding is listed for a directions hearing at 10.30 am on 16 July 2019 in order to program the matter to mediation and/or final hearing.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS C WALLACE, SENIOR MEMBER
9 JULY 2019