Owners Of Strata Plan No 46493 and Smith
[2012] WASAT 218
•31 OCTOBER 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)
CITATION: OWNERS OF STRATA PLAN NO 46493 and SMITH [2012] WASAT 218
MEMBER: MR T CAREY (MEMBER)
MR P MITTONETTE (SESSIONAL MEMBER)
HEARD: 17 MAY, 1 AND 2 AUGUST 2012
DELIVERED : 31 OCTOBER 2012
FILE NO/S: CC 32 of 2012
BETWEEN: OWNERS OF STRATA PLAN NO 46493
Applicant
AND
BRIAN INGLIS SMITH
Respondent
Catchwords:
Building dispute Multistorey building Claims that building works not carried out in proper or proficient manner and being faulty or unsatisfactory Water ingress in various locations Failure of respondent to produce evidence to support position Remediation works required Quantification of remediation cost
Legislation:
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 11(1)(d), s 38(1)
State Administrative Tribunal Act 2004 (WA), s 66(5)
Result:
Application successful
Remedial costs order made
Summary of Tribunal's decision:
The applicant sought a remedial costs order in respect of four claims of defective building work impacting upon a five storey residential development. The claims concerned the ingress of water from, through or into two elevations of the building, balconies, roof and belowground garage.
The Tribunal had previously decided, on a preliminary issue basis, that the respondent was properly joined as the builder. However, the respondent's compliance with the usual prehearing programming directions was extremely limited.
The Tribunal considered the applicant's claims, the evidence in support of the claims, and the responses of the respondent, such as they were. As required by the governing legislation, it was satisfied in the case of each claim that the building work had not been carried out in a proper and proficient manner, and that the building work was faulty or unsatisfactory.
The Tribunal went on to consider, in each case, the evidence of the applicant going to both the remediation works required to correct the defects, and the remediation cost. In the absence of any content by the respondent to the applicant's evidence, the Tribunal's order reflected the lowest cost of works required to ensure the proper performance of the building going into the future.
Category: B
Representation:
Counsel:
Applicant: P Wellington (Acting as Agent)
Respondent: Self-represented
Solicitors:
Applicant: N/A
Respondent: N/A
Case(s) referred to in decision(s):
Owners of Strata Plan No 46493 and Smith [2012] WASAT 41
REASONS FOR DECISION OF THE TRIBUNAL:
Overview
This application concerns what is described as a building owner's longstanding dispute with the builder. The building in question is a 20 lot residential, five storey (excluding a basement car park) strata development situated at No 178 Bennett Street, East Perth.
The owner (Sapphire Apartments) is the strata company for the strata scheme which controls and manages the common property of the building. A differently constituted Tribunal from the present one decided on 24 February 2012 that Mr Brian Smith had been correctly joined as the builder, or, more correctly, the party which carried out the relevant regulated building service, against Mr Smith's challenge to that proposition. Mr Fanjo Turibaka was, in the same decision, found not to have had any such involvement and was discharged from the proceeding.
Sapphire Apartments' original complaint included eight separate claims. Those claims were, in the course of the prehearing processes in the Tribunal, reduced to four. This would normally be met with the approval, and certainly not the condemnation, of the builder, but appears to have had the opposite effect on Mr Smith. We will return to this.
In any event, the claims which it is our task to determine are limited to four surviving claims, each of which is concerned with water ingress issues. The four claims are described as:
Claim 1[originally claim 1] Water entry to south elevation attributed to window seal failure.
Claim 2[originally claim 2] West facing balconies.
Claim 3[originally claim 3] Roof.
Claim 4[originally claim 5] Water entry to subbasement garage.
In relation to each of these claims, Sapphire Apartments contends that it has demonstrated that the condition for relief prescribed by the governing legislation - that the building service has not been carried out in a proper or proficient manner, or the building service is faulty or unsatisfactory is satisfied. We will refer to any response of Mr Smith to each claim in our separate consideration of the claims.
Sapphire Apartments seeks, in relation to each claim, a remedial costs order that is, an order for the cost of rectification of the defect. Its initial complaint had specified an order for rectification by the builder. However, as it explained when the matter first came on for hearing, Sapphire Apartments has lost faith in Mr Smith, and Mr Smith has indicated his lack of interest in undertaking remediation works, including, but not limited to, his contention, undiminished by the Tribunal's decision to the contrary, that he is not the builder.
Prior to commencing our consideration of the complaint items, we wish to make some observations regarding the somewhat tortuous history of the matter. We do so in the hope that Mr Smith, in particular, might gain a clearer understanding of the Tribunal's requirements for the parties in disputes it is called upon to determine, and to address what we regard as certain misconceptions on his part which compromised the presentation of his case.
Observations regarding the history of the proceeding and conduct of the hearing
The original complaint of Sapphire Apartments against Mr Smith and Mr Franjo Turibaka was filed with the Building Commission on 29 November 2011. On 5 January 2012, the Building Commission referred the complaint to the Tribunal under s 11(1)(d) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) generally, and also in order to determine the correct respondent(s).
At the initial directions hearing in the Tribunal, the proceeding was listed for hearing on 10 February 2012, limited to the preliminary issue of whether the Tribunal has jurisdiction, given various matters raised by the then respondents, including their claims that (essentially) they were not the builder. On 24 February 2012, the Tribunal, constituted by Member Lisa Ward, determined that the Tribunal does have jurisdiction. As for the issue of the correct respondents, Mr Smith, but not Mr Turibaka, was found to have been correctly named. Mr Turibaka was accordingly discharged from the proceeding. Oral reasons for the decision on the preliminary issue were given on the day, which were subsequently published, in edited and revised form, as Owners of Strata Plan No 46493 and Smith [2012] WASAT 41.
At a directions hearing on 15 March 2012, directions programming the proceeding to a hearing were made. Those directions included:
•the applicant to provide a list of matters in issue for determination by the Tribunal;
•the applicant to ensure that the building was made available for inspection by the respondent, in order that the respondent be in a position to respond to the matters in issue;
•the respondent to provide a response to each of the matters in the applicant's list;
•both parties to provide all documents upon which they wish to rely which had not previously been provided, including expert reports, photographs and quotations or other documents relevant to the costings of the complaint items to be determined by the Tribunal; and
•the matter was listed for final hearing on 17 and 18 May 2012.
A letter dated 21 March 2012, on behalf of Sapphire Apartments, indicated that all eight original claims were being pursued. By his document received by the Tribunal on 12 April 2012 (reproduced in the hearing book commencing at page 330), Mr Smith gave a short response to each claim.
On 26 April 2012, while the hearing dates were preserved, the matter was referred for mediation on 8 May 2012. Unfortunately, the mediation was not successful in resolving any issues and was terminated.
On 10 May 2012, the Tribunal issued the first of what turned out to be a number of summonses to witness at the request of Mr Smith. This first summons was directed to Mr Turibaka. Based upon his claim that the information sought from Mr Turibaka was required before Mr Smith would be able to proceed with the hearing, on 14 May 2012, Mr Smith sought an adjournment of the hearing. This application was heard in the presence of both parties on 16 May 2012, when it was refused.
The hearing duly commenced on 17 May 2012. The Tribunal was constituted by Ms Ward and Sessional Member Peter Mittonette.
At the end of the first day, a discussion occurred about the fact that one of Sapphire Apartments' witnesses that day, Mr Thorpe, had to leave before Mr Smith had crossexamined him, and the realisation, in light of the evidence adduced to that point, that further evidence of an expert and costing nature was required. The parties consented to an order that the second hearing day be vacated. In addition:
•the applicant was directed to provide any additional evidence upon which it intended to rely;
•the respondent was directed to provide any documents and evidence in response to the applicant's additional evidence; and
•new hearing dates were fixed. Subsequently, the hearing dates were amended to 1 and 2 August 2012.
For reasons which appear in the transcript of a directions hearing before the President of the Tribunal, Justice Chaney, on 12 June 2012, the Tribunal was reconstituted, for the purpose of determining the proceeding, so as to replace Ms Ward with Member Tim Carey.
On 29 June 2012, the times permitted for the parties' additional documents and evidence by the order of 17 May 2012 were extended.
On 11 July 2012, the applicant filed a document entitled 'Supplementary/Amended Claims'. This document did two things. It advised that Sapphire Apartments was withdrawing four of the eight original claims. It also provided, in relation to each of the continuing claims, a brief description of the claim, the evidence relied upon to support the claim, a description of the remedial work required and a reference to relevant costing evidence. The evidence referred to was to reports previously provided and also fresh expert reports, which were provided, consistently with the directions made on 17 May 2012, with the 'amended claims' document.
It is important to note that despite both the additional evidence provided by the applicant and the direction for the provision of answering material by the respondent, assisted by the earlier provision for an inspection, Mr Smith failed to file any such material before the resumption of the hearing. This is likely attributable to his belief, which he mentioned a number of times, that his joinder as sole respondent was incorrect; that he was not the builder. As was explained to him whenever he expressed this belief, the Tribunal's decision to the contrary, on a preliminary issue basis, had the effect that he was not able to rely upon such an argument at the hearing.
It would appear that Mr Smith preferred to rely solely upon the production of documents and other evidence in response to a number of summonses to witness he caused the Tribunal to issue, and his crossexamination of Sapphire Apartments' witnesses. As any lawyer experienced with litigation would have advised him, such a strategy is fraught with danger.
Without in any way being exhaustive, we will, in our consideration of the various claims, refer to the subject of some of Mr Smith's crossexamination of the applicant's witnesses. It is fair to say none of Mr Smith's crossexamination weakened appreciably, if at all, the force of the evidence given. In addition, the crossexaminer tended to rely upon matters of mere assertion without ever providing evidence to support the assertion.
As for the summonses to witness, apart from Mr Turibaka, the persons or organisations summoned were Hillam Architects (David Hillam), Strata Administration Services (Warren Kiddle) and Mytek Contracting. The summonses were either the subject of a successful application to set it aside, or were not pursued by Mr Smith. The grounds for setting the summonses aside included their oppressive nature and lack of probative value of the documents being sought.
Given the total failure of Mr Smith to produce, in accordance with the Tribunal's directions, evidence which would have been readily accessible, going directly to the issues in the case, he can hardly attribute the failure of his 'defence' to the various claims to any decision of the Tribunal on the summonses.
Mr Smith did, on 20 August 2012, attempt to provide documentary evidence, which, according to his covering letter, may or may not have already been part of the Tribunal's record. Of course, to the extent that any of this material was not before us at the hearing, it was filed at a time after the Tribunal had heard the matter and reserved its decision, and we can not have, and have not had, regard to it.
One final remarkable feature of Mr Smith's approach at the hearing was his heightened concern surrounding the late amendment of the application reducing the number of claim items from eight to four. Until prevented from doing so, he attempted to embark on a forensic analysis of the origins, and where relevant, the withdrawal, of each claim, in an apparent attempt to uncover some malevolent motivation on the part of the applicant, rather than simply concentrating on the four surviving claims. This is another example of Mr Smith's tendency to become sidetracked and not confront the real and serious issues that Sapphire Apartments' case presented for him.
Consideration of continuing building defect claims
Claim 1: south elevation
In its 'amended claims' document, Sapphire Apartments described both the cause and effect of this claim item as follows:
That the window frames to Sapphire Apartments do not provide a water seal resulting in water entry to internal room finishes resulting in deterioration to wall, ceiling and floor finishes.
There are, we were informed, 34 external windows on the southern elevation of the building. There are also 15 windows on the eastern elevation. Each of the 49 windows is, in Sapphire Apartments' case, impacted by the same defect. Mr Smith, when asked, did not object to the expansion of the claim to include the 15 east windows.
As we will discuss shortly, Mr Smith submitted that the extent of the problem of water ingress through windows at the complex was limited to two apartments. It is true that Sapphire Apartments' expert evidence is based upon a sample only of the 49 windows. For example, the report of BSP Construction Consultants (BSP) dated 26 September 2011 (commencing at hearing book page 171) reports only on Units 9 and 13. In the case of each unit, the author of the report is in no doubt that moisture ingress evident on the inside of each apartment is associated with water coming in through an adjacent window frame. The BSP reports are replete with photographs showing points of water ingress associated with the windows, and an opinion on the inadequacies of the windows causing or contributing to it.
A 3 October 2011 'building condition audit' of BSP expands the number of units which it regards as having a similar problem. The later report referred to evidence of moisture penetration in Unit 1 past both southwestern bedroom windows, and evidence of moisture penetration to the wall below the south facing window outside Unit 5 is referred to. The water penetration previously noted in Units 9 and 13 is affirmed.
Both Mr Porteous, who carried out the inspections, and Mr Thorpe, whose precise involvement was not explained, but who, as a building inspector employed by BSP, was presented as a witness on the first hearing date to explain the BSP reports, confirmed the views expressed in the reports.
Sapphire Apartments also relied upon the expert evidence of Mr Neil Edmunds.
Mr Edmunds, who described himself as a retired consultant to the aluminium window industry, has been involved in the building industry since 1948 and with aluminium windows since 1952, including their installation, design and construction.
Mr Edmunds was engaged to inspect and report upon the water ingress problem in Unit 1. His written report appears in the hearing book commencing at page 390.
According to Mr Edmunds, the aluminium framing system used for the window in Unit 1, being a flush or pocket glazed system, together with the method of installation, 'is the major cause of the rain penetration'.
Mr Edmunds' report explained that the system is selfdraining of water through the glazing to the sill, which requires a positive waterproof subsill or sump-sill with drain slots directing the water to the outside. In the unit he inspected, simple pressed aluminium subsills were deployed, without any gap between them and the sill members at the outer face of the frames. Therefore, rainwater would be held within the frame.
Mr Edmunds observed a number of other deficiencies with the installation of the windows.
According to Mr Edmunds, the sealant between the internal turnup leg and frame appeared to be inadequate. He also suspected that the sealing to the sub-sill and structure is faulty. He pointed out that only a small area of lack of sealant is required to allow rain penetration to the inside, particularly when there is no drainage to the outside.
Mr Edmunds indicated that a lack of sealant in the angle trims, extruded subheads and pressed subsills was a major cause of rain penetration. Additionally, according to Mr Edmunds, the failure to use subhead gaskets may have contributed to the rain penetration problem, particularly higher up the building where wind pressure increases.
Mr Edmunds did not observe any weaknesses in the joints in the concrete structure (we have in mind where the walls and floors join), which appeared to him to have been adequately sealed.
Mr Edmunds provided two broad alternatives for corrective work wherever frames are allowing rain penetration.
Sapphire Apartments also relied upon the evidence of Mr Ian Green, who is the managing director of Green Style Windows a window supply and installation company.
Mr Green gave evidence of systemic deficiencies with the installation of the external windows in the complex, with particular reference to a failure to properly seal windows inconsistent with regulations requiring a nonbroken line of sealant, and sill trays of the windows leaning back towards the building, rather than away from it as one would expect.
Mr Green performed the removal of a window in the lobby exhibiting these characteristics. He said that there were gaps at the bottom of the sub-sill from the inside to the outside through inadequate sealing. He also commented on the subhead at the top of the window frame, which he explained was designed to allow the head to move, with two internal channels sealed with 'mohair', a device utilising long length fibre hair on either side of a plastic seal. The lobby window did not have the mohair. He attributed the greatest responsibility for the water ingress to this factor. Finally, Mr Green made reference to the same problem with sub-sills (which he preferred to call sill trays) as identified by Mr Edmunds.
Mr Green suggested, after looking at the south wall of the building, that all of the windows suffered from the same defects. This inference was drawn based on the evidence he had seen of water damage related to windows throughout the building, and the likelihood that the same methods of installation and sealing were utilised throughout. When asked in crossexamination, Mr Green said that the windows had not been installed in accordance with the Australian Standards.
Two of the owners of lots in the scheme also gave evidence:
1)Ms Harwood, owner of Unit 1, who also appeared on behalf of Sapphire Apartments in the presentation of the hearing; and
2)Ms McFarlene, an owner of Unit 13.
Both of these witnesses gave evidence of the serious and enduring nature of water ingress issues they have in any room which has an external window along the southern or eastern wall of the building. Both witnesses also gave evidence of their having witnessed similar water ingress issues in other units in the building. Ms McFarlene said that she had struck up a relationship with tenants in the unit immediately above hers owned by Mr Turibaka. Mr Turibaka is the owner of a number of apartments in Sapphire Apartments. Mr Turibaka himself has never raised similar problems with the strata company, and refused to participate in the claims made by Sapphire Apartments, which, we note, might be explained by the fact that Mr Turibaka was originally joined as a respondent to the claims. Ms McFarlene said that the tenants of the apartment above hers, owned by Mr Turibaka, told her that they have a number of leaks in their apartment of a similar nature to hers.
In the only written document filed by the respondent purporting to disclose Mr Smith's attitude to the various claims (commencing at hearing book page 330), being a document received by the Tribunal on 12 April 2012, Mr Smith stated that further investigation was required to determine the source of the water ingress. The reference in this response to the claim regarding the window frames on the south elevation was limited by Mr Smith to Units 1, 9 and 13. This response was ultimately refined somewhat in Mr Smith's closing submissions, when he informed us that the only windows which ever leaked were in Units 1 and 9, and that the leaking windows had been replaced.
We are satisfied, on the evidence, that the numerous deficiencies identified by the expert witnesses in respect of the installation of windows in the lobby and in Units 1, 9 and 13, which contributed to the failure of the windows to provide an adequate barrier to water making its way through the window aperture to the interior of the building, amounts to a failure to carry out the regulated building service in a proper and proficient manner, and to the work being faulty and unsatisfactory. Further, on the basis of the evidence, such as it is, of internal leaking in the building adjacent to windows situated in other units, together with the high degree of probability that the same method of installation applied to all 49 windows on the southern and eastern elevations of the building, we are satisfied that all windows are similarly afflicted.
In relation to Mr Smith's claim in relation to Units 1 and 9 that the windows have been fixed (made, in addition to his closing submission, by Mr Smith a number of times in his crossexamination of witnesses), the suggestion was never elevated above the level of mere assertion. No evidence of any substantial work to the windows (such as their replacement) was led. The suggestion, even if it were true, did not provide an answer to the clear and direct evidence of Ms Harwood and Ms McFarlene to the effect that, in respect of at least their respective units, the problem with water coming in through one or more windows in their respective units is ongoing.
Assessment of remedial cost
Mr Edmunds proffered two alternative solutions to correct the defects with the windows. In light of the preference for a dependable, permanent solution which will provide certainty for Sapphire Apartments that the water penetration problems will come to an end, we accept that the first alternative of replacing all frames with new frames, each meeting manufacturer's recommendations and with the correct installation, with glazing medium throughout to be neoprene or santoprene and meeting all Australian Standards, is the proper basis to assess remedial cost. Mr Smith did not seek to argue the selection of Mr Edmunds' first alternative over any other.
Mr Green accepted as reasonable, and provided a quotation in respect of, Mr Edmunds' first alternative for $82,154, exclusive of GST. As we will explain, further costing evidence of Mr Mark Taylor, a quantity surveyor, which has been accepted in respect of the remaining claims, contains a general provision for scaffolding, which can therefore be omitted from Mr Green's quotation. Allowing further smaller allowances made by Sapphire Apartments at the hearing, the amount we consider as the reasonable cost of remediation of the 49 windows is $76,307.40, inclusive of GST.
Claim 2: west facing balconies
The 'amended claims' document refers to this complaint in the following terms:
That the tiled floors to the west facing balconies do not provide a seal resulting in water draining to the ceiling lining in the balconies below.
This claim was the subject of an inspection and report by Mr Richard Machell (Prescient Consulting), a registered builder of 40 years' experience. Although Mr Smith, in his crossexamination of Mr Machell, mounted a veiled challenge to Mr Machell's experience and expertise, we are satisfied that the matters upon which he reported and gave evidence regarding possible building defects and possibilities for their remediation are matters properly within his expert knowledge. And, as we have pointed out, Mr Smith wholly failed to produce any evidence to contradict or challenge that of Mr Machell.
In his report, which is reproduced in the hearing book commencing at page 337, Mr Machell states that he carried out a visual inspection of each of the soffits of the west facing balconies of the building. He did not carry out destructive testing. Each of the balconies is of concrete construction and floors and walls are tiled.
Mr Machell reported that water staining is evident in respect of each soffit. The extent of the water staining is generally consistent and occurs at some corners. In the case of the soffit above Unit 12, the incidence is approximately 30% of the total area.
His report went on:
Having reviewed the scope and extent of the water damage to the soffits of the various [balconies], it is apparent that in all but [one] location the damage occurs at corner junctions of the floor and concrete upstand to the balcony floor and [is] likely as a result of a failure to install a movement joint or bond breaker in these locations.
The extent of the water damage does not manifest in all corners, but typically at 2 or 3 of the 4 sides or corners of each balcony and not at the corner junction where the door enters the internal area of the unit. It might be reasonable to conclude that only corner joints are leaking[;] however[,] I am unable to be definitive about this and it is feasible that the membrane has failed in a location but is manifesting on the ceiling below in a different location.
In the case of the soffit above [U]nit 8, it is likely, in my opinion, that in addition to the water damage at the corners, the waterproofing membrane has either been incorrectly installed, or not installed at the floor waste, or alternatively, the floor waste itself is leaking.
In any event, it is evident that water is penetrating through the balcony floors and water staining and damaging the painted fibre cement linings and batten supports below the balcony floor so that the fabric of the soffit within the lifetime of the building will, unless rectified, become detached and require replacement.
Mr Machell's report, under 'Remedial Work', discounted the possibility of the repair of 'leaking tiles' by penetrating sealers in the grout joints between the tiles as not providing a longterm solution and often requiring periodic reapplication. He went on to consider three more permanent repair options.
Mr Smith, in his closing submissions, downplayed the extent of the water damage to the balconies, and regarded this as a lowcost item. Both these bald assertions fly in the face of Mr Machell's expert evidence to the contrary. That evidence is to the effect that the damage is present and consistent in the case of all balconies, and that a permanent solution entailing substantial remediation works is necessary.
We are satisfied, on the evidence, that the deficiencies identified by the expert witness in respect of the balconies, demonstrating the failure of the balconies to provide an adequate water barrier to the soffits of the balconies below, amounts to a failure to carry out the regulated building service in a proper and proficient manner and the building service being faulty and unsatisfactory.
Assessment of remedial cost
Of the three options for repairs specified in the Prescient Consulting report, consistent with the objective of providing an adequate longterm solution, option 2 (remove all floor tiles, install a waterproof membrane in accordance with the relevant Australian Standard and install new floor tiles, patch and paint water damage to soffits below balcony floor) is entirely appropriate. This is the only option which ensures that the waterproofing failure in evidence to date is rectified, tiles match each other, and, looking to the future, no further substantial works will foreseeably be required to ensure the proper performance of the balconies.
The only costing evidence provided for remediation of the balconies using option 2 is that of Mr Taylor, appearing in the hearing book at page 388B. It includes significant amounts for example, over $64,000 for replacement of floor and wall tiles and comes to a GSTexclusive total of $132,498. In the absence of any other evidence, we will allow this sum, expressed as the GSTinclusive amount of $145,747.80.
The amounts assessed for this and the next claim item by Mr Taylor expressly include the remediation which we find to be required in respect of claim 4 concerning the sub-basement garage. The same amounts exclude certain preliminary costs, to which we make reference later in these reasons.
Claim 3: roof
In the 'amended claims' document, this claim is described as follows:
That the roof does not provide a seal with water entering apartments below.
The principal evidence relied upon by Sapphire Apartments in respect of this claim is once again that of Mr Machell. According to his report, Mr Machell conducted an inspection of the roof from roof level and via ladder access through a roof manhole at the upper level.
In his report, Mr Machell describes the roof sheeting as generally being in good condition and screw fixed in accordance with the manufacturer's recommendations. However, his report identifies a number of characteristics of the water drainage mechanisms of the roof which he suggests are unsatisfactory and may be contributing to the ingress of water into the building.
The matters indentified by Mr Machell are:
(a)Box gutters (constructed in nine separate sections) are of inadequate height, and in some cases, sump depth and width.
(b)Excessive amounts of sealant have often been used in box gutters in conjunction with pieces of flexible flashing.
(c)In the roof on the south side of the building, a secret gutter has been installed at the low end of the roof, contrary to good trade practice and the relevant Australian Standard. As a result of the inappropriate installation, substantial amounts of silicone and flexible flashings have been installed in an attempt to achieve a seal at the wall junction and at the secret gutters.
(d)Of the nine vent pipes in the roof, five have been installed so that the pan of the roof sheeting is blocked, resulting in water ponding.
(e)Four exhaust pipes have been similarly incorrectly installed.
(f)One airconditioning mount has been sealed at the junction of the roof sheeting resulting in water ponding.
(g)There are incidents of roof sheeting sloping less than five degrees without the roof sheet valleys being turned down in accordance with the manufacturer's requirement.
(h)Roof sheets where it is lapping have not had the under sheet cutback to block capilliary action, in accordance with the manufacturer's requirement.
In Mr Smith's written response (commencing at hearing book page 330), the following response to the present claim appears:
This is not a Builder's issue. If water accumulates or overflows in storm conditions then this is a design problem and the Architect should review his design.
In contrast, in his closing argument, Mr Smith claimed that:
The roof does not leak.
Mr Machell's report deals specifically with the extent to which the roof, as constructed, corresponds with the architectural design and the hydraulic design for the building. Both designs are reproduced in his report and the hearing book. The architectural design is reproduced at hearing book page 361, and the hydraulic design at hearing book page 358, the latter document having been marked up by Mr Machell to indicate features of the as constructed roof.
Mr Machell explains in his report the differences between the as constructed roof and design drawings as follows:
•Box gutters are constructed in 9 separate sections … The architectural design drawing … shows 6 separate box gutters. The hydraulic design drawing shows 6 differently located box gutters and 2 eaves gutters[.]]
•At [two locations on the south side of the roof], a box gutter has not been installed, and instead a secret gutter installed.
It is plain, on the basis of Mr Machell's evidence, that these divergences from the design drawings have contributed significantly to the present unsatisfactory state of the roof.
Turning to Mr Smith's assertions that the roof does not leak, we make two broad observations.
Firstly, Mr Smith's assertion makes no allowance for the evidence of, amongst others, Mr Thorpe, to the effect that any failure of the roof mechanism to ensure proper drainage of water has at least the potential to contribute to the ingress of water evidenced throughout the building. Thus, Mr Thorpe said (at T:34, 17.5.12):
I also note that in the report that Mrs Harwood has received from a roofing contractor and also made in our report that the roof flashings on the roof were inadequate and they were overflowing. So any water … would overflow from those roof flashings and box gutters on the external lining of the wall and carry on from one floor to the next if the junction between the floors and the walls was not properly sealed or if the seal has been broken for some reason or another.
Mr Thorpe also commented (at T:38, 17.5.12):
My belief is that most of the water problems that you are having are coming from the inadequate flashing around the roof, the junction of the external wall panels and the roof over the building which should you know, should be properly flashed around the surrounds[,] and where box gutters occur, those box gutters need to be of an adequate size to take the amount of water that comes down at any one time in considering that you are likely to experience quite heavy showers at times, so the gutters should be quite large to cope with that amount of water and I believe from what I've seen and from what you're going to get in a subsequent witness from the subsequent witnesses, those box gutters are not adequate. They are not coping with the amount of water that comes down at any one time.
Our second observation is that, provided that we are satisfied, on the evidence, that a regulated building service has not been carried out in a proper and proficient manner, or is faulty or unsatisfactory in circumstances attributable to the builder joined in a proceeding, we may, consistent with s 38(1) of the BS(CRA) Act, make a building remedy order.
By reason of the failures in the construction methods and outcomes identified in Mr Machell's report, which have not been the subject of any countervailing evidence or, indeed, any real challenge by Mr Smith, we have reached the state of satisfaction of which the section speaks.
Assessment of remedial cost
Mr Machell made recommendations for remedial action in respect of each aspect of the unsatisfactory features of the roof identified by him. They include specific recommendations for individual box gutters, replacement of the inappropriate secret gutter on the south side with a box gutter, reinstallation of the improperly installed vent pipes and exhaust pipes, replacement of the airconditioning mount, and attention to the required turndown and cutbacks of roof sheeting. Mr Machell provided alternative scopes of work for the box gutter to replace the secret gutter, the cheaper of which involved installing a flatpan PGI sheet over the existing roof sheeting, which Mr Machell accepted as an acceptable remediation method.
Mr Taylor provided his assessment of each element of the remediation suggested by Mr Machell. Including the cheaper option for the roof south side, the total comes to $50,968.50, inclusive of GST. Once again, Mr Taylor's is the only evidence going to the cost of the remediation which we have found to be necessary. We allow, in respect of this claim, $50,968.50.
Claim 4: water entry to subbasement garage
This claim is described, in the 'amended claims' document, in the following terms:
That water is entering the concrete suspended slab.
This claim is, once again, reported on in the Prescient Consulting report. Mr Machell inspected the basement, as a result of which he determined that water is penetrating the concrete suspended slab in six locations, evidenced by crystallisation of salts on the underside of the concrete slab. The six locations are marked in an architect's drawing of the ground floor plan appearing in the hearing book at page 363.
At each of the six locations, a moisture meter recorded relative readings of 85% 98%, compared with a background of 18%.
In each case, the external surface immediately above the locations of water seepage consists of tiled terrace, generally as part of a ground floor balcony, or other tiled surfaces (for example, a stairway).
As for recommended remediation, Mr Machell regarded the mechanics of the water ingress to be identical with that occurring in the west facing balconies. He therefore recommended the same course of remediation, being removal of the tiles in each of the locations above the leaks, installation of a waterproof membrane, and that the tiles be replaced.
In his written response document (hearing book at page 330), Mr Smith submits:
Minor leachings were noticed between the in situ basement concrete and the initial precast panels. This occasionally occurs when structures settle or when construction activity is carried out adjacent.
Mr Smith made no submission in relation to this claim in his closing submissions. Nor, consistent with his lack of action in relation to the other claims, did he provide any evidence to contradict or challenge the evidence in support of the claim. He did, in his crossexamination of witnesses, raise the fact that the basement garage is not fully enclosed, meaning that some water ingress during wet weather was unavoidable. Although this is no doubt true, this does not deflect from the only expert evidence produced to the effect that the concrete slab roof itself is subject to water penetration at six different points.
We are satisfied, on the basis of the expert evidence of Mr Machell, that the water ingress of which he speaks is occurring, and is attributable to a similar failure of the waterproof barrier as in the case of the balconies. We are also satisfied that this manifests a failure to carry out the regulated building service in a proper and proficient manner, and the building service being faulty and unsatisfactory.
Assessment of remedial cost
As noted above, Mr Taylor noted in his report that the rectification work required in respect of this item is included already by the works contemplated in his cost assessments of claims 2 and 3.
Preliminary costs
Mr Taylor assesses that, in addition to the costing supplied in respect of the specific claim items, significant preliminary costs will be incurred in connection with the whole of the remediation works. These costs are:
•Scaffolding to three faces of the building.
•Material hoist.
•Rubbish chute and waste bins.
•Crane hire for lifting roof materials.
•Coordination of trades and tenants by owner's representative.
Mr Taylor estimates a cost for preliminary items of $93,290, exclusive of GST, or $102,619, inclusive of GST, for preliminary items, on the assumption of all remedial works occurring together over a period of four weeks. Mr Smith has not objected to this estimate. We accept it and will include it in the final figure for remediation costs.
Witness fees, costs
At the end of the hearing, we indicated that the order we make will deal with any proposed application for costs. The order referred to below does this. It should be borne in mind that the general presumption in the Tribunal is that each party bears its own legal costs.
One category of costs which are regularly awarded is the reasonable costs associated with a party's expert witnesses. These will normally be allowed where the experts have substantially contributed to the vindication of that party's position.
In this case, one of the potential witnesses to whom a summons to witness was issued, Mr Kiddle of Strata Administration Services, has applied, under s 66(5) of the State Administrative Tribunal Act 2004 (WA), for a determination of fees and allowances payable for Mr Kiddle's attendance in answer to the summons. Given that the summons was issued at Mr Smith's request, and given the outcome that the summons was set aside, the only party against whom such a determination could conceivably be made is Mr Smith. He is given, by the order we make, the opportunity to respond to Mr Kiddle's application.
Conclusion and order
By reason of our findings in relation to each of the four surviving claims, we have determined that the following amounts are payable by Mr Smith to Sapphire Apartments (all amounts being GST-inclusive):
Claim 1$76,307.40
Claim 2$145,747.80
Claim 3$50,968.50
Preliminary costs $102,619.00
Total $375,642.70
The Tribunal shall accordingly issue the following order:
1.On or before 30 November 2012, the respondent must pay the applicant by way of remedial costs $375,642.70.
2.The applicant shall have liberty to apply for its costs of the proceeding by filing with the Tribunal and giving to the respondent, on or before 9 November 2012, the following documents:
(a)a schedule of the costs claimed in sufficient detail to enable the Tribunal to assess and fix any costs which might be awarded, together with any supporting documents upon which the applicant wishes to rely; and
(b)written submissions addressing the basis upon which it is contended costs should be awarded and the quantum of costs claimed.
3.If the applicant makes an application for costs, the respondent may, on or before 16 November 2012, file with the Tribunal and give to the applicant written submissions opposing the application.
4.The respondent may, on or before 16 November 2012, file with the Tribunal and give to Mr Warren Kiddle of Strata Administration Services written submissions opposing his application under s 66(5) of the State Administrative Tribunal Act 2004 (WA) for fees and allowances.
5.Subject to further order, if the applicant makes an application for costs, the Tribunal shall, after the respondent files his written submissions or 16 November 2012, whichever is the earlier, determine the application on the documents, and if costs are awarded, shall fix the amount of such costs.
6.The Tribunal shall, at the same time, or after 9 November 2012 if the applicant does not make an application for costs, determine Mr Kiddle's application.
I certify that this and the preceding [95] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR T CAREY, MEMBER
3