PETSOS and JUDD - [2025] WASAT 26

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   PETSOS and JUDD [2025] WASAT 26
MEMBER:   MR M BENTER, MEMBER
MR R WOODFORDE, SESSIONAL MEMBER

HEARD:   23, 24 AND 25 OCTOBER 2024
DELIVERED          :   20 MARCH 2025
FILE NO/S:   CC 1345 of 2021
BETWEEN:   KATHERINE PETSOS
First Applicant
PAUL PETSOS
Second Applicant
AND
HAROLD JUDD
Respondent

FILE NO/S: CC 14 of 2023
BETWEEN: HAROLD JUDD
Applicant
AND
KATHERINE PETSOS
First Respondent
PAUL PETSOS
Second Respondent

FILE NO/S: CC 15 of 2023
BETWEEN: KATHERINE PETSOS
First Applicant
PAUL PETSOS
Second Applicant
AND
HAROLD JUDD
Respondent

FILE NO/S: CC 372 of 2023
BETWEEN: KATHERINE PETSOS
First Applicant
PAUL PETSOS
Second Applicant
AND
HAROLD JUDD
Respondent

Catchwords:

Building dispute - HBWC complaint items - Building service complaint items - Multiple related proceedings - Whether home owners repudiated the building contract - Whether termination by builder valid - Whether builder repudiated the building contract - Whether termination by home owners valid - Compensation - Turns on its own facts

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(1), s 5(2), s 36, s 38(1), s 41, s 43
Home Building Contracts Act 1991 (WA), s 17, Pt 2

Result:

Applications in CC 1345 of 2021, CC 15 of 2023 and CC 372 of 2023 partly successful

Application in CC 14 of 2023 dismissed

Category: B

Representation:

CC 1345 of 2021

Counsel:

First Applicant	:	Mr W Vogt and Mr S Mintz
Second Applicant	:	Mr W Vogt and Mr S Mintz
Respondent	:	Mr P Monaco

Solicitors:

First Applicant	:	Vogt Legal
Second Applicant	:	Vogt Legal
Respondent	:	GV Lawyers

CC 14 of 2023

Counsel:

Applicant	:	Mr P Monaco
First Respondent	:	Mr W Vogt and Mr S Mintz
Second Respondent	:	Mr W Vogt and Mr S Mintz

Solicitors:

Applicant	:	GV Lawyers
First Respondent	:	Vogt Legal
Second Respondent	:	Vogt Legal

CC 15 of 2023

Counsel:

First Applicant	:	Mr W Vogt and Mr S Mintz
Second Applicant	:	Mr W Vogt and Mr S Mintz
Respondent	:	Mr P Monaco

Solicitors:

First Applicant	:	Vogt Legal
Second Applicant	:	Vogt Legal
Respondent	:	GV Lawyers

CC 372 of 2023

Counsel:

First Applicant	:	Mr W Vogt and Mr S Mintz
Second Applicant	:	Mr W Vogt and Mr S Mintz
Respondent	:	Mr P Monaco

Solicitors:

First Applicant	:	Vogt Legal
Second Applicant	:	Vogt Legal
Respondent	:	GV Lawyers

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

Gemmill Homes Pty Ltd v Sanders [2018] WASC 179
Griffin and SSB Pty Ltd [2024] WASAT 137
Lampman and Afra Constructions Pty Ltd [2014] WASAT 27
Laurinda Pty Ltd & Ors v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623
Louden and Changeovers Pty Ltd (ABN 18 146 623 190) [2021] WASAT 164
Owners of Island Apartments Strata Plan 52597 and Pindan Pty Ltd [No 2] [2018] WASAT 2
Soliman and Beyond Builders Pty Ltd [2024] WASAT 57
Stojanovski & Anor v Australian Dream Homes Pty Ltd [2015] VSC 404

REASONS FOR DECISION OF THE TRIBUNAL:

Background

These reasons address four separate, but related proceedings between the same parties, namely:
(a)Mrs Katherine Petsos and Mr Paul Petsos, the owners of a property in Marangaroo, Western Australia; and
(b)Mr Harold Wayne Judd, who more commonly goes by the name Wayne, the builder contracted by Mr and Mrs Petsos to renovate an existing house at their Marangaroo property.
The four proceedings were ordered by the Tribunal to remain separate proceedings but be heard together, with the evidence in each proceeding to be evidence in the others.[1] The four proceedings, referred to collectively throughout these reasons as 'the related proceedings', are:
(a)CC 1345 of 2021, in which Mr and Mrs Petsos are the applicants and Mr Judd is the respondent;
(b)CC 14 of 2023, in which Mr Judd is the applicant and Mr and Mrs Petsos are the respondents;
(c)CC 15 of 2023, in which Mr and Mrs Petsos are the applicants and Mr Judd is the respondent; and
(d)CC 372 of 2023, in which Mr and Mrs Petsos are the applicants and Mr Judd is the respondent.
[1] Orders made by the Tribunal in each proceeding on 7 December 2023.
The parties regularly adopted a practice, across the related proceedings, of identifying Mr and Mrs Petsos as the applicants and Mr Judd as the respondent. However, this is not correct in CC 14 of 2023, where the parties are reversed. In an effort to avoid confusion, in these reasons Mr and Mrs Petsos are referred to either by their surnames or as 'the home owners', while Mr Judd is referred to either by his surname or as 'the builder'.
In accordance with orders made by the Tribunal, the home owners lodged with the Tribunal a combined hearing book containing the documents to be relied upon by the parties at the final hearing, with that book being marked as Exhibit 1 at the hearing.
Each of the related proceedings commenced with a complaint having been made to the Building Commissioner, with each of the complaints in due course having been referred to the Tribunal.
The relevant complaints in the related proceedings, which include a variety of both 'HBWC complaint' items and 'building service complaint' items, as those terms are defined in s 3 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (the BSCRA Act), are as follows.

CC 1345 of 2021 Complaint Items

On 3 July 2021, the home owners lodged a complaint with the Building Commissioner which included the following HBWC complaint items:[2]
[2] A copy of the complaint form appears in Exhibit 1 at pages 266 - 271. As this proceeding commenced prior to the current practice of the Building Commissioner sending a typed list of complaint items to the Tribunal, the list has been replicated in these reasons, as accurately as practicable, from the handwritten list of complaint items in the original complaint form.

No

Item/Location/ Clause

Description

1

Clause 15(b)

Builder non complies with clause. Therefore his termination is not valid

2

Clause 16(a)

Builder uses clause to terminate despite his reason having already been settled with Owners. Builders statement, 'Cancelling materials…' is NOT TRUE

3

Clause 16(b)

(a) Builders reason to terminate is NOT TRUE. Therefore he can not use clause 16(b)

(b) Some examples in past where Builder made statements NOT TRUE

4

Clause 16(b)

Builders reason to terminate is not valid. NO quotes interfered with work or progress to build

5

Home Building Act 1991, Part 2, Section 5

(a) Builder does not provide owners with a copy of complete signed contract

(b) Builder does not provide even upon owners written request

6

Clause 11(d) Provisional Sums

Builder non complies to clause

7

Clause 12 Variations

Builder non complies with:

(a) Cl. 12(b)(ii), (c)(ii) and (d)(ii)

- Shouldn't be requesting owners additionally pay costs that don't meet Clause 12(b)

- Shouldn't have issued Owners Variation dated 22/12/20

(b) Clause 12(a)

(c) Clause 12(e)(ii)

- for provisional sum savings - Demolition

On about 17 August 2021, the relevant delegate of the Building Commissioner determined that the complaint items would all be referred to the Tribunal.[3]

CC 14 of 2023 Complaint Item

[3] See the Investigation Report of the Authorised Investigator at Exhibit 1, pages 318 - 319.

On 3 October 2022, the builder lodged a complaint with the Building Commissioner which included the following single HBWC complaint item:[4]
[4] A copy of the complaint form appears in Exhibit 1 at pages 416 - 427.

Item Number

Location (e.g. garage) and/or contract issue

Description of Complaint Item

1

HBCA Cl 16(a)(b)(d), Cl 7(f) & Cl 19(d)(i)

Repudiation of contract. See 'relevant facts' attached.

On 10 January 2023, the relevant delegate of the Building Commissioner determined that the complaint item would be referred to the Tribunal.[5]

CC 15 of 2023 Complaint Items

[5] See the Investigation Report of the Authorised Investigator at Exhibit 1, pages 443 - 444, noting that the date on the second page is an obvious error and should be 10 January 2023.

On about 25 November 2022, the home owners lodged a complaint with the Building Commissioner which included the following HBWC complaint items:[6]
[6] A copy of the complaint form appears in Exhibit 1 at pages 434 - 439.

Item Number

Location (e.g. garage) and/or contract issue

Description of Complaint Item

1

The Builder repudiated the Building Contract for reasons set out in the Breach Notice and Termination Notice annexed with this Building Complaint Form/

2

Loss of $25,000 State Home Builder Grant as requirements needed to obtain the Grant money were not met due to the Builder's repudiation of the Building Contract.

3

Builder failed to provide the Owners with credit in respect of completed provisional sum items, which, were completed for cost lesser than the sums specified in the Building Contract Addenda and Specifications, contrary to Clause 7(b) and 11(d) of the Building Contract.

On 10 January 2023, the relevant delegate of the Building Commissioner determined that the complaint items would all be referred to the Tribunal.[7]

CC 372 of 2023 Complaint Items

[7] See the Investigation Report of the Authorised Investigator at Exhibit 1, pages 445 - 446, noting again that the date on the second page is an obvious error and should be 10 January 2023.

On 10 March 2023, the home owners lodged a complaint with the Building Commissioner which included 53 numbered complaint items.[8] The original complaint form indicates that the type of complaint being made by the home owners in respect of these items was a HBWC complaint.
[8] A copy of the complaint form appears in Exhibit 1 at pages 485 - 504.
However, on a review of the complaint, all items, perhaps with the exception of item 51, in respect of 'incomplete progress stage - practical completion', relate to the specified part of the building works being missing, incomplete or otherwise defective.
On that basis, the items in this complaint, again with the possible exception of item 51, are properly identified as being building service complaints rather than HBWC complaints. In any event, the application lodged by the Building Commissioner at the commencement of this proceeding states that the matter relates to a building service complaint.
The full list of complaint items appears in the copy of the complaint form included in Exhibit 1. However, a review of the complaint items establishes that the significant majority relate to what are said to be missing or incomplete items or works.

Evidence at the final hearing

The following parties gave evidence at the hearing:
(a)Mrs Katherine Petsos;
(b)Mr Paul Petsos; and
(c)Mr Harold Judd.
Concurrent evidence was given by the following expert witnesses at the hearing, all of whom were called by the home owners, having prepared their respective expert reports at the home owners' request:
(a)Mr Brendon Bartlett;
(b)Mr Chris Jones; and

(c)Mr Rick Martelli.

In addition to the combined hearing book (Exhibit 1), the following documents were marked as Exhibits during the final hearing:
(a)Exhibit 2 - Witness Statement of Mrs Petsos dated 20 August 2024;
(b)Exhibit 3 - Supplementary Witness Statement of Mrs Petsos dated 10 October 2024;
(c)Exhibit 4 - Witness Statement of Mr Petsos dated 20 August 2024;
(d)Exhibit 5 - National Storage ledger document dated 22 October 2024; and
(e)Exhibit 6 - Witness Statement of Mr Judd dated 20 August 2024.
In the case of each of the parties themselves, their witness statements were taken as their evidence-in-chief at the final hearing, with any minor corrections to those statements being addressed in their evidence at the final hearing.
In accordance with the orders made at the close of the final hearing, the following written submissions were filed by the parties in each of the related proceedings:
(a)the builder's closing submissions dated 22 November 2024;
(b)the home owners' closing submissions dated 13 December 2024; and
(c)the builder's responsive submissions dated 20 December 2024.

Statement of Agreed Facts

In the course of the proceedings, orders were made by the Tribunal for the parties to confer and lodge any statement of agreed facts and agreed chronology with the Tribunal.[9]
[9] The Tribunal first made orders in this regard on 20 June 2024 in each of the related proceedings, with the time limit extended in orders made on 7 August 2024.
On 22 October 2024, the parties lodged their Statement of Agreed Facts and Chronology.[10] However, in the course of the hearing, it arose that the matter set out at numbered paragraph 1 in respect of the phone call between Mr Petsos and Mr Judd on 3 May 2021[11] was not in fact agreed and the parties instead agreed that this numbered paragraph should be struck out. Save for that one deletion, counsel for the parties agreed that the document can otherwise be taken to be agreed.
[10] Lodged in each of the related proceedings and being Folio 42 on the Tribunal's file in relation to CC 372 of 2023.
[11] Being the last sentence on page 5 of the Statement of Agreed Facts and Chronology.
The Tribunal was assisted at the final hearing by the Statement of Agreed Facts and Chronology.

Nature of the Building Contract and the circumstances of it coming to an end

Based upon the documentary evidence in Exhibit 1, the Tribunal's records in respect of the related proceedings and the Statement of Agreed Facts, it is uncontroversial, and the Tribunal finds, that the following key events took place between October 2020 and July 2022.
On 23 October 2020, the parties entered into a HBCA Lump Sum Building Contract (the Building Contract)[12] for the renovation of the existing residential dwelling (the Works) on the home owners' property in Marangaroo. In the days from 23 October 2020 to 1 November 2020, the following additional documents related to the Building Contract were signed by the parties:
(a)Addenda to the Specification dated 23 October 2020;[13]

(b)HIA Specification for Brick or Framed Construction dated 23 October 2020;[14]
(c)document titled 'Provisional Sum and Prime Cost ADDENDA TO SPECIFICATION' dated 23 October 2020;[15]
(d)second document titled 'Provisional Sum and Prime Cost ADDENDA TO SPECIFICATION' dated 1 November 2020;[16] and
(e)document titled 'General Specification' dated 1 November 2020.[17]
[12] Exhibit 1, pages 19 - 30.
[13] Exhibit 1, pages 31 - 45.
[14] Exhibit 1, pages 46 - 53.
[15] Exhibit 1, pages 54 - 56.
[16] Exhibit 1, page 58.
[17] Exhibit 1, pages 60 - 64.

The price for the Works in accordance with the Building Contract was $196,400 (including GST), which included a number of provisional sums.
On 19 November 2020, a Building Permit for the Works was issued by the City of Wanneroo.[18]
[18] Exhibit 1, pages 109 - 110.
Around six months later, on 27 May 2021, the builder sent to the home owners an email and attached letter dated 25 May 2021, by which the builder purported to terminate the Building Contract.[19]
[19] Exhibit 1, pages 244 - 245.
At this point in time, a significant portion of the Works had yet to be completed by the builder.
On about 7 June 2021, the home owners sent a lengthy written response to the builder's purported termination notice in which the home owners, in effect, rejected the purported termination of the Building Contract and set out a number of contentions by the home owners as to the builder's failure to comply with requirements of the Building Contract.[20] The letter also enclosed a copy of a Notice of proposed complaint pursuant to the BSCRA Act.[21]
[20] Exhibit 1, pp 247-253.
[21] Exhibit 1, pp 254-255.
As noted above, on 3 July 2021 the home owners lodged a complaint with the Building Commissioner, which was ultimately referred to the Tribunal and became the subject of proceeding CC 1345 of 2021, being the first of the related proceedings.
During July and August 2021, the parties exchanged a number of emails in relation to the status of the Works, the builder's purported termination of the Building Contract and the first complaint to the Building Commissioner.
The matter of CC 1345 of 2021 was listed for a mediation at the Tribunal on 14 October 2021. However, the mediation was required to be vacated on short notice and was on 14 October 2021 re-listed to take place on 3 December 2021.
On 14 October 2021, the builder emailed to the home owners a copy of a Form BA8 Notice of cessation which appears to have been completed by the builder on 8 October 2021.[22]
[22] Exhibit 1, pp 339-340.
On 3 December 2021, a mediation took place at the Tribunal in CC 1345 of 2021. The Tribunal record shows that further mediation was undertaken in the matter on 29 March 2022 and 12 May 2022. However, the matter did not resolve at mediation and on 12 May 2022 the mediation was terminated by the Tribunal Members conducting the process.
On about 16 June 2022, the home owners issued to the builder a breach notice in respect of the Building Contract.[23] By way of this notice, the home owners required the builder, in effect, to withdraw his purported termination of the Building Contract and return to site to carry out the balance of the Works.
[23] Exhibit 1, pages 350 - 366.
On about 19 July 2022, the home owners issued to the builder a termination notice in respect of the Building Contract.[24]
[24] Exhibit 1, pages 399 - 407.

Legislative framework

As noted above, the complaints the subject of the related proceedings include both 'HBWC complaint' items and 'building service complaint' items, as those terms are defined in s 3 of the BSCRA Act.
Pursuant to s 5(2) of the BSCRA Act, an owner or builder under a home building work contract may make a complaint to the Commissioner about a matter referred to in s 17 of the Home Building Contracts Act 1991 (WA) (the HBC Act), with such a complaint being defined as a 'HBWC complaint' in s 3 of the BSCRA Act.
Section 17 of HBC Act relevantly provides that an owner may make a HBWC complaint if the owner claims that there has been a breach of the home building work contract, not being a breach in respect of which a building remedy order may be made, or a breach of a provision of Pt 2 of the HBC Act.
The HBC Act at s 3 defines a 'home building work contract' to be 'a contract between a builder and an owner for the performance by the builder of home building work'. The definition otherwise excludes certain contracts, none of which exclusions are relevant or applicable to this matter.
Noting that the definition of 'home building work' in s 3 of the HBC Act includes the whole or part of the work of re-constructing an existing dwelling or altering, improving or repairing a dwelling, there is no doubt that the Building Contract in this matter constitutes a 'home building work contract'.

Where a HBWC complaint is referred to the Tribunal, s 43 of the BSCRA Act provides that the Tribunal may:
(a)if satisfied that the order is justified, make a HBWC remedy order; or
(b)otherwise, decline to make the order.
In turn, s 41 of the BSCRA Act sets out the various matters that may be the subject of a HBWC remedy order. Relevantly, these include:
(a)an order requiring any specified work to be done;

(b)an order that a person pay a specified amount payable under the contract;
(c)an order declaring that a specified amount is not payable to a person under the contract and, if already paid, an order that the builder or owner repay that amount;

(d)an order that a person pay specified compensation for loss or damage caused by any breach of the contract or of a provision of Pt 2 of the HBC Act; and/or

(e)an order declaring that a specified amount of money claimed or money claimed for specific work is not payable by a person.

Pursuant to s 5(1) of the BSCRA Act, 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, with such a complaint being a 'building service complaint' pursuant to s 3 of that Act.
Relevantly, the definition of 'regulated building service' in s 3 of the BSCRA Act includes home building work that is carried out under a home building work contract. For the reasons set out above, the Works the subject of the Building Contract in this matter constitute a 'regulated building service'.
Where a building service complaint is referred to the Tribunal, s 38(1) of BSCRA Act provides that 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.
Section 36 of the BSCRA Act provides relevantly:
(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; and
(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.
Consistent with previous decisions by the Tribunal,[25] the questions for determination in respect of a building service complaint are:

(1)Did the respondent carry out a regulated building service?
(2)If the answer to (1) is in the affirmative, was the building work, the subject of each of the complaint items, faulty or unsatisfactory?
(3)If the answer to (1) and (2) is in the affirmative, what is the appropriate form of the building remedy order (if any)?
[25] See for example Louden and Changeovers Pty Ltd (ABN 18 146 623 190) [2021] WASAT 164 at [5].

As to the discretion of the Tribunal to make a building remedy order under s 38 of the BSCRA Act, Smith AJ (as her Honour then was) stated in Gemmill Homes Pty Ltd v Sanders [2018] WASC 179 at [133] and [134]:

133It must be borne in mind that the statutory limits on the exercise of the discretion to make a building remedy order are only those set out in s 38. The repository of the power conferred to make an order (the Tribunal) must form an opinion 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.
134If the requisite opinion is formed, the Tribunal is required to make a building remedy order. It then has to exercise the discretion conferred in s 36(1) to make a particular order in the form of s 36(1)(a), (b) or (c). Thus, no 'right' or requirement on a party to a complaint to elect arises.

In Owners of Island Apartments Strata Plan 52597 and Pindan Pty Ltd [No 2] [2018] WASAT 2 (Pindan), the Tribunal set out at [27] to [35] the principles relevant to determining whether work the subject of a building service complaint has not been carried out in a proper and proficient manner, or is faulty or unsatisfactory.[26]
[26] With the principles cited with approval by the Tribunal recently in Griffin and SSB Pty Ltd [2024] WASAT 137.

The primary issue – which party's termination was effective?

There is no doubt that the Building Contract has ultimately come to an end.
However, with both parties having purported to terminate the Building Contract, the core of the dispute encompassed by the related proceedings are the questions of:
(a)which party was entitled to terminate the Building Contract;
(b)was that party's termination effective; and
(c)if so, what are the consequences of that termination?
In the event the builder was properly entitled to terminate, and indeed terminated the contract in an effective manner, the Building Contract came to an end at that point and the question for the Tribunal is what orders ought to be made arising from that termination.
In the event the builder was not entitled to terminate, or his purported termination was otherwise not effective, the question for the Tribunal is whether the home owners' subsequent notice of termination was valid and effective and, if so, what orders ought to be made arising from that termination.

The builder's purported termination of the Building Contract

As noted above, the first termination notice issued in respect of the Building Contract was that sent by the builder to the home owners by email on 27 May 2021, with the email explaining that the notice itself had also been sent by post on 'Tuesday afternoon', which is taken to be reference to 25 May 2021, being the date of the notice.[27]
[27] Exhibit 1, pages 244 - 245.
The relevant text of the termination notice itself is as follows:
I wish to advise you that as of this day 25^th of May 2021, I am invoking my right under our HBCA written contract, Clause 16 (a), 16 (b) and 16 (d), and any work that you have personally engaged and commissioned from the 14^th May 2021 without my consent, I will not take responsibility for.
Clause 16 HBCA Lump Sum Contract States:
The Builder may, in addition to any other rights under this Contract, terminate this Contract in any one of the following events:
•Cl 16 (a) Substantial damage to or interference with the works or delays to the Works or access thereto beyond ....
•Cl 16 (b) Any substantial breach of the Contract by the Owner.
•Cl 16 (d) Any deliberate and substantial prevention or interference with the Works or progress thereof caused by the Owner.
The above reasons for Termination of Contract are based on your interference as follows:
•Cancelling of materials and services delivery, by contacting my supplier without my consent.
•Engaging and commissioning subcontractors on site without my written or verbal consent.
•Pursuing quotations from contractors without my knowledge or consent.
•Please be advised that you may not legally progress the works without my written consent.
Suffice to say that the termination notice, in light of its contents set out above, includes very little helpful information as to the reasons for termination, such as the relevant circumstances which are said to constitute the termination event or events and the link between those circumstances and the relevant contract provisions.
While the builder maintained his argument at the final hearing that his termination of the Building Contract was valid, his written closing submissions record his position that he does not seek any damages, but does seek orders to the effect that:
(a)the Building Contract was lawfully terminated by the builder;
(b)the claims by the home owners be dismissed; and
(c)the home owners pay the builder's legal costs of the related proceedings.
For the reasons that follow, the Tribunal finds that the builder had no proper basis to immediately terminate the Building Contract as he purported to do and that his issue of the termination notice was unwarranted and precipitous, and thereby invalid. It follows that the builder is not entitled to any remedy arising from his invalid notice of termination.

Alleged breach – postponement of windows delivery

A significant portion of the parties' evidence at the final hearing concerned the events in the days from 1 to 5 May 2021 (inclusive) in relation to the postponement of the previously scheduled delivery of the windows for the Works, being supplied by Jason Windows.
From the evidence of the builder, it was the postponement of the Jason Windows delivery that constituted the instance of 'cancelling of materials and services delivery, by contacting my supplier without my consent' referred to in the termination notice.
The Tribunal notes at the outset that there is no evidence to suggest that the Jason Windows order was cancelled, rather than being postponed to take place at a later time.
As recorded in the Statement of Agreed Facts, it is agreed by the parties that the scheduled Jason Windows delivery was postponed by the home owners and that:
(a)at 5.03 pm on Saturday 1 May 2021, Ms Petsos sent to the builder an email that stated, relevantly, 'we request a hold be put on the installation of the glass. We do not want to risk having any damage done to either the glass or window frames. We would not be able to replace or fix damage from work done by plasterers and ceiling fixers, there is no room in our budget. We will contact Jason Windows on Monday morning to make sure they do not come out on Wednesday.'[28];
(b)Ms Petsos did then contact Jason Windows on the morning of Monday 3 May 2021 to request that the scheduled delivery be postponed; and
(c)at 9.48 am on 3 May 2021, Christine Wilson of Jason Windows emailed Ms Petsos to confirm that the windows delivery had been put on hold until Ms Petsos advised.
[28] Email at Exhibit 1, page 174.
It is the evidence of Mr Petsos that in a telephone conversation with the builder at around 11 am on 3 May 2021, he advised the builder that the windows delivery had been put on hold and that, in response, the builder told him, in effect, that the home owners had breached the Building Contract by ringing Jason Windows and that they needed to pay the builder's lock-up claim.[29]
[29] Exhibit 4 at [7] to [10], ts 72 - 74.
The builder's position at the hearing was that he was not told by the home owners, at any time prior to 5 May 2021 that they had already contacted Jason Windows and requested that the delivery be postponed. In his witness statement, Mr Judd refers to a conversation with Mr Petsos on 3 May 2021 and to emails that that he sent following Ms Petsos' email of 1 May 2021 indicating the home owners' intent to postpone the windows delivery. In these parts of his statement, Mr Judd does not state that he was never told by either of the home owners that Mrs Petsos had on the morning of 3 May 2021 phoned Jason Windows to request the postponement.
At para 29 of his statement, Mr Judd states:
Options were offered, but there was no definite response, until after Mrs Petsos had contacted my window supplier early Monday morning on the 3rd of May and cancelled the scheduled Wednesday 5th of May glazing. She had claimed to be representing my business and gave Jason authority to cancel the window glazing.
The Tribunal observes that none of the multiple emails from the builder in early May 2021 addresses what would be a quite serious allegation of Mrs Petsos claiming to represent the builder's business in her telephone call to Jason Windows.
Instead, the builder in cross-examination accepted that, to the best of his knowledge, the first reference to him being informed by a staff member of Jason Windows that Mrs Petsos had called them claiming to be a representative of his business is in his complaint lodged with the Building Commissioner on 4 October 2022.[30]
[30] ts 109, with a copy of the complaint and supporting material at Exhibit 1 pages 416 - 427.
Specifically, the supporting document to that complaint includes a statement by Mr Judd to the effect that he had been advised on 5 May 2021 by a staff member of Jason Windows that 'a woman had called Jason Windows on Monday morning, and claiming to be the representative of my building business, requested that the glazing installation be put on hold'.[31]
[31] Exhibit 1, page 426.
The Tribunal also notes that, in Mr Judd's document titled 'ATTACHMENT A PETSOS Allegation 1' emailed by Mr Judd on 3 August 2021 to the relevant complaints officer at Building & Energy in response to the first complaint made by the home owners to the Building Commissioner, there is no reference to the serious allegation that Mrs Petsos, in phoning Jason Windows, claimed to be representative of his building business.[32]
[32] Exhibit 1, email and letter at pages 288 - 291 and Attachment at pages 292 - 298.
The Tribunal finds that, while Mrs Petsos clearly phoned Jason Windows on the morning of 3 May 2021 to postpone the Jason Windows delivery, there is no sufficient evidence to support the allegation by Mr Judd that, in doing so, Mrs Petsos claimed to be a representative of his building business. No evidence was called from any representative of Jason Windows to support this allegation.
The Tribunal also finds, on the balance of probabilities, that Mr Petsos told Mr Judd on the morning of Monday 3 May 2021 that Mrs Petsos had that morning phoned Jason Windows and requested that the delivery of the windows be put on hold. The clear evidence of Mr Petsos in this regard is to be preferred and, in the view of the Tribunal, is consistent with the email correspondence that then followed.
The Tribunal observes that, in fixed price contracts for building work, it is a matter for the builder to secure the necessary materials and trades and schedule those in the manner it sees fit. It is generally never acceptable for a client to contact their builder's supplier to postpone the delivery of materials that had been ordered by the relevant builder as part of their scope of works, and certainly not without the express agreement of the relevant builder.
In contacting Jason Windows to request the postponement of the windows delivery, without any agreement by the builder for them to do so, the Tribunal finds that, at the point of doing so, the home owners committed a breach of the Building Contract.
However, the Tribunal finds that the issue was ultimately resolved on an agreed basis shortly after it had first arisen and is not a breach in respect of which the builder was able to subsequently seek to terminate the Building Contract.
In his email to the home owners on 3 May 2021, the builder set out the following in respect of the options he proposed to the home owners:[33]
If the glazing does not take place on Wednesday as programmed, and or Lock up payment not initiated, then I will exercise my rights under our contract, as I am not prepared to continue on with the project under the circumstance you have placed us both in. This is not what I would want to do, nor have happen to you, but it's your call from this point onward.
I am hoping that you will rethink and see reason on the matter. If you want to, Paul can ply up the openings and initiate the progress payment, if you still do not want the windows glazed. I will need to see payment in my account next Monday 10th May by COB.
[33] Exhibit 1, page 184.
The basis for the requirement that the money reach the builder's account by 10 May 2021 is not addressed in the email and, on the face of it, is not consistent with the terms of the Building Contract or the proper process for issuing any progress payment under a home building work contract. When asked by the Tribunal as to where the 10 May 2021 date came from, the builder's evidence was 'that was a bit rash on my part'.[34] There was otherwise no evidence as to any reasonable explanation for the nature of the payment demand by the builder.
[34] ts 236.
In any event, the clear terms of the builder's email is that he was offering the home owners the option of either:
(a)having the windows installed as originally scheduled on Wednesday 5 May 2021; or

(b)in the event the home owners maintained that they did not want the windows installed, plying up the openings and initiating the lock-up progress payment.

On 4 May 2021, the builder sent an email to the home owners that attached a document with the name 'PETSOS PROJECT'.[35] The attached document includes the following:
You do have options.
1.You can agree to the glazing to be installed as it always is at this stage of a building project.
2.If you still do not agree to glazing installation, you can ply up the openings at your own cost, or I can subcontract that additional work out for you after you sign a variation to contract.
3.If you do not agree to any of the above options, then as I stated yesterday, you are in serious breach of our contract, and therefore have rights that I can exercise. Of course, this is not pleasant for either party under these circumstances.
[35] Exhibit 1, with the email at page 180 and attachment at page 181.
While numbered paragraph 3 above is not an option for the home owners, items 1 and 2 are, in effect, a repeat of the options previously offered for the home owners to either have the windows installed as originally scheduled or ply up the openings at their own cost. In either case, the clear evidence is that the desired outcome by the builder was to ensure that, whether the windows were installed or not, the home owners would authorise payment of the lock‑up progress payment.
In a further email from the builder to the home owners later on 4 May 2021, the above options were again repeated in the following terms:[36]
So my strong advice is for you to agree to the glazing installation programmed for tomorrow, or alternatively you arrange to ply up the windows, and to send me confirmation of Lock Up payment authorization by tomorrow afternoon.
[36] Exhibit 1, page 191.
At 7.49 am on 5 May 2021, the home owners sent an email to the builder with an attached letter.[37] In the letter, the home owners stated:
I refer to your email sent on 4/05/2021, at 12.13pm and the attachment, PETSOS PROJECT.docx.
In the document attached to email (PETSOS PROJECT.docx) you have provided us with 2 options in order to resolve the dispute regarding glass installation. We wish to advise you that we have chosen option 2, we will ply up ourselves. Thank you.
[37] Exhibit 1, with the email at page 193 and the attached letter at page 194.
At 9.11 am on 5 May 2021, the builder then emailed the home owners, attaching a letter with the same date which, in response to the home owners having chosen option 2, states: 'I appreciate your reasonable approach to this matter'.[38]
[38] Exhibit 1, pages 195 - 197.
The Tribunal finds that, at that point, the issue regarding the postponement of the windows delivery had been resolved on an agreed basis and is not a matter in respect of which any notice of termination could be founded.

Alleged breach – engagement with contractors

As noted above, the builder's purported notice of termination also referred to alleged actions of the home owners in 'engaging and commissioning subcontractors' and 'pursuing quotations from contractors' without the builder's consent. However, the notice fails to identify any relevant contractor or subcontractor, or to otherwise provide any necessary detail of the alleged circumstances.
At the hearing, the parties gave evidence in relation to communication between the home owners and a number of contractors that were proposed to be engaged, or being considered for engagement, to undertake either part of the work the subject of the Building Contract or other work as part of the renovation of the home owners' residence.

The Tribunal finds that the communication by the home owners with contractors arose from a combination of:
(a)genuine confusion on their part, arising from unclear aspects of the contract documents, as to which parts of the works were their responsibility to complete as opposed to being part of the scope of the builder, particularly with respect to the ceilings; and
(b)the builder having indicated a preparedness to consider utilising contractors identified and used previously by the home owners, including requesting from the home owners details of the one of the proposed contractor's quotation for the relevant work.
The Tribunal is not satisfied from the evidence that the builder has established, on the balance of probabilities, any breach of the contract by the home owners, and certainly not any matter that would constitute a substantial breach,[39] by reason of their communications with contractors based upon which the builder was entitled to terminate the contract at the time of issuing his purported notice of termination.
[39] Having regard to the consideration of the term 'substantial' in the context of a building contract in Stojanovski & Anor v Australian Dream Homes Pty Ltd [2015] VSC 404 at [45] to [49].
While the events in this regard were inadvisable, the Tribunal considers that the evidence establishes that all parties to the Building Contract had allowed an informal process of engagement to occur and the nature of the correspondence and contractual discussions between the parties at the relevant times may have led to confusion between them as to which tasks were within the scope of the Works under the Building Contract.
This is not to say that the approach of the home owners in making enquiries and engaging in discussions with potential contractors could not and should not have been more clearly discussed with the builder, or addressed in correspondence, prior to such actions being taken. However, even if the actions of the home owners in engaging in direct discussions with potential contractors could have constituted a breach of the Building Contract, the Tribunal considers that any such breach would have been unintentional on the part of the home owners, particularly in circumstances where the builder had yet to issue any formal remedial notice to cease any such contact.
The Tribunal is not satisfied that, by reason of any of their conduct prior to the issue of the builder's notice of termination, the home owners had repudiated the Building Contract by reason of evincing an intention to no longer be bound by the contract or to fulfil their obligations in a manner substantially inconsistent with the contract.[40]
[40] See Laurinda Pty Ltd & Ors v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623 at 647.

Other potential alleged breaches

In his letter dated 5 May 2021 to the home owners, the builder also requested that the home owners provide evidence of their capacity to pay the remaining balance of the Building Contract price.[41]
[41] Exhibit 1, page 197.
On 8 May 2021, Mrs Petsos sent an email to the builder, together with a number of attachments, including documents from their bank in relation to their capacity to pay the balance of the Building Contract price.[42]
[42] Exhibit 1, pages 210 - 216.
No issue was raised by the builder in his purported notice of termination as to the adequacy of the evidence of capacity to pay, nor is there any evidence that the builder requested further information at any time after the email from Mrs Petsos on 8 May 2021.
In his response to the home owners first complaint to the Building Commissioner, the builder stated in a document emailed to Building & Energy on 11 October 2021, in respect of the capacity to pay issue:[43]
On the 5th of May 2021, I requested Mr and Mrs Petsos by letter, to provide evidence of their ability to pay the remaining Contract stage payments. I stated HBCA Clause 7(f), as I was concerned by their behaviour. Mr and Mrs Petsos have not provided this evidence. (breach of Contract conditions)
[43] Exhibit 1, page 336.
However, The Tribunal finds that this statement was unwarranted in circumstances where the home owners, by way of Mrs Petsos' email of 8 May 2021, had provided evidence of their capacity to pay and no further issue had been raised in response by the builder.
The builder also referred to cl 7(f) of the Building Contract in his complaint lodged on 3 October 2022 with the Building Commissioner.
The Tribunal finds that the builder did not rely upon any breach of contract in relation to the requirement to provide evidence of capacity to pay the contract price as part of the basis for terminating the contract. Based upon the evidence before it, the Tribunal finds that there was no breach by the home owners in any event of the obligation to provide evidence of capacity to pay when requested to do so by the builder.
In his witness statement, the builder notes that the Building Contract includes, among other clauses, cl 19, although the relevant words of cl 19(e) are paraphrased in the witness statement.[44] The full terms of cl 19(e) are as follows:[45]
(e) If, without the prior written consent of the Builder, the Owner shall take possession of the Site, permit work outside this Contract or provide materials, goods or work to the Site before the Builder gives possession to the Owner under clause 19(d), the Owner commits a substantial breach of this Contract entitling the Builder to elect to either:
(i)Treat the Owner's actions as a repudiation of this Contract and accept that repudiation; or
(ii)Suspend the Building works and/or give the Owner a notice to remedy breach.
[44] Exhibit 6 at [3(e)].
[45] Exhibit 1, page 24.
As noted above, the builder's complaint to the Building Commissioner on 3 October 2022 also referred to cl 19(d)(i) of the Building Contract.
The Tribunal finds that the builder's purported notice of termination made no reference to either cl 19(d) of cl 19(e), nor did it contain any details sufficient to identify any alleged breach of those clauses in any event. The Tribunal finds that the builder did not rely upon any breach of contract in this regard as part of the basis for terminating the contract. While the builder's witness statement includes an allegation that the home owners by about 13 May 2021 'had now fully taken possession of the site',[46] the Tribunal finds that there is no evidence to support any contention that the owners had taken possession of the site. Rather, the Tribunal finds that, at all times up to the issue by the builder of his purported notice of termination, the home owners were seeking to have the builder complete the Works in accordance with the Building Contract and continued to do so until the issue of their own notice of termination.

Failure by builder to issue any breach notice

[46] Exhibit 6 at [33].

While the Tribunal is not satisfied from the evidence that the actions of the home owners constituted any breach of the Building Contract, it finds that, even if any of the matters contended by the builder could arguably have constituted any breach of the Building Contract, they are matters that could never have entitled the builder to terminate the contract without complying with the requirement to first issue a notice requiring remediation.
Clause 15(b) of the Building Contract states:[47]
Except as provided herein neither party shall be at liberty to terminate this Contract or exercise or enforce any other right or remedy in relation hereto whether pursuant to this Contract or at law or in, equity without first giving to the other party a notice in writing specifying the matter complained of and requesting that other party to remedy it within TEN (10) working days of the service of such notice. If such notice is given and the other party fails within such period to remedy the matter complained of then the party giving such notice may terminate this Contract immediately by giving a separate notice to that effect.
[47] Exhibit 1, p 23.
While cl 15(d) sets out a number of circumstances in which the provisions of cl 15(b) do not apply, those circumstances are not relevant to the related proceedings.
The Tribunal finds that the actions of the home owners, to the extent the builder considered those actions to be in breach of the terms of the Building Contract, were matters that were required to first be set out in a notice requiring remediation. Irrespective of any finding as to whether the home owners had in fact breached the contract, the Tribunal is satisfied and finds that the matters relied upon by the builder in his purported notice of termination were not matters that could support immediate termination of the Building Contract without compliance with the notice requirement in cl 15(b).
By failing to provide a remedial notice, the builder neglected to provide the home owners the opportunity to take steps to remedy the matters the subject of the builder's concerns, for example by undertaking not to contact any potential contractor without the builder's prior written consent. Particularly given the significant consequences of a building contract being terminated by the builder, such that the home owners are left with an incomplete building project, there is an obvious risk of terminating other than strictly in accordance with required contractual process.

Determination of the builder's complaint

In answer to questions from the Tribunal at the final hearing, the builder's evidence was to the effect that, at the time of his emails sent to the home owners on 3 and 4 May 2021, it was his position that as long as the home owners chose one of the options presented, including plying up the openings and authorising the lock up stage payment, it was his intention to continue with the Works in accordance with the Building Contract.[48]
[48] ts 235 - 238.
Further, in offering the home owners the option of plying up the openings, the builder agreed that he raised no concern at the time in relation to the plying up of openings having any impact upon the continuation of the works.[49] However, in subsequent correspondence with Building & Energy on 11 October 2021 in response to the home owners first complaint, being the subject of CC 1345 of 2021, the builder stated, among other things:
On or before the 5th of May 2021, the project was boarded up by Mr and Mrs Petsos, which prevented further work on the project from that time. (breach of Contract conditions)
[49] ts 238.
The evidence before the Tribunal makes clear that, in early May 2021, the builder's primary focus was on ensuring that the payment for the lock-up stage of the Works was made to him.
The Tribunal also finds it cannot accept the builder's evidence that, in the event the home owners agreed to ply up the openings and authorise the lock‑up progress payment, as they indeed elected to do, it was his intention to complete the Works in accordance with the Building Contract. The Tribunal considers that the credibility of the builder's evidence was adversely impacted to a significant extent by the additional or amended positions taken by him in the course of his response to the various complaints to the Building Commissioner the subject of the related proceedings.
Instead, the Tribunal is satisfied and finds that the builder was determined to bring an end to the Building Contract once the lock‑up payment had been received by him and proceeded to seek to terminate the Building Contract without a proper basis and without complying with the obligation to first provide a remedial notice.
By reason of the above matters, the Tribunal finds that the builder's purported termination of the Building Contract, by way of his notice of termination dated 25 May 2021, was invalid. In the circumstances, the application by the builder in CC 14 of 2023 must be dismissed.

Termination by the home owners

As noted above, and arising from the Statement of Agreed Facts, much of the year following the builder's purported notice of termination entailed periods of the parties engaging in correspondence in relation to the status of the Building Contract and the Works and participating in the Tribunal proceedings in respect of CC 1345 of 2021, the first of the related proceedings, including a number of mediation listings.
However, the evidence before the Tribunal is that the builder did not return to the site to continue the Works at any time after mid‑May 2021. A year later, on 12 May 2022 the mediation in CC 1345 of 2021 was terminated by the Tribunal Members conducting the process.
On about 16 June 2022, the home owners issued to the builder a breach notice in respect of the Building Contract,[50] with the home owners relying on the following 'Grounds for Termination':
[50] Exhibit 1, pages 350 - 366.
a)First, the Builder has issued the Builder's Termination in circumstances where the Builder's Termination was both:
i)unlawful, having been exercised absent any contractual right to terminate the Building Contract; and/or,
ii)invalid, having been exercised without strict compliance with the contractually enshrined procedure outlined in Clause 15, 16 and 17 of the Building Contract.
b)Second, the Builder has, premised on the misconception that the Builder had terminated the Building Contract by virtue of the Builder's Termination, failed to cause the Works to proceed in any material manner or attend the Site to cause any material progression in any way.
c)Third, the Builder has issued the Notice of Cessation , again, in circumstances where the Builder has mistakenly believed that the Building Contract has been terminated.
After setting out extensive detail as to the circumstances relevant to the above Grounds for Termination, the breach notice required that the builder, within 10 working days, address the alleged breaches by, in effect:
(a)formally withdrawing the builder's notice of termination in respect of the Building Contract;
(b)giving formal written notice that the builder has terminated his suspension of the Works and is in all respects lawfully able to complete the balance of the Works; and
(c)returning to site and carrying out the balance of the Works.
The breach notice also makes clear that, failing compliance by the builder with the notice, the home owners may proceed to issue a separate notice terminating the Building Contract.
With there having been no compliance by the builder with the requirements set out in the breach notice, the home owners on about 19 July 2022 issued to the builder their termination notice in respect of the Building Contract.[51]
[51] Exhibit 1, pages 399 - 407.
At all times up to and including the final hearing, and indeed the filing of closing submissions, the builder has maintained his position that he was entitled to terminate the Building Contract on the basis of his notice of termination dated 25 May 2021. It is agreed by all parties that, from at least mid-May 2021, the builder has not returned to site to progress the Works in any way. Further, consistent with his position that he had validly terminated the Building Contract, the builder issued a Form BA8 Notice of cessation to the home owners on 14 October 2021.
In circumstances where the Tribunal has found that his notice of termination was invalid, the issue of that notice and the builder's subsequent abandonment of the Works constitute clear and substantial breaches of the Building Contract.[52]
[52] Having regard again to Stojanovski & Anor v Australian Dream Homes Pty Ltd at [45] to [49].
The Tribunal is also satisfied that this conduct was repudiatory by reason of the builder having evinced an intention to no longer be bound by the Building Contract, which he had purported to terminate, and to no longer fulfil his obligations under the Building Contract in respect of completing the Works, which he had abandoned and to which he never returned.[53]
[53] Laurinda Pty Ltd & Ors v Capalaba Park Shopping Centre Pty Ltd at 647.
The parties gave evidence, involving a degree of conflict, as to discussions between them regarding a potential return by the builder to the site to assist in the completion of the Works. However, at no time has the builder agreed to withdraw his notice of termination and return to site and complete the Works in compliance with the terms of the Building Contract.
The Tribunal also finds, based upon the evidence of all parties as to a meeting between them on 11 August 2021 facilitated by a third party, that the written proposal arising from that meeting[54] for the builder to assist in the completion of the Works was woefully inadequate to address the invalid termination of the Building Contract and the builder's abandonment of the Works. The Tribunal finds that the builder's evidence that this constituted a proposal to 'finish the build at no further costs to the Petsos'[55] is simply not able to be accepted.
[54] Exhibit 1, pages 286 - 287.
[55] Exhibit 6 at [48].
The Tribunal finds that the home owners, having complied with the contractual obligation to issue a breach notice to the builder, were entitled to terminate the contract on the basis set out in their notice of termination dated 19 July 2022 and that the Building Contract was thereby terminated.

Relief sought by the home owners

In their Statement of Issues, Facts and Contentions lodged in each of the related proceedings on 1 December 2023, the home owners' position was that they sought orders from the Tribunal dismissing the builder's claim and requiring the builder to pay them compensation totalling $90,681.78 and comprising, in effect:
(a)'Loss of bargain' in the sum of $22,868.32, being the difference between the cost of having another building complete the works and the amount that remained to be paid to the builder under the Building Contract for the remaining works;
(b)The sum of $29,805.49 for the cost of addressing defective work by the builder;

(c)'Loss of opportunity' in the sum of $25,000, being the amount of the government building subsidy that the home owners claim they were not able to obtain by reason of the builder's purported termination of the Building Contract;
(d)Storage costs in the sum of $6,402.60;
(e)Interest paid by the home owners to their lenders in the sum of $899.42; and

(f)$6,605.37 in respect of credits that ought to have been applied to the price under the Building Contract in respect of works the subject of provisional sums and/or prime cost items.

In his evidence at the final hearing, Mr Petsos addressed the ongoing storage costs claimed by the home owners, and the increase in monthly costs, with the further amounts up to the date of this decision being sought by the home owners from the builder.
The home owners also sought in their Statement of Issues, Facts and Contentions an order in respect of their expert costs incurred for the purposes of the related proceedings and the fees in respect of certain of their complaints lodged with the Building Commissioner.
In relation to the orders sought by the home owners, the builder's closing submissions maintain the builder's primary argument that he was entitled to terminate the contract and did in fact do so and that, as a result, the home owners are not entitled to any compensation or other payments. As to the compensation sought by the home owners, the builder's closing submissions state, relevantly:
55.The Petsos claim for damages is for items that Judd was scheduled to complete and would have completed but for the breach of the Building Contract by Petsos. The items of work being work in progress was confirmed by Mr Martelli.
56.Further, it was also confirmed that any alleged defective work was all capable of remediation and in most instances was still work in progress.

No other submissions are advanced by the builder in relation to any contended reduction or rejection of the monetary amounts sought by the home owners, particularly in the event the Tribunal determines that the builder was not entitled to terminate the Building Contract.

While counsel for the builder questioned the experts called by the home owners at the final hearing, no submissions are advanced on behalf of the builder as to whether any amounts or items set out in the experts' respective reports and associated calculations ought to be deducted from any proposed award of compensation to the home owners.

No orders sought for works to be undertaken by the builder

As set out above, the complaint items the subject of CC 372 of 2023 have been referred by the Building Commissioner to the Tribunal as building service complaints, in respect of which the Tribunal generally first considers whether an order should be made requiring the builder to remedy any work that has been found by the Tribunal to be faulty or unsatisfactory or otherwise not completed in a proper and proficient manner.
As also noted above, the significant majority of the complaint items the subject of CC 372 of 2023 relate to what are said to be missing or incomplete items or works, as opposed to works that have been completed but in a defective manner.
In the course of his evidence at the final hearing, Mr Martelli, the building inspector expert called by the home owners:
(a)accepted that all the items addressed in his report dated 17 May 2023 are able to be remedied;[56]

(b)in respect of the items relating to tie-downs, considered those to be omissions that should have been done already by the builder at the relevant time, but which could still be done later in the works;[57] and
(c)otherwise accepted that the other items included in the scope of works section of his report are matters that constitute 'work in progress' and, in effect, are all matters that would be required to be completed by a builder before handover of the Works.[58]
[56] ts 20 - 261.
[57] ts 261.
[58] ts 260 - 266.

In respect of the tie-downs in the piers themselves, the evidence of:
(a)Mr Bartlett was to the effect that, with insufficient tie-downs, there is a risk of the roof blowing away after failure;[59] and

(b)Mr Jones was to the effect that the failure to include tie‑downs in the piers is a complete omission and requires face bricks to be removed in order to now install the required tie-downs, but that it is a failure that is still remediable and would, in the normal course, need to be addressed prior to handover of the Works.[60]
[59] ts 262, noting that the Tribunal's review of the recording indicates that the Transcript has incorrectly attributed this evidence to Mr Jones.
[60] ts 262.

The Tribunal finds that the effect of this evidence is that, in respect of the complaint items in CC 372 of 2023:
(a)the vast majority, if not all, are matters that, at the time the builder purported to terminate the contract, were still works in progress and which would, in the normal course, be required to be completed prior to handover of the Works; and

(b)for any items that may have been improperly omitted at the time, such as the tie-downs in the piers, or in respect of which some defect in the works to date was required to be remedied, that additional work would again be work that the builder would, in the normal course, be required to complete in a proper and proficient manner prior to handover of the Works; and
(c)compliant item 51, in respect of 'incomplete progress stage - practical completion', is not in itself an item of allegedly defective work, but acknowledges that, by reason of the termination of the Building Contract, the practical completion stage was never reached, being the time by which all of the works in progress, or work to remediate earlier work, would in the normal course be required to have been completed.

The complaint the subject of CC 372 of 2023 was lodged by the home owners with the Building Commissioner on 10 March 2023, being:
(a)more than 21 months after the builder issued his notice of termination of the Building Contract dated 25 May 2021;

(b)more than 7 months after the home owners issued to the builder their own notice of termination of the Building Contract dated 19 July 2022;
(c)more than 18 months after the home owners' first complaint, the subject of CC 1345 of 2021, had been referred by the Building Commissioner to the Tribunal; and
(d)two months after the Building Commissioner had referred to the tribunal the complaints the subject of CC 14 of 2023 and CC 15 of 2023 which encompass, among other things, the parties' respective contentions that the other party had repudiated the Building Contract.

In CC 372 of 2023, the home owners do not seek any building remedy order to require the builder to undertake any work in respect of the relevant complaint items.
By reason of the matters set out above, the Tribunal finds that all matters the subject of the complaint items in CC 372 of 2023 are matters that were already within the scope of, and are to be properly considered in determining the orders that should be made in respect of CC 1345 of 2021 and CC 15 of 2023. By reason of the Tribunal's findings that the builder was not entitled to terminate the contract and proceeded to abandon the Works without a proper basis, including issuing a notice of cessation, there is no basis for the Tribunal to consider any order for the builder to undertake specified building work. Instead, the consideration of appropriate orders requires an assessment of the items of compensation sought by the home owners.
Where a building service complaint has been referred to the Tribunal, the power to make a building remedy order under s 38(1) of the BSCRA Act arises only 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.
In respect of the complaint items the subject of CC 372 of 2023, the Tribunal finds that those items, consistent with the evidence of Mr Martelli in particular, are works that are still in progress and would, in the normal course, have to be completed or remedied prior to handover of the Works. The Tribunal is not satisfied that any of those items constitute works that have not been carried out in a proper or proficient manner or which are faulty or unsatisfactory. Rather, they are works that remain to be completed. However, even if this is incorrect, the compensation to be assessed in respect of matters CC 1345 of 2021 and CC 15 of 2023 encompasses the works still required to be undertaken to address all of the complaint items in CC 372 of 2023.
As a consequence of the above matters, the Tribunal declines to make any building remedy order in respect of the complaint items in CC 372 of 2023.

Amounts claimed other than costs associated with completion of the Works

The most significant amount, other than amounts associated with the completion of the Works, is the claim for 'loss of opportunity' in the sum of $25,000 in respect of the government building subsidy.
On the basis of the very limited evidence produced, the Tribunal is not satisfied that this is an amount that can be awarded to the home owners. In particular, there is no evidence before the Tribunal as to how the government building subsidy process functioned or the specific circumstances of the home owners' subsidy application in order for the Tribunal to be satisfied and make a finding that the home owners would have received the subsidy but for the builder's termination of the Building Contract.

The limited evidence of the home owners in respect of this claimed amount is set out in Mr Petsos' witness statement at [72] to [79]. The limited correspondence relied upon by the home owners does not assist the Tribunal in understanding how the government subsidy process applied with respect to any application by the home owners or to be satisfied that the they would have otherwise received the subsidy but for the purported termination by the builder.[61]
[61] Exhibit 1, email from Revenue WA dated 23 November 2021 at p 343 and letter from Revenue WA dated 2 May 2023 at pages 510 - 511.
There is no evidence before the Tribunal as to any other requirements or criteria required to be satisfied in order for the government subsidy to be paid, other than the references to $150,000 needing to have been paid to the relevant builder.
The Tribunal notes that the letter from WA Revenue dated 2 May 2023,[62] almost two years after the builder issued his notice of termination dated 25 May 2021, states relevantly:
Your application for this grant has been declined because you no longer have an active building contract to build a new home.
…
If a renovation contract is terminated by either the client or the builder, the agreement made to substantially renovate the home is no longer considered to be valid.
…
Unfortunately, supporting evidence and information provided shows that this did not occur. Your building contract was terminated unilaterally by the builder.
This is not a circumstance where we are able to consider a replacement contract.
Due to this, you are ineligible for the Federal HomeBuilder Grant.
If you believe this decision is incorrect, you may request an independent review by the Review Branch of RevenueWA within 60 days after the date of this decision.
[62] Exhibit 1, pages 510 - 511.
The 'supporting evidence and information' referred to in this letter has not been provided to or otherwise identified in the evidence before the Tribunal. It is also noted that the letter refers on a number of occasions to the Building Contract having been terminated by the builder. However, the clear position in the related proceedings, and the evidence relied upon by the home owners, is that:
(a)from shortly after the issue by the builder of his notice of termination, the home owners have maintained the position that his termination was invalid; and

(b)until such time as the home owners issued their own notice of termination in July 2022, they maintained that the Building Contract was still in effect.

However, even on the home owners' position, the Building Contract had been terminated by them well in advance of the letter from WA Revenue dated 2 May 2023.
There is no evidence before the Tribunal as to whether the home owners sought to avail themselves of the opportunity to seek an independent review by the Revenue Branch of Revenue WA, as referred to in the above letter, or to advance any position that the Building Contract had not in fact been terminated. Without evidence as to how the subsidy process worked, and what steps were taken by the home owners, or not taken as the case may be, the Tribunal is unable to make any determination in relation to the circumstances of the home owners ultimately not receiving the subsidy.
For these reasons, the Tribunal finds that the home owners have not established a sufficient basis to recover this amount from the builder, by way of orders made under the BSCRA Act, and the Tribunal declines to award any such amount.
The amounts claimed by the home owners in respect of storage costs comprise:
(a)The sum of $6,402.60 in respect of the costs of a storage unit for the period from 29 January 2022 through to 28 December 2023;[63]
(b)An amount of $899.42 interest paid to lenders;[64] and
(c)Ongoing storage costs from 28 December 2023 to the date of a decision in the related proceedings, with the additional amount as at the date of the final hearing being approximately $3,370.00.[65]
[63] Exhibit 1, page 615, being the payment history for the storage unit from 29 January 2022, and which notes that the storage fees are paid through to 28 December 2023.
[64] Which is understood by the Tribunal to relate to the storage costs, by reason of para 3.6.40 of the home owners' Statement of Issues, Facts and Contentions lodged on 1 December 2023.
[65] ts 66 - 67, with Exhibit 5 being a further payment statement in respect of the storage unit dated 22 October 2024 and including what is said to be the current monthly charge.
The Tribunal is not satisfied that the storage costs should be awarded against the builder for the following reasons.
Particularly given the claimed storage costs, as at the time of the final hearing, were in the order of $10,000, very limited evidence was before the Tribunal in relation to the nature of the items stored, the reasons why such storage was necessary or appropriate or why the need for such storage is said to arise from a breach of the Building Contract by the builder.
In his witness statement, Mr Petsos states:
Since 29 January 2022, Mrs Petsos and I have stored our possessions in a storage container whilst the Works were carried out to the point in time that we could move into the dwelling, so that they would not get damaged.
At the hearing, the evidence of Mr Petsos was that the items in the storage unit comprised an 'oven, … range hood and our furniture, such as a dining table and a few other items that we have no room for at our home'.[66]
[66] ts 69.
The Tribunal notes that the storage unit was only utilised by the home owners from 29 January 2022, being more than eight months after the builder had issued his notice of termination dated 25 May 2021.
No evidence was adduced as to why the home owners, having not required a storage unit during the time that the builder was undertaking the Works, or in the period of eight months after the builder abandoned the Works, then found it necessary to arrange a storage unit. Nor was any evidence adduced at the hearing as to why, more than two and a half years later by that time, the home owners still needed the storage unit by reason of the builder's conduct.
To the extent the home owners, for whatever reason, wish to arrange a storage unit, they are entitled to do so. However, the Tribunal finds that there is no basis, on the evidence before it, to consider that the storage unit was required to be arranged due to a breach of the Building Contract by the builder or that the builder should otherwise be required to pay any amount of the storage costs or the associated interest.
As noted above, the home owners' Statement of Issues, Facts and Contentions lodged on 1 December 2023 set out their claim for compensation totalling $90,681.78.
In their written closing submissions lodged on 13 December 2024, the home owners' updated position is stated as follows:
It is therefore respectfully submitted that the Tribunal accept Mr and Mrs Petsos' submissions on the appropriate award as to loss and damage as set out in the ASFIC, as amended by the Witness Statements of Mr and Mrs Petsos.
However, the closing submissions do not set out any further, additional or amended amounts of compensation claimed and no current schedule of claimed amounts was provided. Save for the evidence referred to above in relation to additional storage costs, and a number of references in the statement of Mrs Petsos as to her own calculations of additional interest charges[67], it is unclear to the Tribunal what parts of the witness statements of the home owners are said to be relevant to any additional amounts claimed or what are the specific additional amounts alluded to in the closing submissions.
[67] See for example Exhibit 2 at [203] to [208].
To the extent the home owners appear to be seeking interest, the Tribunal is not satisfied that there is any sufficient evidence to support the basis and proper calculations of any interest. Further, as far as the Tribunal can discern, the interest is claimed on amounts that the home owners otherwise seek as part of their overall compensation claim and, if such amounts are awarded, the home owners seek some amount of interest for the period up to the hearing of the matter. To the extent this constitutes an application for pre-judgment interest, the Tribunal is not satisfied that this can be claimed against the builder in the circumstances of this matter.
The Tribunal otherwise observes that the fundamental issue in the related proceedings is whether the first purported termination, being that of the builder, was valid and, if not, whether the subsequent purported termination by the home owners was valid.
The related proceedings do not include any complaint item alleging that the builder has delayed the completion of the Works beyond the time permitted in accordance with the provisions of the Building Contract. The time taken for the related proceedings to reach the final hearing does not, in the Tribunal's view, entitle the home owners to any pre‑judgment interest on any of the amounts claimed by them.

Cost to complete the works

In light of the above findings regarding the builder's conduct, the Tribunal finds that the home owners are entitled to compensation for the additional costs of completing the Works, as originally contracted. This is arrived at by assessing the sum now required to have the Works completed, less the amount that remained payable under the Building Contract.[68] Calculating the amount remaining under the Building Contract also requires consideration of any adjustments that should be made by reason of agreed variations or due to increases or decreases in provisional sums or price cost items. As a result, the consideration of these matters encompasses the remaining claim items by the home owners.
[68] See for example Lampman and Afra Constructions Pty Ltd [2014] WASAT 27 and Soliman and Beyond Builders Pty Ltd [2024] WASAT 57.
The home owners rely upon their expert reports, and the evidence given by those experts at the final hearing, in support of their claims for the amounts characterised as 'loss of bargain' (being the additional costs to now complete the works) and the costs of remedying what they say are the defective works.
The expert reports lodged by the home owners are as follows:
(a)Mr Rick Martelli of Ecovera Building Consultants, in his capacity as a registered builder and experienced building inspector, provided a report dated 17 May 2023;[69]
(b)Mr Brendon Bartlett of Structerre Consulting, an experienced engineer, provided a report dated 7 July 2023;[70] and

(c)Mr Chris Jones of Estimating Services Australia, an experienced estimator, provided a report dated 14 August 2023.[71]
[69] Exhibit 1, pages 512 - 570.
[70] Exhibit 1, pages 572 - 584.
[71] Exhibit 1, pages 589 - 614.

As noted above, the only experts who gave evidence in this matter were those called by the home owners. As the builder has not sought to rely on any expert evidence, there was no requirement for any expert conferral and the reports of the experts produced by the home owners are otherwise not contested beyond the limited matters put to them by counsel for the builder at the final hearing.
The Tribunal accepts the qualifications of each of the experts and was greatly assisted by their reports and their clear evidence at the final hearing.
Rather than seeking a single amount that represents the costs to complete the Works, the home owners seek separate amounts for:
(a)The costs of remediating the parts of the Works already undertaken by the builder; and

(b)The additional costs to complete the other outstanding Works, not being part of the remediation costs.

During their concurrent evidence, Mr Martelli agreed that the vast bulk of the matters addressed in his report constitute items that were work in progress at the time the Building Contract was purportedly terminated by the builder and that those items would, in the normal course, need to be completed before handover.[72]
[72] ts 260 - 265.
Consequently, it is unclear to the Tribunal why any work to address missing items, or items that may not yet have been completed in a proper and proficient manner, are claimed separately rather than being included by the home owners as part of the additional costs to now complete the Works.
In respect of this issue, the limited submissions in the builder's closing submissions set out above are to the effect that Mr Martelli confirmed that much of the outstanding work is 'work in progress' and that any alleged defective work was all capable of remediation and was again still 'work in progress'.

The characterisation of some or all of the tasks required to complete the Works under the Building Contract as 'work in progress' does not in itself assist the builder in this matter. Having purported to terminate the Building Contract in the manner that he did, and at no time agreeing to withdraw his notice of termination and resume the Works in accordance with the Building Contract, it is clear that the entirety of the remaining Works now need to be done by someone else. Whether that work is 'work in progress' or work required to remedy defects does not change the fact that the work must still be done by someone other than the builder.
However, the concern for the Tribunal is to be satisfied that separating the completion costs into two categories, namely additional costs to complete and costs of remediation, does not entail any amounts being double counted.
The total compensation claimed of $90,681.78 and the amounts for each of the categories within that total appear in a schedule titled 'Summary of Damages' dated 29 November 2023.[73] This document is difficult to follow and to reconcile with the expert reports relied upon by the home owners.
[73] Exhibit 1, pages 636 - 640.
In his quantity surveying report, Mr Jones includes the following totals:
(a)$133,439.00 in respect of the total estimated costs of work to be completed (including a builders' margin of 30% on the base cost and then 10% GST also applied);[74] and

(b)$11,326.00 in respect of 'non compliant works' (again including a builders' margin of 30% on the base cost and then 10% GST also applied).[75]
[74] Exhibit 1, page 594.
[75] Exhibit 1, page 595.

It is apparent from the matters included in each of the above totals that the two categories include separate works, with no apparent overlap or duplication between the two categories. Accordingly, the Tribunal understands the total cost for completing all remaining work, including any remediation work, calculated by Mr Jones is $144,765.00.
In respect of the 'non compliant works' figure, the schedule includes two different options in respect of the gutters and fascia, namely installing new gutters and fascia or painting the existing gutters and fascia. In response to a question from the Tribunal at the final hearing, Mr Jones agreed that, in his more detailed breakdown of those costs,[76] it should be either one or the other of those amounts. However, the Tribunal observes that the figure of $11,326.00 on the summary page is arrived at by including only the amount for new gutters and fascia, and not the amount to paint, such that an election has been made and no doubling up has in fact occurred.
[76] Exhibit 1, pages 605 - 606.
In response to questions from counsel for the builder, Mr Jones confirmed that he had not included any amounts in respect of potential defects that had been raised in Mr Martelli's report for consideration of an engineer and which Mr Bartlett had in due course considered and determined that no remediation was necessary.
The Tribunal also asked Mr Jones about a number of items for which there is a handwritten note of 'not applicable' in the Addenda to the Specification in respect of the Building Contract.[77] Mr Jones' evidence was to the effect that where this notation is included next to the items for shower screens and shelving, he believes this is an error by the builder, as those items are shown on the plans for the Works and, if they were not part of the Works, they should be marked as 'excluded' rather than 'not applicable'.[78]
[77] Exhibit 1, pages 31 - 45.
[78] Transcript pages 272 - 274.
In his evidence at the hearing, Mr Jones also confirmed that his report addresses the costs, including margin and GST, to complete all of the remaining Works, including any necessary remediation work, but without reference to any provisional sums in the Building Contract.

While there is reference to provisional sums in the home owners' Summary of Damages document, it is not entirely clear how the amounts in this document are arrived at. The document includes the following totals for the respective categories:
(a)$29,805.49 said to be the total sum for 'Defective Works';[79]

(b)$44,648.32 said to be costs in respect of certain of the works required for completion as set out in the report of Mr Jones;[80] and
(c)$56,780.00 said to be balance remaining for those parts of the Works that were the subject of Provisional Sum or Prime Cost items (as against the total amount of $75,050 for Provisional Sums and $5,040 for Prime Cost items said to be included in the Building Contract).[81]
[79] Exhibit 1, page 636.
[80] Exhibit 1, page 637.
[81] Exhibit 1, page 637 - 638.

The table in the Summary of Damages document in relation to the $56,780.00 amount includes at the top a reference to the report of Mr Martelli dated 17 May 2023. However, if it is the home owners' contention that the contents of that table are drawn from Mr Martelli's report, it is not clear to the Tribunal how that is the case, based upon it's reading of the report itself. As far as the Tribunal can discern, the total value claimed in respect of Provisional Sum items still to be completed incorporates a reduction from the amount for partly completed Provisional Sum items based upon the 'percentage complete' recorded in Mr Martelli's report.[82] However, for two of the Provisional Sum items that Mr Martelli records as being partly complete, namely plumbing work and electrical work, his estimate of the percentage completed includes a note that 'Licensed Contractor to co firm [sic]'.
[82] Exhibit 1, page 518.
In any event, two alternative approaches arise from the evidence proffered by the home owners for assessing the total costs remaining to complete the works, namely:
(a)The total sum of $144,765.00 arising from the report of Mr Jones, with the qualifications set out above as to what has and has not been provided for in his calculations and his reasoning as to why items marked 'not applicable' in the Addenda have been costed; or

(b)The total sum of $131,233.81 in the Summary of Damages document in respect of both the 'defective workmanship' and 'loss of bargain' categories.

In seeking to rely upon the second of the above figures, the Tribunal considers that the home owners have taken an appropriately conservative approach to calculating the reasonable costs of completing the Works under the Building Contract. The Tribunal notes again that the builder elected to produce no expert evidence of his own or to otherwise advance submissions in relation to any deductions that ought to be made to the amount claimed by the home owners. Taking into account these matters, and the extensive photographic and other evidence in the Hearing Book as to the incomplete state of the Works at the time they were abandoned by the builder, the Tribunal is satisfied and finds that the home owners' claimed cost to complete the Works is reasonable.
In arriving at this conclusion, the Tribunal also finds, based on the evidence before it, that the Building Contract included a provisional sum of $8,500 in respect of painting, and that the painting was within the builder's scope of work.
To calculate the amount of the completion costs that is to be paid by the builder, it is necessary to deduct from the estimated completion costs the amount that remained to be paid by the home owners under the Building Contract.

Here, the Summary of Damages document records that:
(a)the total price for the Building Contract was $202,342.10, which is understood by the Tribunal to include agreed variations; and
(b)the total amount paid by the home owners to the builder was $123,782.10.
The Tribunal is satisfied from the evidence and finds that the difference between the above figures, being the amount of $78,560.00, is the amount that remained payable by the home owners under the Building Contract. Deducting this amount from the $131,233.81 figure arising from the Summary of Damages document then provides the additional cost to the home owners of having the Works completed in the amount of $52,673.81. While this amount is equal to the sum of the 'Loss of Bargain' and 'Defective Workmanship' categories advanced by the home owners, the Tribunal considers that the entire amount is properly characterised as the reasonable additional costs to the home owners to have the works completed as a result of the builder's invalid termination of the Building Contract and abandonment of the Works in breach of his obligations under the Building Contract.
The final sum claimed by the home owners in their Summary of Damages document is the amount of $6,605.37 in respect of 'Clause 11(d) breach'. This amount relates to alleged failures by the builder to provide credits to the home owners against provisional sums for amounts that were either not required, or for which the provisional sum was higher than the actual amount subsequently incurred. The total figure for this claim includes:[83]
(a)$600.00 in respect of 'cross over fees' charged by the builder in his payment claim dated 15 November 2020; and

(b)An amount of $5,105.95, said to be the credit that should be provided to the home owners in respect of the provisional sum of $8,500 for demolition costs.
[83] Home owners Statement of Issues, Facts and Contentions at [3.5.1] to [3.5.12].

The Tribunal understands the balance of the claimed amount to comprise interest said by the home owners to have been paid by them as a consequence of not having these amounts credited at the relevant time.
The home owners position in respect of the outstanding credits against the demolition provisional sum was communicated by them to the builder over an extended period, including:
(a)the email sent by Mrs Petsos to the builder on 23 May 2021, and the letter attached to that email, which refers relevantly to an estimated cost saving of $5,800 against the provisional sum for demolition;[84] and
(b)the letter dated 7 June 2021 from the home owners to the builder, which, relevantly, requests documents in respect of the costs associated with the provisional sum for demolition and that the builder issue a variation to reflect the savings on demolition costs.[85]
[84] Exhibit 1, pages 218 - 221.
[85] Exhibit 1, pages 247 - 253.
In his witness statement, Mr Petsos addresses both the basis for and calculation of the claimed amount of $5,105.00 in respect of a credit against the demolition cost provisional sum.[86]
[86] Exhibit 4 at [83] to [88].
In her witness statement, Mrs Petsos addresses:
(a)the basis for the claimed credit in respect of the crossover fee;[87] and

(b)her discussions and correspondence with the builder in relation to the demolition woks and the home owners' understanding that a credit would be issued in respect of the cost savings.[88]
[87] Exhibit 2 at [171] to [177].
[88] Exhibit 2 at [185] to [197].

The Tribunal is satisfied and finds, based on the evidence of the home owners and the documents relied upon by them, that they are entitled to credits to have been issued to them in the total sum of $5,705.00, comprising:
(a)$600.00 in respect of the crossover fee; and
(b)$5,105.00 in respect of costs savings against the demolition provisional sum.
These amounts will be included in the compensation to be paid by the builder. However, consistent with the reasoning above, the Tribunal does not consider that interest should be ordered on these amounts.
The total amount of compensation to be paid by the builder to the home owners by reason of the builder's breaches of the Building Contract is $58,378.81, comprising:
(a)$52,673.81 for the additional costs to complete the Works; and
(b)$5,705.00 in respect of credits the home owners were entitled to have issued to them.
Both parties have expressed in their closing submissions that they seek to be heard in relation to the costs of the proceedings, which the Tribunal considers properly includes any application for the costs of the expert witnesses called by the home owners. However, such positions must be considered in light of these reasons and in accordance with the usual principles applicable in respect of the costs of proceedings in the Tribunal.
In the circumstances, the Tribunal will list the matter for a directions hearing to address the time period for payment of the compensation fixed by the Tribunal and any other orders that the parties seek arising from the Tribunal's decision, including as to any application for costs.
By reason of the matters set out above, the Tribunal makes the following orders:

Orders

The Tribunal notes that the following proceedings (the related proceedings) were heard together:
(a)CC 1345 of 2021;
(b)CC 14 of 2023;
(c)CC 15 of 2023; and
(d)CC 372 of 2023.

The Tribunal orders:
1.In respect of the proceedings in CC 1345 of 2021 and CC 15 of 2023, the respondent must pay compensation to the applicants in the total amount of $58,378.81 pursuant to s 43(1)(a) and s 41(2)(d)(i) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA).
2.The proceedings in CC 14 of 2023 are dismissed.
3.In respect of the proceedings in CC 372 of 2023, the Tribunal declines to make any building remedy order.
4.Each of the related proceedings is otherwise dismissed.
5.The related proceedings are listed for a directions hearing at 3.30 pm on 2 April 2025 to address the time period for payment of the compensation fixed by the Tribunal and any other orders that the parties seek arising from the Tribunal's decision, including as to any application for costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR M Benter, MEMBER
20 MARCH 2025

No	Item/Location/ Clause	Description
1	Clause 15(b)	Builder non complies with clause. Therefore his termination is not valid
2	Clause 16(a)	Builder uses clause to terminate despite his reason having already been settled with Owners. Builders statement, 'Cancelling materials…' is NOT TRUE
3	Clause 16(b)	(a) Builders reason to terminate is NOT TRUE. Therefore he can not use clause 16(b) (b) Some examples in past where Builder made statements NOT TRUE
4	Clause 16(b)	Builders reason to terminate is not valid. NO quotes interfered with work or progress to build
5	Home Building Act 1991, Part 2, Section 5	(a) Builder does not provide owners with a copy of complete signed contract (b) Builder does not provide even upon owners written request
6	Clause 11(d) Provisional Sums	Builder non complies to clause
7	Clause 12 Variations	Builder non complies with: (a) Cl. 12(b)(ii), (c)(ii) and (d)(ii) - Shouldn't be requesting owners additionally pay costs that don't meet Clause 12(b) - Shouldn't have issued Owners Variation dated 22/12/20 (b) Clause 12(a) (c) Clause 12(e)(ii) - for provisional sum savings - Demolition

Item Number	Location (e.g. garage) and/or contract issue	Description of Complaint Item
1	HBCA Cl 16(a)(b)(d), Cl 7(f) & Cl 19(d)(i)	Repudiation of contract. See 'relevant facts' attached.