PRATT and GAIL HOLDINGS PTY LTD
[2020] WASAT 135
•2 NOVEMBER 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION: PRATT and GAIL HOLDINGS PTY LTD [2020] WASAT 135
MEMBER: MS KY LOH, MEMBER
MS S CHURN, SESSIONAL MEMBER
HEARD: 12 AUGUST 2020
DELIVERED : 2 NOVEMBER 2020
FILE NO/S: CC 513 of 2020
BETWEEN: ANDREW PRATT
First Applicant
AMANDA FOX
Second Applicant
AND
GAIL HOLDINGS PTY LTD
Respondent
Catchwords:
Building service complaint - Height of kitchen benchtops not in accordance with plans or contract specifications - Sloping floor level - Building service was not carried out in proper manner and was unsatisfactory
Legislation:
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(1), s 5(2), s 36(1), s 36(1)(a), s 36(1)(c), s 38, s 43(1)
Home Building Contracts Act 1991 (WA), s 3(1), s 4(2), s 7(1), s 15A
Result:
Applicants' complaint upheld and application granted
Category: B
Representation:
Counsel:
| First Applicant | : | In Person |
| Second Applicant | : | In Person |
| Respondent | : | In Person |
Solicitors:
| First Applicant | : | N/A |
| Second Applicant | : | N/A |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Eftos and R & B Hunter Pty Ltd [2020] WASAT 94
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The owners of a home, Mr Andrew Pratt and Ms Amanda Fox, complain that their new kitchen benchtop was installed by their kitchen contractor, Gail Holdings Pty Ltd trading as Ikal Kitchens, at a height lower than that agreed between the parties.
The contractor relies on Ms Fox's instructions about keeping the underside of the existing architrave in setting the height of the benchtop around the kitchen.
The owners contend that the installation work was not carried out in a proper or proficient manner or was faulty or unsatisfactory.
Whilst accepting there was some miscommunication about whether the architrave should be removed, the Tribunal nonetheless finds that the contractor's installation work was not carried out in a proper manner and was unsatisfactory.
Background
The owners lodged a building service complaint with the Building Commissioner on 6 December 2019 under s 5(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (Building Services Act).
Upon investigation of the complaint, the matter was referred to the Tribunal on 16 April 2020 by the Building Commissioner.
Factual background
Sometime before the parties entered into the contract on 17 September 2019, a director of the contractor, Mr Joe Grassi, attended the home to consider design options for the installation works.
The kitchen bench areas consist of an 'L'-shaped benchtop with the sink near one end and the oven and fridge at the other end. Across from the 'L'-shaped benchtop is another 'L'-shaped benchtop area understood by the parties as the 'main workbench', one side of which hugs a window framed by an architrave.
The owners gave evidence that the window architrave is 880 millimetres from the ground, and that the original benchtop was flush to the architrave. This is not contested by the contractor's representatives.
There is an entryway between the two 'L'-shaped benchtops.
Ms Fox stated that the owners had stressed the importance of raising the height of the benchtop as Mr Pratt was tall, at 6 foot 8 inches. Ms Fox stated that Mr Grassi had indicated that he could build the height of the benchtop to 910 millimetres at the main workbench area, and had pulled up a tape measure to that height and at that location for effect.
The owners also recalled Mr Grassi indicating at that meeting that the architrave would need to be cut to deliver the benchtop at 910 millimetres. Ms Fox recalls saying to Mr Grassi to remove the architrave.
In oral evidence, Mr Grassi was equivocal about whether he denies or does not recall that that discussion occurred, but accepts that at that initial meeting he was aware that the benchtop needed to be as high as possible.
The contract to install the benchtops and cabinets was signed by the parties on 17 September 2019, which specified the benchtop height at 900 to 930 millimetres unless otherwise specified.
There was a second meeting to conduct a site measure between Ms Fox, Mr Grassi and another director of the contractor, Mr Paul Kingston. Mr Grassi considered it likely that the site measure occurred after the contract had already been signed, as they would usually go to a site measure after the client had agreed to go ahead with the contract.
The contractor then prepared production drawings after the site measure, which established proposed benchtop heights throughout the kitchen at 910 millimetres.
Mr Grassi recalls at the site measure that Ms Fox had agreed that the top and right hand side of the architrave needed to be removed, but not the bottom of the architrave. He relies on the production plans which contain handwritten annotations to that effect.
Mr Grassi stated that whilst the new benchtop heights were agreed at 910 millimetres, even if he had had any doubts about achieving that height he would not have expressed that to the owners; instead, with the floor being completely out of level, he would try to achieve 910 millimetres wherever possible.
Mr Kingston gave evidence that he had measured the kitchen and had asked some questions, including whether the architrave should be kept. Notwithstanding suggesting that the architrave be removed and replaced, he recalled Ms Fox instructing him to keep the architrave, and to keep the benchtop as close to the underside of the architrave as possible.
Mr Kingston then recalled telling Ms Fox that he would try but could not guarantee anything because he did not know the level of the floor, having the feeling that the floor was out of level.
Whilst Ms Fox doubted she would have instructed Mr Grassi or Mr Kingston to keep the architrave as it would constrain the height of the main workbench to its original height, she admits that she did not have a real recollection about this part of the conversation.
She stated that if it was put to her that retaining the architrave would jeopardise the 'agreed' height of the new main workbench, she would have rejected that idea as she had no interest in retaining the architrave.
Mr Kingston stated that he was neither aware nor told by Mr Grassi that one of the requirements of the owners was that the height of the main workbench be higher than the existing main workbench (or that it should be 910 millimetres).
When the installer came to install the cabinets on 7 November 2019, Mr Grassi stated that it was identified that there was an extreme fall from the kitchen entryway. He stated that the installer spent a few more hours to achieve level benchtops, installing the benchtop at close to 910 millimetres from ground level at the 'low end' of the room, and achieving a height lower than 910 millimetres from ground level at the 'high end' of the room (that is, the main workbench).
Mr Grassi said that when the kitchen was delivered and installed, they had left a 19millimetre board template sitting on top of the kitchen in preparation for the supply of the benchtops. The template was at almost the same height as the current height of the new kitchen benchtops, bar 2 millimetres. He stated that the owners did not comment on the height of the new benchtop in the three and a half weeks that the benchtop company worked on the benchtops, nor during two onsite visits by Mr Grassi for other matters.
The owners did not lead any evidence disputing that version of events, although Mr Pratt stated that they noticed about a day later that the new benchtop seemed low and at some point they spoke to Mr Grassi about their concerns.
Expert evidence
Each party called their own expert ostensibly to give an opinion on whether the installation work was carried out in a proper or proficient manner or was faulty or unsatisfactory. The owners called a carpentry expert, Mr Simon Edwards, director of Taurus Property, whilst the contractor called Mr Tony Casella, who is the owner and director of Styleside Cabinets.
Mr Edwards has worked with kitchen companies for eight years to install a large number of kitchens, and has 27 years' experience in carpentry and joinery. Mr Casella is a cabinet maker with around 16 years' experience, and has been a long-standing member of the Cabinet Makers Association of Western Australia.
Both experts prepared expert reports and gave evidence before the Tribunal at the final hearing.
In the main, both experts are in agreement that the kitchen was installed level, and that the distance of the benchtop heights from the ground ranged from as low as 875 millimetres from the main workbench, to nearly 910 millimetres to the right of the sink.
Mr Casella stated in his report that the kitchen installation most likely commenced towards the low side of the room hence why the sink side of the cabinetry finished between 905 to 908 millimetres. In order to maintain the cabinetry level from the sink side over to the main workbench side (where the floor level is raised dramatically), Mr Casella considered that the installer would have lowered the cabinets to allow for the flooring, and the base (kickboards) would have been cut to make this allowance, hence the difference in the base heights.
Mr Casella was of the opinion that the cabinets were within an acceptable level reading, and that the cabinetry was well above standard. He observed that, had the kitchen installation started at the highest floor level (main workbench side), the kitchen height would have started at 910 millimetres and increased to roughly 935 millimetres towards the sink side and the bases would have finished at 175 millimetres (which would have been different to the plans).
Mr Edwards stated in oral evidence that in his experience, he would have checked the levels of the floor prior to installation, and if it was not the same across the kitchen, he would have told the clients they were not level and discussed it with them before carrying on with the works.
Mr Casella stated in oral evidence that he tended to agree that when it became apparent that the floor was sloped that questions should have been asked about the impact of the slope.
Finally, Mr Edwards stated that to remedy the benchtop heights, he would have to strip the kitchen completely and start again, installing the kitchen using the cupboards and doors to the correct height, raising the overhead cupboards, supplying new kickboards and end panels and install. Factoring the cost of replacing the benchtop due to the risk of damage while removing and reinstalling, Mr Edwards estimated the costs of remedial works at approximately $16,000 plus GST. Mr Casella did not proffer an opinion on the scope of any remedial works nor the costs of such works.
Building services complaint
Under s 38 of the Building Services Act, the Tribunal may deal with the owners' building service complaint by making a Building Remedy Order (BRO) if satisfied that the regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory.
A BRO is an order which compels a person who carried out the regulated building service to remedy the building service, or pay for remedial costs or compensation: s 36(1) of the Building Services Act.
The Tribunal must therefore be satisfied that there is a regulated building service which is carried out by the contractor, and that the regulated building service was not carried out in a proper and proficient manner or is faulty or unsatisfactory.
Regulated building service carried out by builder
The definition of 'regulated building service' under paragraph (b) of its definition under s 3 of the Building Services Act relevantly includes 'home building work' that is carried out by a person for another person under a 'home building work contract' and not carried out for a person who is in turn obliged to perform the work under another contract.
'Home building work' has the meaning given in s 3(1) of the HomeBuilding Contracts Act 1991 (WA) (Home Building Act), which definition relevantly includes the whole or part of the work of altering, improving or repairing a dwelling.
'Home building work contract' is defined under s 3(1) of the Home Building Act as a contract between the builder and an owner for the performance by the builder of home building work, subject to exclusions that do not apply in this case.
'Builder' is defined under s 3(1) of the Home Building Act to mean a person who carries on a business which consists of or includes the performing of home building work for others.
The contract signed by the parties includes a provision requiring the owner to acknowledge having received a copy of a prescribed notice as specified under s 4(2) of the Home Building Act, which notice contains an explanation of the relevant provisions that apply to home building work contracts. It is not clear whether the owners received a copy of the prescribed notice as that part was not acknowledged with the owners' signature.
In any event, the Tribunal is satisfied that the installation of new kitchen benchtops and cabinets is 'home building work' as it comes within the meaning of altering or improving a dwelling.
As such, the installation works by the contractor constitute a regulated building service, as such works were performed by the contractor as a 'builder' and were the subject of a home building work contract.
Service not carried out in a proper and proficient manner or is faulty or unsatisfactory
This is not a case of faulty building service being provided, as there is no dispute about the quality of the cabinets, and all parties and experts agree that to achieve a level kitchen, the benchtops will need to be installed at different heights from floor level.
Instead, the main issue in this case is whether, to the extent that the main workbench was not installed at a height of 910 millimetres, the service was carried out in a proper and proficient manner, or was unsatisfactory.
In the Macquarie Dictionary Online (as at 2 November 2020), the following terms carry the following meanings:
•'proper' is relevantly defined as '… 2. conforming to established standards of behaviour or manners; correct or decorous[.]';
•'proficient' is relevantly defined as '… 1. well advanced or expert in any art, science, or subject; skilled[.]'; and
•'unsatisfactory' is defined as '… not satisfactory; not satisfying specified desires or requirements; inadequate'.
No question has been raised about whether the contractor had carried out the installation in a skilled manner; rather, the issue is whether there is a professional expectation, desire, or requirement for the contractor to have consulted with the owners for further instructions about the benchtop heights once the slope was discovered.
The issue of consultation is not moot as the owners say that, had they been consulted about the impact of the slope of the floor on the height of all the benchtops, in particular, the main workbench, they would have elected to maintain the height at 910 millimetres at the main workbench and raise the benchtops everywhere else to above 910 millimetres.
Both experts agree that they would have sought further instructions from the client once the slope in the floor was identified.
Whilst the contractor has not accepted that there was any agreement to install the main workbench at a height of 910 millimetres at the first meeting, the Tribunal is persuaded by the evidence of the owners that a specific height was discussed, as Mr Pratt's height is a significant issue for him. That the height of 910 millimetres was ultimately reflected in the plans as being the height of all benchtops from the floor, supports the owners' recollection of events that that specific height was discussed at the first meeting.
The Tribunal also prefers the evidence of the owners that they would have specifically requested the benchtop height of 910 millimetres for the main workbench, as they recall a specific discussion with Mr Grassi about removing the existing architrave to accommodate a higher height for the benchtop.
On Ms Fox's admission that she did not have a real recollection about keeping the window architrave, and Mr Kingston's unwavering evidence that she objected to its removal, the Tribunal accepts Mr Kingston's recollection of events (which is consistent with Mr Grassi's evidence). However, the Tribunal finds it likely that Ms Fox misunderstood or misheard Mr Kingston, and therefore did not understand the impact of her instructions to retain the architrave, as her instructions to Mr Kingston would have been inconsistent with her desire to increase the height of the main workbench.
Despite Ms Fox's conflicting instructions, which would have made achieving a benchtop height of 910 millimetres impossible at the main workbench, at no time did the contractor amend or vary the benchtop heights indicated in the plans (910 millimetres) nor the contract specifications (900 to 930 millimetres), which, under s 7(1) of the Home Building Act, must be in writing and signed by both parties.
Most importantly, the person responsible for installing the kitchen cabinets and benchtops, when faced with an inconsistency between delivering benchtop heights at 910 millimetres as specified in the production plans, and complying with an instruction to retain the existing architrave, should have consulted with the owners first before proceeding with the installation.
That both experts agree that this simple step should have been taken before the installation of cabinets and benchtops (which removal now risks cracking the stone benchtops) supports the Tribunal's conclusion that the contractor's installation service was not carried out in a proper manner and was unsatisfactory.
Finally, while it might be the case that the owners did not mention the height of the proposed benchtop when the template was put in, there is no evidence of whether (and if so, to what extent) the owners were using the kitchen during that time and so would have identified benchtop height issues. In the Tribunal's view, the owners were entitled to rely on the contractual specifications and plans without having to check, in the midst of installation, whether (and if so, to what extent) it was proceeding as specified.
Potential breach of home building work contract
In the course of the hearing, the Tribunal explored the issue of whether a claim could alternatively be made that the contractor engaged in misleading or deceptive conduct under s 15A of the Home Building Act and whether the owners could make a complaint under s 5(2) of the Building Services Act.
If that alternate claim could be established, the Tribunal could, in lieu of making a BRO under s 38 of the Building Services Act, make a HBWC remedy order under s 43(1) of the Building Services Act.
As the complaint against the contractor was established under s 38 of the Building Services Act, and to the extent that any HBWC remedy order that could have been made would be equivalent to the remedies granted under a BRO, it is not necessary for the Tribunal to consider whether to invite an amendment of the application to include a complaint under s 5(2) of the Building Services Act.
BRO
The owners indicated that they are willing to allow the contractor to remedy the installation works, having no issue with the quality of the contractor's installation works save for the height of the benchtops.
The Tribunal will make a BRO under s 36(1)(a) of the Building Services Act that the contractor remedy the deficiency in the height of the main workbench by:
(a)removing and re-installing the kitchen benchtops, cabinets and any affected kitchen appliances so that the height of the main benchtop is 910 millimetres from the floor, and all other benchtops are level with the main workbench;
(b)replacing any stone benchtops which are cracked by the removal and re-installation process; and
(c)making good the remedial area.
At the hearing, the owners sought, by way of compensation for the loss of amenity of a kitchen that was installed November 2019, an order for the payment of an amount which is essentially the equivalent of the final outstanding progress payment under the contract (about $2,700).
This Tribunal has previously rejected, in the matter of Eftos and R & B Hunter Pty Ltd [2020] WASAT 94, (Eftos) as a general concept, that nonpecuniary damages for what amounts to a loss of amenity falls within the scope of compensation under s 36(1)(c) of the Building Services Act (Eftos at [71]).
In forming this conclusion, the Tribunal found that an order under s 36(1)(c) for the payment of a sum of money as compensation does not expressly provide a general right of compensation for any damage or loss suffered as a result of the impugned building service (Eftos at [63]).
For the same reasons, the Tribunal rejects the owners' oral application for, effectively, an order for compensation to be paid by the contractor to the owners in the sum of the final progress payment.
In any event, in light of the Tribunal's finding that Ms Fox's inconsistent instruction to the contractor at the site measure contributed to the miscommunications between the parties about the height of the benchtops, the Tribunal would have declined to make an order pursuant to s 36(1)(c) of the Building Services Act for compensation.
While the Tribunal does not have to make a determination about whether an HBWC remedy order can be made for a claim for loss of amenity, for the reason stated in [68], the Tribunal would have in any event declined to make an order for compensation even if the complaint was made under s 5(2) of the Building Services Act.
Conclusion
For the reasons stated above, the Tribunal is satisfied that the installation of cabinets and benchtops in the owners' kitchen was a regulated building service by the contractor that was not carried out in a proper manner, and was unsatisfactory.
Orders
The Tribunal makes the following orders:
1.The application is allowed.
2.Within eight weeks of this order, the respondent will:
(i)remove and re-install the kitchen benchtops, cabinets and any affected kitchen appliances so that the height of the benchtop ('main workbench') across from sink benchtop is 910 millimetres from the floor, and all other benchtops are level with the main workbench;
(ii)replace any stone benchtops which are cracked by the removal and re-installation process; and
(iii)make good the remedial area.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS K Y Loh, MEMBER
2 NOVEMBER 2020
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