RAE and PRIMA HOMES NOMINEES PTY LTD

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   RAE and PRIMA HOMES NOMINEES PTY LTD [2020] WASAT 24
MEMBER:   MS R PETRUCCI, MEMBER
MR R AFFLECK, SENIOR SESSIONAL MEMBER

HEARD:   20 JANUARY 2020 (FINAL DOCUMENTS FILED ON 4 FEBRUARY 2020)
DELIVERED          :   25 FEBRUARY 2020
FILE NO/S:   CC 1438 of 2019
BETWEEN:   JAMES RAE
Applicant
AND
PRIMA HOMES NOMINEES PTY LTD
Respondent

Catchwords:

Building Services (Complaint Resolution and Administration) Act 2011 (WA) - Building service complaint - Standing of neighbour to lodge building service complaint - Whether regulated building service carried out in a way that was not done in a proper and proficient manner or was faulty or unsatisfactory - Whether owner has been adversely affected by regulated building service - Whether an order to be made by the Tribunal under s 38 of Building Services (Complaint Resolution and Administration) Act 2011 (WA) - Application for costs in proceedings

Legislation:

Building Act 2011 (WA), s 3
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s3, s 5, s 5(1), s 9(1), s 6(1), s 10, s 11(1), s 11(1)(d), s 36(1), s 36(1)(a), s 36(1)(c), s36(2), s 38, s 38(1), s 49, s 49(1)
Building Services (Complaint Resolution and Administration) Bill 2010 (WA)
Building Services (Complaint Resolution and Administration) Regulations 2011 (WA), reg 5
Building Services (Registration) Act 2011 (WA), s 3, s 17, s 18
Interpretation Act 1984 (WA), s 5
State Administrative Tribunal Act 2004 (WA), s 9, s 87(1), s 87(2), s 87(6)

Result:

Application unsuccessful

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	In Person

Solicitors:

Applicant	:	N/A
Respondent	:	N/A

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

Gemmill Homes Pty Ltd v Sanders [2018] WASC 179
J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S)
Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT (S)
Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [No 2] [2008] WASAT 302
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

This is an application under the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act).
Mr James Rae (owner or applicant) is the owner of No 32 Fleming Avenue, Cannington (the property).
On 13 August 2019, the owner lodged a complaint against Prima Homes Nominees Pty Ltd, (builder or respondent) with the Building Commissioner. The complaint concerned damage to the rear brick wall of the property (wall). The owner alleged that the builder caused damage to the wall as a result of excavation work which included the removal of trees in front of the wall at the rear of No 12 Corona Crescent, Cannington (development site) which is owned by Mr Craig Bordas and Mrs Karen Bordas (Mr and Mrs Bordas).
Earlier, on or about 5 June 2019, the owner had made a claim on his home insurance in relation to the wall. That claim was rejected by the owner's insurer because Mr Raymond Condelli of RC Consulting Engineers in his report of 5 July 2019 to the insurer concluded that the 'wall had not been engineered and unlikely [to have met] the required Australian Standards [but had] performed without failure … for [12] years' (RC report). Mr Condelli reported that the failure of the wall was due to the excavation and removal of trees in front of the wall for sewer and storm water drainage works at the rear of the development site leaving the non-engineered wall critically susceptible to wind loads. Mr Condelli recommended that the wall be made safe immediately and provided two alternate solutions.
In about July 2019, the owner decided to have the entire wall demolished by BR Construct Ceilings, a business operated by his son, Mr Brian Rae, at a cost of $6,124.95 which included electrical works and re-laying of pavers. At about this time the owner obtained a quote from Bulocho Landscaping Pty Ltd to build a new brick wall for $12,089. That did not go ahead. Rather, on 24 July 2019, the owner agreed with Mr and Mrs Bordas, for the owner to demolish the existing wall at his cost and for Mr and Mrs Bordas to install and pay for a Colorbond fence to replace the demolished wall.
The builder says it received a copy of the RC report on or about 9 July 2019 but without any explanation as to what the owner was seeking from the builder. The builder claimed that the owner had the wall demolished prior to notifying the builder and therefore was not given the opportunity to inspect the wall and provide an independent engineering report. Further, the builder claimed that the demolition cost sought by the owner was excessive and strongly disputed that any of its work on the development site was responsible for any damage to the wall.
On the 26 August 2019 the Building Commissioner's delegate (Building Commissioner) accepted the owner's complaint (C176801) about the wall, and on 12 September 2019 the Building Commissioner decided, pursuant to s 11(1)(d) of the BSCRA Act to refer the complaint to the Tribunal for determination. The reason for the referral was stated as follows:
1.The parties require the opportunity to present their cases and evidence at a hearing.
On 29 October 2019, the Tribunal made its usual orders programming the matter through to a final hearing. The orders required the owner and the builder to provide to the Tribunal and a copy to the other party all the documents on which they wished to rely including any expert reports, photographs and quotations or other documents relevant to the costing of the complaint.
The final hearing was set down for one day on 20 January 2020. At the conclusion of the hearing, at the request of the parties, the Tribunal made the usual orders allowing each party to apply for their costs of the proceedings, and if a party applied for costs, the order allowed the other party to file written submissions opposing the costs application. Finally, the Tribunal ordered that it would determine the application(s) for costs on the documents and fix the amount of any costs awarded.
Following the receipt of the final documents on 4 February 2020, the Tribunal reserved its decision.
The Tribunal had before it a hearing book (Exhibit 1) which included the referral from the Building Commissioner, the owner's documents and the builder's documents. At hearing, the owner tendered a revised costing dated 16 December 2019 totalling $6,124.95 (Exhibit 2). Finally, the builder tendered a drawing of the cross section showing the house sewer run relative to the wall (Exhibit 3). All three exhibits were taken into evidence.
The owner attended the final hearing and gave evidence. He called the following persons to give expert evidence:
(1)Mr Condelli who prepared the RC report for the owner's insurer; and
(2)Mr Rae who supervised the demolition and removal of the brick wall.
Further, the owner called upon Mr Rae to explain his invoice for works completed totalling $6,124.95 and Mr Tee of Bulocho Landscaping Pty Ltd to explain the quote (undated) for $12,089 to rebuild the brick wall with a concrete footing.
Mr Ryan Secola and Mr Tony Secola attended the final hearing on behalf of the builder and gave evidence. The builder called the following person to give expert evidence:
(1)Mr Gervase Purich of Structerre Consulting Engineers (Structerre).
Further, the builder called upon Mr Robert Damiano of Damiano Design & Construction to explain the quotes dated 8 December 2019 to build a new brick wall and supply materials for $6,186.79 and an estimate of costs to complete the demolition of the wall and removal of materials and to provide a new footing for the new pier for $1,276.
Each of Mr Condelli, Mr Rae and Mr Purich answered questions put to them by the owner and the builder. They were also asked questions by the Tribunal in relation to the owner's complaint about the wall.

The facts

The Tribunal makes the following findings of fact:
(a)The owner's wall was built in about 2007 and was located about 300 millimetres inside of the boundary of the property (ts 19, 24, 20 January 2020). There are no design or engineering drawings for that wall (Exhibit 1 page 60).
(b)In or about 2016, the palm tree behind the south corner of the wall was lopped (Exhibit 1 pages 61 and 89).
(c)On 26 March 2019, the City of Canning issued to the builder a building permit to build two brick and Colorbond single dwellings at the development site (Exhibit 1 page 35).
(d)The development site is owned by Mr and Mrs Bordas. The site is described as generally flat and level as is the surrounding topography. Prior to the demolition of the house and shed in May 2019 by the builder, the front and rear areas of the property were covered in vegetation with small to medium sized trees (Exhibit 1 page 108).
(e)On 10 April 2019 the builder completed the demolition of the existing house and shed on the development site. The development site was raked to a depth of approximately 750-800 milimetres and stump grinding of the trees located adjacent to the wall was done. Several trees in front of the wall were removed by the builder in May 2019 for the purpose of installing a subsurface sewer and storm water drainage for the development site (Exhibit 1 page 108).
(f)The earthworks for the development site were completed on 3 May 2019. Brick delivery was on 5 and 6 May 2019. Footings and the slab were put down on 17 May 2019 (Exhibit 1 page 108).
(g)During a storm on either 3 or 6 June 2019 the owner heard a loud bang in the rear of his property. The owner did not notice any physical damage to the wall but some days later the owner observed the alignment of the wall and the side gate had moved. The wall was on a lean away from the owner's property (Exhibit1 page 108).
(h)On or about 5 June 2019 the owner made a claim with his insurer for storm damage to the wall (Exhibit 1 page 108).
(i)The owner advised Mr Condelli that on or about 29 June 2019 the ground in front of the wall on the development site was compacted (Exhibit 1 page 108).
(j)On 3 July 2019 Mr Condelli inspected the wall and provided the RC report to the owner's insurer on 5 July 2019. The insurer rejected the owner's claim for storm damage in regards to the wall on 8 July 2019 because the cause of damage to the wall was 'due to recent excavation and removal of trees for sewer and storm water drainage works on the rear development site' as stated in the RC report (Exhibit 1 page 68).
(k)On or about 9 July 2019, the owner provided the builder with a copy of the RC report. On 19 July 2019 the builder emailed the owner referring to the RC report where it concluded that the wall was constructed without engineering design or council approval (Exhibit 1 pages 57-58).
(l)The owner engaged BR Construct Ceilings to demolish and remove the wall. Those works commenced on 23 July 2019 as evidenced by BR Construct Ceilings invoice (undated) for $6,500 where it made the notation that on 23 July 2019 the lights and power sockets were disconnected and the wall was taken down and removed (Exhibit 1 page 31).
(m)On 24 July 2019 the owner entered into an agreement with Mr and Mrs Bordas for the owner 'to remove unstable brick wall within your boundary line, down to, but not including the existing retaining wall' at the owner's cost and for Mr and Mrs Bordas to 'erect a colourbond [sic] dividing fence only, on the boundary line between our properties' at Mr and Mrs Bordas' cost. Mr and Mrs Bordas organised and paid for the Colorbond dividing fence installed on the boundary line of the property (Exhibit 1 page 54).
(n)After the wall had been demolished and the rubble removed, on 25 July 2019 the owner issued to the builder a notice of proposed complaint. Subsequently, on 13 August 2019, the owner lodged a complaint against the builder with the Building Commissioner (Exhibit 1 pages 43-45 and 48).

Orders sought by each party

The owner seeks an order from the Tribunal requiring the builder to pay him $18,625 for the cost he incurred to have the wall demolished ($6,124.95) plus the cost to rebuild the brick wall ($12,500). The owner said he would be quiet happy for the builder to build the wall (ts 164, 20 January 2020). Finally, in closing submissions, the owner sought costs in these proceedings of about $2,400 (ts 164, 20 January 2020).
On the other hand, the builder seeks an order from the Tribunal dismissing the owner's application because the wall was originally constructed without an engineering design and it does not meet Australian standards. Further, and in any event, the builder disputes that it caused or is liable for any damage to the wall. Finally, in closing submissions, the builder sought costs in these proceedings of $6,044.50 (ts 166, 20 January 2020).

The issues

The following issues require determination by the Tribunal:
(1)Is the owner, a person who may lodge a building service complaint under s 5(1) of the BSCRA Act in respect of a regulated building service carried out by the builder on the development site?
(2)What, if any, regulated building service was carried out by the builder on the development site?
(3)Was the regulated building service carried out in a way that was not done in a proper and proficient manner or was faulty or unsatisfactory within the meaning of s 38(1) of the BSCRA Act?
(4)How has the owner been adversely affected by the regulated building service?
(5)Is the builder required to rebuild the wall in brick or pay compensation to enable the owner to have the wall rebuilt in brick?
(6)What costs of these proceedings, if any, are payable by the owner or the builder to the other party?

The law

Subject to the BSCRA Act, a person may make a complaint within certain time limits to the Building Commissioner, including about a regulated building service not being carried out in a proper and proficient manner or being faulty or unsatisfactory (s 5(1) and s 6(1) of the BSCRA Act and reg 5 of the Building Services (Complaint Resolution and Administration) Regulations 2011 (WA) (Regulations). Section 3 of the BSCRA Act provides that a regulated building service includes a building service carried out by a registered building service provider or an approved owner builder.
Having accepted a building service complaint, the Building Commissioner is then required to cause an investigation to be carried out and, after having regard to any report given under s 10 of the BSCRA Act, may refer the complaint to the Tribunal for it to deal with under s 38 of the BSCRA Act (s 3, s 9(1) and s 11(1) of the BSCRA Act).
The Tribunal may then make a building remedy order if it is satisfied that the regulated building service has not been carried out in a proper or proficient manner or is faulty or satisfactory (s 38(1) of the BSCRA Act).
A building remedy order is defined in s 36(1) of the BSCRA Act and includes an order that a person who carried out a regulated building service remedy the building service as specified in the order (s 36(1)(a) of the BSCRA Act). It also includes an order 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 and unsatisfactory building work (s 36(1)(c) of the BSCRA Act). Section 36(2) of the BSCRA Act provides that a building remedy order may require the order to be complied with within a time specified in the order.
If the Tribunal finds that the building service was defective or incomplete, it is important to note that a party does not have the option as to whether the builder undertakes those works (see Gemmill Homes Pty Ltd v Sanders [2018] WASC 179). In this case the application is between a neighbour (the applicant/owner) and the builder of the development site next door. The Tribunal notes that it is likely to be troublesome to order the builder to undertake any works because the owner and/or neighbour at the development site may refuse the builder access to his property and therefore the order will not be able to be complied with. In the circumstances of this case therefore, if the Tribunal is to make an order under s 38 of the BSCRA Act, it will make a monetary order.

Summary of the owner's position

In his notice of proposed complaint dated 25 July 2019, the owner described the complaint as:
[A] dividing brickwall undermined by [the] builder by removing trees on the boundary and not taking due care and attention to secure the brickwall.
Further, in his notice of proposed complaint, the owner asserted that the builder failed to provide to him the BA20 form (Notice and request for consent to encroach or adversely affect) and the BA20A form (Notice and request for consent (response notice): Protection structures, party walls, removal of fences, access to walls).
Subsequently, on 13 August 2019 the owner lodged a building complaint with the Building Commissioner alleging the builder's work on the development site was not carried out by the builder in a proper and proficient manner or was faulty or unsatisfactory. In the complaint's schedule, the owner listed the following items as requiring remedial work:
1)Undermined the foundation of the brick wall by taking out the trees and roots into our land and never produced notice BA20A.
2)Damage to wall by drains as part of new buildings.
On 22 August 2019 the owner lodged a further complaint with the Building Commissioner as follows:
1)Back wall made unsafe and no notice given BA20A was never produced.
The owner stated in that further complaint that the builder undermined the wall by removing the trees to gain access to lay the drains and soak wells. The Building Commissioner accepted the owner's complaint of 22 August 2019 as a schedule or part of the first complaint lodged on 13 August 2019.
The owner's position may be summarised as follows:
•The wall was 'perfectly fine' before the builder took down the five trees and dug them out with big heavy machinery (ts 8-9, 28, 20 January 2020).
•The lean in the wall is 20 millimetres over 1.2 metres (ts 29, 20 January 2020).
•He did not want a Colorbond fence but agreed for the neighbours, Mr and Mrs Bordas, to put it up as a temporary measure.
Mr Condelli stated that he was engaged by the owner's insurer to find out what was the most likely cause of the damage to the wall (ts 43, 20 January 2020). Having inspected the wall and surrounds, Mr Condelli concluded in the RC report that the ground on the development site had been heavily disturbed and that large tree roots could be seen against the rear section of the development site. Mr Condelli clarified at hearing that he only saw the leftover root systems in the ground (ts 43, 20 January 2020). Further, in giving evidence Mr Condelli stated in summary:
•The wall was not structurally sound because it was on a bad lean and could be moved by hand (ts 45, 20 January 2020).
•Previously the wall was structurally sound as it had not failed in about 12 years (as explained to him by the owner). This is so even though the wall did not have steel in it and had brick footings and would not meet the current standards of design and construction (ts 4547, 20 January 2020).
•The cause of the wall failure is irrelevant to the wall not meeting the current standards (ts 68, 20 January 2020).
•Prior to the removal of the trees, the wall was shielded by the trees so the wind load was minimised (ts 55, 20 January 2020).
•The ground was heavily disturbed and as a result the ground supporting the footing has had some elastic strain which has caused the footing to rotate and the wall deviated from plumb with the result it was on a lean (ts 47, 20 January 2020).
•The root systems of the trees close to wall, being the trees that were not stump ground, disrupted the soil adjacent to the footing (ts 51-52, 20 January 2020).
•The large bang heard by the owner is likely to have been a masonry failure which was caused by the rotation of the wall rather than the wall not having steel in it or being reinforced (ts 47, 20 January 2020).
•It is unlikely the wind would have caused the wall to fail (ts 58, 20 January 2020).
•If the soil adjacent to the ground had been stabilised prior to any work then the wall would not have failed (ts 56-57, 20 January 2020).
•The digging of the sewer line and the connection pit were too close to the wall and they should be one to two slope (as set out in the Structerre report dated 7 May 2019). Both Structerre and the builder knew that the ground adjacent the wall was unstable and needed to have careful works. This is because the Structerre report dated 7 May 2019 stated in part:
No allowance has been made for future disturbance for installation of underground services, or additional earthworks by builders or others. Builders should carry out their own compaction checks on a lot-by-lot, basis, compacting any localised loose areas where necessary.
•Regardless of how the trees were removed, the trees contributed to the cause of the wall failure as did the drainage works (ts 52-53, 20 January 2020).

Summary of the builder's position

The builder's position is that it takes no responsibility for the lean in the wall, the cost of an entire new brick wall or the cost incurred by the owner in having the wall demolished and removed. The builder's position may be summarised as follows:
•The demolition works at the development site were completed on or about 10 April 2019 including removal of trees within the boundaries of the development site.
•Neither the BA20 form nor a BA20A form was required as there were no issues of undermining the wall with the tree removal process and there was no reason to encroach the owner's property, construct retaining walls, protect existing structures, or to access the owner's property.
•It first became aware on or about 10 June 2019 of the owner's concern about a loud bang whilst bricks were being delivered to the development site which suggested that the wall may have been struck by the brick cartage contractor. No physical damage to the wall was sighted.
•No communication was received from the owner apart from the RC report which it received on 9 July 2019. By email to the owner on 19 July 2019 it referred to the RC report where it was concluded that the wall was constructed without engineering design or council approval.
•Two of the five trees along the boundary of the development site were very close to the wall and were ground out. There was no digging beside the wall or under the wall to retrieve the roots. The stumps were not pulled out because they were too big and they were close to the boundary. The stumps are a couple of metres from the wall (ts 31, 34-35 and 38-39, 20 January 2020).
•Mr and Mrs Bordas compacted the ground of the development site near the wall on 29 June 2019 (and not the builder) yet the RC report stated that the ground was soft to dig.
•Structerre was engaged to review the documents (as set out on page 1 of its report). In their report of 6 December 2019, Structerre concluded in part:
As to the suggestion that excavation may have lead to the lean developing in the wall, the timeline does not fit. Once the excavations were filled, and given there was no collapsing during excavation, the likelyhood [sic] that the bearing was reduced only under the footing with no other changes on the surface seems unlikely to the extreme.
It is unclear when the lean in the wall developed, however based on our experience with both palm trees and excavations on similar sites, it seems fairly clear that it is likely to have developed due to the presence of the root ball behind the wall in conjunction with the structurally inadequate wall experiencing wind loads it was previously sheltered from due to the vegetation on 12 Corona Crescent.
•It received the notice of proposed complaint seeking costs of about $20,000 from the owner the day after the wall was demolished (ts 15, 20 January 2020). The amount claimed by the owner is unreasonable. Damiano Design and Construction provided quotes to demolish the wall and build an entire new wall for a total of $7,462.79.
Mr Purich stated at hearing in summary:
•From an insurance point of view, the wall was stable in the sense it was standing up but from an engineering point of view, the wall was not safe and even though it may have been stable it was not structurally sound (ts 47, 20 January 2020).
•The wall was standing up because it was standing up in an unstable equilibrium because it was not able to be subject to wind loads. Once the trees were removed, the wall was exposed to wind loads. The large bang heard by the owner was likely a masonry failure, a wind event (ts 46-47, 20 January 2020).
•The site was classed 'P' due to the uncontrolled fill (as there was a disused below ground pool which was located about 5 metres from the wall) (ts 60, 20 January 2020). The site was remediated and compaction tests carried out (ts 63, 20 January 2020).
•A 63 kilometre an hour wind will cause the masonry wall to crack when a shielding [such as the trees] is removed (ts 68, 20 January 2020).
•Just because a wall is standing does not make it right. It just means it is standing (ts 68, 20 January 2020).
•The standards when the wall was built in about 2007 are still the same standards today (ts 68, 20 January 2020).
•The greatest lean in the wall is where the trees were ground out not further down where the trees were pulled out (ts 69, 20 January 2020).
•Where the connection pit with a depth of 1660 is located, the photographs (Exhibit 1 page 143) show the ground has not been disturbed or that there has been any sort of movement (ts 70, 20 January 2020).
•The palm tree is about 300 millimetres from the wall on the owner's property. When it was planted the palm tree was of an insignificant size. However, from the photographs when the palm tree was lopped in 2016 it was of a significant size. As a palm tree grows it develops a root ball and that root ball expands; it puts a natural load onto the wall. The root ball having expanded caused the wall to lean over. The builder started doing the excavation works on the development site including removing all the vegetation which exposed the under designed wall to the wind which resulted in the wall masonry cracking (ts 74-76, 20 January 2020).
•The crack in the wall is separate from the lean in the wall. The lean had been there for some time which was caused by the palm tree which was planted too close to the wall (ts: 74-76, 20 January 2020).
•The connection pit has not caused the wall to lean. The growth of the palm tree is what caused the wall to lean. The wind event is what caused the wall to crack (ts 83, 20 January 2020).

Consideration by the Tribunal

Who may lodge a complaint under s 5(1)?

Section 5 of the BSCRA Act relevantly provides:
Making complaint about building service or home building work contract matter
(1)Subject to the regulations, a person may make a complaint to the Building Commissioner about a regulated building service not being carried out in a proper and proficient manner or being faulty or unsatisfactory.
…
(5)The regulations may make provision as to -
(a)who can make a building service complaint; and
(b)any preliminary action required before making a complaint under this section[.]
The Explanatory Memorandum to the Building Services (Complaint Resolution and Administration) Bill 2010 (WA) (the BSCRA Bill) explained at page 10 that s 5(1) of the BSCRA Act:
… allows not only a consumer of a building service to make a complaint, but also any person adversely affected, such as a neighbour[.]
…
A complaint about a regulated building service hinges upon the quality of performance of the regulated building service. If the quality of the service was not carried out in a proper and proficient manner or is faulty or unsatisfactory, then the making of a complaint is warranted[.]
Regulation 5 of the Regulations sets out who may make a building services complaint as follows:
A building service complaint about the carrying out of a regulated building service may only be made by a person whose interests are being, or have been, adversely affected by the carrying out of the regulated building service.
The word 'person' is not defined in the BSCRA Act or the Regulations. However, the term is defined in s 5 of the Interpretation Act 1984 (WA) as follows:
person or any word or expression descriptive of a person includes a public body, company, or association or body of persons, corporate or unincorporated[.]
The Tribunal is satisfied that the owner is a person who may make a building services complaint. This is because, in the Tribunal's view, the relevant provisions referred above should not be restrictively interpreted and that the BSCRA Bill envisaged complaints to be advanced by a neighbour having no proprietary interest in the structure related to building service the subject of complaint, but whose interests in his or her own property has been affected.
Having concluded that the owner is a person who may lodge a complaint with the Building Commissioner, the Tribunal turns, next to determine if there is a regulated building service.

What is the regulated building service?

It was not contested that the wall leaned. However, what is contested is whether the lean in the wall was caused by or resulted from a 'regulated building service' carried on by the builder on the development site. If the Tribunal finds that the owner is advancing his claim in respect of a 'regulated building service' then the Tribunal will be able to further consider his complaint.
The term 'regulated building service' is defined in s 3 of the BSCRA Act as follows:
regulated building service means any of the following -
(a)a building service carried out by a registered building service provider or an approved owner builder;
(b)home building work that is -
(i)carried out by a person for another person under a home building work contract or other contract or arrangement for gain or reward; and
(ii)not carried out for a person who is in turn obliged to perform the work under another contract;
(c)any other service or work prescribed for the purposes of this definition[.]
The term 'building service' is defined in s 3 of the BSCRA Act as follows:
building service means any of the following -
(a)building work (as defined in the Building Act 2011 section 3);
(b)demolition work (as defined in the Building Act 2011 section 3);
(c)plumbing work;
(d)any other service or work prescribed for the purposes of this definition[.]
The term 'registered building service provider' has the meaning given in s 3 of the Building Services (Registration) Act 2011 (WA) (Registration Act) as follows:
registered building service provider means either of the following -
(a)a building service practitioner;
(b)a building service contractor[.]
The requirements to be a building service practitioner and/or building service contractor are set out in s 17 and s 18 respectively of the Registration Act.
The terms 'building work' and 'demolition work' are defined in s 3 of the Building Act 2011 (WA) as follows:
building work means -
(a)the construction, erection, assembly or placement of a building or an incidental structure; or
(b)the renovation, alteration, extension, improvement or repair of a building or an incidental structure; or
(c)the assembly, reassembly or securing of a relocated building or a relocated incidental structure; or
(d)the changing of ground levels of land for the purposes of work of a kind mentioned in paragraph (a), (b) or (c) to an extent that could adversely affect land beyond its boundaries; or
(e)site work on any land for the purposes of, or required because of, work of a kind mentioned in -
(i)paragraph (a), (b), (c) or (d); or
(ii)paragraph (a) or (b) of the definition of demolition work;
or
(f)other prescribed work,
but does not include work of a kind prescribed for the purposes of this definition as not being building work[.]
…
demolition work means -
(a)the demolition, dismantling or removal of a building or an incidental structure; or
(b)the changing of ground levels for the purposes of work of a kind mentioned in paragraph (a) to an extent that could adversely affect land owned by a person other than an owner of the land on which the building or incidental structure that is the subject of the demolition work is located; or
(c)other prescribed work,
but does not include work of a kind prescribed for the purposes of this definition as not being demolition work[.]
The Tribunal is satisfied that the builder is a registered building service provider who undertook a regulated building service which included excavating, the removal of trees and stump grinding of some of the trees in front of the wall in order to install sewer and storm water drainage. It is these works which the owner alleged caused his wall to lean.
The Tribunal turns, next, to consider whether the owner's interests are being, or have been adversely affected by the builder carrying out the regulated building service comprised of the excavating, the removal of trees and stump grinding of some of the trees in front of the wall in order to install sewer and storm water drainage.

Are the owner's interests being affected or have been adversely affected by the builder carrying out of the regulated building service?

It is useful to note the observations of Mr Condelli who inspected the wall on 3 July 2019 which are set out in the RC report (pages 1 to 2) as follows:
•The rear wall is of single brick and pier construction
•The bricks used to construct the wall and piers are standards 230L x 110W x 76H
•The rear wall dimension is approx. 16500L x 2060H x 110W
•The piers are a single brick attached to the wall i.e. 230 wide including wall and mortar. The piers are spaced at approx. 2400 centres along the wall. The owner advises the piers are brick tied into the wall, but are most likely not steel reinforced anchored to the footing
•The wall has a full height expansion joint at approx. 8m from the front of the wall
•The wall has been constructed on top of 240H x 500L masonry blocks. These blocks are on an approx. 160 deep concrete/masonry footing
•There are no visible cracks in the wall or piers
•One of the piers has silicon at the top where there is cabling going to a light
•The gate (south) end of the wall can be moved by hand
•The wall is on an approx. 20mm lean (over 1.2m), away from the property at the south end. This lean diminishes to vertically plumb approx. 3.7m north of the expansion joint
•Adjacent to the loose and leaning south end of the wall are recently installed drainage risers and a storm water tank
•The closest sewer riser is approx. 1100 from the wall
•The storm water tank measures 1660 deep and is approx. 1400 from the wall
•There is a large palm tree behind the south corner of the wall in the property of #32. The top of the tree has been lopped by the owners. (The owner advises the tree was lopped since it was allowing rats to get into the house)
•The ground in front of the wall (on the development site) is soft to dig. No penetrometer test was under taken to determine compaction
•Large tree roots can be seen against the rear section of the wall in the development site
•There is a boundary peg at the south end of the wall indicating this end of the wall is in the property of #32
It is common ground that the builder was not given the opportunity by the owner to inspect the wall before it was demolished. Further, it is agreed by the parties that it is not known when the wall started to lean.
Both Mr Condelli and Mr Purich agreed that the wall was not built to an engineering standard and accepted that the 'large bang' heard by the owner on either 3 or 6 June 2019 was indicative of a masonry failure. Further, both Mr Condelli and Mr Purich agreed that the palm tree root ball was too close to the wall.
Mr Condelli concluded in the RC report (Exhibit 1 page 62) that:
… it is most likely that the rear brick wall on 32 Fleming Avenue Cannington has failed due to excavation works and removal of the trees on the near neighbouring site leaving the non-engineered wall critically susceptible to wind loads.
Mr Purich arrived at the opposite conclusion. He stated in his letter to the builder (Exhibit 1 page 90):
… the suggestion that excavations may have lead to the lean developing in the wall, the timeline does not fit. Once the excavations were filled, and given there was no collapsing during excavation, the likelyhood [sic] that the bearing was reduced only under the footing with no other changes on the surface seems unlikely to the extreme.
Mr Purich explained that the lean in the wall developed due to the presence of the palm tree's root ball behind the wall in conjunction with the structurally inadequate wall experiencing wind loads it was previously sheltered from due to the vegetation/trees on the development site in front of the wall. In addition, Mr Purich explained that the excavations for the sewer (900 deep) were far enough from the wall to be outside the angle of repose. Mr Purich did, however, accept that the stormwater manhole was theoretically too close to the wall, however, he explained that as it was not along the length of the wall (a localized excavation only) and as the photographs show, the soil between the manhole and the wall remained undisturbed after backfilling, so there is no evidence that the manhole excavation caused the wall to lean.
The Tribunal prefers the evidence of Mr Purich who concluded that the lean in the wall developed due to the presence of the owner's palm tree's root ball in conjunction with the structurally inadequate wall experiencing wind loads that the wall was previously sheltered from. The owner's evidence was that the wall was fine. The Tribunal accepts that the wall was 'stable' when there were trees and vegetation in front of the wall on the development site. However, once the trees and vegetation was removed, the wall was subject to the elements; in particular to wind loads that it was previously sheltered from. Mr Condelli accepted that the wall was shielded by the trees and therefore the wind load was minimised. The Tribunal finds that the removal of the wind shield being the trees and vegetation in front of the wall, coupled with the large root ball of the palm tree caused the wall, which was constructed without an engineering design and did not meet Australian standards, to lean and therefore fail.
The Tribunal accepts Mr Purich's view that there is no evidence that the manhole excavation caused the wall to lean. This is because the photographs (Exhibit 1 pages 142-143) taken of the wall and the manhole clearly show that the ground had not been disturbed.
The Tribunal concludes therefore that the owner has not established that the wall leaned or was otherwise damaged by the building service carried out by the builder on the development site which comprised the excavation works, the removal of trees and stump grinding of some of the trees in front of the wall in order to install sewer and storm water drainage.

Is the builder required to build a new brick wall or pay an amount to the owner to build a new brick wall?

The Tribunal notes that costings were provided by the owner to build an entire new brick wall (as he stated that the Colorbond fence erected and paid for by Mr and Mrs Bordas was only a temporary measure). However, the recommendation in the RC report did not provide for the removal of the entire wall. Mr Condelli's recommendations were as follows (Exhibit 1 page 62):
The rear brick wall requires immediate make safe to stop any risk of collapse. The wall should also be cordoned off on both sides to stop any activities near the wall. Please contact this office for further advice.
The remedial works will require an engineered solution to reinstate the vertical alignment of the wall and provide the required structural integrity to meet the Australian Standards. This may involve one of the following:
1.ground injection and structural strengthening of the existing wall
2.removal and reinstatement of the front - expansion joint leaning section of wall with a newly engineered wall section, plus structural strengthening of the remaining section of wall.
A certificate of compliance for retrospective approval will need to be lodged with the local council once remedial works are completed[.]

No costings were provided in relation to either of the above recommendations.
In any event, no amount is payable by the builder to the owner in regards to the wall. This is because the Tribunal earlier concluded that the owner has not established that the wall leaned or was otherwise damaged by the building service carried out by the builder on the development site which comprised the excavation works, the removal of trees and stump grinding of some of the trees in front of the wall in order to install sewer and storm water drainage.
The Tribunal therefore declines to make an order under s 38 of the BSCRA Act and will dismiss the applicant's application in respect of his complaint.
Finally, the Tribunal turns to consider each of the owner's and the builder's respective applications for costs in these proceedings.

Costs in these proceedings

Both the owner and the builder claimed their respective costs in these proceedings before the Tribunal.
It is useful to first set out how costs in relation to these proceedings are to be considered.
Section 87(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) directs that unless otherwise specified in the SAT Act, the relevant enabling Act, in any other order of the Tribunal made pursuant to s 87(2) to s 87(6) of the SAT Act, the parties bear their own costs in a proceeding of the Tribunal. However, s 87(2) of the SAT Act confers a discretionary power on the Tribunal to make an order for the payment of all or any of the costs of another party, unless specified to the contrary in the relevant enabling Act. Section 49 of the BSCRA Act (the enabling Act in this proceeding) relevantly provides:
(1)Subject to this section, the Building Commissioner or the State Administrative Tribunal may make such orders for costs as they think fit in relation to proceedings arising from a building service complaint or a HBWC complaint.
…
(7)This section does not limit the powers of the State Administrative Tribunal under the State Administrative Tribunal Act 2004 Part 4 Division 5.
Therefore, in substance, s 49 of the BSCRA Act, by conferring a broad unrestricted discretion on the Tribunal to award costs, appears to constitute a departure from s 87(1) of the SAT Act. This means in considering a claim for costs made pursuant to s 49(1) of the BSCRA Act, the Tribunal is not required to start from the position that each party is bear its own costs. Having said that, it is well understood that costs do not follow the event at the Tribunal and the broad discretion conferred on the Tribunal is to be properly exercised by taking into account relevant considerations.
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 sets out the relevant principles in relation to costs applications. They may be summarised as follows:
(1)There is no presumption that a successful party is entitled to costs;
(2)The discretionary power is to be exercised judicially; that is not arbitrarily, capriciously or so as to frustrate the legislative intent;
(3)The power to award costs is to be exercised if it is fair and reasonable in all the circumstances of the case to do so;
(4)The onus is on the party seeking an order in its favour to establish that a favourable order ought to be made;
(5)The nature of the dispute is a relevant consideration in any application for costs.
(6)Every party to a proceeding before the Tribunal is taken to be cognisant of the objectives of the Tribunal as expressly provided for in s 9 of the SAT Act. It is therefore necessary for the applicant to establish that the respondent's conduct has impaired the attainment of the Tribunal's objectives to have the proceedings determined fairly and in accordance with the substantial merits, with as little formality an technicality as possible and in a way which minimises the costs to the parties; and
(7)The mere fact that a party ultimately fails on a contention advanced during the course of the hearing does not, in itself, signify that the party has acted inconsistently with the objectives set out in s 9 of the SAT Act.
The procedures of the Tribunal are designed to achieve the objectives prescribed by s 9 of the SAT Act. Where an order for costs is made by the Tribunal, the Tribunal's obligation to minimise the costs to parties will be reflected in the costs assessed by the Tribunal as recoverable. That approach reflects an expectation that parties will approach proceedings in a way that minimises costs of the proceeding: J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S) at [38].
An award of costs is not intended to be a full indemnity for the actual expenses incurred by a party. The Tribunal has previously decided that, generally, an order for costs should be approached in a broad and relatively robust fashion: Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [No 2] [2008]WASAT 302at [67] and Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT (S) at [49]. Even though fixing costs involves a relatively broad brush approach, the Tribunal must nevertheless be satisfied that the costs claimed are reasonable and not excessive in nature.
The owner claimed costs of $2,414.50 in these proceedings as follows:
(a)invoice dated 13 August 2019 for $59.50 for complaint lodged with the Building Commissioner; and
(b)bank transfer for $2,414.50 on 18 January 2020 for Mr Condelli to attend the hearing and give expert evidence.
The builder claimed costs of $6,044.50 in these proceedings as follows:
(a)Structerre invoice #WA-361056 dated 7 November 2019 for $385 to read the RC report;
(b)Structerre invoice #WA-367150 dated 13 December 2019 for $1,259.50 for Structerre to provide an expert report; and
(c)Structerre invoice #WA-370958 dated 20 January 2019 for $4,400 for Mr Purich to attend the hearing and give expert evidence.
The reasons given by the builder for seeking costs in these proceedings and for opposing costs claimed by the owner may be summarised as follows:
•Despite requests to the owner to clarify his concerns, the owner instead claimed storm damage on his insurance whereby he obtained the RC report. The claim for storm damage could be seen as disingenuous way for the owner to obtain a free engineer's report. When the owner's insurer rejected his claim, the owner then used the RC report.
•During the directions hearing on 29 October 2019 the owner stated that he made payment of $6,500 to his son, Mr Brian Rae. Before the final hearing Mr Brian Rae produced a new document for 6,124.95 even though the owner had previously stated that he paid his son $6,500.
•The owner never had any intention of resolving this matter as evidenced by his lack of correspondence and the demolition of the entire wall before a formal complaint was made to the builder.
The owner did not make any written submissions opposing the builder's claim for costs.
The Tribunal is of the view that it is appropriate in this case for the owner to be ordered to pay a portion of the builder's costs in these proceedings for two reasons. First, the owner was entirely unsuccessful as against the builder and ought to have conceded his complaint. Secondly, the owner did not conduct himself in a way which minimised the costs to the parties. By the owner strongly pursuing his complaint, with little attempt to resolve the dispute, the builder was forced to incur costs in engaging an engineering expert to investigate and report on the complaint and to attend the final hearing.
Taking a broad brush approach in a relatively robust fashion, the Tribunal considers that $4,000 ought to be recovered by the builder from the owner as reasonable and not excessive in nature. This will contribute to the builder's costs in engaging Structerre to investigate and report on the owner's complaint. The Tribunal will therefore order the owner to pay to the builder $4,000 by 30 March 2020 pursuant to s 49 of the BSCRA Act and s 87(2) of the SAT Act.
For the reasons set out above, the Tribunal will make the following orders.

Orders

The Tribunal orders:
1.The Tribunal declines to make a building remedy order under s 38 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) and the applicant's application is dismissed.
2.Pursuant to s 49 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) and s 87(2) of the State Administrative Tribunal Act 2004 (WA), the applicant shall by 30 March 2020 pay to the respondent $4,000.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R PETRUCCI, MEMBER
25 FEBRUARY 2020

[2020] WASAT 24

25 FEBRUARY 2020

Key Legal Topics

Areas of Law

Administrative Law

Legal Concepts

Standing

Adverse Possession

Unconscionable Conduct

Compensatory Damages