ROBERTS and TIBBOTT
[2019] WASAT 96
•11 OCTOBER 2019
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION: ROBERTS and TIBBOTT [2019] WASAT 96
MEMBER: MS P LE MIERE, MEMBER
MR C MARSH, SESSIONAL MEMBER
HEARD: 11 OCTOBER 2019
DELIVERED : 11 OCTOBER 2019
PUBLISHED : 23 OCTOBER 2019
FILE NO/S: CC 1307 of 2019
BETWEEN: JUSTINE KERRY ROBERTS
BRIGHAM RANFORD
Applicants
AND
JAMES ANTONY TIBBOTT
PINA DELLA POSTA
Respondents
Catchwords:
Building Services Act - Conversion of building remedy order - Works required by building remedy order - Costs of removal of asbestos contaminated waste - Cost of replacement of contaminated items not able to be cleaned
Legislation:
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 11(1)(c), s 36, s 36(1)(b), s 36(1)(c), s 37, s 51
Result:
Application allowed
Category: B
Representation:
Counsel:
| Applicants | : | No Appearance |
| Respondents | : | No Appearance |
Solicitors:
| Applicants | : | N/A |
| Respondents | : | N/A |
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The application was heard on 11 October 2019. An oral decision was delivered shortly after the conclusion of the hearing and an order made that pursuant to s 36(1)(b) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (the BSCRA Act) that Mr Pina Della Posta and Mr James Anthony Tibbott (respondents) pay $66,956.81 to Mr Brigham Ranford and Ms Justine Kerry Roberts (applicants).
The following reasons for decision have been prepared from the transcript and have been subjected to only minor editing to improve clarity of expression and set out.
At the commencement of the hearing an attempt was made by the Tribunal to contact the respondents to ascertain whether either or both of the respondents intended to appear. The Tribunal was unable to make contact with the respondents.
The respondents did not engage with the Building Commission.
The respondents did not attend the directions hearing at the Tribunal.
Given the respondents' lack of participation in the proceedings the Tribunal determined it was appropriate to proceed with the hearing in the absence of the respondents.
The complaint
The applicants lodged a complaint against the respondents with the Building Commissioner alleging a regulated building service carried out at their home in Wembley (property) was not carried out in a proper and proficient manner or was faulty or unsatisfactory.
On 24 May 2019 an authorised delegate of the Building Commissioner made Building Remedy Order No. 100 of 2019 (BRO) pursuant to the provisions of s 11(1)(c) and s 37 of the BSCRA Act.
A complaint was subsequently lodged by the applicants with the Building Commissioner that the respondents had not complied with the BRO.
The Building Commissioner referred the non-compliance with the BRO to the Tribunal and on about 23 August 2019 the complaint was accepted by the Tribunal and the matter proceeded to hearing.
The BRO concerns six items of complaint. Complaint items 2 and 6.2 were dismissed. Complaint items 1, 3, 4 and 6.2 relate to building work on or in connection with the roof and guttering at the property.
Complaint item 5 is with respect to the asbestos contamination caused by the respondents when they carried out a regulated building service at the property.
The applicants seek an order pursuant to s 51 of the BSCRA Act to convert the BRO, that required remedial work to be carried out, to a monetary order.
Legislation
Section 51 of the BSCRA Act grants discretion to the Tribunal to revoke a building remedy order and to make a building remedy order pursuant to s 36(1)(b) or (c) of the BSCRA Act.
Section 36 of the BSCRA Act reads as follows:
(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;
(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.
(3)A person who is not a building service contractor may arrange for a building service to be carried out for the purpose of compliance by that person with a building remedy order referred to in subsection (1)(a) despite the Building Services (Registration) Act 2011 section 7.
The hearing
Before the Tribunal was a hearing book, being Exhibit 1, that contained various expert reports on the scope of works required for the removal of the asbestos contamination and the costs thereof.
The applicants gave evidence at the hearing.
The respondents did not submit any evidence or seek to challenge any of the evidence submitted or allegations made by the applicants. The Tribunal notes that the respondents did not engage with the Building Commission or respond to the allegation that they did not comply with the BRO.
The issues
The issues to be determined by the Tribunal are:
•What was the remedial work the respondents were required to perform pursuant to the BRO?
•Have the respondents completed the remedial work required and complied with the BRO?
•If the respondents have not complied with the BRO should the Tribunal exercise its discretion under s 51 of the BSCRA Act and revoke the BRO and make a Building Remedy Order pursuant to s 36(1)(b) or (c)?
•If the Tribunal determines it should revoke the BRO and make a building remedy order, what is an appropriate order?
Evidence
Presna Pty Ltd (Presna) was engaged by the applicants to conduct an Asbestos Contamination Assessment of the property. The assessment was conducted on 7 November 2018. The report is at page 88 of Exhibit 1.
A total of 19 settled dust samples and one bulk sample suspected to contain asbestos were collected and submitted to Prensa's approved National Association of Testing Authorities (Australia) accredited laboratory for analysis. The asbestos bulk sample and settled dust samples report is provided in appendix 1 to the Prensa report (page 94 of Exhibit 1). In summary, four of the settled dust samples and one bulk sample were reported to contain asbestos.
The Prensa report notes there was visible cement debris present in sporadic areas to the exterior of the property. Visible dust was no longer present at the site externally and this was assumed to be due to the timeframe that had passed between the event and Prensa's inspection. It was however noted that small elements of debris were still present within the gaps of the paving where the applicants advised Presna they had washed down items.
The Prensa report at page 96 of Exhibit 1 set out the site specific recommendations.
In summary it recommends:
(a)that access should be restricted to above the ceiling of the site to prevent mechanical disturbance without the dedicated use of controlled access/egress, personal protective equipment, respiratory protective equipment and wet decontamination facilities. Alternatively it recommends that the removal of the damaged asbestos cement eaves as well as removal and disposal of suspected affective roof insulation be conducted as far as is reasonably practicable;
(b)the removal of the asbestos contaminated dust to affected eaves areas;
(c)the guttering and down pipes be removed as contaminated waste;
(d)the external roof should be subjected to an environmental clean to remove any residual contamination that has not yet migrated into the guttering;
(e)all foliage in the immediate vicinity be disposed of;
(f)the top layer of soil/grass be excavated to a minimum depth of 100 millimetres and disposed of as contaminated waste;
(g)any paving slabs and non-fixed flooring should be lifted and the topsoil subjected to excavation;
(h)all previously laundered items that the client witnessed were subjected to visible contamination should be disposed of as contaminated waste;
(i)additionally any porous items such as carpet, blinds and curtains should be disposed of as contaminated waste if the client believes they were visibly contaminated following the event. Prensa cannot confirm that the items in the above two points were subjected to cut contamination. However to mitigate risk based on the clients visual inspection it would be prudent to remove as contaminated waste and replace;
(j)household items such as the vacuum cleaner and the washing machine should be disposed of as contaminated waste as it cannot be confirmed these items are free from asbestos following the advice that these items were utilised in part of the clients' own decontamination of the property; and
(k)external power tools such as the lawnmower which have moving parts and were immediately below the affected area of the eaves should be disposed of as contaminated waste.
Soft furnishings
The applicants gave oral evidence that they needed to replace the porous items such as carpets, blinds and curtains which they had witnessed had had visible contamination because the testing that had been carried out by Prensa, could not necessarily determine if these items were free of asbestos contamination.
Both applicants explained that the testing process was to place a small piece of sticky tape at different places on the item and to test that piece of tape to see if there were any asbestos fibres on it.
They informed the Tribunal that they were told by the experts from Prensa that the nature of an asbestos fibre is such that it seeks to burrow into porous fabric that it lands on and may not become 'loose' until a further point in time. The experts also told them that it was possible that as the testing was not able to cover the entire surface of the items it was possible there were loose fibres currently remaining there.
Given this risk, as the applicants had not been able to afford to replace some of these items they had either simply 'bagged them up' and stored them or sought to cover them.
Swimming pool
The applicants gave evidence that it was necessary to remove the water from the swimming pool and the filtration system even though it had not been tested as Mr Ranford knew contaminated water had entered the swimming pool when he washed down other contaminated items either near or next to it.
The applicants obtained quotes for the works required for complaint items 1.1, 1.2, 1.3, 3, 4 and 6.1 which are plumbing or roofing items. These quotes are in Exhibit 1. Ms Roberts gave evidence that the diagram at page 106 of Exhibit 1 was the diagram referred to in the BRO.
The applicants also obtained quotes for complaint item 5 being relevantly the removal of all asbestos contamination caused by the respondents' activities.
The applicants gave uncontested oral evidence that the no work pursuant to the BRO has been either commenced or completed by the respondents.
The respondents have not disputed at any time that they have not carried out any of the remedial work.
Analysis of the evidence and findings
The Tribunal found the applicants to be credible, reliable and compelling witnesses.
The Tribunal is satisfied that none of the works required by the BRO have been complied with and it should exercise its discretion and revoke the BRO and make an order that the respondents pay a sum of money to the applicants as compensation for the failure to comply.
Complaint items 1.1, 1.2, 1.3, 3, 4 and 6.1 - costs
The wording of the work required for the remedial work in respect of complaint items 1.1, 1.2, 1.3, 3, 4 and 6.1 is relatively straight forward.
In respect of complaint items 1.1, 1.2, 1.3, 3, 4 and 6.1 the applicants are seeking the payment of $4,445.21. In support of this are two quotes. The applicants are seeking payment of the lower of the two quotes which appears at page 125 of Exhibit 1.
The Tribunal is satisfied that $4,445.21 is the reasonable cost for carrying out these works.
Complaint item 5 -costs
In an application under s 51 of the BSCRA Act (a conversion order) it is not for the Tribunal to enquire in to the correctness of the decision of the Building Commission to issue the order. If either of the parties wishes to challenge the correctness of the decision he or she must seek a review of the decision.
In these particular circumstances however the Tribunal considers the BRO is not clear as to its intent and it is therefore necessary to consider what is included in the remedial work the BRO requires in respect of complaint 5.
Without understanding what the BRO requires the respondents to do, the Tribunal cannot determine if the respondents have complied with the BRO or in this instance what is the cost to the applicants of remedying the building service or to compensate the applicants for the respondents' failure to carry out the required works.
Included in the documents the Tribunal received from the Building Commission is a memo by an authorised investigator recommending the complaint be referred to the Tribunal. The reason given in that memo for the recommendation of the transfer to the Tribunal is relevantly:
On 15 August 2019, Ms Roberts advised by email, that Ms Roberts and Mr Bringham may have (unintentionally) caused further asbestos contamination to the property, by walking through the house with the asbestos dust on their shoes 'multiple times'.
The PTO indicated that it may be difficult for BE to assess evidence in relation to item five (asbestos contamination).
By reason of the above and the complexity in assessing the costs associated with item five, it is recommended that an application to the SAT under section 55 be made.
Further in the comments section of the memo is the following:
Agree with referral to SAT to allow for accurate assessment of costs.
The Tribunal is satisfied that the Building Commission included in respect of complaint item 5 all the reasonable costs associated with the removal of contaminated items and their replacement even though this may not be clearly expressed.
The applicants provided costings from SLH Industries for decontamination of the outdoor areas including the removal of asbestos items and cleaning of the areas affected. These included the removal of soil, grass vegetation, cleaning of the back garden area around the shed, the shed roof and walls to a total amount of $35,937. This costing also included the costs of removing the water from the swimming pool and the removal of its filtration system.
The Tribunal accepts the evidence of Mr Ranford that he saw contaminated water entering the swimming pool and on that basis accepts that the water is contaminated and needs to be removed even though it has not been tested. The Tribunal notes that no claim is made by the applicants for a new filtration system.
The Prensa report also recommends follow-up testing at a cost of $2,750 which the Tribunal has no reason to not accept as a reasonable cost.
The applicants have provided quotes for the removal and replacement of soil and lawn also affected. The lower of these costs is $2035. The Tribunal accepts this as a reasonable cost.
The Prensa report recommends the replacement of the insulation in the roof cavity. The Tribunal accepts this as appropriate and the reasonable replacement cost is $1,039.
The applicants' claim includes the removal and replacement of a number of household items and furniture.
The Tribunal is persuaded that the applicants witnessed the items listed below as being subjected to contamination.
The Tribunal is persuaded that porous items such as carpets, blinds and curtains should be removed and replaced as contaminated items.
The Tribunal is not persuaded that it should allow an amount for the costs of cleaning the property by Mr Ranford or the cost of cleaning products he used. The Tribunal does not doubt that cleaning would have taken considerable time or that it was completed by Mr Ranford. However the Tribunal is not satisfied that the cost of the applicants' time and the products they used in cleaning the property is properly included in the BRO.
The evidence the Tribunal has is that Mr Ranford cleaned the property shortly after the applicants found the contamination and therefore before the making of the BRO. This application is for the compensation for the respondents not carrying out the work ordered by the BRO.
The Tribunal finds the reasonable cost of replacing the following items is:
•curtains and blinds - $2,547.99;
•air-conditioner - $2,575 (we note that a quote was also provided without installation but the Tribunal considers it reasonable to include the costs of installation);
•washing machine - $799 (the lesser of the two quotes);
•vacuum cleaner - $479 (oral evidence was given which the Tribunal accepts as to why this is the most reasonable cost to replace the vacuum cleaner the applicants had to dispose of);
•outdoor furniture - $2,902 (again oral evidence was given which the Tribunal accepts as to why the Tribunal should accept this as a reasonable cost);
•carpets throughout the house - $2,295;
•floor rug - $699;
•lounge suit - $3,699;
•outdoor mats - $70.46;
•broom outdoor -$34.95;
•broom indoor - $28;
•lawn mower - $399;
•petrol blower - $189;
•line trimmer - $189; and
•various cleaning products/cleaners - $517.20.
The BRO required the respondents to pay the costs of the Prensa report totalling $1,452 and that of Mr Machell, the building inspector, $1,875 and these have not been paid.
Regrettably the BRO did not include the cost the applicants incurred in the testing carried out by ARL Asbestos. For these reasons the Tribunal could not allow the costs of cleaning by Mr Ranford, and it cannot include the costs of ARL Asbestos testing.
In summary the Tribunal finds and is satisfied the reasonable costs in respect of complaint items 1.1, 1.2, 1.3, 3, 4 and 6.1 is $4,445.21. The reasonable costs associated with and included in complaint item 5 is $62,511.
Order
1.Pursuant to s 51(3) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA):
(a)Building Remedy Order No. 100 of 2019 is revoked; and
(b)pursuant to s 36(1)(b) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), the respondent is to pay the applicants the sum of $66,956.81 within 14 days of the date of this order.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS P LE MIERE, MEMBER
23 OCTOBER 2019
0
0
1