ROBINSON and TESIP CONSTRUCTIONS PTY LTD - [2020] WASAT 78

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   ROBINSON and TESIP CONSTRUCTIONS PTY LTD [2020] WASAT 78
MEMBER:   MS R PETRUCCI, MEMBER
MR W GREGORY, SESSIONAL MEMBER

HEARD:   18 JUNE 2020
DELIVERED          :   22 JULY 2020
FILE NO/S:   CC 1251 of 2019
BETWEEN:   FRANCIS ROBINSON
First Applicant
LEEANN BELL
Second Applicant
AND
TESIP CONSTRUCTIONS PTY LTD
Respondent

Catchwords:

Building Services (Complaint Resolution and Administration) Act 2011 (WA) - Building service - Extension/addition to existing home - Whether building service not carried out in a proper and proficient manner or is faulty or unsatisfactory - Turns on own facts

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s3, s 5(1), s 6(1), s 9(1), s 10, s 11, s 11(1), s 36, s 38, s 38(1), s 38(1)(b)
Building Services (Complaint Resolution and Administration) Regulations 2011 (WA), reg 5
State Administrative Tribunal Act 2004 (WA), s 46(2)

Result:

Application partly successful

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):

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

These proceedings concern the referral of complaint number C16113 by a delegate of the Building Commissioner (Building Commissioner) to the Tribunal under s 11 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) on 16 August 2019. The reasons given by the BuildingCommissioner for referring the complaint were stated asfollows:
•Due to the nature of the complaint items, the parties have been provided many opportunities to provide evidence. This included having a Building and Energy building inspection and directions being given as to the type of evidence required;
•The evidence supplied by both parties has not been specifically supportive of the complaint; and
•The matter is complex and the parties should be provided a final opportunity to present their evidence in an appropriate forum.
On 13 March 2013, Ms Leeann Bell (the owner) and her motherin-law Ms Francis Robinson (the occupier) entered into a contract with Tesip Constructions Pty Ltd (the respondent or builder) to build an extension/addition to the existing single level brick and tile residence at 11 Leontes Way Coolbellup (the property) using Tesip wall panels for $93,286. On 10 October 2013 the City of Cockburn issued a building permit to the builder to carry out additions to the existing residence at the property. The extension is now the occupier's home.
On 1 June 2018 Ms Robinson and Ms Bell (together the applicants) lodged a complaint with the Building Commissioner alleging that the building service carried out by the builder at the property was not carried out in a proper and proficient manner or was faulty or unsatisfactory in respect of the following six items (complaints):
•Cracking external walls;
•Gutter gap Roof enters all the way into the gutters leaving little room for water to drain (water just gushes out);
•Roof structure When new roof was getting installed it did not match existing roof, very bad workmanship has been done to mask problem and there are missing metal supports for roof metal tiles;
•Roof tiling 'metal' Roof tiles are not secured at back of house;
•Roof leaking Roof leaks in several places and rotten gyprock; and
•Eaves New eaves installed do not match the width of the preexisting eaves as a result water gushes into the door when raining.
The Building Commissioner referred the matter to a building inspector, following which a proposed building remedy order was issued to the parties on 11 February 2019. The building inspector recommended that all but one of the complaints be dismissed due to a lack of evidence. Following this, the applicants requested the Building Commissioner undertake an inspection of the complaints on the grounds of their financial hardship. On 14 May 2019, the Building Commissioner granted the applicants' request and an inspection on site was undertaken on 22 May 2019 with the builder in attendance.
On 14 June 2019 the building inspector provided his report to the Building Commissioner. The building inspector revised his report on 25 June 2019 and again on 24 July 2019. On 5 August 2019 the Building Commissioner advised the parties that the matter would be referred to the Tribunal. The referral was made on 16 August 2019 (as set out earlier).
The builder is no longer a registered building contractor but was so registered at the time when the regulated building service, the subject of these proceedings, was performed.

The hearing and evidence before the Tribunal

Following a directions hearing on 3 September 2019, the Tribunal referred the matter to mediation. The parties were not able to resolve their dispute and the matter was referred to a further directions hearing at which time the Tribunal made its usual orders programming the matter to a final hearing. The order included requiring the applicants to complete a Scott Schedule setting out each item of complaint, the scope of works the applicants say are necessary to remedy each item of complaint, and the amount claimed in respect of each complaint and for the builder to provide its response to each item of complaint stating whether or not it admitted or denied the building work was faulty, unsatisfactory or has not been carried out in a proper or proficient manner, and if denied, the basis for such denial, whether it admitted the scope of works alleged to be necessary by the applicants in respect of each complaint items and if the scope of work is not admitted to state the works which the builder contends is necessary. Further, the parties were ordered that if they proposed to give evidence or call any witnesses, including experts, to give evidence at the hearing, they must file with the Tribunal and give a copy to the other party a signed statement of each witness' evidence. The final hearing was set down for one day on 18 June 2020.
The parties confirmed receiving the hearing book prepared by the Tribunal and agreed for it to be tendered into evidence in its entirety (Exhibit 1). The hearing book included the following documents and materials:
•orders made by the Tribunal;
•respondent's documents which include the response to the applicant's Scott Schedule and the witness statement of Mr David William Brown dated 26 May 2020;
•applicant's documents which include the Scott Schedule and reports from Mr Daniel Rose and Mr Nathaniel Harrison and a witness statement of Mr Harrison dated 15 June 2020; and
•Building Commissioner's file.
Ms Bell attended the hearing by telephone from the property. She advised the Tribunal that the other applicant, Ms Robinson, was too unwell to attend the hearing. Ms Bell called on Mr Harrison and Mr Rose to give evidence on behalf of the applicants. Mr Harrison was at the property with Ms Bell during the hearing and gave his evidence by telephone.
The builder was represented by its sole director, Mr John Radaich, who also attended the hearing by telephone. He called on Mr David William Brown to give evidence on behalf of the builder. Mr Brown was with Mr Radaich during the hearing and gave his evidence by telephone.
Mr Harrison of Before Building Pty Ltd inspected the property on 11 November 2019 and prepared a building condition report. In his report, Mr Harrison noted that he had not been provided the structural plans. Mr Harrison inspected the property again on 18 May 2020 along with Mr Radaich, Mr Brown and Mr Rose. Mr Harrison stated that he has about four years' experience with Structural Insulated Panels (SIPs), however, he has not himself constructed anything using SIP panels. In his report, Mr Harrison concluded that the extension had not been built in compliance with the supplied plans or to a tradesmanlike finish. Finally, in his witness statement of 15 June 2020, Mr Harrison stated that the only rectification suitable to address all of the applicants' complaints was a complete rebuild as it would be the most cost effective.
Mr Rose is the structural manager for Engenuity Engineering. He is a qualified engineer (civil and construction). Mr Rose stated that he is the certifier for three or four different SIPs. Mr Rose inspected the property on 18 May 2020. Along with Mr Harrison, Mr Radaich and Mr Brown. Mr Rose recommended further investigation in regards to the cracking walls due to suspected lack of compliance with Tesip's jointing detail. In regards to the roof structure Mr Rose stated he did not view evidence of tie downs and noted that Mr Brown verbally stated at the inspection that works had not been done. Mr Rose noted that the drawings he viewed for the building application had minimal notation on structural allowances including loading assumptions and material grades. In regards to the eaves, Mr Rose did not consider there to be any structural reason that a solution within the truss design could not have been found to enable the architectural intent to be followed.
Mr Brown is a self-employed roofing contractor with over 30 years' experience in all facets of roofing and associated construction. Mr Brown was at the relevant time a shareholder of the builder. During 2013 and 2014 Mr Brown was the sales manager and site organiser for the builder in respect of the extension at the property. In his witness statement, dated 26 May 2020, Mr Brown stated that the existing house's eaves are 720 millimetre wide but the plans incorrectly showed 600 millimetre wide eaves for the existing house. He stated that following discussion with Ms Bell's then partner, Mr Rod Picken, the applicants agreed for the narrower eaves to be installed. In respect of the external wall panels, Mr Brown stated that the plans called for the owner to provide a painted render finish. He said the builder provided a basic flushing of the joints to the external wall panels and that an accredited render applicator/painter would prepare a full joint flushing and apply the acrylic render at the applicants' cost outside the contract. Finally, Mr Brown said that he completed the mid roof connection between the new pressed metal tiles and the existing cement tiles per the plans. Mr Brown said Ms Bell was not happy with the aesthetics of the new metal tile roof abutting the old cement tile roof. Therefore in an attempt to satisfy Ms Bell, he completed the new roofing to as far the as the rear hipline at no cost to the applicants.
Following the hearing on 18 June 2020, the Tribunal reserved its decision.

Summary of each party's position

The applicants' position in summary is that they have no faith in the builder and Mr Brown. They want another builder to do the repair work. In her closing statement to the Tribunal, Ms Bell stated that the eaves on the extension need to match and be of the same length as the eaves on the original home. Further, the entire roof needs to be pitched to where it was on the original home and the external joints on the wall panels need to be flushed in the same way that the internal joints were done.
The builder's position in summary is that the applicants' application be dismissed as there are no structural issues with the extension/addition to the existing house. If there are any issues with the original house, the builder asserted that has nothing to do with the builder. In any event, if the complaints amount to anything, Mr Radaich said they are nothing more than aesthetics. Mr Radaich stated in his closing statement to the Tribunal that the applicants were on a very tight budget which the builder accommodated including providing extra works at no cost to the applicants.

The issues

The issues to be determined by the Tribunal are:
1)Did the builder carry out the building service at the property in a manner that was not proper and proficient or that was faulty or unsatisfactory?
2)If the answer is 'yes', what building remedy order should the Tribunal make?

Relevant law

A person may make a complaint within certain strict 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.
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). In this case, the Building Commissioner referred the complaint to the Tribunal for determination.
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 to pay 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). Finally, s 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.

Consideration by the Tribunal

Issue 1 - Did the builder carry out the building service at the property in a manner that was not proper and proficient or that was faulty or unsatisfactory?

The following sets out the position of each party for each of the complaints followed by the Tribunal's findings.

Complaint item 1 – Cracking external wall

It is common ground that the building works were undertaken in the 2013/14 financial year and that painting of the external wall panels did not form part of the contract.
Mr Harrison for the applicants explained that due to the construction of the Tesip panels which have an expanded polystyrene (EPS) core with timber lining on both sides, the panel joints will continue to move and cause cracking. He said the finish of the wall panel joints was not satisfactory and therefore needs to be rectified. He referred the Tribunal to the photographs at pages 262 to 264 of Exhibit 1 showing cracking on the external wall panels. Ms Bell explained the photos were taken in late 2018 after the job had been completed and after a normal exterior paint had been applied. Ms Bell was adamant that the cracks on the external panels had first appeared in 2015 and that all the walls have cracking. Mr Harrison said if the joints were correctly flushed with the correct gauze tape, no cracking would be evident. He said paint does not stop the cracking. Mr Harrison acknowledged there was no cracking to the internal wall panels.
Ms Bell gave evidence that she had no idea that the builder was not going to finish the external walls. After the cracking on the external wall was brought to the attention of the builder, Ms Bell said that Mr Radaich sanded and re-sanded the external walls joints over a period of days but that did not fix the cracks. At the hearing, Ms Bell questioned why Mr Radaich would do this if that was not part of the contract. Mr Radaich's reply was that he wanted the external wall to look neat.
Mr Rose said based on his experience with SIP panels, the cracking on the external walls is likely to have been caused by a lack of flushing, taping and jointing. However, he said in this case, further investigation is required. Mr Rose noted that while he was not able to view most of the splice locations, there appeared to be a lack of compliance with the Tesip jointing detail because of the lack of marine ply biscuit pieces and fixing screws.
Mr Radaich stated in summary:
•all external walls have cracking;
•the building plans and contract show a raw finish excluding painting;
•the wall finish on Drawing A01/A (page 27 of Exhibit 1) is indicated as painted render (page 29 of Exhibit 1); and
•the panels were not paint rendered by the owners as required by the plans. An accredited render applicator would have flushed the external joints to the required standard prior to the paint rendering.
Mr Brown explained that he had applied full joint flushing to the internal wall panels prior to painting and that there was no evidence of cracking on the internal walls. However, the external walls cracked, according to Mr Brown, because the applicants applied an acrylic paint rather than a painted render finish. Mr Brown conceded at hearing that the external wall panels only received a basic flushing of the joints using an external jointing compound over the screws and not the required full flushing of the joints. He was adamant that the applicants agreed to a 'raw finish', without external flushing of the external wall panel, due to their limited financial resources. However, at hearing, Mr Brown conceded that the contract did not expressly exclude the full flushing of the joints on the external wall panels. Mr Brown accepted that movement causes cracks. He said if the joints on the external wall panels were fully flushed and rendered there would not be any cracks as there are no cracks on the internal panel walls.
Mr Radaich accepted that the remedy required was to fully flush the joints of the external wall panels and to apply a render finish.
The Tribunal finds the joints of the external wall panels were not fully flushed to the required Tesip jointing detail in that Mr Brown conceded that only a basic flush was completed and that the contract did not expressly exclude the full flushing of the joints on the external wall panels. Therefore, in the Tribunal's view the work carried out on the external joints of the external wall panels of the extension was not proper and proficient and unsatisfactory and is to be remedied.
The Tribunal will return to the issue of what building remedy order the Tribunal should make in regards to complaint item 1 later in these reasons.

Complaint item 2 Gutter gap - gap between roof, gutter is too narrow and gutters overflow

At hearing Mr Harrison for the applicants stated that Ms Bell showed him a video taken on 6 June 2019 showing that the eave gutters overflow. However, he stated that he could not understand how the rain could come over the top of the high fronted gutter. He noted the carport gutter was even higher.
Mr Rose stated there were no structural issues.
The builder stated that the water gushing out into the rear side door is from the roof of the carport (an existing structure on the property and not part of the contract) and not from the new gutter. The builder said the gutter on the carport sagged and was not level, had no gutter clips and was unsecured at its end support with the consequence it sagged during rainfall and overflowed into the doorway of the house. Further, the builder stated that Drawing A03 (page 25 of Exhibit 1) indicated a rear flashing to the new gutters and there is no evidence of gutter overflow or the eaves staining since installation.

The Tribunal notes that the applicants did not seek to submit the video of 6 June 2019 into evidence. In any event, the Tribunal agrees with Mr Rose that there are no structural issues with where the roof enters into the gutters. High fronted gutters prevent rain overflowing over the front of the gutter. If there is leaf litter in gutters, that is a maintenance issue and is the responsibility of the applicants.
The Tribunal dismisses complaint item 2.

Complaint items 3, 4 and 6 - Roof structure missing metal supports for roof metal tiles, roof tiling 'metal' roof tiles are not secured at back of house and new eaves installed do not match the width of the pre-existing eaves

Complaint items 3, 4 and 6 were dealt with together as they are related complaints.
The applicants complain that a section of the roof deviated from the pitch of both the new and pre-existing parts of the roof. They say the extension from the line of the pre-existing ridge up the new ridge was executed poorly by not following lines/pitch that would provide the finished work with uniformly continuous planes. Further, the applicants complained that the new eaves do not match the existing eaves.
The builder stated that Drawing A5.02 Revision A (page 24 of Exhibit 1) details the midroof connection between the new pressed metal tiles and the existing cement tiles. According to Mr Brown, the roofing was completed as per the structural plan and is supported by the aerial photograph taken in March 2014 (page 30 of Exhibit 1). Further, Mr Brown submitted:
•Drawing A03 (page 25 of Exhibit 1) called for the new metal tiles, gutter and fascia to relate to the existing ones. It is not possible to exactly colour match a new roof with a 50+ year old porous and unmaintained cement tile roof;
•the building works were completed on 30 May 2014 and the aerial photograph taken in August 2014 (page 31 of Exhibit 1) shows the roof unaltered; and
•Ms Bell was not happy with the aesthetics of the new roof against the old roof and wanted the roof extended to the rest of the house at no cost to her. The builder agreed in good faith to supply enough material and he completed the new roofing to the rear hipline. The roof matching is an aesthetics issue between the applicants.
Mr Brown explained that the original 'Peter Pan' cement roof tiles were over 50 years old, were not maintained and had become very porous allowing ongoing moisture seepage into the roof void over many years. Further, he said that it is not possible to exactly colour match new pressed metal tiles with the existing old and unmaintained cement roof tiles. Mr Brown said he was not told about the roof/ceiling fire which caused warping of the existing Jarrah roof framing timbers causing sagging and roof slumping. Mr Brown said it was difficult for him to tie down the new extended sheeting and metal hip capping to the existing timber rafter levels when the new roof was straightened up. Notwithstanding the poor condition of the roofing support structure at the rear hipline, Mr Brown stated that he offered to install further filler along the butting hip capping with the rear hipline and finish it off to improve the unevenness of the joint caused by the warped roofing timbers.
Mr Rose stated that he did not observe any fire damage in the roof. Further, he noted that he has not seen the structural engineering drawings with the consequence he has not been able to review what has been done. Mr Rose stated that he was not able to do calculations due to lack of sufficient documentation so was not able to say if the roof works or does not. Mr Rose raised concerns regarding the trusses (pages 63 and 64 of Exhibit 1).
Mr Radaich stated that there are no details of how the joints were put together other than the drawings with the building permit. Mr Radaich said he did the necessary calculations for the extension but that he had not provided them to anyone for review. Mr Radaich said he assessed the connection details (pages 63 and 64 of Exhibit 1) and found them to be adequate although acknowledged that they were messy. Mr Radaich stated that he had not provided a structural certificate. Finally, Mr Radaich said the tin roof supplier did not provide any documentation setting out fixing details.
In regards to the roof structure, the Tribunal finds that the applicants failed to tell the builder of the roof/ceiling fire which caused deterioration and warping of the existing Jarrah roof framing timbers and thereby creating the poor condition which caused difficulties for Mr Brown in trying to tie down the new extended roof sheeting and metal hip capping to the existing timber rafter levels when the new roof was straightened up. Ms Bell was not happy with the aesthetic of the new metal tile roof abutting the old cement tile roof; she wanted the roof extended to the rest of the house at no cost to her. Mr Radaich said he acted as the supplier of the materials for the rear extension and Mr Brown undertook the labour but that it was outside the contract.
The Tribunal finds that the builder and Mr Brown undertook further work, which does not appear to be formalised in writing but was agreed orally by the parties, to complete the new roof to the rear hipline. The Tribunal concludes that there is insufficient evidence to conclude one way or the other if the work on the roof was carried out in a proper or proficient manner or was unsatisfactory or faulty. This is not a satisfactory positon. The applicants were put on notice of the need to provide evidence including having had a building inspection and directions given as to the type of evidence required (refer to [1] above). The applicants failed to present evidence to support and substantiate their complaint. Therefore the Tribunal declines to make any order in respect of complaint items 3 and 4.
Turning to the width of the eaves, Mr Rose stated that the architectural drawings reflect a matching eave line to the western elevation whereby the roof steps between existing and new. Mr Rose did not consider there to be any structural reason that a solution within the truss design could not have been found to enable architectural intent to be followed.
The builder says the approved plans show 600 millimetre wide eaves on the front extension. According to Mr Brown, the applicants understood and accepted that the new eaves would not be as wide as the old eaves (720 millimetres wide). The builder said the differing eave widths was an error by the draughtsman. If wider eaves were required, new plans would have had to be designed and approved which would have meant a delay and extra costs which the applicants did not want to pay for.
The Tribunal finds that the architectural drawings reflect a matching eave line whereby the roof steps between the original home and the extension. Even though Mr Brown stated that the applicants accepted that the new eaves would not be as wide as the old eaves, as the drafting formed part of the builder's works, the accuracy of the plan falls to the builder which required the eaves to be in line. The Tribunal accepts Mr Rose's statement that there is no structural reason that a solution within the truss design could not have been found to enable the architectural intent to be followed. The Tribunal therefore concludes that the eaves on the extension are unsatisfactory and are to be remedied.
In summary, the Tribunal dismisses complaint items 3 and 4 and finds complaint item 6 is made out. The Tribunal will return to the issue of what building remedy order the Tribunal should make in regards to complaint item 6 later in these reasons.

Complaint item 5 - Roof leaking roof leaks in multiple areas and rotten gyprock

At hearing Ms Bell explained that her son had inspected the roof space where he observed that water had entered in many places.
Mr Rose stated that there was no structural issue.
The builder said there is no evidence in the new ceiling or eaves of leaking. Mr Brown stated he water pressure tested the new roof and eaves on completion of the works and there were no leaks. The builder explained the roof is lined with a waterproof metal sheeting fixed to a double waterproofed insulated panel roof lining. Finally, the builder noted there is evidence of leaks in the original house due to seepage through the old porous cement roof tiles, however that had nothing to do with the builder's work on the extension.
The Tribunal finds there is no evidence of the roof leaking in respect of the extension, that is, in respect of the building works. In respect of the original home, even though Ms Bell asserted there is leaking, no detailed description, location or evidence of what caused the leaking was provided to support her assertion. The Tribunal dismisses complaint item 5.

Conclusion on the complaints

In summary, the Tribunal concludes that building works, the subject of complaint items 1 and 6 were not carried out in a proper and proficient manner or was faulty or unsatisfactory. That work is to be remedied. The Tribunal dismissed the other complaint items (2, 3, 4 and 5).
The Tribunal turns, next, to determine if it should make a building remedy order pursuant to s 36(1)(a), (b) or (c) of the BSCRA Act.

Issue 2 - Should the Tribunal make a building remedy order, and if 'yes' what is an appropriate order?

In this case the builder is no longer a registered building contractor. It is therefore not appropriate for the Tribunal to require the builder to attend to the remedial works for that reason. Consequently, in order for the Tribunal to consider making a monetary order, it will be necessary for the parties to provide costings for the scope of works to remedy the building works, the subject of complaint items 1 and 6.
For the reasons set out above, the Tribunal will make the following orders.

Orders

The Tribunal orders:
1.Pursuant to s 38(1)(b) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) the Tribunal declines to make an order for complaint items 2, 3, 4 and 5 and they are dismissed pursuant to s 46(2) of the State Administrative Tribunal Act 2004 (WA).
2.The matter is adjourned to a further directions hearing at 9 am on 4 August 2020 at 565 Hay Street, Perth, Western Australia in order to program the matter to a final hearing to determine the cost of the work required to remedy complaint items 1 and 6.
3.Subject to further order, the parties are to attend the directions hearing by telephone on the telephone numbers provided to the Tribunal in writing at least seven business days prior to the directions hearing.

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