Robinson and Tesip Constructions Pty Ltd [No 2]

[2020] WASAT 137

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)

CITATION:   ROBINSON and TESIP CONSTRUCTIONS PTY LTD [No 2] [2020] WASAT 137

MEMBER:   MS R PETRUCCI, MEMBER

MR W GREGORY, SESSIONAL MEMBER

HEARD:   21 SEPTEMBER 2020

DELIVERED          :   3 NOVEMBER 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 complaint - Form of building remedy order - Monetary order sought - Turns on own facts

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 11, s 36(1), s 36(1)(a), s 36(1)(b), s 36(1)(c), s 36(2)

Result:

Application allowed in part

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):

Robinson and Tesip Constructions Pty Ltd [2020] WASAT 78

Trengove and Celebration Nominees Pty Ltd [2012] WASAT 65

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1. On 22 July 2020, the Tribunal determined a building dispute referred by the Building Commissioner under s 11 of the Building Services (Complaint Resolution and Administration Act) 2011 (WA) (BSCRA Act). 

2. The Tribunal found the respondent, Tesip Constructions Pty Ltd (the builder) was responsible for remedying building service complaint item 1 (cracking external walls) and building service complaint item 6 (new eaves installed do not match the width of the pre-existing eaves):  see Robinson and Tesip Constructions Pty Ltd [2020] WASAT 78 (the first decision).

3. Following the handing down of the first decision, the Tribunal held a directions hearing on 4 August 2020, where Ms Leeann Bell and Ms Francis Robinson (the applicants) and the builder were ordered to file all documents on which they wish to rely including quotations and other documents relevant to the costings to be determined by the Tribunal for building service complaint items 1 and 6.  The parties were also ordered to organise for the contractors whom they wished to call to give costings evidence in respect of complaint items 1 and 6 to be available by telephone for the hearing on 21 September 2020.

4. The matter was heard on 21 September 2020, following which the Tribunal reserved its decision.

The hearing and evidence

1. Ms Bell attended the hearing by telephone from 11 Leontes Way Coolbellup (the property).  She advised the Tribunal that the other applicant, Ms Robinson, was too unwell to attend the hearing.  Ms Bell was supported by Ms Tiffany Beattie.

2. The builder was represented by its sole director, Mr John Radaich, who attended the hearing by telephone.  Mr David William Brown of DAT Contracting also attended the hearing by telephone with Mr Radaich.

3. Ms Bell called on Mr Nathaniel Harrison to explain the costings, including the scope of works, provided by Sandalwood Constructions to remedy building service complaint items 1 and 6. 

4. We note that Mr Harrison inspected the property on 11 November 2019 and prepared a building condition report for the applicants wherein he stated that he has about four years' experience with Structural Insulated Panels (SIPs), however, he has not himself constructed anything with SIPs.

5. Ms Bell also called on Mr Enzo Sansone of GE Plastering to explain the costings, including the scope of works, to remedy complaint item 1.

6. Finally, Ms Bell sought to call Mr Des Milne of Air Roofing Co. Pty Ltd to explain the costings, including the scope of works, to remedy complaint items 1 and 6.  The Tribunal telephoned Mr Milne during the hearing on 21 September 2020 on several occasions, however, Mr Milne was not available.  In accordance with the direction given at the directions hearing on 4 August 2020, that the Tribunal would not consider any costings of a contractor who wass not available at the hearing, the Tribunal did not further consider the costings provided by Air Roofing Co. Pty Ltd.

7. The builder called upon Mr Adam Toey of 2E's Solid Plaster to explain the costings, including the scope of works, to remedy complaint item 1.

8. Mr Toey explained that he is the proprietor of 2E's Solid Plaster and that he has a Certificate 3 in solid plastering, and that he is a Rockcote Natural Materials artisan and a Novacolor 'wall2floor' approved applicator.  Further, Mr Toey said that he has 15 years' experience with external and internal wall finishes, including SIPs which he worked on about seven or eight years ago.

9. Finally, the builder called upon Mr Brown of DAT Contracting to explain the costings, including the scope of works to remedy complaint item 6.

10. We note that Mr Brown was at the relevant time a shareholder of the builder, the sales manager and site organiser for the building works at the property.  Mr Brown explained that he is a self-employed roofing contractor with over 30 years' experience in all facets of roofing and associated construction.  Finally, Mr Brown said that he is not a registered builder.

11. In accordance with the Tribunal's usual practice in matters of this nature, the hearing was conducted on the basis that all of the documents filed with the Tribunal would be regarded as being in evidence, subject to any objection.  There was no objection to the admission of any of the documents into evidence.  During the hearing, the Tribunal marked the following documents, to which the Tribunal has had regard for the purpose of determining the issue as set out below in next paragraph, as exhibits:

    •applicants' bundle of documents with contractor quotes (Exhibit 1); and

    •builder's bundle of documents with contractor quotes (Exhibit 2).

Issue

1. The issue to be determined by the Tribunal is what is the appropriate form of the building remedy order (BRO) (if any) in respect of complaint item 1 and complaint item 6?

Summary of each party's position

1. The applicants' position is that the builder and Mr Brown 'destroyed [their] house' and that they 'do not want them back on the property to do more damage to [their] house'.  Further, the applicants stated they are unhappy with the roof and they do not accept Mr Brown's proposed scope of work for the eaves.[1]  Ms Bell said the reason why they are in the predicament that they are in is because Mr Brown did all the work on the house and that he does not have a building licence.

   [1] ts 8, 21 September 2020.

2. The builder's position in that the remedial works can be completed by Mr Brown and that the applicants were on a very tight budget which they accommodated including providing extra works at no cost to the applicants.

Relevant law

1. A BRO 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).

2. 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

Complaint item 1 ­ cracking external wall

1. The applicants submitted the following costings, including the scope of works, from Sandalwood Constructions in respect of complaint item 1:[2]  

   [2] Exhibit 1.

   1.SCOPE OF WORKS

   Depending on the engineer's findings our quote to the remedial works as follows:

   •The works would only take place after sign off by an engineer

   •Existing walls to remain

   •Supply and install Cladding James Hardie type product with fixing methods approved by Engineer or as per Manufacturers Specs

   •AcraTex Texture Coat Finish Colour TBA

   •Plumbing and Electrical disconnect and reinstate (as required)

   •Remove and disposal of all work-related rubbish.  Site clean on completion

   2.MISCELLANEOUS

   •All machine hire ie scaffold, crane hire, handrails as required

   •New working drawings (Walls) and Structural Engineering Plans (Walls) if required

   •All remediation works are subject to site meeting prior to commenc[e]ment

   3.ADDITIONAL NOTES & EXCLUSIONS

   •Excludes any other works that are not related to the above scope of works

   4.CONTRACT & PAYMENT TERMS

   …

   TOTAL AMOUNT     $44,000.00 _{inc gst}

2. Mr Harrison explained that he is not employed by Sandalwood Constructions, however he understands and can answer questions about the costings including the scope of works put forward by Sandalwood Constructions.  Mr Harrison said the costings (as set out in the immediately preceding paragraph) provide for horizontal battens to be fixed to the SIPs by 25 millimetre gauge screws on top of which the blue board is to be placed vertically and then all the joints are to be flushed and finally a texture coat over the top is to be applied.

3. Further, the applicants submitted the following costings, including the scope of works, from Mr Sansone of GE Plastering for complaint item 1:[3]

   [3] Ibid.

   TEXTURE COAT FOR WALLS BEING BLUE BOARD

   2 COATS $95.00 PER METER

   IT IS APPROXIMATELY 80 METERS

   $7600.00 PLUS 10% GST

   THIS BLUE BOARD QUOTE IS GARANTEED (sic)

   TEXTURE COAT ON EXISTING WALLS

   JOINTS TO BE RE OPENED AND RE TAPED

   2 COATS $105.00 PER METER

   $8 400.00 PLUS 10% GST

   THIS IS NOT GARANTEED (sic) THAT JOINTS WILL NOT RE OPEN

4. Mr Sansone explained that his costings are limited to putting the texture coat (two coats) on and then sealing the joints but that did not include the application of the blue board.  Further, Mr Sansone stated that his quote includes the texture coating for the entire external wall.  Finally, Mr Sansone stated that even if the entire external wall is texture coated, there is the possibility that the texture coat will not stick to the marine ply and come off.  Because of this, Mr Sansone concluded that it is preferable to use the blue board.

5. The builder submitted the following costings including the scope of works from Mr Toey of 2E's Solid Plaster for complaint item 1:[4]  

   Remove current materials to joins and prepare using wet on wet meshing system in preparation for a suitable acrylic render/texture system.  Inclusive of all materials approved for external use by chosen manufacturers systems guide (Dulux), replace external corner beads with mesh wing type. 

   Total A$1465.00

   Supply and apply acrylic base with 200mm trowelled mesh, 1 top coat of acrylic texture in choice of colour, including masking and covering of surfaces requiring protection.  $2,800

   Total A$4,265.00

   [4] Exhibit 2.

6. Mr Toey explained that about seven or eight years ago he completed jobs using the method described above.  Further, Mr Toey stated that he had no cause to go back to do any repairs.[5]  Mr Toey confirmed that his quote of $4,265 was for the entire external SIPs.[6]

   [5] ts 29, 21 September 2020.

   [6] ts 30, 21 September 2020.

7. In the first decision at [29] the Tribunal found that the joints in the external face of the SIPs were not fully flushed and not finished adequately (in accordance with the standard Tesip external joint detail).  We prefer the costings, including the scope of works, provided by 2E's Solid Plaster due to Mr Toey's qualifications, his experience in working with SIPs and that he has previously used the method as set out in his costings with good results.  Further, we are of the view that cladding of the entire external wall, as put forward by Sandalwood Constructions in its scope of works is not proportionate to the remedial work required for complaint item 1.

8. We will order the respondent to pay to the applicants, pursuant to s 36(1)(b) of the BSCRA Act the amount of $4,265, being the quote from 2E's Solid Plaster, in respect of complaint item 1.

Complaint item 6 ­ new eaves installed do not match the width of the pre­existing eaves

1. The applicants submitted the following costings, including the scope of works, from Sandalwood Constructions in respect of complaint item 6:[7]  

   [7] Exhibit 1.

   1.SCOPE OF WORKS

   Depending on the engineer's findings our quote to the remedial works as follows:

   •The works would only take place after sign off by an engineer

   •Remove all roof cladding (metal look tiles and old Peter Pan concrete tiles)

   •Remove roof structure (jarrah timber stick at rear and truss to front)

   •Install new wall plates to entire perimeter and re-pitch new stick roof for metal roof cover

   NB: Roof shape to match existing

   •Supply and install Colourbond Corrugated Roof Cover (Color to be advised)

   •Supply and install Permastop Building Blanket 55mm

   •All relevant flashings, flumes and fixtures as required

   •Supply and installation of new eaves

   •Painting of eaves (external flat white)

   •Plumbing and Electrical disconnect and reinstate (as required)

   •Remove and disposal of all work-related rubbish.  Site clean on completion

   2.MISCELLANEOUS

   •All machine hire ie scaffold, crane hire, handrails as required

   •New working drawings (roofing) and Structural Engineering Plans (Roof)

   3.ADDITIONAL NOTES & EXCLUSIONS

   •Excludes any other works that are not related to the above scope of works

   4.CONTRACT & PAYMENT TERMS

   …

   TOTAL AMOUNT     $93,000 _{inc gst}

2. The builder submitted the following three alternative costings including the scope of works from DAT Contracting in respect of complaint item 6:[8]  

   [8] Exhibit 2.

   1.Cutting back the existing rear eaves on both sides to match the approved plans.  The process would involve-

   •Removal of badly deteriorated timber fascia due to lack of maintenance.

   •String line existing roof rafters and remove as needed.

   •Remove gutter and down pipe.

   •[C]ut back old eave board[.]

   •[I]nstall a new pine fascia board and install existing gutters and down pipe.

   •Total quote = $600 for Option 1

   2.Widen the new eaves all round to match the old eaves.  This would require providing a secure metal extension to the existing truss beam together with a structural prop within the eaves.  This process would involve­

   •Remove house gutter[.]

   •Cut slots in the fascia to allow concealed brackets to slide through into a support beam inside roof.

   •Install a 100x100mm steel beam onto existing fascia and fix with steel fixings screws.

   •Install existing gutter and down pipe onto the outside of the 100x100mm beam[.]

   •Install a special flashing under existing tiles down into new gutter[.]

   •Total quote = $1,500 for Option 2

   3.Installing a canopy (polycarbonate) or awning patio (metal) over the slide door to shield where the new eaves meets the old eaves.  An option for this process would involve-

   •Installation of a 1200x1000mm polycarbonate canopy over doorway.

   •Total quote = $400 for Option 3

3. Mr Harrison explained that the Sandalwood Construction costings provided for the whole roof to be replaced.  In the Tribunal's opinion, this is more than required to remedy complaint item 6 (the new eaves are to match the width of the pre-existing eaves).  This is because in the first decision at [46], the Tribunal found that the architectural drawings reflected a matching eave line and that there was no structural reason that a solution within the truss design could not have been found to enable the architectural intent to be followed.  We could not consider the Sandalwood Constructions costings further because there was no breakdown of the costings for the items comprising the scope of works. 

4. In regards to costings, including the scope of works, provided by the builder from DAT Contracting, we find that option one which provides for the cutting back of the old eaves does not deal with the remedial work required for complaint item 6.  Similarly, in our view option three does not deal with the remedial work required.  We find that only option two is relevant.  Mr Brown stated while he had not had his option two certified by an engineer, he was confident that an engineer would certify the proposed scope of works based on his 30 years' experience in all facets of roofing installation.

5. We are satisfied that the scope of works as set out in option two submitted by DAT Contracting covers the remedial work required for complaint item 6. We will order the respondent to pay to the applicants, pursuant to s 36(1)(b) of the BSCRA Act the amount of $1,500, being the costings for option two provided by DAT Contracting, in respect of complaint item 6.

Conclusion

1. In the first decision at [54], the Tribunal noted that the builder is no longer a registered building contractor.  Further, the Tribunal stated that it was not appropriate for it to require the builder to attend to the remedial works.[9]  This was on the basis that that the Tribunal was satisfied that there is an irretrievable breakdown (in the sense as explained in Trengove and Celebration Nominees Pty Ltd [2012] WASAT 65 at [36]) in the relationship between the applicants and the builder and Mr Brown where the applicants would seek to stop the builder and Mr Brown coming on to their property as they do not trust the builder and Mr Brown. Further, the applicants are still very concerned that the builder and Mr Brown would do more damage if they were allowed to come back to the property to undertake any remedial works.

   [9] Ibid.

2. We are therefore of the view that in order to bring finality to the litigation between the applicants and the builder, a monetary order is appropriate in all of the circumstances of this case.

3. For the reasons set out above, the Tribunal will make the following order.

Order

The Tribunal orders:

1.Pursuant to s 36(1)(b) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) the respondent shall by 30 November 2020 pay to the applicants $5,765 in respect of building service complaint items 1 and 6.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MS R PETRUCCI, MEMBER

3 NOVEMBER 2020