Sanders and Gemmill Homes Pty Ltd
[2017] WASAT 41
•8 MARCH 2017
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)
CITATION: SANDERS and GEMMILL HOMES PTY LTD [2017] WASAT 41
MEMBER: MS C WALLACE (SENIOR MEMBER)
HEARD: 20 FEBRUARY 2017
DELIVERED : 8 MARCH 2017
FILE NO/S: CC 1205 of 2016
BETWEEN: GEOFFREY FRANK SANDERS
Applicant
AND
GEMMILL HOMES PTY LTD
Respondent
Catchwords:
Application for leave to review Criteria for granting leave Whether original decision wrong or attended with sufficient doubt Factors relevant in exercise of discretion when deciding appropriate building remedy order Whether remedial order or monetary order appropriate Whether substantial injustice suffered
Legislation:
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5(1), s 5(2), s 36, s 51, s 58
Home Building Contracts Act 1991 (WA), s 17
Result:
Application for leave partly granted
Summary of Tribunal's decision:
On 12 July 2016, the original Tribunal dismissed two complaints brought by the applicant owner against the respondent builder and found a third complaint of faulty workmanship to be successful. The applicant sought an order from the original Tribunal requiring work to be performed to remedy the faulty workmanship. The respondent submitted that due to a significant breakdown in the relationship between the parties that a monetary order was more appropriate. The original Tribunal accepted the submission made by the respondent in this regard and made a monetary order in favour of the applicant.
The applicant filed an application pursuant to s 58 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) seeking leave to review each of the orders made by the original Tribunal. The applicant bore the onus of establishing that the decision of the original Tribunal was wrong or attended with sufficient doubt and if left unreversed, would lead to a substantial injustice being suffered.
The Tribunal found that in dismissing two of the applicant's complaints, the original Tribunal had not erred and the decision was not attended with sufficient doubt to justify granting leave to review that decision. However, the Tribunal did find that the original Tribunal, in exercising its discretion to make a monetary order rather than a remedial order in favour of the applicant, failed to take into account relevant factors including: the owner's preference to elect a remedial order; the advantages to both parties afforded by a remedial order which are not afforded to them by the making of a monetary order; and that the usual order where a finding of faulty workmanship is made is to require the respondent to rectify those works. The Tribunal also found that the original Tribunal erred by placing weight on the following factors: that the relationship between the parties was not good, which would ordinarily be the case in a dispute of this nature; and that the applicant did not agree with the respondent's proposed remedial approach. The Tribunal found that a substantial injustice would be suffered if the original decision in this respect was left unreversed.
The Tribunal therefore granted leave limited to the question as to what building remedy order is appropriate to be made in favour of the applicant. Otherwise leave to review the decision was refused.
Category: B
Representation:
Counsel:
Applicant: In Person
Respondent: Mr P Monaco
Solicitors:
Applicant: N/A
Respondent: GV Lawyers
Case(s) referred to in decision(s):
Filimon and Rimmer [2013] WASAT 13
Myran Holdings Pty Ltd and Bombak [2013] WASAT 20
Nelson v Mardesic (1998) 22 SR (WA) 42
Trengove and Celebration Nominees Pty Ltd [2012] WASAT 65
REASONS FOR DECISION OF THE TRIBUNAL:
The application for leave to review
On 12 July 2016, following a hearing which took place on 14 March 2016, the original Tribunal delivered reasons for decision in respect of a complaint made by the applicant pursuant to s 5(1) and s 5(2) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act), in respect of the construction of a dwelling at 24 Tolworth Way, Embleton in the State of Western Australia. The building service complaint brought pursuant to s 5(1) of the BSCRA Act related to an allegation that cold water taps in the dwelling were supplying water of an excessive temperature due to the plumbing pipes having been run through the roof space. The second complaint item was brought as either a breach of contract claim pursuant to s 5(2) of the BSCRA Act and s 17 of the Home Building Contracts Act 1991 (WA) (HBC Act), and/or a building service complaint pursuant to s 5(1) of the BSCRA Act and related to an allegation of cracking to plaster and ceiling cornices throughout the dwelling.
On 12 July 2016, the original Tribunal dismissed the complaint in respect of the cold water service on the basis that the applicant had not established that the regulated building service had been performed in a faulty or unsatisfactory manner, or was work performed which was not proper or proficient. The original Tribunal also dismissed the complaint in respect of the cracking of plaster and cornices on the basis of an alleged breach of contract. However, the original Tribunal did find the respondent liable in respect of the cornices complaint pursuant to s 5(1) of the BSCRA Act on the basis that the work was faulty or unsatisfactory.
Although the applicant sought an order from the original Tribunal that the respondent undertake the necessary remedial work, the original Tribunal declined to exercise its discretion to make an order of that nature and instead ordered payment of $15,305.40 by the respondent to the applicant.
The applicant filed an application pursuant to s 58 of the BSCRA Act on 8 August 2016 seeking leave to review the decision of the original Tribunal on 12 July 2016.
The proposed grounds of review
The proposed grounds of review are as follows:
1)The original Tribunal erred in fact and law by not being satisfied that the plumbing work in respect of the provision of the cold water service was faulty or unsatisfactory. The applicant alleges that the regulated building service does not comply with the relevant Australian Standard, being AS/NZS 3500:2003.1 at 2.4.1(d) 'pipes and fittings shall be protected from excessive ambient heat'. The applicant alleges that the use of the word 'shall' in 2.4.1(d) makes it a mandatory requirement that plumbing pipework must be protected from excessive ambient heat such as that found in the roof space of the dwelling.
2)The original Tribunal erred in fact and law by failing to find a breach of the contract which required the affixing of cornices to be done in accordance 'with the manufacturer's specifications'. The applicant contends that the original Tribunal erred in not finding a breach of the contract on the basis that the relevant manufacturer's recommendations, being the CSR Gyprock Residential Installation Guide, require the affixing of the gyprock cornice 'on gyprock plasterboard, fibrous plaster or cement rendered surfaces' and also require compliance with the relevant Australian Standard AS2589. The applicant contends that contrary to the manufacturer's recommendations and AS2589, the cornices were attached to the whitewall plaster, rather than the cement render.
3)If the applicant fails to obtain leave in relation to ground 2 above, then the applicant also seeks leave in respect of the type of remedy ordered by the original Tribunal flowing from its finding of faulty or unsatisfactory workmanship in relation to the cracking of the cornices. The applicant alleges that the original Tribunal erred in law and fact by not requiring the respondent to perform the remedial works.
The criteria for the grant of leave
In Myran Holdings Pty Ltd and Bombak [2013] WASAT 20 at [8], the Tribunal set out the following criteria to be considered in deciding whether to grant leave and which were adopted from a consideration of that matter in Filimon and Rimmer [2013] WASAT 13:
The following principles can be gleaned from the discussion of the applicable criteria for the grant of leave to review under s 58(2) of the BS(CRA) Act as discussed in Filimon and Rimmer [2013] WASAT 13:
1)It is necessary to show that the decision of the original Tribunal was wrong or attended with sufficient doubt.
2)It must be shown that if leave were not to be granted, the applicant would suffer a substantial injustice.
3)It will normally not be sufficient that the decision appealed from is apparently wrong or attended with doubt. Something more will need to be shown, such as that there is a significant question of law to be considered, or some other feature, which requires the consideration of the Tribunal to avoid a substantial injustice [if] leave were not to be granted.
4)The decisions of the original Tribunal are not to be read minutely and finely with an eye keenly attuned to the perception of error.
5)A broad view should be taken of all the material before the original Tribunal, and this Tribunal should be slow to grant leave to review or to allow reviews except in cases where, clearly, there is no discernible basis for the decision or, for example, where fundamental rules of natural justice have been breached.
6)Leave may be granted in respect of only some and not other grounds of the proposed review.
7)Having regard to the objects of the Tribunal, and because any review is by way of a hearing de novo, there is all the more reason to be particularly discerning about whether sufficient doubt exists to open the possibility of leave being granted.
8)In considering challenges to the weight of evidence, regard must be given to the expertise of the members of the original Tribunal.
The above criteria of course do not restrict the Tribunal in having regard to other matters which may require consideration in order to avoid a substantial injustice.
Consideration of grounds of review
Ground 1: Provision of cold water service
The original Tribunal addressed the allegation of faulty and/or unsatisfactory work in respect of the cold water service at T:611; 12.07.16. In its reasons for decision, the original Tribunal sets out the allegation made by the applicant that water delivered to cold water outlets at the dwelling is, at times, above the maximum temperature permitted in hot water outlets. The applicant contended that this fact evidenced that the plumbing pipework was either faulty or unsatisfactory or not performed in a proper and proficient manner.
The original Tribunal summarised the evidence relied upon by the applicant in respect of this complaint in its decision which effectively comprised written extracts of the relevant Australian Standard, AS/NZS 3500.1:2003 Plumbing and Drainage 5.5 Location of Piping and also AS/NZS 3500.1:2015 Plumbing and Drainage 5.4 Location of Piping. There was only one independent expert called to give evidence in relation to this issue, being Mr Neville Harrison, on behalf of the respondent and who is a registered builder of some significant years. The applicant did not call any expert witness in relation to this issue.
The relevant exerts of the Australian Standard which were before the original Tribunal and which were considered by it in its reasons for decision provide the following:
To prevent any unreasonable rise in the temperature of the cold water delivered to fixtures located within a building, pipes and fittings installed above the ground should be protected against the heating effects of solar radiation or any other heat source. (Exhibit 3)
The original Tribunal also considered a technical note from the Plumbers Licensing Board issued in March 2010 (Exhibit 4) which provided as follows:
… an interim advice for Licensed Plumbers to temper heated water services in [four designated categories]:
The effects of solar radiation or other heat sources on cold water delivered to fixtures should also be considered to ensure that scalding does not occur at cold water outlets. The current review of the Regulations proposes this as a mandatory requirement in areas of high ambient temperature eg in a ceiling space or under paving.
The original Tribunal ultimately accepted the evidence of Mr Harrison that in respect of this regulated building service the respondent had performed the work in compliance with the relevant Australian Standard, in that the respondent had taken all reasonable steps to protect the pipework from the effects of heat, which had included insulating the pipework. Mr Harrison gave oral evidence that there is no mandatory requirement that cold water services provide water at a particular temperature or within a certain range of temperature. The original Tribunal accepted this evidence of Mr Harrison and noted that there was no independent expert evidence to contradict Mr Harrison's evidence in this regard.
The original Tribunal ultimately found that the respondent did not have an absolute duty to prevent heated water arriving at a cold water outlet in the height of summer. It also found that the respondent, although it had an obligation to take reasonable steps to alleviate heat sources on the plumbing pipework, had taken reasonable steps in this regard. The applicant had no expert evidence to rely upon at the hearing to support his contention that the regulated building service was faulty or unsatisfactory, or that there were further steps the respondent ought to have taken to protect the pipework from heat sources beyond what it had already done.
The onus is on the applicant to establish that the decision of the original Tribunal on this complaint was either wrong or attended with sufficient doubt. The applicant attempts to do this through the introduction of new submissions which were not before the original Tribunal. The applicant has not specifically identified the error of the original Tribunal in its reasoning or what parts of the decision are attended with sufficient doubt. He simply wants a different outcome.
In the Tribunal's view, the original Tribunal took into account all relevant evidence, and gave consideration to that evidence, and made relevant findings of fact upon which the determination could reasonably rely. On the basis of a finding that the regulated building service was not faulty or unsatisfactory and had been performed in a proper and proficient manner, it was therefore appropriate that the applicant's complaint be dismissed. The original Tribunal only had one source of independent expert evidence to consider. The transcript of the hearing itself evidences that the applicant and the original Tribunal members tested that evidence. The original Tribunal found it to be reliable and therefore was able to accept that evidence in reaching a decision.
On the basis that the applicant has not been able to identify an error or an attendance of sufficient doubt in relation to this complaint item, it is unnecessary to consider the other criteria for granting leave. Therefore, in respect of the building service complaint in relation to the provision of cold water at the dwelling, leave for review is not granted.
Ground 2: Contractual complaint in respect of cornice installation
The original Tribunal addressed in its reasons at T:1222; 12.07.2016, both the contractual complaint in respect of the cracking of the cornices as well as the building service complaint in relation to that regulated building service. In relation to this complaint item the original Tribunal had the benefit of three independent experts including the applicant's expert, Mr Christian Rees Mogg, a registered builder, and the respondent's experts Mr Harrison, and Dr Armand Zurhaar, a materials scientist.
Essentially, the experts' views differed in the interpretation of the relevant manufacturer's recommendations. The applicant's expert gave evidence that the recommendation in identifying that the gyprock cornice could be used on gyprock plaster board, fibrous plaster and/or cement rendered surfaces ought to be interpreted as a mandatory requirement. The independent experts relied upon by the respondent disagreed with Mr Mogg and both gave evidence, which the original Tribunal ultimately accepted, that the manufacturer's recommendations cannot and are not interpreted in the industry as recommending against the installation of cornice onto gyprock plaster surfaces. Thus, they gave oral evidence that the respondent had performed the regulated building service in compliance with the contractual provisions on the basis of this interpretation of the manufacturer's recommendation.
The original Tribunal preferred the evidence of Mr Harrison and Dr Zurhaar than that of Mr Mogg in this respect. The original Tribunal made findings that the proper interpretation of the manufacturer's recommendation was that it anticipated that a gyprock cornice may be installed on many different surfaces when the recommendation is read in its entirety. The original Tribunal also found that the purpose of the manufacturer's recommendation is to provide recommendations regarding the affixing of the cornice, rather than to mandate the surface onto which it is to be fixed (T:19; 12.07.16).
The original Tribunal also addressed in its oral reasons the submission made by the applicant that because the relevant manufacturer guidelines referred to the AS2589, that a proper interpretation of the contract was that it required strict compliance with both the manufacturer's recommendations and the relevant Australian Standard. This matter was raised at T:4; 12.07.16. It was not in dispute that the relevant Australian Standard requires cornices to be installed after the cement render has been applied and before the walls have been set (T:3; 12.07.16). Thus, if that standard formed part of the respondent's contractual obligations, a breach of contract could be found.
Although the original Tribunal did not make a specific finding as to the terms of the contract in relation to whether the Australian Standard formed part of the contractual provisions, the original Tribunal did make the following finding at T:22; 12.07.16: 'the [T]ribunal does not accept that the respondent is in breach of contract by reason of having affixed the cornices to the set coat'. One can interpret this finding as being based on a rejection of the applicant's contention that the relevant Australian Standard formed part of the contract.
In this Tribunal's view, the original Tribunal gave careful consideration to the requirements, interpretation and purpose of the relevant manufacturer's recommendation. The original Tribunal also gave careful consideration to the interpretation of the relevant provision of the contract. It was open to the original Tribunal to find that there had been no breach of the relevant provision. Even if it could be argued that insufficient reasons were given in relation to the submission made by the applicant that AS2589 formed part of the contract, it is this Tribunal's view that there would be no substantial injustice done by leaving that part of the decision unreversed. This is on the basis that this particular complaint could be made as either a contractual complaint or a building service complaint. This is relevant because the HBC Act provides that in circumstances where an applicant is able to seek a building remedy order under the BSCRA Act, then that claim must be pursued and a claim for breach of contract can only be made in circumstances where the claim could not be made as a building service complaint. The relevant provision of the HBC Act is as follows:
17.Breach of contract or Part 2, or entitlement to compensation, procedure in case of
If an owner or builder under a contract claims that
(a)there has been a breach of
(i)the contract, not being a breach in respect of which a building remedy order may be made under the Building Services (Complaint Resolution and Administration) Act 2011; or
(ii)a provision in Part 2;
or
(b)the owner or builder is entitled to compensation under Schedule 1,
then, subject to the Building Services (Complaint Resolution and Administration) Act 2011, the owner or builder may make a complaint under section 5(2) of that Act.
Even if one could find sufficient doubt in the decision on the contractual complaint on the basis that the original Tribunal did not specifically address the question as to whether the relevant Australian Standard formed part of the contract, in this Tribunal's view there would be no substantial injustice suffered. This is because if the matter were to be heard again the complaint would be dealt with as a building service complaint under the BSCRA Act, rather than as a home building work contract complaint due to the operation of s 17 of the HBC Act.
Therefore, leave to review is not granted in respect of ground 2 of the leave application.
Ground 3: Cracking of cornices whether appropriate remedy granted
The original Tribunal found that the extent of the cornice cracking in the dwelling evidenced that the installation of the cornices was a regulated building service which was faulty and/or unsatisfactory or work not performed in a proper and proficient manner. The original Tribunal then proceeded to issue a building remedy order in favour of the applicant pursuant to s 36(1)(b) of the BSCRA Act that the respondent pay the applicant the cost of remedying the building service. The applicant contended throughout the proceeding that if he was found to be successful, he wanted a building remedy order pursuant to s 36(1)(a) of the BSCRA Act such that the respondent remedy the regulated building service. Although the applicant submitted that he wanted the order to be in specific terms in relation to the required remedial work, it was also open to the original Tribunal to make an order in the commonly used form of 'the respondent is to remedy the cause and effect'.
Prior to the hearing the respondent gave notice to the applicant and to the original Tribunal that it would be contending that if a building remedy order were to be made, that it ought to be for the payment of a sum of money rather than an order requiring the respondent to perform remedial work. In the expert reports of Mr Harrison he therefore prepared costings evidence reflecting his view on reasonable third party costs to remedy the complaint items, if found to be faulty or unsatisfactory by the Tribunal.
The applicant chose not to rely on any quotations or costing evidence on the basis that he believed that he had a right to elect an appropriate remedy and his choice, if successful, was for an order requiring the respondent to return to his home and perform the requisite remedial works. The basis on which the respondent contended that the usual order requiring a respondent to return and rectify its own work ought not to be made was on the basis of an allegation of a significant breakdown in the relationship between the parties. The breakdown was said to be characterised by a distrust on behalf of the applicant as to the quality of the work of the respondent and thus a likelihood that the applicant would interfere with the respondent's attempts to comply with any orders of the Tribunal requiring it to perform remedial work.
The original Tribunal gave brief reasons in relation to its determination that an order to pay was a more appropriate remedy in the circumstances of this particular matter and at T:22; 12.07.16 set out the following:
The [T]ribunal accepts the respondent's argument that an order to pay should be made. In view of the evidence from both sides the [T]ribunal accepts that there has been a significant breakdown in the relationship between the parties such that it would be impossible now for the respondent to be able to satisfy the applicant's expectations on any remedial works.
In summary, the evidence relied upon by the original Tribunal in reaching that decision was the oral evidence of the applicant himself which can be summarised as follows:
•The applicant's view that there have been many problems during the construction and delays with tradesmen and that various supervisors employed by the respondent had failed to ensure acceptable building practices and standards were followed (T:43; 14.03.16).
•The applicant does not believe that the respondent will follow through with some of their promises (T:43; 14.03.16) and the applicant views the respondent with suspicion (T:44; 14.03.16).
•The applicant does not accept the proposed method of rectification of the regulated building services (T:44; 14.03.16).
•The applicant has shared his views with others that he does not accept the calibre and quality of some of the independent contractors engaged by the respondent (T:45; 14.03.16).
The nature of the building remedy order made by the original Tribunal is an important consideration. There is a significant difference between building remedy orders issued pursuant to s 36(1)(a) and those issued pursuant to s 36(1)(b) or s 36(1)(c) of the BSCRA Act. The difference is that there are particular advantages to an applicant in being issued an order pursuant to s 36(1)(a) which are not available to the applicant if orders under subsections (b) or (c) are made in the absence of an order under subsection (a). Those additional advantages are as follows:
1)An order made pursuant to s 36(1)(a) provides further protection to an applicant on the basis that if the work is not performed, or partly performed, or performed in a faulty or unsatisfactory manner, the applicant has the right to seek orders pursuant to s 51 of the BSCRA Act which allows effectively for a 'conversion' of the order requiring work to be performed to a monetary order reflecting the costs of a third party performing that work.
2)An order pursuant to s 36(1)(a) is also advantageous to an applicant because it avoids the potential ambiguity and confusion which may arise in relation to issues of liability if the remedial work performed is itself faulty or unsatisfactory. If the same contractor has performed all of the relevant works, then the question as to who is responsible is straightforward. However, if an owner engages a third party to rectify the respondent's work, questions often arise, if the complaint still exists, as to whether the underlying issue remains and/or whether the remedial work itself is faulty.
3)Orders pursuant to s 36(1)(a) are also advantageous to applicants because often third party contractors are reluctant to perform remedial works in respect of another contractor's underlying work. It is, therefore, often very difficult to obtain any evidence or reliable evidence on costing the remedial work on a third party basis and often that costing, as it was in the current proceeding, is provided by independent experts who are not available to perform the work.
There is limited case law in existence on what factors and considerations are to be taken into account in circumstances where the Tribunal refuses to exercise its discretion to make a building remedy order in the form that an applicant has elected. This is because such circumstances are exceptional. The usual practice, built up over considerable time, is to give a builder respondent the opportunity to remedy its own defective work. This is because an order to perform remedial work has usually been considered to be the appropriate remedy to fully compensate an owner whilst at the same time minimising the hardship to the builder, given that the builder can usually carry out the remedial work at significantly less cost than would be charged by a third party contractor, who would usually charge a premium for carrying out that work: Nelson v Mardesic (1998) 22 SR (WA) 42 (Nelson) at 46.
Those cases where an order to pay has been made by the Tribunal normally occurs at the election of the applicant and on a sufficient basis being established. Factors to take into consideration were dealt with in the Nelson case and include a consideration as to whether the relationship between the parties has broken down to the extent that an owner has lost all confidence in the builder and whether or not that view is justified. In the Nelsoncase it was the owner who did not want the builder to return to perform the remedial work on the basis that they had lost all confidence in the builder and believed that the builder was not competent to carry out the work. Importantly, in that matter the Building Disputes Tribunal expressed the following view at [49]:
… the Committee cannot compel an owner to elect a particular remedy. The owners have elected to seek an order to pay and they are entitled to it. If the builder had demonstrated that the owners were acting unreasonably in insisting on this remedy, the reasonable costs to which the owners would be entitled under s 12A(1a)(b) [of the Builders' Registration Act 1939 (WA)] would be the cost to the builder of carrying out that remedial work, but that is not the case on the evidence before us.
It is this Tribunal's view that the original Tribunal have erred in their approach to determining what was the appropriate remedy to order in favour of the applicant. In this regard the original Tribunal erred in the following respects:
1)There was a failure to take into account and to give weight to the applicant's desire to elect a remedy given that the underlying intent of the legislation is to protect consumers in circumstances where a regulated building service has been performed which is faulty and/or unsatisfactory manner or not performed in a proper and proficient manner.
2)The original Tribunal erred by not giving adequate weight to relevant considerations including that the usual order in circumstances of a finding of faulty and/or unsatisfactory work is an order requiring the respondent to remedy its own work, given the advantages afforded to both parties as set out in [30] above.
3)Although the original Tribunal found that there had been a breakdown in the relationship the original Tribunal erred in this finding on two bases:
i)firstly, in giving too much weight to the breakdown, in the absence of a finding of a complete lack of confidence by the applicant in the respondent's workmanship. A breakdown of the relationship between the parties per se is in most proceedings a natural consequence of a dispute arising between an owner and a builder and ought not, in and of itself, deprive an owner of their elected remedy, and
ii)secondly, in not finding such breakdown to be irretrievable or at a stage where to compel the respondent to return would have inevitably resulted in ongoing dispute between them (Trengove and Celebration Nominees Pty Ltd [2012] WASAT 65 at [36]).
4)The original Tribunal also erred in giving weight to the fact that the applicant did not agree with the respondent's proposed remedial methods. Issues such as the applicant interfering with the respondent's ability to perform the works are relevant in applications pursuant to s 51 of the BSCRA Act, but are not considerations which ought to be taken into account by the original Tribunal in refusing to make a building remedy order pursuant to s 36(1)(a) in the first instance.
The Tribunal also finds that there would be a substantial injustice done by leaving the decision in respect of the appropriate remedy unreversed. This is because an order to pay is significantly different in nature and does not have the advantages offered by an order requiring work to be done which have been identified at [30] above.
Conclusion
For the reasons given above, leave to review is granted partially in relation to the nature of the building remedy order to be made in favour of the applicant on the basis of a finding that the cracking of the cornices was work which was faulty and/or unsatisfactory.
Orders
The Tribunal therefore makes the following orders:
1.Leave for review is granted limited to the question as to what building remedy order should be made in favour of the applicant on the basis of a finding of faulty and/or unsatisfactory workmanship in respect of cracking of cornices.
2.All other grounds seeking leave to review are hereby dismissed.
3.The matter is listed for a directions hearing at 2.00 pm on 14 March 2017 for programming orders and also to afford the applicant time to lodge a new complaint with the Building Commissioner and seek to have that complaint referred to this Tribunal to be heard together with this proceeding.
I certify that this and the preceding [35] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS C WALLACE, SENIOR MEMBER
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