Sartzidis v Moss - [2025] WASC 83

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   SARTZIDIS -v- MOSS [2025] WASC 83
CORAM:   WHITBY J
HEARD:   11 FEBRUARY 2025
DELIVERED          :   14 MARCH 2025
FILE NO/S:   GDA 4 of 2024
BETWEEN:   THEO SARTZIDIS
Appellant
AND
MOIRA FRANCES MOSS
Respondent

ON APPEAL FROM:
Jurisdiction              :   STATE ADMINISTRATIVE TRIBUNAL
Coram:   MEMBER DE VILLIERS
File Number            :   CC 2073 of 2021

Catchwords:

Administrative law - Appeal against decision of State Administrative Tribunal - Building services complaint - Home Building Work Contract complaint under the Building Services (Complaint Resolution and Administration) Act 2011 (WA) - Whether the Tribunal denied the appellant procedural fairness - Turns on own facts

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA) s 3, s 5, s 7, s 8, s 9, s 10, s 11(1)(d), s 36, s 41(2), s 43
Home Building Contracts Act 1991 (WA) s 17
State Administrative Tribunal Act 2004 (WA) s 105

Result:

Leave to appeal refused

Category: B

Representation:

Counsel:

Appellant	:	J Healy
Respondent	:	R O'Brien

Solicitors:

Appellant	:	Cullen Macleod Lawyers
Respondent	:	ER Legal Pty Ltd

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

Giudice v Legal Profession Complaints Committee [2014] WASCA 115
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331
Thillagaratnam v Law Complaints Officer As The Delegate Of The Legal Profession Complaints Committee [2024] WASCA 73

WHITBY J:

Summary

The appellant (the builder) has applied for an extension of time to appeal and for leave to appeal against orders made by the State Administrative Tribunal on 22 and 25 January 2024 in proceedings commenced by the respondent (the owner) against the builder.
The Tribunal ultimately found in favour of the respondent. On 11 March 2024, the Tribunal made orders pursuant to the Building Services (Complaint Resolution and Administration) Act 2011 (WA) requiring the builder to pay the owner a total amount of $39,718.90, being $33,498.02 for remedial work and $6,220.88 for costs, other than for legal costs, incurred in the proceedings. The builder also seeks leave to appeal from these orders.
The application for leave to appeal is made pursuant to s 105 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The builder seeks leave to appeal on the following single ground:[1]
The Tribunal erred on a question of law in that there was a denial of procedural fairness in the conduct of the hearing on 6 and 7 February 2024 (Hearing) which resulted from the Tribunal misconstruing and then misdirecting itself regarding orders made on 1 September 2023 and 12 October 2023 regarding the scope of a limited preliminary issue which had been referred for determination, with the result being that the Tribunal made Orders on 22 and 25 January 2024 which prevented the appellant from including documents in the hearing bundle and advancing arguments at the Hearing which were contained within his filed statements of contention and were outside the terms of the limited preliminary issue which had been referred for determination under order 1 of the 1 September 2023 orders.
Particulars
Paragraph 1 of the 1 September 2024 orders was in the following terms: The Tribunal will first address the preliminary issue raised by the respondent, namely whether the complaint was made within time, pursuant to section 6 of the Building Services (Complaint Resolution and Administration) Act 2011.
[1] The builder sought leave to amend the grounds of appeal by application dated 15 July 2024. I granted leave to amend the grounds of appeal in terms of that application at the hearing of the appeal.
For the reasons set out below I refuse leave to appeal.

The evidence

The builder relied on his four affidavits affirmed on 15 July 2024, 25 September 2024, 29 January 2025 and 19 February 2025 (the First to Fourth Sartzidis Affidavits respectively). The builder also filed a chronology dated 10 February 2025 and an amended outline of submissions dated 28 January 2025.
The owner relied upon her two affidavits sworn on 8 November 2024 (as amended on 3 February 2025 in response to objections from the builder) and 3 December 2024 (the First and Second Moss Affidavits respectively) and the affidavit of Elisha Lee Rose sworn on 21 January 2025 (Rose Affidavit). The owner also filed an outline of submissions dated 23 January 2025.

Statutory regime for appeals from the Tribunal to the Supreme Court

The SAT Act provides that a party to proceedings before the Tribunal may appeal. Subject to a limited and presently irrelevant exception, an appeal may only be brought on a question of law. Leave to appeal is required.[2] Leave to appeal should only be granted if, in all of the circumstances, it is in the interests of justice to do so.[3]
[2] SAT Act s 105 (1) (2).
[3] Thillagaratnam v Law Complaints Officer As The Delegate Of The Legal Profession Complaints Committee [2024] WASCA 73 [26].
The Court of Appeal has emphasised on several occasions that it is critically important for an appellant to identify the question of law on which an appeal is brought.[4] The applicant for leave must show that he or she has a real or significant argument to put on that question of law.[5]
[4] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [53] - [57]; Giudice v Legal Profession Complaints Committee [2014] WASCA 115 [67] - [77].
[5] Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331.

The facts

The critical facts are as follows.
On 12 or 13 October 2012, the owner and the builder entered into a standard Housing Industry Association Home Building Contracts Act Lump Sum Building Contract pursuant to which the builder agreed to build a house for the owner at 14 Greenville Street, Swanbourne (Contract).
On 3 July 2012, the builder obtained a building licence in relation to the owner's house, which was for the term of 24 months. The builder started work on the house around mid-October 2012.
Pursuant to the Contract, the practical date for completion of the house was 14 March 2014. The house was not completed by that date or by the time that the building licence expired on 3 July 2014.
On 19 January 2015, the owner received a letter from the City of Nedlands advising that the City had issued a formal 'Stop Work Order' to the builder as the building licence had expired and that the company through which the builder operated, Buildsmart Holdings Pty Ltd, was no longer a registered builder.[6]
[6] First Sartzidis Affidavit Attachment TS 18A.
On 29 January 2015, the owner issued the builder with a Notice of Default and intention to terminate the Contract.[7]
[7] First Moss Affidavit Attachment MM-1.
The owner arranged for a building inspection to be carried out. The owner alleges that the building inspection revealed a number of defects in the house, totally 138 items.

First Tribunal proceedings

In 2016, the owner commenced proceedings in the Tribunal, being complaint CC 362/2016 seeking a payment order in respect of several defects identified in the building inspection. The owner obtained judgment in her favour in the amount of $56,378.04 plus costs of $17,449.44. The builder has paid that total amount to the owner.

Second Tribunal proceedings

In 2019, the owner commenced a second set of proceedings in the Tribunal, being complaint CC 1387/2019 in relation to render on the front walls of the house, defects in the front boundary wall and driveway retaining wall. The owner obtained judgment in her favour in the amount of $18,023.53 plus costs of $8,190. The builder has paid that total to the owner.

Third Tribunal proceedings (the proceedings the subject of this application)

On 29 January 2021, the owner lodged a complaint against the builder under the Building Services (Complaint Resolution Administration) Act 2011 (WA) in relation to defective roof works on the house. The Commissioner referred the complaint to the Tribunal for determination. In October 2022, the owner provided a Scott schedule detailing her complaints for determination by the Tribunal. This comprises the third set of proceedings in the Tribunal, being complaint CC 2073/2021 relating to the roof of the house.
The builder denied that he was responsible for any defective roof works. The owner obtained judgment in the amount of $33,498.02 and costs thrown away of $8.147.70, costs of the substantive hearing of $12,182.50 and expert costs of $6,220.88. The total amount, including all costs, was $60,049.10. The defendant has paid that amount into court in this appeal, save for releasing the sum of $8,147.70 to the owner for costs thrown away. The amount that remains in issue is $51,901.40.

Builder's submissions on appeal

Counsel for the builder summarised the grounds upon which the builder sought to defend the third Tribunal proceedings as follows:
(1)whether:
(a)similar matters had been determined in previous Tribunal proceedings;
(b)the building licence for the works had expired prior to the alleged works on the roof having been performed; and/or
(c)the works on the roof were performed after the Contract had ended and therefore performed by the builder as a contractor to the owner or third parties under the instruction of the owner.
(collectively Issue 1)
(2)if the Tribunal answered no to all of those matters comprising Issue 1, then was the builder responsible for performing the alleged defective works and what was the relevance, if any, of a prosecution conducted in absentia of the builder by the City of Nedlands in respect to building works said to have been performed after the expiry of the building licence (Issue 2); and
(3)if the answer to all the matters comprising Issue 1 was no and the answer to Issue 1 was yes, were the roof works the subject of the complaint the result of defective workmanship by the builder undertaken as a building service practitioner (Issue 3).
The builder says that due to procedural orders made by the Tribunal on 22 and 25 January 2024, the builder was unable to properly advance arguments with respect to Issues 1 and 2 at the substantive hearing of the third Tribunal proceedings on 6 and 7 February 2024. The builder says that he was limited to arguing only about Issue 3, which he referred to as 'Workmanship Complaints'.
The builder says that because the Tribunal limited his arguments to Issue 3, he was denied procedural fairness as he was unable to include evidence in the hearing bundle or properly advance arguments which related to Issue 1 or Issue 2. The builder submits that this amounted to a denial of procedural fairness.
The builder submits that, by way of examples, he was precluded from advancing the following arguments at the substantive hearing given he was directed by the Tribunal to remove certain documents from the hearing bundle:
(1)the roof works were carried out by third parties, not the builder, under direction of and instruction from, the owner, after the building licence expired and after the termination of the Contract - the builder would have relied on documents attached at TS-17A, TS-18, TS-19 of the First Sartzidis Affidavit, the owner's evidence given in the third Tribunal proceedings and the transcript of the third Tribunal proceedings;[8]
[8] First Sartzidis Affidavit [61(a)].
(2)the owner, not the builder, was responsible for the roof works the subject of the complaint because the building licence expired on 3 July 2014 which:
(a)made all works carried out after that date unauthorised and unlawful, including the roof works the subject of the complaint; and
(b)made the owner, not the builder, responsible for all the building works conducted after the building licence expired. Including the roof works, the subject of the complaint - the builder would have relied on documents attached at TS 17A, TS 18, TS-19 of the First Sartzidis Affidavit, the owner's evidence given in the third Tribunal proceedings and the transcript of the third Tribunal proceedings;[9]
[9] First Sartzidis Affidavit [61(a)].
(3)the owner invalidly terminated the building contract on 13 February 2015, when she terminated the building contract on the basis (amongst others) that the builder had not completed various works before the practical completion date of 14 March 2014 (including the roof works the subject of the complaint). The termination on that ground was invalid because the incomplete works:
(a)were unauthorised and unlawful because the owner, not the builder, was responsible for the roof works because the building licence had expired - the builder would have relied on documents attached at TS-17A, TS-18, TS-19 of the First Sartzidis Affidavit, the owner's evidence given in the third Tribunal proceedings and the transcript of the third Tribunal proceedings;[10]
(b)included works that were Owners Works under the building contract so were the owner's responsibility, not the builder's - the builder would have relied on documents attached at TS-17A, TS-18, TS-19 of the First Sartzidis Affidavit, the owner's evidence given in the third Tribunal proceedings and the transcript of the third Tribunal proceedings;[11] and
(c)some of which were part of an additional approximate $200,000 of additional works that were not part of the building contract, that the builder had taken control of and was organising as additional Owners Works, so were the owner's responsibility, not the builder's - the builder would have relied on documents attached at TS‑19 and TS-20 of the First Sartzidis Affidavit, the owner's evidence given in the third Tribunal proceedings and the transcript of the first Tribunal proceedings;[12] and
(d)events outside of the builder's control, including the owner's acts of prevention, caused the works under the Contract to not be finished by the builder prior to the practical completion date - the builder would have relied on documents attached at TS-19, TS-20 and TS-21 of the First Sartzidis Affidavit;[13]
(4)many of the works the subject of the third Tribunal proceedings had been heard, and determined, in the first Tribunal proceedings - the builder would have relied on the owner's evidence given in the first Tribunal proceedings and the transcript of the first Tribunal proceedings;[14] and
(5)as the works were incomplete/unfinished, the Tribunal did not have jurisdiction to determine that the roof works were defective - the builder would have relied on documents attached at TS-19 and TS-20 of the First Sartzidis Affidavit, the owner's evidence given in the first Tribunal proceedings and the transcript of the first Tribunal proceedings.[15]
[10] First Sartzidis Affidavit [61(a)].
[11] First Sartzidis Affidavit [61(a)].
[12] First Sartzidis Affidavit [13(c) (2)], [61(b) v (A) and (B)], and [61(d)].
[13] First Sartzidis Affidavit [61(b)].
[14] First Sartzidis Affidavit [61(c)].
[15] First Sartzidis Affidavit [61(d)].

Disposition

The ground of appeal is premised on the appellant being prevented from including documents in the final hearing bundle and from advancing arguments at the hearing which related to Issues 1 and 2.
Therefore, in order for the builder to succeed on appeal, I must be satisfied that:
(1)the builder did actually remove documents relating to Issues 1 and 2 from the hearing bundle filed on 31 December 2023;
(2)the builder did not subsequently file documents relating to Issues 1 and 2 in the hearing bundle; and
(3)the builder was not permitted to advance any arguments relating to Issues 1 and 2 at the hearing.
If I am not satisfied of these matters, the builder's ground of appeal is without foundation and has no prospect of success. In those circumstances, I would not be required to determine whether the Tribunal wrongly limited the matters in issue at the hearing of the third Tribunal proceedings.
It is necessary to set out what transpired at the hearing of the appeal in relation to the documents which were filed by the builder in the third Tribunal proceedings. It will become apparent why after I do so.
During the hearing, I enquired of counsel for the builder what documents, relating to Issues 1 and 2, were in the hearing bundle filed on 31 December 2023 and were subsequently removed by the builder. I granted a short adjournment for counsel to take instructions from the builder. After that short adjournment, counsel for the builder informed the court that the hearing bundle filed with the Tribunal on 31 December 2023 was at the builder's residence and he had left the court to urgently retrieve it.
After the lunch adjournment (and another further short adjournment to await the return of the builder), counsel for the builder provided the court with a folder which contained an index and a 300‑page document purporting to be a document which cross-referenced each issue advanced by the builder to a page number within the hearing bundle. The builder instructed counsel that this 300-page document was filed with the hearing bundle on 31 December 2023. Counsel submitted that this cross-referenced document identified which documents in the hearing bundle went to specific issues the builder sought to advance.[16]
[16] ts 77.
However, upon further enquiry from the court, there remained uncertainty about what documents were in the hearing bundle filed on 31 December 2023 as compared to what was in the final hearing bundle before the Tribunal for the substantive hearing on 6 and 7 February 2024. I afforded the builder the opportunity to file additional evidence after the hearing to address this uncertainty. At the conclusion of the appeal hearing, I ordered that the builder, by 15 February 2025, file and serve any documents upon which he wished to rely that were before the Tribunal (Documents), identifying the date that each of the Documents was filed at the Tribunal. I also ordered that the builder file any written submissions in relation to the Documents by the same date.
On 19 February 2025, the builder filed the Fourth Sartzidis Affidavit in which he deposed that he wished to correct errors in the evidence filed and submissions made at the appeal hearing on his behalf. Those errors were:
(1)attachments TS-17A, TS-18 and TS-18A to the First Sartzidis Affidavit were in fact before the Tribunal as part of the final hearing bundle; and
(2)the 300-page cross-referenced document was not filed with the Tribunal as part of any hearing bundle.
These errors were significant and proved fatal to the builder's appeal. That is because:
(1)the builder's contention that he was denied procedural fairness is dependent upon the fact that he was ordered to remove documents from the hearing bundle and that he did in fact remove those documents, documents which he said he needed to rely upon in order to advance his arguments in relation to Issues 1 and 2; and
(2)most of the documents which the builder says were relevant to Issues 1 and 2 were not, in fact, removed from the hearing bundle, contrary to his written submissions and the oral submissions at hearing. As it turned out, the builder had included those documents in the hearing bundle filed for the purposes of the substantive hearing.
Further, the builder did not provide any evidence in support of his earlier submissions that the remaining documents referred to in the builder's outline of submissions were before the Tribunal in the hearing bundle filed on 31 December 2023, but were removed from the final hearing bundle. This was despite having been requested, and provided with additional time, to do so. I cannot, therefore, be satisfied that those other documents were ever included in the 31 December 2023 hearing bundle. The builder cannot say that he was ordered to remove documents which were not before the Tribunal in the first place.

The builder's submissions that he was denied procedural fairness because he was ordered not to include documents in the hearing bundle (and therefore that he was prevented from advancing arguments in relation to Issues 1 and 2) cannot be maintained where the documents which he says were relevant to Issues 1 and 2 were either not in the hearing bundle filed on 31 December 2023 or were not removed from the final hearing bundle.
Even if these matters were not fatal to the builder's appeal, what occurred at the substantive hearing confirms the hopelessness of the builder's appeal.
The final hearing occurred over two days - on 6 and 7 February 2024. At the hearing, the builder relied upon three bundles, comprising in total, almost 2,000 pages.
The Tribunal Member gave the builder significant latitude - the builder was permitted to raise points of jurisdiction throughout the two days of the substantive hearing. In fact, in an introductory exchange with the owner's lawyer, the Tribunal Member requested that the lawyer not object if the builder made mention of jurisdiction in his submissions - to avoid 'constant interjections when they (sic) do so'.[17]
[17] First Sartzidis Affidavit Attachment TS-16 page 153.
In his closing address, Mr Graham, on behalf of the builder, made extensive oral submissions regarding issues of jurisdiction.[18] Mr Graham's submissions addressed (among other things) the example jurisdictional issues outlined in the builder's outline of submissions filed in this appeal.
[18] First Sartzidis Affidavit Attachment TS-16 pages 270 - 276.
The Tribunal handed down its reasons for decision on 11 March 2024. The decision identifies and determines 20 issues, including issues of jurisdiction.[19] Those issues and the decision in relation to each of them, are set out below.
[19] First Sartzidis Affidavit Attachment TS-16 from page 286.
The decision identified as Issue 5 'Did the owner become an owner-builder by undertaking some of the work herself?' and said:[20]
The builder contends that substantial work was excluded from the building contract for the owner to organise herself. This, according to the builder, ought to be construed that the owner was, in fact, the builder and that Mr Sartzidis was a contractor to her who assisted her with organising trades, supervising works, and providing some building works as a contractor, but not as a builder.
We reject this proposition for the following reasons: first, the building contract is complete and clearly identifies Mr Sartzidis as the builder. Second, the building licence and indemnity insurance were in the name of Mr Sartzidis. Third, the fine for undertaking unauthorised work was against Mr Sartzidis. Fourth, at two previous SAT proceedings, Mr Sartzidis was identified and accepted as the builder.
Fifth, there was no other contract or material that Mr Sartzidis could rely on to support the proposition that he was a contractor and not a builder. Sixth, at no stage did the owner hold an owner-builder licence or insurance. And, seventh, none of the works purportedly undertaken by the owner related to the current complaints about the roof. At no stage during the build or the approvals process did Mr Sartzidis object to him being identified as the builder.
In essence, the mere fact that certain works were conducted by the owner or excluded from the contract did not elevate her to the status of builder, neither did it change the status of Mr Sartzidis from builder to contractor.
[20] First Sartzidis Affidavit Attachment TS-16 pages 289 - 290.
The decision identified as Issue 7 'Did the expiry of the building licence imply that the builder was no longer the registered building services provider?' and said:[21]
The builder says that even if we were to find he was the builder, then his status of builder lapsed on the date the building licence expired on 3 July 2014. The builder says that any work he did after that date was as a contractor to the owner, who immediately and automatically became the owner-builder at the expiry of the building licence. Mr Sartzidis says, in paragraph 320 of his statement, that after the expiry of the building licence, the owner had become the, "liable supervisor" of the build.
In paragraph 337 he says that he had been unaware that his (indistinct) as builder, "had shifted from principal building practitioner to contractor." We reject the proposition that builder had changed its status when the licence expired, and we say so for the following reasons: first, the status of the builder is determined, not by the date of the building licence, but by the terms of the contract, the terms of the building licence, the terms of the indemnity insurance and an assessment of who actually performed the regulated building service.
Second, the builder continued to perform the building service and invoiced for it after the expiry of the building licence. Third, the builder was fined for unauthorised works he did after the expiry of the building licence. Fourth, there is no other evidence to support the proposition that the status of the builder had changed from building services provider to a contractor. And fifth, the roof the subject of the proceeding was completed on 14 July 2015, before the building licence had expired.
We therefore find that the builder was the registered building service provider at the time when the roof was erected, and he remained the registered building service provider regardless of the expiry of the building licence.
[21] First Sartzidis Affidavit Attachment TS-16 page 291.
The decision identified as Issue 8 'Was the builder responsible for erecting the roof? and said:[22]
The builder says that he was not responsible for the works the subject of this complaint. In support of his contention, the builder says the owner had some works done to bring the roof to completion, some works were done later as part of the owner completing the build, and some works were done as a result of remedial awards by the tribunal in two previous decisions.
Mr Sartzidis says in his statement - paragraph 49 - that he does not know when the roof had been completed, but he is of the opinion it was later than May 2014. He offered nothing more of substance in support of this opinion. We reject the defence of the builder. In the contract - A38 - allowance is made for ceilings and roof metal under the (indistinct) roof area. We find that the builder erected the roof, generally, and, more specifically, that the builder was responsible for the works the subject of each of the complaint items.
We find so for the following reasons: first, the building contract includes the roof as part of the work to be undertaken by the builder. Second, the builder invoiced and was paid for the roof - A228. Third, the roof was completed in mid-May 2014 - A156 - before 3 July 2014, when the building licence expired, and whilst the builder still had occupation of the site. Fourth, the builder did not inspect or file any expert report in which its proposition that work had been done to the roof after practical completion is established, and that such works relate to the complaints.
Fifth, the builder did not present any evidence, for example, by workers employed by him or subcontractors to state that they had not worked on or competed the roof. Sixth, the builder did not provide any documentary evidence, for example, diary of work or photographic evidence, to show that he had not been responsible for erecting the roof. We therefore find that the builder was responsible for erecting the roof in general, and performing the works the subject of this proceeding in particular.
[22] First Sartzidis Affidavit Attachment TS-16 pages 291 ‑ 292.
The decision identified as Issue 9 'What was the date of practical completion? and said:[23]
The builder disputed the date of practical completion, being 13 February 2015, since the dwelling had not been actually completed at that stage.
…
We therefore find that the date of practical completion was 13 January 2015, when the owner terminated the contract by written notice to the builder - A53 to 55. For the sake of clarity, we confirm that termination occurred some eight months after the roof had been completed.
[23] First Sartzidis Affidavit Attachment TS-16 pages 292 - 293.
The decision identified as Issue 11 'Was the roof complete at the date of practical completion? and said:[24]
And (sic) issue that was essential in the response of the builder to the complaints, but that was left largely unexplored by the builder during the hearing, is whether the roof was complete at the date of practical completion. We repeatedly reminded Mr Graham during the hearing that an essential element to the defence of the builder was whether the roof was finalised by the owner after practical completion and what evidence could be presented in support of such a contention.
He did not, however, pursue this contention by reference to any relevant material. We therefore accept the evidence of the owner that the roof was complete by the middle of May 2014 - Al56 - that the skylights were installed before 6 June 2014, and prior to the expiry of the building licence, on 3 July 2014, and therefore prior to the date of practical completion. The proposition by Mr Graham that the works were not defective, but, rather, incomplete, flies against the evidence before us and is not supported by any evidence of the builder.
[24] First Sartzidis Affidavit Attachment TS-16 page 294.
The decision identified as Issue 12 'could the defects the subject of this complaint have been caused by someone else?' and said:[25]
The builder suggested that someone else working on the roof may have caused the defects, for example, the persons who completed the roof, or those who undertook previous remedial work, or persons who installed solar panels or satellite reception.
This is purely speculative and is rejected. We find so for the following reasons: first, the builder did not inspect the roof and could not identify any of the complaint items that may have been caused by another person. Second, we accept the evidence of Mr Martelli that the complaints are related to the original construction of the roof and that it was not compliant with the building code of Australia. And, third, the owner explained, to our satisfaction, who attended to the roof, when they attended and the work they had done.
[25] First Sartzidis Affidavit Attachment TS-16 page 295.
The decision identified as Issue 13 'Is there an overlap or double-up between previous remedial orders of SAT and these complaints?' and said:[26]
The builder says that two previous proceedings in SAT regarding this house, matters CC 362 of '16 and CC 1387 of '19, had awarded the costs of remedial work to the owner she either did not utilise the money for the work or the work undertaken turned out to be faulty by itself.
The builder claims the works now submitted are therefore, in effect, similar to the previous claims and should be dismissed. The owner denies that the new claims are a repeat or a double-up of the previous claims. She filed the useful table on 8 February 2024, at our invitation, to show that two of the complaints, items 2 and 12 are in the same location as the previous claims, and had a slight overlap, and that the remedial costs awarded previously had been deducted from the current claim, but that the other claims are new and not related at all to the previous claims.
She showed, by way of comparison, A137 to 155, why the current complaints do not overlap with the previous complaints. She says, furthermore, that the previous claims were merely to address some of the most urgent ceiling and the remedial work did not include rectifying the underlying workmanship that, according to Mr Martelli, does not comply with Australian Standards. She says that she is entitled to bring these new claims since she had only become aware of these deficiencies after the inspections of Mr Martelli and Golden Ridge Roofing.
We note that Building and Energy, in their letter of 2 March 2021, also noted that the items in the complaint, "have not been satisfied by way of SAT monetary order delivered February 2017, at page A73. We are satisfied that the complaints the subject of this proceeding are, indeed, new complaints that have not been the subject of previous SAT proceedings. We find so for the following reasons: first, the builder had not been able to provide evidence in support of its proposition that these complaints and previous complaints overlap, and we note that CC 1387 of 2019 had no bearing on the current complaint items, while CC 362 of 2016 related to the same areas, but to different deficiencies.
Second, the builder did not undertake an inspection of the previous work or the new complaints to ascertain if there is, indeed, an overlap of complaints. And, third, Mr Martelli confirmed that the complaints the subject of this proceeding had to do with the substantial structure of the roof and could not have been remedied by the previous remedial orders that basically only provided for temporary waterproofing and completion of downpipes.
We therefore find that the complaints the subject of this proceeding are new and consistent with the explanation given by the owner in Al37 to 155, as summarised in the table of 8 February 2024.
[26] First Sartzidis Affidavit Attachment TS-16 pages 295 - 296.
The decision identified Issue 18 as 'complaint items and potential overlaps with previous claims' and said:[27]
Since the builder does not take issue with the expert report of Mr Martelli, we accept his opinion and recommendations for work to be done in A98 to 133, dated 15 July 2022. In response to the concern expressed by the builder of an overlap between current complaints and previous complaints, we accept the evidence of the owner - A137 to 155 - in which she explains clearly and meticulously, why there is no overlap between the current proceeding and previous proceedings.
[27] First Sartzidis Affidavit Attachment TS-16 page 299.
I have quoted significant excerpts from the reasons for decision of the Tribunal. It was important to do so for this reason - those excerpts demonstrate that the Tribunal afforded the builder procedural fairness in allowing Mr Graham, on his behalf, to advance every argument he sought to, including those relating to the matters categorised in this appeal as Issues 1 and 2. Contrary to the ground of appeal and the builder's submissions in support thereof, he was not prevented from advancing those arguments nor prevented from filing documents in support of those arguments.
I also make these observations, the third Tribunal proceedings were delayed on numerous occasions, primarily at the request of the builder or because of the failure of the builder to comply with directions of the Tribunal. The Tribunal granted the builder several indulgences. It was entirely reasonable and appropriate for various Tribunal members to refuse to accept large volumes of material from the builder without any accompanying document outlining their relevance. Nonetheless, despite various directions requiring documents to be filed in a concise and coherent way and to limit the documents filed to narrow the issues, the builder was ultimately permitted to file a hearing bundle that contained documents relating to Issues 1 and 2 and to advance arguments in relation to Issues 1 and 2 at the substantive hearing. The builder could not substantiate his contention that he removed documents at the direction of the Tribunal which went to Issues 1 and 2. The examples given of what he would have argued, are things that he actually argued, and the documents he said he would have relied on, were actually before the Tribunal (or were never before the Tribunal in the first place).
The builder did eventually file an affidavit outlining the errors he had made in evidence adduced, and in providing instructions upon which submissions were made, at the appeal. This was an unsatisfactory and costly way to conduct the appeal. I make no criticism of the counsel or solicitors for the builder in making this observation. They were dependent upon the instructions of the builder - those instructions were in error. Those errors were not minor - they were catastrophic to the builder's appeal and ought to have been evident to the builder given they went to the very foundation of his ground of appeal.
It is evident from the transcripts of several direction hearings conducted in the Tribunal that members of the Tribunal, on numerous occasions, expressed concern at the costs of the proceedings being disproportionate to the amount in dispute. I echo their concerns; however, those concerns are now amplified. The costs of this appeal have, no doubt, dwarfed the costs initially in dispute.
The builder's appeal is doomed to fail - the builder has no real or significant argument to put that he was denied procedural fairness.
Leave to appeal is therefore refused. Parties ought to confer and if orders cannot be agreed, short submissions in relation to costs, together with a minute of proposed orders are to be filed within seven (7) days.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CS
Associate to the Hon Justice Whitby
14 MARCH 2025