STOKES and GUN CONTROL PTY LTD - [2020] WASAT 14

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   STOKES and GUN CONTROL PTY LTD [2020] WASAT 14
MEMBER:   MS R MOORE, MEMBER
MR R WOODFORDE, SESSIONAL MEMBER

HEARD:   25 NOVEMBER 2019
DELIVERED          :   28 JANUARY 2020
FILE NO/S:   CC 1385 of 2019
CC 963 of 2019

BETWEEN: ROBERT STOKES
First Applicant
EMMA LOUISE STOKES
Second Applicant
AND
GUN CONTROL PTY LTD
Respondent

Catchwords:

Building services complaint - Floor tiling - Regulated building service - Whether carried out in a proper and proficient manner or faulty or unsatisfactory - Whether building remedy order should be made

Legislation:

Building Act 2011 (WA), s 3
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5, s 11, s 36, s 38, s 43
Home Building Contracts Act 1991 (WA), s 3
State Administrative Tribunal Act 2004 (WA), s 51(1)

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):

Danze and Builders' Registration Board of Western Australia [2008] WASAT 10
Diploma Construction (WA) Pty Ltd v South Central WA Pty Ltd [2015] WASC 289

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction and background

These proceedings involve a complaint made under s 5 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (Building Services Act) which was referred to the Tribunal by the Building Commissioner pursuant to s 11 of the Building Services Act.
On 13 December 2018 Mr and Mrs Stokes (applicants) made a complaint to the Building Commissioner about work carried out by Gun Control Pty Ltd (respondent) at their home at No 15 Elizabeth Street, White Gum Valley. The complaint was accepted by the Building Commissioner on 21 December 2018. The work involved the laying of floor tiles (supplied by the applicants) to areas of their home. Their original complaint included eight items of alleged unsatisfactory workmanship as follows:
1)poor installation of tile edge trims to the main floor tiling;
2)lippage tiles to main floor tiling;
3)lack of movement joints in the main floor tiling system;
4)tile pattern is not consistent in the meals and kitchen areas;
5)variation in the grout joint widths to all tiled rooms;
6)multiple holes in grout;
7)protective film left on tile trims; and
8)gap in tile trim to tile trim in lounge area.
Prior to the matter being referred to the Tribunal, complaint item no 3 (lack of movement joints) was withdrawn by the applicants.
On 25 June 2019 the Building Commissioner referred the matter to the Tribunal for determination for the following reasons:
1.Both parties contest the remedial actions in the Building & Energy Division's Amended Proposed Building Remedy Order.
2.Conciliation proceedings were unsuccessful.
On 23 July 2019 the Tribunal granted the applicants leave to withdraw complaint item no 6 (multiple holes in grout) and referred the matter to mediation. A mediation was held on 16 September 2019 but was unsuccessful.
In August 2019 the applicants re-lodged their complaint regarding a lack of movement joints in the main floor tiling system which they had previously withdrawn from the original complaint. This complaint was accepted by the Building Commissioner and referred to the Tribunal on 4 September 2019 to be dealt with at the same time as the original complaint. For clarity, CC 963 of 2019 is the original complaint minus complaint items no 3 and no 6, and CC 1385 of 2019 is the original complaint item no 3 relating to a lack of movement joints.
At a directions hearing held on 10 October 2019, the Tribunal made orders programming the matter to a final hearing. The Tribunal ordered that pursuant to s 51(1) of the State Administrative Tribunal Act 2004 (WA) the two matters, CC 963 of 2019 and CC 1385 of 2019, were to remain as separate proceedings but were to be heard and determined together with evidence in one proceeding to be evidence in the other proceeding.
The Tribunal made orders relating to the filing of documents and evidence, including expert evidence. The Tribunal also made the following two orders:
…
8.The final hearing on 25 November 2019 is limited to deciding as preliminary matters the following issues:
(a)Whether the complaints are substantiated, in that they complain of a building service which has not been carried out in a proper and proficient manner or which is faulty and/or unsatisfactory; and
(b)If the Tribunal finds that one or more of the complaints are substantiated, the nature and scope of the remedial work which is required to be performed in order to remedy the complaint items.
9.It is noted that a separate hearing will be listed for the Tribunal to receive evidence and submissions on the issue of the exercise of its discretion as to whether, if a remedy is to be ordered, it should be in the nature of requiring specified work to be performed by the respondent or whether it should be in monetary terms.

Relevant provisions of the Building Services Act

The applicants made the complaint under s 5 of the Building Services Act which allows a person to make a complaint to the Building Commissioner about a regulated building service not being carried out in a proper and proficient manner or being faulty or unsatisfactory.
Under s 3 of the Building Services Act, a 'regulated building service' means any of the following:
(a)a building service carried out by a registered building service provider or an approved owner-builder;
(b)home building work that is -
(i)carried out by a person for another person under a home building work contract or other contract or arrangement for gain or reward; and
(ii)not carried out for a person who is in turn obliged to perform the work under another contract;
(c)any other service or work prescribed for the purposes of this definition;
The definition of 'building service' in s 3 of the Building Services Act refers to 'building work' as defined in s 3 of the Building Act 2011 (WA) (Building Act), as well as demolition work and plumbing work. 'Building work' is defined in s 3 of the Building Act as meaning:
(a)the construction, erection, assembly or placement of a building or an incidental structure; or
(b)the renovation, alteration, extension, improvement or repair of a building or an incidental structure; or
(c)the assembly, reassembly or securing of a relocated building or a relocated incidental structure; or
(d)the changing of ground levels of land for the purposes of work of a kind mentioned in paragraph (a), (b) or (c) to an extent that could adversely affect land beyond its boundaries; or
(e)site work on any land for the purposes of, or required because of, work of a kind mentioned in -
(i)paragraph (a), (b), (c) or (d); or
(ii)paragraph (a) or (b) of the definition of demolition work;
or
(f)other prescribed work,
but does not include work of a kind prescribed for the purposes of this definition as not being building work[.]
Section 3 of the Building Services Act defines 'building service Act' as meaning any of the following:
(a)this Act;
(b)the Building Act 2011;
(c)the Building Services (Registration) Act 2011;
(d)the Construction Contracts Act 2004;
(e)the Home Building Contracts Act 1991;
(f)the Plumbers Licensing Act 1995 Part 5A;
(g)the Local Government (Miscellaneous Provisions) Act 1960 Parts VIII, IX and XV;
(h)any other enactment prescribed for the purposes of this definition[.]
Section 3 of the Home Building Contracts Act 1991 (WA) (Home Building Contracts Act) defines 'home building work' as meaning the whole or part of the work of:
(a)constructing or re-constructing a dwelling including an existing dwelling and/or strata-titled dwelling; or
(b)placing a dwelling on land; or
(c)altering, improving or repairing a dwelling, including a stratatitled dwelling; or
(d)constructing or carrying out any associated work in connection with -
(i)any work referred to in paragraph (a) or (b); or
(ii)an existing dwelling, including a strata-titled dwelling[.]
There is no dispute between the parties that the installation of floor tiling as undertaken by the respondent is a regulated building service for the purposes of the Building Services Act. The Tribunal is of the view that, in this case, the floor tiling the subject of these proceedings involves the renovation, alteration or improvement of a building and therefore falls under the definition of 'building work' as defined under the Building Act. The tiling can also be considered to be the alteration or improvement of a dwelling and therefore satisfies the more specific definition of 'home building work' under the Home Building Contracts Act (one of the suite of building services Act).
This view is supported by Danze and Builders' Registration Board of Western Australia [2008] WASAT 10 where the Tribunal, in the discussion of the work of a tiler, referred to tiling as a finishing trade and found at [40] that:
Tiling placed on concrete floors and walls therefore constitutes adding to or improving the walls and structural parts of a building within the meaning of the work of a builder as discussed above.
The Tribunal is therefore satisfied that the tiling work undertaken by the respondent at the home of the applicants in accordance with the contract agreed to by the parties is a regulated building service for the purposes of the Building Services Act.
A referral to the Tribunal by the Building Commissioner under s 11 of the Building Services Act may be dealt with by the Tribunal under s 38 (for workmanship complaints) or s 43 (for contractual complaints). These matters are building service complaints as they raise only workmanship issues and as such, pursuant to s 38 of the Building Services Act, the Tribunal may:
…
(a)if the Tribunal is satisfied that the regulated building service that is the subject of the building service complaint has not been carried out in a proper and proficient manner or is faulty or unsatisfactory, deal with the building service complaint by making a building remedy order; or
(b)otherwise, decline to make a building remedy order[.]
Section 36 of the Building Services Act deals with building remedy orders and provides that:
(1)A building remedy order consists of one of the following -
(a)an order that a person who carried out a regulated building service remedy the building service as specified in the order;
(b)an order that a person who carried out a regulated building service pay to an aggrieved person such costs of remedying the building service as the Building Commissioner or State Administrative Tribunal, as the case requires, considers reasonable and specifies in the order;
(c)an order that a person who carried out a regulated building service pay to an aggrieved person a sum of money specified in the order to compensate the aggrieved person for the failure to carry out the building service in a proper and proficient manner or for faulty or unsatisfactory building work.
(2)A building remedy order may require that the order be complied with within a time specified in the order.
(3)A person who is not a building service contractor may arrange for a building service to be carried out for the purpose of compliance by that person with a building remedy order referred to in subsection (1)(a) despite the Building Services (Registration) Act 2011 section 7.

Relevant principles

The dispute arises because the applicants contend that the tiling work undertaken by the respondent at their home was not carried out in a proper and proficient manner or is faulty or unsatisfactory. The respondent disputes this.
In original jurisdiction proceedings such as this, the onus is on the applicants to satisfy the Tribunal that the items of complaint were part of the regulated building service and were not carried out in a proper and proficient manner or were faulty or unsatisfactory. The standard of proof is that the Tribunal must be satisfied that on the balance of probabilities, it is more likely than not, that the respondent is liable for carrying out the alleged items of work as part of the service contracted for, and that the works were not carried out in a proper and proficient manner, or were faulty or unsatisfactory as alleged.
In this case, the Tribunal is satisfied that the respondent was contracted to lay approximately 75m² of wood-look tiles at the applicants' home. The respondent supplied the tile adhesive and aluminium tiling trim. The applicants supplied the tiles and the grout. The tiles were 1200 by 200mm Portobello rectified glazed porcelain tiles with a woodlook grain finish.
In Diploma Construction (WA) Pty Ltd v South Central WA Pty Ltd [2015] WASC 289, Mitchell J found at [31] that the Building Services Act does not expressly limit the reasons why a regulated building service may be regarded as unsatisfactory and that the phrase 'has not been carried out in a proper or proficient manner or is faulty or unsatisfactory' is a broad expression apt to cover a wide range of deficiencies in the construction of a building which can be taken into account.

Hearing and evidence

At the final hearing the Tribunal received into evidence a 'Building Disputes Document Booklet' for each separate matter.
The CC 963 of 2019 booklet (Exhibit 1) contains 443 pages, with many document duplications. In summary, the booklet included the following:
•Building Commissioner's referral of the matter to the Tribunal in accordance with s 11 of Building Services Act including all documents provided by the parties to Building and Energy;
•applicants' submissions including correspondence between parties;
•respondent's submissions including correspondence between parties;
•photographs taken by the applicants;
•photographs taken by the respondent;
•orders made by the Tribunal; and
•transcript of Tribunal directions hearing held on 10 October 2019.
The CC 1385 of 2019 booklet (Exhibit 3) contains 93 pages and included the following documents:
•Building Commissioner's referral of the matter to the Tribunal in accordance with s 11 of Building Services Act including all documents provided by the parties to Building and Energy;
•applicants' submissions including correspondence between parties;
•respondent's submissions including correspondence between parties;
•photographs taken by the applicants;
•photographs taken by the respondent;
•orders made by the Tribunal; and
•transcript of Tribunal directions hearing held on 10 October 2019.
The Tribunal also received further submissions from the applicants dated 21 November 2019 which the Tribunal accepted had not been included in the booklets prepared for hearing and marked them as Exhibit 2.
Both parties were self-represented, and each gave evidence and made oral submissions at the hearing. The parties also presented expert evidence.
The applicants submitted a report by Tilespec Tiling Consultants dated 26 October 2019, prepared by Mr Stephen Needs, a tiler and registered builder (pages 218-235, Exhibit 1). The respondent submitted a report by Ceramic Consultants dated 1 August 2019, prepared Mr Alex Bonini, a ceramic consultant (pages 405-415, Exhibit 1).
In addition, the respondent presented evidence from Mr Deane Forder, a civil engineer, in the form of a letter dated 9 September 2019 which addressed the requirements of Australian Standard 3958.1-2007 (AS 3958.1) in respect to movement joints, lippage tolerances and the requirements for fitting tile trim.
Mr Forder attended the hearing by telephone. The Tribunal accepted Mr Forder's opinion evidence in relation to complaint item no 3 (CC 1385 of 2019) on the basis that he has a bachelor degree in Civil and Construction Engineering from Curtin University and professional experience consulting to architects, building designers and insurers in civil and structural design. The Tribunal did not accept his evidence in relation to the interpretation of cl 5.4.6(a) and cl 5.4.3(h) of AS 3958.1 which refer to lippage tolerances for tiles and the fitting of tiles and accessories more generally. This is because while Mr Forder has a Postgraduate Certificate in Commercial Law from Murdoch University, he does not have direct experience in the laying of floor tiles in a domestic setting. Also, the interpretation of a standard (or document) is not considered to be a question of evidence unless Mr Forder was involved in the preparation of the document or could give evidence regarding the customary meaning of terms used in the relevant industry. As to the proper interpretation of the standard, the document must be understood having regard to its text using its ordinary meaning and in the context of the document as a whole.
The two tiling experts, Mr Needs and Mr Bonini, gave their oral evidence concurrently.
The Tribunal will now discuss the evidence in relation to the individual complaint items.

Complaints and Tribunal findings

Complaint item no 1 - poor installation of tile edge trims to the main floor tiling

The applicants submit that the tile edge trims to the main floor tiling have been poorly installed because there are differences between the height of the tiles and the height of the trim in some locations. The respondent submits that the work complies with AS 3958.1 as the only reference to trim is in cl 5.4.3(b) which recommends that tiles are fitted closely to the trim. At the hearing, the respondent also expressed his concern that the applicants were originally very happy with the tiling job but then after a week they complained to him about the tile trim and lippage, and then later about the tile pattern, and when he attempted to resolve the matter they said they would like the aluminium finish trim replaced with black trim.
Clause 5.4.3 of AS 3958.1 states the following:
5.4.3Fitting
The cutting and fitting of tiles and accessories should be carried out as follows:
(a)Cut edges smooth and install the tile without jagged or flaked edges.
(b)Fit the tile closely where the edges will be covered by trim, escutcheons or other similar devices.
(c)Do not install single tiles in more than one piece unless no alternative is possible.
(d)Unless otherwise specified, maintain the heights of wall tile work in full courses to the nearest obtainable dimension.
(e)With due allowance to tolerances for the tiles, make the corners of all tiles flush and level with corners of adjacent tiles.
(f)Keep all joint lines, including mitres, straight and of even width, with due allowance for the tolerance of the tile.
(g)Fully bed all trim units, moulded or shaped pieces, nosings, covers and other accessories with an appropriate bedding material. Do not bed these accessories in more than 3 mm of neat cement.
(h)Fix accessories in tile work level, plumb and true to the designated projection. Where specified, install accessories at the appropriate locations and heights.
Finished tile work should be clean and free of pitted, chipped, cracked or scratched tiles resulting from the fixing operation.
In his report, Mr Needs said that the tile trim installed against the carpet in the family room and against the bedroom/theatre thresholds had not been installed flush and level with the top of the sharp cut floor tiles. It was Mr Needs' opinion that the installed tile trim was the wrong size for the purpose and should be replaced. He gave examples of locations where there were differences in height of up to 2.8mm. In oral evidence he said that he would expect the tile trims to be finished flush and level with the tiles however he said that a 0.5mm height difference would be acceptable.

Mr Bonini measured the maximum height difference to be 1.5mm and said that the tiles used 'have not been ground flat and may vary in length, width, thickness, straightness of sides, rectangularity and surface flatness' (page 406, Exhibit 1). In his report, Mr Bonini refrained from drawing a conclusion of compliancy or noncompliancy with AS 3958.1 in relation to the tile trim installation because he said that it is outdated and does not address current installation techniques and manufacturing processes. However, in oral evidence, it was Mr Bonini's opinion that approximately 50% of the tile edge trims are flush and the remainder vary. He agreed that technically Mr Needs was correct but said that when cutting and staggering tiles they may warp so it can be difficult to maintain a straight flush edge and that the manufacturer's standards allow for 1.8mm over the length of the tile. Mr Bonini said that he would recommend a tile trim of between 10 and 12mm.
In considering the evidence from Mr Needs and Mr Bonini, the Tribunal accepts that AS 3958.1 does not specifically address the installation of these particular type of tiles and may be outdated in some areas. It was common ground that the tiles supplied by the applicants, and laid by the respondents, were not commonly used when AS 3958.1 was first published in 2007 and while AS 3958.1 has been updated since then, it has not been updated to specifically refer to these types of tiles. That said, the recommendations contained in Australian Standards are only one factor in the assessment of whether a regulated building service has been carried out in a proper and proficient manner and is considered to be satisfactory. In this case, the Tribunal relies on the evidence of both experts, particularly in regard to current industry practice, and finds that the tile trim should be finished to within 0.5 to 1.0mm of level with the top of the adjacent tiles along both the short and long sides of the tiles.
The Tribunal is of the view that the respondent installed the incorrect sized tile trim of 10mm for use with a 10.5mm tile. The Tribunal is satisfied that, on the balance of probabilities, the building work has not been carried out in a proper or proficient manner and is faulty or unsatisfactory as alleged. The Tribunal therefore finds that a building remedy order can be made in relation to complaint item no 1. The Tribunal would make a building remedy order requiring all trims not installed to a height that is within 1.0mm of an adjoining tile to be replaced.

Complaint item no 2 - lippage tiles to main floor tiling

The applicants submit that there are areas of tiling that are not level and have excessive lippage. The respondent disagrees with this.
Mr Needs was of the opinion that the tolerance for lippage for these type of tiles is 1mm and said that 80 to 85% of the tiles are within 1.0mm and are satisfactory. It was Mr Needs' view that 2mm is unsafe because of the sharp edge of this type of tile.
Mr Bonini said he observed nine instances of noticeable lippage during his site inspection and of those nine instances only one instance of lippage was measured in excess of 2mm. It was Mr Bonini's opinion that 2mm is the permitted tolerance for this type of tile in accordance with cl 5.4.6 of AS 3958.1.
Clause 5.4.6 of AS 3958.1 states the following:
5.4.6Tile finish and joints
The recommendations for tile finish and joints are as follows:
(a)When measured with a straightedge, the finished surface of the tiling should be flat and true to within a tolerance of ±4 mm in 2 m from the required plane. The lippage between two adjacent tiles should not exceed 2 mm. In the case of tiles where the surface has been ground flat, for example polished tiles, the lippage should not exceed 1.5 mm, and for joint widths of 3.0 mm or less the lippage should not exceed 1.0 mm.
While it may be the case, as suggested by Mr Needs, that current industry practice is that 1.0mm of tile lippage is permissible in many circumstances, cl 5.4.6(a) of AS 3958.1 does allow for lippage of up to 2mm. The Tribunal finds that those tiles with lippage in excess of 2mm should be replaced. On the evidence before the Tribunal, there is only one instance of this occurring.
The Tribunal is satisfied that, on the balance of probabilities, the building work has not been carried out in a proper or proficient manner and is faulty and unsatisfactory in relation to one instance of lippage between adjacent tiles. The Tribunal therefore finds that a building remedy order can be made in relation to complaint item no 2. The Tribunal would make a building remedy order requiring tiles with lippage in excess of 2mm (and any adjacent tiles if necessary) to be removed and re-laid.

Complaint item no 3 - lack of movement joints in the main floor tiling system

This complaint was withdrawn by the applicants and re-lodged as complaint item no 1 of CC 1385 of 2019.
The applicants submit that the respondent should have installed movement joints in the floor tiling. The respondent disagrees and submits that there is no need for movement joints in the area that has been tiled.
Mr Needs was of the opinion that because the tiling area exceeds a dimension of 9 metres there should be movement joints within the tiling as well as perimeter joints as specified in cl 5.4.5.2(b) and (c) of AS 3958.1.
Mr Forder was of the opinion that structural movement joints would not be expected to have been installed within the concrete slab (on which the tiles were laid) because of the small size of the slab and the assumed geotechnical site classification. It was Mr Forder's view that the temperature differentials between the two possible heat sources (sunlight through the rear windows and radiant heat from the wood burning stove) 'would not be of great enough magnitude or significance to induce differential stresses outside of the elastic performance of the modified flexible tile adhesive utilised' (page 401, Exhibit 1). Mr Forder's conclusion was that:
With such a small level of thermally induced differential movement expected, the stable concrete substrate, the age of the concrete substrate, the use of a rubber modified non slump flexible adhesive installed in accordance with the recommendations in AS3958.1-2007, and the fact the tiling installation has been through a seasonal cycle with no damage, I would expect that the stresses experienced over the installation distances will be with[in] the bonded capabilities of the flexible adhesive and the material characteristics of the tiles and an expansion joint would not be necessary.
The same will apply with respect to perimeter joints that occur at the base of internal walls separated by a cavity from external walls. The perimeter joints will experience such a small level of thermally induced differential movement that this can be expected to be accommodated by the flexible grout used, and explains why omission of perimeter joints in tiling installations in residential properties in Perth is commonplace.
(pages 401-402, Exhibit 1)
While the Tribunal notes that cl 5.4.5.2(b) and (c) of AS 3958.1 does refer to the provision of intermediate movement joints and perimeter joints in situations which could include the tiled floor area the subject of this review, we are satisfied that movement joints are not required in this instance. This is because the concrete slab is older than 10 years and, on Mr Forder's evidence which was not contradicted, is not likely to experience much more shrinkage or movement. It was common ground that a flexible adhesive and flexible grout had been used. Also, the applicants gave evidence that they had not had issues with the previous tiles laid on this concrete floor even though there were no movement joints. And finally, the tiles have been in place for more than one year (through all seasons) and there have been no identified issues resulting from a lack of movement joints.
The Tribunal is not satisfied that, on the balance of probabilities, the building work has not been carried out in a proper or proficient manner and is faulty or unsatisfactory in relation to the lack of movement joints and declines to make a building remedy order in relation to this complaint.

Complaint item no 4 - tile pattern is not consistent in the meals and kitchen areas

The applicants submit that the tile pattern in the meals and kitchen area is inconsistent with the tile pattern in other areas because the pattern, while still offset 300mm, runs in a different direction. It was their evidence that there was not a lot of discussion about the tile pattern prior to the tiles being laid.
The respondent was concerned that issues about the tile pattern were not raised by the applicants until a week after the initial concerns about the trim and lippage were raised. He agrees that some of the tiles have been laid in a different direction but contends that they are still offset by 300mm and may have been laid this way to maximise the use of offcuts and minimise waste. The respondent also submits that the contract between the parties did not specify a particular pattern and that AS 3958.1 does not cover tile set out requirements.
It was Mr Needs' opinion that two areas at the rear of the home near the intersection of the meals and family rooms as illustrated in 1.2 of his report (page 219, Exhibit 1) and the kitchen and passage have a noticeable change in the tile pattern. Mr Needs was of the view that the set out pattern should not be changed unless specified.
Mr Bonini said this was a moderate issue as wood-look tiles are laid in a random pattern. Mr Bonini was of the view that there had been no breach of any mandatory requirements or departure from AS 3958.1 and no evidence of an agreement between the parties in regard to the tile pattern.
The Tribunal agrees that AS 3958.1 does not regulate the tile pattern and there was no agreement between the applicants and the respondent in respect to the precise details of the tile pattern set out. The change in tile pattern is not deplorable, however it is unusual for a tile set out pattern to change in this way without clear instructions or specification. The Tribunal is of the view that some tiles should be removed in these areas so as to randomise the layout to make the change in pattern less visually obvious. The extent of this work is to be discussed in more detail when a building remedy order is made.
The Tribunal is satisfied that, on the balance of probabilities, the change in tile pattern set out is below industry standards and has not been carried out in a proper or proficient manner and is faulty and unsatisfactory as alleged. The Tribunal therefore finds that a building remedy order can be made in relation to complaint item no 4.

Complaint item no 5 - variation in the grout joint widths to all tiled rooms

The applicants submit that the grout joint widths vary and there are a number that are less than the 1.5mm as specified by the tile manufacturer. The respondent submits that the grout joint widths are satisfactory and that he was not given the manufacturer's installation specifications.
In his report, Mr Needs recommended that all grout joints should be a minimum of 1.5mm wide. In oral evidence, Mr Needs said that a lot of the joints were satisfactory with the exception of four end-to-end tiles in the kitchen, which he considered to be unsatisfactory (under 1mm), and three short cut tiles which are twisted in their setting. In summary, Mr Needs was of the opinion that a total of seven tiles needed to be relaid because of the variation in grout joint widths.
In his report, Mr Bonini concluded that there was one tile in the kitchen area that had a grout joint width that was not consistent with the remainder of the tiles. However, in his oral evidence, it was Mr Bonini's view that three tiles should be removed and re-laid (one in the kitchen which is skewed) and two others.
While the manufacturer's instructions specify joint widths of 1.5mm, these were not given to the respondent before he quoted or before the tiles were laid, and even if they had been, the Tribunal regards them as recommendations not requirements.
While disagreeing on the number of problematic joints, the experts agreed that there were some that were unsatisfactory. Based on the expert evidence before it, the Tribunal is satisfied that between three and seven of the tiles have unsatisfactory grout joint widths. The Tribunal therefore finds that a building remedy order can be made in relation to complaint item no 5. The Tribunal would make a building remedy order requiring the seven problematic tiles to be removed and re-laid with a grout joint that will blend with the remainder of the floor tiling.

Complaint item no 6 - multiple holes in grout

This complaint was withdrawn by the applicants.

Complaint item no 7 - protective film left on tile trims

The applicants submit that there are areas of protective film left on some of the tile trim. The respondent has agreed to remove any protective film on the tile edge trim after the resolution of the other complaints.
The Tribunal would make a building remedy order requiring any remaining protective film to be removed from tile trims by the respondent without causing damage to adjoining surfaces, and if the tile trim is to be replaced (as per complaint item no 1), remove all protection before the trims are installed.

Complaint item no 8 - gap in tile trim to tile trim in lounge area

Mr Bonini agreed with Mr Needs that the gap in the tile trim in the lounge area does not comply with cl 5.4.3(h) of AS 3958.1. However, Mr Bonini did say that the gap could be filled with material and was mechanically sound.
The Tribunal, which has specialist experience in building matters, is of the view that as tile trims are readily available in 3 metre lengths there is no reason for there to be a join in any trim length under 3 metres, particularly as it is easier and cheaper to install tile trims in single lengths than to join them unnecessarily. The Tribunal is unsure of the length of the trim to the lounge area but if it is less than 3 metres in length it should be replaced with a full length trim. This is because it is difficult to maintain fill in a small gap in tile trim and it is aesthetically undesirable and unsightly to have an unnecessary join in tile trim under 3 metres in length. Therefore, it is likely that the Tribunal would make a building remedy order requiring the tile trim to be replaced with a full length.

Conclusion

CC 963 of 2019

The Tribunal is satisfied that the regulated building service, the subject of these proceedings, has not been carried out in a proper and proficient manner and is faulty or unsatisfactory. The Tribunal would make a building remedy order in respect of CC 963 of 2019 complaint item nos 1, 2, 4, 5, 7 and 8 in the terms discussed above. In accordance with the orders made by the Tribunal on 10 October 2019, the matter is to be listed to a final hearing on the nature of the building remedy order - that is, whether the building remedy order should require specified work to be performed by the respondent or whether it should be in monetary terms.

CC 1385 of 2019

The Tribunal is not satisfied that the tiling work required movement joints and therefore declines to make a building remedy order in respect of the complaint in CC 1385 of 2019.

Orders

For these reasons the Tribunal orders that:
CC 963 of 2019
1.The matter is listed to further directions hearing to programme the matter for hearing on what form of building remedy order should be made given the Tribunal findings in relation to the complaints.

CC 1385 of 2019
1.The Tribunal declines to make a building remedy order in respect of this complaint and the complaint is hereby dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R MOORE, MEMBER
28 JANUARY 2020

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Citations

Stokes and Gun Control Pty Ltd [2020] WASAT 14

Cases Citing This Decision

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Cases Cited

2

Statutory Material Cited

4

DANZE and Builders' Registration Board Of Western Australia [2008] WASAT 10

Diploma Construction (WA) Pty Ltd v South Central WA Pty Ltd [2015] WASC 289