| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA) CITATION : TEO and GOJKO MARICIC TRADING AS G & MS MARICIC BUILDING CO [2013] WASAT 166 MEMBER : MS J MCGOWAN (SENIOR SESSIONAL MEMBER) MR C MARSH (SESSIONAL MEMBER)
HEARD : 4 SEPTEMBER 2013 DELIVERED : 10 OCTOBER 2013 FILE NO/S : CC 119 of 2013 BETWEEN : CHIANG HOWE WAYNE TEO Applicant
AND
GOJKO MARICIC TRADING AS G & MS MARICIC BUILDING CO
Respondent
Catchwords: Jurisdiction - Section 6(1) of the Building Services (Complaint Resolution and Administration) Act - What is the building service to which the complaint relates? - Repairs
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Legislation: Builders Registration Act 1939 (WA), s 12A
Building Act 2011 (WA), s 3, s 33(1), s 39, s 178
Building Code of Australia Volume 2 2006
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(1), s 6, s 11(d), s 36(1)(b)
Building Services (Complaint Resolution and Administration) Regulations 2011 (WA), reg 7, reg 7(a)
Building Services (Registration) Act 2011 (WA), s 107 Result: In relation to complaint item 1, the respondent must pay the applicant $792 within 14 days of this order
The Tribunal has no jurisdiction to make a building remedy order in relation to complaint item 2 and complaint item 3
Summary of Tribunal's decision: The applicant was the second owner of a house built by the respondent. The house was completed sometime in 2006. The first owner, Mr Bolton, lived next door to the applicant. The applicant told both Mr Bolton and the respondent about rising damp to outside piers/columns. Mr Bolton was on friendly terms with the respondent, an elderly man in poor health and with a poor command of English, and liaised with the applicant regarding repairs to the rising damp. Having commissioned a report and quotation from a business specialising in rising damp, Mr Bolton then arranged for repairs to be undertaken in 2011 by a contractor who lived over the road. The Tribunal found that Mr Bolton was acting as the respondent's agent in arranging that repair work.
The applicant made a complaint to the Building Commission about rising damp to piers, a garage wall and a balcony pier on 21 November 2012. He was seeking an order that the respondent pay the costs of rectifying these items.
The respondent said that the applicant's complaint was made more than six years after the completion of the regulated building service to which the complaint relates, being the construction of the house. Construction work was last carried out before late June 2006.
The applicant said that the regulated building service to which his complaint related was the repair work undertaken in February 2011. The Tribunal found that some of the items in his complaint had been repaired. That
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repair work was faulty or unsatisfactory, or was not done proficiently. The applicant's complaint about the items that had been repaired was made within the six years timeframe required. An order was made that the respondent pay the applicant's reasonable costs of repairing these items.
The complaint about the items that had not been repaired was not made within six years of the completion of the construction of the house and so were not items about which the Tribunal had jurisdiction to make an order.
Category: B
Representation: Counsel:
Applicant : Self-represented
Respondent : Mr A Searle
Solicitors:
Applicant : Self-represented
Respondent : Doyles Construction Lawyers
Case(s) referred to in decision(s):
Braham v Evans [2008] WASC 274
Content Living Pty Ltd v MacIntosh & Anor [2005] WADC 173
Owners of Strata Plan No 46493 and Smith [2012] WASAT 41
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REASONS FOR DECISION OF THE TRIBUNAL:
Background 1 On 3 May 2005, the City of Melville (City) issued a building license (BA2005/613) to G & MS Maricic Building Co (respondent or Mr Maricic) for the construction of a two storey single dwelling at No 3 Cowan Street, Alfred Cove (house). The house was to be constructed for J (Jill) and G (Graham) H Bolton (the Boltons). It was the third house built for the Boltons by the respondent. It was built on one half of a subdivided block, both of which were owned by the Boltons. 2 The building work to be undertaken to construct the house was the subject of a cost plus contract entered into between the respondent and the Boltons on 29 April 2005 (pages 184 - 200 of the hearing booklet (HB)). 3 In due course, construction of the house was completed. The respondent says this was in late June 2006. Mr Chiang Howe Wayne Teo (applicant or Mr Teo) says the completion date was on 26 November 2006. The Boltons lived in the house for a short time while they built a second house on the other half of the block. They then sold the house to the applicant in these proceedings. 4 The Boltons eventually moved into the second house and so the applicant and his wife and the Boltons became next door neighbours. The applicant said that in or about November 2010, he approached Mr Bolton with regard to rising damp evident on some external columns at the house. In early December 2010, the applicant commissioned a building inspection and report from Houspect Pty Ltd. Mr Andrew Booth authored the construction report (page 71 of the HB and Exhibit 3). That construction report made reference to the presence of rising damp as follows: The complaint 5 On 16 October 2012, the applicant sent a letter to the respondent advising him, amongst other things, that he intended to make a formal written complaint to the Building Commission, 14 days after the date of his letter, in relation to the rising damp (page 93 of the HB). (Page 5)
6 A complaint, made pursuant to s 5(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) was lodged at the Building Commission on 21 November 2012. It identified five items of complaint in the schedule. The Building Commission referred the complaint to the Tribunal under s 11(d) of the BSCRA Act. Two of the items (4 and 5) of the complaint were withdrawn at a directions hearing. 7 The applicant was seeking a building remedy order, under s 36(1)(b) of the BSCRA Act, that the respondent pay $12,650, the cost quoted by All Service Restorations (ASR) on 16 August 2012 to remedy rising damp (pages 87 and 88 of the HB). It is noted that the report refers to piers which have in various correspondence been alternatively referred to as columns and pillars.
The issues before the Tribunal - summary 8 The issues before the Tribunal and the subject of these reasons are: 1) A preliminary jurisdictional issue, being the application of s 6(1) of the BSCRA Act which provides: A building service complaint is made out of time if the complaint is made more than 6 years after the completion of the regulated building service to which the complaint relates. Has this complaint been made to the Building Commission more than the six years after the defining time? 2) Has the work the subject of the complaint not been carried out in a proper or proficient manner, and/or was it faulty or unsatisfactory, and is the amount sought by the applicant the reasonable cost of rectification work?
The hearing 9 The matter was heard before the Tribunal on 6 August 2013. Mr Maricic had legal representation. Just prior to the luncheon break, his counsel advised the Tribunal that, due to the ill health of his client, he would not call his client as a witness. In response, the applicant referred the Tribunal to the witness statement (page 221 of the HB) where Mr Maricic stated, 'I have been very ill recently and this has affected (Page 6)
my memory of the events', and said he would not call Mr Maricic as a witness. 10 Mr Bolton was called to give evidence. The Tribunal accepts Mr Bolton as a credible witness. He was straightforward when questioned by the applicant and the members of the Tribunal, and his ongoing business connection with the respondent did not affect his perspective or colour his evidence. He emphasised several times that he was offering help to the applicant as a friendly, neighbourly gesture, and to the respondent with whom he had a longstanding business relationship. He spoke of how he had helped Mr Maricic when he was unable to drive. The Tribunal came to the conclusion that he was a person who was genuinely seeking to help the parties over the course of the dispute, and the Tribunal at the hearing. 11 Evidence was heard from the Mr George Wellstead, from ASR, and Mr Richard Machell. 12 The evidence supporting the parties' submissions on the preliminary jurisdictional issue was intertwined with the factual issues in relation to the items the subject of the complaint. Thus, the jurisdictional issue was heard on the same day as the evidence on the substantive issue. 13 The Tribunal, in coming to its decision, relied upon all the documents in the HB. Both parties were requested to provide to the other, and to file at the Tribunal, their written submissions on the preliminary issue. The applicant filed submissions (pages 5 10 of the HB) and, on the day before the hearing, further submissions (Exhibit 1). The respondent's submissions are at pages 128 - 131 and 166 180 of the HB. 14 These submissions were taken into consideration, along with exhibits filed during the course of the hearing.
Issue 1 - has the applicant made his claim within the timeframe required under the BSCRA Act? 15 Section 6 of the BSCRA Act imposes a time limit within which complaints under s 5(1) of that Act must be made. That section states: (Page 7)
16 Criteria have been prescribed for the purposes of s 6(2)(a) in reg 7 of the Building Services (Complaint Resolution and Administration) Regulations 2011 (WA) (Regulations) as follows: The applicant's submissions 17 The applicant submitted that his complaint was made within the timeframe required, and raised the following propositions to support that submission. (Page 8)
i) The time for bringing a complaint is to be determined by reference to the Builders Registration Act 1939 (WA) (BR Act) 18 The applicant submitted that s 6 of the BSCRA Act does not apply because the complaint is about a matter (the construction of a house) which occurred prior to the enactment of that Act, and, 'by reason of the transitional provisions', the determining legislation is the BR Act. 19 Section 12A of the BR Act should apply to disputes arising from building work undertaken during the currency of the BR Act. Under that Act, the timeframe for bringing a complaint is also six years. However, the six years runs from the time the building work was completed. The BR Act defined building work as 'completed' when the building to which the work relates becomes fit for occupation in a free and uninterrupted manner. The applicant referred the Tribunal to Content Living Pty Ltd v MacIntosh & Anor[2005] WADC 173, where the District Court held that, in the normal course of events, the building will be fit for occupation in a free and uninterrupted manner at the date of practical completion. However, Braham v Evans[2008] WASC 274 held that latent defects which were sufficiently serious can prevent a building from being fit for occupation in a free and uninterrupted manner. The applicant said that the limitation period for the purposes of the BR Act was satisfied in this matter because the subject matter of the applicant's complaint, being rising damp, prevented free and uninterrupted occupation. The limitation period ran from 2010, when the rising damp became apparent, and so his complaint was lodged well within the required six year period. 20 The Tribunal was not persuaded by this submission because: • Section 107 of the Building Services (Registration) Act 2011 (WA) repealed the BR Act. In the absence of the applicant having an accrued right to bring a claim under that Act arising as a result of him having commenced proceedings under the BR Act prior to its being repealed, which he had not, the provisions of the BR Act no longer apply to building work completed or undertaken prior to the commencement of the BSCRA Act. • The applicant made his complaint to the Building Commission pursuant to s 5(1) of the BSCRA Act. It is the BSCRA Act that provides the timeframe, thus the limitation period, for complaints made under that Act. (Page 9)
Section 6(1) of the BSCRA Act clearly provides that a building service complaint (that is, the complaint made to the Building Commission by the applicant under s 5(1) of the BSCRA Act) is made out of time if made more than six years after the completion of the regulated building service to which the complaint relates. The section cannot be read to support the submission made by the applicant that the timeframe ought to be determined by reference to the (repealed) BR Act. The applicant did not provide in his submissions any statutory provision to support this proposition, and there is not one.
ii) The meaning of 'building service' 21 The applicant's second proposition, in relation to his submission that the complaint had been brought within the necessary timeframe, related to the meaning of 'building service' in s 6 of the BSCRA Act. The complaint is made out of time if it is made more than six years after the completion of the regulated building service to which it relates. The phrase 'building service' is defined by s 3 of the BSCRA Act. It includes building work. The Building Act 2011 (WA) (Building Act) defines 'building work' as: (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[.] 22 The applicant submitted that: (Page 10)
• the timeframe for bringing a complaint as provided in s 6(2) of the BSCRA Act has been met.
The respondent's submission 23 The respondent submitted that in order to comply with the limitation period for bringing complaints as provided in the BSCRA Act, the date on which the building service was last carried out must have been after 21 November 2006, being the date upon which the applicant lodged his complaint at the Building Commission. 24 Counsel referred to Owners of Strata Plan No 46493 and Smith[2012] WASAT 41 (Smith), where the presiding member took evidence of work carried out as part of the building service in order to decide whether or not the complaint had been made within the required limitation period. An analysis of documentation related to work undertaken on site identified a certificate from the Plumbers Licensing Board certifying that plumbing work had been undertaken on a specific date. The presiding member was able to, and did, come to the conclusion that, in that particular instance, the complaint was brought within the necessary period of time, as the certificate confirmed work done within six years of the complaint being made. 25 The respondent replicated that exercise by referring to material related to the construction of the house. Counsel submitted these activities ought to lead the Tribunal to a conclusion that the date on which the building service was last carried out must have been towards the end of June 2006, well before the 21 November 2006 complaint date. 26 Included in this material were accounts from service utilities, namely: (Page 11)
and related to the period from 8 June - 9 August 2006. (pages 265 and 266 of the HB). c) An SGIO 2006/2007 certificate of insurance (home building and contents) policy HOM248379963 that relates to No 3 Cowan Street, Alfred Cove, which provides insurance from 11.26 am on 29 June 2006 to 11.59 pm on 29 June 2007. That document (page 268 of the HB) incorporates a disclosure that the home 'is occupied by the owner who lives in the home'. 27 The respondent's submission was that these documents led to a clear inference that the house was being occupied/lived in by the end of June 2006. Accordingly, the building service work necessarily required so that the house could be occupied must have been last carried out before the end of June 2006. 28 Mr Bolton was called to give evidence. He admitted that he was not able to remember many of the details of, and conversations related to, the construction of the house because of the time that had passed. In relation to a question as to when the house was completed, he commented wryly that a house is never complete, that there are always things to be done. But insofar as when the construction work was completed, he said that it was by the end of June 2006. Mr Bolton referred the Tribunal to a document, at page 261 of the HB, confirming the completion and acceptance of the house, signed by himself and his wife on 23 June 2006. He referred to the invoice dated 23 June 2006, at page 214 of the HB, as being the final account rendered by the respondent in relation to the construction work, which he had paid on completion of the construction work. 29 The only document provided by the applicant in order to satisfy the Tribunal that the completion date of the building was sometime after 21 November 2006 was a document at page 119 of the HB, being a City of Melville kerb security deposit refund cheque requisition. Dated 27 November 2006, it authorises the refund of a kerb deposit paid to the City on 6 April 2005 in relation to the construction of No 3 Cowan Street, Alfred Cove. He did not provide evidence of when the respondent made the application to the City that gave rise to the requisition for the refund. The applicant submitted that the date of the requisition is the date on which the building service was last carried out. This is after the critical 21 November 2006 date. (Page 12)
The finding 30 For the Tribunal to make a finding on the date of completion of the regulated building service, it is necessary to identify the building service the subject of the complaint. 31 'Building service' is defined in s 3 of the BSCRA Act to mean 'building work' as defined in the Building Act. The definition of 'building work' in the Building Act is wide and, relevant to this complaint, it includes both the construction of a building and repairs to a building.
Building service - construction 32 If the regulated building service the subject of the complaint was the construction of the house, the deeming provision in s 6(2)(b) of the BSCRA Act applies. 33 Section 6(2)(a) of the BSCRA Act does not apply for the following reasons: a) In relation to reg 7(a) of the Regulations, building work must have been carried out under a building permit. Section 178 of the Building Act provides a transitional provision in relation to building licences as follows: b) Regulation 7(b) of the Regulations provides that, in the case of a regulated building service that: (i) is not carried out under a building permit or demolition permit; and (Page 13)
34 As concluded above in relation to reg 7(a) of the Regulations, the construction was not carried out under a building permit. Although the construction was carried out under a home building work contract, that contract did not provide a date of practical completion. Despite the contract requiring that the contract be completed within a number of weeks from the date of commencement as stated in the appendix, the appendix did not specify the number of weeks (page 237 of the HB). The provided space to include the number of weeks was left blank. Regulation 7(b) of the Regulations does not provide the mechanism to determine the date of practical completion. 35 Therefore s 6(2)(b) of the BSCRA Act is to be applied to determine the date of completion of the building service. It provides: if paragraph (a) does not apply - on the date on which the building service was last carried out. 36 In submitting that the building service was last carried out before late June 2006, the respondent identified the construction of the house as the building service relevant to this complaint. Construction of the house was last carried out sometime before late June 2006 because: a) gas and electrical services were connected and being used; b) the Boltons had insured the house, having attested for the purposes of the policy that they were living in the house; and c) the Boltons had paid for, signed off on and were living in that house by the end of June 2006. 37 The applicant submitted that the construction of the house was last carried out on 27 November 2006, the date a City of Melville kerb security deposit refund cheque was requisitioned. He did not provide any other evidence of the carrying out of the construction of the house either before or after 21 November 2006. (Page 14)
38 The Tribunal finds that the building service comprising the construction of the house was last carried out before 21 November 2006. The cheque refund requisition raised by the City is not a building service carried out by the respondent. It is an administrative task undertaken by the Council, albeit at the request of the builder. In the absence of evidence of the carrying out of any other construction work on the house after 21 November 2006, and given the compelling evidence that the Boltons were living in the house from the end of June 2006, the Tribunal finds that if any of the any complaints were about the construction of the house, they were made more than six years after the completion of the construction of the house, and were thus out of time.
Building service - repairs 39 The applicant submitted that the regulated building service the subject of the complaint is repair work carried out on or in connection with the rising damp. 40 In his notice of complaint at page 93 of the HB, the applicant identified his complaint as: 41 In his complaint schedule, the applicant described the items of complaint as: Rising damp, paint bubbling. 42 The applicant submitted that the respondent, through Mr Bolton, made several attempts to rectify the rising damp the subject of the complaint in February 2011 at the earliest. 43 Because that repair work was not carried out under a permit or pursuant to a contract that provided for a completion date, the methodology provided under s 6(2)(b) of the BSCRA Act would be used to determine the completion date of the repairs of the items to which the complaint related. The time for the applicant to make his complaint therefore runs from the time when that 'repair' work was last carried out, which was in February 2011 at the earliest. (Page 15)
Was repair work undertaken? 44 Mr Bolton gave evidence that he arranged for repair work on four front pillars to be carried out by a contractor who lived over the road. He referred to a small wall as a pillar. He arranged for the work to be undertaken. He did not know what work was done, or the exact piers that were repaired. The respondent did not dispute that repair work was done. The Tribunal finds repair work was undertaken on rising damp to piers in or about February 2011.
Was the repair work undertaken 'by or on behalf of the respondent'? 45 The applicant's contention is that it was. Repair work was organised by Mr Bolton, acting as Mr Maricic's agent. 46 The applicant said that in or about November 2010, he approached Mr Bolton, who was living next door, with regard to rising damp evident on the external columns of the house. He said Mr Bolton's response was dismissive. Hence, in early December 2010, he commissioned Houspect Pty Ltd to carry out a building inspection. Mr Andrew Booth wrote a construction report (page 71 of the HB and Exhibit 3). That construction report made reference to rising damp as follows: 47 The applicant immediately sent a copy of that report, together with an accompanying undated letter (page 68 of the HB) to the respondent. In that letter, he wrote: 48 The applicant then received a handwritten letter from Mr Bolton dated 13 December 2010 (page 72 of the HB) stating: George Maricic the builder, contacted me on Thursday and I met with him at his house on Friday. We went through your letter and the Building Report. … (Page 16)
I sincerely regret that it appeared to you that I was not prepared to remedy the moisture problem on the front pier - I don't think this is too difficult to resolve. … As a matter of interest, both the builder, and Jill and I, expect the highest standards of workmanship and would not knowingly have accepted anything less. We assure you that these issues will be resolved. 49 The applicant drew the attention of the Tribunal to a repair quotation dated 8 February 2011 (page 215 of the HB) addressed to Mr Bolton. That quotation from ASR refers to rising damp in three (not four) piers. Following a general standard form analysis of rising damp (paragraph (b) of the document), the quotation then refers to the extent of work and, at page 3 of that quotation, provides a costing. Mr Wellstead, the author of the ASR report and owner of that business, gave evidence and said that the report was commissioned by Mr Bolton. He went to the house. Mr Bolton showed him the columns and a quote was provided. That quote was not accepted by Mr Bolton. 50 Mr Bolton wrote to the applicant on 13 February 2011 setting out arrangements for repairs, and wrote (in relation to the rising damp): If all goes to according to plan, the 4 front pillars will be done the week after next. 51 The applicant then sent Mr Bolton an email dated 21 February 2011 (page 74 of the HB) in which he asked for confirmation as to various conversations they had had to date, including: 1. The Registered Builder 9530 has appointed you as the contractor to resolve the defects within the Builder[']s inspection report dated 3rd Dec 2010. 52 Mr Bolton responded on the following day stating that he had 'confirmation regarding the repairs to the pillars and will get started asap'. 53 There was no explicit confirmation of his appointment as the respondent's appointed contractor. 54 On 28 February 2011, Mr Bolton wrote: I have also advised a contractor/s to waterproof and repair the 4 pillars[.] (Page 17)
55 Mr Bolton gave evidence that repairs to three pillars, and what he described as a small wall near the pillars, were undertaken by a contractor who lived across the road. He said he was not there when the repair work was done. 56 The next correspondence was almost a year later when, on 7 February 2012, the applicant sent Mr Bolton an email requesting advice on when repair work would be undertaken. That email (page 77 of the HB) identified the rising damp and two other items (not relevant to these proceedings) as still being evident. 57 On 23 March 2012, Mr Bolton sent the applicant a letter (page 78 of the HB) stating that he had had a serious heart attack and that he was ensuring 'that all my affairs are in order', and, in relation to the work that still required to be undertaken, 'I suggest I give you $6,500 and you can arrange the work to be done at your own convenience'. 58 Included in that amount was a sum of $100 to cover the cost of painting the piers. 59 On 30 April 2012, the applicant sent Mr Bolton an email referring to him as 'the registered builder's agent', asking him to rectify building errors, being the rising damp and other items not relevant to this hearing, and advising that his offer of payment was not accepted (page 79 of the HB). 60 In a letter to the respondent on 11 May 2012 (page 80 of the HB), the applicant advised the respondent that the defects still needed urgent attention and that Mr Bolton had advised he would no longer be attending to various rectification work. Two quotations were sent to the respondent on 22 May 2012, together with a request that the repairs be attended to as a matter of urgency because they (that is, the applicant and his wife) had been waiting since February 2011. One quote was from Systems Building Maintenance (pages 82 and 83 of the HB). It is relevant to note that that report provided an opinion as to the contributing factors to effervescence being: These piers were possibly built with no affective [sic] damp course barrier or bridged in height by the level of paving. 61 On 11 June 2012, the respondent wrote to the applicant (page 86 of the HB) stating his regret that he had not answered the letters of 11 and 22 May 2012, and then adding: (Page 18)
I would appreciate you giving me a list of the defects mentioned in your letter of 11 May and I would then like to meet with you at the property to be shown the rising damp problem[.] 62 In answer to a request to identify the role of Mr Bolton, the respondent added that Mr Bolton was the owner and that he (the respondent) was the builder. 63 Mr Bolton gave evidence that he was assisting the applicant as a neighbourly gesture.
Was Mr Bolton the respondent's agent in negotiating and effecting repairs? 64 The Tribunal is satisfied that Mr Bolton was the respondent's agent for the following reasons: • The applicant sent the building report dated 2 December 2010 to Mr Maricic as the builder, so he knew then of the role and responsibility of the builder. • Mr Bolton's evidence that he went to see the respondent, at the respondent's request after the respondent had received that report, supports a conclusion that the respondent was taking ownership of the problems in the report. • Mr Bolton's evidence that he was arranging for the rectification of the items in question as a neighbourly gesture, does not lead the Tribunal to a conclusion that he was therefore accepting legal liability. The more acceptable conclusion is that Mr Bolton was assisting both the respondent and his neighbour. The letter of 13 December 2010 refers to 'we' in the sentence 'We assure you that these issues will be resolved', which includes the respondent as part of the solution. • That communication (after the construction report was sent to the respondent) was between the applicant and Mr Bolton, despite the applicant knowing that the respondent was the builder, is logical, given that the applicant knew Mr Bolton, and Mr Bolton had been acting as the friendly neighbour. It is also consistent with Mr Bolton being the respondent's mouthpiece/helper/ advocate. It does not negate a conclusion that the respondent was not the responsible party. (Page 19)
• The absence of confirmation by the respondent of the relationship, despite the applicant having queried it, does not support a conclusion that Mr Bolton was therefore not his agent. 65 The document that seems to suggest most clearly that Mr Bolton was acting independently of the builder is the letter (at page 78 of the HB) where he states 'I suggest I give you $6,500', as referred to above. 66 The Tribunal is not satisfied that this offer to pay $6,500 is evidence of Mr Bolton accepting personal liability; that is of Mr Bolton acting in his own right, not as an agent. His close geographical proximity to the applicant, his long-term business relationship with Mr Maricic, and his concern about Mr Maricic's ill health and inability to read and understand documentation leads the Tribunal to a conclusion that all his discussions with the applicant, and the repair work done, were undertaken as Mr Maricic's agent. 67 The alleged request by Mr Bolton that the respondent be left out of dealings and that he would take care of all the issues raised as part of the inspection report (last paragraph of page 93 of the HB) is not, even if an accurate record of the alleged conversation, sufficiently clear to lead to a finding that Mr Bolton was accepting responsibility for the items. 68 The description given by the respondent to the role of Mr Bolton - that Mr Bolton was the owner and the respondent was the builder - affirms this conclusion. 69 The Tribunal is satisfied that there is sufficient evidence to conclude that Mr Bolton, when organising the repairs to the piers, was doing so as an agent of Mr Maricic and therefore the repairs were undertaken on behalf of the respondent. 70 The Tribunal is further satisfied that the repair work is the regulated building service to which the complaint relates. The time for making a claim about the repair work must be no later than six years after the repair work was last carried out. The repair work was last carried out in 2011 at the earliest. The applicant's claim was made within six years. (Page 20)
Issue 2 - was the work the subject of the complaint not carried out in a proper or proficient manner, and/or was it faulty or unsatisfactory, and what is the reasonable cost of rectification? 71 The Tribunal is satisfied that the repair work to which the complaint relates was not carried out in a proper or proficient manner, and/or was faulty or unsatisfactory. The respondent did not raise any argument to the contrary. At paragraph 25 of his statement (page 221 of the HB), the respondent says he did not assume responsibility because of the time that had elapsed. He did not deny that the repair work had not been carried out in a proper or proficient manner, and/or that it was faulty or unsatisfactory.
The faulty work and the cost of rectification 72 The applicant referred the Tribunal to three reports from ASR that relate to the items the subject of the complaint and the work to be undertaken to remedy them. It notes that these reports identify different scopes of work and different costs. 73 The first report, addressed to Mr Bolton, which is at page 215 of the HB, clearly identifies the problem as rising damp to three piers. It is dated 8 February 2011, five days before Mr Bolton wrote to the applicant (in relation to the rising damp): If all goes to according to plan, the 4 front pillars will be done the week after next. The scope of work in that report is to attend to rising damp in three piers. The quoted cost including GST is $2,090. 74 Subsequent to that report, the applicant's wife, Mrs Amanda Teo commissioned a further report dated 16 August 2012 (page 87 of the HB). In this report, the scope of work is for rising damp (as in the earlier report), and salt treatments to five ground piers and to the south garage wall and balcony piers. 75 A third report dated 26 June 2013 (at page 115 of the HB), again from ASR and addressed to the applicant and Mrs Teo, refers to the scope of work as six piers, south and north garage, the wall and sill of the dining room and balcony waterproofing rectification work. This quotation is for $19,250 (including $1,750 GST) for the rising damp, together with $9,000 (plus $900 GST) for a balcony rebuild. All the rectification work was alleged by the applicant to be arising from the rising damp issues (Page 21)
the subject of his original notice of intention to bring a claim and the complaint form. 76 A quotation from Systems Building Maintenance, dated 19 May 2012 and addressed to Mrs Teo, reported on effervescence affecting brick piers (page 82 of the HB). The quoted cost of rectification work in that report was $2,640. 77 An email quotation from Antidamp WA sent to Mr Bolton on 8 May 2012 (page 84 of the HB) identified several columns and piers suffering from the effects of rising damp. It costed the repair at $2,508 including GST. 78 What is clear is that: a) following the first ASR report and quotation, Mr Bolton was aware, or should have been aware, when organising for the piers to be repaired, that rising damp was affecting the piers; b) the rising damp was still evident when ASR wrote its subsequent reports, and when both Systems Building Maintenance and Antidamp WA wrote their reports; and c) the repair work undertaken did not resolve the identified problem, being rising damp. 79 Mr Wellstead told the Tribunal that he had no building, architectural or other qualifications and that he was self taught through books. He had run ASR for 30 years, and had experience in Perth, South Australia and Sydney in damp proofing. He had visited the house three times to report on the rising damp. He said that Mr Bolton commissioned the report of February 2011. Mr Bolton showed him three piers/columns and a quote was duly given. He was not asked to look at the rest of the house, although he said that where there are issues of damp in one area, it is likely to be apparent over a larger area and, if external, an inspection ought to be carried out to check the rest of that external area. He was not given that opportunity. The quote was not accepted. 80 Mr Wellstead said that the second quote (page 87 of the HB) resulted from a request from Mrs Teo to attend the house. He was asked to look at the piers and the damp to the wall and the balcony area. Upon arriving at the house, he realised that he had previously given a quote. However, Mr Wellstead did not make that quote available to the applicant (Page 22)
and Mrs Teo. The second quote was higher, as it included the south wall of the garage. 81 The third quotation (page 105 of the HB) related to extra work that Mr Wellstead said might arise in a worst case scenario. 82 Mr Wellstead said that the rising damp occurred because the sand adjacent to, and between, the piers and garage floor became saturated in winter and drew water upwards into the walls and piers. He drew the conclusion that there was no damp-proof coursing. He was not able to explain under crossexamination the basis upon which he had come to this conclusion. 83 On detailed questioning from counsel for the respondent, Mr Wellstead admitted to not understanding the role of the Building Code, and he did not know the class of work related to the area the subject of the rising damp. 84 The Tribunal notes that Mr Wellstead's costings were lacking detail; they were not directed to or referenced against the items in respect of which work is required to be undertaken. His quotations were not of great assistance to the Tribunal. 85 Mr Machell gave evidence by telephone link. Mr Machell's curriculum vitae and resumé (pages 148 - 159 of the HB) were the basis upon which the Tribunal concluded that Mr Machell was a competent, independent and credible witness. His report was written with the purpose of advising and assisting the Tribunal in relation to the issues in dispute, and to provide itemised costings of rectification work. The costing detail contained within his report was of more assistance to the Tribunal than the ASR global costing quotation. 86 Mr Machell's report is at pages 132 - 165 inclusive of the HB. The items inspected and the subject of Mr Machell's report are those listed in the third ASR report (page 105 of the HB). A sketch map drawn by Mr Machell at page 147 of the HB cross-referenced the items addressed in his report. It is to be noted that his report covers items not in the complaint schedule. His report deals with items in a different sequence to that in the complaint form; so, for clarification, they are compared: |