THE OWNERS OF ONE BRIGHTON STRATA PLAN 51948 and PINDAN PTY LTD
[2018] WASAT 84
•16 AUGUST 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 WA
CITATION: THE OWNERS OF ONE BRIGHTON STRATA PLAN 51948 and PINDAN PTY LTD [2018] WASAT 84
MEMBER: MEMBER T CAREY
MR R AFFLECK (SENIOR SESSIONAL MEMBER)
HEARD: 22 JANUARY - 1 FEBUARY 2018
FINAL WRITTEN SUBMISSIONS FILED
9 JULY 2018
DELIVERED : 16 AUGUST 2018
FILE NO/S: CC 384 of 2017
BETWEEN: THE OWNERS OF ONE BRIGHTON STRATA PLAN 51948
Applicant
AND
PINDAN PTY LTD
Respondent
Catchwords:
Building dispute - Complaint that building service faulty or unsatisfactory - Referral of complaint by Building Commission - Whether Tribunal lacks jurisdiction in respect of some complaint items on basis they did not form part of complaint before Building Commission - Glazing - Design failures giving rise to water ingress - Obligations of builder and what the builder did considered - Other complaint items
Legislation:
Building Act 2011 (WA)
Building Regulations 1989 (WA)
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5, s 5(1), s 7, s 7(2), s 7(3), s 8, s 9, s 9(1), s 10, s 10(1), s 11(1), s 11(2)
Result:
Application partially successful
Category: B
Representation:
Counsel:
| Applicant | : | Mr C P K Russell |
| Respondent | : | Mr A R McPherson |
Solicitors:
| Applicant | : | GV Lawyers |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Diploma Construction (WA) Pty Ltd v South Central W.A. Pty Ltd [2015] WASC 289
Owners of Island Apartments Strata Plan 52597 and Pindan Pty Ltd [2017] WASAT 25
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 27 September 2007, Boulevard Investments Pty Ltd (developer) entered into a contract with Pindan Pty Ltd (Pindan) to construct an 11 storey apartment building at 1 Barracks Lane, Mandurah (building). Practical completion occurred on 21 October 2010.
The developer registered the parcel of land upon which the building was constructed as a strata scheme on 28 January 2016 with the building being named 'One Brighton' (scheme).
This application is brought by the strata company of the scheme (the Owners).
On 14 October 2016 the Owners lodged a complaint under s 5(1) of the Building Services (Complaint Resolution and Administration) Act2011 (WA) (BSCRA Act) with the Building Commission, alleging that the building service comprising construction of the building was not carried out in a proper and proficient manner or was faulty or unsatisfactory. The complaint contained 191 items. On 21 February 2017, pursuant to s 11(2) of the BSCRA Act, the Building Commission referred the complaint in its totality to the Tribunal.
By reason of negotiations between the parties, the number of items for determination was reduced at the time the matter was listed for hearing to 61 (this number has subsequently been further reduced). Of the 61 items, 52 relate to doors and windows on the exterior shell of the building. Apart from two of these items, all the glazing items allege water ingress through the exterior of the building into individual lots of the scheme.
The hearing in the Tribunal traversed eight days. Subsequently, the parties filed written submissions according to a program fixed by the Tribunal which was extended twice. The Tribunal determined at the hearing that, given the wide range of possible outcomes regarding the primary matters in dispute, the hearing would be limited to questions of liability under the BSCRA Act, with appropriate directions to be given thereafter to resolve such remedy issues as may be necessary. These reasons are limited, in terms of their determinative effect, to liability, although to the extent that they refer to, and make findings about, any failures by Pindan in terms of the threshold under s 5(1) of the BSCRA Act sufficient for liability to arise, it is expected this will be used by the parties in their consideration of questions going to relief.
The two glazing items which do not specify the consequence of water ingress into specific lots are items 3 and 190 (the item numbers are derived from the 'Complaint Schedule' provided with the complaint, the numbering of which is consistent through each successive iteration of the Scott Schedule produced subsequently by the parties).
In respect of item 3, the Scott Schedule contains the following 'detail of complaint item':
Ensure compliance of balcony sliding door glazing with Australian Standards with regards to suitability for water ingress and deflection under wind loading suitable for the height of the building to apartments with 01, 02, 03, 04 and 05 layouts.
Item 190 of the Scott Schedule is prefaced 'Throughout building', and the following detail is given:
Make good window joins to all external windows.
In the case of these items, Pindan submits that the Tribunal's jurisdiction is limited in the case of item 3, and excluded in the case of item 190, by reason of their descriptions for the purposes of the complaint which was before the Building Commission.
Issues
Our reasons for decision are ordered as follows:
1)We shall commence by dealing with Pindan's submissions on the Tribunal's lack of jurisdiction.
2)We will then consider such of the glazing items as we find to fall within jurisdiction. In doing so we will consider the following issues:
(a)What were the obligations of the builder (Pindan) regarding the glazing throughout the building what was Pindan required to do?
(b)What did the builder do?
(c)What conclusions do we draw relevant to liability?
3)Finally, we will deal with the remaining items with a view to determining liability in respect of them.
The Tribunal's jurisdiction regarding glazing issues
Statutory framework
Section 5(1) of the BSCRA Act provides that a person may 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 (such a complaint is defined as a 'building service complaint': s 3 of the BSCRA Act). There is no dispute in this proceeding that the performance by Pindan of its obligations under the contract for construction of the building was a regulated building service.
Section 7 of the BSCRA Act provides that, after receiving a complaint under s 5, the Building Commissioner must decide either to accept the complaint, or to refuse to accept it. The Building Commissioner may make such enquiries it considers to be appropriate to enable the making of that decision: s 7(2) of the BSCRA Act. Factors going to the discretion of the Building Commissioner to refuse to accept a complaint are set out in s 7(3). They include where the complaint is not made in accordance with the Act, the complaint is made out of time, and where, in the opinion of the Building Commissioner, the complaint is vexatious, misconceived, frivolous or without substance.
Section 8 of the BSCRA Act provides for the Building Commissioner to require a person making a complaint to provide further details about the complaint.
Section 9 of the BSCRA Act concerns actions of the Building Commissioner upon acceptance of a complaint. It must, in that circumstance, cause an investigation of the complaint to be carried out by one or more authorised persons: s 9(1) of the BSCRA Act. By s 10(1), an authorised person is to prepare a report on his or her investigation, may include recommendations as to the manner in which the complaint should be dealt with, and give the Building Commissioner a copy of the report.
Under s 11(1) of the BSCRA Act, the Building Commissioner must consider a report received under s 10, and, in relation to a building service complaint, proceed in one of four ways, one of which is to refer the complaint to the Tribunal for it to deal with.
The parties' contentions
Pindan's submission on jurisdiction draws upon the Tribunal decision in Owners of Island Apartments Strata Plan 52597 and Pindan Pty Ltd [2017] WASAT 25 (Island Apartments). Among others, Pindan cites Island Apartments in favour of the following propositions:
(a)the items of complaint or particulars of complaint need to be sufficiently described so as to enable a party to respond to them (Island Apartments at [64]; and
(b)an item not so described is not an item of complaint referred to the Tribunal by the Building Commission (Island Apartments at [116]).
Pindan contends that the reach of the Owners' claim in respect of item 3 presented at the hearing is wider than the relevant item in the complaint lodged with the Building Commission, having regard to what it considers to be the proper construction of the expression '01, 02, 03, 04 and 05 layouts'.
In respect of item 190, Pindan submits that the Owners' claim in the Tribunal amounts to 'an all-encompassing and generic complaint about the framing systems of the entire building', which falls outside the scope of the complaint item 'make good window joins to all external windows'.
In their closing submissions, the Owners responded as follows:
(a)The individual items of complaint are not considered in a vacuum;
(b)A factual matrix exists in which the complaint is made, and the language used in the items of complaint must be viewed in the context;
(c)The language used in the complaint must be construed as part of the complaint documents provided to the Building Commission;
(d)The portions of Island Apartments relied upon by Pindan must be considered in the context of other contents of the decision, the legislation being designed to enable parties to engage in the complaint process without legal representation, and that:
… it would unduly restrict and undermine the process if a party was bound by the wording on the form it first lodges with the Building Commission (Island Apartments at [64]);
(e)Pindan's response before the Building Commissioner to item 190 was to the effect that it had completed the item and not received any notice from the complainant of a defect since.
In response to Pindan's assertion that the language of item 190 did not allow it to understand what was being contended about the quality or performance of the service, the Owners relied upon:
(a)Pindan's response we have just mentioned;
(b)Pindan's failure to seek further particulars of the item;
(c)the construction of item 190, informed by the preceding heading 'Throughout the building';
(d)the statement 'pursuant to the report' in the columns 'remedy sought' and 'evidence to be relied upon', in item 190;
(e)the expert report of ABBC Building Inspectors, undated but relating to inspections on 13 and 14 September 2016 by Mr Andrew Booth (first ABBC report), in the 'General Description' section which states:
The owner intends to make a complaint to the Building Commission alleging faulty design, materials and/or workmanship in the construction of the building;
(f)accordingly, item 190 'ought to be interpreted as make good window joins to all external windows where there is a faulty design, materials or fault (sic) workmanship throughout the building'.
In order to consider the competing contentions, it is useful to consider Island Apartments, as the previous decision of the Tribunal where the jurisdictional implications of the manner of describing complaints before the Building Commission is most thoroughly considered, in greater detail.
Island Apartments
In Island Apartments the jurisdictional issue was determined as a preliminary issue.
Island Apartments concerned differences in the respective descriptions of two items appearing in a third Complaint Schedule relied upon before the Tribunal (Schedule C) from the analogous items in the first Complaint Schedule before the Building Commission (Schedule A). In between the two, subsequent to acceptance of the complaint by the Building Commission, the applicant filed two successive reports from an expert. The applicant then filed a revised schedule which reflected contents of its experts' reports (Schedule B), the Building Commission issued a proposed building remedy order (PBR order) which the respondent opposed, and the Building Commission referred the complaint to the Tribunal. Schedule C, which was filed for the first time in the Tribunal, differed, in respect of the two items in dispute, to varying extents, from the analogous items in Schedule B as well as Schedule A.
After considering the statutory scheme, as well as an excerpt from the Explanatory Memorandum of the bill which became the BSCRAAct, Member Le Miere said at [57] of Island Apartments:
The BSCRA Act is at its core consumer legislation. The purpose of the BSCRA Act is to provide consumers with a means to bring their complaints about 'the quality of performance of the regulated building service' in a nontechnical manner. It is about substance, not form.
In particular, the member rejected the argument of the respondent before her that a complainant is bound by its complaint without the ability to augment it before the Building Commission.
However, Member Le Miere also rejected the applicant's suggestion of the Tribunal having a broad power to deal with matters outside the ambit of a complaint referred to it by the building commission. She said at [62] of Island Apartments:
In particular, this is inconsistent with the requirement that the Building Commission investigate the 'complaint' and then, if it considers appropriate, to refer it to the Tribunal. On the interpretation of what constitutes a complaint put forward by the applicant, items of complaint could be added to a matter in the Tribunal that had not been investigated by the Building Commission - this is clearly inconsistent with s 11 of the BSCRA Act and the intent of the legislation.
Member Le Miere's comments at [64], which we have referred to in articulating the parties' submissions, is followed by the following (at [65] of Island Apartments):
Allowing for no details to be provided as to the nature of the complaint of unsatisfactory workmanship would prevent the Building Commission from finalising an investigation and referring 'the complaint' to the Tribunal.
Then, at [66], she said:
As can be seen from the BSCRA Act it is for the Building Commission to determine what constitutes the complaint it refers to the Tribunal. It is open to the Building Commission to determine if it considers notice of a complaint has been given or if it will waive or modify the requirement to comply (reg 6 of the BSCRA Regulations).
We agree with and adopt all of the reasoning in IslandApartments, with one reservation. The member's comment at [66] that it is for the Building Commission to determine what constitutes the complaint it refers to the Tribunal, might in our view be better expressed that the Tribunal needs to attribute to the Building Commission a particular identification of the items comprising the complaint. That identification is to be made having regard, for example, to the ability of the Building Commission to seek further details of the complaint and to be furnished with expert evidence. Butthat identification is required in order to determine the scope of the complaint referred to the Tribunal, which defines the jurisdiction of the Tribunal regarding the complaint.
We also agree with and adopt the following passage in the 'Conclusion' of Island Apartments at [114]:
The Tribunal accepts that the jurisdiction of the Building Commission is enlivened when it receives the complaint. However, the Building Commission is able to seek clarification about a complaint after 'receiving it'. As with courts it sets its procedures itself and it 'allows' for complaints to be 'amended or clarified' without formal applications. What is at the essence of the legislation is that the Building Commission is to receive complaints and attempt to resolve them without formality. This necessarily may involve some 'toing and froing' with both parties in an endeavor to establish what it is that the consumer is complaining about and what the regulated building service provider's response to the issue is.
How, then, did Member Le Miere determine the jurisdictional outcome of the differences between the descriptions of each of the twoitems in Schedule A and Schedule C?
In relation to the first of the items relating to steelwork, the member noted:
•The particulars of the complaint as described in the two expert reports were specifically referred to as being the evidence relied upon to support the item;
•The respondent received both expert reports (some uncertainty was expressed at the hearing about this);
•As part of the Building Commission's investigation report, a desktop review of the 'items of complaint and the evidence provided' was conducted, which found that remedial action was required for many items of complaint; and
•The PBR order contained reference to the experts' reports and the respondent's agreement to rectify areas identified by them.
(Island Apartments at [69] - [72])
In respect of the first item, the following finding appears at [76]:
The Tribunal finds that an item of complaint (not withdrawn) that is specifically referred to in the wording of the complaint in Complaint Schedule A, the MPDA Reports and the PBR Order is an item of complaint that has been accepted by the Building Commission and referred to the Tribunal by the Building Commission.
Regarding the second item concerned with concrete soffits, the member found the differences in description between Schedule A and Schedule C not to be significant. The bigger issue she confronted was the absence of a preliminary notice in respect of the expansion of the item in schedule A, which was limited to specified areas of two buildings, the alleged concrete soffit defect being widespread throughout the two apartment buildings.
Member Le Miere overcame this disconsonance by inferring that the Building Commission waived or modified the requirement for a preliminary notice (at [108]). This is an illustration of the capacity of the Tribunal to adopt a pragmatic approach to what occurs at the Building Commission stage in identifying what it was that the Building Commission referred to the Tribunal. We note that in the present case, the references to both items 3 and 190 in the notice of proposed complaint and in the Complaint Schedule are identical.
The member then referred to the PBR order, which she stated was intended to cover all soffits to concrete balconies and 'therefore I conclude that the Building Commission accepted complaint item 4 referred to all concrete soffits' (Island Apartments at [110]).
In the 'Conclusion', the learned member said at [115] of IslandApartments:
For the above reasons, the Tribunal finds that the description of the complaints in Complaint Schedule A were added to or clarified by the MPDA Reports referred to in it, and together with the matters set out in the PBR Order formed and were part of 'the complaint' accepted by the Building Commission and referred to the Tribunal.
Our task is to determine the true nature and scope of each of the disputed items having regard to its passage through the Building Commission from lodgement of the complaint document to referral to the Tribunal.
Our consideration - Item 3
The complaint to the Building Commission, in all its constituent items, was supported exclusively by the first ABBC report. In the 'evidence to be relied on' column of the Scott Schedule, exclusive references are made to this report, generally by reference to a particular paragraph. Similarly, in the 'remedy sought' column, the remedy proposed in the 'detail of complaint item' column is said to be pursuant to a particular paragraph of the first ABBC report.
In the case of item 3, the 'remedy sought' and the 'evidence to be relied on' columns refer to page 6 of the report. Paragraph 3 on page 6 of the report is in the precise terms of item 3.
There is no indication in the first ABBC report of the meaning of the expression '01, 02, 03, 04 and 05 layouts', and no other evidence was adduced to assist. Colour-coded plans were tendered (Exhibit 3.43 3.49) without objection, and we have had regard to them.
By way of a schedule to their closing written submissions, the Owners have set out, by apartment number, those apartments shown in the plans which they consider to fall within each designated layout. Somewhat curiously, the schedule includes 'layout 06', with a further set of apartments.
The Owners point out that on the left-hand side of the page of the Exhibits 3.44 (presumably 3.43 was intended) to 3.49, the apartments are described by numbers. Apartments 1.01 to 1.05 (Exhibit 3.43) indicates apartments on level I; apartments 2-6.01 to 2-6.06 (Exhibit 3.44) is a reference to apartments on levels 2 to 6; apartments 7.01 to 7.06 (Exhibit 3.45) is a reference to apartments on level 7; apartments 8.01 to 8.04 (Exhibit 3.46) is a reference to apartments on level 8; apartments 9.01 to 9.04 (Exhibit 3.47) is a reference to apartments on level 9 and apartments 10.01 to 10.03 (Exhibits 3.48 and 3.49) is a reference to apartments on levels 10 and 11 (the latter being the penthouse apartments).
According to the Owners, apartments 1.01, 2.01, 3.01, 4.01, 5.01, 6.01, 7.01, 8.01, 9.01 and 10.01 are 'all apartments layout 01'. Further, 'this methodology is then applied to the balance of the layout types'. Inthe result, ten separate apartments (including one with two levels) were properly classified as layout 01, the same number for layout 02, ten separate apartments are classified as layout 03, nine separate apartments as layout 04, seven as layout 05 and six (including one with two levels) as layout 06.
Pindan pointed out that there is a lack of correlation in the shape and internal layout of some of the apartments to which the Owners ascribe a common layout category. It drew a distinction between levels 2 to 6 on the one hand, and levels 8, 9 and 10 on the other. According to Pindan, upon appropriate crossreferencing of Exhibit 3.43 to 3.49 with the plans allocating apartment numbers, each layout comprises six apartments only. On Pindan's analysis, all apartments on the upper levels commencing at level 7 are excluded.
In circumstances where the author of the first ABBC report, who gave evidence at the hearing, did not give evidence about the issue concerning layouts, it is necessary for us, in discharging our role of determining the subject matter of the dispute referred to the Tribunal, to come to our own conclusion.
We find that the differences in layout configurations of some, but not all, of the upper apartments are so great that they cannot be regarded as having the same layout as apartments in similar locations on lower levels. As one example, apartment 45 on level 8 occupies much of the southeastern aspect of the building that the combined footprints of apartments 3, 4 and 5 occupy on level 1. It would be to give the expression 'apartments with 01, 02, 03, 04 and 05 layouts' no meaning to disregard this reality. Our task is to determine what that expression means.
In excising all apartments from the seventh level up, we consider Pindan to have gone too far. Layouts 01 and 02, which occupy the entire western end of the lower level, are substantially replicated in levels 7 to 10. Although the second levels of apartments 50 and 51 on level 11 are different again, their footprint is sufficiently similar to warrant their inclusion in the same layout categories as their lower floor equivalents. Pindan itself accepted that precise footprint identity is not required, by including apartments 8, 14, 20, 26 and 32 in the same layout as apartment 3 despite the fact that the former cover the entire width of the building and the latter does not. And, having included the former apartments, apartment 38, which has an identical layout, was excluded by Pindan.
Applying the reasoning we have exposed, the apartments which fall within each of layouts 01 - 05 are:
01 1, 6, 12, 18, 24, 30, 36, 42, 46, 50 (both levels)
02 2, 7, 13, 19, 25, 31, 37, 43, 47, 51 (both levels)
03 3, 8, 14, 20, 26, 32, 38
04 4, 9, 15, 21, 27, 33, 39
05 5, 11, 17, 23, 29, 35, 41
We make no finding regarding any layout 06 on the basis that complaint item 3 makes no reference to it, and there is otherwise no basis to expand the item so as to include it.
Our consideration - Item 190
The sole detail provided in the complaint document for this item, in both the 'remedy sought' and 'evidence to be relied on' columns, is 'Pursuant to the Report'.
The first ABBC report, under the heading 'Inspector's observations and comments', contains 184 separate items asserted to be defect items requiring rectification. To a very large extent, the 184 items correspond with items 1-189 in the Complaint Schedule. None of the 184 items reflects item 190 in the complaint.
Nor have we have been unable to find any reference in the first ABBC report to an issue concerning window joins affecting external windows throughout the building, apart from defects of that nature asserted in respect of particular apartments. As far as we can tell, each of those alleged defects is the subject of an individual item in the complaint.
The Owners referred to the general description section of the first ABBC report, where it is stated:
The Owner intends to make a complaint to the Building Commission alleging faulty design, materials and/or workmanship in the construction of the building.
Bearing in mind the need for the description of an item of complaint sufficient for the other party to respond to it, such a general statement will not rectify a want of particularity in the description of the item itself.
The obligation of the Owners to put Pindan on proper notice of its claims required them to disclose its intention to mount the case presented in the Tribunal that the framing of the glazing system throughout the building was underrated. The description 'make good window joins to all external windows' is a pale imitation of such a case, and the only expert evidence at the Building Commission stage makes no reference to it. The Owners' comment in the latest iteration of the Scott Schedule that they were not satisfied that Pindan understands the magnitude of item 190 is consistent with their failure to provide the notification required.
The Owners recognise the breadth of the language of the item, but submit it cannot be said that the actual instances relied upon are not covered by the complaint. Although this may be accepted, it does not advance a consideration of the meaning of the item.
Similarly, the Owners' submissions concerning Pindan's response to the Building Commission (that the item had been completed) and its failure to seek further particulars do not assist the Owners. Those matters again reflect a lack of awareness of any claim approximating the one pursued in the Tribunal.
We are therefore of the view that the more extensive complaint under item 190 relating to water ingress through glazing, separate from claims of a similar nature affecting specified lots in the scheme, was not the subject of the referral by the Building Commission. As such, the Tribunal lacks jurisdiction to hear it.
Glazing Items
Complaint items
The following items in the Scott Schedule are within the Tribunal's jurisdiction and fall for determination:
3, 6, 7, 72, 73, 74, 75, 77, 81, 85, 87, 89, 90, 93, 95, 97, 98, 101, 102, 104, 106, 107, 109, 111, 113, 115, 119, 120, 137, 138, 139, 145, 146, 148, 151, 152, 157, 158, 159, 160, 162, 164, 166, 169, 170, 172, 179, 184, 185, 186 and 188.
Inferentially, item 3 is a complaint of a failure of balcony sliding door glazing to comply with Australian standards having regard to its suitability for water ingress and deflection under wind loadings. The complaint detail includes 'suitable for the height of the building', which may yield different outcomes depending upon the level of the building upon which a particular sliding door is installed.
As we have seen, item 3 is limited to apartments having one of five layouts. However, item 3 is not the only item concerned with water ingress through sliding doors. According to the Owners' statement of facts, issues and contentions (OSIFC), the following items also 'directly relate to' the circumstances relied upon to found item 3: 74, 75, 77, 87, 90, 93, 95, 102, 109, 113, 119, 148, 152, 158, 159, 166, 169, 170, 172, 179, 185, 186 and 188. These items form one of four subsets of the remaining 51 items, which are concerned, in the main, with the cause and/or effect of the alleged leaks which have in the past, and/or may in future, allow water ingress from outside to inside individual apartments in the building.
To the extent that the Owners are successful in establishing liability for those items whose numbers are set out in the preceding paragraph on the same basis as liability for item 3 is being contended, such liability will arise, in addition to the apartments we consider to have one of layouts 01-05, in respect of apartments 45, 49 and 52 under items 166, 179 and 188.
A second subset of items according to the OSIFC comprises 'horizontal window member leak items'. We will return to the detail in due course, but a shorthand description of the complaint surrounding these items is that they involve the incorrect selection of framing around awning windows. The members of this set are listed to be items 72, 73, 81, 85, 87, 89, 90, 93, 95, 98, 101, 102, 104, 106, 109, 111, 113, 115, 120, 137, 138, 139, 146, 148, 160, 164, 172, 179, 184, 185, 186 and 188. It will be noted that some of these items share parentage with one or more of the other subsets.
The third and fourth subsets are smaller and complete the classification of the complaint items.
The third subset comprises complaints regarding leaking in the northwest and south-west corner windows (where unframed glass joins unframed glass). Essentially, the Owners submit that the joining method deployed is inadequate. Complaint item 6 makes the direct allegation, and items 107, 109, 185, 186 and 188 are expressed to relate to it.
The fourth subset concerns penthouse windows together with a window on level 7. Item 7 is in terms 'Make good water ingress through coupled aluminium glazing system at penthouse levels and apartment 40', with items 185, 186 and 188 once again included as manifestations of the problem.
As will be seen, our analysis, and our outcomes on liability, diverge from the classification deployed in the OSIFC. However, in arriving at those outcomes, we have been alert to the need to be satisfied that any finding of liability can be traced back to an item or items of complaint before the Building Commission.
We will commence our consideration by dealing with issues (a) and (b) identified earlier in these reasons. We will then consider liability questions with reference to the expert evidence, the lay evidence, and our reasoning on liability having regard to the parties' competing submissions.
What was Pindan required to do?
The commencement date of construction of the building dictates that itwas subject to a regime previous to the current one under the Building Act 2011 (WA). A component of that regime was the Building Regulations 1989 (WA), which required relevantly:
•compliance with the Building Code of Australia (2007version then current) (BCA);
•an application for a building licence including plans and specifications, and the obtaining of such licence; and
•that no variation from or alteration of approved plans, drawings and specifications occur without the consent of the local government in writing having been first obtained, with any alteration or departure from the approved plans, drawings and specifications, on the notified consent of the local government therefor, being drawn, described, and endorsed on and in the plans, drawings and specifications.
By virtue of these requirements, it was and always remained Pindan's responsibility to ensure that all work was carried out in accordance with the approved plans, drawings, specifications and the conditions of the building licence.
The building licence issued to Pindan for the building is Exhibit 4. Among others, it contains the following conditions:
13.All glazing and windows must be selected and installed in accordance with BCA PartB1.4, AS 1288-1994 and AS 20471999.
30.Adequate stormwater drainage must be provided in accordance with Building Code of Australia Part F1.1 which requires construction in accordance with AS/NZS 3500.3.2. Stormwater from a 1 in 100 year storm event must be prevented from entering the building, and for a 1 in 20 year storm event, stormwater must be disposed of in a way that avoids the likelihood of damage or nuisance to any other property.
Condition 13 replicates the same requirement under the BCA to comply with AS 2047-1999, Windows in buildings selection and installation. This standard contains the following:
Clause 2.3.2.2 Design wind pressure
The design wind pressure for serviceability limit state and ultimate limit state, shall be determined in accordance with AS 1170.2. All local pressure factors and internal pressure coefficients relevant to the location of the window on the building shall be considered.
Clause 2.3.2.3 Deflection Span Ratio
… No structural members in a completely assembled and glazed window shall deflect by an amount greater than span/180, when tested at the serviceability limit state design wind pressure.
Appendix A, an informative provision of AS 2047-1999, states:
A3 Wind Loads for Buildings Other than Housing ... no minimum pressure ratings are recommended in Section 2 as each project should be carefully evaluated by either wind tunnel test or through calculation of each building façade by a suitably competent and experienced person.
The contract drawings for the construction of the building comprise the contract including the Australian Standards 'General conditions of contract' (Exhibit 2), the specification (Exhibit 6) and drawings (Exhibit 3).
Section 007 of the specification deals with windows. It provides relevantly:
General
Scope of work windows
Extent:
External and internal glazing: The provision of glazing systems, consisting of proprietary lines (or suites) of manufactured products, supplied as complete systems that are designed, engineered, manufactured and installed to meet the specific requirements for the project, and are fabricated by specialist firm, incorporating:
Fixed glass windows to apartments:
Glazed with PILKINGTON Comfort Plus 10.38 Laminated
Awning sashes to apartment windows:
Glazed with PILKINGTON Comfort Plus 10.38 Laminated
Sliding glass doors to apartments:
Glazed with PILKINGTON Comfort Plus 10.38 Laminated
Hinged glass doors to apartments:
Glazed with PILKINGTON Comfort Plus 10.38 Laminated
Glass balustrades to apartments:
Slab mounted clear toughened safety glass
Glass balustrades to apartments:
Concrete balustrade mounted clear toughened safety glass
Ground Floor entry shopfront glazing and automatic biparting sliding doors:
Glazed in clear safety glass
Glass pool fence and gates:
1500 mm high, complying with swimming pool codes; glazed in clear toughened safety glass
Glass shopfront glazing to Pool areas, including pivoting and bi-fold doors:
Glazed in clear safety glass
Included:
Provision of accessories, including fixings, flashings, sealants, caulking, weather stripping and the like for necessary tor the proper functioning of the glazing systems
Certifying that the glazing systems meet design criteria
Heat soak testing of all toughened glass
Heat strengthening of all body tinted glass
Hardware, motorised automatic door equipment and the like
Provision for thermal and building movement within each section of the facade glazing systems
Provision of secondary steel framing that forms part of the glazing systems
Provision of all surrounds to windows mounted on the inside of the windows, generally as detailed on the Drawings
Total system
General:
The Contractor shall be entirely responsible for the design and manufacture, together with the supply of materials, workmanship and completion of work included in this trade section at the Specification, which may require consultation with other trades in complying with this intent.
Statutory requirements:
The glazing systems shall comply in all respects with the requirements of all relevant standards and codes, together with the requirements of the relevant authorities and statutory bodies including, but not limited to the Building Code of Australia, Departments of Labour and Industry, and Work Place Health and Safety.
In short, Pindan was required under the contract to provide the entire glazing apparatus for the building, the design of which, also Pindan's responsibility, must meet all statutory, regulatory and contractual requirements.
Significantly for the present case, specification 007 contains the following further requirements:
02.02 RESPONSIBILITY WINDOWS
Durability and performance:
General: The Contractor will be responsible for ensuring a high level of quality control in the manufacture of the windows and glazing systems, in order that the durability and performance criteria imposed by the nature of the environment to which the components will be subjected might be met.
Design:
Included: The window and glazing system components and its support back to the superstructure are to be designed and reinforced to suit their final in place position on the building. It will be the responsibility of the Contractor to ensure that the components are designed and reinforced to meet the requirements of any fabrication, transport, unloading, handling, erection situation and to design, document and provide all devices necessary for the handling of the components.
Certification: A competent Chartered Engineer experienced in this work shall carry out the design work required for the windows and glazing systems installation. All design work shall be submitted to the Superintendent for examination and comment. Examination of such details shall not relieve the Contractor of the responsibility for the performance of components under all conditions.
…
02.04 PERFORMANCE - WINDOWS
Wind loadings:
Terrain category: As outlined on the Structural Engineering Drawings.
Dead loads:
Requirements: Design of external glazing systems is to carry 2 x its own self-weight without causing overstress or excessive deflection of any component.
Basis: Total self-weight (unfactored) shall be used in conjunction with wind load and live load in the design of computations.
Maintenance live loads:
Requirements: Horizontal or near horizontal surfaces, which forms part of the external glazed facades, (e.g. capping, copings, beam encasements, ledges) and which may carry human loads (e.g. from maintenance personnel) , must be capable of supporting such loads in accordance with AS 1170.1 without permanent distortion, failure of seals or fastenings, or other damage.
Design live load - maintenance: 1.5kN.
Earthquake loads:
General: Design the external glazed facades and their anchorages to resist local earthquake forces and other applicable forces.
Standard: To AS 1170.4.
Deflection of the structure:
Provision for long term vertical deflection of perimeter structural beams: The design of the proposed glazing systems shall incorporate specific movement joints at each floor level, generally at window head height, which will accommodate a possible overall deflection of the structural edge beams and the like.
Provision for expansion and contraction within the windows and glazing systems:
Requirement: The design of the proposed glazing systems shall provide an inbuilt allowance for thermal expansion while providing stable and weather tight systems.
Acoustic performance of external glazing systems:
Design: The design of the proposed curtain wall and other external glazing system shall achieve the intrusive noise criteria acoustic performance requirements as outlined in the ACOUSTIC SPECIFICATION as appended.
Glass:
Thickness: The glass shall be designed to accommodate the wind pressures in accordance with AS 1288. The glass thickness shall be chosen to satisfy all performance criteria. The Contractor shall verify glass thicknesses by submission of computations.
…
02.05 CONTRACTOR'S SUBMISSIONS - WINDOWS
Tender submissions:
General: The following items are to be submitted with the Tender submission:
Proposals for proprietary items, together with manufacturer's materials data sheets and the like, providing evidence of quality
Shop drawings:
Shop drawings shall indicate:
•Layouts of the glazing systems (sectional plans, vertical sections and elevations of each building face), including details of structural supports
•Full size sections of typical members including mullions, transoms, sills, beads, sealant beads, glazing gaskets, weather/acoustic seals, glass fin connections and the like, with notes specifying the proposed materials
•Method of assembly including isometric or axonometric and exploded views of typical mullion, transom and panel junctions, including tolerances, rebate depths, edge restraints and the like
•Method of installation
•Provision for differential vertical or horizontal movements
•Location of glass types and thicknesses
•Methods of meeting performance requirements for thermal insulation and the like
•Hardware, fittings and accessories including and visible heads of fasteners
Materials and components:
Product data: Submit published product data of the extrusion suite manufacturer, including:
•Technical specifications of products
•Type test or factory test data for products
•Metallurgical analysis certificates for alloy and temper of metal components
•Recommended procedures for fabrication, glazing and installation
•Schedule of recommended glazing gaskets, sealants, glazing compounds, and the like, including supplier and catalogue number
Organic film coating data: Submit test reports certifying that:
•The paint coatings and thicknesses comply with the specification and warranty conditions
Anchor manufacturer's data: Submit the manufacturers' statement certifying that the cast-inplace channel anchors have been tested to ASTM E 488 for the types of loading required, quoting the test results to show that the anchors will resist the type and magnitude of the calculated design loads, and in particular that there is:
•No permanent deformation of the anchor at 1.5 times the design load
•No failure of the anchor at twice the design load
•No failure of the structural concrete at three times the design load
Wind load deflection criteria: Submit engineering computations certifying that the design deflections have been tested to AS 4284 for Wind Loadings as determined by AS 1170.2.
Earthquake design criteria: Submit engineering computations certifying that the design have been based on criteria to withstand damage from earthquake loads as determined by AS 1170.4.
Work method statements:
Requirement: Submit Work Method Statements before commencing work. Include the following information:
•Methods of anchoring the window assemblies to the building superstructure
Samples:
Requirement: Provide duplicate samples of the following items, being fully labelled as to its trade section, source of supply, together with any relevant data and safety sheets supplied by the manufacturer:
Sections proposed for frame members, accessories, hardware items, cover strips, trim and gaskets
Joints made using proposed techniques
Finishes to prepared surfaces
Colour samples of pre-finished production material (e.g. anodised or organic coated extrusions or sheet, integrally coloured glazing tapes, gaskets), showing the limits of the range of variation in the selected colour
Glass and glazing materials
Panels and other materials to be used in spandrels and other non-vision areas Accessories and hardware items specified descriptively or by performance, including locks, latches, handles, catches, weather seals, anchor brackets and attachments such as masonry anchors
Prototypes:
Requirement: The first installed example of each type will be reviewed by the Superintendent to determine compliance with the Contract Documents. Upon acceptance each first installed sample will become the "quality control example" for assessing compliance of subsequent installations.
Incorporation into the works: Accepted 'quality control examples' in appropriate locations may form part of the completed works; otherwise remove all traces of the work including making good any damage.
…
05.03 JUNCTIONS WITH THE BUILDING - WINDOWS
Flashings and weathering, generally:
Requirement: Install all flashings, weather bars, drips, storm moulds, caulking, pointing and the like so that water is prevented from penetrating the building between the window frame and the building structure, under the prevailing service conditions, including normal structural movement occurring in the building.
Materials: Flashings, weathering and the like shall be corrosion resistant, and compatible with other materials incorporated in the installation, and coated where necessary with a nonstaining compound.
Flashing between other building facade elements and glazing systems:
Requirement: Install flashings between the junctions of other building facade elements and framing of glazing systems so that water is prevented from penetrating the building between the glazing systems and other facade elements; under the prevailing service conditions, including normal structural movement occurring in the building.
Internal trim:
General: Provide matching trims and the like, of material and finish matching frames, as necessary to make neat and clean junctions between the frame and the abutting building surface.
05.04 CONTAINMENT DEVICES WINDOWS
General:
Requirement: The provision of devices, including pressure equalised drained joints, gutters and troughs, which contain water that enters the glazing systems and divert it harmlessly to the exterior.
Baffles:
Containment devices not pressure equalised: Provision of mechanical baffles to drainage outlets such as weepholes and slots.
Inaccessible seals:
Requirement: Seals inaccessible in the system as installed must remain effective for the service life of the curtain wall and window systems.
AS 1170.2-2011, Wind Loads, sets out the following regime for wind load deflections:
1.4 Determination of Wind Actions
Values of wind actions (W) for use in design shall be established that are appropriate for the type of structure or structural element, its intended use, design working life and exposure to wind action.
The following wind actions, determined in accordance with this Standard (using the procedures detailed in Section 2 and the values given in the remaining Sections), shall be deemed to comply with the requirements of this Clause:
Wu determined using a regional wind speed appropriate to the annual probability of exceedance (P) specified for ultimate limit states as given in AS/NZS 1170.0.
Ws determined using a regional wind speed appropriate to the annual probability of exceedance for the serviceability limit states …
AS 2047-1999 permits that some water penetrate to the inside of buildings. We reproduce the relevant provision:
2.3.1.6 Acceptable water penetration is not deemed a failure if:
(i)minor splashing occurs due to air infiltration, within 1 min after change of pressure;
(ii)minor, intermittent leakage on the indoor side of openable sashes, which is contained on sash gaskets, sill tracks and thresholds that are part of a drainage system that allows water to flow to the outside of the product at cessation of the test (constant streams and regular dripping would be regarded as failure)[.]
To summarise, the following criteria needed to be met by the design of the windows. The first three are design load calculations arising under AS 1170-2011 and the fourth is a requirement under clause 05.04 of specification 007:
•Water penetration
•SLS - Deflection limit
•ULS - strength
•Sill capacity
What did Pindan do?
It is agreed that Pindan subcontracted the work involved with installation of the glazing apparatus in the building to Alcom Fabrications Commercial Windows (Alcom). Alcom made recommendations for the selection of glazing systems by their inclusion in shop drawings for approval by the Buchan Group, the project's architect engaged by the developer. In the event, Alcom's recommendations were accepted by Pindan, in making the following selections:
•AWS 541 Series single sliding doors;
•AWS 542 Series double sliding doors;
•AWS 406 Series transoms; and
•AWS 406 Series snap mullions.
During the period leading to the glazing selection being finalised, Pindan requested BG&E, the project engineer, to provide wind pressures for the building. Uncertainty exists as to the precise terms of the request, as Pindan has not been able to produce it. The response of BG&E is disclosed in the affidavit of Mr Pascual Porter, Pindan's construction manager (Exhibit 11), in the form of an email dated 5 June 2017 which states:
Herewith the external wind pressures for the Brighton Apartment building as per your request.
Attached to the email were four A4 sized drawings showing a plan view of a floor of the building depicting:
•external pressures applying to each of the four sides of the building (positive pressures towards the building and negative pressures away from the building) of varying magnitudes, dependent on the wind direction; and
•internal pressures, by notation on the bottom left of each drawing, for example:
Internal pressures will vary locally from -0.85KPa (0.67KPa SLS) to 1.05KPa (0.82KPa SLS) depending on openings
On 5 June 2017, Pindan forwarded the BG&E email on to Alcom, referring to 'wind pressures for One Brighton' without further comment: (Exhibit 11 at paragraph 5 and attachment 'pp1').
The practical application of wind load data was the subject of extensive evidence before us, and in particular by Mr Simon Jewell and Mr Daniel Buckley of Atelier JV, a firm of structural and site engineers, engaged by the Owners to conduct and report on an assessment of the glazing at the building. Mr Jewell set up Atelier JV as owner and director. We are satisfied that both experts are appropriately qualified and experienced façade engineers.
Atelier JV considered the 'external wind pressures' provided in the 5 June 2017 email and their use by Alcom in arriving at their glazing system recommendations.
The Atelier JV report (Exhibit 1.16) emphasises the critical importance of local pressure factors to wind load calculation (at page 253)
The design of façades and cladding elements must consider local pressure factors for external wind pressures, and these external pressures must be combined with internal pressures if they add to the wind load on the façade. Local pressure factors from the AS/NZS 1170.2:2002 code range from 1.25 to 3.0, and increase the design load on the façade considerably. The external wind pressures on the BG&E markups alone are not applicable to the façade design and glazing selection.
The same page of the Atelier JV report refers to the use of the wind pressure markups by Alcom as follows:
Atelier JV were informed that the Structural Consultant for the project, BG&E, provided wind pressure markups to Pindan and these were used by Alcom Fabrications for the glazing selection(s). When compared to our calculated facade wind pressures, it is evident that the pressures on the markup are considerably lower. We then performed another set of wind calculations … excluding local pressure factors and internal pressures. These pressures calculated are what would be used for the design of the main building structure, and are considerably closer to the pressures on BG&E's markups … .Our conclusion is that the wind pressures indicated on BG&E's markups are the external wind pressures only and exclude local pressure factors and internal pressures. Internal wind pressures have been nominated in the bottom corner of the markups as a separate item.
The Atelier JV report included the following uncontroverted commentary regarding water penetration design (at page 254):
For compliance with AS 2047, the window must be rated through testing to withstand water pressures which are calculated to be 30% of the serviceability wind pressures, with no water penetration to the internal areas.
To meet the water penetration ratings listed by AWS, the systems must be installed with sub-sills and AWS proprietary gaskets and seals, installed with quality workmanship. Water penetration of the system, including mullions, transoms. jambs, sills and sub-framing, will also be affected by other factors including fabrication and installation methods and quality[.]
No evidence was adduced by Pindan that water penetration had been considered in the selection of the windows, nor that the penetration was within the bounds of those permitted by AS 2047-1999. Pindan's expert, Mr Brendan McPhail of ADG, façade engineer, concluded that the stepsill and subsill drainage at the balcony threshold at the location of the sliding doors was inadequate to resist water ingress.
Pindan does not claim, and there is no evidence to suggest, that a chartered engineer was engaged consistent with the requirement of 02.02 of specifications 007. It does, however, rely upon a course of consultative events regarding the glazing, including the submission by Alcom of its calculations and recommendations to Buchan, to alleviate Pindan's responsibility. In our view, the unfortunate consequence of Pindan's failure to obtain certification from a suitable chartered engineer was that the correct analysis (along the lines of that conducted by Atelier JV) was not undertaken prior to the commission of the unsuitable glazing.
Relevant to the complaint items falling within the third subset of glazing items, we reproduce the following passage from the Atelier JV report appearing in Exhibit 1.16 at 257-258 which explains the as constructed glazing:
The corner glazing in the apartments at One Brighton (including the North-West and South-West corners) are frameless, using a silicone butt joint detail between the two panels of glass and no mullion, with an ~8mm depth silicone joint measured. The width of the corner glass panels varies from ~520mm to ~1400mm, depending on location. The glass is nominated as 10.38mm annealed laminated glass on the Alcom Fabrication Shop drawings, and this was verified on site by Atelier JV using glass measuring equipment including laminated glass thickness and toughened glass detection tools. The glass makeup consists of 6mm annealed glass/0.38mm polyvinyl butyral (PVB) interlayer/4mm annealed glass. The transom at nominal 2400mm above FFL has been mitred at the corner, but the connection detail between the transoms is unknown.
Our reasoning on window structural components and water penetration
The effect of Atelier JV's evidence was that had the wind pressures provided by BG&E been used in conjunction with internal and local pressure factors as required by AS 2047-1999, the design wind pressures which Alcom took into account in making its recommendations would have been considerably greater.
Atelier JV's assessments of the adequacy of selected window frame components and the corner transom, which appear in Exhibit 1.16 at pages 254-257 and 259-260 respectively, are that all are, variously, unsuitable for water penetration, service limit state or ultimate limit state loading.
Mr McPhail was largely in agreement with Atelier JV's analysis. In particular, he concurred that local pressure factors and internal pressures both needed to be taken into account in assessing design loads for glazing.
In their experts' conferral report, Atelier JV and Mr McPhail recorded the results of assessments of some of the installed windows (Exhibit 1.13 at page 155). There was a substantial degree of consistency between the experts, the differences in their calculations being attributed to the exercise of various discretions and assessments of site conditions. The experts concluded that a number of results for the selected window framing rendered it unsuitable for the required use.
We give the results here in summarised form, the unsuitable outcomes being displayed in bold:
Water Penetration Capacity
Site Water Penetration Pressure
Serviceability Capacity
Site Serviceability
Pressure
Site Pressure Ultimate
Strength
Ultimate Pressure
541 Series Sliding Doors to North, South and West elevations
0.3
>
0.376
1.472
>
1.25
542 Series Sliding Stacking Doors to North South and West elevations
.03
>
0.376
1.289
>
1.25
Transoms used at Series 541 Sliding door heads to North, South and West elevations
0.2
>
0.376
0.983
>
1.26
Transoms used at 542 Series Stacking Sliding door heads to North, South and West elevations
0.2
0.376
<
0.625
>
1.25
<1.367
1.85
AWS 406 Series Type 11 Transoms to North, South and West elevations
0.2
>
0.376
AWS 406 Series Snap Mullions at 2640 span to North, South and West elevations
0.3
0.376
1.162
>
1.25
AWS 406 Series Snap mullions at 2640 span at AJV: within 4.6m of the corners
ADG: within 2m of the corners to North, South and West elevations
2.137
>2.87
AWS 406 Series Split Expansion Mullions at 3200 span to Penthouse Apartments to North, South and West elevations
0.893
>
1.25
0.706
1.85
We find, based on the evidence, that:
•Alcom adopted the external wind pressures shown on the BG&E drawing as the design wind pressure for the façade window design, albeit with some factors applied (referred to in Exhibit 11 annexure 'PP3' - letter from Alcom to Pindan); and
•The window design calculations were not in accordance with AS 2047 nor specification 007;
•The windows were not designed to properly accommodate drainage of water;
•The sills selected had inadequate drainage capacity or provision of under-sill drainage; and provision of devices, including pressure equalised drained joints, gutters and troughs, and mechanical baffles to drainage outlets such as weepholes and slots, was lacking;
•Pindan accepted Alcom's recommendations for the glazing system, in the absence of any input from an engineer; and
•Pindan remained responsible for the glazing system.
The Owners adduced a significant body of evidence of water ingress into the building through doors and windows. The most significant witness of this type was Ms Kylie Flinn, a resident who had been caretaker and at the time of the hearing was building manager. Ms Flinn reported on the sequalae of many rain events, including her interactions with Pindan regarding remediation works necessitated by the leaks. Her evidence was supported by photographs and video recordings.
A number of other lay witnesses gave evidence regarding, in the main, unsatisfactory outcomes of rain events for the apartments they owned and/or in which they lived. This included evidence of water entering apartments through the bottom frames of the tracks of sliding doors, consistent with the inadequacies we have identified in terms of water penetration design and under-sill drainage.
Pindan urged us to exercise caution as regards attribution of a cause consistent with the liability of Pindan, particularly where an inference is required to justify jurisdiction or seek a particular remedy. Further, Pindan submitted that evidence about one location or system should not automatically be applied to others. The penthouse apartments, which have a specific design and construction characteristics, were cited as illustration for this. Pindan further contended that even where a proper basis for complaint under s 5(1) of the BSCRA Act is made out, a building remedy order remains discretionary, and the applicant bears the onus to show why the discretion should be enlivened.
Given our findings above, together with the extensive evidence of actual water ingress on most levels of the building at locations proximate to parts of the glazing system, we do not consider it too great a leap to infer causation of the leaking to the underrated window or door framing in the vicinity. Further, in our view, the Owners are entitled to relief wherever there is a demonstrated failure by the builder to meet the façade engineering requirements of the BCA and the building licence which under Pindan's contract with the Owners were binding upon it, even if leaking has not yet occurred: Diploma Construction (WA) Pty Ltd v South Central W.A. Pty Ltd [2015] WASC 289.
We conclude that the windows which contain the doors, transoms and snap mullions set out in the joint experts' table of results, to the extent that each of them is the subject of the complaint, are unsatisfactory.
Our reasoning on butt jointed glass
The experts' conferral report discloses the opinions of the façade engineering experts about the glazing detail of the glass on glass corners as follows (Exhibit 1.13 at 157):
A mitre joint detail would have been the correct detail to have been adopted in lieu of the butt joint detail adopted in the frameless corners.
Silicone is not warranted in shear in this type of application by the silicone manufacturers. The glass that has silicone on the end of the pane is therefore not supported at this joint. Atelier JV analysed the pane as a 3-side supported panel to check if it could work and found that the glass could reach 341% overstress under full AS/NZS 1170.2 design loads. Serviceability (SLS) deflections exceeded 80mm which means that the silicone would tear in the event of a wind event that met the SLS design loads, leading to potential further leaks
ADG was not instructed to check the detail and therefore could not comment on the suitability in the particular locations. However, ADG agreed that the butt joint detail adopted was not as good as the mitre joint detail.
Some isolated suggestions of water ingress through the north-west and south-west corner windows of the building were included in the evidence of lay witnesses Mr Desmond O'Brien, Mr Mark Spagnolo and Ms Flinn, the cogency of which Pindan challenged. However, the uncontroverted expert evidence to which we have referred leads us to conclude that the butt jointed corner detail was grossly overstretched.
We therefore find that the butt joints in the frameless windows are of poor design and are faulty or unsatisfactory.
Remaining items
Complaint items
The nine nonglazing items remaining in the Scott Schedule when the matter was listed for hearing are 2, 8, 9, 13, 19, 26, 34, 58 and 105. By virtue of negotiation, only items 26, 58 and 105 remain for determination.
We will deal briefly with the agreed items in order to explain their disposition by order, before turning to the items still in dispute.
Agreed items
Item 2
This concerns what is claimed to be inadequate access to switchboard servicing rooms on levels 1 - 7 near lift 3. As accepted in Pindan's closing submissions, the parties have agreed to resolve the item by Pindan removing the door presently creating the non-compliant access. We note Pindan's agreement is without admission of liability in relation to the cause of the alleged non-compliance.
Item 8
In their closing submissions, the Owners accept that this item had been dealt with through a combination of an earlier order to rectify and the failure of the Owners to produce evidence of any further incidence of the alleged defect.
Item 9
In their closing submissions, the Owners accept that no evidence had been adduced to support the claim.
Item 13
The parties have agreed that this item is not in contention and subject to a separate agreement.
Item 19
The Owners withdrew this item.
Item 34
The parties have agreed that this item is not in contention and subject to a separate agreement.
Disputed items
Item 26:Ground floor Make good cracks, chips to water feature wall tiling
The Owners rely upon the following contents of the expert referral report of Mr Booth and Mr Riccardo Martelli and Dr Armand Zurhaar (the latter two experts being engaged by Pindan) regarding this item: (Exhibit 1.40 at page 743)
AZ & RM & AB agree cracking and chips is at mechanical fixing points and is unsatisfactory.
At the hearing, Mr Booth explained the issue as follows:
In the foyer there is a waterfall that cascades over a stone feature, the feature stone tiles. The drawings I was able to source show that it's mechanically fixed and, in my opinion, it's the corrosion of the fixings that is causing the fixings to expand and create this cracking at regular places on the face of the stone.
(ts 11, 25 January 2018)
The first ABBC report contains photographs of the cracks (Exhibit 1.20 at page 476). Although relatively fine, the cracks are apparent from the photograph, particularly where indicated by superimposed arrows.
Mr Booth responded to a question as to how the current issue might be fixed as follows:
It's a question of replacing the stone. The stone is it's a stone finish that has chipped. It's a matter of removing the stone that's there, attending to the fixings, making sure maybe even redesigning the fixings so that you don't repeat the same errors, and then replacing of the stone with similar.
(ts 11 12, 25 January 2018)
Mr Martelli stated in his report: (Ecovera Building Report, Exhibit 1.21 at page 555)
Observations and comments
This item of complaint relates to cracking of the water feature wall tiles in approximately 6 locations. The cracking, which has also deviated from plane, is visible from a normal viewing position of 1.5m and correlates with the position of the mechanical fixings.
The cracking is consistent with the movement or expansion in the fixing points and in my opinion is assessed as faulty and unsatisfactory stop
Action recommended
The respondent is to ensure that the remedial works are completed in a proper and proficient manner, making good all affected surfaces and matching existing finishes.
Immediately following Mr Booth's response, the following exchange occurred between the Owner's counsel and Mr Martelli:
RUSSELL, MR: Mr Martelli, do you agree that that's the appropriate way to fix it? I note in your report that you've said that it's assessed as faulty and unsatisfactory.
WITNESS, MARTELLI: Correct. We would need to replace the stone.
RUSSELL, MR: Right. And any underlying cause?
WITNESS, MARTELLI: Correct.
(ts 12, 25 January 2018)
In its closing submissions and remarks in the Scott Schedule, Pindan relies upon the following submissions:
•It considers the cracks to be the result of ordinary wear and tear.
•The cracks are a result of the wall detail nominated by the developer's consultant.
•There was no evidence that the cracking was the result of any work by Pindan and that was not proper and proficient, or was faulty and unsatisfactory.
•In crossexamination, Mr Booth conceded he had not actually observed any corrosion or inspected the relevant area to determine a cause.
Mr Booth's expert opinion that the corrosion of the mechanical fixings is the most likely cause, given the cracking at regular places on the face of the tiles, forms a basis to reject the first and third submissions. Pindan's own expert witness, Mr Martelli, expressed his opinion in terms that the cracking was consistent with movement or expansion at the fixing points. In context, Mr Martelli's assessment that the cracking is faulty and unsatisfactory, and the action recommended by him in terms that Pindan effect remedial works, is in our view wholly supportive of Mr Booth's opinion.
In light of the substance of the experts' mutual opinion, the source of the nomination of wall detail is irrelevant.
As for Pindan's fourth submission, it is true that Mr Booth conceded not having seen the fixings or any other direct evidence of corrosion. However, as Mr Booth pointed out (at ts 32, 25 January 2018), no destructive testing was undertaken, which would have been necessary to prove beyond any doubt the fixing expansion theory to which both he and Mr Martelli adhere. We are not concerned with such a standard of proof.
We are satisfied, based upon the expert evidence to which we have referred, that the likely cause of the cracking is corrosion of the fixing points, to which the design of the fixing points contributed, and that a remedy involving a different design would resolve the problem. In those circumstances, we assess the building service to be faulty and unsatisfactory.
Item 58:Level 1 pool area Make good cracked west edge of slab due to insufficient expansion joints to tiling and screed
The first ABBC report contains the following details relevant to this item (Exhibit 1.20 at pages 508 and 510):
The pool deck slab is constructed without an edge restraint to tiling at the north and west edges of the deck.
The darkgrey tiling to the pool deck is laid on a screed over the structural slab.
…
A horizontal crack developed at the line of the structural slab on the north and west sides of the pool deck.
The Developer re-built up the north edge of the pool deck and has created a concrete beam anchored to the structural slab at the north edge before re-tiling works.
It is reported that because the Developer had executed such a good job on the north edge, the Builder has agreed to pay the Developer to rebuild the west edge of the full deck.
…
It is concluded that it is likely that movement joints in the pool deck tiling have not been adequately carried through into the substrate as required by AS3958.1-2007 Guide to ceramic tiling.
Differential thermal expansion and contraction forces between the slab and the screed, initiated by the waterproof membrane have translated to the face of the building.
The unsightly crack is considered unnecessary if adequate provision for movement had been installed.
A photograph in the second ABBC report shows the crack in question. Based on the photographs, we can agree with its description of 'unsightly'.
Pindan's responses, in its remarks in the Scott Schedule and its closing submissions, are:
•Pindan has failed to submit any evidence of this item. It was not dealt with by the experts in their joint statement.
•Neither Mr Booth's oral evidence nor his written report established the cause of the observed condition. His opinions should not be given any weight in so far as they were based on what had been told to him by a third party about works done separately by the developer.
Again, we reject the submission of a lack of evidence. Mr Booth's expert opinion, which he confirmed in oral evidence, is that the cracking was caused by a lack of expansion joint. The omission of any assessment of the item in the joint expert report by Pindan's experts, and in particular by Mr Martelli, is attributable to Mr Martelli not having inspected the item, as he was not requested to do so: ts 14, 25 January 2018.
As for Pindan's second submission, we consider that it is within Mr Booth's remit, based on his expertise and experience, to provide the opinion of causation which he did based upon the manifested defect, that is, the cracking. And, in the case of this item, there is no other expert evidence on point. The reference to basing his opinion upon what he was told by a third party is to Mr Booth's responses in the witness box to questions regarding remediation, in which he considered the results of works he was informed by the developer were effected by it at the north edge of the pool deck which, according to Mr Booth, shows no cracking in the corresponding position (ts 12-13, 25 January 2018). This may be relevant to the issue of appropriate remedy, but not the issue of liability with which we are currently concerned.
We are satisfied, based on Mr Booth's evidence, that the likely cause of the cracking on the west edge of the pool deck slab is a lack of expansion joints, and that the building service is faulty and unsatisfactory.
Item 105: Apartment 13 Prevent water intrusion to bedrooms
In the 'complainant's latest information' column of the Scott Schedule dated 3 November 2017, the following further information is provided:
Water ponding on balcony against wall, likely penetrating under the wall.
The only matters raised in the Owners' closing submissions relevant to the item are a reference to Mr Martelli's report and the agreement of Mr Booth and Mr Martelli that the location of the damaged skirting was in bedroom 3 of apartment 13 adjacent to the door.
The Ecovera report (Exhibit 1.21) contains the following relevant passages at 564:
Observations and Comments
This item of complaint relates to some minor swelling of the mdf skirting adjacent the window jambs in the bedrooms.
…
Action Recommended
The respondent is to ensure that the remedial works are completed in a proper and proficient manner, making good all affected surfaces and matching existing finishes.
A reading of the observations of counsel for the Owners and examination of Messrs Booth and Martelli appearing at ts 16-23, 25 January 2018 confirms Pindan's counsel's assertion (ts 20, 25 January 2018) that item 105 had been reduced to an area of damaged skirting in the corner of bedroom 3 next to the door opening to the balcony. It would appear that the original intent of item 105 was considerably broader than this.
The length of skirting now the sole concern of item 105 is identical to the one the subject of item 104. Item 104 has the advantage over item 105 however that it expressly seeks the making good of the waterdamaged skirting.
In these circumstances, we decline to make a building remedy order in relation to this item.
Order
The Tribunal shall issue an order in the following terms:
1.The applicant shall by 21 September 2018 file and serve a minute specifying by reference to individual apartments (particularised using reference numbers in the window framing drawings) the doors, transoms and snap mullions to be rectified consistent with the Tribunal's conclusions on liability in respect of the glazing items.
2.In respect of the remaining items:
Item 19
The applicant is granted leave to withdraw the item and the item is withdrawn.
Items 2, 26, 58
Remedial issues will be considered at the directions hearing referred to in order 3.
Items 8, 9, 13, 34, 105
The Tribunal declines to make a building remedy order.
3.The matter is listed for directions at 9.15 am on 4 October 2018 in order for remedial issues to be considered and programmed to resolution if necessary.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR T CAREY, MEMBER
16 AUGUST 2018
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