THORP and D2R PTY LTD
[2023] WASAT 64
•17 JULY 2023
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION: THORP and D2R PTY LTD [2023] WASAT 64
MEMBER: MS KY LOH, MEMBER
MS M EAST, MEMBER
MR C MARSH, SESSIONAL MEMBER
HEARD: 22 AND 23 FEBRUARY 2023
DELIVERED : 17 JULY 2023
FILE NO/S: CC 1136 of 2022
BETWEEN: JOHN THORP
First Applicant
LEONORA D'ORAZIO
Second Applicant
AND
D2R PTY LTD
Respondent
Catchwords:
Building services complaint - Home building work contract complaint - Whether owners took early possession of works - Whether complaint items constitute incomplete works - Whether departure from approved plans constitute unsatisfactory work
Legislation:
Building Act 2011 (WA), s 3
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(1), s 5(2), s 7(1), s 9(1), s 10(1), s 11(1)(d), s 36(1), s 36(1)(a), s 36(1)(b), s 36(1)(c), s 38, s 38(1)(a), s 38(1)(b), s 43, s 43(1)(a), s 43(1)(b), Div 2
Building Services (Registration) Act 2011 (WA), s 3, s 11
Building Services (Registration) Regulations 2011 (WA), reg 3, reg 13
Home Building Contracts Act 1991 (WA), s 3(1), s 17, s 41(2), s 41(2)(d)
Home Building Contracts Regulations 1992 (WA), reg 2A
State Administrative Tribunal Act 2004 (WA), s 47(1)(a), s 87(1)
Result:
Application partially allowed
Category: B
Representation:
Counsel:
| First Applicant | : | In Person |
| Second Applicant | : | In Person |
| Respondent | : | In Person |
Solicitors:
| First Applicant | : | N/A |
| Second Applicant | : | N/A |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32; (2016) 213 LGERA 81
Wolfenden and Mandurah Homes Pty Ltd [2020] WASAT 127 (S)
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Mr Thorp and Ms D'Orazio entered into a contract with D2R Pty Ltd to build a granny flat on their property in Balga in July 2021.
They had been impressed with an example of a granny flat previously constructed by the builder, but their trust in the builder began to erode when they realised the granny flat had been constructed for a worker of the builder.
The relationship between the owners and the builder became so precarious that a physical altercation ensued between Mr Thorp and the builder's director, Mr Zubowicz, on the day that the owners expected to resume possession of the building site.
The owners claim 52 items of defective building works and failures to comply with the contract for which they primarily seek monetary orders against the builder, as well as costs.
The builder says that the owners have taken early possession of the works without the builder's written agreement, and so the works are at the owners' risk.
We agree that some of the complaint items relate to incomplete works for which the builder has lost the opportunity to complete due to the taking of early possession, rather than being works that were performed in a manner which was not proper or proficient or was faulty or unsatisfactory.
However, there are some works that are considered deficient, or result from a breach of contract, and we will therefore make orders for the builder to pay the owners $15,617.50.
Issue for determination
The primary issue for determination is whether the builder carried out regulated building services in a proper or proficient manner or is faulty or unsatisfactory, and/or whether the builder has breached the terms of the home building work contract.
In considering the primary issue, the following secondary issues arise:
(1)Does the Tribunal have jurisdiction in respect of all items in the owners' complaint schedule?
(2)Did the owners take early possession of the site?
(3)In respect of complaint items related to a building service complaint:
(a)were those works carried out in a proper or proficient manner or were they faulty or unsatisfactory?
(b)if so, whether a building remedy order (BRO) should be made in respect of those works?
(4)In respect of complaint items related to a HBWC complaint:
(a)was there a breach of contract by the builder?
(b)if so, whether a HBWC remedy order should be made in respect of the breach?
(5)Should an order for costs of the proceedings be made?
Background
The following background facts are not in dispute between the parties or are otherwise based on uncontentious documents.
The parties made first contact through an advertisement placed by the owners for the construction of a granny flat.
Mr Zubowicz brought the owners to see a granny flat constructed by the builder for a worker of the builder, although the owners did not appreciate the relationship between the worker and the builder until after they entered into the building contract on 31 July 2021.
The contract is stated as a home building works contract for 'works' particularised as 'granny flat' as described in specifications and drawings prepared by the builder, and on the 'site' particularised as the address of the owner's property.
The contract sum is $120,000 inclusive of GST.
The specifications entitled 'Standard Specification for Brick Construction' were signed by the parties on 31 July 2021, and comprise the Addenda and General Specifications.
The drawings are particularised in the contract as 'A01 A02' dated 31 July 2021.
The contract contains the following relevant provisions:
(a)cl 5 relevantly provides that the builder must commence within 10 working days of the issue of all necessary approvals by relevant authorities, and must bring the works to practical completion under cl 26 within the number of working days stated in the particulars of contract, which was particularised as 180 working days from the date for commencement;
(b)cl 9 provides that unless otherwise agreed, the owners must give immediate possession of the site to the builder on the execution of the contract, and the builder is entitled to continue in possession until payment on practical completion is made under cl 27, and that the builder's possession includes the right to exclude or remove unauthorised persons;
(c)cl 13(a) relevantly provides that the owners have access to the site to inspect and view progress of the works, but only during the builder's normal working hours, unless otherwise agreed by the builder and in a manner which does not prevent the builder from properly discharging the builder's obligations under the contract;
(d)cl 16(a) relevantly provides that the contract may be varied at the owners' request with the builder's consent, which must not be unreasonably withheld;
(e)cl 16(b) provides that the builder may decline to execute any variation unless the owner first gives written notice of the requirements of the variation and gives evidence in response to the builder's written notice requiring evidence of capacity to pay for the variation;
(f)cl 16(c) provides that if the builder agrees to undertake any variation, then the details:
(i)must be in writing setting out the cost, all the terms of the variation, and the date of the variation;
(ii)must be signed by the builder and the owners; and
(iii)the owners must be given a copy of the signed variation as soon as reasonably practicable and before the work to which the variation relates is commenced;
(g)cl 21(a) sets out the grounds for termination by the owners due to default by the builder, including where it refuses or persistently neglects to remove or remedy defective work or improper materials, allowing the works to become materially affected, which entitles the owners to terminate the contract by notice by certified mail if the builder continues the default for 10 working days after written notice specifying the default and stating the owners' intention of terminating the contract;
(h)cl 25(a) provides that the contract sum must be paid to the builder by payments made progressively during the execution of the works, which method of payment is specified in Appendix I as five payments of $22,600 with a deposit of $7,000;
(i)cl 26(a) relevantly defines practical completion as the stage where the works are completed except for any omissions or defects which do not prevent the works from being reasonably capable of being used for their intended purpose by the owners;
(j)cl 26(b), cl 26(c) and cl 26(d) relevantly provides that where, in the builder's opinion, the works reach practical completion, it must give the owners written notice in the form set out in Appendix III, and unless the owners give written notice of matters and things which the owners consider are required to be done for practical completion (which the builder must promptly do to achieve practical completion and give further written notice of practical completion), the works will be deemed to have reached practical completion at the date of service of the builder's notice;
(k)cl 26(e) provides that if the owners take early possession of the works or any part of the works without the builder's written agreement, the date of practical completion will be the date possession is taken, unless practical completion has already been reached;
(l)cl 26(f) provides that on practical completion, the works are at the owners' risk in all respects; and
(m)cl 27(a) relevantly provides that when the works reach practical completion, the builder is entitled to the unpaid balance of the contract sum.
The Addenda relevantly provides as follows:
(a)item B.1 relating to 'Clearing' (for Siteworks) is notated as 'by builder';
(b)item F.1 relating to 'Generally – Feature Face work' is notated at 'Surface finish:' as 'Recycled Bricks';
(c)item H.1 relating to 'Flooring' is notated at 'Type:' as 'smooth hand trowel finish' and item H.2 relating to 'Sanding' is notated at 'Finish:' as 'N/A';
(d)item I.2 relating to 'Door Frames - Timber door frames and thresholds' is notated as 'N/A';
(e)item M.6 relating to 'Tiling Wall and Floor' is ticked (and price indicated) in relation to 'Bathroom 1,' 'Kitchen', 'Laundry' and 'WC', but not for 'Bathroom 2', and no indication for 'Entry' or 'Other';
The General Specifications relevantly provide as follows:
(a)clause B.1 'Clearing' provides that '[t]he areas to be occupied by the building and for a distance of 1800mm clear of the building or to the boundaries of the allotment whichever is less shall be cleared by the [b]uilder unless otherwise stated in the Addenda. This shall include the felling of any trees which are within the area to be cleared and the removal of stumps and roots, all of which shall be carted away by the builder. The lopping or removal of any other trees on the site shall remain the responsibility of the [owners]';
(b)clause B.3 'Termite treatment' provides that '[t]reatment for termites shall be carried out in accordance with the requirements of the BCA';
(c)clause B.5 'Compaction' provides that '[c]ompaction of foundations must conform to the BCA and AS 1289 requirements and be tested and certified. When requested by the Lending Authority a copy of the compaction certificate shall be supplied by the [b]uilder'.
The copy of drawings A01 and A02 dated '07/2021' relied upon by both parties is the copy submitted for building approval, which approval was granted on 18 October 2021.
Drawing A01 was also approved by the Water Corporation, with conditions.
Drawing A01, entitled 'Site Plan', depicts a 'NEW GRANNY FLAT' being constructed near the back eastern corner of the lot behind the 'EXISTING RESIDENCE', and shows a sewerline running parallel to, and within, the back boundary of the lot.
Drawing A01 delineates that the back boundary of the granny flat at '1500 min' from the eastern corner to the sewer line, and '1000 min' from around the western corner to the sewer line (just before the Water Authority access chamber).
There is also an existing patio depicted between the existing patio and the new granny flat, which is described in Drawing A01 as 'EXISTING PATIO (TO BE DEMOLISHED)'.
Based on text messages exchanged between the parties, it appears that construction of the granny flat commenced sometime in November 2021, with the first progress payment made shortly thereafter.
Due to ongoing dissatisfaction by the owners, the parties discussed an arrangement for the builder to hand over the works by close of business 8 April 2022, subject to certain works being completed.
The relationship between the parties had deteriorated to such an extent that there was an altercation between Mr Thorp and Mr Zubowicz on 8 April 2022.
On or about 21 April 2022, the builder issued a notice of practical completion, and the owners paid the final instalment (which had been discounted by $3,000 by apparent agreement of the parties).
On 24 June 2022, the owners lodged a complaint under s 5(1) and s 5(2) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (the Act).
On 24 August 2022, the Building Commissioner referred the owners' complaint to the Tribunal under s 11(1)(d) of the Act.
Owners' case
The items set out in the owners' complaint schedule filed with the Tribunal on 15 October 2022 are set out in the below Table, with their proposed remedy further augmented by submissions and evidence at the hearing:
Item
Location
Description
Remedy
1.
All external electrical cables
External electrical cables are sitting on top of the sand are not buried in accordance with the Australian standards
$1,500 plus GST (per quote by 'Dean Electrician')
2.
All cable penetrations into the building
Not sealed to stop ingress of water into brickwork cavity
3.
Electrical cables in the roof
Not adequately stored
4.
Electrical cables in existing property that runs through the roof to the new dwelling
Not adequately stored
5.
External plumbing
Overflow relief gully found without required height of 150mm to lower spill level in bathroom shower
$23,500 plus GST (per Plumbdog quote)
6.
External plumbing
No reflux valve has been installed to the new dwelling
7.
Existing drainage from original dwelling
Existing draining from original dwelling has been left in place with new construction on top of it. No inspection openings have been installed. Drainage pipe appears to run through the new construction.
8.
External plumbing
Insufficient depth of cover (300mm)
9.
External plumbing
Cold water piping to new dwelling has not been sized in accordance with Australian standards
10.
External plumbing
Hot/cold water service exposed without allowance for depth of cover as per Australian standards
11.
Compaction certificate
No evidence to indicate that the site was compacted to Australian standards
For this to be provided
12.
Roof and external walls
Weather proofing is not in accordance with Australian standards
[No costing provided by owners]
13.
External bedded sills and thresholds
Various sill bricks are deficiently installed and laid without top surface draining away from building
Owners' estimate of cost to rectify items 13, 14, 18 and 19: $1,000
14.
Roof and external walls
Not weatherproof – at openings around windows/doors and adjoining walls
15.
Roof
Roof pitch is not within acceptance of the construction plans and is approx. 12 degrees as opposed to the agreed upon 5 degrees in plan
[No costing provided by owners]
16.
All external gutters
Gutters do not have the required overflow measure. Inadequately installed and crooked
$2,711.90 plus GST (per Tek Roofing quote)
17.
Roof
Numerous roof screws inadequately installed and have been overtightened causing damage
[No costing provided by owners]
18.
External brickwork
Weepholes installed incorrectly: gap is smaller than 75mm
Owners' estimate of cost to rectify items 13, 14, 18 and 19: $1,000
19.
External brickwork
No damp-proof course
20.
External patio posts
Steel posts do not have a concrete mound at the base
Owners' estimate of cost to rectify items 20, 22 and 48: $5,000
21.
Roof
Loose barge capping – requires refixing
[No costing provided by owners]
22.
External patio
C purlin beam to awning installed incorrectly
Owners' estimate of cost to rectify items 20, 22 and 48: $5,000
23.
All internal wet floor drainage
Debris left in service floor pipes
[No costing provided by owners]
24.
Bathroom toilet
Silicone applied without secured anchors
[No costing provided by owners]
25.
Surface of paintwork to top of pelmet
Surface finish of paintwork to top of pelmet is defective in accordance with Standard and Tolerance WA 2019 - 13.03 being not sealed and painted
Actual cost to rectify items 25, 38 and 39: $1,700
26.
Roof void structure
All electrical wiring points not fixed and secured
[No costing provided by owners]
27.
Internal roof
Back blocking does not comply with Australian standard
Owners' estimate of cost to rectify items 27, 28 and 31: $1,500
28.
Internal roof
Areas of insulation that are not fitted correctly and scattered within the roof void
29.
Bathroom floor
Bathroom floor waste has been covered and is not installed to allow water to discharge to the outside
Owners' estimate of cost to rectify items 29 and 30: $5,000
30.
Bathroom floor
Incorrect gradient with insufficient fall
31.
Manhole in the roof
No warning sign
Owners' estimate of cost to rectify items 27, 28 and 31: $1,500
32.
External and internal brickwork
Has never been cleaned
$2,025 plus GST (per FCT Surface Cleaning quote)
33.
Contract: positioning of building
Building is 2.5m from boundary fence. Stamped plans from council maintain new dwelling shall be 1.5m from boundary fence.
Financial reimbursement for additional sand removal and landscaping
34.
Existing patio
Builder failed to communicate to us that the existing patio is to be demolished. There was no discussion about this prior to Builder submitting to the council.
Owners' estimate of cost to rectify: $1,500
35.
External tree stump (contract)
Builder failed to meet contractual obligations that stipulate he was required to remove all tree stumps within 1.5m of the building.
Actual cost to rectify: $220
36.
Sand external to property
Sand was not cleared with a 1.8m perimeter around the new dwelling as outlined in the contract
Actual cost to rectify: $1,500
37.
1 external light on patio
Builder broke light and refused to pay for replacement
Actual cost to rectify: $100
38.
Internal walls
Regardless of above status of the walls, the Builder actually painted the roof and cornices without cutting in which left us no choice but to engage a painting contractor
Actual cost to rectify items 25, 38 and 39: $1,700
39.
Painting of roof/wall cornices
In contract, Builder promised that the finish of the walls would be a smooth white plaster finish with painting unnecessary. His words were that his work would be a 'Hollywood finish'. Finish was far from this, walls were brown, chipped, inconsistent and not to a livable standard.
40.
Existing concrete around property
Damage to driveway concrete and backyard concrete with evident cracks, and oil stains
Owners' estimate of cost to rectify: $2,000
41.
Building site
Builder did not arrange a site toilet for the duration of the project. Builder used his own toilet and connected to the dwelling for the entirety of the project
Appropriate disciplinary measures taken to address this with the builder as he believes he is not required to have a site toilet on any of his jobs
42.
Building site
No rubbish/skip bin the duration of the project. A skip bin was only on our property for the final week prior to 'practical completion'
Appropriate measures taken to address this with the builder as he believes he is not required to have a skip bin on any of his jobs for the whole time
43.
Unprofessional conduct
Builder refused to meet with us multiple times after numerous requests to discuss our concerns with work not being to code or in accordance with plans or contract
Appropriate disciplinary action
44.
External drainage
Builder has failed to install drainage in correct positions according to stamped council plans. He has also failed to use the correct sizes as per plans (ie. has installed 4 x 600mm soakwells as opposed to 3 x 900mm soakwells).
$3,600 (incl GST) (per Soakwells Perth Metro quote)
45.
Internal and external of new dwelling
Property was never cleaned to standard expected for handover and practical completion
[No costing provided by owners]
46.
Inside ceiling and ceiling cornices
Painting was completed by the builder, and 2 x co-workers none of whom (to our knowledge) are qualified/registered painters. No sealer was applied to the ceilings and cornices
[No costing provided by owners]
47.
Termite prevention
Builder did not do termite prevention treatments and maintained when we raised this that he did not have to do so
Owners' estimate of cost to rectify: $1,000
48.
Patio of new dwelling
Patio has not been constructed in accordance with the plans which outline it is to be built at the full width of the building
Owners' estimate of cost to rectify items 20, 22 and 48: $5,000
49.
Post in existing carport
Post damaged by contractor engaged by Builder who replaced but failed to paint
[No costing provided by owners]
50.
Builder entering roof of existing property without consent
Builder entered existing property without consent from us
$150
51.
Existing gate on property
Builder has damaged existing gate. It has been dented in several places and covered in marks. Builder showed complete disregard and care for our property.
$700-$800
52.
Shower screen
We were verbally informed by the builder that the shower screen would be 900mm wide. It is 575mm wide only.
For shower screen to be replaced to agreed upon size at the cost of the builder
The owners hold deep dissatisfaction with the quality of the builder's work, and their concerns about poor workmanship and the standard falling below Australian Standards were confirmed when they obtained a building inspection report from James Lawrence of 'Inspect My Home'.
Mr Lawrence's report identified building defects (items 12 to 31), and included a plumbing report from Plumbdog North Perth identifying plumbing defects (items 5 to 10), as well as an electrical report from 'D Nguyen Electrical' identifying electrical defects (items 1 to 4).
Further, they say some works or actions under the contract were not completed, such as the provision of a compaction certificate (item 11), removal of a tree stump (item 35), clearing of sand (item 36), and termite prevention (item 47).
The owners say that some works as required under plans approved by the council have not been completed, or have been improperly completed, such as the position of the building (item 33), demolition of the existing patio (item 34), installation of external drainage (item 44), and the width of the granny flat patio (item 48).
The owners also say damage was caused in the course of the construction, which the builder should compensate them for having to make good, such as a broken external light (item 37), damage to the driveway and backyard concrete (item 40), damage to a carport post (item 49), potential damage to electrical connections in the roof of the existing property when the electrical contractor entered the roof space (item 50), and damage to the property gate (item 51).
Finally, the owners raise other items which have not been completed in a proper or proficient manner or was faulty or unsatisfactory, such as painting works on the walls (items 38, 39 and 46), and the lack of cleaning of brickworks and the building (items 32 and 45).
The owners rely on quotes for electrical, plumbing, roofing works, brick cleaning and external drainage, and estimate the costs for other items in their complaint.
They also seek the costs of the electrical report, plumbing report, building report and the application fees.
Mr Thorp gave oral evidence at the hearing, and the owners called Mr Lawrence and Mr Douglas Johnson (who has been a contractor for builders to do earthworks for 30 years) as witnesses at the hearing.
Builder's case
The builder relies primarily on cl 26(e) and 26(f) of the Contract to refute any liability for any defective work or damages for breach of contract by virtue of the owners demanding the builder leave the site, effectively taking early possession of the works.
The builder says that the owners had unreasonably pressured the builder to complete works by 8 April 2022 (which is before the date it is required to complete works under the contract) to allow their other tradespersons to enter the site to finish the works.
The builder says that due to the unreasonable conduct of the owners, it has lost the opportunity to finish the works.
If we are satisfied that monetary orders should be made, Mr Zubowicz has indicated his views on the quotes and estimates for certain complaint items, and also seeks to rely on quotes obtained in respect of other complaint items.
Mr Zubowicz gave oral evidence at the hearing, as well as Rhys McFarland (the plumber who worked on the granny flat) and Stan Matejko (the electrician who worked on the granny flat).
The builder also relies on a report dated 10 January 2023 from Joe Arena (a structural engineer) in respect of items 15, 20 and 22.
Legislative framework
Building services complaint
Under s 5(1) of the Act, a person may make a complaint to the Commissioner about a regulated building service not being carried out in a proper and proficient manner or being faulty or unsatisfactory (building service complaint).
Where a building service complaint or a HBWC complaint is accepted by the Commissioner, the Commissioner must cause an investigation of the complaint to be carried out by an authorised person(s), and following consideration of a report by the authorised person, the Commissioner may, relevantly, refer the complaint to the Tribunal for it to deal with under s 38 of the Act: s 7(1), s 9(1), s 10(1), s 11(1)(d) of the Act.
If a building service complaint is so referred, the Tribunal can make a BRO if satisfied that the regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory: s 38(1)(a) of the Act.
If not so satisfied, the Tribunal may decline to make a BRO: s 38(1)(b) of the Act.
A BRO is an order which compels a person who carried out the regulated building service to remedy the building service (s 36(1)(a)), or pay for costs of remedying the building service (s 36(1)(b)) or compensation (s 36(1)(c)): s 36(1) of the Act.
HBWC complaint
Relevantly, under s 5(2) of the Act, an owner under a home building work contract may make a complaint (HBWC complaint) to the Commissioner about a matter referred to in s 17 of the Home Building Contracts Act 1991 (WA) (the Contracts Act).
Section 17 of Contracts Act relevantly provides that an owner may make a HBWC complaint if the owner claims that there has been a breach of the home building work contract, not being a breach in respect of which a BRO may be made.
Similarly to a building service complaint, the Commissioner may refer an accepted HBWC complaint to the Tribunal for it to deal with under s 43 of the Act: s 7(1), s 9(1), s 10(1), s 11(1)(d) of the Act.
If a HBWC complaint is so referred, the Tribunal may make a HBWC remedy order if satisfied that the order is justified: s 43(1)(a) of the Act.
The Tribunal may otherwise decline to make the order: s 43(1)(b) of the Act.
A HBWC remedy order in respect of a HBWC complaint made under s 17 of the Contracts Act consists of one or more of orders set out in s 41(2) of the Contracts Act, including, relevantly, an order that a person pay a specified compensation for loss or damage caused by any breach of the contract (s 41(2)(d)).
'Regulated building service'
'Regulated building service' is defined under s 3 of the Act as any of the following:
(a)a building service carried out by, relevantly, a registered building service provider;
(b)home building work that is –
(i)carried out by a person for another person under a home building work contract or other contract or arrangement for gain or reward; and
(ii)not carried out for a person who is in turn obliged to perform the work under another contract;
(c)any other service or work prescribed for the purposes of this definition.
In turn, the following terms carrying the following definitions:
•'building service' is relevantly defined under s 3 of the Act as 'building work' (as defined in s 3 the Building Act 2011 (WA) (the Building Act);
•'registered building service provider' is defined as having the meaning given in s 3 of the Building Services (Registration) Act 2011 (WA) (the Building Registration Act);
•'home building work' is defined as having the meaning given under s 3(1) of the Contracts Act;
•'home building work contract' is defined as having the meaning given under s 3(1) of the Contracts Act.
Building work
Under s 3 of the Building Act, the definition of 'building work' relevantly includes 'the construction, erection, assembly or placement of a building'.
Registered building service provider
Under s 3 of the Building Registration Act, 'registered building service provider' is defined as 'either a 'building service practitioner' or a 'building service contractor'.
Under s 11 of the Building Registration Act, only building service contractors are entitled to carry out a 'prescribed building service', which is relevantly prescribed in the Building Services (Registration) Regulations 2011 (WA) (Building Registration Regulations) to include 'builder work as a principal builder'.
In turn, relevantly, under the Building Registration Regulations:
•'builder work' means, under reg 13, building work:
a)for which a building permit is required; and
b)with a value of $20,000 or more based on the value of the work estimated under Schedule 2; and
c)carried out in an area of the State set out in Schedule 3;
d)but does not include certain types of building work (which are not applicable to these proceedings).
•'principal builder' is defined under reg 3 as a person who carries out, or undertakes to carry out, the builder work for another person.
Home building work
'Home building work' is relevantly defined under s 3(1) of Contracts Act to include the whole or part of the work of constructing a dwelling (part (a) of the definition) or placing a dwelling on land (part (b) of the definition).
Home building work contract
A 'home building work contract' is relevantly defined as a contract between a builder and an owner for the performance by the builder of home building work for an amount payable under the contract of more than $7,500, and not equal or more than $500,000: s 3(1) definition of 'home building work contract' under the Contracts Act and reg 2A of the Home Building Contracts Regulations 1992 (WA).
Service not carried out in a 'proper' and 'proficient' manner or is 'faulty or unsatisfactory'
In the Macquarie Dictionary Online (as at 17 July 2023), the following terms carry the following meanings:
•'proper' is relevantly defined as '… 2. conforming to established standards of behaviour or manners; correct or decorous[.]';
•'proficient' is relevantly defined as '1. well advanced or expert in any art, science, or subject; skilled[.]';
•'faulty' is relevantly defined as '1. having faults or defects; faulty workmanship'; and
•'unsatisfactory' is defined as 'not satisfactory; not satisfying specified desires or requirements; inadequate'.
Secondary Issue 1 - does the Tribunal have jurisdiction over all of the complaint items in the owners' complaint schedule?
At the outset of the hearing, we brought to the owners' attention that their complaint schedule filed with the Tribunal on 15 October 2022 had added an additional item of complaint (item 52) which was not included in their original complaint to the Building Commissioner on 24 June 2022.
As the Tribunal's jurisdiction is enlivened upon the Commissioner referring the original complaint, we are unable to consider any additional item of complaint that did not form part of the original complaint filed with the Commissioner.
Further, as to items 41, 42 and 43 of the owners' original complaint schedule, they allege that the builder's conduct gives rise to disciplinary action, and seek orders to that effect.
At the hearing, we also brought to the owners' attention that these items were not referred by the Commissioner to the Tribunal as part of a disciplinary complaint under Div 2 of the Act, and so we do not have jurisdiction to determine the complaints raised under those items.
Consequently, we will dismiss the part of the owners' application as it relates to complaint items 41, 42, 43 and 52 as misconceived under s 47(1)(a) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
As to the remaining complaint items relating to a building service complaint, we are satisfied that the works performed by the builder in constructing the granny flat (which is a building, namely, a dwelling), constitutes 'building work' and 'home building work' by a principal builder, and are therefore regulated building services for which a BRO may be made.
As to the remaining complaint items relating to a HBWC complaint, we are satisfied that they relate to home building work performed under a home building work contract for which a HBWC remedy order may be made.
Secondary Issue 2 - did the owners take early possession of the site?
Mr Zubowicz contends that the owners took possession of the works prior to completion of works on 8 April 2022 by asking him to leave the site, and so under the contract they take on the responsibility of the work.
Indeed, there was a physical altercation which he says resulted in him calling the police and having to attend hospital.
The owners do not deny that they asked Mr Zubowicz to leave the site on 8 April 2022 before close of business that day.
The text messages and emails leading up to 8 April 2022 which were filed by the parties provide some insight into their deteriorating relationship.
On 31 March 2022, Mr Zubowicz sent a text message to Ms D'Orazio, referring to 'pressure [a]pplied to complete NOW', and says that the contract grants 180 days for completion from taking possession, and justifies the finish of works by the end of June 2022.
He says that while he had pledged to make efforts to hand over in 4.5 months, market permitting, the market has not permitted, although if the owners accept doing their own tiling he can 'hand over' next week.
Ms D'Orazio responded by email that day, expressing dissatisfaction over certain items of work, and proposed to Mr Zubowicz that, subject to rectification of these items, they 'accept' Mr Zubowicz's 'practical completion date offer of next Friday'; failing acceptance of their proposal, they will formally proceed with terminating the contract and lodge a complaint with the Building Commissioner.
On 2 April 2022, Mr Zubowicz responded by text message that he 'accept[ed] [her] demand'.
On 7 April 2022, by text message, Ms D'Orazio sought assurance that the granny flat would be finished the next day, and Mr Zubowicz replied that he would 'do [his] best to meet [her] targets that day', but that the 'personal deadline enforced completion' was '[her] baby'.
Ms D'Orazio replied by text message that Mr Zubowicz had 'enforced this deadline on [himself]'.
Early on the morning of 8 April 2022, Mr Zubowicz advised the owners by text message that whilst their requests to hand over the keys 'ahead of the Contract Practical Completion time' were received in the best of faith, and that they wanted to 'take possession at the certain deadline by coming Saturday as [they] had "trades lined up to complete the granny flat" and continue to act as a Builder', he was uneasy about this arrangement as it was not clear that their intention was to terminate the contract and walk away 'free with no come back'.
He proposed the parties sign a mutual agreement of termination of the contract that day and that in the meantime he would continue with his work as planned.
He then sent a text message to the owners later that day advising that the contract had reached the stage of 'Practical Completion', and asked that they submit a 'punch list' of any defective items which are discovered on inspection, none of which (he considered) prevented the granny flat from being occupied.
It is not in dispute between the parties that a mutual agreement of termination was not signed.
Further, the parties do not contend, nor have they provided any evidence to support, that a variation in accordance with the requirements of cl 16 of the contract has been made; in particular, that the cost and all the terms of the variation are in writing and signed by the parties (cl 16(c) of the contract).
In the absence of written and signed variation of the contract varying the date of practical completion, we are not satisfied that the date of practical completion was properly brought forward to 8 April 2022.
Further, even if we accept that early text messages from Mr Zubowicz indicates the builder's agreement for the owners to take early possession of the works, it is clear by the later text messages that the terms of any agreement reached by the parties were not clear to him, such that he requested a mutual agreement of termination be signed.
We are therefore not satisfied that there is sufficient evidence of the builder's written agreement to early possession of the works by the owners.
Assuming the date for commencement was the date of approval of the building permit (18 October 2021), works must be brought to practical completion within 180 working days of 18 October 2021 (which is 27 June 2022, excluding public holidays).
As such, by entering possession of the site and asking the builder to leave the site on 8 April 2022 before the date of practical completion, this constitutes taking early possession under cl 26(e) of the contract.
By taking early possession, this brings forward the date of practical completion for which the builder is entitled to the unpaid balance under cl 27(a) of the contract, and the works become at the owners' risk in all respects under cl 26(f) of the contract.
In our view, the effect of the taking of early possession is that any works that remain outstanding or incomplete by virtue of the builder's possession to the works being effectively revoked by the owners cannot be considered to be works which were carried out in a manner which was not proper or proficient, or was faulty or unsatisfactory.
However, to the extent that any works already undertaken by the builder can be shown, at the time that the owners resumed possession of the land, to have been carried out in a manner which was not proper or proficient, or faulty or unsatisfactory, there remains a basis for the making of a BRO.
Similarly, to the extent that any failure by the builder to comply with the contract is reasonably attributable its possession to the works being revoked, we consider that any loss or damage resulting from such failure to have been caused by the early possession taken by the owners rather than as a breach of contract.
Secondary Issue 3 - were works carried out in a proper or proficient manner or was faulty or unsatisfactory, and if so, should a BRO be made?
Given the precarious nature of the relationship between the parties, and the indication by the owners at the hearing that they do not wish the builder to return to the site to undertake works, we accept that the most appropriate orders in the circumstances are monetary BROs under s 36(1)(b) or (c) of the Act.
Items 1 - 4 (electrical works)
The owners rely on an Electrical Safety Inspection & Report, labelled 'D Nguyen Electrical', licence number EC1310, EW167390, dated 10 May 2022, in support of these complaint items.
The report refers to the address as being the owner's property address, with reference to the granny flat behind the main house.
It is presumed that the electrical report is written by 'D Nguyen', who is presumed to be a licensed electrician.
The D Nguyen Electrical report provides the following particulars:
(a)'Note 1: Cables are to be adequately secured, being a steel framed roof cables should be secured with either tape or cable ties to the steel truss where possible. With the exception of non accessible areas where the space between the roof sheet and the top of gyprock ceiling is less than 600mm. Plug bases do not need to be secured as long as the cables are adequately secured'. (item 3);
(b)'Note 2: Cable penetrations into the building should be sealed with a water repellent sealant to stop ingress of water into the brickwork cavity'. (item 2);
(c)'Note 3: Cables run underground shall be buried at a minimum depth of 500mm. Cables buried underground require "Underground danger tape" approximately 50 100mm above the conduit, along the whole length of the conduit whilst it is underground'. (item 1).
The D Nguyen Electrical report attaches:
(a)a photograph that references note 1 (item 3), showing what appears to be cables in the roof space where there is insulation against one side of the roof;
(b)two photographs that reference note 2 (item 2), showing what appears to be cable that penetrate into the granny flat walls from the outside; and
(c)a photograph that references note 3 (item 1), showing what appears to be cables running partially above the ground into what appears to be the granny flat.
As to item 4, there is no reference to this complaint item in the D Nguyen Electrical report.
The owners rely on a quote obtained by text message from 'Dean Electrical', which states that '[a]t an estimate your main cost is the underground cable' and 'I would say a full days work [plus] material. Looking at $1500 plus GST'.
Mr Matejko, who has been an electrician for 30 years, attests that the electrical cables had been laid underground as legally required, but that he had to dig it up again as he was told that paving was going to be laid.
He acknowledges that the cables in the roof were messy, but on the day that he was going to fix it up there was an altercation between Mr Thorp and Mr Zubowicz so he was not allowed to go on site.
Mr Matejko attests that at the builder's request, he had asked another electrical company, Double Spark Electrical Services (Double Spark), to provide a quote for the following works that needed fixing, as well as the cost of installing a warning sign in the roof:
(a)external sub mains buried (as required): $250 (item 1);
(b)all cables penetrations into the building to be sealed: $45 (item 2);
(c)all cables and plug bases in roof to be secured: $120 (item 3, item 26);
(d)sub-main in the existing house roof space to be secured: $120 (item 4);
(e)warning sign to be installed in the roof: $25 (item 31);
(f)roof insulation to be fitted correctly: $95 (item 28).
The costs in the quote are stated to be inclusive of GST.
Mr Matejko states that if he was undertaking the works, he would not have charged anything, but considers the quote from Double Spark to be reasonable, given they may need to go into the roof space and submain, and would undertake about 3-4 hours' worth of work.
He states that the quote includes the cost of labour.
In cross-examination, he disagrees that the cable needs to be completely replaced, as he considers that the cable he installed is long enough.
Mr Matejko presented as a truthful and honest witness, who was willing to accept where parts of his electrical works were left in an unsatisfactory state and needed to be remedied.
The reliability of his opinion, evidence, and truthfulness of his factual evidence, was not challenged by the owners.
We also accept his evidence that he would not have charged any extra cost to undertake the further remedial works, but that he had obtained a quote which he considered reasonable.
As to item 1, while we have not been taken to the relevant standard for burying of the external sub main cables by either party, the evidence of the 'D Nguyen Electrical' report and Mr Matejko is generally consistent with a legal requirement for external sub main cables to be buried at a minimum depth.
Thus, we will accept that Mr Matejko was asked to pull up the cables, we find it unsatisfactory for the cables to be left up over ground for any period of time contrary to the legal requirement, and therefore find that there has been defective work performed on behalf of the builder in respect of item 1 to justify the making of a BRO.
Having had the opportunity to interrogate Mr Matejko about the quote from Double Spark, we prefer to rely on the itemised item of $250 including GST in making the BRO in respect of item 1 rather than the text message quote by 'Dean Electrical', the basis of which we have not had the opportunity to test.
As to items 3 and 4, we consider that these are works which a builder may properly leave to the final stages of completion to finish off, which opportunity was lost when the owners took early possession of the site.
We accept Mr Matejko's evidence that he had planned to 'fix up' the messy roof cables, but that he was effectively prevented from doing so when the owners took early possession of the site.
Such works, in our view, are not properly characterised as works which were carried out in a manner which were not proper or proficient or were faulty or unsatisfactory; rather, they constitute incomplete works.
As such, we decline to make a BRO in respect of items 3 and 4.
As to item 2, Mr Matejko did not expressly state that he had also intended to seal the cable penetrations into the building on 8 April 2022, as such, we are satisfied that it is work that is not proper or proficient, and will adopt the amount of $45 (inclusive of GST) as itemised in the Double Spark quote in making a BRO.
Item 26 (electrical work)
This item is referred to in Mr Lawrence's report as a separate item, in which he describes the defect as 'all electrical wiring points such as GPO/J boxer/Transformer are required to be fixed and secured within the roof void structure. The builder is required to demonstrate why the unsecured electrical elements are not in accordance with AS3000-3.9.3. Refer to Electrician Report within 4.0'.
However, we consider this to be encompassed within item 3 of the complaint and dealt with within the 'D Nguyen Electrical' report.
For reasons set out in [119] - [121], we consider this item to be an incomplete work, and will decline to make a BRO in respect of this item.
Items 5 - 10 (plumbing works)
The owners rely on a 'report' contained in a tax invoice from Plumbdog dated 10 May 2022 in support of these complaint items, which provides the follow particulars:
(a)'Over flow relief gully found without required height of 150mm to lower spill level in bathroom shower. Client reports that a reflux valve has not been installed to the property. AS3500 Part 2 clause 4.6.6.6 and 4.6.6.7' (items 5 and 6);
(b)'Existing drainage from original dwelling has been left in place with the new construction above. No inspection openings have been installed. Drainage piping appears to be through the footings of the new construction. AS3500 Part2 clause 3.8.2 b (footings) and 4.7.1 (inspection openings)' (item 7);
(c)'Paving or poured concrete has not been selected for the finished floor outside the new construction leaving no allowance for sufficient depth of cover (300mm). AS3500 part2 clause 3.7.2' (item 8);
(d)'Cold water piping to new construction has not been sized in accordance with AS3500 part1 Section 3. Pipe sizing for cold water main to combined dwellings calculated with a pressure drop of 35m head at 25mm' (item 9); and
(e)'Cold water service is exposed without allowance for depth of cover as per AS3500 Part 1 clause 5.9. Hot water service is exposed without allowance for depth of cover as per AS3500 Part 4 clause 4.9.2' (item 10).
The owners also rely on a quote from Plumbdog in relation to 'Price Cost Estimate to Rectify Plumbing Work to New Construction of Dwelling' dated 10 August 2022. The overall quote of $25,850 inclusive of GST is itemised according to the following items:
(a)'Rectify sanitary and drainage plumbing to dwelling including installation of reflux valve. Note Guarantee cannot be given that depths of drainage can be achieved': $18,450
(b)'Install new cold water main from water meter to dwelling and main home in 25mm': $4,600
(c)'Install/rectify hot and cold-water supply piping to dwelling at approved depth of cover': $2,800
Mr McFarland, who is the director of McFarland Plumbing that has been operating for 11 or 12 years, and is a licensed plumber and gasfitter for 19 years, attests that he had undertaken some pre-laying work with others at the property, and some of his workers had done some of the plumbing work on the property.
In cross-examination, he states that the specifications for the plumbing work were in the architectural plan and were discussed on site.
He accepts that there should have been a reflux valve installed, but then when they did the pre-lay, they were told that there would be a hob shower and so a reflux valve was not required.
He has since been advised that the hob has been removed.
Mr McFarland says that the hot water system was moved during the construction.
He also says that the embankment of tyres was moved sometime during construction, and that plumbing works had been uncovered.
He is of the opinion that a piping upsize to a 35 metre head is not needed.
He says that when he tried to attend site to sign off on the plumbing works, he was not allowed to attend site due to the altercation on the property.
Mr McFarland provided a quote in the amount of $3,100 plus GST for the following plumbing works which is further required:
(a)all plumbing works to be carried out to AS3500;
(b)supply and install 100 millimetres reflux valve at main IS behind new dwelling ($1,850 plus GST);
(c)install new water main from existing dwelling to new in 20 millimetres Rehau ($1,250 plus GST);
(d)lower existing water pipes around new dwelling to comply with AS3500; and
(e)plumbing compliance sign off once completed.
When asked why the discrepancy between the Plumbdog quote and his own quote was so significant, Mr McFarland says that it is common to get divergent plumbing quotes, and that he 'stands by' his quote.
Mr McFarland presented as a frank and honest witness, whose reliability as an expert witness nor truthfulness as a witness of fact was not challenged by the owners.
In the absence of a licensed plumber from Plumbdog who can speak to the Plumbdog report and against whom the basis of the report can be tested, and accepting Mr McFarland's evidence that it is not necessary for cold piping upsize, we are not satisfied that work, as particularised in item 9, was undertaken in a manner which was not proper or proficient, or which was faulty or unsatisfactory.
Otherwise, Mr McFarland accepts that a reflux valve should be installed, that a new water main should be installed, with water pipes being lowered to comply with AS3500, and as such we are satisfied that items 5 - 8 and item 10 constitute work which was not carried out in proper or proficient manner, or is unsatisfactory.
For similar reasons to [140], we prefer the quote by Mr McFarland of further plumbing works required to rectify the defective works, and will adopt the amount of $3,400 (inclusive of GST) in making a BRO in respect of items 5-8 and item 10.
Items 12 - 25, 27 - 31 (building works)
The owners rely on the condition inspection report of Mr Lawrence in relation to an inspection conducted on 5 May 2022 in support of these complaint items.
Mr Lawrence is a building inspector, with experience as a carpenter and joiner since 1975, has done work for the State and Commonwealth as a trainer and assessor, and has been a registered builder since 1993.
Mr Zubowicz, who is a registered builder since 1983, with a background as a soil engineer, and is the sole director of the builder for about 7 years, gave oral evidence in relation to these complaint items.
Item 12
Mr Lawrence's report makes the following finding:
Roof and external walls shall be weatherproof where split roof intersect to prevent the penetration of water/moisture that could cause:
a)unhealthy or dangerous conditions, or loss of amenity for [o]ccupants; and
b)undue dampness or deterioration of building elements.
The builder is required to demonstrate why the weatherproofing of this segment of the roof area is not in accordance with the NCC - P2.2.2 / F2.2.2 / P3.3.4 and Standards & Tolerance WA - 5.01[.]
Mr Zubowicz attests that he did not see any problem with the weatherproofing, but concedes maybe more silicon could be applied.
He states that he would usually do the roof cover as soon as possible to open up work for other trades on the job.
He says that the detailed work of applying silicon and screws are done at the very end at the last stage because if it is applied too early, workers will not be able to step on the roof.
Whilst accepting Mr Zubowicz is not an independent expert witness, we have found him to be a suitably qualified building expert and an honest witness who, on the whole, has been willing to make concessions about workmanship issues.
We accept his explanation about silicon work on the roof being left to the last stage as reasonable, and therefore find that this constitutes incomplete work, and will decline to make a BRO in respect of item 12.
Item 13, 14, 18 and 19
As to item 13, Mr Lawrence's report makes the following finding:
Solid bedded sills and thresholds should be laid with top surface draining away from building.
The builder is required to demonstrate why various sill bricks are deficiently installed in accordance with the 'Standard and Tolerance' WA - 3.19
Mr Lawrence testifies that when he checked whether the sill diverted water away, it had failed.
In cross-examination, he says that sills usually have protective tape, and will be sealed afterwards around the windows.
He says that once protective tapes are taken off by the builder, the supervisor will arrange a glazier to come and do sealing work.
When asked whether it was practical to do this where there is a flyscreen, Mr Lawrence considers that must be weatherproof, and so would seal the sills before a Practical Completion Inspection.
Mr Zubowicz accepts Mr Lawrence's opinion that the sills are not compliant with building requirements, and needs to be rectified.
As to item 14, Mr Lawrence's report makes the following finding:
Roof and external walls INCLUDING openings around windows and doors adjoining walls shall be weatherproof to prevent the penetration of water that could cause:-
a)unhealthy or dangerous conditions, or loss of amenity for [o]ccupants; and
b)undue dampness or deterioration of building elements.
Refer to Standard and Tolerance WA - 9.02 window and doors not weather-tight.
The builder is required to demonstrate why the weatherproofing of the openings is not sealed in accordance with the NCC - P2.2.2 / F2.2.2 / P3.3.4 and is defective in accordance with Standards and Tolerance WA 2019 - 9.02.
Mr Zubowicz admits that works to remedy item 14 need to be undertaken.
As to item 18, Mr Lawrence's report makes the following finding:
Weepholes shall have a clearance of a minimum 75mm above an exposed slab/brickwall, finished ground, landscaping or paving level.
The builder shall demonstrate why the weepholes are NOT 75mm above exposed concrete/brickwall in accordance with Minimum Australian Standards AS3660.1 – FIGURE 2.1 (one example) NEW BUILDING WORKS, AS4773.1 – 14.8.2, 4773.2 – 9.6.1 and the NCC 2019 – 3.3.5.9.
…
Weepholes shall be provided wherever it is necessary to drain moisture from or through masonry construction. No evidence of Damp-Proof Course (DPC) that should be incorporated into the masonry.
Weepholes shall be provided in the masonry course immediately above the DPC at centres not exceeding 1200mm.
Weepholes are required for any window wider than 1m where there is no overhang, or the roof overhang is not 3 times the distance between the top of the window and the bottom of the roof.
The builder is required to demonstrate why the weepholes are not in accordance with the AS3700 -4.7.2 WEEPHOLES and the 2019 NCC - 3.3.5.9 (a) (2).
Mr Lawrence accepts that weepholes can be installed after practical completion, and can be done with concrete drills.
Mr Zubowicz admits that works to remedy item 18 need to be undertaken.
As to item 19, Mr Lawrence's report makes the following finding:
[DPC] shall be provided to protect all masonry against rising ground water and or downward passage of moisture through masonry.
The DPC shall be placed as low as possible in the wall and in no case higher than the finished floor level.
DPC is to prevent moisture or dampness from rising into the building with an impermeable membrane for protection of locations below a DPC or in contact with the ground shall be a continuous waterproof sheet membrane such as that used for protection of slab on the ground.
The builder is to demonstrate why no DPC was present in accordance with the Minimum Australian Standards AS 4773.1 – 4.4/14.8.2, AS 4773.2 – 9.6 & AS 3700 – 4.7.3 and the NCC 2019 – 3.3.5.8.
Mr Lawrence testifies that he did not see any indication of a DPC, despite using a torch to look inside the weepholes, and would have expected to see the DPC come through to the outside.
He also says that it did not look like parging was done properly or in a constant manner, with parging done over only some areas and not others.
Mr Zubowicz relies on the photograph which he took at the site (which is contained at page 308 of the electronic hearing book prepared by the Tribunal and provided to the parties) as evidence of having installed a DPC.
We have reviewed the photograph, and, as a panel constituted by members including Mr Marsh, who is a registered builder and has sufficient knowledge and experience to interpret the photograph, are satisfied that the photograph shows a DPC under the slab.
We find that a DPC was installed as part of the works, and therefore decline to make a BRO in respect of item 19.
In terms of a BRO for items 13, 14 and 18, Mr Zubowicz has obtained a global quote for items 13, 14 and 18 of $660 inclusive of GST, while the owners' have provided their own estimate of the cost of rectifying items 13, 14, 18 and 19 at $1,000.
Given that the owners' estimate includes costs of a DPC which we have already found was installed, and their lack of experience in the building field, we prefer Mr Zubowicz's quote for items for which we are prepared to make a BRO, and will make a BRO in respect of items 13, 14 and 18 of $660 (inclusive of GST).
Items 15, 20 and 22
As to item 15, Mr Lawrence's report makes the following finding:
Roof pitch is approximately 12 degrees, this is not within acceptance of the construction plans being 5 degrees pitch.
Refer to construction design A02 within 4.0
The builder relies on Mr Arena's report, which is based on a site inspection on 14 December 2022.
Mr Arena is a qualified chartered professional structural engineer on the National Register with 43 years' experience in engineering consultancy primarily in residential projects.
Mr Arena opines that a 12 degree pitch is structurally acceptable, and was an aesthetic choice by the builder.
Mr Zubowicz says that he had decided that an increased angle would give better value for the front façade, and so made the decision on the spot to increase the pitch to 12 degrees.
Mr Zubowicz concedes, when asked by the Tribunal, that no variation of contract was signed to change the roof pitch, nor did he consult with the owners before he made the decision to change the pitch to 12 degrees.
While we accept Mr Arena's opinion that the change in pitch is structurally adequate, there has nonetheless been a departure from plans that were approved for the purpose of the building permit, and there has been no amended plans lodged and approved to reflect this departure.
We have no evidence on whether the City of Stirling would have approved this departure, and so cannot assume that to be the case.
As such, we consider that the departure from approved construction plans constitute work which does not satisfy specified requirements under the building permit approval, and as such, was unsatisfactory work.
As to item 20, Mr Lawrence's report makes the following finding:
Steel posts are required to have concrete mound at the base to prevent water and soil gathering around such posts creating rust/corrosion.
The builder is required to demonstrate why the mound is not installed in accordance with the Minimum Australian Standards AS1684.2 - FIGURE 8.4.
Refer to construction design S01 within 4.0.
Mr Arena opines in his report that:
The drawing stipulates two thick coats of bituminous paint applied to the posts minimum 100mm above concrete. This has been provided which provides a high level of corrosion protection thereby not requiring the mound.
Mr Zubowicz says that Mr Lawrence has also applied the wrong Australian Standards, as AS1684 relates to construction of timber-framed buildings, which does not apply to these works.
While we accept Mr Arena's opinion that the mound was not required, and that Mr Lawrence may have referred to an inapplicable Australian Standard, for reasons similar to that in [177] - [179], we find this departure from approved construction plans constitute unsatisfactory work.
As to item 22, Mr Lawrence's report makes the following finding:
'C' purlin beam to awning installed horizontally to the building and not 5 degree rake to accommodate missing barge cap…
Refer to construction design A02 within 4.0.
Mr Lawrence testifies that these observations were contrary to the construction plans.
Mr Arena disagrees that the 'C' purlin beam has been incorrectly installed on the following basis:
The purlin beams have been adequately fixed to the posts and brickworks. The purlins have been fixed directly to the posts with 214g TEK screws. The fixing to the brickwork has been provided via 65 x 5EA steel angle brackets with 2-M10 masonry bolts to brickwork and 2M10 bolts to purlin. The fixings have ben reviewed and found to be structurally adequate.
Whilst we accept Mr Arena's opinion that the works are structurally adequate, for reasons as set out in [177] - [179], we consider the departure from approved construction plans to be unsatisfactory work.
As the parties have amalgamated their cost estimates to include item 48 for these items, we have determined the remedial costs for items 15, 20 and 22 in conjunction with that determined for item 48 at [262] [264].
Item 16
As to item 16, Mr Lawrence's report makes the following finding:
Gutters do NOT have the required overflow measure. Gutters are inadequately installed, this may lead to water penetration into roof void and or wall cavity causing issues.
This does not comply with the acceptable overflow measures BCA (NCC) - 3.5.4.2 - (a) and Manufactures installation Instructions of the era of installation, rectification required.
Mr Lawrence testifies that the National Construction Code (NCC) requires an overflow prevention system, which he did not see at the inspection.
He states that there were several ways to achieve an overflow prevention system, such as slots in the gutters, but he did not observe slots in the gutters.
When asked in cross-examination whether an overflow system has been built in by constructing the back higher than the front (by five to six courses), Mr Lawrence said yes, as long as it was within NCC requirements.
Mr Zubowicz attests that the gutters do have overflow and therefore comply with the building requirement, as the front is 5 to 6 courses lower than the back.
As Mr Lawrence appears to accept that there is an overflow system as described by Mr Zubowicz, we are not satisfied that work, as particularised in item 16, was undertaken in a manner which was not proper or proficient, or which was faulty or unsatisfactory.
Items 17 and 21
As to item 17, Mr Lawrence's report makes the following finding:
Numerous roofing screws have been over tightened causing damage and or has compressed the neo-washers, repairs required to prevent any damage to roof sheets. Release pressure of NEO washers and or replace damage NEOs.
The builder is required to demonstrate why the roofing screws are not installed in accordance with the Manufacturer's Instructions and Minimum Australian Standards HB 39 – B4.1.5 / 6.4.3.
Mr Lawrence agreed in cross-examination that tightening screws is a simple task.
As to item 21, Mr Lawrence's report makes the following finding:
Loose barge capping requires refixing into position. Capping required to be fixed at an interval not exceeding 500mm in accordance with HB 39 - 8.7 …
Mr Zubowicz admits that minor works to remedy items 17 and 21 need to be undertaken, and has provided a quote for such works at $300 inclusive of GST.
The owners have not provided any costing evidence for these works, and so we adopt the builder's quote of $300 (inclusive of GST) in making a BRO in respect of items 17 and 21.
Item 23
Mr Lawrence's report makes the following finding:
All internal wet floor drainage in wet areas that is installed to discharge water/waste shall be kept open and clean of debris to function, remove builder's/debris (not flush) where required …
The builder is to demonstrate why the builder's debris is left in the service floor pipes that is not in accordance with the NCC Vol 3 - CP1.1 (1&2) and CP2.1 (1&2).
Mr Lawrence testifies that he used a camera to see into the floor waste, which had builder's debris which one would expect to be cleared before commissioning.
Mr Zubowicz attests that he did not notice the debris in the service floor pipes in the final inspection, and agrees that it will need to be removed.
However, there has been no costing estimate provided by the owners to remedy this item; as such, we have insufficient evidence on which to make a BRO, and so decline to do so in relation to item 23.
Item 24
Mr Lawrence's report makes the following finding:
Toilet pan/s has been silicone down only without secured anchors.
Correct method is to fix/anchor the pedestal tight to floor by means of either 'Silicon AND Anchor' or 'Sand and Cement'.
The builder is to demonstrate why the pan is not installed in accordance with the Minimum Australian Standards AS/NZS3500.2 – 11.27.2 and/or Manufacturer's Installation Guidelines (STYLUS).
Mr Lawrence attests that a fixing bracket needs to be installed for this toilet pan.
Mr Zubowicz accepts that the manufacturer's guidelines indicate that a bracket is required to be installed, and says that this will be part of the costs quoted by Mr McFarland at [137] to bring all plumbing works to compliance.
We therefore find that the works, as particularised at item 24, has not been carried out in a proper or proficient manner, and is faulty or unsatisfactory.
While the owners have not provided a cost estimate for remedying this item, we accept Mr Zubowicz's contention that the cost for remedying this item is incorporated in those adopted for items 5 – 8 and item 10.
Item 25
Mr Lawrence's report makes the following finding:
Surface finish of paintwork to top of pelmet is defective in accordance with Standard and Tolerance WA 2019 - 13.03 being not sealed and painted …
Mr Zubowicz contends that there is no contractual requirement to paint the top of the pelmet; we agree that the Addenda does not provide for those works, and as such, are not satisfied that work, as particularised in item 25, was undertaken in a manner which was not proper or proficient, or which was faulty or unsatisfactory.
Items 27, 28 and 31
Mr Lawrence's report makes the following finding:
Backblocking requires a minimum of 200mm in width and not less than 30mm from end of joists. The builder is to demonstrate why the backblocking does not comply with Manufacturer's Requirements Standard and Tolerance - 9.11 and Minimum Australian Standards AS2589 - section 4.4.4.2.6 …
Mr Lawrence testifies that 'backblocking' (that is, joining two sheets together under the ceiling with gyprock in between) is required by manufacturers, and that AS2589 requires backblocking for anything more than 3 sheets.
Mr Zubowicz says that he uses a hybrid construction of the ceiling by using suspended ceiling, which is a good performer.
Otherwise, he does not appear to dispute that he has not installed backblocking in accordance with the Australian Standards, and as such, we find that he has not carried out work in a proper or proficient manner, and which is faulty or unsatisfactory in respect of item 27.
Mr Zubowicz estimates that an hour's worth of work will be necessary, which should cost $300 including GST.
As to item 28, Mr Lawrence's report makes the following finding:
There are areas of insulation that are not fitted correctly and/or are scattered within the roof void.
Appropriate fitting of insulation is essential to assist in increasing energy efficiency of the dwelling …
Mr Lawrence attests that the insulation looked scattered and not sufficient or effective, which would affect the energy rating.
Mr Matejko denies disturbing the insulation in the roof space, but has nonetheless obtained a quote from Double Sparks for fitting the roof insulation correctly at $95 (including GST).
It is reasonable to infer that the insulation was left in the state as found by Mr Lawrence by the builder or its contractors, as such, we are satisfied that the work particularised at item 28 was not carried out in a proper or proficient manner, or was unsatisfactory.
As to item 31, Mr Lawrence's report makes the following finding:
The Australian/New Zealand standard committee released an amendment to (Wiring Rules December 2012). Among many other additions or alterations to the Standard, a new clause requires the installation of a warning sign.
Where recessed downlights are installed in an accessible roof space, a permanent and legible warning sign shall be installed in the roof space adjacent to the access panel, in a position that is visible to a person entering the space.
Other Minimum Australian Standard sets out lettering height, font, viewing distance and the specific colour of yellow background for this sign. The sign must be fitted within the roof space, in view and within 2m of roof void access panels.
The builder is required to demonstrate why the warning sign is not installed in accordance with the AS/NZS1319, AS/NZS60598.1 and AS/NZS 3000-4.5.2.3.2.
Mr Matejko attests that he was going to put a warning sign in front of the manhole, but was unable to do so as he was not allowed to attend the site.
The quote from Double Sparks estimates this cost at $25 including GST.
We are satisfied with Mr Matejko's evidence that this would have been work he would have attended to, but for the early possession of the site by the owners, and as such constitutes incomplete work in respect of which we decline to make a BRO.
The owners did not obtain a quote for works in respect of items 27, 28 and 31, and instead provided their own estimate of the total cost at $1,500.
The owners did not provide a basis for their estimate, and given their lack of experience in the building field, we prefer to rely on the quotes and estimates provided by Mr Zubowicz and Mr Matejko in making a BRO in respect of items 27 and 28 respectively.
Items 29 and 30
As to item 29, Mr Lawrence's report makes the following finding:
The bathroom floor waste has been covered and is not installed to allow any excessive water to discharge to the outside.
Mr Lawrence attests that the owners had advised that a floor waste service pipe had been installed but he could not see it by way of a grate.
As to item 30, Mr Lawrence's report makes the following finding:
It is required that wet area floors tiling surfaces have sufficient falls towards the floor wastes to avoid excessive water entering other regions of the building.
The bathroom floor does not have the correct gradient. The builder is required to demonstrate why the falls to waste in the wet areas are not in accordance [with] the Minimum Australian Standards AS3958.1 - D1/3 and NCC - SA 3.2.2 being between 1:80 (12.5mm/1m) to 1:100 (10mm/1m) to outside of shower and 1:60 (16.7mm/1m) to 1:80 (12.5mm/1m).
Refer to Standard and Tolerance WA 2019 – 12.01 in conjunction.
Mr Lawrence states that he used a leveller in assessing that the levels were not within tolerances.
He says that he did not put water on the floor.
In cross-examination, whilst he does not recall what the falls in the shower were, he recalls it was insufficient.
He says that the falls in the bathroom were insufficient (less than 1:100), although he concedes he did not do a water test.
The photograph taken by Mr Lawrence also showed a spirit level being used, albeit it did not extend across all of the floor.
Mr Zubowicz attests that the owners had wanted to maximise space in the bathroom, and so a call was made that there would be no hob in the shower and their tiler had to completely re-engineer the floor so as to run the entire floor towards the shower.
He then covered over the floor waste in the bathroom as it was no longer necessary.
The owners did not contest that they sought this variation to the plans to the bathroom, nor allege that this departure constitutes a breach of contract.
Given that Mr Lawrence did not do a water test nor used a spirit level that was long enough to cover across the whole floor, and that he was not aware of the re-engineered fall in the bathroom, we consider that he would not have measured the falls in the correct location.
We also accept Mr Zubowicz's contention that it was appropriate to cover the floor waste once the floor was re-engineered with the hob removed.
As such, we are not satisfied that the works, as particularised in items 29 and 30, were carried out in a manner which was not proper or proficient, or was faulty or unsatisfactory, and will decline to make a BRO.
Items 33, 34, 44 and 48 - non-compliance with approved plans
As to item 33, the owners allege that the granny flat was constructed more than 1.5 metres from the boundary fence, as indicated on the approved plan (A01), and in fact is at least 2.5 metres from the boundary fence.
The owners claim the remedy of financial reimbursement for additional sand removal and landscaping, although they have not quantified the cost of the remedy.
Mr Zubowicz contends that it is the owners' responsibility to indicate where the building should be positioned, and that if they were not sure, they should get surveyor's pegs.
In any event, the plans indicate a minimum setback of 1.5 metres, and he considers it to be within the builder's discretion to set the building back further than 1.5 metres.
As the plans appear to set a minimum, rather than a fixed setback, we are not satisfied that there has been a departure from the approved plans, and we will decline to make a BRO in respect of item 33 (which, in any event, we have insufficient evidence on costs in order to make a BRO).
As to item 34, the owners contend that the plans require the existing patio to be demolished, even though the builder did not communicate this to the owners.
Mr Zubowicz contends that there is no contractual requirement to demolish the existing patio.
Whilst we do not have a full copy of the building permit approval, we expect that, given that the contract does not provide for the demolition of the existing patio, that the builder did not apply for approval to demolish the existing patio.
Further, the indication on the approved plan does not make clear when (and by whom) the existing patio is to be demolished.
As the contract does not provide for the existing patio to be demolished, and we cannot be satisfied that City of Stirling will require the existing patio to be demolished as part of the building permit approval, we are not satisfied that there has been a departure from the approved plans or the building permit approval, and will decline to make a BRO in respect of item 34.
As to item 44, the owners contend that the size of soakwells installed departs from the approved plans, which required three 900 millimetres soakwells, rather than the four 600 millimetres soakwells which the builder installed.
Mr Zubowicz says that the decision as to how many soakwells and the position of those soakwells is that of the builder, as long as water remains within the boundary of the lot.
He says he had problems with the 900 millimetres soakwell, which would have required a crane, and while he had in mind that he needed smaller soakwells at the time the drawings were approved he did not consider this at the time they were drafted.
Mr Zubowicz says that the position he chose is better for performance and is confident in the system; indeed, it is better for soakwells to be further from the building for termite control.
Whilst we accept Mr Zubowicz's justification for changing the size of the soakwells, given that he did not seek amendments to the approved construction plans and for reasons as set out in [177] - [179], we consider the departure from approved construction plans to be unsatisfactory work.
The owners however were not able to obtain a quote for three 900 millimetre soakwells, and have only been able to obtain a quote from Perth Metro Soakwells for a 1300-litre capacity poly heavy duty soakwell, plus supply and installation of storm water pipe and connection to downpipes, of $3,600 including GST.
Mr Zubowicz also contests the reasonableness of the quote, and says that the work as quoted in the Perth Metro Soakwells quote can be undertaken for $1,500 (including GST).
We are not satisfied that the works represented in the Perth Metro Soakwells conforms with the approved construction plans either, and as such, without any evidence of the cost to perform conforming works, we decline to make a BRO in respect of item 44.
As to item 48, the owners say that the granny flat patio was not constructed to its full width according to the approved plans, and is 300 millimetres short on both ends.
Mr Zubowicz says that when the owners requested moving the hot water system, he had met with them and suggested that given it was an electric system that it is best that it not sit under the patio roof, and they had consented to that.
He then made a decision to shorten the patio roof on the other side by 300 millimetres as well, and considers that as the builder he has the power to some extent to make these decisions.
While there may have been good reason for Mr Zubowicz's choices about shortening the patio on either end, for reasons set out in [177] - [179], we consider the departure from the approved construction plans to be unsatisfactory work.
In oral testimony, Mr Thorp says that he has estimated the cost to pull down and replace the patio at $5,000, based on what he has seen advertised, which would remedy the deficient works identified at items 15, 20, 22 and 48.
Mr Zubowicz has estimated that it would cost $2,200 (including GST) to remedy items 15 and 48.
We are satisfied that there is sufficient basis to adopt the owners' estimate of the costs at $5,000 to remedy items 15, 20, 22 and 48.
Items 32, 38, 39, 45 and 46 - defective work
As to items 38, 39 and 46, Mr Thorp contends that it is in the contract for the builder to paint the ceilings and walls, but when the builder painted the cornices, he only did a strip of ceiling paint (of a brush's width) across, and when he painted the ceiling, he did not sand it down and did not apply sealant.
Mr Thorp also says that the painting was not done by qualified painters but by labourers, and relies on photographs filed with the Tribunal on 15 October 2022 (page 779 of the hearing book) to support his contentions that the painting work was defective.
Mr Zubowicz attests that he does not normally entertain painting of internal walls as he will need to be responsible for the licensed painter and especially for a freshly painted plaster job.
He concedes that the painting of walls is in the contract, but it only provides for two coats of acrylic paint.
He says there were further text exchanges between the parties about amending this requirement.
Mr Zubowicz says that the tiler had applied four coats of Solver 3in-1 paint, and it was not necessary to use a qualified painter for jobs up to $1,000.
From our review of the photographs relied upon by the owners, it appears that the painting on some of the internal walls are not totally uniform and consistent, and the edges of the painting are not clean and tidy and have run up over the walls and down past onto the floors.
As painting works for the walls and ceiling were part of the contract, we do not consider the painting works were performed in a proper or proficient manner, or is unsatisfactory.
We infer from Mr Zubowicz's reference to a 3-in-1 paint being used that it includes a sealer, and we accept this evidence that there was therefore sealant applied to the painting work.
As such, we do not find any basis for finding that the works, as particularised in item 46, were performed in a manner which was not proper or proficient, or is faulty or unsatisfactory.
However, we find that painting works for the walls and ceiling were part of the contract, and the observed state of the walls did not indicate that such works were performed in a proper or proficient manner, or were unsatisfactory, and will make a BRO in respect of items 38 and 39.
The owners say that they paid $1,700 to a painting contractor to paint the walls and pelmet.
Mr Zubowicz estimates that it would cost $1,300 (inclusive of GST) to paint the walls, and an extra $200 (inclusive of GST) to paint the pelmet.
We prefer the costs submitted by the owners as the actual costs incurred to rectify items 25, 38 and 39 in making a BRO, although we would deduct from that $200 given our determination at [210] to decline to make a BRO in respect of item 25 (in relation to the pelmet).
We therefore adopt an amount of $1,500 (inclusive of GST) in making a BRO in respect of items 38 and 39.
As to item 32, the owners rely on their photographs filed with the Tribunal (page 788 of the hearing book) to establish that the bricks were filthy with construction remnants and have not been cleaned, and some had yellow stains.
They obtained a quote for $2,025 plus GST from FCT Surface Cleaning for the cleaning of all external walls and the internal feature.
Mr Zubowicz says that the contract provided for recycled bricks to be supplied for the feature face work, which would not have required cleaning, although the owners wanted different bricks, so he ordered them through his supplier.
Mr Zubowicz does not refute that there were construction remnants on the bricks nor that there were yellow stains, and in our view, whether recycled bricks were required to be used or not, it should be part of proper and proficient builder's practice to clean any bricks used.
Mr Zubowicz obtained a quote from George Ylias for $550 including GST to pressure clean the external brickwork.
Neither party has called the contractors who provided quotes for the cleaning work to give evidence at the hearing.
We are prepared to accept that the owners quote is more comprehensive of the cleaning work that is required, and will adopt the amount of $2,227.50 (which is inclusive of GST) in making a BRO in respect of item 32.
As to item 45, Mr Thorp says that the granny flat was dusty, musty and dirty, and they spent a weekend cleaning it.
Mr Zubowicz says that cleaning usually happens at the end of the contract, and he did not manage to clean the site when he was dismissed on 8 April 2022.
We accept that cleaning is expected to be undertaken in the final stages of works, which the builder was deprived of the opportunity to undertake due to early possession of the site by the owners, and therefore decline to make a BRO in respect of item 45.
Items 37, 40, 49, 50 and 51 - damage to property
As to item 37, Mr Thorp attests that Mr Zubowicz had advised that he had touched the external light and it exploded, so they had to purchase another one at $120.
Mr Zubowicz says that it is the builder's practice to ask owners to supply their own lights, although the builder is contractually bound to take maximum care.
Mr Zubowicz agrees that he touched the light when installed, and although it was not a tough touch, it came clean off the mounting plate, and thinks it was of poor construction.
Without any further evidence about the state and quality of the light when Mr Zubowicz touched it, we are not satisfied that the light was defective before he touched it, and find that it is unsatisfactory work not to replace the light (even if the builder is not responsible for supplying the light), and will adopt the amount of $120 in making a BRO in respect of item 37.
As to item 40, Mr Thorp accepts that the middle part of his driveway was already in a poor condition, but that to the sides there was new concrete poured on the driveway when they widened it, and that the whole of the driveway was damaged when the builder carried bricks down the driveway with a bobcat.
He says that the concrete on the existing patio has also been damaged.
He concedes that the only access to the construction site was through the carport, and whilst he did not deny access to the site, he was not expecting that much damage to be caused.
In cross-examination, he did not recall a conversation with Mr Zubowicz about using the driveway to bring bricks down with a bobcat.
Mr Zubowicz says that at a handover meeting between the owners and him, they discussed boundaries of common and exclusive use, and he asked the owners if he could use the driveway to bring materials by bobcat, such as sand.
He asked the owners how they would feel if there was additional damage to the driveway, and Mr Thorp had said that he was not fussed by any additional damage as they were going to replace the driveway after the granny flat was built, and so Mr Zubowicz did not take any extra precautions when using the driveway.
Mr Zubowicz did however recall the owners saying to be careful on one part of the driveway.
In our view, given that the only access to the site is via the driveway, we consider that the owners should have reasonably expected that heavy machinery such as bobcats will be required to use the driveway to transport materials such as bricks and sand.
We are satisfied that the fundamental issue of access would have been discussed between the parties, and accept Mr Zubowicz's evidence that he had broached the subject of potential damage to the driveway with bobcats having to drive over the driveway, and that the owners did not raise any objection to that prospect.
As such, we do not consider that there has been works, as particularised in item 40, which were performed in a manner which was not proper or proficient, or was faulty or unsatisfactory, and will decline to make a BRO in respect of item 40.
As to item 49, Mr Thorp attests that when the bobcat was there, it smashed a post, and whilst it was replaced by the builder, the post was not painted.
Mr Zubowicz says that the post was replaced by a brand new column, but as it had lubricant, it was not a good time to paint the post until after 3 months, when the lubricant had come off.
He says that the painting would take a minute, and that he had planned to paint it at the end of the job, but did not have the opportunity when asked to leave on 8 April 2022.
We accept Mr Zubowicz's explanation for why the post could not be painted straight away, and that he had intended to paint it at the end of the works, so that this constitutes incomplete, rather than defective, works, and will decline to make a BRO in respect of item 49.
As to item 50, Mr Thorp says that Mr Zubowicz and Mr Matejko had accessed the roof in the existing house without prior permission from the owners, and since then, there has been no power to one of the rooms.
He says Mr Matejko has had a look and could not see why the power was affected to one of the rooms, and he had to spend $300 on repairs to the electrical wiring, for which he seeks reimbursement of half of that amount.
He says that the existing house was built in 1965, and was extended in the late 1990s (with the affected room being in the original part of the house).
Mr Zubowicz concedes that Mr Matejko did use the roof of the existing house, but asserts that he needed to do so as they could not access the cavity of the sub-mains.
Further, he considers it a 'long shot' to link the electrical issues in the room to access to the roof by Mr Matejko.
In the absence of evidence as to what caused the power outage to the room, we cannot be satisfied that it was as a result of any works by the builder that was not performed in a manner which was proper or proficient, or was faulty or unsatisfactory, and will decline to make a BRO in respect of item 50.
As to item 51, Mr Thorp says that the gate was barely a year old at the time that the builder removed it during construction and threw it on site, causing damage.
He says a new 1.3 metre steel-framed gate with colourbond sheeting costs about $700-$800, and they spent about $1,500 for the gate, post and extra panels.
The owners rely on photographs which they took of the gate, which we can observe has scratches and dents to its panels.
Mr Zubowicz says that he had arranged for the gate and side fence to be removed to allow ample access for the bobcat, and had positioned the gate in the owners' section of the site, which he did not visit or store anything else.
He says that the gate was sitting in that section until it was reinstalled.
Whilst he noticed a few dents when the gate was reinstalled, he did not recall whether those dents were already there before the gate was removed.
We do not consider there is sufficient evidence that the damage to the gate was caused by any works undertaken by the builder, and so decline to make a BRO in respect of item 51.
Secondary Issue 4 - was there a breach of contract by the builder, and if so, should a HBWC remedy order be made?
Item 11, 35, 36, 47
As to item 11, Mr Thorp says he asked Mr Zubowicz for a copy of the compaction certificate, but Mr Zubowicz said he did not have to provide one to him, even though the contract requires the compaction to be certified.
Mr Zubowicz accepts that he has some problems finding the original compaction certificate, although contends that the contract only entitles the bank to request a copy from the builder, not the owners.
We agree with the builder's interpretation of cl B.5 of the General Specifications forming part of the contract, and are not satisfied that there has been a breach of the contract and therefore decline to make a HBWC remedy order in respect of item 11.
As to item 35, Mr Thorp says that the tree stump is about 1.5 metres from the boundary fence, and is within 1.8 metres of the granny flat, which area is required to be cleared under cl B.1 of the General Specifications.
Mr Zubowicz says that the obligation to clear under the contract only requires clearing of vegetation, not tree stumps.
Mr Thorp says that it cost $220 to remove the stump, and Mr Zubowicz agrees to the reasonableness of that cost.
In our view, the provisions of cl B.1 of the General Specifications clearly require clearing of an area occupied by the building and for a distance of 1800 millimetre clear of the building (or up to the boundaries, if less than 1800 millimetre), which clearing expressly includes the removal, and carting away, of stumps by the builder.
The builder's failure to do so constitutes a breach of the contract, and we accept that an amount of $220 is appropriate to compensate the owners for the loss suffered as a result of the breach.
As such, we find that it is justified to make a HBWC remedy order that the builder pay the owners $220 in respect of item 35.
As to item 36, Mr Thorp relies on two pages of photographs filed with the Tribunal on 15 October 2022 (pages 776-777 of the hearing book) as evidence of sand not being cleared from the property.
Mr Thorp says that they paid $1,500 to remove the sand, which Mr Zubowicz accepts as reasonable.
We observe from some photographs of the constructed granny flat that the sand appears at slab level.
Mr Johnson attests that the photographs were similar to the condition of the site as he saw it on 5 March 2022.
He says he was amazed by how much sand was left, and considered that it should have been removed once slab was laid and brickwork went up, as it would have made access tight.
Mr Johnson was asked to do the earthworks for this site, and could not remove all the sand in one visit, and instead had to attend three times.
In cross-examination, Mr Johnson attests that he is not sure about the NCC requirements for clearing of the site, but based on his experience, he considers that that the builder should clear the whole site especially when access is difficult.
Mr Zubowicz contends that the photographs reviewed by Mr Johnson were old as it did not show the patio which had been built.
He says that he removed soil as far as level to top of footing and bottom of the slab.
He says the NCC only requires sand to be removed as much as is necessary, so he was only required to remove sand up to the slab level.
In our view, the requirement to clear under cl B.1 of the General Specifications includes sand, which has not been contested by the builder.
Whilst the photographs relied upon by the owners do not appear to reflect the most recent state of the site, Mr Zubowicz does not contend that sand was cleared after the patio was installed, and we accept the evidence of Mr Johnson that the condition of the site was generally as observed in the photographs – that is, that the sand was only cleared at slab level.
We do not consider that at that level, that sand has been cleared from the site as required under cl B.1 of the General Specifications, and as such, there has been a breach of the contract.
We accept that an amount of $1,500 is appropriate to compensate the owner for the loss suffered as a result of the breach, and so we find that a HBWC remedy order that the builder pay the owners $1,500 in respect of item 36 is justified.
As to item 47, Mr Thorp says that Mr Zubowicz told him that no termite prevention had been undertaken as he did not need to do it.
Mr Zubowicz attests that the granny flat is a termite-proof house, and that its primary building elements are steel, and so in accordance with AS3660.1, they are not required to undertake termite treatment.
He says that the slab is termite-proof and it is a steel-frame building, so there is no presence of wood in the building.
Mr Zubowicz has mentioned to the owners that he did not provide chemical treatment.
In any event, Mr Zubowicz has obtained a quote from Arrow Pest Control for the amount of $550 inclusive of GST, which Mr Thorp accepts is reasonable.
We accept Mr Zubowicz's evidence that there is no presence of wood in the building, (which is consistent with the Addenda) and that there is no requirement for termite treatment, which has not been challenged by the owners.
We do not consider that there has not been a breach of the contract, and will decline to make a HBWC remedy order in respect of item 47.
Secondary Issue 5 - should an order for costs of the proceedings be made?
The owners seek the costs of their application to the Tribunal ($240) and for the costs of their electrical, plumbing and building reports (amounting to a total of $1,085).
Legal principles
The principles for costs recovery, in the context of a building dispute, have been considered in the decision of Wolfenden and Mandurah Homes Pty Ltd [2020] WASAT 127 (S) (Wolfenden), and we adopt the principles as articulated in that decision as relevant to this costs application.
As stated in Wolfenden, the starting point under s 87(1) of the SAT Act is that each party is to bear its own costs: Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32; (2016) 213 LGERA 81 (Questdale) at [50].
Where one party seeks its costs, the question is whether, in the particular circumstances of the case, it is fair and reasonable that it be reimbursed for the costs it incurred: see Questdale at [49] and [51].
The onus is on the party seeking an order in its favour: Questdale at [51].
In this case, we do not see any reason to depart from the starting position that each party is to bear its own costs, particularly as we did not ultimately rely on the plumbing report, and there has only been partial success in the application, with only 24 of the 51 items claimed in the original complaint being established.
We have also taken into account that seven of the complaint items may not have arisen but for the action of the owners in taking early possession of the works.
Finally, some of the deficient items may well have been able to be addressed by the builder on a 'punch list' following notice of practical completion.
We therefore dismiss the owners' application for costs.
Conclusion
For reasons set out above, we find that the builder has not carried out regulated building services in a proper or proficient manner or which were faulty or unsatisfactory, in respect of complaint items 1, 2, 5-8, 10, 13-15, 17, 18, 20-22, 27, 28, 32, 37-39 and 48 and will make a building remedy order that the builder pay the owners $13,897.50, comprising of the sum of the following amounts:
(a)$250.00 in respect of item 1;
(b)$45.00 in respect of item 2;
(c)$3,400.00 in respect of items 5 - 8 and item 10;
(d)$660.00 in respect of items 13, 14 and 18;
(e)$300.00 in respect of items 17 and 21;
(f)$300.00 in respect of item 27;
(g)$95.00 in respect of item 28;
(h)$5,000.00 in respect of items 15, 20, 22 and 48;
(i)$2,227.50 in respect of item 32;
(j)$1,500.00 in respect of items 38 and 39; and
(k)$120.00 in respect of item 37.
For reasons set out above, we find that the builder has breached the contract in respect of items 35 and 36, and will make a HBWC remedy order that the builder pay the owners $1,720, comprising the sum of $220 and $1,500.
Orders
The Tribunal makes the following orders:
1.The application as it relates to complaint items 41, 42, 43 and 52 is dismissed as misconceived under s 47(1)(a) of the State Administrative Tribunal Act 2004 (WA).
2.The application is otherwise partially allowed.
3.Pursuant to s 38 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), the Tribunal makes the following building remedy order, in accordance with s 36(1)(b) and s 36(1)(c):
(i)on or before 4 August 2023, the respondent must pay the applicants the sum of $13,897.50.
4.Pursuant to s 43 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), the Tribunal makes the following HBWC remedy order, in accordance with s 41(2)(d)(i):
(i)on or before 4 August 2023, the respondent must pay the applicants the sum of $1,720.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS K Y Loh, MEMBER
17 JULY 2023