THUMOLANO and AFRA CONSTRUCTION PTY LTD
[2013] WASAT 189
•21 NOVEMBER 2013
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)
CITATION: THUMOLANO and AFRA CONSTRUCTION PTY LTD [2013] WASAT 189
MEMBER: MS N OWEN-CONWAY (MEMBER)
MR N HARRISON (SESSIONAL MEMBER)
HEARD: 19 AUGUST 2013
DELIVERED : 21 NOVEMBER 2013
FILE NO/S: CC 367 of 2013
BETWEEN: LESEGO PETER THUMOLANO
Applicant
AND
AFRA CONSTRUCTION PTY LTD
Respondent
Catchwords:
Remedial work not undertaken as requested Faulty and unsatisfactory building work Turns on own facts
Legislation:
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 11(1)(d), s 36(1)(b)
Result:
Successful in part
Summary of Tribunal's decision:
The applicant provided the respondent with an expert builder's report as to the defects in construction of his home unit following possession by the applicant. The respondent disagreed with the applicant. By the time of the hearing and the Tribunal's site inspection, a number of the complaint items had been remedied. In respect of some of the complaint items, the Tribunal did not accept that the complaints were supported on the evidence. The Tribunal made orders that the respondent pay to the applicant the reasonable costs of remediating three complaint items out of the 11 complaint items advanced by the applicant.
Category: B
Representation:
Counsel:
Applicant: In Person
Respondent: Mr F Afrasiabi
Solicitors:
Applicant: N/A
Respondent: N/A
Case(s) referred to in decision(s):
Thumolano and AFRA Construction Pty Ltd [2013] WASAT 17
REASONS FOR DECISION OF THE TRIBUNAL:
The application
On 7 March 2013 the applicant lodged a building complaint in the Building Commission of Western Australia. The complaint annexes a complaint schedule identifying 11 items of complaint. The applicant is the proprietor of a survey strata lot being Lot 16, 15 Ferguson Street, Falcon, and the recipient is the entity that constructed the strata home unit on that property pursuant to a contract between the parties. The circumstances surrounding the contract and the contractual relationship between the parties for the construction of the home unit are referred to in Thumolano and AFRA Construction Pty Ltd [2013] WASAT 17.
The Building Commission of Western Australia referred the complaint to the Tribunal pursuant to s 11(1)(d) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) whereupon the complaint became an application in the original jurisdiction of the Tribunal.
Proceedings in the Tribunal
The applicant's complaint was supported by a report by Mr Richard Machell, registered builder, trading as 'Prescient Consulting'. The application was listed for an initial directions hearing on 4 April 2013 and orders were made to advance the proceeding through to a final hearing on 29 May 2013.
Documents before the Tribunal
The applicant's application annexed the following documents when lodged with the Building Commission of Western Australia which were received by the Tribunal and comprise part of the documentation before the Tribunal.
1)Complaint Schedule; and
2)Reports by Mr Richard Machell, trading as Prescient Consulting, dated 27 February 2013.
On 11 April 2013 the applicant, through his then solicitor, filed a list of witnesses and a workmanship complaint schedule which identified the amounts claimed for each item. A further schedule was filed by the applicant identifying the remaining items in issue and the cost of the remedial work for each of those items.
On 27 May 2013 the respondent filed a document entitled 'Practical Completion Certificate', signed by the parties on 10 January 2013, identifying a list of items together with some photographs supporting the respondent's contention that the work had been remedied.
These documents were included in Exhibit 1, being the Building Disputes Tribunal document booklet, compiled by the Tribunal from the documents filed by the parties.
Witnesses
At the final hearing of the proceeding, the applicant was unrepresented and relied entirely upon the evidence of Mr Machell. The respondent was initially represented by Mr Fred Afrasiabi, a director of the respondent. Mr Mal Afrasiabi, also a director of the respondent, attended as a witness.
Mr Thumolano gave evidence in the proceeding that he relied entirely upon Mr Machell's advice. As to his personal involvement, he said that the respondent was not cooperative, and that when he went to check on certain remedial work, he almost ended up in a physical confrontation with Mr Mal Afrasiabi, and the tenant locked herself in the house because she was so afraid. The tenant was not called as a witness. Mr Mal Afrasiabi gave evidence in the matter which largely focused on the dispute between the respondent and the developer which was not relevant to the applicant's claim against the respondent as the contracting builder.
The complaint items and the Tribunal's determination of the complaint items
Complaint item 1 Lever action door set to bedroom is loose causing latch mechanism to become loose
As to complaint item 1, Mr Machell gave evidence in terms of paragraph 7.3.1 of his report and in support of the allegation that the lever action door set was loose. The respondent did not provide any useful information or evidence on complaint item 1.
The Tribunal attended the site on 26 July 2013 to inspect the complaint items and view the oral and photographic evidence in its context. The applicant and Mr Mal Afrasiabi were in attendance during the inspection. During the inspection the Tribunal observed that there was no evidence that the lever door set to the bedroom (the only bedroom in the home unit) was loose. Whilst it is possible and most likely that the respondent had undertaken remedial work to the door lever set after Mr Machell's report dated 27 February 2013, the fact remains that as at 26 July 2013 the door lever set operated correctly and was not loose and, as such, the Tribunal concludes that additional remedial work is not necessary and declines to make any order. The application to the extent of this complaint item will be dismissed as there is no utility in the application to that extent.
At the site inspection on 26 July 2013, the applicant showed the Tribunal a door handle to the rear sliding door that was loose. That door handle was not the subject of complaint. Further, it is open to the Tribunal to conclude that the sliding door handle had become loose through use by the tenant. It was immediately obvious to the Tribunal that a twist of two screws with a screwdriver would tighten the two screws to the door handle. Such matters are the subject of everyday home occupier maintenance and not the responsibility of the builder.
Complaint item 2 - Carpet to bedroom is missing the pile in a section behind the door
As to complaint item 2, the Tribunal asked the applicant why this item had not been noted on the 'Practical Completion Certificate' produced by the respondent and dated 10 January 2013. The applicant stated that he was anxious for a tenant to move into the home unit and he did not go through the defects in the home unit thoroughly. He did not speak to Mr Mal Afrasiabi about the carpet.
Under crossexamination it was put to the applicant that the carpet had been supplied for all 16 units, that there had been no other complaint about the carpet, and that the applicant had only complained after 1 March 2013, being the date after the tenant had moved into the home unit in February 2013.
The applicant said that he did notice the carpet run at the time of the practical completion. He said that Mr Mal Afrasiabi had told him at the time of the practical completion inspection that he had six months to complain about the defects and he just wanted his tenant to be in. He was anxious to start receiving rental payments.
It was the respondent's case that the carpet was not defective, that the loss of pile was caused by another, and possibly the tenant, but that it was not caused by the respondent.
On this issue, Mr Machell gave evidence that he believed that the carpet was the bias end of the roll of carpet. He was asked by the Tribunal whether the carpet had small holes in it, suggesting that the pile had been removed, and Mr Machell indicated that he believed that it was at the end of the carpet roll that did not have any pile in it and there were no small holes where the pile had been.
The Tribunal attended the site on 26 July 2013 and inspected the carpet. The Tribunal's own inspection revealed that there were small holes in the area of the carpet where the pile had been removed. This was not consistent with a finding that the bias edge of the carpet roll had been used. This observation was consistent with the pile of the carpet having been removed or pulled out. On this issue the Tribunal did not accept Mr Machell's evidence.
The Tribunal also observed that the area around the missing pile had no joint at that point and so it could not be said that the joint was defective. There had clearly been a removal of the pile to the carpet in the two sections running parallel in the carpet, evidenced by the small holes in the carpet.
As the loss of pile in the carpet behind the bedroom door was not recorded on the practical completion defects list, it is open to the Tribunal to find that the carpet pile was not missing as at the date of the practical completion.
The applicant's answer to this is that he was not thorough in the inspection and the loss of pile was not recorded, and he believed he had six months to note the defects. The Tribunal does not accept that explanation. The two rows of missing pile are very obvious even though they are behind the door when it is open. When the door is closed it is glaringly obvious. Mr Machell's report contains photographs that support the contention that the applicant's tenant had moved into the home unit. In the period between the practical completion inspection and the raising of the complaint, the tenant had moved in and it is open to the Tribunal to find that the damage to the pile of the carpet was caused by the tenant. The applicant did not provide the Tribunal with a preoccupation property inspection report to establish that the damaged pile existed prior to the tenant's occupancy.
For these reasons the Tribunal is not persuaded that the missing pile to the carpet occurred at practical completion and that the same was caused by the respondent.
For this reason, the Tribunal declines to make an order, and, as there was no utility in this aspect of the proceeding, the Tribunal dismissed the application insofar as it concerned complaint item 2.
Complaint item 3 - Junction of the floor tiles between the bathroom and the multipurpose room is poorly achieved, with tile joints visible [and] misaligning
As to complaint item 3, Mr Machell referred to paragraph 6.33.1 of his report and stated that the original contract document indicated that carpet should have been fitted in the multipurpose room. Instead, tiles had been laid in that room. He indicated that the colour of the tiles was not a perfect match to the tiles in the adjoining bathroom/laundry and that the joints of the tiles at the junction from the bathroom/laundry to the multipurpose room were not matched. He indicated that the installation of a junction strip would remedy the apparent mismatched colour and misalignment of the tiles that was evident. This would not fix the misalignment of the joints or the mismatched colour, but it would draw the eye's attention away from these facts, and the appearance would be acceptable. The difference in colour arose from the fact that the tiles for the bathroom/laundry were made from a different batch to those for the multipurpose room. The mismatching of batch colours of the same tiles is a common problem.
The respondent's position on this issue was unclear, save to say that the respondent asserted that the developer had instructed the respondent to lay tiles to the multipurpose room rather than lay carpet. The respondent asserted that the laying of tiles is far more beneficial to the applicant, particularly in rental accommodation, as carpet deteriorates quickly by comparison and is more difficult to maintain. At no stage did the applicant suggest that he would forego the benefit of the tiles and would prefer carpet, and implicitly the applicant agreed with the respondent's assertions of benefit in the laying of the tiles. The applicant's complaint related to the manner in which the tiles had been laid, resulting in an unpleasant visual finish.
The Tribunal undertook an inspection on 26 July 2013 and concluded that there was a slight mismatch of colour and misalignment of joints between the tiles in the multifunction room and the tiles in the bathroom/laundry. The Tribunal agreed with Mr Machell's proposal that a junction strip would mark the mismatched and misaligned tiles and would result in a satisfactory appearance. The applicant relied upon Mr Machell's assessment of $45 net for the cost of the remedial work, and the Tribunal shall order that that amount, plus GST, shall be paid by the respondent. The Tribunal is satisfied that the mismatch and the misalignment is the responsibility of the respondent for a number of reasons:
1)the respondent did not take instructions from the applicant to install the tiles, but rather from the developer, in the belief that the developer was the agent for the applicant;
2)having accepted the developer's instruction to lay tiles in the multipurpose room, the respondent should have aligned the joints of the tiles in the multipurpose room to the joints of the tiles in the bathroom/laundry when laying the tiles to the multipurpose room; and
3)further to (2) above, the respondent would have been aware of the likelihood of the mismatch of the colour in the two batches of tiles and could have avoided the detection of the mismatched colour by laying a strip across the junction of the rooms.
Complaint item 4 Nail fixings to the carport ceiling lining are installed at varying centres up to 380mm, exceeding the maximum allowable fixing centres of 300mm
As to complaint item 4, Mr Machell relied on paragraph 7.3.2 of his report. The Tribunal attended site on 26 July 2013 and found that the fixings were installed at adequate centres. The Tribunal could not ascertain that they were installed at varying centres of up to 380 millimetres, exceeding the maximum allowable centres of 300 millimetres, as identified by Mr Machell in his report. It is quite possible that since the date of Mr Machell's report of 27 February 2013 and the attendance of the Tribunal on 26 July 2013, the respondent had undertaken further remedial work. Whatever the cause, the Tribunal is satisfied that the work was satisfactorily undertaken as at 26 July 2013. The Tribunal declines to make an order in respect of this complaint item. The proceeding to the extent of complaint item 4 will be dismissed.
Complaint item 6 Hot water outlet from the gas instantaneous hot water system is not insulated in accordance with the Building Code of Australia at 3.01.5.0, nor is the power cable that connects the HWS to mains power adequately or safely secured
As to complaint item 6, the Tribunal accepts the evidence of Mr Machell given in terms of paragraph 7.3.4 of his report, having itself inspected the hot water system and outlet on 26 July 2013. The Tribunal accepts that the hot water pipe should be lagged and insulated in accordance with the Building Code of Australia and that the power cable to the hot water system was not safely secured. The hot water outlet was not lagged. The electrical cord for the hot water system was too long and hung almost to the ground. The electrical cord was not secured so as to avoid being caught or dragged or so as to prevent it being in contact with the ground or the garden. The power cable required gathering and securing so that it would not hang in a dangerous fashion from the power point and the hot water system. The Tribunal referred to the evidence of Mr Machell and his costing for this work and concluded that $50, plus GST, is a reasonable sum for the remediation of complaint item 6.
Complaint item 7 - Water damage is evident to the paint at wall right side of front awning window, causing the paint to spall (likely as a result of water penetration to the brick perimeter wall and being unable to escape)
As to complaint item 7, the applicant relied on paragraph 7.3.5 of Mr Machell's report, and Mr Machell gave evidence of this matter. However, the Tribunal's attendance on 26 July 2013 could not identify any spalling or any damage to the paint to the front of the house at all. Again, it may be that the respondent had undertaken additional remedial work since the applicant made his compliant and before the Tribunal's site inspection but nonetheless, as at the date of the inspection, the complaint item did not require any remedial work. For this reason the Tribunal declines to make an order in terms of complaint item 7, and shall dismiss the complaint to that extent.
Complaint item 8 - Brick paving at the driveway has not been adequately retained sides of the driveway are spreading on both sides part way along the ramped section
The applicant relies upon the evidence of Mr Machell in paragraph 7.3.6 of his report, and his evidence before the Tribunal. The building next door to the applicant's lot is constructed at a lower level and there is a small retaining wall between the two properties which stops approximately 1.5 metres or so back from the common driveway/road that runs through the centre of the strata development. The applicant's driveway runs at a right angle to the common driveway/road and parallel with the retaining wall between the applicant's lot on his neighbour's lot. The applicant's driveway is partially unretained and the edging of the driveway paving is not sufficiently supported in order to withstand the compression applied to the brick paving when cars drive on the applicant's driveway. The variation in height between the applicant's lot and his neighbour's lot varies from zero where the applicant's driveway meets the common driveway/road and less than 500 millimetres at the commencement of the retaining wall. It is not a significant variation in height but it is sufficient for the weight of traffic to the driveway to cause the concrete edges of the driveway to fail, which failure in the paving edging was apparent to the Tribunal during the site visit on 26 July 2013. The Tribunal finds that the respondent should have retained the applicant's driveway adequately and failed to do so to the extent of 1 to 1.5 metres from the existing limestone retaining wall.
Mr Machell's evidence referred to a sum of $800, plus GST, to extend the retaining wall for 'a couple of blocks' down along the applicant's driveway from the existing retaining wall between the two properties and to relay the pavers so as to provide a secure driveway that would not slip/spread and could support the weight of vehicular traffic. The respondent produced no information as to the cost of extending the retaining wall from its current point to about 1 to 1.5 metres or a 'couple of blocks' toward the common driveway/road.
The Tribunal is aware generally that limestone retaining is expensive because of the labour involved in positioning the blocks, the need for equipment to position the blocks and the cost of uplifting the paving and relaying so that it is tight and retained. In the absence of any evidence to the contrary from the respondent, however, the Tribunal accepts the evidence of Mr Machell, that the sum of $800, plus GST, is a reasonable sum to extend the retaining wall by 'a couple of blocks' which the Tribunal understands to be approximately 1 to 1.5 metres from the existing retaining wall. On the information and evidence before the Tribunal, it is satisfied that the sum of $800, plus GST, to retain the slope to the applicant's driveway is a reasonable cost.
Complaint item 9 Fencing at the rear side of the lot between lot 2 is only 1.2m high, contrary to the drawing requirements of 1.8m
As to complaint item 9, the Tribunal heard the evidence of Mr Machell, and he relied on his report at paragraph 7.3.7. When the Tribunal attended site it observed that the fencing height adjustment was in progress and that new sheets had been delivered to site.
During the hearing, the Tribunal was told that new sheets had been delivered, that they were the wrong colour and the respondent had arranged for them to be returned and was awaiting new sheets. At the time of the inspection, the Tribunal observed that the fence had been reconfigured with a step-down which achieved a 1.8 metre height as required by the applicant. The Tribunal concludes that complaint item 9 is in the process of being rectified and the fence frame is now 1.8 metres high. The Tribunal declines to make an order in this respect and the application is dismissed to this extent.
Complaint item 10 - Tree installed to the front lot is planted immediately next to the water meter and not in position shown on the landscaping plan
The Tribunal is not satisfied that this matter has been proved. The fact that it is not in the position shown on the landscaping plan is, in the Tribunal's view, irrelevant. The plan is an architectural plan, not a building plan. As such, the positioning of the tree is not intended to be accurate.
The Tribunal is not satisfied that the installation of the tree near the water meter is faulty and unsatisfactory or is not proper and proficient. The Tribunal is not inclined to make an order in respect of this complaint item.
Complaint item 11 - Floor in the external store is constructed from brick paving contrary to specifications. Level of the store is slightly lower than required as by drawings and external paving has been laid at the same level as the store floor with minimal fall away from the door
The Tribunal is not satisfied that the drawings show that the storeroom should have any floor at all. The Tribunal is satisfied that the brick paving floor constructed by the respondent is adequate but that the threshold strip, that has been laid to prevent water ingress, does not neatly meet against the brick paving outside the storeroom doors or inside the storeroom doors. The amount that is claimed in respect of this is $840.
The Tribunal does not accept the applicant's evidence that the floor to the storeroom is not laid at the correct level. The Tribunal does not accept that the storeroom floor was to have any particular kind of floor or a poured concrete floor in particular. The plan notes a finished floor level of '0c' meaning zero courses being land level. The Tribunal finds that a floor has been laid and that the floor is adequate and is at zero courses. The Tribunal considers that the width of the threshold strip does not neatly meet the paving on either side of the door. There is no evidence before the Tribunal as to the cost of relaying a new strip and the Tribunal does not have any evidence before it of the reasonable cost to remediate the laying of the strip. The Tribunal therefore considers that there is no evidence before it to establish what is the reasonable cost of replacement of the strip, and in the absence of any persuasive evidence or any evidence at all, the Tribunal declines to make an order and this complaint item shall be dismissed.
Complaint item 5 - Brick paving to the carport has been installed at other than the design levels and is not in accordance with the BCA
Mr Machell relies on paragraph 7.3.3 of his report. The most important point of Mr Machell's reasoning is that the BCA requires a 100 millimetre stepdown from the external openings of the house to the finished level of the paving on the outside. The Tribunal called for the building licence and all documents in support of the building licence from the City of Mandurah. It is quite clear from the approved drawings that it was intended that the home unit was to have wheelchair access at all external openings onto the brick paving. It is also quite clear that a 100 millimetre stepdown is not consistent with wheelchair access.
Mr Mal Afrasiabi gave evidence that the wheelchair access required the stepdown provided for in the BCA to be removed but also required a gradual fall away from the openings to the house which he did undertake when he laid the paving. He gave evidence that the plans called for ramps to the front and back doors and to the carport personal door. He gave evidence that when the ramps were originally laid on another (almost identical) home unit in the strata development they were too steep, and in the carport there was no prospect that a car could be driven into the carport because of the interference from the ramp. He said that during the course of construction he removed the ramps and instead laid the paving at the same height as the openings to the home unit and constructed the paving so that there was a graduated fall away from all external openings into the garden areas; that is, the water would flow along the brick paving away from the house to the garden beds.
The Tribunal attended site on 26 July 2013 and was able to confirm that there was a visible fall away from each external opening of the home unit to a garden bed. This applied to the front door, the personal door from the carport and the door from the kitchen. The Tribunal finds that the brick paving was laid in a proper and proficient manner and is not faulty or unsatisfactory, save as identified in complaint item 8 where the brick paving at the end of the driveway has not been adequately retained. The brick paving complied with the plans which required necessary modifications. The ramps are still in position but they have a much lower gradient than appears on the plans. The lowering of the gradient of the ramps was necessary to construct a home unit that was functional for wheelchair access to and from the home unit. The Tribunal declines to make an order and concludes that complaint item 5 should be dismissed.
Remedial costs
The remedial costs that the Tribunal has concluded are necessary amount to $895, plus GST. Mr Machell's costs are excluding GST of 10%. The cost that the applicant would reasonably expect to expend to have the remedial works completed is $984.50, including GST. Mr Machell has also allowed for a registered builder to program the work and have it completed and allowed for the builder's margin of 25% and the cost of the builder's overheads of 5%. There is no justification for this additional cost. The matters are within the ambit of a skilled tradesman and an assistant, or in some cases, a handyman. The Tribunal concludes that the additional cost of a supervising registered builder is not reasonable and disallows that part of the claim.
Remedial costs order s 36(1)(b) of the BSCRA Act
Where liability is established, the Tribunal may make a remedial costs order. It is not a requirement of s 36(1)(b) of the BSCRA Act that the respondent first be permitted to remediate. In any event, the respondent has had ample time to remediate all of the complaint items. Further, this is the third proceeding between these parties in the Tribunal concerning the construction of the home unit in question. An order for the payment of the cost of the remedial work will bring the proceedings to finality insofar as the BSCRA Act is concerned and, for that reason, the Tribunal shall make an order pursuant to s 36(1)(b) of the BSCRA Act.
Conclusion
For the reasons explained, the Tribunal shall order that the respondent pay to the applicant the sum of $984.50 by 20 December 2013 in respect of complaint items 3, 6 and 8.
Order
1.Pursuant to s 36(1)(b) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), the respondent shall pay to the applicant the sum of $984.50 by 20 December 2013 in respect of complaint items 3, 6 and 8 of the applicant's application.
2.The Tribunal otherwise declines to make an order in respect of complaint items 1, 2, 4, 5, 7, 9, 10 and 11 of the applicant's application, and the application is to that extent dismissed pursuant to s 46(3) of the State Administrative Tribunal Act 2004 (WA).
I certify that this and the preceding [44] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS N OWEN-CONWAY, MEMBER