| 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 181 MEMBER : MS N OWEN-CONWAY (MEMBER) HEARD : 19 AUGUST 2013 DELIVERED : 12 NOVEMBER 2013 FILE NO/S : CC 125 of 2013 BETWEEN : LESEGO PETER THUMOLANO Applicant
AND
AFRA CONSTRUCTION PTY LTD
Respondent
Catchwords: Whether building remedial work was satisfactory Site inspection Revocation of remedial work order and replacement with cost order Turns on own facts Legislation: Building Code of Australia
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 36(1)(a), s 36(1)(b), s 51
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Result: Remedial work order made on 17 April 2013 was revoked
Remedial cost order made against the respondent
Summary of Tribunal's decision: The parties had consented to an order whereby the respondent was required to undertake remedial work to the building constructed on Lot 16, 15 Ferguson Street, Falcon by 5 May 2013. The respondent alleged that it had substantially complied with the order. The applicant asserted that the respondent had not complied with the order. The applicant sought an order revoking the consent order and an order in its place pursuant to s 36(1)(b) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA). The Tribunal attended site to inspect the complaint items and concluded that, as at the date of the site inspection (26 July 2013), all but three complaint items had been remediated to a satisfactory standard even though the applicant's photographs, as at 28 May 2013, indicated that not all complaint items had been remedied satisfactorily. The Tribunal revoked the order made on 17 April 2013 in respect of three complaint items which, on inspection, the Tribunal concluded had not been the subject of satisfactory remedial work, or any remedial work, and in its place made an order that the respondent pay the applicant $401.50, being the cost of the remedial work ordered on 17 April 2013.
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):
Nil
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REASONS FOR DECISION OF THE TRIBUNAL:
Background 1 On 17 April 2013 the Tribunal made an order pursuant to s 36(1)(a) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act), by the consent of both parties, which compelled the respondent to undertake remedial work at the applicant's property at Lot 16, 15 Ferguson Street, Falcon, as follows: A. By consent of the parties and pursuant to s 36(1)(a) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) the respondent shall rectify and remediate the work that was not carried out in a proper and proficient manner and is faulty and unsatisfactory and in breach of the contract between the parties as identified hereunder at Lot 16, 15 Ferguson Street, Falcon. Complaint item 2 Shed to be painted internally.
Action Required:
Plaster (set coat) and paint internal walls.
Complaint item 6 Paving cut-ins not complete.
Action Required:
Existing pavers need to be notched to accommodate the additional conduit.
Complaint item 8 Gutter bent on portico.
Action Required:
Crease should be removed or the gutter replaced.
Complaint item 9 No capping on gate.
Action Required:
Install capping on gate perimeter.
Complaint item 10 Portico/Carport downpipe grate not aligned.
Action Required:
Realign downpipe so that storm water may fully discharge on to the grate.
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D. The applicant through the applicant's managing or other agent shall identify a selection of dates for the respondent to undertake the remedial work ordered in A and B above. E. The time for compliance with orders A and B above is 5 May 2013; or such other time that the Tribunal may order. F. Orders A and B are subject to the applicant (through the applicant's managing or other agent) providing the respondent with three working days written notice of dates on which the applicant's tenant and the applicant shall provide the respondent with access to Lot 16, 15 Ferguson Street, Falcon so as to allow the respondent to complete the remedial work ordered in A and B in the time permitted by order E above. G. The parties have the opportunity to apply in respect of Orders E and F above on 48 hours written notice the other party and the Tribunal. 2 The respondent was compelled to complete the work by 5 May 2013 or such other time as the Tribunal ordered. The time for compliance was not extended by an order of the Tribunal. The respondent was also compelled to perform the remedial work over a period of three working days by prior arrangement with the applicant's managing agent to limit the disruptions to the applicant's tenant. The order was made by the consent of the parties on the morning of the final hearing of the applicant's application.
The application 3 On 31 May 2013 the applicant wrote to the Tribunal to inform the Tribunal that the respondent had not undertaken the remedial work required to comply with the order made on 17 April 2013. In his letter he stated: I request compensation for the defect and the further damage the cost while trying to repair the defects & the cost of the inspector and the lawyer who were helping me with building term … [sic]. 4 Accompanying the applicant's letter is a copy of the Tribunal's order dated 17 April 2013, with handwritten annotations next to each item, the subject of the remedial works order made on that day. The applicant asserted that complaint items 8, 10, 17, 24, 27, 33, 34 and 38 were 'not done'. He asserted that complaint items 6 and 21 were 'poorly' done and needed to be attended to again but 'properly'. As to complaint item 2 (shed to be painted internally), he noted: (Page 6)
Not done (Painted poorly) No plastering. 5 In relation to complaint item 9 (no capping on gate), the applicant noted 'done damaged the gate' which the Tribunal infers to mean that the respondent did comply with the order but, in the process, caused damage to the gate. 6 On 2 May 2013, and before the applicant had written to the Tribunal requesting an order pursuant to s 51 and 36(1)(b) of the BSCRA Act, the respondent filed a copy of the Tribunal's orders made on 17 April 2013 which contained handwritten annotations of the remedial work undertaken by the respondent in the respondent's view. In respect of complaint items 8, 9, 10, 24, 27, 33, 37, 38 and 21, the respondent has noted variously, 'completed', 'has been done', 'supplied & installed' and 'all repaired and painted'. In respect of complaint item 2, the respondent noted that the storeroom 'needs to be emptied' and 'will be done on 'Thursday'. 7 The applicant sought an order revoking the consent order made on 17 April 2013, and for that order to be replaced with an order pursuant to s 36(1)(b) of the BSCRA Act, being an order that the respondent pay to the applicant the cost of the remedial work. The application was made upon the basis of s 51 of the BSCRA Act.
Proceedings in the Tribunal 8 On 20 June 2013, the Tribunal made orders directing the parties to file and serve material in readiness for the final hearing for the revocation of the order made on 17 April 2013 and for the making of an order pursuant to s 36(1)(b) of the BSCRA Act, all pursuant to the power vested in the Tribunal pursuant to s 51 of the BSCRA Act. It also made an order that the Tribunal would attend site on 26 July 2013 to inspect the complaint items. 9 The applicant filed in the Tribunal 20 photographs dated 28 May 2013 of the various items which he contends were not remedied pursuant to the order made on 17 April 2013. 10 As to the cost of the remedial work required, the applicant relied on the evidence of the applicant's expert, Mr Richard Machell, a builder and estimator, at page 221 of the Building Disputes Tribunal booklet prepared by the Tribunal for the final hearing that had been listed for 17 April 2013 and which would have taken place but for the consent order made by the Tribunal on 17 April 2013. (Page 7)
Site inspection 11 The Tribunal attended the property on 26 July 2013 and inspected the items that the applicant indicated had not been remedied as ordered on 17 April 2013. 12 The application was listed for final hearing on 19 August 2013. 13 Upon inspection, the Tribunal found that the only complaint items that required additional remedial work were: | Complaint item 9 | Capping to gate | | Complaint item 24 | Glue on track | | Complaint item 27 | Screw caps on mirror | The amount claimed by the applicant for these three items are as follows: | Complaint item 9 | $300 plus GST | | Complaint item 24 | $30 plus GST | | Complaint item 27 | $35 plus GST | | Total: | $365 plus GST | | Total including GST: | $401.50 |
Final hearing 14 Neither party attended the final hearing on 19 August 2013, and the only evidence before the Tribunal was: (Page 8)
15 In addition, the Tribunal had attended site and was able to inspect the items, compare the photographs and view the evidence (the photographs) in their context to make an assessment whether the photographs clearly depicted that the remedial work was yet to be undertaken or was further required. 16 Orders were made on 19 August 2013, that the order made on 17 April 2013 to the extent of complaint items 9, 24 and 27, be revoked pursuant to s 51 of the BSCRA Act and, again, pursuant to that section, that the applicant be paid by the respondent $401.50 by 3 September 2013. 17 On inspection, the Tribunal found that no remedial work was required in respect of complaint items 6, 8, 10, 17, 33, 37, 38 or 21. 18 Those items appeared to the Tribunal to have been satisfactorily undertaken and, to the extent that there was a difference between what the Tribunal saw onsite on 26 July 2013 and what was depicted in the photographs on 28 May 2013, it was probably the result of additional remedial work. Neither party attended at the hearing to explain any difference between what was depicted in the applicant's photographs taken on 28 May 2013 and what the Tribunal observed on 26 July 2013. The Tribunal concluded that in respect of the items mentioned above, they appeared faultless, satisfactory and properly and proficiently undertaken and not in need of any further remedial work. 19 As to complaint item 2, the Tribunal inspected the external store shed and saw that it was full of the applicant's tenant's belongings to about 1.5 metres high. However, it was apparent that the inside of the store shed had been sand rendered and painted. It had not been plastered with a white set-coat as had been ordered in the consent orders made on 17 April 2013. Upon examination of the construction plans for the applicant's property, it was apparent to the Tribunal that the inside of the store shed was to have been finished in 'face brick work'. The store shed had been constructed with bricks that had no 'fair' face and so face brick work would have been unsightly (a fast wall brick has no fair face and is not an aesthetically pleasing finish because it is intended to be rendered and painted). Instead, the respondent had applied a sand render finish consistent with the finish of the external walls of the whole of the (Page 9)
applicant's property, and painted the sand render a neutral colour to match the applicant's unit. 20 Upon inspection, the Tribunal observed that the store shed had been constructed of single leaf brickwork with no cavity walls for the escape of water. The plans had not allowed for a double leaf cavity wall for the store shed. 21 The Tribunal concluded that the finish to the inside of the store shed was better than had been provided for in the contract (face brick finish of fast wall bricks), or at least as good as a fair faced brick finish (on the assumption that 'face brick work' equated to a fair face finish). Further, a set-coat (white plaster) to an external single leaf wall (no cavity) would, in all probability, have resulted in the setcoat delaminating from the float coat (the grey render). 22 Further, the store shed is a class 10 building and is not intended or required by the Building Code of Australia to be finished to the same standard as a liveable area of a home. Notwithstanding the terms of the contract requiring a face brickwork finish, the Tribunal considers that the quality of the painted sand render finish is at least as good as (if not better than) what was called for in the contract. It was clear that the applicant did not wish to have a face brick work fast wall finish. 23 For the reasons referred to above, the Tribunal declined to revoke the order made on 17 April 2013 insofar as it concerned complaint item 2. 24 As to complaint item 34, the Tribunal inspected the joints to the granite kitchen bench. Whilst there were very minor differences in the levels of the granite at certain joins, the differences were not obvious, significant or deleterious. The joins did not appear 'messy' or 'rough', as alleged, and appeared to be close fitting, which is what was called for by the order made on 17 April 2013. For this reason the Tribunal concluded that there was no further remedial work required in respect of this complaint item, and to the extent that there had been any remedial work, it had remedied the original defect. 25 As to complaint item 9 concerning the gate, the remedial work, as viewed by the Tribunal on 26 July 2013, appeared to be better than as depicted in the photographs taken on 28 May 2013. This may be owing to the fact that the respondent had returned to site and undertaken further remedial work after the photographs were taken. However, there were scratches to the painted metal, rough-cut edges and poor cutting and fitting of the capping that was evident on 26 July 2013. In the Tribunal's view, the remedial work was poorly undertaken and had resulted in surface damage to various painted metallic components of the gate. The (Page 10)
Tribunal considered the work required remediation, being the replacement and refitting of the capping, along with incidental paint filling or repainting to scratches to the metal fence posts. 26 The Tribunal considered that the cost identified by the applicant's agent for the remedial work is an apposite cost, as it is most likely that the materials used in the remedial work will require replacement with new, better cut, and undamaged materials.
Conclusion 27 For the reasons referred to above, the following order was made on 19 August 2013: 1. Pursuant to s 51 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA): (a) the order made on 17 April 2013 to do work is revoked to the following extent: Complaint Item 9
No capping on gate.
Action Required:
Install capping on gate to perimeter. Complaint Item 24 (Bedroom)
Glue on tracks of robe.
Action Required:
Removal of glue with suitable solvent. Complaint Item 27 (Bathroom)
Screw caps installed to mirror.
Action Required:
Install covers to screw heads. (b) by 3 September 2013 the respondent must pay the applicant by way of remedial costs $401.50 including GST. 2. Otherwise the complaint is dismissed. I certify that this and the preceding [27] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________ MS N OWEN-CONWAY, MEMBER (Page 11)
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