TOWNLEY and WOW HOMES (WA) PTY LTD
[2014] WASAT 41
•3 APRIL 2014
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)
CITATION: TOWNLEY and WOW HOMES (WA) PTY LTD [2014] WASAT 41
MEMBER: MR S ELLIS (SENIOR SESSIONAL MEMBER)
MR S WALLACE (SESSIONAL MEMBER)
HEARD: 7 JANUARY 2014
DELIVERED : 3 APRIL 2014
FILE NO/S: CC 1301 of 2013
BETWEEN: RAYMOND CHARLES TOWNLEY
Applicant
AND
WOW HOMES (WA) PTY LTD
Respondent
Catchwords:
Building services complaint - Whether work has been carried out in a proper and proficient manner, or is faulty or unsatisfactory - Construction of house
Legislation:
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 38, s 49
Result:
Building remedy order issued
Summary of Tribunal's decision:
These proceedings related to a number of discrete alleged defects in the building service provided by the respondent to the applicant. A number of the items of complaint were either not pursued or had been remedied by the respondent by the time the matter came on for hearing. The Tribunal found that an additional downpipe should be installed to the guttering on the north side of the applicant's property, and that downpipe should be connected to the underground drainage system.
Category: B
Representation:
Counsel:
Applicant: In person
Respondent: Mr G Congdon and Mr G De Sillery (Acting as Agents)
Solicitors:
Applicant: N/A
Respondent: N/A
Case(s) referred to in decision(s):
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
These proceedings are based on a complaint made to the Building Commission by Mr RC Townley (applicant) against Wow Homes (WA) Pty Ltd (respondent) of 5 September 2013. The respondent built the applicant's home. The applicant contends that, in doing so, the respondent contravened s 38 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (Complaints Act).
Issues
At a directions hearing on 28 October 2013, the matters in issue between the parties were identified by reference to a list of defects prepared by the Building Commission on 25 September 2013, found at page 51 of the Hearing Booklet. After correcting some obvious errors, the complaints are:
1.Exhaust vents on house. Water going into the roof flashing. Needs fixing.
2.Door at front entrance. When you open, hard to pull open it and when you close, push on hard. Door swollen. Also front door frame is wood, which is coming apart off the plaster on the side of the house.
3.Roof drainage. When it rains heavy, the gutters fill up and the downpipe overflows with water for volume of water coming off the roof. The building inspector's report says you need to place another downpipe. There is nowhere for the water to go. Overflows.
4.Oven chain from the stove needs to be fixed to stove. The Emilia stove 900m and the 800m range hood exhaust does steam. It is not powerful enough, but the smell into the walk in robe needs to be fixed or new range hood over stove.
5.Drainage from the downpipe fills up entire soak well to over flowing. The report says to join the stormwater pipes for volume of water.
6.Cracks throughout the house. The bedroom 1.5m in middle room, study at the front middle of room as well 1.2m front entry hall from fridge recess to wall the crack 1.4m, dining two cracks about 1m each in the family area. 1.5m, 1m, 1.2m in the entry to the theatre room. 1.5m back hall 1/2m. They need to be fixed.
7.Also need to reimburse for the builders report of the amount of $597 and building commission outlay $102 also for the meat and food in the fridge/freezer and also other freeze throw away.
At the hearing, the parties confirmed that this document identified the items in dispute.
Item 1
At the hearing, the representative of the respondent, Mr Congdon, informed the Tribunal that, in the period between the directions hearing on 28 October 2013 and the hearing on 7 January 2014, representatives of the respondent had attended at the applicant's home and carried out remedial work on the exhaust vents (item 1). The respondent contended that this item had been fixed. The applicant did not dispute that repair work had been done. Accordingly, it is not appropriate for the Tribunal to make an order to remedy this item. The question whether an order for compensation should be made in respect of consequential damage before the repairs were carried out will be considered later as part of item 7.
Item 2
At the hearing on 7 January 2014, the applicant confirmed that the front door (item 2) was no longer in issue because it had been otherwise damaged. No order will be made in respect of this item.
Item 3
As to item 3 on the list of issues, the applicant referred to the report of Resicert (at pages 23 and 24 of the Hearing Booklet). The report suggests that the gutters overflowed regularly and that an additional downpipe to this area would alleviate the problem. The respondent argued that work had been done in the area by the applicant, and that this work affected the performance of the guttering. However, the respondent indicated that it was prepared to carry out further work installing an additional downpipe in the relevant area and connecting the downpipe to the rest of the drainage system. In the circumstances, the Tribunal considers that it is appropriate for a building remedy order to be made to this effect.
Item 4
In relation to item 4, the applicant confirmed at the hearing that this item had been attended to and that the matter was no longer in dispute.
Item 5
In relation to item 5, the essence of the applicant's complaint appears at page 22 of Resicert's report. It was contended that the three soak wells were not interconnected. However, Resicert's conclusion was based on an inspection of the plans. The individual who installed the soak wells, Mr Joyce of Stormwater Installations Pty Ltd, attended an inspection on 17 December 2013. He confirmed by email dated 18 December 2013 that the soak wells were interconnected. In addition, it appears that, on 17 December 2013, Mr Joyce altered the height of two of the soak wells so that all three were at the same level. In the circumstances, it is not appropriate that a building remedy order issue in respect of this item.
Item 6
Item 6 on the list of issues refers to various cracks in the house. The complaint is based on Resicert's report. However, Resicert's report indicates, at page 9, that the amount of cracking was 'normal due to minor movement in the roof structure'. Similarly, cracking in the concrete floor slabs was within acceptable tolerance and did not require action (at page 4 of Resicert's report). The Tribunal is not satisfied that the building service supplied by the respondent was defective within s 38 of the Complaints Act in this respect. No order should be made in respect of this item.
Item 7
Item 7 on the list of issues identified the loss and damage which the applicant alleges he suffered.
The major portion of this item was the applicant's claim for the loss of food stored in the applicant's freezers, and of barramundi kept in a pond outside the house. The applicant said that he was without power because of electrical shorting caused by the leaks associated with defective work on the vents, which is item 1 in the list of defects, and that this caused the food in the freezers to spoil. At the hearing, the applicant put an estimated value of $2,000 to $3,000 on the food in the freezer. The applicant gave evidence that electricity was required to operate a pump required to maintain the living conditions of the fish, so that when the electricity supply was interrupted, the fish died.
The Tribunal is not satisfied that an order for compensation should be made in respect of this item. There was no direct evidence of the value of the lost food. Further, it was not clear that the damage to the food flowed sufficiently directly from the defects in the vents. One would have expected that, faced with the loss of this quantity of food, steps could, and would, have been taken to restore power before food was spoilt or the fish died. The applicant contended that Western Power prevented power being restored to the freezers and the pond. The Tribunal is not satisfied that this was the case.
The other item claimed by the applicant was $591 for the report of Resicert. The Tribunal has power to make orders under s 49 of the Complaints Act in respect of the costs and expenses associated with proceedings under that Act. The Tribunal was not provided with a copy of Resicert's invoice, but the Tribunal accepts the applicant's oral evidence that this sum was incurred. The Tribunal considers that it is appropriate to make an order for payment of only part of this sum because only part of the report related to the defects that were the subject of these proceedings and, in respect of those defects, the applicant has only been partly successful. An allowance of $200 is appropriate. An order under s 49 of the Complaints Act in respect of the filing fee is not appropriate.
Conclusion
The Tribunal makes the following orders:
1.The respondent do within 28 days install a further downpipe to the gutters over the north side of the applicant's house and connect the downpipe to the underground drainage system.
2.The respondent do pay the applicant $200 within 28 days.
I certify that this and the preceding [14] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR S ELLIS, SENIOR SESSIONAL MEMBER
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