TRINDER and BRUANNE PTY LTD
[2020] WASAT 129
•21 OCTOBER 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION: TRINDER and BRUANNE PTY LTD [2020] WASAT 129
MEMBER: MS KY LOH, MEMBER
MS S CHURN, SESSIONAL MEMBER
HEARD: 11 AUGUST 2020
DELIVERED : 21 OCTOBER 2020
FILE NO/S: CC 576 of 2020
BETWEEN: MICHAEL TRINDER
Applicant
AND
BRUANNE PTY LTD
Respondent
Catchwords:
Building service complaint - Leak through joins in window frames - Whether cause of leak is workmanship of construction of joins or lack of painting on joins
Legislation:
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5(1), s 11(1)(d), s 36(1), s 38
State Administrative Tribunal Act 2004 (WA), s 32
Result:
Applicant's complaint dismissed
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | In Person |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The owner of a home in Maylands, Mr Michael Trinder, complains that water is leaking through joins in window frames facing his internal courtyard during heavy rains.
The builder, Bruanne Pty Ltd trading as Modern Home Improvers, which had completed the timber joinery work for the internal courtyard area as part of a home extension project for the owner, contends that the reason for the leak is due to the lack of maintenance to the timber through sealing and painting.
The Tribunal accepts the builder's submissions and the expert evidence of Mr John O'Toole of Modern Joinery in dismissing the complaint.
Background
The owner's complaint is made under s 5(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (Building Services Act).
The Building Commissioner referred the complaint to the Tribunal under s 11(1)(d) of the Building Services Act.
Factual background
In 2012, the owner and Mrs Trinder entered into a lump sum building contract with the builder to extend the home with the construction of additions to the home, including a new alfresco and new garage.
The builder's director, Mr Bruce Sertorio, stated that the building specification for the contract provided for all internal and external painting to be undertaken by the owner. The owner does not dispute this statement.
In April 2014, practical completion and handover of the home extension works occurred.
Mr Sertorio stated that the first time that the owner had complained about leaks in the courtyard timber joinery was by email sent on 24 March 2017, which is three years after practical completion.
The owner, on the other hand, has variously referred to the first instance of leaks as 'from the very first year of rains' (the owner's notice of proposed complaint), 'from day one with the first heaving rains' and 'on[-]going from the get go' (emails from the owner to the Building and Energy Directorate dated 28 January and 17 March 2020 respectively).
He later states in email correspondence to the Building and Energy Directorate that the first time they had heavy rains was after approximately two years of completion, and that he recalled calling Mr Sertorio after two years.
The owner also stated that the builder came out three times, the first time at two years after completion, the second at three years after completion and the last time at five years after completion.
On the first two occasions, the owner stated that the builder had sealed the bottom joins of the glass frame. On the last occasion in 2019, the builder engaged Mr O'Toole to investigate.
Mr O'Toole stated in his report of that inspection that he used a garden hose to establish where exactly the water was penetrating the frame, and after two to three minutes had observed water beginning to seep in through two horizontal housing joints below awning windows.
Complaint leak through joins in window frames
Under s 38 of the Building Services Act, the Tribunal may deal with the owner's building service complaint by making a Building Remedy Order (BRO) if satisfied that the regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory.
A BRO is an order which compels a person who carried out the regulated building service to remedy the building service, or pay for remedial costs or compensation: s 36(1) of the Building Services Act.
The Tribunal must therefore be satisfied that there is a regulated building service which is carried out by the builder in this case, and that the regulated building service was not carried out in a proper and proficient manner or is faulty or unsatisfactory.
A threshold question is whether the defect complained of (that is, the leak) is caused by the regulated building service carried out by the builder.
In this case, Mr O'Toole was called to give expert evidence on timber joinery. Mr O'Toole works for Modern Joinery, which is a timber joinery company manufacturing 500 window frames a year. Mr O'Toole has worked for Modern Joinery for eight years.
Mr O'Toole observed water leaking from the joins of the window. In his opinion, the cause of the leak is the hairline cracks and chips formed mostly due to the exposure of raw timber to various weather elements causing expansion and contraction of timber.
In his view, maintenance of such timber frames, especially painting, is required to be kept to a three to five year program, with more exposed areas requiring a shorter timeframe.
The owner did not call an expert to give evidence at the hearing, although a short report was prepared by Positiva Building Pty Ltd (Positiva) on 25 January 2020, which the owner had asked to inspect water ingression from a kitchen and master bedroom location via two separate window suites.
While the rules of evidence do not apply to Tribunal proceedings (s 32 of the State Administrative Tribunal Act 2004 (WA)), the absence of the author of the Positiva report has deprived the Tribunal of the opportunity to ask questions about the opinions expressed in the report, including the basis for the opinions, especially in circumstances where other experts do not agree with the opinions.
For example, the Positiva report observes that there is a lack of runoff in the rebate section on to which the awning window closes. That report opines that the lack of runoff has caused deterioration of the mid rail and joints.
However, Mr O'Toole gave evidence that there is no Western Australian standard or code that requires a sloping sill on exposed edges of awning windows. This is supported by assessments by both the Building and Energy Inspector and the Principal Technical Officer at the Building and Energy Directorate that there is no requirement in either the Building Code of Australia or the applicable Australian standard for a slope to be installed on the window sill.
Mr O'Toole considered that a sloping sill would be appropriate in cyclone prone areas such as in the north-west region of Western Australia, which does not include the Perth metropolitan area. The only time Modern Joinery would construct a sloping sill is if it was specified by an architect, builder or a client.
In any event, in Mr O'Toole's view, the lack of run-off or sloping sill would not have helped in this case as he had observed that water was not coming in from where it would be classed as run-off. Thus, a sloping run off underneath the opening part of the window would not have helped.
Mr O'Toole also observed that the timber beads had got to a stage where it had completely disintegrated, and that whilst there was no visible rot, it was in the early stages of developing rot.
The Tribunal notes that Mr O'Toole's opinion on the cause of the leak appears to be supported by the assessments of the Inspector and Principal Technical Officer of the Building and Energy Directorate, who considered that the paint coating was failing and had allowed the timber beneath to move, around the timber joins, allowing water to enter the building, and that the cause of the timber window frame movement was due to failure of the protective coating rather than the timber frame being constructed in a non-compliant manner.
Ultimately, as there has been no opportunity to test the opinions of the Inspector and Principal Technical Officer, the Tribunal relies primarily on Mr O'Toole's opinions in finding that the cause of the leak is not as a result of any workmanship issues with the construction of the timber joins, but rather as a result of a lack of painting on the joins as part of a maintenance program.
As the builder is not responsible for any painting work, either as part of its contract or as part of ongoing maintenance required following practical completion, the Tribunal is not satisfied that the leak is caused by any regulated building service carried out by the builder.
Conclusion
The Tribunal finds that the cause of the leak is as a result of a lack of painting on the joins in the window frames, for which the builder is neither responsible under the building contract nor after practical completion.
As such, the Tribunal finds that the defect was not caused by any regulated building service carried out by the builder, and that there is no basis for the making of a BRO.
Orders
The Tribunal makes the following order:
1.The applicant's complaint is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS K Y Loh, MEMBER
21 OCTOBER 2020
0
0
2