VOZZA and HA-DECGROUP PTY. LTD - [2025] WASAT 83

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   VOZZA and HA-DECGROUP PTY. LTD [2025] WASAT 83
MEMBER:   MR E CADE, MEMBER
MR M BENTER, MEMBER
MR J D ORR, SESSIONAL MEMBER

HEARD:   24, 25, 26 AND 27 FEBRUARY 2025
DELIVERED          :   18 AUGUST 2025
FILE NO/S:   CC 1378 of 2023
BETWEEN:   COSIMO VOZZA
First Applicant
JESSICA BOMMARITO
Second Applicant
AND
HA-DECGROUP PTY. LTD
First Respondent
ASTERM PTY LTD
Second Respondent
DANNE ADAM FORTE
Third Respondent
BUILDING RENEWALS PTY LTD
Fourth Respondent

Catchwords:

Building service complaint - HBWC complaints - Identity of builder or builders - One project management agreement and two home building contracts - Undisclosed principal - Misleading and deceptive conduct - Joint and several liability of principal and undisclosed principal

Legislation:

Building Act 2011 (WA), s 9
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 36(1)(a), s 36(1)(b), s 38, s 41(2)(d)(i), s 43(1), s 43(1)(a), s 41(2)(d)(i), s 43(1)
Home Building Contracts Act 1991 (WA), s 3, s 4(3), s 7(1), s 7(1)(b), s 8(4), s 12, s 13(2), s 13(4)(c), s 15A, s 25C(2), Div 2, Sch 1, cl 4, cl 5
Home Building Contracts Regulations 1992 (WA)
State Administrative Tribunal Act 2004 (WA), s 32(2)

Result:

Successful in part

Category: B

Representation:

Counsel:

First Applicant	:	In Person
Second Applicant	:	In Person
First Respondent	:	In Person
Second Respondent	:	In Person
Third Respondent	:	In Person
Fourth Respondent	:	In Person

Solicitors:

First Applicant	:	N/A
Second Applicant	:	N/A
First Respondent	:	N/A
Second Respondent	:	N/A
Third Respondent	:	N/A
Fourth Respondent	:	N/A

Case(s) referred to in decision(s):

Brooks and Gransden Building Company Pty Ltd [No 2] (Brooks) [2021] WASAT 86
Deshmukh and Distinctive Building Services Pty Ltd [2024] WASAT 15
Gemmill Homes Pty Ltd v Sanders [2018] WASC 179
Highfield Property Investments Pty Ltd v Commercial & Residential Developments (SA) Pty Ltd [No 2] [2012] SASC 191
Hippydayze Pty Ltd and Mener Group Pty Ltd [2019] WASAT 92
Owners of Island Apartments Strata Plan 52597 and Pindan Pty Ltd [2018] WASAT 2
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

In 2020 Cosimo Vozza and Jessica Bommarito (together the owners) wished to buy a vacant lot on which to build their family home. In about July of 2020, while they were considering purchasing a vacant lot in Pearsall, Mr Vozza's then employer introduced him to Danne Forte (Mr Forte), the third respondent, as a person who could help to construct a home.
With Mr Forte's assistance the owners eventually purchased a vacant lot in Pearsall and then, also with Mr Forte's assistance, work commenced on their home. Their home was completed on or about 3 March 2023, with a 'Western Australia Practical Completion Certificate' being given to the owners by the first respondent (HaDecGroup Pty Ltd or HDG).
However, the owners claim they were charged more to build their home than was permitted under their contract with HDG. They also claim some of the internal and external finishes are defective in various respects.
On about 4 October 2023, the owners lodged with the Building Commissioner a complaint against HDG, Asterm Pty Ltd and Mr Forte complaining of 10 alleged breaches of contract and 13 alleged defects with respect to various aspects of the internal and external finishes of the building work.
On 15 November 2023, the Building Commissioner's authorised representative determined that, 'due to the complex nature of the dispute and the allegations by the owners of false and misleading conduct in the formation of the contract',[1] the complaint be referred to the Tribunal.
[1] Exhibit 1, being the hearing book prepared by the Tribunal for the final hearing, at pages 35 - 36.

The respondents and the orders sought against them by the owners

The first respondent is the company HaDecGroup Pty Ltd, of which Mr Hany Ayad (Mr Ayad) is a director[2] and the only person who appeared in the proceedings as representative for the company. The application lodged at the commencement of this proceeding named the relevant entity as 'Ha‑Dec Group' and that name has continued to be used throughout the proceeding. However, the investigation report by the Building Commissioner's delegate dated 15 November 2023[3] refers to the entity as 'Ha-Dec Group Pty Ltd', being the name also used by Mr Ayad in the heading of his witness statement dated 7 October 2024.[4] The first building contract signed by the owners and the first respondent includes references to both 'Ha-Dec Group' and 'Ha-Dec Group Pty Ltd', while also including the ACN 136 667 564 and the ABN 20 136 667 564. In turn, the publicly available information on both the website of the Australian Securities & Investments Commission and the Federal Government's Australian Business Register record those two identifying numbers as being for the entity 'Ha-DecGroup Pty Ltd'. The orders to be made by the Tribunal arising from these reasons will amend the name of the first respondent to the correct legal name.
[2] Exhibit 1, page 36.
[3] Exhibit 1, pages 35 - 36.
[4] Exhibit 1, page 3425.
The second respondent, Asterm Pty Ltd (Asterm), is an entity associated with Mr Forte, the third respondent. However, that entity does not appear from the evidence before the Tribunal to have been directly involved in any of the contractual arrangements or building work the subject of the proceeding. On that basis, and in light of Mr Forte's position that he is the single person responsible in respect of the second, third and fourth respondents, Asterm is not addressed further in these reasons.
The third respondent is Mr Forte in his personal capacity.

The fourth respondent is the company Building Renewals Pty Ltd (Building Renewals), another entity associated with Mr Forte. Building Renewals was added to the proceedings as the fourth respondent by order of the Tribunal made on 26 July 2024.
In addition to the named respondents, the proceedings also feature another business associated with Mr Forte, namely Resiservices (Resiservices), with the ABN 51 950 559 900. The publicly available information on the Federal Government's Australian Business Register, at the time of publishing these reasons, records this identifying number as being for the entity 'The Trustee for Euro Pacific Holdings Trust', but records that the ABN status is cancelled from 6 May 2025. The historical details on the Register also record that this ABN was previously associated with the business name 'Resiservices' from 2 May 2017 to 13 May 2021. As set out below, while various documents refer to Resiservices, the publicly available records indicate that it is a business name and not a company. In any event, this business is not a named respondent, and no specific relief is sought against it by the owners.
The owners in these proceedings seek, as against one or more of the named respondents as may be determined by the Tribunal:
(a)a monetary order in the sum of $74,348.35 to compensate them for the payments they made for the building of their home over and above those permitted under what they say is the valid and effective home building works contract; and
(b)a monetary order in the sum of $24,025.71 for what they say is the cost of rectifying the alleged defective aspects of the home.
Mr Forte (on behalf of the second, third and fourth respondents) denies liability on the basis that he was nothing more than the owners' agent under an 'Agreement for Project Management Services' (which is usually described in the parties' documents as a project management agreement or PMA).
HDG denies liability on the basis that it was contractually liable to the owners only to the extent of building their home to the lock-up stage and thereafter, HDG contends, the owners are themselves responsible as owner-builders for any costs of building the home beyond lock‑up and for any alleged defective internal and external finishes to the home.
For completeness, the Tribunal notes that, Mr Forte and HDG also contended during the proceedings that the owners owe each of them money on the basis that, respectively:
(a)Mr Forte contends he is owed money under the PMA entered into by the owners and 'Danne Forte of Resiservices ABN 51 950 559 900' dated 26 September 2020; and
(b)HDG contends it is owed money in respect of its builder's margin for work on the home performed by Mr Forte which was outside of the scope of works under a lump sum home building contract entered into by the owners and HDG for a contract price of $295,000.
However, none of the respondents have any application before the Tribunal that would enable the Tribunal to make any monetary or other orders in their favour.

The complaint items before the Tribunal

The full detail of the complaint items before the Tribunal are set out in the list of complaint items lodged with the Building Commissioner,[5] a copy of which accompanied the original application lodged in this proceeding.
[5] Exhibit 1, pages 29 - 34.
The first ten complaint items comprise 'HBWC complaints', as that term is defined in the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (the BSCRA Act), to the following effect:
(a)Complaint item 1: misleading and deceptive conduct as to the identity of the builder;
(b)Complaint item 2: misleading and deceptive conduct as to the building contract for the owners' home being a 'structure only contract';
(c)Complaint item 3: failure to comply with s 4(3) of the Home Building Contracts Act 1991 (WA) (the HBC Act) by reason of the failure to provide the owners with a copy of the 'Notice for the Home Owners' prescribed by the Home Building Contracts Regulations 1992 (WA);
(d)Complaint item 4: actual construction cost for the owners' home, in the total sum of $403,595.14 (later amended by the owners to $399,630.06), exceeded the fixed price building contract sum of $295,000, with the owners also having family members complete parts of the works that were within the builder's scope under the relevant building contract;
(e)Complaint item 5: validity of an unnumbered building contract variation dated 24 November 2020 for $47,960, which includes items already allowed for in the builder's scope under the fixed price building contract;
(f)Complaint item 6: validity of variation number 1, for commencement of works beyond 45 days from the building contract, which the owners consider is not a true variation;
(g)Complaint item 7: validity of variation number 2, for extra cost over provisional sum for earthworks and retaining walls, which the owners consider is not a true variation;
(h)Complaint item 8: validity of variation number 3, for extra costs associated with increases in bricks, cartage and bricklayer rates, which the owners consider is not a true variation;
(i)Complaint item 9: validity of variation number 4, for extra costs associated with increases in timber prices, roof carpenters, roof cover and structural steel, which the owners consider is not a true variation; and
(j)Complaint item 10: validity of variation number 5, for upgrade to bathroom fixtures, tiling, kitchen and electrical fixtures which the owners, at the time of making their complaint, considered is not a true variation but which they now accept is a substantially true variation.

Complaint item 11 comprises a number of 'building service complaint' items, as that term is defined in the BSCRA Act, for what are said to be faulty or unsatisfactory works on the owners' home. During the course of the final hearing, three of the individual building service complaint items were withdrawn by the owners, such that the following works, utilising the numbering set out in the original complaint, are those which they maintain are sub-standard and unremedied, and in respect of which they seek a monetary order for the costs to remedy:
(i)Cracks in perimeter;
(ii)Missing robe shelving in bedrooms;
(iii)Missing mirrors in bathrooms;
(iv)Missing sliding doors in bed 2 and 3;
(v)Unfinished door in master bedroom;
(vi)Missing bathroom accessories;
(vii)Missing duct to kitchen rangehood;
(viii)(Withdrawn);
(ix)Airconditioning not commissioned or connected to electricity;
(x)(Withdrawn);
(xi)Failure to install meter box;
(xii)(Withdrawn); and
(xiii)Failure to render garage ceiling.

Evidence at the final hearing

The final hearing of the proceedings in the Tribunal took place on 24 to 27 February 2025 (inclusive).
The following witnesses gave evidence at the hearing:
(a)Mr Cosimo Vozza (the first applicant);
(b)Mr Hany Ayad; and
(c)Mr Danne Forte.
For the purposes of the final hearing, the Tribunal prepared a hearing book comprising the application form and attachments lodged with the Tribunal by the Building Commissioner at the commencement of the proceedings, relevant orders made by the Tribunal and the documents lodged in the proceedings by the parties pursuant to the Tribunal's orders. The hearing book was marked as Exhibit 1 during the final hearing and is referred to in these reasons as Exhibit 1.
The only other marked exhibit was Exhibit 2, being the document lodged with the Tribunal as Folio 99 by HDG, which HDG was permitted to tender pursuant to the orders made by the Tribunal on 18 March 2025.

Matters to be determined

The first issue the Tribunal needs to determine in the proceeding is the nature of the contractual arrangements between the parties for the building of the owners' home. This is a complex task because there are at least seven documents which contain contractual terms relating, in a broad sense, to the work of building the owners' home.
In order to determine the contractual arrangements between the parties we will decide the following questions:
(1)What are the primary contractual documents?
(2)What is the status of each of these documents?
In respect of the HBWC complaint items, being complaint items 1 to 10, the Tribunal will address the following questions:
(1)Is there a home building work contract, or contracts, between the owners and one or more of the respondents?
(2)Has there been a breach of the home building work contract by one or more of the respondents?
(3)If there has been a breach, what orders should the Tribunal make in respect of the HBWC complaint items?
In respect of the HBWC complaint items, the Tribunal will also consider whether Mr Forte engaged in misleading and deceptive conduct contrary to s 15A of the HBC Act.
In respect of the building service complaint items, being complaint items 11(i) to 11(xiii), the Tribunal will address the following questions:
(1)Did one or more of the respondents carry out a regulated building service?
(2)If so, was the building work the subject of each of the complaint items faulty or unsatisfactory or otherwise not proper and proficient?
(3)For each complaint item where the answer to questions (1) and (2) are in the affirmative, what is the appropriate form of building remedy order to be made.

The parties' respective submissions

The position of the owners, Mr Vozza and Ms Bommarito, following the close of the final hearing is, in summary:[6]
(a)the owners entered into the PMA with Mr Forte in late September 2020;
(b)the owners entered into a lump sum building contract with HDG on 25 December 2020;
(c)the owners signed a Shell Construction Only lump sum building contract with HDG on 15 March 2021, but solely on the basis that Mr Forte had represented to them that this was required for the purposes of obtaining a building permit for their home;
(d)the 25 December 2020 is the prevailing building contract and is in fact the contract under which the home was built. The builder of this home was both HDG and Mr Forte;
(e)this home was built in accordance with the construction plans referred to in the 25 December 2020 contract so, if the home cost more than $295,000 to build, the additional cost is for the builder to bear and not the owners;
(f)certain aspects of the building works were not carried out in a proper and proficient manner or were faulty and unsatisfactory; and
(g)the owners seek orders against the respondents either individually or collectively, as may be determined by the Tribunal, that they pay to the owners the sum of $74,348.35 for breach of contract and $24,025.71 for defective and incomplete works.
[6] Applicants Outline of Opening Submissions dated 3 February 2025 read with their submissions dated 16 April 2025.
The position of the first respondent, HDG, following the close of the final hearing is, in summary:[7]
(a)HDG is the victim of a 'scam' concocted by the owners with the third respondent, Mr Forte;
(b)the prevailing contract is the 'Structure Only' contract between the owners and HDG; and
(c)HDG seeks an order from the Tribunal that the proceeding is dismissed as against it.
[7] First Respondent's Closing Submissions dated 17 February 2025.
The position of the second, third and fourth respondents following the close of the final hearing is, in summary:[8]
[8] Second, Third and Fourth Respondents' Submissions dated 12 January 2025 read with their submissions dated 16 February 2025 and 16 April 2025.
(a)the owners home did cost more than $295,000 to build in part because the owners requested works and items which were not part of the $295,000 lump sum contract such as an under croft, retaining walls, suspended slab, cathedral roof, raked ceiling and higher walls;
(b)the PMA is a 'non-regulated' agreement under the HBC Act and as such is not within the jurisdiction of the Tribunal. In any event, the PMA saved the owners $302,007.30 on the cost of building their home;
(c)through directly paying contractors and suppliers the second, third and fourth respondents were not acting as builders of the home but were providing 'bridging finance' to the owners;
(d)Mr Forte did not 'borrow' HDG's builder's licence as he is himself a licenced builder;
(e)during the construction of the home the owners conducted themselves in accordance with the PMA by providing funds when needed, by reviewing and verifying the Cost Estimate sheets that were sent to them by Mr Forte, by making changes to the design and by themselves purchasing materials and appointing their own contractors;
(f)the home was not built under a fixed price contract. The only purpose of the $295,000 lump sum contract was to permit the owners to obtain finance and government grants;
(g)the true basis on which the home was built was 'at cost' plus a fixed fee under the PMA;
(h)despite Mr Forte's unwavering evidence during the final hearing that the Structure Only contract was entered into between the owners and HDG in December 2020, the second, third and fourth respondents accept in their closing submissions that the Structure Only contract was signed by the owners around the middle of March 2021;
(i)'It is quite normal on projects with unknown final values as this case being executed under a project management agreement, that the owners inform both the local council and the BCITF of the final value of the build and pay the difference of the fees'; and
(j)the second, third and fourth respondents seek an order from the Tribunal that the proceeding is dismissed as against them.

Evidence - admissibility and relevance

Where there are various written contracts between the parties, the rules of evidence may exclude evidence tendered for the purpose of altering the terms of that contract. However, an exception to the usual rule is that such evidence is permitted in order to determine, as in this case, if an undisclosed principal is a party to a contract.
In any event, s 32(2) of the State Administrative Tribunal Act 2004 (WA) provides that the Tribunal is not bound by the rules of evidence. Consequently, the Tribunal will consider all evidence adduced by the parties and determine the weight that ought to be attributed to that evidence.

Uncontentious facts

The following matters were uncontentious between the parties and the Tribunal accordingly makes the following findings of fact:
(a)Mr Vozza and Ms Bommarito were at all relevant times the proprietors of the relevant land in Pearsall, upon which was constructed the home the subject of the proceeding;
(b)At all relevant times Mr Forte was a registered builder;
(c)At all relevant times Mr Ayad was a director of HDG and represented HDG in all its dealings with Mr Forte and the owners;
(d)At all relevant times HDG was a registered builder;
(e)On 21 December 2020, the City of Wanneroo issued Development Approval for the construction of a single house with an under croft garage on the owners' lot in Pearsall;
(f)On 24 March 2021, QBE issued a Home Indemnity Certificate of Insurance for building works on the owners' lot for the declared contract price of $118,000. In the certificate, the builder was named as HDG and the cost of the insurance was $1,388.05;[9]
(g)On 6 April 2021, the City of Wanneroo issued a building permit to HDG for a single dwelling with a value of $118,000;[10]
(h)The building works commenced in or about May 2021;
(i)The structure only component of the work was completed by about May 2022; and
(j)On about 3 March 2023, HDG gave the owners a 'Western Australia Practical Completion Certificate' with the reference 'HDG-2411-Grenache'.
[9] Exhibit 1, pages 390 - 391.
[10] Exhibit 1, pages 404 - 405.
Save for these threshold facts, the other critical matters in issue in the proceedings are disputed by the parties. In particular, the disputed matters include:
(a)What contractual documents are said to apply to the building of the owners' home; and
(b)The reasons why the home indemnity insurance and building permit referred to above were in respect of a building valued at only $118,000 in circumstances where the true cost of building the owners' home was always to be some multiples of that amount.

What are the primary contractual documents relating to the work of building the home?

There are at least seven documents which contain contractual terms relating, in a broad sense, to the building of the owners' home, and the parties being in dispute as to:
(a)the status and/or timing of the contractual documents coming into existence; and
(b)the contractual terms to which they are bound.
For the purposes of determining the matters in issue, the contractual documents to be considered are:
(a)the PMA between the owners and 'Danne Forte of Resiservices ABN 51 950 559 900' dated 26 September 2020;
(b)a lump sum home building contract between the owners and HDG, with the contract number 'HDG-2411-Grenache' (the $295,000 lump sum contract), for the construction of a 'single-storey house with under croft garage' on the owners' lot, for the contract price of $295,000 (and in respect of which the date of entry into the contract is a matter of dispute between the parties);
(c)a lump sum home building contract between the owners and HDG, with the contract number 'HDG-0601-Grenache' (the $118,000 lump sum contract), for the construction of a 'single-storey house with under croft garage (Structure only)', for the contract price of $118,000 (and in respect of which the date of entry into the contract is a matter of dispute between the parties);
(d)a letter dated 14 November 2020 purportedly signed by Mr Vozza and directed to Mr Ayad of HDG appointing 'Danne Forte, our project manager, as superintendent and agent for the build';
(e)a letter from HDG dated 6 December 2020, with handwritten notation by Mr Forte dated 7 December 2020, which purports to be an agreement between Mr Forte and HDG that the $295,000 lump sum contract is terminated and is to be replaced by a structure only contract for the completion of the slab, shell and roof cover of the owners' home;
(f)a 'Letter of Understanding Going Forward' dated 12 December 2020 from Mr Forte to Mr Ayad in relation to the manner in which works on the owners' home will be undertaken;
(g)an amendment and six variations in respect of contract 'HDG2411-Grenache', being the $295,000 lump sum contract.
In order to determine the status of these documents, it is necessary to acknowledge at the outset that:
(a)the evidence of the owners on one hand, and the respondents on the other, at the final hearing was entirely irreconcilable in relation to when the $295,000 lump sum contract and the $118,000 lump sum contract were signed; and
(b)in respect of a number of the above documents between Mr Forte and HDG, the evidence of the owners, as addressed below, is that, until the documents were lodged by one or more of the respondents in the course of the Tribunal proceedings, the owners were unaware of the existence of those documents.

PMA dated 26 September 2020

The PMA can be succinctly described as a contract between the owners and 'Danne Forte of Resiservices ABN 51 950 559 900 (PM)' under which, in return for a fixed fee of $30,000 to be paid in instalments, the PM is to assist the owners as owner-builders while they build their home on their lot in Pearsall.
The relevant parts of the PMA are:
(a)The Recitals, which state:
A.The Project Manager (PM) is engaged in the business of building and project management.
B.The Owners wishes to construct the Project and has appointed the PM to provide the Services relating to the Project.
C.The Parties wish to formally record the conditions of this agreement and the terms upon which the PM will provide the Services to the Owners.
(b)Clause 5.2, which requires the PM to 'vet, negotiate with, supervise and approve the payments to contractors in general', with any reductions in costs for the supply of materials or work to be 'passed in full' to the owners by Mr Forte.
(c)Clause 5.3, which requires the owners to 'be responsible for the engagement of and payment of all contractors or suppliers to complete the Services as agreed'.
(d)Clause 6.2, which permits the PM to be reimbursed for its 'out of pocket expenses but only in cases of emergency and on items already approved in the budget'.
The owners contend that for the two years following their entry into the PMA they believed that, under the PMA, Mr Forte was the builder of their home.
In large part, the owners' mistaken belief that Mr Forte was to be their builder is due to the cavalier way they entered into the PMA, which was to sign the document without reading it in full. As Mr Vozza wrote in an email he sent to Mr Forte on 30 July 2020, 'I've briefly read the contract, not in depth as I'm trusting Chris [his former employer] and you on this'.
However, while the owners may not have fully read the PMA before signing it, it is clear that in general terms they understood the PMA imposed an obligation on Mr Forte to assist in the building of the owners' home and that it in turn obliged the owners to pay $30,000 to Mr Forte.[11]
[11] E.g. email from Mr Vozza dated 24 September 2020 to Mr Forte asking Mr Forte to provide his bank details so Mr Vozza can make the initial payment under the PMA: Exhibit 1, page 124.
That is, even though the owners may not have understood each and every term of the PMA we are satisfied they did understand they were signing a document known to them to contain contractual terms and to effect legal relations. Consequently, unless the owners can demonstrate they were induced to enter into the PMA through any vitiating factor such as duress, fraud or misrepresentation, we are required to find the owners are bound by it: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ at [54].[12] However, on reviewing the emails that passed between the owners and Mr Forte prior to the owners entering into the PMA we can locate no duress, fraud or misrepresentation. On entering into the PMA, the owners were therefore bound by the terms of the PMA.
[12] '[54] … At the same time, where a person has signed a document, which is intended to affect legal relations, and there is no question of misrepresentation, duress, mistake, or any other vitiating element, the fact that the person has signed the document without reading it does not put the other party in the position of having to show that due notice was given of its terms …'.
One issue that concerned the Tribunal during the final hearing was whether the contracting party or the PM was Mr Forte personally or whether it was a business associated with him, Resiservices. This is because the description in the PMA, that the contracting party is 'Danne Forte of Resiservices ABN 51 950 559 900', is not clear.
Additionally, in much of his email correspondence Mr Forte used the email address '[email protected]' with a signature block which named multiple separate entities. The effect, as can be seen from this example, makes it unclear whether Mr Forte is corresponding in his personal capacity, in his capacity as a registered builder or through Resiservices:

However, Mr Forte in both the written submissions he lodged with the Tribunal on behalf of the second, third and fourth respondents and in his oral evidence, made it clear that he accepts that he is the contracting party in his personal capacity. As the second, third and fourth respondents stated in their written submissions dated 16 April 2025:
… I will refer to the entities of the 2^nd, 3^rd and 4^th Respondents as 'me' or 'myself', as I was the sole director and responsible person in all these entities which have no other employees, a fact known to the Applicants from day one, but they only wanted me as a person, my services, my trade discounts and my trades network in the market[.]
Further, as set out above, the publicly available information in respect of the ABN associated with 'Resiservices' indicates that it was associated with a business name only and not a separate legal entity.
We therefore find that the contracting party under the PMA is Mr Forte personally.
In answer to the question of what is the status of this document, we find that:
(a)The PMA is a contract between the owners and Mr Forte in his personal capacity;
(b)While we accept that the owners did genuinely believe that, under the PMA, Mr Forte was their builder, we are satisfied that this is because they assumed that this was the case under the PMA when, on the terms of the PMA itself, he was not. We therefore find that Mr Forte was not the builder of the owners' home under the PMA; and
(c)The PMA was ultimately superseded by the $295,000 lump sum contract dated 25 December 2020, in respect of which Mr Forte was an undisclosed principal. By reason of entering into the scheme with HDG, as described below, for them to construct the owners' home on the basis agreed between them, Mr Forte became a builder, rather than a project manager, in respect of the project and, consequently, the PMA ceased to have any effect from this point.

The $295,000 lump sum contract

As set out above, the owners and HDG entered into the $295,000 lump sum contract, with the contract number 'HDG-2411-Grenache', for the construction of a 'single-story house with under croft garage' for the contract price of $295,000.
While the parties dispute when this contract was entered into, all parties accept that it was entered into prior to the $118,000 lump sum contract.
This contract includes the following schedule of progress payments:

A

B

Deposit Allowance up to 6.5%

$19,175

Pre-slab and site works

$24,000

Ground Floor Slab

$24,000

Ground Floor Plate

$51,000

Roof Cover

$50,000

Lock Up

$50,000

Finishing, Floors and Walls

$32,500

Cabinet and Fit Out

$32,500

Handover

$11,825

TOTAL

$295,000

During the course of construction of the owners' home, the following progress payment demands totalling $295,000.02, which almost exactly match this schedule of progress payments, were issued by HDG to the owners:
(a)INV-0125 for 'Down Payment (deposit) in the amount of $19,175 on 16 March 2021.[13] Receipt issued by HDG on 17 June 2021.[14]
(b)INV-0148 for '1^st progress claim for 20 Grenache Chase Pearsall Pre-slab and site works' in the amount of $24,000 on 8 June 2021.[15]
(c)INV-0180 for 'Progress Bill for Ground Floor Slab' in the amount of $24,000 on 9 August 2021.[16] Receipt issued on 24 August 2021.[17]
(d)INV-0204 for 'Ground Plate' in the amount of $51,000 on 28 September 2021.[18]
(e)INV-0254 for 'Roof Installation' in the amount of $50,000.01 on 23 February 2022.
(f)INV-0270 for 'Lockup' in the amount of $50,000.01 on 6 May 2022.[19]
(g)INV-0274 for 'Finishing Stage' in the amount of $32,500 on 20 May 2022.[20]
(h)INV-0297 for 'Fit Out' in the amount of $32,500 on 13 July 2022.[21]
(i)INV-03311 for 'Handover Payment' in the amount of $11,825 on 24 February 2023.[22]
[13] Exhibit 1, page 496.
[14] Exhibit 1, page 525.
[15] Exhibit 1, page 519.
[16] Exhibit 1, page 540.
[17] Exhibit 1, page 556.
[18] Exhibit 1, page 581.
[19] Exhibit 1, page 722.
[20] Exhibit 1, page 928.
[21] Exhibit 1, page 1047.
[22] Exhibit 1, page 1543.
As noted above, there is controversy as to the date of this contract and establishing when it was entered into is a critical part of determining the HBWC complaint items before the Tribunal and, to the extent relevant to those complaint items, considering the status of the other contractual documents relied upon by one or more of the parties.
Under s 3 of the HBC Act the 'date of the contract or date of the variation means the day on which the contract or variation was signed by the last party to sign it'.
Based upon the material set out in Exhibit 1, the Tribunal finds that the this contract was given to the owners on 24 November 2020.[23] The cover page of this contract contained the pre-printed date of 'Tues. 24.11.2020', with the contract not having been signed by any party at the time it was first emailed to the owners.
[23] Exhibit 1, pages 216 - 241.
The email by which the unsigned copy of the $295,000 lump sum contract was provided to the owners was an email dated 24 November 2020 from Mr Forte to Mr Vozza[24] and which stated relevantly:
Please find building contract as requested. Please sign and Jessica and initial all pages and drawings and send back to me.
[24] Exhibit 1, page 216.
On 23 December 2020, Mr Forte emailed Mr Vozza to remind him that he had not yet returned this contract to him.[25] The email states, relevantly, 'Please do not forget to sign the building contract and initial all pages soon in front of a pharmacist or a justice of peace'.
[25] Exhibit 1, page 296.
On 24 December 2020, Mr Vozza emailed Mr Forte to say: 'Hi Danne, Here's the signed copies'.[26] The copy sent to the Mr Forte was signed but not dated by the owners. However, given this email exchange between Mr Vozza and Mr Forte we are satisfied that the owners signed their copy of this contract on either 23 or 24 December 2020.
[26] Exhibit 1, pages 311 - 335.
On 26 December 2020, Mr Forte then emailed Mr Vozza, providing 'signed building contract and addenda', with the documents accompanying that email being a copy of the $295,000 lump sum contract and the associated Builder Specification/Addenda now having been signed by both the owners and by Mr Ayad on behalf of HDG, with the contract also including the name and apparent signature of a witness to Mr Ayad's signing.[27] The signatures in the contract itself are undated, and indeed the signing page has no designated area to include a date. However, the Builder Specification/Addenda, which is stated on the first page to be for a $295,000 'turnkey fully finished' home, includes on the last page a pre-printed or typed 'Contract Signing Date' of '25/12/2020'.[28]
[27] Exhibit 1, pages 307 to 335.
[28] Exhibit 1, pages 319 to 335, and pages 319 and 335 in particular.
For completeness, it is noted that a further copy of the $295,000 lump sum contract, which appears to be the same signed version as that referred to above, appears in Exhibit 1 at pages 1837 - 1861.
On the basis of this documentary evidence, we are satisfied and find that the builder HDG signed this contract on 25 December 2020 after the owners signed the contract on either 23 or 24 December 2020. We are therefore satisfied and find that the date of the $295,000 lump sum contract was 25 December 2020.
At the hearing, the respondents contended that the date of the $295,000 lump sum contract was 24 November 2020. Save that this was the pre-printed date included on the first page of the first unsigned version of this contract, and thus carried over to subsequent copies exchanged by email as set out above, there is no credible evidence whatsoever to suggest that the contract was signed by all parties, and thus entered into, any time prior to 25 December 2020. While the contract includes the name and apparent signature of a witness to Mr Ayad's signing, that witness was not called to give evidence as to when that signing took place. In respect of this issue, and the similar issue addressed below in relation to the $118,000 lump sum contract, orders were also made at the close of the final hearing to permit any party to make an application to tender further documentary evidence. However, no further evidence was sought to be adduced by any respondent to support their contention that the $295,000 lump sum contract was entered into on 24 November 2020 or indeed on any date earlier than 25 December 2020. It therefore remains the case that any such contention is simply not credible.

The Tribunal also notes for completeness that the owners contend that Mr Forte misled them into believing he was their builder under the $295,000 lump sum contract because, on 11 November 2020, Mr Forte provided them with a letter for use in their finance application which said that Mr Forte was 'ready, able and willing to enter into a building contract' with the owners.[29]
[29] Exhibit 1, pages 163 - 164.
Save that, as addressed below, the owners were not privy to the arrangement entered into between Mr Forte and HDG, there is no doubt that the $295,000 lump sum contract clearly states that the builder is HDG and that the registered builder under it is Hany Ayad.[30] Further, the email Mr Forte sent to the owners on 24 November 2020 also forwards an email which was originally from HDG to Mr Forte. This email from HDG to Mr Forte said '… Please let your client sign also the drawings for us to bind them with the contract …'.[31]
[30] Exhibit 1, page 216.
[31] Exhibit 1, page 216.
The owners had every opportunity between 24 November 2020 and 25 December 2020 to read both this email and the contract and to make any inquiries they wanted to make, as well as to obtain advice on the contract if they wished to do so.
The evidence of both Mr Vozza and Mr Ayad was that they had never met each other prior to or during the course of the $295,000 lump sum contract being entered into. While obviously unusual, the parties were content to enter into contractual relations on that basis and there is nothing to suggest that either the owners or HDG were misled as to the identity of the other, at least at the time they chose to sign the contract.

In these circumstances, we are not satisfied that there are any vitiating factors which prevent this contract from being binding on both the owners and HDG.
As addressed in further detail below, we are also satisfied from the evidence that:
(a)the $295,000 lump sum contract was the contract under which the owners' home was subsequently built; and
(b)Mr Forte is both an undisclosed principal to the $295,000 lump sum contract and he in fact personally undertook building work for the purposes of that contract.
In answer to the question of what is the status of this contract, we find that:
(c)the $295,000 lump sum contract is a valid home building work contract between the owners and HDG, entered into on 25 December 2020, and to which Mr Forte is an undisclosed principal; and
(d)save for those parts of the build which were performed by the owners, Mr Forte is with HDG the builder of the home under the $295,000 lump sum contract.
We will identify later in these reasons those parts of the home which were built by the owners and for which Mr Forte and HDG are therefore not liable.

The $118,000 lump sum contract

As set out above, some time after the $295,000 lump sum contract was signed, the owners and HDG signed the $118,000 lump sum contract, with the contract number 'HDG-0601-Grenache' and stated to be for the construction of a 'single-story house with under croft garage (Structure only)'.
The $118,000 lump sum contract includes the following schedule of progress payments:

A

B

Deposit Allowance up to 6.5%

$7,670

Pre-slab and site works

$20,000

Ground Floor Slab

$25,000

Ground Floor Plate

$25,000

Roof Cover

$30,000

Lock Up

$10,330

TOTAL

$118,000

Based upon the evidence before us, we understand that the $295,000 lump sum contract and the $118,000 lump sum contract both entail building work on the owners' home in accordance with the same drawings and specifications, but with the difference between the two contracts being the stage up to which the builder would complete the works. Under the $295,000 lump sum contract, the builder was to build the home to practical completion, whereas the $118,000 lump sum contract provides for the builder to only build the home to the lock-up stage.
The $118,000 lump sum contract again clearly states that the builder is HDG and that the registered builder is Mr Ayad. On its terms, it also provides that the interior and exterior finishings of the home are to be completed by the owners themselves.
The clear evidence before the Tribunal is that the owners willingly signed the $118,000 lump sum contract. To the extent they did so without properly reading the document this would not, in itself, invalidate the contract. Indeed, as addressed above, the owners' failure to properly read either the PMA or the $295,000 lump sum contract does not affect the validity of either of those contracts.
However, there is significant controversy between the parties as to:
(a)the date on which the $118,000 lump sum contract was signed;
(b)the circumstances under which it was signed; and
(c)the status of this contract, specifically whether it was a legitimate contract between the parties and, if so, whether it had the effect of terminating the $295,000 lump sum contract.
Mr Forte and HDG maintain that this contract is inconsistent with, and so revokes and replaces, the $295,000 lump sum contract.
However, for the reasons addressed below, we find that:
(a)Mr Forte induced the owners through misrepresentation to sign the $118,000 lump sum contract;
(b)it was never the owners' intent to agree to termination of the $295,000 lump sum contract; and
(c)the $118,000 lump sum contract is therefore void or voidable and it does not revoke or replace the $295,000 lump sum contract.
As with the $295,000 lump sum contract, there is controversy as to the date of the $118,000 lump sum contract and establishing when it was signed by the parties is a critical part of determining the HBWC complaint items before the Tribunal.
The front page of this contract bears the typed date of 'Wed.09.12.20'. The contract contains one place where the parties are to sign and date the contract. The owners contend that the correct date of the contract is 15 March 2021. During the final hearing Mr Forte and HDG contended that the correct date is 9 December 2020, consistent with the typed date on the front page.
An unsigned copy of the $118,000 lump sum contract appears in Exhibit 1 at pages 376 to 383. The Tribunal is satisfied and finds that the unsigned contract was emailed by Mr Forte to the owners on 15 March 2021, with the email stating relevantly:[32]
Attached is the structure only building contract. Please sign it and return to me so we can apply for building permit. Thank you
[32] Exhibit 1, page 375.
The unsigned copy included in Exhibit 1 is replete with obvious gaps and missing text throughout the document, although this may be a result of how it was formatted and/or printed.
On 16 March 2021, Mr Forte emailed Mr Vozza, stating: 'Thanks for the signature page but these contracts all pages must be initialed [sic]'.[33] This email also forwards the previous email from Mr Forte on 15 March 2021.
[33] Exhibit 1, page 384.
A copy of the $118,000 lump sum contract signed by the owners, but not by HDG, then appears in Exhibit 1 at pages 1878 to 1885. Save for the pre‑printed or typed date on the front page, this copy of the contract signed by the owners includes no other date, including where they have signed, although we note that the signing page again includes no specific place to include the date. There is also no witness to the signatures of the owners in this copy. However, as the owners accept that they did sign and initial this contract, we do not find it significant that their signatures were not witnessed.
A copy of the $118,000 lump sum contract including signatures by both the owners and on behalf of HDG then appears in Exhibit 1 at pages 283 to 290. In this copy, the owners' signatures are again not witnessed. However, this copy includes the signature of Mr Ayad on behalf of HDG, the details of a witness to his signature, and the inclusion of a typed date in the form 'Date: 09.12.2020'.
It is this date of 9 December 2020 that the respondents contended in their evidence at the final hearing is the correct date of the $118,000 lump sum contract. We note that, if this contract was indeed dated 9 December 2020, then this pre-dates the date of the $295,000 lump sum contract, which the Tribunal has determined to be 25 December 2020. It would follow that, if that were the case, the question would arise as to whether the $295,000 lump sum contract then revokes and replaces the $118,000 lump sum contract (being the opposite of the position argued by the respondents).
In any event, on the basis of the documentary evidence referred to above and the evidence of Mr Vozza at the hearing, the Tribunal is satisfied and finds that the $118,000 lump sum contract was signed by the parties to it on or about, but no earlier than, 16 March 2021. The Tribunal also finds that there is no credible evidence whatsoever to suggest that the $118,000 lump sum contract was signed on or about 9 December 2020, as contended by the respondents at the final hearing.
Given the significance of the dispute between the parties as to the date of this contract, the Tribunal afforded the respondents every opportunity to give evidence about this contract, both during their oral evidence and by giving them after the close of the hearing an opportunity to file further materials such as producing the original to the Tribunal or by providing evidence such as an email trail as to the provenance of the contract. While, as noted above, the $118,000 lump sum contract includes the name and an apparent signature of a witness to Mr Ayad's signing, that witness was not called to give evidence as to date on which they witnessed that signing. Further, despite having leave to apply, no further documentary evidence regarding the circumstances of this contract was sought to be adduced by any of the respondents.
Importantly, despite his evidence to the contrary at the hearing, Mr Forte on behalf of the second, third and fourth respondents has belatedly conceded, in the closing submissions lodged on behalf of those respondents, that the $118,000 lump sum contract was signed by the owners around the middle of March 2021.[34]
[34] Second, Third and Fourth Respondents' Submissions dated 16 April 2025 at para 12.
No such concession has been made by HDG. However, in light of all of the matters referred to above, including the belated concession by Mr Forte, any contention by HDG that the $118,000 lump sum contract was signed by the parties on 9 December 2020, or indeed on any date earlier than 16 March 2021, is simply not credible.
As to the status of the $118,000 lump sum contract, the unequivocal evidence of Mr Vozza at the hearing was to the effect that:
(a)he was told by Mr Forte that this contract was required in order to obtain a building permit from the City of Wanneroo and that it was signed by him and Ms Bommarito for that sole purpose; and
(b)at all times, he and Ms Bommarito have proceeded on the basis that the $295,000 lump sum contract was valid and in force for the purposes of building their home; and
(c)it was never the intention of the owners to terminate the $295,000 lump sum contract and replace it with the $118,000 lump sum contract.
Why it could ever be the case that a contract for only part of a house build might be required to obtain a building permit, particularly for what was intended to be a fully completed house, was never adequately explained during the hearing and appears, on the face of it, quite contrary to the normal process. However, the owners' evidence was that they had moved to Australia from overseas, were not familiar with building processes in Australia and were relying upon Mr Forte to manage the arrangements for the construction of their home.
The contention by the owners that they only signed the $118,000 lump sum contract because they were told by Mr Forte that it was required to obtain a building permit is, in the Tribunal's view, consistent with the email dated 15 March 2021 from Mr Forte to Mr Vozza, referred to above, which stated: 'Attached is the structure only building contract. Please sign it and return to me so we can apply for building permit.'
The Tribunal accepts the evidence of the owners and finds that:
(a)they were induced by Mr Forte to sign the $118,000 lump sum contract on the basis of his representation to them that it was required only for the purposes of obtaining a building permit; and
(b)it was never their intention to terminate the $295,000 lump sum contract.
In answer to the question what is the status of the $118,000 lump sum contract, we find that:
(a)the $118,000 lump sum contract is not the contract under which the owners' home was built;
(b)this contract was only signed by the owners on the basis of Mr Forte's representation that it was required solely in order to obtain a building permit for the owners' home;
(c)while the signing of the $118,000 lump sum contract was a part of the scheme put in place between Mr Forte and HDG in order to build the owners' home on the basis agreed between them, this contract is void or voidable by the owners and cannot be relied upon by Mr Forte or HDG; and
(d)the $118,000 lump sum contract does not in any way impact upon the validity or enforceability of the earlier $295,000 lump sum contract.
For the reasons set out below, these findings are also not impacted by the other key documents sought to be relied upon by the respondents. However, those documents establish, to the satisfaction of the Tribunal, that while the owners proceeded on the basis that their home was being built in accordance with the $295,000 lump sum contract, Mr Forte and HDG had entered into a scheme to jointly construct the home on terms they had agreed between themselves, but which were not disclosed or agreed to by the owners.

Letter dated 14 November 2020 (purportedly) signed by Mr Vozza appointing 'Danne Forte, our project manager, as superintendent and agent for the build'

At page 2541 of Exhibit 1 is what purports to be a letter dated 14 November 2020 signed by Mr Vozza and addressed to HDG. The body of the letter states:
Dear Hany,
This is to confirm that we have appointed Danne Forte, our project manager, as superintendent and agent for the build and building contract of the above property effective immediately. Thank you
Both HDG and Mr Forte contend that by signing this letter Mr Vozza on 14 November 2020 notified HDG that he had appointed Mr Forte to be his project manager, superintendent and agent for the build.
This appointment was then relied upon by Mr Forte for, among other things, to purport to terminate the $295,000 lump sum contract in the circumstances addressed below.
In his oral evidence given under affirmation Mr Vozza denied he had signed this letter either by signing it in the presence of Mr Forte or by receiving it by email and then returning a signed electronic copy of the letter to Mr Forte.
Mr Vozza's evidence was also that there is no email in the totality of the bundles of documents between the owners and Mr Forte lodged by the parties that refers to this letter. Mr Vozza's evidence was in effect that he first saw this letter when it was disclosed by the second, third and fourth respondents in the bundle of documents they lodged with the Tribunal. The Tribunal has itself reviewed these documents and finds it to be the case that there is no email between Mr Vozza and Mr Forte in respect of this purported letter of authority.
Given Mr Vozza's evidence was to the effect that his signature has been fraudulently placed on this letter, the Tribunal afforded the respondents every opportunity to give evidence about this letter, both during their oral evidence and by giving them an opportunity after the close of the hearing to file further materials, such as producing the original to the Tribunal or by providing evidence such as an email trail as the provenance of this letter. However, no further evidence about this letter was provided by any of the respondents.
The Tribunal accepts the evidence of Mr Vozza that he did not ever sign this letter and that, to the extent it purports to include his signature, that signature has been added by a person other than Mr Vozza. The Tribunal also notes that, as at the date of this purported letter of authority:
(a)it includes no detail of the building contract for which it purportedly appointed Mr Forte as agent;
(b)in any event, there was no building contract in place in respect of the owners' home as at the date of this purported letter of authority, with only an unsigned copy of the $295,000 lump sum contract having been emailed to the owners on 24 November 2020 and that contract subsequently being entered into by the parties on 25 December 2020 as addressed above;
(c)the evidence of Mr Vozza was that he had never met Mr Ayad as at the time of this purported letter; and
(d)by reason of the above matters, there is no credible explanation as to why Mr Vozza would have written such a letter at the time it was purported to be written
The Tribunal also finds that the clear inference that must be drawn is that this letter was prepared by Mr Forte or by Mr Ayad, or the two of them acting together, in furtherance of setting up the subsequent arrangements between them for their scheme to jointly construct the home on terms they agreed between themselves, but which were not disclosed or agreed to by the owners.
In any event, even if we had accepted that this letter is genuine, it is not signed by Ms Bommarito and for that reason it does not effectively appoint Mr Forte to represent the owners.
In answer to the question of what is the status of this document, we find that the letter dated 14 November 2020 addressed to HDG does not appoint Mr Forte to represent the owners as their project manager, superintendent and agent for the build.

Written confirmation of an agreement between Mr Forte and HDG on 7 December 2020

By letter dated 6 December 2020, Mr Ayad of HDG wrote to Mr Forte, who he addressed as 'Dear Danne', to confirm that he would 'reluctantly agree' to 'limit the scope of our involvement and scope of work and responsibility for the above building contract dated on the 24^th of November 2020 to structural works only (Slab, Shell and roof cover)' but only on the condition that 'the previous contract is terminated and superseded' by a new structure only contract.[35]
[35] Exhibit 1, page 2139.
On 7 December 2020 Mr Forte wrote on the face of the letter 'Condition accepted and contract date 24/11/2020 is hereby terminated'. Mr Forte then personally signed and dated this letter. Given that HDG directed this letter to Mr Forte personally and that Mr Forte then countersigned the letter also in his personal capacity, we find that Mr Forte was acting in his personal capacity when he was discussing issues relating to the owners' contract with HDG and when he purported, by way of this letter, to terminate the owners' contract. Acting in his personal capacity in this regard, as opposed to acting through some other entity, is consistent with Mr Forte personally being the contracting party under the PMA.
The clear evidence of the owners is that neither HDG's letter dated 6 December 2020, nor Mr Forte's purported termination on 7 December 2020 of the contract 'dated on the 24^th of November 2020' was ever made known to them. Their evidence was that this document was first seen by the owners when it was provided by Mr Forte in the bundle of documents lodged with the Tribunal on behalf of the second, third and fourth respondents.
The Tribunal accepts the evidence of the owners that this letter was never provided to them prior to the Tribunal proceedings, noting in particular that the bundles lodged by the parties include no email or other document that suggests this letter was provided to the owners at any time prior to the Tribunal proceedings.
In any event, the Tribunal finds that this purported termination by Mr Forte of a building contract in respect of the owners' home was invalid and of no effect because:
(a)Mr Forte had no authority to purport to terminate any contract on behalf of the owners; and
(b)As at 7 December 2020, there was no building contract in place in respect of the owners' home, with the $295,000 lump sum contract only being entered into on 25 December 2020 and the $118,000 lump sum contract being signed no earlier than 16 March 2021.
In answer to the question what is the status of this document we find that:

(a)Mr Forte was acting in his personal capacity when he was discussing contract issues with HDG on 6 and 7 December 2020; and
(b)Mr Forte's purported termination of a contract dated 24 November 2020 is invalid and of no effect as there was no building contract in place in respect of the owners' home at that date.

This document is, however, relevant to the view we form regarding the scheme entered into between Mr Forte and HDG to jointly construct the owners' home on terms they had agreed between themselves, but which were not disclosed or agreed to by the owners, as further developed by Mr Forte and HDG in the next document addressed below.

A 'Letter of Understanding Going Forward' dated 12 December 2020 between Mr Forte and Hany Ayad

Mr Forte entered into a 'Letter of Understanding Going Forward' with HDG on or about 12 December 2020, that is, some five days after purporting to terminate a contract between the owners and HDG, but some 13 days before the owners actually first entered into a contract with HDG, namely the $295,000 lump sum contract, on 25 December 2020.[36]
[36] Exhibit 1, page 2142.

This letter was signed by Mr Forte personally but used the signature block set out above which named multiple entities. However, for the same reasons we found that Mr Forte was acting personally when he entered into the PMA and when sending emails with this signature block, we are satisfied that Mr Forte was again sending this letter in his personal capacity.
The owners' evidence, which the Tribunal accepts, is that this 'Letter of Understanding Going Forward' was again unknown to them until it was provided by Mr Forte in the bundle of documents lodged on behalf of the second, third and fourth respondents.
This letter confirms an arrangement reached by Mr Forte and HDG which provided in effect, among other things:
(a)if HDG is unable to source contractors to build the home, then Mr Forte will, in HDG's place, select, engage and direct contractors to build the home; and
(b)HDG will, irrespective of whether it has undertaken any relevant work, issue invoices up to the full limit of the owners' loan for the construction of their home.
Given the significance of this letter, it is useful to set out in full.
We are satisfied that under this 'Letter of Understanding Going Forward' dated 12 December 2020, Mr Forte in his personal capacity is an undisclosed principal to the $295,000 lump sum contract that was entered into on 25 December 2020, after the date of this letter. This is for the following reasons.
First, because we are satisfied the owners entered into the 25 December 2020 with HDG in the belief that HDG was the sole principal to that contract, whereas not disclosed to them Mr Forte was also a principal to the contract under the 'Letter of Understanding Going Forward'.
Second, because we are satisfied that under the 'Letter of Understanding Going Forward' between HDG and Mr Forte that Mr Forte would be able to undertake the building work under that contract and that HDG would issue invoices to the owners in order to obtain progress payments from the owners' lender for work that was in fact undertaken by Mr Forte, including work done by him through directly retaining contractors and tradespeople.
As is explained in Highfield Property Investments Pty Ltd v Commercial & Residential Developments (SA) Pty Ltd[No 2] [2012] SASC 191: (Citations omitted)
11Where the agency is disclosed, the identity of the parties to the contract involves the ascertainment of the objective common intention of the parties, ie the proper construction of the contract. Where the agency is undisclosed, the identity of the parties to the contract must ex hypothesis depend upon the intention of the agent and principal because only actual authority is relevant (there being no room for ostensible authority or ratification).
12It follows from the application of these principles that, if it is the intention of the agent to contract as agent on behalf of two principals, namely the agent itself as well as the undisclosed principal, then both the agent and the undisclosed principal will be liable on the contract and the other party need not elect to take a judgment against one only of them. There do not appear to be any authorities on this question, but Reynolds in Bowstead and Reynolds on Agency suggests that this is the position in the following passage:
But it is now clear that there can be cases where the agent is liable together with the undisclosed principal: and there seems no real reason why this should not be so in the case of the undisclosed principal also.
While we note the 'Letter of Understanding Going Forward' on its face refers to a 'recently signed' structure only contract, it is clear that, as at the date of the letter which is 12 December 2020, the owners and HDG had not yet entered into either the $295,000 lump sum contract, which the Tribunal has found to be in effect, or indeed the $118,000 lump sum contract, which the Tribunal has found to be void or voidable and of no effect.
The dates of this 'Letter of Understanding Going Forward' and the previous letter dated 6 December 2020, with handwritten notation dated 7 December 2020, align with what the respondents maintained at the final hearing were the actual dates of the $295,000 lump sum contract and the $118,000 lump sum contract. While amateurish, particularly in seeking to rely upon assumed contract dates which would, in due course, be provably incorrect, these documents support the scheme sought to be put in place by Mr Forte and HDG to enable them to undertake the building of the owners' home on the manner agreed between them, but without disclosing that arrangement to the owners themselves.
That such significant correspondence could be sought to be put in place between Mr Forte and HDG, without having been agreed to and signed by the owners let alone, as the Tribunal has found, ever having even been provided to the owners, is beyond any rational explanation. No adequate explanation for this approach was advanced by Mr Forte or Mr Ayad in either their evidence at the final hearing or their closing submissions lodged after the hearing.
It is also clear from the letter from HDG to Mr Forte on 6 December 2020 that Mr Forte did expect that the owners, if they had not already done so, would soon enter into a contract for a turnkey project and that after this was done, they would enter into a contract for a structure only project. We therefore understand the letter to refer to an intention to enter this arrangement with respect to either of these contracts and in circumstances where Mr Forte was to misrepresent to the owners that the structure only contract was required to obtain a building permit.
The nature of the scheme established by Mr Forte and HDG was such that, on dates between what they understood would be the effective contract dates of the $295,000 lump sum contract and the $118,000 lump sum contract, they agreed between themselves that:
(a)The $295,000 lump sum contract would be terminated;
(b)In its place, the owners would be asked to sign the $118,000 lump sum contract, on the basis that this was a requirement in order to obtain a building permit;
(c)Mr Forte and HDG would then proceed to build the home in a manner akin to a cost plus arrangement, with Mr Forte able to undertake as much of the building work as he wished to, with HDG's approval, but with HDG invoicing the owners for all works up to the full price of the $295,000 lump sum contract and Mr Forte otherwise undertaking any building work beyond that value and invoicing the owners accordingly.
Emails written by him make clear that Mr Forte, from as early as 12 December 2020 until the point at which the home achieved practical completion, then did in fact select, engage and direct contractors to build the home. For example:
(a)Mr Forte on 12 December 2020 wrote to Mr Vozza to say, '[w]e received this from the shire yesterday. There is only one point and that is the garage opening. The other is just to show levels which we will do. Will call them on [Monday] and discuss with planning officer';[37]
(b)Mr Forte emailed Mr Vozza on 28 April 2021 to say, 'we will pour the slab as soon as finance kicks in';[38]
(c)Mr Forte emailed Mr Vozza on 15 July 2021 to say, 'We have poured the footings and slab of under croft.';[39]
(d)Mr Forte emailed Mr Vozza on 11 September 2021 to say, 'Jim also told me that you wanted him to go ahead and continue with the walls above the garage all the way up without the slab. This is very unsafe and I will not permit it under my watch. We cannot have two captains on this project and I must respectfully ask you not to directly address the contractors and that you go through me on every occasion.';[40]
(e)Mr Forte emailed Mr Vozza on 23 March 2022 to say, 'Roof cover is ordered and materials and should be done in next 10 days. Just in time before Dad arrives. Doors are also ordered and glazing. There are some delays with glazing as Jason windows is behind in their factory as more than 140 workers were in isolation!!';[41] and
(f)On 1 May 2022 Mr Forte emailed Mr Vozza,[42] stating relevantly:
Pursuant to clause 5 c and 5 d of the building contract and after many verbal and written requests that you do not contact our contractors directly nor have any one including yourself as owner come to site without the explicit permission, and after several warnings, the last of which yesterday, we hereby give you final notice of our intention to terminate the contract.
From this point onwards, no one is allowed on site without our permission and no work is allowed on site until a final account is made for work done and materials and a settlement is reached.
Noting your circumstances and to avoid this matter taking too long in disputes, I am happy to meet you on site or elsewhere to discuss what happens next. Thank you.
[37] Exhibit 1, page 2143.
[38] Exhibit 1, page 486.
[39] Exhibit 1, page 529.
[40] Exhibit 1, page 564.
[41] Exhibit 1, page 645.
[42] Exhibit 1, page 690.
However, notwithstanding the scheme agreed between themselves, HDG and Mr Forte, in undertaking work on building the owners' home and engaging with the owners, proceeded in a manner consistent with the $295,000 lump sum contract, and inconsistent with the $118,000 lump sum contract, including by way of the following:
(a)correspondence by Mr Forte with the owners regularly including the reference number and other references to the $295,000 lump sum contract;
(b)progress payment invoices being issued by HDG under and in accordance with the progress payment schedule for the $295,000 lump sum contract;
(c)HDG issuing a certificate of completion referring to the $295,000 lump sum contract;
(d)HDG issuing deed of handover and builder release under the contract 'dated the 24^th of November 2020'[43]
(e)HDG's bank statements which show HDG received all progress payment monies paid to the builder under the 25 December 2020 contract, totalling $278,825, and then transferred all but $8,274.65 of these monies to a bank account operated by Building Renewals Pty Ltd;[44] and
(f)the majority of the invoices for building work on the home show that, contrary to any suggestion that Mr Forte was a project manager only, the invoices are in Mr Forte's own name or in the name of businesses controlled by him, but are not in the names of the owners as owner builders. For example:
(i)the invoice provided by Auspest for the installation of a Termiticide Barrie on 11 August 2021 is issued to Building Renewals Pty Ltd;[45]
(ii)the invoices issued by Right Angle Roofing & Renovations for Roof Carpentry dated 17 February 2022, 25 February 2022, 23 March 2022 and 8 April 2022 are issued to 'Danne Forte Building Renewals Pty Ltd';[46]
(iii)the invoice issued by Silver Fern Roofing on 1 April 2022 are issued to Resi Services with the Supervisor of the site named as 'Danne';[47] and
(iv)the invoice issued by AriaTech for an air conditioning system dated 5 May 2022 is issued to 'Danne Forte Resiservices'.[48]
[43] Exhibit 1, page 1552.
[44] Exhibit 1, pages 2601 - 2622.
[45] Exhibit 1, pages 583 - 584.
[46] Exhibit 1, pages 705 - 711.
[47] Exhibit 1, page 712.
[48] Exhibit 1, page 720.
The above correspondence makes abundantly clear that Mr Forte, a registered builder, was undertaking much of the work of building the owners' home and was corresponding with the owners as a builder on the project. Likewise, Mr Forte's own correspondence is inconsistent with his contention at the final hearing that, save for the structure only part of the project, the owners were building their home in their capacity as 'owner‑builders', with Mr Forte merely providing project management services.
It is also clear that Mr Forte gave directions to HDG, for example he directed HDG to issue a variation to the owners on 24 May 2021 as follows:[49]
[49] Exhibit 1, page 512.
…
Please issue variation no 1 to the above owner for the following:
1.Extra over for internal painting of the house.
2.Extra over for solid benchtops.
3.Extra over for Bosch appliances.
4.Extra over for flooring in living areas and bedrooms.
5.Extra over for Oliveri bathroom fixtures.
6.Extra over for splashbacks.
7.Extra over for robes.
Value for variation $43,600 plus GST.
Please add: 'This variation and the above cannot be cancelled nor changed or reduced and the amount is due and payable, without contestation, on first demand by the builder but in any case no later than 6 months from commencement of the works and pouring of the slab of the undercroft garage'.
Jennifer,
Please try to send it today. Thank you
This variation was then sent by HDG to the owners on 25 May 2021.[50]
[50] Exhibit 1, page 513.
In answer to the question what is the status of the 'Letter of Understanding Going Forward', we find that:
(a)as a consequence of the arrangement set out in the 'Letter of Understanding Going Forward', Mr Forte in his personal capacity is an undisclosed principal to the $295,000 lump sum contract and is therefore a party to the contract, namely a builder for the purposes of the contract; and
(b)as a consequence of being an undisclosed principal, Mr Forte is along with HDG jointly and severally liable to the owners under this contract.

Alleged misleading and deceptive conduct by Mr Forte

The Tribunal finds that the conduct of Mr Forte in inducing the owners to sign the $118,000 lump sum contract and in then proceeding to personally undertake a significant proportion of the work of building their home on the basis of his undisclosed arrangement with HDG was plainly misleading.
Section 15A of the HBC Act states:
15A.Misleading or deceptive conduct by builder or owner as to contract
A person who is a builder or an owner must not, in connection with —
(a)the formation or execution of a contract; or
(b)negotiations to vary a contract after execution; or
(c)the circumstances in which a contract or variation of contract is entered into, engage in conduct that is misleading or deceptive.
Pursuant to s 17, a party to a contract may make a complaint to the Building Commissioner in respect of any alleged breach of s 15A and, pursuant to the BSCRA Act, such complaint will then be deal with as a HBWC complaint.
In addressing a complaint of misleading and deceptive conduct by a builder contrary to s 15A of the HBC Act, the Tribunal in Hippydayze Pty Ltd and Mener Group Pty Ltd [2019] WASAT 92 set out the following principles at [70] to [72]:
70One of the most useful and often cited statement of the relevant principles applied when determining whether conduct is misleading or deceptive is that of McHugh J in Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592 at [109] as summarised by Macaulay J in Vouzas v Bleake House Ptd Ltd [2013] VSC 534 at [107]:
•whether the conduct is misleading or deceptive is a question of fact;
•in determining whether a contravention of the particular statutory provision has occurred the task is to examine the relevant course of conduct as a whole in light of the relevant surrounding facts and circumstances;
•it is an objective question that the court or tribunal must determine for itself; and
•the effect of any relevant statements or actions or any silence or inaction occurring in the context of a single course of conduct must be deduced from the whole course of conduct.
71The standard of proof is on a balance of probabilities. However, given the seriousness of the allegations in complaints of misleading or deceptive conduct, it is necessary for the Tribunal to feel an 'actual persuasion' of the occurrence of the oral representation; Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361. 72
72It is not necessary for the Tribunal to find that the respondent intended to mislead or deceive the applicant. Contraventions of the legislation can occur even in circumstances where a respondent has acted reasonably and honestly; French CJ, Crennan and Kiefel JJ in Google Inc v ACCC (2013) 249 CLR 435 at [6]-[9].
The complaint items by the owners which include complaints of misleading and deceptive conduct by Mr Forte are:
(a)Complaint item 1, which relates to misleading and deceptive conduct as to the identity of the builder of the owners' home; and
(b)Complaint item 2, in respect of Mr Forte's representation to the owners that the $118,000 lump sum contract was required only for the purpose of obtaining a building permit.

In respect of the complaint as to the identity of the builder, we have addressed above the difficulties with the owners' claim that they believed Mr Forte was the builder of their home under the $295,000 lump sum contract and that HDG was Mr Forte's company.
However, by reason of the findings set out above, the true state of affairs in respect of the $295,000 lump sum contract was that it was entered into by the owners and HDG only after Mr Forte and HDG had already put in place their scheme by which they would together build the owners' home on the basis agreed between them, but which was not disclosed to the owners.
In the circumstances, we find that Mr Forte, as an undisclosed principal to the $295,000 lump sum contract, failed to disclose to the owners either:
(a)his status as an undisclosed principal; or
(b)the nature of the arrangement reached between him and HDG.
We find that the conduct of Mr Forte in this regard was conduct in connection with the formation or execution of a contract, namely the $295,000 lump sum contract, that was plainly misleading or deceptive in contravention of s 15A of the HBC Act.
In respect of the complaint regarding the circumstances of the signing by the owners of the $118,000 lump sum contract, we are satisfied and find that Mr Forte misled the owners in relation to the reason for the preparation of that contract, and the request for the owners to sign it, on the basis that he told the owners that it was required only for the purposes of obtaining a building permit. In this regard, we also find that, in doing so, Mr Forte failed to disclose to the owners that:
(a)the $118,000 lump sum contract was part of the scheme agreed between him and HDG by which they would together build the owners' home on the basis agreed between them, but not disclosed to the owners; and
(b)to the extent he and HDG would seek to rely upon the terms of the $118,000 lump sum contract for the purposes of their scheme, Mr Forte was an undisclosed principal to that contract.
We therefore find that the conduct of Mr Forte in this regard was conduct in connection with the formation or execution of a contract, namely the $118,000 lump sum contract, that was plainly misleading or deceptive in contravention of s 15A of the HBC Act.
For completeness, we note that relevant complaint items refer only to misleading and deceptive conduct by Mr Forte. In turn, the submissions of HDG contend, in effect, that it was also deceived by Mr Forte.
It is unclear from the evidence as to precisely what proportion of the works on the owners' home was completed by each of Mr Forte and HDG respectively. However, save for some small parts of the finishing works undertaken by the owners themselves, it is clear that both Mr Forte and HDG each undertook significant building work on the project. Based upon the evidence, including from Mr Ayad himself, it is clear that most if not all of the work in respect of the structure only part of the build was completed by HDG. However, the evidence is that Mr Forte undertook the majority of the building work from that point.
In any event, the Tribunal finds that the manner in which the work was undertaken by Mr Forte and/or HDG was in accordance with the scheme established between them such that all work to the full extent of the owners' financing was invoiced by HDG and, where the work had actually been undertaken by Mr Forte, payments then forwarded by HDG to Mr Forte.

Nonetheless, the owners do accept that they received some value for the building works performed by HDG and Mr Forte in breach of these obligations. They therefore claim only the amounts set out above which they say are in excess of the stipulated contract price, subject to certain other adjustments for work performed by them and for certain variations for certain kitchen and bathroom works which they accept are proper.
On the basis the owners do not claim that they should be refunded the full amounts that they paid to HDG and Mr Forte over the amount of $118,000 we will not make orders that they do this.

The HBWC compensation claims

The owners seek orders from the Tribunal that the respondents pay compensation to the owners for their breaches of the 25 December 2020 contract. The Tribunal has power under s 43(1)(a) and s 41(2)(d)(i) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) to make such orders.
Section 43(1) of the BSCRA Act provides:
(1)If the Building Commissioner refers a HBWC complaint to the State Administrative Tribunal, the Tribunal may —
(a)if satisfied that the order is justified, make a HBWC remedy order; or
(b)otherwise, decline to make the order[.]
The Tribunal (when constituted by a Senior Member) considered the proper construction of the discretion conferred by s 43(1) of the BSCRA Act in Deshmukh and Distinctive Building Services Pty Ltd [2024] WASAT 15 (Deshmukh). The Senior Member in that decision said at [59] - [60]:
59.In my view the considerations concerning whether a HBWC remedy order is justified to resolve a HBWC complaint that a respondent has breached a home building work contract are:
(1)Is there a valid home building work contract between the applicant and the respondent to the proceeding?
(2)What are the relevant terms of the contract?
(3)Has the respondent breached the relevant terms of the contract?
(4)Has the applicant suffered loss, damage, or detriment which can be addressed by a HBWC remedy order?
60.In my view, if the Tribunal is satisfied that there is a valid home building work contract between the applicant and the respondent, and that the respondent has breached a relevant term of the contract which can be addressed by way of a HBWC remedy order then the Tribunal is required to make a HBWC remedy order. It then has a discretion regarding the HBWC remedy order it will make under the provisions of s 41(2) of the BSCRA Act.
With the respect to considerations 1, 2 and 3 referred to in Deshmukh we find, for the reasons given above; that:
(a)the $295,000 lump sum contract is a valid home building work contract which is binding on the owners, HDG and, as an undisclosed principal, Mr Forte;
(b)that with the exception of those works performed by the owners the home was built by HDG and Mr Forte under the $295,000 lump sum contract;
(c)the stipulated contract price in clause 1E of the $295,000 lump sum contract is $295,000, although that price is validly amended by variations 5 in the amount of $18,872 and the unnumbered variation in the amount of $47,960 which brings the contract price to $357,472; and
(d)we find that the builder by demanding payments above the amount of $357,472 did breach clause 1E of the $295,000 lump sum contract and did also breach s 8(4) and s 13(2) of the HBC Act.
With respect to consideration 4 referred to in Deshmukh, the owners contend that they have suffered loss due to the builders' breach of the building contract, together with the misleading and deceptive conduct by Mr Forte, and ought to be compensated for this by repayment of the amounts they paid HDG and Mr Forte above the contract.
For the reasons given above, we are satisfied and we find that the owners did suffer a loss through overpayment of the contract price due to the breach of the building contract by the builders and that this loss can be addressed by a HBWC compensation order, and that we are therefore required to make such an order. In respect of Mr Forte, we also find that his misleading and deceptive conduct constitutes a further and alternative basis for compensation to be ordered against him.
Consequently, we will order HDG and Mr Forte jointly and severally to pay to the owners the difference between the amount of $399,630.06 which they paid to HDG and Mr Forte and the adjusted contract price of $357,472, which is $42,158.06. We consider it appropriate that this amount is paid by HDG and Mr Forte within 28 days of the date of this order.

The principles applicable to the determination of a building service complaint

The Tribunal in these reasons respectfully adopts:
(1)The principles applicable to the determination of a building service complaint set out by the Tribunal in Owners of Island Apartments Strata Plan 52597 and Pindan Pty Ltd [2018] WASAT 2 (Pindan Pty Ltd) at [27] - [35]:
27The Tribunal has, pursuant to s 38 of the BSCRA Act power to make a building remedy order if it is satisfied that the regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory.
28The standard of 'proper and proficient' is higher standard of care than 'proper and workmanlike manner' or the reasonable care and skill of a tradesman or contractor.
29The building contract may be relevant to the proper and proficient as it 'defines what the builder was required to do, which informs the issue of workmanship'.
30The phrase 'not been carried out in a proper and proficient manner or is faulty or unsatisfactory' is a broad expression apt to cover a wide range of deficiencies in the construction of a building which can be taken into account.
31Manufacturers recommendations may be departed from if the builder otherwise acted in a proper and proficient manner. A product which is performing well, and is suitable for its application, cannot automatically be said to be faulty or unsatisfactory.
32A mere departure by a builder from its contractual obligations is insufficient to establish the work was not carried out in a proper and proficient manner or was faulty or unsatisfactory.
33Builders are not compelled to search for and install superior products over and above what is adequate for the intended purpose.
34Where the issue is not contractual, the Tribunal should be cautious in regards to ordering remedial work to be undertaken unless the applicant has demonstrated a genuine adverse effect by reason of the building work in question.
35A building service that complies with the BCA will not be found by the Tribunal to be faulty or unsatisfactory or to not to have been carried out in a proper and proficient manner except in exceptional circumstances.
(Footnotes omitted)
(2)The statements of Smith AJ (as her Honour then was) as to the proper construction of s 38 of the BSCRA Act in Gemmill Homes Pty Ltd v Sanders [2018] WASC 179 (Gemmill Homes) at [96], [102], [103], [106] - [111], [125] - [129], [133] and [134] as these are summarised in Deshmukh at [46] to [48]:
46Section 38 of the BSCRA Act gives the Tribunal the power to deal with a building service complaint referred to it by the Building Commissioner.
47In Gemmill Homes at [134], Smith AJ stated that if the Tribunal forms the opinion (is satisfied) under s 38(1)(a) of the BSCRA Act that the regulated building service which is the subject of a building service complaint has not been carried out in a proper and proficient manner or is faulty or unsatisfactory (the requisite opinion), the Tribunal is required to make a building remedy order (emphasis added). The Tribunal then has a discretion regarding a building remedy order it will make under the provisions of s 36(1) of the BSCRA Act. If the Tribunal does not form the requisite opinion, then, under s 38(1)(b) of the BSCRA Act, it may decline to make a building remedy order.
48In the case of a HBWC complaint, s 43(1)(a) of the BSCRA Act provides that the Tribunal may make a HBWC remedy order if it forms the opinion (is satisfied) that a HBWC remedy order is justified. The Tribunal then has a discretion regarding the HBWC order it will make under s 41(2) of the BSCRA Act. If the Tribunal does not form the opinion that a HBWC remedy order is justified then under s 43(1)(b) of the BSCRA Act it may decline to make the order (Original emphasis)
(3)The observations as to the differing natures of building remedy orders under s 36(1)(a) and s 36(1)(b) of the BSCRA Act made by the Tribunal in Brooks and Gransden Building Company Pty Ltd [No 2] (Brooks) [2021] WASAT 86 at [14] to [17]:
14The nature of the BRO is an important consideration. The reason for this is because there is significant difference between a BRO made under s 36(1)(a) and that made under s 36(1)(b) or s 36(1)(c) of the BSCRA Act. The difference is that there are advantages to the owners if the Tribunal makes an order under s 36(1)(a) which are not available under s 36(1)(b) or s 36(1)(c). The advantages include that an order under s 36(1)(a) provides the owners with the added protection that if the remedial work is not performed, or is performed in a faulty or unsatisfactory manner, the owners may seek an order under s 51 of the BSCRA Act which effectively allows for the 'conversion' of the order requiring remedial work to be performed to a monetary order reflecting the costs of a third party performing that work.
15A further advantage of an order under s 36(1)(a) is that any ambiguity which may arise in relation to the issue of liability if the remedial work is itself faulty or unsatisfactory is avoided.
16Finally, an order under s 36(1)(a) may be advantageous because third party contractors are often reluctant to perform remedial works in respect of another builder's underlying work. It is therefore, often difficult to obtain reliable evidence on the costing of remedial work on a third party basis, and if that costing is provided by an independent expert, the expert is not available to do the remedial work (see Sanders and Gemmill Homes Pty Ltd [2017] WASAT 41 (Sanders and Gemmill) at [30] - [33]).
17There is also an advantage to the builder if the Tribunal makes an order under s 36(1)(a) which is not available under s 36(1)(b) and 36(1)(c) of the BSCRA Act. The builder can usually carry out remedial work at a cost less than would be charged by a third party contractor who would usually charge a premium for doing that work (see Nelson v Mardesic (1998) 22 SR (WA) 42 at [46].

Consideration of complaint items 11(i) to 11(xiii)

Complaint items Complaint items 11(vii), 11(x) and 11(xii) were withdrawn by the owners during the final hearing. Accordingly, we will not consider these complaint items in this decision.
Complaint item 11(i) is a complaint the internal plastering work was defective. The remaining complaint items are in effect complaints that work is unsatisfactory as it is not complete. The respondents claim the cost of rectifying the defective or incomplete works is:
11(i)estimate for plastering, patching and painting cracks: $3,750
11(ii)estimate for supply and installation of shelving: $285.47
11(iii)actual cost of installation of mirrors in bathrooms: $152.46
11(iv)actual cost of the installation of sliding doors: $3,235.98
11(v)estimate of paint trim around timber frame: TBA
11(vi)estimate of cost of stolen bathroom items: $1,150.94
11(vii)install and connect duct to kitchen rangehood: No estimated cost given
11(viii)withdrawn
11(ix)actual cost of electrician: $2,030.60.
11(x)Withdrawn
11(xi) actual cost of meter box: $179.
11(xii) withdrawn
11(xiii)estimated cost to render garage ceiling: $4,560
The respondents maintain they are not liable for these complaint items. With respect to complaint items 11(i) to 11(ix) and 11(xi) this is because they say the owners did not raise these items as defects when the home was handed over to them, or that they were works performed by the owners for which the builder is not responsible.
With respect to complaint items 11(ix) and 11(xiii) this is because they say the owners did not raise these items as defects when the home was handed over to them, or that they were not work the builder was required to perform under either the $295,000 lump sum contract or the $118,000 lump sum contract.
In support of their contentions that the builder is only responsible for items raised as defects when the home is handed over by the builder to the owner the respondents rely on clause 11 of the $295,000 lump sum contract. This clause requires the owners and builder to agree on a list of items which require rectification at the time of the handover of the home.
The owners accept that the 'Western Australia Practical Completion Certificate' which both they and HDG signed on 3 March 2023 refers to only one item which might require rectification. This item was later rectified by HDG and so does not form part of the owners' current complaint items. Mr Vozza in his oral evidence said the owners did not state their full list of items which required rectification on this certificate as they say HDG had refused to provide them with the certificate if they did include their full list of items. The owners say that they were so desperate to move into their home that they did agree to HDG's condition that they do not include their full list of items on the certificate.
Mr Vozza's oral evidence on this point is confirmed by an email sent by Mr Ayad to Mr Vozza on 24 February 2023, in which Mr Ayad said:[67]
…
3- as discussed, you are not allow to occupy the house prior final inspection and hand in BA7 as well as complete hand out HA-DEC Group from the ownership of site and house, FYI if shire and/or police informed of early occupied they will action as trespasses case
3- HA-DEC Group will compensate you the stolen std. 60 cm cook top and shower tap as per our addenda , credit will be transferred to your bank after finalization.
…
5- HA-DEC Group happy to issue BA7 for you to occupy the house at the same day of inspection subject to complete the above items with your sign clearance of completion and no outstanding defect rectification required
Note: your sign clearance of all works expected in our completion day as you had been involved with almost every construction and finishing sequence as well as dealing with trades directly and share the supervision of your required extras
[67] Exhibit 1, pages 1549 - 1550.
Based on this email we find the owners were informed by HDG that if they did raise items requiring rectification that they would not be issued by HDG with a practical completion certificate, and that they were also informed by HDG they were not able to lawfully occupy their home until they were given this certificate. We are therefore willing to consider each of the owners building service complaint items despite clause 11 of the contract.
With respect to each of these items:
(a)Complaint item 11(i): This is a difficult item to resolve because both the owners and a plasterer engaged by Mr Forte did plastering work in the home, but it is not clear which work each of them performed. The owners say that Mr Forte's plasterer did the work on the garage walls, eaves, hallway and living area and it is this work which has now cracked. Mr Forte says the owners did this work. After considering all the evidence available to the Tribunal we are satisfied that the plastering work on the garage walls, eaves, hallway and living area has cracked and does require rectification, however, given the absence of evidence about who did what plastering work we are not able to determine whether the owners or the builder performed this work. Accordingly, we are not satisfied to the relevant standard that this work was in fact performed by Mr Forte's plasterer and so we will decline to make any order in respect of this complaint item.
(b)Complaint Item 11(ii): Mr Vozza gave oral evidence that under the 25 December 2020 contract each of the three bedrooms was to have a robe with one shelf, but that the robes were in fact installed without the shelf. The absence of this shelf was not disputed by the respondents. After considering the contract we are satisfied clause N 1.0 does require each robe to be fitted with a shelf. We are also satisfied that the robe was in fact installed by the builder without a shelf and that the estimated cost of installing the missing three sets of shelves of $285.47 is a reasonable cost.
(c)Complaint Item 11(iii): Mr Vozza gave oral evidence that under the 25 December 2020 contract each of the two bathrooms was to have a mirror, but that no mirrors were in fact installed in the bathrooms. The absence of mirrors was not disputed by the respondents. After considering the contract we are satisfied clause X 3.0 does require each bathroom to have a mirror installed. We are also satisfied that no mirrors were installed by the builder and that the estimated cost of installing the missing two mirrors of $152.46 is a reasonable cost.
(d)Complaint Item 11(iv): Mr Vozza gave oral evidence that under the 25 December 2020 contract bedrooms 2 and 3 were to have sliding doors on the robes, but that no sliding doors were in fact installed in the robes in these bedrooms. The absence of doors in the robes was not disputed by the respondents. After considering the contract we are satisfied clause O 3.0 does require these bedroom's robes to have a sliding door installed. We are also satisfied that doors were not installed by the builder and that the claimed actual cost of installing the missing two doors of $3,235.98 is a reasonable cost.
(e)Complaint Item 11(v): We note that Mr Vozza has claimed to have completed the internal painting work. Accordingly, we do not find the builder to be liable for failing to perform any part of the internal painting work and we will not make any order with respect to this complaint item.
(f)Complaint Item 11(vi): It is not in dispute that items the builder paid for and had delivered to the site were stolen from the site. A police report to that effect is in the bundle of documents provided by the parties. It is also not in dispute that the builder refused to purchase new items to replace those stolen. We are satisfied that under the 25 October 2020 lump sum contract the builder was required to have installed these items in the home and so it does not matter why they were not installed. We are also satisfied the estimated cost of these items of $1,150.94 is a reasonable cost.
(g)Complaint Item 11(vii): Mr Vozza gave oral evidence that under the 25 December 2020 lump sum contract a kitchen rangehood was to be installed but that while a rangehood was installed it was not ducted. Mr Vozza provided a photograph showing the rangehood was not ducted. The absence of ducting was not disputed by the respondents. After considering the contract we are satisfied clause Z 1.0 does require a rangehood to be fitted and we are also satisfied that a rangehood is defective if it is not ducted. However, the owners have not provided any details of the work that is required to install a duct to the rangehood nor have they provided any estimate of the cost of installing a duct to the rangehood. In the absence of any information about the work required and the cost of this work the Tribunal has relied upon the expert knowledge of Sessional Member Orr as to the work that is required to install a duct to the rangehood and the reasonable cost of this work, which the Tribunal is permitted to do under s 34(4) of the SAT Act as Sessional Member Orr possesses expert knowledge in the residential building industry. We are satisfied based on Sessional Member Orr's expert knowledge that the work required to instal a duct is to fix a metal dome to the outside of the roof cover and to instal a flexi-duct from this dome through the roof cavity to the rangehood. We are similarly satisfied that this work can be performed by a plumber and that the reasonable cost of this work is $500.
(h)Complaint Item 11(ix): This is another difficult item to resolve. All parties agree that under the 25 December 2020 lump sum contract an air conditioning system was to be installed into the home and all parties also agree that during the build the owners requested that the air conditioning system be upgraded and installed at a different location. It is also not in dispute that this variation was then partially performed by the builder and partially performed by the owners at a cost to the owners of $2,030.60. The owners contend that they gave notice of the change of location of the air conditioning system to Mr Forte at a stage in the building works when it could have been accommodated at little or no cost to the owners. Mr Forte denies this and says the work required additional electrical work which the owners should rightfully bear. After considering this item we are satisfied that the owners did request certain changes to the air conditioner system which did involve an additional cost. However, given the lack of a clear undertaking by Mr Forte that the builder was to bear the entire costs of these changes we are not satisfied that the builder did agree to bear the additional costs of relocating the air conditioner. Accordingly, we are not satisfied that this complaint item is sustained and we will not make any order with respect to this complaint item.
(i)Complaint Item 11(xi): Mr Vozza gave oral evidence that Mr Forte requested he instal a meter box at the home which he did at a cost to him of $179. This is consistent with the emails in Exhibit 1 that Mr Forte did in fact request Mr Vozza to do this. However, as discussed above, we are satisfied that the owners did, prior to entering into the 25 December 2020 contract, agree to perform some work on the home themselves. We consider this to be one of those items which the owners did so agree to perform. Accordingly, we are not satisfied that this complaint item is sustained and we will not make any order with respect to this complaint item.
(j)Complaint Item 11(xii): Mr Vozza gave oral evidence that under the 25 December 2020 lump sum contract the underside of the concrete slab which formed the roof of the under croft was to receive a skim coat but that no skim coat was applied to it. The absence of a skim coat on the underside of concrete slab which formed the roof of the under croft was not disputed by the respondents. After considering the contract we are satisfied clause L 2.0 does require the underside of the slab over the under croft to be skim coated. We consider an amount of $4,560 to be reasonable to perform this work.

For these reasons, the Tribunal is satisfied and so finds that each of the above items about which we are satisfied, is a regulated building service performed by jointly by HDG and Mr Forte and which is faulty or unsatisfactory. We are also satisfied that the appropriate remedy is to complete the work in the way described.
The Tribunal must now consider which building remedy order it should make under s 36(1) of the BSCRA Act in respect of these complaint items.
In order to resolve this issue, the Tribunal has considered the statements of her Honour Smith AJ in Gemmill Homes at [133] to [135]:
133It must be borne in mind that the statutory limits on the exercise of the discretion to make a building remedy order are only those set out in s 38. The repository of the power conferred to make an order (the Tribunal) must form an opinion that the regulated building service (that is the subject of the building service complaint) has not been carried out in a proper and proficient manner, or is faulty or unsatisfactory.
134If the requisite opinion is formed, the Tribunal is required to make a building remedy order. It then has to exercise the discretion conferred in s 36(1) to make a particular order in the form of s 36(1)(a), (b) or (c). Thus, no 'right' or requirement on a party to a complaint to elect arises.
135I do, however, agree with the point made in Nelson that the Tribunal has no power to compel an owner or require an owner or a person who has the right to control entry to a property to allow access to a site to enable an amount of work to be carried out in accordance with a building service work order. If there is evidence that such access was likely to be denied, then that would be a relevant matter of fact that the Tribunal could take into account.
The Tribunal respectfully also adopts the observations of the Tribunal in Brooks as to the differing natures of orders under s 36(1)(a) and s 36(1)(b) of the BSCRA Act, as well as those matters that the Tribunal identified as relevant to the Tribunal's exercise of the discretion conferred on it in s 36(1) of the BSCRA Act as this is explained in Hippydayze Pty Ltd and Mener Group Pty Ltd [2019] WASAT 92 (Hippydayze) at [126]:
… whether there has been an irretrievable breakdown in the relationship between the parties (Trengove and Celebration Nominees Pty Ltd [2012] WASAT 65 at [36]); whether an owner has justifiably lost confidence in the workmanship and skill of the respondent (Nelson v Mardesic (1998) 22 SR (WA) 42); whether the respondent has attempted to remedy the regulated building service previously unsuccessfully and whether the respondent has refused to perform remedial work when invited to do so[.]
When considering this issue, the Tribunal is mindful of statements made by both the owners that they did not wish the respondents to return to their home to perform any remedial works. We are also mindful that any further works that may be performed by HDG and Mr Forte will be works which they will undertake without a building permit and without a home indemnity insurance certificate. We are satisfied that in this matter that the combination of these matters there has been an 'irretrievable breakdown in the relationship between the parties' such that it none of the respondents should again attend the owners' home to perform remedial works.
Consequently, the Tribunal is satisfied that it is proper for the Tribunal to make a building remedy order against the respondents under s 36(1)(b) of the BSCRA Act, the order being that HDG and Mr Forte are to jointly and severally pay to the owners the costs of remedying complaint the complaint items in the amounts set out above. In summary, these amounts are:
11(ii)estimate for supply and installation of shelving: $285.47
11(iii)actual cost of installation of mirrors in bathrooms: $152.46
11(iv)actual cost of the installation of sliding doors: $3,235.98
11(vi)estimate of cost of stolen bathroom items: $1,150.94
11(vii)install and connect duct to kitchen rangehood: $500.00
11(xii)estimated cost to render garage ceiling: $4,560
Total:$9,884.85
We consider it appropriate that this amount is paid by HDG and Mr Forte within 28 days of the date of this order.

Costs

As we are requested to make an order in favour of the owners for their costs, we will now also make orders requiring the parties to provide us with their submissions on costs.

Orders

The Tribunal orders:
1.The name of the first respondent is amended to 'Ha-DecGroup Pty Ltd'.
2.Pursuant to s 43 and s 41(2)(d)(i) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), by no later than 15 September 2025 the first respondent and the third respondent must pay compensation to the applicants in the amount of $42,158.06, on the basis that those respondents are jointly and severally liable for that amount.
3.Pursuant to s 36(1)(b) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), by no later than 15 September 2025 the first respondent and the third respondent must pay to the applicants the costs of remedying complaint items 11(ii), 11(iii), 11(iv), 11(vi), 11(vii) and 11(xii) in the amount of $9,884.85, on the basis that those respondents are jointly and severally liable for that amount.
4.By 8 September 2025, the applicants must file (lodge) with the Tribunal and give to the respondents any outline of submissions in respect of any costs application by them in respect of these proceedings, setting out the basis for any costs order and the quantum of costs being claimed.
5.By 29 September 2025, the respondents must file (lodge) and give to the applicants any outline of submissions in opposition to the costs order sought by the applicants pursuant to Order 4.
6.Unless otherwise ordered by the Tribunal, any application for costs shall be determined by the Tribunal on the papers pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA).
7.The application is otherwise dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR E Cade, MEMBER
18 AUGUST 2025

A	B
Deposit Allowance up to 6.5%	$19,175
Pre-slab and site works	$24,000
Ground Floor Slab	$24,000
Ground Floor Plate	$51,000
Roof Cover	$50,000
Lock Up	$50,000
Finishing, Floors and Walls	$32,500
Cabinet and Fit Out	$32,500
Handover	$11,825
TOTAL	$295,000

A	B
Deposit Allowance up to 6.5%	$7,670
Pre-slab and site works	$20,000
Ground Floor Slab	$25,000
Ground Floor Plate	$25,000
Roof Cover	$30,000
Lock Up	$10,330
TOTAL	$118,000