WA BATHROOMS PTY LTD and O'HALLORAN - [2017] WASAT 131

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)

CITATION: WA BATHROOMS PTY LTD and O'HALLORAN [2017] WASAT 131

MEMBER: MS H LESLIE (MEMBER)
MR P MITTONETTE (SESSIONAL MEMBER)

HEARD: 29 MAY 2017

DELIVERED : 6 OCTOBER 2017

PUBLISHED : 9 OCTOBER 2017

FILE NO/S: CC 290 of 2017

BETWEEN: WA BATHROOMS PTY LTD
Applicant
AND
STEPHEN O'HALLORAN
First Respondent
KAREN O'HALLORAN
Second Respondent

FILE NO/S :CC 523 of 2017

BETWEEN :STEPHEN O'HALLORAN
First Applicant
KAREN O'HALLORAN
Second Applicant
AND
WA BATHROOMS PTY LTD
Respondent

FILE NO/S :CC 523 of 2017

BETWEEN :

Catchwords:

Faulty and defective workmanship - Breach of contract - Conversion of works order into payment order - Remedy costs

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 36(1)(b), s 49
State Administrative Tribunal Act 2004 (WA), s 51

Result:

The home owners claim against the builder for monetary payment for faulty workmanship and breach of contract was successful in part
The builder was ordered to pay home owner $2,590.04 in compensation and $2,145 being half the costs of obtaining an expert opinion prior to matter proceeding to Tribunal
No costs in Tribunal were allowed

Summary of Tribunal's decision:

The home owners contracted with the builder for bathroom renovations to a bathroom and an ensuite. The home owner complained that a number of aspects of the work were faulty or were completed in breach of the terms of the renovation contract. A building remedy order for rectification works (the works order) was made by the Western Australian Building Commission (the Commission). The builder failed to comply with that order. The builder sought a review of the works order in the Tribunal claiming that his work was not defective and that there was no breach of contract. In view of the failure to comply, the home owners sought that the Commission convert the works order into an order to pay. The Commission referred that matter to the Tribunal to be heard with the builders review application. Expert evidence was called by both sides both as to the works and also as to remedy costs.
The Tribunal was satisfied that the home owners had established their case to the requisite standard in part only. It was not so satisfied in relation to the balance.
The Tribunal made findings as to remedy costs. An order for payment to cover the remedy costs of the established defective items was made, as was a payment order in respect of the established contractual matter. An order was made for the builder to reimburse the home owners one half of the costs of independent expert evidence obtained (and which was paid for by the home owners) in an effort to resolved the issues prior to them going to the Tribunal.

Category: B

Representation:

CC 290 of 2017

Counsel:

Applicant:     In Person
First Respondent           :     In Person
Second Respondent      :     In Person

Solicitors:

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

CC 523 of 2017

Counsel:

First Applicant               :     In Person
Second Applicant          :     In Person
Respondent:     In Person

Solicitors:

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

CC 523 of 2017

Counsel:

Solicitors:

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

CC 290 of 2017 is an application made 17 February 2017 by WA Bathrooms Pty Ltd (the builder) for the review of a building remedy order made by the Western Australian Building Commission (the Commission) on 25 Jan 2017 (the works order).
The matter went to a Tribunal directions hearing on 7 March 2017 and, at that time, a directions order was made which identified the particular items within the works order of which the builder seeks review. They were items 1, 5, 7, 8, 10, 14, 21, 22 and 24 of the works order and the costs order contained in the works order.
It is to be noted that works order items 3, 4, 6, 9, 11, 12, 13, 15, 16, 17, 18 and 20 required no action by the builder.
It is to be further noted that the effect of this was to leave in existence (and not the subject of review) items 2, 19 and 23.
Application CC 523 of 2017 comes about as a result of the acceptance by the Tribunal of the Commission's referral on 14 March 2017, pursuant to s 51 of the State Administrative Tribunal Act2004 (WA), of an application by Mr and Mrs O'Halloran (the home owners) for the conversion of the works order into an order for the payment of money consequent upon the nonperformance of the works order by the builder.
On 17 March 2017 at a directions hearing, the Tribunal consented to the transfer of those proceedings and ordered that the two applications remain as separate proceedings but be heard and determined together and that evidence in one proceeding be evidence in the other proceeding.

The dispute

The dispute arises in relation to building services provided by the builder to the home owners, particularly a bathroom and ensuite renovation, pursuant to a contract dated 11 October 2013 (the contract). The contract is a standard form Housing Industry Association Supply and Install Contract which appears at pages 137 142 of Exhibit B and which references a separate 'Renovation Proposal'. It appears to be common ground that that reference is to a document entitled Renovation Proposal Plan updated 3 October 2013 (the Proposal) which also appears in Exhibit B.
Following a complaint to the Commission by the home owners, a works order was made requiring the builder to perform certain works by way of remedy of faulty and defective workmanship and to undertake certain other actions concerning the contract. That order is challenged now by the builder who has not performed the works order or other actions. In view of that failure to carry out the terms of the works order, the home owners seek its conversion into an order for the payment of money. The builder also sought that any order made be in the form of a payment order (see T:154; 29.05.17). It is to be noted that, although he sought this to be calculated on the basis of what it would cost him (as opposed to a third party) to do the work, the only evidence led by the builder as to the cost of remedial works was that provided by his expert, Mr Richard Machell.

The hearing

The hearing was attended by the home owners, the builder (represented by Mr Clinton Matthews), two expert witnesses, Mr Chris Sturmer, called by the home owners, and Mr Machell, called by the builder. All gave evidence, though Mrs O'Halloran only to a limited extent. Submissions were made by both sides.

Expert evidence

The Tribunal had the benefit of reports from both Mr Sturmer (on behalf of the home owners) and Mr Machell (on behalf of the builder). Mr Sturmer's report appeared at page 422 of Exhibit C. The context of the preparation of his report was that during the course of the Commission's assessment of the dispute, there was an attempt to find an independent expert that the parties could agree on to do an assessment of the situation. Mr Sturmer was asked to do that assessment. His report was the outcome. Much later in the proceedings, the builder requested an alternative expert report. He asked Mr Machell to provide what might be described as a responsive report in answer to Mr Sturmer's report. Mr Machell's report appears at page 179 of Exhibit B. In addition, Mr Machell was asked to provide a report as to the cost of any remediation steps that might be required. His report as to that cost appears at page 411 of Exhibit B and attaches the schedule of costings which appears at page 415.
In relation to costings, the home owners provided written quotations for remedial works from two contracting organisations:
1)Bathroom Renovations Perth (the BRQ) ($47,344.00); and
2)Veejay's Renovations (the VJQ) ($39,483.40).
which appear respectively at pages 52 and 57 of Exhibit B.
The former quotation provides only a global figure and not a breakdown of the items claimed and so is of little use to the Tribunal. In addition, the author of the quotation was not available to be questioned on the calculation of the quote. The Tribunal has, accordingly, attached little weight to it.
Mr Sturmer and Mr Machell gave evidence concurrently.
An analysis of the evidence in respect of the various items in dispute (items 1, 5, 7, 8, 10, 14, 21, 22 and 24 of the works order) follows sequentially.

Item 1 the vanity bench top height (bathroom and ensuite)

The home owners claim that the workmanship in this item is substandard and that there has been a contractual breach, with both claims relating to the finished height of the vanity units. It is claimed that the vanity units have been constructed at a height that is different from the 920 millimetres height that was nominated in the Proposal. The home owners claim that, by reason of this, the workmanship of the vanity units should be regarded as substandard and that there has been a contractual breach. The remediation figure claimed by reference to the VJQ is $5,580.00.
Mr Sturmer's view is that the lower height outcome is 'not acceptable' and 'unsatisfactory'. He also described it as 'faulty'. However, he clarified in his evidence that there is no deficiency in the serviceability of the vanity unit. He said it is perfectly usable and functional. Its 'unsatisfactoriness' comes only from the fact that it is not compliant with what was said by the home owners to be the terms of the contract.
Although he concedes that 920 millimetres was nominated as the vanity unit heights in the Proposal, the builder's evidence is that there was discussion with the home owners both in person and by email, including the provision of sketches, regarding an adjustment of the height both before and after actual installation; and that there was no disagreement with the vanity unit height as constructed until over a year later. His position is that the home owners agreed to the changed heights either directly or by their conduct subsequent to the execution of the contract.
The experts agree that the bench tops in the ensuite and the bathroom are constructed at respectively 876 millimetres and 894 millimetres. Mr Sturmer's evidence was that either of those two heights are heights that one might choose for a benchtop, that they 'aren’t unusual' and 'would be acceptable' and 'couldn't be regarded as faulty'. He stated that the fact that there is a disparity between the two heights is not in itself significant.
Mr Sturmer commented that a 40 42 millimetre variance from a contract specification is a 'fairly significant variation' but went on to say that 'variances aren't significant and they can occur for a multitude of reasons' and that a 42 millimetre variance should not per se be regarded as faulty.
Mr Machell's evidence is that there is nothing faulty or defective about the vanity heights. He agrees that any 'unsatisfactoriness' comes only from nonconformity with the requirements of the agreement, not because the work is faulty.
The home owners dispute a post-contract agreement to a lesser height and say that they specifically requested the 920 millimetre height because of back problems from which Mrs O'Halloran suffers. The home owners conceded that following the initial discussions which included the provision of 'rough sketches with very poor dimensions', they proceeded to enter into a contract with the builder and to allow the works to proceed.
The evidence from Mr Matthews, on behalf of the builder, is that, prior to the signing of the Proposal and the contract, as part of the Proposal documentation, the home owners were provided with the floor plan sketches that appear at pages 155 (S155) and 156 (S156) in Exhibit B and, further, that they were provided, a week or so later, with the cross-sectional sketch for the bathroom that appears at page 157 (S157). It is to be noted that this latter sketch clearly sets the vanity height measurement at 890 millimetres.
The home owners agree that they received S155 and S156 but say that it was not until 'well into the contract'. They dispute that they received S157 at all. The home owners concede that they received the sketch plans drawn by the cabinetmaker (described as 'revised sketches') which appear at pages 153 and 154 in Exhibit B (S153 and S154) prior to the signing of the Proposal and the contract. It is to be noted that the revised sketches set the vanity height measurements at 890 millimetres for both the bathroom and the ensuite.
It appears uncontested that these were sent attached to an email dated 26 September 2013 (pages 151 - 152 in Exhibit B) from the cabinetmaker. As appears on page 152 in Exhibit B, this email specifically refers to a reduction in the height of the vanity units which should, in the view of the Tribunal, have served as an additional alert to the home owners. The email requested the home owners to 'confirm or otherwise' so as to allow the matter to proceed. It is uncontested that the home owners replied the same day by email (page 150 in Exhibit B) and that their email did not mention vanity unit heights, in particular they did not comment on or demur to the nominated vanity unit height of 890 millimetres or to the fact that there had been a reduction in the height.
Notwithstanding the content of S153 and S154, on 3 October 2017, the Proposal was signed specifying 920 millimetres as the vanity unit height. There is a dearth of evidence as to exactly how that figure came to be inserted in the Proposal but there is no argument that it was.
The contract was signed the following day incorporating the Proposal. The Proposal states that 'working drawings … will be provided on signing of the contract'. It appears, and the Tribunal accepts that, a multi-page specification addenda and further set of drawings was then prepared by the cabinetmaker dated 8 October 2013 which appears at pages 159 165 in Exhibit B (S159). It is to be noted that this document (both in the drawings and in the specification) sets the vanity unit height measurement at 890 millimetres.
The home owners deny having ever received S159 though they concede that they met with the cabinetmaker to do the various selections and that they 'had multiple conversations with' the cabinetmaker. They deny 'ever seeing or signing off on' the contract addenda.
The home owners say that they have insisted from the beginning that they wanted 920 millimetre high vanity units. They say they did not change their position at any time and say that they did not ever receive the S159 documents showing a different vanity unit height and that they were entitled to expect that the vanity units would be constructed at the height specified in the Proposal give or take a 10 millimetre adjustment for tile cut aesthetics. They say that the builder failed to proof and check the cabinetmaker drawings when he received them.
The builder's case is that the home owners did receive S159 either from him or direct from the cabinetmaker (he cannot be certain which) and that it reflects their changed position, that is, from a 920 millimetre vanity unit height to an 890 millimetre height in line with his initial suggestions. He acknowledged there was no formal written variation of the contract completed as might perhaps have been expected, stating 'it was just a verbal agreement. Things are very dynamic … you just get an agreement and get on with it and get it done'. He says that the home owners' changed position was then incorporated in the plans and specifications prepared by the cabinetmaker in October 2013. He says these were sent to the home owners who did not demur from the dimensions. He says the matter was agreed and the works proceeded and the vanities were installed and that vanity unit height did not become an issue until some years later.
The builder points to two pieces of evidence as supporting this. Firstly, it appears Mr O'Halloran had prepared a list of items for discussion (the home owners' list) at a meeting that occurred with Mr Matthews on Friday 20 March 2015 (or thereabouts) to resolve outstanding matters. The home owners' list appears at pages 231 234 in Exhibit B. Against Mr O'Halloran's item descriptions, Mr Matthews has noted the outcome of the discussions at the meeting. His comments appear in red. Mr Matthew's evidence is that where items required attention, he wrote the relevant details and where items were agreed as resolved, he wrote 'all good'. As appears at page 230 in Exhibit B, the home owners' list with his comments was then emailed back to Mr O'Halloran with the request 'please have a look through the notes attached to make sure all is okay as discussed'. It is to be noted that against both vanity unit height items, on the home owners' list Mr O'Halloran has written 'was to be installed at 920 millimetres, has been set at 900 millimetres'. Against this Mr Matthews has written 'all good'. In his confirmation email back to Mr Matthews after reviewing the comments, Mr O'Halloran, following an introductory paragraph states 'These are the outstanding items to rectify', and then raises a query on an unrelated item in the list and then has stated 'Remainder looks good'. No reference is made to problematic vanity unit heights. The home owners concede the matter was not pursued by them at this time. They say that it was part of a compromise by them 'in desperation to try and get the contract finished'. It is to be noted that the email is not marked without prejudice nor are the home owners' rights in relation to this matter reserved in any way.
Secondly, the builder points to the home owners' alleged response to an independent building inspector Brendan Nicoli of Construction Plus, who was engaged by the builder to provide a report also in March of 2015 (one assumes as a tool to assist in resolving outstanding matters). That report appears at page 204 in Exhibit A. In the report, also working from the home owners' list, Mr Nicoli has written (in red) against both of the vanity unit height items 'client [referring to the O'Hallorans] has mention (sic) they are happy to leave as is'. The home owners dispute having ever said this. Mr Nicoli was not called to give evidence.

Finding

In the view of the Tribunal, the claim that the workmanship in the construction and installation of the vanity units in the ensuite and the bathroom is faulty or defective by reason of the lower constructed height must be rejected by the Tribunal. The expert evidence is clearly in line with this conclusion.
Further, the Tribunal is not persuaded, on the balance of probabilities that the lower constructed vanity unit height gives rise to a breach of contract by the builder. The home owners have not established to the satisfaction of the Tribunal that the clause of the contract pleaded was not varied prior to the performance of the works.
The Tribunal accepts that there were a number of exchanges in various forms between the builder and the home owners and the cabinetmaker regarding adjustments to the height of the vanity units in both the ensuite and the bathroom prior to and subsequent to the date of the contract and prior to the completion of the works. The Tribunal accepts that there was an oral agreement reached between Mr Matthews and Mr O'Halloran to adjust the heights downward for reasons to do with the tile cuts. The Tribunal accepts that S159 was sent to the home owners. In the view of the Tribunal, it is inherently improbable given usual commercial practice that the document (S159) was not sent and that it is inherently implausible that these home owners, who were in contact with both builder and cabinetmaker directly, and expending, as they were, considerable funds on works to be performed, would have allowed the works to go on without such documentation having been provided to them. In the view of the Tribunal, the builder was entitled to assume from the conduct of the home owners in not demurring or otherwise raising objection to the dimensions in the plans and specifications provided by the cabinetmaker, that they had agreed to the height adjustment to 890 millimetres. To the extent that the evidence of Mr Matthews regarding this matter differs from the evidence of the O'Hallorans, the Tribunal prefers the evidence of Mr Matthews, corroborated as it is at least in part by the available documentation. It is accepted that the specification of 920 millimetres in the Proposal has not been satisfactorily explained; however the Tribunal is satisfied on the basis of the preponderance of the evidence that the measurement was altered by agreement as reflected in the drawings. The home owners did not correct what they now say was an error in the drawings when they had the opportunity, and as one would have expected them to do if indeed it was an error which did not reflect the agreed height.

Even if the Tribunal were of the view that there had been such a breach, which it is not, given the evidence of the experts that the vanity units have been constructed within the range of what is considered to be an acceptable height and are otherwise functional and properly constructed, applying the principle of proportionality, the Tribunal is of the view that to require the complete dismantling of the present vanity units and their reconstruction at a slightly elevated height is disproportionate to the ill to be cured. The expert evidence is that the vanity heights are within acceptable functional range. The Tribunal has extremely limited evidence regarding Mr and Mrs O'Halloran's back problems, no evidence directly linking those difficulties with a specific requirement for a 920 millimetre height of the vanity units and no evidence that the current vanity unit height is unsuitable for them.
Further, there is no evidence that this justification for the specific vanity unit height requirement was communicated to the builder or the cabinetmaker either at the time of the contract or in the subsequent exchanges to which reference has been made, as one might reasonably have expected that it would have been, were it genuinely a matter of such concern sufficient to influence the Tribunal's assessment in the matter of proportionality and fairness.
This item of the home owners' claim is rejected.

Item 5 the provision of working drawings

The home owners complained that the contract required the builder to provide to them proper working drawings. It appears that no working drawings were provided to the home owners at the time of the signing of the contract. There was a dispute on the facts as to the quality and proper description of the sketches initially provided (S153 and S154) and the drawings that were provided subsequently (S159), their accuracy and the timing of their provision. The home owners concede that following the initial discussions which included the provision of 'rough sketches with very poor dimensions on [them]'and also described by them as 'a rough layout', they proceeded to enter into a contract with the builder and to allow the works to proceed. They say that they did so on the basis that proper working drawings would subsequently be provided to them. There are also issues regarding differences in the dimensions in the various sketches and drawings and the actual constructed works.
The home owners seek a payment order but have not filed any evidence as to what working drawings would cost. Mr Machell has provided an estimate of the drafting costs.
The experts both agree that the more detailed drawings ultimately provided to the home owners by the builder constitute what can be regarded as working drawings. The fact that errors may be contained in them does not alter their character as such. Mr O'Halloran ultimately conceded as much. [T:161; 29.05.17]
This item of the home owners claim in rejected.

Finding

In the view of the Tribunal, the home owners have failed to satisfy the Tribunal that there has been a breach of contract in this regard. In the view of the Tribunal no aspect of this complaint item is faulty workmanship.
This item of the home owners' claim is rejected.

Item 7 the bathroom exhaust fan

The home owners make two complaints about the bathroom exhaust fan. They say that the fan ventilates the bathroom inefficiently:
1)because no duct has been constructed through the cavity wall from the exhaust fan set on the internal wall to the damper set on the external wall (and that, as a result, the fan vents into the cavity as well as to the outside); and
2)because the ventilation hole through the cavity wall is partially blocked by the up-stand (T-bar) of the steel window lintel.
Mr Sturmer in his report at page 430 of the Exhibit C states 'the internal lintel is within millimetres of the fan and obstructs half its area'. The photographic evidence also at page 430 confirms this.
As to the first complaint, both experts agree that a failure to provide suitable ducting in the ventilation hole cut through the cavity wall is faulty workmanship.
As to the second complaint, Mr Machell's evidence is that it has not been established that the presence of the upstand causes the effective airflow to the outside to be below industry standards.
Mr Sturmer in his report assessed the obstruction of the airflow from the exhaust fan as works 'not completed in a proper and proficient manner and [works that] are faulty and unsatisfactory'. However in his oral evidence, he agreed that there has been no quantification of the impact of the upstand, if any upon the capacity of the fan to vent properly. His view was that it would be having 'some impact on the capacity of the fan to vent'.
In relation to the duct issue, Mr Sturmer agreed that the method suggested by Mr Machell to remediate this issue, that is, by the use of expandable foam to fill the cavity space surrounding the ventilation hole and so to create a duct, would be effective but would not be his choice of remedy. His opinion was that that there should be a fabricated duct inserted bridging both leaves of brickwork. However, it is common ground, that the insertion of a fabricated duct is prevented by the presence in part of the ventilation hole of the lintel up-stand.
There was concern that the steel lintel could not be reduced or eliminated without risk to the structural integrity of the brickwork over the window. The upstand was therefore left in place by the builder without adjustment. The builder gave evidence that he offered to obtain engineering advice at his cost about the possibility of trimming back the upstand in case it was affecting airflow, but that this offer was rejected.
Mr O'Halloran disagreed with Mr Machell's assessment of the effectiveness of a duct created by the use of expandable foam in providing a sufficient increase in pressure within the ventilation hole to allow for adequate ventilation if the up-stand remained in place. He sought to elaborate on the theory of fluid dynamics to justify this. The Tribunal was not satisfied that either Mr O'Halloran or Mr Machell had sufficient demonstrated expertise in fluid dynamics to give this evidence. Suffice to say that Mr O'Halloran appears to disagree with both experts that use of the expandable foam remedy solution to create a duct will be effective to allow for adequate ventilation.
The builder's evidence was that there were limited locations in the cavity wall where the ventilation hole could be punched through. He also gave evidence that the presence of the lintel up-stand in the location in which it was found could not have been reasonably predicted given that it is substantially further from the window (300 400 millimetres) than might have reasonably been expected (100 200 millimetres).

Finding

As to the first complaint about the bathroom exhaust fan, the Tribunal is satisfied that a failure to provide suitable ducting in the ventilation hole cut through the cavity wall is faulty workmanship.
As to the second complaint, although it is likely that the presence of the steel lintel up-stand in the ventilation hole is having some impact in terms of airflow in the vent, there is insufficient expert evidence to determine the extent of that impact or to persuade the Tribunal that:
1)the presence of the upstand renders the effective airflow substandard or is otherwise responsible for any inadequacy in the ventilation in the bathroom; or
2)that the installation of the extractor fan leaving the upstand in place is faulty or defective workmanship.
It is noted that, in view of the limited alternatives available, the builder offered to pay for specific engineering advice on the possibility of cutting away part of the up-stand to minimise any possible obstruction to airflow but that the home owners rejected this offer.

Item 8 floor levels master bedroom to ensuite

The home owners claim that the difference in levels between the floor of the master bedroom and the tile floor of the adjacent ensuite is as a result of faulty workmanship. The home owners' argument in this matter was that in preparing the new bathroom flooring, the builder should have removed the old screed rather than laying new screed on top of the old screed.
Mr Sturmer's evidence is that a 25 millimetre difference in the floor level constitutes faulty workmanship. He confirmed that his measures are from the surface of the concrete slab under the bedroom carpet to the top surface of the bathroom floor tile adjacent to the carpet edge. His evidence was that this differential was about 10 millimetres more than it should have been.
Mr Machell disputed that the work was faulty, measuring from the surface of the carpet to the lip of the tile.
Both experts agreed that an appropriate way of remediating any adjudged defect was, as recommended by Mr Machell, to lift the bedroom carpet and to apply a screed to the concrete floor in the bedroom adjacent to the entrance way into the ensuite that is sloped away from the ensuite over a distance of perhaps 600 millimetres feathered from a depth of 10 millimetres below the tile lip out and diminishing onto the slab floor of the bedroom so as to provide a suitable graduated rise in the bedroom floor to the point where it meets the edge of the bathroom tiles.
Mr Sturmer agreed that this was the most cost-effective way of remedying the problem. He agreed that any attempt to lower the bathroom floor would be a 'massive exercise' and would involve 'an awful amount of work' and that he would not consider doing that in view of the 'whole range of other problems' that that might create. Mr Machell in response to questioning indicated that without knowing more about the pipework beneath the slab, and the way the drainage was set, it was not possible to say whether the problem could be rectified by lowering the floor.
Mr O'Halloran appears to disagree with both experts that this is an appropriate remedy. The quotations that have been provided by him envisaged substantial works to lower the whole floor of the ensuite rather than to raise, in an appropriate graduated way, the section of the bedroom floor adjacent to the lip of the bathroom tiling. Again, applying the principle of proportionality, the Tribunal is of the view that to require the complete dismantling of the bathroom tile floor in order to lower it by 10 millimetres is disproportionate to the ill to be cured when an apparently satisfactory alternative remedy is otherwise available.

Finding

The Tribunal is satisfied that the difference in levels between the floor of the master bedroom and the adjacent ensuite exceeds an acceptable amount and is as a result of faulty workmanship.

Item 10 drummy cornice work

The complaint is that the relevant bathroom cornice work is 'drummy', that it is not properly fixed to the wall tiles with cornice cement and that there is a gap at the interface between the cornice and the wall tiles which permits moisture ingress and may compromise the back of the cornice.
Mr Sturmer classed the workmanship as faulty. Mr Machell described the fixing of cornices in this way on tile walls as not being uncommon but expressed the view that it is not faulty workmanship so long as the cornice is attached sufficiently.
There is no suggestion that the cornice has come adrift from the ceiling, nor that it is loose or falling down. There is no substantial gap between the cornice and the wall tile; however there is what is described as a 0.1 millimetre 'hairline' gap. There is nothing in the expert reports about moisture having so far affected the cornice.
Mr Sturmer confirmed that his concern was that 'there is a propensity for moisture to invade the underside of the cornice or get access to the paper backing of the cornice and that this will, over time, have some influence'. He agreed that using a gap sealer between the ceramic wall tile and the underside of the cornice would resolve the issue if it were carefully done. He further agreed that, provided the cornice is adequately fixed to the ceiling, 'in all probability it would be durable and effective'.
Mr Machell confirmed that if 'drumminess' is per se was a concern for the home owners', it would be possible to inject a filler through the cornice and then fill the injection holes and repaint. However, he confirmed that all cornices are 'drummy'; it simply reflects hollowness behind a cornice, not defectiveness.

Finding

The Tribunal is satisfied that the cornice work was not defective by reason of any 'drumminess' or any workmanship in fixing the cornice in place but was satisfied that a failure to seal the existing gap at the cornice/wall tile interface so as to prevent any possible moisture ingress behind the cornice was faulty and defective workmanship.

Item 14 damage (scratching/overpainting) to ensuite downlights/cost of new downlights

The Tribunal accepted the home owners' evidence as to how this matter arises. As part of the contract, a ceiling bulkhead was installed by the builder over the vanity unit in the ensuite. A new set of downlights (the first lights) were supplied and installed by the builder in a bulkhead as part of the contract. The bulkhead was painted during the course of which the lights were painted over to an extent as appears from the photographs put into evidence. An issue arose regarding suitability of the bulkhead. The first lights were removed and the bulkhead taken down. A new bulkhead was built. The project manager asked the home owners to get new lights because the first lights had too much paint on them to be reused. Mr O'Halloran's evidence is that the project manager said words to the effect 'he just couldn’t use these lights again'. His evidence is that they were painted over and scratched (though he concedes that the latter may have occurred during their removal from the bulkhead). He said that the project manager said to him and his wife that they would save time if they went and got the new lights (rather than the builder supplying the lights) which they did, purchasing lights of similar quality (the second lights). It appears that the builder then installed the second lights. The home owners' complaint is that they have not been reimbursed the $669 outlaid by them on the second lights.
The builder did not really provide any satisfactory explanation or counter to the claim made by the home owners.

Finding

In the view of the Tribunal this is a contractual issue rather than a workmanship issue. The contract included the provision of downlights. The Tribunal is satisfied on the evidence that the first lights were rendered unusable by the conduct of the builder. In any event, the Tribunal accepts that the builder requested the home owner to purchase the second lights on his behalf for installation as a substitute for the (damaged) first lights. In the view of the Tribunal, the builder is obliged to reimburse the home owners for the funds expended by them in the purchase of the second lights. The home owners' evidence (including the invoice which is in evidence, was not challenged, and shows that the second lights cost $669.
This item of the home owners' contractual claim succeeds.

Item 21 failure to vent bathroom extractor fan directly

The complaint is that the extractor fan installed by the builder in the bathroom vents bathroom steam and airflow directly into the adjacent toilet. There is no duct installed to carry the water vapour and air from the bathroom to the outside of the house in breach of industry standards. What is vented out of the bathroom goes into the toilet. The toilet is then vented by a separate exhaust fan to the outside. Both experts agree that the work is faulty because the bathroom fan is not ducted to the outside.
Both experts agreed that the construction of the bulkhead in the toilet to accommodate suitable ducting from the bathroom to the outside is the logical solution since the concrete slab above prevents ventilation upwards. They further agreed that, there being insufficient wall area on the external wall to accommodate a toilet extractor fan on that wall, removing the toilet extraction fan from the outside wall and remounting it in the bulkhead with its own duct to the outside would allow the ducts in the bulkhead to ventilate both extractor fans through the hole in the exterior wall (to be covered by a suitable vent) where the toilet extractor fan had been previously located.

Finding

The ensuite extractor fan was not installed in an appropriate way such that it ventilates the bathroom in accordance with industry standards. To that extent, the Tribunal finds that this work is faulty and defective.

Item 22 damage ensuite light fitting

It is common ground between the experts and it appears to be accepted by Mr O'Halloran that there is insufficient evidence to establish that the cause of the damage to the light fitting in the ensuite can be put down to excessive moisture. There is insufficient evidence to determine the cause of the delamination on the surface of the fitting. It is acknowledged that there could be any number of things that may have caused the delamination, moisture being just one of them.

Finding

This aspect of the home owners' claim therefore fails.

Item 24 - damage to bathroom light fitting

The home owners' complaint is the buildup of rust damage on the surface of the bathroom light fitting.
It is common ground that the relevant light fitting was supplied by the home owners and installed by the builder at their request. They made the selection of the fitting.
In relation to this fitting, Mr Machell expressed the same view as with item 22 that there is insufficient evidence to support a conclusion as to cause.
Mr Sturmer gave evidence that, in his opinion, the extent of the rust that is evident on the light fitting in the bathroom is consistent with undue moisture in the air. In his view the delamination of the light fitting in the ensuite toilet cannot be definitively attributed to moisture ingress. However, in his view, because of the development of rust in the bathroom light fitting it is possible to tie this to an undue amount of moisture in the air. That is how he explains the different conclusion.
Mr Machell confirmed his view that as the light fitting was supplied by the home owner, the development of rust in such a fitting could not be sheeted home to faulty workmanship on the part of the builder.
In relation to the rust damage to the light, Mr O'Halloran argued that the ventilation issues relating to the extractor fans that have been referred to were the cause of an unreasonable amount of moisture being present in the bathroom. Referring to some of the photographs tendered in evidence he spoke of 'the ceiling appears glossy. That's just moisture. It's water basically on the roof. We have to mop that down every night. Now I agree with what you said. You will get moisture on mirrors and things like that, granted, but this is excessive. This is not just a little bit of steam in the air from a shower. It is actual water drops falling onto the lights'.
However, there has been no expert evidence to determine that there has been an unacceptable level of steam or water vapour accumulating in the bathroom by reason of a ventilation fault. There has been no expert evaluation of the extent to which the evacuation of steam or water vapour from the ensuite bathroom directly into the ensuite toilet, as opposed to the ducting of it direct to the outside, (which is the fault alleged), has increased the presence of steam or water vapour in the bathroom at any one time to an unacceptable or substandard level such that the rusting of the fitting can be linked, on balance, to the substandard ventilation of the bathroom.

Finding

Although there may be a connection between moisture in the air and the rust, in all the circumstances, the Tribunal is not able to conclude that it is more probable than not that rust damage to the light fitting installed by the builder is caused by faulty or defective workmanship on the part of the builder. There is little information available as to whether the light fitting was one suitable for a use in a damp environment. The selection of the light fitting appears not to have been made by the builder.

This item of the home owner claim is rejected.

Additional Items 2, 19 and 23

Notwithstanding the contents of the directions order made 7 March 2017, the builder purported to conduct his case as if the abovementioned three items were intended to be the subject of review, contradicting the position apparently taken by him in the directions hearing.
It is to be noted that his expert's report does not cover these three items. The Tribunal takes the view that, in light of the direction made on 7 March 2017, these items do not properly form part of the builder's application for review and, thus, the Commission's order stands. There can be no doubt that the works ordered by the Commission have not been performed by the builder as ordered. The builder has indicated that he wishes any orders between the parties to be in the form of monetary orders. He does not wish to attend the property for any further works.
Accordingly the owner is entitled to a monetary amount to cover items 2, 19 and 23.

Additional Items 3, 16 and 17

These are three items in the works order where the Commission determined that no action was required by the builder. At the beginning of the hearing, the home owners adverted to these items as being parts of the works order which they had requested the Commission to refer to the Tribunal for review at their request.
The fact is that that referral of those matters was never made by the Commission. The consequence of that is that the Tribunal is unable to deal with those matters since they are not before it.

Outcome on liability

Upon review at the request of the builder, the items in which the home owners' claim has succeeded are items 2, 7, 8, 10, 14, 19, 21, 23.

Remedy costs

One of the quotations lodged on behalf of the home owners is a lump sum costing with no breakdown for the individual remedy items. That quotation is of little assistance to the Tribunal and has been disregarded.
The remaining quotations are from Veejay's Renovations (VR) and from Mr Machell.

Item 2

Mr Machell's estimate for this remediation work is $341.55.
The VR quote does not provide a separate item for the costing of the fan switch but includes that cost along with other works.
The Tribunal accepts Mr Machell's figure.

Item 7

Mr Machell's estimate is for this remediation work is $71.38 (being an identified part of the figure of $434.36 which included lighting repair work in the room).
The VR quote is not for comparable work and is, in the view of the Tribunal, not justified to remediate adequately.
The Tribunal accepts Mr Machell's figure.

Item 8

Mr Machell's estimate for this remediation work is $185.63.
The VR quote is not for comparable work and is, in the view of the Tribunal, not justified to remediate adequately.
The Tribunal accepts Mr Machell's figure.

Item 10

Mr Machell's estimate for the required remediation work, including a silicon bead and injection behind the cornice of filler, is $141.08.
The VR quote is, in the view of the Tribunal, not justified to remediate adequately. The Tribunal notes the agreed expert evidence that the removal and refitting of the cornice is not work needed to adequately remediate.
The Tribunal accepts Mr Machell's figure.

Item 14

The outlaid amount of $669 is accepted by the Tribunal. It is noted that it was not challenged by builder.

Item 19

Mr Machell's estimate is $63.11 based on 1.5 hours of bricklayer's time @ $65 per hour plus materials of $10 plus a 35% margin plus GST.
The VR quote is $480.00 plus GST.
The Tribunal does not accept that it would be possible for the home owners to find a suitably qualified tradesman to attend to this work for $63.11. The home owners are entitled to receive an amount equivalent to the likely realistic expenditure that they will have to incur. In the circumstances, the Tribunal accepts the VR quotation figure.

Item 21

Mr Machell's estimate for this remediation work is $534.60.
The VR quote appears to include additional works and is, in the view of the Tribunal, not justified to remediate adequately.
The Tribunal accepts Mr Machell's figure.

Item 23

Mr Machell's estimate for this remediation work is $118.80.
The VR quote appears to include additional works that are, in the view of the Tribunal, not justified to remediate adequately.
The Tribunal accepts Mr Machell's figure.

Total remedy costs

The total of the above remedy costs is $2,590.04 and should be paid by the builder to the home owners, under s 36(1)(b) of the Building Services (Complaint Resolution and Administration) Act2011 (WA).

Costs

In relation to the costs ordered by the Commission ($4,290), although referring to it in his application, the builder did not make any submission to the Tribunal as to that aspect. Given the circumstances in which Mr Sturmer was originally engaged, namely to seek an independent route to resolution in the Commission, and given the ultimate outcome of this matter in the Tribunal, in the view of the Tribunal it is reasonable that the parties share the costs of the original Sturmer report. It has been paid by the home owners. In the circumstances, it is the view of the Tribunal that the builder should reimburse one half of this cost, that is, $2,145.00, to the owners, under s 49 of the Building Services (Complaint Resolution and Administration) Act2011 (WA).
As to the costs of the Tribunal proceedings, both sides have been successful in part in the applications. Given the ultimate outcome of this matter in the Tribunal and consistent with the usual position adopted by the Tribunal, namely that it is a cost neutral jurisdiction; in the view of the Tribunal it is reasonable that the parties bear their own costs.

Orders

CC 290 of 2017
In full and final satisfaction of all matters between the parties in CC 290 of 2017 the Tribunal orders:
1.WA Bathrooms Pty Ltd to pay to Karen Georgina O'Halloran and Stephen John O'Halloran the sum of $2,590.04 under s 36(1)(b) of the Building Services (Complaint Resolution and Administration ) Act 2011 (WA) by 6 November 2017.
2.WA Bathrooms Pty Ltd to pay to Karen Georgina O'Halloran and Stephen John O'Halloran the sum of $2,145.00 pursuant to s 49 of the Building Services (Complaint Resolution and Administration ) Act 2011 (WA) by 6 November 2017.

CC 523 of 2017
In full and final satisfaction of all matters between the parties in CC 523 of 2017 the Tribunal orders:
1.WA Bathrooms Pty Ltd to pay to Karen Georgina O'Halloran and Stephen John O'Halloran the sum of $2,590.04 under s 36(1)(b) of the Building Services (Complaint Resolution and Administration ) Act 2011 (WA) by 6 November 2017.
2.WA Bathrooms Pty Ltd to pay to Karen Georgina O'Halloran and Stephen John O'Halloran the sum of $2,145.00 pursuant to s 49 of the Building Services (Complaint Resolution and Administration ) Act 2011 (WA) by 6 November 2017.

I certify that this and the preceding [120] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS H LESLIE, MEMBER