| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA) CITATION : WALLDORF and LANDSCAPE ELEMENTS PTY LTD [2013] WASAT 85 MEMBER : MS A DAVIES (SENIOR SESSIONAL MEMBER) MR R MACHELL (SESSIONAL MEMBER)
HEARD : 25 MARCH AND 10 MAY 2013 DELIVERED : 10 JUNE 2013 FILE NO/S : CC 1091 of 2012 BETWEEN : MICHELLE WALLDORF Applicant
AND
LANDSCAPE ELEMENTS PTY LTD
First Respondent
JOHN O'NEILL
ELIZABETH O'NEILL
Second Respondents
Catchwords: Building Services (Complaint Resolution and Administration) Act 2011 (WA) Whether excavation works on neighbour's property were carried out in proper and proficient manner How applicant has been adversely affected by excavation works Whether first or second respondent must pay compensation
(Page 2)
Whether chain of causation broken by rectification works undertaken by third party Legislation: Building Code of Australia
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(1), s 9(1), s 10, s 11(1), s 11(1)(d), s 36(1)(c), s 38, s 38(1), s 49, s 49(3)
Building Services (Complaint Resolution and Administration) Bill 2010 (WA)
Building Services (Complaint Resolution and Administration) Regulations 2011 (WA), reg 5
Building Services (Registration) Act 2011 (WA), s 45(2)
Local Government (Miscellaneous Provisions) Act 1960 (WA), s 374AA(4)(a), s 383(1), s 391
State Administrative Tribunal Act 2004 (WA), s 87 Result: Application partially successful
Summary of Tribunal's decision: The applicant owns 140 Bridgewater Drive, Kallaroo. The second respondents are the former owners of 20 Coorong Place, Kallaroo. Part of the back boundary of the Coorong Place property adjoins the back boundary of the applicant's property.
In around June 2009 the first respondent was engaged by the second respondents to prepare, excavate and build a retaining wall approximately 2 metres inside the back boundary of the Coorong Place property. At that time there was an asbestos dividing fence along the boundary. The ground level at the back of the Coorong Place property is more than 1 metre lower than the ground level of the back of the applicant's property.
On 23 June 2009 the first respondent's contractor was carrying out part of the excavation works around the back boundary of the Coorong Place property when the ground underneath the dividing fence collapsed, causing the dividing fence and the applicant's shed, containing pool equipment, to spill onto the Coorong Place property.
Certain rectification works, which were undertaken by the first respondent, a contractor engaged by the second respondents and RAC Insurance, were completed by the end of 2009. It appears that during this time the relationship between the applicant and the second respondents broke down completely.
(Page 3)
A building approval certificate dated 11 November 2011 was issued to the current owner of the Coorong Place property, in respect of what is described as an 'Unauthorised Structure RETAINING WALL', subject to a number of conditions, which have now been complied with.
The remedy sought by the applicant in her complaint to the Building Commission is for her pool to be stabilised and re-levelled, soil to be compacted and the pavers around the pool area to be re-done. The applicant seeks compensation of $148,500 including GST effectively to achieve that.
All parties made an application for costs.
The Tribunal found that the excavation works were not carried out by the first respondent in a proper and proficient manner within the meaning of s 38(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) in that no support to the ground at the boundary was provided during preparation and prior to excavation.
The Tribunal considered that, given the nature of the applicant's items of complaint, any compensation payable under s 36(1)(c) of the Building Services (Complaint Resolution and Administration) Act 2011 in this application could be for no more than the cost of returning the adversely affected part of the applicant's property to its original condition. This is inherent in the meaning of the word 'compensate' and the phrase 'compensate … for the failure to carry out the building service in a proper and proficient manner ...' in s 36(1)(c) of the Act.
The Tribunal found that there was subsidence in the soil and dislodgment of paving immediately adjacent to the left and right hand side of the applicant's shed. The Tribunal also found that insufficient compaction of the soil in this area was at least a contributing factor to this occurring.
The Tribunal found that when the first respondent returned the collapsed soil to the applicant's property in order to return the adversely affected part of the applicant's property to its original condition, he ought to have also compacted the ground in the immediate vicinity of the shed sufficiently to support the shed and the pool equipment.
The Tribunal considered that the causal connection between the first respondent's failure to carry out the excavation works in a proper and proficient way and the applicant's consequential damage had not been severed by the applicant's election to proceed under her impact damage insurance policy because the work undertaken by RAC Insurance had not involved soil compaction.
The Tribunal accepted evidence that the reasonable cost of removing the shed and pavers, compacting the soil in a 52m area, and re-paving that area and returning the shed was $1,762.53 including GST.
None of the other items of complaint were made out.
(Page 4)
The Tribunal therefore awarded the applicant $1,762.53 including GST against the first respondent pursuant to s 36(1)(c) of the Building Services (Complaint Resolution and Administration) Act 2011.
The Tribunal dismissed the application against the second respondents as there was no basis upon which the second respondents could be responsible under the Building Services (Complaint Resolution and Administration) Act 2011.
The Tribunal dismissed each of the parties' application for costs.
Category: B
Representation: Counsel:
Applicant : Self-represented
First Respondent : Mr P Monaco
Second Respondents : Mr A Prentice
Solicitors:
Applicant : N/A
First Respondent : GV Lawyers
Second Respondents : Mossensons
Case(s) referred to in decision(s):
Hoskins and Daniel Vinci T/As D'Vinci Contracting [2011] WASAT 188
(Page 5)
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 This is an application under the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BS(CRA) Act). 2 Mrs Walldorf (applicant) owns 140 Bridgewater Drive, Kallaroo (applicant's property). Mr O'Neill and Mrs O'Neill (second respondents) are the former owners of 20 Coorong Place, Kallaroo (Coorong Place property). Part of the back boundary of the Coorong Place property adjoins the back boundary of the applicant's property. 3 Mrs De Vries is the current owner of the Coorong Place property and was the third respondent, but the application against her was dismissed on Monday 25 March 2013. 4 In around June 2009 Landscape Elements Pty Ltd (first respondent) was engaged by the second respondents to prepare, excavate and build a retaining wall approximately 2 metres inside the back boundary of the Coorong Place property (excavation works). At that time there was an asbestos dividing fence along the boundary. The ground level at the back of the Coorong Place property is more than 1 metre lower than the ground level of the back of the applicant's property. 5 On 23 June 2009 the first respondent's contractor was carrying out part of the excavation works around the back boundary of the Coorong Place property when the ground underneath the dividing fence collapsed, causing the dividing fence and the applicant's shed, containing pool equipment, to spill onto the Coorong Place property (23 June 2009 incident). 6 The applicant was in her house when the 23 June 2009 incident occurred. She looked out of her window and saw her fence and shed falling away. She saw that the sand filter for her pool, which was brand new and still had the plastic cover around it (T:55; 25.03.13) had also fallen away and had been scooped up by the bobcat that was at the Coorong Place property. She had been given no notice of the works and was shocked and very upset to see that her fence and shed had fallen away. The photograph at page 31 of the hearing booklet (booklet), for example, shows the fence and shed having fallen away. 7 Certain rectification works, which were undertaken by the first respondent, a contractor engaged by the second respondents and (Page 6)
RAC Insurance, were completed by the end of 2009. It appears that during this time the relationship between the applicant and the second respondents broke down completely. 8 A building approval certificate dated 11 November 2011 was issued to Mrs De Vries, the current owner of the Coorong Place property, in respect of what is described as an 'Unauthorised Structure RETAINING WALL' (Exhibit C), subject to a number of conditions, which have now been complied with (T:65, 68; 25.03.13). 9 The applicant had nevertheless become worried that her property had been 'undermined' (T:18; 25.03.13); and, in particular, that the side of her pool, which had been installed in 1985 (page 230, booklet) had started to tilt towards the back boundary due to a failure to adequately backfill and compact the soil around the boundary of the adjoining properties after the 23 June 2009 incident. 10 The applicant made inquiries and took various steps, including going to lawyers and obtaining an engineer's report. This culminated in the applicant making a complaint to the Building Commission, which was received on 7 May 2012. 11 The applicant has discontinued proceedings in the Magistrate's Court relating to the 23 June 2009 incident (page 159, booklet). 12 The remedy sought by the applicant in her 7 May 2012 complaint to the Building Commission is for the pool to be stabilised and re-levelled, soil to be compacted and the pavers around the pool area to be re-done. 13 The applicant now seeks compensation of $148,500 including GST effectively to achieve that, and also costs.
The extent of the Tribunal's powers and the questions for the Tribunal 14 Subject to the Building Services (Complaint Resolution and Administration) Regulations2011 (WA) (Regulations), a person may make a complaint to the Building Commissioner, including about a regulated building service not being carried out in a proper and proficient manner, or being faulty or unsatisfactory (see s 5(1) of the BS(CRA) Act and reg 5 of the Regulations). 15 Having accepted a building service complaint, the Building Commissioner is then required to cause an investigation to be carried out and, after having regard to any report given under s 10 of the BS(CRA) Act, may refer the complaint to the Tribunal for it to deal with (Page 7)
under s 38 of the Act (s 3, s 9(1) and s 11(1) of the Act). This matter was validly transferred to this Tribunal pursuant to s 11(1)(d) of the Act. 16 The Tribunal may then make a building remedy order if it is satisfied that the regulated building service has not been carried out in a proper or proficient manner or is faulty or satisfactory (s 38(1) of the BS(CRA) Act). 17 A building remedy order is defined in s 36(1) of the BS(CRA) Act and includes an order that a person who carried out a regulated building service pay to an aggrieved person a sum of money specified in the order to compensate the aggrieved person for the failure to carry out the building service in a proper and proficient manner or for faulty and unsatisfactory building work. 18 The Explanatory Memorandum to the Building Services (Complaint Resolution and Administration) Bill 2010 (WA) explains at page 10 that s 5(1) of the Act: 19 In the circumstances of this application, it is clear that the applicant has been adversely affected by the excavation works on the neighbouring Coorong Place property and the principal questions for the Tribunal are: 1) whether the regulated building service was not carried out in a 'proper or proficient manner' or is 'faulty or unsatisfactory' within the meaning of s 38(1) of the BS(CRA) Act; 2) how the applicant has been adversely affected by the excavation works; and 3) whether the first respondent and/or the second respondents must pay compensation to enable the applicant to have her pool stabilised and re-levelled, soil compacted and the pavers around the pool area to be redone. (Page 8)
The hearing and findings 20 The hearing took place over two days. Inspector Martelli, a practising registered builder who consults for the Building Commission, attended the hearing and gave oral evidence, together with Mr Colin Jenner, a geotechnical engineer from ATC Williams Pty Ltd (ATC), and Mr Vic Etherington who has a diploma in building surveying and is the manager of compliance and regulatory services at the City of Joondalup. 21 The evidence of Inspector Martelli, Mr Jenner and Mr Etherington was heard concurrently. 22 The applicant called: a) Mr Jared Jacobs, who has lived next door to the applicant since 2006 (page 141, booklet); b) Mr Glenn Hutchin, who has provided pool maintenance services at the applicant's property since 2006 (page 86, booklet); c) Mr Glenn Fonseca, who provided the principal quote for the applicant (page 237, booklet); and d) Mr Chris Siegwart who was initially described by the applicant as 'a family friend and maintenance person for [her] property' (T:10; 25.03.13) and was therefore not included in the concurrent evidence session. However, when he came to give evidence, he said he had qualified as a mechanical engineer in Switzerland, had done a further two years of study and was now working on developing a battery for renewable energy. 23 The applicant also gave evidence. 24 The first respondent and the second respondents gave evidence. 25 Having had the benefit of hearing both sides' submissions and the evidence, the Tribunal sets out its findings.
Were the excavation works carried out in a proper and proficient manner? 26 In Inspector Martelli's report dated 21 August 2012 the Inspector measured the distance from the pool's natural water level to the top of the pool's edge surround in six separate locations. The distance measured (Page 9)
varied from 45 millimetres to 70 millimetres, with the lowest level in closest proximity to the rear boundary shed. 27 Inspector Martelli also measured the following and found that: a) the distance from the rear boundary to the closest edge of the pool surround was approximately 2440 millimetres; b) the distance from the face of the limestone retaining wall to the rear boundary was approximately 2430 millimetres; and c) the height of the limestone retaining wall from finished ground level was approximately 1790 millimetres. 28 The base block was approximately half buried below ground level. The Inspector concluded in his report that the excavation depth of approximately 2 metres was approximately 3.34 metres in distance from the pool's edge. 29 In his report Inspector Martelli also referred to s 3.1.1.1 'Earthworks' and s 3.1.1.2 'Excavation', affecting an adjoining property, in Volume 2 of the current version of the Building Code of Australia. 30 While these provisions are noteworthy in that they address excavations affecting adjoining property, the Tribunal concludes that they are not applicable in the circumstances of this application as the base of the applicant's pool does not sit upon or near the surface of the soil. This appears to be an assumption in the figures provided. The applicant's below-ground, fibreglass pool sits below the surface of the soil except for the upper lip. Therefore, the distances in the table at figure 3.1.1.1 of the Building Code of Australia do not reliably set out what is/is not a safe distance of excavation from the applicant's pool. 31 ATC, in its report to the applicant dated 18 July 2011 (pages 164 171, booklet), did not refer to excavation distances in advising of slope stability. Instead, its investigations and analysis indicated that excavation along the northwestern boundary (being inside the southwestern boundary of the Coorong Place property) created a condition whereby slope failure would occur because 'there was no support to the sand at the boundary during excavation' (page 151, booklet). (Page 10)
32 Regarding the evidence of ATC, the author of the report dated 18 July 2011 did not attend the hearing. In his place another geotechnical engineer from ATC, Mr Jenner, attended to give evidence. This effectively enabled the report to be tested sufficiently in the circumstances and the Tribunal accepts the report by Mr Clement Yung of ATC. The Tribunal also accepts Mr Jenner as a credible expert witness, even though, at times, it appeared that Mr Jenner was advocating the applicant's position rather than assisting the Tribunal (T:5051; 25.03.13). 33 The Tribunal considers that the analysis in the ATC report reflects the correct approach. 34 The Tribunal finds that the excavation works were not carried out in a proper and proficient manner within the meaning of s 38(1) of the BS(CRA) Act in that no support to the ground at the boundary was provided during preparation and prior to excavation. This conclusion is based on the ATC report and also on the nature of the omission, which itself indicates poor workmanship in that it is obvious that if an excavation is undertaken against a boundary where the land on the adjoining side is higher, there will be a risk of collapse unless support to the ground at the boundary is provided. 35 The applicant referred to s 391 of the Local Government (Miscellaneous Provisions) Act 1960 (WA) (LGMP Act) which was in place at the time of the incident. It is unclear whether this section is applicable because the Division applied only where lands of different owners adjoin and are 'unbuilt on at the line of junction' (s 383(1) of the LGMP Act). The Building Approval Certificate (Exhibit C) refers to, inter alia, s 374AA(4)(a) of the LGMP Act which was clearly applicable, albeit only in respect of enabling retrospective approval to be obtained. However, if s 391 of the LGMP Act is applicable, or if there is an alternative applicable provision which was contravened, this would lend support to the conclusion that the excavation work was not carried out in a proper and proficient manner within the meaning of s 38(1) of the BS(CRA) Act.
How has the applicant been adversely affected by the excavation works? 36 Complaint item 1.1: pool has subsided and tilted 37 In his report Inspector Martelli stated that the distance from the pool's natural water level to the top of the pool's edge, which was measured by him in six separate locations, varied between 45 to 70 millimetres. (Page 11)
38 In oral evidence the Inspector said that the 45 millimetres measured from the pool's natural water level to the top of the pool's edge was in closest proximity to the shed, which is on the boundary where the collapse had occurred. The Inspector also said that the next lowest measurement was to the central part of the pool, adjacent to the raised garden bed (T:32; 25.03.13); that is, on the opposite side of the pool to the 45 millimetre measurement. When asked by the Tribunal what these variations in measurement meant, the Inspector said that they meant that there is no consistent fall in one area of the pool (T:33; 25.03.13). 39 The first respondent also provided measurements of the pool (Exhibit B). However, when Inspector Martelli was asked whether his measurements were consistent with the measurements taken by the first respondent, the Inspector answered 'no' (T:33; 25.03.13). The Tribunal accepts the Inspector's opinion that they are not consistent with his measurements and observations. The Tribunal appreciates that the measurements taken by the first respondent were taken from a +0.00 datum point at the southeastern corner of the pool and measure the height of the top of the pool lip from that point (T:30; 25.03.13). However, a comparison of the two figures given by the Inspector by way of example during oral evidence shows that they are not entirely consistent and the first respondent cannot be regarded as an independent expert. The Tribunal therefore prefers the Inspector's measurements and observations to that of the first respondent's regarding the fall of the pool. 40 Mr Jacobs gave evidence that he noticed in the evening after the 23 June 2009 incident, when he was watering his garden, that the pool had moved. He said that before the incident the pool had been in a level state (T:128; 25.05.13). He said that this change in pool level was obvious to the eye (T:134; 25.05.13). Mr Jacobs was crossexamined and maintained his position. 41 Mr Hitchin gave similar evidence; namely, that prior to the excavation works the pool was sound, but that after the excavation works it was possible to see an incline of the pool towards the shed. He said he also thought the skimmer box had buckled. Mr Hitchin was crossexamined and maintained his position. 42 The Tribunal does not accept the evidence of Mr Jacobs or Mr Hitchin on the issue of whether the pool has moved since the 23 June 2009 incident. The Tribunal considers that their evidence was tainted by their wish to support the applicant in achieving a successful outcome in the application before the Tribunal. The testing of their (Page 12)
evidence demonstrated that their conclusions about the pool having tilted or moved since the excavations were, at best, unsubstantiated statements of belief. Neither witness had any objective basis upon which to base their conclusions that there had been a change in the pool's position. It can be open to the Tribunal to accept an observation of a witness but the alleged movement of the applicant's pool is a maximum of 4 centimetres (see Mr Siegwart's evidence below) and, together with these witness' relationship to the applicant and the fact that there was no basis other than memory to establish the original position of the pool, this is simply too fine a variation to be able to rely on such visual evidence to establish that it is more likely than not that since the excavation on 23 June 2009 the pool has tilted or moved towards the Coorong Place property. 43 Mr Siegwart gave evidence that, after the 23 June 2009 incident, he had noticed a dropping in the level of the pool on the side towards the Coorong Place property. He said it was possible to see with one's eyes that it had dropped 3 to 4 centimetres. He had undertaken calculations based on the lean of the fence. Mr Siegwart was crossexamined. 44 Mr Siegwart's calculations were not provided to the parties in advance and it was therefore difficult to test them. 45 Mr Siegwart conceded that it was 'not impossible' that the pool was like that before the excavation. He also thought that it was possible that, because of the herringbonestyle paving, the soil underneath could have been washed away without affecting the paving. He referred to another incident where he had stepped on some pavers which had then collapsed. 46 The Tribunal accepts the evidence of Mr Siegwart. While he also wished to support the applicant, he appeared to have attempted to assess the situation objectively, starting from when the applicant rang him immediately upon the 23 June 2009 incident occurring. However, Mr Siegwart's calculations supporting his observations amount to a mere theory (and the Tribunal acknowledges that Mr Siegwart presented it as no more than a theory). This theory conflicts with the opinion of Mr Jenner from ATC that the foundations underneath the pool should not have moved as a consequence of the excavation works and the collapse of the ground underneath the dividing fence (T:38; 25.03.13), which evidence the Tribunal has assessed as set out below. As Mr Jenner is an expert witness, the Tribunal prefers Mr Jenner's evidence on this issue. 47 Regarding Mr Siegwart's concern about a possibility that the sand immediately beneath the herringbonestyle paving could have moved (Page 13)
without the paving yet moving, it appears from the photographs and the evidence before the Tribunal that numerous people have walked around the pool area since the 23 June 2009 incident, and any area in which this had occurred would have, as occurred to Mr Siegwart in another incident, caved in or subsided immediately when stepped on. 48 The ATC report states at page 1 that, at the time fieldwork was carried out, the north-western side of the pool was lower than the southeastern side. The ATC report also states at page 2: The very loose backfill is the likely cause of ongoing subsidence leading to voids observed beneath the new shed. (Tribunal's emphasis) The report concludes: To stabilise the site to prevent ongoing settlement/subsidence of the ground and swimming pool we recommend grout injection along the boundary line parallel to the retaining wall … . After stabilisation of the site boundary, remedial work can be undertaken to recompact the soil beneath the pool deck and shed areas to their original condition. (page 166, booklet) 49 While the applicant chose not to have grout injection on her side of the property, there has been grout injection on the side of the Coorong Place property (T:57; 25.03.13). The City of Joondalup is satisfied the applicant's property has now been stabilised (T:68, 25.03.13; see also Exhibit C). 50 Mr Jenner clarified that he did not think that the whole of the pool could have tilted as a consequence of the excavation because 'the foundation soils shouldn't have moved underneath the pool' (T:38; 25.03.13). What he thought was possible was that the northeastern side of the pool could have tilted in the sense of flexing or buckling when some of the backfill support moved. However he 'couldn't be totally sure' (T:38 and 39; 25.03.13). Mr Jenner did not attend the applicant's property at any time. 51 The Tribunal does not accord any weight to the other reports in the booklet as witnesses were not available to crossexamine. 52 The Tribunal finds that the north-western side of the pool has not sunk 'as a consequence' of the excavation works and the 23 June 2009 incident. 53 The Tribunal also finds that it is more likely than not that the northwestern side of the pool has not moved, flexed or buckled (Page 14)
'as a consequence' of the excavation works and the 23 June 2009 incident. While Mr Jenner thought this a possibility, his opinion was expressed only in terms of a possibility, not a probability. Further, ATC did not take detailed measurements of the whole of the pool, and when the Inspector's evidence regarding the variations in water levels around the whole of the pool is taken into account, together with the age of the pool and the fact that there is no obvious movement in pavers except close to the boundary of the applicant's property and the Coorong Place property (noting that the issue of pavers has been assessed by the Tribunal as set out below), it is more likely than not that there has been no movement in the pool 'as a consequence' of the excavation works and the 23 June 2009 incident. 54 That is not to say that the pool has not moved over the years and is now completely level. There may well have been some minor flexing at various locations around the pool over time, including the central part of the pool, which is adjacent to the raised garden bed; that is, on the opposite of the pool to the Coorong Place property boundary. As Inspector Martelli measured, there are variations in the distance from the pool's natural water level to the top of the pool's edge around the pool. If one focuses only on the part of the pool closest to the Coorong Place property boundary, this could appear as one side being lower than the other side. 55 Further, while there is some evidence of minor subsidence of pavers around the perimeter of the pool, this subsidence is not consistent with movement of the pool, but may be attributable to settlement of fill in the area immediately behind the pool wall, likely as a result of spilt or splashed water from the pool itself. The applicant gave evidence that her pool has not been swum in for the last five years (T:80; 25.03.13) to counter the Inspector's statement that settlement of paving surrounding the pool edge of 20 millimetres on average was likely due to spillage from the usage of the pool over the years. The Tribunal accepts the applicant's evidence. However, the pool is over 20 years old and was swum in prior to that. 56 Therefore, the applicant has not established that her pool has sunk, tilted or otherwise been damaged by the excavation works.
Complaint item 1.2: pool pipework cracked and damaged 57 This complaint item was dismissed by consent upon the application heard before Member Bertus De Villiers on 28 September 2012 (page 191, booklet). (Page 15)
Complaint item 1.3: pool filter and pump system 58 In Inspector Martelli's report, he stated that the applicant advised him that the pool filter and pump system were damaged during the excavation works and that RAC Insurance has since completed remedial works to the affected pool equipment. 59 Inspector Martelli observed some minor damage to the sand filter's casing which has not affected the operation of the filter to date. 60 Inspector Martelli also stated that the applicant advised him that the warranty of the filter is now void due to the damaged casing and is concerned as to the filter's longevity. 61 Inspector Martelli concluded that he cannot be conclusive as to when the minor damage to the filter occurred or if the filter has been compromised as a result. 62 In the Scott Schedule prepared by the parties the applicant stated: A temporary filter system was initially installed to keep the pool water clear. Minor repairs have been carried out to the filter system, however, the damage is still visible. This damage impacts on the resale of the property … . (page 199, booklet) 63 During the hearing the applicant clarified that RAC Insurance did not replace it because the filter still works, and that she has lost her 10 year warranty because, she asserted, once the equipment has been in an accident, the warranty is not valid (T:55; 23.03.13). 64 In its letter to the applicant dated 1 October 2010, RAC Insurance stated that: … All repairs to the pool equipment together with the supply and installation of new pool shed were completed once the new boundary fence had been installed by your neighbour[.] (page 89, booklet) 65 Mr Hitchin said that scratch marks would not affect the commercial value of the filter system but that in the circumstances the problem was the loss of warranty. 66 The applicant did not provide the warranty documentation to the Tribunal, nor indeed any basis upon which to value the warranty, such as, for example, the cost of buying a new warranty or the likely cost of covered repairs over 10 years. (Page 16)
67 The Tribunal finds that the applicant has not established that the resale of the equipment has been adversely affected, nor that any warranty has been voided by the 23 June 2009 incident. 68 Further, given that the way the pool equipment looks has no value in itself, the Tribunal does not regard the minor scratching as damage, which the respondents could possibly be required to compensate the applicant for under the BS(CRA) Act.
Complaint item 1.4: poll access hand rails
Complaint item 2.1: fence leaning over 69 These complaint items were dismissed by consent upon the application heard before Member Bertus De Villiers on 28 September 2012 (page 191, booklet).
Complaint item 2.3: fence height was 2.4 metres now 1.8 metres 70 This complaint item was withdrawn with leave granted on 4 February 2013 (page 236, booklet).
Complaint item 2.2: compaction below fence is required
Complaint item 3.1: paving collapse, and movement in paving causing paving to be dislodged
Complaint item 4.1: fill material has not been compacted or stabilised and ongoing movement in the soil is continuing 71 At the heart of these complaint items is that, when the first respondent returned and levelled the collapsed ground underneath the dividing fence and built the retaining wall (see, for example, the photograph at page 33 of the booklet), he did not also sufficiently compact the soil on the applicant's side of the property. Also at the heart of these complaints is that the original asbestos dividing fence sat into the ground, whereas the new Colorbond fence sits above the ground. 72 In his report, Inspector Martelli stated that Complaint item 2.2 relates to the gap approximately 100 millimetres between ground level and the base of the rear boundary Colorbond fence which has been installed stepped to the gentle ground slope. The Inspector stated that the applicant advised him that the previous boundary fence was buried in the ground and no gaps were visible. The applicant is now concerned that her dog may escape, as the gap has continued to widen. However, (Page 17)
Complaint item 2.2 is entitled 'compaction below fence is required', and at the hearing the applicant clarified that in relation to this item her concern is both the gaps underneath the Colorbond fence and that there is 'no compaction on my side of the property' (T:57; 25.03.13). 73 Complaint item 3.1 relates to settlement to the pavers surrounding the pool in multiple locations including adjacent the shed, adjacent the pool edge and adjacent the garden bed. 74 Similarly, Complaint item 4.4 relates to the applicant's concern that the backfill to the adjoining owner's retaining wall was not adequately compacted or stabilised such that ongoing movement in the soil is continuing. 75 As the applicant said during the hearing: … I'm claiming that the pavers are becoming dislodged due to soil movement and the looseness of the soil due to no compaction. Even though in the centre of the pavers it may appear that they're still stable, I can tell that I have movement and that certainly the ones at the edges went first and, as time goes on, it becomes worse because, as I mentioned before, I have ongoing damages. It's not something that's happened and the damage was done. The damage continues and, as Mr Etherington pointed out, it will continue until compaction on my side of the boundary is put in. (T:73; 25.03.13) 76 Mr Etherington did not say at any time during the hearing that damage will continue until compaction on the applicant's property is done. During the hearing he in fact said that the applicant's property had now been stabilised by the retaining wall and the grout injection behind it, which is why the City of Joondalup had been willing to retrospectively approve the retaining wall (T:68; 25.03.13; see also Exhibit C). 77 In the City of Joondalup letter to the applicant dated 18 February 2011, it had been recommended that the ground/soil from behind the retaining wall be removed from the rear of the applicant's property to a depth of the retaining wall and replaced with clear fill, which should then be compacted (page 93, booklet). Mr Etherington said that this recommendation was based on engineering advice at that time (T:97; 25.03.13). Mr Etherington also explained that this original recommendation was to pull the fence out, replace all the earth and compact it, 'thinking that we would have two neighbours that would jointly do it together. … That didn't happen so at the end of the day it became a matter for grout injection' (T:65; 25.03.13). (Page 18)
78 This is consistent with the ATC report, which in fact recommended grout injection along the boundary line parallel to the retaining wall (page 166, booklet). 79 Grout injection was offered to the applicant but she declined due to concerns regarding interference with her piping, which may be based on a misconception that grouting would be injected up to the surface or restrict access to below-ground pipework (T:107; 25.03.13). 80 However, Mr Etherington does also still think, from the tests he undertook in 2011 under the shed area, that the shed should be removed and the soil pulled out and compacted in that particular location (T:119; 25.03.13). 81 This is consistent with Inspector Martelli's opinion as expressed in his report in relation to these items of complaint and also clarified in his oral evidence (T:8688; 25.03.13). In his report the Inspector observed settlement to the pavers surrounding the pool in multiple locations but ultimately was of the opinion that it was only the dislodgement and settlement of pavers on either side of the outside of the shed that could be attributed to insufficient compaction during backfill. 82 The Tribunal considers that the only photographic evidence of movement in the applicant's pavers having occurred since the 23 June 2009 incident is: a) around the edge of the paving towards the boundary where the fence collapsed, which has been rectified by RAC Insurance and remains in place; and b) the paving to the immediate left and right of the shed, which was also re-paved by RAC Insurance (T:24, 92; 25.03.13) but appears to have subsequently subsided (see, in particular, the photographs in Exhibit B). 83 This is not to say that there has been no other minor movement in the pavers over the years. 84 The Tribunal finds that there is subsidence in the soil and dislodgement of paving immediately adjacent to the left and right hand side of the applicant's shed which has occurred since the 23 June 2009 incident. (Page 19)
85 The ATC report concludes from tests taken that: PSP1, PSP2 and PSP3 indicate that the sand along the boundary fence is very loose and uncompacted to depths of 1.65m, .75 and .45m respectively. PSP5 and PSP6 indicate that the retaining wall backfill comprises very loose, uncompacted sand fill to depths of 1.05m and 2.7m. PSP6 also indicates that the natural sand below the retaining wall footing level is very loose to a depth of about 2.7m. (page 151, booklet) 86 It is important to appreciate when considering these results that only PSP1 is from the area on the applicant's property which collapsed. In particular, PSP2 and PSP3 are from areas on the applicant's property which did not collapse. The ATC report does not make this clear. 87 It is also important to appreciate that, except with respect to the area where a shed previously sat and the current shed now sits, the area on the applicant's property which collapsed was a garden bed. 88 While the ATC report gives figures for typical minimum values of sand density for new construction in sand in Perth, and there was various evidence as to what the compaction should be, any compensation payable under s 36(1)(c) of the BS(CRA) Act in this application can be no more than the cost of returning the adversely affected part of the applicant's property to its original condition. This is inherent in the meaning of the word 'compensate' and the phrase 'compensate … for the failure to carry out the building service in a proper and proficient manner …' in s 36(1)(c) of the BS(CRA) Act. 89 PSP1 indicates that the compaction of the soil in the area on the applicant's property that collapsed is now below that of other parts of the garden bed at PSP2 and PSP3 (page 150, booklet). 90 It was on the soil immediately next to PSP1 that the applicant's previous shed sat in a stable condition. 91 The Tribunal finds that it is more likely than not that prior to the 23 June 2009 incident, the ground underneath the applicant's former shed was compacted to a greater extent than it is now. 92 The Tribunal also finds that insufficient compaction of the soil in this area of the applicant's shed is at least a contributing factor to subsidence in the soil and dislodgement of paving immediately adjacent to the left and right hand side of the applicant's shed. (Page 20)
93 Regarding the City of Joondalup's original recommendation that 'clean fill' be used (page 93, booklet), Mr Etherington explained that the reason the City would recommend 'clean fill' is: … obviously because there's no plant material in it. You don't just grab something off your neighbour's lot and just dump it with timers or whatever in that so that's why we prefer clean fill. (T:96; 25.03.13) 94 Mr Etherington went on to say that not having clean fill 'doesn't really matter now' (T:98; 25.03.13) because the wall has been grout injected; that is, the issue of stability has now been addressed in this way. 95 It appears that Mr Etherington had not conducted any sampling of the soil to conclude that it contained a level of organic material that would make it unacceptable. Furthermore, in terms of the current amount of organic material in the soil in the area of the collapse, Mr Jenner said, 'there is no evidence to suggest that it's wrong, it does not comply' (T:98; 25.03.13; see also T:9697; 25.03.13). 96 The photographic evidence indicates that the soil returned to the applicant's property did not contain timbers, any obvious large pieces of plant material or was otherwise unsuitable (see, for example, page 39, booklet). 97 The Tribunal finds that returning the area immediately adjacent to the left and right hand side of the applicant's shed to its original condition does not involve replacing that soil with new yellow sand because new yellow sand was not there originally and there is no evidence to suggest that the amount of plant material within the soil is different in any material way to what it originally was. 98 Regarding additional edging along the dividing fence, despite the recommendation referred to in the RAC Insurance letter (page 89, booklet) and the Airey Taylor report around March 2010 (page 11, booklet), the applicant has not established any adverse effect which would justify this. The ground is not, as the applicant has feared, continuing to fall towards the Coorong Place property and, even though the asbestos dividing fence had been installed into the ground and the Colorbond fence sits slightly above the ground, there is no evidence of soil erosion under the new Colorbond fence. The applicant has therefore not established that there is any continuing adverse affect in this respect, and the part of Complaint item 2.2 that the soil underneath the fence is not compacted has not been made out. (Page 21)
99 In regard to the Colorbond fence, Inspector Martelli said that the gaps had occurred because of the gentle slope of the ground. He did not see any evidence of subsidence in this area (T:64; 25.03.13). 100 Regarding this problem, the applicant said: Because they broke the fence that was there, existing fence, it was up to them to put another one up so I really didn't have much to do with it. They just went ahead and put a Colorbond fence and immediately I was not happy about it because I saw those gaps and apart from being unsightly they're dangerous because of the fact that an animal can get through and the fact that I have soil subsiding and I feel that if there was some kind of something going into the ground, it would perhaps stop it from subsiding; maybe a retaining wall or something. (T:58; 25.03.13) 101 Mr O'Neill gave evidence that he engaged a contractor called 'FenceItUp' to install the new Colorbond fence. The Tribunal accepts Mr O'Neill as a credible witness. 102 During her evidence, the applicant confirmed that she had not paid any amount of money towards the fence. 103 For the reasons explained in further detail below in the section entitled 'Whether the first and/or second respondents must pay compensation', whether the fence was constructed in a proper and proficient way or is faulty or unsatisfactory within the meaning of s 38(1) of the BS(CRA) Act is not a question properly before this Tribunal in this application. The Tribunal therefore declines to reach a finding in relation to the construction of the new Colorbond fence.
Complaint item 5.1: brick wall has collapsed and cracked 104 This complaint item was dismissed by consent upon the application heard before Member Bertus De Villiers on 28 September 2012 (page 191, booklet).
Complaint item 5.2: Colorbond fence joints are being pulled apart due to collapse in soils 105 This complaint item was dismissed by consent upon the application heard before Member Bertus De Villiers on 28 September 2012 (page 191, booklet). (Page 22)
Whether the first and/or second respondents must pay compensation 106 The applicant appears to believe that, because she is the innocent party in relation to the 23 June 2009 incident, which has adversely affected her in certain ways, she is entitled to everything she is now asking for. During crossexamination, the applicant said she liked her property the way it was, including the old fence which used to be hidden by her garden. She does not like the way the pool equipment in her shed has been set up. She does not believe it has been done properly. She would like her property back the way it was before. 107 While it is always regrettable when an accident occurs, the law is not able to deliver to an innocent party their property as it was prior to an accident. The law provides certain, specified recourse. In this application, that recourse is in the limited terms of the BS(CRA) Act. 108 Furthermore, one of the complexities in this application is that, instead of simply seeking recourse from the first and second respondents, the applicant elected to recover under her 'impacts damage' policy (page 89, booklet) with RAC Insurance and allowed the second respondents to replace the fence without any involvement in it. The applicant said during her evidence that Mr O'Neill had initially told her that he would 'fix everything' (T:58; 25.03.13) and 'strongly objected' to her going to her insurer, although she did not know why. 109 In respect to the new Colorbond fence, the damage caused to the asbestos dividing fence as a consequence of the 23 June 2009 incident has been adequately rectified by the installation of the new Colorbond fence. It is not the same but, for the purposes of a dividing fence, it is an adequate replacement. Therefore, there is no adverse affect (or loss) in relation to the fence itself which continues for which the applicant could possibly be compensated for under s 36(1)(c) of the BS(CRA) Act. 110 What became clear at the hearing is that all aspects of the complaints relating to the new fence (other than compaction below it) relate to the workmanship of the contractor, 'Fence-It-Up', who installed the new fence; for example, the remaining gaps underneath the fence. 111 'Fence-It-Up' is not a party to these proceedings (most likely because the applicant did not know who installed the Colorbond fence until the second day of the hearing). It is therefore not possible for the Tribunal to make a building remedy order against 'Fence-It-Up' in this application. (Page 23)
112 Furthermore, it is clear from the terms of s 38(1) of the BS(CRA) Act that, for the Tribunal to have the power to make a building remedy order against a person, the work concerned must be a registered building service. A 'registered building service' is defined in s 3 of the BS(CRA) Act. Mr O'Neill gave evidence that he did not obtain an ownerbuilder approval under s 45(2) of the Building Services (Registration) Act 2011 (WA) to undertake any of the renovation works to the Coorong Place property. The Tribunal accepts this evidence. There is therefore no basis upon which the second respondents could be legally responsible under the BS(CRA) Act for any established poor workmanship by 'Fence-It-Up'. 113 There is also therefore no basis upon which the second respondents could be legally responsible under the BS(CRA) Act for poor workmanship by the first respondent. 114 The application against the second respondents ought therefore be dismissed. 115 In respect to the subsidence around the applicant's shed, the applicant has established an adverse effect and that, when returning the soil to the applicant's property after the collapse, the first respondent did not return her property to its original condition in that he did not compact the soil around the applicant's shed sufficiently to support the shed and its contents. 116 The Tribunal considers that the causal connection between the first respondent's failure to carry out the excavation works in a proper and proficient manner and the applicant's consequential damage (in respect of the lack of soil compaction below the pool shed) has not been severed because the applicant's election to proceed under her impact damage policy because RAC Insurance has not addressed soil compaction. The compaction around the pool shed is something the first respondent ought to have done when the collapsed soil was returned to the applicant's property. The first respondent knew that a shed had been located in that location as he had seen where the old shed had fallen from. It may be that RAC Insurance should not have returned the applicant's pavers without checking that the soil had been compacted to its original condition sufficiently to support the new shed. However, if the first respondent had done this, RAC Insurance would not have had to do so. 117 The excavation works constitute a 'regulated building service' within the meaning of s 3 the BS(CRA) Act in that such works amount to home (Page 24)
building work that is carried out by a person for another person under another contract or arrangement for gain or reward. The Tribunal is satisfied that it may order a building remedy order against the first respondent. 118 Mr Fonseca provided the principal quote for the applicant to enable her to have her pool stabilised and re-levelled, soil to be compacted and the pavers around the pool area to be redone (page 237, booklet). During crossexamination it became clear that there was no objective basis for any aspect of his quote. Mr Fonseca admitted that he had never undertaken a project such as this and that the amounts were in the nature of 'guestimates'. The Tribunal is unable to utilise any aspect of Mr Fonseca's quote as a basis for calculating the appropriate compensation payable to the applicant to redress the subsidence around the shed because the quote lacks adequate foundation in fact and is therefore completely unreliable. 119 On the second day of the hearing, the first respondent tendered a quotation totalling $1,762.53 for pool shed works. The Tribunal admitted this as Exhibit F. 120 The first respondent gave evidence, was cross-examined and was also asked questions by the Tribunal including in relation to the quote. 121 The Tribunal accepts the first respondent as a credible witness. 122 The quote is based on excavating 52m by hand to a depth of 600 millimetres and reinstating paving to that area. From photographs on pages 28, 36, 183 and 185 of the booklet and with a reference height of the fence at approximately 1.8 metres, a brick paver sized at 110 by 220 millimetres, and concrete slabs at either 600 by 300 millimetres, or 600 by 600 millimetres, it is apparent that the length and width of the pool shed is in the range of 2 by 2 metres. 123 The Tribunal also accepts the first respondent's quote as a reasonable basis upon which to estimate the cost to the applicant for stabilising the shed area and repaving around the shed area. This includes cleaning and reinstating the existing backwash soakwell. 124 Accordingly, the Tribunal finds that that the applicant is entitled to $1,762.53 including GST in compensation from the first respondent within the meaning of s 36(1)(c) of the BS(CRA) Act . (Page 25)
Applications as to costs 125 The first respondent's application for costs against the applicant is refused on the basis that the applicant has been partially successful against him. 126 The second respondents' applications for costs against the applicant is refused on the basis that the Tribunal is a nocost jurisdiction and the Tribunal declines to exercise its discretion in their favour. The way in which Mr O'Neill undertook renovations at the Coorong Place property, without first obtaining permits and without notifying his neighbour, is a root cause of this dispute. He was also unwilling to provide details to the applicant of the contractors involved which prevented her from easily pursuing a remedy from them. Furthermore, while not ultimately pursued, it was the first respondent's position (not the applicant's position) that the second respondents may be a 'de facto' ownerbuilder. These factors prevent any conclusion that there should be a costs order in favour of the second respondents against the applicant and, in particular, that any costs and expenses were unnecessarily incurred by the second respondents due to the conduct of the applicant, within the meaning of s 49(3) of the BS(CRA) Act. 127 The applicant also made an application for costs against the first and second respondents. 128 The applicant's application for costs against the second respondents is refused on the basis that the applicant was not successful in her application against them. 129 In relation to the costs application against the first respondent, despite the Tribunal being a no-cost jurisdiction, the Tribunal does have a discretion to award costs. 130 Section 49 of the BS(CRA) Act should be applied in a manner which is consistent with, and reinforces, the objectives and procedures of the Tribunal, and all of the considerations identified in the exercise of the discretion under s 87 of the State Administrative Tribunal Act 2004 (WA) remain relevant. In particular, for example, the Tribunal might more readily allow recovery of all disbursements properly incurred where the total disbursements, usually relating to the costs of expert witnesses, are such that the cost represents a significant proportion of the monetary value of the relief obtained: see Hoskins and Daniel Vinci T/As D'Vinci Contracting [2011] WASAT 188 [18] - [19]. (Page 26)
131 The applicant's principal expert witness (the only expert witness called to give evidence) cost more than the award won by the applicant. However, in the circumstances of this case, this is not a sufficient basis to justify an award of any costs against the first respondent in favour of the applicant. Almost all of the applicant's case was not made out and her expert's report did not support most of her allegations. The parties' relationship had broken down, which is not the fault of any one party alone. These factors prevent any conclusion that there should be a cost order in favour of the applicant against the first respondent and, in particular, that any costs and expenses were unnecessarily incurred by the applicant due to the conduct of the first respondent, within the meaning of s 49(3) of the BS(CRA) Act. 132 Accordingly the applicant's application for costs against the first respondent is refused.
Order 133 The Tribunal orders the following: |