Whelan and Stonehenge Construction Pty Ltd - [2016] WASAT 1

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

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

CITATION: WHELAN and STONEHENGE CONSTRUCTION PTY LTD [2016] WASAT 1

MEMBER: MR C RAYMOND (SENIOR SESSIONAL MEMBER)
MR P MITTONETTE (SESSIONAL MEMBER)

HEARD: 15 AND 16 JUNE AND 7 OCTOBER 2015

DELIVERED : 4 JANUARY 2016

FILE NO/S: CC 1819 of 2014

BETWEEN: TRISTAN WHELAN
DEBRA HAYES
Applicants
AND
STONEHENGE CONSTRUCTION PTY LTD
Respondent

Catchwords:

Building Services (Complaint Resolution and Administration) Act 2011 (WA) Repudiation of building contract by owner Determination of liability in respect of claims for alleged breaches of contract and faulty and unsatisfactory building work Turns on own facts

Legislation:

Building Code of Australia
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5, s 11(1)(d)
State Administrative Tribunal Act 2004 (WA), s 46

Result:

Application successful in part

Summary of Tribunal's decision:

The applicants lodged a complaint with the Building Commissioner against the respondent pursuant to s 5 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) alleging that the respondent builder was liable in respect of numerous alleged breaches of contract and alleged faulty and unsatisfactory workmanship in respect of a renovation carried out to their dwelling.
In previous proceedings, the Tribunal, differently constituted, held that the applicants had wrongfully terminated the building contract with the respondent and that the contract had terminated as a result of the respondent's acceptance of the applicants' repudiation of the contract. Consequently, the Tribunal determined that the applicants were not entitled to any remedy in respect of incomplete building work, or for defective building work which had been, or was deemed to have been, taken into account by the architect in issuing a progress payment certificate shortly prior to the termination of the contract. In the previous proceedings the Tribunal had found that this progress certificate was the most reliable evidence of the value of the works as at the date of termination of the contract.
Following a preliminary hearing to determine the question of liability only, the Tribunal dismissed the vast majority of claims made by the applicants because they were either in respect of incomplete work, or related to defective work which should have been taken into account in the above payment certificate. Certain orders were made with the consent of the parties and the Tribunal ruled that the respondent was liable to the applicants in respect of some claims. The matter was accordingly listed for a directions hearing so that the matter could be programmed, if necessary, to a final hearing to determine the quantum of the claims which had been upheld.

Category: B

Representation:

Counsel:

Applicants: Mr T Whelan (In Person and Acting as Agent for the second applicant)
Respondent: Mr J Marrapodi (Acting as Agent)

Solicitors:

Applicants: N/A
Respondent: N/A

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

McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457
Stonehenge Construction Pty Ltd and Whelan [2013] WASAT 192

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 16 September 2011, the parties entered into a written building contract in the Australian Building Industry Contract Simple Works Contract form for a contract price of $427,530.40 in respect of renovations to be carried out to a dwelling owned by the applicants at 20 Highbury Street, Floreat.
Hereafter the applicants will be referred to as the owners and the respondent will be referred to as the builder.
The contract and how it was administered had all the ingredients necessary for a significant dispute. The owners appointed one of them, Mr Tristan Whelan, as the architect to administer the contract, apparently oblivious to the conflict of interests which would inevitably arise. The architect gave numerous oral instructions to vary the contract. This was contrary to the terms of the contract which required variations and instructions from the architect to be in writing. The owners then terminated the contract in circumstances in which the Tribunal (differently constituted), in a previous matter, found was unlawful and constituted a repudiation of the contract: see Stonehenge Construction Pty Ltd and Whelan [2013] WASAT 192 (Stonehenge 1).
The owners claim in these proceedings to be entitled to an amount of $103,260.20 as result of various alleged contractual breaches and alleged faulty and unsatisfactory workmanship (defect claims/defective work). The practical difficulty this gives rise to is that it becomes necessary to determine whether complaint items reflect defective work, or constitute incomplete work, for which the builder is not liable as discussed below.
In Stonehenge 1, the Tribunal determined that the builder was entitled to a final progress payment of $81,350 in respect of the value of the works carried out by it prior to the date of termination plus $100 as nominal damages for breach of contract. The Tribunal in those proceedings declined to deal with any specific claims made by the owners in respect of alleged defective work because no complaint had been made by the owners to the Building Commissioner in respect thereof.
Following the determination in Stonehenge 1, the owners lodged a complaint with the Building Commission on 10 December 2013 in respect of alleged defective work. That complaint has been referred by the Building Commissioner to the Tribunal for determination pursuant to s 11(1)(d) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act). The Tribunal issued programming orders directing the filing and service of a Scott Schedule and thereafter, further directed that the matter be listed for a hearing to determine the question of liability in respect of the claim items identified in the Scott Schedule. The issue of quantum was directed to be dealt with separately following such determination.
The hearing of the preliminary issue to determine liability only took place on 15 and 16 June 2015, but was not completed, and had to be adjourned part heard. The Tribunal was then constituted by fulltime Member Lisa Ward and Sessional Member Peter Mittonette. Prior to the further hearing, Member Ward left the Tribunal. The Tribunal was subsequently reconstituted by substituting Senior Sessional Member Clive Raymond for Member Ward and it was proposed that the matter be determined on the transcript of the evidence of the proceedings, together with the oral evidence to be adduced in the further hearing. Neither party objected to that course being followed. The further hearing was concluded on 7 October 2015.

Background facts and preliminary findings

The background facts are generally not in contention. Where there is any dispute between the parties, that will be apparent from the context and the Tribunal's reasons for the findings made. Much of the relevant factual circumstances are set out in the hearing book (HB) which was prepared by the Tribunal and which was admitted as Exhibit 2, subject to any proper objection which might be raised in respect of any of the documents contained therein. No objection was raised to any of the documents.
As stated above, the building contract was entered into between the parties on 16 September 2011 (HB 269). The standard form of contract incorporates a number of schedules which are intended to record all of the terms and conditions of the contract. Schedule 3 records the order of precedence of the contract documents. The contract documents are defined to include, amongst other documents expressly described, the drawings and any other documents shown in Schedule 3. Schedule 3 refers by way of a handwritten addition to an Addenda and Specification. The Addenda and Specification, reflecting signature by the parties on 16 September 2011, appears at HB 406 and the drawings appear from HB 432.
Section S of the contract includes the following definitions:
defect or defective work necessary work that is:
a in breach of any of the warranties set out in the contract documents
b not in accordance with the standard or quality of building works specified in the contract documents
necessary work all work including any temporary work necessary to complete the works
worksthe completed construction set out in the contract documents (briefly described in item 5 of Schedule 1)
Schedule 1 item 5 refers to the works as being the addition and alterations to residence, while item 6 refers to the site of the works as being 20 Highbury Street, Floreat.
Relevantly, section N4 of the contract refers to the payment for the works by way of progress payment claims and sets out the procedure to be followed by the architect. It provides that when assessing a claim for a progress payment, the architect must take account of each of the following:
…
(b)The proportion of the cost of building work claimed, representing the value of the necessary work completed up to and including the day of the claim, making allowance for the cost of rectifying defects, if any[.]
Section J of the contract provides that the architect may give to the contractor a written instruction for a variation at any time before the date of practical completion. The contract proceeds to set out a regime to be followed where the written instruction for a variation will result in a change in the contract price.
On 6 February 2013, the owners purported to terminate the contract by written notice of that date alleging that the builder had breached the contract in a particular respect. The Tribunal in Stonehenge 1 found that the termination was not lawful under the contract and that the builder had accepted the owner's unlawful termination as a repudiatory breach and terminated the contract in writing on 12 February 2013.
The last progress payment claim issued by the architect prior to the termination of the contract is dated 21 January 2013 and is identified as certificate 11. It reflects the percentage of each category of work completed at that date (HB 264). This reflected that, overall, 92% of the contract works had been completed.
Subsequent to the termination, the architect issued a termination certificate which reflected that only 70% of the work had been completed. Mr Whelan gave evidence in that hearing that he had only certified the work at 92% for loan drawdown purposes: Stonehenge 1 at [40]. The Tribunal, in that matter, rejected Mr Whelan's evidence that the builder had only completed 70% of the work as self-serving and dishonest. The Tribunal was unable to determine, on the evidence which was before it, the true value of the work which had been completed as at the date of determination. It concluded that the best available evidence was the January certificate assessing the work as 92% completed.
The effect of section N4 of the contract, as set out above, is that the architect, in issuing the progress payment claim certificate, must be taken to have taken into account the cost of remedying any defective work which was observable upon reasonable inspection by the architect. As indicated in the introduction, no claim lies in respect of building work which is incomplete because both parties are discharged from further performance of the contract upon its termination: see McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457 at 476‑477. Consequently, when examining each of the claims advanced by the owners, it is necessary to consider whether, in the case of defective work, it could have been observed on reasonable inspection. If so, the owners must be taken to have already been compensated for any such claim and the builder is not liable in respect thereof.
The owners' various claims have been revised over time but were allocated claim item numbers at the relevant times. When the final Scott Schedule was prepared in accordance with the Tribunal's directions, it became apparent that the owners were not pressing all of the original claim items. Consequently, there are some claim item numbers set out in the Scott Schedule in respect of which no detail at all has been provided. The claim numbers falling into this category are items 2, 9, 59, 60, 64 and 65. As no claims have been made in respect thereof, they will not be referred to any further in the reasons which follow. Other claim items set out in the Scott Schedule have been grouped together for convenience because they are related to each other although they were not originally listed consecutively. In determining the claims, we have used the same numbering and grouping as contained in the Scott Schedule.
During the course of the hearing, claim items 12 (relating to a pool blanket), 13 (relating to pool heating), 14 (relating to a pool cleaner), 15 (relating to pool filtration equipment), 16 (relating to a pool deck), 34 (relating to a pump and controller for a hot water unit) and 66 (relating to the provision of electrical conduit) were sought to be withdrawn by the owners. Accordingly, leave to withdraw those items will be granted and they will all be dismissed pursuant to s 46 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
During the hearing, evidence was given by the following witnesses:
•Mr Tristan Whelan gave evidence on behalf of the owners.
•The owners also called Mr Anthony D'Amelio, a cabinetmaker, to give evidence in relation to complaint item 71 relating to the splashback installation in the kitchen.
•An expert witness, a building consultant, Mr Murray Theodoro, was also called on behalf of the owners and reliance was placed on a report prepared by him (HB 73).
•Mr Gregory Thompson and Mr John Marrapodi gave evidence on behalf of the builder.
The Tribunal considers that all witnesses gave evidence in an acceptable manner. Mr John Marrapodi was directly involved in the construction and generally impressed the Tribunal with having a more detailed and accurate recollection of events than Mr Whelan. Mr Whelan had been strongly criticised for the manner in which he gave evidence in Stonehenge 1. It was evident to the Tribunal in this hearing that he was generally careful to be as accurate as possible in his evidence. Nevertheless, there was a degree of reconstruction in his evidence and Mr Marrapodi, on occasion, was able to use photographs provided by Mr Whelan to demonstrate errors in his evidence. An example dealt with below relates to claim item 3 concerning the alfresco steps. Specific reference will be made to conflicting evidence in addressing each of the claim items.

Item 1: Bore

The owners claimed that the siteworks carried out by the builder had been completed in an unsatisfactory manner because the builder had failed to grind and cut a concrete shell liner to the bore to below ground level.
There is no dispute that this work remained to be done. Mr Whelan said that the fact that the work had not been done was not visible because it was hidden by dirt. This was disputed by Mr Marrapodi who said it was very visible before he left the site (following the termination of the contract). He pointed out that siteworks had only been certified to be 90% complete as at 21 January 2013. He explained that this work had been left to be done later because the formwork for the pool had been installed and prevented the work being conveniently done at the same time as other site work.
It is improbable that this type of omission could be ignored in completion of building works to the stage of practical completion. We consider that this complaint relates to incomplete work still to be done by the builder. The complaint will be dismissed.

Item 3: Alfresco steps

It was necessary to demolish and reinstall brick steps constructed by the builder.
Mr Whelan's evidence was that the alfresco steps were out of plumb by 60 millimetres. Mr Marrapodi referred to a photograph of part of the steps (HB 31) and pointed out to Mr Whelan that the photograph showed that a brick had been pulled out of the steps and the spirit-level shown in the photograph was placed against the section where the brick had been removed, and therefore could not indicate whether the finished level was out of plumb or not. The transcript reflects:
MARRAPODI, Mr: No. Behind it. Behind it, clearly with all the debris, that you have already started off pulling up the bricks.
WHELAN, Mr: Right.
Mr Whelan explained that there was no reference to the alfresco steps in Mr Theodoro's report because he had the work done reconstructing the steps prior to the report being prepared. The work had been carried out by Mr Paul Ryland. Mr Ryland was not called as a witness to support the claim.
On the evidence outlined above, the concession made by Mr Whelan and the failure to call Mr Ryland to give evidence, we find that the evidence is insufficient to support the claim.
Mr Marrapodi went on to say that at no time when he was on site had any issue been raised with him about the alfresco steps being out of level. To the contrary, he said that Mr Whelan had indicated, after the alfresco steps had been constructed, that he had wanted to reconfigure the step design which would have involved 'cutting a top brick and rehashing it', and he said he had arranged for a bricklayer to come back and do the necessary work. Mr Whelan did not directly dispute this evidence, but he did insist that the alfresco steps were out of level and added, later in his evidence, that the risers were the incorrect height, which meant that the treads required lowering. On this issue, we prefer the evidence of Mr Marrapodi because the photographic evidence, far from supporting Mr Whelan, casts doubt on the suggestion that the steps were out of plumb. It is also surprising that the alleged need to lower the height of the treads was not raised from the outset. The claim will accordingly be dismissed.

Item 4: Boundary wall

The owners complain that there is missing brickwork to the piers of the pool wall, that it is necessary to patch the texture to the pier tops and to clean the face brickwork to the boundary wall.
Mr Theodoro's report includes a reference to a photograph (photograph 14, HB 80). The photograph clearly shows that there is a brick missing from the top of a pier in the foreground. The pier is on the neighbour's side of the wall and Mr Whelan explained that it was not noticeable from his side of the property. He was unaware of the missing brick until his neighbour drew it to his attention. Similarly, it is the brickwork on the neighbour's side of the wall which the owners claim needs to be cleaned. The red face bricks on the neighbour's side of the wall were not required to be rendered.
Mr Whelan pointed out that the drawings had a notation to the effect that the walls were to be bagged. However, he said that he had agreed with Mr Marrapodi that he did not have to do the bag finish if the brickwork was just cleaned. This was the first of many instances during the course of evidence in which either Mr Whelan or Mr Marrapodi referred to circumstances where instructions had been given, or agreement reached, to vary the contract, in a manner which was not in accordance with the contract. Oral instructions and agreements were reached when the contract clearly required the same to be in writing.
Mr Marrapodi disputed that there had been any agreement for him to clean the brickwork. He pointed out that the Addendum contained an express provision that cleaning of red face bricks would incur an extra cost, so that if he was required to carry out any cleaning, there would be an additional cost for doing so.
Mr Whelan also contended that there was an obligation on the builder to render the top of the piers. He contended that the photographs provided by Mr Theodoro showed that the piers were rendered (presumably save for the pier in respect of which there was a missing brick). The photographs do not demonstrate that the other piers were rendered.

It is clear to us that the builder presented the work in relation to this wall as having been completed. Mr Marrapodi's evidence demonstrated that he regarded the wall as having been constructed and finished in accordance with the builder's contractual obligations. On the other hand, there is a brick missing from the top of one of the piers. This was not visible from the owners' property and, on the balance of probability, we are not satisfied that there was any intention to come back and add the missing brick. We regard this aspect of the claim as constituting defective (unsatisfactory) work and the claim to that extent will be upheld, but otherwise, the remainder of the claim will be dismissed.

Item 5: Termite barrier

The owners claim that the builder is obliged to provide a notice of the termite treatment carried out at the site in accordance with the requirements of the Building Code of Australia (BCA).
There was initially some contest as to whether the builder was obliged to provide the notice which would have been given in the ordinary course but for the termination of the contract. However, agreement was reached during the course of the evidence that the builder would telephone the contractor who carried out the termite treatment and request that a certificate be provided to the owners. An order will accordingly issue requiring that the builder uses best endeavours to ensure that the certificate is provided to the owners.

Items 6 and 7: Hose tap

The owners contend that the builder is required to locate and expose a damaged water supply line, then install an inline connection kit, flush and clean the system, backfill and make good.
Mr Whelan stated that the water supply line had been damaged when the builder installed some steps to the front of the house; that the break had been sealed and left disconnected. This was only noticed when the owners wanted to use the taps.
Mr Marrapodi denied that the supply line had been damaged by the builder.
Mr Marrapodi established that the supply line went under the footings in the locality where the steps were installed. The inference is that consequently the installation of steps would not have affected the supply line. However, Mr Whelan said that the line which is constructed out of polycarbonate, a black plastic, led to a point in the vicinity of the steps where it had been folded (to seal it). It is therefore possible that the damage occurred in that location during the construction of the steps. We therefore do not make the inference which we understand the builder to be suggesting should be made that it could not have damaged the pipe because it ran under the footings.
Nevertheless, Mr Marrapodi denies having damaged the pipe and states that it would have been illogical for him to leave it in the manner described by Mr Whelan, which would simply create a maintenance problem.
There is no evidence that anyone saw Mr Marrapodi or any other representative of the builder actually damaging the pipe. After the contract was terminated, there were other contractors on site. The evidence is accordingly insufficient to establish the claim against the builder and will be dismissed.

Item 8: Sewer services

The owners claim that the Water Corporation has not been provided with the constructed plan of the sewer services.
It is not disputed that the plumber engaged by the builder is obliged to provide the Water Corporation with the plan in question. As with item 5 above, there was initially some controversy about whether the builder was obliged to ensure the plan was provided, given the contract had been terminated, but the parties agreed that the builder could arrange for the plumber engaged by it to provide the Water Corporation with the necessary plan. A consent order will accordingly issue requiring that the builder use his best endeavours to ensure that the plan is provided to the Water Corporation.

Items 10, 19, 40, 41, 42, 43, 44: Rendering

The owners claim that the builder is obliged to complete rendering and texture coating where incomplete; and to extend the brick column to match and patch render and texture coating.
In evidence, Mr Whelan did not identify any areas of render that required patching. He acknowledged that he was talking about incomplete work. These claims accordingly fall to be dismissed.

Item 11: Stormwater services

This claim is similar to items 5 and 8 discussed above. The owners require that an as completed plan of the underground services be provided to the Water Corporation. The builder has agreed to contact his plumber to arrange that this be done. A consent order will accordingly be made requiring the builder to use its best endeavours to ensure that the as constructed plan of the underground services is provided to the Water Corporation.

Item 17: Face brickwork

The owners claim that the builder is obliged to clean the face brickwork to the terrace and kitchen wall on the boundary, including pointing to mortar joints.
Mr Whelan's evidence focused only on the alleged failure to clean the red face bricks on the walls facing the neighbour's property. He again referred to what he understood to be an oral variation to the contract whereby, instead of the walls being bagged, the side of the walls facing the owners' property would be rendered and the exposed brickwork facing the neighbour's property would be cleaned.
Mr Marrapodi and Mr Thompson acknowledged that there had been a discussion about cleaning the walls but it had never been finalised and, in any event, they said it would have involved an extra cost. The evidence is insufficient to support the owners' claim and it falls to be dismissed.

Items 18 and 21: Dining slider

The owners assert that the builder is obliged to provide waterproofing to the slab edge and install a brick support to the dining and living room doorframes.
Mr Whelan referred to a photograph showing a doorframe supported by two bricks. He stated that it could be seen that the slab upon which the bricks were situated had not been waterproofed. It was clarified that by this he meant that the slab had not been parged.
Mr Marrapodi said that the entire edge of the slab had been parged in accordance with usual practice. A render was used with a waterproofing agent. While that agent is often black in colour, there is also a clear agent. Upon being questioned by the Tribunal, Mr Whelan was unable to refer to any photograph which could show that the section of the slab had not been parged.
In relation to the support of the doorframe, Mr Marrapodi clarified that this was temporary measure, as is often used when there is a door opening on to a deck or open area, so that the decking could be built under the doorframe. In this instance, he stated that the temporary support had been provided because paving was to be installed under the doorframe.
Mr Theodoro did not address this issue in his report or in his evidence.
We do not consider that the owners' evidence is sufficient to establish that there is any defect in the work carried out by the builder. We do not accept Mr Whelan's evidence that the paving was to be installed so that it would be flush with the sill. This would be contrary to good building practice.

Items 20 and 36: Brickwork and plumbing

This complaint relates to a trench drain installed in the bathroom. The owners asserted that it constituted defective work because a grille designed to fit over the top of the drain had not been installed.
There was some dispute between Mr Whelan and Mr Marrapodi as to the circumstances which resulted in the installation of the drain. It is, however, clear that there was an oral agreement to vary the contract to allow for the installation of the trench drain.
Mr Whelan stated that the grille had never been on site. This was disputed by Mr Marrapodi. He stated that the drain was supplied as a single entity. There would be no reason for him to supply the drain without the grille cover.
This is an example of the type of difficulty which arises when a building contract is terminated prior to practical completion being achieved. The owners bear the burden of establishing that the work carried out by the builder is faulty or unsatisfactory. There is evidence in respect of a later claim relating to an expensive screen door which also went missing off the site. In the absence of clear evidence pointing to the builder being responsible for such a loss, there will always be a risk that such claims will be regarded as not proven. We do not consider, on the evidence before us, that the owners have discharged the onus on them and accordingly this claim will be dismissed.

Item 22: Brickwork

The owners claim that the drawings required that a brick sill be constructed under a window described as WDO2 in the drawings. Mr Marrapodi took Mr Whelan to the elevation drawings (HB 437) which did not show a brick sill under the window WDO2. Mr Whelan stated that there were missing pages to the drawings and that other drawings showed that a brick sill was to be installed. He said these drawings were supplied to the Building Commissioner.
The Tribunal can only act on the evidence which is before it and that evidence does not support the owners' claim, which will accordingly be dismissed.

Item 23: Brickwork

This claim relates to the replacement of missing brickwork allegedly damaged during construction.
Mr Whelan referred to a photograph marked 'Observation 137' (HB 45) which depicts the alleged damaged brickwork. Mr Theodoro also included a photograph in his report, being photograph 42, showing alleged missing brickwork.
Mr Marrapodi stated that there was no missing brickwork. A timber beam originally at that location had to be removed for the purposes of the renovation work.
It is, in our view, manifestly clear that the work as depicted could not be presented by any builder as constituting completed work. There is obviously work to be carried out in the area concerned. We find that the complaint relates to incomplete work still to be carried out by the builder. Mr Marrapodi expressly stated that he would have completed this work had the contract not been terminated. This complaint will accordingly be dismissed. In any event, if we were wrong in this conclusion, the work would have been easily observed on any inspection by the architect and should have been taken into account when certifying the amount of the payment due to the builder in certificate 11. The claim would fall to be dismissed on this basis.

Item 24: Cabinetwork

The owners claim that the builder is liable to replace a soft closing mechanism to a cupboard door which is alleged to be faulty.
Mr Whelan states that it was noticed that the soft closing mechanism of the particular cupboard was broken almost immediately after it was installed by Mr Marrapodi. Mr Marrapodi denied this. He stated that if it had been brought to his attention, he would have had the cabinetmaker attend to it. The only discussion which he said occurred concerning a soft closing mechanism related to a corner cabinet. Mr Marrapodi stated that Mr Whelan requested that a soft closing mechanism be used and this had been raised with the cabinetmaker who advised that it was not possible to install a soft closing mechanism on a corner cabinet because of the nature of the concertina door that was used.
As we have observed, we have generally been more impressed with Mr Marrapodi's recollection of events relating to the performance of the contract. In the face of contradictory evidence from the parties, we are unable to find that the owners have discharged the onus on them of establishing that the work in question was defective as at the date of termination of the contract. This claim will accordingly be dismissed.

Item 25: Cabinetwork

The owners claim that the dishwasher door face panel requires refitting where it is misaligned.
A photograph of the particular door appears in photograph 67 attached to Mr Theodoro's report (HB 89). Mr Whelan stated that it looked as if the door may have been warping on the skirting and had been trimmed down to make it open completely.
Mr Marrapodi stated that the door had not been installed by the cabinetmaker (on behalf of the builder). At the time when the cabinetmaker was installing the cupboards, the dishwasher, which was to be supplied by the owners, was not delivered to site as arranged. This particular door is one which is fitted to the door of the dishwasher. Consequently, the door was left on site. While it was intended to call the cabinetmaker back to fit the door, this was not done prior to termination of the contract.
Mr Whelan attempted to respond to this by stating in his evidence:
WHELAN, Mr: So, I guess just to add on the soft closer and this door panel, the cabinetmaker came back and installed a soft closer on that corner door, and I can only assume that he did the dishwasher panel at the same time. The dishwasher was on site throughout the whole project and was there to be installed.
It is clear that Mr Whelan does not have direct knowledge that this occurred and it is inconsistent with Mr Marrapodi's evidence that he had been advised that a soft closing mechanism could not be fitted to the corner door. Further, it is implicit in Mr Whelan's statement that the dishwasher was not on site when the cabinet in question was installed, because it is evident that he could not dispute Mr Marrapodi's evidence to that effect and there would have been no need to come back to fit the door if the dishwasher was on site.
This particular circumstance is one of the reasons why we have considered Mr Marrapodi's recollection of events which occurred on site to be better than that of Mr Whelan.
We find that the work in question constituted incomplete work, not defective work, and accordingly the claim must be dismissed. In any event, even if we were wrong in that conclusion, the omission of the door was patently obvious and should have been noticed by the architect on any reasonable inspection so that the cost of remedying the defect, if it be such contrary to our conclusion, should have been taken into account in providing progress payment claim certificate 11.

Item 26: External cladding

The owners allege that the builder is liable for the supply and installation of two lengths of weatherboard to the external wall of the playroom.
Mr Whelan's evidence was that while the decking was being put in, these panels were removed to allow the decking to be installed.
Mr Marrapodi confirmed that Mr Whelan was correct but the effect of his evidence is that this was necessary work for the installation of the decking and that it constitutes incomplete work.
In our view, it is not possible to characterise the work as being defective. The decking had been certified in progress payment claim 11 to be 75% complete. The work was necessary in order to fit the deck and we accept that this is work which is still to be completed. The claim accordingly falls to be dismissed.

Item 27: External cladding

The owners contend that there are cladding nails used on the playroom wall which need to be punched below the surface. The complaint is depicted in photographs 52 and 53 attached to Mr Theodoro's report (HB 86).
Mr Marrapodi testified that the cladding had been installed except for the bottom row. Once the cladding was completed, it would be normal to ensure that all nails were properly punched.
We find that the cladding was not completed and was not presented as completed work. We consequently find that this claim relates to incomplete work and must therefore be dismissed.
However, if that conclusion is wrong, and the work constitutes defective work, it was visible and should have been observed on any reasonable inspection by the architect so that the cost of remedying the work would be taken into account in issuing progress payment claim certificate 11. The claim would therefore in any event fail on that basis.

Item 28: Playroom window

The owners allege that the window in the playroom has been defectively installed by the builder because there is no flashing to the window head.
Mr Marrapodi did not dispute that no flashing had been installed but stated that it was not needed as the window was under an eave.
When Mr Whelan was asked by the Tribunal whether there was any evidence showing that flashings were required, he responded that he thought it was documented in one of the drawings that had not been provided to the Tribunal. He pointed out that Mr Theodoro had referred to the window and made the statement that there was no flashing. The report gave no reason as to why flashings were required, either in terms of the drawings, which Mr Whelan said had been provided to Mr Theodoro, or by reference to any requirement of the BCA.
The evidence provided is insufficient to establish that the work the subject of this complaint is defective and will accordingly be dismissed.

Item 29: Laundry door

The owners claim that the builder is responsible for the replacement of a screen door which was to be fitted to the laundry.
The screen door was removed from the existing dining area and was to be used for the new laundry door. The screen had been removed in the process of relocation of the door. The screen which was made of wrought iron and is said to be of some considerable value, was observed by Mr Whelan to be on site and was last seen by him a few days prior to termination of the contract. Mr Whelan stated that the screen was in the laundry behind the door, ready to be installed.
This was not a situation in which the builder had exclusive possession of the site. Contrary to the terms of the contract, and during the course of performance of the works, the owners took occupation over the objection of the builder. There is no direct evidence establishing that the builder is responsible for the loss of the door. Indeed, the fact that Mr Whelan recalls last seeing the door screen a few days prior to the termination of the contract does not mean that the screen door was not there on the date of termination and went missing at a later date. The evidence is simply insufficient to establish any liability, on any basis, against the builder. Clearly, the installation of the door was something still to be carried out by the builder and constitutes incomplete work. The claim will accordingly be dismissed.

Items 30 and 33: Pantry door

The owners allege that the sliding pantry door is warped and requires to be replaced by the builder.
Mr Whelan stated that the pantry door was warped when it was installed and that he asked Mr Marrapodi to have it replaced at the time. This was denied by Mr Marrapodi. He said that the door was custom made at the request of the owners. It was a very large, solid door of considerable weight. He said that he was aware that the carpenter had warned Mr Whelan that the door would need to be painted to stop warping. The builder was not responsible for any painting under the contract, which was to be undertaken by the owners. Mr Marrapodi referred to a written statement which had been provided by the carpenter, Mr Damian Zalewski, to the above effect (HB 365).
This claim is a good example of the difficult position which the owners have created for themselves by having Mr Whelan appointed as the architect. He is not an independent, objective witness. He has a direct interest in the dispute, and in the Stonehenge 1 decision, was found to be untruthful, which reflects the conflict that he was under in attempting to perform the duties of an independent architect. If an independent architect had noted and properly recorded concerns about the quality of materials when they were installed, there would be no difficulty of proof.
In circumstances such as those relating to this complaint where there is contradictory evidence given by the parties, when we consider that Mr Marrapodi's recollection is generally better than that of Mr Whelan, and when Mr Whelan's credibility has been found wanting in relation to this particular transaction, albeit in separate proceedings, we would be very slow to prefer the evidence of Mr Whelan to that of Mr Marrapodi. We are unable to find that the claim is proven and it will accordingly be dismissed.

Items 31 and 32: Ensuite door

The owners allege that the ensuite door has been incorrectly located.
Mr Whelan stated that the door was installed in the stud frame wall which, according to the drawings, showed that the jamb of the doorframe should have aligned with the edge of the tiled area in the bathroom, and a trench grate (similar to that discussed in respect of a previous claim) should also have aligned with the edge of the tiles. This is depicted in photographs 68 and 69 attached to Mr Theodoro's report. The relevant drawing is at HB 434 and it is consistent with Mr Whelan's description above.
Mr Marrapodi stated that during the construction, he found inconsistencies in the measurements shown in the drawings and that he sought instructions from Mr Whelan. The difficulty was that the plan showed that the tiling finished immediately at the edge of the bath and the grate would coincide with that edge. Consequently, any splashing out of the bath was likely to pass over the grate onto the timber floor. Mr Marrapodi said that the problem was not the position of the door; it was in the correct location in accordance with the plan.
Mr Whelan did not dispute that the tiling had been extended and the position of the grate changed but he suggested that, if the door had been correctly located in accordance with the drawings, that would correct the position. That, with respect, is illogical because the drawings clearly show the door jamb aligned with the tiling and the edge of the bath and the tiling has been extended.
Common sense may have suggested that the position of the door should have been changed so as to align not with the edge of the bath but with the new edge of the tiling and grate. But in the absence of clear instructions from the architect, and, in particular, instructions recorded in writing so as to avoid dispute, the builder cannot be said to have carried out works in a faulty or unsatisfactory manner by following the plan. This claim will be dismissed.

Item 35: Plumbing

The owners assert that the hot water pipes need to be insulated in order to comply with BCA requirements.
Mr Whelan made the bald assertion in his evidence that the BCA required the hot water pipes in the ceiling space to be insulated. He stated that this was not discovered until he looked into the ceiling space when looking for a leak. He suggested that this was a latent defect that could not have been seen upon an initial inspection.
Mr Theodoro did not deal with this issue in his report. We have not been referred to any specific requirement of the BCA. Mr Marrapodi stated that the water pipes were polypex pipes. This was understood to be a trade name but the effect of Mr Marrapodi's evidence is that the piping is not copper but is manufactured from a plastic or polycarbontype material. Mr Thompson stated that only copper piping is required to be insulated.
We are not satisfied, on the evidence, that it is established that the plumbing work is defective because it is not insulated. In any event, if we were wrong in that conclusion, a proper inspection as would be expected prior to certification would have revealed the lack of insulation and the cost of rectification must be taken to have been included in progress payment claim certificate 11. The claim would fail also on this basis.

Item 37: Plumbing

The owners contend that the builder has carried out defective work because a silicon seal has not been placed around some of the fixtures.
Mr Marrapodi did not dispute the substance of the complaint but said that the plumbing work had not been completed and the sealing would be completed in the ordinary course. We consider that this constitutes incomplete, not defective, work, and the claim will accordingly be dismissed.

Item 38: Plumbing

This claim is related to the claim items 31 and 32 discussed above. The owners assert that the drain installed is too short and constitutes faulty or unsatisfactory workmanship.
As discussed above in relation to items 31 and 32, the tiling in the ensuite bathroom was extended beyond the line of the edge of the bath, as shown on the plans. The drain was to be installed, originally, on the edge of the tiling and therefore would have aligned with the edge of the door jamb. Because the tiling was extended beyond the door frame, it also had to be extended slightly into the door frame to fill a step in the door jamb. The drain does not extend to the edge established by this small area of intrusion. This is depicted in photograph 69 attached to Mr Theodoro's report (HB 89).
Mr Marrapodi stated that it was not clear from the contractual documents as to what form of drain was to be installed. He referred to an email from Mr Whelan dated 28 November 2011, some two months after the contract was signed, in which Mr Whelan attached information about a drain which he considered was required for the ensuite (HB 265). Mr Marrapodi stated that he needed guidance on exactly what Mr Whelan required and stated that the measurements and everything else that went with the drain were determined in conjunction with Mr Whelan. Subsequently, the decision was made to extend the tiling and move the drain to prevent water being splashed out of the bath onto the timber floor. Mr Marrapodi pointed out that, at no time after installation of the drain and the changes to the tiling, did Mr Whelan raise any concern.
The owners fall victim of the very poor administration of this contract by Mr Whelan. In the circumstances in which agreement was reached for amendments to be made to the ensuite bathroom, we do not consider that the drain, as installed, constitutes faulty or unsatisfactory work by the builder. The claim will be dismissed. In any event, if we are wrong in this conclusion, the work is clearly visible and should have been observed on any reasonable inspection by the architect so that, if it is defective, its cost of remediation should have been taken into account in progress payment claim certificate 11. The claim would also therefore fail on this basis.

Item 39: Range hood

The owners allege that the installation of the range hood by the builder is defective because a flue has not been installed.
The range hood is depicted in photograph 58 of Mr Theodoro's report (HB 87). Mr Whelan stated that the range hood is usable, but it only extracts the air into the ceiling cavity and that no flue has been installed allowing extraction through the roof.
Mr Marrapodi did not dispute this but pointed out that roof plumbing was only 95% complete, as evidenced by progress payment claim certificate 11, and that it was obvious that this work still had to be completed. If a penetration through the roof had been installed, one might be able to infer, depending on the evidence, that the work was being presented by the builder as having been completed. But, in the absence of any suggestion that this had occurred, it would indeed be obvious that the installation of the range hood was not completed. Mr Marrapodi explained that the only reason the range hood had been turned on is because an isolation switch was installed.
We find that the work in question is incomplete rather than defective and accordingly the claim will be dismissed.

Item 45: Roof plumbing

This complaint is based on the builder having installed a round downpipe rather than a rectangular one as specified.
The downpipe is shown in photograph 35 attached to the report of Mr Theodoro. It shows the downpipe leading from a rainwater head.
Mr Thompson referred to the Addenda and Specification (HB 413) in relation to the roof plumbing which specify that the downpipes to the extension were to be 75 millimetre Colorbond downpipes. Mr Marrapodi stated that 75 millimetre downpipes were only available as round downpipes. This point, however, does not answer the note to the Addenda to the effect that where a downpipe comes out of a rainwater head, the downpipe is to be 100 x 75 millimetre square downpipes.
We are satisfied that the work the subject of this complaint does not conform with the contract and is therefore unsatisfactory. However, this work is clearly visible and should have been taken into account in progress payment claim certificate 11. The claim will accordingly be dismissed.

Item 46: Roof plumbing

This claim relates to a downpipe having been installed in an incorrect position.
Mr Whelan referred to the floor plan and elevation drawings (HB 434 and 437) and pointed to the downpipe shown to the western side of the window described as WD:X6. Instead of the downpipe being located in this location, it has been placed between window WD:X6 and a nearby window described as WD:X5 on the drawings.
Mr Marrapodi and Mr Thompson attempted to justify the roof plumber placing the downpipe in its present location by suggesting that was the most efficient way of providing drainage. In the absence of some contractual discretion granted to the builder or his subcontracted roof plumber, the builder is obliged to comply with the contract plans. The builder failed to do so and the work, as completed, is therefore unsatisfactory. However, the positioning of the downpipe in the wrong location was clearly visible and should have been observed on any reasonable inspection by the architect and then taken into account in certifying the payment due to the builder. The claim will accordingly be dismissed.

Item 47: Roof plumbing

This claim related to the alleged failure of the builder to install a rainwater head.
Mr Marrapodi did not dispute that a rainwater head had still to be installed, but he pointed out that the wall immediately behind the rainwater head had to be textured (rendered) first prior to the rainwater head being installed and that still had to be done. Further roof plumbing was certified as being only 95% complete which supported his contention that this work remained to be done.
We find that the complaint relates to incomplete, not defective or faulty, work. The claim will accordingly be dismissed.

Item 48: Roof cover

The contract drawings contain a notation reflecting that translucent roofing was to be installed over a pergola. Mr Marrapodi acknowledges this and understood, until a later stage in the contract, that the sheeting would be installed but, he contends, at an extra cost. Mr Marrapodi relies on the Addenda and Specification which show what work has been included in the builder's pricing. The Addenda (HB 415) describes the roof cover which is included. There is no reference to the translucent sheeting over the pergola. We accept that this is the only sensible way in which to construe the contractual documentation.
Later, during the course of the construction, Mr Marrapodi states that Mr Whelan had indicated to the trades that he did not intend to install the translucent sheeting. Further, that because of this, although Mr Marrapodi had already caused seven beams to be installed for the pergola, in accordance with the contract drawings, Mr Whelan required this to be dismantled and for it to be reconstructed providing for eight beams. According to Mr Marrapodi, Mr Whelan had been warned by the carpenter that it would be necessary for him to have the battens painted as soon as possible to prevent movement or warping, which we understand Mr Marrapodi contends would not have been necessary if the translucent sheeting were to be fitted. In any event, the sheeting was not fitted. Mr Marrapodi points to a statement provided by Mr Martin Cooper, the carpenter engaged by the builder, referring to Mr Whelan's statement that he was not going to cover the top with translucent sheeting (HB 366).
On this evidence, we find that the provision of translucent sheeting remained outside of the builder's scope of works. If we are wrong in this conclusion and the work is to be regarded as being faulty or unsatisfactory, by reason of a failure to construct in accordance with the drawings, then, in any event, the failure would have been readily apparent on any reasonable inspection and should have been taken into account by the architect in certifying progress payment claim 11. The claim would therefore fail on this basis as well. The claim will be dismissed.

Item 49: Roof cover

This claim relates to an alleged failure of the builder to install sarking to an area of the roof.
Mr Whelan contended that Mr Whelan identified an area of roof, in the original part of the dwelling, in respect of which no sarking had been installed under the roof. This was not readily apparent and was discovered only when he was investigating a roof leak. It is not in dispute that sarking was not installed in respect of this section.
Mr Marrapodi stated that this area of the roof, being part of the original dwelling, was originally to be left with open eaves. After the sarking had been installed and roof cover placed over the entire dwelling, Mr Whelan, as architect, gave instructions, by way of an oral variation, to line the eaves of the original dwelling.
Mr Marrapodi's argument was that it could never have been intended to have sarking under a section of roof which would have open eaves because this would be unsightly. We consider this is a subjective view. The builder member of the Tribunal, Mr Mittonette, considers that it would not necessarily be an issue for some owners. In this case, the Addendum specifically provides that sarking is to be provided to the entire roof (HB 415). The contract is in that respect clear and it cannot be argued that sarking has been provided over the entire roof in the circumstances described above. Even if there was some justification in the builder's position (which we do not consider to be the case), one would expect, on the builder's approach, that when given instructions to vary the contract by lining the eaves of the original dwelling, the builder would have priced into the variation the cost of ensuring that sarking was installed.
We conclude that the builder is liable to the owners in respect of this claim.

Item 50: Roof plumbing

The owners contend that flashing installed by the builder is unsatisfactory and must be replaced.
The complaint relates to flashing around a chimney on the roof that has been done in two different colours. Mr Whelan confirmed that it is clearly visible from the ground.
Mr Marrapodi advised that the flashing had been done by two different contractors. After the initial flashing had been carried out, there was what Mr Marrapodi described as a drama with the roof caused by difficulties experienced by the roof tiler in cutting tiles in a particular configuration. As a temporary measure to ensure that the roof did not leak, Mr Marrapodi had the roof tiler install some flashing on the chimney. The roof tiler used a product known as Wakaflex which is in a particular colour. This was intended as only a temporary measure until the roof plumber could return to finish the roof plumbing which had been certified only 95% complete. This explained why the flashing was in two completely different colours.
It is manifestly clear that the flashing was not being presented as completed work by the builder. We find that the work the subject of this complaint represents incomplete, not defective, work. We note that roof plumbing had been certified as only 95% complete and the colour discrepancy was clearly visible from ground level. In any event, if we are wrong in this conclusion, and the work is to be regarded as defective, it would have been easily observed on any reasonable examination by the architect and should have been taken into account in certifying progress payment claim 11. The claim will accordingly be dismissed.

Item 51: Roof framing

This complaint relates to the installation of finials alleged not to be in accordance with the drawings and which the owners require to be removed.
It is not in issue that there are four finials concerned, as one has been installed to the apex of each of the four gables of the dwelling.
Mr Marrapodi states that there had never been any complaint about the finials but that is disputed by Mr Whelan. Mr Whelan says that he did indicate his dissatisfaction when the first finial was installed and that he did not know why the builder had then proceeded to install a further three finials.
The drawings do not depict any finials. There is no suggestion that Mr Whelan provided any design by way of a variation for the finials. It appears that the roof carpenter may have acted on his own initiative in considering that the finials were in keeping with the construction. While this might appear an entirely minor matter, the removal of the finials will involve having to replace the scribes that run down on either side.
Mr Thompson raised the argument that if the finials were considered as defective or unsatisfactory work then, in any event, Mr Whelan had certified roof framing and eaves lining as being 100% completed and must therefore have accepted the finials. We do not accept that argument. The obligation on the architect when certifying progress payment claims is to value the necessary work completed up to and including the day of the claim, making allowance for the cost of rectifying defects, if any. The definition of 'necessary works' is all work, including temporary work, necessary to complete the works. 'The works' is, in turn, described as the completed construction set out in the contract documents. It was accordingly not necessary for Mr Whelan to take the finials into account because they were not necessary work under the contract.
We find that the builder is liable to the owners in respect of this claim.

Item 52: Tiling

This complaint is that the builder has not provided silicon sealing to sanitary fixtures and to tiling joints at the junction of walls and floors in the showers.
Photograph 64 attached to Mr Theodoro's report appears to show that an attempt has been made to apply silicon, some of which has failed. We do not accept the submissions put on behalf of the builder that this constitutes incomplete work. The sealant has not been well applied and it has failed so that the work is unsatisfactory.
We find that the builder is liable to the owners in respect of this complaint.

Item 53: Tiling

This complaint alleges that marble tiles require cleaning.
Mr Whelan referred to photograph 71 attached to Mr Theodoro's report. The caption to the photograph suggests that permanent marks have been made on the tiles. There are two dark parallel lines visible on the photograph. On the other hand, in Mr Theodoro's written portion of the report at paragraph 43, he refers to pencil marks and other aesthetic blemishes that were observed on the tiled floors of the bathrooms, and he refers to photograph 71.
Mr Whelan also referred to photograph 70 attached to Mr Theodoro's report, the caption of which describes that a section of the grate of the wastewater drain has been stained with what appears to be either white paint or tile grout.
Mr Theodoro carried out his inspection in December 2013, some 10 months after the contract had been terminated. There is no apparent reason why the builder would have needed to make the marks which appear in photograph 71. We are not satisfied, on the evidence, that the owners have discharged the onus on them to establish that the builder is responsible in relation to this complaint and it will accordingly be dismissed.

Item 54: Carpentry

The owners allege that the timber moulding provided by the builder needs to be replaced because it does not match existing mouldings.
The difficulty with this claim is that there is no single example of mouldings which could be used when considering the existing mouldings, at least to the extent that we are able to identify them from the various photographs provided in evidence. In addition, we note that the architect had certified that 100% of the mouldings work had been completed in certifying progress payment claim 11, which suggests that the architect was satisfied with the mouldings that had been provided by the builder. We do not consider that the owners have provided evidence sufficient to establish this claim and it will accordingly be dismissed. If we are wrong on the merits of the claim and the mouldings are regarded as unsatisfactory because they do not match existing mouldings, then any event that would have been observable on inspection by the architect and must be taken to have been taken into account when certifying progress claim 11 so the claim would fail on this basis as well.

Item 55: Pool fence

The owners allege that the pool fence as provided by the builder does not comply with Australian Standards and they require a pool fence to be installed which does so.
In Mr Theodoro's report, he states that the gate for the swimming pool does not comply with the Australian Standard for pool fencing and refers to AS 1926.1 Part 1: Fencing for Swimming Pools, the horizontal members being only 730 millimetres apart instead of 900 millimetres as specified by the Australian Standard.
The pool fencing has been constructed out of timber as required under the contract. The vertical sections are very closely spaced so that it would be impossible to gain any foothold or handhold on the parallel members which have been fitted on the inside of the pool gate and fence.
Mr Marrapodi stated that he understood that the Australian Standard applied in respect of tubular fencing which was spaced so that it would be possible to get a foothold or handhold on to the horizontal members and that it was for that reason that the horizontal members had to be at least 900 millimetres apart.
We have not been provided with a copy of the Australian Standard and we cannot therefore arrive at any proper construction and application of it. We do not consider that the owners have discharged the onus on them in respect of this claim and it will be dismissed.

Item 56: Decking

This complaint relates to a small number of screws which have been countersunk in the decking. The owners also complain about misalignment of screws and refer to photographs 7 and 8 attached to Mr Theodoro's report, from which it can be observed that screw fixings have not been properly aligned. Mr Theodoro's report reflects that there are two to three screwheads which protrude over the surface, although that cannot be readily observed from the photographs.
Mr Marrapodi contended that this represented incomplete work because the decking had only been certified to a level of being 75% complete. The certification suggests that there is additional decking work to be done, or that there was, as at the date of certification. However, we cannot accept that the builder had any intention of uplifting the decking and replacing it so as to ensure that the screws were properly aligned. We consider that this decking was presented as completed work and that in the circumstances it is defective. However, the defects were observable and should have been identified in any reasonable inspection carried out by the architect so that it must be taken that the cost of remedying the defects is included in the certifying of progress payment claim 11. The claim will accordingly be dismissed.

Item 57: Carpentry

The owners claim that the builder should be obliged to make good a wall and install skirting to match existing in the vicinity of some stairs as shown in the photographs appearing at HB 67.
There were alterations made to the stairs in circumstances which are disputed by the parties. Mr Whelan suggests that the height of the risers of the stairs was incorrect. Mr Marrapodi says that Mr Whelan was not happy with the finish of the stairs at the corner.
On either basis, the builder was not presenting the work concerned as being completed. Mr Marrapodi expressly stated that he was always aware that there was going to be skirting installed and that the work was simply incomplete. We accept that to be the case and the claim will accordingly be dismissed. If we are wrong in that conclusion, and the work is regarded as defective then the cost of the remedial work should have been taken into account in certifying progress payment claim 11 so that the claim would fail on that basis.

Item 58: Carpentry

This complaint is that the builder should supply and install quads to the skirting throughout to match the existing.
Mr Whelan referred to photographs 82 and 83 attached to Mr Theodoro's report (HB 91) which show that quads were installed on the existing skirting boards but not the new skirting boards installed by the builder. Mr Marrapodi referred to the Addendum (HB 421) which did not include pricing for the provision of any quads. He stated that some people did not like quads or quarter rounds and if the architect was dissatisfied with what had been supplied, he queried why the architect had certified that 100% of mouldings had been completed.
We would ordinarily expect that, in a renovation, the builder would be expected as far as possible to match existing features in completing the new works. However, in this instance, the Addendum reflects the skirting to be provided and gives its dimensions without reference to any quarter rounds or quads. Mr Whelan acknowledged that the Addendum had been added as one of the contract documents because it reflected the builder's pricing.
In the circumstances, we consider that if the architect required quads to be installed, the builder would have been entitled to a variation to the contract sum. We find that the architect was satisfied with the skirting as installed because 100% was certified in respect of mouldings and accordingly the evidence does not support this claim which will be dismissed.

Item 62: Return air grille

The owners assert that the builder should be obliged to reinstate the airconditioning return air grille opening to suit the existing grille and should replace the existing return air grille damaged during the works. Mr Whelan referred to photograph 63 attached to Mr Theodoro's report. The caption to the photograph suggests that the airconditioning inlet air grille was removed by the builder but was placed incorrectly with a gap being left in the ceiling that was never repaired.
Mr Marrapodi responded that the airconditioner had not been part of the contract and that he knew nothing about the hole which had not been done by the builder.
There is no contractual obligation imposed on the builder in relation to the removal or replacement of the return air grille. If, as alleged by Mr Whelan, an obligation was imposed on the builder to do so, that must be by way of variation to the contract and it was within the power of the architect to ensure that it was properly documented. We do not consider that this complaint has been established on the evidence and it will accordingly be dismissed.

Items 67, 68, 69 and 70: Demolition

The owners complain that the builder is obliged to demolish the concrete paving as documented.
Mr Whelan referred to the concrete pathway shown in the photographs at HB 27 which he alleged still had to be demolished, as well as the outside fence as shown therein. He also referred to observations 2, 3 and 4 marked on the plan (HB 189) which showed demolition still to be completed.
Mr Marrapodi did not dispute that this work remained to be done. He pointed out that siteworks had been certified to only 90% complete which reflected this outstanding work. He also pointed to a quotation obtained by the owners for some $2,090, which was not out of keeping with the $1,739 of siteworks valued under the contract which still had to be done.
There was some considerable disputation about whether this demolition work could have been done at the same time as when the garage and other siteworks had been carried out. Mr Marrapodi contended that it was necessary to plan the demolition in stages because of access issues. Mr Whelan contended that it could all have been done at the same time.
It is not necessary to resolve this dispute. It must be manifestly clear that the demolition work concerned still had to be done and that should have been apparent on any reasonable inspection. In any event, there was still 10% of siteworks which had to be completed in accordance with the certification issued by the architect. It is clear, therefore, that this represented incomplete work and we find accordingly. The claim will be dismissed.

Item 71: Cabinetwork

The owners allege that the builder is liable to complete the splashback in the kitchen.
Mr D'Amelio was called by the owners to give evidence on their behalf. He was the contractor employed by the builder to provide benchtops and splashbacks in respect of the works. His evidence was largely irrelevant, relating to issues about payment for the work carried out. What is clear is that because of non-payment, he did not complete the splashbacks.
Mr Marrapodi clarified that he had not paid Mr D'Amelio in full because the builder had not been paid. That, too, is strictly irrelevant.
What is clear is that there is no suggestion that any of the work carried out is faulty or unsatisfactory. This is work which, if the contract had been properly performed by both parties, would have been completed in the ordinary course. It is incomplete work. The owners' claim will accordingly be dismissed.

Item 72: Driveway

The owners claim that the builder is obliged to bear the cost of having the driveway sealed.
On Mr Whelan's own evidence, this claim relates to incomplete work. Mr Whelan explained that there was a variation to the contract to provide for extra paving in respect of the driveway but the work was not completed. He complained that, notwithstanding this, the Tribunal had awarded the builder the amount of the variation.
We are unable to discern, from a reading of the reasons for decision in Stonehenge 1, whether the builder was paid for sealing the driveway. In any event, if that decision was wrong, then that aspect of the matter should have been the subject of an application for review. We can only deal with the claim which is presented to us.
Mr Marrapodi stated that he had sealer delivered to the site and that it was in the garage at the time of termination of the contract.
This claim must be dismissed as it relates to incomplete work.

Orders

The issue of liability in respect of the various claims having now been determined, it is necessary for the matter to be listed for a directions hearing so that, if it is necessary, the matter can be programmed to a hearing to determine the quantum of those claims in respect of which it has been found that the builder is liable to the owners. That will be reflected in the orders to be issued by the Tribunal.
Further, based on the above reasons, the Tribunal will issue orders as follows:
1.It is determined that the respondent is liable to the applicants in respect of the following claims, or part claims:
(a)item 4 to the extent that it refers to the omission of brickwork on a pier on the pool wall; and
(b)items 49, 51 and 52.
2.By consent, that the respondent shall use its best endeavours to ensure that on or before 15 February 2016:
(a)in respect of item 5, it obtains from its relevant contractor the notice evidencing the termite treatment provided to the applicants' property at 20 Highbury Street, Floreat and, in turn, that the respondent provides that notice to the applicants;
(b)in respect of items 8 and 11, its relevant contractor provides to the Water Corporation as constructed drawings of the sewer and drainage services installed at the applicants' said property.
3.The applicants are granted leave to withdraw claim items 12, 13, 14, 15, 16 and 34, and those and all other items of claim, including the remaining parts of item 4, are dismissed.
4.The matter is listed for a directions hearing on 2 February 2016 at 9.30 am.

I certify that this and the preceding [184] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR C RAYMOND, SENIOR SESSIONAL MEMBER