Willis and Fletcher - [2015] WASAT 95

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

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

CITATION: WILLIS and FLETCHER [2015] WASAT 95

MEMBER: MR C RAYMOND (SENIOR SESSIONAL MEMBER)

HEARD: 2 JUNE 2015

DELIVERED : 31 AUGUST 2015

FILE NO/S: CC 334 of 2015

BETWEEN: LEONARD WILLIS
Applicant
AND
BRADLEY JOHN FLETCHER
Respondent

Catchwords:

Building Services (Complaint Resolution and Administration) Act 2011 (WA) Application for leave to apply for internal review under s 58(2) Criteria for grant of leave Whether Tribunal erred in finding that painting work was not carried out in a proper and proficient manner or was faulty or unsatisfactory Whether respondent complied with relevant standards applicable to nature of work Whether Tribunal erred in finding that respondent warranted that the surface was suitable to undertake painting work

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5, s 5(1), s 58(2)
Building Services (Registration) Regulations 2011 (WA), reg 31

Result:

Application for leave refused

Summary of Tribunal's decision:

The applicant applied for leave pursuant to s 58(2) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) to review a decision by the Tribunal made on 12 February 2015 in terms of which the applicant was held liable to the respondent for certain painting works having not being carried out in a proper and proficient manner or being faulty and unsatisfactory.
After consideration of all the grounds of review and the submissions made in support thereof, the Tribunal concluded that it had not been demonstrated that there was an arguable case that the original Tribunal had erred, or that there was any sufficient doubt as to the correctness of its decision, and, consequently, that no substantial injustice would result if leave were not to be granted.
The application for leave was accordingly dismissed and the matter listed for a directions hearing to enable the matter to be programmed to a final hearing on the question of quantum.

Category: B

Representation:

Counsel:

Applicant: Mr A K Searle
Respondent: In Person

Solicitors:

Applicant: Searle Lawyers
Respondent: N/A

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

Filimon and Rimmer [2013] WASAT 13
Goldfields Homes Pty Ltd v Blacker [1999] WADC 71
Lyons & Anor v Jandon Constructions, unreported SC of WA Library No 980394 dated 20 July 1998
Myran Holdings Pty Ltd and Bombak [2013] WASAT 20
Vulin and Bamboozle (WA) Pty Ltd T/as Bamboozle [2014] WASAT 55
Waldron and Afra Construction Pty Ltd [2013] WASAT 207

REASONS FOR DECISION OF THE TRIBUNAL:

The application for leave to review

On 12 February 2015 the Tribunal, constituted by senior sessional member Ms K Lang and sessional member Mr P Mittonette, delivered reasons for decision finding that Mr Leonard Willis, a painting contractor, was liable in respect of a complaint made by Mr Bradley John Fletcher that Mr Willis had carried out certain painting services for Mr Fletcher at 47 Orangedale Road, Lesmurdie, in the State of Western Australia, in a manner which was not proper and proficient or was faulty or unsatisfactory (within the meaning of those terms as used in s 5(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) (original decision)).
The determination of the quantum of the remedial costs claimed by Mr Fletcher has been held over pending an application made by Mr Willis pursuant to s 58(2) of the BSCRA Act for leave to review and for the review of the original decision. Mr Willis is hereinafter referred to as 'the contractor' and Mr Fletcher is referred to as 'the owner'.

The proposed grounds of review

The proposed grounds of review are as follows:
1)The original Tribunal erred in fact and law by finding that the contractor's workmanship was not carried out in a proper and proficient manner or being faulty or unsatisfactory when it should have found:
a)the contractor complied in all respects with the relevant standard, applicable to work of this nature; and
b)liability of the contractor did not arise in the circumstances.
2)The original Tribunal erred in law when it found that, by the act of applying paint to a surface, the contractor warranted that the surface, in this case, was suitable to undertake the painting work, when the original Tribunal should have found that it was reasonable for the applicant to have undertaken the painting work, notwithstanding that the surface may have been unsuitable or contained an underlying defect, and that the contractor's investigations and examinations in relation to the surface prior to the application of paint was sufficient to discharge his obligations pursuant to s 5 of the BSCRA Act.

The criteria for the grant of leave

In Myran Holdings Pty Ltd and Bombak [2013] WASAT 20 (Bombak) at [8] the Tribunal set out the following criteria for the grant of leave as extracted from the comprehensive consideration of that matter in Filimon and Rimmer [2013] WASAT 13 (Filimon):
The following principles can be gleaned from the discussion of the applicable criteria for the grant of leave to review under s 58(2) of the BS(CRA) Act as discussed in Filimon and Rimmer [2013] WASAT 13:
1)It is necessary to show that the decision of the original Tribunal was wrong or attended with sufficient doubt.
2)It must be shown that if leave were not to be granted, the applicant would suffer a substantial injustice.
3)It will normally not be sufficient that the decision appealed from is apparently wrong or attended with doubt. Something more will need to be shown, such as that there is a significant question of law to be considered, or some other feature, which requires the consideration of the Tribunal to avoid a substantial injustice of leave were not to be granted.
4)The decisions of the original Tribunal are not to be read minutely and finely with an eye keenly attuned to the perception of error.
5)A broad view should be taken of all the material before the original Tribunal, and this Tribunal should be slow to grant leave to review or to allow reviews except in cases where, clearly, there is no discernible basis for the decision or, for example, where fundamental rules of natural justice have been breached.
6)Leave may be granted in respect of only some and not other grounds of the proposed review.
7)Having regard to the objects of the Tribunal, and because any review is by way of a hearing de novo, there is all the more reason to be particularly discerning about whether sufficient doubt exists to open the possibility of leave being granted.
8) In considering challenges to the weight of evidence, regard must be given to the expertise of the members of the original Tribunal.
The above criteria must, of course, be read in the context of the recognition in Filimon at [10] that the Tribunal in any event has a broad discretion to have regard to other features which might require consideration in order to avoid a substantial injustice.

The reasons for decision of the original Tribunal

The reasons record that each party called two expert witnesses who both testified at length. Evidence was also provided by two Building Commission inspectors and both parties testified. The two independent experts called for the owner, as reflected in the reasons, were Dr Zurhaar, a chemist and a material scientist, and Mr WJ Tyler of Plastering Assessment and Advisory Services. The independent experts who testified for the contractor were Mr Peter Wrobel, an industrial chemist, and Mr Neville Hugh Eastabrook, a registered painter and decorator.
The Building Commissioner inspectors who gave evidence were Inspector Peter O'Dea, whose evidence supported the owner, and Mr David Anderson, a senior painting inspector whose evidence favoured the contractor.
The reasons reflect that the owner testified that he first noticed problems with the internal paint service shortly after handover when he inadvertently removed the paint with masking tape. The owner repaired the damage. Other areas (where problems were experienced with the painting) were ignored for a time. The owner's wife used touch up paint when blisters or holes in the paint appeared. About two years later, the owner had more and more concerns with the paint coming away from the walls too easily, but due to personal issues, he did not make a complaint for some time. The complaint is one of broad scale, lack of adhesion of the paint formed to the plaster coat throughout the house.
The reasons reflect that all witnesses except Mr Wrobel inspected the site, and that all witnesses, except for the now retired Senior painting inspector Mr Anderson, and the contractor, agreed that there is a lack of adhesion between the plaster and the paint.
Senior Inspector Anderson was of the view that the house only displayed fair wear and tear; however, in the light of the expert consensus of opinion as to the existence of a paint adhesion defect, the original Tribunal did not accept Inspector Anderson's evidence. The reasons record that the original Tribunal was not persuaded by the contractor's evidence that there was only a small defect in the paint surface under a picture when he attended the site for a mediation shortly prior to the original hearing. The original Tribunal found that the correct situation was as described by Inspector O'Dea in his report:
Several instances of missing paint or touch ups by the owner, random blemishes of up to 50 millimetres in diameter from 200 mil [sic] to 2100 mil [sic] above floor level. Paint was easily removed by light pressure of a fingernail.
Reference was also made to a report from Dr Zurhaar which reflected that whilst there is some evidence of the paint damage from wear and tear, the complaint relates to broad scale lack of adhesion of the paint formed to the plaster coat throughout the house and that 'this poor adhesion is present in wall areas and in areas that are undamaged by physical contact'.
The original Tribunal expressly found that the paint has blistered throughout the house in both high traffic and low traffic areas and that paint will readily dislodge from the plaster substrate with contact, and that having considered all of the expert evidence, the original Tribunal was satisfied that there is unsatisfactory adhesion of the paint to the set plaster.
The reasons then turn to consider whether or not the contractor was responsible for the adhesion failure.
The reasons record that the witnesses nominated a variety of causes of the adhesion failure being:
1)moisture levels in the masonry substrate;
2)high alkaline levels in the plaster;
3)inappropriate sealer or inadequate sealer application; and
4)inadequate depth of white set plaster coating.
The reasons note that the majority expert opinion is that moisture was retained in the walls during construction and that this caused or contributed to the adhesion defect. Reference was made to the reports of Mr Wrobel and to the evidence of Dr Zurhaar both referring to the likelihood of excessive moisture content. Reference was also made to Dr Zurhaar's report and to the report of Mr Tyler, all to the same effect.
The reasons reflect that the plaster coating was applied to the walls approximately four months before the contractor painted the walls, which would usually be sufficient time for the plaster to cure. Although the owner and his experts suggested this was a wet winter build, the contractor disputed the submission in the absence of specific evidence of rain on the construction site. Reference is then made to page 140 of the hearing book (Exhibit 1) which is a copy of the Solver Paints product information sheet ss108, which reflects that all new masonry walls contain moisture and directs painters to conduct five preliminary tests. An extract from the information sheet was quoted as follows:
Before painting new plaster walls, sufficient time must be allowed for them to thoroughly dry. Not only is there water in the plaster, but also in the masonry wall which the plaster has been applied. Drying can take up to six months. We can assist in determining when the wall is sufficiently dry and, unless the wall shows less than a 16% moisture content reading on a moisture metre test, painting should be delayed. If the paint is applied over a damp surface or substrate, blistering or peeling may result.
The reasons reflect that the original Tribunal rejected the contractor's contention that the product sheet only applies in circumstances where problems are already detected. That conclusion is rationalised firstly by an interpretation of the information sheet and also based upon Mr Wrobel's evidence to the effect that the manufacturer's instructions should have precedence over all standards and should be adhered to by every tradesman. Further, reference was made to a copy of the 2000 edition of the Australian Standard 2311 guide to the painting of buildings', section 3, preparation of unpainted surfaces (Exhibit 5).
The standard at section 3.10.1 is quoted as follows:
When painting set plaster, account should be taken of its inherent differences for most other substrate. There is a range of factors that may require attention prior to painting. In the period following the setting of the plaster, residual moisture, alkalinity and efflorescence may need to be considered. Even when the plaster has been stabilised by time, moisture may have ingressed through structural or design failure, and deficiencies in the soundness, cohesion and adhesion may have developed.
Section 3.10.2 of the standard referring to moisture level is also quoted:
Before painting, especially where solvent-borne paints or other relatively impermeable coatings are to be applied, it is advisable to test the plaster with a moisture metre to ensure that the moisture content of the surface does not exceed the acceptable limits for painting.
Further reference was made to Mr Wrobel's report at page 35 of the hearing book where he states:
It is unreasonable to assume that a professional painter would ignore the first rule of surface preparation. That is, ensure all surfaces are clean, sound and dry.
The reasons outlined that the contractor did not carry out any moisture measurement but presumed that the walls were dry, given the length of time that had elapsed and after looking at and touching the surface.
The original Tribunal concluded that it was satisfied that the contractor, as an experienced and registered painting contractor, was aware of the potential risks of residual moisture in the newly constructed masonry walls. Reference was made to the contractor having testified that he did ask the builder's onsite supervisor to leave the windows open during construction to dry the walls thoroughly before he painted, but the house was locked up, which was not the correct way to ventilate the building.
The original Tribunal went on to state:
It is well understood that a painter in commencing to paint a surface accepts that surface and warrants it suitable for the application of the paint. And this is-words to that effect appear in the standard 2311 at 2003.1. By failing as many painters may do, to take the very simple precautions indicated in both the Australian Standards and the manufacturer's information and recommendations, the respondent painter exposed himself to a risk of future complaints such as this.
The original Tribunal concluded that having considered all of the evidence, it was satisfied that the primary cause of the failure of the adhesion was the existence at the time of painting of a high level of residual moisture in the mortar wall and that this failure is the responsibility of the contractor.
The reasons went on to address other potential causes that were raised by the expert witnesses. The first of these was that the plaster contained too high a lime content. The reasons reflect that the owner disputes this, and refers to various paint touch ups which have adhered satisfactorily. In addition, reference is made to a further report from Dr Zurhaar at pages 133 to 136 of the hearing book (the reference is incorrectly made to page 166). The reasons then reflect the conclusion that the original Tribunal was:
satisfied on the evidence that the plaster was highly alkaline at the time of painting and refer, for example, to the reports of [Mr Wrobel] [Dr Zurhaar] and the SGS analytical report. This was likely to have contributed to the moisture problem, as a high lime content will retain water, affect the firmness of the plaster and reduce the adhesion of the paint to the plaster. Again, the painter failed to undertake the straightforward litmus test provided by Solver Paints in the product information sheet at page 41 of the hearing bundle[.]
The reasons reflect the conclusion that the original Tribunal is satisfied that this too was the responsibility of the painter for failing to ensure the suitability of the plaster surface by following the manufacturer's testing regime or of the Australian Standard recommended test prior to painting.
The reasons then proceed to canvas the effect of the sealer as applied and a suggestion by the owner's experts that the sealer used might only be suitable for moderately alkaline surfaces. The reasons reflect that the original Tribunal was not aware, on the available evidence, of the consequences of using the relevant sealer, or if alternative products were available, but considered it was not necessary to determine this point in the light of its earlier conclusions. Reference was made to the evidence of Dr Zurhaar who reported that the contractor had applied one-third less than the recommended quantity by thickness of sealer to the plaster. In addition, reference was made to Dr Zurhaar having established, under microscope and through the use of tape, that the sealer did not penetrate the plaster. The reasons record that the contractor disputed this and submitted that he had applied a normal amount of sealer which was absorbed due to the excess moisture in the wall.
The original Tribunal recorded that it was persuaded by Dr Zurhaar's evidence and found that the contractors under-application of sealer was also a factor in the failure of the adhesion.
The reasons for decision then proceed to address the issue of the thickness or chalkiness of the plaster set coat. Inspector O'Dea had reported that he observed the white set plaster coating to be 1 millimetre thick in the study. The Australian Standard guide to plastering indicates plaster should be a maximum of 3 millimetres thick. After referring to the evidence of Inspector O'Dea and Mr Eastabrook, as well as the minute of the joint expert report following conferral, the original Tribunal concluded that painters are required by the Solver Paints product information sheet to test the condition of the substrate with clear tape and the softness of the plaster with a thumbnail, and that a painter must not accept a soft and chalky surface for painting without treatment. The reasons observe that the contractor did not undertake such a test prior to painting. Further, the conclusion of the original Tribunal is reflected that the observation of Inspector O'Dea at one location did not amount to sufficient evidence that the plaster depth is too thin throughout. Accordingly, the original Tribunal expressed that it was not satisfied to the requisite standard that the chalkiness or softness of the plaster is a factor in the general lack of adhesion.
The original Tribunal concluded finally that by ignoring the Australian Standards and the Solver Paints product information sheet, the contractor had failed to identify the existence, on this occasion, of the known risks of residual moisture and excess alkaline. The contractor had also failed to adequately apply sealer to the plaster. The original Tribunal observed that it is a basic building principle that the painter, in applying paint to a surface, warrants that the surface is suitable for the purpose, and as the wall was not suitable for painting at the time, the Tribunal found the painter liable for the defect.

The original Tribunal in its reasons for decision noted that the contractor and his experts argued that he was not required to identify the residual moisture prior to painting, as this was beyond his skills and responsibilities. It was also noted that Mr Eastabrook in particular contended that the contractor could not be held responsible for ascertaining that the plaster was soft or chalky as a result of the final set coat being too thin because this was a factor which he considered the contractor could not reasonably have known.

Consideration of proposed grounds of review

Ground 1:

Did the original Tribunal err by finding that the contractor's workmanship was not carried out in a proper and proficient manner or was faulty or unsatisfactory when they should have found that:
a)the contractor had complied in all respects with the relevant standard applicable to work of this nature; and
b)liability of the contractor did not arise in the circumstances.

The contractor's initial submission is that the cause of the paint failure moreover, whether there is a paint failure at all-is clearly controversial. It is then submitted that the owner carried the burden of proof to establish, on a balance of probabilities, that the proposition he put to the Tribunal is supported by sufficient facts to enable the Tribunal to find that it is more likely than not that the cause of the damage to the paint is a result of a condition of the plaster, which, if proper testing had been carried out by the applicant, would have been detected, or alternatively, the paint application was defective and not simply ageing. Further, that the contractor was not obliged to identify the actual cause of the defect or to conduct tests on the property of the owner and that, therefore, nothing turns on the failure of the contractor's experts to attend the site, nor is there an obligation on the contractor to have conducted its own tests of possible sources of the paint failure or if, indeed, there was such a failure.
All of these submissions, save for the very initial one, may be readily accepted. Whether the initial submission as to any controversy of the cause of paint failure, or whether there is a paint failure at all, needs to be weighed in the light of all submissions and on consideration of the original Tribunal's reasons for decision and the evidence which was before it.
The contractor's submissions address firstly, ground 1(b) with reference to the issue of whether the defects complained of were simply wear and tear. This was the view of the former senior inspector Anderson. He expressed the opinion that the affected areas were showing evidence of normal family living activities, such as the use of low adhesive masking tape, blu-tac and general knocks of furniture from vacuum cleaners and the like, normally associated with fair wear and tear after approximately five years living in the property.
Mr Anderson's description of the affected areas, as set out in his report of 20 September 2013, is very general; namely, that there were various walls around the house which appeared to have areas which had been damaged, resulting in the paint coating being broken and exposing the bare plaster.
The owner was dissatisfied with Mr Anderson's report and a further inspection was subsequently carried out by Inspector O'Dea. Inspector O'Dea was far more detailed in his description of affected areas as being several walls and living areas, passageways, bedrooms and the study of the dwelling. He described that the walls included several instances where paint was either missing or had been touched up, and that the location of the blemishes appeared random in their manifestation, being anywhere from within 200 millimetres of floor level to 2100 millimetres above floor level, and also in both high and low traffic zones. There were instances where the surface of the wall painting included blistering up to approximately a 50 millimetre diameter. There were instances where paint was missing generally up to approximately 25 millimetres in diameter, with the leading edge of paint being easily removed by light pressure of a fingernail. Inspector O'Dea acknowledged that the complainant advised that in some instances, the wall paint had been damaged by normal wear and tear, and also affected by adhesion of posters, by 'blu-tac', and as such, it was acknowledged that all instances of missing and damaged wall paint might not necessarily be related to the complaint issue.
In addition, it must be noted that there was never any challenge to the owner's evidence as to the time and frequency of instances involving damage to the painted wall surfaces. As reflected in the reasons for decision referred to above, the first of these events occurred shortly after handover and continued with the owner's wife using touch up paint when blisters or holes in the paint appeared. The owner's concern was heightened about two years later.
Inspector O'Dea also referred to the SGS analytical report, the findings of which were accepted by all of the experts as demonstrating that the plaster mix used would have had an alkalinity level higher than that which would follow from use strictly in accordance with the manufacturer's recommendations. The effect of high alkalinity falls directly and most appropriately within the expertise of Dr Zurhaar and Mr Wrobel, both of whom agreed that it would result in retention of, to adopt the evidence of Mr Wrobel:
sufficient crystallised water to disallow the penetration of the solventbased sealer.
(T: 59; 05.02.15)
The evidence shows that all of the experts, except Mr Anderson, accepted that there was probably a problem with the plaster at the time when painted by the contractor. The controversy is whether the contractor should have identified that problem and taken necessary action which would have resulted in paint being applied which would then not subsequently fail.
Counsel for the contractor has endeavoured to rely on a statement of evidence of a Mr Alan Walters, which would be used in the review if leave is granted to show that there is a body of opinion that the durability of interior painted finishes is possibly no more than 36 months. That evidence is relevant to a consideration of whether there would be a substantial injustice if leave were not to be granted.
However, on the evidence that was before the original Tribunal, the problems with the painting had manifested itself from a very early stage. That evidence cannot be artificially considered in isolation. It must be considered also with the evidence that the appropriate experts agreed that the plaster had a high alkalinity level and would therefore have retained moisture which would have adversely affected the effectiveness of the solvent based sealer which was used on the walls.
Consequently, it was inevitable that the paint was going to fail, regardless of wear and tear. The real issue still to be examined is whether the original Tribunal was correct in its finding that the contractor should have carried out adequate testing to ensure that the plaster was dry before commencing painting. While wear and tear might have resulted in visible damage from time to time, the effect of the failure of the sealer to penetrate and bind properly is, as was described by Dr Zurhaar in his evidence, that the paint is:
sitting there as an envelope … and that the moment anything breaches the film you could pull it off in large sections. And that ought not to be the case.
In these circumstances, if leave to review is refused, or if granted and the review is unsuccessful, the Tribunal hearing the matter will need to determine what effect, if any, ordinary wear and tear has had on the paintwork.
It is then submitted for the contractor that the remedy sought, which would require removal of paint, preparation of the surface and repainting of the whole house, is so extreme that the painting industry needs certainty to clarify its responsibilities, particularly in the light of the body of evidence to which Mr Walters refers. To the extent that the submission is dependent on the anticipated durability of interior paint finishes, I do not consider this is a relevant factor in the circumstances outlined above. Fair wear and tear is not a relevant consideration in relation to the question of whether the contractor is liable as a result of the condition of the plaster when the painting work was carried out.

Ground 1(a)-Did the respondent comply in all respects of the relevant standard, applicable to work of this nature

The contractor submits that the original Tribunal considered that the majority expert opinion was that a high moisture content of the plaster at the time of painting contributed to the adhesion problem but that this observation is not supported by the evidence.
The essential basis for this submission is that the contractor contends that Dr Zurhaar carried out no independent tests to confirm that the plaster had a high moisture content, but relied on the unidentified and uncontrolled samples provided to SGS. Further, that Mr Wrobel did not independently inspect the works or do any testing to confirm an underlying damp condition.
As outlined in dealing with ground 1(b), the views expressed of the appropriate expert witnesses were that the plaster retained an excessive amount of moisture due to the high alkalinity levels. That follows as a result of the proportion of gypsum to lime in the mix of the plaster, and is supported by the high pH disclosed in the SGS test. While it is true that there is no certainty as to where the samples came from which were used by SGS, that is not true in relation to the samples which were tested by Dr Zurhaar in order to ascertain the gypsum to lime ratio. The gypsum to lime ratios are relatively consistent in relation to the samples taken from the lounge, home office and bedroom two. Although Dr Zurhaar contended that these ratios were largely in line with those used in practice by plasterers, he conceded that plasterers endeavour to use a higher lime content in order to improve the workability of plaster and that these ratios were not in accordance with the manufacturer's recommendations.
There are therefore two sources pointing to a high alkalinity level.
Mr Wrobel initially criticised Dr Zurhaar's first report dated 27 August 2014 because he considered Dr Zurhaar had not represented correctly the ratios to which gypsum and lime should be mixed for plastering walls. Mr Wrobel's criticisms are contained in his report dated 27 November 2014. Dr Zurhaar provided a supplementary report, which is dated 19 January 2014, but it is obviously responsive to the criticism raised and must be wrongly dated.
It is evident that if any issue had been raised about the extent to which the SGS samples were truly representative, this could have been addressed by the owner prior to the hearing, if need be by having further samples tested. The issue was simply never raised and the entire matter was conducted on the basis that there was no challenge to the SGS findings. The matter is raised for the first time in this application for leave to review, and that is not appropriate. On the evidence before the original Tribunal and having regard to the way in which the case was conducted, no error is demonstrated.
Apparently to support the submission that there was insufficient evidence to find that the render retained moisture due to high alkalinity levels, it is submitted for the contractor that the Tribunal dismissed Inspector O'Dea's view that the plaster was too thin. The original Tribunal concluded that the observations of Inspector O'Dea at one location that the plaster was approximately 1 millimetre thick did not amount to sufficient evidence to establish the plaster depth as too thin throughout.
The two situations are obviously different. The case had been conducted on the assumption that the SGS results were representative, but that was not the case in relation to the thickness of render issue. In any event, the evidence was that if the render was not thick enough, it would lead to it being soft and chalky. That simply means that there was something wrong with the render for another reason. It would not mean that the contractor was not liable, which would be dependent-as is the high moisture content issue-on the extent to which the contractor was required to examine or test the render before painting.
Contrary to the contractor's submissions I do not accept that on a balance of probability, the original Tribunal was in error to conclude that the paintwork was defectively applied over a moist surface. That raises the next issue to which the contractor's submissions were directed;namely, the relevant standard to be applied, as raised by ground 2.

Ground 2

The first issue raised by the contractor's submission is that the original Tribunal expressed itself in terms that the painter, in applying paint to the surface, warrants the surface is suitable for the purpose.
In preliminary submissions, counsel for the respondent referred to Waldron and Afra Construction Pty Ltd [2013] WASAT 207 (Waldron) in support of a submission that the determination of liability, on the basis that work was not conducted in a proper and proficient manner, imposed a higher standard of skill and care on a registered builder than on a tradesman or contractor. Further that reg 31 of the Building Services (Registration) Regulations 2011 (WA) does not require qualifications for registration of a painter which require expertise in order to be eligible to work in the profession. This submission is not accepted. The academic qualifications and degree of experience prescribed are commensurate with the nature of the vocation. Registration as a painting contractor requires that an applicant achieve the requisite certificate in painting and decorating, complete an apprenticeship in painting, and have experience in carrying out painting work, for periods totalling at least the equivalent of four years' fulltime, covering a significant range of painting techniques. In order to avoid liability under s 5 of the BSCRA Act for failing to carry out work in a proper and proficient manner, the registered painting contractor must apply a degree of expertise as contemplated by the ordinary meaning of the word 'proficient' on the same reasoning given in Waldron.
The passages of the reasons for decision on which the contractor relies reflecting that a painter warrants the surface once paint is applied to it do, I consider, reflect an overstatement. However, read in the context of the reasons for decision as a whole, the basis upon which the original Tribunal held the contractor liable is, I think, more than sufficiently clear. The contractor was found liable because, primarily, the render was held to have too high a moisture content and also because it had too high a ratio of lime to gypsum at the time the paint was applied and the testing carried out was considered to be inadequate. I do not consider that the original Tribunal was endeavouring to convey that a painter would be liable for the consequences of a failure of the paint surface in circumstances in which, absent any fault in application or failure of the paint itself, a painter had carried out all necessary tests to identify problems which would have to be addressed in order to ensure the proper application of paint.
The contractor has not challenged the original Tribunal's rationale for concluding that the contractor was liable to follow the recommendations of the manufacturer of the sealer and the relevant Australian Standard, but makes two discrete and specific submissions.
The first is that it is submitted that it is speculative to assume that the painter was negligent because he did not conduct a moisture metre test, when it was admitted by Dr Zurhaar that a surface moisture reading was no longer relevant. Further, that to the contrary, because no actual moisture value can be established at the time of the painting, it does not follow that had the painter done a moisture test, the value would have been high enough to warn him of the consequences of any impending paint application.
With respect, these submissions have no substance. All that Dr Zurhaar was referring to was that because of the time which had elapsed, no current moisture readings would assist. He relied on the SGS report establishing high pH levels, and later, an acceptance that the proportion of lime used was on the higher side, to opine, as was accepted by the original Tribunal, that the moisture levels must have been too high at the time. The proportions of gypsum to lime were established and would not have altered, but it was expected that the pH levels would drop over time, and as the level was too high even when tested by SGS, the conclusion reached by the original Tribunal follows as a matter of logic.
Secondly, it is submitted that the conducting, or not, of a test prior to painting is not relevant to the making out of a complaint under the BSCRA Act, relying on Vulin and Bamboozle (WA) Pty Ltd T/as Bamboozle [2014] WASAT 55 (Bamboozle). In Bamboozle, which related to a complaint that a bamboo floor had been laid on a concrete floor holding residual moisture, the Tribunal found that there was no evidence of any test having been carried out, and simply concluded that the failure to carry out moisture testing did not necessarily establish liability under s 5 of the BSCRA Act. The Tribunal went on to find on the facts that the moisture present was not likely to be any residual moisture but was most probably due to a dynamic source such as a pipe leaking. There was no plausible explanation as to why moisture levels in an old section of concrete were found to be higher than the new concrete over which the floor had been laid. The case is clearly distinguishable. In this instance, the original Tribunal relied on specific manufacturer's recommendations and on an Australian Standard with which the contractor had not complied, and there was sound evidence on which the original Tribunal could base its conclusion that residual moisture was present in the render when the painting was applied.
I do not consider that it has been established that the original Tribunal erred, or that there is sufficient doubt that it might have erred, in applying the wrong standard to a claim made under s 5 of the BSCRA Act.

Conclusion

For the reasons given above, I do not consider that it has been demonstrated that there is sufficient doubt that the original Tribunal is in error on the grounds advanced for the proposed review, and consequently, the question of any substantial injustice if leave were not to be granted does not arise.
It is obvious that the effect of the original decision may well have an impact on the current practices followed by many painting contractors. The divergence of views expressed by the expert witnesses for the respective parties concerning whether it is appropriate to carry out specific tests may well reflect the expanding burden placed on almost every profession and vocation in an ever increasingly complex world. According to Dr Zurhaar's evidence most builders are today excluding interior painting from their contracts because of difficulties experienced with plastering products and the risk of delay before painting can be completed and their contractual obligations discharged.
As Mr Wrobel testified, it has always been the responsibility of the painting contractor to ensure that the surface to be painted is clean, sound and dry. As new products are developed, the procedures recommended by manufacturers will place particular obligations on those who use their products and Australian Standards will reflect necessary changes in procedures to be followed to ensure those products are properly applied. Failure to comply with those procedures will inevitably carry risks of potential liability. Australian Standards are not in themselves coercive, but non-compliance may be prima facie evidence of a failure to provide a regulated building service, including painting, in a proper and proficient manner, or that the service is faulty or unsatisfactory: see Lyons & Anor v Jandon Constructions, unreported SC of WA Library No 980394 dated 20 July 1998 at page 9; Goldfields Homes Pty Ltd v Blacker [1999] WADC 71 at [58] - [59].

The original Tribunal held over the determination of any monetary compensation to which the owner may be entitled, pending the determination of these proceedings. In the circumstances, it will be necessary for the matter to be listed for a directions hearing to enable the matter to be programmed to a final hearing on that issue.

Orders

The Tribunal will accordingly cause orders to issue as follows:
1.The application for leave to review is dismissed.
2.The Matter CC 873 of 2014 is listed for a directions hearing on 22 September 2015 at 9 am to enable the matter to be programmed to a final hearing on quantum.

I certify that this and the preceding [64] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR C RAYMOND, SENIOR SESSIONAL MEMBER