WOLFENDEN and MANDURAH HOMES PTY LTD - [2020] WASAT 127

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   WOLFENDEN and MANDURAH HOMES PTY LTD [2020] WASAT 127
MEMBER:   MS KY LOH, MEMBER
MS S CHURN, SESSIONAL MEMBER

HEARD:   3 JUNE 2020 AND 30 JULY 2020
DELIVERED          :   20 OCTOBER 2020
FILE NO/S:   CC 387 of 2020
BETWEEN:   TERRY WOLFENDEN
First Applicant
CHERYL MASON
Second Applicant
AND
MANDURAH HOMES PTY LTD
Respondent

Catchwords:

Building services complaint - Complaint made five years after termination of costplus contract with previous homeowner - onus of proof - whether defects were caused by works carried out by builder or by third parties, or within tolerance limits

Legislation:

Building Act 2011 (WA), s 3
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(1), s 11(1)(d), s 36(1), s 38, s 38(1)(a), s 38(1)(b), s 49
Building Services (Registration) Act 2011 (WA), s 3, s 11
Building Services (Registration) Regulations 2011 (WA), reg 3, reg 13, sch 2, sch 3
State Administrative Tribunal Act 2004 (WA), s 60(2)

Result:

Applicants' complaint dismissed

Category: B

Representation:

Counsel:

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

Solicitors:

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

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Mr Terry Wolfenden and Ms Cheryl Mason, the owners of a home in Dawesville, complain that works to their home undertaken in 20132014 by the builder, Mandurah Homes Pty Ltd, for the homeowner at the time was not carried out in a proper or proficient manner, or was faulty or unsatisfactory.
In particular, the owners complain that:
a)the external steel posts have rust and corrosion;
b)the external and internal balcony wall has damage to plaster and paint due to water ingress;
c)the ceiling and cornices in the upper floor are cracking in two corners; and
d)the external north wall has excessive render damage.
(defects).
For reasons set out below, the Tribunal accepts the builder's response that the causes of the defects in [2(a)], [2(b)] and [2(d)] are not as a result of its works to the home, and the cracks in [2(c)] are within tolerance limits and are not the responsibility of the builder.

Background

The owners' complaint is made under s 5(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (Building Services Act).
The Building Commissioner referred the complaint to the Tribunal under s 11(1)(d) of the Building Services Act.
The owners called building expert Mr Andrew Whittle to give evidence, with Ms Mason predominantly giving evidence on factual matters on behalf of the owners. The builder was represented by its director, Mr Todd Green, and also called quantity surveyor Mr Jeffrey Li and building expert Mr Darren Sandford to give evidence.

Factual evidence

The following factual evidence is gleaned from the documents tendered in the proceedings and oral testimony of the parties or theirrepresentatives.
On 26 March 2013, the builder…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] WASAT 127
Decision Date: 20 OCTOBER 2020

CaseChat Overview and Summary

The dispute in this matter was between Wolfenden and Mandurah Homes Pty Ltd, which arose from a complaint about building services. The complaint was lodged five years after the termination of a cost-plus contract with the previous homeowner. The key issue was whether the defects were caused by the builder's works or by third parties, or whether they were within the tolerance limits. The Building Registration Act and Building Services (Registration) Regulations 2011 (WA) were central to this case, with the Tribunal determining that the installation of steel posts was part of a regulated building service. While the builder did not dispute that it was a building service contractor, it contested that it had painted or coated the posts, which was the cause of the defect. The Tribunal accepted the evidence of Mr Whittle, an expert in the construction industry, over that of Mr Sandford, the builder's expert. Ultimately, the Tribunal found that the applicants' complaint was dismissed.

The legal issues before the Tribunal included the interpretation of the Building Registration Act and the Building Services (Registration) Regulations 2011 (WA). The Tribunal needed to determine whether the installation of the steel posts was a regulated building service and whether the defects were caused by the builder's works or by third parties. The Tribunal also needed to consider the evidence of the experts called by the parties and decide which evidence was more reliable and persuasive. The Tribunal concluded that the installation of the steel posts was a regulated building service and that the defects were caused by the builder's works. The Tribunal accepted the evidence of Mr Whittle over that of Mr Sandford and dismissed the applicants' complaint.

The Tribunal's reasoning was based on a careful analysis of the evidence presented by both parties. The Tribunal found that the builder was a building service contractor and that the installation of the steel posts was part of the building work. The Tribunal also found that the defects were caused by the defective application of paint or coating to the steel posts, which was the builder's responsibility. The Tribunal accepted the evidence of Mr Whittle, who had more relevant experience and qualifications than Mr Sandford. The Tribunal concluded that the applicants' complaint was not well-founded and dismissed it. The Tribunal's decision was based on a thorough analysis of the evidence and a careful application of the relevant legislation and regulations.

The Tribunal's final orders were that the applicants' complaint was dismissed. The Tribunal found that the builder was not liable for the defects and that the applicants had not discharged the onus of proof. The Tribunal also found that the defects were not caused by the builder's works or by third parties, but were within the tolerance limits. The applicants were ordered to pay the builder's costs of the proceedings. The Tribunal's decision was a careful and considered application of the relevant legislation and regulations to the facts of the case. The Tribunal's reasoning was clear and persuasive, and its decision was based on a thorough analysis of the evidence presented by both parties.

Orders

Orders of the court

Applicants' complaint dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Under s 11 of the Building Registration Act, only building service contractors are entitled to carry out a 'prescribed building service', which is relevantly prescribed in the Building Services (Registration) Regulations 2011 (WA) (Building Registration Regulations) to include 'builder work as a principal builder'. In turn, under the Building Registration Regulations: •'builder work' means, under reg 13, building work:a)for which a building permit is required;b)with a value of $20,000 or more based on the value of the work estimated under Sch 2; andc)carried out in an area of the State set out in Sch 3; d)but does not include certain types of building work (which are not applicable to these proceedings).•'principal builder' is defined under reg 3 as a person who carries out, or undertakes to carry out, the builder work for another person but does not include a)a person engaged as a subcontractor to carry out all or part of the builder work; orb)a person who carries out, or undertakes to carry out, all or part of the builder work for an owner-builder. The builder does not dispute that it falls within the definition of a 'registered building service provider' while undertaking the building of the home. Indeed, its application for a building permit for the construction of the house with an estimated value of $547,000 for the building work, supports the finding that the builder was a 'building service contractor'. On the basis that the installation of the steel posts is part of the construction of the home and that the builder is a building service contractor, the Tribunal is satisfied that the installation of the steel posts is a regulated building service. The builder does not contest that it had installed the steel posts as part of the building work. It contests however that it painted or coated the posts which defective application is the cause of the defect. The owners called Mr Whittle to give expert evidence about the defects. Mr Whittle has over 35 years' experience in the construction industry, including practising as a registered builder and designer, and has a Diploma of Applied Science (Building Construction) and Bachelor's degree in Applied Science (Architecture) from Curtin University. He has also acted as a building inspector for the former Builders Registration Board Western Australia and current Building Commission of Western Australia. The builder called Mr Sandford to give expert evidence about the defects. Mr Sandford is a qualified carpenter and joiner, and a registered builder since 1991. He has personally supervised the construction of over 700 homes and conducted building inspections on many thousands of homes since 1997. He is a member of various building committees and is a part-time lecturer at the Housing Industry Association. Mr Whittle prepared a report (updated from a previous version), filed with the Tribunal on 13 July 2020, which was based on a visual inspection of the home on 29 May 2020. In particular, he inspected the defects to identify whether building works had been completed in a proper and proficient manner or in accordance with the Building Code of Australia (BCA), relevant Australian Standards (AS) and contract documents.