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 entered into a 'costplus' contract to build the home with the previous owner of the home.
The building permit issued by the City of Mandurah on 15 April 2013 indicated that it was new building work for the construction of a house, and that the building permit covered all stages of the work. Theestimated value of the building work was stated as $547,000.
Mr Green stated in oral evidence that the parties had an understanding (which was not reduced in writing) that the builder would complete the house to a liveable state and include works such as tiling and painting and balustrading, but exclude gardens, fencing or carpets. Mr Green stated that the builder did not provide a quote for the job as the previous owner did not want one.
Mr Green stated that the contract was terminated halfway through the building job as he found that the previous owner had been paying tradespeople 'behind his back' to reduce the percentage fee that the previous owner would be required to pay to the builder.
The builder then terminated the contract with the previous owner, and lodged a Notice of Completion form on 27 February 2014 with the City of Mandurah advising of the completion date of 18 February 2014 for the building work.
Accompanying the Notice of Completion was a letter from the builder dated 27 February 2014 advising of the following works not included in the contract:
•internal/external painting
•plumbing fitt [sic]-off
•electrical fitt [sic]-off
•cabinetry
•internal fixing
•tiling
•concrete to garage
•landscaping
•fencing
•external paving
•security system
•insulation
The builder also notified Construction Training Fund that the variation between the estimated project value ($547,000) and actual project value ($278,023 including GST) was $268,977.
The owners bought the home in February 2018, and on or about December 2018 lodged a complaint with the Building Commissioner.

Burden of proof

In essence, save for the complaint relating to the cracking to the ceiling and cornices, the builder challenges that the cause of the defects was as a result of building works it had undertaken for the home.
The builder relies primarily on its records of the building job on the home at the time as Mr Green's recollection of certain events are, by his admission, not complete given the passage of time.
A challenge in this case, with the owners having bought the home nearly five years after works were carried out by the builder, and in circumstances where certain works were not carried out by the builder when the contract was terminated, is identifying whether the defects were as a result of the workmanship of the builder or of other persons after February 2014.
For instance, there were no photographs of the state of the home on or around February 2014 tendered by either party. Some criticism was made by Ms Mason in the hearing about the lack of such photographs, but it was not put squarely to Mr Green that there was any wrongdoing on the builder's part for a failure to produce any photographs, nor was Mr Green asked whether the builder had in fact taken any photographs following construction (and that if it had, whether such photographs were kept after the contract was terminated). In these circumstances, the Tribunal is not prepared to make any adverse findings on the lack of any photographs produced by thebuilder.
The owners have also challenged the accuracy of the items of works excluded by the contract as stated in the builder's letter when it lodged the Notice of Completion. They refer to the inconsistency in MrGreen's correspondence about whether the render work was carried out by the builder, with Mr Green initially advising the owners that no plaster or render work was performed, and then conceding that $15,000 worth of plaster or render work was completed (with the cash paid directly from the owner to the tradesperson, and the builder taking the percentage fee of 14% of that amount).
The builder has submitted a copy of the accounts of transaction details for the construction of the home.
The Tribunal accepts that there is little by way of documentary evidence about what works were actually completed by the builder and what works were excluded at the time the contract was terminated. This is largely a consequence of the nature of the contract which was entered into on a 'cost-plus' basis without an underlying quote onworks.
The builder's Notice of Completion and accompanying letter serve as contemporaneous records of what occurred at the time of termination of the contract, and their veracity was not seriously undermined by the challenges raised by the owners. Indeed, to the extent that plaster and render work is not specified in works excluded by the contract, it is consistent with the transaction accounts that refer to some plaster work to the value of $15,000 having been completed.
There is reference to some electrical work (to the value of $7,000) and plumbing work (to the value of $7,000) being paid by the owner on 21 February 2014 (just six days prior to the contract being terminated), recorded at the same time as works (that is, roof carpentry and plastering) and materials (that is, Gyprock ceiling and cornice and Colorbond roof sheeting) being paid by the owner. This potential inconsistency was not raised by the owners, and in any event the Tribunal is satisfied that the electrical and plumbing work could be distinguished from the electrical fit-off and plumbing fit-off works referred to in the builder's accompanying letter as excluded works.
The owners have also argued that there is a calculation error in the 14% percentage fee charged to the aforementioned works and materials paid by the owner on 21 February 2014. On further review of the accounts, any calculation error can be reconciled on the basis that the amounts paid by the owner were inclusive of GST, whilst the 14% fee was imposed on a GST-exclusive basis.
On balance, the Tribunal is satisfied that that the Notice of Completion and accompanying letter, as well the builder's transaction accounts, serve as reliable evidence of the works carried out by thebuilder.
Finally, unlike in civil or criminal proceedings, no party bears any onus of proof to establish any matter on which the Tribunal needs to be satisfied in order to exercise its jurisdiction in making a BuildingRemedy Order (BRO); rather, the Tribunal needs to be reasonably satisfied on the available evidence that it can exercise itsjurisdiction.

Issues

The Tribunal may deal with an owner's complaint by making a BRO if satisfied that the regulated building service that is the subject of the complaint has not been carried out in a proper and proficient manner or is faulty or unsatisfactory: s 38(1)(a) of the BuildingServices Act.
If not so satisfied, the Tribunal may decline to make a BRO: s38(1)(b) of the Building Services Act.
Section 38 of the Building Services Act must be read together with s 36(1) of the Building Services Act, which specifies that a BRO can only be made against the person who carried out the regulated buildingservice.
As such, the issues for determination in these proceedings arewhether:
a)the building work was a 'regulated building service';
b)the regulated building service was carried out by the builder; and
c)the defects were caused by the 'regulated building service' and if so, was the regulated building service carried out in a proper or proficient manner or was faulty or unsatisfactory.

Complaint rusted and corroded steel posts

Was the work a regulated building service?

Identifying the relevant building service

The owners essentially contend that the builder should be responsible for the corrosion coming through the steel posts as it should have installed posts appropriate for the coastal regions. Indeed, the owners stated that it was Mr Sandford, having prepared the prepurchase report for the owners on 18 January 2018, who had pointed out that the steel posts should have been protected for up to 40 years.
The owners stated that they had tried to rectify the problem twice by paying for the rust to be removed and repainted by registered painters. The first attempt was unsuccessful as the rust returned in six weeks, and the second attempt was 'for the most part … working' but they are still seeing small rust spots appearing.
The builder argues that it had supplied galvanised steel posts appropriate for coastal conditions and that the corrosion was as a result of the posts not being coated in the correct sealer or paint finish.
The builder submitted a copy of an invoice from the galvanisers, Hartway Galvanizers, which referred to five 'RHS Triple Columns' being delivered to Longship Engineering, whom Mr Green advised was the steel contractor. When challenged as to why there were only five triple columns referred to when there were seven triple columns (Ms Mason clarifying that there are five triple columns on the top floor and two additional triple columns on the bottom floor outside the front door), Mr Green testified that the columns for the upper level would be delivered first as there was a six-month time lag from the construction of the top floor to the construction of the bottom floor.
Mr Sandford stated that the normal scenario was for the specific length of posts to be cut to size and welded at the workshop, then sent to be galvanised and then returned to the fabricator to install, thus accounting for the galvaniser addressing its invoice to the fabricator.
The owners challenge that the Hartway Galvanizers' invoice is for the steel posts ultimately installed at the home. The inconsistencies identified by the owners have been reconciled by Mr Green to the satisfaction of the Tribunal.
The Tribunal's impression of Mr Green is that he presents as a somewhat belligerent witness on occasions in his reactions to Ms Mason's testimony (which belligerence is also apparent in some of his correspondence to Ms Mason). However, it has not detracted from his reliability as a witness of truth. Indeed, Mr Green was careful not to extrapolate from documents to speculation about matters of fact, and was honest as to his lack of independent recollection on certain facts. For example, when asked what plaster work was carried out, he admitted that he could not say what was done and what was not done as it was five years ago, and could only rely on the facts and information that he had.
As such, the Tribunal accepts Mr Green's evidence that the Hartway Galvanizers' invoice relates to the steel posts installed for the home.

Legal definitions

'Regulated building service' is relevantly defined under s 3 of the Building Services Act as 'a building service carried out by a registered building service provider or an approved owner-builder'.
In turn, under s 3 of the Building Services Act:
•'building service' is relevantly defined as 'building work (as defined in the Building Act 2011 (WA) [(Building Act)] section 3)' or 'any other service or work prescribed for the purposes of this definition'; and
•'registered building service provider' is defined as 'ha[ving] the meaning given in the Building Services (Registration) Act 2011 (WA) [Building Registration Act] section 3'.
'Building work' is relevantly defined in s 3 of the Building Act as 'the construction, erection, assembly or placement of a building'.
'Registered building service provider' is defined in s 3 of the Building Registration Act as either a 'building service practitioner' or a 'building service contractor'.
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; and
c)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; or
b)a person who carries out, or undertakes to carry out, all or part of the builder work for an owner-builder.

Application

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.

Was the service carried out by the builder?

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.

Was the defect caused by the regulated building service, and was the regulated building service carried out in a proper or proficient manner or was faulty or unsatisfactory?

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.
Mr Sandford prepared three reports filed with the Tribunal in relation to the defects.
Mr Whittle was provided with a copy of photographs taken by the owners 'showing rusting of the posts in the first instance after they were installed by the [builder]'. Mr Whittle then took his own photographs from his inspection, which was two months after the second paint work contracted by the owners. Mr Whittle's photographs revealed rust staining that was bleeding through the painted surface of the steel posts at the base only.
Mr Whittle is of the opinion that the builder is responsible for meeting the minimum steelwork finish of 75 microns of inorganic zinc silicate to the steel posts, as set out in the engineering specifications.
Mr Whittle considers the engineering specifications are consistent with the BCA par 3.4.4.4 'Corrosion protection' and Table 3.4.4.2 'Protective Coating for Steelwork' which requires external steelwork within 1 kilometre from breaking surf to be protected against corrosion by the following options:
Option 1.Inorganic zinc primer plus 2 coats vinyl gloss finishing coats
Option 2.Hot dip galvanise 300g/m²
Option 3.Hot dip galvanise 100 g/m² min plus
a)2 coats solvent based vinyl primer; or
b)2 coats vinyl gloss or alkyd.
In his report, Mr Whittle assessed the home as being approximately 250 metres from breaking surf using Google Earth to plot the distance. In two of Mr Sandford's reports, he assessed the distance of the home from breaking surf as 300 metres and, alternatively, 500 metres. Mr Sandford has not reconciled the difference, and given that Mr Whittle has applied Google Earth to estimate the distance, the Tribunal accepts Mr Whittle's estimation of the distance of the home from breaking surf.

The distinction between Mr Whittle's estimation and Mr Sandford's estimation is not an overly significant one, as they are both less than 1 kilometre, and as such, the options for corrosion protection under the BCA referred to in [55] above are applicable.
Mr Whittle classified the home as 'Category C4-high corrosivity category' under section 3.2.4 of AS 4312-2008 'Atmospheric corrosivity zones in Australia'. He states that this is consistent with the Category C4 high atmospheric environment under section 6.3 of the AS 2312.22014 'Guide to the protection of structural steel against atmospheric corrosion by the use of protective coatings'.
Under Table 6.3 of AS 2312.2, the durability of surfaces within the C4 High atmospheric corrosivity category which have had a first coat of inorganic zinc silicate, solvent-borne or water-borne, is 10 15 years to first maintenance.
Mr Sandford did not give any evidence to contradict Mr Whittle's evidence about the home being classified within the C4 High atmospheric corrosivity category under AS 2312.2, nor its application to the home in terms of years of durability to first maintenance.
The Tribunal notes that in an email from the Assistant Manager of Hartway Galvanizers, the Assistant Manager considered that the 'environment would fall within the C5-CX region'. However, the galvanisers have not been called to give expert evidence, and as Mr Sandford did not disagree with Mr Whittle's opinion, the Tribunal affords little weight to the statement in that email.
Mr Sandford's view is that hot dipped galvanising is an acceptable alternative to the inorganic zinc silicate specified in the engineer's specifications. He considers that if the steel posts were galvanised at 100gm/m², generally most painters would understand to put resin additive to comply with the 'standards requirement', which the Tribunal interprets to mean the BCA requirement under Table 3.4.4.2. Mr Sandford considers that if the steel posts were galvanised at 300 gm/m² (which is usually not for domestic use), there would be no requirement for further treatment at all.
In Mr Sandford's view, as the builder did not carry out painting work, the builder was not responsible for the corrosion to the steel posts.
Indeed, taking Mr Sandford's opinion a step further, if the provision of inorganic zinc silicate is an acceptable option to comply with Table 3.4.4.2 of the BCA, the application of that coating also falls outside of the builder's responsibility as the builder did not carry out painting work.
A theory was advanced in a letter from the Assistant Manager of Hartway Galvanizers that prior to painting, the steel post surface could have been prepared by blasting or mechanically sanding, which would have compromised the galvanised coating. Mr Whittle was sceptical that anyone would tamper with hot dip galvanising, while Mr Sandford stated that he has seen painters grind imperfections to achieve smooth surfaces. In the absence of any direct evidence of how the steel post surfaces were prepared prior to painting, the Tribunal declines to embark on what would be speculation as to whether the posts were blasted or mechanically sanded.
The theory highlights, however, that painting works is separate to installation works, and if the Tribunal is satisfied that the builder's responsibility only extends to installing the steel posts but not painting the posts, then only the persons responsible for the painting work could have caused the defect.
The Tribunal is satisfied that it was open to the builder to comply with the BCA by adopting any of the options identified for homes built within 1 kilometre of the breaking surf, including installing hot dipped galvanised steel posts. No witness was able to attest to the level of galvanising (that is, whether it was to 100 gm/m² or 300 gm/m²), however, even if it was at the lower level of 100 gm/m² and a further two coats of painting (primer or gloss/alkyd) was required, the application of the paint is a separate work, which fell outside the responsibility of the builder once the contract was terminated.
The Tribunal is therefore neither satisfied that the cause of the rust and corrosion to the steel posts was as a result of the installation of the steel posts by the builder, nor that steel posts were installed in a manner which was not proper or proficient, or which was faulty or unsatisfactory.

Complaint damage to plaster and paint to balcony wall, water ingress

Was the work a regulated building service?

Messrs Whittle and Sandford agree that wind-driven water is entering into the interior of the home from below the sliding door frames of the living room balcony and is soaking up into internal walls.
They agree that as a consequence water damage has been caused to the balcony internal wall, with both experts detecting moisture within the lower part of the walls.
Mr Green stated that the builder had built the home according to the specifications in the engineering drawings, in particular, the concrete balcony slab, incorporating the 40 millimetre step down, and associated brickwork, but not the installation of tiling to the balcony.
The Tribunal accepts Mr Green's evidence and finds that the relevant building service is the construction of the concrete balcony slab and associated brickwork.
The Tribunal is satisfied that the installation by the builder of the concrete balcony slab and associated brickwork is part of the construction of the home and, as such, is a regulated building service.

Was the service carried out by the builder?

The builder does not contest that it had installed the concrete balcony slab, but argues that the cause of the water ingress is related to the installation of balcony tiling (for which it was not responsible).

Was the defect caused by the regulated building service, and was the regulated building service carried out in a proper or proficient manner or was faulty or unsatisfactory?

Both experts agree that a cause of the water ingress is due to the level of the balcony tiling being built to the same level as the upper internal floor level of the home, particularly as both had observed that the slope on the balcony floor was not at a sufficient gradient consistently across the floor to allow water to run off.
Mr Sandford did not observe any waterproofing below the balcony floor tiles (which he considered was another cause of water ingress), whilst Mr Whittle observed a waterproof membrane installed on top of the screed below the tile adhesive.
Both experts agree that the engineering drawings indicate that the suspended concrete balcony slab is set down 40 millimetres lower than the internal floor level of the internal areas to the upper level.
The owners had removed a tile directly in front the sliding door which exposed the underside of the sliding door frame. Both experts observed that screed had been built up above the surface of the suspended concrete slab.
Mr Whittle measured the distance from the concrete slab to the top of the tiles at 55 millimetres, whilst Mr Sandford measured the same distance from the concrete slab to the top of the cement based screed.
Mr Sandford also observed that the balcony leading off from the upper floor master bedroom had a step down from the internal floor level and a tiled sill brick below the sliding door frame. It supported his conclusion that the builder had built a step down of 40 millimetres according to engineering drawings, and had built a brick sill directly to the living room balcony sliding doors, with a cavity between the internal and brick sill, in a very similar fashion to the master bedroom balcony. He surmised that the person who had carried out the tiling had removed the brick sill, and put concrete cement screed and tiled the floor up to the internal floor level.
While Mr Whittle considered that a builder was still responsible for installing sill flashing under the door even if it was not responsible for tiling, he accepted that the sill flashing was not necessary if a brick sill had been installed.
In his report, Mr Whittle considered that a 40 millimetre step down was less than the 'standard' 86 millimetre step down usually specified, and also less than the 70 millimetre 'vertical termination height' specified for wind class N3 (non-cyclonic) under Appendix A of the AS4654.2-2012 where stormwater retention is designed.
Mr Whittle did not identify any requirement under the BCA or AS to support his opinion that a step down of 86 millimetre is a standard height. Further, he accepted Mr Sandford's view that Appendix A of AS4654.2-2012 is an informative, rather than mandatory, part of AS4654.2-2012.
Mr Sandford considered it appropriate for a builder to accept an engineer's design of a 40 millimetre step down in the engineering drawings.
In the absence of any mandatory building requirement for a specific step down height, the Tribunal accepts Mr Sandford's view that a builder is entitled to rely on an engineer's opinion in engineering drawings that a 40 millimetre step down is adequate.
It is unclear between the experts whether there is any waterproofing under the tiling. Mr Whittle also commented in his report on the lack of waterproof membrane between the balcony finished floor level and inside the dwelling, although the Tribunal finds that that comment has been overtaken by his acceptance at the hearing that a brick sill (with cavity) is effective for water run-off.
In any event, there is no expert evidence that it was a requirement (or feasible) for a builder to install waterproofing as part of its responsibility of installing the concrete balcony slab in circumstances where it was not responsible for tiling the balcony.
Ultimately, the Tribunal is satisfied that a third party (or parties) has removed the brick sill to the living room balcony doors and has built up the concrete screed and tiles to the same level as the internal floor, and that the expert evidence supports the conclusion that the cause of the water damage to the balcony wall is as a result of the removal of the brick sill.
The Tribunal is otherwise not satisfied that the installation of the concrete balcony slab and associated brickworks was carried out by the builder in a manner which was not proper or proficient, or which was faulty or unsatisfactory.

Complaint cracking in ceilings and cornices

Was the work a regulated building service and was it carried out by the builder?

The builder does not dispute that it constructed the ceiling and cornices of the home. As such works are part of the construction of the home, the Tribunal is satisfied that it is a regulated building service.

Was the regulated building service carried out in a proper or proficient manner or was faulty or unsatisfactory?

Messrs Whittle and Sandford both rely on Table 9 of HB161-2005 'Guide to plastering' in assessing the wall cracks and the Western Australian Guide to Standards and Tolerances 2019 (WA Tolerances Guide) in assessing the cornice cracks.
In relation to the wall cracks, Mr Whittle identified horizontal cracks of approximately 0.5 millimetres in width near, and a crack on the underside of the cornice to, the right of the living room balcony door. He also identified delamination below the crack. He did not state which part of Table 9 of HB161-2005 was relevant to the cracking, simply stating that the cracking to the sections of the plastered wall finish was unsatisfactory.
Mr Sandford referred to the wall cracks in his report of 6 May 2020, and also provided further photographs of measuring the cracks with a calibration gauge taken at the time of inspection (4 May 2020) for the purpose of preparing that report. Mr Sandford stated that measuring cracks with a calibration gauge is more accurate than measuring cracks by steel ruler adopted by Mr Whittle.
Mr Sandford measured the width of the wall crack to the right of the sliding door at up to 0.25 millimetres and the crack directly under the cornice at up to 0.3 millimetres.
Mr Sandford also identified other wall cracks not identified by Mr Whittle, the widest one below the crack on the underside of the cornice (0.4 millimetres).
Mr Sandford similarly did not identify which part of Table 9 of the HB161-2005 was applicable, simply noting that the wall cracking he observed is within the 0.5 millimetres crack width. The only tolerance with a limit of 0.5 millimetres relates to stepped cracking above interior door openings with site soil class Type S.
It is likely that Mr Whittle has applied the same tolerance limit of 0.5 millimetres but in light of his measurement putting the widths of the cracks at 0.5 millimetres, has assessed this limit as having been breached and therefore considered it unsatisfactory.
The Tribunal agrees with Mr Sandford that the measurement of wall cracks using a calibration gauge is more accurate than a steel ruler, and so accepts Mr Sandford's measurements rather than Mr Whittle's, as well as Mr Sandford's opinion that these measurements are within the acceptable tolerance limit under Table 9 of HB161-2005.
As to the cornice cracking, Mr Sandford acknowledges that the WA Tolerances Guide was valid from May 2019 (after the complaint was lodged), as such, he has only used this reference as a general reference. Mr Whittle has not discounted the application of the WA Tolerances Guide on such a basis.
The introductory passages to the WA Tolerances Guide recognises that it has been developed for use by builders and building owners as a convenient reference for acceptable standards of workmanship in residential building construction, and is based on technical standards and industry tolerances. Further in the document, the WA Tolerances Guide states that it can be used to determine whether or not an item is defective only where this cannot be done by reference to the contract documents, the BCA or the relevant regulations. Finally, the WA Tolerances Guide stresses that it is a guide only and an advisory document, and that all other documents prescribing statutory and contractual requirements, relevant to the contract, take precedence over the WA Tolerances Guide.
In the absence of any other evidence of prescription under the BCA or other regulatory requirements or standards in relation to what is considered acceptable standards of workmanship for cracking of cornices and ceilings, the Tribunal has had regard to the WA Tolerances Guide as a guide to industry tolerances. In recognition however that the WA Tolerances Guide would only have come into effect after the making of the complaint (albeit by only five months), the Tribunal has also exercised its own discretion making an assessment of acceptable standards of workmanship.
In relation to cornice cracking, both experts observed cracking to the body of the cornice, with Mr Whittle estimating it to be approximately 2 millimetres in width while Mr Sandford estimating the maximum width at 3 millimetres. Mr Sandford observed that there is a small hole at the crack, as if a fixing (nail or screw) was at some time driven into the body of the cornice.
Under clause 10.16 of WA Tolerances Guide, cracking of cornice joints is defective if it exists at handover or exceeds specified tolerances within the first 24 months of completion and can be seen from a normal viewing position. The specified tolerance for a crack occurring through the body of the cornice is where it can be seen from a normal viewing distance.
Both experts agree that this is the relevant part of the WA Tolerances Guide. In Mr Sandford's view, the time limit of 24 months from the completion of the home has lapsed and thus the cracking is not considered to be defective.
Whilst only intended as a guide, the Tribunal agrees with the underlying policy of a provision such as clause 10.16 of the WA Tolerances Guide, which imposes a time constraint on cracks appearing in cornices so that some reasonable time limitation on risk of cracking is imposed following practical completion and handover. In this case, at nearly five years after completion of the home to the date of the complaint, this is well outside a 24-month period assessed on industry standards as being a reasonable time limitation on such complaints.
The Tribunal is not satisfied that the crack in the cornice demonstrates work by the builder carried out in a manner which was not proper or proficient, or which was faulty or unsatisfactory.
Finally in oral testimony, Mr Whittle raised a concern that he observed some delamination near a horizontal crack from the top corner of window. Mr Sandford stated that he did not observe any delamination on the masonary wall, and that in event, clause 10.05 of the WA Tolerances Guide relevantly provides for it being a defect if it is in an area that extends more than 200 millimetres in any direction and that area is more than 4% within a square metre of that plaster area. Mr Whittle accepts that clause 10.05 of the WA Tolerances Guide is the relevant tolerance standard. With neither expert attesting that the requirements for a defect have been established under clause 10.05, and the Tribunal being of the view that it is relevant to take the WA Tolerances Guide into account in determining whether works are defective, the Tribunal is not satisfied that even if delamination on the masonary wall can be established that it would constitute defective works.

Complaint render damage to external north wall

Was the work a regulated building service and was it carried out by the builder?

Messrs Whittle and Sandford agree that external plaster work (or render) to the north elevation wall is delaminating from the wall. Mr Sandford observed that there is also a horizontal crack extending from the bottom section of the delamination for a distance of approximately 900 millimetres with the width of the crack measuring 0.35 millimetres.
In Mr Sandford's view, the cracking and delamination is as a result of incorrect application of the render, rather than any issues relating to the substrate being the brick wall.
The experts agree that the render work is defective, so the relevant issue is whether the builder carried out the render work.
The builder had historically denied carrying out any plaster work in communications with the owners and the Building and Energy Division until 20 January 2020, when Mr Green conceded that the builder only completed the internal and external upper floor plastering work at the cost of $15,000 paid by the owner.
Mr Green came to this conclusion by estimating the total cost of plastering the home inside and out to be $35,000, and equated the $15,000 paid for plastering to the upper floor only based on the area of the upper floor.
He stated that 'the way plastering is completed is from top down, starting with internal float, then external float, then internal set, then external second coat, then painting, then drop scaffold ready for ground floor plaster work'.
Mr Green also identified in photographs of the render delamination submitted by the owners that tiles appeared to have been installed before the render as a texture coat was visible to the bottom edge of the tile, and the two coat sand finish at the top of the tile had been completed after the tiling.
The implication is that if the render was completed after the tiling, and the builder terminated the contract before completing any tiling work, then the render must have occurred after termination of the contract and thus was not carried out by the builder.
The builder relied on Mr Li's estimate of the cost of plastering the internal and external areas of the home. He estimated that at $18 per square metre (excluding GST) the cost of plastering the internal and external upper floor is $10,720 and the ground floor is $18,040, totalling $28,760.
Mr Whittle also prepared an estimate of the plastering costs, and, at $20 per square metre (excluding GST), the cost of plastering the internal and external upper floor is $9,378 and the ground floor is $19,663, totalling $29,041.

In oral testimony, it was identified that internal area applied by Mr Li (788m²) was greater than that applied by Mr Whittle (705m²), although the external area applied by Mr Li (583m²) was close to that applied by Mr Whittle (609m²).
Irrespective of the basis for the differences, the experts' estimates of the internal and external cost of plastering the home supports Mr Green's contention that it is far greater than the $15,000 paid by the previous owner indeed, on Messrs Li's and Whittle's estimate, it is about twice as much.
Their estimates of the cost of plastering the internal and external upper floor, however, is lower than $15,000, even assuming that that amount included GST. As such, while it seems clear that part of the plastering work was undertaken before the contract was terminated (for which the builder accepted a percentage fee), the Tribunal cannot be satisfied, on the basis of the experts' estimates alone, whether that plastering work was confined to the upper floor only.
The photographs of the render damage, however, reveal that the tiling work in close proximity to, and at about the same height on the wall as, the render damage was most likely undertaken before the render work.
When reviewing the photographs, Mr Sandford identified that render was laid on top of the return tile on the left hand side next to the downpipe.
The Tribunal's own observations also match those of Mr Green that the render above the tiles protrudes past the render.
On the basis of these photographs, the Tribunal is satisfied that the render within close proximity to the damage and, by inference, the render which delaminated, was applied after the tiling.
The Tribunal accepts that, based on the Notice of Completion, the builder did not undertake any tiling work, and as such, it did not perform the particular render work which delaminated on the north elevation wall.

Conclusion

For the reasons stated above, the Tribunal finds that:
a)the builder was not responsible for applying paint protection to the hot dipped galvanised steel posts which it installed to the home, the absence of which caused the defect, and is also not satisfied that the installation of the steel posts was carried out by the builder in a manner which was not proper or proficient, or which was faulty or unsatisfactory;
b)the water damage to the living room balcony wall was caused by the removal by a party other than the builder of the brick sill to the balcony doors and the build-up of concrete screed and tile to the same level as the internal floor, and is also not satisfied that the installation of the concrete slab and associated brickworks was carried out by the builder in a manner which was not proper or proficient, or which was faulty or unsatisfactory;
c)the wall cracks are within the acceptable tolerance limit and the cornice cracks are not considered defective, as such, the Tribunal is not satisfied that the construction of the ceilings and cornices was carried out by the builder in a manner which was not proper or proficient, or which was faulty or unsatisfactory; and
d)the render damage was caused by incorrect application of render carried out by a party other than the builder.
Consequently, the Tribunal is not satisfied that there is any basis for making a BRO against the builder.
The builder has sought costs under s 49 of the Building Services Act. The Tribunal will allow the parties to file submissions and evidence in relation to the builder's application for costs, and for the matter to be determined on the documents only under s 60(2) of the State Administrative Tribunal Act 2004 (WA).

Orders

The Tribunal makes the following orders:
1.The applicants' complaint is dismissed.
2.By 10 November 2020, the respondent is to file submissions and any documents (including invoices) on which it relies in support of its application for its costs in relation to the proceedings arising from the building service complaint.
3.By 1 December 2020, the applicants may file any submissions in response to the respondent's application for costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS K Y Loh, MEMBER
20 OCTOBER 2020