ZIMOWSKI and IDEAL HOMES PTY LTD
[2022] WASAT 90
•11 OCTOBER 2022
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION: ZIMOWSKI and IDEAL HOMES PTY LTD [2022] WASAT 90
MEMBER: MS C BARTON, MEMBER
MR R AFFLECK, SENIOR SESSIONAL MEMBER
HEARD: 13, 14, 15 AND 16 JUNE 2022
(FINAL SUBMISSIONS FILED ON 2 AUGUST 2022)
DELIVERED : 11 OCTOBER 2022
FILE NO/S: CC 910 of 2021
CC 1706 of 2021
BETWEEN: LUKASZ ZIMOWSKI
First Applicant
JOLANTA ZIMOWSKA
Second Applicant
MAREK ANDRZEK ZIMOWSKI
Third Applicant
AND
IDEAL HOMES PTY LTD
Respondent
Catchwords:
Building service complaint - Whether failure to carry out a building service in a proper and proficient manner - Whether faulty or unsatisfactory building work - Quality of internal plasterwork - Obligations on painter to test plaster - Whether irretrievable breakdown in relationship - Loss of confidence in builder - Building remedy order - Monetary order - Compensation order
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 36(1)(b), s 36(1)(c), s 36(2), s 38(1), s 38(1)(a), s 38(1)(b)
Building Services (Complaint Resolution and Administration) Regulations 2011 (WA), reg 5
Building Services (Registration) Act 2011 (WA), s 3, s 17, s 18
State Administrative Tribunal Act 2004 (WA), s 51(1)(b)Result:
Application successful in part
Category: B
Representation:
Counsel:
First Applicant : Mr J Slack-Smith & Mr E Parra Second Applicant : Mr J Slack-Smith & Mr E Parra Third Applicant : Mr J Slack-Smith & Mr E Parra Respondent : Mr L C A Palmos & Ms M Ledger Solicitors:
First Applicant : Summers Legal Second Applicant : Summers Legal Third Applicant : Summers Legal Respondent : Palmos Legal Case(s) referred to in decision(s):
Brooks and Gransden Building Company Pty Ltd [No 2] [2021] WASAT 86
Dumbreck and Tangent Nominees Pty Ltd [2017] WASAT 88
Gemmill Homes Pty Ltd v Sanders [2018] WASC 179
Hand and Arasi Constructions Pty Ltd [2020] WASAT 154
Hippydayze Pty Ltd and Mener Group Pty Ltd [2019] WASAT 92
Jennings and Howitt [2019] WASAT 133
Lewis and Waco Pty Ltd [2016] WASAT 127
Lowke and BGC Residential Pty Ltd [2017] WASAT 62
Nelson v Mardesic (1998) 22 SR (WA) 42
Northcott and Realgold Corporation Pty Ltd (ACN 117 580 560) [2020] WASAT 72
Owners of Island Apartments Strata Plan 52597 and Pindan Pty Ltd [2017] WASAT 25
Patronus Holdings Pty Ltd and Stamor Pty Ltd [2019] WASAT 147
The Owners of One Brighton Strata Plan 51948 and Pindan Pty Ltd [2018] WASAT 84
Trengove and Celebration Nominees Pty Ltd [2012] WASAT 65
Waldron and Afra Construction Pty Ltd [2013] WASAT 207
Willis and Fletcher [2015] WASAT 95
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
1A dispute arose between the parties concerning the construction of a residential dwelling at 11 Melanzana Chase, Landsdale (property). The applicants in the proceedings, and owners of the property, are Lukasz Zimowski, Jolanta Zimowska and Marek Zimowski (applicants). The respondent in the proceedings is Ideal Homes Pty Ltd (respondent).
2The proceedings comprise two separate, but related building service complaints, made to the Building Commissioner (Commissioner) and referred to the Tribunal on 21 May 2021 under s 11(1)(d) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (Act). The first complaint (CC 910/2021) was made to the Commissioner on 3 May 2021. The second complaint (CC 1706/2021) was made to the Commissioner on 6 October 2021.
3The applicants allege 26 complaint items, with 24 complaint items in CC 910 of 2021 and two complaint items in CC 1706 of 2021.
4On 16 November 2021, pursuant to s 51(1)(b) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the Tribunal made orders that CC 910/2021 and CC 1706/2021 are to remain as separate proceedings but heard and determined together.
5The applicants seek an order to pay under s 36(1)(b) of the Act in respect of the building service complaint items. The first applicant also seeks compensation under s 36(1)(c) of the Act for consequential losses arising from the respondent's failure to carry out the building service in a proper and proficient manner or for faulty or unsatisfactory building work.
Issues
6The issues for determination by the Tribunal in relation to the building service complaints are as follows:
1)Did the respondent carry out a regulated building service?
2)If the answer to 1) is in the affirmative, has the respondent failed to carry out the building work the subject of the complaint items in a proper and proficient manner or is the work faulty or unsatisfactory?
3)If the answer to 1) and 2) is in the affirmative, what is the appropriate form of the building remedy order (if any) in respect of each complaint item?
The statutory framework
7Section 5(1) of the Act provides that a person may make a complaint to the Commissioner about a regulated building service not being carried out in a proper and proficient manner or being faulty or unsatisfactory. A complaint made under s 5(1) of the Act is defined as a 'building service complaint'.[1]
[1] Section 3 of the Act.
8A 'regulated building service' is defined in s 3 of the Act to include a building service carried out by a registered building service provider or an approved owner-builder. Relevantly, a 'registered building service provider' has the meaning given in s 3 of the Building Services (Registration) Act 2011 (WA) (Registration Act), being a building service practitioner or a building service contractor registered under s 17 and s 18 of the Registration Act respectively.
9A 'building service' includes 'building work' as defined in s 3 of the Building Act 2011 (WA) (Building Act) being the construction, erection, assembly or placement of a building or an incidental structure (being a structure attached to or incidental to a building).
10Regulation 5 of the Building Services (Complaint Resolution and Administration) Regulations 2011 (WA) (Regulations) imposes the limitation that only a person whose interests are being or have been adversely affected by the carrying out of a regulated building service may make a building service complaint.
11Where a building service complaint is referred to the Tribunal by the Commissioner under s 11(1)(d) of the Act, s 38(1)(a) of the Act enables the Tribunal to make a building remedy order where it is satisfied that the regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory. Where the Tribunal is so satisfied, it may make an order requiring a person who carried out a regulated building service to do one or more of the following under s 36(1) of the Act:
a)remedy the building service as specified in the order;
b)pay to an aggrieved person such costs of remedying the building service as the Tribunal considers reasonable and specifies in the order; and
c)pay to an aggrieved person a sum of money specified in the order to compensate the aggrieved person for the failure to carry out the building service in a proper and proficient manner or for faulty or unsatisfactory building work.
12The Tribunal may otherwise decline to make a building remedy order under s 38(1)(b) of the Act.
13A building remedy order may require that it be complied with within a timeframe specified in the order.[2]
[2] Section 36(2) of the Act.
The conduct of the proceedings and expert evidence
14In relation to the internal plasterwork at the property, the applicants relied on the evidence of Mr Rick Hughes, a scientist with Microanalysis Australia. The applicants also relied on the evidence of Mr Barry Egan, an experienced plastering contractor, and Mr James Lawrence, a building inspector with Inspect My Home. The respondent relied on the evidence of Mr Armand Zurhaar, a forensic and materials scientist with Zedcon Scientific Services, and Mr Richard Machell, Principal of Prescient Consulting. The experts prepared a joint expert report following an expert conferral on 10 May 2022.
15In relation to the remaining complaint items, the applicant relied on the evidence of Mr Lawrence and Mr Mike Sander, who is a structural and civil engineer. The respondent relied on the evidence of Mr Machell and Mr Shane Just, a structural engineer with Structerre. The experts prepared a joint expert report following an expert conferral on 10 May 2022.
16The Tribunal also had the benefit of a report dated 17 March 2021 and oral evidence from Mr Hayden York, the managing director of Healthy Building Systems and two reports prepared by Mr Philip Rawlinson, a registered building inspector with Abode Consulting, following his inspections of the property on 19 October 2015 (first Rawlinson report) and 19 December 2015.
17The final hearing was heard between 13 and 16 June 2022 with the parties' legal representatives appearing in person and the expert witnesses attending via video conference. At the conclusion of the hearing, the Tribunal made orders requiring the parties to prepare closing submissions and to produce a table showing their position on liability and the scope of remedial works required to remedy each complaint item regardless of their position on liability. The Tribunal's decision was reserved from the date of filing of the final submissions.
The Tribunal's consideration
18We will first consider whether the respondent carried out a 'regulated building service' and, if so, whether the building work, the subject of each of the complaint items, was carried out in a manner that was not proper and proficient or was faulty or unsatisfactory.
Did the respondent carry out a regulated building service?
19A 'regulated building service' is defined in s 3 of the Act to include a building service carried out by a registered building service provider. There was no dispute, and we find, that the respondent is a registered building service provider and carried out a building service at the property.
20Accordingly, we find that the respondent did carry out a regulated building service which is the subject of the complaint items. Therefore, it is open to us to make a building remedy order against the respondent under s 36(1) of the Act if we are satisfied that the work which is the subject of the complaint items was carried out in a manner that was not proper and proficient or was faulty or unsatisfactory.
Was the building work, the subject of each of the complaint items, carried out in a manner that was not proper and proficient or was faulty or unsatisfactory?
21We will next consider complaint item 23 in CC 910 of 2021 and complaint item 1 in CC 1706 of 2021 which relate to the internal plasterwork at the property and the peeling of paint from the walls (internal plasterwork complaints). For ease of reference, our findings in relation to the remaining complaint items, other than the first applicant's claim for consequential losses, are contained in the tables in Annexures A and B to these reasons.
Quality of the internal plasterwork
22The applicants say that the gypsum/lime white set plaster (set coat) is soft, chalky and powdery through to the float coat and comes off the walls on conducting a 'tape test', evidencing that the respondent has failed to use the correct plaster mix. The applicants contend that the set coat does not achieve the 3 millimetres thickness recommended by industry, building and manufacturer's standards, or the contractually agreed nominal thickness of 3 millimetres. They also say that it has been applied with uneven trowelling causing significant unevenness and lumpiness of finish.
23In relation to the cement float coat, the applicants contend that the void (air) content within the float coat is very high having approximately 48% porosity when, according to AS2350.16-2006,[3] the physical properties of correctly mixed and applied float coat should have a typical void (air) content of 15%. The applicants further say that the void and remnant bubbles artefacts indicate the likely use of excess surfactant in the float coat mix and/or application causing excess air entrainment. The thickness of the float coat was also of concern to the applicants. They assert that, with an average nominal thickness of 9.4 millimetres, the float coat is below the minimum industry standard (HB 161:2005) of 12 millimetres and the contractually agreed nominal thickness of 10 millimetres.
[3] Methods of testing portland, blended and masonry elements - Determination of air content of masonry cement.
24In support of their position that the plaster has failed, the applicants relied on the evidence of Mr Hughes, Mr Egan and Mr Lawrence. Mr Hughes used a durometer to test the hardness of the set coat and found that the set coat had a Shore 'D' Hardness between 45 and 57, rather than the recommended Shore 'D' Hardness of 60.[4] Consequently, Mr Hughes concluded, in combination with other observed factors, that the plaster is too soft.[5] Mr Egan and Mr Lawrence agreed, following a fingernail test, that the plaster is too soft and was chalky down to the float coat.[6]
[4] Exhibit 1, page 123.
[5] Exhibit 1, page 66.
[6] Exhibit 1, page 66.
25Mr Hughes undertook an analysis of the float coat and found the void content to be approximately 48%.[7] He explained that the high porosity meant that moisture was wicked out of the set coat back into the float coat.[8] In Mr Hughes' opinion, this caused the set coat to dry faster and the carbonation (or curing) process stopped once the water in the set coat dropped below a certain level.[9] Mr Hughes concluded that the excessive suction of the float coat (due to its high porosity) resulted in plaster that is soft and chalky.[10]
[7] Exhibit 1, page 149.
[8] ts 56, 13 June 2022.
[9] ts 56-58, 13 June 2022.
[10] ts 58, 13 June 2022.
26In Mr Hughes' opinion, the set coat is too thin. Following his analysis, he found the thickness of the set coat ranged from 0.72 millimetres to 1.41 millimetres.[11] The applicants contend that this is well below the requirements provided by:
[11] Exhibit 1, page 67; Exhibit 1, page 123.
1)the contract, which requires a nominal thickness of 3 millimetres;[12]
[12] ts 144,14 June 2022; Exhibit 1, page 35.
2)HB 161:2005, which states that the set coat should have a maximum thickness of 3 millimetres;[13]
[13] Exhibit 1, page 698.
3)the West Australian Solid Plastering Association specification, which states that the set coat should be applied to the float coat in three continuous applications to a minimum 3 millimetres thickness;[14]
[14] Exhibit 2, page 4.
4)all manufacturers;[15] and
[15] ts 65, 13 June 2022; Exhibit 3, page 78.
5)the Commissioner's Industry Bulletin 71/2016, which states that builders need to check that 'a three coat plaster system achieving a nominal 3 millimetres thick finish coat is being provided'.[16]
[16] Exhibit 1, page 597.
27Mr Hughes said that a thinner set coat is likely to dry out faster than a thicker set coat.[17] Therefore, in Mr Hughes' opinion, a thin set coat has the same impact as a float coat with high porosity (it does not retain water). As a result, the carbonation (curing) process stops prematurely, and the set coat plaster is soft and chalky. The evidence of Mr Hughes was consistent with that provided by Mr Egan.[18]
[17] ts 66, 13 June 2022.
[18] ts 65, 13 June 2022.
28Mr Lukasz Zimowski (the first applicant) explained that he could not drill into the plaster without the plaster crumbling around the hole.[19] He also said that when he knocked the wall a chunk of plaster would come off.[20]
[19] ts 443, 16 June 2022; ts 469, 16 June 2022.
[20] ts 443, 16 June 2022.
29It is the respondent's position that the plasterwork satisfied industry standards and was not defective, either as claimed or at all. In support of its position, the respondent relied on the evidence of Dr Zurhaar and Mr Machell.[21] In relation to the condition of the float coat, it was Dr Zurhaar's opinion that the poor paint adhesion did not have any connection to the float coat. This was consistent with the evidence of Mr Machell who said:[22]
[21] Exhibit 1, pages 500-533; Exhibit 3, pages 438-442.
[22] ts 82, 13 June 2022.
There was no drumminess. The float coat was well adhered to the wall where I saw it. No evidence of delamination. No evidence of drumminess or hollowness.
30In relation to the condition of the set coat, Mr Machell observed: [23]
[23] ts 82, 13 June 2022.
The set coat - no evidence of coming off. No evidence of drumminess. No evidence of delamination. No evidence of spalling.
31The respondent points to the joint statement of the experts in support of its position that the plasterwork satisfied industry standards. Dr Zurhaar and Mr Hughes agreed that the mix composition of the set coat was not defective because it had an adequate gypsum content.[24] In relation to the thickness of the set coat, Mr Machell considered it was acceptable and achieved its purpose to provide a flat durable finish to walls.[25] In Dr Zurhaar's opinion, a 1-2 millimetre set coat is normal in the Western Australian building industry and does not represent faulty or unsatisfactory work.[26] Mr Machell and Dr Zurhaar agreed that there is no governing standard or requirement for set coat thickness.
[24] Exhibit 1, page 65.
[25] Exhibit 1, page 68.
[26] Exhibit 1, page 68.
Painting of the plaster
32It is the respondent's position that Mr Anton Chekhov, the painter engaged by the first applicant, failed to ensure that the surface on which he was going to paint was suitable to commence painting. Mr Chekhov was engaged directly by the first applicant shortly after he took possession of the property and commenced painting on 22 October 2015. On 25 October 2015, Mr Chekhov raised concerns with the first applicant about the paint failing to adhere to the internal plasterwork.[27] He found the plasterwork to be both soft and chalky. According to the evidence of Mr Lukasz Zimowski, Mr Chekhov said, 'Man, you might have some problems'.[28] When asked in crossexamination what he did at this point, Mr Zimowski's said 'I stupidly asked Anton to keep painting'.[29]
[27] Exhibit 1, page 1127.
[28] ts 437, 16 June 2022.
[29] ts 437, 16 June 2022.
33The respondent says that proper workmanship practices dictate that a painter must conduct the following tests to satisfy themselves that the plaster is in proper condition prior to painting:[30]
[30] Exhibit 3, page 204.
1)close examination of the surface, a tape test to check adhesion and the condition of the substrate;
2)the 'scratch' (or fingernail) test to check hardness;
3)ensure the surface is dry (and conduct a moisture test with a moisture metre if in doubt);
4)treat any efflorescence; and
5)test the pH of the plaster with Litmus paper.
34In relation to the process that should have been undertaken prior to painting, the respondent relied on the following evidence of Dr Zurhaar:[31]
[31] ts 95, 13 June 2022.
It is clearly stated in the data sheets from all of the paint manufacturers that these are the processes a painter should go through before he actually starts painting, or it will lead to a problematic situation. And the poor adhesion of the paint on these walls is in itself clear evidence that the walls weren't ready for painting when they were painted.
35The respondent also relied on the evidence of Mr Machell who considered the time required to wait before painting walls after applying plaster. Mr Machell said:[32]
[32] ts 91, 13 June 2022.
... when the walls are wet and the humidity is high, then it can take considerable time: six, eight, 10 weeks, maybe even longer. When you've got high levels of lime, then it may take longer.
36Finally, the respondent observed that there was no identification of plaster deficiencies in the first Rawlinson report, which was prepared before Mr Chekhov undertook any painting of the internal walls.
37The applicants say that the Tribunal should not accept the respondent's argument that the problems with the plasterwork were caused by Mr Chekhov painting too soon because:
1)Based on the expert evidence before the Tribunal, the curing process could have taken up to a maximum of 12 weeks.[33] The plaster was applied well over three months before the walls were painted.[34]
[33] ts 93, 13 June 2022.
[34] ts 433, 16 June 2022.
2)The high void content in the float coat and the thinness of the set coat meant that the plaster dried out faster and, therefore, the curing process would have ended sooner.
3)Mr Chekhov checked the pH and moisture of the plaster and the tests indicated that the walls were acceptable.[35] Also, the walls did not have the distinct look and feel that they have when they have not cured.[36]
[35] ts 221, 14 June 2022; ts 229, 14 June 2022; Exhibit 1, page 1126 at paras 14 and 16.
[36] ts 131, 14 June 2022.
4)The walls did not display saponification and, therefore, there was no evidence that the paint had been applied too soon.[37]
[37] ts 250, 14 June 2022.
5)The respondent applied undercoat to some of the walls (to cover paint that had dripped from the painting of the ceiling and cornices) before Mr Chekhov painted.[38]
[38] ts 435, 16 June 2022; ts 443, 16 June 2022.
38The applicants reject the respondent's argument that Mr Chekhov should have completed other tests to satisfy himself that the plasterwork was in proper condition prior to painting. It is the applicants' position that defects in the plasterwork may be undetectable until one or more coats of paint have been applied. The applicants relied on the evidence of Mr Lawrence and Mr Anderson in support of their position.[39] Mr Anderson said that a painter should just do a moisture test and a pH test before going ahead with painting, and that a builder should provide a surface that is fit for purpose.[40] He also said that sometimes a painter must put on paint first to find out if there are defects with the plasterwork.[41] Mr Chekhov agreed with this statement.[42]
[39] ts 166, 14 June 2022; ts 229, 14 June 2022.
[40] ts 249-251, 14 June 2022.
[41] ts 251, 14 June 2022.
[42] ts 229, 14 June 2022.
Findings - internal plasterwork
39We find, based on the evidence of Mr Machell which we accept, that there was no evidence of delamination or spalling of the set coat. However, we accept the evidence of Mr Hughes, and we find, that the carbonation (or curing) process of the set coat ceased prematurely, and it had dried faster. There was no dispute, and we find, that if plaster dries too quickly the carbonation process will be inhibited and the mixture will be powdery.[43] Our findings are supported by the evidence of the applicants' expert witnesses who described the set coat plaster as being soft and chalky. It is not clear on the evidence before us why the set coat plaster did not cure fully but the applicants say that it was due to the porosity of the float coat and/or the thinness of the set coat.
[43] White Set Plaster Report, Master Painters & Decorators Australia, July 2016, Exhibit 1, page 586.
40The applicants contend that the set coat was too thin and was required to have a nominal thickness of at least 3 millimetres. Whilst we acknowledge that there were factors that inhibited the set coat carbonation (or curing) process, we are not satisfied that the plasterwork failed to meet industry standards for the following reasons. First, we accept the evidence of Mr Hughes and Dr Zurhaar, and we find, that the mix composition of the set coat was not defective. Second, based on the evidence of Mr Machell which we accept, the set coat showed no evidence of delamination, drumminess (hollowness) or spalling, and the trowelling marks were within acceptable limits.[44] Third, we find that HB 161:2005, which the applicants rely on as requiring a nominal set coat thickness of 3 millimetres, is a handbook or guide and not a standard;[45] nor is Industry Bulletin 071/2016 which is aimed at encouraging a best practice approach to the preparation and application of plaster and paint systems.[46] Fourth, whilst noncompliance with contract specifications may inform the issue of workmanship,[47] we accept the evidence of Mr Machell, and we find, that whilst the set coat did not have a nominal thickness of 3 millimetres[48] it did achieve its purpose of providing a flat surface or finish.[49]
[44] Exhibit 1, page 69; ts 82, 13 June 2022.
[45] Exhibit 1, page 675.
[46] Exhibit 1, page 597.
[47] Patronus Holdings Pty Ltd and Stamor Pty Ltd [2019] WASAT 147 at [118].
[48] ts 144, 14 June 2022.
[49] ts 70-71, 13 June 2022; Exhibit 1, page 68.
41The applicants further contend that under AS2350.16-2006 the physical properties of correctly mixed and applied float coat should have a typical void (air) content of 15% rather than the porosity of 48% reported by Mr Hughes.[50] We do not accept this contention. We find, based on the evidence of Mr Machell and Dr Zurhaar, which we accept, that AS2350.16-2006 relates to the methods of testing masonry binary cements, and not mortar (or render).[51] Further, the experts agreed, and we find, that the type of cement used in the render is unknown.[52] For these reasons, we are not satisfied that the porosity of the float coat was inconsistent with AS2350.16-2006 (or Table 1 of AS1316-2003 which sets out the physical requirements of masonry binary cement). There was also insufficient evidence before us to support a finding that the void content of the float coat was increased by the addition of a surfactant or other air-entraining agent.
[50] ts 53, 13 June 2022.
[51] ts 104, 13 June 2022.
[52] ts 101, 13 June 2022.
42Finally, we accept the evidence of Mr Machell and Dr Zurhaar, and we find, that the float coat had adhered to the bricks with no evidence of delamination or drumminess.[53] We further find that the minimum float coat thickness of 12 millimetres in HB 161:2005 is a guide and not a standard.[54] In any event, the experts agreed, and we find, that the float coat was not faulty or unsatisfactory on the basis of its thickness.[55]
[53] ts 82, 13 June 2022; ts 102; 13 June 2022.
[54] Exhibit 1, page 675.
[55] Exhibit 1, page 73.
43Based on these findings, we would decline to make a building remedy order because we are not satisfied that the respondent failed to carry out the internal plasterwork in a proper and proficient manner or that either the set coat or the float coat are faulty or unsatisfactory. However, if we are incorrect in our findings and the set coat is faulty or unsatisfactory because it had not fully cured, we next consider whether the respondent would nevertheless be absolved of responsibility because the walls were subsequently painted by Mr Chekhov.
44The decision of Willis and Fletcher [2015] WASAT 95 (Willis) is authority for the proposition that it is the responsibility of a painting contractor to undertake adequate testing to ensure that the condition of the plasterwork is suitable to paint.[56]
[56] Willis at [55] and [63]. See also Waldron and Afra Construction Pty Ltd [2013] WASAT 207 at [62]; Lowke and BGC Residential Pty Ltd [2017] WASAT 62 at [67].
45On 22 October 2015, Mr Chekhov commenced preparation works in anticipation of painting the walls of the property.[57] Although Mr Chekhov was not a registered painter at the time he was engaged by the applicants, we are satisfied that Mr Chekhov checked the pH and moisture levels of the set coat and, based on these tests, he concluded that the plasterwork was acceptable for painting.[58] Mr Chekhov said that the moisture of the walls was far below the recommended level,[59] which we observe is consistent with our finding that the set coat had dried.
[57] Exhibit 1, page 1126.
[58] Exhibit 1, page 1126; ts 221, 14 June 2022.
[59] ts 14 June 2022.
46On 25 October 2015, Mr Chekhov raised concerns with the applicants about the undercoat peeling and failing to adhere to the plaster.[60] He said that he found the plasterwork to be soft.[61] Despite his concerns, we find that Mr Chekhov did not undertake any further testing of the set coat, for example, he did not perform a tape or scratch test to confirm hardness as required by the Solver Paints product information sheet.[62]
[60] Exhibit 1, page 1127.
[61] ts 230, 14 June 2022.
[62] ts 236, 14 June 2022.
47Whilst there was evidence before us that the walls did not display saponification, we are satisfied that the plasterwork had not fully cured and, therefore, the walls were not suitable for painting. There are treatments that can be applied to plasterwork where the plaster is soft, and the surface is powdery. For example, the walls could have been treated with phosphoric acid to help the paint adhere.[63] Unfortunately, no treatment was attempted by Mr Chekhov. He was instructed by the applicants to complete the paint job and he did so.
[63] ts 141, 14 June 2022; Exhibit 1, page 727.
48For these reasons, we will decline to make a building remedy order in relation to the internal plasterwork complaints, being complaint item 23 in CC 910 of 2021 and complaint item 1 in CC 1807 of 2021.
What is the appropriate form of the building remedy order?
49We will next consider the appropriate form of the building remedy order in respect of those complaint items in Annexures A and B to these reasons which the respondent has conceded or for which we have found the respondent's work has not been carried out in a proper and proficient manner or is faulty or unsatisfactory.
50Pursuant to s 38(1) of the Act, the Tribunal may require a person who carried out a regulated building service that has not been carried out in a proper and proficient manner or is faulty or unsatisfactory to be the subject of a building remedy order.[64] Section 36(1) of the Act confers discretion on the Tribunal as to the form of the building remedy order. The building remedy order may specify the work to be performed or require a sum of money to be paid to the aggrieved person to remedy the building service or as compensation for the work not being carried out in a proper or proficient manner or being faulty or unsatisfactory. It is not the case that any failure to carry out the building service in a proper or proficient manner must result in the grant of a building remedy order.[65]
[64] See Northcott and Realgold Corporation Pty Ltd (ACN 117 580 560) [2020] WASAT 72 at [45]-[48] on the construction of the phrase 'has not been carried out in a proper and proficient manner or is faulty or unsatisfactory' in s 38(1) of the Act.
[65] See Lewis and Waco Pty Ltd [2016] WASAT 127 at [16].
51The applicants have expressed a strong preference for a monetary order under s 36(1)(b) of the Act because they assert that they have lost confidence in the respondent and that there has been an irretrievable breakdown in their relationship in the sense explained in Trengove and Celebration Nominees Pty Ltd [2012] WASAT 65 and, more recently, in Brooks and Gransden Building Company Pty Ltd [No 2] [2021] WASAT 86 (Brooks).
52The applicants have no right to elect the remedy sought under s 36(1) of the Act but are entitled to express a preference. In Gemmill Homes Pty Ltd v Sanders [2018] WASC 179 (Gemmill), Smith AJ, as her Honour then was, observed:[66]
[66] Gemmill at [133]-[135]
133It must be borne in mind that the statutory limits on the exercise of the discretion to make a building remedy order are only those set out in s 38. The repository of the power conferred to make an order (the Tribunal) must form an opinion that the regulated building service (that is the subject of the building service complaint) has not been carried out in a proper and proficient manner, or is faulty or unsatisfactory.
134If the requisite opinion is formed, the Tribunal is required to make a building remedy order. It then has to exercise the discretion conferred in s 36(1) to make a particular order in the form of s 36(1)(a), (b) or (c). Thus, no 'right' or requirement on a party to a complaint to elect arises.
135I do, however, agree with the point made in Nelson that the Tribunal has no power to compel an owner or require an owner or a person who has the right to control entry to a property to allow access to a site to enable an amount of work to be carried out in accordance with a building service work order. If there is evidence that such access was likely to be denied, then that would be a relevant matter of fact that the Tribunal could take into account.
53It follows that the Tribunal cannot fetter its discretion by simply adopting the applicants' preference for a monetary order. The applicants' preference, and reasons for seeking a monetary order, however, are relevant matters for the Tribunal to consider when determining the type of building remedy order to make.[67]
[67] Gemmill at [147].
54In Hippydayze Pty Ltd and Mener Group Pty Ltd [2019] WASAT 92 (Hippydayze), the Tribunal identified the following matters (which are not exhaustive) that may be relevant to the exercise of the Tribunal's discretion under s 36(1) of the Act, particularly when exercising its discretion to make a building remedy order in monetary terms:[68]
[68] Hippydayze at [126]; see also Brooks at [18].
… whether there has been an irretrievable breakdown in the relationship between the parties (Trengove and Celebration Nominees Pty Ltd [2012] WASAT 65 at [36]); whether an owner has justifiably lost confidence in the workmanship and skill of the respondent (Nelson v Mardesic (1998) 22 SR (WA) 42); whether the respondent has attempted to remedy the regulated building service previously unsuccessfully and whether the respondent has refused to perform remedial work when invited to do so[.]
55It is common practice to give the respondent builder an opportunity to remedy its own defective work. This is because an order to remedy compensates the owner while minimising the hardship to the builder who can usually carry out the work at substantially less cost than the amount charged by a third party contractor.[69] However, the nature and extent of the complaints may raise concerns about the proficiency and competency of the builder and support a finding by the Tribunal that a monetary order is more appropriate than ordering a builder to perform remedial work.[70]
[69] Nelson v Mardesic (1998) 22 SR (WA) 42 at 46.
[70] Jennings and Howitt [2019] WASAT 133 at [31].
56The respondent says that its aim has always been to rectify the items that require it and that the applicants' position that they have lost confidence in the respondent is unjustified.
Findings - relationship breakdown
57We accept the evidence of Mr Lukasz Zimowski, and we find, that when performing remedial work at the property, the respondent had demonstrated a lack of care for his home and belongings.[71] Mr Zimowski said that he would sell the property if the respondent performed the remedial work.[72] He has also refused the respondent access to the property to undertake work.[73] For these reasons, we are satisfied that the applicants have lost confidence in the respondent and, therefore, the respondent is likely to be denied access to the property.
[71] ts 440, 16 June 2022; Exhibit 1, pages 862, 867-873, 878.
[72] ts 465, 16 June 2022.
[73] ts 192, 14 June 2022.
58Despite the respondent's position that it is prepared to undertake further remedial work, and evidence from its witnesses that it had a relatively normal relationship with the applicants,[74] we find that the relationship of the parties has irretrievably broken down. The conduct of the parties, and the nature of their interaction, that support a finding that there has been an irretrievable breakdown in their relationship include:
[74] ts 171, 209, 14 June 2022; ts 400, 16 June 2022.
1)an employee of the respondent has, in the past, refused to undertake work at the property;[75]
[75] ts 442-443, 16 June 2022.
2)the respondent's attendance at the property in 2020 to investigate a complaint regarding moisture in the walls was on the condition that the applicants remove a negative social media post;[76]
[76] ts 182, 14 June 2022; ts 399, 477, 16 June 2022.
3)the applicants did not allow any further repairs in relation to the moisture in the walls after the respondent's waterproofing contractor attempted to remedy the issue;[77]
[77] ts 192, 14 June 2022.
4)offers were made by the respondent to remedy complaint item 1 but the work was not carried out;[78] and
[78] Exhibit 1, pages 1108-1109.
5)the applicants assert that representatives of the respondent had lied because Mr Lukasz Zimowski had been informed that there was no standard in relation to plaster thickness.[79]
[79] ts 455, 16 June 2022.
59We further find, based on the evidence before us, that the respondent had previously attempted to remedy some of the complaint items, including the waterproofing in the bathrooms, but that the parties' experts found the remedial work was unsuccessful.[80] Whilst the respondent successfully remedied a number of defects at the property in 2018,[81] we are satisfied that a monetary order is more appropriate than a remedial order due to the nature and extent of the remaining complaint items in Annexures A and B to these reasons that were not carried out by the respondent in a proper and proficient manner, or are faulty or unsatisfactory.
[80] Exhibit 1, page 1051; Exhibit 1, page 52 (complaint item 9, 11), Exhibit 1, pages 53-53 (complaint item 15).
[81] Exhibit 3, page 273; Exhibit 2, page 63.
60Consequently, for these reasons, we will make a building remedy order against the respondent under s 36(1)(b) of the Act in the form of an order to pay.
First applicant's claim for compensation
61Mr Lukasz Zimowski seeks compensation under s 36(1)(c) of the Act for consequential losses arising from stress and inconvenience. He is also seeking compensation under s 36(1)(c) of the Act for loss of rental income and the cost of obtaining expert reports prepared in respect of the respondent's failure to carry out a regulated building service in a proper and proficient manner or for faulty or unsatisfactory building work (complaint item 24).
62Mr Lukasz Zimowski relied on written evidence from his treating psychologist who reported that: 'I believe that rectifying this situation as soon as possible will have a very positive effect on Lukasz mental health'.[82] Mr Zimowski also gave evidence that he 'wanted everything properly fixed' and that the respondent's 'Band-Aid' approach had caused him stress.[83] In relation to inconvenience, Mr Zimowski argued that he has been deprived of the use of parts of his home for a considerable period of time. Mr Zimowski said that it has been necessary for him and his partner to live in the front of the home due to the moisture and mould issues.[84]
[82] Exhibit 1, page 1124.
[83] ts 464, 16 June 2022.
[84] ts 466, 16 June 2022.
63In contrast, the respondent argued that there is no evidence that demonstrates Mr Lukasz Zimowski has experienced anything over and above the usual and expected kinds of stress and inconvenience that homeowners often experience.[85] In any event, the respondent says that complaint item 24 has been the subject of substantial amendments since the dispute was referred to the Tribunal and, therefore, it should be dismissed on jurisdictional grounds.
[85] See Dumbreck and Tangent Nominees Pty Ltd [2017] WASAT 88.
Findings - claim for compensation
64We find, in so far as complaint item 24 is concerned, that the original complaint to the Commissioner was limited to loss of rent for one room for the period from 6 January 2021 onwards and invoices for works done and reports prepared (original complaint).[86] Based on this finding, we are satisfied that the nature and scope of complaint item 24 has expanded significantly since the original complaint was referred to the Tribunal by the Commissioner. The Tribunal does not have jurisdiction to determine claims made by the applicants that are beyond the scope of the original complaint to the Commissioner.[87]
[86] Exhibit 3, page 15 (items 23 and 24); Exhibit 3, pages 20-21 (items 21 and 22).
[87] Owners of Island Apartments Strata Plan 52597 and Pindan Pty Ltd [2017] WASAT 25 at [67]; The Owners of One Brighton Strata Plan 51948 and Pindan Pty Ltd [2018] WASAT 84 at [60].
65Consequently, we will make an order dismissing the claim made by the first applicant for compensation arising from stress and inconvenience. If we are incorrect, and the Tribunal has jurisdiction to determine this aspect of the first applicant's claim for compensation, we nevertheless find that there was insufficient evidence before us to support a finding that Mr Lukasz Zimowski was clinically diagnosed with depression and anxiety because of the respondent's building work. Mr Zimowski did not call his treating psychologist and, therefore, it was not possible for us to assess the reliability of the conclusions reached by the psychologist in the report adduced in evidence. Whilst Mr Zimowski has undoubtedly suffered stress and inconvenience from the delay in having the complaint items remedied, we are not satisfied that his experience went beyond that usually encountered by a homeowner who is in dispute with a builder.[88]
[88] See Hand and Arasi Constructions Pty Ltd [2020] WASAT 154 at [177].
66In relation to the claim for loss of rent, Mr Lukasz Zimowski said that his housemate in bedroom 2 left on 5 January 2021 because of the ongoing issues with the property.[89] The housemate paid Mr Zimowski $185 per week in rent.[90] The respondent's witness, Mr Stan Olow, said that he attended the property in December 2020 and undertook some remedial work in relation to mould after the respondent's waterproofing contractor was unsuccessful in its attempt to remedy the issue.[91] However, Mr Olow said that Mr Zimowski wanted to 'put a stop to everything'.[92] Based on the evidence of Mr Olow, the respondent contends that Mr Zimowski is not entitled to compensation for loss of rent because he did not allow any further remedial work to take place.
[89] ts 466, 16 June 2022.
[90] Exhibit 2, page 23.
[91] ts 192, 14 June 2022.
[92] ts 192, 14 June 2022.
67We do not accept the respondent's contention that Mr Lukasz Zimowski has failed to mitigate his loss. There was no dispute, and we find, that Mr Zimowski permitted a specialist contractor, engaged by the respondent, to enter the property to perform remedial work on the waterproofing issue in 2020 but that it was unsuccessful. We further find that Mr Zimowski subsequently permitted Mr Olow to attend the property in December 2020 to undertake further remedial work in relation to mould. For these reasons, we are satisfied that Mr Zimowski took reasonable steps to remedy the waterproofing issue and the effects of it.
68Mr Lukasz Zimowski engaged Mr York to inspect the property in March 2021. Although there was no visual sign of mould in bedroom 2, Mr York observed high moisture readings in the walls and floor.[93] We accept Mr York's observations, and we find, that on or about the time Mr Zimowski's flatmate left the property the moisture readings in the walls and floor of bedroom 2 were significantly higher than what would be expected from a new build.[94] Based on the evidence before us, we are satisfied that bedroom 2 has remained unoccupied since 5 January 2021 due to the presence of moisture caused by the unresolved waterproofing issue that is the subject of complaint item 11.[95] Consequently, we find that Mr Lukasz Zimowski is entitled to compensation from the respondent under s 36(1)(c) of the Act for loss of rent for bedroom 2 from 6 January 2021 to the date of our decision, and we will make an order in those terms.
[93] ts 264, 14 June 2022; Exhibit 1, page 492.
[94] Exhibit 1, page 492.
[95] Exhibit 1, page 1091; ts 462, 16 June 2022.
69We further find that Mr Lukasz Zimowski is entitled to compensation from the respondent under s 36(1)(c) of the Act for the costs he incurred in obtaining expert reports in respect of the complaint items which were not carried out by the respondent in a proper and proficient manner or are faulty or unsatisfactory. As a result of our findings in respect of the internal plasterwork, the order we will make entitling Mr Zimowski to the costs of expert reports is necessarily limited to reports prepared in respect of the complaint items in Annexure A and Annexure B which were conceded by the respondent or for which we have found it has responsibility for remedying.
70The Tribunal makes the following orders.
Orders
CC 910 of 2021
The Tribunal orders:
1.Pursuant to 46(1) of the State Administrative Tribunal Act 2004 (WA) the applicants have leave to withdraw complaint items 3, 5, 6, 13, and 16 and the items are dismissed pursuant to s 46(2) of the State Administrative Tribunal Act 2004 (WA).
2.Pursuant to s 38(1)(b) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) the Tribunal declines to make a building remedy order in respect of complaint item 23 and the item is dismissed pursuant to s 46(2) of the State Administrative Tribunal Act 2004 (WA).
3.Pursuant to s 38(1)(a) and s 36(1)(c) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) the respondent must pay compensation to the first applicant in respect of complaint item 24 relating to loss of rent and the cost of obtaining expert reports in respect of complaint items 1, 2, 4, 7, 8, 9, 10, 11, 12, 14, 15, 17, 18, 19, 20 (to be quantified) and the item is otherwise dismissed pursuant to s 46(2) of the State Administrative Tribunal Act 2004 (WA).
4.Pursuant to s 38(1)(a) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) the respondent is responsible for the cost of remedying complaint items 1, 2, 4, 7, 8, 9, 10, 11, 12, 14, 15, 17, 18, 19, 20 (to be quantified).
5.The proceeding is listed for a directions hearing at 9.30 am on 19 October 2022 for the matter to be programmed for final hearing to quantify the cost of remedying complaint items 1, 2, 4, 7, 8, 9, 10, 11, 12, 14, 15, 17, 18, 19, 20 and the compensation payable in respect of item 24.
CC 1706 of 2021
The Tribunal orders:
1.Pursuant to 46(1) of the State Administrative Tribunal Act 2004 (WA) the applicants have leave to withdraw complaint item 2 and the item is dismissed pursuant to s 46(2) of the State Administrative Tribunal Act 2004 (WA).
2.Pursuant to s 38(1)(b) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) the Tribunal declines to make a building remedy order in respect of complaint item 1 and that item is dismissed pursuant to s 46(2) of the State Administrative Tribunal Act 2004 (WA).
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS C BARTON, MEMBER
11 OCTOBER 2022
[96] Exhibit 1, page 57.
[97] Exhibit 1, page 57.
[98] ts 291, 15 June 2022.
[99] This complaint item was withdrawn by counsel for the applicants during an adjournment.
[100] Exhibit 1, page 823.
[101] Exhibit 1, page 58.
[102] ts 449, 16 June 2022.
[103] ts 332, 16 June 2022.
[104] Exhibit 1, page 58.
[105] ts 36, 13 June 2022.
[106] This complaint item was withdrawn by counsel for the applicant during an adjournment.
[107] Exhibit 1, pages 401-408; ts 354-355, 15 June 2022.
[108] Exhibit 1, page 580; ts 355, 15 June 2022.
[109] Exhibit 1, page 60; ts 362, 15 June 2022.
[110] Exhibit 1, page 203.
[111] ts 359-360; 15 June 2022; Exhibit 1, page 261.
[112] Exhibit 1, page 203.
[113] Exhibit 1, page 60.
[114] Exhibit 1, pages 424-429.
[115] ts 347, 22 June 2022.
[116] Exhibit 1, page 60; ts 363, 15 June 2022.
[117] ts 341, 15 June 2022.
[118] Exhibit 1, page 429.
[119] Exhibit 1, page 61.
[120] Exhibit 1, page 427.
[121] Exhibit 1, page 429.
[122] Exhibit 1, pages 424-429.
[123] Exhibit 1, page 60, ts 36, 13 June 2022.
[124] Exhibit 1, page 60, ts 365-366, 15 June 2022.
[125] Exhibit 1, page 60; ts 365-366, 15 June 2022.
[126] Exhibit 1, page 430.
[127] Exhibit 1, page 61.
[128] ts 365-367; 15 June 2022.
[129] ts 483-484, 16 June 2022.
[130] Exhibit 1, pages 60-61; ts 258-262, 14 June 2022.
[131] This complaint item was withdrawn by counsel for the applicant during an adjournment.
[132] Exhibit 1, page 60; ts 365-367, 15 June 2022.
[133] ts 483-484, 16 June 2022.
[134] Exhibit 1, pages 60-61; ts 258, 262, 14 June 2022.
[135] Exhibit 1, pages 61-62.
[136] Exhibit 1, pages 61-62.
[137] Exhibit 1, pages 61-62.
[138] Exhibit 1, pages 61-62.
[139] Exhibit 1, pages 61-62.
[140] Exhibit 1, pages 61-62; ts 375, 15 June 2022.
[141] Exhibit 1, pages 61-61.
[142] Exhibit 1, page 61.
[143] Exhibit 1, page 61.
[144] Exhibit 1, page 61.
[145] Exhibit 1, page 61.
[146] Exhibit 1, page 61.
[147] Exhibit 1, page 61.
[148] Exhibit 1, page 62; ts 375, 15 June 2022.
[149] Exhibit 1, page 62.
[150] ts 381, 15 June 2022.
[151] Exhibit 1, page 54.
[152] Exhibit 1, page 62.
[153] Exhibit 1, page 62.
[154] ts 384, 15 June 2022.
[155] Exhibit 1, pages 57-58.
[156] Exhibit 1, page 57.
[157] ts 291, 15 June 2022.
| Annexure A - Items of Complaint in CC 910/2021 | ||||
| Complaint Item | Description (as per Applicants' Scott Schedule) | Respondent's position on liability and scope of remedial works | Applicants' position on liability and scope of remedial work | Tribunal's findings |
| 1 | Installation of TV antenna on roof Antenna is mounted in valley gutter. Leaves and debris will collect and restrict waterflow down the valley gutter therefore allowing water to break through the roof void. Accordingly, the respondent's building service has not been performed in a proper and proficient manner or is faulty or unsatisfactory. | Conceded. | We accept the evidence of Mr Machell and Mr Lawrence in relation to the work required to remedy this item.[96] Accordingly, the respondent is required to relocate the television antenna by moving the existing bracket to the nearest rafter and with a suitable flashing over the tile so that it may penetrate. | |
| 2 | Roof Structure Unevenness in roof surface due to deflection of roof timbers under load and of roof timbers not being long enough. Roof not installed in accordance with AS 1684.2-2010 residential timberframed construction - noncyclonic areas. Accordingly, the respondent's building service has not been performed in a proper and proficient manner or is faulty or unsatisfactory. | Conceded. | The expert witnesses agreed on the scope of work to remedy this complaint item and we accept their evidence.[97] Accordingly, the respondent is required to supply and install a new LVL strutting beam in the roof as close as possible to the underpurlin, with new struts to the existing underpurlin, in accordance with AS 1684.2.[98] | |
| 3 | Roof capping Capping tiles of hips/ridges cracking and separating creating an opening for water ingress into roof space. Accordingly, the Respondent's building service has not been performed in a proper and proficient manner or is faulty of unsatisfactory. | Withdrawn.[99] | ||
| 4 | Ceilings/Eaves of house (external) The front eave (soffit) lining boards are water stained in sections. The staining has been caused by roof leaks and/or water backflowing from gutters. Accordingly, the respondent's building service has not been performed in a proper and proficient manner or is faulty or unsatisfactory. | Disputed. The gutter was completed by the builder in 2015 and was not identified as being defective when the property was comprehensively inspected in October 2015 by the applicants' building inspector, Mr Rawlinson.[100] The experts were unable to determine how and when the gutter became squashed.[101] If the gutter was squashed by someone other than the builder, and after it was installed, the respondent is not responsible for it and should not be ordered to fix it. There is no evidence that the gutter was defective when it was installed. There is insufficient evidence to conclude that the item represents defective work by the respondent. | The first applicant has not been on the roof.[102] Accordingly, the most likely explanation is that the gutter was damaged by the respondent. | We accept the evidence of Mr Lukasz Zimowksi and, and we find, that he has not been on the roof since the gutter was installed. On this basis, we are satisfied that in relation to the squashed gutter the respondent carried out a regulated building service in a manner that is faulty or unsatisfactory. Notwithstanding the evidence of Mr Machell and Mr Lawrence that they do not know how the gutter became squashed,[103] we accept their evidence in relation to the work required to remedy this item. Accordingly, the respondent is to reform upturn of secret gutter where squashed (being to the left of the entrance to the house).[104] The experts did not comment on the need to replace the stained soffit board and, consequently, the building remedy order is limited to the remedial work required to rectify the gutter. |
| 5 | External rendered wall No weepholes to rendered wall to drain moisture from or through masonry construction. No Damp-Proof Course (DPC) that should be incorporated into the masonry. Weepholes shall be provided in the masonry course immediately above the DPC at centres not exceeding 1200 mm. Weepholes are required for any window wider than 1m where there is no overhang, or the roof overhang is not 3 times the distance between the top of the window and the bottom of the roof as required by AS3700 - 4.7.2 Weepholes. Accordingly, the Respondent's building service has not been performed in a proper and proficient manner or is faulty or unsatisfactory. | Withdrawn.[105] | ||
| 6 | Fibre sheets outside of garage Joint mould to sections of fibre sheet separating and all nails sticking through eaves. | Withdrawn.[106] | ||
| 7 | Bathroom/Ensuite 1 - bath Bath not correctly installed as walls are behind the lip of the bath that acts as a waterproof stop, needs to comply with AS3740. Water is able to ingress between bath and wall that may cause water/moisture damage. The bath 1 bathtub, nib, and the opposing side of shower in Bed 2 displayed peeling and excessive dampness consistent with water leakage. The inspector used the aid of a TRAMEX moisture meter and found the moisture H2O contend was well over 30% in the walls. | Disputed. Mr Machell and Mr Lawrence agreed that a bath lip does not need to be recessed into the wall where it complies with the Building Commission publication entitled 'Interpretation of Part 3.8.1 of BCA Volume 2' dated October 2010. Mr Lawrence says that water is able to enter between the bath lip and the wall. Mr Machell says that the junction between the bath lip and the wall is sealed and does not allow water to enter at this location. Both experts agreed in the joint expert report that there is no evidence to support that the bath has or has not been installed in accordance with the Building Commission document referred to above. There is otherwise no evidence to support the remaining aspects of the complaint item. Water is unable to ingress between the bath and wall, and no evidence of water ingress or damage was found in respect of this complaint item. | As the photographs taken by Mr Lawrence show,[107] the bath was not installed in accordance with the Building Commission's Advisory Note entitled 'Interpretation of Part 3.8.1 of BCA Volume 2' dated October 2010. | We accept the evidence of Mr Lawrence at the final hearing, and we find, that there is no evidence of a silicone seal or sealant between the bath lip and the wall (nominal 15mm above the bath) contrary to the Building Commission's Advisory Note entitled 'Interpretation of Part 3.8.1 of BCA Volume 2' dated October 2010. On this basis, we are satisfied that the respondent carried out a regulated building service in a manner that is not proper or proficient or is faulty or unsatisfactory. If found responsible in respect of this item, the respondent agreed that it should be remedied in accordance with the 'BathWall Junction (No Shower) Common Practice Solution' document.[108] Accordingly, based on our findings, the respondent is to re-install the bath in accordance with the Building Commission's Advisory Note entitled 'Interpretation of Part 3.8.1 of BCA Volume 2' dated October 2010 which attaches the deemed-to-satisfy solution entitled, 'Bath-Wall Junction (No Shower) Common Practice Solution'. |
| 8 | Toilets in house (isolated rear toilet) Toilet pans (isolated rear toilet) only siliconed down, and thus may become loose fitting on floor and/or crack pan. Not installed in compliance with AS/NZS3500.2.2 - 11.27.2, plumbing All toilets in the property have been installed incorrectly however remedial works for toilets in bathrooms 1,2 and 3 are comprised in complaint 15. | Disputed. Mr Machell and Mr Lawrence agreed that where screws in the bottom of the toilet pan are not installed in the first instance, they should have been installed, and that where screws have been removed by the owner, then the owner should replace them. Neither expert knew if the screws were or were not installed in the first instance. Both agreed that the toilet pan is not loose.[109] If there had been loose screws lying by the side of the pan following completion by the builder, this would have been noted in first Rawlinson report. However, there is no mention of this in that report, and the only reasonable conclusion to reach is that the applicants or an agent engaged by them removed the screws at some point after the builder completed installation of the toilets. There is insufficient evidence to find that the builder failed to install the toilets correctly. | Mr Lawrence stated that a toilet must be attached to the floor with 'Silicone AND Anchor'.[110] The screws around the bottom of the toilet were not anchored to the floor, nor had they ever been anchored to the floor.[111] Accordingly, the suggestion that the screws were removed by the applicants is rejected. | We accept the evidence of Mr Lawrence, and we find, that the toilet pan should be attached to the floor with silicone and anchor. We further find, based on the evidence of Mr Lawrence, which we accept, that the bottom of the toilet had not been anchored to the floor. There was no evidence before us to support a finding that the screws had been removed by the applicants. For these reasons, we are satisfied that the respondent carried out a regulated building service in a manner that is not proper or proficient or is faulty or unsatisfactory by failing to anchor the pan with a fixing device. Accordingly, the respondent is to reinstall the toilet pan by using silicone and screws to anchor the toilet pan as required and in accordance with AS/NZS3500.2.2 - 11.27.2.[112] |
| 9 | Walls behind bathroom 3 The bathroom 3 bathtub, and the opposing side of shower in bedroom 3 and hallway peeling paint and excessive dampness consistent with water leakage. Moisture H2O contend over 30% in the walls in that area. Normal arrange on the TRAMEX is 0 – 14% H2O. A moisture reading of 16.7% WME was taken from just below the power point in Bedroom 3, which is concerning as there is a possibility of moisture condensation to the back of the power point. The wall adjoining the bathroom shower recess, when pulling carpet back from the smooth edge, has visual signs of moisture and mould growth on the smooth edge, which is more evidence of water ingress. | The respondent accepts that the waterproofing membrane in the shower has failed but disputes the balance of the complaint insofar as it relates to the scope of the remedial work required. Mr Machell and Mr Lawrence agreed that the remedy is to remove tiles as required and to install a waterproofing membrane in accordance with AS 3740, and to make good. They also agreed that the hob of the shower is not adequately waterproofed in accordance with AS 3740.[113] Mr Machell's report outlines specifics of remedial work required.[114] | Mr Lawrence observed that different batches of the same tiles have a different appearance.[115] Consequently, replacing some tiles would leave the applicants with mismatching tiles. Accordingly, the applicants' primary position is that all tiles should be replaced. The applicants' secondary position is that tiles should be replaced as reasonably necessary for the works. | We accept the evidence of Mr Lawrence and Mr Machell that the bathroom tiles should be removed as required and a waterproofing membrane installed in accordance with AS 3740.[116] Based on the evidence before us, we are not satisfied that different batches of the same tiles will have a different appearance[117] and, therefore, it is unnecessary for the respondent to remove and replace all tiles. Accordingly, to remedy this item, the respondent is required to remove the shower recess tiles and wall tiles to a height of no less than 25mm above the shower hob and replace them after the installation of a water proofing membrane.[118] The experts agreed, and we find, that removal and replacement of the floor waste may be required to comply with AS 3740.[119] In addition, the respondent is required to install waterproofing membrane in the perimeter wall junctions of the bathroom, including at the doorway, consistent with the NCC at table 3.8.1.1 and AS 3740 at 3.9.1.2(b).[120] The floor and wall tiles at these locations must be removed and replaced following installation of the membrane. Waterproofing membrane is also required in the shelf area of the bath and, therefore, the horizontal bath hob tiles and wall tiles must be removed to a height in order to achieve a perimeter flashing (2 sides only) and replaced after the installation of a waterproofing system in accordance with the NCC and AS 3740.[121] Finally, the respondent must install a water stop below the shower screen frame on top of the hob, repair the affected walls outside bathroom 3 and remove damaged bamboo floorboards outside the bedroom 3 door and along the passage to the door of bathroom 3 and replace to the extent required to achieve a reasonable match to the existing boards.[122] |
| 10 | Internal dry floor drainage Drainage is blocked with builder's debris. | Conceded. | The respondent is required to clean debris from the dry floor wastes.[123] | |
| 11 | Bedroom 2 - left wall Moisture and mould damage to wall due to waterproofing failure and leak from bathroom 1. The opposing side of shower in Bed 2 displayed peeling and excessive dampness consistent with water leakage. TRAMEX moisture meter and found the moisture H2O contend was well over 30% in the walls. Normal range on the TRAMEX is 0-14% H2O. | Conceded. It emerged in the joint expert conferral and at hearing that the scope of complaint item 9 would be an appropriate remedy for this complaint.[124] | We accept the evidence of Mr Lawrence and Mr Machell in relation to the scope of work required to remedy this complaint item.[125] Accordingly, the respondent is required to remove the shower recess tiles and wall tiles to a height of no less than 25mm above the shower hob and replace them after the installation of a water proofing membrane in accordance with the NCC and AS 3740.[126] The experts agreed, and we find, that removal and replacement of the floor waste may be required to comply with AS 3740.[127] The respondent must install a water stop below the shower screen frame on top of the hob and repair the affected walls in bedroom 2. | |
| 12 | Bedroom 2 - carpet The wall opposing bathroom 1 shower displayed a moisture meter reading exceeding 30% H20 (MATRIX safety normal range level 0-14%). The carpet in bedroom 2 was uplifted to reveal high concentration of mould to the timber, underlay and carpet and revealed a strong musty odour. | Conceded It emerged at hearing that the scope of complaint item 11 would be an appropriate remedy for this complaint.[128] The applicant no longer seeks removal and replacement of the carpet in its entirety and is content that the carpet can be treated and cleaned.[129] | In addition to the works required in respect of complaint item 11, the respondent is required to clean and treat the concrete, carpet, and backing of the carpet in bedroom 2 for mould.[130] | |
| 13 | Internal ceilings Internal ceiling has sagged in areas due to poor installation including but limited to the poor adhesion/fixing connecting the sheets to the underside of the ceiling battens or bottom chord of joist. The spacing of both adhesive and fixing do not comply with the minimum AS/NZS 2589 and Manufacturer's Installation Guidelines. | Withdrawn.[131] | ||
| 14 | Bedroom 3 - carpet Bedroom 3 carpet and underlay damaged due to moisture from bathroom 3. Builder used maintenance company to repair on 18 December 2020 after promising a mould inspection. Mould discovered again by Building Inspector James Lawrence and Mould Inspector Hayden York in March 2021. Moisture meter exceeded 30% H20 (MATRIX safety normal range level 014%). Carpet was uplifted to reveal high concentration of mould to the timber, underlay and carpet with a strong musty odour. Bedroom 3 and Bathroom 3 was sealed off by request of the Mould Inspector. Power point was isolated due to high moisture. | Conceded. It emerged at hearing that the scope of complaint item 9 would be an appropriate remedy for this complaint.[132] The applicants no longer seek removal and replacement of the carpet in its entirety and is content that the carpet can be treated and cleaned.[133] | In addition to the works required in respect of complaint item 9, the respondent is required to clean and treat the concrete, carpet, and backing of the carpet in bedroom 3 for mould.[134] | |
| 15 | Bathrooms/Ensuites/Laundry All bathrooms High moisture, mould damage and unhealthy living conditions due to leaks from waterproofing and bathroom installation failure in all bathrooms. Bathroom/Ensuite 1 a) The bath tub, nib and opposing side of shower of bedroom 2 displaying peeling and excessive dampness consistent with water leakage. b) TRAMEX moisture meter and found themoisture H2O contend was well over 30% in the walls. Normal arrange on the TRAMEX is 0-14% H2O. Long moisture exposure has caused mould harmful to health. c) Waterproofing membrane failure due to incorrect application of membrane and or damage to the membrane during tile laying. d) Shower floor waste drainage pipe missing essential drainage flange (puddle flange) fitted to avert leakage. Waterproofing e) Water stop not adequately sealed or water-proofed to the floor in accordance with AS3740-3.9.1.2. f) Screed mixture used under tiling found to have excessively high sand component with a cement to sand ratio of 1:44 rather than recommended 1 part cement and 4 parts sand. This has caused poor adhesion and contributed to poor waterproofing. g) Unenclosed shower screen not set on the water-stop shower recess in accordance with AS3740-3.13.5. Failure to prevent water discharging outside shower area in accordance with AS3740-3.4. h) Shower Proprietary flange systems have insufficient seal between the shower nozzle penetration and large gap of wall tiles that exceeds the flange rubber seal. Failure to install sealant around the nozzle penetration and wall tile in shower to compensate oversize gap of tile hole in accordance with AS3740 -3.10, causing water to penetrate behind wall tile. Bathroom/Ensuite 2 a) TRAMEX moisture meter and found the moisture H2O contend was well over 30% in the walls. Normal arrange on the TRAMEX is 0-14% H2O. Long moisture exposure has caused mould harmful to health. b) Waterproofing membrane failure due to incorrect application of membrane and or damage to the membrane during tile laying. c) Shower floor waste drainage pipe missing essential drainage flange (puddle flange) fitted to avert leakage. Waterproofing d) Screed mixture used under tiling found to have excessively high sand component with a cement to sand ratio of 1:47 rather than recommended 1 part cement and 4 part sand. This has caused poor adhesion and contributed to poor waterproofing. e) Shower Proprietary flange systems have insufficient seal between the shower nozzle penetration and large gap of wall tiles that exceeds the flange rubber seal. Failure to install sealant around the nozzle penetration and wall tile in shower to compensate oversize gap of tile hole in accordance with AS3740-3.10, causing water to penetrate behind wall tile. f) water stop not adequately sealed or water-proofed to the floor in accordance with AS3740-3.9.1.2. Bathroom/Ensuite 3 g) TRAMEX moisture meter and found the moisture H2O contend was well over 30% in the walls. Normal arrange on the TRAMEX is 0-14% H2O. Bed 3 opposing Bathroom 3 moisture reading also exceeded 30% H20. Long Moisture exposure has caused mould harmful to health. h) Waterproofing membrane failure due to incorrect application of membrane and or damage to the membrane during tile laying. i) Shower floor waste drainage pipe missing essential drainage flange (puddle flange) fitted to avert leakage. Waterproofing j) Screed mixture used under tiling found to have excessively high sand component with a cement to sand ratio of 1:55 rather than recommended 1 part cement and 4 part sand. This has caused poor adhesion and contributed to poor waterproofing. k) Shower Proprietary flange systems have insufficient seal between the shower nozzle penetration and large gap of wall tiles that exceeds the flange rubber seal. Failure to install sealant around the nozzle penetration and wall tile in shower to compensate oversize gap of tile hole in accordance with AS37403.10, causing water to penetrate behind wall tile. l) Water stop not adequately sealed or water-proofed to the floor in accordance with AS3740-3.9.1.2. m) The respondent has attempted to undertake repairs to the shower of bathroom 3 using an inadequate and unsuitable grout product rather than sealant. n) Drummy tiles exceed 20% allowance provided for under AS3958.1:2007 section 5.4.7. Laundry a) The Laundry linen closet wall has a moisture reading of 12.1% WME. b) Bathroom 2 and the opposing side of shower in Wet Closet (WC) and Laundry Linen cupboard displayed paint peeling and excessive dampness consistent with water leakage. TRAMEX moisture meter and found the moisture H2O contend was well over 30% in the walls. Normal arrange on the TRAMEX is 014% H2O c) Waterproofing membrane failure due to incorrect application of membrane and or damage to the membrane during tile laying. d) Screed mixture used under tiling found to have excessively high sand component with a an excessively high sand to cement mix ration causing poor adhesion and contributed to poor waterproofing and moisture issues in laundry linen closet. | The respondent accepts that defects have been identified and accepts these as framed by the experts but disputes the balance of the complaint insofar as it relates to the remedial work required. The joint expert report deals with complaint item 15 in the following terms: Bathroom/Ensuite 1 The experts noted that the works described for complaints 9, 11 and 12 would address this portion of the complaint and otherwise agreed that the following works are required: 1. a waterstop be installed at the doorway of all bathrooms abutting adjacent rooms or passages; 2. a waterstop be installed at the tile edge, to a distance of 1500mm from the shower outlet; and 3. pipe penetration of the tiles be sealed with suitable sealant where the proprietary seal behind the flange is not functional.[135] The experts found no evidence of poor adhesion of tiles or poor waterproofing associated with the sand/cement ratio of the screed.[136] Bathroom/Ensuite 2 The experts noted that the works described for complaints 7, 9, 11 and 12 would address this portion of 1. pipe penetration of the tiles should be sealed with a suitable sealant, where the proprietary seal behind the flange is not functional; 2. a waterstop be installed at the doorway of all bathrooms abutting adjacent rooms or passages. The experts found no evidence of poor adhesion of tiles to the substrate or poor waterproofing associated with the sand/cement ratio of the screed.[137] Bathroom/Ensuite 3 The experts noted that the works described for complaints 7, 9, 11 and 12 would address this portion of the complaint and otherwise agreed that the following works are required: 1. pipe penetration of the tiles should be sealed with a suitable sealant, where the proprietary seal behind the flange is not functional; 2. a waterstop be installed at the doorway of all bathrooms abutting adjacent rooms or passages.[138] The experts found no evidence of poor adhesion of tiles to the substrate or poor waterproofing associated with the sand/cement ratio of the screed and agreed that to the extent any drumminess existed, it was within acceptable tolerances.[139] Laundry The experts noted that the works described for complaints 7, 9, 11 and 12 would address this portion of the complaint and otherwise agreed that floor junctions required waterproofing.[140] The experts noted that there was no evidence of poor adhesion of the tiles to the substrate or poor waterproofing associated with the sand/cement ratio of the screed.[141] | All bathrooms The applicants agree with the respondent in relation to the water stop at the doorway. Bathroom 1 The applicants repeat their submissions in respect of item 11. The applicants agree with the scope of work in relation the water stop at the tile edge of the shower. Bathroom 2 The applicants repeat their submissions in respect of item 9, which concerns bathroom 3, but in relation to bathroom 2. Bathroom 3 The applicants repeat their submissions in respect of item 9. | We accept the evidence of the joint experts in relation to the scope of work required to remedy this complaint item. All bathrooms The respondent is required to install a water stop at the doorway of all bathrooms.[142] To install a water stop, tiles will need to be removed and replaced. The experts agreed, and we find, that there is no evidence of poor adhesion of tiles to the substrate or poor waterproofing associated with the sand/cement ratio of the screed.[143] Bathroom/Ensuite 1 The respondent is required to install a waterstop at the tile edge of the unenclosed shower, to a distance of 1500mm from the shower outlet in accordance with AS 3740.[144] The pipe penetration of tiles is required to be sealed where the proprietary seal behind the puddle flange is not functional.[145] Bath/Ensuite 2 The pipe penetration of tiles is required to be sealed where the proprietary seal behind the puddle flange is not functional.[146] Bath/Ensuite 3 The pipe penetration of tiles is required to be sealed where the proprietary seal behind the puddle flange is not functional.[147] Laundry The experts agreed, and we find, that the floor junctions require waterproofing.[148] Accordingly, the respondent is required to waterproof the floor junctions. The experts agreed, and we find, that there is no evidence of poor adhesion of tiles to the substrate or poor waterproofing associated with the sand/cement ratio of the screed.[149] |
| 16 | All bathrooms (1, 2, 3) The screed was of compacted yellow sand and not the correct method of screed application of cement and sand. | Withdrawn.[150] | ||
| 17 | Bamboo floor in hallway near bedroom 3, 4 and bathroom 3 Moisture and mould damage to bamboo floor due to bathroom 3 leaks from failed waterproofing. Damage to whole section adjoining to Bathroom 3. | Conceded on the basis that the bamboo flooring itself does not represent defective work, rather it is a consequence of Waterproofing issues identified in bathroom 3. | Mr Lawrence and Mr Machell, agreed that the affected areas of bamboo floors should be repaired or replaced to achieve a uniform and consistent appearance.[151] | We accept the evidence of Mr Lawrence and Mr Machell in relation to the scope of work required to remedy this complaint item. Accordingly, the respondent is required to repair or replace the water affected areas of bamboo floor to achieve a uniform and consistent appearance.[152] |
| 18 | Ceilings in lounge Minor paint defects to two (2) areas where builder has completed remedial works such as lounge and hallway. | Conceded. | The respondent is required to paint the entirety of ceiling in the lounge (referred to as the family room on floorplan), including the cornices.[153] | |
| 19 | Internal doors and frames Edges of all doors throughout required to be sealed and painted with correct amount of coating. | Conceded. | The respondent is required to seal the top and bottom edge of all internal doors.[154] | |
| 20 | Inside roof/alfresco Various struts have not been correctly skew nailed as required by AS1684.27.2.15.1 Various fan struts have not been correctly skew nailed with 4/75mm nails as required by AS1684.29.2.15.3. | Disputed on the basis that the experts identified this complaint item as being a duplication of complaint 2.[155] | Notwithstanding that the expert witnesses agreed that this complaint item is a duplication of complaint item 2, they agreed on the scope of work required to remedy the item and we accept their evidence.[156] Accordingly, the respondent is to supply and install a new LVL strutting beam in the roof, as close as possible to the underpurlin, with new struts to the existing underpurlin, in accordance with AS 1684.2.[157] | |
| 23 | Internal walls/plaster Plaster work failure throughout inside of the property of reason that: a) Plaster is soft, chalky and powdery through to float coat and comes off the wall on conducting a 'tape test' evidencing the Respondent has failed to use the correct plaster mix. b) The plaster has not been applied in accordance with AS2311:2009 or manufacturer's standards. c) The thickness of the white set plaster is below the 3mm thickness recommended by all industry, building and manufacturer's standards. d) The white set plaster did not achieve nominal thickness nor come close to nominal thickness prescribed by accepted industry standards. e) The white set plaster has also been applied with uneven trowelling causing significant unevenness and lumpiness of finish. | Disputed. | Strip set coat from walls, apply set coat, and paint walls. | For the reasons set out in the main body of the Tribunal's decision, we are not satisfied that the respondent carried out a regulated building service in a manner that was not proper or proficient or was faulty or unsatisfactory. |
| 24 | Stress and/or inconvenience a) The applicant has suffered such stress as a result of the respondent's failure to provide proper and proficient building services that the applicant has been clinically diagnosed with depression and anxiety and suffers panic attacks. The applicant has been forced to seal off bedroom 3 and bathroom 3 due to mould being detected by Healthy Building Systems (see the HBS Report) which has posed a health risk to the applicant who has preexisting respiratory problems. The applicant and his spouse have been unable to utilise the rear of the house as a result and have been living out of bedroom 1 and 2, the kitchen and dining room since January 2021. b) The applicant has suffered and will further suffer financial loss by reason of the respondent's failure to provide proper and proficient building services including but not limited to: i. Loss of rent ii. Relocation costs during anticipated rectification works including removalist costs and rent cost for property rental until completion of works; iii. Cost incurred in relation to obtaining expert reports and legal costs c) Provision for dust mitigation and clean-up of builder's debris on completion of rectification works as outlined in WAIB Report - Item 6-14. d) Provision for other incidental works/costs to be undertaken in order to facilitate all relevant rectification works including: i. Remove and install all fixed mirrors ii. Remove and reinstate all built in cabinetry and shelving to facilitate rectifications works iii. Furniture removal and storage iv. Builders insurance under Home Building Contracts Act 1991 (WA). | Disputed. | This complaint item is addressed in the main body of the Tribunal's decision. |
| Annexure B - Items of Complaint in CC 1706 of 2021 | ||||
| Complaint Item | Description (as per Applicants' Scott Schedule) | Respondent's position on liability and scope of remedial works | Applicants' position on liability and scope of remedial work | Tribunal's findings |
| 1 | Float coat plaster The void (air) content within the float coat is very high having approximately 48% porosity when according to AS2350.16 the physical properties of correctly mixed and applied float coat should have a typical void (air) content of 15%. The void and remnant bubble | Disputed. | Strip off float coat and set coat and re-plaster the walls if float coat found to be defective.[158] | For the reasons set out in the main body of the Tribunal's decision, we are not satisfied that the respondent carried out a regulated building service in a manner that was not proper or proficient or was faulty or unsatisfactory. Accordingly, we will decline to make a building remedy order in respect of this complaint item. |
| 2. | Rear waste containment Screed mixture used under tiling found to have excessively high sand component with an excessively high sand to cement mix ration causing poor adhesion and contributed to poor waterproofing and moisture issues and does not satisfy requirements set out in AS3958.1 - 4.2.2. | Withdrawn.[159] | ||
[158] Exhibit 1, page 74.
[159] ts 384-385, 15 June 2022.
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