ZIMOWSKI and IDEAL HOMES PTY LTD - [2022] WASAT 90

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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2022] WASAT 90
Decision Date: 11 OCTOBER 2022

CaseChat Overview and Summary

The case of Zimowski and Ideal Homes Pty Ltd was heard in the Australian Consumer and Competition Commission (ACCC) where the dispute centred around the quality of internal plasterwork completed by Ideal Homes Pty Ltd on a property owned by Zimowski. The primary issue was whether the builder had failed to carry out the building service in a proper and proficient manner, resulting in faulty or unsatisfactory building work. Specifically, the quality of the internal plasterwork was called into question, with the ACCC arguing that Ideal Homes Pty Ltd did not test the plaster properly before applying the finish. The builder contended that the plasterwork was satisfactory and that any issues arose due to the property's condition.

The court was tasked with determining whether the builder had indeed failed to perform the service in a proper and proficient manner, thereby breaching the consumer guarantee under the Australian Consumer Law. The court examined whether the builder had an obligation to test the plaster before applying the finish and whether such a failure constituted faulty or unsatisfactory work. The court also considered the broader implications of the relationship between the parties, including whether there was an irretrievable breakdown in their relationship and whether Zimowski had lost confidence in the builder.

In its decision, the court found that the plasterwork was not of a satisfactory quality as it was not properly and proficiently carried out. The court held that Ideal Homes Pty Ltd had failed to test the plaster before applying the finish, which was a fundamental aspect of their obligation. The court concluded that this failure constituted faulty or unsatisfactory building work, thereby breaching the consumer guarantee. Consequently, the court issued a building remedy order, a monetary order, and a compensation order in favour of Zimowski. These orders required Ideal Homes Pty Ltd to remedy the defective work, pay a penalty, and compensate Zimowski for the costs associated with the defective work.

Orders