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FAQIRI and A & M CONSTRUCTION GROUP PTY LTD [2022] WASAT 79 (5 September 2022)

Last Updated: 6 September 2022

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

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

CITATION : FAQIRI and A & M CONSTRUCTION GROUP PTY LTD [2022] WASAT 79

MEMBER : MS V HAIGH, MEMBER

MR R AFFLECK, SENIOR SESSIONAL MEMBER

HEARD : 15 AND 16 DECEMBER 2021 AND 17 JUNE 2022

DELIVERED : 5 SEPTEMBER 2022

FILE NO/S : CC 173 of 2022

CC 1233 of 2020

CC 1572 of 2020

BETWEEN : FATIMA FAQIRI

First Applicant

HAFIZULLAH FAQIRI

Second Applicant

AND

A & M CONSTRUCTION GROUP PTY LTD

Respondent

Building service complaint - Building remedy order - Whether work has not been carried out in a proper and proficient manner or is faulty or unsatisfactory - Monetary order sought by owner - Compensation - Failure to mitigate loss

Legislation:

Building Act 2011 (WA), s 3
 Building Services (Complaint Resolution and Administration) Act 2011  (WA),  s 3 ,  s 5(1) ,  s 7(1) ,  s 9(1) ,  s 10 ,  s 11(1)(d) , s 36(1),  s 36(2) ,  s 38(1)(a) ,  s 38(1)(b) 

Result:

CC 1233 of 2020 and CC 1572 of 2020
Applications partly successful
CC 173 of 2022
Application partly successful in relation to one item

Category: B

Representation:

Counsel:

Solicitors:

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

Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613

Diploma Construction (WA) Pty Ltd v South Central WA Pty Ltd [2015] WASC 289

Gemmill Homes Pty Ltd v Sanders [2018] WASC 179

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

Nelson v Mardesic (1998) 22 SR (WA) 42

Owners of Strata Plan 59377 and Carine Homes Pty Ltd [2014] WASAT 39

Total Investments Pty Ltd and Rapley Wilkinson Pty Ltd [2015] WASAT 29

Waldron and Afra Construction Pty Ltd [2013] WASAT 207

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1. Mr Hafizullah Faqiri and Mrs Fatima Faqiri (owners) engaged A & M Construction Group Proprietary Limited (builder) of which Mr Amjad Umer Menom is the director, to build their double storey brick and tile home (Dwelling) at 9 Jeffrey Street Kewdale.
2. The Home Building Works Contract was signed on 7 September 2018 for a total sum of $540,000 (Contract).[1]
3. The building work commenced on 20 October 2018 and was completed (aside from the matters the subject of this dispute) on 11 December 2019.
4. It is not in dispute that the owners supplied the designs and plans for the Dwelling.
5. The owners lodged three building service complaints with the Building Commissioner comprising 84 items.

CC 1233 of 2020 (BC 2020 - 670) - the first proceeding

6. On 16 May 2020 the owners lodged a building service complaint (Complaint 1) under  s 5(1)  of the  Building Services (Complaint Resolution and Administration) Act 2011  (WA) (Act). Complaint 1 relates to 77 items affecting the whole dwelling ranging from cracks through the cornices to issues with the roof.
7. Given that the proposed remedial work is likely to exceed $100,000 the Building Commissioner referred the Complaint 1 to the Tribunal (pursuant to  bsraaa2011583 /s11.html" class="autolink_findacts">s 11(1)(d) of the Act).

CC 1572 of 2020 (BC 2020 - 1958) - the second proceeding

8. On 11 October 2020, the owners lodged a building service complaint (Complaint 2) under  s 5(1)  of the Act. Complaint 2 relates to four items being the slab at the backyard fence, a water closet (WC), the kitchen bench being the incorrect height in the alfresco area outdoors, and a pet wash bath not being connected to plumbing.
9. The Building Commissioner referred Complaint 2 to the Tribunal (pursuant to  s 11(1)(d)  of the Act) as an associated matter was currently being heard by the Tribunal, and because it would assist Complaint 2 to have it heard concurrently with the associated matter.

CC 173 of 2022 (BC 2022 - 176) - the third proceeding

10. Subsequently, on 16 January 2022, and after the above two proceedings had been part heard, the owners lodged a building service complaint (Complaint 3) under  s 5  (1) of the Act. Complaint 3 relates to three items of complaint concerning the ceiling in the kitchen, garage, study and the soffit lining around the outside of the house (Item 1), unsatisfactory brickworks to the zero locked garage wall (Item 2), upper floor ceiling water staining in eaves, around balcony, on top of the staircase, and in the cedar wood lining in the balcony (Item 3).
11. The Building Commissioner referred Complaint 3 to the Tribunal (pursuant to  s 11(1)(d)  of the Act).
12. The Tribunal made orders that the three proceedings are to remain as separate proceedings but be heard and determined together and that evidence in one proceeding is to be evidence in the other proceeding.

The issues for determination

13. The issues to be determined are:
    1. Were the building works (items of complaint) carried out by the builder in a manner that is not proper and proficient or is faulty or unsatisfactory?
    2. If the answer to 1) is in the affirmative, what is the appropriate form of the building remedy order (BRO) (if any) in respect of the complaint items?
    3. If any of the building works were carried out in a manner that is not proper and proficient or is faulty or unsatisfactory are the owners entitled to any compensation?

Statutory framework

14.  Section 5(1)  of the Act relevantly provides that a person may make a complaint to the Building 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 in  s 3  of the Act as a 'building service complaint'.
15. A 'regulated building service' is defined in  s 3  of the Act to be a building service carried out by a registered building service provider. Relevantly a 'building service' includes 'building work' as defined in s 3 of the Building Act 2011 (WA) being the construction, assembly or placement of a building or an incidental structure.
16. Having accepted a regulated building service complaint (s 7(1) of the Act), the Building Commissioner is required to cause an investigation to be carried out and, after having regard to any report given under s 10 of the Act, may refer the complaint to the Tribunal for it to deal with under s 38 of the Act (s 3, s 9(1) and s 11(1) of the Act).
17. Where a building service complaint is referred to the Tribunal by the Building Commissioner under s 11(d) of the Act, s 38(1)(a) of the Act enables the Tribunal to make a BRO where it is satisfied that the regulated building service is carried out in a manner that is not proper and proficient or is faulty or unsatisfactory. The Tribunal may otherwise decline to make a BRO under s 38(1)(b) of the Act.
18. The standard of 'proper and proficient' is higher standard of care than 'proper and workmanlike manner' or the reasonable care and skill of a tradesman or contractor.[2]
19. The building contract may be relevant as to what is proper and proficient as it 'defines what the builder was required to do, which informs the issue of workmanship'.[3]
20. The phrase 'not been carried out in a proper and proficient manner or is faulty or unsatisfactory' is a broad expression apt to cover a wide range of deficiencies in the construction of a building which can be taken into account.[4]
21. A mere departure by a builder from its contractual obligations is insufficient to establish the work was not carried out in a proper and proficient manner or was faulty or unsatisfactory.[5]
22. Under s 36(1) of the Act, a BRO made by the Tribunal may require a person who carried out a regulated building service to do one or more of the following:
    1. remedy the building service as specified in the BRO;
    2. pay to an aggrieved person such costs of remedying the building service as the Tribunal considers reasonable and specifies in the BRO; and/or
    100. pay an aggrieved person a sum of money specified in the BRO 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.
23. A BRO may require that the order be complied with within a timeframe specified in the BRO: s 36(2) of the Act.

Procedural history and evidence

24. The hearing of the first two proceedings commenced on 15 December 2021 for two days. Both parties were represented on these days of the hearing.
25. When the hearing resumed on 17 June 2022 the owners were unrepresented, their solicitors having ceased to act for them on 24 January 2022.
26. Further, when the hearing of the first two proceedings resumed on 17 June 2022, the hearing of the third proceeding commenced.
27. The documentary evidence in respect of the three proceedings comprises:
    • the hearing book (HB) for the first two proceedings comprising 619 pages (excepting pages 417-464 which comprise the site inspection report of the Building and Energy Inspector (BEI) dated 27 August 2020);[6]
    • a supplementary short summary of evidence - Mrs Faqiri dated 7 December 2021;[7]
    • a short summary of evidence - Mr Memon dated 7 December 2021;[8]
    • building permit dated 31 October 2018 with appendices;[9]
    • owners' (applicants') amended complaint schedule;[10]
    • pages 417-463 of the HB for the first two proceedings being the site inspection report of the BEI dated 27 August 2020;[11]
    • screenshots of texts between Mrs Faqiri and the builder and screenshots of photographs;[12]
    • photographs taken on 30 June 2021 by the owners;[13]
    • email dated 19 February 2021 from the builder with attached complaint schedule of items it agreed to rectify;[14]
    • email from Armenti Form and Space to the builder dated 16 February 2019;[15]
    • email dated 16 December 2021 from the builder attaching two quotes;[16]
    • HB for all three proceedings comprising 655 pages excepting pages 106-120;[17]
    • plans dated 23 July 2018 (nine pages);[18]
    • site inspection report - BEI dated 27 August 2020;[19] and
    • resume of Mr Bradley Porteous.[20]
28. Oral evidence in respect of the three proceedings was as follows:
    1. the owners gave evidence themselves and called expert witnesses, Mr Whittle of Intune Consulting[21], Mr Just, manager at Structerre consulting engineers[22] and Mr Porteous (previously the BEI at the Building and Energy Commission and the author of the site inspection report) [23] whose evidence it was submitted was a central plank of their case; and
    2. evidence on behalf of the builder was given by Mr Memon and expert witness Mr Machell, chartered building professional[24].
29. Concurrent expert evidence was given at the outset of the first day of the hearing by Mr Whittle (on behalf of the owners) and Mr Machell (on behalf of the builder) in respect of complaints relating to the roof.
30. Towards the conclusion of the hearing on the second day counsel for the owners made an application to, amongst other things, lead further expert evidence from Mr Whittle in relation to the upper floor roof.[25] It was envisaged that Mr Whittle would conduct a further inspection of the roof and produce a further report. That application was opposed by counsel for the builder. We declined to grant leave to the owners to lead this further expert evidence.[26]
31. For completeness we note that on 17 February 2022 there was a conferral of the parties' costings experts. In brief the experts recommended that the Tribunal make findings as to the scope of works, prior to them assessing costs.

The Tribunal's consideration

32. It is not in dispute, and we accept, that the builder carried out a regulated building service which is the subject of the items of complaint.
33. We now turn to consider the issues to be determined.

Issue 1: Were the building works (items of complaint) carried out by the builder in a manner that is not proper or proficient or is faulty or unsatisfactory?

34. In respect of Complaint 1 and Complaint 2 the parties prepared a complaint schedule comprising 73 items.[27] All items to which we refer are items numbered in accordance with the owners' amended complaint schedule (complaint schedule). The complaint schedule sets out the corresponding numbers in the BEI's report (which are different).
35. The owners withdrew 11 items[28] in the complaint schedule.
36. The builder admitted liability in relation to 28 of the items[29]. In respect of the admitted items only the cost of remedying the items is in dispute as the builder does not take issue with what the BEI says in his site inspection report in relation to those items and the scope of the rectification works set out in that report.[30]
37. The builder disputes liability and quantum in relation to the balance of the items (that is items 1, 8, 10, 14, 16, 18, 21, 23, 25, 28, 29, 30, 38, 42, 43, 44, 45, 48, 51, 55, 61, 64, 68, 69, 71, and 73).
38. In respect of item 51, the builder admits liability in relation to the lower floor roof. Only the upper floor roof remains in dispute.
39. In respect of Complaint 3 there are three items of complaint.
40. Item 1 is disputed.
41. Item 2 is admitted, and the scope of the works identified in Mr Whittle's report is accepted by the builder.
42. Item 3 relates to upper floor ceiling water staining in the eaves, around the balcony, on top of the staircase, as well as the cedarwood lining in the balcony.
43. In support of this item the owners rely on the photos supplied in conjunction with the previous reports and in particular Mr Whittle's report dated 20 October 2021. They also rely on a report provided by Mr Whittle following an inspection on 11 February 2022 of the upper floor roof.
44. The owners are seeking that the builder fix the upper floor roof and the staining as a result of water ingress. The builder denies the complaint item noting that the owners were refused leave to adduce any further evidence in relation to item 51 (all roof leaks) and that this complaint item is simply an attempt to circumvent this order.
45. At the commencement of the hearing on 17 June 2022 counsel for the builder made an application to have Item 3 dismissed.
46. We granted his application and struck out/dismissed Item 3 as it relates to item 51 and is an attempt to circumvent the ruling we made, at the completion of the part heard hearing on 16 December 2021, to refuse to grant the owners leave to file further expert evidence.[31]

CC 1233 of 2020 and CC 1572 of 2020 - items of complaint

47. We now turn to consider each of the items of complaint in Complaint 1 and Complaint 2 in numerical order.

Item 1 - wardrobe recess in bedroom

48. It is not in dispute that the wardrobe recess in bedroom three, in order to comply with the plans, ought to have been built with a small nib wall. It is not in dispute that it has been built without a small nib wall.
49. The builder contends that there was an agreement to settle the dispute, which the owners do not now want to honour, which was that an Ikea wardrobe be installed at his cost. The builder says that when the owners could not find an Ikea wardrobe to fit, they instructed him to go ahead and install what is there now, which is two sliding doors, a shelf and a rail.[32]
50. The owners deny that they instructed the builder to install what is there now. They contend that there was no variation of the Contract.

Variations to the Contract

51. Clause 16 of the Contract provides that:

(a) the contract may be varied at the owners request with the builder's consent. The builder's consent must not be unreasonably withheld.
(b) the builder may decline to execute any variation required by the owner unless the owner first:

(i) gives written notice of the requirements of the variation; and

(ii) in response to the builder's written notice requiring evidence to the builder's satisfaction of capacity to pay for the variation, gives that evidence.

(c) If the builder agrees to undertake any variation, then the details:

(i) must be in writing;

(A) setting out the cost and all the terms of the variation;

(B) showing the date of the variation;

(ii) must be signed by the builder and the owner or their respective agents; and

(iii) the owner or owners agent must be given a copy of the signed variation;

(A) as soon as reasonably practicable after it has been signed by both parties; and

(B) before the work to which the variation relates is commenced.

52. On the basis of the evidence before us we find that there was no written variation of the Contract signed by the parties in accordance with clause 16.
53. We find that in building the wardrobe recess in bedroom three without a small nib wall the builder has carried out a regulated building service in a manner that is not proper or proficient or is faulty or unsatisfactory.
54. We concur with the scope of the remedial action proposed by the BEI in his report, that the wardrobe robe recess in bedroom three is to be remedied so that it complies with the plans in a proper and proficient manner, protecting all adjacent surfaces.

Item 8 - sink in alfresco

55. The owners complain that the sink installed in the alfresco area has a left-handed drainer rather than a right-handed drainer in accordance with the approved plans and hardware list in the signed Contract. They rely on the quote from Spectra Selection Centre (Spectra) dated 28 May 2018 which provides for a right-handed drainer.[33]
56. It is not in dispute that the sink that was installed has a left-handed drainer.[34]
57. We accept Mr Whittle's evidence that this is contrary to the plans and the signed Contract (listing the hardware) which provides for a right­handed drainer.[35]
58. The builder says the owners chose a left-handed drainer from Spectra and this is confirmed by an email from Spectra to the builder dated 30 November 2021.[36] Mrs Faqiri refutes this.
59. Mr and Mrs Faqiri say that they did not sign a variation for a sink with a left-handed drainer.
60. On the basis of the evidence before us we find that there was no written variation of the Contract signed by both parties in accordance with clause 16.
61. We find, that in installing a left-handed drainer in the alfresco, the builder carried out a regulated building service in a manner that is not proper or proficient or is faulty or unsatisfactory.
62. We concur with the scope of the remedial action proposed by the BEI in his report, that the existing alfresco sink be removed and replaced with a new sink in accordance with the Contract/Spectra quotation dated 28 May 2018, and that the work is to be done in a proper and proficient manner protecting all adjacent surfaces.

Item 10 - left-hand pier of the garage

63. The owners claim, and it is not in dispute, that the left-hand pier of the garage is wider than the pier on the right-hand side of the garage, and the photographic evidence confirms this.
64. We accept Mr Whittle's evidence that the right-hand pier is 520 millimetres wide, and the left-hand pier is 630 millimetres wide, being a difference of 110 millimetres.
65. The owners are seeking to have the left-hand pier remedied to be the same width as the right-hand pier, in accordance with the ground floor plans.
66. The builder contends that he built the left-hand pier in accordance with the elevation plans, which show the piers of differing widths.

The plans

67. We find that there is a discrepancy between the ground floor plans and the elevation plans.
68. We find that the ground floor plans have dimensions and show the piers of the same width.
69. We find that the elevation plans do not have dimensions and show the piers of differing widths, the left-hand pier being wider than the right­hand pier.
70. Mr Whittle gave evidence, which we accept, that it is common practice to build off the floor plans not the elevation plans, and that a dimension drawing is used in preference to a drawing without dimensions.[37]
71. In respect of any discrepancies in drawings the conditions of Contract contain the following relevant provisions:[38]
    • Paragraph 3(a) of the conditions of Contract provides that if the builder finds any discrepancy or ambiguity in the drawings or between the drawings in the specification, the builder must immediately refer the matter to the owner who must direct the builder in writing what is to be done. If the owner fails to direct the builder within five working days of the request for directions, the builder must determine what is to be done.
    • Paragraph 3(b) of the conditions of Contract requires that where the builder determines what is to be done, the builder must advise the owner in writing of the course adopted.
    • Paragraph 3(c) of the conditions of Contract provides that if there is a difference between scaled dimensions and figures on the drawings, the figures prevail. Drawings to a larger scale take precedence over those to a smaller scale.
72. The builder gave evidence that on discovering the discrepancy in the drawings prior to constructing the pier he met with Mr Faqiri on site to discuss the discrepancy and that Mr Faqiri agreed that it be constructed in accordance with the elevation plans. Mr Faqiri denies that he agreed with the builder to build the pier the way it is constructed now.
73. We accept that the builder discussed the discrepancy with Mr Faqiri. However, none of the next steps required to be undertaken in accordance with the conditions of Contract were taken by either of the parties to resolve the discrepancy. The builder did not, upon the owners' failure to direct him in writing what is to be done within five working days of the request for directions, determine what is to be done and advise the owner in writing of the course adopted.
74. Clause 3(c) of the Contract, which is consistent with Mr Whittle's evidence regarding common practice, provides that the ground floor drawings which show dimensions prevail over an elevation drawing which has no dimensions on it.
75. We find that the left-hand pier ought to be the same width as the right­hand pier, in accordance with the ground floor plans.
76. We find that in failing to build the left-hand pier the same width as the right-hand pier the builder has carried out a regulated building service in a manner that is not proper or proficient or is faulty or unsatisfactory.
77. In respect of the appropriate remedy the owners are seeking to have the left-hand pier remedied to be the same width as the right-hand pier, in accordance with the ground floor plans.
78. The builder submits that it would be unreasonable to order him to pull down half the garage to rectify the size of the left-hand side brick pier by a nominal amount of millimetres. The builder submits that the appropriate remedy is a nominal sum for loss of amenity.
79. In considering the parties' respective submissions concerning the appropriate remedy, we have regard to the principle that any remedial work must be both 'necessary' and 'reasonable'. What is 'necessary' and 'reasonable' in any particular case is a question of fact.[39]
80. In our view the left-hand pier was constructed substantially in accordance with the Contract, being only 110 millimetres wider. We accept the builder's submission that it would be unreasonable to insist on strict compliance with the Contract and carry out the rectification sought by the owners. Further in our view the cost of carrying out the rectification sought by the owners is out of proportion to the benefit to be obtained.
81. In our view there has been a loss of amenity as the lack of symmetry makes the front elevation visually less attractive and the owners ought to be compensated for this loss of amenity.
82. We do not have any submissions from the parties as to what may be considered a nominal sum. In our view, given that the total Contract price for the construction of this house was $540,000 we consider that a nominal sum for the loss of amenity is $1,000.

Conclusion

83. We consider that the builder ought to pay the owners a nominal sum of $1,000 in compensation for carrying out a regulated building service in a manner that is not proper or proficient or is faulty or unsatisfactory.

Item 14 - upper floor ensuite shower mixer tap handles

84. The owners claim that the upper floor ensuite shower mixer tap handles are not the selected shower handles as described in a Spectra quote/invoice dated 27 November 2018 (which quotation is not in evidence).
85. We note here that it was an earlier Spectra quotation dated 28 May 2018 that formed part of the Contract.
86. The builder gave evidence, which we accept, that the process of changing selections was 'a fairly loose arrangement' and that there was no record of any changes, only a record of the original selections.[40]
87. On the evidence before us we are not satisfied that the upper floor ensuite shower mixer tap handles are not the selected shower handles as described in the Spectra quote/invoice dated 27 November 2018.
88. Further, on the evidence before us we find that there was no written variation of the Contract signed by the parties in accordance with clause 16.
89. We are not satisfied that the builder carried out a regulated building service in a manner that is not proper or proficient or is faulty or unsatisfactory. Accordingly, we dismiss this item.

Item 16 - entrance texture - overlapping paint job

90. Under cross-examination the builder admitted that this item was unsatisfactory.
91. The only dispute is in respect of the appropriate remedial action.
92. The builder contends that rectification only requires paint touch­ups. He disputes the remedial action proposed by the owners which is that the whole of the external plastering needs to be redone.[41]
93. In his oral evidence Mr Porteous agreed that the unsatisfactory work could be remedied by paint touch-ups. [42]
94. On the basis of the evidence, we find that the builder has carried out a regulated building service in a manner that is not proper or proficient or is faulty or unsatisfactory.
95. On the evidence of Mr Porteous, we find that the defective work can be remedied by touching-up with paint.

Item 45 - entrance external wall texture - overlapping paint job

96. This item is related to item 16 and so we have dealt with it out of sequence with the other items.
97. Again, the owners seek to have both the texturing and the overlapping paint remedied.
98. On the basis of the evidence, we find that the builder has carried out a regulated building service in a manner that is not proper or proficient or is faulty or unsatisfactory.
99. On the evidence of Mr Porteous, we find that the defective work can be remedied by touching-up with paint.
100. We return to deal with the remaining items in sequence.

Item 18 - kerb to council crossover

101. The owners complain that the kerb to council crossover is unfinished, chipped, and cracked in multiple locations.
102. The builder says this is not part of the Contract. The builder says that the Contract only requires him to install the crossover not reinstate damaged or non-existent curb of approximately 3 metres in length.
103. Item 31 in the scope of works (comprising the Contract) simply states 'crossover to council requirement (exposed concrete)'.
104. The BEI observed that there are missing sections of concrete kerbing next to the driveway crossover, and that the kerbing is chipped and cracked in a number of locations. In his opinion it is defective.
105. The BEI recommends that the builder remedy the concrete kerbing to the front of the property so that it complies with the local council's requirement of item 'v' of the building permit BA4 No 580/2018 which states that:

in the event that access ways, parking areas and hard stand is not satisfactorily maintained, the City's Director Technical Services may require by notice in writing, that the area be brought up to satisfactory standard within a specified period of time and notice shall be complied with within that period. Without limitation, the notice may require that lines marking car bays be repainted, pot holes be repaired, damaged kerbs be replaced and degraded access be resurfaced generally in accordance with the City's engineering requirements and design guidelines.

106. We accept the BEI's opinion that due to the crossover being cracked, displaced, missing and chipped it is unsatisfactory and requires remedying to comply with these provisions in the building permit. He required all work to be done to a proper and proficient manner protecting all adjacent surfaces.
107. We find that the builder has carried out a regulated building service in a manner that is not proper or proficient or is faulty or unsatisfactory.
108. We concur with the scope of the remedial action proposed by the BEI in his report, that the crossover be remedied to comply with the provisions in the building permit and that all work be done to a proper and proficient manner protecting all adjacent surfaces.

Item 21 - incomplete carpet edges

109. It is not in dispute that the carpet edges have been left unfinished. Nor is it in dispute that it was the builder's job to lay the carpet and that the owners undertook the tiling themselves after handover.
110. We accept the builder's evidence in relation to building practices that it is the last trade that finishes the job.
111. We find that in the circumstances where the owners undertook the tiling after handover it was not the builder's responsibility to return to trim the carpet edges.
112. Based on the evidence before us we are not satisfied that the builder carried out a regulated building service in a manner that is not proper or proficient or is faulty or unsatisfactory. Accordingly, we dismiss this item.

Item 23 - brick fence/screen wall on southern boundary

113. There are three separate items of complaint relating to the brick fence/wall on the southern boundary, each of which deal with a different aspect of the wall, namely the height of the wall (item 23), the height of the concrete footings (item 55) and the insufficient/faulty slab (item 70).
114. For convenience we will deal with each of these items relating to the wall in turn, and out of sequence with items in respect of other works.
115. In respect of item 23 the owners claim that the wall was not built in accordance with the plans approved by the Council. They contend that according to the plans the external height of the wall ought to be 1.8 metres. They are seeking that the height be remedied. They are seeking $35,758.50 in costs to remedy the wall.[43]
116. We turn firstly to consider the height of the wall as constructed, which is not in dispute.
117. On the basis of the photographic evidence and the report of Mr Just we find that the ground on which the wall is built is on a slope, being higher on the right-hand side closest to Yomba Street, than the left. Further, we find that the levels either side of the wall are different with the external soil level being higher than the internal soil level.[44] In particular we accept Mr Just's observations that the wall retains up to 820 millimetres on the external side, leaving the external height of the wall at 1,200 millimetres.[45]
118. What is in dispute is whether the height of the wall is in accordance with the approved plans.
119. There are a number of problems with the approved plans, which were supplied by the owners, and which we find to be deficient. The problems are as follows.[46]
120. Firstly, the elevations on the plans[47] show the wall constructed as if the ground was level which is incorrect. As we have stated, the wall was built on ground that slopes upwards on the right-hand side towards Yomba Street. We accept Mr Just's evidence that in this respect the plans are wrong.[48]
121. Secondly, the plans do not provide for a retaining wall with the consequential difference in height on either side of the wall. Yet the built wall retains 820 millimetres on the external side, leaving the external height of the wall at 1,200 millimetres.
122. Thirdly, whilst the plans provide for the height of the wall to be 1,800 millimetres, the issue is where the height is to be measured from. Mr Just conceded that the plans do not refer to the height of the wall being measured from the ground level.[49] Further Mr Just conceded that everything on the elevation is referenced to the floor slab level, and that if the 1,800 millimetres is measured from the floor slab level then the height of the built wall complies with the plans.[50] Mr Porteous also conceded, in cross-examination, that the height of the wall would be measured from the floor slab.[51]
123. Fourthly, the finished floor level of the slab on the site plan attached to the building permit for the house is 10.3.[52] In comparison the site plans for the wall, which was the subject of a later building permit[53] show that the finished floor level of the slab for the house is higher, at 10.5.[54]
124. On the basis of Mr Just's and Mr Porteous' evidence, and the site plans the subject of the building permit for the wall we find that the height of the wall is to be measured from the finished floor level of the slab (10.5).

Conclusion

125. For these reasons we do not accept the owners' contention that according to the plans the external height of the wall ought be 1.8 metres.
126. We find that the height of the built wall is compliant with the approved plans.
127. Based on the evidence before us we are not satisfied that the builder carried out a regulated building service in a manner that is not proper or proficient or is faulty or unsatisfactory. Accordingly, we dismiss this item.

Item 55 - brick fence/screen wall on southern boundary

128. The owners complain that the concrete footings to the wall are approximately 100 millimetres higher than the nearest concrete paving. Further they complain that the wall plaster /texture coating/painting has not been finished right down to the footings. These observations, which we accept, are in the BEI's report.
129. The owners want the concrete footings to the wall to be remedied so that they are installed at a height that will allow for the fitting of paving. Further they want the plastering/texture coating/painting remedied so that it is finished right down to the top of the concrete footings.
130. As previously stated, there are a number of problems with the approved plans, including that the elevations on the plans show the wall constructed as if the ground was level which is incorrect as we have stated. The wall was built on ground that slopes upwards on the right­hand side towards Yomba Street.
131. On the basis of the site plans we accept that the spot levels of the soil in the backyard around the wall are higher[55] than the house slab level, indicating soil build up around the house. We accept Mr Just's evidence that the natural grade of the soil, as depicted on the site plans would have covered the footings.[56]
132. In contrast the photographic evidence, which we accept, shows that the soil alongside the footings has been dug out and levelled. The builder contends that it was the owners who did this.
133. When it was put to Mr Faqiri in cross-examination that he had dug out and levelled the soil alongside the wall he was evasive and unconvincing.[57] He responded, 'I make it ready for the paving' which he said was 'my job'.[58]
134. We consider it likely that Mr Faqiri, in making the area ready for paving, exposed the footings, creating a height differential between the footings and the paving. Further this would also explain why the wall plastering/texturing/painting does not continue down to the top of the concrete footings, the plastering/texturing/painting having been done prior to Mr Faqiri making the ground ready for paving.
135. On the evidence before us we are not persuaded that the concrete footings, or the plastering/texture coating/painting is defective as alleged.
136. For these reasons we do not accept that the wall is defective as alleged by the owners.
137. Based on the evidence before us we are not satisfied that the builder carried out a regulated building service in a manner that is not proper or proficient or is faulty or unsatisfactory. Accordingly, we dismiss this item.

Item 70 - slab - brick fence/wall on southern boundary

138. The owners complain that the slab (or footings) for the wall is insufficient and faulty.
139. The owners refer to their related complaint item 23 and seek a remedy 'fix as per standard'.
140. Whilst this item is inchoate in the complaint schedule, Mr Just, in his evidence, identified other aspects of the footings that in his opinion meant they were not compliant with the plans; in particular, that the pier footings are undersized (520 x 520 x 100 millimetres deep) being less than the minimum dimensions (750 x 750 x 300 millimetres deep), that the footings are on bricks in one location, and over a stump at another location.
141. We accept Mr Just's evidence that the pier footings are undersized, and the footings are on bricks in one location, and over a stump at another location. Mr Just did not know why putting the footings on bricks 'would have ever been done', and that not taking time to 'grub out the tree' was poor workmanship.
142. We accept Mr Just's evidence that in these respects the wall was not constructed in accordance with the plans and that for these reasons the work was faulty and unsatisfactory.
143. Mr Just agreed that the footings could be remediated, and that any remediation would depend on what the council allowed. [59]

Conclusion

144. We conclude that because the pier footings are undersized, the footings are on bricks in one location, and over a stump at another location, the builder carried out a regulated building service in a manner that is not proper or proficient or is faulty or unsatisfactory.
145. We find that the scope of the remedial action requires the dimensions of the pier footings to comply with the plans, and the footings not be located on bricks and tree stumps.
146. We return now to deal with the remaining items in sequence.

Item 25 - upper floor sitting room window

147. The owners complain that in the upper floor sitting room, instead of installing a window the builder has installed a glass panel with gaps around the perimeter. They are seeking to have a framed window installed with no gaps around the perimeter.
148. We accept the evidence of the BEI and Mr Whittle, that the upper floor sitting room has a glass panel with a 25-30 millimetre gap around the perimeter, which accords with the upper floor plan (associated with the building permit).
149. Mrs Faqiri says that the designer, Armenti, changed these plans to provide for a window and that he emailed this changed plan to the builder on 16 February 2019.[60]
150. The builder's evidence is that as of 16 February 2019 the brickwork had been built, and the frames had been delivered on site.
151. On the basis of the evidence before us we find that there was no written variation of the Contract signed by both parties in accordance with clause 16.
152. Based on the evidence before us we are not satisfied that the builder carried out a regulated building service in a manner that is not proper or proficient or is faulty or unsatisfactory. Accordingly, we dismiss this item.

Item 28 - cedar wood ceiling lining in portico and alfresco

153. The owners complain that the cedar wood ceiling lining in the portico and alfresco areas has not been varnished and this is not in dispute.
154. The builder says that varnishing the cedar wood ceiling lining in the alfresco and portico is not in the Contract [61] and we accept this.
155. Further the owners complain that the alfresco cedar wood ceiling lining is water damaged and this is not in dispute. They are seeking to have the cause and effect of the staining remedied (as recommended by Mr Porteous in his report).[62]
156. In so far as the cause of the water damage in the alfresco is concerned this relates to item 51, and liability has been admitted for the lower floor roof including the alfresco roof.
157. In respect of the effect of the water damage the builder concedes that the staining needs to be rectified [63] and that this can be done by sanding out the staining. Mr Whittle agreed under cross-examination that the staining could be remedied by sanding it.[64]
158. We accept Mr Porteous' opinion that both the cause and effect of the water-stained cedar ceiling lining in the alfresco ought be remedied.
159. Further on the basis of the evidence of the builder, Mr Porteous and Mr Whittle we find that the water-stained cedar wood ceiling lining in the alfresco is unsatisfactory and that it can be remedied by sanding.

Conclusion

160. On the basis of the evidence before us we are not satisfied that in not varnishing the portico and alfresco cedar ceiling linings the builder carried out a regulated building service in a manner that is not proper or proficient or is faulty or unsatisfactory.
161. In so far as complaint item 28 relates to the staining to the alfresco ceiling we find that the builder carried out a regulated building service in a manner that is not proper or proficient or is faulty or unsatisfactory.
162. In so far as the cause of the leaking in the alfresco is concerned this relates to item 51, this item is admitted, and as stated above, the builder does not take issue with the remedial action in the BEI report in respect of admitted items.
163. In so far as the remedial action is concerned, we find that the effect of the water staining in the alfresco ought be remedied by sanding the alfresco ceiling.

Item 29 - extra dirt left on site - front yard, front of house

164. The owners complain that the builder left extra dirt on site and that it cost them $500 to have it removed.
165. When the BEI did a site inspection on 31 July 2020, he observed building rubbish on site.
166. The builder disputes that any rubbish on site was the builder's rubbish and further points out that there is no evidence of this cost having been incurred by the owners.
167. We are not persuaded that the building rubbish observed by the BEI during his site inspection on 31 July 2020 was left by the builder in circumstances where the builder completed the building work in December 2019, and the owners have, on their own evidence, been undertaking work on their property. Further there is no evidence of the cost of removal of the building rubbish.
168. Based on the evidence before us we are not satisfied that the builder carried out a regulated building service in a manner that is not proper or proficient or is faulty or unsatisfactory. Accordingly, we dismiss this item.

Item 30 - portico downpipe

169. It is not in dispute that the portico downpipe on the left-hand side of the main entrance/portico is inside the pier and protrudes approximately 3 metres from the ground.
170. The owners complain that the downpipe should have stayed inside the pier and protruded out at ground level rather than approximately 3 metres from the ground.[65]
171. The floorplans show the downpipe on the face of the pier (rather than inside the pier) and we so find. Further the general notes on the plans[66] provide that 'position of downpipes approximate only and to builder's discretion'.
172. Whilst conceding that the plans show the downpipe on the face of the pier in Mr Whittle's opinion the downpipe should have stayed inside the pier and made its way down to the bottom of the pier rather than stopping one storey up.[67]
173. Mr Porteous's evidence is that the portico downpipe, in exiting at the first floor level rather than being brought to the ground, is not compliant with Australian Standards.[68]
174. In our view based on the evidence of Mr Porteous and Mr Whittle we find that the downpipe is defective in that it stopped one storey up, rather than continuing to ground level.
175. On the basis of the evidence before us we find that the builder has carried out a regulated building service in a manner that is not proper or proficient or is faulty or unsatisfactory.
176. The works ought to be remedied by continuing the downpipe to the ground. Given that the floorplans provide for downpipes on the face of the pier rather than inside the pier we are of the view that the appropriate rectification is for the downpipe to continue to the ground, on the face of the pier.

Item 38 - accessories to alfresco sink

177. The owners complain that they were not supplied with the accessories for the alfresco sink, including a cutting board and a cover plate for one of the sinks.
178. The builder says that the accessories were supplied.
179. Given the conflicting evidence regarding the supply of these items we are not persuaded that these items have not been supplied as alleged.
180. Based on the evidence before us we are not satisfied that the builder carried out a regulated building service in a manner that is not proper or proficient or is faulty or unsatisfactory. Accordingly, we dismiss this item.

Item 42 - water tap outside the study not installed

181. The owners complain, and it is not in dispute, that a tap has not been installed outside the study room.
182. Mr Porteous's conclusion that this is unsatisfactory, is based on an earlier version of the ground floor plan which was superseded by the ground floor plan the subject of the building permit dated 1 August 2018, which does not show a tap outside the study.
183. Whilst the electrical floor plans the subject of the building permit show a tap outside the study, we accept the builder's evidence that electrical plans are not followed when installing plumbing.[69]
184. On the basis of the ground floor plan dated 1 August 2018 we find there is no tap on the ground floor plan outside the study, and therefore its absence is in accordance with those plans and not unsatisfactory.[70]
185. Based on the evidence before us we are not satisfied that the builder carried out a regulated building service in a manner that is not proper or proficient or is faulty or unsatisfactory. Accordingly, we dismiss this item.

Item 43 - main entrance door missing door handle

186. The owners complain that the main entrance door is missing a door handle.
187. On the basis of the owners' evidence, which was confirmed by the BEI, we accept that the main entrance door is missing a handle.
188. The parties agree that the builder's contractor attended to install the handle, and that the owners did not allow him to carry out the installation. Mrs Faqiri says this was because the door is faulty.
189. The parties have given contradictory evidence as to who has possession of the handle. The builder says the owners have it, whereas the owners say the contractor took the handle away with him.
190. We accept the builder's unchallenged evidence that the handle was picked up by the owners from the supplier directly and consider that in the circumstances it is unlikely that the contractor took it.
191. Based on the evidence before us we are not satisfied that the builder carried out a regulated building service in a manner that is not proper or proficient or is faulty or unsatisfactory. Accordingly, we dismiss this item.

Item 44 - no perimeter lighting to the bulkheads

192. The owners complain that there is no perimeter lighting to the bulkheads in bedrooms one and two, the theatre room, the entry void, the sitting room, dining and living area in accordance with the Contract.
193. The electrical plan indicates perimeter lighting to all of these areas of the dwelling.[71]
194. The builder contends that perimeter lighting to the bulkheads in these rooms is not in the builder's contracted scope of works. The builder contends that item 21 in the scope of works in respect of lighting provides only that two light fittings be supplied, and installed per room and we accept this evidence.[72]
195. We accept the builder's evidence that the plans allow the owners to install perimeter lighting after handover and that the electrician made provision for that by providing a General Power Outlet and cabling to enable the owners to install perimeter lighting after handover.[73]
196. On the basis of the scope of works we find that only two light fittings per room were to be fitted and installed as part of the Contract.
197. Based on the evidence before us we are not satisfied that the builder carried out a regulated building service in a manner that is not proper or proficient or is faulty or unsatisfactory. Accordingly, we dismiss this item.

Item 48 - internal door frames dented and mis-manufactured

198. The owners complain that most of the internal door frames are mis­manufactured and have dented frames and that the builder painted over them.
199. The owners are seeking that the remedial work proposed by the BEI be undertaken, that is that the door frames be repaired and repainted.
200. The BEI and Mr Whittle both observed dented doorframes and we accept their evidence.
201. In the BEI's opinion it was unsatisfactory that the dents were left in some of the internal door frames and painted over.
202. The builder says that the owners' painter did not properly prepare the frames and that painting was not within the builder's scope of works.
203. On the basis of the evidence before us we find that the paint work was not within the builder's scope of work identified in the Contract[74] and that the owners' painter did not properly prepare the frames for painting.
204. Based on the evidence before us we are not satisfied that the builder carried out a regulated building service in a manner that is not proper or proficient or is faulty or unsatisfactory. Accordingly, we dismiss this item.

Item 51 - all roof

205. The owners contend, and it is not in dispute, that the roof leaks. There is an upper floor roof, and a lower floor roof.
206. The builder admits liability in relation to the lower floor roof and only contests liability in relation to the upper floor roof.
207. The builder admits that the ground floor roof needs rectification and that it needs to be sarked, which entails removing all of the tiles, installing sarking, and reinstalling the tiling and making good the tiling.[75]
208. We note here that sarking is a waterproof membrane on the underside of the roof tiles designed to catch small amounts of water and direct it to the gutter. [76]
209. In respect of the upper floor roof the owners contend that all of the roof leaks [77] and requires sarking to be installed.
210. The builder contends that no sarking is required to the upper floor roof given the roof pitch (greater than 20°) and the length of the rafters.

The lay evidence regarding the roof

211. We have endeavoured to distil from Mrs Faqiri's evidence regarding the roof, only her evidence in relation to the upper floor roof, given that liability for the lower floor roof has been admitted.
212. The upper floor comprises three bedrooms, a sitting room with an adjacent balcony, kitchenette, and a void over the entry.[78]
213. Mrs Faqiri gave evidence of water ingress from February 2020, and her communications with the builder in February and July 2020 confirm her observations of a leak in the upper floor roof near the manhole.[79]
214. The builder concedes that there is a leak to the upper floor roof where the manhole is located.[80]
215. Mrs Faqiri gave evidence that the Department of Fire and Emergency Services attended on 30 June 2021 and put tarpaulins on the roof.[81] Mrs Faqiri did not say whether the tarpaulins were covering the upper floor roof however we note that when Mr Whittle inspected the roof in October 2021, he observed that tarpaulins were covering the majority of the lower floor roof. There is no mention in his evidence of tarpaulins covering the upper floor roof.

The expert evidence

216. The evidence of Mr Porteous, Mr Whittle and Mr Machell is relevant to this item.

Mr Porteous' evidence

217. Mr Porteous, in his capacity as the BEI, provided a report dated 27 August 2020 following a site inspection on 31 July 2020.
218. Mr Porteous gave evidence that when he conducted a site inspection it was raining. He did not go up on the upper floor roof although he looked inside the roof space of the upper floor roof and the only leak he observed was one leak between two roof tiles above the upper floor manhole in the hallway.
219. Mr Porteous gave evidence that all of the other comments in his report related to the lower floor roof.
220. At the time of his inspection, he did not see anything else that needed to be rectified on the upper floor roof.[82] He resiled from the comments in his report that the entire roof needed remedying. He agreed that the remedial action required this one instance of leaking to be rectified. [83]
221. Mr Porteous gave evidence that the upper floor roof did not require sarking given the pitch of the roof.[84]

Mr Whittle's evidence

222. At the request of the owners Mr Whittle of Intune Consulting prepared a report dated 20 October 2021 following a site inspection that same day.
223. Mr Whittle observed water damage to only one location upstairs[85] being a small area, near the manhole at the apex of the roof.
224. Mr Whittle agreed that the National Construction Code does not require sarking for a roof with a pitch greater than 20 degrees but that it was his preference, and sound practice to sark any tiled roof. [86]

Mr Machell's evidence

225. At the request of the builder Mr Machell provided a report dated 24 November 2021[87] based on a desktop review of the architectural plans and the reports of Mr Whittle and the BEI.
226. Mr Machell was asked for his opinion as to whether the upper floor roof is required to have sarking installed underneath the roof tiles.
227. The National Construction Code at 3.1.5 provides that the maximum rafter length that does not require sarking is 6 metres with a roof pitch of greater than 22°.
228. For this reason, in Mr Machell's opinion there is no need for sarking because the longest rafters on the plan are less than 6 metres and the roof pitch is 25.35°.
229. Further Mr Machell gave evidence that he would not install sarking where it is not required. He disagreed with Mr Whittle, about it being best practice to install sarking even when not required.[88]

Consideration of the evidence

Sarking

230. On the basis of Mr Machell's evidence, we find that the rafters in the upper floor roof are less than 6 metres with a roof pitch at 25.35°.
231. On the basis of the evidence of Mr Machell, Mr Whittle, and Mr Porteous, we find that given the length of the rafters and pitch of the roof the National Construction Code does not require sarking to the upper floor roof.
232. We therefore reject the contention of the owners that the entirety of the upper floor roof requires sarking and is defective.

One leak

233. On the basis of the lay evidence, the photographic evidence, and the evidence of Mr Porteous and Mr Whittle we find that there is only one leak in the upper floor roof, which is a leak between two roof tiles above the upper floor ceiling access panel (manhole) in the hallway. Notably, both Mr Porteous and Mr Whittle record this one instance of leaking, which was observed by Mr Porteous in July 2020 to be the only leak in the upper floor roof, and the evidence of this same leak was observed by Mr Whittle approximately 15 months later when he conducted his inspection on 20 October 2021.
234. On the basis of this evidence, we find that in so far as the upper floor roof has a leak between two roof tiles above the upper floor ceiling access panel the builder carried out a regulated building service in a manner that is not proper or proficient or is faulty or unsatisfactory.
235. We accept Mr Porteous' evidence that the only rectification required to the upper floor roof is to remedy the leak between two roof tiles above the upper floor ceiling access panel.

Item 61 - ensuite WC, study, and internal garage doors are missing buffers

236. The owners are seeking to have the missing door frame buffers replaced.
237. The builder says that the owners' painter removed the buffers while painting.
238. As we have already found painting was not part of the Contract.
239. In the circumstances we consider it likely that the buffers were removed by the owners' painter and not replaced. We do not consider that the absence of the buffers is due to the builder's defective work.
240. Based on the evidence before us we are not satisfied that the builder carried out a regulated building service in a manner that is not proper or proficient or is faulty or unsatisfactory. Accordingly, we dismiss this item.

Item 64 - downpipe wrongly located on the right-hand side of the garage instead of the left-hand side

241. The owners are seeking that the downpipe located on the right-hand side of the garage be relocated to the left-hand side of the garage in accordance with the plans.
242. The builder says that the downpipe was installed in accordance with his discretion, and he refers to the general notes on the plans provided by the owners which state that 'number and position of downpipes approx only and to the builder's discretion'.
243. We find that the plans show the downpipe on the left-hand side of the garage. We agree with the builder that the notes on the plans give the builder discretion in relation to the location of the downpipes, and for this reason we do not consider that the location of the downpipe on the right-hand side of the garage is defective.
244. Based on the evidence before us we are not satisfied that the builder carried out a regulated building service in a manner that is not proper or proficient or is faulty or unsatisfactory. Accordingly, we dismiss this item.

Item 68 – alfresco hotplate

245. The owners complain that the alfresco hotplate is too close to the glass splashback/wall causing burning.
246. The builder says that the position of the hotplate is because the hotplate selected by the owners is too large to have a gap at the rear of it.
247. The BEI in his report referred to Australian Standard 5601.1:2013 Figure 6.3 Required clearances around domestic gas cooking appliances, states in part '(c) Requirement 3 Notes: 3 Consideration is to be given to window treatments and painted surfaces on glass splashbacks when located near cooking appliances'.
248. The BEI observed that there was only a 100 millimetre distance from the closest gas burner to the glass splashback. He noted that the manufacturer of the glass splashback had not been identified.
249. Mr Whittle is of the opinion that the hotplate should be positioned away from the back wall splashback to prevent overheating and to enable cleaning and that it ought to be installed to comply with the relevant Australian Standards.[89] However, he conceded under cross­examination that there is no relevant Australian Standard.
250. Mr Whittle conceded that he had not consulted the manufacturer's installation guide in respect of the appropriate clearances in relation to the hotplate from adjoining walls.[90]
251. On the basis of the evidence of the BEI and Mr Whittle, we are not persuaded that the position of the hotplate is in breach of any Australian Standard or not installed in accordance with manufacturer's guidelines.
252. Based on the evidence before us we are not satisfied that the builder carried out a regulated building service in a manner that is not proper or proficient or is faulty or unsatisfactory. Accordingly, we dismiss this item.

Item 69 - living room double entry doors

253. The owners complain, and we accept, that the double entry doors to the living room are bowed up to 8.0 millimetres, the second opening door face is damaged next to the top mounted flush bolt, and that there are gaps between the doors and the door frames that range from 3 to 8 millimetres. All of this was observed by the BEI.
254. The owners want the double entry doors remedied to comply with Australian Standard 2688:2017 Timber and Composite doors item 4.1.2, item 5.3.3.3, Australian Standard 1909­1984 installation of timber doorsets item 7.1 and item 7.2. Repairs to the doors that require painting is to be in keeping with the manufacturer's recommendations and AS2311.
255. In the complaint schedule the builder has agreed to make this item comply with AS2688:2017.
256. On the basis of the evidence, we find that the builder carried out a regulated building service in a manner that is not proper or proficient or is faulty or unsatisfactory.
257. We find that the living room double entry doors ought be remedied to comply with Australian Standard 2688:2017.

Item 71 - wrong toilet basin

258. The owners complain that the wrong toilet basin was supplied to the toilet next to bedroom three. The owners rely on the Spectra invoice which indicates five toilets of the same kind. They say that one of them, namely the toilet next to bedroom three, is not of the same brand.
259. The builder says that he agreed to supply and install a new toilet, that the supplier contacted the client for replacement and that they refused to provide access. Mrs Faqiri denies refusing access.[91]
260. Based on the evidence before us we find that the builder carried out a regulated building service in a manner that is not proper or proficient or is faulty or unsatisfactory.
261. For this reason, we conclude that this item be remedied by the supply and installation of a toilet basin (in the toilet next to bedroom three) of the same kind as the others specified in the Spectra invoice that forms part of the Contract.

Item 73 - pet wash plumbing

262. The owners claim that the pet wash plumbing has not been connected and that it is blocked.
263. In his report Mr Whittle expressed the view that the pet wash drain was blocked or never installed causing the pet wash area to drain extremely slowly which in his opinion is unsatisfactory.
264. Mrs Faqiri gave evidence that the plumbing has not worked since the beginning.[92]
265. The builder says that the plumbing is not blocked.
266. On the basis of Mrs Faqiri's evidence and Mr Whittle's evidence we accept that the pet wash plumbing is blocked or was never installed.
267. Based on the evidence before us we find that the builder carried out a regulated building service in a manner that is not proper or proficient or is faulty or unsatisfactory.
268. For these reasons the cause of the blockage ought to be remedied.

CC 173 of 2022 – Complaint 3

Item 1 - ceiling in kitchen, garage, study room on ground floor and soffit lining around the outside of the house

269. The owners complain that the ceilings in the kitchen, garage, study room (all ground floor rooms) and soffit lining around the outside of the house are water damaged and stained due to the faulty roof. They are seeking to have the gyprock and insulation replaced as they say that with the tarp over the roof the water has not been drying out and 'mulding will occur' (Tribunal emphasis).
270. The owners rely on Mr Whittle's report[93] and also photographs of stained ceilings in the kitchen, garage, study and the soffit lining around the outside of the house, all taken on or about 25 March 2022. They also rely on photographs taken in or about February 2020 (when they discovered the lower floor leaking roof).

Mr Whittle's report

271. In so far as Mr Whittle's report is relevant to the four areas the subject of this complaint, Mr Whittle commented that ceiling staining extends to almost every room on the ground floor, and the soffit lining around the outside of the house. Photographic evidence of the stained soffit lining was provided with his report.
272. In his report he stated that the extent of the water damage over two years 'would lend itself to mould forming on the opposite side of the sheet in the roof space' and that 'if the ceiling sheets have lost their original shape and structural integrity from the constant exposure to the water ingress they would need replacing'.

The lay evidence

273. Mrs Faqiri agreed that only three of the 16 rooms on the ground floor have stained ceilings.[94]

Consideration

274. We do not accept Mr Whittle's evidence that ceiling staining extends to almost every room on the ground floor because his evidence is inconsistent with Mrs Faqiri's evidence, which we accept, that the staining on the ceilings on the ground floor relate to only three of the 16 rooms on the ground floor, namely the kitchen, study, and garage.
275. Further, we accept Mrs Faqiri's evidence, which is corroborated by Mr Whittle's evidence that there is staining to the soffit lining around the outside of the house.
276. As to whether the ceiling sheets have lost their shape and structural integrity Mr Whittle's evidence is that ceiling sheets would need replacing 'if' they had lost their original shape. His evidence falls short of establishing that the ceiling sheets have in fact lost their structural integrity.
277. As to the existence of mould, his evidence is that the water damage would 'lend itself to mould forming'. His evidence falls short of establishing that there is any mould. Further we note that the owners' complaint is predicated on moulding occurring in the future ('mulding will occur').
278. On the evidence before us we are not satisfied that the ceiling sheets have lost their original shape and structural integrity, nor are we satisfied of the existence of any moulding.
279. It is difficult to discern from the few photographs of the ceilings taken in February 2020 whether the ceilings are stained. On the evidence before us we are unable to make any findings as to the existence of any staining to the ceilings and soffit lining at that time.
280. On the basis of the evidence of Mrs Faqiri and Mr Whittle we are satisfied that as a consequence of the faulty and unsatisfactory lower floor roof there is staining to the ceilings in the kitchen, study, garage and soffit lining around the outside of the house. There is no evidence before us, nor is it contended by the builder, that there is any other cause of the staining.
281. The issue is whether the owners should be compensated for this loss.
282. The builder says that the owners have failed to mitigate their loss including refusing to reasonably allow the builder to attend the house to conduct any necessary remedial works to the roof.[95]
283. We accept that the owners can only be compensated for any loss incurred due to the failure of the builder to carry out the building service in a proper and proficient manner or arising from faulty or unsatisfactory work, and cannot be compensated for loss suffered by them due to their failure to take reasonable steps to reduce or mitigate the extent of the loss being suffered (refer to Hippydayze Pty Ltd and Mener Group Pty Ltd [2019] WASAT 92 (Hippydayze)).
284. We find that the owners have unreasonably denied the builder access to the house to remedy any defects, including the leaking lower floor roof (see [293]-[303] below). Further we find that it was not until June 2021 (approximately 15 months after they first discovered the leaking lower floor roof) that the owners arranged for a tarpaulin to cover the lower floor roof.
285. We find that the owners have failed to mitigate their loss and for this reason, we dismiss this item.

Issue 2: What is the appropriate form of the BRO in respect of the complaint items?

286. The owners have expressed a strong preference for a monetary order, under s 36(1)(b) of the Act, as they say they have lost confidence in the builder's willingness or ability to fix the defects.
287. The builder would prefer that remedial orders be made in respect of any defective work, which he is willing to undertake.

The applicable principles

288. Section 36(1) of the Act confers discretion on the Tribunal as to the form of the BRO.
289. The owners have no right to elect the remedy sought under s 36(1) of the Act but are entitled to express a preference.[96]
290. It follows that the Tribunal cannot fetter its discretion by simply adopting the owners' preference for a monetary order. The owners' preference, and reasons for seeking a monetary order, however, are relevant matters for the Tribunal to consider when determining the type of BRO to make.[97]
291. In 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:[98]

... 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[.]

292. It is common practice to give a 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.[99] 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.[100]

The parties' positions

293. In summary, in support of their preference for a monetary order, the owners say that they were willing to allow the builder back to remedy the defective work and that the builder returned and fixed some of the items of defective work but not others. Further they say that the builder has had adequate opportunity to remedy the defects, having promised on numerous occasions since January 2020 to return and remedy various items of defective work.
294. As we have said, the builder would prefer that remedial orders be made in respect of any defective work, and he is willing to undertake such work. The builder says that he has been willing to remedy the defects, but the owners restricted access to their property to weekends and after 3.30 pm on weekdays. Further he says that since the BEI issued his assessment of the items of complaint in September 2020 the owners have refused to let him undertake any repairs in relation to the items of complaint. The builder says this has exacerbated the damage claimed, in particular the water damage to the ceilings and internal finishes has increased with no repairs allowed to the lower floor roof for over a year.[101]

Findings

295. We make the following findings in relation to the purported relationship breakdown between the parties.
     1. The owners commissioned a report from master building inspectors who inspected the property in mid­December 2019.[102] The report identified numerous defects and the report was forwarded to the builder.
     2. The builder attended at the property in late January 2020 and agreed to undertake various works to remedy the defects.
     100. After the owners took possession of the house in late January 2020, they identified further defects and in particular, the leaking roof.
     4. The owners gave the builder restricted access (after 3.30 pm on weekdays and anytime on weekends) to effect any repairs.
     5. The restricted access was because of the owners' requirement that they be at home when any repairs were being undertaken.
     6. Both the owners work full-time, although Mrs Faqiri sometimes works from home.
     7. The builder advised the owners in March 2020 that this restricted him from being able to undertake the work to ensure that the house was completed in a timely manner.[103]
     8. The builder attended on various occasions in March, April, June and July 2020 to rectify some of the works.
     9. On some occasions the owners did not co-operate when the builder/his contractors attended to rectify the works.
     10. In an email to the Senior Complaints Officer at the Building and Energy Commission dated Friday, 4 September 2020 the owners stated that they did not want any rectification undertaken by the builder until their case was 'progressed and looked at by SAT'.[104]
296. Following the commencement of proceedings in this Tribunal, the owners contend that after the mediation in January 2021 they were willing to allow the builder to attend the Dwelling and make the necessary repairs.[105] The builder refutes that assertion and says that his responses in the complaint schedule record his intention to repair the defects by mid March 2021(which we note is a matter of record) and yet there was no invitation by the owners to allow him to carry out these works.[106]
297. Further the builder's uncontradicted evidence, which we accept, is that when he attended the owners' house in late March 2021 to discuss the rectification work, at a prearranged meeting time confirmed with the owners, they did not want to discuss anything with the builder.[107]
298. On the evidence before us we find that following lodgement of the proceedings at this Tribunal the builder was willing to undertake repairs, but the owners were unwilling to allow the builder to attend to carry out rectification work.

Conclusion

299. Whilst the owners have expressed a preference for a monetary order (on the basis that they have lost confidence in the willingness and ability of the builder to rectify the defective work) the builder is willing to undertake rectification work and would prefer that a works order be made, rather than a monetary order.
300. We accept that there has been a breakdown in the relationship between the owners and the builder and that this is a relevant factor for our consideration in the exercise of our discretion under s 36(1) of the Act. However, this finding is not determinative. We accept that in most cases, as in this case, it is a natural consequence of any dispute between an owner and a builder.
301. On the basis of the above findings, we conclude that the owners' loss of confidence in the builder's willingness and ability to fix the defects is unjustified and unreasonable, particularly given the restrictive access they imposed on the builder to remedy the defects. Further we note that the Contract provides that any defects be remedied by the builder during normal business hours[108] and that the owners prevented this.
302. We consider that the builder ought to be provided with an opportunity to remedy his own defective work because such an order will compensate the owners while minimising hardship to the builder who will be able to carry out the work at substantially less cost than the amount charged by a third party contractor who may be engaged by the owners to undertake that work. We are not satisfied that the nature and extent of the items of complaint raise concern about the proficiency and competency of the builder to satisfactorily carry out the remedial work.
303. On the evidence before us we are not persuaded to exercise our discretion and grant a monetary order.

Issue 3: If any of the building works were carried out in a manner that is not proper and proficient or is faulty or unsatisfactory are the owners entitled to any compensation?

304. In respect of item 51, as stated above the builder has admitted liability in relation to the lower floor roof, and further we have found that some remedial work is required to the upper floor roof.
305. The owners are seeking compensation (under s 36(1)(c) of the Act) for the cost of alternative accommodation while the roof issues are addressed.[109] In support of their claim they have provided quotations for the cost of alternative accommodation varying between $122 per night to $265 per night for their family of five, all in the Cloverdale area. We note that the quote for accommodation at the higher daily rate was for 12 bed accommodation. We consider a mid-range of $200 per night to be a reasonable sum.
306. We are satisfied that the owners will incur these costs as a result of the builder failing to carry out the work in a proper and proficient manner or being faulty or unsatisfactory.
307. Accordingly, we will make an order that the builder pay to the owners the sum of $200 per night for the cost of alternative accommodation while the roof is being remediated, being compensation pursuant to s 36(1)(c) of the Act.
308. In respect of Item 10 as discussed above, we consider that the builder ought to pay the owners a nominal sum of $1,000 in compensation being compensation pursuant to s 36(1)(c) of the Act.
309. For the above reasons, the Tribunal makes the following orders.

Orders

The Tribunal orders:

1. Pursuant to s 46(1) of the State Administrative Tribunal Act 2004 (WA) the applicants have leave to withdraw items 9, 13, 15, 27, 32, 34, 35, 36, 37, 41, 50, and 72 and the items are withdrawn.
2. Pursuant to  s 38(1)(b)  of the  Building Services (Complaint Resolution and Administration) Act 2011  (WA) the Tribunal declines to make orders:

(i) relating to CC 1233 of 2020 and CC 1572 of 2020 in respect of items 14, 21, 23, 25, 29, 38, 42, 43, 44, 48, 55, 61, 64, 68; and

(ii) relating to CC 173 of 2022 in respect of item 1;

and those items are dismissed pursuant to s 46(2) of the State Administrative Tribunal Act 2004 (WA).

3. Within 28 days and pursuant to  s 36(1)(a)  of the  Building Services (Complaint Resolution and Administration) Act 2011  (WA), the respondent is to remedy the following items:

(a) the items it has admitted:

(i) in respect of CC 1233 of 2020 and CC 1572 of 2020 being items 2, 3, 4, 5, 6, 7, 11, 12, 17, 19, 20, 22, 24, 26, 31, 33, 39, 40, 46, 47, 49, 51 (in respect of the lower floor roof only) 52, 53, 54, 56, 57, 65, 66; and

(ii) in respect of CC 173 of 2022 being item 2; and

(b) the items that the Tribunal has identified as not being carried out in a proper and proficient manner or faulty or unsatisfactory being items 1, 8, 16, 18, 28, 30, 45, 51 (upper floor roof), 69, 70, 71, 73 (relating to CC 1233 of 2020 and CC 1572 of 2020).

4. To remedy the items referred to in order 3(a) the respondent is required to undertake the remedial work set out in the attached tables.
5. To remedy the items referred to in order 3(b):

(a) in respect of item 1, the robe in bedroom 3 is to be remedied so that it complies with the plans in a proper and proficient manner, protecting all adjacent surfaces;

(b) in respect of item 8, the existing alfresco sink be removed and replaced with a new sink in accordance with the contract/Spectra Selection Centre quotation dated 28 May 2018, and that the work is to be done in a proper and proficient manner protecting all adjacent surfaces;

(c) in respect of items 16 and 45 remedy the overlapping paint by touching up with paint;

(d) in respect of item 18, the crossover is to be remedied to comply with the provisions in the building permit and all work is to be done in a proper and proficient manner protecting all adjacent surfaces;

(e) in respect of item 28, the staining in the alfresco ceiling be remedied by sanding;

(f) in respect of item 30, the respondent is to rectify the defect by continuing the downpipe to the ground, on the face of the pier;

(g) in respect of item 51, the two roof tiles the cause of the leak above the manhole in the upper floor roof be remedied;

(h) in respect of item 69 the living room double entry doors be remedied to comply with Australian Standards 2688:2017;

(i) in respect of item 70 the dimensions of the pier footings be remedied to comply with the plans, and the footings be remedied so as not to be located on bricks and tree stumps;

(j) in respect of item 71 the respondent supply and install a toilet basin (in the toilet next to bedroom 3) of the same kind as the others as specified in the Spectra invoice forming part of the contract; and

(k) in respect of item 73 the respondent is to remedy the cause of the blocked or non-existent pet wash plumbing.

6. Within 28 days and pursuant to  s 36(1)(c)  of the  Building Services (Complaint Resolution and Administration) Act 2011  (WA), the respondent pay to the applicants compensation in the sum of $1,000 in respect of item 10.
7. Pursuant to  s 36  (1)(c) of the  Building Services (Complaint Resolution and Administration) Act 2011  (WA), the respondent pay to the applicants compensation in the sum of $200 per night for the cost of alternative accommodation while the roof is being remediated (in respect of item 51).
   

Table	CC 1233 of 2020 and CC 1572 of 2020 – Items of Complaint
Item No:	Scope of works necessary
2	Replace and install the doors so that the clearance between the doors and the frame is equal and parallel. The installation of the doors is to include the painting of all edges equal to the face, so the material is not affected by moisture. All work is to be done in a proper and proficient manner protecting all adjacent surfaces. The respondent is to remove all building rubbish from site
3	Remedy the theatre entry doors so they comply with Australian Standard 2688:2017 Timber and composite doors item 4.1.2, item 5.3.3.3, Australian Standard 1909 - 1984 Installation of timber door sets item 7.1, and item 7.2. All work is to be done in a proper and proficient manner protecting all adjacent surfaces. The respondent is to remove all building rubbish from site.
4	Remedy the front entry doors so they comply with Australian Standard 2688:2017 Timber and composite doors item 4.1.2, Australian Standard 1909 - 1984 Installation of timber door sets item 7.1, and item 7.2. All work is to be done in a proper and proficient manner protecting all adjacent surfaces. The respondent is to remove all building rubbish from site.
5	The respondent is to remove the doors and door frames to the entries of the ground floor ensuite and replace with a standard door frame and door to suite. All work is to be done in a proper and proficient manner protecting all adjacent surfaces. The respondent is to remove all building rubbish from site.
6	The respondent is to remove the doors and door frames to the entries of the living room door and replace with a door frame and door to suite. All work is to be done in a proper and proficient manner protecting all adjacent surfaces. The respondent is to remove all building rubbish from site.
7	Remove and replace the kitchenette sink so it is in accordance with the complainant’s selection as noted on the respondent's tax invoice number - INV-0105 in a proper and proficient manner protecting all adjacent surfaces. The respondent is to remove all building rubbish from site.
11	The respondent is to remedy the concrete floor slab at the external entry of the upper floor bathroom, so it complies with Australian Standard 3600:2018 Concrete structures Table 8.4.3, 17.1.3 Handling, placing and compacting of concrete and 17.1.4 Finishing of unformed concrete surfaces. All work is to be done in a proper and proficient manner protecting all adjacent surfaces. The respondent is to remove all building rubbish from site.
12	The respondent is to remedy the dining room concrete floor slab, so it complies with Australian Standard 3600:2018 Concrete structures Table 8.4.3, 17.1.3 Handling, placing and compacting of concrete and 17.1.4 Finishing of unformed concrete surfaces. All work is to be done in a proper and proficient manner protecting all adjacent surfaces. The respondent is to remove all building rubbish from site.
17	The respondent is to remedy the wall tiles inside the recessed feature wall panels to the front elevation of the home so as to eliminate the large gaps around the perimeters of the tile panels. All work is to be done in a proper and proficient manner protecting all adjacent surfaces. The respondent is to remove all building rubbish from site.
19	The respondent is to remedy the upper floor bathroom ceiling cornices, so they are installed and comply with Australian Standard 2589:2017 item 4.6 Fixing of cornices, The Western Australian Guide to Standards and Tolerances item 10.16 Cracking in cornices and item 10.17 Cracking at junctions of dissimilar materials. Any additional painting is to be in keeping with the colour and texture of the surrounding surfaces. All work is to be done in a proper and proficient manner protecting all adjacent surfaces. The respondent is to remove all building rubbish from site.
20	The respondent is to remedy the window and door frame, so they are left clean and in accordance with the Western Australian Guide to Standards and Tolerances item 19.09 Cleaning. All work is to be done in a proper and proficient manner protecting all adjacent surfaces. The respondent is to remove all building rubbish from site.
22	The respondent is to remedy the alfresco roof gutter above the dining room sliding door, so a stop end that a manufactured stop end is installed that matches the roof gutter profile. All work is to be done in a proper and proficient manner protecting all adjacent surfaces. The respondent is to remove all building rubbish from site.
24	The respondent is to remedy the garage ceiling cornices so they are compliant with Western Australian Guide to Standards and Tolerances item 10.17 Cracking at junctions of dissimilar materials, the cut through pieces of cornices and drill holes are patched to an industry standard. The respondent is to repaint the ceilings in accordance with Australian Standard 2311:2017 Guide to the painting of buildings. All work is to be done in a proper and proficient manner protecting all adjacent surfaces. The respondent is to remove all building rubbish from site.
26	The respondent is to remedy the alfresco roof gutter above the dining room sliding door, so a stop end that a manufactured stop end is installed that matches the roof gutter profile. All work is to be done in a proper and proficient manner protecting all adjacent surfaces. The respondent is to remove all building rubbish from site.
31	The respondent is to remedy the floor tiles to the 1st floor bathroom floor including the shower floor, so they conform to Australian Standard 3958.1-2007 Ceramic tiles  Part 1:  Guide to the installation of ceramic tiles - Falls in floor finishes. The respondent is expected to maintain the 1st floor bathroom waterproofing in good order during the floor tile remedy works and upon completion the integrity of the ground floor ensuite waterproofing is to remain uncompromised. Other than surface tension, water from the shower is to be directed to the floor waste and not pool on the tiles. The remedial tiling is to be in keeping with the colour and texture of the existing tiles and grout. All work is to be done in a proper and proficient manner protecting all adjacent surfaces. The respondent is to remove all building rubbish from site.
33	The respondent is to remedy the internal stair timber skirting so as to get a uniform finish with no broken sections in the skirting from the base of the stairs to the top landing. All work is to be done in a proper and proficient manner protecting all adjacent surfaces. The respondent is to remove all building rubbish from site.
39	The respondent is to remedy the upper floor ceiling access panel by painting the panel in accordance with Australian Standard 2311:2017 Guide to the painting of buildings. All work is to be done in a proper and proficient manner protecting all adjacent surfaces. The respondent is to remove all building rubbish from site.
40	The respondent is to remedy the ground floor ensuite bath tap mixer, so it is installed as per the manufacturer's specification and Australian Standard 3740-2010 item 3.10 Penetrations 3.10.1 Shower areas. The respondent is to remove the overspread of flexible sealant from the face of the tiles. All work is to be done in a proper and proficient manner protecting all adjacent surfaces. The respondent is to remove all building rubbish from site.
46	The respondent is to remedy the removed concrete paving below the gas meter box, the new paving is to be of similar colour and texture to the existing. All work is to be done in a proper and proficient manner protecting all adjacent surfaces. The respondent is to remove all building rubbish from site.
47	The respondent is to remedy the front entry doors and door frame by cleaning the plaster smears and painting the doors and door frame in accordance with Australian Standard 2311:2017 Guide to the painting of buildings. The respondent is to remove the glue from the front entry door reveals so the wall plaster is readied for painting. All work is to be done in a proper and proficient manner protecting all adjacent surfaces. The respondent is to remove all building rubbish from site.
49	The respondent is to install the upper floor kitchenette oven as per the manufacturer's specifications. All work is to be done in a proper and proficient manner protecting all adjacent surfaces. The respondent is to remove all building rubbish from site.
51 (Lower roof only)	The respondent is to remedy the entire roof tiles and guttering so they comply with the manufacturer's technical information and standards guide, and the National Construction Code - 2016 Volume Two - item F2.2.1 Surface water. The respondent is to remedy all gaps, cracked and damaged tiles and complete the installation of the roof tiles, flashings and sarking so that moisture ingress does not occur. All work is to be done in a proper and proficient manner protecting all adjacent surfaces. The respondent is to remove all building rubbish from site.
52	The respondent is to remedy the garage ceiling cornices so they are compliant with Western Australian Guide to Standards and Tolerances item 10.17 Cracking at junctions of dissimilar materials, the cut through pieces of cornices and drill holes are patched to an industry standard. The respondent is to repaint the ceilings in accordance with Australian Standard 2311:2017 Guide to the painting of buildings. All work is to be done in a proper and proficient manner protecting all adjacent surfaces. The respondent is to remove all building rubbish from site.
53	The respondent is to remedy the wall plaster chips to the theatre and sitting rooms around the high and low gas vents. All work is to be done in a proper and proficient manner protecting all adjacent surfaces. The respondent is to remove all building rubbish from site.
54	The respondent is to remedy the external cavity perimeter wall weepholes, so they are installed as per the manufacturer's installation guide. All work is to be done in a proper and proficient manner protecting all adjacent surfaces. The respondent is to remove all building rubbish from site.
56	The respondent is to remove the doors and door frames to bedroom 2 ensuite entry and the garage external rear pedestrian door and replace them with a standard entry door frames and doors to suite. The respondent is to paint finish the newly installed doors and door frames in a similar colour and texture finish to existing. All work is to be done in a proper and proficient manner protecting all adjacent surfaces. The respondent is to remove all building rubbish from site.
57	The respondent is to remedy the roof gutters surrounding the laundry, so they are compliant with the National Construction Code Volume Two, 2016 item 3.5.2.4 Installation of gutters. The respondent is to remedy the roof tiles, so they comply with the manufacturer's technical information and standards guide, and the National Construction Code - 2016 Volume Two - item F2.2.1 Surface water. All work is to be done in a proper and proficient manner protecting all adjacent surfaces. The respondent is to remove all building rubbish from site.
65	The respondent is to remedy the unprotected cabinet panels to the kitchen, vanities, alfresco, kitchenette and laundry so they are compliant with Australian Standard 4386:2018 Cabinetry in the built-in environment - Commercial and domestic - 6.3.2 Surface finishes and 6.3.6 Exposed edges. The respondent is to close the openings in the bases of all cabinets just above the kick boards. All work is to be done in a proper and proficient manner protecting all adjacent surfaces. The respondent is to remove all building rubbish from site.
66	The respondent is to remedy the gap below the ceiling cornice and the chips to the alfresco wall plastering. The wall plaster repairs must be of similar colour and texture to the existing, this may require repaired areas to be re-texture coated to the nearest architectural breaks in order to achieve a consistent and uniform finish. All work is to be done in a proper and proficient manner protecting all adjacent surfaces. The respondent is to remove all building rubbish from site.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MS V Haigh, MEMBER

5 SEPTEMBER 2022

[1] Exhibit 1 pages 13 to 42.
[2] Waldron and Afra Construction Pty Ltd [2013] WASAT 207 at [14]; approved in Lewis and Waco Pty Ltd [2016] WASAT 127 at [14].
[3] Owners of Strata Plan 59377 and Carine Homes Pty Ltd [2014] WASAT 39 at [23].
[4] Diploma Construction (WA) Pty Ltd v South Central WA Pty Ltd [2015] WASC 289 at [31].
[5] Total Investments Pty Ltd and Rapley Wilkinson Pty Ltd [2015] WASAT 29 at [32].
[6] Exhibit 1.
[7] Exhibit 2 pages 610-619; and Exhibit 1.
[8] Exhibit 3.
[9] Exhibit 4.
[10] Exhibit 5.
[11] Exhibit 12.
[12] Exhibit 6.
[13] Exhibit 7.
[14] Exhibit 8.
[15] Exhibit 9.
[16] Exhibit 10.
[17] Exhibit 11.
[18] Exhibit 13.
[19] Exhibit 12.
[20] Exhibit 14.
[21] In respect of his report at page 465-499 of Exhibit 1
[22] In respect of his report at pages 501-514 of Exhibit 1.
[23] In respect of his report at page 417-464 of Exhibit 1.
[24] In respect of his report at pages 545-522 of Exhibit 1.
[25] ts 248, 16 December 2021.
[26] ts 252, 16 December 2021.
[27] Exhibit 5.
[28] Items 9, 13, 15, 27, 32, 34, 35, 36, 37, 41, 50, and 72.
[29] Items 2, 3, 4, 5, 6, 7, 11, 12, 17, 19, 20, 22, 24, 26, 31, 33, 39, 40, 46, 47, 49, 52, 53, 54, 56, 57, 65 and 66.
[30] ts 6, 15 December 2021 and ts 26 and 27, 17 June 2022.
[31] ts 28-30, 17 June 2022.
[32] ts 193, 16 December 2021.
[33] Exhibit 1pages 40-42.
[34] Exhibit 1 page 184.
[35] Exhibit 1 pages 40 and 467-468.
[36] Exhibit 1 page 117.
[37] ts 59, 15 December 2021.
[38] Exhibit 1 page 26.
[39] Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613 at [7].
[40] ts 203, 16 December 2021.
[41] ts 223, 16 December 2021.
[42] ts 58, 17 June 2022.
[43] Exhibit 5
[44] Exhibit 1 page 508.
[45] Exhibit 1 page 505.
[46] Exhibit 4.
[47] Exhibit 1 page 87.
[48] ts 91, 15 December 2021.
[49] ts 91, 15 December 2021.
[50] ts 92 and 95, 15 December 2021.
[51] ts 46, 17 June 2022.
[52] Exhibit 1 page 61.
[53] Exhibit 1 pages 80-89.
[54] Exhibit 1, page 87.
[55] Exhibit 1 page 61.
[56] ts 99-100, 15 December 2021.
[57] ts 183-184, 16 December 2021.
[58] ts 184, 16 December 2021.
[59] ts 103, 15 December 2021.
[60] Exhibit 9.
[61] Exhibit 5.
[62] Exhibit 1 page 438.
[63] ts 239, 16 December 2021.
[64] ts 74, 15 December 2021.
[65] Exhibit 1 page 477.
[66] Exhibit 1 page 61.
[67] ts 61, 15 December 2021.
[68] Exhibit 1 page 439.
[69] Exhibit 1 page 600; ts 218, 16 December 2021.
[70] Exhibit 4.
[71] Exhibit 1 pages 66-67.
[72] Exhibit 1 page 39.
[73] ts 217, 16 December 2021.
[74] Exhibit 1 page 39.
[75] ts 104, 17 June 2022.
[76] ts 37 and ts 38, 15 December 2021.
[77] Exhibit 5.
[78] Exhibit 4.
[79] Exhibit 1 pages 138 and 378; Exhibit 6.
[80] ts 243, 16 December 2021.
[81] Exhibit 7.
[82] ts 37-41, 17 June 2022.
[83] ts 39, 17 June 2022.
[84] ts 40, 17 June 2022.
[85] Exhibit 1 page 484.
[86] ts 30, 15 December 2021.
[87] Exhibit 1 pages 545-565.
[88] ts 45, 15 December 2021.
[89] Exhibit 1 page 469.
[90] ts 74-75, 15 December 2021.
[91] ts 164, 16 December 2021.
[92] ts 164, 16 December 2021.
[93] Exhibit 1 pages 465-500.
[94] ts 93, 17 June 2022.
[95] Exhibit 11 page 5.
[96] Gemmill Homes Pty Ltd v Sanders [2018] WASC 179 (Gemmill) at [134].
[97] Gemmill at [147].
[98] Hippydayze at [126].
[99] Nelson v Mardesic (1998) 22 SR (WA) 42 at 46.
[100] Jennings and Howitt [2019] WASAT 133 at [31].
[101] Exhibit 1 page 598.
[102] Exhibit 1, page 399 to 416
[103] Exhibit 1, page 170
[104] Exhibit 1 page 136.
[105] Exhibit 1 page 584.
[106] Exhibit 3.
[107] ts 192-193, 16 December 2021.
[108] Exhibit 1 page 35.
[109] ts 23, 15 December 2021.