STAVELEY and ZENECON PTY LTD

[2018] WASAT 37

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

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

CITATION:   STAVELEY and ZENECON PTY LTD [2018] WASAT 37

MEMBER:   MS P LE MIERE (MEMBER)

MR C MARSH (SESSIONAL MEMBER)

HEARD:   27 FEBRUARY 2018, 19 MARCH 2018 & 16 APRIL 2018

DELIVERED          :   28 MAY 2018

FILE NO/S:   CC 521 of 2017

CC 873 of 2017

BETWEEN:   DEBRA LYN STAVELEY

Applicant

AND

ZENECON PTY LTD

Respondent

BUILDING COMMISSION

Interested Party

Catchwords:

Building remedy order -  Meaning of - Uncertainty as to remedial work required by order - Tribunal to determine meaning - Tribunal to determine remedial work required by order - Discretion of Tribunal to not revoke where non-compliance technical - Reasonableness of remedial work sought  -  Consideration for Tribunal is whether work required by order completed not whether problem caused by faulty work is remedied

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s3, s 5, s 36, s 49, s 49(2), s 49(7), s 51, s 51(2), Pt 4 Div 5
State Administrative Tribunal Act 2004 (WA), s 87

Result:

Application Partially Successful

Category:    B

Representation:

Counsel:

Applicant	:	Elspeth Hensler
Respondent	:
Interested Party	:

Solicitors:

Applicant	:	Elspeth Hensler
Respondent	:	In Person
Interested Party	:	In Person

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

Barnett and Barrier Reef Pools (WA) Pty Ltd [2016] WASAT 50

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

Hoskins and Daniel Vinci T/As D'Vinci Contracting [2011] WASAT 188

Owners of Strata Plan No 74602 v Brookfield Australia Investments Ltd [2015] NSWSC 1916

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1. Ms Debra Lyn Staveley (applicant) made two separate complaints to the Building Commission pursuant to s 5 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) concerning her home at 70A Lewington St Rockingham (property). She alleged a building service provided by Zenecon Pty Ltd (respondent) was not carried out in a proper and proficient manner or was faulty or unsatisfactory.

2. The first complaint to the Building Commission dated 18 December 2015 resulted in the Building Commission, pursuant to s 36 of the BSCRA Act issuing Building Remedy Order No 123 of 2016 dated 6 May 2016. I will refer to this as the BCBRO.

3. The second complaint dated 20 May 2016 was referred by the Building Commission to the Tribunal and following mediation the matter was resolved by a Consent Building Remedy Order dated 13 December 2016.  The order made required the respondent to carry remedial work to the property.  I will refer to this consent order as the Consent BRO.

4. On 26 October 2016 the applicant complained to the Building Commission pursuant to s 51 of the BSCRA Act that the respondent had not complied with aspects of the BCBRO. On 17 March 2017 this complaint was transferred to the Tribunal. The Tribunal consented to the transfer on 11 April 2017 and is the subject of proceedings CC 521 of 2017.

5. On 17 May 2017 the applicant filed an application in the Tribunal pursuant to s 51 of the BSCRA Act alleging that the respondent had not complied with aspects of the Consent BRO. This matter is the subject of proceedings CC 873 of 2017.

6. Both applications are for the conversion of the building remedy orders to monetary order pursuant to s 36(1)(b) and or s 36(1)(c) of the BSCRA Act.

7. Senior Member Wallace on 30 May 2017 ordered proceedings CC 873 of 2017 and CC 521 of 2017 to remain separate proceedings, were to be heard together and the evidence in one proceeding to be evidence in the other proceeding.

Relevant background

1. The Home Building Contract for the property was between the respondent builder and the original owners.  The Certificate of Completion for the property is dated 10 September 2012.

2. The applicant is the subsequent owner of the property who purchased the property in about March 2015.

3. The items of complaint requiring remedial work that the applicant alleges has not been completed are set out in the BCBRO (Exhibit 1 page 6) and the Consent BRO (Exhibit 3).

4. Relevantly only items numbered 3, 4, 5, 6 and 7 of the Consent BRO were maintained at hearing.

   Issues for determination

5. The issues to be determined by the Tribunal are:

   •What was the remedial work the respondent was required to do pursuant to the BCBRO and the Consent BRO?

   •Has the respondent completed the remedial work required and complied with the BCBRO and or Consent BRO?

   •If the respondent has not complied with the BCBRO and or Consent BRO should the Tribunal exercise its discretion under s 51 of the BSCRA Act and revoke the BCBRO and or Consent BRO and make a Building Remedy Order pursuant to s 36(1)(b) or (c).

   •If the Tribunal determines it should revoke the BCBRO and or Consent BRO and made a building remedy order, what is an appropriate order?

   The statutory scheme

6. All following references to sections or parts of legislation are references to sections or parts of the BSCRA Act unless the context indicates otherwise.

7. Section 51 provides that:

   (1)In this section ­

   responsible adjudicator, in relation to an order, means ­

   (a)if the order was made by the Building Commissioner, the Building Commissioner; and

   (b)if the order was made by the State Administrative Tribunal, the State Administrative Tribunal.

   (2)If the responsible adjudicator is satisfied that a building remedy order referred to in section 36(1)(a) to remedy a building service has not been complied with, or has been complied with in part only, by the person to whom it was given by the responsible adjudicator, the responsible adjudicator may ­

   (a)revoke the order in relation to remedying the building service or the part in question; and

   (b)make a building remedy order referred to in section 36(1)(b) or

   (c)in relation to that building service.

   (3)If the responsible adjudicator is satisfied that a HBWC remedy order referred to in section 41(2)(a) to do any work has not been complied with, or has been complied with in part only, by the person to whom it was given by the responsible adjudicator, the responsible adjudicator may ­

   (a)revoke the order in relation to the work or the part in question; and

   (b)make an order against the person for the payment of a sum of money as compensation for the failure to comply.

   (4)An order under subsection (3)(b) is taken to be a HBWC remedy order.

   (5)Subsections (2) and (3) apply whether or not a person has been convicted of an offence under section 53 or the State Administrative Tribunal Act 2004 section 95 before the revocation.

   (6)Sections 37, 38, 42 and 43 apply to the making of an order under this section.

   (7)The revocation of an order under subsection (2) or (3) does not affect ­

   (a)anything done under the order before the revocation; or

   (b)a penalty that has or may be imposed under section 53, or the State Administrative Tribunal Act 2004 section 95 in respect of the failure to comply; or

   (c)any action that has or may be taken under the Building Services (Registration) Act 2011 section 57 or 58 in respect of the failure to comply.

8. Section 36 provides:

   (1)A building remedy order consists of one of the following ­

   (a)an order that a person who carried out a regulated building service remedy the building service as specified in the order;

   (b)an order that a person who carried out a regulated building service pay to an aggrieved person such costs of remedying the building service as the Building Commissioner or State Administrative Tribunal, as the case requires, considers reasonable and specifies in the order;

   (c)an order that a person who carried out a regulated building service pay to an aggrieved person a sum of money specified in the order to compensate the aggrieved person for the failure to carry out the building service in a proper and proficient manner or for faulty or unsatisfactory building work.

   (2)A building remedy order may require that the order be complied with within a time specified in the order.

   (3)A person who is not a building service contractor may arrange for a building service to be carried out for the purpose of compliance by that person with a building remedy order referred to in subsection (1)(a) despite the Building Services (Registration) Act 2011 section 7.

9. A regulated building service is defined in s 3 as:

   (a)a building service carried out by a registered building service provider or an approved owner­builder;

   (b)home building work that is ­

   (i)carried out by a person for another person under a home building work contract or other contract or arrangement for gain or reward; and

   (ii)not carried out for a person who is in turn obliged to perform the work under another contract;

   (c)any other service or work prescribed for the purposes of this definition;

10. Section 5 permits the making of complaints about a regulated building service matter in the following terms:

    (1)Subject to the regulations, 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[.]

The hearing

1. At the hearing the applicant was represented by counsel and the respondent was represented by a director of the respondent, Mr E de Haan.  The hearing on 27 February 2018 was part heard and adjourned for further hearing on 19 March 2018.

2. At the resumption of the hearing on 19 March 2018 the Tribunal drew to the attention of the respondent that in the event the Tribunal found he had not complied with the BCBRO or Consent BRO his failure to call expert evidence in relation to any other possible remedy might result in the Tribunal not being able to consider any other remedy other than that proposed by the applicant.

3. The respondent then sought an adjournment to enable him to obtain expert evidence in respect of the scope of the appropriate remedial work confined to order 2 of the BCBRO.

4. The Tribunal granted the adjournment and made consequential programing orders.

5. The matter came on for hearing again on 16 April 2018.

6. The following documents were admitted into evidence:

   •two volumes of documents (Exhibit 1and Exhibit 2);

   •a copy of BCBRO ­ Exhibit 3;

   •amended costings from Mark Wells, applicant's costings expert - Exhibit 4;

   •extract from 2011 Building Code of Australia 2011 being clause 3.1.2.2 - Exhibit 5;

   •the Building Commission file in respect of Complaint C128374 ­ Exhibit 6;

   •Ecovera Report dated 3 April 2018 ­ Exhibit 7;

   •Mr Wells' costs of drain remedy dated 9 April 2018 ­ Exhibit 8;

   •report from Hendry Group dated 3 April 2018 ­ Exhibit 9; and

   •costing report IQ Design dated 4 April 2018 ­ Exhibit 10.

7. The applicant and respondent both gave evidence.

8. The following experts in their respective fields gave there evidence concurrently:

   •Mr Rick Martelli ­ applicant's expert builder;

   •Mr Mike Cornhill ­ applicant's costings expert;

   •Mr Mark Wells ­ applicant's costings expert;

   •Mr Quintin Kleyn ­ respondent's expert builder;

   •Mr Tyron Collicott ­ respondent's costings expert;

   •Mr Kyel Grainger ­ respondent's costings expert; and

   •Mr Dwayne Ballast respondent's costings expert.

   The evidence

BCBRO complaint 1 ­ Single skin wall garage:  effloresence/moisture

1. The respondent pursuant to complaint 1 of the BCBRO was required to:

   … remedy the Garage and Store walls by the provision of works compliant with the requirements of the Building Code of Australia 2011 Volume Two Clause P2.2.2 including making good as necessary in a proper and proficient manner.

2. The applicant alleged that the remedial work (if any) carried out by the respondent was not compliant with Volume Two clause P2.2.2 of the Building Code of Australia 2011 (BCA).  The applicant seeks a monetary order so that she can arrange to have the remedial work she alleges is necessary, carried out.

3. The respondent gave evidence that pursuant to the BCBRO he applied a waterproof coating to the outside of the garage wall.  He says it is now complaint with the BCA.  The respondent maintains he has carried out all necessary remedial work to comply with the BCBRO.

4. Mr Kleyn in his expert report (Exhibit 2 page 132) set out the performance criteria of the BCA.  The performance criteria requirements are that the external wall of the garage must prevent the penetration of water that could cause 'undue dampness or deterioration of building elements'.

5. Mr Kleyn in his evidence at hearing and in his expert report said the garage wall is compliant with the BCA (Exhibit 2 page 132).

6. Mr Martelli was of the opinion that continued effloresce on a wall could be a sign of dampness that could lead to a deterioration in the bricks or mortar.  He agreed however that the property, now some six years post completion does not show any sign of brickwork or mortar deterioration.

7. He said there was some minor rust on steel in the garage but that could have been caused by the salt in the air in the coastal environment in which the building is situated.

8. The applicant gave evidence that she had cleaned off the efflorescence on a number of occasions but it had continued to come back including after the respondent had carried out the remedial work.

9. The evidence of the applicant's expert was that there was no deterioration of the building elements.

Costings

1. Mr Cornhill's report said the cost of remedial work necessary would be $4,000.

BCBRO complaint 3 ­ master bedroom:  water ingress

1. The BCBRO reads as follows:

   The Respondent is to remedy the Master Bedroom sliding door by the provision of works compliant with the requirements of the Building Code of Australia 2011 Volume Two Clauses 3.1.2.3 and P2.2.2 including making good as necessary in a proper and proficient manner.

2. The applicant's first expert report by Mr Martelli, No 1539 dated 20 April 2016 (Exhibit 1 page 215) at page 219 (Mr Martelli's first report) states that no water ingress to the bedroom was observed.

3. The respondent's expert report says the master bedroom sliding door is compliant with the BCA.

4. Mr Martelli's first report also discusses the tiling of the alfresco floor area and in particular that it is not compliant with clause 3.1.2.3 of Volume 2 of the BCA (clause 3.1.2.3).

5. It is accepted by both parties that the respondent laid the concrete under the tiles in the alfresco floor area and it was the original owners who tiled the alfresco floor and in so doing covered up drainage holes installed by the respondent.

6. The focus of the applicant's evidence was on the alfresco area floor.  It was put by the applicant that the BCBRO required the respondent to make the alfresco tiled floor compliant with clause 3.1.2.3.

7. Mr Martelli's evidence in respect of the alfresco area floor outside of the master bedroom sliding door is that the tiling in the alfresco area is level with the sliding door and slopes towards the house such that there is no adequate site drainage as required by clause 3.1.2.3.

8. The applicant contends that the remedial work required of the respondent (and intended) by the BCBRO is to provide the required site drainage by removing and relaying the concrete slab at the required level and to ensure it slopes away from the house.

9. The applicant further contends that the respondent is also required to replace and retile the alfresco floor.

10. Mr Martelli did not carry out any destructive testing on the alfresco floor and is therefore unable to say what level the concrete was laid or whether it is sloped either to or from the sliding door or if it is sloped at all.

11. Mr Martelli noted that the level of the path at the side of the property appeared to be level with the height of the sliding door however the uncontested evidence of the respondent is that the respondent did not lay that path.

12. The plans submitted to and approved by the City of Rockingham (City) show the concrete of the alfresco area floor level as being level 0c which would suggest that the concrete was laid to that level.

13. It would appear from the requirements of the BCA that if the floor was laid at 0c level it would not comply with the BCA.  However the explanatory note in clause 3.1.2.3 specifically allows for the finished ground levels to vary.  The Tribunal does not have the complete plans or approval documents that may provide an explanation as to why the alfresco level was approved at that level.

14. The Tribunal does not know what the actual height of the concrete slab is, however it is more likely than not that it was laid at level 0c and the concrete kept slightly below the door frames (letter from respondent to Building Commission 4 April 2016 Exhibit 6 page 52).

15. It is possible the City approved the height at level 0c on the basis of particular conditions that would make the alfresco floor area otherwise compliant with the BCA.  The Tribunal however is left not knowing if there were conditions and if so if they were complied with.

16. It is accepted by the applicant that the tiling, installed by the original owners of the property covered up drainage holes.

17. There was evidence from the original owners of the property that they had had a problem with water ingress that had been resolved by the respondent putting a water proofing coating to the sliding door.

18. Mr Martelli said in a recent inspection he saw evidence of water damage to the timber floor of the master bedroom (ts 30, 27 February 2018).  However he also said that he could not say how or when the water damage he had observed had occurred.

19. Mr Kleyn gave evidence (ts 24, 27 February 2018) that the threshold of the door was approximately 20 millimetres above the floor level and that it was unlikely or impossible for water to enter through the sliding door.  Mr Kleyn was not challenged on this by the applicant.

20. Mr Martelli gave evidence that because of the properties coastal position you would get south­west driven rains hitting the door and you would get water ponding in the area (ts 29, 27 February 2018).

Costs of remedial work

1. Mr Cornhill called by the applicant to give evidence as to the costs of the remedial work said that an alternative to removing all the tiles and the concrete and relaying the alfresco floor area was to 'diamond saw area of concern.  Fit slotted drain in and grout around.  Diamond saw crack and grout in with hardrock and tidy up' (Exhibit 2 page 19).  He estimated this would cost in the vicinity of $1,500. 

2. Mr Cornhill's costing for the removal of the tiles and concrete slab, the relaying of the concrete and tiles is $14,594.50 including GST (Exhibit 2 page 19).

3. Mr Wells costing for this item is $30,360.50 plus a proportion of supervisor costs, administration and insurances together with 15% profit.

4. The respondent did not submit any costings in respect of removing the concrete slab and relaying the slab and tiles.

5. Further to orders made by the Tribunal on 19 March 2018 the respondent provided costings by Mr Ballast of IQ Constructions for the installation of a drain in front of the master bedroom sliding door to prevent any water ingress.  His estimate was $1,795.25 (Exhibit 10).

6. Mr Wells provided costings for the installation of a drain together with other works including the removal of the frame of the master bedroom sliding door of $23,636 (Exhibit 8).

7. Mr Martelli also provided a report (Exhibit 7) and gave evidence in respect of the scope of works he considered necessary for the installation of a drain which included the removal of the frame of the master bedroom sliding door together with other extensive associated work.

1. Mr Kleyn provided a report dated 3 April 2018 (Exhibit 7) in which he again reiterated that he considered no further remedial work was required as in his opinion the master bedroom sliding door was compliant as it met the performance criteria.

2. He further opined that whilst a drain was not covered by the deemed­to­comply provisions it was an option that would contribute with meeting the objectives of the Performance Requirements as a drain would be an effective method of preventing water ingress.

3. Neither Mr Kleyn nor Mr Ballast agreed with Mr Martelli that it would be necessary to remove the master bedroom sliding door frame as outlined in his report.

4. When Mr Martelli was asked by the Tribunal about the diagram of the door frame attached to his report he agreed that it did not represent the alfresco floor or indeed building work generally in Western Australia where, as in this instance, a door frame is installed in the cavity between the brickwork.

alfresco ceilingConsent BRO complaint 3 ­

1. The respondent does not challenge the applicant's allegation that this complaint item has not been complied with or that this part of the Consent BRO should be revoked and a monetary order made.

2. The dispute between the parties is to the amount of the monetary order.

3. The applicant's claim is for $1,040 further to a quote from Mr Wells.  The applicant also provided a quote from Cornhill Building & Fabrication Pty Ltd for $860. 

4. The respondent provided the Tribunal with a quote from Mr Collicott for $484 inclusive of GST and from Mr Grainger of $297 inclusive of GST.

5. All experts gave their evidence in relations to costs by telephone concurrently.  The parties and the Tribunal questioned the experts as to how they arrived at their quotations.

6. Mr Cornhill, Mr Collicott and Mr Grainger all gave not dissimilar evidence in respect of the work required, the materials necessary and the methodology.

7. Mr Grainger was of the opinion that the 'job' was one that he could have his employees complete on their way home.

8. Mr Cornhill was the only expert who had actually attended the site and seen personally what was required.  His price was also one that he was providing to a lay customer not another builder.

9. Both Mr Cornhill and Mr Collicott considered it would take between 5 ­ 8 hours to complete the job and it would cost somewhere between $50 and $80 for materials.  There was some difference in their methodology in that Mr Cornhill considered the insulation needed to be removed and Mr Collicott thought that it could be moved to one side.

   Consent BRO complaint 4 ­ exhaust fans

10. The requirement of the order is:

    The respondent is to remedy the exhaust fans by the provision of works to include ducting between the fans and roof flumes including making good as necessary in a proper and proficient manner.

11. The respondent's evidence is that the remedial work he carried out was to connect ducting to the fluming of those exhaust fans that already had external fluming installed.  He says that as he has now done this he has complied with the Consent BRO.

12. The applicant does not dispute that the respondent had now connected the exhaust fans to the fluming that was originally installed however the applicant maintains that the Consent BRO requires the respondent to ensure all exhaust fans have ducted fluming and further that that is what is required by the BCA.

13. The respondent denies that all the exhaust fans need to be flumed as maintained by the applicant to be compliant with the BCA and that is why he did not flume them to the external air.

14. The evidence of the respondent is that the fluming he installed had originally been ducting to the exhaust fans and the fluming had been disconnected when the original owner had work carried out.  He said that he agreed to do the remedial work as stated in the Consent BRO even though he considered he was not liable to do so because it was a small job and he thought it would resolve the dispute.

15. Mr Martelli is of the opinion that to be compliant with the BCA all exhaust fans need to be flumed to the external air.

16. Mr Kleyn is of the opinion that because there are other means of ventilation in the rooms in which the exhaust fans are not flumed to the external air, compliance with the BCA does not require those exhaust fans to be flumed to the external air.

    Costings

17. The applicant accepted that whilst she had obtained costing in respect of four exhaust fans there were now only three that needed to be connected.

18. Mr Cornhill's quote for four exhaust fans to be flumed is $960.

19. Mr Well's quote for three exhaust fans is $1,710 plus a proportion of supervisor costs, administration and insurances together with 15% profit.

20. The quote from Meridian Roof Pluming Specialists on behalf of the respondent is for $880.

    Consent BRO complaint 5 ­ alfresco wall not adequately tied

21. This complaint arose from Mr Martelli's first report wherein he opined that the alfresco wall was not adequately tied in accordance with Australian Standard 4773.2 section 10.6.

22. The Consent BRO required:

    The respondent is to remedy the alfresco wall by the provision of works that allow compliance with AS 4773.2 section 10.6 including making good as necessary in a proper and proficient manner.

23. In Mr Martelli's second report he said the work required by the Consent BRO had not been completed however he acknowledged that the method that had been used by the respondent would be deemed­to­comply or alternatively did not in any event require further works, if, retrospective certification was provided by a structural engineer.

24. The respondent's evidence is that the alfresco wall is structurally sound and that he has obtained retrospective certification from Mr Bradley a consulting civil and structural engineer (Exhibit 2 page 246).

25. Mr Martelli agreed the respondent has obtained certification (ts 68, 27 February 2018) but said that in his opinion the respondent ought to obtain approval from the local authority for approval of the completed works as an alternative solution.

Costings

1. Mr Cornhill's quote is $980.

2. Mr Well's quote is $2,270 plus a proportion of supervisor costs, administration and insurances together with 15% profit.

Consent BRO ­ complaint 6 ­ installation of clad roofing not compliant with the manufacturer's recommendations.

1. The Consent BRO required:

   The respondent is to install profiled impregnated foam at the fascia of the front elevation of the roof to prevent moisture ingress from back flow from the gutter into the eaves filing and making good all affected surfaces.

2. Mr Martelli inspected the metal clad roof after the respondent had completed the remedial work required by the Consent BRO.  In his report dated 10 April 2017 (Exhibit 1 page 84) at page 101 he found the work had been completed and noted there were some minor gaps in the foam filler.

3. The respondent says he has complied with the Consent BRO and that this is confirmed by the applicant's expert.

4. The applicant says that the Consent BRO should be read so as to require the respondent to do whatever work is necessary to prevent moisture ingress.

5. The applicant accepts that the respondent has installed profiled impregnated foam at the fascia of the front elevation of the roof but as this had not prevented moisture ingress further remedial work by the respondent is required to prevent moisture ingress.

6. The experts, in summary, opined that the installation of profiled impregnated foam at the fascia of the front elevation of the roof was never going to prevent flow back from the gutters into the eaves.  Mr Martelli said it was not a practical order and it would not do what it seemed to suggest it would do (ts 79, 27 February 2018) but it would prevent wind driven rain (ts 80, 27 February 2018).

7. Mr Martelli also gave evidence that if there was currently moisture ingress this could come from two sources and that it could not be said that the moisture was because water was getting in any of the small gaps he noted in the foam filler.

8. The respondent gave evidence that others who installed the patio had removed the original gutters and installed the box gutter and the current water ingress (if any) is caused by the box gutter.

9. He went on to say that he consented to the order as a concession to the applicant to resolve the matter and the order was not meant to fix any problems caused by the box gutter.

10. Mr Wells quote for replacing roof sheets is $1,960 plus a proportion of supervisor costs, administration and insurances together with 15% profit.

11. Mr Cornhill's quote for increasing the flashing of 83 metres is $5,460.

    Consent BRO compliant 7 ­ external paving/concrete

12. The Consent BRO required:

    The respondent is to install weepholes to the front elevation wall of the patio area.

13. The applicant does not dispute that the respondent has installed some weep holes.  The dispute as to what is meant by the 'front elevation wall of the patio area'.

14. Mr Martelli said the order had not been complied with because he considered the 'front elevation' to include the return wall to the office. He conceded that if it did not then the Consent BRO had been complied with.

15. Mr Well's quote for the installation of weep holes is $500 plus a proportion of supervisor costs, administration and insurances together with 15% profit.

Analysis of the evidence and findings

BCBRO complaint 1 ­ single skin wall garage

1. The applicant gave evidence that she had cleaned off the efflorescence on a number of occasions.

2. The evidence of the applicant's expert is that there is no deterioration of the building elements.

3. Whilst the phrase 'undue dampness' does not have to result in damage to the building elements it is necessarily more than 'a loss of amenity for occupants' given this requirement does not apply to class 10 buildings.

4. The Tribunal is not persuaded that the penetration of water, if any has caused or is causing undue dampness.

5. The Tribunal is not persuading that the work completed by the respondent is not compliant with clause P2.2.2 of the BCA Volume Two.

6. The Tribunal is not satisfied that complaint 1 of the BCBRO has not been complied with and declines to revoke compliant 1 of Building Remedy Order No 123 of 2016.

BCBRO complaint 3 ­ master bedroom:  water ingress

1. Mr Martelli gave evidence that because of the properties coastal position you would get south­west driven rains hitting the door and you would get 'water ponding' in the area (ts 29, 27 February 2018).  He did not say that as constructed, there would be water ingress into the master bedroom.

2. In an application under s 51 of the BSCRA Act (a conversion order) it is not for the Tribunal to enquire in to the correctness of the decision of the Building Commission to issue the order. If either of the parties wish to challenge the correctness of the decision they must seek a review of the decision.

3. In these particular circumstances however the Tribunal considers the BCBRO is not clear as to its intent and it is therefore necessary to consider what regulated building service the BCBRO in respect of complaint 2 is seeking to remedy and how it is to be remedied.  Without understanding what the BCBRO is requiring the respondent to do the Tribunal cannot determine if the respondent has complied with the BCBRO.

4. The respondent says that the BCBRO applies only to the sliding door and it requires him to make it compliant with the BCA.

5. The applicant says the BCBRO must refer to the tiled alfresco floor as there would be no reason to include the reference to clause 3.1.2.3 if the only remedial work the applicant was required to do was in respect of the sliding door.  Clause 3.1.2.3. refers to surface water drainage (Exhibit 5).

6. The applicant says the BCBRO requires the respondent to remedy the alfresco floor because it does not comply with clause 3.1.2.3 referred to in the BCBRO.

   What does the BCBRO require the respondent to do?

7. The respondent's evidence is that at all times he understood the BCBRO to only refer to the master bedroom sliding door and that he was not required to complete any work to the tiled alfresco floor.

8. The original Proposed Building Remedy Order (Exhibit 6 page 65) was as follows:

   The respondent is to remedy the Master Bedroom sliding door and the Alfresco floor by the provision of works compliant with the requirements of the Building Code of Australia 2011 Volume 2 Clauses 3.1.2.3 and P2.2.2 including making good as necessary in a proper and proficient manner.

9. The Tribunal notes that an email from a compliance officer at the Building Commission to the building inspector dated 15 April 2016 (Exhibit 6 page 36) specifically refers to a change needed to the original Proposed Building Remedy Order to take into account the fact that the respondent did not carry out the tiling and says that the:

   New Respondent would be the Owner as they installed the tiles at a later date.

10. The email goes on to note that reference to the sliding door would need to remain in as water still enters through the door.

11. The response from the building inspector (Exhibit 6 page 36) is:

    The clarification provided regarding Alfresco area works actioned outside the scope of the Respondent is noted.  The revised wording for the PBRO is acceptable.

12. A revised Proposed Building Remedy Order was issued by the Building Commission on 15 April 2016 without reference to the alfresco area (Exhibit 6 page 29).

13. The Tribunal concludes from this that the reference to the alfresco floor was removed after the respondent provided evidence to the Building Commission that he had not tiled the alfresco floor and that the work had been performed by the original owners of the property.

14. On 5 May2016 an Investigation Report (Exhibit 6 page 5) stated:

    Mrs Stavel[e]y, the Complainant, lodged the complaint on 17 December 2015, and it was accepted on 7 January 2016.  A Proposed Building Remedy Order was issued on 24 March 2016.  Zenecon, the Respondent, provided their response dated 4 April 2016 confirming works relating to items 3 and 4 were completed by the previous owners and outside the initial building contract (folio 164).  A letter from the previous owners confirmed they undertook these works (folio 162).

    A revised Proposed Building Remedy Order (folio 186) was issued 15 April 2016 with item 3 amended and item 4 withdrawn (folio 162).

15. In a letter to the Building Commission dated 20 February 2017 (Exhibit 1 page 15) the respondent refers to a telephone conversation between the compliance officer and himself in which the compliance officer informed him that he was to ensure the waterproof barrier he had applied to the internal part of the door frame was functioning as required and that the remainder of the report regarding the tiling to the alfresco had been deemed not to be the builder's responsibility as the tiling had been installed by the previous owner.

16. In summary:

    •The respondent did not carry out a building service in respect of the 'tiled alfresco floor;

    •The Proposed Building Remedy Order was changed after this was brought to the attention of the Building Commission;

    •There is an apparent lack of rational in leaving in the reference to clause 3.1.2.3 without the reference to the alfresco floor;

    •The respondent alleges he relied on information from the Building Commission as to what the BCBRO meant; and

    •The applicant lodged a complaint against the original owners in the Building Commission in respect of the alfresco floor on 15 August 2016, that is after the BCBRO was issued.

17. The Tribunal is persuaded that the reference to clause 3.1.2.3 was left in the BCBRO by error and the Building Commission did not intend to issue an order requiring the respondent to carry out any remedial work to the tiled alfresco floor area.

18. The evidence from the respondent is that the master bedroom sliding door is compliant with clause P2.2.2.  This is not disputed by the applicant.

19. The Tribunal is accordingly not satisfied that the BCBRO has not been complied with and declines to revoke the BCBRO in respect of complaint 3 pursuant to s 51(2) of the BSCRA Act.

20. However if the intent of the Building Commission was to leave in the reference to clause 3.1.2.3 and for the respondent to carry out remedial work to the tiled floor the Tribunal makes the following observations and findings.

21. The Tribunal only has jurisdiction to exercise its discretion to revoke and issue a further building remedy order if it is satisfied the Building Remedy Order referred to in s 36(1)(a) of the BSCRA Act has not been complied with.

22. If the building remedy order has not been complied with the Tribunal can only make a new building remedy order pursuant to s 36(1)(a), (b) or (c) of the BSCRA Act in respect of a person who carried out a 'regulated building service'.

23. It is not contested that the respondent did not carry out a regulated building service in respect of the tiling.  It is agreed that the tiling was carried out by the original owners of the property.

24. The Tribunal does not have jurisdiction to make a building remedy order against the respondent in respect of the tiling as he is not the person who carried out the regulated building service in respect of the tiling.

25. The Tribunal would accordingly decline to revoke the BCBRO and make a Building Remedy Order referred to in s 36(1)(a), (b) or (c) of the BSCRA Act.

26. A further or alternative meaning of the BCBRO is that the respondent was to carry out remedial work to the concrete slab of the alfresco floor that is underneath the tiles.

27. Mr Martelli's evidence in respect of the sliding door and the alfresco area floor outside of the master bedroom sliding door is that the tiling in the alfresco area is level with the sliding door and slopes towards the house such that there is no adequate site drainage as required by clause 3.1.2.3.

28. No destructive testing has been carried out to the alfresco floor and Mr Martelli therefore could not say what the level of the concrete laid by the respondent is or whether it is sloped either to or from the sliding door or if it is sloped at all.

29. Mr Martelli noted that the level of the path at the side of the property appeared to be level with the height of the sliding door however the uncontested evidence of the respondent is that he did not lay that path.

30. The plans submitted to and approved by the City show the laid level of the concrete of the alfresco area as being level 0c which would suggest that the concrete was laid to that level.  However the Tribunal does not have the complete plans or approval documents that possibly provide explanation as to why the alfresco level was approved at that level.

31. The Tribunal does not know what the actual height of the concrete slab is.  However it is more likely than not that it was laid at level 0c and the concrete kept slightly below the door frames (letter from respondent to Building Commission 4 April 2016 Exhibit 6 page 52).

32. The explanatory note in clause 3.1.2.3 specifically allows for the finished ground levels to vary.  The Tribunal does not know what if any conditions the City imposed upon the respondent to ensure compliance with clause 3.1.2.3.

33. It is possible the City approved the height at level 0c on the basis of particular drainage being installed that would make the alfresco floor area otherwise compliant with the BCA.  It is accepted that the tiling, installed by the original owners of the property covered up drainage holes.

34. The Tribunal cannot not know whether the concrete floor of the alfresco area is compliant with the BCA because there is no evidence before the Tribunal as to whether the concrete below the tiling of the alfresco floor is compliant with the BCA.

35. The Tribunal is therefore left in the position of knowing the tiling that is not a building service carried out by the respondent is non-compliant but not whether the concrete slab under the tiling is non-compliant with the BCA.

36. As the Tribunal does not know if the concrete slab/alfresco floor is non­compliant with the BCA it is not satisfied that the BCBRO has not been complied with and declines to revoke the BCBRO.

1. The Tribunal will now consider the position should it have erred in concluding that the building service the respondent carried out in respect of the concrete slab/floor under the tiling:

   •is not non-compliant with the BCA; and

   •it was the intent of the BCBRO that the respondent should make it compliant with the BCA.

2. Section 51(2) of the BSCRA Act confers discretion upon the Tribunal. To exercise its discretion to revoke an order and make a building remedy order pursuant to s 36(1)(b) or (c) the Tribunal would need to be satisfied that:

   •the remedial work required by the order had not been satisfactorily completed; and

   •the remedial work and costs thereof sought by the applicant are both reasonable and necessary.

3. Where the claim is for compensation for unsatisfactory or faulty workmanship the amount to be paid to the complainant is that amount which would put the owner in the position they would have been had the work been performed correctly or properly.  Whilst this is not a claim for remedial work but for conversion of a 'work order' into a 'compensation order' the same principles apply.

4. The only qualification to that general principle is that the remedial work sought to be redone must be both necessary and reasonable.  What is necessary and reasonable and any particular case is a question of fact.[1]

   [1] Bellgrove V Eldridge [1954] HCA 36 (1954) 90 CLR 613 at [7].

5. The test of unreasonableness is only to be satisfied 'by fairly exceptional circumstances', for example where the innocent party was 'merely using a technical breach to secure an uncovenanted profit'.  Its unreasonableness may be established where the cost and complexity is out of proportion to the benefit to be obtained.[2]

   [2] Owners of Strata Plan No 74602 v Brookfield Australia Investments Ltd [2015] NSWSC 1916 at [39-40].

6. It could not be described as necessary for the respondent to pay the cost of removing the concrete and relaying it if another method of preventing water ingress into the master bedroom through the sliding door could be found that was less expensive and proportionate to the problem sought to be remedied.

7. The Tribunal notes that the applicant's expert specifically said at the time of his inspection that no moisture ingress was observed. (Exhibit 1 page 219).

8. There was evidence from the original owners of the property that they had had a problem with water ingress and that this had been resolved by the respondent installing a water proofing coating to the sliding door (Exhibit 6 page 54).

9. Mr Martelli said on a further inspection shortly before the hearing he saw evidence of water damage to the timber floor of the room (ts 30, 27 February 2018) however he also said that he could not say how or when the water damage he had observed had occurred.

10. Mr Kleyn gave evidence (ts 24, 27 February 2018) that the threshold of the door was approximately 20 millimetres above the floor level and that it was unlikely or impossible for water to enter through the sliding door.  Mr Kleyn was not challenged on this by the applicant.

11. Mr Martelli gave evidence that because of the properties coastal position you would get south­west driven rains hitting the door and water ponding in the area (ts 29, 27 February 2018).  He did not say that as constructed, there would be water ingress into the master bedroom.

12. A builder called by the applicant to give evidence as to the costs of the remedial work said that an alternative to removing all the tiles and the concrete and relaying it to remedy the problem of the alleged water ingress was to put a drain in in front of the door which would cost in the vicinity of $1,500.

13. At the hearing on 19 March 2018 the respondent provided costings by Mr Ballast for the installation of a drain in front of the master bedroom sliding door to prevent any water ingress.  His estimate was $1,795.25 (Exhibit 10).

14. Mr Martelli also provided a report (Exhibit 7) and gave evidence in respect of the scope of works which in his view included the removal of the master bedroom sliding door and associated work.

15. Mr Kleyn in his report dated 3 April 2018 (Exhibit 7) opined that whilst a drain was not covered by the deemed­to­comply provisions it was an option that would contribute with meeting the objectives of the Performance Requirements as a drain would be an effective method of preventing water ingress.

16. Neither Mr Kleyn nor Mr Ballast agreed with Mr Martelli that it would be necessary to remove the master bedroom sliding door frame as outlined in his report (Exhibit 7).

17. When Mr Martelli was asked by the Tribunal about the diagram of the door frame attached to his report he agreed that it did not represent the alfresco floor or indeed building work generally in Western Australia where, as in this instance, the door frame is installed in the cavity between the brickwork.

18. The Tribunal is not persuaded that the only way to remedy the problem of the non-compliance with clause 3.1.2.3 is to remove the tiling and concrete slab and relay them both.

19. Further the Tribunal does not accept the proposition put forward by Mr Martelli that if a drain were to be installed the master bedroom sliding door frame would need to be removed together with the consequential work as outlined by him in his report Exhibit 7.

20. The applicant seeks revocation of the BSBRO and for it to be replaced with a monetary order pursuant to s 36(1)(b) to enable her to have the tiles and concrete slab both relayed in a manner compliant with the BCA including at the respondent's cost, the provision of new tiles.

21. Whilst the BCBRO requires the respondent to remedy the master bedroom sliding door by the provision of works complaint with the requirements of the BCA and specifically clause 3.1.2.3 and P2.2.2 the Tribunal has discretion as to whether to revoke the order and replace it with a monetary order.

22. The Tribunal does not consider the removal of the tiles and the concrete slab claimed by the applicant as necessary or reasonable when any problems caused by possible water ingress can be remedied, on expert evidence, by the provision of a drain in front of the master bedroom sliding door.

23. The Tribunal is mindful that it is not for the Tribunal in this matter to determine if the respondent has carried out a regulated building service in a proper and proficient manner, that determination having been made by the Building Commission and not reviewed by the respondent.

24. However the Tribunal is now being asked to revoke the Building Commission's order and issue in its place a monetary order pursuant to s 36(1)(b) of the BSCRA Act. It is trite law that in determining any matter and issuing any order the Tribunal is required to give the matter independent consideration.

25. In the unusual circumstances of this matter it is appropriate for the Tribunal to give consideration as to what could be regarded as reasonable and necessary remedial work to rectify the problem (if any) caused by the failure (if any) to complete the building work in a manner compliant with the BCA.

26. The applicant has not sought to find a reasonable remedy that is proportionate to the problem she says occurs in the alfresco area due to the tiles not having the correct slope away from the master bedroom sliding door.

27. It could not be described as reasonable for the respondent to pay the cost sought by the applicant of installing a covering over the alfresco area that on her own evidence does not resolve the problem and is not intended to be permanent.

28. The Tribunal has evidence from three experts that a way of ensuring water cannot enter through the master bedroom sliding door is by the provision of a drain in front of the door.

29. The Tribunal finds that a reasonable remedy to prevent any moisture ingress through the master bedroom sliding door is by the provision of a drain in a manner put forward by Mr Ballast.

30. The Tribunal further finds that a reasonable cost of installing the drain is $1,795.25.

31. For the reasons set out above the Tribunal would decline to revoke the BCBRO in respect of complaint 3.

    Consent BRO complaint 3 ­ alfresco ceiling

32. The respondent does not dispute a monetary order pursuant to s 36(1)(b) of the BSCRA Act should be made. However he disputes the amount claimed by the applicant.

33. There is consensus between three of the four expert witnesses as to the scope of works required.

34. The Tribunal considered Mr Grainger may have underestimated the length of time the work would take in saying that he could have his employees complete it on their way home.

35. Mr Collicott's evidence was consistent with Mr Cornhill's however he had not attended the site or view the environment in which he needed to complete the work.

36. Mr Cornhill was the only expert who had actually attended the site and saw personally what was required.  His price was also one that he was providing to a lay customer not another builder.

37. Both Mr Cornhill and Mr Collicott considered it would take between 5 ­ 8 hours to complete the job and that there would be somewhere between $50 and $80 for materials.  There was some difference in their methodology in that Mr Cornhill considered you would need to remove the insulation and Mr Collicott thought that it could be moved to one side.

38. Mr Wells' quote was significantly different from the three other experts.  His explanation for the quote in respect of:

    •the number of tradesman or labourers required ;

    •the number of hours needed to complete the work;

    •the methodology proposed; and

    •the materials required

    is not accepted by the Tribunal as credible particularly having heard the evidence of the other experts as to the matters set out above. The Tribunal is satisfied on the balance of probabilities that:

    •it would take between 5 ­ 8 hours for one person to complete the work;

    •materials would be between $50 and $80;

    •the cost for labourers to do this work is between $60 and $65 an hour; and

    •some allowance for travel time should be made.

39. For the above reasons the Tribunal considers a fair and reasonable cost to complete the work required by complaint 3 of the Consent BRO is $665 inclusive of GST.

40. The Tribunal revokes complaint 3 of the Consent BRO. Pursuant to s 36(1)(b) of the BSCRA Act the respondent is to pay the applicant the sum of $665 within 14 days of the date of this order in satisfaction of complaint 3 relating to the alfresco ceiling.

    Consent BRO complaint 4 - exhaust fans

41. The applicant maintains that the Consent BRO requires the respondent to flume all the fans to the external air and further that they are required to be flumed to the external air to be complaint with the BCA.  This is denied by the respondent.

42. As the Tribunal said earlier it is not for the Tribunal to determine whether the work of the respondent was carried out in a proper or proficient manner or was faulty or unsatisfactory.  It is therefore unnecessary to determine if the exhaust fans need to be flumed in the manner put forward by the applicant to be compliant with the BCA. 

43. The Consent BRO does not require compliance with the BCA nor does it nominate how many exhaust fans need to be remedied.

44. The evidence of the respondent is that some exhaust fans had been originally connected to fluming and the external air and had been disconnected when the original owner had work carried out.

45. The respondent said that he agreed to do the remedial work as set out in the Consent BRO even though he considered he was not liable to do so because it was a small job.

46. Mr Martelli's first report Exhibit 1 page 242 reads:

    Complaint

    Exhaust fans not flumed to external air.

    Observations and comments

    Inspection of the roof space identified that the exhaust fans have not been connected to the external flue. This is contrary the building licence conditions and the Building Code of Australia part 3.8.5.2 …

    Action recommended

    The respondent is to ensure that the remedial works are completed in a proper and proficient manner making good all affected surfaces.

    (Tribunal emphasis)

47. There is a change in Mr Martelli's observations and comments and recommendation in his second report.  Mr Martelli says the work has not been completed because only one exhaust fan has been flumed.  His recommendation then is that all exhaust fans be flumed in accordance with the local authority's approval authority, which is to external air.

48. The order made by the Tribunal was following the first report not the second.

49. The Consent BRO does not refer to compliance with the BCA when other orders in the Consent BRO do.

50. The Tribunal does not consider the order should be read in the manner put forward by the applicant.

51. The Tribunal finds the ordinary reading of the Consent BRO to mean that those exhaust fans for which there is fluming are to be connected to the fluming.

52. There is no requirement in the order for the purchase of or installation of fluming or connectors to fluming.

53. It is not disputed that the exhaust fans for which there is fluming have been connected to the flumes.

54. The Tribunal is not satisfied that the respondent has not complied with the Consent BRO in respect of complaint 4 and declines to revoke the order.

    Consent BRO complaint 5 ­ alfresco wall not adequately tied

55. The applicant submits that the certificate or letter from Mr Bradley (Exhibit 2 page 246) does not constitute certification that the work by the respondent was adequate or did not in any event require further work to be completed for the alfresco wall to be structurally sound.

56. Mr Martelli considered Mr Bradley's letter certification (ts 68, 27 February 2018) but did not consider it satisfactory because the respondent had not obtained approval from the local authority (City).

57. The Tribunal finds that the letter from Mr Bradley does constitute certification that the alfresco ceiling is structurally sound.

58. The Tribunal finds that as the alfresco wall is structurally sound it is unnecessary to perform further works that might make it technically compliant with the BCA but would not make any performance difference.

59. The Tribunal has previously in this decision referred to the fact that the power under s 51 to revoke an order if it finds the order has not been complied with is discretionary.

60. The Tribunal finds the work to make the alfresco wall technically complaint with the BCA is not necessary or reasonable[3] and declines to exercise its discretion to revoke the Consent BRO with respect to complaint 5.

    Consent BRO complaint 6 ­ installation of clad roofing not complaint with the manufacturer's recommendations.

    [3] Owners of Strata Plan No 74602 v Brookfield Australia Investments Ltd [2015] NSWSC 1916 at [39-40].

61. It is not disputed that the guttering on the roof was caused to be altered by the original owners.

62. The applicant says that the Consent BRO in respect of this item requires the respondent to prevent water ingress.

63. The Tribunal does not accept this interpretation of the Consent BRO.  The wording of the Consent BRO is quite specific.  It requires quite detailed action to be taken by the respondent.

64. The respondent has done what is required of him by the Consent BRO. The fact that what was required by the Consent BRO and his compliance with the Consent BRO may not prevent backflow from the gutter into the eaves filling is not the responsibility of the respondent.

65. The experts at hearing all cast doubt on the possibility that the work required in the Consent BRO could ever prevent backflow from the gutter into the eaves filling.

66. The applicant consented to the Consent BRO in its current form.  She now complains it did not do what she thought it would do.  It is not for this Tribunal to find an alternative solution to the problem of backflow from the gutter into the eaves filling.

67. The Tribunal does not know if the respondent would have consented to an order that required him to do anything other than to install profiled impregnated foam at the fascia of the front elevation of the roof.  His evidence was that he would not have.

68. In these circumstances it is not for this Tribunal to impose on the respondent an order that requires him to do work that he had not agreed to do because the applicant is not satisfied with the results of the agreed work.

69. For the reasons set out above the Tribunal is not satisfied that the Consent BRO with respect to the installation of clad roofing has not been complied with and declines to revoke the Consent BRO.

    Consent order BRO complaint 7 ­ external paving/concrete

70. Mr Martelli said the Consent BRO had not been complied with in respect of the external paving because he considered the 'front elevation' to include the return wall to the office.  He conceded that if it did not then the Consent BRO had been complied with.

71. The Tribunal has viewed the plans of the house and heard from the applicant and respondent and is of the view that the 'front elevation' does not include the return wall to the office.

72. The Tribunal is not satisfied the respondent has not complied with the Consent BRO with respect to the external paving and declines to revoke the Consent BRO.

Costs of the proceedings

1. The applicant seeks an order for the costs associated with her engagement of experts to provide reports and attend at the hearing to give evidence.

2. It is not clear if the respondent is also seeking his costs but the Tribunal will proceed on the basis that he is.

3. Section 49 of the BSCRA Act provides for a broad discretion. Subsection (2) provides some limitation on the building commission in awarding costs for the services of a representative of a party but this does not apply to the Tribunal.

4. Under the State Administrative Tribunal Act 2004 (WA) (SAT Act) the general position is that each party bear its own costs, although there is power to award costs under s 87 of the SAT Act. This discretion is, in general terms, utilised where a party has behaved unreasonably in the conduct of its case so as to lead the other party to incur unnecessary costs.

5. In Hoskins and Daniel Vinci T/A D'Vinci Contracting[4] Senior Member Raymond determined that s 49 of the BSCRA Act was a provision that effectively removed the starting position that there should be no award of costs provided by s 87 of the SAT Act. The Senior Member went on to consider how s 49 of the BSCRA Act should be understood and determined that it should not be understood as providing that costs will generally follow the result, but that it should be regarded as entirely neutral in effect.

   [4] Hoskins and Daniel Vinci T/As D'Vinci Contracting [2011] WASAT 188 at [14]

6. Section 49(7) of the BSCRA Act provides that s 49 does not limit the powers of the Tribunal under Pt 4 Div 5. The effect of s 49 of the BSCRA Act means that the BSCRA Act does not affect the general position as provided in s 87 of the SAT Act.[5]

   [5] Barnett and Barrier Reef Pools (WA) Pty Ltd [2016] WASAT 50

7. The Tribunal is satisfied that the proper construction of s 49 of the BSCRA Act is that it does provide for a different starting point to that provided by s 87 of the SAT Act. But does not result in a general rule that 'costs follow the event' as the discretion provided must be exercised having regard to the objectives and procedures of the Tribunal.

8. In this matter the applicant has been almost entirely unsuccessful.  There was a real dispute between the parties both as to liability and quantum.

9. The underlying consideration for the Tribunal in determining the applicant's application for costs, as it is with all cost applications, is whether the justice of the case supports moving away from the general position that each party should bear their own costs.

10. Both parties in this matter have expended money on experts, although the Tribunal acknowledges that the applicant has by far incurred the greater expense.

11. Both parties have also both had to spend a considerable amount of their own time on the matter in the Building Commission and in the Tribunal.

12. Having considered all aspects of the applicant and respondent's positions and management of the case by them both the Tribunal considers the justice of the case does not support moving away from the general position that each party should bear their own costs.

1. The Tribunal declines to make any order for costs.

Orders

1.The Tribunal revokes complaint 3 of the Consent Building Remedy Order.  

2.Pursuant to s 36(1)(b) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) the respondent is to pay the applicant the sum of $665 within 14 days of the date of this order in satisfaction of complaint 3 relating to the alfresco ceiling.

3.Applications CC873 of 2017 and CC521 of 2017 are otherwise dismissed.

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

MS P LE MIERE, MEMBER

28 MAY 2018