Glasson and McLean [2024] WASAT 96

Tom French |  Penny Bond |  Lara Solomon

Key takeouts

• The failure of building works to meet Australian Standards remains an important consideration when determining whether works are ‘faulty or unsatisfactory’ under the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act).
• Complainants are not entitled to elect between the type of building remedy order (i.e. an order for rectification or compensation).
• In deciding whether an order for rectification or an order for compensation is appropriate, the Tribunal will consider the parties’ relationship, the owners’ confidence in the builder, whether the builder has refused to rectify or has previously unsuccessfully attempted to rectify, and whether the owner will deny the builder access to the property.

Facts

Glasson engaged McLean, a carpenter, to undertake building works at her house.

Glasson made a complaint to the Building Commissioner under the BSCRA Act regarding McLean’s installation of stumps, the reinstatement of the sub-floor, and cracks in the concrete flooring.

The Building Commissioner made a building remedy order (BRO) under the BSCRA Act. On 26 March 2024, Glasson applied to the State Administrative Tribunal (Tribunal) for a review of the BRO.

Legislative framework

The BSCRA Act deals with complaints about building services and home building work contract matters.

Any person whose interests have been adversely affected by the regulated building service can make a complaint to the Building Commissioner about a regulated building service not being carried out properly or proficiently, or being faulty or unsatisfactory.

The Building Commissioner may make a BRO requiring:

1. the builder to undertake specified rectification of the building service (often called a ‘rectification order’);
2. the builder to pay the costs of remedying the building service (often called a ‘monetary order’); or
3. the builder to pay compensation to the complainant (often called a ‘compensation order’).

The Building Commissioner may make a BRO to the maximum value of $100,000. If the estimated value of the BRO exceeds this amount, the Building Commissioner will refer the complaint to the Tribunal, which has jurisdiction to make a BRO to the maximum value of $500,000.

If the Building Commissioner makes a BRO (as in this case), any person aggrieved by the BRO may apply to the Tribunal for review of the BRO under s 57 of the BSCRA Act.

Decision

In deciding whether a monetary order was appropriate (as opposed to a rectification order), the Tribunal noted parties have no right to elect between a rectification order or monetary order, however, the Tribunal should consider:

1. the current relationship between the parties (including whether there has been an irretrievable breakdown in the relationship between the parties);
2. whether the relationship is such that, if a BRO is made, the order will be workable;
3. whether the owner has lost confidence in the workmanship and skill of the builder;
4. whether the builder has previously unsuccessfully attempted to remedy the defect;
5. whether the builder has refused to rectify the works; and
6. whether there is evidence the owner will deny the builder access to the property to carry out rectification works (if there is such evidence, it may be appropriate to limit the monetary order to the amount that it would have cost the builder to fix the work).

Ultimately, the Tribunal was satisfied that the stumps were faulty or unsatisfactory as they did not meet Australian Standards. It was appropriate to make a monetary BRO because the relationship between the parties had broken down. Glasson had advised she would refuse access to the property and McLean’s evidence suggested he could not carry out the rectification work in any event.

As to the amount awarded to Glasson, the Tribunal considered the quote Glasson provided was ‘very inflated’, did not provide a breakdown of costs, and Glasson did not provide any further evidence from the third party company that provided the quote. The Tribunal considered McLean’s quotation was ‘reasonable’, and therefore awarded Glasson that amount.