Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 11(1)(d), s 36(1)(a), s 36(1)(b), s 38, s 41(2)(d)(i), s 43(1), s 43(1)(a), s 51, s 51(2)(a)

Home Building Contracts Act 1991 (WA), Pt 2

Brooks and Gransden Building Company Pty Ltd [No 2] [2021] WASAT 86

Deshmukh and Distinctive Building Services Pty Ltd [2024] WASAT 15

Electricity Generation and Retail Corporation t/as Synergy v EIT Kwinana Partner Pty Ltd [2022] WASCA 3

Gemmill Homes Pty Ltd v Sanders [2018] WASC 179

Owners of Island Apartments Strata Plan 52597 and Pindan Pty Ltd [2018] WASAT 2

1. Proceedings CC 8 of 2024, CC 9 of 2024, CC 10 of 2024, CC 124 of 2024 and CC 446 of 2024 relate to building works (decking works and renovation works) performed by Matthew Blackwell at a home owned by Owen Booy at 7 Emilia Street, Coolbellup, (the home) between July and October 2022.
2. CC 8 of 2024 is a HBWC complaint made by Mr Blackwell that Mr Booy failed to pay in full or in part a number of invoices for decking works and the renovation works, lodged with the Building Commissioner on 17 August 2023. This HBWC complaint comprises five complaint items. The Building Commissioner referred these five complaint items to the Tribunal.[1] Mr Blackwell seeks orders from the Tribunal that Mr Booy is to pay him the monies he says he is owed plus interest.
3. CC 9 of 2024 is a building services complaint made by Mr Booy that Mr Blackwell failed to complete the decking works in accordance with a contract and that the renovation works were defective. The complaint was lodged with the Building Commissioner on 17 September 2023. This building services complaint comprises four complaint items. The Building Commissioner referred all four complaint items to the Tribunal. Mr Booy seeks orders from the Tribunal that Mr Blackwell compensate him for the cost of completing the decking works, loss of rental income due to the defective renovation works and the cost of engaging a building expert to inspect and report on the renovation works.[2]
4. CC 10 of 2024 is an application made by Mr Booy alleging that Mr Blackwell failed to complete works required under Building Remedy Order O2023­27, made by a delegate of the Building Commissioner, to remedy the decking works, to remedy the renovation works and to repair damage caused by Mr Blackwell's contractor to the driveway of the home.
5. CC 124 of 2024 is a building services complaint made by Mr Booy that the renovation works were defective. This building services complaint comprises eight complaint items. The Building Commissioner referred six of these complaint items to the Tribunal. Mr Booy seeks orders from the Tribunal that Mr Blackwell compensate him for the cost of remedying the renovation works, the cost of engaging a building expert to inspect and report on the renovation works and loss of income due to attending to this complaint.
6. CC 446 of 2024 is a HBWC complaint made by Mr Blackwell that Mr Booy failed to pay in full or in part a number of invoices for the decking works and the renovation works. This HBWC comprised one complaint item, however, the Building Commissioner separated this complaint item into two parts and referred two complaint items to the Tribunal. Mr Blackwell seeks orders from the Tribunal that Mr Booy pay him the monies he says he is owed under the contract plus interest.[3]
7. In accordance with an order made by the Tribunal on 7 April 2025 these proceedings are to remain as separate proceedings but are to be heard and determined together and evidence in one proceeding is to be evidence in each other proceeding.
8. The proceedings were heard concurrently at a final hearings on 7, 8 and 9 April 2025.

1. A Hearing Book (HB) consisting of the documents lodged by the parties in support of their claims as well as submissions lodged by the parties is before the Tribunal. That portion of the HB comprising the documents lodged by the parties was, with the consent of the parties, admitted into evidence by the Tribunal and was marked Exhibit 1. Exhibit 1 totalled 996 pages.
2. Oral evidence was given at the final hearing by Mr Gary Chamberlain, Mr Booy and Mr Blackwell. Each party was given the opportunity to cross-examine the other's witness(es).

1. The following facts are either agreed or are not the subject of controversy in the proceedings, and we are satisfied and find that:

(1) In early May 2022 Mr Booy and Mr Blackwell formed a friendship when they met by chance at a Bunnings store.

(2) In mid-May 2022 Mr Booy was experiencing difficulties in engaging trades to perform building work at his home and he asked Mr Blackwell if he was interested in constructing a complete deck with jarrah decking boards at the home. At that time Mr Blackwell was unemployed and so was open to doing work for Mr Booy.

(3) Mr Blackwell originally provided Mr Booy with a quote for the supply of a complete deck inclusive of jarrah decking boards. Over time, however, Mr Booy changed the proposed scope of works to exclude the supply of jarrah decking boards as he believed he could source jarrah boards for a lower price than Mr Blackwell could.

(4) On 24 May 2022 Mr Blackwell provided Mr Booy with a quote for the supply and installation of a deck exclusive of jarrah decking boards. This quote was titled 'Jarrah Decking Job As Discussed' and consisted of a number of briefly described items with a total price of $6,133.24. Both parties accept that under this quote Mr Blackwell was not offering to supply the decking boards and these were to be sourced and supplied by Mr Booy. However, importantly for what happened later, the quote is silent as to whether Mr Blackwell was offering under this quote to lay the decking boards that were to be supplied by Mr Booy.

(5) On or shortly after 24 May 2022, through Mr Booy's verbal acceptance of Mr Blackwell's written quote dated 24 May 2022, Mr Blackwell and Mr Booy entered into a contract for the supply and installation of a deck exclusive of jarrah decking boards (the original contract).

(6) In June 2022 Mr Booy asked Mr Blackwell if he was interested in renovating a partially enclosed patio at the rear of the home. On 26 June 2022 Mr Blackwell provided Mr Booy with a quote titled 'Rear Room Renovation' for the price of $3,589.19. Again, importantly for what happened later, the quote is silent as to whether Mr Blackwell was offering to renovate the enclosed patio area to the standard of a habitable room or to the standard of an uninhabited room. On or shortly after 26 June 2022 Mr Blackwell and Mr Booy agreed to vary the original contract through Mr Booy's verbal acceptance of Mr Blackwell's written quote dated 26 June 2022, so that in addition to the supply and installation of a deck, exclusive of jarrah decking boards, Mr Blackwell was to renovate a partially enclosed patio at the rear of the home (the amended contract).

(7) On 19 July 2022 Mr Booy told Mr Blackwell he wanted to increase the size of the deck that was to be supplied and installed by Mr Blackwell. On that same day Mr Blackwell verbally agreed to vary the amended contract to effectively double the size of the deck to around 54m2. Mr Blackwell's invoice dated 9 August 2022 titled 'Extra Addition to Decking' in the amount of $3,260.24 is for this variation.

(8) On or around 9 August 2022 Mr Booy paid Mr Blackwell $4,000. On another date Mr Booy paid Mr Blackwell $800.

(9) On 2 September 2022 Mr Blackwell issued Mr Booy with an invoice titled 'Rear Room And Deck Extras' in the amount of $836.07. This invoice for 'Extras' along with the variation to increase the size of the decking works brought the total contract price to $13,818.74, of which $9,018.74 remains outstanding.

(10) Between 19 July 2022 and 20 October 2022 Mr Blackwell performed works at the home in furtherance of the amended contract. These works consisted of supplying and installing a deck frame and performing renovation work to the enclosed rear patio area of the home.

(11) On 20 October 2022 Mr Booy emailed Mr Blackwell to inquire when he would attend the home to 'finish off the decking', that is, to inquire when Mr Blackwell would attend the home to lay the decking boards supplied by Mr Booy on the deck frame. Mr Blackwell replied to Mr Booy's email on the same day by stating 'I will not be laying your decking'. It was around this time that the relationship between Mr Blackwell and Mr Booy changed from friendship to hostility.

(12) On or about 30 October 2022 Mr Booy engaged a third party, BGH Enterprises Pty Ltd (BGH), to lay the boards on the deck frame. Mr Booy paid BGH $3,000 plus GST ($3,300 in total), consisting of $2,300 for labour and $700 for materials such as additional timbers and stainless-steel decking screws.

(13) In early 2023 Mr Booy engaged Mr Chamberlain, a registered builder, to inspect the works performed by Mr Blackwell.

(14) On 16 March 2023 Mr Chamberlain produced his first report on the renovation works performed by Mr Blackwell at the home (the 16 March 2023 report).

(15) On 7 July 2023 the Building Commissioner's delegate, with Mr Blackwell's consent, issued 'Building Remedy Order 02023­27 Building Service at 7 Emilia St, Coolbellup' (BRO).

(16) On 7 August 2023 Mr Blackwell lodged with the Building Commissioner a complaint containing five complaint items relating to monies not paid by Mr Booy for the decking works. The total sought by Mr Blackwell at that time was $9,920.61 plus interest. On 8 January 2024 the Building Commissioner's delegate pursuant to s 11(1)(d) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) referred the five complaint items to the Tribunal, which gave it matter number CC 8 of 2024.

(17) Between 7 July 2023 and 31 August 2023 Mr Blackwell performed some remedial works at the home in accordance with the BRO.

(18) On 1 September 2023 Mr Booy lodged with the Building Commissioner a complaint that Mr Blackwell had failed to comply with the BRO. On 5 January 2024 pursuant to s 51 of BSCRA Act the Building Commissioner transferred Mr Booy's complaint to the Tribunal, which gave it matter number CC 10 of 2024, and which transfer was consented to by the Tribunal on 23 January 2024.

(19) On 17 October 2023 Mr Chamberlain produced his second report, which is an assessment of the remedial works performed by Mr Blackwell in accordance with the BRO (the 17 October 2023 report).

(20) On 17 September 2023 Mr Booy lodged with the Building Commissioner a complaint containing four complaint items relating to loss of rent incurred as a result of Mr Blackwell's failure to complete the decking works in accordance with the contract and that the renovation works were defective. Mr Booy seeks compensation from Mr Blackwell for the cost of completing the decking works, loss of rental income due to the defective renovation works and the cost of engaging a building expert to inspect and report on the renovation works. On 8 January 2024 the Building Commissioner's delegate pursuant to s 11(1)(d) of the BSCRA Act referred Mr Booy's four complaint items to the Tribunal, which gave it matter number CC 9 of 2024.

(21) On 23 January 2024 Mr Booy lodged with the Building Commissioner a complaint containing eight complaint items, seven of which related to the renovation works and one which related to a claim for lost income and expenses in attending to a claim lodged by Mr Blackwell in the Fremantle Magistrates Court. Mr Booy seeks compensation from Mr Blackwell for the cost of remedying the renovation works, the cost of engaging a building expert to inspect and report on the renovation works and loss of income due to attending to this complaint. On 25 February 2024 the Building Commissioner's delegate pursuant to s 11(1)(d) of the BSCRA Act referred six of Mr Booy's eight complaint items to the Tribunal, which gave it matter number CC 124 of 2024.

(22) On 2 July 2024 Mr Blackwell lodged with the Building Commissioner a complaint containing one complaint item which related to monies not paid by Mr Booy for the decking works and the renovation works plus interest. On 9 July 2024 the Building Commissioner's delegate pursuant to s 11(1)(d) of the BSCRA Act referred two complaint items (one item relating to the claim for unpaid invoices and another as a claim for interest) to the Tribunal, which gave it matter number CC 446 of 2024.

(23) Between 1 September 2023 and 16 September 2024 Mr Blackwell performed some further remedial works in accordance with the BRO.

(24) On 16 September 2024 Mr Chamberlain produced his third report which is an assessment of these further remedial works performed by Mr Blackwell in accordance with the BRO (the 16 September 2024 report).

1. The oral evidence given by Mr Blackwell and Mr Booy, on which they are agreed, is that:

(1) Mr Blackwell did provide Mr Booy with construction drawings for the decking works but he did not provide any construction drawings for the renovation works;

(2) Mr Blackwell is not a registered builder and did not obtain a building permit from the local authority for either the decking works or the renovation works; and

(3) Mr Blackwell did not obtain indemnity insurance for the works and given the contract was under $20,000 he was not required to obtain such insurance.

1. On the basis of the undisputed facts set out above we are satisfied and find there is a single (amended) contract between Mr Booy and Mr Blackwell under which Mr Blackwell was to perform both decking works and renovation works on the enclosed rear patio of the home for the total contract price of $13,818.74, of which $9,018.74 remains outstanding.

1. The Tribunal has power under s 43(1)(a) of BSCRA Act to make a HBWC remedy order.
2. Section 43(1) of the BSCRA Act provides:

(1) If the Building Commissioner refers a HBWC complaint to the State Administrative Tribunal, the Tribunal may -

(a) if satisfied that the order is justified, make a HBWC remedy order; or

1. Under s 41(2)(d)(i) of the BSCRA Act the Tribunal may make a HBWC remedy order that a person pay specified compensation for loss, damage or detriment caused by a beach of the contact or of a provision of the Home Building Contracts Act 1991 (WA) (HBC Act), Pt 2.
2. The Tribunal (when constituted by Senior Member Aitken) considered the proper construction of the discretion conferred by s 43(1) of the BSCRA Act in Deshmukh and Distinctive Building Services Pty Ltd [2024] WASAT 15 (Deshmukh). The Senior Member in that decision said at [59] - [60]:
   1. In my view the considerations concerning whether a HBWC remedy order is justified to resolve a HBWC complaint that a respondent has breached a home building work contract are:

(1) Is there a valid home building work contract between the applicant and the respondent to the proceeding?

(3) Has the respondent breached the relevant terms of the contract?

(4) Has the applicant suffered loss, damage, or detriment which can be addressed by a HBWC remedy order?

1. In my view, if the Tribunal is satisfied that there is a valid home building work contract between the applicant and the respondent, and that the respondent has breached a relevant term of the contract which can be addressed by way of a HBWC remedy order then the Tribunal is required to make a HBWC remedy order. It then has a discretion regarding the HBWC remedy order it will make under the provisions of s 41(2) of the BSCRA Act.

1. The Tribunal in these reasons respectfully adopts:

(1) The principles applicable to the determination of a building service complaint set out by the Tribunal in Owners of Island Apartments Strata Plan 52597 and Pindan Pty Ltd [2018] WASAT 2 (Pindan Pty Ltd) at [27] - [35]:

1. The Tribunal has, pursuant to s 38 of the BSCRA Act power to make a building remedy order if it is satisfied that the regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory.
2. 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.
3. The building contract may be relevant to the proper and proficient as it 'defines what the builder was required to do, which informs the issue of workmanship'.
4. 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.
5. Manufacturers recommendations may be departed from if the builder otherwise acted in a proper and proficient manner. A product which is performing well, and is suitable for its application, cannot automatically be said to be faulty or unsatisfactory.
6. 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.
7. Builders are not compelled to search for and install superior products over and above what is adequate for the intended purpose.
8. Where the issue is not contractual, the Tribunal should be cautious in regards to ordering remedial work to be undertaken unless the applicant has demonstrated a genuine adverse effect by reason of the building work in question.
9. A building service that complies with the BCA will not be found by the Tribunal to be faulty or unsatisfactory or to not to have been carried out in a proper and proficient manner except in exceptional circumstances.

(2) The statements of Smith AJ (as her Honour then was) as to the proper construction of s 38 of the BSCRA Act in Gemmill Homes Pty Ltd v Sanders [2018] WASC 179 (Gemmill Homes) at [96], [102], [103], [106] - [111], [125] - [129], [133] and [134] as these are summarised in Deshmukh at [46] to [48]:

1. Section 38 of the BSCRA Act gives the Tribunal the power to deal with a building service complaint referred to it by the Building Commissioner.
2. In Gemmill Homes at [134], Smith AJ stated that if the Tribunal forms the opinion (is satisfied) under s 38(1)(a) of the BSCRA Act that the regulated building service which is the subject of a building service complaint has not been carried out in a proper and proficient manner or is faulty or unsatisfactory (the requisite opinion), the Tribunal is required to make a building remedy order (emphasis added). The Tribunal then has a discretion regarding a building remedy order it will make under the provisions of s 36(1) of the BSCRA Act. If the Tribunal does not form the requisite opinion, then, under s 38(1)(b) of the BSCRA Act, it may decline to make a building remedy order.
3. In the case of a HBWC complaint, s 43(1)(a) of the BSCRA Act provides that the Tribunal may make a HBWC remedy order if it forms the opinion (is satisfied) that a HBWC remedy order is justified. The Tribunal then has a discretion regarding the HBWC order it will make under s 41(2) of the BSCRA Act. If the Tribunal does not form the opinion that a HBWC remedy order is justified then under s 43(1)(b) of the BSCRA Act it may decline to make the order (Original emphasis)

(3) The observations as to the differing natures of building remedy orders under s 36(1)(a) and s 36(1)(b) of the BSCRA Act made by the Tribunal in Brooks and Gransden Building Company Pty Ltd [No 2] [2021] WASAT 86 (Brooks) at [14] to [17]:

1. The nature of the BRO is an important consideration. The reason for this is because there is significant difference between a BRO made under s 36(1)(a) and that made under s 36(1)(b) or s 36(1)(c) of the BSCRA Act. The difference is that there are advantages to the owners if the Tribunal makes an order under s 36(1)(a) which are not available under s 36(1)(b) or s 36(1)(c). The advantages include that an order under s 36(1)(a) provides the owners with the added protection that if the remedial work is not performed, or is performed in a faulty or unsatisfactory manner, the owners may seek an order under s 51 of the BSCRA Act which effectively allows for the 'conversion' of the order requiring remedial work to be performed to a monetary order reflecting the costs of a third party performing that work.
2. A further advantage of an order under s 36(1)(a) is that any ambiguity which may arise in relation to the issue of liability if the remedial work is itself faulty or unsatisfactory is avoided.
3. Finally, an order under s 36(1)(a) may be advantageous because third party contractors are often reluctant to perform remedial works in respect of another builder's underlying work. It is therefore, often difficult to obtain reliable evidence on the costing of remedial work on a third party basis, and if that costing is provided by an independent expert, the expert is not available to do the remedial work (see Sanders and Gemmill Homes Pty Ltd [2017] WASAT 41 (Sanders and Gemmill) at [30] - [33]).
4. There is also an advantage to the builder if the Tribunal makes an order under s 36(1)(a) which is not available under s 36(1)(b) and 36(1)(c) of the BSCRA Act. The builder can usually carry out remedial work at a cost less than would be charged by a third party contractor who would usually charge a premium for doing that work (see Nelson v Mardesic (1998) 22 SR (WA) 42 at [46].

1. The questions we are required to determine in this matter are:

(1) With respect to CC 8 of 2024 and CC 446 of 2024, which are HBWC complaints made by Mr Blackwell:

(a) Is Mr Booy in breach of the amended contract by failing to pay all monies owed by him to Mr Blackwell and, if so, what amount should he pay?

(b) Should the Tribunal make a HBWC order requiring Mr Booy to pay these monies to Mr Blackwell?

(c) Is Mr Booy required to pay interest on any monies owed by him to Mr Blackwell?

(2) With respect to CC 9 of 2024, which is a building services complaint made by Mr Booy about the decking works and the renovation works:

(a) Are the decking works and the renovation works a 'regulated building service' under the BSCRA Act?

(b) If so, were either the decking works or the renovation works not carried out in a proper or proficient manner or are faulty or unsatisfactory?

(c) If the decking works or the renovation works are a regulated building service which are not carried out in a proper or proficient manner or are faulty or unsatisfactory, whether the Tribunal should make a building remedy order with respect to the decking works or renovation works?

(d) If the answer is that the Tribunal should make a building remedy order with respect to the decking works or renovation works, what is the appropriate order?

(e) If a building remedy order should be made, has Mr Booy suffered loss (rent and income)? If so, is Mr Booy to be compensated for that loss?

(3) With respect to CC 10 of 2024, which is an allegation made by Mr Booy that Mr Blackwell failed to complete works required under BRO 0203-27:

(a) What were the remedial works Mr Blackwell was required to perform pursuant to the BRO?

(b) Has Mr Blackwell complied with the BRO by completing the required remedial work?

(c) If Mr Blackwell has not complied with the BRO, should the Tribunal exercise its discretion under s 51 of BSCRA Act and revoke the BRO and make a building remedy order pursuant to s 36(1)(b) or (c)?

(4) With respect to CC 124 of 2024, which is a building services complaint made by Mr Booy about the renovation works on the enclosed rear patio area:

(a) Did the amended contract require Mr Blackwell to perform the renovation works to the standard of a habitable room?

(b) Were the renovation works not carried out in a proper or proficient manner or are faulty or unsatisfactory?

(c) If the renovation works are faulty or satisfactory, whether the Tribunal should make a building remedy order?

(d) If the answer is that the Tribunal should make a building remedy order with respect to the renovation works, what is the appropriate order including:

(i) Has Mr Booy suffered loss (rent and income)? If so, is Mr Booy to be compensated for that loss?

1. The essence of the dispute between Mr Blackwell and Mr Booy in this proceeding is whether under the amended contract Mr Blackwell was required to:

(b) renovate the rear enclosed patio to the standard of a bedroom which is a habitable room.

1. With respect to the decking works, Mr Blackwell contends that he was required to construct a frame on which Mr Booy was to lay decking boards that Mr Booy was to himself supply and that as it is not in dispute that he has completed the decking works, that Mr Booy is required under the contract to pay him the balance of the contract price for the decking works, which is $9,018.74 plus interest at the rate of 10% per annum.
2. Mr Booy contends that under the amended contract Mr Blackwell was required to:

(a) construct a frame and then on that frame lay the decking boards that Mr Booy was to himself supply; and

(b) renovate the rear enclosed patio area to the standard of a habitable room, as he had told Mr Blackwell at the time he requested Mr Blackwell's quote that the enclosed patio area was to be used as a bedroom which he would then rent out for profit.

1. With respect to the decking works, Mr Booy accepts that the contract price for the decking works is $9,393.48, which is the sum of the quote # 1002 in the amount of $6,133.24 and invoice # 0193 in the amount of $3,260.24. Mr Booy then says on or around 9 August 2022 he paid Mr Blackwell $4,000 for the decking works and then on or around 30 October 2022, as Mr Blackwell had refused to lay the decking boards, he paid $3,300 to a third-party contractor, BGH Enterprises Pty Ltd, to lay the decking boards. Mr Booy contends that both these amounts should be offset against the contract price of $9,393.48 which means that he owes Mr Blackwell $2,093.48 for the decking works.[4]

1. As there is no dispute about these matters, we are satisfied and find that the contract price for the decking works is $9,393.48, that Mr Booy paid Mr Blackwell $4,000 on or around 9 August 2022 and that the reasonable cost of engaging a third-party contractor to lay the decking boards is $3,300.
2. The real question the Tribunal needs to determine is whether it is a term of the contract that Mr Blackwell was to lay the decking boards sourced by Mr Booy on the frame.
3. Mr Booy in his oral evidence said that Mr Blackwell through his 24 May 2022 quote offered to lay the decking boards. Mr Booy says this is clear for three reasons.
4. First, when the 24 May 2022 quote is compared to the earlier quote to supply a deck complete with jarrah decking boards it can be seen the 24 May 2022 quote was varied only to the extent of excluding the supply of boards. That is, that Mr Blackwell should therefore be understood in the 24 May 2022, as in the earlier quote, to be offering to lay the boards.
5. Second, Mr Booy said that the description Mr Blackwell gave to the 24 May 2022 quote 'Jarrah Decking Job As Discussed' makes plain that Mr Blackwell is offering to supply a completed deck to Mr Booy and is not offering to supply only a deck frame.
6. Third, Mr Booy says that the only reason that Mr Blackwell could have for offering to supply the fixings for the boards is because he was offering to use the fixings himself to lay the boards.
7. Mr Blackwell in his oral evidence said that it was clear that by excluding the supply of decking boards from his quote dated 24 May 2022 that he was not offering to lay the boards that were to be supplied by Mr Booy. Mr Blackwell said that his description of the proposed works in the quote as a 'Jarrah Decking Job As Discussed' was not intended to convey and nor did it convey an offer to lay the boards that were to be supplied by Mr Booy. He also said that the mere supply of the fixings for the boards does not imply that he is offering to use the fixings himself to lay the boards but rather he was supplying them for Mr Booy to use.

1. Whether Mr Blackwell did agree to lay the boards supplied by Mr Booy involves the proper construction of the amended contract.
2. We consider that although we are not bound by the rules of evidence, such as the Parol evidence rule, we do consider that the proper construction of the amended contract is to be found by primarily considering the written quote dated 24 May 2022 by reference to its text, context and purpose: Electricity Generation and Retail Corporation t/as Synergy v EIT Kwinana Partner Pty Ltd.[5]
3. The following two details in the quote require careful consideration:
   • the description 'Jarrah Decking Job As Discussed'; and
   • the details within the sub-headings in the body of the quote.
4. We note that while Mr Blackwell and Mr Booy did discuss the proposed works before Mr Blackwell gave Mr Booy the quote dated 24 May 2022, it is clear to us from the evidence of the parties that this discussion went only so far as to confirm that the quote was provided on the basis that Mr Booy was himself to source, pay for and supply the jarrah decking boards but did not extend to any express discussion as to who was responsible to lay those boards. Therefore, the parties' precontractual discussions, even if we were to consider them, would not assist us to properly construct the amended contract.
5. While it is unfortunate that Mr Blackwell described the proposed works as a 'Jarrah Decking Job' we do not consider this description means that Mr Blackwell was offering to lay the decking boards that were to be supplied by Mr Booy. We consider this description to be no more than a general and convenient description of the proposed works. Therefore, this description does not assist us to properly construct the contract.
6. We do, however, consider the details of the work that Mr Blackwell was offering to do under the sub-headings in the body of the quote do assist us to find the proper construction of this contract. These sub­headings are 'Labour', Footing Materials', 'H4 base frame' and 'Fixings'.
7. The sub-headings 'Footing Materials' and 'H4 base frame' clearly only relate to the frame and are therefore not relevant to the question as to who is to lay the decking boards under the amended contract.
8. The sub-heading 'Labour' is, however, a relevant sub-heading. This is because, given that the fixings are provided under the contract, the cost of laying the decking boards is then entirely a labour cost.
9. Mr Booy says that the reference in this sub-heading to '125mm x 19mm Jarrah Decking Boards' must mean that a labour cost is applied to the decking boards, with the result that this is an offer to lay the decking boards. Mr Blackwell in turn says that the reference in the sub-heading to the decking boards was intended only to inform Mr Booy of the dimensions of the boards he was to supply.
10. After considering the evidence and the submissions of both parties we are persuaded the reference in the sub-heading 'Labour' to the decking boards does mean a labour cost is applied to the decking boards, with the result that we are satisfied and find that under the amended contract Mr Blackwell is required to lay the decking boards supplied by Mr Booy.
11. We are therefore satisfied and find that Mr Blackwell's email to Mr Booy on 20 October 2022 in which he said 'I will not be laying your decking' constitutes a breach of the contract by Mr Blackwell of his obligation under the amended contract to lay the decking boards, and that it was reasonable for Mr Booy to then engage a third party contractor to lay the decking boards at the reasonable cost to him of $3,300.
12. Consequently, we are also satisfied and find Mr Booy is himself in breach of the amended contract by not paying to Mr Blackwell the amount of $2,093.48 under the contract.

1. With respect to the renovation works, while Mr Blackwell accepts that many significant items of this work were not carried out in a proper and proficient manner or are faulty or unsatisfactory and so are required to be rectified, he contends that they should be rectified to the standard of a uninhabited room and that he should be given the opportunity to complete those rectification works rather than to pay a monetary order, which in any event he would not be able to pay as he is impecunious.
2. The first question the Tribunal must therefore determine is whether it is a term of the contract that the renovation works are to be completed to the standard of a habitable room or to the standard of an uninhabited room.
3. Mr Booy contends that while no express term in the written contract stated that Mr Blackwell is to renovate the enclosed rear patio to the standard of a habitable room he says he told Mr Blackwell before the parties entered into the amended contract that Mr Booy wanted the room to be renovated to the standard of a bedroom, which he says is, necessarily, a habitable room.
4. Mr Blackwell denies that prior to the parties entering into the amended contract that he was told by Mr Booy the rear patio was to be renovated for use as a bedroom. Mr Blackwell said the amended contract required him to renovate a partially enclosed non-habitable storeroom for use as a better storeroom, but not to improve the room so it could be used as a bedroom.
5. Mr Blackwell and Mr Booy agree that the cost of remediating the renovation works to the standard of a habitable room would be substantially more than the cost of remediating them to the standard of an uninhabitable room.
6. Mr Booy's expert builder, Mr Chamberlain, assessed the cost of remedying works to the standard of a habitable room to be about $31,000 while the cost of remediation to the standard of an uninhabited room (subject to various considerations) could be as low as about $20,000.
7. Mr Booy in his submissions, however, urged the Tribunal to reject the evidence of his own expert, Mr Chamberlain, and instead find based on quotes he had obtained from other builders that the real cost of remediating the works to the standard of a habitable room is around $39,000.
8. During the final hearing we had the benefit of hearing from Mr Chamberlain who had attended the home on three separate occasions to inspect the renovation works, as well as the benefit of reading his three reports.
9. Mr Chamberlain is a registered builder with several decades of experience in the building industry. Mr Chamberlain spoke to his three reports in his oral evidence. His oral evidence was consistent with his reports.
10. Mr Chamberlain's findings in his 16 March 2023 report as to the renovation works on the enclosed rear patio are, in summary:

(1) The joints between the ceiling linings are not flush and so are defective. There are bubbles in the paintwork next to some of the joints between the ceiling sheets and these joints need to be prepared and repainted.

(3) The joints in the cornices are not well aligned or flush and were not sanded prior to painting and need to be prepared and repainted.

(4) The exposed underside of 'plate' timber secured to the face of the wall was planed, filled or sanded prior to being painted.

(5) The recessed edges of ceiling linings have not been flushed and sanded prior to painting and need to be prepared and repainted.

(6) Where paintwork on the ceiling has been touched up the variation in colour and texture of the paintwork is readily seen and needs to be prepared and repainted.

(7) The ceiling/cornice above the aluminium sliding door frame sags by 10 millimetres, and this will need to be adjusted.

(8) The joints between the ceiling linings and the plasterboard wall sheets were not proficiently flushed and sanded prior to the end wall being painted.

(9) Excess filler material has been applied to the edges of the timber window frame and was not removed prior to painting and will now need to be stripped back and redone.

(10) Excess screed material was not cleaned off the painted skirting at the west end of the room, which will now need to be broken off before being prepared and repainted.

(11) The screed applied to the slab floor is uneven and has broken up. This will need to be stripped back and professionally resurfaced.

(12) There is no flashing or damp-proof course material between the concrete floor and glass sliding door in the rear room.

(13) The concrete slab floor extends out well beyond the external wall which makes it impossible to waterproof the wall to floor junction.

(14) The verge capping at the east end of the roof is not adequately secured to the roof sheets.

(15) There are too few support battens for the length of the roof sheets for a habitable room.

(16) The gutter is too short for the length of the room which has been partly covered by an 'untidy piece of pressed metal', which will result in water running off the capping and down onto the pier at the eastern rear end brick wall.

(17) An acrylic texture coating was not applied to the top of the east wall which is therefore exposed to weather and to water run-off. It is necessary to remove and refit the downpipe and to eliminate gaps at the edges of the exposed timber beam.

(18) The timber support beam to the aluminium sliding door is exposed to the weather and should have been pre-painted prior to installation.

(19) An alternative outlet to the gutter needs to be installed so as to prevent overflow.

(20) The exposed edges of 'blue-board' sheets need to be covered and where needed trimmed back and covered.

(21) Electrical installation is incomplete e.g. there is no provision for a ceiling light and a junction box marked 'P1 LIVE' protrudes through the plasterboard wall lining at the east end of the room.

1. Mr Chamberlain in this report also noted that the driveway and front wall of the home were damaged.
2. Mr Chamberlain's findings in his 17 October 2023 report are in summary (using the numbering system in the BRO):

(1) The roof gutter on the rear room has been replaced but the replacement gutter is defective as it contains a dip which retains more than 10 millimetres of water contrary to AS 3600.3 and item 8.03 in the WA Guide to Standards and Tolerances and does not contain any overflow devices. It also does not match the profile of guttering on other areas of the home.

(2) The top of the pillar at the rear room has not been remedied in accordance with the BRO but it has been painted, which may be sufficient.

(3) [complaint withdrawn by Mr Booy, no action required]

(4) [complaint withdrawn by Mr Booy, no action required]

(5) The screed material has been removed from the concrete floor and this has exposed a portion of limestone footing, that is, there is a gap between the floor and interior wall of the room. The removal of the screed material has also exposed uneven surfaces on the floor up to 10 millimetres in height over a distance of 700 millimetres.

(6) The gap between the floor and glass sliding door has been unevenly filled with mortar and with a sealant which is not appropriate for outdoor use. This sealant has shrunk and there are now gaps which will allow water to enter the room. Flashing has not been installed. The concrete floor has been cut back but at an insufficient distance to allow water to properly drain. The 'blue-board' wall is in contact with the concrete floor, which is contrary to the manufacturers installation guide. The cutting of the concrete floor has exposed the steel reinforcing mesh which has clearly been placed at the bottom of the floor rather than in the top third of the floor, which significantly compromises the strength of the floor. Some portions of the mesh now protrude from the cut profile and these will over time rust and then transmit rust into the mesh inside the floor which will further compromise the floor. The profile of the cut floor also shows that the thickness of the floor varies between 90 millimetres and 50 millimetres whereas for a habitable building it should have a minimum thickness of 150 millimetres. We note here that Mr Chamberlain in his oral evidence stated that the thickness of a slab in a non-habitable building should also have a minimum thickness of 150 millimetres.

(7) Apart from paint left on the sliding door frame and material left on the skirting, the rear room has been repainted to a minimal acceptable standard. However, the cornice line above the sliding door is not in alignment.

1. Mr Chamberlain's findings in his 16 September 2024 report in summary (using the numbering system in the BRO):

(1) No further work has been done on the guttering and the replacement gutter remains defective.

(2) No further work has been done on the top of the pillar, but the works previously done may be sufficient.

(3) [complaint withdrawn by Mr Booy, no action required]

(4) [complaint withdrawn by Mr Booy, no action required]

(5) A durable surface has been placed on the concrete floor but the gap between the floor and interior wall of the room which shows an exposed limestone footing remains.

(6) Flashing has not been installed. A water test showed water ingress at each end of the sliding door frame. Blue-sheet remains in contact with the concrete floor, contrary to the manufacturer's recommendations, which is therefore ineffective in controlling condensation. The gaps in the sealant remain. The reinforcing mesh remains at the bottom of the concrete floor, some parts of the reinforcing mesh remain exposed, the exposed mesh is rusting and the thickness of the concrete floor remains inadequate. All these difficulties mean that the concrete slab should be taken up and replaced.

(7) The cornice is still not in alignment and paint has not been removed from the sliding door frame.

(8) [complaint withdrawn by Mr Booy, no action required].

(9) No further work has been done on the cracks in the driveway, but the works previously done may be sufficient.

1. Mr Chamberlain referred in his oral evidence to photographs he had taken during his inspections at the home and which he had included in his reports. These photographs confirmed his oral evidence. While Mr Blackwell cross-examined Mr Chamberlain at length, his cross­examination did not affect our view as to the accuracy of Mr Chamberlain's evidence.
2. Mr Blackwell does not dispute that under the amended contract he is required to renovate an enclosed patio at the rear of the home. Mr Blackwell also accepts that some (but not all) of the works he performed on the enclosed patio are defective. However, as we observed above, Mr Blackwell does not accept that he was required under the amended contract to renovate the area to the standard of a habitable room.
3. Consequently, as we stated above, the questions the Tribunal must determine are, first, to what extent are the works performed by Mr Blackwell defective and, second, are the defective works to be rectified to the standard of a habitable room (as Mr Booy contends) or to the standard of an uninhabited room (as Mr Blackwell contends)?

1. After considering all the evidence including Mr Blackwell's documents and oral evidence, Mr Booy's documents and oral evidence and Mr Chamberlain's reports and oral evidence, we were satisfied that we should accept Mr Chamberlain's evidence as to the state and quality of the renovation works performed by Mr Blackwell on the enclosed patio at the rear of the home. We were also satisfied that we should accept as accurate Mr Chamberlain's evidence as to the cost of rectifying the defective work to both the standard of a habitable room as well as to the standard of an uninhabited room. That is, we accept and adopt Mr Chamberlain's findings, particularly as he has given these in his report of 16 September 2024 and in his schedule of the cost of the rectification works as it was amended at the hearing to reflect the cost of rectifying the works to the standard of an uninhabited room.
2. The most important aspects of Mr Chamberlain's evidence is that:
   • the minimum depth of a slab floor of both a habitable room and an uninhabited room should be 150 millimetres;
   • the slab floor of the renovated room is defective as it is generally 90 millimetres in depth although in some places it is only 50 millimetres in depth;
   • the mesh of a slab floor should be placed toward the top of the depth of the slab and the mesh should be totally enclosed within the slab, but the slab floor of the renovated room is defective as the mesh is placed on the bottom depth of the slab and portions of the mesh protrude from the slab and have started to rust. This rust will inevitably penetrate into the slab which will weaken an already defective slab;
   • the surface of the slab floor is irregular;
   • the slab floor of the renovated room cannot be rectified in place, but it must be removed and replaced;
   • the removal of the slab floor necessarily requires the removal and consequent destruction of the majority of the work performed by Mr Blackwell; and
   • the cost of remediating the enclosed patio area to the standard of a habitable room is around $20,000.
3. For these reasons we find that the slab floor of the enclosed rear patio of the home is work performed by Mr Blackwell that is not carried out in a proper and proficient manner or is faulty or unsatisfactory.
4. We observe here that many of the other renovation works performed by Mr Blackwell were also not carried out in a proper and proficient manner or are faulty or unsatisfactory and had they not been required to be removed in order to replace the slab we would have ordered their remediation in accordance with the recommendations set out by Mr Chamberlain in his report of 16 September 2024. We also observe that Mr Chamberlain said, with only some minor exceptions, that the materials used by Mr Blackwell in the renovation works would be destroyed in the process of removing them with the only materials that could be saved and re-used during the process of rectifying the renovation works being the gyprock ceiling and the front fascia plate.[6]
5. The question we must now resolve is whether under the amended contract the renovation work was to be performed to the standard of a habitable room or to the lesser standard of an uninhabited room.
6. As we observed above, the amended contract is silent as to the standard to which the renovation work should be performed. Mr Booy said that he had told Mr Blackwell prior to entering into the contract that he intended to use the renovated room as a bedroom, which we accept is a habitable room. In turn, Mr Blackwell says he agreed only to renovate the rear patio area to the standard of a storeroom, which we accept is an uninhabited room.
7. Whether Mr Blackwell was required under the amended contract to perform the renovation work to the standard of a habitable or an uninhabited room involves the proper construction of the amended contract. Again, we consider that although we are not bound by the rules of evidence, such as the Parol evidence rule, we do consider that the proper construction of the amended contract is to be found by primarily considering the written quote dated 26 June 2022.
8. After considering this quote we are satisfied and find that under this quote Mr Blackwell was not offering to renovate the rear patio area to the standard of a habitable room. We consider that if the parties had agreed that such substantial works were to be undertaken this would have been specifically referred to in the quote, whereas it was not.
9. If we had thought it necessary to consider matters outside of the terms of the contract, we would have arrived at the same finding. This is because on the evidence of both Mr Booy and Mr Blackwell the rear patio area was, prior to the renovation works, an outdoor patio area which had been partially enclosed by a prior owner and was in very poor condition. It appears that the prior owner had used the enclosed patio area as a games room, but at the time of the renovation works it was being used by Mr Booy as a place to store such things such as a second-hand set of sliding doors and some building materials.
10. Mr Booy in his oral evidence also said before June 2022 he had himself renovated a bedroom at the front of the home. His evidence was that he had completed renovation works on a bedroom at the home as an owner-builder and when doing so, he did commission construction drawings for the works and he did obtain a building permit from the local authority for the works. The cost of the renovation works on this bedroom (which was completed partly by Mr Booy engaging trades and partly by having friends and family who were tradesmen do work at no cost) was several multiples of the amount quoted by Mr Blackwell for the renovation works on 26 June 2022.
11. Consequently, we find that Mr Booy knew that such a renovation would require building plans and a building permit, and that it would cost well in excess of $10,000, with the result that he could not and he did not expect the renovations on the rear patio area to provide him with a bedroom.
12. We also observe that from 20 October 2022 the parties' relationship turned from friendship to hostility. We note:

(a) On 20 June 2024 Mr Booy lodged with Fremantle Magistrates Court an application for a violence restraining order against Mr Blackwell. This application was later withdrawn, apparently, after an apology was given by Mr Blackwell to Mr Booy;

(b) On 17 August 2024 Mr Booy emailed Mr Blackwell complaining about Mr Blackwell's conduct towards his tenants and warning that his tenants may pursue a restraining order against Mr Blackwell; and

(c) On 6 May 2024 Mr Booy's tenant emailed Mr Booy complaining that Mr Blackwell was 'hostile and argumentative' and that the tenants did not want him to ever return to the home.

1. The correspondence between the parties in Exhibit 1 is also replete with accusations by one of the parties that the other has told 'misleading' stories, is telling 'lies' and 'falsehoods'. Our observations of the parties during the hearing are they were equally hostile with each other.

Our conclusions as to the decking works and renovation works questions

1. Section 3 of the HBC Act defines a 'home building work contract' to be 'a contract between a builder and an owner for the performance by the builder of home building work'. The definition excludes certain contracts, none of which are relevant to this matter.
2. Section 3 of the HBC Act then provides that:

(a) 'builder' means 'a person who carries on ... a business which consists of or includes the performing of home building work for others'; and

(b) 'home building work' means 'the whole or part of the work of ... constructing or carrying out any associated work in connection with ... an existing dwelling';

1. It is not in dispute in this proceeding that Mr Blackwell is an owner of a business named Solidline Construction which engages in home renovation, home decking, home driveway and home landscaping works, all of which are home building work within the meaning of the HBC Act.[7]
2. With the respect to considerations 1, 2 and 3 referred to in Deshmukh we find, for the reasons given above; that:

(a) the amended contract is a valid home building work contract which is binding on Mr Blackwell and Mr Booy;

(b) that Mr Blackwell is the builder of the decking works and is the builder of the renovation works under the amended contract;

(c) the amended contract price is $13,818.74, of which $9,018.74 remains outstanding;

(d) Mr Blackwell is in breach of the amended contract by not laying the decking boards and Mr Booy is also in breach of the amended contract by not paying the monies he is obliged to pay to Mr Blackwell under the contract for the decking works; and

(e) The renovation works performed by Mr Blackwell must be removed and replaced and almost all of the materials used will be destroyed in the process of removal, that the existing works and the materials are of no value to Mr Booy.

1. With respect to consideration 4 referred to in Deshmukh, Mr Booy contends he should not be required to pay any monies to Mr Blackwell for the renovation works.
2. For the reasons given above, we are satisfied that, as the renovation works must be removed and replaced, Mr Booy should not be required to pay any monies under the contract for those works, and that any monies he has paid should be returned to him.
3. As it is not disputed by the parties that Mr Booy did pay Mr Blackwell $800 for these works, we are satisfied and find that Mr Blackwell should re-pay $800 to Mr Booy.
4. Finally, Mr Blackwell claims interest at the rate of 10% on the monies Mr Booy has not paid to him under the amended contract. Mr Booy disputes that he is required to pay interest on this money, and points to the amended contract which does not contain a term which would require Mr Booy to pay interest on monies owed.
5. On reviewing the amended contract, we are satisfied and find that it does not contain a term which would require Mr Booy to pay interest on monies owed. We also note the Tribunal is not given any power under any enabling Act or the SAT Act to require a party to pay interest on monies owed. Accordingly, find that Mr Booy is not required to pay interest on any monies owed by him under the amended contract.
6. We will consequently answer the questions we set above in respect of CC 8 of 2024 in the following way:

(a) Question: Is Mr Booy in breach of the amended contract by failing to pay all monies owed by him to Mr Blackwell and, if so, what amount should he pay? Answer: Yes, with respect to the decking works and no with respect to the renovation works.

(b) Question: Should the Tribunal make a HBWC order requiring Mr Booy to pay these monies to Mr Blackwell? Answer: Yes, with respect to the decking works in the amount of $2,093.48 and no with respect to the renovation works.

(c) Question: Is Mr Booy required to pay interest on any monies owed by him to Mr Blackwell? Answer: No.

1. Proceeding CC 9 of 2024 relates to the same amended contract and the same building works we discussed above with respect to CC 8 of 2024. We therefore adopt our findings with respect to the evidence in CC 8 of 2024 in this proceeding.
2. In addition, in this proceeding, the term 'regulated building service' is defined in s 3 of the BSCRA Act to mean any of the following:

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

(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; [and]

(c) any other service or work prescribed for the purposes of this definition[.]

1. Mr Blackwell, while not a registered building service provider or an approved owner builder, did carry out home building work for Mr Booy under a home building work contract for gain or reward. The work that Mr Blackwell agreed to carry out is therefore a regulated building service within the meaning of the BSCRA Act.
2. We will consequently answer the questions we set above in respect of CC 9 of 2024 in the following way:

(a) Question: Are decking works and the renovation works a 'regulated building service' under the BSCRA Act? Answer: Yes, both the decking works and the renovations works are a 'regulated building service'.

(b) Question: Were the decking works and the renovation works not carried out in a proper or proficient manner or are faulty or unsatisfactory? Answer: Yes, both the decking works and the renovations works were faulty or unsatisfactory. The decking works because the works were incomplete as the decking boards were not laid by Mr Blackwell and with respect to the renovation works, for the reasons set out in Mr Chamberlain's evidence, the slab floor installed by Mr Blackwell must be removed and replaced which will require the destruction of almost all of the other works performed by Mr Blackwell on that room, the majority of which were also faulty or unsatisfactory.

(c) Question: If the decking works or the renovation works are faulty or unsatisfactory, whether the Tribunal should make a building remedy order with respect to the decking works or renovation works? Answer: No with respect to the decking works, as the applicant is provided with a remedy equivalent to the remedy he is seeking in this proceeding in proceeding CC 8 of 2024. Yes, with respect to the renovation works as they require rectification in the manner recommended by Mr Chamberlain, which is the removal and replacement of the works.

(d) Question: If the answer is that the Tribunal should make a building remedy order with respect to the decking works or renovation works, what is the appropriate order? Answer: With respect to the renovation works, given the deep mutual hostility between the parties which makes it very likely that there will be conflict between the parties should Mr Blackwell return to the home to do building works, a monetary order that Mr Blackwell is to pay Mr Booy $20,000, being the cost of removing and replacing the works to the standard of an uninhabited room, is justified.

(e) Question: If a building remedy order should be made, has Mr Booy suffered loss (rent and income)? If so, is Mr Booy to be compensated for that loss? Answer: A building remedy order should be made, but for the reasons given above relating to our finding that the renovation works were not required to be performed to the standard of a habitable room, no order can or should be made compensating Mr Booy for loss of rent and income.

1. With one exception Mr Booy, the applicant in this proceeding, is provided with a remedy equivalent to the remedy he is seeking in CC 124 of 2024 in proceeding CC 9 of 2024. The one exception being that in this proceeding Mr Booy is also claiming the cost of his building expert Mr Chamberlain. However, while Mr Booy is in this proceeding able to claim for the costs of his expert these costs are best considered separately, as Mr Booy is yet to claim for the cost of his expert to attend and give evidence at the hearing.
2. Accordingly, we will make an order in CC 9 of 2024 that Mr Booy is to provide submissions and evidence in support of his claim for costs (including Mr Chamberlain's fees for his report and his time to attend the final hearing and Mr Booy's own claim for lost income) within 21 days of the date of the orders we will make in that proceeding.
3. This proceeding is, therefore, inutile and it will be dismissed.

CC 10 0f 2024 - Alleged failure to comply with BRO 02023-27

1. On 7 July 2023 an authorised delegate of the Building Commissioner issued Building Remedy Order 02023-27.
2. This BRO related to a building service performed by Mr Blackwell at the home which was not carried out in a proper and proficient manner or was faulty or unsatisfactory (relating to the renovation works on the enclosed patio) and which were required to be rectified by no later than 30 August 2023.
3. Between 7 July 2023 and 31 August 2023 Mr Blackwell performed some rectification works on the enclosed rear patio. However, Mr Booy was not satisfied with those rectification works and on 1 September 2023 he lodged with the Building Commissioner a complaint that Mr Blackwell had failed to comply with the BRO. On 5 January 2024, pursuant to s 51 of BSCRA Act, the Building Commissioner transferred this allegation to the Tribunal.
4. Since 1 September 2023 evidence has emerged, however, which shows that the slab laid by Mr Blackwell in the enclosed patio area can only be rectified through its removal and replacement, with the consequence that the entirety of the renovation work performed by Mr Blackwell on the enclosed rear patio area must also be removed and replaced. That is, for reasons not known to the authorised delegate of the Building Commissioner at the time when the BRO was made, both the slab and all of the works referred to in the BRO must now be removed and replaced. For reasons we gave earlier, the Tribunal will make an order in proceeding CC9 of 2024 which will have the consequence that any further remediation work under the BRO has become inutile.
5. As a consequence of the BRO being inutile, we are satisfied it should be revoked. Accordingly, we will exercise our discretion under s 51(2)(a) of the BSCRA Act and we will revoke the BRO and then otherwise dismiss proceeding CC 10 of 2024.

1. In this proceeding Mr Blackwell relies on the same invoices as he relied upon in CC 8 of 2024. Accordingly, this proceeding is inutile and it will be dismissed.

1. We have decided these proceedings by finding that:

(a) In CC 8 of 2024 Mr Booy is to pay Mr Blackwell $2,093.48;

(b) In CC 8 of 2024 Mr Blackwell is to repay Mr Booy $800; and

(c) In CC 9 of 2024 Mr Blackwell is to pay Mr Booy $20,000.

1. When considering the appropriate form of orders to make we are mindful of Mr Blackwell's statement toward the end of the hearing that he would be unable to pay any monetary order in any of the amounts claimed by Mr Booy.[8]
2. We do not consider it would be fair or just to order Mr Booy to pay money to Mr Blackwell given that Mr Blackwell may well not pay any money we order him to pay to Mr Booy. Therefore, we consider we should adjust the amount of money that Mr Blackwell is to pay Mr Booy by deducting from it the amount that Mr Booy is to pay Mr Blackwell. Doing this will result in a single monetary order in CC 9 of 2024 that Mr Blackwell pay Mr Booy the sum of $18,706.52.[9]

1. Pursuant to s 36(1)(b) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), by no later than 2 October 2025 the respondent must pay $18,706.52 to the applicant, this being the cost of remedying complaint item 4.
2. Complaint items 1, 2 and 3 are dismissed.
3. By no later than 2 October 2025 the applicant must file (lodge) with the Tribunal and give to the respondent an outline of submissions in respect of any costs application by him in respect of this proceeding, setting out the basis for any costs order and the quantum of costs being claimed.
4. By no later than 23 October 2025, the respondent must file (lodge) and give to the applicant an outline of submissions in opposition to the costs order sought by the applicant pursuant to Order 3.
5. Unless otherwise ordered by the Tribunal, any application for costs shall be determined by the Tribunal on the papers pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA).

1. Pursuant to s 51(2)(a) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) the Tribunal revokes Building Remedy Order O2023-27.
2. The proceeding is otherwise dismissed.

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

[1] List of All Complaint Items lodged with Building Commissioner dated 5 January 2024.

[2] List of Complaint Items lodged with Building Commissioner dated 5 January 2024.

[3] List of All Complaint Items lodged with Building Commissioner dated 9 July 2024.

[5] Electricity Generation and Retail Corporation t/as Synergy v EIT Kwinana Partner Pty Ltd [2022] WASCA 3 [230].