Building dispute - Complaints that regulated building service not carried out in a proper or proficient manner or faulty or unsatisfactory - Whether damp proof course present - Complaints of non-compliant lintels - Reasonable costs of works

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5(1), s 36, s 36(1)(b), s 37, s 38(1)(a), s 38(1)(b), s 51, s 51(2)(a), s 51(2)(b)

State Administrative Tribunal Act 2004 (WA), s 51(1)

1. In 2021, Steve Cotton and Georgia Lello (owners) entered a lump sum home building work contract for Sovereign Building Co Pty Ltd (builder) to construct a double story dwelling, now known as Unit 7, 4 The Straits, Clarkson.
2. Consequential upon Mr Cotton lodging a complaint under the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act), on 2 August 2023, the Building Commissioner issued a Building Remedy Order under s 36 and s 37 of the BSCRA Act requiring the respondent to remedy the mortar joints of the external face brickwork of the property so as to accord with the pertinent standard. Although the builder performed some of the required remedial works, Mr Cotton remained dissatisfied, and he applied to the Building Commissioner under s 51 of the BSCRA Act to convert its order to remedy to an order to pay.
3. On 1 August 2024, the Building Commissioner, with the consent of the Tribunal, transferred the s 51 conversion matter to the Tribunal (CC 513 of 2024).
4. In a separate proceeding, on 19 March 2025 the owners lodged with the Building Commissioner a complaint containing 11 items in respect of which they claimed, under s 5(1) of the BSCRA Act, that the builder had failed to carry out a regulated building service in a proper and proficient manner or the service it carried out was faulty or unsatisfactory. On 11 April 2025, the Building Commissioner, with the consent of the Tribunal, transferred all 11 items to the Tribunal (CC 225 of 2025), noting the concurrent CC 513 of 2024 proceeding.
5. On 15 May 2025, Senior Member Aitken directed that pursuant to s 51(1) of the State Administrative Tribunal Act 2004 (WA) both proceedings remain as separate proceedings but be heard and determined together and evidence in one proceeding be evidence in the other proceeding.
6. The parties have largely complied with the directions of the Tribunal regarding the filing of documents, a joint conferral of the experts engaged by the parties occurred resulting in a joint report, the hearing before us occurred on 2 October 2025, and the parties filed written submissions subsequent to the hearing as we directed.
7. We will deal with each proceeding in turn.

1. The Building Remedy Order (BRO) dated 2 August 2023 is in the following terms:
   1. Complaint

Mortar Joints - There are more joints that are over the allowable measurement of 20mm for a mortar joint as per the supplied photos/inspection report and as per the Guide of Standards and Tolerances 2019 WA. The joints are running from 5mm to 30+mm.

The Respondent is to remedy the mortar joints of the external face brickwork to be within the tolerances stipulated in Australian Standard 3700-2018 Masonry structures Table 12.1 Tolerances in masonry construction.

All works are to be carried out in a proper and proficient manner, making good any affected surfaces.

The respondent is to make good all areas affected by repairs.

This order is to be complied with within 28 days of the date of this order.

1. The builder admits that the full terms of the BRO have not been complied with. There are two issues we need to determine:

(a) the scope of the works required to obtain compliance; and

1. Mr Cotton produced photographs of the affected walls, annotated with dots or crosses indicating individual bricks, and lines showing, usually, consecutive bricks, all of which they assert require replacement in order to achieve compliance with the BRO, whether that be for mortar being undersize or oversize.
2. Mr Cotton has produced photographs relating to three separate wall areas annotated with dots representing non-compliant perpendicular joints and lines representing non-compliant beds. The three areas are the west wall, containing the largest number of alleged defects, the south facing front wall, and the garage. Since the making of the BRO, the builder has performed remediation works on the front wall, with the defects about which the owners complain emanating from those works. In relation to the other areas, no remediation has been attempted.
3. Mr Cotton's photographic evidence is corroborated to some extent by the evidence of three witnesses who gave evidence at the hearing:
4. Mr Mike Locke, who, as a Building and Energy inspector, conducted an inspection in December 2023 to ascertain whether or not the BRO had been complied with. He found that it has not been. Mr Locke was supplied with the same photographs which formed part of the evidence before us. He said that his inspection confirmed the existence of the non-compliant perpendiculars and beds to the extent that he was able to observe them from ground level. As for alleged defects higher up, he relied upon the annotated photographs.
5. Mr Guiseppe Ferrante, a registered builder, provided a quotation for remediation of the affected areas. He gave evidence that he visually inspected the brickwork where he could (he noted that the higher bricks were difficult to see) and he also measured some but not all the bricks indicated in the annotated photographs to be non-compliant. He said that arising from his own investigations, he was in agreement with about 90% of the characterisations in the photographs of non-compliant perpendicular and bedding mortar.
6. Mr Russel McCarthy, a building inspector and registered builder, agreed with Mr Locke's report based upon his on-site observations.
7. Although we concur with the builder's written submission that the Tribunal is being asked to make an order to pay without firm evidence of the number of bricks needing to be replaced, we are persuaded by the evidence which we have just summarised that the annotated photographs are sufficiently accurate to rely upon. This is especially so given other evidence of, in particular, Mr Locke, Mr Ferrante and the builder's expert witness, Lachlan Deshon, that the precise extent of the rectification works (in the sense of the number of bricks requiring replacement) will be revealed only when the works are undertaken.

1. There is a range of possible methodologies available: replacement of only those bricks annotated with a dot or line, replacement of a series of bricks (generally, from the same row as the affected brick) in order to enhance the aesthetic outcome, and replacement of the whole wall of which the annotated bricks form part.
2. Ultimately, the parties appear to have reached agreement that the second option of 'chasing bricks' is supported by the witnesses and the parties themselves. In other words, there is no support in any of the affected areas for the replacement of an entire wall. However, the 'chasing bricks' concept gives rise to the uncertainty surrounding the exact number of replacement bricks to which we have referred.
3. For the above reasons, we have decided that it is not appropriate to speculate about the replacement brick tally in favour of a costing methodology focussed upon the labour and materials involved in rectifying the remaining inadequacies in the perpendicular and bedding mortar joints in each of the three areas. As to this, the evidence throws up a number of alternatives. We will deal with the two principal contenders.

1. Mr Locke provided an assessment of the owners' and builder's quotations and advised of his own estimated cost.
2. Mr Locke took the opportunity of reviewing the other quotations available and, with one exception, was unpersuaded by any of them. He explained that his estimate took into account that the need to repair numerous perpendicular joints raised the possibility, but not the certainty, of having to remove the whole of a panel. He also used Rawlinsons cost guide as the basis for calculating wage rates, materials and scaffolding.
3. The exception in terms of quotations considered by Mr Locke is that part of the quotation of STJ Construction Pty Ltd (Exhibit 4) dealing with the replacement of 60 bricks which the quote suggested was necessary in order for the brickwork at the owner's property to comply with the tolerances stipulated in AS 3700. The quotation was principally concerned with rendering the external wall, which is not an outcome required by the BRO. It is only the recommendation for brick replacement preparatory to rendering which formed part of Mr Locke's assessment.
4. Mr Locke arrived at his estimate by adding the STJ amount, inclusive of GST, of $5,150 to the figure quoted by Premier Scaffolding (Exhibit 1 at 74) for the scaffolding required of $8,415.
5. We found Mr Locke to be impartial and capable of costing the works under consideration, and, subject to one matter we will come to, his estimate to be based on rational underpinnings. In our view, it is a reasonable guide to the cost of remedying the current lack of compliance in circumstances where absolute or even near precision is unattainable.
6. The relevant part of the STJ quotation indicates a pre-GST cost of $4,681.82. Considering the requirement that the finished product be face brick, we would make an additional allowance of 50% to achieve an estimate of a pre-GST reasonable cost of $7,022.73.

1. Mr Ferrante, a registered builder, altered his position at the hearing in response to questions put to him.
2. At the hearing, in the absence of any contemporaneous working details, Mr Ferrante attempted to justify his original quote by reference to the likely labour requirement of three days for the western wall and half a day for each the front wall and garage; the need for 12 packs of bricks ($4,860), hire of two bins ($1,500) and either hire of a bobcat or utilising a labourer, and the cost of scaffolding.
3. Depending upon whether he was being asked by the Tribunal or by the builder, Mr Ferrante offered modified estimates which ranged from approximately $36,000 to as low as $20,000.
4. In the final analysis, given the wide range of estimates, we were not persuaded as to the reliability of any of Mr Ferrant's costings.

1. Taking into account all of the possible combinations of costs of labour, numbers of bricks, rubbish removal and scaffolding, we consider the best estimate to be that of Mr Locke adjusted in the manner we have described.
2. We therefore accept $16,140.00 as the reasonable cost for the remedial work of rectifying the currently defective brickwork, calculated as follows:

1. Of the 11 complaint items, some were resolved either completely or substantially prior to hearing. In relation to the latter category, we can state our determination succinctly. The relevant matters are as follows (unless otherwise stated, all amounts for remediation cost are GST exclusive):

1. Both parties agree upon both the lack of weep holes and that this is a building defect to be remedied.
2. As with all items of complaint, the owners seek an order to pay rather than order to remedy, which the builder does not oppose. The test to be applied in determining amounts is 'such costs of remedying the building service as the Tribunal considers reasonable': s 36(1)(b) BSCRA Act.
3. The parties agree that the reasonable cost of remediation is $750 and we will allow this amount.

1. The experts agreed that the only unsatisfactory aspect of the flashing complained about is a section on the west wall containing a bent section causing a gap between the capping and brickwork. Replacement of a 1.2 metre section is required.
2. The parties agree that the reasonable cost of remediation is $290, and we will allow this amount.

1. The experts agreed that the primary building elements are not susceptible to termite attack, obviating any requirement for a termite barrier. This item was consequently not pursued before us.

1. In their joint report, the experts agreed that the chips in brickwork in excess of 2 millimetre and voids in this the mortar evident in many areas are unsatisfactory. Although they opine that repair should be by patching rather than replacement due to the high risk of a poor outcome due to colour variations in different batches, there was general acceptance at the hearing that there was room for discretion to allow replacement where that was preferable.
2. The parties agree that there are 34 affected bricks. Adopting the same reasoning as we employed in CC 513 of 2024, we adopt a methodology focussed upon the labour and materials involved in rectifying the remaining inadequacies in preference to an amount per brick.
3. In their closing submissions on the costing of this item, the owners assume a 50/50 split of bricks being replaced and those being patched. They arrive at a total amount of $2,740, relying on a 'per brick' figure which formed the basis of a quote obtained by Sovereign from a bricklayer, Daniel Cassidy. Mr Cassidy was not called as a witness. The owners also obtained a separate quote for 'void rectification' of $1,750.
4. Mr Deshon's costing for this item of $1,555 is calculated on the time estimated to cut out the bricks and bed in the new brick, in respect of all 34 bricks - that is, he did not allow for the likelihood that a number, perhaps a significant number, of bricks might be patched. We concur that his quote is therefore likely to be an overestimate. In response to a question from us at the hearing, he accepted that a total amount of $1,000 would be an appropriate estimate allowing for bricks to be patched where appropriate. In its written submissions, however, Sovereign reverts to proposing that we accept Mr Deshon's original estimate. We will oblige this request.
5. As for Mr Cotton's separate claim for 'void rectification', we make two observations. The relevant complaint schedule item is 'Perimeter of Building - Brickwork - Non-compliant - Brickwork is free of chips and damage that exceeds 2 mm'. So described, it is limited to the condition of the bricks. Secondly, the necessary remediation, where bricks are replaced, will necessarily involve bedding in, as stipulated in Mr Deshon's estimate.
6. We will allow $1,555.

1. The builder accepts liability. The experts reported that remediation would include first engaging a professional graffiti removal company, and if this was not successful, the bricks should be replaced. We were informed by Mr Cotton that a professional clean had failed to remove the graffiti, and we are satisfied, assisted by a photograph in Mr Deshon's report which was obviously subsequent to the attempted removal, of the correctness of this submission.
2. We again agree that the methodology of Mr Deshon applying to the cost of the removal and replacement of the 57 affected bricks in one contiguous area is appropriate. In addition to his figure of $1,260, we will add a plumber's charge for the removal and reinstallation of a hot water service not present at the time of his estimate of $500 (an amount Mr Deshon accepted, and exceeding the quotation belatedly submitted by the owners), making a total of $1,760.

1. The experts agreed that there are four areas of the west elevation wall which are out of plumb to the extent they exceed tolerances under AS 3700:2018 Table 12.1.
2. Mr Deshon suggested that each of the four areas was approximately one half the size of the area of the graffiti stain repair. Adopting the same methodology as with other similar items, which we accept, he estimated a cost of $630 per area.
3. Mr Deshon said that in his opinion, one of the four areas is roughly the same as an area included in the conversion proceeding, making it appropriate to confine the cost to three areas. However, in its closing submission, the builder submitted that the full $2,520 is appropriate for this item. Once again we agree to this admission against interest.
4. In addition, an allowance included by Mr Deshon for the removal and reinstallation of an external air conditioning unit is required, again in the sum of $500.
5. Our allowance for this item is $3020.

1. The owners accept that these matters will be remediated in the course of the further works required to satisfy the terms of the BRO the subject of our order to pay in CC 513/24.

1. The genesis of this complaint appears from the report of BT Inspections WA dated 7 January 2024, at Exhibit 1 at 33. The report states:

The Inspector wet tested the mortar, and could establish no PPE was integrated with the mortal mix.

1. The report's author, Brian Taylor, not being available for the expert conferral or the hearing in the Tribunal, Mr McCarthy effectively assumed his role as the owners' expert.
2. Significantly, in the expert conferral report, Mr McCarthy opined:

RM does not agree that either the RM or LD tests were a suitable test to confirm if there was a DPC in the brickwork.

1. Mr McCarthy's comment was made in the context of the experts' agreement that there is no weatherproofing performance issue with the building, in the sense that there is no moisture entering the building.
2. The two experts conduced different testing methods, albeit both applied water to the external brick face. Mr McCarthy, and before him Mr Taylor, wet a number of bricks by hose vertically, wetting bricks above as well as below the supposed DPC mortar joint. Mr McCarthy explained at the hearing that his method entailed looking for water beads to form on the DPC mortar joint as would be anticipated due to the hydrophobic properties of treated mortar. He also looked for the colour variation he would expect. Neither was observed.
3. Mr Deshon suggested that his method was preferable, as it allowed an assessment of whether water was being drawn up through the horizontal mortar joint where the DPC was supposed to be. He found, by observation and moisture testing, against water traversing the mortar joint.
4. Given Mr McCarthy's opinion that neither test is to be regarded as determinative, and absent any further test outcome (for example, chemical testing for the presence of DPC chemicals), we are left with no option but to decline to make an order in respect of this complaint item as it has not been proven.

1. The experts agree that the lintel placement is unsatisfactory in that one side of the garage opening provides 90 millimetre bearing length, contrary to the requirement under AS 4773.2:2015 of a 150 millimetre bearing length. The builder not having obtained an engineer's assessment that the as-built construction is suitable, the remedy by the experts is to move the lintel or modify the opening.
2. Mr Deshon in his report provided a photographic description of the method for moving a lintel, at an estimated cost of $2,000. Mr Cotton has expressed his preparedness to accept Mr Deshon's estimate of $2,000, to which he would add $412.50 for painting the lintel in accordance with a quote attached to his closing submission. Despite providing the quote following the hearing, thereby denying Sovereign the opportunity to comment on both the need for painting and its cost, we are prepared to accept both as being necessary and reasonable.
3. We will allow $2,412.50.

Item 5 - Non-compliant lintels above window frames and doors

1. This appears to have been a generalised complaint of inadequate lintel bearing lengths. The experts agreed that no lintel bearing lengths could be determined during their inspections. Although their joint report refers to video footage provided by the owners which showed, according to Mr McCarthy, that the lintel bearing lengths on other windows are not 150 millimetres where required, no such video evidence was produced before us.
2. The highest that this claim gets is the owners' reliance on a photograph of the south wall appear at page 77 of the hearing book (Exhibit 1). It shows two windows each with a header comprising one (where adjacent to the window) or two (extending into the face brick) narrow bricks. The bearing lengths of the lintels traverse the window in each case and are embedded between the two-row extensions. The narrow bricks above the left-hand window are similar in length, suggesting the bearing lengths of the lintel are similar and adequate. The right-hand window, however, has a significant imbalance, the right-hand side showing full length narrow bricks easily sufficient to accommodate the requisite load bearing lengths, whereas the narrow brick extensions to the left appears to represent about one quarter of a brick length.
3. The experts agreed in relation to the right-hand window that the bearing length of the left hand end of the lintel could not be compliant (there was some uncertainty as to whether a 100 millimetre or 150 millimetre minimum applied, which in turn depends upon the width of the window opening, but the experts' agreement applied to either scenario), and we are satisfied this complaint is made out in this one instance.
4. Mr Deshon's estimate to replace one lintel with one that is compliant is $1,200. Mr Cotton agrees but seeks to add the same cost of painting the lintel as with the previous item. Subject to the same reservations concerning the belated provision of evidence about need for and cost of painting, we will include it.
5. We will allow $1,612.50.

1. Our order will reflect the following determinations of the reasonable costs of remedying the building service in respect of seven of the 11 items the subject of complaint:

1. We shall decline to make an order in relation to items 1, 6, 8 and 9.

1. Pursuant to s 51(2)(a) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), Building Remedy Order O2023-1195 of the Building Commissioner dated 2 August 2023 is revoked.
2. Pursuant to s 51(2)(b) and s 36(1)(b) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), the respondent shall within 21 days of the date of this order pay the applicant the sum of $16,140.00.

1. Pursuant to s 38(1)(a) and s 36(1)(b) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), the respondent shall within 21 days of the date of this order pay the applicants the sum of $12,540.00.
2. Pursuant to s 38(1)(b) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), the Tribunal declines to make a building remedy order in respect of complaint items 1, 6, 8 and 9.

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