(a) constructing or re-constructing a dwelling ...; or

(c) altering, improving or repairing a dwelling, including a strata/community title dwelling; or

(d) constructing or carrying out any associated work ...

1. The respondent was required under the agreement to carry out part of the work of constructing the dwelling, namely the supply and installation of all plasterboard and insulation to the property. Therefore, the agreement is an HBWC, the breach of which is the subject of the owners' complaint.
2. The Tribunal has power to make an HBWC remedy order under s 41 of the BSCRA Act which includes an order that a person pay specified compensation for loss or damage caused by any breach of the contract. I would add the alternative possible outcome, where the Tribunal is not satisfied that an HBWC remedy order is justified, of the Tribunal declining to make such an order.[2]

1. The parties concur, and I find, that the parties entered into an agreement in accordance with invoices 18 and 19, the substance of which was that the builder would supply and install plasterboard and insulation for the whole of the owners' residence in accordance with architectural and engineering specifications for a total of $73,898 (GST exclusive). Of this amount, $35,000 represented a 'material deposit' for the supply of the plaster board (internal walls and ceilings) and insulation.
2. The owners' case that there was an oral term of the agreement that the builder would purchase and supply the plasterboard and insulation as soon as possible and without delay must be assessed in light of any relevant evidence, documentary and oral. My observations on the evidence before me follow:

(a) The witness summary of both owners[3] contains only a generic description of the contract between the parties on 6 May 2022 and the circumstances in which the owners entered into it. It makes no reference to the alleged oral term.

(i) refers (at paras 5 and 6) to the builder providing the owners with a written quote to supply and install plasterboard and insulation for a house being constructed for them, and '(w)e subsequently entered into an agreement with the Respondent on 6 May 2022 to formalise the Quotation'. Specific reference is made to invoices 19 and 20; and

(ii) asserts (at par 19) that '(t)he respondent knew that the delivery of the plasterboard and insulation materials was a standalone work scope that was not dependent on any work scope of the house build. His contractual obligation was to "supply the materials ASAP, without delay'' '.

(c) In her examination-in-chief, Ms Le said, in response to a question as to what was to be done with the $35,000 deposit paid to the builder:

With that the money, the respondent was to purchase and deliver our material for us to site as soon as possible and without delay.

(d) In her cross-examination, Ms Le said that she was not present on 6 May 2022 when her husband met Mr Tran and the agreement was entered into.

(e) Although her evidence was variously evasive and self-serving on the point, Ms Le eventually conceded that she could 'not remember' there being any agreement prior to 6 May 2022 regarding when materials were to be supplied.

(f) Ms Le conceded that her understanding of what Mr Tran had said at the 6 May 2022 meeting regarding the time of supply was based upon what her husband told her subsequent to the meeting.

(g) In response to a question concerning a meeting between Mr Tran, Mr Nguyen and herself when the 15 April 2023 document was signed, Ms Le conceded the possibility that there was never an agreement at that later time regarding when materials were to be supplied, apart from the requirement for the supply to satisfy the requirements of the building specifications.

(h) In re-examination, Ms Le said that the owners repeated their preference that the materials be delivered as soon as possible.

(i) Mr Nguyen did not update his written summary, and did not in his evidence-in-chief give any evidence of an agreement by the builder to supply the materials in the time sensitive fashion as contended.

(j) In his cross-examination, and again in re-examination, Mr Nguyen only went so far as to say that after the $35,000 was handed to the builder at the meeting on 6 May 2022, the builder said that he will deliver the materials 'asap'.

(k) On 16 June 2022, Mr Nguyen sent a text to Mr Tran[4] in which he informed Mr Tran that the owners' neighbour had given permission 'to lay down construction materials on his block' and asked him to 'let the timber guy know to call me when he dispatch the timber'. Despite the lack of reference in the text to plasterboard materials, Ms Le relied upon the advice given to Mr Tran in June 2022 to support her view that he could and should have delivered the plasterboard materials at that time.

(l) In his cross-examination, when asked about the features of the 15 April 2023 document, and in particular the lack of any reference to delivery of the materials by a certain date and the statement 'Work to be completed within builder's construction schedules', Mr Nguyen agreed with the proposition that they accorded with the fact that there was never any promise by Mr Tran as to when the plasterboard would be delivered.

(m) The builder's director, Nam Hoang Tran, gave evidence that at the meeting on 6 May 2022, Mr Nguyen did not ask about the time of the materials supply, and Mr Tran did not say anything about that subject.

1. The asserted existence of a term of the contract that the materials would be purchased and supplied as soon as possible and without delay is absent from the writing contained in invoices 18 and 19, and inconsistent with the 15 April 2023 document. It is also inconsistent with the absence of any reference to plasterboard in Mr Nguyen's text of 16 June 2022. Put at its highest, Mr Nguyen's evidence provides no more than feeble support for such a term, when he attributed the alleged 'deliver asap' comment to Mr Tran after he received the deposit. And Mr Nguyen himself conceded that as at 15 April 2023, almost one year after an agreement which supposedly required the builder to supply the relevant materials 'as soon as possible and without delay', the contents of the document which he signed on that day dealing with the builder's outstanding obligations are entirely consistent with there never having been any such requirement.
2. Based upon the totality of the evidence, I find on the balance of probabilities that no such oral term as contended by the owners formed part of the agreement between the parties.

Issue 2 - Did the builder breach the contract? If so, how?

1. Given my finding against the existence of an oral contractual term that the materials be supplied as soon as possible, it is not possible to find a breach of contract based upon such a term.
2. In the absence of the asserted term, there was no breach of the contractual time for the supply of the materials, because that time had not arisen when notice of the purported termination was given.
3. On 6 July 2023, subsequent to their purported termination of the agreement, the owners allowed the builder the option of delivering materials it had already purchased on conditions allowing the owners to satisfy themselves that the materials were appropriate in light of the architectural drawings and specifications with which they were required to comply. The builder took up the option. According to the owners, the materials supplied were inadequate, resulting in the owners paying the new builder $20,738.00 for the alleged shortfall.
4. Consistent with the Tribunal's objective to resolve disputes fairly and according to the substantial merits of the case,[5] I have considered whether that part of the agreement dealing with the supply of plasterboard and insulation could be regarded in isolation, so that now that both parties agree the broader agreement has come to an end, and despite the owners being unable to establish any repudiation by the builder, they may be able to rely upon a separate cause of action based upon a failure to comply with the term for supply of materials.
5. Ultimately, I have decided against such a possible cause, for the following reasons:
   1. The owners did not rely upon a case (even in the alternative) that they were entitled to be compensated for any breach of the materials supply term. Rather, the sole case they relied upon was that the builder breached the alleged term to supply the materials as soon as possible and without delay, and thereby repudiated the contract; the owners accepted the repudiation, terminated the contract and engaged another party to perform its terms which were still incomplete, and the owners suffered loss and damage as a result.
   2. As the owners themselves concede[6], the agreement did not require the supply of $35,000 worth of materials. Rather, it required the supply of materials for the whole house.
   3. Evidence of the extent and reasonable cost of the shortfall in materials required for the entire house is lacking, and no witness able to give such evidence was called or available for cross-examination. These failures are attributable to the nature of the quite different case advanced by the owners.

**Issue 3 - Were the owners entitled to terminate the contract based upon the builder's breach?

1. My earlier findings and conclusions obviate the need to deal with these issues.

1. For the above reasons, the Tribunal will issue an order declining to make an HBWC remedy order.

1. Pursuant to s 43(1) Building Services (Complaint Resolution and Administration) Act 2011 (WA) the Tribunal declines to make an HBWC remedy order.

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

[1] Hearing Book (HB) - Exhibit 1 - pages 23 - 24.

[5] State Administrative Tribunal Act 2004 (WA) s 9.

[6] Applicants' supplementary submissions filed 9 October 2025 (HB pages 138 - 141) at para 11.