(c) Was it carried out in a proper and proficient manner, or was that work faulty or unsatisfactory?

(d) If the relevant works were not performed to the required standard, what is the appropriate building remedy order?

1. As noted above, a building service complaint must be in relation to the performance of a regulated building service.[15]
2. The term 'regulated building service' is defined in s 3 of the BSCRA Act to relevantly include a building service carried out by a registered building service provider.
3. A 'building service' is defined to relevantly include the construction of a building.[16]
4. There was no dispute and we are satisfied each of the building service complaints related to the construction of a dwelling on the site and that HD and Mr Forte are both registered building service providers. Accordingly, there was no dispute and we are satisfied each of the building service complaints concerned the performance of a regulated building service, insofar as those services were provided by HD or Mr Forte.

1. Mr and Ms Leach allege HD and/or Mr Forte performed the building services the subject of the items of complaint.

1. The preliminary decision observed the absence of evidence that HD carried out the activities normally to be expected of a party contracted to construct a house at the site.[17]
2. The evidence presented at the final hearing was consistent with that finding. Mr Ayad gave evidence that HD did not perform the building works in question. In response to a question from Mr Forte, Mr Ayad stated 'I did nothing in this construction. You took all the money as requested and you do all the construction and I visited this site as a visitor ... But again, we have an agreement that I do nothing'.[18]
3. Mr Ayad later stated that he attended site only once or twice and he sent his supervisor to the site, but not to supervise because he could not supervise with Mr Forte on site.
4. Mr Forte appeared to agree that HD had not performed the relevant building works, stating:

(a) (in relation to the wine cellar) 'I don't think that Mr Ayad ... is in a position of even speculating about this because he wasn't there';[19] and

(b) 'if [Mr Ayad] would have performed [as a builder], we wouldn't have been here ... but we are here because his failure to perform his contract and - and perform as a builder'.[20]

1. We are satisfied HD did not perform the regulated building services the subject of the items of complaint in these proceedings.

1. In contrast, at the conclusion of the final hearing we were left in no doubt that Mr Forte performed the role of the builder. He knew significantly more than the other parties regarding the construction, and oftentimes was the only party with a cogent explanation of what had occurred during construction and why.
2. The preliminary decision recorded Mr Forte's evidence regarding his role as follows:[21]

... His role as project manager was to assist Mr and Ms Leach to construct the house at the site. Part of that assistance was to use his network to access significant discounts in relation to the supply of materials or labour which were passed onto Mr and Ms Leach in full to minimise their costs of construction. He worked to their instructions and provided guidance because he had more experience.

Mr Forte stated that his system worked in conjunction with a 'kitty'. All incoming funds whether from bank finance, owners' savings or government grants were paid into the kitty and all costs came out of it. The exception was when he had to advance funds to keep the project moving, or if owners paid for work directly.

Mr Forte stated that the kitty was held in a bank account in the name of his company. He controlled the money in the kitty and the cashflow. He paid for all of the materials and retained all the contractors, save for those paid for or retained by Mr and Ms Leach. He said it was necessary for the bills to be in his name or the name of his company, because otherwise the suppliers would not provide the discounts. He told HD when to send invoices. His company would send an invoice to HD one or two days after HD had received the funds, or when Mr or Ms Leach advised him they had approved payment. The majority of the funds went into the kitty, apart from a minimal amount kept by HD. (paragraph numbers and footnotes omitted)

1. Mr Forte's evidence during the final hearing was consistent with his above evidence.
2. The invoices which were paid out of the kitty were in the names of Mr Forte, Resiservices or Building Renewals Pty Ltd. Mr Forte said that at all relevant times:

(b) he was the sole director of Building Renewals Pty Ltd and the sole shareholder was himself in the capacity as trustee for a family discretionary trust.

1. Mr Forte said he made the decisions regarding the payment of invoices from the kitty held by Business Renewals Pty Ltd. Mr and Ms Leach were kept informed via spreadsheets which recorded in detail the anticipated and actual costs of construction. Mr Forte conceded that Mr and Ms Leach received advice of the actual costs after they had been incurred.
2. Mr Forte said he did not supervise contractors because he was rarely on site. That was contradicted by emails in which Mr Forte:

(a) said he was on the site multiple times per day;[22]

(b) asked Mr and Ms Leach to not communicate directly with contractors;[23] and

(c) asked Mr and Ms Leach to let him 'run the job as he sees best'.[24]

1. On several occasions during the hearing, Mr Forte was asked to explain how his role had differed from what a builder would have done pursuant to a cost plus or open book arrangement. Mr Forte's responses were either vague or pointed to differences as compared to a fixed price contract.
2. Mr Forte suggested his charging of a fixed fee meant that there could not have been a costs plus contract. On that point Mr Forte was plainly contradicted by the definition of a costs plus contract in s 3 of the HBC Act.
3. We are satisfied that the project management agreement operated in effect as a costs plus contract, pursuant to which Mr Forte performed the role of the builder.
4. However, it was not disputed that:

(a) Mr Forte requested (or demanded) that Mr and Ms Leach take responsibility for certain aspects of construction of the house; and

(b) Mr and Ms Leach as a result directly engaged and supervised contractors.

1. Mr and Ms Leach said this only occurred because the escalating costs of construction had caused them to run out of money, which in turn caused Mr Forte to instruct contractors to stop work. They were desperate to move into the house and thus were obliged to arrange some matters directly.
2. We accept the explanation of Mr and Ms Leach as it relates to the later stages of construction, noting it does not account for their activities in the early stages of construction.
3. Even if we entirely accepted the explanation, we do not consider Mr Forte could be considered to have performed building works which Mr and Ms Leach directly undertook.
4. Following is a consideration of the evidence in relation to each complaint item. Unless indicated otherwise, we are satisfied the relevant building work was performed by Mr Forte.

Garage ceiling - CC 1108/2023 item 34 and CC 57/2024 item 2

1. The complaints against HD and Mr Forte in relation to the garage ceiling are expressed in identical terms:[25]

Garage ceiling not finished - ceiling lining not installed.

1. The Waters report states that the lining to the ceiling of the garage had not been completed. The report notes the sectional door guides would need to be removed to permit the installation of the ceiling and then replaced.
2. The absence of a garage ceiling was not disputed by HD and Mr Forte. Mr Forte said a ceiling in the garage was not necessary. There had been a difference of opinions regarding installation of the ceiling, and so he had used conduit for the electrical cabling. Ultimately the ceiling was not installed because Mr and Ms Leach ran out of money.
3. Mr Leach initially stated the ceilings were included in the specifications annexed to the 2020 building contract (Specifications) and thus ought to have been installed. Later, Mr Leach conceded that he and Ms Leach had agreed to install the garage ceiling themselves. He said this was not because they wanted to do so, but because Mr Forte was refusing to do any further work.
4. We do not accept the Specifications are relevant to a determination of this matter as a consequence of our finding that a HBWC did not exist between HD and Mr and Ms Leach. Furthermore, the Specifications are inconsistent with the plans approved by the City of Stirling on 2 July 2021 (the DA plans) and subsequent amendments to those plans.
5. We are not satisfied the absence of a ceiling in the garage represents faulty or unsatisfactory works, or a failure to carry out works in a proper and proficient manner. Our reasons are:

(a) We accept the evidence that Mr and Ms Leach agreed that they rather than Mr Forte would install the ceiling. This is consistent with the Waters report that wiring had been installed in conduit.

(b) The installation of the conduit suggests the garage was compliant with relevant building standards, in that a ceiling was not required to isolate exposed wiring.

(c) Mr Leach alleged other wiring in the garage was exposed. We do not accept that evidence. Firstly, there is no photographic or other evidence of the exposed wiring. Secondly, we would expect the Waters report to identify exposed wiring as a fault and it does not.

(d) Therefore, the evidence suggests the garage works performed by Forte met the required standard.

(e) The non-installation of the garage ceiling was removed from the scope of the work to be undertaken by Mr Forte as a result of Mr and Ms Leach agreeing to install the ceiling.

1. Complaint items 35 and 3 are expressed in identical terms in each proceeding as follows:[26]

Unfinished work - Loft: The Plasterboard Lining was not fully installed to the Brickwork. Stud work and Raking Ceiling to this area unfinished.

1. The Waters report states the plasterboard lining had not been fully installed to the brickwork, stud work and raked ceiling of the loft.
2. Mr Leach conceded that he and Ms Leach had agreed to defer installation of the plasterboard. He said they had no choice. We accept his evidence.
3. Mr Forte contended it was not necessary to install plasterboard in the loft.
4. We accept the evidence Mr and Ms Leach agreed to engage contactors directly to install the plasterboard, and therefore those works were removed from the scope of work to be performed by Mr Forte. For this reason, we are not satisfied the non-installation of the plasterboard represents faulty or unsatisfactory works, or a failure to carry out works in a proper and proficient manner by Mr Forte.
5. These items are dismissed.

1. Complaint items 36 were expressed as follows:[27]

Exposed Services. Water Service and Waste Pipes have been installed post preliminary Tube Stage and have been left exposed.

1. The description of complaint item 4 is blank. However, Mr and Ms Leach and Mr Forte in the materials lodged with the Tribunal and in the final hearing agreed the description of complaint item 36 applied equally to complaint item 4. We therefore accept that to be the case.
2. The Waters report states that the water service and waste pipes had been left exposed and recommended the construction of a bulkhead with an access door or lid to conceal the pipes.
3. Mr and Ms Leach confirmed they did not allege the plumbing was faulty, but simply that it should have been concealed by plasterboard.
4. Mr Forte stated there was no requirement the pipes be concealed and this was simply an aesthetic preference on the part of Mr and Ms Leach.
5. We are not satisfied it was necessary to conceal the pipes behind plasterboard. A more usual practice would have been to install the pipes in the wall cavity. There was insufficient evidence for us to ascertain whether the failure to do so was a fault on the part of Mr Forte, because the evidence did not indicate why the pipes were placed in that location, when the relevant decision to do so had been made or by whom.
6. These items are dismissed.

Wine cellar - CC 1108/2023 item 37 and CC 57/2024 item 5

1. As against HD, this complaint was described as:[28]

Exposed water and electrical services are unsightly and recommend concealing with a False Ceiling

1. The above description represents the totality of the observations and recommendations contained in the Waters report regarding this issue.
2. The description of complaint item 5 is blank. However, Mr and Ms Leach and Mr Forte in the materials lodged with the Tribunal and in the final hearing agreed the description of complaint item 37 applied equally to complaint item 5. We therefore accept that to be the case.
3. Mr and Ms Leach said they had not realised the complaint referred to electrical services, and their concerns related only to the exposed water pipes. Mr and Ms Leach argued that further penetrations in the external wall or floor to relocate the pipes risked compromising the waterproofing. They argued it was more appropriate to install a ceiling and sought the quoted cost of $1,432.20 including GST.
4. Mr Ayad initially said the pipes were 'not right' and later said they were fine for being in the undercroft. Mr Forte said he did not disagree the pipes were unsightly but that it was not necessary to install a ceiling underneath the suspended slab.
5. In our view, there is nothing inherently deficient in the installation of exposed pipework in a cellar, particularly where the plans do not include a ceiling or plasterboard to the walls. However, in this instance the two pipes are not parallel, which renders them unsightly. We do not consider it proper and proficient work to install exposed pipes in that manner.
6. There is no evidence of the likely cost to make the pipes parallel. For that reason, we will make orders for Mr Forte to undertake remedial work.
7. The complaint against HD is dismissed on the basis it did not perform the regulated building service.

Wine cellar - CC 1108/2023 item 38 and CC 57/2024 item 6

1. As against HD, the complaint is that formwork had been left in place in the wine cellar. The description of the complaint against Mr Forte is blank. Mr and Ms Leach and Mr Forte in the materials lodged with the Tribunal and in the final hearing agreed the description of complaint item 38 applied equally to complaint item 6. We therefore accept that to be the case.
2. The Waters report contains a photograph of the formwork and states simply that it had been left in place and requires removal. In the hearing Mr and Ms Leach confirmed no quotations had been obtained in relation to this item and they therefore sought an order for remedial works.
3. Mr Ayad stated that whoever had installed the formwork for the concrete, was responsible for the removal of the formwork. Mr Forte initially claimed that Mr and Ms Leach should have removed the formwork but conceded that the rest of the formwork had been removed by his formwork contractor.
4. We are satisfied the evidence establishes that a piece of formwork is located in the wine cellar. We are further satisfied the failure to remove the formwork was faulty and unsatisfactory.
5. For this reason, we find for Mr and Ms Leach as against Mr Forte and make a works order for the removal of the formwork and undertaking remedial plastering and painting to the affected areas. The complaint against HD is dismissed on the basis it did not perform the regulated building service.

Wine cellar - CC 1108/2023 item 39 and CC 57/2024 item 7

1. This complaint is expressed in identical terms in each proceeding:[29]

Rendered or hard plastered surfaces are defective as they do not confirm [sic] to the documented surface sample and/or description to this area.

1. The above description represents the totality of the observations and recommendations contained in the Waters report regarding this issue.
2. Mr Forte rejected liability, though his basis for doing so was unclear.
3. The Waters report did not explain what was meant by 'documented surface sample and/or description'. The alleged defects are not visible in the photograph contained in the Waters report. Nor were the alleged defects made clear in the evidence of Mr and Ms Leach.
4. For the above reasons, we are not satisfied the plastered surfaces in the wine cellar are faulty or unsatisfactory, or that they were not installed in a proper and proficient manner. We dismiss the complaints against HD and Mr Forte.

1. This complaint is expressed in identical terms in each proceeding:[30]

Poor workmanship during the installation of the stairs. These stairs are at risk of deterioration over time which could result in safety concerns. Width of stair is not as wide as documented to plans.

1. The above description repeats the opinion regarding the stairs expressed in the Cenit report, which also recommends the stairs be demolished and replaced. The photographs of the stairs contained in the Cenit report depict concrete steps which are uneven and the risers contain irregularities and cracking.
2. Mr and Ms Leach sought a monetary order in the sum of $16,148 including GST for the removal and replacement of the concrete stairs.
3. Mr Forte initially stated the stairs were executed in accordance with the original drawings and are adequate. Later in the hearing, Mr Forte said the stairs are not 'to code' but were installed as a temporary measure for access during the build and if Mr and Ms Leach had not terminated the contract early, they would have been replaced.
4. We do not accept the explanation of Mr Forte. The stairs do not appear to have been constructed in a manner that would suggest they were a temporary structure. Further, it appears unlikely this was incomplete work because:

(a) the evidence suggests the house was close to completion when Mr and Ms Leach purported to terminate the 2020 building contract; and

(b) Mr Forte did not explain what had to that point prevented the installation of the permanent stairs.

1. We are satisfied the concrete steps to the store were not installed in a proper and proficient manner and that they are faulty and unsatisfactory. We accept the Cenit report that the appropriate repair is removal and replacement of the stairs. However, the quote submitted by Mr and Ms Leach does not contain sufficient detail for us to be satisfied that the amount claimed is reasonable.
2. For these reasons we find for Mr and Ms Leach as against Mr Forte and make a works order for the removal and replacement of the concrete stairs. The complaint against HD is dismissed on the basis it did not perform the regulated building service.

East side elevation - CC 1108/2023 item 41 and CC 57/2024 item 9

1. This complaint is expressed in identical terms in each proceeding:[31]

Retaining Wall 1 (RW1) has not been installed to the length documented on the structural drawings and hence there is a section of boundary adjacent to the cellar stairs that requires retaining

1. The above description reproduces part of the Cenit report in relation to this issue. The report goes onto to suggest that depending on the adequacy of the grout injection which stabilised the ground at the eastern boundary, temporary retaining may be required during construction of the retaining wall. Annexed to the Cenit report is an annotated page from engineering drawings which identifies the missing section of retaining wall.
2. A brief description of the site conditions may be useful. Mr Forte's evidence (which accept because it was supported by photographs and there was no disagreement by the other parties) was:

(a) The site slopes so that the ground level at the front is approximately 3 metres higher than at the rear.

(b) The store and wine cellar are below the level of the ground at the point they were constructed.

(c) There was an excavation, approximately 3 metres deep, in order to pour the slab for the store and wine cellar.

(d) The excavation process caused subsidence on the boundary. Mr Forte arranged for urgent grout injections to stabilise the excavation. The grout injections were not suitable for, nor intended to be, a permanent solution.

1. The engineering plans indicate that the external walls of the store and wine cellar were to be constructed as retaining walls. Along the boundary, Retaining Wall 1 was to extend from an external wall of the store, past the concrete steps leading out of the store and towards the rear boundary. We estimate from the DA plans that from the base of the stairs (and doorway into the store), Retaining Wall 1 should have been over four metres long.
2. Mr Forte agreed that part of Retaining Wall 1 extending from the store had not been installed. Mr Forte stated it was not required. He had instead agreed with Mr Lucchesi that it was sufficient for the gap between the stairs and the boundary to be filled with concrete and otherwise to backfill the area with sand. Mr Forte said this agreement was entirely verbal, and the engineering plans were not altered because he intended to seek retrospective approval at the conclusion of construction.
3. Mr Forte said this was incomplete work, because the concrete had not been installed pending other works and that Mr and Ms Leach's termination of contract prevented him from completing outstanding tasks such as this. We asked Mr Forte to explain what had prevented the installation of the concrete, but his response was vague.
4. Mr Ayad, after hearing Mr Forte's explanation and observing the photographs of the excavation, expressed concern and suggested Mr and Ms Leach immediately engage an engineer to investigate the safety of the site.
5. We consider Mr Forte, as the provider of the regulated building service, had an obligation to comply with the engineering drawings. Any departure should have been documented by amended engineering drawings. Furthermore, in our view the evidence does not support Mr Forte's contention that the works were incomplete.
6. We are satisfied the failure to install the full length of Retaining Wall 1 as shown on the engineering plans was faulty and unsatisfactory. Mr and Ms Leach did not lodge quotes for the cost of performing the necessary works and accordingly we make orders that Mr Forte is to install the missing portion of Retaining Wall 1.
7. The complaint against HD is dismissed on the basis it did not perform the regulated building service.

Store - CC 1108/2023 item 42 and CC 57/2024 item 10

1. These items each complain a section of slab in the store had been removed. Mr and Ms Leach in the hearing said that from the very first plans, it had been envisaged that a toilet and basin were to be installed on the same level as the store and wine cellar. Therefore, appropriate arrangements should have been made for the provision of those services to the lower level, without the need to later cut a hole in the slab.
2. The Cenit report recommended that part of the slab be reinstated, including the installation of galvanised dowel bars, steel mesh and bond breaker at the location of the pump lid.
3. Mr Forte's responses to the Scott Schedule included the following:[32]

The slab in the store had to be removed with the full consent of the Applicants as the sewer line was higher and a collection tank and sewage pump had to be installed. The Applicants deferred installing a chequer plate on it or pouring concrete as they were not sure and were in between the two solutions. What they did after termination, we had nothing to do with.

1. During the hearing, Mr Forte said the hole in the slab did not affect the structural integrity of the house and it was simply a question of how the floor was to be finished whilst still allowing the tank to be accessed or removed. We accept Mr Forte's evidence on this point because the Cenit report did not raise concerns regarding the structure and it was not clear whether Cenit had been informed the tank may in the future need to be removed.
2. In relation to the finishing of the floor, Mr Forte stated this also was work which Mr and Ms Leach had agreed to undertake. Mr Forte referred to the following emails:[33]

(a) By Mr Leach to Mr Forte on 2 August 2022 at 5.24 pm:

We've found a tiler that can start on the 8th. What is the plan for filling the plumbing channels in the lower area?

(b) By Mr Forte to Mr Leach on 2 August 2022 at 6.00 pm:

The tiler should fill them up around the pipes as part of the screed. Of course you need to decide where your falls will be in this area.

At the store I suggest you fill above the tank and create a screed with an opening of 400x400 above the tank middle neck access with sides in mass concrete mix. The sides can be finished same as the floor. Happy to meet the tiler on the day to explain further.

(c) By Mr Leach to Mr Forte on 2 August 2022 at 6.58 pm:

Ok, thanks. I like the board or plate over the tank idea. From what I understand, floors fall to the floor waste, is this correct? Are there floor wastes in these areas? That might make a difference.

Thank you.

(d) By Mr Forte to Mr Leach on 2 August 2022 at 9.47 pm:

There is one in the cellar and the grate in the store.

1. Mr Leach did not appear to dispute they had accepted responsibility for completing the floor in the store, including addressing the hole in the slab, saying that at that stage they agreed with whatever Mr Forte said in an effort to try to complete the house.
2. We accept the evidence of Mr Forte and Mr Leach that the flooring was to be installed by Mr and Ms Leach. Therefore, the non-completion of the flooring was not faulty or unsatisfactory work on the part of Mr Forte.
3. In relation to the hole in the floor, we are not satisfied the evidence established the existence of the hole itself represented work which fell short of the required standard.
4. Therefore, these items are dismissed.

Garage stairs - CC 1108/2023 item 43 and CC 57/2024 item 11

1. In relation to these items, Mr and Ms Leach complain there is visible honeycombing in the stairs leading out of the west side of the garage. The Cenit report identified the honeycombing as a defect and recommended concrete repair mortar be applied.
2. Mr Forte appeared to agree, stating that if the building contract had not been terminated, he would have arranged for the contractor who had poured the concrete to repair the honeycombing to the garage stairs free of charge.
3. The engineering plans suggested, and Mr Forte confirmed, the garage stairs consisted of concrete and structural steel. As a result, if the honeycombing were left unaddressed, the structural steel may become exposed to air and water.
4. We are satisfied the garage stairs were constructed in a manner that was not proper and proficient and which was faulty and unsatisfactory. There was no evidence regarding the costs of remediating the honeycombing. For these reasons, we order that Mr Forte the works recommended by Cenit to repair the honeycombing to the garage stairs.
5. The complaint against HD is dismissed on the basis it did not perform the regulated building service.

West side of building - CC 1108/2023 item 44 and CC 57/2024 item 12

1. This complaint is expressed in identical terms in each proceeding:[34]

Exposed Concrete Footing and SlabStrip footing does not appear to step to follow the wall line at the SF1 - SF2 interface. The footing to this area appears to be installed as SF1 footing rather than SF2 as there is no concrete filled blockwork visible between the footing and the footing. This footing has also been installed higher than the ground level as a result of not stepping the footing/following the correct detail.

1. The above description was clearly drawn from the Cenit report, which is expressed in very similar terms. The Waters report also considers these footings, stating that they had not been installed in accordance with the engineer's drawings and exposed reinforcement required remedial work.
2. Mr Forte in his written submissions stated:[35]

Slabs and footings were poured at the levels as per the drawings. Applicants changed their mind several times about the passage finish and levels, from concrete to exposed gravel to pavers to grass. The proof is that there are no issues with levels on the opposite side as they were poured to the levels on the drawings. The contract was terminated prematurely and the Applicants did this work.

(a) The footings and slab were installed correctly and in accordance with the levels as defined in the survey.

(b) The footing was not installed in accordance with the engineering drawings. It would have required more time and more cost to have engaged a contractor to install the formwork to create the recessed portion of the wall. So instead, he had the concreter continue the strip footing in a straight line.

(c) This was discussed with Mr and Ms Leach and they agreed because removing the recess made the room bigger.

(d) He considered strip footing SF1 to be superior to strip footing SF2 because the depth of the concrete was greater.

(e) It had not been his intention to leave the works in that condition. The area (or passage) between the external wall of the house and the boundary fence was to have been finished in concrete and that concrete would have covered the exposed footing. These works were not completed because Mr and Ms Leach terminated the building contract. Therefore, he considered the work to be incomplete (rather than defective work) and the responsibility of Mr and Ms Leach to complete.

(f) The failure of Mr and Ms Leach to install the concrete to cover the exposed footing caused the cracking (the subject of the next complaint).

(g) The opinion expressed in the Cenit report cannot be relied upon because Mr Lucchesi and Mr McDonald had no knowledge of the history or what happened on the site and did not go underground to examine the footings and slab. Therefore, the report was simply speculation.

1. We are not satisfied as to Mr Forte's explanation.

(a) There is no independent evidence of the level to which the footings were poured, whether the level was correct nor the relevance the level has to the complaint.

(b) Other parts of the external walls are not simple straight lines and would have required more complex formwork. It is not consistent for Mr Forte to have engaged a form worker for other parts of the footings but not the West wall.

(c) It is not necessary for us to reach a conclusion regarding the differences between the different kinds of strip footings specified in the plans. Any proposed change to the footings should have been approved by the engineer and recorded in amended engineering drawings. There is no evidence Mr Forte obtained such approval.

(d) Mr Forte did not produce expert engineering evidence that the footings installed were appropriate for that location. We are not satisfied Mr Forte's verbal assurances outweigh the concerns contained in the Cenit report.

(e) We do not agree with Mr Forte's criticisms of the Cenit report. We consider the faults visible in the photographs and described in the report a sufficient basis for the engineers' conclusions.

(f) We do not accept Mr Forte's evidence that the footings were supposed to have been covered with concrete, because:

(i) Mr Forte gave evidence the reason the concrete 'passage' was not installed was because Mr and Ms Leach had not decided whether the area was to be grassed, paved or concreted over.

(ii) Neither the DA nor engineering plans indicate that area was to have been covered in concrete.

1. We are satisfied the exposure of the footing and its failure to be constructed accordance with the engineering plans was not proper and proficient work by Mr Forte and that it was faulty and unsatisfactory.
2. The Cenit report recommended a soil stabilised grout block be inserted below the slab, the installation of a panel and post retaining wall, application of a waterproofing membrane to the exposed footing and placement of clean fill to cover the footings.
3. Mr and Ms Leach lodged a quotation in the sum of $13,200 for the installation of three concrete piles to underpin the footings and slab. There were no quotations for the remainder of the recommended works. It appears Mr and Ms Leach installed some limestone blocks on the Western boundary in the approximate location of the exposed footings, however it is unclear whether the blocks will be adequate to perform the role of the retaining wall recommended in the Cenit report.
4. Given the seriousness of the works to be performed, the potential ambiguity as to liability if any issues arise in the future and the potential advantages of orders pursuant to s 36(1)(a) of the BSCRA Act,[36] we consider it most appropriate that Mr Forte be ordered to perform the remedial works recommended by the Cenit report.
5. The complaint against HD is dismissed on the basis it did not perform the regulated building service.

Master bedroom - CC 1108/2023 item 45 and CC 57/2024 item 13

1. In each proceeding, Mr and Ms Leach complain that the defects identified in the preceding item had caused:[37]

...cracking/deterioration to the slab internally as the internal leaf of wall is now bearing over the 100mm thick ground slab.

1. The above description repeats the concern contained in the Cenit report. The Waters report also identifies this cracking as a defect. The photographs contained in the Cenit report suggest the footings and the wall above do not follow the same line. The photographs in both the Cenit and Waters reports show a crack running the length of the recessed portion of the wall.
2. Mr and Ms Leach stated the external wall is not fully supported by the footings, which was causing the slab to deteriorate and cracking to the walls.
3. Mr Forte denied such was the case, stating:

(a) The cracking in the slab was not more than 2 millimetres in width and therefore within tolerances.

(c) The cracking could have been caused by normal settling.

(d) Had Mr and Ms Leach poured the concrete 'passage' over the exposed footings; the cracking would not have occurred.

(e) No one had checked the width of the footings and that the footings were in fact supporting the wall appropriately.

1. We accept Mr Forte's evidence that he was responsible for the construction of the footings and wall. However, without independent expert evidence we cannot accept his opinion regarding the causes of the cracking, nor his assertion that the footings were supporting the wall. Particularly so given that Mr Waters, contrary to Mr Forte's assertion, measured the width of the crack as between 4-10 millimetres.
2. We accept the Waters and Cenit reports. We are therefore satisfied the footing is not adequately supporting the external wall of the master bedroom and the installation of the footing was not proper and proficient work by Mr Forte and the footing is faulty and unsatisfactory.
3. Mr and Ms Leach suggested the repairs recommended by Cenit in relation to the above complaint item 12 would address complaint item 13. With respect we disagree. The Cenit report addressed stabilisation of the footing, but did not address repair of the crack to the slab. Mr Forte will therefore be required to repair the concrete slab.
4. The complaint against HD is dismissed on the basis it did not perform the regulated building service.

Roof void - CC 1108/2023 item 46 and CC 57/2024 item 14

1. In each complaint item, Mr and Ms Leach claim there are no plasterboard backing boards to the ceiling and wall sheet joins in the roof void. They sought an order for remedial works. The claim is supported by Waters report, including photographs which illustrate the absence of backing boards.
2. Mr Forte agreed the backing boards had not been installed in this location. He denied liability on the basis that this was work in progress which has not been completed. However, it was put to Mr Forte that backing boards should have been installed before the walls and ceiling were flushed and sanded ready for painting. In response, Mr Forte said backing boards were not necessary because he had used 13 millimetre plasterboard sheets (rather than 10 millimetre sheets) and the framing members were spaced with 900 millimetre centres.
3. We accept Mr Forte's evidence that the walls and ceilings were flushed and ready for painting. On that basis we do not accept this was incomplete work because backing boards should have been installed prior to readying the walls and ceilings for painting.
4. Even if we accepted Mr Forte's evidence that 13 millimetre sheets were used, we do not accept this obviated the need for backing boards. Particularly given the framing, at 900 millimetre centres, was too widely spaced and increased the potential for movement or sagging of the sheets.
5. We are satisfied Mr Forte was responsible for the installation of the plasterboard sheets in the roof void location, and that the failure to install backing board was faulty and unsatisfactory. Therefore, we make orders for Mr Forte to repair the plasterboard sheets.
6. The complaint against HD is dismissed on the basis it did not perform the regulated building service.

House slab - CC 1108/2023 item 47 and CC 57/2024 item 15

1. In relation to both complaint items, Mr and Ms Leach complain the concrete slab to the house was so uneven, extensive levelling had been required before flooring could be installed. They said they were unaware of this until they arranged for the timber flooring to be installed and so had only the invoice of the flooring contractor which charged $950 plus GST for 'floor prep'.[38]
2. Mr Forte denied the claim on the basis the concrete slab was within tolerances applicable for the subsequent installation of tiles or carpets.
3. We are not satisfied the evidence established the floor slab was uneven, nor the degree and extent of any unevenness. Therefore, these items are dismissed.

Alfresco pillars - CC 1108/2023 item 48 and CC 57/2024 item 16

1. In each complaint item, the issue is described as follows:[39]

Alfresco pillars due to poor workmanship and not finished off. Exposed tie bar, cabling and brackets.

1. There are no expert reports in relation to this complaint. Mr and Ms Leach referred the Tribunal to photographs which depict what appear to be angled structural brackets which are not attached to the alfresco pillars. Instead, the brackets are affixed to the middle or upper portion of the beams running across the pillars. A tie bar and cable also appear to run from the top of each pillar into the ceiling of the alfresco.
2. Mr and Ms Leach agreed they had arranged for the installation of the ceiling to the alfresco. They conceded they were not aware of any structural issue regarding the pillars, but considered the brackets, bars and cables unsightly. They sought a monetary order in the amount of $2,255, which was the cost quoted to box the space between the pillars and ceiling in timber to hide the brackets, bars and cables.
3. Mr Forte denied this claim on the basis that finishing the tops of the pillars should have been done at the same time as the alfresco ceiling and thus was the responsibility of Mr and Ms Leach.
4. We are satisfied the exposed appearance of the brackets, bars and cables is unsatisfactory. Further, we are satisfied these are matters which should have been addressed as part of the installation of the pillars, beams and roof to the alfresco and would not ordinarily be addressed as part of installing the ceiling. On this basis, we consider the unsatisfactory works were performed by Mr Forte and not Mr and Ms Leach.
5. However, we are not satisfied it is necessary to affix timber boxes to the tops of the pillars. On the basis of evidence before us, it appears sufficient to simply move the brackets to the top of the pillars and cut off the tie bars. We will therefore make an order for Mr Forte to perform the necessary works.
6. The complaint against HD is dismissed on the basis it did not perform the regulated building service.

1. For the reasons described above, we are satisfied it is reasonable and appropriate to make building remedy orders in relation to complaint items 5, 6, 8, 9, 11, 12, 13, 14 and 16 in the proceeding CC 57 of 2024. The balance of the complaint items in proceeding CC 57 of 2024 and all of the complaint items in CC 1108 of 2023 are dismissed.

1. 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 and the proceedings are dismissed.

1. Pursuant to s 38(1)(a) and s 36(1)(a) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), in relation to the following items of complaint, by 30 April 2026 the respondent must complete the specified works:

(a) Item 5 - wine cellar - The respondent is to re-fix the exposed pipes so that they are sitting parallel to each other without any kinks.

(b) Item 6 - wine cellar - The respondent is to remove the formwork, and then plaster and paint the area where the formwork has been removed.

(c) Item 8 - store - The respondent is to install new concrete stairs (including the removal and disposal of the existing concrete stairs).

(d) Item 9 - east side elevation - The respondent is to install the missing portion of Retaining Wall 1 in accordance with the approved engineering drawings.

(e) Item 11 - garage stairs - The respondent is to remedy the honeycombing to the garage stairs.

(f) Item 12 - west side of building - The respondent is to remedy the footings in the manner recommended in the Cenit report dated 2 March 2023.

(g) Item 13 - master bedroom - The respondent is remedy the cause and effect of the cracking to the concrete slab.

(h) Item 14 - roof void - The respondent is to install backing boards to the plasterboard sheets.

(i) Item 16 - alfresco pillars - The respondent is to move the metal brackets down to the top of the pillars and re-fix them accordingly. The metal tie downs are to be cut off to an appropriate length. These works are to be in compliance with the relevant construction details and requirements.

1. The works specified above must be carried out in a proper and proficient manner including protecting adjacent surfaces and making good, affected surfaces, including matching as close as practicable existing coatings and materials.
2. Pursuant to s 38(1)(b) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), in relation to complaint items 2, 3, 4, 7, 10 and 15, the Tribunal declines to make a building remedy order and those items are dismissed.

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

[1] Leach and HA-Decgroup Pty. Ltd. [2025] WASAT 78.

[2] Noting the relevant contractual complaints concern only HD. Item 1 of the complaint lodged by Mr and Ms Leach against Mr Forte contained contractual allegations but was not accepted by the Building Commissioner and was not referred to the Tribunal.

[3] Owners of Island Apartments Strata Plan 52597 and Pindan Pty Ltd [2018] WASAT 2 (Island Apartments) at [67].

[4] Gemmill Homes Pty Ltd v Sanders [2018] WASC 179 at [133] and [134].

[9] Raftland Pty Ltd v Federal Commissioner of Taxation [2008] HCA 21; 238 CLR 516 at [151]; See also Lee and Holmes [2020] WASAT 108 at [20].

[10] Millar v Commissioner of Taxation [2016] FCAFC 94, (2016) 243 FCR 302 at [82].

[11] State Administrative Tribunal Act 2004 (WA), s 9(a).

[12] See [109] - [110] and [143] of the preliminary decision.

[13] Macquarie Dictionary Online, Macquarie Dictionary Publishers, an imprint of Pan Macmillan Australia Pty Ltd. Retrieved on 17 September 2025 from www.macquariedictionary.com.au.

[14] Suburban & Country Formwork Contractors Pty Ltd and Rawlinson [2015] WASAT 66 at [14].

[16] BSCRA Act, s 3 and Building Act 2011 (WA), s 3.

[21] Preliminary decision at [79] - [81].

[25] Exhibit 1, page 35; Exhibit 2, page 5.

[26] Exhibit 1, page 35; Exhibit 2, page 5.

[27] Exhibit 1, page 36; Exhibit 2, page 5.

[29] Exhibit 1, page 36; Exhibit 2, page 5.

[30] Exhibit 1, page 36; Exhibit 2, page 6.

[31] Exhibit 1, page 36; Exhibit 2, page 6.

[34] Exhibit 1, page 36; Exhibit 2, page 6.

[36] Brooks and Gransden Building Company Pty Ltd [No 2] [2021] WASAT 86 at [14] - [17].

[37] Exhibit 1, pages 36 - 37; Exhibit 2, page 6.

[39] Exhibit 1, page 37; Exhibit 2, page 7.