1. The applicant also alleges that the remedial works performed by the respondent were not carried out in a proper and proficient manner and were faulty and/or unsatisfactory because they failed to prevent water ingress in the areas where they were performed and also because they failed to follow either the original E-TEC scope of works and/or the scope of works identified in the 19 November 2015 letter (page 6 of the applicant's Submission of Further Information dated 25 April 2019).
2. The applicant claims the cost of remedial works required in order to prevent further water ingress in the amount of between $700,000 and $900,000 (para 37 of the applicant's statement of issues, facts and contentions).
3. In addition, the applicant contends that the respondent, during the performance of its remedial works, caused or permitted grout and cement slurry to enter the basement entry carpark channel drain causing a blockage to the stormwater system which has resulted in multiple instances of stormwater flooding of the basement carpark, the storeroom area and the lift servicing the basement carpark (para 43 of the applicant's statement of issues, facts and contentions). In respect of this complaint, the applicant seeks from the Tribunal a building remedy order for the payment of $75,089.95 comprising costs already incurred by the applicant in investigating and taking steps to mitigate the flooding and also the costs to satisfactorily remedy the complaint (para 48 of the applicant's statement of issues, facts and contentions).

1. The respondent contends that none of the remedial work performed by it has been alleged to have been carried out in a manner which is not proper and proficient, or which is faulty or unsatisfactory. It says that the complaint remains the same complaint that the applicant brought against Psaros Constructions in 2012 which was compromised by those parties. That is, that the basement area to the Concourse Apartments was not constructed in a proper and proficient manner and/or was faulty or unsatisfactory due to water ingress. The respondent contends that it did not construct the Concourse Apartments and therefore is not responsible for the original complaint, and nor was it a party to the Heads of Agreement which ultimately settled the earlier proceeding.
2. In addition, the respondent submits that if the applicant is alleging that the Heads of Agreement has been breached, then again that is not a complaint that can be brought against the respondent on the basis that it was not a party to the agreement and the agreement has not been novated to it.
3. Further, the respondent submits that if the complaint is in effect a complaint in respect of the scope of works which was developed by E­TEC following the execution of the Heads of Agreement by the applicant and Psaros Constructions, it was not a regulated building service performed by the respondent.
4. In relation to the complaint regarding storm water drain flooding, the respondent submits that the cause of the flooding relates to a defect in the original construction of the Concourse Apartments by Psaros Constructions based on a report dated 3 August 2017 from Banhams WA which identified that the flooding was caused by the pipework not penetrating the below ground Atlantis Cell (para 56 of the respondent's statement of issues, facts and contentions). The respondent contends that there is no evidence to support a position that remedial work performed by it has resulted in flooding of the storm water drain. Therefore the respondent submits that the complaint ought to be dismissed by the Tribunal on the basis of a finding that the regulated building service being complained of is the original construction performed by Psaros Constructions.

What is the regulated building service or services the subject of the complaint?

1. The Tribunal gave some latitude to the applicant to address the issue of what regulated building service or services was being complained of, in circumstances where a number of parties had been involved in the remedial works at various stages.
2. The applicant was initially legally represented whilst filing submissions on this point, and then became unrepresented and continued to file further lengthy submissions attaching documents in relation to this issue. It has therefore been a difficult process to clearly identify the regulated building services or services complained of.
3. Having given careful consideration to all of the various submissions filed by the applicant, together with a consideration of the expert reports and relevant documentation, the Tribunal has found that the applicant complains of the following regulated building service/s:
   • (a) The respondent designed a scope of works set out in the 19 November 2015 letter and performed the designed scope of works which was required to encompass all works necessary to prevent water ingress from the concourse area to the basement area. The design and the building work which followed the design constitutes a regulated building service which was not carried out in a proper and proficient manner or which is faulty and/or unsatisfactory because the design, and thus the building work itself, was deficient because it did not include all works necessary to prevent water ingress (para 1 of applicant's summary of regulated building services dated 9 April 2019);
   • (b) Alternatively to (a) above, the respondent designed a scope of works set out in the 19 November 2015 letter which intended Areas 1, 2 and 3 to be free from water ingress and implemented the design. Water continues to penetrate those specified areas and therefore the designed scope of works and the performance of the designed scope of works constitutes a regulated building service which was not carried out in a proper and proficient manner or which is faulty and/or unsatisfactory (annexure M to the applicant's statement of issues, facts and contentions and annexure E to the applicant's submission of further information dated 25 April 2019);
   • (c) The respondent failed to undertake the remedial work in accordance with the scope of works and specification stipulated by E-TEC and/or as required by the Heads of Agreement and in particular failed to carry out the removal of tiles and structures and the replacement thereof and the instalment of a waterproof membrane known as Strataflex (para 2 of applicant's summary of regulated building services dated 9 April 2019) and therefore the regulated building service was not carried out in a proper and proficient manner or was faulty and/or unsatisfactory; and
   • (d) The respondent failed to perform the remedial work in a proper and proficient manner by allowing concrete slurry to block and flood the storm water drains (para 3 of applicant's summary of regulated building services dated 9 April 2019).

1. The legal principles are now well established in respect of the matters to which the Tribunal has regard when determining which entity carried out a regulated building service. The leading authority in this regard is Shami and Teo [2017] WASAT 73 (Shami).
2. Effectively the position is as follows:

(a) An entity has carried out the regulated building service if it has the over­all responsibility for the entirety of the works or the entirety of the project, rather than individual elements thereof; Shami at [47];

(b) The entity who carries out the regulated building service has the role or responsibility of over­seeing the project through to its completion; Shami at [48]; and

(c) The entity who carries out the regulated building service does not need to physically carry out the individual elements of the building work itself. It can arrange for others to perform the mechanics of the regulated building service; Shami at [48].

1. A determination as to who carried out a particular regulated building service therefore involves a careful consideration of the relevant facts.
2. As to what constitutes a regulated building service, this is defined in s 3 of the BSCRA Act as including:

a building service carried out by a registered building service provider or an approved owner-builder[.]

1. 'Building Service' is defined in s 3 as including:

building work (as defined in the Building Act 2011 section 3)[.]

1. 'Building work' is defined in s 3 of the Building Act 2011 (WA) (Building Act) as including:

(a) the construction, erection, assembly or placement of a building or incidental structure; or

(b) the renovation, alteration, extension, improvement or repair of a building or an incidental structure[.]

1. Mitchell J in Diploma Construction (WA) Pty Ltd and South Central WA Pty Ltd [2015] WASC 289 (Diploma Construction) considered whether design in and of itself can constitute a regulated building service or building work. That decision found that design in and of itself, absent any building work (as defined in s 3 of the Building Act) does not constitute a regulated building service to which the BSCRA Act applies. However, deficiencies in design can be taken into account as long as building work is involved.
2. Ultimately, it is the building work itself which must be found to have not been carried out in a proper and proficient manner or which is faulty and/or unsatisfactory. It can be found to be so if the design itself is deficient and therefore the building work is similarly deficient when following the design. For example, if a design fails to comply with requirements of the local government authority or with applicable provisions in the Building Code of Australia, and the building work has followed the design and thus has the same deficiencies, it is the building work itself which can be found to have not been carried out in a proper and proficient manner or which is faulty and/or unsatisfactory; Diploma Construction at [35].
3. In relation to the exercise of the power set out in s 47(1)(a) of the SAT Act, the Tribunal notes that it must proceed with a great deal of caution when considering an application to dismiss at an early stage of proceedings before it has received the full benefit of production of documents and receipt of oral evidence; Laurent and Commissioner of Police [2009] WASAT 254 at [20] (Laurent).
4. In considering whether to dismiss the proceeding, given that the consideration is being made at an interlocutory stage, the Tribunal must assume that the factual assertions being made by the applicant will be established; Ambrus and Churches of Christ Homes and Community Services Incorporated [2006] WASAT 141 at [16] (Ambrus).
5. The exercise of the power can be used to dismiss the proceeding in its entirety or part thereof; Laurent at [24]. In the context of the current proceeding it would need to be established that the application is 'obviously untenable', that it 'cannot possibly succeed' and/or is 'manifestly groundless'; Ambrus at [8].

Is the applicant's complaint misconceived and/or lacking in substance?

Design/scope of work of all works necessary to prevent water ingress

1. The first regulated building service complained of by the applicant is effectively that the respondent failed to design and implement a scope of works which encompassed all works necessary to prevent water ingress from the concourse area to the basement area.
2. The Tribunal has found that this aspect of complaint 1 must be dismissed for the following reasons.
3. Firstly, the Tribunal is not satisfied that the respondent was engaged to design or to implement a design of 'all works necessary to prevent water ingress' from the concourse area to the basement area. Therefore this is not a regulated building service that the respondent carried out.
4. In addition, this aspect of the complaint appears to be a reiteration of the initial complaint lodged by the applicant against Psaros Constructions and which was settled between the parties by way of a Heads of Agreement. The remedy by way of a design to prevent all further water ingress was one sought by the applicant from Psaros Constructions at mediation and resulted in the formulation and agreement of the Heads of Agreement. It cannot now be re­agitated against the respondent as it did not construct the Concourse Apartments and nor was it a party to the Heads of Agreement.
5. If the applicant contends that the Heads of Agreement has been novated, and seeks to bring a claim for breach of contract, then that takes this aspect of the complaint outside of the jurisdiction of this Tribunal.

Design and implementation of scope of works to remedy water ingress into Areas 1, 2 and 3

1. In respect of the design/scope of works set out in the 19 November 2015 letter and the respondent's implementation of those works, the applicant submits, alternatively, that they were required to carry out all works necessary to prevent water ingress into three specified areas. On the basis that water ingress continues into those areas, the applicant asserts that the remedial works performed were not carried out in a proper and proficient manner and/or are faulty and/or unsatisfactory.
2. The Tribunal finds that the works undertaken by the respondent from August 2016 to July 2017 constitutes a regulated building service for which the respondent is legally responsible. The Tribunal does not accept that during that period of time the respondent was performing the work for the then de­registered Psaros Builders or the then de­registered Psaros Constructions. To make such a finding would simply have no basis in fact. Once the respondent agreed to perform the works, it agreed to perform them subject to the provisions of the BSCRA Act.
3. The facts of this case are entirely different to those found in Owners of Strata Plan 52843 and Psaros Pty Ltd [2018] WASAT 113. In that case the respondent was retained by Psaros Builders to perform works pursuant to terms of a contract and in respect of which it received payment; at [40]. Psaros Builders had been required to perform building work pursuant to a building remedy order made by the Tribunal and remained legally responsible for the works performed. Psaros Builders did not de­register until the works were completed and a Notice of Completion in respect of the works was issued; at [39] ­ [42].
4. The facts of this case are in clear contrast. The respondent, whilst performing the remedial works could not have been performing them pursuant to any formal agreement with Psaros Builders. It did not exist during the substantive period of time that the works were carried out. The only entity which could have carried out the regulated building service during the relevant period of time is the respondent. There is no evidence before the Tribunal that it was performing the works at the direction of another party.
5. The totality of the works set out in the 19 November 2015 letter, is what constitutes the relevant regulated building service, and it was performed solely by the respondent.
6. In relation to the assertion by the applicant that the design/scope of works set out in the 19 November 2015 letter required, at the very least, prevention of water ingress into three marked areas of the Concourse Apartments, the Tribunal accepts that submission. It is clear from the terms of the letter that the intent was to address and rectify water ingress into those specific areas. If the design or scope of works was deficient to achieve that objective, and therefore the building work carried out by the respondent is similarly deficient, it is open to the Tribunal to find that the remedial work was not carried out in a proper and proficient manner or is faulty and/or unsatisfactory.
7. It will be a matter for evidence at the final hearing as to whether water is still ingressing into one or more of the three relevant areas. However for the purposes of this determination, this is a regulated building service carried out by the respondent.

Design/scope of works required by the Heads of Agreement/E-TEC not carried out

1. The applicant has also raised as part of its complaint 1 against the respondent that it did not carry out the remedial works performed by it during May 2016 to July 2017 in a proper and proficient manner or that those works are faulty and/or unsatisfactory because it failed to perform the works in accordance with the scope of works and specification required by E­TEC. The alleged works that it failed to undertake are identified at [37(c)] above.
2. It is not in contention between the parties that the identified works were not performed by the respondent. What is in contention is what scope of work was required to be performed by the 19 November 2015 letter and whether the scope of work was carried out in a proper and proficient manner or whether it was faulty or unsatisfactory.
3. In the Tribunal's view, the scope of works is arguably quite broad and may include those works which 'have not been covered in the original report' prepared by E-TEC. It appears to the Tribunal that the scope of works may have included the obligation to ensure that the original E­TEC report had been complied with as evidenced by the following excerpts from the 19 November 2015 letter:
   • Psaros Construction Pty Ltd [sic] proposes further investigation and repair works as per the original scope of works prepared by E-TEC.
   • Psaros Construction propose to flood test this area so the water ingress can be clearly identified. Once the leak has been identified the remedial works can be completed.
   • The remedial works ... will be as per the attached E-TEC report.
   • E-TEC (Calibre Consulting) will be undertaking site inspections once the leaks have been identified to confirm if any further remedial works are required which have not been covered in the original report.

1. Therefore in the Tribunal's view the remedial works undertaken by the respondent are not necessarily limited in the manner contended by it (refer to [25] above). It is open for the applicant to persuade the Tribunal that the regulated building service agreed to be performed by the respondent was to complete all outstanding works as required by the original scope of works prepared by E­TEC but perhaps limited to the specified three areas.
2. Further, in the Tribunal's view the failure to perform certain aspects of a scope of works can constitute a regulated building service which has not been carried out in a proper and proficient manner or which is faulty or unsatisfactory for that reason.
3. Therefore in the Tribunal's view this aspect of complaint 1 cannot be dismissed at this point of the proceeding. However, in the Tribunal's view it is open to the respondent at the final hearing to make submissions as to what the E-TEC scope of works required, as referenced in the 19 November 2015 letter, whether that scope of work has been carried out by the respondent, and whether it has been carried out in a proper and proficient manner, or is faulty and/or unsatisfactory.
4. The decision of the Tribunal currently is simply that the building service complaint in this respect can properly be made against the respondent and ought not to be dismissed. It will require the receipt of further evidence at a hearing to ultimately determine liability.

1. The Tribunal accepts that at the present time this complaint item could have been caused by one or more regulated building service. That is, it may be as a result of the original regulated building service performed by Psaros Constructions (refer to [34] above) and/or it could be as a result of cement slurry sourced from the respondent's remedial works. It is therefore open for the applicant to contend to the Tribunal that this complaint arises from a regulated building service performed by the respondent and thus on that basis in the Tribunal's view it is not appropriate that the complaint item be dismissed.

1. On the basis of the above findings, the Tribunal is of the view that only part of complaint 1 ought to be dismissed on the basis that it is misconceived and/or lacking in substance. Complaint 1 effectively identified three regulated building services on the basis of three alternative proposed scopes of work/design which were then implemented by the respondent. Whilst the Tribunal finds that there is a basis to proceed with two of the alternative scopes of work/implementation, the Tribunal is of the view that the main contention of the applicant, as set out at [27], is obviously untenable and cannot possibly succeed as against this respondent for the reasons set out at [49] ­ [53] above. In essence, there is no evidence before the Tribunal that it was a scope of works which the respondent agreed to perform. In fact, the evidence before the Tribunal supports the position that a scope of works necessary to prevent water ingress, if agreed to be performed at all, was only ever a scope of works agreed by the entity who originally constructed the Concourse Apartments, Psaros Constructions.
2. In respect of complaint 2, in the Tribunal's view this complaint is open to be pursued as against the respondent and will require receipt of evidence and examination of that evidence at a final hearing to ultimately determine liability. It cannot be said at this interlocutory stage that the complaint is obviously untenable or cannot possibly succeed as against the respondent.

The Tribunal therefore makes the following orders:

1. To the extent that complaint item 1 identifies that the relevant regulated building service is the design and performance by the respondent of a scope of works required to encompass all works necessary to prevent water ingress from the concourse area to the basement area, that part of the complaint is hereby dismissed pursuant to s 47(1)(a) of the State Administrative Tribunal Act 2004 (WA).
2. The remaining allegations in respect to complaint item 1 and complaint item 2 ought not be dismissed by the Tribunal and will proceed.
3. The proceeding is listed for a directions hearing at 10.30 am on 16 July 2019 in order to program the matter to mediation and/or final hearing.

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