(i) Was complaint item 2.2 referred to the Tribunal by the BC at all? (Preliminary Issue 1)

(ii) If it was referred, what was the scope of the complaint which was referred? In particular, is the applicant permitted to argue that the respondent failed to install metal flashings? (Preliminary Issue 2)

(iii) In relation to complaint items 2.1 and 2.2, has the respondent failed to carry out the building work the subject of the complaint items in a proper and proficient manner or is the work faulty or unsatisfactory?

(iv) If so, what is the appropriate form of the BRO (if any) in respect of each complaint item?

1. Given the nature of the preliminary issues, it is necessary to set out the statutory framework at the outset in some detail. Unless otherwise stated, all references to sections or parts of legislation are references to the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (Act).
2. Under s 5(1) of the Act, a person may make a complaint to the BC about a regulated building service not being carried out in a proper and proficient manner or being faulty or unsatisfactory. A complaint made under s 5(1) of the Act is defined as a 'building service complaint': s 3. Section 5 subsections (5) and (6) state that:

(b) any preliminary action required before making a complaint under this section.

(a) made in a manner and form approved by the Building Commissioner; and

1. Regulation 6 of the Building Services (Complaint Resolution and Administration) Regulations 2011 (WA) (Regulations) states:

(2) At least 14 days before making a complaint under section 5(1) or (2) of the Act, the complainant must give to the person who will be the respondent written notice that the complainant proposes to make the complaint together with such description as the complainant is reasonably able to give of -

(a) the remedy the complainant proposes to seek; and

(b) the evidence on which the complainant proposes to rely.

1. It should be noted that there is another type of complaint under the Act which can be made, a HBWC complaint under s 5(2), which is a complaint about a matter referred to in the Home Building Contracts Act 1991 (WA) s 17 or s 20 or Sch 1 cl 5. These are complaints about contractual matters rather than complaints about workmanship. In this matter the applicant is precluded from bringing a HBWC complaint due to the fact that the contracted amount for the development was over the jurisdictional threshold.
2. After receiving a complaint under the Act, the BC must decide whether to accept or refuse the complaint: s 7.
3. If the building service complaint is accepted, then the BC must cause an investigation of the complaint by one or more authorised persons (s 9(1)) who must then provide a report to the BC which may include recommendations as to the manner in which the complaint should be dealt with (s 10(1)). The BC must then consider the report and may take certain actions, including to refer the complaint to the Tribunal under s 11(1)(d) of the Act.
4. Section 13 concerns the withdrawal of complaints. We will return to this section later in these reasons.
5. If the BC decides to refer a building services complaint to the Tribunal then the Tribunal may either:

(a) if the Tribunal is satisfied that the regulated building service that is the subject of the building service complaint has not been carried out in a proper and proficient manner or is faulty or unsatisfactory, deal with the building service complaint by making a BRO; or

1. A BRO and what it may include is defined under s 36 of the Act.
2. It is not in dispute in this case that the respondent is a registered building provider and that it carried out a regulated building service. It is also not in dispute that the complaint was made within the 6 year time frame mandated by the Act. What is in dispute are the preliminary issues and whether the works were carried out in a proper and proficient manner or were faulty and unsatisfactory.

1. The final hearing for this matter took place over 6 days on 7, 8, 11 and 12 November 2024 (November tranche) and 19 and 20 March 2025 (March tranche).
2. On 12 November 2024, the final day of the November tranche, the Tribunal made orders in relation to the parties filing submissions in relation to the jurisdiction of the Tribunal to determine complaint item 2.2.
3. At the conclusion of the March tranche, the Tribunal ordered the parties to file written closing submissions (filed on 30 May 2025) and submissions in response to each others' submissions (filed on 13 June 2025). Final submissions on Preliminary Issue 1 were filed by the parties on 3 September 2025 and the decision was reserved on that date.
4. Numerous Exhibits were received into evidence. The principal ones are:

1. The Tribunal heard evidence for the applicant from:
   1. Mr Rick Martelli, building expert. The majority of Mr Martelli's evidence (including all of his report and most of his oral evidence) became superfluous due to the agreement of complaint items between the parties, including during the hearing. However, he did give oral evidence during the hearing regarding complaint item 2.2.
   2. Mr Hal Burkett of Painting Inspection and Assessment Services, a painting expert who gave both written and oral evidence relevant to both complaint items 2.1 and 2.2.[1] His expert reports are:

(a) A report dated 19 November 2021 (first Burkett Report);[2]

(b) A report dated 10 January 2024 (second Burkett Report).[3]

1. Mr Greg Meacham, from Timber Insight, a timber expert gave written and oral evidence in relation to complaint item 2.2.[4] His expert report is dated 13 February 2024 (Meacham Report).[5]
2. The respondent called the following expert witnesses:
   1. Mr Lachlan Deshon, a building expert. Like Mr Martelli, most of Mr Deshon's evidence became superfluous, including his report. However, like Mr Martelli, he gave oral evidence during the hearing regarding complaint item 2.2;
   2. Dr Armand Zurhaar, a materials scientist from Zedcon Scientific Services in relation to both complaint items. [6] His expert reports are as follows:

(a) A report dated 13 October 2022 (first Zurhaar Report);[7] and

(b) A report dated 18 March 2024 (second Zurhaar Report).[8]

1. The respondent also called the following lay witnesses:

(a) Mr Christopher Holditch, former construction manager with the respondent. A witness statement by Mr Holditch was filed dated 11 March 2025;[9] and

(b) Mr Ashley Damerell, Site Foreman for the respondent. A witness statement for Mr Damerell was filed and dated 11 September 2024.[10]

1. Pursuant to orders made by the Tribunal, the experts conferred jointly prior to the final hearing and produced joint reports. The only joint report which remains relevant to complaint items 2.1 and 2.2 is that of the scientific experts (Dr Zurhaar, Mr Burkett and Mr Meacham) dated 24 April 2024 and filed on 17 May 2024 (Joint Expert Report).[11]
2. As is customary in the Tribunal, the expert witnesses gave evidence concurrently. Initially the three scientific experts gave evidence together, then the two building experts and finally during the March tranche, all witnesses except for Mr Burkett gave evidence together.

1. The Tribunal adopts the respondent's background summary in its closing submissions of 30 May 2025 which is not disputed by the applicant. The Tribunal makes findings of fact in accordance with the following summary:

1. The building, the subject of the current complaint, is a three-level wool store located at 36 Queen Victoria Street, Fremantle. The building was originally constructed in 1922 and subsequently extended in 1944 and 1950, by the addition of the current upper level.
2. Throughout the 1980s and 1990s, the building was used as a storage facility (Fort Knox) until it was purchased by a developer (Match Group) to be converted into residential apartments. Match Group created a special purpose vehicle to undertake the development: Beach Street Holdings Pty Ltd.
3. The respondent builder (Built Pty Limited) was engaged as head contractor under a design and construct contract to undertake the conversion and renovation of the building in December 2014. By this time, the building was heritage listed.
4. The Respondent's contract with the developer required it to convert the building into 216 separate 1, 2 and 3-bedroom apartments with construction of an under croft carparking area.
5. The Respondent's scope of work broadly required it to:

5.1 remove the existing roof sheeting, but retain the underlying roof structure;

5.2 create two atriums inside the building by removing defined roof and floor timbers, leaving previously enclosed steel and timber structures open to the elements;

5.4 perform paint removal, crack-repair and mortar re-pointing to defined areas of external brickwork;

5.5 create some new apertures in the external walls;

5.7 construct 216 new apartments using the existing floor structure to form new raised acoustic flooring. In effect the Respondent was required to create 216 new habitable apartments within the existing building.

1. Construction by the Respondent commenced in early 2015 and practical completion was achieved on 30 November 2016.
2. At completion, the owners of the apartments were issued with comprehensive operation and maintenance manuals.
3. Because the building is heritage listed, there is an existing Heritage Agreement which was transferred to the Applicant Strata Body at Practical Completion.
4. The Heritage Agreement creates obligations on the Applicants to carry out maintenance on the building in the short, medium and long term. These obligations apply to various building components including the steel and timber structures, the subject of the 2 complaint items brought by this application[.]
5. The lead consultant on the project was Cameron Chisholm Architects[12] and Hocking Heritage were the heritage architect.[13] When the builder had to make a decision about anything related to a heritage aspect of the project they sought approval from the heritage architect.[14]
6. The Heritage Impact Statement, prepared by Hocking Heritage in November 2014, contains a statement of significance which summarises the heritage importance of the site to the community of Fremantle:[15]

Dalgety Wool Store (former) comprises a four level wool store warehouse building (1922/23, 1927, 1944) that spans between imposing street frontages on Beach and Queen Victoria Streets Fremantle, and an adjoining single storey wool store (1942, 1952) fronting Beach Street. Showing influences of Interwar Stripped Classical architectural style, it is of considerable significance to the community of the port city of Fremantle and the state of Western Australia for the following reasons:

It represents significant associations with Dalgety & Co and the development of the wool industry, predominantly their achievement in establishing and developing a significant presence in Fremantle from 1892, and an association with the site since 1922;

It clearly has a strong association with the wool industry and evidences the development of that industry in Western Australia in the practices of wool storage, display and sale throughout the twentieth century and how those developments subsequently made the facility redundant;

It is integral within the historic fabric of the port city of Fremantle as one of the earliest examples of wool stores in the port city and the oldest remaining and most intact on the strip of wool stores along the harbour side;

It is significant as a large scale utilitarian warehouse with a landmark presence that exhibits influences of the Interwar Stripped Classical (Neo Romanesque) style that contributes to the unique streetscape along the harbour between Goldsborough and James Streets, and on the main eastern gateway into the port of Fremantle, on Queen Victoria Street;

It demonstrates considerable design achievement in the development of the place, particularly the innovative future planning in 1922/23 and in 1927 for the extra floor and raised roof that were constructed in 1944;

It demonstrates the principal characteristics of an extensive wool storage facility, as evidenced in Fremantle and throughout Australia, with imposing architecturally designed street frontages, expansive structural post and beam structure throughout three storeys, natural lighting design for the additional floor added in 1944 and the remnant wool press fittings that remain in situ;

It is significant for the intactness and authenticity of the facades and the interior jarrah (and karri) posts and beams;

It has become an uncommon and endangered building for many reasons including development pressures and changing markets and work practices in the wool industry;

It contributes to the community of Fremantle's sense of place as part of a working port that has played an integral part of the wool industry in Western Australia, and demonstrates a distinctive way of life that no longer exists, where the processing and storage of export commodities took place at the edge of the city within the vicinity of the harbour.

1. Under the section 'Proposed Development' the Heritage Impact Statement states:

The proposed development would see the change of use from a utilitarian industrial building, a former wool store with storage display and sale floors, into multi‐unit residential use with two levels of basement car parking and commercial retail tenancy at ground floor to Beach Street. Adaptations to enable the change of use would be required to the existing heritage listed building. The overriding design intent of the proposed development is based substantially on retention and conservation, and where necessary, sympathetic adaptation of existing heritage fabric and structure, in accordance with Burra Charter principles.

The configuration of the development proposal would retain the majority of the existing external and internal heritage fabric and roof configuration, together with careful insertions of new fabric, apartment modules, services and lift cores. In accordance with the approved plans, three sections of the existing/original floors would be removed to provide courtyards for light and ventilation to the internal facing apartment blocks; whilst retaining the existing structural elements. The careful insertion of these courtyards would provide opportunities to reveal and appreciate the scale, materiality and construction of the original wool store building.

Previous decisions on when a complaint has been referred

1. The leading case in the Tribunal on whether or not a matter has been referred to the Tribunal by the BC is that of Member Le Miere (as she then was) in Owners of Island Apartments Strata Plan 52597 and Pindan Pty Ltd [2017] WASAT 25 (Pindan).
2. In Pindan, Member Le Miere observed at [57] that:

The BSCRA Act is at its core consumer legislation. The purpose of the BSCRA Act is to provide consumers with a means to bring their complaints about 'the quality of performance of the regulated building service' in a non-technical manner. It is about substance, not form.

1. This statement was approved by His Honour Tottle J in Kulowall Construction Pty Ltd v Chellem [2023] WASC 140 at [45].
2. Member Le Miere in Pindan concluded, in relation to the jurisdiction of the Tribunal, (at [67]):

The Tribunal is vested only with those powers which are found within the enabling act or the SAT Act: Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151; Sparks v Bellotti [1981] WAR 65. The enabling act in this instance confers power on the Tribunal to make a building remedy order or decline to make a building remedy order in relation to the 'building service complaint' if the Building Commission refers the building service to the Tribunal. The Tribunal only has power to determine complaints that are referred to it - the Tribunal cannot determine any complaint that is not referred to it.

(Original emphasis)

1. The position thus is that the Tribunal can only determine a complaint which has been referred to it by the BC. The Tribunal adopted this approach in a preliminary decision concerning a complaint item in these proceedings: The Owners of Heirloom Strata Plan 63644 and Built Pty Ltd [2024] WASAT 100.
2. Whether a complaint item has been referred and/or the scope of what has been referred depends upon an examination of the facts of each case and is not always easy to determine. It is particularly difficult to determine in those matters which were referred to the Tribunal prior to 1 July 2022.
3. On 1 July 2022 the Tribunal introduced a practice requiring the BC to refer matters to the Tribunal in a specific manner and, relevant in this case, to include a list of all complaint items lodged with the BC, stating which complaint items are referred to the Tribunal (using a Tribunal template).
4. Further, the parties were then required to file all relevant documents directly with the Tribunal regardless of whether they had previously been provided to the BC. Prior to this practice, the BC provided the Tribunal with a bundle of documents which it considered relevant together with a complaint schedule which was completed by the applicant when the matter was before the BC. It did not give the Tribunal a complaint schedule which set out which matters were referred to the Tribunal and did not always provide to the Tribunal all the materials given to it by the parties.

1. The building service complaint the subject of CC 241 of 2022 is BC 2021-1838 (the complaint) which was made to the BC on 17 June 2021.
2. The complaint was referred to the Tribunal by the BC on 28 February 2022 on the basis that the value of rectification works identified appeared to be in excess of $100,000.
3. On 28 February 2022 the Tribunal made a series of orders, including at Order 2 that, '[t]he Tribunal will give to the parties an electronic copy of the documents provided to the Tribunal by the Building Commissioner' (Electronic Bundle).
4. The Tribunal has examined the Electronic Bundle. It includes an Investigation Report dated 17 February 2022 signed by Jill Hoyle, Authorised Investigator for the BC. It is helpful to set out that report in its entirety:

The Owners of Heirloom Strata Plan 63644 (Complainant/s) and Built Pty Limited (Respondent/s) Complaint Number: BC2021-1838

INVESTIGATION REPORT COMPLAINT NO. BC2021-1838 BUILDING SERVICE AT 51 BEACH STREET, FREMANTLE

On carrying out an investigation of the above complaint pursuant to section 9 of the Building Services (Complaint Resolution and Administration) Act 2011, I submit the following report to the Building Commissioner or authorised delegate pursuant to section 10 of the same Act:

Background

The Building Service complaint was lodged on 17 June 2021 and accepted by the Building Commissioner's delegate on 22 July 2021.

The complaint relates to the redevelopment of a heritage commercial building into an apartment complex (183 apartments). The building permit was issued on 17 June 2015 and the estimated value of the works noted as $63,000,000.00 (Doc 29). The City of Fremantle advised that the BA7 (Notice of Completion) was received on 3 November 2016 (Doc 24 & 30).

The complaint items are: roof are leaking into apartments; external structures are rusting and paint deteriorating; Tiled areas leaking into carpark and; Fire system corrosion.

A Notice of Proposed Complaint was provided to the respondent on 11 May 2021 (Doc 35).

Investigation

The parties were notified of the acceptance of the complaint and the respondent was requested to provide its response.

On 6 August 2021 the respondent provided its response (Doc 40) to the complaint and in summary providing its opinion that 'the building has not been subject to the required preventative and scheduled maintenance regime prescribed in the operation and maintenance manuals for the period since completion and up to the time of the complaint.' The respondent requested the complainants to provide evidence of such maintenance in regards to each item of complaint.

On 11 August 2021 the complainant's representative requested time to provide a response to the respondent's submissions. Further correspondence was received from Vogt Graham Lawyers (Doc 46) advising it was in the process of formalising his engagement to act for the Owners of Strata Plan 63644 in this matter and requesting a 4 week extension and advising of an additional major defect to be added to the complaint.

Vogt Graham Lawyers formally advised that it was acting for the complainants on 1 October 2021 (Doc 50) and requesting further extension to 14 October 2021 to provide a further report from an independent building inspector.

On 4 October 2021, the respondent objected to the extension and a response was provided to the respondent to advise that although his objections were noted the extension would be approved (Doc 51). The parties were notified of the extension being approved on the same day (Doc 52)

On 14 October 2021 the complainant's solicitor provided further evidence to support this complaint with a Building Inspection Report from Richard Machell of Prescient Consulting (Doc 54) and advice that in relation to the new item of complaint a further assessment needs to take place and upon completion of this assessment a Notice of Proposed Complaint would be served on the respondent for the additional complaint item (Doc 54).

Advice was sought from Building & Energy's Principal Building Inspector, Ian Aitken, (the PBI) as to whether the value of any rectification works on this complaint would exceed $100,000.00. After considering the Richard Machell report, it was the PBI's opinion that rectification works would exceed $100,000.00 (Doc 57).

On 18 November 2021, the parties were advised of the PBI's opinion and my intention to recommend that the complaint be referred to the State Administrative Tribunal (the SAT) (Doc 59). The complainant's solicitor was requested to provide advice on the new item to be added prior to the recommendation being made to refer the complaint to the SAT. Further updates were received and a Notice of Proposed Complaint provided to the respondent on 29 December 2021 (Doc 65).

Rather than adding the new items to the current complaint, a new complaint was lodged in relation to the new issues 6 January [2022] (BC2022-119).

Documents Submitted in Support of Recommendation

Refer to Supporting Documentation in the Outcome Tab on CMS file.

Recommendation

As it is the PBI's opinion that any rectification works required are likely to exceed $100,000.00, it is my recommendation that this complaint be referred to the SAT.

1. The Investigation Report indicates that an 'investigation' in the ordinary sense of the word did not occur, and that the investigation that was conducted was primarily directed to ascertaining whether a building inspector from the BC considered that the value of any rectification works would exceed $100,000.
2. The investigation report also indicates that:

(a) the applicant's solicitors, Vogt Graham Lawyers, had only recently been engaged and that they were waiting for a report from an independent building inspector (Mr Machell) in order to respond to the respondent's submission; and

(b) that another complaint against the same builder by the applicant in respect of the same building was forthcoming.

1. The Electronic Bundle also includes a 'Notice of proposed complaint'. This is a document which must be given by an applicant to a respondent at least 14 days before an applicant can make a complaint to the BC. The Notice of proposed complaint is undated and includes a list of four complaint items, with item 2 being as follows:

Paintwork to timber and steel in the atrium structure is failing

1. The OBAN building inspection report referred to in the Notice of proposed complaint is dated 3 July 2020. The OBAN report does not contain any reference to flashings. It states under heading 4.2 (External Structure) as follows:

4.2.1 The paintwork to the timber atrium structure is starting to break down; sections are peeling and the timber grain is exposed and opening up. There appears to be extensive use of sealant to the upper surfaces of the beams. The sealant is evident, but the longevity of the surface finish is unknown. The metal bracing to the timber structure is corroding.

4.2.2 The finishes to the steel columns are deteriorating and patchy; the specification and life expectancy of the surface finish should be confirmed. Corroded sections should be treated and painted, with the design assessed to avoid water build up in specific areas.

1. The OBAN report also contains some photographs with text under items 4.2.1 and 4.2.2 but they refer to paintwork and corrosion and not to flashings.
2. The Electronic Bundle also includes a Building complaint form (which initiates the complaint to the BC) which was filled out by '[t]he Owners of Strata Plan 63644' and dated 17 June 2021. That form attaches a complaint schedule listing 4 complaint items. Relevantly, Item 2 was described in the following terms:

External structures are rusting and paint deteriorating

This heritage building has had section of the roof removed to enable open areas to two common areas The steel plates and structures are rusting and bleeding rust stains on the painted beams. The timber paint is breaking down and exposing the timber to water damage and rot

Remove old paint, re-treat steel and timber, repaint

1. The Tribunal finds that it is not satisfied that an 'engineering report' was attached as stated in the Building complaint form as the only reports provided to the Tribunal by the BC in the Electronic Bundle were two building inspection reports - one from OBAN (summarised above) and the other from Mr Richard Machell from Prescient Consulting dated 11 October 2021 (Machell Report). The Machell Report states, in relation to the timber, relevantly as follows:

6.38 In my opinion, the painted surfaces of the exposed timber elements are in a condition that may not be reasonably unexpected considering the age, and so that I have no reason to conclude that the painted timber surfaces are representative of faulty or unsatisfactory work, or work not carried out in a proper and proficient manner, despite that they require maintenance.

6.39 I otherwise recommend that the painted timber surfaces be maintained by suitable preparation, and recoating, as set out in the manufacturer specification for the type of paint to be used, and existing.

6.40 In respect to horizontal surfaces, consideration may be given to installing a flashing over the horizontal surface and to minimize the potential for accelerated degradation by water ingress into the timber.

1. The reference to flashing in the Machell Report is a recommendation as to the future scope of works which may be required. It is not, in the Tribunal's view, included as a basis for the work being faulty or unsatisfactory particularly given that Mr Machell in fact concluded that the surfaces were in a state which could be reasonably expected given their age.

Withdrawal of the complaint relating to the timber structures

1. On 14 October 2021, the applicant's solicitors sent a letter by email to the BC indicating that it withdraws the element of complaint item 2 relating to the timber structures on the basis of the Machell Report.[16] The applicant confirmed that it is proceeding with the complaint as it relates to the steel structures. The letter stated:
   1. With respect to the timber structures element of Complaint item 2, Mr Machell's Report explains that, considering their age, Mr Machell is of the opinion that the condition of the timber structures cannot be reasonably unexpected. Accordingly, the Complaintant hereby withdraws this element of Complaint BC2021-1838.
2. It is this letter which led the Tribunal to request submissions from the parties as to whether complaint item 2.2 had been referred to the Tribunal at all.
3. Ms Jill Hoyle acknowledged receipt of this letter dated 20 October 2021 in an email which states, inter alia, 'I acknowledge receipt of your correspondence and the building inspection report provided by Prescient Consulting'.[17]
4. On 21 October 2021, Ian Aitken, the building inspector emailed Jill Hoyle in response to the task he had been asked to do (namely to assess and determine whether the remedial work is likely to exceed $100,000.00). Mr Aitken determined that it was and that the matter should therefore be referred to the Tribunal. Mr Aitken stated:

It is my opinion that the report prepared by Prescient Consulting (Authored by Mr Richard Machell and dated 11 October 2011) contains sufficient information concerning the respondent's failure to provide a building that performs and meets the requirements of the NCC and applicable Australian Standards.

The estimated repairs and remedial works to make good will exceed $100K and therefore it is recommended this complaint file be referred to the SAT ...

1. The intention of the BC to refer the matter to the Tribunal was communicated to the parties on 18 November 2021 by Ms Hoyle. In her email, she states:[18]

It is the Principal Building Inspector's opinion, that if the complaint items are substantiated, the rectification work required is likely to exceed the value of $100,000. It is therefore my intention to recommend that the complaint is referred to the State Administrative Tribunal for determination.

Please advise the owner's intention as to whether to add a new item of complaint to this complaint prior to me making this recommendation.

1. The formal decision of the BC (to refer to the Tribunal) was not sent to the parties until 17 February 2022. The Tribunal finds that the delay in the referral of the matter to the Tribunal even after the BC had reached a decision that they would refer the matter to the Tribunal, was due to the BC waiting to determine what was happening with the new complaint item which the applicant had foreshadowed.
2. It is clear and the Tribunal finds that the applicants relied on the report by Mr Machell in order to withdraw the complaint item and that the BC relied on the report of Mr Machell when making a determination as to whether to refer the matter to the Tribunal.[19]

1. A further complication in this matter is that the applicant's solicitors, as part of their submissions about whether the matter had been withdrawn, provided the Tribunal with a letter sent by them to the BC on 3 February 2022 seeking to reinstitute the timber structures element of complaint item 2. That letter was sent in response to a letter from the respondent dated 2 February 2022 which stated the respondent's understanding that the timber structures element of complaint item 2 had been withdrawn. The letter of 3 February 2022 states, relevantly, as follows:

1. I refer to paragraph 12 of our letter dated 14 October 2021.
2. I note that Building and Energy have not provided any notice or confirmation with respect to the withdrawal of the timber structures element of Complaint item 2.
3. In circumstances where Building and Energy have not confirmed the withdrawal of a complaint item, and the matter has not yet been referred to the State Administrative Tribunal, the complainant may maintain that complaint item.
4. Please be advised that the Owners have instructed that they do not withdraw the timber structures element of Complaint item 2 and hereby maintain it.
5. Please find attached the report of Mr Hal Burkett dated 19 November 2021 in support of Complaint item 2.
6. In providing their supplementary response to the additional complaint items, the Respondent may also wish to provide a response to the timber structure element of Complaint item 2.
7. Neither the 2 nor 3 February 2022 letters had been previously filed with the Tribunal by the parties.
8. The Tribunal notes that the report referred to in the letter of 3 February 2022 (First Burkett Report) was not included in the Electronic Bundle and there is no evidence therefore that it was considered by the BC prior to the matter being referred to the Tribunal (14 days after the 3 February 2022 letter was sent). In any event, the Tribunal notes that the First Burkett Report (and indeed the Second Burkett Report) does not contain any reference to flashings.

Proceedings in the Tribunal with respect to complaint item 2

1. On 3 May 2022 (in accordance with Order 3 of the orders made by the Tribunal on 12 April 2022), the applicant filed an electronic copy of a complaint schedule relating to each complaint item. That schedule, under item 2 states as follows:

External structures are rusting and paint deteriorating

The building has had a section of the roof removed to enable open appears to two common areas.

The steel plates and structures are rusting and bleeding rust stains on the painted beams.

The timber paint is breaking down and exposing the timber to water damage and rot

Paragraphs 6.41 - 6.55 of Prescient Consulting Report 1 dated 29 November 2021

Painting Inspection and Assessment Services Report dated 19 November 2021

Remedial works pursuant to paragraph 6.56 of Prescient Consulting Report 1 dated 29 November 2022 [note this should be 2021]

Remedial works pursuant to the summary and overview of repairs detailed in Painting Inspection and Assessment Services Report dated 19 November 2021

1. In this complaint schedule, for the first time (except for the letter of 3 February 2022), the applicant refers to the First Burkett Report as evidence in support of the timber element. Clearly, the applicant sought a second opinion on this issue given that the Machell report recommended this item not be pursued. The First Burkett Report was not provided by the BC to the Tribunal and there is no evidence that the BC took it into account when making its decision. The First Burkett Report comments on issues relating to both the timber and the steel, but as noted above, makes no mention of flashings.
2. On 28 February 2024, apparently on their own initiative, the applicant's solicitors filed a further complaint schedule with the Tribunal which divided numerous items into sub items, including dividing item 2 into two separate complaint items, namely item 2.1 (steel) and item 2.2 (timber). The First Burkett Report was cited as supporting evidence in relation to the steel element. In relation to the timber element, the complaint schedule, consistent with the way the complaint was described in the BC, states that the 'external timberwork is breaking down, rotting and subject to water damage', but states under 'remedy sought' that the 'respondent is to carry out remedial works in accordance with Timber Insight Report dated 13 February 2024'.
3. The Timber Insight Report was defined above as the Meacham Report. That report states that the intent of the inspection carried out by Mr Meacham was to:
   1. Determine the condition and extent of degradation of the structural timbers in the Atrium areas where exposed to the weather.
   2. Determine whether the builder's decision not to install metal flashings as specified by the Heritage Architect (Heritage Specification AH-REP-02 November 2014) has been unsatisfactory workmanship directly contributing to wood deterioration.
   3. Include a recommended scope of remedial works to remedy the causes of the deterioration to the exterior timber structures, and to remedy the deterioration.
4. The Meacham Report is the first time that the installation of flashings was mentioned as a proposed remedy, and this occurred in February 2024, approximately three and a half years after the complaint was first made to the BC.

1. The Tribunal must decide whether complaint item 2.1 has been referred to the Tribunal. When considering this issue, we have read and considered the written submissions of both the applicant and the respondent dated 3 September 2025.

Contentions of the parties in respect to preliminary issue 1

1. The applicant's contention is that the BC exercised its discretion to refer the entirety of the complaint to the Tribunal and that at the time the matter was referred to the Tribunal the complaint was still on foot because no order was made by the BC confirming the withdrawal.
2. The respondent contends that complaint item 2.2 has not been referred to the Tribunal. The respondent submits that there is no evidence that the timber structures element of complaint item 2 was:

(a) Firstly, accepted by the BC and incorporated into BC 2021-1838 after the letter from the applicant's solicitors dated 3 February 2022;

(b) Secondly, the subject of a mandatory investigation by the BC after 3 February 2022 as required by s 9(2) of the Act; or

(c) Thirdly, incorporated into the referred complaint by reference to either:

1. The Investigation Report; or
2. The Electronic Bundle.

1. The question for the Tribunal is to ascertain what was referred to the Tribunal by the BC on 17 February 2022. As discussed above, the Tribunal can only determine a complaint that has been referred to it. Logically, what is referred must be in existence at the time of the referral.
2. Section 13 of the Act concerns the withdrawal of complaints. It provides:
   1. Withdrawal of complaint

(1) A building service complaint or a HBWC complaint may, subject to this section, be withdrawn by the complainant.

(2) The complaint may be withdrawn even though the Building Commissioner has commenced or completed an investigation of the complaint, but cannot be withdrawn if the complaint has been referred to the State Administrative Tribunal.

(3) This section extends to the withdrawal of a complaint so far as it relates to some only or part only of the matters that form the subject of the complaint.

(4) This section does not limit the powers of the State Administrative Tribunal under the State Administrative Tribunal Act 2004 section 46.

1. In the recent Supreme Court decision of Thompson Sustainable Homes (WA) Pty Ltd v Phelan [2025] WASC 444 Cobby J stated at [31] as follows:
   1. The principles of statutory construction are well settled. The process of construction involves the attribution of objective meaning to the statutory text, having regard to that text, the context in which it appears and the purpose of the legislation to be construed.

1. The power to withdraw in s 13 of the Act is expressed to be 'subject to this section'. The only restriction mentioned in subsection (2) is that the complaint, whilst being able to be withdrawn when the BC has commenced or completed an investigation, cannot be withdrawn if it has been referred to the Tribunal (although subsection (4) preserves the Tribunal's powers under s 46 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) in this regard). Section 13 of the Act expressly allows the withdrawal of some only or part only of the matters that form the subject of the complaint.
2. The Tribunal notes that s 46(1) of the SAT Act expressly gives the Tribunal the power to grant an applicant leave to withdraw a proceeding or a part of a proceeding whereas there is no equivalent power given to the BC in the Act.
3. The applicant's primary argument is that a withdrawal which acts 'automatically' would deprive a respondent of its entitlement to seek costs under s 49(1) of the Act if a complainant has withdrawn its complaint, as the BC would become functus officio and can no longer make orders in respect of the matter.
4. The applicant has not referred the Tribunal to any cases which are authority for the proposition that if a complaint is withdrawn before the BC, then the BC is functus officio (regardless of whether or not the BC has confirmed the withdrawal). It should be noted that the applicant's argument in relation to this issue is not about whether the Tribunal is functus officio, but rather whether the BC is functus officio.
5. The BC is an authority created by statute (and is not a Tribunal or a Court) and it has the statutory responsibility to be, amongst other functions, the first line attempt to resolve complaints by homeowners against builders. The BC has a very different role in the resolution of complaints to that of the Tribunal. There may well be good policy reasons as to why, if indeed the BC is functus officio after a complaint is withdrawn, it does not have the power to order costs in such circumstances.
6. However, that matter is not before the Tribunal for decision. The Tribunal finds that even if the applicant is correct on this issue and the BC is functus officio and therefore cannot make an order as to costs if the complaint is withdrawn, this does not provide a basis to imply a requirement that the BC must accept (by order or otherwise) a withdrawal of a complaint when the clear words of the statute do not require it. In the Tribunal's view, a complainant before the BC can simply withdraw a complaint on their own initiative at any time until the matter has been referred to the Tribunal and does not require the leave of the BC to withdraw a complaint or part of it.
7. The Tribunal also does not accept the applicant's submission that s 87(1) of the Act gives the BC an incidental power to give effect to a withdrawal of a complaint. The terms of that section appear to the Tribunal to instead to be directed to powers related to the investigation and examination of complaints and also the regulatory functions of the BC. In the Tribunal's view any incidental power that the BC may have in this regard is limited to like functions and not to costs (which is expressly and separately provided for under s 49(1) of the Act).
8. The Tribunal accepts that it is certainly helpful to the Tribunal and the parties for the BC to include in an investigation report which complaint items have been withdrawn and which ones have not. Indeed, the new practice of the BC attempts to make it clear what items are referred by the BC's preparation of a complaint schedule which is provided to the Tribunal. However, this does not mean that there is a legislative requirement that the BC must make an order allowing the withdrawal of a complaint item before it can be withdrawn.
9. In the Tribunal's view, there is no basis to read into s 13(1) a requirement that to be effective a withdrawal must be confirmed by an order or otherwise of the BC. The letter from the applicant's solicitors on 14 October 2021 withdrawing the timber structures element of complaint item 2 was unequivocal in its terms. It was also supported by reference to the Machell Report, being the independent building report which was sought by the applicant.
10. The Tribunal accepts that there is no express reference in the BC's documents to the withdrawal of the timber structures element of complaint 2. However, the terms of the 14 October 2021 letter are unequivocal and the letter is referred to in the Investigation Report. Further, the Tribunal notes that the Investigation Report does not refer to the letters of 2 or 3 February 2022.
11. Having regard to the chronology of events set out above, we find it is evident that the BC, shortly after receiving the 14 October 2021 letter, finalised its investigation and notified the parties of its intention to refer the matter to the Tribunal. The delay in doing so is, in the Tribunal's view, attributable to the fact that other complaints were potentially forthcoming.

1. The Tribunal finds that the timber structures aspect of complaint item 2 was withdrawn by the applicant on 14 October 2021 and is not the subject of the building service complaint referred to the Tribunal on 17 February 2022. Therefore, the Tribunal finds that it does not have jurisdiction to consider this item.
2. However, in the event that it is found to have erred in its conclusion as to Preliminary Issue 1, the Tribunal has gone on to consider Preliminary Issue 2.

1. Preliminary Issue 2 involves the consideration of whether, if the complaint item relating to the timber was referred, the referral includes a failure to install flashings. The Tribunal has read and considered the following written submissions of the parties in relation to this issue:

(i) Respondent's submissions dated 29 November 2024; and

(ii) Applicant's submissions dated 27 December 2024.

1. The respondent argues that the description of the complaint made to the BC was limited to the standard of the coating applied to the timber and steel and that complaint item 2 was never a complaint about the absence of metal flashings on the timber beams. The respondent contends that by now seeking a BRO to this effect, the applicant is seeking to impermissibly expand this item beyond its original scope.
2. The respondent further argues that, as a matter of procedural fairness, a complaint cannot be expanded by the provision of further reports which expand the scope of the original complaint, as a complaint needs to be sufficiently described to allow the other party to respond. The respondent notes that the purported requirement to install flashings was never identified as a separate complaint item when it was before the BC, nor was it identified in any of the reports provided to the BC.
3. The applicant correctly points out that the description of the complaint before the BC was not limited to the standard of the coating applied to the timber and steel but rather that the complaint states 'the timber paint is breaking down and exposing the timber to water damage and rot'. The applicant says that the Meacham Report provides further detail in relation to the reason the external timber structures are experiencing timber paint breakdown and the timber is being exposed to water damage and rot.
4. The applicant submits that the inclusion of the further detail provided by the Meacham Report:

(a) is not being used to support a contractual complaint in relation to the omission of the flashing/capping in non-compliance with the Heritage Architect's specifications; and

(b) does not expand the scope of the complaint item beyond being a complaint about the external timber structures experiencing timber paint breakdown and the timber being exposed to water damage and rot.

1. The applicant cites as support in relation to point (a) above certain pages of the Meacham Report. The Meacham Report states (by way of a very brief summary) that the breakdown of the painted surface is likely to be a result of the inferior quality of paint application and poor workmanship in preparing the timbers for painting. However, it goes on to state under 'Recommendation' that:[20]

As specified by the heritage Architect the optimum protection recommended for this timber is installation of galvanized or powder-coated sheet metal capping on all top surfaces, which to [sic] shed water away from the top wood surface, and reduce wetting to vertical surfaces[.]

(Tribunal's emphasis)

1. The Tribunal finds it difficult to accept the applicant's submission that a recommendation by an expert as to what is an optimum remedy is relevant to whether or not a complaint extends impermissibly beyond what was referred to the Tribunal by the BC.
2. The applicant also (correctly, in the Tribunal's view) submits that the respondent has had ample opportunity to adduce evidence directed at whether circumstances exist in which it was appropriate for flashing/capping to have been omitted and there is no reasonable basis for the respondent to submit that it was prevented from being able to adduce such evidence. The Tribunal notes that the respondent filed the second Zurhaar Report, which responded to the Meacham Report and that the Joint Expert Report also discusses the issue of flashings.
3. However, whether the respondent has had ample opportunity to respond to a complaint is ultimately irrelevant if the Tribunal finds that it does not have jurisdiction with respect to the item. Jurisdiction cannot be created by agreement of the parties or even by stealth or acquiescence.

Conclusion of the Tribunal on the second preliminary issue

1. As has been stated previously in these reasons, the words 'subject of the building service complaint' in s 38 of the Act refers back to the building service complaint which is required to be lodged with the BC under s 5(1) of the Act. Therefore, once a building service complaint has been referred to the Tribunal by the BC under s 11(1)(d), the Tribunal only has jurisdiction to deal with those items of complaint which have been referred.
2. It is a question of fact as to whether the complaint before the Tribunal is a new complaint or whether it formed part of the complaint that was referred to the Tribunal: Pindan at [77].
3. As noted above, reg 6 of the Regulations states:

(2) At least 14 days before making a complaint under section 5(1) or (2) of the Act, the complainant must give to the person who will be the respondent written notice that the complainant proposes to make the complaint together with such description as the complainant is reasonably able to give of -

(a) the remedy the complainant proposes to seek; and

(b) the evidence on which the complainant proposes to rely.

1. There is an obligation on an applicant therefore to describe, as much as they are 'reasonably able', both the remedy they propose to seek and the evidence on which they propose to rely.
2. As the Tribunal noted in Pindan, the BC can seek clarification about a complaint after it has been received (at [114]). Complaints can be amended or clarified, including by the BC 'toing and froing', without a formal application being made to amend a complaint (at [114]).
3. However, as the Tribunal also pointed out in Pindan, a complainant has an obligation to put a builder on proper notice of its claims (at [64]).
4. The applicant's primary argument is that the scope of complaint should be determined by reference to the description of its effect and not its cause, and that it is entirely logical that the cause be clarified by way of expert evidence at a future date.
5. This argument is not without merit. However, in the Tribunal's view, whether the expanded scope of a proposed remedy has the effect that the original complaint in reality morphs into a new complaint is a question of degree. Each matter will depend on the facts of its particular case.
6. The issue of whether a complaint has been referred to the Tribunal was considered in the case of Ferrara and Webb & Brown-Neaves Pty Ltd [2021] WASAT 155 (Ferrara) which was another decision of Senior Member Le Miere (and of Sessional Member Gregory). In that decision the Tribunal stated at [48] as follows:

The remedy sought in any complaint may change from time to time as further investigation continues or in some instances following an expert conferral. It is not logical that the legislature intended that every time a better or different remedy was recommended the owner would not be able to accept it without having to make a new complaint.

1. The facts of that case are very different to the facts of this case. The Ferrara case concerned a three-storey house built on land situated next to a canal which developed cracking of the masonry walls on part of the house. The builder undertook some remedial works and the applicants made a complaint to the BC. In the complaint before the BC the owners sought the demolition of the building and the return of monies paid, together with 'any other appropriate remedial order that the BC deems appropriate'. The builder contended that the BC referred the matter to the Tribunal because the matter was complex and the reason why it was complex was because the demolition of the house was being sought. The Tribunal found that the matter was complex due to the cause and extent of the cracking, not just because one of the proposed remedies was demolition (at [54]).
2. The facts of Ferrara are complex and the case turns on its own facts. However, the Tribunal did not permit the homeowners to raise an issue about the desirability of the original use of screw piles as opposed to the use of jet grout piles in the original construction of the works, given that all the issues referred to by the homeowners in their Statement of Issues Facts and Contentions referred to the situation following remedial works done by the builder. The complaint referred to the Tribunal in that case was as follows:

Location

Ground floor and first floor of the building.

Description of Issue

Cracked brickwork on opposite ends of the canal facing side of the building signifying major structures defects of the building and concerns with the remedial works being undertaken by the Builder and the way the Builder seeks to proceed with the building works.

(Original emphasis)

1. The Tribunal stated that 'even the most liberal interpretation of the Complaint cannot include the allegation that the use of screw piles in the original construction of the building constituted faulty or unsatisfactory work' (at [133]). The Tribunal stated further that 'a complaint with respect to a design fault is not before the Tribunal and we are therefore not able to consider it' (at [135]).
2. The original complaint states 'the timber paint is breaking down and exposing the timber to water damage and rot'.
3. The Tribunal finds that this is not a case of an alternative remedy only being proposed during the course of expert evidence leading up to or at a hearing. The applicant's argument is that the contract documents provided for the flashings, they were not installed and they should have been. These contract documents were clearly in existence at the time that the complaint was made to a BC.
4. In the Tribunal's view the current proceeding is analogous to the situation in Ferrara in that, in reality, what is being argued by the applicant is akin to a design fault - the omission of the flashings. The applicant says that this is merely an extension of the remedy (which is permissible as the expert evidence develops), however the applicant's argument is essentially at its core that the flashings were required by the architect's specifications. This is an entirely different argument. It should have been known to the applicant at the time of lodging the complaint that there was a contractual requirement to install flashings (if this was indeed the case). As observed above, the Tribunal notes that the applicant is precluded from bringing a HBWC complaint in relation to the failure to install flashings and is now out of time to bring such a claim by way of a building service complaint.
5. This case is different from Pindan in that, in that matter, the Tribunal found that it had jurisdiction to hear and determine impugned complaint item 1 based primarily on the fact that the expert evidence in support of that item was before the BC. In this case, when the complaint was before the BC, there was no mention of the requirement for the respondent to install metal flashings on the timber beams, either in the description of the complaint item itself or in the supporting evidence for the complaint item. In fact, the only evidence in support of this complaint item which appears to have been before the BC is that of the Machell Report which concluded that the timber was in a condition not unreasonably expected for its age.
6. While the Tribunal accepts the argument of the applicant that there is no unfairness to the respondent given that, during the proceedings in the Tribunal the respondents were put on notice about the issue of the flashings, that is not the relevant test. The test is whether or not the complaint item has been referred to the Tribunal.
7. For the sake of completeness, the Tribunal notes that none of the other complaints made by the applicant to the BC against the respondent contained any reference to the external steel or timber structures.
8. The Tribunal finds for these reasons that complaint item 2.2 as it relates to flashings, has not been referred to the Tribunal.

1. The Tribunal will now consider whether each of the complaint items are faulty or unsatisfactory or otherwise not proper and proficient.
2. The respondent submits that in light of the findings set out above complaint item 2.2 must be dismissed in its entirety. However, in the Tribunal's view, the complaint item, as it relates to the adequacy of the painting, remains if the Tribunal is found to have erred in relation to Preliminary Issue 1.

1. Section 38(1)(a) of the Act requires the Tribunal to make a BRO where it is satisfied that the regulated building services were carried out in a manner that is not proper and proficient or is faulty and unsatisfactory.
2. The Tribunal in these reasons respectfully adopts the principles applicable to the determination of a building service complaint set out by the Tribunal in Owners of Island Apartments Strata Plan 52597 and Pindan Pty Ltd [No 2] [2018] WASAT 2 at [27] - [35]:
   1. The Tribunal has, pursuant to s 38 of the BSCRA Act power to make a building remedy order if it is satisfied that the regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory.
   2. The standard of 'proper and proficient' is higher standard of care than 'proper and workmanlike manner' or the reasonable care and skill of a tradesman or contractor.
   3. The building contract may be relevant to the proper and proficient as it 'defines what the builder was required to do, which informs the issue of workmanship'.
   4. The phrase 'not been carried out in a proper and proficient manner or is faulty or unsatisfactory' is a broad expression apt to cover a wide range of deficiencies in the construction of a building which can be taken into account.
   5. Manufacturers recommendations may be departed from if the builder otherwise acted in a proper and proficient manner. A product which is performing well, and is suitable for its application, cannot automatically be said to be faulty or unsatisfactory.
   6. A mere departure by a builder from its contractual obligations is insufficient to establish the work was not carried out in a proper and proficient manner or was faulty or unsatisfactory.
   7. Builders are not compelled to search for and install superior products over and above what is adequate for the intended purpose.
   8. Where the issue is not contractual, the Tribunal should be cautious in regards to ordering remedial work to be undertaken unless the applicant has demonstrated a genuine adverse effect by reason of the building work in question.
   9. A building service that complies with the BCA will not be found by the Tribunal to be faulty or unsatisfactory or to not to have been carried out in a proper and proficient manner except in exceptional circumstances.

1. In Gemmill Homes Pty Ltd v Sanders [2018] WASC 179 (Gemmill Homes), her Honour Smith J stated at [133] - [134] as follows:
   1. It must be borne in mind that the statutory limits on the exercise of the discretion to make a building remedy order are only those set out in s 38. The repository of the power conferred to make an order (the Tribunal) must form an opinion that the regulated building service (that is the subject of the building service complaint) has not been carried out in a proper and proficient manner, or is faulty or unsatisfactory.
   2. If the requisite opinion is formed, the Tribunal is required to make a building remedy order. It then has to exercise the discretion conferred in s 36(1) to make a particular order in the form of s 36(1)(a), (b) or (c). Thus, no 'right' or requirement on a party to a complaint to elect arises.
2. Therefore, the Tribunal must make an order if it finds that the building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory.
3. In this case the BRO which the applicants are seeking is a work order. As the Tribunal explained in Brooks and Gransden Building Company Pty Ltd [No 2] [2021] WASAT 86 at [14] to [17] there are often advantages to both parties when a 'work order' under s 36(1)(a) of the Act is made.
4. The respondent relies on the decision of Hippydayze Pty Ltd and Mener Group Ptd Ltd [2019] WASAT 92 at [157] in relation to the principle that compensation cannot be for loss suffered by an applicant due to a failure to take reasonable steps available to mitigate the extent of the loss being suffered. The respondent refers to the lack of any evidence led by the applicant as to any maintenance which it has performed and argues that, even in a case where a work order is sought under s 36(1)(a) of the Act, the respondent should not be required to remedy the relevant building elements (steel and timber) that have deteriorated through a lack of care and maintenance where there is an insufficiently clear evidentiary connection to any faulty workmanship that may be found by the Tribunal.[21]
5. However, the central question in the Tribunal's view is whether there is evidence of faulty or unsatisfactory work.

Background to the timber and steel the subject of the complaints

1. The external timber (comprising bearers, beams, columns and struts) is located in the outdoor atrium areas. It was incorporated from the original build and left in situ, however, as part of the development is now exposed rather than being in a protected internal environment.
2. The steelwork the subject of the complaint is also located in the outdoor atrium areas and primarily comprises pre-existing painted steelwork (with a lead-based paint) that was incorporated into the building at the time of the original construction in the 1920s (Existing Steel).
3. As part of is construction work, the respondent also added new steelwork to the building which was fabricated and painted offsite before being transported to site and assembled by the respondent during construction of the apartments (New Steel).[22]
4. The evidence of all expert witnesses is that this is the first project that they are aware of where 100-year-old timber has been taken from an indoor to an outdoor environment for a large-scale development.[23]
5. Mr Meacham gave evidence that he had seen timber used on a smaller scale in the Boans warehouse building in East Perth and that he also worked on the Woodsons Building in Fremantle, which he said was:[24]

Another heritage building that had some trusses and timber sections exposed, and that suffered considerable timber rot that had to be cut out and replaced.

1. For context, it is important to bear in mind that the flashings which were allegedly specified to be installed (subject to any agreement to vary this requirement and in respect of which the Tribunal has not made any findings) were intended to only cover a small proportion of the timber. That is, they were designed to shed pooling water but would not stop all part of the timber getting wet.[25]
2. Therefore, there is no evidence before the Tribunal that it was ever contemplated that flashings would be placed over all of the timbers, in some sort of encasing system. The evidence of Mr Meacham was to the effect that 'best practice would be to protect it all'.[26]
3. In fact, the evidence suggests that best practice may well have been to have not exposed the timbers in the first place. Dr Zurhaar stated in his oral evidence (with Mr Burkett agreeing) that the best way to resolve the issues would be to place a roof over the atrium.[27]

1. In addition to the background facts to the development set out at [29] above, the Tribunal finds the following additional facts:

(a) The building is located approximately 200 metres from the Swan River and approximately 1,100 metres from the Indian Ocean.

(b) The apartments overlook an open atrium which includes 100-year-old timber and steel structures which had previously been in a protected interior environment and were part of the existing heritage building.[28]

(c) The building permit was issued on 17 June 2015, and the estimated value of the works was noted as $63,000,000.00.

(d) The BA7 Notice of Completion was issued on 3 November 2016 and the applicant made a complaint to the BC on 17 June 2021 in relation to the complaint items the subject of these proceedings.

(e) The timber in question consists of a combination of Jarrah (a Western Australian hard wood) and Douglas Fir also known as Oregon (Oregon) which is a Canadian softwood.

(f) The bearers are Jarrah which is a reasonably durable hardwood. Jarrah is a class 2 durability timber with a service life of 15 - 40 years externally above ground. The roof timbers are Oregon which is a non-durable timber. The external service life of Oregon, which is a class 4 durability timber, is up to 7 years.[29]

(g) Both types of wood would last for the life of the building when used internally and protected from environmental conditions.

(h) Acrylic paint was installed on top of the existing paint system on the timber which contains lead-based paint.[30]

(i) Splitting and cracking of the timber was observed in 2021 by Mr Burkett and this would have occurred post practical completion in 2016.

(j) From 2021 there is evidence that the timber has been cracking and splitting in some parts and that some of the paintwork is breaking down.

(k) The builder was contracted to paint the timber in accordance with the architect's specification which is summarised at [154] - [155] below.

(l) The steel consists of Existing Steel which was painted with a lead-based paint and New Steel which was painted off site and then assembled by the respondent.

(m) The builder was contracted to paint both the Existing Steel and New Steel in accordance with the specification which is summarised at [200] below.

1. The Tribunal finds, based on the evidence of Mr Hutchinson and Dr Zurhaar, that in a heritage project the size of the Heirloom Apartments there will always be a chain of command which is headed by the developer and a lead consultant, who is usually an architect. The lead consultant usually appoints a heritage architect (if it is a heritage project) and also various other specialists such as engineers. Then, once the plans are drawn up, a tender process is undertaken and a builder is engaged to do the construction works.[31]
2. This is heritage development. Relevant to this issue are the general notes to the Heritage Architectural plans which provide that:[32]

(a) The primary aim of this project is to conserve and protect significant heritage fabric by carrying out essential conservation and remedial works to the existing facades, steel and timber structures. A cautious approach is essential.

(b) It is anticipated that the requirements for materials and workmanship in respect of heritage and conservation work will differ from contemporary trade practices and may involve highly specialized materials, work, practices and conservation techniques and treatments, handling and transportation. Such differences in materials and methods may be apparent in the documentation and scope of heritage work or the Heritage architect may issue instructions which may result in work or materials not strictly in conformance with contemporary standards, codes or practices and authority requirements.

(c) Should there be any uncertainty or conflicting information provided in an instruction, drawing or specification, the contractor must notify the Heritage architect immediately for further instructions before proceeding with the work.

1. The applicant's solicitors throughout the hearing urged the Tribunal to take a position that the builder was obliged to follow 'best practice' at all times, regardless of heritage considerations.
2. However, the picture is not quite so simple as the applicant contends. As indicated above, one of the applicant's witnesses (Mr Meacham) stated that it would be best practice to flash the entirety of the timber and two witnesses (including one of the applicant's witnesses, Mr Burkett) stated that best practice would be to put a roof over the atrium. However, despite this, the applicant in its closing submissions does not argue that the respondent builder should have flashed the entirety of the timber or put a roof over the atrium.
3. Another example of the significance of the heritage considerations is the following interchange between the applicant's counsel and its own witness Mr Burkett in relation to the lead-based paint on the Existing Steel:[33]

WITNESS, [ZURHAAR]: But the lead paint is part of the history. It's part of the heritage.

VOGT, MR: Painting over it.

WITNESS, [ZURHAAR]: Absolutely. There are old buildings in Fremantle that I've come across and been asked to - to retell its history because it has 12 layers of paint on it that shows that back in 1935 when the post master took the building over, he painted it red and then it went green and then it went blue - - -

VOGT, MR: But - - -

WITNESS, [ZURHAAR]: That's all part of history.

VOGT, MR: Is concrete cancer part of heritage value to maintain?

WITNESS, [ZURHAAR]: Concrete is usually not 100 years old. The concrete wasn't around that - - -

VOGT, MR: But answer the question; is concrete cancer part of - - -

WITNESS, [ZURHAAR]: No, it's not.

VOGT, MR: Well, just like rust is not and just like - -

WITNESS, [ZURHAAR]: No. I disagree with you. You cannot paint that brush over everything. Concrete is concrete. Concrete is not a heritage material. Steel is a heritage material. It's a 150 years or more in the making.

WITNESS, [ZURHAAR]: You're - you're - we're not talking about - you're saying - you're treating painting this steel structure as if it was just a paint job. You're not treating is as if it was preserving history.

VOGT, MR: But preserving what part of history, rust?

WITNESS, [ZURHAAR]: Yes. The rust and all the lead layers of paint, you clearly - you guys have clearly not had any heritage architect on the stand here.

VOGT, MR: But then the builder would be responsible for painting over the (indistinct) that's his decision - - -

WITNESS, [ZURHAAR]: Yes.

VOGT, MR: - - - to keep it. The builder - - -

WITNESS, [ZURHAAR]: Yes.

VOGT, MR: - - - is responsible for it. Now - - -

WITNESS, [ZURHAAR]: He might be.

VOGT, MR: - - - for the last five years, in this case two years, you have a complaint levelled against him and the tribunal is being asked - - -

WITNESS, [ZURHAAR]: Unless it's accepted that this is a heritage building and it has been agreed and understood by the asset owner that if you want to keep this as a heritage building with rust underneath lead paint and you want me to keep that heritage alive, it's going to need a bucket load of maintenance every few years to keep painting it, because I'm putting good over bad and many people in the heritage game will go, "Yes. I want you to put good over bad because you're not taking away history", and I have this on Fremantle buildings all the time.

1. The applicant, in its closing submissions, argues that the lead paint should have been entirely removed on both the timber and the steel before any painting occurred, despite the relevant scope of works not providing for this. The applicant relies on the decision of Mitchell J in Diploma Construction (WA) Pty Ltd v South Central WA Pty Ltd [2015] WASC 289 (Diploma Construction) at [53] as authority for the proposition that the Tribunal is not precluded from finding that building work is unsatisfactory where the builder has received professional advice as to the design of the building and carries out construction which is inadequate but accords with that advice.
2. In Diploma Construction the Supreme Court dismissed an appeal from a decision of the Tribunal which affirmed a BRO requiring the appellant to install additional below ground stormwater storage in a carpark at the respondent's shopping centre in Jandakot. The appellant had constructed the carpark's stormwater drainage system in 2008, following a design prepared by engineers engaged by the appellant. Mitchell J held that it was open for the Tribunal to be satisfied that the construction of the stormwater system was unsatisfactory by reason only of deficiencies in the design of the system.
3. Mitchell J stated that whether construction is satisfactory is a question of fact and, at [36] - [38] stated:
   1. In determining whether building work has been carried out unsatisfactorily it will be appropriate for the Tribunal to have regard to all of the relevant circumstances. Those circumstances may include what the builder has been engaged to do. If the builder has been engaged to construct a specific number of soakwells, and the builder constructs that number of soakwells, then the Tribunal may not be satisfied that the building work is unsatisfactory because the number of soakwells is inadequate for a particular purpose. That is, it would be more difficult to regard work carried out in the manner required by the customer as unsatisfactory. In such a case the builder has done what has been asked of it.
   2. The Tribunal may be more readily satisfied that work is unsatisfactory where the builder has been engaged to construct a drainage system that will cope with a one in 10-year storm event, and the builder constructs an inadequate number of soakwells for that purpose.
   3. In either case, the question of whether building work carried out by the builder is unsatisfactory will be a question of fact for the Tribunal to determine having regard to all of the relevant circumstances.
4. In Diploma Construction, Mitchell J stated at [34] that '[it] was no answer to the above findings for the appellant to say it had received advice from engineers, which it had engaged, as to the required number of soakwells' (emphasis added). At [39] his Honour again placed emphasis on the fact that, in that matter, the appellant was engaged to design and construct the carpark's stormwater drainage system.
5. In this case the Tribunal finds that the specification itself is not faulty or unsatisfactory. The decision in Diploma Construction therefore does not apply to the facts of this case. The Tribunal consequently agrees with the submissions of the Respondent that this decision is irrelevant to the current issues before the Tribunal.[35]
6. In any event, the Tribunal notes that in this case, the respondent builder did not engage the professional who wrote the painting specifications. As explained above, in this case the builder is one player in a larger project. The builder was not, in this case, engaged to design a system which would afford adequate protection to the timber and steel. It was engaged to do specific tasks according to specifications which were provided to it in the context of a heritage development.
7. The other heritage aspect relevant to this matter is the Heritage Agreement which was transferred to the applicant at practical completion.[36] The Heritage Agreement creates obligations on the applicant to carry out maintenance on the building in the short, medium and long-term. These obligations apply to various building components including the steel and timber structures the subject of the two complaint items still in dispute. The owners were obliged to carry out both 'maintenance' as specified in Annexure B and 'conservation works' (as specified in Annexure A). The maintenance schedule is expressed to be 'regarded as a minimum standard'.
8. The relevant 'maintenance' requirements include:[37]
   • annually (from November 2016) assess changes to exposed timbers, internally and externally, including cracks, splits, signs of wood decay and carry out repairs as required; and
   • five yearly - inspect condition of the paint system on all timber and steel structures in the atrium - repaint as required.
9. The 'conservation works' include the following relevant works to be completed within 10 years:
   • repaint all exposed timber structures in the atriums, including columns, bearers, struts and joists with external grade opaque paint finish to protect timber. Colour to match existing colour scheme (item 7); and
   • re-paint all exposed steel structures in the atriums, including steel braces and columns with external grade opaque paint finish to protect steel. Colour to match existing colour scheme (item 9).
10. It was not disputed by the applicant that the requirements summarised above in the Heritage Agreement applied to it. The applicant led no evidence that it has completed any maintenance or conservation works and it accepted, via its legal counsel at the hearing, that it was obliged to comply with the requirements in the Heritage Agreement.[38]

1. The nature of the complaint item 2.2 in relation to the timber is described as follows:

The timber paint is breaking down and exposing the timber to water damage and rot.

1. The background to this issue is neatly summarised by Mr Meacham in his oral evidence:[39]

So the timber in the building, in its original purpose as a wool stores and in the way it was constructed, the timber was classified as internal. It was fully protected and would have a service life of potentially hundreds of years. Because the timber has been exposed to the weather in the renovation of that building, the timber is then subject to environmental impacts from water, rain and also from sunlight and UV. The wetting and drying effect on the timber will cause shrinkage and expansion and cause cracking to the timber. Jarrah, as I indicate is a reasonably durable timber, but it really does - I mean in Australian Standard 1604 timber preservation treatment the natural durability is a service life of around 25 to 40 years. But we know that jarrah can actually perform a lot longer than that. But the risk, the greatest risk, is going to be in joints and locations where moisture can be trapped, and so it can still impact the service life of the timber. So the service life under the - from its original intent has been substantially reduced because of that exposure to the weather. We can reduce that impact by protecting the timber and the primary recommended method of protection is to use metal cappings .... And painting does still provide a degree of protection but requires a much higher degree of maintenance[.]

1. The evidence of Mr Meacham was that the roof beams, purlins and rafters in the roof structure which are Oregon are likely to degrade to the point of failure in the next five to ten years. He also said that some of the roof purlins are already decayed and at risk of imminent failure.[40] His evidence was that that the Jarrah was generally doing better with minimal degradation.
2. All experts agreed, and the Tribunal finds, that it was common knowledge that by taking the timber into an exposed environment there would be a reduction to its finite life regardless of what protections were provided to the timber.[41] The experts agreed that when inside, the timbers would last for the life of the building.
3. However, there was limited evidence led at the hearing as to how long the timber would be expected to last in its current conditions. As noted above, Mr Meacham opined about the usual service life of both timbers, but there was limited evidence before the Tribunal as to how long the service life of the timber (as compared to the painted coatings) would be extended, even with protections such as acrylic paint and flashings. Dr Zurhaar stated in his second report that the service life of both timbers can 'obviously be extended' with paint protection but did not state how long for.[42]

1. The builder was contracted to paint the timber in accordance with Specification 2.7 - Exterior Acrylic Paint Low Sheen. This called for the priming of the timber with Dulux Professional Total Prep followed by topcoats of Dulux Weathershield to a dry film thickness of 80 microns[43] (Painting Specification).
2. It was agreed that the Painting Specification did not call for the removal of the lead paint but rather to remove loose and/or flaking paint using a soft orbital brush.[44]

1. The applicant contends that (a) the paintwork to the external timber is breaking down prematurely due to faulty workmanship (surface preparation and paint application) on the part of the respondent and, (b) that the painting specification itself is faulty.
2. The applicant's argument is that:

(a) the acrylic paint system would usually have a service life of 10 years;

(b) the specification provided for the application of the acrylic paint over the lead-based paint (which all experts agreed reduced its service life);

(c) the only reason that the acrylic paint was painted over the lead-based paint was because it was more cost effective to do so; and

(d) what follows from this is that the respondent should have 'exercised their expertise and raised a variation with the Developer for the lead-based paint to be removed entirely prior to the next coating system being applied'.[45]

1. The respondent contends that (a) there is no evidence to establish that there has been faulty workmanship; and (b) that the applicant has not complied with its maintenance obligations.

Expert evidence in relation to the painting of the timber

1. The Tribunal finds that there is splitting and cracking of the timber in parts and that the acrylic paint is starting to break down.
2. The Burkett Reports raise the following issues with the external timber coatings:

(b) splits in structural beams that were not filled at the time of painting; and

(c) poor surface preparation and filling of cracks and splits in timber.[46]

1. Dr Zurhaar inspected the timber on 11 August 2022 and his evidence is, in summary, that:

(a) an inspection of the exposed timber elements in the atrium shows a weathered acrylic paint system consistent with 5 - 6 years exposure to the Fremantle coastal environment;

(b) the Weathershield finish is at the end of its service life in the higher, more weather-exposed areas and the whole of the structure is due for a total maintenance re-paint;

(c) the timber coating in the lower areas of the atrium is in excellent condition given its age and service environment. Timber will expand and contract with cyclic temperature changes and varying wet/dry moisture conditions. Some cracking and splitting of the timber fibers is unavoidable as timber is a biological material. The paint coating has not peeled or failed to maintain its film integrity on the vast majority of timber elements and by any reasonable assessment has performed to expectations;

(d) measurements of the Dry Film Thickness (DFT) of the acrylic paint on the timber in random locations found the required 80-micron dry film to be present. Accordingly, the specified protective coating system has been applied and it has remained well adhered and integral for the past 5 - 6 years; and

(e) there is no evidence to support an assertion that the painting was not carried out in a proper and proficient manner or not to specification requirements. However, there is clear evidence that the painting of the timber elements has not received the recommended annual or 5 yearly maintenance repairs and re-painting specified in the Heritage Agreement and as would be reasonably required in this service location.[47]

1. In the Joint Expert Report, the three experts agreed as to the following:

(a) the applied acrylic paint was installed on top of the existing paint system which contains lead-based paint;

(b) the extent of splitting/cracking of the timber observed in November 2021 by Mr Burkett would have occurred after 2016 completion; and

(c) the acrylic paint is peeling off the existing paint surface including off the red lead-based undercoat. The experts however disagreed as to the cause. Mr Meacham and Mr Burkett say poor preparation caused this failure. Dr Zurhaar says, in essence, that the failure is due to the age of the paint which is deoxidizing.[48]

1. During oral evidence before the Tribunal the three scientific experts agreed that paint coating to timber can provide adequate protection if it is applied properly.[49] All experts further agreed that the paint has reached the end of its service life and is due for a re-paint.[50]
2. Mr Meacham gave evidence that he observed some remedial filling work which had been completed to splits in the wood, but he was not sure when this occurred or by whom (although his view was that the splits occurred post 2016).[51] The evidence of Mr Meacham was that if splits appear in timber which are not filled, then this will allow water to penetrate into the timber.[52]
3. Dr Zurhaar and Mr Burkett agreed that there was no evidence of any maintenance being done to the paint work.[53]
4. The main points of difference in the evidence of Mr Burkett and Dr Zuhaar are:

(a) the reasons for the paint failing (poor preparation versus an inevitable outcome); and

(b) relatedly, whether the acrylic paint should have lasted 10 years.

1. Mr Burkett stated that acrylic paint should have a service life of at least 10 years and that more effective preparation work would have produced a better performance.[54] He said the reason the paint is failing now is because water is getting into the timber.[55] By contrast, the evidence of Dr Zurhaar was that he would expect the paint to last 5 to 7 years at best.[56] Dr Zurhaar agrees that on new, unpainted timber, a service life of up to 10 years is achievable but this is not relevant in this case as there was old, degraded paint left on the surface in accordance with the specification requirements that instructed leaving the existing coating in place, in his view to minimise disturbance of the lead-based paint.

1. As noted above, it was on the basis of the Machell Report that the applicant withdrew its complaint before the BC in relation to the timber element. Mr Machell was not called to give oral evidence, however the Tribunal has had regard to his report, given that it was one of two reports before the BC and also relied upon by the applicant to withdraw its complaint.
2. Mr Machell attended site on 1 October 2021. His observation at para 6.31 of his report was that 'in respect of the timber members, it is apparent that the paint is largely in place, except for localised instances, where moisture is able to enter into the timber behind the painted surface'.[57] He then stated:

6.32 It is apparent that the timber beams and columns have been subject to some movement and splitting, and which may not be unexpected where 100-year-old timber is subject to change from an internal to an external environment.

6.33 There is no visible evidence of degradation or compromise of the structural integrity of timber members.

6.34 In addition, and as a result of the creation of the atriums, timber beams have horizontal surfaces exposed to the weather, with the potential for moisture to enter into the beams including where surface cracks in the timber may be found. There is some evidence of sealing or filing of these surface cracks apparently after the paint system was installed.

1. Mr Machell went on to state that he was not aware of the paint manufacturer nor their recommendations for recoating or maintenance. He did, however, refer to the Guide to Standards and Tolerances at 13.06 which refers to a minimum durability of 36 months for exterior acrylic coatings.
2. He also stated that he had been provided with a photograph of painted timber framing, consistent with the framing at 51 Beach Street and which shows peeled paint and bare timber below which he was told was taken on 16 October 2017 and was provided to Match Projects with a request that it be repaired (which he was informed occurred).
3. Mr Machell then stated his conclusion which was referred to above, namely that the painted surfaces of the timber 'are in a condition that may not be reasonably unexpected considering their age'.

1. The applicant argues that the painting specification itself is not proper or should have not been followed by the respondent as it mandated painting over lead-based paint. The question as to whether the specification is proper was asked directly of Dr Zurhaar by the applicant's solicitors during the hearing and his response was 'Yes. Yes, it is. That's the way to treat it. That is how it is done'.[58] His evidence is that:[59]

VOGT, MR: And are you saying that therefore it's the architect's fault where, you say, that that method is not proper?

WITNESS, ZURHAAR: No, it's not. It is proper. It is common. This is why I'm saying to you, you are trying to apply proper proficiency standards that you would apply to new work to heritage work.

VOGT MR: No.

WITNESS ZURHAAR: It is proper and proficient to leave old lead painting on a building and paint over it.

VOGT MR: But it has degraded.

WITNESS ZURHAAR: Doesn't matter. It's still something that is done every day of the week, and I think Member Burns is familiar enough with heritage work, that it is common practice not to take lead paint off all old buildings. It is actually still proper and proficient to paint over degraded old lead paint. It will have limited durability, it will have limited whatever, but it's not improper or- - -

...

WITNESS ZURHAAR: There are entire procedures and things for lead containment. It is not only costly, it is actually hazardous ....'

1. Dr Zurhaar referred to the process of completely removing all lead-based paint, which involves turning the area 'into a lead management site. It's like ripping asbestos down right. Lead is evil, so you would encapsulate the whole site'.[60]
2. Dr Zurhaar went on to say:[61]

Why - why then, you might ask, do people paint over such old paint with such durability issues? (1) because of the enormous cost and health hazard of exposing lead. The WA Government - I consult to the WA Government Public Transport Authority, and they actually have a procedure where they will not, at any of their old train stations, expose lead.

They will simply ask for me to provide a specification that encapsulates it and is effectively what they've done on this building, and that is to make it as sound as you can, give it the best chances possible, on the understanding that within every seven to 10 years, you're going to have to replenish that because we're dealing with a bad substrate. That is more cost effective and more sound than having to go through the enormous cost of - of removing lead paint.

1. Mr Burkett said that he agreed with the comments of Dr Zurhaar and stated 'Encapsulating, painting over things like that, is the accepted way to do it because of the cost and health aspect'.[62]
2. The Tribunal finds several difficulties with the applicant's argument that the painting specification itself is wrong or improper. Firstly, the submission misunderstands the expert evidence of both Mr Burkett and Dr Zurhaar as to the reason why lead-based paint is commonly painted over - being both cost implications and serious health concerns. Secondly, just because the specification resulted in a reduced life of the paint does not, of itself, mean that it was faulty or unsatisfactory particularly in circumstances where there are stringent maintenance obligations. Thirdly, the submission completely disregards the evidence before the Tribunal as to the heritage value of the lead-based paint.
3. Further, the applicant has not led any evidence to support its contention that applying acrylic paint over existing lead-based paint in the manner specified is improper or contrary to any relevant code or standard. The Tribunal notes that the scope of remedial works agreed in the Joint Expert Report does not specify the removal of the lead paint but rather specifies the following works:

(b) Apply weather shield to whole of member to 90 microns dry film thickness.[63]

The standard of the application of the paint/expected life of the paint

1. The second argument of the applicant is that the application of the paint coating amounted to faulty or unsatisfactory workmanship or was otherwise not proper and proficient because the service life of the coating was reduced from the expected 10 years due to poor preparation and painting.
2. The 10-year figure for the service life of the paint coating came from the opinion of Mr Burkett in the Joint Expert Report, however, Mr Burkett did not reference any standard or code in the report. The Tribunal was also not referred to any standard or code by Mr Burkett during his oral evidence which says that acrylic paint should last 10 years. The oral evidence of Mr Burkett was that the manufacturers of acrylics warrant the paint for 10 years in his experience and that it is written on the tin.[64]
3. It was put to Dr Zurhaar that acrylic paint should have a service life of 10 years, but it was not durable in this case due to poor preparation and Dr Zurhaar replied that 'no, not because of preparation, because of the pre-existence of the old, degraded coating'.[65] Dr Zurhaar's evidence is:[66]

However, we don't know, from the failures we're seeing, whether the failures have resulted because somebody painted over flaky old paint, or whether we simply have 90 year old paint that became 95 years old.

1. The Tribunal agrees with the submission of the respondent that there is a tension between contemporary codes and standards when a builder is tasked with undertaking complex building works on a 100-year-old Heritage Building and that the evidence of Dr Zurhaar is that the manner in which the Heritage architects likely chose to manage that tension was to specify stringent maintenance obligations to be met by the owner of the building. The Tribunal accepts that evidence.[67]
2. The Tribunal asked the experts on the second day of the hearing about Mr Machell's report in relation to the timber and in particular his reference to the Western Australian Guide to Tolerances which refers to a minimum durability of 3 years for exterior acrylic paint.
3. Mr Burkett agreed that the minimum is three years but (as noted above) said that the manufacturers of acrylics warrant it for 10 years in his experience. He also acknowledged that one of the factors would be environmental exposure and he stated there would be slightly less durability in a 'very coastal' environment.[68] Mr Meacham also agreed that three years would be the minimum 'but it comes back to what the frequency of maintenance is going to be required on the structure'.[69]
4. Dr Zurhaar made the following comments (which Mr Burkett agreed with):[70]

But look, I think, at the end of the day, this is what I have maintained, is that the warranties that apply to paint products apply to paint products when they're ostensibly put on new and sound surfaces. To apply them to - to apply a warranty like that, when the product is used on a 100-year old structure with aged and degraded paint left behind on it, is - it's as we've seen in the reports and included in Mr Burkett's report, that the paint system fails because the degraded system delaminates within itself and fails.

And it doesn't matter how well you put a good coating on the outside, the life span and durability of a heritage structure like this is always going to be less than you would get on a normal house or a normal timber structure where you haven't got 100 year old timber that is moving, and you haven't got, potentially, 100-year old paint systems that have just gone way beyond their life.

You know, arguably, the only way you're going to get the 10-year warranties and things you're talking about is if you take the old paint off and go - and, even then, we are still putting a new paint on a 100-year old piece of timber, which is degraded as well and is prone to a lot of seasonal movement and cracking and splitting and things like that.

1. Mr Burkett expressly agreed with the above comments and also referred to a 'maintenance factor' for 100-year-old timbers now having to be painted and exposed to the weather. He said that 'there is a maintenance factor that - as there is in all houses after 10 years, seven years, depending on the environment, they have to paint them again'.[71]
2. Mr Burkett therefore appeared to move away from his initial position that the paint should last 10 years and accept that the expected longevity might depend on factors such as the age of the timber and environmental conditions.

Decision of the Tribunal as to the standard of the painting/expected life of the paint

1. The Tribunal was impressed with the evidence given by all three expert scientific witnesses and the Tribunal finds that all experts genuinely attempted to assist the Tribunal in understanding the difficult issues before it.
2. The Tribunal finds that Mr Burkett did not inspect the site until approximately five years after practical completion (on 19 November 2021). His report refers to the paint coating deteriorating at an earlier time, in 2017, but he provided no details of this, other than he was told this by some of the owners. The applicant called no evidence from any other witness in relation to this allegation. As noted above, the Machell Report comments on photos allegedly taken in 2017 which show paintwork peeling but Mr Machell states that he was informed that this was repaired by the developer. There is no evidence before the Tribunal as to the extent of the peeling which occurred in 2017. The Tribunal finds, on the basis of Mr Machell's report, that to the extent there was peeling of any of the paint in 2017, it was remediated.
3. Where there is a divergence between the evidence of Dr Zurhaar and Mr Burkett in relation to the painting, the Tribunal prefers the evidence of Dr Zurhaar for the following reasons:

(a) it was, in the Tribunal's view, based on a more thorough investigation and assessment as it took into consideration factors such as the age of the existing timber, its exposure to environmental conditions and the close proximity of the site to coastal conditions; and

(b) the evidence of Dr Zurhaar was consistent throughout the proceedings whereas as explained at [187] above, Mr Burkett's position appeared to move closer to the position of Dr Zurhaar as the hearing went on.

1. The Tribunal notes that the evidence of Mr Machell is that the paint should last a minimum of three years. The figure of 10 years referred to in the Joint Expert Report is one which was based on the experience of Mr Burkett. The Tribunal is of the view that given all of the factors referred to by Dr Zurhaar, and the fact that the development utilised the timber in the unusual manner which it did, it is not surprising that there is a divergence of views as to how long the paint should last. The Tribunal finds that the paint should last for a minimum of three years (as supported by the WA Guide to Standards and Tolerances 2019). There is no evidence before the Tribunal that the paint did not last for this period (noting above the comments in relation to the allegations of peeling paint in 2017).
2. In any event, the Tribunal accepts the evidence of Dr Zurhaar that the paint would not be expected to last for 10 years given the application of the paint on top of the pre-existing lead-based paint and all of the environment factors relied upon by Dr Zurhaar in his report.
3. Given the time which has now passed and the fact that no expert witness assessed the condition of the paint until approximately five years after practical completion, it is difficult for the Tribunal to make an assessment as to the original standard of the painting.
4. The Tribunal finds, consistent with the evidence of Dr Zurhaar and Mr Machell, that the painted surfaces are in a condition that may not be reasonably unexpected considering their age, exposure and substrate and that that this complaint item should be dismissed.
5. The Tribunal notes the argument of the respondent that due to the lack of maintenance conducted by the applicant the Tribunal cannot be satisfied that the alleged coating failures are due to any faulty or unsatisfactory work on behalf of the applicant. It is not strictly necessary to determine this issue given the Tribunal has found that the evidence does not establish that the original painting was faulty or unsatisfactory.
6. However, the Tribunal accepts the respondent's submission that, by late 2021, the paint coatings were five years old and due for at least spot repair and remediation pursuant to the terms of the Heritage Agreement. The Tribunal finds that there is no evidence of any maintenance to the painting occurring and that, based on the evidence of all three experts, this has likely contributed to the deterioration of both the paint coating and the timber.

1. The original complaint document lodged with the BC describes this complaint item as:[72]

The steel plates and structures are rusting and bleeding rust stains on the painted beams.

1. The applicant relies on the expert evidence of Mr Burkett in relation to this item and the respondent relies on the expert evidence of Dr Zurhaar and on the lay evidence of Mr Damerell. Before the BC the applicant also relied on the Machell Report, however the applicant did not call Mr Machell to give evidence or refer to his report during the proceeding.
2. The Joint Expert Report identified that the steel the subject of the complaint is comprised of both Existing Steel and New Steel and we will therefore consider each of these separately in turn after considering the contractual requirements for the painting of the steel.

1. The respondent's contractual requirements for painting exposed structural steel were described in an architectural specification which sets out the requirements for the preparation of the steel and the coatings to be applied (Steel Specification). The relevant parts of the Steel Specification are reproduced in the Second Zurhaar report.[73]
   1. ALL EXISTING STEELWORK (INCLUDING BUT NOT LIMITED TO FLOOR TRUSSES, BOLTS, PLATES, COLUMNS, BEAM LINTELS, ROOF STEELWORK, CLEATS, CONNECTOR PLATES, TIMBER COLUMN BASEPLATE, STEEL COLUMN CROSS-HEADS, BEARING PLATES) TO BE TREATED AS FOLLOWS:

PREPARATION FOR ALL EXISTING STEEL: REMOVE All SURFACE CONTAMINATION SUCH AS mL, GREASE OR DIRT WASHING WITH AN ALKALINE DETERGENT AND RINSE WITH FRESH POTABLE WATER, REPEAT AS NECESSARY, WORK TO MEET AS1627. REMOVE LOOSE. AND FLAKING COATING AND RED RUSTED METAL BACK TO HARD EDGE SCRAPER OR POWER TOOL, CONTRACTOR TO ADOPT ALL NECESSARY HEALTH AND SAFETY REQUIREMENTS AS EXISTING PAINT CONTAINS HAZARDOUS MATERIALS (EG LEAD)

INTERNAL STEELWORK,

1ST COAT, 150 MICRONS DULUX ZINCANODE 402

2ND COAT, 40 MICRONS DULUX LUXEPOXY SEALER

3RD COAT: 150 MICRONS DUREBILD STE

4TH COAT, 125 MICRONS WEATHERMAX HBR OR FERRADOR TO ARCHITECT COLOUR DESIGNATION, (REFER TO ARCHITECTURAL DRAWINGS FOR LOCATIONS OF EACH FINISH).

EXTERNAL STEELWORK:

1ST COAT: 150 MICRONS DULUX ZINCANODE 402

2ND COAT, 40 MICRONS DULUX LUXEPOXY SEALER

3RD COAT: 200 MICRONS DUREBILD SURFACE TOLERANT EPOXY

4TH COAT: 150 MICRONS WEATHERMAX HBR OR FERRADOR TO ARCHITECT COLOUR DESIGNATION, REFER TO ARCHITECTURAL DRAWINGS FOR LOCATIONS OF EACH FINISH).

EXISTING EXTERNAL BOLTS

REMOVE All SURFACE CONTAMINATION SUCH AS OIL, GREASE OR DIRT BY WASHING WITH AN ALKALINE DETERGENT AND RINSE WITH FRESH POTABLE WATER, REPEAT AS NECESSARY. ALL WORK TO MEET AS1627

REMOVE LOOSE AND FLAKING COATING AND RED RUSTED METAL BACK TO HARO EDGE BY SCRAPER OR POWER TOOL CONTRACTOR TO ADOPT ALL NECESSARY HEALTH ANO SAFETY REQUIREMENTS ASSUMING EXISTING PAINT CONTAINS HAZARDOUS MATERIALS (EG LEAD)

1ST COAT: 150 MICRONS DULUX ZINCANODE 402

2ND COAT: 40 MICRONS DULUX LUXEPOXY SEALER

3RD COAT: 150 MICRONS DUREBILD STE

4TH COAT: 125 MICRONS WEATHERMAX HBR TO ARCHITECT COLOUR DESIGNATION

1. The Joint Expert Report states in relation to the New Steel as follows:

(a) some new cleat plates and edges on New Steel beams have rusted in less than 5 years;

(b) the coating system specified by the project engineers to be applied to the New Steel was appropriate for the service environment;

(c) the specified coating system, if properly applied, would be expected to prevent steel corrosion (rust) for a period of at least 10 years; and

(d) the New Steel member and components that exhibit rusting in less than 5 years have corroded because the coating system application was deficient and/or defective.

1. The Joint Expert Report states that in terms of rectification, the corroded areas should be treated as follows:
   • Power tool clean to class 2 standard.
   • Apply a high build surface tolerant epoxy paint to min 200 microns DFT.
   • Topcoat with Ferrodor to min 125 microns DFT.
2. As discussed further below, there is little evidence about the amount of New Steel on the site and the amount of New Steel which has been damaged as a consequence of transportation or installation. The evidence of Mr Damerell (which sought to distinguish between the different types of steel) was raised late in the proceedings. The original expert reports did not discuss the distinction either at all or in any detail. The Tribunal finds that it is likely that the parties did not appreciate, until the matter was well progressed in the Tribunal, that two different types of steel were present or that if they did, they did not appreciate the significance of this.
3. The First Zurhaar Report appears to be based on the understanding that all the steel is New Steel.[74] The Second Burkett Report refers to only one explicit example of New Steel by reference to a photograph at page 11 of the report and states 'steel framing peeling, and rust on bolts. This steel was obtained by Built and painted by their outside contractor. Premature failure is evident'.[75] However, beyond this comment, Mr Burkett does not distinguish between New Steel and Existing Steel in the atriums.
4. Dr Zurhaar and Mr Burkett both gave evidence about the New Steel at the hearing. Their evidence was as follows:

(a) the areas of paint coat failure in the New Steel were primarily in areas where construction practices related to transport and installation have damaged the coating applied to the New Steel and now require touching up and repair;[76]

(b) maintenance of the structures was very important to the performance of the coatings and there was no evidence of any maintenance having been performed to the steel work;[77]

(c) the Ferrodor topcoat requires re-application every 5 years (Dr Zurhaar said 5 or 6 years) in a coastal environment;[78] and

(d) the coating around the bolts to the New Steel had failed, and that failure was likely a result of bolt tensioning which may have compromised the factory-applied coating.[79]

1. Both experts gave evidence that they had not quantified the amount of Existing versus New Steel on site and therefore could not say how much of the steel was affected by rust.[80]
2. In response to a question from Counsel for the respondent, Mr Burkett said that 'probably' 80 per cent of the rusting problems lay with the Existing Steel.[81]
3. Dr Zurhaar gave evidence that none of the rusting of the steel is a structural issue and is unlikely to be one for the next 50 years.[82]
4. There was an exchange between Mr Burkett and the applicant's counsel about the photograph of the New Steel at page 11 in the Second Burkett Report.[83] The applicant's counsel then asked him about other areas of damage:[84]

VOGT Mr: You've shown, at page 11 of the photograph that you are referring to, evidence of rusting and paint peeling. Did you observe the rest of these types of connections on site?

WITNESS, BURKETT: On - in the same area. Like this here, and then there was another - a unit that I went to to have a look, and that similar types of things that were happening.

VOGT, MR: You didn't take a photo of the other....

WITNESS BURKETT: No. No. Look, this was just basically representative of what you would see around when I started this project.

1. Mr Burkett confirmed that the photograph was taken from a long way away and that there were difficulties accessing the steel.[85]
2. Mr Burkett was asked a series of questions by the respondent's counsel about the photographs in his first report and was asked to confirm which ones were of New Steel. He confirmed that many of the photographs were of New Steel, but he did not point to any rusting of that steel.[86]
3. Mr Burkett confirmed that the photograph at page 404 of his first report was New Steel (and the Tribunal notes that this is the same photograph which appears at page 11 of his second report). He said that this was New Steel 'that has got a slight break down from construction damage and not being finished off properly'.[87] He also stated there is 'decorative steel' which is New Steel which was previously discussed in evidence and appears at page 1264 of his second report.[88]
4. The Tribunal then interjected with a question which sought to clarify whether or not Mr Burkett had seen other examples of rusting on New Steel and he confirmed that:[89]

Not in the atriums. I did see new steel at the entrance gates, but that's not part of my brief.

1. Dr Zurhaar's evidence was that the New Steel was damaged on site:[90]

On-site, it has not been properly repaired, either on the edge that has been scraped off a truck that was damaged or on a plate that has had bolts tightened to crack the paint or on a hole that has been drilled but not touched up.

1. The evidence of both experts was that there was no issue in relation to the majority of the New Steel and that it was painted as per the Steel Specification. Both experts stated that it was in discrete areas where it was either damaged on site during construction or modified in some way (such as by drilling a hole in it, or bolts being overtightened and the paint cracking) where issues have arisen.[91] Dr Zurhaar stated that 'there's no evidence it was deficient originally'.[92] Mr Burkett also confirmed that most of the Ferrodor had not broken down, it was just in certain areas 'where there are breakdowns which we looked at this morning'.[93] Mr Burkett also said that 'it is only in those damaged areas that it's breaking down prematurely'.[94]

1. The applicant, in its submissions argues that the respondent failed to properly apply the specified coating system to the New Steel, that the respondent failed to repair New Steel which was damaged on site and the New Steel members and components are prematurely corroding.[95] The applicant seeks a general BRO as to remedying the cause and effect of the deterioration and rusting of the New Steel in a proper and proficient manner making good all affected surfaces and matching all existing finishes.[96]

1. The respondent, in its submissions, draws a distinction between a general deterioration of the Ferrodor topcoat to the New Steel and the existence of a small number of discrete areas of corrosion arising from construction damage that occurred when the New Steel was delivered to site and installed by the respondent.[97]
2. The respondent says that the evidence was clear that corrosion was in specific locations where mechanical damage to the coating had occurred and refers to the evidence of Mr Burkett that:[98]

So those beams are beams that were done by Stella, and they are showing signs of deterioration, dirt, rust - not so much rust because it's only in those damaged areas that its breaking down prematurely.

1. The respondent's argument is that given the totality of evidence led before the Tribunal in relation to the New Steel, the Tribunal should exercise its discretion and not make a BRO for the following reasons:

(a) Both experts accepted that the Ferrodor coating to the New Steel has reached the end of its service life given the environment in which the steel is located;

(b) There is no evidence of any maintenance having been performed to the coating on the New Steel;

(c) Every 5 years from November 2016, the Heritage Agreement required the applicant to conduct periodic maintenance to inspect the condition of the paint system on all timber and steel structures in the atrium and repaint as required. This is expressed as a minimum requirement. Moreover, the applicant is required to re-paint all exposed steel structures in the atrium within 10 years of November 2016;

(d) It is unclear the degree to which any damage to the paint coating that may have exhibited in 2017 has deteriorated further by reason of the applicant's failure to promptly address any damage to the paint coating in accordance with the obligations under the Heritage Agreement and the general duty existing at common law to mitigate loss;

(e) Mr Burkett's evidence was that there is a slight breakdown in the new decorative steel in some limited areas arising from construction damage.[99] Had the damage to the paint coating been promptly raised by the applicant with the respondent (rather than 5 years post-completion) it may have been possible to accurately identify the scope of the damage directly attributable to the conduct alleged against the respondent; and

(f) Given the uncertainty in the scope of defective work alleged against the respondent and the fact that the applicant is required to re-paint all of the steelwork by no later than November 2026, there is no utility in requiring the respondent to rectify these areas, were the Tribunal to find that there had been any faulty workmanship on the part of the Tribunal.

1. The Tribunal finds that during construction the evidence establishes that one area of the New Steel was damaged during transportation or installation by the respondent, namely the area depicted in the photograph at page 11 of the Second Burkett Report.
2. The Tribunal finds that the evidence does not establish that there are other areas of New Steel which were damaged during transportation or installation by the respondent.
3. The Tribunal also finds that there is no evidence that the coating to the New Steel is, in general, faulty or unsatisfactory apart from in those areas where such mechanical or installation damage occurred.
4. The Tribunal notes the evidence of Dr Zurhaar in his first report that properly applied, the base epoxy coatings will typically prevent steel corrosion from occurring for 7 - 10 years in the Fremantle environment as long as annual maintenance washing to remove aggressive salt deposits occurs and the Ferrodor topcoat is re applied every 5 years.[100]
5. However, the further difficulty the applicant faces is that there is limited evidence of the damage to the New Steel. The only area where there is evidence of any construction or installation damage to any of the New Steel is in the photograph taken by Mr Burkett and which appears at page 11 of his second report.
6. Mr Burkett did give evidence that the damage in that photograph was 'representative', however it is not clear in the Tribunal's view whether his evidence on this point was that the damage was representative of the steel rusting in general or with respect to the New Steel only. When the Tribunal sought to clarify this issue Mr Burkett confirmed that he did not see any other rusting of the New Steel in the atriums (apart from the decorative steel which is discussed below). This issue was not then subsequently raised by the applicant's lawyer during further questioning.
7. The respondent argues that no order should be made at all given that the entire steel is due for a repaint. However, under the Heritage Agreement the applicant only has to re-apply a top coat of opaque paint. The scope of work agreed to by both experts in the Joint Expert Report includes cleaning the steel and applying a high build surface tolerant epoxy paint to min 200 microns DFT before a Ferrodor topcoat is then applied. The scope of the remedial work recommended by both experts appears therefore to go beyond what is prescribed in the Heritage Agreement.
8. With respect to the decorative steel, the Tribunal notes that there is no agreement by the experts as whether a consideration of this steel was covered by the Joint Expert Report or what paint system should have been applied to it.[101] There is thus insufficient evidence before the Tribunal to make an order with respect to this steel. The Tribunal also finds that there is insufficient evidence before the Tribunal to make an order with respect to any other aspect of the New Steel other than the part of the steel which appears in the photograph taken by Mr Burkett at page 11 of his second report.
9. The Tribunal will make a Building Remedy Order which is confined to remedying the rusting on the area of the New Steel which appears in the photograph taken by Mr Burkett at page 11 of his second report only. The order will state that the method of remediation must be as specified in the Joint Expert Report.

1. The Steel Specification was set out at [200] above. A complicating factor in relation to the Existing Steel is that it was already painted with a lead-based paint, (the existence of which is noted in the specification). The Steel Specification instructs that the extent of preparation is to 'remove loose and flaking coating and rusted metal back to hard edge' before painting over the surfaces with new coating products.
2. Based on the evidence of both Mr Burkett and Dr Zurhaar, the Tribunal finds that there is evidence of localised rusting on the Existing Steel. Given that neither expert inspected all of the steel, the Tribunal does not make any findings about the extent of the rusting or the percentage of the steel which is affected.

1. The applicant's arguments are similar to those in relation to the timber element of the complaint. It argues that:[102]

(a) The preparation of the Existing Steel and manner of painting of the Existing Steel was deficient; and

(b) The Steel Specification itself was deficient as it does not require the removal of all rust and it should not have been followed by the respondent.

1. The Tribunal notes that the applicant's argument at (b) would also mean that all lead-based paint which is present under the rust should also be removed.
2. The respondent's position is that there is insufficient evidence for the Tribunal to conclude to the requisite standard that the painting undertaken by the Respondent to the Existing Steel was not in a proper and proficient manner.[103] The respondent also points out that the Steel Specification did not require the removal of all lead-based paint (which was agreed to in the Joint Expert Report) and that there is no evidence that the Steel Specification is deficient.[104]

Expert evidence in relation to the painting of the Existing Steel

1. Dr Zurhaar and Mr Burkett agreed in the Joint Expert Report as follows:

(a) all Existing Steel contained a lead-based paint system;

(b) the extent of surface preparation was limited to minimal abrasion to a sound paintable surface;

(c) the first photographic evidence of rusting of Existing Steel was recorded by Mr Burkett in 2021 (5 years after completion); and

(d) there is no evidence of any maintenance being conducted on the Existing Steel since 2016.

1. The main area of disagreement between the two experts is the potential for rust below the lead-based paint and whether this would have been known to the builder at the time of painting.
2. Mr Burkett stated in the Joint Expert Report that corrosion is emanating from behind the existing paintwork which was not removed during preparation and that that the existing paint should have been removed and the rusted surface treated as specified before application of the new coating system.
3. Dr Zurhaar disagreed and said that the Existing Steel at over 90 years old will have contained some areas of corrosion under old paint and much of it was unlikely to have been visible or appear as surface rust to the painter in 2016.
4. Mr Burkett in his report refers to a micrograph of a delaminated paint sample which he argues shows that the paint applied was half the thickness required and also that the original rust was not removed which shows that the paint was 'doomed to fail'.[105]
5. The Second Zurhaar report notes that the specification does not require the removal of rust or old paint back to clean steel - rather it instructed achieving a sound surface in the existing paint system and 'painting over surface' with a 'new paint system'.[106] He goes on to state:[107]

To that end, the method of the specification was complied with, and the limitations of the specification must be recognized and respected. Stopping preparation at a sound existing paint surface is a common practice when hazardous lead paint is present on heritage buildings.

1. Dr Zurhaar also states in his second report that 'the listed coating products in the specification need to be applied in accordance with their purpose and the manufacturer's design intent.' He says that the first coat (the Zincanode) is not designed to be applied over paint and the second coat (Luxepoxy sealer) is designed to seal lead-based paints and friable surfaces before the ace high build epoxy primer/intermediate coat product is applied. He says in relation to the micrograph referred to by Mr Burkett in his report, given the presence of sound underlying paint, these areas only required the application of the Durebuild STE and Weathermax HBR coats totalling 275 microns. He concedes that the paint flake in the image does indicate the applied paint system is lacking in thickness but says that 'the limited durability and future failure of the coating system is a consequence of leaving steel rust and old paint under the new paint, not because the new paint is not thick enough'.[108]
2. Dr Zurhaar's conclusion as to the condition of the Existing Steel in his second report is that:[109]

The structural steel in the atrium exhibits areas of localised corrosion and staining consistent with an accumulated lack of regular maintenance and a timber-steel configuration which combined with the aggressive coastal service environment makes part of the structure prone to enhanced moisture and salt attack. The structural steel paint system is overdue for maintenance repair and re-painting. Localised failures ought to have been addressed with regular maintenance.

1. Dr Zurhaar opined that overall, the paint system has performed to expectations and is in a position commensurate with its service environment.[110]

Decision of the Tribunal as to whether the specification is wrong

1. The Tribunal accepts the evidence of Dr Zurhaar that stopping preparation at a sound existing paint surface is a common practice when hazardous lead paint is present on heritage buildings.[111] This evidence was supported by Mr Burkett.
2. Applying the reasoning at [177] - [178] above in relation to the timber element to the Existing Steel, the Tribunal finds that there is no evidence in this case that the Specification is faulty.

Decision of the Tribunal as to the standard of the application of the paint and preparation

1. Where there is a divergence between the evidence of Dr Zurhaar and Mr Burkett in relation to the painting of the steel, the Tribunal prefers the evidence of Dr Zurhaar. The evidence of Dr Zurhaar was, in the Tribunal's view, based on a more thorough investigation and assessment as it took into consideration factors such as the age of the steel, its exposure to environmental conditions and the close proximity of the site to coastal conditions.
2. The Tribunal agrees with the submission of the respondent that the evidence of Mr Burkett was inconsistent in parts, particularly as to the requirements for each of the coats of paints and the circumstances in which they were required.[112]
3. Mr Burkett did not inspect the site until November 2021, 5 years after practical completion and so there is no evidence as to the standard of the painting of the steelwork in 2016. There is no evidence that any micrograph photos were taken of the Existing Steel prior to construction to determine the full and current condition of the structure.
4. Mr Burkett said in evidence that he is aware from owners that areas of corrosion were already visible in 2017 but to his knowledge no action was taken to address this issue. However, the applicant called no witnesses in relation to this issue and the hearsay evidence of Mr Burkett can only be given very limited weight.
5. The micrograph in Mr Burkett's report appears to show what is rust below the lead-based paint. The question is whether that was visible to the builder at the time of painting or whether it was under the surface of the lead-based paint. In the Tribunal's view it is not possible to tell whether or not it was visible.
6. In relation to the paint thickness, the Tribunal accepts the evidence of Dr Zurhaar's that the paint failed due to the faulty substrate not the thickness of it.
7. The Tribunal finds that (as is the case with the timber), the exposure of the steel to a coastal environment has reduced its life. The maintenance, as required by the Heritage Agreement, is likely to be logistically difficult and expensive for the applicant, however, this was a requirement which is imposed given the type of these materials in this heritage development and not due to the works performed by the builder.
8. In the Tribunal's view there is insufficient evidence to conclude that the work performed by the builder in relation to the Existing Steel was not proper or proficient or is faulty and unsatisfactory. The Tribunal accepts the argument of the respondent that there has been no evidence of any maintenance performed on the Existing Steel and finds that this has likely contributed to current condition of the steel.
9. The Tribunal finds that because of the coastal environment, the age of the Existing Steel and the presence of the underlying lead-based paint, the condition of the Existing Steel was in a state which could be reasonably expected by late 2021. The Tribunal will therefore decline to make a BRO with respect to the Existing Steel.

1. The parties are to attend a directions hearing of 1 hours duration to commence at a time and date to be determined by the Tribunal in order to make submissions in relation to the precise terms of the orders to be made consequent to the above reasons and in relation to the costs of matters CC 241 of 2022, CC 243 of 2022 and CC 1579 of 2022.

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

[1] Mr Burkett's qualifications are referred to in his reports. He states he is a painter with 60 years' experience and was a qualified teacher of Painting and Decorating at TAFE and at the Master Painters training centre in Maylands for 20 years. He is a National Association of Corrosion Engineers Inspector Level 3, qualified coating engineer and from 1992 is an Inspector with the Australian Corrosion Association.

[4] Mr Meacham's report states that he has 48 years' experience working in the WA forest products and construction industries and holds a Cert. Trade Studies - Timber Machining (1979), Cert. Builders Registration (1986), Cert. Timber Technology (1995), Cert 4 Training & Assessment (2018).

[6] Dr Zurhaar's reports state that his qualifications are BAppSc GradDipChem (WAIT), MAppSc PhD (Curtin) MRACI CHEM.

[15] Exhibit 3, Tab 15, pages 526 - 527.

[19] The report of Mr Machell can be found at Exhibit 3, Tab 11, page 320.

[21] Respondent's Closing Submissions 30 May 2025, para 24.

[22] Respondent's Closing Submissions dated 30 May 2025, ts 98, 8 November 2024 and Joint Expert Report, item 2.1(a).

[29] ts 62, 7 November 2024; Meacham Report, Exhibit 1, page 1,270.

[31] See the evidence of Mr Holdich on ts 739 - 740, 19 March 2025 and the evidence of Dr Zurhaar; ts 99, 107, 7 November 2024.

[33] ts 458, 11 November 2024. Note that the transcript records the witness as Burkett, however the recording indicates that it is in fact Dr Zurhaar.

[35] Respondent's Submissions in Reply to the applicant's Submissions dated 13 June 2025, para 15.6.

[40] ts 62, 7 November 2024; Exhibit 1, page 1,271.

[44] Respondent's Submissions 30 May 2025, Specification - Issue 3 (from architect) - Exhibit 19, Exhibit 1, page 198 - Heritage Specification dated Nov 2014 and Heritage Drawings for Construction 2 July 2015 - Exhibit 3, Tab 21, page 921.

[45] Applicant's Submissions, 30 May 2025, pages 43 - 44.

[46] Exhibit 3, Tab 13, page 393; Exhibit 1, page 1,251.

[57] Exhibit 3, Tab 11, pages 888 - 889.

[67] Respondent's Submissions in Reply to the Applicant's Closing Submissions dated 30 May 2025, filed 13 June 2025 at para 4; see evidence of Dr Zurhaar on 11 November 2024, ts 460.

[74] Exhibit 3, Tab 10, page 274, para 20.

[75] Mr Burkett's Second Report, page 1,261.

[76] ts 204, 205, 273, 8 November 2024.

[81] ts 253, 8 November 2024 and also see clarification of this point at ts 273, 8 November 2024.

[95] Applicant's Submissions dated 30 May 2025, para 4.18.

[96] Applicant's Submissions in Reply dated 13 June 2025, para 3.44.

[97] Respondent's Submissions in Reply dated 13 June 2025, para 9.

[102] Applicant's Closing Submissions, 30 May 2025, pages 14 - 20.

[103] Respondent's Closing Submissions, 30 May 20205, para 52.

[104] Respondent's Submissions in Reply to the applicant's Submissions, 13 June 2025 at pages 5 - 6.

[112] Respondent's Closing Submissions filed 30 May 2025, para 50.6.