Turner and Perth Block & Bricklaying Pty Ltd [2022] WASAT 7

 

Turner and Perth Block & Bricklaying Pty Ltd [2022] WASAT 7
Case Name:	CC 1803 of 2020
Court:	Western Australia State Administrative Tribunal
Medium Neutral Citation:	[2022] WASAT 7
Hearing Dates:	2 & 3 August 2021, 29 September 2021 and 11 November 2021
Judgment Date:	25 January 2022
Before:	Dr B De Villiers, Member Mr R Affleck, Senior Sessional Member
Catchwords:	Building dispute – Combination of liability for design and workmanship issues – Is reliance by a builder on the design of an engineer an absolute defense against complaints about workmanship – When, if ever, should a competent builder question the design of an engineer – Responsibility of builder to adhere to approved plans and to seek approval for variations to approved plans
Parties:	Dova Danielle June Turner First Applicant   Delbert Clarence Colvin Turner Second Applicant   AND   Perth Block & Bricklaying Pty Ltd Respondent

 

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1. This dispute arises from a building complaint by the applicants as owners against the respondent as builder.  The applicants are self­represented. The respondent is represented by its Director, Mr Sam Beever, who retained counsel.  The applicants allege that the building works undertaken by the respondent in regard to the building of a garage at 18 Opal Way, Mount Richon, were not carried out in a proper and proficient manner or are faulty or unsatisfactory (s 5 Building Services (Complaint Resolution and Administration) Act2011 (WA) (BSCRA Act)). The building complaint originally comprised 91 complaint items but some of those have been remedied or withdrawn (A 2 to A 23).
2. The applicants seek a total demolition of the garage since they say it was not constructed according to approved plans; the design is not suitable for the location; and there are a multitude of workmanship issues in regard to mortar, brickwork, flooring, drainage, insulation damage and water leakage that cannot be remedied.
3. The respondent’s reply to the complaint items, other than those for which liability are accepted, is threefold:  firstly the respondent says some of the complaint items relate to the design of the garage for which the respondent is not liable; secondly the respondent accepts liability for several complaint items but there is disagreement between the applicants and respondent about the nature, extent and cost of remedial works to be undertaken; and thirdly the respondent denies the merit of several complaint items.
4. We decided for sake of pragmatism and to assist the applicants, who were not legally represented, to hear the disputes in three tranches, namely:
5. a)liabilityin regard to the design and build in accordance with design;
6. b)workmanshipcomplaint items; and
7. c)scope or costsof remedial works.
8. We explained to the parties that we will hand down our decision in regard to liability for the design and build in accordance with design as well as for the general workmanship complaint items (tranches (i) and (ii)), and then allow the parties further opportunity to make submissions and call witnesses about the nature, costs and extent of the remedial works to give effect to our finding in regard to liability and workmanship (tranche (iii)).
9. This approach was also necessitated by the divergent expectations the parties had about the possible outcome of the proceeding, with the applicants seeking a total demolition and re-build of the garage, whilst the respondent proposed payment of compensation for limited remedial works.
10. We realised that until and unless the scope of remedial works becomes clear, the parties would not be able to secure reliable quotations for the remedial works required.
11. At a practical level on day one and part of day two, we principally dealt with the liability in regard to the design and build in accordance with design issues; whilst in the remaining time the workmanship complaint items were heard.  When Mr Beever for the respondent was called to give evidence, we allowed him to give evidence in regard to all the complaint items he wanted to speak about, whereafter we gave the applicants an opportunity to cross-examine him on all of the complaint items.  We were hopeful that this approach would reduce argumentative examination and assist the applicants to focus on the merit of each complaint item.
12. These reasons therefore deal specifically with questions arising from liability in regard to the design and workmanship complaint items as identified in tranches (i) and (ii) above.
13. It became clear during the hearing that the dispute, albeit about a simple garage structure, was complex in terms of human relationships, design and build, and the legal questions and facts.  We note that the applicants stated in their closing written submissions that a potential split of liability for design between the engineer and the builder was not raised with them in the lead up to the Tribunal process.  However, the applicants did acknowledge that since the respondent became legally represented the question of liability had been raised.  We also raised it repeatedly since it was apparent that the engineer who did the design was retained by the applicants.  We also note a potential split of liability between engineer and builder had been raised during the directions hearings.  The applicants insisted nevertheless, as per their written closing submissions, that the respondent was entirely accountable for the build and that no liability for design could be placed on the designer/engineer (Applicants’ written closing submissions dated 26 November 2021).
14. The essence of the design and build complaint items is that:

• the garage as built does not reflect in some respects what was designed by the engineer, Mr Rowland Pearce;
• the design by Mr Pearce was in some respects not suitable for the location of the garage;
• the respondent undertook unauthorised variations to the approved plans without discussing those with Mr Pearce and without documenting the variations;
• the respondent did not seek approval to amend the approved plans and did not refer his variations back to Mr Pearce for retrospective approval; and
• ultimately, the applicants paid for a product that does not in all respects meet the applicable design and building standards; and the garage in material respects is not consistent with the approved plans and suffers several workmanship deficiencies.

12. The applicants, who thought they had done the right thing and followed appropriate processes, ended up with a non-complaint product for which their engineer andbuilder share liability.  Their frustration is understandable.  It is obvious that whatever remedial works are done (other than the removal of the structure), amended plans will have to be submitted to the relevant local authority (City of Armadale) for approval of the variations.

Issues to be determined

13. The following two broad issues are to be determined in these reasons:

1)           Is the respondent liable for the deficiencies arising from the design of the garage as reflected in the complaint items?

2)           Which of the complaint items are building works not carried out in a proper and proficient manner or are faulty or unsatisfactory?

Complaint items withdrawn, accepted and/or to be determined

14. The complaint items withdrawn, accepted by the respondent or to be determined by the Tribunal are as follows:

• complaint items withdrawn by the applicants:

4, 5, 7, 8, 9, 10, 11, 13, 15, 18, 19, 26, 33, 42, 43, 45, and 47;

• complaint items accepted by the respondent as its liability:

1, 2, 3, 6, 16, 17, 20, 23, 24, 27, 28, 29, 30, 32, 34, 35, 36, 37, 38, 39, 44, 46, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 63, 65, 66, 67, 68, 75, 84, 85, 87, and 90;

• complaint items to be determined by the Tribunal:

12, 14, 21, 22, 25, 27, 31, 40, 41, 59, 60, 61, 62, 64, 69, 70, 71, 72, 73, 74, 75, 76, 78, 79, 80, 81, 82, 83, 86, 88, 89, and 91.

Statutory framework, the Scott Schedule and the bundles and transcript

Statutory framework

15. The complaint is brought pursuant to s 5 of the BSCRA Act. The applicants say that the respondent provided to them ‘a regulated building service not being carried out in a proper and proficient manner or being faulty or unsatisfactory’ (5(1) of the BSCRA Act).

Scott Schedule

16. We accepted for purposes of the conduct of the hearing the Scott Schedule initially prepared by the applicants with substantial detail and cross-references added by the respondent, including references to reports by Mr R Machell of Prescient Consulting, Mr P Airey from Airey Taylor Consulting (A 938 to A 968 and A 901 to A 927) and Mr Pearce from Constructive Building Consultants (A 523 to A 526).  It is noted that a report by Mr Ross Loughton (A 71 to A 74) was included in the material filed by the applicants, but Mr Loughton was not called to give evidence.  Little weight is attached to the report other than to note that potential deficiencies were identified at the time of the writing of the report.
17. We also note the proposed orders that originated from Building and Energy – Department of Mines, Industry Regulation and Safety (Building and Energy) (A 395 to A 412), but those proposed orders were not accepted by the parties and no weight is attached to them.  We also heard evidence from Mr David Green, who was called by the applicants, but no weight is attached to his evidence since Mr Green is not a registered builder and does not have the expertise as an expert to give an opinion in regard to the matters under consideration.  Mr Green also had a conflict of interest because he submitted a quotation for remedial works to be done.

Reliance on expert reports

18. We note that the applicants indicated to Member Owen-Conway at the directions hearing held on 25 May 2021 that no orders were needed for them to file additional material or reports (Order 6 dated 25 May 2021).  Member Owen-Conway discussed with the applicants the option of them filing additional material.  The applicants did not file any additional expert reports other than the report of Mr Pearce referred to above.  We note that the applicants in their oral closing submissions suggested that they were not aware that expert reports could be filed or that expert opinion may have an important bearing on the outcome of the proceeding.  We reject this proposition.  A review of the transcripts of the respective directions hearings and particularly the orders made by Member Owen­Conway leave no doubt that the applicants were made aware of the opportunity and importance of filing expert reports.  They did, after all, file a report by Mr Pearce and called him to give evidence.  They also called Mr Green to give evidence.  Their suggestion that they have been prejudiced by not having been given an opportunity to file expert reports is rejected.

Settlement offer disclosed during directions hearing

19. A few days prior to the commencement of the hearing, the respondent objected to the inclusion of a transcript of a directions hearing into the bundle of materials on the basis that the transcript contained proposals that had been exchanged in the process of settlement discussions.  We indicated to the parties on the first day of hearing that Member De Villiers had already read the transcript prior to the objection having been received, but that Senior Sessional Member Affleck had not yet read it.
20. We noted the objection of the respondent to the inclusion of the transcript and assured the parties that we have not had any regard to those exchanges or proposals.  Member De Villiers had not re-read the exchanges in the transcript and Senior Member Affleck had not read the transcript at all.  There was also no attention given to those parts of the transcript during the hearing or submissions.  We are satisfied that we bring unbiased minds to the proceeding and that we were in no way whatsoever influenced by what had been said in the context of the directions hearings.
21. We also note that given the informal nature of proceedings in the Tribunal, it is not unknown for self-represented parties to sometimes disclose settlement proposals that had been exchanged.  This does not automatically disqualify the Tribunal as constituted to hear the matter. The test is ultimately if the members can turn their minds from the proposals and determine a matter objectively and in accordance with the relevant law and facts.  We are satisfied that we have met those benchmarks.

Evidence and submissions

• The parties made extensive written submissions, presented photographs, gave oral evidence and exchanged correspondence.  At the conclusion of the hearing the parties made oral and written submissions.  All the materials received were admitted into evidence and in these reasons for decision we make cross­references to the bundles as applicable.
• We also accepted into evidence material filed by the applicants after the hearing had started.  We did so for the sake of fairness and to remove any criticism that the applicants had not had adequate opportunity to present their best case to us.  Witnesses were called and cross­examined.  For sake of convenience we allowed the respondent’s Mr Beever to give all his evidence before he was cross-examined by the applicants in regard to each complaint item.  We did so to prevent argumentative and inflammatory examination.  Ultimately, the applicants had adequate opportunity to fully cross-examine Mr Beever.

24. For purposes of convenience the material referred to in these reasons for decisions are marked with either the exhibit number and page number (for example, A 524) or with a transcript reference indicating the page number and date of the hearing (for example, ts 22, 3 August 2021).  We conducted a site view prior to commencement of the hearing.

Agreed facts

25. The following facts are not in dispute:

1)           The applicants retained Complete Approvals to facilitate and oversee the design of and approval process for the garage.  Complete Approvals in turn used the services of Mr Pearce, a structural engineer, to design the garage and to draw detailed engineering plans.  The garage had to be designed to accommodate a car lift since the applicants wanted to do mechanical work from the garage.  A female with the name of Kosoula Chase was the contact person for the applicants at Complete Approvals.  Complete Approvals in effect offered the applicants a one stop service for the building approval which included the design, the drawing of plans and the approvals from the relevant local authority.  Complete Approvals did not however provide the building service and did not propose or appoint a builder.

2)           Complete Approvals originally did a preliminary drawing based on the instructions of the applicants and handed it to Mr Pearce to complete a detailed engineering drawing.  The contractual relationship between Complete Approvals and Mr Pearce was not disclosed to us and was not the subject of this proceeding.  It is however agreed that the applicants dealt with Ms Chase; that she passed on their instructions to Mr Pearce; and that the applicants never engaged with or met Mr Pearce during the design process.  The applicants only met Mr Pearce much later when they asked him to investigate their complaints after the garage had been built.

3)           Mr Pearce varied the plans dated 15 January 2020 (A 817) with the final plans being approved by the local authority on 12 February 2020 (A 825).  For the sake of simplicity, notable points of the plans as originally approved and as amended and finally approved are:

Notable points of the original design were:

1. Roof shape is 2 planes with join over 250UB31 running east west
2. Timber rafters running north south
3. Rafters supported by:
4. a wall plate (piece of timber) bolted to the southern wall
5. 250UB31 running east west

iii.         a wall plate bolted to the northern wall

1. 250UB25 Cranked Beam running north south does not support the rafters
2. 250UB31 Beam running east west does support the rafters

Notable points of the final design are:

1. Roof shape is 2 planes with join over 250UB25 running east west
2. Steel rafters running east west
3. Rafters supported by a steel wall plate (125 x 75 UA raker) bolted to the eastern and western walls and by 250 UB beam running north-south
4. 250UB25 Beam running north south does support the rafters

4)           The applicants had no direct contact with Mr Pearce until some time after completion of the build when complaints about the construction of the garage arose. Mr Pearce then visited the site and completed a report for the applicants in which he addressed some of the complaints (A 524-525).

5)           The respondent had limited contact with Mr Pearce.  Mr Pearce and the respondent are not in agreement about the number of times they had contact but to the extent that they had contact, it is agreed that:  their contact was cursory to discuss some variations to the plans of 15 January 2020; the respondent did not retain or instruct Mr Pearce; the respondent did not pay Mr Pearce; and the respondent was not introduced to the applicants by Mr Pearce.  The design of the garage by Mr Pearce was essentially entirely separate from the construction of the garage by the respondent.  The nature of the legal relationship between Complete Approvals and Mr Pearce is not a matter for us to investigate other than to accept as fact that Mr Pearce designed the structure according to the instructions he received from Complete Approvals.

6)           The applicants contacted and retained the respondent to build the garage.  The respondent is a registered building service provider.  The parties entered into a standard HIA Lump sum agreement on 29 January 2020 for contract price $79,973.86 (A 772).  The applicants supplied the approved plans to the respondent (A 267; 746).

7)           The plans drawn by Mr Pearce and approved by the local authority, contains a builder’s note that the garage is not designed for or approved for purposes of operating a car hoist.

8)           The respondent liaised with Mr Pearce to have variations made to the original plans of 15 January 2020. Those variations related to timber purlins of the garage and those were redesigned for steel.  The variations caused the garage to become a masonry/steel structure rather than timber and it was so approved when the building permit was issued (ts 99, 2 August 2021).

9)           During the construction process the respondent deviated from the approved plans, but those variations undertaken by the respondent were not submitted by the respondent to Mr Pearce and are not reflected by way of an amendment to the approved plans.  The nature and scope of those unapproved alterations to the approved plans is dealt with later in these reasons.

10)         The architectural design of the garage was changed by Mr Pearce, including:

1. a)west elevation – Personal Access Door (A 808) – later removed (A 813);
2. b)box gutter detail added (A 813) – at north wall presumably; and
3. c)south elevation – window shown (A 808), then removed (A 809) and long highlight window shown.

11)          The structural design of the garage was changed by Mr Pearce in the following respects:

1. a)the purlins changed from timber (120 x 35 MGP & 290 x 35 MGP) running north south to steel (Z15024) running east west; and
2. b)the 250UB31 (running east west) which supported the timber purlins, ceased to support the purlins and the 250UB25 (running north south) supported the purlins.

13)          The garage as constructed is not as shown on the approved plans, for example:

1. a)The west and east ends were drawn with vertical sheeting on the gable ends whereas the garage was built with brick gable ends (see elevation – 3 & elevation – 4 on Airey (A 937).
2. b)The south wall was drawn with a long highlight window but was built with a shorter highlight window.
3. c)The west wall was drawn single leaf and built as double leaf.
4. d)The south wall highlight window was drawn with 2 x 170 X 45 MGP lintels over and was built otherwise.

14)          The building permit was issued on 13 February 2020 on the basis of the approved plans dated 12 February 2020.  The builder’s note on the approved plans reads as follows:

The design does not take into consideration any specific requirements for car hoists and the like.  Should specific design be required for support of such an apparatus, please contact engineer for revised design.

(A 825)

15)          The applicants and the respondent were aware of the builder’s note.  They did not provide to Mr Pearce the detailed specifications of the proposed location of the car hoist.  They did not query the builder’s note and did not seek a variation of the design by Mr Pearce after the car hoist had been acquired.

16)          The respondent was aware that the applicants wanted to use the garage for installing a car hoist.  There is a dispute as to whether the respondent assisted the applicants in their search for a suitable hoist and if so, to what extent he assisted them.  We deal with this disagreement later in the reasons.

17)         The respondent gave more than one quote to the applicants (A 805 and A 771).  The parties disagree whether the email from the respondent dated 25 January 2020 meant that the car hoist was to be excluded from the quote or whether it meant that the garage was not to be used for a car hoist.  We deal with this disagreement later in the reasons.  It is noted however that Mr Airey says that in his opinion the thickness of the slab of the garage in general and the thickening of the slab where the car hoist base plates are located, are more than adequate to accommodate the car hoist (ts 236; 238 and 264, 3 August 2021).  We accept, for reasons explained later in these reasons, the evidence and opinion of Mr Airey.

18)          There was no request from the respondent or the applicants to Mr Pearce or to Complete Approvals for the approved plans to be amended to allow for a car hoist to be erected.

19)          The concrete for the garage was poured on 24 April 2020.  There is a dispute between the parties about the role of the respondent when prior to or during the pouring of the concrete, two holes were dug and filled with concrete for the footings of the car hoist.  We deal with this disagreement later in the reasons.

20)         The car hoist was acquired by the applicants and was installed on 9 June 2020 by a contractor, Mr Noel Singleton, who was retained by the applicants.  The car hoist was installed a day prior to practical completion (A 334).  The respondent did not install the car hoist and the applicants did not act on behalf of the respondent when they caused the car hoist to be installed.

Issues to be determined

Questions of liability

26. The complaint items raise general questions about liability arising from the design of the garage followed by specific complaint items about workmanship.  It was made clear to the parties during the course of the directions hearings and the hearing that determining liability will be complex since we cannot make findings or orders against Complete Approvals or Mr Pearce since they did not provide the regulated building service for the garage under the BSCRA Act.  We can only make findings and issue orders regarding the role of the respondent in the matter.  If the applicants wish to commence proceedings against Complete Approvals and/or Mr Pearce, it falls within another jurisdiction.  In the reasons that follow we address at first the general questions of liability arising from the design of the garage before we deal with the individual complaint items (ts 3, 29 September 2021).

Did the applicants instruct Complete Approvals to design the garage for installation of a car hoist?

27. The relationship between the applicants, Complete Approvals and Mr Pearce, and any litigation that may arise from that relationship is not the subject of our jurisdiction.  We did not have access to the contractual arrangements between the applicants and Complete Approvals and we also did not hear any evidence from Complete Approvals.  Whether Complete Approvals met the terms of contract is for another jurisdiction to determine.  We did however repeatedly encourage the parties during the hearing to consider to arrange a mediation session with Complete Approvals, Mr Pearce and the respondent in order to attempt to reach an overall settlement that could see all of the remedial works completed (ts 293-295, 3 August 2021).  The Tribunal also suggested a mediated outcome in the directions hearings that took place on 16 March 2021 (A 1021) and 25 May 2021 (A 1084).  We consistently encouraged a mediated outcome during the course of the hearings since it became apparent that although many of the complaint items raised may be successfully remedied, there was some complexity in regard to liability and for those to be resolved a pragmatic approach where the engineer and builder work together, would be ideal (ts 294, 3 August 2021 and ts 7, 29 September 2021).   We now again repeat that encouragement and will adjourn the matter for mediation to allow the parties a final opportunity to resolve the dispute by consent. If mediation fails, we will commence the final stage and determine the scope or cost of remedial works but only to the extent that it affects the respondent.
28. We note that the applicants say they made it clear to Complete Approvals that they wanted the garage to be designed to accommodate a car hoist.  In light of all the evidence before us, it is likely that they did indeed give such an instruction to Complete Approvals.  Mr Pearce also acknowledged that he was instructed by Complete Approvals to design the garage for a car hoist, but because the exact technical specifications of the car hoist and its intended location had not been provided to him, he did not design reinforcement for the place where the car hoist baseplates were to be located.  This explains why it was noted on the approved plans that the design of the floor is not intended to accommodate the installation of a car hoist.
29. We find that although the applicants had in all likelihood instructed Complete Approvals to design a garage that could accommodate a car hoist, the approved plans did not allow for the installation of a car hoist.  We find however, for reasons set out below, that the floor of the garage and the reinforcing for the hoist footplates are nevertheless adequate for the installation of the selected car hoist.  A variation to the approved plans would likely have to be sought to ensure consistency between plans and the garage as built.

Who retained and instructed Mr Pearce and the respondent respectively?

30. It is agreed that the applicants identified and approached the respondent to undertake the building works.  The applicants found the respondent via a website and entered into negotiations with him (A 643).  Neither Complete Approvals nor Mr Pearce had any role in identifying the respondent, or to introduce him to the applicants, or to retain him to complete the building works.
31. It is agreed that Mr Pearce was retained and instructed by Complete Approvals and although he may have had some contact with the respondent during the final stages of the design to adjust aspects of the design, their contact was minimal. Mr Pearce was, in essence, the engineer of the applicants.

• The respondent confirms that he had never had dealings with Complete Approvals. Mr Pearce says that he invoiced Complete Approvals for all his work, including variations to the plans, and that he was paid by Complete Approvals (ts 162, 3 August 2021). We were not provided with the contractual documents between the applicants and Complete Approvals and Complete Approvals was not called to give evidence. If there is a dispute between the applicants and Complete Approvals, that dispute does not fall within the jurisdiction of this Tribunal since neither Complete Approvals nor Mr Pearce provided to the applicants a regulated building service under the s 3 of the BSCRA Act. The nature of the relationship between the applicants and Complete Approvals and Mr Pearce is not for us to determine and disputes arising from that relationship do not fall within our jurisdiction.
• We find that:

1. i)the applicants retained and instructed the respondent to undertake the building works;
2. ii)Complete Approvals, with the assistance of Mr Pearce, was responsible for the design and approval of the garage;

iii)         Complete Approvals appointed Mr Pearce albeit that the terms and conditions of his appointment were not the subject of this proceeding; and

1. iv)the applicants identified; retained and instructed the respondent without any involvement by Complete Approvals or Mr Pearce.

Did the respondent assist the applicants to acquire a car hoist?

• The applicants say they discussed at various stages of the negotiations with the respondent and during the building process (and sent messages and emails to that effect) that they wanted to use the garage for purposes of a work area where vehicles could be repaired and a car hoist be installed.  The applicants say they relied on the respondent to help them identify a suitable car hoist.  The applicants say that the respondent told them that his brother was an engineer and he would give advice for the floor of the garage to be reinforced to accommodate the footings required for a 4 ton hoist (ts 52-53, 2 August 2021).  They say they had no reason to doubt the respondent or what he proposed (A 341).

35. The applicants refer to the email dated 11 March 2020 (Exhibit F) in which Ms Jessie Bond on behalf of the respondent informed the applicants that the respondent ‘had to sit with our engineersfor two days to try to remedy everything ahead of us to ensure there are no issues during construction (Tribunal emphasis).  This includes the photos of Del of the roof structure, the correct footing detail requirements and the earthwork requirements’.  The respondent denies that he had relied on the engineering advice of his brother or that he had assisted the applicants to secure a car hoist (A 756).  He says he was aware that the applicants wanted to use the garage for working on vehicles, but it was up to them to secure a car hoist.  He says his quote was only to build the garage for residential use and to pour a concrete floor consistent with the approved plans.

• We prefer the evidence of the applicants.  We find so for the following reasons:

1)           The respondent not only knew of the intention of the applicants to install a car hoist in the garage but he also actively participated in their search for a car hoist.  The respondent was not contracted to provide a car hoist but he knew of the intention of the applicants and he assisted them.  The respondent’s involvement to assist the applicants continued well after the contract was signed.  Although the applicants ultimately found a car hoist on their own, the respondent was actively part of the process to assist them and to build the garage to accommodate the car hoist when purchased.

2)           The applicants could not at the time of the drawing of the plans give Mr Pearce the exact dimensions or technical specifications of the car hoist since they were still searching for a suitable car hoist with the assistance of the respondent.  When all the emails, SMS messages and other communications are taken into consideration, we accept that the applicants were told by the respondent that his brother was an engineer and that he could advise the respondent on the necessary variations to reinforce the concrete once a suitable car hoist was found.  The exchanges of emails and telephone messages overwhelmingly support the applicants’ version of events and raise serious questions about the credibility of evidence given by the respondent.  In this regard we refer for example to the following pages at B 63-71 where there is clear evidence of the respondent’s active participation to help the applicants to find a suitable car hoist.

3)           The respondent’s assistance in locating a car hoist commenced prior to the applicants entering into the contract with the respondent and continued thereafter until such time as when the car hoist was installed by the applicants, a day prior to practical completion.  We refer for example to the email of 11 March 2020 in which Ms Bond, a co-director of the respondent, (ts 141, 11 September 2021) clearly acknowledges that the respondent was redesigning the garage to accommodate the requirements of the applicants.  We accept that the car hoist was removed from the contract and that the applicants acquired and installed the car hoist, but the respondent, despite his denial, was aware throughout the completion of building works, of the intention of the applicants to install a car hoist in the garage.

4)           The respondent did not raise any concern or objection when the applicants, prior to practical competition, installed the car hoist.  This reinforces our finding that the respondent:

• knew that the garage was intended to be used for a car hoist;
• assisted the applicants in their search for a car hoist;
• made unapproved variations to the plans for purposes of the design of the garage and car hoist footings; and
• took responsibility for the pouring of concrete for the purposes of reinforcement for the car hoist to be placed.

37. The answer to the question is affirmative, namely that the respondent:

1)           knew the applicants wanted to install a car hoist;

2)           assisted the applicants to identify a suitable car hoist;

3)           knowingly deviated with the consent of the applicants from the approved plans to provide additional reinforcing for the footings of the car hoist; and

4)           was aware prior to practical completion that the car hoist had been installed by the applicants and he did not object to the installation.

38. The respondent is not however liable for the actual installation of the car hoist since it was organised by the applicants through their own agent, Mr Noel Singleton.

Did the amendment to the respondent’s quote dated 25 January 2020 arise due to the applicants changing the intended use of the garage or to merely remove the car hoist from the quote?

• The applicants say that they had always intended to use the garage for the purposes of a car hoist.  They say the respondent was aware of their intention (and we agree with them).  The reason why the quote of 25 January 2020 was adjusted was to better suit their budget and not to change the intended use of the garage.  The applicants say they removed several items from the quote, including the air-conditioner and the car hoist, because they believed they could secure those items at a cheaper price (ts 70-71; 73, 2 August 2021).

40. The respondent says the amended quote indicates that the applicants sought a change of use of the garage after the plans had been approved without provision for a car hoist and that he subsequently amended the quote.  The respondent says that any variation to the contract between the parties related to minor items and not to any matter the subject of this proceeding (A 748).
41. We prefer the evidence of the applicants, namely that –

1)           they remained unequivocal in their communication with the respondent that the garage was to be used for purposes of a car hoist;

2)           due to financial constraints they requested the respondent to remove the car hoist and the air­conditioner from the quote of 25 January 2020; and

3)           at the stage of the quote they could not yet provide the exact dimensions of the car hoist but that they and the respondent nevertheless continued with discussions about the use of the garage and their efforts to locate a suitable 4 ton car hoist and that the respondent was to reinforce the floor of the garage accordingly.  This finding is consistent with the respondent’s response during cross-examination when he admitted that the removal of the car hoist from the quote was not indicative of an intention to change the use of the garage, but rather because the applicants wanted to self­source the car hoist (ts 117, 2 August 2021).

42. We therefore find that the parties, at the initiative of the respondent, orally agreed for the respondent to deviate from the approved plans and to dig two holes and fill them with concrete for the purposes of placing the footings of a car hoist.  This was consistent with the applicants’ request (D 843).  The respondent’s denial lacks credibility and is not consistent with the actions taken by the respondent.

• We therefore find that the quote dated 25 January 2020 did not signal a change of use of the garage on the part of the applicants but rather a reduction in the quote due to financial constraints on the part of the applicants at the time.

44. We further find that the respondent was aware that the applicants wanted to install a car hoist in the garage and that he actively assisted them to identify a suitable car hoist and to reinforce the concrete where the footings of the car hoist had to be located.

Who was in control of the building site when the two holes were dug and reinforced to accommodate the base plates of the car hoist?

• The applicants say that the respondent:
• at all material times had control of the building site;
• was in control of the workers;
• directed the workers to dig the two holes where the car hoist footings were to be located; and
• knew the base plates of the car hoist would be placed where the holes were dug.

46. The respondent says the applicants:

• interfered in the building work process;
• directed workers to do certain works;
• directed the workers to dig the holes; and
• although he had seen the holes being dug and filled with concrete, he does not take responsibility for them (A 757).

47. Mr J. Saunders, who was responsible for the pouring of the concrete, says that he was retained by the respondent; that the respondent was present when he poured the concrete; that he saw the holes and found nothing untoward about it; and that he filled the holes with concrete (ts 126-127, 3 August 2021).  Mr Saunders says the concrete floor poured was as designed 150 millimetres in the back of the garage and 100 millimetres in the front part of the garage and the driveway.  The holes where the car hoist footplates are placed, added to the reinforcing of the floor.
48. Mr Airey says that his visual inspection of the photographs causes him to agree that the slab to the back, where the car hoist had been installed, is around 150 millimetres (ts 234-5, 3 August 2021).
49. We accept the evidence of the applicants and reject the evidence of the respondent (A 756-759).  We find that the respondent:

1)           was in control of the building site;

2)           was more likely that not in control of the workers;

3)           knew ahead of time that the car hoist would be installed and where it had to be located;

4)           had employed and paid the workers who dug the holes for the placing of the hoist footplates;

5)           was aware that the applicants wanted the concrete to be reinforced to bear the loading of a car hoist;

6)           was responsible for the digging of the two holes;

7)           retained the concreter to fill the holes (A 305; ts 81-84, 2 August 2021).  This finding takes into account that the respondent was present when the concrete was poured.  The photograph (A 843) shows the respondent in the bobcat with the holes clearly visible (A 757); and

8)           employed workers to prepare the floor to pour the concrete.

50. We reject the evidence of the respondent namely that the applicants in effect caused the holes to be dug without the approval of the respondent.  The respondent, who was in control of the building site, did not object to the holes being dug or filled with concrete albeit that he knew the holes had not been approved on the plans.  The email of 11 March 2020 confirms that the respondent not only knew about the proposed location of the car hoist, but also sought engineering advice and had unauthorised adjustments made to the approved plans by digging the two holes for reinforcement in order for the baseplates of the car hoist to be accommodated.  The respondent’s credibility suffered since he was clearly intent on escaping liability during the hearing and in the process of giving evidence, adjusted his position.
51. We find that the respondent:

1)           took full responsibility to dig the holes where the footplates of the car hoist were to be located;

2)           reinforced the holes to suit the selected car hoist; and

3)           filled the holes with concrete in full knowledge that he was deviating from the approved plans (ts 117, 2 August 2021)

Did the respondent knowingly deviate from the approved plans by reinforcing the concrete to accommodate the footplates of the car hoist?

52. The applicants and the respondent acknowledge that they were aware of the builder’s note on the approved plans which stated that the floor had not been designed for purposes of installing a car hoist.
53. The applicants say they discussed their needs with the respondent and he said he could assist them in preparing the floor for the intended use.  They say he told them that his brother was an engineer and that he (the brother) would do variations to the approved plans.  They go on to say that although they indicated where they wanted the floorplates of the car hoist to be placed, the respondent dug the holes and the respondent’s contractor filled the holes with concrete.  The applicants acknowledge that the respondent did not install the car hoist.  It was installed by an independent installer appointed by the applicants.

• The respondent says that the applicants deviated from the approved plans by digging the holes and that Mr Saunders, the concreter sub­contractor, simply filled up the holes as he was instructed to do by the applicants.

55. We note that the applicants say they made it clear to Complete Approvals that the garage was to be designed for purposes of a car hoist.  Mr Pearce had said that he could not design the floor for a car hoist since the exact dimensions of the car hoist had not been provided to him.  Mr Pearce on the other hand also said in evidence that he was instructed the garage would only be for normal vehicle use (ts 94, 2 August 2021).

• We note that in Mr Pearce’s expert report for the applicants dated 27 November 2020, he makes observations about the thickness of the concrete slab, but does not mention that he did not design the floor for the purposes of a car hoist.  It seems to have missed his attention that the floor was not consistent with the approved plans for which he was responsible since the footings for a car hoist, which had not been designed by him, had been installed.  He nevertheless made no observations in his report about the installation.

57. Mr Pearce was vague and generally not helpful in his evidence.  He was ambiguous in answers; could not recollect substantial detail; could not produce notes he had kept of his visit to the building site when he did the inspection for the applicants; and could not provide measurements that supported his opinion.  Mr Pearce was clearly conflicted, and his evidence cannot be treated with the same weight as those of an independent expert.
58. Since this proceeding does not make findings or orders about the liability of Complete Approvals or Mr Pearce, and since Complete Approvals did not give evidence, we simply note that Mr Pearce admitted to being instructed to design the garage for purposes of a car hoist (ts 95, 2 August 2021) but he did not do so because the details of the car hoist were not available at the time.  It remains unclear why Complete Approvals did not discuss with the applicants the builder’s note and why, when the car hoist had been secured, the applicants and respondent did not discuss with Complete Constructions a variation to the approved plans.  The applicants may have thought that it was all in order for the respondent to discuss variations to the approved plans with his brother, but the respondent as a registered builder should have known that variations to approved plans, particularly variations that conflict with the builder’s note on the plans, must be discussed the engineer who drafted them and approval of the variations ought to be obtained.

• We will refer the conduct of the respondent to Building and Energy to consider disciplinary steps.  Building and Energy may also want to consider the allegation that the respondent had misrepresented his experience and size of his business to the applicants in the negotiations leading up to the parties entering into the contract with him (A 346).

60. We accept the evidence of the applicants in regard to their interaction with the respondent and find that the respondent knowingly deviated from the approved plans by causing the holes to be dug to provide reinforcing for the car hoist and that the respondent caused the holes to be filled with concrete.
61. We find that the respondent:

1)           knew that the applicants wanted to install a car hoist;

2)           had told the applicants that his brother who was an engineer had recommended the nature and extent of reinforcing required (A 341);

3)           assisted the applicants to identify a suitable car hoist;

4)           had taken advice about varying the plans according to the email of 11 March 2020; and

5)           caused the holes to be dug and filled for purposes of reinforcement.

62. We also find that although the applicants caused the car hoist to be erected by an independent contractor, this took place prior to practical completion of the garage; that the respondent had witnessed the car hoist installed; and that the respondent did not raise any concern about the suitability of the reinforcing of the concrete nor the location of the hoist or the deviation from the approved plans.  The evidence of the respondent is discredited by him attempting to deny liability in the face of incontrovertible evidence of his involvement in and control of the entire building process.

Did the respondent otherwise knowingly deviate from the approved plans without seeking approval of the variations?

• The respondent admits that he knowingly deviated in some respects from the approved plans and that he did not discuss those variations with Mr Pearce nor did he seek approval, not even retrospectively.  This leaves the applicants with a building which, as is shown in more detail below, has not been designed by Mr Pearce to suit the location; is not built by the respondent in accordance with the approved plans; and is subject to several defects.  The applicants would have to seek approval from the relevant local authority for the following:

1. a)variations to the design, along the lines suggested by Mr Airey;
2. b)the discrepancies between the approved plans and the building as built, and
3. c)the remedial works arising from this proceeding.
4. The respondent admits to not having discussed the variations with Mr Pearce although he knew he had to seek approval.  The respondent says for example that he ‘put the legs on the structure instead of tie­down rods’ and that he was ‘horrified about it collapsing’ (ts 111, 2 August 2021).

• The most prominent examples of the respondent failing to comply with the design are:

1. a)the engaged piers on the northern wall do not have a 10 diameter rod centrally placed and tied to the roof structure (A 524);
2. b)the internal thickenings to the slab, detailed on drawings Footing & Ground Slab Details STE-2 and STE-0 were omitted but it is noted that it is Mr Airey’s opinion that no remediation is required;
3. c)the roof tie down required at note 4 on STE-2 was omitted;
4. d)note 3 on STE-2 required that the columns be fixed to footings with 2 x M12 anchors – they were installed on top of the slab and should have been on top of the footings (A 525);
5. e)the 250UB25 cranked beam was to be attached to the adjacent brick pier but was not attached (A 525);
6. f)the SC1 Columns (50 X 50 X 4.0 SHS) were not installed (A 524);
7. g)the floor was saw cut (at locations not required or designed by Pearce) (A 524).  We note however that in the opinion of Mr Airey (A 929) the saw cut is not dangerous.  Should the applicants want to enhance capacity, the recommended way is to inject superfine cement, but this is not mandated by Mr Airey or by us; and
8. h)the respondent caused the reinforced holes to be dug without seeking approval to the variations (A 759).
9. We find that the liability is shared by the applicants (since they instructed Complete Approvals who in turn retained Mr Pearce) and the respondent.  The respondent must be held liable to cause the approved plans to be amended to reflect what he had built, including the remedial works for which he is responsible and to obtain approval thereof.  The respondent is however not liable for the design shortcomings of Complete Approvals and Mr Pearce who were acting for the applicants.  This is a matter for the applicants to resolve with Mr Pearce and Complete Approvals.
10. We note that according to Mr Airey the design adjustments to be made to bring the garage to standard are the following:

1)           the roof requires cross bracing in the plane of the roof;

2)           the purlins require two rows of bridging;

3)           the central beam requires fly braces at every purlin;

4)           the steel rakers at both the east and west ends need to be fixed to the brick wall;

5)           the steel columns are required to be tied to the brick wall with chemical anchors;

6)           a steel column is required next to the garage door opening of the western wall;

7)           a hold down column is required at mid span of the western wall raker;

8)           an additional inner leaf of 110 millimetre brick tied to the existing 90 millimetre brick leaf is required with cavity filled to form a retaining wall – the cavity fill to be taken 200 millimetres above the retained ground level;

9)           an additional inner leaf of 90 millimetre brick tied to the existing 90 millimetre brick leaf is required for the exposed eastern end of the southern wall and cavity filled;

10)         a steel column is required at the southern wall to tie the central roof beam down;

11)          a steel column is required to be connected to the face of the north brick pier of the eastern wall tied to the brick wall;

12)          an additional inner leaf of 90 millimetre brick tied to the existing 90millimetre brick leaf is required for the eastern wall either side of the new column C1 to the height and the cavity filled; and

13)          a pressed metal frame and a new steel column is required to stabilise the exposed end of the southern wall.

68. It appears from the above reasoning that Complete Approvals, Mr Pearce and the respondent have shared responsibility to cause the plans to be amended and approved, but we can only make orders that relate to the respondent.  We trust however that the respondent, Complete Approvals and Mr Pearce would, with the assistance of these reasons, find a way to address the identified shortcomings set out in these reasons and how those can be remedied.

Were the approved plans amended and re-submitted for approval?

69. The parties agree that the approved plans had not been amended to reflect the variations that had been made by the respondent in regard to the placing of the car hoist or any of the alterations to the design of the garage frame or to the building works otherwise.  In its current state the reinforcing of the floor for the car hoist remains unapproved albeit it is the evidence of Mr Airey, and we accept it, that the thickening of the floor is adequate to bear the weight of the car hoist (ts 236; 238; 264, 3 August 2021).  The garage frame is, as explained below, not suitable for the location and this is primarily the responsibility of Mr Pearce. Simultaneously the respondent deviated from the plans without seeking approval from Mr Pearce or the relevant local authority.
70. Any variations to the approved plans, whether as a result of the respondent’s own design, failure of the respondent to adhere to the plans, or remedial works as a result of this proceeding, would have to be submitted to the relevant local authority for approval.  We cannot comment whether the use of the garage for purposes of a car hoist is a use that would be approved by the relevant local authority.  That is a question that does not fall within the scope of the current proceeding.

Observations about credibility of respondent regarding the issue of liability

71. We find the respondent not to be a credible witness regarding the variations he initiated to the approved plans.  We find so for the following reasons:
72. a)The respondent knew of the builder’s note on the approved plans but he nevertheless went ahead and made recommendations to the applicants, ostensibly on the basis of the advice he sought from an engineer, about how the floor could be reinforced to accommodate a 4 ton car hoist.  The engineer referred to in the email by the respondent dated 11 March 2020 was not called to give evidence and no amended drawings were provided to us.
73. b)The respondent removed the car hoist from the quote, but then actively assisted the applicants to locate a suitable car hoist, albeit that the respondent later denied any active involvement.  The applicants ultimately located, bought and installed the car hoist, but the respondent not only knew of the intended use of the garage, he also assured them that adjustments would be made by an engineer to ensure the floor was adequate for purpose, that the footings of the car hoist would be on reinforced concrete and he oversaw the digging of the two holes and the pouring of the concrete.
74. c)The respondent was in control of the site when the holes for the car hoist footings were dug by his workers and filled with concrete by his sub-contractor.  His proposition that the applicants interfered with his workmen is rejected since those persons were not called to give evidence; the respondent was present when the holes were dug; and the respondent was present when the concrete was poured (ts 106­107, 2 August 2021).
75. d)The respondent says that he thought the garage was only for normal domestic use, but he fails to explain to our satisfaction, why if that were the case, he did not intervene when the holes were dug; why he assisted the applicants to locate a car hoist; and why he did not intervene when the concrete was poured or why he did not object when the car hoist was erected prior to practical completion.  The respondent failed to respond to our satisfaction during the hearing to the email of 11 March 2020 and we accept that this email is consistent with the applicants’ evidence namely, that the respondent was actively involved in making variations to the approved plans on the basis of advice he said he had obtained, without him discussing those variations with Mr Pearce or seeking approval for variations from the relevant local authority.
76. e)The respondent in other material respects regarding the frame of the garage and the walls deviated from the approved plans without having the variations documented or approved.  He failed during the hearing to actively assist us to ascertain exactly where he deviated from the approved plans.  It was left to the applicants and us to try to work out what parts of the building works were in accordance with the plans and what parts were not in accordance with the plans.  The record keeping of deviations by the respondent was for all practical purposes non-existent.  The respondent’s conduct is substantially below what is expected of a competent builder.  The applicants had to endure the angst and stress of a hearing, in part because the respondent had failed to build in accordance with the approved plans and where he deviated from the plans, he failed to have those variations approved.
77. f)The respondent in effect deviated in the building works from the approved plans without discussing those variations with the engineer Mr Pearce and without causing the variations to be properly documented or approved by the local authority.

Was the design of the steel frame adequate for the location of the garage?

72. In his expert report Mr Airey (A 901) makes two relevant observations in regards to the liability question as far as the design of the frame of the garage is concerned.  As mentioned above, the applicants say the respondent is responsible for all defects, including those related to design, since he built the garage.
73. The respondent admits he is liable for some defects but to the extent that he built in accordance with the design, he says he merely followed the approved plans that were drawn by Mr Pearce and provided to him by the applicants. The respondent says that if there are any deficiencies in design, those do not fall within his responsibilities as a builder pursuant to s 5 of the BSCRA Act.
74. Mr Machell and Mr Airey agree that a builder would, generally speaking, be slow to challenge the approved design of an engineer.  However, both experts also agree that in practice there may be circumstances where a competent builder should know that he must revert back to the engineer or where the builder is expected to have adequate knowledge to realise that a design is not to standard.
75. The essence of Mr Airey’s and Mr Machell’s opinions, and we agree, is that relying on a design cannot be a complete and absolute defence by the respondent against a complaint under s 5 of the BSCRA Act. There may be shortcomings in the design that ought to be noticeable within the knowledge of a competent builder, at least to the extent that he would raise the issue with the design engineer. Such shortcomings cannot be remedied by the builder at his own initiative but must be discussed with the engineer and, if necessary, the approved plans must be varied.
76. Mr Airey says the garage is located on the top of a hill in the Armadale area around 150 metres above sea level.  Two of the comments Mr Airey makes are particularly relevant as far as the design is concerned.  Firstly, he says the roof as built is not consistent with the drawings (A 910).  He says the roof beam is shown on the drawing to be supported by brick piers but it is constructed with a steel column at the north side and built into the external skin on the south side.  Secondly, he says that the design was not suitable for the location since it did not adequately cater for the westerly wind loading (A 911).  He says the roof of the garage would, in light of its location, experience a 70% increase in wind pressure compared to a similar structure at sea level.  The roof had not been designed for such additional pressure.  Mr Airey said in oral evidence that it is ‘quite basic’ that allowance should have been made by Mr Pearce for the wind in the specific location (ts 174, 3 August 2021).  To add to the design deficiencies, the respondent deviated from the plans – for example, the design provided for a 10 diameter rod cast into the footing and fixed to the roof framing at each attached pier (A 817 and A 825).  This was not built as designed.  This omission resulted in an unrestrained brick wall and in the roof not being tied down.  In addition, Mr Airey says that the lack of the top wall restraint in combination with the 90 millimetre single skin brick is non-compliant for the required 60/60/60 fire rating mandated in the National Construction Code Volume 2for class  building walls within 900 millimetres of the allotment boundary (A 911).
77. Mr Airey further says that the roof purlins as designed and as constructed are inadequate to resist the wind uplift forces.  The central steel beam is also inadequate to resist the wind uplift forces (ts 177, 3 August 2021).  He also says that the tie down arrangements are inadequate and that this was an issue of design, not of construction (ts 178, 3 August 2021).

• Mr Airey concludes that the walls are inadequate to resist the code specified design wind loading; the north wall is inadequate to provide the required fire rating; and the roof structure is inadequate to resist the design wind loading (A 912).  The inadequacy of design by Mr Pearce is reflected in the following statement made by us to Mr Pearce after he attempted to explain how the roof ought to have been attached to the wall, but there was no design for this to occur:

Well, the Tribunal has great difficulty when you [Mr Pearce] say that you put a note on a drawing requiring a building to fix to a roof member when there are no roof members there on that drawing.

(ts 197, 3 August 2021)

79. The following is a summary of the design shortcomings pointed out by Mr Airey:

1)           the roof requires cross bracing in the plane of the roof;

2)           the purlins require two rows of bridging;

3)           the central beam requires fly braces at every purlin;

4)           the steel rakers at both the east and west ends need to be fixed to the brick wall;

5)           the steel columns are required to be tied to the brick wall with chemical anchors;

6)           a steel column is required next to the garage door opening of the western wall;

7)           a hold down column is required at mid span of the western wall raker;

8)           an additional inner leaf of 110 millimetre brick tied to the existing 90 millimetre brick leaf is required with cavity filled to form a retaining wall –  cavity fill to be taken 200 millimetres above the retained ground level;

9)           an additional inner leaf of 90 millimetre brick tied to the existing 90 millimetre brick leaf is required for the exposed eastern end of the southern wall and cavity filled;

10)         a steel column is required at the southern wall to tie the central roof beam down;

11)          a steel column is required to be connected to the face of the north brick pier of the eastern wall tied to the brick wall;

12)          an additional inner leaf of 90 millimetre brick tied to the existing 90 millimetre brick leaf is required for the eastern wall either side of the new column C1 to the height and cavity filled; and

13)          a pressed metal frame and a new steel column is required to stabilise the exposed end of the southern wall.

80. Mr Airey makes recommendations about how these can be remedied (A 913) and we’ll deal with those in the next stage of the proceeding under the specific complaint items.
81. We heard from Mr Airey and Mr Pearce during a session of concurrent evidence.  We noted that Mr Pearce is, in effect, not an independent expert witness since he is the person who designed the garage.  It is not unreasonable to say that his opinion is likely to be influenced by his own interest and even if he was not actually biased, in the eyes of the parties he would be seen to be potentially biased.
82. Mr Pearce’s evidence was not particularly helpful and we prefer the opinion of Mr Airey in regard to the shortcomings in the design of the garage.  Mr Airey undertook a site visit; he kept proper records of what he observed; he made drawings of shortcomings to the design and possible remedial works; and he gave evidence in a balanced manner as would be expected of an expert.  Although he was called by the respondent, Mr Airey did not in our view protect the interests of the respondent.  He was objective, professional and unbiased.
83. We prefer the evidence and opinion of Mr Airey for the following reasons:

1)           Mr Pearce was clearly conflicted in his opinion; he was defensive about his work; and he was reluctant to engage with Mr Airey during their concurrent evidence in a manner we would expect of experts.  Mr Pearce repeatedly re-stated his position that the garage was compliant with the required wind loading but he did not offer any evidence; measurements or calculations to support his opinion (ts 188, 3 August 2021).  He was obviously defending his own design rather than being an expert who reflected critically on the design of another engineer.

2)           Mr Pearce acknowledged that when he designed the garage he did not take into account and he did not factor into the design any additional wind loadings due to the location of the garage.  He basically designed the garage for normal conditions at sea level without consideration of its location.

3)           Mr Pearce acknowledged that when he designed the garage he relied principally on google earth for information (ts 187, 3 August 2021).  He did not make any adjustment for the elevation of the garage above sea level and neither he nor anyone from his office visited the site (ts 188, 3 August 2021).  He admitted to not having done any formal calculations about potential impact of wind load (ts 188 and 190, 3 August 2021).  He also conceded that the software he used to design the garage did not allow for higher wind load ratings (ts 190, 3 August 2021).  It was in essence a desktop design without any consideration of site peculiarities.  We concur with Mr Airey that the failure of Mr Pearce to allow for wind loading is ‘totally inadequate’ and that the exposure of the garage to wind pressure is ‘extreme’ (ts 191, 3 August 2021).

4)           Mr Pearce formulated opinions about the appropriateness of the concrete floor and footings by relying on what he was told by the applicants and not by undertaking his own measurements, testing or other investigations.  He did not keep field notes and was unable to respond in depth to the questions put to him about his site visit.

5)           Mr Pearce appeared to be intent on escaping any liability and hence his opinions seemed to be motivated by self­interest and were therefore not helpful.  Mr Airey, who visited the site and kept detailed notes, gave a detailed analysis of the shortcomings of the design and offered constructive solutions on how those could be addressed without having to pull down the entire structure.  Mr Airey was adamant that the shortcomings in the design of the garage as well as the inadequacies in construction of the garage and the floor can be remedied provided that the prescribed corrective remedial works are done -after the plans have been amended and approved.  The applicants said in their closing submissions that the multiple complaint items cannot be remedied and the only option is to demolish the garage and to rebuild it.  We accept the opinion and evidence of Mr Airey.

Findings about liability

84. In summary we find the following about the question of liability:

1)           The steel structure of the garage was not designed for the wind loadings it is likely to experience.  This is primarily a matter for the applicants to pursue with Complete Approvals and Mr Pearce.  We explained above and under the relevant complaint items the exact nature of the shortcomings and that these were not within the skillset of a competent builder to identify. Variations of the approved plans would need to be sought to secure approval for the garage to comply with the recommendations made by Mr Airey.  Since the design falls within the brief of Mr Pearce who was retained by Complete Approvals which in turn was retained by the applicants, the liability for faulty design of the garage frame and potential remedial works recommended by Mr Airey remain with the applicants, Complete Approvals and Mr Pearce to resolve.

The remedial works recommended by Mr Airey can be summarised as follows:

1. a)the roof requires cross bracing in the plane of the roof;
2. b)the purlins require two rows of bridging;
3. c)the central beam requires fly braces at every purlin;
4. d)the steel rakers at both east and west ends need to be fixed to the brick wall;
5. e)the steel columns are required to be tied to the brick wall with chemical anchors;
6. f)a steel column is required next to the garage door opening of the western wall;
7. g)a hold down column is required at mid span of the western wall raker;
8. h)an additional inner leaf of 110 millimetre brick tied to the existing 90 millimetre brick leaf is required with cavity filled to form a retaining wall – cavity fill to be taken 200 millimetres above the retained ground level (Liability for this complaint item, as explained below, is shared by the respondent);
9. i)an additional inner leaf of 90 millimetres brick tied to the existing 90 millimetre brick leaf is required for the exposed eastern end of the southern wall and cavity filled (Liability for this complaint item, as explained below, is shared by the respondent);
10. j)a steel column is required at the southern wall to tie the central roof beam down;
11. k)a steel column is required to be connected to the face of the north brick pier of the eastern wall tied to the brick wall;
12. l)an additional inner leaf of 90 millimetre brick tied to the existing 90 millimetre brick leaf is required for the eastern wall either side of the new column C1 to the height and cavity filled (Liability for this complaint item 1, as explained below, is shared by the respondent); and
13. m)a pressed metal frame and a new steel column is required to stabilise the exposed end of the southern wall.

2)           The respondent cannot be held liable for the overall inadequacies in design of the garage since he had no direct relationship with Mr Pearce.  The approved plans were given to him by the applicants to build and he could reasonably rely on the drawings of an engineer as approved by the local authority.  Although we accept the opinion of Mr Airey that the design deficiencies of the garage can be remedied, it is for the applicants to pursue with Complete Approvals and Mr Pearce the options about how approval can be sought for the necessary amendments to be made to the approved plans.  It falls outside our jurisdiction to direct them, but we will offer them and the respondent an opportunity at mediation in order for the complaint to be resolved in its entirety.

3)           The respondent did not comply with some aspects of the design.  The respondent is liable for those failures and, as is explained in more detail under the relevant complaint items below, the respondent is held accountable for the workmanship.  The following are items where the respondent failed to comply with the design and for which the respondent is liable to remedy:

1. a)the engaged piers on the northern wall do not have a 10 diameter rod centrally placed and tied to the roof structure (A 524);
2. b)the internal thickenings to the slab, (A 826)  detailed on drawings Footing & Ground Slab Details STE-2 and STE-0 were omitted but it is noted that it is the opinion of Mr Airey that no remediation is required;
3. c)the roof tie down required at note 4 on STE-2 was omitted
4. d)note 3 on STE-2 required that the columns be fixed to footings with 2 x M12 anchors.  They were installed and placed on top of the slab and should have been placed on top of the footings (A 525).  It is however noted below that the opinion of Mr Airey is that no remedial work is required and we accept that opinion;
5. e)the 250UB25 cranked beam was to be attached to the adjacent brick pier and was not attached (A 525);
6. f)the SC1 Columns (50 X 50 X 4.0 SHS) were not installed (A 524); and
7. g)the floor was saw cut (at locations not required or designed by Mr Pearce (A 524)).  We note however that in the opinion of Mr Airey (A 929) that the saw cut close to the footplates of the car hoist is not dangerous.  Should the applicants want to enhance capacity, the recommended way is to inject superfine cement, but this is not mandated by Mr Airey or by us.

4)           The respondent made self-initiated and unapproved alterations to the approved plans, regarding the steel structure and the construction.  The respondent did not discuss those variations with Mr Pearce as a competent builder would do and the respondent did not document the variations as a competent builder would do.  The respondent is liable for the following design deficiencies that he ought to have recognised and remedied:

1. a)the north wall lacks stability;
2. b)the lack of fire rating of the north wall;
3. c)the strengthening of the north and east walls to act as retaining walls; and
4. d)the waterproofing of the north and south walls.

5)           The following items are identified in greater detail below as poor workmanship within the context of s 5 of the BSCRA Act for which the respondent is liable:

1. a)omission on 10 diameter rods to brick piers as required by the note on the engineer’s drawings;
2. b)brick piers not tied to roof structure as required by the note on the engineer’s drawings;
3. c)north wall not waterproofed for retained height;
4. d)east wall not waterproofed for retained height;
5. e)window frame lacks cill tray
6. f)cavity to front wall left open at northern end;
7. f)East­west beam installed as 250UB25 whereas 250UB31 was designed; and
8. h)inadequate drainage within the garage allowing water to pond.

The specific complaints items for which the respondent is liable, are dealt with below.

Findings in regard to the specific complaint items

85. In the following part we deal with the individual complaint items.  For the sake of simplicity the reasons will name the complaint item, make known our decision about the merit of complaint item and then provide reasons for our decision.

Complaint item 12

86. We find that complaint item 12 complies with s 5 of the BSCRA Act. The respondent says that he had replaced chipped bricks and that the complaint about the unevenness of the wall had not been lodged at the time of complaint.

• We are satisfied that the unevenness of the wall forms part of the broader complaint regarding the unsuitability of the wall; that it is not a new or unrelated complaint; and that the wall reflects poor workmanship.  We reject the proposition that the unevenness of the wall is only visible at extreme angles of lighting (ts 305, 3 August 2021).

88. The photo at A 432 clearly shows the unevenness of the wall in daylight.  We are surprised that Mr Machell as an expert regards the build as satisfactory.  It is obvious to even the most casual of observers that the bricks are not level as is expected of an external wall.  The wall must be remedied to present a smooth and professional surface.
89. Complaint item 12 is successful.

Complaint item 14

90. We find that the complaint item 14 complies with s 5 of the BSCRA Act. Although a garage may not be expected to be waterproofed to the same standard as a residential dwelling since it has a single skin wall, having water penetrate around a window and running down the inside of the wall and leaving stain marks is evidence of poor workmanship.
91. We do not accept the opinion of Mr Machell that this falls within expected tolerance.  It is the responsibility of the respondent to properly seal the window to prevent the penetration of water.  The water penetration at the window must be remedied.
92. Complaint 14 is successful.

Complaint item 21

• We find that the complaint item 21 complies in part with s 5 of the BSCRA Act. The complaint can be divided into two parts. The first part is the sloping of the floor in the direction of the external garage door. We accept the evidence of Mr Saunders (ts 128, 3 August 2021) that the applicants requested the slope to prevent the build-up of water inside the garage and that the applicants were present when the concrete was poured. The logic of the decision is obvious namely, to allow water that may enter through the garage door to flow outside. This was confirmed by the respondent (ts 88, 11 September 2021). The floor may not be level as per the plans, but it reflects the wishes of the applicants that a slight slope be made to drain water away. This part of the complaint is dismissed.

94. The second part of complaint item 21 relates to the ponding of water inside the garage next to the wall.  The pooling of the water inside the garage is evidence of poor workmanship and must be remedied.  It is not inconceivable that some surface water may remain on the floor, but the cause of the ponding of water must be remedied.

• Complaint 21 is successful in part.

Complaint item 22

96. Complaint item 22 is dismissed. The applicants were unable to demonstrate why the complaint is a breach of s 5 of the BSCRA Act. The applicants were confusing in the rationale for the complaint. On the one hand they were concerned at the base plate being covered by concrete, whilst on the other hand they were concerned about the base plate not being properly fixed to the concrete.
97. The applicants did not present any expert witness or building standard to explain to us why complaint item 22 is meritorious.  The applicants said in oral evidence that they could not elaborate on the complaint ‘because we don’t understand it ourselves’ (ts 47, 29 September 2021).  In neither of the concerns about the column base could the applicants establish a reasonable basis for the complaint.  We accept the opinion of Mr Machell that the standard as built is adequate (A 864 to A 865).  In his report Mr Pearce identifies the base plates as being not fixed to the footings.  He says it is an expectation of this office.  He does not say it is a defect, but rather that it is not as expected.  He did not offer any clarification or elaboration during oral evidence of the comment.  Mr Airey, in turn, was silent on this being a possible defect and Mr Michell says it is not a defect and there is no evidence of faulty or unsatisfactory work.  Our finding is that this is not a meritorious complaint.
98. The cracks that have appeared are likely expansion cracks and do not constitute a basis for a complaint pursuant to s 5 of the BSCRA Act.
99. Complaint item 22 is dismissed.

Complaint item 25

100. Complaint item 25 is dismissed.  We accept that the floor at the car hoist is not level, but the applicants have failed to satisfy us that the floor in general or the floor at the car hoist is not complaint with the oral variation they made while the concrete was being poured.
101. The applicants did not provide any expert report or analysis to support complaint item 25. They did refer to measurements they took as well as to photos and a video of a vehicle rolling forward slightly (ts 275, 3 August 2021). These show that in places the floor is not perfectly level. However, that in itself does not mean the work falls within s 5 of the BSCRA Act. The applicants also relied on the installation guide for the lift as set out in Exhibit H. However, in their reliance on the installation guide, the applicants in effect eroded the merit of their complaint in seven fundamental respects, namely:
102. a)the installation guide makes mention that if a floor is of ‘questionable slope’ remedial steps may be required before the car hoist can be installed.  The guide does not define what is meant by ‘questionable’.  The applicants did not call any witness from the supplier of the car hoist to explain what ‘questionable’ meant or to give evidence that the floor of the garage was ‘questionable’;
103. b)the installation guide recommends that if the floor is ‘questionable’, a survey should be conducted or a new slab poured.  Neither happened in this case.  The applicants arranged independently from the respondent for the car hoist to be installed.  Although the installer, Mr Singleton, who was not called to give evidence, according to the applicants, did some remedial work by shimming or packing the floor for one of the legs of the car hoist to be erected (ts 70, 29 September 2021), he did not object to the slab.  The installer did not make a report about the inadequacy of the slab and he did not refuse to install the car hoist (ts 59, 29 September 2021).  The applicants said in evidence that the installer was an expert in car hoist installation; that he had been recommended by the supplier of the car hoist; and that he knew what he did (ts 65, 29 September 2021).  If the floor was inadequate for purposes of the car hoist, it is reasonable to expect that the installer would have raised concerns.  He did not.  He went ahead and installed the car hoist and later confirmed by email after the hearing had commenced that the installation had complied with all requirements (E J);
104. c)the applicants failed to satisfy us that they had given specifications to the respondent to the effect that the floor where the car hoist was to be located should be absolutely level.  The applicants were present when the concrete was poured and there is no indication that they insisted for that part of the concrete to be absolutely level.  In fact the applicants requested a slight slope to enable them to wash the floor and for water to drain to the back (ts 93, 11 November 2021);
105. d)Mr Airey and Mr Machel noted that the floor was in essence for industrial purposes and hence the levelness ought not to be compared with that of a residence (ts 277, 3 August 21).  Greater tolerance for some unevenness would be allowed for water to be used to clean the floor of a garage that is used as a working space.  It is noted that the design of the floor does not show any falls (ts 278, 3 August 2021), but then we also find that when the floor was poured the applicants agreed on site that some fall should be allowed to drain water.  This is consistent with the opinion of Mr Machell, namely that a fall of this nature is unlikely to be accidental but it more likely to be as a result of an oral variation (ts 283, 3 August 2021);
106. e)it would seem from the installation guide that, where necessary, the legs of the car hoist are to be packed, or shimmed, so that they are at the same level, as well as each being plumb.  This explains why according to the applicants the installer of the car hoist did some packing under the one leg of the car hoist.  If there were other concerns about the suitability of the floor, the installer should have packed or shimmed the floor so that the arm, when swung, did not bind or scrape on the floor; and
107. f)Mr Airey, whose opinion we accept, concluded that the floor does not pose any risk for the installation of the car hoist; that the thickness of the floor is more than adequate to carry the weight of the car hoist; and that the slab meets the standards expected for the intended purpose to carry a 4 ton car hoist.  We are satisfied that Mr Airey had clarified his opinion adequately to explain why he said in his report (A 929) that the floor was not suitable for the car hoist.  He explained in oral evidence that:
108. i)the floor is suitable for the car hoist; and
109. ii)the crack that has appeared next to the seam can be remedied, but the presence of the crack does not render the floor unsuitable for the installation or operation of the car hoist.

We also note in Mr Pearce’s report that he does not take issue with the installation of the car hoist regardless of him not having designed the floor for the purposes of a car hoist.  One would expect that Mr Pearce, who had the builder’s note inserted on the plan, would strenuously object to a car hoist being installed without the matter being referred to him or to the plans he drew being amended.  We find that the complaint item 25 is not made out and that it must therefore be dismissed.

Segment #4

136. Complaint item 64 is dismissed.

Complaint item 69

137. Complaint item 69 is dismissed.  We accept that the purlin is bent, but the question is whether this falls within the liability of the respondent? The expert evidence is that the bent purlin is a result of faulty design for which Mr Pearce, and not the respondent, is liable.  This finding is consistent with the response of the respondent to complaint item 69.
138. We accept the evidence of Mr Airey (A 912) that the design supplied by Mr Pierce was not suitable; that the purlin bent as a result of the faulty design; and that a competent builder would not have been able to identify the faulty design.  The respondent therefore did not err by building in accordance with the Mr Pearce’s plans.  Complaint item 69 must be directed at Mr Pearce.  We note that from the outset of this proceeding the applicants were cautioned that liability of some of their complaint items may have to be directed at Complete Approvals or Mr Pearce and not at the respondent.  We consistently encouraged a mediated outcome since in the opinion of Mr Airey the design shortcomings can be rectified, but in order for the remedial works to be done in accordance with amended plans there would have to be cooperation between the applicants, the respondent, Mr Pearce and Complete Approvals (for example see ts 7, 29 September 2021).
139. Mr Airey is of the opinion, and this is supported by Mr Machel and accepted by us, that the shortcoming in the design can be addressed by way of remedial works as proposed by Mr Airey.  Any remedial works must however be preceded by approved variations to the plans.  We do not specify in these reasons the remedial works to be undertaken since the merit of complaint item 69 has been dismissed.  The applicants do however have the benefit of the recommendations of Mr Airey (A 912 to A 927) about the recommended remedial works.
140. Complaint 69 is dismissed.

Complaint item 70

141. Complaint 70 is dismissed.  The applicants say that the building works done by the respondent, including the use of a jackhammer to remove bricks from the existing house, caused cracking in other parts of the house (ts 155, 29 September 2021).
142. The applicants say in their closing submissions that the cracking has caused serious structural issues to the house.  During the site view the applicants drew our attention to external cracks (A 464, A 465 and A 692) as well as internal cracks (B 144 and B 145).  The respondent says several cracks were visible before he commenced works (A 760 and A 761).
143. We are not satisfied that the applicants have established that the cracking is as a result of the building works undertaken by the respondent.  The applicants are not experts in this field and they did not call an expert who could establish that on the balance of probabilities the cracks were caused by the respondent.  We find so for the following reasons:
144. a)the house is many years old and the applicants have not established that the cracking had not been in place prior to the commencement of the building works by the respondent;
145. b)the applicants had not undertaken a pre-work dilapidation report.  We agree with Mr Airey (ts 224, 3 August 2021) that it ‘would have been very wise’ to have had such a report done prior to construction;
146. c)we accept the opinion of Mr Airey (ts 223, 3 August 2021) that the ‘trigger’ as he calls it for the cracks was not necessarily the building works undertaken by the respondent.  He says there could be stress levels in the walls due to other events and in this case he cannot conclusively say it was due to the building works of the respondent;
147. d)the possibility that the clay soil on which the house is built may have contributed to the cracking cannot, as is explained by Mr Airey, be discounted (A 929);
148. e)there is not plausible evidence of any expert to support the proposition by the applicants that serious structural issues have arisen from the removal of bricks with the jackhammer;
149. f)if the building works undertaken by the respondent were to blame, cracking if any would be at the wall immediately associated with the building works and localised.  This is not the case here.  Some of the cracks are in another room (the laundry) and some are to the outside wall removed from the location of the building works; and
150. g)we accept the evidence of Mr Airey that the vertical crack (E) appears to be movement of the entire wall rather than cracking as a result of use of a jackhammer (ts 223, 3 August 2021).  Since it is not clear whether the crack was present prior to the jackhammering, the proposition by the applicants that the crack appeared the day after the jackhammering is not accepted.  There was some speculation during the hearing (ts 252­259, 3 August 2021) about the possible causes of the crack, but ultimately there was not adequate evidence to conclude that it arose as a result of workmanship on the part of the respondent.
151. Ultimately it is highly speculative to link the cracks to the building works of the respondent, particularly since it is not clear if the cracks were there prior to the building works.  We note the applicants say the cracks were not there, but there is no pre-construction report to affirm the evidence of the applicants.
152. Complaint item 70 is dismissed.

Complaint items 71, 72, 75, 76, 77 and 78

146. These complaint items are interrelated since they concern the northern wall, the eastern and southern walls, the western wall and the roof of the garage.
147. We find that the complaints comply in part with s 5 of the BSCRA Act. The merit of the parts of the complaints as described by the applicants is accepted based on the evidence of Mr Airey and Mr Machell. The appropriateness of the remedial works recommended by Mr Airey will be the subject of the next stage of the proceeding.
148. In essence, the north wall was not suitably designed and for this Mr Pearce and Complete Approvals are likely liable, but the respondent should have known about the deficiencies and therefore the respondent is also liable for the workmanship complaints arising from the building of the wall.  Liability for the inadequate waterproofing of the retaining wall is shared since Mr Pearce should have visited the site and should have designed the wall consistently with a wall that retains soil; whilst the respondent should have known, as a competent builder would, that a wall that retains soil as this wall does, requires waterproofing.  The remedial works recommended by Mr Airey and Mr Machell should be adequate albeit that the parties may want to discuss with Mr Pearce any issues that may have relevance to him and Complete Approvals.
149. The applicants say that the north wall is unstable; that it moves when pressure is placed against it; and that it constitutes a safety and fire risk. This is not disputed by the respondent.  We agree with the concerns expressed by the applicants.  The respondent also agrees with the merit of the complaint albeit that there is a difference of opinion when it comes to the required remedial works and the liability to undertake the work.
150. The applicants say the respondent must remedy the wall (by demolition) since he built it.  The respondent says the wall was built as designed by Mr Pearce and that the complaint should be dismissed.  We have already found that Mr Pearce was overall responsible for the design of the garage and he had made some errors in the design.  In this regard we accept what Mr Airey says that the single skin of the northern wall was a design issue (ts 179, 3 August 2021).
151. We find however that although the design by Mr Pearce was inadequate for the location of the wall (see below), that the level of knowledge of a competent builder would be such that the respondent should have realised that the single skin wall did not comply with fire ratings and he should have consequently have discussed his concerns with the applicants and Mr Pearce.  Although we accept that a builder generally would adhere to a design of an engineer, there may be engineering specifications where it ought to be within the knowledge of a competent builder that the engineer may have erred in the design.  In this case the single skin wall falls within this category.  We say so for the following reasons:
152. a)We accept the evidence of Mr Airey that the single skin north wall in this location and given the height and length of the wall is insufficient to achieve the required fire rating of 60/60/60 on the northern boundary wall (A 913).  We find that the retaining of the wall and particularly the failure to comply with fire rating were inadequate and that a competent builder would have known it and discussed it with the engineer (ts 181, 3 August 2021).
153. b)We accept the opinion of Mr Machel that where a structural engineer has certified design drawings and notes to be structurally sufficient, that a reasonable and competent builder can rely on those, ‘subject to any issue arising during the course of construction that may lead the builder to believe that the construction was not sufficient’ (A 941).  We agree with Mr Machell that the respondent should have referred the ‘wobbly wall’ back to Mr Pearce (ts 180, 3 August 2021).  We accept as a general proposition the opinion of Mr Airey and Mr Machell that although a builder ‘relies heavily on their engineers’ (ts 179, 3 August 2021) a competent registered builder would have referred the design back to the engineer due to its instability and failure to adhere to the required fire rating (ts 181, 3 August 2021).
154. c)We accept the opinion of Mr Machell that a competent builder would have noticed that the vertical stability of the north wall is not proper.  Additionally, a competent builder would have known that the wall was not adequate for purposes of the required fire rating in its location.  The respondent should have noticed the instability of the north wall and should have discussed it with Mr Pearce for the plans to be varied and the necessary supports to be added.  We note in this regard the observation of Mr Pearce that the ‘wall could be visibly deflected by simply pushing on the wall’ (A 525).   This deficiency should have been obvious to the respondent and should have caused him to discuss it with Mr Pearce.  It is surprising that Mr Pearce, who did the design, did not during the hearing acknowledge his potential contribution to the deficiency.
155. d)Mr Pearce and the respondent share liability regarding the wall and the tie down of the wall and steel frame. Mr Pearce is liable for the design in general and the respondent is liable for building the wall in the face of obvious deficiencies; for not complying with the design and for not utilising his own knowledge to identify shortcomings in the design.  In this regard we accept the expert opinions of Mr Airey (A 913 and A 914) and Mr Machell (A 940 and A 941) about the design shortcomings, as well as the caution that should have been displayed by the respondent when the wall was constructed.  It ought to have been obvious to the respondent that there were shortcomings in the design and he should have discussed his concerns with Mr Pearce.
156. e)Although these reasons do not relate to remedial works, we note that the respondent has accepted the merit of the remedial works recommended by Mr Airey (A 913 to A 927) and Mr Machel (A 941).
157. f)We do not accept the concern expressed by the applicants that the garage floor is not suitable to add another skin to the north wall.  We accept the opinion of Mr Airey that the floor is suitable and capable for the additional wall as recommended by Mr Airey, to be constructed.  The concerns expressed by the applicants are not accepted since they did not provide adequate supportive material or expert opinion to sustain their complaint.
158. g)In regard to the waterproofing complaint the National Construction Code provides in F2.2.2 Weatherproofing and Dampness that a building is to be constructed to provide resistance to moisture from the outside and moisture rising from the ground.  Limitation:  F2.2.2 does not apply to a Class 10 building except where its construction contributes to the weatherproofing of the Class 1 building.  Since this garage is a Class 10 building, there is no prescribed Damp and Weatherproofing provisions.  It is of course always open to an owner to decide that he wants a Damp and Weatherproof Garage and to have such designed.  This was not done in this case.  The lack of retaining walls however means that there is little or no restraint on water from the soil penetrating the single leaf northern wall.  This is a deficiency that ought to have been identified by Mr Pearce since the design should take into account the slope of the land.  Since Mr Pearce did not visit the site he was unaware of the slope and hence the design was not adequate for the location.  The respondent cannot be held liable for the design deficiency.  On the other hand, however, a competent builder would have known that a single skin wall that retains clay soil is likely to experience water penetration issues.  The respondent should have discussed concerns with Mr Pearce for a variation to be effected.  The respondent therefore shares liability for building the wall.  The remedy by Mr. Airey proposes construction of an additional leaf of brickwork, as the internal leaf, for fire resistance purposes.  Building this additional leaf will give rise to the ability to construct a retaining wall, for the lower section of the wall, by filling the cavity with concrete.  Mr Airey recommends in greater detail the remedial works to be done.
159. We find that the complaint items 71, 72, 75, 76, 77 and 78 comply in part with s 5 of the BSCRA Act.

Complaint item 73

153. Complaint item 73 is dismissed.  The applicants say there is inadequate support for the wall since the footings are set back behind the front skin of the masonry (A 527).  The applicants also say that a crack that has appeared is caused by the footings not being adequate to carry the weight of the wall (ts 160 and 165, 29 September 2021).
154. The respondent says that he contracted the concrete to be poured as per the design to be 450 mm (A 803) and Mr Saunders says that he poured as per the design (ts 140, 3 August 2021).  Mr Saunders says that he did the footings and thereafter the single skin wall was built (ts 129 and 139, 3 August 2021).  When the applicants challenged Mr Saunders about the thickness of the footing he asked them what proof can they offer that he did not comply with the design (ts 139, 3 August 2021).
155. The applicants acknowledged that they had not undertaken any testing as far as the footings were concerned other than a visual inspection of the one exposed area.  The applicants say the design was for the floor to be 450 millimetres but they are concerned that it was 300 millimetres or less (ts 165, 29 September 2021).  Mr Pearce admitted that he had not inspected or measured the footings other than the one exposed area (ts 213, 3 August 2021).  The respondent says (A 761) that he inspected the construction of the skin and that he permitted a part of the masonry to exceed the western edge of the footing on the northern side of the western elevation garage door opening (ts 164, 11 November 2021).  The respondent says that other than this protrusion, none of the other walls or part thereof exceeds the external edge of their footings (A 761).  The applicants further say that a crack has now appeared which according to them is due to the floor not being adequate to carry the load of the wall (ts 173, 29 September 2021).
156. The complaint is dismissed for the following reasons:
157. a)The applicants were not able to provide any evidence, expert or otherwise, that the extent of the protrusion of the wall is greater than has been conceded by the respondent.
158. b)Mr Airey (A931) does not find any design or workmanship issue regarding the footings.  Mr Airey accepts that the footings and floor are adequate to carry the weight of the wall, including if a double skin is added.  We accept the evidence and opinion of Mr Airey.
159. c)The applicants sought an order for all walls to be inspected.  This is misconceived since the onus rests on them as complainants to inspect the walls and footings should they be concerned with the construction.
160. d)The applicants did not meet the burden to prove that the crack in the corner of the walls is a result of the building works for which the respondent was responsible.  In the final analysis the applicants relied on hearsay, suspicion and general accusation rather than reliable and credible evidence.
161. Complaint item 73 is dismissed.

Complaint item 74

158. Complaint item 74 is dismissed for the reasons already set out in response to complaint item 64.

Complaint item 79

159. Complaint item 79 is dismissed.  Complaint item 79 is dismissed on the same grounds as complaint item 71.  In regards to the base plates the applicants in oral evidence stated ‘we’re just concerned it’s going to fall down’ (ts 188, 29 September 2021) but could not provide any other credible evidence in support of complaint item 79.  They made passing reference to the report by Mr Ross Loughton, but he was not called to give evidence and no reliance is placed on his written report.
160. Complaint item 79 is dismissed.

Complaint items 80 and 81

161. We find that complaint items 80 and 81 comply with s 5 of the BSCRA Act. The applicants say, and this is supported by the evidence of Mr Airey, that the design of the steel frame is in several respects not suitable for the location. The complexity of this matter is highlighted by these complaints. The liability is shared by Mr Pearce who did the design and the respondent who on the one hand did not comply with the design and on the other hand effected variations without discussing those with Mr Pearce; see for example ts 177-178, 3 August 2021 how Mr Airey describes the inadequacies of the design and construct. The respondent, in having admitted that he had undertaken unapproved works, said the following in oral evidence:

So the changes that I made was not engineered by anyone.  I put the legs on the structure instead of the tie-down rods – the galvanised rods that go into the timber – because there is no timber in it.  There was (sic) purlins that were put in there.  And the legs I put on because it was a safety – it was a safety issue.

(ts 111, 2 August 2021)  [should be 3 August?]

162. The respondent then goes on to explain that he should have liaised with Mr Pearce and with the applicants.  However, he did not do so.  He simply made the variations.  He explains his actions as follows:

I know that I should have sent emails and pestered and pestered and pestered.  I didn’t do enough.  And then it resulted in me putting the legs on, so that the wall didn’t fall over and I could get the roof on.

(ts 112, 2 August 2021)

163. The respondent can of course only be held liable to the extent of its own actions, whilst the applicants would have to pursue Mr Pearce in another jurisdiction.  The applicants did acknowledge during the hearing that they may have to commence separate proceedings against Mr Pearce.
164. The reasons for our findings are as follows:
165. a)We accept the opinion of Mr Airey that the design of the frame was not appropriate for its location (A 912 and A 913).
166. b)We accept the opinion of Mr Airey that even where the plans provided for the frame to be tied to the walls, the respondent had failed to adequately comply with the plans; see for example the steel roof beam as installed as 250 UB 25, when it should have been a 250 UB 31 (A 525).  The respondent admits that he failed in material respects to build the roof in accordance with the plans and that he failed to obtain approval for the variations (A 532, A 533 and A 534).  The bent purlin is however a result of faulty design for which the respondent cannot be held liable.
167. c)It is apparent that the respondent had made unapproved variations to the approved plans or failed to comply with the plans.
168. The complaint items meet the requirements of s 5 of the BSCRA Act but the parties are encouraged to discuss with Mr Pearce, prior to the next phase, the remediation works recommended by Mr Airey; the possible sharing of costs to amend the plan; the securing of approval by the relevant local authority for the amended plan; and bringing the structure to compliance.
169. Complaint items 80 and 81 are successful in part.

Complaint item 82

167. Complaint item 82 is dismissed.  The applicants say that the drainage system is inadequate; that it was installed by the respondent; that it overflows into the garage; that the respondent disconnected the previous drainage; and that the respondent assisted them to install a grid at the back roller door of the garage and to install the soakwell and associated draining.
168. The respondent denies liability on the basis that the drainage work did not form part of the design of scope of works; he only provided manual assistance to install the soakwell; and he installed the grid at the back door of the garage and connected the grid to the drainage that had been installed by the applicants.  The respondent says his farther, Mr Mark Beevor, installed the grate at the back sliding door of the garage to assist the applicants albeit that it did not form part of the plans (ts 23, 11 November 2021).  The respondent says that some of his workmen assisted the applicants to lower the soakwell into the ground, but he had no contractual or any other responsibility to connect it to the drainage system or to ensure that the system operated to the required standard (ts 35 and 47, 11 November 2021).  The respondent also says the flooding is exacerbated by the run-off from the roof of the house that flows into the same drainage system.  The respondent says he was only contracted to build the retaining wall and to do the paving on top of the drainage (B 102 to 103 and B 108).
169. Complaint item 82 is dismissed for the following reasons:
170. a)The applicants could not stablish to our satisfaction that the installation of the drainage system was the responsibility of the respondent.
171. b)The approved plans do not show, other than for the soakwell, any drainage system that had been approved for this part of the house, whilst the drainage notes that accompanied the building approval did not specify any works to be conducted and to the extent it related to the roof of the garage we are satisfied that the respondent met those conditions.
172. c)The only drainage that had been provide for by the approved plans related to disposal of water from the roof of the garage and the respondent adhered to those parts of the plans.
173. d)The applicant could not provide evidence of them having had a separate agreement with the respondent to install the drainage system the subject of complaint item 82 or that they paid him for the work done.
174. e)The evidence of the respondent that his father installed the grid at the back of the garage sliding door is, in light of all the evidence before us, credible and does not suggest that the respondent was responsible to install the entire drainage system.
175. f)The applicants have not been able to satisfy us that the photographs of the respondent undertaking excavation is adequate proof of him having damaged or destroyed or disconnected an existing, functioning drainage system that can be related to complaint item 82 (B 176, B 186 and B 188).
176. g)We accept that the building work of the respondent was limited to the building of the retaining wall and the laying of pavement bricks.
177. Complaint item 82 is dismissed.

Complaints items 83 and 86

171. Complaint items 83 and 86 are dismissed.  The applicants say the roof sheeting and flashing are dented, not properly sealed, not well secured and not aesthetic.
172. The respondent denies the complaints and says there is inadequate evidence to support the complaints.
173. We agree with the respondent that the applicants have failed to meet the threshold to establish valid complaints pursuant to s 5 of the BSCRA Act. We find so for the following reasons:
174. a)Although the applicants relied on photographs to highlight the merit of the complaints, the applicants failed to establish any objective standard that supports the complaints. The applicants said the appearance of the dents were not aesthetic but this in itself does not constitute a valid complaint under s 5 of the BSCRA Act. We accept that parts of the sheeting may be dented, but that in itself does not according to the evidence before us constitute a valid complaint under s 5 of the BSCRA Act.
175. b)We reject as speculative the opinion expressed by the applicants that the leakages into the garage are ‘probably’ linked to the damage that had been caused to the roof sheeting (ts 55, 11 November 2021).  There is no evidence other than the statement by the applicants that water penetration can be associated with complaint items 83 and 86.
176. c)We accept the opinion of Mr Machell (A 874) that the applicants did not establish that the denting in the roof sheeting constituted a valid workmanship complaint;
177. d)We accept the opinion of Mr Machell (A 875) that the apron flashings the subject of the complaint are adequately installed and sealed.
178. Complaint items 83 and 86 are dismissed.

Complaint item 88

175. Complaint item 88 is dismissed.  The applicants contend that the screws along the roof are not properly aligned and that they are ‘all over the place’ and non-aesthetic.  The respondent denies liability.
176. We accept the opinion of Mr Machell that the crews were adequately installed, fulfilling their purpose and that they do not represent a valid complaint pursuant to s 5 of the BSCRA Act. We also note that the applicants did not provide any expert report or any other standard that indicates that the screws are not of adequate standard.
177. Complaint item 88 is without merit and the applicants made no progress to prove the complaint other than to raise the issue. The statement by the applicants that they are not ‘happy with the look of it’ is inadequate for purposes of proving the merit of a complaint pursuant to s 5 of the BSCRA Act.
178. Complaint item 88 is dismissed.

Complaint 89

179. Complaint item 89 is held in abeyance since it deals with costs.

Complaint item 91

180. Complaint item 91 is successful in part since it complies with s 5 of the BSCRA Act. The applicants contend that the cracks in the driveway are likely to widen and that the concrete must be removed since inadequate reinforcing had been done. The applicants also contend that the concrete is of different colour (A 868).
181. The respondent denies the complaint and says the cracks that have appeared are minor and are the result of shrinkage and within tolerance. We note there was some confusion whether complaint item 91 had been withdrawn.  The applicants indicated that the complaint was being withdrawn (ts 362, 3 August 2021), but then later sought it to be reinstated (ts 18, 29 November 2021).  For the sake of completeness and to bring all issues to a close we decided to deal with the complaint item 91 on merit.
182. We dismiss the part of complaint item 91 that relies on the cracking of the concrete, but we uphold the complaint that the different colour of the concrete is unprofessional and unsatisfactory:
183. a)The applicants have not established that the cracks exceed what would be regarded as reasonable tolerances for the cracking of concrete.
184. b)The Guide to Standards and Tolerancesenvisages minor cracking in driveways of up to 1 millimetre.
185. c)The evidence before us is not adequate to conclude that the cracks exceed 1 millimetre or that they have widened.
186. d)To the extent that the applicants contend that the reinforcing of the concrete was not adequate, we dismiss the complaint since there was inadequate evidence to support the contention of the applicants.
187. e)We accept the opinion of Mr Machell that the cracking that had been the subject of the complaint and pointed out during the site inspection were within tolerance. However, the one part of the concrete slab as seen on A 868 that appears brown compared to the other parts of the slab that appear grey must be removed and brought to closer match with the remainder of the interior of the garage.
188. Complaint item 91 is successful in part.

The path forward

184. We have now with these orders and reasons for decision clarified the questions of liability and workmanship that arose pursuant to tranches 1 and 2.  The parties are now in a better position to make submissions and give evidence about remedial works and the costs thereof pursuant to tranche 3.
185. As we have pointed out, liability for some of the larger cost items is in some respects shared between the respondent and Complete Approvals and Mr Pearce; and in other respects the entire liability rests, in our view, with Complete Approvals and Mr Pearce.  It will not be a simple task to untangle liability and to apportion costs to the respondent.  The applicants would have to pursue Complete Approvals and/or Mr Pearce for the balance of liability costs.
186. We strongly hold the view that it is in the best interests of the applicants, the respondent and Complete Approvals if a mediation could occur whereby the implications of our decision can be considered.
187. We note and accept the expert opinions expressed by Mr Airey and Mr Machell that the deficiencies of the garage as constructed are capable of being remedied.  We also note that Mr Beever has said that he is willing to assist the applicants to obtain the necessary approvals from the local authority for amended plans (ts 185, 11 November 2021). We have found that there is no need to pull down the entire garage as is sought by the applicants (ts 181, 11 November 2021).  However, for amended plans to be approved and for remedial works to be undertaken, cooperation would have to occur between all concerned.  If such cooperation does not take place, the dispute has a long way to run, including potential litigation in another jurisdiction.
188. We cannot of course order Complete Approvals or Mr Pearce to attend a mediation of this Tribunal and we also cannot make orders that bind Complete Approvals or Mr Pearce.  However, we can offer the parties a mediated facility and as part of the process they may perhaps, with the assistance of legal counsel, be able to agree on a comprehensive settlement – perhaps by way of deed if it also involves Complete Approvals and/or Mr Pearce.  In the interests of justice, costs and a speedy resolution we adopt this course.  If it fails, then we will in due course commence the third tranche in regard to the costs of remedial works attributable to the respondent.
189. The matter will therefore be set down for mediation; the parties will be encouraged to invite Complete Approvals and/or Mr Pearce to attend the mediation; and if the mediation is not successful, the final question regarding remedial work and cost will be dealt with by way of a hearing.

Orders

1. Leave is granted for the following complaint items to be withdrawn by the applicants:  4, 5, 7, 8, 9, 10, 11, 13, 15, 18, 19, 26, 33, 42, 43, 45 and 47.  These complaint items are withdrawn.
2. Liability for the following complaint items are accepted by the respondent:  1, 2, 3, 6, 16, 17, 20, 23, 24, 27, 28, 29, 30, 32, 34, 35, 36, 37, 38, 39, 44, 46, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 63, 65, 66, 67, 68, 75, 84, 85, 87 and 90.
3. The following complaint items are dismissed by the Tribunal:  22, 25, 31, 40, 59, 60, 61, 64, 69, 70, 73, 74, 79, 82, 83, 86 and 88.
4. The following complaint items are upheld by the Tribunal:  12, 14 and 27.
5. The following complaint items are upheld in part by the Tribunal:  21, 41, 62, 71, 72, 76, 77, 78, 80, 81 and 91.
6. Complaint item 89 is held in abeyance since it deals with costs.
7. The matter is set down for a mediation to commence at 10 am on 28 February 2022 for the duration of one day.
8. The parties are encouraged to liaise with one another to invite Complete Approvals and/or Mr Rowland Pearce to attend the mediation.
9. If the matter does not settle in mediation, it shall return to a directions hearing to take place at 10 am on 7 March 2022 for a duration of two hours during which programming orders shall be made for the question of scope of remedial works and/or costs for remedial works to be determined.  The parties may seek leave for the directions hearing to be adjourned to a later date if they require additional time to secure an agreed outcome.

 

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

 

DR B DEVILLIERS, MEMBER

 

25 JANUARY 2022