J-CORP. PTY LTD and MCCUTCHEON [2026] WASAT 48

[2026] WASAT 48 Page 1 JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA) CITATION : J-CORP. PTY LTD and MCCUTCHEON [2026] WASAT 48 MEMBER : JUDGE F VERNON, DEPUTY PRESIDENT MS N EAGLING, MEMBER MR S BURNS, SESSIONAL MEMBER HEARD : 27 NOVEMBER 2025, 4 DECEMBER 2025, 16 AND 17 FEBRUARY 2026 DELIVERED : 7 MAY 2026 FILE NO/S : CC 430 of 2025 BETWEEN : J-CORP. PTY LTD Applicant AND JANICE MCCUTCHEON First Respondent GRAEME MCCARTHY Second Respondent BUILDING COMMISSIONER Third Respondent ATTORNEY GENERAL Intervenor -- 1 of 65 -- [2026] WASAT 48 Page 2 Catchwords: Application to vary or set aside the Building Commissioner's decision to make a building remedy order - Definition of 'regulated building service' - Construction of s 37(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) - Whether the installation of pipes with a latent manufacturing defect constitutes a regulated building service that is faulty or unsatisfactory - Is the value of the remedial work estimated to exceed the prescribed amount - Whether a building remedy order should be made - Consideration of the appropriate variation of the terms of the building remedy order Legislation: Building Act 2011 (WA), s 3 Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(1), s 6(1)(a), s 11(1), s 11(1)(a), s11(1)(b), s11(1)(c), s 11(1)(d), s 12, s 13, s 13(2), s 13(4), s 36(1)(a), s 36(1)(b), s 36(1)(c), s 36(3), s 37, s 37(1), s 37(2), s 37(2)(a), s 37(2)(b), s 37(3), s 38(1), s 41(4)(b)(iii), s 46(1)(c), s 51(2)(b), s 55(1) Building Services (Registration) Act 2011 (WA), s 7 Home Building Contracts Act 1991 (WA), s 3(1) State Administrative Tribunal Act 2004 (WA), s 29(3)(c)(i), s 29(3)(c)(ii), s 29(5)(b), s 32(4), s 46 Trade Practices Act 1974 (Cth), s 82(1) Result: Building remedy order varied Stay of the operation of the building remedy order set aside Category: B Representation: Counsel: Applicant : Mr M Sims SC and Ms K Pedersen First Respondent : In Person Second Respondent : Non-appearance Third Respondent : Non-appearance Intervenor : Mr C Steel and Ms A Miller -- 2 of 65 -- [2026] WASAT 48 Page 3 Solicitors: Applicant : Hotchkin Hanly First Respondent : N/A Second Respondent : N/A Third Respondent : State Solicitor's Office Intervenor : State Solicitor's Office Case(s) referred to in decision(s): Brooks and Gransden Building Company Pty Ltd [No 2] [2021] WASAT 86 Glasson and McLean [2024] WASAT 96 at [22]. Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494 Nelson v Mardesic (1998) 22 SR (WA) 42 Owners of Strata Plan 47111 and Pyramid Construction (WA) Pty Ltd [2018] WASAT 34 Ventura Home Group Pty Ltd and Wright [2026] WASAT 21 Zimowski and Ideal Homes Pty Ltd [2022] WASAT 90 -- 3 of 65 -- [2026] WASAT 48 Page 4 REASONS FOR DECISION OF THE TRIBUNAL: Introduction 1 J-Corp. Pty Ltd (applicant) has applied for review of a building remedy order made on 30 May 2025 under s 37 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (Building Services Act) by a delegate of the Building Commissioner, concerning a house owned by Janice McCutcheon and Graeme McCarthy (respondents),1 being Building Remedy Order O2024-0979 (BRO). 2 The BRO was made in response to the respondents' complaint dated 27 March 2024 under s 5(1) of the Building Services Act (Complaint). The Complaint concerned the applicant's installation of water pipes known as Iplex Pro-fit Typlex-1050 polybutylene pipes (pipes) into the home the applicant was building for the respondents (Home). In particular, the respondents complained that the plumbing work in the Home had been carried out in a manner that was faulty or unsatisfactory because the pipes were inherently defective and had burst. 3 The applicant said, and the respondents accept, for the purpose of these proceedings, that: (a) the pipes have a latent manufacturing defect, of which the applicant was unaware until after the Home was completed; and (b) as a result of the defect the pipes are liable to fail unexpectedly, by cracking or bursting, causing water leaks (burst events).2 4 The applicant submitted that the Building Commissioner did not have power to make the BRO because, in installing the pipes in the Home, the applicant had not carried out a regulated building service that is faulty or unsatisfactory within the meaning of s 37(1) of the Building Services Act. If this primary argument failed, the applicant said that we should set aside the BRO because s 37(2) and s 37(3) of the Building Services Act prohibits the Building Commissioner, and 1 Although the Building Commissioner is the third respondent, the Building Commissioner took no active part in the proceedings. Accordingly, in these reasons, Ms McCutcheon and Mr McCarthy are referred to as 'the respondent' and the third respondent as the Building Commissioner. 2 The intervenor did not make this concession, saying that the intervenor did not know the cause of the burst events. However, the intervenor did not seek to actively contest it, saying that the root cause was immaterial on a proper construction of s 37(1) of the Building Services Act. -- 4 of 65 -- [2026] WASAT 48 Page 5 therefore the Tribunal on review, from making the BRO as the work required to be done under the BRO has a value estimated to exceed the prescribed amount of $100,000. In any event, the applicant said that, if the BRO is not set aside, it must be varied to allow the applicant additional time to complete the work. 5 For the reasons that follow: (a) we have decided that the Building Commissioner, and therefore the Tribunal, has power under s 37(1) of the Building Services Act to make the BRO, subject to our estimating that the value of the work to be done does not exceed the prescribed amount of $100,000; (b) we estimate that the value of the work to be done under the BRO does not exceed $100,000; and (c) we have decided that the BRO should be varied to allow the applicant a further 18 weeks to perform the work, and in accordance with the agreement of the parties referred to below. The Proceedings 6 This matter was heard together with five other matters.3 In these reasons, we will refer to the reasons for decision given in one of those matters, CC 480 of 2025, in Ventura Home Group Pty Ltd and Wright (Wright).4 Factual findings 7 There is no dispute about the following facts, which we find: (a) the applicant is a regulated building service provider within the meaning of the Building Services Act; (b) the applicant entered into a home building contract with the respondents to build the Home on 23 May 2018 (Home Building Contract); (c) the Home Building Contract provided that the applicant would construct a double storey brick dwelling; 3 These being CC 459 of 2025, CC 462 of 2025, CC 480 of 2025, CC 547 of 2025 and CC 653 of 2025. By Order 1 of the orders made on 22 October 2025, the six matters were ordered to be heard and determined together and that evidence in one proceeding is to be evidence in the other proceeding. 4 Ventura Home Group Pty Ltd and Wright [2026] WASAT 21 (Wright). -- 5 of 65 -- [2026] WASAT 48 Page 6 (d) construction of the Home reached practical completion on or about 13 March 2020; (e) during the construction of the Home the applicant used the pipes for the Home's hot and cold potable water system; and (f) the applicant did not design or manufacture the pipes. 8 Further, as has been said, we are to assume, for the purpose of these proceedings, that the pipes have a latent manufacturing defect that results in burst events occurring unexpectedly. 9 It is also not in dispute, and we find, that: (a) the Home suffered a total of nine burst events between 13 October 2021 and 12 October 2024; (b) on 27 March 2024, the respondent lodged the Complaint with the Building Commissioner. In the Complaint, the respondent complained that: (i) the plumbing work in the Home had been carried out in a manner that was faulty or unsatisfactory because the pipes were inherently defective and had burst; (ii) the only way to remedy the fault was for the Home to be re-piped, and the applicant had refused to re-pipe the Home; and (iii) on 30 May 2025, an authorised delegate of the Building Commissioner, made the BRO in the following terms:5 1. Pursuant to s 36(1)(a) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (the Act), the respondent is to remedy the water supply pipework within the home to ensure it is of an acceptable quality and that it is safe, durable and free from defects. 2. To remedy the items referred to in order 1, within 6 months of the date of this order, the respondent is required to - 5 The applicant in these proceedings is referred to as the respondent in the Building Remedy Order, being the respondent to the complaint. -- 6 of 65 -- [2026] WASAT 48 Page 7 a. conduct a full home re-pipe of all Typlex piping; b. make good all surfaces and remedial areas in a proper and proficient manner; and c. remedy all damage directly caused by the plumbing failures to the home and its contents. 3. Within 28 days of this order, the respondent is to supply and install a leak detection unit to the home. 10 The respondents have consented to the variation of the BRO to delete orders 2(c) and 3. Issues 11 The applicant raised six grounds of review. However, we do not need to determine the following grounds: (a) Ground 1A - the applicant concedes that there is no need for us to determine this ground in addition to Ground 2, given the respondent's concession referred to in [3] above; and (b) Grounds 3 and 5 - the applicant has withdrawn these grounds. 12 The remaining three grounds raise five questions for determination, as follows: (a) Ground 1 - (i) Does the estimated value of the work required under the BRO exceed the amount of $100,000 prescribed by s 37(3) of the Building Services Act? In answering this question, we must determine the meaning of s 37(2)(a) of the Building Services Act, which provides that the Building Commissioner cannot make a building remedy order requiring 'work to be done of a value estimated' by the Building Commissioner to exceed the prescribed amount. (ii) If the answer to the question in (a)(i) is 'yes', does s 11(1)(d) of the Building Services Act enable us to refer the Complaint to the Tribunal to be determined under -- 7 of 65 -- [2026] WASAT 48 Page 8 s 38(1) of the Building Services Act, in the Tribunal's original jurisdiction? The applicant and the intervenor, and ultimately, as we understood it, the respondents, accepted that if we estimate the value of the work required under the BRO will exceed the prescribed amount, we do not have power under s 37 of the Building Services Act to make the BRO. It follows from this that we cannot affirm or vary the BRO in the exercise of our review jurisdiction and must set the BRO aside. There was also no dispute that if we find that we have power to refer the Complaint to the Tribunal under s 11(1)(d), to be dealt with under s 38(1), we should exercise that power. (b) Ground 2 - (i) Did the applicant, by installing the pipes in the Home, carry out a regulated building service that is faulty or unsatisfactory within the meaning of s 37(1) of the Building Services Act? There is no dispute that, if the answer to this question is 'no' neither the Building Commissioner, nor the Tribunal on review, has the power to make the BRO and it must be set aside; and (ii) If the answer to the question in (b)(i) is 'yes', is it open to the Tribunal to set aside the BRO in any event, and should we do so? and (c) Ground 4 - Whether, within the meaning of cl. 10.5 of the Western Australian Plumbing Failure Policy (2024) (Policy), the applicant is capable of doing the work required by the BRO? There is no dispute that, if we determine we have power under s 37(1) of the Building Services Act to make the BRO, the 6-month period specified in order 2 of the BRO for the remedial work to be done has already expired. The applicant was not required to comply with the BRO by reason of an order dated 18 September 2025, staying the operation of the BRO until further order of the Tribunal. We consider that we must vary the BRO to extend the time for compliance, rather than make an order where compliance is impossible, given that the order we -- 8 of 65 -- [2026] WASAT 48 Page 9 make will take effect from the date of the BRO.6 Accordingly, the question we must determine is what time should be specified in the BRO for the applicant to complete the work, taking into account the considerations we are required to take into account under cl. 10.5 of the Policy. 13 We will consider Ground 2 first, as it concerns the power to make the BRO at all, followed by Ground 1 and Ground 4. Principles of statutory interpretation 14 The principles of statutory interpretation are not in dispute and apply equally to the construction of s 37(1) and s 37(2)(a) of the Building Services Act. We adopt what was said about those principles in Wright at [13] and [14] as follows: [13] The principles of statutory construction to be applied in determining the meaning of s 37(1) of the Building Services Act are not in dispute. They were recently summarised by the Court of Appeal in Prichard v M 6:8 Legal Pty Ltd as follows: [41] This court has recently reiterated the importance of statutory text to the exercise of statutory construction …. Consistently with that discussion, statutory construction is a process of determining the objective meaning of the legislation by the application of recognised rules of interpretation to the legislative text, understood as a whole and in its context… … [43] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The statutory text is the surest guide to Parliament's intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy. [44] Legislative purpose is to be ascertained from what the legislation says, rather than any assumption about the desired or desirable reach or operation of the relevant provisions. Identifying the legislative purpose is itself an objective exercise of statutory construction, which does not involve a search for what those who promoted or passed the legislation may have had in mind when it 6 State Administrative Tribunal Act 2004 (WA) (SAT Act), s 29(5)(b). -- 9 of 65 -- [2026] WASAT 48 Page 10 was enacted … Nor is it for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose. (references deleted) [14] We may refer to extrinsic materials to ascertain the meaning of a statutory provision. However, these cannot be used to override the clear meaning of the statutory text. (references deleted) Legislation Tribunal's jurisdiction 15 What was said in Wright at [15] to [18] about the Tribunal's jurisdiction applies equally in this matter. We adopt what was said in those paragraphs as follows: [15] Our jurisdiction derives from s 57(1)(a) of the Building Services Act which provides that a person aggrieved by a building remedy order made by the Building Commissioner may apply to the Tribunal for a review of the order. The application falls within the Tribunal's review jurisdiction under s 17(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). [16] The review is by way of a hearing 'de novo'; that is, we are to make the decision afresh. The purpose of the review is to produce the correct and preferable decision at the time we make our decision. We may consider material that was not available to the Building Commissioner, whether or not that material was available at the time the BRO was made. [17] We have the same jurisdiction, functions and discretions as the Building Commissioner had in deciding to make the BRO. We may affirm, vary or set aside the Building Commissioner's decision to make the BRO. If we set the decision aside, we may substitute our own decision or send the matter back to the Building Commissioner to be reconsidered in accordance with our directions or recommendations, as we consider appropriate.7 [18] The effect of our having the same jurisdiction as the Building Commissioner is that, before we may make any order to affirm or vary the BRO, under s 37(2)(a) of the Building Services Act we must be satisfied that the estimated value of the work will not exceed the prescribed amount of $100,000, unless the applicant consents to the order. That is the case even though, 7 SAT Act, s 29(3)(c)(i) and (ii). -- 10 of 65 -- [2026] WASAT 48 Page 11 under s 38(1) of the Building Services Act, the Tribunal has original jurisdiction to make a building remedy order with an estimated value in excess of $100,000 where the Building Commissioner has referred a complaint to the Tribunal. (references deleted) Building Services Act 16 Under s 5(1) of the Building Services Act, a person may make a building services complaint to the Building Commissioner about a regulated building service not being carried out in a proper and proficient manner or being faulty or unsatisfactory. 17 Under s 6(1)(a) of the Building Services Act, a complaint under s 5(1) relating to the installation or use of a Typlex pipe must be made within 15 years of the completion of the regulated building service to which the complaint relates.8 There is no dispute that the pipes are 'Typlex pipes' within the meaning of s 6(4) of the Building Services Act and that the respondents made the Complaint within 15 years of the completion of the Home in 2020. 18 Section 37 of the Building Services Act provides as follows: (1) Subject to regulations made under section 11(5), if the Building Commissioner is satisfied that a regulated building service that is the subject of a building service complaint has not been carried out in a proper and proficient manner or is faulty or unsatisfactory, the Building Commissioner may deal with the Building Service by making a building remedy order. (2) The Building Commissioner cannot make a building remedy order requiring - (a) work to be done of a value estimated by the Building Commissioner to exceed the prescribed amount; or (b) an amount exceeding the prescribed amount to be paid, unless the respondent consents to the order being made. (3) Unless a greater amount is prescribed by the regulations, in subsection (2) the prescribed amount is $100,000. 8 Section 6(1) refers to a 'building service complaint' which is defined in s 3 of the Building Services Act to be a complaint under s 5(1). -- 11 of 65 -- [2026] WASAT 48 Page 12 (4) The Building Commissioner may make any ancillary or incidental order the Building Commissioner considers appropriate. 19 There are no relevant regulations that affect the construction of s 37. 20 What was said in Wright at [24] to [33] about the relevant legislative provisions applies equally to this matter, save that the reference to 'the Home' in Wright at [31] should be read as a reference to the Home in this matter. We adopt what was said in those paragraphs with that amendment, as follows: [24] Section 36(1) of the Building Services Act defines the term 'building remedy order', as follows: A building remedy order consists of one of the following - (a) an order that a person who carried out a regulated building service remedy the building service as specified in the order; (b) an order that a person who carried out a regulated building service pay to an aggrieved person such costs of remedying the building service as the Building Commissioner or State Administrative Tribunal, as the case requires, considers reasonable and specifies in the order; (c) an order that a person who carried out a regulated building service pay to an aggrieved person a sum of money specified in the order to compensate the aggrieved person for the failure to carry out the building service in a proper and proficient manner or for faulty or unsatisfactory building work. [25] Section 36(2) provides that a building remedy order may require the order be complied with within a specified time. [26] Section 3 of the Building Services Act defines the term 'regulated building service' to include, relevantly: (a) a building service carried out by a registered building service provider or an approved home builder; and (b) home building work that is – (i) carried out by a person for another person under a home building work contract or other -- 12 of 65 -- [2026] WASAT 48 Page 13 contract or arrangement for gain or reward; and (ii) not carried out for a person who is in turn obliged to perform the work under another contract. [27] Section 3 of the Building Services Act relevantly defines the term 'building service' to mean 'building work as defined in s 3 of the Building Act 2011 (WA) (Building Act) section 3' and 'plumbing work'. [28] Section 3 of the Building Act defines 'building work' as follows: building work means - (a) the construction, erection, assembly or placement of a building or an incidental structure; or (b) the renovation, alteration, extension, improvement or repair of a building or an incidental structure; or (c) the assembly, reassembly or securing of a relocated building or a relocated incidental structure; or (d) the changing of ground levels of land for the purposes of work of a kind mentioned in paragraph (a), (b) or (c) to an extent that could adversely affect land beyond its boundaries; or (e) site work on any land for the purposes of, or required because of, work of a kind mentioned in - (i) paragraph (a), (b), (c) or (d); or (ii) paragraph (a) or (b) of the definition of demolition work; or (f) other prescribed work, but does not include work of a kind prescribed for the purposes of this definition as not being building work. [29] The definition of the word 'building' in s 3 of the Building Act is limited to providing that the term 'building' includes 'part of a building'. The ordinary meaning of 'building' as a noun is 'a substantial structure with a roof and walls'. [30] Section 3 of the Building Services Act defines 'home building work' as having the meaning given in s 3(1) of the -- 13 of 65 -- [2026] WASAT 48 Page 14 Home Building Contracts Act 1991 (WA) (HBC Act) which provides as follows: home building work means the whole or part of the work of - (a) constructing or re-constructing a dwelling including an existing dwelling and/or strata/community title dwelling; or (b) placing a dwelling on land; or (c) altering, improving or repairing a dwelling, including a strata/community title dwelling; or (d) constructing or carrying out any associated work in connection with - (i) any work referred to in paragraph (a) or (b); or (ii) an existing dwelling, including a strata/community title dwelling [31] The 'plumbing work' in the definition of 'building service' in s 3 of the Building Services Act is defined to have the meaning given in s 59I of the Plumbers Licensing Act 1995 (WA) (Plumbing Act). Section 59I of the Plumbing Act defines 'plumbing work' to mean work of a kind specified in the regulations to the Plumbing Act, to be water supply plumbing, sanitary plumbing or drainage plumbing. Given our finding at [7(d)] above, we find that the pipes were used in the Home's water supply plumbing system. Again, this was not in dispute. [32] Regulation 4(2) of the Plumbers Licensing and Plumbing Standards Regulations 2000 (Plumbing Regulations) provides: For the purposes of section 59I of the Act, water supply plumbing work is the installation, replacement, alteration, connection, disconnection, repair, testing, commissioning or maintenance of pipes, materials or components used or intended to be used for the supply of water from a water supply system to a point of discharge. [33] The Plumbing Regulations separately define the term 'water supply plumbing' in reg 3. However, it appears that the definition that appears in reg 4(2) is intended to apply, rather than the definition in reg 3, as reg 4(2) is expressly stated to be for the purposes of s 59I of the Plumbing Act. This is despite reg 4(2) referring to 'water supply plumbing work' rather than 'work of a kind specified to be …water supply plumbing'. -- 14 of 65 -- [2026] WASAT 48 Page 15 Ground 2 21 There is no dispute that the applicant is a 'registered building service provider' and that the applicant carried out a regulated building service. The applicant constructed a building, namely the Home, which falls within the meaning of both 'building work' and 'home building work' in the Building Services Act. In the course of carrying out that building service, the applicant carried out plumbing work within the meaning of the Building Services Act, namely water supply plumbing work comprising the installation and commissioning of the pipes for the supply of water in the Home. The Complaint concerns the latter. 22 Ground 2 requires us to decide whether the plumbing work carried out by the applicant is faulty or unsatisfactory, within the meaning of s 37(1) of the Building Services Act, in circumstances where it is accepted that the burst events occur as the result of a latent defects in the pipes. There is no evidence before us that the applicant failed to carry out the installation or commissioning of the pipes in a proper or proficient manner. 23 The first respondent filed written submissions on behalf of the respondents, which she addressed orally at the hearing on 27 November 2025. Those submissions, and the submissions made by the applicants9 and the intervenor in relation to Ground 2 in all six matters before us are summarised in our reasons for decision in Wright at [36] to [48] and [50] to [52]. Those paragraphs apply equally to this matter with the following amendments: (a) a reference to 'the applicant' in those paragraphs is to be read as a reference to the applicant in this matter and a reference to 'the respondent' in those paragraphs is to be read as a reference to the respondents in this matter; and (b) a reference to 'the Home' in those paragraphs is to be read as a reference to the Home in this matter. 24 With the amendments referred to in [23] above, we repeat what was said in Wright at [36] to [48] and [50] to [52], as follows: 9 The applicant in this matter, J-Corp. Pty Ltd (J-Corp), and the applicant in the other five matters before us, Ventura Home Group Pty Ltd (Ventura). -- 15 of 65 -- [2026] WASAT 48 Page 16 Applicant's submissions [36] The applicant's submissions focused on the term 'regulated building service'. The applicant submitted that term was limited to the relevant building, construction or plumbing activities carried out by a registered building service provider (subsequently referred to in these reasons as a 'builder') and does not also extend to the product, or outcome, of the builder's activities; that is the building or plumbing itself. [37] Accordingly, the applicant submitted that where the regulated building service is the construction of a building or the installation of pipes, a building remedy order can only be made under s 37(1) of the Building Services Act if there is something about the way the construction or installation activities were carried out that was not proper or proficient or that was faulty or unsatisfactory. [38] The applicant accepted that the selection and installation of materials is part of the building service provided by a builder. However, the applicant submitted that, unless the manner, or way, in which a builder carries out that selection or installation is faulty or unsatisfactory, there is nothing faulty or unsatisfactory about the building service provided. The applicant submitted that, in the case of the selection of materials, this would require a finding that the builder knew or ought to have known that the pipes are faulty or unsatisfactory. [39] The applicant submitted that the provision of faulty pipes was a consequence of the manufacture of the pipes and not connected to any service that the applicant had provided. The applicant submitted that the design and manufacture of the pipe was not within the scope of the regulated building service the applicant had provided. Accordingly, it was submitted that the 'regulated building service' cannot be said to be faulty or unsatisfactory because the design or manufacture of the pipes was defective. [40] The applicant accepted that it would be responsible for the work of a subcontractor or an agent. However, the applicant says that it is not responsible for the work of a manufacturer supplying the applicant with material, as it is not 'carrying out' work through a manufacturer, but rather installing a product manufactured by another. [41] The applicant accepted that an assessment of the end product may be relevant to the assessment of whether the work done in producing that end product is faulty or unsatisfactory. However, the applicant says, in this case, the end product does not inform the assessment of the work done in producing the end product, -- 16 of 65 -- [2026] WASAT 48 Page 17 because the cause of the burst events is a latent defect in the pipes. [42] The applicant acknowledged that the applicant's contended construction runs contrary to previous decisions of the Tribunal, in particular Northcott and Realgold Corporation Pty Ltd (ACN 117 580 560) (Northcott) and Holman and W&D Moffatt Pty Ltd (Holman). However, the applicant submits that these decisions do not bind us and are wrong as they construe the phrase 'faulty or unsatisfactory' in s 37(1) of the Building Services Act in a way that is disconnected from the phrase 'regulated building service'. Submissions of the Intervenor and the Respondent [43] The intervenor submitted that the applicant seeks to narrow the ordinary and natural meaning of s 37(1) of the Building Services Act by seeking to read into it a requirement that the builder be guilty of negligence or incompetence. The intervenor submitted that, in the case of the use of faulty or unsatisfactory materials, this would require an inquiry into the builder's state of mind or the appropriateness of the builder's conduct. The intervenor submits that this is inconsistent with the provisions of the legislation and previous decisions. [44] The intervenor submitted that the scope of the 'regulated building service' in this case encompassed all work necessary to achieve the construction of the Home, which necessarily included responsibility for the adequacy of materials incorporated into the construction, regardless of who manufactured them. [45] The intervenor submitted that the applicant's construction incorrectly narrowed the scope of the phrase 'has not been carried out in a proper or proficient manner or is faulty or unsatisfactory' and artificially excluded the use of materials which is inherent to the construction of a building. The intervenor say that this is contrary to the decision in Diploma Construction (WA) Pty Ltd v South Central WA Pty Ltd (Diploma). [46] The intervenor said that a number of the words used in the definition of 'regulated building service' could be used as verbs or nouns, depending on the context, and that the way 'service' is used in s 37 of the Building Services Act suggests that it is being used as a noun. However, the intervenor submitted that the construction exercise does not turn on this. [47] The intervenor submitted that the provision of a building service can be unsatisfactory by reference to the outcome the service -- 17 of 65 -- [2026] WASAT 48 Page 18 produces, and that the result of the work is part and parcel of ascertaining the sufficiency or adequacy of that work. The intervenor submitted that the pipes are not operating as intended and are unsatisfactory on that basis. The intervenor said that this does not depend on the exact cause of the failures or the builder's state of knowledge of any defect. [48] The intervenor submitted that the amendment of s 6 of the Building Services Act in 2024 to include express acknowledgement that a building service complaint may be made in respect of the 'use of a Typlex pipe,' demonstrated that a building service complaint that relies on the failure of such pipes will be a valid complaint under s 5(1) about a regulated building service being faulty or unsatisfactory. … [50] Accordingly, in addition to the intervenor's submissions, the respondent, by Ms McCutcheon, submitted that s 37(1) of the Building Services Act had two limbs. The first refers back to what occurred in the activities that have been performed in the construction of the building. However, the respondent submitted that the second limb uses the present tense 'is' which requires consideration of the state of the building at the time the building remedy order is being considered: that is, construing the 'regulated building service' as a noun. [51] The respondent submitted that the building remedy order is to remedy the 'regulated building service', and what is envisaged by that, is that something will be done to the building. The respondent submitted that, in that context, the reference to the 'regulated building service' must be a reference to the building. [52] The respondent submitted that the choice of products is inextricably entwined in the construction of the building, and the builder was responsible for the choices it (or its subcontractors) made in the components that comprise the plumbing system in the Home. The respondent submitted that s 37(1) of the Building Services Act allowed for liability to attach to a building that was unsatisfactory, even if the builder was not responsible for the manufacture of the defective products. (references deleted) Consideration 25 In Wright, we decided that we were satisfied, and found, that: -- 18 of 65 -- [2026] WASAT 48 Page 19 (a) the applicant in Wright, by installing the pipes in the home in that matter, carried out a regulated building service that is unsatisfactory within the meaning of s 37(1) of the Building Services Act; and (b) there was no adequate basis on which to exercise any discretion not to make the BRO, assuming such a discretion exists. 26 Our reasons for those decisions are set out in Wright at [53] to [89]. 27 We consider that those reasons apply equally in this matter with the following amendments: (a) a reference to 'the applicant' in those paragraphs should be read as a reference to the applicant in this matter and a reference to 'the respondent' in those paragraphs should be read as a reference to the respondents in this matter; (b) a reference to 'the Home' in those paragraphs should be read as a reference to the Home in this matter; (c) a reference to 'the BRO' in those paragraphs should be read as a reference to the BRO in this matter; (d) in [81] of Wright the words 'a single dwelling' should be replaced with the words 'double storey brick dwelling' and the reference to 'the home building contract' should be read as a reference to the Home Building Contract;10 and (e) the words in the second sentence of [82] of Wright 'six burst events in a period of less than 2 years and 3 months' should be replaced with the words 'nine burst events in a period of 3 years'. 28 With the amendments referred to in [27] above, we adopt what was said in Wright at [53] to [89], as follows: [53] If the definition of 'building work' as 'the construction of a building' is substituted for 'building service' in s 37(1) of the Building Services Act, the section allows the Building Commissioner to make an order that a builder remedy 'the construction of a building', as specified in the order, if: 10 See [7(b)] of these reasons. -- 19 of 65 -- [2026] WASAT 48 Page 20 (a) the builder has carried out the construction of the building; (b) the Building Commissioner has received a complaint about the construction of the building carried out by the builder not being carried out in a proper or proficient manner or being faulty or unsatisfactory; and (c) the Building Commissioner is satisfied that the construction of the building carried out by the builder has not been carried out in a proper and proficient manner or is faulty or unsatisfactory. [54] The words 'the construction … of a building' include the builder's work in carrying out the activities necessary to construct, or build, a building. In that sense, the term is used as a verb. That the builder's construction activities are intended to be the subject of s 37(1) is apparent from the words 'has not been carried out in a proper and proficient manner'. That much is uncontroversial. [55] However, in our view, the words 'the construction … of a building' also includes the finished work, or building. The construction of a building involves a builder undertaking construction activities using construction materials to produce a constructed building. In our view, the regulated building service that the builder carries out is the combination of activity, materials and resultant building; in other words, the 'regulated building service' encompasses the work done and the work produced. It is artificial, in our view, to impose a construction on s 37(1) of the Building Services Act that is limited to the activities undertaken by the builder and excludes the materials and the final product. In our view, such an interpretation is inconsistent with the words used in that section. [56] First, grammatically, s 37(1) of the Building Services Act has two different parts, or limbs, as was said in Northcott. As has been said, the first part, 'has not been carried out in a proper or proficient manner', clearly refers to the way the builder has performed the activities undertaken in the construction of the building. The word 'or', disconnects the second limb, 'or is faulty or is unsatisfactory', from the manner in which the regulated building service has been carried out. That drafting indicates that the legislature did not intend the second limb to be limited to whether the manner in which the builder had carried out the activities involved in the construction of the building was faulty or unsatisfactory. [57] Second, as the applicant's counsel conceded, it is difficult to reconcile the use of the word 'is', that is the present tense of the -- 20 of 65 -- [2026] WASAT 48 Page 21 verb 'to be', with an inquiry into whether activities completed sometime before the making of a building remedy order were carried out in a faulty or unsatisfactory manner. That difficulty also arises under s 5(1) of the Building Services Act, which refers to a complaint about the building service 'being faulty or unsatisfactory', using the present participle of the verb 'to be'. It does not arise under the first limb, as the words 'has not been carried out' refer to something that did not occur in the past, when the construction activities were being carried out. [58] There is no such conceptual difficulty if the second limb directs the Building Commissioner's inquiry into the state of the constructed building at the time the Building Commissioner is considering whether to make the building remedy order. On this construction, the Building Commissioner may make an order if the way, or manner, in which the builder carried out the construction of the building was not proper or proficient (using construction as a verb), or if construction of the building as completed is faulty or unsatisfactory (using construction as a noun). The latter may be the result of workmanship that is not proper or proficient, but it may be for some other reason, including, in our view, that faulty or unsatisfactory materials have been used. [59] Third, on this construction, the words 'is faulty or unsatisfactory' have some utility. On the applicant's construction, those words have little, if any, discernible work to do in addition to the words 'had not been carried in a proper and proficient manner'. [60] Consideration of the type of building remedy order that can be made under s 36(1)(c) of the Building Services Act provides some support for this construction. That section allows the Building Commissioner to make an order to compensate the aggrieved person 'for the failure to carry out the building service in a proper and proficient manner or for faulty or unsatisfactory building work'. The reference to 'faulty or unsatisfactory building work', in context, appears to be a reference to the final product rather than the activity used to produce that product. [61] In our view, this construction is equally open if the exercise referred to at [53] above is carried out using the relevant definition of 'plumbing work' as 'the installation of pipes used for the supply of water', or the definition of 'home building work' as 'the work of constructing a dwelling', is substituted for the words 'regulated building service' in s 37(1) of the Building Services Act. [62] In light of what we have said, we do not consider that the fact that the word 'service' is used in the term 'regulated building -- 21 of 65 -- [2026] WASAT 48 Page 22 service' requires a different conclusion as the applicant has submitted. [63] We do not consider that the wording of s 30(1)(a) of the Building Services Act undermines this construction. Section 30(1) provides as follows: If, at any time before a building remedy order is made in respect of a building service complaint accepted by the Building Commissioner, the Building Commissioner is of the opinion that: (a) a person has carried out, or is carrying out, the regulated building service complained about in a manner that is likely to be found to be not proper or proficient or to be faulty or unsatisfactory; and (b) it is likely that the person will continue to carry on the regulated building service in that manner; and (c) there is a risk that a person or persons may suffer significant loss or damage as a result of the carrying out of the regulated building service in that manner if immediate action is not taken the Building Commissioner may, without further inquiry or investigation, make an interim building service order pending determination of the building service complaint. [64] Unlike s 37(1) of the Building Services Act, s 30(1)(a) expressly connects, and conditions, the words 'in a manner' with the words 'faulty or unsatisfactory' as well as the words 'not proper or proficient'. Again, it is difficult to identify what the words 'faulty or unsatisfactory' add to the words 'not proper or proficient'. However, s 30 of the Building Services Act operates in a different context where the construction of the building or dwelling or the installation of the plumbing (to use the relevant examples) is still in progress. [65] The mischief that s 30 of the Building Services Act seeks to address is to avoid further work being undertaken in the same manner. This is apparent from the terms of s 30(1)(c) of the Building Services Act and the scope of the 'interim building service orders' that the Building Commissioner may make. Section 30(2) of the Building Services Act says that an 'interim building service order' may either prohibit the carrying out of the regulated building service specified in the order or impose conditions in relation to the carrying out of that service, or both. This context explains why s 30(1)(a) is limited to the manner in which the work is being carried out. -- 22 of 65 -- [2026] WASAT 48 Page 23 [66] The fact that the legislature does not directly link the reference to a faulty or unsatisfactory building service to the manner in which that service is carried out in s 37(1) of the Building Services Act, as it does in s 30(1), suggests that the applicant's proposed construction does not reflect the legislative intention. [67] It follows from what we have said that we consider the decision of Northcott is correct. That decision considered identical wording in s 38(1) of the Building Services Act, which concerns building remedy orders made by the Tribunal in its original jurisdiction. [68] In Northcott, the Tribunal held that the regulated building service was the supply and installation of a crossover. The Tribunal said: [45] To fall within the scope of s 5(1) and s 38(1)(a) of the [Building Services] Act respectively, the complaint and finding about a regulated building service must be to the effect that the service 'has not been carried out in a proper or proficient manner or is faulty or unsatisfactory'. The language of that phrase suggests that it comprises two limbs, rather than being a composite phrase, for the following reasons: (a) the description 'in a proper and proficient' attaches to the manner in which the regulated building service has been carried out; (b) the phrase 'is faulty or unsatisfactory' makes it clear that this element attaches to the regulated building service itself (noting the use of the present tense 'is') rather than to the manner in which it 'has been carried out' (the latter using the present perfect tense); and (c) the limbs are further distinguished by the use of a negative criterion in the first limb ('the regulated building service…has not been carried out in a proper and proficient manner') and a positive criterion in second limb ('the regulated building service…is faulty or unsatisfactory') [for reasons other than the manner in which the work is carried out]. [46] …The formulation of the phrase as it appears in s 5(1) and s 38(1) of the [Building Services] Act suggests an intentional separation of the requisite character of the manner in which the work was carried out in the first -- 23 of 65 -- [2026] WASAT 48 Page 24 limb from the requisite (present) state of the resulting works in the second limb. [69] The Tribunal in Northcott went on to find that the crossover, that is the end product, was unsatisfactory because the deviation in the crossover's colour was such as to be properly characterised as different from the specified colour and was, accordingly, a material and unsatisfactory deviation from the contract specification. The circumstances in this case are more straightforward in that there is no dispute that the pipes are, at the least, unsatisfactory in circumstances where they do not reliably contain the water that they are intended to distribute. [70] It also follows that we consider Holman was correctly decided. The submission in that case was that there must be work that was faulty or unsatisfactory because of some act or omission of the builder. That proposition was rejected, with the Tribunal giving the following example: When a builder purchases an item of equipment, say for example, a particular type of tap from a reputable supplier, he may not be at fault in any way in installing it believing it to be in good order, but if the manufacturer has omitted to install within the tap a standard 'O' ring, or a washer, the tap will leak. It is faulty and the service provided is therefore unsatisfactory. [71] We note that the explanatory memorandum for the Building Services (Complaint Resolution and Administration) Bill 2010 (Building Services Bill) says in relation to the proposed s 5 of the Building Services Act: A complaint about a regulated building service hinges upon the quality of the performance of the regulated building service. If the quality of the service was not carried out in a proper and proficient manner or is faulty or unsatisfactory, then the making of the complaint is warranted. [72] The intervenor conceded that this ran contrary to the interpretation of s 37(1) of the Building Services Act that we have accepted. However, whilst the reference to 'performance of the service' suggests a reference to the acts performed in providing that service, the balance of the paragraph does not do so, and essentially repeats the wording of the legislation. The explanatory memorandum makes no relevant comment on the then proposed s 37(1) or s 38(1) of the Building Services Act. In our view, this is of no assistance in construing the meaning of s 37(1). -- 24 of 65 -- [2026] WASAT 48 Page 25 [73] However, even if our construction of s 37(1) outlined above is wrong, and the scope of that section is limited to activities undertaken by the builder, we do not accept the applicant's submission that it is not liable to remedy the defective pipes because it did not design or manufacture the pipes and did not knowingly use and install defective pipes. Whilst the design and manufacture of the pipes do not fall within the definitions of a 'building service', the use of materials is an essential part of the activities contemplated in the definition of 'regulated building service'. If the relevant regulated building service is limited to an activity the applicant has undertaken in the course of constructing the Home or installing the plumbing system, that activity is not the design or manufacture of the pipes, or the selection of the materials to use in construction before that construction commences. In our view, the relevant activity is the use and installation of the pipes in the course of constructing the Home. [74] That 'regulated building service' may be faulty or unsatisfactory if the builder uses or installs faulty or unsatisfactory materials, even if the builder did so unknowingly after undertaking reasonable care and skill in the selection of the materials. The unsatisfactory nature of the activity may be evaluated, or evidenced, by the result produced. In this case, the undisputed fact that the pipes do not reliably serve the purpose for which they are used and installed, to contain the flow of water, evidences that the builder's act of using or installing the pipes is unsatisfactory. [75] Further, in our view, the decision of Justice Mitchell in Diploma does not call for a different conclusion and is, in fact, analogous to this case. In Diploma, a builder constructed stormwater drainage in a carpark, following a design prepared by the engineers the builder had engaged for that purpose. The builder accepted that it was a regulated building services provider, that it carried out the construction of the drainage system, and that the drainage system was a building or incidental structure for the purpose of the Building Services Act. It was therefore uncontentious that the construction of the drainage system was a regulated building service. There is no discussion about whether that term was limited to the activities of construction or encompassed the finished product. There was, however, no suggestion that the manner in which the applicant had constructed the car park stormwater drainage was not proper or proficient or was faulty or unsatisfactory. The focus was on the fact that the carpark, as constructed in accordance with the engineer's design, did not have sufficient soak wells to accommodate a one in 10-year storm event, as required by the planning approval. -- 25 of 65 -- [2026] WASAT 48 Page 26 [76] The appellant in Diploma submitted that the design of the stormwater system did not fall within the definition of a regulated building service. Mitchell J accepted that the preparation of plans, without their implementation, was not building work and that, if the only activity had been the preparation of plans, there was no construction of a building to which the Building Services Act could apply. However, the construction of the carpark stormwater drainage system implementing the plans was accepted to be a regulated building service. His Honour said: [31] The Act does not expressly limit the reasons why a regulated building service may be regarded as unsatisfactory … The phrase 'not been carried out in a proper or proficient manner or is faulty or unsatisfactory' is a broad expression apt to cover a wide range of deficiencies in the construction of a building which can be taken into account. … [33] …The respondent's complaint was not that the appellant designed a carpark stormwater drainage system with inadequate underground water storage. Rather, the respondent's complaint was that the appellant carried out the construction of a carpark stormwater drainage system with insufficient below ground stormwater storage to accommodate a one in 10-year storm event. [34] It was, in my view, open to the Tribunal to be satisfied that the construction of the drainage works which the appellant carried out was unsatisfactory because the appellant constructed an inadequate number of soakwells. That was what the Tribunal found. It was no answer to the above findings for the appellant to say it had received advice from engineers, which it had engaged, as to the required number of soakwells … [35] Another premise behind the appellant's submission is that the design and the construction of a building are mutually exclusive concepts, at least in the circumstances of this case. I do not accept that premise. The ordinary meaning of the term 'construct' - to form by putting together parts; build; frame; devise - inherently comprehends aspects of design. Whether the construction of a building is satisfactory may depend on the configuration of the building, the materials used for the building and the methods used to place or join the materials chosen. The choices made about many of -- 26 of 65 -- [2026] WASAT 48 Page 27 these matters may be regarded as aspects of both design and construction of the building. The Act does not exclude the Tribunal from having regard to such matters so long as construction is involved. It is sufficient that the work can be characterised as the construction of a building carried out by the builder. If the work can be so characterised, it does not matter whether or not the work is also characterised as an aspect of design. [36] In determining whether building work has been carried out unsatisfactorily it will be appropriate for the Tribunal to have regard to all of the relevant circumstances. Those circumstances may include what the builder has been engaged to do. If the builder has been engaged to construct a specific number of soakwells, and the builder constructs that number of soakwells, then the Tribunal may not be satisfied that the building work is unsatisfactory because the number of soakwells is inadequate for a particular purpose. That is, it would be more difficult to regard work carried out in the manner required by the customer as unsatisfactory. In such a case the builder has done what has been asked of it. [77] The applicant says that Diploma is distinguishable as concerning the responsibility of a builder for the design of a building by the builder's subcontractor. The applicant accepted that it was responsible for its contractors but said that it was not responsible for the faulty or unsatisfactory products designed and manufactured by third parties, and that such design and manufacture was not part of the building service the applicant provided. [78] We accept that the design and manufacture of pipes, on their own, are not part of the construction of the building or the installation of the water supply plumbing under the Building Services Act, in the same way that the design of a stormwater drainage system, on its own, is not part of the construction of that drainage system. However, the applicant was responsible for using the pipes and installing them into the Home during its construction, in the same way that the appellant in Diploma used the design of the stormwater drainage system in the construction of the stormwater drainage system. The use of the pipes was an essential part of the construction of the Home and the installation of the plumbing and, accordingly, the regulated building service the appellant carried out. [79] In our view, there is no basis for distinguishing between a builder who unknowingly constructs a car park with -- 27 of 65 -- [2026] WASAT 48 Page 28 unsatisfactory stormwater drainage on a faulty design, and a builder who unknowingly constructs a house and installs water supply plumbing with unsatisfactory pipes. In each case, the building service is unsatisfactory. In each case, the builder is left to pursue remedies against the supplier/designer but, in the meantime, must remedy the unsatisfactory work. [80] The applicant also submitted that Diploma required reference to a number of relevant circumstances, rather than merely reference to the finished product. However, whilst Mitchell J in Diploma offered some guidance about what may be regarded as a relevant circumstance, his Honour did not proscribe the number of circumstances that might be considered relevant. In this case, in our view, there are two relevant circumstances. [81] The first is that the applicant was responsible for using and installing the pipes in the Home. The home building contract provided that the applicant would construct a single dwelling including its plumbing. There is no suggestion that the respondent had any input into choosing the pipes. [82] The second is the admitted fact that the pipes are defective. In this case, the evidence is that there were six burst events in a period of less than 2 years and 3 months. The provision of a plumbing system using such pipes is, at the very least, unsatisfactory. [83] For the sake of completeness, we agree with the applicant's submission that the view taken by those drafting the Policy about the scope of s 37(1) of the Building Services Act, is irrelevant to our determination of the proper construction of that section. [84] Additionally, in our view, consideration of the legislative purpose does not assist in the construction of s 37(1) of the Building Services Act. There is nothing in the description of that Act's purpose which indicates that it is legislation intended to benefit the consumer of building services, in particular, as submitted by the intervenor and Ms McCutcheon. The Building Services Act states only that one of its purposes is to provide a system for dealing with complaints about such services. The second reading speech of the Building Services Bill supports a finding that the legislative intention was to create a complaints process that would benefit all parties to a dispute about building services. In particular, the second reading speech referred to the creation of a two-stage dispute resolution service, with a formal process of conciliation before disputes become entrenched, and subsequent referral of intractable disputes to the Tribunal. It was said that this would ensure a more cost effective and consumer- -- 28 of 65 -- [2026] WASAT 48 Page 29 friendly process, that would save time, money and resources for both parties and the court system. [85] In addition, we do not consider that the amendment of the limitation period for complaints about the pipes adds to the construction of s 37(1) of the Building Services Act. The comments made during the second reading of the Building Services (Complaint Resolution and Administration) Amendment Bill 2024, were to the effect that the pipes were fitted in a large number of homes, and a number of those homes were experiencing leaks at an unacceptably high rate. Reference was also made to the industry response directed to achieving a position that every plumbing failure involving the pipes would be fixed in a proportional and staged manner. The limitation period for complaints about these pipes was to be extended to ensure that homeowners would have access to remedial work for leaks, whether or not their builder participated in the industry response. This indicates that the legislature contemplated that building remedy orders could be made based on the builder's use and installation of the pipes in a home. However, we do not consider that this progresses the construction of s 37(1), the issue being what that section objectively means, rather than what the legislators subsequently considered it meant. [86] For the reasons set out above, we are satisfied. and we find, that the applicant, by installing the pipes into the Home, did carry out a regulated building service that was unsatisfactory within the meaning of s 37(1) of the Building Services Act. Subject to what we say below, the BRO should be affirmed. Is it open to the Tribunal to set aside the BRO in any event, and should it do so? [87] The basis for asserting that there is a discretion under s 37(1) of the Building Services Act was not addressed in the applicant's submissions. We presume that the applicant relied on the use of the word 'may' in that section. However, where the Building Commissioner has referred a building service complaint to the Tribunal to deal with under s 38(1) of the Building Service Act the Tribunal has no such discretion. The Tribunal's options in that section are to make the building remedy order, if satisfied of the required matters, or otherwise decline to make the building remedy order. The only discretion the Tribunal has in its original jurisdiction, if it is satisfied that the regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory, is as to the type of building remedy order under s 36(1) of the Building Services Act that is then made. It is unlikely the legislature intended the Building Commissioner (and the Tribunal on review) to have a wider discretion under s 37(1) than the Tribunal has under s 38(1). -- 29 of 65 -- [2026] WASAT 48 Page 30 In our view, the use of the word 'may' refers to the fact that the Building Commissioner may decide to refer the complaint to the Tribunal, rather than make a building remedy order. [88] In any event, the sole basis on which the applicant says that we should exercise any discretion to set aside the BRO, is that the applicant has not been at fault or negligent in choosing the pipes or installing them into the Home. [89] In our view, even assuming there is such a discretion, this is not an adequate basis on which to exercise the discretion, and we would not do so. To do so would undermine the effect of the legislation which, in our view, is to cast the risk for using unsuitable materials on the applicant, rather than on the respondent. 29 For the reasons set out in [28] above, we are satisfied, and find, that the applicant, by installing the pipes in the Home, carried out a regulated building service that is unsatisfactory within the meaning of s 37(1) of the Building Services Act. Ground 1 Estimated value of the work 30 The first question raised by Ground 1 is whether the estimated value of the work required under the BRO exceeds the prescribed amount of $100,000. 31 This, in turn, requires us to answer two questions: (a) what do the words in s 37(2)(a) of the Building Services Act 'work to be done of a value estimated' mean, on a proper construction of that section; and (b) applying that construction of s 37(2)(a) to the evidence before us, do we estimate that the value of the work to be done under the BRO exceeds the amount of $100,000 prescribed by s 37(3) of the Building Services Act. 32 Before turning to those questions, we will first address briefly two other issues that arose during the hearing: whether it is necessary for the Building Commissioner to make an estimate, and whether the Building Commissioner had a sufficient basis on which to make an estimate. -- 30 of 65 -- [2026] WASAT 48 Page 31 Is it necessary for the Building Commissioner to make an estimate? 33 The respondents, but not the intervenor, initially submitted that it was not necessary for the Building Commissioner to estimate the value of the work before making the BRO. The submission was, in effect, that the Building Commissioner might avoid the express terms of s 37(2)(a) of the Building Services Act, which prohibit him from making a building remedy order requiring work to be done of a value he estimated to exceed the prescribed amount, by simply not estimating the value of the work. It is not clear that submission was maintained at the conclusion of the respondents' oral submissions. However, it cannot be accepted. It is implicit that the Building Commissioner will satisfy himself that he is acting within power before making an order, by estimating the value of the work. We must do the same in determining, on review, whether to exercise the powers of the Building Commissioner under s 37. Did the Building Commissioner have a proper basis on which to make an estimate? 34 The applicant submitted that the Building Commissioner did not estimate the value of the work, or did not have a proper basis to do so, because the only evidence before the Building Commissioner was an estimate of the value of the work in relation to a 'hypothetical' house and not the Home. There is no dispute that, in arriving at the decision to make the BRO, the Building Commissioner referred to a report of a firm of quantity surveyors, McGarry and Associates, dated 17 April 2024 of the costs to re-pipe a four-bedroom, three-bathroom, double storey dwelling house that was not the Home (McGarry Report).11 The applicant submitted that, whilst it may be permissible to rely on a quantity surveyor's opinion with respect to the cost of works in standard premises as a way of estimating value, the Building Commissioner was required to have regard to the specific works required for the Home and adjust the estimate accordingly. It was also submitted that it was necessary to conduct an inspection of the Home. 35 Under s 46(1)(c) of the Building Services Act, when making a building remedy order, the Building Commissioner may inform himself 11 In each of the six matters before us, the Building Commissioner referred to one of two different reports prepared by McGarry and Associates, both dated 17 April 2024. The report in this matter contained an estimate for a four-bedroom, three-bathroom double storey home. The other report contained an estimate for a four-bedroom two-bathroom double storey home. -- 31 of 65 -- [2026] WASAT 48 Page 32 in any way he thinks fit. We have the same power under s 32(4) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). 36 In our view, what the Building Commissioner must do, to satisfy himself that the value of the work to be done under a building remedy order does not exceed the prescribed amount, will depend on the facts of the particular case. Very little might be necessary where the value of the work is obviously below the prescribed amount. More is likely to be required in a borderline case. 37 However, we do not consider there is anything inherently unreasonable in the Building Commissioner relying on the McGarry Report to arrive at an estimate. It appears to us to be reasonable to do so, if the Building Commissioner is satisfied that the work to be done under the BRO is comparable to the home that is the subject of that report. 38 We also do not consider that an inspection of the Home was necessarily required. The Building Commissioner had been provided with information about the Home, including detailed plans of the Home. The contents of the applicant's expert reports were very similar across all six matters before us, evidencing that the work required in each home is not materially different in type. Indeed, the evidence that will be referred to in due course was to the effect that the work required by the BRO is not complex and is repetitive and routine. 39 However, it is not our role to decide whether the Building Commissioner made an error. We must reach the correct and preferable estimate of the value of the work ourselves, at the time of our decision, on the evidence before us, including the evidence produced by the applicants in the six matters before us. Construction of s 37(2)(a) of the Building Services Act Applicant's submissions 40 The applicant submitted that on a proper construction of s 37(2)(a) of the Building Services Act, the Building Commissioner, and therefore this Tribunal, must objectively estimate the value of the work to be done, according to the price freely contracting, fully informed parties would have offered and accepted for it. 41 The applicant said, in effect, that it was not open to the Building Commissioner, or this Tribunal, to estimate the value of the work -- 32 of 65 -- [2026] WASAT 48 Page 33 required by a building remedy order by reference to the external costs to a regulated building service provider (builder) of performing the works required by a building remedy order. 42 The applicant submitted that the text of s 37(2)(a) of the Building Services Act is silent as to the identity of the person for whom the work has value, and therefore that section dictates an assessment by objective criteria, being market rates or reasonable rates and prices, relying on Marks v GIO Australia Holdings Ltd (Marks).12 43 The applicant said that, had the legislature intended that the estimate in s 37(2)(a) of the Building Services Act be based on the cost to the builder, that could have been said in plain words, rather than by reference to 'value'. 44 The applicant submitted that, by s 37(2)(a) and (b) of the Building Services Act, the legislature had chosen to set a single criterion, namely whether the prescribed amount is exceeded, to define the limits of the Building Commissioner's discretionary powers. The applicant submitted that this militated against a construction that would set inconsistent criteria. 45 The applicant said that its construction gave consistency to the application of s 37(2)(a) and (b) of the Building Services Act, the latter of which applies to building remedy orders made under s 36(1)(b) and (c). The applicant submitted that, where a building remedy order is made under s 36(1)(b) of the Building Services Act, the sum to be paid will usually, if not always, reflect the amount to be charged to the complainant by a third-party builder or contractor retained by the complainant at arm's length to perform the work required to remedy the building service. The applicant submitted that, generally, that amount would be calculated at market rates and include a profit margin and preliminaries. The applicant submitted that there is no reason in principle why the assessment should be approached differently under s 37(2)(a), in relation to a building remedy order made under s 36(1)(a). 46 The applicant submitted that this construction finds support in s 51 of the Building Services Act, which allows the Building Commissioner to revoke a building remedy order made under s 36(1)(a) and replace it with an order under s 36(1)(b). The applicant said that this suggests the legislature intended that the value of the work in s 36(1)(a) would be 12 Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494 (Marks) at 514 [49] per McHugh, Hayne and Callinan JJ. -- 33 of 65 -- [2026] WASAT 48 Page 34 assessed in the same way as the amount to be paid under s 36(1)(b) or (c). Otherwise, the Building Commissioner might make an order under s 36(1)(a) and, subsequently, not be able to convert it into an order under s 36(1)(b). 47 The applicant also submitted that its construction of s 37(2)(a) found support in the fact that, under s 36(3) of the Building Services Act, a person who is not a building service contractor may comply with a building remedy order by arranging for the work to be carried out by a third party. The applicant submitted that it may not be known at the time the value of the work is being estimated that the work would need to be done by a third party, which suggested the estimate should be made on that basis from the outset. Intervenor's submissions 48 The intervenor submitted that an estimate that excludes the builder's internal costs is valid, rational and reasonable and should be adopted. 49 The intervenor said that the statutory task is to estimate the value of work to be done for the purpose of allocating decision-making responsibility between the Building Commissioner and the Tribunal, not to fix compensation or to assess loss. The intervenor submitted that, accordingly, Marks is not relevant as that case considered the term 'value' in the context of a damages claim under s 82(1) of the Trade Practices Act 1974 (Cth). 50 The intervenor submitted that items such as overheads, profit and contingencies, which would be included in a market rate valuation, would not necessarily be included in a valuation of the cost burden on the applicant. 51 The intervenor submitted that the BRO is made against, and directed at, the applicant, who carries the obligation to comply with the order. Accordingly, the intervenor submitted there was no error in a conclusion that the 'value' was the specific value to the applicant. Respondents' submissions 52 The respondents submitted that building remedy orders are work orders burdening builders to remedy their own work. The respondents submitted that, accordingly, what is contemplated under s 37(2)(a) of the Building Services Act is the wholesale value of the works. The respondents submitted that the valuation of the work should reflect -- 34 of 65 -- [2026] WASAT 48 Page 35 only the likely out of pocket cost to the builder to bring the work into conformity. 53 The respondents said that the estimate should not include a component for the builder's profit or overheads, because the builder cannot charge for the work, and other costs would be absorbed into the builder's general running costs. The respondents submitted that it was artificial to include such costs in a notional estimate of the value of the work. For this reason, the respondents submitted that the estimate should not include Goods and Services Tax (GST). The respondents also said that there should not be any allowance for what they described as 'speculative costs' such as inflation. Consideration of the construction of s 37(2)(a) of the Building Services Act 54 The Building Services Act does not define the word 'estimate', nor does it specify what the Building Commissioner, or the Tribunal, must do when arriving at an estimate. 55 In its ordinary and natural meaning an 'estimate' is 'an approximate judgment of the number, quantity, position, etc, of something'.13 Accordingly, an estimate is an approximation, and to estimate something is to arrive at that approximation. A requirement that the Building Commissioner make an estimate does not require the Building Commissioner, or the Tribunal, to determine the exact value of the work, but does require them to decide that the approximate value will not exceed $100,000. This did not appear to be in dispute at the hearing. 56 The dispute concerning the construction of s 37(2)(a) of the Building Services Act turns on the meaning of the word 'value'. 57 In our view, the value of the work must be estimated by reference to the builder's likely external costs, or out of pocket expenses, in carrying out the work the building remedy order requires the builder to do. We have reached this view because: (a) the context of the estimation of 'value' is that the Building Commissioner is determining whether to make a building remedy order under s 36(1)(a) of the Building Services Act to require the builder to arrange the work required by the order themselves; 13 Shorter Oxford English Dictionary (5th ed, 2002). -- 35 of 65 -- [2026] WASAT 48 Page 36 (b) in that context the use of the word 'value' rather than 'costs' indicates that the legislative intention is that the 'value' is to be assessed by reference to the additional expense to the builder in performing the work, rather than by reference to the costs the owner might incur in obtaining another builder to do so; and (c) this construction gives consistency to the monetary limits on the Building Commissioner's power to make building remedy orders under s 36(1)(a), (b) and (c) of the Building Services Act, by making each referable to the amount the builder will be out of pocket by reason of the order. 58 The word 'value' is not defined in the Building Services Act. A relevant dictionary definition of 'value' is 'the material or monetary worth of a thing, the amount of money, goods, etc, for which a thing can be exchanged or traded'.14 59 In contrast to the word 'value', s 36(1)(b) of the Building Services Act refers to the 'costs' of remedying the work. A relevant dictionary definition of the word 'cost' is 'what must be given in order to acquire, produce, or effect something; the price (to be paid) for a thing'.15 This appears similar to the ordinary meaning of 'value' referred to at [58] above. However, whilst the 'cost' of something will be the price placed on it by the seller, the 'value' of something may differ depending on whose perspective is being considered. 60 Section 36(1)(a) of the Building Services Act contemplates the builder doing the work required by the building remedy order themselves. How a builder goes about doing the work is likely to differ depending on how the builder operates its business. However, in each case the expectation is, generally, that the builder would arrange the work through the builder's own business. 61 In performing the work, the builder is likely to incur additional expense, over and above their internal business expenses. For example, the builder may have to use sub-contractors to perform aspects of the work because the builder does not have those skills and the builder may have to buy materials to carry out the work. 62 However, as has been recognised in this Tribunal, generally the expense the builder will incur in carrying out the work will not be 14 Shorter Oxford English Dictionary (5th ed, 2002). 15 Shorter Oxford English Dictionary (5th ed, 2002). -- 36 of 65 -- [2026] WASAT 48 Page 37 equivalent to the costs the owner would incur by contracting, at arm's length, with a third party to do work instead of the builder. It has been held in this Tribunal to be common practice that the builder first be given the opportunity to remedy defective work because it is recognised that this will minimise the hardship to the builder, who will usually be able to carry out the work at substantially less cost than the amount charged by a third-party contractor.16 63 On the other hand, s 36(1)(b) of the Building Services Act obviously contemplates the aggrieved owner engaging a third-party builder to complete the work at a cost; that is, the owner will pay for the work to be done at a price arrived at after an arms-length negotiation. Such an order would, generally, be based on evidence of the price a third party would charge to perform the work. This would include provision for profits, overheads and GST, being amounts the third party would be expected to charge and the owner, therefore, be required to pay.17 64 Section 41(4)(b)(iii) of the Building Services Act also refers to 'costs' in the context of a remedy order. That section defines a HBWC remedy order, made in respect of a complaint under a home building work contract, as including an order providing for specified payment to a builder in respect of 'costs, including overhead expenses and loss of profit, incurred by the builder under or in relation to the contract'. In this context, the word 'costs' is referring to the price the owner has agreed to pay under the contract.18 65 Accordingly, in our view, the use of the word 'value' rather than 'costs' in s 37(2)(a) of the Building Services Act, in context, supports a construction of that section that requires consideration of the work's value or 'worth' to the builder the subject of the order, rather than the costs of obtaining a third party to do the work. 66 Section 37(2)(a) and (b) of the Building Services Act are essentially procedural in effect. The effect of the monetary limit being exceeded under either s 37(2)(a) or (b) is that the Building 16 See Zimowski and Ideal Homes Pty Ltd [2022] WASAT 90 at [55] citing Nelson v Mardesic (1998) 22 SR (WA) 42 at 46 and Owners of Strata Plan 47111 and Pyramid Construction (WA) Pty Ltd [2018] WASAT 34 (Owners of Strata Plan 47111). 17 However, there have been circumstances where that is not the case. See for example Brooks and Gransden Building Company Pty Ltd [No 2] [2021] WASAT 86 at [34] and Glasson and McLean [2024] WASAT 96 at [22]. 18 It might be thought to be obvious, in those circumstances, that the builder's entitlement to such 'costs' would necessarily include any overheads and profit the contract provided for. However, the legislature has chosen to make that explicit. -- 37 of 65 -- [2026] WASAT 48 Page 38 Commissioner must refer the complaint to the Tribunal under s 11(1)(d) of the Building Services Act. The Tribunal will then deal with the complaint in its original jurisdiction, under s 38(1) of the Building Services Act, where the monetary limit is greater. Accordingly, there is no loss by the complainant of any substantive right if the estimate exceeds $100,000. 67 The legislative intention is clearly that there be a monetary limit on the burden that the Building Commissioner can place on a builder, after which the complaint must be escalated to the Tribunal for determination. Under the construction contended for by the applicant the estimate under s 37(2)(a) is to be assessed on the same basis as the owner's costs of engaging someone else to perform the work would be assessed under s 36(1)(b), without reference to the builder's actual out of pocket expenses in doing the work themselves. The construction of s 37(2)(a) of the Building Services Act that we adopt results in the builder being out of pocket, or having to pay, a maximum of $100,000 whether the building remedy order is made under s 36(1)(a) or (b) or (c). We consider that is to be preferred over a construction that focuses on consistency in the method of calculation but not on the effect of the order on the builder. 68 We accept the Intervenor's submission that the reasoning in Marks has no application to the construction of s 37(2)(a) of the Building Services Act. The comments in that case that the applicant relies on, about the way 'value' is determined, were made in the wholly different context of a claim for loss and damages for misleading and deceptive conduct under the former Trade Practices Act 1974 (Cth), where the claim was based on a difference between the price paid and the value of what had been acquired as a result of the misleading conduct.19 69 We do not consider that s 36(3) of the Building Services Act assists in the construction of s 37(2)(a), as submitted by the applicant. That section provides as follows: A person who is not a building service contractor may arrange for a building service to be carried out for the purpose of compliance by that person with a building remedy order referred to in subsection (1)(a) despite the Building Services (Registration) Act 2011 section 7. 19 Marks at [48] - [49]. -- 38 of 65 -- [2026] WASAT 48 Page 39 70 Section 36(3) of the Building Services Act does not apply to building service contractors, such as the applicant. It is, therefore, unlikely to apply in the case of most building remedy orders. If, in a particular case, the person against whom a building remedy order is proposed to be made is not a building service contractor, such as a retired builder, and must engage a third party to perform the work, it seems unlikely that would not be known before the order is made. 71 In any event, the apparent purpose of s 36(3) of the Building Services Act is to enable a person who is not a building service contractor to arrange for the remedial work to be carried out without breaching s 7 of the Building Services (Registration) Act 2011 (WA). That section prohibits a person who is not a building services contractor, or their employee, from carrying out a prescribed building service for another person. 72 Our view is also not altered by the provisions of s 51(2) of the Building Services Act. That section provides that, if satisfied that a building remedy order under s 36(1)(a) has not been complied with, the Building Commissioner or the Tribunal may, under s 51(2)(a), revoke the order it has made under s 36(1)(a) and, under s 51(2)(b), make an order under s 36(1)(b) or (c). 73 Section 51(6) of the Building Services Act expressly provides that s 37 applies to the making of an order under s 51. Accordingly, in making an order under s 51(2)(b), the Building Commissioner cannot order payment of a sum more than the prescribed amount. In addition, we accept that, on our construction of s 37(2)(a), the value of the work to remedy the building service, for the purposes of an order under s 36(1)(a), will usually be less than the costs of remedying the building service, for the purposes of an order under s 36(1)(b). 74 Accordingly, it is theoretically possible that, if the builder does not comply with the order under s 36(1)(a), the Building Commissioner will not be able to make an order under s 36(1)(b), as envisaged by s 51(2)(b) of the Building Services Act. We consider this is likely to be a rare occurrence. However, if it arises, under s 55(1) of the Building Services Act, the Building Commissioner may transfer the matter to the Tribunal, with the Tribunal's consent. We do not consider that this possibility requires the construction of s 37(2)(a) that the applicant proposes. -- 39 of 65 -- [2026] WASAT 48 Page 40 75 Accordingly, we conclude that the words, 'work to be done of a value estimated by the Building Commissioner to exceed the prescribed amount', in s 37(2)(a) of the Building Services Act, require the Tribunal to consider the out of pocket, or additional, expense the builder is likely to incur in carrying out the work required by the building remedy order, and to estimate whether that expense will exceed the prescribed amount of $100,000. 76 In our view, the specific items of additional expense to the builder in performing the work that are properly included in the estimate will depend on the particular facts of a case. This may include the evidence of how the person to be bound by the order proposes to undertake the work required by the order. However, the estimate will not include fixed internal overheads, which are not additional costs of performing the work, nor a component for profit that the builder will not be charging itself. Estimate of the value of the work 77 In relation to the estimate of the value of the work required under the BRO, the applicant relied on the evidence of two independent expert witnesses, Luke Leeder and Richard Everitt, and the evidence of Jackson Brown, an employee of BGC (Australia) Pty Ltd (BGC). These witnesses appeared at the hearing and were cross examined. 78 We also have a copy of the McGarry Report, which was contained in the materials filed by the Building Commissioner pursuant to s 24 of the SAT Act. 79 Mr Leeder and Mr Everitt each provided separate reports in each of the six matters before us, including in relation to the Home. As we have said, the McGarry Report did not specifically concern the Home. The authors of the McGarry Report were not identified, nor were they called as witnesses. In addition, the McGarry Report was prepared in April 2024, approximately 20 months before Mr Leeder and Mr Everitt prepared their reports. In light of these matters, in reaching an estimate of the value of the work required under the BRO, we have not given any weight to the McGarry Report. Jackson Brown 80 Jackson Brown is employed by BGC as the General Manager of the BGC Housing Group (BHG), of which the applicant is a member. -- 40 of 65 -- [2026] WASAT 48 Page 41 81 The effect of Mr Brown's evidence about how the applicant in this matter and Ventura Home Group Pty Ltd, the applicant in the other five matters before us, would undertake the work required under the building remedy orders in each matter, if they were required to do so, was as follows: (a) save for minor works, BHG does not engage employees who undertake physical work on site, such as plumbing; (b) the four companies comprising BHG, including the applicant, employ a registered builder on a part time basis. The applicant does not employ other staff. However, the 80 full time equivalent staff employed by BGC Residential Pty Ltd perform work for all the BHG entities, including the applicant; (c) those 80 staff work in seven divisions of which two divisions deal with issues concerning the pipes. These are the Piping division and the Rectifi division; (d) the Piping division employs 10 full time equivalent staff. These serve as the primary source of contact for burst events and will arrange emergency work to stop leaks; (e) a new division called the Rectifi division was established in about June 2025 to manage the allocation of remedial works caused by damage to customers' homes from burst events, and to try to control subcontractor pricing, as it was perceived third party subcontractors may use the issue to charge a premium; (f) The Rectifi division employs 12 staff being five maintenance supervisors, six administrative staff and one business manager. Employees have received training. However, as of December 2025, they had not supervised the performance of a full home re-pipe; (g) scheduling the remedial works will include sourcing the necessary materials and obtaining quotes from subcontractors before the commencement of the works.20 This work would be performed by administrative staff employed by BHG either in the Piping Division or the Rectifi Division; (h) BHG has longstanding relationships with a core group of subcontractors who regularly perform construction works for 20 Witness Statement of Jackson Lee Brown dated 12 December 2025 at para 34. -- 41 of 65 -- [2026] WASAT 48 Page 42 BHG companies, although it was harder to maintain those relationships since BHG had decided, in 2023, to cease sales of new homes; and (i) if required to do the work under the BRO, the intention was to use sub-contracted tradespeople from this group of sub- contractors, under the management and supervision of the Rectifi division staff. This would result in an increase in the workload of the five supervisors currently employed in the Rectifi division. Each would be asked to manage and supervise at least one full home re-pipe, requiring them to perform overtime beyond their normal hours. The supervisors would, in turn, be under the supervision of the registered builder employed by BHG. 82 In answer to a question about whether BHG employed a supervisor to monitor the ceiling re-pipe work BHG has carried out, Mr Brown said that all BHG's work is supervised by the registered builder BHG employs for that purpose. However, the effect of his evidence, as we understood it, was that that person would not necessarily attend a site. Instead, BHG's employees will complete checklists of the work performed, for review by the registered builder. Luke Leeder 83 Luke Leeder is a registered builder with 15 years' experience. He prepared a report, dated 11 December 2025, identifying the scope of the works necessary to complete a full home re-pipe of the Home on two scenarios. In the first scenario, the respondents remain in the Home while the work under the BRO is being done. In the second scenario, the respondents vacate the Home while the work is being done. 84 In the first scenario, Mr Leeder identified each item of work necessary in each of the nine areas. Each area largely represented a room, other than two outdoor taps, which each comprised an area, and the ground floor 'bathroom 1' and 'laundry 1', which were treated as one area. The remaining areas on the ground floor were 'bathroom 2', 'kitchenette', and 'laundry 2', and on the upper floor were 'powder room', 'kitchen' and 'ensuite'. 85 In the second scenario, Mr Leeder said, in effect, that individual items of the same kind of work would be performed at the same time -- 42 of 65 -- [2026] WASAT 48 Page 43 across all areas: for example, that all electrical services will be made safe, or that all cabinets and bench tops will be removed. 86 Mr Leeder acknowledged that he had never conducted a full home re-pipe himself. However, he said that he had previously been involved in performing renovation works and in preparing scopes of work for full home re-pipes. He said that he was applying his knowledge of building supervision. 87 We consider that Mr Leeder had the relevant experience to give an opinion on the work necessary to perform a full home re-pipe on the Home. We are satisfied that Mr Leeder appropriately considered a variety of potential remedial works and has chosen what he has considers to be the most cost-effective method of replacement of the pipes in each area. 88 Specifically, we accept that Mr Leeder has attempted to limit destructive works as much as possible, as these increase the cost of the work, by increasing the amount of restoration work that is subsequently required. We also accept that Mr Leeder has appropriately considered whether the pipes could be capped and left in the walls of the Home, with replacement pipes being located alongside the capped pipes. 89 In addition, we accept Mr Leeder's rationale for requiring the complete replacement of waterproof membranes in rooms on the Home's upper level where pipes are being replaced. We accept that it is reasonable to replace the entire membrane in a room on an upper level as any damage to the original membrane caused in the removal of tiles may lead to very serious consequences if there is a subsequent leak of the replacement pipes. We also accept Mr Leeder's evidence that this is not necessary on the lower level, as any subsequent leak would safely drain through the slab. 90 We accept Mr Leeder's evidence that, where it is necessary to replace the entire waterproofing membrane, it will also be necessary to remove and replace the floor and wall tiles in the affected area. 91 Accordingly, we find that Mr Leeder's scope of works is an appropriate basis on which to estimate the expense the applicant is likely to incur in doing the work required by the BRO. -- 43 of 65 -- [2026] WASAT 48 Page 44 Richard Everitt 92 Richard Everitt is a director and principal of Oakwood Consulting, a firm of quantity surveyors. He is a chartered and certified quantity surveyor who is a professional member of the Australian Institute of Quantity Surveyors. His expertise as a quantity surveyor was not challenged and we accept his qualifications in that respect. His experience in the management and supervision of residential building projects was challenged, and we will refer to that in due course. 93 In a report dated 16 December 2025, Mr Everitt provided an opinion of the estimated value of the works required by the BRO in the Home.21 94 Mr Everitt said that, in each of the six matters before us, he had prepared a detailed schedule of work, with the assistance of an employee of Oakwood Consulting, Sarfraz Hussain, and relying on Mr Leeder's report of the scope of work required in each home. Mr Everitt said that the schedules of work in relation to each matter broke down the work required into specific tasks for each area where the pipes were to be removed and replaced. Mr Everitt then estimated the cost of labour, materials and plant to complete each activity. 95 In addition, Mr Everitt estimated the cost of what he described as 'preliminaries and overheads'. These concerned items that were not included in Mr Leeder's scopes of work. In particular, in each matter, Mr Everitt included an allowance for a project manager, a supervisor and a hydraulic engineer for the works, and an allowance for the cost of rental accommodation, in the second scenario where the residents vacate the home. 96 Mr Everitt estimated the cost to carry out the work required by the BRO to be $175,150, if the Home is vacated during the work, and to be $168,901, if the Home is not vacated, each estimate being inclusive of GST.22 97 The respondents have said that they intend to vacate the Home during the work. This was not in dispute during the hearing, and we accept that evidence. Accordingly, we find that the estimate of the value of the work should be made on the basis that the respondents will vacate the Home during the work. 21 Exhibit 25; Mr Everitt's report dated 16 December 2025 (Mr Everitt's report). 22 Mr Everitt's report at 2.7. -- 44 of 65 -- [2026] WASAT 48 Page 45 98 In Table 1 below, we have summarised Mr Everitt's calculations that resulted in the total of $175,150, where the respondents vacate the home. Table 1 ITEM NO DESCRIPTION AMOUNT 1. Area 1.1 External Tap West 1 $3,044 1.2 External Tap West 2 $2,602 1.3 Bath 1 Ground Floor $13,882 1.4 Bath 2 Ground Floor $12,422 1.5 Living 2 Ground Floor $4,620 1.6 Laundry 1 Ground Floor $5,995 1.7 Powder Room Upper Floor $6,170 1.8 Kitchen Upper Floor $3,457 1.9 Ensuite Upper Floor $13,038 Subtotal - Item 1 $65,230 2. Preliminaries and site overheads 2.1 Project manager $10,400 2.2 Supervisor $16,000 2.3 Hydraulic Engineer $7,000 2.4 Site Establishment $2,580 2.5 Fees $3,800 2.6 Rental property $14,373 2.7 Temporary works $1,680 Subtotal - Item 2 $55,833 Subtotal - Items 1 and 2 $121,063 3. Contractors Overheads and Profit $25,517 Subtotal - Items 1, 2 and 3 $146,580 4. Contingency (10%) $6,523 Subtotal - Items 1 to 4 $153,103 5. Price escalation to July 2026 (4%) $6,124 Subtotal of items 1 to 5 $159,227 -- 45 of 65 -- [2026] WASAT 48 Page 46 6. GST (10%) $15,923 TOTAL $175,150 Direct labour and material costs 99 Mr Everitt said that the total of $65,230 for Item 1 comprised of direct labour costs of $45,774.69 and material costs of $17,837.23 However, the addition of these two figures results in $63,611.69 not $65,230.24 Mr Everitt was unable to explain the difference of $1,618, although he said that he thought it may relate to the cost of installing a leak detection system. 100 Our calculation of the result of adding the individual amounts for direct labour costs and materials referred to in Appendix 9 of Mr Everitt's report in relation to each area is set out in Table 2 below. Table 2 AREA LABOUR COSTS MATERIAL COSTS TOTAL External Tap West 1 $2,404 $640 $3,044 External Tap West 2 $1,812 $790 $2,602 Bath 1 Ground Floor $9,979 $3,903 $13,882 Bath 2 Ground Floor $7,874 $4,548 $12,422 Living 2 Ground Floor $2,690 $1,930 $4,620 Laundry 1 Ground Floor $4,377 $1,618 $5,995 Powder Room Upper Floor $4,970 $1,200 $6,170 Kitchen Upper Floor $2,817 $640 $3,457 Ensuite Upper Floor $8,874 $4,164 $13,038 TOTAL $45,797 $19,433 $65,230 101 The individual totals in Table 2 for labour and materials differ from the totals referred to in the body of Mr Everitt's report referred to 23 See paragraphs 3.20 and 3.26 respectively of Mr Everitt's report. 24 See paragraph 3.53 and 4.29 of Mr Everitt's report. -- 46 of 65 -- [2026] WASAT 48 Page 47 in [99] above. However, the sum of these totals, being $65,230, is the total figure Mr Everitt used in his calculations. 102 The amount for 'Laundry 1 Ground Floor' in Appendix 9.11 of Mr Everitt's report included $1,880 for a leak detection system, being $880 for labour costs and $1,000 for material costs.25 Accordingly, the cost of installing a leak detection system has been included in Mr Everitt's assessment. 103 The respondents have agreed that the BRO should be varied to delete order 3, which required the applicant to supply and install a leak detection unit. This would reduce Mr Everitt's estimate by $1,880. 104 Mr Everitt said that he had derived the labour cost figures from the Rawlinson's Australian Construction Handbook 2024 trade wage rates as of 1 December 2024 (Rawlinson's rates), unless a rate was not available, as was the case for tilers. In that case, Mr Everitt has used what he described as a 'market tested rate', based on information he obtained at the time his report was prepared. 105 Mr Everitt said that he had reduced these figures by 20%, being the amount allowed in the Rawlinson's rates for the builder's overheads and profits. Mr Everitt said that he had then added 7.79% to account for the escalation in labour rates since the Rawlinson's rates had issued. This escalation was not applied to a 'market tested rate'. 106 Mr Everitt's calculations of the labour rates that result from the calculations referred to in [105] above appear at Appendix 9.15 of his report. The rate identified as the 'market tested rate' for a tiler is $132 per hour including overheads and profit, and $110 per hour excluding overheads and profit. Accordingly, the rate of $132 includes an amount of 20% for overheads and profit,26 consistently with the approach Mr Everitt has taken with the Rawlinson's rates. However, the rate that Mr Everitt used in his estimate for the cost of engaging a tiler is $132 per hour rather than $110. Appendix 9.5 shows Mr Everitt's assessment of $6,600 for a tiler was calculated at $132 per hour for 50 hours. In the case of each of the other trades referred to, the figure used is the rate less the overheads and profit component. 25 Assessed at $880 for 8 hours labour at $110 per hour and $1,000 for materials. 26 $110 x 20% = $22. $22 + $110 = $132. -- 47 of 65 -- [2026] WASAT 48 Page 48 107 Adjusting for this overstatement would result in a reduction in Mr Everitt's total estimate for labour costs of $1,100.27 108 Mr Everitt said that if the respondents vacate the Home for the duration, the works would be reduced by 15% on account of 'efficiencies'. He was not questioned on what he meant by 'efficiencies'. However, in Mr Everitt's report, he said that, if the respondents remained in the Home, he had considered the estimated labour hours without any reduction for those 'efficiencies'. Mr Everitt also said that the impact of the Home being vacant is that it would be easier and less costly to carry out the works because, if the respondents remain in residence, at least one toilet and shower or bath would need to remain usable. He said that a vacant home allows for an uninterrupted sequential working from one room to the next by the respective trades. Mr Everitt said that the respondents vacating the Home would also result in efficiencies in scheduling, as later stages of work could be commenced in rooms where the earlier stages have been completed, while the earlier stages were being completed in other rooms. 109 In summary, Mr Everitt said that the anticipated sequence of trades where the Home was vacant would be as follows: (a) terminate and make safe existing services, remove existing plumbing fixtures; (b) remove finishes, remove waste and expose existing pipework; (c) once two or three rooms in the second stage are complete, plumbers can remove and replace the pipes; (d) as the plumbers complete a room, trades such as plasterers, painters and tilers can sequentially complete their respective work; (e) plumbers can then reinstall plumbing fixtures and fittings, and carpenters can reinstall cabinetwork; and (f) final finishes, touch up and cleaning can be completed. 110 Mr Everitt reduced the overall schedule for the works from 10 weeks, if the home is occupied, to 8 weeks, if it is vacant. This, in turn, affects his calculations under the heading 'Preliminaries and site 27 $22 x 50 hours = $1,100. -- 48 of 65 -- [2026] WASAT 48 Page 49 overheads' including the total cost of project management, supervision, a hydraulic engineer and the allowance for rent. 111 Despite what is said in [108] to [110] above, Mr Everitt has used the same schedule of work, and calculation of the labour required, in estimating the cost of the works whether the Home is vacant or occupied. This, in turn, is based on Mr Leeder's scope of work if the Home is occupied. 112 We infer from this evidence that, in addition to the overall time being reduced as a result of more efficient scheduling, there may also be some reduction in total labour hours as a result of all the work of a similar kind being done at the same time, without the need to recall tradespeople to do work in the areas that were being used while the initial work was being done. On the evidence before us, it is not possible for us to say what this reduction might be, although, in our view, it is likely that the amount Mr Everitt has estimated for labour costs is, at least, a slight overestimate. We have not, however, taken this into account in estimating whether the value of the work required by the BRO will exceed the prescribed amount, as our estimate does not exceed $100,000 in any event. Project management and supervision 113 Mr Everitt's estimate for the cost of engaging a project manager was $10,400, calculated at $1,300 per day for one day a week for 8 weeks. The estimate for the cost of a supervisor of $16,000 was calculated at $1,000 per day for two days a week for 8 weeks. 114 With respect to the need for a project manager and a supervisor on each of the matters before us, Mr Everitt said that re-piping was quite a complex piece of work and that appropriate supervision was key to the quality of the work. 115 Mr Everitt accepted that the works identified in Mr Leeder's scope of works were largely repetitive, as Mr Leeder had said in his evidence. However, he did not accept that the work would not need the level of supervision that he had identified.28 He said that based on his experience, the assessments of the time required were appropriate.29 28 ts 86 to 87, 16 February 2026. 29 ts 84, 16 February 2026. -- 49 of 65 -- [2026] WASAT 48 Page 50 116 In our view, the work required by the BRO, as outlined in Mr Leeder's scope of work, is not complex and is properly described as repetitive and routine. 117 We also consider that Mr Everitt's experience of the management and supervision of residential building work is limited and dated. In his evidence, he said that he had been involved in this type of work when working for a family firm in the UK. Mr Everitt's CV indicates that he worked for Everitt Construction Ltd for a period of just over 4 years between June 1997 and October 2001, and that one of the areas he had experience in was contract management for various residential, commercial and industrial projects. 118 We infer from the evidence of Mr Brown referred to at [81] and [82] above that, at least in relation to the six matters before us,30 the applicant will not be engaging a third-party project manager or supervisor.31 The effect of Mr Brown's evidence is that the necessary preparatory work, such as sourcing materials, will be internally managed by administration staff, either in the Piping division or the Rectifi division, or both. There was no evidence that this could not be managed within current capacity. 119 We also infer on this evidence that Mr Brown did not envisage that each of the five supervisors in the Rectifi division would be required to spend anything like three full days a week on project management and supervision work in relation to each full home re-pipe they are assigned. This inference is supported by our finding that the work required by the BRO is not complex. In addition, once the destructive work necessary to regain access to the pipes is done, the work involves redoing the work the applicant undertook when building the Home, and repeated, to some extent, in the course of carrying out repairs after burst events. 120 For the reasons referred to in [116] to [119] above, we do not accept Mr Everitt's estimate of either the amount of time a project manager or a supervisor will be required. Nor do we accept that the applicant will incur expense in performing this work, in addition to its internal costs of employing the staff BHG has already engaged, at the rates Mr Everitt has used. 30 CC 459 of 2025, CC 462 of 2025 and CC 547 of 2025. 31 At Appendix 9 on page 3 of 24 of Mr Everitt's report dated 16 December 2025, he allows for a project manager for one day a week at $1,300 per day and a supervisor for two days a week at $1,000 for 8 weeks where the respondents have left the home. -- 50 of 65 -- [2026] WASAT 48 Page 51 121 We do not have evidence of the anticipated additional cost of overtime for the supervisors working in Rectifi division. However, we consider that it is likely to be substantially less than Mr Everitt's estimate total for project management and supervision of $26,400. 122 In our view, given the matters we have referred to, an estimate of $8,000 would be ample, allowing for supervision of a maximum of one day per week for eight weeks at the rate Mr Everitt has used of $1,000 per day. We consider that this estimate includes sufficient allowance for any time the supervisor might spend on what could be described as 'project management'. This is a reduction in Mr Everitt's estimate of $18,400. Hydraulic Engineer 123 Mr Everitt has included in his estimate an allowance for a hydraulic engineer of $7,000, calculated at $1,400 per day for 5 days.32 124 In his oral evidence Mr Everitt said, in relation to each of the six matters before us, that it was prudent and necessary for the longevity of the re-pipe work to have a hydraulic engineer undertake an assessment of the re-pipe work before it is covered up, 'given the circumstances'.33 He did not identify what these circumstances were. 125 This was contrary to Mr Leeder's evidence. He said, in evidence relating to all of the six matters before us, that it was not necessary to engage a hydraulic engineer in what is essentially a residential renovation, such expertise being limited to more complex jobs. We also note that when Mr Brown was asked by a respondent in another matter, Mr Shrestha, whether a hydraulic engineer had been used when BHG had conducted ceiling re-pipes, Mr Brown said 'no'. 126 As we have said, in our view, the work required by the BRO is not complex and is repetitive and routine. Additionally, in our view, Mr Leeder's experience in supervising building works was considerably greater than Mr Everitt's relatively limited, and dated, experience. In light of this, and the evidence of Mr Brown that we have referred to, we do not accept that it is necessary to engage a hydraulic engineer and find that it is not. Accordingly, we find the estimate should not include any allowance for the cost of engaging a hydraulic engineer. 32 Page 3 of 24 of Appendix 9 of Mr Everitt's report dated 16 December 2025. 33 ts 86, 16 February 2026. -- 51 of 65 -- [2026] WASAT 48 Page 52 Rental accommodation 127 Mr Everitt included in his estimate an allowance for rental expenses of $14,373, being for rent, electricity, water and storage costs totalling $1,437.29 per week for 10 weeks. The respondents have said that they will be able to secure alternative accommodation during the work for no cost. This was not in dispute during the hearing, and we accept that evidence. They have not sought a variation of the BRO to allow for rental expenses. Accordingly, we find that the estimate of the value of the work required by the BRO should not include any allowance for rental expenses. Overheads and Profit 128 In our view, the estimate should not include any amount for the applicant's overheads and profit. These are part of the applicant's fixed costs and are not additional costs of undertaking the work required by the BRO. Accordingly, we will not make any allowance for overheads and profits in our estimate. Contingencies 129 In addition, we do not accept Mr Everitt's evidence that there should be an allowance for contingencies; being an amount set aside for unexpected events that may increase the cost of the work. The examples Mr Everitt gave in his evidence concerned where earthworks are increased because of the unexpected discovery of rock, or where a builder is renovating an older house. However, in this case, the applicant itself built the Home relatively recently and subsequently conducted repairs after multiple burst events. Accordingly, there should be little by way of surprises in conducting the work required by the BRO. In our view, the 10% contingency Mr Everitt has included is not warranted. 130 We do note, however, that Mr Leeder said, in his report, that some provisional sums should be allowed to take into account the risk that certain additional expense may be incurred in performing the work. In particular, Mr Leeder said that: (a) in-wall mixer bodies can become damaged upon removal; (b) the main water line needs replacing from the water meter onwards and may require additional paving, gardening or landscaping; -- 52 of 65 -- [2026] WASAT 48 Page 53 (c) it may be necessary to replace the pipework running from the hot water unit to the extent they are not copper; and (d) there is a significant risk of damage beyond repair when removing existing benchtops. 131 Mr Everitt has already included the cost of replacing benchtops in his estimate. In relation to the balance of the works Mr Leeder has referred to, we consider that it is unlikely that these would result in any significant expense. However, in our view, some allowance should be made. We consider that an amount equal to 20% of the cost of materials would be ample. This totals $3,687.34 Price escalation to July 2026 132 As we said in [105] above, Mr Everitt increased the labour rates he derived from the Rawlinsons rates to account for the escalation in labour rates since the Rawlinsons rates had issued to the date he had been informed the work was expected to be done, from January 2025 to July 2026. Mr Everitt said that the addition of 7.79% allowed for an increase in the cost of labour since January 2025, but not materials. 133 As can be seen from Table 1, Mr Everitt also increased the amount arrived at for labour and material costs, preliminaries, overheads and profit and contingencies, by 4%. This was said to take into account the likely escalation in prices from November 2025 and July 2026, when it was expected the work would be done. Mr Everitt accepted that this resulted in a double counting of the effect of inflation on labour costs, from November 2025 to July 2026. 134 With respect to the escalation rate of 7.79%, Mr Everitt said that the calculation of this rate was as follows: (a) the building cost index as of January 2025 was 411; (b) the building cost index as of July 2026 was 443; (c) the difference between these two indexes was 32; and (d) 32/411 calculated as a percentage is 7.79%. 135 We accept the labour rates as calculated by Mr Everitt, subject to the qualifications we have already made. We also accept that it is appropriate to take into account the effect of inflation from the date of 34 $18,433 x 20% = $3,687. -- 53 of 65 -- [2026] WASAT 48 Page 54 the figures obtained and the date at which we are making the estimation, being the date of our decision. This is on the basis that we must make the correct and preferable decision about what the estimate of that value is at the time of our decision. Obviously, Mr Everitt's assessment goes slightly beyond that, as he has escalated labour costs to July 2026. 136 In our view, the Building Commissioner, and therefore the Tribunal, is required to estimate the value of the work to be done at the time of the assessment. There may be an argument for allowing for inflation if there was evidence that a builder would not be able to fix the builder's external costs of the work soon after a building remedy order was made, and where the work was expected to take a long time. 137 However, in this case we consider that it is likely that that the applicant will be able to fix the external costs within a short period of the BRO being made, and at least before July 2026. This is based on Mr Brown's evidence that the Rectifi division has been established to manage the remedial work, and that BHG has ongoing relationships with the necessary sub-contractors. 138 Mr Everitt said that he had calculated the materials cost based on information that he had obtained in November 2025, before completion of his report. We have not been provided with this information but infer that he was referring to a date at the end of November 2025, given the report is dated 16 December 2025. Mr Everitt accepted that he had used a flat 4% rate for price escalation in the figures we have summarised in Item 7 of Table 1. He did not explain how that percentage was arrived at. Given the rate of 7.79% for inflation over a period of approximately 18 months, a rate of 4% over 7 months may be a slight overstatement. However, as the resulting increase is relatively small, we will accept it. 139 Accordingly, we will include in our estimate allowance for an increase of 4% to July 2026 on the cost of materials of $18,433, 35 totalling $737. GST 140 In our view, there should be no provision for GST in the estimate of value. As Mr Everitt said, this is not a cost to the applicant because it is recovered. We infer that Mr Everitt was referring to the fact that 35 Being $19,433 minus the materials costs of installing a leak detection unit of $1,000 (see [101] and [102] above). -- 54 of 65 -- [2026] WASAT 48 Page 55 GST payable by a builder will be deducted from GST collected by the builder, with the balance being paid to the Australian Taxation Office, resulting in no cost to the builder. We cannot see any reason to include an amount of tax that the builder will not pay in our estimate of the value of the work. Conclusion on the estimate 141 For the reasons we have given, we find that it is appropriate to estimate the value of the work required under the BRO based on: (a) Mr Everitt's calculation of the cost of labour and materials, subject to what we have said about the allowance for a leak detection unit and the overstatement of the rate for a tiler; (b) Mr Everitt's calculation of preliminary costs, other than the amounts for a hydraulic engineer and rental expenses, and the need to reduce the amounts allowed to engage a project manager and supervisor to $8,000 in total; (c) an allowance of $3,687 to take into account the provisional sums Mr Leeder referred to; and (d) an allowance of $737 for the increase in the price of materials to July 2026. 142 Accordingly, we estimate the value of the work to be as summarised in Table 3 below. Table 3 ITEM NO DESCRIPTION AMOUNT 1. Material and Labour Costs $65,230 – ($1,880 + $1,100) $62,250 2. Preliminaries and site overheads $55,833 – ($7,000 + $14,373 + $18,400) $16,060 3. Provisional sum at 20% of the cost of materials of $18,433 $3,687 3 Price escalation from November 2025 to July 2026 at 4% on the cost of materials of $18,433 $737 TOTAL $82,734 -- 55 of 65 -- [2026] WASAT 48 Page 56 143 Accordingly, we estimate that the value of the work required under the BRO does not exceed $100,000. Can we refer the Complaint to the Tribunal 144 As has been noted above, the consequence of a finding that the estimated value of the work required exceeds $100,000 is that the BRO must be set aside. A question arose about how the matter could then be dealt with by us. Whilst it is not now necessary for us to determine this question, we consider that we should state our view, as it differed from the view expressed by the parties, and may arise in the future. 145 In the usual course, if the Tribunal sets aside a building remedy order and does not substitute its own decision for that order, the Tribunal will send the complaint back to the Building Commissioner for reconsideration, under s 29(3)(c)(ii) of the SAT Act. That section allows us to require the Building Commissioner to reconsider the complaint in accordance with any directions or recommendations the Tribunal considers to be appropriate. In a case where the Tribunal estimated the value of the work to be done will exceed $100,000, and where the applicant did not agree to our dealing with the complaint, it seems likely that the Tribunal would recommend the Building Commissioner refer the complaint to the Tribunal to be dealt with under s 38(1) of the Building Services Act. 146 The Building Commissioner's power to refer a complaint to the Tribunal to be dealt with in the Tribunal's original jurisdiction under s 38(1) of the Building Services Act arises under s 11(1) of that Act. That section provides as follows: The Building Commissioner must consider any report given to the Building Commissioner under section 10 and may, subject to the other provisions of this section - (a) dismiss the complaint; or (b) commence a conciliation proceeding under Division 3; or (c) deal with the complaint under section 37 or 42, as the case requires; or (d) refer the complaint to the State Administrative Tribunal for it to deal with under section 38 or 43, as the case requires. 147 It was the position of the parties that we could exercise the power conferred on the Building Commissioner under s 11(1)(d) of the -- 56 of 65 -- [2026] WASAT 48 Page 57 Building Services Act and refer the matter to the Tribunal to be dealt with under s 38(1). There seemed to be no dispute that, in the absence of the applicant's consent, under s 37(2) of the Building Services Act, to our dealing with the matter, this would be preferable to referring the matter to the Building Commissioner so he could refer the Complaint back to the Tribunal. However, in our view we cannot exercise the Building Commissioner's powers under s 11(1). 148 Section 29(1) of the SAT Act provides that, when dealing with a matter in the exercise of our review jurisdiction, we have the same functions and discretions corresponding to those exercisable by the decision maker in making the reviewable decision. Section 11(1) of the Building Services Act sets out the Building Commissioner's options when he has received a report under s 10. One of those options, under s 11(1)(c), is to deal with a complaint under s 37 of the Building Services Act. However, in making the reviewable decision, the Building Commissioner exercises power under s 37(1) of the Building Services Act, not 11(1)(c). Accordingly, in reviewing the decision, we are exercising power under s 37(1) of the Building Services Act and not s 11(1)(c). 149 In our view, if the legislature had intended the Tribunal to be able to refer the complaint to the Tribunal under s 11(1)(d), it must also have intended that the Tribunal be able to take the other actions referred to in s 11(1). There may appear to be no difficulty with the Tribunal dismissing the Complaint under s 11(1)(a), should the Tribunal decide to set aside the BRO for a reason that warranted that action. However, it is clearly not possible for us to exercise the option referred to in s 11(1)(b) of the Building Services Act, which refers to the Building Commissioner commencing a conciliation proceeding under Division 3. Division 3 of Part 2 of the Building Services Act sets out a scheme whereby, if the Building Commissioner decides to commence a conciliation proceeding, the Building Commissioner may appoint a 'conciliator'. That person is defined in s 23 of the Building Services Act to be a public service officer, approved by the Building Commissioner as a conciliator, whose duties consist of or include conciliation of complaints under the Building Services Act. In our view, the legislature cannot have intended the Tribunal to exercise power to refer a matter to conciliation by a public servant in the employ of the Department. 150 The conclusion that the powers under s 11(1) are confined to the Building Commissioner also finds support in the fact that this section -- 57 of 65 -- [2026] WASAT 48 Page 58 appears in Division 1. The provision of Division 1 set out the process the Building Commissioner must follow in dealing with a complaint. The only provisions in Division 1 that refer to the Tribunal do so in the context of the Building Commissioner dealing with a complaint. Section 12 provides that the Building Commissioner is not a party to proceedings where the complaint is referred to the Tribunal. Section 13(2) provides a complaint cannot be withdrawn if it is referred to the Tribunal. Section 13(4) provides that s 13 does not limit the Tribunal's powers under the SAT Act.36 Indeed, the latter two provisions suggest that the Tribunal has no power to dismiss a complaint under s 11(1)(a) of the Building Services Act. 151 Accordingly, in our view, this Tribunal does not have power to refer the Complaint to itself under s 11(1)(d) of the Building Services Act. Ground 4 152 The relevant clauses of the Policy, the evidence led by the applicant with respect to Ground 4 in all the matters before us, and our findings in relation to that evidence, are set out in our reasons for decision in Wright at [91] to [108]. Other than paragraph [108], those paragraphs apply equally to this matter with the following amendments: (a) a reference to 'the applicant' in those paragraphs is to be read as a reference to the applicant in this matter and a reference to 'the respondent' in that matter is to be read as a reference to the respondents in this matter; and (b) a reference to 'the Home' in those paragraphs is to be read as a reference to the Home in this matter. 153 With the amendments referred to in [152] above, we adopt what was said in Wright at [91] to [107] as follows: [91] The Policy was approved by the Building Commissioner under s 6A(1) of the Building Services Act. It sets out a procedure for dealing with complaints concerning the failure of the pipes in Western Australia. By s 6A(4) of the Building Services Act, the Policy is taken to have been certified as a statement of policy for the purposes of s 28 of the SAT Act. There is no dispute that the Building Commissioner had regard to the Policy in making the decision to make the BRO, as is apparent on the evidence before 36 Section 46 of the SAT Act allows the Tribunal to give leave to withdraw proceedings or to dismiss or strike out proceedings. -- 58 of 65 -- [2026] WASAT 48 Page 59 us. Accordingly, s 28(2) of the SAT Act requires that we have regard to the Policy in these review proceedings. [92] The Policy states that it outlines how the Building Commissioner will deal with building service complaints made under the Building Services Act relating to the pipes. [93] Clause 10.5 of the Policy provides as follows: In making a building remedy order the Building Commissioner will consider the circumstances referred to in sections 4.3 and 7.3 and that for owners to achieve a meaningful remedy, any building remedy orders made in respect of the Typlex pipes must be capable of compliance by the respondent Builder. [94] The applicant relied on the last part of cl 10.5, that a building remedy order must be capable of compliance by the builder. Clause 4.3 of the Policy specifically notes that the overall market capacity to implement replacement of all pipes would be reduced by builders remedying plumbing failures. [95] Clause 7.3 of the Policy provides as follows: The Agreed Work Program was developed to take into account – (a) the number of Homes anticipated to be impacted by the Plumbing Failures; (b) the practical impossibility of immediately replacing all the Typlex pipes in Western Australia; and (c) the desire that the greatest number of Owners of Eligible Homes have access to a remedy that is proportional to the Plumbing Failures their Homes have experienced. [96] The 'Agreed Work Program' referred to in cl 7.3 appears in cl 7.1 of the Policy and, relevantly, provides that where there have been three or more 'Plumbing Failures': (a) If the Builder has not already done so, the Builder will replace the Typlex Pipes in the ceiling of the top floor of the Eligible Home; (b)(i) Builder will fix Plumbing Failure by removing and replacing the length of pipework where the Plumbing Failure occurred, if practicable, from the point where it enters the ceiling of the affected room to termination at the plumbing fixture; or -- 59 of 65 -- [2026] WASAT 48 Page 60 (ii) If the Plumbing Failure is in the wall, the Owner of the Eligible Home may select, in consultation with the builder - A. room re-pipe (zone re-pipe); or B. full home re-pipe of the Typlex Pipes in wall; (c) Occupant of the Eligible Home is offered accommodation outside their home during the full re- pipe, if needed; and (d) Following completion of the work referred to above, Builder will make good surfaces and repair all damage arising to the Eligible Home and its contents as a direct result of the Plumbing Failure. [97] There is no dispute in this case that, subject to our decision on Ground 2, and the exclusion of cl 2(c), to which the respondent has agreed, the BRO complies with the Policy, the Home having experienced more than three plumbing failures (or burst events). [98] There is obviously a greater context to these proceedings. It is not in dispute that the applicant is a company within the BGC group of companies (BGC) and also within the BGC Housing Group (BHG). Adam Cassotti, of BGC, in an affidavit sworn on 10 November 2025, said that BGC's records indicated that 4,350 burst events had been reported to BGC in 1,989 homes in which BGC companies had installed the pipes. [99] It is also not in dispute that the Building Commissioner intends to make a large number of building remedy orders requiring BGC companies to carry out re-piping of homes in response to other building service complaints about the pipes. The applicant submitted that there were at least 90 active building services complaints against BHG and the Building Commissioner has issued about 39 proposed building remedy orders. [100] The applicant relied on the evidence of Jackson Brown, the general manager of BHG who gave evidence in a written statement dated 12 December 2025 and orally on 17 February 2026. [101] Mr Brown gave evidence generally about BHG's likely inability to comply if large numbers of building remedy orders are made in the future. However, in its opening submissions, the applicant accepted that it would be able to complete the work required by the BRO in this matter, and the other five matters before us, within 16 to 20 weeks from the date of any order we made. -- 60 of 65 -- [2026] WASAT 48 Page 61 [102] The applicant submitted, in effect, that it would be useful for us to give some guidance on how the matter of the scheduling of future building remedy orders should be approached. However, having considered the matter, we are of the view that it is not useful nor appropriate for us to make comments on hypothetical situations. The applicant will have the opportunity to make submissions to the Building Commissioner about the reasonable timeline for the completion of any future building remedy orders. Any such orders will have to take into account work that the applicant has already been ordered to complete, and to consider its actual capacity at that time to perform additional work. [103] On the figures given by Mr Brown, the applicant's submissions suggest that BHG would only be able to perform about six complete re-pipes every 12 weeks, or 24 per year at a maximum. Given the number of homes that are affected by this issue, it may be that BHG is not able to perform some work within any reasonable time period. In those circumstances, the Building Commissioner may consider whether a building remedy order of the type described under s 36(1)(b) of the Building Services Act, requiring the payment of money, is appropriate, rather than giving the applicant the opportunity to remedy the building service itself. However, it is also possible that the applicant's capacity to manage the remedial work might increase. In the Tribunal's view, these are matters to be considered on the basis of the facts as they are in the future, not on the basis of hypothetical possibilities. [104] Relevantly to these proceedings, Mr Brown said that BHG does not engage any employees who actually perform physical work on building sites, other than very minor works. Mr Brown said that BHG engages sub-contractors who are managed and supervised by BHG employees. [105] Mr Brown said that in about June 2025, BHG established a new business unit called Rectifi to manage rectification works resulting from burst events, which employs five maintenance supervisors, 6 administrative staff and 1 business manager. This division has not yet supervised the performance of a full home re-pipe, although the staff were receiving training up until mid-October 2025. [106] Mr Brown said that BHG had performed a number of full home re-pipes, apparently before the establishment of Rectifi. He said that, on the basis of those, he estimated that a full home re-pipe would take approximately 12 weeks to complete, assuming that the homeowner does not completely vacate the home. He said that did not include any administrative lead-in time and assumed -- 61 of 65 -- [2026] WASAT 48 Page 62 all materials had been sourced before the commencement of the works. [107] Mr Brown said in his written statement that it was difficult to estimate how much administrative lead in time might be needed, and that the work may be impacted by the need for staff to liaise with homeowners to schedule the works and to find alternative accommodation, if necessary. He said there may also be the need for the homeowner to consider alternative selections of replacement products damaged during the remedial work (such as tiles) if the products originally used in the home were no longer available, and then for BHG to source the product. Finally, he said that it may take time to obtain quotes from subcontractors and for them to be available to perform the work. (references deleted) 154 In Wright, we said at [108] as follows: In his oral evidence, Mr Brown said that 3 months lead time would be needed in each case. We are not prepared to accept that evidence to be reliable for the following reasons: (a) in its submissions dated 2 February 2026 the applicant conceded, in effect, that it could perform six full home re-pipes at any one time and would require 16 to 20 weeks to perform the works, allowing for 4 to 8 weeks administrative lead in time. It may be inferred that this was based on instructions from the applicant, including the detailed evidence in Mr Brown's statement; (b) the estimate of 3 months was not contained in Mr Brown's witness statement but in his oral evidence in response to a question from a member of the Tribunal, and appeared to be an off the cuff remark. When asked to explain this estimate, Mr Brown gave an example of what appeared to be a very unusual situation, where the occupier of a home had highly specialised accommodation needs. That situation appears unlikely to arise regularly. We infer it will not arise in this case because the BRO was made on the basis that it would not be necessary for the respondent to leave the Home, and the respondent has not sought to vary the order to seek provision for accommodation expenses; and (c) the respondent in this matter, and the other five matters before us, appear to be highly motivated to co-operate with the applicant in ensuring the work occurs as expeditiously as possible. -- 62 of 65 -- [2026] WASAT 48 Page 63 155 Other than the last sentence in [108(b)] of Wright, [108(a)], [108(b)] and [108(c)] apply equally to this case, with the amendments referred to in [152(a)] above, and we adopt [108] of Wright to that extent. With respect to the last sentence in [108(b)] of Wright, in this case we have found that the respondents intend to vacate the Home whilst works are being performed under the BRO. That said, we have also found that the respondents are able to secure alternative accommodation at no cost. Accordingly, there will be no need for the applicant to arrange alternative accommodation for the respondents, which might have caused the lead in time before the works to be extended. 156 For the reasons referred to in [153] to [155] above, we do not accept that Mr Brown's oral evidence that 3 months lead in time will be needed in his case. We prefer the estimate originally given of a total of 16 to 20 weeks, and in the circumstances, we consider that a further 18 weeks will be a sufficient allowance, being the middle of the conceded range. We consider that it is preferable vary the BRO to fix a date for the completion of the works in the BRO, rather than specify a time period. 157 During submissions, the respondents submitted that, if extra time was to be allowed, the applicant should be required to replace all the pipes in any room (also known as a 'zone')37 where a burst event occurs. That submission was made in the context where, to date, BHG has been addressing the repair of leaking pipes by replacing only the damaged portion of the pipe. In the event that, contrary to its submissions, we determined that a building remedy order could and should be made, the applicant did not oppose such an order in relation to the Home. In our view, that approach would mitigate against concerns that the respondents have about the delay in replacing the defective pipes in the Home, to some extent, because any burst event before the work begins would bring forward that work, at least insofar as the room, or zone, in which the burst event occurs is concerned. We do not consider there would be any disadvantage to the applicant in bringing forward a portion of the work required by the BRO if a further burst event occurs. Terms of the order 158 With the modification that the BRO referred to should be the BRO in this matter, we adopt the reasons at [112] of Wright in relation to the use of the term 're-pipe' and the meaning of that term as follows: 37 Also referred to as an 'area' in Mr Leeder's and Mr Everitt's reports. -- 63 of 65 -- [2026] WASAT 48 Page 64 In our view, what the BRO requires, by requiring a complete re-pipe of the home, is that at the end of that process none of the pipes comprising the Home's water supply system are Typlex pipes. It is a matter for the applicant to determine what is the most cost-effective means to do that, which may involve not removing decommissioned Typlex pipes, if that is possible and reasonable in the circumstances. 159 We will also vary the BRO to delete orders 2(c) and 3 as agreed by the respondents. Stay order 160 Finally, given our decision is to vary the BRO, but not to set it aside, order 1 of the orders made on 18 September 2025, granting the applicant a stay of the BRO, should be set aside. Conclusion 161 For the reasons given we are satisfied that we have power under s 37(1) of the Building Services Act to make the BRO and that we are not prohibited under s 37(2)(a) from making the BRO. For those reasons, we are also satisfied that the BRO should be varied in terms of the orders set out below, and that the stay of the BRO should be lifted. Accordingly, we will make orders in the terms set out below. Orders The Tribunal makes the following orders: 1. Order 1 of the orders made on 18 September 2025 is set aside. 2. The Building Remedy Order O2024-0979 dated 30 May 2025 is varied as follows: (a) the words 'within 6 months of the date of this order' in the first line of Order 2 are deleted and replaced with the words 'by 10 September 2026'; (b) Order 2(c) and Order 3 are deleted; and (c) A substituted Order 3 is included after Order 2 in the following terms: If a Typlex pipe in the complainants' premises at [address redacted] fails, bursts or leaks before the work required under Order 2(a) has commenced the respondent must replace all the Typlex pipes in the -- 64 of 65 -- [2026] WASAT 48 Page 65 room, or zone, in which that failure, burst event or leak occurs as soon as possible. I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal. WH Associate to the Deputy President Judge Vernon 7 MAY 2026 -- 65 of 65 --