ALI AL MUSLIHI and MCCUTCHEON [2026] WASAT 47

[2026] WASAT 47 Page 1 JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA) CITATION : ALI AL MUSLIHI and MCCUTCHEON [2026] WASAT 47 MEMBER : MR D AITKEN, SENIOR MEMBER HEARD : 25 FEBRUARY 2026 DELIVERED : 6 MAY 2026 FILE NO/S : CC 492 of 2025 BETWEEN : SARAH ALI AL MUSLIHI Applicant AND BRODIE MCCUTCHEON Respondent Catchwords: Building dispute - Application for leave to review decision by original Tribunal to make a monetary order instead of a work order regarding faulty building work - Criteria for grant of leave to review - Factors relevant to exercise of discretion as to type of building remedy order to be made - Inadequate reasons for decision - Whether the applicant would suffer a substantial injustice if leave to review not given. -- 1 of 23 -- [2026] WASAT 47 Page 2 Legislation: Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5(1), s 11(1)(d), s 36(1), s 36(1)(a), s 36(1)(b), s 36(1)(c), s 38, s 38(1), s 38(1)(a), s 38(1)(b), s 43, s 49, s 58, s 58 (2), s 58(5) State Administrative Tribunal Act 2004 (WA), s 77, s 77(2) Result: Leave refused and application for review dismissed Category: B Representation: Counsel: Applicant : Mr W Vogt Respondent : Self-represented Solicitors: Applicant : Vogt Legal Respondent : N/A Case(s) referred to in decision(s): Bruce Construction Design Pty Ltd and Miklavs [2021] WASAT 166 Centex Australasia Pty Ltd v Commissioner for Consumer Protection [2017] WASCA 79 Filimon and Rimmer [2013] WASAT 13 Gemmill Homes Pty Ltd v Sanders [2018] WASC 179 Hippydayze Pty Ltd and Mener Group Pty Ltd [2019] WASAT 92 Jennings and Howitt [2019] WASAT 133 Jetpoint Nominees Pty Ltd and Lee [2021] WASAT 10 Kos and DND Building Co Pty Ltd [2020] WASAT 95 Myran Holdings Pty Ltd and Bombak [2013] WASAT 20 Nelson v Mardesic (1998) 22 SR (WA) 42 Trengove and Celebration Nominees Pty Ltd [2012] WASAT 65 -- 2 of 23 -- [2026] WASAT 47 Page 3 REASONS FOR DECISION OF THE TRIBUNAL: Introduction 1 The respondent, Ms Brodie McCutcheon (Owner) made a building service complaint (complaint) to the Building Commissioner against the applicant, Ms Sarah Ali Al Muslihi (Builder) under s 5(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) on 30 June 2022. 2 The complaint concerned building work carried out by the Builder in the construction of a residential dwelling in Balga (Dwelling), which the Owner purchased from the original owner. 3 The Building Commissioner referred the complaint to the Tribunal on 25 September 2024 under s 11(1)(d) of the BSCRA Act, which became Matter Number CC 683 of 2024 (original proceeding). 4 There were originally 29 items of complaint, but only 27 items of complaint were referred to the Tribunal, because items 3 and 5 were withdrawn by the Owner before the complaint was referred to the Tribunal. 5 Three items of complaint (items 7, 17 and 24) were withdrawn by the Owner during a mediation conducted by a Tribunal Member on 6 November 2024.1 6 A final hearing was held on 20 May 2025 (final hearing) before the Tribunal constituted by Member Carey and Sessional Member Burns (original Tribunal), which delivered its decision with oral reasons (Reasons for Decision) on 19 June 2025. 7 At the final hearing the Owner withdrew a further four items of complaint (items 1, 2, 28 and 29), which left 20 items of complaint to be determined by the original Tribunal. 8 Section 38(1) of the BSCRA Act provides as follows: (1) If the Building Commissioner refers a building service complaint to the State Administrative Tribunal, the Tribunal may - 1 The order made by the Tribunal Member at the mediation incorrectly stated that items 3 and 5 were withdrawn at the mediation. As noted in [4] of these reasons, those items had not been referred to the Tribunal. -- 3 of 23 -- [2026] WASAT 47 Page 4 (a) if the Tribunal is satisfied that the regulated building service that is the subject of the building service complaint has not been carried out in a proper and proficient manner or is faulty or unsatisfactory, deal with the building service complaint by making a building remedy order; or (b) otherwise, decline to make a building remedy order. 9 Section 36(1) of the BSCRA Act provides for three different types of building remedy order, two of which are relevant in this matter. First, an order that a builder remedy building work (work order): s 36(1)(a). Second, an order that a builder pay to a complainant the cost of remedying building work (monetary order): s 36(1)(b). 10 The original Tribunal declined to make a building remedy order in respect of one of the remaining items of complaint (item 9) pursuant to s 38(1)(b) of the BSCRA Act, having decided that the Builder was not liable for this item. 11 The original Tribunal made a building remedy order (Building Remedy Order) in respect of the other 19 items of complaint pursuant to s 38(1)(a) and s 36(1)(b) of the BSCRA Act. The Building Remedy Order was a monetary order that the Builder pay to the Owner the amount of $21,406. 12 That amount was comprised of: (a) $880 for the cost of installing a rainwater head in the box gutter (item 4); (b) $880 for the cost of remedying the lack of weep holes (item 6); (c) $1,870 for the cost of sealing and painting the tops of various doors (items 8 and 10 - 12); (d) $396 for the cost of the installation of a smoke alarm (item 13); (e) $15,400 for the cost of remedying the faulty waterproofing and insufficient fall of the floor in the shower and cracking of wall tiles in the bathroom (items 14 - 16); and (f) $1,980 for the cost of remedying defects in the roof structure (items 18 - 23 and 25 - 27). -- 4 of 23 -- [2026] WASAT 47 Page 5 13 The original Tribunal also made a costs order pursuant to s 49 of the BSCRA Act. The costs order was that the Builder pay to the Owner the amount of $5,269.50, being the amount which the Owner had paid to her expert witnesses. 14 The applicants have made an application to the Tribunal under s 58 of the BSCRA Act (review application) for an 'internal review' of the original Tribunal's decision to make the Building Remedy Order in the form of a monetary order instead of a work order.2 15 The review application does not seek the review of the amount of the Building Remedy Order, nor does it seek the review of the finding of the original Tribunal that the Builder was liable in respect of the 19 items of complaint the subject of the Building Remedy Order. 16 Section 58(5) of the BSCRA Act provides that a review application cannot be made unless the Tribunal gives leave for review. 17 The Tribunal for the determination of whether leave will be granted is constituted by legally qualified Senior Member Aitken, in accordance with the requirements of s 58(5) of the BSCRA Act. 18 For the reasons which follow, I have decided not to give leave to the Builder for review of the decision of the original Tribunal to make the Building Remedy Order in the form of a monetary order. Accordingly, I will dismiss the review application. Hearing of the application for leave to review 19 The application for leave to review was heard by me on 25 February 2026 (leave hearing). 20 The Tribunal prepared a hearing book (Hearing Book), which was taken into evidence during the leave hearing (Exhibit 1). 21 The Hearing Book included the transcript of the final hearing, the transcript of the Reasons for Decision and the book of documents which the Owner had put into evidence during the final hearing (Owner's Book). 22 The Hearing Book did not include the book of documents which the Builder had put into evidence during the final hearing because the 2 Section 58 of the BSCRA Act does not apply to the costs order. It only applies to an order made by the Tribunal under s 38 of the BSCRA Act to make or decline to make a building remedy order, or under s 43 of the BSCRA Act to make or decline to make a HBWC remedy order. -- 5 of 23 -- [2026] WASAT 47 Page 6 Builder did not file that book of documents in this proceeding despite being given the opportunity to do so. 23 Each party filed written submissions prior to the leave hearing and during the leave hearing, counsel for the Builder, Mr Vogt and the Owner made oral submissions. The criteria for the grant of leave to review 24 As noted by the Tribunal in Jetpoint Nominees Pty Ltd and Lee [2021] WASAT 10 at [38], the principles concerning whether leave should be granted, under s 58(5) of the BSCRA Act, to apply for an internal review, under s 58(2) of the BSCRA Act, of an order made by the Tribunal under s 38 or s 43 of the BSCRA Act are well established. 25 The main considerations are as stated by the Tribunal in Myran Holdings Pty Ltd and Bombak [2013] WASAT 20 (Myran Holdings) at [8], based on the discussion in Filimon and Rimmer [2013] WASAT 13 (Filimon). However, the range of considerations is not closed, and other matters may be relevant in a particular case. 26 In Myran Holdings at [8] the Tribunal stated: The following principles can be gleaned from the discussion of the applicable criteria for the grant of leave to review under s 58(2) of the [BSCRA] Act as discussed in [Filimon]: 1) It is necessary to show that the decision of the original Tribunal was wrong or attended with sufficient doubt. 2) It must be shown that if leave were not to be granted, the applicant would suffer a substantial injustice. 3) It will normally not be sufficient that the decision appealed from is apparently wrong or attended with doubt. Something more will need to be shown, such as that there is a significant question of law to be considered, or some other feature, which requires the consideration of the Tribunal to avoid a substantial injustice [if] leave were not to be granted. 4) The decisions of the original Tribunal are not to be read minutely and finely with an eye keenly attuned to the perception of error. 5) A broad view should be taken of all the material before the original Tribunal, and this Tribunal should be slow to grant leave to review or to allow reviews except in cases where, -- 6 of 23 -- [2026] WASAT 47 Page 7 clearly, there is no discernible basis for the decision or, for example, where fundamental rules of natural justice have been breached. 6) Leave may be granted in respect of only some and not other grounds of the proposed review. 7) Having regard to the objects of the Tribunal, and because any review is by way of a hearing de novo, there is all the more reason to be particularly discerning about whether sufficient doubt exists to open the possibility of leave being granted. 8) In considering challenges to the weight of evidence, regard must be given to the expertise of the members of the original Tribunal. The reasons given by the original Tribunal for making a monetary order instead of a work order 27 In the transcript of the Reasons for Decision, at pages 5 - 6, the original Tribunal stated: … As we have observed, the most common outcomes of a successful building services dispute are an order to remedy and an order to pay. Ms McCutcheon seeks an order to pay, referring to her personal difficulties with Ms Al Muslihi and the breakdown in the relationship. Ms Al Muslihi says that she has a right to access the property to remedy any defects, and described some of the prices being sought as crazy. Ultimately, the type of building remedy order is a matter for the tribunal. The Supreme Court said in Gemmill v Sanders [2018] West Australian Supreme Court 179 at 120: One of the matters that will be relevant in the majority of matters that come before the tribunal (where a building remedy order is sought) is the current state of the relationship between the parties. The tribunal will need to determine whether the relationship is such that if a work order is made, such an order is workable, or whether the state of animosity between the parties is such that the co-operation necessary to carry out such an order is absent, so that a payment or a compensation order is the appropriate order to be made. We have observed that the relationship between the parties is extremely poor. There is evidence in the documents of this, and also of arrangements for rectification of various items that came to nothing. Even allowing for some exaggeration in Ms McCutcheon's compensation document, it reflects a level of hostility between the parties which indicates the necessity for a remedy which does not involve any future physical contact between them. For these reasons, we shall make an order to pay in the case of all successful complaint items. -- 7 of 23 -- [2026] WASAT 47 Page 8 The Builder's submissions 28 The Builder submits that the original Tribunal erred in making the Building Remedy Order as a monetary order instead of a work order. 29 The Builder notes that s 36(1) of the BSCRA Act confers a discretion on the Tribunal as to the form of a Building Remedy Order. 30 The Builder submits that the applicable principles regarding the exercise of that discretion were identified in the following decisions: • Nelson v Mardesic (1998) 22 SR (WA) 42 (Nelson). • Trengove and Celebration Nominees Pty Ltd [2012] WASAT 65 (Trengove). • Gemmill Homes Pty Ltd v Sanders [2018] WASC 179 (Gemmill). • Hippydayze Pty Ltd and Mener Group Pty Ltd [2019] WASAT 92 (Hippydaze). • Kos and DND Building Co Pty Ltd [2020] WASAT 95 (Kos). • Bruce Construction Design Pty Ltd and Miklavs [2021] WASAT 166 (Bruce). 31 The Builder submits that the following principles can be drawn from those decisions. 32 The Builder submits first, that owners have no right to elect a remedy but may express a preference for a monetary order (Gemmill at [134] and Kos at [51]). 33 The Builder submits secondly, that the Tribunal has no power to compel an owner to provide access to a site to enable a builder to carry out a building remedy order. If such access is likely to be denied that would be a relevant matter of fact that the Tribunal could take into account (Gemmill at [135]). 34 The Builder submits thirdly, that factors which may be relevant in the exercise of the Tribunal's discretion when making a monetary order instead of a work order include: (a) whether there has been an irretrievable breakdown in the relationship between the parties (Trengove at [36]); -- 8 of 23 -- [2026] WASAT 47 Page 9 (b) whether an owner has justifiably lost confidence in the workmanship and skill of the builder (Nelson at [42]); (c) whether the builder has attempted to remedy the regulated building service previously unsuccessfully (Hippydaze at [126]); (d) whether the builder has refused to perform remedial work when invited to do so (Hippydaze at [126]); and (e) whether there is a history of litigation between the parties (Kos at [56]). 35 The Builder submits fourthly, that it is common practice to give a builder an opportunity to remedy its own work. This is because an order to remedy (work order) compensates the owner while minimising the hardship to the builder who can usually carry out the work at substantially less cost than the amount charged by a third-party contractor (Kos at [54]). 36 The Builder submits fifthly, that a work order is often made on the basis that it is determined to be the more appropriate remedy. The most significant reason is to ensure that the owner discharges their duty to mitigate their loss (Trengove at [33]). 37 The Builder submits sixthly, that a breakdown in the relationship between parties is not determinative of whether the Tribunal should make a monetary order. This is because a breakdown in the relationship is a natural consequence of a dispute between an owner and a builder (Kos at [56]). 38 The Builder refers to Bruce at [45] and submits that there is a discernible basis for the decision to make the Building Remedy Order, but the original Tribunal did not explain in sufficient detail the path of reasoning to arrive at the decision to make a monetary order instead of a work order in respect of other matters, such as those set out in Hippydaze and Kos, which were relevant to the situation in the original proceeding. The Builder submits that a particular matter, which was relevant, was that the Builder stated during the final hearing that she was willing to remedy the defects. 39 The Builder contends that the most appropriate Building Remedy Order is for a builder to remedy its own work and that it is only in limited circumstances that a monetary order should be preferred. -- 9 of 23 -- [2026] WASAT 47 Page 10 40 The Builder contends that one such circumstance is where there is an irretrievable breakdown in the relationship between an owner and a builder, but that is not determinative, as hostility and animosity is a natural consequence of disputes. 41 The Builder contends that in this case the Tribunal placed determinative weight on the poor relationship between the parties and focussed entirely on the hostility between the parties. 42 The Builder submits that the original Tribunal 'did not apply the full set of principles as identified in Kos and Trengove'. 43 The Builder contends that the original Tribunal did not ask whether: (a) 'the [Owner]'s loss of confidence was objectively justified'; (b) 'the [Builder] had attempted and failed to remedy'; or (c) 'the [Builder] had refused to perform remedial work when invited'. 44 The Builder says that, on the contrary, she stated at the final hearing that she was willing and able to carry out the remedial work and that was a relevant matter that should have weighed heavily in favour of a work order. The Owner's submissions 45 The Owner refers to the factors identified in the Builder's submissions (set out in [34] above) that may be relevant in the exercise of the Tribunal's discretion to make a monetary order instead of a work order and makes the following submissions. 46 The Owner submits that there has been an irretrievable breakdown in the relationship between herself and the Builder, which was evident throughout the course of the original proceeding. 47 The Owner submits that she has justifiably lost confidence in the workmanship and skill of the Builder and that the Builder did not provide any evidence that her loss of confidence is unjustified. 48 The Owner submits that the Builder attempted to remedy the faulty building works the subject of her complaint but failed to remedy -- 10 of 23 -- [2026] WASAT 47 Page 11 the works adequately, as proven by the Owner's evidence submitted during the final hearing. 49 The Owner submits that the Builder denied responsibility for the faulty works and did not respond to the Owner's invitation to the Builder following the mediation3 to arrange access to the Dwelling to carry out remedial works. 50 The Owner submits that she demonstrated to the original Tribunal very clearly during the final hearing why she was justified in her stance to not allow the Builder or the Builder's contractors to have access to the Dwelling to carry out remedial works. 51 The Owner submits that the review application should be dismissed. Consideration 52 The Builder contends that leave should be granted for review of the decision of the original Tribunal to make the Building Remedy Order as a monetary order instead of a work order because: (a) the Reasons for Decision do not explain in sufficient detail the path of reasoning to arrive at the decision to make a monetary order instead of a work order in respect of all the relevant factors; (b) a particular factor which was relevant and should have weighed heavily in favour of a work order, but not addressed in the Reasons for Decision was that the Builder stated during the final hearing that she was willing to remedy the defects; (c) the original Tribunal placed 'determinative weight' on the poor relationship between the parties and focussed entirely on the hostility between the parties; and (d) the original Tribunal did not address: (i) whether the Owner's loss of confidence in the Builder was objectively justified; (ii) whether the Builder had attempted and failed to remedy defects; or 3 I understand this to be a reference to the mediation mentioned in [5] of these reasons. -- 11 of 23 -- [2026] WASAT 47 Page 12 (iii) whether the Builder had refused to perform remedial work when invited. Were the Reasons for Decision adequate? 53 Section 77(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) provides that the reasons that the Tribunal gives for a final decision have to include the Tribunal's findings on material questions of fact, referring to the evidence or other material on which those findings are based. 54 In the context of a consideration of s 77 of the SAT Act the Court of Appeal in Centex Australasia Pty Ltd v Commissioner for Consumer Protection [2017] WASCA 79 (Centex) at [103] set out the following propositions: The statutory terminology used to define the obligation to provide reasons can and should be construed in the context of a line of decisions which, notwithstanding their dependence upon particular statutory provisions, inform the approach taken to the construction of particular statutory provisions such as those applicable to this case. The propositions established in those cases include the following: (a) the primary function of reasons is to allow an appeal court to determine whether the decision involved appellable error and to provide procedural fairness to the litigants who are entitled to know why they have been successful or unsuccessful; (b) the statement of reasons must explain the actual path of reasoning in sufficient detail to enable a court to see whether the decision is vitiated by error; (c) reasons need not be lengthy and elaborate, nor do they require a reference to all of the evidence led or to every submission advanced by the parties; (d) there is no mechanical formula which can be applied to determine whether reasons are adequate in any particular case - much will depend upon the particular circumstances of any individual case; (e) usually it will be necessary to look at the reasons as a whole, viewed in the context of the evidence; (f) where one set of evidence is accepted over a conflicting set of significant evidence the trial judge must set out his or her findings as to how it is that one has been accepted over the other; -- 12 of 23 -- [2026] WASAT 47 Page 13 (g) inadequacy of reasons does not necessarily amount to appellable error - rather, an appeal court will only intervene when the inadequacy is such as to give rise to a miscarriage of justice; (h) appellable error arising from inadequate reasons does not necessarily result in a new trial - in an appropriate course the appeal court may itself determine the matter. (Footnotes omitted). 55 I accept the Builder's contention that whilst there is a discernible basis for the decision to make the Building Remedy Order as a monetary order, the Reasons for Decision do not explain in sufficient detail the path of reasoning to arrive at the decision to make a monetary Building Remedy Order, rather than a remedial work order, in respect of all the matters which were raised during the final hearing. 56 A matter, which was relevant, but not addressed adequately in the Reasons for Decision was that the Builder stated several times during the final hearing4 that she 'has the right' to carry out remedial work. The Reasons for Decision refer to the Builder saying this, but then just go on to say that ultimately the type of building remedy is a matter for the Tribunal, without explaining in any detail why the original Tribunal did not accept that contention. 57 Also, in the Reasons for Decision the original Tribunal states that there is 'a level of hostility between the parties which indicates the necessity for a remedy which does not involve any future physical contact between them'. However, the Reasons for Decision do not explain the original Tribunal's reasoning regarding whether it might be possible for the Builder to comply with a work order by arranging for contractors to carry out the remedial work without the Builder being present. 58 Accordingly, in my view an error of law has been made by the original Tribunal by not providing adequate reasons for its decision to make a monetary order rather than a work order. Is the failure to provide adequate reasons a sufficient basis to grant leave for review of the decision of the original Tribunal to make a monetary order? 59 In Jennings and Howitt [2019] WASAT 133 (Jennings) the Tribunal (constituted by Senior Member Wallace, as Her Honour then was) considered whether leave should be granted under s 58(5) 4 ts 129, 130 and 133, 20 May 2025. -- 13 of 23 -- [2026] WASAT 47 Page 14 of the BSCRA Act for the review of an earlier decision of the original Tribunal in that matter to make a monetary order. One of the grounds of review was that the original Tribunal had made an error of law by failing to exercise its discretion as to the appropriate type of building remedy order to be made, because it adopted the election of a monetary order by the owner. The Tribunal decided that ground had been made out, but then, at [27] - [28] in Jennings, stated: 27 However, establishing that the original Tribunal has fallen into error is not in and of itself a sufficient basis on which leave to review should be granted. The applicant must also establish that if leave were not granted and the decision at first instance was left unreversed, that the applicant would suffer a substantial injustice. 28 It is common cause that when considering whether a substantial injustice will be suffered, the Tribunal considers whether a rehearing could result in a different outcome being reached, thus justifying the parties incurring additional costs, delay, inconvenience and the often experienced emotional turmoil associated with re-litigating the dispute. 60 That approach is consistent with the proposition stated by the Court of Appeal in Centex at [103(g)] (even though that was stated in the context of a different type of error) and I respectfully adopt that approach here. 61 Establishing that the original Tribunal has fallen into error is not in and of itself a sufficient basis on which leave to review should be granted. The Builder must also establish that if leave were not granted and the decision of the original Tribunal to make a monetary order was left unreversed, that the Builder would suffer a substantial injustice.5 Will the Builder suffer a substantial injustice if leave for review is not granted? 62 In my view, there is no need or requirement for the Tribunal when dealing with a building service complaint under the BSCRA Act to apply any 'full set of principles' in the exercise of its discretion as to whether to make a work order or a monetary order, as contended by the Builder.6 63 The Tribunal only needs to consider any of the factors which have been identified in the cases referred to in [30] above, or any other 5 Myran Holdings at [8(2)], Jennings at [27] and Centex at [103(g)]. 6 See [42] of these reasons. -- 14 of 23 -- [2026] WASAT 47 Page 15 relevant factors, which have been raised by either party during the final hearing of the matter. What factors relevant to the exercise of the discretion to make a work order or a monetary order were raised during the final hearing? 64 I have read the transcript of the final hearing conducted by the original Tribunal and I note the following relevant passages in the transcript. 65 At the outset of the final hearing, the original Tribunal asked the Owner whether she was prepared to allow the Builder access to the Dwelling to carry out remedial work in respect of complaint items on which she succeeded, or whether the Owner was seeking a monetary order in respect of such complaint items. The Owner stated that she was seeking a monetary order.7 66 The original Tribunal then asked the Builder what her attitude was regarding this. The Builder did not say that she was willing to and wanted to be allowed to carry out remedial work, or that she was opposed to a monetary order. The Builder stated that there were some complaint items that she accepted and she had put a value for them and there were other complaint items she did not accept. The Builder stated that it was hard to accept the amount being sought by the Owner and she did not know that amount has been 'gained'.8 67 The original Tribunal asked the Builder whether she had obtained any evidence in response to the estimates or quotes the Owner was relying on. The Builder stated that she did not have any such evidence because she had not been given the opportunity to do that. The original Tribunal asked the Builder what she meant by saying that she had not been given an opportunity. The Builder stated that the only time she had been given that opportunity was when she had a building inspector inspect the Dwelling and give her a building inspection report early in 2025 and she 'wasn't able to physically send people out to quote the work'. The original Tribunal asked the Builder whether she had tried to do that. The builder stated that 'the senior member9 said to me to work out how much it would cost me … if I were to repair it'.10 7 ts 10, 20 May 2025. 8 ts 10, 20 May 2025. 9 I take this to be a reference to Senior Member Le Miere, who conducted directions hearings in the original proceeding prior to the final hearing conducted by the original Tribunal. It is not a reference to me, because I did not have any involvement in the original proceeding. 10 ts 10 - 11, 20 May 2025. -- 15 of 23 -- [2026] WASAT 47 Page 16 68 The original Tribunal explained that there are two alternate remedies where liability for faulty work is found to exist. One is to allow the builder to go back and do the remedial work and the other is to make an order in favour of the owner for the cost of somebody else doing the work, provided the amount of the quote obtained by the owner is reasonable.11 69 The original Tribunal explained that in the second case, the builder could say either that the quote is reasonable or it is excessive, based on the builder getting somebody else to provide evidence of the reasonable cost, rather than the builder. The original Tribunal asked the Builder whether she had done that and she said that she had not been given the opportunity to do that.12 70 The Builder went on to state that if the original Tribunal were to give her the choice of a monetary order or a work order, she would choose 'whatever I was instructed', but she would 'go with at least three quotes … to try to get the most suitable quote for the repair price'.13 71 The original Tribunal referred to the programming orders which had been made by Senior Member Le Miere on 26 March 2025 for each party to file a list of the persons they proposed to call to give evidence and a short summary of the evidence to be given by each such person.14 72 The original Tribunal went on to ask the Builder whether, after 26 March 2025, she had asked the Owner whether she could have another builder go through the Dwelling to provide evidence regarding the costing of the remedial works. The Builder stated that the Owner's communication with her is so bad that she cannot speak to her and she had not made such a request.15 73 The Builder went on to say that even if she had tried to arrange this, the Owner would not have allowed it. In response to that assertion, the original Tribunal noted that the Builder had not tried so she could not know if the Owner was going to allow it.16 74 The original Tribunal asked the Builder what complaint items she agreed needed to be remedied and the Builder said that she accepted liability for the complaint items regarding the failure to seal and paint 11 ts 11, 20 May 2025. 12 ts 12, 20 May 2025. 13 ts 12, 20 May 2025. 14 ts 12, 20 May 2025. 15 ts 13 - 14, 20 May 2025. 16 ts 15, 20 May 2025. -- 16 of 23 -- [2026] WASAT 47 Page 17 the tops of various doors, but not any of the other remaining complaint items.17 75 The original Tribunal then noted that it needed to consider the evidence of the parties regarding the remaining complaint items. The original Tribunal noted that reports had been filed by the parties, which would be taken into evidence, and that it was necessary for the authors of those reports to give evidence in respect of their reports.18 76 The Owner said that her expert witnesses who had prepared reports were Mr Mark Tilbury of Houspect Building Inspections (a building inspector) and Mr Rick Hartley of Hartley Structural (a structural engineer).19 77 The Builder said that she did not have any expert witnesses and that she would just rely on the reports which she had filed.20 78 The original Tribunal pointed out to the Builder that orders had been made for the parties to call expert witnesses and it was necessary for the expert witnesses to attend the final hearing. In response, the Builder said that the Dwelling had been constructed for someone else than the Owner and sold to the Owner four or five years after completion and 'the house is still standing' and 'there is nothing wrong with it'. The Builder said that she had engaged an engineer and a building inspector who both said there is nothing wrong with the roof. She said that she had provided the reports and she would give her side in respect of the disputed items of complaint.21 79 The original Tribunal pointed out to the Builder that the Tribunal makes decisions on the evidence presented and the best way of testing the evidence is to have the author of a report at the final hearing in addition to their report so that the Tribunal members and the other party can ask questions of the expert witness regarding their report.22 80 The original Tribunal took into evidence as exhibits 1 and 2 the books of documents which had been filed by the Owner and the Builder.23 17 ts 16, 20 May 2025. 18 ts 16, 20 May 2025. 19 ts 16 - 17, 20 May 2025. 20 ts 17, 20 May 2025. 21 ts 17, 20 May 2025. 22 ts 18, 20 May 2025. 23 ts 21 - 22, 20 May 2025. -- 17 of 23 -- [2026] WASAT 47 Page 18 81 The original Tribunal then proceeded to consider all the complaint items which it needed to determine and in respect of which the parties had been given the opportunity to give their evidence. 82 Mr Tilbury and Mr Hartley gave evidence on behalf of the Owner. 83 The Owner and the Builder also gave evidence and made oral submissions. 84 During this process the Builder: (a) contended that there was no fault with the waterproofing or fall of the floor in the shower;24 (b) contended that there was no requirement for a rainwater head in the box gutter;25 (c) contended that there was no need for weepholes;26 (d) did not dispute that a smoke alarm had not been installed as indicated on the plans, but said that she had paid the original owner, who is an electrician, to install the smoke alarm and he had not done that.27 The Builder said that the Owner had not allowed the electrician to install the smoke alarm28 and that she wanted to be allowed to bring the electrician back to install the smoke alarm because she had paid him to do this;29 and (e) contended that the defects in the roof structure had been remedied by a contractor she had sent to the Dwelling on 25 September 2023.30 85 During this process the Owner: (a) confirmed that she had allowed the Builder to send a roof carpenter to the Dwelling on 25 September 2025 to carry out the remedial works to the roof structure which had been identified 24 ts 47 - 48, 20 May 2025. 25 ts 86, 20 May 2025. 26 ts 90 - 91, 20 May 2025. 27 ts 95, 20 May 2025. 28 ts 97, 20 May 2025. 29 ts 100 - 101, 20 May 2025. 30 ts 118, 20 May 2025. -- 18 of 23 -- [2026] WASAT 47 Page 19 the reports of Houspect Building Inspections and Hartley Structural;31 and (b) confirmed that the Builder's electrician had arrived unannounced at the Dwelling on 1 March 2023 to install the smoke alarm, but she was in bed unwell at that time and she called out to him to explain this and she was not being nasty and preventing him from coming in. She said that she had requested the Builder to give her notice ahead of the time of any visit.32 86 After the completion of that process of receiving the evidence in respect of those complaint items, the original Tribunal invited the Builder to make any further submissions in relation to those complaint items. The Builder stated that 'as a respondent and a registered builder, I have the right to have access to repair the items that I have admitted'.33 87 The Builder went on to say that she thought the final hearing had been one sided and that she has the right to go back. In response, the original Tribunal made the point that the Builder does not have such a right.34 88 The original Tribunal explained to the Builder that the Owner owns the Dwelling and she has the right to invite people to her property and she also has the right to refuse entry to people. 89 From the above consideration of the transcript of the final hearing, in my view, the following relevant factors arose during the final hearing for the consideration of the original Tribunal in the exercise of its discretion as to whether to make a monetary order of a work order: (a) First, the current state of the relationship between the Owner and the Builder. (b) Second, whether the Owner had justifiably lost confidence in the workmanship and skill of the Builder. (c) Third, whether the Builder had attempted to remedy the faulty work unsuccessfully. 31 ts 120, 20 May 2025. 32 ts 120 - 121, 20 May 2025. 33 ts 129, 20 May 2025. 34 ts 130, 20 May 2025. -- 19 of 23 -- [2026] WASAT 47 Page 20 (d) Fourth, the preference expressed by the Owner and the Builder as to the original Tribunal should make a work order or a monetary order. 90 I will consider each of these factors in turn. What is the current state of the relationship between the Owner and the Builder? 91 I note that there was no relationship between the parties in this matter as an owner and a builder in respect of the construction of the Dwelling because the Owner purchased it from the original owner for whom the Builder had constructed it. 92 The original Tribunal was correct in stating in the Reasons for Decision that there is evidence in the documents contained in the Owner's Book that the relationship between the Owner and the Builder is extremely poor. 93 For instance, the email sent by the Builder to the Owner on 12 February 202535 (three months prior to the final hearing) which includes the following comments: • Just so you know when the SAT proceeding ends I will recover every single dollar I have spent on this harassment act of yours. • You were a stir pot person. • I will proceed with legal action should you not stop harassing me immediately and withdraw the matter all together [sic]. • You are not just harassing me you are making me spend money, efforts and time on nonsense. • You have gone beyond acceptable. 94 During the final hearing the Builder stated that the Owner's communication with her is so bad that she cannot speak to her.36 Has the Owner justifiably lost confidence in the workmanship and skill of the Builder? 95 During the final hearing the Builder contended that there was no fault with the waterproofing or fall of the floor in the shower.37 35 Hearing Book, page 762 which is page 235 of the Owner's Book. 36 See [72] of these reasons. -- 20 of 23 -- [2026] WASAT 47 Page 21 However, the original Tribunal found that this was faulty and that the cost of remedying this was $15,400.38 96 During the final hearing the Builder contended that there was no requirement for a rainwater head in the box gutter and no need for weepholes.39 However, the original Tribunal found that these were required.40 97 During the final hearing the Builder contended that the defects in the roof structure had been remedied by a contractor she had sent to the Dwelling.41 The Owner confirmed that a roof carpenter had attended to carry out remedial works to the roof structure.42 However, the original Tribunal found that there were defects in the roof structure following that.43 98 In all of those circumstances, in my view, the Owner is justified in having no confidence in the ability of the Builder to arrange for the necessary remedial work to be carried out in a proper and proficient manner. Has the Builder attempted to remedy the faulty work unsuccessfully? 99 I have dealt with this in [97] above. What preferences were expressed by the Owner and the Builder as to whether the original Tribunal should make a work order or a monetary order? 100 The Owner stated at the outset of the final hearing that she was seeking a monetary order.44 101 When the original Tribunal then asked the Builder what her attitude was regarding this, she did not say that she wanted to be allowed to carry out remedial work, or that she was opposed to a monetary order.45 37 See [84(a)] of these reasons. 38 See [12(e)] of these reasons. 39 See [84(b)] and [84(c)] of these reasons. 40 See [12(a)] and [12(b)] of these reasons. 41 See [84(e)] of these reasons. 42 See [85(a)] of these reasons. 43 See [12(f)] of these reasons. 44 See [65] of these reasons. 45 See [66] of these reasons. -- 21 of 23 -- [2026] WASAT 47 Page 22 102 I note that it was only after all the Owner's evidence had been presented during the final hearing that the Builder asserted that she had the 'right' to be given access to the Dwelling to repair the faulty building work.46 In my view the reason for this was that it had become clear to the Builder at that stage, despite her contentions set out in [84] above, that the original Tribunal was likely to decide that she was liable for the items of complaint which she was disputing. It had also become apparent from the evidence presented by the Owner what the amount of the monetary order was likely to be because the Builder had not adduced any evidence herself regarding the cost of the requisite remedial work. 103 I do not accept that by the Builder contending at that stage of the final hearing that she had that 'right', she was genuinely expressing a willingness and ability to return to the Dwelling to carry out remedial work. 104 Neither an owner nor a builder has a 'right' to elect which form of a Building Remedy Order the Tribunal should make under s 36(1) of the BSCRA Act: Gemmill at [134]. 105 Also, the Tribunal has no power to compel or require an owner to allow access to their property for remedial work to be carried out in accordance with a work order and if there is evidence that such access is likely to be denied then this will be a relevant matter of fact that the Tribunal can take into account: Gemmill at [135] 106 In the Reasons for Decision, the original Tribunal referred to the observation of Smith AJ (as Her Honour then was) in Gemmill at [120] that one of the matters that will often be relevant in the exercise of the discretion of the Tribunal to make either a work order or a monetary order will be the current state of the relationship between the parties. Should the applicant be granted leave to review the Building Remedy Order? 107 Having considered the above factors which arose during the final hearing, I have concluded that the decision of the original Tribunal to make the Building Remedy Order as a monetary order was not wrong or attended with any doubt and, therefore, the Builder will not suffer a substantial injustice if leave is not granted to review that decision. 46 See [86] and [87] of these reasons. -- 22 of 23 -- [2026] WASAT 47 Page 23 108 Accordingly, I will make orders refusing leave to review that decision and dismissing the application for review. Orders The Tribunal orders: 1. Leave is refused for review of the decision of the Tribunal to make the building remedy order dated 19 June 2025 in Matter Number CC 683 of 2024. 2. The application for review is dismissed. I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal. MR D AITKEN, SENIOR MEMBER 6 MAY 2026 -- 23 of 23 --