CREIGHTON and BUILDMARK PTY LTD [2026] WASAT 87

[2026] WASAT 87 Page 1 JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA) CITATION : CREIGHTON and BUILDMARK PTY LTD [2026] WASAT 87 MEMBER : MR T CAREY, MEMBER MR R AFFLECK, SENIOR SESSIONAL MEMBER HEARD : 11 - 12 MARCH 2026 AND 6 MAY 2026 DELIVERED : 24 JULY 2026 FILE NO/S : CC 150 of 2025 BETWEEN : LESLIE CREIGHTON First Applicant SHIRLEY ANNE CREIGHTON Second Applicant AND BUILDMARK PTY LTD Respondent FILE NO/S : CC 364 of 2025 BETWEEN : LESLIE CREIGHTON First Applicant SHIRLEY ANNE CREIGHTON Second Applicant AND -- 1 of 33 -- [2026] WASAT 87 Page 2 BUILDMARK PTY LTD Respondent FILE NO/S : CC 151 of 2025 BETWEEN : BUILDMARK PTY LTD Applicant AND LESLIE CREIGHTON First Respondent SHIRLEY ANNE CREIGHTON Second Respondent Catchwords: Building dispute - Complaints that regulated building service not carried out in a proper or proficient manner or faulty or satisfactory - Modifications the subject of building contract under National Disability Insurance Scheme - Builder prevented from completing contract - Liability considered - Order to pay - Calculation of reasonable cost in the absence of submissions and evidence from applicants Building dispute - Contractual claims arising based upon failure to obtain a building permit and home indemnity insurance - Whether building permit and home indemnity insurance required Building dispute - Contractual claims for payment for provision of regulated building service and interest Legislation: Building Act 2011 (WA), s 9 Building Regulations 2012 (WA), s 41(3) Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 11(1)(d), s 36(1), s 36(1)(b) Home Building Contracts Act 1991 (WA), s 3(1), s 9(1), s 9(5), s 25B(4A), s 25C(1), Pt 3A, Div 2 -- 2 of 33 -- [2026] WASAT 87 Page 3 State Administrative Tribunal Act 2004 (WA), s 35 Result: Proceeding CC 150 of 2025 partially successful; order to pay made Proceeding CC 364 of 2025 unsuccessful Proceeding CC 151 of 2025 successful; order to pay made Category: B Representation: CC 150 of 2025 Counsel: First Applicant : In Person Second Applicant : Non-appearance Respondent : In Person Solicitors: First Applicant : N/A Second Applicant : N/A Respondent : N/A CC 364 of 2025 Counsel: First Applicant : In Person Second Applicant : Non-appearance Respondent : In Person Solicitors: First Applicant : N/A Second Applicant : N/A Respondent : N/A -- 3 of 33 -- [2026] WASAT 87 Page 4 CC 151 of 2025 Counsel: Applicant : In Person First Respondent : In Person Second Respondent : Non-appearance Solicitors: Applicant : N/A First Respondent : N/A Second Respondent : N/A Case(s) referred to in decision(s): Nil -- 4 of 33 -- [2026] WASAT 87 Page 5 REASONS FOR DECISION OF THE TRIBUNAL: 1 The applicants have filed two complaints under the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (the BSCRA Act) against the respondent concerning building works performed by it under a contract dated 19 December 2022 for the modification of an ensuite bathroom at 8 Orange Grove Boulevard Clarkson for the fixed price of $50,358. The modification was designed to cater for Mrs Creighton's special needs as a participant under the National Disability Insurance Scheme (NDIS), with the contract price to be paid by NDIS. 2 The applicants' initial complaint was against Celtic Builders Pty Ltd (Celtic). Upon investigation by the Building Commissioner it was found that Buildmark Pty Ltd was the builder who carried out the work and Celtic was the designated project manager. 3 The first complaint (CC 150/2025), which initially comprising one complaint item, has subsequently been fragmented into 21 items which were referred by the Building Commissioner to the Tribunal in accordance with s 11(1)(d) of the BSCRA Act. Of the 21 items, 8 are known as 'HBWC items' (being contractual items under the Home Building Contracts Act 1991 (WA)) (HBC Act) and 13 are known as 'workmanship items' (being complaints under the BSCRA Act of work not being carried out in a proper and proficient manner or being faulty or unsatisfactory). The second complaint (CC 364/2025) comprises two Home Building Work Contract (HBWC) items, previously in the first complaint but withdrawn, concerned with the respondent's failure to take out home indemnity insurance and obtain a building permit. Again, both items have been referred to the Tribunal. 4 The respondent has filed its own complaint (CC 151/2025) comprising two items, both of which have been transferred to the Tribunal. The first seeks amounts allegedly due and unpaid, and the second complains about the applicant's conduct in relation to the respondent's tradespersons and contractors and, ultimately, their action in preventing the respondent access to the site prior to practical completion. 5 For ease of reference, when we consider CC 151/2025 in these reasons we will continue to refer to Buildmark Pty Ltd as the 'respondent' and Mr and Mrs Creighton as the 'applicants'. -- 5 of 33 -- [2026] WASAT 87 Page 6 6 The Tribunal ordered that the three matters remain as separate proceedings but be heard and determined together with evidence in one being evidence in the others. The hearing commenced on 11 March 2026 and continued until lunchtime on 12 March, when it was adjourned part-heard to allow Mr Creighton to care for Mrs Creighton in the face of a medical emergency. The hearing proceeded to its conclusion on 6 May 2026. 7 We will deal, in order, with the applicants' first and second complaints followed by the respondent's complaints. There are some features of the entire matter we need to refer to before doing so. Preliminary matters (a) NDIS involvement 8 As mentioned, the project was the subject of arrangements under NDIS. Those arrangements included:1 • An NDIS complex home modification assessment to provide a wheelchair accessible bathroom for Mrs Creighton; • A complex home occupational therapist and registered NDIS service provider (Ms Rianne Colyer) was nominated; and • A preferred project manager specialist and registered NDIS service provider (Mr Jon Dunn from Celtic) was appointed. 9 Under these arrangements, a scope of works2 and drawings3 were prepared and put to tender. The respondent was engaged by the applicants as the cheaper of two quoting building companies. 10 Under the same arrangements, despite the building contract4 being between the applicants and the respondent, the NDIS agents to whom we have referred were directly involved in issues which arose in the course of the project. Mr Dunn's role as project manager rendered him as a decision-maker in relation to some issues, and some of those decisions were strongly disputed by Mr Creighton (as evidenced by naming Celtic as respondent to the applicants' original complaint). Be that as it may, the legitimate role played by Mr Dunn, and the concomitant reduced 1 We base our comments regarding the NDIS aspect of the project upon the applicants' document 'Material facts relevant to the complaint' (Hearing book commencing at page 28). (Exhibit 1). 2 Hearing book at page 341. 3 Hearing book at pages 301 - 302. 4 Hearing book at pages 384 - 411. -- 6 of 33 -- [2026] WASAT 87 Page 7 legitimate role of the applicants, and specifically Mr Creighton, in decisions which impacted upon the building service performed, is a matter of some significance. (b) The applicants' early termination of the contract 11 It is clear from the contemporaneous documentation that Mr Creighton, at least, was under the impression that the respondent was required to complete the project within 30 calendar days of commencement, to the extent that he arranged for his wife's respite care 'for a total of 4 weeks only'5 (Mr Creighton continuing to reside at the residence throughout the works). However, the contract is quite clear in providing for a time for completion of '30 working days from' commencement.6 12 The parties agreed on a commencement date of 31 January 2023. The respondent therefore had until 14 March 2023 to complete the works under the contract, rather than the date assumed by Mr Creighton of 2 March 2023. 13 Issues arising with the building project commenced early on. Relevant to the current matters, Mr Creighton raised with the respondent whether a structural head was required for the hallway door opening widening, the type of fixing of mesh reinforcement of the floor screed, progress (or lack thereof) being made by trades and its impact upon the completion date, selection of a vanity unit and finishes, quality of painting, and the relocation and alleged reduction of the ensuite door opening and other consequential impacts upon wheelchair accessibility. 14 Suffice to say that the tone of the email communications between the contractual parties deteriorated quickly, to the point that on 17 February 2023 Mr Creighton asked that his email of that day be treated as a breach notice with an option to terminate the contract. The same email said that Mr Creighton would be speaking with Mr Dunn to 'decide on where we will be going from here on'.7 15 Although Mr Creighton disputes the point, we accept Mr Alujevic's evidence that by 3 March 2023, Mr Creighton had denied access to all trade contractors engaged for the project by the respondent.8 5 Hearing book at page 144. 6 Hearing book at page 525. 7 Hearing book at page 151. 8 Hearing book at page 521. -- 7 of 33 -- [2026] WASAT 87 Page 8 16 Mr Creighton described the situation in terms of issues with the building needing to be resolved, a toing and froing of emails between all parties to try to fix the issues which went for a number of weeks until the end of March, and relations between the contractual parties further deteriorating to the point where Mr Creighton informed Mr Alujevic that all communication was to be through the project manager.9 The builder has never returned to site. 17 The question of whether or not the contract has been 'terminated' is a vexed one. The applicants submit, on the one hand, that the contract was never enforceable based upon their view of the consequences of the respondent's failure to obtain a building permit and home indemnity insurance. However, they arrived at this position well after the events of early 2023. During that period, Mr Creighton apparently regarded the situation as capable of resolution on the basis that the respondent retain some but not all of their contractual obligations.10 18 The issues extant at the time, and proposals for their resolution, are contained in various emails between 7 March 2023 and 14 April 2023 involving some or all of Mr Creighton, Mr Alujevic, Mr Dunn, Ms Colyer and Ms Ashleigh Jones, an NDIS planner. There is significant input from the NDIS officers, including settlement proposals which would have included variations of the scope of works and plans which were accepted by the respondent but not by the applicants. Each party served its own respective breach notice on the other during this period.11 19 It is, we believe, safe to say, and we find, that the parties have, by their conduct, terminated the contract at some time between 7 March 2023 and 14 April 2023, the termination having been precipitated by the applicants' refusal to allow the respondent entry to the site at a time before the end of the period allowed under the contract for it to complete the contracted building service. 20 Mr Creighton regarded his conduct as being warranted on behalf of the applicants on the basis of the quality of the respondent's work (and also by reason of his later claims concerning failure to obtain a building permit and home indemnity insurance). Based on our findings in relation to all claims against the respondent, we consider that the 9 ts 14 - 15, 6 May 2026. 10 See email Mr Creighton to Mr Dunn and Mr Alujevic dated 12 March 2023, in which it was proposed that the respondent be permitted, on conditions, access to site for certain tasks, but not others: Hearing book at pages 157 - 159. 11 Hearing book at pages 157 - 174, 582 - 603. -- 8 of 33 -- [2026] WASAT 87 Page 9 applicants had insufficient ground to refuse entry. In light of their repudiatory conduct in preventing the respondent entry to the site, any claims of alleged defective workmanship which we allow can give rise to a remedy only to the extent of faulty or unsatisfactory work already apparent, and not incomplete work which the respondent was deprived of the opportunity to complete. (c) The applicants' absolutist approach and its rationale 21 Another feature of this case is the applicants' refusal to countenance any outcome other than reimbursement of the cost of complete demolition and reconstruction of the building service provided by the respondent and other expenses claimed to have resulted from the respondent's breaches. 22 The applicants' advocacy for such a comprehensive remedy relies upon both the extent and nature of the respondent's defects and the respondent's failure to obtain a building permit and home indemnity insurance (the subject of CC 364/2025). 23 We do not consider that the cost of complete demolition and reconstruction is required in order to remedy those defects for which we find the respondent liable. 24 As will also be seen when we deal with complaint items the subject of CC 364/2025, we do not accept that a building permit and home indemnity insurance were required for the project. However, had they been, this would not in our opinion have warranted granting the relief sought by the applicants. 25 As was pointed out to Mr Creighton at the hearing, the absolutist quality of the claim, and the lack of any particularisation in the quotation relied upon by the applicants for the purpose of quantification, has meant that the Tribunal has very little to go on in order to assess the reasonable costs of remedying the isolated defective building service items as we have found them to be. However, as we will explain, we have, with the assistance of the respondent, fashioned an outcome which is of some benefit to the applicants, albeit of considerably lower value than that contended for. CC 150/2023 - Liability 26 Neither party relies upon any independent expert evidence to support its case on liability over and above the contents of any expert reports they have filed. Mr Creighton has indicated that the expense of -- 9 of 33 -- [2026] WASAT 87 Page 10 engaging such expert evidence was prohibitive for the applicants. Whilst we sympathise with them in this regard, our task remains to assess liability in light of the evidence and, in so doing, utilising the knowledge and experience of the building sessional member hearing the matters. As will become clear, we have had regard, to the extent we consider reasonable, to the oral submissions provided by both Mr Creighton, who informed us he is a qualified carpenter and has had some experience managing building sites (albeit not as a registered builder), and the respondent's director, Mr Alujevic, a registered builder. 27 We will deal with each item in turn. Concerned as we are with the substance of the applicants' complaints, where we do not deal with a particular item number according to the list of complaints referred by the Building Commissioner to the Tribunal, this is because the same complaint falls within and is dealt with under another item in the list, or it was expressly withdrawn by Mr Creighton in the course of the hearing. Item 2A: Tiling defects in bathroom 28 There is a number of different complaints within this item. (a) Insufficient floor tile falls, in shower recess and the remainder of ensuite 29 The primary documentation in relation to this and subsequent workmanship complaints are the Celtic Builders drawings12 and the scope of works.13 30 According to the scope of works: • the slope of the floor of the shower recess shall have a gradient between 1:60 and 1:80; and • the slope of the floor of the remainder of the ensuite shall have a gradient (between) 1:80 and 1:100. 31 The applicants rely upon a building defect inspection report of Home Integrity Building Consultants (HIBC).14 This report contains15 photographs of a series of measurements conducted by spirit level to the following effect: 12 Hearing book at pages 301 - 302. 13 Hearing book at pages 341 - 346. 14 Hearing book commencing at page 57. 15 Hearing book at page 61. -- 10 of 33 -- [2026] WASAT 87 Page 11 • the slope of the shower recess floor towards the trench drain is 1:50; and • the slope of the floor of the remainder of the ensuite is variously 1:56 and 1:59. 32 The respondent did not adduce any evidence of the slopes in question, and Mr Alujevic conceded that the slopes of the as built shower recess and ensuite were outside of the limits set by the scope of works. 33 All readings referred to in the HIBC report being outside the required ranges under the scope of works, we find the tiling faulty and unsatisfactory. (b) Non compliant set out at doorway entrance 34 The HIBC report16 contains a photograph of a measurement by spirit level indicating a 1:71 fall in the floor at the entrance to the ensuite, where the floor should be level. We find this part of the tiling faulty and unsatisfactory. (c) Non compliant waterproofing 35 The genesis of this item appears in the following remark in the HIBC report 'The perimeter waterproof flashing has not been brought over the wet area/en-suite door jambs or waterproofed into a water stop at the floor level opening'.17 36 As can be seen from the photographs accompanying the remark, there is no waterstop at the ensuite entrance between the tiling and wooden bedroom floor. The photographs on the preceding page of the report show that the surface of the tiling is higher than the bedroom floor tiling. 37 At the hearing, the parties were at odds over whether the existing floor in the adjoining bedroom was the finished product, Mr Creighton stating that the floor shown in the photographs is the finished product while Mr Alujevic suggested that the applicants were to still install a floor. It is unnecessary for us to determine who is correct, given the need for the tiling in the ensuite to be redone. 38 Mr Alujevic also stated that as is the case in many NDIS modifications, a waterstop is not feasible at the transition between the 16 Hearing book at page 61. 17 Hearing book at page 62. -- 11 of 33 -- [2026] WASAT 87 Page 12 bedroom and the ensuite because of the lipping it creates. We simply note that when the tiling of the ensuite is undertaken, a satisfactory solution to the need for waterproofing at the bedroom/ensuite junction will be required. We will incorporate a cost component for doing so in our reasonable cost determination. The complaint is to this extent allowed. 39 A further complaint of the lack of a reflux valve fitted to shower waste system will be considered under item 12. Item 2B: Plastering defects in ensuite and master bedroom 40 A number of deficiencies is evident in photographs shown in the HIBC report.18 We say 'deficiencies' rather than 'defects', as it is clearly the case, as submitted by Mr Alujevic, that the wall treatment is incomplete, and the walls are not ready for painting. For example, a 'topping compound' (which Mr Alujevic described as a gypsum-based sandable product) needs to be applied and sanded before providing a suitable surface for painting. 41 Mr Creighton suggested that despite the unreadiness of the walls for painting, the respondents' painters had shown an intention to commence painting the walls.19 He went as far as saying: … when this - when the works, we had a completion - finish date for the works, which was March 3, 2025. At that particular point, and on that last day, Buildmark had maybe five to six trades tripping over each other at that handover, project handover day. … They were commencing to paint over that defective work until it was stopped.20 42 When pressed however, Mr Creighton was unable to produce evidence of any paintwork on the walls in question, or otherwise explain why the further preparation work described by Mr Alujevic prior to painting was no longer feasible. 43 We therefore find that this item is not made out. 18 Hearing book at page 73. 19 ts 39 - 43, 11 March 2026. 20 ts 39, 11 March 2026. -- 12 of 33 -- [2026] WASAT 87 Page 13 Item 2C: Missing and non-compliant door furniture in master bedroom and ensuite 44 This item complains of missing architraves and sliding door floor guides and inappropriate door handle. 45 In relation to the door handle, the HIBC report contains a photograph of a pull handle on a sliding door, with the comment: '[r]ecessed pull handle on the inside, moves past the frame, creating a finger trap and potential Safety Hazard'.21 46 The scope of works requirement for this door handle is: Supply and install … recessed rectangular finger pull handles to the new sliding door'.22 47 The pull handle shown in the HIBC photograph complies with this requirement. The safety hazard to which the HIBC report refers will be eliminated when doorstops are installed. This is a normal aspect of the installation of door hardware (to which the scope of works also refers) which, had the respondent's trades been permitted back on site, they would have been expected to perform. 48 Similarly, the remainder of the alleged defects in this item signifies incomplete rather than faulty or unsatisfactory work. 49 We find that this item is not made out. Item 7: Pre-pour floor slab preparation for ensuite bathroom 50 There is a number of different complaints within this item, which derives from the structural engineering report of Australian Building Specialist Pty Ltd (ABS report), supported by a concrete scan report of Concrete Scanning & Locating WA Pty Ltd (CSL report). The absence of both reports' authors prevented any questions being asked, for example, as to the provenance and currency of photographs upon which reliance is placed. 51 We will deal with each of the substantive complaints in turn. 21 Hearing book at page 71. 22 Hearing book at page 343. -- 13 of 33 -- [2026] WASAT 87 Page 14 (a) No mechanical connection to starter bars 52 Mr Creighton relies upon a pre-pour photograph in the ABS report23 and the CSL report24 in support of a submission that 'the slab is just floating'25 without connection to exiting mesh or starter bars. 53 Mr Alujevic denies this claim, drawing our attention to a later photograph26 showing additional mesh going to the back corner and dowls drilled to the perimeter of the which are not present in the ABS report photograph. It is clear that Mr Lalli, the author of the ABS report, did not have access to the later photograph, and the author of the CSL report was unavailable to be asked questions about it. 54 We are satisfied that since it was poured, the concrete slab has possessed the required connection between the slab and starter bars. (b) Pre-pour slab prep mesh cut short 55 The applicants rely upon the following comment in the ABS report: '[a]s reviewed, the pre-pour slab prep mesh appears to have been cut short, and does not cover the entire floor space'.27 56 We consider that the later photograph of the mesh in the hearing book28 demonstrates full mesh cover, contrary to the applicants' assertion. (c) Waterproofing membrane is not dressed up the slab edge and mesh sitting on membrane and not lifted with risers 57 This sub-item repeats a comment in the ABS report.29 58 Regarding the lack of running the waterproof membrane up the wall, we are satisfied that this was not practical for the reasons given by Mr Alujevic, namely, the existence of penetrations in the membrane, and to do so would create a cold joint. 59 Once again, the applicants' claim concerning the reinforcing mesh relies upon the reporting of an absent expert based on dated photographic evidence before the realisation of the final concrete slab. 23 Hearing book at page 297. 24 Hearing book at page 79. 25 ts 66, 11 March 2026. 26 Hearing book at page 282. 27 Hearing book at page 291. 28 Hearing book at page 283. 29 Hearing book at page 291. -- 14 of 33 -- [2026] WASAT 87 Page 15 60 The asserted failure to lift the mesh above the sand base is unsupported by evidence, and contrary to Mr Alujevic's expressed expectation that when the concrete was poured, the tradesmen would have lifted the mesh with hooks to the correct position (or installed bar chairs immediately before the pour). 61 This item, in all respects, is not made out. Item 8: Support for load-bearing wall in master bedroom hallway door entrance inadequate 62 According to the ABS report upon which the applicants rely: • …the doorway in the bedroom was widened to 900mm during alterations. • The load-bearing wall as reviewed has had no brick lintel installed, even though there is a load-bearing steel beam sitting directly above it. • This has caused the load-bearing wall to be non-compliant as per the scope of works.30 63 The applicants rely upon a photograph in the ABS report31 to support the contention of a load-bearing beam directly above the widened doorway. The photograph in question, taken inside the roof cavity, does show a steel beam. Mr Alujevic said that the beam shown is not over the doorway between the master bedroom and hallway. No witness was called by the applicants to respond to this assertion. 64 The matter is put beyond doubt, in our view, by the following written documents: (a) An engineers certification (by Mr Ivan Marenko of Structural Design Engineers Pty Ltd) dated 18 September 2024 of the structural integrity of the doorway in question. The certification was given on the basis that:32 1. No roof beam or roof strut supports over the top of span of the door frame. 2. Use of standard timber door frame… being made from durian or meranti hardwood timber as industry standard. 30 Hearing book at page 292. 31 Hearing book at page 296. 32 Hearing book at page 467. -- 15 of 33 -- [2026] WASAT 87 Page 16 3. 343mm … of brickwork over the top of the door frame. 4. No lintel required … and (b) The same engineer's letter dated 16 February 2023 stating (with reference to the plans and photos of the applicants' building project): The widening of a … 820 door by an extra 100 mm and replacing the door frame with a timber frame does not pose any structural issue. That is - there is no structural impact...33 65 On the above basis, we find that this item is not made out. Item 9: Ensuite set out not wheelchair accessible 66 This item exemplifies the added layer of complexity in considering the applicants' claims due to the involvement of the NDIS agents. 67 The item is supported by the following extract from the ABS report: • It is the opinion of this office that the adjoining wall needs to have 600mm of structure in front of the toilet pan, however, as reviewed, the builder has reduced the wall by 275mm due to the load bearing steel beam location. • This has caused the opening to be non-compliant for disability access as per the scope of works.34 68 The 275 mm referred to is attended by some doubt; the relocation distance is referred to elsewhere as 300 mm. 69 At the hearing, Mr Creighton indicated his concern in relation to the toilet was that the relocation of the doorway resulted in there being inadequate wall space for compliance with the standard applicable to disabled bathrooms, and hence, 'basically providing no fall protection or any handrail protection for the end-user'.35 70 According to Mr Alujevic, the door location as shown in the drawings 'could not have worked' because it would have resulted in the doorway encroaching into the shower. His explanation at the hearing of the process leading to the alternative positioning of the doorway was: 33 Hearing book at page 260 and 468. 34 Hearing book at page 292. 35 ts 92, 11 March 2026. -- 16 of 33 -- [2026] WASAT 87 Page 17 The decision was made on site, and taken by Buildmark, because it could not have worked the way it was drawn. As a remedy to that, when that was highlighted, all parties and stakeholders had a meeting, and a resolution was reached.36 71 The meeting was between Mr Dunn, Ms Colyer, Mr Alujevic and Mr Creighton. Mr Creighton did not agree with the resolution reached by the other participants. 72 The resolution included installing an upgraded toilet with a concealed connection point and changing the grab-rail next to the toilet from an L-rail to a T-rail.37 73 The respondent proceeded with the relocation of the door, which seems to have been a major factor in Mr Creighton refusing entry to the respondent's trades. The respondent did supply the toilet, but no agreement between all parties was ever reached after the parties' disputation commenced. 74 It would appear that Mr Creighton was not prepared to accept the respondent's choice of an alternative toilet, and proposed another, non-disability one. This was the subject of email correspondence between Mr Creighton and Ms Colyer on 21 March 2023, when the latter indicated that if Mr Creighton agreed with the non-disability toilet, she would require from Mr Creighton an acknowledgement that he was preferring not to accept with her recommendation and understand that NDIS would not fund its rectification if a disability toilet was required in the future. 75 Mr Creighton's position at the time regarding the relocation of the door the subject of this complaint item is reflected by his two comments in the same correspondence: …Regrettably, its [sic] the only option, without ripping down the wall and moving the door opening back to the original scope of works set out…38 [and] If these options don't work for shirley [sic] now or in the future, it will be Buildmark covering the cost of changing everything and doing [it on the scope] of works.39 36 ts 106, 11 March 2026. 37 The additional resolution terms are found in a number of versions of a revised work order culminating in Revision D - see hearing book at page 339. 38 Hearing book at 164. 39 Hearing book at 163. -- 17 of 33 -- [2026] WASAT 87 Page 18 76 There is no evidence that Mr Creighton resisted the door relocation, for example, by asking Mr Alujevic not to proceed in accordance with the resolution or refusing entry to the respondent's trades as he did subsequently. 77 Mr Creighton referred us to the following passage from the resolution document, Revision D, which he suggested indicated that the solutions were only temporary: On completion of these works, the property will be inspected by the PM, document the outstanding works, differences to the original scope of works, and photograph the project. At this stage whilst the complex home modifications are not complete, the Bathroom will be functional and allow Shirley to access with assistance.40 78 We cannot accept, in the NDIS context, that any building work performed by the respondent which was not in accordance with the scope of works or the drawings, but which followed identification of an issue with the scope and a resolution between the project manager and the respondent as builder which it executed, can by regarded as 'temporary' in the sense that the builder is to be regarded as not having acquitted that part of its contractual obligations pending a future appraisal of suitability. The builder's work, in these circumstances, must be assessed in light of the resolution's terms. 79 Assessing this item in this way, we find that the respondent performed the work in accordance with the resolution reached. Therefore, this item is not made out. Item 11: Master ensuite doorway entrance inadequate for wheelchair access 80 The applicants rely upon the ABS report where it says: • Upon inspection, the doorway of the water closet was measured to have been reduced by approximately 270 mm. • As the doorway has been reduced, a wheelchair can [not] sufficiently fit through the doorway, and therefore the doorway as inspected is non-compliant.41 40 Hearing book at page 597. 41 Hearing book at page 425. -- 18 of 33 -- [2026] WASAT 87 Page 19 81 Clearly, the premise - that the doorway was reduced by approximately 270 mm - is incorrect. In fact, the correctly sized doorway was moved by 270 mm (or 300 mm). 82 This may explain Mr Creighton's submission at the hearing that 'the doorway now strikes the back wall and bedroom door. Not allowing it to achieve minimum standard 850 millimetres minimum for a wheelchair'.42 Following this submission, the discussion turned to the extent, if any, of a door overhang into the doorway by reason of the internal stopping mechanism for the door. Ultimately, Mr Creighton was unable to take us to any evidence which persuaded us of any outcome other than that asserted in the applicants' own HIBC report, beneath a photograph of the doorway between the bedroom and the ensuite, of a 'clear door opening of 900 mm'.43 This is sufficiently wide for its intended purpose. 83 This item is not made out. Item 12: Ensuite bathroom floor area 84 There are two different complaints within this item: (a) Control floor waste lacking 85 Mr Creighton relies upon a reference in the scope of works at par 2.1 to floor wastes and adjusting the ensuite floor waste grates to suit the new falls in the floor. 86 The drawings show no floor waste in the ensuite external to the shower, which is generally the case where, as here, there is a hobless shower. This is sufficient to dispose of this complaint. 87 We find this item is not made out. (b) Reflux valve lacking 88 The need for a reflux valve is to be determined by a plumber conducting the fit-off taking account of the on-site specifics. No fit off was able to be conducted by the respondent's plumber because of the applicants' denial of access. This item is another item of incomplete, rather than faulty or unsatisfactory, work. 42 ts 116, 11 March 2026. 43 Hearing book at page 66. -- 19 of 33 -- [2026] WASAT 87 Page 20 89 We find this item is not made out. Item 18: Timber doors in bedroom 1 and ensuite 90 Although the applicants complain of incorrect and missing door hardware, we are satisfied that the complaint is limited to incomplete, rather than faulty or unsatisfactory, work. On this basis we find the item is not made out. CC 150/2025 - Remedy 91 In the usual case, in the scenario that one or more complaint items is successful, the focus often turns to which of the available forms of relief available under the BSCRA Act is appropriate. Those alternative forms are an order to remedy, an order to pay and a compensation order.44 In this case, the relationship between the parties having clearly broken down irretrievably making a return by the respondent to site impractical, together with the respondent's expression of its acceptance of the rates applied to any order to pay at a full market rate, indicate that an order to pay based on market rates is appropriate. 92 'Order to pay' is a shorthand description of the type of order described by s 36(1)(b) of the BSCRA Act as follows: 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… State Administrative Tribunal, … considers reasonable and specifies in the order. 93 We referred earlier to the absolutist nature of the applicants' position on remedy, and their failure to adduce evidence permitting allocation of their global estimate to specific items we have upheld. Mr Alujevic proved helpful regarding this evidentiary black hole. He suggested a possible recalling of the matter to enable himself and Senior Sessional Member Affleck to canvass the reasonable cost of remedying specific found defects. Mr Creighton rejected such a possibility. 94 Near the end of the final hearing day, Mr Alujevic referred to the respondent's original quotation forming the basis of the building contract45 and noted that it contains itemised figures which might facilitate a similar itemisation of relevant parts of the applicants' quotation. 44 BSCRA Act s 36(1). 45 Hearing book (Exhibit 1) at page 637. -- 20 of 33 -- [2026] WASAT 87 Page 21 95 On one view, it could be said that the applicants' intransigence means that we do not have any evidence upon which we can arrive at reasonable cost figures for the small number of successful complaint items. However, in the circumstances, we have decided to adopt Mr Alujevic's second suggestion in order to arrive at a figure for the reasonable costs to remedy the building service to the extent of the liability we have found. 96 The Buildmark quotation, as it appears in the hearing book, is reproduced in Annexure A. 97 Senior Sessional Member Affleck has considered, in preparing a notional scope of works and cost schedule, those components of the original quotation relevant to the items for which we have found in favour of the applicants, adjusted as required to allow for what needs to be done to the existing building. The resultant remedial works scope is Annexure B and cost schedule is Annexure C. 98 In accordance with the cost schedule, we allow the sum of $17,853 in respect of the applicants' claims. CC 364/2025 - Liability 99 The applicants claim that the respondent breached the terms of the contract (as well as applicable legislation) by failing to obtain a building permit for the project and failing to obtain home indemnity insurance. The respondent submits that no building permit and no home indemnity insurance were required. We will deal with each issue in turn. Building permit 100 We experienced great difficulty in extracting from Mr Creighton the basis upon which we should find in favour of a requirement for a building permit. He had, prior to the final hearing day, applied for an order to produce under s 35 of the State Administrative Tribunal Act 2004 (WA) directed to, effectively, the Building Services Board (the Board) in respect of disciplinary proceedings against the respondent and Mr Alujevic in respect of the building services the subject of these proceedings which resulted in the respondent being fined $5,000 and Mr Alujevic being fined $2,500. The order to produce was issued and a number of documents produced, which include inter-Departmental correspondence supporting the view that a building permit was required.46 On the final hearing day, Mr Creighton made much of this 46 The produced documents were tendered as Exhibit 4. -- 21 of 33 -- [2026] WASAT 87 Page 22 correspondence, which he submitted should be sufficient for us to reach the same conclusion. 101 The evidence before us does not include any formal statement of the Board's reasons. The closest it comes to this is a media release on the Department of Local Government, Industry Regulation and Safety website under the heading 'Builder fined for failing to properly manage and supervise vital NDIS works for wheelchair access'.47 In this media release, there is reference to 'the [Board] found [the respondent] and its director and nominated supervisor, Marko Alujevic… failed to provide proper management and supervision of a building service as required by WA's builder registration laws'. The release goes on: A Building and Energy inspection later revealed several areas of non-compliance with applicable building standards, including incorrect placement of the toilet, shower taps and light switches; structural issues with the concrete slab and mesh; inadequate doorframe support; and an ensuite door position that prevented installation of toilet handrails. Buildmark had also not obtained a building permit or home indemnity insurance, which were both required for the project.48 102 The release leaves unstated the extent to which, if at all, the respondent's failure to obtain a building permit and home indemnity insurance contributed to the overall outcome (fines against the respondent and Mr Alujevic), as opposed to the building issues which it identifies. The only 'finding' referred to is in terms of a failure to provide proper management and supervision of a building service. 103 There is, clearly, no possibility of an issue estoppel in relation to any matter adverse to the respondent on the basis of the media statement. And there is equally no merit to Mr Creighton's suggestion that we should simply accept statements of opinion about the issues we need to determine of the officers of the body investigating the disciplinary matter on behalf of the Board. 104 We did manage to persuade Mr Creighton that it was incumbent on him to explain the legislative or other underpinnings of any requirement for a building permit here. He commenced by referring to s 9(1) of the HBC Act which provides relevantly: (1) Subject to subsection (5) every contract is conditional upon - 47 Exhibit 2 at page 5. 48 Exhibit 2 at page 5. -- 22 of 33 -- [2026] WASAT 87 Page 23 (a) a building permit being granted, in respect of the home building work included in the contract, within 45 working days from the date of the contract; … 105 We note that s 9(5) states: (5) A condition referred to in a paragraph of subsection (1) does not apply to a contract - (a) to the extent that the subject matter of the condition was completed before the contract was entered into; or (b) where the only work to be performed under the contract is the construction or carrying out of associated work; or (c) for any other prescribed home building work. 106 The meaning of the expression of 'any other prescribed home building work' is in our view most unclear on its face. For example, what is the control group of 'prescribed home building work' with which the 'other' such work is being contrasted? However, when considered in its context of following on from two specific exclusions, we believe the only sensible interpretation the expression can carry is any home building work, apart from the home building work referred to in (a) or (b), which is prescribed by regulation49 to be exempt from the requirement to comply with a condition otherwise applicable. 107 The issue of building permits and the circumstances in which they are required are dealt with in the Building Act 2011 (WA) (Building Act) and the Building Regulations 2012 (WA) (Building Regulations). 108 Section 9 of the Building Act sets out four alternative prerequisites for the performance of building work, two of which are: (a) a building permit is in effect for the building work; or (b) a building permit is not required for the building work under Part 5 or regulations or an order mentioned in Part 5 Division 1 … 109 Regulation 41(3) of the Building Regulations states: A building permit is not required for building work of a kind described in the Table in Schedule 4 clause 2 (Table). 49 Section 3(1) of the HBC Act defines 'prescribed' as 'prescribed by regulations'. -- 23 of 33 -- [2026] WASAT 87 Page 24 110 The contents of the relevant clause of the table referred to are: Item Description of building work for which building permit is not required … 2. Renovation, alteration, improvement, repair or maintenance of a building or incidental structure if the building work — (a) will not adversely affect the structural soundness of the building or incidental structure and does not include - (i) an increase or decrease in the floor area or height of the building or incidental structure; or (ii) underpinning or replacement of footings; or (iii) the removal or alteration of any element of the building or incidental structure that is contributing to the support of any other element of the building or incidental structure; and (b) is done using materials commonly used for the same purpose as the material being replaced; and (c) will not change the use or classification of the building or incidental structure; and (d) will not adversely affect the safety and health of the occupants or other users of the building or incidental structure or of the public; and (e) will not affect the way in which the building or incidental structure complies with each building standard that applies to the building or incidental structure; and (f) is not work of a kind to which section 76, 77, 78 or 79 relates; and (g) is not subject to a protection order, heritage works permit, repair notice or repair order. 111 The aspects of the building project to which Mr Creighton pointed as indicative of a building permit being required are: • a wall was knocked down; • a load-bearing wall was widened; • removal of the wall created a bigger floor area; • the floor slab was penetrated and broken out; and • plumbing and electrical services were interfered with.50 50 ts 30 and 32, 6 May 2026. -- 24 of 33 -- [2026] WASAT 87 Page 25 112 Of all the conditions referred to in cl 2 of the Table, the above aspects of the work do, or might, invoke only condition (a) (the work will not adversely affect the structural soundness of the building) and sub-condition (i) (the work does not include an increase or decrease in the floor area of the building). 113 A part of the wall which previously dissected the ensuite and a walk-in robe was removed. As Mr Alujevic explained, prior to this occurring, the respondent had its engineer, Mr Marenko, assess the structural impact of the work. In his report, Mr Marenko states: We have reviewed the photos and plans regarding the brick wall removal and can confirm the brick wall to be removed is non-load bearing as the roof can support itself. The ceiling joists are running parallel to the wall and span the shorter span of the bathroom width. There is also no beam or strut on top of this wall. Therefore there is no structural impact or issue by removing this wall[.]51 114 No contrary evidence being before us, we accept that the proposed removal of part of the wall had no potential for any adverse effect on the structural soundness of the building. 115 We have already dismissed the potential for any similar effect in the case of the widening of the bedroom/hallway door opening, based upon Mr Marenko's certification that it involved no structural impact. Again, in the absence of any evidence to the contrary was accept that the widening of the doorway had no potential for any adverse effect on the structural soundness of the building. 116 Although it is true that the floor area now forming part of the ensuite has been increased to the extent of the footprint of the removed section of wall, this is not, in our view, the sort of increase with which the expression 'an increase… in the floor area' in the Table is concerned. The floor area referred to in sub-condition (i) is of the building, not a particular room or area. Hence, unless the works in question result in an increase the footprint of the building, the sub-condition is not invoked. These works have not increased the footprint of the building. 117 Although penetration of the slab might be regarded as structural, that is not the same as 'affecting the structural soundness of the building'. Mr Creighton did not explain how this expression applies to any slab 51 Hearing book at page 260. -- 25 of 33 -- [2026] WASAT 87 Page 26 works, and we do not understand how it could. The same comment applies to any interference with plumbing and electrical services. 118 For the above reasons, we do not consider that the builder was required to obtain a building permit for the project. Home indemnity insurance 119 The applicants submit that the respondent was obliged to take out home indemnity insurance for the project. They rely upon s 25C(1) of the HBC Act, which provides: (1) A builder must not perform residential building work to which this Division applies unless - (a) a policy of insurance that complies with this Division is in force in relation to the residential building work; or (b) corresponding cover is provided by an approved fund in relation to the residential building work. Penalty: $10 000. 120 This provision relates only to building work to which the Div (Pt 3A Div 2 of the HBC Act) applies. Among other examples, s 25B(4A) states that the Division does not apply to residential work if a building permit is not required for the work. 121 In the circumstances, we conclude that the respondent was not required to take out a home indemnity insurance policy. CC 151/2025 Unpaid invoices 122 The respondent seeks payment by the applicant of a tax invoice dated 27 March 202352 in the amount of $12,924.26 (the first invoice), described as 'Works completed' and 'Final completion payment, as per contract'. It also seeks payment of a tax invoice dated 5 May 202653 in the amount of $6,489.49 (the second invoice) for interest on late payment of the earlier invoice. 123 Based upon the applicants' written submissions, there are two grounds for opposing the respondent's financial claims: 52 Hearing book at page 526. 53 In evidence as Exhibit 5. -- 26 of 33 -- [2026] WASAT 87 Page 27 (a) the respondent's failure to obtain a building permit and home indemnity insurance prevents the respondent from lawfully demanding any payment under the contract;54 and (b) some of the works for which payment is claimed are incomplete or defective. 124 In his oral submissions, Mr Creighton said that he was resting his defence of the respondent's claims on what he said was the unlawful nature of the works, based on there being no building permit nor home indemnity insurance. 125 Notably, the applicants do not argue, in the case of the first invoice, that the work to which the invoice referred was not performed, nor that the interest claimed was inconsistent with the contract. 126 Mr Alujevic explained the circumstances of the issuing of the first invoice in terms of, on it becoming apparent that Mr Creighton was not allowing the respondent to finish the works, the respondent invoiced him on 27 March 2023 for the works done and unbilled for. Those works included the vanity unit, a door, and tiling, evidence of which appears in the HIBC report. As we have said, the fact of the works being performed is not challenged. 127 Mr Alujevic also noted a number of deductions in the first invoice, reflecting omissions made for things which had not been completed (which, he said, included items which were partially complete). He referred specifically to a deduction of $2,272.72 for 'gap to cover shortfall from Buildmark quote to current market rates for outstanding works', which was a credit to cover increased market prices for the work still to be performed.55 128 Referring to the applicants' expressed sole ground in opposition, the prohibition of a payment demand where no building permit and/or home indemnity insurance have been obtained does not apply in this case for reasons we have given. This ground therefore fails. 129 As for the ground in the applicants' written submission relating to incomplete or defective works, to the extent that the applicants have succeeded in their claims under the BSCRA Act, the respondents are liable to either remedy the works or pay the reasonable cost of 54 We note that prior to home indemnity insurance being obtained where required, s 25C(1) of the HBC Act precludes a builder making any demand for payment. 55 Hearing book at page 167. -- 27 of 33 -- [2026] WASAT 87 Page 28 remediation (in this case we have determined the latter). The effect will be to place the applicants in the position they would have been had the respondent complied with its obligations. There is no basis for further penalising the respondent by refusing their otherwise justified claim to payment in accordance with the building contract. 130 For these reasons, the respondents' claim the subject of the first invoice for $12,924.26 is allowed. The identical defence being raised against the claim the subject of the second invoice for $6,489.49 in interest under the contract, we also allow this claim. Breach of contract by preventing access to site 131 The remedy sought by the respondent was that the applicants allow unobstructed access to site for the respondent to complete outstanding works. This possibility has now been overtaken by events. On this basis, we decline to make any order on this claim. Orders The Tribunal shall issue orders in the following terms (the terms 'applicant/s' and 'respondent/s' here being appropriate according to each respective proceeding): CC 150 of 2025 The Tribunal orders: 1. Pursuant to s 38 and s 36(1)(b) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), in respect of complaint item 2A, by 14 August 2026 the respondent shall pay the applicants the sum of $17,853. 2. Pursuant to s 38 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), in respect of complaint items 7, 8, 9, 10, 11, 12 and 18, the Tribunal declines to make an order. 3. Pursuant to s 49(1) of the State Administrative Tribunal Act 2004 (WA), in respect of complaint items 5A, 5B, 5C, 6, 13 - 17 and 19, the applicants have leave to withdraw the complaints and they are withdrawn. -- 28 of 33 -- [2026] WASAT 87 Page 29 CC 364 of 2025 The Tribunal orders: 1. Pursuant to s 43 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), in respect of complaint items 1 and 2, the Tribunal declines to make an order. CC 151 of 2025 The Tribunal orders: 1. Pursuant to s 43 and s 41(2)(b) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), in respect of complaint item 1, by 14 August 2026 the respondents shall pay the applicant the sum of $19,413.75. 2. Pursuant to s 43 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), in respect of complaint item 2, the Tribunal declines to make an order. -- 29 of 33 -- [2026] WASAT 87 Page 30 Annexure A -- 30 of 33 -- [2026] WASAT 87 Page 31 Annexure B -- 31 of 33 -- [2026] WASAT 87 Page 32 Annexure C -- 32 of 33 -- [2026] WASAT 87 Page 33 I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal. MR T Carey, MEMBER 24 JULY 2026 -- 33 of 33 --