Balconies built without the 150mm cyclone step down ruled faulty; builder must rebuild them (SAT, 2026)

What happened

The owner engaged a registered builder to build a two-storey house at Exmouth to lock-up stage. She was responsible for finishing the rest of the work, including having the balconies tiled. Over several years she made three separate building service complaints to the Building Commissioner about the same house, and each was referred on to the Tribunal. A building service complaint is a complaint that building work was not done in a proper and proficient way, or is faulty or unsatisfactory.

The first complaint, lodged in March 2021, covered twelve items. Most were settled along the way, including at a Tribunal mediation in November 2022. By the time of the final hearing in June 2026, only the east and west balconies were still in dispute in that first case: that the floors were not level, sloped towards the house, and had no waterproofing membrane.

The second complaint, lodged in July 2024, came out of a joint statement signed by the parties' experts in February 2024. At a Tribunal conferral the experts agreed the balconies had an insufficient step down, that the tiles, screed, cement sheet substrate and supporting joists would have to come out, and that the balconies would have to be re-engineered. The owner's building expert then investigated further and reported back that, because the property is in a Cyclonic D wind zone, Appendix A of Australian Standard 4654.2-2012 required a 150 mm step down from the internal floor level. The balconies as built had essentially none: the front balcony tiles finished flush with the internal floor, and the rear balcony tiles sat higher than it.

The third complaint, lodged in June 2025, was about the consequences. Tropical Cyclone Sean passed through Exmouth in January 2025 and the owner said water got into the house, damaging a garage ceiling, a bedroom, the entry ceiling, a mattress, flooring and skirting boards. She also pointed to a rainfall event in April 2025 that she said was caused by missing compriband sealing tape under the south apron flashing, for which she paid contractors $1,587.82, and to further damage during Cyclone Narelle in March 2026.

What each side wanted

The owner no longer asked for money to fix the balconies. Instead she asked the Tribunal to order the builder to do the remedial work himself, arguing that rebuilding the balconies to achieve the 150 mm step down would also fix everything complained about in the earlier case, because the tiles and screed would have to come out anyway. Separately, in the third case, she claimed $78,647.85 in total: $1,587.82 for the April repairs, $10,968.38 for repairs after Cyclone Sean (less what her insurer paid for a mattress), and $39,091.65 for repairs after Cyclone Narelle plus $27,000 in lost rent. The builder argued the joint expert statement could only be used in the first case, because it was prepared before the other two cases existed; he gave evidence that the owner had asked him not to include a step down; and he relied on a short report from the engineer whose firm had prepared the engineering drawings for the job, about dropping the balconies by 90 mm or adjusting the fall.

What the tribunal decided

The Tribunal recorded the result as: the applications in CC 1698 of 2021 and CC 514 of 2024 were partly successful, and the application in CC 410 of 2025 was dismissed.

On the balconies, the Tribunal found they were required to have a 150 mm step down for a Cyclonic D zone, that as built they had little to none, that this made them faulty and unsatisfactory, that no drainage solution could fix it, and that the only option was to remove the balconies, including all screed, tiles and supporting joists, re-engineer them to achieve the 150 mm step down, and re-install them. It said the orders would include the usual requirements that the work be done in a proper and proficient manner, that adjacent surfaces be protected and made good, and that affected areas be repainted in as close a colour match as practicable. Because the builder had also failed to build the balconies so that a compliant tiled covering could be laid, the Tribunal said the order should require the builder, at his own expense, to install waterproofing, screed and tiles of comparable style and quality to the existing tiles.

On the money, the Tribunal found there was no cogent evidence that the faulty balconies or the alleged missing compriband tape had caused any identifiable water ingress or any identifiable damage, as opposed to damage from other causes. It also found there was no evidence to support extending the repair order to cover any earlier damage to the house.

Why the tribunal decided it that way

The Tribunal worked through three questions that apply to any building service complaint under the Building Services (Complaint Resolution and Administration) Act 2011 (WA): was a regulated building service carried out, was the work faulty or unsatisfactory or otherwise not proper and proficient, and if so what building remedy order should be made. The first was not in dispute: the builder was a registered building service provider and the contract was a home building work contract under the Home Building Contracts Act 1991 (WA). Under section 38, if the Tribunal is satisfied the work is faulty or unsatisfactory it may make a building remedy order; section 36 lets that order require the builder to fix the work, to pay the reasonable cost of fixing it, or to pay compensation.

Much of the hearing turned on the joint expert statement. Rule 39B of the State Administrative Tribunal Rules 2004 (WA) says the Tribunal will admit a joint statement into evidence, and that once admitted no party may lead evidence inconsistent with what the experts agreed without the Tribunal's leave. The builder argued the statement could only be used in the first case. The Tribunal rejected that: earlier orders had directed that all three cases be heard together with the evidence in each being evidence in the others, those orders were never appealed, the statement was admitted at the start of the hearing without objection, and the builder had been legally represented throughout and could have raised the point long before. Raising it in submissions lodged on the public holiday before the hearing was described as inconsistent with the Tribunal's main objectives in section 9 of the State Administrative Tribunal Act 2004 (WA).

The builder then chose not to call his own building expert, who had signed that joint statement. The Tribunal gave that expert's later report no weight because he was not called, so the agreed matters in the joint statement stood unchallenged. The engineer the builder did call was not treated as an impartial expert, because it was his own firm, and he personally, who had done the engineering for the job; his report also only addressed a 90 mm drop, which would not have met the 150 mm requirement anyway. The Tribunal preferred the owner's evidence that she never asked for the step down to be left out, and added that even if such a conversation had happened, it could not remove the builder's obligation to build in the step down.

The compensation claim failed on causation, not on sympathy. Following an earlier decision, the Tribunal said compensation is the amount that puts the owner in the position she would have been in had the work been done correctly, plus any loss flowing from the faulty work. The obstacle was that nothing directly linked the faulty balconies, or the alleged missing sealing tape, to any identifiable part of the water that got in or any identifiable part of the damage, rather than to other causes. The published text stops part way through this section of the reasoning, so the final wording of the orders, including any deadline for the work, is not set out in the material available.

What this means if you are in a similar position

If you are in a similar position, this decision shows how much weight the Tribunal places on an agreed statement signed by the parties' experts. Once experts confer and sign a joint statement, the rules stop either side leading evidence that contradicts what they agreed without permission, and a party who decides not to call the expert who signed it can find that expert's later reports carry no weight. It also shows that a builder's duty to meet a standard, such as a step down required in a cyclone zone, is not displaced by a conversation with the owner.

It also shows the gap between proving defective work and proving loss. Establishing that the balconies were built wrong was enough for an order that they be rebuilt. It was not enough to recover repair bills and lost rent, because the Tribunal needed evidence tying the specific defect to the specific water ingress and the specific damage, and separating that from other possible causes during a cyclone. Expert evidence on causation, not just on the defect, is what that part of a claim rests on.

In disputes of this kind most people start by putting the problem to the builder in writing, with a dated list of each defect and what is asked for, before any complaint to the state building regulator or any tribunal application. That written record is usually what later becomes the complaint items and the evidence.

How to apply: our step-by-step guide to a SAT application. More decisions: SAT cases and builders and building defects.

Source: Klomp and Curtis [2026] WASAT 126 (read the full decision). This summary was prepared from the published decision for general information. It is not legal advice, and the tribunal’s own reasons are the authoritative record.