Builder ordered to fix mortar, mould and render, but owner’s delay damages claim dismissed (SAT, 2026)

What happened

In December 2020 the owner signed a fixed-price contract of $276,354 with WA Country Builders Pty Ltd to build a house in the City of Busselton area. The contract said the work was to be finished within 350 working days of starting. The tribunal accepted the owner's evidence that work started on 14 June 2021. Both sides also appeared to accept that the builder had validly extended the time for completion by 119 working days.

A document called a Record of Practical Completion was signed by both parties on 20 April 2023. 'Practical completion' is the point at which a building is treated as finished, apart from minor items that do not stop it being used. On 8 May 2023 the owner emailed to try to withdraw his signature. The builder said it lodged a notice of completion with the City of Busselton around 9 May 2023, but the tribunal was not satisfied the evidence proved this. The owner then disputed the final invoice, saying the build was not finished. The builder agreed to hold the invoice until the remaining work was done.

Through mid to late 2023 the parties argued by email about outstanding repairs, how the completion date should be calculated, whether delay damages were owed and how much the owner still had to pay. On 5 October 2023 the builder offered to accept payment in two instalments and said the owner could collect the keys once the first was paid. The owner made a final payment on 6 October 2023, without admitting he owed it, and collected the keys that day. Because of concerns about dampness and mould, he did not move in until 31 December 2025.

The owner made complaints to the Building Commissioner, who referred ten complaint items to the tribunal. During the hearing, after hearing the expert evidence, the owner withdrew three items. That left seven items for decision.

What each side wanted

The owner said the builder's work was faulty in several ways: missing, stained and eroding mortar on the outside brickwork; a beam tie-down in the garage that was not properly welded; excessive moisture throughout the house; mould on the garage brickwork and outside bricks; unsightly staining and bleach marks on the brickwork; and poorly applied render on the back wall of an outdoor kitchen recess. He also claimed liquidated damages, which are a fixed amount set by a contract that the builder pays for each day it is late, plus his costs of owning the property while he waited. He argued the house never reached practical completion, but limited his claim to the period up to 31 December 2025, when he moved in. The builder admitted the tie-down fault and accepted some mortar faults. It agreed the garage was damp but said a garage is not meant to be as dry as a house and that normal use and airflow would reduce the moisture. It did not deny that there was mould. It argued practical completion was reached on 30 March 2023, 20 April 2023 or around 9 May 2023, and so no delay damages were owed.

What the tribunal decided

The tribunal ordered WA Country Builders Pty Ltd to complete four sets of repairs by 14 October 2026:

(a) Mortar: fix the face brickwork mortar joints so they are fully filled without voids, in line with AS3700-2018, Part 12.4.2. Patching is to match nearby brickwork as closely as practicable, joints are to have a consistent finish, and no mortar stains are to be visible from 1.5 metres. Holes the owner drilled to take samples were excluded. (b) Tie-down: fix the unsecured steel beam in the garage in line with the engineering plans. (c) Mould: remove the mould from the internal brick surfaces of the garage. (d) Outdoor kitchen: fix the render on the wall of the barbeque recess so that it achieves an acceptable appearance. The work must be done in a proper and proficient manner, including protecting and making good all affected surfaces.

All other complaints, including the moisture, brick staining and damages claims, were dismissed. No money was ordered to be paid. Each party may apply for its legal costs by filing a detailed schedule and written submissions by 4 August 2026. The other party may respond by 25 August 2026. Any costs application will then be decided on the documents alone.

Why the tribunal decided it that way

The tribunal explained that the Building Services (Complaint Resolution and Administration) Act 2011 (WA) allows two kinds of complaint. A 'building service complaint' is about faulty work. Under s 38(1), the tribunal must order repairs if the work was not done in a proper and proficient manner, or is faulty or unsatisfactory. A 'home building work contract complaint' is about breaches of the contract. Under s 43(1) and s 41, the tribunal may order payment of amounts due under the contract or compensation if it considers this justified. Six of the remaining items were building service complaints and the damages claim was a contract complaint.

On the mortar, the Building Commissioner had proposed repairs, which the builder appeared to accept, and both engineers agreed some mortar was missing or inadequate. There was no evidence of erosion, and chemical testing showed the mortar mix was appropriate. The builder admitted the tie-down fault. On the moisture claim, the tribunal was not satisfied there was elevated moisture inside the house. It found problems with some of the readings, and there were no signs of rising damp or stormwater damage. The garage was damp, but a garage is a non-habitable structure and single-skin brick walls are expected to let some outside moisture through. The house had also stood empty with no normal airflow. On the brick staining, the evidence did not show what caused the discolouration, so the tribunal could not find the builder at fault. On the render, the parties had agreed it was to improve the look of the wall, and it had not been applied in a way that achieved this.

On the mould, the tribunal found the builder kept possession and control of the house until it handed over the keys on 6 October 2023. That made it responsible for the condition of the house, including cleaning the gutters, until then. The tribunal said it is not satisfactory to hand over a house with mould growing on the internal garage walls. The builder had not argued that the owner failed to take reasonable steps to limit the problem, so that could not be considered. There was not enough evidence of mould on the outside bricks.

On delay damages, the tribunal calculated the contract deadline, including the 119-day extension, as 28 April 2023. Under clause 12.6 of the contract, practical completion occurs at the earliest of three events: the work is finished apart from defects that do not stop it being used; the owner takes possession without consent; or the builder hands over the keys. The tribunal rejected 30 March 2023 because no one signed the document on that day. It found practical completion was reached on 20 April 2023, when both parties signed. Nothing in the signed record or the final inspection report suggested the house was unfit to live in, and neither mentioned mould. The builder's later repairs were work it had agreed to do to settle the owner's concerns, not a delay to completion. Because the house was finished in time, no liquidated damages were payable. Choosing to wait until repairs were done before moving in did not make the builder liable for the owner's costs.

What this means if you are in a similar position

This decision shows that the tribunal looks at each defect separately and needs evidence linking the problem to the builder's work. If you are in a similar position, you may find that defects the builder admits, or that experts agree on, are more likely to lead to repair orders. Claims about the cause of a problem, such as moisture or staining, can fail if the evidence does not show why it happened. Here, the tribunal gave less weight to reports whose authors were not called to give evidence, and to tests where it was unclear how or where samples were taken.

The decision also shows how a contract's own definition of practical completion can decide a delay claim. In this case, signing a Record of Practical Completion counted heavily, even though the owner later tried to withdraw his signature and the builder kept doing repairs afterwards. The decision also shows that who controls the site matters. The builder was held responsible for the house's condition until it handed over the keys.

In general, people in a building dispute in Western Australia usually start by setting out the defects in a written notice to the builder. If that does not resolve things, the next step is usually a complaint to the Building Commissioner, who can refer it to the tribunal.

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

Source: Poole and Wa Country Builders Pty Ltd (Acn 105 402 140) [2026] WASAT 103 (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.