AGC Roof Maintenance Pty Limited v The Owners Corporation of Strata Plan 7704 [2025] NSWCATCD 116;

1. Section 48K of the Home Building Act 1989 (NSW) (HB Act) gives the Tribunal jurisdiction to hear and determine a building claim brought before it in accordance with Part 3A of the Act. Building claim is defined in s48 to mean a claim for (relevantly for present purposes) the payment of a specified sum of money that arises from a supply of building goods or services. Building goods or services is defined in the same section to mean goods or services supplied for or in connection with the carrying out of residential building works or specialist work being goods or services (again relevantly) supplied by the person who contracts to do, or otherwise does, that work.
2. From the documents adduced and the parties submissions I am satisfied that the applicant's claim is a building claim and that the Tribunal has jurisdiction to hear and determine it.

1. The applicant relies upon documents lodged with the Tribunal on 23 June 2025 (AD) as well as evidence given at the hearing by Mr Osborn. What follows is a summary of those of the applicant's documents that are considered materially relevant to the Application. The documents are paginated.
2. Page 3 is an email of the Chairperson of the Owner's Corporation, Mr Lewis, to a person then employed by the applicant seeking a quotation following from a discussion that is said to have occurred that morning. The date of the email is 14 August 2024.
3. Page 4 is a Quotation Report of the applicant dated 14 August 2024. It is a quotation number #48977EJ addressed to the Owner's Corporation. It refers to a recent site attendance and by its terms is a quotation "on the issue pertaining to lots 12 and 17 adjoining wall". It also refers to identification of "other items that required rectification on the roof". The total quoted figure is $30,989.16. Page 5 is a Client Work Order dated 12 November 2024 issued to AGC. It is stated as being issued on behalf of the respondent and informs that the Owner's Corporation was to be the entity billed. The description of work is, relevantly, "as per quotation #84977EJ dated 14 August 2024 for $30,989.16 including gst." It specifically seeks that the applicant ". . . . . complete the roof repairs for the complex as noted in the quotation".
4. Extracts of what the applicant says formed the executed contract between the parties commence at page 6 of the AD. The contract price is recorded as the abovementioned figure and Mr Lewis has signed adjacent to "owner's signature". There is also a signature of a Cheryl Dewhurst adjacent to the same words. A Horace Peterson has signed adjacent to "contractor's signature". Mr Lewis and Ms Dewhurst have also both signed under a heading "Acknowledgement of Owners" whereby they acknowledge having been given a copy of the Consumer Building Guide and that they have read and understood it. Clause 12 of the contract is reproduced in the AD. That states that the owner must pay the contract price by progress payments within five (5) business days of the completion of the stages of work nominated in the schedule of progress payments. Clause 14 is also reproduced. That states that the owner must pay the contractor the amount of a written claim for progress payment within five (5) business days of receipt unless the owner notifies the contractor in writing within that five (5) business day period the owner disagrees that the contractor is entitled to be paid the progress claim or other amount due. It provides that the owners notification must be in writing and set out the reasons for the disagreement and that any dispute had to be resolved in accordance with dispute resolution procedures set out in Clause 27.
5. Clause 27, headed "Disputes", provides that if either the owner or the contractor considered that a dispute has arisen the party asserting the dispute is required to give the other party written notice of the terms of the dispute. It then sets out a process for resolving such disputes then says - relevantly for present purposes:

"Even if a dispute has arisen the parties must, unless acting in accordance with an express provision of this contract, continue to perform their obligations under the contract so that the work is completed satisfactorily within the agreed time."

1. Pages 7 and 8 of AD are tax invoices of AGC OF 2 December 2024 and 16 January 2025 that have been paid by the respondent. Pages 9 to 19 are photographs of the Premises and the roof of the Premises.
2. Page 2 is the applicants tax invoice #84977EJ dated 27 February 2025 addressed to the respondent in the amount of $17,044.03. It is this tax invoice that the applicant contends is due and owing to it and which the respondent has not paid.
3. Pages 21 to 27 of the AD are not, in my view, materially relevant in that they are a series of email communications between the parties where different proposals are put for the potential resolution of issues that had emerged between the parties. The email communications commence with an email of the applicant's Mr Osborn of 3 April 2025.
4. Mr Osborn informed the hearing that although there were meetings and proposals for resolution as set out in the emails there was no final concluded agreement hence the commencement of the Tribunal proceedings.
5. When giving oral evidence at the hearing the applicant's Mr Osborn said that although the assets of the applicant company had been sold to a company called Tomcat on 24 March 2025 the applicant company still existed and the debt was owed to the applicant.
6. He was asked about the Home Building Act certificate and gave evidence of it having been received from the insurer. He said that AGC had not been asked by the respondent for a copy of the certificate.

1. The respondent's documents (RD) were lodged with the Tribunal on 14 July 2025.
2. Pages 5 to 9 of the RD is the respondent's outline of the sequence of events. Pages 10 to 12 set out the respondent's "Reasons in summary why SP7704 have not fully paid AGC". Relevantly for the purposes of the issues requiring the Tribunal's determination, the respondent's sequence of events include at [1] on page 5 that the applicant was chosen by the respondent to conduct ". . . . . maintenance and repairs required." The Owner's Corporation says at [4] that the quotation provided by the applicant was discussed with the applicant's Mr Peterson on 14 August 2024 and that it received a revised quotation on 2 September 2024.
3. At [11] on page 6 the Owner's Corporation says that Mr Lewis, as its Chairperson, signed the contract with AGC; further, that an invoice of $3,098.92 was paid on 21 December 2024. At [14] the Owner's Corporation contends that a truck delivering materials, as arranged by the applicant, damaged a pedestrian crossing on 14 January 2025. Page 6 of the RD sets out occasions where it says the applicant or its representatives were required to attend the Premises but did not do so; further, that on 3 February 2025 subcontractors of the applicant had erected scaffolding to an adjoining building.
4. Paragraph [19] to [29] are not in my view materially relevant to determination of the Application; those paragraphs recording issues that the respondent had with the manner in which the applicant was performing works pursuant to the contract. They raise such issues as occasions where the applicant had - so the respondent contends - failed to reply to text messages or telephone calls. The respondent says at [30] that on 25 March 2025 it advised [the applicant] that water was pooling in the gutters, that "all down pipes installed by [the applicant]t were leaking, that there was a missing down pipe and that [the applicant] had not attended to a clean up."
5. Paragraphs [31] to [39] document meetings and communications between the applicant and the respondent in an effort at resolving the dispute which had by then existed between the parties.
6. What follows is a summary of those of the respondent's documents that I consider materially relevant to the determination of the Application.
7. Page 17 is an email of Mr Lewis to AGC saying that the author had "been advised" that the applicant's scaffolder had attended the wrong property that morning and that, once that was realised, the result was a delay with the start date and potential issues with the neighbouring property. The email enquires as to why that occurred. It also requests that the applicant take and provide daily photos of works completed as well as a daily "report/email" as to what work had occurred and where.
8. Page 19 is described as "AGC Roof Maintenance Pty Limited Final Report". At [29] of the RD is a document that was emailed to BCS by AGC showing "before" and "after" pictures of the roof of the Premises; the "after" photos showing the work performed by the applicant.
9. The document at page 27 of RD is an email of the applicant to the respondent summarising discussions that had taken place the previous day and setting out a proposal to resolve the dispute that had by then existed between the parties.
10. The document at pages 29 to 36 of RD is described as "Roof Report" prepared by ANZ Roofing, dated 23 May 2025 and is addressed to the Owner's Corporation. It is described on page 8 of the RD as a ". . . . . Quote from ANZ Roofing regarding costs to repair the issues SP7704 have after AGC works".
11. There is no other description in the evidence as to this document. It refers at page 29 to its purpose being ". . . . . to identify issues related to recent works . . . . ." It does not identify with precision what "recent works" are being referred to nor the identity of the person or entity that is alleged to have performed such works. The document then sets out under "General Observations" what are described as "leak issues" outside garages 1, 2, 6, 9/10, 14, and 17, to a leak issue "corner between first and second entry" and another "corner to rear of second entry". In discussing each "leak issue" the author (who is not identified) refers to "the horizontal section" of a rainwater head and the suggestion that as the horizontal head lacked a support bracket that might compromise its stability. The author also refers to a leak at the junction between a rainwater head and the "horizontal offset" which was "contributing to moisture ingress and dampness". It then sets out a recommendation. Similar comments are made in relation to other leak issues referred to on pages 30 and 31 of the RD. Other comments made by the author of the report are that gutters have been fixed using nails many of which have loosened from the facia boards and that that ". . . . . contributes to water overflow during rainfall".
12. In respect of each "leak issue" the author sets out a recommendation for rectification. There is a comment at the conclusion of the report that the existing guttering system was aged and nearing the end of its service life. A full replacement of the existing guttering was strongly recommended. Another comment on page 35 of the AD was that the report was based on a visual inspection only; further, that the scope of the report was to identify major defects and to form an opinion of the general condition of the building at the time of inspection. In the same section, the author states that the report did not include cost estimates for repairs or rectification works.
13. It is not a report that is stated to comply with the Tribunal's procedural guidelines for expert evidence.
14. As indicated earlier pages 10 to 12 of RD are headed "Reasons in summary why SP7704 have not fully paid AGC". There are three headings; firstly, "poor product management and lack of communication". Secondly, "observed work methods performed by AGC is not fit for purpose" and thirdly, "resolving the matter to ensure a fit for purpose roofing solution has been obtained for SP7704". Dealing with the third heading first, the respondent there sets out its position following the work being carried out by the applicant and the discussions that took place between the applicant and the respondent to resolve the dispute.
15. The issues raised under "poor project management and lack of communication" are:

(a) That contractors/trades coming the Premises were to contact the on site representative Mr Lewis before attending. The document says that that was a "clearly stated requirement". The respondent says that that did not occur.

(b) The respondent contends "deficient project progress reporting to clearly identify what work had been done". It says that it required clearly identified before and after photos.

(c) The respondent also raises "continuous staff turnover". It says that a Mr Gatley performed the original assessment and that a Mr Peterson provided a revised quotation. It then says that Mr Gatley had left the company and that a Bianca Moscato was the advised Project Manager but that she did not attend the site.

1. So far as "observed work methods performed by AGC is not fit for purpose" the respondent raises the fact that scaffolding was only eventually erected on the building after it had had almost fully been installed at a neighbouring property, and that a scissor lift brought to the site could not be stabilised.
2. The respondent also says that "the force placed on the existing guttering to secure and remove new down pipes and guttering on ladders could not possibly be performed without disrupting the alignment and functionality of the gutters . . . . . ". The respondent also says "new leaks have been identified by building owners and the most likely cause of these new leaks has most likely been caused by AGC deficient work methods . . . . .".
3. During the course of the Tribunal hearing the respondent's Mr Lewis conceded that the respondent had accepted the applicant's quotation and entered into the contract.

1. I accept the evidence of the applicant including the oral evidence of Mr Osborn. The works the subject of the outstanding invoice have, I find, been undertaken. The applicant was entitled, subsequent to those works being carried out to have the invoice paid by the contracting party, namely the respondent. The respondent has not made payment.
2. None of the reasons advanced at pages 10-12 of the RD provide the respondent with a legal entitlement to withhold payment.
3. What the respondent contends to have been a "clearly stated requirement for all contractors/trades to make contact with Mr Lewis" does not form part of the quotation or agreement. Nor within the agreement is the asserted requirement of taking daily photographs and reports.
4. The respondent does not point to any of the complained of "work methods" causing loss or damage or otherwise giving the respondent an entitlement under the contract to refuse payment. Nor does the respondent assert the manner or respects in which it says that any of the "poor project management and lack of communication" issues have caused it loss or damage or otherwise entitle it to refuse to make payment of the agreed contract sum.
5. The Roof Report commencing at page 20 of RD does not, even if the findings by the author of that report are accepted, give the respondent a legal entitlement to withhold payment. The report is not an expert report tendered pursuant to the NCAT guidelines. There is no reference to the author abiding by the Code of Conduct. Although there is discussion in the report concerning ". . . . . issues related to recent works . . . . ." the report does not identify the applicant as the entity performing the works nor does the report reference the works that the applicant agreed to perform pursuant to its quotation and the subsequent agreement entered into. Further, the inspection that led to the report appears to have taken place some two months after the applicant completed its works at the Premises. The Roof Report, additionally, does not by its terms clearly contend negligent or defective work. As an example the author says that the horizontal sections lacked a support bracket and that "may" contribute to instability and improper drainage.
6. I find that the applicant and the respondent entered into a contract, extracts of which commence at page 6 of AD. It is a contract that was entered into after submission by the applicant of a quotation and the provision to the applicant by the respondent of a 12 November 2024 work order in which the quotation was specifically referenced. The respondent does not put in evidence any different or varied form of agreement. The provisions of the agreement as adduced by the applicant require the respondent to make payment of progress payments within five (5) business days of the completion of the stage of the work nominated in the schedule of the progress payments. The applicant submitted progress payments claims pursuant to the contract and those payments have not been made. There is no contractual provision advanced by the respondent giving it a legal entitlement to refuse payment.
7. All of the reasons advanced by the Owner's Corporation at pages 10 to 12 of RD are rejected.

(1) The respondent is to pay the applicant $17,044.33 within twenty-one (21) days.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.