AJ Gouros Investments Pty Ltd trading as Adelaide Concrete Polishing & Grinding Pty Ltd v Pongraz

The Tribunal's Reasoning for the Decision

1. The statutory warranties in s 18B of the Act, which include an implied warranty that residential building work is to be performed with due care and skill, are implied in every contract to do residential building work by a person required to hold a contractor licence. If the work is performed without due care and skill, the party to the contract can sue for breach of the warranty implied.
2. The Tribunal correctly held that section 18D (1A) of the Act extends the operation of the s 18B warranties to a "non-contracting owner". The words of s 18D(1A) are: (1A) A person who is a non-contracting owner in relation to a contract to do residential building work on land is entitled (and is taken to have always been entitled) to the same rights as those that a party to the contract has in respect of a statutory warranty.
3. The Tribunal followed the analysis of the operation of s 18D(1A) of the Act by the Appeal Panel in EK Constructions Pty Ltd v Zhu [2017] NSWCATAP 102 (EK Constructions) in deciding that the Owners were entitled to enforce the s 18B warranties against AJ Gouros: at [9] of the Tribunal's reasons.
4. EK Constructions involved an application to the Tribunal to recover the cost of defective residential building works. The contractor there, EK Constructions Pty Ltd, argued that it did not have a contract with the applicant, Mr Zhu, but rather with Mr Zhu's company, "Jim Yin Facility Services". The Appeal Panel noted that the Tribunal made no specific finding as to either the identity of the parties to the contract or the basis for any liability on the part of the contractor, and that this was an error of law by the Tribunal.
5. The Appeal Panel proceeded to deal with the identity of the contracting parties by way of a new hearing (at [10]). It held that EK Constructions Pty Ltd was correct in submitting that it did not have a contract with Mr Zhu: at [17]. The Appeal Panel then considered whether Mr Zhu was nevertheless entitled to enforce the statutory warranties in s 18B of the Act against the contractor because of the "non-contracting owner" provisions in s 18D(1A) of the Act. On this issue, the Appeal Panel said: [19] A non-contracting owner, "is entitled to the same rights as those that a party to the contract has in respect of a statutory warranty": Home Building Act, s 18D(1A). The statutory warranty has not previously been enforced by Jim Yin Facility Services so the exception in s 18D(2) does not apply. [20] Even though Mr Zhu was not a party to the contract, he is entitled to make a building claim in respect of breach of the statutory warranty under s 18B of the Home Building Act for the work performed by EK Constructions: Home Building Act, s 18D(1A). The Tribunal has jurisdiction to hear and determine that claim.
6. The Tribunal considered that the Appeal Panel's reasoning in EK Constructions supported the conclusion that the Owners in the present case were entitled to enforce the s 18B warranties against AJ Gouros as "non-contracting owners" under s 18D(1A) of the Act.
7. AJ Gouros submits on appeal that EK Constructions can be distinguished and the Tribunal failed to have regard to the decision of Stevenson J in The Owners - Strata Plan 74602 v Brookfield Australia Investments Ltd [2015] NSWSC 1916 (Brookfield Australia Investments), which AJ Gouros describes as being "on all fours" with the present case.

Non Contracting Owner

1. The definition of "non-contracting owner" is found in Schedule 1 of the Act: "[N]on-contracting owner, in relation to a contract to do residential building work on land, means an individual… that is the owner of the land but is not a party to the contact and includes any successor in title to the owner".
2. In Brookfield Australia Investments, Stevenson J considered the operation of s 18D(1A) of the Act in circumstances involving an owners corporation of a residential strata scheme claiming damages for breach of the s 18B warranties against a sub-contractor to the original builder. The owners corporation in that case advanced two arguments as to why it came within the "non-contracting" owner provisions in s 18D (1A) of the Act, namely: 1. that the developer was a "non-contracting owner" in relation to the sub-contract, and it was entitled to enforce the same rights as the developer had against the subcontractor; and 2. that the owners corporation itself was a "non-contracting owner" because the Schedule 1 definition of "non-contracting owner" included "any successor in title to the owner", and it was a successor in title to the developer: Vero Insurance Limited v Owners of Strata Plan No 69352 & Ors [2011] NSWCA 138.
3. Section 18D(1A) of the Act was introduced into the Act following the decision of the New South Wales Court of Appeal in Ace Woollahra Pty Limited v The Owners - Strata Plan 61424 (2010) 77 NSWLR 613 (Ace Woollahra). In that case the Court of Appeal held that owners of land that were not parties to the contract for residential building works had no rights under the Act, and accordingly, any successor acquired no rights under section 18C of the Act. It was the absence of these rights that the Home Building Amendment (Warranties and Insurance) Act 2010 (NSW) (the 2010 Amendments) addressed.
4. The 2010 Amendments gave an original land owner who was not a party to a contract, as well as any subsequent owner, an entitlement to the same rights as those that a party to a contract had in respect of a statutory warranty. The 2010 Amendments operated retrospectively, and introduced the entitlement by introducing the definition of "non-contracting owner" into the Act.
5. In Brookfield Australia Investments, Stevenson J considered the statutory definition of "non-contracting owner" as directing attention on the person or entity that is the "owner of the land" to which the contract to do residential building work relates, particularly where the opening words of s 18D(1A) say "in relation to a contract to do residential building work on land". By reference to the definition, his Honour held that a "non-contracting owner" must be someone who is the owner of that land, and who is not a party to the contract to do residential building work on that land.
6. Stevenson J considered s 18D(1A) and the definition of "non-contracting owner" had been introduced into the Act to overcome the lacuna uncovered by Ace Woollahra, and to achieve the result of permitting, for example, a joint venturer, who was not a party to the building contract, to obtain the benefit of the statutory warranties in s 18B of the Act. His Honour did not consider that s 18D(1A) was intended to extend, and should not be interpreted as extending, the benefit of the warranties so as to permit an owner that has contracted with a builder (and therefore a successor in title to the owner) to make a claim for breach of statutory warranty against a subcontractor to the builder.
7. In rejecting that the owners corporation in Brookfied Australia Investments could rely on the "non-contracting owner" provisions in s 18D(1A) of the Act to enforce the s 18B warranties against a sub-contractor, Stevenson J considered that it would have "a dramatic result" to construe the section otherwise: [50] That would be a dramatic result. If a developer is a "non-contracting owner" vis-à-vis its builders' sub-contractors, it would also be a "non-contracting owner" vis-à-vis that sub-contractor's sub-contractors, and that sub-contractor's sub-contractors, and so on ad infinitum. It would mean that an Owners Corporation, as successor in title to a developer, would be entitled to pursue for breach of s 18B warranties not only the builder that contracted with the developer, but the builder's sub-contractors, the sub-contractor's sub-contractors and so on. [51] In my opinion, the Owners Corporation's contentions are not correct. [The Developer] was not a "non-contracting owner" vis-à-vis the Sub-Contract. [52] The definition of "non-contracting owner" directs attention to the entity (here, relevantly, the "corporation": [the Developer]) that is the "owner of the land", and includes "any successor in title" to that entity. The "land" referred to must be the "land" to which the contract to do residential building work relates (hence the opening words of the definition: "in relation to a contract to do residential building work on land"). That entity (and thus its successor in title) is a "non-contracting owner" it if is not a party to that contract; that is, the contract to do residential building work on the land owned by that entity. [53] Thus, s 18D(1A) speaks of a person who is a non-contracting owner "in relation to a contract to do residential building work". That contract must be the same contract referred to in the definition of "non-contracting owner"; namely, the contract to which the "non-contracting owner" is not a party. That must be the contract to do residential building work on that party's land; the building contract. Not a sub-contract to the building contract. [54] Had a joint venturer of [the Developer], rather than [the Developer] itself, been party to the Contract (as happened in Ace Woollahra Pty Ltd v Owners - Strata Plan No 61424 [2010] NSWCA 101 ; 77 NSWLR 613), the effect of s 18D(1A) would be to give [the Developer], as the owner of the land, and the Owners Corporation as its successor in title, the benefit of the s 18B statutory warranties vis-à-vis [the Builder]. [55] Indeed, s 18D(1A) and the definition of "non-contracting owner" were introduced into the HBA to achieve just that result. The second reading speech and explanatory notes to the legislation which introduced s 18D(1A) and the definition of "non-contracting owner" into the HBA (the Home Building Amendment (Warranties and Insurance) Act 2010 (NSW)) make clear that the intended effect of the new provisions was to overcome the effect of the Court of Appeal's decision in Ace Woollahra. The effect of that decision was, to adopt the words of the explanatory notes, "that only a contracting party and any successors in title to that person are entitled to enforce the statutory warranties under Part 2C of the [HBA] … [56] The explanatory notes continued: "The object of this Bill is to amend the [HBA] to ensure that, where a contractor enters into a contract for residential building work on land with a party or parties who are not the owners of the land, the owner or owners of the land will be deemed to be persons on whose behalf work is done and will be entitled to the benefit of any statutory warranty. As a consequence, any successors in title will also be able to recover for the breach of statutory warranty." [57] But here, as [the Developer] was a party to the Contract, s 18D(1A) has no work to do. It does not give [the Developer] any right against sub-contractors of [the Builder]. The Owners Corporation cannot be in any better position. [58] I find this conclusion apparent from the language used in the definition of "non-contracting owner". It is confirmed by consideration of the avowed legislative purpose of the provisions.
8. Unfortunately, the Tribunal here, and the Appeal Panel in EK Constructions, was not referred to, and apparently did not consider, Stevenson J's decision in Brookfield Australia Investments. We consider his Honour's decision as binding and that s 18D(1A) does not extend the benefit of the s 18B warranties to an owner against a sub-contractor to a builder.
9. Consequently, in so far as the Tribunal found the Owners could claim as non-contracting owners under s 18D(1A) because: 1. the Owners contracted with Simonds to carry out the Polishing Works; 2. Simonds subcontracted the Polishing Works to AJ Gouros who carried out that work on the Owners' , 3. it was wrong to do so.
10. However, the difficulty in this case is that the Tribunal did not determine the identities of the parties to the contract by which AJ Gouros carried out the work. Further, the Tribunal did not determine whether, if AJ Gouros did contract with Simonds, it did so as a sub-contractor of Simonds in consequence of an obligation of Simonds to carry out the Polishing Works under its contract with the Owners.
11. The appellants say that they contracted with AJ Gouros directly. AJ Gouros says that it was a subcontractor of Simonds under a written agreement with Simonds.
12. Neither party contended on appeal that there was no contract at all or that the contract was unenforceable due to uncertainty.

Identifying the Contracting Parties

1. The ability to identify the parties to a contract is fundamental to the question of uncertainty, and therefore, to the enforceability of any contract. Lord Millet described the significance of the identity of the parties to a contract as follows in Hombourg Houtimport BV v Agrosin Private Ltd, The Starsin [2004] 1 AC 715 at [175]: The identity of the parties to a contract is fundamental. It is not simply a term or condition of the contract. It goes to the very existence of the contract itself. If it is uncertain, there is no contract.
2. The identification of the parties to the contract must be in accordance with the objective theory of contract: Ryledar Pty Ltd v Euphoric Pty Ltd [2001] NSWCA 65 at [262]-[266]. This involves the Tribunal putting itself in the position of an objective observer assessing who the parties to the contract were, by reference to what the parties said or did at the time: Lampson (Australia) Pty Ltd v Australian Crane & Machinery Pty Ltd [2008] FCA 400. According to Ingram v Little [1961] QB 31 at 66, the search for the objective intention of the parties involves: "… an objective assessment of the words and deeds of the parties in the light of all the evidence, as well as the actual knowledge of the party seeking to enforce the promise against the individual. He cannot of course insist upon a contract with the individual if he in fact knows that the individual was acting as the representative of another, whether or not that other is a corporate entity or natural person or firm. But it lies with the person seeking to avoid that liability to show that there are circumstances, including such knowledge, sufficient to displace the prima facie inference that he is the one liable on the contract".
3. The current state of the law is that a court cannot have regard to post-contractual conduct to ascertain the true identity of the parties to a contract, although this issue has not been finally settled: Pethybridge v Stedikas Holdings Pty Ltd [2007] NSWCA 154. However, the Tribunal is entitled to have regard to the surrounding circumstances and the subject matter of the contract to resolve any ambiguity about the identity of the parties to the contract: Codelfa Constructions Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 331 at 352.

Facts

1. The following matters are relevant to a resolution of whether there was a contract between the Owners and AJ Gouros or whether, if there was a contract between AJ Gouros and Simonds, the Owners were non-contracting parties within the meaning of s 18D(1A) of the Act and appear to be uncontested.
2. The Owners entered a contract with Simonds (Simonds contract) to carry out various building work on their land. Initially, that work included (item 5-5 of the Specification (Simonds Specification) - Appendix A to the Reply to Appeal (Reply)): Provide 'ALLOWANCE ONLY' for client to supply and install 'Polished Concrete to Alfresco, Kitchen, WIP, Dining, Rumpus, Entry & Hallways- to be arranged by clients after slab is poured.
3. By variation recorded in the Simonds Specification under the heading "Post Contract Variation items" (dated 21 June 2016: see Appendix B to Reply), this work was deleted. Item 1-12 says: Delete Contract Item 5-5 "Allowance for polished concrete" Client to supply at Supervisors request.
4. Ms Pongraz, using the Simonds email server, sent an email to AJ Gouros requesting a quotation for the Polishing Works on 7 October 2016. The email contained the Simonds logo and details of the Simonds contract. It referred to the sender, Ms Pongraz, as: Lindsay Pongraz Simonds Homes|Sales Consultant
5. AJ Gouros submitted its written quotation for the Polishing Works dated 14 October 2016 as Ms Pongraz had requested. Ms Pongraz received it. The quotation was addressed to "Simonds Homes".
6. Mr Gouros believed that Ms Pongraz's email request for a quotation emanated from Simonds. However, Simonds did not accept the AJ Gouros quotation. The quotation was accepted by Ms Pongraz by her personally signing the quotation and then returning it to AJ Gouros.
7. Subsequently, AJ Gouros sent the terms and conditions for the supply of goods and services to Simonds (the Trade Supply Agreement). Interestingly, this document was signed by Mr Simonds, on behalf of the company, and had a typed date of 16 December 2013 (emphasis added), the handwritten date beside the signature of Mr Gouros being 22 October 2016. Neither party suggested that the typed date was of any significance or that Mr Gouros did not sign the document on 22 October 2016. The Trade Supply Agreement states, among other things: "The Company wishes to engage the Contractor to provide the Goods and Services and the Contractor has agreed to provide the Goods and Services on the terms set out in this document…
8. Mr Gouros' evidence at the hearing was that: 1. he received the Trade Supply Agreement with a bundle of documents from Simonds, which included a Trades/Supplier information form and induction checklist on 22 October 2016: [6] of the undated witness statement of Gouros; and 2. Mr Gouros completed and signed the documents, where required: [7] of the undated witness statement of Gouros.
9. The Trade Supply Agreement does not identify the "goods and services", which Simonds wished to engage AJ Gouros to provide, and the evidence is inconclusive on that matter.
10. Mr Mennen, General Manager for Simonds, said the polishing of the concrete floors was excluded from the works to be carried out under the contract between the Owners and Simonds: Simonds letter dated 8 December 2017 -Appendix D to Reply to Appeal.
11. AJ Gouros carried out the work, which was paid for by the Owners from Ms Pongraz's bank account.

Who was the contract between?

1. As stated above, neither party suggested that there was no contract for the Polishing Works.
2. The Owners' case was that they contracted directly with AJ Gouros. Ms Pongraz was not intending to act for Simonds in sending AJ Gouros the email requesting a quotation. Her intention was to request AJ Gouros to provide a quotation for the Polishing Works to the Owners personally. She did not intend to represent Simonds in any dealings with AJ Gouros. The Owners did not have a contract with Simonds and did not intend Simonds to sub-contract this work to AJ Gouros.
3. The Owners say there is no issue that Ms Pongraz received the quotation. The Owners say the quotation was accepted by Ms Pongraz through her personally signing the quotation and then returning it to AJ Gouros. Subsequently, the Owners paid AJ Gouros directly for the work performed.
4. On the other hand, AJ Gouros relies on a document, which was subsequently signed, being the Trade Supply Agreement, as recording the terms and conditions for the supply of goods and services. This document states, among other things: "The Company wishes to engage the Contractor to provide the Goods and Services and the Contractor has agreed to provide the Goods and Services on the terms set out in this document…
5. It seems to us that the contract was not formed at the point Ms Pongraz returned the signed quotation.
6. Ms Pongraz, in her personal capacity, signed the quotation addressed to a different person (that is, Simonds). At best, the return of the signed quotation was an offer by her to engage AJ Gouros on the same terms as that offered to Simonds. There is no evidence that AJ Gouros otherwise made a general offer capable of acceptance by the Owners. There is no evidence that AJ Gouros accepted the change of the contracting party to the Owners or Ms Pongraz.
7. It follows that there was no concluded contract at the point when Ms Pongraz returned the signed quotation; objectively there being no common intention to enter into contractual relations.
8. Thereafter, the Trade Supply Agreement was signed by Mr Simonds. The evidence from Mr Mennen is that, at this point in time, Simonds was not intending to enter into a contract with AJ Gouros directly. Rather, as between Simonds and the Owners, the Owners were to contract directly with AJ Gouros and to be responsible for any payment for services.
9. Despite the assertion of Mr Mennen in his subsequent letter to which we have referred, the position remains that Simonds did sign the contract and, on the evidence before the Tribunal to which we have been referred, returned it to Mr Gouros. We were not referred to any evidence to the contrary.
10. Neither party asserted that the Trade Supply Agreement had been signed by mistake. While the Trade Supply Agreement does not specify the work, the documents, which Mr Gouras says accompanied the Trade Supply Agreement, indicate that the parties understood that the work comprised the Polishing Works on the Owners' land.
11. In these circumstances, and despite payments being made by the Owners directly to AJ Gouros, we are satisfied that there was a contract between AJ Gouros and Simonds.

Were the Owners non-contracting parties under s 18D(1A)?

1. The question remains whether the Owners were non-contracting parties within the meaning of s 18D(1A).
2. This is an unusual case. As we have set out above, there was no contract between the Owners and Simonds to carry out the Polishing Works undertaken by AJ Gouros. There was a variation in writing to delete that work which predated the contract between Simonds and AJ Gouros. Further, there is no written variation to reinstate such work in the contract between the Owners and Simonds, and no basis to infer such an arrangement was reached.
3. What has occurred is that Simonds entered into a contract for AJ Gouros to do work on the Owners' land although Simonds had no corresponding contract with the Owners to do so. In turn, the Owners paid AJ Gouros directly for that work.
4. As Stevenson J explained in Brookfield Australia Investments, at [53]-[58] (set out above), the legislation requires the identification of the relevant contract by which the building work is done on the land of the non-contracting party.
5. In the present case, the only contract to perform the Polishing Works on the Owners' land was between Simonds and AJ Gouros. In respect of that contract, the Owners were not a party. As the explanatory notes to the 2010 Amendments make clear: "The object of this Bill is to amend the [Act] to ensure that, where a contractor enters into a contract for residential building work on land with a party or parties who are not the owners of the land, the owner or owners of the land will be deemed to be persons on whose behalf work is done and will be entitled to the benefit of any statutory warranty. As a consequence, any successors in title will also be able to recover for the breach of statutory warranty."
6. In the present case the contractor was AJ Gouros. It did the Polishing Works under a contract with Simonds. Because there was no contract between Simonds and the Owners, the work done was not sub-contracted by Simonds to AJ Gouros. Consequently the Owners are properly to be considered within the definition of "non-contracting owner" in s 18D(1A), there being no contract to which they were otherwise a party by which work was done on their land. This view is consistent with what was said in Brookfield Australia Investments at [54]; the contracting party here being Simonds.
7. It follows that the Tribunal was correct to conclude that the Owners could enforce the statutory warranties in respect of the Polishing Works against AJ Gouros, and the appeal should be dismissed.

Alternative analysis

1. If we are wrong on our analysis as to the contractual arrangements, then there are two other possibilities.
2. First, there was a contract formed by the acceptance of the quotation directly by the Owners or, alternatively, a contract was formed between AJ Gouros and Simonds as the undisclosed principal of the Owners. In either case, the Owners would be entitled to enforce the statutory warranties.
3. Alternatively, there was no relevant contract for the performance of the Polishing Works. Rather, there was a supply of services by AJ Gouros which has been paid for by the Owners. In this case, it is arguable that AJ Gouros was liable for breach of the consumer guarantees under ss 54, 55, 60 and/or 61 of the Australian Consumer Law (NSW).
4. In either case, there being no challenge to the findings of damage arising from defective work, we would have dismissed the appeal.

Orders

1. Having regard to the conclusions we have reached, the appeal should be dismissed.

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. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 May 2018