Beverley Dawn Brooker and Mervyn Graeme Brooker v P J & J A Worth Pty Ltd

NCAT Consumer and Commercial|2014-05-26

reasons for decision 1This application is an application for renewal, filed by the applicants on 14 January 2014, seeking an order for compensation due to non-compliance with previous consent orders of the Tribunal in matter HB 13/10504. In their application for renewal, the applicants sought an order for the payment of $22,092.90. 2The consent orders agreed by the parties in matter HB 13/10504, dated 21 June 2013, were in the following terms; "1. By consent, the Tribunal orders that the respondent is to carry out the following work on or before 30 September 2013 in a proper and workmanlike manner, and if not the applicant may renew the proceedings at any time before 30 January 2014. Details of work order: (i) Rectify Duragal by preparing and painting to 100mm and installing capping to all piers as per manufacturers recommendation. (ii) Repair crack in side of house, right hand side, north elevation (in fibre cement wall cladding). (iii) Repair window seals to fix cracks in sealant and cracks around window frames where needed. (iv) Install a handrail on external stairs. (v) Investigate and repair the deck to eliminate pooling and lack of fall and leaking to the area below. The home owner may provide a different tile at their own cost. If they cannot agree on rectification, the matter will be renewed. The builder will pay for tiles up to the original cost. 3. By consent, if the above order is not complied with, the applicant may, at any time before 30 January 2014, renew the proceedings. 4. By consent, the applicant is not presently pursuing the contractual claim of $2,000 for scaffolding hire, but reserves the right to include it as part of any renewal." Section 43 of the Consumer, Trader and Tenancy Tribunal Act 2001 (the Act) provides; 43 Enforcement of certain Tribunal orders (1)If the Tribunal makes an order in relation to any proceedings, the Tribunal may, when the order is made or later, give leave to the person in whose favour the order is made to renew the proceedings if the order is not complied with within the period specified by the Tribunal. (2)If an order has not been complied with within the period specified by the Tribunal, the person in whose favour the order was made may renew the proceedings to which the order relates by lodging a notice with the Tribunal stating that the order has not been complied with. (3) The provisions of this Act apply to a notice lodged in accordance with subsection (2) as if the notice were an application made in accordance with section 24. (4) When proceedings have been renewed in accordance with this section, the Tribunal: (a) may make any other appropriate order under this Act as it could have made when the matter was originally determined, or (b) may refuse to make such an order. (5) This section does not apply if the operation of an order has been suspended. (6) A notice under this section must be in the form prescribed by the regulations. 3This application is made pursuant to subsection 43(2) the Act. The application has been made within the time permitted in order 2 of the consent orders dated 21 June 2013. In the application for renewal the applicants have claimed that the work undertaken was defective and that the respondent had not completed the work in accordance with the Tribunal orders. 4With documents filed pursuant to procedural directions, on 24 April 2014, the applicants also sought to introduce claims for compensation which were not part of the consent orders, but which they claimed were part of the original application. Without leave of the Tribunal, or the consent of the respondent, they sought to amend their claim to seek compensation for a further 8 items, bringing their claim to a total sum of $38,436.04.

Renewal Applications 5As to whether on a renewal the Tribunal had the ability to reopen the original claim. From the outset it was indicated to the parties that section 43, is not a mechanism of appeal but provides a process to enforce orders of the Tribunal if necessary. The consent orders themselves further demonstrate that the applicants chose only to preserve their rights in respect of one item, that is the scaffolding. 6This approach is consistent with previous reasoning of the former Consumer, Trader and Tenancy Tribunal, when considering applications pursuant to section 43 of the Act. In the matter of Zaky v Versatile Ceramics (General) [2005] NSWCTTT 144, Member J Smith wrote the following about renewal applications: "From the outset it should be understood that this application is not an appeal from the orders [previously] made by ... [the Tribunal] ... I do not have any power to rehear the merits of the dispute. This application is simply part of the process to enforce those orders, if necessary." 7In the matter of Beck v Blindmaster Pty Ltd [2005] NSWCTTT 107 the Member also contemplated the scope of renewal applications, and reasoned as follows; "12. Moreover, in most cases, the jurisdiction of the Tribunal is exhausted by the time section 43 renewal applications are made. The Tribunal having: decided that it had jurisdiction; taken evidence; made findings of fact and applied them to the law; and, made orders, the subject of the renewal application; it cannot then revisit the issues originally in dispute. That can only be done if: a party seeks and is granted a rehearing under section 68 of the Act; or, the matter is reheard by the Tribunal or the Supreme Court pursuant to subsection 67(3) of the Act. Orders made by consent have the same effect on the Tribunal's jurisdiction as set out above. This means that the scope of the renewal application is usually limited to those matters set out in paragraph 10 above, and while subsection 43(3) states the provisions of the Act apply to a renewal as if it were an application made in accordance with section 24 , this only relates to procedural matters. The original dispute does not come back before the Tribunal. 13.There may be cases, such as where work or other non money orders are made, either following a hearing or by consent, that must be complied with by more than one party who are either the applicants or respondents to the original application. In such cases, the Tribunal may need to take additional evidence and make findings of fact and law while conducting the renewal application so further orders may be made otherwise those orders may unjustly impose a liability upon a particular party to the proceedings. However, that will not generally be the case where orders are made against only one party, be those orders the outcome of a hearing or made by consent." 8Furthermore in the matter of Building Restorations Pty Ltd v Nichol [2006] NSWCTTT 423, the Member set out the considerations of the renewal procedure set out in section 43 of the Act as follows "The purpose of this section relates to something like enforcement. If orders made by the Tribunal prove ineffective in finalising a dispute alternative orders can be made. It is noteworthy that the orders available on review are limited to those which 'could have been made when the matter was originally determined.' This indicates that the determination of the issues is final but the orders made can be varied. There is not to be, on my reading of the provision, any new evidence or revisiting of the issues already determined." 9As the purpose of section 43 relates to the enforcement, it is not open to the Tribunal to consider claims that were not part of the original Tribunal orders of 21 June 2013. Furthermore the Tribunal is not satisfied, having reviewed the previous file, that the original claim for compensation included all the items that the applicants' sought to agitate at the renewal. Their submission of 20 March 2013, sets out only 9 claims, including compensation for experts fees. The claim for $8,245.00 for stabilisation of the embankment for example was not particularised in submission of 20 March 2013, and in any event site works were agreed by the parties to be the subject of a separate contract. 10The Tribunal therefore limited its consideration only to the grounds that were set out in the original orders and whether there had been compliance with the orders of 21 June 2013, and the grounds for renewal had been made out.

Applicants' Submissions 11The applicants' submitted that the respondent had not carried out all the work in accordance with the consent orders of 21 June 2013, and that all of the work that had been undertaken was defective and in need of further remedial work. The applicants provided both written and verbal submissions. They also relied upon the expert report of Mr Stuart Johnstone and Mr D. R Cornish. Mr Johnstone gave evidence to the Tribunal.

Respondent's Submissions 12The respondent conceded that not all of the works had been completed, and some remedial work was required. However it was claimed that they had been delayed in commencing the works due to the difficulties in arranging site meetings with the applicants, and delays by the applicants in selecting balcony tiles. The respondents submitted an expert report from Mr Denis Stewart. Mr Stewart attended the hearing and gave evidence to the Tribunal.

Scott Schedule 13The respective experts had met on site and prepared a joint scott schedule dated 27 March 2014 was before the Tribunal. The experts agreed on the extent of the defective works, incomplete works and proposed rectification costs.

Jurisdiction 14The Tribunal is satisfied that the orders of 21 June 2013 provided for the respondent to carry out certain works for the applicants. The work was to be completed on or before 30 September 2013, and not all the work was completed. It is accepted that there were some delays, as tiles for the balcony were not delivered until, 17 October 2013. Yet, the applicants allowed the respondent additional time, until 12 December 2013. Further it is not only the remedial work to the balcony that remains outstanding. The fact that the respondent had not completed the work, by December 2013 is sufficient enliven the jurisdiction of the Tribunal pursuant to subsection 43(2) of the Act. 15The Tribunal shall now deal with the items of the work order as they are set out in the orders of 21 June 2013. As to whether it is appropriate to order a further work order or compensation as claimed, the relationship between the applicants and the respondent appears irreparable. The applicants have submitted that they have not further confidence in the respondent and will not permit the company back on site. The Tribunal accepts that the respondent has had ample time to attend to the rectification, even allowing for the delay in tiles, and it is not appropriate make a further work order.

Rectify Duragal piers 16The respondent had undertaken work to prepare and repaint all Duragal piers and installed cement capping. The applicants' submitted that the use of wire brushes to prepare the piers was not in accordance with the manufacturers recommendations and had compromised the paintwork. It was further alleged that the new concrete collars for all 22 piers were defective. The applicants maintained that the respondent should bear the costs of all site preparation works necessary to complete this work, at a cost estimated at $1,366.20 including travel. The sum of $911.00 was sought for the removal and replacement of the concrete collars, with a further $1,306.25 to fill the piers to weep hole levels. 17The respondent conceded that the concrete had not bonded appropriately in the cement capping. It was submitted that there were difficulties with the site, which was on a slope, and there was inadequate drainage. This contributed to the surface rust and efflorescence at the top of the new cement capping. 18In the joint Scott schedule the experts agreed that the applicants should bear the costs of site preparation, and the installation of effective drainage. It was determined that rectification work was required to 15 piers, where rust scale and efflorescence were evident, the cement capping was further found to be porous and absorbed moisture, with the filing at the base of the posts not up to the invert level. The costs of rectification were agreed at $850.00. 19In relation to this particular item, the applicants' submissions contradicted the evidence of their expert. They maintained that remedial works were required above that found required by their expert and argued that they were entitled to compensation greater than the agreed cost estimates set out in the joint Scott schedule. For example, the applicants claimed that the location of their property at Nerong, meant that it was difficult to find suitable tradespeople who would not also charge a loading for travel. This approach was not of overall benefit to their case. It had the effect of undermining their evidence as to the reasonableness of their claims and also undermined the expertise of their qualified expert. 20Both Mr Johnstone and Mr Barnett, in their reports have acknowledged and accepted the Consumer, Trader and Tenancy Tribunal, Expert Witness Code of Conduct. The Code of Conduct provides that the overriding role is to assist the Tribunal in their relevant area of expertise. They were not advocates for any party and their paramount duty was to the Tribunal and not the parties that retained them. The Tribunal found no reason to disregard the evidence of the experts. The Tribunal accepts the joint evidence of the experts, as contained in the joint Scott schedule, that remedial work was required to 15 piers. The expert evidence is not that all 22 piers required remedial work. The expert evidence does not establish that the galvanising on all piers requires remedial work. The Tribunal does not accept that the respondent bears the costs of site works, or the installation of effective drainage. The site works were not part of the original consent orders and the original site works were completed prior to June 2005, they were not part of the building contract. The Tribunal further accepts that the costs of this work is the sum of $850.00.

Repair crack on side of the house, right hand side, north elevation 21The experts agree that this repair requires further remedial work. The caulking to the join in the Harditex wall cladding is cracked and has debonded from the edge of the sheeting. The agreed costs of rectification are set out at $115.00. The Tribunal makes a finding accordingly. 22The applicants argued that the entire house cladding required replacement. This was not part of the consent orders and therefore outside the Tribunal's consideration on renewal under section 43 of the Act.

Repair window seals to cracks in sealant and cracks around window frames 23The respondent conceded that this work was not undertaken. In accordance with the orders of 21 June 2013, the windows require the installation of a flexible sealant to the window frames. The experts agreed on the quantum for this work in the joint Scott schedule, including preparation, in the sum of $775.00. The Tribunal accepts this evidence.

Install a handrail on the external stairs 24Through the joint Scott schedule both experts agree that this work is not completed. The timber requires sealing and two coats of paint. The agreed costs of rectification were $280.00. They both agreed that a multi-skilled labourer could attend to this work. 25The applicants submitted that the costs agreed by the experts were not sufficient. They had obtained a quote for this work from a local painter, Mr Todd Lantry, for the sum of $880.00 and they argued that this was more appropriate. 26The respondent conceded that the timber railing required further treatment to seal it. It was argued that as the exterior railing was required to be fire rated that seasoned timber was necessary, and it was therefore unable to be painted the same day it was installed. The respondent claimed that the consent orders of 27 June 2013 did not require him to paint the handrail. He also submitted that a cost of $160.00 was more appropriate. 27The Tribunal acknowledges that painting is not specified in the consent orders of 27 June 2013. However, the Tribunal finds that the materials supplied by the respondent in undertaking these works required treatment. Therefore it was incumbent upon the respondent to complete the works in a proper and workmanlike manner, including painting. Both experts conceded that a multi-skilled labourer could carry out the painting work. The Tribunal accepts finds that the claim has been made out in relation to this item, and accepts the evidence of the experts as to the fair and reasonable quantum of damages in the sum of $280.00.

Investigate and repair the deck to eliminate pooling and lack of fall and leaking to the area below 28The evidence is, as set out in the reports of Mr D. R. Cornish. It is reported that the deck had endured significant ponding since construction of the residential premises. The respondent attempted some remedial works by installing another layer of tiles over the original tiles, the applicants' allege this was unsuccessful and as part of the consent orders of 27 July 2013. 29The respondent has commenced the work of removing the existing tiles on the balcony and has attempted the installation of a new tile bed. The experts have agreed there is incomplete work and have further agreed and set out for the Tribunal the works required by way of rectification. This includes removal of the vertical tiled up stand. As does the mortar bed to the perimeter edge to allow for drip mould installation. The tile bed requires repair including the removal of exposed wire. The vertical surface then needs resealing with a waterproof compound. Efflorescence and surface rust scale is to be cleaned and a protective coating to the metal floor joist is required. Where gaps are evident, the blocking is to be removed and reinstalled and the blocking of the underside of the balcony along the sheet edges is to be completed. The surface is to be prepared for a thin bed of adhesive, a movement joint, patent drip and edge mould supplied and installed. Tiles are to be applied to the balcony and grouted, followed by a sealant to the perimeter and intermediate movement joints. Finally capping pieces to the handrail post bases. The quantum agreed by the experts for this work is $4,645.00. 30The applicants' claimed that the experts agreed costs were once again insufficient. They have had difficulty getting a tiler to come and quote for the job, as no subsequent contracted wants to be responsible for the waterproofing of the render bed. 31The respondent conceded the defective works as set out by the experts in the joint Scott schedule. The quantum of damages was also conceded, however the estimate of costs included the supply of tiles for the deck and these had already been delivered to the applicant and were on site awaiting installation. The respondent maintained that the costs of the tiles should be deducted from any quantum of damages awarded. Both experts conceded that their estimated quantum included the supply of tiles. The applicants' acknowledged that the tiles were on site. The invoice for the supply of tiles has been provided, the cost is $1,272.73. The respondent has further claimed that the orders provided for the respondent to bear the cost of the tiles up the original allowance. 32The Tribunal accepts the evidence of the evidence as to the required rectification works and the costs, with the exception of the supply of the tiles. The waterproofing certificate for the works has been provided to the applicants as part of the evidence in the proceedings. It is not established that this needs to be redone. The Tribunal finds on the evidence that the costs of the tiles are to be deducted from the agreed quantum. Therefore $1,272.73 is to be deducted from $4,645.00 and Tribunal awards the sum of $3,371.27. 33The applicants had further claimed the cost of repair and paint cracks to the interior walls, which they submit were caused by the jack hammering of the tiles on the deck, when work was being undertaken by the respondent in accordance with the orders of 27 June 2013. Mrs Brooker gave evidence on oath that she was present on the day the works were undertaken and observed first-hand the cracks appearing as a consequence of vibrations throughout the house. The cracks were reported to the respondent the following day. Photographic evidence has been supplied of the damage as well as a quote by Todd Lantry for rectification in the sum of $825.00. 34The respondent conceded that he had observed the damage; it was reported the day after the use of jack hammers on the deck; however the respondent was not convinced that the works had caused the damage. 35The orders of 27 June 2013 were that the respondent was to carry out the works in a proper and workmanlike manner. The Tribunal accepts the evidence of Mrs Brooker that she witnessed the cracks appear during the course of the respondent's employees carrying out the works. It if further probable that had the cracks been present at an earlier time, they would have previously been reported by the applicants. The Tribunal therefore finds the respondent liable for the damage. In the absence of a competing quote damages are awarded in the sum claimed being $825.00.

Scaffolding 36The applicants allege that they should be entitled to the reimbursement of $2,000.00, as the respondent has not documented that this sum was spent on scaffold hire during the original build. The figure of $2,000.00 was obtained from the quote that the respondent submitted prior to the entry into the building contract. In the quote an allowance was estimated for scaffolding in the sum of $2,000.00. The applicants further produced 2 photographs of the premises taken during the course of the build. One contained no scaffolding, the other had scaffolding only at one side of the building. They claimed that as the respondent had been unable to produce to their satisfaction invoices for scaffold hire, this should be refunded from the contract price. 37The respondent submitted that the quote for scaffolding was part of the allowance for the overall build. Further scaffolding was used throughout the build, some was hired, including a scaffolding rail for the roof plumber. The scaffolding was generally aluminium and mobile. The respondent has provided a breakdown of costs for scaffolding during the build in the sum of $3,190.00. The respondent submitted that due to the time that had elapsed they no longer had all the original receipts, although they were able in their evidence to account for over $1,000.00. Further, they did not tend to leave scaffolding onsite over the weekend as it is expensive, the property was isolated and there were concerns about having gear stolen. 38The Tribunal accepts that the sum of $2,000.00 set out for scaffold hire in the respondent's quote dated 28 June 2005. However the building contract itself, dated 6 October 2005, was for a fixed price. It is accepted that the sum of $2,000.00 was an estimated allowance, not a fixed quote. The applicants bear the onus of proof on this item. They have conceded that they were not present throughout the entire build and cannot reliably give evidence as to what scaffolding was present on site on a particular day. They have not established that the terms of their building contract entitle them to a refund, the contract sets out the procedure for any variation. The Tribunal finds that the applicants have not established that they are entitled to compensation in the sum claimed. 39In summary the Tribunal has made orders of compensation in favour of the applicants' as follows; Duragal Posts $ 850.00 Widow Seals $ 775.00 Side crack $ 115.00 External Handrail $ 280.00 Front Balcony including internal wall repairs $4,196.27 TOTAL $6,216.27

Costs 40The applicants have been successful in establishing the grounds for renewal are made out and obtaining an order for compensation. Although the applicants claimed in excess of $30,000.00 the resultant order is considerably less. 41Section 53 of the Act provides that subject to that section and the regulations, the parties in any proceedings are to pay their own costs. Regulation 20 of the former Consumer Trader and Tenancy Tribunal Regulation 2009 provides that in proceedings in respect of which the amount claimed or in dispute is not more than $30,000.00 the Tribunal may award costs in relation to the proceedings only if the Tribunal is satisfied that there were exceptional circumstances that warrant the awarding of costs. 42The Tribunal is not satisfied that this was the case. If anything the applicants had contributed to the costs for the parties by seeking to widen their claim beyond the consent orders of 27 June 2013, and proceeded to argue a claim for compensation above that recommended by their expert, thus contributing to further expense for all parties. 43Therefore the Tribunal finds in accordance with section 53 of the Act each party should pay its own costs. Orders 44P J & J A Worth are to pay Beverley Dawn Brooker and Mervyn Graeme Brooker the sum of $6,216.27, on or before 14 July 2014. 45Each party is to pay their own costs. P Hunter General Member Civil and Administrative Tribunal of New South Wales 1 July 2014 Amended on 16 July 2014

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: 04 September 2014

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