This is a renewal application made under clause 8 of Schedule 4 of the Civil and Administrative Tribunal Act 2013 ('CAT' Act).
On 22 October 2020 a decision which was later amended under s63 of the CAT Act required the respondent to carry out the following work ('work order'):
'All defects referred to in the Fair Trading report dated 15 July 2019 other than those referred to in 1(b), (c) and (d) of the Tribunal orders made on 5 September 2019 are to be completed by Scalf Pty Ltd within 90 days of the payment of the sum of $41,281.14 as referred to in order 1'
The applicants state that the respondent did not complete the work referred to in the work order. They highlighted the following work in the Fair Trading report dated 15 July 2019 which they say that the respondent did not attend to:
Item 3. 'Roofer' Leaking downpipe
Item 4. 'Gyprocker' Ground floor Main Bedroom Ensuite of main dwelling required remedial work to address cut-out damage'
Item 5. 'Electrician' Wall switches and power points require the installation of covers to main dwelling
Item 6. 'Carpenter' Installation of waterproof silicone sealant to junctions of walls
Item 7. 'Cleaner' final cleaning is identified as incomplete to the garage of the main dwelling
Item 8. 'Painter' Painting is identified as incomplete to wall/ceiling surfaces
Item 10. 'Concrete' installation of concrete pavement to entrance to granny flat is confirmed as incomplete
Item 11. 'Drainer' Sewer drainage work as observed to the rear land of the main dwelling is identified as incomplete
Item 12. 'Gap filler' Incomplete work identified regarding the installation of flexible waterproof sealant to junction between cabinetry and wall surfaces'
These proceedings have had a long history. It is necessary that with this decision that there be an end to the litigation between the parties. Given the history of these proceedings I am not minded to make another work order. On 1 October 2021, I made the following order at a directions hearing:
'The Tribunal made a consent work order on 5 September 2019. Renewal proceedings were brought from those work orders and were heard on 13 July 2020 with the decision given on 22 October 2020. Now these proceedings are the second renewal proceedings. The Tribunal will not make another work order. A money order will be made if the applicants are successful.'
The applicants also raised numerous other defects which were additional to the items contained within the work order.
In bringing this application the applicants do not rely on an expert report. The documents that the applicants rely on were filed by them on 16 July and on 25 October 2021. The respondent relies on documents filed on 28 September 2021 and 16 November 2021. I accept all of the documents filed by the parties as evidence in the proceedings.
Amongst the documents that they have filed, the applicants rely on a Fixout Proposal that they received from MASTA Homes to prove and substantiate their claim.
I have made orders which dismiss the applicants' renewal application. The applicants have failed to file evidence which is sufficient to persuade me that the respondent failed to comply with the work order that was made in the 22 October 2020 decision. The applicants have also failed to establish by cogent evidence the costs associated with a failure to comply with the work order, if found. The MASTA Homes proposal is general and does not deal with the specific items of work referred to in the work order. In the hearing the respondent made submissions in answer to each matter raised by the applicants. In these reasons I have not set out all of the respondent's submissions because I have found that the applicant failed to establish by cogent evidence that the respondent failed to comply with the work orders.
I will deal with each of the items that have been raised by the applicants
[2]
Item 3 'Roofer' Leaking downpipe
In a statutory declaration declared on 10 July 2021 the applicants stated that based on a visual examination the downpipe was leaking. The full description of this item is;
'Leaking of downpipe at connection to gutter on Southern façade.'
The applicants rely on the Fixout Proposal that they received from MASTA Homes ('Fixout Proposal') which is contained in their 25 October 2021 document. This document does not provide evidence of a leaking downpipe or the cost of rectifying such a item. It does contain an item of work in the Scope of Work which is for:
'Plumbing - Testing, Repair, Storm Water and Plumbing Leakage in Bathroom and Around the house - $19500'.
The respondent also stated in its 28 September document at page 7, 'Connected all downpipes of main dwelling into pit'.
I find that the applicants' evidence does not persuade me over the respondent's assertion that the necessary work was carried out, that there is a leaking downpipe or if there is, what is a reasonable cost of rectifying it. This item of the applicant's renewal application is rejected.
[3]
Item 4. 'Gyprocker' Ground floor Main Bedroom Ensuite of main dwelling requires remedial work to address cut-out damage
In support of this item the applicants rely on the MASTA quote, their statutory declaration declared on 10 July 2021 and photographs 4(a) and (b) on page 60 of their documents filed on 16 July 2021.
The applicants 10 July 2021 statutory declaration declared that the Ground floor ensuite bathroom required remedial work.
Photographs 4(a) and (b) on page 60 of their documents filed on 16 July 2021 are 2 photographs of poor quality which do not clearly demonstrate defects which require rectification in connection with gyprock.
The MASTA quote refers to:
'Gyprock - Patching, Fixing - 5500'
I find that this document does not establish that the Ground floor Main Bedroom Ensuite in the main dwelling requires remedial work to address cut-out damage. Nor does it provide a precise estimate of rectification cost.
My 22 October 2020 decision referred to the Appeal Panel decision in X-Build Construction Services Pty Ltd v O'Rourke [2020] NSWCATAP 181 where the use of photographs was discussed. At [61] - [62] the reference to the following authorities was provided:
Tobias JA, with whom Giles JA agreed, said at [167]:
"[167] The use of photographic evidence has been the subject of discussion in this Court. Its admissibility as a visual reproduction is beyond doubt: R v Travers (1958) 58 SR (NSW) 85 at 108. However, in Short v Barrett, Court of Appeal, 5 October 1990 (unreported), Meagher JA, with the concurrence of Clarke and Handley JJA, observed that in relying on his own interpretation of photographic evidence, the trial judge had overlooked the "sage advice" of Lord Reid in C Van der Lely NV v Bamfords Ltd [1963] RPC 61 at 71. His Lordship said:
'Lawyers are expected to be experts in the use of the English language, but we are not experts in the reading or interpretation of photographs. The question is what the eye of the man with appropriate engineering skill and experience would see in the photograph, and that appears to me to be a matter for evidence. Where the evidence is contradictory the judge must decide. But the judge ought not, in my opinion, to attempt to read or construe the photograph himself; he looks at the photograph in determining which of the explanations given by the witnesses appears to be most worthy of acceptance.'"
And at [169]:
"It should be noted that the use by a trial judge of photographs is nothing new. They can, as the authorities to which I have referred confirm, be descriptive of what a witness says he or she saw, being a representation of the witness' knowledge and observations. But they should not be used by a judge to make findings of fact which are otherwise unsupported by the evidence and are therefore no more than conjectural: Schmidt v Schmidt [1969] QWN 3 at 6; Beaton v McDivitt (1985) 13 NSWLR 134 at 142." '
The above authorities state that I should not attempt to interpret photographs except if a witness has referred to them, or even better explains what the photograph depicts. In these proceedings there has been no attempt to explain precisely what photographs 4(a) and (b) on page 60 depict. I have been invited to view them and reach a conclusion based on them that there are gyprock defects in the ground floor ensuite bathroom which require remedial work. I will not attempt to view the photographs and make findings of fact based on them, unsupported by the evidence of a witness who is able to specifically address the defect and state what the photographs depict.
This item of the renewal application is rejected. The applicants have failed to establish that the respondent did not comply with this aspect of the work order.
[4]
Item 5. 'Electrician' Wall switches and power points require the installation of covers to main dwelling
The applicants refer to photographs 6.2(a) and (b) on pages 61 and 62 of their documents filed on 16 July 2021. These photographs depict power points in walls. In their 10 July 2021 statutory declaration the applicants state that incomplete work included:
'Wall switches and power points require the installation of covers'
The applicants' photographs clearly show power points with covers.
The applicants have failed to demonstrate that the respondent failed to comply with the work order. This aspect of their application is rejected.
[5]
Item 6. 'Carpenter' Installation of waterproof silicone sealant to junctions of walls
In their 10 July 2021 statutory declaration the applicants state that incomplete work included:
'Installation of waterproof silicone sealant to junctions of walls'
The applicants rely on the MASTA quote which states:
'Silicon - Whole House - 7500'
The applicants also rely on the bottom two photographs on page 64 of their documents filed on 16 July 2021. These photographs show junctions of walls and walls and ceilings.
The work order was specific in that at point 6. it referred to:
'Installation of waterproof silicone sealant to junctions of washbasins and walls to prevent to prevent the passage of water into concealed spaces is incomplete throughout.'
I find that the work order never required the respondent to install waterproof silicone sealant to junctions of walls. I therefore reject this aspect of the applicant's renewal application as it raises work that was never a part of the work order.
[6]
Item 7. 'Cleaner' final cleaning is identified as incomplete to the garage of the main dwelling
In their 10 July 2021 statutory declaration the applicants state that incomplete work included:
'final cleaning is identified as incomplete to the garage of the main dwelling'
The applicants rely on the MASTA quote which states:
'Site clean - Inside and outside 4500'
The applicants also rely on the photographs on page 66 of their documents filed on 16 July 2021. These photographs show various images. The comments and findings that I made about photographs at [19] and [20] apply equally to the photographs which the applicants have referred me to at page 66 of their document.
The applicants' evidence does not persuade me that the respondent failed to carry out this aspect of the work order. This aspect of their application is rejected.
[7]
Item 8. 'Painter' Painting is identified as incomplete to wall/ceiling surfaces
In their 10 July 2021 statutory declaration the applicants state that incomplete work included painting to wall and ceiling surfaces. The applicants also rely on photographs at pages 62, 63 and 64 of their document filed on 16 July 2021.
They also rely on the MASTA quote which allows for the painting of the full house inside and out at a cost of $18,000.00.
The respondent states in its documents that it carried out painting work. It also points out that the applicants have been residing in the premises since April 2019 and there has been fair wear and tear in connection with painted surfaces. In addition, the respondent has provided a list of areas where it painted in response to the Fair Trading Report as follows:
1. Main entrance doors of main dwelling and granny flat;
2. wall surfaces of internal staircase atrium;
3. wall/ceiling surfaces in the main dwelling and granny flat wherever incomplete;
4. staircase balustrade;
5. main dwelling first floor balcony poles;
6. external pipes wherever incomplete; and
7. front column of the main dwelling.
The applicants' evidence does not persuade me that the respondent failed to comply with the work order by not completing painting to wall and ceiling surfaces. Even if the applicants' evidence did establish that, I find that the cost claimed by them, $18,000.00 for the painting of the full house inside and out is excessive for the purpose of compensating them for any failure by the respondent to comply with this aspect of the work order.
This aspect of the renewal application is rejected.
[8]
Item 10. 'Concrete' installation of concrete pavement to entrance to granny flat is confirmed as incomplete
In their 10 July 2021 statutory declaration the applicants' state that incomplete work included concrete pavement to entrance to granny flat being incomplete. The applicants also rely on photographs 6(a) and (b) at pages 65 and 66 of their document filed on 16 July 2021.
Photographs 6(a) and (b) show formed up sections of concrete pavement. These photographs do not show incomplete sections of pavement.
The MASTA quote does not address concrete paving to the entrance to the granny flat.
The applicants' evidence does not persuade me that the respondent failed to comply with this aspect of the work order. If I am wrong about that, the applicants have not provided evidence of the cost that would be incurred to carry out the necessary work.
This aspect of the renewal application is rejected.
[9]
Item 11. 'Drainer' Sewer drainage work as observed to the rear land of the main dwelling is identified as incomplete
In their 10 July 2021 statutory declaration the applicants' state that incomplete work included sewer drainage work to the rear land of the main dwelling being incomplete.
The full text of item 11 of the Fair Trading letter dated 15 July 2019 was:
'Sewer drainage work as observed to the rear land of the main dwelling is identified as incomplete with investigation work necessary to determine the cause of a past blockage and overflow.'
The applicants also rely on photograph 4(b) at page 60 of their document filed on 16 July 2021.
The comments and findings that I made about photographs at [19] and [20] apply equally to photograph 4(b) which the applicants have referred me to at page 60 of their document. I find that photograph 4(b) is of no help to me at all.
The applicants rely on the MASTA quote which allows for plumbing including testing, repair, storm water and plumbing, leakage in the bathroom and around the house and waterproofing for a price of $19,500.00.
The respondent states that its contractor Sydney Plumbing Patrol Pty Ltd did the necessary work which is evidenced by its invoice dated 20 December 2020 (contained in its 28 September documents) where among other things it refers to a CCTV camera inspection to check if the overflow pipe is going to the back and have added a floor waste to collect the water when it rains. The respondent also stated in its 28 September document at page 6 'Fixed sewer pipe leakage in backyard of main dwelling'
The applicants' evidence in connection with this item is not persuasive. A plumber's report would have been helpful to explain the issue and whether the problems which caused the past blockage and overflow had been investigated and addressed. The respondent's evidence does establish that a CCTV camera inspection was carried out although it is not particularly clear that the inspection was to sewer drainage work to the rear land of the main dwelling. The respondent also asserts that it attended to the necessary work.
The amount apparently claimed for this work in the event that the applicants are successful, $19,500.00 goes well beyond what would be the cost of dealing with this aspect of the work order.
I find that the applicants have not persuaded me that the respondent failed to comply with this aspect of the work order or that the amount claimed is a reasonable assessment of the cost of complying.
This aspect of the renewal application is rejected.
[10]
Item 12. 'Gap filler' Incomplete work identified regarding the installation of flexible waterproof sealant to junction between cabinetry and wall surfaces
The full text of item 12 of the Fair Trading letter dated 15 July 2019 in relation to 'Gap filler' was:
'Incomplete work identified regarding the installation of flexible waterproof sealant to junction between washbasins/cabinetry and wall surfaces'
The applicants rely on photographs 6.3(b), 6.4(a) and (b) on pages 62 and 64 of their document filed on 16 July 2021. These photos depict junctions between walls, and walls and ceilings.
As with item 6, I find that the work order never required the respondent to install waterproof silicone sealant to junctions between cabinetry and wall surfaces. I interpret item 12 to require the respondent to install flexible waterproof sealant to junctions between washbasins and cabinetry and washbasins and wall surfaces.
I therefore reject this aspect of the applicant's renewal application as it raises work that was never a part of the work order.
[11]
Other items of work
In their application the applicant raised a number of additional items of work which they say are defective and must be rectified by the respondent.
In my previous decision dated 22 October 2020 I referred to the situation where additional issues were raised on a renewal application, that were not dealt with in a work order, referring to a decision of an Appeal Panel in Bondarek v NSW Land and Housing Corporation [2018] NSWCATAP 299 in connection with the width of 8(4)(a) of Schedule 4 of the CAT Act at [43] and [44] where it was stated:
'If we had to find afresh on the basis of the words in clause 8 taken together with their appearance in a Part headed "Special practice and procedure" and interpreted with the assistance of a specific heading "Renewal of proceedings in respect of certain Division decisions", we would come to the view that. there is nothing by way of limitation in clause 8 that restricts the Tribunal in a renewal application to the relief claimed in the originating application being renewed, whether or not there was existing evidence to support a new claim for relief already before the Tribunal in relation to the originating application
This interpretative assistance reinforces the purpose, object and context of the renewal power. It is not simply an aid to enforce the Tribunal's existing orders as clause 4(a) makes clear in its reference to "make any other appropriate order". There is no restriction in the clause to the existing material before the Tribunal or its existing findings on that material.' (emphasis added)
There has been a long history to the proceedings between the parties and the applicants raising additional items of defective work on a repeated basis. There are time limits to bringing applications for defective work, which I would find applies equally to adding additional items to renewal proceedings.
Section 18E of the Home Building Act 1989 (the 'Act') states so far as is relevant:
'Proceedings for a breach of a statutory warranty must be commenced in accordance with the following provisions--
(a) proceedings must be commenced before the end of the warranty period for the breach,
(b) the warranty period is 6 years for a breach that results in a major defect in residential building work or 2 years in any other case,
(c) the warranty period starts on completion of the work to which it relates (but this does not prevent proceedings from being commenced before completion of the work),
Section 3B of the Act defines 'completion' as follows:
'(1) The completion of residential building work occurs on the date that the work is complete within the meaning of the contract under which the work was done.
(2) If the contract does not provide for when work is complete (or there is no contract), the completion of residential building work occurs on "practical completion" of the work, which is when the work is completed except for any omissions or defects that do not prevent the work from being reasonably capable of being used for its intended purpose.
(3) It is to be presumed (unless an earlier date for practical completion can be established) that practical completion of residential building work occurred on the earliest of whichever of the following dates can be established for the work--
(a) the date on which the contractor handed over possession of the work to the owner,
(b) the date on which the contractor last attended the site to carry out work (other than work to remedy any defect that does not affect practical completion),
(c) the date of issue of an occupation certificate under the Environmental Planning and Assessment Act 1979 that authorises commencement of the use or occupation of the work,
(d) (in the case of owner-builder work) the date that is 18 months after the issue of the owner-builder permit for the work.'
A 'major defect' is defined in s18E of the Act as follows:
'"major defect" means -
(a) a defect in a major element of a building that is attributable to defective design, defective or faulty workmanship, defective materials, or a failure to comply with the structural performance requirements of the National Construction Code (or any combination of these), and that causes, or is likely to cause--
(i) the inability to inhabit or use the building (or part of the building) for its intended purpose, or
(ii) the destruction of the building or any part of the building, or
(iii) a threat of collapse of the building or any part of the building, or
(b) a defect of a kind that is prescribed by the regulations as a major defect, or
(c) the use of a building product (within the meaning of the Building Products (Safety) Act 2017 ) in contravention of that Act.'
A major element of a building is defined in s18E of the Act as follows:
'"major element" of a building means--
(a) an internal or external load-bearing component of a building that is essential to the stability of the building, or any part of it (including but not limited to foundations and footings, floors, walls, roofs, columns and beams), or
(b) a fire safety system, or
(c) waterproofing, or
(d) any other element that is prescribed by the regulations as a major element of a building.'
These proceedings were instituted on 12 May 2021. The respondent states that the applicants received an interim occupation certificate on 16 April 2019. In previous proceedings the subject of my decision dated 22 October 2020, the applicants' evidence was that they obtained an interim occupancy certificate in April 2019. I will accept the later date provided by the respondent, 16 April 2019 as the date of the interim occupancy certificate. Based on the dates of 16 April 2019, the date of the interim occupation certificate and 12 May 2021 the date of the institution of these renewal proceedings, I find that it is too late for the applicants to commence proceedings for breach of a statutory warranty for a defect other than a major defect because more than 2 years has elapsed after completion as defined in the Act and as found as being 16 April 2019, and the date of the commencement of these proceedings, 12 May 2021.
The additional matters raised by the applicants in these Renewal proceedings are:
1. Sliding cavity door of the rumpus area not done;
2. wooden support in study area from floor to ceiling is not done;
3. windows and door lock keys not supplied;
4. post construction plumbing defect causing water on ground floor bathroom;
5. cracked wall of garage area;
6. balcony sliding door damaged;
7. wrong switch cover installed;
8. painting not done;
9. silicon not done;
10. gap not filled;
11. Gyprock not fixed;
12. bathroom light not fixed;
13. 'wood of concrete not collected';
14. garage not cleaned;
15. paint not removed from garage door;
16. main entry door area not cleaned;
17. cement from windows not removed;
18. colour bond roof done instead of tiled roof outside master bedroom;
19. down pipe not sealed so water dripping;
20. CB tripped a few times;
21. tape not removed from Windows; and
22. faulty door lock of granny flat.
I have had regard to the definitions of major defect and major element. Applying those definitions to the defects referred to in the preceding paragraph I find that all of the defects except (2), (4), and (5) would not be major defects and have been brought too late. By reason of s48K(7) of the Act, the Tribunal has no jurisdiction to hear and determine those claims.
In connection with the defects referred to in [64 (2), (4), and (5)] I find that those items may constitute major defects. However before I would find that they are major defects and therefore within time, it is necessary for the applicants to establish that:
1. The wooden support in study area from floor to ceiling is an internal or load-bearing component of the premises that is essential to the stability of the premises, or any part of it and the alleged failure to provide it in accordance with the contractual requirements has caused or is likely to cause any one or more of the matters referred to in (a)(i) - (iii) of the definition of major defect;
2. The plumbing defect causing water on ground floor bathroom as referred to goes to waterproofing, rather than being merely a cause of a water leak which does not compromise waterproofing and if it does compromise waterproofing it has caused or is likely to cause any one or more of the matters referred to in (a)(i) - (iii) of the definition of major defect;
3. The cracked wall of the garage area is an internal or load-bearing component of the premises that is essential to the stability of the premises, or any part of it and the alleged crack has caused or is likely to cause any one or more of the matters referred to in (a)(i) - (iii) of the definition of major defect.
The applicants have not filed evidence which addresses any of the necessary elements which have been identified in connection with making a finding that any of the defects which have been added to these proceedings are major defects. In addition there has been no evidence which establishes that the new defects now raised by the applicants were caused by the respondent breaching the contract or the statutory warranties implied by s18B of the Act.
For the reasons provided, the applicants' renewal application is dismissed.
[12]
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: 29 July 2022