Durastyle Homes Pty Ltd v Gosling; Gosling v Durastyle Homes Pty Ltd

The builder's application

1. The builder commenced proceedings by statement of claim filed in the Local Court on 4 November 2020. The builder pleads an oral agreement between him and the owners.
2. The builder alleges the parties entered into an oral agreement between Andrew Gibbs and Ty Gosling in or about November 2019. Terms of the agreement were that the builder would arrange, manage and supervise subcontractors to perform the work required by the owners at their residence and at the owners' company's address in Penrith and render to the owners the costs of the subcontractor plus a 15% management fee for payment.
3. Between November 2019 and June 2020 the builder says he "arranged, managed and supervised subcontractors" to perform the work required by the owners.
4. Ty Gosling requested that the builder issue tax invoices solely to the owners' company for the services provided by it. The applicant issued tax invoices to the owners' company as requested and the owners failed to pay a total of $78,328.20: Date Invoice Number Amount unpaid 19 March 2020 2077 $21,983.78 21 April 2020 2097 $6917.75 21 April 2020 2098 $1141.42 21 April 2020, 2099 $29,519.68 21 April 2020 2100 $4870.75 11 May 2020 2104 $3786.30 11 May 2020 2105 $624.70 25 June 2020 2127 $8140.56 25 June 2020 2128 $1343.19 Total $78,328.20
5. In the alternative, the builder claims the sum of $78,328.20 pursuant to the principle of quantum meruit. The builder says that the work arranged, managed and supervised by the builder has enriched and/or benefited the owners and it would be unjust in the circumstances to allow the owners to retain the enrichment funded by the builder without financially compensating it.

Defence

1. In a defence filed on 1 December 2020 in the Local Court proceedings, the owners admit that the builder performed residential building work but deny the sum as claimed and allege that although at all relevant times the builder held himself out as a residential home builder and performed residential building work in accordance with the Home Building Act 1989 (the Act), it failed to provide a written contract in accordance with sections 7 and/or 7AA of the Act. In addition the builder carried out residential building work in contravention of section 92 of the Act (the requirement to insure the work). The builder did not obtain Home Owners Warranty Insurance.
2. By reason of the builder's failure to comply with section 92 of the Act the owners claim the builder is not entitled to damages or enforce any other remedy in respect to any breach of the contract committed by the other party to the contract and is not entitled to recover money in respect of that work including a claim for quantum meruit.
3. Further it is alleged that the builder has breached the contract in that the residential building work carried out by the applicant was incomplete and/or defective and the cost of completion of unfinished work in accordance with the contract and costs of repair to the defective work is $55,961.61. The owners rely on the building report of Worthington Cunliffe and Associates dated 26 November 2020.
4. The proceedings were transferred to the Tribunal by consent of the parties on 12 January 2021.

The owners' application

1. The owners commenced a separate application on 30 March 2021 HB 21/14341. In their application filed in the Tribunal the owners claim damages in the sum of $88,400 for defective work pursuant to section 18B of the Act.

Evidence and submissions

1. In making a decision, I have considered the material in Volumes 1 marked Exhibit One being the owners' bundle of evidence and Exhibit A, being the builder's folder of evidence. I have taken into account the oral evidence of the parties and their witnesses and the written submissions of the parties, which are set out in the joint submissions bundle filed on 17 February 2022.

The owners' application

1. The issues to be determined on the owners' application are: 1. Is the agreement between the parties a costs plus contract? 2. Have the owners lawfully terminated the contract entitling them to the cost of completion? 3. What are the reasonable and necessary rectification costs? 4. If the owners have lawfully terminated the contract what are the reasonable and necessary completion costs? 5. Should the builder be ordered to pay the owners' costs?

The builder's application

1. The issues to be determined in the builder's application are: 1. What is the fair and reasonable value of the contract works carried out? 2. Is the builder entitled to payment in accordance with the principles of quantum meruit? 3. Is the builder entitled to payment for moneys owed under contract at the time of termination?

Is the contract a cost plus contract?

1. I have referred to the affidavit of Ty Gosling. Mr Gosling deposes that he said to the builder during a conversation in about June 2019 in which the parties spoke of a generalised scope of work in the following terms:
2. "We want to do the renovations to replace all of the tiling on the bottom floor, put in a new kitchen, to make the bottom area more of an open plan, put in a new ensuite, new carpet and also carry out some renovation to the exterior of the property…we have a budget of around $300,000".
3. It is the owners' submission that this conversation constituted a contract to perform a specified scope of work for a fixed price.
4. For the following reasons I find that the parties entered into a cost plus contract.
5. First there was no agreed scope of work between the parties and the initial agreement to renovate the kitchen and floor covering of the residential premises clearly changed after the work commenced and after further instructions were received from the owners from time to time.
6. It is more likely than not on the balance of probabilities that the builder agreed to an estimated cost of $300,000 but was unable to fully quote a fixed price contract in the absence of any plans and specifications being provided by the owners. The parties agree that a rough sketch of the premises was the only document exchanged between the parties at the formation of the contract.
7. The invoices adding an overall margin of 15% are indicative of a cost plus contract.
8. The builder did not issue progress payments as are included in all fixed price contracts, but rather the builder issued invoices for payment after an instruction from the owners to perform specific tasks when was carried to completion.
9. The fact that the owners paid $380,000 approximately to the builder, is contrary to the owners' assertion that the parties entered into a fixed price contract for $300,000.
10. There was no agreement to finish the works within three months. It is open to the Tribunal to infer that the owners were content to live in the premises for an extended period of time, in circumstances where the builder erected a mobile laundry and kitchen area under the exterior pergola and the family resided in the premises while the renovations were ongoing. I draw an inference from the fact that the owners were prepared to live in the premises with outside cooking facilities that the parties had not agreed to a fixed term of three months. Further there is no complaint made to the builder in writing that the terms of the contract had been breached by reason of a delay of the building work. There is certainly no evidence that there was an agreement that time was of the essence.
11. For these reasons I am satisfied that the parties entered into an oral do and charge, or "cost plus" contract.

A cost plus contract

1. The owners seek damages for incomplete work in the sum of only $284.44.
2. By reason of the finding that the parties entered into a cost plus contract, the owners' entitlement to damages for incomplete work falls away.
3. Further in the context of these applications it is not relevant to determine how the contract ended. If a claim for damages for incomplete works arises out of termination of the contract prior to completion, then the circumstances of the termination may be important in relation to incomplete work as, if the contract was repudiated by the builder then the owner will be able to seek damages for any costs associated with completing the works, however if the owner repudiated the contract then no such claim can be made: Torua Pty Ltd v Sariklis [2012] VCAT 144.
4. The issue of repudiation and or termination has not been pleaded or particularised by either party. Both parties' pleadings are silent on the issue but the evidence states that the builder ceased work on the premises in or about August 2020 after the owners refused to pay further outstanding invoices.
5. Insofar necessary I am satisfied that the contract ended by agreement of the parties in or about August 2020. Neither party has alleged that the other party repudiated the contract or evinced an intention to no longer be bound by the terms of the contract. In these circumstances the contract between the parties does not preserve a continuation of any obligations on the parties following the end of the agreement. Any accrued rights during the term of the contract are preserved. In so far as the owners' claim is for incomplete works, the Tribunal is not satisfied that under a costs plus contract such a claim can be warranted once the rights and obligations of the parties have been determined.
6. The builder is entitled to be paid for the work he performed until the termination of the contract in August 2020, albeit only on a "just and equitable" basis pursuant to s94 (1A) of the Act. Effect of failure to insure residential building work 94 EFFECT OF FAILURE TO INSURE RESIDENTIAL BUILDING WORK (1) If a contract of insurance required by section 92 is not in force, in the name of the person who contracted to do the work, in relation to any residential building work done under a contract (the "uninsured work" ), the contractor who did the work-- (a) is not entitled to damages, or to enforce any other remedy in respect of a breach of the contract committed by any other party to the contract, in relation to that work, and (b) is not entitled to recover money in respect of that work under any other right of action (including a quantum meruit). (1A) Despite section 92(2) and subsection (1), if a court or tribunal considers it just and equitable, the contractor, despite the absence of the required contract of insurance, is entitled to recover money in respect of that work on a quantum meruit basis.
7. I note that the issue of "incomplete" work is relatively unimportant in this case as the owners' expert states on page 2 of his report (CB 378) that "I have estimated the value of incomplete works as $284.44 and the value to rectify defective works is $88,119.68."

Are the owners entitled to damages for defective work and if so, in what sum?

1. The owners rely on the reports of Dr Cunniffe dated 30 March 2021 to establish that the work is defective (Exhibit 1 Tab 5).
2. The builder relies on the report of Tyrrells Property Inspections Pty Ltd under the hand of Mr Nisbett of 2 June 2021 (Exhibit A page 1).
3. The experts prepared a Joint Experts' Scott Schedule dated 27 July 2021 (tab 7).
4. In their claim for damages for defective work, the owners have established the following items.

Item 1 - $187.38 - (item c1 in the joint report) prepare and paint alfresco cladding and moulds.

1. I refer to the joint report and the submissions by the owners. Dr Cunniffe opines that that the cladding on an alfresco extension was unpainted and that it formed part of the contract works because the rest of the renovation was unpainted. The question whether or not the paint to the alfresco cladding formed part of the contract is not the domain of the expert but forms part of the ultimate question before the Tribunal: what where the terms and the scope of the contract?
2. Both parties' experts agree that this is incomplete work. As I have found that the parties entered into a cost plus contract, the owners cannot claim damages for incomplete work (see my reasons for decision at [26] to [29] above). The owners are not entitled to damages unless it is found that this item can be more readily identified as a defect, rather than incomplete work. But that is not alleged by Dr Cunniffe.
3. The owner's claim for item 1 is a claim in respect of incomplete works, it is not a claim for compensation for breach of contract or a claim for damages for defective work under s18B of the Act. The measure of compensation claimed was calculated by the owners (and their expert) by reference to the cost to complete. As both experts have agreed that this is incomplete work, I am not satisfied that the owners are entitled to claim this amount and it is dismissed.

Item 2 - (item R1 in the joint report) -$0 Support load bearing wall in family room

1. No damages are claimed in respect of this item. The owners concede that the beam was in place when the builder commenced the work.

Item 3 - $13,134 -support the load bearing wall in the pantry

1. Dr Cunniffe's report observed that a large pantry has been added to the kitchen area. The expert does not state that the stud wall in the pantry is a load bearing wall. The expert merely generically states "the internal walls are load bearing walls" and that "the internal walls are loadbearing wall (sic) supporting first floor walls and roof". There is no explanation in the Cunniffe report why the expert concludes that the stud wall at the back of the kitchen is a load bearing wall or why it requires support. Dr Cunniffe did not inspect the wall, and instead relied on a photographs provided by the owners.
2. It is submitted by the builder that Dr Cunniffe's opinion should be given little weight because the builder inspected the original house plans and they support a conclusion that the existing wall, at the back of the kitchen and since removed, was not a load bearing wall. I accept that submission, a copy of the plans was provided. I accept and prefer the submission of the builder that there is no evidence provided to support the generalised contention that the stud wall is a load bearing wall or that it requires support. I accept the submission that there is no sagging or cracking to the ceiling that would support a contention the wall requires support. Had Dr Cunniffe attended the premises it may be that the usual observations would have been recorded: for example, whether the stud wall runs perpendicular to the floor joists or any other markers that would support the opinion the wall is loadbearing or that it requires support. As the expert did not inspect the wall and as I am satisfied that he has not actually expressed an opinion that this wall is a load bearing wall or why it requires support, I am satisfied that the expert has not actually established that this wall is defective. I conclude that the owners have not discharged their onus of proof in respect of this defect and I decline to make an award.

Item 4 - R2 in the joint report- Remove adhesive marks - $710

1. Dr Cunniffe's opinion is that adhesive marks are present on the textured wall tiles at the ground floor. Mr Nisbett for the builder agrees that these marks are present and states "I agree that this is incomplete work". Dr Cunniffe does not state this is incomplete work, to the contrary, he states that "many attempts had been made by the owner and cleaners to remove the marks." On balance the unsuccessful attempts by the owners to remove the marks leads me to conclude that these are permanent marks that have damaged the tiles and are more adequately described as a defect. I am satisfied that the marks represent a breach of s18B of the Act, and that $750 for a commercial cleaner is a reasonable amount to rectify the defective work. I make the award accordingly.

Item 5 - Item R3 in the joint report - realign and match showerheads - $783

1. Dr Cunniffe observes that the showerheads in the ensuite do not match and that one showerhead is out of alignment. Mr Nesbitt for the builder does not agree that the showerhead is out of alignment "because I am instructed that the owner gave that location to the builder". It is clear from the photographs that the showerheads do not match and are not aligned. The photographs, supported by Dr Cunniffe's opinion, speak for themselves. I reject the contention that the builder installed the showerheads in this unsightly fashion because he was instructed to do so. Even if he had "been instructed by the owner", in my view the builder should have pointed out to the owner that such a placement would not be conform with good building practice, and if necessary obtain from the owners instructions in writing pursuant with the requirements of s18F of the Act. On balance I find the defect established and find that the $783 claimed is a reasonable amount to rectify the defective work.

Item 6 - patch and paint all dents - $1765

1. The owners seek damages to rectify dents and scratches in the architraves and skirtings in the sum of $1765. It is Dr Cunniffe's opinion that there are numerous dents in the architraves, skirtings, mouldings and trims and that this is defective work. Mr Nisbett agrees that there are defects but says that a painter was engaged by Mr and Mrs Gosling. The question to be determined is therefore whether the rectification of skirting boards and architraves formed part of the scope of work agreed between the parties as part of the cost plus contract.
2. I refer to the affidavit of Andrew Gibbs of 26 May 2021. On balance I find that the affidavit of Mr Gibbs is persuasive and gives weight to the builder's version of events. Mr Gibbs states that "the property is an old and large home, the [owners] did not want to replace all the gyprock and skirting to the entire home. … Instead of gyprocking the whole property I recall the [owners] hired a painter named Han to patch and repair any damaged plasterboard. This was separate to the works I organised and supervised. This was therefore not part of the works undertaken by Durastyle or the Contractors and Durastyle is not responsible [for the work]".
3. Mr Gibbs was cross examined. On balance I am not of the view that the cross examination has impugned his version of events. He deposes that he tried to contact Mr Han the painter but that the painter was not able or willing to give a statement on the builder's behalf as the painter was retained by and on behalf of the Goslings. I accept this also. Although the account of the conversation between Mr Gibbs and Mr Han is hearsay, as the rules of evidence do not apply, I accept the evidence and it is admitted and was not objected to. Finally I cannot locate nor was I taken to any evidence in the affidavits of Mr and Mrs Gosling that the architraves and skirting boards formed part of the contract work. Lastly, it was open to the owners' to obtain an affidavit of Mr Han, in the event Mr Han supported their version of events, but no evidence has been obtained from the painter. I infer that had the owners obtained a statement from Mr Han, it would not have supported their case. On balance, I am satisfied that the architraves and skirting boards did not form part of the scope of work agreed between the parties and on balance I reject the owners' claim for damages in respect of this defect.

Item 7 (Item R5 in the joint report) - Unblock and correct the upstairs toilet plumbing.

1. The exact words in the Cunniffe report are that he has "reason to believe the sanitary plumbing was not correct" and "I have allowed for a plumber to be fully investigate (sic) the seals and pipework relating to the toilets".
2. In my view this is not sufficient to establish that the builder has carried out defective work. I am not satisfied that the expert has expressed an opinion that the work performed by the builder is defective.
3. Even if Dr Cunniffe had stated that a defect exists, (as opposed to stating he has reason to believe it exists), the mere finding of a defect does not establish a breach of the statutory warranties under section 18B of the Act which is implied into every contract for residential building work. Something more is required, other than to state that the expert had reason to believe the plumbing was not correct and further investigation is required. The nature of the evidence required to establish a breach was considered by the Appeal Panel in Deacon v National Strategic Constructions Pty Ltd; National Strategic Constructions Pty Ltd v Deacon [2017] NSWCATAP 185 (Deacon).
4. The Appeal Panel considered that although objective standards such as Australian Standards, the Building Code of Australia and the Guide to Tolerances are of significant relevance in establishing whether work has been performed in a proper and workmanlike manner (Wheeler v Ecroplot Pty Ltd [2010] NSWCA 61 at [10]), the absence of such evidence does not automatically mean a homeowner has failed to establish a breach of statutory warranty. The reverse applies also. Even if evidence of a defect was established, which it is not in this instance, this does not of itself establish a breach by the builder of the statutory warranties.
5. In the Appeal Panel's view, the relevant principle was succinctly stated by Senior Member Goldstein in G MacFayden and Anor v G Tadrosse [2014] NSWCATCD 194 at [46] as follows: …[E]vidence that work does not comply with the Building Code of Australia would establish a basis for a finding that sub section 18B(c) of the Act has been breached. Evidence of the details in which work does not comply with the contractual plans and specifications would form the basis for a finding that sub section 18B(a) of the Act has been breached. Evidence of work not being carried out in a proper and workmanlike manner would in my view involve identification of the work in question, a statement of how the expert would expect it to be carried out in in a proper and workmanlike manner and then identification of the factors which establish that the way in which the work has been carried out falls short of it being carried out in a proper and workmanlike manner. Evidence of this nature, if accepted, would form the basis for a finding that sub section 18B(a) of the Act has been breached.
6. I am satisfied that the opinion expressed by Dr Cunniffe falls short of establishing a breach of statutory warranties and the claim is dismissed.
7. In light of dismissal of the owners' claim for damages in respect of this item it is not strictly necessary for me to arrive at a finding whether or not the toilet in the upstairs bathroom formed part of the scope of work agreed between the parties. However for the sake of completeness and to give finality to the parties, I have considered whether this item formed part of the agreed scope of work. The builder submits that the ensuite toilet upstairs did not form part of the scope of work. It is the evidence of Mr Gibbs that the upstairs toilet had previously caused problems and was the defective work of a plumber who had previously been engaged by the owners.
8. The builder states that he was not engaged to rectify the previous' plumber's work but was only engaged to install electricity to the upstairs bathroom. Mr Gosling was cross examined about emails he had sent to the plumber engaged by the builder: Mr Gosling conceded in the email that the renovation of the upstairs bathroom was partially renovated before the builder attended the site. A problem with the toilet was identified during the work and the builder's plumber was asked if he could assist. The plumber, engaged by the builder, warned that the fall in the bathroom was inadequate and any work fixing the problem would involve removing the ceiling. Mr Gosling instructed the plumber: "No just get it unblocked and fixed as best you can." It is submitted that the plumber "warned Mr Gosling about future potential problems" but Mr Gosling was adamant that the builder's plumber should not cut access to the ceiling to rectify the fall. It is submitted by the builder that "the very thing that the plumber forecast would happen came indeed to pass, the toilet got blocked and is now listed by the homeowners' expert as a defect". Mr Gosling denies he instructed the plumber not to cut the ceiling and stated that he had instructed the plumber to cut the ceiling and that the plumber had acted on the instruction, but had failed to fix the fall, and that the toilet was then blocked.
9. I find the following facts on the evidence. A previous builder/plumber had renovated the bathroom and installed the toilet. The toilet is slow to flush and a smell is present. The owner instructed the builder (or his subcontractor) to fix the problem. The parties had a conversation about cutting the ceiling and fixing the fall. The builder's subcontractor may or may not have cut the ceiling. Either way, the problem remains, the toilet is easily blocked. There is inconclusive evidence that the builder (or his subcontractor) did any work rectifying the toilet, or of the precise nature of the work; or that the builder received payment for the work; or that the builder carried out defective work, as opposed to the builder before him. On balance I am not satisfied that the owners have discharged their onus of proof. The owners have not established that they instructed the builder to cut the ceiling, or that the builder cut the ceiling or that any action by the builder or his subcontractor is causative of the blocked toilet.

Item 7 (R6 in the joint report) - Replace water damaged and scratched doors - $2941.50

1. Dr Cunniffe states "I observed that doors had sustained water damage and had scratches on them". The mere observation is not sufficient to establish that the builder performed the work or that he performed it defectively. The builder denies he installed the doors or that he caused the doors to be wet or damaged. The builder denies that the installation of the doors formed part of the scope of work agreed by the parties. I have not been taken to any part of the affidavits relied upon by the owners that is said to establish that the doors were included in the scope of work. Dr Cunniffe's report at page 21 (CB 387) records a list of works allegedly carried out by the builder (as instructed by the owners). It makes no mention of the doors. I repeat the paragraphs set out at [51] above and find that the owners fall short of establishing that the builder was responsible for the doors or caused the doors to be damaged.

Item 8 Install matching trim in wardrobes, the item is conceded and the Tribunal awards $250 for this item.

Item 9 - lower oven to correct height

1. This item was hotly contested between the parties. Dr Cunniffe observed the wall mount "was set unusually high and at an unsafe level". The evidence of the builder is that the oven was installed to the plans and specifications provided by Rositano Kitchen and Joinery and built and installed as approved by Mrs Gosling. The owners' submissions state that "the oven and microwave as installed have been reversed" but that is not established on the plans. I do not accept Mrs Gosling's assertion that the builder and she agreed to lower the oven as there is no contemporaneous evidence to support this contention. Further, the owners' expert does not state that the statutory warranties have been breached. There is no mention of Australian Standards or Tolerances that may apply to installations of wall mounted ovens. On balance there is no identification of factors established that the builder did not carry out work in a proper and workmanlike manner.
2. Oven light - this item is covered under manufacturer's warranty and is withdrawn.

Item 12 (Item R10 in the joint report) Correct wiring - agreed at $81

Item 13 (Item R11 in the joint report) - repair ponding in an ensuite bathroom liability agreed - the Tribunal awards $1212.50.

Item 14 (Item R12 in the joint report) - $745

1. The experts agree that the liner grates in the two bathrooms cannot be removed and that this is a defect.
2. The experts disagree about the cost to rectify this defect. Mr Cunniffe conceded in cross examination that the grates can be fixed for $120 and I make the award accordingly.

Items 15 and 16 - replace drummy tiles in garage, entrance and sunken lounge.

1. Dr Cunniffe states that over 20% of tiles were drummy or loose. Mr Nisbett disagrees and states that there was no evidence of loose grout, cracked or loose tiles. The claim is withdrawn, see submissions page 11 paragraph 91.

Item 17 (item R15 in the joint report)- Patch and paint damaged plasterboard

1. I have set out the dismissal of the claim for damages to patch and paint architraves at [44] above. I have found that Mr Han was retained by the owners directly to paint over doors and existing plaster. It is submitted that a "painter cannot be responsible for poor plastering." Mr Nisbett simply states that the dents are the responsibility of the painter. On balance I agree with the owners' submissions that dents are not caused by a painter, however there is no evidence contained in the affidavits of Mr and Mrs Gosling that the builder was retained to replace, install or rectify plaster boards. Mr Gibbs denies it was within the scope of work to replace plasterboards. On balance I am not of the view that the owners have discharged their onus of proof in respect of this item.

Item 18 (item R16 in the Joint Report) - provide power to a heated toilet seat-

1. This item is withdrawn see page 12 paragraph 99 of the written submissions

Item 19 - (item R17 in the joint report) - silicone all hard corners around the house.

1. The experts agree that the corner joints between the tiles and the skirting boards have not been siliconed throughout the house and that this is a defect.
2. Neither expert was cross examined about quantum. As best I can I assess the damages for this item, I have had regard to the assessment of Dr Cunniffe at page 46 of his March report. The assessment of $850 seems reasonable and while I note that the owners submit that only $715 should be awarded, $850 appears to be a reasonable amount based on the expert opinion of Dr Cunniffe.
3. Item 20 - 23 are conceded by the builder (see reply submissions paragraph 64). I make an award of $535 in accordance with the joint report, see page 22 of the written submissions for the builder and page 13 of the reply submissions. I make the award in accordance with the agreement of the parties - $535.

Item 24 - (R22 in the joint report) replace the laundry floor tiles with fall to waste - cost to install a waste - $5479.85

1. As expressed by Dr Cunniffe in the joint report, the tiles have been laid in such a way that they do not allow for an adequate fall to waste as AS3740 requires. Mr Nisbett on behalf of the builder disagreed but the report does not set out the basis for his opinion. Whether there is an adequate fall is a matter of fact and as Mr Nisbett does not oppose Dr Cunniffe's opinion, I accept that the fall is inadequate. In his report Dr Cunniffe sets out the cost to install a fall is $4579.85 (CB 406). Mr Nesbitt agreed on an "if found" basis that $4331.98 should be accepted but does not set out why he disagreed with Dr Cunniffe's estimate. I have had regard to the builder's submissions on page 22. It is essentially asserted that the tile had laid a bit of sand and cement for the floor tiles to ensure the required fall to the laundry floor waste. However, it is submitted Mr Gosling instructed that he did not want a step up from the floor outside the laundry which would have been created in providing the necessary fall to the laundry floor waste. I reject this as a defence to a claim for damages for breach of statutory warranties under section 18B of the Act. If such an instruction was given it was incumbent upon the builder to explain to the owner in writing that the work would not be conform with AS3740 and would not be good building practice. As there is no written instruction from the builder to the owner that would amount to a defence under section 18F of the Act, I reject the builder's explanation. As it is not in dispute that the fall is inadequate I find the builder liable for defective and incomplete work and I make an award as estimated by Dr Cunniffe. I find the cost estimate reasonable under the circumstances and award $4579.85.

Item 25 - install missing power point

1. The experts agree an amount of $98 and I make the award accordingly.

Item 26 (Item R24 in the Joint Report) - Build Ramp to Garage

1. In the joint report Dr Cunniffe expresses the opinion that when tiles were laid in the garage, a ramp should have been installed. Mr Nisbett agrees that there is no ramp but says that this is incomplete work and not defective work. It is submitted that when the weight of a car is placed on the tiles the tiles will break and that builder's failure to install a ramp is therefore defective work. The builder relies on the written submissions on page 22 and states "this is simply work not undertaken by the builder and is not a defective item but an incomplete item." The builder did not do the work and did not charge for the work and at the time of the inspection there were no broken tiles and any claim for defective or incomplete work should be rejected.
2. I agree with the builder's submissions. There is no allegation that the builder built the ramp or that work he performed is defective by reason of the missing ramp. It is clearly incomplete work. I refer to the reasons set out at paragraphs [31] above. The contract between the parties, being a cost plus contract, does not preserve a continuation of any obligations on the parties following the end of the agreement. Only accrued rights during the term of the contract are preserved.
3. In so far as the owners claim damages for incomplete works I am not satisfied that under a cost plus contract such a claim can be maintained once the rights and obligations of the parties have been determined. The owners have not established a claim for damages for incomplete work in respect of the ramp.
4. The owners' claim for damages for defective work, and not incomplete work is summarised as follows: Defects Item 4 R2 $710 Item 5 R3 $783 Item 8 R6 $250 Item 12 R10 $81 Item 13 R11 $1212.50 Item 14 R12 $120 Item 19 R17 $850 Item 20 R18 Item 21 R19 Item 22 R20 Item 23 R21 $535 Item 24 R22 $4579.85 Item 25 R23 $98 Total $9219.35 Preliminaries15% $1382.90 Subtotal $10,602.25 20% margins $2120.45 Subtotal $12,722.70 GST 10% $1272.27 Total $13,994.97

The owners' loss of value claim

1. I refer to the document at tab 7 of the owners' folder entitled "Property Assessment Report of a Freehold Residential Property to Assess the Likely Reimbursement for Costs to make good completed building works which have no Home Warranty Insurance" dated 25 March 2021 prepared by a Mr Handley of Searchfield Properties Pty Ltd. Mr Handley is a certified practicing valuer, and a licensed real estate agent. The writer did not provide a curriculum vitae and there is no expert code of conduct attached to the report and I therefore do not give the report much weight. Mr and Mrs Gosling rely on the opinion of Mr Handley. It is Mr Handley's opinion that as a consequence of the incomplete and defective work and the builder's failure to obtain homeowners warranty insurance for the property, the property has suffered a diminution in value "equal to the cost to makegood plus a contingency sum of 30%". Mr Handley's report was tendered in the proceedings without objection and he was not cross-examined. Mr Handley's opinion therefore must be admitted into evidence. The effect of Mr Handley's opinion is that in the event the Tribunal finds that the value of the defective work is $56,212.08 as was initially claimed by the owners, a further sum equal to 30% of the damages for defective work should be added, by way of damages. In his report Mr Handley assumes that the value of defective work is $88,400 and determines that the loss of value sum is represented by a 30% "premium" which he applies to the sum of the defective work. The owners submit that "as a consequence of the incomplete and defective work and builder's failure to obtain Home Warranty Insurance for the Jolly Street, Castlereagh property, the property has suffered a diminution in value equal to the cost to make good plus a contingency sum of 30%."
2. The builder's submissions state that if the Tribunal finds items are defective and allows an amount that is the alleged loss of value in the property and nothing further should be awarded as compensation. Adding a 30% premium or contingency onto the alleged loss of value has no sound basis in fact or law. The builder relies on its written submissions to assert that the building experts have already allowed 15% preliminaries and overheads and 20% margin plus GST. The 30% loss of value claim by Mr Handley is speculative and amounts to a windfall to the homeowners and nothing more. I agree with the builder's submission. I find that there is no basis in fact or law to add to make an award for loss or damage for a further 30% as a "contingency". There is no evidence before me that the failure to obtain homeowners warranty insurance has resulted in a 30% loss of value calculable by reference to the amount of damages awarded for breach of statutory warranty. There is no evidence to support a contention that the owners are forced to sell at a discount by virtue of the fact that the builder has failed to obtain home owners' warranty insurance. I have not been provided with any caselaw that would support a reduction in value on the basis of Mr Handley's assessment of 30%. Nor does Mr Handley provide an opinion that in his experience as a licensed real estate agent, generally homes that have undergone renovations in the last six years, but are sold without home owners' warranty insurance, suffer a diminution in value in the open market. I reject Mr Handley's contention that a 30% contingency must be awarded, referable to any amount awarded for defective work, and I dismiss this head of damage.

Quantum meruit

1. The builder claims he is entitled to payment in the sum of $73,013.95 on a quantum meruit basis see submissions bundle on page 14, of the written submissions dated 17 February 2022.
2. I have taken into account the pleadings, the affidavit of Mr Gibbs and exhibits A and One, as well as submissions of counsel in the joint agreed submissions folder.
3. In respect to the entitlement to a claim for quantum meruit the builder must establish: the work involved must be outside the work required under the contract; the owners must have knowledge of the variation as it was executed; the owners knew that it was outside the contract; the owners knew that the builder expected to be paid; and the builder has evidence that the amount claimed was fair value. (Nayack v Rockwell Constructions Pty Limited [2017] NSWCATAP 18 at [30]).
4. The builder's submissions are contained at pages 8 and following. It is submitted that because the parties were socially acquainted that the builder was not required to provide homeowners warranty insurance. I reject this submission. The builder failed to provide a written contract contrary to the writing provisions of the Act and failed to comply with section 92 of the Act. The nature of the relationship is irrelevant and cannot be a defence to non-compliance with the builder's statutory and license requirements. Insofar necessary I am satisfied that the breach of the Act is established and it must follow that the builder can only recovery any sum outstanding on a restitution basis and only if such recovery is just and equitable (see s94 of the Act).
5. The builder cites the decision of Urban Construction (NSW) Pty Ltd v Brett Shearer & Anor [2015] NSWCATCD 9 and the well-known authority of Eddy Lau. However, unfortunately I am not addressed on the issue of quantum at all. The critical invoices are not in evidence. Mr and Mrs Gosling provided detailed affidavit evidence attaching many hundreds of invoices that were provided by the builder during the course of the work and may be relevant to some of the invoices the builder says remain outstanding. However no attempt was made by the builder to identify the relevant third party invoices that were not paid. As is cited by Senior Member Goldstein in Urban, "the courts task is not to assess damages for breach of contract but to ascertain what is fair and reasonable compensation for the benefit of the services performed and accepted actually or constructively by the recipient…. Actual cost should not be ignored…any price or commission agreed between the parties may be received as evidence of the value of the parties themselves put on the services performed even where the services have not been totally performed, but the agreed amount is not determinative of the matter."
6. The evidence tendered by the builder is scant. I refer to the builder's affidavit at paragraph 16 which merely summarises in a table the invoices he claims remain unpaid.
7. Quantum meruit claims arise where a builder has performed work under unenforceable provisions of a contract, and it would be unjust for the homeowner to retain the benefit of the work done without paying for the reasonable value of the work.
8. Relevant principles have been discussed in a plethora of decisions, including Suecha Pty Ltd v VSD Glass & Timber Pty Ltd [2020] NSWCATAP 170; Woodward v Warwick Green Building Pty Ltd [2021] NSWCATAP 210; Rekrut and Scott v Champion Homes Sales Pty Ltd [2017] NSWCATAP 187; Roude v Helwani [2020] NSWCA 310; Rice v JR and SD Farmer t/as Urban Bespoke Homes [2020] NSWCATAP 208; and Paraiso v CBS Build Pty Ltd [2020] NSWSC 190.
9. The principles can be summarised as follows:
10. If the quantum meruit claim involves an unenforceable variation, the builder must prove the homeowner had actual knowledge of the additional works; that the works were outside the contract; and the builder expected to be paid for the additional work.
11. In respect of all quantum meruit claims, the onus is on the builder to establish the reasonable value of the work that performed and accepted by the homeowner. This is a question of fact. Relevant evidence will include any invoices/receipts of the builder; time sheets of the builder; rates under the contract for labour and materials; and expert evidence that analyses the work actually performed and the reasonable cost of such work.
12. The amount recoverable in a quantum meruit claim cannot exceed the amount that would have been payable under the contract for that component of the work.
13. In this case I have not been provided with any evidence by the builder that establishes a claim for restitution. The builder's invoices have not been tendered; the builder has not identified the labour rates charged nor does he particularise the work that was performed by the builder to support each invoice; nor is there any evidence that I have been taken to that speaks to the amount spent by the builder on materials relevant to the outstanding invoices. The evidence of the builder does not contain any documents sufficient for the Tribunal to be able to identify what work was done by the builder and the value of such work.
14. The submissions assert that the invoices attached to the owners' affidavit show that the builder purchased household goods on behalf the owners from time to time. However, other than to list the purchases on page 14, it is not attempted to show which of those remain unpaid or are relevantly linked to an outstanding invoice rendered by the builder for payment by the owners. There is no analysis of the hundreds of third party invoices attached to the owners' affidavits, or any attempt to identify which of those third party invoices may relevantly be linked to the builder's unpaid invoices, although most of the invoices attached appear to span the relevant time period between 19 March and 25 June 2020. The owners were not cross examined on the third party invoices in their evidence.
15. I note that the builder sought to tender a bundle of third party invoices on day two of the hearing.
16. The hearing was listed for hearing on 2 September 2021. On the morning of the hearing the builder sought to tender an affidavit of Andy Gibbs dated 2021 attaching two hundred invoices. The owners objected on the basis that the bundle was served on the morning of the hearing and as the owners had no opportunity to reconcile hundreds of invoices. After argument from both sides I ruled that the evidence was not admissible. I stated that I would deliver reasons in writing and these are those reasons.
17. The builder pleaded a claim in quantum meruit in December 2020. The parties were directed to exchange evidence and the builder's evidence was due on 30 March 2021. At a directions hearing on 22 June 2021 the builder indicated he had filed and served all documents he sought to rely upon.
18. The builder failed to file and serve lay or expert evidence in support of its quantum meruit claim.
19. The application to adduce fresh evidence on the morning or the hearing gave rise to a procedural unfairness as the respondents were unable to scrutinise the builder's affidavit and bundle of invoices. To admit the late affidavit of Mr Andy Gibbs was contrary to the just, quick and cheap resolution of the issues between the parties, see s36 of the Civil and Administrative Tribunal Act 2013, in circumstances where the builder had been directed to file and serve its evidence more than six months prior and confirmed in April that its evidence in chief had closed. The builder did not seek an adjournment.
20. The Tribunal pointed out to the legal representatives of the builder that the two hundred invoices that were attached to the builder's affidavit, appeared to have been tendered by the owners and were attached to the owners' affidavits, exhibit A. The owners conceded that any submission using the owners' invoices in support of the builder's claim would not be objected to. No attempt was made to quantify the builder's quantum meruit claim by reference to the owners' invoice bundle which would have been admissible.
21. At the conclusion of the hearing on 1 September 2022 the builder did not seek to renew the tender. During the adjournment period between September 2021 and February 2022 no attempt was made to file an application for miscellaneous orders, to seek an order from the Tribunal to renew the tender. In the absence of such a renewed application the Tribunal excluded the evidence.
22. I am satisfied that there is no evidence that the builder's claim represents fair and just compensation for the enrichment of the owners received because the value of the work the builder performed is not independently verified or verifiable. Mr Gibbs says that that the total value of the works is $477,055.57 and it is not in dispute that he has been paid $398,727.37. Mr Gibbs has led no evidence that the builder has performed work over and above the value of $398,727.37 or that the owners' have been unjustly enriched by that or any other amount.
23. For these reasons I dismiss the builder's application.

ORDERS

1. I make the following orders. 1. In HB 21/14341 Durastyle Homes Pty Ltd is to pay $13,994.97 to Ty Allen and Deanne Vivienne Gosling immediately. 2. HB 21/02359 is dismissed. 3. I order the builder to pay the owners' costs of the applications on the ordinary basis as agreed or assessed.

Costs

1. The owners were successful in both applications and costs ordinarily follow the event.
2. I order the builder to pay the owners' costs of the applications on the ordinary basis as agreed or assessed.
3. In the event either party applies for different costs orders, the order for costs made in paragraph (3) above ceases to have effect.
4. For any different application for costs, the following directions apply to that application: 1. The applicant for costs (costs applicant) is to file and serve any evidence and submissions on costs within 14 days of the date of publication of these orders. 2. The respondent to the costs application (costs respondent) is to file and serve any evidence and submissions in reply within 14 days of the date of publication of these orders. 3. The costs applicant is to file and serve any submissions in reply within 21 days from the date of publication of these orders. 4. The submissions of the parties are to include submissions about whether an order should be made dispensing with a hearing of the costs application pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013. 5. In the event that both parties apply for a different costs order, an indexed and paginated bundle of all costs submissions is to be provided to the Tribunal at the end of the submission period.

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: 26 August 2022