Filliston v Quickspec Modular Pty Ltd

NCAT Consumer and Commercial|2022-07-22

Outline

After initially claiming $22,961.70, an amount of $86,908.66 was sought at the hearing in a claim for damages arising from roofing work on a property in Woolgoolga. The homeowner sought a money order against a company and an individual.
Having considered the evidence and submissions, the Tribunal determined that the owner was only entitled to an order against the individual and not the company, and that the recoverable amount was $34,360.19.

History of the proceedings

On 26 October 2021 a homeowner (the applicant) lodged an application which named both Quickspec Modular Pty Ltd (the first respondent) and Benjamin Ralph Blanchette (the second respondent) as respondents, claiming $22,961.70 in relation to work done on the roof of her home.
At the first directions hearing, on 16 November 2021, the parties were directed to provide, to the Tribunal and the other party, the documents upon which they wished to rely at the hearing: by 30 November 2021 in the case of the applicant and by 14 December 2021 in the case of the respondents. There was no appearance for either respondent on that occasion. It was noted that a revised total of $28,061.70 was claimed: (1) $22,961.70 for rectification work, as per a quote, (2) $1,600 for removing and refitting the solar hot water facility, and (3) $3,500 for painting works due to the damage and leaking skylights. The owner was given leave to amend her claim by 30 November 2021.

Hearing

Due to the pandemic, the hearing was conducted by telephone, with the applicant and her solicitor, Mr Campbell, on one line and Mr A Blanchette (Mr Blanchette), a director of the first respondent, and Mr B Blanchette (the second respondent) on a second telephone line. The documents which were admitted as evidence or marked for identification during the hearing were as follows: Exhibit A Applicant's documents, received on 16 November 2021 Exhibit B Report of Mr Dunstan, dated 14 July 2022 Exhibit C Respondents' documents, emailed on 13 April 2022 Exhibit D Quotation and Agreement, both dated 9 June 2020 MFI 1 Report of Mr Dunstan, dated 13 December 2012
The applicant's expert, Mr Dunstan, was questioned by both the Mr Blanchette and the second respondent when he was added to the hearing on a third telephone line. While the respondents did not provide any witness statement, statutory declaration, or affidavit, given the nature of what was set out in Exhibit C, cross-examination of the second respondent was permitted. Following the questioning of witnesses, closing submissions were made. The usual sequence of applicant then respondents then applicant in reply was followed so that each party had an opportunity to speak in support of their own case and in response to the case of the other party.

Jurisdiction

It is clear these proceeding relate to residential building work, that the definition of "building goods or services" in section 48A of the Home Building Act 1989 (HBA) is satisfied. As these proceedings involve a claim by the owner for an amount of money, they involve a "building claim" within the meaning given to those words by section 48A.
As the subject building work was carried out during 2020 and the application was lodged on 26 October 2021, these proceedings have been commenced within time. The amount claimed exceeds the lower limit of $5,000 set by clause 2(3)(a) of the HBA and clause 12 of the Home Building Regulation 2014 and is below the upper limit of $500,000 set out in section 48K of the HBA. Accordingly, the Tribunal has jurisdiction under the HBA.

Relevant law

By reason of subsection 18B(1) of the HBA the following statutory warranties form part of the building work which is the subject of this application: (a) a warranty that the work will be done with due care and skill and in accordance with the plans and specifications set out in the contract, (b) a warranty that all materials supplied by the holder or person will be good and suitable for the purpose for which they are used and that, unless otherwise stated in the contract, those materials will be new, (c) a warranty that the work will be done in accordance with, and will comply with, this and any other law, (d) a warranty that the work will be done with due diligence and within the time stipulated in the contract or, if no time is stipulated, within a reasonable time, (e) a warranty that, if the work consists of the construction of a dwelling, the marking or alternations or additions to a dwelling or the repairing, renovation, decoration or protective treatment of a dwelling, the work will result, to the extent of the work conducted, in a dwelling that is reasonably fit for occupation as a dwelling, (f) a warranty that the work and any materials used in doing the work will be reasonably fit for the specified purpose or result, if the person for whom the work is done expressly makes know to the holder of the contractor licence or person required to hold a contractor's licence, or another person with express or apparent authority to enter into or vary any contractual arrangements on behalf of the holder or person, the particular purpose for which the work is required or the result that the owner desires that work to achieve, so as to show that the owner relies on the holder's or person's skill or judgment.
Section 18F, so far as is presently relevant, provides: (1) In proceedings for a breach of a statutory warranty, it is a defence for the defendant to prove that the deficiencies of which the plaintiff complains arise from: (a) instructions given by the person for whom the work was contracted to be done contrary to the advice of the defendant or person who did the work, being advice given in writing before the work was done, …
It is also necessary to note that s 48MA of the HBA provides as follows: A court or tribunal determining a build claim involving an allegation of defective residential building work or specialist work by a party to the proceedings (the responsible party) is to have regard to the principle that rectification of the defective work by the responsible party is the preferred outcome.

Applicant's evidence

Exhibit A's 24 pages did not contain any witness statement, statutory declaration, or affidavit. The undated covering letter (A1, ie page 1 of Exhibit A), received by the Tribunal on 16 November 2021, claimed $22,961.70 (as set out in the application) and added claims for $1,600 to remove and refit a solar water heater tank as well as $3,500 for painting, giving a total of $28,061.70.
The application (A2-3) named the respondent as "Quickspec Modular P/L (Ben Blanchette)". Under the heading "Dispute Details", the applicant set out her version of events which, it is observed, does not contain any reference to the first respondent. She suggested she provided the second respondent with photos and videos showing the roof leaking and suggested that leaking had caused damage to paint work but did not indicate where that damage was.
A quotation dated 17 March 2021, from Roofbuild Pty Ltd (A4-5) sets out details of the work covered by the total cost of $22,961.70, inclusive of GST. There was also a quotation for $3,500 (inclusive of GST) from M & K Hennessy dated 16 September 2021 (AA6) which describes the work as "Repainting of main ceiling".
Copies of numerous text messages were provided (A7-21) which included some photos. Those pages are followed by an exchange of emails on 30 September 2020 between the applicant and "ben@quickspec.com.au" which obviously was the email addressed being used by the second respondent.
The expert report upon which the applicant relied suggested that the applicant engaged "Quickspec Modular Pty Ltd (Ben Blanchette)" to do work which included replacing the roof on her home and installing six skylights. It suggests the skylights used were not suitable for a roof with a pitch of less than 15°, "as per the Velux installation requirements" (not provided) and that the pitch of the subject roof was 10-11°. The report contains details of how the total amount of $86,908.66 was reached and annexes documents which include a single item Scott schedule which refers to the pitch of the roof but does not add anything to what appears in the report.
This expert report contained two photos: one, without any indication of the date it was taken, was said to show rainwater leaking onto a timber floor; the second, said to have been taken on 4 December 2021, was said to show a 10° pitch in the roof but does not do so because the screen of the device used appears black in the photo.
Another attachment is an unsigned report dated 28 September 2020 from Steve Strange whose email address and logo is the same as that of Roofbuild Pty Ltd, which provided a quotation dated 1 July 2022 which increases the cost of the same work from $22,961.70 to $34,360.19, an increase of 50% over a period of 15 months. The updated report (Exhibit B) also contained a truncated copy of a third quotation from Roofbuild Pty Ltd dated 3 December 2021 for $28,223.29.
Exhibit B also contains an updated quotation for the painting. Although undated, this quotation indicates that it is open for acceptance until 13 June 2022. A comparison of the painter's quotation in Exhibit B with the quotation from the same painter in Exhibit A reveals that the scope of work has extended from "Repainting of main ceiling" by the addition of the words "and stained windows and sliding doors in same area". The GST inclusive total increased from $3,500 to $5,800, a 66% increase.
When questioned by Mr Blanchette, Mr Dunstan said he obtained updated quotes and checked their scope of work and prices, which he said he was instructed to do by the applicant's solicitor. He suggested "nothing technical" was changed in his report, only the amounts. Asked why he prepared a report when the job was incomplete, he suggested the job seemed to be complete.
The second respondent also asked questions of Mr Dunstan. In relation to the situation in relation to the tarpaulins at the time of his inspection (which was on 4 December 2021), he said the condition of the tarpaulin was "tattered" and that he got a weight and weighted it down because it was not effectively covering one skylight.
Mr Dunstan's evidence was that he only saw one tarpaulin and six skylights. On the question of whether there had been other contractors on site before his inspection, Mr Dunstan gave the obvious answer that he could only look at what was there.
In view of matters which arose during the cross-examination of the second respondent, evidence was obtained from the applicant in reply to the effect that she had only seen the text messages said to constitute the agreement for the work and that she had only recently seen the first respondent's quotation and agreement.

Respondent's evidence

The 18 pages of Exhibit C comprised a four-page submission, followed by six pages of text messages and then six photos with accompanying comments. Those photos included a photo dated 22 May 2020, said to show the roof covered by tarpaulins, and a photo taken on 1 February 2022, said to show the installation of a new swimming pool.
Propositions made in this document may be summarised as follows and it is convenient to here include the Tribunal's decision in relation to each of those matters. 1. No notice was provided to the first respondent or Mr Blanchette of any complaint prior to the commencement of these proceedings. Notice was provided to the second respondent who is an employee of the first respondent company (C15). 2. The work is incomplete, pending the applicant "obtaining funds for the additional work to be done". The work does not present as incomplete and there is no supporting evidence for the claim that further work awaits the provision of funds by the applicant. 3. The first respondent is ready, willing, and able to complete the work. This is a matter relevant to s 48MA of the HBA, considered below. 4. The applicant purchased skylights that were not fit for purpose and insisted that they be installed. The skylights were installed without any written instruction that would provide a defence under s 18B(1)((a) of the HBA. 5. The applicant sought a quotation from another roofing contractor. That is of no moment as the applicant is entitled to obtain a quotation for the cost of rectification. 6. There was old water damage due to leaks which the subject work was intended to address with the result that what is now suggested to be damage (new damage) is old damage. It was open to the respondents to submit evidence in support of this claim, but no such evidence was provided. 7. Tarpaulins installed for the applicant have been removed without permission of the respondent/s. The use of tarpaulins suggests one or more leaks that needing to be addressed. Movement in tarpaulins over a period of almost two years is not unexpected. Movement in tarpaulins may be relevant to the prevention of damage resulting from a water leak. 8. Skylights have been installed by a third party. There is no evidence to support this allegation. 9. Work has been done since the work carried out by the respondent/s. Again, no evidence was provided in support of this allegation. 10. At the time the applicant purchased the property on 15 May 2020 the vendor's real estate agent suggested it need renovations. This is a matter which it was open to the respondents to establish with evidence, but that was not done. 11. A copy of any pest or building report obtained prior to the applicant purchasing the property should be provided by the applicant. It is for the applicant to provide her case and. if the respondents wished to rely on any such report, they should have obtained a copy by having a summons for production of any such document issued. 12. The first respondent has a sign-off procedure was never done. This is not relevant to the question of whether there is defective work. 13. The applicant was provided with a copy of her contract prior to the commencement of the work. The evidence does not enable such a finding to be made. 14. Rain and weather delayed the work. Even accepting this claim, it does not go to the question of whether there is defective work, 15. Flashing work in relation to the six skylights remained to be completed. The evidence does not support this allegation.
Exhibit D contained a two-page quotation dated 9 June 2020 for $19,000 (inclusive of GST) for described work, and an unsigned, four page "Small Works Agreement" showing the same date and amount. In each of those documents the description of the work was as follows: Inclusions to Main Dwelling only • Supply and install new Colorbond Metal Roofing 0.42bmt monument • Supply and install New R1.3 Insulation blanket • Supply and install New Flashings, Drypans, Ridges, Barges and Associated Fixings to main house • Supply and install Colorbond Square gutter • Manufacturer's Warranties apply • Removal and disposal of existing waste material from site * Notes - we have excluded items below 1. Rotten Timber Structural Repairs (amount of damage unknown and appears extensive) 1. Removal and replacement of existing solar hot water system excluded and works to be undertaken by plumbing contractor
As indicated earlier, the second respondent (Benjamin Ralph Blanchette) was cross-examined. His attention was drawn to a 15 October 2020 communication (on A18) in which the applicant warned him that if there was no response, she would lodge a complaint with Fair Trading. He accepted that penalty notices were issued by Fair Trading for breaches of s 4 and s 7 of the HBA (the former dealing with contracting without a licence, the latter with the form of contracts).
This witness suggested that the work was incomplete, despite the full amount of $25,120 shown in a message dated 15 July 2020 (A14) being paid, claiming that there were unpaid variations. When it was suggested that there were no written variations, he maintained there was a text message. His attention was drawn to his 30 September 2020 email (A23), in which he suggested the flashings were installed, and to the messages exchanged in relation to the skylights obtained by the applicant (A10-11). As to those skylights, the second respondent denied that, when he came to the property and saw the skylights, he said "they're good".
As to the installation of the skylights, the second respondent denied that any were installed by an apprentice with his school-age brother and suggested those skylights were not installed, only placed in position. He claimed that the skylights were not installed because he was waiting for the applicant to find money to pay for variations.
When aspects of what was said on pages C2-3 were challenged, the second respondent maintained that there was what he termed "old water damage", ie water damage existing prior to the work carried out by the respondent/s. The suggestion that a copy of the contract was handed to the applicant was also challenged. It was accepted that, at the time the work was carried out, the respondent/s did not hold a licence which entitled them to do work involving more than $20,000.

Submissions for the Applicant

It was contended that there was no written contract, only an exchange of text messages, as appeared on pages A7 and A14, and that there were no variations. Further, that the message on A14 suggested $1,800 for all six skylights and not that amount for each skylight. A submission was made that there was no amount outstanding because the full amount of $25,120 had been paid. The applicant's case was said to be that the respondent/s approved and installed the skylights obtained by the applicant and the Tribunal was reminded of the 30 September 2020 emails at A22-23.
On the question of which respondent contracted with the applicant, it was said that the messages were exchanged with the second respondent without any reference to the first respondent company. Further, that a builder should be aware of what the HBA requires and that, as a result, the second respondent should bear the consequences of his conduct.

Submissions for the First respondent

It was noted that the claim made on C1 was that there had been no complaint by the applicant to the first respondent or Mr Blanchette (as distinct from the second respondent). The Tribunal's attention was drawn to the 9 July 2020 message in which the applicant indicated she was able to open the quote (on A13) and to the email at A22 which the applicant to the second respondent using an email address that clearly indicated the first respondent company. Further, it was observed that the quote referred to "rotten timber" and that the evidence suggested the work commenced on 14 July 2020 (A13). When asked by the Tribunal, Mr Blanchette was unable to indicate the last when work was done at the applicant's home. He said there was no sign-off sheet because the work was incomplete. It was confirmed that it was not in dispute that the applicant had paid a total of $25,120.

Second respondent's submissions

The quotation was said to have been sent and accepted which is why the work then commenced. As was the case with Mr Blanchette, the second respondent was unable to either recall the last day when work was done or to point to evidence which indicated that date.

Submissions in reply

Mr Campbell suggested that the 30 September 2020 emails (A22-23) were too late to go to the question of with whom the applicant contracted. He suggested that the quote for $19,000 was inconsistent with the earlier communications which appear on A7 and A14.
It was also submitted that the quotation and small works agreement were recent inventions. There was also a submission that the work was complete because there had been payment in full of $25,120.

Consideration

In reaching a decision in relation to this application, the Tribunal has considered the entirety of the documents admitted as evidence and the submissions. These reasons focus on the material central to the issues but, to the extent that any evidence or a submission is not referred to, it should not be assumed that evidence or submissions has been ignored.
That approach is consistent with what was said by Allsop P in Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [2]: [A] judge may, in dealing with large bodies of evidence, be forced to economise in expressions and approach in order to be coherent in resolving the overall controversy. The need for coherent and tolerably workable reasons sometimes requires a truncation of reference and expression. Judgement writing should not become a process that is oppressive and produces unnecessary prolixity. Not every piece of evidence must be referred to. That said, central controversies put up for resolution by the parties must be dealt with. The competing evidence directed or relevant to such controversies must be analysed or resolved ...
It is convenient to first consider whether the applicant's contract was with the first respondent or the second respondent.
When it is necessary for a court or tribunal to determine an issue relating to the formation of the contract or its parties or its terms, that question is not determined by reference to what either of the parties thought or what they intended. Many decisions, such as that of the High Court of Australia in Taylor v Johnson [1983] HCA 5, have held that contract law is concerned not with the subjective intentions of the parties to a contract, but rather with the outward manifestations of those intentions. That is sometimes referred to as the objective theory of contract because the assessment is not made from the subjective view of either party but objectively, as if a reasonable person was considering what was said and done by both parties at the relevant time.
Further, when an alleged agreement is not wholly in writing but is either oral or partly written and partly oral, it is necessary to make findings of fact as to what the parties have agreed (County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193 at [7-27]) and post-contract conduct is both admissible and relevant (Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 at [141-143]).
On 9 June 2020, at 2.50pm, the second respondent sent a message to the applicant which suggested: $19000 roof $1600 hot water system removal and replacement If it fails possibly $4500 - 5000 Cash price
Her next day reply, sent at 7.27pm, read: "Hey Ben soting (sic) dollars with the bank .. def want you to do the job ASAP I'm flush". The next message from the second respondent was to indicate he would go to the applicant's house the next day to "take some final measures and lift a roof sheet …". That exchange of messages is not sufficient to constitute a concluded contract: the applicant was still arranging her finances and the second respondent had yet to complete his measurements. The amounts provided appear to be no more than the provision of estimated costs.
There were subsequent messages which dealt with matters such as roof colour and skylights after which, at 4.11pm on 8 July 2020, the applicant asked the second respondent "… how much were you quoting for my sky lights" which was obviously a reference to their installation by reason of the earlier messages in relation to which skylight the applicant should buy.
At 12.55pm on 9 July 2020 the applicant sent a message to the second respondent which read: "Once I sent to file I could open quote" followed by an OK emoji. The next message from the applicant, at 10.10pm on 12 July 2020 asked: "Hey just wondering of you are coming tomorrow" and the next morning reply, at 7.26am included the words "I will have to start tomorrow". Those messages favour the view that a quotation was provided to the applicant, read by her, and accepted. The only document in evidence that would constitute the document which the applicant herself called a "quote" was the 9 June 2020 quotation for $19,000 which made up the first two pages of Exhibit D.
It is a reasonable inference that the quotation to which the applicant referred on 9 July 2020 was the quotation dated 9 June 2020.
However, while that document has a "quickspec" logo, there is (1) no use of the words "Ltd" or "Pty Ltd", (2) no Australian Company Number (ACN), and (3) no Australian Business Number (ABN). While the quotation does include three uses of the words "we" and twice says "our", that is insufficient to warrant a finding that the applicant was contracting with a limited liability company, noting that Quickspec could be a business name rather than a company name.
On 15 July 2020, at 10.09am, the applicant told the second respondent: "I have 9g for you and will be taking out 5g today tomorrow etc" which suggests the quoted amount of $19,000 was being paid in cash instalments. Later the same day, at 11.52am, the second respondent sent the applicant a message which read: Roof 19000 Plumber 1600 Skylights 1800 Guttermesh 2720 Total $25120
While there is no subsequent message to indicate acceptance of those amounts, it is not dispute that the applicant has paid a total $25,120. Had that amount been paid by cheque or bank transfer rather than cash then there would have been evidence relevant to the question of with whom the applicant contracted.
What is to be made of the unsigned document, dated 9 June 2020, which was titled "Small Works Agreement"? That four-page document contained a footer on each page which disclosed the name of the first respondent, Quickspec Pty Ltd, and a street address in Menangle. The last page of that document contained the words: Quickspec Pty Ltd ABN: 59 158 323 883 Licence No: NSW 344115C Ben Banchette
The competing versions as to what happened to that document are that response of the first respondent, at C14, suggested: … [the applicant] has her copy of the contract that was personally handed to her on site when a further inspection was done in order to commence the works. She placed the documents into her grey Prado vehicle.
The applicant did not accept that occurred.
In this case, the difficulty is that the Tribunal is unable to rely on the evidence of either the applicant or the second respondent and considers their evidence should be viewed with caution.
As to the applicant's evidence, she suggested she never received the quotation, yet she sent a message saying she had been able to open the quotation that was emailed to her.
As to the second respondent's evidence, his claim in oral evidence that the skylights were not installed contradicts the email he sent on 30 September 2020 which included the words: "The skylights are installed …".
No party provided any witness statement, statutory declaration or affidavit despite the directions which were made and the resulting documents that were sent to the parties indicating the need for such documents. The applicant did no more than rely on the fact that she verified her application but that only set out allegations, not evidence. The respondents only lodged a submission which also made allegations, without providing supporting evidence.
Regardless of the reason for the lack of proper written evidence from any party and, given the unreliability of the oral evidence (regardless of the reason), the Tribunal is forced to determine this case by reference to contemporaneous documents which are in evidence. While it may be that what happened differs from the findings of the Tribunal, that is because the Tribunal is forced to decide the issues based on the evidence admitted during the hearing, having regard to the submissions made by or for the each of the parties.
The findings which the Tribunal makes in relation to this issue are as follows: 1. The applicant sought to have roof repairs carried out on her home. 2. The second respondent provided her with a quotation dated 9 June 2020. 3. The applicant was able to view that quotation on or before 9 July 2020. 4. The scope of work was set out in that quotation. 5. The proposed cost of that work was $19,000, inclusive of GST. 6. On or about 14 July 2020 that work commenced. 7. By 15 July 2020 the applicant had obtained $9,000 as part payment for that work and expressed an intention to obtain further amounts of $5,000 later that day and on the following day. 8. The applicant subsequently paid an amount which included that $19,000. 9. It is a reasonable inference that the applicant accepted that quotation. 10. The evidence does not enable a finding that the name of the first respondent company was brought to the attention of the applicant prior to the commencement of the work. 11. As a result, there was an agreement between the applicant and the second respondent to carry out the scope of work set out in the quotation for the cost shown in that quotation. 12. On 15 July 2020 the applicant was provided with proposed amounts of $1,600 for work to be done by a plumber, $1,800 for work to be done on the installation of skylights, and $2,720 for guttermesh. 13. Those three aspects, being additional work, constituted oral variations of the agreement between the applicant and the second respondent. 14. The total amount paid by the applicant was $25,120, which is equal to the total of $19,000, $1,600, $1,800, and $2,720.
As to who bears the onus of proof that there was a contract between the applicant and the first respondent, plainly if the applicant seeks to recover against the first respondent, she needs to prove a case against the first respondent which is known as the legal burden of proof.
If the second respondent wishes to suggest that the applicant's contract was with the first respondent then he would bear an onus of proof if be able to shift liability away from himself, which is referred to as an evidential burden of proof.
In this case, the evidence does not enable a finding that the applicant's contract was with the first respondent. It may be observed that, if the applicant did not receive the Small Works Agreement, then why is it that she commenced proceedings against "Quickspec Modular P/L (Ben Blanchett[e])"? How did she come to know the name of the company? The fact that there is no satisfactory explanation as to how the applicant became aware of the full name of the first respondent company leads the Tribunal to suspect that she was, at some stage, provided with a copy of the "Small Works Agreement" but suspicion falls short or proof on the balance of probabilities.
The problem the respondents created for themselves was due to (1) a failure to include company details on its quotation, (2) a failure to obtain a signed agreement, (3) accepting payments in cash, (4) a failure to create contemporaneous records, and (5) a failure to comply with the direction to file evidence in the form of a witness statement, statutory declaration, or affidavit.
It follows that the applicant's case against the first respondent must be dismissed and the Tribunal needs to proceed to consider the issues of liability and quantum as between the applicant and the second respondent.
The Tribunal notes that there is no evidence as to what was the last day on which the work was carried out on the applicant's home by or for the second respondent. Further, there is no evidence as to how the contract came to an end and the suggestion that occurred because the full amount was paid is insufficient. As a result, it is necessary to proceed on the basis that the contract is still on foot with the result that the applicant cannot recover damages in respect of incomplete work: Brewarrina Shire Council v Beckhaus Civil Pty Ltd [2005] NSWCA 248.
Before considering the expert evidence, it is necessary to note that only an expert witness is permitted to give opinion evidence. However, there are matters which the Tribunal needs to consider when deciding what weight to give to that evidence. The first is whether the expert has qualifications and/or experience in the relevant field. Secondly, whether the expert has read and agreed to be bound by the Tribunal's Procedural Direction 3 which reminds of the duty of an expert to assist the Tribunal and not be an advocate for a party. Thirdly, decisions such as Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 (Makita) make it clear that, for such evidence to be accepted, the following considerations apply: 1. the expert's opinion must clearly indicate the facts upon which it is based, 2. those facts must be proved so there is a factual basis for the opinion, 3. the reasons or the process of reasoning for the opinion must be disclosed, 4. any opinion must fall within the qualifications and experience of the expert.
In these proceedings there are claims of defective work, but their assessment is rendered difficult by the absence of a properly completed Scott schedule. As a result, it has been necessary to scour the report of Mr Dunstan to ascertain what are the defects he suggests in his report dated 13 December 2021 which became Exhibit B. Those alleged defects, obtained from the section of that report headed "Executive Summary", may be summarised as follows: 1. The installation of six Velux VS Manual Opening Skylights, said to suitable for a roof with a minimum roof pitch of 15° when the pitch of the subject roof was 10°. 2. That water leaks around the skylights during wet weather. 3. Screws and rivets penetrating the flashing trays. 4. Five "Skylights Automated Honeycomb Blinds" have been affected by rainwater leaking through the skylights and "need servicing or upon closer inspection may even need replacing". 5. Another one of those blinds has not yet been installed.
In the section headed "Expert Opinion", Mr Dunstan suggested he had taken "a series of photos", that he had attached two, and that the "balance of photos can be seen on separate pages of the hard copy report". However, as indicated earlier, only two photos were provided: one appearing to show water on a timber floor and the other purporting to show the roof pitch.
As to the photos that were provided by Mr Dunstan, the question which then arises is what do those photos prove?
By way of illustration, if a person provides a family photo to a stranger, that stranger would not know when the photo was taken, who or what is shown in that photo, and what it is suggested that photo shows. Accordingly, a photo may prove very little unless it is accompanied by evidence as to (1) when that photo was taken, (2) what is shown in that photo, and (3) how it is suggested that photo provides support for the case of the party tendering that photo.
In this case, the photo that appears to show water on a timber floor does not, without further evidence, establish when that photo was taken, what part of the house is shown and whether that location is underneath a skylight, or what is the source of the water. As the floor shown appears to be a door or window, there is no evidence as to whether the water came in at ground level or through a skylight. Mr Dunstan's report does not assist as he clearly indicates it was dry on the day of his inspection.
Mr Dunstan attached to his report a copy of a report and quotation from Steve Strange of Roofbuild Pty Ltd with which he expresses agreement without providing reasons for that conclusion. Those documents are considered below. The focus of the Tribunal at this point is on the report of Mr Dunstan.
Next, Mr Dunstan suggests the respondents "breached the installation requirements of the Unknown roof sheeting brand and Velux skylight manufacturers …" but fails to provide any reasons for that conclusion. Nor does he provide any indication of either what are those requirements (no relevant document was included in the report) or of the way/s in which the installation requirements were breached.
He goes on to suggest breaches of s18B of the HBA, namely the statutory warranties (1) that work be done with due care and skill, (2) that the work done, and materials used must be fit for their specified purpose, and (3) that work will comply with any applicable law. In relation to the last of these three matters, the only details provided were "(The Manufacturers installation recommendations and the BCA performance Provisions at P2.2.2)". However, no copy of those recommendations was provided.
There is also a paragraph which expresses agreement with the revised quotation for painting of $5,272.73 (excluding GST) and the scope of works and quotation of Roofbuild Pty Ltd of $31,236.54 (excluding GST). It is noted that those amounts, when GST is added, becomes $5,600 and $34,360.19.
It would be expected that, having expressed agreement with those two amounts, Mr Dunstan would contend for an amount of not more than $39,960.19, being $5,600 plus $34,360.19. However, the following pages assert that the applicant should be awarded $86,908.66. The composition of that amount was as follows: Category Total Professional fees 3,800.00 Preliminaries - fees and charges 584.20 Roofing 37,036.54 Site preliminaries 2,214.96 Plumbing - fitout 1,000.00 Plant hire - general 5,001.46 Labour rates 880.00 Painting 5,272.73 Floorcoverings 10,050.00 Sub-total (categories) 65,839.89 Sub-total (adjustments) 13,167.98 Total 79,007.87 GST applied to Total 7,900.79 Total (including GST) 86,908.66

In relation to that amount, the Tribunal notes that it includes items referable to the costs of these proceedings which is a separate, subsequent matter, and includes amounts referable to aspects for which there is no supporting evidence, such as more than $10,000 to replace floorboards. The total amount is such as to render the word extravagant insufficient.
Dealing in turn with the five matters listed above, obtained from Mr Dunstan's report. First, the installation of the skylights, which was said to have been contrary to the manufacturer's recommendations. There is no evidence of any such recommendations with the result that Mr Dunstan's evidence on this aspect is an opinion without either any established factual foundation or any reason/s or reasoning for the opinion.
During the hearing, it appeared to be suggested that the applicant relied on the second respondent when purchasing the skylights. The only evidence as to the skylights obtained by the applicant is a sequence of messages which passed between the applicant and the second respondent between 11 and 18 June in 2020. The relevant messages are quoted below, using the letters A and R2 to denote the applicant and second respondent respectively: A Hey Ben.. 550 x 700 is smallest Velux ?? What will fit between the rafters d[o] you reckon?? R2 I'll call over this afternoon if that's ok, I was hoping to lift a roof sheet and look underneath at the structure first for the velux fitment … R2 Hi Zoe, we can have any length but maximum 800mm in width for the skylight. I'll call you later … A Hey Ben Sorry it's late but I am looking at ordering skylight[s]. No flashing required or velux M08 multipurpose flashing ?? (Next day, a picture of a "Velux Flat Roof Manual Skylight VCM" costing $749.76 was sent, followed by the words set out below) A What about this one is it better for the degree angle on mine ???? R2 They work similar to the VS and are great too A Which should I get?? R2 Your roof is 11 degrees in pitch
That being the available evidence, the Tribunal makes the following findings on this aspect of the proceedings: 1. The applicant contacted the second respondent before buying skylights. 2. She asked him which one she should buy. 3. His only response was to give her the correct pitch of her roof. 4. The second respondent did not advise the applicant to buy the skylights she purchased, nor did he recommend a particular skylight to her.
That leads to the question of how the skylights purchased by the applicant, suggested to be only suitable for a roof with a pitch of at least 15°, should have been installed but, again, there is no evidence from either the applicant or Mr Dunstan on that point beyond an assertion that custom flashing trays should have been used to uplift the skylights to a 15° pitch. Even if that assertion is considered sufficient, Mr Dunstan provided no evidentiary support for the opinion that the purchased skylights were only suitable for a roof with a pitch of at least 15°.
Secondly, it was suggested the water leaks around the skylights during wet weather. It is noted there is documentary evidence that the roof was in poor condition, such as the comment included on the quotation: "Rotten timber structural repairs (amount of damage unknown and appears extensive". There are no photos showing such leaks and the only evidence of such leaks is an allegation by the applicant in her application form. Other than what was set out in her application, the applicant has provided no evidence in the form of a witness statement, statutory declaration, or affidavit to support of the proposition that the leaks the subject of these proceedings are due to the work carried out by the second respondent and not pre-existing leaks. Indeed, in the verified statements of the applicant in her application, under the heading "Dispute Details", the applicant said: "I wanted the roof replaced before moving in as it was corroded and leaking."
Thirdly, as to screws and rivets penetrating the flashing trays, Mr Dunstan's report does not appear to do any more than adopt what was said by Mr Strange.
Fourthly, as to the five blinds said to have been affected by rainwater, there is evidence that they failed to operate during Mr Dunstan's inspection but his suggestion that they "need servicing or upon closer inspection may even need replacing" is insufficient to award the cost of replacements and there is no evidence as to why they cannot be repaired or of the cost of any such repairs.
Finally, the suggestion that the sixth blind has not yet been installed is incomplete work rather than a defect. The observation evidence of Mr Dunstan is that it is still in its box. In such circumstances, it is reasonable to expect the applicant to mitigate her loss by taking steps to protect that blind from any water leaks.
Mr Dunstan's report included a copy of the Tribunal's procedural direction titled "Expert Evidence" which he suggested he had read and agreed to be bound by. In that direction, at [19], it is said that an expert's report must include the facts and assumptions upon which an opinion is based, the reasons for each opinion expressed, and "any literature or other materials used in support of the opinions". As the applicant was legally represented, it is reasonable to expect Mr Dunstan's report was reviewed by her legal representative. His report did not meet those requirements.
In the circumstances outlined above, the report of Mr Dunstan proves little and fails to establish liability or quantum. As a result, the applicant's case depends on her evidence which is: (1) the text relevant text messages within Exhibit A, and (2) the report and quotation of Mr Strange within Exhibit B, and (3) the quotation for painting.
There are additional allegations set out by the applicant in her application. If those allegations are to be treated as evidence, fairness requires the same treatment be accorded to the allegations set out in the respondents' submission, which became Exhibit C. However, for the reasons indicated earlier, the evidence of both the applicant and the second respondent must be treated with caution.
Dealing first with the text messages and emails (A7-22). What they reveal, relevant to the alleged defects, is summarised below: 27 Jun 20 The second respondent typed: "Just checking the leaks are not leaking from the plumbing in the hallway", prior to commencement of the work 25 Jul 20 After the 14 Jul 20 commencement, "Sorry Ben we're flooding 5 Skylights. I know it's not great timing" with reply: "I'll sort it" 27 Jul 20 "He it's Jarrod here might pop in tomorrow and just do a water test on those skylights when the silicones all dried up if that's ok" 07 Aug 20 "Still leaking" to which the same day reply was "Send me some photos through coming out there with a tarp" after which two photos were sent and there was then a discussion of tarpaulins 07 Sep 20 Four photos, an avatar, and message "Hi Ben.. still leaking. Just painted and it rained" with the reply "Hi Zoe, I will be back Wednesday I'll come straight over"
There was an exchange of emails on Wednesday 30 September 2020 (A23-24) in which the applicant suggested it was three weeks since a tarpaulin had been put over a leaking skylight (singular) and that she had not heard anything further. She went on to suggest she had a "Velux specialist" assess the skylights and requested a refund of the installation cost for the 6 skylights and the supply of 15 roof sheets. After saying: "I will organise the Velux specialist to remove frame up and refit the 6 skylights and also replace the 15 roof sheets to resolve the leaking issues, resolve the blinds issue, this will remedy the situation and prevent further intervention." This email concluded by asking the second respondent to indicate by Friday if he was willing to do that work.
The same day reply from the second respondent suggested the skylight flashings were installed in accordance with the Velux detail, that he was always uncomfortable with installing the Velux flashing, and that he "should have been more robust in saying no to the Velux flashing and pushed for the custom flashing that I recommended prior". He went on to say: "Normally we would order these and order a custom flashing."
On 15 October 2020 a message sent by the applicant warned she would complain to Fair Trading "regarding the issues surrounding the roof and skylights". The applicant subsequently complained: "You have had ample opportunities to fix my issues …Still have leaks. Still have tarp. I have sought advice and will pursue this issue". The reply from the second respondent included the words: "we did not order the skylights and flashings I had several discussions with you and you told me you had the correct materials. I would like to see the invoice as to see if it matched your order. As I sent you I told you the roof was 11 degrees in pitch. I also informed you that it would be an issue and we wanted to dry pan flash." The applicant's response was: "Not arguing with you I have records too." However, no such records were provided to the Tribunal in the applicant's evidence. Indeed, even the invoice or receipt for the purchase of the skylights was not provided.
Based on that documentary evidence the Tribunal makes the following findings: 1. Within two weeks of the commencement of the work, on 25 July 2020 five skylights were said to be leaking. 2. Silicone was applied to address those leaks. 3. Afterwards, on or before 7 August 2020, leaks were still occurring. 4. One of more tarpaulins were subsequently placed on the roof. 5. On 7 September 2020 the roof was still leaking. 6. On 28 September 2020 Mr Strange conduct an inspection and took photos. 7. On 15 October 2020 the applicant threatened to contact Fair Trading.
During the hearing, it was suggested that the rectification work was not carried out because there had been a failure on the part of the applicant to pay for variations and that there were six variations of $1,800 each that was put in the basis that the applicant purchased the skylights and the respondents needed to convert them. There are no documents or other evidence to support that variation.
Importantly, the second respondent proceeded to install the skylights obtained by the applicant and to use the flashings obtained by the applicant without obtaining a written instruction to do so. Had he done that, he would have had a defence under s 18F of the HBA to any claim based on a breach of a statutory warranty provided by s 18B of the HBA.
While it may be said that the applicant failed to heed the second respondent's warning that her roof had a pitch of 11° when she purchased six skylights which were only suitable for a roof with a pitch of at least 15°, the second respondent, experienced in roofing work, should have known that those skylights should not be installed without an adjustment of the kind suggested by Mr Strange. Further, even assuming the second respondent recommended in favour of the use of custom flashings and/or against the use of the flashings obtained by the applicant, he went ahead and used those flashings. The failure of the second respondent to obtain an instruction in writing to install the skylights and use the flashings renders him liable for the consequences of so doing.
Based on the contemporaneous documents and the available evidence, the Tribunal finds that: 1. The applicant chose the skylights that were installed. 2. The second respondent recommended that custom flashings be used. 3. That recommendation was not followed by the applicant. 4. The second respondent installed the skylights obtained by the applicant. 5. The second respondent used the flashing obtained by the applicant. 6. The skylights were installed and flashings were used by the second respondent without first obtaining any written instruction to do so from the applicant.
The report of Mr Strange, dated 28 September 2020, suggests the skylights should have had a tapered frame installed to raise the skylight pitch to 15° because custom flashings should have been used instead of the standard Velux flashing. As to the rectification of this aspect, it was said that the skylights should be removed, tapered timber frames manufactured and installed, with custom flashings used when the skylights are reinstalled. It was also said that the roof sheets around the skylights need to be replaced also.
This report also said: We found screws or rivets have been used to fix the roof sheeting down to the inside of the flashing tray making the flashing trays defective. The leaking skylight has a hole in the flashing from a pulled rivet and the roof sheet beside the LHS of the skylight has rivets fitted to the sheet lap. These are definite leak issues. The over use of silicone at the flex flashing has also created a leaf catcher that will cause leaf litter to be trapped behind and cause water to overflow in due course. 1. The concluding section of the report, after referring to the skylights, said: On a separate note, there are missing roof screws on the roof, the ridge capping is buckled near the solar hart hot water system and there should be a hose attached to the relief valves on the hot water system to stop corrosion on the roof.
This report includes nine photos which appear to have been take on the day Mr Strange inspected (28 September 2020, each of which is accompanied by a brief description. The description with the fifth photo is "Leaf on flashing tray, rivets in sheet pan LHS, Excess silicone used", the sixth photo is said to show "Pulled out rivet, unsealed hole in flashing", and the seventh is said to depict "Rivets used in flashing trays". The ninth photo is a closer view of what appears in the eighth photo and the words between those photos are: "Missing hoses to expansion valves, early corrosion to sheet, missing wrap to copper pipe under flashing."
The components of the total amount of $34,360.19 appearing in the quotation provided by Roofbuild Pty Ltd, obviously prepared by Mr Strange, were: 1. Remove and refit six skylights - $10,800 2. Remove and replace six flashings - $7,200 3. Remove and replace 61 m2 of roof sheets around skylights - $7,015 4. Remove and replace 61 m2 of wet, damaged roof banket - $1,342 5. Remove and replace 19 m of bent ridge capping - $2,945 6. Labour associated with removing and replacing leafguard to accommodate roof sheet replacement - $480 7. "Supply & install Hot Water temperature relief pipe drain run to ground" - $550 8. Allowance for use of harness to perform work - $454.54 9. Waste removal - $450 10. GST - $3,123.65
The $5,800 quotation for painting describes the scope of work as: "Repainting of main ceiling and stained windows and building doors in same area".
In her application (A2) the applicant recounts her version of events and suggests the leaking water has caused damage to her ceiling and to "a wall hanging painting and cause wetness to furniture". However, she provided no supporting evidence for those claims. Further the "Order/s sought" did not include any cost for painting nor did the details under the heading "Reasons for the Order/s" make any mention of either the ceiling, the hanging painting, or the furniture.
Turning to the respondents' submissions (Exhibit C). It is noted that the second respondent was cross-examined because the contents of that document included matters in the form of evidence rather than submissions. The suggestion that the skylights were placed in position rather than installed is rejected as (1) no supporting evidence was provided by the respondents, (2) the evidence of Mr Strange is preferred, and (3) the contemporaneous documents do not support that claim: they instead support the proposition that the skylights were installed, that leaks occurred, and that a tarpaulin was placed over at least some portion of the roof.
There was what was said to be a quotation from a listing of the property by the real estate agent for the vendor who sold the property to the applicant but the original of that document was not provided. Further, the evidence of Mr Strange provided support for there being leaks related to the work carried out by the second respondent.
The messages submitted by the respondents (C5-10) do not add to the evidence in any meaningful way: apart from duplications of messages provided by the applicant, they only go to the use of the skylights and flashings obtained by the applicant for which, as indicated earlier, the second respondent bears responsibility by reason of not having obtained a written instruction so as to be able to rely on the defence provided s 18F of the HBA.
It was suggested that Mr Brazel had inspected the property, but no report was provided by him. The suggestion, at C17, that the first photo on that page was a "Photo dated 22nd May 2020 showing roof covered by tarpaulin" overlooks the fact that the work did not commence until after that date. The second photo on that page, which purports to show the installation of a swimming pool by 1st February 2022 is not relevant to the question of whether there is defective work.
The suggestion of the respondents that the applicant purchased skylights that were not suitable serves to confirm the view expressed by Mr Strange, whose "Roof Assessment Report" and quotation do provide reasons for his opinion as well as both the method and reasonable cost of rectification. He provided photos and the date they were taken is sufficiently evident, they are accompanied by descriptions which explain what it is said they demonstrate and what appears in the photos accords with those descriptions. As a result, Mr Strange has provided a factual basis, an opinion, and reasons for his opinions in his four-page report and two-page quotation.
Accepting the evidence of Mr Strange, the Tribunal finds: 1. The applicant purchased skylights that were not fit for their purpose as they required a minimum roof pitch greater than that of her roof. 2. The applicants purchased flashings that were not fit for their purpose as custom flashings were required. 3. The second respondent, an experienced roofer, installed those skylights and flashings without obtaining written instructions to do so. 4. As a result, the work of the second respondent breached the statutory warranties provided in paragraphs (a) and (b) of s 18B(1) of the HBA in that the roofing work was not done with due care and skill and the materials used were not suitable for purpose. 5. The method of rectification proposed by Mr Strange is reasonable. 6. The reasonable cost of rectification is the amount of $34,360.19 (incisive of GST) as set out in the quotation of Roofbuild Pty Ltd dated 1 July 2022. 7. It is not reasonable to add to that stand alone quote any of the many additional amounts suggested by Mr Dunstan. 8. A reasonable time to allow for the payment of that amount is 28 days.
Before reaching the conclusion that a money order should be made, the Tribunal considered s 48MA of the HBA, which sets out a preference for defective work to be rectified by whoever did that work. In this case, it appears that statutory preference has been displaced since (1) the relationship between the parties appears to have broken down, (2) penalties have been imposed under the HBA, (3) aspects of the work appear to involve defects which should not have occurred, such as a hole in the flashing from a pulled rivet and missing screws on the roof, (4) there is no acknowledgement that there are defects, and (5) it appears that any work order would be highly likely to result in renewal proceedings with time and cost implications not only for the parties but also for the Tribunal.
The application, when first amended on 16 November 2021, added a claim for $1,600 for removing and refitting the solar hot water facility. However, there is insufficient evidence provided to support that claim by the applicant who bears the onus of proof.
Likewise, there is insufficient evidence to support the claim for painting, now $5,800. There was no evidence beyond a general allegation in the application. There were no photos or other evidence provided. Further, it is noted that the second respondent arranged for a tarpaulin to be placed on the roof within a reasonable period after the applicant brought water leaks to his attention.

Costs

Since claims for costs were included in the report of the applicant's expert, it is reasonable to expect that the applicant will wish to make a claim for costs and the first respondent, having been successful, may also wish to make such a claim. The orders will include provision for written submissions to be lodged in relation to costs.
Any application for costs should include details of the amount claimed so that the Tribunal may consider whether to determine costs rather than to make an order that may require the parties to go through the process for the assessment of costs.
For the assistance of the parties, the Tribunal notes that, in the Civil and Administrative Tribunal Act 2013, the effect of s 60 is that each party is to bear their own costs unless there are special circumstances which warrant an order for costs. However, s 35 of that Act operates to make s 60 subject to rule 38 of the Civil and Administrative Tribunal Rules 2014 which provides that where "the amounts claimed or in dispute in the proceedings is more than $30,000" the Tribunal can ward costs without needing to consider whether there are special circumstances.
When rule 38 applies there is a general discretion to award costs and it is well established, by decisions such as News v Cotes [2019] NSWCATAP 186, Bonita v Shen [2016] NSWCATAP 159 and Thompson v Chapman [2016] NSWCATAP 6, that: (1) the starting point is that the usual order for costs should be in favour of the successful party, (2) the award is not to punish the unsuccessful party but to compensate the successful party for the costs incurred in the proceedings, and (3) departure from the usual order is permissible if the circumstances favour that course of action.
Simply stated, when rule 38 applies it is not necessary to establish special circumstances and the usual order is that costs follow the event (ie follow the outcome of the case) unless there is disentitling behaviour by the successful party: Latoudis v Casey [1990] HCA 59, Oshlak v Richmond River Council [1998] HCA 11.

Orders

For the reasons set out above, the orders that will be made are as follows: 1. As against the first respondent, Quickspec Modular Pty Ltd, the application is dismissed. 2. The second respondent, Benjamin Ralph Blanchette, is to pay the applicant, Zoe Filliston, $34,360.19 within 28 days. 3. Any submissions in support of an application for costs (not exceeding five pages), together with any supporting evidence, are to be provided to the other parties and the Tribunal by 8 August 2022 and any such submissions should include details of the amount of costs sought. 4. Any submissions in response to any such application (not exceeding five pages), together with any supporting evidence, are to be provided to the other parties and the Tribunal by 22 August 2022. 5. Any submissions in reply (not exceeding two pages) are to be provided to the other parties and the Tribunal by 29 August 2022. 6. Any such submissions should indicate whether the party accepts that costs should be determined on the papers, ie without the need for a further hearing.

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

Amendments 13 September 2023 - Formatting amendments. 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: 13 September 2023

At a glance

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Decision date

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Judgment (17 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (11)