1. The issues in this case are:
   • (a) What items of building work are defective?
   • (b) What is the reasonable cost to rectify the defects?
   • (c) Is it reasonable for the applicant and her family to be relocated during the rectification works?
2. At the hearing the parties prepared a Scott Schedule of the following:
   • (a) alleged defective building work withdrawn by the applicant;

(b) defective building work and damages agreed by the builder;

(c) alleged defective building work denied by the builder; and

(d) alleged defective work disputed by the builder but where the builder agreed damages in the event the Tribunal found the items to be defective.

1. The parties gave evidence by witness statements and were cross-examined at the hearing. The applicant called Mr Ian McNees, building consultant and Mr Chevaldurai, structural engineer to give evidence at the hearing. I found Mr McNees to be a satisfactory expert witness.
2. On the whole I found Mr Chelvadurai to be an unsatisfactory expert witness. I found his evidence difficult to follow and his expert reports unclear. In cross-examination, at times, Mr Chelvadurai gave evidence which contradicted his statements in his own reports, and which was inconsistent with documents on which he relied.
3. The applicant also relied on the reports of Mr Stephen Pitney, quantity surveyor, who provided a costing of Mr McNees' scope of works. Mr Pitney was not called to give evidence.
4. Mr McEnaney, director of the builder, gave evidence at the hearing. The applicant submitted that the Tribunal should make adverse findings against the builder for its conduct, both before and after she issued her proceeding in the Tribunal. The applicant submitted that the builder was slow to rectify defects, agreed to rectify defects and then subsequently refused to do so. The applicant also submitted that the builder was "untruthful". I take the applicant's submissions to be directed at Mr McEnaney.
5. The applicant's pleaded claim was that the builder's conduct should be taken into account in assessing whether the applicant failed to mitigate her loss. At the hearing the builder did not press lack of mitigation of loss. In so far as the applicant submitted that these matters went to credit, such matters were not put to Mr McEnaney in cross-examination. In giving his evidence in chief and in cross-examination Mr McEnaney said he had made some errors in his witness statements which he corrected. I found Mr McEnaney to be an honest witness. I am not satisfied that adverse finding should be made against him on matters of credit.
6. The applicant also submitted that the Tribunal should take into account the builder's misleading and deceptive conduct. The applicant has not issued proceedings for misleading or deceptive conduct against the builder and I make no findings as to whether the builder engaged in misleading or deceptive conduct.
7. The builder called Mr Rob Lees, building consultant, and Mr Russell Brown, structural engineer, to give evidence. I found Mr Lees and Mr Brown to be satisfactory expert witnesses. Mr Brown gave clear and cogent evidence at all times and responded to Mr Chelvadurai's evidence in a clear and systematic way. I found his evidence to be far easier to follow than the evidence of Mr Chelvadurai.
8. The builder relied on reports of Mr Desmond Berkowitz, quantity surveyor, who provided a costing on Mr Lees' scope of works. Mr Berkowitz was not called to give evidence. The building experts gave concurrent evidence at the hearing, as did the engineering experts.
9. I attended a view of the property on 6 May 2019 with the parties and their legal representatives.

1. Each party was represented by Counsel during the hearing. At the end of the hearing I reserved my decision. The parties agreed consent orders for the filing of final Scott Schedules and submissions.
2. In June 2019 the applicant notified the Tribunal that she was no longer represented by her Counsel or solicitors. She sought further time to file submissions and the Tribunal allowed the extension sought.
3. After the parties had filed their submissions, the applicant sought to file further submissions in reply. The Tribunal made orders allowing the applicant to file reply submissions and gave the builder the right to oppose the filing of those submissions. I heard oral argument from the parties on the submissions.
4. The builder submitted that the applicant's submissions included not only new claims, but claims that were inconsistent with the evidence, the pleadings and the conduct of the hearing. The builder submitted that they mischaracterised the evidence of the builder and its engineering expert Mr Brown and misrepresented the evidence of Mr Chelvadurai.
5. The applicant made the following submissions. It would be unfair and a denial of natural justice for the Tribunal not to allow her to file submissions in reply. The Tribunal was required to take into account not just the evidence given at the hearing, but evidence given during the proceeding and her submissions included such evidence (McIntyre v Kucminska Holdings Pty Ltd ).[3]
6. The applicant submitted that "proceeding" as defined, included everything from the time when the applicant issued her application until the end of the hearing. The applicant submitted that she was entitled to deal with all the evidence introduced from the time of issuing the proceeding.
7. The applicant further submitted that the Tribunal was to take into account every document in the Tribunal book because the Tribunal book was in evidence. The applicant submitted that it would have been impossible to get through every page at the hearing and acknowledged that the parties had not dealt with every page of the Tribunal book at the hearing.
8. The applicant submitted that the Tribunal was required to take into account every document attached to Mr Chelvadurai's report. The documents included the applicant's correspondence with the VBA and the Maroondah Council, and her correspondence with numerous people between 2016 and 2019, who were not called to give evidence.
9. The applicant has included a great deal of material in all her submissions. I accept that the applicant has spent many days and hours preparing her submissions and reviewing and analysing the Tribunal book which is made up of more than 1000 pages.
10. I have had regard to the applicant's submissions, including her reply submissions. In so far as I have considered them relevant, the applicant's submissions are reflected in my findings in relation to the defects above. In so far as the applicant's submissions deal with matters that go beyond the building defects I have taken them into account where they are relevant to the applicant's pleaded case, the evidence and the issues in question.
11. At the start of the hearing I told the parties that I would receive into evidence, the documents referred to during the hearing. The documents referred to during the hearing are in evidence and have been taken into account in making my determination. Not every document in the Tribunal book is in evidence. The Tribunal is not required to take into account documents that go beyond the evidence given during the hearing.

1. During the hearing the applicant withdrew the following claims for defective work. The item numbers follow the numbering in the Scott schedule:

BUILDER ADMITTED LIABILITY AND DAMAGES OF $18,870.60

1. At the hearing the builder admitted liability and damages of $18,701.17 for the following items of defective work. The subtotal of the damages amounts to $12,947.24 making the total damages $18,870.60.

Exposed screw heads in finished plasterboard services (included in item 15)

Contingency, margin, preliminaries and GST (agreed at 45.75%)

1. I find that the builder is liable for the defects set out in the table above. I therefore allow $18,870.60.

1. The applicant claims that the following items are defective. The builder denies liability.

Item 1(b): Ground finishes - No fall in subfloor area

1. Mr McNees and Mr Lees agreed that the surface of the ground in the subfloor area should be made even and levelled out because it was 'pugged' and cratered. The builder agreed that pugging was a defect listed in item 1(a) in the table above.
2. The applicant claims that there is no fall in the subfloor area. Mr McNees' report stated the following. There was not a sufficient fall in the underfloor soil level to facilitate surface drainage. The underfloor surface area had been excavated to a nominal level of 6.4m (as designed) and was essentially flat and level but pugged and cratered causing it to pond. Mr McNees did not observe a fall in the ground level on his inspection. Mr Lees observed a fall in the subfloor area from the front (south-east) towards the back wall (north-west).
3. Mr Lees considered that the areas around the stump holes should be checked and compacted and made level with the general surface levels. He considered that in the event of any water penetrating into the subfloor area, this would allow the water to flow through with the natural ground level.
4. There was no separate costing provided for this item. The applicant's quantity surveyor included the cost of this item as part of the claim for re-stumping (item 53). Mr Lees said that the rectification work to be carried out for item 1(a) would incorporate levelling out the ground surface.

1. The experts agreed in item 1(a) the subfloor area was pugged and needed to be levelled. Rectification costs have been agreed in the table in paragraph 32 above.
2. I accept Mr Lees evidence that the work to be carried out as part of item 1(a) would incorporate the grading of the ground to ensure a fall exists. Mr McNees did not provide any calculations showing the actual levels of the ground in the subfloor area to support the applicant's claim. I find that the grading of the subfloor is to be carried out as part of item 1(a) as agreed by the builder and that no further damages are to be awarded for this item.

Item 1(c): Ground finishes - landscaping - front garden area: $570

1. The applicant claims that the level of the ground in the garden, between her house and the driveway is flush with the bottom edge of the subfloor vents. She claims the fall in the garden area does not direct surface water away from the applicant's townhouse. She says these items breach the Building Code of Australia and the Guide to Standards and Tolerances. She claims rectification costs of $570.
2. Mr McNees' report stated the following. The finished ground level of the garden area between the front of the applicant's house and the driveway paving was flush with the bottom edge of the subfloor vents. The soil should fall away from the building. The builder had not provided anything to prevent surface water entry through the vents. There was not the required 50mm between the vent and the finished landscaped area.
3. Mr Lees disagreed. Mr Lees' report stated that the fall on the driveway fell away from the garage back to the stormwater pit in the common driveway and that the driveway had been built to the approved design drawings. The driveway had to align with the garage slab which had been designed 170mm lower than the internal floor finish.
4. Mr Lees stated that the ground levels under the house had not been benched but sloped from the front of the applicant's house to the back. He stated that the water that fell directly onto the garden bed between the driveway and the applicant's house, would be minimal because it was sheltered as it faced north-east and into the prevailing weather.
5. Mr Lees gave evidence that the ground level was lower than the bottom of the vent by the required 50mm. He said the water would be absorbed by the tanbark. He said if any flooding had occurred under the house then the tanbark would float and be on the subfloor. He considered that the removal of the tanbark would provide sufficient space.
6. Mr Lees stated that the design of the drive, garden bed and finished floor levels did not allow for the first metre of ground of the garden beds to be graded away from the structure. He said when the subfloor surface levels were levelled and the areas around the stump holes checked and compacted, if water penetrated into the subfloor area it could flow through with the natural ground level.

1. I prefer the evidence of Mr Lees to Mr McNees. I found Mr McNees' report on this item to be unclear. I gave him an opportunity to clarify each item he considered to be a defect and to give evidence about each item. Mr McNees' evidence did not address, nor respond in any detail, to the points raised by Mr Lees.
2. I am not satisfied that the finished ground level of the garden is flush with the bottom edge of the subfloor vents. I accept Mr Lees' evidence that the driveway has been built in accordance with the plans and directs surface water into the drainage pits as it is required to do.
3. I also find that this issue relates to property owned by the Owner's Corporation. I do not accept the applicant's submission that the obligations of the Owner's Corporation for OH&S matters are relevant to this item. The applicant has not issued proceedings on behalf of the Owner's Corporation and has no standing to bring this claim. I am not satisfied as to this item.

Item 1(d): Ground finishes - ventilation of sub-floor area: $2,370

1. The applicant claims the subfloor area is not adequately ventilated. She claims rectification costs of $2,370.
2. Mr McNees' reports stated the following. The vents appeared to have been installed in accordance with the requirements of the Building Code of Australia but with no allowance for the garage, patio and paving obstructions, which he considered created dead air spaces. Where the ground or subfloor space was excessively damp or subject to frequent flooding, there may be a need to increase the subfloor ventilation by 50%. He did not explain why a mechanical ventilation system was required.
3. In cross-examination Mr McNees said he did not use a hydrometer to measure the moisture. It was put to him that there was no need to increase the ventilation by 50% because the applicant's property was not subject to frequent flooding. Mr McNees' response did not directly address this contention. He said he would not expect the property to be subject to frequent flooding if the issues he had raised were addressed. I found Mr McNees' answer to be non-responsive and inconsistent with his conclusions.
4. Mr McNees said the rear patio restricted airflow and the vent under the timber decking did not provide adequate airflow. Mr Lees disagreed and said the timber on the decking allowed the air to circulate.
5. Mr Lees' report stated the following. The subfloor ventilation had been installed in accordance with the contract. The current area was about 15,000m² and required a vent every two and half metres. The vents had been installed closer than required. The ventilation under the laundry was restricted. Two extra vents could be installed on the north-east and south-west walls as part of the agreed rectification works in item 1(a). Mr Lees did not consider the ground or subfloor space to be excessively damp. I accept his evidence.

1. I prefer the evidence of Mr Lees to Mr McNees. The experts agreed that the vents as installed, complied with the Building Code of Australia. However, Mr McNees' did not explain why the applicant's townhouse was subject to flooding (if any), the effect of dead air spaces (if any), and how this item amounted to a defect. Nor did Mr McNees explain why his suggested rectification works were necessary. On the other hand, Mr Lees gave persuasive evidence as to why the ventilation of the subfloor was not defective.
2. I am not satisfied that Mr McNees' evidence supported his contentions and conclusions. I am not satisfied as to this item.

Front wall is a retaining wall/no membrane/agi drain $3,115 and $3,247_**

1. I deal with Items 1(e) and 2 together because they overlap. The applicant claims the front wall of her home acts as a retaining wall and is not compliant. She claims a membrane and drainage must be installed as part of the retaining wall. She claims costs of $3,115 to install a membrane and drainage and costs of $3,247 to make the front wall compliant. The builder denies liability. Expert evidence was given by the building consultants and by the engineers. I will address each of these disciplines in turn.

1. Mr McNees' report stated the following. There was no evidence of a collection point or point of dispersal for any underfloor surface water. Percolation of such ground water into the soil under the building created a damming effect and limited its escape and saturated the ground. This placed the building at an increased risk of long-term foundation distress. The front wall of the property did not have a membrane or drainage and was in part contributing to the surface water saturation of the subfloor area.
2. Mr McNees stated that the front wall of the building, and to a lesser extent the side return walls, performed the function of retaining walls but their structural capacity to fulfil that function had yet to be established. His report stated that they were considered to be inadequate. His report stated that this fact had been confirmed by the design engineer, Mr G Bird. It is unclear what Mr McNees was relying on in this regard.
3. Mr McNees said that a design engineer should confirm whether the walls fulfilled the function of a retaining wall. Mr McNees stated that alternatively, a design engineer should design and certify a retaining wall structure incorporating a membrane and drainage system which should then be constructed.
4. At the hearing Mr McNees agreed with Mr Lees that the design did not incorporate an AG drain. However, he said if the wall was a retaining wall, standard industry practice required an external waterproof membrane and an AG drain at the base. Mr Lees agreed with Mr McNees about how a retaining wall should be built but reiterated that the wall in question was not a retaining wall.
5. In cross-examination Mr McNees gave evidence that the finished landscape area must be measured above the tanbark and not the soil. He said the tanbark was 50mm to 70mm above the soil and should be removed. In his view the key issue was the height of the driveway and vents.
6. Mr Lees' report stated the following. The building had been constructed in accordance with the design drawings. The SJF design did not call for agi drains. The wall was porous brickwork and was not acting as a retaining wall. Two and a half bricks did not amount to a retaining wall and that calling it a retaining wall, was an exaggeration.
7. Mr Lees disputed the need for Mr McNees' suggested rectification works and did not consider it necessary to install a membrane. Mr McNees agreed that the membrane could be dispensed with if there was a fall away from the house. Mr Lees' report stated the following. Access to the inside of the front wall was limited. The concrete footing at the rear wall was between 200mm to 300mm below the ground surface. He considered it reasonable to assume that footings had been stepped to match the slope of the site and it was likely the brickwork across the front wall was retaining soil which was less than 300mm deep.
8. In cross-examination both Mr McNees and Mr Lees were asked to give their observations of a photograph of a stump located in the subfloor area.[4] Mr McNees said the high tide line shown on the stump was remnant of mud. Mr Lees said the photo showed a mud line on the stump from when the stump had been installed before the installation of the subfloor. Mr Lees was shown another photo[5] of water ponding and asked whether water would leave a high tide mark. Mr Lees said this was a possibility, but that here the water was not muddy.

1. I prefer the evidence of Mr Lees to Mr McNees. Mr McNees gave evidence that a design engineer needed to confirm that the wall was acting as a retaining wall. Mr McNees did not say why he thought the front brickwork was acting as a retaining wall. He said Mr Bird considered the brickwork unacceptable but did not elaborate as to the reason for this view.
2. The applicant has the onus of proving her claim. Mr Bird, the design engineer was not called to give evidence. Mr McNees admitted that the builder built to the design drawings. Mr Lees gave evidence that the wall complied with the design drawings. In the light of that evidence, the real question may be whether Mr Bird's design was deficient. However that claim was not put.
3. I am not satisfied on the evidence, that the wall is acting as retaining wall or is non-compliant. It follows that I am not satisfied that there is a need for an AG pipe or membrane, which Mr McNees said were only required if the wall was a retaining wall. I am not satisfied as to this item.

1. Mr Chelvadurai gave evidence that the brickwork was retaining soil of approximately 160mm to 225mm. On inspection of the subfloor area, he observed cut clay and sand filled against the retaining wall. He found some of the stumps to be wet. He concluded that the external single skin brick wall was acting as a retaining wall.
2. Mr Chelvadurai said the builder needed to construct a double skin brickwork or retaining wall with an agi drain and membrane to protect the subfloor. He recommended an engineer design the retaining wall and certify the rectification work. His suggestions mirrored those of Mr McNees.
3. Mr Chelvadurai said surface drainage must be controlled and water must not pond at the footings or stumps. In cross-examination, he said he did not measure the depth of sand under the subfloor, the depth of the tanbark in the garden or the depth the garden bed soil to the strip footing.
4. Mr Brown, the builder's expert engineer, gave the following evidence. The front brick wall was not a retaining wall. A retaining structure was not required with the base brickwork. Loose garden soil, with tanbark, up against the brickwork, did not create stress or tension in the brickwork. Loose soil was 170mm from the bottom of the vent. A retaining structure was not required with the base brickwork, as the retained amount was less than two bricks. The site cut seen by Mr Chelvadurai, made no difference to the retaining structure.
5. Mr Brown said all single skin brick walls located next to a built up garden bed, could be out of alignment by up to 200mm to 300mm. However, in his opinion, the dead weight of the brick veneer skin going into piers, with sand, or in this case tanbark against it, resulted in the front wall not going into tension. He said there was no build-up of hydrostatic pressure in the brickwork because water was not trapped but flowed down a slope.
6. In cross-examination Mr Brown agreed that single skin brickwork could be a retaining wall. However, he said that in this case the wall was not acting as a retaining wall. Mr Brown agreed that a retaining wall may be required where there was more pressure coming from one side of the wall than the other side. He said this was not the case here, because of the strip footings. He considered that placing tanbark against the single skin brickwork on brick piers would create a negligible load on the front wall.
7. Mr Brown agreed that a damp proof course was required. The builder has agreed to install a damp proof course as part of the rectification works agreed in item 5 and noted in the above table of agreed items. Mr Brown said an AG drain was not needed because the run-off was so minor.

1. I found Mr Chelvadurai's reports and evidence on this item to be unclear. I prefer the evidence of Mr Brown to that of Mr McNees and Mr Chelvadurai. I accept Mr Brown's evidence as set out above, which I found to be reasoned and clear. On the other hand, I found that Mr Chelvadurai's report lacked substance on this item, was far from clear and set out conclusions which were not supported by evidence. Mr Chelvadurai attempted, with little success, to clarify his evidence at the hearing. Mr Chelvadurai did not respond directly to Mr Browns' evidence on these items.
2. Having accepted Mr Brown's evidence where he explained clearly the reasons for his conclusions, I am not satisfied that the wall was a retaining wall or that there was a need for an AG pipe. In so far as there was alleged to be a need for a membrane, which Mr Brown originally thought had been installed and which he later noted had not been installed, this has been included in item 5 and the rectification costs agreed by the builder. I am not satisfied as to the balance of these two claims.

Item 3: Brickwork (voids) in mortar joints $662.50

1. Mr McNees stated that there were voids in mortar joints on the external brickwork visible from a normal viewing position. Mr Lees said some minor voids could be seen when scrutinised in close proximity, but this was not a defect. Mr McNees and Mr Lees agreed that the brickwork needed to be viewed in panels.

1. When I attended the view, I inspected the brickwork, in panels, from a normal viewing position. I observed voids and holes in the mortar, in particular on the external back wall of the applicant's townhouse. I accept that some of these voids and holes will be rectified as part of the agreed rectification works in item 5. However, I prefer the evidence of Mr McNees, who observed defects from a normal viewing position. I will allow $662.50.

1. Mr McNees stated that mortar deposits were visible on the finished exterior brickwork and in the garage. His primary concern lay with the external face of the finished brickwork. He said he was not very concerned about the finish in the garage. I accept his evidence.
2. Mr Lees said the brickwork was of a high standard, but he agreed the photos showed mortar smears. I accept his evidence. He gave evidence that the garage was a class 10a building and did not require the same style finish which I accept. He gave evidence that the external brickwork did not require cleaning.

1. When I attended the view, I observed the external brickwork from a normal viewing position. I observed mortar smears on the face of parts of the external brickwork, in particular on the external brick column and walls near the entrance of the townhouse. I will allow $295.

1. Mr McNees stated that there were no articulation joints between the windows and brickwork, as required by the Building Code of Australia and AS 3700 and AS 4773. It was not disputed that architectural Drawings WD06, 08 and 09 showed full height articulation joints.
2. Mr McNees agreed that there was no evidence of deflection or deviation in the brickwork. His concern was the risk of damage in the future.
3. Mr Lees listed a number of articulation joints that had been installed. He admitted that the builder did not provide a 10mm gap between the brickwork and the side of the window frames and had not complied with AS3700 and AS 4773.2.
4. Mr Lees said there was no evidence of damage or movement of the building and that the appropriate sill gap had been provided between the top and bottom of the windows. He said that only the fully fixed kitchen window, which was 600mm high, had a significant area of brickwork above it but the fact that it did not open would reduce the effects of any foundation movement.
5. In cross-examination, Mr Lees was asked to comment on a short note published by the Victorian Building Authority dated 5 August 2015, on the installation of articulation joints, Mr Lees agreed that if a window butted up against the masonry and there was a lot of movement, then it could be possible that the window could distort.
6. However, Mr Lees said that in this case, there was no evidence of movement. He said that from the time of completion of construction, the width of the articulation joints had not changed, the window frame had not distorted, windows were opening, and the building had not moved and was unlikely to move. I accept Mr Lees' evidence.

1. I accept that the articulation joints have not been installed next to the windows and that the builder has not complied with the relevant Australian Standards. However, Mr McNees and Mr Lees agreed that there was no distortion, deflection or deviation in the brickwork or the window frames and there was no evidence of movement. I accept their evidence. The experts differed on the likelihood of movement in the future. Mr McNees gave evidence, in general terms, about movement occurring in the future.
2. I find that the builder has not installed all of the required articulation joints as required by the relevant Australian Standards. However, I find that there was no evidence of movement or distortion.
3. The applicant has the onus of proving that she has suffered loss or damage because of this failure to comply with the Australian Standards. On the evidence before me I am not satisfied that the applicant has done so. I am not satisfied as to this item.

1. Mr McNees stated that specific UV resistant pipe was not used on the gas line near the gas meter, as required by AS4176:1994. It was not disputed that rectification work has been carried out and the pipe has been covered in black tape. The issue is whether this item, as rectified, remains defective.
2. Mr McNees said that the rectification work may be satisfactory. He said this was a plumbing issue that required plumbing certification. Mr Lees said the exposed pipe was now satisfactorily covered with black tape and successfully protected from UV radiation. I accept Mr Lees' evidence.
3. The applicant submitted that, on the evidence, the Tribunal could not determine whether the protective tape was satisfactory, and that the builder had the onus of proving that its solution complied with the relevant standard.
4. The builder submitted that there was no evidence that the pipe was now defective, nor evidence of the applicant having requested a compliance certificate from the plumber.

1. The applicant has the burden of proof. The applicant must prove that the cover on the pipe, as rectified, is defective. Mr McNees gave evidence that he did not know if the rectification work was satisfactory. I have accepted Mr Lees' evidence that the pipe as covered is satisfactory.
2. On the evidence before me I am not satisfied that the pipe, as rectified, is defective. I am not satisfied as to this item.

1. There was no dispute that the handrails on the stairs were loose. Both Mr McNees and Mr Lees found the handrails to be loose when they inspected the property in June 2017. Mr McNees said the handrails were defective. Mr Lees said this was a maintenance issue. The question is whether this is a maintenance issue or a defect.
2. Mr McNees said the fittings appeared to be either toggle bolts or wall anchors in the plasterboard, or screws of insufficient length to retain the handrails in position when subjected to a load. Mr Lees disagreed and said the handrails were timber with metal mounting brackets which could not use toggle bolts or wall plugs which were designed to be installed directly into timber. Mr Lees said there would have been holes in the plaster if such bolts or wall anchors had been used.
3. Mr Lees said a loose handrail would have been obvious on inspection. He said it was not unusual for handrails to become loose particularly after items of furniture were carried upstairs. Mr McNees said he did not see evidence of furniture damage when he inspected the property.

1. It was not disputed that the handrails were first noted as being loose in the Paas report in late August 2016, after the applicant had taken possession of the property. The Paas report noted that the handrails on the stairs needed to be properly secured to the wall. Ten months later Mr McNees inspected the loose handrails. He noted that they represented a potential personal injury risk at that time.
2. I prefer the evidence of Mr Lees to Mr McNees. Mr Lees clearly explained the way in which the handrails had been installed, and why toggle bolts had not been used. He recommended a simple and inexpensive method of rectification. On the other hand, Mr McNees's conclusions were based on assumptions. He did not address the fact that 10 months earlier the Paas report noted the need to secure the handrails to the wall.
3. There was no evidence that the handrails have been tightened since they were first noted as being loose in August 2016, or since Mr Lees and Mr McNees observed them to be loose in mid-2017. I accept Mr Lees' evidence that if they existed at the time, loose handrails would have been clear for the applicant to see on inspection of the townhouse prior to purchase.
4. I accept that the handrails need to be tightened because they have become loose. They needed to be tightened when they were first noted to be loose in August 2016. On the evidence they have continued to loosen because they have not been tightened.
5. I am not satisfied on McNees' evidence, that the handrails as installed are defective. I find this item to be a maintenance issue.

1. The applicant claims that the builder failed to comply with the relevant plans in installing the heating system and that the heating unit is not working efficiently. The applicant claims damages of $2,590.
2. It was not disputed that the installation of the return air grille and heating unit did not comply with the drawings. The relevant drawings showed the heating unit to be on the exterior wall and the return air grille to be on the ground floor. The return air grille was installed in the first floor ceiling and the heating unit was installed in the roof space.
3. The experts agreed that the heating system could not be installed in accordance with the drawings. Mr McNees stated that the heating was not functioning as intended. He said the applicant told him of the extreme differences in temperature and that upstairs was hotter than downstairs.
4. Mr McNees said the return air vents should have been located at floor level. He said the ducted heating system was not capable of making efficient use of the energy required for its operation. However, in cross-examination, he conceded that determining energy efficiency was beyond the scope of his expertise.
5. Mr McNees said the return air grille should be relocated to the ground floor and the first floor ceiling patched. Alternatively, he said the manufacturer needed to certify that the heater was operating efficiently and effectively at its optimum performance levels.
6. Mr Lees said locating the return air in the first floor ceiling was not the most efficient way to go but it was not defective. He said draftsmen did not always allow for ducting and, during construction, allowances and compromises needed to be made. He said calculating heating efficiency was beyond the scope of his report.
7. The applicant's evidence, as set out in her witness statement, was that she corresponded with the installer of the heating system, Specialised Heating and Cooling (SpecAir), between September 2016 and May 2018 when SpecAir told her it would arrange a time to inspect the system. At the time the applicant filed her witness statement in February 2019, SpecAir had not returned to inspect the heating system.
8. At the hearing the applicant gave oral evidence that went beyond the evidence in her witness statement. The applicant said that SpecAir returned to her property and inspected the heating system in mid-April 2019, and did further work on the system in late April 2019. The applicant said that when Mr McNees gave his evidence at the hearing, she had not told him of the further work carried out by SpecAir in late April 2019.
9. The applicant gave the following evidence. In mid-April 2019, David Stanley, Managing Director, of SpecAir, and Shaun Stanley inspected the heating unit in her townhouse and found upstairs to be much hotter than downstairs.
10. After his inspection, Mr Stanley sent the applicant an email dated 17 April 2019 reporting on his visit a couple of days earlier. Mr Stanley's email stated that there was a significant difference in the temperature between the upstairs and downstairs area, which was common for double storey homes.
11. Mr Stanley proposed in his email that SpecAir install thermostat zones controlling the volume of airflow to each of the first floor bedrooms and balance the airflow to the ceiling diffuser in the open area on first floor. He stated that the ducting and connections in the ceiling had been properly installed in accordance with regulations. He stated that the airflow to the ceiling diffusers was very good with more than ample airflow being provided to each area upstairs and downstairs.
12. The applicant said SpecAir returned to her property at the end of April 2019, and installed a thermostat and sensors in the bedrooms, to balance the airflow. She said SpecAir's further work did not fix the heating system.
13. The applicant said she tested the heating system over two nights. She set the thermostats, turned on the sensors in the bedrooms as directed. She said the calibration on the upstairs screen disappeared and that the screens did not show the relevant information. She said her testing showed that the heating system did not work properly.
14. Mr McEnaney agreed that the heating system had not been installed as shown on the plans. He said it became clear at the tendering/quotation stage and before construction work started, that the system, as drawn, could not work. He said the heating installer explained to the developer how the system would work. He said it was agreed that the return air could not be installed on the ground floor and the heating unit would not be placed outside.
15. Counsel for the builder submitted that this was a contractual matter between the builder and the developer and in any event, there was no evidence of any loss or damage. The applicant submitted that the unit was in the wrong place, did not operate efficiently and should be moved to the ground floor.

1. When they gave their evidence, Mr McNees and Mr Lees were not aware of the SpecAir's visit to the applicant's property at the end of April 2019, nor the outcome of those visits. Further, the experts conceded that they did not have expertise in determining energy efficiency.
2. The applicant gave evidence that the heating system was not working. Neither Mr Stanley, nor anyone from SpecAir, was called to give evidence about the state of the heating system. Mr McNees did not explain how the location of the return air grille was the cause of the problem.
3. The applicant bears the onus of proving that the builder's original work was a breach of the warranties, and that SpecAir's further work did not rectify the heating system. Mr Stanley's email identified that it is usual to have a discrepancy between upstairs and downstairs. He set out what was required to provide an efficient, well performing heating system and apparently carried out that work.
4. On the evidence before me I am not satisfied that the heating system does not work or needs to be replaced or repositioned. Nor am I able to make a determination about whether the system is working at 'optimum efficiency'.

1. Mr McNees observed the door binding in August 2016. There was no dispute that the builder had attempted to adjust the binding after August 2016, and that following those works the shower door was binding. Mr Lees said that the binding was a maintenance issue and arose more than three months after the occupancy permit was issued on 27 April 2016.

1. On the evidence I find that this is more than a maintenance issue and that the binding remains a defect. I will allow $85.00.

1. Mr McNees stated that the builder did not construct the heater platform in accordance with truss manufacturer's installation requirements and that the heater platform should have been located across all three trusses or more, by way of bearers.
2. There was no dispute that the builder had carried out rectification works. Mr McNees said the builder was liable as it has to obtain a manufacturer's certificate certifying that the rectification works complied with its recommendations. In cross-examination Mr McNees agreed that the truss manufacturer's requirements had now been achieved.
3. Mr Lees said the defect has been rectified and no further work was required. Mr Lees gave evidence that the construction of the platform was satisfactory, safe and in accordance with the truss manufacturer's requirements as identified by Mr McNees. I accept Mr Lees' evidence.

1. The applicant bears the onus of proving that the item as rectified, is still defective. As Mr McNees agreed that the item as installed, complied with the manufacturer's requirements, I am not satisfied as to this item.

1. Mr McNees' report stated that the kitchen sink was leaking water into the cupboard below because it was not sealed. At the hearing Mr McNees said the sink had been sealed but was not performing at its optimum. He said he put water on the bench top and observed water going into the area under the sink.
2. Mr Lees did not consider this to be a defect. He stated that the waste pipe under the sink had been temporarily sealed with tape from where the dishwasher waste was removed. In his opinion this was the most likely cause of water in the cupboard. He did not see any evidence of watermarks and considered that the sink had been sealed sufficiently to the benchtop. He did not do a test on his inspection.

1. I prefer the evidence of Mr McNees to Mr Lees. Mr McNees tested the sink and found water to be leaking from the benchtop. Mr Lees did not do a water test. I find that the sink has not been properly sealed as is defective. I will allow $75.00.

1. The applicant claims that one of her boundary fences encroaches onto her neighbour's property. She claims damages of $997.50 to relocate the fence. However, she claims that relocation of the fence will reduce access to her side path because of the position of the water tank. The applicant has not agreed to the fencer moving the fence.
2. Mr McNees' report stated that he observed a deviation in the fence line of the side paling fence at the rear of the applicant's property between the garage and the rear fence corner. He stated that approximately 5 lineal metres of the newly constructed fence was built some 200mm to 300mm within the neighbouring property.
3. Beyond his observations, Mr McNees did not explain the basis of his calculations. He stated the builder was responsible for this item. He stated the rectification work involved the realignment of the boundary fence and the relocation of the current tank or installation of a narrow tank.
4. Mr McNees' report included submissions for the applicant in that he set out the evidence that he understood the parties would give at the hearing on this issue. Mr McNees' statement is not expert evidence. Mr McNees did not give any direct evidence about this item beyond what he observed during his inspection of the property. Mr Lees could not make any comment on the title alignment.
5. This is a contractual issue for determination. The following questions arise:
   • (a) Did the building contract require the builder to construct the fences?
   • (b) If it did, was the builder required to place the fence on the boundary line?

Did the building contract require the builder to construct the fences?

1. The applicant gave evidence that fencing formed part of the building contract. She said fencing was listed in the builder's inclusion statement which formed part of the building contract. The applicant relied on a document headed "units 1-6, 307 Maroondah Highway Croydon North- Inclusion List." The inclusion list listed fencing. It stated "Fencing: Internal and new boundary fences in natural treated pine, heights as per Plans".
2. Mr McEnaney gave evidence that fencing was not part of the building contract. He said after building started, the developer asked him to find a fencer. He arranged for Taylor Fencing to build the fences, paid Taylor Fencing and included the costs in one of the progress payments under the building contract.

1. I find that the 'Inclusion list' formed part of the building contract. I also find that the building contract required the builder to construct fences on the property. Whether the builder had further discussions with the developer about the construction of the fences after starting the build is not to the point. The building contract expressly provided for the builder to provide internal and new boundary fences.

Was the builder required to construct the fences on the boundary line?

1. The applicant claims that the builder was to construct the fences on the boundary line. The builder disputes the claim. The builder says that the original fences were to be removed and the boundary fences constructed in the same place as the original fences.
2. The applicant gave evidence that she became aware of the fence issue after the settlement of the contract of sale. She said that Taylor Fencing Victoria Pty Ltd, constructed the boundary fence but did not place it on the boundary line.
3. The applicant said Taylor Fencing notified her by letter dated 22 September 2016, of the proposed relocation of her fence adjoining the neighbouring property at 309 Maroondah Highway. After receiving their letter, the applicant telephoned Taylor Fencing and spoke to Mr Bower who said his company constructed her boundary fence in the exact location of the original fence without pegs or markers.
4. The applicant relied on Taylor Fencing's quotation to the builder dated 7 January 2016. The scope of work was for the removal and disposal of the original fence. The applicant also relied on Taylor Fencing's invoice to the builder dated 21 April 2016 for work which included taking down and removing the original fence.
5. The applicant relied on a survey plan of the property carried out by JCA Land Consultants on 18 July 2016 which she said showed the encroachment of the boundary fence at one point onto her property and another point onto her neighbour's property.
6. The applicant subpoenaed Mr Bower to give evidence. I did not find Mr Bower's evidence to be of any assistance as he could not recall anything about the fencing contract.

1. The 'Inclusion list' in the building contract is silent as to the location of the boundary fences. The issue is whether the boundary fences were to be constructed on a survey line or in the exact location of the original fence.
2. The fencing contract between the builder and Taylor Fencing related to the fences bordering the entire site and not just the applicant's property. It required the fencer to pull down and remove the original pine fences. It was not disputed that Taylor Fencing built the fences in exactly the same location as the original fences. The contract did not require Taylor Fencing to follow a survey plan.
3. I consider that the contract between fencing contractor and the builder is not relevant in determining the terms of the building contract. The terms of the fencing contract are not incorporated by reference into the building contract.
4. The issue is whether the builder has breached any of the warranties in s8 of the DBC Act. I find that the building contract required the builder to construct the boundary fences on the property and that is what the builder has done.
5. I find that the boundary fence was constructed in the exact location of the original fence. On the evidence before me I find that the building contract did not expressly require the builder to construct fences on the boundary line as surveyed and that there was no requirement for it to do so. I am not satisfied as to this item.

The applicant's real issue of concern - mitigation of loss

1. In cross-examination the applicant agreed that placing the fence on the boundary line may not change greatly the current access to her path because of the location of the water tank. The applicant said her real concern was about the limited access to the side path at the rear of her townhouse which she said was caused by the location of the boundary fence and the water tank.
2. In cross-examination the applicant said that she did not agree to Taylor Fencing relocating the boundary fence because that would further reduce access to the side of her property. The applicant submitted that access to the side path was always to be available, because of the doors leading from the garage and the laundry to that area. She submitted that she expected access to the path based on the fact that she could walk there now.

1. I have found that the builder is not liable for this item. However, if I had found the builder liable, I do not consider that it would have been reasonable to award costs where the applicant has refused to allow the relocation works to be carried out because she does not want the fence to be moved.
2. Further, the applicant was aware of the position of the water tank when she inspected the property. Also, it is a usual term in contracts for the sale of land for a purchaser to check the boundaries of the land being purchased. The applicant cannot now complain that the builder is responsible for providing a fence not on a boundary or less access than she considers to be acceptable on the side of her property.

1. The bathroom towel rail was not referred to in the Bell report prepared in June 2016 or the Paas report prepared in August 2016. In mid-2017, Mr McNees observed that the bathroom towel rail was inadequately secured and needed to be resecured.
2. Mr Lees stated that the towel rail had come loose from the brackets on the wall and his photo showed the bracket secured to the wall. Mr Lees considered this to be a maintenance issue and not a defective item. He recommended that the towel rail be refitted to the brackets. I accept Mr Lees' evidence.

1. I prefer the evidence of Mr Lees to Mr McNees. It was not disputed that the towel rail has detached from the wall. On the inspection I observed that the towel rail had come loose from the brackets on the wall but that the brackets were secured to the wall.
2. This item was not noted until 2017. It was not noted prior to the applicant purchasing the property or soon after she moved in. I find this to be a maintenance issue. I am not satisfied as to this item.

1. Mr McNees stated the builder installed a slimline water tank of approximately 3000 litres, fitted with a nominal 40mm diameter drainage pipe at its proximate mid-height that connected to a downpipe that fed directly into the stormwater drainage system. He stated that the installation and connection of the pipework had halved the storage capacity of the tank and reduced the available and mandated amount of water available for recycling.
2. Mr McNees stated that the builder had failed to provide the requisite 2,100 litres of stormwater retention for recycling within the applicant's home. In his opinion the tank provided inadequate capacity for recycling. He estimated the tank to be holding about 1,500 litres.
3. Mr McNees stated that the builder must establish that it had supplied the mandated litres. He stated that if the existing tank was found to have insufficient storage then the builder must supply, install, connect and commission a tank capable of storing the mandated 2,100 litres. He did not provide technical evidence of the actual capacity of the installed tank with the overflow pipe.
4. In cross-examination Mr McNees said he did not measure the dimensions of the tank but considered the tank to be too wide for the path. He recommended the installation of a super slim tank, about 200mm smaller than the tank supplied. In his opinion the slimline tank would increase the capacity of the stormwater and provide an appropriately sized path.
5. Mr Lees stated that the tank was connected to a pressure pump and the WC system as required. In his opinion no further work was required. He said the tank was approximately 3,500 litres with an overflow pipe above the midline on the tank. He estimated half the tank to have a capacity of 1,750 litres. He said that the 6 Star energy rating required 2,000 litres to be retained.

1. I prefer Mr Lees' evidence to Mr McNees. There was no evidence to establish non-compliance with the plans. Nor was there evidence of the dimensions or the actual capacity of the tank as installed.
2. Mr McNees did not provide any technical evidence to support his claim that the tank's storage capacity was inadequate. Mr McNees did not know the capacity of the tank.
3. I do not accept Mr McNees' evidence that it was for the builder to show that the tank supplied the mandated litres. The applicant must prove her claim. The builder is not required to disprove the applicant's allegation. I am not satisfied that the applicant has made out this claim.

1. In February 2017 the applicant emailed the Maroondah City Council with a concern about water holding and stagnating in the grated stormwater pits on her property. The applicant requested the Council to rectify the problem. The Council inspected the stormwater pits and responded to the applicant by letter dated 24 March 2017.
2. Mr McNees' evidence was based on the Council's letter to the applicant. His report included the following extracts from Council's letter:

The base of the grated orifice (pipe) pit in the north-west corner of the property appeared to have failed.

When pushed with a sharp object, the base crumbled suggesting it was not constructed with an appropriate strength concrete. As a result of the base failing and the extra debris within the pit, water is ponding in the pit.

Council believes that the base of the pit failing should be considered a building defect......

1. Mr McNees' report did not include the entire paragraph which read:

Council believes that the base of the pit failing should be considered a building defect, which the owners corporation could follow up with the builder under the building warranty. Furthermore, given the drainage system is the responsibility of the owners corporation, it is suggested that the owners corporation engage a licensed plumber to clean out and check the function of the drainage system to ensure that there are no blockages in any of the pits or pipes. A plumber could easily rectify the defective base of the pit when maintaining the drainage system.

1. Mr McNees report stated that the pit was located near the rear masonry wall and that the drainage in that location was designed and constructed as a detention system. In his opinion, the porous nature of the pit base allowed the retained stormwater to escape immediately beside the rear foundation, placing the building at an increased risk of foundation rotation distress.
2. Mr McNees' report concluded that the defect was caused by the failure of the builder to build a structurally stable water retentive drainage system. He stated that the builder should remove and replace the defective pit bases in the stormwater drainage system. At the hearing Mr McNees said the inference from the Council's letter was that the pit was leaking.
3. Mr Lees stated that the pit was performing as required. Mr Lees said that the Council's letter did not say that the pit was leaking. Mr Lees said that it was not leaking at the inspection.
4. Mr McNees' report acknowledged that the Owners Corporation owned the detention drainage lines and pits. However, he felt that the matter should be dealt with in the applicant's claim. Mr Lees stated that the pit was part of the licensed plumbers works and that the Owner's Corporation should arrange for the pit to be serviced by the licensed plumber. Mr Lees stated that the pit was owned by the Owner's Corporation.
5. At the hearing Mr McNees and Mr Lees spent some time discussing the way in which pits worked and described "parging" in the context of how a pit managed drainage with a partial retention system.

1. I prefer the evidence of Mr Lees to the evidence of Mr McNees and the observations of the Maroondah City Council set out in its letter to the applicant dated 24 March 2017. Mr McNees did no more than reiterate the contents of the Council's letter: that the base of the pit appeared to have failed because it crumbled when pushed with a sharp object. No testing was done by the Council to determine the strength of the concrete and no leak was detected.
2. Mr McNees' report did not refer to the following issues noted in the Council's letter. It was the responsibility of the Owners Corporation to maintain and ensure the ongoing operation of the entire drainage and detention system. The drainage system had been certified by a registered engineer and also by the Council's engineers. The system appeared functional and in working order at the time of the inspections. The Council observed during its inspection that the drainage and detention system had not been adequately cleaned and maintained, contributing towards the pits and pipes being partially blocked and holding water.
3. Neither Tim Dickinson, who inspected the pit, nor Stephen O'Brien, the Council's acting manager - engineering and building services, were called to give evidence and could not be questioned about the Council's inspection. On the other hand, Mr Lees gave evidence about his inspection of the pit and gave his opinion on the issues raised in the Council's letter.
4. The applicant gave evidence and submitted that she had the authority to make this claim on behalf of the Owner's Corporation. Even if the applicant had such authority, I find that she would have had to make the claim on behalf of the Owner's Corporation. The applicant has not issued proceedings on behalf of the Owner's Corporation. I am not satisfied as to this item.

1. Mr McNees' report stated that the stormwater drainage line adjacent to the sliding door at the rear of the applicant's property, had been laid in a direction that was opposite to the flow.
2. Mr Lees said he did not include this item in his report because he had not inspected it at the time. At the hearing Mr Lees reviewed this item in Mr McNees' report. Mr Lees agreed it seemed strange that the stormwater pipe was going in this direction and considered it likely that it did not conform with the plumbing regulations.
3. Mr Lees said that when he attended the view of the applicant's property on the first day of the hearing, he noticed that the plumber had not discharged the stormwater into the main retention pit in the north-west corner of the applicant's property. However, he said that if water was going against the flow then each time it rained there would have been water at the base of the downpipe which had not been noted by Mr McNees. Mr McNees agreed with Mr Lees' contention. I accept the experts' evidence.
4. Mr Lees reviewed the drainage design plan drafted by SJF and Associates, consulting surveyors and civil engineers. He agreed that the plan showed the downpipe draining to pit no 2 when the pipes, as installed, appeared to drain to pit no 3.
5. In Mr Lees' opinion it was likely that the pipe had been raised to get sufficient fall to drain into pit no 3. He said this resulted in a lack of a cover over the pipe near the patio area at the rear of the applicant's property. He said it did not matter that the downpipe was not draining to pit no 2. I accept Mr Lees' evidence.
6. Mr McNees considered Mr Lees' hypothesis to be reasonable. He agreed that there would otherwise be backflow at the connection between the storm water pipe and the downpipe which he did not observe. He said if the pipe was kept high and then dropped into the pit, it would discharge as required. I accept his evidence.
7. Mr McNees and Mr Lees agreed that the top edge of the drainage line was exposed at ground level with no effective cover. Mr McNees said his principal concern was the exposure of the pipe. The experts agreed that it could be rectified by extending the decking at a cost of $650. Such works would, in effect, hide the lack of cover over the pipe. Alternatively, they agreed that concrete could be poured over the pipe at a cost of $200.
8. Mr McNees said the applicant may prefer the decking to be extended over the pipe rather than concrete being poured over the pipe. The applicant was asked and said she preferred the decking. Mr Lees considered that the concrete was a reasonable solution. The builder submitted that the rectification costs must be reasonable.

1. Having heard the evidence of the experts who agreed on a number of contentions, albeit some hypothetical, I am satisfied that the drainage discharge appears to be going to pit no 3 whereas the plans require the drainage discharge to go to pit no 2.
2. I find that the builder has not complied with the drainage plan in this regard. However, I find that there is no requirement to remove and reinstall the pipe. I accept Mr Lees' evidence that the plumber's failure to comply with the plan does not matter in this case. There was no evidence given of water going against the flow when it rained. There was also no evidence from the plumber to confirm or contradict the hypotheses.
3. The experts agreed that the pipe in question was partly exposed because the plumber appeared to have raised the pipe to provide the correct fall to pit no 3. However, Mr Lees considered the drainage to be working appropriately and for there to be no need to remove it. Further Mr McNees said his principal concern lay with the exposure of the pipe.
4. The experts agreed that the exposed pipe was a defect and I find it to be so. If the pipe had been installed in compliance with the plans it would have been installed in the ground and not seen. I consider that pouring concrete over a pipe that was not meant to be seen, will be unsightly. I will allow rectification costs of $650, agreed by the experts, to extend the decking to cover the pipe so that the pipe cannot be seen.

1. The building contract required the builder to install fly screens to the aluminium sliding glass doors located at the back of the property. There are no fly screens on those doors. The builder says that the lack of fly screens on the sliding glass doors is a patent defect and would have been obvious when the applicant inspected the property prior to sale.
2. The applicant said that fly screens were needed, and the lack of fly screens amounted to a defect. In cross-examination it was put to the applicant that she would have noticed the lack of fly screens when she inspected the property on the day of purchase. In response she said she saw the glass doors which were fully open at that time. She could not recall whether the fly screens were there.
3. In closing submissions, the applicant submitted that the only way she could have known whether the fly screens should have been installed was if she had been given the specifications at the time. She submitted that without the specifications she was denied the opportunity to know about or raise the issue of the lack of fly screens. I find that the applicant's submission is not to the point. The issue is whether the lack of fly screens could reasonably have been observed at the inspection.
4. Mr McEnaney agreed flywire screens were to be installed under the building contract with the developer. He said developers often sold properties without flyscreens because they did not look as good if they were left on. The builder submitted that the absence of a flywire door would have been noticeable on a reasonable inspection. It submitted that this was a contractual issue between the builder and the developer.
5. Mr McNees said the absence of flyscreens was a defect. Mr Lees stated that this was a contractual issue between the builder and the developer but not a building defect. He said the lack of fly screens on the rear sliding doors would have been obvious at the time of purchase. I accept his evidence.

1. I find that the building contract required the builder to install flyscreens on the sliding glass doors at the back of the property and that the flyscreens were not attached at the time of purchase.
2. The price paid for a property takes into account a number of factors which include location and size as well as patent defects. Patent defects are defects which could have been reasonably observable on inspection of the applicant's property prior to purchase. If a defect is patent no allowance will be made to the applicant because the defect will be taken to have been reflected in the purchase price, whether or not the applicant observed the defect.[6]
3. Having heard the evidence of Mr Lees and Mr McEnaney, and having inspected the property, I am satisfied that it would have been obvious to a person inspecting the property that flyscreens were not installed on the glass sliding doors at the back of the property at the time of purchase.
4. I find that the defect was patent or noticeable on an inspection of the applicant's property and therefore reflected in the purchase price. I am not satisfied as to this item.

1. Mr McNees's report stated that the garage access door had been split above the latch. He considered the damage appeared to have been sustained during installation of the lock. At the hearing he gave evidence that the split followed the grain. He said the split had been made before painting. He considered this to be an auger issue.
2. Mr Lees disagreed. He considered that the split occurred after painting and that the door latch was installed before painting. He said a chisel line would create a straight split and that in this case there was a diagonal line through the latch. He considered that the door style appeared to have been split on the door being allowed to slam shut and was a maintenance issue.
3. I prefer the evidence of Mr Lees to Mr McNees. I found Mr Lees' evidence to be more persuasive, reasonable and probable. Further, neither the Bell report nor the Paas report noted this item following inspections of the doors at the applicant's property. I am not satisfied as to this item.

Items 53A and 53B: Water tank support $778.88

1. The applicant makes two claims about the support of the water tank. First, Mr McNees' report stated that the builder failed to provide a structurally stable or adequate base to support the rainwater tank. The tank was said to be set on crushed rock, sloping towards the rear of the property. Second, the report stated that the discharge from the hot water service pressure relief valve was directed to the brick wall where foundation backfilling had occurred.
2. Mr McNees' report stated that between June-July 2018 and his further inspection in November 2018, there was further subsidence of the base of the tank. He said the tank was bringing direct pressure to bear on the brick wall, causing distortion. Rectification works were needed to provide a structurally stable base and make good any distortion in the brick wall.
3. Mr Brown said the overflow pipe for the hot water system should be directed into the overflow relief gully to the left of the hot water unit. Mr Lees considered the rectification works required the existing overflow relief pipe to be removed, and a copper relief pipe installed and placed so as to discharge over the overflow relief gully. The parties have agreed $405 for this item in the table in paragraph 32 [item 8].
4. Mr Brown carried out a further inspection of the applicant's property on 28 February 2019. He considered there to be some minor movement of the crushed rock supporting the tank which he said should be corrected to maintain a gap between the water tank and the building.
5. Mr Brown stated that the inlet into the tank was completely blocked with leaves and some of the leaves appeared to be fairly old. In his opinion this would cause overflow and degradation of the base of the water tank. He considered this to be an ongoing maintenance item. He considered that the volume of water required to unsettle the tank was unlikely to come from the hot water tank relief valve.
6. The applicant said that she had the gutters regularly cleaned and that some leaves in the inlet would not cause this problem. She relied on maintenance invoices from Portervac,[7] and Gav's Gutter Cleaning,[8] which she said confirmed the inlet to the tank was regularly cleared. Portervac's work, as set out in its invoices, was described as cleaning and clearing all roof gutters and valleys, clearing and checking downpipes and rain heads and removing major debris from the roof area, cleaning up work areas and removing waste from site. Gav's Gutter invoice dated 17 May 2018, was for cleaning gutters.

1. As to the alleged defective base of the tank, I prefer the evidence of Mr Brown to Mr McNees and the applicant. Mr Brown's photo shows the inlet of the tank to be covered in leaves. Mr Brown said this was a maintenance issue that needed to be dealt with immediately. Mr McNees did not give evidence about the blocked inlet but noted subsidence had increased over a period of nearly 18 months.
2. I accept Mr Brown's evidence that the water from the overflow pipe would not have caused this issue. I also accept Mr Brown's evidence that the subsidence appears to have been caused by the inlet to the tank not being maintained. I am not satisfied that the invoices on which the applicant relied, substantiated the applicant's claim. They do not refer to the cleaning of the inlet of the water tank.[9] I am not satisfied that the cleaning of the gutters included the cleaning of the inlet to the water tank.
3. I am not satisfied on Mr McNees' evidence that distortion to the wall, if any, has been caused by defective works. I did not find Mr McNees' evidence to be plausible on this issue. I find this item to be a maintenance item.

1. The applicant claims that the strip and pad footings have not been founded at the certified designed and permit approved depths or onto rock. The applicant claims damages from the builder for two items. First, the costs of restumping and re-levelling the stumps (item 53). Second, the cost of underpinning the strip footings (item 54).
2. The applicant did not make a claim about the bearing capacity of the footings which was dealt with at length by Mr Brown in his report. At the hearing Mr Chelvadurai said that he had nothing to say about the bearing capacity. As the bearing capacity does not form part of the applicant's claim, I do not deal with that issue.
3. The experts gave evidence about the pad and strip footings concurrently as they form a part of one system, the footing system. As will become apparent, for sake of clarity I deal separately with each of these items.

Item 53: Defective Stump Pads - Floor Restumping Works $31,438

1. The applicant claims that the stump pads have not been founded at the certified designed and permit approved depths or onto rock. She claims damages of $31,438. The builder denies liability. It says there is no evidence of any actual or potential loss or damage, nor evidence of structural movement in the applicant's property.

1. Mr Chelvadurai gave the following evidence. The footing plans for the applicant's property, in engineering drawing 108445-S3 (Drawing S3), required pad footings to be founded a minimum of 100mm onto rock.[10] He said the stump pads were founded 800mm below ground and 250mm into clay and not into rock and did not comply with Drawing S3.
2. Mr Chelvadurai based his opinion on a footing check of a stump pad footing carried out by Civil & Soil Pty Ltd in 2018 on his request. Mr Bolwell of Civil & Soil set out his findings in his site sketch dated 8 May 2018 (Civil & Soil footing check).[11] Mr Chelvadurai said the Civil & Soil footing check noted the depth of the pad footing to be 800mm. He said Civil & Soil described the subsurface material between the depths of 550mm to 900mm, to be: "stiff clay, tan moist, 900 end".
3. Mr Chelvadurai said that the design engineer, Mr Bird took into account the soil report prepared by Foundation Exploration, geotechnical engineers, dated 17 February 2015, (Foundation Soil Report) when drafting Drawing S3.
4. Mr Chelvadurai included the content of an email from Mr Bird to the applicant dated 6 June 2018 (Mr Bird's email), in his supplementary report.[12] He said that he based his conclusions on Mr Bird's email. The builder objected to any weight being given to Mr Bird's email because he was not called to give evidence nor available to be questioned at the hearing.
5. Mr Bird's email set out his response to the applicant's questions about the engineering drawings he prepared and the Foundation Soil Report. First, Mr Bird's email confirmed the undisputed findings of the Foundation Soil Report, that rock was encountered at depths between 1m (on the applicant's property) and 1.3m. Second, it confirmed the undisputed fact that Drawing S3 has not been amended.
6. Mr Bird commented on the expected founding depth of rock, if the site had not been cut. I place no weight on his comments for the following reasons. First, Mr Bird was not called to give evidence and explain the basis for his conclusion. Second, the Foundation Soil Report dealt with site preparation and the need to excavate and cut the site.[13] Third, when cross-examined, Mr Chelvadurai conceded that the site was to be stripped of 100mm of topsoil before construction.
7. In cross-examination Mr Chelvadurai admitted that, instead of the fill starting at 0.2m as shown in the borehole log sheet,[14] the fill would have started at 0.1m. He conceded that this would have reduced the depth to the rock from 1000mm to 900mm. Further, in cross-examination, Mr Chelvadurai admitted that AS2870 allowed for some movement in buildings and that the pad footings were compliant with AS2870.
8. Mr Chelvadurai said Mr Bird designed the stump pads to be founded 100mm into rock, to take into account abnormal moisture conditions arising from the presence of trees noted in the special footing recommendations at paragraph 6.3 of the Foundation Soil Report.
9. Mr Chevaldurai conceded when cross examined, that the special footing recommendations set out in the Foundation Soil Report, were of no relevance to the applicant's footings because they were designed for the oak tree, which was not in, or in close proximity to, the applicant's property.[15] Mr Chelvadurai conceded that the Foundation Soil Report noted that no additional footing requirements were needed for the pine tree located near the applicant's property.
10. In cross-examination Mr Chelvadurai also admitted that he did not see any cracks in the applicant's townhouse. He admitted that cracks can clearly be seen in brick veneer properties, so he would have expected to see cracks if there were non-performance of the footings. He said if there were structural defects, cracking would not occur within the first few years after construction, but at a later time.
11. In cross-examination, when asked about the possibility of cracking in the future, Mr Chelvadurai said that the brickwork would crack because of water seepage through the stumps into the clay and then the floors were likely to move. I fail to see how this relates in any way to the depth of the footings. He said if there were no water seepage, then the building could move in the long-term, or after 2 to 3 years, to a level outside acceptable limits.

1. Mr Brown gave evidence that the builder had complied with the structural engineering drawings and the Foundation Soil Report. He considered there to be a conflict with the drawings. He said the builder had correctly constructed the pad footings in accordance with the Foundation Soil Report.
2. Mr Brown gave the following evidence. He took a couple of borehole logs of the subsurface profile of the applicant's property. They were almost identical to the borehole logs in the Foundation Soil Report. Between 800mm and 1250 mm, the subsurface was: "clay, hard to drill i.e. near refusal (no silt/sand). Soft to touch, light yellow to light brown, very dry and friable."
3. He said his borehole log, by hand auguring, could not readily get much deeper than 1.25m and his results were fairly similar to the Civil & Soil footing check. He said the siltstone fabric started to come through at about 1m. He said the "near refusal" was a sign that it was extremely weathered rock. He said his borehole logs matched the depth to which the foundations were proven.
4. Mr Brown gave evidence that the depth of the stump pad at 800mm, as noted in B2 of the Civil & Soil footing check, showed the stumps to be compliant with the engineering drawings and the Foundation Soil Report. He said that Civil & Soil noted "stiff clay", between 550mm and 900mm, which he said was similar to extremely weathered rock.
5. Mr Brown said that drawing 108445-S2 of the footing plan for unit 3 (which was not the applicant's property) (Drawing S2), included specific notes and a reference to the Foundation Soil Report. Mr Brown said that each of the engineering drawings of the footing plans for the 6 units, (drawing nos. 108445-S1 to S4), included the note to found all pad footings 100mm minimum onto rock. He said that drawing nos. S5 and S6 (footing details) for the units contained standard details for construction and showed the minimum foundation depth to be 750mm, as noted in the Foundation Soil Report.
6. Mr Brown considered that the design engineer had mistakenly included the note to found the footings 100mm onto rock in Drawing S3. In his opinion the note may have been inadvertently cut and pasted into the drawings of the footings plans for various units, including the applicant's property, when it was not required. He said the builder had correctly ignored the note during construction of the applicant's property.
7. He considered the builder had correctly constructed the pad footings on the applicant's property in accordance with the recommendations in the Foundation Soil Report and had founded the footings at least 100mm into clay. He considered that the conflict between the drawings could be resolved by adopting the footing recommendations of the Foundation Soil Report in paragraph 6.1. Mr Brown considered the construction to be in accordance with the engineering drawings with the stumps founded at 800 mm deep as noted in the Civil & Soil footing check.
8. Mr Brown said that the Foundation Soil Report made no recommendation to go into rock. He said that the Foundation Soil Report's borehole log sheets which referred to extremely weathered siltstone rock, could be classified as clay.
9. Mr Brown gave evidence about the ground reactivity and site Classification M and based his opinion on the Foundation Soil Report and his findings from his borehole logs. He considered that the overall settlement, and any potential movement of the property, would be within tolerance levels.
10. He considered that if the footings on the applicant's property were left as constructed, there may be movement of 5mm to 8mm over an expected life of 50 years.[16] He said there may be a slight difference if there were water seepage, but that the likelihood of movement being outside acceptable limits, was extremely small. He said that having reviewed the Foundation Soil Report, and the findings of his borehole logs, he considered that there would not be much movement at all.

1. The Foundation Soil Report encountered clay in borehole log sheet 3, at a depth of 700mm. It described the clay as very stiff. On the basis of Civil & Soil finding the depth of the stump pad to be at 800mm below ground I find that the stump pad has been founded at a depth of 800mm into clay.
2. The first question is whether the builder was required to follow the note in Drawing S3 or the recommendations in the Foundation Soil Report to found the stump pads to a minimum of 750mm. The second question is whether the applicant has suffered any loss or damage.
3. I accept that there is an inconsistency between the note in Drawing S3 (footing plans for the applicant's property) and the pad footing recommendations set out in the Foundation Soil Report. I also accept that there is an inconsistency between the note in Drawing S3 and the note at paragraph 12 of the general notes in Drawing 108445 - N 1.
4. I accept the evidence of Mr Brown that the builder was to follow the Foundation Soil Report and not the note in Drawing S3. I do not accept Mr Chelvadurai's evidence that the Foundation Soil Report required the design engineer to include the note in Drawing S3, or that the builder was required to found the pad footings a minimum of 100mm onto rock.
5. I prefer the evidence of Mr Brown to Mr Chelvadurai's evidence for the following reasons. First, the Foundation Soil Report recommended that pad footings should be founded at least 100 mm into the underlying natural clay and that minimum founding depths should not be reduced to less than 750mm.[17] It did not recommend that pad footings be founded into rock.
6. Second, the Civil & Soil footing check found the pad footings to be founded at 800mm into what it described as stiff clay. The Foundation Soil Report noted the subsurface structure to be very stiff clay at 700mm. I accept Mr Brown's evidence that stiff clay is similar to extremely weathered rock.
7. Third, the special footing recommendations in the Foundation Soil Report, requiring the pad footings to be continuously deepened to a minimum depth of 900m only related to footings located near the oak tree. In fact, within an 8m radius of the oak tree.[18] The special footing recommendations were required to take into account additional surface movement due to the action of the oak tree.[19] Mr Chelvadurai conceded that the applicant's property was not located within that area.
8. Fourth, the Foundation Soil Report stated that no additional footing requirements were considered necessary as a result of the proximity of the other trees to the site.[20] Consequently, I find that no special footing requirements were needed for the footings on the applicant's property.
9. Fifth, drawing 108445-S2 (footing plan for unit 3 which is not the applicant's property) included notes that dealt with footings adjacent to trees and specifically referred under the heading "founding details", to the Foundation Soil Report for recommended pad footing depths.
10. Drawing WD04-12, being the proposed site/set out plan drafted by the architect, Archestral Designs Pty Ltd, shows the oak tree located between proposed units 2 and 3. Engineering drawing 108445 - S1 rev. A (footing plans for units 1 and 2) shows the radius line of the oak tree in proximity to unit 2. The notes on Engineering drawing 108445 - S2 (footing plans for unit 3), state that the footing system has been designed on the existing vegetation conditions known to the engineer at the time of the design. It notes the site classification to be M. It notes the founding details to be those set out in the Foundation Soil Report.
11. On the evidence I find that the special footing recommendations in the Foundation Soil Report related to footings in close proximity to the oak tree. I find that it is probable that the note which appeared in all of the footing drawings to found the footings a minimum of 100mm onto rock related to unit 3 and that the note had been inadvertently copied onto Drawing S3 but was not relevant to the applicant's footings. I find that there was no basis for Drawing S3 to have required the minimum depth of the pad footings to be 100mm onto rock.
12. If I am wrong in finding that the builder was not required to follow the note in Drawing S3, I am not satisfied that it would be reasonable to reconstruct the foundation system in the way Mr Chelvadurai has suggested because it would achieve no practical benefit.
13. Mr Chelvadurai conceded in cross-examination that the footings as constructed, complied with AS 2870. Further, he admitted that he did not see any cracks in the applicant's property at the time of his inspection. He said he would have expected to see cracks if the footings were non-compliant. He said that cracks may be due to water seepage onto the stumps. Mr Chelvadurai did not explain how any water seepage, which formed part of the applicant's claim in item 1, was relevant to this issue. I am not satisfied as to this item.

1. The applicant claims that the strip footings have not been founded at the certified designed and permit approved depths or onto rock. She claims damages of $74,141 to underpin the strip footings.
2. The builder denies liability. It says the constructed strip footings comply with the engineering drawings. It says there is no evidence of any actual or potential loss or damage, nor evidence of structural movement in the applicant's property.

1. Mr Chelvadurai gave the following evidence. Drawing S3 set out the footing plans for the applicant's property.[21] Drawing S3 required strip footings to be founded a minimum of 100mm onto rock, with the depth to rock being approximately 1000mm. The strip footings did not comply with Drawing S3 because they were founded at a depth of 1150mm and 250mm into clay.
2. Mr Chelvadurai based his opinion on the Civil & Soil footing check.[22] He relied on Civil & Soil describing the subsurface material between the depths of 900mm and 1500mm as: "chalky clay, light grey with tan, becoming increasingly chalky and like siltstone fabric, 1500 end."

1. Mr Brown gave evidence that the strip footing was founded into rock and complied with the engineering drawings, including Drawing S3, and the specifications. He said that the Civil & Soil footing check exposed the strip footing at a depth of 1.15m and the Foundation Soil Report stated that rock was encountered at 1m to 1.3m.

1. I reject Mr Chelvadurai's evidence that the strip footings were founded into clay and not rock. I also place no weight on the description of the subsurface set out in the Civil & Soil footing check. I do so for the following reasons.
2. First, Drawing S3 stated the approximate depth to rock to be 1000mm. The Foundation Soil Report stated that rock was encountered at 1m to 1.3m over the site, and that borehole 3 encountered rock at 1m. Borehole 3 was the borehole taken on the applicant's property.
3. Second, as the Civil & Soil footing check showed the depth of the strip footing to be 1150mm and Drawing S3 and the Foundation Soil Report noted rock to be at encountered at a depth of approximately 1000m, then the strip footing was founded into rock.
4. Third, the Civil & Soil footing check was prepared for the purpose of checking the depth of the builder's footings. It did not form part of the engineering plans and specifications with which the builder was required to comply. The description of the subsurface in the Foundation Soil Report was relevant to the builder. Civil & Soil's description of the subsurface is not relevant.
5. Fourth, Mr Chelvadurai's evidence made no sense. On the one hand he gave evidence that the builder had to comply with Drawing S3 requiring the strip footing to be founded 100mm into rock. On the other hand, he did not address, but simply ignored the fact that Drawing S3 noted the approximate depth to rock to be 1000mm.
6. In reaching his conclusion, Mr Chelvadurai simply disregarded the documents which formed part of the building contract and chose to rely on the description of the subsurface in the Civil & Soil footing check. Further, Mr Bolwell, the geotechnical engineer from Civil & Soil was not called to give evidence and be questioned about the terminology he used to describe the subsurface.
7. I therefore find that the strip footing was founded into rock. I also find that it was founded a minimum of 100mm into rock. I find that the strip footings complied with Drawing S3 and the engineering plans and specifications. I am not satisfied that the applicant has made out this claim.
8. The applicant provided very detailed submissions in reply about the structural claims and the reasons why I should accept the evidence of her expert engineer, Mr Chelvadurai, and not the evidence of Mr Brown, the builder's expert engineer.
9. I find that in a number of instances the applicant's reply submissions did not accurately reflect the evidence given at the hearing. In other instances the applicant's reply submissions referred to documents that were not in evidence or raised matters that were not put to Mr Brown in cross-examination.

Total damages to be awarded to the applicant for defects

1. At the hearing the builder agreed that various items were defective and needed to be rectified.[23] In so far as the builder denied liability for the remainder of the applicant's claims, I have found that the following items are defective and need to be rectified:

Contingency, margin, preliminaries and GST (agreed at 45.75%

1. I find that the builder is liable to pay the applicant damages of $2,802.04 for the items of defective building work listed in the table above.

1. During the hearing the applicant reduced her claim for relocation costs. The applicant now claims damages of $49,260 for the costs of relocating to alternative accommodation for 10 weeks during the rectification works. The damages claimed comprise:
   • (a) removalist and storage costs of $14,050;
   • (b) accommodation costs of $30,520; and
   • (c) boarding costs of one dog in kennels and one cat in a cattery of $4,690.

Do the special needs of the applicant's children require the family to relocate?

1. The applicant gave evidence that her adult children had special needs and medical conditions which required her family to relocate to alternative accommodation during the rectification works.[24] In closing submissions the applicant submitted that she was not cross-examined about this issue and her evidence supported her claim.
2. In closing submissions the builder's Counsel submitted that the applicant's submissions were not only inconsistent with her evidence but were inconsistent with the running of the trial. He said that during the hearing the applicant expressly withdrew any reliance on any particular human need to either vacate her townhouse or obtain accommodation of a particular nature. I accept these submissions as they are consistent with my recollection of the way the applicant ran her case.

The applicant's affidavit sworn 30 September 2019

1. On 1 October 2019, the applicant produced an affidavit which she had sworn the previous day.[25] The applicant sought leave to rely on the affidavit to support her claim for relocation costs based on her adult children's special needs and medical conditions.
2. The applicant submitted that she had a panic attack during the hearing, that she was confused and did not understand the agreement she made with the builder. She said she did not agree with the agreement and that it should not stand. The applicant submitted that she was ready to give evidence at the hearing but was not given the opportunity to do so, she was not given a fair hearing and that it was only fair that now, she be allowed to rely on her affidavit.
3. Counsel for the builder opposed the applicant filing and relying on her affidavit. He submitted that the builder had no time to consider the applicant's affidavit and that the content of the affidavit was inconsistent with the applicant's evidence at the hearing or the way in which the applicant had put her case. He reiterated that it had been agreed during the hearing that the applicant would not be cross-examined on any issues relating to her children's health as the applicant did not press these matters.
4. Counsel for the builder submitted that when the hearing resumed, following the adjournment granted to the applicant while giving evidence, each Counsel informed the Tribunal that the parties would proceed on the basis that the applicant would not be cross-examined on her children's special needs or medical conditions, because she did not rely on them in support of any allegations that there was a need to vacate the premises during the rectification works or a need to seek alternative accommodation.
5. Counsel for the builder submitted that this agreement had a substantial impact on how the builder ran its case. He submitted because of the agreement reached, the builder did not adduce any evidence through its director, Mr McEnaney, about the nature of the alternative accommodation and what occurred when Mr McEnaney attended the site to carry out works. He submitted that in the light of the agreement reached by the parties, it would not be reasonable to allow the applicant leave to file her affidavit.
6. Counsel for the builder submitted that at the end of the hearing the Tribunal had evidence from the experts about the time required to rectify the structural and non-structural defects. He submitted that the builder relied on Mr Lees' evidence.

1. I accept Counsel for the builder's submissions. The applicant's submissions do not reflect her evidence given at the hearing nor the agreement made by the parties.
2. During cross-examination, the applicant became upset when she was asked to explain why she needed to relocate her family. I adjourned the hearing to give the applicant a break and an opportunity to compose herself. When the hearing resumed, Counsel addressed me on the agreement reached by the parties, as submitted by the builder's Counsel. The hearing continued and the applicant was not cross-examined on her adult children's special needs and medical conditions.
3. The Tribunal recognises that giving evidence and being cross-examined is stressful and often difficult for the parties. At the hearing the applicant was represented by Counsel. The applicant was given every opportunity to explain her evidence and to be cross-examined. Contrary to the applicant's submissions, the applicant was not prevented from giving evidence about her adult's children's conditions. She chose not to do so. I accept Counsel for the builder's submissions that the builder ran its defence on the basis of this agreement.
4. The Tribunal must have regard to sections 97 and 98 of the Victorian Civil and Administrative Tribunal Act 1998, (VCAT Act). The applicant now seeks to rely on new evidence to support her claim and to no longer be bound by the agreement she made during hearing. I find that it would be unfair to the builder to allow the applicant to rely on the content of her affidavit.
5. I must dismiss the applicant's application for leave to file and rely on her affidavit sworn on 30 September 2019. The applicant's evidence is set out in her witness statement.[26] I am not satisfied that the applicant has made out her claim for relocation costs based on her adult children's needs.

Does the nature of the rectification works require the family to relocate?

1. Mr McNees and Mr Lees agreed a period of 10 weeks to rectify all of the defective works. That is, both structural and non-structural defective works. Mr McNees estimated it would take 3 to 4 weeks to rectify all of the minor internal defects, which he considered to be limited but widespread.[27] In cross-examination Mr McNees conceded that the internal work may only take 1 week to complete, but that it depended on the availability of trades.
2. Mr Lees gave evidence that 1 week was required for rectification of all the internal items and 1 to 2 weeks was required for rectification of all the external items. Mr Lees considered that the nature of the rectification works did not require the applicant to move out and relocate her family. He considered the internal work to be minimal and to involve minor caulking.

1. At the start of the hearing the applicant claimed that over 50 items of building work were defective. During the hearing the applicant withdrew some of her claims, including two claims relating to structural defects. The builder conceded that more than 20 items were defective, and I have found an additional five items to be defective. I have otherwise dismissed the applicant's claims, including her claims arising from alleged structural defects.
2. Having heard the experts' evidence about the nature of the rectification works and the time required to rectify all of the defects, I prefer the evidence of Mr Lees to Mr McNees. I accept Mr Lees' evidence that much of the rectification work is minor. In so far as Mr McNees' said that the minor internal defects required tradesmen to work through the floor where clearance in the subfloor was deficient, I prefer Mr Lees' evidence that the internal building work which I have found to be defective will not require tradesmen to work through the floor.
3. Having reviewed the evidence of the experts, I am not satisfied that the minor rectification works and the installation of the damp proof course, are of such magnitude to require the applicant to relocate her family. I am not satisfied as to this item.

1. In closing submissions, the applicant sought general damages in the range of $10,000. She claimed damages for the financial loss and physical inconvenience caused by the builder not following the plans, the heating system not working and for her purchase of a split heating and cooling system.
2. Counsel for the builder, submitted that the applicant was not entitled to make this claim which did not form part of the applicant's pleaded case. He submitted that the fact that the applicant gave evidence at the hearing that she purchased a split system did not entitle her to now claim the cost of that system. He submitted that it would be unfair if the applicant were allowed to amend her claim after the hearing had ended.

1. The applicant was represented by Counsel at the hearing. The applicant's Counsel was briefed by solicitors engaged by the applicant. The applicant did not seek to introduce this claim at the hearing. I have dismissed the applicant's claim for damages alleged to have arisen from the installation of the return air vent and the heating system.
2. Having regard to the Tribunal's obligations under sections 97 and 98 of the VCAT Act, I find that it would not be fair to the builder to introduce a claim for general damages of $10,000 when the hearing has ended some months ago. Nor do I consider that there is evidence to support this claim. The applicant's application for general damages is dismissed.

1. The applicant issued a summons for Mr Wise to attend the hearing. The summons did not reach Mr Wise within a reasonable time to allow him to rearrange his work commitments before attending the hearing. Nevertheless, Mr Wise appeared at the hearing as summoned. Mr Wise gave evidence that he tried to explain to the applicant's solicitors that he had been served late. His evidence was that they did not listen to his explanation or make any endeavour to assist him.
2. Having heard Mr Wise's evidence about his difficulties in rearranging his work commitments because of the conduct of the applicant's solicitors, I ordered that the applicant pay Mr Wise $400 for attending the hearing and losing half a day's pre-booked work.
3. In closing submissions, the applicant submitted that the builder should pay any compensation ordered to be paid to Mr Wise. The applicant submitted that Mr Wise was summoned because of Mr McEnaney's "untruthful" evidence and that he changed his evidence after hearing Mr Wise's evidence. I do not accept the applicant's submission. The reason why I have ordered the applicant pay Mr Wise is because of the conduct of the applicant's solicitors.
4. I made the order having heard Mr Wise's evidence and subsequent submissions made by Counsel for the applicant. I am not satisfied that there is any basis for setting aside the order that I made during the hearing.
5. The applicant must pay fees and allowances of $400 to Mr Wise for the loss of half a day's work in attending the hearing as compelled by witness summons to do so.

1. I will order that the builder must pay the applicant damages of $21,672.64 for defective building work. I will also order that the applicant must pay Mr Wise his costs of $400 for attending the hearing as required by the applicant's summons. I will reserve costs.

[1] Bell Property and Investment Services: prepurchase building inspection report dated 21 June 2016 [TB 976 to 991].

[2] New Home Inspections report dated 27 August 2016 [TB 620 - 631]

[3] [2012] VCAT 1766 at [12]

[6] Fernandez v E & M Farag Pty Ltd [2009] VCAT 2618

[9] Photo no. 13 in Mr Brown's report dated 12 March 2019 reissued on 29 March 2019 [TB 433].

[10] Drawing 108445-S3 ( footing plans for unit 4) was drafted by Geoffrey L Bird & Associates Pty Ltd, Consulting Structural and Civil Engineers.

[11] B2 sets out Mr Bolwell's site sketch of the pad footings and Table2 sets out the subsurface profile.

[12] Mr Chelvadurai's supplementary report dated 29 November 2018.

[14] As stated in borehole log sheet 3 in the Foundation Soil Report.

[15] Foundation Soil Report at [6.3: paragraphs 3 and 4].

[16] Contrary to the applicant's closing submissions where she incorrectly submitted that Mr Brown stated this movement would be over 5 to 8 years.

[17] Foundation Soil Report at [6.1].

[18] Foundation Soil Report at [6.3].

[19] Foundation Soil Report at [6.3].

[20] Foundation Soil Report at [6.3].

[21] Drawing 108445-S3 (footing plans for unit 4, the applicant' property) was drafted by Geoffrey L Bird & Associates Pty Ltd, Consulting Structural and Civil Engineers.

[22] The Civil & Soil footing check results are set out in the Civil & Soil footing check prepared by Mr Bolwell dated 8 May 2018.

[23] These items are set out in the table in paragraph 32 of my reasons.

[24] Applicant's witness statement dated February 2019 at [39] and [40] [TB 617] and applicant's undated witness statement in reply dated 2019 at [15] [TB 771].

[25] Applicant's affidavit sworn on 30 September 2019.

[27] Excluding item 53 (claim for defective stumps requiring restumping) and item 54 (claim for defective strip footing requiring underpinning).