Gordon v We Build Australia Pty Ltd [2025] NSWCATCD 93;

1. The builder does not press for an order which gives effect to s48MA. It states that it does not oppose a money order. I will therefore make a money order to reflect the extent to which the owners of 220A and B were successful.

1. The owner of 220A was successful in the following claims:

(a) Second floor balcony capping;

(b) Bedroom 1 structural steel base plate fixed to interior of room; and

(c) Roof sheets damaged during construction or remedial works.

1. The owner of 220B was successful in the following claims:

(a) Second floor balcony capping;

(b) Rust stain to rear floor tiles;

(c) Bedroom 1 structural steel base plate fixed to interior of room; and

(d) Roof sheets damaged during construction or remedial works.

1. The owners' solicitors obtained a quotation from easyTrades which they then used to complete a scott schedule which is in evidence in exhibits A and B. The owners' expert Mr Irvine prepared cost estimates, which are explained at Section 9 of his report. He stated that the rates provided in Appendixs A1, A2 and B1 and B2 to his report were based on the rates provided in Rawlinson's Construction Cost Guide 2024. Appendix B2 of his report was a schedule of rectification for 220A. It was a an itemised priced make up of the rectification he considered to be appropriate. Appendix B1 of his report was a schedule of rectification for 220B. I prefer Mr Irvine's detailed estimate of the cost of rectification to the scott schedules prepared by the owners based on the easyTrades quotation which is not broken down into component prices.
2. In Appendix B1 and Appendix B2 Mr Irvine allowed for a contingency of 10%, for preliminaries of 15% and a contractor's margin of 20%. Counsel for the builder submitted that given the limited nature of the work that the builder was responsible for rectifying there was no need for a contingency or preliminaries. I find that a contingency should be allowed to accommodate material increases and increases in labour costs. I agree that an allowance for preliminaries is not warranted given the small number of items that the owners have been successful on. Dr Cunniffe described what preliminaries address in his report. I find that based on that description of preliminaries they have no application in the outcome that I have found. Otherwise, I will accept Mr Irvine's assessment of the rectification costs for 220A and B where there has been a finding in favour of the owners.
3. The estimated cost of rectification for 220A was as follows. The amount estimated by Mr Irvine for second floor balcony capping was a total of $940.00 made up as follows:

(1) Labour $498 00;

(2) Sundries, $60.00;

(3) Paint affected walls. $332.00; and

(4) Sundries (Paint) $50.

1. The builder concedes a sub total of $631.00 for the item structural steel base plate fixed to the interior of the room.
2. The amount estimated by Mr Irvine for Roof sheets damaged during construction or remedial works was a total of $1,534.00 made up as follows:

(1) Remove ridge cap along to 220B and 4 damaged roof sheets east pitch, $249.00;

(2) Replace 4 X damaged roof sheets east pitch $249.00;

(3) Reinstall existing ridge, $83.00;

(4) Touch up marks, remove sealant $83.00; and

(5) Sundries $870.00.

1. The total amount found in favour of the owner of 220A is $3,002.00.

1. The estimated cost of rectification for 220B was as follows.
2. The amount estimated by Mr Irvine for second floor balcony capping was a total of $558.00 made up as follows:

(1) Remove capping $166.00

(2) Fit capping $166.00;

(3) Paint affected walls. $166.00; and

(4) Sundries $60.00

1. Mr Irvine did not provide an estimate of the rectification cost for the rust stain to rear floor tiles. The scott schedule in exhibit A which was prepared by the owner of 220B based on the Easytrades quotation does not break the miscellaneous items down with the result that the rectification cost of this item is not specifically priced. Mr Cunniffe stated:

"Allow for the affected area to be professionally cleaned and made good."

1. Given that this is a minor item and the owners have not provided an estimate, I will allow $180.00 for the cleaning as estimated by Mr Cunniffe at page 103 of exhibit 1.
2. The amount estimated by Mr Irvine for Bedroom 1 structural steel base plate fixed to interior of room was a total of $631.00 made up as follows:

(1) Carpenter $249.00;

(2) Welder $83.00;

(3) Plasterboard repair $83.00;

(4) Painter $166.00; and

(5) Sundries $50.00.

1. The amount estimated by Mr Irvine for roof sheets damaged during construction was a total of $1,534.00 made up as follows:

(1) Remove Ridge cap on 220B $249.00;

(2) Replace 4 damaged roof sheets east pitch $249.00;

(3) Reinstall existing ridge $83.00;

(4) Touch up marks, remove sealant $83.00; and

(5) Sundries $870.00.

1. The total amount found in favour of the owner of 220B is $2,903.00.

1. The experts allow allowances for these items in their respective assessment of the cost of rectifying defects. While they agree on a contingency of 10% they do not agree on profit. Mr Irvine allows for a margin of 20%. Dr Cunniffe allows for a 25% margin. I will allow the higher margin. Then GST must be added.

1. The amount found in favour of the owner of 220A was $3,002.00 x 10% contingency = $3,302.20 x 25% profit = $4,127.50 + GST = $4,540.25.
2. The amount found in favour of the owner of 220B was $2,903.00 x 10% contingency = $3,193.30 x 25% profit = $3,991.62 + GST = $4,390.78.

1. In the event that a party is minded to make an application for costs, such application must be lodged in the Tribunal and served on/given to the costs respondent within 14 days of the date of the orders in these proceedings either attaching or referring to the documents relied upon in support of the application.
2. The costs respondent will have 14 days after the date it receives the application to lodge in the Tribunal and serve on/give to the costs applicant its submissions, if any, in response to the costs application, such submissions either attaching or referring to the documents relied upon.
3. The parties must state in their submissions whether or not they consent to the costs application being determined on the basis of the parties written submissions and attached documents, if any, without the need for a hearing.
4. Subject to the parties' submissions, the Tribunal will determine any costs application made on the basis of the submissions and papers filed in the Tribunal.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.