1. The Owner now brings this proceeding seeking a declaration that she need pay no more money to the Respondent beyond what she has already paid and that the balance of the contract sum may be used by her to rectify and complete the work herself. Implicit in this is that the work is defective and incomplete and that, to the extent that it is incomplete, that is due to a breach by the Respondent of his contract to do the work. The matter came before me for a small claim hearing and after hearing from the parties I adjourned it to a site inspection on a later date.

1. The Owner has had the work inspected by an Architect from Archicentre, Mr Busby. He did not give evidence which is unfortunate because of the imprecise nature of much of what he says in the report. His report is also necessarily based upon what the Owner and her son have told him. Indeed, he says in his report that no documents were available at the time of inspection to determine the agreed scope of works. Why he as not given a copy of the quotation was not explained by the owner or her son. The matters he raises are as follows:
   • (a) There is no evidence that any steps have been taken to prevent excessive floor movement. This is a curious allegation. Mr Busby said there was no adequate access to the sub floor area. He said that on a "remote visual inspection" he could see no evidence of packing of the floor joists. However there is no evidence that any such packing was required and it is not within the scope of works set out in the quotation. The Owner had earlier had the house inspected by another architect, Mr Engel, who said that the stumps were concrete and in good condition, although he said that the kitchen floor tiles and backing sheets should be replaced. In a paragraph containing some general advice (paragraph 5) Mr Engel suggests that some stumps in the house "may also have settled and can be packed to level the floor" but he does not say that the stumps below the kitchen floor require packing or that packing of the floor joists is required, nor does Mr Busby, who appears to have assumed or been told that this was within the scope of works. The Owner and her son said that they asked the Respondent about the floor. He looked under the floor and said that he thought it looked fine. This evidence is not disputed and it accords with Mr Engel's inspection. There is no evidence of cracking in the tiles that have been laid on the floor. I find no defect. Mr Busby also says that he saw timber off cuts in the sub-floor but there is no evidence that they were left there by the Respondent. In view of the scope of works, it is unlikely that they were.

(b) An internal door hung to the outside. I accept the Respondent's evidence that this is a temporary door and would have been replaced with the door manufactured for the purpose had the Owner not prematurely determined the contract. Fitting a temporary door is normal building practice and is not a defect.

(c) Plumbing

Mr Busby said that the plumbing installation "does not appear to have been undertaken by a qualified plumber" but does not say why he draws this conclusion. The sworn evidence of the Respondent is that it was undertaken by a qualified plumber and in the absence of contrary evidence I must accept that over what appears to be a mere suspicion. The particular defects Mr Busby refers to in regard to plumbing are as follows:

(i) The waste connection to the external trap is "improperly" installed. The Owner asked the Respondent to replace an old pipe which ran under the floor from below the sink to the gulley trap outside and his plumber did so, running it into the gulley trap along the course taken by the old pipe. This required a concrete cutting machine and several visits by a plumber. Mr Busby does not say what it is about the installation as a whole that is "improper" and there is no expert evidence of any defect in anything the Respondent or his plumber have done. Mr Kravets complains that no compliance certificate has been produced by the plumber but I am dealing with the Owner's claim, not any claim by the Respondent for payment for this work. Mr Kravets also complains about a blockage caused by a T-shirt that had to be cleared but there is no evidence as to how that occurred. The onus is upon the Owner to prove that the work is defective and there is insufficient evidence that it is.

(ii) The waste line to the underside of the basin is leaking. The Respondent asserts that it was not leaking at the time of installation. When I tried the waste it was quite loose. It seems unlikely that a plumber would leave a sink in that state or that the Owner would not have complained at the time if he had. There is no evidence that anything more than tightening the waste is now required but I am not satisfied that it was leaking at the time the contract was determined.

(iii) Penetrations in the base of the cupboard are not capped against vermin. That was demonstrated on site but the work was stopped by the Owner before completion.

(iv) Water hammer noted to the sink mixer. This was not shown to me on site but since the scope of works in regard to the water supply was confined to fitting the tap I cannot conclude that any water hammer is due to defective work by the Respondent. It is more likely to be related to the old plumbing in the house.

(d) The interior plasterworks are of an unacceptable standard. The only plaster work I was shown that fitted that description was that above the cupboards including the cornice work to which Mr Busby refers separately. According to the evidence this was done at the request of the Owner's son. The cabinet maker who did it told him that he was not a plasterer. In the end he did it as a favour to please the son, warning him he was no plasterer. The work was not within the scope of works and has not been charged for. The quotation includes the words: "Plasterer not including". The other plasterwork in regard to the wardrobes which was charged for as an extra was done by a plasterer and is of a professional standard. No complaint is made about that.

(e) Telephone connection has been removed and not replaced. That is so but the work is incomplete.

(f) Cupboards are of different heights. This relates to a height difference in the baks of cupboards on different sides of the kitchen. Mr Busby suggests that the difference might be due to poor measurement. Much was made of this but what is supplied accords with the drawings. That is the way it was designed and so it is what the Respondent was required to install. The problem seems to be that the Owner and her son say that they think that it looks odd but that is a matter of opinion. The "misalignment" of the doors referred to by Mr Busby is a matter of adjustment of hinges and the sides of the carcasses have been left incomplete as he says but in both cases, the work is incomplete.

(g) The kick board in front of the dishwasher is not fixed. This is acknowledged and it is suggested by the Respondent that it is impracticable to fix it if access to the dishwasher is not to be impeded. I think that an answer to this dilemma might have been found had the work been able to proceed. It is in any case incomplete work.

(h) Cut down architrave. This is another instance of incomplete work. Mr Busby suggests that the bench top might have been wrongly measured but the dimensions were defended by the Respondent on site and I am not satisfied that there was any mistake in this regard. The poor appearance is due to the fact that the job is not finished.

(i) Preparation and painting. These were excluded in the quotation and so their absence is not incomplete work.

(j) Built in robe. The criticism here is that the strip flooring was splashed with paint but the Respondent did no painting. Also, the screws were not capped and the hanging rail is not fixed but the work is incomplete.

(k) Mr Busby say that the substrate used beneath the floor tiles "appears to be uncompressed fibrous cement sheet less than 6 mm thickness" which he says "is not of adequate mechanical strength to prevent flexing and movement of tiling under normal pedestrian traffic. He does not say how thick the substrate was or even whether he measured it. The floor is on concrete stumps and is very hard strip flooring 19mm thick that has been down for many years. I found it very rigid to walk on and there is no sign of any cracking of tiles or movement in the kitchen floor. I am not satisfied that a defect in this regard is demonstrated.

1. In regard to the amateur plaster work, the Owner's son, who represented her, acknowledged that it was not part of the scope of works but argued that there was a collateral contract that it be done. There is no evidence to establish any such contract nor is there any evidence of the assumption by the Respondent of a tortious duty of care in carrying out what was really an unpaid favour for the Owner at her son's request. To support a claim for economic loss with respect to work done outside the contract it would have been necessary to find that such a duty of care was assumed by the Respondent and it was not. There was a specific disclaimer of any expertise.

1. As to the work done within the scope of the contract I find that it is in many instances incomplete but I also find that the Respondent has not been permitted o complete it.
2. The cabinet work itself appears to be of a good professional standard. I think the difficulty between the parties in this case has arisen from an unwarranted assumption on the part of the Owner and her son that the work would not be finished satisfactorily, based upon their uninformed and unskilled observation of an incomplete job.
3. The Owner has not discharged the onus of proof that she bears that the work was defective and so the claim fails. It also follows also that she has wrongfully excluded the Respondent from the site and she remains bound by the contract that she has entered into. She had no entitlement to determine it as she has purported to do.
4. I am unable to make any order with respect to the enforcement of the contract by the Respondent because there is no cross claim. However the findings made in this proceeding bind the parties and any enforcement proceedings subsequently brought by the Respondent may rely upon those findings.