The Respondent did not admit that there was any defective building work carried out by the company or, if there had been, then the Applicant had waived a right to object to the defective work.

The Respondent said where there were problems with quality of work, other trades were at fault and/or that there was no agreement that the Respondent should clean the surplus render off surfaces including the roof and neighbour's roof, driveway and paths and dividing fences.

The Applicant filed an affidavit and gave oral evidence at hearing. He produced an expert report, quotations for rectification, report from his mortgagee, colour photographs and a short video. The video was shown at the hearing.

His evidence was that the Respondent carried out a small internal job on his home. The Respondent expressed interest in carrying out the job of rendering the external surfaces of the house.

The agreement was to prepare the surfaces, including corners and joints at $45 per hour and to render at a cost of $40 per square metre.

The Applicant said that when he asked the Respondent for licence details, he was given a non-committal answer but believed the Respondent's representations that he had a licence to carry out rendering work.

His version of the discussion is contained in his affidavit [Exhibit A1] paragraph 12.

The agreement was signed after the commencement of the works. The agreement was in the form of a SC2 contract [revised October 1993]. The agreement was amended by a single page handwritten set of "special conditions" which contained a provision that the Respondent would be paid on completion.

The document relevantly contained the following paragraphs:

"14. The Sub-Contractor shall keep the works clean and tidy......and on completion.....and leave the Works clean and tidy. If he shall fail to do so then the Builder may carry out whatever may be required and the cost thereof may be deducted from any monies due...to the Sub-Contractor."

"16. The subcontractor will......make good all defects that may appear in the works......."

"23. The Sub-Contractor must satisfy himself that it is practicable to complete the works in a workmanlike manner and warrants a satisfactory result."

As the Applicant had raised funds to carry out renovations, he required inspection by his mortgagee to approve a draw-down. An inspection resulted in advice from the mortgagee's inspection that the works were not acceptable to the mortgagee. [Exhibit A1 annexure 12].

The mortgagee declined to pay until the defects noted in the report of 22.6.2001 were remedied. The Applicant refused to pay the Respondent until the defects were rectified.

The Expert Report of G Todarello [Exhibit A1 annexure 16-24] upon which the Applicant relies is brief and of some assistance. Its form is in the nature of a pre-printed form with check boxes and allows limited room for explanation. It does however confirm defective work and corroborate the Applicant's complaints. It reports cracking of the render at eight sites on the exterior of the home, mainly on the western and southern faces.

At pages 7 and 8 of the Report, the consultant found damage to the roof caused by rendering droppings and cracking to the render. The affectation to the neighbour's roof was noted. The render was noted as damaged, uneven and with variable textures. Discolouration of the render was noted. He says at 6.3 page 8, "Poor workmanship is the only explanation for this appearance".

He further notes "All corners without exception are not straight and resemble waves."

'It is clearly evident that workmanship and finish to the texture coated walls is poor quality and that all texture coating to walls will need to be renewed. Sloppy workmanship has left colourbond fencing and the neighbour's terra-cotta roof tiles littered with texture coat droppings. This will need to be thoroughly cleaned and possibly renewed."

What the Report did not do was to comment on the proper standards and how the work deviated from the standard, the likely causes of defect, the methods of rectification and the likely cost.

The Applicant produced several quotations for the rectification work. The quotes did not disclose whether the roof could be repaired short of replacement.

There was scant detail of the rectification work to be carried out on the render but it transpired that the current render was to be over-coated with another layer of render. There were no calculations or plans produced to verify the area rendered which was said by the Applicant to be half that area claimed by the Respondent renderer. Equally, the Respondent did not produce plans or calculations to rebut the Applicant's contention.

The essential defects of which the Applicant complains are:

• Substandard rendering in relation to taping joints, preparation of edges and corners and irregularities in colour and finish.

• Damage to metal roof caused by surplus render on roof and damage caused to surface by attempts to remove.

• Costs associated in cleaning waste render from roof paths and colour-bond fence and neighbour's roof.

In the initiating Application, the Applicant sought damages in the sum of $57,300, as follows:

Repair render $38,500

Replace roof $17,000

Cleaning costs.........$ 1,800

As the Applicant had not paid the Respondent any monies, the Applicant modified his claim at hearing.

From the sum sought the Applicant deducted the contract price (adjusted for over-calculation of area rendered by deduction of the sum of $15,252.00) which had not been paid.

On the Applicant's re-calculation, the Respondent ought pay him $26,626 in compensation.

The Respondent did not produce any expert report, or independent witness statements. Its director gave very limited oral evidence and filed an affidavit 10 July 2001. [Exhibit R1]. The company also filed an Answer but no answer to the amended claim.

The Directions of the Tribunal of 12 December 2001 provided the Respondent have access for its expert to inspect the defective work and confer with the Applicant's expert. The Respondent did not appoint an expert and no report was forth coming.

On the day of hearing, the Respondent was not represented by a lawyer but had the assistance of an interpreter.

The Respondent persistently denied any responsibility for any defective work and asserted that the Applicant and his expert were "liars". Nevertheless, the Answer contained an admission on page one that the area of render was not correctly measured by the Respondent.

Mr Mobayed did admit that he had never held a licence nor had his company over the 15 years he had worked in the industry. He admitted that there was no insurance for the work. In his affidavit he stated that he disclosed to the Applicant that he did not have a licence. He was told, he alleges, that he was "not to worry".

His affidavit states that he agreed to repair work which was defective. He says however that the Applicant was unable to locate the allegedly defective work. [Exhibit R1 page 2 para 12]. This is contrary to the Applicant's version of events.

He was invited to cross-examine the Applicant and give his own version of events. After some limited cross-examination of the Applicant, the Respondent's director declined to put anything further.

The Applicant appeared a truthful witness. His evidence was corroborated by an expert's report, quotations, and photographs.

On the other hand, the Respondent was combative and unco-operative throughout the proceedings. Apart from the denial about the holding of a licence in the Respondent's affidavit, the Respondent avoided, both in the affidavit and at hearing, addressing the serious complaints about defective work and damage caused by the Respondent's workers.

There were shortcomings with the evidence mentioned above, not the least is the absence of a clear description of the condition of the roof and whether it is capable of repair, short of total replacement. These contributed to some uncertainty in respect to the quantification of damages.

Nevertheless, the Tribunal is obliged to work with the evidence available and assess damages.

As the evidence of the parties is contradictory, the Tribunal is faced with accepting one or the other version of the dispute. The Tribunal is satisfied that the Applicant has discharged his obligation to prove a case.

The Respondent's argument that any defects were caused by others is rejected. There was no evidence that the Respondent alerted the Applicant to any difficulties in the framework which may have contributed to the cracking. Neither was there evidence given to rebut the Applicant's evidence that the taping of sheeting was undertaken to recommended widths. The evidence was conclusive of wide spread defective work in a number of regards.

Equally, the distribution of waste render over roofing, fencing and pathways was widespread, affecting not only the Applicant's roof but also the neighbour's roof.

The Respondent admitted that the company had no licence, no insurance and did not use a standard form of contract in conformity with the Act and industry practice.

The Respondent has known of the case against the company for a considerable time, the claim having been filed in June of 2001. The Respondent has had the benefit of legal advice throughout the case, albeit not on the day of hearing. No effort was made to obtain an expert nor is there evidence of efforts to rectify what is clearly defective work.

The Tribunal is satisfied that the defects as claimed were caused by the poor workmanship of the Respondent in contravention of the terms of document which was agreed to constitute the contract and the statutory warranties in section 18B of the Home Building Act.

The Applicant is entitled to recoup the reasonable cost of rectification of the defective works from the Respondent.

The Applicant amended the claim in a document filed on 27 December 2001 seeking an order that the Respondent pay the Applicant $57,300, being the cost of rectification.

At hearing, the Applicant conceded that the Respondent had not been paid.

Leave was given for the Applicant to file a schedule which reduced the sum sought to $26,626.30. Implicit in the claim is that the Applicant should not have to pay the Respondent's account of $49,210.30.

The Applicant reduced the calculation of damages to a schedule [Exhibit A3].

This schedule estimated the cost of rectification at $57,300 from which was deducted the Applicant's assessment of the real cost of the original contract work [reduced due to the admitted overcharging as a result of an overestimate of the area of render]. This resulted in the estimated actual cost of the original contract as $30,673.70. Such sum deducted from the costs of rectification result in a net award to the Applicant of $26,626.30.

The Tribunal is not persuaded that this is a satisfactory or fair assessment. The evidence of the state of disrepair of the roof was unclear. The cost of replacement is likely accurate. It is not clear that the roof however was beyond repair but only that it was "damaged by oxidisation in several areas".

In the absence of more conclusive evidence, the Tribunal is not prepared to allow the cost of total replacement. [Refer Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613].

In turn, the evidence as to the actual area rendered is inconclusive. The Applicant did not produce plans or calculations to prove the actual area.

As the Respondent is not licensed, the Tribunal cannot make an order that the Respondent rectify the defective work.

Taking into account the issues relating to quantification of damage, the Tribunal believes that the reasonable outcome that the Applicant's award be quantified at the sum of the contract as claimed by the Respondent, namely $49,210.70.

The Tribunal pursuant to the powers in section 89C of the Home Building Act 1989, therefore finds that the Applicant is relieved from payment of the Respondent's account.

1. The Applicant J Lintmeijer is relieved from payment to Zam Zam Cement Rendering Pty Ltd of the sum of $49210.70 in respect to a contract dated 15 May 2001.

Ian McDonell

Member