These proceedings raise interesting issues regarding the weight of evidence necessary to establish defects and the quantification of damage. Perhaps these issues have arisen because the location of the dispute is in rural New South Wales, and building experts in these areas with relevant experience in giving evidence in the Tribunal are difficult to engage.
So far as quantification of damage is concerned, in Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54 at [31], Mason CJ and Dawson at page 83 stated:
'The settled rule, both here and in England, is that mere difficulty in estimating damages does not relieve a court from the responsibility of estimating them as best it can. Indeed, in Jones v Schiffmann Menzies J. went so far as to say that the 'assessment of damages … does sometimes, of necessity involve what is guess work rather than estimation." Where precise evidence is not available the court must do the best it can. And uncertainty as to profits to be derived from a business by reason of contingencies is not a reason for a court refusing to assess damages.'
In Tuck v White [2016] NSWCATAP 132 an Appeal Panel referred to these authorities as follows at [43] - [44]:
'In Baak v Concrete Services Group Pty Ltd [2016] NSWCATAP 42 at [17] and following the Appeal Panel set out various cases which cast upon a tribunal or court the obligation to assess the loss or damage arising by reason of a breach of contract. Of the authorities referred to, it is sufficient to set out the decision of Dixon and McTiernan JJ (with whom Latham CJ and Williams J agree) in Fink v Fink [1946] HCA 54; (1946) 74 CLR 127. At page 143 their Honours said:
'Where there has been an actual loss of some sort, the Common Law does not permit difficulties of estimating the loss in money to defeat the only remedy it provided for breach of contract, an award of damages.'
The Appeal Panel in Baak then referred to the decision of Mason CJ and Dawson J in Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54'
In JLW (Vic) Pty Ltd v Tsiloglou and Others [1994] Vic Rp 16; [1994] 1 VR 237 Brooking J stated :
'A plaintiff cannot recover substantial as opposed to nominal damages unless he proves both the fact and the amount of damage: The Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64; 104 ALR 1, at CLR at 80, per Mason CJ and Dawson J, at CLR at 99, per Brennan J., at CLR at 118, per Deane J. and at CLR at 137-8, per Toohey J. If he proves the fact of the loss but does not call the necessary evidence as to its amount he cannot be awarded substantial damages (McGregor on Damages, 14th ed., at 190 and 222): he must put the tribunal in the position of being able to quantify in money the damage he has suffered: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158, at 159, per Dixon CJ So juries in personal injuries cases are often directed that the plaintiff must prove to their satisfaction what he has suffered and will suffer and what is fair and reasonable compensation in respect of that. It is often said that the amount of the damage must be proved with certainty, but this only means as much "certainty" as is reasonable in the circumstances: Ratcliffe v Evans [1892] 2 QB 524, at 532-3. Where precise evidence is obtainable, the court naturally expects to have it; where it is not, the court must do the best it can'
LeLievre v Dave King Building Services Pty Ltd [2020] NSWCATCD 11 | Case summary | Zoe
Later in his judgement Brooking J stated:
'There is no rigid dividing line between cases in which guesswork is permissible in assessing damages and cases in which it is not. The borderline between guesswork and rational assessment is itself indistinct, as is the line between evidence that is "precise" (the Permanite Case dictum) and evidence that is not. In Enzed Holdings Ltd v Wynthea Pty Ltd [1984] FCA 373; (1984) 57 ALR 167, at 182-3, (to which Tadgell J. has drawn my attention) the Full Federal Court thought the case to be one in which precise evidence of the loss was not obtainable, so that if the trial judge found that the plaintiffs had suffered some loss he must do his best to quantify the loss even if "a degree of speculation and guesswork" was involved.'
In this application the applicant claims the sum of $93,713.89 (in his scott schedule) in connection with defective residential building work allegedly carried out by the first respondent at a rural property in Louth in rural New South Wales.
There is no dispute that the applicant's claim is a building claim for the purposes of s48A of the Home Building Act 1989 (the 'Act') and that the Tribunal possesses the necessary jurisdiction to determine the applicant's claim and to make the necessary orders under s48O of the Act.
In these Reasons I will refer to the applicant as the 'owner' and to the first respondent as the 'builder'.
The hearing of these proceedings took place on 17 September 2019 at Dubbo. The parties were directed to file and serve final written submissions which they have done, with extensions of time as requested by them.
The builder's solicitors have provided me with a transcript of the proceedings.
The evidence in the proceedings was:
1. Exhibit A owner's Court Book;
2. Exhibit 1, Mr King's Affidavit dated 24 May 2019; and
3. Exhibit 2, Email from Gabie Le Lievre to David King dated 14 March 2017;
[2]
The contract
The contract was stated to be an oral contract between the parties to carry out renovations and extensions to the owner's property in accordance with a scope of works prepared by the builder. The contract was entered into on 26 or 27 March 2016.
I find that the contract was for the carrying out of residential building works and that the warranties set out in s18B(1) of the Act were implied into the contract between the parties. The relevant warranty is:
'that the work will be done with due care and skill and in accordance with the plans and specifications set out in the contract,'
There is a deal of discussion in the submissions about the scope of work that the builder was to carry out. However that may be considered to be a sterile debate given that the builder does not contend that work the owner alleges is defective, was not work that it carried out.
In addition I find that the arrangements between the parties were so vague and imprecise that I am reluctant to find that there were express terms of any significance agreed between them, so far as their dispute is concerned.
I do find that the party contracting with the owner was Dave King Building Services Pty Ltd. I further find that Mr King himself had no intention of contracting with the owner on a personal basis.
[3]
The owner's claim
The owner alleges that the builder quit the site and the work to be done under the contract on 1 June 2017. I find that there is no real dispute regarding this fact.
The owner also alleges that the builder breached the contract by carrying out defective work. The amount claimed for defective work is $96,663.89. Alternatively, an amount of $93,665.35 has been claimed for the cost of building by the builder and materials provided to the builder. In the further alternative, the owner claims the sum of $109,665.35 being the money he paid to the builder. Refer [58] of the owner's submissions.
The owner makes no claim that the builder repudiated or renounced the contract and there is no claim made for completion of incomplete work.
[4]
The experts
At the hearing for the reasons provided, I ruled that I would not allow the late evidence of the builder's expert to be tendered. Therefore the only expert evidence in the proceedings was the owner's. To the extent the builder refers to Mr Rendell's evidence in the submissions, I find that to be impermissible. Mr Rendell's report is not in evidence.
The owner relied on the expert evidence of Mr Troy. There was no challenge to Mr Troy's status as an expert or his ability to give opinion evidence in the Tribunal.
Mr Troy is a licensed builder of 15 years' experience who was engaged by the owner to assess the standard of building work undertaken by the builder. He swore two (2) affidavits, one dated 14 September 2018 and the other dated 20 November 2018. He also prepared a scott schedule.
Mr Troy is a licensed builder. I note that his licence commenced in February 2017. He states that he has 15 years' experience, although he does not state what that experience is. Mr Troy does not refer to the Tribunal's Expert Code of Conduct. Mr Troy's methodology was to take photographs of what he considered to be defective work and to comment on what the photographs show. I will treat Mr Troy's hand written comments on his photographs as being part of his expert report.
Mr Troy's 20 November 2018 affidavit, annexure A, contains his assessment of the standard of the work undertaken by the builder.
In his 20 November 2018 affidavit, Mr Troy stated that he carried out remedial work to the owners' residence and also carried out new building work for the owner. In doing so he has provided a basis for a finding to be made that he has a conflict of interest in giving his evidence of defective workmanship.
Mr Troy was the only expert to give evidence in the proceedings. Despite the fact that his report does not refer to the Expert Code of Conduct and is not in the form that one usually sees in the Tribunal, I accept Mr Troy as an appropriately qualified expert by reason of his experience as a builder and therefore able to give opinion evidence in the Tribunal.
However the weight to be given to his evidence is an issue that I must determine. I will do that on an ongoing basis as I consider each item of defective work referred to in the scott schedule prepared by Mr Troy.
I have also had regard to Mr Troy's evidence that he was of the view that all of the builder's work should be demolished because it was almost all defective and that it was 'Substandard'. There was no evidence to contradict Mr Troy's opinion. Nor did Mr Troy resile from that view when being cross examined. In re-examination Mr Troy stated that the builder's work was 'below average' T.79 and at T80 'just wasn't built properly'.
I accept Mr Troy's un-contradicted evidence that the builder's work was not to what he considered to be a proper standard. I infer that he means that the builder's work was not carried out with due care and skill.
I find despite Mr Troy working for the owner and performing additional work, that was not a factor that influenced his evidence in these proceedings. I find that Mr Troy was an honest witness and I accept his evidence as stated in his 20 November 2018 affidavit, regarding the circumstances which led him to carry out the additional work for the owner.
[5]
Section 18F of the Act
The builder's evidence in a number of instances is that he proceeded with certain items of the works after giving verbal advice to the owner, or to the owner's wife that what they had asked him to do, or told him to do was not prudent.
Even if his evidence of those instances were accepted, I find that the conversations to which the builder refers would not relieve him of the obligation to comply with s18B of the Act because of the operation of s18F of the Act.
S18F(1)(a) of the Act states:
'In proceedings for a breach of a statutory warranty, it is a defence for the defendant to prove that the deficiencies of which the plaintiff complains arise from:
(a) instructions given by the person for whom the work was contracted to be done contrary to the advice of the defendant or person who did the work, being advice given in writing before the work was done,' (emphasis added)
I find that the builder's evidence establishes that he did not give written advice to the owners advising against following or proceeding with an owner's instruction. As a result s18F(1)(a) of the Act is not enlivened in the builder's favour.
[6]
Standard of proof
The owner is obliged to prove his case on the balance of probabilities. The relevant principles in relation to discharging the burden of proof in civil cases were summarised by the New South Wales Court of Appeal in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 at [55] as follows:
'(1) A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the
relevant time did) exist;
(2) where on the whole of the evidence such a feeling of actual persuasion is
induced, so that the fact-finder finds that the probabilities of the fact's
existence are greater than the possibilities of its non-existence, the burden of
proof on the balance of probabilities may be satisfied;
(3) where circumstantial evidence is relied upon, it is not in general necessary
that all reasonable hypotheses consistent with the non-existence of a fact, or
inconsistent with its existence, be excluded before the fact can be found; and
(4) a rational choice between competing hypotheses, informed by a sense of
actual persuasion in favour of the choice made, will support a finding, on the
balance of probabilities, as to the existence of the fact in issue.'
[7]
The owner's scott schedule
As stated above Mr Troy prepared a scott schedule for the owner. I will deal with each item in the scott schedule in the order stated in that document. The scott schedule has attached to it the owner's affidavit, an affidavit of Mr Kitchen, good quality colour photographs and invoices. The total amount claimed in the scott schedule is $93,713.89.
I will proceed on the basis that this is the amount the owner claims for defective work.
Mr Kitchen is a builder who carries on business as MJK Building Solutions. He prepared a ten (10) point report for the owner. The owner stated that he does not rely on Mr Kitchen's evidence. I will not take it into account.
[8]
Item 2 floor frame - amount claimed $17,498.05
The scott schedule provides no comments on this item which is normally expected. Four (4) invoices are referred to which I have added to calculate the amount claimed.
I have had regard to Mr Troy's 14 September 2018 affidavit. This affidavit annexes a number of black and white photographs that Mr Troy took which he regards as evidence of defective workmanship. There is a hand written index of photographs with a brief description of what each photograph is said by Mr Troy to show. Photograph 0512 upon which the owner apparently relies in connection with this item of the scott schedule states:
'Floor height different between hall and bedroom'
Pages 43 and 44 of the photographs attached to Mr Troy's 14 September 2018 affidavit are also relied upon. Photograph 43 shows flooring material having been screwed to what appear to be battens or flooring material.
Photograph 44 states the floor frame of the new extension is 15 mill lower than the existing level of original house and the flooring materials are not satisfactory because the timber sheet flooring was glued to the fibro-cement sheeting.
I have also had regard to Mr Troy's 20 November 2018 affidavit. This affidavit annexes a typed assessment of the builder's work with a typed commentary of the photographs attached to his 14 September 2018 affidavit.
In connection with photograph 512, Mr Troy gives an expanded description of the description of the defect at [40] together with an explanation of the remedial work.
I have accepted Mr Troy's evidence that the builder's work was defective, I also accept Mr Troy's evidence in connection with this item of the scott schedule as contained in his two affidavits.
I find that the work the subject of this item of the scott schedule was defective and I infer, in breach of the warranty set out in s18B(1)(a) of the Act.
The amount claimed for this item of the Scott schedule is a combination of monies claimed for work carried out by Mr Troy in his invoice 203 together with invoices of $3,300.00 from CW and EM Jeffrey, $3,663.00 from Burke Steel & Hire, invoice 8010 and $1,200.00 for the cost of the owner to travel to Bourke in his truck to collect steel. That is 300 km at $4.00 per kilometre.
The CW and EM Jeffrey invoice is for a total of $8,327.00 for the tiling of the bathroom, hallway and laundry. Mr Troy has allocated $3,300.00 of this invoice to this item of the scott schedule which relates to tiling
The invoice from Bourke Steel & Hire is for the fabrication and supply of steel.
There is no evidence from the owner that he did travel to Bourke to collect steel or of transport costs that ordinarily apply in transporting steel from Bourke to the owner's property. In the absence of such evidence I reject the owner's claim for $1,200.00.
The builder has criticized the way in which the Mr Troy has assessed the amount claimed for this item of the scott schedule.
While it is correct to observe that the quantification of this amount is not as precise as it could be, I am satisfied that the owner paid out money to have this and other items of work rectified. In accordance with the authorities that I have referred to at [2] - [5], I accept that I must estimate the damages that the owner has sustained.
I am comfortable with the amount assessed by Mr Troy in connection with the CW and EM Jeffrey invoice and his own invoice 203. I am satisfied that the invoices relied upon represent work carried out in relation to this item of the scott schedule.
As a result I find for the owner in the amount claimed for this item of the scott schedule, $16,298.05.
[9]
Item 3, Wall frames - Amount Claimed $3,432.09
The defects are said to be that the wall heights were too short, that there were insufficient noggins in the wall frames to take external wall cladding and new wall frames were not straightened before installing internal lining.
The owner relies on photographs 0504, 0505, 0507, 0508, 0510, 0511, 0516, 0531, 0535, 0537, 0541, 0543, and 0546 of Mr Troy's 14 September 2018 affidavit. Colour versions of these photographs are attached to the scott schedule, including photographs relevant to the item that wall frames were not straightened before installing internal lining.
As stated, given that I have accepted Mr Troy's evidence that the builder's work was defective, I accept Mr Troy's evidence in connection with this item of the scott schedule. I find that the work the subject of this item of the scott schedule was defective and I infer in breach of the warranty set out in s18B(1)(a) of the Act.
In addition in Mr Troy's 20 November 2018 affidavit provides an explanation of what is shown on photographs 0504, 0505, 0507, 0508, 0510, 0511,0516, and other photographs mentioned in [48]. This evidence reinforces his overall evidence that the builder's work was defective.
The amount claimed of $3,432.09 is included in his invoice 183 of 21 October 2017.
As I have stated while it is correct to observe that the quantification of this amount is not as precise as it could be, I am satisfied from the owner's evidence that he paid out money to have this item of work rectified. In accordance with the authorities that I have referred to at [2] - [5] I accept that I must estimate the damages that the owner has sustained. I am comfortable with the amount assessed by Mr Troy and that he has done his best to estimate the amount this work cost.
As a result I find for the owner in the amount claimed for this item of the scott schedule, $3,432.09.
[10]
Item 4 Roof Frame - Amount claimed $12,417.72
This defect is stated to be made up of three (3) parts. First, the Roof frame did not marry in with the existing roof pitches, the rafter spacings were too far apart and the rafters were cut too short. Secondly, the rafter and the hips were not tied down securely. They were too short and added onto in an insufficient manner. Thirdly, roof battens were not fixed securely, there was no support in some cases.
A large number of photographs are relied upon as illustrating the builder's defective work under this heading. In addition colour photographs are attached to the scott schedule which are said to illustrate the defects referred to under this item.
The amount claimed of $12,417.72 is made up of amounts allocated by Mr Troy to this item from invoices 183 and 184 dated 21 and 28 October 2017, respectively. In addition an amount $460.00 is claimed as for loss of internet and a reconnection cost. I find that there is no evidence about how the amount $460.00 is related to this item of the scott schedule.
As stated, given that I have accepted Mr Troy's evidence that the builder's work was defective. I also accept Mr Troy's evidence in connection with this item of the scott schedule. I find that the work referred to in item 4 was in breach of s18B(1)(a) of the Act.
For the reasons that I have provided, I accept Mr Troy's allocation of the sums of $3,432.09 and $8,525.63 from invoices 183 and 184 in connection with this item of the scott schedule.
Because there is no evidence that the amount of $460.00 relates to this item, I reject that amount as being recoverable. I will find for the owner in the sum of $11,957.72 in connection with this item of the scott schedule.
[11]
Item 5 - Roofing - Amount claimed $13,647.56
This defect is stated to be made up of three (3) items. First, ceiling frame spacings were too far apart, not joined in the correct manner and there was insufficient lap on the joins. Secondly, roofing material was cut too short, it was patched by tucking short sheets under the end, and roofing material was not screwed off properly. Roofing sheeting was laid out of square to the building. Facia was not installed properly. Thirdly, guttering was left in the direct sunlight and a plastic protective material was baked onto the metal.
A large number of photographs that were annexed to Mr Troy's 14 September 2018 affidavit are referred to in item 3 of the scott schedule as illustrating this defect. In addition in the attachment to his 20 November 2018 affidavit Mr Troy provides explanations of what his photographs depict. There are also colour photographs relevant to this item attached to the scott schedule.
Having regard to Mr Troy's evidence in the annexure to his 20 November 2018 which address the photographs referred to in this item of the scott schedule, I accept that his evidence is that the work the subject of this item of the scott schedule was not carried out in accordance with s18(1)(a) of the Act.
For the reasons provided I also accept Mr Troy's allocation of the sums of $3,432.09 and $10,215.47 from invoices 183 and 186 in connection with this item of the scott schedule.
I will find for the owner in the sum of $13,647.56 in connection with items 5.1 and 5.2 of the scott schedule.
A further amount of $2,585.00 is claimed in item 5.3 of the scott schedule for cleaning guttering left in the direct sunlight causing protective material to be baked onto the metal. An email of 20 March 2018 is relied upon. The email relied on attached to the scott schedule states:
'In addition to extra labour provided to King, we provided labour to our current builders as stated below to help in rectification works
Michael Jackson 21/12 / 17 47 hrs @ $55/hr $2585.00.
The issue with the windows was that you need to toughen glass in the wet areas King failed to instruct us to order windows to comply with the code'
I find that the evidence relied upon as stated above does not establish that the amount of $2,585.00 was expended to clean guttering left in the direct sunlight. In any event the owner alleges that the builder quit the site and the work to be done under the contract on 1 June 2017. The costs referred to above were said to be incurred in December 2017, some 6 months after the builder left site. The inference to be made from these facts is that the owners left guttering material exposed and unprotected for some 6 months. I find that the owners failed to protect the guttering and that it was that fact and not anything to do with the builder that caused the protective material to be baked onto the gutters.
The claim for $2,585.00 is rejected.
[12]
Item 6 wall cladding - Amount claimed $8,602.59
The Scott schedule describes the defective work as being that the wall sheeting was cut too short leaving the building exposed to weather and vermin. In addition it states that screws were inadequately spaced. Photographs 0504, 0510, 0511, 0559 and 0560 as attached to Mr Troy's 14 September 2018 affidavit are referred to as illustrating examples of the defective work.
In the attachment to his 20 November 2018 affidavit, Mr Troy provides explanations of what his photographs depict and what work he did to rectify what he states was the defective work. There are also colour photographs relevant to this item attached to the scott schedule
I accept Mr Troy's evidence that the work the subject of this item was not carried with due care and skill and was therefore in breach of s18B(1)(a) of the Act.
For the reasons that I have provided, I also accept Mr Troy's allocation of the sums of $3,432.12 and $5,170.47 from invoices 183 and 193 in connection with this item of the scott schedule.
I will find for the owner in the sum of $8,602.59 in connection with item 6.1 of the scott schedule.
The defect referred to in this item of the Scott schedule is that the majority of internal linings were not plastered correctly and were installed over un-straightened frames. Item 7 of the Scott schedule refers to photographs on pages 39, 40, 44 and 45 of Mr Troy's affidavit dated 14 September 2018.
In the attachment to his 20 November 2018 affidavit, Mr Troy provides explanations of what his photographs depict and the remedial work that he carried out. Mr Troy refers to out of plumb frame work by the builder and instances where joints in wall sheets had not been set properly.
I accept Mr Troy's evidence that the work the subject of this item was not carried with due care and skill and was therefore in breach of s18B(1)(a) of the Act.
For the reasons that I have provided, I also accept Mr Troy's allocation of the sum of $7,652.20 from his invoice 205 in connection with this item of the scott schedule.
An amount of $1,495.00 invoiced by Spargo's plastering is claimed in connection with this item. I accept that amount as being connected to this item of the scott schedule as it refers to resetting and sanding wall and ceiling joints to 4 bedrooms.
I will find for the owner in the sum of $9,147.20 in connection with item 7 of the scott schedule.
[14]
Item 8 Wet areas - Amount claimed - $12,798.16
This defect is described as waterproofing and screed bed on the floor being inadequate. It is stated that the levels on the floor bed were incorrect and the screen bed was drumming and flaky and walls were not straight.
Mr Troy refers to photographs 556, 557 and 558 as referred to in his affidavit dated 14 September 2018. In the attachment to his 20 November 2018 affidavit, Mr Troy provides explanations of what his photographs depict and the remedial work that he carried out.
I accept Mr Troy's evidence which leads me to infer that the work the subject of this item of the scott schedule was not carried out with due care and skill and was therefore in breach of s18B(1)(a) of the Act.
For the reasons that I have provided, I also accept Mr Troy's allocation of the sums of $11,481.56 and $1,316.60 from his invoices 202 and 207 in connection with this item of the scott schedule.
I will find for the owner in the sum of $12,798.16 in connection with item 8 of the scott schedule.
[15]
Item 9 Fit Offs - Amount claimed $1,890.00
This defect is this is described as a cavity sliding door unit having insufficient head above opening. Architraves not finished, some doors binding on jambs, and some skirting was missing. This item of the Scott schedule refers to pages 41 and 42 attached to Mr Troy's 14 September 2018 affidavit and to the rectification work that he carried out. In the attachment to his 20 November 2018 affidavit Mr Troy provides explanations of what his photographes depict.
I am satisfied that Mr Troy's evidence establishes that the work the subject of this item of the scott schedule was not carried out with due care and skill and was therefore in breach of s18B(1)(a) of the Act.
For the reasons that I have provided, I also accept Mr Troy's allocation of the sums of $1,890.00 from his invoice 205 in connection with this item of the scott schedule.
I will find for the owner in the sum of $1,890.00 in connection with item 9 of the scott schedule.
[16]
Item 10 Painting - Amount claimed $8,096.75
This defect is described as being that due to the majority of internal linings being replaced and plasterwork being re-done, the entire extension had to be re-painted. It is stated that there was insufficient paint coverage on the first attempt by the builder. This item of the scott schedule refers to pages 39 and 40 of Mr Troy's affidavit dated 14 September 2018 and the rectification work that he carried out.
In the attachment to his 20 November 2018 affidavit Mr Troy provides an explanation of what his photographs depict. The substance of this item is that because remedial work had been carried out it was necessary to repaint the finished work.
Because I have accepted that the builder breached s18B(1)(a) of the Act in connection with internal linings and plasterwork (item 7 of the scott schedule) I accept that it was necessary to carry out the painting claimed in this item of the scott schedule.
The owner relies on invoices in the sums of $5,256.99 and $2,838.75 which are attached to the scott schedule. The invoices are for paint and a painter, Mr Asimus to repaint the extension. I accept these invoices as the cost of the re-painting as claimed under this item of the scott schedule.
I will find for the owner in the sum of $8,096.75 as claimed for item 10 of the scott schedule.
[17]
Item 11 Electrical - Amount claimed $1,900.25
This defect is described as being that the builder did some electrical work and left exposed wires. As a result it is stated that remedial work had to be done to ensure that the electrical work carried out by the builder was safe. This item of the Scott schedule refers to photographs 504, 521, 522, 523, 536, 538 and 548 of Mr Troy's affidavit dated 14 September 2018. In addition, the rectification work is described as being the electricians checked electrical work to ensure compliance and safety.
In the attachment to his 20 November 2018 affidavit Mr Troy provides an explanation of what his photographs depict. The essence of this item of the scott schedule is that the builder carried out electrical work which had to be checked to ensure that it was compliant and safe.
The owners rely on two invoices to substantiate the amount of $1,900.25 which has been claimed. First, an invoice from Macquarie Electric Pty Ltd in the sum of $780.45 is relied upon. This invoice is made up of two parts. The first is:
'Rough in new bathroom. Run cabling under house to be connected on fit out.'
The second part is:
'Remove old cabling from existing renovations and disconnect live wires'
For the first item, namely roughing in the new bathroom five hours at $125 per hour was charged for a total of $625.00.
For the second item, 1 hour at $84.50 was charged.
The second invoice is from Grant Randall electrical and is in the sum of $1,119.80. There is no reference to or explanation of the work done
I find based on Mr Troy's evidence and the Macquarie Electric Pty Ltd invoice, that it was necessary to remove old cabling from existing renovations and disconnect live wires such work, I infer having been carried out by the builder.
I find that because this work was necessary that the implication is that the electrical work carried out by the builder was not done with due care and skill.
I will find for the owners in the amount of $84.50 which the evidence discloses was charged for the necessary work.
[18]
Item 12 Plumbing - Amount claimed $4,283.52
This defect is described being that the waterproofing and screed bed on the floor were inadequate. The levels on the floor bed were not correct. The screed bed was a 'drummy' and 'flaky' and floor levels did not allow water to flow into the waste hole. The scott schedule refers to photographs 556, 557 and 558 attached to Mr Troy's 14 September 2018 affidavit. The rectification method is stated to be that the screed bed had to be jackhammered up, the water for the bathroom and the laundry had to be roughed in and the sewer underneath the building was re-run and changed and a new screen bed was installed.
Photographs 556, 557 and 558 as attached to the scott schedule are of the screed bed on the floor. The comments on these photographs which I have stated I would accept as part of Mr Troy's evidence are, in relation to 556, 'incorrect application waterproofing, screed bed drummy, floor finish levels wrong'. In connection with the photo 557 the commentary is '3 different beds rapid set in doorway.'
The owner relies on an invoice from Zac Rennick Plumbing Pty Ltd in the sum of $4,283.52. The invoice states:
'Rough in water for bathroom and laundry. Run and change sewer underneath the building. Change sewer and vent on school building and assist Andy with mixing the sand cement for the floor.'
I find that this invoice goes beyond Mr Troy's evidence that the defect is that the waterproofing and the screed bed on the floor were inadequate, and the levels on the floor bed were not correct. The screed bed was said to be 'drummy' and 'flaky' and floor levels did not allow water to flow into the waste hole.
The amount invoiced by Zac Rennick Plumbing Pty Ltd related to different work. I find that there has been no cogent explanation of how the work invoiced related to the defective work referred to by Mr Troy.
The invoice does refer to 'assist Andy with mixing the sand cement for the floor' although there is no separate charge for that work.
I accept that some of the work done by Zac Rennick Plumbing Pty Ltd related to the defect that has been identified in this item of the scott schedule. However the bulk of the invoice related to other work. Doing the best that I can I estimate that $150.00 of the $4,283.52 invoiced by Zac Rennick Plumbing Pty Ltd related to the screed bed.
I am satisfied that Mr Troy's evidence establishes that the work the subject of this item of the scott schedule was not carried out with due care and skill and was therefore in breach of s18B(1)(a) of the Act.
I find for the owner in the sum of $150.00 in relation to this item.
[19]
Findings
I have found for the owner in the following items of the scott schedule.
Item Description Amount found
2 Floor frame $16,298.05
3 Wall frames $3,432.09
4 Roof Frame $11,957.72
5 Roofing $13,647.56
6 Wall cladding $8,602.59
7 Internal Linings $9,147.20
8 Wet areas $12,798.16
9 Fit Offs $1,890.00
10 Painting $8,096.75
11 Electrical $84.50
12 Plumbing $150.00
Total $86,104.62
[20]
In finding for the owner I have had regard to each tem of the scott schedule and Mr Troy's evidence in connection with each item. I have also had general regard to Mr Troy's unchallenged evidence that the builder's work was as stated at [26] all defective, substandard, below average and just wasn't built properly. Given that Mr Troy was the only expert to give evidence in these proceedings I must accept his evidence, even if it was not given in the form that is usual in Tribunal proceedings. In that regard s38(4) of the Civil and Administrative Tribunal Act 2013 is apposite. It states:
'The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.'
I find that Mr Troy's unchallenged evidence persuades me that the probabilities of the builder not having carried out the work referred to in the scott schedule with due care and skill are greater than the possibility that he did.
I find that the owner has not made out a case against Mr King. I dismiss the owner's case against him.
Having found for the owner on his primary claim I find that his alternative claims are not available. The owner has obtained an award of damages for his defective building work claim.
The owner decided to have the building work rectified by other contractors. I find that such a course was permissible due to the fact that the builder left the site because of disagreements and a failed commercial relationship with the owner. I find that the facts indicated that the builder had no interest in returning to the site which was remote and difficult to attend for any prolonged period. In those circumstances I find that the preferred option in s48MA of the Act has no application.
So far as the owner's clam for interest is concerned I have no jurisdiction under the Act or the Civil and Administrative Tribunal Act to award interest.
[21]
Costs
In the event that a party wishes to bring a costs application, the costs application must be lodged in the Tribunal and served on 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.
The costs respondent will have 14 days after the date they or it receives the application to lodge in the Tribunal and serve on the costs applicant their or its submissions, if any, in response to the cost applicant's costs application, such submissions either attaching or referring to the documents relied upon.
The cost applicant will have 14 days after the date they or it receives the cost respondent's submissions to lodge in the Tribunal and serve on the costs respondent their or its submissions, if any, in reply, such submissions either attaching or referring to the documents relied upon.
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.
Subject to the parties' submissions, the Tribunal will determine any costs application on the basis of the papers lodged in the Tribunal.
[22]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 17 March 2022