Micevski v SK Roofing Pty Ltd

The state of the evidence

1. The applicant did not provide his evidence in the form of a written statement or affidavit, despite having been directed to do so. When giving evidence at the hearing, he said that he had signed a contract but hadn't been given a copy. He said that he hadn't been given receipts or warranty documents. He said that consequently, and because lots of the dealings with the respondent were verbal, he now could not recall certain matters.
2. The respondent provided a written statement and gave consistent and cogent evidence at the hearing. Where his evidence conflicts with that of the applicant, I prefer his evidence, because it is consistent with the documents which are produced and not subject to the limitations in terms of recall which afflicted the applicant's evidence.
3. The applicant's expert witness freely admitted that he had not been on the roof of the house. The effect of this concession was that he withdrew many of the conclusions to which he had come and adopted the respondent's expert's findings.

Findings of fact

1. I make the following findings: 1. The applicant was an owner builder. 2. On 23 September 2014 the respondent provided the applicant with a quotation in an amount of $23,980 for a colorbond roof with stainless steel box gutters and overflows. This quotation included parapet cappings, colorbond rainheads and PVC downpipes. It was valid for 60 days and was not accepted by the applicant. 3. On 9 October 2017 the respondent went to the property at the applicant's request. The applicant asked the respondent to provide a quote for the upper roof only as the lower roof was not complete. The respondent says that the applicant asked him to quote for colorbond box gutters and a clip lock roof to save money. The applicant disputes this, but I accept the respondent's version of what happened at this meeting, because there would be no reason for the respondent to quote for a cheaper option unless he had been asked to do so. 4. On 13 October 2017 the respondent provided the applicant with quotation 0189 in an amount of $13,200.00 for colorbond roof and gutters, insulation, flashings between the box gutter and roof and custom folded ridge capping. The quotation was accepted by the applicant through the Xero platform. 5. In early December 2017 the respondent installed the roof. I accept the respondent's evidence that the applicant instructed him not to install rainwater heads and not to install the metal cappings and flashings. 6. The work was completed and on 7 December 2017 the respondent issued tax invoice 0161 in the sum of $13,200.00, which was paid in full by the applicant. 7. In June 2018 the applicant asked the respondent to quote for installation of the lower roof. He asked the respondent to install temporary cappings. The respondent attended to inspect the work required. The applicant instructed him to attend to the work without requiring a written quotation. 8. On 3 July 2018 the respondent issued invoice 0198 in an amount of $8030.00 for colorbond roof and gutters, insulation, flashings between the box gutter and roof, custom folded apron flashings and temporary cappings. The invoice was paid in full by the applicant. 9. On 4 December 2018 the applicant instructed the respondent to install 45mm deep parapet flashings. I accept that the respondent stated that most people use 30mm flashings, but the applicant requested 45 mm flashings. On 14 December the respondent installed the first section of flashings. The applicant indicated that he didn't like it. He met the respondent at Bar Beach to show him a house with the flashing he wanted. The respondent said that he had installed the roof on that house and the flashings were 30mm. The applicant instructed the respondent to change the flashings to 30mm. 10. In late January 2019 the respondent installed the 30mm flashing. On 2 February 2019 he issued Invoice 247 in an amount of $9,130.00. 11. On 2 February 2019 the applicant contacted the respondent to complain of a leak in one of the bedrooms. The respondent attended and carried out some rectification work (which involved completing sealing around outlets which had been incomplete when he did the original work). 12. On 1 March 2019 the respondent sent a text message chasing payment of the invoice and asking about the roof. The applicant responded: "roof is good" and undertook to make payment "on Monday". 13. Further text messages were exchanged. The applicant requested a breakdown of the costs. 14. On 17 March 2019 the applicant reported another leak. The respondent attended and carried out some rectification work. 15. On 12 April 2019 the respondent provided the applicant with a breakdown of the costs. 16. On 13 May 2019 the applicant paid $2400.00 towards the invoice. 17. On 19 August 2019 the parties met at Grill'd the Junction to discuss the outstanding invoice. The applicant allegs that he paid some money in cash at this meeting but I am not satisfied that any cash was paid on that date because: 1. I accept the respondent's evidence that he does not accept cash payments and 2. The payment of any amount in cash is inconsistent with the later text messages between the parties and 3. The applicant has provided no supporting evidence to verify the payment allegedly made. 1. On 22 August 2019 the applicant advised the respondent that the balance of the payment would be made on 23 August 2019. 2. On 22 August 2019 the applicant paid $6000.00 towards the invoice. 3. On 24 August 2019 the respondent sent a text message stating that $670 remained outstanding. The applicant said he would talk to his wife about it. 4. On 31 August 2019 the applicant advised the respondent of a leak. The respondent attended. He says that he found a brick in the outlet. He says that the applicant admitted putting the brick in when the renderers were working on site. At the hearing the applicant denied having done so and denied having told the respondent that he had done so. I accept the respondent's evidence because it is entirely improbable that he would manufacture such evidence, in respect only of one leak.

The overcharging allegation

1. The applicant's expert witness Mr Taylor proceeded on the basis of the incomplete information supplied to him by the applicant and concluded that the agreement between the parties was based upon the quotation dated 17 September 2014. On that basis, he says that the applicant has overpaid the respondent and is entitled to a refund of $8,180.00.
2. Section 48 K (3) of the Home Building Act 1989 ("the Act") provides as follows: (3) The Tribunal does not have jurisdiction in respect of a building claim relating to building goods or services that have been supplied to or for the claimant if the date on which the claim was lodged is more than 3 years after the date on which the supply was made (or, if made in instalments, the date on which the supply was last made).
3. The building goods and services were supplied to the applicant between December 2017 and January 2019. This claim was lodged on 8 April 2022. The Tribunal does not have jurisdiction to hear and determine it.
4. Even if I am wrong about that, I am not satisfied that there is any basis for the overcharging claim. In accordance with the factual findings above, I am not satisfied that the agreement between the parties was based on the 2014 quotation. That quotation was stated to be valid for 60 days. There was no reason for the applicant to accept the quotation at that time, as he was not ready for the roof to be installed. I am satisfied that the work proceeded based upon individual engagements, and there is accordingly no factual basis for the overcharging claim.

The law

1. The Homeowners allege that the work carried out by the Builder breaches the statutory warranties found in s 18B of the Act: 18B WARRANTIES AS TO RESIDENTIAL BUILDING WORK (1) The following warranties by the holder of a contractor licence, or a person required to hold a contractor licence before entering into a contract, are implied in every contract to do residential building work-- (a) a warranty that the work will be done with due care and skill and in accordance with the plans and specifications set out in the contract, (b) a warranty that all materials supplied by the holder or person will be good and suitable for the purpose for which they are used and that, unless otherwise stated in the contract, those materials will be new, (c) a warranty that the work will be done in accordance with, and will comply with, this or any other law, (d) a warranty that the work will be done with due diligence and within the time stipulated in the contract, or if no time is stipulated, within a reasonable time, (e) a warranty that, if the work consists of the construction of a dwelling, the making of alterations or additions to a dwelling or the repairing, renovation, decoration or protective treatment of a dwelling, the work will result, to the extent of the work conducted, in a dwelling that is reasonably fit for occupation as a dwelling, (f) a warranty that the work and any materials used in doing the work will be reasonably fit for the specified purpose or result, if the person for whom the work is done expressly makes known to the holder of the contractor licence or person required to hold a contractor licence, or another person with express or apparent authority to enter into or vary contractual arrangements on behalf of the holder or person, the particular purpose for which the work is required or the result that the owner desires the work to achieve, so as to show that the owner relies on the holder's or person's skill and judgment.
2. The principles which should be applied when dealing with defect claims have been summarised by Senior Member Goldstein in several cases, including in Chouhan v Morrison Homes Pty Ltd [2021] NSWCATCD 155: 21 In Deacon v National Strategic Constructions Pty Ltd; National Strategic Constructions Pty Ltd v Deacon [2017] NSWCATAP 185 an Appeal Panel approved of what I stated in MacFayden and Anor v G Tadrosse [2014] NSWCATCD 194 at [46] in connection of what evidence in my view needs to be provided in order to establish a beach of the implied warranties in s18B(1) of the Act, or in these proceedings, the express warranties in clause 39: 'Evidence that work does not comply with the Building Code of Australia would establish a basis for a finding that sub section 18B(c) of the Act has been breached. Evidence of the details in which work does not comply with the contractual plans and specifications would form the basis for a finding that sub section 18B(a) of the Act has been breached. Evidence of work not being carried out in a proper and workmanlike manner would in my view involve identification of the work in question, a statement of how the expert would expect it to be carried out in in a proper and workmanlike manner and then identification of the factors which establish that the way in which the work has been carried out falls short of it being carried out in a proper and workmanlike manner. Evidence of this nature, if accepted, would form the basis for a finding that sub section 18B(a) of the Act has been breached' 22 In Hislop v Jakanda Pty Limited [2019] NSWCATCD (unreported) I referred to the above decisions and stated in connection with an allegation that work does not comply with plans or specifications: 'I would enlarge upon the extract above by stating 'Identification of, first the relevant contractual plans and specifications and secondly, evidence of the details in which the work, as built, does not comply with those contractual plans and specifications would form the basis for a finding that sub section 18B(1)(a) of the Act has been breached'.
3. Proceedings must be commenced within the warranty period, which is 6 years from the date of completion of the work for major defects, and 2 years for defects other than major defects. As the work was completed in December 2017, June - July 2018 and January 2019, the warranty period had ended for any defects which were not major defects when the claim was filed on 8 April 2022.

The evidence

1. The applicant's expert Mr Taylor explained at the hearing that he had not provided any reasoning in his report because he thought he would have an opportunity to do so in his report in reply. This is to misunderstand that as the applicant's expert, his report should be reasoned for it to meet the minimum requirements for expert evidence. Furthermore, it became apparent that Mr Taylor had not properly inspected the roof. His finding were really assumptions based on little more than the fact that there was a leak.
2. At the hearing, before Mr Taylor began to give his evidence, I asked him whether there were any matters in his report which he wished to correct. He stated that, as he had not been on the roof and Mr Kyle had been, he wished to adopt Mr Kyle's findings and scope of work in full. He differed only in the cost of that work. In this regard he said that Mr Kyle had adopted a rate from Rawlinson's 2017. He proposed costings based on Cordells being $72.27 per hour for a roofer rather than $55.00 per hour.
3. The consequence of the concession made by Mr Taylor is that I am left with Mr Kyle's findings and conclusions, and I adopt them in full.
4. There is one issue where Mr Taylor indicated that he did not agree with Mr Kyle, and that was in respect of the issue of filler strips. Mr Kyle opined that filler strips are not mandated by the Code and were not included in the contract. Mr Taylor said that there is evidence of wind driven water penetration, which would have been ameliorated by the installation of filler strips. The roof when constructed must be fit for purpose, and the purpose of a roof is to prevent water ingress.
5. However, neither expert provides a scope of work which includes the provision of filler strips, and I have no evidence as to whether they can be retrofitted. I accordingly am unable to make a work order which addresses this issue.
6. I accept that there has been a period of sustained increases in costs and would allow the rate proposed by Mr Taylor if I was making a money order. They are as follows: 1. Item 9.1 $339.08 2. Item 9.2 $589.08 3. Item 9.3 $339.08 4. Item 9.4 $339.08 5. Item 9.5 and 9.6 $1506.32 6. Item 9.7 and 9,.8 $1506.32 7. Item 9.9 $1506.32 8. Item 9.10 $339.08 9. Item 9.11 $339.08

Work order or money order

1. The applicant did not press for a money order. He said only that he wants the leaks in his roof fixed. The Tribunal is required by s 48MA of the HBA to consider the making of a work order as the preferred outcome in proceedings of this kind. There is nothing put to me that would make a work order inappropriate. I will accordingly order the respondent to attend to the defects found by his expert, adopting his expert's scope of work.

Costs

1. I will provide for any application for costs to be made within 14 days of the date of these orders, and for submissions in reply to be filed within a further 14 days.

Orders

1. SK Roofing Pty Ltd is, on or before 30 November 2022, to undertake, in a proper and workmanlike manner, the scope of work set out in the report of Quest Associates dated 8 September 2022 at paragraphs 9.1.5, 9.2.5, 9.4.5, 9.5.5, 9.7.5, 9.9.5, 9.10.5 and 9.11.5.
2. The balance of the application is dismissed.
3. If either party seeks a cost order, that party is to give to the Tribunal and the other party the application for costs and submissions in support by 25 October 2022.
4. The other party is to give to the Tribunal and the other party any submissions in reply by 15 November 2022.
5. The submissions must address whether a hearing of the cost applications can be dispensed with under s 50 of the Civil and Administrative Tribunal Act 2013.

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

Amendments 07 September 2023 - Formatting amendments. 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: 07 September 2023