In these proceedings the applicant seeks the sum of $37,000.00 in connection with what she alleges is work carried out by the respondent in breach of the warranties implied by s 18B of the Home Building Act 1989 (the 'Act').
The proceedings were heard on 6 March 2015 at Wollongong. The parties were unrepresented.
In these reasons for decision I will refer to the applicant as the owner and to the respondents as the builder.
[2]
Jurisdiction of the Tribunal
Section 48K (1) of the Home Building Act 1989 ( the 'Act') provides that:
'(1) The Tribunal has jurisdiction to hear and determine any building claim brought before it in accordance with this Part in which the amount claimed does not exceed $500,000 (or any other higher or lower figure prescribed by the regulations).'
A 'building claim' is defined in s 48A of the Act as follows:
'building claim means a claim for:
(a) the payment of a specified sum of money, or
(b) the supply of specified services, or
(c) relief from payment of a specified sum of money, or
(d) the delivery, return or replacement of specified goods or goods of a specified description, or
(e) a combination of two or more of the remedies referred to in paragraphs (a)-(d),
that arises from a supply of building goods or services whether under a contract or not, or that arises under a contract that is collateral to a contract for the supply of building goods or services, but does not include a claim that the regulations declare not to be a building claim.'
Further in connection with the meaning of the expression 'building claim', s 48A(2) of the Act states that:
'a building claim includes the following:
(a) an appeal against a decision of an insurer under a contract of insurance required to be entered into under this Act,
(b) a claim for compensation for loss arising from a breach of a statutory warranty implied under Part 2C.'
Building goods or services are defined in s 48A of the Act to mean:
'goods or services supplied for or in connection with the carrying out of residential building work or specialist work, being goods or services:
(a) supplied by the person who contracts to do, or otherwise does, that work, or
(b) supplied in any circumstances prescribed by the regulations to the person who contracts to do that work.'
Finally, residential building work is defined by the Act in s 3 to mean:
'any work involved in, or involved in co-ordinating or supervising any work involved in:
(a) the construction of a dwelling, or
(b) the making of alterations or additions to a dwelling, or
(c) the repairing, renovation, decoration or protective treatment of a dwelling.'
The evidence before the Tribunal is that the owner and builder verbally agreed in or about September 2012 that the builder would carry out work in the rear of the owner's residence situate at 3 Stirling Place Albion Park (the 'residence'), such work being to upgrade a daybed near a swimming pool and to demolish and remove existing concrete surfaces and pavers at the rear of the residence and carry out new concreting work at the rear of the residence under a pergola and down one side of the residence.
I find that the builder provided building goods and services to the owner in connection with carrying out residential building services. It follows that the owner's application is a building claim for the purposes of the Act and that I have the jurisdiction to determine it under the Act.
The owner paid the builder $28,400.00 to carry out the work. The parties agree that part of the payment of $28,400.00 by the owner was by way of her paying the timber supplier for the timber used by the builder in the work that he carried out to the daybed.
The contract between the parties was not reduced to writing. The builder was not licensed to carry out building work under the Act.
The evidence is that the work was completed in December 2012.
The owner has made various complaints regarding the work carried out to the daybed. This led her to institute these proceedings and to engage a building consultant, Mr Conner, to prepare a report for the purposes of the proceedings. The builder has also engaged an expert, Mr Lozina, to respond to the owner's expert.
Unfortunately, the experts have been unable to reach any real agreement regarding the owner's claims.
A Scott Scheduleedule has been prepared by Mr Conner.
I accept Mr Connor as an expert duly qualified and experienced to give opinion evidence in the Tribunal. There was no challenge to Mr Lozina's status as an expert and I accept him as able to give opinion evidence in the Tribunal.
Mr Connor's report is exhibit B in the proceedings and Mr Lozina's report is Ex 2.
I stated to the parties that in my view s 18B of the Act applies to the work carried out by the builder. Section 18B of the Act provided, at the time the work was carried out, that:
'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 performed in a proper and workmanlike manner 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.'
The owner is required to prove her claim on the balance of probabilities.
The relevant principles in relation to discharging the burden of proof in civil cases were recently summarised by McDougall J in 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.
Before proceeding further with a consideration of the technical evidence, I will make a finding that the Office of Fair Trading Guide to Standards and Tolerances 2007 does not form part of the law of New South Wales. Without anything further, a breach of its provisions will not constitute a breach of s 18B(c) of the Act as referred to above.
The best way to deal with the owner's claim is to address each item in the Scott Scheduleedule prepared by Mr Conner, which Mr Lozina has responded to.
The Scott Schedule starts with the issue of the builder having failed to supply Home Owners Warranty Insurance (HOWI). I will not consider this item any further. The owner makes no claim for compensation for this failure.
[3]
Item 6.1 Construction and completion of the hardened concrete pavement to the dwelling's curtilage and swimming pool area
Mr Conner has raised a number of issues in connection with the concreting work. One of the issues he raises is that any installed termite barrier has been bridged and that no or inadequate termite inspection zones have been provided.
The builder's expert states that the builder is not liable for the matters raised by Mr Connor.
Mr Connor's report in connection with this item of claim consists of a number of photographs with descriptions of what the photograph is said to show. There follows a section of why the claim item is a problem followed by a section titled 'What is the compliance requirement(s)' which contains a number of references to the Building Code of Australia ('BCA'). This method of compiling an expert's report is in my view less than satisfactory. Mr Connor does not connect the photographs he has taken with the problem he identifies and then link those matters to specific provisions of the BCA in order to demonstrate non-compliance with the BCA. Rather, that exercise is left to the reader of the report.
I will deal with each of the items in this section of the Scott Schedule.
[4]
Concrete poorly placed
There is no evidence in the form of the annotated photographs to support this defect item. I find that the owner has not proved her case in connection with this item.
[5]
Concrete is poorly worked on-site
There is no evidence in the form of the annotated photographs to support this defect item. I find that the owner has not proved her case in connection with this item.
[6]
Concrete surface is marked and defective
Photographs 29, 28, 27, 26, 25, 24, 23, 22, 21 and 20 to Mr Connor's report are put forward as evidence of this defect item. They all show some feature of marking or discolouration. In my view Mr Connor's report is to be read to the effect that one or more of the BCA compliance requirements that he refers to is alleged to have been breached. Mr Connor leaves it to the reader to review the BCA compliance requirements and work it out for themselves which is the relevant BCA requirement in connection with this item of claim.
I have reviewed the BCA compliance requirements referred to by Mr Connor with the material referred to in paragraph 5.4, and section E of his report. There is nothing in that material that addresses the quality of concrete.
There is no evidence on behalf of the owner that there has been a breach of any regulatory requirement regarding the surface of the concrete. Mr Connor does not give evidence of whether or not the work as it affected the surface of the concrete was performed in a proper and workmanlike manner.
I find that the owner has not proved her case in connection with this item.
[7]
Concrete Surface is not uniform in colour or texture
Photographs 29, 28, 27, 26, 25, 24, 23, 22, 21 and 20 to Mr Connor's report are presumably also put forward as evidence of this defect item. They all show some feature of marking or discolouration. I have reviewed the BCA compliance requirements referred to by Mr Connor with the material referred to in paragraph 5.4, and section E of his report. There is nothing in that material that addresses the colour and texture of concrete.
There is no evidence on behalf of the owner that there has been a breach of any regulatory requirement regarding the surface of the concrete. Mr Connor does not give evidence of whether or not the work as it affected the surface of the concrete so far as colour or texture is concerned, was performed in a proper and workmanlike manner.
I find that the owner has not proved her case in connection with this item.
[8]
Installed Pavement levels do not fall adequately away from dwelling
Photograph 1 shows an instance where Mr Connor states that the concrete falls towards the dwelling. Photograph 2 shows an instance where Mr Connor states that the concrete falls towards an adjacent dwelling.
Part 3.1.2.3 of the BCA as referred to in paragraph 5.4 of Mr Connor's report refers to surface water drainage.
Mr Lozina states that there is only one area where the water falls toward the dwelling. He states that the new concrete meets an existing path which in itself falls toward the residence. Mr Lozina states that the new concrete in question also falls toward the street 'with a significant amount of fall'.
I find that the owner has established a minor breach of s 18(c) of the Act in that the BCA has been breached by the builder in the instance identified by the experts.
So far as the adjacent dwelling is concerned, Mr Lozina states that the concrete falls toward an adjoining garden bed. I accept that evidence.
I do not accept that this breach of the BCA in itself justifies the total replacement of all concrete placed by the builder.
[9]
Nil or adequate termite 'inspection zones' have been provided
Photographs 5, 6, 7, 8, 9, 11, 12, 13, 14, 15, 16, 17, 18 and 19 all show examples of nil inspection zones identified by Mr Connor. This defect item is coupled with the factor that Mr Connor asserts that a DPC/cavity flashing is not 75mm above the finished pavement level, which pavement level was constituted by the new concrete laid by the builder. So far as DPC/cavity flashing not being 75mm above the finished pavement level is concerned, this has not been identified as an issue in the 'Why it is a problem' section of the report.
The BCA references Mr Connor refers to are clauses 3.1, 3.1.3, 3.1.3.2 (a)(i), and 3.1.3.3 (c)(i).
During the course of the hearing the builder frankly stated that the concrete that has been laid does not comply with the BCA termite management system.
The builder's position so far as it has been stated by Mr Lozina is that to accommodate the need for appropriate falls and drainage it was necessary that the new slab laid by the builder not be compliant with the BCA provisions regarding a need for DPC/cavity flashing to be 75mm above the finished pavement level.
Mr Hawkins has provided a report on behalf of the builder. Mr Hawkins did not attend at the hearing. The owner did not object to his evidence. I accept Mr Hawkins as a suitably experienced and qualified expert. He does not dispute that the inspection zone has been compromised by the installation of the new concrete paths installed by the builder.
Mr Hawkins states that the fact of the compromise of the inspection zone is irrelevant. He states that the inspection zone has already been compromised in the area of the existing driveway, in existing gardens and footpaths and where there is a hot water unit mounted on a pre-existing slab. Mr Hawkins also states that there are alternative methods of conducting inspections, irrespective of whether the 75mm inspection zone exists. He lists inspection techniques.
The warranties set out in s 18B of the Act apply to the work carried out by the builder despite the fact that in other parts of a residence there may be non-compliances with regulatory requirements.
Equally it is of little consequence to a builder's obligation to comply with s 18B(c) of the Act that, as Mr Hawkins suggests in connection with AS 3600.1 clause 3.4, a regulatory requirement is generally not complied with.
Mr Lozina on behalf of the builder draws attention to the performance requirements of the BCA. He suggests that if Performance Requirements are complied with it is of no consequence that 'Deemed to Satisfy Provisions' of the BCA are not complied with. While that may be the case, it is necessary that Alternative Solutions are implemented to satisfy the Performance Requirements. Ordinarily these solutions are identified before building work is commenced, usually at the stage of an application for a Development Application or a Construction Certificate. In this instance there is no evidence of Development Consent being sought.
There is no evidence that when the concreting work was carried out a alternative solution was considered or suggested by the builder to the owner.
The position is that it is agreed by the builder and by his expert Mr Hawkins that an inspection zone as required by the BCA Part 3.1.3.3(c) has been compromised by the 'installation of the new concrete paths'. That in my view constitutes an admission that there has been a breach of the warranty in s 18B(c) of the Act in that the concreting work would be done in accordance with, and would comply with, in this instance the BCA, Part 3.1.3.3.
On the basis of the builder's own admission and that of his expert, I find that the builder will be liable to the owner damages for the breach of the warranty in s 18B (c) of the Act.
The suggestions by the builder's expert that the owner could comply with the Performance Requirements of the BCA by ongoing inspection are relevant in my view only to the extent that a series of inspections might be less expensive than the demolish and replace rectification option preferred by the owner. However Mr Hawkins does not provide a costing of ongoing inspections. On that basis his evidence of an alternative solution to the BCA performance requirements is of no effect.
The builder's experts also suggest that there is no evidence that the owner has carried out ongoing termite inspections of her property. Photograph 5 to Mr Connor's report establishes that the previous Termite Protection System was that there was no 75 mm inspection zone and that regular inspections were recommended every 12 months.
The normal measure of damages will be the amount required to place the owner in the position she would have been in had the work complied with BCA Part 3.1.3.3.
The law relating to the award of damages was generally stated in Hungerfords v Walker 171 C.L.R., 125 at 143 as:
"The Plaintiff is entitled to full compensation for the loss which he sustains in consequence of the defendant's wrong, subject to the rules as to remoteness of damage and to the Plaintiff's duty to mitigate his loss. In principle, he should be awarded the compensation which would restore him to the position he would have been in but for the defendant's breach of contract or negligence."
In connection with building cases, the decision of the High Court of Australia in Bellgrove v Eldridge (1954) 90 CLR 613 establishes that where there are defects caused by a breach of a contractual obligation, the damages to be awarded are the costs of rectification, provided the works to be carried out are both necessary under the contract, and reasonable. Otherwise, damages are to be assessed on the diminution in value of the property in question. In this case damages based on diminution in value do not seem to me to be relevant. Nor is there any evidence of diminution.
In Tabcorp Holdings Pty Limited v Bowen Investments Pty Limited [2009] HCA 8 (12 February 2009) the High Court of Australia discussed 'reasonableness' as referred to by the High Court in Bellgrove v Eldridge. The Court stated:
'The example which the Court' (in Bellgrove v Eldridge) 'gave of unreasonableness was the following [26]:
"No one would doubt that where pursuant to a building contract calling for the erection of a house with cement rendered external walls of second-hand bricks, the builder has constructed the walls of new bricks of first quality the owner would not be entitled to the cost of demolishing the walls and re-erecting them in second-hand bricks."
That tends to indicate that the test of "unreasonableness" is only to be satisfied by fairly exceptional circumstances.'
An example of such exceptional circumstances was stated to be closely aligned with a party 'merely using a technical breach to secure an uncovenanted profit' as referred to by Oliver J. in Radford v De Froberville [1977] 1 WLR 1262 at 1270.
Although the issue was not raised by the parties as they were unrepresented, a serious question to be decided by me is whether the damages sought by the owner for the demolition and reinstatement of the concrete work is unreasonable. As a guide to answering that question the test is whether the owner is using the breach of the BCA to secure an uncovenanted profit.
Pursuant to s 35 of the Civil and Administrative Tribunal Act 2013 the guiding principle is
'to facilitate the just, quick and cheap resolution of the real issues in the proceedings.'
In my view, the question of whether the damages sought by the owner in connection with the concreting work carried out by the builder are reasonable, is one of the real issues in the proceedings and is relevant to whether an order for the payment of money ought to be made pursuant to s 48O(1)(a) of the Act.
In considering this issue I have had regard to the following factors:
1. if damages are awarded to the owner she will be under no obligation to expend them in having rectification work carried out;
2. the concrete slabs constructed by the builder do not differ to the pre-existing concrete areas at the owners residence which do not have a 75mm inspection zone;
3. the owner's previous termite protection system in connection with the premises was based on a chemical underslab system used in March 1997 with a life expectancy of 10 years subject to annual inspections; and
4. the concreting work carried out by the builder did not replace all of the external concreting work at the residence.
Since the owner's termite protection system for the residence, on the evidence before me, relies upon or ought to rely upon annual inspections, those inspections would ordinarily be of the entire residence, including the concrete work carried out by the builder.
Based on the fact that the owner is any event reliant upon annual termite inspections as a means of termite protection to the entire residence, I find that it would be unreasonable for her to obtain an order for damages to demolish and replace the concrete work carried out by the builder in order for that work to comply with Part 3.1.3.3 of the BCA. That would not remove the need for the owner to arrange and pay for annual termite inspections.
For the reasons set out above, I find that the owner is not entitled to a monetary award in her favour in connection with the failure to provide termite inspection zones.
[10]
Any installed termite barrier has been bridged
The reasons above also apply to this defect item. In addition, having reviewed the compliance requirements referred to by the owner's expert, I can find no regulatory material relating to the bridging of termite barriers.
This item of the owner's claim is dismissed.
[11]
Concrete Paving is cracking in places
Photographs 29 and 28 to Mr Connor's report are presumably also put forward as evidence of this defect item. They both show some feature of cracking. I have reviewed the BCA compliance requirements referred to by Mr Connor with the material referred to in paragraph 5.4, and section E of his report. There is nothing in that material that addresses cracking in concrete.
There is no evidence on behalf of the owner that there has been a breach of any regulatory requirement regarding cracking of concrete. Mr Connor does not give evidence of whether or not the concreting work was performed in a proper and workmanlike manner.
I prefer the evidence of Mr Lozina at section 5 of his report in preference to Mr Connor's.
I find that the owner has not proved her case in connection with this item of her claim.
[12]
Concrete splatter is present to the downpipes
Photographs 9 and 10 of Mr Connor's report relate to and are presumably put forward as evidence of this defect item.
I have reviewed the BCA compliance requirements referred to by Mr Connor with the material referred to in paragraph 5.4, and section E of his report. There is nothing in that material that addresses concrete splatter.
There is no evidence on behalf of the owner that there has been a breach of any regulatory requirement regarding concrete splatter. Mr Connor does not give evidence of whether or not the concreting work was performed in a proper and workmanlike manner.
I find that the owner has not established that the builder was in breach of s 18B of the Act in connection with this item.
[13]
Installed box gutter grates are choked with concrete debris
There is no evidence to support this item of claim. It is dismissed.
[14]
Construction and completion of timber daybed
Mr Connor for the owner list 10 items of defective work in connection with the daybed. Mr Lozino comments on the work carried out by the builder. In his opinion, there are two items of defective work which may be rectified for an assessed cost of $214.00.
The evidence establishes that the builder did not construct the daybed. The owner states that the work carried out included new timber on an existing seat and the build of a roof on the structure. The owner originally claimed $3,000.00 in connection with the daybed.
The builder states that he offered to replace the existing façade of the daybed with spotted gum which is a hardwood. He states that the existing structure of the daybed was sound and was made of treated pine. So far as the roof is concerned, the posts for the roof were agreed as being existing by the owner's expert, Mr Connor.
The dispute between the parties regarding the daybed was originally about the finish to the timber and the fact that according to the owner it was absorbing water and deteriorating. The owner states that the builder applied a lacquer finish on the daybed that was not appropriate. She further alleges that the builder's response was that the issues she had raised were maintenance issues and that she needed to re stain and oil the daybed every three months.
The builder states that he informed the owner of the requirement to oil and maintain the daybed. Further he states that he did not lacquer the daybed. It was treated with 'Willows Timber and Decking Oil'. The builder also states that the timber he used is not rotting as alleged by the owner, but is merely weathering due to a lack of regular maintenance.
The dispute between the parties has widened due to the involvement of the experts. I have no choice but to address the ten items of defective work advanced by the owner's expert.
Mr Connor has taken 20 photographs of the daybed which he has annotated. He then states under the heading 'Why is it a problem' 12 items or subject matters. Then there is a section titled 'What is the compliance requirement (s)'. As I have stated above, this method of compiling an expert's report is in my view less than satisfactory. Mr Connor does not connect the problem he identifies with the photographs he has taken and then link those matters to specific provisions of the BCA or Australian Standards in order to demonstrate non-compliance.
I will deal with each item stated at p 54 of Mr Connor's report in turn.
[15]
Work carried out by unlicensed contractor
The builder admits that he was unlicensed. He makes no claim against the owner in these proceedings. The fact that he was unlicensed does not have the effect that the owner will be successful on her claim as a matter of course.
[16]
Flooring timbers are < 75mm above finished ground level
Photographs 30, 31 are referred to by Mr Connor in support of this item.
The compliance requirements that Mr Connor refers to are BCA Volume Two Performance Requirements P2.1 and AS 1684.2.
The annotation to photographs 30 and 31 are that the lack of clearance of the timber may attract termites.
Mr Lozina points out that spotted gum is naturally termite resistant as listed in AS 3660.1.
I accept Mr Lozina's evidence in connection with this item.
I find that the builder did not breach s 18B of the Act in the replacement of the existing timber with spotted gum< 75mm above finished ground level, as alleged by the owner.
[17]
Non - durable radiata pine is not fit for exposed external application
Photographs 32, 33, 34, 35 are referred to by Mr Connor in support of this item of claim.
The compliance requirements that Mr Connor refers to are BCA Volume Two Performance Requirements P2.1 and AS 1684.2. I presume AS 1684.2 is relied upon as it refers to the durability of structural timber.
The annotations to the photographs are that non-durable radiata pine was used to secure daybed walling timber.
The builder has provided documents contained in builder's Ex 1 that show that certain timbers and stainless steel screws were delivered to the residence. The timber was spotted gum decking and in connection with this item of claim, treated pine H3 MPG 10 timber and treated pine H4 GL8 Beams.
The owner's expert attaches a document at appendix F of his report which relates to Red Stag timber which appears to have been used. The document relates to structural timber for interior construction use. The inference is that the builder has used interior timber for external use.
The builder's expert has produced an extract from the CSRIO which states that H3 timber is commonly used in outdoor above ground use and H4 timber is commonly used in outdoor above ground use such as posts.
I prefer the material presented by the builder's expert to the Redstag document in appendix F of Mr Connor's report. The Redstag document is not clear and its meaning and effect has not been explained at all by Mr Connor.
I find that the owner has not produced adequate evidence to establish her allegation that the builder was in breach of s 18B of the Act in connection with this item. I find that the builder's evidence satisfies me that the treated pine H3 MPG 10 timber and treated pine H4 GL8 beams that he used were satisfactory for outdoor use.
[18]
Timber Posts appear embedded in ground (should be 75mm clearance provided)
Photograph 31 is referred to by Mr Connor in support of this item of claim.
In cross examination Mr Connor conceded that the posts on the daybed were pre - existing. As a result this item of claim is dismissed on the basis that the builder was not responsible for this work.
[19]
Lining Timbers are poorly installed and incomplete
There are no photographs relied upon by Mr Connor in support of this head of claim.
This item of claim is dismissed on the basis that there is no evidence to support it.
[20]
Single timber pieces have not been installed
Photograph 49 is relied upon by Mr Connor in support of this head of claim.
I have reviewed the compliance requirements referred to by Mr Connor on p 54 of his report. There is nothing in that material that addresses the need for single pieces of timber.
There is no evidence on behalf of the owner that there has been a breach of any regulatory requirement regarding the failure to use a single piece of timber. Mr Connor does not give evidence that this aspect of the builder's work was not performed in a proper and workmanlike manner.
This item of claim is dismissed on the basis that there is no evidence to support it.
[21]
Exposed Screw ends are a potential hazard
Photograph 39 is relied upon by Mr Connor in support of this head of claim.
The builder's expert agrees that the screws should be cut flush with the timber.
The owner will be successful in connection with this item.
[22]
Painting is poor and incomplete to the overall structure
Photographs 40, 41, 42, 43, 44, 45 and 46 are referred to by Mr Connor in support of this item of claim.
Mr Connor does not explain how the compliance requirements that he refers to relate to this item of claim. The owner's original claim related to the finish of the work carried out by the builder.
The builder's evidence which I accept, was that the daybed was finished in 'Willows Timber and Decking Oil'. There is a conflict of evidence on this issue. The owner maintains that the daybed was finished with a lacquer product by the builder. However the owner has not provided any confirmation to her allegation that the timber was finished with a lacquer product.
I also accept the builder's evidence that he discussed this subject with the owner before he commenced the work.
I accept the builder as an honest witness who is experienced in finishing out door timbers with finishing product, despite the fact that he does not possess a builder's licence. He has produced literature from various suppliers which confirm that ongoing maintenance is required. I prefer his evidence of what product he used to seal the daybed to the owner's evidence which depends on hearsay evidence of a paint consultant at Bunnings.
I would also add that the owner had the opportunity to have her expert conduct or arrange for tests to establish that the timber was stained with lacquer as she alleges. That was not done.
There is no evidence that the builder was in breach of any of the warranties contained in s 18B of the Act in applying 'Willows Timber and Decking Oil' to the daybed. This item of the owner's claim is dismissed.
[23]
The installed gate is not 'fit for purpose'
Photographs 36, 37 and 38 are referred to by Mr Connor in support of this item of claim.
I have reviewed the compliance requirements referred to by Mr Connor with on page 54 of his report. There is nothing in that material that addresses the construction of gates.
The annotations to the photographs referred to states that the installed gate appears too heavy for its hinges.
The builder's expert agrees with this item as stated at section 8 of his report.
The owner will be successful in connection with this item.
[24]
No guttering and downpipes have been installed to the awning roof
This is the last item of the owner's claim.
Photographs 47 and 47 are referred to by Mr Connor in support of this item of claim.
I have reviewed the compliance requirements referred to by Mr Connor with on page 54 of his report. There is nothing in that material that addresses guttering and downpipes.
Mr Connor does not give evidence that the builder ought to have provided guttering and downpipes as part of performing the work in a proper and workmanlike manner.
This item of claim is dismissed on the basis that there is no evidence to support it.
[25]
The outcome of the proceedings
The owner has been successful in her claims that the builder breached s 18B of the act in leaving exposed screw ends and in installing gates that were not fit for purpose.
Mr Lozina has assessed the costs of rectification as being in the sum of $214.00. The quotes supplied by the owner are not broken down into separate items and therefore provide no assistance in assessing rectification costs in relation to these items. I will accept Mr Lozina's assessment of rectification costs on the basis that it is the only evidence of the rectification cost of the two items referred to before the Tribunal.
[26]
Diamond head saw bit
The owner has claimed that when the builder was performing the works, Mr Gaut asked her to pay him the sum of $500.00 to compensate him for a damaged or destroyed diamond head blade that was used in the concreting work.
Mr Gaut does not deny having asked for this payment or the fact that he was paid $500.00.
It is usual that a builder is responsible for all tools and equipment used in the carrying out and completion of a particular job. Ordinarily the costs of tools and equipment will be covered by a builder's overhead and profit.
I have no doubt that the owner paid the builder the sum of $500.00 in the mistaken belief that she was obliged to do so.
I find that the builder had no right or entitlement to obtain the sum of $500.00 from the owner for the replacement of a diamond head blade and that the builder must re-pay that amount to the owner.
I will make an order that the builder must pay the owner the sum of $714.00 within 14 days.
The parties are entitled to make any application for costs that they think appropriate in accordance with the provisions of s 60 of the Civil and Administrative Tribunal Act 2013.
D Goldstein
Senior Member
Civil and Administrative Tribunal of New South Wales
25 March 2015
[27]
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
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Decision last updated: 11 June 2015
Parties
Applicant/Plaintiff:
Michelle Gales
Respondent/Defendant:
Peter Oliver Gaut and Lana Gaut t/as Total Rock Concepts