Paul Smith & Mary Smith v John Orr

In April 2004, when he inspected the house, Mr Williams could not locate any defective skirting boards. He was shown an area by Mr Smith. Mr Williams gave evidence that the set corner of the skirting board was out of square because the skirting board could not be made to a 90 degree angle due to the fact that the plasterboard was set on a metal 90 degree angle with the skirting board installed on top. He said that this was normal and that a gap would be created behind the rear of the skirting boards and the plasterboard cornice if the corner was "levelled". He considered that no remedial work was required for this matter.

It is not entirely clear that Mr Williams looked at the same skirting boards that Mr Whitton and Mr Kendall described as defective. Mr Williams took a photograph of the corner that he had been shown by Mr Smith showing that, at the corner, the skirting is not quite straight or at right angles at the join. This may be what Mr Whitton observed but does not appear to be what Mr Kendall observed.

The effect of Mr Williams's evidence was that the deviation from true was of little consequence and was, in fact, virtually inevitable if a metal angle was used in the corner.

For a fastidious home owner, however, even a relatively minor flaw in a wall or skirting board may be aesthetically displeasing and constitutes an apparent defect. That is a relative and subjective judgment and the court may hesitate to make a finding against a builder on that basis alone. In this case, however, the skirting was obviously out of level and was displeasing to the eye.

Aesthetic flaws tend to be dismissed as "merely cosmetic" by some critics. When, however, a home owner is paying for a service and hopes that, for the large sums of money that he or she is paying a builder, the house will be well-built and pleasant to look at, a shoddy job done with a "near enough is good enough" attitude is likely to be offensive and repugnant to that owner. He or she has to live with the fault long after the builder had forgotten the house. Sometimes owners may be obsessively "picky" but good aesthetics are an integral part of good architecture and good building and owners have a right to expect that builders will respect certain aesthetic standards. Building projects are not merely technical problems or puzzles to be solved mechanically.

This was the first of a number of instances in which Mr Williams gave the benefit of the doubt to the builder where an aesthetic, as opposed to technical, judgment had to be made. In my view, Mr Williams's view of what is "tolerable" in this respect and some others that I mention below is not what most people would accept. It is noteworthy, in this context, that Mr Whitton and Kendall regarded the workmanship as poor and that the fault was able to be rectified. That suggests that Mr Williams has a higher tolerance of either poor workmanship or aesthetically displeasing work or both than some others in the construction industry. It also suggests that his evidence to the effect that the fault was unavoidable was incorrect. If so, the weight to be attached to his opinions when a question of aesthetics arises is less than it might otherwise be given.

Mr Rikys's opinions as to the quality of the workmanship in this regard and most others I have given relatively little weight because, first, he had a vested interest in claiming that it was necessary to do the work and, second, because he adopted, virtually in its entirety, Mr Whitton's assessment of what needed to be done to make the house good.

On the other hand, given Mr Whitton's experience and training in the industry, it was, in my opinion, also reasonable for him to offer the opinion that the way the skirting boards had been constructed was "not acceptable building practice". In the circumstances that is a synonym for "unworkmanlike". It does not purport to be based on some empirical benchmark set by, for example, the Australian Standards Association. Rather, it is a professional judgment by an expert about the standards that apply within his profession. There is a subjective or discretionary element in the judgment, perhaps, but, because an experienced builder has a far bigger sample to judge the work against, his or her experience being across the spectrum of building work, from excellent to shoddy, it is likely to be a far more objective judgment than that offered by the fastidious home owner. In many cases, the judgment cannot be an entirely empirical one: a good judge of professional standards will apply his or her intuitive response as well as whatever empirical standards may apply. Mr Whitton, it appears, sets a higher standard than Mr Williams regarding aesthetic issues and finishes.

If the defect was technically avoidable and rectifiable - in short, was an unnecessary default - it was reasonable, in my view, for the Smiths not to accept the work and for Mr Whitton to judge it to fall below the proper standard. Mr Smith was able to point out the fault. Self-evidently he considered it a flaw. Mr Whitton did too. Although it is a finely balanced judgment, I accept that it is more probable than not that the work was defective and that it was reasonable to rectify it. Paintwork 34. It is convenient to deal with the whole issue of paintwork at this point. It is one of the largest of the single items claimed by the plaintiffs. The real difficulty in relation to this issue is whether the work left by Mr Orr was merely incomplete and would, had it been completed, have been satisfactory or whether it was defective, requiring a fresh start.

Mr Kendall stated in his report that the doors had been poorly painted, with hinges having been painted over; that the paint finishes in the built-in wardrobes and cupboards were poor; that some of the paintwork was uneven; that there was paint on a window frame; that the ceiling paint in the en suite bathroom and toilets was flat plastic; that some of the paintwork was incomplete but that an inadequate supply of paint had been left to complete the job in his opinion.

Mr Whitton observed that the insides of the wardrobes had had "minimal painting". He also noted that the finishes were poor; that pencil marks and nail holes were still visible through the paint that had been applied; and that what painting had been done was commonly blemished. He noted that the interior painting was generally incomplete. He stated in his report that sections of plasterboard had not been properly sanded and that the ceilings and doors, which should have been completed, were not. He also noted that joins in the plasterboard remained visible and that the cornices had not been adequately prepared prior to painting. He was also of the opinion that internal paint may have been used for external surfaces but was unable to determine with precision whether that was so.

Mr Rikys said that the paintwork he observed when he first saw the house was "disgraceful" and that it was "see-through" where paint had been applied. He said that he had viewed blemished paintwork in the house and that he considered it more convenient to put three coats (the standard when starting from scratch) over all the surfaces rather than trying to make distinctions between various surfaces, some of which had had some paint applied to them and others which had not.

Mr Williams took the view that much of the paintwork was incomplete but that what had been done appeared to him to have been done in a tradesman-like fashion. He considered that an adequate credit had been allowed by Mr Orr to the plaintiffs in respect of incomplete painting.

Counsel for the defendant criticised some of Mr Whitton's opinions because, he said, they lacked a proper basis. This was particular where Mr Whitton offered an opinion that some work had not been done to "an acceptable standard". If that criticism had a basis itself, it could have been applied with equal force to Mr Williams's opinion that Mr Tomazin's painting was "tradesmanlike". He did not explain how he arrived at that assessment. In my view, he was entitled to offer the opinion based on his experience in the construction industry but his opinion conflicted severely with those offered by Messrs Whitton, Kendall and Rikys. To pick up a specific point, if paintwork was so thin in the wardrobes that pencil marks and nail holes could be seen under it, that suggests that a poor job of preparing the surface had been carried out. If that is the case, Mr Williams's characterisation of such work as "tradesmanlike" suggests either that he has a high tolerance of poor preparation of painted surfaces or his standards are lower than some of his colleagues in the industry or both.

The difficulty the plaintiff faces in regard to the paintwork is that much of it was self-evidently incomplete: photographs of bare surfaces demonstrate that. It was common ground that the Australian Standard and the industry standard is that three coats are to be applied before paintwork is considered complete. Some painting had been done but it is not clear how much because Mr Orr did not call Mr Tomazin, his painter, nor did he give evidence about this himself. I do not consider that it would be fair to draw the inference that Mr Tomazin's evidence would not assist Mr Orr because, although there is some evidence of unworkmanlike painting, such as the painting of door hinges, it is reasonably possible that the flaws in the work would have been cured if the work had been completed.

It is a cliché but a truism that time is money when dealing with such matters and it is quite conceivable that it would have saved time (if not paint) for the replacement painters to be unconcerned with having to work out how many coats of paint to apply depending on what room or what surface within a room they were painting. That was the effect of Mr Rikys's evidence. Given that there is strong evidence that in some parts of the house no paint had been applied at all, and in others only a thin coating, it was, in my view, reasonable to apply three coats to all the surfaces to prevent blemishes or problems with differences of colour, such as patching, notwithstanding the fact that in some parts of the house the actual amount of paint applied may have exceeded the requirements of the Australian and industry standard.

The question then is whether the credit given by Mr Orr was a reasonable one in the circumstances. We shall deal with that issue in due course. Installation of doorknobs and door hardware

Mr Smith gave evidence that on 15 June 2001 at about 9.30pm the door handle on one of the bedrooms ceased working properly. He said that he could not get into the room. Eventually, access was gained through a window. He said that the tongue of the lock had jammed into the striker plate. To fix the problem the door was removed from its hinges. Mrs Smith also had a problem with a doorlock.

When he inspected the house, Mr Whitton found the door hardware for four doors was not installed to an "acceptable standard". He found that the door hardware was brass-plated, that the brass was rubbing off, that the mechanisms were sticking commonly and that latches and strikers had been cut in the wrong places so that the doors did sit flush.

Mr Kendall found that "the door furniture fitout is poor with striker plates and latch plates all generally below the surface

Mr Williams, when he saw the house, found that the door furniture was working. Mr Smith identified the handles in question to him but thought that they were probably working because of the dry weather.

This is not an instance in which some sort of professional standard really needs to be applied and tested. Messrs Whitton and Kendall gave credible evidence evidence that the door handles were not working properly. Mr Smith gave an account, which had the ring of truth, about having to climb through a window to gain access to a bedroom because the lock jammed.

In my view, the plaintiffs have satisfied their onus in respect of liability on this issue. Vanity unit

A number of defects are alleged by the plaintiffs in respect of the vanity units in the bathrooms. Mr Kendall noted in his report that the corner of the ensuite vanity unit was cracked at the floor and had suffered water damage. He also noted that the grout work behind the vanity was faulty but did not specify in what respect.

In the main bathroom he found cracking in the wall board. He also found that silicone sealant had been used behind the vanity but not on the end. He found that a vanity drawer had had an edge ground off it but that it still dragged on the tiles and that the vanity was not sealed to the wall.

Mr Whitton gave evidence that he had observed that the side edge of the bottom drawer of the main bathroom vanity had been planed down so as not to rub against the coping tiles, removing the laminated surface and exposing the particle board. He also noted that the vanity had not been sealed to the wall. Mr Whitton also note that the grout at the junction of vanity and the wall was cracking away. He considered that an inappropriate grout had been used and that a flexible grout should be installed in accordance with the Building Code of Australia standard.

Mr Williams agreed that the grout at the junction and the wall was defective. He also observed that the drawer had been trimmed to avoid touching the tiling. He said that the drawer had, however, been adequately sealed and painted and required no rectification work. A photograph was tendered by the defendant of the drawer and the slot for it in the vanity cabinet. He also observed that the vanity had not been sealed to the wall. This he considered to be a very minor defect requiring only $10 worth of labour and materials to fix.

As to the drawer, the evidence is in conflict. As far as it is possible to tell from the photographs, the defect is minor. It appears to have been painted over or sealed but it is somewhat difficult to tell. Mr Whitton seems to have allowed for the manufacture of a new drawer rather than the repair of the drawer provided by Mr Orr.

Notwithstanding the fact that there will almost invariably be some defects to be rectified in any building job, there is considerable evidence of poor workmanship and poor finishing of some individual items. Given that the painting was incomplete and that there is some evidence that the paint used on the bathroom ceiling was flat plastic rather than a much more waterproof enamel finish, if the drawer was painted one would have a doubt about whether it had really been adequately waterproofed, despite any appearance of that having been done. On the other hand, the cost of ensuring that it was properly sealed would be minor. The sum claimed by the plaintiffs to fix the drawer appears excessive. Similarly, the sum claimed to seal the vanity against the wall seems excessive. It is a matter of removing the current grout and replacing it with an appropriate material. Commonsense suggests that this is not a large job and that the amount of material involved is not great.

Neither expert provided much of a basis, other than experience, for his opinions. Fitting of aluminium window 56. An aluminium window fitted in one of the bathrooms is the subject of one of the plaintiffs' claims. Mr Kendall did not refer to it in his report of early 2001. Mr Whitton, however, found that the window was out of square. More significantly, perhaps, he found that "the sash does not roll consistently and the window frame does not correctly fit into the frame". He considered that the window had not been installed to an acceptable standard or that the window was defective.

57. Mr Williams took the view that the measurements of the window complied with the tolerances allowed by the Australian Standard and that the window operated correctly when he tested it. He considered that no rectification was required.

58. Whether or not the measurements were tolerable according to the Australian Standard, the real question is whether the window worked as designed. There is no reason to think that Mr Whitton made up his evidence and that is not suggested. It is probable that the window worked tolerably on some days and not on others. I infer that a window would comply with the Australian Standard if it was fitted with measurements that complied with the tolerances allowed and operated as designed. But whether or not it complies with the Australian Standard, a badly operating window is, self-evidently, defective, not of an acceptable standard for a new window and requires rectification. Mr Williams does not suggest a method of rectifying the window other than that adopted by the plaintiffs. It would, therefore, seem reasonable for them to have had it refitted. The fitting of doors and thresholds
59. The plaintiffs make claims in respect of the fitting external doors. They also allege that the construction of the thresholds to external doors was so poorly done as to create a trip hazard. It is convenient to deal with these alleged defects together.

Mr Kendall found that the external door thresholds did not continue to the outer edge of the brickwork, "causing a dangerous double step." He also found that the thresholds had no outwards slope to drain water. As to interior doors, he noted that "door thresholds are installed proud of floor boards causing a potential trip hazard." In the laundry, he found that the door frame did not continue to the floor and that the sliding door had no runners. In the kitchen, he found that the rear door was out of square to its frame. In the pantry, he found that the sliding door guides needed adjustment. In the dining room, he noted that the door frame was not square at the top and that the door was "out of wind, i.e. installed twisted to [its] frame." In the hallway, he noted that the built-in wardrobe doors had uneven margins. In the en suite bathroom and toilet, he found that the doors were scraping on the floor. He found that the study door had also had uneven margins and that the external rumpus room door was out of square to the frame.

Mr Whitton found that the external doors to the rumpus room, study, entry and kitchen were "noticeably out of square. The doors themselves appear to be accurate but the doorframes are not correct." He did not fault the internal doors. He also noted that the external doors had a double step due to the raised thresholds not extending the full length of the brickwork to the step of the house. He regarded this as a trip hazard.

Mr Williams found that the kitchen and rumpus room external doors were 3mm out of square when measured diagonally, as was the south-facing front entrance door, with the doors operating correctly. He found that the external study door was square when measured diagonally. He considered that the doors were all within "normally expected tolerances". He did not allow for any rectification work.

Mr Williams was also of the view that no alteration works were required by the builder in respect of the thresholds. He said that the Building Code of Australia does not specify that a timber threshold should be flush with the external face of an external masonry wall and he considered it "normal" for such a double step to have been left.

Although Mr Williams found that a number of the doors were 3mm out of square measured diagonally, he did not state whether they were out of square measured in any other way. Whether or not, measured the way he did it, the doors fall within the tolerances allowed, if a door is "noticeably out of square" it is, as a matter of commonsense, defective aesthetically and such a flaw ought be corrected.

In my view, whether or not it is "normal" to leave a double step constituting a trip hazard on a threshold, as a matter of commonsense it is a defect because it is a potential danger to persons crossing the threshold. Preparation of cornices 66. Mr Kendall observed that in the lounge room, the cornice to wall joint was "poor", as was the cornice to ceiling joint. He noted that the wall joints and cornice joints needed sanding for painting. In bedroom 1 and the hallway, he found that the painting of the cornices was blemished. He did not say how.

Mr Whitton observed that the cornices in all rooms appeared to be cracking and that was of the opinion that they had not been adequately prepared for painting. He said that there were blotches and patches visible and that adhesives had not been sanded back.

Mr Williams, on the other hand, found that the cornice cracking was "within tolerances" specified by the Office of Fair Trading Guide to Standards and Tolerances (2003). He said that "cornice cracking is a normal expectation within new residences", especially those built with steel frameworks. He was of the view that the cracking, which was less than 1mm in width, could be "filled and repainted the next time internal painting of the residence is carried out" and that no rectification was needed.

It is not clear to me, because he was not asked nor did he volunteer the information, how often Mr Williams would expect an interior paint job to be redone. Ordinary experience of life suggests, however, that even fastidious people will generally not repaint the interior of a house for a number of years. If his view of what is "tolerable" or "normal" were to be accepted, persons who paid builders large sums of money not only for a structurally sound construction but one that was aesthetically pleasing would be required to put up with the sight of cracking cornices virtually from the time they moved into a new house. Moreover, if the problem is caused by the expansion of steel frameworks, but is soluble, Mr Williams did not offer a suggestion as to why it was acceptable for Mr Orr to leave the problem unsolved but for the Smiths to fix the problem themselves at a later stage. Commonsense suggests that filling the cracks with a flexible filler may be one part of the solution readily available to Mr Orr but Mr Williams did not make that suggestion himself.

In my view, Mr Williams's view of what is "tolerable" in this respect and some others that I have already mentioned is not what most people would accept. It is noteworthy, in this context, that both Messrs Whitton and Kendall regarded the workmanship as poor. That again suggests that Mr Williams has a higher tolerance of either poor workmanship or aesthetically displeasing work than some others in the construction industry. If so, it reduces the weight to be attached to his opinions when a question of aesthetics arises.

In any event, on the weight of evidence I consider it more likely than not that the cornices were poorly prepared and thus required rectification before they could be painted. Door jambs 72. Mr Kendall noted that the door frame on the laundry did not meet the floor. He also saw holes or gaps at floor level where the door frame met the floor in the hallway and in the en suite bathroom and toilet. Mr Whitton also saw gaps between door jambs and floors in the laundry, en suite bathroom and hallway.

73. Mr Williams, although he conceded that gaps of between 2 and 5mm had been left under doorjambs and architraves, was, once again, of the view that this was "a normally expected situation", allowing for movement within the tongue and groove floorboard system. He considered that the gaps were acceptable aesthetically and would normally be covered by carpet or vinyl flooring. He said that he was unaware of "any TAFE textbook or any other publication which specifies that doorjambs/architraves should be installed hard against the tongue and grooved surfaces." He was of the view that no rectification was required.

74. Once again, Mr Williams's notion what is aesthetically tolerable appears to be add odds with those of some of his colleagues in the construction industry. It is one thing for the door jambs to be left off the boards if a carpet was going to be laid but to leave significant gaps above bare boards is an ugly looking finish. In my view, it was reasonable to rectify this problem. Shower tiling
75. Mr Whitton noticed that a tile in the en suite shower recess had been nicked when being cut for the shower rose. A 3mm angle grinder incision had been made in the tile beyond the point at which the cutting ought to have finished and was then grouted over. He considered this to be a poor finish and recommended that the tile be removed and replaced.

76. Mr Kendall noted a chip on the shower door glazing. This does not seem to have been the same flaw observed by Mr Whitton. He also observed that a tile had been poorly cut around the soap holder in the shower.

77. Mr Williams, in his report, referred to a tile near the soap dish assembly suffering from "a very minor indentation". He considered that the flaw was so minor that rectification was not required. He provided a photograph of the shower recess but not a close up of the tile in question. It was virtually impossible to see the flaw in the photograph.

78. This was one of those minor flaws of an aesthetic nature that one would expect a builder with pride in the appearance of his work to have fixed when it occurred. It would have been far easier for the tiler to have simply cut a new tile at the time than to cement in a badly cut tile, grouting it to fill the flaw and later having to remove it and replace it with properly cut tile. The work was not done in a tradesmanlike manner. Mirrors
79. When Mr Whitton conducted his inspection he found that the mirrors in the bathrooms had not been installed as the wall painting was incomplete. When Mr Williams carried out his inspection, he found that the mirrors had been installed. He said that he was told by Mr Smith that Mr Orr had supplied and installed the mirrors with the mirror glazing having been supplied by Mr Smith. He saw no need for further work.

80. Mr Smith disputed Mr Williams's version of their conversation on this topic. His evidence was that his father had supplied the mirrors and that he had installed them.

81. Mr Orr agreed in cross-examination that he had not initially installed the mirrors. He said that they were not installed because the Smiths had not selected the mirrors and that he had given them a credit for the mirrors. He said, however, that he had later installed them but was not sure whether he had charged for that service.

82. There is no suggestion that Mr Williams fabricated his evidence but the weight of evidence suggests that Mr Smith's version is more likely to be correct and that Mr Williams made a mistake in his contemporaneous notes which found its way into his report. His version is very similar to Mr Orr's and that is the more likely source of his comment. Mr Whitton's observation that the mirrors had not been installed is much more consistent with Mr Smith's version of events than with the suggestion that Mr Orr had supplied and installed the mirrors.

83. Mr and Mrs Smith gave evidence of a long-running battle with Mr Orr over rectifications. That evidence was not substantially contested by Mr Orr although his position is that they were overly and unfairly demanding. Nevertheless, against that background, while it is possible that Mr Orr did some sort of work regarding the mirrors, I find it difficult to accept his claim that he installed them. The real question is whether he allowed the plaintiffs a credit in respect of the mirrors. According to Mr Orr's invoice of 10 December 2000, he allowed a credit of $500 in respect of mirror and fittings in the two bathrooms. That is also strong evidence that Mr Orr did not install the mirrors. Floor wastes in toilets
84. Mr Kendall did not comment in his report on the absence of floor wastes in the toilets. Mr Whitton noted that the construction certificate consent given by Lachlan Shire Council required the installation of floor wastes in the toilets and that this had not been done by Mr Orr. He, therefore, considered that the work was defective.

85. The construction certificate consent provided that it was a condition that "The floor surface of all wet areas shall be properly graded and drained and the junctions of the floor shall be treated to prevent the penetration of moisture into the walls. Where WCs are located in separate rooms, this requirement also applies to that room."

86. Mr Williams appears in his report to have overlooked this condition. He was of the view that the floor waste was not required by an Australian Standard and he stated that he had been told by a council inspector that there was no council requirement for them to be installed. If that is the case, both the inspector and Mr Williams appear to have been in error.

87. Mr Orr's evidence was that the floor waste was not required because the toilet was not a wet area. He relied on what he seems to have regarded as an ambiguity in the construction conditions. The consent condition is not ambiguous in my opinion: if the toilet was in a room separate from the bathroom or other wet area, it required its own floor waste.

88. In my view, the weight of evidence demonstrates that the floor waste was in fact required by the council and was not installed by Mr Orr. This was a defect requiring rectification or incomplete work for which Mr Orr charged the plaintiffs in full. Downpipes
89. The plaintiff claims that inadequate downpipes were installed by Mr Orr. Mr Orr's explanation was that he had spoken to the Smiths early in the job and had been told by them that they wanted to have a water tank at each end of the house with a downpipe running into it. He had agreed to this proposal and set up the downpipes accordingly. He said that by the time he had finished the downpipes the tanks were on the property but the Smiths had then changed their minds and decided to put them both on the eastern end of the house. He said that he had asked them what they proposed to do at the other end of the house and had been told that the water would "just have to run off onto the ground." In cross-examination Mr Orr agreed that he had not told the Smiths what the Australian Standard for downpipes required.

Although statements were exchanged prior to the trial, and therefore it was not strictly necessary for the defendant to cross-examination the Smiths about this conversation, no evidence-in-chief or reply was given by the Smiths concerning any conversation about downpipes. Mr Orr's version was challenged in cross-examination but he remained steadfast. No alternative version of the conversation was put to him, merely a suggestion that the conversation had not taken place. It is therefore very difficult to determine whether Mr Orr's version of this conversation is correct.

Mr Kendall made no observations concerning the downpipes. Mr Whitton measured the roof area of the house at approximately 48 square metres. Only four downpipes had been provided. He stated that the perimeter distance of the roof is 92.6 metres. The Building Code of Australia specified spacings between downpipes to be no more than 12 metres. Thus a minimum of eight downpipes ought to have been provided.

Mr Williams took the view that "sufficient downpipes have been installed to comply with the Building Code of Australia" and that no further work was required. Mr Williams's evidence did not meet the specific issues that Mr Whitton raised. Both experts relied on the Building Code as the basis for their opinions. Mr Williams did not disagree in his report with Mr Whitton's measurements of the roof and did not specify in his report the error he considered Mr Whitton had made. He provided no measurements of his own to support his own conclusions.

Given that he has provided a plausible basis for his opinion and Mr Williams has not, I prefer the evidence of Mr Whitton on this point.

Mr Orr is an experienced builder and apparently familiar with the Building Code of Australia. If his clients requested an insufficient number of downpipes but relied on his expertise in the field of house construction, as they self-evidently did, it was a breach of his duty of care, in my view, for him not to have advised the Smiths of the requirements of the Code and the reasons for them. The reason for the specification is obvious: sufficient capacity to drain storm water from the roof in times of intense downpours is needed to prevent water entering the house from overflowing gutters. Mr Orr agreed that he had not installed the downpipes in accordance with the Building Code standard and that he had not advised the clients of the risks of not doing so.

In my view, the plaintiffs have discharged their onus in relation to this item. Sub-floor wall under the en suite bathroom 96. Mr Whitton noted in his report that "a section of the sub-floor wall under the en suite area has apparently collapsed resulting in movement to an engaged pier and part of the wall pulling away from centre. Mortar joints have failed and are also excessive at over 10mm+". He thought the cause of the slippage was likely to be differential movement of footings or foundations and "excessive mortar joints". Mr Kendall made no findings on this issue.

97. Mr Rikys said that he inspected the sub-floor area and found a broken structural pier. In cross-examination he said that it had been necessary to jack the building up 15 mm to repair it.

98. Mr Williams stated that his inspection of the sub-floor area revealed no brick wall under the en suite bathroom that had partially or fully collapsed. He provided a photograph that depicted an engaged brick pier that had been constructed in an offset manner "to cantilever over a ground surface-mounted waste pipe". He considered that no rectification work was required.

99. Although Mr Williams, in my view, was too willing to tolerate aesthetic flaws, on this point he gave careful and considered technical evidence which had no aesthetic flavour. As far as I can tell, he made a determined effort to investigate the alleged defect in the sub-floor masonry but could not detect one. In this instance, the evidence is equivocal. Nevertheless, while Mr Rikys's recollection of what works were actually required seems to have been based largely on the Whitton report and therefore may have been reconstructed to a significant extent, his evidence that it had been necessary to jack up the building to repair the pier was not contradicted and was consistent with the evidence given by Mr Whitton rather than by Mr Williams. On the balance of probabilities it seems more likely than not that the pier required rectification. Did the plaintiffs take reasonable steps to mitigate their damages ?
100. One of the more contentious questions this case raises is whether the plaintiffs were reasonable in their approach to mitigating their losses. It is contended for the defendant that, even if he is liable for the rectification work claimed by the plaintiffs, costs incurred by the plaintiffs were disproportionate and highly unreasonable.

It is important to remember that Lake Cargelligo is a small, remote town, an oasis in the otherwise very dry Western Plains. The Smiths did not have a large number of local tradespeople to choose from when seeking their first builder nor when they sought someone to rectify Mr Orr's work. Mr Smith gave evidence in cross-examination that it had been difficult to get builders to visit Lake Cargelligo to quote for the rectification work. His evidence was that, nevertheless, he had sought and obtained quotations from two Griffiths builders, one of whom fell out of contention due to illness. Mrs Smith said that her insurer had requested that they obtain three quotations from builders. She said that she had been only able to get two and that but had not seen the quotations themselves.

Although some, admittedly fairly muted, criticism was made by counsel for the defendant concerning the obtaining of quotations, I am satisfied on the evidence that Mr and Mrs Smith took reasonable steps to find some competitive quotations.

The evidence of Mr Rikys, however, raised a more problematic issue. Mr Rikys revealed in cross-examination that he applied different rates of profit margins to jobs, depending on the status of the actual client. He said that for domestic jobs he applied a 12.5 per cent profit margin; for commercial work a 15 per cent margin; and for insurance jobs, a 20 per cent margin. In addition, when costing a job he said that he costed it on a "worse-case scenario" basis. This meant that even if the particular work was much more difficult to complete than originally anticipated, he (or his company) would not suffer a loss. Conversely, if the work was done without unanticipated difficulty, it followed that his company made additional profit. He also conceded that a 17 per cent margin was added to the costings for overheads on labour costs. He further agreed in cross-examination that if he had priced the job on a "costs plus" basis, that is, actual cost plus profit margin of 20 per cent, it may have cost about $25,000. Mr Rikys stated in his evidence that the practice of adding an extra measure of profit for insurance jobs was common if not standard industry practice.

On the other hand, Mr Rikys emphasised the point that the quotation he had given was also based on the fact that his team of tradesman came from Shepparton in Victoria, were living away from home and entitled to an allowance for doing so and for other penalty rates. They had been added into the quotation.

Purchasers of building services are in the unenviable position of having to deal with real builders in the market place rather than quantity surveyors or building consultants armed with Cordell's Guide. In short, the laws of economics apply - the pressures of supply and demand determines market prices in a competitive market. Moreover, it seems that builders, unlike quantity surveyors or building consultants conducting a thorough investigation of the quality of work done by another builder, generally apply a much more intuitive or rough-and-ready approach to costing jobs. Rather than conducting an intensive analysis of the costs and work to be done, it seems from the evidence of Mr Rikys and the general approach taken by Mr Orr to quoting for the project, that many builders tend to allow for unforeseen contingencies by building margins into their costings.

Insurers may be able to exert their economic muscle at times in the market but they are bound by the forces of supply and demand as well as homeowners. Nevertheless, the fact that an insurer will ultimately pay the bills does not justify what would otherwise be an unreasonable claim and certainly does not legitimate sharp practice or rapacious behaviour by suppliers of goods and services.

In this case, it seems to have been reasonable, given the location of the house and the general difficulties of finding builders willing to travel to the site to quote let alone take on the job, for the plaintiffs to have engaged a Victorian firm to undertake the necessary works. That necessarily entailed taking on the extra costs involved in payment of living-away allowances, penalty rates and the like. Given the operation of the market in that location at that time, the quotation given by Rikys & Moylan may, if the other quotations obtained are any guide, have been on the face of it, reasonable.

That said, however, to gauge the overall reasonableness of the quantum claimed by the plaintiffs, however, it is, necessary to deal with each of items individually.

In relation to tortious damage, the measure of damages is that sum of money that will put the injured party in his or her original position. In some cases, that will be measured by the diminution in the value of the property, in others, it will be the reasonable cost of reinstatement or repairs, provided that it is not extravagant. See Evans v Balog [1976] 1 NSWLR 36; Hyder Consulting (Aust) Pty Ltd v Wilh Wilhemsen Agency Pty Ltd [2001] NSWCA 313. In Hyder Consulting (Australia) Pty Ltd v Wilh Wilhemsen Agency Pty Ltd [2001] NSWCA 313, Sheller JA said (at [54]):

In my opinion, if a defendant negligently damages or destroys the plaintiff's property and there is no evidence that the plaintiff had any reasonable choice other than to replace or repair what had been damaged or destroyed, the cost of replacement or repair, provided it is not extravagant is recoverable as damages. In each case it is a question of fact ." 110. Giles JA in the context that the trial judge had based his assessment on an estimated costs of repairs when the actual cost was known said (at [99]):

This does not mean that a theoretical reasonable cost is to be preferred over the actual cost where the actual cost is known and can be taken as the reasonable cost. If the rectification work has not been carried out, then a theoretical reasonable cost must be found and, because damages must be assessed once and for all, must be awarded even though the rectification work might not be carried out. (I have held that, if it is found that the rectification work will never be carried out, no damages should be awarded: see Central Coast Leagues Club Limited v Gosford City Council , 9 June 1998, unreported). But if the rectification work has been carried out and the actual cost is know, that provides sound evidence of the reasonable cost and should ordinarily provide the basis for damages. 111. While the case was brought in both contract and tort, neither party argued that any distinction ought be made as to the proper measure of damages. In this case, there have been breaches of the defendant's duty of care to the plaintiffs and breaches of implied contractual terms that the defendant would carry out the work with reasonable care and in a tradesmanlike manner. The reasonable cost of repairs is the appropriate measure of damages in this case. That, of course, will not entitle the plaintiffs to better their property at the expense of the defendant nor for unreasonable costs to be claimed. The defendant contends, in effect, that at least some of the costs claimed by the plaintiff in this case were unreasonably extravagant.

I will deal with each item as listed in the statement of claim:

a. Skirting boards: Mr Whitton allowed $120; Mr Rikys charged $308. Mr Whitton, when providing his estimate, relied on Cordell's Guide and his general experience. He did not allow for unusual local factors. Notwithstanding the special conditions under which he did the work, Mr Rikys seemed to me very often to charge at what appeared to be at the upper end of the scale for the work. He was dismissive of any suggestions that his company had overcharged but did not explain why there were frequently large discrepancies between his charges and those estimated by Mr Whitton. Mr Whitton based his figures on Cordell's Guide to construction costs and did not take a noticeably penny-pinching approach to the plaintiffs' complaints. In some instances, Mr Rikys charged under the estimate given by Mr Whitton but his tendency was to exceed Mr Whitton's estimates substantially. Where there was a discrepancy, the best estimate of the reasonable costs seems to me to have been somewhere between Mr Whitton's estimate and the actual charge applied by Mr Rikys. (Mr Williams's estimates were so at odds with the quotations offered by builders and with Mr Whittons's estimates that I would generally place little reliance upon them when he offered them.) In relation to the skirting boards, I would allow $200.

b. Wardrobe screwcaps: Mr Whitton allowed $75; Mr Rikys charged $154; Mr Williams estimated $5.20. This was a very minor defect. Screw caps are a very cheap item readily available from hardware stores. Minimal effort would be required to fit them. In this instance I agree with Mr Williams's general evidence. Whether two caps were missing, as he asserts, or they were several, the cost and time involved in rectifying the defect remains small. It appears to me that this may have be one of those instances referred to by Mr Rikys where he added a margin for unforeseen contingencies. It is, with respect, difficult to see any unforeseen contingency involved in buying a packet of screwcaps and pushing the required number into the holes or slots. I would allow $10 for this item.

c. Wardrobe headers: This was an admitted defect. Mr Whitton allowed $220 for repairs. Mr Rikys charged $264. Mr Williams allowed only $176. Allowing for real world conditions and the operation of market forces, I would allow $264 as the real and reasonable cost of repairs.

d. Wardrobe painting: This was an incomplete job but, nevertheless, probably carried out poorly insofar as it had been completed. Mr Whitton allowed $170 for this work. Mr Rikys, who simply accepted a quotation he had been given by a sub-contracting painter, charged $2238.50. Although I have found that it was reasonable for the painter to start afresh on the paint job, given the small surface area inside the wardrobe, the sum charged by Mr Rikys seems excessive. It is about 12 times Mr Whitton's estimate. Commonsense and ordinary experience of the world suggests that the application of three coats of paint would have taken a skilled and efficient painter relatively little time and that the cost of materials would not be great. Taking into local conditions, I would allow $250.

e. Door furniture: Mr Whitton allowed $320 in respect of this item. Mr Rikys charged $561. Mr Williams, although not conceding liability, allowed $220. Neither Mr Whitton nor Mr Williams made provision for the importation of a Victorian builder to conduct the repairs and for the extra costs that would entail. I would allow $450.

f. Paintwork: As previously noted, this work was incomplete. It is impossible to say to what extent it was incomplete, hence I considered that it was reasonable to start the job again. Mr Whitton allowed a sum of $2850, whereas Mr Rikys charged $6506.50. Given the number of walls, ceilings, doors and woodwork to be redone it is difficult to assess how reasonable the costs claimed were. One possible gauge may be that in January 2000, Mrs Smith obtained a quotation for painting from a Mr Marshall, a painter from West Wyalong. Mr Marshall quoted a sum of $3700 to do the interior and exterior painting. Given that the work was actually carried out in 2004, some allowance ought be made for the passage of time. Nevertheless, given that Mr Marshall was willing to do the work for $3700 and was located in West Wyalong, a distance of no more than 100km from Lake Cargelligo, it seems reasonable to suppose that he might still have been available to do the work in 2004 and that his quotation would not have increased dramatically in the time. I would allow $4000 for this work. Mr Orr allowed a credit of $1130 for painting. The plaintiffs' damages in respect of painting are, therefore, $2870.

g. Grout near vanity: Mr Williams conceded that this work should be done. He allowed $20 for the work. Mr Whitton estimated a cost of $175 and Mr Rikys charged $319. It is obvious that the major cost involved in this work was labour. The materials would have cost relatively little. The real issue was how long the work would take. Applying the test of commonsense and experience of life, and noting that this was a relatively minor repair, $319 seems excessive in the circumstances. On the other hand, Mr Williams seems to have taken a rather minimalist approach. In this case, the estimate offered by Mr Whitton, with some addition to make allowance for the added costs involved in bringing Rikys & Moylan from Victoria, seems the most reasonable estimate. I would allow $200.

h. Vanity drawer: This was a minor repair. I cannot see that a new drawer would have been required if the drawer was properly sealed and painted to make it waterproof. Mr Williams conceded that a flaw existed but thought that no further repair was required. Mr Whitton, on the other hand, estimated a proper repair would cost $220. Mr Rikys charged $297. Both these charges seem to have been based on building a new drawer. As far as I could tell from the photograph, all that needed doing was a small repair job with a proper sealant and paint being applied to make the planing of the drawer virtually invisible and to repair any cosmetic damage. I would allow $30.

i. Vanity seal: This was another item conceded by Mr Williams. Once again, this appears to have been a relatively minor repair. Mr Williams allowed $10 for materials and labour. Mr Whitton estimated a cost of $140. Mr Rikys charged $165. While the amount of material used would have been relatively small, it was not made clear precisely what work would be required to rectify the problem. If it was merely a matter of squeezing sealant out of a tube, one would think that the time involved, and therefore the labour cost, would be minimal. If, on the other hand, some more complex was required to gain a proper seal, more time would be required. In this case, the estimates of Messrs Whitton and Rikys were close. On balance, it seems that the Rikys quote was probably reasonable. I would allow $165.

j. Aluminium window: Mr Williams made no allowance for this item. Mr Whitton's estimated cost of repair was $440. Mr Rikys's charge was $462. In the circumstances, the charge of $462 seems reasonable.

k. External doors: Mr Williams once again did not see any problems and made no allowance for this item. Mr Whitton estimated $1240 for repairs. Mr Rikys charged $1089. This is a rare instance in which Mr Rikys's charge was under Mr Whitton's estimate. I would allow Mr Rikys's charge.

l. Internal partition wall: Mr Williams conceded that this item was defective in part. He considered that only minor repairs were required and allowed $128 for materials and labour. Mr Whitton, however, estimated that the real cost of repairs would be $640. Mr Rikys charged $1716. Apart from the facts that Mr Rikys made provision for unforeseen contingencies and costed works on a "worst case" basis, and had come from Victoria, it is not clear on the evidence why Mr Rikys's charge was so much greater than Mr Whitton's estimate. There was no evidence of particular difficulties in making the repair. In my view, this charge was probably excessive. I would allow $1200 only, taking into account the various extras that Mr Rikys reasonably charged for.

m. Cornice preparation: Mr Williams did not allow for any sum in respect of this item. Mr Whitton considered that $1150 would be the cost of proper preparation of the cornices. Mr Rikys charged $1309. It is self-evident that the preparation of cornices for painting is labour-intensive work and therefore time-consuming. The estimates of Messrs Whitton and Rikys for this are were close. On balance, taking into account the special conditions obtaining, the sum of $1309 was probably reasonable.

n. Double step on threshold: Once more Mr Williams made no allowance for this repair. Mr Whitton estimated a cost of $720 to repair it whereas Mr Rikys charged only $627. I would allow Mr Rikys's charge.

o. Door jamb gaps: Mr Williams agreed that the gaps were present but considered that no repair was needed. Mr Whitton costed the repairs at $360. Mr Rikys charged $935. Once more, it is difficult to see why there was such a wide disparity between the estimates given by Messrs Whitton and Rikys. In this case, Mr Rikys's charge seems likely to have been excessive. Doing the best I can, I would split the difference between his quote and Mr Rikys's charge and allow $650.

p. Shower roses: This was an agreed defect. Mr Williams allowed $220 for the repair; Mr Whitton estimated the cost of repair at $180. The actual charge made by Mr Rikys was $187. I would therefore allow Mr Rikys's charge.

q. Tile in shower: This was an agreed defect caused by the negligence or poor workmanship of the tiler who installed tile in the shower recess. Mr Whitton estimated a cost of $180 for the repair. Mr Williams considered it such a minor matter that the small repair done with grout was adequate to deal with it without further work or cost. Mr Rikys charged $55. In my view, the cost applied by Mr Rikys seems fair and reasonable.

r. Installation of mirrors: I accepted Mr Smith's version of events in regard to the installation of mirrors. This was incomplete work and the question then becomes whether Mr Orr allowed a credit to the plaintiffs for the work they did. It would appear from his invoice of December 2000 that Mr Orr did so. It should also be noted that if Mr Smith installed the mirrors and Mr Rikys charged $297 for doing so, this was an overcharge and a credit should be given to the plaintiffs for it. In any event, the plaintiffs' claim fails in this respect.

s. Floor wastes: This was an incomplete work for which no credit was given by Mr Orr because he claimed that it was not a required work. No allowance was made by Mr Williams. Mr Whitton estimated a cost of $860 for the work. Mr Rikys charged $814 for it. I would allow Mr Rikys's charge.

t. Decking screws: This was another agreed defect. Mr Whitton estimated $350 for the repair and Mr Rikys charged $473. Mr Williams costed the repair at $200. Given the special conditions obtaining, and given that the estimates of Messrs Whitton and Rikys are at least "in the same ballpark" I think that Mr Rikys's charge was probably reasonable.

u. Ant-capping: This was an agreed defect. Mr Whitton allowed $1200 for repairs; Mr Rikys charged $2915 for this item. Mr Williams allowed only $90. Once again, it is difficult to see why there was such a disparity between the estimates given by Messrs Whitton and Rikys. At one point in his cross-examination, when one of Mr Whitton's estimates was put to him, Mr Rikys rather heatedly suggested that Mr Whitton could do the work for that price if he wanted to but he did not seek to explain why Mr Whitton's estimate was incorrect or based on a false premise. Once again, this seemed to be an instance of Mr Rikys possibly padding his bill against an unforeseen contingency which never, it seems, arose. In my view, it is more likely that Mr Whitton's estimate provides a more reasonable starting point. Making provision for the special conditions, I would allow $1800 for this item.

v. Verandah posts: Mr Whitton estimated the repairs of this item at $1300. Mr Rikys, on the other hand, charged $792 for the work. Mr Williams estimated a cost of $380 for this work. The weight of evidence suggests that Mr Rikys's charge was reasonable in this instance.

w. Sub-floor ventilation: This was an agreed defect. Mr Whitton allowed a sum of $850 for the work. Mr Rikys charged $638. Mr Williams conceded a cost of $220. The weight of evidence suggests that Mr Rikys's charge was reasonable in this instance.

x. Welding: Again, this was an agreed defect. Mr Whitton estimated a cost of $1200 for repairs; Mr Rikys charged $5896. Mr Williams rolled this item into the repairs to the verandah posts. Once again, it is not clear why there was such a disparity between the estimates of Messrs Whitton and Rikys for this work. Mr Rikys did not explain why it would cost nearly $6000. In cross-examination he did not dispute that the welder he had used had come from the town of Lake Cargelligo, had been paid by his painter and had cost $260. Even Mr Whitton's estimate appears, from a commonsense point of view as well as the concession made by Mr Rikys, to have been fairly generous. Given the concession made by Mr Rikys that his painter had paid the welder it appears that, in relation to this item, the cost of the welding was included in the cost of the painting. I will disallow the sum claimed for welding.

y. Cleaning of brickwork: This was an agreed defect. Mr Williams estimated a cost of $65 to clean the bricks; Mr Whitton estimated a cost of $260, whereas the actual charge applied by Mr Rikys was $165. I will allow the actual charge.

z. Downpipes: This was either an incomplete item for which no credit was offered by Mr Orr or a defect depending the point of view adopted. In my view it was a defect. Mr Whitton estimated a cost of $1850 to repair it. Mr Rikys charged $2805 for the work. Again, the disparity between the estimates is not adequately explained. Even making allowance for local conditions, the charge applied by Mr Rikys seems likely to have been excessive. I would allow $2200.

aa. Collapsed pier: Mr Whitton considered a cost of $580 reasonable for this repair. It is not known whether he included the cost of jacking up the building for that repair. Mr Rikys's charge was $1408. (Mr Williams offered no estimate as he did not think any rectification was required.) This was one of the few instances in which Mr Rikys offered any detail as to the work done. Mr Rikys did not explain, however, how much extra time (if any) was taken in jacking up the building, or whether this had entailed any unanticipated work, nor what materials were used or what work was actually done. It is implicit in the evidence that the building was jacked up that the pier was demolished and rebuilt but how much work and materials were involved remains unclear. In this case, I would allow $1000.

bb. Grouting benches: This was an item pleaded in the statement of claim. Mr Williams's report did not address it, nor did Mr Whitton's. Mr Kendall's report noted that the grouting between the benchtop and tiles in the laundry was defective. He did not provide a costing for the repair. He also noted that grout in the kitchen was missing at the end of a bench at the back door. In both the laundry and kitchen, a flexible sealant was required according to Mr Kendall. It is possible to extrapolate from other evidence given that the cost of re-grouting these areas, assuming that the jobs is not complex, is a relatively simple repair. I would allow $150 for this work.

cc. Bathroom and toilet doors: A claim was made in respect of both bathroom doors. Mr Kendall, once again, was the only expert to report on these items. He found that the en suite bathroom door was scraping the ground as was the toilet door. He provided no costing for re-hanging or planing and sealing the doors. Commonsense and ordinary experience of the world suggests that this is one or two hours work for a skilled tradesman. I would allow $80 for this item.

Lest my approach be misunderstood, I have generally taken the view that at least some of Mr Rikys's charges were extravagant because they bore little or no relation to the costs estimated by Mr Whitton who seemed to me to take a middle course between the attitudes adopted by Messrs William and Rikys. It is more likely than not that Mr Whitton's estimates are closer to what were the reasonable costs of repairs than those of either Mr Williams or Mr Rikys. My final assessment is reasonably close to that of Mr Whitton but takes into account an additional amount to be added in many cases to take into account that fact that the Rikys & Moylan team mostly came from Victoria.

Mr Williams, as I have explained, seemed to me to be overly protective of the defendant's position and gave ground only grudgingly to the plaintiffs. In addition I would add that Mr Williams failed to make any allowance for the fact that the Rikys & Moylan team mostly came from Victoria and were thus entitled to living-away-from-home allowance and accommodation expenses.

Mr Rikys's approach to insurance work I have already discussed.

Doing the best I can with the evidence available I assess the plaintiffs' damages in respect of defects and incomplete works as being a sum of $18,768. Claim for accommodation and removal expenses

The plaintiffs also make a claim for the costs of alternative accommodation during the fortnight commencing 6 June 2003. During this period the Smith family moved out of their house into the Lake Cargelligo caravan park. This cost $638. The reason for their move was that they were advised by Mr Rikys that the work in the house, especially the painting, was dangerous for children. It was also to enable the building trades people, especially the painters, to do their work more efficiently.

While it was conceded by the plaintiffs that it would theoretically have been possible for them to remain in the house and for the builders to have worked around them, in my view the expense of moving to the caravan park was reasonable in the circumstances given that the house would have been filled with paint fumes, tools, materials and people.

A claim was also made for removal expenses. This claim was to the sum of $3300 plus $900 for insurance of the home contents during the removal. The evidence in respect of this claim is sketchy. It is not obvious that it was necessary to remove most of the household contents from the house. Of course, it may well have been convenient for the builders and other tradespeople to have an empty house to work in but that does not necessarily make this aspect of the claim reasonable. With appropriate measures taken for the protection of the contents it seems likely that this cost could have been avoided. I would not allow the sum of $4200 claimed.

The plaintiffs' total damages, therefore, I would assess as being $19,406. The cross-claim 121. It was conceded by Mr Smith that Mr Orr had done work for which he had not been paid. Mr Orr's final invoice was a progress claim to the sum of $7351.90.

122. The Defence to the Cross-claim admitted that the sum was claimed in Mr Orr's final invoice but disputed that the moneys were owing because a number of works were incomplete. They were the timber thresholds on external door sills; mirrors; and floor wastes.

123. The cross-claim is largely a claim for variations to the original contract. The plaintiffs, as I understand it, do not dispute that the variations claimed for were performed.

124. The relevant evidence has been dealt with in relation to the plaintiffs' claim. The cross-claim is, in effect, in the nature of a set-off. Conclusion
125. In relation to their claim, there will be a verdict for the plaintiffs in the sum of $19,406.

126. In relation to the cross-claim, there will be a verdict for the cross-claimant in the sum of $7351.90

127. There will therefore be judgment for the plaintiffs in the sum of $12,054.10 plus interest from 23 January 2001, (the date of Mr Orr's final invoice).

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